BLACK'S
LAW DICTIONARY
Definitions of the Terms and Phrases of
American and English Jurisprudence,
Ancient and Modern
By
HENRY CAMPBELL BLACK, M. A.
Author of Treatises on Judgments, Tax Titles, Intoxicating Liquors,
Bankruptcy, Mortgages, Constitutional Law, Interpretation
of Laws, Rescission and Cancellation of Contracts, Etc.
REVISED FOURTH EDITION
BY
THE PUBLISHER'S EDITORIAL STAFF
ST. PAUL, MINN.
WEST PUBLISHING CO.
1968
COPYRIGHT
©
1891, 1910, 1933, 1951, 1957 WEST PUBLISHING COMPANY
COPYRIGHT 0 1968
By
WEST PUBLISHING CO.
Black's Law Dictionary 4th Ed. Rev.
6-1971
PREFACE
REVISED FOURTH EDITION
THE sustained and growing popularity of BLACK'S LAW DICTIONARY since its appearance more than seventy five years ago is a strikiig tribute to the scholarship and learning of Henry Campbell Black,
and to the essential soundness of the plan adopted by him for the
compilation of a legal lexicon.
In accordance with the original plan of this work, consistently
adhered to in all subsequent editions, the law student, confronted in
his casebooks with reports from the Year Books, or with extracts
from Glanvil, Bracton, Littleton, or Coke, will find in this dictionary
an unusually complete collection of definitions of terms used in old
English, European, and feudal law. The student will also find in this
volume, on page 1795, a useful Table of British Regnal Years, listing
the sovereigns of England for more than 900 years, together with the
date of accession to the throne, and the length of reign.
BLACK'S LAW DICTIONARY has proven its value through the
years to the busy practitioner, judge and law student who requires
quick and convenient access to the meanings of legal terms and phrases found in statutes or judicial opinions, as well as to the special legal
meanings of standard English words—meanings which frequently cannot be found in the ordinary English language dictionaries.
In the period of more than thirty five years since the publication
of the Third Edition, the law has undergone substantial changes and
developments. The vocabulary of the law has shown corresponding
change and growth. A word, in the often quoted dictum of Mr. Justice
Holmes, is "the skin of a living thought," and the words of statutes
and judicial opinions reflect the contemporary thinking of legislators
and jurists. In order adequately to represent this thinking in the
fourth edition, a patient examination was made of the thousands of
opinions handed down by the appellate courts each year. Some revisions and additions have been included in this Revised Fourth Edition
Abbreviations of common words and phrases likely to be encountered by the user are explained in appropriate places throughout
the main body of the work. A Table of Abbreviations of the titles of
law reports, textbooks, and other legal literature is contained in the
back of the volume and a Guide to Pronunciation is included in the
front of the volume.
New features in this Revised Fourth Edition include the following:
Code of Professional Responsibility
Canons of Judicial Ethics
An Outline of the Minimum Requirements for
Admission to Legal Practice in the United States
III
PREFACE—REVISED FOURTH EDITION
In order that BLACK'S LAW DICTIONARY should continue to
be a handy one-volume work of ready reference, the enlarged contents
of the Fourth Edition necessitated an improved typographical style.
The type for the Fourth Edition was accordingly completely reset and
arranged in wider columns, in a more attractive and readable manner.
The Publisher has drawn freely on its wide experience to make
the present edition of BLACK'S LAW DICTIONARY superior to any
of the earlier editions. It is confidently believed that this edition, both
in content and format, sets new standards of excellence among law
dictionaries.
THE PUBLISHER
ST. PAUL, MINN.
June, 1968
CONTENTS
Page
Preface—Revised Fourth Edition - - - - - - - - - - - - - - - - - - -
III
Front Matter
Guide to Pronunciation - - - - - - - - - - - - - - - - - - - - - - - - VII
Code of Professional Responsibility - - - - Canons of Judicial Ethics - - - - - - - - - - - - - - - - - - - - - - LXIX
Minimum Requirements for Admission to Legal Practice
in the United States - - - - - - - - - - - - - - - - - - - - - - - - LXXV
Text of Definitions - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
--1
Back Matter
Table of British Regnal Years - - - - - - - - - - - - - - - - - - - 1795
Abbreviations - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1797
Black's Law Dictionary 4th Ed. Rev.
GUIDE TO PRONUNCIATION
A NOTE ON PRONUNCIATION OF LATIN
One of the difficulties in pronouncing legal terms is that one commonly hears both the English system and the Roman system of pronouncing Latin words. Before 1900, the English pronunciation of
Latin had developed for legal, medical, and other scientific terms.
During the second half of the nineteenth century, scholars established that what is now known as the Roman pronunciation was used
between 50 B.C. and 50 A.D. Nearly all schools in English-speaking
countries adopted the Roman system of pronunciation. But by and
large, the English pronunciation has persisted among lawyers, physicians, and scientists.
The main difference between the Roman and the English pronunciation of Latin is in the long sounds of a, e, and i. In English
these sounds are a, ë, and I; in Roman, a is a; e is a; and i is -6.
The dominant usage among lawyers today is probably the English
pronunciation, but the Roman system taught in the schools still has
its influence. Lawyers who studied Latin in school often tend toward
the Roman, and others often tend toward the English. Yet nearly
all use both systems, or variations from both systems, to some extent.
For instance, many lawyers use the English pronunciation,
réz jo–O'di-kalia, but many lawyers prefer to say raz
is neither English nor Roman but a mixture. The Roman ras
yOrYdl-ca-ta is seldom if ever heard. Probably all lawyers use the
English ha'be-as corpus or ha'bèz corpus; a lawyer who tries to get
his client out of jail by asking for a writ of ha'bd-as corpus might not
be understood. Yet the prevailing practice is probably to use the
Roman d-më'cils cure-I, and not the English d-mi'cils cferi-ë. One
usually hears the mixture, sine qua non; one seldom if ever hears the
English One qua non.
The following list is devoted mostly but not altogether to Latin
words. For those words the English pronunciation is always in first
place, followed by the Roman or a variation of the Roman whenever it is known to be widely used. The English pronunciation is
never incorrect in the view of lexicographers, although local or general usage may often cause some lawyers to prefer a pronunciation
other than the English. As the study of Latin in the schools declines
still further, the English pronunciation is likely to continue to increase.
If a uniform system is ever achieved, it is much more likely to
be the English than the Roman.
VII
GUIDE TO PRONUNCIATION
KEY TO PRONUNCIATION
Make; chaotic; care; cat; art; across; eat; evade; ebb; runner;
ice; hit; oak; Obey; Order; hot; food; foot; Unit; unite; Urge; up;
N (French nasal, as in ensemble, aN saN'b1).
a fortiori
a mensa et thoro
a priori
ab inconvenienti
ab initio
actio in rem
ad idem
affiant
agister
aleatory
aliquot
ambulatory
amicus curiae
animo revertendi
animo testamenti
appellant
appellate
appellee
assignee
autre vie, pur
bona fides
bona vacantia
capias
casus belli
casus foederis
casus fortuitus
casus omissus
causa causans
causa mortis
causa sine qua ncn
caveat emptor
certiorari
cestui que trust
chose
a fOr'shi-O'ri
a men'sd et thO'rel
a pri-O'ri, pri-O'ri; d' pri-ore
ab in'cOn-ve'n1-en'ti
ab
ak'shi-O in rem
ad i'dem
a-firant
d-fisler
a'16-a-tO'ff; -ter-I
al'i-kwOt
a-mi'kfis kteri-e; a-me'cUs
rev'er-ten'di
an'i-mO tesla-men't1
a-pel'ant
ap'e-le'
poor Ot're ve
bO'nd fi'dez
bO'na
ka'pi-as; kap'i-as
ka'sfis bell*
ka'stis fed'er-is
for-tfti-tils
kO'zänz; kou'zd kou'zdnz
kO'za mortis; kou'zd mOr'tis
kO'zd sine kwa nOn'; kou'zà, sine kwd nOn
ka've-at emp'tOr; kä've-at
sfir'shi-O-rarl;
set'i ka trust
shOz
VIII
GUIDE TO PRONUNCIATION
codicil
consortium
contra bonos mores
coram nobis
corpus delicti
corpus juris
curtesy
cy-pres
damnum absque injuria
de bene esse
de facto
de jure
de novo
del credere
delegatus non potest
delegare
demesne
demur
demurrer
descriptio personae
detinue
devise
devisee
domicile
dominium
keid'i-s11
kein-sOeshi-um
kein'tra 13 45'nOs
mO'rez
IcO'ram
Weptls jo—O'ris
se' pra'
ddm'niim abs'kwe in-jeWri-A
de Wile es'e
de fdlc'tel
de jOb're
de nO'vO"
del kred'er-e; kre'der-e
non pa'tést délie-ga!re
de-man', -men'
de-mileêr
de-skrip'shi-6 per-sO'ne
de-viz'
dév'i-ze'; d0-viz'e'
donatio mortis causa
do-nd'shi-e5 mortis laza; kou'zd
duces tecum
ejusdem generis
eleemosynary
en ventre sa mere
enfeoff
ex gratis
ex parte
ex post facto
exequatur
expressio unius est
exclusio alterius
facias
(scire facias)
(fieri facias)
falsa demonstratio
feme covert
feme sole
da'ses tê'ktim
jen'er-is
el'e-e;
aN vaN'te sa' mar'
en-fer ; en-fer
eks gra'shi-a
eks pa.ete
Rs post fak'tO
ék'se-kwa'tër
elcs-presh'I-6 ffni-as est eks-klaTi'zhi-ti
al-Writ-Us
fä.'shi-as
sire fa'shi-ds
fi'e-ri fa'shi-as
demon-strd'slii-E•
fern kilv'ért
fern sOl
lx
GUIDE TO PRONUNCIATION
ferae naturae
force majeure
forma pauperis, in
functus officio
gratis
gravamen
habeas corpus
ignorantia juris
imperium
imprimatur
in esse
in extremis
in fieri
in futuro
in limine
in loco parentis
in pays
in pari delicto
in pari materia
in personam
in praesenti
in re
in rem
in toto
in transitu
indebitatus assumpsit
indicia
indictment
inter partes
inter se
inter vivos
intra vires
jura in re
jus
jus accrescendi
jus civile
jus gentium
jus naturale
jus tertii
lathes
lessee
lex domicilii
fe"r"e na-tiVre
fors' rrazhile
in fOr'md pope-ris
ffingklas
gratis
grd-vYmen
hä'be-as ki5eptis; ha.'136z
Ig'nO-rdn'shi-d jo-Vris
im'pri-mater; -priin es'è
in eks-tre'mis
in fire-ri
in fil-tferO
in limq-ne
in WM pd-ren'tis
in pa
in pä'ri de-lic't6;
in pa'ri ma-tê'ff-d; 0'A
in per-sO'ndm
in pre-zèn'ti
in re
In rem
in bYtO
in trän'si-til
in-debl-täVis, In-dal-M.1as;
A-samp'sit,
In-difment
inter par'tez
in'ter se'
inter
in'tra vi'rez
jaYrd in re
bus
jus akTO-sen'di
jus si-viTe
jus jen'shi-um
jus närA-rd'le
jus
läch'ez
Mks 1016ml-sing
GUIDE TO PRONUNCIATION
lex forl
léks
lex loci
Mks 16'si
lex situs
Mks siVis
lien
ré'en; len
locus standi
stdn'di
maga fi'dez; ma'1a
mala fides
mandamus
ma'rê
mare clausum
mare klou'zihn
mare liberum
mare
mare lé'be-ram
ménz
mens rea
men; man
mesne
mutatis mutandis
mu-fan'dis
ne ek's 6-dt re-ptabli-ka
ne exeat republica
ni'hil -est
nihil est
ni'si
nisi prius
nOl'é prOs'e-kwi; prose-kwi
nolle prosequi
non est fäletilm
non est factum
non obstante veredicto nOn Ob-stan'tê vèr'e-dik'tO
nOn sèk'wi-ter
non sequitur
paklarn
nudum pactum
ba'na
nulla bona
nfingk' pra t tangk'
nunc pro tune
Obri-ter dik'tilm, Ob'i-ter
obiter dictum
613-11-0.'shi-O
obligatio
Ob
obligee
Obqi-gOr
Ob
obligor
O'nfis pro-bdn'di
onus probandi
pa'renz pa'tri-ê, pätrénz
parens patriae
pätri
pa'ri
pari delicto
s
pari pas u; pär'i pas'156
pari passu
parli-sops krim'i-nis
particeps criminis
pen-den' to li'tê
pendente lite
per-sO'nd nOn grata
persona non grata
plO'nê ad-mini-stra'vit
plene administravit
poenitentiae, locus
poste-a
postea
prês'i-pe; pre'si-pe
praecipe
prima fa'shi-ê; fa'sh6
prima facie
profit a praN'de
profit a prendre
pro rata; rata
pro rata
joTh'ris
publici juris
kwa; kwa
qua
kwê'r6
quaere
XI
GUIDE TO PRONUNCIATION
quantum meruit
quantum valebat
quare clausum fregit
quasi
qui facit per alium
facit per se
quia timet
quo warranto
ratio decidendi
rebus sic stant:bus
renvoi
res
res gestae
res inter alios acta
res ipsa loquitur
res judicata
restitutio in integrum
sans recours
scienter
scire facias
secus
semble
seriatim
sine die
sine qua non
solatium
stare decisis
status quo
sub judice
subpoena
subpoena duces tecum
suggestio falsi
sui generic
sui juris
supersedeas
suppressio yeti
tabula rasa
ubi jus, ibi remed:um
ultra vires
uxor
venue
vis major
volenti non fit injuria
kwOn'tilm mèr'66-It; mer11-it
kwOn'tilm vá-letat
kwa're kleezilm fre'fit,
kwa'si; kwa'si
kwi fa'sit per d'li-um fd'sit per se
trmét
kwO w15-ran'tO
ra'shi-O dès'i-dèn'di
rebus sik
ren-voi'; raN'vwd
rez; raz
rez jes'te; raz Ks'ti
rez inter
ak'td
rez
lOk'wi-ter; raz
rez jo-Vdi-käftd, raz
res i ti-ta'shi-O in in'te-gram
saN re-koor'
si-e-n'tér
si're fd'shi-as
sernt'l
serii-d'tim;
dre
sine qua non; sine qua non
sta're de-srsis, stare
status kwe•
sub jaii'di-se
sii-pe'nd
sti-pe'nd;
farsi
sfei jen'ér-is
sa ri jo-O'ris
super-se'de-as
ve'ri
rd'sa
u'bi jus, i'bI
ultra vi'rez
ven'a
vis major
vel-lén'ti am fit in-jdO'fi-a
XII
te'kiim
CODE OF PROFESSIONAL RESPONSIBILITY *
Table of Contents
Page
PREAMBLE AND PRELIMINARY STATEMENT .............. ......... XVII
CANON 1. A LAWYER SHOULD ASSIST IN MAINTAINING THE
INTEGRITY AND COMPETENCE OF THE LEGAL PROFESSION ............................................................. ........XIX
Ethical Considerations .......................................................... ........XIX
Disciplinary Rules ................................................................ ......... XX
DR 1-101 Maintaining Integrity and Competence of the Legal
Profession ............................................................... XX
DR 1-102 Misconduct .................................................... ......... XX
DR 1-103 Disclosure of Information to Authorities ......... ........XXI
CANON 2. A LAWYER SHOULD ASSIST THE LEGAL PROFESSION
IN FULFILLING ITS DUTY TO MAKE LEGAL COUNSEL
AVAILABLE ......................................................... ........XXI
Ethical Considerations ............................................................ ........XXI
Recognition of Legal Problems ........................................ ........ XXI
Selection of a Lawyer: Generally ......................... ......... XXIII
Selection of a Lawyer: Professional Notices and Listings .
XXIII
Financial Ability to Employ Counsel: Generally ..................... XXV
Financial Ability to Employ Counsel:
Persons Able to Pay Reasonable Fees ....................... .......XXV
Financial Ability to Employ Counsel:
Persons Unable to Pay Reasonable Fees ......... ......... XXVII
Acceptance and Retention of Employment ............ ......... XXVIII
Disciplinary Rules ...................................................... .............. XXIX
DR 2-101 Publicity in General ............................ .............. XXIX
DR 2-102 Professional Notices, Letterheads, Offices, and Law
Lists ................................................... .............. XX IX
DR 2-103 Recommendation of Professional Employment XXXII
DR 2-104 Suggestion of Need of Legal Services ......... XXXIII
DR 2-105 Limitation of Practice .................................. XXXIII
DR 2-106 Fees for Legal Services ...................... ........ XXXIV
DR 2-107 Division of Fees Among Lawyers ........ ........ XXXIV
DR 2-108 Agreements Restricting the Practice of a Lawyer XXXV
DR 2-109 Acceptance of Employment ................. ........ XXXV
DR 2-110 Withdrawal from Employment ........... ........ XXXV
CANON 3. A LAWYER SHOULD ASSIST IN PREVENTING THE
UNAUTHORIZED PRACTICE OF LAW .............. XXXVI
Ethical Considerations ......................................................... XXXVI
Disciplinary Rules ....................................................... ........
DR 3-101 Aiding Unauthorized Practice of Law .. ........
DR 3-102 Dividing Legal Fees with a Non-Lawyer ........
DR 3-103 Forming a Partnership with a Non-Lawyer . .
XXXVIII
XXXVIII
XXXVIII
XXXVIII
* Adopted by the American Bar Association at annual meeting in
Dallas, Texas, on Aug. 12, 1969. Copyrighted by American Bar
Association. Published with permission.
XIII
CODE OF PROFESSIONAL RESPONSIBILITY
Page
CANON 4. A LAWYER SHOULD PRESERVE THE CONFIDENCES
AND SECRETS OF A CLIENT ............................ XXXVIII
Ethical Considerations ................................................. ........ XXXVIII
Disciplinary Rules ...................................................... ........ XXXIX
DR 4-101 Preservation of Confidences and Secrets of a
Client ......................................................... XXXIX
CANON 5. A LAWYER SHOULD EXERCISE INDEPENDENT PROFESSIONAL JUDGMENT ON BEHALF OF A CLIENT XLI
Ethical Considerations .................................................................... XLI
Interests of a Lawyer That May Affect His Judgment ................. XLI
Interests of Multiple Clients ................................ ................ XLIII
Desires of Third Persons .............................................. ........ XLV
Disciplinary Rules ...................................................................... XLVI
DR 5-101 Refusing Employment When the Interests of the
Lawyer May Impair His Independent Professional
Judgment ............................................ ................ XLVI
DR 5-102 Withdrawal as Counsel When the Lawyer Becomes
a Witness ............................................................. XLVI
DR 5-103 Avoiding Acquisition of Interest in Litigation .
XLVI
DR 5-104 Limiting Business Relations with a Client ....
XLVII
DR 5-105 Refusing to Accept or Continue Employment if the
Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer ..
XLVII
DR 5-106 Settling Similar Claims of Clients ....................... XLVII
DR 5-107 Avoiding Influence by Others Than the Client
XLVII
CANON 6. A LAWYER SHOULD REPRESENT A CLIENT COMPETENTLY ........................................................ XLVIII
Ethical Considerations .......................................................... XLVIII
Disciplinary Rules ...................................................................... XLIX
DR 6-101 Failing to Act Competently ................................... XLIX
DR 6-102 Limiting Liability to Client .......................... ....... XLIX
CANON 7. A LAWYER SHOULD REPRESENT A CLIENT ZEALOUSLY WITHIN THE BOUNDS OF THE LAW ......... XLIX
Ethical Considerations .......................................................... ....... XLIX
Duty of the Lawyer to a Client ................................................. LI
Duty of the Lawyer to the Adversary System of Justice ..
LIV
Disciplinary Rules ....................................................... ...............LVIII
DR 7-101 Representing a Client Zealously ................. ....... LVIII
DR 7-102 Representing a Client within the Bounds of the Law LVIII
DR 7-103 Performing the Duty of Public Prosecutor or Other
Government Lawyer ...............................................LIX
DR 7-104 Communicating with One of Adverse Interest .
LIX
DR 7-105 Threatening Criminal Prosecution ...........................LIX
DR 7-106 Trial Conduct ...................................... ...................LIX
DR 7-107 Trial Publicity ..................................... ....................LX
DR 7-108 Communication with or Investigation of Jurors
LXII
DR 7-109 Contact with Witnesses ....................................... LXII
DR 7-110 Contact with Officials .......................... ................. LXII
XIV
CODE OF PROFESSIONAL RESPONSIBILITY
Page
CANON 8. A LAWYER SHOULD ASSIST IN IMPROVING THE LEGAL
SYSTEM ............................................................ .........LXIII
Ethical Considerations ......................................................... ........ LXIII
Disciplinary Rules ...................................................... .................LXIV
DR 8-101 Action as a Public Official .................. ................ LXIV
DR 8-102 Statements Concerning Judges and Other Adj udicatory Officers ........................................ .................. LXV
CANON 9. A LAWYER SHOULD AVOID EVEN THE APPEARANCE
OF PROFESSIONAL IMPROPRIETY ......... ..................LXV
Ethical Considerations ................................................. .................. LXV
Disciplinary Rules ....................................................................... LXVI
DR 9-101 Avoiding Even the Appearance of Impropriety
LXVI
DR 9-102 Preserving Identity of Funds and Property of a
Client ....................................................... ......... LXVI
DEFINITIONS .......................................................................... ........LXVII
xv
CODE OF PROFESSIONAL RESPONSIBILITY
With amendments to February 24, 1970
PREAMBLE AND PRELIMINARY
STATEMENT
The Code of Professional Responsibility points
the way to the aspiring and provides standards by
which to judge the transgressor. Each lawyer
must find within his own conscience the touchstone against which to test the extent to which his
actions should rise above minimum standards.
But in the last analysis it is the desire for the respect and confidence of the members of his profession and of the society which he serves that
should provide to a lawyer the incentive for the
highest possible degree of ethical conduct. The
possible loss of that respect and confidence is the
ultimate sanction. So long as its practitioners are
guided by these principles, the law will continue to
be a noble profession. This is its greatness and its
strength, which permit of no compromise.
Preamble 1
The continued existence of a free and democratic
society depends upon recognition of the concept
that justice is based upon the rule of law grounded
in respect for the dignity of the individual and his
capacity through reason for enlightened self-government. 2 Law so grounded makes justice possible, for only through such law does the dignity of
the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and
rational self-government is impossible.
Lawyers, as guardians of the law, play a vital
role in the preservation of society. The fulfillment
of this role requires an understanding by lawyers
of their relationship with and function in our legal
system. 3 A consequent obligation of lawyers is
to maintain the highest standards of ethical conduct.
In fulfilling his professional responsibilities, a
lawyer necessarily assumes various roles that require the performance of many difficult tasks.
Not every situation which he may encounter can
be foreseen, 4 but fundamental ethical principles
are always present to guide him. Within the
framework of these principles, a lawyer must with
courage and foresight be able and ready to shape
the body of the law to the ever-changing relationships of society.5
1 The footnotes are intended merely to enable the reader
to relate the provisions of this Code to the ABA Canons of
Professional Ethics adopted in 1908, as amended, the Opinions of the ABA Committee on Professional Ethics, and a
li mited number of other sources; they are not intended
to be an annotation of the views taken by the ABA Special
Committee on Evaluation of Ethical Standards. Footnotes
citing ABA Canons refer to the ABA Canons of Professional
Ethics, adopted in 1908, as amended.
2
Cf. ABA Canons, Preamble.
3
"[T]he lawyer stands today in special need of a clear
understanding of his obligations and of the vital connection
between those obligations and the role his profession plays
in society." Professional Responsibility: Report of the
Joint Conference, 44 A.B.A.J. 1159, 1160 (1958).
4 "No general statement of the responsibilities of the legal
profession can encompass all the situations in which the
lawyer may be placed. Each position held by him makes
its own peculiar demands. These demands the lawyer must
clarify for himself in the light of the particular role in
which he serves." Professional Responsibility: Report of
the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958).
Black's Law Dictionary 4th Ed. Rev.-b
Preliminary Statement
In furtherance of the principles stated in the
Preamble, the American Bar Association has
promulgated this Code of Professional Responsibility, consisting of three separate but interrelated
parts: Canons, Ethical Considerations, and Disciplinary Rules. 6 The Code is designed to be
adopted by appropriate agencies both as an inspirational guide to the members of the profession
and as a basis for disciplinary action when the
conduct of a lawyer falls below the required minimum standards stated in the Disciplinary Rules.
Obviously the Canons, Ethical Considerations,
and Disciplinary Rules cannot apply to non-lawyers; however, they do define the type of ethical
conduct that the public has a right to expect not
5
"The law and its institutions change as social conditions change. They must change if they are to preserve,
much less advance, the political and social values from
which they derive their purposes and their life. This is
true of the most important of legal institutions, the profession of law. The profession, too, must change when
conditions change in order to preserve and advance the
social values that are its reasons for being." Cheatham,
Availability of Legal Services: The Responsibility of the
Individual Lawyer and the Organized Bar, 12 U.C.L.A.L.
Rev. 438, 440 (1965).
6
The Supreme Court of Wisconsin adopted a Code of
Judicial Ethics in 1967. "The code is divided into standards and rules, the standards being statements of what
the general desirable level of conduct should be, the rules
being particular canons, the violation of which shall subject an individual judge to sanctions." In re Promulgation
of a Code of Judicial Ethics, 36 Wis.2d 252, 255, 153 N.W.
2d 873, 874 (1967).
The portion of the Wisconsin Code of Judicial Ethics
entitled "Standards" states that "[t]he following standards set forth the significant qualities of the ideal judge
. . . ." Id., 36 Wis.2d at 256, 153 N.W.2d at 875. The
portion entitled "Rules" states that "[t]he court promulgates the following rules because the requirements of Judi-
XVII
CODE OF PROFESSIONAL RESPONSIBILITY
only of lawyers but also of their non-professional
employees and associates in all matters pertaining
to professional employment. A lawyer should
ultimately be responsible for the conduct of his
employees and associates in the course of the professional representation of the client.
The Canons are statements of axiomatic norms,
expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system,
and with the legal profession. They embody the
general concepts from which the Ethical Considerations and the Disciplinary Rules are derived.
The Ethical Considerations are aspirational in
character and represent the objectives toward
which every member of the profession should
strive. They constitute a body of principles upon
which the lawyer can rely for guidance in many
specific situations.7
The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being
subject to disciplinary action. Within the framecial conduct embodied therein are of sufficient gravity to
warrant sanctions if they are not obeyed . . . ." Id.,
36 Wis.2d at 259, 153 N.W.2d at 876.
7
"Under the conditions of modern practice it is peculiarly necessary that the lawyer should understand, not merely the established standards of professional conduct, but
the reasons underlying these standards. Today the lawyer
plays a changing and increasingly varied role. In many
developing fields the precise contribution of the legal profession is as yet undefined." Professional Responsibility:
Report of the Joint Conference, 44 A.B.A.J. 1159 (1958).
"A true sense of professional responsibility must derive
from an understanding of the reasons that lie back of
specific restraints, such as those embodied in the Canons.
The grounds for the lawyer's peculiar obligations are to
be found in the nature of his calling. The lawyer who
seeks a clear understanding of his duties will be led to
reflect on the special services his profession renders to society and the services it might render if its full capacities
were realized. When the lawyer fully understands the
nature of his office, he will then discern what restraints
are necessary to keep that office wholesome and effective."
Id.
8
"Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer. . . . He is
accordingly entitled to procedural due process, which includes fair notice of the charge." In re Ruffalo, 390 U.S.
544, 550, 20 L.Ed.2d 117, 122, 88 S.Ct. 1222, 1226 (1968),
rehearing denied, 391 U.S. 961, 20 L.Ed.2d 874, 88 S.Ct.
1833 (1968).
"A State cannot exclude a person from the practice of
law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection
Clause of the Fourteenth Amendment. . . . A State
can require high standards of qualification . . . but
any qualification must have a rational connection with the
applicant's fitness or capacity to practice law." Schware
v. Bd. of Bar Examiners, 353 U.S. 232, 239, 1 L.Ed.2d 796,
801-02, 77 S.Ct. 752, 756 (1957).
"[A]n accused lawyer may expect that he will not be
condemned out of a capricious self-righteousness or denied
the essentials of a fair hearing." Kingsland v. Dorsey, 338
U. S. 318, 320, 94 L. Ed. 123, 126, 70 S.Ct. 123, 124-25 (1949).
"The attorney and counsellor being, by the solemn judicial act of the court, clothed with his office, does not hold
work of fair trial, 8 the Disciplinary Rules should
be uniformly applied to all lawyers, 9 regardless of
the nature of their professional activities. 10 The
Code makes no attempt to prescribe either disciplinary procedures or penalties 11 for violation of
a Disciplinary Rule, 12 nor does it undertake to define standards for civil liability of lawyers for
professional conduct. The severity of judgment
against one found guilty of violating a Disciplinary
Rule should be determined by the character of
the offense and the attendant circumstances. 13 An
enforcing agency, in applying the Disciplinary
Rules, may find interpretive guidance in the basic
principles embodied in the Canons and in the objectives reflected in the Ethical Considerations.
it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes,
is something more than a mere indulgence, revocable at
the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by
the judgment of the court, for moral or professional delinquency." Ex parte Garland, 71 U.S. (4 Wall.) 333, 37879, 18 L. Ed. 366, 370 (1866).
See generally Comment, Procedural Due Process and
Character Hearings for Bar Applicants, 15 Stan.L.Rev. 500
(1963).
9
"The canons of professional ethics must be enforced
by the Courts and must be respected by members of the
Bar if we are to maintain public confidence in the integrity and impartiality of the administration of justice."
In re Meeker, 76 N.M. 354, 357, 414 P.2d 862, 864 (1966),
appeal dismissed, 385 U.S. 449 (1967).
10 See ABA Canon 45.
"The Canons of this Association govern all its members,
irrespective of the nature of their practice, and the application of the Canons is not affected by statutes or regulations governing certain activities of lawyers which may
prescribe less stringent standards." ABA Comm. on Professional Ethics, OPINIONS, No. 203 (1940) [hereinafter
each Opinion is cited as "ABA Opinion"].
Cf. ABA Opinion 152 (1936).
11 "There is generally no prescribed discipline for any
particular type of improper conduct. The disciplinary
measures taken are discretionary with the courts, which
may disbar, suspend, or merely censure the attorney as
the nature of the offense and past indicia of character may
warrant." Note, 43 Cornell L.Q. 489, 495 (1958).
12 The Code seeks only to specify conduct for which a
lawyer should be disciplined. Recommendations as to the
procedures to be used in disciplinary actions and the gravity of disciplinary measures appropriate for violations of
the Code are within the jurisdiction of the American Bar
Association Special Committee on Evaluation of Disciplinary Enforcement.
13 "The severity of the judgment of this court should be
in proportion to the gravity of the offenses, the moral
turpitude involved, and the extent that the defendant's acts
and conduct affect his professional qualifications to practice law." Louisiana State Bar Ass'n v. Steiner, 204 La.
1073, 1092-93, 16 So.2d 843, 850 (1944) (Higgins, J., concurring in decree).
"Certainly an erring lawyer who has been disciplined
and who having paid the penalty has given satisfactory
evidence of repentance and has been rehabilitated and restored to his place at the bar by the court which knows
him best ought not to have what amounts to an order of
permanent disbarment entered against him by a federal
court solely on the basis of an earlier criminal record and
without regard to his subsequent rehabilitation and present good character . . .. We think, therefore, that
the district court should reconsider the appellant's appli-
XVIII
CODE OF PROFESSIONAL RESPONSIBILITY
seek to practice law. To assure the maintenance
of high moral and educational standards of the
legal profession, lawyers should affirmatively assist courts and other appropriate bodies in promulgating, enforcing, and improving requirements
for admission to the bar. 4 In like manner, the bar
has a positive obligation to aid in the continued
improvement of all phases of pre-admission and
post-admission legal education.
CANON 1
A Lawyer Should Assist in Maintaining the
Integrity and Competence of the
Legal Profession
ETHICAL CONSIDERATIONS
EC 1-1 A basic tenet of the professional respon-
sibility of lawyers is that every person in our society should have ready access to the independent
professional services of a lawyer of integrity and
competence. Maintaining the integrity and improving the competence of the bar to meet the
highest standards is the ethical responsibility of
every lawyer.
EC 1-3 Before recommending an applicant for
admission, a lawyer should satisfy himself that
the applicant is of good moral character. Although
a lawyer should not become a self-appointed investigator or judge of applicants for admission,
he should report to proper officials all unfavorable information he possesses relating to the
character or other qualifications of an applicant.5
EC 1-2 The public should be protected from those
who are not qualified to be lawyers by reason of
a deficiency in education 1 or moral standards 2
or of other relevant factors 3 but who nevertheless
EC 1-4 The integrity of the profession can be
maintained only if conduct of lawyers in violation
of the Disciplinary Rules is brought to the attention of the proper officials. A lawyer should reveal voluntarily to those officials all unprivileged
knowledge of conduct of lawyers which he believes
clearly to be in violation of the Disciplinary
Rules. 6 A lawyer should, upon request, serve on
and assist committees and boards having responsibility for the administration of the Disciplinary
Rules."'
cation for admission and grant it unless the court finds
it to be a fact that the appellant is not presently of good
moral or professional character." In re Dreier, 258 F.2d
68, 69-70 (3d Cir. 1958).
1 "[W]e cannot conclude that all educational restrictions
[on bar admission] are unlawful. We assume that few
would deny that a grammar school education requirement,
before taking the bar examination, was reasonable. Or
that an applicant had to be able to read or write. Once
we conclude that some restriction is proper, then it becomes
a matter of degree—the problem of drawing the line.
"We conclude the fundamental question here is whether
Rule IV, Section 6 of the Rules Pertaining to Admission
of Applicants to the State Bar of Arizona is 'arbitrary,
capricious and unreasonable.' We conclude an educational
requirement of graduation from an accredited law school
is not." Hackin v. Lockwood, 361 F.2d 499, 503-04 (9th
Cir. 1966), cert. denied, 385 U.S. 960, 17 L.Ed.2d 305, 87
S.Ct. 396 (1966).
EC 1-5 A lawyer should maintain high standards
of professional conduct and should encourage fellow lawyers to do likewise. He should be temperate and dignified, and he should refrain from all
"Every state in the United States, as a prerequisite for
admission to the practice of law, requires that applicants
possess 'good moral character.' Although the requirement
is of judicial origin, it is now embodied in legislation in
most states." Comment, Procedural Due Process and Character Hearings for Bar Applicants, 15 Stan.L.Rev. 500
(1963).
"Good character in the members of the bar is essential
to the preservation of the integrity of the courts. The
duty and power of the court to guard its portals against
intrusion by men and women who are mentally and morally
dishonest, unfit because of bad character, evidenced by
their course of conduct, to participate in the administrative law, would seem to be unquestioned in the matter of
preservation of judicial dignity and integrity." In re
Monaghan, 126 Vt. 53, 222 A.2d 665, 670 (1966).
"Fundamentally, the question involved in both situations [i.e. admission and disciplinary proceedings] is the
same—is the applicant for admission or the attorney sought
to be disciplined a fit and proper person to be permitted
to practice law, and that usually turns upon whether he
has committed or is likely to continue to commit acts of
moral turpitude. At the time of oral argument the attorney for respondent frankly conceded that the test for
admission and for discipline is and should be the same.
We agree with this concession." Hallinan v. Comm. of
Bar Examiners, 65 Cal.2d 447, 453, 421 P.2d 76, 81, 55 Cal.
Rptr. 228, 233 (1966).
2
3
"Proceedings to gain admission to the bar are for the
purpose of protecting the public and the courts from the
ministrations of persons unfit to practice the profession.
Attorneys are officers of the court appointed to assist the
court in the administration of justice. Into their hands
are committed the property, the liberty and sometimes
the lives of their clients. This commitment demands a
high degree of intelligence, knowledge of the law, respect
for its function in society, sound and faithful judgment
and, above all else, integrity of character in private and
professional conduct." In re Monaghan, 126 Vt. 53, 222
A.2d 665, 676 (1966) (Holden, C. J., dissenting).
4
"A bar composed of lawyers of good moral character
is a worthy objective but it is unnecessary to sacrifice vital
freedoms in order to obtain that goal. It is also important
both to society and the bar itself that lawyers be uninti midated—free to think, speak, and act as members of an
Independent Bar." Konigsberg v. State Bar, 353 U.S. 252,
273, 1 L.Ed.2d 810, 825, 77 S.Ct. 722, 733 (1957).
5
See ABA Canon 29.
6
ABA Canon 28 designates certain conduct as unprofessional and then states that : "A duty to the public and
to the profession devolves upon every member of the Bar
having knowledge of such practices upon the part of any
practitioner immediately to inform thereof, to the end
that the offender may be disbarred." ABA Canon 29
states a broader admonition : "Lawyers should expose
without fear or favor before the proper tribunals corrupt
or dishonest conduct in the profession."
7
"It is the obligation of the organized Bar and the individual lawyer to give unstinted cooperation and assistance
to the highest court of the state in discharging its function
and duty with respect to discipline and in purging the
profession of the unworthy." Report of the Special Committee on Disciplinary Procedures, 80 A.B.A.Rep. 463, 470
(1955).
XIX
CODE OF PROFESSIONAL RESPONSIBILITY
illegal and morally reprehensible conduct. 8 Because of his position in society, even minor violations of law by a lawyer may tend to lessen public
confidence in the legal profession. Obedience to
law exemplifies respect for law. To lawyers especially, respect for the law should be more than a
platitude.
EC 1-6 An applicant for admission to the bar or
a lawyer may be unqualified, temporarily or permanently, for other than moral and educational
reasons, such as mental or emotional instability.
Lawyers should be diligent in taking steps to see
that during a period of disqualification such person is not granted a license or, if licensed, is not
permitted to practice. 9 In like manner, when the
disqualification has terminated, members of the
bar should assist such person in being licensed, or,
if licensed, in being restored to his full right to
practice.
DISCIPLINARY RULES
DR 1-101 Maintaining Integrity and Competence
of the Legal Profession.
( A) A lawyer is subject to discipline if he has
made a materially false statement in, or if
he has deliberately failed to disclose a material fact requested in connection with, his
application for admission to the bar.'°
g
Cf. ABA Canon 32.
9
"We decline, on the present record, to disbar Mr. Sherman or to reprimand him—not because we condone his actions, but because, as heretofore indicated, we are concerned with whether he is mentally responsible for what
he has done.
"The logic of the situation would seem to dictate the
conclusion that, if he was mentally responsible for the
conduct we have outlined, he should be disbarred; and,
if he was not mentally responsible, he should not be permitted to practice law.
"However, the flaw in the logic is that he may have
been mentally irresponsible [at the time of his offensive
conduct] . . ., and, yet, have sufficiently improved in
the almost two and one-half years intervening to be able
to capably and competently represent his clients. .
"We would make clear that we are satisfied that a case
has been made against Mr. Sherman, warranting a refusal
to permit him to further practice law in this state unless
he can establish his mental irresponsibility at the time of
the offenses charged. The burden of proof is upon him.
"If he establishes such mental irresponsibility, the burden is then upon him to establish his present capability
to practice law." In re Sherman, 58 Wash.2d 1, 6-7, 354
P.2d 888, 890 (1960), cert. denied. 371 U.S. 951, 9 L.Ed.2d
499, 83 S.Ct. 506 (1963).
10 "This Court has the inherent power to revoke a license
to practice law in this State, where such license was issued
by this Court, and its issuance was procured by the fraudulent concealment, or by the false and fraudulent representation by the applicant of a fact which was manifestly
material to the issuance of the license." North Carolina
ex rel. Attorney General v. Gorson, 209 N.C. 320, 326, 183
S.E. 392, 395 (1936), cert. denied, 298 U.S. 662, 80 L.Ed.
1387, 56 S.Ct. 752 (1936).
See also Application of Patterson, 318 P.2d 907, 913 (Or.
1957), cert. denied, 356 U.S. 947, 2 L.Ed.2d 822, 78 S.Ct.
795 (1958).
XX
( B) A lawyer shall not further the application for
admission to the bar of another person known
by him to be unqualified in respect to character, education, or other relevant attribute."
DR 1-102 Misconduct.
( A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through
actions of another.12
(3) Engage in illegal conduct involving
moral turpitude.13
11
See ABA Canon 29.
In ABA Opinion 95 (1933), which held that a municipal
attorney could not permit police officers to interview persons with claims against the municipality when the attorney knew the claimants to be represented by counsel,
the Committee on Professional Ethics said :
12
"The law officer is, of course, responsible for the acts
of those in his department who are under his supervision
and control." Opinion 85. In re Robinson, 136 N.Y.S. 548
(affirmed 209 N.Y. 354-1912) held that it was a matter of
disbarment for an attorney to adopt a general course of
approving the unethical conduct of employees of his client,
even though he did not actively participate therein,
". . 'The attorney should not advise or sanction
acts by his client which he himself should not do.' Opinion
75."
13 "The most obvious non-professional ground for disbarment is conviction for a felony. Most states make conviction for a felony grounds for automatic disbarment.
Some of these states, including New York, make disbarment mandatory upon conviction for any felony, while
others require disbarment only for those felonies which
involve moral turpitude. There are strong arguments that
some felonies, such as involuntary manslaughter, reflect
neither on an attorney's fitness, trustworthiness, nor competence and, therefore, should not be grounds for disbarment, but most states tend to disregard these arguments
and, following the common law rule, make disbarment
mandatory on conviction for any felony." Note, 43 Cornell
L.Q. 489, 490 (1958).
"Some states treat conviction for misdemeanors as
grounds for automatic disbarment . . .. However, the
vast majority, accepting the common law rule, require
that the misdemeanor involve moral turpitude. While the
definition of moral turpitude may prove difficult, it seems
only proper that those minor offenses which do not affect
the attorney's fitness to continue in the profession should
not be grounds for disbarment. A good example is an
assault and battery conviction which would not involve
moral turpitude unless done with malice and deliberation."
Id. at 491.
"The term 'moral turpitude' has been used in the law
for centuries. It has been the subject of many decisions
by the courts but has never been clearly defined because
of the nature of the term. Perhaps the best general definition of the term 'moral turpitude' is that it imports an
act of baseness, vileness or depravity in the duties which
one person owes to another or to society in general, which
is contrary to the usual, accepted and customary rule of
right and duty which a person should follow. 58 C.J.S.
at page 1201. Although offenses against revenue laws
have been held to be crimes of moral turpitude, it has also
been held that the attempt to evade the payment of taxes
due to the government or any subdivision thereof, while
wrong and unlawful, does not involve moral turpitude. 58
C.J.S. at page 1205." Comm. on Legal Ethics v. Scheer,
149 W.Va. 721, 726-27, 143 S.E.2d 141, 145 (1965).
CODE OF PROFESSIONAL RESPONSIBILITY
(4) Engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to
the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.14
legal problems, appreciate the importance of seeking assistance, 2 and are able to obtain the services
of acceptable legal counsel. 3 Hence, important
functions of the legal profession are to educate
laymen to recognize their legal problems, to facilitate the process of intelligent selection of lawyers,
and to assist in making legal services fully available.4
DR 1-103 Disclosure of Information to Authorities.
(A) A lawyer possessing unprivileged knowledge
of a violation of DR 1-102 shall report such
knowledge to a tribunal or other authority
empowered to investigate or act upon such
violation.15
(B) A lawyer possessing unprivileged knowledge
or evidence concerning another lawyer or a
judge shall reveal fully such knowledge or
evidence upon proper request of a tribunal or
other authority empowered to investigate or
act upon the conduct of lawyers or judges.16
Recognition of Legal Problems
EC 2-2 The legal profession should assist laymen
to recognize legal problems because such problems may not be self-revealing and often are not
means they have need for lawyers." Cheatham, The Lawyer's Role and Surroundings, 25 Rocky Mt.L.Rev. 405
(1953).
2
"Law is not self-applying; men must apply and utilize
it in concrete cases. But the ordinary man is incapable.
He cannot know the principles of law or the rules guiding
the machinery of law administration; he does not know
how to formulate his desires with precision and to put
them into writing; he is ineffective in the presentation of
his claims." Cheatham, The Lawyer's Role and Surroundings, 25 Rocky Mt.L.Rev. 405 (1953).
CANON 2
A Lawyer Should Assist the Legal Profession
in Fulfilling Its Duty to Make Legal
Counsel Available
ETHICAL CONSIDERATIONS
EC 2-1 The need of members of the public for
legal services
1
is met only if they recognize their
"The right and power to discipline an attorney, as one
of its officers, is inherent in the court. . . . This power is not limited to those instances of misconduct wherein
he has been employed, or has acted, in a professional capacity; but, on the contrary, this power may be exercised
where his misconduct outside the scope of his professional
relations shows him to be an unfit person to practice law."
In re Wilson, 391 S.W.2d 914, 917-18 (Mo. 1965).
14 "It is a fair characterization of the lawyer's responsibility in our society that he stands 'as a shield,' to quote
Devlin, J., in defense of right and to ward off wrong.
From a profession charged with these responsibilities there
must be exacted those qualities of truth-speaking, of a high
sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout
the centuries, been compendiously described as 'moral character' ". Schware v. Bd. of Bar Examiners, 353 U.S. 232,
247 L.Ed.2d 796, 806, 77 S.Ct. 752, 761 (1957) (Frankfurter,
J., concurring).
"Particularly applicable here is Rule 4.47 providing that
'A lawyer should always maintain his integrity; and shall
not willfully commit any act against the interest of the
Public; nor shall he violate his duty to the courts or his
clients; nor shall he, by any misconduct, commit any offense against the laws of Missouri or the United States
of America, which amounts to a crime involving acts done
by him contrary to justice, honesty, modesty or good
morals; nor shall he be guilty of any other misconduct
whereby, for the protection of the public and those
charged with the administration of justice, he should no
longer be entrusted with the duties and responsibilities
belonging to the office of an attorney.' " In re Wilson,
391 S.W.2d 914, 917 (Mo. 1965).
15
See ABA Canon 29; cf. ABA Canon 28.
16
Cf. ABA Canons 28 and 29.
1
"Men have need for more than a system of law; they
have need for a system of law which functions, and that
3
"This need [to provide legal services] was recognized
by . . . Mr. [Lewis F.] Powell [Jr., President, American Bar Association, 1963-64], who said: 'Looking at
contemporary America realistically, we must admit that
despite all our efforts to date (and these have not been
insignificant), far too many persons are not able to obtain
equal justice under law. This usually results because their
poverty or their ignorance has prevented them from obtaining legal counsel.' " Address by E. Clinton Bamberger,
Association of American Law Schools 1965 Annual Meeting,
Dec. 28, 1965, in Proceedings, Part II, 1965, 61, 63-64 (1965).
"A wide gap separates the need for legal services and
its satisfaction, as numerous studies reveal. Looked at
from the side of the layman, one reason for the gap is
poverty and the consequent inability to pay legal fees.
Another set of reasons is ignorance of the need for and
the value of legal services, and ignorance of where to
find a dependable lawyer. There is fear of the mysterious
processes and delays of the law, and there is fear of overreaching and overcharging by lawyers, a fear stimulated
by the occasional exposure of shysters." Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A.L.
Rev. 438 (1965).
4 "It is not only the right but the duty of the profession
as a whole to utilize such methods as may be developed to
bring the services of its members to those who need them.
so long as this can be done ethically and with dignity."
ABA Opinion 320 (1968).
"[T]here is a responsibility on the bar to make legal
services available to those who need them. The maxim,
'privilege brings responsibilities,' can be expanded to read,
exclusive privilege to render public service brings responsibility to assure that the service is available to those in
need of it." Cheatham, Availability of Legal Services:
The Responsibility of the Individual Lawyer and of the
Organized Bar, 12 U.C.L.A.L.Rev. 438, 443 (1965).
"The obligation to provide legal services for those actually caught up in litigation carries with it the obligation
to make preventive legal advice accessible to all. It is
among those unaccustomed to business affairs and fearful
of the ways of the law that such advice is often most needed. If it is not received in time, the most valiant and
skillful representation in court may come too late." Professional Responsibility: Report of the Joint Conference,
44 A.B.A.J. 1159, 1216 (1958).
XXI
CODE OF PROFESSIONAL RESPONSIBILITY
timely noticed. 5 Therefore, lawyers acting under
proper auspices should encourage and participate
in educational and public relations programs concerning our legal system with particular reference
to legal problems that frequently arise. Such educational programs should be motivated by a desire
to benefit the public rather than to obtain publicity
or employment for particular lawyers.° Examples
of permissible activities include preparation of
institutional advertisements 7 and professional articles for lay publications 8 and participation in
5
"Over a period of years institutional advertising of programs for the benefit of the public have been approved by
this and other Ethics Committees as well as by the courts.
"To the same effect are opinions of this Committee :
Opinion 179 dealing with radio programs presenting a sit
uation in which legal advice is suggested in connection
with a drafting of a will; Opinions 205 and 227 permitting
institutional advertising of lawyer referral plans; Opinion
191 holding that advertising by lawyer members of a nonbar associated sponsored plan violated Canon 27. The Illinois Ethics Committee, in its Opinion 201, sustained bar
association institutional advertising of a check-up plan
"This Committee has passed squarely on the question of
the propriety of institutional advertising in connection
with a legal check-up plan. Informal Decision C-171 quotes
with express approval the Michigan Ethics Committee as
follows :
As a public service, the bar has in the past addressed
the public as to the importance of making wills, consulting counsel in connection with real estate transactions,
etc. In the same way, the bar, as such, may recommend
this program, provided always that it does it in such a
way that there is not suggestion of solicitation on behalf
of any individual lawyer."
ABA Opinion 307 (1962).
6
"We recognize a distinction between teaching the lay
public the importance of securing legal services preventive
in character and the solicitation of professional employment
by or for a particular lawyer. The former tends to promote the public interest and enhance the public estimation
of the profession. The latter is calculated to injure the
public and degrade the profession.
"Advertising which is calculated to teach the layman the
benefits and advantages of preventive legal services will
benefit the lay public and enable the lawyer to render a
more desirable and beneficial professional service. . . ."
ABA Opinion 179 (1938).
7
"[A bar association] may engage in a dignified institutional educational campaign so long as it does not involve
the identification of a particular lawyer with the check-up
program. Such educational material may point out the
value of the annual check-up and may be printed in newspapers, magazines, pamphlets, and brochures, or produced
by means of films, radio, television or other media. The
printed materials may be distributed in a dignified way
through the offices of persons having close dealings with
lawyers as, for example, banks, real estate agents, insurance agents and others. They may be available in lawyers' offices. The bar association may prepare and distribute to lawyers materials and forms for use in the
annual legal check-up." ABA Opinion 307 (1962).
8
"A lawyer may with propriety write articles for publications in which he gives information upon the law
.." ABA Canon 40.
"The newsletters, by means of which respondents are
alleged to have advertised their wares, were sent to the
officers of union clients represented by their firm.
seminars, lectures, and civic programs. But a lawyer who participates in such activities should
shun personal publicity.9
EC 2-3 Whether a lawyer acts properly in volunteering advice to a layman to seek legal services
depends upon the circumstances. 10 The giving of
advice that one should take legal action could well
be in fulfillment of the duty of the legal profession
to assist laymen in recognizing legal problems.11
The advice is proper only if motivated by a desire
to protect one who does not recognize that he may
have legal problems or who is ignorant of his legal
rights or obligations. Hence, the advice is improper if motivated by a desire to obtain personal
benefit, 12 secure personal publicity, or cause litigation to be brought merely to harass or injure
another. Obviously, a lawyer should not contact
They contain no reference to any cases handled by the
respondents. Their contents are confined to rulings of
boards, commissions and courts on problems of interest
to labor union, together with proposed and completed legislation important to the Brotherhood, and other items
which might affect unions and their members. The respondents cite Opinion 213 of the Committee on Professional Ethics and Grievances as permitting such practice. After
studying this opinion, we agree that sending of newsletters
of the above type to regular clients does not offend Canon
27." In re Ratner, 194 Kan. 362, 371, 399 P.2d 865, 872-73
(1965).
Cf. ABA Opinion 92 (1933).
9
Cf. ABA Opinions 307 (1962) and 179 (1938).
"There is no ethical or other valid reason why an attorney may not write articles on legal subjects for magazines
and newspapers. The fact that the publication is a trade
journal or magazine, makes no difference as to the ethical
question involved. On the other hand, it would be unethical and contrary to the precepts of the Canons for the
attorney to allow his name to be carried in the magazine
or other publication . . . as a free legal adviser for
the subscribers to the publication. Such would be contrary
to Canons 27 and 35 and Opinions heretofore announced
by the Committee on Professional Ethics and Grievances.
(See Opinions 31, 41, 42, and 56)." ABA Opinion 162 (1936).
10 See ABA Canon 28.
11 This question can assume constitutional dimensions :
"We meet at the outset the contention that 'solicitation'
is wholly outside the area of freedoms protected by the
First Amendment. To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by mere labels. The second
is that abstract discussion is not the only species of communication which the Constitution protects; the First
Amendment also protects vigorous advocacy, certainly of
lawful ends, against governmental intrusion. .
"However valid may be Virginia's interest in regulating
the traditionally illegal practice of barratry, maintenance
and champerty, that interest does not justify the prohibition of the NAACP activities discrosed by this record. Malicious intent was of the essence of the common-law offenses of fomenting or stirring up litigation. And whatever
may be or may have been true of suits against governments
in other countries, the exercise in our own, as in this case
of First Amendment rights to enforce Constitutional rights
through litigation, as a matter of law, cannot be deemed
malicious." NAACP v. Button, 371 U.S. 415, 429, 439-40,
9 L.Ed.2d 405, 415-16, 422, 83 S.Ct. 328, 336, 341 (1963).
XXII
12 See ABA Canon 27.
CODE OF PROFESSIONAL RESPONSIBILITY
Selection of a Lawyer: Generally
a non-client, directly or indirectly, for the purpose
of being retained to represent him for compensation.
EC 2-4 Since motivation is subjective and often
difficult to judge, the motives of a lawyer who volunteers advice likely to produce legal controversy
may well be suspect if he receives professional employment or other benefits as a result. 13 A lawyer
who volunteers advice that one should obtain the
services of a lawyer generally should not himself
accept employment, compensation, or other benefit
in connection with that matter. However, it is
not improper for a lawyer to volunteer such advice and render resulting legal services to close
friends, relatives, former clients (in regard to matters germane to former employment), and regular
clients.14
EC 2-5 A lawyer who writes or speaks for the
purpose of educating members of the public to
recognize their legal problems should carefully
refrain from giving or appearing to give a general
solution applicable to all apparently similar individual problems, 15 since slight changes in fact
situations may require a material variance in the
applicable advice; otherwise, the public may be
misled and misadvised. Talks and writings by
lawyers for laymen should caution them not to
attempt to solve individual problems upon the basis
of the information contained therein.10
13
"The Canons of Professional Ethics of the American
Bar Association and the decisions of the courts quite generally prohibit the direct solicitation of business for gain
by an attorney either through advertisement or personal
communication; and also condemn the procuring of business by indirection through touters of any kind. It is
disreputable for an attorney to breed litigation by seeking
out those who have claims for personal injuries or other
grounds of action in order to secure them as clients, or
to employ agents or runners, or to reward those who bring
or influence the bringing of business to his office. . . .
Moreover, it tends quite easily to the institution of baseless litigation and the manufacture of perjured testimony.
From early times, this danger has been recognized in the
law by the condemnation of the crime of common barratry,
or the stirring up of suits or quarrels between individuals
at law or otherwise." In re Ades, 6 F.Supp. 467, 474-75
( D. Mary. 1934).
"Rule 2.
"§a. . . .
"[A] member of the State Bar shall not solicit professional employment by
"(1) Volunteering counsel or advice except where ties
of blood relationship or trust make it appropriate." Cal.
Business and Professions Code § 6076 (West 1962).
14
15
"Rule 18 . . . A member of the State Bar shall not
advise inquirers or render opinions to them through or in
connection with a newspaper, radio or other publicity
medium of any kind in respect to their specific legal problems, whether or not such attorney shall be compensated
for his services." Cal.Business and Professions Code § 6076
( West 1962).
EC 2-6 Formerly a potential client usually knew
the reputations of local lawyers for competency
and integrity and therefore could select a practitioner in whom he had confidence. This traditional selection process worked well because it was
initiated by the client and the choice was an informed one.
EC 2-7 Changed conditions, however, have seriously restricted the effectiveness of the traditional
selection process. Often the reputations of lawyers are not sufficiently known to enable laymen
to make intelligent choices. 17 The law has become
increasingly complex and specialized. Few lawyers are willing and competent to deal with every
kind of legal matter, and many laymen have difficulty in determining the competence of lawyers
to render different types of legal services. The
selection of legal counsel is particularly difficult
for transients, persons moving into new areas,
persons of limited education or means, and others
who have little or no contact with lawyers.18
EC 2-8 Selection of a lawyer by a layman often
is the result of the advice and recommendation
of third parties—relatives, friends, acquaintances,
business associates, or other lawyers. A layman
is best served if the recommendation is disinterested and informed. In order that the recommendation be disinterested, a lawyer should not seek to
influence another to recommend his employment.10
A lawyer should not compensate another person
for recommending him, for influencing a prospective client to employ him, or to encourage future
recommendations.20
Selection of a Lawyer: Professional Notices and
Listings
EC 2-9 The traditional ban against advertising by
lawyers, which is subject to certain limited exceptions, is rooted in the public interest. Competitive
advertising would encourage extravagant, artful,
self-laudatory 21 brashness in seeking business and
member as a basis for handling his individual affairs, but
that in every case he should consult his counsel. In the
publication of the opinion the association should make a
similar statement." ABA Opinion 273 (1946).
17
"A group of recent interrelated changes bears directly
on the availability of legal services. . . . [One] change
is the constantly accelerating urbanization of the country
and the decline of personal and neighborhood knowledge of
whom to retain as a professional man." Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A.L.
Rev. 438, 440 (1965).
18 Cf. Cheatham, A Lawyer When Needed: Legal Services
for the Middle Classes, 63 Colum.L.Rev. 973, 974 (1963).
19
See ABA Canon 27.
See ABA Canon 28.
'Self-laudation' is a very flexible concept; Canon 27
does not define it, so what course of conduct would be said
to constitute it under a given state of facts would no doubt
vary as the opinions of men vary. As a famous English
judge said, it would vary as the length of the chancellor's
foot. It must be in words and tone that will 'offend the
traditions and lower the tone of our profession.' When it
20
21 "
16 "In any case where a member might well apply the
advice given in the opinion to his individual affairs, the
lawyer rendering the opinion [concerning problems common to members of an association and distributed to the
members through a periodic bulletin] should specifically
state that this opinion should not be relied on by any
XXIII
CODE OF PROFESSIONAL RESPONSIBILITY
thus could mislead the layman. 22 Furthermore,
it would inevitably produce unrealistic expectations in particular cases and bring about distrust
of the law and lawyers. 23 Thus, public confidence
in our legal system would be impaired by such
advertisements of professional services. The attorney-client relationship is personal and unique
and should not be established as the result of
pressures and deceptions. 24 History has demonstrated that public confidence in the legal system is
best preserved by strict, self-imposed controls over,
rather than by unlimited, advertising.
EC 2-10 Methods of advertising that are subject
to the objections stated above 25 should be and are
prohibited. 26 However, the Disciplinary Rules
recognize the value of giving assistance in the
selection process through forms of advertising that
furnish identification of a lawyer while avoiding
such objections. For example, a lawyer may be
identified in the classified section of the telephone
directory, 27 in the office building directory, and on
his letterhead and professional card. 28 But at all
times the permitted notices should be dignified and
accurate.
does this, it is 'reprehensible.' This seems to be the test
by which 'self-laudation' is measured." State v. Nichols,
151 So.2d 257, 259 (Fla. 1963).
EC 2-11 The name under which a lawyer conducts his practice may be a factor in the selection
process. 29 The use of a trade name or an assumed
name could mislead laymen concerning the identity, responsibility, and status of those practicing
thereunder. 30 Accordingly, a lawyer in private
practice should practice only under his own name,
the name of a lawyer employing him, a partnership name composed of the name of one or more
of the lawyers practicing in a partnership, or, if
permitted by law, in the name of a professional
legal corporation, which should be clearly designated as such. For many years some law firms have
used a firm name retaining one or more names
of deceased or retired partners and such practice
is not improper if the firm is a bona fide successor
of a firm in which the deceased or retired person
was a member, if the use of the name is authorized
by law or by contract, and if the public is not misled thereby. 31 However, the name of a partner
22 "Were it not for the prohibitions of . . . [Canon
27] lawyers could, and no doubt would be forced to, engage competitively in advertising of all kinds in which
each would seek to explain to the public why he could
serve better and accomplish more than his brothers at the
Bar.
"Susceptible as we are to advertising the public would
then be encouraged to choose an attorney on the basis of
which had the better, more attractive advertising program
rather than on his reputation for professional ability.
"This would certainly maim, if not destroy, the dignity
and professional status of the Bar of this State." State v.
Nichols, 151 So.2d 257, 268 (Fla. 1963) (O'Connell, J., concurring in part and dissenting in part).
23
Cf. ABA Canon 8.
"The prohibition of advertising by lawyers deserves
some examination. All agree that advertising by an individual lawyer, if permitted, will detract from the dignity
of the profession, but the matter goes deeper than this.
Perhaps the most understandable and acceptable additional
reasons we have found are stated by one commentator as
follows :
" '1.
That advertisements, unless kept within narrow
limits, like any other form of solicitation, tend to
stir up litigation, and such tendency is against the
public interest.
" '2.
That if there were no restrictions on advertisements, the least capable and least honorable lawyers
would be apt to publish the most extravagant and
alluring material about themselves, and that the
harm which would result would, in large measure,
fall on the ignorant and on those least able to afford it.
" '3.
That the temptation would be strong to hold out
as inducements for employment, assurances of success or of satisfaction to the client, which assurances could not be realized, and that the giving of
such assurances would materially increase the
temptation to use ill means to secure the end desired by the client.
" 'In other words, the reasons for the rule, and for the
conclusion that it is desirable to prohibit advertising
entirely, or to limit it within such narrow bounds
that it will not admit of abuse, are based on the
possibility and probability that this means of publicity,
if permitted, will be abused.' Harrison Hewitt in a
comment at 15 A.B.A.J. 116 (1929) reproduced in
Cheatham, Cases and Materials on the Legal Profession (2d Ed., 1955), p. 525.
"Of course, competition is at the root of the abuses in
advertising. If the individual lawyer were permitted to
compete with his fellows in publicity through advertising,
we have no doubt that Mr. Hewitt's three points, quoted
above, would accurately forecast the result." Jacksonville
Bar Ass'n v. Wilson, 102 So.2d 292, 294-95 (Fla. 1958).
24
25
See ABA Canon 27.
26
Cf. ABA Opinions 309 (1963) and 284 (1951).
27
Cf. ABA Opinions 313 (1964) and 284 (1951).
28
See ABA Canon 27.
Cf. ABA Opinion 303 (1961).
See ABA Canon 33.
31
Id.
"The continued use of a firm name by one or more surviving partners after the death of a member of the firm
whose name is in the firm title is expressly permitted by
the Canons of Ethics. The reason for this is that all of
the partners have by their joint and several efforts over a
period of years contributed to the good will attached to
the firm name. In the case of a firm having widespread
connections, this good will is disturbed by a change in
firm name every time a name partner dies, and that reflects a loss in some degree of the good will to the building
up of which the surviving partners have contributed their
time, skill and labor through a period of years. To avoid
this loss the firm name is continued, and to meet the requirements of the Canon the individuals constituting the
firm from time to time are listed." ABA Opinion 267
(1945).
"Accepted local custom in New York recognizes that the
name of a law firm does not necessarily identify the individual members of the firm, and hence the continued use
of a firm name after the death of one or more partners is
not a deception and is permissible. . . . The continued
use of a deceased partner's name in the firm title is not
affected by the fact that another partner withdraws from
the firm and his name is dropped, or the name of the new
partner is added to the firm name." Opinion No. 45, Committee on Professional Ethics, New York State Bar Assn,
39 N. Y. St. B. J. 455 (1967) .
Cf. ABA Opinion 258 (1943).
XXIV
29
30
CODE OF PROFESSIONAL RESPONSIBILITY
who withdraws from a firm but continues to practice law should be omitted from the firm name
in order to avoid misleading the public.
EC 2-12 A lawyer occupy:ng a judicial, legislative, or public executive or administrative position
who has the right to practice law concurrently may
allow his name to remain in the name of the firm
if he actively continues to practice law as a member thereof. Otherwise, his name should be removed from the firm name, 32 and he should not
be identified as a past or present member of the
firm; and he should not hold himself out as being
a practicing lawyer.
EC 2-13 In order to avoid the possibility of misleading persons with whom he deals, a lawyer
should be scrupulous in the representation of his
professional status. 33 He should not hold himself
out as being a partner or associate of a law firm
if he is not one in fact, 34 and thus should not hold
himself out as a partner or associate if he only
shares offices with another lawyer.35
EC 2-14 In some instances a lawyer confines his
practice to a particular field of law. 36 In the absence of state controls to insure the existence of
special competence, a lawyer should not be permitted to hold himself out as a specialist 37 or as
having special training or ability, other than in the
historically excepted fields of admiralty, trademark, and patent law.38
32
Cf. ABA Canon 33 and ABA Opinion 315 (1965).
33
Cf. ABA Opinions 283 (1950) and 81 (1932).
34
See ABA Opinion 316 (1967).
35
"The word 'associates' has a variety of meanings.
Principally through custom the word when used on the
letterheads of law firms has come to be regarded as describing those who are employees of the firm. Because
the word has acquired this special significance in connection with the practice of the law the use of the word to
describe lawyer relationships other than employer-employee
is likely to be misleading." In re Sussman and Tanner,
241 Ore. 246, 248, 405 P.2d 355, 356 (1965).
According to ABA Opinion 310 (1963), use of the term
"associates" would be misleading in two situations ; (1)
where two lawyers are partners and they share both responsibility and liability for the partnership ; and (2)
where two lawyers practice separately, sharing no responsibility or liability, and only share a suite of offices and some
costs.
"For a long time, many lawyers have, of necessity,
li mited their practice to certain branches of law. The
increasing complexity of the law and the demand of the
public for more expertness on the part of the lawyer has,
in the past few years—particularly in the last ten years—
brought about specialization on an increasing scale." Report of the Special Committee on Specialization and
Specialized Legal Services, 79 A.B.A.Rep. 582, 584 (1954).
36
EC 2-15 The legal profession has developed lawyer referral systems designed to aid individuals
who are able to pay fees but need assistance in
locating lawyers competent to handle their particular problems. Use of a lawyer referral system
enables a layman to avoid an uninformed selection
of a lawyer because such a system makes possible
the employment of competent lawyers who have
indicated an interest in the subject matter involved. Lawyers should support the principle
of lawyer referral systems and should encourage
the evolution of other ethical plans which aid in
the selection of qualified counsel.
Financial Ability to Employ Counsel: Generally
EC 2-16 The legal profession cannot remain a
viable force in fulfilling its role in our society unless its members receive adequate compensation
for services rendered, and reasonable fees 39
should be charged in appropriate cases to clients
able to pay them. Nevertheless, persons unable
to pay all or a portion of a reasonable fee should
be able to obtain necessary legal services, 40 and
lawyers should support and participate in ethical
activities designed to achieve that objective.41
Financial Ability to Employ Counsel: Persons
Able to Pay Reasonable Fees
EC 2-17 The determination of a proper fee requires consideration of the interests of both client
and lawyers. 42 A lawyer should not charge more
than a reasonable fee, 43 for excessive cost of legal
service would deter laymen from utilizing the legal
system in protection of their rights. Furthermore,
an excessive charge abuses the professional relationship between lawyer and client. On the other
hand, adequate compensation is necessary in order
to enable the lawyer to serve his client effectively
and to preserve the integrity and independence of
the profession.44
EC 2-18 The determination of the reasonableness
of a fee requires consideration of all relevant circumstances, 45 including those stated in the Disciplinary Rules. The fees of a lawyer will vary according to many factors, including the time required, his experience, ability, and reputation, the
39
See ABA Canon 12.
40
Cf. ABA Canon 12.
"If there is any fundamental proposition of government on which all would agree, it is that one of the highest
goals of society must be to achieve and maintain equality
before the law. Yet this ideal remains an empty form of
words unless the legal profession is ready to provide adequate representation for those unable to pay the usual
fees." Professional Representation: Report of the Joint
Conference, 44 A.B.A.J. 1159, 1216 (1958).
41
42
See ABA Canon 12.
43
Cf. ABA Canon 12.
37
"In varying degrees specialization has become the
modus operandi throughout the legal profession. . . .
American society is specialization conscious. The present
Canons, however, do not allow lawyers to make known to
the lay public the fact that they engage in the practice
of a specialty. . . ." Tucker, The Large Law Firm:
Considerations Concerning the Modernization of the Canons
of Professional Ethics, 1965 Wis.L.Rev. 344, 348. 49 (1965).
38
"When members of the Bar are induced to render legal
services for inadequate compensation, as a consequence
the quality of the service rendered may be lowered, the
welfare of the profession injured and the administration
of justice made less efficient." ABA Opinion 302 (1961).
Cf. ABA Opinion 307 (1962).
See ABA Canon 27.
44
45
XXV
See ABA Canon 12.
CODE OF PROFESSIONAL RESPONSIBILITY
nature of the employment, the responsibility involved, and the results obtained. Suggested fee
schedules and economic reports of state and local
bar associations provide some guidance on the subject of reasonable fees. 46 It is a commendable and
long-standing tradition of the bar that special consideration is given in the fixing of any fee for
services rendered a brother lawyer or a member of
his immediate family.
EC 2-19 As soon as feasible after a lawyer has
been employed, it is desirable that he reach a clear
agreement with his client as to the basis of the
fee charges to be made. Such a course will not
only prevent later misunderstanding but will also
work for good relations between the lawyer and
the client. It is usually beneficial to reduce to
writing the understanding of the parties regarding
the fee, particularly when it is contingent. A lawyer should be mindful that many persons who desire to employ him may have had little or no experience with fee charges of lawyers, and for this
reason he should explain fully to such persons the
reasons for the particular fee arrangement he
proposes.
EC 2-20 Contingent fee arrangements 47 in civil
cases have long been commonly accepted in the
United States in proceedings to enforce claims.
The historical bases of their acceptance are that
(1) they often, and in a variety of circumstances,
provide the only practical means by which one
having a claim against another can economically
afford, finance, and obtain the services of a competent lawyer to prosecute his claim, and (2) a
successful prosecution of the claim produces a res
out of which the fee can be paid. 48 Although a
lawyer generally should decline to accept employment on a contingent fee basis by one who is able
to pay a reasonable fixed fee, it is not necessarily
improper for a lawyer, where justified by the particular circumstances of a case, to enter into a contingent fee contract in a civil case with any client
who, after being fully informed of all relevant factors, desires that arrangement. Because of the
48
Id.
"[U]nder . . . [Canon 12], this Committee has consistently held that minimum fee schedules can only be
suggested or recommended and cannot be made obligatory
.." ABA Opinion 302 (1961).
"[A] compulsory minimum fee schedule is contrary to
Canon 12 and repeated pronouncements of this committee."
ABA Opinion 190 (1939).
Cf. ABA Opinions 171 (1937) and 28 (1930).
47 See ABA Canon 13; see also Mackinnon, Contingent •
Fees for Legal Services (1964) (A report of the American
Bar Foundation).
"A contract for a reasonable contingent fee where sanctioned by law is permitted by Canon 13, but the client
must remain responsible to the lawyer for expenses advanced by the latter. `There is to be no barter of the
privilege of prosecuting a cause for gain in exchange for
the promise of the attorney to prosecute at his own expense.' (Cardozo, C. J. in Matter of Gilman, 251 N.Y. 265,
270-271.)" ABA Opinion 246 (1942).
48
See Comment, Providing Legal Services for the Middle
Class in Civil Matters: The Problem, the Duty and a Solution, 26 U.Pitt.L.Rev. 811, 829 (1965).
human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relation cases are rarely justified. In administrative agency proceedings contingent fee contracts should be governed by the
same considerations as in other civil cases. Public
policy properly condemns contingent fee arrangements in criminal cases, largely on the ground that
legal services in criminal cases do not produce a
res with which to pay the fee.
EC 2-21 A lawyer should not accept compensation or any thing of value incident to his employment or services from one other than his client
without the knowledge and consent of his client
after full disclosure.49
EC 2-22 Without the consent of his client, a lawyer should not associate in a particular matter another lawyer outside his firm. A fee may properly be divided between lawyers 50 properly associated if the division is in proportion to the services performed and the responsibility assumed
by each lawyer 51 and if the total fee is reasonable.
EC 2-23 A lawyer should be zealous in his efforts to avoid controversies over fees with clients 52
and should attempt to resolve amicably any differences on the subject. 53 He should not sue a client
for a fee unless necessary to prevent fraud or
gross imposition by the client.54
See ABA Canon 38.
"Of course, as . . . [Informal Opinion 679] points
out, there must be full disclosure of the arrangement [that
an entity other than the client pays the attorney's fee]
by the attorney to the client . . ." ABA Opinion 320
(1968).
49
50 "Only lawyers may share in . . . a division of
fees, but . . . it is not necessary that both lawyers be
admitted to practice in the same state, so long as the division was based on the division of services or responsibility." ABA Opinion 316 (1967).
See ABA Canon 34.
"We adhere to our previous rulings that where a lawyer
merely brings about the employment of another lawyer
but renders no service and assumes no responsibility in the
matter, a division of the latter's fee is improper. ( Opinions
18 and 153).
"It is assumed that the bar, generally, understands what
acts or conduct of a lawyer may constitute 'services' to a
client within the intendment of Canon 12. Such acts or
conduct invariably, if not always, involve 'responsibility'
on the part of the lawyer, whether the word `responsibility' be construed to denote the possible resultant legal or
moral liability on the part of the lawyer to the client or
to others, or the onus of deciding what should or should
not be done in behalf of the client. The word 'services'
in Canon 12 must be construed in this broad sense and may
apply to the selection and retainer of associate counsel as
well as to other acts or conduct in the client's behalf."
ABA Opinion 204 (1940).
51
52
See ABA Canon 14.
53
Cf. ABA Opinion 320 (1968).
See ABA Canon 14.
"Ours is a learned profession, not a mere money-getting
trade. . . . Suits to collect fees should be avoided.
Only where the circumstances imperatively require, should
resort be had to a suit to compel payment. And where a
lawyer does resort to a suit to enforce payment of fees
XXVI
54
CODE OF PROFESSIONAL RESPONSIBILITY
Financial Ability to Employ Counsel: Persons
Unable to Pay Reasonable Fees
EC 2-24 A layman whose financial ability is not
sufficient to permit payment of any fee cannot
obtain legal services, other than in cases where
a contingent fee is appropriate, unless the services
are provided for him. Even a person of moderate
means may be unable to pay a reasonable fee
which is large because of the complexity, novelty,
or difficulty of the problem or similar factors.55
EC 2-25 Historically, the need for legal services
of those unable to pay reasonable fees has been
met in part by lawyers who donated their services
or accepted court appointments on behalf of such
individuals. The basic responsibility for providing
legal services for those unable to pay ultimately
rests upon the individual lawyer, and personal
involvement in the problems of the disadvantaged
can be one of the most rewarding experiences in
the life of a lawyer. Every lawyer, regardless of
professional prominence or professional workload,
should find time to participate in serving the disadvantaged. The rendition of free legal services
to those unable to pay reasonable fees continues
to be an obligation of each lawyer, but the efforts
of individual lawyers are often not enough to meet
the need. 56 Thus it has been necessary for the
which involves a disclosure, he should carefully avoid any
disclosure not clearly necessary to obtaining or defending
his rights." ABA Opinion 250 (1943).
But cf. ABA Opinion 320 (1968).
profession to institute additional programs to provide legal services. 57 Accordingly, legal aid offices, 58 lawyer referral services, 59 and other related programs have been developed, and others will
be developed, by the profession. 60 Every lawyer
should support all proper efforts to meet this need
for legal services.61
through primary or exclusive reliance on the uncompensated services of counsel will prove unsuccessful and inadequate. . . . A system of adequate representation, therefore, should be structured and financed in a manner reflecting its public importance. . . . We believe that
fees for private appointed counsel should be set by the
court within maximum limits established by the statute."
Report of the Att'y Gen's Comm. on Poverty and the Administration of Criminal Justice 41-43 (1963).
57
"At present this representation [of those unable to pay
usual fees] is being supplied in some measure through the
spontaneous generosity of individual lawyers, through legal
aid societies, and—increasingly--through the organized efforts of the Bar. If those who stand in need of this service know of its availability and their need is in fact adequately met, the precise mechanism by which this service
is provided becomes of secondary importance. It is of
great importance, however, that both the impulse to render this service, and the plan for making that impulse
effective, should arise within the legal profession itself."
Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
58
"Free legal clinics carried on by the organized bar are
not ethically objectionable. On the contrary, they serve a
very worthwhile purpose and should be encouraged." ABA
Opinion 191 (1939).
55
"As a society increases in size, sophistication and technology, the body of laws which is required to control that
society also increases in size, scope and complexity. With
this growth, the law directly affects more and more facets
of individual behavior, creating an expanding need for legal
services on the part of the individual members of the
society. . . . As legal guidance in social and commercial behavior increasingly becomes necessary, there will
come a concurrent demand from the layman that such
guidance be made available to him. This demand will not
come from those who are able to employ the best of legal
talent, nor from those who can obtain legal assistance at
little or no cost. It will come from the large 'forgotten
middle income class,' who can neither afford to pay proportionately large fees nor qualify for ultra-low-cost services. The legal profession must recognize this inevitable
demand and consider methods whereby it can be satisfied.
If the profession fails to provide such methods, the laity
will." Comment, Providing Legal Services for the Middle
Class in Civil Matters: The Problem, the Duty and a
Solution, 26 U.Pitt.L.Rev. 811, 811-12 (1965).
"The issue is not whether we shall do something or do
nothing. The demand for ordinary everyday legal justice
is so great and the moral nature of the demand is so strong
that the issue has become whether we devise, maintain,
and support suitable agencies able to satisfy the demand
or, by our own default, force the government to take over
the job, supplant us, and ultimately dominate us." Smith,
Legal Service Offices for Persons of Moderate Means, 1949
Wis.L.Rev. 416, 418 (1949).
60
"Whereas the American Bar Association believes that
it is a fundamental duty of the bar to see to it that all
persons requiring legal advice be able to attain it, irrespective of their economic status . .
"Resolved, that the Association approves and sponsors
the setting up by state and local bar associations of lawyer
referral plans and low-cost legal service methods for the
purpose of dealing with cases of persons who might not
otherwise have the benefit of legal advice . . .." Proceedings of the House of Delegates of the American Bar
Association, Oct. 30, 1946, 71 A.B.A.Rep. 103, 109-10 (1946).
56 "Lawyers have peculiar responsibilities for the just administration of the law, and these responsibilities include
providing advice and representation for needy persons. To
a degree not always appreciated by the public at large, the
bar has performed these obligations with zeal and devotion.
The Committee is persuaded, however, that a system of
justice that attempts, in mid-twentieth century America,
to meet the needs of the financially incapacitated accused
61 "The defense of indigent citizens, without compensation, is carried on throughout the country by lawyers representing legal aid societies, not only with the approval,
but with the commendation of those acquainted with the
work. Not infrequently services are rendered out of
sympathy or for other philanthropic reasons, by individual
lawyers who do not represent legal aid societies. There
is nothing whatever in the Canons to prevent a lawyer
59 "We are of the opinion that the [lawyer referral]
plan here presented does not fall within the inhibition of
the Canon. No solicitation for a particular lawyer is involved. The dominant purpose of the plan is to provide as
an obligation of the profession competent legal services to
persons in low-income groups at fees within their ability
to pay. The plan is to be supervised and directed by the
local Bar Association. There is to be no advertisement
of the names of the lawyers constituting the panel. The
general method and purpose of the plan only is to be advertised. Persons seeking the legal services will be directed to members of the panel by the Bar Association. Aside
from the filing of the panel with the Bar Association,
there is to be no advertisement of the names of the lawyers
constituting the panel. If these limitations are observed,
we think there is no solicitation of business by or for particular lawyers and no violation of the inhibition of Canon
27." ABA Opinion 205 (1940).
XXVII
CODE OF PROFESSIONAL RESPONSIBILITY
Acceptance and Retention of Employment
EC 2-26 A lawyer is under no obligation to act as
adviser or advocate for every person who may
wish to become his client; but in furtherance of
the objective of the bar to make legal services fully
available, a lawyer should not lightly decline proffered employment. The fulfillment of this objective requires acceptance by a lawyer of his share
of tendered employment which may be unattractive
both to him and the bar generally.62
EC 2-27 History is replete with instances of distinguished and sacrificial services by lawyers who
have represented unpopular clients and causes.
Regardless of his personal feelings, a lawyer
should not decline representation because a client
or a cause is unpopular or community reaction is
adverse.63
EC 2-28 The personal preference of a lawyer to
avoid adversary alignment against judges, other
lawyers, 64 public officials, or influential members
of the community does not justify his rejection
of tendered employment.
EC 2-29 When a lawyer is appointed by a court
or requested by a bar association to undertake
representation of a person unable to obtain counsel, whether for financial or other reasons, he
should not seek to be excused from undertaking
from performing such an act, nor should there be." ABA
Opinion 148 (1935).
62
But cf. ABA Canon 31.
the representation except for compelling reasons.65
Compelling reasons do not include such factors as
the repugnance of the subject matter of the proceeding, the identity 66 or position of a person involved in the case, the belief of the lawyer that
the defendant in a criminal proceeding is guilty,67
or the belief of the lawyer regarding the merits
of the civil case.68
EC 2-30 Employment should not be accepted by
a lawyer when he is unable to render competent
service 69 or when he knows or it is obvious that
the person seeking to employ him desires to institute or maintain an action merely for the purpose of harassing or maliciously injuring another.70
Likewise, a lawyer should decline employment if
the intensity of his personal feeling, as distinguished from a community attitude, may impair
his effective representation of a prospective client.
If a lawyer knows a client has previously obtained
counsel, he should not accept employment in the
matter unless the other counsel approves 71 or
withdraws, or the client terminates the prior employment.72
EC 2-31 Full availability of legal counsel requires
both that persons be able to obtain counsel and that
lawyers who undertake representation complete
the work involved. Trial counsel for a convicted
defendant should continue to represent his client
by advising whether to take an appeal and, if the
appeal is prosecuted, by representing him through
the appeal unless new counsel is substituted or
withdrawal is permitted by the appropriate court.
63
"One of the highest services the lawyer can render to
society is to appear in court on behalf of clients whose
causes are in disfavor with the general public." Professional Responsibility: Report of the Joint Conference, 44 A.B.
A.J. 1159, 1216 (1958).
One author proposes the following proposition to be included in "A Proper Oath for Advocates" : "I recognize
that it is sometimes difficult for clients with unpopular
causes to obtain proper legal representation. I will do all
that I can to assure that the client with the unpopular
p
cause is properly represen t ed, and that the law y er re resenting such a client receives credit from and support of
the bar for handling such a matter." Thode, The Ethical
Standard for the Advocate, 39 Texas L. Rev. 575, 592 (1961).
"§ 6068. . . . It is the duty of an attorney :
"(h) Never to reject, for any consideration personal to
himself, the cause of the defenseless or the oppressed."
Cal.Business and Professions Code § 6068 (West 1962).
Virtually the same language is found in the Oregon statutes at Ore.Rev.Stats. Ch. 9 § 9.460(8).
See Rostow, The Lawyer and His Client, 48 A.B.A.J.
25 and 146 (1962).
6
4 See ABA Canons 7 and 29.
"We are of the opinion that it is not professionally improper for a lawyer to accept employment to compel another lawyer to honor the just claim of a layman. On the
contrary, it is highly proper that he do so. Unfortunately,
there appears to be a widespread feeling among laymen
that it is difficult, If not impossible, to obtain justice when
they have claims against members of the Bar because other
lawyers will not accept employment to proceed against
them. The honor of the profession, whose members proudly style themselves officers of the court, must surely be
sullied if its members bind themselves by custom to refrain
from enforcing just claims of laymen against lawyers."
ABA Opinion 144 (1935).
65
ABA Canon 4 uses a slightly different test, saying, "A
lawyer assigned as counsel for an indigent prisoner ought
not to ask to be excused for any trivial reason . . .."
66
67
Cf. ABA Canon 7.
See ABA Canon 5.
68
Dr. Johnson's reply to Boswell upon being asked what
he thought of "supporting a cause which you know to be
bad" was : "Sir, you do not know it to be good or bad
till the Judge determines it. I have said that you are to
state facts fairly ; so that your thinking, or what you
call knowing, a cause to be bad, must be from reasoning, must be from supposing your arguments to be weak
and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the
Judge to whom you urge it : and if it does convince him,
why, then, Sir, you are wrong, and he is right." 2 Boswell, The Life of Johnson 47-48 (Hill ed. 1887).
69 "The lawyer deciding whether to undertake a case
must be able to judge objectively whether he is capable of
handling it and whether he can assume its burdens without
prejudice to previous commitments. . . ." Professional
Responsibility: Report of the Joint Conference, 44 A.B.A.J.
1158, 1218 (1958).
70
"The lawyer must decline to conduct a civil cause or
to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work
oppression or wrong." ABA Canon 30.
71 See ABA Canon 7.
72 Id.
"From the facts stated we assume that the client has
discharged the first attorney and given notice of the discharge. Such being the case, the second attorney may
properly accept employment. Canon 7; Opinions 10, 130,
149." ABA Opinion 209 (1941).
XXVIII
CODE OF PROFESSIONAL RESPONSIBILITY
This does not prohibit limited and dignified
identification of a lawyer as a lawyer as well
as by name 99:
EC 2-32 A decision by a lawyer to withdraw
should be made only on the basis of compelling
circumstances 73 , and in a matter pending before
a tribunal he must comply with the rules of the
tribunal regarding withdrawal. A lawyer should
not withdraw without considering carefully and
endeavoring to minimize the possible adverse effect on the rights of his client and the possibility
of prejudice to his client 74 as a result of his
withdrawal. Even when he justifiably withdraws,
a lawyer should protect the welfare of his client by
giving due notice of his withdrawal: 75 suggesting
employment of other counsel, delivering to the
client all papers and property to which the client
is entitled, cooperating with counsel subsequently
employed, and otherwise endeavoring to minimize
the possibility of harm. Further, he should refund
to the client any compensation not earned during
the employment:76
(1) In political advertisements when his
professional status is germane to the
political campaign or to a political issue.
(2) In public notices when the name and
profession of a lawyer are required or
authorized by law or are reasonably
pertinent for a purpose other than the
attraction of potential clients.si
(3) In routine reports and announcements
of a bona fide business, civic, professional, or political organization in which
he serves as a director or officer.
(4) In and on legal documents prepared by
him.
(5) In and on legal textbooks, treatises, and
other legal publications, and in dignified
advertisements thereof.
DISCIPLINARY RULES
DR 2-101 Publicity in Genera1.77
( A) A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any
form of public communication that contains
professionally self-laudatory statements calculated to attract lay clients; as used herein,
"public communication" includes, but is not
li mited to, communication by means of television, radio, motion picture, newspaper, magazine, or book.
( B) A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or
television announcements, display advertisements in city or telephone directories, or other
means of commercial publicity, 78 nor shall
he authorize or permit others to do so in his
behalf 79 except as permitted under DR 2-103.
3
See ABA Canon 44.
"I will carefully consider, before taking a case, whether
it appears that I can fully represent the client within the
framework of law. If the decision is in the affirmative,
then it will take extreme circumstances to cause me to decide later that I cannot so represent him." Thode, The
Ethical Standard for the Advocate, 39 Texas L.Rev. 575,
592 (1961) (from "A Proper Oath for Advocates").
74 ABA Opinion 314 (1965) held that a lawyer should not
disassociate himself from a cause when "it is obvious that
the very act of disassociation would have the effect of violating Canon 37."
ABA Canon 44 enumerates instances in which ". . .
the lawyer may be warranted in withdrawing on due notice to the client, allowing him time to employ another
lawyer."
76
See ABA Canon 44.
77
Cf. ABA Canon 27; see generally ABA Opinion 293
(1957).
( C) A lawyer shall not compensate or give any
thing of value to representatives of the press,
radio, television, or other communication
medium in anticipation of or in return for
professional publicity in a news item.82
DR 2-102 Professional Notices, Letterheads, Offices, and Law Lists.
( A) A lawyer or law firm shall not use professional cards, professional announcement cards,
ments and capabilities." Matter of Connelly, 18 App.Div.
2d 466, 478, 240 N.Y.S.2d 126, 138 (1963).
"An announcement of the fact that the lawyer had resigned and the name of the person to succeed him, or take
over his work, would not be objectionable, either as an
official communication to those employed by or connected
with the administrative agency or instrumentality [that
had employed him], or as a news release.
"But to include therein a statement of the lawyer's experience in and acquaintance with the various departments
and agencies of the government, and a laudation of his
legal ability, either generally or in a special branch of
the law, is not only bad taste but ethically improper.
"It can have but one primary purpose or object ; to aid
the lawyer in securing professional employment in private
practice by advertising his professional experience, attainments and ability." ABA Opinion 184 (1938).
Cf. ABA Opinions 285 (1951) and 140 (1935).
80 "The question is always . . . whether under the
circumstance the furtherance of the professional employment of the lawyer is the primary purpose of the advertisement, or is merely a necessary incident of a proper and
legitimate objective of the client which does not have the
effect of unduly advertising him." ABA Opinion 290 (1956).
See ABA Opinion 285 (1951).
31
See ABA Opinions 299 (1961), 290 (1956), 158 (1936),
and 100 (1933) ; cf. ABA Opinion 80 (1932).
cf. ABA Opinions 133 (1935), 116 (1934), 107 (1934), 73
(1932), 59 (1931), and 43 (1931).
78
79
"There can be no justification for the participation
and acquiescence by an attorney in the development and
publication of an article which, on its face, plainly amounts
to a self-interest and unethical presentation of his achieveXXIX
82
"Rule 2.
"[A] member of the State Bar shall not solicit professional employment by . .
"(4) The making of gifts to representatives of the
press, radio, television or any medium of communication in anticipation of or in return for publicity."
Cal.Business and Professions Code § 6076 (West 1962).
CODE OF PROFESSIONAL RESPONSIBILITY
office signs, letterheads, telephone directory
listings, law lists, legal directory listings, or
similar professional notices or devices, 83 except that the following may be used if they
are in dignified form:
ing his addresses, telephone numbers,
the name of his law firm, associates,
and any information permitted under
DR 2-105. A letterhead of a law firm
may also give the names of members
and associates, 90 and names and dates
relating to deceased and retired members 9 1 A lawyer may be designated
"Of Counsel" on a letterhead if he has
a continuing relationship with a lawyer or law firm, other than as a partner
or associate. A lawyer or law firm
may be designated as "General Counsel" or by similar professional reference on stationery of a client if he or
the firm devotes a substantial amount
of professional, time in the representation of that client. 92 The letterhead of
a law firm may give the names and
dates of predecessor firms in a continuing line of succession.
(1) A professional card of a lawyer identifying him by name and as a lawyer,
and giving his addresses, telephone
numbers, the name of his law firm, and
any information permitted under DR
2-105. A professional card of a law
firm may also give the names of members and associates. Such cards may
be used for identification 84 but may
not be published in periodicals, magazines, newspapers, 85 or other media.86
(2) A brief professional announcement card
stating new or changed associations or
addresses, change of firm name, or similar matters pertaining to the professional office of a lawyer or law firm,
which may be mailed to lawyers, clients,
former clients, personal friends, and
relatives. 87 It shall not state biographical data except to the extent reasonably necessary to identify the lawyer or to explain the change in his
association, but it may state the immediate past position of the lawyer.88
It may give the names and dates of
predecessor firms in a continuing line
of succession. It shall not state the
nature of the practice except as permitted under DR 2-105.89
(5) A listing of the office of a lawyer
or law firm in the alphabetical and
classified sections of the telephone directory or directories for the geographical area or areas in which the lawyer
resides or maintains offices or in which
a significant part of his clientele resides 93 and in the city directory of the
city in which his or the firm's office
is located; 94 but the listing may give
only the name of the lawyer or law
firm, the fact he is a lawyer, addresses,
and telephone numbers. 95 The listing
shall not be in distinctive form 96 or
type. 97 A law firm may have a listing
in the firm name separate from that of
its members and associates. 98 The listing in the classified section shall not
be under a heading or classification
other than "Attorneys" or "Lawyers",99
(3) A sign on or near the door of the office
and in the building directory identifying
the law office. The sign shall not state
the nature of the practice, except as
permitted under DR 2-105.
(4) A letterhead of a lawyer identifying
him by name and as a lawyer, and giv83
Cf. ABA Opinions 233 (1941) and 114 (1934).
84
See ABA Opinion 175 (1938).
85
See ABA Opinions 260 (1944) and 182 (1938).
86
But cf. ABA Opinions 276 (1947) and 256 (1943).
87
See ABA Opinion 301 (1961).
"[I]t has become commonplace for many lawyers to
participate in government service ; to deny them the right,
upon their return to private practice, to refer to their prior
employment in a brief and dignified manner, would place
an undue limitation upon a large element of our profession. It is entirely proper for a member of the profession
to explain his absence from private practice, where such
is the primary purpose of the announcement, by a brief
and dignified reference to the prior employment.
di
.
. [A]ny such announcement should be limited to
the immediate past connection of the lawyer with the government, made upon his leaving that position to enter private practice." ABA Opinion 301 (1961).
.
89
See ABA Canon 33.
92
But see ABA Opinion 285 (1951).
93
See ABA Opinion 295 (1959).
But see ABA Opinion 313 (1964) which says the Committee "approves a listing in the classified section of the
city directory for lawyers only when the listing includes
all lawyers residing in the community and when no charge
is made therefor."
94
88
See ABA Opinion 251 (1943).
"Those lawyers who are working for an individual
lawyer or a law firm may be designated on the letterhead
and in other appropriate places as `associates'." ABA
Opinion 310 (1963).
90
91
95
"The listing should consist only of the lawyer's name,
address and telephone number." ABA Opinion 313 (1964).
90
"[A]dding to the regular classified listing a 'second
line' in which a lawyer claims that he is engaged in a
'specialty' is an undue attempt to make his name distinctive." ABA Opinion 284 (1951).
97
"[Opinion 284] held that a lawyer could not with propriety have his name listed in distinctive type in a telephone directory or city directory. We affirm that opinion." ABA Opinion 313 (1964).
See ABA Opinions 123 (1934) and 53 (1931).
98
"[I]f a lawyer is a member of a law firm, both the
firm, and the individual lawyer may be listed separately."
ABA Opinion 313 (1964).
XXX
99
See ABA Opinion 284 (1951).
CODE OF PROFESSIONAL RESPONSIBILITY
except that additional headings or classifications descriptive of the types of
practice referred to in DR 2-105 are
permitted.100
(6) A listing in a reputable law list 101 or
legal directory giving brief biographical
and other informative data. A law list
or directory is not reputable if its
management or contents are likely to
be misleading or injurious to the public
or to the profession. 102 A law list is
conclusively established to be reputable
if it is certified by the American Bar
Association as being in compliance
with its rules and standards. The published data may include only the following: name, including name of law firm
and names of professional associates;
addresses 103 and telephone numbers;
one or more fields of law in which the
lawyer or law firm concentrates; 104 a
statement that practice is limited to one
or more fields of law; a statement that
the lawyer or law firm specializes in a
particular field of law or law practice
but only if authorized under DR 2-105
( A) (4) ; 105 date and place of birth;
date and place of admission to the bar
of state and federal courts; schools
attended, with dates of graduation, degrees, and other scholastic distinctions;
public or quasi-public offices; military
service; posts of honor; legal authorships; legal teaching positions; memberships, offices, committee assignments, and section memberships in bar
associations; memberships and offices
in legal fraternities and legal societies;
technical and professional associations
and societies; foreign language ability;
names and addresses of references,106
and, with their consent, names of clients
regularly represented.107
( B) A lawyer in private practice shall not practice
under a trade name, a name that is misleading as to the identity of the lawyer or lawyers
practicing under such name, or a firm name
containing names other than those of one or
more of the lawyers in the firm, except that
the name of a professional corporation or professional association may contain "P.C." or
"P.A." or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include
in, its name, the name or names of one or
more deceased or retired members of the
firm or of a predecessor firm in a continuing
line of succession. 108 A lawyer who assumes
a judicial, legislative, or public executive or
administrative post or office shall not permit
his name to remain in the name of a law firm
or to be used in professional notices of the
firm during any significant period in which
he is not actively and regularly practicing law
as a member of the firm, 100 and during such
period other members of the firm shall not
use his name in the firm name or in professional notices of the firm.110
100 See Silverman v. State Bar of Texas, 405 F.2d 410, (5th
Cir. 1968) ; but see ABA Opinion 286 (1952).
101
Cf. ABA Canon 43.
102
Cf. ABA Opinion 255 (1943).
"We are asked to define the word 'addresses' appearing in the second paragraph of Canon 27 . • • •
"It is our opinion that an address (other than a cable
address) within the intendment of the canon is that of the
lawyer's office or of his residence. Neither address should
be misleading. If, for example, an office address is given,
it must be that of a bona fide office. The residence address, if given, should be identified as such if the city or
other place of residence is not the same as that in which the
law office is located." ABA Opinion 249 (1942).
103
"[T]oday in various parts of the country Committees
on Professional Ethics of local and state bar associations
are authorizing lawyers to describe themselves in announcements to the Bar and in notices in legal periodicals and
approved law lists as specialists in a great variety of things.
Thus in the approved law lists or professional announcements there appear, in connection with the names of individual practitioners or firms, such designations as 'International Law, Public and Private' ; 'Trial Preparation
in Personal Injury and Negligence Actions' ; 'Philippine
War Damage Claims' ; 'Anti-Trust' ; 'Domestic Relations' ;
'Tax Law' ; 'Negligence Law'. It would seem that the
ABA has given at least its tacit approval to this sort of
announcement.
"It is important that this sort of description is not, in
New York at least, permitted on letterheads or shingles or
elsewhere in communications to laymen. This is subject
to the single exception that such announcement to laymen
is permitted in the four traditional specialties, Admiralty,
Patent, Copyright and Trade-mark." Report of the Special
Committee on Specialization and Specialized Legal Education, 79 A.B.A.Rep. 582, 586 (1954).
105 This provision is included to conform to action taken
by the ABA House of Delegates at the Mid-Winter Meet104
ing, January, 1969.
106 See ABA Canon 43 and ABA Opinion 119 (1934) ; but
see ABA Opinion 236 (1941).
107 See
ABA Canon 27.
W8
See ABA Canon 33; cf. ABA Opinions 318 (1967), 267
(1945), 219 (1941), 208 (1940), 192 (1939), 97 (1933), and 6
(1925).
109 ABA Opinion 318 (1967) held, "anything to the contrary in Formal Opinion 315 or in the other opinions cited
notwithstanding" that : "Where a partner whose name
appears in the name of a law firm is elected or appointed
to high local, state or federal office, which office he intends to occupy only temporarily, at the end of which time
he intends to return to his position with the firm, and
provided that he is not precluded by holding such office
from engaging in the practice of law and does not in fact
sever his relationship with the firm but only takes a leave
of absence, and provided that there is no local law, statute or custom to the contrary, his name may be retained
in the firm name during his term or terms of office, but
only if proper precautions are taken not to mislead the
public as to his degree of participation in the firm's affairs."
Cf. ABA Opinion 143 (1935), New York County Opinion
67, and New York City Opinions 36 and 798; but cf. ABA
Opinion 192 (1939) and Michigan Opinion 164.
XXXI
110 Cf. ABA Canon 33.
CODE OF PROFESSIONAL RESPONSIBILITY
(C) A lawyer shall not request a person or organization to recommend employment, as a private practitioner, of himself, his partner, or
associate, 118 except that he may request referrals from a lawyer referral service operated, sponsored, or approved by a bar association representative of the general bar of the
geographical area in which the association
exists and may pay its fees incident there-
(C) A lawyer shall not hold himself out as having
a partnership with one or more other lawyers
unless they are in fact partners.111
(D)
(E)
(F)
A partnership shall not be formed or continued between or among lawyers licensed in
different jurisdictions unless all enumerations
of the members and associates of the firm on
its letterhead and in other permissible listings
make clear the jurisdictional limitations on
those members and associates of the firm not
licensed to practice in all listed jurisdictions; 112 however, the same firm name may
be used in each jurisdiction.
to.119
(D)
A lawyer who is engaged both in the practice
of law and another profession or business
shall not so indicate on his letterhead, office
sign, or professional card, nor shall he identify himself as a lawyer in any publication in
connection with his other profession or business.
Nothing contained herein shall prohibit a lawyer from using or permitting the use, in connection with his name, of an earned degree
or title derived therefrom indicating his training in the law.
(1) A legal aid office or public defender
office:
(a) Operated or sponsored by a duly
accredited law school.
(b) Operated or sponsored by a bona
fide non-profit community organization.
(c) Operated or sponsored by a governmental agency.
(d) Operated, sponsored, or approved
by a bar association representative of the general bar of the geographical area in which the association exists.120
(2) A military legal assistance office.
DR 2-103 Recommendation of Professional Employment.113
(A)
A lawyer shall not recommend employment,
as a private practitioner, 114 of himself, his
partner, or associate to a non-lawyer who has
not sought his advice regarding employment
of a lawyer.115
(B) Except as permitted under DR 2-103(C), a
lawyer shall not compensate or give anything
of value to a person or organization to recommend or secure his employment 116 by a client,
or as a reward for having made a recommendation resulting in his employment 117 by a
client.
(3) A lawyer referral service operated,
sponsored, or approved by a bar association representative of the general
bar of the geographical area in which
the association exists.121
111 See ABA Opinion 277 (1948) ; cf. ABA Canon 33 and
ABA Opinions 318 (1967), 126 (1935), 115 (1934), and 106
(1934).
112 See ABA Opinions 318 (1967) and 316 (1967) ; cf. ABA
Canon 33.
113
Cf. ABA Canons 27 and 28.
114 "We think it clear that a lawyer's seeking employment in an ordinary law office, or appointment to a civil
service position, is not prohibited by . . . [Canon 27]."
ABA Opinion 197 (1939).
115 "[A] lawyer may not seek from persons not his clients
the opportunity to perform . . . a [legal] check-up."
ABA Opinion 307 (1962).
116
Cf. ABA Opinion 78 (1932).
117
" 'No financial connection of any kind between the
Brotherhood and any lawyer is permissible. No lawyer
can properly pay any amount whatsoever to the Brotherhood or any of its departments, officers or members as
compensation, reimbursement of expenses or gratuity in
connection with the procurement of a case.' " In re
Brotherhood of R. R. Trainmen, 13 Il1.2d 391, 398, 150 N.E.
2d 163, 167 (1958), quoted in In re Ratner, 194 Kan 362,
372, 399 P.2d 865, 873 (1965).
See ABA Opinion 147 (1935).
A lawyer shall not knowingly assist a person
or organization that recommends, furnishes,
or pays for legal services to promote the use
of his services or those of his partners or associates. However, he may cooperate in a dignified manner with the legal service activities
of any of the following, provided that his independent professional judgment is exercised
in behalf of his client without interference or
control by any organization or other person:
(4) A bar association representative of the
general bar of the geographical area in
which the association exists.122
118 "This Court has condemned the practice of ambulance chasing through the media of runners and touters.
In similar fashion we have with equal emphasis condemned
the practice of direct solicitation by a lawyer. We have
classified both offenses as serious breaches of the Canons
of Ethics demanding severe treatment of the offending
lawyer." State v. Dawson, 111 So.2d 427, 431 (Fla. 1959).
119 "Registrants [of a lawyer referral plan] may be required to contribute to the expense of operating it by a
reasonable registration charge or by a reasonable percentage of fees collected by them." ABA Opinion 291 (1956).
Cf. ABA Opinion 227 (1941).
120
Cf. ABA Opinion 148 (1935).
121
Cf. ABA Opinion 227 (1941).
"If a bar association has embarked on a program of
institutional advertising for an annual legal check-up and
provides brochures and reprints, it is not improper to have
these available in the lawyer's office for persons to read
and take." ABA Opinion 307 (1962).
Cf. ABA Opinion 121 (1934).
XXXII
122
CODE OF PROFESSIONAL RESPONSIBILITY
(5) Any other non-profit organization that
recommends, furnishes, or pays for legal services to its members or beneficiaries, but only in those instances and
to the extent that controlling constitutional interpretation at the time of the
rendition of the services requires the
allowance of such legal service activities,' 23 and only if the following conditions, unless prohibited by such interpretation, are met:
(a) The primary purposes of such
organization do not include the
rendition of legal services.
(b) The recommending, furnishing,
or paying for legal services to its
members is incidental and reasonably related to the primary
purposes of such organization.
(c) Such organization does not derive
a financial benefit from the rendition of legal services by the
lawyer.
(d) The member or beneficiary for
whom the legal services are rendered, and not such organization,
is recognized as the client of the
lawyer in that matter.
( E) A lawyer shall not accept employment when
he knows or it is obvious that the person who
seeks his services does so as a result of conduct prohibited under this Disciplinary Rule.
DR 2-104 Suggestion of Need of Legal Services.124
( A) A lawyer who has given unsolicited advice to
a layman that he should obtain counsel or
take legal action shall not accept employment
resulting from that advice, 125 except that:
(1) A lawyer may accept employment by
a close friend, relative, former client
(if the advice is germane to the former
employment), or one whom the lawyer
reasonably believes to be a client.126
(2) A lawyer may accept employment that
results from his participation in activities designed to educate laymen to rec123 United Mine Workers v. Ill. State Bar Ass'n, 389 U.S.
217, 19 L.Ed.2d 426, 88 S.Ct. 353 (1967) ; Brotherhood of
R.R. Trainmen v. Virginia, 371 U.S. 1, 12 L.Ed.2d 89, 84
S.Ct. 1113 (1964) ; NAACP v. Button, 371 U.S. 415, 9 L.
Ed.2d 405, 83 S.Ct. 328 (1963).
124
ABA Canon 28.
123
cf. ABA Opinions 229 (1941) and 173 (1937).
"It certainly is not improper for a lawyer to advise
his regular clients of new statutes, court decisions, and
administrative rulings, which may affect the client's interests, provided the communication is strictly limited to
such information. .
126
"When such communications go to concerns or individuals other than regular clients of the lawyer, they are
thinly disguised advertisements for professional employment, and are obviously improper." ABA Opinion 213
(1941).
"It is our opinion that where the lawyer has no reason
to believe that he has been supplanted by another lawyer,
it is not only his right, but it might even be his duty to
Black's Law Dictionary 4th Ed. Rev.-c
ognize legal problems, to make intell i
(3)
(4)
(5)
DR 2-105
-gentslciofue,rtilz
available legal services if such activities
are conducted or sponsored by any of
the offices or organizations enumerated
in DR 2-103(D) (1) through (5), to the
extent and tinder the conditions prescribed therein.
A lawyer wno is furnished or paid by
any of the offices or organizations
enumerated in DR 2-103(D) (1), (2), or
(5) may represent a member or beneficiary thereof, to the extent and under
the conditions prescribed therein.
Without affecting his right to accept
employment, a lawyer may speak publicly or write for publication on legal
topics 127 so long as he does not emphasize his own professional experience
or reputation and does not undertake
to give individual advice.
If success in asserting rights or defenses of his client in litigation in the nature
of a class action is dependent upon the
joinder of others, a lawyer may accept,
but shall not seek, employment from
those contacted for the purpose of obtaining their joinder.128
Limitation of Practice.129
( A) A lawyer shall not hold himself out publicly
as a specialist 130 or as limiting his practice,131
except as permitted under DR 2-102(A) (6)
or as follows:
(1) A lawyer admitted to practice before the
United States Patent Office may use
the designation "Patents," "Patent Attorney," or "Patent Lawyer," or any
combination of those terms, on his letterhead and office sign. A lawyer en-
gaged in the trademark practice may
use the designation "Trademarks,"
"Trademark Attorney," or "Trademark
Lawyer," or any combination of those
terms, on his letterhead and office sign,
and a lawyer engaged in the admiralty
practice may use the designation "Admiralty," "Proctor in Admiralty," or
"Admiralty Lawyer," or any combination of those terms, on his letterhead
and office sign.132
advise his client of any change of fact or law which might
defeat the client's testamentary purpose as expressed in the
will
"Periodic notices might be sent to the client for whom
a lawyer has drawn a will, suggesting that it might be wise
for the client to reexamine his will to determine whether
or not there has been any change in his situation requiring a modification of his will." ABA Opinion 210 (1941).
Cf. ABA Canon 28.
127
Cf. ABA Opinion 168 (1937).
128
But cf. ABA Opinion 111 (1934).
129
See ABA Canon 45; cf. ABA Canons 27, 43, and 46.
130
Cf. ABA Opinions 228 (1941) and 194 (1939).
131
See ABA Opinions 251 (1943) and 175 (1938).
132
See ABA Canon 27; cf. ABA Opinion 286 (1952).
XXXIII
CODE OF PROFESSIONAL RESPONSIBILITY
(2) A lawyer may permit his name to be
listed in lawyer referral service offices
according to the fields of law in which
he will accept referrals.
(3) A lawyer available to act as a consultant to or as an associate of other lawyers in a particular branch of law or
legal service may distribute to other
lawyers and publish in legal journals a
dignified announcement of such availability, 133 but the announcement shall
not contain a representation of special
competence or experience. 134 The announcement shall not be distributed to
lawyers more frequently than once in a
calendar year, but it may be published
periodically in legal journals.
(4) A lawyer who is certified as a specialist
in a particular field of law or law practice by the authority having jurisdiction
under state law over the subject of
specialization by lawyers may hold himself out as such specialist but only in
accordance with the rules prescribed by
that authority.135
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the
client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability
of the lawyer or lawyers performing
the services.
(8) Whether the fee is fixed or contingent.138
( C) A lawyer shall not enter into an arrangement
for, charge, or collect a contingent fee for representing a defendant in a criminal case.139
DR 2-107 Division of Fees Among Lawyers.
( A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner
in or associate of his law firm or law office,
unless:
(1) The client consents to employment of
the other lawyer after a full disclosure
that a division of fees will be made.
(2) The division is made in proportion to
the services performed and responsibility assumed by each.140
(3) The total fee of the lawyers does not
clearly exceed reasonable compensation
for all legal services they rendered the
client.141
DR 2-106 Fees for Legal Services.136
( A) A lawyer shall not enter into an agreement
for, charge, or collect an illegal or clearly excessive fee.137
( B) A fee is clearly excessive when, after a review
of the facts, a lawyer of ordinary prudence
would be left with a definite and firm conviction that the fee is in excess of a reasonable
fee. Factors to be considered as guides in determining the reasonableness of a fee include
the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client,
that the acceptance of the particular
employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
133
Cf. ABA Opinion 194 (1939).
134 See
ABA Canon 46.
This provision is included to conform to action taken
by the ABA House of Delegates at the Mid-Winter Meeting,
January, 1969.
135
136 See ABA Canon 12.
137
The charging of a "clearly excessive fee" is a ground
for discipline. State ex rel. Nebraska State Bar Ass'n. v.
Richards, 165 Neb. 80, 90, 84 N.W.2d 136, 143 (1957).
"An attorney has the right to contract for any fee he
chooses so long as it is not excessive (see Opinion 190),
and this Committee is not concerned with the amount of
such fees unless so excessive as to constitute a misappropriation of the client's funds (see Opinion 27)." ABA
Opinion 320 (1968).
Cf. ABA Opinions 209 (1940), 190 (1939), and 27 (1930)
and State ex rel. Lee v. Buchanan, 191 So.2d 33 (Fla. 1966).
138 Cf. ABA Canon 13; see generally MacKinnon, Contingent Fees for Legal Services (1964) (A Report of the
American Bar Foundation).
139 "Contingent fees, whether in civil or criminal cases,
are a special concern of the law. .
"In criminal cases, the rule is stricter because of the
danger of corrupting justice. The second part of Section
542 of the Restatement [of Contracts] reads : 'A bargain
to conduct a criminal case . . . in consideration of a
promise of a fee contingent on success is illegal. . . .
Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865, 967 (1959).
"The third area of practice in which the use of the contingent fee is generally considered to be prohibited is the
prosecution and defense of criminal cases. However, there
are so few cases, and these are predominantly old, that
it is doubtful that there can be said to be any current law
on the subject. . . . In the absence of cases on the
validity of contingent fees for defense attorneys, it is
necessary to rely on the consensus among commentators
that such a fee is void as against public policy. The nature
of criminal practice itself makes unlikely the use of contingent fee contracts." MacKinnon, Contingent Fees for
Legal Services 52 (1964) (A Report of the American Bar
Foundation).
140 See ABA Canon 34 and ABA Opinions 316 (1967) and
294 (1958) ; see generally ABA Opinions 265 (1945), 204
(1940), 190 (1939), 171 (1937), 153 (1936), 97 (1933), 63
(1932), 28 (1930), 27 (1930), and 18 (1930).
141 "Canon 12 contemplates that a lawyer's fee should
not exceed the value of the services rendered. .
"Canon 12 applies, whether joint or separate fees ari
charged [by associate attorneys] . . .." ABA Opinion
204 (1940).
XX XIV
CODE OF PROFESSIONAL RESPONSIBILITY
(B)
taken reasonable steps to avoid foreseeable prejudice to the rights of his
client, including giving due notice to
his client, allowing time for employment of other counsel, delivering to the
client all papers and property to which
the client is entitled, and complying
with applicable laws and rules.
This Disciplinary Rule does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.
DR 2-108 Agreements Restricting the Practice of
a Lawyer.
(A)
(B)
A lawyer shall not be a party to or participate
in a partnership or employment agreement
with another lawyer that restricts the right
of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of
retirement benefits.142
(3) A lawyer who withdraws from employment shall refund promptly any part
of a fee paid in advance that has not
been earned.
( B) Mandatory withdrawal.
A lawyer representing a client before a
tribunal, with its permission if required by its
rules, shall withdraw from employment, and
a lawyer representing a client in other matters
shall withdraw from employment, if:
In connection with the settlement of a controversy or suit, a lawyer shall not enter into
an agreement that restricts his right to practice law.
(1) He knows or it is obvious that his client
is bringing the legal action, conducting
the defense, or asserting a position in
the litigation, or is otherwise having
steps taken for him, merely for the purpose of harassing or maliciously injuring any person.
DR 2-109 Acceptance of Employment.
( A) A lawyer shall not accept employment on behalf of a person if he knows or it is obvious
that such person wishes to:
(1) Bring a legal action, conduct a defense,
or assert a position in litigation, or
otherwise have steps taken for him,
merely for the purpose of harassing or
maliciously injuring any person.143
(2) Present a claim or defense in litigation
that is not warranted under existing
law, unless it can be supported by good
faith argument for an extension, modification, or reversal of existing law.
DR 2-110 Withdrawal from Employment.144
( A) In General.
(1) If permission for withdrawal from employment is required by the rules of a
tribunal, a lawyer shall not withdraw
from employment in a proceeding before that tribunal without its permission.
(2) He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.145
(3) His mental or physical condition renders it unreasonably difficult for him
to carry out the employment effectively.
(4) He is discharged by his client.
(C) Permissive withdrawal.146
If DR 2-110(B) is not applicable, a lawyer
may not request permission to withdraw in
matters pending before a tribunal, and may
not withdraw in other matters, unless such
request or such withdrawal is because:
(1) His client:
(a) Insists upon presenting a claim
or defense that is not warranted
under existing law and cannot be
supported by good faith argument
for an extension, modification, or
reversal of existing law.147
(b) Personally seeks to pursue an illegal course of conduct.
(c) Insists that the lawyer pursue a
course of conduct that is illegal
or that is prohibited under the
Disciplinary Rules.
(d) By other conduct renders it unreasonably difficult for the law-
(2) In any event, a lawyer shall not withdraw from employment until he has
142 "[A] general covenant restricting an employed lawyer, after leaving the employment, from practicing in the
community for a stated period, appears to this Committee
to be an unwarranted restriction on the right of a lawyer
to choose where he will practice and inconsistent with our
professional status. Accordingly, the Committee is of the
opinion it would be improper for the employing lawyer to
require the covenant and likewise for the employed lawyer
to agree to it." ABA Opinion 300 (1961).
See ABA Canon 30.
"Rule 13. . . . A member of the State Bar shall not
accept employment to prosecute or defend a case solely
out of spite, or solely for the purpose of harassing or delaying another . . .." Cal.Business and Professions
Code 6067 (West 1962).
143
144
Cf. ABA Canon 44.
145 See also Code of Professional Responsibility, DR 5102 and DR 5-105.
146
Cf. ABA Canon 4.
Cf. Anders v. California, 386 U.S. 738, 18 L.Ed.2d
493, 87 S.Ct. 1396 (1967), rehearing denied, 388 U.S. 924,
18 L.Ed.2d 1377, 87 S.Ct. 2094 (1967).
XXXV
147
CODE OF PROFESSIONAL RESPONSIBILITY
yer to carry out his employment
effectively.
(e) Insists, in a matter not pending
before a tribunal, that the lawyer
engage in conduct that is contrary
to the judgment and advice of the
lawyer but not prohibited under
the Disciplinary Rules.
(f) Deliberately disregards an agreement or obligation to the lawyer
as to expenses or fees.
His continued employment is likely to
result in a violation of a Disciplinary
Rule.
His inability to work with co-counsel indicates that the best interests of the
client likely will be served by withdrawal.
His mental or physical condition renders it difficult for him to carry out the
employment effectively.
His client knowingly and freely assents
to termination of his employment.
He believes in good faith, in a proceeding pending before a tribunal, that the
tribunal will find the existence of other
good cause for withdrawal.
CANON 3
A Lawyer Should Assist in Preventing the
Unauthorized Practice of Law
ETHICAL CONSIDERATIONS
EC 3-1 The prohibition against the practice of
law by a layman is grounded in the need of the
public for integrity and competence of those who
undertake to render legal services. Because of the
fiduciary and personal character of the lawyerclient relationship and the inherently complex nature of our legal system, the public can better be
assured of the requisite responsibility and competence if the practice of law is confined to those
who are subject to the requirements and regulations imposed upon members of the legal profession.
EC 3-2 The sensitive variations in the considerations that bear on legal determinations often make
it difficult even for a lawyer to exercise appropriate professional judgment, and it is therefore
essential that the personal nature of the relationship of client and lawyer be preserved. Competent
professional judgment is the product of a trained
familiarity with law and legal processes, a disciplined, analytical approach to legal problems, and
a firm ethical commitment.
EC 3-3 A non-lawyer who undertakes to handle
legal matters is not governed as to integrity or
legal competence by the same rules that govern
the conduct of a lawyer. A lawyer is not only
subject to that regulation but also is committed to
high standards of ethical conduct. The public interest is best served in legal matters by a regulated
profession committed to such standards.' The
Disciplinary Rules protect the public in that they
prohibit a lawyer from seeking employment by improper overtures, from acting in cases of divided
loyalties, and from submitting to the control of
others in the exercise of his judgment. Moreover,
a person who entrusts legal matters to a lawyer
is protected by the attorney-client privilege and
by the duty of the lawyer to hold inviolate the
confidences and secrets of his client.
EC 3-4 A layman who seeks legal services often
is not in a position to judge whether he will receive proper professional attention. The entrustment of a legal matter may well involve the confidences, the reputation, the property, the freedom,
or even the life of the client. Proper protection
of members of the public demands that no person
be permitted to act in the confidential and demanding capacity of a lawyer unless he is subject to the
regulations of the legal profession.
EC 3-5 It is neither necessary nor desirable to
attempt the formulation of a single, specific definition of what constitutes the practice of law.2
Functionally, the practice of law relates to the
rendition of services for others that call for the
professional judgment of a lawyer. The essence
of the professional judgment of the lawyer is his
educated ability to relate the general body and
philosophy of law to a specific legal problem of a
client; and thus, the public interest will be better
served if only lawyers are permitted to act in matters involving professional judgment. Where this
professional judgment is not involved, non-lawyers,
such as court clerks, police officers, abstracters,
and many governmental employees, may engage
in occupations that require a special knowledge of
law in certain areas. But the services of a lawyer
are essential in the public interest whenever the
exercise of professional legal judgment is required.
EC 3-6 A lawyer often delegates tasks to clerks,
secretaries, and other lay persons. Such delegation
is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work,
and has complete professional responsibility for
the work product. 3 This delegation enables a law1
"The condemnation of the unauthorized practice of law
is designed to protect the public from legal services by
persons unskilled in the law. The prohibition of lay intermediaries is intended to insure the loyalty of the lawyer to the client unimpaired by intervening and possibly
conflicting interests." Cheatham, Availability of Legal
Services: The Responsibility of the Individual Lawyer
and of the Organized Bar, 12 U.C.L.A.L.Rev. 438, 439
(1965).
2 "What constitutes unauthorized practice of the law in
a particular jurisdiction is a matter for determination by
the courts of that jurisdiction." ABA Opinion 198 (1939).
"In the light of the historical development of the lawyer's functions, it is impossible to lay down an exhaustive
definition of 'the practice of law' by attempting to enumerate every conceivable act performed by lawyers in the
normal course of their work." State Bar of Arizona v.
Arizona Land Title & Trust Co., 90 Ariz. 76, 87, 366 P.2d
1, 8-9 (1961), modified, 91 Ariz. 293, 371 P.2d 1020 (1962).
3
"A lawyer can employ lay secretaries, lay investigators,
lay detectives, lay researchers, accountants, lay scriveners,
XXXVI
CODE OF PROFESSIONAL RESPONSIBILITY
yer to render legal service more economically and
efficiently.
EC 3-7 The prohibition against a non-lawyer
practicing law does not prevent a layman from
representing himself, for then he is ordinarily exposing only himself to possible injury. The purpose of the legal profession is to make educated
legal representation available to the public; but
anyone who does not wish to avail himself of such
representation is not required to do so. Even so,
the legal profession should help members of the
public to recognize legal problems and to understand why it may be unwise for them to act for
themselves in matters having legal consequences.
EC 3-8 Since a lawyer should not aid or encourage a layman to practice law, he should not
practice law in association with a layman or otherwise share legal fees with a layman. 4 This does
not mean, however, that the pecuniary value of the
interest of a deceased lawyer in his firm or practice may not be paid to his estate or specified persons such as his widow or heirs. 5 In like manner,
nonlawyer draftsmen or nonlawyer researchers. In fact,
he may employ nonlawyers to do any task for him except
counsel clients about law matters, engage directly in the
practice of law, appear in court or appear in formal proceedings a part of the judicial process, so long as it is he
who takes the work and vouches for it to the client and
becomes responsible to the client." ABA Opinion 316
(1967).
ABA Opinion 316 (1967) also stated that if a lawyer practices law as part of a law firm which includes lawyers
from several states, he may delegate tasks to firm members in other states so long as he "is the person who, on
behalf of the firm, vouched for the work of all of the others and, with the client and in the courts, did the legal acts
defined by that state as the practice of law."
"A lawyer cannot delegate his professional responsibility
to a law student employed in his office. He may avail
himself of the assistance of the student in many of the
fields of the lawyer's work, such as examination of case
law, finding and interviewing witnesses, making collections
of claims, examining court records, delivering papers,
conveying important messages, and other similar matters.
But the student is not permitted, until he is admitted to
the Bar, to perform the professional functions of a lawyer,
such as conducting court trials, giving professional advice
to clients or drawing legal documents for them. The student in all his work must act as agent for the lawyer employing him, who must supervise his work and be responsible for his good conduct." ABA Opinion 85 (1932).
4
"No division of fees for legal services is proper, except with another lawyer . . .." ABA Canon 34. Otherwise, according to ABA Opinion 316 (1967), "[t]he Canons of Ethics do not examine into the method by which
such persons are remunerated by the lawyer. . . . They
may be paid a salary, a per diem charge, a flat fee, a contract price, etc."
See ABA Canons 33 and 47.
5
"Many partnership agreements provide that the active
partners, on the death of any one of them, are to make
payments to the estate or to the nominee of a deceased partner on a pre-determined formula. It is only where the
effect of such an arrangement is to make the estate or
nominee a member of the partnership along with the surviving partners that it is prohibited by Canon 34. Where
the payments are made in accordance with a pre-existing
agreement entered into by the deceased partner during his
lifetime and providing for a fixed method for determining
profit-sharing retirement plans of a lawyer or law
firm which include non-lawyer office employees
are not improper. 6 These limited exceptions to
the rule against sharing legal fees with laymen are
permissible since they do not aid or encourage
laymen to practice law.
EC 3-9 Regulation of the practice of law is accomplished principally by the respective states.?
Authority to engage in the practice of law conferred in any jurisdiction is not per se a grant of
the right to practice elsewhere, and it is improper
for a lawyer to engage in practice where he is
not permitted by law or by court order to do so.
However, the demands of business and the mobility
of our society pose distinct problems in the regulation of the practice of law by the states. 8 In furtherance of the public interest, the legal profession
should discourage regulation that unreasonably imposes territorial limitations upon the right of a
lawyer to handle the legal affairs of his client or
upon the opportunity of a client to obtain the services of a lawyer of his choice in all matters including the presentation of a contested matter in a
tribunal before which the lawyer is not permanently admitted to practice.9
their amount based upon the value of services rendered
during the partner's lifetime and providing for a fixed
period over which the payments are to be made, this is
not the case. Under these circumstances, whether the payments are considered to be delayed payment of compensation earned but withheld during the partner's lifetime, or
whether they are considered to be an approximation of his
interest in matters pending at the time of his death, is immaterial. In either event, as Henry S. Drinker says in his
book, Legal Ethics, at page 189: 'It would seem, however,
that a reasonable agreement to pay the estate a proportion
of the receipts for a reasonable period is a proper practical
settlement for the lawyer's services to his retirement or
death.' " ABA Opinion 308 (1963).
6
Cf. ABA Opinion 311 (1964).
7
"That the States have broad power to regulate the
practice of law is, of course, beyond question." United
Mine Workers v. Ill. State Bar Ass'n, 389 U.S. 217, 222
(1967).
"It is a matter of law, not of ethics, as to where an individual may practice law. Each state has its own rules."
ABA Opinion 316 (1967).
8
"Much of clients' business crosses state lines. People
are mobile, moving from state to state. Many metropolitan areas cross state lines. It is common today to
have a single economic and social community involving
more than one state. The business of a single client may
involve legal problems in several states." ABA Opinion
316 (1967).
9
"[W] e reaffirmed the general principle that legal services to New Jersey residents with respect to New Jersey
matters may ordinarily be furnished only by New Jersey
counsel ; but we pointed out that there may be multistate
transactions where strict adherence to this thesis would not
be in the public interest and that, under the circumstances,
it would have been not only more costly to the client but
also 'grossly impractical and inefficient' to have had the
settlement negotiations conducted by separate lawyers from
different states." In re Estate of Waring, 47 N.J. 367,
376, 221 A.2d 193, 197 (1966).
Cf. ABA Opinion 316 (1967).
XXXVII
CODE OF PROFESSIONAL RESPONSIBILITY
DISCIPLINARY RULES
CANON 4
A Lawyer Should Preserve the Confidences
and Secrets of a Client
DR 3-101 Aiding Unauthorized Practice of Law.10
(A) A lawyer shall not aid a non-lawyer in the unauthorized practice of law.11
(B) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of
regulations of the profession in that jurisdiction.12
DR 3-102 Dividing Legal Fees with a Non-Lawyer.
( A) A lawyer or law firm shall not share legal fees
with a non-lawyer, 13 except that:
(1) An agreement by a lawyer with his
firm, partner, or associate may provide
for the payment of money, over a reasonable period of time after his death,
to his estate or to one or more specified
persons.14
(2) A lawyer who undertakes to complete
unfinished legal business of a deceased
lawyer may pay to the estate of the deceased lawyer that proportion of the
total compensation which fairly represents the services rendered by the deceased lawyer.
(3) A lawyer or law firm may include nonlawyer employees in a retirement plan,
even though the plan is based in whole
or in part on a profit-sharing arrangement.15
DR 3-103 Forming a Partnership with a NonLawyer.
(A) A lawyer shall not form a partnership with
a non-lawyer if any of the activities of the
partnership consist of the practice of law.16
10 Conduct permitted by the Disciplinary Rules of Canons 2 and 5 does not violate DR 3-101.
11 See ABA Canon 47.
It should be noted, however, that a lawyer may engage in conduct, otherwise prohibited by this Disciplinary
Rule, where such conduct is authorized by preemptive federal legislation. See Sperry v. Florida, 373 U.S. 379, 10
L.Ed.2d 428, 83 S.Ct. 1322 (1963).
13
See ABA Canon 34 and ABA Opinions 316 (1967), 180
(1938), and 48 (1931).
"The receiving attorney shall not under any guise or
form share his fee for legal services with a lay agency,
personal or corporate, without prejudice, however, to the
right of the lay forwarder to charge and collect from the,
creditor proper compensation for non-legal services rendered by the law [sic] forwarder which are separate and
apart from the services performed by the receiving attorney." ABA Opinion 294 (1958).
12
See ABA Opinions 309 (1963) and 266 (1945).
Cf. ABA Opinion 311 (1964).
16 See ABA Canon 33; cf. ABA Opinions 239 (1942) and
201 (1940).
ABA Opinion 316 (1967) states that lawyers licensed in
different jurisdictions may, under certain conditions, enter "into an arrangement for the practice of law" and
that a lawyer licensed in State A is not, for such purpose,
a layman in State B.
14
15
ETHICAL CONSIDERATIONS
EC 4-1 Both the fiduciary relationship existing
between lawyer and client and the proper functioning of the legal system require the preservation
by the lawyer of confidences and secrets of one
who has employed or sought to employ him. 1 A
client must feel free to discuss whatever he wishes
with his lawyer and a lawyer must be equally free
to obtain information beyond that volunteered by
his client. 2 A lawyer should be fully informed of
all the facts of the matter he is handling in order
for his client to obtain the full advantage of our
legal system. It is for the lawyer in the exercise
of his independent professional judgment to separate the relevant and important from the irrelevant
and unimportant. The observance of the ethical
obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to
proper representation of the client but also encourages laymen to seek early legal assistance.
EC 4-2 The obligation to protect confidences and
secrets obviously does not preclude a lawyer from
revealing information when his client consents
1
See ABA Canons 6 and 37 and ABA Opinion 287 (1953).
"The reason underlying the rule with respect to confidential communications between attorney and client is
well stated in Mecham on Agency, 2d Ed., Vol. 2, § 2297,
as follows : 'The purposes and necessities of the relation
between a client and his attorney require, in many cases,
on the part of the client, the fullest and freest disclosures
to the attorney of the client's objects, motives and acts.
This disclosure is made in the strictest confidence, relying upon the attorney's honor and fidelity. To permit the
attorney to reveal to others what is so disclosed, would be
not only a gross violation of a sacred trust upon his
part, but it would utterly destroy and prevent the usefulness and benefits to be derived from professional assistance. Based upon considerations of public policy, therefore, the law wisely declares that all confidential communications and disclosures, made by a client to his legal
adviser for the purpose of obtaining his professional aid
or advice, shall be strictly privileged ;—that the attorney
shall not be permitted, without the consent of his client,—
and much less will he be compelled—to reveal or disclose
communications made to him under such circumstances.' "
ABA Opinion 250 (1943).
"While it is true that complete revelation of relevant
facts should be encouraged for trial purposes, nevertheless
an attorney's dealings with his client, if both are sincere, and if the dealings involve more than mere technical
matters, should be immune to discovery proceedings.
There must be freedom from fear of revealment of matters disclosed to an attorney because of the peculiarly
intimate relationship existing." Ellis-Foster Co. v. Union
Carbide & Carbon Corp., 159 F.Supp. 917, 919 (D.N.J.
1958).
Cf. ABA Opinions 314 (1965), 274 (1946) and 268 (1945).
2 "While it is the great purpose of law to ascertain
the truth, there is the countervailing necessity of insuring
the right of every person to freely and fully confer and
confide in one having knowledge of the law, and skilled in
its practice, in order that the former may have adequate
advice and a proper defense. This assistance can be made
safely and readily available only when the client is free
XXXVIII
CODE OF PROFESSIONAL RESPONSIBILITY
after full disclosure, 3 when necessary to perform
his professional employment, when permitted by
a Disciplinary Rule, or when required by law. Unless the client otherwise directs, a lawyer may disclose the affairs of his client to partners or associates of his firm. It is a matter of common knowledge that the normal operation of a law office exposes confidential professional information to nonlawyer employees of the office, particularly secretaries and those having access to the files; and this
obligates a lawyer to exercise care in selecting and
training his employees so that the sanctity of all
confidences and secrets of his clients may be preserved. If the obligation extends to two or more
clients as to the same information, a lawyer should
obtain the permission of all before revealing the
information. A lawyer must always be sensitive
to the rights and wishes of his client and act
scrupulously in the making of decisions which may
involve the disclosure of information obtained in
his professional relationship. 4 Thus, in the absence of consent of his client after full disclosure,
a lawyer should not associate another lawyer in
the handling of a matter; nor should he, in the absence of consent, seek counsel from another lawyer
if there is a reasonable possibility that the identi
of the client or his confidences or secrets would be
revealed to such lawyer. Both social amenities
and professional duty should cause a lawyer to
shun indiscreet conversations concerning his
clients.
EC 4-3 Unless the client otherwise directs, it is
not improper for a lawyer to give limited information from his files to an outside agency necessary
for statistical, bookkeeping, accounting, data processing, banking, printing, or other legitimate purposes, provided he exercises due care in the selection of the agency and warns the agency that the
information must be kept confidential.
EC 4-4 The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard
the confidences and secrets of his client. This
ethical precept, unlike the evidentiary privilege,
exists without regard to the nature or source of
information or the fact that others share the
knowledge. A lawyer should endeavor to act in
a manner which preserves the evidentiary privilege; for example, he should avoid professional
from the consequences of apprehension of disclosure by
reason of the subsequent statements of the skilled lawyer."
Baird v. Koerner, 279 F.2d 623, 629-30 (9th Cir. 1960).
Cf. ABA Opinion 150 (1936).
3
"Where . . . [a client] knowingly and after full
disclosure participates in a [legal fee] financing plan
which requires the furnishing of certain information to
the bank, clearly by his conduct he has waived any privilege as to that information." ABA Opinion 320 (1968).
4
"The lawyer must decide when he takes a case whether
it is a suitable one for him to undertake and after this
decision is made, he is not justified in turning against
his client by exposing injurious evidence entrusted to
him. . . . [D]oing something intrinsically regrettable,
because the only alternative involves worse consequences,
is a necessity in every profession." Williston, Life and
Law 271 (1940).
Cf. ABA Opinions 177 (1938) and 83 (1932).
discussions in the presence of persons to whom the
privilege does not extend. A lawyer owes an obligation to advise the client of the attorney-client
privilege and timely to assert the privilege unless
it is waived by the client.
EC 4-5 A lawyer should not use information acquired in the course of the representation of a
client to the disadvantage of the client and a lawyer should not use, except with the consent of his
client after full disclosure, such information for
his own purposes. 5 Likewise, a lawyer should be
diligent in his efforts to prevent the misuse of such
information by his employees and associates.6
Care should be exercised by a lawyer to prevent
the disclosure of the confidences and secrets of
one client to another," and no employment should
be accepted that might require such disclosure.
EC 4-6 The obligation of a lawyer to preserve the
confidences and secrets of his client continues after
the termination of his employment. 8 Thus a lawyer should not attempt to sell a law practice as a
going business because, among other reasons, to
do so would involve the disclosure of confidences
and secrets. 9 A lawyer should also provide for the
protection of the confidences and secrets of his
client following the termination of the practice of
the lawyer, whether termination is due to death,
disability, or retirement. For example, a lawyer
might provide for the personal papers of the client
to be returned to him and for the papers of the
lawyer to be delivered to another lawyer or to be
destroyed. In determining the method of disposition, the instructions and wishes of the client
should be a dominant consideration.
DISCIPLINARY RULES
DR 4-101 Preservation of Confidences and Secrets of a Client.10
( A) "Confidence" refers to information protected
by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship
that the client has requested be held inviolate
or the disclosure of which would be emSee ABA Canon 11.
6
See ABA Canon 37.
7
See ABA Canons 6 and 37.
"[A]n attorney must not accept professional employment
against a client or a former client which will, or even may
require him to use confidential information obtained by the
attorney in the course of his professional relations with
such client regarding the subject matter of the employment . .
" ABA Opinion 165 (1936).
8
See ABA Canon 37.
"Confidential communications between an attorney and
his client, made because of the relationship and concerning
the subject-matter of the attorney's employment, are
generally privileged from disclosure without the consent of the client, and this privilege outlasts the attorney's employment. Canon 37." ABA Opinion 154 (1936).
9
Cf. ABA Opinion 266 (1945).
10
XXXIX
See ABA Canon 37; cf. ABA Canon 6.
CODE OF PROFESSIONAL RESPONSIBILITY
barrassing or would be likely to be detrimental to the client.
(3) The intention of his client to commit a
crime 16 and the information necessary
to prevent the crime.17
(4) Confidences or secrets necessary to establish or collect his fee 18 or to defend
himself or his employees or associates
against an accusation of wrongful conduct.19
( B) Except when permitted under DR 4-101(C),
a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his
client."
(2) Use a confidence or secret of his client
to the disadvantage of the client.
(3) Use a confidence or secret of his client
for the advantage of himself 12 or of a
third person, 13 unless the client consents after full disclosure.
( D) A lawyer shall exercise reasonable care to
prevent his employees, associates, and others
whose services are utilized by him from disclosing or using confidences or secrets of a
client, except that a lawyer may reveal the
information allowed by DR 4-101(C) through
an employee.
(C) A lawyer may reveal:
(1) Confidences or secrets with the consent
of the client or clients affected, but only
after a full disclosure to them.14
(2) Confidences or secrets when permitted
under Disciplinary Rules or required by
law or court order.15
11
"§ 6068 .
.
It is the duty of an attorney :
"(e) To maintain inviolate the confidence, and at every
peril to himself to preserve the secrets, of his client." Cal.
Business and Professions Code § 6068 (West 1962). Virtually the same provision is found in the Oregon statutes.
Ore.Rev.Stats. ch. 9, § 9.460(5).
"Communications between lawyer and client are privileged (Wigmore on Evidence, 3d. Ed., Vol. 8, §§ 22902329). The modern theory underlying the privilege is subjective and is to give the client freedom of apprehension
in consulting his legal adviser (ibid., § 2290, p. 548). The
privilege applies to communications made in seeking legal
advice for any purpose (ibid., § 2294, p. 563). The mere
circumstance that the advice is given without charge therefore does not nullify the privilege (ibid., § 2303)." ABA
Opinion 216 (1941).
"It is the duty of an attorney to maintain the confidence
and preserve inviolate the secrets of his client . . ."
ABA Opinion 155 (1936).
be punished. In failing to disclose his client's whereabouts as a fugitive under these circumstances the attorney would not only be aiding his client to escape trial on
the charge for which he was indicted, but would likewise
be aiding him in evading prosecution for the additional
offense of escape.
"It is the opinion of the committee that under such circumstances the attorney's knowledge of his client's whereabouts is not privileged, and that he may be disciplined
for failing to disclose that information to the proper authorities. . .
" ABA Opinion 155 (1936).
"We held in Opinion 155 that a communication by a
client to his attorney in respect to the future commission
of an unlawful act or to a continuing wrong is not privileged from disclosure. Public policy forbids that the relation of attorney and client should be used to conceal
wrongdoing on the part of the client.
"When an attorney representing a defendant in a
criminal case applies on his behalf for probation or suspension of sentence, he represents to the court, by implication
at least, that his client will abide by the terms and conditions of the court's order. When that attorney is later
advised of a violation of that order, it is his duty to advise his client of the consequences of his act, and endeavor
to prevent a continuance of the wrongdoing. If his client
thereafter persists in violating the terms and conditions of
his probation, it is the duty of the attorney as an officer
of the court to advise the proper authorities concerning his
client's conduct. Such information, even though coming
to the attorney from the client in the course of his professional relations with respect to other matters in which he
represents the defendant, is not privileged from disclosure.
. ." ABA Opinion 156 (1936).
12 See ABA Canon 11.
"The provision respecting employment is in accord
with the general rule announced in the adjudicated cases
that a lawyer may not make use of knowledge or information acquired by him through his professional relations
with his client, or in the conduct of his client's business,
to his own advantage or profit (7 C.J.S., § 125, p. 958;
Healy v. Gray, 184 Iowa 111, 168 N.W. 222; Baumgardner
v. Hudson, D.C.App., 277 F. 552; Goodrum v. Clement,
D.C.App., 277 F. 586)." ABA Opinion 250 (1943).
13
16 ABA Opinion 314 (1965) indicates that a lawyer must
disclose even the confidences of his clients if "the facts
in the attorney's possession indicate beyond reasonable
doubt that a crime will be committed."
See ABA Opinion 155 (1936).
See ABA Opinion 177 (1938).
"[A lawyer] may not divulge confidential communications, information, and secrets imparted to him by the
client or acquired during their professional relations, unless he is authorized to do so by the client (People v. Gerold, 265 Ill. 448, 107 N.E. 165, 178; Murphy v. Riggs, 238
Mich. 151, 213 N.W. 110, 112; Opinion of this Committee,
No. 91)." ABA Opinion 202 (1940).
Cf. ABA Opinion 91 (1933).
14
17
See ABA Canon 37 and ABA Opinion 202 (1940).
18
Cf. ABA Opinion 250 (1943).
See ABA Canon 37 and ABA Opinions 202 (1940) and
19 (1930).
"[T]he adjudicated cases recognize an exception to the
rule [that a lawyer shall not reveal the confidences of
his client], where disclosure is necessary to protect the
attorney's interests arising out of the relation of attorney
and client in which disclosure was made.
"The exception is stated in Mechem on Agency, 2d Ed.,
Vol. 2, § 2313, as follows : 'But the attorney may disclose
information received from the client when it becomes
necessary for his own protection, as if the client should
bring an action against the attorney for negligence or misconduct, and it became necessary for the attorney to
19
15 "A defendant in a criminal case when admitted to
bail is not only regarded as in the custody of his bail, but
he is also in the custody of the law, and admission to
bail does not deprive the court of its inherent power to
deal with the person of the prisoner. Being in lawful
custody, the defendant is guilty of an escape when he
gains his liberty before he is delivered in due process of
law, and is guilty of a separate offense for which he may
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CODE OF PROFESSIONAL RESPONSIBILITY
personal interests, the interests of other clients,
nor the desires of third persons should be permitted to dilute his loyalty to his client.
CANON 5
A Lawyer Should Exercise Independent
Professional Judgment on Behalf
of a Client
Interests of a Lawyer That May Affect His Judgment
EC 5-2 A lawyer should not accept proffered
ETHICAL CONSIDERATIONS
EC 5-1 The professional judgment of a lawyer
should be exercised, within the bounds of the law,
solely for the benefit of his client and free of compromising influences and loyalties. 1 Neither his
show what his instructions were, or what was the nature
of the duty which the client expected him to perform.
So if it became necessary for the attorney to bring an action against the client, the client's privilege could not prevent the attorney from disclosing what was essential as
a means of obtaining or defending his own rights.'
"Mr. Jones, in his Commentaries on Evidence, 2d Ed.,
Vol. 5, § 2165, states the exception thus : 'It has frequently
been held that the rule as to privileged communications
does not apply when litigation arises between attorney and
client to the extent that their communications are relevant
to the issue. In such cases, if the disclosure of privileged
communications becomes necessary to protect the attorney's
rights, he is released from those obligations of secrecy
which the law places upon him. He should not, however,
disclose more than is necessary for his own protection. It
would be a manifest injustice to allow the client to take advantage of the rule of exclusion as to professional confidence to the prejudice of his attorney, or that it should.
be carried to the extent of depriving the attorney of the
means of obtaining or defending his own rights. In such
cases the attorney is exempted from the obligations of
secrecy.' " ABA Opinion 250 (1943).
1
Cf. ABA Canon 35.
"[A lawyer's] fiduciary duty is of the highest order
and he must not represent interests adverse to those of
the client. It is also true that because of his professional
responsibility and the confidence and trust which his
client may legitimately repose in him, he must adhere to a
high standard of honesty, integrity and good faith in dealing with his client. He is not permitted to take advantage
of his position or superior knowledge to impose upon the
client; nor to conceal facts or law, nor in any way deceive
him without being held responsible therefor." Smoot v.
Lund, 13 Utah 2d 168, 172, 369 P.2d 933, 936 (1962).
"When a client engages the services of a lawyer in a
given piece of business he is entitled to feel that, until
that business is finally disposed of in some manner, he
has the undivided loyalty of the one upon whom he looks
as his advocate and champion. If, as in this case, he is
sued and his home attached by his own attorney, who is
representing him in another matter, all feeling of loyalty
is necessarily destroyed, and the profession is exposed to
the charge that it is interested only in money." Grievance
Comm. v. Rattner, 152 Conn. 59, 65, 203 A.2d 82, 84
(1964).
"One of the cardinal principles confronting every attorney in the representation of a client is the requirement of
complete loyalty and service in good faith to the best of
his ability. In a criminal case the client is entitled to
a fair trial, but not a perfect one. These are fundamental
requirements of due process under the Fourteenth Amendment. . . . The same principles are applicable in
Sixth Amendment cases (not pertinent herein) and suggest that an attorney should have no conflict of interest
and that he must devote his full and faithful efforts toward the defense of his client." Johns v. Smyth, 176
F.Supp. 949, 952 (E.D.Va.1959), modified, United States
ex rel. Wilkins v. Banmiller, 205 F.Supp. 123, 128 n. 5
(E.D.Pa.1962), aff'd, 325 F.2d 514 (3d Cir. 1963), cert. denied, 379 U.S. 847, 13 L.Ed.2d 51, 85 S.Ct. 87 (1964).
employment if his personal interests or desires
will, or there is a reasonable probability that they
will, affect adversely the advice to be given or
services to be rendered the prospective client.2
After accepting employment, a lawyer carefully
should refrain from acquiring a property right or
assuming a position that would tend to make his
judgment less protective of the interests of his
client.
EC 5-3 The self-interest of a lawyer resulting
from his ownership of property in which his client
also has an interest or which may affect property
of his client may interfere with the exercise of
free judgment on behalf of his client. If such interference would occur with respect to a prospective client, a lawyer should decline employment
proffered by him. After accepting employment, a
lawyer should not acquire property rights that
would adversely affect his professional judgment
in the representation of his client. Even if the
property interests of a lawyer do not presently interfere with the exercise of his independent judgment, but the likelihood of interference can reasonably be foreseen by him, a lawyer should explain the situation to his client and should decline
employment or withdraw unless the client consents to the continuance of the relationship after
full disclosure. A lawyer should not seek to persuade his client to permit him to invest in an undertaking of his client nor make improper use of
his professional relationship to influence his client
to invest in an enterprise in which the lawyer is
interested.
EC 5-4 If, in the course of his representation of
a client, a lawyer is permitted to receive from his
client a beneficial ownership in publication rights
relating to the subject matter of the employment,
he may be tempted to subordinate the interests
of his client to his own anticipated pecuniary gain.
2 "Attorneys must not allow their private interests to
conflict with those of their clients. . . . They owe
their entire devotion to the interests of their clients."
United States v. Anonymous, 215 F.Supp. 111, 113 (E.D.
Tenn.1963).
"[T]he court [below] concluded that a firm may not accept any action against a person whom they are presently
representing even though there is no relationship between
the two cases. In arriving at this conclusion, the court
cited an opinion of the Committee on Professional Ethics
of the New York County Lawyers' Association which
stated in part : 'While under the circumstances * * *
there may be no actual conflict of interest * * * "maintenance of public confidence in the Bar requires an attorney who has accepted representation of a client to
decline, while representing such client, any employment
from an adverse party in any matter even though wholly
unrelated to the original retainer." See Question and.
Answer No. 350, N.Y. County L. Ass'n, Questions and Answer No. 450 (June 21, 1956).' " Grievance Comm. v.
Rattner, 152 Conn. 59, 65, 203 A.2d 82, 84 (1964).
XLI
CODE OF PROFESSIONAL RESPONSIBILITY
For example, a lawyer in a criminal case who obtains from his client television, radio, motion picture, newspaper, magazine, book, or other publication rights with respect to the case may be influenced, consciously or unconsciously, to a course of
conduct that will enhance the value of his publication rights to the prejudice of his client. To prevent these potentially differing interests, such arrangements should be scrupulously avoided prior
to the termination of all aspects of the matter giving rise to the employment, even though his employment has previously ended.
EC 5-5 A lawyer should not suggest to his client
that a gift be made to himself or for his benefit.
If a lawyer accepts a gift from his client, he is
peculiarly susceptible to the charge that he unduly
influenced or overreached the client. If a client
voluntarily offers to make a gift to his lawyer, the
lawyer may accept the gift, but before doing so, he
should urge that his client secure disinterested advice from an independent, competent person who is
cognizant of all the circumstances. 3 Other than in
exceptional circumstances, a lawyer should insist
that an instrument in which his client desires to
name him beneficially be prepared by another lawyer selected by the client.4
EC 5-6 A lawyer should not consciously influence a client to name him as executor, trustee, or
lawyer in an instrument. In those cases where a
client wishes to name his lawyer as such, care
should be taken by the lawyer to avoid even the
appearance of impropriety.5
EC 5-7 The possibility of an adverse effect upon
the exercise of free judgment by a lawyer on behalf of his client during litigation generally makes
it undesirable for the lawyer to acquire a proprietary interest in the cause of his client or otherwise
3
"Courts of equity will scrutinize with jealous vigilance
transactions between parties occupying fiduciary relations
toward each other. . . . A deed will not be held invalid, however, if made by the grantor with full knowledge of its nature and effect, and because of the deliberate,
voluntary and intelligent desire of the grantor. . . .
Where a fiduciary relation exists, the burden of proof is
on the grantee or beneficiary of an instrument executed
during the existence of such relationship to show the fairness of the transaction, that it was equitable and just
and that it did not proceed from undue influence. . . .
The same rule has application where an attorney engages
in a transaction with a client during the existence of the
relation and is benefited thereby. . . . Conversely,
an attorney is not prohibited from dealing with his client or
buying his property, and such contracts, if open, fair and
honest, when deliberately made, are as valid as contracts
between other parties. . • . [I]mportant factors in
determining whether a transaction is fair include a showing by the fiduciary (1) that he made a full and frank
disclosure of all the relevant information that he had ;
(2) that the consideration was adequate ; and (3) that the
principal had independent advice before completing the
transaction." McFall v. Braden, 19 I11.2d 108, 117-18, 166
N.E.2d 46, 52 (1960).
4 See State ex rel. Nebraska State Bar Ass'n v. Richards,
165 Neb. 80, 94-95, 84 N.W.2d 136, 146 (1957).
See ABA Canoe 9.
to become financially interested in the outcome of
the litigation. 6 However, it is not improper for a
lawyer to protect his right to collect a fee for his
services by the assertion of legally permissible
liens, even though by doing so he may acquire an
interest in the outcome of litigation. Although a
contingent fee arrangement 7 gives a lawyer a
financial interest in the outcome of litigation, a
reasonable contingent fee is permissible in civil
cases because it may be the only means by which
a layman can obtain the services of a lawyer of
his choice. But a lawyer, because he is in a better
position to evaluate a cause of action, should enter
into a contingent fee arrangement only in those
instances where the arrangement will be beneficial
to the client.
EC 5-8 A financial interest in the outcome of litigation also results if monetary advances are made
by the lawyer to his client. 8 Although this assistance generally is not encouraged, there are instances when it is not improper to make loans to
a client. For example, the advancing or guaranteeing of payment of the costs and expenses of litigation by a lawyer may be the only way a client can
enforce his cause of action, 9 but the ultimate liability for such costs and expenses must be that
of the client.
EC 5-9 Occasionally a lawyer is called upon to
decide in a particular case whether he will be a
witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective
witness. Conversely, the opposing counsel may
be handicapped in challenging the credibility of the
lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of
arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the
cause of another, while that of a witness is to state
facts objectively.
EC 5-10 Problems incident to the lawyer-witness
relationship arise at different stages; they relate
6
See ABA Canon 10.
7
See Code of Professional Responsibility, EC 2-20.
8 See ABA Canon 42.
9
"Rule 3a. . . . A member of the State Bar shall
not directly or indirectly pay or agree to pay, or represent or sanction the representation that he will pay, medical, hospital or nursing bills or other personal expenses
incurred by or for a client, prospective or existing ; provided this rule shall not prohibit a member
"(1) with the consent of the client, from paying or
agreeing to pay to third persons such expenses from funds
collected or to be collected for the client; or
(2) after he has been employed, from lending money to
his client upon the client's promise in writing to repay
such loan; or
(3) from advancing the costs of prosecuting or defending a claim or action. Such costs within the meaning of
this subparagraph (3) include all taxable costs or disbursements, costs or investigation and costs of obtaining and
presenting evidence." Cal. Business and Professions Code
§ 6076 (West Supp.1967).
XLII
CODE OF PROFESSIONAL RESPONSIBILITY
either to whether a lawyer should accept employment or should withdraw from employment. 10 Regardless of when the problem arises, his decision
is to be governed by the same basic considerations.
It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely
that he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue.11
In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse
employment or to withdraw when he will likely
be a witness on a contested issue, he may serve as
advocate even though he may be a witness. 12 In
making such decision, he should determine the personal or financial sacrifice of the client that may
result from his refusal of employment or withdrawal therefrom, the materiality of his testimony,
and the effectiveness of his representation in view
of his personal involvement. In weighing these
factors, it should be clear that refusal or withdrawal will impose an unreasonable hardship upon
the client before the lawyer accepts or continues
the employment. 13 Where the question arises,
doubts should be resolved in favor of the lawyer
testifying and against his becoming or continuing
as an advocate.'4
3.0 " When a lawyer knows, prior to trial, that he will
be a necessary witness, except as to merely formal matters such as identification or custody of a document or
the like, neither he nor his firm or associates should conduct the trial. If, during the trial, he discovers that the
ends of justice require his testimony, he should, from that
point on, if feasible and not prejudicial to his client's
case, leave further conduct of the trial to other counsel.
If circumstances do not permit withdrawal from the conduct of the trial, the lawyer should not argue the credibility of his own testimony." A Code of Trial Conduct:
Promulgated by the American College of Trial Lawyers,
43 A.B.A.J. 223, 224-25 (1957).
11 Cf. Canon 19 : "When a lawyer is a witness for his
client, except as to merely formal matters, such as the
attestation or custody of an instrument and the like, he
should leave the trial of the case to other counsel."
12 "It is the general rule that a lawyer may not testify
in litigation in which he is an advocate unless circumstances arise which could not be anticipated and it is
necessary to prevent a miscarriage of justice. In those rare
cases where the testimony of an attorney is needed to
protect his client's interests, it is not only proper but
mandatory that it be forthcoming." Schwartz v. Wenger,
267 Minn. 40, 43-44, 124 N.W.2d 489, 492 (1963).
"The great weight of authority in this country holds
that the attorney who acts as counsel and witness, in behalf of his client, in the same cause on a material matter,
not of a merely formal character, and not in an emergency,
but having knowledge that he would be required to be a
witness in ample time to have secured other counsel and
given up his service in the case, violates a highly important provision of the Code of Ethics and a rule of
professional conduct, but does not commit a legal error
in so testifying, as a result of which a new trial will be
granted." Erwin M. Jennings Co. v. DiGenova, 107
Conn. 491, 499, 141 A. 866, 869 (1928).
13
14 "[C]ases may arise, and in practice often do arise, in
which there would be a failure of justice should the attorney withhold his testimony. in such a case it would
be a vicious professional sentiment which would deprive
EC 5-11 A lawyer should not permit his personal
interests to influence his advice relative to a suggestion by his client that additional counsel be
employed. 15 In like manner, his personal interests
should not deter him from suggesting that additional counsel be employed; on the contrary, he
should be alert to the desirability of recommending additional counsel when, in his judgment, the
proper representation of his client requires it.
However, a lawyer should advise his client not to
employ additional counsel suggested by the client
if the lawyer believes that such employment would
be a disservice to the client, and he should disclose the reasons for his belief.
EC 5-12 Inability of co-counsel to agree on a matter vital to the representation of their client requires that their disagreement be submitted by
them jointly to their client for his resolution, and
the decision of the client shall control the action
to be taken.16
EC 5-13 A lawyer should not maintain membership in or be influenced by any organization of
employees that undertakes to prescribe, direct, or
suggest when or how he should fulfill his professional obligations to a person or organization
that employs him as a lawyer. Although it is not
necessarily improper for a lawyer employed by a
corporation or similar entity to be a member of
an organization of employees, he should be vigilant to safeguard his fidelity as a lawyer to his
employer, free from outside influences.
Interests of Multiple Clients
EC 5-14 Maintaining the independence of professional judgment required of a lawyer precludes
his acceptance or continuation of employment that
will adversely affect his judgment on behalf of or
dilute his loyalty to a client. 17 This problem arises
whenever a lawyer is asked to represent two or
more clients who may have differing interests,
whether such interests be conflicting, inconsistent,
diverse, or otherwise discordant.18
EC 5-15 If a lawyer is requested to undertake or
to continue representation of multiple clients having potentially differing interests, he must weigh
carefully the possibility that his judgment may be
impaired or his loyalty divided if he accepts or
the client of the benefit of his attorney's testimony." Connolly v. Straw, 53 Wis. 645, 649, 11 N.W. 17, 19 (1881).
But see Canon 19: "Except when essential to the ends of
justice, a lawyer should avoid testifying in court in behalf of his client."
15
Cf. ABA Canon 7.
16
See ABA Canon 7.
17
See ABA Canon 6; cf. ABA Opinions 261 (1944), 242
(1942), 142 (1935), and 30 (1931).
18 The ABA Canons speak of "conflicting interests"
rather than "differing interests" but make no attempt to
define such other than the statement in Canon 6: "Within
the meaning of this canon, a lawyer represents conflicting
interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him
to oppose."
XLIII
CODE OF PROFESSIONAL RESPONSIBILITY
continues the employment. He should resolve all
doubts against the propriety of the representation.
A lawyer should never represent in litigation multiple clients with differing interests, 19 and there
are few situations in which he would be justified
in representing in litigation multiple clients with
potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, he would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason
it is preferable that he refuse the employment initially. On the other hand, there are many instances in which a lawyer may properly serve multiple clients having potentially differing interests
in matters not involving litigation. If the interests vary only slightly, it is generally likely that
the lawyer will not be subjected to an adverse
influence and that he can retain his independent
judgment on behalf of each client; and if the interests become differing, withdrawal is less likely
to have a disruptive effect upon the causes of his
clients.
EC 5-16 In those instances in which a lawyer is
justified in representing two or more clients having differing interests, it is nevertheless essential
that each client be given the opportunity to evaluate his need for representation free of any potential conflict and to obtain other counsel if he so
desires. 20 Thus before a lawyer may represent
multiple clients, he should explain fully to each
client the implications of the common representation and should accept or continue employment
only if the clients consent. 21 If there are present
other circumstances that might cause any of the
multiple clients to question the undivided loyalty
of the lawyer, he should also advise all of the
clients of those circumstances.22
EC 5-17 Typically recurring situations involving
potentially differing interests are those in which
a lawyer is asked to represent co-defendants in a
criminal case, co-plaintiffs in a personal injury
case, an insured and his insurer, 23 and beneficiaries of the estate of a decedent. Whether a lawyer can fairly and adequately protect the interests
of multiple clients in these and similar situations
depends upon an analysis of each case. In certain
circumstances, there may exist little chance of the
judgment of the lawyer being adversely affected
by the slight possibility that the interests will become actually differing; in other circumstances,
the chance of adverse effect upon his judgment is
not unlikely.
EC 5-18 A lawyer employed or retained by a corporation or similar entity owes his allegiance to
the entity and not to a stockholder, director, officer, employee, representative, or other person connected with the entity. In advising the entity, a
lawyer should keep paramount its interests and
his professional judgment should not be influenced
19
"Canon 6 of the Canons of Professional Ethics, adopted by the American Bar Association on September 30,
1937, and by the Pennsylvania Bar Association on January
7, 1938, provides in part that `It is unprofessional to
represent conflicting interests, except by express consent
of all concerned given after a full disclosure of the facts.
Within the meaning of this Canon, a lawyer represents
conflicting interests when, in behalf of one client, it is
his duty to contend for that which duty to another client
requires him to oppose.' The full disclosure required by
this canon contemplates that the possibly adverse effect
of the conflict be fully explained by the attorney to the
client to be affected and by him thoroughly understood.
"The foregoing canon applies to cases where the circumstances are such that possibly conflicting interests
may permissibly be represented by the same attorney.
But manifestly, there are instances where the conflicts
of interest are so critically adverse as not to admit of one
attorney's representing both sides. Such is the situation
which this record presents. No one could conscionably
contend that the same attorney may represent both the
plaintiff and defendant in an adversary action. Yet, that
is what is being done in this case." Jedwabny v. Philadelphia Transportation Co., 390 Pa. 231, 235, 135 A.2d 252,
254 (1957), cert. denied, 355 U.S. 966, 2 L.Ed.2d 541, 78
S.Ct. 557 (1958).
20 "Glasser wished the benefit of the undivided assistance of counsel of his own choice. We think that such a
desire on the part of an accused should be respected. Irrespective of any conflict of interest, the additional burden
of representing another party may conceivably impair
counsel's effectiveness.
"To determine the precise degree of prejudice sustained.
by Glasser as a result of the court's appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel Is too
fundamental and absolute to allow courts to indulge in
nice calculations as to the amount of prejudice arising from
its denial." Glasser v. United States, 315 U.S. 60, 75-76,
86 L.Ed. 680, 702 S.Ct. 457, 467 (1942).
21
See ABA Canon 6.
22
Id.
Cf. ABA Opinion 282 (1950).
"When counsel, although paid by the casualty company,
undertakes to represent the policyholder and files his notice of appearance, he owes to his client, the assured, an
undeviating and single allegiance. His fealty embraces the
requirement to produce in court all witnesses, fact and
expert, who are available and necessary for the proper
protection of the rights of his client. . . .
" . . . The Canons of Professional Ethics make it
pellucid that there are not two standards, one applying
to counsel privately retained by a client, and the other
to counsel paid by an insurance carrier." American Employers Ins. Co. v. Goble Aircraft Specialties, 205 Misc.
1066, 1075, 131 N.Y.S.2d 393, 401 (1954), motion to withdraw appeal granted, 1 App.Div.2d 1008, 154 N.Y.S.2d
835 (1956).
"[C]ounsel, selected by State Farm to defend Dorothy
Walker's suit for $50,000 damages, was apprised by Walker
that his earlier version of the accident was untrue and
that actually the accident occurred because he lost control of his car in passing a Cadillac just ahead. At that
point, Walker's counsel should have refused to participate
further in view of the conflict of interest between Walker
and State Farm. . . . Instead he participated in the
ensuing deposition of the Walkers, even took an ex parte
sworn statement from Mr. Walker in order to advise
State Farm what action it should take, and later used the
statement against Walker in the District Court. This action appears to contravene an Indiana attorney's duty `at
every peril to himself, to preserve the secrets of his client'
. . .." State Farm Mut. Auto Ins. Co. v. Walker, 382
F.2d 548, 552 (1967), cert. denied, 389 U.S. 1045, 19 L.Ed.
2d 837, 88 S.Ct. 789 (1968).
XLIV
23
CODE OF PROFESSIONAL RESPONSIBILITY
by the personal desires of any person or organization. Occasionally a lawyer for an entity is requested by a stockholder, director, officer, employee, representative, or other person connected
with the entity to represent him in an individual
capacity; in such case the lawyer may serve the
individual only if the lawyer is convinced that differing interests are not present.
EC 5-19 A lawyer may represent several clients
whose interests are not actually or potentially differing. Nevertheless, he should explain any circumstances that might cause a client to question
his undivided loyalty. 24 Regardless of the belief
of a lawyer that he may properly represent multiple clients, he must defer to a client who holds
the contrary belief and withdraw from representation of that client.
EC 5-20 A lawyer is often asked to serve as an
impartial arbitrator or mediator in matters which
involve present or former clients. He may serve
in either capacity if he first discloses such present
or former relationships. After a lawyer has undertaken to act as an impartial arbitrator or mediator, he should not thereafter represent in the
dispute any of the parties involved.
Desires of Third Persons
EC 5-21 The obligation of a lawyer to exercise
professional judgment solely on behalf of his client
requires that he disregard the desires of others
that might impair his free judgment. 25 The desires of a third person will seldom adversely affect a lawyer unless that person is in a position
to exert strong economic, political, or social pressures upon the lawyer. These influences are often
subtle, and a lawyer must be alert to their existence. A lawyer subjected to outside pressures
should make full disclosure of them to his client; 26
and if he or his client believes that the effectiveness of his representation has been or will be impaired thereby, the lawyer should take proper
steps to withdraw from representation of his
client.
EC 5-22 Economic, political, or social pressures
by third persons are less likely to impinge upon
the independent judgment of a lawyer in a matter
24
See ABA Canon 6.
3
See ABA Canon 35.
"Objection to the intervention of a lay intermediary,
who may control litigation or otherwise interfere with
the rendering of legal services in a confidential relationship, . . . derives from the element of pecuniary gain.
Fearful of dangers thought to arise from that element,
the courts of several States have sustained regulations
aimed at these activities. We intimate no view one way or
the other as to the merits of those decisions with respect to
the particular arrangements against which they are directed. It is enough that the superficial resemblance in
form between those arrangements and that at bar cannot
obscure the vital fact that here the entire arrangement employs constitutionally privileged means of expression to secure constitutionally guaranteed civil rights." NAACP v.
Button, 371 U.S. 415, 441-42, 9 L.Ed.2d 405, 423-24, 83
S.Ct. 328, 342-43 (1963).
2
28
Cf. ABA Canon 38.
in which he is compensated directly by his client
and his professional work is exclusively with his
client. On the other hand, if a lawyer is compensated from a source other than his client, he may
feel a sense of responsibility to someone other
than his client.
EC 5-23 A person or organization that pays or
furnishes lawyers to represent others possesses a
potential power to exert strong pressures against
the independent judgment of those lawyers. Some
employers may be interested in furthering their
own economic, political, or social goals without regard to the professional responsibility of the lawyer to his individual client. Others may be far
more concerned with establishment or extension
of legal principles than in the immediate protection of the rights of the lawyer's individual client.
On some occasions, decisions on priority of work
may be made by the employer rather than the
lawyer with the result that prosecution of work
already undertaken for clients is postponed to
their detriment. Similarly, an employer may seek,
consciously or unconsciously, to further its own
economic interests through the actions of the lawyers employed by it. Since a lawyer must always
be free to exercise his professional judgment without regard to the interests or motives of a third
person, the lawyer who is employed by one to represent another must constantly guard against erosion of his professional freedom.27
EC 5-24 To assist a lawyer in preserving his professional independence, a number of courses are
available to him. For example, a lawyer should
not practice with or in the form of a professional
legal corporation, even though the corporate form
is permitted by law, 28 if any director, officer, or
stockholder of it is a non-lawyer. Although a lawyer may be employed by a business corporation
with non-lawyers serving as directors or officers,
and they necessarily have the right to make decisions of business policy, a lawyer must decline
to accept direction of his professional judgment
from any layman. Various types of legal aid of27
"Certainly it is true that 'the professional relationship between an attorney and his client is highly personal,
involving an intimate appreciation of each individual
client's particular problem.' And this Committee does
not condone practices which interfere with that relationship. However, the mere fact the lawyer is actually paid
by some entity other than the client does not affect that
relationship, so long as the lawyer is selected by and is
directly responsible to the client. See Informal Opinions
469 and 679. Of course, as the latter decision points out,
there must be full disclosure of the arrangement by the
attorney to the client. . .
" ABA Opinion 320 (1968).
"[A] third party may pay the cost of legal services as
long as control remains in the client and the responsibility
of the lawyer is solely to the client. Informal Opinions 469
ad [sic] 679. See also Opinion 237." Id.
28 ABA Opinion 303 (1961) recognized that "[s]tatutory
provisions now exist in several states which are designed
to make [the practice of law in a form that will be classified as a corporation for federal income tax purposes] legally possible, either as a result of lawyers incorporating
or forming associations with various corporate characteristics."
XLV
CODE OF PROFESSIONAL RESPONSIBILITY
fices are administered by boards of directors composed of lawyers and laymen. A lawyer should
not accept employment from such an organization
unless the board sets only broad policies and there
is no interference in the relationship of the lawyer and the individual client he serves. Where a
lawyer is employed by an organization, a written
agreement that defines the relationship between
him and the organization and provides for his independence is desirable since it may serve to prevent misunderstanding as to their respective roles.
Although other innovations in the means of supplying legal counsel may develop, the responsibility of the lawyer to maintain his professional independence remains constant, and the legal profession must insure that changing circumstances
do not result in loss of the professional independence of the lawyer.
(3) If the testimony will relate solely to the
nature and value of legal services rendered in the case by the lawyer or his
firm to the client.
(4) As to any matter, if refusal would work
a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.
DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness.30
(A)
DISCIPLINARY RULES
DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
(A)
Except with the consent of his client after
full disclosure, a lawyer shall not accept employment if the exercise of his professional
judgment on behalf of his client will be or
reasonably may be affected by his own financial, business, property, or personal interests.29
(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows
or it is obvious that he or a lawyer in his firm
ought to be called as a witness, except that
he may undertake the employment and he or
a lawyer in his firm may testify:
(1) If the testimony will relate solely to an
uncontested matter.
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns
or it is obvious that he or a lawyer in his
firm may be called as a witness other than
on behalf of his client, he may continue the
representation until it is apparent that his
testimony is or may be prejudicial to his
client.31
DR 5-103 Avoiding Acquisition of Interest in Litigation.
( A) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter
of litigation he is conducting for a client,32
except that he may:
(2) If the testimony will relate solely to a
matter of formality and there is no reason to believe that substantial evidence
will be offered in opposition to the testimony.
29 Cf. ABA Canon 6 and ABA Opinions 181 (1938), 104
(1934), 103 (1933), 72 (1932), 50 (1931), 49 (1931), and 33
(1931).
"New York County [Opinion] 203. . . . [A lawyer]
should not advise a client to employ an investment company in which he is interested, without informing him of
this." Drinker, LEGAL ETHICS 956 (1953).
"In Opinions 72 and 49 this Committee held : The relations of partners in a law firm are such that neither the
firm nor any member or associate thereof, may accept
any professional employment which any member of the
firm cannot properly accept.
"In Opinion 16 this Committee held that a member of a
law firm could not represent a defendant in a criminal
case which was being prosecuted by another member of
the firm who was public prosecuting attorney. The Opinion stated that it was clearly unethical for one member
of the firm to oppose the interest of the state while another member represented those interests . . .. Since
the prosecutor himself could not represent both the public
and the defendant, no member of his law firm could
either." ABA Opinion 296 (1959).
If, after undertaking employment in contemplated or pending litigation, a lawyer learns
or it is obvious that he or a lawyer in his
firm ought to be called as a witness on behalf
of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not
continue representation in the trial, except
that he may continue the representation and
he or a lawyer in his firm may testify in the
circumstances enumerated in DR 5-101(B)
(1) through (4).
(1) Acquire a lien granted by law to secure
his fee or expenses.
(2) Contract with a client for a reasonable
contingent fee in a civil case.33
( B) While representing a client in connection with
contemplated or pending litigation, a lawyer
shall not advance or guarantee financial as30 cf. ABA Canon 19 and ABA Opinions 220 (1941), 185
(1938), 50 (1931), and 33 (1931) ; but cf. Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 498-99, 141 A. 866,
868 (1928).
31 "This Canon [19] of Ethics needs no elaboration to
be applied to the facts here. Apparently, the object of
this precept is to avoid putting a lawyer in the obviously
embarrassing predicament of testifying and then having
to argue the credibility and effect of his own testimony.
It was not designed to permit a lawyer to call opposing
counsel as a witness and thereby disqualify him as counsel." Galarowicz v. Ward, 119 Utah 611, 620, 230 P.2d
576, 580 (1951).
32 ABA Canon 10 and ABA Opinions 279 (1949), 246
(1942), and 176 (1938).
XLVI
33
See Code of Professional Responsibility, DR 2-106(C).
CODE OF PROFESSIONAL RESPONSIBILITY
prevent prospective jurors from being impartial at
the outset of the trial 54 and may also interfere
with the obligation of jurors to base their verdict
solely upon the evidence admitted in the tria1.55
"Court proceedings are held for the solemn purpose of
endeavoring to ascertain the truth which is the sine qua
non of a fair trial. Over the centuries Anglo-American
courts have devised careful safeguards by rule and otherwise to protect and facilitate the performance of this high
function. As a result, at this time those safeguards do
not permit the televising and photographing of a criminal
trial, save in two States and there only under restrictions.
The federal courts prohibit it by specific rule. This is
weighty evidence that our concepts of a fair trial do not
tolerate such an indulgence. We have always held that
the atmosphere essential to the preservation of a fair
trial—the most fundamental of all freedoms—must be
maintained at all costs." Estes v. State of Texas, 381 U.S.
532, 540, 14 L.Ed.2d 543, 549, 85 S.Ct. 1628, 1631-32 (1965),
rehearing denied, 382 U.S. 875, 15 L.Ed.2d 118, 86 S.Ct. 18
(1965).
54 "Pretrial can create a major problem for the defendant in a criminal case. Indeed, it may be more harmful
than publicity during the trial for it may well set the community opinion as to guilt or innocence. . . . The
trial witnesses present at the hearing, as well as the
original jury panel, were undoubtedly made aware of the
peculiar public importance of the case by the press and
television coverage being provided, and by the fact that
they themselves were televised live and their pictures rebroadcast on the evening show." Id., 381 U.S. at 536-37,
14 L.Ed.2d at 546-47, 85 S.Ct. at 1629-30.
55
"The undeviating rule of this Court was expressed by
Mr. Justice Holmes over half a century ago in Patterson
v. Colorado, 205 U.S. 454, 462 (1907) :
The theory of our system is that the conclusions to be
reached in a case will be induced only by evidence and
argument in open court, and not by any outside influence, whether of private talk or public print."
Sheppard v. Maxwell, 384 U.S. 333, 351, 16 L.Ed.2d 600,
614, 86 S.Ct. 1507, 1516 (1966).
"The trial judge has a large discretion in ruling on the
issue of prejudice resulting from the reading by jurors
of news articles concerning the trial. . . . Generalizations beyond that statement are not profitable, because
each case must turn on its special facts. We have here
the exposure of jurors to information of a character which
the trial judge ruled was so prejudicial it could not be
directly offered as evidence. The prejudice to the defendant is almost certain to be as great when that evidence
reaches the jury through news accounts as when it is a part
of the prosecution's evidence. . . . It may indeed be
greater for it is then not tempered by protective procedures." Marshall v. United States, 360 U.S. 310, 312-13,
3 L.Ed.2d 1250, 1252, 79 S.Ct. 1171, 1173 (1959).
"The experienced trial lawyer knows that an adverse
public opinion is a tremendous disadvantage to the defense of his client. Although grand jurors conduct their
deliberations in secret, they are selected from the body
of the public. They are likely to know what the general
public knows and to reflect the public attitude. Trials
are open to the public, and aroused public opinion respecting the merits of a legal controversy creates a court room
atmosphere which, without any vocal expression in the
presence of the petit jury, makes itself felt and has its
effect upon the action of the petit jury. Our fundamental
concepts of justice and our American sense of fair play
require that the petit jury shall be composed of persons
with fair and impartial minds and without preconceived
views as to the merits of the controversy, and that it shall
determine the issues presented to it solely upon the evidence adduced at the trial and according to the law given
in the instructions of the trial judge.
The release by a lawyer of out-of-court statements
regarding an anticipated or pending trial may improperly affect the impartiality of the tribunal.56
For these reasons, standards for permissible and
prohibited conduct of a lawyer with respect to trial
publicity have been established.
EC 7-34 The impartiality of a public servant in
our legal system may be impaired by the receipt
of gifts or loans. A lawyer, 57 therefore, is never
justified in making a gift or a loan to a judge,
a hearing officer, or an official or employee of a
tribunal.58
EC 7-35 All litigants and lawyers should have access to tribunals on an equal basis. Generally, in
adversary proceedings a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a
tribunal over which he presides in circumstances
which might have the effect or give the appearance of granting undue advantage to one party.59
For example, a lawyer should not communicate
with a tribunal by a writing unless a copy thereof
is promptly delivered to opposing counsel or to
the adverse party if he is not represented by a
lawyer. Ordinarily an oral communication by a
lawyer with a judge or hearing officer should be
made only upon adequate notice to opposing counsel, or, if there is none, to the opposing party. A.
lawyer should not condone or lend himself to private importunities by another with a judge or
hearing officer on behalf of himself or his client.
EC 7-36 Judicial hearings ought to be conducted
through dignified and orderly procedures designed
to protect the rights of all parties. Although a
lawyer has the duty to represent his client zealous"While we may doubt that the effect of public opinion
would sway or bias the judgment of the trial judge in an
equity proceeding, the defendant should not be called upon
to run that risk and the trial court should not have his
work made more difficult by any dissemination of statements to the public that would be calculated to create a
public demand for a particular judgment in a prospective
or pending case." ABA Opinion 199 (1940).
Cf. Estes v. State of Texas, 381 U.S. 532, 544-45, 14 L.
Ed.2d 543, 551, 85 S.Ct. 1628, 1634 (1965), rehearing denied,
381 U.S. 875, 15 L.Ed.2d 118, 86 S.Ct. 18 (1965).
56
See ABA Canon 20.
Canon 3 observes that a lawyer "deserves rebuke and
denunciation for any device or attempt to gain from a
Judge special personal consideration or favor."
See ABA Canon 32.
57
58
"Judicial Canon 32 provides :
" 'A judge should not accept any presents or favors
from litigants, or from lawyers practicing before him or
from others whose interests are likely to be submitted to
him for judgment.'
"The language of this Canon is perhaps broad enough
to prohibit campaign contributions by lawyers, practicing
before the court upon which the candidate hopes to sit.
However, we do not think it was intended to prohibit
such contributions when the candidate is obligated, by
force of circumstances over which he has no control, to
conduct a campaign, the expense of which exceeds that
which he should reasonably be expected to personally
bear!" ABA Opinion 226 (1941).
LVII
59
See ABA Canons 3 and 32.
CODE OF PROFESSIONAL RESPONSIBILITY
ly, he should not engage in any conduct that offends the dignity and decorum of proceedings.60
While maintaining his independence, a lawyer
should be respectful, courteous, and above-board
in his relations with a judge or hearing officer before whom he appears. 61 He should avoid undue
solicitude for the comfort or convenience of judge
or jury and should avoid any other conduct calculated to gain special consideration.
with courtesy and consideration all persons involved in the legal process.
(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw
as permitted under DR 2-110, DR 5-102,
and DR 5-105.
(3) Prejudice or damage his client during the
course of the professional relationship 68
except as required under DR 7-102(B).
EC 7-37 In adversary proceedings, clients are
litigants and though ill feeling may exist between
clients, such ill feeling should not influence a lawyer in his conduct, attitude, and demeanor towards
opposing lawyers. 62 A lawyer should not make
unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics
by lawyers interfere with the orderly administration of justice and have no proper place in our
legal system.
EC 7-38 A lawyer should be courteous to opposing counsel and should accede to reasonable
requests regarding court proceedings, settings,
continuances, waiver of procedural formalities, and
similar matters which do not prejudice the rights
of his client. 63 He should follow local customs
of courtesy or practice, unless he gives timely notice to opposing counsel of his intention not to do
so. 64 A lawyer should be punctual in fulfilling
all professional commitments.65
EC 7-39 In the final analysis, proper functioning
of the adversary system depends upon cooperation between lawyers and tribunals in utilizing procedures which will preserve the impartiality of
tribunals and make their decisional processes
prompt and just, without impinging upon the obligation of lawyers to represent their clients zealously within the framework of the law.
DISCIPLINARY RULES
DR 7-101 Representing a Client Zealously.
( A) A lawyer shall not intentionally: 66
(1) Fail to seek the lawful objectives of his
client through reasonably available
means 67 permitted by law and the Disciplinary Rules, except as provided by
DR 7-101(B). A lawyer does not violate
this Disciplinary Rule, however, by acceding to reasonable requests of opposing
counsel which do not prejudice the rights
of his client, by being punctual in fulfilling all professional commitments, by
avoiding offensive tactics, or by treating
( B) In his representation of a client, a lawyer
may:
(1) Where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client.
(2) Refuse to aid or participate in conduct
that he believes to be unlawful, even
though there is some support for an argument that the conduct is legal.
DR 7-102 Representing a Client Within the
Bounds of the Law.
( A) In his representation of a client, a lawyer
shall not:
(1) File a suit, assert a position, conduct a
defense, delay a trial, or take other action on behalf of his client when he knows
or when it is obvious that such action
would serve merely to harass or maliciously injure another.69
(2) Knowingly advance a claim or defense
that is unwarranted under existing law,
except that he may advance such claim
or defense if it can be supported by good
faith argument for an extension, modification, or reversal of existing law.
(3) Conceal or knowingly fail to disclose that
which he is required by law to reveal.
(4) Knowingly use perjured testimony or
false evidence.70
(5) Knowingly make a false statement of law
or fact.
(6) Participate in the creation or preservation
of evidence when he knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct
that the lawyer knows to be illegal or
fraudulent.
(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.
60
Cf. ABA Canon 18.
61
See ABA Canons 1 and 3.
62
See ABA Canon 17.
63
See ABA Canon 24.
64
See ABA Canon 25.
05
See ABA Canon 21.
68
Cf. ABA Canon 24.
66
See ABA Canon 15.
69
sel ABA Canon 30.
67
See ABA Canons 5 and 15 cf. ABA Canons 4 and 32.
70
Cf. ABA Canons 22 and 29.
( B) A lawyer who receives information clearly
establishing that:
(1) His client has, in the course of the representation, perpetrated a fraud upon a
person or tribunal shall promptly call
LVIII
CODE OF PROFESSIONAL RESPONSIBILITY
upon his client to rectify the same, and
if his client refuses or is unable to do so,
he shall reveal the fraud to the affected
person or tribunal:a
vice to secure counsel, 76 if the interests
of such person are or have a reasonable
possibility of being in conflict with the
interests of his client.77
(2) A person other than his client has perpetrated a fraud upon a tribunal shall
promptly reveal the fraud to the tribunal 12
DR 7-105 Threatening Criminal Prosecution.
( A) A lawyer shall not present, participate in presenting, or theaten to present criminal charges solely to obtain an advantage in a civil
matter.
DR 7-103 Performing the Duty of Public Prosecutor or Other Government Lawyer.73
(A) A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it
is obvious that the charges are not supported
by probable cause.
DR 7-106 Trial Conduct.
(A) A lawyer shall not disregard or advise his
client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the
course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.
(B) A public prosecutor or other government lawyer in criminal litigation shall make timely
disclosure to counsel for the defendant, or
to the defendant if he has no counsel, of the
existence of evidence, known to the prosecutor or other government lawyer, that tends
to negate the guilt of the accused, mitigate
the degree of the offense, or reduce the punishment.
DR 7-104 Communicating With One of Adverse
Interest.74
( A) During the course of his representation of a
client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party 75 or is
authorized by law to do so.
Give
advice to a person who is not rep(2)
resented by a lawyer, other than the ad71 See ABA Canon 41; cf. Hinds v. State Bar, 19 Ca1.2d
87, 92-93, 119 P.2d 134, 137 (1941) ; but see ABA Opinion
287 (1953) and Texas Canon 38. Also see Code of Professional Responsibility, DR 4-101(C) (2).
72 See Precision Inst. Mfg. Co. v. Automotive M. M. Co.,
324 U.S. 806, 89 L.Ed. 1381, 65 S.Ct. 993 (1945).
73
Cf. ABA Canon 5.
74 "Rule 12. . . . A member of the State Bar shall
not communicate with a party represented by counsel upon a subject of controversy, in the absence and without
the consent of such counsel. This rule shall not apply
to communications with a public officer, board, committee
or body." Cal.Business and Professions Code § 6076 (West
1962).
75
See ABA Canon 9; cf. ABA Opinions 124 (1934), 108
(1934), 95 (1933), and 75 (1932) ; also see In re Schwabe,
242 Or. 169, 174-75, 408 P.2d 922, 924 (1965).
"It is clear from the earlier opinions of this committee
that Canon 9 is to be construed literally and does not allow a communication with an opposing party, without the
consent of his counsel, though the purpose merely be to
investigate the facts. Opinions 117, 95, 66," ABA Opinion
187 (1938).
(B) In presenting a matter to a tribunal, a lawyer shall disclose: 78
(1) Legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and
which is not disclosed by opposing cotmse1.79
(2) Unless privileged or irrelevant, the identities of the clients he represents and of
the persons who employed him 80
76
Cf. ABA Opinion 102 (1933).
77
Cf. ABA Canon 9 and ABA Opinion 58 (1931).
78
Cf. Note, 38 Texas L.Rev. 107, 108-09 (1959).
79
"In the brief summary in the 1947 edition of the Committee's decisions (p. 17), Opinion 146 was thus summarized : Opinion 146—A lawyer should disclose to the
court a decision directly adverse to his client's case that is
unknown to his adversary.
"We would not confine the Opinion to 'controlling authorities'—i.e., those decisive of the pending case—but, in
accordance with the tests hereafter suggested, would apply
it to a decision directly adverse to any proposition of law
on which the lawyer expressly relies, which would reasonably be considered important by the judge sitting on
the case.
". . . The test in every case should be: Is the decision which opposing counsel has overlooked one which the
court should clearly consider in deciding the case? Would
a reasonable judge properly feel that a lawyer who advanced, as the law, a proposition adverse to the undisclosed decision, was lacking in candor and fairness to him?
Might the judge consider himself misled by an implied
representation that the lawyer knew of no adverse authority?" ABA Opinion 280 (1949).
S0 "The authorities are substantially uniform against any
privilege as applied to the fact of retainer or identity of
the client. The privilege is limited to confidential communications, and a retainer is not a confidential communication, although it cannot come into existence without
some communication between the attorney and the—at
that stage prospective—client." United States v. Pape, 144
F.2d 778, 782 (2d Cir. 1944), cert. denied, 323 U.S. 752, 89
L.Ed.2d 602, 65 S.Ct. 86 (1944).
"To be sure, there may be circumstances under which
the identification of a client may amount to the prejudicial
disclosure of a confidential communication, as where the
LIX
CODE OF PROFESSIONAL RESPONSIBILITY
( C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
(1) State or allude to any matter that he has
no reasonable basis to believe is relevant
to the case or that will not be supported
by admissible evidence.81
(2) Ask any question that he has no reasonable basis to believe is relevant to the
case and that is intended to degrade a
witness or other person.82
(3) Assert his personal knowledge of the
facts in issue, except when testifying as
a witness.
(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a
witness, as to the culpability of a civil
litigant, or as to the guilt or innocence
of an accused; 83 but he may argue, on
his analysis of the evidence, for any position or conclusion with respect to the
matters stated herein.
(5) Fail to comply with known local customs of courtesy or practice of the bar
or a particular tribunal without giving to
opposing counsel timely notice of his intent not to comply.84
(6) Engage in undignified or discourteous
conduct which is degrading to a tribunal.
(7) Intentionally or habitually violate any established rule of procedure or of evidence.
DR 7-107 Trial Publicity.85
( A) A lawyer participating in or associated with
the investigation of a criminal matter shall
not make or participate in making an extrajudicial statement that a reasonable person
would expect to be disseminated by means
of public communication and that does more
than state without elaboration:
(1) Information contained in a public record.
(2) That the investigation is in progress.
(3) The general scope of the investigation including a description of the offense and,
if permitted by law, the identity of the
victim.
(4) A request for assistance in apprehending
a suspect or assistance in other matters
and the information necessary thereto.
(5) A warning to the public of any dangers.
( B) A lawyer or law firm associated with the
prosecution or defense of a criminal matter
shall not, from the time of the filing of a complaint, information, or indictment, the issuance of an arrest warrant, or arrest until
the commencement of the trial or disposition
substance of a disclosure has already been revealed but
not its source." Colton v. United States, 306 F.2d 633, 637
(2d Cir. 1962).
81 See ABA Canon 22; cf. ABA Canon 17.
"The rule allowing counsel when addressing the jury the
widest latitude in discussing the evidence and presenting
the client's theories falls far short of authorizing the statement by counsel of matter not in evidence, or indulging
in argument founded on no proof, or demanding verdicts
for purposes other than the just settlement of the matters
at issue between the litigants, or appealing to prejudice or
passion. The rule confining counsel to legitimate argument is not based on etiquette, but on justice. Its violation is not merely an overstepping of the bounds of propriety, but a violation of a party's rights. The jurors
must determine the issues upon the evidence. Counsel's
address should help them do this, not tend to lead them
astray." Cherry Creek Nat. Bank v. Fidelity & Cas. Co.,
207 App.Div. 787, 790-91, 202 N.Y.S. 611, 614 (1924).
Cf. ABA Canon 18.
"§ 6068. • . . It is the duty of an attorney :
82
"(f) To abstain from all offensive personality, and to
advance no fact prejudicial to the honor or reputation of
a party or witness, unless required by the justice of the
cause with which he is charged." Cal.Business and Professions Code § 6068 (West 1962).
83 "The record in the case at bar was silent concerning
the qualities and character of the deceased. It is especially
i mproper, in addressing the jury in a murder case, for
the prosecuting attorney to make reference to his knowledge of the good qualities of the deceased where there
is no evidence in the record bearing upon his character.
. . . A prosecutor should never inject into his argument evidence not introduced at the trial." People v.
Dukes, 12 I11.2d 334, 341, 146 N.E.2d 14, 17-18 (1957).
84 "A lawyer should not ignore known customs or practice of the Bar or of a particular Court, even when the
law permits, without giving timely notice to the opposing
counsel." ABA Canon 25.
85 The provisions of Sections (A), (B), (C), and (D) of
this Disciplinary Rule incorporate the fair trial-free press
standards which apply to lawyers as adopted by the ABA.
House of Delegates, Feb. 19, 1968, upon the recommendation of the Fair Trial and Free Press Advisory Committee
of the ABA Special Committee on Minimum Standards for
the Administration of Criminal Justice.
Cf. ABA Canon 20; see generally ABA Advisory Committee on Fair Trial and Free Press, Standards Relating
to Fair Trial and Free Press (1966).
"From the cases coming here we note that unfair and
prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must
take strong measures to ensure that the balance is never
weighed against the accused. And appellate tribunals
have the duty to make an independent evaluation of the
circumstances. Of course, there is nothing that prescribes
the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that
prejudicial news prior to trial will prevent a fair trial, the
judge should continue the case until the threat abates, or
transfer it to another county not so permeated with publicity. . . . The courts must take such steps by rule
and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel
for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court
should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to
regulation, but is highly censurable and worthy of disciplinary measures." Sheppard v. Maxwell, 384 U.S. 333,
362-63, 16 L.Ed.2d 600, 620, 86 S.Ct. 1507, 1522 (1966).
LX
CODE OF PROFESSIONAL RESPONSIBILITY
without trial, make or participate in making
an extrajudicial statement that a reasonable
person would expect to be disseminated by
means of public communication and that relates to:
(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the
accused.
(2) The possibility of a plea of guilty to the
offense charged or to a lesser offense.
(3) The existence or contents of any confession, admission, or statement given by
the accused or his refusal or failure to
make a statement.
(4) The performance or results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests.
(5) The identity, testimony, or credibility of
a prospective witness.
(6) Any opinion as to the guilt or innocence
of the accused, the evidence, or the merits of the case.
likely to interfere with a fair trial, except that
he may quote from or refer without comment
to public records of the court in the case.
( E) After the completion of a trial or disposition
without trial of a criminal matter and prior
to the imposition of sentence, a lawyer or law
firm associated with the prosecution or defense shall not make or participate in making
an extrajudicial statement that a reasonable
person would expect to be disseminated by
public communication and that is reasonably
likely to affect the imposition of sentence.
( C) DR 7-107(B) does not preclude a lawyer during such period from announcing:
(1) The name, age, residence, occupation, and
family status of the accused.
(2) If the accused has not been apprehended,
any information necessary to aid in his
apprehension or to warn the public of
any dangers he may present.
(3) A request for assistance in obtaining evidence.
(4) The identity of the victim of the crime.
(5) The fact, time, and place of arrest, resistance, pursuit, and use of weapons.
(6) The identity of investigating and arresting officers or agencies and the length
of the investigation.
(7) At the time of seizure, a description of
the physical evidence seized, other than
a confession, admission, or statement.
(8) The nature, substance, or text of the
charge.
(9) Quotations from or references to public
records of the court in the case.
(10) The scheduling or result of any step in
the judicial proceedings.
(11) That the accused denies the charges made
against him.
( D) During the selection of a jury or the trial of
a criminal matter, a lawyer or law firm associated with the prosecution or defense of a
criminal matter shall not make or participate
in making an extrajudicial statement that a
reasonable person would expect to be disseminated by means of public communication and
that relates to the trial, parties, or issues in
the trial or other matters that are reasonably
LXI
( F) The foregoing provisions of DR 7-107 also apply to professional disciplinary proceedings
and juvenile disciplinary proceedings when
pertinent and consistent with other law applicable to such proceedings.
( G) A lawyer or law firm associated with a civil
action shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation
from or reference to public records, that a
reasonable person would expect to be disseminated by means of public communication and
that relates to:
(1) Evidence regarding the occurrence or
transaction involved.
(2) The character, credibility, or criminal
record of a party, witness, or prospective witness.
(3) The performance or results of any examinations or tests or the refusal or
failure of a party to submit to such.
(4) His opinion as to the merits of the
claims or defenses of a party, except as
required by law or administrative rule.
(5) Any other matter reasonably likely to
interfere with a fair trial of the action.
( H) During the pendency of an administrative
proceeding, a lawyer or law firm associated
therewith shall not make or participate in
making a statement, other than a quotation
from or reference to public records, that a
reasonable person would expect to be disseminated by means of public communication if
it is made outside the official course of the
proceeding and relates to:
(1) Evidence regarding the occurrence or
transaction involved.
(2) The character, credibility, or criminal
record of a party, witness, or prospective witness.
(3) Physical evidence or the performance
or results of any examinations or tests
or the refusal or failure of a party to
submit to such.
(4) His opinion as to the merits of the
claims, defenses, or positions of an interested person.
(5) Any other matter reasonably likely to
interfere with a fair hearing.
CODE OF PROFESSIONAL RESPONSIBILITY
(I)
The foregoing provisions of DR 7-107 do not
preclude a lawyer from replying to charges
of misconduct publicly made against him or
from participating in the proceedings of legislative, administrative, or other investigative
bodies,
(B) A lawyer shall not advise or cause a person to
secrete himself or to leave the jurisdiction of
a tribunal for the purpose of making him unavailable as a witness therein.89
(C) A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a
witness contingent upon the content of his
testimony or the outcome of the case.90 But
a lawyer may advance, guarantee, or acquiesce in the payment of:
(J) A lawyer shall exercise reasonable care to prevent his employees and associates from making an extrajudicial statement that he would
be prohibited from making under DR 7-107.
DR 7-108 Communication with or Investigation
of Jurors.
(1) Expenses reasonably incurred by a witness in attending or testifying.
( A) Before the trial of a case a lawyer connected
therewith shall not communicate with or
cause another to communicate with anyone
he knows to be a member of the venire from
which the jury will be selected for the trial
of the case.
(2) Reasonable compensation to a witness
for his loss of time in attending or testifying.
(3) A reasonable fee for the professional
services of an expert witness.
( B) During the trial of a case:
(1) A lawyer connected therewith shall not
communicate with or cause another to
communicate with any member of the
jury.86
DR 7-110 Contact with Officials.91
(A)
(2) A lawyer who is not connected therewith shall not communicate with or
cause another to communicate with a
juror concerning the case.
(B) In an adversary proceeding, a lawyer shall
not communicate, or cause another to communicate, as to the merits of the cause with
a judge or an official before whom the proceeding is pending, except:
( C) DR 7-108(A) and (B) do not prohibit a lawyer from communicating with veniremen or
jurors in the course of official proceedings.
(1) In the course of official proceedings in
the cause.
( D) After discharge of the jury from further consideration of a case with which the lawyer
was connected, the lawyer shall not ask questions of or make comments to a member of
that jury that are calculated merely to harass
or embarrass the juror or to influence his actions in future jury service.87
(2) In writing if he promptly delvers a
copy of the writing to opposing counsel
or to the adverse party if he is not represented by a lawyer.
(3) Orally upon adequate notice to opposing counsel or to the adverse party if
he is not represented by a lawyer.
( E) A lawyer shall not conduct or cause, by financial support or otherwise, another to conduct
a vexatious or harassing investigation of either a venireman or a juror.
( F) All restrictions imposed by DR 7-108 upon a
lawyer also apply to communications with or
investigations of members of a family of a
venireman or a juror.
( G) A lawyer shall reveal promptly to the court
improper conduct by a venireman or a juror,
or by another toward a venireman or a juror
or a member of his family, of which the lawyer has knowledge.
( A) A lawyer shall not suppress any evidence that
he or his client has a legal obligation to reveal or produce.88
se. See ABA Canon 23.
87
"Mt would be unethical for a lawyer to harass, entice, induce or exert influence on a juror to obtain his
testimony." ABA Opinion 319 (1968).
88
See ABA Canon 5.
(4) As otherwise authorized by law.92
89
Cf. ABA Canon 5.
"Rule 15. . . . A member of the State Bar shall not
advise a person, whose testimony could establish or tend
to establish a material fact, to avoid service of process,
or secrete himself, or otherwise to make his testimony unavailable." Cal.Business and Professions Code § 6076 (West
1962).
9° See In re O'Keefe, 49 Mont. 369, 142 P. 638 (1914).
91
92
DR 7-109 Contact with Witnesses.
A lawyer shall not give or lend any thing of
value to a judge, official, or employee of a
tribunal.
Cf. ABA Canon 3.
"Rule 16. . . . A member of the State Bar shall
not, in the absence of opposing counsel, communicate with
or argue to a judge or judicial officer except in open court
upon the merits of a contested matter pending before such
judge or judicial officer ; nor shall he, without furnishing
opposing counsel with a copy thereof, address a written
communication to a judge or judicial officer concerning
the merits of a contested matter pending before such judge
or judicial officer. This rule shall not apply to ex parte
matters." Cal.Business and Professions Code § 6076 (West
1962).
LXII
CODE OF PROFESSIONAL RESPONSIBILITY
CANON 8
A Lawyer Should Assist in Improving
the Legal System
ETHICAL CONSIDERATIONS
EC 8-1 Changes in human affairs and imperfections in human institutions make necessary constant efforts to maintain and improve our legal
system.' This system should function in a manner that commands public respect and fosters the
use of legal remedies to achieve redress of grievances. By reason of education and experience,
lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein. Thus they should participate in proposing and supporting legislation
and programs to improve the system, 2 without
regard to the general interests or desires of clients
or former clients.3
EC 8-2 Rules of law are deficient if they are not
just, understandable, and responsive to the needs
of society. If a lawyer believes that the existence
or absence of a rule of law, substantive or procedural, causes or contributes to an unjust result,
he should endeavor by lawful means to obtain appropriate changes in the law. He should encourage the simplification of laws and the repeal or
amendment of laws that are outmoded. 4 Like1 . [Another] task of the great lawyer is to do
his part individually and as a member of the organized
bar to improve his profession, the courts, and the law.
As President Theodore Roosevelt aptly put it, 'Every man
owes some of his time to the upbuilding of the profession
to which he belongs.' Indeed, this obligation is one of
the great things which distinguishes a profession from a
business. The soundness and the necessity of President
Roosevelt's admonition insofar as it relates to the legal
profession cannot be doubted. The advances in natural
science and technology are so startling and the velocity of
change in business and in social life is so great that the
law along with the other social sciences, and even human
life itself, is in grave danger of being extinguished by new
gods of its own invention if it does not awake from its
lethargy. Vanderbilt, The Five Functions of the Lawyer:
Service to Clients and the Public, 40 A.B.A.J. 31, 31-32
(1954).
2
See ABA Canon 29; Cf. Cheatham, The Lawyer's Role
and Surroundings, 25 Rocky Mt.L.Rev. 405, 406-07 (1953).
"The lawyer tempted by repose should recall the heavy
costs paid by his profession when needed legal reform has
to be accomplished through the initiative of public-spirited
laymen. Where change must be thrust from without upon
an unwilling Bar, the public's least flattering picture of
the lawyer seems confirmed. The lawyer concerned for
the standing of his profession will, therefore, interest himself actively in the improvement of the law. In doing so
he will not only help to maintain confidence in the Bar,
but will have the satisfaction of meeting a responsibility
inhering in the nature of his calling." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J.
1159, 1217 (1958).
3
See Stayton, Cum Honore Off icium, 19 Tex.B.J. 765,
766 (1956) ; Professional Responsibility: Report of the
Joint Conference, 44 A.B.A.J. 1159, 1162 (1958) ; and Paul,
The Lawyer as a Tax Adviser, 25 Rocky Mt.L.Rev. 412,
433-34 (1953).
wise, legal procedures should be improved whenever experience indicates a change is needed.
EC 8-3 The fair administration of justice requires the availability of competent lawyers.
Members of the public should be educated to recognize the existence of legal problems and the resultant need for legal services, and should be provided methods for intelligent selection of counsel.
Those persons unable to pay for legal services
should be provided needed services. Clients and
lawyers should not be penalized by undue geographical restraints upon representation in legal
matters, and the bar should address itself to improvements in licensing, reciprocity, and admission
procedures consistent with the needs of modern
commerce.
EC 8-4 Whenever a lawyer seeks legislative or
administrative changes, he should identify the capacity in which he appears, whether on behalf of
himself, a client, or the public. 5 A lawyer may
advocate such changes on behalf of a client even
though he does not agree with them. But when
a lawyer purports to act on behalf of the public,
he should espouse only those changes which he
conscientiously believes to be in the public interest.
EC 8-5 Fraudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a tribunal or legislative body is inconsistent
with fair administration of justice, and it should
never be participated in or condoned by lawyers.
Unless constrained by his obligation to preserve
the confidences and secrets of his client, a lawyer
should reveal to appropriate authorities any
knowledge he may have of such improper conduct.
EC 8-6 Judges and administrative officials having adjudicatory powers ought to be persons of
integrity, competence, and suitable temperament.
Generally, lawyers are qualified, by personal observation or investigation, to evaluate the qualifications of persons seeking or being considered for
such public offices, and for this reason they have
a special responsibility to aid in the selection of
only those who are qualified. 6 It is the duty of
i mprovement of the law. The special obligation of the
profession with respect to legal reform rests on considerations too obvious to require enumeration. Certainly it is
the lawyer who has both the best chance to know when
the law is working badly and the special competence to
put it in order." Professional Responsibility: Report of
the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958).
5
"Rule 14. . . . A member of the State Bar shall
not communicate with, or appear before, a public officer,
board, committee or body, in his professional capacity,
without first disclosing that he is an attorney representing
interests that may be affected by action of such officer,
board, committee or body." Cal.Business and Professions
Code § 6076 (West 1962).
6
See ABA Canon 2.
"Lawyers are better able than laymen to appraise accurately the qualifications of candidates for judicial office. It is proper that they should make that appraisal
known to the voters in a proper and dignified manner. A
4 "There are few great figures in the history of the Bar
lawyer may with propriety endorse a candidate for judicial
who have not concerned themselves with the reform and
office and seek like endorsement from other lawyers. But
LXIII
CODE OF PROFESSIONAL RESPONSIBILITY
lawyers to endeavor to prevent political considerations from outweighing judicial fitness in the
selection of judges. Lawyers should protest earnestly against the appointment or election of those
who are unsuited for the bench and should strive
to have elected 7 or appointed thereto only those
who are willing to forego pursuits, whether of a
business, political, or other nature, that may interfere with the free and fair consideration of questions presented for adjudication. Adjudicatory officials, not being wholly free to defend themselves,
are entitled to receive the support of the bar
against unjust criticism. 8 While a lawyer as a
citizen has a right to criticize such officials publicly, 9 he should be certain of the merit of his complaint, use appropriate language, and avoid petty
criticisms, for unrestrained and intemperate statements tend to lessen public confidence in our legal
system. 19 Criticisms motivated by reasons other
than a desire to improve the legal system are not
justified.
EC 8-7 Since lawyers are a vital part of the legal
system, they should be persons of integrity, of
professional skill, and of dedication to the imthe lawyer who endorses a judicial candidate or seeks
that endorsement from other lawyers should be actuated
by a sincere belief in the superior qualifications of the
candidate for judicial service and not by personal or selfish motives; and a lawyer should not use or attempt to
use the power or prestige of the judicial office to secure
such endorsement. On the other hand, the lawyer whose
endorsement is sought, if he believes the candidate lacks
the essential qualifications for the office or believes the
opposing candidate is better qualified, should have the
courage and moral stamina to refuse the request for endorsement." ABA Opinion 189 (1938).
7
"[W]e are of the opinion that, whenever a candidate
for judicial office merits the endorsement and support of
lawyers, the lawyers may make financial contributions
toward the campaign if its cost, when reasonably conducted, exceeds that which the candidate would be expected
to bear personally." ABA Opinion 226 (1941).
8
See ABA Canon 1.
9
"Citizens have a right under our constitutional system
to criticize governmental officials and agencies. Courts
are not, and should not be, immune to such criticism."
Konigsberg v. State 'Bar of California, 353 U.S. 252, 269
(1957).
10 "[E]very lawyer, worthy of respect, realizes that public confidence in our courts is the cornerstone of our governmental structure, and will refrain from unjustified at.
tack on the character of the judges, while recognizing the
duty to denounce and expose a corrupt or dishonest judge."
Kentucky State Bar Ass'n v. Lewis, 282 S.W.2d 321, 326
( Ky. 1955).
"We should be the last to deny that Mr. Meeker has the
right to uphold the honor of the profession and to expose
without fear or favor corrupt or dishonest conduct in the
profession, whether the conduct be that of a judge or not.
. . . However, this Canon [29] does not permit one
to make charges which are false and untrue and unfounded
in fact. When one's fancy leads him to make false charges,
attacking the character and integrity of others, he does
so at his peril. He should not do so without adequate
proof of his charges and he is certainly not authorized to
make careless, untruthful and vile charges against his
professional brethren." In re Meeker, 76 N.M. 354, 36465, 414 P.2d 862, 869 (1966), appeal dismissed, 385 U.S. 449,
17 L.Ed.2d 510, 87 S.Ct. 613 (1967).
provement of the system. Thus a lawyer should
aid in establishing, as well as enforcing, standards of conduct adequate to protect the public by
insuring that those who practice law are qualified
to do so.
EC 8-8 Lawyers often serve as legislators or as
holders of other public offices. This is highly desirable, as lawyers are uniquely qualified to make
significant contributions to the improvement of
the legal system. A lawyer who is a public officer, whether full or part-time, should not engage
in activities in which his personal or professional
interests are or foreseeably may be in conflict with
his official duties.1'
EC 8-9 The advancement of our legal system is
of vital importance in maintaining the rule of law
and in facilitating orderly changes; therefore, lawyers should encourage, and should aid in making,
needed changes and improvements.
DISCIPLINARY RULES
DR 8-101 Action as a Public Official.
( A) A lawyer who holds public office shall not:
(1) Use his public position to obtain, or attempt to obtain, a special advantage in
legislative matters for himself or for
a client under circumstances where he
knows or it is obvious that such action
is not in the public interest.
(2) Use his public position to influence, or
attempt to influence, a tribunal to act
in favor of himself or of a client.
11 "Opinions 16, 30, 34, 77, 118 and 134 relate to Canon 6,
and pass on questions concerning the propriety of the conduct of an attorney who is a public officer, in representing private interests adverse to those of the public body
which he represents. The principle applied in those opinions is that an attorney holding public office should avoid
all conduct which might lead the layman to conclude that
the attorney is utilizing his public position to further
his professional success or personal interests." ABA Opinion 192 (1939).
"The next question is whether a lawyer-member of a
legislative body may appear as counsel or co-counsel at
hearings before a zoning board of appeals, or similar
tribunal, created by the legislative group of which he is
a member. We are of the opinion that he may practice
before fact-finding officers, hearing bodies and commissioners, since under our views he may appear as counsel
in the courts where his municipality is a party. Decisions
made at such hearings are usually subject to administrative review by the courts upon the record there made. It
would be inconsistent to say that a lawyer-member of a
legislative body could not participate in a hearing at which
the record is made, but could appear thereafter when the
cause is heard by the courts on administrative review. This
is subject to an important exception. He should not appear as counsel where the matter is subject to review by
the legislative body of which he is a member. . . . We
are of the opinion that where a lawyer does so appear
there would be conflict of interests between his duty as an
advocate for his client on the one hand and the obligation
to his governmental unit on the other." In re Becker, 16
Il1.2d 488, 494-95, 158 N.E.2d 753, 756-57 (1959).
Cf. ABA Opinions 186 (1938), 136 (1935), 118 (1934), and
77 (1932).
LXIV
CODE OF PROFESSIONAL RESPONSIBILITY
(3) Accept any thing of value from any
person when the lawyer knows or it is
obvious that the offer is for the purpose of influencing his action as a public official.
DR 8-102 Statements Concerning Judges and
Other Adjudicatory Officers.12
(A) A lawyer shall not knowingly make false
statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office.
(B) A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer.
CANON 9
ETHICAL CONSIDERATIONS
EC 9-1 Continuation of the American concept
that we are to be governed by rules of law requires that the people have faith that justice can
be obtained through our legal system.' A lawyer
should promote public confidence in our system
and in the legal profession.2
EC 9-2 Public confidence in law and lawyers
may be eroded by irresponsible or improper conduct of a lawyer. On occasion, ethical conduct of
a lawyer may appear to laymen to be unethical.
In order to avoid misunderstandings and hence to
maintain confidence, a lawyer should fully and
promptly inform his client of material developments in the matters being handled for the client.
While a lawyer should guard against otherwise
proper conduct that has a tendency to diminish
public confidence in the legal system or in the
legal profession, his duty to clients or to the public should never be subordinate merely because
the full discharge of his obligation may be misunderstood or may tend to subject him or the legal
profession to criticism. When explicit ethical
guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficf . ABA Canons 1 and 2.
1 "Integrity is the very breath of justice. Confidence
in our law, our courts, and in the administration of justice is our supreme interest. No practice must be permitted to prevail which invites towards the administration of
justice a doubt or distrust of its integrity." Erwin M.
Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866,
868 (1928).
2
"A lawyer should never be reluctant or too proud to
answer unjustified criticism of his profession, of himself,
or of his brother lawyer. He should guard the reputation
of his profession and of his brothers as zealously as he
guards his own." Rochelle and Payne, The Struggle for
Public Understanding, 25 Texas B.J. 109, 162 (1962).
Black's Law Dictionary 4th Ed. Rev.-e
EC 9-3 After a lawyer leaves judicial office or
other public employment, he should not accept
employment in connection with any matter in
which he had substantial responsibility prior to
his leaving, since to accept employment would
give the appearance of impropriety even if none
exists.'
EC 9-4 Because the very essence of the legal system is to provide procedures by which matters can
be presented in an impartial manner so that they
may be decided solely upon the merits, any statement or suggestion by a lawyer that he can or
would attempt to circumvent those procedures is
detrimental to the legal system and tends to undermine public confidence in it.
EC 9-5 Separation of the funds of a client from
those of his lawyer not only serves to protect the
client but also avoids even the appearance of impropriety, and therefore commingling of such
funds should be avoided.
A Lawyer Should Avoid Even the
Appearance of Professional
Impropriety
12
ciency of the legal system and the legal profession.3
EC 9-6 Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to
encourage respect of the law and for the courts
and the judges thereof; to observe the Code of
Professional Responsibility; to act as a member
of a learned profession, one dedicated to public
service; to cooperate with his brother lawyers in
supporting the organized bar through the devoting of his time, efforts, and financial support as
his professional standing and ability reasonably
permit; to conduct himself so as to reflect credit
on the legal profession and to inspire the confidence, respect, and trust of his clients and of the
public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.5
3
See ABA Canon 29.
4
See ABA Canon 36.
5
"As said in Opinion 49 of the Committee on Professional
Ethics and Grievances of the American Bar Association,
page 134: 'An attorney should not only avoid impropriety
but should avoid the appearance of impropriety.' " State
ex rel, Nebraska State Bar Ass'n v. Richards, 165 Neb. 80.
93, 84 N.W.2d 136, 145 (1957).
"It would also be preferable that such contribution [to
the campaign of a candidate for judicial office] be made
to a campaign committee rather than to the candidate
personally. In so doing, possible appearances of impropriety would be reduced to a minimum." ABA Opinion
226 (1941).
"The lawyer assumes high duties, and has imposed upon
him grave responsibilities. He may be the means of much
good or much mischief. Interests of vast magnitude are
entrusted to him; confidence is reposed in him ; life, liberty, character and property should be protected by him.
He should guard, with jealous watchfulness, his own reputation, as well as that of his profession." People ex rel.
Cutler v. Ford, 54 Ill. 520, 522 (1870), and also quoted in
State Board of Law Examiners v. Sheldon, 43 Wyo. 522,
526, 7 P.2d 226, 227 (1932).
See ABA Opinion 150 (1936).
LXV
CODE OF PROFESSIONAL RESPONSIBILITY
DISCIPLINARY RULES
DR 9-101 Avoiding Even the Appearance of Impropriety.6
(A) A lawyer shall not accept private employment in a matter upon the merits of which
he has acted in a judicial capacity.?
(B) A lawyer shall not accept private employment
in a matter in which he had substantial responsibility while he was a public employee.8
DR 9-102 Preserving Identity of Funds and
Property of a Client.10
( A) All funds of clients paid to a lawyer or law
firm, other than advances for costs and expenses, shall be deposited in one or more
identifiable bank accounts maintained in the
state in which the law office is situated and
no funds belonging to the lawyer or law firm
shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay
bank charges may be deposited therein.
(C) A lawyer shall not state or imply that he is
able to influence improperly or upon irrelevant grounds any tribunal, legislative body,9
or public official.
6
(2) Funds belonging in part to a client and
in part presently or potentially to the
lawyer or law firm must be deposited
therein, but the portion belonging to
the lawyer or law firm may be withdrawn when due unless the right of
the lawyer or law firm to receive it is
disputed by the client, in which event
the disputed portion shall not be withdrawn until the dispute is finally resolved.
Cf. Code of Professional Responsibility, EC 5-6.
7
See ABA Canon 36.
"It is the duty of the judge to rule on questions of law
and evidence in misdemeanor cases and examinations in
felony cases. That duty calls for impartial and uninfluenced judgment, regardless of the effect on those immediately involved or others who may, directly or indirectly, be affected. Discharge of that duty might be greatly
interfered with if the judge, in another capacity, were
permitted to hold himself out to employment by those
who are to be, or who may be, brought to trial in felony
cases, even though he did not conduct the examination.
His private interests as a lawyer in building up his clientele, his duty as such zealously to espouse the cause of
his private clients and to defend against charges of crime
brought by law-enforcement agencies of which he is a
part, might prevent, or even destroy, that unbiased judicial judgment which is so essential in the administration
of justice.
"In our opinion, acceptance of a judgeship with the
duties of conducting misdemeanor trials, and examinations
in felony cases to determine whether those accused should
be bound over for trial in a higher court, ethically bars the
judge from acting as attorney for the defendants upon
such trial, whether they were examined by him or by
some other judge. Such a practice would not only diminish public confidence in the administration of justice in
both courts, but would produce serious conflict between
the private interests of the judge as a lawyer, and of his
clients, and his duties as a judge in adjudicating important
phases of criminal processes in other cases. The public
and private duties would be incompatible. The prestige
of the judicial office would be diverted to private benefit,
and the judicial office would be demeaned thereby." ABA
Opinion 242 (1942).
"A lawyer, who has previously occupied a judicial position or acted in a judicial capacity, should refrain from
accepting employment in any matter involving the same
facts as were involved in any specific question which he
acted upon in a judicial capacity and, for the same reasons, should also refrain from accepting any employment
which might reasonably appear to involve the same facts."
ABA Opinion 49 (1931).
See ABA Opinion 110 (1934).
8
See ABA Opinions 135 (1935) and 134 (1935) ; cf. ABA
Canon 36 and ABA Opinions 39 (1931) and 26 (1930). But
see ABA Opinion 37 (1931).
9
"[A statement by a governmental department or agency
with regard to a lawyer resigning from its staff that includes a laudation of his legal ability] carries implications, probably not founded in fact, that the lawyer's
acquaintance and previous relations with the personnel
of the administrative agencies of the government place
him in an advantageous position in practicing before such
agencies. So to imply would not only represent what prob-
(B) A lawyer shall:
(1) Promptly notify a client of the receipt
of his funds, securities, or other properties.
(2) Identify and label securities and properties of a client promptly upon receipt
and place them in a safe deposit box
or other place of safekeeping as soon
as practicable.
(3) Maintain complete records of all funds,
securities, and other properties of a
client coming into the possession of the
ably is untrue, but would be highly reprehensible." ABA
Opinion 184 (1938).
See ABA Canon 11.
"Rule 9. . . . A member of the State Bar shall not
commingle the money or other property of a client with
his own ; and he shall promptly report to the client the
receipt by him of all money and other property belonging
to such client. Unless the client otherwise directs in writing, he shall promptly deposit his client's funds in a bank
or trust company . . . in a bank account separate
from his own account and clearly designated as 'Clients'
Funds Account' or 'Trust Funds Account' or words of
similar import. Unless the client otherwise directs in writing, securities of a client in bearer form shall be kept by
the attorney in a safe deposit box at a bank or trust company, . . . which safe deposit box shall be clearly
designated as 'Clients' Account' or 'Trust Account' or words
of similar import, and be separate from the attorney's own
safe deposit box." Cal.Business and Professions Code
§ 6076 (West 1962).
"[C]ommingling is committed when a client's money is
intermingled with that of his attorney and its separate
identity lost so that it may be used for the attorney's personal expenses or subjected to claims of his creditors.
. . . The rule against commingling was adopted to
provide against the probability in some cases, the possibility in many cases, and the danger in all cases that such
commingling will result in the loss of clients' money."
Black v. State Bar, 57 Ca1.2d 219, 225-26, 368 P.2d 118, 122,
18 Cal.Rptr. 518, 522 (1962).
LXVI
10
CODE OF PROFESSIONAL RESPONSIBILITY
sistance to his client, 34 except that a lawyer
may advance or guarantee the expenses of
litigation, including court costs, expenses of
investigation, expenses of medical examination, and costs of obtaining and presenting
evidence, provided the client remains ultimately liable for such expenses.
DR 5-104 Limiting Business Relations with a
Client.
(A) A lawyer shall not enter into a business transaction with a client if they have differing
interests therein and if the client expects the
lawyer to exercise his professional judgment
therein for the protection of the client, unless
the client has consented after full disclosure.
(B) Prior to conclusion of all aspects of the matter giving rise to his employment, a lawyer
shall not enter into any arrangement or understanding with a client or a prospective
client by which he acquires an interest hi publication rights with respect to the subject
matter of his employment or proposed employment.
DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another
Client May Impair the Independent
Professional Judgment of the Lawyer.
(A) A lawyer shall decline proffered employment
if the exercise of his independent professional
judgment in behalf of a client will be or is
likely to be adversely affected by the acceptance of the proffered employment, 35 except
to the extent permitted under DR 5-105(C).36
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will
be or is likely to be adversely affected by his
representation of another client, except to the
extent permitted under DR 5-105(C).37
(C) In the situations covered by DR 5-105(A) and
( B), a lawyer may represent multiple clients
if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
34
See ABA Canon 42; cf. ABA Opinion 288 (1954).
35
See ABA Canon 6; cf. ABA Opinions 167 (1937), 60
(1931), and 40 (1931).
36
ABA Opinion 247 (1942) held that an attorney could
not investigate a night club shooting on behalf of one of
the owner's liability insurers, obtaining the cooperation of
the owner, and later represent the injured patron in an
action against the owner and a different insurance company unless the attorney obtain the "express consent of
all concerned given after a full disclosure of the facts,"
since to do so would be to represent conflicting interests.
See ABA Opinions 247 (1942), 224 (1941), 222 (1941), 218
(1941), 112 (1934), 83 (1932), and 86 (1932).
37
Cf. ABA Opinions 231 (1941) and 160 (1936).
( D) If a lawyer is required to decline employment
or to withdraw from employment under DR
5-105, no partner or associate of his or his
firm may accept or continue such employment.
DR 5-106 Settling Similar Claims of Clients.38
(A) A lawyer who represents two or more clients
shall not make or participate in the making
of an aggregate settlement of the claims of
or against his clients, unless each client has
consented to the settlement after being advised of the existence and nature of all the
claims involved in the proposed settlement, of
the total amount of the settlement, and of the
participation of each person in the settlement.
DR 5-107 Avoiding Influence by Others Than
the Client.
( A) Except with the consent of his client after
full disclosure, a lawyer shall not:
(1) Accept compensation for his legal services from one other than his client.
(2) Accept from one other than his client any
thing of value related to his representation of or his employment by his client.39
( B) A lawyer shall not permit a person who recommends, employs, or pays him to render
legal services for another to direct or regulate
his professional judgment in rendering such
legal services.40
(C) A lawyer shall not practice with or in the
form of a professional corporation or association authorized to practice law for a profit,
if:
(1) A non-lawyer owns any interest therein,41
except that a fiduciary representative of
the estate of a lawyer may hold the stock
or interest of the lawyer for a reasonable
time during administration;
(2) A non-lawyer is a corporate director or
officer thereof; 42 or
38
Cf. ABA Opinions 243 (1942) and 235 (1941).
39
See ABA Canon 38.
"A lawyer who receives a commission (whether delayed
or not) from a title insurance company or guaranty fund
for recommending or selling the insurance to his client, or
for work done for the client or the company, without
either fully disclosing to the client his financial interest
in the transaction, or crediting the client's bill with the
amount thus received, is guilty of unethical conduct."
ABA Opinion 304 (1962).
See ABA Canon 35; cf. ABA Opinion 237 (1941).
"When the lay forwarder, as agent for the creditor, forwards a claim to an attorney, the direct relationship of
attorney and client shall then exist between the attorney
and the creditor, and the forwarder shall not interpose
itself as an intermediary to control the activities of the
attorney." ABA Opinion 294 (1958).
40
41 "Permanent beneficial and voting rights in the organization set up to practice law, whatever its form, must
be restricted to lawyers while the organization is engaged
in the practice of law." ABA Opinion 303 (1961).
42 "Canon 33 . . . promulgates underlying principles
that must be observed no matter in what form of organiza-
XLVII
CODE OF PROFESSIONAL RESPONSIBILITY
(3) A non-lawyer has the right to direct or
control the professional judgment of a
lawyer.43
CANON 6
A Lawyer Should Represent a Client
Competently
ETHICAL CONSIDERATIONS
EC 6-1 Because of his vital role in the legal
process, a lawyer should act with competence and
proper care in representing clients. He should
strive to become and remain proficient in his practice 1 and should accept employment only in matters which he is or intends to become competent
to handle.
EC 6-2 A lawyer is aided in attaining and maintaining his competence by keeping abreast of current legal literature and developments, participattion lawyers practice law. Its requirement that no person
shall be admitted or held out as a practitioner or member
who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline,
makes it clear that any centralized management must be
in lawyers to avoid a violation of this Canon." ABA Opinion 303 (1961).
43 "There is no intervention of any lay agency between
lawyer and client when centralized management provided
only by lawyers may give guidance or direction to the
services being rendered by a lawyer-member of the organization to a client. The language in Canon 35 that a
lawyer should avoid all relations which direct the performance of his duties by or in the interest of an intermediary refers to lay intermediaries and not lawyer intermediaries with whom he is associated in the practice
of law." ABA Opinion 303 (1961).
1 "[W]hen a citizen is faced with the need for a lawyer,
he wants, and is entitled to, the best informed counsel
he can obtain. Changing times produce changes in our
laws and legal procedures. The natural complexities of
law require continuing intensive study by a lawyer if he
is to render his clients a maximum of efficient service.
And, in so doing, he maintains the high standards of the
legal profession; and he also increases respect and confidence by the general public." Rochelle & Payne, The
Struggle for Public Understanding, 25 Texas B.J. 109, 160
(1962).
"We have undergone enormous changes in the last fifty
years within the lives of most of the adults living today
who may be seeking advice. Most of these changes
have been accompanied by changes and developments in
the law. . . . Every practicing lawyer encounters these
problems and is often perplexed with his own inability
to keep up, not only with changes in the law, but also
with changes in the lives of his clients and their legal
problems.
"To be sure, no client has a right to expect that his lawyer will have all of the answers at the end of his tongue
or even in the back of his head at all times, But the
client does have the right to expect that the lawyer will
have devoted his time and energies to maintaining and
i mproving his competence to know where to look for the
answers, to know how to deal with the problems, and to
know how to advise to the best of his legal talents and
abilities." Levy & Sprague, Accounting and Law: Is Dual
Practice in the Public Interest?, 52 A.B.A.J. 1110, 1112
(1966).
ing in continuing legal education programs, 2 concentrating in particular areas of the law, and by
utilizing other available means. He has the additional ethical obligation to assist in improving
the legal profession, and he may do so by participating in bar activities intended to advance the
quality and standards of members of the profession. Of particular importance is the careful
training of his younger associates and the giving
of sound guidance to all lawyers who consult him.
In short, a lawyer should strive at all levels to aid
the legal profession in advancing the highest possible standards of integrity and competence and
to meet those standards himself.
EC 6-3 While the licensing of a lawyer is evidence that he has met the standards then prevailing for admission to the bar, a lawyer generally
should not accept employment in any area of the
law in which he is not qualified. 3 However, he
may accept such employment if in good faith he
expects to become qualified through study and investigation, as long as such preparation would not
result in unreasonable delay or expense to his
client. Proper preparation and representation
may require the association by the lawyer of professionals in other disciplines. A lawyer offered
employment in a matter in which he is not and
does not expect to become so qualified should either decline the employment or, with the consent
of his client, accept the employment and associate
a lawyer who is competent in the matter.4
EC 6-4 Having undertaken representation, a lawyer should use proper care to safeguard the interests of his client. If a lawyer has accepted employment in a matter beyond his competence but
in which he expected to become competent, he
should diligently undertake the work and study
necessary to qualify himself. In addition to being
qualified to handle a particular matter, his obligation to his client requires him to prepare adequately for and give appropriate attention to his
legal work.
EC 6-5 A lawyer should have pride in his professional endeavors. His obligation to act competently calls for higher motivation than that
arising from fear of civil liability or disciplinary
penalty.
2 ‘‘ The whole purpose of continuing legal education, so
enthusiastically supported by the ABA, is to make it possible for lawyers to make themselves better lawyers.
But there are no nostrums for proficiency in the law; it
must come through the hard work of the lawyer himself.
To the extent that that work, whether it be in attending
institutes or lecture courses, in studying after hours or in
the actual day in and day out practice of his profession,
can be concentrated within a limited field, the greater the
proficiency and expertness that can be developed." Report of the Special Committee on Specialization and Specialized Legal Education, 79 A.B.A.Rep. 582, 588 (1954).
3
"If the attorney is not competent to skillfully and
properly perform the work, he should not undertake the
service." Degen v. Steinbrink, 202 App.Div. 477, 481, 195
N.Y.S. 810, 814 (1922), aff'd mem., 236 N.Y. 669, 142 N.E.
328 (1923).
4
XLVIII
Cf. ABA Opinion 232 (1941).
CODE OF PROFESSIONAL RESPONSIBILITY
EC 6-6 A lawyer should not seek, by contract or
other means, to limit his individual liability to his
client for his malpractice. A lawyer who handles
the affairs of his client properly has no need to
attempt to limit his liability for his professional
activities and one who does not handle the affairs
of his client properly should not be permitted to
do so. A lawyer who is a stockholder in or is associated with a professional legal corporation may,
however, limit his liability for malpractice of his
associates in the corporation, but only to the extent permitted by law.5
DISCIPLINARY RULES
DR 6-101 Failing to Act Competently.
( A) A lawyer shall not:
(1) Handle a legal matter which he knows
or should know that he is not competent
to handle, without associating with him
a lawyer who is competent to handle it.
(2) Handle a legal matter without preparation adequate in the circumstances.
(3) Neglect a legal matter entrusted to him.6
DR 6-102 Limiting Liability to Client.
( A) A lawyer shall not attempt to exonerate himself from or limit his liability to his client
for his personal malpractice.
CANON 7
A Lawyer Should Represent a Client Zealously
Within the Bounds of the Law
ETHICAL CONSIDERATIONS
EC 7-1 The duty of a lawyer, both to his client 1
and to the legal system, is to represent his client
zealously 2 within the bounds of the law, 3 which
See ABA Opinion 303 (1961) ; cf. Code of Professional
Responsibility, EC 2-11.
6
The annual report for 1967-1968 of the Committee on
Grievances of the Association of the Bar of the City of
New York showed a receipt of 2,232 complaints ; of the
828 offenses against clients, 76 involved conversion, 49
involved "overreaching," and 452, or more than half of
all such offenses, involved neglect. Annual Report of the
Committee on Grievances of the Association of the Bar of
the City of New York, N.Y.L.J., Sept. 12, 1968, at 4, col. 5.
1 "The right to be heard would be, in many cases, of
little avail if it did not comprehend the right to be heard
by counsel. Even the intelligent and educated layman has
small and sometimes no skill in the science of law."
Powell v. Alabama, 287 U.S. 45, 68-69, 77 L.Ed. 158, 170, 53
S.Ct. 55, 64 (1932).
Cf. ABA Canon 4.
"At times . . . [the tax lawyer] will be wise to discard some arguments and he should exercise discretion to
emphasize the arguments which in his judgment are most
likely to be persuasive. But this process involves legal
judgment rather than moral attitudes. The tax lawyer
should put aside private disagreements with Congressional
and Treasury policies. His own notions of policy, and
his personal view of what the law should be, are irrelevant.
The job entrusted to him by his client is to use all his
learning and ability to protect his client's rights, not to
2
Black's Law Dictionary 4th Ed. Rev.—d
includes Disciplinary Rules and enforceable prohelp in the process of promoting a better tax system. The
tax lawyer need not accept his client's economic and
social opinions, but the client is paying for technical attention and undivided concentration upon his affairs. He
is equally entitled to performance unfettered by his attorney's economic and social predilections." Paul, The Lawyer as a Tax Adviser, 25 Rocky Mt. L. Rev. 412, 418
(1953).
3
See ABA Canons 15 and 32.
ABA Canon 5, although only speaking of one accused
of crime, imposes a similar obligation on the lawyer :
"[T]he lawyer is bound, by all fair and honorable means,
to present every defense that the law of the land permits, to the end that no person may be deprived of life
or liberty, but by due process of law."
"Any persuasion or pressure on the advocate which deters him from planning and carrying out the litigation on
the basis of 'what, within the framework of the law, is
best for my client's interest?' interferes with the obligation
to represent the client fully within the law.
"This obligation, in its fullest sense, is the heart of the
adversary process. Each attorney, as an advocate, acts
for and seeks that which in his judgment is best for
his client, within the bounds authoritatively established.
The advocate does not decide what is just in this case-he would be usurping the function of the judge and jury—
he acts for and seeks for his client that which he is entitled to under the law. He can do no less and properly
represent the client." Thode, The Ethical Standard for
the Advocate, 39 Texas L.Rev. 575, 584 (1961).
"The [Texas public opinion] survey indicates that distrust of the lawyer can be traced directly to certain
factors. Foremost of these is a basic misunderstanding
of the function of the lawyer as an advocate in an adversary system.
"Lawyers are accused of taking advantage of 'loopholes'
and 'technicalities' to win. Persons who make this charge
are unaware, or do not understand, that the lawyer is
hired to win, and if he does not exercise every legitimate effort in his client's behalf, then he is betraying
a sacred trust." Rochelle & Payne, The Struggle for
Public Understanding, 25 Texas B.J. 109, 159 (1962).
"The importance of the attorney's undivided allegiance
and faithful service to one accused of crime, irrespective
of the attorney's personal opinion as to the guilt of his
client, lies in Canon 5 of the American Bar Association
Canon of Ethics.
"The difficulty lies, of course, in ascertaining whether
the attorney has been guilty of an error of judgment,
such as an election with respect to trial tactics, or
has otherwise been actuated by his conscience or belief
that his client should be convicted in any event. All
too frequently courts are called upon to review actions
of defense counsel which are, at the most, errors of
judgment, not properly reviewable on habeas corpus unless the trial is a farce and a mockery of justice which
requires the court to intervene. . . . But when
defense counsel, in a truly adverse proceeding, admits that
his conscience would not permit him to adopt certain
customary trial procedures, this extends beyond the realm
of judgment and strongly suggests an invasion of constitutional rights." Johns v. Smyth, 176 F.Supp. 949, 952
( E.D.Va.1959), modified, United States ex rel. Wilkins v.
Banmiller, 205 F.Supp. 123, 128, n. 5 (E.D.Pa.1962), aff'd,
325 F.2d 514 (3d Cir. 1963), cert. denied, 379 U.S. 847, 13
L.Ed.2d 51, 85 S.Ct. 87 (1964).
"The adversary system in law administration bears a
striking resemblance to the competitive economic system.
In each we assume that the individual through partisanship or through self-interest will strive mightily for his
side, and that kind of striving we must have. But neither
system would be tolerable without restraints and modi-
XLIX
CODE OF PROFESSIONAL RESPONSIBILITY
legislative enactments and judicial opinions may
be uncertain as applied to varying factual situations. The limits and specific meaning of apparently relevant law may be made doubtful by
changing or developing constitutional interpretations, inadequately expressed statutes or judicial
opinions, and changing public and judicial attitudes. Certainty of law ranges from well-settled
rules through areas of conflicting authority to
areas without precedent.
fessional regulations. 4 The professional responsibility of a lawyer derives from his membership
in a profession which has the duty of assisting
members of the public to secure and protect available legal rights and benefits. In our government
of laws and not of men, each member of our society is entitled to have his conduct judged and
regulated in accordance with the law; 5 to seek
any lawful objective 6 through legally permissible
means; 7 and to present for adjudication any lawful claim, issue, or defense.
EC 7-3 Where the bounds of law are uncertain,
the action of a lawyer may depend on whether he
is serving as advocate or adviser. A lawyer may
serve simultaneously as both advocate and adviser,
but the two roles are essentially different. 9 In
asserting a position on behalf of his client, an
advocate for the most part deals with past conduct and must take the facts as he finds them.
By contrast, a lawyer serving as adviser primarily
assists his client in determining the course of future conduct and relationships. While serving as
advocate, a lawyer should resolve in favor of his
client doubts as to the bounds of the law. 10 In
serving a client as adviser, a lawyer in appropriate
EC 7-2 The bounds of the law in a given case
are often difficult to ascertain. 8 The language of
fications, and at times without outright departures from
the system itself. Since the legal profession is entrusted
with the system of law administration, a part of its task
is to develop in its members appropriate restraints without
i mpairing the values of partisan striving. An accompanying task is to aid in the modification of the adversary system or departure from it in areas to which the system is
unsuited." Cheatham, The Lawyer's Role and Surroundings, 25 Rocky Mt. L.Rev. 405, 410 (1953).
4 "Rule 4.15 prohibits, in the pursuit of a client's cause,
'any manner of fraud or chicane' ; Rule 4.22 requires 'candor and fairness' in the conduct of the lawyer, and forbids the making of knowing misquotations; Rule 4.47
provides that a lawyer 'should always maintain his integrity,' and generally forbids all misconduct injurious to
the interests of the public, the courts, or his clients, and
acts contrary to 'justice, honesty, modesty or good morals.'
Our Commissioner has accurately paraphrased these rules
as follows : 'An attorney does not have the duty to do
all and whatever he can that may enable him to win his
client's cause or to further his client's interest. His duty
and efforts in these respects, although they should be
prompted by his "entire devotion" to the interest of his
client, must be within and not without the bounds of
the law.' " In re Wines, 370 S.W.2d 328, 333 (Mo.1963).
See Note, 38 Texas L.Rev. 107, 110 (1959).
sippi, 280 U.S. 390, 395-96, 74 L. Ed. 504, 508, 50 S.Ct. 169,
170 (1930).
9
"Today's lawyers perform two distinct types of functions, and our ethical standards should, but in the main
do not, recognize these two functions. Judge Philbrick
McCoy recently reported to the American Bar Association
the need for a reappraisal of the Canons in light of the
new and distinct function of counselor, as distinguished
from advocate, which today predominates in the legal profession. . . .
". • . In the first place, any revision of the canons
must take into account and speak to this new and now
predominant function of the lawyer. . . . It is beyond the scope of this paper to discuss the ethical standards to be applied to the counselor except to state that
in my opinion such standards should require a greater
recognition and protection for the interest of the public
generally than is presently expressed in the canons.
Also, the counselor's obligation should extend to requiring
him to inform and to impress upon the client a just solution of the problem, considering all interests involved."
Thode, The Ethical Standard for the Advocate, 39 Texas
L.Rev. 575, 578-79 (1961).
"The man who has been called into court to answer for
his own actions is entitled to fair hearing. Partisan advocacy plays its essential part in such a hearing, and the
lawyer pleading his client's case may properly present it
in the most favorable light. A similar resolution of doubts
in one direction becomes inappropriate when the lawyer
acts as counselor. The reasons that justify and even
require partisan advocacy in the trial of a cause do not
grant any license to the lawyer to participate as legal advisor in a line of conduct that is immoral, unfair, or of
doubtful legality. In saving himself from this unworthy
involvement, the lawyer cannot be guided solely by an unreflective inner sense of good faith; he must be at pains
to preserve a sufficient detachment from his client's interests so that he remains capable of a sound and objective appraisal of the propriety of what his client proposes
to do." Professional Responsibility: Report of the Joint
Conference, 44 A.B.A.J, 1159, 1161 (1958).
5
"Under our system of government the process of adjudication is surrounded by safeguards evolved from centuries of experience. These safeguards are not designed
merely to lend formality and decorum to the trial of
causes. They are predicated on the assumption that to secure for any controversy a truly informed and dispassionate decision is a difficult thing, requiring for its achievement a special summoning and organization of human effort and the adoption of measures to exclude the biases and
prejudgments that have free play outside the courtroom.
All of this goes for naught if the man with an unpopular
cause is unable to find a competent lawyer courageous
enough to represent him. His chance to have his day in
court loses much of its meaning if his case is handicapped
from the outset by the very kind of prejudgment our
rules of evidence and procedure are intended to prevent."
Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
6
"[I]t is . . . [the tax lawyer's] positive duty to
show the client how to avail himself to the full of what
the law permits. He is not the keeper of the Congressional conscience." Paul, The Lawyer as a Tax Adviser, 25
Rocky Mt.L.Rev. 412, 418 (1953).
7
See ABA Canons 15 and 30.
"The fact that it desired to evade the law, as it is
called, is immaterial, because the very meaning of a line
in the law is that you intentionally may go as close to
it as you can if you do not pass it . . .. It is a matter of proximity and degree as to which minds will differ
.•
Justice Holmes, in Superior Oil Co. v. Missis-
10 "[A] lawyer who is asked to advise his client
. . . may freely urge the statement of positions most
favorable to the client just as long as there is reasonable
basis for those positions." ABA Opinion 314 (1965).
L
CODE OF PROFESSIONAL RESPONSIBILITY
circumstances should give his professional opinion
as to what the ultimate decisions of the courts
would likely be as to the applicable law.
Duty of the Lawyer to a Client
EC 7-4 The advocate may urge any permissible
construction of the law favorable to his client,
without regard to his professional opinion as to
the likelihood that the construction will ultimately prevai1, 11 His conduct is within the bounds of
the law, and therefore permissible, if the position
taken is supported by the law or is supportable
by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous .12
EC 7-5 A lawyer as adviser furthers the interest of his client by giving his professional opinion
as to what he believes would likely be the ultimate decision of the courts on the matter at hand
and by informing 3his client of the practical effect
of such decision.' He may continue in the representation of his client even though his client has
elected to pursue a course of conduct contrary to
the advice of the lawyer so long as he does not
thereby knowingly assist the client to engage in
illegal conduct or to take a frivolous legal position. A lawyer should never encourage or aid his
client to commit criminal acts or counsel his client
on how to violate the law and avoid punishment
therefor.14
EC 7-6 Whether the proposed action of a lawyer
is within the bounds of the law may be a perplexing question when his client is contemplating a
course of conduct having legal consequence that
vary according to the client's intent, motive, or desires at the time of the action. Often a lawyer
is asked to assist his client in developing evidence
relevant to the state of mind of the client at a
particular time. He may properly assist his client
in the development and preservation of evidence
of existing motive, intent, or desire; obviously, he
may not do anything furthering the creation or
preservation of false evidence. In many cases a
lawyer may not be certain as to the state of mind
of his client, and in those situations he should resolve reasonable doubts in favor of his client.
11
"The lawyer . . . is not an umpire, but an advocate. He is under no duty to refrain from making every
proper argument in support of any legal point because
he is not convinced of its inherent soundness. . . .
His personal belief in the soundness of his cause or of the
authorities supporting it, is irrelevant." ABA Opinion 280
(1949).
"Counsel apparently misconceived his role. It was his
duty to honorably present his client's contentions in the
light most favorable to his client. Instead he presumed
to advise the court as to the validity and sufficiency of
prisoner's motion, by letter. We therefore conclude that
the prisoner had no effective assistance of counsel and
remand this case to the District Court with instructions to
set aside the Judgment, appoint new counsel to represent
the prisoner if he makes no objection thereto, and proceed
anew." McCartney v. United States, 343 F.2d 471, 472 (9th
Cir. 1965).
EC 7-7 In certain areas of legal representation
not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is
entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively
that of the client and, if made within the framework of the law, such decisions are binding on his
lawyer. As typical examples in civil cases, it is
for the client to decide whether he will accept a
settlement offer or whether he will waive his right
to plead an affirmative defense. A defense lawyer in a criminal case has the duty to advise his
client fully on whether a particular plea to a
charge appears to be desirable and as to the pros-
12
"Here the court-appointed counsel had the transcript
but refused to proceed with the appeal because he found
no merit in it. . . . We cannot say that there was
a finding of frivolity by either of the California courts or
that counsel acted in any greater capacity than merely as
amicus curiae which was condemned in Ellis, supra.
Hence California's procedure did not furnish petitioner
with counsel acting in the role of an advocate nor did it
provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity.
"The constitutional requirement of substantial equality
and fair process can only be attained where counsel acts in
the role of an active advocate in behalf of his client, as
opposed to that of amicus curiae. The no-merit letter and
the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of
more assistance to his client and to the court. His role
as advocate requires that he support his client's appeal to
the best of his ability. Of course, if counsel finds his
case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be
accompanied by a brief referring to anything in the record
that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—
not counsel—then proceeds, after a full examination of all
the proceedings, to decide whether the case is wholly
frivolous. If it so finds it may grant counsel's request to
withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on
the merits, if state law so requires. On the other hand,
if it finds any of the legal points arguable on their merits
(and therefore not frivolous) it must, prior to decision,
afford the indigent the assistance of counsel to argue the
appeal." Anders v. California, 386 U.S. 738, 744, 18 L.Ed.
2d 493, 498, 87 S.Ct. 1396, 1399-1400 (1967), rehearing denied, 388 U.S. 924, 18 L.Ed.2d 1377, 87 S.Ct. 2094 (1967).
See Paul, The Lawyer As a Tax Adviser, 25 Rocky Mt.
L. Rev. 412, 432 (1953).
13 See ABA Canon 32.
"For a lawyer to represent a syndicate notoriously
engaged in the violation of the law for the purpose of advising the members how to break the law and at the same
time escape it, is manifestly improper. While a lawyer
may see to it that anyone accused of crime, no matter
how serious and flagrant, has a fair trial, and present all
available defenses, he may not co-operate in planning violations of the law. There is a sharp distinction, of course,
between advising what can lawfully be done and advising
how unlawful acts can be done in a way to avoid conviction. Where a lawyer accepts a retainer from an
organization, known to be unlawful, and agrees in advance to defend its members when from time to time they
are accused of crime arising out of its unlawful activities,
this Is equally improper."
"See also Opinion 155." ABA Opinion 281 (1952).
14
LI
CODE OF PROFESSIONAL RESPONSIBILITY
pects of success on appeal, but it is for the client
to decide what plea should be entered and whether
an appeal should be taken.15
EC 7-8 A lawyer should exert his best efforts to
insure that decisions of his client are made only
after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so.
Advice of a lawyer to his client need not be confined to purely legal considerations. 16 A lawyer
should advise his client of the possible effect of
each legal alternative. 17 A lawyer should bring
to bear upon this decision-making process the fullness of his experience as well as his objective
viewpoint' s In assisting his client to reach a
proper decision, it is often desirable for a lawyer
to point out those factors which may lead to a
decision that is morally just as well as legally permissible. 19 He may emphasize the possibility of
harsh consequences that might result from assertion of legally permissible positions. In the
final analysis, however, the lawyer should always
remember that the decision whether to forego legally available objectives or methods because of
non-legal factors is ultimately for the client and
15 See ABA Special Committee on Minimum Standards
for the Administration of Criminal Justice, Standards Relating to Pleas of Guilty pp. 69-70 (1968).
16 "First of all, a truly great lawyer is a wise counselor
to all manner of men in the varied crises of their lives
when they most need disinterested advice. Effective
counseling necessarily involves a thoroughgoing knowledge
of the principles of the law not merely as they appear in
the books but as they actually operate in action." Vanderbilt, The Five Functions of the Lawyer: Service to
Clients and the Public, 40 A.B.A.J. 31 (1954).
17
"A lawyer should endeavor to obtain full knowledge of
his client's cause before advising thereon. . . ." ABA
Canon 8.
18
"[I]n devising charters of collaborative effort the
lawyer often acts where all of the affected parties are
present as participants. But the lawyer also performs
a similar function in situations where this is not so, as,
for example, in planning estates and drafting wills. Here
the instrument defining the terms of collaboration may
affect persons not present and often not born. Yet here,
too, the good lawyer does not serve merely as a legal conduit for his client's desires, but as a wise counselor, experienced in the art of devising arrangements that will
put in workable order the entangled affairs and interests
of human beings." Professional Responsibility: Report
of the Joint Conference, 44 A.B.A.J. 1159, 1162 (1958).
19
See ABA Canon 8.
"Vital as is the lawyer's role in adjudication, it should
not be thought that it is only as an advocate pleading in
open court that he contributes to the administration of
the law. The most effective realization of the law's aims
often takes place in the attorney's office, where litigation
is forestalled by anticipating its outcome, where the lawyer's quiet counsel takes the place of public force. Contrary to popular belief, the compliance with the law thus
brought about is not generally lip-serving and narrow, for
aj reminding him of its long-run costs the lawyer often
deters his client from a course of conduct technically permissible under existing law, though Inconsistent with its
underlying spirit and purpose." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159,
1161 (1958).
LI1
not for himself, In the event that the client in a
non-adjudicatory matter insists upon a course of
conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the lawyer may withdraw from the
employment.20
EC 7-9 In the exercise of his professional judgment on those decisions which are for his determination in the handling of a legal matter, 21 a lawyer should always act in a manner consistent with
the best interests of his client. 22 However, when
an action in the best interest of his client seems
to him to be unjust, he may ask his client for
permission to forego such action.23
EC 7-10 The duty of a lawyer to represent his
client with zeal does not militate against his concurrent obligation to treat with consideration all
persons involved in the legal process and to avoid
the infliction of needless harm.
EC 7-11 The responsibilities of a lawyer may
vary according to the intelligence, experience, mental condition or age of a client, the obligation of
a public officer, or the nature of a particular proceeding. Examples include the representation of
an illiterate or an incompetent, service as a public prosecutor or other government lawyer, and
appearances before administrative and legislative
bodies.
EC 7-12 Any mental or physical condition of a
client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an
incompetent is acting through a guardian or other
legal representative, a lawyer must look to such
representative for those decisions which are normally the prerogative of the client to make. If a
client under disability has no legal representative,
his lawyer may be compelled in court proceedings
to make decisions on behalf of the client. If the
client is capable of understanding the matter in
question or of contributing to the advancement of
his interests, regardless of whether he is legally
disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If
the disability of a client and the lack of a legal
representative compel the lawyer to make decisions for his client, the lawyer should consider all
20 "My summation of Judge Sharswood's view of the
advocate's duty to the client is that he owes to the client
the duty to use all legal means in support of the client's
case. However, at the same time Judge Sharswood recognized that many advocates would find this obligation unbearable if applicable without exception. Therefore, the
individual lawyer is given the choice of representing his
client fully within the bounds set by the law or of telling
his client that he cannot do so, so that the client may obtain another attorney if he wishes." Thode, The Ethical
Standard for the Advocate, 39 Texas L.Rev. 575, 582 (1961).
Cf. Code of Professional Responsibility, DR 2-110 (C).
21
See ABA Canon 24.
Thode, The Ethical Standard for the Advocate, 39
Texas L.Rev. 575, 592 (1961).
22
23
Cf. ABA Opinions 253 (1946) and 178 (1938).
CODE OF PROFESSIONAL RESPONSIBILITY
EC 7-15 The nature and purpose of proceedings
before administrative agencies vary widely. The
proceedings may be legislative or quasi-judicial,
or a combination of both. They may be ex parte
in character, in which event they may originate
either at the instance of the agency or upon motion of an interested party. The scope of an inquiry may be purely investigative or it may be
truly adversary looking toward the adjudication of
specific rights of a party or of classes of parties.
The foregoing are but examples of some of the
types of proceedings conducted by administrative
agencies. A lawyer appearing before an administrative agency, 25 regardless of the nature of the
proceeding it is conducting, has the continuing
duty to advance the cause of his client within the
bounds of the law. 26 Where the applicable rules
of the agency impose specific obligations upon a
lawyer, it is his duty to comply therewith, unless
the lawyer has a legitimate basis for challenging
the validity thereof. In all appearances before
administrative agencies, a lawyer should identify
himself, his client if identity of his client is not
privileged, 27 and the representative nature of his
appearance. It is not improper, however, for a
lawyer to seek from an agency information available to the public without identifying his client.
circumstances then prevailing and act with care
to safeguard and advance the interests of his
client. But obviously a lawyer cannot perform
any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent.
EC 7-13 The responsibility of a public prosecutor
differs from that of the usual advocate; his duty
is to seek justice, not merely to convict. 24 This
special duty exists because: (1) the prosecutor
represents the sovereign and therefore should use
restraint in the discretionary exercise of governmental powers, such as in the selection of cases
to prosecute; (2) during trial the prosecutor is not
only an advocate but he also may make decisions
normally made by an individual client, and those
affecting the public interest should be fair to all;
and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable
doubts. With respect to evidence and witnesses,
the prosecutor has responsibilities different from
those of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him, that
tends to negate the guilt of the accused, mitigate
the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he
believes it will damage the prosecution's case or
aid the accused.
EC 7-16 The primary business of a legislative
body is to enact laws rather than to adjudicate
controversies, although on occasion the activities
of a legislative body may take on the characteristics of an adversary proceeding, particularly in investigative and impeachment matters. The role
of a lawyer supporting or opposing proposed legislation normally is quite different from his role
in representing a person under investigation or on
trial by a legislative body. When a lawyer appears in connection with proposed legislation, he
seeks to affect the lawmaking process, but when
he appears on behalf of a client in investigatory
or impeachment proceedings, he is concerned with
the protection of the rights of his client. In either event, he should identify himself and his
client, if identity of his client is not privileged,
and should comply with applicable laws and legislative rules.28
EC 7-14 A government lawyer who has discretionary power relative to litigation should refrain
from instituting or continuing litigation that is
obviously unfair. A government lawyer not having such discretionary power who believes there
is lack of merit in a controversy submitted to him
should so advise his superiors and recommend the
avoidance of unfair litigation. A government lawyer in a civil action or administrative proceeding
has the responsibility to seek justice and to develop a full and fair record, and he should not
use his position or the economic power of the
government to harass parties or to bring about
unjust settlements or results.
24 See ABA Canon 5 and Berger v. United States, 295
U.S. 78, 79 L. Ed. 1314, 55 S.Ct. 629 (1935).
"The public prosecutor cannot take as a guide for the
conduct of his office the standards of an attorney appearing on behalf of an individual client. The freedom elsewhere wisely granted to a partisan advocate must be
severely curtailed if the prosecutor's duties are to be properly discharged. The public prosecutor must recall that
he occupies a dual role, being obligated, on the one hand,
to furnish that adversary element essential to the informed decision of any controversy, but being possessed,
on the other, of important governmental powers that are
pledged to the accomplishment of one objective only, that
of impartial justice. Where the prosecutor is recreant to
the trust implicit in his office, he undermines confidence,
not only in his profession, but in government and the very
ideal of justice itself." Professional Responsibility : Report of the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958).
"The prosecuting attorney Is the attorney for the state,
and it is his primary duty not to convict but to see that
justice is done." ABA Opinion 150 (1936).
EC 7-17 The obligation of loyalty to his client
applies only to a lawyer in the discharge of his
professional duties and implies no obligation to
adopt a personal viewpoint favorable to the in25
As to appearances before a department of government,
Canon 26 provides : "A lawyer openly . . . may render
professional services . . . in advocacy of claims before departments of government, upon the same principles
of ethics which justify his appearance before the Courts
26
"But as an advocate before a service which itself
represents the adversary point of view, where his client's
case is fairly arguable, a lawyer is under no duty to disclose its weaknesses, any more than he would be to make
such a disclosure to a brother lawyer. The limitations
within which he must operate are best expressed in Canon
22 . . . ." ABA Opinion 314 (1965).
LIII
27
See Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960).
28
See ABA Canon 26.
CODE OF PROFESSIONAL RESPONSIBILITY
terests or desires of his client. 29 While a lawyer
must act always with circumspection in order that
his conduct will not adversely affect the rights of
a client in a matter he is then handling, he may
take positions on public issues and espouse legal
reforms he favors without regard to the individual
views of any client.
EC 7-18 The legal system in its broadest sense
functions best when persons in need of legal advice or assistance are represented by their own
counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be
represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the
consent of the lawyer for that person. 3° If one
is not represented by counsel, a lawyer representing another may have to deal directly with the
unrepresented person; in such an instance, a lawyer should not undertake to give advice to the
person who is attempting to represent himself,31
except that he may advise him to obtain a lawyer.
Duty of the Lawyer to the Adversary System of
Justice
EC 7-19 Our legal system provides for the adjudication of disputes governed by the rules of
substantive, evidentiary, and procedural law. An
adversary presentation counters the natural human tendency to judge too swiftly in terms of the
familiar that which is not yet fully known; 32 the
advocate, by his zealous preparation and presentation of facts and law, enables the tribunal to come
to the hearing with an open and neutral mind and
to render impartial judgments. 33 The duty of a
29
"Law should be so practiced that the lawyer remains free to make up his own mind how he will vote,
what causes he will support, what economic and political
philosophy he will espouse. It is one of the glories of the
profession that it admits of this freedom. Distinguished
examples can be cited of lawyers whose views were at
variance from those of their clients, lawyers whose skill
and wisdom make them valued advisers to those who had
little sympathy with their views as citizens." Professional
Responsibility: Report of the Joint Conference, 44 A.B.
A.J. 1159, 1217 (1958).
"No doubt some tax lawyers feel constrained to abstain
from activities on behalf of a better tax system because
they think that their clients may object. Clients have no
right to object if the tax adviser handles their affairs
competently and faithfully and independently of his private views as to tax policy. They buy his expert services,
not his private opinions or his silence on issues that gravely affect the public interest." Paul, The Lawyer as a Tax
Adviser, 25 Rocky Mt.L.Rev. 412, 434 (1953).
30
See ABA Canon 9.
31
Id.
32
See Professional Responsibility: Report of the Joint
Conference, 44 A.B.A.J. 1159, 1160 (1958).
33
"Without the participation of someone who can act
responsibly for each of the parties, this essential narrowing of the issues [by exchange of written pleadings or stipulations of counsel] becomes impossible. But here again
the true significance of partisan advocacy lies deeper, touching once more the integrity of the adjudicative process itself. It is only through the advocate's participation that
the hearing may remain in fact what it purports to be in
lawyer to his client and his duty to the legal system are the same: to represent his client zealously within the bounds of the law.34
EC 7-20 In order to function properly, our adjudicative process requires an informed, impartial
tribunal capable of administering justice promptly and efficiently 35 according to procedures that
command public confidence and respect. 38 Not only must there be competent, adverse presentation
of evidence and issues, but a tribunal must be
aided by rules appropriate to an effective and dignified process. The procedures under which tribunals operate in our adversary system have been
prescribed largely by legislative enactments, court
rules and decisions, and administrative rules.
Through the years certain concepts of proper professional conduct have become rules of law applicable to the adversary adjudicative process.
Many of these concepts are the bases for standards of professional conduct set forth in the Disciplinary Rules.
EC 7-21 The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole.
Threatening to use, or using, the criminal process
to coerce adjustment of private civil claims or controversies is a subversion of that process; 37 further, the person against whom the criminal process is so misused may be deterred from asserting
his legal rights and thus the usefulness of the civil
process in settling private disputes is impaired.
As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish
public confidence in our legal system.
EC 7-22 Respect for judicial rulings is essential
to the proper administration of justice; however,
a litigant or his lawyer may, in good faith and
theory : a public trial of the facts and issues. Each advocate comes to the hearing prepared to present his proofs
and arguments, knowing at the same time that his arguments may fail to persuade and that his proof may be rejected as inadequate. . . . The deciding tribunal, on
the other hand, comes to the hearing uncommitted. It
has not represented to the public that any fact can be
proved, that any argument is sound, or that any particular way of stating a litigant's case is the most effective expression of its merits." Professional Responsibility:
Report of the Joint Conference, 44 A.B.A.J. 1159, 1160-61
(1958).
34
Cf. ABA Canons 15 and 32.
35
Cf. ABA Canon 21.
36
See Professional Responsibility: Report of the Joint
Conference, 44 A.B.A.J. 1159, 1216 (1958).
37
"We are of the opinion that the letter in question
was improper, and that in writing and sending it respondent was guilty of unprofessional conduct. This court has
heretofore expressed its disapproval of using threats of
criminal prosecution as a means of forcing settlement of
civil claims. . . .
"Respondent has been guilty of a violation of a principle
which condemns any confusion of threats of criminal
prosecution with the enforcement of civil claims. For this
misconduct he should be severely censured." Matter of
Gelman, 230 App.Div. 524, 527, 245 N.Y.S. 416, 419 (1930).
UV
CODE OF PROFESSIONAL RESPONSIBILITY
within the framework of the law, take steps to
test the correctness of a ruling of a tribunal.38
conclusion with respect to any of the foregoing
matters.
EC 7-23 The complexity of law often makes it
difficult for a tribunal to be fully informed unless
the pertinent law is presented by the lawyers in
the cause. A tribunal that is fully informed on
the applicable law is better able to make a fair
and accurate determination of the matter before
it. The adversary system contemplates that each
lawyer will present and argue the existing law
in the light most favorable to his client. 39 Where
a lawyer knows of legal authority in the controlling jurisdiction directly adverse to the position of
his client, he should inform the tribunal of its existence unless his adversary has done so; but, having made such disclosure, he may challenge its
soundness in whole or in part.4°
EC 7-25 Rules of evidence and procedure are designed to lead to just decisions and are part of
the framework of the law. Thus while a lawyer
may take steps in good faith and within the framework of the law to test the validity of rules, he is
not justified in consciously violating such rules
and he should be diligent in his efforts to guard
against his unintentional violation of them. 42 As
examples, a lawyer should subscribe to or verify
only those pleadings that he believes are in compliance with applicable law and rules; a lawyer
should not make any prefatory statement before
a tribunal in regard to the purported facts of the
case on trial unless he believes that his statement
will be supported by admissible evidence; a lawyer should not ask a witness a question solely for
the purpose of harassing or embarrassing him*,
and a lawyer should not by subterfuge put before a jury matters which it cannot properly consider.
EC 7-24 In order to bring about just and informed decisions, evidentiary and procedural rules
have been established by tribunals to permit the
inclusion of relevant evidence and argument and
the exclusion of all other considerations. The expression by a lawyer of his personal opinion as
to the justness of a cause, as to the credibility of
a witness, as to the culpability of a civil litigant,
or as to the guilt or innocence of an accused is not
a proper subject for argument to the trier of
fact. 41 It is improper as to factual matters because admissible evidence possessed by a lawyer
should be presented only as sworn testimony. It
is improper as to all other matters because, were
the rules otherwise, the silence of a lawyer on
a given occasion could be construed unfavorably
to his client. However, a lawyer may argue, on
his analysis of the evidence, for any position or
38
"An attorney has the duty to protect the interests of
his client. He has a right to press legitimate argument
and to protest an erroneous ruling." Gallagher v. Municipal Court, 31 Ca1.2d 784, 796, 192 P.2d 905, 913 (1948).
"There must be protection, however, in the far more
frequent case of the attorney who stands on his rights and
combats the order in good faith and without disrespect
believing with good cause that it is void, for it is here
that the independence of the bar becomes valuable." Note,
39 Colum.L.Rev. 433, 438 (1939).
39
"Too many do not understand that accomplishment
of the layman's abstract ideas of justice is the function of
the judge and jury, and that it is the lawyer's sworn duty
to portray his client's case in its most favorable light."
Rochelle and Payne, The Struggle for Public Understanding, 25 Texas B.J. 109, 159 (1962).
40
"We are of the opinion that this Canon requires the
lawyer to disclose such decisions [that are adverse to his
client's contentions] to the court. He may, of course, after doing so, challenge the soundness of the decisions or
present reasons which he believes would warrant the court
in not following them in the pending case." ABA Opinion
146 (1935).
Cf. ABA Opinion 280 (1949) and Thode, The Ethical
Standard for the Advocate, 39 Texas L. Rev. 575, 585-86
(1961).
See ABA Canon 15.
"The traditional duty of an advocate is that he honorably uphold the contentions of his client. He should not
voluntarily undermine them." Harders v. State of California, 373 F.2d 839, 842 (9th Cir. 1967).
41
LV
EC 7-26 The law and Disciplinary Rules prohibit
the use of fraudulent, false, or perjured testimony
or evidence. 43 A lawyer who knowingly 44 participates in introduction of such testimony or evidence is subject to discipline. A lawyer should,
however, present any admissible evidence his client
desires to have presented unless he knows, or from
facts within his knowledge should know, that such
testimony or evidence is false, fraudulent, or perj ured.45
EC 7-27 Because it interferes with the proper administration of justice, a lawyer should not suppress evidence that he or his client has a legal obligation to reveal or produce. In like manner, a
lawyer should not advise or cause a person to
secrete himself or to leave the jurisdiction of a
tribunal for the purpose of making him unavailable as a witness therein.46
EC 7-28 Witnesses should always testify truthfully 47 and should be free from any financial inducements that might tempt them to do other42
43
See ABA Canon 22.
Id. Cf. ABA Canon 41.
See generally ABA Opinion 287 (1953) as to a lawyer's
duty when he unknowingly participates in introducing
perjured testimony.
44
45
"Under any standard of proper ethical conduct an
attorney should not sit by silently and permit his client
to commit what may have been perjury, and which certainly would mislead the court and the opposing party on
a matter vital to the issue under consideration. .
"Respondent next urges that it was his duty to observe
the utmost good faith toward his client, and therefore he
could not divulge any confidential information. This duty
to the client of course does not extend to the point of
authorizing collaboration with him in the commission of
fraud." In re Carroll, 244 S.W.2d 474, 474-75 (Ky. 1951).
46
See ABA Canon 5; cf. ABA Opinion 131 (1935).
47
Cf. ABA Canon 39.
CODE OF PROFESSIONAL RESPONSIBILITY
wise. 48 A lawyer should not pay or agree to pay
a non-expert witness an amount in excess of rei mbursement for expenses and financial loss incident to his being a witness; however, a lawyer
may pay or agree to pay an expert witness a reasonable fee for his services as an expert. But in
no event should a lawyer pay or agree to pay a
contingent fee to any witness. A lawyer should
exercise reasonable diligence to see that his client
and lay associates conform to these standards.49
EC 7-29 To safeguard the impartiality that is
essential to the judicial process, veniremen and
jurors should be protected against extraneous influences. 50 When impartiality is present, public
confidence in the judicial system is enhanced.
There should be no extrajudicial communication
with veniremen prior to trial or with jurors during
trial by or on behalf of a lawyer connected with
the case. Furthermore, a lawyer who is not connected with the case should not communicate with
or cause another to communicate with a venireman or a juror about the case. After the trial,
communication by a lawyer with jurors is permitted so long as he refrains from asking questions or making comments that tend to harass
or embarrass the juror 51 or to influence actions
of the juror in future cases. Were a lawyer to be
prohibited from communicating after trial with a
juror, he could not ascertain if the verdict might
be subject to legal challenge, in which event the
invalidity of a verdict might go undetected. 52 When
"The prevalence of perjury is a serious menace to the
administration of justice, to prevent which no means have
as yet been satisfactorily devised. But there certainly can
be no greater incentive to perjury than to allow a party
to make payments to its opponents witnesses under any
guise or on any excuse, and at least attorneys who are officers of the court to aid it in the administration of justice, must keep themselves clear of any connection which
in the slightest degree tends to induce witnesses to testify in favor of their clients." In re Robinson, 151 App.Div.
589, 600, 136 N.Y.S. 548, 556-57 (1912), aff'd, 209 N.Y. 354,
103 N.E. 160 (1913).
48
49 "It will not do for an attorney who seeks to justify
himself against charges of this kind to show that he has
escaped criminal responsibility under the Penal Law, nor
can he blindly shut his eyes to a system which tends to
suborn witnesses, to produce perjured testimony, and to
suppress the truth. He has an active affirmative duty to
protect the administration of justice from perjury and
fraud, and that duty is not performed by allowing his
subordinates and assistants to attempt to subvert justice
and procure results for his clients based upon false testimony and perjured witnesses." Id., 151 App.Div. at 592,
136 N.Y.S. at 551.
50
See ABA Canon 23.
t is unfair to jurors to permit a disappointed litigant to pick over their private associations in search of
something to discredit them and their verdict. And it
would be unfair to the public too if jurors should understand that they cannot convict a man of means without
risking an inquiry of that kind by paid investigators, with,
to boot, the distortions an inquiry of that kind can produce." State v. LaFera, 42 N.J. 97, 107, 199 A.2d 630, 636
(1964).
51 "[I]
52 ABA Opinion 319 (1968) points out that "[m]any courts
today, and the trend is in this direction, allow the testi-
an extrajudicial communication by a lawyer with
a juror is permitted by law, it should be made
considerately and with deference to the personal
feelings of the juror.
EC 7-30 Vexatious or harassing investigations of
veniremen or jurors seriously impair the effectiveness of our jury system. For this reason, a lawyer or anyone on his behalf who conducts an investigation of veniremen or jurors should act with
circumspection and restraint.
EC 7-31 Communications with or investigations
of members of families of veniremen or jurors by
a lawyer or by anyone on his behalf are subject
to the restrictions imposed upon the lawyer with
respect to his communications with or investigations of veniremen and jurors.
EC 7-32 Because of his duty to aid in preserving
the integrity of the jury system, a lawyer who
learns of improper conduct by or towards a venireman, a juror, or a member of the family of either
should make a prompt report to the court regarding such conduct.
EC 7-33 A goal of our legal system is that each
party shall have his case, criminal or civil, adjudicated by an impartial tribunal. The attainment of this goal may be defeated by dissemination of news or comments which tend to influence
judge or jury. 53 Such news or comments may
mony of jurors as to all irregularities in and out of the
courtroom except those irregularities whose existence can
be determined only by exploring the consciousness of a
single particular juror, New Jersey v. Kociolek, 20 N.J. 92,
118 A.2d 812 (1955). Model Code of Evidence Rule 301.
Certainly as to states in which the testimony and affidavits
of jurors may be received in support of or against a motion for new trial, a lawyer, in his obligation to protect
his client, must have the tools for ascertaining whether
or not grounds for a new trial exist and it is not unethical
for him to talk to and question jurors."
53
Generally see ABA Advisory Committee on Fair Trial
and Free Press, Standards Relating to Fair Trial and
Free Press (1966).
"[T]he trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court
official which divulged prejudicial matters . . See
State v. Van Dwyne, 43 N.J. 369, 389, 204 A.2d 841, 852
(1964), in which the court interpreted Canon 20 of the
American Bar Association's Canons of Professional Ethics
to prohibit such statements. Being advised of the great
public interest in the case, the mass coverage of the press,
and the potential prejudicial impact of publicity, the
court could also have requested the appropriate city and
county officials to promulgate a regulation with respect
to dissemination of information about the case by their
employees. In addition, reporters who wrote or broadcast prejudicial stories, could have been warned as to the
i mpropriety of publishing material not introduced in the
proceedings. . . . In this manner, Sheppard's right
to a trial free from outside interference would have been
given added protection without corresponding curtailment
of the news media. Had the judge, the other officers of
the court, and the police placed the interest of justice first,
the news media would have soon learned to be content
with the task of reporting the case as it unfolded in the
courtroom—not pieced together from extrajudicial statements." Sheppard v. Maxwell, 384 U.S. 333, 361-62, 16 L.
E.2d 600, 619-20, 86 S.Ct. 1507, 1521-22 (1966).
LVI
CODE OF PROFESSIONAL RESPONSIBILITY
lawyer and render appropriate accounts to his client regarding them.
(4) Promptly pay or deliver to the client
as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client
is entitled to receive.
DEFINITIONS*
As used in the Disciplinary Rules of the Code of
Professional Responsibility:
(1) "Differing interests" include every interest
that will adversely affect either the judgment or the loyalty of a lawyer to a client,
whether it be a conflicting, inconsistent, diverse, or other interest.
* "Confidence" and "secret" are defined in DR 4-101(A).
LXVII
(2) "Law firm" includes a professional legal
corporation.
"Person" includes a corporation, an association, a trust, a partnership, and any other
organization or legal entity.
"Professional legal corporation" means a
corporation, or an association treated as a
corporation, authorized by law to practice
law for profit.
"State" includes the District of Columbia,
Puerto Rico, and other federal territories
and possessions.
"Tribunal" includes all courts and all other
ad judicatory bodies.
"A bar association representative of the general bar" includes a bar association of specialists as referred to in DR 2-105(A) (1) or
(4).
CANONS OF JUDICIAL ETHICS *
With Amendments to January 1, 1968
Ancient Precedents.
"And I charged your judges at that time, saying Hear the causes between your brethren, and
judge righteously between every man and his
brother, and the stranger that is with him.
"Ye shall not respect persons in judgment; but
ye shall hear the small as well as the great; ye
shall not be afraid of the face of man; for the
judgment is God's; and the cause that is too hard
for you, bring it unto me, and I wil hear it"—
Deuteronomy, I, 16-17.
"Thou shalt not wrest judgment; thou shat
not respect persons, neither take a gift; for a
gift doth blind the eyes of the wise, and pervert
the words of the righteous."—Deuteronomy, XVI,
19.
"We will not make any justiciaries, constables,
sheriffs or bailiffs, but from those who understand
the law of the realm and are well disposed to observe it."—Magna Charta, XLV.
"Judges ought to remember that their office is
jus dicere not jus dare; to interpret law, and not
to make law, or give law." .
"Judges ought to be more learned than witty;
more reve-end than plausible; and more advised
than confident. Above all things, integrity is their
portion and proper virtue." . .
"Patience and gravity of hearing is an essential
part of justice; and an over speaking judge is no
well-tuned cymbal. It is no grace to a judge first
to find that which he might have heard in due
time from the Bar, or to show quickness of conceit in cutting off evidence or counsel too short;
or to prevent information by questions though
pertinent."
"The place of justice is a hallowed place; and
therefore not only the Bench, but the foot pare
and precincts and purprise thereof ought to be
preserved without scandal and corruption." .
—Bacon's Essay "Of Judicature."
Preamble.
In addition to the Canons for Professional Conduct of Lawyers which it has formulated and
adopted, the American Bar Association, mindful
* These Canons, to and including Canon 34, were adopted by
the American Bar Association at its Forty-S-venth Annual
Meeting, at Philadelphia, Pennsylvania, on July 9. 1924. The
Committee of the Association which prepared the Canons was
appointed in 1922, and composed of the following : William H.
Taft, District of Columbia, Chairman ; Leslie C. Cornish,
Maine; Robert von Moschzisker, Pennsylvania ; Charles A.
Boston. New York ; and Garret W. McEnerney, California.
George Sutherland, of Utah, originally a member of the Cummittee, retired and was succeeded by Mr. McEnerney. In 1923,
Frank M. Angellotti, of California, took the place .of Mr.
McEnerney.
Canons 28 and 30 were amended at the Fifty-Sixth Annual
Meeting, Grand Rapids, Michigan, August 30-September 1, 1933
Canon 28 was further amended at the Seventy-Third Annual'
Meeting, Washington, D. C., September 20. 1950. Canons 35
and 36 were adopted at the Sixtieth Annual Meeting, at Kansas
City, Missouri, September 30. 1937. Canon 35 was amended at
San Francisco. Calif., Sept. 1952.
Black's Law Dictionary 4th Ed. Rev.
that the character and conduct of a judge should
never be objects of indifference, and that declared
ethical standards tend to become habits of life,
deems it desirable to set forth its views respecting
those principles which should govern the personal
practice of members of the judiciary in the administration of their office. The Association accordingly adopts the following Canons, the spirit of
which it suggests as a proper guide and reminder
for judges, and as indicating what the people
have a right to expect from them.
1. Relations of the Judiciary.
The assumption of the office of judge casts
upon the incumbent duties in respect to his personal conduct which concern his re l ation to the state
and its inhabit'nts, the litigants before him, the
principles of law, the practitioners of law in his
court, and the witnesses, jurors and attendants
who aid him in the administration of its functions.
2. The Public Interest.
Courts exist to promote justice, and thus to
serve the public interest. Their administration
should be speedy and careful. Every judge should
at all times be alert in his rulings and in the conduct of the business of the court, so far as he can,
to make it useful to litigants and to the community. He should avoid unconsciously falling into
the attitude of mind that the litigants are made
for the courts instead of the courts for the litigants.
3. Constitutional Obligations.
It is the duty of all judges in the United States
to support the federal Constitution and that of
the state whose laws they administer; in so doing, they should fearlessly observe and apply
fundamental limitations and guarantees.
4. Avoidance of Impropriety.
A judge's official conduct should be free from
impropriety and the appearance of impropriety;
he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the
performance of judicial duties, but also in his
everyday life, should be beyond reproach.
5. Essential Conduct.
A judge should be temperate, attentive, patient,
i mpartial, and, since he is to administer the law
and apply it to the facts, he should be studious of
the principles of the law and diligent in endeavoring to ascertain the facts.
6. Industry.
A judge should exhibit an industry and application commensurate with the duties imposed upon
him.
LX IX
CANONS OF JUDICIAL ETHICS
7. Promptness.
A judge should be prompt in the performance
of his judicial duties, recognizing that the time
of litigants, jurors and attorneys is of value and
that habitual lack of punctuality on his part justifies dissatisfaction with the administration of the
business of the court.
8. Court Organization.
A judge should organize the court with a view
to the prompt and convenient dispatch of its business and he should not tolerate abuses and neglect
by clerks, and other assistants who are sometimes
prone to presume too much upon his good natured
acquiescence by reason of friendly association
with him.
It is desirable too, where the judicial system
permits, that he should cooperate with other
judges of the same court, and in other courts, as
members of a single judicial system, to promote
the more satisfactory administration of justice.
9. Consideration for Jurors and Others.
A judge should be considerate of jurors, witnesses and others in attendance upon the court.
10. Courtesy and Civility.
A judge should be courteous to counsel, especially to those who are young and inexperienced,
and also to all others appearing or concerned in
the administration of justice in the court.
He should also require, and so far as his power
extends, enforce on the part of clerks, court officers and counsel civility and courtesy to the court
and to jurors, witnesses, litigants and others having business in the court.
11. Unprofessional Conduct of Attorneys and
Counsel.
A judge should utilize his opportunities to criticise and correct unprofessional conduct of attor,
neys and counsellors, brought to his attention;
and, if adverse comment is not a sufficient corrective, should send the matter at once to the proper
investigating and disciplinary authorities.
13. Kinship or Influence.
A judge should not act in a controversy where
a near relative is a party; he should not suffer
his conduct to justify the impression that any
person can improperly influence him or unduly enjoy his favor, or that he is affected by the kinship, rank, position or influence of any party or
other person.
14. Independence.
A judge should not be swayed by partisan demands, public clamor or considerations of personal
popularity or notoriety, nor be apprehensive of
unjust criticism.
15. Interference in Conduct of Trial. '
A judge may properly intervene in a trial of
a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity,
but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his
part toward witnesses, especially those who are
excited or terrified by the unusual circumstances
of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the
truth in respect thereto.
Conversation between the judge and counsel in
court is often necessary, but the judge should be
studious to avoid controversies which are apt to
obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants, or witnesses, he should
avoid a controversial manner or tone.
He should avoid interruptions of counsel in their
arguments except to clarify his mind as to their
positions, and he should not be tempted to the unnecessary display of learning or a premature judgment.
16. Ex parte Applications.
A judge should discourage ex parte hearings
of applications for injunctions and receiverships
where the order may work detriment to absent
parties; he should act upon such ex parte applications only where the necessity for quick
action is clearly shown; if this be demonstrated,
then he should endeavor to counteract the effect
of the absence of opposing counsel by a scrupulous cross-examination and investigation as to
the facts and the principles of law on which the
application is based, granting relief only when
fully satisfied that the law permits it and the
emergency demands it. He should remember
that an injunction is a limitation upon the freedom of action of defendants and should not be
granted lightly or inadvisedly. One applying for
such relief must sustain the burden of showing
clearly its necessity and this burden is increased
in the absence of the party whose freedom of action is sought to be restrained even though only
temporarily.
12. Appointees of the Judiciary and Their Compensation.
Trustees, receivers, masters, referees, guardians and other persons appointed by a judge to
aid in the administration of justice should have
the strictest probity and impartiality and should be
selected with a view solely to their character and
fitness. The power of making such appointments
should not be exercised by him for personal or partisan advantage. He should not permit his appointments to be controlled by others than himself.
He should also avoid nepotism and undue favoritism in his appointments.
While not hesitating to fix or approve just
amounts, he should be most scrupulous in granting
Or approving compensation for the services or
17. Ex parte Communications.
charges of such appointees to avoid excessive alA judge should not permit private interviews,
lowances, whether or not excepted to or complained
arguments or communications designed to inof. He cannot rid himself of this responsibility by
fluence his judicial action, where interests to
the consent of counsel.
LXX
CANONS OF JUDICIAL ETHICS
be affected thereby are not represented before
him, except in cases where provision is made by
law for ex parte application.
While the conditions under which briefs of
argument are to be received are largely matters
of local rule or practice, he should not permit the
contents of such brief presented to him to be concealed from opposing counsel. Ordinarily all communications of counsel to the judge intended or
calculated to influence action should be made
known to opposing counsel.
18. Continuances.
Delay in the administration of justice is a common cause of complaint; counsel are frequently
responsible for this delay. A judge, without being arbitrary or forcing cases unreasonably or unjustly to trial when unprepared, to the detriment
of parties, may well endeavor to hold counsel to
a proper appreciation of their duties to the public
interest, to their own clients, and to the adverse
party and his counsel, so as to enforce due diligence in the dispatch of business before the court.
19. Judicial Opinions.
In disposing of controverted cases, a judge
should indicate the reasons for his action in an
opinion showing that he has not disregarded or
overlooked serious arguments of counsel. He
thus shows his full understanding of the case,
avoids the suspicion of arbitrary conclusion, promotes confidence in his intellectual integrity and
may contribute useful precedent to the growth of
the law.
It is desirable that Courts of Appeals in reversing cases and granting new trials should so indicate their views on questions of law argued before
them and necessarily arising in the controversy
that upon the new trial counsel may be aided to
avoid the repetition of erroneous positions of law
and shall not be left in doubt by the failure of the
court to decide such questions.
But the volume of reported decisions is such
and is so rapidly increasing that in writing opinions which are to be published judges may well
take this fact into consideration, and curtail them
accordingly, without substantially departing from
the principles stated above.
It is of high importance that judges constituting
a court of last resort should use effort and selfrestraint to promote solidarity of conclusion and
the consequent influence of judicial decision. A
judge should not yield to pride of opinion or value
more highly his individual reputation than that
of the court to which he should be loyal. Except in case of conscientious difference of opinion
on fundamental principle, dissenting opinions
should be discouraged in courts of last resort.
20. Influence of Decisions Upon the Development
of the Law.
A judge should be mindful that his duty is the
application of general law to particular instances,
that ours is a government of law and not of men,
and that he violates his duty as a minister of justice under such a system if he seeks to do what
he may personally consider substantial justice in
a particular case and disregards the general law
as he knows it to be binding on him. Such action may become a precedent unsettling accepted principles and may have detrimental consequences beyond the immediate controversy. He
should administer his office with a due regard to
the integrity of the system of the law itself, remembering that he is not a depositary of arbitrary power, but a judge under the sanction of law.
21. Idiosyncrasies and Inconsistencies.
Justice should not be moulded by the individual
idiosyncrasies of those who administer it. A judge
should adopt the usual and expected method of
doing justice, and not seek to be extreme or peculiar in his judgments, or spectacular or sensational in the conduct of the court. Though vested
with discretion in the imposition of mild or severe
sentences he should not compel persons brought
before him to submit to some humiliating act or
discipline of his own devising, without authority of
law, because he thinks it will have a beneficial corrective influence.
In imposing sentence he should endeavor to conform to a reasonable standard of punishment and
should not seek popularity or publicity either by
exceptional severity or undue leniency.
22. Review.
In order that a litigant may secure the full benefit of the right of review accorded to him by law,
a trial judge should scrupulously grant to the defeated party opportunity to present the questions
arising upon the trial exactly as they arose, were
presented, and decided, by full and fair bill of exceptions or otherwise; any failure in this regard
on the part of the judge is peculiarly worthy of
condemnation because the wrong done may be irremediable.
23. Legislation.
A judge has exceptional opportunity to observe
the operation of statutes, especially those relating
to practice, and to ascertain whether they tend to
i mpede the just disposition of controversies; and
he may well contribute to the public interest by advising those having authority to remedy defects of
procedure, of the result of his observation and experience.
24. Inconsistent Obligations.
A judge should not accept inconsistent duties;
nor incur obligations, pecuniary or otherwise,
which will in any way interfere or appear to interfere with his devotion to the expeditious and
proper administration of his official functions.
25. Business Promotions and Solicitations for
Charity.
A judge should avoid giving ground for any reasonable suspicion that he is utilizing the power or
prestige of his office to persuade or coerce others
to patronize or contribute, either to the success of
private business ventures, or to charitable enterprises. He should, therefore, not enter into such
private business, or pursue such a course of conduct, as would justify such suspicion, nor use the
power of his office or the influence of his name to
promote the business interests of others; he should
not solicit for charities, nor should he enter into
any business relation which, in the normal course
of events reasonably to be expected, might bring his
personal interest into conflict with the impartial
performance of his official duties.
I, XX I
CANONS OF JUDICIAL ETHICS
26. Personal Investments and Relations.
A judge should abstain from making personal
investments in enterprises which are apt to be involved in litigation in the court; and, after his
accession to the Bench, he should not retain such
investments previously made, longer than a period sufficient to enable him to dispose of them
without serious loss. It is desirable that he should,
so far as reasonably possible, refrain from all relations which would normally tend to arouse the suspicion that such relations warp or bias his judgment, or prevent his impartial attitude of mind in
the administration of his judicial duties.
He should not utilize information coming to him
in a judicial capacity for purposes of speculation;
and it detracts from the public confidence in his
integrity and the soundness of his judicial judgment for him at any time to become a speculative
investor upon the hazard of a margin.
27. Executorships and Trusteeships.
While a judge is not disqualified from holding
executorships or trusteeships, he should not accept or continue to hold any fiduciary or other position if the holding of it would interfere or seem
to interfere with the proper performance of his
judicial duties, or if the business interests of those
represented require investments in enterprises
that are apt to come before him judicially, or to
be involved in questions of law to be determined
by him.
28. Partisan Politics.*
While entitled to entertain his personal views
of political questions, and while not required to
surrender his rights or opinions as a citizen, it is
inevitable that suspicion of being warped by political bias will attach to a judge who becomes the
active promoter of the interests of one political
party as against another. He should avoid making
political speeches, making or soliciting payment of
assessments or contributions to party funds, the
public endorsement of candidates for political office and participation in party conventions.
He should neither accept nor retain a place on
any party committee nor act as party leader, nor
engage generally in partisan activities.
Where, however, it is necessary for judges to be
nominated and elected as candidates of a political
party, nothing herein contained shall prevent the
judge from attending or speaking at political gatherings, or from making contributions to the campaign funds of the party that has nominated him
and seeks his election or re-election.
29. Self-Interest.
A judge should abstain from performing or taking part in any judicial act in which his personal
interests are involved. If he has personal litigation in the court of which he is judge, he need not
resign his judgeship on that account, but he
should, of course, refrain from any judicial act
in such a controversy.
30. Candidacy for Office.**
A candidate for judicial position should not make
or suffer others to make for him, promises of conduct in office which appeal to the cupidity or prejudices of the appointing or electing power; he
should not announce in advance his conclusions of
law on disputed issues to secure class support, and
he should do nothing while a candidate to create
As amended August 31, 1933 and September 20, 1950.
** As amended August 31, 1933.
the impression that if chosen, he will administer
his office with bias, partiality or improper discrimination.
While holding a judicial position he should not
become an active candidate either at a party primary or at a general election for any office other
than a judicial office. If a judge should decide to
become a candidate for any office not judicial, he
should resign in order that it cannot be said that
he is using the power or prestige of his judicial position to promote his own candidacy or the success
of his party.
If a judge becomes a candidate for any judicial
office, he should refrain from all conduct which
might tend to arouse reasonable suspicion that he
is using the power or prestige of his judicial position to promote his candidacy or the success of his
party.
He should not permit others to do anything in
behalf of his candidacy which would reasonably
lead to such suspicion.
31. Private Law Practice.
In many states the practice of law by one holding judicial position is forbidden. In superior
courts of general jurisdiction, it should never be
permitted. In inferior courts in some states, it is
permitted because the county or municipality is
not able to pay adequate living compensation for
a competent judge. In such cases one who practises law is in a position of great delicacy and must
be scrupulously careful to avoid conduct in his
practice whereby he utilizes or seems to utilize his
judicial position to further his professional success.
He should not practise in the court in which he
is a judge, even when presided over by another
judge, or appear therein for himself in any controversy.
If forbidden to practise law, he should refrain
from accepting any professional employment while
in office.
He may properly act as arbitrator or lecture upon or instruct in law, or write upon the subject,
and accept compensation therefor, if such course
does not interfere with the due performance of his
judicial duties, and is not forbidden by some positive provision of law.
32. Gifts and Favors.
A judge should not accept any presents or favors
from litigants, or from lawyers practising before
him or from others whose interests are likely to
be submitted to him for judgment.
33. Social Relations.
It is not necessary to the proper performance
of judicial duty that a judge should live in retirement or seclusion; it is desirable that, so far as
reasonable attention to the completion of his work
will permit, he continue to mingle in social intercourse and that he should not discontinue his interest in or appearance at meetings of members of
the Bar. He should, however, in pending or prospective litigation before him be particularly careful to avoid such action as may reasonably tend
to awaken the suspicion that his social or business
relations or friendships constitute an element in influencing his judicial conduct.
34. A Summary of Judicial Obligation.
In every particular his conduct should be above
reproach. He should be conscientious, studious,
thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, regardless of
LXXII
CANONS OF JUDICIAL ETHICS
public praise, and indifferent to private political
or partisan influences; he should administer justice according to law, and deal with his appointments as a public trust; he should not allow other
affairs or his private interests to interfere with
the prompt and proper performance of his judicial
duties, nor should he administer the office for the
purpose of advancing his personal ambitions or
increasing his popularity.
Provided that this restriction shall not apply to
the broadcasting or televising, under the supervision of the court, of such portions of naturalization proceedings (other than the interrogation of
applicants) as are designed and carried out exclusively as a ceremony for the purpose of publicly
demonstrating in an impressive manner the essential dignity and the serious nature of naturalization.
35. Improper Publicizing of Court Proceedings.*
Proceedings in court should be conducted with
fitting dignity and decorum. The taking of photo
graphs in the court room, during sessions of the
court or recesses between sessions, and the broadcasting or televising of court proceedings detract
from the essential dignity of the proceedings, distract participants and witnesses in giving testimony, and create misconceptions with respect
thereto in the mind of the public and should not
be permitted.
36. Conduct of Court Proceedings.*
Proceedings in court should be so conducted as
to reflect the importance and seriousness of the
inquiry to ascertain the truth.
The oath should be administered to witnesses
in a manner calculated to impress them with the
importance and solemnity of their promise to adhere to the truth. Each witness should be sworn
separately and impressively at the bar or the court,
and the clerk should be required to make a formal
record of the administration of the oath, including
the name of the witness.
* Adopted September 30, 1937 ; amended September 15, 1952
and February 5, 1963.
I,XXII I
* Adopted September 30, 1937.
MINIMUM REQUIREMENTS
FOR ADMISSION TO LEGAL PRACTICE
IN THE UNITED STATES *
This table contains information of educational and residence requirements
reported November 1, 1970. Full information and subse q uent changes, if
any, may be obtained by writing to the Clerk of the highest appellate
Court or the Secretary of the Bar Board in each state. The compilation
following does not reflect changes which may become effective on or after
January 1, 1971.
Originally published in the Review of Legal Education, Fall 1970 and re p rinted with the permission of the
American Bar Association and its Section of Legal Education and Adm4ssions to the Bar.
LXXV
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BLACK'S
DICTIONARY OF LAW
FOURTH EDITION
A. The first letter in the English and most other
alphabets derived from the Roman or Latin alphabet, which was one of several ancient Italian
alphabets derived from the Greek, which was an
adaptation of the Phoenician. The first letter in
the Phoenician alphabet was called aleph, meaning "ox", which is also the meaning of the first
letter in the Greek alphabet, alpha.
made the nundinal letter change every year, but
if the nundinal letter for a given year was, for
example, A, the market day always coincided with
A, which was the ninth day from the preceding
market day, both inclusive. No judgment could
be pronounced, nor assemblies of the people held,
on these days, but this was changed by the lex
Hortensia in 246 B.C. Proposed laws were posted, and a vote could not be taken until three Roman weeks (trinum nundinum), or 24 days, had
elapsed. A judgment debtor had 30 days to satisfy judgment against him. If he failed to do so,
he was seized and taken before the magistrate
and if he could find no surety he was put in
chains and held by the judgment creditor for 60
days, during which time the amount of his debt
was proclaimed on three successive market days,
and then if he failed, the XII Tables provided:
Alpha and the second letter of the Greek alphabet, beta, were combined to form "alphabet,"
which is largely the same in different languages.
In Danish, Dutch, Polish and Swedish alfabet;
in English, German and French, alphabet; in
Italian, Portuguese and Spanish, alfabeto; in
Russian, alfabetli, etc. This striking similarity
shows borrowing, either mediately or immediately, from the same source.
"* * * Tertiis nundinus partis secanto; si plus
A has several different forms, the most curious
of which is little a and big A. All of our letters
were first capitals, and remained so for a long
time. Then small letters alone were used for
centuries. Later capitals were used with small
letters, largely for ornamental purposes. The ancient Egyptians had twenty a's to choose from,
and it is said that a is the initial letter of about
one-seventh of all Armenian words.
minusive secuerint, se fraude esto."
( On the
third market day let him be cut into pieces; if
any one [any creditor] cut more or less than his
share, it shall not be a crime). Shylock, it will be
remembered, had to cut just a pound of flesh
and no more.
Dominical or Sunday Letters
A is also the first of the Dominical or Sunday
Nundinal Letters
A is also the first of the nundinal letters consisting of the first eight letters of the alphabet.
These letters were repeated successively from the
first to the last day of the year by the Romans
and every ninth day was market day, when the
country people came into the city to buy and sell
and to attend to their private or religious affairs.
However, no market day could coincide with the
first day of January or the ninth day of the other
months. The first market day of the year fell
eight days from the preceding market day, which
Black's Law Dictionary Revised 4th Ed.-1
letters, consisting of the first seven letters of the
alphabet, which were introduced to replace the
nundinal letters of the Romans. These letters,
repeated successively from the first to the last day
of the year, show the order of Sundays according
to the Christian calendar. If the first day of
January is on Sunday, all the rest of the days designated by A will also be Sundays. Since each
common year ends on the same day of the week
that it begins, the dominical letters change each
year in retrogression. If the year is a leap year
an adjustment is made either on the 25th or 29th
1
of February. The dominical letters are used to
determine the date of Easter but may also be used
to determine the day of the week on which a
given date falls in any year.
of the relative minor scale. To this note all orchestral instruments are tuned. A also indicates
the key in which many great pieces of music are
composed. The money coined at the Paris mint
is marked with an A, and it was long supposed
that such coinage was superior to that of the provincial mints. This gave rise to the phrase Etre
marque a l'A (to be marked with an A) and was
used to indicate a man of eminent rank or merit,
just as we use A-1 or A to indicate excellence of
either persons or commodities.
A is also used in numerous other phrases and
proverbs. For example, A word to the wise is
sufficient.
This ordinarily admonitory proverb
was held to be libellous in view of the context in
which it was used. One who had sold out to his
partner warned customers that the buyer was not
responsible for his debts, since he was a minor,
and that "a word to the wise is sufficient." The
court said: "But when what was previously said
is followed by the significant and proverbially pre.
cautionary words—`A word to the wise is sufficient,' the idea is at once conveyed that plaintiff,
is wanting in honor and integrity as a business
man, and that those who should deal with him
would suffer loss." Hays v. Mather, 15 Ill.App.
30, 34. For the phrase, from alpha to omega,
there is our from A to Z and A to izzard, and the
German von A bis Z, which mean from beginning
to end; completely; thoroughly; or in more
modern slang, from soup to nuts. The German
proverb Wer A sagt, mus auch B sagen is based
on a profound knowledge of human nature, and
translates, you can't say A without saying B; in
for a penny, in for a pound. In other words,
don't take the first step if you don't want to go
the limit. Of a very ignorant or stupid person
it has long been said that He does not know
great A from a bull's foot or that he knows ni A
ni B (neither A nor B). In Birds of a feather
flock together, a means the same, or a feather
means the same kind.
A as Symbol
Both as a symbol and as an abbreviation, A is
used in every phase of human activity and learning. In law, commerce, manufacturing, engineering, printing, music, medicine, geometry, mathematics, physics, chemistry, logic, philosophy, aeronautics, artillery, etc., these devices, which are
meaningless to the unitiated, simply could not be
dispensed with. The Puritans first burned A on
the forehead of the adulterer,—or at least on that
of the adulteress!—and later fastened it on the
sinner's clothing. The Roman judges used three
wax-covered wooden tables. On one was inscribed A for Absolvo (I acquit) ; on the second
C for Condemn° (I condemn), and on the third
N. L. for Non liquet (It is not clear). When a
proposed law was to be voted on, Roman voters
received two tablets, on one of which was inscribed A for antiquo (for the old law), and on
the other U. R. for Uti rogas (as you ask). A is
also the first of the letters employed by the Semites and the ancient Greeks as numeral signs.
If the Greek a was accented above, it stood for 1;
if below, it stood for 1000. The Romans also used
A as a numeral sign before they adopted the letter D. If A was not accented, it stood for 500,
but if accented thus, A, it stood for 5000.
The symbol is a graphic modification of the
Latin ad, meaning "at" or "to". Some European
railroads use A to designate first class railroad
coaches. In European tourist guides A is used
to designate places where there are hotels able
to satisfy the wants of motorists. Mercantile
agencies use A to indicate the highest commercial
credit. A is also the highest mark given by teachers to pupils. Ship registries in United States,
England, Germany and Norway use A to indicate
the highest class of vessel.
In the record of American Shipping Al stands
for a first-class vessel of the highest seaworthiness, the lower degrees being expressed by Al 1/2,
etc., A3 being the lowest. In Lloyd's Register
Al means a first-class vessel. A printed in red
means an over-aged vessel. ZE a third-class vessel. The broad A means an iron ship. The description of a ship as "Al" amounts to a warranty. 011ive v. Booker, 1 Exch. 423.
In ceramics A has various meanings. On fine
old Sevres A alone shows that the piece was made
in 1753, whereas AA shows that it was made in
1777. A is also used as a brand by certain breeders of bulls for the bull ring, as well as by manufacturers of fine Toledo swords. A denotes the
first of a series, and is used to distinguish the
first page of a folio from the second, which is
marked b (Coke, Litt. 114a, 114b), as well as the
first foot-note and the first section or subsection
in statutes. It is also the name of the sixth note
of the natural diatonic scale of C, or the first note
A as Abbreviation
As an abbreviation a, either alone or in combination with other letters, is used in all the arts
and sciences as well in hundreds of non-technical
ways. Its meaning as an abbreviation largely depends on context. In common usage, it may mean
about, accepted, acne, aged, answer, ante, area,
amateur, etc. It is also used for almost any name
of a person beginning with A, as Alfred, Anna,
etc. In chemistry it stands for argon. A note
p. a." The court said:
provided for "Int. @
"The letter when used in a note, as it is here,
is known and recognized among commercial people and businessmen as standing for 'at.'" Belford v. Beatty, 34 N.E. 254, 255, 145 Ill. 414, 418.
A is an abbreviation of adversus (against).
Versus and its abbreviation v. are much oftener
used in this sense, though the original Latin
meaning of versus is toward; in the direction of.
A, angstrom unit; the unit for measuring the
length of light waves.. The ultra violet rays of
sunlight between 3130A and 2900A activate pro2
A
A as Indefinite Article
A is the form of the indefinite article that is
used before consonants and initial consonant
sounds, on being used before initial vowel sounds,
as, for example, a house, a year, a utility; but an
oak, an ape and an hour, because the h is silent.
.Formerly where the initial h of certain words was
not accented, as historical, hypothetical, hotel,
humble, etc., an was used, but now the h is no
longer silent, and the best usage in both the United States and England is to use a before such
words. A hypothetical question, a historical monument, a hotel, etc., are the correct forms.
vitamins in the skin and certain foods, so as to
produce the antirachitic substance known as vitamin D, which is also extracted from fish liver
oils.
The Spelling of A
A was formerly spelt a-per-se, a ("a" by itself
makes the word "a") of which A-per-se-A, A persey, and apersie were corruptions and synonymous with superior, chief, first, etc.
A in Latin and Law Latin
Anglo-American law abounds in Latin and
French words and phrases, and the use of A in
these languages is important to the Englishspeaking lawyer. In Latin "A" was used both as
an abbreviation and as a symbol. For example
"A" was an abbreviation for "Aulus,". a praenomen, or the first of the usual three names of a
person by which he was distinguished from others
of the same family; also for "ante" in "a. d.,"
ante diem (before the day), and for "anno" (year)
in a. u. c., anno urbis conditae (the year of the
building of the city) and in anno ab urbe condita
(from the year of the building of the city). As a
preposition, the form was either A, AB or ABS.
A was used before consonants; ab was usually
used before vowels, but sometimes before consonants, whereas abs was used before "c" or "t."
The meaning was "from," "away from," "on the
side of," "at," "after," "since," "by," "by means
of," "out of," "with reference to," "in regard of,"
"near by," and "along." For example, A fronte
in front; ab tergo, from behind; a puertitia,
from youth; ab sole orbe, from or at sunrise; ab
intestato, without a will, intestate. In law Latin,
"a" means "by," "with," "from," "in," "of," and
"on," and AB means "by," "from," and "in". 1
C.J.S. p. 2.
The word "a" has varying meanings and uses.
"A" means "one" or "any," but less emphatically
than either. It may mean one where only one is
intended, or it may mean any one of a great number. It is placed before nouns of the singular
number, denoting an individual object or quality
individualized. First Trust Joint Stock Land
Bank of Chicago v. Armstrong, 222 Iowa 425, 269
N.W. 502, 506, 107 L.R.A. 873.
The article "a" is not necessarily a singular
term; it is often used in the sense of "any" and is
then applied to more than one individual object.
Philadelphia & R. R. Co. v. Green & Flinn, 2 W.W.
Harr. (Del.) 78, 119 A. 840, 846; In re Sanders,
54 Law J.Q.B. The article "a" is not generally
used in a singular sense unless such an intention
is clear from the language of the statute, 1 C.J.S.,
A, p. 1, but statute providing that parties to "a"
reorganization shall be deemed a single employing unit referred to quality or nature of changes,
rather than quantity, and meant not one or only
one, but any, and fact that there had been more
than one reorganization did not prevent statute
from applying. Lindley v. Murphy, 387 Ill. 506,
56 N.E.2d 832, 838. So under a statute providing
that the issuance of "a" certificate to one carrier
should not bar a certificate to another over the
same route, a certificate could be granted to more
than two carriers over the same route. State ex
rel. Crown Coach Co. v. Public Service Commission, 238 Mo.App. 287, 179 S.W.2d 123, 127. But the
meaning depends on context. For example, in
Workmen's Compensation Act, on, or in or about
"a" railway, factory, etc., was held not to mean
any railway, factory, etc., but the railway, factory, etc., of the employer. Francis v. Turier,
[1900] 1 Q.B. 478; 69 L.J.Q.B. 182; 81 L.T. 770; 48
W.R. 228; 64 J.P. 53.
Insurance against loss occasioned by "a sea" did
not limit insured to loss occasioned by a single
wave, but covered losses occasioned by heavy
waves during voyage. Snowden v. Guion, 101 N.
Y. 458, 5 N.E. 322.
A in French and Law French
In French A is a preposition, the meaning of
which largely depends on context. It is usually
translated as "into," "at," "to," "in," "by," "of,"
"with," "on," "from," "for," "under," "till," "within," "between," etc. It also changes into au and
aux when combined with "the." A is also the
third person, singular number, present tense, indicative mood of the verb avoir, (to have) : Il a
(he has). In law French "a" is used as a preposition meaning "at," "for," "in," "of," "on," "to,"
and "with." 1 C.J.S. p. 2.
A in Roman Criminal Law
Among the Romans this letter was used in criminal trials. The judges were furnished with
small tables covered with wax, and each one inscribed on it the initial letter of his vote: A (absolvo) when he voted to acquit the accused; C
(condemno) when he was for condemnation; and
N L (non liquet), when the matter did not appear
clearly, and he desired a new argument.
The letter A (i. e. antiquo, "for the old law")
was inscribed upon Roman ballots under the Lex
Tabellaria, to indicate a negative vote; Tayl.Civ.
Law, 191, 192.
In State ex rel. Atty. Gen. v. Martin, 60 Ark. 343, 30 S.
W. 421, 28 L.R.A. 153, the state Constitution provided for
"a judge" in each circuit. Owing to increase in judicial
business, the Legislature provided for an additional judge
for the sixth circuit. It was contended that the statute
was unconstitutional. The court said:
"Now, the adjective 'a,' commonly called the 'indefinite
article,' and so called, too, because it does not define any
particular person or thing, is entirely too indefinite, in
the connection used, to define or limit the number of
3
A
judges which the legislative wisdom may provide for the
judicial circuits of the state. And it is perfectly obvious
that its office and meaning was well understood by the
framers of our constitution, for nowhere in that instrument do we find it used as a numerical limitation. It is
insisted that if 'a' does not mean 'one,' and 'but one,' in
the section quoted, then the way is open for a latitudinarian construction in the various other sections where it
occurs.
" * • * So the question recurs as to the significance
of the letter 'a,' for the convention must be taken to have
meant what they have plainly said. It performs precisely
the same office here as in every other section where it
occurs. Section 6 of the article 7 says, 'A judge of the
supreme court shall be learned in the law,' etc. ; section
16 says, 'A circuit judge shall be learned in the law,' etc. ;
section 41, 'A justice of the peace shall be a qualified
elector and a resident of the township,' etc. Does the
word 'a' in these sections mean one, and only one, judge
or justice? If so, which one ? In the same section in
which 'a judge' occurs we find. `He shall be "a" conservator of the peace within the circuit.' Does 'a conservator'
mean that he is to be the only conservator of the peace for
the circuit? If so, this provision is plainly in conflict with
others. See sections 4, 40. It is apparent that 'a' was used
before the word 'judge' in the section under consideration
because, according to our English idiom, the sentence
could not have been euphoniously expressed without it. In
some languages—the Latin and Russian, for instance—it
would not have been used at all. It could have been omitted without in the least impairing the sense, and its use
gave no additional force or meaning to the sentence. To
use the illustration of the learned counsel for the state:
If one orders 'a sack of flour, a ham, a horse, a ton of
coal,' etc., it is understood he means but one. So it would
be understood if he left off the 'a,' and said 'sack of flour,
ham, horse, ton of coal,' the 'a' being used before the
words beginning with the consonant sound simply to preserve the euphony. If the limitation is not in the word
'judge' without the 'a,' there is certainly no restriction
with it. According to Mr. Webster, 'a' means 'one' or
'any,' but less 'emphatically than either.' It may mean
one where only one is intended, or it may be any one of
a great number. That is the trouble. Of itself, it is in
no sense a term of limitation. If there were a dozen
judges in any one circuit each would still be 'a judge' for
that circuit. Mr. Webster also says, 'It is placed before
nouns of the singular number, denoting an individual
object, or quality individualized.' 'Quality' is defined as
(1) 'the condition of being of such a sort as distinguished
from others; (2) special or temporary character; profession, occupation.' Webst. Dict. The 'a' was so used here.
The character, or profession, individualized, was that of a
judge. The functions of the office to be performed were
those of 'a judge,' not governor, sheriff, or constable. A
review of the various other provisions of the constitution,
supra, where the word 'a' occurs, shows that no absurd
consequences, such as filling the offices in other departments with a multitudinous array of incumbents, could
possibly result."
narily distinguishable. Howell v. , State, 138 S.E.
206, 164 Ga. 204. The grant of "a" right of sporting on land, gives only a concurrent right, but
the grant of "the" right gives it exclusively.
Sutherland v. Heathcote, [1892] 1 Ch. 475; 61 L.J.
248; 66 L.T. 210. And a license to fish with "a"
rod and line does not justify the use of more than
one rod and one line. Combridge v. Harrison, 72
L.T. 592; 64 L.J.M.C. 175; 59 J.P. 198.
Hinson v. Hinson, 176 N.C. 613, 97 S.E. 465, involved a will providing that son taking care of
widow should receive $100 "a year." It was held
that the quoted words were not synonymous with
annually, but merely fixed the rate of compensation, and that there was no right to compensation
until widow's death.
AAA. Agricultural Adjustment Act.
A. A. C. Anno ante Christum, the year before
Christ.
A. A. C. N. Anno ante Christum natum, the year
before the birth of Christ.
A AVER ET TENER. L. Fr. (L. Lat. habendurn
et tenendum.) To have and to hold. Co.Litt. §§
523, 524. A aver et tener a luy et a ses heires, a
touts fours,—to have and to hold to him and his
heirs forever. Id. § 625. See Aver et Tener.
A. B. Able-bodied seaman. In English law a seaman is entitled to be rated A. B. when he has
served at sea three years before the mast. In the
United States the term "Able Seaman" is used.
For the requirements of able seaman, see 46 U.S.
C.A. § 672. Also artium baccalaureus, bachelor of
arts. In England, generally written B. A.
A. B. A. American Bar Association.
A. B. A. J. American Bar Association Journal.
A BON DROIT. With good reason; justly; rightfully.
A. C., Anno Christi, the year of Christ.
A/C means account and is much used by bookkeepers. As used in a check, it has been held not
a direction to the bank to credit the amount of
the check to the person named, but rather a memorandum to identify the transaction in which the
check was issued. Marsh v. First State Bank &
Trust Co. of Canton, 185
29, 32.
Where the law required the delivery of a copy
of a notice to husband and a copy to wife, the
sheriff's return that he had delivered "a copy" to
husband and wife was insufficient. State v. Davis, Tex.Civ.App., 139 S.W.2d 638, 640.
In Lakeside Forge Co. v. Freedom Oil Works, 265 Pa.
528, 109 A. 216, 217, it was said :
" 'A car or two' signifies an indefinite small number,
and may include as many as seven. In that respect the
expression is similar to 'a few.' It must be construed
with reference to the subject matter, and is not necessarily
confined to one or two. It is like the words 'in a day or
two.' "
In Deutsch v. Mortgage Securities Co., 96 W.Va. 676, 123
S.E. 793, the deed contained a covenant against construction of flats or apartments and provided that no dwelling
but "a one-family house" should be built on the lot. The
grantee built two one-family dwelling houses; and it was
held that he could properly do so.
A CANCELLANDO. From cancelling. 3 Bl.
Comm. 46.
A CANCELLIS, The Chancellor.
A CANCELLIS CURIAE EXPLODI. To be expelled from the bar of the court.
A CAPELLA OR A LA CAPELLA. In music, in
the church style; also that the instruments are
to play in unison with the vocal part, or that one
part is to be played by a number of instruments.
"A" is sometimes read as "the." Bookham v.
Potter, 37 L.J.C.P. 276; L.R. 3 C.P. 490; 16 W.R.
806; 18 L.T. 479, though the two terms are ordi-
A CAUSA DE CY. For this reason.
4
A LATERE
A DATU. Law Latin. From the date. Anonymous, 1 Ld.Raym. 480; Haths v. Ash, 2 Salk. 413.
See A Dato.
A. C. C. Agricultural Credit Corporation.
A CE. For this purpose.
A CEL JOUR. At this day.
A DIE CONFECTIONIS. From the day of the
making. Barwick's Case, 5 Coke 93b.
A CELO USQUE AD CENTRUM. From the
heavens to the center of the earth. Or more
fully, Cujus est solum ejus est usque ad coelum et
ad inferos. The owner of the soil owns to the
heavens and also to the lowest depths. Or, Cujus
est solum est usque ad cceium,—the owner of the
soil owns to the heavens. This doctrine has been
questioned. Butler v. Frontier Telephone Co., 186
N.Y. 486, 79 N.E. 716, 11 L.R.A.,N.S., 920—and
the flight of airplanes and recent oil and gas regulations undoubtedly have qualified the owner's
dominion not only in the heavens but in the lowest
depths. See American Digest System, Mines and
Minerals, C=. 92, and Trespass, 010.
A DIE DATUS. From the day of the date. Hatter v. Ash, 1 Ld.Raym. 84; Anonymous, 1 Ld.
Raym. 480; Seignorett v. Noguire, 2 Ld.Raym.
1241. Used in leases to determine the time or
running of the estate, and when so used includes
the day of the date. Doe v. Watkins, 1 Cowp.
189, 191. But contra, see Haths v. Ash, 2 Salk.
413.
A DIGNIORI FIERI DEBET DENOMINATIO.
Denomination ought to be from the more worthy.
The description (of a place) should be taken from
the more worthy subject (as from a will). Fleta,
lib. 4, c. 10, § 12.
A COMMUNI OBSERVANTIA NON EST RECEDENDUM. From common observance there
should be no departure; there must be no departure from common usage. 2 Coke, 74; Co.
Litt. 186a, 229b, 365a; Wing.Max. 752, max. 203.
A maxim applied to the practice of the courts, to
the ancient and established forms of pleading and
conveyancing, and to professional usage generally. Id. 752-755. Lord Coke applies it to common
professional opinion. Co.Litt. 186a, 364b.
A DIGNIORI FIERI DEBET DENOMINATIO ET
RESOLUTIO. The title and exposition of a thing
ought to be derived from, or given, or made with
reference to, the more worthy degree, quality, or
species of it. Wing.Max. 265, max. 75.
A. E. C. Atomic Energy Commission.
A FINE FORCE. Of pure necessity.
A FORCE. Of necessity.
A CONFECTIONE. From the making. Clayton's Case, 5 Coke, pt. II, la; Anonymous, 1 Ld.
Raym. 480.
A FORCE ET ARMIS. With force and arms.
A FORFAIT ET SANS GARANTIE. In French
law. A formula used in indorsing commercial
paper, and equivalent to "without recourse."
A CONFECTIONE PRAESENTIUM. From the
making of the indentures. Clayton's Case, 5
Coke, pt. II, la.
A CONSILIIS. (Lat. consilium, advice.) Of
counsel; a counsellor. The term is used in the
civil law by some writers instead of a responsis.
Spelman, "Apocrisarius."
A FORTIORI. With stronger reason; much
more. A term used in logic to denote an argument to the effect that because one ascertained
fact exists, therefore another, which is included
in it, or analogous to it, and which is less improbable, unusual, or surprising, must also exist.
A CONTRARIO SENSU. On the other hand; in
the opposite sense.
A GRATIA. By grace; not of right.
A. H., Anno Hegirae (in the year of the hegira).
A CUEILLETTE. In French law. In relation to
the contract of affreightment, signifies when the
cargo is taken on condition that the master succeeds in completing his cargo from other sources.
Arg.Fr.Merc.Law, 543.
A ISSUE. At issue.
A JURE SUO CADUNT. They (for example, persons abandoning chattels) lose their right.
A JUSTITIA (QUASI A QUODAM FONTE) OMNIA JURA EMANANT. From justice, as a fountain, all rights flow. Brae. 2 b.
A. D. Anno Domini, in the year of our Lord.
An information charging that act was committed on 4th
day of August, "A. D. 190 ," alleged an impossible year
"and it is quite evident that the last figure of the year
was inadvertently omitted but what that figure was
intended to be * * * cannot be inferred with any certainty." People v. Weiss, 168 Ill.App. 502, 504.
"The information alleges that the offense therein sought
to be charged was committed 'on the 30th day of April, A.
D. 19 .' There is no other allegation of time in the inforformation, and it Is in effect and for all practical purposes
wholly wanting in any allegation as to time. The time
alleged is impossible and in that respect the information
is absurd. The objection is not merely technical, as that
term is commonly used, but is substantial and fatal." People v. Wagner, 172 Ill.App. 84,
A LA GRANDE GREVAUNCE. To the great
grievance.
A LARGE. Free; at large.
A LATERE. Lat. Collateral. Used in this sense
in speaking of the succession to property. Bract.
20b, 62b. From, on, or at the side; collaterally.
A latere ascendit ( jus). The right ascends collaterally. Justices of the Curia Regis are described as a latere regis residentes, sitting at the
side of the King; Bract. fol. 108a; 2 Reeve, Hist.
Eng.L. 250.
A DATO. From the date. Cro.jac. 135. See A
Datu.
5
A LATERE
In Civil Law and by Bracton, a synonym for e
transverso, across. Bract. fol. 67a.
Applied also to a process or proceeding. Keilw.
159. Out of the regular or lawful course; incidentally or casually. Bract. fol. 42b; Fleta, lib.
3, c. 15, § 13.
From the side of; denoting closeness of intimacy or connection; as a court held before auditors specialiter a latere regis destinatis. Fleta,
lib. 2, c. 2, § 4.
Apostolic; having full powers to represent the
Pope as if he were present. Du Cange, Legati,
a latere; 4 Bla.Com. 306.
A NON POSSE AD NON ESSE SEQUITUR ARGUMENTUM NECESSARIE NEGATIVE, LICET
NON AFFIRMATIVE. A literal translation—
From impossibility to non-existence the inference
follows necessarily in the negative, though not in
the affirmative—is as ambiguous as the original.
It could be translated thus: The negative inference of non-existence necessarily follows from impossibility of existence, but the affirmative inference of existence cannot be drawn from mere possibility.
A LIBELLIS. L. Lat. An officer who had charge
of the libelli or petitions addressed to the sovereign. Calvin. A name sometimes given to a
chancellor, (cancellarius,) in the early history of
that office. Spelman, "Cancellarius."
A OUTRANCE. To the bitter end; to excess;
A L'IMPOSSIBLE NUL N'EST TENU. No one is
bound to do the impossible.
A PAIS. To the country; at issue.
A. 0. C. Anno orbis conditi, the year of the creation of the world.
to the utmost extent. Frequently incorrectly
written by persons with only a smattering of
French a l'outrance.
A PALATIO. L. Lat. From Palatium, (a palace.) Counties palatine are hence so called. 1
Bl.Comm. 117. See Palatium.
A LOUR FOY. In their allegiance.
A LUY ET A SES HEIRES A TOUTS JOURS.
To him and to his heirs forever.
A. P. C. Alien Property Custodian.
A. M. Ante meridiem, before noon. Only the
abbreviation is ordinarily used. Orvik v. Casselman, 105 N.W. 1105, 15 N.D. 34. Also artium
magister, master of arts. Also annus mirabilis,
the wonderful year-1666, the year of the defeat
of the Dutch fleet and of the great London fire.
Also anno mundi, in the year of the world; that
is, when the creation of the world is said to have
taken place, 4004 B. C.
A. P. C. N. Anno post Christum natum, the year
after the birth of Christ.
A PIRATIS AUT LATRONIBUS CAPTI LIBERI
PERMANENT. Persons taken by pirates or robbers remain free. Dig. 49, 15, 19, 2; Gro. de J. B.
lib. 3, c. 3, § 1.
A PIRATIS ET LATRONIBUS CAPTA DOMINUM NON MUTANT. Capture by pirates and
robbers does not change title. Bynk. bk. 1, c. 17;
1 Kent, Comm. 108, 184. No right to booty vests
in piratical captors; no right can be derived from
them by recaptors to the prejudice of the original
owners. 2 Wood.Lect. 428.
A. M. A. Agricultural Marketing Act.
A MA INTENT. On my action. Mitchell v.
Reynolds, 1 Smith Lead.Cas. (7th Am. ed.) 516.
A MANIBUS. Lat. Royal scribe. Amanuensis.
A POSTERIORI. Lat. From the effect to the
cause; from what comes after. A term used in
logic to denote an argument founded on experiment or observation, or one which, taking ascertained facts as an effect, proceeds by synthesis
and induction to demonstrate their cause.
A MANU SERVUS. Lat. A handservant; a
scribe; a secretary.
A ME. (Lat. ego, I.) A term in feudal grants
denoting direct tenure of the superior lord. 2
Bell, H.L.Sc. 133.
Unjustly detaining from me. He is said to
withhold a me (from me) who has obtained possession of my property unjustly. Calvinus, Lex.
To pay a me, is to pay from my money.
A. P. R. C. Anno post Roman conditam, year after the foundation of Rome.
A PRENDRE. L. Fr. To take; to seize. Bret
a prendre la terre, a writ to take the land. Fet
Ass. § 51. A right to take something out of the
soil of another is a profit a prendre, or a right
coupled with a profit. 1 Crabb, Real Prop. p.
125, § 115. Distinguished from an easement. 5
Adol. & E. 758. Sometimes written as one word,
apprendre, apprender. See Profit a prendre.
Rightfully taken from the soil. 1 N. & P. 172;
Waters v. Lilley, 4 Pick. (Mass.) 145, 16 Am.Dec.
A MENSA ET THORO. Lat. From table and
bed, but more commonly translated, from bed
and board. A kind of divorce, which is rather
a separation of the parties by law, than a dissolution of the marriage. 27 C.J.S., Divorce, §
160.
A MULTO FORTIORI. By far the stronger reason.
333.
A NATIVITATE. From birth, or from infancy.
Denotes that a disability, status, etc., is congenital 3 Bla.Comm. 332; Reg.Orig. 266b.
A PRIORI. Lat. From the cause to the effect;
from what goes before. A term used in logic to
6
AB ACTIS
it.) Fleta, lib. 6, c. 1, § 2. A maxim in the old
law of real actions, when there were grades in the
remedies given; the rule being that a party who
brought a writ of right, which was the highest
writ in the law, could not afterwards resort or
descend to an inferior remedy. Bract. 112b; 3
Bl.Comm. 193, 194.
denote an argument founded on analogy, or abstract considerations, or one which, positing a
general principle or admitted truth as a cause,
proceeds to deduce from it the effects which must
necessarily follow.
A PROVISIONE VIRI. By the provision of man.
4 Kent, Comm. 55.
A TEMPORE CUJUS CONTRARII MEMORIA
NON EXISTET. From a time of which there is
no memory to the contrary.
A QUO. Lat. From which. A court a quo (also
written "a qua") is a court from which a cause
has been removed. The judge a quo is the judge
in such court. Clegg v. Alexander, 6 La. 339.
A term used, with the correlative ad quem (to
which), in expressing the computation of time,
and also of distance in space. Thus, dies a quo,
the day from which and dies ad quem, the day to
which, a period of time is computed. So, terminus a quo, the point or limit from which, and
terminus ad quem, the point or limit to which, a
distance or passage in space is reckoned.
A TENERIS ANNIS. By reason of youth.
A TERME. For a or the term.
A TERME DE SA VIE. For the term of his life.
U.B. 3 Edw. II, 55.
A TERME QUE N'EST MYE ENCORE PASSE.
For a term that has not yet passed.
A TERME QUE PASSE EST. For a term that
has passed.
A QUO INVITO ALIQUID EXIGI POTEST.
From whom something may be exacted against
his will.
A TORT. Without reason; unjustly; wrongfully.
A TORT ET A TRAVERS. Without considera-
A. R. Anno Regni. In the year of the reign; as
A. R. V. R. 22, (Anno Regni Victoriae Reginae
vicesimo secundo) in the twenty-second year of
the reign of Queen Victoria.
tion or discernment.
A TORT OU A DROIT. Right or wrong.
A VERBIS LEGIS NON EST RECENDENDUM.
The words of a statute must not be departed from.
5 Coke 119; Wing.Max. 25. A court is not at
liberty to disregard the letter of a statute, in favor of a supposed intention. 1 Steph.Comm. 71;
Broom, Max. 268.
A REMENAUNT. Forever.
A RENDRE. (Fr. to render, to yield.) That
which is to be rendered, yielded, or paid. Profits
a rendre comprehend rents and services. Ham.
N.P. 192.
A RESCRIPTIS VALET ARGUMENTUM. An argument from rescripts [i. e. original writs in the
register] is valid. Co.Litt. 11 a.
A VINCULO MATRIMONII. Lat. From the bond
of matrimony. A term descriptive of a kind of
divorce, which effects a complete dissolution of
the marriage contract. See Divorce.
A RESPONSIS. L. Lat. In ecclesiastical law.
One whose office it was to give or convey answers; otherwise termed responsalis, and apocrisiarius. One who, being consulted on ecclesiastical
matters, gave answers, counsel, or advice; otherwise termed a consiliis. Spelman, "Apocrisiarius."
A B (fr. Abba, Syr., Father). The eleventh month
of the Jewish civil year, and the fifth of the sacred year. It answers to the moon that begins in
July, and consists of thirty days. On the 24th
is observed a feast in memory of the abolishment
of the Sadducean law, which required sons and
daughters to be equal heirs and heiresses of their
parents' estates. Brown's Diet. of Bible, John's
Bib.Antiq. AB, at the beginning of English-Saxon
names of places, is generally a contraction of abbot or abbey; whence it is inferred that those
places once had an abbey there, or belonged to
one elsewhere, as Abingdon in Berkshire.
Blount's Law Gloss. Wharton's Law Lexicon.
A RETRO. L. Lat. Behind; in arrear. Et reditus proveniens rode a retro fuerit, and the rent
issuing therefrom be in arrear. Fleta, lib. 2, c.
55, § 2; c. 62, § 14.
A RUBRO AD NIGRUM. Lat. From the red to
the black; from the rubric or title of a statute
( which, anciently, was in red letters), to its body,
which was in the ordinary black. Tray.Lat.Max.;
Bell, "Rubric;" Erskine, Inst. 1, 1, 49.
AB. ABR. Abridgment.
AB ABUSU AD USUM NON VALET CONSEQUENTIA. A conclusion s to the use of a thing
from its abuse is invalid. Broom, Max. 17.
A SAVOIR. To wit.
A SUMMO REMEDIO AD INFERIOREM ACTIONEM NON HABETUR REGRESSUS, NEQUE
AUXILIUM. From (after using) the highest
remedy, there can be no recourse (going back) to
an inferior action, nor assistance, (derived from
AB ACTIS. Lat. An officer having charge of
acta, public records, registers, journals, or minutes; an officer who entered on record the acta
or proceedings of a court; a clerk of court; a
7
AB AGENDO
notary or actuary. Calvin.Lex.Jurid. See "Acta."
This, and the similarly formed epithets a cancellis,
a secretis, a libellis, were also anciently the titles
of a chancellor, (cancellarius,) in the early history of that office. Spelman, "Cancellarius."
rived from an intestate. Inst. 2, 9, 6. Successio
ab intestato, succession to an intestate, or in case
of intestacy. Id. 3, 2, 3; Dig. 38, 6, 1. This answers to the descent or inheritance of real estate
at common law. 2 Bl.Comm. 490, 516; Story,
Confl.Laws, § 480. "Heir ab intestato." 1 Burr.
420. The phrase "ab intestato" is generally used
as the opposite or alternative of ex testamento,
(from, by, or under a will.) Vel ex testamento,
vel ab intestato [hcereditates] pertinent,—inheritances are derived either from a will or from an
intestate, (one who dies without a will.) Inst. 2,
9, 6; Dig. 29, 4; Cod. 6, 14, 2.
AB AGENDO. Disabled from acting; unable to
act; incapacitated for business or transactions of
any kind.
AB ANTE. Lat. Before; in advance. Thus, a
legislature cannot agree ab ante to any modification or amendment to a law which a third person
may make. Allen v. McKean, 1 Sumn. 308, Fed.
Cas.No.229 (college charter).
AB ANTECEDENTE. Lat. Beforehand; in advance. 5 M. & S. 110.
AB INVITO. Unwillingly. Against one's will.
By or from an unwilling party. A transfer ab
invito is a compulsory transfer. See in invitum
and invito.
AB ANTIQUO. From old times; from ancient
time; of old; of an ancient date. 3 Bl.Comm. 95.
AB JUDICATIO. A removal from court.
AB ASSUETIS NON FIT INJURIA. From things
to which one is accustomed (or in which there
has been long acquiescence) no legal injury or
wrong arises. If a person neglect to insist on
his right, he is deemed to have abandoned it.
Amb. 645; 3 Brown, Ch. 639; Jenk.Cent.Introd. vi.
AB IRATO. Lat. By one who is angry. A devise or gift made by a man adversely to the interest of his heirs, on account of anger or hatred
against them, is said to be made ab irato. A suit
to set aside such a will is called an action ab irato.
Merlin, Repert. Ab irato. Snell v. Weldon, 239
Ill. 279, 87 N.E. 1022.
AB EPISTOLIS. Lat. An officer having charge
of the correspondence (epistolce) of his superior
or sovereign; a secretary. Calvin.; Spiegelius.
AB OLIM. Of old.
AB OVO. The egg, hence from the beginning in
allusion to old Roman custom of beginning a meal
with eggs and ending with fruit, ab ovo usque ad
mala. To begin with eggs and end with fruit.
Also, at times in allusion to poets who began history of Trojan war with the egg from which Helen was said to have been hatched in contrast
with Homer who plunged into the midst of things,
or in media res.
AB EXTRA. (Lat. extra, beyond, without.)
From without. Lunt v. Holland, 14 Mass. 151.
AB INCONVENIENT!. From hardship, or inconvenience. An argument founded upon the hardship of the case, and the inconvenience or disastrous consequences to which a different course of
reasoning would lead. Barber Asphalt Paving
Co. v. Hayward, 248 Mo. 280, 154 S.W. 140.
AB 1URBE CONDITA. See A.U.C.
AB INITIO. Lat. From the beginning; from the
first act; entirely; as to all the acts done; in
the inception. A party may be said to be a trespasser, an estate to be good, an agreement or deed
to be void, or a marriage or act to be unlawful,
ab initio. Plow. 6a, 16a; 1 Bl.Comm. 440; Hopkins v. Hopkins, 10 Johns. (N.Y.) 369.
Before. Contrasted in this sense with ex post
facto, 2 Shars.Bla.Comm. 308; or with postea,
Calvinus, Lex., initium.
ABACIST or ABACISTA. A caster of accounts,
an arithmetician.
ABACTION. A carrying away by violence.
ABACTOR. A stealer and driver away of cattle
or beasts by herds or in great numbers at once, as
distinguished from a person who steals a single
animal or beast. Also called abigeus, q. v.
Validity of insurance policy ab initio, In re Millers' &
Manufacturers' Ins. Co., 97 Minn. 98, 106 N.W. 485; Unconstitutional statute as not void ab initio, State v. Poulin,
105 Me. 224, 74 A. 119, 24 L.R.A.,N.S., 408; physical incapacity, marriage not void ab initio, Bennett v. Bennett, 169
Ala. 618, 53 So. 986, L.R.A.1916C, 693.
ABADENGO. In Spanish law. Land owned by
an ecclesiastical corporation, and therefore exempt from taxation. In particular, lands or towns
under the dominion and jurisdiction of an abbot.
Escriche, Dicc. Raz.
AB INITIO MUNDI. Lat. From the beginning
of the world. Ab initio mundi usque ad hodiernum diem, from the beginning of the world to
this day. Y.B.M. 1 Edw. III, 24.
ABALIENATE. To transfer interest or title.
ABALIENATIO. In Roman law. The perfect
conveyance or transfer of property from one Roman citizen to another. This term gave place to
the simple alienatio, which is used in the Digest
and Institutes, as well as in the feudal law, and
from which the English "alienation" has been
formed. Inst. 2, 8, pr.; Id. 2, 1, 40; Dig. 50, 16,
28; Calvinus, Lex., Abalienatio.
AB INTESTAT. Intestate. 2 Low.Can. 219.
Merlin, Repert.
AB INTESTATO. - Lat. In the civil law. From
an intestate; from the intestate; in case of intestacy. Hcereditas ab intestato, an inheritance de-
8
ABANDONMENT
any interest. Stinnett v. Kinslow, 238 Ky. 812, 38 S.W.2d
920, 922.
"Abandonment" includes both the intention to abandon
and the external act by which the intention is carried into
effect. In determining whether one has abandoned his
property or rights, the intention is the first and paramount object of inquiry, for there can be no abandonment without the intention to abandon. Boatman v. Andre, 44 Wyo. 352, 12 P.2d 370, 373. Generally, "abandonment" can arise from a single act or from a series of acts.
Holly Hill Lumber Co. v. Grooms, 16 S.E.2d 816, 821, 198
S.C. 118.
Time is not an essential element of "abandonment,"
although the lapse of time may be evidence of an intention to abandon, and where it is accompanied by acts manifesting such an intention, it may be considered in determining whether there has been an abandonment. Ullman
ex rel. Eramo v. Payne, 127 Conn. 239, 16 A.2d 286, 287.
ABALIENATION. In the Civil Law, a making
over of realty, or chattels to another by due
course of law.
ABAMITA. Lat. In the civil law. A great-greatgrandfather's sister, (abavi soror.) Inst. 3, 6, 6;
Dig. 38, 10, 3; Calvinus, Lex. Called amita maxima. Id. 38, 10, 10, 17. Called, in Bracton, abamita magna. Bract. fol. 68b.
ABANDON. To desert, surrender, forsake, or
cede. To relinquish or give up with intent of never again resuming one's right or interest. Burroughs v. Pacific Telephone & Telegraph Co., 220
P. 152, 155, 109 Or. 404. To give up or to cease
to use. Southern Ry. Co. v. Commonwealth, 105
S.E. 65, 67, 128 Va. 176. To give up absolutely;
to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to
desert. Commonwealth v. Louisville & N. R. Co.,
258 S.W. 101, 102, 201 Ky. 670. It includes the intention, and also the external act by which it is
carried into effect.
Mere nonuser is not necessarily an abandonment. Harnett v. Dickinson, 93 Md. 258. 48 A. 838 (home); Welsh v.
Taylor, 131 N.Y. 450, 31 N.E. 896, 18 L.R.A. 535: Phillis v.
Gross, 32 S.D. 438. 143 N.W. 373, 378 (contract for deed).
See, however, Corkran, Hill & Co. v. A. H. Kuhlemann Co.,
136 Md. 525, 111 A. 471, 474 (trademark). Distinguished
from neglect: City of Vallezo v. Burrill, 64 Cal.App. 399,
221 P. 676 (pipe line).
"Abandonment" differs from surrender in that surrender
requires an agreement, Noble v. Sturm, 210 Mich. 462,
178 N.W. 99, 103; and from forfeiture, in that forfeiture
may be against the intention of the party alleged to have
forfeited, Gila Water Co. v. Green, 29 Ariz. 304, 241 P. 307,
308.
ABANDONEE. A party to whom a right or property is abandoned or relinquished by another.
Applied to the insurers of vessels and cargoes.
Lord Ellenborough, C.J., 5 Maule & S. 82; Abbott,
J., Id. 87; Holroyd, J., Id. 89.
In the Civil and French Law it is the act by
which a debtor surrenders his property for the
benefit of his creditors; Merlin, Repert. See
Abandonment for Torts.
ABANDONMENT. The surrender, relinquishment, disclaimer, or cession of property or of
rights. Stephens v. Mansfield, 11 Cal. 363 (land) ;
Munsey v. Marnet Oil & Gas Co. (Tex.Civ.App.)
199 S.W. 686, 689 (oil lease) ; Shepard v. Alden,
201 N.W. 537, 539, 161 Minn. 135, 39 A.L.R. 1094
(bowling alleys) ; Union Grain & Elevator Co. v.
McCammon Ditch Co., 240 P. 443, 445, 41 Idaho
216 (water rights).
The giving up of a thing absolutely, without reference to any particular person or purpose, as
throwing a jewel into the highway; leaving a
thing to itself, as a vessel at sea; vacating property with the intention of not returning, so that
it may be appropriated by the next corner. 2 Bl.
Comm. 9, 10; Judson v. Malloy, 40 Cal. 299, 310.
Intention to forsake or relinquish the thing is an
essential element, to be proved by visible acts.
Sikes v. State, Tex.Cr.App., 28 S.W. 688; Jordan
v. State, 107 Tex.Cr.R. 414, 296 S.W. 585, 586
(auto parts) ; Kunst v. Mabie, 72 W.Va. 202, 77
S.E. 987, 990 (uncut timber) ; Dow v. Worley,
126 Okl. 175, 256 P. 56, 60 (oil and gas lease) ;
Duryea v. Elkhorn Coal & Coke Corporation, 123
Me. 482, 124 A. 206, 208.
The voluntary relinquishment of possession of
thing by owner with intention of terminating his
ownership, but without vesting it in any other person. Dober v. Ukase Inv. Co., 139 Or. 626, 10 P.
2d 356, 357. The relinquishing of all title, possession, or claim, or a virtual, intentional throwing
away of property. Foulke v. New York Consol. R.
Co., 228 N.Y. 269, 127 N.E. 237, 238, 9 A.L.R. 1384
(package in subway car).
Actions, In General
Failure for indefinite period to prosecute action
or suit, Morris v. Phifer State Bank, 90 Fla. 55,
105 So. 150, unless caused by an injunction, Barton
v. Burbank, 138 La. 997, 71 So. 134. By statute in
some states a definite time has been stated which
will render a suit abandoned and subject to dismissal. Public Utilities Commission v. Smith, 298
Ill. 151, 131 N.E. 371, 375.
Failure to submit issue by instruction, Unterlachner v. Wells, 317 Mo. 181, 296 S.W. 755, 756;
failure to perform conditions necessary to valid
appeal or writ of error, Lewis v. Martin, 210
Ala. 401, 98 So. 635; Board of Public Instruction
for Marion County v. Goodwin, 89 Fla. 379, 104
So. 779; failure to take issue upon garnishee's answer, Phelps v. Schmuck, 151 Kan. 521, 100 P.2d
67, 71.
Assignments of Error
Not argued. Meyer v. Hendrix, 311 Ill.App. 605,
37 N.E.2d 445, 446.
Not presented in brief. Roubay v. United
States, Q.C.A.Cal., 115 F.2d 49, 50.
Not supported by point, argument or authority.
Cone v. Ariss, 13 Wash.2d 650, 126 P.2d 591, 593.
Bankrupt's Property
In re Mirsky, C.C.A.N.Y., 124 F.2d 1017.
Building Restrictions
Violations of restrictive covenant, Meyer v.
Stein, 284 Ky. 497, 145 S.W.2d 105, 107.
Abandonment in law depends upon concurrence of intention to abandon and some overt act or failure to act which
carries implication that owner neither claims nor retains
9
ABANDONMENT
Cemeteries
No new burials and neglect of graves, Andrus
v. Remmert, 136 Tex. 179, 146 S.W.2d 728, 730;
casual use for farming purpos,s, In re Gundry,
294 Mich. 221, 292 N.W. 709, 711 ; 1 disuse as to new
interments, failure to cut grass r care for headstones, In re Board of Transpor ation of City of
New York, 251 N.Y.S. 409, 413, 14 Misc. 557.
nonperformance, but an intent not to perform
which may be inferred from acts which necessarily point to actual abandonment, Losei Realty Corporation v. City of New York, 254 N.Y. 41, 171
N.E. 899.
Copyrights
Common-law rights, Tamas v. 20th Century Fox
Film Corporation, Sup., 25 N.Y.S.2d 899, 901; sale
and delivery of uncopyrighted painting to stateowned public institution, Pushman v. New York
Graphic Soc., Sup., 25 N.Y.S.2d 32, 34; copyrighted lectures not delivered to general public, but
only to paying audiences and classes, National
Institute for Improvement of Memory v. Nutt,
D.C.Conn., 28 F.2d 132, 134.
Children
Desertion or willful forsaking. Cannon v.
State, 53 Ga.App. 264, 185 S.E. 364, 366.
Foregoing parental duties. Wright v. Fitzgibbons, Miss., ?1 So.2d 709, 710.
Withdrawal or neglect of parental duties. In
re Potter, 85 Wash. 617, 149 P. 23.
Relinquishment of parental claims. Glendinning v. McComas, 188 Ga. 345, 3 S.E.2d 562, 563.
Separation agreement committing custody of
child to father. Gardner v. Hall, 132 N.J.Eq. 64,
26 A.2d 799, 809.
Separation from the child and failure to supply
its needs. State v. Clark, 148 Minn. 389, 182 N.W.
452, 453.
Criminal offense, separation from child, and
failure to supply its needs. Curtis v. State, 48
Ga.App. 135, 172 S.E. 99, 100.
Defeating recovery for wrongful death. In re
Schiffrin's Estate, 272 N.Y.S. 583, 585, 152 Misc.
33,
Compensation Claims
Failure to file application for hearing. Hanks
v. Southern Public Utilities Co., 210 N.C. 312, 186
S.E. 252.
Condemnation Proceedings
Dismissal of a petition. Will County v. Cleveland, 372 Iii. 111, 22 N.E.2d 929, 930.
Failure of commissioners to report, Kean v.
Union County Park Commission, 129 N.J.Eq. 67,
18 A.2d 279, 280, or judgment determining invalidity. City of Los Angeles v. Abbott, Cal., 12 P.2d
19, 22; failure to pay moneys adjudged, Detroit
International Bridge Co. v. American Seed Co.,
228 N.W. 791, 795, 249 Mich. 289.
Crops
Sharecropping tenant's willful failure to cultivate crops, Heaton v. Slaten, 25 Ala.App. 81, 141
So. 267, 268.
Ditches
Town's nonuser for a short period after permitting ditch to be blocked was insufficient. Foster v. Webster, Sup., 44 N.Y.S.2d 153, 156. Mere
nonuser does not constitute. Musselshell Valley
Farming & Livestock Co. v. Cooley, 86 Mont. 276,
283 P. 213, 218. After prescriptive right attached,
water shortage in subsequent years rendering
use of ditch unnecessary would not constitute.
Bowman v. Bradley, 270 P. 919, 922, 127 Or. 45.
Domicile
Permanent removal from, Stafford v. Mills, 57
N.J.L. 570, 31 A. 1023.
Easements
To establish "abandonment" of an easement
created by deed, there must be some conduct on
part of owner of servient estate adverse to and
inconsistent with existence of easement and continuing for statutory period, or nonuser must be
accompanied by unequivocal and. decisive acts
clearly indicating an intent on part of owner of
easement to abandon use of it. Richardson v.
Tumbridge, 111 Conn. 90, 149 A. 241, 242.
Permanent cessation of use or . enjoyment with no intention to resume or reclaim. Welsh v. Taylor, 134 N.Y. 450,
31 N.E. 896, 18 L.R.A. 535; Corning v. Gould, 16 Wend.,
N.Y., 531. Intention and completed act are both essential.
Town of Orlando v. Stevens, 90 Okl. 2, 215 P. 1050, 1051.,
Goodman v. Brenner, 219 Mich. 55, 188 N.W. 377; bricking up of the openings for stairway and halls of adjoining
buildings, Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173, 178;
where object of use of dedicated property wholly fails,
Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922. But
mere nonuser is not sufficient. Smelcer v. Rippetoe, 24
Tenn.App. 516, 147 S.W.2d 109, 113, 114; O'Barr v. Duncan, 187 Ga. 642, 2 S.E.2d 82, 83; right of way acquired by
grant. Burnham v. Mahoney, 222 Mass. 524, 111 N.E. 396,
398; Raleigh, C. & S. Ry. Co. v. McGuire, 171 N.C. 277, 88
S.E. 337, 339. Where owner of building had easement in
adjoining wall, wrecking building preparatory to erection
of a new building, did not cause loss of easement. Joel v.
Publix-Lucas Theater, 193 Ga. 531, 19 S.E.2d 730, 736. And
a mere temporary or occasional obstruction or use of an
easement by the servient owner is not an "abandonment".
Gerber v. Appel, Mo.App., 164 S.W.2d 225, 228. However
nonuser of railroad crossing for more than 20 years, and
Construction Work
Cessation of operation and intent of owner and
contractor to cease operations permanently, or at
least for definite period, or some fair notice or
knowledge of abandonment by lien claimant, actual or implied. Block v. Love, 136 Or. 685, 1 P.2d
588, 589.
Contracts
To constitute "abandonment" by conduct, action relied on must be positive, unequivocal, and
inconsistent with the existence of the contract,
Mood v. Methodist Episcopal Church South, Tex.
Civ.App., 289 S.W. 461, 464. Abandonment is a
matter of intent, Lohn v. Fletcher Oil Co., 38 Cal.
App.2d 26, 100 P.2d 505, 507, and implies not only
10
ABANDONMENT
Boned. Mosteller v. Southern Ry. Co., 220 N.C.
conveyance of strips of land adjoining original right of
way to railroad in fee simple, without reservation, constituted abandonment of easement in crossing. Cityco
Realty Co. v. Philadelphia, B. & W. R. Co., 158 Md. 221,
148 A. 441, 444.
275, 17 S.E.2d 133, 135. And cultivation of highway for short period by abutting landowners was
not an "abandonment" of highway. Chicago &
E. I. Ry. Co. v. Road Dist. No. 10, 353 Ill. 160, 187
N.E. 155, 157.
Employment
During Christmas holidays, notwithstanding a
call at employer's office and discussing business,
Stinson v. Dairymen's League Co-op. Ass'n, 186 A.
687, 688, 14 N.J.Misc. 671. Deviation from route,
Loper v. Morrison, 145 P.2d 4, 23 Cal.2d 600; truck
driver unnecessarily permitting passenger to
drive, Ginther v. J. P. Graham Transfer Co., 33 A.
2d 923, 924, 348 Pa. 60. Contra where truck driver remained on driver's seat, directing operation
of truck, and watched passenger's driving, Ginther v. J. P. Graham Transfer Co., 27 A.2d 712,
714, 149 Pa.Super. 635; and where truck driver
became sick, Matzek v. United Storage & Trucking Co., 186 A. 193, 122 Pa.Super. 146. Truck
drivers becoming intoxicated and remaining from
work, Naylon v. State, Ct.C1., 40 N.Y.S.2d 587, 590;
Coal miner contrary to orders, riding on an empty
car, Soroka v. Philadelphia & Reading Coal &
Iron Co., 138 Pa.Super. 296, 10 A.2d.904, 907. But
automobile driver's choosing longer route by
paved highways to pick up a needed change of
clothing at home did not constitute an "abandonment" of his employment. Mitchell v. Mitchell
Drilling Co., 154 Kan. 117, 114 P.2d 841, 844.
Homesteads
Removal with an intention never to return constitutes an "abandonment", and nothing less does.
Farmers' State Bank of Georgetown v. Roberts,
Tex.Civ.App., 59 S.W.2d 1089. Must be voluntary
action, Wood v. Wood, 203 Ark. 344, 157 S.W.2d
36, 38. Temporary absence with intention to return, Brewer v. Brewer, 268 Ky. 625, 105 S.W.2d
582, 584. Absence of a design of permanent
abandonment, Lanier v. Lanier, 95 Fla. 522, 116
So. 867, 868. Absence by necessity, Hinds v. Buck,
177 Tenn. 444, 150 S.W.2d 1071, 1072; sickness, In
re Dunlap's Estate, 161 Or. 93, 87 P.2d 225, 229;
advancing years and inability to care for selves,
Gulf Production Co. v. Continental Oil Co., Tex.,
132 S.W.2d 553, 573, 576; to rent to winter tourists, Collins v. Collins, 150 Fla. 374, 7 So. 443, 444.
A deed with reservation of a life estate did not
constitute "abandonment" of homestead. Arighi
v. Rule & Sons, 41 Cal.App. 852, 107 P.2d 970, 972.
Nor did filing of suit to partition land. Carr v.
Langford, Tex.Civ.App., 144 S.W.2d 612, 613.
Husband
The act of a husband or wife who leaves his or
her consort willfully, and with an intention of
causing perpetual separation. People v. Cullen,
153 N.Y. 629, 47 N.E. 894, 44 L.R.A. 420.
Exceptions on Appeal
Not argued in brief, Currin v. Currin, 219 N.C.
815, 15 S.E.2d 279, 282. Not set out in brief, Star
Mfg. Co. v. Atlantic Coast Line R. Co., 222 N.C.
330, 23 S.E.2d 32, 40. Not complaining of rulings
on exceptions, Buckalew v. Brockner, La:App.,
11 So.2d 720, 722. Failing to answer appeal to
re-urge exception, John Myers Implement Co. v.
De Boer, La.App., 9 So.2d 832, 833. Filing answers without insisting on decision on exceptions
to jurisdiction ratione personae, Weaver v. Mansfield Hardwood Lumber Co., La.App., 4 So.2d 781,
782.
Family
Where father during three or four months following his departure contributed only $32 to support of wife and three minor children, Howton v.
Howton, 51 Cal.App.2d 323, 124 P.2d 837, 839. Contra where father helped to support family, In re
Hess' Estate, 257 N.Y.S. 278, 282, 143 Misc. 335.
Wife's leaving husband for a trip to Europe of less than
two months against husband's wishes, did not constitute.
In re Boesenberg's Estate, 37 N.Y.S.2d 194, 196, 179 Misc. 3.
Abandonment as cause for divorce must be willful and
intentional without intention of returning, and without
consent of spouse abandoned. Hickey v. Hickey, 152
Wash. 429, 277 P. 994, 995. Husband forcibly expelling
wife from home, Tenorio v. Tenorio, 44 N.M. 89, 98 P.2d
838, 847. Refusal to talk to husband did not establish.
Wyahllyeth v. Wyahllyeth, 182 Md. 663, 32 A.2d 380, 381.
Wife refusing without good cause to accompany husband
when moving, Ventrano v. Vetrano, 54 N.Y.S.2d 537, 539.
Word "abandoned," within statute providing that no
wife who has abandoned husband shall have right of election to take against provisions of husband's will, has
meaning ascribed thereto in matrimonial litigations, and
carries no connotation of infidelity. Adultery of abandoned wife did not constitute "abandonment". In re
Green's Estate, 280 N.Y.S. 692, 702, 155 Misc. 641.
A wife who told husband to get out of wife's home, and
made no effort to effect a reconciliation, was not entitled
to appointment as administratrix of his estate. In re Banaszak's Estate, 1 N.Y.S.2d 15, 164 Misc. 829.
Where husband paid wife living apart in caring for their
child, she had not abandoned husband so as to preclude
the recovery of an industrial pension for his death. Johnson v. Department of Labor and Industries of Washington,
3 Wash.2d 257, 100 P.2d 382, 385. But wife who had, prior
to husband's death, left husband, resisted efforts toward a
reconciliation, and instituted annulment proceedings, was
not entitled to compensation for husband's death. La
Fountain v. Industrial Accident Commission, 13 Cal.App.2d
130, 56 P.2d 257, 258.
Franchises
'Inferior service and lack of any service for few
short intervals held insufficient to show "abandonment" of ferry franchise. McConnell v. Crittenden County, 250 Ky. 359, 63 S.W.2d 329.
Highways
Where public ceases to use street or highway
under circumstances indicating intent to abandon,
Grand Trunk Western R. Co. v. City of Flint, D.
C.Mich., 55 F.2d 384, 386. But short sections of
highway, discontinued by state highway commission upon relocating highway, were not aban-
Insured Property
A relinquishment or cession of property by the
owner to the insurer of it, in order to claim as for
11
ABANDONMENT
a total loss. Chicago S. S. Lines v. U. S. Lloyds,
C.C.A.I11., 12 F.2d 733, 738.
abandonment. Distinction also exists between
elements of "abandonment" and those of estoppel.
Neither formal surrender of oil and gas lease nor
release is necessary to effectuate "abandonment."
Sigler Oil Co. v. W. T. Waggoner Estate, Tex.Civ.
App., 276 S.W. 936, 938. Voluntary, intentional
relinquishment of known right. Pure Oil Co. v.
Sturm, 43 Ohio App. 105, 182 N.E. 875, 882.
The term is used only in reference to risks in navigation; but the principle is applicable in fire insurance,
where there are remnants, and sometimes, also, under
stipulations in life policies in favor of creditors. Cincinnati Ins. Co. v. Duffield, 6 Ohio St. 200, 67 Am. Dec. 339.
Inventions
The giving up of rights by inventor, as where
he surrenders his idea or discovery or relinquishes
the intention of perfecting his invention, and so
throws it open to the public, or where he negligently postpones the assertion of his claims or
fails to apply for a patent, and allows the public
to use his invention. Electric Storage Battery
Co. v. Shimadzu, Pa., 59 S.Ct. 675, 681, 307 U.S. 5,
613, 616, 83 L.Ed. 1071.
Failing to start work under the lease for more than 40
years, Chapman v. Continental Oil Co., 149 Kan. 822, 89
P.2d 833, 834; breach of implied obligation to proceed
with search and development of land with reasonable diligence, Wood v. Arkansas Fuel Oil Co., D.C.Ark., 40 F.
Supp. 42, 45; no drilling on leased land for more than two
years, and failure to pay rentals, Rehart v. Klossner, 48
Cal.App.2d 40, 119 P.2d 145, 147; drawing of casing from
well with no intention of replacing it, Seaboard Oil Co. v.
Commonwealth, 193 Ky. 629, 237 S.W. 48, 50. But there
must be an intention by lessee to relinquish leased premises, Carter Oil Co. v. Mitchell, C.C.A.Okl., 100 F.2d 945,
950, 951; or an intention not to drill, Carter Oil Co. v.
Mitchell, C.C.A.Okl., 100 F.2d 945, 950, 951. And ceasing
of operations is not alone sufficient. Fisher v. Dixon, 188'
Okl. 7, 105 P.2d 776, 777. Doing no substantial work for
about one year immediately preceding suit to cancel lease,
but remaining in possession and doing some work, Deace
v. Stribling, Tex.Civ.App., 142 S.W.2d 564, 567; disconnection of well for a brief interval while well was being
drilled to a greater depth, Cole v. Philadelphia Co., 345 Pa.
315, 26 A.2d 920, 923; abandoning work on unproductive
well was not an abandonment of leased premises. Smith
v. Tullos, 195 La. 400, 196 So. 912, 914.
Disclaimer of claim of patent, Triumph Explosives v.
Kilgore Mfg. Co., C.C.A.Md., 128 F.2d 444, 448; delaying
12 years after reducing shoe to practice before applying
for patent, Salisbury v. Pediforme Shoe Co., D.C.N.Y., 31
F.Supp. 3, 7; omitting for many years to take any step
to reinstate or renew rejected application, Na-Mac Products Corporation v. Federal Tool Corporation, c.c.A.m.,
118 F.2d 167, 171; acquiescing in rejection of claims in
patent application for device shown in later application
for patent, Na-Mac Products Corporation v. Federal Tool
Corporation, C.C.A.Ill., 118 F.2d 167, 171; Na-Mac Products Corporation v. Federal Tool Corporation, D.C.Ill., 36
F.Supp. 426, 430. But mere lapse of time before an inventor applies for a patent is not sufficient. Imperial Brass
Mfg. Co. v. Bonney Forge & Tool Works, D.C.Pa., 38 F.
Supp. 829, 832. Patent application was not filed until 21/2
years after date of conception of invention, Chicago Rawhide Mfg. Co. v. National Motor Bearing Co., D.C.Cal., 50
F.Supp. 458, 460. Nor is disclosing invention to individuals with purpose of interesting them in production or
manufacture. Pennington Engineering Co. v. Houde Engineering Corporation, D.C.N.Y., 43 F.Supp. 698, 706.
Mining Claims
Relinquishment of a claim held by location without patent, where the holder voluntarily leaves his
claim to be appropriated by the next corner, without any intention to retake or resume it, and regardless of what may become of it in the future.
O'Hanlon v. Ruby Gulch Mining Co., 48 Mont. 65,
135 P. 913, 918. The term includes both the intention to abandon and the act by which the
abandonment is carried into effect. Peachy v.
Frisco Gold Mines Co., D.C.Ariz., 204 F. 659, 668.
Leases in General
To constitute an "abandonment" of leased
premises, there must be an absolute relinquishment of premises by tenant consisting of act and
intention. Schnitzer v. Lanzara, 115 N.J.L. 332,
180 A. 234.
Abandonment takes place whenever locator leaves claim
without intention of holding it. Crane v. French, 39 Cal.
App.2d 642, 104 P.2d 53, 60. But mere absence from claim,
is not sufficient. Crane v. French, 39 Cal.App.2d 642, 104
P.2d 53, 60. And one co-owner's abandoning his interest
is not an "abandonment" of entire claim. Crane v.
French, 39 Ca1.App.2d 642, 104 P.2d 53, 60.
Closing up butcher shop with intention of giving up business and in removing all perishable merchandise, although
tenant retained key and did not notify landlord of intention to vacate premises, held an "abandonment" and not
a "surrender" of premises. Schnitzer v. Lanzara, 115 N.
J.L. 332, 18 A. 234. Refusal by lessee of lessor's offer to
reconstruct burned building, Girard Trust Co. v. Tremblay
Motor Co., 291 Pa. 507, 140 A. 506, 512. But tenants surrendering premises pursuant to notice of forfeiture did
not "abandon" premises. Becker v. Rute, 228 Iowa 533,
293 N.W. 18, 21.
Motions
Motion not called to court's attention until final
hearing, Williams v. Smith, 149 Fla. 735, 6 So.2d
853, 854. Grounds not insisted on, Meador v. Nowell, 67 Ga.App. 564, 21 S.E.2d 312, 314; not argued
in brief, In re Horton's Estate, 154 Kan. 269, 118 P.
2d 527, 531. Rulings not urged on appeal, Spears v.
Brown Paper Mill Co., La.App., 9 So.2d 332, 334.
Admitting sufficiency of evidence to sustain verdict, Copeland v. State, 66 Ga.App. 142, 17 S.E.2d
288, 289. But service of answer after making of
motion to strike out portions of a complaint was
not an "abandonment" of the motion. Russo v.
Signode Steel Strapping Co., Sup., 37 N.Y.S.2d
Marriage
Withdrawal or denial of marital obligations
without just cause, Reppert v. Reppert, Del.Super.,
13 A.2d 705, 1 Terry 492.
Mineral Leases
"Abandonment" consists of an actual act of relinquishment, accompanied with the intent and
purpose permanently to give up a claim and right
of property. A distinction exists between "abandonment" and "surrender" which is the relinquishment of a thing or a property right thereto to
another, which is not an essential element of
166.
Office
Abandonment of a public office is a species of
resignation, but differs from resignation in that
12
ABANDONMENT
resignation is a formal relinquishment, while
abandonment is a voluntary relinquishment
through nonuser. State v. Harmon, 115 Me. 268,
98 A. 804, 805.
and thereupon asserted his privilege, did not
"abandon" right to claim the privilege. United
States v. Weisman, C.C.A.N.Y., 111 F.2d 260, 261.
It is not wholly a matter of intention, but may result
from the complete abandonment of duties of such a continuance that the law will infer a relinquishment. Wilkinson v. City of Birmingham, 193 Ala. 139, 68 So. 999, 1002.
It must be total, and under such circumstances as clearly
to indicate an absolute relinquishment; and whether an
officer has abandoned an office depends on his overt acts
rather than his declared intention. Parks v. Ash, 168 Ga.
868, 149 S.E. 207, 209. It implies nonuser, but nonuser does
not, of itself constitute abandonment. The failure to per
form the duties pertaining to the office must be with actual
or imputed intention on the part of the officer to abandon
and relinquish the office. The intention may be inferred
from the acts and conduct of the party, and is a question
of fact. Abandonment may result from an acquiescence
by the officer in his wrongful removal or discharge, but,
as in other cases of abandonment, the question of intention is involved. McCall v. Cull, 51 Ariz. 237, 75 P.2d 696,
698.
Temporary absence is not ordinarily sufficient to constitute an "abandonment of office". State v. Green, 206 Ark.
361, 175 S.W.2d 575, 577. Responding to mandatory call
for military service in emergency conditions, Caudel v.
Prewitt, 296 Ky. 848, 178 S.W.2d 22, 25. And failure of
former officers to assert right while decision of eligibility
of elected successors was pending, was not an "abandonment" creating vacancy. State v. Levy Court of New Castle County, Del., 3 W.W.Harr. 554, 140 A. 642, 645.
Property
"Abandoned property" in a legal sense is that to
which owner has relinquished all right, title, claim,
and possession, with intention of not reclaiming it
or resuming its ownership, possession or enjoyment. Jackson v. Steinberg, Or., 200 P.2d 376,
377, 378.
There must be concurrence of act and intent, that is, the
act of leaving the premises or property vacant, so that it
may be appropriated by the next comer, and the intention
of not returning. Cohn v. San Pedro, L. A. & S. L. R. Co.,
103 Cal.App. 496, 284 P. 1051, 1052. Relinquishment of all
title, possession, or claim; a virtual intentional throwing
away of property. Ex parte Szczygiel, Sup., 51 N.Y.S.2d
699, 702. Actual relinquishment, gas in pipe was not abandoned. Hein v. Shell Oil Co., 315 Ill.App. 297, 42 N.E.2d
949, 952. Nor was a sewing machine and phonograph left
with landlady as security. Dickens v. Singer Sewing
Mach. Co., 140 So. 296, 298, 19 La.App. 735.
Property for Special Purposes
Moving of church to erect drilling rig held not
"abandonment of use for church purposes." Abandonment meant to wholly discontinue church use,
and additional use was not sufficient. Skipper v.
Davis, Tex.Civ.App., 59 S.W.2d 454, 457.
Oil Wells
Where owner ceased working on well to work
elsewhere to procure money to do further work on
well, well was not abandoned. Jones v. Jos.
Greenspon's Son Pipe Corporation, 313 Ill.App.
651, 40 N.E.2d 561.
Merger of churches was not. Bridgeport-City Trust Co.
v. Bridgeport Hospital, 120 Conn. 27, 179 A. 92, 94. Nor
where intention was that nonconforming use as a fraternity house would be resumed. State ex rel. Morehouse v.
Hunt, 235 Wis. 358, 291 N.W. 745, 751, 752. Nor mere
cessation of a nonconforming use in zoned area for a reasonable period. Beyer v. Mayor and Council of Baltimore
City, Md., 34 A.2d 765, 768, 769. Nor a discontinuance of
a garage during war while owner served in army and on
return postponed repossession for garage purposes due to
city's using building. State v. Murray, 195 Wis. 657, 219
N.W. 271, 272. But removal of manufacturing equipment
from manufacturing plant, was. Francisco v. City of Columbus, Ohio App., 31 N.E.2d 236, 243. And also disposing
of all machinery, taking down smokestack and using property for storage purposes, notwithstanding vague intention
of resuming slaughter house business. Beyer v. Mayor and
City Council of Baltimore City, 182 Md. 444, 34 A.2d 765,
768, 769.
Dedicated use must wholly fail. Kirchen v. Remenga,
291 Mich. 94, 288 N.W. 344, 350, 351. Erection of buildings
on park lands without objection of adjoining owners was
not sufficient. Kirchen v. Remenga, 291 Mich. 94, 288 N.W.
344, 350, 351. Nor city's permitting a citizen's rock garden
on small portion of street improvement tract. Kendrick
V. City of St. Paul, 213 Minn. 283, 6 N.W.2d 449, 451. Nor
diverting parkway to roadway. Ford v. City of Detroit,
273 Mich. 449, 263 N.W. 425, 426. Nor tearing down school
building for salvaging material for erection of a waiting
station for school children. McCullough v. Swifton Consol.
School Dist., 202 Ark. 1074, 155 S.W.2d 353. Nor temporary
disuse of school when land was offered for sale, later
rescinded. Bernard v. Bowen, 214 N.C. 121, 198 S.E. 584.
Patents
There may be an abandonment of a patent,
where the inventor dedicates it to the public use;
and this may be shown by his failure to sue infringers, sell licenses, or otherwise make efforts
to realize a personal advantage from his patent.
Ransom v. New York, 4 Blatchf. 157, 20 Fed.Cas.
286.
Pleadings
The filing of a second amended complaint which
was complete in itself and which did not reserve
to itself any part of the original complaint or
first amended complaint constituted an "abandonment" of the two former complaints. Seely v.
Gilbert, 16 Wash.2d 611, 134 P.2d 710, 712. Crosscomplainant by failing to take proper steps in
trial court to have judgment that was silent on
issues tendered by cross-complaint and answer
thereto corrected did not thereby "abandon" crosscomplaint. Brown v. National Life Ins. Co. of
Washington County, Vt., 112 Ind.App. 684, 46 N.E.
2d 246, 249.
Prescriptive Rights
Non-use alone is insufficient. Burkman v. City
of New Lisbon, 246 Wis. 547, 19 N.W.2d 311, 313;
Smelcer v. Rippetoe, 24 Tenn.App. 516, 147 S.W.2d
109, 113, 114.
Privileges
Witness before grand jury who answered questions and immediately asked to retract answers,
Railroad Property
"Abandon" means to relinquish or give up with
intent of never again resuming or claiming one's
rights or interests in, to give up absolutely, to forsake entirely, to renounce utterly, to relinquish all
connection with or concern in. Capital Transit Co.
v. Hazen, 93 F.2d 250, 251, 68 App.D.C. 91. Abandonment did not mean a partial disuse with an intention to complete station on a contingency, but
meant a final relinquishment, or giving up with13
ABANDONMENT
out intention of resuming. Wheeling & L. E. Ry.
Co. v. Pittsburgh & W. V. Ry. Co., C.C.A.Ohio, 33
F.2d WO, 392. And to constitute an "abandonment" of right of way, there must be not only an
actual relinquishment of the property, but an intention to abandon it. Abens v. Chicago, B. & Q.
R. Co., 388 Ill. 261, 57 N.E.2d 883, 887.
in bankruptcy. Reconstruction Finance Corporation v. J.
G. Menihan Corporation, D.C.N.Y., 28 F.Supp. 920, 923.
Trusts
State aid for hospital, with stipulation for beds
for emergency cases, did not establish an "abandonment of trust". Noble v. First Nat. Bank of
Anniston, 241 Ala. 85, 1 So.2d 289, 291.
Nonuser is a fact in determining it, but, though continued for years, is not conclusive. Arlington Realty Co. v.
Keller, 105 N.J.Eq. 196, 147 A. 437, 438. Plowing up servient estate is not enough. Les v. Alibozek, 269 Mass. 153.
168 N.E. 919, 922, 66 A.L.R. 1094. Nor proposal to deliver
and receive freight by motortrucks. New York Dock Ry.
v Pennsylvania R. Co., D.C.Pa., 1 F.Supp. 20, 21. But
failure to maintain and use that part of railroad on land
conveyed constituted "abandonment." Atlantic Coast Line
R. Co. v. Sweat, 177 Ga. 698, 171 S.E. 123, 129.
Water Rights
"'Abandonment," as applied to water rights may
be defined to be an intentional relinquishment
of a known right. It is not based on a time element, and mere nonuser will not establish "abandonment" for any less time," at least, than statutory period, controlling element in "abandonment"
being matter of intent. Hammond v. Johnson, 94
Utah 20, 66 P.2d 894, 899. To desert or forsake
right. The intent and an actual relinquishment
must concur. Central Trust Co. v. Culver, 23 Colo.
App. 317, 129 P. 253, 254. Concurrence of relinquishment of possession, and intent not to resume
it for beneficial use. Neither alone is sufficient.
Osnes Livestock Co. v. Warren, 103 Mont. 284, 62
P.2d 206, 211.
Remedies
Election of one of two inconsistent remedies,
Lumber Mutual Casualty Ins. Co. of New York v.
Friedman, 176 Misc. 703, 28 N.Y.S.2d 506, 509.
Rights in General
The relinquishment of a right. It implies some
act of relinquishment done by the owner without
regard to any future possession by himself, or by
any other person, but with an intention to abandon. Dyer v. Sanford, 9 Mete., Mass., 395, 43 Am.
Dec. 399.
Not using water when there was no water in creek because of another user's obstruction of flow and appropriation of all the water did not constitute. New Mexico Products Co. v. New Mexico Power Co., 42 N.M. 311, 77 P.2d
634, 641. Nor did milling company's permitting water's
use by upper irrigators. Hutchinson v. Stricklin, 146 Or.
285, 28 P.2d 225, 230. Nor permitting upper appropriators
to erect dam and store water. Irion v. Hyde, Mont., 81 P.
2d 353, 356. Nor change of place of use of decreed water
right. Harris v. Chapman, 51 Idaho 283, 5 P.2d 733, 737. Nor
failure to use all water to which entitled. Horse Creek
Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92
P.2d 572, 577. Use of only enough water to water stock.
because supply was insufficient to irrigate land. Federal
Land Bank v. Morris, 112 Mont. 445, 116 P.2d 1007, 1010.
But right to use a particular quantity of water may be
abandoned by failure to apply such water to a beneficial
use for an unreasonable period of time. Cundy v. Weber,
68 S.D. 214, 300 N.W. 17, 22.
It Is properly confined to incorporeal hereditaments,
since legal rights once vested must be divested according to
law. But equitable rights may be abandoned. Great Falls
Co. v. Worster, 15 N.H. 412; Cox v. Colossal Cavern Co.,
210 Ky. 612, 276 S.W. 540; Inhabitants of School Dist. No.
4 v. Benson, 31 Me. 381, 52 Am. Dec. 618.
Ship and Freight
Act by which shipowner surrenders ship and
freight to a trustee for benefit of claimants. See
46 U.S.C.A. § 185; Ohio Transp. Co. v. Davidson
S. S. Co., 148 F. 185, 78 C.C.A. 319.
In France and other countries it is the surrender to a
person having a claim arising out of a contract made with
the master. American Transp. Co. v. Moore, 5 Mich. 368.
Wife
Abandonment justifying divorce is a voluntary,
unjustified, and final separation of one of married
parties from the other, accompanied by an intention to terminate the marital relation, or an unjustified refusal to resume suspended cohabitation, as where husband left his wife because his
children by former marriage could not live peaceably with second wife. Schwartz v. Schwartz,
158 Md. 80, 148 A. 259, 263.
Taxing Power
Delegation of taxing power by legislature to
city was not "abandonment of taxing power".
Mouledoux V. Maestri, 197 La. 525, 2 So.2d 11, 16.
Trade-marks and Trade Names
There must be not only nonuser, but also an
intent to abandon. Rockowitz Corset & Brassiere
Corporation v. Madame X Co., 248 N.Y. 272, 162 N.
E. 76, 78; Manz v. Philadelphia Brewing Co., D.C.
Pa., 37 F.Supp. 79, 81. To give up use of trademarks permanently. Neva-Wet Corporation of
America v. Never Wet Processing Corporation,
277 N.Y. 163, 13 N.E.2d 755, 761.
Refusal by husband of request by sick wife without
means of support, to return to home held "abandonment"
as respects disorderly conduct. People v. Schenkel, 252
N.Y.S. 415, 418, 140 Misc. 843. Contra where separation
agreement existed. People v. Gross, 291 N.Y.S. 597, 601,
161 Misc. 514. Where parties separated by agreement, and
husband, in lieu of periodic payments for wife's support,
made conveyance constituting valuable consideration, held
not "abandonment" as respects husband's statutory right
against wife's will. In re McCann's Estate, 281 N.Y.S. 445,
155 Misc. 763; or even if wife was justified in leaving husband on account of his cruel treatment, there must be a
desertion without consent. In re Stolz' Estate, 260 N.Y.S.
906, 145 Misc. 799. But while there can be no "desertion"
for divorce where parties are apart by consent, yet there
may be an "abandonment" as respects separate maintenance, although the separation originated and continued
by consent of parties. Pierson v. Pierson, 189 A. 391, 395,
Disuse not sufficient in itself. Sherwood Co. v. Sherwood
Distilling Co., 177 Md. 455, 9 A.2d 842, 845. Nor using
owner's name. Bunte Bros. v. Standard Chocolates, D.C.
Mass., 45 F.Supp. 478, 480. However, nonuser with extensive use by another is sufficient. Sherwood Co. v. Sherwood Distilling Co., 177 Md. 455, 9 A.2d 842, 845. But not
where receiver continuously operated trade-mark licensee's
property. American Dirigold Corporation v. Dirigold Metals Corporation. C.C.A.Mich., 125 F.2d 446, 454. Nor sale
of all physical assets of manufacturing company by trustee
14
ABATEMENT
15 N.J.Misc. 117. And as respects maintenance, husband's
conduct rendering wife's condition unendurable constitutes
"abandonment." Carder v. Carder, 227 Mo.App. 1005, 60
S. W.2d 706. Cruel treatment, Fallon v. Fallon, 111 N.J.
Eq. 512, 162 A. 406, 408. Husband's refusal of wife's
request to resume living with her, Clark v. Clark, 176 A.
81, 83, 13 N.J.Misc. 49; or refusal to receive wife at his
residence, is an "abandonment" of her. Hockaday v.
Hockaday, 182 La. 88, 161 So. 164. But not a husband's
removal from wife's home after wife had instituted separation action, Kenneson v. Kenneson, 36 N.Y.S.2d 676, 685,
178 Misc. 832; or where husband moved out on command
of wife's father. Anonymous v. Anonymous, 24 N.Y.S.2d 613,
618. Mere failure to support wife is not an abandonment
within Divorce Act. Biddle v. Biddle, 104 N.J.Eq. 313, 145
A. 639, 640; but failing to provide wife with necessities,
etc., is. Cooper v. Cooper, 176 Md. 695, 4 A.2d 714, 716.
And convict sentenced for life did not abandon wife. In
re Lindewall's Will, 18 N.Y.S.2d 281, 284, 259 App. Div. 196.
ABANDONMENT FOR TORTS. In the civil law.
The relinquishment of a slave or animal who had
committed a trespass to the person injured, in discharge of the owner's liability for such trespass or
injury. Just. Inst. 4, 8, 9. A similar right exists
in Louisiana. Fitzgerald v. Ferguson, 11 La.Ann.
396.
ABANDUN, ABANDUM, or ABANDONUM. Anything sequestered, proscribed, or abandoned.
Abandon, i. e., in bannum res missa, a thing banned or denounced as forfeited or lost, whence to
abandon, desert, or forsake, as lost and gone.
Cunningham; Cowell.
ABARNARE. Lat. To discover and disclose to a
magistrate any secret crime. Leges Canuti, cap.
10.
ABATABLE NUISANCE. A nuisance which is
practically susceptible of being suppressed, or extinguished, or rendered harmless, and whose continued existence is not authorized under the law.
Fort Worth & Denver City Ry. Co. v. Muncy, Tex.
Civ.App., 31 S.W.2d 491, 494.
Contracts
A reduction made by the creditor for the
prompt payment of a debt due by the payor or
debtor. Wesk. Ins. 7.
Debts
In equity, when equitable assets are insufficient
to satisfy fully all the creditors, their debts must
abate in proportion, and they must be content with
a dividend, for cequitas est quasi cequalitas.
Freehold
The unlawful entry upon and keeping possession of an estate by a stranger, after the death
of the ancestor and before the heir or devisee
takes possession. Such an entry is technically
called an "abatement," and the stranger an "abator." It is, in fact, a figurative expression, denoting that the rightful possession or freehold of
the heir or devisee is overthrown by the unlawful
intervention of a stranger. Abatement differs
from intrusion, in that it is always to the prejudice of the heir or immediate devisee, whereas the
latter is to the prejudice of the reversioner or
remainder-man; and disseisin differs from them
both, for to disseise is to put forcibly or fraudulently a person seised of the freehold out of possession. Brown v. Burdick, 25 Ohio St. 268. By
the ancient laws of Normandy, this term was
used to signify the act of one who, having an apparent right of possession to an estate, took possession of it immediately after the death of the
actual possessor, before the heir entered. (Howard, Anciennes Lois des Francais, tome 1, p. 539.)
Legacies
A proportional diminution or reduction of the
pecuniary legacies, when the funds or assets out
of which such legacies are payable are not sufficient to pay them in full. Ward, Leg. p. 369, c. 6,
§ 7; 1 Story, Eq. Jur. § 555; 2 Bl. Comm. 512, 513;
In re 'Hawgood's Estate, 37 S.D. 565, 159 N.W.
117, 123. Legacy accepted in lieu of dower. In re
Hartman's Estate, 233 Iowa 405, 9 N.W.2d 359, 362.
ABATAMENTUM. L. Lat. In old English law.
An abatement of freehold; an entry upon lands
by way of interposition between the death of the
ancestor and the entry of the heir. Co. Litt. 277a;
Yel. 151.
Nuisance
The removal of a nuisance. 3 Bla. Comm. 5.
See Nuisance.
ABATARE. To abate. Yel. 151.
ABATE. To throw down, to beat down, destroy,
quash. 3 Shars. Bla. Com. 168; Klamath Lumber Co. v. Bamber, 142 P. 359, 74 Or. 287. , To do
away with or nullify or lessen or diminish, In re
Stevens' Estate, Cal.App., 150 P.2d 530, 534; to
bring entirely down or demolish, to put an end to,
to do away with, to nullify, to make void, Sparks
Milling Co. v. Powell, 283 Ky. 669, 143 S.W.2d 75,
77.
See, also, Abatement; Abatement and Revival.
Taxes and Duties
A drawback or rebate allowed in certain cases
on the duties due on imported goods, in consideration of their deterioration or damage suffered
during importation, or while in store. A diminution or decrease in the amount of tax imposed
upon any person. Rogers v. Gookin, 198 Mass.
434, 85 N.E. 405 (real estate taxes); Central National Bank v. City of Lynn, 156 N.E. 42 (Shares
in national banks) 259 Mass. 1.
As applied to taxation, it presupposes error or mistake
in assessment. Gulf States Steel Co. v. U. S., C.C.A.Ala.,
56 F.2d 43, 46.
Abatement of taxes relieves property of its share of the
burdens of taxation after the assessment has been made
and the tax levied. Sheppard v. Hidalgo County, 126 Tex.
550, 83 S.W.2d 649, 657.
ABATEMENT. A reduction, a decrease, or a
diminution. The Vestris, D.C.N.Y., 53 F.2d 847,
852.
A judgment afforded a defense by way of abatement.
Panos v. Great Western Packing Co., Cal.App, , 126 P.2d
889, 892.
15
ABATEMENT
ABATEMENT AND REVIVAL
ABAVITA. A great-great-grandfather's sister.
Bract. fol. 68b. This is a misprint for abamita
(q. v.). Burrill.
Actions at Law
As used in reference to actions at law, word
abate means that action is utterly dead and cannot be revived except by commencing a new action. First Nat. Bank v. Board of Sup'rs of Harrison County, 221 Iowa 348, 264 N.W. 281, 106 A.L.R.
566.
The overthrow of an action caused by the defendant's pleading some matter of fact tending to
i mpeach the correctness of the writ or declaration,
which defeats the action for the present, but does
not debar the plaintiff from recommencing it in a
better way. 3 Bla. Comm. 301; 1 Chit. Pl. (6th
Lond. Ed.) 446; Guild v. Richardson, 6 Pick.
( Mass.) 370; Wirtele v. Grand Lodge A. 0. U. W.,
111 Neb. 302, 196 N.W. 510. See Plea in Abatement.
ABAVUNCULUS. Lat. In the civil law. A greatgreat-grandmother's brother (avavice frater).
Inst. 3, 6, 6; Dig. 38, 10, 3; Calvinus, Lex. Called
avunculus maximus. Id. 38, 10, 10, 17. Called by
Bracton and Fleta abavunculus magnus. Bract.
fol. 68b; Fleta, lib. 6, c. 2, § 19.
ABAVUS. Lat. In the civil law. A great-greatgrandfather. Inst. 3, 6, 4; Dig. 38, 10, 1, 6; Bract.
fol. 67a.
ABBACINARE. To blind by placing a burning
basin or red-hot irons before the eye's. A form of
punishment in the Middle Ages. Also spelt
abacinare. The modern Italian is spelt with two
b's, and means to blind. Abbacination. Blinding
by placing burning basin or red-hot irons before
the eyes. See Abbacinare.
To put a final end to suit, Dodge v. Superior Court in
and for Los Angeles County, 139 Cal.App. 178, 33 P.2d 695,
696; overthrow of pending action apart from cause of
action, Burnand v. Irigoyen, 56 Cal.App.2d 624, 133 P.2d
3, 6.
ABBACY. The government of a religious house,
and the revenues thereof, subject to an abbot, as
a bishopric is to a bishop. Cowell. The rights
and privileges of an abbot.
On plaintiff's death, Piukkula v. Pillsbury Astoria
Flouring Mills Co., 150 Or. 304, 44 P.2d 162, 99 A.L.R. 259.
Mere lapse of time between the death of a party and the
taking of necessary steps to continue the action by or
against the heir or personal representative does not work
an abatement, Whaley v. Slater, 202 S.C. 182, 24 S.E.2d
266, 267.
ABBEY. A monastery or nunnery for the use of
an association of religious persons, having an abbot or abbess to preside over them.
Cause of Action
Destruction of cause of action. In re Thomasson, Mo., 159 S.W.2d 626, 628.
ABBOT. A prelate in the 13th century who had
had an immemorial right to sit in the national
assembly. Taylor, Science of Jurispr. 287.
Chancery Practice
It differs from an abatement at law in this:
that in the latter the action is entirely dead and
cannot be revived; but in the former the right to
proceed is merely suspended, and may be revived;
F. A. Mfg. Co. v. Hayden & Clemons, C.C.A.Mass.,
273 F. 374; Mutual Ben. Health & Accident Ass'n
v. Teal, D.C.S.C., 34 F.Supp. 714, 716.
ABBOT, ABBAT. The spiritual superior or governor of an abbey. Feminine, Abbess.
ABBREVIATE OF ADJUDICATION. In Scotch
law. An abstract of the decree of adjudication,
and of the lands adjudged, with the amount of the
debt. Adjudication is that diligence (execution)
of the law by which the real estate of a debtor is
adjudged to belong to his creditor in payment of a
debt; and the abbreviate must be recorded in the
register of adjudications.
In England, declinatory pleas to the jurisdiction and
dilatory to the persons were (prior to the judicature act)
sometimes, by analogy to common law, termed "pleas In
abatement."
Declinatory and dilatory pleas, see Story, Eq. Pl. § 708.
Death of one of parties, Geiger v. Merle, 360 Ill. 497, 196
N.E. 497, 502. Want of proper parties, 2 Tidd Pr. 932;
Story, Eq.P1. § 354; Witt v. Ellis, 2 Cold., Tenn., 38; petition for widow's allowance, In re Samson's Estate, 142 Neb.
556, 7 N.W.2d 60, 62, 144 A.L.R. 264.
ABBREVIATIO PLACITORUM. An abstract of
ancient judicial records, prior to the Year Books.
See Steph. Pl. (7th Ed.) 410.
ABBREVIATIONS. Shortened conventional expressions, employed as substitutes for names,
phrases, dates, and the like, for the saving of
space, of time in transcribing, etc. Abbott.
ABATOR. In real property law, a stranger who,
having no right of entry, contrives to get possession of an estate of freehold, to the prejudice of
the heir or devisee, before the latter can enter,
after the ancestor's death. Litt. § 397. In the
law of torts, one who abates, prostrates, or destroys a nuisance.
The abbreviations in common use in modern times consist of the initial letter or letters, syllable or syllables, of
the word. Anciently, also, contracted forms of words,
obtained by the omission of letters intermediate between
the initial and final letters were much in use. These latter forms are now more commonly designated by the term
contraction.
For Table of Abbreviations, see Appendix.
ABATUDA. Anything diminished. Moneta abatuda is money clipped or diminished in value.
Cowell; Dufresne.
ABBREVIATIONUM ILLE NUMERUS ET SENSUS ACCIPIENDUS EST, UT CONCESSIO NON
SIT INANIS. In abbreviations, such number and
sense is to be taken that the grant be not made
void. 9 Coke, 48.
ABAVIA. Lat. In the civil law. A great-greatgrandmother. Inst. 3, 6, 4; Dig. 38, 10, 1, 6;
Bract. fol. 68b.
16
ABETTOR
ABBREVIATORS. In ecclesiastical law. Officers
whose duty it is to assist in drawing up the Pope's
briefs, and reducing petitions into proper form to
be converted into papal bulls.
ABBROCHMENT, or ABBROACHMENT. The act
of forestalling a market, by buying up at wholesale the merchandise intended to be sold there,
for the purpose of selling it at retail. See Forestalling the Market.
ABBUTTALS. See Abuttals.
ABDICATION. The act of a sovereign in renouncing and relinquishing his government or
throne, so that either the throne is left entirely
vacant, or is filled by a successor appointed or
elected beforehand.
Also, where a magistrate or person in office
voluntarily renounces or gives it up before the
time of service has expired.
The act of abdicating ; giving up of office, power or authority, right or trust; renunciation. McCormick v. Engstrom, 119 Kan. 698, 241 P. 685, 688.
Abdication of rights to property may constitute an
assignment. In re Johnston's Estate, 186 Wis. 599, 203
N.W. 376, 377.
It differs from resignation, in that resignation is made
by one who has received his office from another and
restores it into his hands, as an inferior into the hands of
a superior; abdication is the relinquishment of an office
which has devolved by act of law. It is said to be a
renunciation, quitting, and relinquishing, so as to have
nothing further to do with, a thing, or the doing of such
actions as are inconsistent with the holding of it. Chambers.
ABDITORIUM. An abditory or hiding place, to
hide and preserve goods, plate or money. Jacob.
right murder, as distinguished from the less
heinous crime of manslaughter, or chance medley.
Spelman; Cowell; Blount.
ABESSE. Lat. In the civil law. To be absent;
to be away from a place. Said of a person who
was extra continentia urbis, (beyond the suburbs
of the city.)
ABET. A French word combined of two words
"a" and ."beter"—to bait or excite an animal. It
includes knowledge of the wrongful purpose of the
perpetrator and counsel and encouragement in
the crime. People v. Terman, 4 Cal.App.2d 345, 40
P.2d 915, 916.
To encourage, incite, or set another on to commit a crime. This word is always applied to aiding the commission of a crime. To abet another
to commit a murder is to command, procure, or
counsel him to commit it, Old Nat. Brev. 21; Co.
Litt. 475; to command, procure, counsel, encourage, induce, or assist, Short v. Commonwealth, 240
Ky. 477, 42 S.W.2d 696, 697; to encourage, counsel,
induce, or assist, State v. Watts, Nev., 296 P. 26.
To facilitate the commission of a crime, promote
its accomplishment, or help in advancing or bringing it about. State v. Lord, 42 N.M. 638, 84 P.2d 80,
86. It includes knowledge of wrongful purpose of
perpetrator. Daniels v. State, 58 Ga.App. 599,
199 S.E. 572, 577. State v. Kneedy, 232 Iowa 21,
3 N.W.2d 611, 615. People v. Stein, 55 Cal.App.2d
417, 130 P.2d 750, 751 (permitting wife to remain
in house of prostitution).
See Abettor; Aid and Abet.
"Aid" and "abet" are nearly synonymous terms as generally used; but, strictly speaking, the former term does
not imply guilty knowledge or felonious intent, whereas
the word "abet" includes knowledge of the wrongful purpose and counsel and encouragement in the commission of
the crime. Forgery, People v. Dole, 122 Cal. 486, 55 P.
581, 68 Am.St.Rep. 50; Raiford v. State, 59 Ala. 106;
Violation of law against free passes, State v. Ankrom, 86
W.Va. 570, 103 S.E. 925, 927; Crime against nature, State
v. Start, 65 Or. 178, 132 P. 512, 513; Robbery, People v.
Powers, 293 Ill. 600, 127 N.E. 681, 682.
Instigate synonymous (malicious prosecution) Hughes v.
Van Bruggen, 44 N.M. 534, 105 P.2d 494, 499.
"Abet" smacks more of technical terminology than does
the word "aid", but it is almost synonymous with the
word "aid". Assault and battery, Gentry v. State, 65 Ga.
App. 100, 15 S.E.2d 464, 465.
ABDUCTION. In criminal law. The offense of
taking away a wife, child, or ward, by fraud and
persuasion, or open violence. 3 Bl.Comm. 139-141;
State v. Chisenhall, 106 N.C. 676, 11 S.E. 518 (female under 14) ; State v. Hopper, 186 N.C. 405,
119 S.E. 769, 772 (wife).
To take away surreptitiously by force in kidnapping. Doss v. State, 220 Ala. 30, 123 So. 231,
232, 68 A.L.R. 712.
The unlawful taking or detention of any female
for purposes of marriage, concubinage, or prostitution. 4 Steph.Com. 84; People v. Crotty, 55
Hun, 611, 9 N.Y.S. 937. In many states this offense is created by statute and in most cases applies to females under a given age.
By statute in some states, abduction includes
the withdrawal of a husband from his wife, as
where another woman alienates his affection and
entices him away and causes him to abandon his
wife. Humphrey v. Pope, 122 Cal. 253, 54 P. 847.
ABETTATOR. L. Lat. In old English law. An
abettor. Fleta, lib. 2, c. 65, § 7. See Abettor.
ABETTOR. In criminal law. An instigator, or
setter on; one who promotes or procures a crime
to be committed. Old Nat.Brev. 21. One who
commands, advises, instigates, or encourages another to commit a crime; a person who, being
present or in the neighborhood, incites another to
commit a crime, and thus becomes a principal.
See State v. Baldwin, 193 N.C. 566, 137 S.E. 590,
591.
ABEARANCE. Behavior; as a recognizance to
be of good abearance signifies to be of good behavior. 4 Bl.Comm. 251, 256.
Must have rendered assistance or encouragement to the
perpetrator of the crime with knowledge of his felonious
intent; offense of "aiding and abetting" being committed
by person present who does some act or speaks some word
aiding the actual perpetrator of the crime. Combs v.
Commonwealth, 224 Ky. 653, 6 S.W.2d 1082, 1083. Must
ABEREMURDER. (From Sax. abere, apparent,
notorious; and mord, murder.) Plain or downBlack's Law Dictionary Revised 4th Ed.-2
17
ABETTOR
aid or commit some overt act or act of encouragement.
Long v. Commonwealth, 288 Ky. 83, 155 S.W.2d 246, 247.
One who so far participates in the commission of the
offense as to be present for the purpose of assisting if
necessary. State v. Epps, 213 N.C. 709, 197 S.E. 580, 583.
The distinction between abettors and accessories is the
presence or absence at the commission of the crime.
Cowell; Fleta, lib. 1, c. 34. Presence and participation are
necessary to constitute a person an abettor. 4 Sharsw.Bla.
Comm. 33; Bradley v. Commonwealth, 201 Ky. 413, 257 S.
W. 11, 13. Common design to take life not necessary.
State v. Lord, 42 N.M. 638, 84 P.2d 80, 86. Not essential
that there should be a prearrangement or mutual understanding or concert of action. McKinney v. • Commonwealth, 284 Ky. 16, 143 S.W.2d 745, 747, 748.
he founds, in an action where the deed or writing
is attacked as forged. Pat.Comp.. It has the effect of pledging the party to stand the consequences of founding on a forged deed. Bell.
"Abide by" means to adhere to, to submit to, to
obey, to accept the consequences of. Detroit
Fidelity & Surety Co. v. U. .S., C.C.A.Ohio, 36 F.2d
682, 683. (Recognizance)
To abide by an award means to await the award without revoking the submission. It does not mean to "acquiesce in" or "not dispute," in the sense of not being at
liberty to contest the validity of the award when made,
Hunt v. Wilson, 6 N.H. 36; Quimby v. Melvin, 35 N.H.
198; Weeks v. Trask, 81 Me. 127, 16 A. 413, 2 L.R.A. 532.
ABEYANCE. In the law of estates. In expectation, remembrance, and contemplation of law;
the condition of a freehold when there is no person in being in whom it is vested.
In such cases the freehold has been said to be in nubibus
(in the clouds), McKown v. McKown, 93 W.Va. 689, 117
S.E. 557, 559; in pendenti (in suspension) ; and in gremio
legis (in the bosom of the law). Where there is a tenant
of the freehold, the remainder or reversion in fee may
exist for a time without any particular owner, in which
case it is said to be in abeyance; Lyle v. Richards, 9 S.
& R. Pa. 367; 3 Plowd. 29 a, b, 35 a; 1 Washb.R.P. 47.
Franchise of a corporation; Trustees of Dartmouth
College v. Woodward, 4 Wheat. (U. S.) 691, 4 L.Ed. 629.
Personal property as in case of a vessel captured at sea
from its captors until it becomes invested with the character of a prize; 1 Kent, 102; 1 C.Rob.Adm. 139; 3 id.
97, n.; or the rights of property of a bankrupt, pending
adjudication; Bank v. Sherman, 101 U.S. 403, 25 L.Ed.
866.
A condition of being undetermined. Fenn v. American
Rattan & Reed Mfg. Co., 75 Ind. App. 146, 130 N.E. 129, 130.
(Seller stating its inability to promise to deliver.)
Sales to third parties, of property acquired by county at
tax sale, being held in "abeyance", means that certain
rights or conditions are in expectancy. Willard v. Ward
County, 72 N.D. 291, 6 N.W.2d 566, 568.
ABIATICUS, or AVIATICUS. L. Lat. In feudal
law. A son's son; a grandson in the male line.
Du Cange, Avius; Spelman; Lib.Feud., Baraterii,
tit. 8, cited Id.
ABIDE. To accept the consequences of ; to rest
satisfied with; to wait for.
With reference to an order, judgment, or decree of a
court, to perform, to execute. Jackson v. State, 30 Kan.
88, 1 P. 317. Where a statute provides for a recognizance
"to abide the judgment of the court," one conditioned "to
await the action of the court" is not sufficient; Wilson v.
State, 7 Tex.App. 38. Defendant does not "abide the
judgment" until costs of appeal are paid. Ex parte Tillery, 22 Ala.App. 193, 114 So. 15. And see State v. Gregory, 205 Iowa, 707, 216 N.W. 17, 19.
Defendant's presence in courtroom not a compliance
with supersedeas bond conditioned to "abide final judgment," where there was no formal offer to surrender
defendant into court's custody. American Surety Co. of
New York v. State, 50 Ga.App. 777, 179 S.E. 407.
To abide and satisfy is used to express the execution or
performance of a judgment or order by carrying it into
complete effect, Erickson v. Elder, 34 Minn. 371, 25 N.W.
804, Cf. Woolfolk v. Jones, D.C.Va., 216 F. 807, 809.
Where costs are to abide final result, "abide" is synonymous with conform to. Getz v. Johnston, 145 Md. 426, 125
A. 689, 691.
To abide order respecting seized property, means to perform, obey, conform to. Cantor v. Sachs, 18 Del.Ch. 359,
162 A. 73, 84.
ABIDING CONVICTION. A definite conviction of
guilt derived from a thorough examination of the
whole case. Hopt v. Utah, 7 S.Ct. 614, 120 U.S.
439, 30 L.Ed. 708. A settled or fixed conviction.
Davis v. State, 8 Ala.App. 147, 62 So. 1027, 1033.
People v. Castro, 68 Cal.App.2d 491, 157 P.2d 25,
30.
ABIDING FAITH. Belief or confidence in the
guilt of one accused of crime which remains or
continues in the minds of the jury. Gray v. State.
56 Okl.Cr. 208, 38 P.2d 967, 970.
ABIGEATORES. See Abigeus.
ABIGEATUS. Lat. In the civil law. The offense
of stealing or driving away cattle. See Abigeus.
ABIGEI. See Abigeus.
ABIGERE. Lat. In the civil law. To drive away.
Applied to those who drove away animals with
the intention of stealing them. Applied, also, to
the similar offense of cattle stealing on the borders
between England and Scotland. See Abigeus.
To drive out; to expel by force; to produce
abortion. Dig. 47, 11, 4.
ABIGEUS. Lat. (P1., abigei, or more rarely
abigeatores.) In the civil law. A stealer of cattle; one who drove or drew away (subtraxit)
cattle from their pastures, as horses or oxen from
the herds, and made booty of them, and who followed this as a business or trade.
The term was applied also to those who drove away the
smaller animals, as swine, sheep, and goats. In the latter
case, it depended on the number taken, whether the
offender was fur (a common thief) or abigeus. But the
taking of a single horse or ox seems to have constituted
the crime of abigeatus. And those who frequently did this
were clearly abigei, though they took but an animal or
two at a time. Dig. 47, 14, 3, 2. See Cod. 9, 37; Nov. 22,
c. 15, § 1; 4 Bl.Comm. 239.
ABILITY. When the word is used instatutes, it
is usually construed as referring to pecuniary
ability, as in the construction of Tenterden's Act
(q. v.) ; 1 M. & W. 101.
Contemplates earning capacity as well as property actually owned, to support abandoned wife; State v. Witham,
70 Wis. 473, 35 N.W. 934, Contra, Washburn v. Washburn, 9
Cal. 475.
The ability to buy, required in a purchaser as a condition to the broker's right to a commission, is the financial
ABIDING BY. In Scotch law. A judicial declaration that the party abides by the deed on which
18
ABNEPOS
absolute freedom from all physical ailment. It
imports an absence of those palpable and visible
defects which evidently incapacitate the person
from performing the ordinary duties of a soldier.
Darling v. Bowen, 10 Vt. 152. Ability to perform
ordinary labor is not the test. Town of Marlborough v. Sisson, 26 Conn. 57.
ability to meet the required terms of the sale, and does
not mean solvency or ability to respond in damages for a
breach of the contract. Stewart v. Sisk, 29 Ga.App. 17, 114
S.E. 71. See Able to Purchase.
A voter's "ability to read" within meaning of election
statutes is satisfied if he can read in a reasonably intelligent manner sentences composed of words in common use
and of average difficulty, although each word may not be
always accurately pronounced, and "ability to write" is
satisfied if he can by use of alphabetical signs express in a
fairly legible way words of common use and average difficulty, though each word may not be accurately spelled.
Williams v. Hays, 175 Ky. 170, 193 S.W. 1046, 1047. But the
mere ability to write one's name and post office address,
and nothing more, is insufficient. Murrel v. Allen, 180 Ky.
604, 203 S.W. 313, 314.
ABLE SEAMAN. A grade of merchant seamen.
46 U.S.C.A. § 672.
ABLE TO EARN. The phrase in the Workmen's
Compensation Act in reference to wages does not
mean the maximum sum earned in any one week,
but a fair average of the weekly wages which anemployee is able to earn covering a sufficient
period of time to determine his earning capacity.
Reeves v. Dietz, 1 La.App. 501, 505. See also, Mt.
Olive & Staunton Coal Co. v. Industrial Commission, 301 Ill. 521, 134 N.E. 16. Amount one is
capable of earning if employed. Ferrara v. Clifton Wright Hat Co., 125 Conn. 140, 3 A.2d 842, 843.
ABISHERING, or ABISHERSING. Quit of
amercements. It originally signified a forfeiture
or amercement, and is more properly mishering,
mishersing, or miskering, according to Spelman.
It has since been termed a liberty of freedom, because, wherever this word is used in a grant, the
persons to whom the grant is made have the forf•itures and amercements of all others, and are
themselves free from the control of any within
their fee. Termes de la Ley, 7.
Ability to obtain and hold employment means that the
person referred to is either able or unable to perform the
usual duties of whatever employment may be under consideration, in the manner that such duties are customarily
performed by the average person engaged in such employment. Kinyon v. Kinyon, 230 Mo.App. 623, 71 S.W.2d 78,
82.
ABJUDICATIO. In old English law. The depriving of a thing by the judgment of a court; a
putting out of court; the same as forisjudicatio,
forjudgment, forjudger. Co.Litt. 100a, b; Townsh.
Pl. 49. A removal from court. Calvinus, Lex.
Used to indicate an adverse decision in a writ
of right: Thus, the land is said to be abjudged
from one of the parties and his heirs. 2 Poll. &
Maitl. 62.
ABLE TO PURCHASE "Ability" in sales contracts, dependent on ability to purchase, usually
means financial ability. Anderson v. Craig, 111
Mont. 182, 108 P.2d 205, 206; House v. Hornburg,
Sup., 39 N.Y.S.2d 20, 22. Purchaser must have
financial ability and legal capacity to acquire
land. Campbell v. Hood, Tex.Com.App., 35 S.W.2d
93, 95, 85 A.L.R. 266.
ABJURATION. A renunciation or abandonment
by or upon oath.
Purchaser is able to purchase, as respects broker's
right to commission, if he is financially able to command
the necessary funds to close the deal within the time
required. Hersh v. Garau, 218 Cal. 460, 23 P.2d 1022.
Even though part of the money must be obtained on the
purchased property itself. Pellaton v. Brunski, 69 Cal.
App. 301, 231 P. 583, 584. But see Bateman v. Richard,
105 Okl. 272, 232 P. 443, 445; and Reynor v. Mackrill, 181
Iowa 210, 164 N.W. 335, 1 A.L.R. 523, holding that a
person, to be able to purchase, must have the money for
the cash payment, and not merely property on which he
could raise it. See, also, Peters v. Mullins, 211 Ky. 123,
277 S.W. 316, 317. See Financially Able.
The oath by which any person holding office in England
was formerly obliged to bind himself not to acknowledge
any right in the Pretender to the throne of England; 1
Bla.Com. 368; 13 and 14 W. III, c. 6, repealed by 30 and
31 Vic. c. 59.
It also denotes an oath abjuring certain doctrines of the
church of Rome.
ABJURATION OF ALLEGIANCE. A naturalized
citizen of the United States, must declare that he
doth renounce and abjure all allegiance and fidelity which he owes to any foreign prince, state, etc.
8 U.S.C.A. § 735.
ABLEGATI. Papal ambassadors of the second
rank, who are sent to a country where there is
not a nuncio, with a less extensive commission
than that of a nuncio. This title is equivalent to
envoy.
ABJURATION OF THE REALM. In ancient
English law. A renunciation of one's country, a
species of self-imposed banishment, under an oath
never to return to the kingdom unless by permission. 4 Bl.Comm. 332; Avery v. Everett, 110 N.Y.
317, 18 N.E. 148, 1 L.R.A. 264. See Abjure.
ABLOCATIO. A letting out to hire, or leasing for
money. Calvin. Sometimes used in the English
form "ablocation."
ABMATERTERA. Lat. In the civil law. A greatgreat-grandmother's sister, (abavice soror). Inst.
3, 6, 6; Dig. 38, 10, 3. Called matertera maxima.
Id. 38, 10, 10, 17. Called, by Bracton, abmatertera
magna. Bract. fol. 68b.
ABJURE. To renounce, or abandon, by or upon
oath. See Abjuration.
A departure from the state without the intention of
returning, and not a renunciation of one's country, upon
an oath of perpetual banishment, as the term originally
i mplied. Mead v. Hughes, 15 Ala. 148, 1 Am.Rep. 123.
ABNEPOS. Lat. A great-great-grandson. The
grandson of a grandson or granddaughter. Calvinus, Lex.
ABLE-BODIED. As used in a statute relating to
service in the militia, this term does not imply an
19
ABNEPTIS
life. The unlawful destruction, or the bringing
forth prematurely, of the human foetus before the
natural time of birth; State of Magnell, 51 A.
606, 3 Pennewill (Del.) 307. The act of bringing
forth what is yet imperfect. Also the thing prematurely brought forth, or product of an untimely
process. Sometimes loosely used for the offense
of procuring a premature delivery; but strictly,
the early delivering is the abortion; causing or
procuring abortion is the full name of the offense.
Wells v. New England Mut. L. Ins. Co., 191 Pa.
207, 43 A. 126, 53 L.R.A. 327.
ABNEPTIS. Lat. A great-great-granddaughter.
The granddaughter of a grandson or granddaughter. Calvinus, Lex.
ABODE. One's home; habitation; place of dwelling; or residence. Ordinarily means "domicile."
Hanson v. Williams, 170 Ga. 779, 154 S.E. 240, 242.
Living place impermanent in character. Fowler
v. Fowler, 156 Fla. 316, 22 So.2d 817, 818. Evans
v. Evans, 141 Fla. 860, 194 So. 215, 217. The place
where a person dwells. Dorsey v. Brigham, 177
Ill. 250, 52 N.E. 303, In re Erickson, 18 N.J.Misc.
5, 10 A.2d 142, 146.
Criminal miscarriage, Commonwealth v. Sierakowski,
154 Pa.Super. 321, 35 A.2d 790, 792; Mississippi State
Board of Health v. Johnson, 197 Miss. 417, 19 So.2d 445,
448. "Abortion" and a "miscarriage produced by unlawful
means" are synonymous, People v. Luckett, 23 Ca1.App.2d
539, 73 P.2d 658, 659.
Residence of a legal voter. Fry's Election Case, 71 Pa.
302, 10 Am.Rep. 698; Dale v. Irwin, 78 Ill. 181; Pope v.
Board of Election Com'rs, 370 Ill. 196, 18 N.E.2d 214, 216.
Fixed place of residence for the time being. Augustus
Co, for Use of Bourgeois v. Manzella, 19 N.J.Misc. 29, 17
A.2d 68, 70; Hudson v. Birmingham Water Works Co., 238
Ala. 38, 189 So. 72, 73. For service of process, one's fixed
place of residence for the time being. State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147; Kurilla v.
Roth, 132 N.J.L. 213, 38 A.2d 862, 864.
ABORTIONIST. One who criminally produces
abortions, or one who follows business or practices of crime of producing abortions. State v.
Guaraneri, 59 R.I. 173, 194 A. 589, 592, 593.
ABOGADO. Sp. An advocate. See Bozero,
ABORTIVE TRIAL. A term descriptive of the
result when a case has gone off, and no verdict
has been pronounced, without the fault, contrivance, or management of the parties. Jebb & B.
51.
ABOLISH. To do away with wholly; to annul.
Webster. To dispense with. Alexander v. City of
Lampasas, Tex.Civ.App., 275 S.W. 614, 616. Put
an end to. Stretch v. Murphy, 166 Or. 439, 112 P.
2d 1018, 1021.
Imports absolute destruction, having its root in the
Latin word "abolere," meaning to destroy utterly. Applies
particularly to things of a permanent nature, such as
institutions, usages, customs, as the abolition of slavery.
Pondelick v. Passaic County, 111 N.J.Law 187, 168 A. 146,
147.
ABOLITION. The destruction, annihilation, abrogation, or extinguishment of anything. Peterson
v. Pratt, 183 Iowa 462, 167 N.W. 101. Also the
leave given by the sovereign or judges to a criminal accuser to desist from further prosecution.
25 Hen. VIII, c. 21.
In the Civil, French and German law, abolition is used
nearly synonymously with pardon, remission, grace. Dig.
39, 4, 3, 3. There is, however, this difference : grace is
the generic term; pardon, according to those laws, is the
clemency which the prince extends to a man who has participated in a crime, without being a principal or accomplice; remission is made in cases of involuntary homicides,
and self-defence. Abolition is used when the crime cannot be remitted. The prince then may, by letters of abolition, remit the punishment, but the infamy remains, unless letters of abolition have been obtained before sentence.
Encycl. de D'Alembert.
Abolition of position or office, Rexstrew v. City of Huntington Park, Cal.App., 120 P.2d 136, 142. Positions of physicians and dentists, Lewin v. La Guardia, 22 N.Y.S.2d 409,
411, 175 Misc. 165. Lay-off of court attendant, Pondelick
v. Passaic County, 111 N.J.L. 187, 168 A. 146, 147. Transfer not an abolition of office, Tremp v. Patten, 132 Conn.
120, 42 A.2d 834, 837.
ABORDAGE. Fr. In French commercial law.
Collision of vessels.
ABORTIFACIENT. In medical jurisprudence. A
drug or medicine capable of, or used for, producing abortion.
ABORTION. The expulsion of the fcetus at a period of utero-gestation so early that it has not
acquired the power of sustaining an independent
ABORTUS. Lat. The fruit of an abortion; the
child born before its time, incapable of life.
ABOUT. Near in time, quantity, number, quality,
or degree. Substantially, approximately, almost,
or nearly. Odom v. Langston, 351 Mo. 609, 173
S.W.2d 826, 829. Testimony as to speed, Casto v.
Hansen, 123 Or. 20, 261 P. 428, 429. Near, period
of gestation of still born child, Life & Casualty
Ins. Co. v. Walters, 190 Miss. 761, 198 So. 746,
748; Todd v. City of New York, City Ct., N.Y. 23
N.Y.S.2d 884, 888. Carrying burglar's tools in
suitcase, Trousdale v. State, 168 Tenn. 210, 76 S.W.
2d 646, 647. Near the time. State ex rel. Nagle
v. Leader Co., 97 Mont. 586, 37 P.2d 561, 564.
When used with reference to time, the term is of flexible
significance, varying with the circumstances and the connection in which it is employed. Burlington Grocery Co.
v. Heaphy's Estate, 98 Vt. 122, 126 A. 525, 528. But its
use does not necessarily render time immaterial, nor make
a contract one terminable at will. Costello v. Siems-Carey
Co., 140 Minn. 208, 167 N.W. 551, 552. In a charter party,
"about to sail" means just ready to sail. [1893] 2 Q.B.
274. And when it is said that one is "about" to board a
street car, it means "in the act of." Fox v. Denver City
Tramway Co., 57 Colo. 511, 143 P. 278, 280. With relation
to quantity, the term suggests only an estimate of probable
amount. Barkemeyer Grain & Seed Co. v. Hannant, 66
Mont. 120, 213 P. 208, 210. Its import is that the actual
quantity is a near approximation to that mentioned, and
it has the effect of providing against accidental variations. Norrington v. Wright, 6 S.Ct. 12, 115 U.S. 188, 29
L. Ed. 366. It may be given practically the same effect as
the phrase more or less. Pierce v. Miller, 107 Neb. 851,
187 N.W. 105, 107; Cargo under vessel charter, Steamship
Co. of 1912 v. C. H. Pearson & Son Hardwood Co., C.C.A.
N.Y., 30 F.2d 770, 773. Contract for sale of electric energy,
Merced Irr. Dist. v. San Joaquin Light & Power Corporation, 101 Cal.App. 153, 281 P. 415, 417. In a deed covers
some slight or unimportant inaccuracy. Parrow v. Proulx,
111 Vt. 274, 15 A.2d 835, 838. Synonymous with "on" or
"upon," as in offense of carrying concealed weapons.
State v. Brunson, 162 La. 902, 111 So. 321, 323; Carriage of
a pistol or revolver in a grip, satchel, or hand bag held in
20
ABSCONDING
the hand or connected with the person, State v. Blazovitch, 88 W.Va. 612, 107 S.E. 291, or on the running board
of an automobile, Armstrong v. State, 98 Tex.Cr.R. 335,
265 S.W. 701. Paulk v. State, 97 Tex.Cr.R. 415, 261 S. W.
779, 780. Near by, close at hand, convenient of access.
Welch v. State, 97 Tex.Cr.R. 617, 262 S.W. 485; Brown v.
U. S., 30 F.2d 474, 475, 58 App.D.C. 311. Weapon on shelf
i mmediately behind defendant, who was seated in coupe
type automobile. Hampton v. Commonwealth, 257 Ky. 626,
78 S.W.2d 748, 750. As to number, it merely implies an
estimate of a particular lot or class and not a warranty.
Holland v. Rock, 50 Nev. 340, 259 P. 415. In connection
with distance or locality, the term is of relative significance, varying with the circumstances. Parker v. Town of
Pittsfield, 88 Vt. 155, 92 A. 24, 26. Employee on an elevator is "about the premises". Lienau v. Northwestern
Telephone Exch. Co., 151 Minn. 258, 186 N.W. 945, 946.
Workman 200 feet from a factory was "about" the factory.
Wise v. Central Dairy Co., 121 Kan. 258, 246 P. 501, 503.
1
An automobile mechanic injured 17 /2 blocks from the employers' shop while making a road test of an automobile
is not , injured on, in, or about the employers' place of
business. Iott v. Mosby, 126 Kan. 294, 268 P. 109. "About"
in lease meaning in other parts of building. William A.
Doe Co. v. City of Boston, 262 Mass. 458, 160 N.E. 262.
Estimate of distance, Picharella v. Ovens Transfer Co., 135
Pa.Super. 112, 5 A.2d 408, 409. Estimate as to time, charter of vessel, Britain S. S. Co. v. Munson S. S. Line. D.C.
N.Y., 25 F.2d 868, 869. Instruction regarding specified
date, State v. Loahmann, Mo., 58 S.W.2d 309, 311. Courses
and distances, Humble Oil & Refining Co. v. Luther, Tex.
Civ.App., 40 S.W.2d 865, 867. Pistol under automobile seat.
Commonwealth v. Nunnelley, 56 S.W.2d 689, 247 Ky. 109,
88 A.L.R. 805.
abridge requires the exercise of the mind; it is
not copying. Between a compilation and an
abridgment there is a clear distinction. A compilation consists of selected extracts from different
authors; an abridgment is a condensation of the
views of one author. Story v. Holcombe, 4 McLean, 306, 310, Fed.Cas.No.13,497.
Practice
To shorten a declaration or count by taking
away or severing some of the substance of it.
Brooke, Abr., Com., Dig. Abridgment; 1 Viner,
Abr. 109. See Abridgment.
ABRIDGMENT. Condensation; contraction. An
epitome or compendium of another and larger
work, wherein the principal ideas of the larger
work are summarily contained.
Abridgments of the law are brief digests of the law,
arranged alphabetically. (1 Steph.Comm. 51.) The term
"digest" has now supplanted that of "abridgment."
Sweet.
ABRIDGMENT OF DAMAGES. The right of the
court to reduce the damages in certain cases.
Vide Brooke, tit. "Abridgment."
ABROAD. In English chancery law, beyond the
seas.
ABOUTISSEMENT. Fr. An abuttal or abutment.
See Guyot, Repert. Univ. "Aboutissans."
ABROGATE. To annul, repeal, or destroy; to
annul or repeal an order or rule issued by a subordinate authority; to repeal a former law by
legislative act, or by usage.
ABOVE. Higher; superior. As, court above, plaintiff or defendant above. Above all incumbrances
means in excess thereof ; Williams v. McDonald,
42 N.J.Eq. 395, 7 A. 886. Principal; as distinguished from what is auxiliary or instrumental.
3 Bl.Comm. 291.
ABROGATION. The destruction or annulling of
a former law, by an act of the legislative power,
by constitutional authority, or by usage.
Bail to the action, or special bail, is otherwise termed
bail above. 3 Bl.Comm. 291. Jurisdiction "above" the jurisdiction of justices of the peace. Synonymous with
"without." Atlantic Coast Line R. Co. v. Nellwood Lumber Co., 21 Ga.App. 209, 94 S.E. 86, 87. Above high water
means above a tide which might reasonably be expected to
recur with some degree of frequency. Banks v. Wilmington Terminal Co., Del.Super., 24 A.2d 592, 598, 599, 601,
602, 2 Terry 489.
It stands opposed to rogation; and is distinguished from
derogation, which implies the taking away only some part
of a law; from subrogation, which denotes the adding a
clause to it; from dispensation, which only sets it aside in
a particular instance; and from antiquation, which is the
refusing to pass a law. Encyc. Lond. Implied abrogation
takes place when the new law contains provisions which
are positively contrary to former laws, without expressly
abrogating such laws. Bernard v. Vignaud, 10 Mart.O.S.
La. 560; and also when the order of things for which
the law . has been made no longer exists. See Ex parte
Lum Poy, D.C., 23 F.2d 690.
ABOVE CITED, or MENTIONED. Quoted before. A figurative expression taken from the
ancient manner of writing books on scrolls, where
whatever is mentioned or cited before in the same
roll must be above. Encyc. Lond.
For "Express Abrogation," see that title.
ABSCOND. To go in a clandestine manner out
of the jurisdiction of the courts, or to lie concealed, in order to avoid their process. Malvin .v.
Christoph, 54 Iowa, 562, 7 N.W. 6. To hide, conceal, or absent oneself clandestinely, with the intent to avoid legal process. Smith v. Johnson, 43
Neb. 754, 62 N.W. 217. Postponing limitations.
Keck v. Pickens, 207 Ark. 757, 182 S.W.2d 873, 875.
Fleeing from arresting or prosecuting officers of
this state. Code Cr.Proc. art. 8. State v. Berryhill, 188 La. 549, 177 So. 663.
ABPATRUUS. Lat. A great-great-uncle; or, a
great-great-grandfather's brother (a bavi frater).
Inst. 3, 6, 6; Dig. 38, 10, 3; Du Cange, Patruus.
Called by Bracton and Fleta, abpatruus magnus.
Bract. fol. 68b; Fleta, lib. 6, c. 2, § 17. It sometimes means uncle, and sometimes great-uncle.
ABRIDGE. To reduce or contract; usually spoken
of written language.
ABSCONDING DEBTOR. One who absconds
from his creditors.
Copyright Law
To epitomize; to reduce; to contract. It implies preserving the substance, the essence, of a
work, in language suited to such a purpose. In
making extracts there is no condensation of the
author's language, and hence no• abridgment. To
An absconding debtor is one who lives without the state,
or who has intentionally concealed himself from his creditors, or withdrawn himself from the reach of their suits,
with intent to frustrate their just demands. Thus, if a
person departs from his usual residence, or remains absent
therefrom, or conceals himself in his house, so that he can-
21
ABSENCE
not be served with process, with intent unlawfully to delay or defraud his creditors, he is an absconding debtor;
but if he departs from the state or from his usual abode,
with the intention of again returning, and without any
fraudulent design, he has not absconded, nor absented
himself, within the intendment of the law. Doughnut
Corporation of America v. Tsakirides, 121 N.J.L. 136, 1
A.2d 467, 469. A party may abscond, and subject himself
to the operation of the attachment law against absconding
debtors, without leaving the limits of the state. Field v.
Adreon, 7 Md. 209. A debtor who is shut up from his
creditors in his own house is an absconding debtor. Ives
v. Curtiss, 2 Root (Conn.) 133. Salzman v. Robinson, 10
N.J.Misc.R. 51, 157 A. 547, 548.
ABSENT-MINDEDNESS. A state of mind in
which the person affected fails to respond to the
ordinary demands on his attention. Webster. See
Racine Tire Co. v. Grady, 205 Ala. 423, 88 So. 337.
ABSENTE, Lat. Being absent; often used in the
old reports of one of the judges not present at the
hearing of a cause. 2 Mod. 14. Absente Reo,
The defendant being absent.
ABSENTEE. One who dwells abroad; a landlord who resides in a country other than that
from which he draws his rents. McCul. Pol.
Econ.; 33 Brit. Quar. Rev. 455. One who is absent from his usual place of residence or domicile.
ABSENCE. The state of being absent, removed,
or away from one's domicile, or usual place of
residence. Maley v. Pennsylvania R. Co., 258 Pa.
73, 101 A. 911. Not present at particular time, opposite of appearance at a specified time. Hamilton v. Bernstein, 133 Kan. 229, 299 P. 581.
Foreign corporations, not filing declarations of domicile
and names of agents. Palmer v. Avalon Oil Co., 10 La.
App. 512, 120 So. 781, 782. In Louisiana law, one who has
left his residence in a state leaving no one to represent
him. Bartlett v. Wheeler, 31 La.Ann. 540; or who resides
in another state but has property in Louisiana. Penn v.
Evans, 28 La.Ann. 576. It has been also defined as one
who has never been domiciled in the state and -who resides
abroad. Morris v. Bienvenu, 30 La.Ann. 878. One person
cannot be both,' at the same time, in the meaning of 1 he
law, a resident and an absentee. Spence v. Spence, 105
So. 23, 29, 158 La. 961.
Absence is of a fivefold kind: (1) A necessary absence,
as in banished or transported persons ; this is entirely necessary. (2) Necessary and voluntary, as upon the account
of the commonwealth, or in the service of the church. (3)
A probable absence, according to the civilians, as that of
students on the score of study. (4) Entirely voluntary, on
account of trade, merchandise, and the like. (5) Absence
cum dolo et culpd, as not appearing to a writ, subpoena,
citation, etc., or to delay or defeat creditors, or avoiding
arrest, either on civil or criminal process. Ayliffe. Nonappearance to action, not merely that the party was not
present in court vacating judgment. Strine v. Kaufman,
12 Neb. 423, 11 N.W. 867. In usual and natural signification, means physical absence. Inhabitants of Lanesborough v. Inhabitants of Ludlow, 250 Mass. 99, 145 N.E.
57, 58. Nonpresence, of official for service. Kurre v.
American Indemnity Co. of Galveston, Tex., 223 Mo.App.
406, 17 S.W.2d 685, 688.
ABSENTEES, or DES ABSENTEES. A parliament so called was held at Dublin, 10th May, 8
Hen. VIII. It is mentioned in letters patent 29
Hen. VIII.
ABSENTEM ACCIPERE DEBEMUS EUM QUI
NON EST EO LOCI IN QUO PETITUR. We
ought to consider him absent who is not in the
place where he is demanded (or sought). Dig.
50, 16, 199.
Presumption of Death Created
Intent to establish home at place last heard
from not required. American Nat. Ins. Co. v.
Garcia, Tex.Civ.App., 46 S.W.2d 1011, 1012. Away
from a place to which one is expected to return.
Woodmen of the World Life Ins. Soc. v. Cooper,
Tex.Civ.App., 164 S.W.2d 729, 731.
ABSENTIA EJUS QUI REIPUBLIC1E CAUSA
ABEST, NEQUE EI NEQUE ALII DAMNOSA
ESSE DEBET. The absence of him who is away
in behalf of the republic (on business of the state)
ought not to be prejudicial either to him or to another. Dig. 50, 17, 140.
In Scotch Law, want or default of appearance. A•decree
is said to be in absence where the defender (defendant)
does not appear. Ersk. Inst. bk. 4, tit. 3, § 6.
ABSENT. Being away from; at a distance from;
not in company with.
ABSOILE, ASSOIL, ASSOILE. To pardon; to
deliver from excommunication. Staunford, Pl.Cr.
72; Kelham; Cowell.
Paine v. Drew, 44 N.H. 306, where it was held that the
word when used as an adjective referred only to the condition or situation of the person or thing spoken of at
the time of speaking without reference to any prior condition or situation of the same person or thing, but when
used as a verb implies prior presence. It has also been
held to mean "not being in a particular place at the time
referred to," and not to import prior presence. The term
absent defendants does not embrace non-resident defendants but has reference to parties resident in the state, but
temporarily absent therefrom. Wheeler v. Wheeler, 35 Ill.
App. 123. See, however, Selmer v. James Dickinson Farm
Mortg. Co., D.C.I11., 299 F. 651, 658, holding that a foreign
corporation is "absent" from the state, and limitation does
not run in its favor. Commonwealth's attorney is "absent"
when disqualified or disabled from performing functions
of office. Northcutt v. Howard, 279 Ky. 219, 130 S.W.2d
70, 71, 72. A judge, disqualified to act. Dark Tobacco
Growers' Co-op. Ass'n v. Wilson, 206 Ky. 550, 267 S.W.
1092, 1093. A deceased stockholder employee is not "absent" from duty, as respects sharing of profits, etc. Nichols v. Olympia Veneer Co., 135 Wash. 8, 236 P. 794, 796.
Nonresident with office in state is not absent from state.
Corash v. Texas Co., 35 N.Y.S.2d 334, 340, 264 App.Div. 292.
As a verb, "absent" means to take or withdraw to such
a distance as to prevent intercourse; to depart from.
People v. Day, 321 Ill. 552, 152 N.E. 495, 497.
ABSOLUTA SENTENTIA EXPOSITORE NON
INDIGET. An absolute sentence or proposition
(one that is plain without any scruple, or absolute
without any saving) needs not an expositor. 2
Inst. 533.
ABSOLUTE. Complete; perfect; final; without
any condition or incumbrance; as an absolute
bond (simplex obligaiio) in distinction from a conditional bond. Unconditional; complete and perfect in itself ; without relation to or dependence
on other things or persons. Instruction as to an
"absolute" gift, Ketch v. Smith, 131 Okl. 263, 268
P. 715, 717. Irrevocable, final. Gift inter vivos
by husband, President and Directors of Manhattan Co. v. Janowitz, 14 N.Y.S.2d 375, 382, 172 Misc.
290. Within limitation or restriction, Comford v.
Cantrell, 177 Tenn. 553, 151 S.W.2d 1076, 1077.
22
ABSQUE
v. Hartford Accident & Indemnity Co., 178 Va.
501, 17 S.E.2d 413, 418.
An absolute estate is one that is free from all manner of
condition or incumbrance; an estate in fee simple. Johnson v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681; Fuller v. Missroon, 35 S.C. 31.4, 14 S.E. 714; Bradford v. Martin, 199
Iowa 250, 201 N.W. 574, 576; Middleton v. Dudding, Mo.
Sup., 183 S.W. 443, 444.- A rule is said to be absolute when
on the hearing it is confirmed and made final. A conveyance is said to be absolute, as distinguished from a mortgage or other conditional conveyance. Gogarn v. Connors.
153 N.W. 1068, 188 Mich. 161. Absolute property is where
a man hath solely and exclusively the right and also the
occupation of movable chattels ; distinguished from a qualified property, as that of a bailee. 2 Kent 347. An absolute
owner is one in whom elements of titles of possession,
right of possession, and right of property, are combined.
Harris v. Southeast Portland Lumber Co., 123 Or. 549, 262
P. 243, 244. Absolute ownership exists when interest is
so completely vested in insured that he cannot be deprived
of it without his own consent. Norwich Union Fire Ins.
Soc. v. Sawyer, 57 Ga.App. 739, 196 S.E. 223, 224. Absolute
rights are such as appertain and belong to particular persons merely as individuals or single persons, as distinguished from relative rights, which are incident to them as
members of society; 1 Sharsw.Bla.Com. 123; 1 Chit.Pr.
32. An absolute duty is one that is free from every restriction; unconditional; determined; not merely provisional;
irrevocable. Broken telephone wires. Home Telephone
Co. v. Weir, 101 N.E.1020, 1021, 53 Ind. App. 466; Railroad
employee, Lehigh Valley R. Co. v. Beltz, C.C.A.N.Y., 10
F.2d 74, 77; Pedestrians, Scibilia v. City of Philadelphia,
279 Pa. 549, 124 A. 273, 275, 32 A.L.R. 981. An "absolute
power of disposition," in the absence of statute, would be
one by which the holder of the power might dispose of the
property as fully and in the same manner as he might dispose of his individual estate acquired by his own efforts.
In re Briggs' Will, 167 N.Y.S. 632, 635, 101 Misc. 191. In the
law of insurance that is an absolute interest in property
which is so completely vested in the individual that there
could be no danger of his being deprived of it without his
own consent. Libby Lumber Co. v. Pacific States Fire Ins.
Co., 79 Mont. 166, 255 P. 340, 345, 60 A.L.R. 1. It may be
used in the sense of vested. Hough v. Ins. Co., 29 Conn.
20, 76 Am.Dec. 581. "Absolute control" in Motor Vehicle
Act does not require instant stoppage. Goff v. Clarksburg
Dairy Co., 86 W.Va. 237, 103 S.E. 58, 60. As to absolute
control of a mine, see People v. Boggess, 75 Cal.App. 499,
243 P. 478, 481; and of an estate, see Strickland v. Strickland, 271 Ill. 614, 111 N.E. 592, 594. Absolute veto is equivalent to "pocket veto". Okanogan, Methow, San Poelis
(or San Poil), Nespelem, Colville, and Lake Indian Tribes
or Bands of State of Washington v. United States, 49 S.Ct.
463, 279 U.S. 655, 73 L.Ed. 894, 64 A.L.R. 1434.
"Absolutely void" is that which the law or nature of
things forbids to be enforced at all, and that is "relatively
void" which the law condemns as a wrong to individuals
and refuses to enforce against them. Kyle v. Chaves, 42
N.Mex. 21, 74 P.2d 1030; Scudder v. Hart, 45 N.M. 76, 110
P.2d 536, 541.
A devise of property to have "absolutely" means without
condition, exception, restriction, qualification or limitation,
In re Darr's Estate, 206 N.W. 2, 3, 114 Neb. 116, and creates a fee-simple estate. In re Reynold's Estate, 94 Vt. 149,
109 A. 60, 63.
ABSOLUTION. In Canon Law, a juridical act
whereby the clergy declare that the sins of such
as are penitent are remitted. Among Protestants it is chiefly used for a sentence by which a
person who stands excommunicated is released or
freed from that punishment. Encyc. Brit.
In the Civil Law a sentence whereby a party
accused is declared innocent of the crime laid to
his charge.
In French Law, the dismissal of an accusation.
The term acquitment is employed when the accused is
declared not guilty, and absolution when he is recognized
as guilty but the act is not punishable by law or he is
exonerated by some defect of intention or will. Merlin,
Report.
ABSOLUTISM. In politics. A system of government in which public power is vested in some
person or persons, unchecked and uncontrolled
by any law, institution, constitutional device, or
coordinate body.
ABSOLVE. To set free, or release, as from obligation, debt, or responsibility. State ex rel. St.
Louis Car Co. v. Hughes, 348 Mo. 125, 152 S'.W.2d
193, 194.
ABSOLVITOR. In Scotch law. An acquittal; a
decree in favor of the defender in any action.
As to absolute "Conveyance," "Covenant," "Delivery,"
"Divorce," "Estate," "Gift," "Guaranty," "Interest,"
"Legacy," "Nuisance," "Nullity," "Obligation," "Property," "Rights," "Rule," "Sale," "Title," "Warrandice,"
see those titles.
ABSQUE. Without. Occurs in phrases taken
from the Latin; such as those immediately following.
ABSOLUTE LAW. The true and proper law of
nature, immutable in the abstract or in principle,
in theory, but not in application; for very often
the object, the reason, situation, and other circumstances, may vary its exercise and obligation.
1 Steph.Comm. 21 et seq.
ABSQUE ALIQUO INDE REDENDO. Lat. Without reserving any rent therefrom; without rendering anything therefrom. A term used of a
free grant by the crown. 2 Rolle, Abr. 502.
ABSQUE CONSIDERATIONE CURVE. In old
practice. Without the consideration of the court;
without judgment. Fleta, lib. 2, c. 47, § 13.
ABSOLUTELY. Completely; wholly; without
qualification; without reference or relation to, or
dependence upon, any other person, thing, or
event. Thus, absolutely void means utterly void;
Pearsoll v. Chapin, 44 Pa. 9. Absolutely necessary may be used to make the idea of necessity
more emphatic; State v. Tetrick, 34 W.Va. 137, 11
S.E. 1002. An "absolutely necessary repair," within terms of Wisconsin St. 1925, § 85.02, prohibiting parking of vehicles except for making absolutely necessary repairs, includes repair of a
punctured tire. Long v. Steffen, 194 Wis. 179,
215 N.W. 892, 893, 61 A.L.R. 1155. Independently
or unconditionally, wholly or positively. Collins
ABSQUE HOC. Without this. These are technical words of denial, used in pleading at common
law by way of special traverse, to introduce the
negative part of the plea, following the affirmative part or inducement. Martin v. Hammon, 8
Pa. 270. See, also, Traverse.
ABSQUE I1%IPETITIONE VASTI. Without impeachment of waste; without accountability for
waste; without liability to suit for waste. A
clause anciently often inserted in leases (as the
23
ABSQUE
equivalent English phrase sometimes is) signifying that the tenant or lessee shall not be liable to
suit (impetitio) or challenged, or called to account, for committing waste. Co. Litt. 220a;
Litt. § 352. See Waste.
facts relied on as evidence of title, together with all such
facts appearing of record as may impair the title. State
ex rel. Freeman v. Abstracters Board of Examiners, 99
Mont. 564, 45 P.2d 668, 670. Vangsness v. Bovill, 58 S.D.
228, 235 N.W. 601, 604. Memorandum or concise statement
in orderly form of the substance of documents or facts
appearing on public records which affect title to real
property. State ex rel. Doria v. Ferguson, 145 Ohio St. 12,
60 N.E.2d 476, 478.
ABSQUE TALI CAUSA. Lat. Without such
cause. A form of replication, now obsolete, in
an action ex delicto which works a general denial of the whole matter of the defendant's plea
of de injuria. Gould, Pl. c. 7, § 10; Steph. Pl. 191.
ABSTRACT QUESTION. One which does not
rest upon existing facts or rights. Morris Plan
Bank of Fort Worth v. Ogden, Tex.Civ.App., 144
S.W.2d 998, 1004.
ABSTENTION. In French law. Keeping an
heir from possession; also tacit renunciation of
a succession by an heir. Merl. Repert.
ABSTRACTION. Taking from with intent to injure or defraud, "wrongful abstraction" is "unauthorized and illegal taking or withdrawing of
funds, etc., and appropriation thereof to taker's
benefit." Pacific Coast Adjustment Bureau v.
Indemnity Ins. Co. of North America, 115 Cal.
App. 583, 2 P.2d 218, 219.
ABSTRACT, n. A less quantity containing the
virtue and force of a greater quantity; an
abridgment. Miller v. Kansas City Light & Power Co., C.C.A.Mo., 13 F.2d 723. A transcript is
generally defined as a copy, and is more comprehensive than an abstract. Harrison- v. Mfg. Co.,
10 S.C. 278, 283. Summary or epitome, or that
which comprises or concentrates in itself the essential qualities of a larger thing or of several
things. Robbins Inv. Co. v. Robbins, 49 Cal.App.
2d 446, 122 P.2d 91, 92.
For benefit of taker or of another with his consent.
Austin v. Nieman, Tex.Civ.App., 3 S.W.2d 128, 129. Offense for bank officer, popular sense of word. Commonwealth v. Dauphinee, 121 Pa.Super. 565, 183 A. 807, 813.
Under the National Bank Act, not necessarily the same as
embezzlement, larceny, or misapplication of funds. Ferguson v. State, 80 Tex.Cr.R. 383, 189 S.W. 271, 273. State
v. Hudson, 93 W.Va. 435, 117 S.E. 122, 126.
ABSTRACT, v. To take or withdraw from; as,
tO abstract the funds of a bank. Sprague v.
State, 188 Wis. 432, 206 N.W. 69, 70.
ABSURDITY. That which is both physically and
morally impossible; and that is to be regarded as
morally impossible which is contrary to reason,
so that it could not be imputed to a man in his
right senses. State v. Hayes, 81 Mo. 574, 585.
Anything which is so irrational, unnatural, or inconvenient that it cannot be supposed to have
been within the intention of men of ordinary intelligence and discretion. Black, Interp. Laws,
104; Graves v. Scales, 172 N.C. 915, 90 S.E. 439;
obviously and flatly opposed to the manifest
truth; inconsistent with the plain dictates of
common sense; logically contradictory; nonsensical; ridiculous. Wade v. Empire Dist. Electric
Co., 98 Kan. 366, 158 P. 28, 30.
ABSTRACT OF A FINE. In old conveyancing.
One of the parts of a fine, being an abstract of
the writ of covenant, and the concord, naming the
parties, the parcels of land, and the agreement.
2 Bl.Comm. 351. More commonly called the
"note" of the fine. See Fine; Concord.
ABSTRACT OF RECORD. A complete history in
short, abbreviated form of the case as found in
the record, complete enough to show that the
questions presented for review have been properly
reserved. State ex rel. Wallace State Bank v.
Trimble, 308 Mo. 278, 272 S.W. 72, 73. Synopsis
or summary of facts, rather than table of contents of transcript. Wing v. Brasher, 59 Mont.
10, 194 P. 1106, 1108. Abbreviated accurate and
authentic history of proceedings. Brown v. Reichmann, 237 Mo.App. 136, 164 S.W.2d 201, 207.
ABUNDANS CAUTELA NON NOCET. Abundant or extreme caution does no harm. 11 Co. 6;
Fleta, lib. 1, c. 28, § 1; 6 Wheat. 108. This principle is generally applied to the construction of
instruments in which superfluous words have been
inserted more clearly to express the intention.
ABSTRACT OF TITLE. A condensed history of
the title to land, consisting of a synopsis or summary of the material or operative portion of all
the conveyances, of whatever kind or nature,
which in any manner affect said land, or any
estate or interest therein, together with _a statement of all liens, charges, or liabilities to which
the same may be subject, and of which it is in any
way material for purchasers to be apprised.
War y . Abst. § 2. Stevenson v. Polk, 71 Iowa, 278,
32 N.W. 340.
ABUS DE CONFIANCE. Fraudulently misusing
or spending to anybody's prejudice goods, cash,
bills, documents, or contracts handed over for a
special object. The Washington, D.C.N.Y., 19 F.
Supp. 719, 722.
ABUSE, n. Everything which is contrary to good
order established by usage. Merl. Repent. Departure from use; immoderate or improper use.
Action that would be necessary in ordinary affairs to,
make one guilty of an "abuse" connotes conduct of a different grade than what is meant when a court is said to
have "abused its discretion." Beck v. Wings Field, Inc.
C.C.A.Pa., 122 F.2d 114, 116.
Record title, not extrinsic evidence thereof. Upton v.
Smith, 166 N.W. 268, 183 Iowa 588. Showing a marketable
title. Morgan v. W. A. Howard Realty Co., 68 Colo. 414,
191 P. 114, 115. An epitome of the record evidence of title.
De Huy v. Osborne, 96 Fla. 435, 118 So. 161, 162. Including
maps, plats, and other aids. Commissioners' Court of
Madison County v. Wallace, 118 Tex. 279, 15 S.W.2d 535,
536. An epitome of the conveyances, transfers, and other
Civil Law
The destruction of the substance of a thing in
using it. See Abuse, v.
24
ABUT
Process
There is said to be an abuse of process when
an adversary, through the malicious and unfounded use of some regular legal proceeding, obtains
some advantage over his opponent. Wharton.
Employment of process for doing an act clearly
outside authority conveyed by express terms of
writ. Shane v. Gulf Refining Co., 114 Pa.Super.
87, 173 A. 738, 740.
Corporate Franchise or Entity
The abuse or misuse of its franchises by a corporation signifies any positive act in violation of
the charter and in derogation of public right,
willfully done or caused to be done; the use of
rights or franchises as a pretext for wrongs and
injuries to the public. People v. Atlantic Ave. R.
Co., 125 N.Y. 513, 26 N.E. 622.
Discretion
"Abuse of discretion" is synonymous with a failure to exercise a sound, reasonable, and legal discretion. Disbarment, Adair v. Pennewill, 153 A.
859, 860, 4 W.W.Harr.(Del.) 390. It is a strict
legal term indicating that appellate court is
simply of opinion that there was commission of
an error of law in the circumstances. Refusing
motion to amend pleadings, Tunstall v. Lerner
Shops, 160 S.C. 557, 159 S.E. 386. Motions to consolidate actions, Bishop v. Bishop, 164 S.C. 493,
162 S.E. 756, 757. Vacating judgment, Detroit Fidelity & Surety Co. v. Foster, 171 S.C. 121, 169
S.E. 871, 881. And it does not imply intentional
wrong or bad faith, or misconduct, nor any reflection on the judge but means the clearly erroneous
conclusion and judgment—one is that clearly
against logic and effect of such facts as are presented in support of the application or against
the reasonable and probable deductions to be
drawn from the facts disclosed upon the hearing;
an improvident exercise of discretion; an error of
law. New trial, State v. Draper, 83 Utah, 115, 27
P.2d 39. Setting aside of decree pro confesso. Ex
parte Jones, 246 Ala. 433, 20 So.2d 859, 862.
The gist of an action for "abuse of process" is improper
use or perversion of process after it has been issued.
Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32
A.2d 413, 415. Holding of accused incommunicado before
complying with warrant requiring accused to be taken
before magistrate. People v. Crabb, 372 Ill. 347, 24 N.E.2d
46, 49. Warrant of arrest to coerce debtor. In re Williams, 233 Mo.App. 1174, 128 S.W.2d 1098, 1105. A malicious abuse of legal process occurs where the party employs it for some unlawful object, not the purpose which
it is intended by the law to effect; in other words, a
perversion of it. Lauzon v. Charroux, 18 R.I. 467, 28 A.
975. Vybiral v. Schildhauer, 265 N.W. 241, 244, 130 Neb.
433; Silverman v. Ufa Eastern Division Distribution, 236
N.Y.S. 18, 20, 135 Misc. 814. Thus, where the purpose of
a prosecution for issuance of a check without funds was
to collect a debt, the prosecution constituted an abuse of
criminal process. Hotel Supply Co. v. Reid, 16 Ala.App.
563, 80 So. 137, 138. Regular and legitimate use of process,
although with a bad intention, is not a malicious "abuse
of process." Priest v. Union Agency, 174 Tenn. 304, 125 S.
W.2d 142, 143. Action for "abuse of process" is distinguished from action for "malicious prosecution," in that
action for abuse of process rests upon improper use of regularly issued process, while "malicious prosecution" has
reference to wrong in issuance of process. Clikos v. Long,
231 Ala. 424, 165 So. 394, 396; McInnis v. Atlantic Inv. Corporation, 137 Or. 648, 4 P.2d 314, 315; Lobel v. Trade Bank
of New York, 229 N.Y.S. 778, 781, 132 Misc. 643.
ABUSE, v. To make excessive or improper use
of a thing, or to employ it in a manner contrary
to the natural or legal rules for its use; to make
an extravagant or excessive use, as to abuse one's
authority.
A discretion exercised to an end or purpose not justified
by and clearly against reason and evidence. Trimmer v.
State, 142 Okl. 278, 286 P. 783, 786; Seaba v. State, 290 P.
1098, 1101, 144 Okl. 295. Unreasonable departure from
considered precedents and settled judicial custom, constituting error of law. Beck v. Wings Field, Inc., C.C.A.
Pa., 122 F.2d 114, 116, 117. The term is commonly employed to justify an interference by a higher court with the
exercise of discretionary power by a lower court and is
said by some authorities to imply not merely error of
judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. The exercise of an honest
judgment, however erroneous it may appear to be, is not
an abuse of discretion. Stroup v. Raymond, 183 Pa. 279, 38
A. 626. Where a court does not exercise a discretion in the
sense of being discreet, circumspect, prudent, and exercising cautious judgment, it is an abuse of discretion. State
Board of Medical Examiners v. Spears, 79 Colo. 588, 247 P.
563, 565. Difference in judicial opinion is not synonymous
with "abuse of judicial discretion" as respects setting aside
verdict as against evidence. Belock v. State Mut. Fire Ins.
Co., 106 Vt. 435, 175 A. .19, 22.
In the civil law, the borrower of a chattel which, in its
nature, cannot be used without consuming it. such as wine
or grain, is said to abuse the thing borrowed if he uses it.
It has been held to include misuse; Erie & North-East R.
Co. v. Casey, 26 Pa. 287; to signify to injure, diminish in
value, or wear away by improper use; id.; to be synonymous with injure; Dawkins v. State, 58 Ala. 376, 29 Am.
Rep. 754.
ABUSIVE. Tending to deceive; practicing abuse;
prone to ill treat by coarse, insulting words. U.
S. v. Ault, D.C.Wash., 263 F. 800, 810. Using
ill treatment, injurious, improper, hurtful, offensive, reproachful. People on Complaint of Wilson v. Sinclair, 149 N.Y.S. 54, 56, 86 Misc. 426.
Distress
The using an animal or chattel distrained,
which makes the distrainer liable as for a conversion.
ABUT. To reach, to touch. In old law, the ends
were said to abut, the sides to adjoin. Cro. Jac.
184. And see Lawrence v. Killam, 11 Kan. 499,
511; Springfield v. Green, 120 Ill. 269, 11 N.E.
261. To take a new direction; as where a bounding line changes its course. Spelman, Gloss.
Abuttare. To touch at the end; be contiguous;
join at a border or boundary; terminate; to end
at; to border on; to reach or touch with an end.
Assessment of property, Hensler v. City of Anacortes, 140 Wash. 184, 248 P. 406, 407. The term
"abutting" implies a closer proximity than the
term "adjacent." Reversion of vacated park land,
Female Child
An injury to the genital organs in an attempt at
carnal knowledge, falling short of actual penetration. Lee v. State, 246 Ala. 69, 18 So.2d 706, 707.
But, according to other authorities, "abuse" is
here equivalent to ravishment or rape. Palin v.
State, 38 Neb. 862, 57 N.W. 743. Physical abuse.
Montgomery v. State, 28 Ala.App. 442, 186 So.
589, 592.
25
ABUT
City of Hutchinson v. Danley, 88 Kan. 437, 129
P. 163, 164. "Contiguous" synonymous, both conveying idea that lot borders on improvement.
Reynard v. City of Caldwell, 55 Idaho 342, 42
P.2d 292, 296.
Lord Bacon expounds their meaning in the statute
of uses: "The statute gives entry, not simpliciter,
but with an ac si." Bac. Read. Uses, Works, iv.
195.
ACADEME. Place of academic study. Sisters of
Mercy v. Town of Hooksett, 93 N.H. 301, 42 A.2d
222, 225.
No intervening land. Johnson v. Town of Watertown,
131 Conn. 84, 38 A.2d 1, 4. Property at end of street sought
to be vacated. Messinger v. City of Cincinnati, 36 Ohio
App. 337, 173 N.E. 260, 262. Widen street, leaving ftee
access to paved street, property within assessment statutes. Goodman v. City of Birmingham, 223 Ala. 199, 135
So. 336, 337. Though the usual meaning of the word is
that the things spoken of do actually adjoin, "bounding
and abutting" have nc, such inflexible meaning as to require lots assessed actually to touch the improvement;
Cohen v. Cleveland, 43 Ohio St. 190, 1 N.E. 589.
ACADEMY. An institution of learning. An association of experts in some particular branch of
art, literature, or science.
In its original meaning, an association formed for mutual
i mprovement, or for the advancement of science or art; in
later use, a species of educational institution, of a grade
between the common school and the colle g e. Academy of
Fine Arts v. Philadelphia County, 22 Pa. 496; School holding rank between college and common school, U. S. ex rel.
Jacovides v. Day, C.C.A.N.Y., 32 F.2d 542, 544; Sisters of
Mercy v. Town of Hooksett, 93 N.H. 301, 42 A.2d 222, 225.
See School.
ABUTMENTS. The walls of a bridge adjoining
the land which support the end of the roadway
and sustain the arches. The ends of a bridge,
or those parts of it which touch the land. Board
of Chosen Freeholders of Sussex County v. Strader, 18 N.J.Law, 108, 35 Am.Dec. 530. Support at
either extreme end. City of New York v. New
York Cent. R. Co., 48 N.Y.S.2d 189, 191, 183 Misc.
104.
ACAPTE, In French feudal law. A species of
relief; a seignorial right due on every change of
a tenant. A feudal right which formerly prevailed in Languedoc and Guyenne, being attached
to that species of heritable estates which were
granted on the contract of emphyteusis. Guyot,
Inst. Feod. c. 5, § 12.
ABUTTALS. Fr. The buttings or boundings of
lands, showing to what other lands, highways,
or places they belong or are abutting. Termes
de la Ley; Cowell; Toml. It has been used to
express the end boundary lines as distinguished
from those on the sides, as "buttais and sidings";
Cro.Jac. 183.
ACCEDAS AD CURIAM. (Lat. That you go to
court.) An original writ out of chancery directed
to the sheriff, for the purpose of removing a replevin suit from a Court Baron or a hundred court
to one of the superior courts of law. It directs
the sheriff to go to the lower court, and enroll
the proceedings and send up the record. See
Fitzh. Nat. Brev. 18; Dy. 169; 3 Bl. Comm. 34.
ABUTTER. One whose property abuts, is contiguous, or joins at a border or boundary, as where
no other land, road, or street intervenes.
ACCEDAS AD VICE COMITEM. L. Lat. (You
go to the sheriff.) A writ formerly directed to
the coroners of a county in England, commanding
them to go to the sheriff, where the latter had
suppressed and neglected to return a writ of
pone, and to deliver a writ to him requiring him
to return it. Reg. Orig. 83. See Pone.
ABUTTING OWNER. An owner of land which
abuts or adjoins. The term usually implies that
the relative parts actually adjoin, but is sometimes loosely used without implying more than
close proximity. See Abut.
Where five-foot strip between property assessed for paving and street was conveyed to city but not used for street
purposes, property assessed held not "abutting property,"
Davidson v. Salt Lake City, 81 Utah 203, 17 P.2d 234, 237.
Property owners held "abutting property owners," subject to sewer assessment, notwithstanding street was widened from 40 to 50 feet when incorporated in state highway, and city bought the extra 5 feet on either side. Carey-Reed Co. v. Sisco, 251 Ky. 22, 64 S.W.2d 430, 433. Railroad in street was not "abutting owner". Town of
Lenoir v. Carolina & N. W. Ry. Co., 194 N.C. 710, 140 S.E.
618, 619.
ACCELERATION. The shortening of the time
for the vesting in possession of an expectant interest. Wharton. Hastening of the enjoyment of
an estate which was otherwise postponed to a
later period. Blackwell v. Virginia Trust Co., 177
Va. 299, 14 S.E.2d 301, 304.
If the life estate fails for any reason, the remainder is
"accelerated". Elliott v. Brintlinger, 376 III. 147, 33 N.E.
2d 199, 201, 133 A.L.R. 1364. The word is also used in reference to contracts for payment of money in what is usually called an "acceleration clause" by which the time for
payment of the debt is hastened or advanced because of
breach of some condition such as failure to pay interest
when due, McCormick v. Daggett, 162 Ark. 16, 257 S.W.
358; insolvency of the maker, Wright v. Seaboard Steel &
Manganese Corporation, C.C.A.N.Y., 272 F. 807; or failure
to keep mortgaged premises insured, Porter v. Schroll, 93
Kan. 297, 144 P. 216.
AC ETIAM. (Lat. And also.) The introduction
of the statement of the real cause of action, used
in those cases where it was necessary to allege a
fictitious cause of action to give the court jurisdiction, and also the real cause in compliance with
the statutes. It is sometimes written acetiam. 2
Stra. 922. See Bill of Middlesex under Bill, definition 2.
ACCEPT. To receive with approval or satisfaction; to receive with intent to retain. See Morris
v. State, 102 Ark. 513, 145 S.W. 213, 214. Also, in
the capacity of drawee of a bill, to recognize the
draft, and engage to pay it when due. It is not
AC ETIAM BILLIE. And also to a bill. See Ac
Etiam.
AC SI. (Lat. As if.) Townsh. P1. 23, 27. These
words frequently occur in old English statutes.
26
ACCEPTANCE
equivalent to "acquiesce." Applett v. Empire Inv.
Co., 99 Or. 533, 194 P. 461, 462. Admit and agree
to; accede to or consent to; receive with approval;
adopt; agree to. Rocha v. Hulen, 6 Cal.App.2d
245, 44 P.2d 478, 482, 483. Street committee's and
city engineer's reports. City of Morehead v.
Blair, 243 Ky. 84, 47 S.W.2d 741, 742. Means
something more than to receive, meaning to
adopt, to agree to carry out provisions. Assignee
of lease, Pickier v. Mershon, 212 Iowa, 447, 236
N.W. 382, 385; Central State Bank v. Herrick,
214 Iowa 379, 240 N.W. 242, 246. Renewal health
and accident policy premiums, Prescott v. Mutual
Ben. Health and Accident Ass'n, Fla., 183 So. 311,
314, 119 A.L.R. 525.
ACCEPTANCE. The taking and receiving of
anything in good part, and as it were a tacit
agreement to a preceding act, which might have
been defeated or avoided if such acceptance had
not been made. Brooke, Abr. The act of a person to whom a thing is offered or tendered by another, whereby he receives the thing with the intention of retaining it, such intention being evidenced by a sufficient act. JEtna Inv. Corporation
v. Chandler Landscape & Floral Co., 227 Mo.App.
17, 50 S.W.2d 195, 197.
The exercise of power conferred by an offer by
performance of some act. In re Larney's Estate,
266 N.Y.S. 564, 148 Misc. 871.
Bills of Exchange
An engagement to pay the bill in money when
due. 4 East 72; Hunt v. Security State Bank, 91
Or. 362, 179 P. 248, 251.
The act by which the person on whom a bill of exchange
is drawn (called the "drawee") assents to the request of
the drawer to pay it, or, in other words, engages, or makes
himself liable, to pay it when due. Bell-Wayland Co. v.
Bank of Sugden, 95 Okl. 67, 218 P. 705. It may be by parol
or in writing, and either general or special, absolute or
conditional; and it may be impliedly, as well as expressly,
given. 3 Kent, Comm. 83, 85; Story, Bills, §§ 238, 251.
Telegram directing drawer to draw draft. Hoffer v. Eastland Nat. Bank, Tex.Civ.App., 169 S.W.2d 275, 278. Certification at request of the payee or holder. Welch v. Bank
of Manhattan Co., 35 N.Y.S.2d 894, 895, 264 App.Div. 906.
But the usual and regular mode of acceptance is by the
drawee's writing across the face of the bill the word "accepted," and subscribing his name; after which he is
termed the acceptor. Story, Bills, § 243.
Insurance
In a contract of insurance, the "acceptance" occurs when insurer agrees to accept application
and to issue policy. Acacia Mut. Life Ass'n v.
Berry, 54 Ariz. 208, 94 P.2d 770, 772. Delay or inaction on the part of an insurer cannot constitute
an "acceptance". French American Banking Corporation v. Fireman's Fund Ins. Co., D.C.N.Y., 43
F.Supp. 494, 498. More than mere mental resolution or determination on part of insurer to accept
application. Must be communicated to applicant.
Limbaugh v. Monarch Life Ins. Co., Springfield,
Mass., Mo.App., 84 S.W.2d 208, 212.
Marine Insurance
The acceptance of an abandonment by the underwriter is his assent, either express or to be
implied from the surrounding circumstances, to
the sufficiency and regularity of the abandonment.
Rap. & Law.
Sales
An acceptance implies, not only tha physical
fact of receiving the goods, but also the intention
of retaining them. Illinois Fuel Co. v. Mobile
& 0. R. Co., 319 Mo. 899, 8 S.W.2d 834, 841.
Retaining and using goods. Ohio Electric Co. v. Wisconsin-Minnesota Light & Power Co., 161 Wis. 632, 155 N.
W. 112, 113. Pressure tanks, Dunck Tank Works v. Sutherland, 236 Wis. 83, 294 N.W. 510, 513. Coal stokers used
for 15 months before request for removal, United States
v. Lux Laundry Co., C.C.A.Ind., 118 F.2d 848, 849. Where
goods are expressly rejected, receipt does not mean acceptance. State Board of Administration v. Roquemore, 218
Ala. 120, 117 So. 757, 760. The acceptance of goods sold
under a contract which would be void by the statute of
frauds without delivery and acceptance involves something
more than the act of the vendor in the delivery. It requires that the vendee should also act, and that his act
should be of such a nature as to indicate that he receives
and accepts the goods delivered as his property. He must
receive and retain the articles delivered, intending thereby to assume the title to them, to constitute the acceptance
mentioned in the statute. Rodgers v. Phillips, 40 N.Y.
524. See, also, Snow v. Warner, 10 Mete. (Mass.) 132, 43
Am. Dec. 417. There must be some unequivocal act, with
intent to take possession as owner. Vacuum Ash & Soot
Conveyor Co. v. Huyler's, 101 N.J.Law, 147, 127 A. 203, 204.
Title and possession must be in unrestricted control of buyer so as not to permit of recall or rescission. Mellen Produce Co. v. Fink, 225 Wis. 90, 273 N.W. 538. Mere words
are insvfficient to establish "delivery and receipt." Mellen
Produce Co. v. Fink, 225 Wis. 90, 273 N.W. 538, 542.
The following are the principal varieties of acceptances :
Absolute. An express and positive agreement to pay the
bill according to its tenor.
Conditional. An engagement to pay the bill on the happening of a condition. Todd v. Bank of Kentucky, 3 Bush,
( Ky.) 628. A "conditional acceptance" is in effect a statement that the offeree is willing to enter into a bargain
differing in some respects from that proposed in the original offer. The conditional acceptance is, therefore, itself a
counter offer. Hoskins v. Michener, 33 Idaho, 681, 197 P.
724. Morris F. Fox & Co. v. Lisman, 208 Wis. 1, 237 N.W.
267, 271. Worley v. Holding Corporation, 348 Ill. 420, 181
N.E. 307, 309.
Contracts
Compliance by offeree with terms and conditions of offer would constitute an "acceptance".
Davis & Clanton v. C. I. T. Corporation, 190 S.C.
151, 2 S.E.2d 382, 383.
Qualifications or conditions make a "counteroffer," not
an "acceptance." Cohn v. Penn Beverage Co., 313 Pa.
349, 169 A. 768, 769. Bullock v. McKeon, 104 Cal.App. 72,
285 P. 392, 395.
Express. An undertaking in direct and express terms to
pay the bill; an absolute acceptance.
Deed
Act by which vendee vests himself with title to
the property. Hardin v. Kazee, 238 Ky. 526, 38
S.W.2d 438.
Implied. An undertaking to pay the bill inferred from
acts of the drawee of a character which fairly warrant such
an inference. In case of a bilateral contract, "acceptance"
of an offer need not be expressed, but may be shown by
any words or acts indicating the offeree's assent to the
27
ACCEPTANCE
proposed bargain. Prescott v. Mutual Ben. Health and Accident Ass' n, 133 Fla. 510, 183 So. 311, 315, 119 A.L.R. 525.
Frederick Raff Co. v. Murphy, 110 Conn. 234, 147 A. 709,
711. Tenant for several months continued to occupy storeroom and paid rentals, C. R. Anthony Co. v. Stroud, 189
Oki. 104, 114 P.2d 177, 178. Landlord's reletting leased
premises after default in rent, In re Lear Shoe Co., Sup.,
22 N.Y.S.2d 778, 782. Taking possession, exercise of ownership and dominion and failure to complain to seller, Bell
v. Main, D.C.Pa., 49 F.Supp. 689, 692.
Partial. An acceptance varying from the tenor of the
bill. An acceptance to pay part of the amount for which
the bill is drawn, 1 Strange 214, or to pay at a different
time, 14 Jur. 806; Hatcher v. Stolworth, 25 Miss. 376;
or at a different place, 4 M. & S. 462, would be partial.
For some examples of what do and what do not constitute
conditional acceptances, see Heaverin v. Donnell, 7 Smedes
& M. (Miss.) 245, 45 Am.Dec. 302; Campbell v. Pettengill, 7
Greenl. (Me.) 126, 20 Am.Dec. 349; Ensign v. Clark Bros.
Cutlery Co., 195 Mo.App. 584, 193 S. W. 961, 962. Provisions respecting cutting of timber etc. on optioned land, did
not destroy the "acceptance". Bastian v. United States, C.
C.A.Ohio, 118 F.2d 777, 779. Would be in named place for
purpose of entering into option, Ackerman v. Carpenter,
113 Vt. 77, 29 A.2d 922, 925. Counter proposition to option.
Tholl Oil Co. v. Miller, 197 La. 976, 3 So.2d 97, 98. Conditional, qualified acceptance, Moore Bros. v. Kirkpatrick,
Tex.Civ.App., 172 S.W.2d 135, 137.
Qualified. One either conditional or partial, and which
introduces a variation in the sum, time, mode, or place of
payment.
Supra protest. An acceptance by a third person, after
protest of the bill for non-acceptance by the drawee, to
save the honor of the drawer or some particular indorser.
A. general acceptance is an absolute acceptance precisely
in conformity with the tenor of the bill itself, and not
qualified by any statement, condition, or change. Todd v.
Bank of Kentucky, 3 Bush (Ky.) 628. A special acceptance
is the qualified acceptance of a bill of exchange, as where
it is accepted as payable at a particular place "and not
elsewhere." Rowe v. Young, 2 Brod. & B. 180. See Trade
Acceptance.
ACCEPTANCE AU BESOIN. Fr, In French
law. Acceptance in case of need; an acceptance
by one on whom a bill is drawn au besoin, that is,
in case of refusal or failure of the drawee to accept. Story, Bills, §§ 65, 254, 255.
ACCEPTOR. The person who accepts a bill of
exchange, (generally the drawee,) or who engages
to be primarily responsible for its payment. Nissenbaum v. State, 38 Ga.App. 253, 143 S.E. 776, 777.
ACCEPTOR SUPRA PROTEST. One who accepts a bill which has been protested, for the honor of the drawer or any one of the indorsers.
ACCESS. Approach; or the means, power, or
opportunity of approaching. Sometimes importing the occurrence of sexual intercourse, Jackson
v. Jackson, 182 Okl. 74, 76 P.2d 1062, 1066; otherwise as importing opportunity of communication
for that purpose as between husband and wife.
In real property law, the term "access" denotes the
right vested in the owner of land which adjoins a road or
other highway to go and return from his own land to the
highway without obstruction. Cobb v. Commissioners of
Lincoln Park, 202 Ill. 427, 67 N.E. 5, G, 8. "Access" to
property does not necessarily carry with it possession.
People v. Brenneauer, 166 N.Y.S. 801, 806, 101 Misc. 156.
A deed, however, which conveys land and "also the right
of access to the adjoining park and use of spring on same,"
may be deemed to convey not merely the right to pass
through the park in order to reach the spring, but to convey a right of entry into the pail( as a park and by implication, the right to the use and enjoyment of the park.
Goetz v. Knoxville Power & Light Co., 154 Tenn. 545, 290
S. W. 409, 414.
The right of "access" as applied to a private wharf on
public lands merely means that there may not be built an
obstruction separating the lands from the navigable highway. City of Oakland v. Hogan, 41 Cal.App.2d 333, 106 P.
2d 987, 995.
The right of "access to public records" includes not
only a legal right of access but a reasonable opportunity to
avail oneself of the same. American Surety Co. of New
York v. Sandberg, D.C.Wash., 225 F. 150, 155.
Canon Law
The right to some benefice at some future time.
ACCESS (EASEMENT OF). An "easement of access" is the right which an abutting owner has of
ingress to and egress from his premises, in addition to the public easement in the street. State
Highway Board v. Baxter, 167 Ga. 124, 144 S.E.
796, 800; Lang v. Smith, 113 Pa.Super. 559, 173
A. 682, 683. "Access to an underground sewer"
means more than a right to open the surface to
make repairs, and implies the right of connection
by branches. Heyman v. Biggs, 150 N.Y.S. 246,
247, 164 App.Div. 430.
ACCEPTARE,
Civil Law
Lat. To accept; to assent; to assent to a promise made by another. Gro. de J. B. lib. 2, c. 11,
§ 14.
Pleading
To accept. Acceptavit, he accepted. 2 Strange,
817. Non acceptavit, he did not accept. 4 Man. &
G. 7.
ACCESSARY. See Accessory.
ACCEPTEUR PAR INTERVENTION. In French
law. Acceptor of a bill for honor.
ACCESSIO. In Roman law. An increase or addition; that which lies next to a thing, and is
supplementary and necessary to the principal
thing; that which arises or is produced from the
principal thing; an "accessory obligation" (q. v.).
Calvinus, Lex. Jurid.
One of the modes of acquiring property, being
the extension of ownership over that which grows
from, or is united to, an article which one already
possesses. Mather v. Chapman, 40 Conn. 382,
397, 16 Am.Rep. 46.
Accessio includes both accession and accretion
as used in the common law. See Adjunctio.
ACCEPTILATION. In the civil and Scotch law.
A release made by a creditor to his debtor of his
debt, without receiving any consideration. Ayl.
Pand. tit. 26, p. 570. It is a species of donation,
but not subject to the forms of the latter, and is
valid unless in fraud of creditors. Merl. Repert.
The verbal extinction of a verbal contract, with
a declaration that the debt has been paid when it
has not; or the acceptance of something merely
imaginary in satisfaction of a verbal contract.
Sanders' Just. Inst. (5th Ed.) 386.
28
ACCESSORY
ACCESSION. Coming into possession of a right
or office; increase; augmentation; addition.
The right to all which one's own property produces,
whether that property be movable or immovable; and the
right to that which is united to it by accession, either naturally or artificially. 2 Kent, 360; 2 Bl.Comm. 404;
Franklin Service Stations v. Sterling Motor Truck Co. of
N. E., 50 R. I. 336, 147 A. 754, 755.
Riparian owners' right to abandoned river beds and
rights of alluvion by accretion and reliction, Manry v.
Robison, 122 Tex. 213, 56 S.W.2d 438, 443, 444.
A principle derived from the civil law, by which the
owner of property becomes entitled to all which it produces, and to all that is added or united to it, either naturally or artificially, (that is, by the labor or skill of another.) even where such addition extends to a change of form
or materials; and by which, on the other hand, the possessor of property becomes entitled to it, as against the
original owner, where the addition made to it by his skill
and labor is of greater value than the property itself, or
where the change effected in its form is so great as to
render it impossible to restore it to its original shape.
Twin City Motor Co. v. Rouzer Motor Co., 197 N.C. 371, 148
S.E. 461, 463. In Blackwood Tire & Vulcanizing Co. v.
Auto Storage Co., 133 Tenn. 515, 182 S. W. 576, L.R.A.1916E,
254, Ann.Cas.1917C, 1168, this principle was applied in favor
of the conditional seller who, on nonpayment, retook the
automobile sold, together with tire casings which the buyer had fitted thereto. Valley Chevrolet Co. v. 0. S. Stapley
Co., 50 Ariz. 417, 72 P.2d 945.
halter of a horse, the frame of a picture, the
keys of a house.
Adjunct or accompaniment. Louis Werner Saw
Mill Co. v. White, 205 La. 242, 17 So.2d 264, 270.
A sale of land carried with it the standing timber as an
"accessory." Woollums v. Hewitt, 142 La. 597, 77 So. 295,
296.
Automobile Accessories
Articles primarily adapted for use in motor vehicles, under revenue acts. Universal Battery Co.
v. U. S., Ct.C1., 50 S.Ct. 422, 423, 281 U.S. 580, 74
L.Ed. 1051.
Criminal Law
Contributing to or aiding in the commission of
a crime. One who, without being present at the
commission of a felonious offense, becomes guilty
of such offense, not as a chief actor, but as a participator, as by command, advice, instigation, or
concealment; either before or after the fact or
commission; a particeps criminis. 4 Bl.Comm.
35; Cowell.
One who is not the chief actor in the offense, nor present at its perfornlance. but in some way concerned therein,
either before or after the act committed. State v. Thomas,
136 A. 475, 477, 105 Conn. 757. One who aids and abets
another. People v. Smith, 260 N.W. 911, 271 Mich. 553.
Commands or counsels another. United States v. Peoni,
C.C.A.N.Y., 100 F.2d 401, 402.
An "accessory" to a crime is always an "accomplice."
People v. Ah Gee, 37 Cal.App. 1, 174 P. 371, 373. In certain
crimes, there can be no accessories; all who are concerned
are principals. These are (according to many authorities)
treason, and all offenses below the degree of felony: 4
Bla.Comm. 35; Com. v. McAtee, 8 Dana (Ky.) 28; Williams v. State, 12 Smedes & M. (Miss.) 58.
International Law
The absolute or conditional acceptance by one
or several states of a treaty already concluded between other sovereignties. Merl. Rêpert. It may
be of two kinds: First, the formal entrance of a
third state into a treaty so that such state becomes a party to it; and this can only be with
the consent of the original parties. Second, a
state may accede to a treaty between other states
solely for the purpose of guarantee, in which case,
though a party, it is affected by the treaty only as
a guarantor. 1 Oppenheim, Int.L. sec. 532. See
Adhesion.
Also, the commencement or inauguration of a
sovereign's reign.
Accessory Before the Fact
One who, being absent at the time a crime is
committed, yet assists, procures, counsels, incites,
induces, encourages, engages, or commands another to commit it. 4 Steph, Comm. 90, note n.
People v. Owen, 241 Mich. 111, 216 N.W. 434.
United States v. Pritchard, D.C.S.C., 55 F.Supp.
201, .203; rape, Clayton v. State, 244 Ala. 10, 13
So.2d 420, 422.
Murder, Wells v. State, 94 Ga. 70, 20 S.E.2d 580,
582. Distilling, State v. Lackmann, Mo., 12 S.W.
2d 424, 425.
ACCESSION, DEED OF. In Scotch law. A deed
executed by the creditors of a bankrupt or insolvent debtor, by which they approve of a trust given by their debtor for the general behoof, and
bind themselves to concur in the plans proposed
for extricating his affairs. Bell, Diet.
Accessory During the Fact
One who stands by without interfering or giving such help as may be in his power to prevent
the commission of a criminal offense. Farrell v.
People, 8 Colo.App. 524, 46 P. 841.
ACCESSORIUM NON DUCIT, SED SEQUITUR
SUUM PRINCIPALE, Co. Litt. 152a, 389a. That
which is the accessory or incident does not lead,
but follows, its principal.
Accessory After the Fact
One who, having full knowledge that a crime
has been committed, conceals it from the magistrate, and harbors, assists, or protects the person
charged with, or convicted of, the crime. Vernon's Ann.C.C.P. art. 53.
All persons who, after the commission of any
felony, conceal or aid the offender, with knowledge that he has committed a felony, and with intent that he may avoid or escape from arrest,
trial, conviction, or punishment, are accessories.
ACCESSORIUS SEQUITUR NATURAM SUI
PRINCIPALIS. An accessary follows the nature
of his principal. 3 Inst. 139. One who is accessary to a crime cannot be guilty of a higher degree of crime than his principal.
ACCESSORY. Anything which is joined to another thing as an ornament, or to render it more
perfect, or which accompanies it, or is connected
with it, as an incident, or as subordinate to it, or
which belongs to or with it; for example, the
29
ACCESSORY
Comp.Laws N.D.1913, § 9219; Rev.Code S.D.1919,
§ 3595.
An accessory after the fact is a person who, knowing a
felony to have been committed by another, receives, relieves, comforts or assists the felon, in order to enable him
to escape from punishment, or the like. Buck v. Commonwealth, 116 Va. 1031, 83 S.E. 390, 393. Knowledge, or denial of knowledge, of perpetration of crime, or silence
does not make one an "accessory after the fact." Commonwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71, 75. Cantu
v. State, 135 S.W.2d 705, 710, 141 Tex.Cr.R. 99. But affirmative action by false testimony or otherwise usable by
accused to escape punishment constitutes one "accessory"
as to his testimony. Fisher v. State, 34 S.W.2d 293, 294,
117 Tex.Cr.R. 552; false statements to sheriff relative to
defendant's connection with homicide in order to evade
arrest, Littles v. State, 111 Tex.Cr.R. 500, 14 S.W.2d 853,
854.
Aiders and Abettors Distinguished
The concept of an "accessory before the fact"
presupposes a prearrangement to do the criminal
act, and to constitute one an "alder and abettor"
he must be on the ground and by his presence
aid, encourage or incite the principal. Morel v.
United States, C.C.A.Ohio, 127 F.2d 827, 830, 831.
Principal Distinguished
"Principal in the second degree," as distinguished from "accessory before the fact," is one
who aids in commission of felony by being either
actually or constructively present, aiding, and
abetting commission of felony, when perpetrated.
Neumann v. State, 116 Fla. 98, 156 So. 237, 239.
ACCESSORY ACTION. In Scotch practice. An
action which is subservient or auxiliary to another. Of this kind are actions of "proving the tenor," by which lost deeds are restored; and actions
of "transumpts," by which copies of principal
deeds are certified. Bell, Dict.
ACCESSORY CONTRACT. In the civil law. A
contract which is incident or auxiliary to another
or principal contract; such as the engagement of
a surety. Poth. Obl. pt. 1, c. 1, § 1, art. 2.
A principal contract is one entered into by both parties
on their own accounts, or in the several qualities they assume. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or
by others; such as suretyship, mortgage, and pledge.
Blaisdell v. Coe, 83 N.H. 167, 139 A. 758, 65 A.L.R. 626.
,
an accessory directly commands, advises, or procures the adultery. 20 & 21 Vict. c. 85, §§ 29, 31.
ACCIDENT. The word "accident" is derived
from the Latin verb "accidere" signifying "fall
upon, befall, happen, chance." In an etymological
sense anything that happens may be said to be
an accident and in this sense, the word has been
defined as befalling; a change; a happening; an
incident; an occurrence or event. In its most
commonly accepted meaning, or in its ordinary or
popular sense, the word may be defined as meaning a fortuitous circumstance, event, or happening, an event happening without any human
agency, or if happening wholly or partly through
human agency, an event which under the circumstances is unusual and unexpected by the person
to whom it happens; an unusual, fortuitous, unexpected, unforeseen or unlooked for event, happening or occurrence; an unusual or unexpected
result attending the operation or performance of
a usual or necessary act or event; chance or
contingency; fortune; mishap; some sudden and
unexpected event taking place without expectation,
upon the instant, rather than something which
continues, progresses or develops; something
happening by chance; something unforeseen, unexpected, unusual, extraordinary or phenominal,
taking place not according to the usual course of
things or events, out of the range of ordinary
calculations; that which exists or occurs abnormally, or an uncommon occurrence; the word
may be employed as denoting a calamity, casualty, catastrophe, disaster, an undesirable or unfortunate happening; any unexpected personal injury resulting from any unlooked for mishap or
occurrence; any unpleasant or unfortunate occurrence, that causes injury, loss, suffering or
death; some untoward occurrence aside from the
usual course of events. Adams v. Metropolitan
Life Ins. Co., 136 Pa.Super. 454, 7 A.2d 544, 547;
without known or assignable cause, Ramsay v.
Sullivan Mining Co., 51 Idaho 366, 6 P.2d 856,
858.
Scotch Law
Obligations to antecedent or primary obligations, such as obligations to pay interest, etc.
Ersk. Inst. lib. 3, tit. 3, § 60.
See, further, Obligation.
In its proper use the term excludes negligence; Dallas
Ry. & Terminal Co. v. Allen, Tex.Civ.App., 43 S.W.2d 165,
170; that is, an accident is an event which occurs without
the fault, carelessness, or want of proper circumspection
of the person affected, or which could not have been avoided by the use of that kind and degree of care necessary to
the exigency and in the circumstances in which he was
placed. Brown v. Kendall, 6 Cush. (Mass.) 292; essential
requirement being that happening be one to which human
fault does not contribute, Hogan v. Kansas City Public
Service Co., 322 Mo. 1103, 19 S.W.2d 707, 713, 65 A.L.R. 129;
happening of an event without any human agency, Terry
v. Woodmen Accident Co., 225 Mo.App. 1223, 34 S.W.2d
163, 164. It has been said, moreover, that the word "accident" does not have a settled legal signification; Klopfenstein v. Union Traction Co., 112 Kan. 770, 212 P. 1097,
1098; and that in its ordinary meaning it does not negative the idea of negligence on the part of the person whose
physical act caused the occurrence. Campbell v. Jones, 73
Wash. 688, 132 P. 635, 636. Not merely inevitable casualty or the act of providence, or what is technically called
vis major. or irresistible force. Gardner v. State, 1 N.Y.
S.2d 994, 997, 166 Misc. 113.
See Act of God.
ACCESSORY TO ADULTERY. Implies more
than connivance, which is merely knowledge with
consent. A conniver abstains from interference;
Automobiles
The word "accident" as used in automobile liability policy requiring notice of any "accident"
ACCESSORY OBLIGATION.
Civil Law
An obligation which is incident to another or
principal obligation; the obligation of a surety.
Poth. Obl. pt. 2, c. 1, § 6.
30
ACCION
to be given to the insurer as a condition precedent
to liability means an untoward and unforeseen
occurrence in the operation of the automobile
which results in injury to the person or property
of another. Ohio Casualty Ins. Co. v. Marr, C.C.
A.Okl., 98 F.2d 973, 975.
Connotes event which occurs without one's foresight or
expectation, and does not exclude negligence. American
Indemnity Co. v. Jamison, Tex.Civ.App., 62 S.W.2d 197;
without intention or design, Rothman v. Metropolitan
Casualty Ins. Co., 134 Ohio St. 241, 16 N.E.2d 417, 421, 117
A. L. R. 1169.
The word "accident", requiring operator of vehicle to
stop immediately in case of accident, contemplates any
situation occurring on the highway wherein he so operates
his automobile as to cause injury to the property or person
of another using the same highway. State v. Masters, 10G
W.Va. 46, 144 S.E. 718, 719.
Equity
Such an unforeseen event, misfortune, loss, act,
or omission as is not the result of any negligence
or misconduct in the party. Engler v. Knoblaugh,
131 Mo.App. 481, 110 S.W. 16.
Unforeseen and undesigned event, productive of
disadvantage. Wharton. Surprise is used interchangeably. State ex rel. Hartley v. Innes, 137
Mo.App. 420, 118 S.W. 1168.
Occurrence, not the result of negligence or misconduct of
the party seeking relief in relation to a contract, as was
not anticipated by the parties when the same was entered
into, and which gives an undue advantage to one of them
over another in a court of law. White & Hamilton Lumber Co. v. Foster, 157 Ga. 493, 122 S.E. 29, 30.
Insurance Contracts
An accident within accident insurance policies is
an event happening without any human agency,
or, if happening through such agency, an event
which, under circumstances, is unusual and not
expected by the person to whom it happens. Sizemore v. National Casualty Co., 108 W.Va. 550, 151
S.E. 841.
Practice
That which ordinary prudence could not have
guarded against. Cupples v. Zupan, 35 Idaho
458, 207 P. 328, 329. An event happening unexpectedly and without fault; an undesigned and
unforeseen occurrence of an afflictive or unfortunate character; a casualty or mishap. Allen
v. State, 13 Okl.Cr. 533, 165 P. 748; Baird v. Kensal Light & Power Co., 246 N.W. 279, 282, 63 N.D.
88; drunkenness of juror during recess required
discharge of jury. Fetty v. State, 119 Neb. 619,
230 N.W. 440, 442.
Workmen's Compensation
Term "accident," within Workmen's Compensation Act, has been defined as a befalling; an event
that takes place without one's foresight or expectation; an undesigned, sudden, and unexpected
event; chance; contingency; often, an undesigned and unforeseen occurrence of an afflictive
or unfortunate character; casualty; mishap; as,
to die by an accident. Its synonyms are chance,
contingency, mishap, mischance, misfortune, disaster, calamity, catastrophe. Term "accidental"
has been defined as happening by chance, or unexpectedly; taking place not according to the
usual course of things; casual; fortuitous; as,
an accidental visit. Its synonyms are undesigned,
unintended, chance, unforeseen, unexpected, unpremeditated; accessory, collateral, secondary,.
subordinate; extrinsic, extraneous, additional,
adscititious, dependent, conditional. Indian Territory Illuminating Oil Co. v. Williams, 157 Okl.
80, 10 P.2d 1093, 1094.
With or without negligence. Great Atlantic &
Pacific Tea Co. v. Sexton, 242 Ky. 266, 46 S.W.2d
87, 88.
Not technical legal term. Arquin v. Industrial
Commission, 349 Ill. 220, 181 N.E. 613, 614,
ACCIDENTAL. Happening by chance, or unexpectedly; taking place not according to usual
course of things; casual; fortuitous. Morris v.
New York Life Ins. Co., C.C.A.Md., 49 F.2d 62, 63;
Murphy v. Travelers Ins. Co., Neb., 2 N.W.2d 576,
578, 579.
Sudden and instant happening, referable to definite and
fixed period of time. Jackson v. Employers' Liability Assur. Corporation, 248 N.Y.S. 207, 210, 139 Misc. 686.
May be inflicted intentionally and maliciously by one
not the agent of the insured, if unintentional on the part
of the insured. Goodwin v. Continental Casualty Co., 175
Okl. 469, 53 P.2d 241, 243.
A more comprehensive term than "negligence," and in
its common signification the word means an unexpected
happening without intention or design. Sontag v. Galer,
279 Mass. 309, 181 N.E. 182, 183.
Accidental' injury or death is an unintended and undesigned result arising from acts done, while injury or death
by "accidental means" is a result arising from acts unintentionally done. Adams v. Metropolitan Life Ins. Co., 136
Pa.Super. 454, 7 A.2d 544, 547.
ACCIDENTAL KILLING. One resulting from an
act which is lawful and lawfully done under a
reasonable belief that no harm is possible;—distinguished from "involuntary manslaughter,"
which is the result of an unlawful act, or of a lawful act done in an unlawful way. Rowe v. Commonwealth, 206 Ky. 803, 268 S.W. 571, 573.
ACCIDENTAL VEIN. See Vein.
Maritime Law and Marine Insurance
"Accidents of navigation" or "accidents of the
sea" are such as are peculiar to the sea or to usual
navigation or the action of the elements, which
do not happen by the intervention of man, and
are not to be' avoided by the exercise of proper
prudence, foresight, and skill. The G. R. Booth,
19 S.Ct. 9, 171 U.S. 450, 43 L.Ed. 234. See also
Perils of the Sea.
ACCIDERE. Lat. To fall; fall in; come to
hand; happen. Judgment is sometimes given
against an executor or administrator to be satisfied out of assets quando acciderint; e., when
they shall come to hand. See Quando Acciderint.
ACCION. In Spanish law. A right of action;
also the method of judicial procedure for the
31
ACCIPERE
recovery of property or a debt. Escriche, Die.
Leg. 49. Wilder v. Lambert, 91 Tex. 510, 44 S.W.
281, 284.
ACCOMMODATION INDORSEMENT. See Indorsement.
ACCOMMODATION INDORSER. A party who
places his name to a note without consideration
for purpose of benefiting or accommodating some
other party. Stubbins Hotel Co. v. Bassbarth,
43 N.D. 191, 174 N.W. 217, 218; McDaniel v. Altoona State Bank, 126 Kan. 719, 271 P. 394.
ACCIPERE QUID UT JUSTITIAM FACIAS, NON
EST TAM ACCIPERE QUAM EXTORQUERE.
To accept anything as a reward for doing justice
is rather extorting than accepting. Lofft, 72.
ACCIPITARE. To pay relief to lords of manors.
Capitali domino accipitare, e., to pay a relief,
homage, or obedience to the chief lord on becoming his vassal. Fleta, lib. 2, c. 50.
ACCOMMODATION LANDS. Land bought by a
builder or speculator, who erects houses thereon,
and then leases portions thereof upon an improved ground-rent.
ACCOLA.
Civil Law
One who inhabits or occupies land near a place,
as one who dwells by a river, or on the bank of
a river. Dig. 43, 13, 3, 6.
Feudal Law
A husbandman; an agricultural tenant; a tenant at a manor. Spelman. A name given to a
class of villeins in Italy. Barr, St. 302.
ACCOMMODATION MAKER. One who puts his
name to a note without any consideration with the
intention of lending his credit to the accommodated party. In re Chamberlain's Estate, Cal.
App., 109 P.2d 449, 454.
In this connection "without consideration" means "without consideration to the accommodating party directly."
Warren Nat. Bank, Warren, Pa., v. Suerken, 45 Cal.App.
736, 188 P. 613, 614. One who receives no part of the proceeds, which are used exclusively for another maker's benefit, as in discharging his own personal obligation. Backer
v. Grummett, 39 Cal.App. 101, 178 P. 312, 313. Must not receive any benefit or consideration directly or indirectly,
and transaction must be one primarily for the benefit of
the payee. First Trust Co. of Lincoln v. Anderson, 135
Neb. 397, 281 N.W. 796, 798; Void of present or anticipated
personal profit, gain, or advantage. Robertson v. City Nat.
Bank of Bowie, 120 Tex. 226, 36 S.W.2d 481, 483.
Incidental benefit to party insufficient. Morrison v.
Painter, Mo.App., 170 S.W.2d 965, 970.
ACCOMENDA. In maritime law. A contract between the owner of goods and the master of a
ship, by which the former intrusts the property to
the latter to be sold by him on their joint account.
In such case, two contracts take place : First, the contract called mandatum, by which the owner of the property gives the master power to dispose of it; and the contract of partnership, in virtue of which the profits are to be
divided between them. One party runs the risk of losing
his capital; the other, his labor. If the sale produces no
more than first cost, the owner takes all the proceeds. It
is only the profits which are to be divided. Emerig.Mar.
Loans, § 5.
ACCOMMODATION NOTE. One to which accommodating party has put his name, without
consideration, to accommodate some other party,
who is to issue it and is expected to pay it.
Brown Carriage Co. v. Dowd, 155 N.C. 307, 71
S.E. "721, 724; Farmers Loan & Trust Co. v.
Brown, 182 Iowa, 1044, 165 N.W. 70, 73.
ACCOMMODATED PARTY. One to whom the
credit of the accommodation party is loaned, and
is not necessarily the payee, since the inquiry always is as to whom did the maker of the paper
loan his credit as a matter of fact. Wilhoit v.
Seavall, 121 Kan. 239, 246 P. 1013, 1015, 48 A.L.R.
1273; not third person who may receive advantage, State v. Banta, 148 Okl. 239, 299 P. 479, 483.
First Nat. Bank v. Boxley, 129 Okl. 159, 264 P.
184, 186, 64 A.L.R. 588.
ACCOMMODATION PAPER. An accommodation bill or note is one to which the accommodating party, be he acceptor, drawer, or indorser, has
put his name, without consideration, for the purpose of benefiting or accommodating some other
party who desires to raise money on it, and is
to provide for the bill when due. Miller v. Larned, 103 Iii. 562; Crothers v. National Bank of
Chesapeake City, 158 Md. 587, 149 A. 270, 272;
Hickox v. Hickox, Tex.Civ.App., 151 S.W.2d 913,
917.
ACCOMMODATION. An arrangement or engagement made as a favor to another, not upon a consideration received; something done to oblige, usually spoken of a loan of money or commercial
paper; also a friendly agreement or composition
of differences. Abbott; Sales v. Martin, 173 Ky.
616, 191 S.W. 480, 482. The word implies no consideration. William D. Seymour & Co. v. Castell,
160 La. 371, 107 So. 143, 145.
Must be executed for the purpose of loaning credit, and
incidental benefit to party is insufficient. Morrison v.
Painter, Mo.App., 17C .3.W.2d 965, 970.
ACCOMMODATION PARTY. One who has
signed an instrument as maker, drawer, acceptor,
or indorser without receiving value therefor, and
for purpose of lending his name to some other
person as means of securing credit. Bachman v.
Junkin, 129 Neb. 165, 260 N.W. 813.
"While a party's intent may be to aid a maker of note
by lending his credit, if he seeks to accomplish thereby
legitimate objects of his own, and not simply to aid maker,
the act is not for 'accommodation.' " Bazer v. Grimmett,
16 La.App. 613, 135 So. 54, 56.
The term does not include one who, for the accommodation of the maker, guaranteed the payment of a note.
Noble v. Beeman-Spaulding-Woodward Co., 65 Or. 93, 131
P. 1006, 1010.
Indorser, Myrtilles, Inc., v. Johnson, 124 Conn. 177, 199
A. 115, 117; president and directors of bank, Davis v. Holt,
Federal Deposit Ins. Corporation, Intervenor, Mo.App., 154
ACCOMMODATION ACCEPTANCE. The acceptance of accommodation paper.
ACCOMMODATION BILL OR NOTE. See Accommodation Paper.
32
ACCORD
Thief and receiver of stolen property ordinarily not
"accomplices". People v. Lima, 25 Cal.2d 573, 154 P.2d
698, 700, 701.
Giver of bribe is an "accomplice". Turner v. State, 58
Ga.Lpp. 775, 199 S.E. 837, 839, Contra, State v. Emory, 55
Idaho 649, 46 P.2d 67, 70.
As specifically applied to witnesses for the state and the
necessity for corroborating them, "accomplice" includes all
persons connected with the offense by an unlawful act or
omission either before, at the time of, or after the commission of the offense, whether such witness was present
or participated in the crime or not. Chandler v. State, 89
Tex.Cr.R. 309, 230 S.W. 1002, 1003.
Mere presence is insufficient. Snowden v. State, 27 Ala.
App. 14, 165 So. 410.
Suborned witness is an "accomplice". People v. Nicosia,
4 N.Y.S.2d 35, 37, 166 Misc. 597. Contra. State v. De
Vaughn, 2 Cal.App.2d 572, 39 P.2d 223, 224.
Receiver of bribe not "accomplice" of giver. People v.
Martin, 114 Cal.App. 392, 300 P. 130, 132.
S. W.2d 595. 597; apparent comaker. McLendon v. Lane,
51 Ga.App. 409, 180 S.E. 746; to make note look better for
payee bank, Pirtle v. Johnson, 145 Kan. 8, 64 P.2d 2, 4.
ACCOMMODATION ROAD. A road opened for
benefit of certain individuals to go from and to
their homes, for service of their lands, and for
use of some estates exclusively. Civ.Code La.
art. 706.
ACCOMMODATION TRAIN. One designed to
accommodate local travel by stopping at most
stations. Gray v. Chicago, M. & St. P. R. Co., 189
Ill. 400, 59 N.E. 950, 951. In another aspect it is
a train designed to carry passengers as well as
freight. White v. Ill. Cent. R. Co., 99 Miss. 651,
55 So. 593, 595.
ACCOMMODATION WORKS. Works which a
railway company is required to make and maintain for the accommodation of the owners or occupiers of land adjoining the railway; e. g., gates,
bridges, culverts, fences, etc. 8 Vict. c. 20, § 68.
The term includes all the participes criminis, Darden v.
State, 12 Ala.App. 165, 68 So. 550, 551, whether they are
considered, in strict legal propriety, as principals in the
first or second degree, or merely as accessories before or
after the fact. In re Rowe, 23 C.C.A. 103, 77 F. 161; Luck
v. State, 125 Tex.Cr.R. 152, 67 S.W.2d 302. But in Kentucky it has been held that "accomplice" does not include
an accessory after the fact. See, however, Commonwealth
v. Barton, 153 Ky. 465, 156 S.W. 113, 114. And the same
rule has been announced elsewhere. State v. Lyons, 144
Minn. 348, 175 N.W. 689, 691. A feigned accomplice has
been defined as one who co-operates with view of aiding
justice to detect a crime. State v. Verganadis, 50 Nev. 1,
248 P. 900, 903; Decoy not "accomplice". U. S. v. Becker,
C.C.A.N.Y., 62 F.2d 1007, 1009.
Liquor control board inspector, Magee v. State, 135 Tex.
Cr.R. 381, 120 S.W.2d 248, 249.
ACCOMMODATUM. The same as commodatum,
q.
ACCOMPANY. To go along with. Webster's
Diet. To go with or attend as a companion or associate, to occur in association with. United
States v. Lee, C.C.A.Wis., 131. F.2d 464, 466.
The word has been defined judicially in cases involving
varied facts; thus, a boy driver was held not accompanying the team when he was runnning to stop it. Willis v.
Semmes, 111 Miss. 589, 71 So. 865, 866. A motion based
on answer already deposited with the clerk of court is
accompanied with copy of answer. Los Angeles County v.
Lewis, 179 Cal. 398, 177 P. 154, 155. An automobile driver
under sixteen is not accompanied by an adult person unless
the latter exercises supervision over the driver. Rush v.
McDonnell, 214 Ala. 47, 106 So. 175, 179. An unlicensed
driver is not accompanied by a licensed driver unless the
latter is near enough to render advice and assistance.
Hughes v. New Haven Taxicab Co., 87 Conn. 416, 87 A.
721.
ACCORD, n. A satisfaction agreed upon between
the party injuring and the party injured which,
when performed, is a bar to all actions upon this
account. Kromer v. Heim, 75 N.Y. 576, 31 Am.
Rep. 491; Buob v. Feenaughty Machinery Co.,
191 Wash. 477, 71 P.2d 559, 564. An agreement to
accept, in extinction of an obligation, something
different from or less than that to which the person agreeing to accept is entitled. Whepley Oil
Co. v. Associated Oil Co., 6 Cal.App.2d 94, 44 P.2d
670, 677.
ACCOMPLICE. In criminal law. A person who
knowingly, voluntarily, and with common intent
with the principal offender unites in the commission of a crime. State v. Keithley, 83 Mont. 177,
271 P. 449, 451, People v. Frahm, 107 Cal.App. 253,
290 P. 678, 682, State v. Coroles, 74 Utah, 94, 277
P. 203, 204. One who is in some way concerned or
associated in commission of crime; partaker of
guilt; one who aids or assists, or is an accessory.
McLendon v. U. S., C.C.A.Mo., 19 F.2d 465, 466.
Equally concerned in the commission of crime.
Fryman v. Commonwealth, 289 Ky. 540, 159 S.W.
2d 426, 429.
Substitution of an agreement between the party injuring and the party injured, in view of the original obligation. Barbarich v. Chicago, M., St. P. & P. Ry. Co., 92
Mont. 1, 9 P.2d 797, 799.
It may arise both where the demand itself is unliquidated or in dispute, and where the amount and nature of
the demand is undisputed, and it is agreed to give and take
less than the demand. J. F. Morgan Paving Co. v. Carroll,
211 Ala. 121, 99 So. 640, 641.
"Payment," as distinguished from accord, means full
satisfaction. State v. Tyler County State Bank, Tex.Com.
App., 277 S. W. 625, 627, 42 A.L.R. 1347.
See Accord and Satisfaction; Compromise and
Settlement.
An "accomplice" is one who is guilty of complicity in
crime charged, either by being present and aiding or abetting in it, or having advised and encouraged it, though
absent from place when it was committed, though mere
presence, acquiescence, or silence, in the absence of a duty
to act, is not enough, no matter how reprehensible it may
be, to constitute one an accomplice. State v. Arnold, 84
Mont. 348. 275 P. 757, 760; presence unnecessary. King
v. State. 135 Tex.Cr.11. 378, 120 S.W.2d 590, 592. Knowledge and concealment not sufficient. Wallis v. State, Okl.
Cr.App., 292 P. 1056, 1057.
Falsely denying having knowledge of crime not of itself
sufficient. Tipton v. State, 126 Tex.Cr.R. 439, 72 S.W.2d
290, 293.
Black's Law Dictionary Revised 4th Ed.-3
ACCORD, v. In practice. To agree or concur,
as one judge with another. "I accord." Eyre,
C. J., 12 Mod. 7. "The rest accorded." 7 Mod.
361.
ACCORD AND SATISFACTION. An agreement
between two persons, one of whom has a right of
action against the other, that the latter should do
or give, and the former accept, something in satisfaction of the right of action different from, and
usually less than, what might be legally enforced.
33
ACCORD
When the agreement is executed, and satisfaction
has been made, it is called "accord and satisfaction." Rogers v. Spokane, 9 Wash. 168, 37 P. 300.
It is discharge of contract, or of disputed claim arising
either from contract or from tort, by substitution of agreement between parties in satisfaction of such contract or
disputed claim and execution of the agreement. Nelson v.
Chicago Mill & Lumber Corporation, C.C.A.Ark., 76 F.2d
17, 100 A.L.R. 87.
"Accord and satisfaction" results where there is assent
to acceptance of payment in compromise of dispute, or in
extinguishment of liability uncertain in amount, or where
payment, coupled with condition whereby use of money
will be wrongful if condition is ignored, is accepted. Hudson v. Yonkers Fruit Co., 258 N.Y. 168, 179 N.E. 373.
Regardless of whether claim is liquidated or unliquidated.
May Bros. v. Doggett, 155 Miss. 849, 124 So. 476, 478.
Settlement of claims under insurance policies. Lehaney
v. New York Life Ins. Co., 307 Mich. 125, 11 N.W.2d 830,
832.
Accepted amount tendered by insurer as cash surrender
value of policies. Greenberg v. Metropolitan Life Ins. Co.,
379 Ill. 421, 41 N.E.2d 495, 497, 140 A.L.R. 775.
See, also, Sierra & San Francisco Power Co. v. Universal Electric & Gas Co., 197 Cal. 376, 241 P. 76, 80.
More recently, a broader application of the doctrine has
been made, where one promise or agreement is set up in
satisfaction of another. Continental Nat. Bank v. McGeoch, 92 Wis. 286, 66 N.W. 606.
An "accord and satisfaction arises" where parties, by a
subsequent agreement, have satisfied the former one, and
the latter agreement has been executed. The execution
of a new agreement may itself amount to a satisfaction,
where it is so expressly agreed by the parties ; and without such agreement, if the new promise is founded on a
new consideration, in which case the taking of the new
consideration amounts to the satisfaction of the former
contract.
A dispute or controversy is not an essential element of
some forms of accord and satisfaction, as an accord and
satisfaction of a liquidated claim by the giving and acceptance of a smaller sum and some additional consideration,
such as new security, payment of the debt before due,
payment by a third person, or where property or personal
services are accepted from an insolvent debtor in satisfaction. Burgamy v. Holton, 165 Ga. 384, 141 S.E. 42, 47.
"Composition settlement" contemplates agreement not
only between debtor and creditors, but also among creditors, whereas "accord and satisfaction" is agreement
between debtor and single creditor. Russell v. Douget,
La.App., 171 So. 501, 502.
"Novation" is a species of "accord and satisfaction".
Munn v. Town of Drakesville, 226 Iowa 1040, 285 N.W. 644,
648.
See Acceptance; Composition; Compromise;
Novation.
ACCORDANCE. Agreement; harmony; concord; conformity. Webster, Dict.; City and
County of San Francisco v. Boyd, 22 Cal.2d 685,
140 P.2d 666, 668.
An act done .in accordance with a purpose once formed
is not necessarily an act done in pursuance of such purpose, for the purpose may have been abandoned before the
act was done. State v. Robinson, 20 W.Va. 713, 742. A
charter providing that a city's power of taxation shall be
exercised "in accordance with" the state Constitution and
laws means in a manner not repugnant to or in conflict
or inconsistent therewith. City of Norfolk v. Norfolk
Landmark Pub. Co., 95 Va. 564, 28 S.E. 959, 960. The
words "in accordance with this act" as used in N. M.
Laws 1899, c. 22, § 25, dealing with validity of tax titles,
was not improperly interpreted as meaning "under this
act. — Straus v. Foxworth, 231 U.S. 162, 34 S.Ct. 42, 44,
58 L.Ed. 168.
"Holt, C. J., accordant," 6 Mod. 299; "Powys, J.,
accord," "Powell, J., accord," Id. 298.
ACCOUCHEMENT. The act of a woman in giving birth to a child. The fact of the accouchement, which may be proved by the direct testimony of one who was present, as a physician or
midwife, is often important evidence in proving
parentage.
ACCOUNT. A detailed statement of the mutual
demands in the nature of debt and credit between
parties, arising out of contracts or some fiduciary
relation. Portsmouth v. Donaldson, 32 Pa. 202, 72
Am.Dec. 782.
A statement in writing, of debts and credits, or
of receipts and payments; a list of items of debts
and credits, with their respective dates. Rensselaer Glass Factory v. Reid, 5 Cow., N.Y., 593.
An "account" is defined as a statement of pecuniary
transactions; a record or course of business dealings
between parties ; a list or statement of monetary transactions, such as payments, losses, sales, debits, credits, etc.,
in most cases showing a balance or result of comparison
between items of an opposite nature; and is not held to
include a liability for unliquidated damages resulting
from the breach of an entire contract, expressing only
an entire consideration. Harnischfeger Sales Corporation
v. Pickering Lumber Co., C.C.A.Mo., 97 F.2d 692, 695.
The word is sometimes used to denote the balance, or
the right of action for the balance, appearing due upon a
statement of dealings ; as where one speaks of an assignment of accounts ; but there is a broad distinction between
an account and the mere balance of an account, resembling
the distinction in logic between the premises of an argument and the conclusions drawn therefrom. A balance is
but the conclusion or result of the debit and credit sides
of an account. It implies mutual dealings, and the existence of debt and credit, without which there could be no
balance. McWilliams v. Allan, 45 Mo. 574.
A generic term, difficult to define, having various meanings, depending somewhat upon the surrounding circumstances and the connection in which it is used. Wolcott
& Lincoln v. Butler, 155 Kan. 105, 122 P.2d 720, 722, 141
A. L. R. 356.
Flexible in meaning, meaning valuation; worth; value.
Ex parte Means, 200 Ala. 378, 76 So. 294; may refer either
to past or future indebtedness, Semel v. Braun, 157 N.Y.
S. 907, 908, 94 Misc. 238; an itemized account, Brooks v.
International Shoe Co., 132 Ark. 386, 200 S.W. 1027.
Closed
An account to which no further additions can
be made on either side, but which remains stil.
open for adjustment and set-off, which distinguishes it from an account stated. Mandeville v. Wilson, 5 Cranch 15, 3 L.Ed. 23.
Current
An open or running or unsettled account between two parties; the antithesis of an account
stated. See Watson v. Gillespie, 200 N.Y.S. 191,
198, 205 App.Div. 613; Caffarelli Bros. v. Lyons
Bros. Co., Tex.Civ.App., 199 S.W. 685, 686; Continental Casualty Co. v. Easley, Tex.Civ.App., 290
S.W. 251, 253.
An "account current" is an active checking account,
through which credit and debit items are constantly passing. In re Fricke's Will, 202 N.Y.S. 906, 912, 122 Misc.
427.
All items must constitute one demand. Meyers v. , Barrett & Zimmerman, 196 Minn. 276, 264 N.W. 769, 773.
ACCORDANT. Fr. and Eng. Agreeing; concurring. "Baron Parker, accordant," Hardr. 93;
34
ACCOUNT FOR
Monthly statements rendered by bank without depositor's objection, Pierce & Garnet v. Live Stock Nat. Bank,
213 Iowa 1388, 239 N.W. 580, 583.
Unperformed promise of one party to pay a stated sum.
Hammond Lumber Co. v. Richardson Building & Lumber
Co., 209 Cal. 82, 285 P. 851, 853.
An agreement between 'parties who have had previous
transactions of a monetary character that all the items of
the account representing such transactions, and the balance struck, are correct, together with a promise, express
or implied, for the payment of such balance. Pelavin v.
Fenton, Davis & Boyle, 255 Mich. 680, 239 N.W. 268, 269.
No particular form is necessary; it may be oral, written, partly oral and partly written. Murphy v. Smith, 26
Ariz. 394, 226 P. 206, 208. An account stated is not ordinarily recognized in Virginia and West Virginia, except
as between merchant and merchant, and principal and
agent, with mutual accounts. Price Hill Colliery Co. v.
Pinkney, 96 W.Va. 74, 122 S.E. 434, 436. This was also a
common count in a declaration upon a contract under
which the plaintiff might prove an absolute acknowledgment by the defendant of a liquidated demand of a fixed
amount, which implies a promise to pay on request. It
might be joined with any other count for a money demand.
The acknowledgment or admission must have been made
to the plaintiff or his agent. Wharton.
Duties
Duties payable by the English customs and inland revenue act, 1881, (44 Vict. c. 12, § 38,) on a
donatio mortis causa, or on any gift, the donor of
which dies within three months after making it,
or on joint property voluntarily so created, and
taken by survivorship, or on property taken under
a voluntary settlement in which the settlor had a
life-interest.
Mutual
Accounts comprising mutual credits between
the parties; or an existing credit on one side
which constitutes a ground for credit on the other,
or where there is an understanding that mutual
debts shall be a satisfaction or set-off pro tanto
between the parties. McConnell v. Arkansas Coffin Co., 172 Ark. 87, 287 S.W. 1007.
Open
An account which has not been finally settled
or closed, but is still running or open to future adjustment or liquidation. Open account, in legal
as well as in ordinary language, means an indebtedness subject to future adjustment, and which
may be reduced or modified by proof. James v.
Lederer-Strauss & Co., 32 Wyo. 377, 233 P. 137,
139.
ACCOUNT, or ACCOUNT RENDER. In practice. "Account," sometimes called "account render," was a form of action at common law against
a person who by reason of some fiduciary relation
(as guardian, bailiff, receiver, etc.) was bound to
render an account to another, but refused to do so.
Portsmouth v. Donaldson, 32 Pa. 202, 72 Am.Dec.
782; Peoples Finance & Thrift Co. of Visalia v.
Bowman, 137 P.2d 729, 731, .58 Cal.App.2d 729.
An open account can become an account stated only by
the debtor's admission of liability, or failure to deny liability for a reasonable time after receipt of account.
Brooks v. White, 187 N. C. 656, 122 S.E. 561.
"Action of account" is common-law action to compel
person to render account for property or money of another.
Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606, 609. Equitable in nature. Gaines Bros. Co. v. Gaines, 188 Okl. 300,
108 P.2d 177, 179.
In England, this action early fell into disuse; and as it is
one of the most dilatory and expensive actions known to
the law, and the parties are held to the ancient rules of
pleading, and no discovery can be obtained, it never was
adopted to any great extent in the United States. But in
some states this action was employed, chiefly because there
were no chancery courts in which a bill for an accounting
would lie. The action is peculiar in the fact that two
judgments are rendered, a preliminary judgment that the
defendant do account with the plaintiff (quod computet)
and a final judgment (quod recuperet) after the accounting for the balance found due. Field v. Brown, 146 Ind.
293, 45 N.E. 464, 16 Blatchf. 178.
Payable
"Accounts payable" are contract obligations owing by a person on open account. West Virginia
Pulp & Paper Co. v. Karnes, 120 S.E. 321, 322, 137
Va. 714; State Tax Commission v. Shattuck, 38
P.2d 631, sn, 44 Ariz. 379.
Public
The accounts kept by officers of the nation,
state, or kingdom, of the receipt and expenditure
of the revenues of the government.
ACCOUNT-BOOK. A book kept by a merchant,
trader, mechanic, or other person, in which are
entered from time to time the transactions of his
trade or business. Greenl. Ev. §§ 115-118.
Rendered
An account made out by the creditor, and presented to the debtor for his examination and acceptance. When accepted, it becomes an account
stated. Freeland v. Cocke, 17 Va. (3 Munf.) 352.
Volumes bound or sewed together in which accounts are
regularly kept, and excluding collections of loose and indeterminate memoranda. W. T. Raleigh Co. v. Rotenberry,
174 Miss. 319, 164 So. 5, 6. May now include modern book
of detachable leaves, but leaves must be of such appropriate uniformity of material as reasonably to constitute
leaves of account book in which they are contained. W. T.
Raleigh Co. v. Rotenberry, 174 Miss. 319, 164 So. 5, 6.
Settled
One in which the balance has been in fact paid,
thereby differing from an account stated. See
Dempsey v. McGinnis, 219 S.W. 148, 150, 203 Mo.
App. 494.
Stated
The settlement of an account between the parties, with a balance struck in favor of one of
them; an account rendered by the creditor, and
by the debtor assented to as correct, either expressly, or by implication of law from the failpre
to object. Preston v. La Belle View Corporation,
212 N.W. 286, 288, 192 Wis. 168.
ACCOUNT COMPUTATIO. The primary idea of
"account computatio", whether in proceedings of
courts of law or equity, is some matter of debt
and credit, or demand in nature thereof. Coleman v. Kansas City, 351 Mo. 254, 173 S.W.2d 572,
576.
ACCOUNT FOR. To pay over the money to the
person entitled thereto. U. S. v. Rehwald, D.C.
Cal., 44 F.2d 663.
35
ACCOUNT IN BANK
ACCOUNT IN BANK, See Bank Account.
character, and give him credit and rank accordingly. Burke. (2) To send with credentials as
an envoy. Webst.Dict. This latter use is now the
accepted one.
ACCOUNTABLE. Subject to pay; responsible;
liable. Where one indorsed a note "A. C. accountable," it was held that, under this form of indorsement, he had waived demand and notice. Furber
v. Caverly, 42 N.H. 74.
ACCREDITED LAW SCHOOL. "An accredited
law school" and a "law school approved by this
court," are synonymous. Ex parte State Board
of Law Examiners of Florida, 141 Fla. 706, 193
So. 753.
ACCOUNTABLE RECEIPT. An instrument acknowledging the receipt of money or personal
property, coupled with an obligation to account
for or pay or deliver the whole or some part of it
to some person. State v. Riebe, 7 N.W. 262, 27
Minn. 315.
ACCREDITED REPRESENTATIVE. As respects
service of process, representative having general
authority to act. Rorick v. Stilwell, 101 Fla. 4,
133 So. 609, 615.
ACCOUNTANT. One who keeps accounts; a
person skilled in keeping books or accounts;
an expert in accounts or bookkeeping. See U. S.
ex rel. Liebmann v. Flynn, D.C.N.Y., 16 F.2d 1006,
1007; Frazer v. Shelton, 150 N.E. 696, 701, 320
Ill. 253.
ACCREDULITARE. L. Lat. In old records.
To purge an offense by oath. Blount; Whishaw.
ACCRESCERE. In the civil and old English law.
To grow to; to increase; to pass to, and become
united with, as soil to land per alluvionem. Dig.
41, 1, 30, pr. The term is used in speaking of
islands which are formed in rivers by deposit;
Calvinus, Lex.; 3 Kent 428. It is used in a related sense in the common-law phrase jus accrescendi, the right of survivorship; 1 Washb.R.P.
426.
Pleading
To commence; to arise; to accrue. Quod actio
non accrevit infra sex anos, that the action did
not accrue within six years; 3 Chit.P1. 914.
One competent to design and control systems of accounts.
Roberts v. Hosking, 95 Mont. 562, 28 P.2d 199, 201.
A person who renders an account: an executor, guardian, etc.
ACCOUNTANT GENERAL, or ACCOMPTANT
GENERAL. An officer of the court of chancery,
appointed by act of parliament to receive all
money lodged in court, and to place the same in
the Bank of England for security. 12 Geo. I. c.
32; 1 Geo. IV, c. 35; 15 & 16 Vict. c. 87, §§ 18-22,
39. See Daniell, Ch.Pr. (4th Ed.) 1607 et seq.
The office, however, has been abolished by 35 &
36 Vict. c. 44, and the duties transferred to her
majesty's paymaster general.
ACCRETION. The act of growing to a thing;
usually applied to the gradual and imperceptible
accumulation of land by natural causes, as out of
the sea or a river.
ACCOUNTANTS, CHARTERED. Persons skilled
in the keeping and examination of accounts, who
are employed for the purpose of examining and
certifying to the correctness of accounts of corporations and others. British Commonwealth
equivalent of Certified Public Accountant.
Civil Law
The right of heirs or legatees to unite or aggregate with their shares or portions of the estate
the portion of any co-heir or legatee who refuses
to accept it, fails to comply with a condition, becomes incapacitated to inherit, or dies before the
testator. Anderson v. Lucas, 204 S.W. 989, 993,
140 Tenn. 336. Under a deed of trust: Miller v.
Douglass, 192 Wis. 486, 213 N.W. 320, 322.
ACCOUNTING. An act or system of making up
or settling accounts; a statement of account, or
a debit and credit in financial transactions. Kansas City v. Burns, 137 Kan. 905, 22 P.2d 444.
Mortgages
As used in a mortgage on cattle, with all increase thereof and accretions thereto, the word
"accretions" is not confined to the results of natural growth, but includes the additions of parts
from without, i. e., of cattle subsequently added
to the herd. Stockyards Loan Co. v. Nichols,
C.C.A.Okl., 243 F. 511, 513, 1 A.L.R. 547.
Rendition of an account, either voluntarily or by order
of a court. Buxton v. Edwards, 134 Mass. 567, 578. In the
latter case, it imports a rendition of a judgment for the
balance ascertained to be due. Apple v. Smith, 106 Kan.
717, 190 P. 8, 10. The term may include payment of the
amount due. Pyatt v. Pyatt, 46 N.J.Eq. 285, 18 A. 1048.
ACCOUNTS RECEIVABLE. Contract obligations
owing to a person on open account. West Virginia Pulp & Paper Co. v. Karnes, 137 Va. 714,
120 S.E. 321, 322; charge accounts, Haverfield Co.
v. Evatt, 143 Ohio St. 58, 54 N.E.2d 149, 152, installment balances, Duke Power Co. v. Hillsborough Tp., Somerset County, 20 N.J.Misc. 240, 26
A.2d 713, 725.
Realty
Addition of portions of soil, by gradual deposition through the operation of natural causes, to
that already in possession of owner. St. Louis,
etc., R. Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931, 8
L.R.A. 559, 22 Am.St.Rep. 195; 51 L.R.A. 425, n.;
Willett v. Miller, 176 Okl. 278, 55 P.2d 90, 92. Along
banks of navigable or unnavigable stream. Smith
v. Whitney, 105 Mont. 523, 74 P.2d 450, 453, change
in river boundary, Hancock v. Moore, Tex.Civ.
ACCOUPLE. To unite; to marry. Ne unques
accouple, never married.
ACCREDIT. In international law. (1) To acknowledge; to receive as an envoy in his public
36
ACCRUE
App., 137 S.W.2d 45, 51, 52. Tideland artificially
filled was not an "accretion". City of Newport
Beach v. Fager, 39 Cal.App.2d 23, 102 P.2d 438,
442.
Accretion of land is of two kinds : By alluvion, 1. e., by
the washing up of sand or soil, so as to form firm ground;
or by dereliction, as when the sea shrinks below the usual
water-mark. The term "alluvion" is applied to deposit
itself, while "accretion" denotes the act. However, the
terms are frequently used synonymously. Katz v. Patterson, 135 Or. 449, 296 P. 54, 55. In determining whether
change in course of river is by "accretion" or "avulsion,"
test is not whether witnesses might see from time to time
that progress has been made, but whether witnesses could
perceive change while it was going on. Goins v. Merryman, 183 Okl. 155, 80 P.2d 268, 270. Land uncovered by
gradual subsidence of water is not an "accretion" but a
"reliction." Independent Stock Farm v. Stevens, 128 Neb.
619, 259 N.W. 647, 648.
Trust Property
Receipts other than those ordinarily considered
as income; and ordinary cash dividends, the sole
income, were not accretions. Doty v. C. I. R., C.C.
A.1, 148 F.2d 503, 505.
See Accrue; Avulsion; Alluvion; Reliction.
Internal Revenue, C.C.A.9, 90 F.2d 932, 936. To
attach itself to, as a subordinate or accessory
claim or demand arises out of, and is joined to,
its principal. Lifson v. Commissioner of Internal
Revenue, C.C.A.8, 98 F.2d 508.
Produce of money lent. "Interest accrues to principal."
Weiss v. Commissioners of Land Office, 182 Okl. 39, 75 P.2d
1142, 1144. Costs accrue to a judgment.
The term is also used of independent or original
demands, and then means to arise, to happen, to come into
force or existence; to vest; as in the phrase, "The right
of action did not accrue within six years." Amy v. Dubuque, 98 U.S. 470, 476, 25 L. Ed. 228. To 'become a present
right or demand; to come to pass. H. Liebes & Co. v.
Commissioner of Internal Revenue, C.C.A.9, 90 F.2d 932,
936.
It is distinguished from sustain; Adams v. Brown, 4
Litt. (Ky.) 7; and from owing; Gross v. Partenheimer,
159 Pa. 556, 28 A. 370; Fay v. Holloran, 35 Barb. (N. Y.)
295; it is also distinguished from arise; State v. Circuit
Court of Waushara County, 165 Wis. 387, 162 N.W. 436,
437.
Cause of Action
A cause of action "accrues" when a suit may
be maintained thereon. Dillon v. Board of Pension Com'rs of City of Los Angeles, 18 Ca1.2d 427,
116 P.2d 37, 39, 136 A.L.R. 800. Whenever one
person may sue another. Hensley v. Conway,
Tex.Civ.App., 29 S.W.2d 416, 418.
ACCROACH. To encroach; to exercise power
without due authority. In French law, to delay.
Whishaw.
Cause of action "accrues," on date that damage is sustained and not date when causes are set in motion which
ultimately produce injury. City of Philadelphia v. Lieberman, C.C.A.Pa., 112 F.2d 424, 428. Date of injury. Fredericks v. Town of Dover, 125 N.J.L. 288, 15 A.2d 784, 787.
When actual damage has resulted. National Lead Co. v.
City of New York, C.C.A.N.Y., 43 F.2d 914, 916. As soon
as contract is breached. Wichita Nat. Bank v. United
States Fidelity & Guaranty Co., Tex.Civ.App., 147 S.W.2d
295, 297.
To attempt to exercise royal power. 4 Bl.Comm. 76. A
knight who forcibly assaulted and detained one of the
king's subjects till he paid him a sum of money was held
to have committed treason, on the ground of accroachment. 1 Hale, P.C. 80.
ACCROCHER. Fr. To delay; retard; put off.
Accrocher un procès, to stay the proceedings in
a suit.
Contracts
The word accrued, as Used in reference to contracts in which process may be sent out of the
country to be served, has reference to the place
where the contract was made and executed.
Phelps v. McGee, 18 Ill, 155, 158.
ACCRUAL, CLAUSE OF. See Accruer, Clause of.
ACCRUAL BASIS. A method of keeping accounts
which shows expenses incurred and income earned
for a given period, although such expenses and
income may not have been actually paid or received in cash. Orlando Orange Groves Co. v.
Hale, 119 Fla. 159, 161 So. 284.
Taxation
Income "accrues" to taxpayer when there arises
to him a fixed or unconditional right to receive it.
Franklin County Distilling Co. v. Commissioner of
Internal Revenue, C.C.A.6, 125 F.2d 800, 804, 805.
But not unless there is a reasonable expectancy
that the right will be converted into money or its
equivalent. Swastika Oil & Gas Co. v. Commissioner of Internal Revenue, C.C.A.6, 123 F.2d
382, 384.
Where taxpayer makes returns on accrual basis,
item "accrues" when all events occur which fix
amount payable and determine liability of taxpayer. Hudson Motor Car Co. v. U. S., Ct.C1., 3 F.
Supp. 834, 847.
Tax "accrues" for deduction when all events
have occurred which fix amount of tax and determine liability of taxpayer for it, although there
has not yet been assessment or maturity. Elmhirst v. Duggan, D.C.N.Y., 14 F.Supp. 782, 784.
Estate tax "accrued," immediately on death,
though not payable until one year thereafter.
Ewbank v. U. S., C.C.A.Ind., 50 F.2d 409.
Right to receive and not the actual receipt determines
inclusion of amount in gross income. When right to
receive an amount becomes fixed, right accrues. H. Liebes
& Co. v. Commissioner of Internal Revenue, C.C.A.9, 90
F.2d 932, 937. Obligations payable to or by taxpayer are
treated as if discharged when incurred. H. Liebes & Co.
v. Commissioner of Internal Revenue, C.C.A.9, 90 F.2d 932,
936. Entries are made of credits and debits when liability
arises, whether received or disbursed. Insurance Finance
Corporation v. Commissioner of Internal Revenue, C.C.A.3,
84 F.2d 382. Books showing sales by accounts receivable
and purchases by accounts payable, and set up inventories
at beginning and end of year. Consolidated Tea Co. v.
Bowers, D.C.N.Y., 19 F.2d 382.
ACCRUE. Derived from the Latin, "ad" and
"creso," to grow to. In past tense, in sense of
due and payable; vested. It means to increase;
to augment; to come to by way of increase; to
be added as an increase, profit, or damage. Hartsfield Co. v. Shoaf, 184 Ga. 378, 191 S.E. 693, 695.
Acquired; fell due; made or executed; matured;
occurred; received; vested; was created; was
incurred. H. Liebes & Co. v. Commissioner of
37
ACCRUED
ACCRUED COMPENSATION. Awarded compensation, due and payable. Wood Coal Co. v. State
Compensation Com'r, 119 W.Va. 581, 195 S.E. 528,
529,
Yard, 42 N.J.Law, 357; People's F. Ins. Co. v.
Parker, 34 N.J.Law, 479, 35 N.J.Law, 575. See
Earnings.
ACCUMULATIONS. Increase by continuous or
repeated additions, or, if taken literally, means
either profit accruing on sale of principal assets,
or increase derived from their investment, or
both. In re Wells' Will, 300 N.Y.S. 1075, 1078,
165 Misc. 385.
Adding of interest or income of a fund to principal pursuant to provisions of a will or deed,
preventing its being expended. In re Watson's
Will, 258 N.Y.S. 755, 144 Misc. 213.
ACCRUED DEPRECIATION. The lessened service value of the utility plant due to its consumption in furnishing service. Wisconsin Telephone
Co. v. Public Service Commission, 232 Wis. 274, 287
N.W. 122, 152. Portion of useful service life
which has expired. State ex rel. City of St. Louis
v. Public Service Commission, 341 Mo. 920, 110 S.
W.2d 749, 768.
ACCRUED RIGHT. As used in Constitution, a
matured cause of action, or legal authority to demand redress. Morley v. Hurst, 174 Okl. 2, 49 P.
2d 546, 548.
When an executor or other trustee masses the rents,
dividends, and other income which he receives, treats it as
a capital, invests it, makes a new capital of the income
derived therefrom, invests that, and so on, he is said to
accumulate the fund, and the capital and accrued income
thus procured constitute accumulations. Hussey v. Sargent, 116 Ky. 53, 75 S.W. 211, In re Rogers' Estate, 179
Pa. 609, 36 A. 340. See Perpetuity.
ACCRUER (or ACCRUAL), CLAUSE OF. An express clause, frequently occurring in the case of
gifts by deed or will to persons as tenants in
common, providing that upon the death of one
or more of the beneficiaries his or their shares
shall go to the survivor or survivors. Brown.
The share of the decedent is then said to accrue
to the others.
ACCUMULATIVE. That which accumulates, or is
heaped up; additional. Said of several things
heaped together, or of one thing added to another.
ACCUMULATIVE JUDGMENT. Where a person
has already been convicted and sentenced, and a
second or additional judgment is passed against
him, the execution of which is postponed until the
completion of the first sentence, such second
judgment is said to be accumulative.
As to accumulative "Legacy," see that title.
ACCRUING. Inchoate; in process of maturing.
That which will or may, at a future time, ripen
into a vested right, an available demand, or an
existing cause of action. Hartsfield Co. v. Shoal,
184 Ga. 378, 191 S.E. 693, 695. Arising by way of
increase, growth or profit. It connotes continuing
growth, increase or augmentation. Globe Indemnity Co. v. Bruce, C.C.A.Okl., 81 F.2d 143, 153.
ACCUMULATIVE LEGACY. A second, double
or additional legacy; a legacy given in addition
to another given by the same instrument, or by
another instrument.
ACCRUING COSTS. Costs and expenses incurred
after judgment.
ACCUMULATIVE SENTENCE. % A sentence, additional to others, imposed on a defendant who
has been convicted upon an indictment containing
several counts, each of such counts charging a
distinct offense, or who is under conviction at the
same time for several distinct offenses; one of
such sentences to begin at the expiration of another. Carter v. Mclaughry, 183 U.S. 365, 22 S.
Ct. 181, 46 L.Ed. 236; State v. Hamby, 126 N.C.
1066, 35 S.E. 614; Braudon v. Mackey, 122 Kan.
207, 251 P. 176, 177.
ACCUSARE NEMO SE DEBET, NISI CORAM
DEO. No one is bound to accuse himself, except
before God. See Hardres, 139.
ACCRUING INTEREST. Running or accumulating interest, as distinguished from accrued or
matured interest; interest daily accumulating on
the principal debt but not yet due and payable.
Gross v. Partenheimer, 159 Pa. 556, 28 A. 370.
ACCRUING RIGHT. One that is increasing, enlarging, or augmenting. Richards v. Land Co.,
54 F. 209, 4 C.C.A. 290.
ACCT. An abbreviation for "account," of such
universal and immemorial use that the courts
will take judicial notice of its meaning. Heaton
v. Ainley, 108 Iowa, 112, 78 N.W. 798.
ACCUMULATED PROFITS. Earned surplus or
undivided profits. Flint v. Commissioner of Corporations and Taxation, 43 N.E.2d 789, 791, 792, 312
Mass. 204.
ACCUSATION. A formal charge against a person, to the effect that he is guilty of a punishable
offense, laid before a court or magistrate having
jurisdiction to inquire into the alleged crime.
Coplon v. State, 15 Ala.App. 331, 73 So. 225, 228.
See Accuse.
Include profits earned and invested. Commissioner of
Corporations and Taxation v. Filoon, 310 Mass. 374, 38
N.E.2d 693, 698, 700.
And they take into account losses, as well as gains. Commissioner of Corporations and Taxation v. Church, Mass.,
61 N.E.2d 143, 145.
"Accusation" is equivalent of "information" at common
law which is mere allegation of prosecuting officer by
whom it is preferred. Sutton v. State, 54 Ga.App. 349, 188
S.E. 60, 62.
ACCUMULATED SURPLUS. In statutes relative
to the taxation of corporations, this term refers
to the fund which the company has in excess of
its capital arid liabilities. Trenton Iron Co. v.
ACCUSATOR POST RATIONABILE TEMPUS
NON EST AUDIENDUS, NISI SE BENE DE
OMISSIONE EXCUSAVERIT. Moore, 817. An
accuser ought not to be heard after the expiration.
38
ACOLYTE
of a reasonable time, unless he can account satisfactorily for the delay.
ACCUSATORY PART. The "accusatory part" of
an indictment is that part where the offense is
named. Deaton v. Commonwealth, 220 Ky. 343,
295 S.W. 167, 168.
ACCUSE. To bring a formal charge against a
person, to the effecf that he is guilty of a crime
or punishable offense, before a court or magistrate having jurisdiction to inquire into the alleged crime. People v. Frey, 112 Mich. 251, 70 N
W. 548.
In its popular sense "accusation" applies to all derogatory charges or imputations, whether or not they relate to
a punishable legal offense, and however made, whether
orally, by newspaper, or otherwise. People v. Braman, 30
Mich. 460. But in legal phraseology, it is limited to such
accusations as have taken shape in a prosecution. United
States v. Patterson, 150 U.S. 65, 14 S.Ct. 20, 37 L.Ed.
999.
ACCUSED. "Accused" is the generic name for
the defendant in a criminal case, and is more appropriate than either "prisoner" or "defendant."
1 Car. & K. 131.
The person against whom an accusation is made; one
who is charged with a crime or misdemeanor. See People
v. Braman, 30 Mich. 468. The term cannot be said to
apply to a defendant in a civil action; Castle v. Houston,
19 Kan. 417, 37 Am.Rep. 127; and see Mosby v. Ins. Co., 31
Gratt. (Va.) 629.
ACCUSER. The person by whom an accusation
is made.
ACCUSTOMED. Habitual; often used; synonymous with usual; Farwell v. Smith, 16 N.J.Law,
133.
ACEPHALI. The levelers in the reign of Hen.
who acknowledged no head or superior. Leges H.
1; Cowell. Also certain ancient heretics, who appeared about the beginning of the sixth century,
and asserted that there was but one substance in
Christ, and one nature. Wharton; Gibbon, Rom.
Emp. ch. 47.
ACKNOWLEDGMENT. To "acknowledge" is to
admit, affirm, declare, testify, avow, confess, or
own as genuine. Favello v. Bank of America
Nat. Trust & Savings Ass'n, 24 Cal.App.2d 342,
74 P.2d 1057, 1058.
Child
An avowal or admission that the child is one's
own; recognition of a parental relation, either by
a written agreement, verbal declarations or statements, by the life, acts, and conduct of the parties,
or any other satisfactory evidence that the relation was recognized and admitted. In re Spencer,
Sur., 4 N.Y.S. 395; In re Hunt's Estate, 33 N.Y.S.
256, 86 Hun, 232.
Parents formally acknowledged child during ceremony
in which both marriage and baptism took place. Cormier
v. Cormier, 185 La. 968, 171 So. 93, 97, 98. Letter to registrar of college where child was student. In re Horne's
Estate, 149 Fla. 710, 7 So.2d 13, 16.
The "public acknowledgment" of paternity, under Civ.
Code Cal. § 230, is the opposite of private acknowledgment, and means the same kind of acknowledgment a
father would make of his legitimate child. In re Baird's
Estate, 193 Cal. 225, 223 P. 974, 994.
Generally
Implying obligation or incurring responsibility.
Weyerhaeuser Timber Co. v. Marshall, C.C.A.
Wash., 102 F.2d 78, 81.
Act of a person who avows or admits the truth of certain
facts which, if established, will entail a civil liability upon
him. Thus, the debtor's acknowledgment of the creditor's
demand or right of action will toll the statute of limitations. Ft. Scott v. Hickman, 112 U.S. 150, 163, 5 Sup.Ct.
56, 28 L.Ed. 636; Letters, Leffek v. Luedeman, 95 Mont.
457, 27 P.2d 511, 91 A.L.R. 286; Lincoln-Alliance Bank &
Trust Co. v. Fisher, 286 N.Y.S. 722, 247 App.Div. 465; payments, Erskine v. Upham, 56 Cal.App.2d 235, 132 P.2d 219,
224, 225. McMahan v. Dorchester Fertilizer Co., 184 Md.
155, 40 A.2d 313, 314.
Testator's statement to attesting witness. Anthony v.
College of the Ozarks, 207 Ark. 212, 180 S.W.2d 321, 324.
ACHIEVE SUBJECT MATTER. The English
equivalent for patentability. Mesta Mach. Co. v.
Federal Machine & Welder Co., C.C.A.Pa., 110 F.
2d 479, 480.
Instruments
Formal declaration before authorized official,
by person who executed instrument, that it is his
free act and deed. Jemison v. Howell, 161 So.
806, 230 Ala. 423, 99 A.L.R. 1511. The certificate
of the officer on such instrument that it has been
so acknowledged. Williford v. Davis, 106 Okl.
208, 232 P. 828, 831.
Money
A sum paid in some parts of England by copyhold tenants on the death of their lords, as a
recognition of their new lords, in like manner as
money is usually paid on the attornment of tenants. Called a fine by Blackstone; 2 Bla.Com.
98.
Separate Acknowledgment
An acknowledgment of a deed or other instrument, made by a married woman, on her examination by the officer separate and apart from her
husband. Hutchinson v. Stone, 79 Fla. 157, 84
So. 151, 154.
ACKNOWLEDGE. To own, avow, or admit; to
confess; to recognize one's acts, and assume the
responsibility therefor.
ACOLYTE. An inferior church servant, who,
next under the sub-deacon, follows and waits upon
the priests and deacons, and performs the offices
ACEQUIA. A ditch, channel, or canal, through
which water, diverted from its natural course, is
conducted, for use in irrigation or other purposes;
public ditches. Comp.L.N.Mex. tit. 1, c. 1, § 6
(Comp.St.1929, §1 151-401).
ACHAT, also ACHATE, ACHATA, ACHET. In
French law. A purchase or bargain. Cowell.
It is used in some of our law-books, as well as achetor,
a purchaser, which in some ancient statutes means purveyor. Stat. 36 Edw. III; Merlin, Rdpert.
ACHERSET. In old - English law. A measure of
grain, conjectured to have been the same with
our quarter, or eight bushels. Cowell.
39
ACQUAINTED
of lighting the candles, carrying the bread and
wine, and paying other servile attendance. Spelman; Cowell,
ment and presupposes knowledge and assent. Andrew v.
Rivers, 207 Iowa 343, 223 N.W. 102, 105. Imports tacit consent, concurrence, acceptance or assent. Natural Soda
Products Co. v. City of Los Angeles, Cal.App., 132 P.2d
553, 563. A silent appearance of consent. Worcester,
Diet. Darnell v. Bidwell, 115 Me. 227, 98 A. 743, 745, 5 A.L.
R. 1320. Failure to make any objections. Scott v. Jackson,
89 Cal. 258, 26 P. 898. Submission to an act of which one
had knowledge. See Pence v. Langdon, 99 U.S. 578, 25
L.Ed. 420. It imports full knowledge. Rabe v. Dunlap,
51 N.J.Eq. 40, 25 A. 959. Knowledge without objection.
Indiana Harbor Belt R. Co. v. Jones, 220 Ind. 139, 41
N.E.2d 361, 363.
It is to be distinguished from avowed consent, on the
one hand, and from open discontent or opposition, on the
other.
It arises where a person who knows that he is entitled
to impeach a transaction or enforce a right neglects to do
so for such a length of time that, under the circumstances
of the case, the other party may fairly infer that he has
waived or abandoned his right. Norfolk & W. R. Co. v.
Perdue, 40 W.Va. 442, 21 S.E. 755.
Acquiescence and laches are cognate but not equivalent
terms. The former is a submission to, or resting satisfied
with, an existing state of things, while laches implies a
neglect to do that which the party ought to do for his own
benefit or protection. Hence laches may be evidence of
acquiescence. Laches Imports a merely passive assent,
while acquiescence implies active assent. In re Wilbur's
Estate, 334 Pa. 45, 5 A.2d 325, 331. "Acquiescence" relates
to inaction during performance of an act while "inches"
relates to delay after act is done. Bay Newfoundland Co.
v. Wilson & Co., 24 Del.Ch. 30, 4 A.2d 668, 671, 673. "Acquiescence" is synonymous with "abandonment" ; Sclawr v.
City of St. Paul, 132 Minn. 238, 156 N.W. 283, 284, and is
distinguished from "admission" ; Saunders v. BuschEverett Co., 138 La. 1049, 71 So. 153, 154; and from "ratification" and "estoppel in pais" ; Marion Sa y . Bank v.
Leahy, 200 Iowa 220, 204 N.W. 456, 458; but see Murray v.
Smith, 152 N.Y:S. 102, 108, 166 App.Div. 528; differs from
"confirmation", in that confirmation implies a deliberate
act, intended to renew and ratify a transaction known to
be voidable, Bauer v. Dotterer, 202 Ark. 1055, 155 S.W.2d
54, 57. A form of "equitable estoppel", Schmitt v. Wright,
317 Ill.App. 384, 46 N.E.2d 184, 192.
ACQUAINTED. Having personal knowledge of.
Kelly v. Calhoun, 95 U.S. 710, 24 L.Ed. 544. Acquaintance expresses less than familiarity; In re
Carpenter's Estate, 94 Cal. 406, 29 P. 1101. It is
"familiar knowledge"; Wyllis v. Haun, 47 Iowa,
614; Chauvin v. Wagner, 18 Mo. 531.
"Acquaintance" expresses less than familiarity; familiarity less than intimacy. Acquaintance springs from occasional intercourse, familiarity from daily intercourse,
intimacy from unreserved intercourse; acquaintance, having some knowledge, familiarity, from long habit, intimacy, by close connection. Atkins Corporation v. Tourny,
6 Ca1.2d 206, 57 P.2d 480, 483. To be "personally
acquainted with," and to "know personally," are equivalent terms; Kelly v. Calhoun, 95 U.S. 710, 24 L.Ed. 544.
When used with reference to a paper to which a certificate
or affidavit is attached, it indicates a substantial knowledge of the subject-matter thereof. Bohan v. Casey, 5 Mo.
App. 101.
ACQUEREUR. In French and Canadian law.
One who acquires title, particularly to immovable
property, by purchase.
ACQUEST. An estate acquired newly, or by purchase. 1 Reeve, Eng.Law, 56.
ACQUITS. In the civil law. Property which has
been acquired by purchase, gift, or otherwise than
by succession. Immovable property which has
been acquired otherwise than by succession. Merl.
Repert.
Profits or gains of property, as between husband and
wife. Civil Code La. art. 2402. The profits of all the
effects of which the husband has the administration and
enjoyment, either of right or in fact, of the produce of the
joint industry of both husband and wife, and of the
estates which they may acquire during the marriage,
either by donations made jointly to them both, or by purchase, or in any other similar way, even though the purchase be only in the name of one of the two, and not of
both. See Community; Conquéts.
See Admission; Confession; Ratification,
ACQUIESCENCE, ESTOPPEL BY. Acquiescence
is a species of estoppel. Bankers' Trust Co. v.
Rood, 211 Iowa, 289, 233 N.W. 794, 802, 73 A.L.R.
1421.
ACQUIESCE. To give an implied consent to a
transaction, to the accrual of a right, or to any
act, by one's mere silence, or without express
assent or acknowledgment., Scott v. Jackson, 89
Cal. 258, 26 P. 898.
An estoppel arises where party aware of his rights sees
other party acting upon mistaken notion of his rights.
Minear v. Keith Furnace Co., Iowa, 239 N.W. 584, 587.
Injury accruing from one's acquiescence in another's action
to his prejudice creates "estoppel". Lebold v. Inland
Steel Co., C.C.A.I11., 125 F.2d 369, 375; Passive conduct on
the part of one who has knowledge of the facts may be
basis of estoppel. Winslow v. Burns, 47 N.M. 29, 132 P.2d
1048, 1050.
It must appear that party to be estopped was bound in
equity and good conscience to speak and that party claiming estoppel relied upon acquiescence and was misled
thereby to change his position to his prejudice. Sherlock
v. Greaves, 106 Mont. 206, 76 P.2d 87, 91.
Acquiescence in a judgment in order to constitute an
estoppel must be unqualified. Messer v. Henlein, 72 N.D.
63, 4 N.W.2d 587, 589. One who stands by while his
property is sold is "estopped" from setting up title against
purchaser. Meadows v. Hampton Live Stock Commission
Co., 55 Cal.App.2d 634, 131 P.2d 591, 592, 593.
The doctrine is applicable only where there is some element of turpitude or neglect. City of Lafayette v. Keen,
113 Ind. App. 552, 48 N.E.2d 63, 70.
ACQUIESCENCE. Conduct recognizing the existence of a transaction, and intended, in some
extent at least, to carry the transaction, or permit
it to be carried, into effect; it is some act, not
deliberately intended to ratify a former transaction known to be voidable, but recognizing the
transaction as existing, and intended, in some extent at least, to carry it into effect, and to obtain
or claim the benefits resulting from it, and thus
differs from "confirmation," which implies a deliberate act, intended to renew and ratify a transaction known to be voidable. De Boe v. Prentice
Packing & Storage Co., 172 Wash. 514, 20 P.2d
1107, 1110.
Passive compliance or satisfaction ; distinguished from
avowed consent on the one hand, and, on the other, from
opposition or open discontent. Paul v. Western Distributing Co., 142 Kan. 816, 52 P.2d 379, 387. Acquiescence from
which assent: may be reasonably inferred. Frank v. Wilson
& Co., 24 Del.Ch. 237, 9 A.2d 82, 86. Equivalent to assent
inferred from silence with knowledge or from encourage-
ACQUIETANDIS PLEGIIS. A writ of justices,
formerly lying for the surety against a creditor
who refuses to acquit him after the debt has been
satisfied. Reg. of Writs 158; Cowell; Blount.
40
ACQUITTAL
solve, one from an obligation or a liability; or to
legally certify the innocence of one charged with
crime. Dolloway v. Turrill, 26 Wend.N.Y. 383,
400.
ACQUIRE. To gain by any means, usually by
one's own exertions; to get as one's own; to obtain by search, endeavor, practice, or purchase;
receive or gain in whatever manner; come to
have. Clarno v. Gamble-Robinson Co., 190 Minn.
256, 251 N.W. 268, 269.
ACQUIT A CAUTION. The certificate proving
receipt of security that goods shipped from one
French port to another shall not be sent to a
foreign country. Argles, Fr.Merc.Law, 543.
In law of contracts and of descents, to become owner of
property; to make property one's own. Crutchfield v.
Johnson & Latimer, 243 Ala. 73, 8 So.2d 412. To gain
ownership of. Commissioner of Insurance v. Broad Street
Mut. Casualty Ins. Co., 312 Mass. 261, 44 N.E.2d 683, 684.
Broad meaning including both purchase and construction;
acquisition being the act of getting or obtaining something which may be already in existence, or may be
brought into existence through means employed to acquire
it. Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133,
140. Sometimes used in the sense of "procure," Jolly v.
McCoy, 36 Cal.App. 479, 172 P. 618, 619. It does not necessarily mean that title has passed, Godwin v. Tuttle, 70
Or. 424, 141 P. 1120, 1122. Includes taking by devise, U. S.
v. Merriam, 263 U.S. 179. 44 S.Ct. 69, 70 68 L.Ed. 240, 29
A. L. R. 1547.
ACQUIT BACK. In mineral deed, vested in the
grantee the title to such mineral rights as grantor
had at time of execution of deed, where grantor
had received his title from grantee and the expression was intended to reconvey such title. Allen v. Boykin, 199 Miss. 417, 24 So.2d 748, 750.
ACQUITMENT. See Absolution,
ACQUITTAL.
ACQUIRED. To get, procure, secure, acquire.
Jones v. State, 126 Tex.Cr.R. 469, 72 S.W.2d 260,
263.
Contracts
A release, absolution, or discharge from an obligation, liability, or engagement.
Coming to an intestate in any other way than by gift,
devise, or descent from a parent or the ancestor of a parent. In re Miller's Will, 2 Lea (Tenn.) 54.
According to Lord Coke, there are three kinds of acquittal, namely : by deed, when the party releases the obligation; by prescription; by tenure; Co. Litt. 100 a.
ACQUIRED RIGHTS. Those which a man does
not naturally enjoy, but which are owing to his
own procurement, as sovereignty, or the right of
commanding, or the right of property. Borden v.
State, 11 Ark. 519, 527, 44 Am.Dec. 217.
Crimes
The legal and formal certification of the innocence of a person who has been charged with
crime; a deliverance or setting free a person
from a charge of guilt.
ACQUIRER TAX. German estate inheritance legacy tax, not true inheritance or legacy tax, imposed upon recipient, and not affecting executors.
In re Gotthelf's Will, 273 N.Y.S. 247, 152 Misc. 309.
In a narrow sense, it is the absolution of a party accused
on a trial before a traverse jury. Thomas v. De Graffenreid, 2 Nott & McC. (S. C.) 143. Properly speaking,
however, one is not acquitted by the jury but by the judgment of the court. People v. Rogers, 170 N.Y.S. 86, 87,
102 Misc. 437. And he may be legally acquitted by a judgment rendered otherwise than in pursuance of a verdict,
as where he is discharged by a magistrate because of the
insufficiency of the evidence, or the indictment is dismissed
by the court or a nol. pros. entered. State v. Hart, 90 N.J.
Law 261, 101 A. 278. But. compare State v. Smith, 170 N.C.
742; 87 S.E. 98, 99.
"Nol. pros." not equivalent of "acquittal." Bolton v.
State, 166 Miss. 290, 146 So. 453, 454. The unnecessary discharge of the jury without the consent of the accused after
it has been sworn may constitute an acquittal. Riley v.
Commonwealth, 190 Ky. 204, 227 S. W. 146, 147. Acquittal
discharges from guilt, pardon only from punishment.
Younger v. State, 2 W.Va. 579, 98 Am.Dec. 791.
It may occur even though the question of guilt or innocence has never been submitted to a jury, as where a
defendant, having been held under an indictment or information, is discharged because not brought to trial within
the time provided by the Criminal Code. State v. Taylor,
130 Kan. 813, 288 P. 731, 732.
Acquittals in fact are those which take place when the
jury, upon trial, finds a verdict of not guilty.
Acquittals in law are those which take place by mere
operation of law; as where a man has been charged
merely as an assessory, and the principal has been acquitted. 2 Co.Inst. 364. Ccmpare State v. Walton, 186 N.C.
485, 119 S.E. 886, 888.
ACQUISITION. The act of becoming the owner
of certain property; the act by which one acquires or procures the property in anything. State
ex rel. Fisher v. Sherman, 135 Ohio St. 458, 21 N.
E.2d 467, 470. Used also of the thing acquired.
Hartigan v. City of Los Angeles, 170 Cal. 313,
149 P. 590, 592. Taking with, or against, consent.
Scribner v. Wikstrom, 93 N.H. 17, 34 A.2d 658,
660. Especially a material possession obtained by
any means. Jones v. State, 126 Tex.Cr.R. 469, 72
S.W.2d 260, 263.
Original acquisition is that by which a man secures a
property in a thing which is not at the time he acquires
it, and in its then existing condition, the property of any
other individual. It may result from occupancy; 2 Kent,
289; accession; 2 Kent, 293; intellectual labor—namely,
for inventions, which are secured by patent rights; and
for the authorship of books, maps, and charts, which is
protected by copyrights; 1 Bouv.Inst. 508, n.
Derivative acquisitions are those which are procured
from others. Goods and chattels may change owners by
act of law in the cases of forfeiture, succession, marriage,
judgment, insolvency, and intestacy; or by act of the
parties, as by gift or sale.
An acquisition may result from the act of the party himself, or those who are in his power acting for him, as his
children while minors; Gale v. Parrot, 1 N.H. 28. See
Dig. 41. 1. 53; Inst. 2. 9. 3.
See Jeopardy; Autrefois Acquit; Convict.
Feudal Law
The obligation on the part of a mesne lord to
protect his tenant from any claims, entries or
molestations by lords paramount arising out of
the services due to them by the mesne lord. See
Co.Litt. 100a.
See Accession.
ACQUIT. To set free, release or discharge as
from an obligation, burden or accusation. Commonwealth v. Benson, 94 Pa.Super. 10, 15. To ab-
41
ACQUITTANCE
ACQUITTANCE. A written discharge, whereby
one is freed from an obligation to pay money or
perform a duty. It differs from a release in not
requiring to be under seal. Pothier, Oblig. n. 781.
See Milliken v. Brown, 1 Rawle (Pa.) 391.
Tex.Civ.App., 236 S.W. 811, 812. See Comstock v.
Van Deusen, 5 Pick. (Mass.) 163, where a grant of
a right of way across a lot of land was held not
to mean a right to enter at one side, go partly
across and come out at a place on the same side.
And compare Brooklyn Heights R. Co. v. Steers,
106 N.E. 919, 920, 213 N.Y. 76; but see Holley v.
State, 9 Ala.App. 33, 63 So. 738.
This word, though perhaps not strictly speaking synonymous with "receipt," includes it. A receipt is one form
of an acquittance; a discharge is another. A receipt in
full is an acquittance, and a receipt for a part of a demand
or obligation is an acquittance pro tanto. State v. Shelters, 51 Vt. 104, 31 Am.Rep. 679.
ACT, v. In Scotch practice. To do or perform
judicially; to enter of record. Surety "acted in
the Books of Adjournal." 1 Broun, 4.
ACQUITTED. Released; absolved; purged of an
accusation; judicially discharged from accusation;
released from debt, etc. Includes both civil and
criminal prosecutions. Dolloway v. Turrill, 26
Wend. (N.Y.) 383, 399. See Acquittal.
ACT, n. Denotes affirmative; expression of will,
purpose; carries idea of performance; primarily
that which is done or doing; exercise of power,
or effect of which power exerted is cause; a performance; a deed. Brown v. Standard Casket
Mfg.*Co., 234 Ala. 512, 175 So. 358, 364.
ACRE. A quantity of land containing 160 square
rods of land, in whatever shape. Serg. Land Laws
Pa. 185; Cro.Eliz. 476, 665; 6 Coke 67; Poph. 55;
Co.Litt. 5b.
In its most general sense, this noun signifies something
done voluntarily by a person; the exercise of an individual's power ; an effect produced in the external world by
an exercise of the power of a person objectively, prompted
by intention, and proximately caused by a motion of the
will. Herman v. Pan American Life Ins. Co., 183 La. 1045,
165 So. 195, 200. In a more technical sense, it means something done voluntarily by a person, aria of such a nature
that certain legal consequences attach to it. Jefferson
Standard Life Ins. Co. v. Myers, Tex.Com.App., 284 S.W.
216, 218. Thus a grantor acknowledges the conveyance to
be his "act and deed," the terms being synonymous. It
May denote something done by an individual, as a private
citizen, or as an officer ; or by a body of men, as a legislature, a council, or a court of justice; including not
merely physical acts, but also decrees, edicts, laws, judgments, resolves, awards, and determinations. Some general laws made by the Congress of the United States are
styled joint resolutions, and these have the same force and
effect as those styled acts. But see Decher v. Vaughan, 209
Mich. 565, 177 N.W. 388, 392. Carries idea of performance.
Edmonds v. Shirley, 22 Ala.App. 398, 116 So. 303.
Originally the word "acre" (acer, aker, or Sax, cecer)
was not used as a measure of land, or to signify any
determinate quantity of land, but to denote any open
ground, (latum quantumvis agrum,) wide champaign, or
field; which is still the meaning of the German acker,
derived probably from the same source, and is preserved
in the names of some places in England, as Castle Acre,
South Acre, etc. Burrill. Originally a strip in the fields
that was ploughed in the forenoon. Maitland, Domesday
and Beyond, 387.
ACRE FOOT. 325,850 gallons, or the amount of
water which will cover one acre one foot in depth.
Rowles v. Hadden, Tex.Civ.App., 210 S.W. 251,
258.
ACRE RIGHT. "The share of a citizen of a New
England town in the common lands. The value
of the acre right was a fixed quantity in each
town, but varied in different towns. A 10-acre lot
or right in a certain town was equivalent to 113
acres of upland and 12 acres of meadow, and a
certain exact proportion was maintained between
the acre right and salable lands." Messages, etc.,
of the Presidents, Richardson, X, 230.
ACREFIGHT, or ACRE. A camp or field fight;
a sort of duel, or judicial combat, anciently fought
by single combatants, English and Scotch, between
the frontiers of the two kingdoms with sword
and lance. Called "campfight," and the combatants "champions," from the open "acre" or
field that was the stage of trial. Cowell.
ACROMIAL PROCESS. A point in the region of
the shoulder about where the arm joins or fits into
the shoulder blade. Muskogee Electric Traction
Co. v. Mueller, 39 Okl. 63, 134 P. 51, 52.
ACROSS. From side to side. Transverse to the
length of. Hannibal & St. J. R. Co. v. Packet Co.,
8 S.Ct. 874, 125 U.S. 260, 31 L.Ed. 731; but see
Appeal of Bennett's Branch Imp. Co., 65 Pa. 242.
It may mean over, Brown v. Meady, 10 Me. 391,
25 Am.Dec. 248; or "upon and along," Mt. Vernon
Telephone Co. v. Franklin Farmers' Co-op. Telephone Co., 113 Me. 46, 92 A. 934, 935, Ann.Cas.
1917B, 649; or "upon," Jefferson County v. Louisville & I. R. Co., 160 S.W. 502, 504, 155 Ky. 810;
or "within," Quanah, A. & P. Ry. Co. v. Cooper,
An instrument in writing to verify facts. Webster, Dict.
It is used in this sense of the published acts of assembly,
congress, etc. In a sense approaching this, it has been
held in trials for treason that letters and other written
documents were acts; 1 Fost.Cr.Cas. 198; 2 Stark. 116.
Act indicates the intention. 8 Co. 146b; Broom,
Max. 301.
Civil Law
An act is a writing which states in a legal form
that a thing has been said, done, or agreed. Merl.
Repert.
Acts under private signature are those which have been
'made by private individuals under their hands.
Private acts are those made by private persons as registers in relation to their receipts and expenditures, schedules, acquittances, and the like.
Public acts are those which have a public authority, and
which have been made before public officers, are authorized by a public seal, have been made public by the authority of a magistrate, or which have been extracted and been
properly authenticated from public records.
Legislation
A written law, formally ordained or passed by
the legislative power of a state, called in England
an "act of parliament," and in the United States
an "act of congress," or of the "legislature;" a
statute. People v. Tiphaine, 3 Parker, Cr.R. (N.
Y.) 241; United States v. Smith, 27 Fed.Cas. 1167.
42
ACT OF GOD
dering, delaying or defrauding creditors, In re Thompson,
D.C.La., 28 F.Supp. 707, 710; failure to discharge a lien,
In re Flushing Queensboro Laundry, C.C.A.N.Y., 90 F.2d
601. Permitting creditor to obtain any levy, attachment,
judgment, or other lien, In re Day, D.C.Md., 22 F.Supp.
946, 949; assignment for benefit of creditors, In re Roy, D.
C.N.H., 46 F.Supp. 952, 954; or a written admission of one's
inability to pay his debts, In re Turner, D.C.Ky., 51 F.
Supp. 740, 743.
The words bill and law are frequently used synonymously with act, People v. City of Buffalo, 161 N.Y.S. 706,
712, 175 App.Div. 218, but incorrectly; Sedgwick County
Com'rs v. Bailey, 13 Kan. 600; a bill being only the draft
or form of the act presented to the legislature but not
enacted; Southwark Bank v. Corn., 26 Pa. 446. "Act"
does not include ordinances or regulations made by local
authorities, or even statutes having only a local application; People v. City of Buffalo, 157 N.Y.S. 938, 940, 93
Misc. 275; although sometimes used interchangeably with
"measure" and "law" ; Whittemore v. Terral, 140 Ark.
493, 215 S.W. 686, 687. Generally, the word refers to entire
statute enacted, rather than to a section. Board of Trustees of Firemen's Relief and Pension Fund of City of
Muskogee v. Templeton, 184 Okl. 281, 86 P.2d 1000, 1002.
Acts are either public or private. Public acts (also
called general acts, or general statutes, or statutes at
large) are those which relate to the community generally,
or establish a universal rule for the governance of the
whole body politic. Private acts (formerly called special,
Co. Litt. 126a) are those which relate either to particular
persons (personal acts) or to particular places (local acts),
or which operate only upon specified individuals or their
private concerns. Unity v. Burrage, 103 U.S. 454, 26 L.Ed.
465. Public acts are those which concern the whole community and of which courts of law are bound to take
judicial notice. Sasser v. Martin, 101 Ga. 447, 29 S.E. 278.
A "special" or "private" act is one operating only on
particular persons and private concerns; a "local act" is
one applicable only to a particular part of the legislative
jurisdiction. Trumper v. School Dist. No. 55 of Musselshell County, 55 Mont. , 90, 173 P. 946, 947.
To denote an avowal of criminal acts, or the concession
of the truth of a criminal charge, the word "confession"
seems more appropriate.
ACT OF CURATORY. In Scotch law. The act extracted by the clerk, upon any one's acceptance
of being curator. Forb.Inst. pt. 1, b. 1, c. 2, tit. 2.
2 Kames, Eq. 291. Corresponding with the order
for the appointment of a guardian, in English and
American practice.
ACT OF ELIZABETH. See Act of Supremacy.
ACT OF GOD. An act occasioned exclusively by
violence of nature without the interference of any
human agency. It means a natural necessity proceeding from physical causes alone without the
intervention of man. It is an act, event, happening, or occurrence, a disaster and effect due to
natural causes and inevitable accident, or disaster;
a natural and inevitable necessity which implies
entire exclusion of all human agency which operates without interference or aid from man and
which results from natural causes and is in no
sense attributable to human agency. It is an accident which could not have been occasioned by
human agency but proceeded from physical causes
alone. Short v. Kerr, 104 Ind.App. 118, 9 N.E.2d
114, 118.
Practice
Anything done by a court and reduced to writing; a decree, judgment, resolve, rule, order, or
other judicial proceeding. In Scotch law, the
orders and decrees of a court, and in French and
German law, all the records and documents in an
action, are called "acts."
In the civil law, vis major. Any misadventure or casualty is said to be caused by the "act of God" when it
happens by the direct, immediate, and exclusive operation
of the forces of nature, uncontrolled or uninfluenced by
the power of man and without human intervention, and
is of such a character that it could not have been prevented or escaped from by any amount of foresight or
prudence, or by any reasonable degree of care or dilligence, or by the aid of any appliances which the situation
of the party might reasonably require him to use. Inevitable accident, or casualty; any accident produced by any
physical cause which is irresistible, such as lightning,
tempests, perils of the seas, an inundation, or earthquake;
and also the sudden illness or death of persons. People v.
Tubbs, 37 N.Y. 586; Central of Georgia Ry. Co. v. Hall,
124 Ga. 322, 52 S.E. 679, 4 L.R.A.,N.S., 898, 110 Am.St.Rep.
170, 4 Ann.Cas. 128. Story, Bailm. §§ 25, 511; 2 Bl.Comm.
122. Inevitable accident or casualty. Noel Bros. v. Texas
& P. Ry. Co., 16 La.App. 622, 133 So. 830, 832; not preventable by human care, skill, or foresight, but resulting
from natural causes, The Empress of France, D.C.N.Y., 49
F.2d 291. Misfortunes and accidents arising from inevitable necessity which human prudence could not foresee or
prevent. Pleasure Beach Park Co. v. Bridgeport Dredge &
Dock Co., 116 Conn. 496, 165 A. 691, 692. Limited, v.
Lehigh Valley R. Co., D.C.N.Y., 254 F. 351, 353, a landside
in the Panama Canal, Gans S. S. Line v. Wilhelmsen, C.C.
A.N.Y., 275 F. 254, 261, and changes in the styles of wearing apparel, Rosenblatt v. Winstanley, Mo.App., 186 S.W.
542, 543, are not "acts of God" ; otherwise, however, as to
a strike, accompanied with violence and intimidation, see
Southern Cotton Oil Co. v. Louisville & N. R. Co., 15
Ga.App. 751, 84 S.E. 198, 199.
The term is sometimes defined as equivalent to inevitable accident; Neal v. Saunderson, 2 Sm. & M. (Miss.) 572,
41 Am.Dec. 609; Central of Georgia Ry. Co. v. Council
Bros., 36 Ga.App. 573, 137 S.E. 569, 570 (see, however, Cannon v. Hunt, 113 Ga. 509, 38 S.E. 983; Harmony Grove
Telephone Co. v. Potts, 24 Ga.App. 178, 100 S.E. 236, but
incorrectly, as there is a distinction between the two;
Alaska Coast Co. v. Alaska Barge Co., 79 Wash. 216, 140 P.
334, 335. Bolton v. Burnett, 5 Blackf. (Ind.) 222.
See Inevitable Accident; Perils of the Sea.
Scotch Practice
An abbreviation of actor, (proctor or advocate,
especially for a plaintiff or pursuer,) used in
records. "Act. A. Alt. B." an abbreviation of
Actor, A. Alter, B.; that is, for the pursuer or
plaintiff, A., for the defender, B. 1 Broun, 336,
note.
ACT BOOK. In Scotch practice. The minute book
of a court. 1 Swin. 81.
ACT IN PAIS. An act done out of court, and not
a matter of record. A deed or an assurance
transacted between two or more private persons
in the country, that is, according to the old common law, upon the very spot to be transferred, is
matter in pais. 2 Bl.Comm. 294.
ACT OF ATTAINDER. A legislative act, attainting a person. See Attainder.
ACT OF BANKRUPTCY. Any act which renders
a person liable to be proceeded against as a bankrupt, or for which he may be adjudged bankrupt.
These acts are usually defined and classified in statutes
on the subject. Duncan v. Landis, C.C.A.Pa., 106 Fed. 839,
45 C.C.A. 666; In re Chapman, D.C., 99 Fed. 395. Such as:
insolvency or suffering or permitting a creditor to obtain
a preference, Von Segerlund v. Dysart, C.C.A.Cal., 137 F.2d
755, 758, 761; appointment of a receiver, United States v.
Emory, 62 S.Ct. 317, 319, 314 U.S. 423, 86 L.Ed. 315; hin-
43
ACT OF GOVERNMENT
ACT OF GOVERNMENT. The usual name of
Cromwell's Constitution vesting the supreme
power in a Protector and two houses of Parliament, passed March 25, 1657.
guard. McCoy v. Dan/ey, 20 Pa. 91, 57 Am.Dec.
680. Equivalent to "act of God," see supra.
ACT OF SALE. In Louisiana law. An official
record of a sale of property, made by a notary
who writes down the agreement of the parties as
stated by them, and which is then signed by the
parties and attested by witnesses. Hodge v.
Palms, Mich., 117 Fed. 396, 54 C.C.A. 570.
ACT OF GRACE. In Scotch law. A term applied to the act of 1696, c. 32, by which it was provided that where a person imprisoned for a civil
debt is so poor that he cannot aliment [maintain]
himself, and will make oath to that effect, it shall
be in the power of the magistrates to cause the
creditor by whom he is incarcerated to provide
an aliment for him, or consent to his liberation;
which, if the creditor delay to do for 10 days, the
magistrate is authorized to set the debtor at
liberty. Bell. The term is often used to designate
a general act of parliament, originating with the
crown, such as has often been passed at the commencement of a new reign, or the coming of age
or marriage of a sovereign, or at the close of a
period of civil troubles, declaring pardon or amnesty to numerous offenders. Abbott.
ACT OF SETTLEMENT. The statute (12 & 13
Wm. III, c. 2) limiting the crown to the Princess
Sophia of Hanover, and to the heirs of her body
being Protestants. 1 Bla.Com. 128; 2 Steph.Com.
290. One clause of it made the tenure of judges'
office for life or good behavior independent of the
crown.
ACT OF STATE. An act done by the sovereign
power of a country, or by its delegate, within the
limits of the power vested in him. An act of
state cannot be questioned or made the subject of
legal proceedings in a court of law.
ACT OF HONOR. When a bill has been protested,
and a third person wishes to take it up, or accept
it, for honor of one or more of the parties, the
notary draws up an instrument, . evidencing the
transaction, called by this name.
ACT OF SUPREMACY. An act of 26 Hen. VIII.
c. 1, and also 1 Eliz. c. 1, which recognized the
king as the only supreme head on earth of the
Church of England having full power to correct
all errors, heresies, abuses, offenses, contempts
and enormities. The oath, taken under the act,
denies to the Pope any other authority than that
of the Bishop of Rome.
ACT OF INDEMNITY. A statute by which those
who have committed illegal acts which subject
them to penalties are protected from the consequences of such acts.
ACT OF UNIFORMITY. In English law. The
statute of 13 & 14 Car. II. c. 4, enacting that the
book of common prayer, as then recently revised,
should be used in every parish church and other
place of public worship, and otherwise ordaining
a uniformity in religious services, etc. 3 Steph.
Comm. 104.
ACT OF INSOLVENCY. Within the meaning of
the national currency act, an act which shows a
bank to be insolvent, such as nonpayment of its
circulating notes, bills of exchange, or certificates
of deposit; failure to make good the impairment
of capital, or to keep good its surplus or reserve;
in fact, any act which shows that the bank is
unable to meet its liabilities as they mature, or to
perform those duties which the law imposes for
the purpose of sustaining its credit. Hayden v.
Chemical Nat. Bank, C.C.A.N.Y., 84 Fed. 874, 28
C.C.A. 548; Kullman & Co. v. Woolley, C.C.A.
Miss., 83 F.2d 129, 132; Garvin v. Chadwick Realty Corporation, 212 Ind. 499, 9 N.E.2d 268, 271.
ACT OF UNION. The statutes uniting England
and Wales, 27 Hen. VIII, c. 26, confirmed by 34 &
35 Hen. VIII, c. 26; England and Scotland, 5 Anne.
c. 8; Great Britain and Ireland, 39 & 40 Geo. III,
c. 67. 1 Bl.Comm. 97.
The act uniting the three lower counties (now
Delaware) to the province of Pennsylvania, passed
at Upland, Dec. 7, 1682, is so called.
ACT OF LAW. The operation of fixed legal rules
upon given facts or occurrences, producing consequences independent of the design or will of the
parties concerned; as distinguished from "act of
parties." Also an act performed by judicial authority which prevents or precludes a party from
fulfilling a contract or other engagement. Metcalf v. State, 57 Okl. 64, 156 P. 305, 306, L.R.A.
1916E, 595.
ACT ON PETITION. A form of summary proceeding formerly in use in the high court of
admiralty, in England, in which the parties stated
their respective cases briefly, and supported their
statements by affidavit. 2 Dod.Adm. 174, 184; 1
Hagg.Adm. 1, note.
ACTA DIURNA. Lat. In the Roman law. Daily
acts or chronicles; the public registers or journals
of the daily proceedings of the senate, assemblies
of the people, courts of justice, etc. Supposed to
have resembled a modern newspaper. Brande.
Thus: I do not find the thing published in the
acta diurna (daily records of affairs) ; Tacitus,
Ann. 3, 3; Ainsworth, Lex.; Smith, Lex.
ACT OF PARLIAMENT. A statute, law, or edict,
made by the British sovereign, with the advice
and consent of the lords spiritual and temporal,
and the commons, in parliament assembled. Acts
of parliament form the leges scriptce, e., the
written laws of the kingdom.
ACTA EXTERIORA INDICANT INTERIORA
SECRETA. 8 Coke, 146b. External acts indicate
undisclosed thoughts.
ACT OF PROVIDENCE. An accident against
which ordinary skill and foresight could not
44
ACTIO COMMUNI
ACTA IN UNO JUDICIO NON PROBANT IN
ALIO NISI INTER EASDEM PERSONAS. Things
done in one action cannot be taken as evidence in
another, unless it be between the same parties.
Tray.Lat.Max. U.
ACTA PUBLICA. Lat. Things of general knowledge and concern; matters transacted before certain public officers. Calvinus, Lex.
ACTE. In French law, denotes a document, or
formal, solemn writing, embodying a legal attestation that something has been done, corresponding
to one sense or use of the English word "act."
Actes de naissance are the certificates of birth, and must
contain the day, hour, and place of birth, together with
the sex and intended christian name of the child, and the
names of the parents and of the witnesses. Actes de
mariage are the marriage certificates, and contain names,
professions, ages, and places of birth and domicile of the
two persons marrying, and of their parents ; also the consent of these latter, and the mutual agreements of the
intended husband and wife to take each other for better
and worse, together with the usual attestations. Actes de
décês are the certificates of death, which are required to
be drawn up before any one may be buried. Les actes de
l'etat civil are public documents. Brown.
ACTE AUTHENTIQUE. A deed executed with
certain prescribed formalities, in the presence of
a notary, mayor, greffier, huissier, or other functionary qualified to act in the place in which it is
drawn up. Argles, Fr.Merc.Law, 50.
ACTE DE FRANCISATION. The certificate of
registration of a ship, by virtue of which its
French nationality is established.
ACTE D'HERITIER. Act of inheritance. Any action or fact on the part of an heir which manifests his intention to accept the succession; the
acceptance may be express or tacit. Duverger.
ACTE EXTRAJUDICIAIRE. A document served
by a huissier, at the demand of one party upon
another party, without legal proceedings.
ACTING. The word "acting" means doing duty
for another; officiating; holding a temporary
rank or position or performing services temporarily; as, an acting captain, manager, president.
Pellecchia v. Mattia, 121 N.J.L. 21, 1 A.2d 28. Performing; operating. See Meyer v. Johnston, 64
Ala. 603, 665.
noted that this term means both the proceeding
to enforce a right in a court and the right itself
which is sought to be enforced.
The first sense here given is the older one. Justinian,
following Celsus, gives the well-known definition : Actio
nihil aliud est quam jus persequendi in judicio quod sibi
debetur, which may be thus rendered : An action is simply
the right to enforce one's demands in a court of law. See
Pollock, Expansion of C. L. 92.
ACTIO AD EXHIBENDUM. An action for the
purpose of compelling a defendant to exhibit a
thing or title in his power. It was preparatory to
another action, which was always a real action
in the sense of the Roman law; that is, for the
recovery of a thing, whether it was movable or
immovable. Merl.Quest.tome i, 84.
ACTIO JESTIMATORIA; ACTIO QUANTI MINOR'S. Two names of an action which lay in
behalf of a buyer to reduce the contract price
proportionately to the defects of the object, not
to cancel the sale; the judex had power, however,
to cancel the sale. Hunter, Rom.Law, 332, 505.
ACTIO ARBITRARIA. Action depending on the
discretion of the judge. In this, unless defendant
would make amends to plaintiff as dictated by the
judge in his discretion, he was liable to be condemned. Hunter, Rom.Law, 825, 987.
ACTIO BONE FIDEI. (Lat.: An action of good
faith.) A class of actions in which the judge
might at the trial ex officio, take into account any
equitable circumstances that were presented to
him affecting either of the parties to the action.
1 Spence, Eq.Jur. 210, 218.
ACTIO CALUMNI1E. An action to restrain defendant from prosecuting a groundless proceeding
or trumped-up charge against plaintiff. Hunter,
Rom.Law, 859, 1020. An action for malicious
prosecution. So.Afr.Leg.Dict.
ACTIO CIVILIS. In the common law. A civil action, as distinguished from a criminal action.
Bracton divides personal actions into cri?rtinalia et
civilia, according as they grow out of crimes or contracts.
Bract. fol. 101b. Actiones civiles are those forms of remedies which were established under the rigid system of the
civil law, the jus civilis. See Actio Honoraria.
ACTIO COMMODATI. Included several actions
appropriate to enforce the obligations of a borrower or a lender. Hunter, Rom.Law, 305.
An acting trustee is one who takes upon himself to perform some or all of the trusts mentioned in a will. Sharp
v. Sharp, 2 Barn. & Ald. 415.
ACTIO COMMODATI CONTRARIA. An action
by the borrower against the lender, to compel the
execution of the contract. Poth. Pre't a Usage, n.
75.
ACTING OFFICER. The phrase "acting officer"
is used to designate, not an appointed incumbent,
but merely a locum tenens, who is performing the
duties of an office to which he himself does not
claim title. State ex rel. Gossett v. O'Grady, 137
Neb. 824, 291 N.W. 497, 501; State Bank of Williams v. Gish, 167 Iowa, 526, 149 N.W. 600, 601.
ACTIO COMMODATI DIRECTA. An action by a
lender against a borrower, the principal object of
which is to obtain a restitution of the thing lent.
Poth. Prét a Usage, nn. 65, 68.
"Acting Supervising Architect." Fraser v. United States,
16 Ct.C1. 514. An acting executor is one who assumes to
act as executor for a decedent, not being the executor
legally appointed or the executor in fact. Morse v. Allen,
99 Mich. 303, 58 N.W. 327.
ACTIO COMMUNI DIVIDUNDO. An action to
procure a judicial division of joint property. Hunter, Rom.Law, 194. It was analogous in its object
to proceedings for partition in modern law.
ACTIO. Lat. In the civil law. An action or
suit; a right or cause of action. It should be
45
ACTIO CONDICTIO
ACTIO CONDICTIO INDEBITATI. An action by
which the plaintiff recovers the amount of a sum
of money or other thing he paid by mistake. Poth.
Promutuum, n. 140; Merl. Repert.
ACTIO EMPTI. An action employed in behalf of
a buyer to compel a seller to perform his obligations or pay compensation; also to enforce any
special agreements by him, embodied in a contract of sale. Hunter, Rom.Law, 332, 505.
ACTIO CONFESSORIA. An affirmative petitory
action for the recognition and enforcement of a
servitude. So called because based on plaintiff's
affirmative allegation of a right in defendant's
land. Distinguished from an actio negatoria,
which was brought to repel a claim of defendant
to a servitude in plaintiff's land. Mackeld. Rom.
Law, § 324.
ACTIO EX CONDUCTO. An action which the
bailor of a thing for hire may bring against the
bailee, in order to compel him to redeliver the
thing hired.
ACTIO EX CONTRACTU. In the civil and common law. An action of contract; an action arising out of, or founded on, contract. 3 Bl.Comm.
117.
ACTIO CONTRARIO. Counter action or cross
action.
ACTIO EX DELICTO. In the civil and common
law. An action of tort; an action arising out of
fault, misconduct, or malfeasance. Inst. 4, 6, 15;
3 Bl.Comm. 117. Ex male ficio is the more common expression of the civil law; which is adopted
by Bracton. Inst. 4, 6, 1; Bract. fols. 102, 103.
ACTIO CRIMINALIS. Criminal action.
ACTIO DAMNI INJURIA. The name of a general class of actions for damages, including many
species of suits for losses caused by wrongful or
negligent acts. The term is about equivalent to
our "action for damages."
ACTIO DE DOLO MALO. An action of fraud;
an action which lay for a defrauded person against
the defrauder and his heirs, who had been enriched by the fraud, to obtain the restitution of
the thing of which he had been fraudulently deprived, with all its accessions (cum omni causa;)
or, where this was not practicable, for compensation in damages. Mackeld.Rom.Law, § 227.
ACTIO DE PECULIO. An action concerning or
against the peculium, or separate property of a
party.
ACTIO DE PECUNIA CONSTITUTA. An action
for money engaged to be paid ; an action which
lay against any person who had engaged to pay
money for himself, or for another without any
formal stipulation. Inst. 4, 6, 9; Dig. 13, 5; Cod.
4, 18.
ACTIO DE TIGNO JUNCTO. An action by the
the owner of material built by another into his
building.
If so used in good faith double their value could be
recovered; if in bad faith, the owner could recover suitable damage for the wrong, and recover the property when
the building came down. So. Afr. Leg. Diet.
ACTIO DEPOSITI CONTRARIA. An action which
the depositary has against the depositor, to compel him to fulfil his engagement towards him.
Poth. Du Depot, n. 69.
ACTIO DEPOSIT! DIRECTA. An action which is
brought by the depositor against the depositary,
in order to get back the thing deposited. Poth.
Du Depot, n. 60.
ACTIO EX LOCATO. An action upon letting; an
action which the person who let a thing for hire
to another might have against the hirer. Dig. 19,
2; Cod. 4, 65.
ACTIO EX STIPULATU. An action brought to
enforce a stipulation.
ACTIO EXERCITORIA. An action against the
exercitor or employer of a vessel.
ACTIO FAMILIZE ERCISCUNDIE. An action for
the partition of an inheritance. Inst. 4, 6, 20; Id.
4, 17, 4. Called, by Bracton and Fleta, a mixed action, and classed among actions arising ex quasi
contractu. Brac. fol. 10013; Bract. fols. 443 b, 444;
Fleta, lib. 2, c. 60, § 1.
ACTIO FURTI. An action of theft; an action
founded upon theft. Inst. 4, 1, 13-17; Bract. fol.
444. This could be brought only for the penalty
attached to the offense, and not to recover the
thing stolen, for which other actions were provided. Inst. 4, 1, 19. An appeal of larceny. The
old process by which a thief can be pursued and
the goods vindicated. 2 Holdsw.Hist.Eng.L. 202.
ACTIO HONORARIA. An honorary, or pr ae torian
action. Dig. 44, 7, 25, 35. Actiones honorarice are
those forms of remedies which were gradually
introduced by the pr ae tors and diles, by virtue
of their equitable powers, in order to prevent the
failure of justice which too often resulted from
the employment of the actiones civiles. These
were found so beneficial in practice that they
eventually supplanted the old remedies, of which
in the time of Justinian hardly a trace remained.
Mackeldey, Civ.L. § 194; 5 Savigny, System.
ACTIO DIRECTA. A direct action; an action
ACTIO IN FACTUM. In action adapted to the
particular case, having an analogy to some actio
in jus, the latter being founded on some subsisting
acknowledged law. 1 Spence, Eq.Jur. 212. The
origin of these actions is similar to that of actions
on the case at common law.
founded on strict law, and conducted according to
fixed forms; an action founded on certain legal
obligations which from their origin were accurately defined and recognized as actionable. See Actio
Utilis.
46
ACTIO PCENALIS
ACTIO IN PERSONAM.
ties to an engagement, whereby one person undertook the transaction of business for another.
Admiralty Law
An action directed against the particular person
who is to be charged with the liability. It is distinguished from an actio in rem, which is a suit
directed against a specific thing (as a vessel) irrespective of the ownership of it, to enforce a
claim or lien upon it, or to obtain, out of the
thing or out of the proceeds of its sale, satisfaction for an injury alleged by the claimant.
ACTIO NON. In pleading. The Latin name of
that part of a special plea which follows next
after the statement of appearance and defense,
and declares that the plaintiff "ought not to have
or maintain his aforesaid action thereof against"
the defendant (in Latin, actionem non habere
debet). 1 Chit.Plead. 531; 2 id. 421; Stephens,
Plead. 394.
Civil Law
An action against the person, founded on a personal liability; an action seeking redress for the
violation of a jus in personam or right available
against a particular individual.
ACTIO IN REM. In the civil and common law.
An action for a thing; an action for the recovery
of a thing possessed by another. Inst. 4, 6, 1. An
action for the enforcement of a right (or for
redress for its invasion) which was originally
available against all the world, and not in any
special sense against the individual sued, until he
violated it. See In Rem.
ACTIO NON ACCREVIT INFRA SEX ANNOS.
The name of the plea of the statute of limitations,
when the defendant alleges that the plaintiff's action has not accrued within six years.
ACTIO NON DATUR NON DAMNIFICATO. An
action is not given to one who is not injured.
Jenk.Cent. 69.
ACTIO NON FACIT REUM, NISI MENS SIT
REA. An act does not make one guilty, unless
the intention be bad. Lofft, 37.
ACTIO NON ULTERIUS. In English pleading.
A name given to the distinctive clause in the plea
to the further maintenance of the action, introduced in place of the plea puis darrein continuance; the averment being that the plaintiff ought
not further (ulterius) to have or maintain his action. Steph.Pl. 64, 65, 401.
ACTIO JUDICATI. An action instituted, after
four months had elapsed after the rendition of
judgment, in which the judge issued his warrant
to seize, first, the movables, which were sold
within eight days afterwards; and then the immovables, which were delivered in pledge to the
creditors, or put under the care of a curator, and
if, at the end of two months, the debt was not
paid, the land was sold. Dig. 42, 1; Cod. 8, 34.
ACTIO NOXALIS. A noxal action; an action
which lay against a master for a crime committed or injury done by his slave; and in which the
master had the alternative either to pay for the
damage done or to deliver up the slave to the complaining party. Inst. 4, 8, pr.; Heinecc.Elem. lib.
4, tit. 8. So called from noxa, the offense or injury committed. Inst. 4, 8, 1.
According to some authorities, if the defendant then
utterly denied the rendition of the former judgment, the
plaintiff was driven to a new action, conducted like any
other action, which was called actio judicati, and which
had for its object the determination of the question
whether such a judgment had been rendered. The exact
meaning of the term is by no means clear. See Savigny,
Syst. 305, 411; 3 Ortolan, Just. § 2033.
ACTIO PERPETUA. An action without limitation period.
ACTIO PERSONALIS. In the civil and common
law. A personal action.
ACTIO LEGIS AQUILINE. An action under the
Aquilian law; an action to recover damages for
maliciously or injuriously killing or wounding the
slave or beast of another, or injuring in any way
a thing belonging to another. Otherwise called
damni injurice actio.
The ordinary term for this kind of action in the civil
law is actio in personam, (q. v.,) the word personalis
being of only occasional occurrence. Inst. 4, 6, 8, in tit.;
Id. 4, 11, pr. 1. Bracton, however, uses it freely, and
hence the personal action of the common law. Bract. fols.
102a, 159b. See Action.
ACTIO MANDATI. Included actions to enforce
contracts of mandate or obligations arising out
of them. Hunter, Rom.Law, 316.
ACTIO PERSONALIS MORITUR CUM PERSONA. A personal right of action dies with the
person. Noy, Max. 14.
ACTIO MIXTA. A mixed action; an action
brought for the recovery of a thing, or compensation for damages, and also for the payment of a
penalty; partaking of the nature both of an actio
in rem and in personam. Inst. 4, 6, 16, 18, 19, 20;
Mackeld.Rom.Law, § 209.
The maxim was originally applied to almost every form
of ac t ion, whether arising out of contract or tort, but the
common law was modified by the Statute of 4 Edward the
III. Momand v. Twentieth-Century Fox Film Corporation,
D.C.Okl., 37 F.Supp. 649, 652.
ACTIO PIGNORATITIA. An action of pledge;
an action founded on the contract of pledge
(pignus). Dig. 13, 7; Cod. 4, 24.
ACTIO NEGATORIA (or NEGATIVA). An action brought to repel a claim of the defendant to a
servitude in the plaintiff's land. Mackeld.Rom.
Law, § 324. See Actio Confessoria.
ACTIO PCENALIS. Called also actio ex delicto.
An action in which a penalty was recovered of
the delinquent.
ACTIO NEGOTIORUM GESTORUM. Included actions between principal and agent and other par-
Actiones pcenales and actiones mixtce comprehended
cases of injuries, for which the civil law permitted redress
47
ACTIO 1)(ENALIS
by private action, but which modern civilization universally regards as crimes; that is, offenses against society
at large, and punished by proceedings in the name of the
state alone. Thus, theft, receiving stolen goods, robbery,
malicious mischief, and the murder or negligent homicide
of a slave (in which case an injury to property was
involved), gave rise to private actions for damages against
the delinquent. Inst. 4, 1. De obligationibus quce ex
delicto nascuntur; id. 2. De bonis vi raptis; id. 3. De
lege Aquilia. And see Mackeldey, Civ.L. § 196; 5 Savigny,
System, § 210.
Actio pcenalis in haredem non datur, nisi forte
ex damno locupletior hares factus sit. A penal
action is not given against an heir, unless, indeed, such heir is benefited by the wrong.
ACTIO PRIEJUDICIALIS. A preliminary or preparatory action. An action instituted for the determination of some preliminary matter on which
other litigated matters depend, or for the determination of some point or question arising in another or principal action; and so called from its
being determined before, (prius, or prce judicari.)
ACTIO PRIESCRIPTIS VERBIS. A form of action which derived its force from continued usage
or the responsa prudentium, and was founded on
the unwritten law. 1 Spence, Eq.Jur. 212. The
distinction between this action and an actio in
factum is said to be, that the latter was founded
not on usage or the unwritten law, but by analogy
to or on the equity of some subsisting law; 1
Spence, Eq.Jur. 212.
ACTIO PRIETORIA. A pr ae torian action; one
introduced by the pr a tor, as distinguished from
the more ancient actio civilis, (q. v.) Inst. 4, 6, 3;
Mackeld.Rom.Law, § 207.
ACTIO PRO SOCIO. An action of partnership.
An action brought by one partner against his
associates to compel them to carry out the terms
of the partnership agreement. Story, Partn., Bennett ed. § 352; Pothier, Contr. de Societe, n. 34.
ACTIO PUBLICIANA. An action which lay for
one who had lost a thing of which he had bona
fide obtained possession, before he had gained a
property in it, in order to have it restored, under
color that he had obtained a property in it by
prescription. Inst. 4, 6, 4; Heinecc. Elem. lib. 4,
tit. 6, § 1131; Halifax, Anal. b. 3, c. 1, n. 9. It was
an honorary action, and derived its name from the
pr ae tor Publicius, by whose edict it was first given.
Inst. 4, 6, 4.
ACTIO REALIS. A real action. The proper term
in the civil law was rei vindicatio. Inst. 4, 6, 3.
ACTIO REDHIBITORIA. An action to cancel a
sale in consequence of defects in the thing sold.
It was prosecuted to compel complete restitution to the
seller of the thing sold, with its produce and accessories,
and to give the buyer .back the price, with interest, as an
equivalent for the restitution of the produce. Hunter,
Rom.Law, 332. See Redhibitory Action.
ACTIO RERUM AMOTARUM. An action for
things removed; an action which, in cases of
divorce, lay for a husband against a wife, to recover things carried away by the latter, in contemplation of such divorce. Dig. 25, 2; Id. 25, 2;
25, 30. It also lay for the wife against the husband in such cases. Dig. 25, 2, 7, 11; Cod. 5, 21.
ACTIO RESCISSORIA. An action for restoring
plaintiff to a right or title which he has lost by
prescription, in a case where the equities are such
that he should be relieved from the operation of
the prescription. Mackeld.Rom.Law, § 226.
An action to rescind a prescriptive title by one
who was entitled to exemption from the prescription law, as a minor, etc.
ACTIO SERVIANA. An action which lay for the
lessor of a farm, or rural estate, to recover the
goods of the lessee or farmer, which were pledged
or bound for the rent. Inst. 4, 6, 7.
ACTIO STRICTI JURIS. An action of strict
right. The class of civil law personal actions,
which were adjudged only by the strict law, and
in which the judge was limited to the precise
language of the formula, and had no discretionary power to regard the bona fides of the transaction. See Inst. 4, 6, 28; Gaius, iii. 137; Mackeld.
Rom.Law, § 210; 1 Spence, Eq.Jur. 218.
ACTIO TEMPORALIS. An action which must
be brought within a limited time. See Limitation.
ACTIO TUTELIE. Action founded on the duties
or obligations arising on the relation analogous to
that of guardian and ward.
ACTIO UTILIS. A beneficial action or equitable
action. An action founded on equity instead of
strict law, and available for those who had equitable rights or the beneficial ownership of property.
Actions are divided into actiones directce or utiles. The
former are founded on certain legal obligations which from
their origin were accurately defined and recognized as actionable. The latter were formed analogically in imitation
of the former. They were permitted in legal obligations
for which the actiones directce were not originally intended, but which resembled the legal obligations which formed
the basis of the direct action. Mackeld.Rom.Law, § 207.
ACTIO QUIELIBET IT SUA VIA. Every action
proceeds in its own way. Jenk.Cent. 77.
ACTIO QUOD JUSSU. An action given against
a master, founded on some business done by his
slave, acting under his order, ( jussu.) Inst. 4, 7,
1; Dig. 15, 4; Cod. 4, 26.
ACTIO VENDITI. An action employed in behalf
of a seller, to compel a buyer to pay the price,
or perform any special obligations embodied in
a contract of sale. Hunter, Rom.Law, 332.
ACTIO QUOD METUS CAUSA. An action granted to one who had been compelled by unlawful
force, or fear (metus causa) that was not groundless, (metus probabilis or Justus,) to deliver, sell,
or promise a thing to another. Bract. fol. 103b;
Mackeld.Rom.Law, § 226.
ACTIO VI BONORUM RAPTORUM. An action
for goods taken by force; a species of mixed action, which lay for a party whose goods or movables (bona) had been taken from him by force,
48
ACTION
(vi,) to recover the things so taken, together with
a penalty of triple the value. Inst. 4, 2; Inst. 4,
6, 19. Bracton describes it as lying de rebus mobilibus vi ablatis sive robbatis, (for movable
things taken away by force, or robbed.) Brae.
fol. 103b.
Dist. No. 2 of Richardson County, 96 Neb. 169, 147 N.W.
205, 206; condemnation, State v. Superior Court for Ferry
County, 145 Wash. 576, 261 P. 110, 111.
ACTIO VULGARIS. A legal action; a common
action. Sometimes used for actio directa. Mackeld.Rom.Law, § 207.
Suit Distinguished
Strictly applied, action does not usually refer
to chancery practice. City of Beckley v. Craighead, 125 W.Va. 484, 24 S.E.2d 908, 911. But
terms "action" and "suit" are now nearly, if not
entirely, synonymous. (3 Bl.Comm. 3, 116, et passim.) Elmo v. James, Tex.Civ.App., 282 S.W. 835,
839; Coleman v. Los Angeles County, 180 Cal.
714, 182 P. 440. Or, if there be a distinction, it
is that the term "action" is generally confined to
proceedings in a court of law, while "suit" is
equally applied to prosecutions at law or in equity.
McBride v. University Club, 112 Ohio St. 69, 146
N.E. 804, 805; Guarantee Trust & Banking Co. v.
Dickson, 148 Ga. 311, 96 S.E. 561, 562; Niantic
Mills Co. v. Riverside & 0. Mills, 19 R.I. 34, 31 A.
432; Ulshafer v. Stewart, 71 Pa. 170. Formerly,
however, an action was considered as terminating with the giving of judgment, the execution
forming no part of it. (Litt. § 504; Co.Litt. 289a.)
A suit included the execution. (Litt. § 291a.) So,
an action is termed by Lord Coke, "the right of
a suit." (2 Inst. 40.) Burrill.
ACTION. Conduct; behavior; something done;
the condition of acting; an act or series of acts.
French Commercial Law
Stock in a company, or shares in a corporation.
Practice
The legal and formal demand of one's right
from another person or party made and insisted
on in a court of justice. Smith-Webster Co. v.
John, C.C.A.Pa., 259 F. 549, 551; Dinsmore v.
Barker, 61 Utah, 332, 212 P. 1109; Shaw v. Lone
Star Building & Loan Ass'n, Tex.Civ.App., 40 S.W.
2d 968, 969. Pursuit of right in court, without
regard to form of procedure. Ginzberg v. Wyman, 272 Mass. 499, 172 N.E. 614, 615. Form of
suit given by law for recovery of that which is
one's due. Co.Litt. 284b, 285a; Peterson v. A.
Guthrie & Co., D.C.Wash., 3 F.Supp. 136, 138.
Judicial means of enforcing a right. Code Ga.
1882, § 3151 (Civ.Code 1926, § 5507). Judicial remedy for the enforcement or protection of a right.
White v. White, 98 Ind.App. 587, 186 N.E. 349, 351.
An ordinary proceeding in a court of justice by
which one party prosecutes another for the enforcement or protection of a right, the redress or
prevention of a wrong, or the punishment of a
public offense. Code Civ.Proc.S.D.1903, § 12
(Comp.Laws 1929, § 2091) ; Missionary Soc. v. Ely,
47 N.E. 537, 56 Ohio St. 405.
Scotch Law
A suit or judicial proceeding.
Types of Actions
Actions are called, in common-law practice, ex
contractu when they are founded on a contract;
ex delicto when they arise out of a tort. Nelson
v. Great Northern R. Co., 28 Mont. 297, 72 Pac.
642; Van Oss v. Synon, 85 Wis. 661, 56 N.W. 190.
If a cause of action arises from a breach of promise, the
action is "ex contractu," and, if it arises from breach of
duty growing out of contract, it is "ex delicto." Tort or
trespass is none the less such because it incidentally involves breach of contract. Berning v. Colodny & Colodny,
103 Cal.App. 188, 284 P. 496, 498.
Cross-action, White v. St. Louis Post Offices Corporation,
348 Mo. 961, 156 S.W.2d 695, 698, and counterclaim, Webster
v. Freeman, 27 Cal.App.2d 5, 80 P.2d 497, 499, are actions
but not set off, Kress v. Central Trust Co. of Rochester,
283 N.Y.S. 467, 471, 246 App. Div. 76.
It includes all the formal proceedings in a court of
justice attendant upon the demand of a right made by one
person of another in such court, including an adjudication
upon the right and its enforcement or denial by the court.
Proceedings held actions : Disbarment, In re Wilcox,
90 Kan. 646, 135 P. 995; probating will, Simpson v. Simpson, 273 Ill. 90, 112 N.E. 276, 277; will contest, Byrne v.
Byrne, Mo.Sup., 181 S.W. 391, 392; workmen's compensation, Pigeon v. Employers' Liability Assur. Corporation,
216 Mass. 51, 102 N.E. 932, 935, Ann.Cas.1915A, 737; criminal prosecution, Mason v. U. S., C.C.A.I11., 1 F.2d 279, 280;
mandamus, People v. Lueders, 287 Ill. 107, 122 N.E. 374,
375; naturalization, In re Fordiani, 98 Conn. 435, 120 A.
338, 341.
Proceedings held not actions : attachment, State v. Superior Court of Spokane County, 110 Wash. 49, 187 P. 708;
arbitration, Temple v. Riverland Co., Tex.Civ.App., 228 S.
W. 605, 609; criminal prosecution, U. S. v. Cleveland, D.C.
Ala., 281 F. 249, 253; Wynn v. Commonwealth, 198 Ky.
644, 249 S.W. 783, 784; writ of citation, McClelland v.
State, 101 Ohio St. 42, 127 N.E. 409, 410; certiorari, Campbell, v. Common Council of City of Watertown, 46 S.D. 574,
195 N.W. 442; mandamus, De Leyer v. Britt, 212 N.Y. 565,
106 N.E. 57; child's support, Head v. Fuller, 122 Me. 15,
118 A. 714, 715; drainage, Richardson County v. Drainage
Black's Law Dictionary Revised 4th Ed.-4
As to class or representative actions. See Class
Or Representative Action.
As to the distinction between a revocatory action and an action in simulation, see Chapman v.
Irwin, 157 La. 920, 103 So. 263, 265.
Civil actions are such as lie in behalf of persons to enforce their rights or obtain redress of wrongs in their relation to individuals.
Common law actions are such as will lie, on the particular facts, at common law, without the aid of a statute.
Criminal actions are such as are instituted by the sovereign power, for the purpose of punishing or preventing
offenses against the public.
Local action. See Local Action.
Mixed actions partake of twofold nature of real and
personal actions, having for their object the demand and
restitution of real property and also personal damages
for a wrong sustained. 3 Bl.Comm. 118; Hall v. Decker,
48 Me. 257. Mixed actions are those which are brought
for the specific recovery of lands, like real actions, but
comprise, joined with this claim, one for damages in respect of such property; such as the action of waste, where,
in addition to the recovery of the place wasted, the demandant claims damages; the writ of entry, in which, by
statute, a demand of mesne profits may be joined; and
49
ACTION
dower, in which a claim for detention may be included. 48
Me. 255. In the civil law, an action in which some specific thing was demanded, and also some personal obligation claimed to be performed; or, in other words, an action which proceeded both in rem and in personam. Inst.
4, 6, 20.
ACTION EX CONTRACTU. An action for breach
of promise set forth in a contract, express or
i mplied. Bristol v. Sun Vacuum Stores, 181
Misc. 522, 42 N.Y.S.2d 501, 504; McCullough v.
The American Workmen, 200 S.C. 84, 20 S.E.2d 640,
644.
Penal actions are such as are brougnt, either by the state
or by an individual under permission of a statute, to enforce a penalty imposed by law for the commission of a
prohibited act.
ACTION EX DELICTO. An action arising from
a breach of duty growing out of contract. Berning v. Colodny & Colodny, 103 Cal.App. 188, 284 P.
496, 498; Federal Life Ins. Co. v. Maxam, 70
Ind.App. 266, 117 N.E. 801, 806.
Personal action. In civil law, an action in personam. It
seeks to enforce an obligation imposed on the defendant
by his contract or delict; that is, it is the contention that
he is bound to transfer some dominion or to perform some
service or to repair some loss. Gaius, bk. 4, § 2. In common law. An action brought for the recovery of some debt
or for damages for some personal injury, in contradistinction to the old real actions, which related to real property
only. See 3 Bl.Comm. 117. Boyd v. Cronan, 71 Me. 286;
Doe v. Waterloo Min. Co., C.C.Cal., 43 F. 219; Osborn v.
Fall River, 140 Mass. 508, 5 N.E. 483. An action which can
be brought only by the person himself who is injured, and
not by his representatives.
ACTION FOR ACCOUNTING. Action in equity
based on inadequacy of legal remedy and particularly applicable to mutual and complicated accounts and where confidential or fiduciary relationship exists. Dahlberg v. Fisse, 328 Mo. 213,
40 S.W.2d 606, 609. To adjust mutual accounts
and to strike a balance. Cline v. McKee, 186 Okl.
366, 98 P.2d 25, 27.
Popular actions, in English usage, are those actions
which are given upon the breach of a penal statute, and
which any man that will may sue on account of the king
and himself, as the statute allows and the case requires.
Because the action is not given to one especially, but generally to any that will prosecute, it is called "action popular ;" and, from the words used in the process, (qui tam
pro domino rege sequitur quam pro se ipso, who sues as
well for the king as for himself,) it is called a qui tam
action. Tomlins.
ACTION FOR MONEY HAD AND RECEIVED.
One in assumpsit based upon promise to repay implied by law, and in respect of limitation is a
stated or liquidated account. Mutual Building &
Loan Ass'n v. Watson, 226 Ala. 526, 147 So. 817,
818.
Where one person has received money or its equivalent
under such circumstances that in equity and good conscience he ought not to retain it and in justice it belongs
to another. Interstate Life & Accident Co. v. Cook, 19
Tenn.App. 290, 86 S.W.2d 887, 891.
Real actions. At common law, one brought for the specific recovery of lands, tenements, or hereditaments.
Steph.Pl. 3; Crocker v. Black, 16 Mass. 448; Hall v. Decker, 48 Me. 256; Doe v. Waterloo Min. Co., C.C.Cal., 43 F.
220; Mathews v. Sniggs, 75 Okl. 108, 182 P. 703, 708. They
are droitural when they are based upon the right of property, and possessory when based upon the right of possession. They are either writs of right ; writs of entry upon
disseisin (which lie in the per, the per et cui, or the post),
intrusion, or alienation; writs ancestral possessory, as
mort d'ancestor, aiel, besaiel, cossinage, or nuper obiit.
Com.Dig. Actions ( D 2). The former class was divided
into droitural, founded upon demandant's own seisin, and
ancestral droitural upon the demandant's claim in respect
of a mere right descended to him from an ancestor. Possessory actions were divided in the same way—as to the
demandant's own seisin and as to that of his ancestor.
Among the civilians, real actions, otherwise called "vindications," were those in which a man demanded something
that was his own. They were founded on doiminion, or
jus in re. The real actions of the Roman law were not,
like the real actions of the common law, confined to real
estate, but they included personal, as well as real, property. Wharton.
ACTION FOR POINDING. An action by a creditor to obtain a sequestration of the rents of land
and the goods of his debtor for the satisfaction of
the debt, or to enforce a distress.
ACTION IN PERSONAM, IN REM. See In Personam, In Rem.
ACTION OF ABSTRACTED MULTURES. An action for multures or tolls against those who are
thirled to a mill, i. e., bound to grind their corn
at a certain mill, and fail to do so. Bell.
ACTION OF ADHERENCE. See Adherence.
ACTION OF A WRIT. A phrase used when a defendant pleads some matter by which he shows
that the plaintiff had no cause to have the writ
sued upon, although it may be that he is entitled
to another writ or action for the same matter.
Cowell.
Statutory actions are such as can only be based upon the
particular statutes creating them.
Transitory actions are those founded upon a cause of action not necessarily referring to or arising in any particular locality. Their characteristic feature is that the right
of action follows the person of the defentlant. Brown v.
Brown, 155 Tenn. ;,30, 296 S.W. 356, 358. Actions are
"transitory" when the transactions relied on might have
taken place anywhere, and are "local" when they could
not occur except in some particular place ; the distinction
being in the nature of the subject of the injury, and not
in the means used or the place at which the cause of action
arises. Brady v. Brady, 161 N.C. 324, 77 S.E. 235, 236, 44
L.R.A.,N.S., 279; Taylor v. Sommers Bros. Match Co., 35
Idaho, 30, 204 P. 472, 474, 42 A.L.R. 189. The test of
whether an action is local or transitory is whether the injury is done to a subject-matter which, in its nature, could
not arise beyond the locality of its situation, in contradistinction to the subject causing the injury. Mattix v.
Swepston; 127 Tenn. 693, 155 S.W. 928, 929. Actions triable
where defendant resides are termed "transitory" and those
triable where the subject-matter is situated are termed "local." State v. District Court of Swift County, 164 Minn.
433, 205 N.W. 284, 285.
ACTION OF ASSIZE. A real action which proves the title of the demandant, merely by showing
his ancestor's possession. Sherman v. Dilley, 3
Nev. 21, 26, citing 5 Chit.B1. 184.
ACTION OF ASSUMPSIT. See Assumpsit.
ACTION OF BOOK DEBT. A form of action for
the recovery of claims, such as are usually evidenced by a book-account; this action is principally used in Vermont and Connecticut. Newton
v. Higgins, 2 Vt. 366.
ACTION ON CONTRACT. An action brought to
enforce rights whereof the contract is the evi-
See Cause of Action.
50
ACTIONABLE
clouded or its value depreciated, or whereby the plaintiff
might be incommoded or damnified by assertion of an outstanding title already held or to grow out of the adverse
pretension. Bank of American Nat. Trust & Savings Ass'n
v. Town of Atherton, 60 Cal.App.2d 268, 140 P.2d 678, 680.
Bence, and usually the sufficient evidence. Kokusai Kisen Kabushiki Kaisha v. Argos Mercantile Corporation, C.C.A.N.Y., 280 F. 700, 701.
ACTION ON THE CASE. A species of personal
action of very extensive application, otherwise
called "trespass on the case," or simply "case,"
from the circumstance of the plaintiff's whole
case or cause of complaint being set forth at
length in the original writ by which formerly it
was always commenced. 3 Bl.Comm. 122. Wallace v. Wilmington & N. R. Co., 8 Houst. (Del.)
529, 18 A. 818.
ACTIONABLE. That for which an action will
lie, furnishing legal ground for an action.
ACTIONABLE FRAUD. Deception practiced in
order to induce another to part with property or
surrender some legal right; a false representation made with an intention to deceive; may be
committed by stating what is known to be false
or by professing knowledge of the truth of a statement which is false, but in either case, the essential ingredient is a falsehood uttered with intent to
deceive. Sawyer v. Prickett, 19 Wall. 146, 22 L.
Ed. 105.
In its most comprehensive signification it includes assumpsit as well as an action in form ex delicto; at present
when it is mentioned it is usually understood to mean an
action in form ex delicto. It is founded on the common law
or upon acts of Parliament, and lies generally to recover
damages for torts not committed with force, actual or implied; or having been occasioned by force where the matter affected was not tangible, or the injury was not immediate but consequential; or where the interest in the property was only in reversion, in all of which cases trespass is
not sustainable; 1 Chit.P1. 132. In the progress of judicial
contestation it was discovered that there was a mass of tortious wrongs unattended by direct and immediate force, or
where the force, though direct, was not expended on an existing right of present enjoyment, for which the then
known forms of action furnished no redress. The action
on the case was instituted to meet this want. And wrongs
which will maintain an action on the case are frequently
committed in the nonobservance of duties, which are but
the implication of contract obligation, duties of requisite
skill, fidelity, diligence, and a proper regard for the rights
of others, implied in every obligation to serve another. If
the cause of action arises from a breach of promise, the action is "ex contractu" ; but if the cause of action arises
from a breach of duty growing out of the contract, it is
in form ex delicto and case. When there is a contract, either express or implied, from which a common-law duty
results, an action on the case lies for the breach of that
duty. Bently-Beale, Inc. v. Wesson Oil & Snowdrift Sales
Co., 231 Ala. 562, 165 So. 830, 832. See Assumpsit.
To constitute "actionable fraud," it must appear that defendant made a material representation; that it was false ;
that when he made it he knew it was false,- or made it
recklessly without any knowledge of its truth and as a
positive assertion ; that he made it with intention that it
should be acted on by plaintiff ; that plaintiff acted in reliance on it; and that plaintiff thereby suffered injury.
Blair v. McCool, 136 Or. 139, 295 P. 950, 952. Essential elements are representation, falsity, scienter, .deception, and
injury. Cobb v. Cobb, 211 N.C. 146, 189 S.E. 479, 482.
ACTIONABLE MISREPRESENTATION. A false
statement respecting a fact material to the contract and which is influential in procuring it.
Wise v. Fuller, 29 N.J.Eq. 257.
ACTIONABLE NEGLIGENCE. The breach or
nonperformance of a legal duty, through neglect
or carelessness, resulting in damage or injury to
another. Fidelity & Casualty Co. v. Cutts, 95 Me.
162, 49 Atl. 673.
It is failure of duty, omission of something which ought
to have been done, or doing of something which ought not
to have been done, or which reasonable man, guided by
considerations which ordinarily regulate conduct of human affairs, would or would not do. Goff v. Emde, 32
Ohio App. 216, 167 N.E. 699, 700. Essential elements are
failure to exercise due care, injury, or damage, and proximate cause. Rountree v. Fountain, 203 N.C. 381, 166 S.E.
329, 330.
ACTION QUASI IN REM. An action brought
against persons which only seeks to subject certain property of those persons to discharge of
claims asserted and judgment therein is only conclusive between parties and their privies. Tobin
v. McClellan, 225 Ind. 335, 75 N.E.2d 149, 151.
ACTION REDHIBITORY, See Redhibitory Action.
ACTIONABLE NUISANCE. Anything wrongfully done or permitted which injures or annoys
another in the enjoyment of his legal rights. Miller v. City of Dayton, 70 Ohio App. 173, 41 N.E.2d
728, 730.
ACTION TO QUIET TITLE. One in which plaintiff asserts his own estate and declares generally
that defendant claims some estate in the land,
without defining it, and avers that the claim is
without foundation, and calls on defendant to set
forth the nature of his claim, so that it may be determined by decree.
It differs from a "suit to remove a cloud," in that plain-
Anything injurious to health, or indecent, or offensive to
the senses, or an obstruction to the free use of property so
as to interfere with the comfortable enjoyment of life or
property. Cooper v. Overton, 102 Tenn. 211, 52 S.W. 183,
45 L.R.A. 591.
ACTIONABLE TORT. To constitute an "actionable tort," there must be a legal duty, imposed by
statute or otherwise, owing by defendant to the
one injured, and in the absence of such duty damage caused is "injury without wrong" or "damnum
absque injuria." Coleman v. California Yearly
Meeting of Friends Church, 27 Cal.App.2d 579,
81 P.2d 469, 470.
tiff therein declares on his own title, and also avers the
source and nature of defendant's claim, points out its defect, and prays that it may be declared void as a cloud on
plaintiff's estate. Manning v. Gregoire, 97 Or. 394, 192 P.
406, 407. The apparent difference between an action to restore a lost instrument and one to quiet title is that, in the
former, ordinarily both the titles of plaintiff and defendant
are deraigned in the complaint, which must disclose that,
notwithstanding an apparent interest of defendant the
property belongs to plaintiff ; and in the latter action the
complaint need only allege the ultimate fact of plaintiff's
interest and defendant's outstanding claim. Nicholson v.
Nicholson, 67 Mont. 517, 216 P. 328, 329, 31 A.L.R. 548.
See, also, Slette v. Review Pub. Co., 71 Mont. 518, 230 P.
580, 581. It embraces every sort of a claim whereby the
plaintiff might be deprived of his property or his title
ACTIONABLE WORDS. In law of libel and
slander, such words as naturally imply damage.
Dahm v. O'Connell, 161 N.Y.S. 909, 911, 96 Misc.
582.
51
ACTIONABLE
Per Quod
Words actionable only on allegation and proof
of special damage. Knapp v. Post Printing &
Publishing Co., 111 Colo. 492, 144 P.2d 981, 984.
writing in order to have it set aside or its effect
ascertained under the certification that the writing if not produced shall be declared false or
forged; and (3) actions of simple reduction, for
declaring a writing called for null until produced.
Ersk.Princ. 4, 1, 5.
Words not actionable per se upon their face, but only
in consequence of extrinsic facts showing circumstances
under which they were said or the damages resulting to
slandered party therefrom. Smith v. Mustain, 210 Ky. 445,
276 S.W. 154, 155, 44 A.L.R. 386. Not injurious on their
face in their usual and natural signification, but only so in
consequence of extrinsic facts and requiring innuendo.
Piplack v. Mueller, 97 Fla. 440, 121 So. 459.
ACTIONUM GENERA MAXIME SUNT SERVANDA. The kinds of actions are especially to
be preserved. Lofft 460.
ACTIVE. That is in action; that demands action; actually subsisting; the opposite of passive. An active debt is one which draws interest.
An active trust is a confidence connected with a
duty. An active use is a present legal estate.
Per Se
Words in themselves libelous. Knapp v. Post
Printing & Publishing Co., 111 Colo. 492, 144 P.2d
981, 984.
Words which law presumes must actually, proximately,
and necessarily damage defendant for which general damages are recoverable and whose injurious character is a
fact of common notoriety, established by the general consent of men, necessarily importing damage. Ellsworth v.
Martindale-Hubbell Law Directory, 66 N.D. 578, 268 N.W.
400, 407. Words themselves opprobrious ; susceptible only
of opprobrious meaning. Fite v. Oklahoma Pub. Co., 146
Okl. 150, 293 P. 1073, 1075. Importing a charge of some
punishable crime or some offensive disease, imputing moral
turpitude, or tending to injure a party in his trade or
business. Barnes v. Trundy, 31 Me. 321; Lemons v. Wells,
78 Ky. 117; Mayrant v. Richardson, 1 Nott & McC. 347, 9
Am.Dec. 707. Tending to injure one's reputation, thereby
exposing him to public hatred, contempt or ridicule, tending to degrade or lower him. Hodges v. Cunningham,
160 Miss. 576, 135 So. 215, 217. Such words are actionable
without allegation of special damages. Kluender v. Semann, 203 Iowa 68, 212 N.W. 326, 327. See also Libelous
per se.
ACTIVE CONCEALMENT. This implies a purpose or design accomplished by words or acts,
while passive concealment consists in mere silence
where there is a duty to speak. Vendt v. Duenke,
Mo.App., 210 S.W.2d 692, 699.
Concealment becomes a fraud where it is effected by misleading and' deceptive talk, acts, or conduct, where it is
accompanied by misrepresentations, or where, in addition
to a party's silence, there is any statement, word, or act
on his part which tends affirmatively to a suppression of
the truth. Such conduct is designated active concealment.
Equitable Life Ins. Co. of Iowa v. Halsey, Stuart & Co.,
C.C.A.I11., 112 F.2d 302, 309.
ACTIVE NEGLIGENCE. A term of extensive
meaning obviously embracing many occurrences
that would fall short of willful wrongdoing, or of
crass negligence, for example, all inadvertent acts
causing injury to others, resulting from failure
to exercise ordinary care, likewise all acts the
effects of which are misjudged or unforeseen,
through want of proper attention, or reflection,
and hence the term covers the acts of willful
wrongdoing and also those which are not of that
character. Cohen v. Noel, Tenn.App., 104 S.W.2d
1001, 1005.
ACTIONABLE WRONG. Committed when a responsible person has neglected to use a reasonable
degree of care for protection of another person
from such injury as under existing circumstances
should reasonably have been foreseen as a proximate consequence of that negligence. Chadwick
v. Bush, 174 Miss. 75, 163 So. 823, 824.
ACTIONARE. L. Lat. (From actio, an action.)
In old records. To bring an action; to prosecute,
or sue. Thorn's Chron.; Whishaw.
ACTIVE SERVICE. "Active service" in army
does not necessarily mean actual service, but
means service performed at direction of superior
officer or officers while receiving emoluments to
which soldier is entitled. United States v. Woodworth, D.C.Mass., 36 F.Supp. 645, 646.
ACTIONARY. A foreign commercial term for
the proprietor of an action or share of a public
company's stock; a stockholder.
ACTIONES LEGIS. In the Roman law, legal or
lawful action; actions of or at law,) legitimoe actiones.) Dig. 1, 2, 2, 6.
ACTIVE TRUST. See Trust.
ACTIVITY. A recreational "activity" is a physical or gymnastic exercise, an agile performance,
such as dancing. McClure v. Board of Education
of City of Visalia, 38 Cal.App. 500, 176 P. 711, 712.
ACTIONES NOMINATIE. (Lat. named actions).
In the English chancery, writs for which there
were precedents. The statute of Westminster, 2,
c. 24, gave chancery authority to form new writs
in consimili case; hence the action on the case.
ACTON BURNEL, STATUTE OF. In English
law, a statute, otherwise called Statutum Mercatorum or de Mercatoribus the statute of the merchants, made at a parliament held at the castle or
village of Acton Burnel in Shropshire, in the 11th
year of the reign of Edward I. 2 Reeves, Eng.
Law, 158-162. It was a statute for the collection
of debts, the earliest of its class, being enacted in
1283. A further statute for the same object, and
known as De Mercatoribus, was enacted 13 Edw.
I. (c. 3.). See Statute Merchant.
ACTIONS. (Fr.) Shares of corporate stock.
Compare Actionary.
ACTIONS ORDINARY. In Scotch law, all actions
which are not rescissory. Ersk.Inst. 4, 1, 18.
ACTIONS RESCISSORY. In Scotch law, these
are either (1) actions of proper improbation for
declaring a writing false or forged; (2) actions
of reduction-improbation for the production of a
52
ACTUAL
if seen by the party whose claim is sought to be
divested, would apprise him that the party doing
the acts claimed the ownership of the property.
Crosby v. City of Greenville, 183 Mich. 452, 150
N.W. 246, 248.
ACTOR.
Old European Law
A patron, proctor, advocate, or pleader; one
who acted for another in legal matters; one
who represented a party and managed his cause.
An attorney, bailiff, or steward; one who managed or acted for another. The Scotch "doer" is
the literal translation.
ACTS OF SEDERUNT. In Scotch law, ordinances
for regulating the forms of proceeding, before the
court of session, in the administration of justice,
made by the judges, who have the power by virtue
of a Scotch act of parliament passed in 1540.
Ersk. Prin. § 14.
Roman Law
One who acted for another; one who attended
to another's business; a manager or agent. A
slave who attended to, transacted, or superintended his master's business or affairs, received and
paid out moneys, and kept accounts. Burrill.
ACTUAL. Real; substantial; existing presently
in act, having a valid objective existence as opposed to that which is merely theoretical or possible. Ciaccio v. Hartman, 170 La. 949, 129 So. 540.
Opposed to potential, possible, virtual, conceivable, theoretical, hypothetical, or nominal. American Ins. Co. of Newark, N. J., v. Seminole County
Board of Education, 51 Ga.App. 808, 181 S.E. 783,
786. Something real, in opposition to constructive or speculative; something existing in act.
Astor v. Merritt, 4 S.Ct. 413, 111 U.S. 202, 28 L.
Ed. 401. Existing in act, fact, or reality. Guarisco v. Massachusetts Bonding & Insurance Co.,
4 N.Y.S.2d 788, 792, 167 Misc. 875.
The word has a variety of closely-related meanings,
very nearly corresponding with manager. Thus, actor
domince, manager of his master's farm; actor ecclesice,
manager of church property; actores provinciarum, taxgatherers, treasurers, and managers of the public debt.
Actor ecclesice.—An advocate for a church; one who
protects the temporal interests of a church. Actor villce
was the steward or head-bailiff of a town or village. Cowell.
Plaintiff or complainant. In a civil or private action the
plaintiff was often called by the Romans "petitor;" in a
public action (causa publica) he was called "accusator."
The defendant was called "revs," both in private and public causes; this term, however, according to Cicero, ( De
43,) might signify either party, as indeed we
Orat.
might conclude from the word itself. In a private action,
the defendant was often called "adversarius," but either
party might be called so.
Also, the term is used of a party who, for the time
baing, sustains the burden of proof, or has the initiative in
the suit.
It is used as a legal term in contradistinction to virtual
or constructive as of possession or occupation; Cleveland
v. Crawford, 7 Hun (N.Y.) 616; or an actual settler,
which implies actual residence; ' McIntyre v. Sherwood, 82
Cal. 139, 22 Pac. 937. An actual seizure means nothing
more than seizure, since there was no fiction of constructive seizure before the act; L.R. 6 Exch. 203.
Actually is opposed to seemingly, pretendedly, or feignedly, as actually engaged in farming means really, truly,
in fact; In re Strawbridge & Mays, 39 Ala. 367; Ayer &
Lord Tie Co. v. Commonwealth, 208 Ky. 606, 271 S.W. 693,
694.
As to actual "Bias," "Damages," "Delivery," "Fraud,"
"Mal ice, " "Notice," "Occupation," "Ouster," "Possession," "Residence," "Seisin," "Total Loss," see those titles.
Actor qui contra regulam quid adduxit, non est
audiendus. A plaintiff (or pleader) is not to be
heard who has advanced anything against authority, (or against the rule.)
Actor sequitur forum rei. According as rei is
intended as the genitive of res, a thing, or reus,
a defendant, this phrase means: The plaintiff follows the forum of the property in suit, or the forum of the defendant's residence. Branch, Max. 4.
Home, Law Tr. 232; Story, Confl.L. § 325 k; 2
Kent 462.
ACTUAL AUTHORITY. In the law of agency,
such authority as a principal intentionally confers
on the agent, or intentionally or by want of ordinary care allows the agent to believe himself to
possess. National Cash Register Co. v. Wichita
Frozen Food Lockers, Tex.Civ.App., 172 S.W.2d
781, 787. Includes both express and implied authority. Grismore v. Consolidated Products Co.,
232 Iowa 328, 5 N.W.2d 646, 651.
ACTORE NON PROBANTE REUS ABSOLVITUR. When the plaintiff does not prove his case
the defendant is acquitted (or absolved). Hob.
103.
ACTUAL BIAS. See Bias.
ACTORI INCUMBIT ONUS PROBANDI. The
burden of proof rests on the plaintiff, (or on the
party who advances a proposition affirmatively.)
Hob. 103.
ACTUAL CASH VALUE. The fair or reasonable
cash price for which the property could be sold
in the market, in the ordinary course of business,
and not at forced sale; the price it will bring in
a fair market after reasonable efforts to find a
purchaser who will give the highest price. Peavy-Wilson Lumber Co. v. Jackson, 161 La. 669, 109
So. 351, 352. What property is worth in money,
allowing for depreciation. Glens Falls Ins. Co.
of New York v. Garner, 229 Ala. 39, 155 So. 533,
536. Ordinarily, "actual cash value," "fair market price," and "market value" are synonymous
terms. Butler v. JEtna Ins. Co. of Hartford,
Conn., 64 N.D. 764, 256 N.W. 214, 218.
ACTORNAY. In old Scotch law, an attorney.
Skene.
ACTRIX. Lat. A female actor; a female plaintiff. Calvinus, Lex.
ACTS OF COURT. Legal memoranda made in
the admiralty courts in England, in the nature of
pleas.
ACTS OF POSSESSION. To constitute adverse
possession, acts of possession must be such as,
53
ACTUAL
ACTUAL CHANGE OF POSSESSION. In statutes of frauds, an open, visible, and unequivocal
change of possession, manifested by the usual outward signs, as distinguished from a merely formal or constructive change. Stevens v. Irwin,
15 Cal. 503, 76 Am.Dec. 500.
ACTUAL SALE. Lands are "actually sold" at a.
tax sale, so as to entitle the treasurer to the statutory fees, when the sale is completed; when he
has collected from the purchaser the amount of
the bid. Miles v. Miller, 5 Neb. 272.
ACTUAL VALUE. "Actual value" to be awarded
in condemnation proceeding is price that would
probably result from negotiations between willing seller and willing buyer. State v. Hoblitt,
87 Mont. 403, 288 P. 181, 185. "Actual value,".
"market value," "fair value," and the like may
be used as convertible terms. Kerr v. Clinchfield Coal Corporation, 169 Va. 149, 192 S.E. 741,
744. "Saleable value," "actual value," "cash
value," and others used in directions to tax assessing officers, all mean the same thing. In re
Lang Body Co., C.C.A.Ohio, 92 F.2d 338, 340.
ACTUAL COST. The actual price paid for goods
by a party, in the case of a real bona fide purchase, and not the market value of the goods.
Ogunquit Village Corporation v. Inhabitants of
Wells, 123 Me. 207, 122 A. 522, 524.
"Actual cost" has no common-law significance, and it is
without any well-understood trade or technical meaning.
It is a general or descriptive term which may have varying meanings according to the circumstances in which it is
used. It imports the exact sum expended or loss sustained rather than the average or proportional part of the
cost. Its meaning may be restricted to overhead or extended to other items. State v. Northwest Poultry & Egg
Co., 203 Minn. 438, 281 N.W. 753, 755.
ACTUAL VIOLENCE. An assault with actual
violence is an assault with physical force put in
action, exerted upon the person assailed. The
term violence is synonymous with physical force,
and the two are used interchangeably in relation to assaults. Tanner v. State, 24 Ga.App. 132,
100 S.E. 44.
ACTUAL DELIVERY. See Delivery.
ACTUAL EVICTION. An actual expulsion of the
tenant out of all or some part of the demised
premises; a physical ouster or dispossession from
the very thing granted or some substantial part
thereof. Cauley v. Northern Trust Co., 315 Ill.
App. 307, 43 N.E.2d 147, 155, 315.
ACTUARIUS. In Roman law, a notary or clerk.
One who drew the acts or statutes, or who wrote
in brief the public acts.
An officer who had charge of the public baths;
an officer who received the money for the soldiers,
and distributed it among them; a notary.
An actor, which see. Du Cange.
An arbitrary and willful interference with tenant's rights
by landlord is essential. Kusche v. Sabin, City Ct., New
Rochelle, 6 N.Y.S.2d 771, 773. Deprivation of beneficial
enjoyment of property in whole or in part or exclusion
from some portion of demised premises. Kusche v. Sabin,
City Ct., New Rochelle, 6 N.Y.S.2d 771, 773. Dispossession
by process of law, Stanton v. Conley, 278 N.Y.S. 275, 277,
244 App.Div. 84. Expulsion or exclusion from demised
premises. Liberal Savings & Loan Co. v. Frankel Realty
Co., 137 Ohio St. 489, 30 N.E.2d 1012, 1017, physical expulsion by landlord. General American Life Ins. Co. v. North
American Mfg. Co., 320 Ill.App. 488, 51 N.E.2d 619, wrongful entry on premises by lessor is necessary. Title & Trust
Co. v. Durkheimer Inv. Co., 155 Or. 427, 63 P.2d 909.
ACTUARY. In English ecclesiastical law, a clerk
that registers the acts and constitutions of the
lower house of convocation; or a registrar in a
court christian.
Also an officer appointed to keep savings banks
accounts; the computing officer of an insurance
company; a person skilled in calculating the value of life interests, annuities, and insurances.
Champagne v. Unity Industrial Life Ins. Co., La.
App., 161 So. 52, 53.
ACTUAL FRAUD. See Fraud.
ACTUAL LOSS. One resulting from the real
and substantial destruction of the property insured.
ACTUAL MARKET VALUE. In custom laws,
ACTUM. Lat. A deed; something done.
the price at which merchandise is freely offered
for sale to all purchasers; the price which the
manufacturer or owner would have received for
merchandise, sold in the ordinary course of trade
in the usual wholesale quantities. United States
v. Sischo, D.C.Wash., 262 F. 1001, 1011.
ACTUS. In the civil law, an act or action. Non
tantum verbis, sed etiam actu; not only by words,
but also by act. Dig. 46, 8. 5.
A species of right of way, consisting in the right
of driving cattle, or a carriage, over the land
subject to the servitude. Inst.. 2, 3, pr. It is sometimes translated a "road," and included the kind
of way termed "iter," or path. Lord Coke, who.
adopts the term "actus" from Bracton, defines it
a foot and horse way, vulgarly called "pack and
prime way;" but distinguishes it from a cart-way.
Co.Litt. 56a; Boyden v. Achenbach, 79 N.C. 539.
In old English law, an act of parliament; a
statute. 8 Coke 40. A distinction, however, was
sometimes made between actus and statutum.
Actus parliamenti was an act made by the lords
and commons; and it became statutum, when it
received the king's consent. Barring.Obs.St. 46,
note b.
ACTUAL NOTICE. See Notice.
ACTUAL POSSESSION. See Possession.
ACTUAL PRACTICE. Active, open and notori-
ous engagement in business, vocation or profession as opposed to casual, occasional or clandestine practice. State ex rel. Laughlin v. Washington State Bar Ass'n, 26 Wash.2d 914, 176 P.2d
301_, 309.
ACTUAL RESIDENCE. The abode, where one
actually lives, not mere naked legal residence.
In Re McGrath, 243 App.Div. 803, 278 N.Y.S. 135.
54
AD CULPAM
AD. Lat. At; by; for; near; on account of;
to; until; upon; with relation to or concerning.
Actus curiae neminem gravabit. An act of the
court shall prejudice no man. Jenk.Cent. 118.
Where a delay in an action is the act of the court,
neither party shall suffer for it.
AD ABUNDANTIOREM CAUTELAM. L. Lat.
For more abundant caution. 2 How. State Tr.
1182. Otherwise expressed, ad cautelam ex superabundanti. Id. 1163.
Actus Del nemini est damnosus. The act of God
is hurtful to no one. 2 Inst. 287. That is, a person cannot be prejudiced or held responsible for
an accident occurring without his fault and attributable to the "act of God." See Act of God.
AD ADMITTENDUM CLERICUM. For the admitting of the clerk. A writ in the nature of an
execution, commanding the bishop to admit his
clerk, upon the success of the latter in a quare
Actus Del nemini facit injuriam. The act of
God does injury to no one. 2 Bl.Comm. 122. A
thing which is inevitable by the act of God, which
no industry can avoid, nor policy prevent, will
not be construed to the prejudice of any person in
whom there was no laches. Broom, Max. 230.
impedit.
AD ALIUD EXAMEN. To another tribunal; belonging to another court, cognizance, or jurisdiction.
AD ALIUM DIEM. At another day. A common
phrase in the old reports. Yearb. P. 7 Hen. VI. 13.
Actus inceptus, cujus perfectio pendet ex voluntate partium, revocari potest; si autem pendet ex voluntate testiae persona . , vel ex contingenti, revocari non potest. An act already begun, the completion of which depends on the
will of the parties, may be revoked; but if it
depend on the will of a third person, or on a contingency, it cannot be revoked. Bac.Max. reg. 20.
AD ASSISAS CAPIENDAS. To take assises; to
take or hold the assises. Bract. fol. 110a; 3 Bl.
Comm. 185, 352. Ad assisam capiendam; to take
an assise. Bract. fol. 110b.
AD AUDIENDAM CONSIDERATIONEM
CURIIE. To hear the judgment of the court.
Bract. 383 b.
Actus judiciarius coram non judice irritus habetur, de ministeriali autem a quocunque provenit
ratum esto. A judicial act by a judge without
jurisdiction is void; but a ministerial act, from
whomsoever proceeding, may be ratified. Lofft,
458.
AD AUDIENDUM ET DETERMINANDUM. To
hear and determine. St. Westm. 2, cc. 29, 30. 4
Bla.Com. 278.
AD BARRAM. To the bar; at the bar. 3 How.
State Tr. 112.
Actus legis nemini est damnosus. The act of
the law is hurtful to no one. An act in law shall
prejudice no man. 2 Inst. 287.
AD BARRAM EVOCATUS. Called to the bar. 1
Ld.Raym. 59.
Actus legis nemini facit injuriam. The act of
the law does injury to no one. 5 Coke, 116.
AD CAMPI PARTEM. For a share of the field
or land, for champert. Fleta, lib. 2, c. 36, § 4.
Actus legitimi non recipiunt modum. Acts required to be done by law do not admit of qualification. Hob. 153; Branch, Princ.
AD CAPTUM VULGI. Adapted to the common
understanding.
AD COLLIGENDUM. For collecting; as an administrator or trustee ad colligendum. 2 Kent
414.
Actus me invito factus non est meus actus. An
act done by me, against my will, is not my act.
Branch, Princ.
AD COLLIGENDUM BONA DEFUNCT'. For
collecting the goods of the deceased. See Administration of Estates.
Actus non facit reum, nisi mens sit rea. An act
does not make [the doer of it] guilty, unless the
mind be guilty; that is, unless the intention be
criminal. 3 Inst. 107. The intent and the act
must both concur to constitute the crime. Lord
Kenyon, C. J., 7 Term 514; Broom, Max. 306.
AD COMMUNE NOCUMENTUM. To the common nuisance. Broom & H.Com. 196.
Actus repugnus non potest in esse produci. A
repugnant act cannot be brought into being, i. e.,
cannot be made effectual. Plowd. 355.
AD COMMUNEM LEGEM. At common law, the
name of a writ of entry (now obsolete) brought
by the reversioners after the death of the life
tenant, for the recovery of lands wrongfully
alienated by him.
Actus servi in its quibus opera ejus communiter
adhibita est, actus domini habetur. The act of a
servant in those things in which he is usually employed, is considered the act of his master. Lofft,
227.
AD COMPARENDUM. To appear. Ad comparendum, et ad standum juri, to appear and to
stand to the law, or abide the judgment of the
court. Cro.Jac. 67.
AD COMPUTUM REDDENDUM. To render an
account. St.Westm. 2, c. 11.
A. D. An abbreviation of Anno Domini meaning
in the year of our Lord. Commonwealth v. Traylor, 20 Ky.Law Rep. 97, 98, 45 S.W. 356.
AD CULPAM. Until misbehavior.
55
AD CURIAM
AD CURIAM. At a court. 1 Salk. 195. To court.
Ad curiam vocare, to summon to court.
AD FEODI FIRMAM. To fee farm. Fleta, lib. 2,
c. 50, § 30.
AD CUSTAGIA. At the costs. Toullier; Cowell;
Whishaw.
AD FIDEM. In allegiance. 2 Kent, Comm. 56.
Subjects born ad fidem are those born in allegiance.
AD CUSTUM. At the cost. 1 Bl.Comm. 314.
AD FILUM AQU1E. To the thread of the water;
to the central line, or middle of the stream.
Usque ad filum aquce, as far as the thread of the
stream. Bract. fol. 208b; 235a. A phrase of frequent occurrence in modern law; of which ad
medium filum aquce (q. v.) is another form, and
etymologically more exact.
AD DAMNUM. In pleading. "To the damage."
The technical name of that clause of the writ
or declaration which contains a statement of the
plaintiff's money loss, or the damages which he
claims. Vincent v. Life Ass'n, 75 Conn. 650, 55
Atl. 177.
AD DEFENDENDUM. To defend. 1 Bl.Comm.
227.
AD FILUM VIZE. To the middle of the way; to
the central line of the road. Parker v. Inhabitants of Framingham, 8 Mete. (Mass.) 260.
AD DIEM. At a day; at the day. Townsh.Pl. 23.
Ad alium diem. At another day. Y.B. 7 Hen. VI,
13. Ad certum diem, at a certain day. 2 Strange,
747. Solvit ad diem; he paid at or on the day. 1
Chit.P1. 485.
AD FINEM. Abbreviated ad fin. To the end.
It is used in citations to books, as a direction to
read from the place designated to the end of the
chapter, section, etc. Ad finem litis, at the end
of the suit.
AD EA QUZE FREQUENTIUS ACCIDUNT JURA
ADAPTANTUR. Laws are adapted to those cases
which most frequently occur. 2 Inst. 137; Broom,
Max. 43.
AD FIRMAM. To farm. Derived from an old
Saxon word denoting rent. Ad firmam noctis was
a fine or penalty equal in amount to the estimated
cost of entertaining the king for one night. Cowell. Ad feodi firmam, to fee farm. Spelman.
Laws are adapted to cases which frequently occur. A
statute, which, construed according to its plain words, is,
in all cases of ordinary occurrence, in no degree inconsistent or unreasonable, should not be varied by construction in every case, merely because there is one possible
but highly improbable case in which the laW would operate with great severity and against our notions of justice.
The utmost that can be contended is that the construction
of the statute should be varied in that particular case, so
as to obviate the injustice. 7 Exch. 549; 8 Exch. 778.
AD FUNDANDAM JURISDICTIONEM. To make
the basis of jurisdiction. [1905] 2 K.B. 555.
AD GAOLAS DELIBERANDAS. To deliver the
gaols; to empty the gaols. Bract. fol. 109b. Ad
gaolam deliberandam; to deliver the gaol; to
make gaol delivery. Bract. fbl. 110b.
AD EFFECTUM. To the effect, or end. Co.Litt.
204a; 2 Crabb, Real Prop. p. 802, § 2143. Ad
eff ectum sequentem, to the effect following. 2
Salk. 417.
AD GRAVAMEN. To the grievance, injury, or
oppression. Fleta, lib. 2, c. 47, § 10.
AD HOC. For this; for this special purpose.
AD EVERSIONEM JURIS NOSTRI. To the overthrow of our right. 2 Kent 91.
An attorney ad hoc, or a guardian or curator ad hoc,.
is one appointed for a special purpose, generally to represent the client or infant in the particular action in which
the appointment is made. Bienvenu v. Insurance Co., 33
La. Ann. 212.
AD EXCAMBIUM. For exchange; for compensation. Bract. fol. 12b, 37b.
AD EXHIEREDATIONEM. To the disherison, or
disinheriting; to the injury of the inheritance. 3
Bl.Comm. 288.
AD HOMINEM. To the person. A term used in
logic with reference to a personal argument.
AD HUNC DIEM. At this day. 1 Leon. 90.
Formal words in the old writ of waste, which calls upon,
the tenant to appear and show cause why he hath committed waste and destruction in the place named, ad exhceredationem, etc. ; Fitzherbert, Nat. Bev. 55.
AD IDEM. To the same point, or effect. Ad idem
facit, it makes to or goes to establish the same
point. Bract. fol. 27b.
AD EXITUM. At issue; at the end (of the pleadings.) Steph.P1. 24.
AD INDE. Thereunto. Ad inde requisitus, thereunto required. Townsh.Pl. 22.
AD FACIENDUM. To do. Co.Litt. 204a. Ad
faciendum, sub jiciendum et recipiendum; to do,
submit to, and receive. Ad faciendam juratamillam; to make up that jury. Fleta, lib. 2, c. 65,
§ 12.
AD INFINITUM. Without limit; to an infinite
extent; indefinitely.
AD INQUIRENDUM. To inquire; a writ of inquiry; a judicial writ, commanding inquiry to be
made of anything relating to a cause pending in
court. Cowell.
AD FACTUM PR1ESTANDUM. In Scotch law, a
name descriptive of a class of obligations marked
by unusual severity. A debtor ad fac. prces. is
denied the benefit of the act of grace, the privilege
of sanctuary, and the cessio bonorum; Erskine,
Inst. lib. 3, tit. 3, § 62; Kames, Eq. 216.
AD INSTANTIAM. At the instance. 2 Mod. 44.
Ad instantiam partis, at the instance of a party.
Hale, Com.Law, 28.
56
AD QUOD DAMNUM
AD INTERIM. In the meantime. An officer ad
interim is one appointed to fill a temporary va-
AD OFFICIUM JUSTICIARIORUM SPECTAT,
UNICUIQUE CORAM EIS PLACITANTI JUSTITIAM EXHIBERE. It is the duty of justices
to administer justice to every one pleading before
them. 2 Inst. 451.
AD JUDICIUM. To judgment; to court. Ad judicium provocare; to summon to court; to com-
AD OMISSA VEL MALE APPRETIATA. With
relation to omissions or wrong interpretations. 3
Ersk.Inst. 9, § 36.
cancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent.
mence an action; a term of the Roman law.
Dig. 5, 1, 13, 14.
AD OPUS. To the work. See 21 Harv.L.Rev. 264,
citing 2 Poll. & Maitl. 232 et seq.; Use.
AD JUNGENDUM AUXILIUM. To joining in
aid; to join in aid. See Aid Prayer.
AD OSTENDENDUM. To show. Formal words
in old writs. Fleta, lib. 4, c. 65, § 12.
AD JURA REGIS. To the rights of the king; a
writ which was brought by the king's clerk, presented to a living against those who endeavored to
eject him, to the prejudice of the king's title.
Reg. Writs 61.
AD OSTIUM ECCLESIZE. At the door of the
church. One of the five species of dower formerly
recognized by the English law. 1 Washb.Real
Prop. 149; 2 Bl.Comm. 132.
AD LARGUM. At large: as, title at large; assize
at large. See Dane, Abr. c. 144, art. 16, § 7. Also
at liberty; free, or unconfined. Ire ad largum, to
go at large. Plowd. 37.
At large; giving details, or particulars; in
extenso. A special verdict was formerly called a
verdict at large. Plowd. 92.
AD PIOS USUS. Lat. For pious (religious or
charitable) uses or purposes. Used with reference
to gifts and bequests.
AD PROSEQUENDAM. To prosecute. 11 .Mod.
362.
Ad proximum antecedens fiat relatio nisi impediatur sententia. Relative words refer to the nearest antecedent, unless it be prevented by the context. Jenk.Cent. 180; Brown v. Brown, Del., 3
Terry 157, 29 A.2d 149, 153.
AD LIBITUM. At pleasure. 3 Bla.Com. 292.
AD LITEM. For the suit; for the purposes of the
suit; pending the suit. A guardian ad litem is a
guardian appointed to prosecute or defend a suit
on behalf of a party incapacitated by infancy or
otherwise.
AD PUNCTUM TEMPORIS. At the point of
time. Sto.Bailm. § 263.
AD LUCRANDUM VEL PERDENDUM. For gain
or loss. Emphatic words in the old warrants of
attorney. Reg. Orig. 21, et seq. Sometimes expressed in English, "to lose and gain." Plowd.
201.
AD QUIERIMONIAM. On complaint of.
AD QUAESTIONEM FACTI NON RESPONDENT
JUDICES, AD QUAESTIONEM JURIS NON RESPONDENT JURATORES. Means that juries
must answer to questions of fact and judges to
questions of law. Ex parte United States, C.C.A.
Wis., 101 F.2d 870, 874.
AD MAJOREM CAUTELAM. For greater security. 2 How.State Tr. 1182.
AD MANUM. At hand; ready for use. Et querens sectam habeat ad manum; and the plaintiff
AD QUEM. To which.
A term used in the computation of time or distance, as
correlative to a quo; denotes the end or terminal point.
See A Quo.
The terminus a quo is the point of beginning or departure; the terminus ad quern, the end of the period or
point of arrival.
i mmediately have his suit ready. Fleta, lib. 2,
c. 44, § 2.
AD MEDIUM FILUM AQU,E. To the middle
thread of the stream. See Ad Filum Aqu as .
AD QUESTIONES FACTI NON RESPONDENT
JUDICES; AD QUESTIONES LEGIS NON RESPONDENT JURATORES. Judges do not answer
questions of fact; juries do not answer questions
of law. 8 Coke, 308; Co.Litt. 295.
AD MEDIUM FILUM VISE. To the middle thread
of the way.
AD MELIUS INQUIRENDUM. A writ directed to
a coroner commanding him to hold a second inquest. See 45 Law J.Q.B. 711.
AD QUESTIONES LEGIS JUDICES, ET NON
JURATORES, RESPONDENT. Judges, and not
jurors, decide questions of law. 7 Mass. 279.
AD MORDENDUM ASSUETUS. Accustomed to
bite. Cro.Car. 254. A material averment in declarations for damage done by a dog to persons or
animals. 1 Chit.P1. 388; 2 Chit.P1. 597.
AD QUOD CURIA CONCORDAVIT. To which
the court agreed. Yearb.P. 20 Hen. VI. 27.
AD NOCUMENTUM. To the nuisance, or annoyance; to the hurt or injury. Fleta, lib. 2, c. 52,
§ 19. Ad nocumentum liberi tenementi sui, to the
nuisance of his freehold. Formal words in the old
assise of nuisance. 3 Bl.Comm. 221.
AD QUOD DAMNUM. The name of a writ formerly issuing from the English chancery, commanding the sheriff to make inquiry "to what
damage" a specified act, if done, will tend.
57
AD QUOD DAMNUM
It is a writ which ought to be sued before the king
grants certain liberties, as a fair, market, or such like,
which may be prejudicial to others, and thereby it should
be inquired whether it will be a prejudice to grant them,
and to whom it will be prejudicial, and what prejudice 'will
come thereby. Termes de la Ley.
AD TERMINUM ANNORUM. For a term of
years.
AD TERMINUM QUI PRIETERIT. For a term
which has passed. Words in the Latin form of the
writ of entry employed at common law to recover,
on behalf of a landlord, possession of premises,
from a tenant holding over after the expiration of
the term for which they were demised. See Fitzh.
Nat.Brev. 201.
There is also another writ of ad quod damnum,
if any one will turn a common highway and lay
out another way as beneficial. Termes de la Ley.
The writ of ad quod damnum is a common-law writ, in
the nature of an original writ, issued by the prothonotary,
and in condemnation proceedings is returnable to and subject to confirmation of the Superior Court. Elbert v. Scott,
Del., 5 Boyce 1, 90 A. 587.
AD TRISTEM PARTEM STRENUA EST SUSPICIO. Suspicion lies heavy on the unfortunate
side.
AD QUOD NON FUIT RESPONSUM. To which
there was no answer.
AD TUNC ET IBIDEM. In pleading, the Latin
name of that clause of an indictment containing
the statement of the subject-matter "then and
there being found."
A phrase used in the reports, where a point advanced
in argument by one party was not denied by the other;
or where a point or argument of counsel was not met or
notice by the court; or where an objection was met by the
court, and not replied to by the counsel who raised it. 3
Coke, 9; 4 Coke, 40.
AD ULTIMAN VIM TERMINORUM. To the most
extended import of the terms; in a sense as universal as the terms will reach. 2 Eden, 54.
AD RATIONEM PONEJE. To cite a person to
appear. A technical expression in the old records of the Exchequer, signifying, to put to the
bar and interrogate as to a charge made; to arraign on a trial.
AD USUM ET COMMODUM. To the use and
benefit.
AD VALENTIAM. To the value. See Ad Valorem.
AD RECOGNOSCENDUM. To recognize. Fleta,
lib. 2, c. 65, § 12. Formal words in old writs.
AD VALOREM. According to value. Powell v.
Gleason; Ariz., 74 P.2d 47, 50, 114 A.L.R. 838.
AD RECTE DOCENDUM OPORTET, PRIMUM
INQUIRERE NOMINA, QUIA RERUM COGNITIO A NOMINIBUS RERUM DEPENDET. In
order rightly to comprehend a thing, inquire
first into the names, for a right knowledge of
things depends upon their names. Co.Litt. 68.
Duties are either ad valorem or specific; the former
when the duty is laid in the form of a percentage on the
value of the property ; the latter where it is imposed as a
fixed sum on each article of a class without regard to its
value. The term ad valorem tax means a tax or duty upon
the value of the article or thing subject to taxation. Arthur v. Johnston, 185 S.C. 324, 194 S.E. 151, 154.
AD RECTUM. (L. Lat.) To right. To do right.
To meet an accusation. To answer the demands
of the law. Habeant eos ad rectum. They shall
render themselves to answer the law, or to make
satisfaction. Bract. fol. 124 b.
AD VENTREM INSPICIENDUM. To inspect the
womb. A writ for the summoning of a jury of
matrons to determine the question of pregnancy.
AD VIM MAJOREM VEL AD CASUS FORTUITUS NON TENETUR QUIS, NISI SUA CULPA
INTERVENERIT. No one is held to answer for
the effects of a superior force, or of accidents, unless his own fault has contributed. Fleta, lib. 2,
c. 72, § 16.
AD REPARATIONEM ET SUSTENTATIONEM.
For repairing and keeping in suitable condition.
AD RESPONDENDUM. For answering; to make
answer; words used in certain writs employed
for bringing a person before the court to make
answer in defense in a proceeding, as in habeas
corpus ad respondendum and capias ad responden-
AD VITAM. For life. Bract. fol. 13b. In feodo,
vel ad vitam; in fee, or for life. Id.
dum, q. v.
AD VITAM AUT CULPAM. For life or until
fault. Words descriptive of a tenure of office
"for life or good behavior," equivalent to quam-
AD SATISFACIENDUM. To satisfy. The emphatic words of the writ of capias ad satisfaciendum, which requires the sheriff to take the person
of the defendant to satisfy the plaintiff's claim.
diu bene se gesserit.
AD VOLUNTATEM. At will. Bract. fol. 27a. Ad
AD SECTAM. At the suit of. Commonly abbreviated to ads.
voluntatem domini, at the will of the lord.
Used in entering and indexing the names of cases, where
it is desired that the name of the defendant should come
first. Thus, "B. ads. A." indicates that B. is defendant in
an action brought by A., and the title so written would
be an inversion of the more usual form "A. v. B."
AD WARACTUM. To fallow. Bract. fol. 228b.
See Waractum.
ADAPTED. Capable of use. People v. Dorrington, 221 Mich. 571, 191 N.W. 831, 832. Indicates
that the object referred to has been made suitable; has been made to conform to ; has been
made fit by alteration. Raynor v. United States,
C.C.A.Ind., 89 F.2d 469, 471.
AD STUDENDUM ET ORANDUM. For studying
and praying; for the promotion of learning and
religion. A phrase applied to colleges and universities. 1 Bl.Comm. 467.
58
ADDITIONAL
ADAWLUT. Corrupted from Adalat, justice, equity; a court of justice. The terms "Dewanny
Adawlut" and "Foujdarry Adawlut" denote the
civil and criminal courts of justice in India.
Wharton,
ADCORDABILIS DENARII. Money paid by a
vassal to his lord upon the selling or exchanging
of a feud. Enc. Lond,
ADD. To unite; attach; annex; join. Board
of Com'rs of Hancock County v. State, 119 Ind.
473, 22 N.E. 10.
ADDENDUM. A thing that is added or to be added; a list or section consisting of added material.
ADDICERE. Lat. In the civil law, to adjudge or
condemn; to assign, allot, or deliver; to sell.
In the Roman law, addico was one of the three
words used to express the extent of the civil
jurisdiction of the praetors.
ADDICT. As defined in Acts 1894, No. 157, one
who has acquired the habit of using spirituous
liquors or narcotics to such an extent as to deprive him of reasonable self-control. Interdiction
of Gasquet, 147 La. 722, 85 So. 884, 888.
ADDICTIO. In the Roman law, the giving up to
a creditor of his debtor's person by a magistrate;
also the transfer of the (deceased) debtor's goods
to one who assumes his liabilities.
Additio probat minoritatem. An addition [to a
name] proves or shows minority or inferiority.
4 Inst. 80; Wing.Max. 211, max. 60. That is, if it
be said that a man has a fee tail, it is less than if
he has the fee.
purtenant to some other building though not actually in physical contact therewith. Taylor v.
Northwestern Nat. Ins. Co., 34 Cal.App. 471, 167
P. 899. Not limited to structures physically a part
of the main building. Gertner v. Glens Falls Ins.
Co., 184 N.Y.S. 669, 670, 193 App.Div. 836,
Liens
Within the meaning of the mechanic's lien law,
an "addition" to a building must be a lateral addition. Lake & Risley Co. v. Still, 7 N.J.Misc. 47,
144 A. 110. It must occupy ground without the
limits of the building to which it constitutes an addition, so that the lien shall be upon the building
formed by the addition and the land upon which
it stands. Updike v. Skillman, 27 N.J.L. 132.
See also, Lamson v. Maryland Casualty Co., 196
Iowa 1185, 194 N.W. 70, 71.
An alteration in a former building, by adding to its
height, or to its depth, or to the extent of its interior accommodations, is merely an "alteration," and not an "addition." Putting a new story on an old building is not an
addition. Updike v. Skillman, 27 N.J.L. 132. See, also,
Lamson v. Maryland Casualty Co., 196 Iowa 1185, 194 N.W.
70, 71.
•
Did not include new livestock acquired by mortgagor after execution of mortgage. American State Bank of Watertown v. Boyle, 212 Minn. 293, 4 N.W.2d 108, 109.
Name
Whatever is added to a man's name by way of
title or description. Cowell.
In English law, there are four kinds of additions,—additions of estate, such as yeoman, gentleman, esquire; additions of degree, or names of dignity, as knight, earl, marquis, duke; additions of trade, mystery, or occupation, as
scrivener, painter, mason, carpenter; and additions of
place of residence, as London, Chester, etc. The only additions recognized in American law are those of mystery
and residence.
At common law there was no need of addition in any
case; 2 Ld.Raym. 988; it was required only by stat. 1
Hen. V. c. 5, in cases where process of outlawry lies. In
all other cases it is only a description of the person, and
common reputation is sufficient; 2 Ld.Raym. 849.
This maxim is applied by Lord Coke to courts, and,
terms of law; minoritas being understood in the sense of
difference, inferiority, or qualification. Thus, the style
of the king's bench is coram rege, and the style of the
court of chancery is coram domino rege in cancellaria;
the addition showing the difference. 4 Inst. 80. By the
word "fee" is intended fee-simple, fee-tail not being intended by it, unless there. be added to it the addition of
the word "tail." 2 Bl.Comm. 106; Litt. § 1.
ADDITIONAL. This term embraces the idea of
joining or uniting one thing to another, so as
thereby to form one aggregate. Ex parte Boddie,
200 S.C. 379, 21 S.E.2d 4, 8.
ADDITION. Implies physical contact, something
added to another. Structure physically attached
to or connected with building itself. Mack v.
Eyssell, 332 Mo. 671, 59 S.W.2d 1049; Washington
Loan & Trust Co. v. Hammond, 51 App.D.C. 260,
278 F. 569, 571.
"Additional security" imports a security, which, united
with or joined to the former one, is deemed to make it,
as an aggregate, sufficient as a security from the beginning. State v. Hull, 53 Miss. 626; Searcy v. Cullman
County, 196 Ala. 287, 71 So. 664, 665.
Extension; increase; augmentation. Meyering
v. Miller, 330 Mo. 885, 51 S.W.2d 65, 66.
That which has become united with or a part
of. Judge v. Bergman, 258 Ill. 246, 101 N.E. 574,
576.
French Law
A supplementary process to obtain additional
information. Guyot, Repert.
ADDITIONAL BURDEN. See Eminent Domain.
ADDITIONAL INSURED. A person using another's automobile, which is covered by liability
policy containing statutory omnibus clause, only
when insured's permission is expressly or impliedly given for particular use. Stewart v. City of Rio
Vista, 72 Cal.App.2d 279, 164 P.2d 274, 275.
Driver chosen by friend to whom automobile was entrusted by husband who had possession with direct permission of wife in whose name record title lay was not additional insured. Fox v. Crawford, Ohio App., 80 N.E.2d
187, 189.
Where driver of automobile at time it struck pedestrian
was using automobile for his own purpose after having
received permission from owner only to get automobile
Insurance
The word "addition," as applied to buildings,
usually means a part added or joined to a main
building. Agnew v. Sun Ins. Office, 167 Wis. 456,
167 N.W. 829. It may also apply to buildings ap59
ADDITIONAL
started and return automobile to owner's home, driver was
not additional insured. Howe v. Farmers Auto. Inter-Insurance . Exchange; Wash., 202 P.2d 464, 472.
management, dexterity, or adroitness. In re Wigton, 151 Pa.Super. 337, 30 A.2d 352, 355.
ADDITIONAL LEGACY. See Legacy.
ADDRESS TO THE CROWN. When the royal
speech has been read in Parliament, an address in
answer thereto is moved in both houses. Two
members are selected in each house by the administration for moving and seconding the address. Since the commencement of the session
1890-1891, it has been a single resolution expressling their thanks to the sovereign for his gracious
speech.
ADDITIONAL SERVITUDE. The imposition of
a new and additional easement or servitude on
land originally taken by eminent domain proceedings, a use of a different character, for which
owner of property is entitled to compensation. S.
D. Childs & Co. v. City of Chicago, 198 Ill.App.
590, 593; Williams v. Meridan Light & Ry. Co.,
110 Miss. 174, 69 So. 596, 597.
ADDITIONAL WORK. Of nature involved in
modifications and changes, not independent project. Maryland Casualty Co. v. City of South Norfolk, C.C.A.Va., 54 F.2d 1032, 1037. Work which
results from a change or alteration in plans concerning work which has to be done under a contract, while "extra work" relates to work which is
not included within the contract itself. De Martini v. Elade Realty Corp., Co.Ct., 52 N.Y.S.2d 487,
489.
ADDUCE. To present, bring forward, offer, introduce. Used particularly with reference to evidence. Tuttle v. Story County, 56 Iowa 316, 9
N.W. 292.
Broader in its signification than the word "offered." Beatty v. O'Connor, 106 Ind. 81, 5 N.E.
880; Brown v. Griffin, 40 Ill.App. 558.
ADEEM. To take away, recall, or revoke. To
satisfy a legacy by some gift or substituted disposition, made by the testator, in advance. Tolman v. Tolman, 85 Me. 317, 27 Atl. 184. Woodburn Lodge No. 102, I. 0. 0. F., v. Wilson, 148 Or.
150, 34 P.2d 611, 614. See Ademption.
ADDITIONALES. In the law of contracts. Additional terms or propositions to be added to a
former agreement.
If the identical thing bequeathed is not in existence,
or has been disposed of, the legacy is "adeemed" and the
legatee's rights are gone. Lange v. Lange, 127 N.J.Eq.
315, 12 A.2d 840, 843; Welch v. Welch, 147 Miss. 728, 113
So. 197, 198.
ADDITUR. The power of trial court to assess
damages or increase amount of an inadequate
award made by jury verdict, as condition of denial of motion for new trial, with consent of defendant whether or not plaintiff consents to such
action. Dorsey et al. v. Barba et al., 226 P.2d
677.
ADELANTADO. In Spanish law, the military
and political governor of a frontier province.
This office has long since been abolished. Also a
president or president judge; a judge having
jurisdiction over a kingdom, or over certain provinces only. So called from having authority over
the judges of those places. Las Partidas, pt. 3,
tit. 4, 1. 1.
ADDLED. Stupid, muddled, foolish. Windham v.
State, 93 Tex.Cr.R. 477, 248 S.W. 51, 54.
ADDLED PARLIAMENT. The parliament which
met in 1614. It sat for but two months and none
of its bills received the royal assent. Taylor,
Jurispr. 359.
ADELING, or ATHELING. Noble; excellent.
A title of honor among the Anglo-Saxons, properly belonging to the king's children. Spelman.
ADDONE, Addonne. L. Fr. Given to. Kelham.
ADDRESS. Place where mail or other communications will reach person. Munson v. Bay State
Dredging & Contracting Co., 314 Mass. 435, 50
N.E.2d 633, 636. Generally a place of business or
residence.
Equity
Part of a bill wherein is given the appropriate
and technical description of the court in which
the bill is filed.
Legislation
A formal request addressed to the executive by
one or both branches of the legislative body, requesting him to perform some act.
It is provided as a means for the removal of judges
ADEMPTIO. Lat. In the civil law, a revocation
of a legacy; an ademption. Inst. 2, 21, pr. Where
it was expressly transferred from one person to
another, it was called translatio. Inst. 2, 21, 1;
Dig. 34, 4.
ADEMPTION. Extinction or withdrawal of legacy by testator's act equivalent to revocation or indicating intention to revoke. Tagnon's Adm'x v.
Tagnon, 253 Ky. 374, 69 S.W.2d 714.
Removal. Lewis v. Hill, 387 Ill. 542, 56 N.E.2d
619, 621. Testator's giving to a legatee that
which he has provided in his will, or his disposing
of that part of his estate so bequeathed in such
manner as to make it impossible to carry out the
will. Hurley v. Schuler, 296 Ky. 118, 176 S.W.2d
275, 276. Revocation, recalling, or cancellation,
of a legacy, according to the apparent intention of the testator, implied by the law from acts
done by him in his life, though such acts do not
amount to an express revocation of it. Burnham
v. Comfort, 108 N.Y. 535, 15 N.E. 710.
deemed unworthy, though the causes of removal would not
warrant impeachment. It is not provided for in the Constitution of the United States; and even in those states
where the right exists it is exercised but seldom.
Offense
Not synonym of hazard, but an antonym, and,
as respects gaming and devices, means skillful
60
ADHERENCE
The act by which the testator pays to his legatee, in his
life-time, a general legacy which by his will he had proposed to give him at his death, 1 Rop.Leg. p. 365; and
the act by which a specific legacy has become inoperative
on account of the testator having parted with the subject.
Dillender v. Wilson, 228 Ky. 758, 16 S.W.2d 173, 174.
See Advancement.
ADEO. Lat. So, as. Adeo plene et integre, as
fully and entirely. 10 Coke, 65.
ADEQUATE . OR REASONABLE FACILITIES.
Such railroad facilities as might be fairly demanded, with regard to size of place, extent of
demand for transportation, cost of furnishing additional accommodation asked for, and to all other
facts which would have bearing upon question of
convenience and cost. Kurn v. State, 175 Okl.
379, 52 P.2d 841, 843.
ADEQUATE PREPARATION. Embraces full consultation with accused, interviews with witnesses,
study of facts and law, and determination of character of defense to be made and policy to be followed during trial. Nelson v. Commonwealth,
295 Ky. 641, 175 S.W.2d 132, 133.
ADEQUATE. Sufficient; proportionate; equally
efficient; equal to what is required; suitable to
the case or occasion; satisfactory. Nagle v. City
of Billings, 77 Mont. 205, 250 P. 445, 446. Equal to
some given occasion or work. Nissen v. Miller, 44
N.M. 487, 105 P.2d 324, 326. Commensurate; it
does not mean average or graduation. Vandermade v. Appert, 125 N.J.Eq. 366, 5 A.2d 868, 871.
ADEQUATE PROVOCATION. An adequate provocation to cause a sudden transport of passion
that may suspend the exercise of judgment and
exclude premeditation and a previously formed
design is one that is calculated to excite such
anger as might obscure the reason or dominate
the volition of an ordinary reasonable man. Commonwealth v. Webb, 252 Pa. 187, 97 A. 189, 191.
ADEQUATE CARE. Such care as a man of ordinary prudence would himself take under similar
circumstances to avoid accident; care proportionate to the risk to be incurred. Wallace v. Wilmington & N. R. Co., 8 Houst. (Del.) 529, 18 Atl. 818.
ADEQUATE CAUSE. suffiicient cause for a particular purpose. Pennsylvania & N. Y. Canal & R.
Co. v. Mason, 109 Pa. 296, 58 Am.Rep. 722.
ADEQUATE REMEDY. One vested in the complainant, to which he may at all times resort at
his own option, fully and freely, without let or
hindrance. Wheeler v. Bedford, 7 A. 22, 54 Conn.
244; State ex rel. Heimov v. Thomson, 131 Conn.
8, 37 A.2d 689, 692. Suitable, proportionate, or
sufficient. Fischer v. Damm, 36 Ohio App. 515, 173
N.E. 449, 451.
In criminal law, adequate cause for the passion which
reduces a homicide committed under its influence from the
grade of murder to manslau g hter, means such cause as
would commonly produce a degree of anger, rage, resentment, or terror, in a person of ordinary temper, sufficient
to render the mind incapable of cool reflection. Insulting
words or gestures, or an assault and battery so slight as to
show no intention to inflict pain or injury, or an injury to
property unaccompanied by violence are not adequate
causes. Vollintine v. State, 77 Tex.Cr.R. 522, 179 S.W. 108;
Berry v. State, 157 S.W.2d 650, 652, 143 Tex.Cr.R. 67. See
Adequate Provocation.
A remedy which is plain and complete and as practical
and efficient to the ends of justice and its prompt administration as the remedy in equity. Farmers & Traders
Bank v. Kendrick, 341 Mo. 571, 108 S.W.2d 62, 64.
A remedy that affords complete relief with reference to
the particular matter in controversy, and is appropriate to
the circumstances of the case. State v. Huwe, 103 Ohio St.
546, 134 N.E. 456, 459. A remedy to be adequate, precluding resort to mandamus, must not only be one placing relator in statu quo, but must itself enforce in some way performance of the particular duty. State v. Erickson, 104
Conn. 542, 133 A. 683, 686. Must reach end intended, ane,
actually compel performance of duty in question. Buchanan v. Buchanan, 124 Va. 255, 6 S.E.2d 612, 620. Must be
plain, accurate, certain, speedy, specific, and appropriate
to the particular circumstances, and must also be equally
as convenient, beneficial, and effective as the remedy by
mandamus. Simpson v. Williams Rural High School Dist.,
Tex.Civ.App., 153 S.W.2d 852, 856.
ADEQUATE COMPENSATION. Just value of
property taken under power of eminent domain,
payable in money. Buffalo, etc., R. Co. v. Ferris,
26 Tex. 588. Market value of property when
taken. Louisiana Highway Commission v. Guidry,
176 La. 389, 146 So. 1, 5. It includes interest. Texarkana & Ft. S. Ry. Co. v. Brinkman, Tex.Civ.
App., 288 S.W. 852, 853. It may include the cost or
value of the property to the owner for the purposes for which he designed it. Elbert County v.
Brown, 16 Ga.App. 834, 86 S.E. 651, 656.
Such only as puts injured party in as good a
condition as he would have been in if injury had
not been inflicted. Town of Winchester v. Cox,
129 Conn. 106, 26 A.2d 592, 597.
ADESSE. In the civil law; to be present; the
opposite of abesse. Calvin.
ADEU. Without day, as when a matter is finally
dismissed by the court. Alez adeu, go without
day. Y. B. 5 Edw. II. 173. See Adieu.
ADEQUATE CONSIDERATION. One which is
equal, or reasonably proportioned, to the value of
that for which it is given. 1 Story, Eq.Jur. §§
244-247. One which is not so disproportionate as
to shock our sense of that morality and fair dealing which should always characterize transactions between man and man. U. S. Smelting,
Refining & Milling Co. v. Utah Power & Light Co.,
197 P. 902, 905, 58 Utah, 168. Fair and reasonable
under circumstances. Boulenger v. Morison, 88
Cal.App. 664, 264 P. 256, 259. Reasonably just and
equitable. Laguna Land & Water Co. v. Greenwood, 92 Cal.App. 570, 268 P. 699, 700.
ADFERRUMINATIO. In the civil law, the welding together of iron; a species of adjunctio, (q.
v.). Called also ferruminatio. Mackeld.Rom.Law,
§ 276; Dig. 6, 1, 23, 5.
ADHERENCE. In Scotch law, the name of a form
of action by which the mutual obligation of marriage may be enforced by either party. Bell. It
corresponds to the English action for the restitution of conjugal rights. Wharton.
61
ADHERING
ADHERING. Joining, leagued with, cleaving to;
as, "adhering to the enemies of the United States."
ing i mports that they are so joined or united to
each other that no third object intervenes. Wolfe
v. Hurley, D.C.La., 46 F.2d 515, 521.
"Adhering" consists in giving to the United States the
loyalty due from a citizen. United States v. Stephan, D.C.
Mich., 50 F.Supp. 738, 741.
Any intentional act furthering hostile designs of enemies
of the United States, or an act which intentionally
strengthens or tends to strengthen enemies of the United
States, or which weakens or tends to weaken power of the
United States to resist and attack such enemies, constitutes
"adhering" to such enemies. United States v. Haupt, D.C.
Ill., 47 F.Supp. 836, 839.
Rebels, being citizens: are not "enemies," within the
meaning of the constitution; hence a conviction for treason, in promoting a rebellion, cannot be sustained under
that branch of the constitutional definition which speaks of
"adhering to their enemies, giving them aid and comfort."'
United States v. Greathouse, 2 Abb.U.S. 364, Fed.Cas.No.
15,254.
A word of flexible meaning, depending upon context and
subject matter. U. S. v. Denver & R. G. Ry. Co., D.C.
Colo., 31 F. 886; Johnston v. Davenport Brick & Tile Co.,
D.C.Iowa, 237 F. 668, 669.
Suburbs of city not within limits of another municipality though a long strip of land 10 feet wide connected the
property with city limits. Lefler v. City of Dallas, Tex.
Civ.App., 177 S.W.2d 231, 235.
ADJECTIVE LAW. The aggregate of rules of
procedure or practice. As opposed to that body
of law which the courts are established to administer, (called "substantive law,") it means the
rules according to which the substantive law is
administered. That part of the law which provides a method for enforcing or maintaining
rights, or obtaining redress for their invasion.
Maurizi v. Western Coal & Mining Co., 321 Mo.
378, 11 S.W.2d 268, 272. Holl.Jur. 61,238.
ADHESION. The entrance of another state into
an existing treaty with respect only to a part of
the principles laid down or the stipulations agreed
to. Opp.Int.L. § 533.
Properly speaking, by adhesion the third state
becomes a party only to such parts as are specifically agreed to, and by accession it accepts and
is bound by the whole treaty. See Accession.
ADJOINING. The word in its etymological sense,
means touching or contiguous, as distinguished
from lying near to or adjacent. Broun v. Texas
& N. 0. R. Co., Tex.Civ.App., 295 S.W. 670, 674;
Plainfield-Union Water Co. v. Inhabitants of City
of Plainfield, 84 N.J.Law, 634, 87 A. 448, 450. To
be in contact with; to abut upon. State ex rel.
Boynton v. Bunton, 141 Kan. 103, 40 P.2d 326, 328.
And the same meaning has been given to it when
used in statutes. City of New York v. Alheidt,
151 N.Y.S. 463, 464, 88 Misc. 524. See Adjacent.
ADHIBERE. In the civil law, to apply; to employ; to exercise; to use. Adhibere diligentiam,
to use care. Adhibere vim, to employ force.
ADIATION. A term used in the laws of Holland
for the application of property by an executor.
Wharton.
ADIEU. L. Fr. Without day. A common term
in the Year Books, implying final dismissal from
court.
ADIRATUS. Lost; strayed; a price or value set
upon things stolen or lost, as a recompense to the
owner. Cowell.
ADJOURN. To put off; defer; postpone. To
postpone action of a convened court or body until
another time specified, or indefinitely, the latter
being usually called to adjourn sine die. Bispham
v. Tucker, 2 N.J.L. 253; Reynolds v. Cropsey, 241
N.Y. 389, 150 N.E. 303. To suspend or recess during a meeting which continues in session. Byrd
v. Byrd, 193 Miss. 249, 8 So.2d 510, 512.
Suspending business for a time, delaying. Probably, without some limitation, it would, when used
with reference to a sale on foreclosure, or any
judicial proceeding, properly include the fixing of
the time to which the postponement was made.
Waldrop v. Kansas City Southern Ry. Co., 131
Ark. 453, 199 S.W. 369, 371, L.R.A.1918B, 1081.
ADIT. In mining law, an entrance or approach;
a horizontal excavation used as an entrance to a
mine, or a vent by which ores and water are carried away; an excavation "in and along a lode,"
which in statutes of Colorado and other mining
states is made the equivalent of a discovery shaft.
Electro-Magnetic M. & D. Co. v. Van Auken, 9
Colo. 204, 11 P. 80.
ADJOURNAL. A term applied in Scotch law and
practice to the records of the criminal courts.
The original records of criminal trials were called
"bukis of adiornale," or "books of adjournal,"
few of which are now extant. An "act of adjournal" is an order of the court of justiciary
entered on its minutes.
ADIPOCERE. A waxy substance (chemically
margarate of ammonium or ammoniacal soap)
formed by the decomposition of animal matter
protected from the air but subjected to moisture;
in medical jurisprudence, the substance into which
a human cadaver is converted which has been
buried for a long time in a saturated soil or has
lain long in water.
ADJOURNAMENTUM EST AD DIEM DICERE
SEU DIEM DARE. An adjournment is to appoint
a day or give a day. 4 Inst. 27. Hence the formula "eat sine die."
ADITUS. An approach; a way; a public way.
Co.Litt. 56a.
ADJACENT. Lying near or close to; sometimes,
contiguous; neighboring. Ex parte Jeffcoat, 108
Fla. 207, 146 So. 827. Adjacent implies that the
two objects are not widely separated, though they
may not actually touch, Harrison v. Guilford
County, 218 N.C. 718, 12 S.E.2d 269, while adjoin-
ADJOURNATUR. L. Lat. It is adjourned. A
word with which the old reports very frequently
conclude a case. 1 Ld.Raym. 602; 1 Show. 7; 1
Leon. 88.
62
ADJUDICATION
only of an act of the court. Searight v. Com., 13 S. & R.
Pa. 301. Compare Drinkhouse v. Van Ness, 202 Cal. 359,
260 P. 869, 874 ; People ex rel. Strohsahl v. Strohsahl, 222
N.Y.S. 319, 324, 221 App. Div. 86.
A continuation of the same meeting, and at such
adjourned meeting the governing body can do any
act which might have been done if no adjournment had taken place, and limitations imposed on
governing body as regards action at original meeting obtain at adjourned meeting. Vogel v. Parker,
118 N.J.L. 521, 193 A. 817, 818. One ordered by
board at regular meeting, and which is to convene after termination of such regular meeting
and prior to next regular meeting. Byrd v. Byrd,
193 Miss. 249, 8 So.2d 510, 513.
ADJUDICATAIRE. In Canadian law, a purchaser
at a sheriff's sale. See 1 Low.Can. 241; 10 Low.
Can. 325.
ADJUDICATE. To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense. United
States v. Irwin, 8 S.Ct. 1033, 127 U.S. 125, 32 L.Ed.
99; Street v. Benner, 20 Fla. 700.
ADJOURNED SUMMONS. A summons taken out
in the chambers of a judge, and afterwards taken
into court to be argued by counsel.
ADJUDICATEE. In French and civil law, the
purchaser at a judicial sale. Brent v. New Orleans, 6 So. 793, 41 La.Ann. 1098.
ADJOURNED TERM. In practice, a continuance,
by adjournment, of a regular term. Harris v.
Gest, 4 Ohio St. 473; Kingsley v. Bagby, 2 Kan.
App. 23, 41 P. 991. Distinguished from an "additional term," which is a distinct term. Harris v.
Gest, 4 Ohio St. 473; Kingsley v. Bagby, 2 Kan.
App. 23, 41 P. 991. A continuation of a previous
or regular term; the same term prolonged, wherein power of court over business which has been
done, and the entries made at the regular term,
continues. Van Dyke v. State, 22 Ala. 57; Carter
v. State, 14 Ga.App. 242, 80 S.E. 533, 534.
ADJUDICATIO. In the civil law, an adjudication.
The judgment of the court that the subject-matter
is the property of one of the litigants; confirmation of title by judgment. Mackeld.Rom.Law, §
204.
ADJUDICATION. The giving or pronouncing a
judgment or decree in a cause; also the judgment
given. People ex rel. Argus Co. v. Hugo, 168 N.Y.
S. 25, 27, 101 Misc. 481. Or the entry of a decree
by a court in respect to the parties in a case.
Samuel Goldwyn, Inc., v. United Artists Corporation, C.C.A.Del., 113 F.2d 703, 706.
ADJOURNMENT. A putting off or postponing of
business or of a session until another time or
place; the act of a court, legislative body, public
meeting, or officer, by which the session or assembly is dissolved, either temporarily or finally, and
the business in hand dismissed from consideration, either definitely or for an interval. If the
adjournment is final, it is said to be sine die. See
Johnson City v. Tennessee Eastern Electric Co.,
133 Tenn. 632, 182 S.W. 587, 589.
In the civil law a calling into court; a summoning at an appointed time. Due Cange.
It implies a hearing by a court, after notice, of legal
evidence on the factual issue involved. Genzer v. Fillip,
Tex.Civ.App., 134 S.W.2d 730, 732. The equivalent of a
"determination." Campbell v. Wyoming Development Co.,
55 Wyo. 347, 100 P.2d 124, 132. And contemplates that the
claims of all the parties thereto have been considered and
set at rest. Miller v. Scobie, 152 Fla. 328, 11 So.2d 892, 894.
The term is principally used in bankruptcy proceedings,
the adjudication being the order which declares the debtor
to be a bankrupt. First Nat. Bank v. Pothuisje, 217 Ind. 1,
25 N.E.2d 436, 438, 130 A.L.R. 1238.
French Law
A sale made at public auction and upon competition. Adjudications are voluntary, judicial, or
administrative. Duverger.
ADJOURNMENT DAY. A further day appointed
by the judges at the regular sittings at nisi prius
to try issue of fact not then ready for trial.
ADJOURNMENT DAY IN ERROR. In English
practice, a day appointed some days before the
end of the term at which matters left undone on
the affirmance day are finished. 2 Tidd, Pr. 1176.
Scotch Law
A species of diligence, or process for transferring the estate of a debtor to a creditor, carried on as an ordinary action before the court of
session. A species of judicial sale, redeemable by
the debtor. A decreet of the lords of session, adjudging and appropriating a person's lands, hereditaments, or any heritable right to belong to his
creditor, who is called the "adjudger," for payment
or performance. Bell; Ersk.Inst. c. 2, tit. 12, §§
39-55; Forb.Inst. pt. 3, b. 1, c. 2, tit. 6.
ADJOURNMENT IN EYRE. The appointment of
a day when the justices in eyre mean to sit again.
Cowell; Spelman.
ADJOURNMENT SINE DIE. An adjournment
without setting a time for another meeting or session. See Sine Die.
ADJUDGE. To pass on judicially, to decide, settle, or decree, or to sentence or condemn. People
v. Rave, 364 Ill. 72, 3 N.E.2d 972, 975.
Adjudication contra hreditatem jacentem. When
a debtor's heir apparent renounces the succession,
any creditor may obtain a. decree cognitionis
causel, the purpose of which is that the amount of
the debt may be ascertained so that the real estate
may be adjudged.
Judgment of a court of competent jurisdiction; equivalent of convicted and sentenced. In re Tarlo's Estate, 315
Pa. 321, 172 A. 139, 140. Implies a judicial determination
of a fact, and the entry of a judgment. Department of
Banking v. Hedges, 136 Neb. 382, 286 N.W. 277, 283. Does
not mean the same as deemed contra, under statute,
State v. District Court, 64 Mont. 181, 208 P. 952, 955.
Blaufus v. People, 69 N.Y. 107, 25 Am.Rep. 148. Predicated
Adjudication in bankruptcy. See Bankruptcy.
63
ADJUDICATION
Adjudication in implement. An action by a grantee against his grantor to compel him to complete the title.
ADJUNCT. Something added to another. New
York Trust Co. v. Carpenter, C.C.A.Ohio, 250 F.
668, 672.
An additional judge sometimes appointed in the
Court of. Delegates, q. v.
ADJUNCTIO. In the civil law, adjunction; a
species of accessio, whereby two things belonging to different proprietors are brought into firm
connection with each other; such as interweaving,
(intertextura); welding together, (adferruminatio); soldering together, (applumbatura); painting, (pictura); writing, (scriptura); building,
(inadificatio); sewing, (ratio) ; and planting,
Inst. 2, 1, 26-34; Dig. 6, 1, 23;
(plantatio).
Mackeld.Rom.Law, § 276. See Accessio.
ADJUNCTION. In civil law, the attachment or
union permanently of a thing belonging to one
person to that belonging to another. This union
may be caused by inclusion, as if one man's diamond be set in another's ring, or by soldering,
sewing, construction, writing, or painting.
The common law implicitly adopts the civil law
doctrines. See 2 Bla.Com. 404. See Accession.
One associated with another in a subordinate
or an auxiliary manner; an associate.
Co. v. Macht, 89 Ind.App. 59, 165 N.E. 766. One
who makes any adjustment or settlement. Popa
v. Northern Ins. Co., 192 Mich. 237, 158 N.W. 945,
946, or who determines the amount of a claim, as
a claim against an insurance company. Samchuck v. Insurance Co. of North America, 99 Or.
565, 194 P. 1095. He is a special agent for the
person or company for whom he acts. Bond v.
National Fire Ins. Co., 77 W.Va. 736, 88 S.E. 389,
394; Howe v. State Bar of California, 212 Cal.
222, 298 P. 25, 27. Compare Manheim v. Standard
Fire Ins. Co. of Hartford, Conn., 84 Wash. 16, 145
P. 992.
ADJUSTMENT. An arrangement; a settlement.
Henry D. Davis Lumber Co. v. Pacific Lumber
Agency, 220 P. 804, 805, 127 Wash. 198.
In the law of insurance, the adjustment of a loss is the
ascertainment of its amount and the ratable distribution
of it among those liable to pay it; the settling and ascertaining the amount of the indemnity which the assured,
after all allowances and deductions made, is entitled to receive under the policy, and fixing the proportion which
each underwriter is liable to pay. Marsh.Ins. 4th Ed. 499;
2 Phil.Ins. §§ 1814, 1815; New York v. Insurance Co., 39
N.Y. 45, 100 Am. Dec. 400; Whipple v. Insurance Co., 11 R.
I. 139.
ADJUTANT GENERAL. The term "civil adjutant general" is used as one of convenience merely to designate state adjutant general who has
not been officially recognized by War Department.
People v. Newlon, 77 Colo. 516, 238 P. 44, 47.
ADJUVARI QUIPPE NOS, NON DECIPI, BENEFICIO OPORTET. We ought to be favored, not
injured by that which is intended for our benefit.
(The species of bailment called "loan" must be
to the advantage of the borrower, not to his detriment.) Story, Bailm. § 275. See 8 El. & Bl. 1051.
ADJUNCTS. Additional judges sometimes appointed in the Court of Delegates, q. v. See Shelford, Lun. 310; 1 Hagg.Eccl.Rep. 384; 2 Id. 84;
3 id. 471.
ADJUNCTUM ACCESSORIUM. An accessory or
appurtenance.
ADLAMWR. In Welsh law, a proprietor who, for
some cause, entered the service of another proprietor, and left him after the expiration of a year
and a day. He was liable to the payment of 30
pence to his patron. Wharton.
ADJURATION. A swearing or binding upon oath.
ADJUST. To settle or arrange; to free from
differences or discrepancies; to bring to satisfactory state so that parties are agreed, as to adjust amount of loss by fire. Western Loggers' Machinery Co. v. National Union Fire Ins. Co., 136
Or. 549, 299 P. 311, 312. Controversy to property
or estate, In re Sidman's Estate, 278 N.Y.S. 43,
154 Misc. 675. To bring to proper relations; to
settle; Jeff Davis County v. Davis, Tex.Civ.App.,
192 S.W. 291, 295. To determine and apportion an
amount due. Flaherty v. Insurance Co., 46 N.Y.S.
934, 20 App.Div. 275. Accounts are adjusted when
they are settled and a balance struck. Townes v.
Birchett, 12 Leigh Va. 173, 201. It is sometimes
used in the sense of pay. See Lynch v. Nugent,
80 Iowa, 422, 46 N.W. 61. When used in reference
to a liquidated claim, Combination Oil & Gas Co.
v. Brady, Tex.Civ.App., 96 S.W.2d 415, 416.
ADLEGIARE. To purge one's self of a crime by
oath.
ADMANUENSIS. A person who swore by laying
his hands on the book.
ADMEASUREMENT. Ascertainment by measure;
measuring out; assignment or apportionment by
measure, that is, by fixed quantity or value, by
certain limits, or in definite and fixed proportions.
ADMEASUREMENT OF DOWER. In practice, a
remedy which lay for the heir on reaching his
majority to rectify an assignment of dower made
during his minority, by which the doweress had
received more than she was legally entitled to. 2
Bl.Comm. 136; Gilb. Uses, 379.
ADJUSTED COST BASIS. For income tax purposes, original cost plus additions to capital less
depreciation results in the "adjusted cost basis."
Herder v. Helvering, 106 F.2d 153, 162, 70 App.D.
C. 287.
ADJUSTER. One appointed to adjust a matter, to
ascertain or arrange or settle. Commercial Credit
The remedy is of rare occurrence. Jones v. Brewer, 1
Pick. (Mass.) 314; McCormick v. Taylor, 2 Ind. 336. In
some of the states the statutory proceeding enabling a
widow to compel the assignment of dower is called "admeasurement of dower."
ADMEASUREMENT OF PASTURE. In English
law, a writ which lay between those that have
64
ADMINISTRATION
To apply, as medicine or a remedy; to give, as
a dose or something beneficial or suitable. Barfield v. State, 71 Okl.Cr. 195, 110 P.2d 316, 317. To
cause or procure a person to take some drug or
other substance into his or her system; to direct
and cause a medicine, poison, or drug to be taken
into the system. State v. Jones, 4 Pennewill
( Del.) 109, 53 Atl. 861; McCaughey v. State, 156
Ind. 41, 59 N.E. 169.
Neither fraud nor deception is a necessary ingredient in the act of administering poison. To
force poison into the stomach of another; to compel another by threats of violence to swallow
poison; to furnish poison to another for the purpose and with the intention that the person to
whom it is delivered shall commit suicide therewith, and which poison is accordingly taken by
the suicide for that purpose; or to be present at
the taking of poison by a suicide, participating in
the taking thereof, by assistance, persuasion, or
otherwise,—each and all of these are forms and
modes of "administering" poison. Blackburn v.
State, 23 Ohio St. 146.
common of pasture appendant, or by vicinage, in
cases where any one or more of them surcharges
the common with more cattle than they ought.
Bract. fol. 229a; 1 Crabb, Real Prop. p..318, §
358. The remedy is now abolished in England; 3
Sharsw.Bla.Com. 239, n.; and in the United States;
3 Kent 419.
ADMEASUREMENT, WRIT OF. It lay against
persons who usurped more than their share, in
the two following cases: Admeasurement of dower, and admeasurement of pasture. Termes de
la Ley.
ADMENSURATIO. In old English law, admeasurement. Reg.Orig. 156, 157.
ADMEZATORES. In old Italian law, persons
chosen by the consent of contending parties, to
decide questions between them. Literally, mediators. Spelman.
ADMINICLE. Used as an English word in the
statute of 1 Edw. IV, c. 1, in the sense of aid, or
support.
In civil law, imperfect proof. Merl. Rêpert.
See Adminiculum.
ADMINISTRATION. Managing or conduct of an
office or employment; the performance of the executive duties of an institution, business, or the
like. Webb v. Frohmiller, 52 Ariz. 128, 79 P.2d
510.
In public law, the administration of government means the practical management and direction of the executive department, or of the public
machinery or functions, or of the operations of
the various organs of the sovereign; direction or
oversight of any office, service, or employment.
Greene v. Wheeler, C.C.A.Wis., 29 F.2d 468, 469.
The term "administration" is also conventionally
applied to the whole class of public functionaries,
or those in charge of the management of the executive department. House v. Creveling, 147 Tenn.
589, 250 S.W. 357, 358.
In Scotch law, an aid or support to something
else. A collateral deed or writing, referring to
another which has been lost, and which it is in
general necessary to produce -before the tenor of
the lost deed can be proved by parol evidence.
Ersk.Inst. b. 4, tit. 1, § 55.
ADMINICULAR. Auxiliary or subordinate to.
"The murder would be adminicular to the robbery," (i. e., committed to accomplish it.) The
Marianna Flora, 3 Mason, 121, Fed.Cas.No.9080.
ADMINICULAR EVIDENCE. Auxiliary or supplementary evidence; such as is presented for the
purpose of explaining and completing other evidence. (Chiefly used in ecclesiastical law)
ADMINISTRATION EXPENSE. "Administrative
expenses" imply disbursements incidental to the
management of the estate for which credit would
be allowed on a voucher. In re Hooker's Estate,
18 N.Y.S.2d 107, 112, 173 Misc. 515. Those deductible in computing estate tax are merely charges
which are proper deductions and in ordinary
course of administration will ultimately be allowed. Bourne v. U. S., Ct.C1., 2 F.Supp. 228, 231.
ADMINICULATE. To give adminicular evidence.
ADMINICULATOR. An officer in the Romish
church, who administered to the wants of widows,
orphans, and afflicted persons. Spelman.
ADMINICULUM. Lat. An adminicle; a prop or
support; an accessory thing. An aid or support
to something else, whether a right or the evidence
of one. It is principally used to designate evidence adduced in aid or support of other evidence,
which without it is imperfect. Brown.
ADMINISTRATION OF ESTATES. Supervision
by an executor or administrator. Peterson v.
Demmer, D.C.Tex., 34 F.Supp. 697, 700. Management of estate by independent executrix. Palfrey
v. Harborth, Tex.Civ.App., 158 S.W.2d 326, 327.
Normally involves the collection, management,
and distribution of estate, including legal proceedings necessary to satisfy claims of creditors, next
of kin, legatees, or whatever other parties may
have any claim to property of a deceased person.
Hawley v. Hawley, 114 F.2d 745, 748, 72 App.D.C.
376.
ADMINISTER. To manage or conduct. Glocksen
v. Holmes, 299 Ky. 626, 186 S.W.2d 634, 637. To
discharge the duties of an office; to take charge
of business; to manage affairs; to serve in the
conduct of affairs, in the application of things to
their uses; to settle and distribute the estate of a
decedent. Hunter v. City of Louisville, 208 Ky.
562, 271 S.W. 690, 691.
Also, to give, as an oath; to direct or cause to
be taken. Gilchrist v. Comfort, 34 N.Y. 239; Brinson v. State, 89 Ala. 105, 8 So. 527; State v.
Van Wormer, 103 Kan. 309, 173 P. 1076, 1081.
Black's Law Dictionary Revised 4th Ed.-5
The management and settlement of the estate of an intestate, or of a testator who has no executor, performed
under the supervision of a court, by a person duly qualified
65
ADMINISTRATION
and legajly appointed, and usually involving (1) the collection of the decedent's assets; (2) payment of debts and
claims against him and expenses; (3) distributing the remainder of the estate among those entitled thereto.
The term is applied broadly to denote the management
of an estate by an executor, and also the management of
estates of minors, lunatics, etc., in those cases where trustees have been appointed by authority of law to take
charge of such estates in place of the legal owners. Bouvier; Crow v. Hubard, 62 Md. 565.
Administration is principally of the following kinds, viz.
Ad colligendum bona defuncti. To collect the goods of
the deceased. Special letters of administration granted to
one or more persons, authorizing them to collect and preserve the goods of the deceased, are so called. 2 Bl.Comm.
5Q5; 2 Steph.Comm. 241. These are otherwise termed
"letters ad colligendum," and the party to whom they are
granted, a "collector."
An administrator ad colligendum is the mere agent or
officer of the court to collect and preserve the goods of
the deceased until some one is clothed with authority to
administer them, and cannot complain that another is appointed administrator in chief. Flora v. Mennice, 12 Ala.
836.
Ancillary administration is auxiliary and subordinate to
the administration at the place of the decedent's domicile;
it may be taken out in any foreign state or country where
assets are locally situated, and is merely for the purpose
of collecting such assets and paying debts there.
Cum testamento annexo. Administration with the will
annexed. Administration granted in cases where a testator
makes a will, without naming any executors ; or where
the executors who are named in the will are incompetent
to act, or refuse to act; or in case of the death of the
executors, or the survivor of them. 2 Bl.Comm. 503, 504.
De bonis non. Administration of the goods not administered. Administration granted for the purpose of administering such of the goods of a deceased person as were
not administered by the former executor or administrator.
Tucker v. Horner, 10 Phila.Pa. 122.
De bonis non cum testamento annexo. That which is
granted when an executor dies leaving a part of the estate unadministered. Clemens v. Walker, 40 Ala. 189.
Durante absentia. That which is granted during the absence of the executor and until he has proved the will.
Durante minori cetate. Where an infant is made executor; in which case administration with will annexed is
granted to another, during the minority of such executor,
and until he shall attain his lawful age to act. See Godo.
102.
Foreign administration. That which is exercised by virtue of authority properly conferred by a foreign power.
Administration during the suit. AdPendente lite.
ministration granted during the pendency of a suit touching the validity of a will. 18 N.J.Law, 15, 20.
Public administration is such as is conducted (in some
jurisdictions) by an officer called the public administrator,
who is appointed to administer in cases where the intestate has left no person entitled to apply for letters.
General administration. The grant of authority to administer upon the entire estate of a decedent, without restriction or limitation, whether under the intestate laws or
with the will annexed. Clemens v. Walker, 40 Ala. 198.
Special administration. Authority to administer upon
some few particular effects of a decedent, as opposed to
authority to administer his whole estate. In re Senate Bill,
12 Colo. 193, 21 P. 482.
Letters of Administration. The instrument by which an
administrator or administratriX is authorized by the probate court, surrogate, or other proper officer, to have the
charge and administration of the goods and chattels of an
intestate. See Mutual Ben. L. Ins. Co. v. Tisdale, 91 U.S.
243, 23 L.Ed. 314.
ADMINISTRATION SUIT. In English practice, a
suit brought in chancery, by any one interested,
for administration of a decedent's estate, when
there is doubt as to its solvency. Stimson.
66
ADMINISTRATIVE. Connotes of or pertains to
administration, especially management, as by
managing or conducting, directing . , or superintending, the execution, application, or conduct of persons or things. Fluet v. McCabe, Mass., 299
Mass. 173, 12 N.E.2d 89, 93. Particularly, having
the character of executive or ministerial action.
Mauritz v. Schwind, Tex.Civ.App., 101 S.W.2d
1085, 1090. In this sense, administrative functions or acts are distinguished from such as are
judicial. People v. Austin, 46 N.Y.Supp. 526, 20
App.Div. 1. Synonymous with "executive." Sheely
v. People, 54 Colo. 136, 129 P. 201, 202; Saint v.
Allen, 126 So. 548, 555, 169 La. 1046. An administrative act concerns daily affairs as distinguished from permanent matters. People v.
Graham, 70 Colo. 509, 203 P. 277, 278.
ADMINISTRATIVE ACTS. Acts of an officer
which are to be deemed as acts of administration.
and are commonly called "administrative acts"
and classed among those governmental powers
properly assigned to the executive department,
'are those acts which are necessary to be done to
carry out legislative policies and purposes already
declared by the legislative body or such as are
devolved upon it by the organic law of its existence. Ex parte McDonough, 27 Cal.App.2d 155,
80 P.2d 485, 487.
ADMINISTRATIVE AGENCY. An agency of the
sovereign power charged with administering particular legislation. Examples are compensation
and industrial commissions, Joseph H. Weiderhoff, Inc., v. Neal, D.C.Mo., 6 F.Supp. 798, 799;
Federal Trade Commission, Hastings Mfg. Co.
v. Federal Trade Commission, 153 F.2d 253, certiorari denied 66 S.Ct. 1344, 328 U.S. 853, 90 L.Ed.
1626; tax commissions, First State Bank of Mountainair v. State Tax Commission, 59 P.2d 667, 40
N.M. 319; public service commissions, New York
Cent. R. Co. v. Public Service Commission, 7 N.E.
2d 957, 212 Ind. 329; and the like.
ADMINISTRATIVE BOARD. The term is very
broad and includes bodies exercising varied functions, some of which involve orders made or
other acts done ex parte or without full hearing
as to the operative facts, while others are done
only after such a notice and hearing, and the
functions of the former kind are plainly "administrative" and those of the latter are "quasi judicial". Beaverdale Memorial Park v. Danaher,
127 Conn. 175, 15 A.2d 17, 21.
"Administrative boards" differ from "courts" in that
boards frequently represent public interests entrusted to
boards, whereas courts are concerned with litigating
rights of parties with adverse interests. Rommell v.
Walsh, 15 A.2d 6, 9, 127 Conn. 16.
ADMINISTRATIVE DISCRETION. "Administrative discretion" means that the doing of acts or
things required to be done may rest, in part at
least, upon considerations not entirely susceptible
of proof or disproof and at times which considering the circumstances and subject-matter cannot
be supplied by the Legislature, and a statute confers such discretion when it refers a commission
or officer to beliefs, expectations, or tendencies
ADMIRAL
Civil Law
A manager or conductor of affairs, especially
the affairs of another, in his name or behalf. A
manager of public affairs in behalf of others.
Calvin. A public officer, ruler, or governor. Nov.
95, gl.; Cod. 12, 8.
Domestic
One appointed at the place of the domicile of
the decedent; distinguished from a foreign or an
ancillary administrator.
instead of facts for the exercise of the powers
conferred. Culver v. Smith, Tex.Civ.App., 74 S.
W.2d 754, 757.
ADMINISTRATIVE LAW. That branch of public law which deals with the various organs of
the sovereign power considered as in motion, and
prescribes in detail the manner of their activity,
being concerned with such topics as the collection
of the revenue, the regulation of the military and
naval forces, citizenship and naturalization, sanitary measures, poor laws, coinage, police, the
public safety and morals, etc. See Holl.Jur. 305307.
Foreign
One appointed or qualified under the laws of a
foreign state or country, where the decedent was
domiciled.
Public
An official provided for by statute in some states
to administer upon the property of intestates in
certain cases. See Rocca v. Thompson, 32 S.Ct.
207, 223 U.S. 317, 56 L.Ed. 453.
ADMINISTRATIVE OFFICER. Politically and as
used in constitutional law, an officer of the executive department of government, and generally one
of inferior rank; legally, a ministerial or executive officer, as distinguished from a judicial officer. People v. Salsbury, 134 Mich. 537, 96 N.W.
936.
One who performs mere ministerial or administrative
functions. In re Gold, C.C.A.N.J., 93 F.2d 676, 680. Officers that are neither judicial nor legislative; executive
officers, Spivey v. State, 104 P.2d 263, 277, 69 Okl.Cr. 397.
Such as: The clerk of circuit court, State ex rel. and to
Use of City of St. Louis v. Priest, 348 Mo. 37, 152 S.W.2d
109, 112. Receivers in bank liquidation proceedings, People
ex rel. Nelson v. Crawford State Sa y . Bank, 310 Ill.App.
533, 34 N.E.2d 872. State highway commissioner, Strobel
Steel Const. Co. v. Sterner, 125 N.J.L. 622, 18 A.2d 28, 29.
ADMINISTRATOR CUM TESTAMENTO ANNEXO. See Cum Testamento Annexo.
ADMINISTRATOR DE BONIS NON. "Administrators de bonis non administratis" are, as the
term signifies, persons appointed by the court of
probate to administer on the effects of a decedent
which have not been included in a former administration. Paul v. Butler, 129 Kan. 244, 282 P.
732, 734.
ADMINISTRATIVE REMEDY. One not judicial,
but provided by commission or board created by
legislative power. Kansas City Southern R. Co.
v. Ogden Levee Dist., C.C.A.Ark., 15 F.2d 637,
642. Against wrongful assessment of benefits by
a levee district. Board of Directors of St. Francis
Levee Dist. v. St. Louis-San Francisco Ry. Co.,
C.C.A.Ark., 74 F.2d 183, 188.
Where will is set aside as void, administrator subsequently appointed is not "administrator de bonis non,"
but administrator of entire estate with power to attack
nominated executor's report. Douglas' Adm'r v. Douglas'
Ex'r, 48 S.W.2d 11, 14, 243 Ky. 321.
ADMINISTRATOR WITH WILL ANNEXED. One
appointed administrator of deceased's estate after
executors named in will refused to act. In re
Kenney's Estate, 41 N.M. 576, 72 P.2d 27, 29, 113
A.L.R. 403.
ADMINISTRATOR, in the most usual sense of
the word, is a person to whom letters of administration, that is, an authority to administer the
estate of a deceased person, have been granted
by the proper court. A representative of limited
authority, whose duties are to collect assets of
estate, pay its debts, and distribute residue to
those entitled. Smith v. White's Estate, 108 Vt.
473, 188 A. 901, 904. A technical trustee. In re
Watkins' Estate, Vt., 41 A.2d 180, 188.
He resembles an executor, but, being appointed
by the court, and not by the deceased, he has to
give security for the due administration of the
estate, by entering into a bond with sureties, called the administration bond. Smith v. Gentry, 16
Ga. 31; Collamore v. Wilder, 19 Kan. 78; Gormley v. Watson, 177 Ga. 763, 171 S.E. 280, 281.
ADMINISTRATRIX. A woman who administers,
or to whom letters of administration have been
granted.
ADMINISTRAVIT. Lat. He has administered.
Used in the phrase plene administravit, which is
the name of a plea by an executor or administrator to the 'effect that he has "fully administered"
(lawfully disposed of) all the assets of the estate
that have come to his hands.
ADMIRAL. Title of high naval officers; they
are of various grades,—rear admiral, vice-admiral,
admiral, admiral of the fleet, the last named
being the highest. But by Act of Jan. 24, 1873 (17
Stat. 418), certain grades ceased to exist when
the offices became vacant.
In old English law, a high officer or magistrate that had the government of the king's navy,
and the hearing of all causes belonging to the sea.
Cowell.
In European law, an officer who presided over
the admiralitas, or collegium ammiralitatis. Locc.
de Jur.Mar. lib. 2, c. 2, § 1.
By the law of Scotland the father is what is called
the "administrator-in-law" for his children. As such, he
is ipso jure their tutor while they are pupils, and their
curator during their minority. The father's power extends over whatever estate may descend to his children,
unless where that estate has been placed by the donor or
grantor under the charge of special trustees or managers.
This power in the father ceases by the child's discontinuing to reside with him, unless he continues to live at the
father's expense; and with re g ard to dnu-hte-s, it ceases
on their marriage, the husband being the legal curator of
his wife. Bell.
67
ADMIRALITAS
ADMIRALITAS. L. Lat. Admiralty; the admiralty, or court of admiralty.
In European law, an association of private
armed vessels for mutual protection and defense
against pirates and enemies
Admitting to bail is a judicial act to be performed by a
court or judicial officer, Trevathan v. Mutual Life Ins. Co.
of New York, 166 Or. 515, 113 P.2d 621, 624; and by "al-.
lowing bail" or "admitting to bail" is not meant the
formal justification, subscription, or acknowledgment by
the sureties, the term first mentioned relating to the order
determining that the offense is bailable and fixing the
amount of undertaking, and "taking the bail': meaning the
final acceptance or approval of it by the court. Clatsop
County v. Wuopio, 95 Or. 30, 186 P. 547.
ADMIRALTY. A court which has a very extensive jurisdiction of maritime causes, civil and
criminal, controversies arising out of acts done
upon or relating to the sea, and questions of
prize.
It is properly the successor of the consular courts, which
English Ecclesiastical Law
The act of the bishop, who, on approval of the
clerk presented by the patron, after examination,
declares him fit to serve the cure of the church
to which he is presented, by the words "admitto
to habilem," I admit thee able. 1 Crabb, Real
Prop. p. 138, § 123.
were emphatically the courts of merchants and sea-going
persons, established in the principal maritime cities on the
revival of commerce after the fall of the Western Empire,
to supply the want of tribunals that might decide causes
arising out of maritime commerce.
Also, the system of jurisprudence relating to
and growing out of the jurisdiction and practice
of the admiralty courts.
Immigration Laws
Authorities accepting alien seaman into body of
our inhabitants as possible resident. U. S. ex rel.
Georgas v. Day, C.C.A.N.Y., 43 F.2d 917, 919.
American Law
A tribunal exercising jurisdiction over all maritime contracts, torts, injuries, or offenses. Panama R. Co. v. Johnson, 44 S.Ct. 391, 264 U.S. 375,
68 L.Ed. 748.
Membership in Corporation
The act of a corporation or company by which
an individual acquires the rights of a member of
such corporation or company.
"Admiralty" does not extend to all navigable waters, but
is limited to the ocean, navigable rivers running into the
ocean, and the Great Lakes and their connections. The
Frank G. Fobert, D.C.N.Y., 32 F.Supp. 214, 216.
The jurisdiction of the admiral, and the administration
of the admiralty law proper—the local maritime law—as
it became a judicial function, has passed into the hands of
the courts. Renew v. U. S., D.C.Ga., 1 F.Supp. 256, 259.
Practice as Attorney at Law
The act by which attorneys and counsellors become recognized as officers of the court and are
allowed to practice.
English Law
The court of the admiral, perhaps erected by
Edward III, 3 Bla.Comm. 69, or as early , as the
time of Henry I.
The building where the lords of the admiralty
transact business.
Testimony or Evidence
Admission or concession by a party in pleading
or as evidence. See Admissions.
ADMISSIONALIS. In European law. An usher.
Spelman.
ADMIRALTY, FIRST LORD OF THE. The normal head of the executive department of state
which presides over the naval forces of the kingdom is the lord high admiral, but in practice the
functions of the great office are discharged by several Lords Commissioners, of whom one, being
the chief, is called the "First Lord," and is a member of the Cabinet. He is assisted by other lords,
called Sea Lords, and by various secretaries.
ADMISSIONS. Confessions, concessions or voluntary acknowledgments made by a party of the
existence of certain facts. Roosevelt v. Smith, 40
N.Y.S. 381, 17 Misc. 323. More accurately regarded, they are statements by a party, or some one
identified with him in legal interest, of the existence of a fact which is relevant to the cause of
his adversary. Brooks v. Sessoms, 171 S.E. 222,
223, 47 Ga.App. 554. They are against the interest
of the party making them. Little Fay Oil Co. v.
Stanley, 90 Okl. 265, 217 P. 377, 378.
ADMISSIBLE. Pertinent and proper to be considered in reaching a decision. Used with reference to the issues to be decided in any judicial
proceeding.
As applied to evidence, the term means that it is
of such a character that the court or judge is
bound to receive it; that is, allow it to be introduced.
It is not essential that an "admission" be contrary to
interest of party at time it is made; it is enough if it be
inconsistent with position which party takes either in
pleadings or at trial. Harvey v. Provandie, 83 N.H. 236,
141 A. 136, 140.
The term "admission" is usually applied to civil transactions and to those matters of fact in criminal cases which
do not involve criminal intent, while the term "confession"
is generally restricted to acknowledgments of guilt. People v. Sourisseau, 62 Cal.App.2d 917, 145 P.2d 916, 923.
State v. Lindsey, 26 N.M. 526, 194 P. 877, 878.
ADMISSION.
Bail
The order of a competent court or magistrate
that a person accused of crime be discharged from
actual custody upon the taking of bail. People v.
Solomon, 15 Pac. 4, 5 Utah, 277.
An "admission" as applied in criminal cases is
the avowal of a fact or of circumstances from
which guilt may be inferred, but only tending to
prove the offense charged, and not amounting to
a confession of guilt. Theis v. State, Ga., 164 S.
68
ADM'R
.
E. 456, 457. A statement by defendant of fact or
facts pertinent to issues tending, in connection
with proof of other facts or circumstances, to
prove guilt, but which is, of itself, insufficient to
authorize conviction. Commonwealth v. Elliott,
292 Pa. 16, 140 A. 537, 538. Does not include
statements which are part of the res gestw. State
v. Clark, 102 Mont. 432, 58 P.2d 276, 278.
Direct, called also express, admissions are those which
are made in direct terms.
Implied admissions are those which result from some act
or failure to act of the party. Part payment of a debt is an
admission of liability to pay debt. Hart v. Deshong, Del.,
1 Terry 218, 8 A.2d 85, 87. Defendants' failure to specifically deny their signatures to notes, "admission" that they
signed the acknowledgments. Haas v. Johnson, 203 La.
697, 14 So.2d 606, 608. Undenied accusations were implied
"admission". State v. Postal, 215 Minn. 427, 10 N.W.2d
373, 378.
Incidental admissions are those made in some other connection, or involved in the admission of some other fact.
Judicial admissions are those made in court by a person's attorney for the purpose of being used as a substitute
for the regular legal evidence of the facts at the trial.
Martin v. State, 46 Okl.Cr. 411, 287 P. 424. Such as are
made voluntarily by a party, which appear of record in the
proceedings of the court. Formal acts done by a party or
his attorney in court on the trial of a cause for the purpose
of dispensing with proof by the opposing party of some
fact claimed by the latter to be true. Wiley v. Rutland R.
Co., 86 Vt. 504, 86 A. 808, 810. Concession by defendant
that she had executed a bill of sale for the automobile to
intervener to secure an indebtedness was an "admission
in judicio" by defendant against her title to the automobile. McDay v. Long, 63 Ga.App. 421, 11 S.E.2d 395, 399.
But opening statements of counsel are not, technically,
"admissions." Wilkey v. State ex rel. Smith, 238 Ala. 595,
192 So. 588, 591. See Acquiescence; Quasi-Admissions;
True Admission.
Pleading
The acknowledgment or recognition by one party of the truth of some matter alleged by the
opposite party, made in a pleading, the effect of
which is to narrow the area of facts or allegations
required to be proved by evidence. Connecticut
Hospital v. Brookfield, 69 Conn. 1, 36 A. 1017.
Confess. Provident Life & Accident Ins. Co. v.
Fodder, 99 Ind.App. 556, 193 N.E. 698, 700. Unequivocal acknowledgment of guilt. Ex parte
Tozier, D.C.Me., 2 F.2d 268, 269. See Admission;
Admissions.
ADMITTANCE. In English law, the act of giving
possession of a copyhold estate. It is of three
kinds: (1) Upon a voluntary grant by the lord,
where the land has escheated or reverted to him.
(2) Upon surrender by the former tenant. (3)
Upon descent, where the heir is tenant on his
ancestor's death. 2 Bla.Comm. 366.
ADMITTENDO CLERICO. An old English writ
issuing to the bishop to establish the right of the
Crown to make a presentation to a benefice. A
writ of execution upon a right of presentation to a
benefice being recovered in quare impedit, addressed to the bishop or his metropolitan, requiring him to admit and institute the clerk or presentee of the plaintiff. Reg.Orig. 33a.
ADMITTENDO IN SOCIUM. A writ for associating certain persons, as knights and other
gentlemen of the county, to justices of assize on
the circuit. Reg.Orig. 206.
ADMIXTURE. A substance formed by mixing;
state of being mixed; act of mixing.
ADMONISH. To caution or advise. People v.
Pennington, 267 Ill. 45, 10 7 N.E. 871, 872. To
counsel against wrong practices, or to warn
against danger of an offense. Ft. Smith Light &
Traction Co. v. Hendrickson, 126 Ark. 377, 189 S.
W. 1064, 1067.
ADMONITION. A reprimand from a judge to a
person accused, on being discharged, warning him
of the consequences of his conduct, and intimating
to him that, should he be guilty of the same fault
for which he has been admonished, he will be
punished with greater severity. Merlin, Repert.
The admonition was authorized as a species of
punishment for slight misdemeanors. In ecclesiastical law, this is the lightest form of punishment.
Any authoritative oral communication or statement by way of advice or caution by the court to
the jury respecting their duty or conduct as jurors;
the admissibility or nonadmissibility of evidence,
or the purpose for which any evidence admitted
may be considered by them. Miller v. Noell, 193
Ky. 659, 237 S.W. 373, 374.
An allegation not denied is deemed not controverted, and
silence of pleader is usually treated as an admission
against him for purpose of the action. Doughty v. Pallissard, 3 N.Y.S.2d 452, 453, 167 Misc. 55. Generally pleadings must be regarded as "judicial admissions", rather
than ordinary "admissions". Hughes v. Fort Worth Nat.
Bank, Tex.Civ.App., 164 S.W.2d 231, 232.
In confession and avoidance, admission of truth of opposite party's pleading is made.
Express admissions may be made of matters of fact only.
See Confession and Avoidance.
In Equity. Partial admissions are those which are delivered in terms of uncertainty, mixed up with explanatory
or qualifying circumstances.
Plenary admissions are those which admit the truth of
the matter without qualification, whether it be asserted
as from information and belief or as from actual knowledge. See Burrell v. Hackley, C.C.N.Y., 35 F. 833.
ADMONITIO TRINA. The threefold warning
given to a 'prisoner who stood mute, before he
was subjected to peine forte et dure (q. v.). 4
Bl.Comm. 325; 4 Steph.Comm. 391.
"Admissions against interest" are any statements made by or attributable to a party to an
action, which constitute admissions against his
interest and tend to establish or disprove any material fact in the case. Kellner v. Whaley, 148
Neb. 259, 27 N.W.2d 183, 189.
ADMORTIZATION. The reduction of property of
lands or tenements to mortmain, in the feudal
customs.
ADMIT. To allow, receive, or take; to suffer one
to enter; to give possession; to license. Gregory
v. United States, 17 Blatchf. 325, 10 Fed.Cas. 1195.
ADM'R. Ths abbreviation will be judicially presumed to mean "administrator." Moseley v. Mastin, 37 Ala. 216, 221.
69
ADNEPOS
ADNEPOS. The son of a great-great-grandson.
Calvinus, Lex.
To accept an alien as a citizen or member of a
community or state and invest him with corresponding rights and privileges, either (in general
and untechnical parlance) by naturalization, or
by an act equivalent to naturalization, as where
a white man is "adopted" by an Indian tribe.
Hampton v. Mays, 4 Ind.T. 503, 69 S.W. 1115.
ADNEPTIS. The daughter of a great-great-granddaughter. Calvinus, Lex.
ADNICHILED. Annulled, canceled, made void.
28 Hen. VIII.
ADOPTION. The taking and receiving as one's
own that to which he bore no prior relation, colorable or otherwise. Davies v. Lahann, C.C.A.N.M.,
145 F.2d 656, 659. The act of one who takes another's child into his own family, treating him as
his own, and giving him all the rights and duties
of his own child. See In re Chambers' Estate, 183
N.Y.S. 526, 528, 112 Misc. 551. sin manner provided
by and with consequences specified in statute.
Fisher v. Robison, 329 Pa. 305, 198 A. 81, 82. A.
juridicial act creating between two persons certain relations, purely civil, of paternity and filiation. 6 Demol. § 1; Grimes v. Grimes, 207 N.C.
778, 178 S.E. 573. The relation thereby created is
a statutory status, not a contractual relation.
Caruso v. Caruso, 13 N.Y.S.2d 239, 241, 175 Misc.
290. Though legal adoption may confer on person adopted rights of actual relationship of child,
simple "adoption" extends only to his treatment
as member of the household. Shepherd v. Sovereign Camp, W.O.W., 166 Va. 488, 186 S.E. 113,
116. See, also, Adopt.
ADNLHILARE. In old English law, to annul; to
make void; to reduce to nothing; to treat as
nothing; to hold as or for nought.
ADNOTATIO. In the civil law, the subscription
of a name or signature to an instrument. Cod. 4,
19, 5, 7.
A rescript (q. v.) of the prince or emperor, signed with
his own hand, or sign-manual. Cod. 1, 19, 1. "In the imperial law, casual homicide was excused by the indulgence
of the emperor, signed with his own .sign-manual, annotatione principis." 4 Bl.Comm. 187.
ADOBE. Earth. In arid or desert regions, an
alluvial or playa clay from which bricks are made
for construction of houses, called "adobe" houses.
See Sweeney v. Jackson County, 93 Or. 96, 178 P.
365, 376.
ADOLESCENCE. That age which follows puberty
and precedes the age of majority. It commences
for males at fourteen, and for females at twelve
years, and continues until twenty-one years complete.
Adoption, properly speaking, refers only to persons who
are strangers in blood, In re Lund's Estate, Cal.App., 148
P.2d 709, 711. And is not synonymous with "legitimation,"
which refers to persons of the same blood. Blythe v.
Ayres, 96 Cal. 532, 31 P. 915, 19 L.R.A. 40. But this distinction is not always observed. In re Presly's Estate, 113
Okl. 160, 240 P. 89, 90. It is a relationship artificially created by statute. Borner v. Larson, 70 N. D. 313, 293 N.W.
836, 839.
ADOPT. To accept, appropriate, choose, or select;
to make that one's own (property or act) which
was not so originally.
To adopt a route for the transportation of the mail
means to take the steps necessary to cause the mail to be
transported over that route. Rhodes v. U. S., Dev.Ct.C1.
47. To adopt a contract is to accept it as binding, notwithstanding some defect which entitles the party to repudiate
it. Thus, when a person affirms a voidable contract, or
ratifies a contract made by his agent beyond his authority,
he is sometimes said to adopt it. Sweet. Strictly, however, the word "adopt" should be used to apply to void
transactions, while the word "ratify" should be limited to
the final approval of a voidable transaction by one who
theretofore had the optional right to relieve himself from
its obligations. United German Silver Co. v. Bronson, 92
Conn. 266, 102 A. 647, 648. "Adoption" of a contract by one
not a party thereto is of the nature of a novation. Edwards
v. Heralds of Liberty, 263 Pa. 548, 107 A. 324, 326. See Affirm.
ADOPTION BY PUBLIC ACKNOWLEDGMENT.
See Legitimate.
ADOPTIVE ACT. An act of legislation which
comes into operation within a limited area upon
being adopted, in manner prescribed therein, by
the inhabitants of that area.
ADOPTIVUS. Lat. Adoptive. Applied both to
the parent adopting, and the child adopted. Inst.
2, 13, 4; Inst. 3, 1, 10-14.
To accept, consent to, and put into effective operation; as in the case of a constitution, constitutional amendment, ordinance, or by-law. Real v.
People, 42 N.Y. 282; People v. Norton, 59 Barb.
( N.Y.) 191. A Code. City of Albany v. Nix, 21
Ala.App. 164, 106 So. 199, 200. Statements in an
application appearing above insured's signature.
Republic Mut. Ins. Co. v. Wilson, 66 Ohio App.. 522,
35 N.E.2d 467, 468.
To take into one's family the child of another
and give him or her the rights, privileges, and
duties of a child and heir. State v. Thompson,
13 La.Ann. 515; Abney v. De Loach, 84 Ala. 393.
ADPROMISSOR. In the civil and Scotch law, a
guarantor, surety, or cautioner; a peculiar species
of fidejussor; one who adds his own promise to
the promise given by the-principal debtor, whence
the name.
ADQUIETO. Payment. Blount.
ADRECTARE. To set right, satisfy, or make
amends.
ADRHAMIRE. In old European law, to undertake, declare, or promise solemnly; to pledge; to
pledge one's self to make oath. Spelman.
Adoption of children was a thing unknown to the common law, but was a familiar practice under the Roman law
and in those countries where the civil law prevails, as
France and Spain. Butterfield v. Sawyer, 187 Ill. 598, 58
N.E. 602, 52 L.R.A. 75, 79 Am.St.Rep. 246. Creature of the
law, and statutory requirements must be strictly carried
out. Owles v. Jackson, 199 La. 940, 7 So.2d 192, 194.
ADRIFT. Sea-weed, between high and low watermark, which has not been deposited on the shore,
and which during flood-tide is moved by each rising and receding wave, is adrift, although the
70
ADULTERY
bottom of the mass may touch the beach. Anthony v. Gifford, 2 Allen (Mass.) 549.
ADROGATION. In the civil law, the adoption of
one who was impubes; that is, if a male, under
fourteen years of age; if a female, under twelve.
Dig. 1, 7, 17, 1.
ADULTER. Lat. One who corrupts; one who
seduces another man's wife. Adulter solidorum.
A corruptor of metals; a counterfeiter. Calvinus,
Lex.
ADULTERA. In the civil law, an adulteress; a
woman guilty of adultery. Dig. 48, 5, 4, pr.; Dig.
48, 5, 15, 8.
ADS. An abbreviation for ad sectam (q. v.),
meaning "at the suit of." Bowen v. Sewing Mach.
Co., 86 Ill. 11.
ADULTERATION. The act of corrupting or debasing; the act of mixing something impure or
spurious with something pure or genuine, or an
inferior article with a superior one of the same
kind. State v. Norton, 24 N.C. 40. The term is
generally applied to the act of mixing up with
food or drink intended to be sold other matters of
an inferior quality, and usually of a more or less
deleterious quality. Grosvenor v. Duffy, 121 Mich.
220, 80 N.W. 19, though the artificially colored
poppy seeds were not deleterious and had the
same food value as the naturally colored seeds.
U. S. v. Two Bags, Each Containing 110 Pounds,
Poppy Seeds, C.C.A.Ohio, 147 F.2d 123, 127.
ADSCENDENTES. Lat. In the civil law, ascendants. Dig. 23, 2, 68; Cod. 5, 5, 6.
ADSCRIPTI. See Adscriptus.
ADSCRIPTI GLEBIE. Slaves who served the
master of the soil, who were annexed to the land,
and passed with it when it was conveyed. Calvinus, Lex.
In Scotland, as late as the reign of George III., laborers
in collieries and salt works were bound to the coal-pit or
salt work in which they were engaged, in a manner similar
to that of the adscripti of the Romans. Bell. These servi
adscripti (or adscriptitii) glebce held the same position as
the villeins regardant of the Normans; 2 Bla.Com. 93. See
1 Poll. & Mait. 372.
ADULTERATOR, Lat. A corrupter. In the civil
law. A forger; a counterfeiter. Adulteratores
monetce, counterfeiters of money. Dig. 48, 19,
16, 9.
ADSCRIPTITII. Lat. A species of serfs or
slaves. See 1 Poll. & Mait. 372.
Those persons who were enrolled and liable to
be drafted as legionary soldiers. Calvinus, Lex.
ADSCRIPTUS. In the civil law, added, annexed,
or bound by or in writing; enrolled, registered;
united, joined, annexed, bound to, generally. Servus colonce adscriptus, a slave annexed to an estate as a cultivator. Dig. 19, 2, 54, 2. Fundus
adscriptus, an estate bound to, or burdened with
a duty. Cod. 11, 2, 3.
ADULTERINE. Begotten in an adulterous intercouite. Those are not deemed adulterine who are
begotten,of a woman openly married through ignorance of a former wife being alive. In the
Roman and canon law, adulterine bastards were
distinguished from such as were the issue of two
unmarried persons, and the former were treated
with more severity, not being allowed the status
of natural children, and being ineligible to holy
orders.
ADSESSORES. Side judges. Assistants or advisers of the regular magistrates, or appointed as
their substitutes in certain cases. Calvinus, Lex.
See Assessor.
ADULTERINE BASTARDS. The offspring of
adulterous relations. Kotzke v. Kotzke's Estate,
205 Mich. 184, 171 N.W. 442, 443. See, also, Adulterous Bastards.
ADSTIPULATOR. In Roman law, an accessory
party to a promise, who received the same promise as his principal did, and could equally receive
and exact payment; or he only stipulated for a
part of that for which the principal stipulated,
and then his rights were coextensive with the
amount of his own stipulation. One who supplied
the place of a procurator at a time when the law
refused to allow stipulations to be made by procuration. Sandars, Just.Inst. (5th Ed.) 348.
ADULTERINE GUILDS. Traders acting as a
corporation without a charter, and paying a fine
annually for permission to exercise their usurped
privileges. Smith, Wealth Nat. b. 1, c. 10.
ADULTERIUM. A fine anciently imposed for the
commission of adultery.
ADULTEROUS BASTARDS. Those produced by
an unlawful connection between two persons, who
at the time when the child was conceived, were,
either of them or both, connected by marriage
with some other person. Civil Code La. art. 182.
ADULT.
Civil Law
A male infant who has attained the age of fourteen; a female infant who has attained the age
of twelve. Dom.Liv.Prel. tit. 2, § 2, n. 8.
ADULTERY. Voluntary sexual intercourse of a
married person with a person other than the offender's husband or wife. Franzetti v. Franzetti,
Tex.Civ.App., 120 S.W.2d 123, 127.
Common Law
One who has attained the legal age of majority,
generally 21 years, though in some states women
are legally "adults" at 18. Schenault v. State,
10 Tex.App. 410; Lucas v. United States Fidelity
& Guaranty Co., 174 A. 712, 713, 113 N.J.Law, 491.
In some states, however, as was also true under the Roman and Jewish law, this crime is committed only when
the woman is married to a third person ; the unlawful commerce of a married man with an unmarried woman not
being of the grade of adultery. Corn. v. Call, 21 Pick.
Mass. 509, 32 Am.Dec. 284, and note; Com. v. Elwell, 2
Metc. 190, 39 Am.Dec. 398. In other jurisdictions, both
parties are guilty of adultery, even though only one of
71
ADULTERY
them is married. Goodwin v. State, 70 Tex.Cr.R. 600, 158
S. W. 274, 275. In some jurisdictions, also, a distinction is
made between double and single adultery, the former being
committed where both parties are married to other persons, the latter where one only is so married. Hunter v.
U. S., 1 Pin.Wis. 91, 39 Am. Dec. 277.
This word, when taken in its strict legal sense, does not
mean gifts, (advancements,) and does mean a sort of loan;
and, when taken in its ordinary and usual sense, it includes both loans and gifts,—loans more readily, perhaps,
than gifts. Landrum & Co. v. Wright, 11 Ala.App. 406, 66
So. 892.
Payments advanced to the owner of property
by a factor or broker on the price of goods which
the latter has in his hands, or is to receive, for
sale.
Open and Notorious Adultery
To constitute living in open and notorious adultery, the parties must reside together publicly in
the face of society, as if conjugal relations existed
between them, and their so living and the fact
that they are not husband and wife must be
known in the community. McCullough v. State,
107 Tex.Cr.R. 258, 296 S.W. 530.
"Loans" are repayable at maturity, while "advances"
are not repaid by party receiving them, but are covered
by proceeds of consigned goods. People ex rel. James Talbott, Inc., v. Goldfogle, 211 N.Y.S. 122, 123, 213 App.Div.
719.
ADVANCE, v. To pay money or render other
value before it is due; to furnish something before an equivalent is received; to loan; to furnish
capital in aid of a projected enterprise, in expectation of return from it. Powell v. Allan, 70 Cal.
App. 663, 234 P. 339, 344. To supply beforehand;
to furnish on credit or before goods are delivered
or work done; to furnish as a part of a stock or
fund; to pay money before it is due; to furnish
money for a specific purpose understood between
the parties, the money or sum equivalent to be
returned; furnishing money or goods for others
in expectation of reimbursement; money or commodities furnished on credit; a loan, or gift or
money advanced to be repaid conditionally; may.
be equivalent to "pay." In re Altman's Will, Sur.,
6 N.Y.S.2d 972, 975.
An agreement to "advance" money for personal property
implies a loan with property as pledge, rather than a payment of purchase money in sale. Shelley v. Byers, 73 Cal.
App. 44, 238 P. 177, 182.
ADVANTAGE. Any state, condition, circumstance, opportunity, or means specially favorable
to success, prosperity, interest, reputation, or any
desired end. Duvall v. State, 92 Ind.App. 134,
166 N.E. 603, 604. Preference or priority. United
States v. Preston, 4 Wash. 446, Fed.Cas.No.16,087.
ADVANTAGIUM. In old pleading, an advantage. Co.Ent. 484; Townsh.P1. 50.
ADVENA. In Roman law, one of foreign birth,
who has left his own country and settled elsewhere, and who has not acquired citizenship in
his new locality; often called albanus. Du
Cange.
ADVENT. A period of time recognized by the
English common and ecclesiastical law, beginning
on the Sunday that falls either upon St. Andrew's
day, being the 30th of November, or the next to
it, and continuing to Christmas day. Wharton.
ADVENTITIOUS. That which comes incidentally, fortuitously, or out of the regular course.
"Adventitious value" of lands, see Central R.
Co. v. State Board of Assessors, 49 N.J.Law, 1, 7
A. 306.
ADVANCE PAYMENT. Payments made in anticipation of a contingent or fixed future liability.
Smith v. Unity Industrial Life Ins. Co., La.App.,
13 So.2d 129, 132.
ADVANCEMENT. Money or property given by
a parent to his child or, sometimes, presumptive
heir, or expended by the former for the latter's
benefit, by way of anticipation of the share which
the child will inherit in the parent's estate and
intended to be deducted therefrom. It is the latter circumstance which differentiates an advancement from a gift or a loan. Brewer's Adm'r v.
Brewer, 181 Ky. 400, 205 S.W. 393, 396; In re
Allen's Estate, 207 Pa. 325, 56 A. 928.
ADVENTITIUS. Lat. Fortuitous; incidental;
coming from an unusual source. Adventitia bona
are goods which fall to a man otherwise than by
inheritance. Adventitia dos is a dowry or portion
given by some friend other than the parent.
ADVENTURA. An adventure. 2 Mon.Angl. 615;
Townsh.Pl. 50. Flotson, jetson, and lagon are
styled adventurce maris, (adventures of the sea.)
Hale, De Jure Mar. pt. 1, c. 7.
A perfect and irrevocable gift, In re Wiese's Estate, 222
Iowa 935, 270 N.W. 380, 382. Passing title in lifetime of
donor, Burkhart v. Lowery, 115 Ind.App. 445, 59 N.E.2d
732, 734; but which must be accounted for by donee on
distribution of donor's estate. In re Beier's Estate, 205
Minn. 43, 284 N.W. 833, 835, 836, 837, 838. "Advancement,"
unlike "ademption" (q. v.), applies only to cases of intestacy. Ellard v. Ferris, 91 Ohio St. 339, 110 N.E. 476, 479.
An "advancement by portion," within the meaning of the
statute, is a sum given by a parent to establish a child in
life, (as by starting him in business,) or to make a provision for the child, (as on the marriage of a daughter). L.
R. 20 Eq. 155. See Ademption; Gift.
ADVENTURE. A hazardous and striking enterprise, a bold undertaking in which hazards are to
be met and issue hangs upon unforeseen events.
Bond v. O'Donnell, 205 Iowa, 902, 218 N.W. 898,
902, 63 A.L.R. 901.
Generally
Adventure, bill of. In mercantile law, a writing
signed by a merchant, stating that the property
in goods shipped in his name belongs to another,
to the adventure or chance of which the person
so named is to stand, with a covenant from the
merchant to account to him for the produce.
Gross adventure. In maritime law, a loan on
bottomry. So named because the lender, in case
ADVANCES. Moneys paid before or in advance
of the proper time of payment; money or commodities furnished on credit; a loan or gift, or
money advanced to be repaid conditionally. Powder Co. v. Burkhardt, 97 U.S. 110, 24 L.Ed. 973.
72
ADVERSE
ex parte application; one of which the party
of a loss, or expense incurred for the common
safety, must contribute to the gross or general
average.
Joint adventure. A commercial or maritime enterprise undertaken by 'several persons jointly;
a limited partnership,—not limited in the statutory sense as to the liability of the partners, but
as to its scope and duration. Lobsitz v. E. Lissberger Co., 168 App.Div. 840, 154 N.Y.S. 556, 557.
A special partnership. McDaniel v. State Fair of
Texas, Tex.Civ.App., 286 S.W. 513, 517. An association of two or more persons to carry out a
single business enterprise for profit, for which
purpose they combine their property, money, effects, skill, and knowledge. Forman v. Lumm,
214 App.Div. 579, 212 N.Y.S. 487. A special combination of two or more persons, where, in some
specific adventure, a profit is jointly sought, without any actual partnership or corporate designation. Griffin v. Reilly, Tex.Civ.App., 275 S.W. 242,
246.
seeking relief has given legal warning to the other party, and afforded the latter an opportunity
to contest it. Excludes an adoption proceeding.
Platt v. Magagnini, 187 P. 716, 718, 110 Wash.
39.
ADVERSE. Opposed; contrary; in resistance or
opposition to a claim, application, or proceeding.
Having opposing interests; having interests for
the preservation of which opposition is essential.
In re National Lock Co., D.C.Ill., 9 F.Slipp. 432,
433.
As to adverse "Claim," "Enjoyment," "User,"
"Verdict," "Witness," see those titles.
ADVERSE INTEREST. The "adverse interest"
of a witness, so as to permit cross-examination by
the party calling him, must be so involved in the
event of the suit that a legal right or liability will
be acquired, lost, or materially affected by the
judgment, and must be such as would be promoted by the success of the adversary of the party calling him. Dinger v. Friedman, 279 Pa. 8,
123 A. 641, 643. On petition in bankruptcy court
for removal of trustee's attorney, attorney has an
interest adverse to trustee. In re Mallow Hotel
Corporation, D.C.Pa., 18 F.Supp. 15, 17.
It is ordinarily, but not necessarily, limited to a single
transaction, Forbes v. Butler, 66 Utah, 373, 242 P. 950, 956,
which serves to distinguish it from a partnership, Barry
v. Kern, 184 Wis. 266, 199 N.W. 77, 78. But the business of
conducting it to a successful termination may continue for
a number of years. Elliott v. Murphy Timber Co., 117 Or.
387, 244 P. 91, 93, 48 A.L.R. 1043. There is no real distinction between a "joint adventure" and what is termed
a "partnership for a single transaction." Atlas Realty Co.
v. Galt, 153 Md. 586, 139 A. 285, 286. A "joint adventure,"
while not identical with a partnership, is so similar in its
nature and in the relations created thereby that the rights
of the parties as between themselves are governed practically by the same rules that govern partnerships. Goss v.
Lanin, 170 Iowa 57, 152 N.W. 43, 45.
ADVERSE PARTY. An "adverse party" entitled
to notice of appeal is every party whose interest
in relation to the judgment or decree appealed
from is in conflict with the modification or reversal sought by the appeal.
Every party interested in sustaining the judgment or
decree. Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909.
All parties appearing against losing party unless reversal
of case will not be to party's detriment. Shea v. Shea,
Iowa, 264 N.W. 590. Any party who would be prejudicially affected by a modification or reversal of the judgment appealed from. Great Falls Nat. Bank v. Young, 67
Mont. 328, 215 P. 651, 652. One who has interest in opposing object sought to be accomplished by appeal. In re
Baxter's Estate, 94 Mont. 257, 22 P.2d 182. Party to record, whose interest in subject-matter of appeal is adverse
to, reversal or modification of judgment or order appealed
from. MacDonald v. Superior Court in and for City and
County of San Francisco, 101 Cal.App. 423, 281 P. 672, 673.
A party who, by the pleadings, is arrayed on the opposite
side. Merrill v. St. Paul City Ry. Co., 170 Minn. 332, 212
N.W. 533. The other party to the action. Highland v.
Hines, 80 N.H. 179, 116 A. 347, 349. A party to the record
for, or against, whom judgment is sought. Merchants'
Supply Co. v. Hughes' Ex'rs, 139 Va. 212, 123 S.E. 355, 356.
"Opposite" party synonymous. In re Wah-shah-she-metsa-he's Estate, 111 Okl. 177, 239 P. 177, 178. And term is
not necessarily confined to plaintiffs as against defendants,
or vice versa. Arwood v. Hill's Adm'rs, 135 Va. 235, 117
S.E. 603, 605. But a defaulting defendant is not an
"adverse party" ; Holt v. Empey, 32 Idaho, 106, 178 P.
703; nor is one who is named as a party but is not served;
Kissler v. Moss, 26 Idaho, 516, 144 P. 647. Compare Fergen v. Lonie, 50 S.D. 328, 210 N.W. 102, 103 (garnishment
debtor not served in garnishment proceeding).
Marine Insurance
A very usual word in policies of marine insurance, and everywhere used as synonymous, or
nearly so, with "perils." It is often used by the
writers to describe the enterprise or voyage as a
"marine adventure" insured against. Moores v.
Louisville Underwriters, C.C.Tenn., 14 Fed. 233.
Mercantile Law
Sending goods abroad under charge of a supercargo or other agent, at the risk of the sender,
to be disposed of to the best advantage for the
benefit of the owners.
The goods themselves so sent.
ADVENTURER. One who undertakes uncertain
or hazardous actions or enterprises. It is also
used to denote one who seeks to advance his
own interests by unscrupulous designs on the
credulity of others. It has been held that to impute that a person is an adventurer is a libel; 18
L.J.C.P. 241.
ADVERSE POSSESSION. A method of acquisition of title by possession for a statutory period
under certain conditions. Lowery v. Garfield
County, Mont., 208 P.2d 478, 486. It has been described as the statutory method of acquiring title
to land by limitation. Field v. Sosby, Tex.Civ.
App., 226 S.W.2d 484, 486.
The possession must be actual, Ortiz v. Pacific
States Properties, Cal.App., 215 P.2d 514, 516;
ADVERSARIA. (From Lat. adversa, things remarked or ready at hand.) Rough memoranda,
common-place books.
ADVERSARY. A litigant-opponent, the opposite
party in a writ or action.
ADVERSARY PROCEEDING. One having opposing parties; contested, as distinguished from an
73
ADVERSE
adverse, Flanery v. Greene, 158 S.W.2d 413, 415,
289 Ky. 244; under claim of right, Thomas v.
Durchslag, Ill., 90 N.E.2d 200, 204, 404 Ill. 581;
continuous, Davis v. Federal Land Bank of Columbia, 13 S.E.2d 417, 419, 219 N.Car. 248; open
Wilberforce University v. College of Ed. and
Indus. Arts at Wilberforce University, 90 N.E.2d
172, 173, 86 Ohio App. 121; notorious, Edie v.
Coleman, 141 S.W.2d 238, 242, 243, 235 Mo.App.
1289; exclusive, Laudati v. State, 30 N.Y.S.2d 267,
270, and -hostile, Singley v. Dempsey, 42 So.2d 609,
612, 252 Ala. 677. Although color of title is not
essential, Roesch v. Gerst, 138 P.2d 846, 851, 852,
18 Wash.2d 294, it is of great evidentiary value
in establishing adverse possession, Lincoln v.
Mills, 2 So.2d 809, 811, 191 Miss. 512.
Adverse possession depends on intent of occupant to claim and hold real property in opposition
to all the world, Sertic v. Roberts, 136 P.2d 248,
171 Ore. 121; and also embodies the idea that owner of or persons interested in property have knowledge of the assertion of ownership by the occupant, Field v. Sosby, Tex.Civ.App., 226 S.W.2d 484,
486.
Payment of taxes alone is not sufficient in itself to establish adverse possession, Blitch v.
Sapp, 194 So. 328, 330, 142 Fla. 166. It is mandatory that the element of continuous possession
exist for the full statutory period, Wells v. Tietge,
9 N.W.2d 180, 182, 143 Neb. 230.
ADVERSUS. In the civil law, against, (contra.)
Adversus bonos mores, against good morals. Dig.
47, 10, 15.
Adversus extraneos vitiosa possessio prodesse
solet. Prior possession is a good title of ownership against all who cannot show a better. D.
41. 2. 53; Salmond, Jurispr. 638.
ADVERTISE. To give notice to, inform or notify,
give public notice of, announce publicly, notice
or observe. People v. Hopkins, 263 N.Y.S. 290,
147 Misc. 12. To advise, announce, apprise, command, give notice of, inform, make known, publish. People v. Montague, 274 N.W. 347, 351, 280
Mich. 610. On call to the public attention by any
means whatsoever; Commonwealth v. Allison,
227 Mass. 57, 116 N.E. 265, 266.
A sign-board, erected at a person's place of business,
giving notice that lottery tickets are for sale, Com. v.
Hooper, 5 Pick.Mass. 42.
ADVERTISEMENTS OF QUEEN ELIZABETH.
Certain articles or ordinances drawn up by Archbishop Parker and some of the bishops in 1564, at
the request of Queen Elizabeth, the object of
which was to enforce decency and uniformity in
the ritual of the church. The queen subsequently
refused to give her official sanction to these advertisements, and left them to be enforced by the
bishops under their general powers. Phillim.Ecc.
Law, 910; 2 Prob.Div. 276; 354.
•
ADVICE. View; opinion; the counsel given by
lawyers to their clients; an opinion expressed as
to wisdom of future conduct. Hughes v. Van
Bruggen, 44 N.M. 534, 105 P.2d 494, 496.
The word has several different meanings, among others,
as follows : Information or notice given; intelligence ;—
usually information communicated by letter ;—Chiefly as
to drafts or bills of exchange ; as, a letter of advice.—
Advice implies real or pretended knowledge, often professional or technical, on the part of the one who gives it.
Provident Trust Co. v. National Surety Co., D.C.Pa., 44
F.Supp. 514, 515.
The instruction usually given by one merchant
or banker to another by letter, informing him of
shipments made to him, or of bills or „drafts
drawn on him, with particulars of date, or sight,
the sum, and the payee. Bills presented for acceptance or payment are frequently dishonored
for want of advice.
Letter of advice is a communication from one person to
another, advising or warning the latter of something which
he ought to know, and commonly apprising him beforehand of some act done by the writer which will ultimately
affect the recipient. Chit. Bills, 162.
ADVISARE, ADVISARI. Lat. To consult, deliberate, consider, advise; to be advised. Occurring
in the phrase curia advisari 4vult, which see (usually abbreviated cur. adv. vu/t, or C. A. V.,) the
court wishes to be advised, or to consider of the
matter.
ADVISE. To give an opinion or counsel, or recommend a plan or course of action; also to give
notice. Long v. State, 23 Neb. 33, 36 N.W. 310.
To encourage. Voris v. People, 75 Colo. 574, 227
P. 551, 553. "Inform" or "acquaint." Ericson v.
Steiner, 119 Cal.App. 305, 6 P.2d 298, 300.
It is different in meaning from "instruct" or "persuade."
Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494, 497.
Where a statute authorizes the trial court to advise the
jury to acquit, the court has no power to instruct the jury
to acquit. The court can only counsel, and the jury are
not bound by the advice. People v. Horn, 70 Cal. 17, 11 P.
470. "Advise" imports that it is discretionary or optional
with the person addressed whether he will act on such
advice or not. State v. Downing, 23 Idaho, 540, 130 P. 461,
462.
It includes publication by hand bills, signs, bill boards,
sound trucks and radio, Rust v. Missouri Dental Board,
348 Mo. 616, 155 S.W.2d 80, 83; or in a newspaper, or by
means of placards, or other written public notices ; Nichols
v. Nichols, 192 Ala. 206, 68 So. 186, 187. It is merely identification and description, apprising of quality and place,
Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S.Ct. 370,
377, 60 L.Ed. 679. And "advertising purposes" are not
limited to matters of vocation, or even avocation, but
include advertisements essentially for unselfish purposes,
Almind v. Sea Beach Ry. Co., 141 N.Y.S. 842, 843, 157
App.Div. 230.
ADVISED. Prepared to give judgment, after examination and deliberation. "The court took time
to be advised." 1 Leon. 187.
ADVERTISEMENT. Notice given in a manner
designed to attract public attention. Edwards v.
Lubbock County, Tex., 33 S.W.2d 482, 484. Information communicated to the public, or to an individual concerned, as by handbills or the newspaper. First Nat. Corporation v. Perrine, 99
Mont. 454, 43 P.2d 1073, 1077.
ADVISEDLY. With deliberation; intentionally.
15 Moore P.C. 147.
Consideration; deliberation;
ADVISEMENT.
consultation. Drainage Dist. No. 1 of Lincoln
74
ADVOCATOR
Civil and Ecclesiastical Law
An officer of the court, learned in the law, who
is engaged by a suitor to maintain or defend his
cause.
Generally
County v. Suburban Irr. Dist., 139 Neb. 460, 298
N.W. 131, 134. The consultation of a court, after
the argument of a cause by counsel, and before
delivering their opinion. In re Hohorst, 150 U.S.
662, 14 S.Ct. 221, 37 L.Ed. 1211.
ADVISORY. Counselling, suggesting, or advising, but not imperative or conclusive. A verdict
on an issue out of chancery is advisory. Watt v.
Starke, 101 U.S. 252, 25 L.Ed. 826. Not binding
on chancellor. Merritt v. Palmer, 289 Ky. 141,
158 S.W.2d 163, 165.
—Advocate general. The adviser of the crown
in England on questions of naval and military
law.
—Lord Advocate. The principal crown lawyer
in Scotland, and one of the great officers of state
of Scotland. It is his duty to act as public prosecutor; but private individuals injured may prosecute upon obtaining his concurrence. He is assisted by a solicitor general and four junior counsel, termed "advocates-depute." He has the power of appearing as public prosecutor in any court
in Scotland, where any person can be tried for an
offense, or in any action where the crown is interested. Wharton.
—Queen's advocate. A member of the College of
Advocates, appointed by letters patent, whose office is to advise and act as counsel for the crown
in questions of civil, canon, and international law.
His rank is next after the solicitor general.
ADVISORY OPINION. A formal opinion by
judge or judges or a court or a law officer upon a
question of law submitted by a legislative body
or a governmental official, but not actually presented in a concrete case at law. Douglas Oil
Co. v. State, Tex.Civ.App., 81 S.W.2d 1064, 1077.
Merely opinion of judges or court, which adjudicates
nothing and is binding on no one, in exercise of wholly
non or extra-judicial function. The expression ordinarily
connotes the practice which existed in England from very
early times of extra-judicial consultation of the judges by
the Crown and the House of Lords. Douglas Oil Co. v.
State, Tex.Civ.App., 81 S.W.2d 1064, 1077.
ADVOCACY. The act of pleading for, supporting,
or recommending active espousal. Gitlow v. People of State of New York, 45 S.Ct. 625, 626, 268
U.S. 652, 69 L.Ed. 1138.
ADVOCATI. Lat. In Roman law, patrons; pleaders; speakers.
ADVOCARE. Lat. To defend; to call to one's
aid; to vouch; to warrant.
ADVOCATI ECCLESIZE. Advocates of the
church.
ADVOCASSIE. L. Fr. The office of an advocate;
advocacy. Kelham.
A term used in the ecclesiastical law to denote the
patrons of churches who presented to the living on an
avoidance. This term was also applied to those who were
retained to argue the cases of the church. These were of
two sorts : those retained as pleaders to argue the cases
of the church and attend to its law-matters ; and advocates, or patrons of the advowson. Cowell ; Spelman,
Gloss.
ADVOCATA. In old English law, a patroness;
a woman who had the right of presenting to a
church. Spelman.
ADVOCATI FISCI. In civil law, those chosen
by the emperor to argue his cause whenever a
question arose affecting his revenues. 3 Bla.
Comm. 27. Advocates of the fisc, or revenue; fiscal advocates, (qui causam fisci egissent.) Cod. 2,
9, 1; Cod. 2, 7, 13. Answering, in some measure,
to the king's counsel in English law.
ADVOCATE, v. To speak in favor of; defend by
argument. Ex parte Bernat, D.C.Wash., 255 F.
429, 432. To support, vindicate, or recommend
publicly. Butash v. State, 212 Ind. 492, 9 N.E.2d
88, 90. Not for an educational purpose, but to
disseminate controversial "propaganda," which
means plan for publication of doctrine or system
of principles. Leubuscher v. Commissioner of Internal Revenue, C.C.A., 54 fil.2d 998, 999.
ADVOCATIA. In the civil law, the quality, function, privilege, or territorial jurisdiction of an advocate.
The functions, duty, or privilege of an advocate. Du Cange, Advocatia.
ADVOCATE, n. One who assists, defends, or
pleads for another; one who renders legal advice
and aid and pleads the cause of another before a
court or a tribunal, a counselor. Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694,
697.
A person learned in the law, and duly admitted
to practice, who assists his client with advice, and
pleads for him in open court. Holthouse.
An assistant; adviser; a pleader of causes.
ADVOCATION. In Scotch law, a process by
which an action may be carried from an inferior
to a superior court before final judgment in the
former.
ADVOCATIONE DECIMARUM. A writ which
lay for tithes, demanding the fourth part or upwards, that belonged to any church.
Derived from advocare, to summon to one's assistance;
advocatus originally signified an assistant or helper of any
kind, even an accomplice in the commission of a crime;
Cicero, Pro Ccecina, c. 8; Livy, lib. ii. 55; 47; Tertullian, De Idolatr. cap. xxiii. ; Petron. • Satyric. cap. xv.
Secondarily, it was applied to one called in to assist a
party in the conduct of a suit; Inst. 1, 11, D, 50, 13. de
extr. cogn. Hence, a pleader, which is its present signification.
ADVOCATOR. In old practice, one who called
on or vouched another to warrant a title; a
voucher. Advocatus; the person called on, or
vouched; a vouchee. Spelman; Townsh.P1. 45.
In Scotch practice, an appellant. 1 Broun, R.
67.
75
ADVOCATUS
ADVOCATUS. A pleader; a narrator. Bracton,
412 a, 372 b.
In the civil law, an advocate; one who managed
or assisted in managing another's cause before
a judicial tribunal. Called also "patronus." Cod.
2, 7, 14. But distinguished from causidicus. Id.
2, 6, 6.
Advowson in gross is an advowson separated from the
manor, and annexed to the person. 2 Bl.Comm. 22; Co.
Litt. 120; 1 Crabb, Real Prop. p. 130, § 118; 3 Steph.
Comm. 116.
Advowson presentative . is the usual kind of advowson,
where the patron has the right of presentation to the
bishop, or ordinary, and moreover to demand of him to
institute his clerk, if he finds him canonically qualified. 2
Bl.Comm. 22; 1 Crabb, Real Prop. p. 131, § 119.
ADVOCATUS DIABOLI. In ecclesiastical law,
the devil's advocate; the advocate who argues
against the canonization of a saint.
ADVOWTRY. See Advoutry.
2EDES. Lat. In the civil law, a house, dwelling,
temple, place of habitation, whether in the city
or country. Dig. 30, 41, 5. In the country everything upon the surface of the soil passed under
the term "cedes." Du Cange; Calvin.
Advocatus est, ad quern pertinet jus advocationis
alicujus ecclesim, ut ad ecclesiam, nomine proprio, non alieno, possit proesentare. A patron is
he to whom appertains the right of presentation
to a church, in such a manner that he may present to such a church in his own name, and not
in the name of another. Co.Litt. 119.
IEDIFICARE. Lat. In civil and old English
law, to make or build a house; to erect a building.
Dig. 45, 1, 75, 7.
ADVOUTRER. In old English law, an adulterer.
Beaty v. Richardson, 56 S.C. 173, 34 S.E. 73, 46
L.R.A. 517.
)Edificare in tuo proprio solo non licet quod
alteri noceat. 3 Inst. 201. To build upon your
own land what may injure another is not lawful.
ADVOUTRY. In old English law, adultery between parties both of whom were married. Hunter v. U. S., 1 Pin. (Wis.) 91, 39 Am.Dec. 277. Or
the offense by an adulteress of continuing to live
with the man with whom she committed the
adultery. Cowell; Termes de la Ley. Sometimes
spelled "advowtry." See Advoutrer.
A proprietor of land has no right to erect an edifice on
his own ground, interfering with the due enjoyment of
adjoining premises, as by overhanging them, or by throwing water from the roof and eaves upon them, or by
obstructing ancient lights and windows. Broom, Max. 369.
.izEdificatum solo solo cedit. What is built upon
land belongs to or goes with land. Broom, Max.
172; Co.Litt. 4a.
ADVOWEE, or AVOWEE. The person or patron
who has a right to present to a benefice. Fleta,
lib. 5, c. 14.
iEdificia solo cedunt. Buildings belong to [go
with] the soil. Fleta, lib. 3, c. 2, § 12.
JEDILE, In Roman law, an officer who attended
to the repairs of the temples and other public
buildings; the repairs and cleanliness of the
streets; the care of the weights and measures;
the providing for funerals and games; and to regulating the prices of provisions. Ainsworth, Lex.;
Smith, Lex.; Du Cange.
ADVOWEE PARAMOUNT. The sovereign, or
highest patron.
ADVOWSON. In English ecclesiastical law, the
right of presentation to a church or ecclesiastical
benefice; the right of presenting a fit person to
the bishop, to be by him admitted and instituted
to a certain benefice within the diocese, which
has become vacant. 2 Bl.Comm. 21; Co.Litt.
119b, 120a. The person enjoying this right is
called the "patron" (patronus) of the church, and
was formerly termed "advocatus," the advocate
or defender, or in English, "advowee." Id.; 1
Crabb, Real Prop. p. 129, § 117.
When there is no patron, or he neglects to exercise his
right within six months, it is called a lapse, and a title is
given to the ordinary to collate to a church : when a presentation is made by one who has no right, it is called a
usurpation.
Advowsons are of different kinds.
Advowson appendant is an advowson annexed to a
manor, and passing with it, as incident or appendant to it,
by a grant of the manor only, without adding any other
words. 2 Bl.Comm. 22; Co.Litt. 120, 121; 1 Crabb, Real
Prop. p. 130, § 118.
Advowson collative. Where the bishop happens himself
to be the patron, in which case (presentation being impossible, or unnecessary) he does by one act, which is termed
"collation," or conferring the benefice, all that is usually
done by the separate acts of presentation and institution.
2 Bl.Comm. 22, 23; 1 Crabb, Real Prop. p. 131, § 119.
Advowson donative exists where the patron has the right
to put his clerk in possession by his mere gift, or deed of
donation, without any presentation to the bishop, or institution by him. 2 Bl.Comm. 23; 1 Crabb, Real Prop. p. 131,
§ 119.
zEDILITUM EDICTUM. In the Roman law, the
lEdilitian Edict.
An edict providing remedies for frauds in sales, the
execution of which belonged to the curule Dig. 21,
1. See Cod. 4, 58. That provision by which the buyer of
a diseased or imperfect slave, horse, or other animal was
relieved at the expense of the vendor who had sold him as
sound knowing him to be imperfect. Calvinus, Lex.
)EFESN. In old English law, the remuneration to
the proprietor of a domain /for the privilege of
feeding swine under the oaks and beeches of his
woods.
ZEGROTO. Lat. Being sick or indisposed. A
term used in some of the older reports. "Holt
cegroto." 11 Mod. 179.
AEGYLDE. Uncompensated, unpaid for, unavenged. From the participle of exclusion, a, ce,
or ex, ( Goth.,) and gild, payment, requital. Anc.
Inst.Eng.
AEL. A Norman French term signifying "grandfather." It is also spelled "aieul" and "ayle."
Kelham.
76
AERONAUTIC
ZEQUUM ET BONUM. "The Roman conception
involved in cequum et bonum' or `cequitas' is identical with what we mean by 'reasonable' or nearly
ZEQUIOR EST DISPOSITIO LEGIS QUAM HOMINIS. The disposition of the law is more equitable than that of man. 8 Coke, 152.
SO.
"On the whole, the natural justice or 'reason of the
thing' which the common law recognizes and applies does
not appear to differ from the 'law of nature' which the
Romans identified with jus gentium, and the medieval
doctors of the civil and common law boldly adopted as
being divine law revealed through man's natural reason."
Sir F. Pollock, Expans. of C. L. 111, citing [1902] 2 Ch.
661, where jus naturale and cequum et bonum were taken
to have the same meaning.
JEQUITAS. In the civil law, equity, as opposed
to strictum or summum jus, (q. v.). Otherwise
called cequum, cequum bonum, cequum et bonum,
cequum et justum. Calvin.
Referring to the use of this term, Prof. Gray says
( Nature and Sources of the Law 290) : "Austin and Maine
take cequitas as
. having an analogous meaning to equity ;
they apply the term to those rules which the prwtors introduced through the Edict in modification of the jus civile,
but it seems to be an error to suppose that cequitas had
this sense in the Roman Law." He quotes Prof. Clark
(Jurisprudence 367) as doubting "whether cequitas is ever
clearly used by the Roman jurists to indicate simply a
department of Law" and expresses the opinion that an
examination of the authorities more than justifies his
doubt. iEquitas is opposed to' strictum jus and varies in
meaning between reasonable modification of the letter and
substantial justice. It is to be taken as a frame of mind
in dealing with legal questions and not as a source of law.
1Equum et bonum est lex legum. What is equitable and good is the law of laws. Hob. 224.
IEQUUS. Lat. Equal; even. A provision in a
will for the division of the residuary estate ex
cequus among the legatees means equally or evenly. Archer v. Morris, 47 Atl. 275, 61 N.J.Eq. 152.
JERA, or ERA. A fixed point of chronological
time, whence any number of years is counted;
thus, the Christian era began at the birth of
Christ, and the Mohammedan era at the flight
of Mohammed from Mecca to Medina. The derivation of the word has been much contested.
Wharton.
See JEquum et Bonum.
ZEquitas agit in personam. Equity acts upon the
person. 4 Bouv.Inst. n. 3733.
2Equitas est correctio legis generaliter latx, qua
parte deficit. Equity is the correction of that
wherein the law, by reason of its generality, is
deficient. Plowd. 375.
ZERARIUM. Lat. In the Roman law. The treasury, ( fiscus.) Calvin.
ATRIAL NAVIGATION. See Aeronautics.
ZEquitas est correctio qudam legi adhibita, quia
ab ea abest aliquid propter generalem sine exceptione comprehensionem. Equity is a certain
correction applied to law, because on account of
its general comprehensiveness, without an exception, something is absent from it. Plowd. 467.
AERODROME. A term originally applied by
Professor Langley to his flying machine but now
used in the same sense as "airport" ( q. v.).
AERONAUT. This term under some statutes
includes every person who, being in or upon an
airship or anything attached thereto, undertakes
to direct its ascent, course, or descent in the air,
or the ascent, course, or descent in the air of
anything attached to such airship.
Under the Uniform Aeronautics Act it includes
aviator, pilot, baloonist, and every other person
having any part in the operation of aircraft while
in flight. See Aeronautics.
lEquitas est perfecta qudam ratio quajus scripturn interpretatur et emendat; nulla scriptura
comprehensa, sed solum in vera ratione consistens.
Equity is a certain perfect reason, which interprets and amends the written law, comprehended
in no writing, but consisting in right reason alone.
Co.Litt. 24b.
7
2-Equitas est quasi aequalitas. Equity is as it were
equality; equity is a species of equality or equalization. .Co.Litt. 24.
AERONAUTIC ACTIVITY. The term is broad
enough to cover what is ordinarily incident to an
airplane trip.. The aeronautic activities of one
who takes such a trip do not begin or end with
the actual flight, but include his presence or
movements in or near to the machine incidental
to beginning or concluding the trip. Blonski v.
Bankers' Life Co., 209 Wis. 5, 243 N.W. 410.
ZEquitas ignorantiie opitulatur, oscitanthe non
item. Equity assists ignorance, but not carelessness.
Xquitas non facit jus, sed juri auxiliatur. Equity does not make law, but assists law. Lofft,
379.
Insured killed when struck by propeller after emerging
from airplane at end of flight, Day v. Equitable Life Assur.
Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 148. To a contrary
effect: Tierney v. Occidental Life Ins. Co., 89 Cal.App. 779,
265 P. 400.
r
i Equitas nunquam contravenit legis. Equity never counteracts the laws.
1-Equitas sequitur legem. Equity follows the law.
5 Barb.N.Y. 277, 282.
AERONAUTIC EXPEDITION. Traveling as passenger in airplane operated in regular passenger
service was engaging in "aeronautic expedition"
under life policy. Gibbs v. Equitable Life Assur.
Soc. of U. S., 256 N.Y. 208, 176 N.E. 144. Contra.
King v. Equitable Life Assur. Soc. of United
States, 232 Iowa 541, 5 N.W.2d 845, 846, 155 A.L.R.
iEquitas supervacua odit. Equity abhors superfluous things. Lofft, 282.
IEquitas uxoribus, liberis, creditoribus maxime
favet. Equity favors wives and children, creditors most of all.
77
AERONAUTIC
1022. Pleasure trip in airplane over airport on
pleasant day was not "aeronautic expedition"
under life policy. Day v. Equitable Life Assur.
Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 149.
AERONAUTIC OPERATION. Passenger on regularly scheduled airplane trip engaged in "aeronautic operation," within life , policy. Day v. Equitable Life Assur. Soc. of U. S., C.C.A.Colo., 83
F.2d 147, 148. Did not include casual trip in airplane; "aeronautic operations" signifying more
than occasional venture. Gits v. New York Life
Ins. Co., C.C.A.I11., 32 F.2d 7, 10. Nor a pleasure
flight in airplane. Day v. Equitable Life Assur.
Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 148.
the property of another, as distinguished from
ces suum, one's own money.
SUUM. One's own money. In the Roman
law, debt; a debt; that which others owe to us,
(quod alii nobis debent.) Dig. 50, 16, 213.
IESNECIA. In old English law, Esnecy; the
right or privilege of the eldest born. Spelman;
Glanv. lib. 7, c. 3; Fleta, lib. 2, c. 66, §1 5, 6.
•
IESNECIUS. See Anecius; Aesnecia.
'ESTHETIC.
Relating to that which is beautiful
or in good taste. People v. Wolf, 216 N.Y.S. 741,
744, 127 Misc. 382. Pertaining to the beautiful.
Ha y -A-Tampa Cigar Co. v. Johnson, 149 Fla. 148,
5 So.2d 433, 440.
AERONAUTICS. The science, art or practice of
sailing in the air; aerial navigation; the branch
of aerostatics which treats of floating in or navigating the air as in an airship or airplane. Massachusetts Protective Ass'n v. Bayersdorfer, C.C.A.
Ohio, 105 F.2d 595, 597. Operation of aircraft.
Equitable Life Assur. Soc. of United States v.
Dyess, 194 Ark. 1023, 109 S.W.2d 1263, 1265.
It is divided into two branches: aerostation, dealing
with machines which, like balloons, are lighter than air ;
and aviation, dealing with artificial flight by machines
which are heavier than air. Bew v. Travelers' Ins. Co., 95
N.J.Law, 533, 112 A. 859, 860, 14 A.L.R. 983.
A passenger in an airplane, whether he takes part in its
operation or not, "participates in aeronautics" within the
meaning of an insurance policy. Meredith v. Business
Men's Acc. Ass'n of America, 213 Mo.App. 688, 252 S.W.
976, 977. Contra as to a transport airplane passenger who
could not pilot an airplane, had no knowledge of flying,
and at time of accident was traveling on private business.
Gregory v. Mutual Life Ins. Co. of New York, C.C.A.Ark.,
78 F.2d 522, 524. As to an insured, who was a fare-paying
passenger on a commercial transport plane over an established route while plane was wholly under the control of
others. Bayersdorfer v. Massachusetts Protective Ass'n,
D.C.Ohio, 20 F.Supp. 489, 492. A father riding with son as
guest in airplane purchased by father for son. Day v.
Equitable Life Assur. Soc. of U. S., C.C.A.Colo., 83 F.2d
147, 149. And where insured after alighting from a flight,
in bending over to avoid a wire, was struck by the propeller of the aeroplane. Tierney v. Occidental Life Ins. Co. of
California, 89 Cal.App. 779, 265 P. 400, 401.
'ESTIMATIO
head.
In Saxon law, the estimation or valuation of the head ;
the price or value of a man. The price to be paid for taking the life of a human being. By the laws of Athelstan,
the life of every man not excepting that of the king himself, was estimated at a certain price, which was called
the were, or cestimatio capitis. Crabb, Eng.Law, c. 4.
'ETAS.
Lat. In the civil law. Age.
"ESTIMATIO PRIETERITI DELICTI EX POSTREMO FACTO NUNQUAM CRESCIT. The weight
of a past offense is never increased by a subsequent fact. Bacon.
'ETAS
INFANTIZE (also written infantili)
PROXIMA. The age next to infancy; the first
half of the period of childhood (pueritia,) extending from seven years to ten and a half. Inst. 3,
20, 9; 4 Bl.Comm. 22. See Age.
'ETAS LEGITIMA. Lawful age; the age of
twenty-five. Dig. 3, 5, 27, pr.; Id. 26, 2, 32, 2; Id.
27, 7, 1, pr.
'ETAS
PERFECTA. Complete age; full age;
the age of twenty-five. Dig. 4, 4, 32; Id. 22, 3,
25, 1.
See, also, Aircraft; Airship; Airport; Airway;
Aviation.
'ETAS
PRIMA. The first age; infancy, (tinfan-
tia). Cod. 6, 61, 8, 3.
AEROPLANE. See Aircraft; Hydro-Aeroplane;
Seaplane.
AEROSTATICS. "Ae"cstatics" is divided into two
main branches; aer: ,, ation dealing, properly,
with machines, which, like balloons, are lighter
than air, and aviation dealing with the problem of
artificial flight by means of flying machines,
which, like birds, are heavier than air. Swasey v.
Massachusetts Protective Ass'n, C.C.A.Ariz., 96
F.2d 265, 266.
CAPITIS. Lat. The value of a
'ETAS PUBERTATI PROXIMA. The age next
to puberty; the last half of the period of childhood (pueritia), extending from ten and a half
years to fourteen, in which there might or might
not be criminal responsibility according to natural
capacity or incapacity. Inst. 3, 20, 9; 4 Bl.Comm.
22. See Age.
"ETATE
PROBANDA. A writ which inquired
whether the king's tenant holding in chief by
chivalry was of full age to receive his lands. It
was directed to the escheater of the county. Now
disused.
AEROSTATION. See Aerostatics, and Aeronautics, note.
"ES.
Lat. In the Roman law, money, (literally,
brass;) metallic money in general, including gold.
Dig. 9, 2, 2, pr.; Dig. 9, 2, 27, 5; Dig. 50, 16, 159.
"ETHELING.
In Saxon law, a noble; generally
a prince of the blood.
AFFAIR. (Fr.). A law suit.
The term frequently refers to an amour; intrigue; liaison.
"ES
ALIENUM. A civil law term signifying a
debt. Literally translated, the money of another; the civil law considered borrowed money as
78
AFFIDARI
for storage of grain, .banks, and insurance companies.
Rohrer v. Milk Control Board, 121 Pa.Super. 281, 184 A.
133, 138.
AFFAIRS. An inclusive term, bringing within
its scope and meaning anything that a person may
do. Walker v. United States, C.C.A.Mo., 93 F.2d
383, 391.
AFFECTIO TUA NOIVIEN IMPONIT OPERI TUO.
Your disposition (or motive, intention) gives
name (or character) to your work or act. Bract.
fol. 2b, 101b.
A person's concerns in trade or property; business.
Bragaw v. Bolles, 51 N.J.Eq. 84, 25 A. 947. That which is
done or to be clone. Wicks v. City and County of Denver,
61 Colo. 266, 156 P. 1100, 1103. A corporation's borrowing
money, and methods of obtaining loans. Cameron v. First
Nat. Bank, Tex.Civ.App., 194 S.W. 469, 470. Person and
estate of alleged incompetent. State ex rel. Bevan v. Williams, 316 Mo. 665, 291 S.W. 481, 482. General operations
carried on by an employer. Gocs v. Thomas E. Coale Coal
Co., 142 Pa.Super. 479, 16 A.2d 720, 723.
AFFECTION. The making over, pawning, or
mortgaging of a thing to assure the payment of
a sum of money, or the discharge of some other
duty or service. Crabb, Technol.Dict.
In a medical sense, an abnormal bodily condition. A
local "affection" is not a local disease within the
meaning of an insurance policy, un l ess the affection has
sufficiently developed to have some bearing on the general
health. Cady v. Fidelity & Casualty Co. of New York, 134
Wis. 322, 113 N.W. 967, 971, 17 L.R.A.,N.S., 260.
AFFECT. To act upon; influence; change; enlarge or abridge; often used in the sense of acting
injuriously upon persons and things. Ryan v.
Carter, 93 U.S. 84, 23 L.Ed. 807; Tyler v. Wells, 2
Mo.App. 538; Holland v. Dickerson, 41 Iowa 373;
Meurer v. Hooper, Tex.Civ.App., 271 S.W. 172, 177.
Does not mean to impair. Harris v. Friend, 24
N.M. 627, 175 P. 722, 725. To lay hold of or attack (as a disease does) ; to act, or produce an
effect upon; to impress or influence (the mind or
feelings) ; to touch. State v. Hurd, 5 Wash.2d
308, 105 P.2d 59, 61, 62. Acted upon, influenced,
concerned. In re National Lock Co., D.C.Ill., 9 F.
Supp. 432, 433. Implies an indirect relation.
Chapman v. Home Ice Co., D.C.Tenn., 43 F.Supp.
424, 428.
AFFECTUS. Disposition; intention, impulse or
affection of the mind. One of the causes for a
challenge of a juror is propter affectum, on account of a suspicion of bias or favor. 3 Bl.Comm.
363; Co.Litt. 156.
AFFECTUS PUNITUR LICET NON SEQUATUR
EFFECTUS. The intention is punished although
the intended result does not follow. 9 Coke, 55.
AFFEER. To assess, liquidate, appraise, fix in
amount.
Account
To confirm it on oath in the exchequer. Cowell ;
Blount; Spelman.
Amercement
To establish the amount which one amerced in a courtleet should pay. See Amercement.
AFFECTED WITH A PUBLIC INTEREST. Affirmatively, phrase means that a business or property must be sun or be so employed as to justify
the conclusion that it has been devoted to a public use, and its use thereby in effect granted to
the public. Negatively, it does not mean that a
business is affected with a public interest merely
because it is large or because the public are warranted in having a feeling of concern in respect
of its maintenance. H. Earl Clack Co. v. Public
Service Commission of State of Montana, 94 Mont.
488, 22 P.2d 1056.
AFFEERORS. Persons who, in court-leets, upon
oath, settle and moderate the fines and amercements imposed on those who have committed offenses arbitrarily punishable, or that have no express penalty appointed by statute. They are also appointed to moderate fines, etc., in courtsbaron. Cowell.
A business given a virtual monopoly in its field or where
the public adapt their business or conduct to the methods
used by it. Western Buse Telephone Co. v. Northwestern
Bell Telephone Co., 188 Minn. 524, 248 N.W. 220, 229. The
business must affect the prosperity of a large part of file
members of the body politic. Ex parte Kazas, 22 Cal.App.
2d 161, 70 P.2d 962, 967. This phrase means something
more than "quasi public," or "not strictly private," and
similar phrases employed as a basis for upholding police
regulations. A business is not affected with a public interest merely because the public derives benefit, accommodation, ease or enjoyment from its existence or operation,
such as admissions to places of amusement or entertainment. Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 S.Ct. 426, 429, 71 L.Ed. 718, 58 A.L.R.
1236.
Businesses. Three classes of such businesses : (1) Those
carried on under the authority of a public grant or privilege expressly or impliedly imposing an affirmative duty of
rendering public service demanded by the public, such as
common carriers and public utilities ; (2) occupations
regarded as exceptional, the public interest attaching to
which has been recognized from earliest times and has survived the period of arbitrary laws by Parliament or colonial legislatures for regulating trades and callings, such as
inns, cabs, and grist mills ; (3) businesses which, though
not public at their inception, have become such by devoting their business to a public use, thereby granting the
public an interest in that use and subjecting themselves to
public regulation to extent of that interest, although the
property continues to belong to its private owner, and to
be entitled to protection accordingly, as public warehouses
AFFERMER. L. Fr. To let to farm. Also to
make sure, to establish or confirm. Kelham.
AFFIANCE. To assure by pledge. A plighting
of troth between man and woman. Littleton, §
39.
An agreement by which a man and woman
promise each other that they will marry together.
Pothier, Traitó du Mar, n. 24. Co.Litt. 34 a. See
Dig. 23, 1, 1; Code, 5. 1. 4.
AFFIANT. The person who makes and subscribes an affidavit. The word is used, in this
sense, interchangeably with "deponent." But the
latter term should be reserved as the designation
of one who makes a deposition.
AFFIDARE. To swear faith to; to pledge one's
faith or do fealty by making oath. Cowell. Used
of the mutual relation arising between landlord
and tenant; 1 Washb.R.P. 19; 1 Bla.Com. 367;
Termes de la Ley, Fealty. Affidavit is of kindred
meaning.
AFFIDARI. To be mustered and enrolled for soldiers upon an oath of fidelity.
79
AFFIDATIO
AFFIDATIO. A swearing of the oath of fidelity
or of fealty to one's lord, under whose protection
the quasi-vassal has voluntarily come. Brown.
must contain a statement, clearly and certainly
expressed, by some one acquainted with the fact,
of an indebtedness from the defendant to the
plaintiff, and must show a distinct cause of action;
1 Chit.P1. 165.
AFFIDATIO DOMINORUM. An oath taken by
the lords in parliament.
AFFIDATUS. One who is not a vassal, but who
for the sake of protection has connected himself
with one more powerful. Spelman; 2 Bl.Comm.
46.
AFFILARE. L. Lat. To put on record; to file
or affile. Affiletur, let it be filed. 8 Coke, 160.
De recordo affilatum, affiled of record. 2 Ld.
Raym. 1476.
AFFILE. A term employed in old practice, signifying to put on file. 2 Maule & S. 202. In modern
usage it is contracted to file.
AFFIDAVIT. A written or printed declaration or
statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party
making it, taken before an officer having authority to administer such oath. Cox v. Stern, 170
Ill. 442, 48 N.E. 906, 62 Am.St.Rep. 385; Hays v.
Loomis, 84 Ill. 18. A statement or declaration reduced to writing, and sworn to or affirmed before
some officer who has authority to administer an
oath or affirmation. Shelton v. Berry, 19 Tex. 154,
70 Am.Dec. 326, and In re Breidt, 84 N.J.Eq. 222,
94 A. 214, 216.
A written or printed declaration or statement of facts,
made voluntarily, and confirmed by the oath or affirmation
of the party making it, taken before an officer having
authority to administer such oath. June v. School Dist.
No. 11, Southfield Tp., 283 Mich. 533, 278 N.W. 676, 677, 116
A.L.R. 581. Any voluntary ex parte statement reduced to
writing and sworn to or affirmed before some person
legally authorized to administer oath or affirmation, made
without notice to adverse party and without opportunity
to cross-examine. Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d
434, 435, 436. The word sometimes includes "depositions."
U. S. v. Kaplan, D.C.Ga., 286 F. 963, 970.
"Affidavits" are of two kinds; those which serve as evidence to advise the court in the decision of some preliminary issue or determination of some substantial right, and
those which merely serve to invoke the judicial power.
Worthen v. State, 189 Ala. 395, 66 So. 686, 688.
AFFIDAVIT OF DEFENSE. An affidavit stating
that the defendant has a good defense to the
plaintiff's action on the merits. The statements
required in such an affidavit vary considerably in
the different states where they are required.
Called also an affidavit of merits (q. v.), as in
Massachusetts.
AFFIDAVIT OF DEMAND. "Affidavit of de-
mand" filed under Code section to obtain judgment for want of affidavit of defense held not
equivalent of "declaration." Penn Central Light
& Power Co. v. Central Eastern Power Co., 6 W.
W.Harr. 74, 171 A. 332.
AFFIDAVIT OF MERITS. One setting forth that
the defendant has a meritorious defense (substantial and not technical) and stating the facts constituting the same. Palmer v. Rogers, 70 Iowa
381, 30 N.W. 645. Represents that, on the substantial facts of the case, justice is with the affiant. Wendel v. Wendel, 58 S.D. 438, 236 N.W.
468, 469.
AFFILIATE. Signifies a condition of being united, being in close connection, allied, or attached as
a member or branch. Johanson v. Riverside
County Select Groves, 4 Cal.App.2d 114, 40 P.2d
530, 534.
"Affiliate with" is defined as to receive on friendly
terms; to associate with; to be intimate with; to sympathize with; to consort with; and to connect or associate
one's self with. Wolck v. Weedin, C.C.A.Wash., 58 F.2d
928, 930. But "affiliated" does not bear construction that
one of affiliated organizations is in all particulars identical
with or covered by parent organization with which it may
be said to be affiliated. People v. Horiuchi, 114 Cal.App.
415, 300 P. 457, 460.
AFFILIATION. Imports less than membership
in an organization, but more than sympathy, and
a working alliance to bring to fruition the proscribed program of a proscribed organization, as
distinguished from mere co-operation with a proscribed organization in lawful activities, is essential. Bridges v. Wixon, Cal., 326 U.S. 135, 65
S.Ct. 1443, 1447, 89 L.Ed. 2103.
It includes an element of dependability upon which the
organization can rely which, though not equivalent to
membership duty, rests upon course of conduct that could
not be abruptly ended without giving at least reasonable
cause for charge of breach of good faith. U. S. ex rel.
Kettunen v. Reimer, C.C.A.N.Y., 79 F.2d 315, 317.
The act of imputing or determining the paternity of a bastard child, and the obligation to maintain it.
Corporations
Actual control of corporations by same interests
is insufficient; legally enforceable control of stock
of corporations by same interests being required.
Island Petroleum Co. v. Commissioner of Internal
Revenue, C.C.A., 57 F.2d 992, 994. Commences
with acquisition of corporation from owners outside of group and ends with disposal of all properties or stock to those outside group. Hernandez
v. Charles Ilfeld Co., C.C.A.N.M., 66 F.2d 236, 238.
Ecclesiastical Law
A condition which prevented the superior from
removing the person affiliated to another convent.
Guyot, Repert.
AFFIDAVIT OF SERVICE. An affidavit intend-
French Law
A species of adoption which exists by custom in
some parts of France. The person affiliated succeeded equally with other heirs to the property acquired by the deceased to whom he had been affiliated, but not to that which he inherited.
ed to certify the service of a writ, notice, or other
document.
AFFIDAVIT TO HOLD TO BAIL. An affidavit
required in many cases before the defendant in
a civil action may be arrested. Such an affidavit
80
AFFIRMATION
Pleading
To allege or aver a matter of fact; to 'state it
affirmatively; the opposite of 'deny or traverse.
AFFINAGE. A refining of metals. Blount.
AFFINES. In the civil law, connections by marriage, whether of the persons or their relatives.
Calvinus, Lex.
Neighbors, who own or occupy adjoining
lands. Dig. 10, 1, 12.
Practice
To make affirmation; to make a solemn and
formal declaration or asseveration that an affidavit is true, that the witness will tell the truth,
etc., this being substituted for an oath in certain
cases. Also, to give testimony on affirmation.
From this word we have affinity, denoting relationship
by marriage; 1 Bla.Com. 434. The singular, affinis, is
used in a variety of related significations—a boundary; Du
Cange; a partaker or sharer, affinis culpce (an aider or
one who has knowledge of a crime) ; Calvinus, Lex.
AFFIRMANCE. In practice. The confirming, or
ratifying of a former law, or judgment. Cowell;
Blount.
The confirmation and ratification by an appellate court of a judgment, order, or decree of a
lower court brought before it for review. See Affirm, note.
The ratification or confirmation of a voidable
contract or act by the party who is to be bound
thereby.
AFFINIS MEI AFFINIS NON EST MIHI AFFINIS. One who is related by marriage to a person related to me by marriage has no affinity to
me. Shelf.Mar. & Div. 174.
AFFINITAS. Lat. In the civil law, affinity; relationship by marriage. Inst. 1, 10, 6.
AFFINITAS AFFINITATIS. Remote relationship by marriage. That connection between parties arising from marriage which is neither consanguinity nor affinity. Davidson v. Whitehill, 87
Vt. 499, 89 A. 1081, 1085. This term signifies the
connection between the kinsmen of the two persons married, as, for example, the husband's
brother and the wife's sister. Erskine, Inst. 1. 6. 8.
The term is in accuracy to be distinguished from ratification, which is a recognition of the validity or binding
force as against the party ratifying, of some act performed
by another person; and from confirmation, which would
seem to apply more properly to cases where a doubtful
authority has been exercised by another in behalf of the
person ratifying; but these distinctions are not generally
observed with much care.
AFFINITY. A close agreement; relation; spiritual relation or attraction held to exist between
certain persons. State ex inf. Norman v. Ellis,
325 Mo. 154, 28 S.W.2d 363, 367. Relation which,
one spouse because of marriage has to blood relatives of the other. State v. Hooper, 140 Kan. 481,
37 P.2d 52.
AFFIRMANCE DAY GENERAL. In the English
court of exchequer, a day appointed by the judges
of the common pleas, and barons of the exchequer, to be held a few days after the beginning of
every term for the general affirmance or reversal
of judgments. 2 Tidd, Pr. 1091.
Degrees of relationship by affinity are computed as are
degrees of relationship by consanguinity. The doctrine of
affinity grew out of the canonical maxim that marriage
makes husband and wife one. The husband has the same
relation, by affinity, to his wife's blood relatives as she has
to them by consanguinity and vice versa. State v. Hooper,
140 Kan. 481, 37 P.2d 52.
Affinity is distinguished into three kinds : (1) Direct, or
that subsisting between the husband and his wife's relations by blood, or between the wife and the husband's relations by blood; (2) secondary, or that which subsists
between the husband and his wife's relations by marriage ;
(3) collateral, or that which subsists between the husband
and the relations of his wife's relations. Wharton.
AFFIRMANT. A person who testifies on affirmation, or who affirms instead of taking an oath.
See Affirmation. Used in affidavits and depositions which are affirmed, instead of sworn to in
place of the word "deponent."
AFFIRMANTI, NON NEGANTI INCUMBIT
PROBATIO. The [burden of] proof lies upon
him who affirms, not upon one who denies. Steph.
Pl. 84.
AFFIRMANTIS EST PROBARE. He who affirms
must prove. Porter v. Stevens, 9 Cush., Mass.,
535.
In a larger sense, consanguinity or kindred.
Co.Litt. 157a.
Quasi Affinity
In the civil law, the affinity which exists between two persons, one of whom has been betrothed to a kinsman of the other, but who have
never been married.
AFFIRMATION. In practice, a solemn and formal declaration or asseveration that an affidavit
is true, that the witness will tell the truth, etc.,
this being substituted for an oath in certain cases.
A solemn religious asseveration in the nature of
an oath. 1 Greenl.Ev. § 371.
AFFIRM. To ratify, make firm, confirm, establish, reassert. Cowell; Ashby v. Peters, 128 Neb.
338, 258 N.W. 639, 644, 99 A.L.R. 843.
Quakers, as a class, and other persons who have conscientious scruples against taking an oath, are allowed to
make affirmation in any mode which they may declare to
be binding upon their consciences, in confirmation of the
truth of testimony which they are about to give. 1 Atk.
21, 46; Cowp. 340, 389; 1 Leach Cr.Cas. 64; 1 Ry. &
M. 77.
In the practice of appellate courts, to affirm a judgment,
decree, or order, is to declare that it is valid and right,
and must stand as rendered below; to ratify and reassert
it; to concur in its correctness and confirm its efficacy.
Boner v. Fall River County Bank, 25 Wyo. 260, 168 P. 726,
727.
AFFIRMATION OF FACT. A statement concerning a subject-matter of a transaction which might
otherwise be only an expression of opinion but
which is affirmed as an existing fact material to
Contracts
Ratify and accept voidable contract. Cf. Adopt.
Black's Law Dictionary Revised 4th Ed.-6
81
AFFIRMATIO UNIUS
t lie transaction, and reasonably induces the other
party to consider and rely upon it, as a fact.
Stone v. McCarty, 64 Cal.App. 158, 220 P. 690, 694.
AFFIRMATIVE RELIEF. Relief, benefit, or compensation which may be due and granted to defendant. Garner v. Hannah, 6 Duer, N.Y., 262.
Relief for which defendant might maintain an action independently of plaintiff's claim and on
which he might proceed to recovery, although
plaintiff abandoned his cause of action or failed
to establish it. Southwestern Surety Ins. Co. v.
Walser, 77 Okl. 240, 188 P. 335, 336.
AFFIRMATIO UNIUS EXCLUSIO EST ALTERICS. The affirmance of one thing is the exclusion
of the other. State v. Evans, 214 La. 472, 38 So.2d
140, 147.
AFFIRMATIVE. That which declares positively;
that which avers a fact to be true; that which
establishes; the opposite of negative.
AFFIRMATIVE STATUTE. A statute couched in
affirmative or mandatory terms. 1 Bl.Comm. 142.
The party who, upon the allegations of pleadings joining
issue, is under the obligation of making proof, in the first
instance, of matters alleged, is said to hold the affirmative,
or, in other words, to sustain the burden of proof. Abbott.
One which directs the doing of an act, or declares what
shall be done ; as a negative statute is one which prohibits
a thing from being done, or declares what shall not be
done. Blackstonp describes affirmative acts of parliament
as those "wherein justice is directed to be done according
to the law of the land." 1 Bl.Comm. 142.
As to affirmative "Damages," "Plea," "Proof,"
"Warranty," see those titles.
AFFIRMATIVE ACTION. The "affirmative action" which the National Labor Relations Board '
is authorized to take to effectuate the policies of
the National Labor Relations Act is action to
make effective the redress of rights conferred
upon employees by the act. National Labor Relations Board v. National Casket Co., C.C.A.2, 107
F.2d 992, 998.
It is broad, but is not unlimited, is remedial not punitive, and is to be exercised in aid of the Board's authority
to restrain violations and as a means of removing or avoiding the consequences of violations. National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U.S.
240, 59 S.Ct. 490, 497, 83 L. Ed. 627, 123 A.L.R. 599.
It is not disciplinary. National Labor Relations Board
v. Leviton Mfg. Co., C.C.A.2, 111 F.2d 619, 621.
AFFIRMATIVE WARRANTY. Affirms existence
of a fact at time policy is entered into, while
promissory warranty requires that something be
done or not done after policy has taken effect.
Sentinel Life Ins. Co. v. Blackmer, C.C.A.Colo.,
77 F.2d 347, 350.
AFFIX. Fix or fasten in any way, to attach
physically. Penn v. Dyba, 115 Cal.App. 67, 1 P.2d
461, 464. To attach to, inscribe, or impress upon,
as a signature, a seal, a trade-mark. Pen.Code
N.Y. § 367. To attach, add to, or fasten upon, permanently, as in the case of fixtures annexed to
real estate.
A thing is deemed to be affixed to land when . it is
attached to it by the roots; as in the case of trees, vines,
or shrubs ; or imbedded in it, as in the case of walls ; or
permanently resting upon it, as in the case of buildings ;
or permanently attached to what is thus permanent, as by
means of cement, plaster, nails, bolts, or screws. Miller
v. Waddingham, 3 Cal.Unrep.Cas. 375, 25 Pac. 688, 11
L.R.A. 510; Tolle v. Vandenberg, 44 Okl. 780, 146 P. 212,
213.
AFFIRMATIVE AUTHORIZATION. Something
more than authority by mere implication. White,
Gratwick & Mitchell v. Empire Engineering Co.,
125 Misc. 47, 210 N.Y.S. 563, 572.
AFFIRMATIVE CHARGE. The general "affirmative charge" is an instruction to the jury that,
whatever the evidence may be, defendant cannot
be convicted under the count in the indictment to
which the charge is directed. Coker v. State, 18
Ala.App. 550, 93 So. 384, 386.
AFFIXING. Securely attached. Mechanics' Nat.
Bank of Trenton v. Newman, 137 Misc. 587, 244
N.Y.S. 529, 531.
AFFIRMATIVE DEFENSE. In code pleading.
New matter constituting a defense; new matter
which, assuming the complaint to be true, constitutes a defense to it. Carter v. Eighth Ward
Bank, 33 Misc. 128, 67 N.Y.S. 300.
AFFIXUS. In the civil law, affixed, fixed, or fastened to.
AFFIRMATIVE EASEMENT. An "affirmative
easement" is one which gives to the owner of the
dominant tenement the right to use the servient
tenement, or to do some act thereon which would
otherwise be unlawful. Clements v. Taylor, Tex.
Civ.App., 184 S.W.2d 485, 487.
AFFORARE. To set a price or value on a thing.
Blount.
AFFLICTION. A distress of mind or body; that
which causes continuing anguish or suffering.
AFFORATUS. Appraised or valued, as things
vendible in a market. Blount.
AFFORCE. To add to; to increase; to strengthen; to add force to.
AFFIRMATIVE PREGNANT. In pleading, an affirmative allegation implying some negative in
favor of the adverse party. Fields v. State, 134
Ind. 46, 32 N.E. 780.
AFFORCE THE ASSIZE. In old English practice,
a method of securing a verdict, where the jury
disagreed, either by confining them without meat
and drink, or, more anciently, by adding other
jurors to the panel, to a limited extent, until
twelve could be found who were unanimous.
Bract. fol. 185b, 292a; Fleta, lib. 4, c. 9, § 2; 2
Reeve, Hist.Eng.Law, 267.
AFFIRMATIVE PROOF. Such evidence of the
truth of matters asserted as tends to establish
them, regardless of character of evidence offered.
Glass v. Newport Clothing Co., 110 Vt. 368, 8 A.2d
651, 654.
82
AFTER-BORN
AFFORCIAMENTUM. In old English law, a
fortress or stronghold, or other fortification. Cowell.
The calling of a court upon a solemn or extraordinary occasion. Id.
AFFOREST. To convert land into a forest in the
legal sense of the word.
AFORESAID. Before, or already said, mentioned,
or recited; premised. Plowd. 67. Alabama Great
Southern R. Co. v. Smith, 191 Ala. 643, 68 So. 56,
57. Foresaid is used in Scotch law.
Although the words "preceding" and "aforesaid" generally mean next before, and "following" means next
after, yet a different signification will be given to them if
required by the context and the facts of the case. Simpson
v. Robert, 35 Ga. 180.
AFFORESTATION. The turning of a part of a
country into forest or woodland or subjecting it
to forest law, q. v.
AFORETHOUGHT. In criminal law, deliberate;
planned; premeditated; prepense. State v. Fiske,
63 Conn. 388, 28 A. 572. See Malice Aforethought;
Premeditation; 4 Bla.Com. 199; Respublica v.
Mulatto Bob, 4 Da11., Pa., 146, 1 L.Ed. 776; U. S.
v. Cornell, 2 Mas. 91, Fed.Cas.No.14,868.
AFFOUAGE. In French law, the right of the inhabitants of a commune or section of a commune
to take from the forest the fire-wood which is
necessary for their use. Duverger.
"Aforethought" as used in the law of murder means
thought of beforehand and for any length of time, however
short, before the doing of the act, and is synonymous with
premeditation. State v. Smith, 26 N.M. 482, 194 P. 869,
872.
AFFRANCHIR. L. Fr. To set free. Kelham.
AFFRANCHISE. To liberate; to make free.
AFRICAN DESCENT. Persons of African nativity or of "African descent" within the meaning of
the Naturalization Act, as amended by Act July
14, 1870 (8 U.S.C.A. § 703 note), are members of
the negro races of Africa or their descendants by
intermixture with races constituting free white
persons, the negro races referred to being those
from which the emancipated slaves in the United
States descend. Ex parte Shahid, D.C.S.C., 205
F. 812, 815.
AFFRAY. The fighting of two or more persons
in some public place to the terror of the people.
Wallace v. Commonwealth, 207 Ky. 122, 268 S.W.
809, 813.
Where two or more persons voluntarily or by agreement
engage in any fight, or use any blows or violence towards
each other in an angry or quarrelsome manner, in any
public place to the disturbance of others.
Words are insufficient, but if one person, by such abusive
language toward another as is calculated and intended to
bring on a fight, induces the other to strike him, both are
guilty of "affray." State v. Maney, 194 N.C. 34, 138 S.E.
441, 442.
It differs from a riot in not being premeditated. Hawk.
P.C. bk. 1, c. 65, § 3; 4 Bl.Comm. 146; 1 Russ.Crimes, 271.
AFTER. Later, succeeding, subsequent to, inferior in point of time or of priority or preference.
AFFRECTAMENTUM. Affreightment; a contract for the hire of a vessel. From the Fr. fret,
which, according to Cowell, meant tons or tonnage. Affreightamentum was sometimes used.
Du Cange.
Subsequent in time to. Cheney v. National Surety Corporation, 256 App.Div. 1041, 10 N.Y.S.2d 706. At. Hyman
Bros. Box & Label Co. v. Industrial Accident Commission,
180 Cal. 423, 181 P. 784, 786. On and after New York Trust
Co. v. Portland Ry. Co., 197 App.Div. 422, 189 N.Y.S. 346,
348. "At the end of" or "as soon as," and in computation
of time, is generally understood in sense of excluding
day of date mentioned. Taylor v. National Life & Accident Ins. Co., Tex.Civ.App., 63 S.W.2d 1082, 1083. But the
words "after the filing" as used in sections 63 and 68 of the
Bankruptcy Act (11 U.S.C.A. §§ 103, 108) do not mean the
day after that of filing, but refer to the very instant of filing if ascertainable. In re Ledbetter, D.C.Ga., 267 F. 893,
896. A note payable generally "after date," is payable on
demand. Love v. Perry, 19 Ga.App. 86, 90 S.E. 978, 979.
AFFREIGHTMENT. A contract of affreightment
is a contract with a ship-owner to hire his ship,
or part of it, for the carriage of goods. The Fred
Smartley, Jr., C.C.A.Va., 100 F.2d 971, 973.
Such a contract generally takes the form either of a
charter-party or of a bill of lading. Bramble v. Culmer, 78
Fed. 501, 24 C.C.A. 182. A contract to transport goods constitutes a contract of "affreightment," although there is
towage service connected therewith. The Independent,
D.C.La., 37 F.Supp. 106, 111.
In French law, freighting and affreighting are distinguished. The owner of a ship freights it, (le frete;) he
is called the freighter, (freteur;) he is the letter or lessor,
(locateur, locator.) The merchant affreights (affrete) the
ship, and is called the affreighter, (affreteur;) he is the
hirer, (locataire, conductor.) Emerig. Tr. des Ass. c. 11,
§ 3.
AFTER-ACQUIRED. Acquired after a particular
date or event. Thus, a judgment is a lien on af ter-acquired realty, i. e., land acquired by the debtor after entry of the judgment. Hughes v.
Hughes, 152 Pa. 590, 26 A. 101.
AFTER ACQUIRED TITLE. Doctrine under
which title acquired by grantor who previously
attempted to convey title to land which he did
not in fact own, inures automatically to benefit
of prior grantees. Perkins v. White, Miss., 43
So.2d 897, 899; Morris v. Futischa, 194 Okl. 224,
148 P.2d 986, 987.
AFFRETEMENT. Fr. In French law, the hiring
of a vessel; affreightment (q. v.). Called also
nolissement. Ord.Mar. liv. 1, tit. 2, art. 2; Id.
liv. 3, tit. 1, art. 1.
AFTER-BORN CHILD. A statute making a will
void as to after-born children means physical
birth, and is not applicable to a child legitimated
by the marriage of its parents. Appeal of McCulloch, 11.3 Pa. 247, 6 A. 253. See En Ventre Sa
Mere; Posthumous Child.
AFFRI. In old English law, plow cattle, bullocks
or plow horses. Affri, or afri carucce; beasts of
the plow. Spelman.
AFFRONT. An insult or indignity; assault, insololence.
83
AFTER-DISCOVERED
AFTER-DISCOVERED. Discovered or made
known after a particular date or event.
AGAINST THE WEIGHT OF THE EVIDENCE,
"Contrary to the evidence". Russell v. Pilger,
113 Vt. 537, 37 A.2d 403, 411.
AFTER-DISCOVERED EVIDENCE. See Evidence.
AGAINST THE WILL. Technical words which
must be used in framing an indictment for robbery from the person, rape and some other offenses. Whittaker v. State, 50 Wis. 521, 7 N.W.
431, 36 Am.St.Rep. 856.
AFTER SIGHT. This term as used in a bill payable so many days after sight, means after legal
sight; that is, after legal presentment for acceptance. The mere fact of having seen the bill
or known of its existence does not constitute legal "sight." Mitchell v. Degrand, 17 Fed.Cas.
494.
AGALMA. An impression or image of anything
on a seal. Cowell.
AGARD. L. Fr. An award. Nul fait agard; no
award made.
AFTERMATH. A second crop of grass mown in
the same season; also the right to take such second crop. See 1 Chit.Gen.Pr. 181.
AGARDER. L. Fr. To award, adjudge, or determine; to sentence, or condemn.
"Aftermath" as used in the manufacture of window glass
means the colder glass remaining on and in molten bath
after drawing of glass cylinder. Okmulgee Window Glass
Co. v. Window Glass Mach. Co., C.C.A.Okl., 265 F. 626,
630.
AGE. The length of time during which a person
has lived; the time at which one attains full personal rights and capacities. In law the term signifies those periods in the lives of persons of both
sexes which enable them to do certain acts which,
before they had arrived at those periods, they
were prohibited from doing. 2 C.J.S., p. 1013.
As used in particular statutes, the term implies
disability and, by definition, has been applied to
all minors under a certain age and to others disabled by old age. Hampton v. Ewert, C.C.A.Okl.,
22 F.2d 81, 87.
AFTERNOON. May mean the whole time from
noon to midnight, or it may mean the earlier part
of that time as distinguished from evening.
Clevenger v. Carl B. King Drilling Co., Tex.Civ.
App., 62 S.W.2d 1001. But ordinarily means that
part of day between noon and evening. Buttrick
v. Woman's Hospital Aid Ass'n, 87 N.H. 194, 177
A. 416, 418.
AFTERTHOUGHT. A thought composed after
the event and with deliberation. A devise to escape difficulty.
Age and schooling certificate. Collings-Taylor Co. v.
American Fidelity Co., 96 Ohio St. 123, 117 N.E. 158.
Age fixed by law. Johnson v. Travelers' Ins. Co., 147
Or. 345, 32 P.2d 587.
Age of consent. Ex parte Hutchens, 296 Mo. 331, 246
S. W. 186, 189.
Age of legal consent. Johnson v. Alexander, 39 Cal.App.
177, 178 P. 297; Fisher v. Bernard, 65 Vt. 663, 27 A. 316.
Age of majority. Gates v. Shaffer, 72 Wash. 451, 130 P.
896.
Age of maturity. Commercial Bank & Trust Co. v.
Noble, 112 So. 691, 146 Miss. 552.
Age of twenty-one years. Vanderbilt v. Eidman, 196 U.S.
480, 25 S.Ct. 331, 49 L. Ed. 563.
AFTERWARD, AFTERWARDS. Subsequent in
point of time; synonymous with "thereafter,"
Lamoutte v. Title Guaranty & Surety Co., 165 App.
Div. 573, 151 N.Y.S. 148, 154, or with "then,"
Boyce v. Mosely, 102 S.C. 361, 86 S.E. 771, 772.
AGAINST. Adverse to; contrary, Cram v. Meagher, 113 Vt. 463, 35 A.2d 855, In re Dean's Estate,
350 Mo. 494, 166 S.W.2d 529, 533. Signifies discord
or conflict; opposed to; without the consent of; in
contact with. Palmer v. Superior Mfg. Co., D.C.
N.Y., 203 F. 1003, 1005, Clemens v. Perry, Tex.Civ.
App., 29 S.W.2d 529, 533. Sometimes meaning
"upon," which is almost, if not altogether, synonymous with word "on." Northern Pac. Ry. Co.
v. Gas Development Co., 103 Mont. 214, 62 P.2d
204, 205. Denoting manifestation of raped woman's utmost reluctance and greatest resistance.
State v. Egner, 317 Mo. 457, 296 S.W. 145, 146.
Legal Age. See Legal Age.
Legal school age. Inhabitants of Needham v.
Wellesley, 139 Mass. 372, 31 N.E. 732.
AGE, Awe, Aive. L. Fr. Water. Kelham.
AGE PRAYER. A suggestion of nonage, made by
an infant party to a real action, with a prayer
that the proceedings may be deferred until his
full age. It is now abolished. St. 11 Geo. IV.; 1
Wm. IV. c. 37, § 10; 1 Lil.Reg. 54; 3 Bl.Comm. 300.
AGAINST THE EVIDENCE. Means "against the
weight of the evidence." Cram v. Meagher, 113
Vt. 463, 35 A.2d 855.
AGENCY. Includes every relation in which one
person acts for or represents another by latter's
authority, Saums v. Parfet, 270 Mich. 165, 258
N.W. 235, where one person acts for another, either in the relationship of principal and agent,
master and servant, or employer or proprietor
and independent contractor, Gorton v. Doty, 57
Idaho 792, 69 P.2d 136, 139.
Properly speaking, agency relates to commercial or business transactions. Humble Oil & Refining Co. v. Bell, Tex.Civ.App., 172 S.W.2d 800,
AGAINST THE FORM OF THE STATUTE. Technical words which must be used in framing an indictment for a breach of the statute prohibiting
the act complained of. The Latin phrase is contra forman statuti, q. v. State v. Murphy, 15 R.I.
543, 10 A. 585.
AGAINST THE PEACE. A technical phrase used
in alleging a breach of the peace. See Contra
Pacem. State v. Tibbetts, 86 Me. 189, 29 A. 979.
84
AGENT
Ostensible agency. One which exists where the principal
intentionally or by want of ordinary care causes a third
person to believe another to be his agent who is not really
employed by him. Weidenaar v. N. Y. Life Ins. Co., 36
Mont. 592, 94 P. 1, 6. See, also, Agency by Estoppel.
803, and frequently is used in connection with an
arrangement which does not: in law amount to
an agency, as where the essence of an arrangement is bailment or sale, as in the case of a sale
agency exclusive in certain territory. State Cornpensation Ins. Fund v. Industrial Accident Cornmission, 216 Cal. 351, 14 P.2d 306, 310.
It also designates a place at which business of
company or individual is transacted by an agent.
Johnson Freight Lines v. Davis, 170 Tenn. 177, 93
S.W.2d 637, 639.
AGENCY COUPLED WITH INTEREST. Interest
in continued existence of power' or authority to
act with reference to business, where secured by
contract and based on consideration moving from
agent to principal looking to exercise of power as
means of reimbursement, creates "agency coupled
with an interest." Bowling v. National Convoy &
Trucking Co., 101 Fla. 634, 135 So. 541, 544.
Agent must have an interest or estate in the
thing to be disposed of or managed under the
power. Eduardo Fernandez Y Compania v. Longino & Collins, 199 La. 343, 6 So.2d 137, 142, 143.
The relation created by express or implied contract or
by law, whereby one party delegates the transaction of
some lawful business with more or less discretionary power
to another, who undertakes to manage the affair and render to him an account thereof. State ex rel. Cities Service
Gas Co. v. Public Service Commission, 337 Mo. 809, 85
S.W.2d 890, 894. Or where one person confides the management of some affair, to be transacted on his account,
to other party. 1 Liverm. Prin. & Ag. 2. Or one party
is authorized to do certain acts for, or in relation to the
rights or property of the other. But means more than
tacit permission, and involves request, instruction, or command. Klee v. U. S., C.C.A.Wash., 53 F.2d 58, 61. Being
the consensual relation existing between two persons, by
virtue of which one is subject to other's control. Tarver,
Steele & Co. v. Pendleton Gin Co., Tex.Civ.App., 25 S.W.2d
156, 159.
Actual agency. Exists where the agent is really employed by the principal. Weidenaar v. N. Y. Life Ins. Co.,
36 Mont. 592, 94 P. 1, 6.
Agency by estoppel. One created by operation of law
and established by proof of such acts of the principal as
reasonably lead to the conclusion of its existence. SigelCampion Live Stock Commission Co. v. Ardohain, 71 Colo.
410. 207 P. 82, 83. Arises where principal, by negligence
in failing to supervise agent's affairs, allows agent to exercise powers not granted to him, thus justifying others in
believing agent possesses requisite authority. Reifsnyder
v. Dougherty, 301 Pa. 328, 152 A. 98, 100. Though principal have no notice of agent's conduct, Dispatch Printing
Co. v. National Bank of Commerce, 109 Minn. 440, 124 N.W.
236, 50 L.R.A.,N.S., 74.
AGENCY RELATIONSHIP. An employment for
purpose of representation in establishing legal relations between principal and third persons. Blabon v. Hay, 269 Mass. 401, 169 N.E. 268, 271.
AGENDA. Memoranda of things to be done, as
items of business or discussion to be brought up
at a meeting; a program consisting of such items.
Webster. Baton Rouge Bldg. Trades Council v.
T. L. James & Co., 201 La. 749, 10 So.2d 606, 619.
AGENESIA. In medical jurisprudence, impotentia generandi; sexual impotence; incapacity for
reproduction, existing in either sex, and whether
arising from structural or other causes.
AGENFRIDA. Sax. The true master or owner
of a thing. Spelman.
AGENHINA. In Saxon law, a guest at an inn,
who, having stayed 'there for three nights, was
then accounted one of the family. Cowell.
Agency of necessity. A term sometimes applied to the
kind of implied agency which enables a wife to procure
what is reasonably necessary for her maintenance and support on her husband's credit and at his expense, when he
fails to make proper provision for her necessities. Bostwick v. Brower, 49 N.Y.S. 1046, 22 Misc. 709.
AGENS. Lat. An agent, a conductor, or manager of affairs. Distinguished from factor, a workman. A plaintiff. Fleta, lib. 4, c. 15, § 8.
AGENT. A person authorized by another to act
for him, one intrusted with another's business.
Downs v. Delco-Light Co., 175 La. 242, 143 So. 227.
One who represents and acts for another under
the contract or relation of agency, q. v. Fowler
v. Cobb, Mo.App., 232 S.W. 1084. A business representative, whose function is to bring about, modify, affect, accept performance of, or terminate
contractual obligations between principal and
third persons. Saums v. Parfet, 270 Mich. 165, 258
N.W. 235. One who undertakes to transact some
business, or to manage some affair, for another,
by the authority and on account of the latter, and
to render an account of it. 1 Livermore, Ag. 67.
See Co.Litt. 207; 1 B. & P. 316; Thomas B. Jeffrey
Co. v;Lockridge, 173 Ky. 282, 190 S.W. 1103, 1105.
One who acts for or in place of another by authority from him; a substitute, a deputy, appointed by
principal with power to do the things which principal may do. Stephenson v. Golden, 279 Mich.
710, 276 N.W. 849. One who deals not only with
things, as does a servant, but with persons, using
his own discretion as to means, and frequently
establishing contractual relations between his
Deed of agency. A revocable and voluntary trust for
payment of debts. Wharton.
Exclusive agency. Defined as an agreement by owner
that during life of contract he will not sell property to a
purchaser procured by another agent, which agreement
does not preclude owner himself from selling to a purchaser of his own procuring, while a contract giving a
broker "exclusive sale" is more than such exclusive agency,
and is an agreement by the owner that he will not sell the
property during the life of the contract to any purchaser
not procured by the broker in question. Harris v. McPherson, 97 Conn. 164, 115 A. 723, 724, 24 A.L.R. 1530; Harris
& White v. Stone, 137 Ark. 23, 207 S.W. 443, 444.
General agency. That which exists when there is a delegation to do all acts connected with a particular trade,
business or employment. Hinkson v. Kansas City Life Ins.
Co., 93 Or. 473, 183 P. 24, 29. It implies authority on the
part of the agent to act without restriction or qualification
in all matters relating to the business of his principal.
Schwartz v. Maryland Casualty Co., 82 N.H. 177, 131 A.
352, 353.
Implied agency. One created by act of parties and
deduced from proof of other facts. Sigel-Campion Live
Stock Commission Co. v. Ardohain, 71 Colo. 410, 207 P. 82,
83. It is an actual agency, proved by deductions or inferences from other facts, and third party need have no
knowledge of the principal's acts, nor have relied on them.
Kentucky-Pennsylvania Oil & Gas Corporation v. Clark, 247
Ky. 438, 57 S.W.2d 65.
85
AGENT
principal and third persons. Rendleman v. Niagara Sprayer Co., D.C.I11., 16 F.2d 122, 124. See,
also, State v. Bond, 94 W.Va. 255, 118 S.E. 276, 279.
Practice of the House of Lords and Privy Council. In
appeals, solicitors and other persons admitted to practice
in those courts in a similar capacity to that of solicitors
in ordinary courts, are technically called "agents." Macph.
Priv. Coun. 65.
Private agent. An agent acting for an individual in his
private affairs; as distinguished from a public agent, who
represents the government in some administrative capacity.
Agent and patient. A phrase indicating the state of a
person who is required to do a thing, and is at the same
ti me the person to whom it is done ; as, when a man is
indebted to another, and he appoints him his executor,
required to pay the debt in his capacity of executor, and
entitled to receive it in his own right. Termes de la Ley.
Apparent agent or ostensible agent. One whom the principal, either intentionally or by want of ordinary care,
induces third persons to believe to be his agent, though he
has not, either expressly or by implication, conferred
authority on him. Ware v. Home Mut. Ins. Ass'n of Iowa,
135 Neb. 329, 281 N.W. 617, 620. A person who, whether
or not authorized, reasonably appears to third person,
because of manifestations of another, to be authorized to
act as agent for such other. Hansche v. A. J. Conroy,
Inc., 222 Wis. 553, 269 N.W. 309, 312.
Public agent. An agent of the public, the state, or the
government; a person appointed to act for the public in
some matter pertaining to the administration of government or the public business. See Story, Ag. § 302; Whiteside v. United States, 93 U.S. 254, 23 L.Ed. 882.
Real-estate agent. Any person whose business it is to
sell, or offer for sale, real estate for others, or to rent
houses, stores, or other buildings, or real estate, or to collect rent for others. Act July 13, 1866, c. 184, § 9, par. 25;
14 St. at Large, 118. Carstens v. McReavy, 1 Wash.St. 359,
25 P. 471.
Diplomatic agent. A person employed by a sovereign to
manage his private affairs, or those of his subjects in his
name, at the court of a foreign government. Wolff, Inst.
Nat. § 1237.
General agency business. One not engaged as agent for
single firm or person, but holding himself out to public as
being engaged in business of being agent. Comer v. State
Tax Commission of New Mexico, 41 N.M. 403, 69 P.2d 936.
General agent. One employed in his capacity as a professional man or master of an art or trade, or one to whom
the principal confides his whole business or all transactions
or functions of a designated class ; or he is a person who
is authorized by his principal to execute all deeds, sign all
contracts, or purchase all goods, required in a particular
trade, business, or employment. See Story, Ag. § 17;
Thompson .v. Michigan Mut. Life Ins. Co., 56 Ind.App. 502,
105 N.E. 780, 782; Little v. Minneapolis Threshing Mach.
Co., 166 Iowa 651, 147 N.W. 872, 873. One empowered to
transact all business of principal at any particular time or
any particular place, a general manager. Abuc Trading &
Sales Corporation v. Jennings, 151 Md. 392, 135 A. 166, 173.
An agent to manage buildings and lease and collect the
rents, Daniel v. Pappas, C.C.A.Okl., 16 F.2d 880, 883. An
agent empowered to enter into contracts without consulting insurer, notwithstanding restriction of his territory,
London & Lancashire Ins. Co. v. McWilliams, 215 Ala. 481,
110 So. 909, 910.
Local agent. One appointed to act as the representative
of a corporation and transact its business generally (or
business of a particular character) at a given place or
within a defined district. See Frick Co. v. Wright, 23 Tex.
Civ.App. 340, 55 S.W. 608; Moore v. Freeman's Nat. Bank,
92 N.C. 594.
Managing agent. A person who is invested with general
power, involving the exercise of judgment and discretion,
as distinguished from an ordinary agent or employee, who
acts in an inferior capacity, and under the direction and
control of superior authority, both in regard to the extent
of the work and the manner of executing the same. Reddington v. Mariposa Land & Min. Co., 19 Hun, N.Y., 405;
Taylor v. Granite State Prov. Ass'n, 32 N.C. 992, 136 N.Y.
343, 32 Am.St.Rep. 749. One who has exclusive supervision
and control of some department of a corporation's business, the management of which requires of such person
the exercise of independent judgment and discretion, and
the exercise of such authority that it may be fairly gaid
that service of summons upon him will result in notice to
the corporation. Federal Betterment Co. v. Reeves, 73
Kan. 107, 84 P. 560, 4 L.R.A.,N.S., 460; Hatinen v.
Payne, 150 Minn. 344, 185 N.W. 386, 387. As used in section 4274, Wilson's Statutes of Oklahoma 1903, Ann., an
agent whose agency extends to all the transactions of the
corporation within the state; one who has or is engaged
in the management of the business of the corporation, in
distinction from the management of a local or particular
branch or department of said business. Waters Pierce Oil
Co. v. Foster, 52 Okl. 412, 153 P. 169, 171.
A special agent is one employed to conduct a particular
transaction or piece of business for his principal or authorized to perform a specified act. Hinkson v. Kansas City
Life Ins. Co., 93 Or. 473, 183 P. 24, 29; Pettijohn v. St.
Paul Fire & Marine Ins. Co., 100 Kan. 482. 164 P. 1096.
1097; Hoffman v. Marano, 71 Pa.Super.Ct. 26, 28.
AGENTES ET CONSENTIENTES PART PCENA
PLECTENTUR. Acting and consenting parties
are liable to the same punishment. 5 Coke, 80.
AGER. Lat. A field; land generally. A portion
of land inclosed by definite boundaries. Municipality No. 2 v. Orleans Cotton Press, 18 La. 167,
36 Am.Dec. 624. In old English law, an acre (q.
v.). Spelman.
AGGER. Lat. In the civil law, a dam, bank or
mound. Cod. 9, 38; Townsh.Pl. 48.
AGGRAVATED ASSAULT. The term has no technical and definite common law meaning. In re
Burns, C.C.Ark., 113 F. 987; People v. Ochotski,
115 Mich. 601, 73 N.W. 889. The term is one which
is employed to describe an assault which has, in
addition to the mere intent to commit it, another
object which is also criminal, Brimhall v. State,
31 Ariz. 522, 255 P. 165, 53 A.L.R. 231; or to include all those species of assault which, for various reasons, have come to be regarded as more
heinous than common assault, State v. Jones, 133
S.C. 167, 130 S.E. 747; or which have been made
the subject of special legislative provisions, Daffan v. State, Tex.Cr.App., 21 S.W.2d 301 and Njecick v. State, 178 Wis. 94, 189 N.W. 147.
An assault where the means or instrument used to
accomplish the injury is highly dangerous or where assailant has some ulterior and malicious motive in committing
assault other than a mere desire to punish injured person.
Strickbine v. State, 201 Ark. 1031, 148 S.W.2d 180, 181, 182 ;
when committed with a deadly weapon under circumstances not amounting to an intent to murder, Myers v.
State, 72 Tex.Cr.R. 630, 163 S. W. 432 ; or when the instrument or means used is such as inflicts disgrace upon the
person assaulted, Cirul v. State, 83 Tex.Cr.R. 8, 200 S.W.
1088; Scott v. State, 73 Tex.Cr.R. 622, 166 S. W. 729, 730
(indecent and improper fondling of the person). In Arizona, aggravated assault is different from simple assault
only by infliction of serious bodily injury, Brimhall v.
State, 31 Ariz. 522, 255 P. 165, 166, 53 A.L.R. 231.
Mercantile agents. Agents employed for the sale of
goods or merchandise are called "mercantile agents," and
are of two principal classes,—brokers and factors (q. v.);
a factor is sometimes called a "commission agent," or
"commission merchant." Russ. Mere. Ag. 1.
AGGRAVATING. Passenger ejected from plane.
Delta Air Corporation v. Porter, 70 Ga.App. 152,
27 S.E.2d 758, 762.
86
AGIST
offense. He who begins a quarrel or dispute, ei
ther by threatening or striking another. See Wilkie v. State, 33 Okl.Cr. 225, 242 P. 1057, 1059.
AGGRAVATION. Any circumstance attending
the commission of a crime or tort which increases
its guilt or enormity or adds to its injurious
consequences, but which is above and beyond the
essential constituents of the crime or tort itself.
AGGRIEVED. Having suffered loss or injury;
damnified; injured.
Matter of aggravation, correctly understood, does not
consist in acts of the same kind and description as those
constituting the gist of the action, but in something done
by the defendant, on the occasion of committing the trespass, which is, to some extent, of a different legal character from the principal act complained of. Hathaway v.
Rice, 19 Vt. 107. So on an indictment for murder the prisoner may be convicted of manslaughter, for the averment
of malice aforethought is merely matter of aggravation.
Co.Litt. 282 a.
AGGRIEVED PARTY. One whose legal right is
invaded by an act complained of, or whose pecuniary interest is directly affected by a decree
or judgment. Glos v. People, 259 Ill. 332, 102 N.E.
763, 766, Ann.Cas.1914C, 119. See next topic.
One whose right of property may be established
or divested. McFarland v. Pierce, 151 Ind. 546, 45
N.E. 706. The word "aggrieved" refers to a substantial grievance, a denial of some personal or
property right, or the imposition upon a party of
a burden or obligation. Roullard v. McSoley, 54
R.I. 232, 172 A. 326, 327. Injured in a legal sense.
In re Donnelly's Estate, 55 S.D. 426, 226 N.W. 563,
565.
In pleading, the introduction of matter into the
declaration which tends to increase the amount of
damages, but does not affect the right of action
itself. Steph.P1. 257; 12 Mod. 597.
AGGRAVATION OF THE DISABILITY. Refers
to the course or progress of the workman's condition resulting from the specific injury for which
an award or arrangement of compensation has
been made. Keefer v. State Industrial Accident
Commission, 171 Or. 405, 135 P.2d 806, 809.
Adoption, Appeal of Cummings, 126 Me. 111, 136 A. 662,
663; disbarment, State v. Hunter, 152 Tenn. 233, 276 S. W.
639, 640; bar association, State v. Huddleston, 173 Ark.
686, 293 S.W. 353, 358; contra, disciplinary proceedings; In
re Dolphin, 240 N.Y. 89, 147 N.E. 538, 539; lunacy inquisition, Commonwealth v. Davidson, 269 Pa. 218, 112 A. 115.
One 'against whom error has been committed, Kinealy v.
Macklin, 67 Mo. 95. Or one against whom an appealable
order or judgment has been entered. Ely v. Frisbie, 17
Cal. 260. Any party having an interest recognized by law
in the subject-matter, which interest is injuriously affected
by judgment. Hornbeck v. Richards, 80 Mont. 27, 257 P.
1025, 1026. A complainant who has received less than the
relief demanded, or a defendant who has not been
accorded the full amount of his set-off or counterclaim.
Blanchard v. Neill, 83 N.J.Eq. 446, 91 A. 811. See, also,
Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080,
1081. One under necessity of answering or replying to
irrelevant and redundant matter in a pleading. Shea v.
Kiely, Sup., 167 N.Y.S. 570, 572.
AGGREGATE. Entire number, sum, mass, or
quantity of something; amount; complete whole,
and one provision under will may be the aggregate if there are no more units to fall into that
class. In re Curley's Will, 151 Misc. 664, 272 N.
Y.S. 489. Composed of several; consisting of
many persons united together; a combined whole.
1 Bl.Comm. 469.
AGGREGATE CORPORATION. See Corporation.
AGGREGATES. Name for materials consisting
largely of rock, gravel and sand used for construction and surfacing of highways or, as a component part, in forming concrete for such construction. Pioneer Gravel Equipment Mfg. Co. v. Diamond Iron Works, C.C.A.Minn., 72 F.2d 161.
AGILD. In Saxon law, free from penalty, not
subject to the payment of gild, or weregild; that
is, the customary fine or pecuniary compensation
for an offense. Spelman; Cowell.
AGGREGATIO MENTIUM. The meeting of
minds. The moment when a contract is complete. A supposed derivation of the word "agreement," q. v.
AGILER. In Saxon law, an observer or informer.
AGILLARIUS. L. Lat. In old English law, a
hayward, herdward, or keeper of the herd of cattle in a common field. Cowell.
AGGREGATION. In law of patents, it means
that the elements of a claimed combination are
incapable of co-operation to produce a unitary result, and in its true sense does not need prior art
patents to support it. National Popsicle Corporation v. Harvey, D.C.Pa., 6 F.Supp. 784, 786.
It does not imply mechanical interaction of parts, but
AGIO. In commercial law, a term used to express the difference in point of value between
metallic and paper money, or between one sort of
metallic money and another. McCul.Dict.
An Italian word for accommodation.
only union of all elements of invention to realize single
purpose. Simplex Piston Ring Co. of America v. HortonGallo-Creamer Co., C.C.A.Conn., 61 F.2d 748, 750. A combination which merely brings together two or more functions to be availed of independently of each other does not
represent "invention" but constitutes mere "aggregation.",
Hemming v. S. S. Kresge Co., D.C.Conn., 24 F.Supp. 981,
983. The assembly of old elements, in a device in which
each performs the same function in the same way as it did
when used alone, without mutuality of action, interaction,
or co-operation, is mere "aggregation" not involving invention. In re Smith, 57 App.D.C. 204, 19 F.2d 678, 679.
AGGRESSOR. One who first employs hostile
force. Penn v. Henderson, 174 Or. 1, 146 P.2d
"160, 766. The party who first offers violence or
87
AGIOTAGE. A speculation on the rise and fall
of the public debt of states, or the public funds.
The speculator is called "agioteur."
AGIST. In ancient law it meant to take in and
give feed to the cattle of strangers in the king's
forest, and to collect the money due for the same
to the king's use. Spelman; Cowell.
In modern law it means to take in cattle to feed,
or pasture, at a certain rate of compensation.
Bank of Tehama County v. Federal Realty Co., 2
Cal.2d 333, 40 P.2d 507, 509. See Agistment.
AGISTATIO
AGISTATIO ANIMALIUM IN FORESTA. The
drift or numbering of cattle in the forest.
AGISTER. See Agistor.
AGISTERS, or GIST TAKERS. Officers appointed to look after cattle, etc. See Williams, Common, 232.
AGISTMENT. The taking and feeding of other
men's cattle in the king's forest, or on one's own
land, at a certain rate. Bank of Tehama County
v. Federal Realty Co., 2 Cal.2d 333, 40 P.2d 507,
509. Also the profit or recompense for such pasturing of cattle. Williams v. Miller, 68 Cal. 290,
9 Pac. 166. A species of bailment. PatchenWilkes Stock Farm Co. v. Walton, 166 Ky. 705, 179
S.W. 823.
In canon law it is a composition or mean rate
at which some right or due might be reckoned.
There is also agistment of sea-banks, where
lands are charged with a tribute to keep out the
sea; and terra agistatce are lands whose owners
must keep up the sea-banks. Holthouse.
Tithe of Agistment was a small tithe paid to
the rector or vicar on cattle or other produce of
grass lands. It was paid by the occupier of the
land and not by the person who put in his cattle
to graze. Rawle, Exmoor 31.
AGISTOR. One who takes in horses or other animals to pasture at certain rates. Story, Bailm. §
443; Cox v. Chase, 99 Kan. 740, 163 P. 184, 186.
An officer who had the charge of cattle pastured
for a certain stipulated sum in the king's forest
and who collected the money paid for them.
The agnate family consisted of all persons living at the
same time, who would have been subject to the patris
potestas of a common ancestor, if his life had been continued to their time. Hadl.Rom.Law, 131.
Cognates were all persons who could trace their blood to
a single ancestor or ancestress, and agnates were those
cognates who traced their connection exclusively through
males. Maine, Anc. Law. Between agnati and cognati
there is this difference : that, under the name of agnati,
cognati are included, but not 6 converso; for instance, a
father's brother, that is, a paternal uncle, is both agnatus
and cognatus, but a mother's brother, that is, a maternal
uncle, is a cognatus but not agnatus. ( Dig. 38, 7, 5, pr.)
Burrill.
AGNATIC. [From agnati, q. v.] Derived from
or through males. 2 Bl.Comm. 236.
AGNATIO. In the civil law, relationship on the
fathers' side; the relationship of agnati; agnation. Agnatio a patre est. Inst. 3, 5, 4; Id. 3, 6, 6.
AGNATION. Kinship by the father's side. See
Agnates; Agnati.
AGNOMEN, Lat. An additional name or title;
a nickname. A name or title which a man gets by
some action or peculiarity; the last of the four
names sometimes given a Roman. Thus, Scipio
Africanus, (the African,) from his African victories. Ainsworth; Calvinus, Lex. See Nomen.
AGNOMINATION. A surname; an additional
name or title; agnomen.
AGNUS DEL Lat. Lamb of God. A piece of
white wax, in a flat, oval form, like a small cake,
stamped with the figure of a lamb, and consecrated by the pope. Cowell.
AGONY. Violent physical pain or mental distress. City of Chicago v. McLean, 133 Ill. 148,
24 N.E. 527, 8 L.R.A. 765.
AGITATOR. One who stirs up; excites; ruffles;
perturbs. One who incessant advocates a social
change.
AGRAPHIA. See Aphasia.
Labor agitator. One actively engaged in promoting the
interests of the laboring men. The term does not imply
the use of unlawful or improper means. Wabash R. Co.
v. Young, 69 N.E. 1003, 1005, 1006, 162 Ind. 102, 4 L.R.A.,
N.S., 1091.
Seditious agitator. A disturber of the public peace, a
subverter of just laws, and a bad citizen. Wilkes v.
Shields, 64 N.W. 921, 62 Minn. 426, 427.
AGRARIAN. Relating to land, or to a division or
distribution of land; as an agrarian law.
AGRARIAN LAWS. In Roman law, laws for the
distribution among the people, by public authority, of the lands constituting the public domain,
usually territory conquered from an enemy.
In common parlance the term is frequently applied to laws which have for their object the more
equal division or distribution of landed property;
laws for subdividing large properties and increasing the number of landholders.
AGNATES. In the law of descents, relations by
the father, or on the father's side. This word
is used in the Scotch law, and by some writers as
an English word, cqrresponding with the Latin
agnati, (q. v.) Ersk.Inst. b. 1, tit. 7, § 4.
AGNATI. In Roman law, the term included all
the cognates who trace their connection exclusively through males.
AGRARIUM. A tax upon or tribute payable out
of land.
A table of cognates is formed by taking each lineal
ancestor in turn and including all his descendants of both
sexes in the tabular view. If, then, in tracing the various
branches of such a genealogical table or tree, we stop
whenever we come to the name of a female, and pursue
that particular branch or ramification no further, all who
remain after the descendants of women have been excluded
are agnates, and their connection together is agnatic relationship. Maine, Anc. Law, 142.
All persons are agnatically connected together who
are under the same patria potestas, or who have been
under it, or who might have been under it if their lineal
ancestor had lived long enough to exercise his empire.
Maine, Anc. Law, 144.
AGREAMENTUM. In old English law, agreement; an agreement. Spelman.
AGREE. To concur; come into harmony; give
mutual assent; unite in mental action; exchange
promises; make an agreement; arrange; to settle.
Mickleson v. Gypsy Oil Co., 110 Okl. 117, 238 P.
194, 198. Consent. Smith v. Jones, 185 Ga. 236,
194 S.E. 556, 560. Harmonize or reconcile. "You
will agree your books." 8 Coke, 67. Concur or
acquiesce in; approve or adopt. Agreed, agreed
88
AGREEMENT
to, are frequently used in the books, (like accord,)
to show the concurrence or harmony of cases.
Agreed per curiam is a common expression.
Usually implies some contractual undertaking.
In re Gray's Estate, 160 Misc. 710, 290 N.Y.S. 603,
605. To grant or covenant, as when a grantor
agrees that no building shall be erected on an adjoining lot; Hogan v. Barry, 143 Mass. 538, 10 N.
E. 253; or a mortgagor agrees to cause all taxes
to be paid; Mackay v. Truchon, 171 Mo.App. 42,
153 S.W. 502, 503.
The act of two or more persons, who unite in
expressing a mutual and common purpose, with
the view of altering their rights and obligations.
The union of two or more minds in a thing done
or to be done; a mutual assent to do a thing.
Corn. Dig. "Agreement," A 1. See Aggregatio
Mentium. Carter v. Prairie Oil & Gas Co., 58 Okl.
365, 160 P. 319, 322. A compact between parties
who are thereby subjected to the obligation or to
whom the contemplated right is thereby secured.
People v. Mills, 160 Misc. 730, 290 N.Y.S. 48, 52.
AGREt. In French law, a person authorized to
represent a litigant before the Tribunals of Commerce. If such person be a lawyer, he is called
an avocat-agree. Coxe, Manual of French Law.
Although often used as synonymous with "contract,"
Douglass v. W. L. Williams Art Co., 143 Ga. 846, 85 S.E.
993, it is a wider term than "contract" (Anson, Cont. 4.)
An agreement might not be a contract, because not fulfilling some requirement. And each of a series of mutual
stipulations or constituent clauses in a contract might be
denominated an "agreement." The meaning of the contracting parties is their agreement. Whitney v. Wyman,
101 U.S. 396, 25 L.Ed. 1050. "Agreement" is seldom
applied to specialties. Pars.Cont. 6.
"Agreement" is not synonymous with "promise" or
"undertaking." It signifies a mutual contract, on consideration. Andrews v. Pontue, 24 Wend.N.Y. 285; Wain v.
Warlters, 5 East, 10; wherein parties must have a distinct
intention common to both, and without doubt or difference.
Blake v. Mosher, 11 Cal.App.2d 532, 54 P.2d 492, 494.
AGREEANCE. In Scotch law, agreement; an
agreement or contract.
AGREED. Settled or established by agreement.
This word in a deed creates a covenant.
It is a technical term, synonymous with "contracted,"
McKisick v. McKisick, Meigs Tenn. 433. It means, ex vi
termini, that it is the agreement of both parties. Aikin v.
Albany, V. & C. R. Co., 26 Barb.N.Y. 298.
The writing or instrument which is evidence of
an agreement.
AGREED CASE. Stipulations signed by litigants'
attorneys, constituted an "agreed case". In re
Davis Bros. Stone Co., 245 Wis. 130, 13 N.W.2d
512, 515.
Classification
Conditional agreements, the operation and effect of
which depend upon the existence of a supposed state of
facts, or the performance of a condition, or the happening
of a contingency.
Executed agreements, which have reference to past
events, or which are at once closed and where nothing further remains to be done by the parties.
Executory agreements are such as are to be performed
in the future. They are commonly preliminary to other
more formal or important contracts or deeds, and are usually evidenced by memoranda, parol promises, etc.
Express agreements are those in which the terms and
stipulations are specifically declared and avowed by the
parties at the time of making the agreement.
Implied agreement. (1) Implied in fact. One inferred
from the acts or conduct of the parties, instead of being
expressed by them in written or spoken words. Baltimore
Mail S. S. Co. v. U. S., C.C.A.Md., 76 F.2d 582, 585. (2)
Implied in law; more aptly termed a constructive or quasi
contract. One where, by fiction of law, a promise is
i mputed to perform a legal duty, as to repay money
obtained by fraud or duress. Baltimore Mail S. S. Co. v.
U. S., C.C.A.Md., 76 F.2d 582, 585. One inferred by the
law where the conduct of the parties with reference to the
subject-matter is such as to induce the belief that they
intended to do that which their acts indicate they have
done. Baltimore & 0. R. Co. v. U. S., 261 U.S. 592, 43 S.Ct.
425, 67 L.Ed. 816; Cuneo v. De Cuneo, 24 Tex.Civ.App. 436,
59 S.W. 284.
Parol agreements. Such as are either by word of mouth
or are committed to writing, but are not under seal. The
common law draws only one great line, between things
under seal and not under seal. Wharton.
Evidence presented by stipulation that stated facts constituted entire evidence is not an "agreed case". StrubleWerneke Motor Co. v. Metropolitan Securities Corporation,
93 Ind.App. 416, 178 N.E. 460, 462. Nor is an agreed statement of facts on which a case is submitted in lieu of evidence. Byers v. Essex Inv. Co., 281 Mo. 375, 219 S. W. 570,
571; Reddick v. Board of Com'rs .of Pulaski County, 14
Ind.App. 598, 41 N.E. 834.
AGREED ORDER. The only difference between
an agreed order and one which is made in the due
course of the proceedings in an action is that in
the one case it is agreed to, and in the other it
is made as authorized by law. Claflin v. Gibson,
21 Ky.Law Rep. 337, 51 S.W. 439.
AGREED STATEMENT OF FACTS. A statement
of facts, agreed on by the parties as true and
correct, to be submitted to a court for a ruling on
the law of the case. United States Trust Co. v.
New Mexico, 183 U.S. 535, 22 Sup.Ct. 172, 46 L.Ed.
315. See Case Stated.
Where testimony was contradictory, stipulation relating
to testimony did not constitute an "agreed state of facts".
McPherson v. State Industrial Accident Commission, 169
Or. 190, 127 P.2d 344, 346.
AGREEMENT. A coming or knitting together of
minds; a corning together in opinion or determination; the coming together in accord of two
minds on a given proposition; in law a concord
of understanding and intention between two or
more parties with respect to the effect upon their
relative rights and duties, of certain past or future facts or performances; the consent of two or
more persons concurring respecting the transmission of some property, right, or benefits, with the
view of contracting an obligation, a mutual obligation. Bac.Abr.; 'Rocha v. Hulen, 6 Cal.App.2d
245, 44 P.2d 478, 482.
In agreement means in conformity, or harmony'
with. Brown Real Estate Co. v. Lancaster County, 110 Neb. 665, 194 N.W. 897, 898.
AGREEMENT FOR INSURANCE. An agreement often made in short terms preliminary to
the filling out and delivery of a policy with specific stipulations.
AGREEMENT NOT TO BE PERFORMED WITHIN A YEAR. An agreement that necessarily must
require more than year for performance. Marble
89
AGREEMENT
v. Town of Clinton, Mass., 9 N.E.2d 522, 524, 111
A.L.R. 1101. Incapable of performance within
one year. Street v. Maddux, Marshall, Moss &
Mallory, 58 App.D.C. 42, 24 F.2d 617, 619.
AGREEMENT OF SALE; AGREEMENT TO
SELL. An agreement of sale may imply not
merely an obligation to sell, but an obligation on
the part of the other party to purchase (cf. Loud
v. St. Louis Union Trust Co., 313 Mo. 552, 281
S.W. 744, 755) while an agreement to sell is simply an obligation on the part of the vendor or
promisor to complete his promise of sale; Treat
v. White, 181 U.S. 264, 21 Sup.Ct. 611, 45 L.Ed.
853. It is a contract to be performed in future,
and, if fulfilled, results in a sale; it is preliminary to sale and is not the sale. Callender v.
Crossfield Oil Syndicate, 84 Mont. 263, 275 P. 273,
276.
AGREEMENT TO SELL LAND. A contract to be
performed in future which if fulfilled results in
sale. In re Frayser's Estate, 401 Ill. 364, 82 N.E.
2d 633, 638.
incidental thereto. Smythe v. Phoenix, 63 Idaho
585, 123 P.2d 1010, 1012.
AGRICULTURAL HOLDING. Land cultivated
for profit in some way. Within the meaning of
the English Agricultural Holdings act of 1883,
the term will not include natural grass lands.
Such lands are pastoral holdings. 32 S.J. 630.
AGRICULTURAL LABOR. Services performed
on farm, for owner or tenant. California Employment Commission v. Butte County Rice Growers Ass'n, Cal., 154 P.2d 892, 894. Broader in
meaning than farming or farm labor and includes
one engaged in horticulture. St. Louis Rose Co.
v. Unemployment Compensation Commission, 348
Mo. 1153, 159 S.W.2d 249, 250, and maintenance
work and similar service in employer's farm packing house. Latimer v. United States, D.C.Cal.,
52 F.Supp. 228, 234, 235, 236, 237. The science and
art of production of plants and animals useful
to man. Murphy v. Mid-West Mushroom Co., 350
Mo. 658, 168 S.W.2d 75, 77, 78.
AGRICULTURAL LANDS. A term used merely
to distinguish rural from urban or other properties. Eisenzimmer v. Bell, 75 N.D. 733, 32 N.W.
2d 891, 893.
AGREER. Fr. In French marine law, to rig or
equip a vessel. Ord. Mar. liv. 1, tit. 2, art. 1.
AGREZ. Fr. In French marine law, the rigging or tackle of a vessel. Ord. Mar. liv. 1, tit. 2,
art. 1; Id. tit. 11, art. 2; Id. liv. 3, tit. 1, art. 11.
AGRI. Arable lands in common fields.
Land may be assessable as "agricultural land" though it
be covered by native timber and underbrush, grass, and
weeds. Milne v. McKinnon, 32 S.D. 627, 144 N.W. 117, 118.
The term is synonymous with land "agricultural in character." State v. Stewart, 58 Mont. 1, 190 P. 129, 131.
AGRI LIMITATI.
In Roman law, lands belonging to the state by
right of conquest, and granted or sold in plots.
Sandars, Just.Inst., 5th Ed., 98.
ln modern civil law, lands whose boundaries
are strictly limited by the lines of government
surveys. Hardin v. Jordan, 140 U.S. 371, 11 Sup.
Ct. 808, 35 L.Ed. 428.
AGRICULTURAL. Pertaining to, or dealing with,
agriculture; also, characterized by or engaged in
farming as the leading pursuit. Oak Woods Cemetery Ass'n v. Murphy, 383 Ill. 301, 50 N.E.2d 582,
587.
AGRICULTURAL CHEMISTRY. A study of
products of the soil, especially foods, their nutritive value, their intensive production, study of
composition of soil, chemical methods of fertilization, prevention or amelioration of plant diseases,
extinction of insects and other detriments to agriculture, and in general study of animal and plant
life with relation to the science of chemistry. In
re Frasch's Estate, 125 Misc.Rep. 381, 211 N.Y.S.
635, 638.
AGRICULTURAL COMMODITIES. Generally
synonymous with agricultural or farm products,
and not including agricultural implements, Bowles
v. Rock, D.C.Neb., 55 F.Supp. 865, 868; or commercial fertilizer and ground and crushed limestone, Stiver v. Holley, 215 Ind. 9, 17 N.E.2d 831,
832.
AGRICULTURAL LIEN. A statutory lien in
some states to secure money or supplies advanced
to an agriculturist to be expended or employed
in the making of a crop and attaching to that
crop only. Jones-Phillips Co. v. McCormick, 174
N.C. 82, 93 S.E. 449, 452.
AGRICULTURAL PRODUCT. Things which
have a situs of their production upon the farm
and which are brought into condition for uses
of society by labor of those engaged in agricultural pursuits as contradistinguished from manufacturing or other industrial pursuits. In re
Rodgers, Neb., 134 Neb. 832, 279 N.W. 800, 803.
That which is the direct result of husbandry and the
cultivation of the soil. The product in its natural unmanufactured condition. Getty v. Milling Co., 40 Kan. 281, 19
P. 617. It has been held not to include beef cattle; Davis
& Co. v. City of Macon, 64 Ga. 128, 37 Am.Rep. 60; but to
include forestry products; Northern Cedar Co. v. French,
131 Wash. 394, 230 P. 837, 846.
AGRICULTURAL PURSUITS. Every process and
step taken and necessary to the completion of a
finished farm product. Big Wood Canal Co. v.
Unemployment Compensation Division of Industrial Accident Board, 61 Idaho 247, 100 P.2d 49, 51.
AGRICULTURAL SOCIETY. One for promoting
agricultural interests, such as improvement of
land, implements, and brands of cattle. Crete
Mills v. Nebraska State Board of Agriculture, 132
Neb. 244, 271 N.W. 684, 688; or for giving agricultural fairs; Town of West Hartford v. Connecticut
Fair Ass'n, 88 Conn. 627, 92 A. 432.
AGRICULTURAL EMPLOYMENT. Farm labor
synonymous, and includes all farm work and work
90
AIDER
AGRICULTURAL WORKER. Tasks incidental to
agricultural activities all are within the scope of
the employment of an "agricultural worker."
Melendez v. Johns, Ariz., 76 P.2d 1163, 1167.
AGRICULTURE. The art or science of cultivating
the ground, including the harvesting of crops,
and in a broad sense, the science or art of production of plants and animals useful to man, including in a variable degree, the preparation of these
products for man's use. In the broad sense, it includes farming, horticulture, forestry, together
with such subjects as butter, cheese, making
sugar, etc. Sancho v. Bowie, C.C.A.Puerto Rico,
93 F.2d 323, 324.
The cultivation of soil for food products or any other
useful or valuable growths of the field or garden tillage,
husbandry; also, by extension, farming, including any
industry practiced by a cultivator of the soil in connection
with such cultivation, as breeding and rearing of stock,
dairying, etc. The science that treats of the cultivation
of the soil. Stand. Diet. ; State v. Stewart, 58 Mont. 1, 190
P. 129, 131
"Agriculture" refers to the field or farm with all its
wants, appointments, and products, as distinguished from
"horticulture," which refers to the garden, with its less
important though varied products. Dillard v. Webb, 55
Ala. 468.
AGUSADURA. In ancient customs, a fee, due
from the vassals to their lord for sharpening
their plowing tackle.
AHTEID. In old European law, a kind of oath
among the Bavarians. Spelman. In Saxon law.
One bound by oath, q. d. "oathtied." From ath,
oath, and tied. Id.
negative acquiescence not in any way made known to the
principal malefactor. People v. Barnes, 311 Ill. 559, 143
N.E. 445, 447. See Accessory; Abettor; Alder and Abettor.
AID AND ASSIST. The words "aided and assisted," as used in the statute prohibiting the sale
of intoxicating liquors, as regards the condemnation or confiscation of vehicles, implies either
knowledge on the part of the owner that the
vehicle was being used for unlawful transportation, or such negligence or want of care as to
charge him with such knowledge or notice. In re
Gattina, 203 Ala. 517, 84 So. 760.
AID AND COMFORT. Help; support; assistance;
counsel; encouragement.
As an element in the crime of treason (see Constitution
of the United States, art. 3, § 3), the giving of "aid and
comfort" to the enemy may consist in a mere attempt. It
is not essential to constitute the giving of aid and comfort that the enterprise commenced should be successful
and actually render assistance. Young v. United States, 97
U.S. 39, 62, 24 L.Ed. 992. An act which intentionally
strengthens or tends to strengthen enemies of the United
States, or which weakens or tends to weaken power of the
United States to resist and attack such enemies. United
States v. Haupt, D.C.Ill., 47 F.Supp. 836, 839. Any intentional act furthering hostile designs of enemies of the
United States. United States v. Haupt, D.C.Ill., 47 F.Supp.
836, 839.
AID BOND, See Bond.
AID OF THE KING. The king's tenant prays
this, when rent is demanded of him by others.
AID PRAYER. In English practice, a proceeding
formerly made use of, by way of petition in court,
praying in aid of the tenant for life, etc., from the
reversioner or remainderman, when the title to
the inheritance was in question. It was a plea in
suspension of the action. 3 Bl.Comm. 300.
AID. To support, help, assist, or strengthen.
Hines v. State, 16 Ga.App. 411, 85 S.E. 452, 454.
Act in cooperation with. Cornett v. Commonwealth, 198 Ky. 236, 248 S.W. 540, 542.
Supplement the efforts of another. Anderson
v. Board of Medical Examiners, 117 Cal.App. 113,
3 P.2d 344, 346.
AID SOCIETIES. See Benefit Societies.
AIDER. One who is actually or constructively
present at the commission of the offense and is a
"principal". State v. Bachmeyer, 247 Wis. 294,
19 N.W.2d 261, 263.
A person "aids" when being present at the time and
place he does some act to render aid to the actual perpetration of the crime, though he takes no direct share in
its commission. State v. Johnson, 220 N.C. 773, 18 S.E.2d
358, 360.
This word must be distinguished from its synonym
"encourage," the difference being that the former connotes
active support and assistance. Although it may not import
necessary criminality in the act furthered. See Abet.
Mere proof of a defendant's presence at the time of the
commission of a criminal act is not sufficient to render
him an "alder". Gentry v. State, 65 Ga.App. 100, 15 S.E.
2d 464, 465.
AIDER AND ABETTOR. One who assists another in the accomplishment of a common design
or purpose; he must be aware of, and consent to,
such design or purpose. Peats v. State, 213 Ind.
560, 12 N.E.2d 270, 277.
AID AND ABET. Help, assist, or facilitate the
commission of a crime, promote the accomplishment thereof, help in advancing or bringing it
about, or encourage, counsel, or incite as to its
commission. State v. Lord, 42 N.M. 638, 84 P.2d
80, 86.
One who advises, counsels, procures, or encourages
another to commit a crime, himself being guilty of some
overt act or advocacy or encouragement of his principal,
actually or constructively present when crime is committed, and participating in commission thereof by some act,
deed, word, or gesture, Turner v. Commonwealth, 268 Ky.
311, 104 S.W.2d 1085, and sharing the criminal intent of
the principal. State v. Reedy, 97 W.Va. 549, 127 S.E. 24,
28. But one who incites or instigates the commission of a
felony when he is neither actually nor constructively present is an "alder, abettor, or procurer" within the meaning
of a statute. Neal v. State, 104 Neb. 56, 175 N.W. 669, 670.
Implies knowledge. Winning v. Board of Dental Examiners, 114 Cal.App. 658, 300 P. 866, 868.
At common law it consisted in being present at the time
and place, and doing some act to render aid to the actual
perpetrator of the crime, though without taking a direct
share in its commission. See 4 Bl.Comm. 34; State v.
Tally, 102 Ala. 25, 15 So. 722.
It comprehends all assistance rendered by words, acts,
encouragement, support, or presence, actual or constructive, to render assistance if necessary. Johnson v. State, 21
Ala.App. 565, 110 So. 55; State v. Davis, 191 Iowa, 720, 183
N.W. 314, 316. But it is not sufficient that there is a mere
AIDER BY VERDICT. The healing or remission,
by a verdict rendered, of a defect or error in
pleading which might have been objected to before
verdict.
91
ALDER
The presumption of the proof of all facts neccessary to the verdict as it stands, coming to the
aid of a record in which such facts are not distinctly alleged.
AIDING AN ESCAPE. Any overt act, intended
and useful to assist attempted or completed departure of prisoner from lawful custody before
his discharge by due process of law. State v.
Navarro, 131 Me. 345, 163 A. 103, 104.
AIDS. In feudal law, originally mere benevolences granted by a tenant to his lord, in times of
distress; but at length the lords claimed them as
of right.
They were principally three : (1) To ransom the lord's
person, if taken prisoner ; (2) to make the lord's eldest
son and heir apparent a knight; (3) to give a suitable
portion to the lord's eldest daughter on her marriage.
Abolished by 12 Car. II, c. 24.
Also, extraordinary grants to the crown by the
house of commons, which were the origin of the
modern system of taxation. 2 Bl.Comm. 63, 64.
A reasonable aid was a duty claimed by the lord of the
fee of his tenants, holding by knight service, to marry his
daughter, etc. Cowell.
AIEL (spelled also Ayel, Aile, Ayle, and Aieul).
L. Fr. A grandfather.
A writ which lieth where the grandfather was
seized in his demesne as of fee of any lands or
tenements in fee simple the day that he died, and
a stranger abateth or entereth the same day and
dispossesseth the heir. Fitzh.Nat.Brev. 222;
Termes de la Ley; 3 Bla.Com. 186; 2 Poll. &
Maitl. 57. See Abatement of Freehold.
AIELESSE. A Norman French term signifying
"grandmother." Kelham.
AIR. That fluid transparent substance which surrounds our globe. Bank v. Kennett, 101 Mo.App.
370, 74 S.W. 474.
AIR BASE. See Base.
AIR CONDITION. To render a room, building,
office, hotel or the like reasonably comfortable by
circulating air which is maintained at a predetermined temperature by either warming or cooling it. Magee Laundry & Cleaners v. Harwell
Appliance Co., 184 Miss. 435, 185 So. 571, 572.
AIR COURSES. As applied to the operation of
coal mines, passages for conducting air. Ricardo
v. Central Coal & Coke Co., 100 Kan. 95, 163 P.
641, M3. See Airway.
AIRCRAFT. Any contrivance used, or designed
for navigation of or flight in the air, except . a
parachute or other contrivance designed for such
navigation but used primarily as safety equipment. 49 U.S.C.A. §§ 171-184.
As defined in the Uniform Aeronautics Act, the
term includes balloon, airplane, hydroplane and
every other vehicle used for navigation through
the air. See Aeronautics; Airship; Hydro-Aeroplane.
AIRE. In old Scotch law, the court of the justices
itinerant, corresponding with the English eyre, (q.
v.) Skene de Verb. Sign. voc. Iter.
AIRPLANE. See Aeronautics; Hydro-Aeroplane;
Aircraft; Airship.
AIRPORT. Landing and taking off place for air
planes. City of Mobile v. Lartigue, 23 Ala.App.
479, 127 So. 257, 260.
With its beacons, landing fields, runways, and hangars,
it is analogous to a harbor with its lights, wharves, and
docks; the one is the landing place and haven of ships
that navigate the water, the other of those that navigate
the air. Coleman v. City of Oakland, 110 Cal.App. 715, 295
P. 59, 61. And includes all land, buildings, structures or
other improvements, necessary or convenient in the establishment and operation of an airport. Moore v. Gordon,
Tex.Civ.App., 122 S.W.2d 239, 242.
Any locality either of water or land which Is adapted
for the landing and taking off of aircraft and which provides facilities for shelter, supply, and repair of aircraft,
or a place used regularly for receiving or discharging passengers or cargo by air. 49 U.S.C.A. §§ 171-184. City of
Wichita v. Clapp, 125 Kan. 100, 263 P. 12, 63 A.L.R. 478.
AILE. A corruption of the French word aieul,
grandfather. See Aiel.
AILMENT. Commonly means indisposition of
body or mind, a slight illness. Mutual Life Ins.
Co. of New York v. Burton, 167 Tenn. 606, 72 S.
W.2d 778, 781.
But within meaning of an application for a benefit certificate, it is something which substantially impairs the
health of the applicant, materially weakens the vigor of
his constitution, or seriously deranges his vital functions,
thereby excluding chronic rheumatism. National Americans v. Ritch, 121 Ark. 185, 180 S.W. 488, 489. And in life
insurance application does not include mere temporary
indisposition, which, though requiring medical treatment,
is readily remediable. Zogg v. Bankers' Life Co. of Des
Moines, Iowa, C.C.A.W.Va., 62 F.2d 575, 578. Nor passing
discomfort. Washington Fidelity Nat. Ins. Co. v. Lacey,
45 Ohio App. 104, 186 N.E. 751, 754. However, it covers
disorders which could not properly be called diseases.
Cromeens v. Sovereign Camp W. 0. W., Mo.App., 247 S.W.
1033, 1034.
AIRSHIP. Under some statutes it includes every
kind of vehicle or structure intended for use as a
means of transporting passengers or goods, or
both, in the air. As defined by the International
Flying Convention of 1919, an airship means an
aircraft using gas lighter than air as a means of
support and having means of propulsion.
See Aeronautics; Aircraft; Hydro-Aeroplane.
AIM A WEAPON. To point it intentionally. Edwards v. State, 28 Ga.App. 466, 111 S.E. 748.
"Aim" denotes direction toward some minute point
in an object, while "point" implies direction toward
the whole object. Buchanan v. State, 25 Okl.Cr.
198, 219 P. 420, 423.
AIRT AND PAIRT. In old Scotch criminal law,
accessary; contriver and partner. 1 Pitc.Crim.
Tr. pt. 1, p. 133; 3 How.State Tr. 601. Now written art and part, (q. v.)
AINESSE. In French feudal law, the right or
privilege of the eldest born; primogeniture;
esnecy. Guyot, Inst.Feud. c. 17.
AIRWAY. Applies to air routes for either airplanes or seaplanes and is a material or permanent way through the air laid out with precision
92
ALCOHOLISM
alien's death, was entitiea to all his property, unless he had peculiar exemption. Repealed in
June, 1791.
and care that an engineer adopts in choosing the
course of and laying down a roadway. City of
Wichita v. Clapp, 125 Kan. 100, 263 P. 12, 14, 63
A.L.R. 478.
In English law, a passage for the admission of
air into a mine. 24 & 25 Viet. c. 97, § 28. See Air
Courses.
ALBUM BREVE. A blank writ; a writ with a
blank or omission in it.
ALBUS LIBER. The white book; an ancient
book containing a compilation of the law and
customs of the city of London.
AISIAMENTUM (spelled also Esamentum, Aismentum). In old English law, an easement. Spelman.
ALCABALA. In Spanish law, a duty of a certain
per cent. paid to the treasury on the sale or exchange of property.
AISNE or EIGNE. In old English law, the eldest
or first born.
AJOURNMENT. In French law, the document
pursuant to which an action or suit is commenced,
equivalent to the writ of summons in England.
Actions, however, are in some cases commenced
by requéte or petition. Arg.Fr.Merc.Law, 545.
ALCAIDE. Sp. Jailer, warden, governor of a
fortress.
ALCALDE. The name of a judicial officer in
Spain, and in those countries which have received
their laws and institutions from Spain. His functions somewhat resembled those of mayor in small
municipalities on the continent, or justice of the
peace in England and most of the United States.
Castillero v. U. S., 2 Black, 17, 194, 17 L.Ed. 360.
AJUAR. In Spanish law, paraphernalia. The
jewels and furniture which a wife brings in marriage.
AJUTAGE (spelled also Adjutage). A conical tube
used in drawing water through an aperture, by
the use of which the quantity of water drawn is
much increased.
ALCOHOLIC BEVERAGE. The term is distinguished from the term "intoxicating liquor," in
that a beverage may be alcoholic in that it contains
some alcohol, and yet not be intoxicating as defined in National Prohibition Act. Premier-Pabst
Sales Co. v. McNutt, D.C.Ind., 17 F.Supp. 708, 714.
AKIN. In old English law. Of kin. "Next-a-kin."
7 Mod. 140.
AL. L. Fr. At the; to the. Al barre; at the
bar. Al huis d'esglise; at the church door.
Beer. Liquor Control Commission v. McGillis, 91 Utah,
586, 65 P.2d 1136, 1141. Ethyl alcohol, within tax statute.
H. 0. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657,
660. It is immaterial whether the liquor is suitable or
desirable for beverage purposes, if it is prohibited by law
and is in fact used as a beverage. Powell v. State, 179 Md.
399, 18 A.2d 587, 590, 591. But it must be drinkable.
McChristy v. State, 138 Tex.Cr.R. 26, 133 S.W.2d 976, 977.
ALIE ECCLESL7E. The wings or side aisles of a
church. Blount.
ALANERARIUS. A manager and keeper of dogs
for the sport of hawking; from alanus, a dog
known to the ancients. A falconer. Blount.
ALCOHOLIC LIQUORS. "Alcoholic, spirituous and
malt liquors" mean intoxicating liquors which can
be used as a beverage, and which, when drunk to
excess, will produce intoxication. Howard v. Acme
Brewing Co., 143 Ga. 1, 83 S.E. 1096, 1097, Ann.
Cas.1917A, 91; F. W. Woolworth Co. v. State, 72
Okl.Cr. 125, 113 P.2d 399, 403.
ALARM LIST. The list of persons liable to military watches, who were at the same time exempt
from trainings and musters. See Prov.Laws 177576, c. 10, § 18; Const.Mass. c. 11, § 1, art. 10;
Pub.St.Mass.1882, p. 1287.
ALBA FIRMA. In old English law, white rent;
rent payable in silver or white money, as distinguished from that which was anciently paid in
corn or provisions, called black mail, or black
rent; reditus nigri. Spelman; Reg.Orig. 319b.
The term includes raw alcohol. C. J. Lincoln Co. v.
State, 122 Ark. 204, 183 S. W. 173, 174. Beer, ale, or wine
in Selective Service Act, § 12 (50 U.S.C.A. § 226 note).
U. S. v. Kinsel, D.C., 263 F. 141, 142. And lemon and
vanilla extracts, made or used for beverage purposes, containing alcohol. Brandon v. State, 24 Ala.App. 289, 134 So.
890, 891. But not specially denatured alcohol. M. H. McCarthy & Co. v. Doran, D.C.Mass., 43 F.2d 659, 661. See
Intoxicating Liquor.
ALBACEA. In Spanish law, an executor or administrator; one who is charged with fulfilling and
executing that which is directed by the testator in
his testament or other last disposition. Emeric
v. Alvarado, 64 Cal. 529, 2 Pac. 418, 433.
ALCOHOLISM. In medical jurisprudence, the
pathological effect (as distinguished from physiological effect) of excessive indulgence in intoxicating liquors.
ALBANAGIUM. In old French law, the state of
alienage; of being a foreigner or alien.
ALBANUS. In old French law, a stranger, alien,
or foreigner.
A morbid condition resulting from the inordinate or
excessive use of alcoholic beverages. Cochran v. Commissioner of Internal Revenue, C.C.A.4, 78 F.2d 176, 178.
It is acute when induced by excessive potations at one
time or in the course of a single debauch. An attack of
delirium tremens and alcoholic homicidal mania are examples of this form. It is chronic when resulting from the
long-continued use of spirits in less quantities, as in the
case of dipsomania.
ALBINATUS. In old French law, the state or
condition of an alien or foreigner.
ALBINATUS JUS. In old French law, the droit
d'aubaine in France, whereby the king, at an
93
ALCOVE
ALCOVE ROOM. An "alcove room," within Tenement House Law N. Y. § 65, is a room with an.
alcove. People on Complaint of Hickey v. Whitelow, Mag.Ct.N.Y., 166 N.Y.S. 141, 148.
ALEA. Lat. In the civil law, a game of chance
or hazard. Dig. 11, 5, 1. See Cod. 3, 43. The
chance of gain or loss in a contract.
ALEATOR. Lat. (From alea, q. v., meaning
dice). In the civil law, a gamester; one who
plays at games of hazard. Dig. 11, 5; Cod. 3,
43.
ALDERMAN. A judicial or administrative magistrate.
See Aldermannus.
Originally the word was synonymous with "elder" or
"senator," but was also used to designate an earl, and
even a king.
In American cities, one of a board of municipal officers
next in order to the mayor. State v. Waterman, 95 Conn.
414, 111 A. 623, 624; Board of Lights and Waterworks v.
Dobbs, 151 Ga. 53, 105 S.E. 611, 612. The aldermen are
generally a legislative body, having limited judicial powers as a body, as in matters of internal police regulation,
laying out and repairing streets, constructing sewers, and
the like; though in many cities they hold separate courts,
and have magisterial powers to a considerable extent.
In English law, an associate to the chief civil magistrate
of a corporate town or city.
The word would seem to have been rather an appellation
of honor, originally, than a distinguishing mark of office.
Spelmar Gloss.
ALDERMANNUS. L. Lat. An alderman.
ALDERMANNUS CIVITATIS VEL BURGI. Alderman of a city or borough, from which the modern
office of alderman has been derived. T. Raym.
435, 437.
ALEATORY CONTRACT. A mutual agreement,
of which the effects, with respect both to the
advantages and losses, whether to all the parties
or to some of them, depend on an uncertain event.
Losecco v. Gregory, 108 La. 648, 32 So. 985.
Contracts in which promise by one party is
conditioned on fortuitous event. Southern Surety
Co. v. MacMillan Co., C.C.A.Okl., 58 F.2d 541, 549.
A contract, the obligation and performance of which
depend upon an uncertain event, such as insurance, engagements to pay annuities, and the like.
A contract is aleatory or hazardous when the performance of that which is.,, one of its objects depends on an
uncertain event. rt is certain when the thing to be done
is supposed to depend on the will of the party, or when in
the usual course of events it must happen in the manner
stipulated.
ALER A DIEU. L. Fr. In old practice. To be
dismissed from court; to go quit. Literally, "to
go to God."
ALER SANS JOUR. In old practice, a phrase
used to indicate the final dismissal of a case from
court without continuance. "To go without day."
ALDERMANNUS COMITATUS. The alderman
of the county. According to Spelman, he held an
office intermediate between that of an earl and a
sheriff. According to other authorities, he was
the same as the earl. 1 Bl.Comm. 116.
ALEU. Fr. In French feudal law, an allodial
estate, as distinguished from a feudal estate or
benefice.
ALDERMANNUS HUNDRED! SEU WAPEN•
TACHIL Alderman of a hundred or wapentake.
Spelman.
ALDERMANNUS REGIS. Alderman of the king.
So called, either because he received his appointment from the king or because he gave the judgment of the king in the premises allotted to him.
ALFET. A cauldron into which boiling water was
poured, in which a criminal plunged his arm up
to the elbow, and there held it for some time, as
an ordeal. Du Cange.
ALFRED'S CODE. See Dombec, Domboc.
ALGARUM MARIS. Probably a corruption of
Laganum marls, lagan being a right, in the middle ages, like jetsam and flotsam, by which goods
thrown from a vessel in distress became the
property of the king, or the lord on whose shores
they were stranded. Spelman; Jacob; Du Cange.
ALDERMANNUS TOTIUS ANGLIZE. Alderman
of all England. An officer among the AngloSaxons, supposed by Spelman to be the same with
the chief justiciary of England in later times.
Spelman.
ALE-CONNER. In old English law, an officer
appointed by the court-leet, sworn to look to the
assise and goodness of ale and beer within the
precincts of the leet. Kitch. Courts, 46; Whishaw.
And to look to the assise of bread. Cowell.
This officer is still continued in name, though
the duties are changed or given up; 1 Crabb, Real
Prop. 501.
ALGO. Span. In Spanish law, property. White,
Nov.Recop. b. 1, tit. 5, c. 3, § 4.
ALIA. Lat. Other things.
ALIA ENORMIA. Other wrongs. The name
given to a general allegation of injuries caused
by the defendant with which the plaintiff in an
action of trespass under the common-law practice
concluded his declaration. Archb.Crim.Pl. 694.
ALE-HOUSE. A place where ale is sold to be
drunk on the premises where sold.
ALIAMENTA. A liberty of passage, open way,
water-course, etc., for the tenant's accommodation.
Kitchen.
ALE SILVER. A rent or tribute paid annually to
the lord mayor of London, by those who sell ale
within the liberty of the city.
ALE-STAKE. A maypole or long stake driven
into the ground, with a sign on it for the sale of
ale. Cowell.
ALIAS. Lat. Otherwise; equivalent of "alias
dictus" or "otherwise called", indicating one was
called by one or the other of two names, Corn-
94
ALIENA
monwealth v. Liebowitz, 143 Pa.Super. 75, 17 A.
2d 719, 721; at another time; in another manner;
formerly.
ALIAS DICTUS. "Otherwise called." Antone v.
State, 49 Ariz. 168, 65 P.2d 646, 649, (shorter and
more usual form, alias; see Kennedy v. People,
39 N.Y. 245). Known by both those names, and is
called one or the other. People v. Mellon, 171
Misc. 171, 11 N.Y.S.2d 786, 790. A fictitious name
assumed by a person is colloquially termed an
"alias!' State v. Melson, 161 La. 423, 108 So. 794,
795.
ALIEN. n. A foreigner; one born abroad.
A person who owes allegiance to a foreign
government. De Cano v. State, 7 Wash.2d 613,
110 P.2d 627, 631, 633.
In this country is a person born out of the United States
and unnaturalized under our Constitution and laws, 2 Kent,
Comm. 50. Caparell v. Goodbody, 132 N.J.Eq. 559, 29 A.2d
5. 63, 569. In England, one born out of the allegiance of the
king.
A native born Filipino living in the United States but
not admitted to United States citizenship was an "alien".
United States v. Gancy, D.C.Minn., 54 F.Supp. 755, 758,
759. But term for immigration purposes would not apply
to a Filipino seeking to enter the Territory of Hawaii or
to a Filipino lawfully admitted to Hawaii who seeks entry
therefrom into the United States. Id. Nor to citizens of
the Philippine Islands of the Filipino race. De Cano v.
State, 7 Wash.2d 613, 110 P.2d 627, 631, 633.
As to the effect of marriage on the status of women,
whether they were originally aliens or citizens of theUnited States, see 8 U.S.C.A. §i 9-368; U. S. ex rel.
Ulrich v. Kellogg, 58 App.D.C. 360, 30 F.2d 984, 985, 71
A.L.R. 1210. Petition of Peterson, D.C.Wash., 33 F.Supp.
615, 616. Johansen v. Staten Island Shipbuilding Co., 272
N.Y. 140, 5 N.E.2d 68, 70. In re Pezzi, D.C.Cal., 29 F.2c1.
999, 1001.
ALIAS EXECUTION. One issued after first has
been- returned without having accomplished its
purpose. Richards-Conover Hardware Co. v.
Sharp, 150 Kan. 506, 95 P.2d 360, 364.
ALIAS SUBPOENA. One issued after the first
has been returned without having accomplished
its purpose. Richards-Conover Hardware Co. v.
Sharp, 150 Kan. 506, 95 P.2d 360, 364.
ALIEN or ALIENE. v. To transfer or make
over to another; to convey or transfer the property of a thing from one person to another; toalienate. Usually applied to the transfer of lands
and tenements. Co.Litt. 118; Cowell.
ALIAS SUMMONS. A summons issued when original has not produced its effect because defective in form or manner of service, and when issued, which supersedes the first writ. Mansur v.
Pacific Mut. Life Ins. Co. of California, 136 Mo.
App. 726, 118 S.W. 1193, 1194; McGuire v. Montvale Lumber Co., 190 N.C. 806, 131 S.E. 274, 275.
ALIEN AMY. In international law, alien friend.
An alien who is the subject or citizen of a foreign
government at peace with our own.
ALIAS TAX WARRANT. One issued after the
first has been returned without having accomplished its purpose. Richards-Conover Hardware Co. v.
Sharp, 150 Kan. 506, 95 P.2d 360, 364.
ALIEN AND SEDITION LAWS. Acts of congress
of July 6 and July 14, 1798. See Whart. State Tr.
22.
ALIAS WRIT. A second writ. Ditmar v. Beckham, Tex.Civ.App., 77 S.W.2d 893, 894.
ALIEN ENEMY. In international law, an alien
who is the subject or citizen of some hostile
state or power. See Dyer, 2b; Co.Litt. 129b. A
person who, by reason of owing a permanent or
temporary allegiance to a hostile power, becomes,
in time of war, impressed with the character of
an enemy. See 1 Kent, Comm. 74; 2 Id. 63; Bell
v. Chapman, 10 Johns., N.Y., 183; Dorsey v. Brigham, 177 Ill. 250, 52 N.E. 303, 42 L.R.A. 809. Subjects of a foreign state at war with United
States. Caparell v. Goodbody, 132 N.J.Eq. 559, 29
A.2d 563, 569.
At common law "alias" as applied to an execution or fieri
facias referred to new writ issued after original fieri facias
was returned unproductive, but under the Code the term
applies to an execution issued in lieu of a lost original.
U-Driv-It System of Macon v. Lyles, 71 Ga.App. 70, 30
S.E.2d 111, 114. A writ issued where one of the same kind
has already been issued in the same cause without having
been effective. Schmidt v. Schmidt, 108 Mont. 246, 89 P.2d
1020, 1021. It is used of all species of writs.
Historically, the word "alias" refers to a former command of the same sort, and it was part of a Latin sentence
meaning, "We command you as we have before (sicut
alias) commanded you." Schmidt v. Schmidt, 108 Mont.
246, 89 P.2d 1020, 1021.
Whether or not a person is an alien enemy depends, not
on his nationality, but on the place in which he voluntarily
resides or carries on business. Porter v. Freudenberg,
[1915] 1 K.B. 857. See, also, Noble v. Great American Ins.
Co., 194 N.Y.S. 60, 66, 200 App.Div. 773.
ALIAS WRIT OF EXECUTION. One issued after the first has been returned without having accomplished its purpose. Richards-Conover Hardware Co. v. Sharp, 150 Kan. 506, 95 P.2d 360, 364.
ALIEN FRIEND. Subjects of a foreign state at
peace with the United States. Caparell v. Goodbody, 132 N.J.Eq. 559, 29 A.2d 563, 569, 570. Or
citizen; an alien amy. Techt v. Hughes, 229 N.Y.
222, 128 N.E. 185, 186, 11 A.L.R. 166.
ALIBI. Lat. In criminal law, elsewhere; in another place. State v. Hubbard, 351 Mo. 143, 171 S.
W.2d 701, 706.
ALIEN NÉE. An alien born, i. e., a person who,
has been born an alien.
Means that at time of commission of crime charged in
indictment defendant was at different place so remote or
distant or under such circumstances that he could not have
committed offense. State v. Parsons, 206 Iowa 390, 220
N.W. 328, 330. It is a physical circumstance and derives
its entire potency as a defense from fact that it involves
the physical impossibility of guilt of accused. Gregg v.
State, 69 Okl.Cr. 103, 101 P.2d 289, 296. Strictly it is not a
defense though usually called such in criminal procedure.
State v. Norman, 103 Ohio St. 541, 134 N.E. 474.
ALIENA NEGOTIA EXACTO OFFICIO GERUN
TUR. The business of another is to be conducted
with particular attention. Jones, Bailm. 83; First
Nat. Bank of Carlisle v. Graham, 79 Pa. 118, 21_
Am.Rep. 49.
95
ALIENABLE
ALIENABLE. Proper to be the subject of alienation or transfer.
mal marriage relation. Young v. Young, 236 Ala.
627, 184 So. 187, 190.
ALIENAGE. The condition or state of an alien.
Loss of consortium between spouses from wrongful acts
of others. Young v. Young, 236 Ala. 627, 184 So. 187, 190.
The deprivation of one spouse of the right to the aid, comfort, assistance, and society of the other spouse in family
relationships. Hargraves v. Ballou, 47 R.I. 186, 131 A. 643,
645.
&LIENATE. To convey; to transfer the title to
property. Co.Litt. 118b. Alien is very commonly
used in the same sense. 1 Washb. Real Prop. 53.
"Sell, alienate, and dispone" are the formal words of
transfer in Scotch conveyances of heritable property. Bell.
The term has a technical legal meaning, and any transfer of real estate, short of a conveyance of the title, is not
an alienation of the estate. Masters v. Insurance Co., 11
Barb., N.Y., 630. See, also, Nichols & Shepard Co. v.
Dunnington, 118 Okl. 231, 247 P. 353, 355. But the word
has been defined as to convey or transfer to another as
title, property, or right, to part voluntarily with ownership of property, and, in widest sense, property is alienated when transferred from one person to another in any
way; but generally alienating is restricted to transfer of
title to property by act of owner, as distinguished from
transfer effected entirely by operation of law. Delfelder v.
Poston, 42 Wyo. 176, 293 P. 354, 361.
ALIENATIO LICET PROHIBEATUR, CONSENSU TAMEN OMNIUM, IN QUORUM FAVOREM
PROHIBITA EST, POTEST FIERI, ET QUILIBET
POTEST RENUNCIARE JURI PRO SE INTRODUCTO. Although alienation be prohibited, yet,
by the consent of all in whose favor it is prohibited, it may take place; for it is in the power of
any man to renounce a law made in his own
favor. Co.Litt. 98.
ALIENATION OFFICE. In English practice, an
office for the recovery of fines levied upon writs
of covenant and entries.
ALIENEE. One to whom an alienation, conveyance, or transfer of property is made. See Alienor.
ALIENI GENERIS. Lat. Of another kind. 3 P.
Wms. 247.
ALIENI JURIS. Lat. Under the control, or subject to the authority, of another person; e. g., an
infant who is under the authority of his father
or guardian; a wife under the power of her husband. The term is contrasted with Sui Juris, (q.
v.).
ALIENIGENA. One of foreign birth; an alien.
7 Coke, 31.
ALIENISM. The state, condition, or character of
an alien. 2 Kent, Comm. 56, 64, 69.
ALIENATIO REI PR1EFERTUR JURI ACCRESCENDI. Alienation is favored by the law rather
than accumulation. Co.Litt. 185.
ALIENIST. One who has specialized in the study
of mental diseases. State v. Reidell, 9 Houst.,
Del., 470, 14 A. 550, 552. Persons qualified by experience, knowledge, and previous opportunities
to express opinion as to defendant's mental condition at a particular time. People v. Norton, 138
Cal.App. 70, 31 P.2d 809, 810.
ALIENATION. In real property law, the transfer of the property and possession of lands, tenements, or other things, from one person to another. Termes de la Ley.
The term is particularly applied to absolute conveyances
of real property. Conover v. Mutual Ins. Co., 1 N.Y. 290,
294. The voluntary and complete transfer from one person
to another. Rich v. Doneghey, 71 Okl. 204, 177 P. 86, 89, 3
A.L.R. 352; Chouteau v. Chouteau, 49 Okl. 105, 152 P. 373,
376. Disposition by will. Contra, Postlethwaite v. Edson,
102 Kan. 619, 171 P. 769, 773, L.R.A.1918D, 983. Leases,
especially of Indians' allotted lands. Bailey v. King, 57
Okl. 528, 157 P. 763, 764; Ashton v. Noble, 65 Okl. 45, 162
P. 784, 785; Williams v. Hylan, 215 N.Y.S. 101, 106, 126
Misc.Rep. 807. Every mode of passing realty by the act of
the party, as distinguished from passing it by the operation of law. Rathbun v. Allen, 63 R.I. 109, 7 A.2d 273,
275. But the term is inapplicable to mortgages. Worthington v. Tipton, 24 N.M. 89, 172 P. 1048, 1049.
The act by which the title to real estate is voluntarily
resigned by one person to another and accepted by the
latter, in the forms prescribed by law. Cf. In re Ehrhardt, U.S.D.C., 19 F.2d 406, 407 (bankruptcy proceedings).
It is said to signify the wrongful transfer of property to
another or the wrongful conversion of property for which
an action of trover was maintainable at common law.
Sauls v. Whitman, 171 Oki. 113, 42 P.2d 275, 280.
ALIENOR. He who makes a grant, transfer of
title, conveyance, or alienation. Correlative of
alienee.
ALIENUS. Lat. Another's; belonging to another; the property of another. Alienus homo,
another's man, or slave. Inst. 4, 3, pr. Aliena res,
another's property. Bract. fol. 13b.
ALIGNMENT. The act of laying out or adjusting
a line. The state of being so laid out or adjusted.
The ground plan of a railway or other road or
work as distinguished from its profile or gradients.
Village of Chester v. Leonard, 68 Conn. 495, 37
A. 397. An adjustment to a line. Harner v.
Monongalia County Court, 80 W.Va. 626, 92 S.E.
781, 785.
ALIKE. Similar to another. The term is not
synonymous with "identical," which means "exactly the same." Carn v. Moore, 74 Fla. 77, 76 So.
337, 340.
In medical jurisprudence, a generic term denoting the different kinds or forms of mental
aberration or derangement.
ALIENATION IN MORTMAIN. See Amortization; Mortmain.
ALIMENT. In Scotch law, to maintain, support,
provide for; to provide with necessaries. As a
noun, maintenance, support; an allowance from
the husband's estate for the support of the wife.
Paters. Comp. §§ 845, 850, 893.
ALIENATION OF AFFECTIONS. The robbing of
husband or wife of the conjugal affection, society,
fellowship, and comfort which inheres in the nor96
ALIUNDE
pending an appeal. Robinson v. Robinson, N.J.
Err. & App., 92 A. 94, 96, L.R.A.1915B, 1071.
Permanent alimony is a provision for the support and maintenance of a wife during her lifetime. In re Spencer, 83 Cal. 460, 23 P. 395, 17
Am.St.Rep. 266.
In civil law, food and other things necessary to
the support of life; money allowed for the purpose of procuring these. Dig. 50, 16, 43.
In common law, to supply with necessaries.
Purcell v. Purcell, 3 Edw.Ch.N.Y. 194.
ALIMENTA. Lat. In the civil law, aliments;
things necessary to sustain life; means of support, including food, (cibaria,) clothing, (vestitus,)
and habitation, (habitatio.) Dig. 34, 1, 6.
ALIO INTUITU. Lat. In a different view; under
a different aspect. 4 Rob.Adm. & Pr. 151. With
another view or object; with respect to another
case or condition. 7 East, 558; 6 M. & S. 231.
See Diverso Intuitu.
ALDIENTOS. The Spanish term for support and
maintenance. Escriche Diccionario.
ALIQUID CONCEDITUR NE INJURIA REMANEAT IMPUNITA, QUOD ALIAS NON CONCEDERETUR. Something is (will be) conceded, to
prevent a wrong remaining unredressed, which
otherwise would not be conceded. Co.Litt. 197b.
ALIMONY. Comes from Latin "alimonia" meaning sustenance, and means, therefore, the sustenance or support of the wife by her divorced husband and stems from the common-law right of
the wife to support • by her husband. Eaton v.
Davis, 176 Va. 330, 10 S.E.2d 893, 897. Derived
from Latin word "alere," meaning to nourish or
sustain. Allowances which husband by court order
pays wife for maintenance while they are separated or after they are divorced. Merriman v.
Hawbaker, D.C.Ill., 5 F.Supp. 432, 433. Or pending a suit for divorce. And see Bowman v. Worthington, 24 Ark. 522; Lynde v. Lynde, 64 N.J.Eq.
736, 52 A. 694, 58 L.R.A. 471. But in its strictly
legal sense relates to the provisions made pendente lite. Warne v. Warne, 36 S.D. 573, 156 N.
W. 60, 62. Compare Emerson v. Emerson, 120
Md. 584, 87 A. 1033, 1035, holding that in the absence of statute, in case of an absolute divorce the
duty to support ceases and with it the right to
alimony.
ALIQUID POSSESSIONIS ET NIHIL JURIS.
Somewhat of possession, and nothing of right,
(but no right).
A phrase used by Bracton to describe that kind of possession which a person might have of a thing as a guardian, creditor, or the like; and also that kind of possession
which was granted for a term of years, where nothing
could be demanded but the usufruct. Bract. fols. 39a,
160a.
ALIQUIS NON DEBET ESSE JUDEX IN PROPRIA CAUSA, QUIA NON POTEST ESSE JUDEX ET PARS. A person ought not to be judge
in his own cause, because he cannot act as judge
and party. Co.Litt. 141; 3 Bl.Comm. 59.
ALIQUOT. Strictly, contained in something else
an exact number of times. But as applied to resulting trusts, "aliquot" is treated as meaning
fractional. Fox v. Shanley, 94 Conn. 350, 109 A.
249, 251. And means any definite interest. Hinshaw v. Russell, 280 Ill. 235, 117 N.E. 406, 408.
Generally it is restricted to money unless otherwise
authorized by statute. Lloyd v. Lloyd, 183 Ga. 751, 189
S.E. 903, 904. But it may be such an allowance out of husband's estate. Davis v. Davis, 61 Okl. 275, 161 P. 190, 191.
Equally applicable to all allowances, whether annual or
in gross. Burrows v. Purple, 107 Mass. 432.
It may continue during the joint lives of husband and
wife, or so long as they live apart. Cohen v. Cohen, Md.,
174 Md. 61, 197 A. 564, 565, 566. But is essentially a different thing from a division of the property of the parties.
Mesler v. Jackson, Circuit Judge, 188 Mich. 195, 154 N.W.
63, 65. Not being an "estate", nor the separate property
of wife. Cizek v. Cizek, 69 Neb. 797, 99 N.W. 28.
It does not partake of nature of damages or penalty for
husband's misconduct. Kennard v. Kennard, 87 N.H. 320,
179 A. 414, 419. Nor is it founded on contract, express or
i mplied, but on husband's natural and legal duty to support wife. Smith v. Smith, D.C.N.Y., 7 F.Supp. 490, 491.
In its broad sense, it means also an award for the support of a child or children. Schafer v. Schafer, 193 N.Y.S.
43, 44, 118 Misc.Rep. 254; Brown v. Brown, 222 Mass. 415,
111 N.E. 42, 43. And it includes provision for an education. Floyd v. Floyd, 91 Fla. 910, 108 So. 896, 898.
ALITER. Otherwise; as otherwise held or decided.
ALIUD EST CELARE, ALIUD TACERE. To conceal is one thing; to be silent is another. Lord
Mansfield, 3 Burr. 1910.
ALIUD EST DISTINCTIO, ALIUD SEPARATIO.
Distinction is one thing; separation is another.
It is one thing to make things distinct, another
thing to make them separable.
ALIUD EST POSSIDERE, ALIUD ESSE IN
POSSESSIONE. It is one thing to possess; it is
another to be in possession. Hob. 163.
ALIUD EST VENDERE, ALIUD VENDENTI
CONSENTIRE. To sell is one thing; to consent
to a sale (seller) is another thing. Dig. 50, 17,
160.
Alimony in gross, or in a lump sum, is in the
nature of a final property settlement, and hence
in some jurisdictions is not included in the term
"alimony," which in its strict or technical sense
contemplates money payments at regular intervals. Parmly v. Parmly, 125 N.J.Eq. 545, 5 A.2d
789, 791; 27 C.J.S. Divorce, § 235, p. 965.
Alimony pendente lite is an allowance made
pending a suit for divorce or separate maintenance including a reasonable allowance for preparation of the suit as well as for support. Davis
v. Davis, 15 Wash.2d 297, 130 P.2d 355, 359. Or
Black's Law Dictionary Revised 4th Ed.-7
ALIUD EXAMEN. A different or foreign mode
of trial. 1 Hale, Com.Law, 38.
ALIUNDE, Lat. From another source; from
elsewhere; from outside.
Evidence aliunde. Evidence from outside, from
another source. In certain cases a written in97
ALIUNDE
strument may be explained by evidence aliunde,
that is, by evidence drawn from sources exterior
to the instrument itself, e. g., the testimony of a
witness to conversations, admissions, or preliminary negotiations.
Evidence aliunde (i. e., from without the will) may be
received to explain an ambiguity in a will. 1 Greenl. Ev.
§ 291.
permanent injury, and embraces not only all incapacity to labor, directly or indirectly arising
from such permanent injury, but likewise cases of
no incapacity at all. Bausch v. Fidler, 277 Pa.
573, 121 A. 507. Includes pain, annoyance, inconveniences, disability to work, and everything incident to the permanent injury. Vanaskie v. Stevens Coal Co., 133 Pa.Super. 457, 2 A.2d 531, 532.
ALIUNDE RULE. A verdict may not be impeached by evidence of juror unless foundation
for introduction thereof is first made by competent evidence aliunde, or from some other source.
State v. Adams, 141 Ohio St. 423, 48 N.E.2d 861,
863, 146 A.L.R. 509.
ALL FAULTS. A sale of goods with "all faults"
covers, in the absence of fraud on the part of the
vendor, all such faults and defects as are not inconsistent with the identity of the goods as the
goods described. Whitney v. Boardman, 118 Mass.
242.
ALIUS. Lat. Other. The neuter form is aliud,
something else; another thing.
ALL FOURS. Two cases or decisions which are
alike in all material respects, and precisely similar
in all the circumstances affecting their determination, are said to be or to run on "all fours."
ALIVE. As respects birth, it means that child
shall have an independent life of its own for some
period, even momentarily, after birth. Evidenced
by respiration or other indications of life, such as
beating of heart and pulsation of arteries. Fleming v. Sexton, 172 N.C. 250, 90 S.E. 247, 249. Cf.
Hydrostatic Test. Or heart tones in response to
artificial respiration, or pulsation of umbilical
cord after being severed. In re Stuertz' Estate,
124 Neb. 149, 245 N.W. 412, 413.
In respect of estate matters, a child en ventre
sa mere is "born" and "alive" for all purposes for
his benefit. In re Holthausen's Will, 175 Misc.
1022, 26 N.Y.S.2d 140, 143.
ALL THE ESTATE. The name given in England
to the short clause in a conveyance or other assurance which purports to convey "all the estate,
right, title, interest, claim, and demand" of the
grantor, lessor, etc., in the property dealt with.
Da y .Conv. 93.
ALL THE MEMBERS. The provision of a church
constitution that "all the members" can discharge
their parish priest means that all shall have opportunity to participate, but not that all members must attend the meeting or vote in the affirmative for the discharge of the priest. Stryjewski
v. Panfil, 269 Pa. 568, 112 A. 764, 765.
ALL. Means the whole of—used with a singular
noun or pronoun, and referring to amount, quantity, extent, duration, quality, or degree. The
whole number or sum of—used collectively, with
a plural noun or pronoun expressing an aggregate. Every member of individual component of;
each one of—used with a plural noun. In this
sense, all is used generically and distributively.
"All" refers rather to the aggregate under which
the individuals are subsumed than to the individuals themselves. State v. Hallenberg-Wagner
Motor Co., 341 Mo. 771, 108 S.W.2d 398, 401. See
Both.
ALL—ADDENDUM. As respects patent on a
tooth gearing, "all-addendum" and "all-dedendum"
mean that the working faces of the teeth of one
element are outside, and those of the other element inside, their respective "pitch circles" which
refers to circles passing through the pitch point
and coaxial with the axes of rotation of the intermeshing gear wheels. In re Cook, Cust. & Pat.
App., 103 F.2d 909, 911.
ALLEGANS CONTRARIA NON EST AUDIENDUS. One alleging contrary or contradictory
things (whose statements contradict each other)
is not to be heard. 4 Inst. 279. Applied to the
statements of a witness.
ALL AMERICAN. Indicative of supremacy, superiority, and distinction in the athletic world.
R. W. Eldridge Co. v. Southern Handkerchief
Mfg. Co., D.C.S.C., 23 F.Supp. 179, 182, 184, 185.
ALLEGANS SUAM TURPIT1UDINEM NON EST
AUDIENDUS. One who alleges his own infamy is
not to be heard. 4 Inst. 279.
ALL AND SINGULAR. All without exception.
A comprehensive term often employed in conveyances, wills, and the like, which includes the aggregate or whole and also each of the separate
items or components. McClaskey v. Barr, C.C.,
54 Fed. 798.
ALLEGARI NON DEBUIT QUOD PROBATUM
NON RELEVAT. That ought not to be alleged
which, if proved, is not relevant. 1 Ch.Cas. 45.
ALLEGATA. In Roman law, a word which the
emperors formerly signed at the bottom of their
rescripts and constitutions; under other instruments they usually wrote signata or testata.
Encyc. Lond.
ALL CASES AT LAW. Within constitutional
guaranty of jury trial, refers to common law actions as distinguished from causes in equity and
certain other proceedings. Breimhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719, 734.
ALLEGATA ET PROBATA. Lat. Things alleged
and proved. The allegations made by a party to a
suit, and the proof adduced in their support.
Crump v. State, 30 Ala.App. 241, 4 So.2d 188, 189.
ALL DISABILITY. Includes both total and partial disability caused by a permanent injury to the
leg or arm, or resulting from or relating to the
98
ALLIANCE
ALLEGATIO CONTRA FACTUM NON EST ADMITTENDA. An allegation contrary to the deed
(or fact) is not admissible.
ALLEGATION. The assertion, declaration, or
statement of a party to an action, made in a
pleading, setting out what he expects to prove.
Mathews v. Underpinning & Foundation Co., 17 N.
J.Misc. 79, 4 A.2d 788, 789.
A material allegation in a pleading is one essential to the claim or defense.
In ecclesiastical law, the statement of the facts
intended to be relied on in support of the contested suit.
In English ecclesiastical practice the word seems to
designate the pleading as a whole ; the three pleadings are
known as the allegations; and the defendant's plea is distinguished as the defensive, or sometimes the responsive,
allegation, and the complainant's reply as the rejoining
allegation.
ALLEGATION OF FACT. Generally narration
of transaction by stating details according to their
legal effect, and statement of right or liability
flowing from certain facts is conclusion of law.
Maylender v. Fulton County Gas & Electric Co.,
131 Misc. 514, 227 N.Y.S. 209, 217.
and armed forces when permitted to remain in or
pass through the country or its waters.
Natural allegiance. In English law, that kind
of allegiance which is due from all men born within the king's dominions, immediately upon their
birth, which is intrinsic and perpetual, and- cannot
be divested by any act of their own. 1 Bl.Comm.
369; 2 Kent, Comm. 42. In American law, the allegiance due from citizens of the United States
to their native country, and also from naturalized
citizens, and which cannot be renounced without
the permission of government, to be declared by
law. 2 Kent, Comm. 43-49.
It is said to be due to the king in his political, not his
personal, capacity; L. R. 17 Q. B. D. 54, quoted in U. S.
v. Wong Kim, Ark., 169 U.S. 663, 18 Sup.Ct. 456, 42 L.Ed.
890; and so in the United States "it is a political obligation" depending not on ownership of land, but on the
enjoyment of the protection of government; Wallace v.
Harmstad, 44 Pa. 492; and it "binds the citizen to the
observance of all laws" of his own sovereign; Adams v.
People, 1 N.Y. 173.
ALLEGIARE. To defend and clear one's self;
to wage one's own law. An archaic word which
simply means to define or justify by due course of
law. State v. Hostetter, Mo., 222 S.W. 750.
ALLEGING DIMINUTION. The allegation in an
appellate court, of some error in a subordinate
part of the nisi prius record. See Diminution.
ALLEGATION OF FACULTIES. A statement
made by the wife of the property of her husband,
in order to obtain alimony. Wright v. Wright, 3
Tex. 168. See Faculties.
ALLEN CHARGE. An instruction advising jurors
to have deference for each other's views, that they
should listen, with a disposition to be convinced,
to each other's argument, deriving its name from
the case of Allen v. United States, 164 U.S. 492, 17
S.Ct. 154, 41 L.Ed. 528, wherein the instruction was
approved. Coupe v. United States, 72 App.D.C. 86,
113 F.2d 145, 149; Green v. U. S., 309 F.2d 852.
Variously called dynamite charge, shotgun instruction, third degree instruction.
ALLEGE. To state, recite, assert, or charge; to
make an allegation. To affirm, assert, or declare.
State v. Hostetter, Mo.Sup., 222 S.W. 750, 754.
ALLEGED. Stated; recited; claimed; asserted;
charged. Lynn v. Nichols, 122 Misc.Rep. 170, 202
N.Y.S. 401, 406.
ALLEGIANCE. Obligation of fidelity and obedience to government in consideration for protection
that government gives. U. S. v. Kuhn, D.C.N.Y.,
49 F.Supp. 407, 414.
ALLERGY. A susceptibility to disease. Vogt v.
Ford Motor Co., Mo.App., 138 S.W.2d 684, 688.
ALLEVIARE. L. Lat. In old records, to levy or
pay an accustomed fine or composition; to redeem
by such payment. Cowell.
The citizen or subject owes an absolute and permanent
allegiance to his government or sovereign until he becomes
a citizen or subject of another government or another sovereign. The alien owes a local and temporary allegiance
during period of his residence. U. S. v. Wong Kim, Ark.,
169 U.S. 649, 18 Sup.Ct. 456, 42 L.Ed. 890.
"The tie or ligamen which binds the subject [or citizen]
to the king [or government] in return for that protection
which the king [or government] affords the subject, [or
citizen."] 1 Bl.Comm. 366. It consists in "a true and
faithful obedience of the subject due to his sovereign," 7
Coke, 4b, and is a comparatively modern corruption of
ligeance (ligeantia), which is derived from liege (ligius),
meaning absolute or unqualified. It signified originally
liege fealty, 1. e. absolute and unqualified fealty. 18
L. Q. Rev. 47.
ALLEY. A narrow way designed for the special
accommodation of the property it reaches. Atchison, T. & S. F. Ry. Co. v. City of Chanute, 95 Kan.
161, 147 P. 836, 837; Wooldridge v. Pacific Coast
Coal Co., Wash., 155 P.2d 1001, 1003.
ALLIANCE. The relation or union between persons or families contracted by intermarriage;
affinity.
In international law, a union or association of
two or more states or nations, formed by league
or treaty, for the joint prosecution of a war
(offensive alliance), or for their mutual assistance
and protection in repelling hostile attacks (defensive alliance). The league or treaty by which
the association is formed. The act of confederating, by league or treaty, for the purposes mentioned.
In Norman French, alleviation; relief ; redress.
Kelham.
Acquired allegiance, is that binding a naturalized citizen.
Local or actual allegiance, is that measure of
obedience due from a subject of one government
to another government, within whose territory he
is temporarily resident. From this are excepted
foreign sovereigns and their representatives, naval
The term Is also used in a wider sense, embracing unions
for objects of common interest to the contracting parties,
99
ALLISION
as the "Holy Alliance" entered into in 1815 by Prussia,
Austria and Russia for the purpose of counteracting the
revolutionary movement in the interest of political liberalism.
ALLISION. The running of one vessel into or
against another, as distinguished from a collision,
i. e., the running of two vessels against each other.
But this distinction is not very carefully observed.
ALLODIUM. Land held absolutely in one's own
right, and not of any lord or superior; land not
subject to feudal duties or burdens.
An estate held by absolute ownership, without
recognizing any superior to whom any duty is
due on account thereof. 1 Washb.Real Prop. 16.
McCartee v. Orphan Asylum, 9 Cow., N.Y., 511,
18 Am.Dec. 516.
ALLOCABLE. Synonymous with "distributable".
In analyzing accounts, the breaking down of a
lump sum charged or credited to one account into
several parts to be charged or credited to other
accounts. Fleming v. Commissioner of Internal
Revenue, C.C.A.Tex., 121 F.2d 7, 9.
ALLOGRAPH. A writing or signature made for
a person by another; opposed to autograph.
ALLOCATE. Power to allocate critical materials
included power to distribute, to assign, to allot.
Gallagher's Steak House v. Bowles, C.C.A.N.Y.,
142 F.2d 530, 534. To ration or withhold from
private consumption. State ex rel. Guide Management Corp. v. Alexander, 223 Ind. 221, 59 N.E.2d
169, 172.
ALLONGE. A piece of paper annexed to a bill of
exchange or promissory note, on which to write
endorsements for which there is no room on the
instrument itself. Pardessus, n. 343; Story, Prom.
Notes, §§ 121, 151; Fountain v. Bookstaver, 141
Ill. 461, 31 N.E. 17; Bergmann v. Puhl, 195 Wis.
120, 217 N.W. 746, 748, 56 A.L.R. 915.
ALLOCATION. An allowance made upon an account in the English exchequer. Cowell. Placing
or adding to a thing. Encyc. Lond.
Assignment or allotment. Jacobson v. Bowles,
D.C.Tex., 53 F.Supp. 532, 534.
ALLOPATHIC PRACTICE. The ordinary method
of practicing medicine as adopted and taught by
the great body of physicians. Bradbury v. Bardin,
34 Conn. 452, 453, 35 Conn. 577. Also, and more
properly, that method of combatting disease by
the use of remedies producing effects different
from those of the disease being treated;—opposed
to homeopathy.
ALLOCATIONE FACIENDA. In old English
practice, a writ for allowing to an accountant such
sums of money as he hath lawfully expended in
his office; directed to the lord treasurer and
barons of the exchequer upon application made.
Jacob.
ALLOT. To apportion, distribute; to divide property previously held in common among those entitled, assigning to each his ratable portion, to be
held in severalty; to set apart specific property,
a share of a fund, etc., to a distinct party. Millet
v. Bilby, 110 Okl. 241, 237 P. 859, 861.
ALLOCATO COMITATU. In old English practice,
in proceedings in outlawry, when there were but
two county courts holden between the delivery of
the writ of exigi facias to the sheriff and its return, a special exigi facias, with an allocato
comitatu issued to the sheriff in order to complete
the proceedings. See Exigent.
In the law of corporations, to allot shares, debentures.
etc., is to appropriate them to the applicants or persons
who have applied for them; this is generally done by sending to each applicant a letter of allotment, informing him
that a certain number of shares have been allotted to him.
Sweet.
ALLOCATUR. Lat. It is allowed. A word formerly used to denote that a writ or order was allowed.
A word denoting the allowance by a master or prothonotary of a bill referred for his consideration, whether touching costs, damages, or matter of account. Lee, Diet.
A special allocatur is the special allowance of a writ
(particularly a writ of error) which is required in some
particular cases.
ALLOCATUR EXIGENT. A species of writ anciently issued in outlawry proceedings, on the return of the original writ of exigent. 1 Tidd, Pr.
128. See Exigent.
ALLOCUTION. Formality of court's inquiry of
prisoner as to whether he has any legal cause to
show why judgment should not be pronounced
against him on verdict of conviction. Archb.Crim.
Pl. 173; State v. Pruitt, Mo., 169 S.W.2d 399, 400.
ALLOCUTUS. See Allocution.
ALLODARII. Owners of allodial lands. Owners
of estates as large as a subject may have. Co.
Litt 1; Bac. Abr. "Tenure," A.
ALLODIAL. Free; not holden of any lord or
superior; owned without obligation of vassalage
or fealty; the opposite of feudal. Barker v.
Dayton, 28 Wis. 384; Wallace v. Harmstad, 44 Pa.
499.
ALLOTMENT. A share or portion; that which is
allotted; apportionment, division; the distribution of shares in a public undertaking or corporation. Reuter v. Reuter's Succession, 206 La. 474,
19 So.2d 209, 212. Assignment. Pace v. Eoff, Tex.
Com.App., 48 S.W.2d 956, 963. Partition; the
distribution of land under an enclosure act. The
term ordinarily and commonly used to describe
land held by Indians after allotment, and before
the issuance of the patent in fee that deprives
the land of its character as Indian country. Estes
v. U. S., C.C.A., 225 F. 980, 981; Harris v. Grayson, 90 Okl. 147, 216 P. 446, 449. See Allottee.
ALLOTMENT CERTIFICATE. A document issued to an applicant for shares in a company or
public loan announcing the number of shares
allotted or assigned and the amounts and due
dates of the calls or different payments to be
made on the same. An "allotment certificate,"
when issued to an enrolled member of the Five
Civilized Tribes of the Indian Territory, is an
100
ALLUVIO
adjudication of the special tribunal empowered to
decide the question that the party to whom it
issues is entitled to the land, and it is a conveyance of the right to this title to the allottee.
Bowen v. Carter, 42 Okl. 565, 144 P. 170, 173.
ALLOTMENT NOTE. In English law, a writing
by a seaman, whereby he makes an assignment of
part of his wages in favor of his wife, father or
mother, grandfather or grandmother, brother or
sister. Motley & Whitley.
ALLOTMENT SYSTEM. Designates the practice
in England of dividing land in small portions for
cultivation by agricultural laborers and other
cottagers at their leisure, and after they have performed their ordinary day's work. Wharton.
ALLOTMENT WARDEN. By the English general
inclosure act, 1845, § 108, when an allotment for
the laboring poor of a district has been made on
an inclosure under the act, the land so allotted is
to be under the management of the incumbent
and church warden of the parish, and two other
persons elected by the parish, and they are to be
styled "the allotment wardens" of the parish.
Sweet.
ALLOTTEE. One to whom an allotment is made,
who receives a ratable share under an allotment;
a person to whom land under an inclosure act or
shares in a public undertaking are allotted.
An "allottee," as the word is used in the act of April 21,
1904 (chapter 1402, 33 Stat. 189-204), is one, generally an
Indian, freedman, or adopted citizen of a tribe of Indians,
to whom a tract of land out of a common holding has been
given by, or under the supervision of, the United States.
Lynch v. Franklin, 37 Okl. 60, 130 P. 599, 600. The word
does not include such allottee's heirs. Bradley v. Goddard,
45 Oki. 77, 145 P. 409, 410.
ALLOW. The word has no rigid or precise meaning, but its import varies according to circumstances or context in connection with which it
is used. It may mean bestow, assign, to any one
as his right or due, to accord, or to imply discretion, or unqualified and definite promise to do
some specified thing. Dunlop Sand & Gravel Corporation v. Hospelhorn, 172 Md. 279, 191 A. 701,
706. To approve of, accept as true, approve, admit, concede, adopt, or fix. Headford Bros. &
Hitchins Foundry Co. v. Associated Manufacturers Corporation of America, 224 Iowa 1364, 278
N.W. 624, 628. To grant something as a deduction or an addition; to abate or deduct; as, to
allow a sum for leakage. Pittsburgh Brewing Co.
v. Commissioner of Internal Revenue, C.C.A.3,
107 F.2d 155, 156. To grant, or permit; as to allow an appeal or a marriage; to allow an account
or claim. Also to give a fit portion out of a larger
property or fund. Thurman v. Adams, 82 Miss.
204, 33 So. 944. To sanction, either directly or
indirectly, as opposed to merely suffering a thing
to be done. People v. Duncan, 22 Cal.App. 430,
134 P. 797, 798; to acquiesce in. Luckie v. Diamond Coal Co., 41 Cal.App. 468, 183 P. 178, 181;
Curtis & Gartside Co. v. Pigg, 39 Okl. 31, 134 P.
1125, 1129. To suffer, to tolerate; Gregory v. U.
S., 17 Blatchf. 325, Fed.Cas.No.5,803; to fix;
Hinds v. Marmolejo, 60 Cal. 229. To substitute.
Glenn v. Glenn, 41 Ala. 571. Intent in wills; and
an equivalent of I will; Ramsey v. Hanlon, C.C.
Pa., 33 F. 425.
ALLOWANCE. A deduction, an average payment, a portion assigned or allowed; the act of
allowing. See Stone v. State, 197 Ala. 293; 72
So. 536, 537; Sawyer v. U. S., C.C.A., 10 F.2d 416,
421. For "Family," see that title.
In army terminology, ordinarily refers to extra and
special items in addition to regular compensation. United
States v. Jackson, S.C., 302 U.S. 628, 58 S.Ct. 390, 392, 82
L. Ed. 488.
As distinguished from a "salary," which is a fixed compensation, decreed by authority and for permanence, and
is paid at stated intervals, and depends upon time, and not
the amount of the services rendered, "allowance" is a
variable quantity. Blaine County v. Pyrah, 32 Idaho, 111,
178 P. 702, 703.
Not synonymous with "alimony". Warne v. Warne, 36
S.D. 573, 156 N.W. 60, 62.
Special allowances. In English practice, in taxing the costs of an action as between party and
party, the taxing officer is, in certain cases, empowered to make special allowances; i. e., to allow the party costs which the ordinary scale
does not warrant. Sweet.
ALLOWANCE PENDENTE LITE. In the English
chancery division, where property which forms
the subject of proceedings is more than sufficient
to answer all claims in the proceedings, the court
may allow to the parties interested the whole or
part of the income, or (in the case of personalty)
part of the property itself. St. 15 & 16 Vict. c. 86,
§ 57; Daniell, Ch.Pr. 1070.
ALLOWED CLAIM. Against an estate it is a debt
or charge which is valid in law and entitled to
enforcement. Commissioner of Internal Revenue
v. Lyne, C.C.A.1, 90 F.2d 745, 747.
ALLOY. An inferior or cheaper metal mixed
with gold or silver in manufacturing or coining.
As respects coining, the amount of alloy is fixed
by law, and is used to increase the hardness and
durability of the coin.
A compound of two or more metals. Treibacher-Chethische Werke Gesellschaft mit Beschrankter Haftung v. Roessler & Hasslacher Chemical Co., C.C.A.N.Y., 219 F. 210, 211.
A mixture or combination of metals while in state of
fusion. Pittsburgh Iron & Steel Foundries Co. v. SeamanSleeth Co., D.C.Pa., 236 F. 756, 757; Treibacher Chemische
Werke Gesellschaft mit Beschrankter Haftung v. Roessler
& Hasslacher Chemical Co., D.C.N.Y., 214 F. 410, 412.
ALLOYNOUR. L. Fr. One who conceals, steals,
or carries off a thing privately. Britt. c. 17. See
Eloigne.
ALLUVIO MARIS. Lat. In the civil and old
English law, the washing up of the sea; the soil
thus formed; formation of soil or land from the
sea; maritime increase. Hale, Anal. § 8. "Alluvio maris is an increase of the land adjoining,
by the projection of the sea, casting up and adding
sand and slubb to the adjoining land, whereby it
is increased, and for the most part by insensible
degrees." Hale, de Jure Mar. pt. 1, c. 6.
101
ALLUVION
ALLUVION. That increase of the earth on a
shore or bank of a stream or the sea, by the force
of the water, as by a current or by waves, which
is so gradual that no one can judge how much is
added at each moment of time. Inst. 1, 2, t. 1, §
20. Ang. Water Courses, 53. Jefferis v. East
Omaha Land Co., 134 U.S. 178, 10 Sup.Ct. 518, 33
L.Ed. 872. Willett v. Miller, 176 Okl. 278, 55 P.2d
90, 92. "Accretion" denotes the act. However,
the terms are frequently used synonymously.
Katz v. Patterson, 135 Or. 449, 296 P. 54, 55.
Avulsion is sudden and perceptible. St. Clair
County v. Lovingston, 23 Wall. 46, 23 L.Ed. 59.
See Accretion; Avulsion.
ALLY. A nation which has entered into an alliance with another nation. 1 Kent, Comm. 69.`
A citizen or subject of one of two or more allied nations. Siemund v. Schmidt, Mun.Ct.N.Y.,
168 N.Y.S. 935.
ALMANAC. A publication, in which is recounted
the days of the week, month, and year, both common and particular, often distinguishing the fasts,
feasts, terms, etc., from the common days by proper marks, pointing out also the several changes
of the moon, tides, eclipses, etc.
the putting on the seals for that purpose ordained,
for which he collected a duty called "alnage."
Cowell; Termes de la Ley.
ALNETUM. In old records, a place where alders
grow, or a grove of alder trees. Doomsday Book;
Co.Litt. 4b.
ALOD, Alode, Alodes, Alodis. L. Lat. In feudal
law, old forms of alodium or allodium (q. v.).
A term used in opposition to feodum or fief, which
means property, the use of which was bestowed upon
another by the proprietor, on condition that the grantee
should perform certain services for the grantor, and upon
the failure of which the property should revert to the original possessor. See 1 Poll. & Maitl. 45.
ALODIAN. Sometimes used for anodial, but not
well authorized. Cowell.
ALODIARII. See Allodaril.
ALONE. Apart from others; singly; sole. Salem Capital Flour Mills Co. v. Water-Ditch & Canal Co., C.C.Or., 33 Fed. 154.
ALONG. Lengthwise of, implying motion or at
or near, distinguished from across. Nicolai v.
Wisconsin Power & Light Co., 227 Wis. 83, 277
N.W. 674, 678. By, on, up to, or over, according
to the subject-matter and context. State v.
Downes, 79 N.H. 505, 112 A. 246; Sioux City
Bridge Co. v. Miller, C.C.A., 12 F.2d 41, 48. The
term does not necessarily mean touching at all
points; Com. v. Franklin, 133 Mass. 569; nor does
it necessarily imply contact, Watts v. City of Winfield, 101 Kan. 470, 168 P. 319, 321.
ALMARIA. The archives, or, as they are sometimes styled, muniments of a church or library.
ALMESFEOH. In Saxon law, alms-fee; almsmoney. Otherwise called "Peter-pence." Cowell.
ALMOIN. Alms; a tenure of lands by divine
service. See Frankalmoigne.
ALSO. Besides; as well; in addition; likewise;
in like manner; similarly; too; withal. West
Jersey Trust Co. v. Hayday, 124 N.J.Eq. 85, 199 A.
407, 411. Some other thing; including; further;
furthermore; in the same manner; moreover;
nearly the same as the word "and" or "likewise."
Schilling v. Central California Traction Co., 1 P.
2d 53, 55, 115 Cal.App. 30.
ALMONER. One charged with the distribution
of alms. The office was first instituted in religious
houses and although formerly one of importance
is now in England almost a sinecure.
ALMOXARIFAZGO. In Spanish law, a general
term, signifying both export and import duties,
as well as excise.
The word imports no more than "item" and may mean
the same as "moreover" ; but not the same as "in like
manner" ; Evans v. Knorr, 4 Rawle (Pa.) 68; nor is it
synonymous with "other," City of Ft. Smith v. Gunter,
106 Ark. 371, 154 S.W. 181, 183. It may be (1) the beginning of an entirely different sentence, or (2) a copulative
carrying on the sense of the immediately preceding words
into those immediately succeeding. Stroud, Jud. Dict.,
citing 1 Jarm. 497 n. ; 1 Salk. 239; Security State Bank v.
Jones, 121 Kan. 396, 247 P. 862, 863.
ALMS. Charitable donations. Any species of
relief bestowed upon the poor. That which is
given by public authority for the relief of the
poor.
ALMS FEE. Peter-pence (or Peter's pence),
which see.
ALMSHOUSE. A house for the publicly supported paupers of a city or county. People v.
City of New York, 36 Hun, N.Y., 311. In England
an almshouse is not synonymous with a workhouse or poorhouse, being supported by private
endowment.
It may be a public institution kept up by public revenues, or it may be an institution maintained by private
endowment and contributions, where the indigent, sick,
and poor are cared for without cost to themselves. State
Board of Control v. Buckstegge, 18 Ariz. 277, 158 P. 837,
839.
ALNAGER, or ULNAGER. A sworn officer of the
king whose duty it was to look to the assise of
woolen cloth made throughout the land, and to
ALT. In Scotch practice, an abbreviation of
Alter, the other; the opposite party; the defender. 1 Broun, 336, note.
ALTA PRODITIO. L. Lat. In old English law,
high treason. 4 Bl.Comm. 75. See High Treason.
ALTA VIA. L. Lat. In old English law, a highway; the highway. 1 Salk. 222. Alta via regia;
the king's highway; "the king's high street."
Finch, Law, b. 2, c. 9.
ALTARAGE. In ecclesiastical law, offerings
made on the altar; all profits which accrue to
the priest by means of the altar. Ayliffe, Parerg.
61.
102
ALTERNATIVE
Alteration of highway means change of course of existing highway, leaving it substantially the same highway as
before, but with its course in some respects changed. Huening v. Shenkenberg, 208 Wis. 177, 242 N.W. 552, 553.
ALTENHEIM. A German word meaning "home
for old people." German Pioneer Verein v. Meyer, 70 N.J.Eq. 192, 63 A. 835.
An alteration is an act done upon the instrument by which its meaning or language is
changed. If what is written upon or erased from
the instrument has no tendency to produce this
result, or to mislead any person, it is not an alteration. Oliver v. Hawley, 5 Neb. 444.
An alteration is said to be material when it affects, or may possibly affect, the rights of the
persons interested in the document.
ALTER. To make a change in; to modify; to
vary in some degree; to change some of the elements or ingredients or details without substituting an entirely new thing or destroying the identity of the thing affected. Davis v. Campbell, 93
Iowa, 524, 61 N.W. 1053. To change partially.
Cross v. Nee, D.C.Mo., 18 F.Supp. 589, 594. To
change in one or more respects, but without destruction of existence or identity of the thing
changed; to increase or diminish. Kraus v.
Kraus, 301 I1l.App. 606, 22 N.E.2d 862. See Alteration; Change.
To change may import the substitution of an entirely
different thing, while to alter is to operate upon a subjectmatter which continues objectively the same while modified in some particular. To "amend" implies that the
modification made in the subject improves it, which is not
necessarily the case with an alteration. See Ex parte Woo
Jan, D.C.Ky., 228 F. 927, 940.
But "alter" is sometimes used synonymously with
"change," Board of Sup'rs of Yavapai County v. Stephens,
20 Ariz. 115, 177 P. 261, 264, and with "enlarge," City of
Jamestown v. Pennsylvania Gas Co., C.C.A.N.Y., 1 F.2d
871, 883.
The other; the opposite party. See Alt,
ALTER EGO. Second self. 3 C.J.S. Alter Ego.
Theory that subordinate or servient corporation may be
controlled by superior or dominant corporation, so that
dominant corporation may be held liable for subordinate
corporation's negligence. Barnes v. Liebig, 146 Fla. 219, 1
So.2d 247, 253.
To establish the "alter ego" doctrine, it must be shown
that the stockholders disregarded the entity of the corporation, made corporation a mere conduit for the transaction of their own private business, and that the separate
individualities of the corporation and its stockholders in
fact ceased to exist. Sefton v. San Diego Trust & Savings
Bank, Cal.App., 106 P.2d 974, 984.
The doctrine of "alter ego" does not create assets for
or in corporation, but it simply fastens liability on the
individual who uses the corporation merely as an instrumentality in conducting his own personal business, and
that liability springs from fraud perpetrated not on the
corporation, but on third persons dealing with corporation.
Garvin v. Matthews, 193 Wash. 152, 74 P.2d 990, 992.
A new corporation taking over all of mortgaged assets of
old corporation in exchange for all of old corporation's
capital stock and continuing to operate business formerly
operated by old corporation was "alter ego" of old corporation so as to be obligated to pay annual patent royalty
which old corporation was required to pay, notwithstanding that old corporation retained title to mortgaged assets.
Dummer v. Wheeler Osgood Sales Corp., 198 Wash. 381, 88
P.2d 453, 458.
ALTERATION. Variation; changing; making
different. A change of a thing from one form or
state to another; making a thing different from
what it was without destroying its identity. Paye
v. City of Grosse Pointe, 279 Mich. 254, 271 . N.W.
826, 827. See Alter.
As applied to buildings, it is a change or substitution in
a substantial particular of one part of a building for a
building different in that particular; a change or changes
within the superficial limits of an existing structure; an
installation that becomes an integral part of the building
and changes its structural quality; a substantial change
therein; a varying or changing the form or nature of such
building without destroying its identity. Paye v. City of
Grosse Pointe, 279 Mich. 254, 271 N.W. 826, 827.
Language different in legal effect, or change in rights,
interests, or obligations of parties. Bank of Moberly v.
Meals, 316 Mo. 1158, 295 S.W. 73, 77; Commercial Credit
Co. v. Giles, Tex.Civ.App., 207 S.W. 596, 598. It introduces
some change into instrument's terms, meaning, language,
or details. See U. S. v. Sacks, 257 U.S. 37, 42 S.Ct. 38, 39,
66 L. Ed. 118. Strictly speaking, it is some material change
on face of instrument by one of the parties thereto without consent of the other, Johnston v. DePuy, 15 N.J.Misc.
94, 188 A. 742, 743; since a mutual agreement of parties
concerned creates a new agreement. Leake, Cont. 430. If
performed by a mere stranger, it is more technically
described as a spoliation or mutilation. Knox v. Horne,
Tex.Civ.App., 200 S.W. 259, 260; Bercot v. Velkoff, 111 Ind.
App. 323, 41 N.E.2d 686, 692. The term is not properly
applied to any change which involves the substitution of a
practically new document. Kempner v. Simon, 195 N.Y.S.
333, 334, 119 Misc.Rep. 60. And it should in strictness be
reserved for the designation of changes in form or language, and not used with reference to modifications in
matters of substance. The term is also to be distinguished
from "defacement." Too, if what is done simply takes
away what was given before, or a part of it under a will, it
is a revocation; but if it gives something in addition or in
substitution, then it is an alteration. Appeal of Miles, 68
Conn. 237, 36 A. 39, 36 L.R.A. 176.
ALTERCATION. Warm contentions in words,
dispute carried on with heat or anger, controversy, wrangle, wordy contest. Ivory v. State,
128 Tex.Cr.R. 408, 81 S.W.2d 696, 698.
ALTERIUS CIRCUMVENTIO ALU NON PRIEBET ACTIONEM. The deceiving of one person
does not afford an action to another. Dig. 50, 17,
49.
ALTERNAT. A usage among diplomatists by
which the rank and places of different powers,
who have the same right and pretensions to precedence, are changed from time to time, either in
a certain regular order or one determined by
lot. In drawing up treaties and conventions, for
example, it is the usage of certain powers to alternate, both in the preamble and the signatures,
so that each power occupies, in the copy intended
to be delivered to it, the first place. Wheat.Int.
Law, § 157.
ALTERNATE LEGACY. See Legacy.
ALTERNATIM. L. Lat. Interchangeably. Litt.
§ 371; Townsh.Pl. 37.
ALTERNATIVA PETITIO NON EST AUDIENDA. An alternative petition or demand is not to
be heard. 5 Coke, 40.
ALTERNATIVE. One or the other of two things;
giving an option or choice; allowing a choice
between two or more things or acts to be done.
See Malone v. Meres, 91 Fla. 709, 109 So. 677, 693.
103
ALTERNATIVE
ALTERNATIVE CONTRACT. A contract whose
terms allow of performance by the doing of either
one of several acts at the election of the party
from whom performance is due. Crane v. Peer,
43 N.J.Eq. 553, 4 A. 72.
ALTERNATIVE JUDGMENT. See Judgment.
ALTERNATIVE OBLIGATION. An obligation allowing the obligor to choose which of two things
he will do, the performance of either of which
will satisfy the instrument. A promise to deliver a certain thing or to pay a specified sum of
money is an example of this kind of obligation.
ALTERNATIVE PLEADING. A pleading alleging substantive facts so disjunctively that it cannot be determined upon which of them the pleader intends to rely as basis for recovery. Groover
v. Savannah Bank & Trust Co., 186 Ga. 476, 198
S.E. 217, 219.
ALTERNATIVE RELIEF. The term "alternative," as used in Equity Rule 25 (see Fed.Rules
Civ.Proc. rule 8, 28 U.S.C.A.), allowing relief to be
stated and sought in alternative forms, means
mutually exclusive. Boyd v. New York & H. R.
Co., D.C.N.Y., 220 F. 174, 179.
ALTERNATIVE REMAINDERS. Remainders In
which disposition of property is made in alternative, one to take effect only in case the other does
not, and in substitution of it. Riddle v. Killian,
366 Ill. 294, 8 N.E.2d 629, 634.
ALTERNATIVE REMEDY. Where a new remedy is created in addition to an existing one, they
are called "alternative" if only one can be enforced; but if both, "cumulative."
think proper. In general, however, every one enjoys this privilege, unless he is restrained by some
contrary title. Sandars, Just.Inst. 119.
ALTO ET BASSO. High and low. This phrase
is applied to an agreement made between two
contending parties to submit all matters in dispute, alto et basso, to arbitration. Cowell.
ALTUM MARE. L. Lat. In old English law, the
high sea, or seas. Co.Litt. 260b. The deep sea.
Super altum mare, on the high seas. Hob. 212b.
ALUMNUS. A child which one has nursed; a
foster-child. Dig. 40, 2, 14.
Also a graduate from a school, college, or other institution of learning.
ALVEUS. The bed or channel through which the
stream flows when it runs within its ordinary
channel. Calvinus, Lex.
Alveus derelictus, a deserted channel. Mackeld.
Rom.Law, § 274.
AMALGAMATION. Union of different races, or
diverse elements, societies, or corporations, so as
to form a homogeneous whole or new body; interfusion; intermarriage; consolidation; coalescence; as, the amalgamation of stock. Stand.
Dict.
To join in a single body two or more associations, organizations, or corporations. Peterson v. Evans, 288 Ill.App.
623, 6 N.E.2d 520.
In England it is applied to the merger or consolidation
of two incorporated companies or societies.
The word has no definite meaning; it involves the blending of two concerns into one; 1904, 2 Ch. 268.
AMALPHITAN CODE OR TABLE. A collection
of sea-laws, compiled about the end of the eleventh century, by the people of Amalphi.
ALTERNATIVE WRIT. A writ commanding the
person against whom it is issued to do a specified
thing, or show cause to the court why he should
not be compelled to do it. Allee v. McCoy, 2
Marv., Del., 465, 36 A. 359. Under the commonlaw practice, the first mandamus is an alternative
writ; 3 Bla.Com. 111; but in modern practice this
writ is often dispensed with and its place is taken
by a rule to show cause. See Mandamus.
AMANUENSIS. One who writes on behalf of
another that which he dictates.
ALTERNIS VICIBUS. L. Lat. By alternate
turns; at alternate times; alternately. Co.Litt.
4a; Shep.Touch. 206.
AMBACTUS. A messenger; a servant sent about;
one whose services his master hired out. Spelman.
ALTERUM NON LIEDERE. Not to injure another. This maxim, and two others, honeste vivere,
and suum cuique tribuere, (q. v.,) are considered
by Justinian as fundamental principles upon
which all the rules of law are based. Inst. 1, 1, 3.
AMBASCIATOR. A person sent about in the
service of another; a person sent on a service,
A word of frequent occurrence in the writers of
the middle ages. Spelman.
ALTERUTER. Lat. One of two; either.
ALTIUS NON TOLLENDI. In the civil law, a
servitude due by the owner of a house, by which
he is restrained from building beyond a certain
height. Dig. 8, 2, 4; Sandars, Just.Inst. 119.
ALTIUS TOLLENDI. In the civil law, a servitude which consists in the right, to him who is
entitled to it, to build his house as high as he may
It consists of the laws on maritime subjects, which were
or had been in force in countries bordering on the Mediterranean; and was for a long time received as authority
in those countries. Azuni; Wharton. It became a part
of the law of the sea; The Scotia, 14 Wall., U.S., 170, 20
L.Ed. 822. See Code.
AMBASSADOR. In international law, a public
officer, clothed with high diplomatic powers, commissioned by a sovereign prince or state to transact the international business of his government
at the court of the country to which he is sent.
The commissioner who represents one country in the
seat of government of another. He is a public minister,
which, usually, a consul is not. Brown. A person sent by
one sovereign to another, with authority, by letters of
credence, to treat on affairs of state. Jacob. The personal
representatives of the head of the state which sends them,
104
AMBULANCE
uncertain to persons of competent skill and knowledge to
under6tand them. Story, Contr. 272. It does not include
uncertainty arising from the use of peculiar words, or of
common words in a peculiar sense. Wig. Wills, 174; In
re Milliette's Estate, 206 N.Y.S. 342, 349, 123 Misc.Rep.
745. It is latent where the language employed is clear and
intelligible and suggests but a single meaning, but some
extrinsic fact or extraneous evidence creates a necessity
for interpretation or a choice among two or more possible
meanings, as where a description apparently plain and
unambiguous is shown to fit different pieces of property.
Logue v. Von Almen, 379 Ill. 208, 40 N.E.2d 73, 82, 140
A.L.R. 251. A patent ambiguity is that which appears on
the face of the instrument, and arises from the defective,
obscure, or insensible language used. Carter v. Holman,
60 Mo. 504; Stokeley v. Gordon, 8 Md. 505; Carroll v.
Cave Hill Cemetery Co., 172 Ky. 204, 189 S.W. 186, 190.
entitled to special honors and special privileges and having
varied duties; mouthpiece of communications, government
informant, and protector of citizens of his country. Russian Government v. Lehigh Valley R. Co., D.C.N.Y., 293
F. 133. See Letter of Credence; Minister.
A distinction was formerly made between Ambassadors
Extraordinary, who were sent to conduct special business
or to remain for an indeterminate period, and Ambassadors
Ordinary, who were sent on permanent missions; but this
distinction is no longer observed.
AMBER, or AMBRA. In old English law, a measure of four bushels.
AMBEDEXTER. Skillful with both hands; one
who plays on both sides. Applied anciently to an
attorney who took pay from both sides, and subsequently to a juror guilty of the same offense.
Cowell.
AMBIGUITY UPON THE FACTUM. An ambiguity in relation to the very foundation of the instrument itself, as distinguished from an ambiguity in
regard to the construction of its terms.
AMBIGUA RESPONSIO CONTRA PROFERENTEM EST ACCIPIENDA. An ambiguous answer
is to be taken against (is not to be construed in
favor of) him who offers it. 10 Coke, 59.
The term is applied, for instance, to a doubt as to
whether a testator meant a particular clause to be a part
of the will, or whether it was introduced with his knowledge, or whether a codicil was meant to republish a former
will, or whether the residuary clause was accidentally
omitted. Eatherly v. Eatherly, 1 Cold., Tenn., 461, 465, 78
Am. Dec. 499.
AMBIGUIS CASIBUS SEMPER PRLESUMITUR
PRO REGE. In doubtful cases, the presumption
always is in behalf of the crown. Lofft, Append.
248.
A1ti1BIG1UITAS. Lat. From ambiguus, doubtful,
uncertain, obscure. Ambiguity; uncertainty of
meaning.
Ambiguitas latens, a latent ambiguity; ambiguitas patens, a patent ambiguity. See Ambiguity.
AMBIGUUM PACTUM CONTRA VENDITOREM
INTERPRETANDUM EST. An ambiguous contract is to be interpreted against the seller.
AMBIGUUM PLACITUM INTERPRETARI DEBET CONTRA PROFERENTEM. An ambiguous
plea ought to be interpreted against the party
pleading it. Co.Litt. 303b.
AMBIGUITAS CONTRA STIP1ULATOREM EST.
Doubtful words will be construed most strongly
against the party using them.
AMBIT. A boundary line, as going around a
place; an exterior or inclosing line or limit. Ellicott v. Pearl, 10 Pet., U.S., 412, 442, 9 L.Ed. 475.
The limits or circumference of a power or jurisdiction;
the line circumscribing any subject-matter. As to the
ambit of a port, see Leonis Steamship Co.; Ltd., v. Rank,
Ltd., [1907] 1 K.B. 344, 352; Pyman Bros. v. Dreyfus
Bros. & Co. [1890] 24 Q.B.D. 152, 155.
AMBIGUITAS VERBORUM LATENS VERWICATIONE SUPPLETUR; NAM QUOD EX FACTO
ORITUR AMBIGUUM VERIFICATIONE FACTI
TOLLITUR. A latent ambiguity in the language
may be removed by evidence; for whatever ambiguity arises from an extrinsic fact may be explained by extrinsic evidence. Bac.Max.Reg. 23.
Said to be "an unprofitable subtlety; inadequate
and uninstructive." Prof. J. B. Thayer in 6 Harv.
L. 417.
AMBITUS. In the Roman law, a going around;
a path worn by going around. A space of at least
two and a half feet in width, between neighboring
houses, left for the convenience of going around
them. Calvin.
The procuring of a public office by money or
gifts; the unlawful buying and selling of a public
office. Inst. 4, 18, 11; Dig. 48, 14.
AMBIGUITAS VERBORUM PATENS NULLA
VERIFICATIONE EXCLUDITUR. A patent ambiguity cannot be cleared up by extrinsic evidence
(or is never holpen by averment). Lofft, 249;
Bacon, Max. 25.
AMBLOTIC. Having the power to cause abortion; anything used to produce abortion.
AMBIGUITY. Doubtfulness; doubleness of meaning. Chapman v. Metropolitan Life Ins. Co., 172
S.C. 250, 173 S.E. 801, 803. Duplicity, indistinctness, or uncertainty of meaning of an expression
used in a written instrument. Arkansas Amusement Corporation v. Kempner, C.C.A.Ark., 57 F.
2d 466, 472. Want of clearness or definiteness.,
difficult to comprehend or distinguish; of doubtful import. Business Men's Assur. Ass'n v. Read,
Tex.Civ.App., 48 S.W.2d 678, 680. For "Extrinsic
Ambiguity," see that title.
Ambiguity of language is to be distinguished from unintelligibility and inaccuracy, for words cannot be said to be
ambiguous unless their signification seems doubtful and
AMBULANCE. A vehicle for the conveyance of
the sick or wounded. In time of war they are
considered neutral and must be respected by the
belligerents. Oppenheim, Int.L. 126.
AMBULANCE CHASER. A lawyer or his agent
who follows up accidents in the streets and tries
to induce the injured person to sue for damages.
Kelley v. Boyne, 239 Mich. 204, 214 N.W. 316, 318,
53 A.L.R. 273.
A popular name for one who solicits negligence cases
for an attorney. In re Newell, 160 N.Y.S. 275, 278, 174 App.
Div. 94. One seeking out persons and directing them tx)
an attorney in consideration of a percentage of the recovery. In re Mitgang, 385 Ill.
52 N.E.2d 807, 816.
105
AMBULANCE
AMBULANCE CHASING. A term descriptive of
the practice of some attorneys, on hearing of a
personal injury which may have been caused by
the negligence or wrongful act of another, of at
once seeking out the injured person with a view
to securing authority to bring action on account
of the injury. Chunes v. Duluth, W. & P. Ry. Co.,
D.C.Minn., 298 F. 964. Laymen's acquainting
themselves with occurrence of accidents and approaching injured persons or their representatives
with a view toward soliciting employment for an
attorney in the litigation arising from the accident State ex rel. Wright v. Hinckle, 137 Neb.
735, 291 N.W. 68, 72.
AMBULATORIA EST VOLUNTAS DEFUNCT!
USQUE AD VITAE SUPREMUM EXITUIVI. The
will of a deceased person is ambulatory until the
latest moment of life. Dig. 34, 4, 4.
AMBULATORY. (Lat. ambulare, to walk
about). Movable; revocable; subject to change.
Ambulatoria voluntas (a changeable will) denotes the power which a testator possesses of altering his will during his life-time. Hattersley v.
Bissett, 50 N.J.Eq. 577, 25 Atl. 332.
Courts. The court of king's bench in England
was formerly called an ambulatory court, because
it followed the king's person, and was held sometimes in one place and sometimes in another.
So, in France, the supreme court or parliament
was originally ambulatory. 3 Bl.Comm. 38, 39, 41.
A sheriff's return has been said to be ambulatory until it is filed. Wilmot, J., 3 Burr. 1644.
AMBUSH. The noun "ambush" means (1) the
act of attacking an enemy unexpectedly from a
concealed station; (2) a concealed station, where
troops or enemies lie in wait to attack by surprise,
an ambuscade; (3) troops posted in a concealed
place for attacking by surprise. The verb "ambush" means to lie in wait, to surprise, to place in
ambush. Dale County v. Gunter, 46 Ala. 118, 142,
referred to in Darneal v. State, 14 Okl.Cr. 540,
174 P. 290, 292, 1 A.L.R. 638.
AMELIORATING WASTE. An act of lessee,
though technically constituting waste, yet in fact
resulting in improving instead of doing injury to
land. J. H. Bellows Co. v. Covell, 28 Ohio App.
277, 162 N.E. 621, 622.
Betterments; improveAMELIORATIONS.
ments. 6 Low.Can. 294; 9 Id. 503.
AMENABLE. Subject to answer to the law; accountable; responsible; liable to punishment.
Pickelsimer v. Glazener, 173 N.C. 630, 92 S.E. 700,
704.
Also means tractable, that may be easily led or
governed; formerly applied to a wife who is governable by her husband. Cowell.
AMENDE HONORABLE. An apology.
In old English law, it was a penalty imposed upon a person by way of disgrace or infamy, as a punishment for any
offense, or for the purpose of making reparation for any
injury done to another, as the walking into church in a
white sheet, with a rope about the neck and a torch in
the hand, and begging the pardon of God, or the king, or
any private individual, for some delinquency.
A punishment somewhat similar to this, which bore the
same name, was common in France for offenses against
public decency or morality. It was abolished by the law
of the 25th of September, 1791; Merlin, Rêpert. In 1826
it was re-introduced in cases of sacrilege and was finally
abolished in 1830.
AMENDMENT. A change, ordinarily for the better. Musher v. Perera, 162 Md. 44, 158 A. 14, 15.
An amelioration of the thing without involving
the idea of any change in substance or essence.
Van Deusen v. Ruth, 343 Mo. 1096, 125 S.W.2d 1, 3.
Any writing made or proposed as an improvement of some principal writing. Ex parte Woo
Jan, D.C.Ky., 228 F. 927, 941; Couch v. Southern
Methodist University, Tex.Civ.App., 290 S.W. 256,
260.
In legislation, it is a modification or alteration
proposed to be made in a bill on its passage, or
an enacted law; also such modification or change
when made. Brake v. Callison, C.C.Fla., 122 Fed.
722; State v. MacQueen, 82 W.Va. 44, 95 S.E. 666,
668.
It is to be distinguished from a "substitute for a bill."
In re Ross, 86 N.J.Law, 387, 94 A. 304, 306. It is an alteration in the law already existing, leaving some part of the
original still standing. State ex inf. Crain ex rel. Peebles
v. Moore, 339 Mo. 492, 99 S.W.2d 17, 19. To effect an
i mprovement or better carry out the purpose for which
statute was framed. State ex rel. Foster v. Evatt, 144 Ohio
St. 65, 56 N.E.2d 265, 282. And it includes additions to, as
well as corrections of, matters already treated. Christian
Feigenspan, Inc., v. Bodine, D.C.N.J., 264 F. 186, 190. See,
also, State v. Fulton, 99 Ohio St. 168, 124 N.E. 172, 175.
In practice it is the correction of error committed in progress of a cause. Lintott v. McCluskey,
105 N.J.Eq. 354, 148 A. 161, 164. The correction
of an error committed in any process, pleading, or
proceeding at law, or in equity, and which is done
either of course, or by the consent of parties, or
upon motion to the court in which the proceeding
is pending. 3 Bl.Comm. 407, 448; 1 Tidd, Pr. 696.
Hardin v. Boyd, 113 U.S. 756, 5 Sup.Ct. 771, 28 L.
Ed. 1141.
An amendment to a pleading, as distinguished from a
"supplemental pleading" ( q. v.), has reference to facts
existing at the time of the commencement of the action.
Fisher v. Bullock, 198 N.Y.S. 538, 540, 204 App. Div. 523.
And it is the correction of some error or mistake in a
pleading already before the court. Pantaleo v. Colt's Patent Fire Arms Mfg. Co., D.C.N.Y., 13 F.Supp. 989, 990.
AMENDS. A satisfaction given by a wrongdoer
to the party injured, for a wrong committed. 1
Lil.Reg. 81.
AMENITY. In real property law, such circumstances, in regard to situation, outlook, access to a
water course, or the like, as enhance the pleasantAMEND. To improve. To change for the better
ness or desirability of an estate for purposes of
by removing defects or faults. Cross v. Nee, D.C.
Mo., 18 F.Supp. 589, 594. To change, correct, reresidence, or contribute to the pleasure and enjoyvise. Texas Co. v. Fort, 168 Tenn. 679, 80 S.W.2d
ment of the occupants, rather than to their indispensable needs.
658, 660.
106
AMICUS
ertheless be answerable for the full extent of the
sum subscribed by him, without right to claim
contribution from subsequent underwriters.
American Ins. Co. v. Griswold, 14 Wend., N.Y.,
399.
AMERICAN EXPERIENCE TABLE OF MORTALITY. A series of tables dealing with life insurance, costs and values, varying according to
the age of the insured, the period during which
the policy has been in force, and the term of the
particular policy. Horton v. Atlantic Life Ins.
Co., 187 S.C. 155, 197 S.E. 512, 514, 116 A.L.R. 788.
In England, upon the building of a railway or the construction of other public works, "amenity damages" maY
be given for the defacement of pleasure grounds, the
i mpairment of riparian rights, or other destruction of or
injury to the amenities of the estate.
In the law of easements, an "amenity" consists in
restraining the owner from doing that with and on his
property which, but for the grant or covenant, he might
lawfully have done; sometimes called a "negative easement" as distinguished from that class of easements which
compel the owner to suffer something to be done on his
property by another. Equitable Life Assur. Soc. v. Brennan, 30 Abb.N.C. 260, 24 N.Y.Supp. 784, 788. A restrictive
covenant. South Buffalo Stores v. W. T. Grant Co., 274
N.Y.S. 549, 555, 153 Misc. 76.
AMENS. See Demens.
AMEUBLISSEMENT. In French law, a species
of agreement which by a fiction gives to immovable goods the quality of movable. Merl. Rêpert.,
1 Low.Can. 25, 58.
AMENTIA. Insanity; idiocy. See Insanity.
AMERALIUS. L. Lat. A naval commander, under the eastern Roman empire, but not of the
highest rank; the origin, according to Spelman,
of the modern title and office of admiral. Spelman.
AMI; AMY. A friend; as alien ami, an alien belonging to a nation at peace with us; prochein
ami, a next friend suing or defending for an inf ant, married woman, etc.
AMERCE. To impose an amercement or fine;
to punish by a fine or penalty.
AMERCEMENT. A pecuniary penalty, in the
nature of a fine, imposed upon a person for some
fault or misconduct, he being "in mercy" for his
offense. It was assessed by the peers of the delinquent, or the affeerors, or imposed arbitrarily
at the discretion of the court or the lord. Goodyear v. Sawyer, C.C.Tenn., 17 Fed. 9.
The difference between amercements and fines is as follows : The latter are certain, and are created by some
statute ; they can only be imposed and assessed by courts
of record; the former are arbitrarily imposed. Termes
de la Ley, 40.
The word "amercement" has long been especially used
of a mulct or penalty, imposed by a court upon its own
officers for neglect of duty, or failure to pay over moneys
collected. In particular, the remedy against a sheriff for
failing to levy an execution or make return of proceeds of
sale is, in several of the states, known as "amercement."
In others, the same result is reached by process of attachment. Abbott. Stansbury v. Mfg. Co., 5 N.J.Law, 441.
AMERCEMENT ROYAL. In Great Britain a penalty imposed on an officer for a misdemeanor in
his office.
AMERICAN. Pertaining to the western hemisphere or in a more restricted sense to the United
States. See Beardsley v. Selectmen of Bridgeport, 53 Conn. 493, 3 A. 557, 55 Am.Rep. 152. It
was assumed in Life Photo Film Corp. v. Bell, 90
Misc.Rep. 469, 154 N.Y.S. 763, 764, that the term
"American" included all classes of citizens, native
and naturalized, irrespective of where they originally came from.
AMERICAN AGENCY SYSTEM. Its purport is
that upon termination of an insurance agency,
if the agent's financial obligations to the insurer
are paid in full, all rights in the expiration data
of existing insurance procured by the agent belong to him. Woodruff v. Auto Owners Ins. Co.,
300 Mich. 54, 1 N.W.2d 450, 453.
AMERICAN CLAUSE. In marine insurance, a
proviso in a policy to the effect that, in case of
any subsequent insurance, the insurer shall nev-
AMICABLE. Friendly; mutually forbearing;
agreed or assented to by parties having conflicting interests or a dispute; as opposed to hostile
or adversary.
AMICABLE ACTION. An action brought and
carried on by the mutual consent and arrangement of the parties, to obtain judgment of court
on a doubtful question of law, the facts being usually settled by agreement. Lord v. Veazie, 8 How.
251, 12 L.Ed. 1067. See Case Stated.
AMIABLES COMPOSITEURS. See Amicable
Compounders.
AMICABLE COMPOUNDERS. In Louisiana law
and practice, amicable compounders are arbitrators authorized to abate something of the strictness of the law in favor of natural equity.
AMICABLE SCIRE FACIAS TO REVIVE A
JUDGMENT. A written agreement, signed by the
person to be bound by the revival, in the nature
of a writ of scire facias with a confession of judgment thereon, which must be duly docketed, but
which requires no judicial action on the part of
the court, and which has the force and effect of
a judgment rendered upon an adverse or contested writ of scire facias. Second Nat. Bank, for
Use of Federal Reserve Bank of Philadelphia, v.
Faber, 332 Pa. 124, 2 A.2d 747, 749.
AMICUS CURVE, Lat. A friend of the court.
A by-stander (usually a counsellor) who interposes and
volunteers information upon some matter of law in regard
to which the judge is doubtful or mistaken, Fort Worth
& D. C. Ry. Co. v. Greathouse, Tex.Civ.App., 41 S.W.2d
418, 422; or upon a matter of which the court may take
judicial cognizance. The Claveresk, C.C.A.N.Y., 264 F. 276,
279; In re Perry, 83 Ind. App. 456, 148 N.E. 163, 165.
Implies friendly intervention of counsel to remind court of
legal matter which has escaped its notice, and regarding
which it appears to be in danger of going wrong. Blanchard v. Boston & M. R., 86 N.H. 263, 167 A. 158, 160.
Also a person who has no right to appear in a
suit but is allowed to introduce argument, authority, or evidence to protect his interests. Ladue v.
Goodhead, 181 Misc. 807, 44 N.Y.S.2d 783, 787.
107
AMIRAL
AMIRAL. Fr. In French maritime law, admiral.
Ord. de la Mar. liv. 1, tit. 1, § 1.
.NMITA. Lat. An aunt on the father's side.
Amita magna. A great-aunt on the father's side.
Amita major. A great-great aunt on the father's
side. Amita maxima. A great-great-great aunt,
or a great-great-grandfather's sister. Calvinus,
Lex.
AMITINUS. The child of a brother or sister; a
cousin; one who has the same grandfather, but
different father and mother. Calvinus, Lex.
AMITTERE. Lat. In the civil and old English
law, to lose. Hence the old Scotch "amitt."
AMITTERE CURIAM. To lose the court; to be
deprived of the privilege of attending the court.
AMITTERE LEGEM TERRIE. To lose the protection afforded by the law of the land.
AMITTERE LIBERAM LEGEM. To lose one's
frank-law.
A term having the same meaning as amittere legem terrce, (q. v.)
He who lost his law lost the protection
extended by the law to a freeman, and became subject to
the same law as thralls or serfs attached to the land.
To lose the privilege of giving evidence under oath in
any court; to become infamous, and incapable of giving
evidence. Glanville 2. If either party in a wager of battle
cried "craven" he was condemned amittere liberam legem;
3 Bla.Com. 340.
AMNESIA. Loss of memory.
AMNESTY. A sovereign act of oblivion for past
acts, granted by a government to all persons (or
to certain persons) who have been guilty of crime
or delict, generally political offenses,—treason, sedition, rebellion,—and often conditioned upon
their return to obedience and duty within a prescribed time.
A general pardon or proclamation of such pardon from subjects' offenses against the government; while usually exerted in behalf of certain
classes of persons, subject to trial, but not convicted, it is not confined to such cases. Commonwealth v. Hamburg Magistrate, 104 Pa.Super. 221,
158 A. 629, 631.
A declaration of the person or persons who have
newly acquired or recovered the sovereign power
in a state, by which they pardon all persons who
composed, supported, or obeyed the government
which has been overthrowti.
The word "amnesty" properly belongs to international
law, and is applied *to treaties of peace following a state
of war, and signifies there the burial in oblivion of the
particular cause of strife, so that that shall not be again a
cause for war between the parties; and this signification of
"amnesty" is fully and poetically expressed in the Indian
custom of burying the hatchet. And so amnesty is applied
to rebellions which by their magnitude are brought within
the rules of international law. It means only "oblivion,"
and never is a grant. Knote v. U. S., 10 Ct.C1. 407.
Amnesty is the abolition and forgetfulness of the offense;
pardon is forgiveness. Knote v. U. S., 95 U.S. 149, 152, 24
L.Ed. 442. The first is usually addressed to crimes against
the sovereignty of the state, to political offenses; the second condones infractions of the peace of the state. Burdick v. United States, 236 U.S. 79, 35 S.Ct. 267, 271, 59
L.Ed. 476.
Express amnesty is one granted in direct terms.
Implied amnesty is one which results when a
treaty of peace is made between contending parries. Vattel, 1, 4, c. 2, § 20.
AMONG. Mingled with or in the same group or
class. Dwight Mfg. Co. v. Word, 200 Ala. 221, 75
So. 979, 983, Genung v. Best, 100 N.J.Eq. 250, 135
A. 514, 516. Intermingled with. Eddings v. Southern Dairies, D.C.S.C., 42 F.Supp. 664, 666.
Commerce among the states cannot stop at the external
boundary line of each state. Gibbons v. Ogden, 9 Wheat.
194, 6 L.Ed. 23; Ft. Smith & W. R. Co. v. Blevins, 35 Okl.
378, 130 P. 525, 529. Where property is directed by will
to be distributed among several persons, it cannot be all
given to one, nor can any of the persons be wholly
excluded from the distribution. Hudson v. Hudson, 6
Munf., Va., 352.
"Among" is sometimes held to be equivalent to
"between" ; Hick's Estate, 134 Pa. 507, 19 A. 705; Records
v. Fields, 155 Mo. 314, 55 S.W. 1021. But "among" implies
more than two objects as differentiated with "between."
St. Louis Union Trust Co. v. Little, 320 Mo. 1058, 10 S.W.2d
47, 53.
AMORTISE. See Amortize.
AMORTISSEMENT. (Fr.) The redemption of a
debt by a sinking fund.
AMORTIZATION. An alienation of lands or tenements in mortmain. The reduction of the property of lands or tenements to mortmain.
In its modern sense, amortization is the operation of paying off bonds, stock, a mortgage, or
other indebtedness, commonly of a state or corporation, by installments, or by a sinking fund.
An "amortization plan" for the payment of an indebtedness is one where there are partial payments of the principal, and accrued interest, at
stated periods for a definite time, at the expiration of which the entire indebtedness will be extinguished. Bystra v. Federal Land Bank of Columbia, 82 Fla. 472, 90 So. 478, 480; Applestein v.
Royalty Realty Corporation, 181 Md. 171, 28 A.2d
830, 831.
AMORTIZE. To alien lands in mortmain.
To destroy, kill, or deaden. Elliott v. U. S.,
D.C.Me., 16 F.2d 164, 165. See Amortization.
AMOTIO. In the civil law, a moving or taking
away. "The slightest amotio is sufficient to constitute theft, if the animus furandi be clearly established." 1 Swint. 205. See Amotion.
AMOTION. A putting or turning out; dispossession of lands. Ouster is an amotion of possession.
3 Bl.Comm. 199, 208.
A moving or carrying away; the wrongful taking of personal chattels. Archb.Civil PLIntrod.
2, § 3.
In corporation law, the act of removing an officer, or
official representative, of a corporation from his office or
official station, before the end of the term for which he
was elected or appointed, but without depriving him of
membership in the body corporate. In this last respect the
term differs from "disfranchisement," or expulsion. Richards v. Clarksburg, 30 W.Va. 491, 4 S.E. 774; In re Koch,
257 N.Y. 318, 178 N.E. 545, 546.
108
ANALOGOUS
AMPLIATION. Action of judge in merely deferring the cause for further examination constitutes
"ampliation," practice in such instances being for
judge to make the usual notation of non liquet.
Sonnier v. Sonnier, 14 La.App. 588, 130 So. 133,
135.
In civil law, a deferring of judgment until a
cause be further examined. Calvin.; Cowell. An
order for the rehearing of a cause on a day appointed, for the sake of more ample information.
Halifax, Anal. b. 3, c. 13, n. 32.
AMOUNT. The effect, substance, or result; the
total or aggregate sum. Hilburn v. Railroad Co.,
23 Mont. 229, 58 P. 551.
The sum of principal and interest, McCabe v. Cary's
Ex'rs, 135 Va. 428, 116 S.E. 485, 491. But see In re Stoneman, Sur., 146 N.Y.S. 172, 175 (interest excluded). See,
also, Candelaria v. Gutierrez, 28 N.M. 434, 213 P. 1037,
holding that the "amount of judgment" within a statute
requiring a bond for supersedeas does not include interest
or costs.
AMOUNT COVERED. In insurance, the amount
that is insured, and for which underwriters are
liable for loss under a policy of insurance.
In this case, the judges pronounced the word amplius,
or by writing the letters N. L. for non liquet (q. v.), signifying that the cause was not clear. It is very similar to
the common-law practice of entering cur. adv. vult in similar cases.
AMOUNT IN CONTROVERSY. The damages
claimed or relief demanded; the amount claimed
or sued for. Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121, 36
S.Ct. 30, 60 L.Ed. 174; Smith v. Giles, 65 Tex, 341;
Wabash Ry. Co. v. Vanlandingham, C.C.A.Mo., 53
F.2d 51.
In French law, a duplicate of an acquittance or
other instrument. A notary's copy of acts passed
before him, delivered to the parties.
AMPLIUS. In the Roman law, more; further;
more time.
Value of property. Peterson v. Sucro, C.C.A.N.C., 93
F.2d 878, 114 A.L.R. 890. Value of the property interest
in trade-name. Beneficial Industrial Loan Corporation v.
Kline, C.C.A.Iowa, 132 F.2d 520, 525. Value of the object
sought to be gained by the suit. Boesenberg v. Chicago
Title & Trust Co., C.C.A.I11., 128 F.2d 245, 246. Aggregate
amount of all causes of action properly joined in action
at law. Firestone Tire & Rubber Co. v. Brent, D.C.N.Y.,
2 F.Supp. 425, 426. Contra. Plaintiffs' claims could not be
aggregated for jurisdictional purposes. Independence
Shares Corporation v. Deckert, C.C.A.Pa., 108 F.2d 51, 53.
A word which the praetor pronounced in cases where
there was any obscurity in a cause, and the judices were
uncertain whether to condemn or acquit; by which the
case was deferred to a day named. Adam, Rom. Ant. 287.
AMPUTATION OF RIGHT HAND. An ancient
punishment for a blow given in a superior court;
or for assaulting a judge, sitting in the court.
AMOUNT IN DISPUTE. Value in money of the
relief prayed for. Finley v. Smith, Mo.App., 170
S.W.2d 166, 170; or sought but denied, Bushnell
v. Mississippi & Fox River Drainage Dist. of Clark
County, 340 Mo. 811, 102 S.W.2d 871, 873, and includes value of thing in contest where a thing, instead of an amount, is in dispute. Noel Estate V.
Louisiana Oil Refining Corporation, La.App., 170
So. 272, 273.
AMOUNT OF LOSS. In insurance, the diminution, destruction, or defeat of the value of, or of
the charge upon, the insured subject to the assured, by the direct consequence of the operation
of the risk insured against, according to its value
in the policy, or in contribution for loss, so far
as its value is covered by the insurance.
AMUSEMENT. Pastime; diversion; enjoyment.
A pleasurable occupation of the senses, or that
which furnishes it." Young v. Board of Trustees
of Broadwater County High School, 90 Mont. 576,
4 P.2d 725, 726,
AMY. See Ami; Prochein Ami.
AN. The English indefinite article. Equivalent
to "one" or "any"; seldom used to denote plurality. Kaufman v. Superior Court, 115 Cal. 152, 46
Pac. 904.
AN ET JOUR. Fr. Year and day; a year and a
day.
AN, JOUR, ET WASTE. In feudal law, year, day,
and waste. A forfeiture of the lands to the crown
incurred by the felony of the tenant, after which
time the land escheats to the lord. Termes de la
Ley, 40. See Year, Day, and Waste.
AMOUNT TO. To reach in the aggregate, to rise
to or reach by accumulation of particular sums or
quantities. Peabody v. Forest Preserve District
of Cook County, 320 Ill. 454, 151 N.E. 271, 274.
AMOVE. To remove from a post or station. 3
C.J.S. p. 1059.
AMOVEAS MANUS. Lat. That you remove your
hands.
After office found, the king was entitled to the things
forfeited, either lands or personal property; the remedy
for a person aggrieved was by "petition," or "monstrans
de droit," or "traverses," to establish his superior right.
Thereupon a writ issued, quod manus domini regis amoveantur. 3 Bl.Comm. 260.
AMPARO. In Spanish-American law, a document
issued to a claimant of land as a protection to
him, until a survey can be ordered, and the title
of possession issued by an authorized commissioner. Trimble v. Smither's Adm'r, 1 Tex. 790.
ANACRISIS. In the civil law, an investigation
of truth, interrogation of witnesses, and inquiry
made into any fact, especially by torture.
ANAESTHESIA. In medical jurisprudence. (1)
Loss of sensation, or insensibility to pain, general
or local, induced by the administration or application of certain drugs such as ether, nitrous oxide
gas, or cocaine. (2) Defect of sensation, or more
or less complete insensibility to pain, existing in
various parts of the body as a result of certain
diseases of the nervous system.
ANAGRAPH. A register, inventory, or commentary.
ANALOGOUS. Derived from the Greek ana, up,
and logos, ratio. Means bearing some resem-
109
ANALOGOUS
blance. Irving v. Kerlow Steel Flooring Co., D.C.
N.J., 25 F.Supp. 901, 902.
If elements and purposes of one art are so related and
similar to those of another as to make an appeal to one
skilled in such art, the two arts are "analogous". Copeman Laboratories Co. v. General Plastics Corp., C.C.A.Ill.,
149 F.2d 962, 963.
ANALOGY. In logic. Identity or similarity of
proportion.
Where there is no precedent in point, in cases on the
same subject, lawyers have recourse to cases on a different
subject-matter, but governed by the same general principle. This is reasoning by analogy. Wharton.
The similitude of relations which exist between things
compared. See Smith v. State, 63 Ala. 58.
"Analogy" does not mean identity, but implies a difference. Sturm v. Ulrich, C.C.A.Okl., 10 F.2d 9, 11.
ANALYTICAL JURISPRUDENCE. A theory
and system of jurisprudence wrought out neither
by inquiring for ethical principles or the dictates
of the sentiments of justice nor by the rules which
may be actually in force, but by analyzing, classifying and comparing various legal conceptions.
See Jurisprudence.
ANAPHRODISIA. In medical jurisprudence, impotentia cceundi; frigidity; incapacity for sexual
intercourse existing in' either man or woman, and
in the latter case sometimes called "dyspareunia."
ANARCHIST. One who professes and advocates
the doctrines of anarchy, q. v. And see Cerveny
v. Chicago Daily News Co., 139 Ill. 345, 28 N.E.
692, 13 L.R.A. 864. In the immigration statutes, it
includes, not only persons who advocate the overthrow of organized government by force, but also
those who believe in the absence of government
as a political ideal, and seek the same end through
propaganda. Ex parte Caminita, D.C.N.Y., 291 F.
913, 915.
ANARCHY. Absence of government; state of
society where there is no law or supreme power;
lawlessness or political disorder; destructive of
and confusion in, government. People v. Mintz,
106 Cal.App. 725, 290 P. 93, 98.
At its best it pertains to a society made orderly by good
manners rather than law, in which each person produces
according to his powers and receives according to his
needs, and at its worst, the word pertains to a terroristic
resistance of all present government and social order.
State v. Schleifer, 102 Conn. 708, 130 A. 184, 188.
Criminal anarchy as the doctrine that organized government should be overthrown by force, or by assassination
of executive officers, or by any unlawful means. See People v. Gitlow, 183 N.Y.S. 846, 847, 111 Misc.Rep. 641, and
15 Rep. Am. Bar Assn. 210.
ANATHEMA. An ecclesiastical punishment by
which a person is separated from the body of the
church, and forbidden all intercourse with the
members of the same.
It differs from excommunication, which simply
forbids the person excommunicated from going
into the church and taking the communion with
the faithful.
ANATOCISM. In the civil law, repeated or doubled interest; compound interest; usury. Cod. 4,
3 2, 1, 30.
ANCESTOR. One from whom a person lineally
descended or may be descended; a progenitor.
Russell v. Roberts, 54 Ohio App. 441, 7 N.E.2d 811,
814.
A former possessor; the person last seised.
Termes de la Ley; 2 Bl.Comm. 201. A deceased
person from whom another has inherited land.
Bailey v. Bailey, 25 Mich. 185; McCarthy v.
Marsh, 5 N.Y. 275.
For example, a child may be the "ancestor" of his parent, and an infant brother, the "ancestor" of an adult
brother. Embraces collaterals as well as lineals. Purcell
v. Sewell, 223 Ala. 73, 134 So. 476, 480. Correlative of
"heir." In re Long's Estate, 180 Okl. 28, 67 P.2d 41, 43,
110 A.L.R. 1002.
The term differs from "predecessor," in that it is applied
to a natural person and his progenitors, while the latter is
applied also to a corporation and those who have held
offices before those who now fill them. Co. Litt. 78b.
"Ancestor" may embrace both lineals and collaterals, Cornell v. Child, 170 App.Div. 240, 156 N.Y.S. 449, 452, or both
testator and testatrix, Pfaffenberger v. Pfaffenberger, 189
Ind. 507, 127 N.E. 766, 767; it may also be limited to mean
i mmediate ancestor, In re Simpson's Estate, Sur., 144
N.Y.S. 1099, 1101.
ANCESTRAL. Relating to ancestors, or to what
has been done by them; as homage ancestral
(q. v.). Derived from ancestors.
Ancestral estates are such as are transmitted by descent,
and not by purchase. 4 Kent, Comm. 404. Brown v.
Whaley, 58 Ohio St. 654, 49 N.E. 479, 65 Am.St.Rep. 793.
Or such as are acquired either by descent or by operation
of law. Gray v. Chapman, 122 Okl. 130, 243 P. 522, 525.
Realty which came to the intestate by descent or devise
from a now dead ancestor or by deed of actual gift from
a living one, there being no other consideration than that
of blood. In re Long's Estate, 180 Okl. 28, 67 P.2d 41, 50,
110 A.L.R. 1002. Real estate coming to distributee by
descent, gift, or devise from any kinsman. Ward v. Ives,
91 Conn. 12, 98 A. 337, 339. Allotments to members of
Indian tribes or their heirs have been treated as an ancestral estate. Sims v. Brown, 46 Okl. 767, 149 P. 876, 877;
McDougal v. McKay, 237 U.S. 372, 35 S.Ct. 605, 607, 59
L.Ed. 1001.
ANCHOR. A measure containing ten gallons.
The instrument used by which a vessel or other
body is held. See Walsh v. Dock Co., 77 N.Y.
448; Reid v. Ins. Co., 19 Hun, N.Y., 284.
ANCHOR WATCH. A watch, consisting of a
small number of men, (from one to four,) kept
constantly on deck while the vessel is riding at
single anchor, to see that the stoppers, painters,
cables, and buoy-ropes are ready for immediate
use. The Lady Franklin, 2 Lowell, 220, Fed.Cas.
No.7,984. The lookout intrusted to one or two
men when a vessel is at anchor. O'Hara v. Luckenbach S. S. Co., 269 U.S. 364, 46 S.Ct. 157, 160,
70 L.Ed. 313.
ANCHORAGE. In English law, a prestation or
toll for every anchor cast from a ship in a port;
and sometimes, though there be no anchor. Hale,
ANATHEMATIZE. To pronounce anathema upde Jure Mar. pt. 2, c. 6. See 1 W.B1. 413 et seq.;
on; to pronounce accursed by ecclesiastical au4 Term. 262.
thority; to excommunicate. See Anathema.
110
ANCILLARY
ANCIENT. Old; that which has existed from an
indefinitely early period, or which by age alone
has acquired certain rights or privileges accorded
in view of long continuance.
use but at same time creating private easements
in the street, which cannot be taken without compensation. Dwornick v. State, 251 App.Div. 675,
297 N.Y.S. 409, 411.
ANCIENT DEED. A deed 30 years old and shown
to come from a proper custody and having nothing suspicious about it. Davis v. Wood, 161 Mo.
17, 61 S.W. 695.
ANCIENT WALL. A wall built to be used, and
in fact used, as a party-wall, for more than twenty years, by the express permission and continuous acquiescence of the owners of the land on
which it stands. Eno v. Del Vecchio, 4 Duer, N.
Y., 53, 63. Schneider v. 44-84 Realty Corporation, 169 Misc. 249, 7 N.Y.S.2d 305, 309.
ANCIENT DEMESNE. Manors which in the time
of William the Conqueror were in the hands of
the crown, and are so recorded in the Domesday
Book. Fitzh.Nat.Brev. 14, 56; Baker v. Wich, 1
Salk. 56.
Also a species of copyhold, which differs, however, from common copyholds in certain privileges, but yet must be conveyed by surrender, according to the custom of the manor.
ANCIENT WATER COURSE. A water course is
"ancient" if the channel through which it naturally runs has existed from time immemorial independent of the quantity of water which it discharges. Earl v. De Hart, 12 N.J.Eq. 280, 72 Am.
Dec. 395.
There are three sorts : (1) Where the lands are held
freely by the king's grant; (2) customary freeholds, which
are held of a manor in ancient demesne, but not at the
lord's will, although they are conveyed by surrender, or
deed and admittance; (3) lands held by copy of court-roll
at the lord's will, denominated copyholds of base tenure.
ANCIENT WRITINGS. Documents bearing on
their face every evidence of age and authenticity,
of age of 30 years, and coming from a natural and
reasonable official custody. Hartzell v. U. S., C.
C.A.Iowa, 72 F.2d 569, 579.
Tenure in ancient demesne may be pleaded in abatement to an action of ejectment. Rust v. Roe, 2 Burr. 1046.
These are presumed to be genuine without express
proof, when coming from the proper custody. Jones v.
Scranton Coal Co., 274 Pa. 312, 118 A. 219. Bonds more
than 50 years old are admissible as ancient documents,
where they are on their face free from suspicion as to
their authenticity, come from the proper source, and are
accompanied by some corroborating evidence. Smythe v.
Inhabitants of New Providence Tp., Union County, N. J.,
C.C.A.N.J., 263 F. 481. Only the original copy of a deed,
not the record copy, can be considered as an ancient document. Laclede Land & Improvement Co. v. Goodno, Mo.
Sup., 181 S.W. 410, 413.
ANCIENT DOCUMENTS. See Ancient Writings.
ANCIENT HOUSE. One which has stood long
enough to acquire an easement of support against
the adjoining land or building. 3 Kent, Comm.
• 437; 2 Washb.Real Prop. 74, 76.
In England this term is applied to houses or buildings
erected before the time of legal memory, (Cooke, Incl.
Acts, 35, 109,) that is, before the reign of Richard I.,
although practically any house is an ancient messuage if it
was erected before the time of living memory, and its
origin cannot be proved to be modern.
ANCIENT LIGHTS. Lights or windows in a
house, which have been used in their present
state, without molestation or interruption, for
twenty years, and upwards.
To these the owner of the house has a right by prescription or occupancy, so that they cannot be obstructed or
closed by the owner of the adjoining land which they may
overlook. Wright v. Freeman, 5 Har. & J., Md., 477;
Story v. Odin, 12 Mass. 160, 7 Am.Dec. 81.
ANCIENT READINGS. Readings or lectures upon the ancient English statutes, formerly regarded as of great authority in law. Litt. § 481; Co.
Litt. 280.
ANCIENT RECORDS. See Ancient Writings.
ANCIENT RENT. The rent reserved at the time
the lease was made, if the building was not then
under lease. Orby v. Lord Mohun, 2 Vern. 542.
ANCIENT SERJEANT. In English law, the eldest of the queen's serjeants.
ANCIENT STREET. The doctrine is not based
upon fact that streets have existed for a long
time, but is invoked when it appears that common
grantor owning land comprising street in question as well as property in question and other lots
has given deeds to lots bounding them by street,
thereby not only dedicating the street to public
ANCIENTS. In English law, gentlemen of the
inns of court and chancery.
In Gray's Inn the society consists of benchers, ancients,
barristers, and students under the bar; and here the
ancients are of the oldest barristers. In the Middle Temple, those who had passed their readings used to be termed
"ancients." The Inns of Chancery consist of ancients and
students or clerks; from the ancients a principal or treasurer is chosen yearly. Wharton.
The Council of Ancients was the upper Chamber of the
French legislature under the constitution of 1795, consisting of 250, each required to be at least forty years old.
ANCIENTY. Eldership; seniority. Used in the
statute of Ireland, 14 Hen. VIII. Cowell.
ANCILLA. Lat. A handmaid, an auxiliary, a
subordinate. Manley v. Standard Oil Co. of Tex.,
D.C.Tex., 8 F.R.D. 354, 356.
ANCILLARY. Aiding; attendant upon; describing a proceeding attendant upon or which aids
another proceeding considered as principal. In re
Stoddard, 238 N.Y. 147, 144 N.E. 484, 486. Auxiliary or subordinate. Johnson v. Thomas, D.C.
Tex., 16 F.Supp. 1019.
ANCILLARY ADMINISTRATION. Administration in state where decedent has property and
which is other than where decedent was domiciled.
First Nat. Bank v. Blessing, 231 Mo.App. 288, 98
S.W.2d 149, 151.
ANCILLARY ATTACHMENT. One sued out in
aid of an action already brought, its only office
111
ANCILLARY
being to hold the property attached under it for
the satisfaction of the plaintiff's demand. Templeton v. Mason, 107 Tenn. 625, 65 S.W. 25.
ANCILLARY BILL OR SUIT. One growing out
of and auxiliary to another action or suit, either
at law or in equity, such as a bill for disco$ery,
or a proceeding for the enforcement of a judgment, or to set aside fraudulent transfers of property. Coltrane v. Templeton, Va., 45 C.C.A. 328,
106 F. 370. One growing out of a prior suit in
the same court, dependent upon and instituted for
the purpose either of impeaching or enforcing the
judgment or decree in a prior suit. Hume v. New
York, C.C.A.N.Y., 255 F. 488, 491; Caspers v. Watson, C.C.A.I11., 132 F.2d 614, 615.
ANCILLARY JURISDICTION. "Ancillary jurisdiction" of federal court generally involves either
proceedings which are concerned with pleadings,
processes, records or judgments of court in principal case or proceedings which affect property already in court's custody. Cooperative Transit Co.
v. West Penn Electric Co., C.C.A.W.Va., 132 F.2d
720, 723. The ancillary process must be to aid,
enjoin, or regulate original suit and prevent relitigation in other courts of issues heard and adjudged in such suit. O'Brien v. Richtarsic, D.C.
N.Y., 2 F.R.D. 42, 44.
subject matter. While it is said that there Is no exact
synonym of the word in English, it has been defined to
mean "along with", "also", "and also", "as well as", "besides", "together with". Oliver v. Oliver, 286 Ky. 6, 149
S. W.2d 540, 542.
When expression "and/or" is used, that word may be
taken as will best effect the purpose of the parties as
gathered from the contract taken as a whole, or, in other
words, as will best accord with the equity of the situation.
Bobrow v. U. S. Casualty Co., 231 App.Div. 91, 246 N.Y.S.
363, 367.
The symbol "&c" indicates things of like character, with
the things enumerated just before it. Fleck v. Harmstad,
304 Pa. 302, 155 A. 875, 878, 77 A.L.R. 874. It has been recognized as "sanctioned by age and good use." Brown v.
State, 16 Tex.App. 245. And was constantly used by Lord
Coke without a suggestion from any quarter that it is not
English; Berry v. Osborn, 28 N.H. 279.
ANDROCHIA. In old English law, a dairy-woman. Fleta, lib. 2, c. 87.
ANDROGYNUS. A hermaphrodite.
ANDROLEPSY. The taking by one nation of the
citizens or subjects of another, in order to compel
the latter to do justice to the former. Wolffius, §
1164; Moll. de Jure Mar. 26.
ANDROMANIA. Nymphomania. 44 C.J.S. Insane Persons § 2, p. 19.
ANDROPHONOMANIA. Homicidal insanity.
ANCILLARY PROCEEDING. One subordinate to
or in aid of another primary action. Schram v.
Roney, D.C.Mich., 30 F.Supp. 458, 46L
ANECIUS. L. Lat. Spelled also cesnecius, enitius, ceneas, eneyus, Fr. aisne. The eldest-born;
the first-born; senior, as contrasted with the
puis-nó (younger). Spelman.
ANCILLARY RECEIVER. One appointed in aid
of, and in subordination to, a foreign receiver for
purpose of collecting and taking charge of assets,
as of insolvent corporation, in the jurisdiction
where he is appointed. In re Stoddard, 242 N.Y.
148, 151 N.E. 159, 164, 45 A.L.R. 622.
ANEURISM, or ANEURYSM. A sac formed by
the dilatation of the weakened walls of an artery,
usually resulting in a soft pulsating tumor. 3
Words and Phrases, Perm. Ed.
ANEW. To try a case or issue "anew" or "de novo" implies that the case or issue has been heard
before. Gaiser v. Steele, 25 Idaho, 412, 137 P.
889, 890.
ANCIPITIS USUS. Lat. In international law,
of doubtful use; the use of which is doubtful;
that may be used for a civil or peaceful, as well as
military or warlike, purpose. Gro. de Jure B. lib.
3, c. 1, § 5, subd. 3; 1 Kent, Comm. 140.
AND. A conjunction connecting words or phrases
expressing the idea that the latter is to be added
to or taken along with the first. Grand Trunk
Western Ry. Co. v. Thrift Co., 68 Ind.App. 198, 116
N.E. 756, 759. Added to, together with, joined
with, Business Men's Building & Loan Ass'n
v. Tumulty, 13 N.J.Misc. 638, 180 A. 772. As
well as. Porter v. Moores, 4 Heisk., Tenn., 16.
Including. Finch v. Hunter, 148 Ark. 482, 230 S.
W. 553, 554. "And also," Carter v. Keesling, 130
Va. 655, 108 S.E. 708, 713. Sometimes construed
as "or." Land & Lake Ass'n v. Conklin, 182 App.
Div. 546, 170 N.Y.S. 427, 428.
It expresses a general relation or connection, a participa-
ANGARIA. A term used in the Roman law to denote a forced or compulsory service exacted by
the government for public purposes; as a forced
rendition of labor or goods for the public service;
in particular, the right of a public officer to require the service of vehicles or ships. See Dig.
50, 4, 18, 4.
In feudal law, any troublesome or vexatious
personal service paid by the tenant or villein to
his lord. Spelman.
In maritime law, a forced service (onus) imposed on a vessel for public purposes; an impressment of a vessel. Locc. de Jure Mar. lib. 1,
c. 5, §§ 1-6. See Angary, Right Of.
tion or accompaniment in sequence, having no inherent
meaning standing alone but deriving force from what
comes before and after. In its conjunctive sense the word
is used to conjoin words, clauses, or sentences, expressing
the relation of addition or connection, and signifying that
something is to follow in addition to that which proceeds
and its use implies that the connected elements must be
grammatically co-ordinate, as where the elements preceding and succeeding the use of the words refer to the same
ANGARY, RIGHT OF. In international law,
formerly the right ( jus angarice) claimed by a belligerent to seize merchant vessels in the harbors
of the belligerent and to compel them, on payment of freight, to transport troops and supplies
to a designated port. 2 Opp. 446.
At the present day, the right of a belligerent to
appropriate, either for use, or for destruction in
112
AMMO
case of necessity, neutral property temporarily
located in his own territory or in that of the other belligerent. The property may be of any description whatever, provided the appropriation of
it be for military or naval purposes.
ANGEL. An ancient English coin, of the value of
ten shillings sterling. Jacob.
ANGER. A strong passion of the mind excited
by real or supposed injuries; not synonymous
with "heat of passion," "malice," or "rage or resentment," because these are all terms of wider
import and may include anger as an element or as
an incipient stage. Hoffman v. State, 97 Wis. 571,
73 N.W. 51.
ANGILD. In Saxon law, the single value of a
man or other thing; a single weregild (q. v.);
the compensation of a thing according to its
single value or estimation. Spelman. The double
gild or compensation was called "twigild," the
triple, "trigild," etc. Id. See Angylde.
When a crime was committed, before the Conquest, the angild was the money compensation
that the person who had been wronged was entitled to receive. Maitl. Domesday Book & Beyond 274.
ANGINA PECTORIS. Violent paroxysm of pain
arising frequently from some disease of the coronary arteries, and is manifestation of disease
rather than recognized disease in itself. Foster v.
Borough of State College, 124 Pa.Super. 492, 189
A. 786, 789.
ANGLESCHERIA. In old English law, Englishery; the fact of being an Englishman.
ANGLIZE JURA IN OMNI CASU LIBERTATIS
DANT FAVOREM. The laws of England in every
case of liberty are favorable, (favor liberty in all
cases.) Fortes. c. 42.
ANGLICE. In English, a term formerly used in
pleading when a thing is described both in Latin
and English, inserted immediately after the Latin
and as an introduction of the English translation.
ANGLING. Derived from noun "angle," meaning
a fishhook; tackle for catching fish, consisting of
a line, hook, and bait, with or without a rod.
Catching fish by rod, line and hook, or by line and
hook. State v. Mears, 213 Ind. 257, 12 N.E.2d 343,
344.
ANGLO—INDIAN. An Englishman domiciled in
the Indian territory of the British crown.
ANGORA GOAT. A more or less degenerate
goat, known as the "Cape Angora," produced by
breeding the original Angora with the Cape Colony goat, whose hair is shown to be dealt in, used,
and known as mohair, is an "Angora goat" within
the meaning of that expression in Schedule K,
par. 305, Tariff Act of 1913. U. S. v. Beadenkopf
Co., 8 Ct.Cust.App. 283, 284.
App., 161 S.W.2d 995, 1000. Agony, but, as used in
law, particularly mental suffering or distress of
great intensity. Cook v. Railway Co., 19 Mo.App.
334. It is not synonymous with inconvenience, annoyance, or harassment. Western Union Telegraph Co. v. Stewart, Ala.App. 502, 79 So. 200,
201.
ANGYLDE. In Saxon law, the rate fixed by law
at which certain injuries to person or property
were to be paid for; in injuries to the person, it
seems to be equivalent to the "were," i. e., the
price at which every man was valued. It seems
also to have been the fixed price at which cattle
and other goods were received as currency, and
to have been much higher than the market price,
or ceapgild. Wharton. See Angild.
AN'HLOTE. In old English law, a single tribute
or tax, paid according to the custom of the country as scot and lot.
ANIENS, or ANIENT. Null, void, of no force or
effect. Fitzh.Nat.Brev. 214. See Anniented.
ANIMAL. Any animate being which is endowed
with the power of voluntary motion. An animate
being, not human. Bernardine v. City of New
York, 182 Misc. 609, 44 N.Y.S.2d 881, 883.
Domestic animals are tame as distinguished from wild;
living in or near the habitations of man or by habit or
special training in association with man. Thurston v.
Carter, 112 Me. 361, 92 A. 295, L.R.A.1915C, 359.
Domitce are those which have been tamed by man; domestic.
Fera3 naturce are those which still retain their wild nature.
Mansuetce naturce are those gentle or tame by nature,
such as sheep and cows.
ANIMALS OF A BASE NATURE. Animals in
which a right of property may be acquired by reclaiming them from wildness, but which, at common law, by reason of their base nature, are not
regarded as possible subjects of a larceny. 3 Inst.
109; 1 Hale, P.C. 511, 512.
Some animals which are now usually tamed come within
this class, as dogs and cats; and others which, though
wild by nature and often reclaimed by art and industry,
clearly fall within the same rule, as bears, foxes, apes,
monkeys, ferrets, and the like; 1 Hawk.Pl.Cr. 33, § 36; 4
Bla.Com. 236; 2 East, Pl.Cr. 614. See 1 Wms.Saund. 84,
note 2.
ANIMALIA FERA, SI FACTA SINT MANSUETA
ET EX CONSUETUDINE EUNT ET REDEUNT,
VOLANT ET REVOLANT, UT CERVI, CYGNI,
ETC., EO USQUE NOSTRA SUNT, ET ITA INTELLIGUNTUR QUAMDIU HABUERUNT ANIMUM REVERTENDI. Wild animals, if they be
made tame, and are accustomed to go out and return, fly away and fly back, as stags, swans, etc.,
are considered to belong to us so long as they have
the intention of returning to us. 7 Coke, 16.
ANIMO. Lat. With intention, disposition, design,
will. Quo animo, with what intention. Animo
cancellandi, with intention to cancel. 1 Pow.Dev.
603. Furandi, with intention to steal. 4 Bl.Comm.
ANGUISH. Extreme pain of body or mind; ex230; 1 Kent, Comm. 183. Lucrandi, with intention
cruciating distress. Carson v. Thompson, Mo. to gain or profit. 3 Kent, Comm. 357. Manendi,
Black's Law Dictionary Revised 4th Ed.-a
113
ANIMO
with intention to remain. 1 Kent, Comm. 76.
Morandi, with intention to stay, or delay. Republicandi, with intention to republish. 1 Pow.Dev.
609. Revertendi, with intention to return. 2 Bl.
Comm. 392. Revocandi, with intention to revoke.
1 Pow.Dev. 595. Testandi, with intention to make
a will. See Animus and the titles which follow
it.
9 Bulst. 67; Pitm. Prin. & Sur. 26. In order to
give life or effect to an instrument, it is essential
to look to the intention of the individual who executed it.
ANIMUS LUCRANIiI. The intention to make a
gain or profit.
ANIMO ET CORPORE. By the mind, and by the
body; by the intention and by the physical act.
Dig. 50, 17, 153; Id. 41, 2, 3, 1; Fleta, lib. 5, c. 5,
§§ 9, 10
ANIMUS MANENDI. The intention of remaining;
intention to establish a permanent residence. 1
Kent, Comm. 76. This is the point to be settled
in determining the domicile or residence of a
party. Id. 77. See Animus et Factum.
ANIMO FELONICO. With felonious intent. Hob.
134.
ANIMUS MORANDI. The intention to remain,
or to delay.
ANIMUS. Lat. Mind; intention; disposition;
design; will. Animo (q. v.), with the intention or
design. These terms are derived from the civil
law.
ANIMUS POSSIDENDI. The intention of possessing.
ANIMUS QUO. The intent with which.
ANIMUS AD SE OMNE JUS DUCIT. It is to the
intention that all law applies. Law always re-.
gards the intention.
ANIMUS CANCELLANDI. The intention of destroying or canceling, (applied to wills).
ANIMUS RECIPIENDI. The intention of receiving.
ANIMUS RECUPERANDI. The intention of recovering. Locc. de Jure Mar. lib. 2, c. 4, § 10.
ANIMUS REPUBLICANDI. The intention to republish.
ANIMUS CAPIENDI. The intention to take or
capture. 4 C.Rob.Adm. 126, 155.
ANIMUS RESTITUENDI. The intention of restoring. Fleta, lib. 3, c. 2, § 3.
ANIMUS DEDICANDI. The intention of donating
or dedicating.
ANIMUS REVERTENDI. The intention of returning.
ANIMUS DEFAMANDI. The intention of defaming. The phrase expresses the malicious intent
which is essential in every case of verbal injury to
render it the subject of an action for libel or
slander.
A man retains his domicile if he leaves it animo revertendi. In re Miller's Estate, 3 Rawle (Pa.) 312. 24 Am.Dec.
345; 4 B1. Comm. 225; 2 Russ. Crimes, 18; Poph. 42, 52;
4 Coke, 40. Also, a term employed in the civil law, in expressing the rule of ownership in tamed animals.
ANIMUS DERELINQUENDI. The intention of
abandoning. 4 C.Rob.Adm. 216. Rhodes v. Whitehead, 27 Tex. 304, 84 Am.Dec. 631.
ANIMUS DIFFERENDI. The intention of obtaining delay.
ANIMUS REVOCANDI. The intention to revoke.
ANIMUS SIGNANDI. Intention to sign instrument as and for a will. Hamlet v. Hamlet, 183 Va.
453, 32 S.E.2d 729, 732.
ANIMUS TESTANDI. Intention or serious purpose to make will. In re Kemp's Will, Del., 7 W.
W.Harr. 514, 186 A. 890, 894.
ANIMUS DONANDI. The intention of giving. Expressive of the intent to give which is necessary
to constitute a gift.
ANKER. A measure containing ten gallons.
ANIMUS ET FACTUM. To constitute a change
of domicile, there must be an "animus et factum";
the "factum" being a transfer of the bodily presence, and the "animus" the intention of residing
permanently or for indefinite period. Hayward
v. Hayward, 65 Ind.App. 440, 115 N.E. 966, 970.
See Animus Manendi.
ANN. In Scotch law, half a year's stipend, over
and above what is owing for the incumbency, due
to a minister's relict, or child, or next of kin, after
his decease. Whishaw.
ANIMUS ET FACTUS. Intention and act; will
and deed. Used to denote those acts which become effective only when accompanied by a particular intention.
ANIMUS FURANDI. Intent to steal, or to feloniously deprive the owner permanently of his property. Jones v. Commonwealth, 172 Va. 615, 1 S.E.
2d 300, 301.
ANNALES. Lat. Annuals; a title formerly given
to the Year Books.
In old records. Yearlings; cattle of the first
year. Cowell.
ANIMUS HOMINIS EST ANIMA SCRIPT!. The
intention of the party is the soul of the instrument.
ANNA. In East Indian coinage, a piece of money,
the sixteenth part of a rupee.
ANNALS. Masses said in the Romish church for
the space of a year or for any other time, either
for the soul of a person deceased, or for the benefit of a person living, or for both. Aylif. Parerg.
ANNALY. In Scotch law, to alienate; to convey.
114
ANNOYANCE
ANNATES. In ecclesiastical law, first-fruits paid
out of spiritual benefices to the Pope, so called because the value of one year's profit was taken as
their rate.
ANNEX. Derived from the Latin "annectere,"
meaning to tie or bind to. To attach, and often,
specifically, to subjoin. In re Annexation to City
of Easton of Tract of Land in Williams Tp.,
Northampton County, 139 Pa.Super. 146, 11 A.2d
662, 664. To add to; to unite. The word expresses the idea of joining a smaller or subordinate thing with another, larger, or of higher importance. Waterbury Lumber & Coal Co. v. Asterchinsky, 87 Conn. 316, 87 A. 739, 740, Ann.Cas.
1916B, 613. To consolidate, as school districts.
Evans v. Hurlburt, 117 Or. 274, 243 P. 553, 554. To
make an integral part of something larger.
It implies physical connection or physically joined to,
yet physical connection may be dispensed with, and things
may be annexed without being in actual contact, when
reasonably practicable. Elliott Common School Dist. No.
48 v. County Board of School Trustees, Tex.Civ.App., 76
S. W.2d 786, 789.
In the law relating to fixtures, the expression "annexed
to the freehold" means fastened to or connected with it;
mere juxtaposition, or the laying of an object, however
heavy, on the freehold, does not amount to annexation.
Merritt v. Judd, 14 Cal. 64.
ANNEXATION. The act of attaching, adding,
joining, or uniting one thing to another; generally spoken of the connection of a smaller or subordinate thing with a larger or principal thing.
The attaching an illustrative or auxiliary document to
a deposition, pleading, deed, etc., is called "annexing" it.
So the incorporation of newly-acquired territory into the
national domain, as an integral part thereof, is called "annexation," as in the case of the addition of Texas to the
United States.
In the law relating to fixtures: Actual annexation includes every movement by which a chattel can be joined
or united to the freehold. Constructive annexation is the
union of such things as have been holden parcel of the
realty, but which are not actually annexed, fixed, or
fastened to the freehold. Shep.Touch. 469; Amos & F.
Fixt. 2.
Scotch Law
The union of lands to the crown, and declaring
them inalienable. Also the appropriation of the
church-lands by the crown, and the union of lands
lying at a distance from the parish church to
which they belong, to the church of another parish
to which they are contiguous.
ANNI ET TEMPORA. Lat. Years and terms.
An old title of the Year Books.
ANNI NUBILES. A woman's marriageable years.
The age at which a girl becomes by law fit for
marriage; the age of twelve.
ANNICULUS. A child a year old. Calvinus, Lex.
ANNICULUS TRECENTESIMO SEXAGESIMOQUINTO DIE DICITUR, INCIPIENTE PLANE
NON EXACTO DIE, QUIA ANNUM CIVILITER
NON AD MOMENTA TEMPORUM SED AD DIES
NUMERAMUR. We call a child a year old on
the three hundred and sixty-fifth day, when the
day is fairly begun but not ended, because we
calculate the civil year not by moments; but by
days. Dig. 50, 16, 134; Id. 132; Calvin.
ANNIENTED. Made null, abrogated, frustrated,
or brought to nothing. Litt. c. 3, § 74L Cf.
Aniens.
ANNIVERSARY. An annual day, in old ecclesiastical law, set apart in memory of a deceased
person. Also called "year day" or "mind day."
Spelman.
As applied to an insurance policy, "anniversary" means yearly recurring date of the policy,
Mid-Continent Life Ins. Co. v. Skye, 113 Okl. 184,
240 P. 630, 632, or perhaps the date of the delivery
thereof, Jefferson Standard Life Ins. Co. v. Baker,
Tex.Civ.App., 260 S.W. 223, 225.
ANNO DOMINI. In the year of the Lord. Commonly abbreviated A. D. The computation of
time, according to the Christian era, dates from
the birth of Christ.
ANNONA. Barley; corn; grain; food; a yearly
contribution of food, of various kinds, for support.
Annona porcum, acorns; annona frumentum hordeo admixtum, corn and barley mixed; annona panis, bread
without reference to the amount. Du Cange; Spelman,
Gloss. ; Cowell.
The term is used in the old English law, and also in the
civil law quite generally, to denote anything contributed
by one person towards the support of another.
ANNONIE CIVILES. A species of yearly rents
issuing out of certain lands, and payable to certain
monasteries.
ANNOTATIO. In the civil law, the sign-manual
of the emperor; a rescript of the emperor, signed
with his own hand. It is distinguished both from
a rescript and pragmatic sanction, in Cod. 4, 59, 1.
ANNOTATION. A remark, note, or commentary
on some passage of a book, intended to illustrate
its meaning. Webster.
In the civil law, an imperial rescript (see Rescript) signed by the emperor. The answers of
the prince to questions put to him by private persons respecting some doubtful point of law. Also
summoning an absentee. Dig. 1, 5. And the designation of a place of deportation. Dig. 32, 1, 3.
ANNOUNCED. A decision is "announced," preventing nonsuit, when court's conclusion on issue
tried is made known from bench or by any publication, oral or written, even if judgment has not
been rendered. Ex parte Alabama Marble Co.,
216 Ala. 272, 113 So. 240, 242.
ANNOYANCE. Discomfort; vexation. Not synonymous with anguish, inconvenience, or harassment. Western Union Telegraph Co. v. Stewart,
16 Ala.App. 502, 79 So. 200, 201. "Annoyance and
inconvenience" relate as much to physical as to
mental conditions. Chicago, I. & L. Ry. Co. v.
Ader, 184 Ind. 235, 110 N.E. 67, 69. It includes
feeling of imposition and oppression Alabama
Water Service Co. v. Wakefield, 231 Ala. 112, 163
So. 626.
115
ANNUA
ANNUA. NEC DEBITUM JUDEX NON SEPARAT
IPSUM. A judge (or court) does not divide annuities nor debt. 8 Coke, 52; 1 Salk. 36, 65. Debt
and annuity cannot be divided or apportioned by a
court.
ANNUA PENSIONE. An ancient writ to provide
the king's chaplain, if he had no preferment, with
a pension. Reg.Orig. 165, 307.
ANNUAL. Of or pertaining to year; returning
every year; coming or happening yearly. Payne
v. Gypsy Oil Co., 129 Okl. 18, 263 P. 138, 140. Occurring or recurring once in each year; continuing for the period of a year; accruing within
the space of a year; relating to or covering the
events or affairs of a year. State v. McCullough,
3 Nev. 224. Once a year, without signifying what
time in year. Rolerson v. Standard Life Ins. Co.,
Tex.Civ.App., 244 S.W. 845, 846.
ANNUAL AMOUNT. The annual amount of contribution at the rate at which deceased was contributing to support of partial dependents, at the
time of his injury, regardless of whether that rate
had existed for a year or more or for less than a
year. Spreckles Sugar Co. v. Industrial Acc. Commission, 186 Cal. 256, 199 P. 8.
ANNUAL ASSAY. An annual trial of the gold
and silver coins of the United States, to ascertain
whether the standard fineness and weight of the
coinage is maintained. See Rev.St.U.S. § 3547 (31
U.S.C.A. § 363).
ANNUAL AVERAGE EARNINGS. Include both
the earnings from a seasonal occupation and also
the actual earnings for the remainder of the year
from whatever occupation they may have been
received, provided the nonseasonal income is limited to employments of the same class and is measured by the wages of the injured employee, or
those similarly employed, as the facts may require, whenever the feature of nonseasonal employment is involved Dicaro v. Fitzgibbon, 249
App.Div. 38, 291 N.Y.S, 764, 767.
ANNUAL DEPRECIATION. The annual loss, not
restored by current maintenance, which is due to
all the factors causing the ultimate retirement of
the property. These factors embrace wear and
tear, decay, inadequacy, and obsolescence. The
annual loss in service value not restored by current maintenance and incurred in connection with
the consumption or prospective retirement of property in the course of service from causes known
to be in current operation, and whose effect can
be forecast with a reasonable approach to accuracy. State v. Hampton Water Works Co., 91
N.H. 278, 18 A.2d 765, 770.
ANNUAL PENSION. In Scotch law, a yearly
profit or rent.
ANNUAL RENT. In Scotch law, yearly interest
on a loan of money.
term, according to time of year when term commences, and salary must be calculated for year as
a whole. State ex rel. Harvey v. Linville, 318 Mo.
698, 300 S.W. 1066, 1067.
ANNUAL VALUE. The net yearly income derivable from a given piece of property; its fair
rental value for one year, deducting costs and
expenses; the value of its use for a year.
ANNUALLY. In annual order or succession;
yearly, every year, year by year. Upham v. Shattuck, 151 Kan. 966, 101 P.2d 901, 903. At end of
each and every year during a period of time. Patterson v. McNeeley, 16 Ohio St. 348. Imposed
once a year, computed by the year. People ex rel.
Mutual Trust Co. v. Westchester County v. Miller,
177 N.Y. 51, 69 N.E. 124, 125.
ANNUITANT. The recipient of an annuity; one
who is entitled to an annuity.
ANNUITIES OF TIENDS. In Scotch law, annuities of tithes; 10s. out of the boll of tiend wheat,
8s. out of the boll of beer, less out of the boll of
rye, oats, and peas, allowed to the crown yearly
of the tiends not paid to the bishops, or set apart
for other pious uses.
ANNUITY. A yearly payment of money for life
or years. State ex rel. Chamberlain v. Johnstone,
65 N.D. 727, 262 N.W. 193. Or in fee, and chargeable only on the person of the grantor. Co.Litt.
144b. A fixed sum, granted or bequeathed, payable periodically but not necessarily annually.
Wilkin v. Board of Com'rs of Oklahoma County,
77 Okl. 88, 186 P. 474, 475; Fate v. Fate, 295 Ill.
App. 271, 14 N.E.2d 890, 892. A legacy payable by
installments. In re Beach's Estate, 203 N.Y.S.
492, 494, 122 Misc.Rep. 261. Also, the right to
receive such periodical amount. Daniel v. Life
Ins. Co. of Virginia, Tex.Civ.App., 102 S.W.2d
256, 259.
It is distinguished from an "income," in that the latter
is interest or profits to be earned. Grand Rapids Trust
Co. v. Herbst, 220 Mich. 321, 190 N.W. 250, 252. Too, it is
chargeable on the person merely, and so far personalty;
while a rent-charge is something reserved out of realty,
or fixed as a burden upon an estate in land. 2 B1.Comm.
40; Rolle, Abr. 226; Horton v. Cook, 10 Watts (Pa.) 127,
36 Am. Dec. 151.
The contract of annuity Is that by which one party
delivers to another a sum of money, and agrees not to reclaim it so long as the receiver pays the rent agreed upon.
This annuity may be either perpetual or for life. See
Succession of Vidalat, 155 La. 1005, 99 So. 801, 802.
The name of an action, now disused, (L. Lat.
breve de annuo redditu,) which lay for the re-
covery of an annuity. Reg.Orig. 158b; Bract.
fol. 203b; 1 Tidd, Pr. 3.
ANNUITY POLICY. An insurance policy providing for monthly payments to insured to begin at
fixed date and continue through insured's life.
Hamilton v. Penn Mut. Life Ins. Co., 196 Miss. 345,
17 So.2d 278, 280.
ANNUITY-TAX. An impost levied annually in
ANNUAL SALARY. Does not refer to salary by Scotland for the maintenance of the ministers of
religion.
calendar years, but by the years of incumbent's
116
ANSWER
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify;
to abolish; to do away with. Ex parte Mitchell,
123 W.Va. 283, 14 S.E.2d 771, 774. To cancel;
destroy; abrogate. To annul a judgment or
judicial proceeding is to deprive it of all force
and operation, either ab initio or prospectively as
to future transactions. In re Morrow's Estate,
204 Pa. 484, 54 A. 342.
It is not a technical word and there is nothing
which prevents the idea from being expressed in
equivalent words; Woodson v. Skinner, 22 Mo.
24.
ANNULMENT. Act of annulling; act of making
void retrospectively as well as prospectively.
Deihl v. Jones, 170 Tenn. 217, 94 S.W.2d 47, 48.
Action for divorce is distinguished from one for annulment, in that "divorce action" is predicated on valid marriage and decree terminates relationship from date thereof,
while "annulment" destroys existence of void or voidable
marriage and everything appertaining thereto from the
beginning. Wigder v. Wigder, 14 N.J.Misc. 880, 188 A.
235, 236.
ANNULUS. Lat. In old English law, a ring;
the ring of a door. Per haspam vel annulum
hostii exterioris; by the hasp or ring of the outer
door. Fleta, lib. 3, c. 15, § 5.
ANNUS UTILIS. A year made up of available or
serviceable days. Brissonius; Calvin. In the
plural, anni utiles signifies the years during which
a right can be exercised or a prescription grow.
In prescription, the period of incapacity of a minor, etc., was not counted; it was no part of the
anni utiles.
ANNUUS REDITUS. A yearly rent; annuity. 2
Bl.Comm. 41; Reg.Orig. 158b.
ANOMALOUS. Deviating from common rule; irregular; exceptional; abnormal. Palmer v. Palmer, Woolf & Gray, 183 La. 458, 164 So. 245, 247.
Unusual; not conforming to rule, method, or
type.
ANOMALOUS INDORSER. A stranger to a.note,
who indorses it after its execution and delivery
but before maturity, and before it has been indorsed by the payee. Buck v. Hutchins, 45 Minn.
270, 47 N.W. 808.
ANOMALOUS PLEA. One which is partly affirmative and partly negative. Baldwin v. Elizabeth,
42 N.J.Eq. 11, 6 A. 275; Potts v. Potts, N.J.Ch., 42
A. 1055.
ANON., AN., A. Abbreviations for anonymous.
ANNULUS ET BACULUS. (Lat. ring and staff.)
The investiture of a bishop was per annulum et
baculum, by the prince's delivering to the prelate
a ring and pastoral staff, or crozier. 1 Bl.Comm.
378; Spelman.
ANONYMOUS. Nameless; wanting a name or
names. A publication, withholding the name of
the author, is said to be anonymous. An anonymous letter is one that has no name signed. Belk
v. State, 102 Tex.Cr.R. 561, 278 S.W. 842.
ANNUM, DIEM, ET VASTUM. See Year, Day,
and Waste.
Cases are sometimes reported anonymously, i. e., without
giving the names of the parties. Abbreviated to "Anon."
An anonymous society in the Mexican code is one which
has no firm name and is designated by the particular designation of the object of the undertaking.
ANNUS. Lat. In civil and old English law, a
year; the period of three hundred and sixty-five
days. Dig. 40, 7, 4, 5; Calvin.; Bract. fol. 359b.
ANNUS DELIBERANDI. In Scotch law, a year
of deliberating; a year to deliberate. The year
allowed by law to the heir to deliberate whether
he will enter and represent his ancestor. It commences on the death of the ancestor, unless in the
case of a posthumous heir, when the year runs
from his birth. Bell.
ANNUS, DIES, ET VASTUM. In old English law,
year, day, and waste. See Year, Day, and Waste.
ANNUS EST MORA MOTUS QUO SUUM PLANETA PERVOLVAT CIRCULUM. A year is the
duration of the motion by which a planet revolves
through its orbit. Dig. 40, 7, 4, 5; Calvin.; Bract.
359b.
ANNUS ET DIES. A year and a day.
ANNUS INCEPTUS PRO COMPLETO HABETUR. A year begun is held as completed. Tray.
Lat.Max. 45.
ANOTHER. Additional. Harelson v. South San
Joaquin Irr. Dist., 20 Cal.App. 324, 128 P. 1010,
1011. Distinct or different. Hammell v. State,
198 Ind. 45, 152 N.E. 161, 163; Ex parte Lyman,
D.C.Wash., 202 F. 303, 304.
ANOTHER ACTION PENDING. See Auter Action Pendant.
ANOYSANCE. Annoyance; nuisance. Cowell;
Kelham.
ANSEL, ANSUL, or AUNCEL. In old English
law, an ancient mode of weighing by hanging
scales or hooks at either end of a beam or staff,
which, being lifted with one's finger or hand by
the middle, showed the equality or difference between the weight at one end and the thing weighed
at the other. Termes de la Ley, 66.
ANSWER. As a verb, the word denotes an assumption of liability, as to "answer" for the debt
or default of another.
Pleading
ANNUS LUCTUS. The year of mourning. It
was a rule among the Romans, and also the Danes
Strictly speaking, it is a pleading by which deand Saxons, that widows should not marry infra fendant in suit at law endeavors to resist the
annum luctfis, ( within the year of mourning.)
plaintiff's demand by an allegation of facts, either
Cod. 5, 9, 2; 1 Bl.Comm. 457,
denying allegations of plaintiff's complaint or
117
ANSWER
confessing them and alleging new matter in avoidance, which defendant alleges should prevent recovery on facts alleged by plaintiff. In re Herle's
Will, 173 Misc. 879, 19 N.Y.S.2d 263, 265.
In chancery pleading, the term denotes a defense in writing, made by a defendant to the allegations contained in a bill or information filed by
the plaintiff against him.
In pleading, under the Codes of Civil Procedure, the answer is the formal written statement made by a defendant
setting forth the grounds of his defense; corresponding to
what, in actions under the common-law practice is called
the "plea." But as used in a statute providing that defendant must appear and answer the petition, "answer"
refers to any sort of pleading filed by defendant. State ex
rel. Oliver Hast Auction Co. v. Grimm, 197 Mo.App. 566,
196 S.W. 1019, 1021. Cross-complaint. Celina Mut. Casualty Co. v. Baldridge, 213 Ind. 193, 12 N.E.2d 258, 260.
Counterclaim. Long v. Mutual Trust Life Ins. Co., 191
Minn. 163, 253 N.W. 762. Motion to quash service of summons. Phillips v. Manufacturers Trust Co., C.C. A.Idaho,
101 F.2d 723, 727. Objections by contestants to petition for
probate of will. In re Swim's Will, 258 N.Y.S. 458, 144
Misc. 206. Objections to executor's final report. Meier
v. Union Trust Co. of Indianapolis, 93 Ind.App. 457, 176 N.
E. 42, 51. Demurrer. Evans v. Superior Court in and for
Los Angeles County, 14 Cal.App.2d 743, 59 P.2d 159, 160,
contra. Mariner v. Milisich, 45 Nev. 193, 200 P. 478.
In Massachusetts, the term denotes the statement of the
matter intended to be relied upon by the defendant in
avoidance of the plaintiff's action, taking the place of special pleas in bar, and the general issue, except in real and
mixed actions. Pub.St.Mass.1882, p. 1287.
In matrimonial suits in the (English) probate, divorce,
and admiralty division, an answer is the pleading by which
the respondent puts forward his defense to the petition.
Browne, Div. 223.
Under the old admiralty practice in England, the defendant's first pleading was called his "answer." Williams &
B. Adm. Jur. 246.
Frivolous answer. See Sham Answer, infra.
An irrelevant answer is one that has no substantial relation to the controversy;—distinguishable from a sham answer. Rosatti v. Common School Dist. No. 96 of Cass
County, 53 N.D. 268, 205 N.W. 678, 679.
A sham answer is one sufficient on its face but so clearly
false that it presents no real issue to be tried. Bank of
Richards, Mo., v. Sheasgreen, 153 Minn. 363, 190 N.W. 484.
One good in form, but false in fact and not pleaded in
good faith. Burkhalter v. Townsend, 139 S.C. 324, 138 S.E.
34, 36. A frivolous answer, on the other hand, is one
which on its face sets up no defense, although it may be
true in fact.
A voluntary answer, in chancery, was an answer put in
by a defendant, when plaintiff had filed no interrogatories
which required to be answered. Hunt, Eq.
Practice
A reply to interrogatories; an affidavit in answer to interrogatories. The declaration of a fact
by a witness after a question has been put, asking for it.
ANTAPOCHA. In the Roman law, a transcript or
counterpart of the instrument called "apocha" (q.
v.), signed by the debtor and delivered to the
creditor. Calvin.
ANTE. Lat. Before. Usually employed in old
pleadings as expressive of time, as prce (before)
was of place, and coram (before) of person.
Townsh.Pl. 22.
Occurring in a report or a text-book, it is used
to refer the reader to a previous part of the book.
ANTE EXHIBITIONEM BILIJE. Before the exhibition of the bill. Before suit begun.
ANTE-FACT1UM, or ANTE-GESTUM. Done before. A Roman law term for a previous act, or
thing done before.
ANTE JURAMENTUM. See Antejuramentum.
ANTE LITEM MOTAM. At time when declarant
had no motive to distort truth, In re Hayden's
Estate, 176 Misc. 1078, 29 N.Y.S.2d 852, 856. Before suit brought, before controversy instituted.
Also, before the controversy arose. Corbett v.
Hawes, 187 N.C. 653, 122 S.E. 478, 479.
ANTE MORTEM INTEREST. Interests existing
only prior to, and not after, transferor's death.
Cairins v. Martin, 130 N.J.Eq. 313, 22 A.2d 415,
419.
ANTE NATUS. Born before. A person born before another person or before a particular event.
The term is particularly applied to one born In a country
before a revolution, change of government or dynasty, cr
other political event, such that the question of his rights,
status, or allegiance will depend upon the date of his birth
with reference to such event. In England, the term Con,monly denotes one born before the act of un i on with
Scotland; in America, one born before the declaration of
independence. Its opposite is post natus, one born after
the event.
ANTEA. Lat. Formerly; heretofore.
ANTECEDENT. Prior in point of time. Turner
v. State, 84 Tex.Cr.R. 267, 206 S.W. 689.
ANTECEDENT CREDITORS. Those whose debts
are created before the debtor makes a transfer
not lodged for record. Stone v. Keith, 218 Ky.
11, 290 S.W. 1042, 1043.
ANTECESSOR. An ancestor (q. v.).
ANTEDATE. To affix an earlier date; to date an
instrument as of a time before the time it was
written.
ANTEJURAMENTUM. In Saxon law, a preliminary or preparatory oath (called also "prcejuramentum," and "juramentum calumnice," (q. v.),
which both the accuser and accused were required
to make before any trial or purgation; the accuser swearing that he would prosecute the criminal, and the accused making oath on the very day
that he was to undergo the ordeal that he was innocent of the crime with which he was charged.
Whishaw.
ANTENATI. See Ante Natus.
ANTENNA. In wireless telegraphy, the wire in
the air on the tall mast is called the "antenna."
National Electric Signaling Co. v. Telefunken
Wireless Telegraph Co. of United States, C.C.A.
N.Y., 221. F. 629, 631. A wire, or a combination of
wires, supported in the air for directly transmitting electric waves into space, or receiving them
therefrom. Webster, Diet.
ANTENUPTIAL. Made or done before a marriage.
118
ANTICIPATION
ANTENUPTIAL CONTRACT. A contract made
before marriage. Agreement in contemplation of
marriage, Hewett v. Gott, 294 P. 897, 901, 132
Kan. 168, called a marriage contract.
straints and monopolies. U. S. v. Knight Co., 15
S.Ct. 249, 156 U.S. 1, 39 L.Ed. 325; U. S. v. New
York Great Atlantic & Pacific Tea Co., C.C.A.Tex.,
137 F.2d 459. See, also, Restraint of Trade.
ANTENUPTIAL SETTLEMENTS. Contracts or
agreements between a man and woman before
marriage, but in contemplation and generally in
consideration of marriage, whereby the property
rights and interests of either the prospective
husband or wife, or both of them, are determined,
or where property is secured to either or both of
them, or to their children. In re Carnevale's
Will, 248 App.Div. 62, 289 N.Y.S. 185, 188.
Clayton Act. Oct. 15, 1914 as amended, 15 U.S.C.A. §§ 1227, 44 ; 18 U. S. C. A. § 412 ; 28 U. S. C. A. §§ 381-383, 386-390 ;
29 U.S.C.A. § 52.
Sherman Anti-Trust Act, July 2, 1890, as amended, 15 U.
S.C.A. §§ 1-7, 15 note.
ANTHRACITE COAL. "Anthracite coal" differs
from bituminous coal in the amount of fixed
carbon, the amount of volatile matter, color,
luster, and structural character. The percentage
of fixed carbon in anthracite coal is much higher
and the percentage of volatile matter is much
lower than in bituminous coal. Anthracite coal
is hard, compact and is comparatively clean and
free from dust and is commonly termed "hard
coal," and burns with practically no smoke. Commonwealth v. Hudson Coal Co., 287 Pa. 64, 134 A.
413, 414.
ANTHRACNOSE. A disease of watermelons
caused by parasitic fungus capable of puncturing
and invading tissues of rind and sometimes of
pulp within fruit. S. L. Shepard & Co. v. Agwilines, Inc., C.C.A.S.C., 130 F.2d 67, 69.
ANTHRACOSIS. A type of pneumoconiosis due
to inhalation of coal dust. Allen v. Shell Petroleum Corporation, 146 Kan. 67, 68 P.2d 651, 657.
ANTHRAX. Also called splenic fever, carbuncular fever, malignant pustule, charbon, and woolsorters' disease. An acute, infectious disease of
animals, especially cattle, swine, and sheep, and
transmissible to human beings. Century Dict.;
Bacon v. United States Mut. Acc. Ass'n, 123 N.Y.
304, 25 N.E. 399, 400, 9 L.R.A. 617.
ANTHROPOMETRY. In criminal law and medical jurisprudence. The measurement of the human body; a system of measuring the dimensions
of the human body, both absolutely and in their
proportion to each other, the facial, cranial, and
other angles, the shape and size of the skull, etc.,
for purposes of comparison with corresponding
measurements of other individuals, and serving
for the identification of the subject in cases of
doubtful or disputed identity. It was largely
adopted after its introduction in France in 1883,
but fell into disfavor as being costly and as liable
to error. It has given place to the "finger print"
system devised by Francis Galton. See Bertillon
System.
ANTICHRESIS. In the civil law. A species of
mortgage, or pledge of immovables. An agreement by which the debtor gives to the creditor the
income from the property which he has pledged,
in lieu of the interest on his debt. Guyot, Repert;
Marquise De Portes v. Hurlbut. 44 N.J.Eq. 517, 14
A. 891. It is analogous to the Welsh mortgage of
the common law. In the French law, if the income was more than the interest, the debtor was
entitled to demand an account of the income, and
might claim any excess.
A debtor may give as security for his debt any
immovable which belongs to him, the creditor having the right to enjoy the use of it on account of
the interest due, or of the capital if there is no
interest due; this is called "antichresis." Civ.
Code Mex. art. 1927.
By the law of Louisiana, there are two kinds of
pledges,—the pawn and the antichresis. A pawn
relates to movables, and the antichresis to immovables. The antichresis must be reduced to
writing; and the creditor thereby acquires the
right to the fruits, etc., of the immovables, deducting yearly their proceeds from the interest,
in the first place, and afterwards from the principal of his debt. He is bound to pay taxes on the
property, and keep it in repair, unless the contrary is agreed. The creditor does not become the
proprietor of the property by failure to pay at the
agreed time, and any clause to that effect is void.
He can only sue the debtor, and obtain sentence
for sale of the property. The possession of the
property is, however, by the contract, transferred
to the creditor. La.Civil Code, Arts. 3176-3181;
Livingston v. Story, 11 Pet. 351, 9 L.Ed. 746.
The "antichresis" is an antiquated contract, and
has been resorted to in Louisiana in but a few
instances. Harang v. Ragan, 134 La. 201, 63 So.
875, 877. Essential element of contract, Conklin
v. Caffall, 179 So. 434, 437, 438, 439, 189 La. 301.
ANTICIPATION. Act of doing or taking a thing
before its proper time, Wilmington Trust Co. v.
Wilmington Trust Co., 25 Del.Ch. 193, 15 A.2d 665,
668, 669. To do, take up, or deal with, before another; to preclude or prevent by prior action; to
be before in doing, State ex rel. Todd v. Thomas,
127 Neb. 891, 257 N.W. 265, 96 A.L.R. 1470.
In conveyancing, the act of assigning, charging,
or otherwise dealing with income before it beANTI MANIFESTO. A term used in international
comes due.
law to denote a proclamation or manifesto pubIn patent law, a person is said to have been
lished by one of two belligerent powers, alleging
anticipated when he patents a contrivance already
reasons why the war is defensive on its part.
known within the limits of the country granting
ANTI-TRUST ACTS. Federal and state statutes
the patent. Topliff v. Topliff, 12 S.Ct. 825, 145 U.
to protect trade and commerce from unlawful reS. 156, 36 L.Ed. 658.
119
ANTICIPATION
An unsuccessful attempt to achieve a particular purpose
is not "anticipation". Swan Carburetor Co. v. Nash
Motors Co., D.C.Md., 25 F.Supp. 24, 34. The test being
whether patentee has added anything of value to the sum
of human knowledge, whether he has made the world's
work easier, cheaper, and safer, so that return to prior
art would be a retrogression. Butler v. Burch Plow Co.,
C.C.A.Cal., 23 F.2d 15, 24. But invention is not "anticipated" by accidental, incidental or unintentional use of
some of its features, unless the benefits or ensuing results
from such use are appreciated or recognized. Balaban v.
Polyfoto Corporation, D.C.Del., 47 F.Supp. 472, 477, 478.
In law of negligence, "anticipation" is not confined to expectation. Kenney v. Wong Len, 81
N.H. 427, 128 A. 343, 344. But compare Hardy v.
Missouri Pac. R. Co., C.C.A.Ark., 266 F. 860, 863, 36
A.L.R. 1. It means probability not possibility as
applied to duty to anticipate consequences of
conduct attacked as negligent. Empire Dist. Electrict Co. v. Harris, C.C.A.Mo., 82 F.2d 48, 52.
ANTICIPATORY BREACH OF CONTRACT. See
Breach of Contract.
ANTIGRAPHUS. In Roman law. An officer
whose duty it was to take care of tax money. A
comptroller.
ANTIGRAPHY. A copy or counterpart of a deed.
ANTINOMIA. In Roman law. A real or apparent contradiction or inconsistency in the laws.
Merl. Rêpert. Conflicting laws or provisions of
law; inconsistent or conflicting decisions or cases.
ANTINOMY. A term used in logic and law to
denote a real or apparent inconsistency or conflict between two authorities or propositions;
same as antinomia (q. v.).
ANTIQUA CUSTUMA. In English law. Ancient
custom. An export duty on wool, woelfells, and
leather, imposed during the reign of Edw. I. It
was so called by way of distinction from an increased duty on the same articles, payable by foreign merchants, which was imposed at a later
period of the same reign and was called "custuma
nova." 1 Bl.Comm. 314.
ANTIQUA STATUTA. Also called "Vetera Statuta." English statutes from the time of Richard
I. to Edward III. 1 Reeve, Eng.Law, 227. See
Nova Statuta.
ANTIQUARE. In Roman law. To restore a former law or practice; to reject or vote against a
new law; to prefer the old law. Those who
voted against a proposed law wrote on their ballots the letter "A," the initial of antiquo, I am
for the old law. Calvin.
ANTIQUUM DOMINICUM. In old English law.
Ancient demesne.
ANTITHETARIUS. In old English law. A man
who endeavors to discharge himself of the crime
of which he is accused, by retorting the charge on
the accuser. He differs from an approver in this:
that the latter does not charge the accuser, but
others. Jacob.
ANTRUSTIO. In early feudal law. A confidential
vassal. A term applied to the followers or de-
pendents of the ancient German chiefs, and of the
kings and counts of the Franks. Burrill.
ANUELS LIVRES. L. Fr. The Year Books. Kelham.
ANY. Some; one out of many; an indefinite
number. State v. Pierson, 204 Iowa 837, 216 N.
W. 43, 44. One indiscriminately of whatever kind
or quantity. Federal Deposit Ins. Corporation v.
Winton, C.C.A.Tenn., 131 F.2d 780, 782. One or
some (indefinitely). Slegel v. Siegel, 135 N.J.Eq.
5, 37 A.2d 57, 58. "Any" does not necessarily mean
only one person, but may have reference to more
than one or to many. Doherty v. King, Tex.Civ.
App., 183 S.W.2d 1004, 1007. As a synonym for
"some". Kayser v. Occidental Life Ins. Co. of
California, 234 Iowa 310, 12 N.W.2d 582, 587.
It is often synonymous with "either", State v.
Antonio, 3 Brev. (S.C.) 562; Carr-Lowry Lumber
Co. v. Martin, 144 Miss. 106, 109 So. 849, 850.
And is given the full force of "every" or "all",
Glen Alden Coal Co. v. City of Scranton, 282 Pa45, 127 A. 307, 308; Southern Ry. Co. v. Gaston
County, 200 N.C. 780, 158 S.E. 481. Its generality
may be restricted by the context, Drainage Dist.
No. 1 of Bates County v. Bates County, Mo.Sup.,
216 S.W. 949, 953. Thus, the giving of a right to
do some act "at any time" is commonly construed
as meaning within a reasonable time. Paulson
v. Weeks, 80 Or. 468, 157 P. 590, 592, Ann.Cas.
1918D, 741. And the words "any other" following
the enumeration of particular classes are to be
read as "other such like," and include only others
of like kind or character. Southern Ry. Co. v.
Columbia Compress Co., C.C.A.S.C., 280 F. 344,
348.
ANYTHING. Sometimes used colloquially in the
sense of whatever. Pittsburgh Plate Glass Co. v.
H. Neuer Glass Co., C.C.A.Ohio, 253 F. 161, 164.
AORTA. The large artery of the body, about one
and a half inches in diameter, through which
blood is carried away from heart to be ultimately
distributed to various parts of body. It is composed of three layers, an inner coat called the
"intima," a middle coat called the "media," and
an outer coat called the "adventia." Woelfle
Connecticut Mut. Life Ins. Co. of Hartford, Conn.,
234 Mo.App. 135, 112 S.W.2d 865, 870.
APANAGE. In old French law. A provision of
lands or feudal superiorities assigned by the
kings of France for the maintenance of their
younger sons. An allowance assigned to a prince
of the reigning house for his proper maintenance
out of the public treasury. 1 Hallam, Mid. Ages,
pp. ii, 88; Wharton.
APARTMENT. A part of a house occupied by a
person, while the rest is occupied by another, or
others. As to the meaning of this term, see People v. St. Clair, 38 Cal. 137.
APARTMENT HOTEL. Generally understood to
apply to those houses which contain nonhousekeeping apartments without a kitchen or cooking
120
APICES
The apex of ore vein or lode is ascent along line of its
dip or outcropping, beyond which it extends no further to
surface of land. Brugger v. Lee Yim, 12 Ca1.App.2d 38, 55
P.2d 564, 571.
facilities, wherein the proprietor furnishes a restaurant for feeding the occupants of the different
apartments. Waitt Const. Co. v. Chase, 188 N.Y.
S. 589, 591, 197 App.Div. 327. A covenant prohibiting erection of an "apartment house" does
not prohibit an apartment hotel containing one,
two, and three room suites without kitchens or
kitchenettes. Griswold Realty & Holding Corporation v. West End Avenue & Seventy-Fifth St.
Corporation, 209 N.Y.S. 764, 766, 125 Misc. 30.
APEX JURIS. The summit of the law; a legal
subtlety; a nice or cunning point of law; close
technicality; a rule of law carried to an extreme
point, either of severity or refinement A term
used to denote a stricter application of the rules
of law than is indicated by the phrase summum
jus (q. v.).
APARTMENT HOUSE. A building arranged in
several suites of connecting rooms, each suite
designed for independent housekeeping, but with
certain mechanical conveniences, such as heat,
light, or elevator services, in common to all
families occupying the building. Konick v. Champneys, 108 Wash. 35, 183 P. 75, 77, 6 A.L.R. 459.
Sometimes called a flat or flat house. Lignot v.
Jaekle, 72 N.J.Eq. 233, 65 A. 221. It comes within
the prohibition of a restrictive building covenant
forbidding buildings designed for any purpose
other than a private dwelling house. Taylor v.
Lambert, 279 Pa. 514, 124 A. 169, 170. But it is not
a "hotel." Satterthwait v. Gibbs, 288 Pa. 428, 135
A. 862, 864. A house for two families has been
held to be an "apartment house" within a restrictive covenant. Austin v. Richardson, Tex.Com.
App., 288 S.W. 180, 181.
APEX RULE. In mining law. The mineral laws
of the United States give to the locator of a mining claim on the public domain the whole of every
vein the apex of which lies within his surface
exterior boundaries, or within perpendicular
planes drawn downward indefinitely on the planes
of those boundaries; and he may follow a vein
which thus apexes within his boundaries, on its
dip, although it may so far depart from the perpendicular in its course downward as to extend
outside the vertical side-lines of his location,. but
he may not go beyond his end-lines or vertical
planes drawn downward therefrom. This is called
the apex rule. Rev.St.U.S. § 2322 (30 U.S.C.A. §
26) ; Stewart Mining Co v. Ontario Mining Co.,
23 Idaho, 724, 132 P. 787, 792.
APHASIA. In medical jurisprudence. Loss of the
faculty or power of articulate speech; a condition
in which the patient, while retaining intelligence
and understanding and with the organs of speech
unimpaired, is unable (in "motor aphasia") to
utter articulate words, or unable to vocalize the
particular word which is in his mind and which
he wishes to use, or utters words different from
those he believes himself to be speaking, or (in
"sensory aphasia" or apraxia) is unable to understand spoken or written language. Sensory
aphasia includes word blindness and word deafness, visual and auditory aphasia. Motor aphasia
often includes agraphia, or the inability to write
words of the desired meaning. The seat of the
disease is in the brain, but it is not a form of
insanity.
An "apartment house" is not a hotel, but is a building
used as a dwelling for several families, each living separate
and apart. Peirce v. Kelner, 304 Pa. 509, 156 A. 61, 62. It
is not a number of private dwellings, built one on another,
but a collection of dwellings. A place for housing a number of people grouped in families assigned to different sections in the same structure. Fox v. Sumerson, 338 Pa. 545,
13 A.2d 1, 2.
APARTMENT HOUSE HI—JACKER. One who
takes possession of an insolvent or abandoned
apartment house business, collects as much rent
as possible in advance and pays no bills of any
kind, thus seriously affecting, if not destroying,
the good will of the business Thompson v. Dubois, 215 Cal. 577, 11 P.2d 862, 863.
APATISATIO. An agreement or compact. Du
Cange.
APERTA BREVIA. Open, unsealed writs.
APERTUM FACTUM. An overt act.
APERTURA' TESTAMENTI. In the civil law. A
form of proving a will, by the witnesses acknowledging before a magistrate their having sealed
it.
APEX. The summit or highest point of anything;
the top; e. g., in mining law, "apex of a vein."
See Larkin v. Upton, 12 S.Ct. 614, 144 U.S. 19, 36
L.Ed. 330. An "apex" is all that portion of a
terminal edge of a mineral vein from which the
vein has extension downward in the direction of
the dip. Stewart Mining Co. v. Ontario Mining Co.,
35 S.Ct. 610, 614, 237 U.S. 350, 59 L.Ed. 989. Or
it is the juncture of two dipping limbs of a fissure
vein. Jim Butler Tonopah Mining Co. v. West
End Consol. Mining Co., 38 S.Ct. 574, 576, 247 U.
S. 450, 62 L.Ed. 1207.
APHONIA. In medical jurisprudence. Loss of the
power of articulate speech in consequence of morbid conditions of some of the vocal organs. It
may be incomplete, in which case the patient can
whisper. It is to be distinguished from congenital
dumbness, and from temporary loss of voice
through extreme hoarseness or minor affections
of the vocal cords, as also from aphasia, the latter being a disease of the brain without impairment of the organs of speech.
APICES JURIS NON SUNT JURA [JUS]. Extremities, or mere subtleties of law are not rules
of law [are not law]. Co.Litt. 304b; 10 Coke,
126; Wing.Max. 19, max. 14; Broom, Max. 188.
Legal principles must not be carried to their extreme consequences, regardless of equity and good
sense. Salmond, Jurispr. 639. See Apex Juris.
APICES LITIGANDI. Extremely fine points, or
subtleties of litigation. Nearly equivalent to the
121
APNOEA
modern phrase "sharp practice." "It is unconscionable in a defendant to take advantage of the
apices litigandi, to turn a plaintiff around and
make him pay costs when his demand is just."
Per Lord Mansfield, in 3 Burr. 1243.
APNEA. In medical jurisprudence. Want of
breath; difficulty in breathing; partial or temporary suspension of respiration; specifically, such
difficulty of respiration resulting from over-oxygenation of the blood, and in this distinguished
from "asphyxia" (q. v.), which is a condition resulting from a deficiency of oxygen in the blood
due to suffocation or any serious interference with
normal respiration. The two terms were formerly
(but improperly) used synonymously.
APOCHA (also Apoca). Lat. In the civil law.
A writing acknowledging payments; acquittance.
It differs from acceptilation in this: that acceptilation imports a complete discharge of the
former obligation whether payment be made or
not; apocha, discharge only upon payment being
made. Calvin. See Antapocha.
APOCHIE ONERATORLE. In old commercial
law. Bills of lading.
APOCRISARIUS. In civil law. A messenger;
an ambassador.
In ecclesiastical law. One who answers for
another. An officer whose duty was to carry to
the emperor messages relating to ecclesiastical
matters, and to take back his answer to the petitioners. An officer who gave advice on questions
of ecclesiastical law. An ambassador or legate of
a pope or bishop. Spelman.
A messenger sent to transact ecclesiastical business and
report to his superior ; an officer who had charge of the
treasury of a monastic edifice ; an officer who took charge
of opening and closing the doors. Du Cange ; Spelman ;
Calvinus, Lex.
APOCRISARIUS CANCELLARIUS. In the civil
law. An officer who took charge of the royal seal
and signed royal dispatches.
Called, also, secretarius, consiliarius (from his
giving advice) ; referendarius; a consiliis (from
his acting as counsellor) ; a responsis, or responsalis.
APOGEAN TIDES. When moon is farthest from
earth, its tide-producing power is diminished and
tides at such time exhibit a decreased rise and
fall, and such tides are called "apogean tides."
Miller v. Bay-To-Gulf, 141 Fla. 452, 193 So. 425,
428.
APOGRAPHIA. In civil law. An examination
and enumeration of things possessed; an inventory. Calvinus, Lex.
ment of a minute clot in one of the cerebral
arteries.
The symptoms consist usually of sudden loss of consciousness, muscular relaxation, lividity of the face and
slow stertorous respiration, lasting from a few hours to
several days. Death frequently ensues. If consciousness
returns, there is found paralysis of some of the voluntary
muscles, very frequently of the muscles of the face, arm,
and leg upon one side, giving the symptom of hemiplegia.
There is usually more or less mental impairment, which
presents no uniform character, but varies indefinitely.
By apoplexy is meant a break or rupture of a blood
vessel in the brain, not produced by any external cause.
Robinson v. ./Etna Life Ins. Co., Tex.Com.App., 276 S.W.
900, 902.
APOSTACY (also spelled Apostasy). In English
law. The total renunciation of Christianity, by embracing either a false religion or no religion at all.
This offense can take place only in such as have
once professed the Christian religion. 4 Bl.Comm.
43; 4 Steph.Comm. 231.
APOSTATA. In civil and old English law. An
apostate; a deserter from the faith; one who
has renounced the Christian faith. Cod. 1, 7;
Reg.Orig. 71b.
APOSTATA CAPIENDO. An obsolete English
writ which issued against an apostate, or one
who had violated the rules of his religious order.
It was addressed to the sheriff, and commanded
him to deliver the defendant into the custody of
the abbot or prior. Reg.Orig. 71, 267; Jacob;
Wharton.
APOSTILLE, Appostille. L. Fr. An addition;
a marginal note or observation. Kelham.
APOSTLES. In English admiralty practice. A
term borrowed from the civil law, denoting brief
dismissory letters granted to a party who appeals
from an inferior to a superior court, embodying a
statement of the case and a declaration that the
record will be transmitted.
This term is still sometimes applied in the admiralty courts of the United States to the papers
sent up or transmitted on appeals.
APOSTOLI. In civil law. Certificates of the inferior judge from whom a cause is removed, directed to the superior. Dig. 49, 6. See Apostles.
Those sent as messengers. Spelman, Gloss.
APOSTOLUS. A messenger; an ambassador,
legate, or nuncio. Spelman.
APOTHECA. In the civil law. A repository; a
place of deposit, as of wine, oil, books, etc. Calvin.
APOTHECARY. Any person who keeps a shop
or building where medicines are compounded or
APOPLEXY. In medical jurisprudence. The failprepared according to prescriptions of physicians,
ure of consciousness and suspension of voluntary or where medicines are sold. Com. v. Fuller, 2
motion from suspension of the functions of the
Walk. (Pa.) 550.
cerebrum.
In England and Ireland an apothecary is a memThe group of symptoms arising from rupture
ber of an inferior branch of the medical profesof a minute artery and consequent hemorrhage insion and is licensed by the Apothecaries Company
to the substance of the brain or from the lodgto practice medicine as well as to sell drugs.
122
APPARENT
The term "druggist" properly means one whose occupation is to buy and sell drugs without compounding or preparing them. The term therefore has a much more limited
and restricted meaning than the word "apothecary," and
there is little difficulty in concluding that the term "druggist" may be applied in a technical sense to persons who
buy and sell drugs. State v. Donaldson, 41 Minn. 74, 42 N.
W. 781.
APP. CT. Appellate Court.
APPARATOR. A furnisher or provider. Formerly the sheriff, in England, had charge of certain county affairs and disbursements, in which
capacity he was called "apparator comitatus"
(apparator for the county), and received therefor
a considerable emolument. Cowell.
APPARATUS. An outfit of tools, utensils, or instruments adapted to accomplishment of any
branch of work or for performance of experiment
or operation. McClintock & Irvine Co. v. 'Etna
Explosives Co., 260 Pa. 191, 103 A. 622, 623, Ann.
Cas.1918E, 1078. A group or set of organs concerned in performance of single function. First
State Bank of Perkins v. Pulliam, 112 Okl. 22, 239
P. 595, 596. A generic word of the most comprehensive significance which may mean implements
and an equipment of things provided, and adapted as a means to some end. Bruce v. Sibeck, 25
Cal.App.2d 691, 78 P.2d 741, 743.
As used in statutes granting exemption from
execution, etc., "apparatus" means a complex device or machine designed for the accomplishment
of a special purpose; a complex instrument or appliance, mechanical or chemical, for a specific action or operation; machinery; mechanism; as a
newspaper printing press, Harris v. Townley, Tex.
Civ.App., 161 S.W. 5; or four pool tables, Harris
v. Todd, Tex.Civ.App., 158 S.W 1189; but not a
threshing outfit, Corner v. Powell, Tex.Civ.App.,
189 S.W. 88, 91; nor a well-drilling rig, consisting of boiler, engine, and other parts of complicated machinery, Thresher v. McEvoy, Tex.Civ.
App., 193 S.W. 159, 160. In re Willis, D.C.Tex., 292
F. 872, 873, it was said that the term "apparatus"
is practically synonymous with "tools."
APPAREL. The term is said to derive from two
sources, "apparel" from the Latin "ad," meaning
to, and "par," meaning equal, to point out the
means by which outwardly one keeps even or in
line with his group or class. In re Steimes' Estate, 270 N.Y.S. 339, 150 Misc. 279 (a will case).
APPARENT. That which is obvious, evident, or
manifest; what appears, or has been made manifest; appearing to the eye or mind. Walker v.
John Smith, T., 199 Ala. 514, 74 So. 451, 453; In
respect to facts involved in an appeal or writ of
error, that which is stated in the record. An error discovered by close scrutiny of the entire evidence is not "apparent." Stewart v. McAllister,
Tex.Civ.App., 209 S.W. 704, 706.
"Apparent" means "open to view," "capable of
being easily understood," "evident," "seeming,"
rather than "true" or "real," "synonymous with,"
"likely," "probable," or "obvious" and as meaning
primarily, "capable of being seen or easily seen,"
"open to view," "visible to the eye," "within sight
or view," and, secondarily, "clear or manifest to
the understanding," "plain," "evident," "obvious,"
"known," "palpable," "indubitable," while "indubitable" has been defined as meaning "certain" or
"unquestionable," which is synonymous with
"sure." Stevenson v. State, Del., 1 Terry 268, 8
A.2d 914, 915 (in statute requiring driver to stop
after automobile accident).
The word "apparent" within rule that use of realty must
be apparent to create easement by implication on severance
of unity of ownership of dominant and servient tenements
does not necessarily mean "visible", but means that easement's indicia, careful inspection of which by person ordinarily conversant with subject would disclose such use,
must be plainly visible. Romanchuk v. Plotkin, 215 Minn.
156, 9 N.W.2d 421, 425.
APPARENT AGENCY, See Agency.
APPARENT AUTHORITY. In the law of agency,
such authority as the principal knowingly permits
the agent to assume, or which he holds the agent
out as possessing; such authority as he appears
to have by reason of the actual authority which
he has; such authority as a reasonably prudent
man, using diligence and discretion, in view of the
principal's conduct, would naturally suppose the
agent to possess. Iowa Loan & Trust Co. v. Seaman, 203 Iowa 310, 210 N.W. 937, 940; Kissell v.
Pittsburgh, Ft. W. & C. Ry. Co., 194 Mo.App. 346,
188 S.W. 1118, 1121; Brager v. Levy, 122 Md. 554,
90 A. 102, 104; Atto v. Saunders, 77 N.H. 527, 93
A. 1037, 1039; Campbell Paint & Varnish Co. v.
Ladd Furniture & Carpet Co., Tex.Civ.App., 83
S.W.2d 1095, 1097; Humble Oil & Refining Co. v.
Wood, Tex.Civ.App., 94 S.W.2d 573, 574.
It includes the power to do whatever is usually
done and necessary to be done in order to carry
into effect the principal power conferred. Oliver
v. United States Fidelity & Guaranty Co., 176 N.C.
598, 97 S.E. 490, 491. Such authority as a principal intentionally or by want of ordinary care
causes or allows third person to believe that agent
possesses. Fireman's Fund Indemnity Co. v.
Longshore Beach and Country Club, Inc., 127
Conn. 493, 18 A.2d 347, 349.
It is not actual authority and may often be authority not
actually possessed by agent, but is such as principal holds
agent out as possessing. Northwestern Mut. Life Ins. Co.
v. Steckel, 216 Iowa 1189, 250 N.W. 476; Herbert v. Langhoff, La.App., 164 So. 262, 266.
"Apparent authority" of an agent must be determined
by what the principal does, rather than by acts of the
agent. Grismore v. Consolidated Products Co., 232 Iowa
328, 5 N.W.2d 646, 651.
It must be traceable to the principal and cannot be established solely by acts and conduct of agent, and principal is only liable for the appearance of authority caused by
him. Storms v. United Grain & Millworkers' Union, 64
Ohio App. 19, 27 N.E.2d 781, 783.
APPARENT DANGER. As used with reference
to the doctrine of self-defense in homicide, means
such overt actual demonstration, by conduct and
acts, of a design to take life or do some great
personal injury, as would make the killing apparently necessary to self-preservation. Modesett
v. Emmons, Tex.Com.App., 292 S.W. 855, 856.
Under a statute providing that it shall not be a defense
to an action for injuries to an employee that the dangers
123
APPARENT
inherent or apparent in the employment contributed to
the injury, an "apparent danger" is one the existence of
which the employee has knowl'Aige, actual or constructive.
Standard Steel Car Co. v. Martinecz, 66 Ind.App. 672, 113
N.E. 244, 248.
APPARENT DEFECTS. In a thing sold, are
those which can be discovered by simple inspection. Code La. art. 2497 (Civil Code, § 2521).
See, also, Woolley v. Ablah, 119 Kan. 380, 240 P.
266, 269.
APPARENT EASEMENT. See Easement.
APPARENT HEIR. In English law. One whose
right of inheritance is indefeasible, provided he
outlive the ancestor. 2 Bl.Comm. 208. See, also,
Heir Apparent. In Scotch law. He is the person
to whom the succession has actually opened. He
is so called until his regular entry on the lands
by service or infeftment on a precept of Clare
constat.
APPARENT NECESSITY. In actions under the
Alabama Homicide Act, "apparent necessity"
which will justify killing in self-defense must be
such as to impress a reasonable man of its presence and imminence, and must so impress defendant at the time of the fatal shot. Drummond
v. Drummond, 212 Ala. 242, 102 So. 112, 114.
APPARITIO. In old practice. Appearance; an
appearance. Apparitio in judicio, an appearance
in court. Bract. fol. 344. Post apparitionem, after
appearance. Fleta, lib. 6, c. 10, § 25.
APPARITOR. An officer or messenger employed
to serve the process of the spiritual courts in
England and summon offenders. Cowell.
In the civil law. An officer who waited upon a magistrate or -superior officer, and executed his commands. Calvin.; Cod. 12, 53-57.
APPARLEMENT. In old English law. Resemblance; likelihood; as apparlement of war. St.
2 Rich. II. st. 1, c. 6; Cowell.
APPARURA. In old English law the apparura
were furniture, implements, tackle, or apparel.
Carucarum apparura, plow-tackle. Cowell.
The word "appeal" has no absolutely fixed and definite
meaning but may be used to denote the review by a court
of the action of some board or administrative officer. In re
Determination of Relative Rights to Use of Waters of Deschutes River, 108 P.2d 276, 281, 282, 165 Or. 435. An "appeal" is a creature of statute, not a constitutional or inherent right. Carilli v. Hersey, 303 Mass. 82, 20 N.E.2d 492,
495. It is merely a continuation of original lawsuit. Bowersock v. Missouri Valley Drainage Dist. of Holt County,
237 Mo.App. 346, 168 S.W.2d 479, 481. Patterson v. Old
Dominion Trust Co., 149 Va. 597, 140 S.E. 810, 813. It has
become a term of general application in law, with meaning
depending on statutory provisions respecting appellate prooedure. Cino v. Driscoll, 130 N.J.L. 535, 34 A.2d 6, 8.
Appeal is sometimes used to denote the nature of appellate jurisdiction, as distinguished from original jurisdiction, without any particular regard to the mode by which
a cause is transmitted to a superior jurisdiction. Dorris
Motor Car Co. v. Colburn, 307 Mo. 137, 270 S.W. 339, 346.
"Appeal" has no conclusive meaning, and it is necessary
in each instance to look to the particular act giving an
appeal, to determine powers to be exercised by the appellate court. McCauley v. Imperial Woolen Co., 261 Pa. 312,
104 A. 617, 620.
The fundamental difference between an "appeal" and an
action to "review" is that in the case of appeal the tribunal by which the first determination was made is not a
party to the proceeding to review, while, in an action to
review, the tribunal which made the determination is a
party to the proceeding to review. Milwaukee County v.
Industrial Commission, 228 Wis. 94, 279 N.W. 655, 657, 658.
An "appeal" in equity is a trial de novo. Simmons v..
Stern, C.C.A.N.M., 9 F.2d 256, 259.
"Appeal" may also be used to denote the act of invoking
another judicial forum for the trial. Newell v. Kalamazoo
Circuit Judge, 215 Mich. 153, 183 N.W. 907, 908. See Appealed. As used in statutes authorizing taxpayers or parties to condemnation proceedings to appeal, the term often
has its nontechnical sense meaning to "apply for" or
"ask." Purcell Bank & Trust Co. of Purcell v. Byars, 66
Okl. 70, 167 P. 216, 218.
An "appeal" is a step in a judicial proceeding, and in
legal contemplation there can be no appeal where there has
been no decision by a judicial tribunal. Two things are
essential to an appeal in its proper sense : First, the decision of a judicial tribunal, and, second, a superior court
invested with authority to review the decision of the inferior tribunal. People ex rel. Nelson Bros. Storage &
Furniture Co. v. Fisher, 273 Ill. 228, 25 N.E.2d 785, 787.
"Appeal" differs from trial in that it is a review on original record after that has been made in accordance with
well-recognized principles of judicial procedure. Koukly
v. Weber, 277 N.Y.S. 39, 154 Misc. 659.
In criminal practice. A formal accusation
made by one private person against another of
having committed some heinous crime. 4 Bl.
Comm. 312.
Appeal was also the name given to the proceeding in English law where a person, indicted of
treason or felony, and arraigned for the same,
confessed the fact before plea pleaded, and appealed, or accused others, his accomplices in the
same crime, in order to obtain his pardon. In
this case he was called an "approver" or "prover,"
and the party appealed or accused, the "appellee."
4 BI.Comm. 330. Appeals have been abolished by
statute.
Cross Appeal
Where both parties to a judgment appeal therefrom, the appeal of each is called a "cross-appeal"
as regards that of the other. 3 Steph.Comm. 581.
APPEAL. In civil practice. The complaint to a
superior court of an injustice done or error committed by an inferior one, whose judgment or decision the court above is called upon to correct or
reverse.
The removal of a cause from a court of inferior
to one of superior jurisdiction, for the purpose of
obtaining a review and retrial. Hall v. Kincaid,
64 Ind.App. 103, 115 N.E. 361, 365. Lea County
State Bank v. McCaskey Register Co., 39 N.M.
454, 49 P.2d 577, 579.
In general terms a resort to an upper court or
tribunal. State ex rel. School Dist. No. 8 v. Lensman, 108 Mont. 118, 88 P.2d 63, 65. A rehearing
by a superior court on both law and fact, a process of civil law origin, and the usual and approLegislation
priate mode of review for cases originating in a
The
act
by
which
a member of a legislative
court of equity. Sohland v. Baker, 15 Del.Ch. 431,
body who questions the correctness of a decision
141 A. 277, 283, 58 A.L.R. 693.
124
APPEARANCE
Frequently used in judicial proceedings as
meaning "clear to the comprehension" when applied to matters of opinion or reasoning, and
"satisfactorily or legally known or made known",
when used in reference to facts of evidence.
Blackshear v. Liberty Mut. Ins. Co., 26 S.E.2d 793,
804, 69 Ga.App. 790. Facts "appear" when the
evidence from which facts may be found is introduced, and presumptions disappear when facts
appear. Christiansen v. Hilber, 282 Mich. 403, 276
N.W. 495, 497.
of the presiding officer, or "chair," procures a
vote of the body upon the decision.
Old French Law
A mode of proceeding in the lords' courts, where
a party was dissatisfied with the judgment of the
peers, which was by accusing them of having given a false or malicious judgment, and offering to
make good the charge by the duel or combat.
This was called the "appeal of false judgment."
Montesq. Esprit des Lois, liv. 28, c. 27.
Writ of Error Distinguished
The distinction between an appeal and a writ
of error is that an appeal is a process of civil law
origin, and removes a cause entirely, subjecting
the facts, as well as the law, to a review and revisal; but a writ of error is of common law origin, and it removes nothing for re-examination
but the law. Cunningham v. Neagle, 10 S.Ct. 658,
135 U.S. 1, 34 L.Ed. 55; Buessel v. U. S., C.C.A.
Conn., 258 F. 811, 814. The present tendency is
to ignore the distinction between "writ of error"
and "appeal," and, when found in modern statutes, the meaning given "appeal" must be gathered from the language of the statute itself.
Widgins v. Norfolk & W. Ry. Co., 142 Va. 419, 128
S.E. 516, 518.
APPEAL BOND. The bond given on taking an
appeal, by which the appellant and his sureties
are bound to pay damages and costs if he fails to
prosecute the appeal with effect. Omaha Hotel
Co. v. Kountze, 2 S.Ct. 911, 107 U.S. 378, 27 L.Ed.
609. A general purpose of appeal bonds is to
discourage vexatious and frivolous appeals. State
v. Coletti, 102 Kan. 523, 170 P. 995, 997. To protect those interested in the judgment. Richmond
v. Williamson, 16 Wash.2d 194, 132 P.2d 1031, 1033.
The sole and only purpose of "appeal bond" is to stay
issuance of execution until cause can be passed upon and
disposed of by appellate court. State ex rel. Gnekow v. U.
S. Fidelity & Guaranty Co., Mo.App., 150 S.W.2d 581, 584.
APPEAL IN FORMA PAUPERIS. A privilege
given indigent person to prosecute an appeal, otherwise and independently allowable, without payment of fees and costs incident to such prosecution. Millslagle v. Olson, C.C.A.Neb., 130 F.2d
212, 213. See, also, In Forma Pauperis.
APPEALED. In a sense not strictly technical,
this word may be used to signify the exercise by
a party of the right to remove a litigation from
one forum to another; as where he removes a
suit involving the title to real estate from a justice's court to the common pleas. Lawrence v.
Souther, 8 Metc. (Mass.) 166.
APPEAR. In practice. To be properly before a
court; as a fact or matter of which it can take
notice. To be in evidence; to be proved. "Making it appear and proving are the same thing."
Freem. 53. Coming into court by a party to a
suit, whether plaintiff or defendant. Madison v.
State, 31 Ala.App. 602, 20 So.2d 541, 542; Bennett v. Rodgers, 205 Mo.App. 458, 225 S.W. 101.
See Appearance.
APPEAR OF RECORD. A substitution of trustee
under deed of trust "appears of record" in the
office of the chancery clerk, by being actually
spread at large on the record. King v. Jones, 121
Miss. 319, 83 So. 531.
APPEARANCE. In practice. A coming into
court as party to a suit, whether as plaintiff or
defendant. Stephens v. Ringling, 102 S.C. 333,
86 S.E. 683, 685. The formal proceeding by which a
defendant submits himself to the jurisdiction of
the court. Flint v. Comly, 95 Me. 251, 49 A. 1044.
The voluntary submission to a court's jurisdiction.
Pacilio v. Scarpati, 300 N.Y.S. 473, 478, 165 Misc.
586; Braman v. Braman, 258 N.Y.S. 181, 186, 236
App.Div. 164.
"Appearance" is the act of appearing, coming,
or being in sight, becoming visible or clear to apprehension of the mind, of being known as subject of observation or comprehension, or as a
thing proved, of being obvious or manifest. Hallack & Howard Lumber Co. v. Bagly, 100 Colo.
402, 68 P.2d 442, 443.
Appearance anciently meant an actual coming into court,
either in person or by attorney. Appearance may be made
by the party in person or by his agent. Everett Ry., Light
& Power Co. v. U. S., D.C.Wash., 236 F. 806, 808. But in
criminal cases the personal appearance of the accused in
court is often necessary.
An appearance may be either general or special; the
former is a simple and unqualified or unrestricted submission to the jurisdiction of the court, the latter a submission to the jurisdiction for some specific purpose only, not
for all the purposes of the suit. Louisville & N. R. Co. v.
Industrial Board of Illinois, 282 Ill. 136, 118 N.E. 483, 485.
A special appearance is for the purpose of testing the
sufficiency of service or the jurisdiction of the court; a
general appearance is made where the defendant waives
defects of service and submits to the jurisdiction. State
v. Huller, 23 N.M. 306, 168 P. 528, 534, 1 A.L.R. 170.
An appearance may also be either compulsory or voluntary, the former where it is compelled by process served on
the party, the latter where it is entered by his own will or
consent, without the service of process, though process
may be outstanding. 1 Barb.Ch.Pr. 77. It is said to be
optional when entered by a person who intervenes in the
action to protect his own interests, though not joined as a
party; it occurs in chancery practice, especially in England; conditional, when coupled with conditions as to its
becoming or being taken as a general appearance; gratis,
when made by a party to the action, but before the service
of any process or legal notice to appear ; de bene esse,
when made provisionally or to remain good only upon a
future contingency ; or when designed to permit a party to
a proceeding to refuse to submit his person to the jurisdiction of the court unless it is finally determined that he
has forever waived that right. Farmers Trust Co. v.
Alexander, 334 Pa. 434, 6 A.2d 262, 265; subsequent, when
made by a defendant after an appearance has already been
entered for him by the plaintiff ; corporal, when the person is physically present in court.
An answer constitutes an "appearance." Wieser v.
Richter, 247 Mich. 52, 225 N.W. 542, 543. A party who an-
125
APPEARANCE
swers, consents to a continuance, goes to trial, takes an
appeal, or does any other substantial act in a cause, although he has not been served with summons, is deemed
to have entered his "appearance" unless he objects and
preserves his protests to the jurisdiction of his person.
Robinson v. Bossinger, 195 Ark. 445, 112 S.W.2d 637, 640.
Acts of an attorney in prosecuting an action on behalf of
his client constitute an "appearance." Pacilio v. Scarpati,
300 N.Y.S. 473, 165 Misc. 586.
Appearance by Attorney
This term and "appearance by counsel" are distinctly different, the former being the substitution
of a legal agent for the personal attendance of
the suitor, the latter the attendance of an advocate without whose aid neither the party attending nor his attorney in his stead could safely proceed; and an appearance by attorney does not supersede the appearance by counsel. Mercer v.
Watson, 1 Watts (Pa.) 351. See In re Ford's
Estate, 163 N.Y.S. 960, 98 Misc. 100.
Appearance Day
The day for appearing; that on which the parties are bound to come into court. Cruger v. McCracken (Tex.Civ.App.) 26 S.W. 282. Compare
City of Decatur v. Barteau, 260 Ill. 612, 103 N.E.
601, 602.
Appearance Docket
A docket kept by the clerk of the court, in
which appearances are entered, containing also a
brief abstract of all the proceedings in the cause.
See McAdams v. Windham, 191 Ala. 287, 68 So. 51,
52.
Notice of Appearance
A notice given by defendant to a plaintiff that
he appears in the action in person or by attorney.
APPEARAND HEIR. In Scotch law. An apparent heir. See Heir Apparent.
APPELLANT. The party who takes an appeal
from one court or jurisdiction to another. Used
broadly or nontechnically, the term includes one
who sues out a writ of error. Widgins v. Norfolk
& W. Ry. Co., 142 Va. 419, 128 S.E. 516, 518.
APPELLATE. Pertaining to or having cognizance of appeals and other proceedings for the
judicial review of adjudications.
Word "appellate" has a general meaning, and it has
a specific meaning indicating the distinction between original jurisdiction and appellate jurisdiction. Woodruff v.
Bell, 143 Kan. 110, 53 P.2d 498, 499.
APPELLATE COURT. A court having jurisdiction of appeal and review; a court to which causes are removable by appeal, certiorari, or error;
a reviewing court, and, except in special cases
where original jurisdiction is conferred, not a
"trial court" or court of first instance. Sanborn
v. Pacific Mut. Life Ins. Co., 42 Cal.App.2d 99, 108
P.2d 458, 461; Jackson v. Chesapeake & 0. Ry.
Co., 179 Va. 642, 20 S.E.2d 489, 493.
but only after it has been finally decided by an
inferior court, i. e., the power of review and determination on appeal, writ of error, certiorari,
or other similar process. Jurisdiction on appeal;
jurisdiction to revise or correct the proceedings in
a cause already instituted and acted upon by an
inferior court, or by a tribunal having the attributes of a court. Illinois Cent. R. Co. v. Dodd,
105 Miss. 23, 61 So. 743, 49 L.R.A.,N.S., 565. The
term includes proceedings in error. Miami County v. City of Dayton, 92 Ohio St. 179, 110 N.E. 726,
727.
If court's jurisdiction is appellate, it has no authority to
determine a question in an action originally instituted in
it. Rogers v. Leahy, 296 Ky. 44, 176 S.W.2d 93, 95, 149 A.
L.R. 1267.
Exercise of "appellate jurisdiction" involves power not
only to correct errors in judgment under review, but to
make such disposition of causes as justice may require in
order that a correct principle of decision, arising since
judgment appealed from, and having a bearing upon the
right disposition of the cause, may be passed on by trial
court, whose judgment will be vacated and cause remanded
for further proceeding to that end in proper cases. Yates
v. St. Johns Beach Development Co., 122 Fla. 141, 165 So.
384, 385.
APPELLATIO. Lat. An appeal.
APPELLATOR. An old law term having the
same meaning as "appellant" (q. v.).
In the civil law, the term was applied to the
judge ad quem, or to whom an appeal was taken.
Calvin.
APPELLEE. The party in a cause against whom
an appeal is taken; that is, the party who has
an interest adverse to setting aside or reversing
the judgment. Slayton v. Horsey, 97 Tex. 341, 78
S.W. 919. Sometimes also called the "respondent.
In a nontechnical sense, "appellee" may include a defendant in writ of error. Widgins v. Norfolk & W. Ry.
Co., 142 Va. 419, 128 S.E. 516, 518.
In old English law. Where a person charged with treason or felony pleaded guilty and turned approver or
"king's evidence," and accused another as his accomplice
in the same crime, in order to obtain his own pardon, the
one so accused was called the "appellee." 4 Bl.Comm. 330.
APPELLO. Lat. In the civil law. I appeal.
The form of making an appeal apud acta. Dig.
49, 1, 2.
APPELLOR. In old English law. A criminal
who accuses his accomplices, or who challenges a
jury. See Approver.
APPEND. To add or attach. American Cannel
Coal Co. v. Indiana Cotton Mills, 78 Ind.App.
115, 134 N.E. 891, 893.
APPENDAGE. Something added as an accessory
to or the subordinate part of another thing.
American Cannel Coal Co. v. Indiana Cotton Mills,
78 Ind.App. 115, 134 N.E. 891, 893.
APPELLATE JURISDICTION. The power and
authority to take cognizance of a cause and proceed to its determination, not in its initial stages,
An "appendage" for a schoolhouse includes a well on
the school premises. Schofield v. School Dist. No. 113,
Labette County, 105 Kan. 343, 184 P. 480, 481, 7 A.L.R. 788.
But "appendages" of a railroad do not include Liberty
bonds pledged to indemnify a surety on its appeal bond, or
cash which was not indispensable to enjoyment of the
property nor to its operation. Jackman v. St. Louis & H.
R. Co., 304 Mo. 319, 263 S.W. 230, 231.
126
APPLICATION
27 Cal.App. 571, 150 P. 788, 789; but not, however, to a
station water tank, rope, or scaffold used thereon, by a
painter, McFarland v. Chesapeake & 0. Ry. Co., 177 Ky.
551, 197 S.W. 944, 947; nor to a moving picture machine,
Balcom v. Ellintuch & Yarfitz, 179 App.Div. 548, 166 N.Y.S.
841, 842; nor the steps of a caboose, Cincinnati, N. 0. & T.
P. Ry. Co. v. Goldston, 163 Ky. 42, 173 S.W. 161, 162.
APPENDANT; A thing annexed to or belonging
to another thing and passing with it; a thing of
inheritance belonging to another inheritance
Which is more worthy; as an advowson, common,
etc., which may be appendant to a manor, common of fishing to a freehold, a seat in a church
to a house, etc. It differs from appurtenance, in
that appendant must ever be by prescription, i. e.,
a personal usage for a considerable time, while an
appurtenance may be created at this day; for
if a grant be made to a man and his heirs, of
common in such a moor for his beasts levant or
couchant upon his manor, the commons are appurtenant to the manor, and the grant will pass
them. Meek v. Breckenridge, 29 Ohio St. 648.
See Appurtenance.
APPLICABLE. Fit, suitable, pertinent, or appropriate. Thomas v. City of Huntington, 80 Ind.
App. 476, 141 N.E. 358, 359. Brought into actual
contact with. People v. Buffalo Cold Storage Co.,
185 N.Y.S. 790, 794, 113 Misc. 479.
When a constitution or court declares that the common
law is in force in a particular state so far as it is applicable, it is meant that it must be applicable to the habits and
conditions of the community, as well as in harmony with
the genius, the spirit, and the objects of their institutions.
Wagner v. Bissell, 3 Iowa 402.
When a constitution prohibits the enactment of local or
special laws in all cases where a general law would be applicable, a general law should always be construed to be
applicable, in this sense, where the entire people of the
state have an interest in the subject. But where only a
portion of the people are affected, as in locating a countyseat, it will depend upon the facts and circumstances of
each particular case whether such a law would be applicable. Evans v. Job, 8 Nev. 322.
APPENDITIA. The appendages or appurtenances of an estate or house, dwelling, etc.; thus,
pent-houses are the appenditia domes. Cowell.
APPENDIX. A printed volume, used on an appeal to the English house of lords or privy council, containing the documents and other evidence
presented in the inferior court and referred to in
the cases made by the parties for the appeal.
Answering in some respects to the "paper-book"
or "case" in American practice.
APPLICABLE LOCAL LAW. Term used to determine the persons who come within the term heirs
and is the law which would be used to ascertain
the heirs of the designated ancestor if he had
owned the property and had died intestate. Restatement, Property, § 305e.
APPENSURA. Payment of money by weight instead of by count. Cowell.
APPERTAIN. To belong to; to have relation
to; to be appurtenant to. Chattel mortgages,
Ferguson v. Steen, Tex.Civ.App., 293 S.W. 318,
320; landlord and tenant, State v. Bodden, 166
Wis. 219, 164 N.W. 1009, 1011. To be used in connection with (sales contract), McVeety v. Hayes,
111 Wash. 457, 191 P. 401, 402. See, also, Appurtenance; Appurtenant.
APPLICANT. An applicant, as for letters of
administration, is one who is entitled thereto, and
who files a petition asking that letters be granted.
Jerauld v. Chambers, 44 Cal.App. 771, 187 P.
33.
APPLICARE. Lat. In old English law. To
fasten to; to moor (a vessel). Anciently rendered, "to apply." Hale, de Jure Mar.
APPERTAINING. Connected with in use or occupancy. It does not necessarily import contiguity, as does "adjoining," and is therefore not synonymous with it: Miller v. Mann, 55 Vt. 475, 479.
Peculiar to (sale of goods), Herndon v. Moore, 18
S.C. 339.
APPLICATIO EST VITA REGULIE. Application
is the life of a rule. 2 Bulst. 79.
APPLE CIDER VINEGAR. Vinegar made from
evaporated apples by treating them with a certain
percentage of water squeezed out again as apple
juice. People v. Douglas Packing Co., 236 N.Y. 1,
139 N.E. 759, 760.
APPLIANCE. Refers to machinery and all instruments used in operating it, and is to be distinguished from word "materials," which includes
everything of which anything is made. Things
applied to or used as a means to an end. Roberts v. City of Los Angeles, 61 P.2d 323, 330, 7
Cal.2d 477. An "appliance" is a mechanical
thing, a device or apparatus. One Black Mule v.
State, 204 Ala. 440, 85 So. 749.
The term has been applied to a railroad track, Hines
v. Kelley, Tex.Civ.App., 226 S.W. 493, 496; motor tracks in
a coal mine, Jaggie v. Davis Colliery Co., 75 W.Va. 370, 84
S.E. 941; an automobile, Ross v. Tabor, 53 Cal.App. 605,
200 P. 971, 973; a telephone lineman's safety belt, Boone
v. Lohr, 172 Iowa 440, 154 N.W. 591, 592; and a plank on
which a painting foreman was working, Peterson v. Beck,
APPLICATION. A putting to, placing before, preferring a request or petition to or before a person.
The act of making a request for something. In
re Meyer, 166 N.Y.S. 505, 100 Misc. 587. A written
request to have a certain quantity of land at or
near a certain specified place. Biddle v. Dougal,
5 Bin. (Pa.) 151. A petition. Scott v. Strobach,
49 Ala. 477, 489. Gardner v. Goodner Wholesale
Grocery Co., 113 Tex. 423, 256 S.W. 911, 913. The
use or disposition made of a thing. A bringing
together, in order to ascertain some relation or
establish some connection; as the application of
a rule or principle to a case or fact.
Insurance
The preliminary request, .declaration, or statement made by a party applying for an insurance
policy, such as one on his life, or against fire.
Whipple v. Prudential Ins. Co. of America, 222
N.Y. 30, 118 N.E. 211, 212.
An "application" is no more than proposition to insurance company and must be accepted before there can be
meeting of minds required to form binding contract.
127
APPLICATION
Brouster v. John Hancock Mut. Life Ins. Co., Mo.App.,
171 S.W.2d 775, 777; Kronjaeger v. Travelers Ins. Co., 124
W.Va. 730, 22 S.E.2d 689, 692.
Payments
Appropriation of a payment to some particular
debt; or the determination to which of several
demands a general payment made by a debtor to
his creditor shall be applied.
Mere uncommunicated intention or belief on part of
debtor as to application of payment to creditor is not such
an appropriation as constitutes "application" by him. Delaware Dredging Co. v. Tucker Stevedoring Co., C.C.A.Pa.,
25 F.2d 44, 46.
Purchase Money
The disposition made of the funds received by
a trustee on a sale of real estate held under the
trust.
APPLY. To make a formal request or petition,
usually in writing, to a court, officer, board, or
company, for the granting of some favor, or of
some rule or order, which is within his or their
power or discretion. For example, to apply for
an injunction, for a pardon, for a policy of insurance, or for a receiver. In re Bucyrus Road Machinery Co., C.C.A.Ohio, 10 F.2d 333, 334.
To use or employ for a particular purpose; to
appropriate and devote to a particular use, object,
demand, or subject-matter. Thus, to apply payments to the reduction of interest. Foley v. Hastings, 107 Conn. 9, 139 A. 305, 306. See Appropriate.
To put, use, or refer, as suitable or relative; to
co-ordinate language with a particular subjectmatter; as to apply the words of a statute to a
particular state of facts.
The word "apply" is used in connection with statutes in
two senses. When construing a statute, in describing the
class of persons, things, or functions which are within its
scope; as that the statute does not "apply" to transactions
in interstate commerce. When discussing the use made of
a statute, in referring to the process by which the statute
is made operative; as where the jury is told to "apply"
the statute of limitation if they find that the cause of action arose before a given date. Brandeis, J., dissenting in
Dahnke-Walker Milling Co. v. Bondurant, 42 S.Ct. 106, 110,
n., 257 U.S. 282, 66 L. Ed. 239.
APPOINT. To designate, ordain, prescribe, nominate. People v. Fitzsimmons, 68 N.Y. 519;
Rhodes v. City of Tacoma, 97 Wash. 341, 166 P.
647. To allot, set apart. Heisler v. Robbins, 17
Ariz. 429, 153 P. 771, 772. To fix, constitute, or
ordain, prescribe, settle, also to assign authority
to a particular use, task or office, allot, designated.
Lambach v. Anderson, 228 Iowa 1173, 293 N.W.
505, 510.
"Appoint" is used where exclusive power and authority
is given to one person, officer, or body to name persons
to hold certain offices. State v. Doss, 102 W.Va. 162, 134
S.E. 749. It is usually distinguished from "elect," meaning
to choose by a vote of the qualified voters of the city.
State ex rel. Smith v. Bowman, 184 Mo.App. 549, 170 S.W.
700, 701. But the distinction is not invariably observed.
Schaffner v. Shaw, 191 Iowa 1047, 180 N.W. 853, 854.
APPOINTEE. A person who is appointed or selected for a particular purpose; as the appointee
under a power is the person who is to receive the
benefit of the power.
"Appointed" and "elected" are used interchangeably.
Van Cleve v. Wallace, 216 Minn. 500, 13 N.W.2d 467, 469.
APPOINTMENT. The designation of a person, by
the person or persons having authority therefor,
to discharge the duties of some office or trust.
In re Nicholson's Estate, 104 Colo. 561, 93 P.2d
880, 884. See, also, Power of Appointment.
The exercise of a right to designate the person or persons who are to take the use of real
estate. 2 Washb.Real Prop. 302; Merchants'
Loan & Trust Co. v. Patterson, 308 Ill. 519, 139
N.E. 912, 919. The act of a person in directing
the disposition of property, by limiting a use, or
by substituting a new use for a former one, in
pursuance of a power granted to him for that
purpose by a preceding deed, called a "power of
appointment;" also the deed or other instrument
by which he so conveys. Where the power embraces several permitted objects, and the appointment is made to one or more of them, excluding
others, it is called "exclusive."
Appointment may signify an appropriation of
money to a specific purpose. Harris v. Clark, 3
N.Y. 93, 119, 51 Am.Dec. 352. See Illusory Appointment. It may also mean the arranging of a
meeting. Spears v. State, 89 Tex.Cr.R. 459, 232
S.W. 326, 328.
Office or Public Function
The selection or designation of a person, by the
person or persons having authority therefor, to
fill an office or public function and discharge the
duties of the same. State v. Braman, 173 Wis.
596, 181 N.W. 729, 730.
The term "appointment" is to be distinguished from
"election." The former is an executive act. Election
means that the person is chosen by a principle of selection
in the nature of a vote, participated in by the public generally or by the entire class of persons qualified to express
their choice in this manner. Mono County v. Industrial
Ace. Commission, 175 Cal. 752, 167 P. 377, 378.
"Election" to office usually refers to vote of people,
whereas "appointment" relates to designation by some individual or group. Board of Education of Boyle County v.
McChesney, 235 Ky. 692, 32 S.W.2d 26, 27.
APPOINTOR. The person who appoints, or executes a power of appointment; as appointee is
the person to whom or in whose favor an appointment is made. 1 Steph.Comm. 506, 507; 4 Kent,
Comm. 316.
One authorized by the donor, under the statute
of uses, to execute a power. 2 Bouv.Inst. n. 1923.
The appointor is the instrument of the donor of the
power, and the appointee takes under the original will or
instrument which creates the trust, and not from the donee
of the power. Barret v. Berea College, 48 R.I. 258, 137 A.
145, 147.
APPORT. L. Fr. In old English law. Tax;
tallage; tribute; imposition; payment; charge;
expenses. Kelham.
APPORTION. To divide and distribute proportionally. School Dist. No. 3, Platte County, v.
School Dist. No. 2, Platte County, 29 Wyo. 80,
210 P. 562.
128
APPRAISER
APPORTIONMENT. The division, partition, or
distribution of a subject-matter in proportionate
parts. Hunt v. Callaghan, 32 Ariz. 235, 257 P.
648, 649. The division of rights or liabilities
among several persons entitled or liable to them
in accordance with their respective interests. Valley Nat. Bank of Phoenix v. Apache County, 57
Ariz. 459, 114 P.2d 883, 886.
Contracts
The allowance, in case of a severable contract,
partially performed, of a part of the entire consideration proportioned to the degree in which
the contract was carried out.
Corporate Shares
The pro tanto division among the subscribers
of the shares allowed to be issued by the charter,
where more than the limited number have been
subscribed for. Haight v. Day, 1 Johns.Ch., N.Y.,
18.
Incumbrances
Where several persons are interested in an estate, apportionment, as between them, is the determination of the respective amounts which they
shall contribute towards the removal of the incumbrance.
Rent
The allotment of their shares in a rent to each
of several parties owning it. The determination
of the amount of rent to be paid when the tenancy is terminated at some period other than one of
the regular intervals for the payment of rent.
Gluck v. Baltimore, 81 Md. 315, 32 A. 515, 48 Am.
St.Rep. 515.
Representatives
The determination upon each decennial census
of the number of representatives in congress
which each state shall elect, the calculation being
based upon the population. See Const.U.S. art.
1, § 2; Amend. 14, § 2.
Right of Common
A division of the right of common between several persons, among whom the land to which, as
an entirety, it first belonged has been divided.
Taxes
The apportionment of a tax consists in a selection of the subjects to be taxed, and in laying
down the rule by which to measure the contribution which each of these subjects shall make to
the tax. Barfield v. Gleason, 111 Ky. 491, 63 S.W.
964.
APPORTS EN NATURE. In French law. That
which a partner brings into the partnership other
than cash; for instance, securities, realty or personalty, cattle, stock, or even his personal ability
and knowledge. Argl.Fr.Merc.Law, 545.
APPOSAL OF SHERIFFS. The charging them
with money received upon their account in the
exchequer. St. 22 & 23 Car. IL; Cowell.
APPOSER. An officer in the exchequer, clothed
with the duty of examining the sheriffs in respect
of their accounts. Usually called the "foreign apposer." Termes de la Ley. The office is now
abolished.
APPOSTILLE, or APOSTILLE. In French law,
an addition or annotation made in the margin
of a writing. Merl. Repert.
APPRAISAL. A valuation or an estimation of
value of property by two disinterested persons of
suitable qualifications. Jacobs v. Schmidt, 231
Mich. 200, 203 N.W. 845, 846.
APPRAISE. In practice. To fix or set a price or
value upon; to fix and state the true value of a
thing, and, usually, in writing. Vincent v. German Ins. Co., 120 Iowa, 272, 94 N.W. 458. To value property at what it is worth. Tax Commission
of Ohio v. Clark, 20 Ohio App. 166, 151 N.E. 780,
781.
To "appraise" money means to count. In re
Hollinger's Estate, 259 Pa. 72, 102 A. 409.
APPRAISEMENT. A just and true valuation of
property. A valuation set upon property under
judicial or legislative authority. Cocheco Mfg.
Co. v. Strafford, 51 N.H. 482. A valuation or estimation of the value of property. Littlehead v.
Sheppard, 123 Okl. 29, 251 P. 60, 62.
An "arbitration" presupposes a controversy or
difference to be decided, and the arbitrators proceed in a judicial way. On the other hand, an
appraisal or valuation is generally a mere auxiliary feature of a contract of sale, the purpose of
which is not to adjudicate a controversy but to
avoid one. Thompson v. Newman, 36 Cal.App.
248, 171 P. 982, 983.
APPRAISER. A person appointed by competent
authority to make an appraisement, to ascertain
and state the true value of goods or real estate.
The title of "appraiser" carries with it a significance that he is to be the judge of the evidence he desires submitted to him on the question
of valuation, in cases fairly treated by him. In re
Gibert's Estate, 160 N.Y.S. 213, 214, 96 Misc. 401.
General Appraisers
Appraisers appointed under an act of congress
to afford aid and assistance to the collectors of
customs in the appraisement of imported merchandise. Gibb v. Washington, 10 Fed.Cas. 288.
Merchant Appraisers
Where the appraisement of an invoice of imAPPORTUM. In old English law. The revenue,
ported goods made by the revenue officers at the
profit, or emolument which a thing brings to the
custom house is not satisfactory to the importer,
owner. Commonly applied to a corody or penpersons may be selected (under this name) to
sion. Blount.
make a definitive valuation; they must be merBlack's Law Dictionary Revised 4th Ed.-9
129
APPRECIABLE
chants engaged in trade. Oelberman v. Merritt,
C.C.N.Y., 19 Fed. 408; s. c., 8 Sup.Ct. 151, 123 U.S.
356, 31 L.Ed. 164.
physical ability to exercise his power over the
thing whenever he pleases. One of the requisites
to the acquisition of judicial possession, and by
which, when accompanied by intention, (animus,)
possession is acquired. Mackeld.Rom.Law, §§ 248,
249, 250.
APPRECIABLE. Capable of being estimated,
weighed, judged of, or recognized by the mind;
capable of being perceived or recognized by the
senses; perceptible but not a synonym of substantial. Fisher v. Los Angeles Pacific Co., 21 Cal.
App. 677, 132 P. 767, 769; Stodder v. Rosen Talking Mach. Co., 247 Mass. 60, 141 N:E. 569, 571.
APPRENDRE. A fee or profit taken or received.
Cowell.
APPRENTICE. A person, usually a minor, bound
in due form of law to a master, to learn from him
his art, trade,' or business, and to serve him during
the time of his apprenticeship. 1 Bl.Comm. 426.
City of St. Louis v. Bender, 248 Mo. 113, 154 S.W.
88, 89, 44 L.R.A.,N.S., 1072.
As used in a decree enjoining operation of a cotton oil
mill in such manner as to throw out lint in "appreciable"
quantities, "appreciable" may be practically synonymous
with unreasonable. Buckeye Cotton Oil Co. v. Ragland, C.
C.A.Miss., 11 F.2d 231, 234.
APPRECIATE. To estimate justly; to set a price
or value on. Holmes v. Connell's Estate, 207 Mich.
663, 175 N.W. 148, 149; Brace v. Black, 125 Ill.
33, 17 N.E. 66. When used with reference to the
nature and .effect of an act, "appreciate" may be
synonymous with "know" or "understand." Western Indemnity Co. v. MacKechnie, Tex.Civ.App.,
214 S.W. 456, 460.
APPRECIATION IN VALUE. Appreciation in
the value of property has reference to the socalled unearned increment, and does not include
that added value of the property made by extensions and permanent improvements. People ex
rel. Adirondack Power & Light Corporation v.
Public Service Commission, 193 N.Y.S. 186, 189,
200 App.Div. 268.
APPREHEND. To take hold of, whether with
the mind, and so to conceive, believe, fear, dread,
Trogdon v. State, 133 Ind. 1, 32 N.E. 725; or actually and bodily, and so to take a person on a
criminal process; to seize; to arrest, Hogan v.
Stophlet, 179 Ill. 150, 53 N.E. 604, 44 L.R.A. 809.
To understand. Golden v. State, 25 Ga. 527, 531.
To be conscious or sensible of. Collins v. Liddle,
67 Utah, 242, 247 P. 476, 479.
APPRENTICE EN LA LEY. An ancient name
for students at law, and afterwards applied to
counsellors, apprentici ad barras, from which
comes the more modern word "barrister." In
some of the ancient law-writers the terms apprentice and barrister are synonymous. Co. 2d Inst.
214; Eunomus, Dial. 2, § 53, p. 155.
APPRENTICESHIP. A contract by which one
person, usually a minor, called the "apprentice,"
is bound to another person, called the "master,"
to serve him during a prescribed term of years in
his art, trade, or business, in consideration of
being instructed by the master in such art or
trade, and (commonly) of receiving his support
and maintenance from the master during such
term.
The term during which an apprentice is to
serve.
The status of an apprentice; the relation subsisting between an apprentice and his master.
APPRENTICIUS AD LEGEM. An apprentice to
the law; a law student; a counsellor below the
degree of serjeant; a barrister. See Apprentice
en la Ley.
APPRIZING. In Scotch law. A form of process
by which a creditor formerly took possession of
the estates of the debtor in payment of the debt
due. It is now superseded by adjudications.
APPREHENSIO. Lat. In the civil and old English law. A taking hold of a person or thing;
apprehension; the seizure or capture of a person.
Calvin.
One of the varieties or subordinate forms of
occupatio, or the mode of acquiring title to things
not belonging to any one.
APPROACH. To come nearer in space. Lawrence
v. Goodwill, 44 Cal.App. 440; Weber v. Greenebaum, 270 Pa. 382, 113 A. 413, 414.
'
APPREHENSION.
In Practice
The seizure, taking, or arrest of a person on a
criminal charge. The term "apprehension" is
applied exclusively to criminal cases, and "arrest"
to both criminal and civil cases. People v. Martin, 188 Cal. 281, 205 P. 121, 123, 21 A.L.R. 1399.
Civil Law
/ A physical or corporal act, (corpus,) on the part
V
of one who intends to acquire possession of a
thing, by which he brings himself into such a relation to the thing that he may subject it to his
exclusive control; or by which he obtains the
Thus, an "approaching" street car is one coming near to,
in point of time and place. Ruffin Coal & Transfer Co. v.
Rich, 214 Ala. 622, 108 So. 600, 602.
APPROACH, RIGHT OF. In international law.
The right of a ship of war, upon the high sea, to
draw near to another vessel for the purpose of
ascertaining the nationality of the latter. The
Marianna Flora, 11 Wheat., U.S., 43, 44, 6 L.Ed.
405. Kent understood it to be equivalent to the
right of visit. 1 Kent, Comm. 153. And at present the right of approach has no existence apart
from the right of visit.
APPROACHES. A way, passage, or avenue by
which a place or building can be approached; an
access. State ex rel. Washington Toll Bridge Au-
130
APPROPRIATION
Blaine County Inv. Co. v. Gallet, 35 Idaho, 102,
204 P. 1066, 1067. Authority given by Legislature
to proper officers to apply distinctly specified sum
from designated fund out of treasury in given
year for specified object or demand against state.
State ex rel. Murray v. Carter, 167 Okl. 473, 30
P.2d 700, 702.
thority v. Yelle, 197 Wash. 110, 84 P.2d 688, 691;
State v. Zangerle, 43 Ohio App. 30, 182 N.E. 644,
646.
Comprising the necessary traffic arteries and adjustment
of a bridge to develop its maximum traffic capacity. State
ex rel. Washington Toll Bridge Authority v. Yelle, 197
Wash. 110, 84 P.2d 688, 691, 692, 694; including embankments, grades, or structures of any sort serving as a passage or way. Starrett v. Inhabitants of Town of Thomaston, 126 Me. 205, 137 A. 67, 70. That part of the roadway
which is essential to make the bridge accessible and convenient for public use. With respect to bridge or viaduct;
In re Rosedale Ave. in City of New York, 162 N.Y.S. 877,
885, 175 App.Div. 864.
An element of the definition of "appropriation" is that
the money appropriated be out of the general revenues of
the state. Black and White Taxicab Co. v. Standard Oil
Co., 25 Ariz. 381, 218 P. 139, 144. An "expenditure" is the
expending, a laying out of money, disbursement, and is not
the same as an "appropriation," the setting apart or assignment to a particular person or use. Grout v. Gates,
97 Vt. 434, 124 A. 76, 80; Suppiger v. Eniking, 60 Idaho
292, 91 P.2d 362, 364, 365.
APPROBATE AND REPROBATE. In Scotch law.
To approve and reject; to attempt to take advantage of one part, and reject the rest. Bell.
Equity suffers no person to approbate and reprobate the
same deed. 1 Kames, Eq. 317; 1 Bell, Comm. 146. The
doctrine of approbate and reprobate is the English doctrine
of election.
APPROPRIATE. To make a thing one's own; to
make a thing the subject of property; to exercise
dominion over an object to the extent, and for
the purpose, of making it subserve one's own
proper use or pleasure. People v. Ashworth, 222
N.Y.S. 24, 27, 220 App.Div. 498. To prescribe a
particular use for particular moneys; to designate or destine a fund or property for a distinct
use, or for the payment of a particular demand.
McKenzie Const. Co. v. City of San Antonio, Tex.,
50 S.W.2d 349, 352; Jennings v. Kinsey, 308 Mo.
265, 271 S.W. 786, 787. Also used in the sense of
distribute.
In this sense it may denote the act of an executor or administrator who distributes the estate of his decedent
among the legatees, heirs, or others entitled, in pursuance
of his duties and according to their respective rights; to
take away from one to whom a chattel belongs, and to devote it to the exclusive use and benefit of him who appropriates it. Davis v. Perkins, 178 Ga. 195, 172 S.E. 562, 565;
or properly used in this sense to denote the acquisition of
property and a right of exclusive enjoyment in those things
which before were without an owner or were publics juris.
People v. Lammerts, 164 N.Y. 137, 58 N.E. 22.
APPROPRIATE PROCESS. A subpoena, subpoena duces tecum, or order to appear and produce books and records and testify within
Internal Revenue Code providing that the Commissioner of Internal Revenue may ask the District Court by appropriate process to compel attendance, testimony or production of books, papers or other data. In re Wolrich, D.C.N.Y., 84
F.Supp. 481, 482.
APPROPRIATION. The act of appropriating or
setting apart; prescribing the destination of a
thing; designating the use or application of a
fund. State v. Erickson, 93 Mont. 466, 19 P.2d
227, 229; McKenzie Const. Co. v. City of San Antonio, Tex.Civ.App., 50 S.W.2d 349, 352.
Public Law
The act by which the legislative department of
government designates a particular fund, or sets
apart a specified portion of the public revenue or
of the money in the public treasury, to be applied
to some general object of governmental expenditure, or to some individual purchase or expense.
A specific appropriation is an act of the legislature by which a named sum of money has been
set apart in the treasury, and devoted to the payment of a particular demand. Stratton v. Green,
45 Cal. 149.
Appropriation of land. The act of selecting, devoting, or setting apart land for a particular use
or purpose, as where land is appropriated for public buildings, military reservations, or other public uses. McSorley v. Hill, 2 Wash.St. 638, 27 Pac.
552; Jackson v. Wilcox, 2 Ill. 360. Taking of private property for public use in the exercise of the
power of eminent domain. N. Ward Co. v. Board
of Street Com'rs of City of Boston, 217 Mass. 381,
104 N.E. 965, 966. In this sense it may refer merely to physical occupation and contemplate payment prior thereto, in contra-distinction to "taking," referring to a legal taking and presupposing
payment after damages are due. Keller v. City
of Bridgeport, 101 Conn, 669, 127 A. 508, 511.
Appropriation of payments. The application of
a payment to the discharge of a particular debt.
Thus, if a creditor has two distinct debts due to him
from his debtor, and the latter makes a general payment
on account, without specifying at the time to which debt
he intends the payment to apply, it is optional for the
creditor to appropriate (apply) the payment to either of
the two debts he pleases. Gwin v. McLean, 62 Miss. 121;
Martin v. Draher, 5 Watts (Pa.) 544.
Appropriation of water. An appropriation of
water flowing on the public domain consists in
the capture, impounding, or diversion of it from
its natural course or channel and its actual application to some beneficial use private or personal
to the appropriator, to the entire exclusion (or
exclusion to the extent of the water appropriated)
of all other persons. To constitute a valid appropriation, there must be an intent to apply the
water to some beneficial use existing at the time
or contemplated in the future, a diversion from
the natural channel by means of a ditch or canal,
or some other open physical act of taking possession of the water, and an actual application of it
within a reasonable time to some useful or beneficial purpose. In re Water Rights in Silvies
River, 115 Or. 27, 237 P. 322, 336; In re Manse
Spring and Its Tributaries, Nye County, 60 Nev.
280, 108 P.2d 311, 314; State of Neb. v. State of
Wyo., U.S.Neb. & Wyo., 65 S.Ct. 1332, 1349, 325
U. S. 589, 89 L.Ed. 1815.
It follows water to its original source whether through
surface or subterranean streams or through percolation,
131
APPROPRIATION
Justesen v. Olsen, 40 P.2d 802, 809, 86 Utah 158; and entitles appropriator to continuing right to use water to extent of appropriation, but not beyond that reasonably required and actually used. State of Arizona v. State of
California, Ariz. & Cal., 56 S.Ct. 848, 852, 298 U.S. 558, 80
L.Ed. 1331.
English Ecclesiastical Law
The perpetual annexing of a benefice to some
spiritual corporation either sole or aggregate, being the patron of the living. 1 Bl.Comm. 384;
3 Steph.Comm. 70-75; 1 Crabb, Real Prop. p. 144,
§ 129.
Where the annexation is to the use of a lay person, It is
usually called an "impropriation" (q. v.). 1 Crabb, Real
Prop. p. 145, § 130. There have been no appropriations
since the dissolution of monasteries.
APPROPRIATION BILL. A measure before a
legislative body authorizing the expenditure of
public moneys and stipulating the amount, manner, and purpose of the various items of expenditure. State ex rel. Finnegan v. Dammann, 220
Wis. 143, 264 N.W. 622, 624.
APPROPRIATOR. One who makes an appropriation; as, an appropriator of water. Lux v. Haggin, 69 Cal. 255, 10 Pac. 736.
English Ecclesiastical Law
A ' spiritual corporation entitled to the profits of
a benefice.
APPROVAL. The act of confirming, ratifying,
sanctioning, or consenting to some act or thing
done by another. Rooney v. South Sioux City,
111 Neb. 1, 195 N.W. 474, 475. "Approval" implies
knowledge and exercise of discretion after knowledge. State v. Duckett, 133 S.C. 85, 130 S.E. 340,
342; McCarten v. Sanderson, 111 Mont. 407, 109
P.2d 1108, 1112, 132 A.L.R. 1229.
The act of a judge or magistrate in sanctioning and accepting as satisfactory a bond, security,
or other instrument which is required by law to
pass his inspection and receive his approbation
before it becomes operative.
APPROVE. To be satisfied with; to confirm, ratify, sanction, or consent to some act or thing done
by another; to sanction officially; to ratify; to
confirm; to pronounce good; think or judge well
of; admit the propriety or excellence of; be
pleased with. Western Hospital Ass'n v. Industrial Accident Board, 51 Idaho 334, 6 P.2d 845,
848; MacNeill v. Maddox, 194 Ga. 802, 22 S.E.2d
653, 654; Board of Education of City of Hutchinson v. Reno Community High School, 124 Kan.
175; 257 P. 957, 959; Tibbens v. Clayton, D.C.
Okl., 288 F. 393, 394. Distinguishable from "authorize," meaning to permit a thing to be done in
future. Gray v. Gill, 210 N.Y.S. 658, 660, 125 Misc.
70.
To take to one's proper and separate use. To
i mprove; to enhance the value or profits of anything. To inclose and cultivate common or waste
land.
Old Criminal Law
To accuse or prove; to accuse an accomplice
by giving evidence against him.
APPROVED INDORSED NOTES. Notes indorsed by another person than the maker, for ad..
ditional security, the indorser being satisfactory
to the payee. Mills v. Hunt, 20 Wend., N.Y., 431.
APPROVEMENT. At ancient common law a
practice of criminal prosecutions by which a person accused of treason or felony was permitted
to exonerate himself by accusing others and escaping prosecution himself. Lee v. State, 115
Fla. 30, 155 So. 123; Guthrie v. Commonwealth,
171 Va. 461, 198 S.E. 481, 482, 119 A.L.R. 683.
The custom existed only in capital cases, and consisted in
the accused, called "approver", being arraigned and permitted to confess before plea and appeal or accuse another
as his accomplice of the same crime in order to obtain his
pardon.
APPROVER. L. Fr. To approve or prove; to
vouch. Kelham.
APPROVER. An accomplice in crime who accuses others of the same offense, and is admitted
as a witness at the discretion of the court to give
evidence against his companions in guilt. He is
vulgarly called "King's Evidence."
One who confesses himself guilty of felony
and accuses others of the same crime to save himself from punishment. Myers v. People, 26 Ill.
175. By the old law, if he failed to convict those
he accused he was at once hung. Lee v. State,
115 Fla. 30, 155 So. 123. See, also, Antithetarius.
In old English law. Certain men sent intothe several counties to increase the farms (rents)
of hundreds and wapentakes, which formerly
were let at a certain value to the sheriff. Cowell.
Bailiffs of lords in their franchises. Sheriffs
were called the king's "approvers" in 1 Edw. III,
st. 1, c. 1. Termes de la Ley, 49.
Approvers in the Marches were those who had
license to sell and purchase beasts there.
APPROXIMATE. Used in the sense of an estimate merely, meaning more or less, but about and
near the amount, quantity, or distance specified.
Stockburger v. Brooker, 33 Ga.App. 676, 127 S.E.
663. Near to; about; a little more or less; close.
Texas Employers' Ins. Ass'n v. Fitzgerald, Tex.
Civ.App., 292 S.W. 925, 927. Fiesel v. Bennett, 225
Iowa 98, 280 N.W. 482, 484. "Approximately"
is very nearly synonymous with "proximately,"
P. B. Arnold Co. v. Buchanan, 60 Ind.App. 626,
111 N.E. 204, 207; meaning very nearly, but not
absolutely. Sandberg v. Margold Realty Corporation, 247 N.Y.S. 139, 141, 231 App.Div. 241.
APPROXIMATION. Equitable doctrine by which
precise terms of charitable trust can be varied
under certain circumstances. Heustess v. Huntingdon College, 242 Ala. 272, 5 So.2d 777, 779, 780;
applicable solely to charitable trusts and employed only where on failure of trust the court
To approve common or waste land is to inclose and confinds a general charitable intent. Waterbury
vert it to the purposes of husbandry, which the owner
Trust Co. v. Porter, 131 Conn. 206, 38 A.2d 598,
might always do, provided he left common sufficient for
603.
such as were entitled to it. 3 Kent, Comm. 406.
132
AQUAGIUM
APPRUARE. To take to one's use or profit. Cowell.
APTA VIRO. Fit for a husband; marriageable;
a woman who has reached marriageable years.
APPULSUS. In the civil law. A driving to, as
of cattle to water. Dig. 8, 3, 1, 1.
APUD ACTA. Among the acts; among the recorded proceedings. In the civil law, this phrase
is applied to appeals taken orally, in the presence
of the judge, at the time of judgment or sentence.
Credit Co., Ltd., v. Arkansas Cent. Ry. Co., 9 S.
Ct. 107, 108, 128 U.S. 258, 32 L.Ed. 448.
APPURTENANCE. That which belongs to something else; an adjunct; an appendage; something annexed to another thing more worthy as
principal, and which passes as incident to it, as a
right of way or other easement to land; an outhouse, barn, garden, or orchard, to a house or
messuage. Cohen v. Whitcomb, 142 Minn. 20, 170
N.W. 851, 852; Alwes v. Richheimer, 185 Ark. 535,
47 S.W.2d 1084, 1085; Joplin Waterworks Co. v.
Jasper County, 327 Mo. 964, 38 S.W.2d 1068, 1076.
An article adapted to the use of the property to
which it is connected, and which was intended to
be a permanent accession to the freehold. Szilagy
v. Taylor, 63 Ohio App. 105, 25 N.E.2d 360, 361.
An article may become an "appurtenance to realty"
without physical attachment. Metropolitan Life Ins. Co. v.
Jensen, 69 S.D. 225, 9 N.W.2d 140, 141.
APPURTENANT. Belonging to; accessory or incident to; adjunct, appended, or annexed to; answering to accessorium in the civil law. 2 Steph.
Comm. 30 note. McClintic-Marshall Co. v. Ford.
Motor Co., 254 Mich. 305, 236 N.W. 792, 795; Being employed in leases for the purpose of including any easements or servitudes used or enjoyed
with the demised premises. Riddle V. Littlefield,
53 N.H. 508, 16 Am.Rep. 388.
A thing is "appurtenant" to something else only when
it stands in relation of an incident to a principal, and is
necessarily connected with the use and enjoyment of the
latter. Catterall v. Pulis, 137 Okl. 86, 278 P. 292, 294.
A thing is deemed to be incidental or appurtenant to land
when it is by right used with the land for its benefit, as
in the case of a way, or water-course, or of a passage for
light, air, or heat from or across the land of another. Mattix v. Swepston, 127 Tenn. 693, 155 S.W. 928, 930.
Land cannot be appurtenant to land. Hurley v. Liberty
Lake Co., 112 Wash. 207, 192 P. 4, 5; except in case of
land under water. In re Eastern Boulevard in Borough of
the Bronx, City of New York, 243 N.Y.S. 57, 61, 230 App.
Div. 52.
APRAXIA. See Aphasia.
APROVECHAMEENTO. In Spanish law. Approvement, or improvement and enjoyment of
public lands. As applied to pueblo lands, it has
particular reference to the commons, and includes
not only the actual enjoyment of them but a right
to such enjoyment. Hart v. Burnett, 15 Cal. 530,
566.
APT. Fit; suitable; appropriate.
APT TDIE. Apt time sometimes depends upon
lapse of time; as, where a thing is required to be
done at the first term, or within a given time, it
cannot be done afterwards. But the phrase more
usually refers to the order of proceedings, as fit
or suitable. Holmes Electric Co. v. Carolina
Power & Light Co., 150 S.E. 621, 623, 197 N.C. 766.
AQUA. In the civil and old English law. Water;
sometimes a stream or water-course.
AQUA zrESTIVA. In Roman law. Summer water; water that was used in summer only. Dig.
43, 20, 1, 3, 4.
AQUA CEDIT SOLO. Water follows the land.
A sale of land will pass the water which covers
it. 2 Bl.Comm. 18; Co.Litt. 4.
AQUA CURRENS. Running water.
AQUA CURRIT ET DEBET CURRERE, UT CURRERE SOLEBAT. Water runs, and ought to run,
as it has used to run. A running stream should
be left to flow in its natural channel, without
alteration or diversion, Goble v. Louisville & N. R.
Co., 187 Ga. 243, 200 S.E. 259, 261; that water
is the common and equal property of every one
through whose domain it flows. Elmore v. Ingalls, 17 So.2d 674, 245 Ala. 481.
AQUA DULCIS, or FRISCA. Fresh water. Reg.
Orig. 97; Bract. fols. 117, 135.
AQUA FONTANEA. Spring water. Fleta, lib.
4, c. 27, § 8.
AQUA PROFLUENS. Flowing or running water.
Dig. 1, 8, 2.
AQUA QUOTIDIANA. In Roman law. Daily water; water that might be drawn at all times of
the year, (qua quis quotidie possit uti, si vellet).
Dig. 43, 20, 1-4.
AQUA SALSA. Salt water.
AQUAZE DUCTUS. In the civil law. A servitude
which consists in the right to carry water by
means of pipes or conduits over or through the
estate of another. Dig. 8, 3, 1; Inst. 2, 3.
AQULE HAUSTUS. In the civil law. A servitude
which consists in the right to draw water from
the fountain, pool, or spring of another. Inst. 2,
3, 2; Dig. 8, 3, 1, 1.
AQU)E IMMITTEND1E. A civil law easement
or servitude, consisting in the right of one whose
house is surrounded with other buildings to cast
waste water upon the adjacent roofs or yards.
Similar to the common law easement of drip. Bellows v. Sackett, 15 Barb. (N.Y.) 96.
AQUAGIUM. A canal, ditch, or water course running through marshy grounds. A mark or gauge
APT WORDS. Words proper to produce the legal
placed in or on the banks of a running stream, to
effect for which they are intended; sound techniindicate the height of the water, was called "aquacal phrases.
g au g ium." Spelman.
133
AQUATIC
AQUATIC RIGHTS. Rights which individuals
have to the use of the sea and rivers, for the purpose of fishing and navigation, and also to the
soil in the sea and rivers.
AQUILIAN LAW. See Lex Aquilia,
ARABANT. They plowed. A term of feudal law,
applied to those who held by the tenure of plowing and tilling the lord's lands within the manor.
Cowell.
ARABLE LAND. That which is fit for plowing or
tillage, and thus is distinguishable from swamp
land, which is land that is too wet for cultivation. 6 C.J.S. p. 143; McCarter v. Sooy Oyster
Co., 75 A. 211, 215, 78 N.J.Law, 394.
ARAHO. In feudal law. To make oath in the
church or some other holy place. All oaths were
made in the church upon the relics of saints, according to the Ripuarian laws. Cowell; Spelman.
ARALIA. Plowlands. Land fit for the plow. Denoting the character of land, rather than its condition. Spelman.
ARATOR. A plowman; a farmer of arable land.
ARATRUM TERR)E. In old English law. A plow
of land; a plowland; as much land as could be
tilled with one plow (or by a single "arator" or
plowman). Whishaw.
ARATURA TERRLE. The plowing of land by the
tenant, or vassal, in the service of his lord. Whishaw.
ARATURIA. Land suitable for the plow; arable
land. Spelman.
ARBITER. A person chosen to decide a controversy; an arbitrator, referee. A person bound
to decide according to the rules of law and equity,
as distinguished from an arbitrator, who may
proceed wholly at his own discretion, so that it
be according to the judgment of a sound man.
Cowell.
In the Roman law. A judge invested with a
discretionary power. A person appointed by the
praetor to examine and decide that class of causes
or actions termed "bona fidei," and who had the
power of judging according to the principles of
equity, (ex cequo et bono; ) distinguished from
the judex, ( q. v.,) who was bound to decide according to strict law. Inst. 4, 6, 30, 31.
According to Mr. Abbott, the distinction is as follows:
"Arbitrator" is a technical name of a person selected with
reference to an established system for friendly determination of controversies, which, though not judicial, is yet
regulated by law; so that the powers and duties of the
arbitrator, when once he is chosen, are prescribed by law,
and his doings may be judicially revised if he has exceeded
his authority. "Arbiter" is an untechnical designation of
a person to whom a controversy is referred, irrespective
of any law to govern the decision ; and is the proper word
to signify a referee of a question outside of or above municipal law. But it is elsewhere said that the distinction
between arbiters and arbitrators is not observed in modern
law. Russ.Arb. 112.
in one market and sold in another for the sake
of the profit arising from a difference in price in
the two markets.
ARBITRAMENT. The award or decision of arbitrators upon a matter of dispute, which has
been submitted to them. Termes de la Ley.
ARBITRAMENT AND AWARD. A plea to an action brought for the same cause which had been
submitted to arbitration and on which an award
had been made. Wats.Arb. 256.
ARBITRAMENTUM IEQUUM TRIBUIT CUIQUE
SUUM. A just arbitration renders to every one
his own. Noy, Max. 248.
ARBITRARILY. See Arbitrary.
A finding that certain orders were "arbitrarily" given by
an engineer in charge of a public improvement did not
amount to a finding that they were given in bad faith,
fraudulently, or through ignorance or incompetency. First
Savings & Trust Co. v. Milwaukee County, 158 Wis. 207, 148
N.W. 22, 33.
ARBITRARINESS. Conduct or acts based alone
upon one's will, and not upon any course of reasoning and exercise of judgment. Garman v. Myers, 183 Okl. 141, 80 P.2d 624, 626.
ARBITRARY. Means in an "arbitrary" manner,
as fixed or done capriciously or at pleasure; without adequate determining principle; not founded
in the nature of things; nonrational; not done or
acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic; Cornell v.
Swisher County, Tex.Civ.App., 78 S.W.2d 1072,
1074. Without fair, solid, and substantial cause;
that is, without cause based upon the law. U. S.
v. Lotempio, D.C.N.Y., 58 F.2d 358, 359; not governed by any fixed rules or standard. People ex
rel. Hultman v. Gilchrist, 188 N.Y.S. 61, 65, 114
Misc. 651.
ARBITRARY GOVERNMENT. The difference between a free and an arbitrary government is that
in the former limits are assigned to those to whom
the administration is committed, but the latter
depends on the will of the departments or some
of them. Kamper v. Hawkins, 1 Va.Cas. 20, 23.
ARBITRARY POWER. Power to act according to
one's own will; especially applicable to power
conferred on an administrative officer, who is not
furnished any adequate determining principle.
Fox Film Corporation v. Trumbull, D.C.Conn., 7
F.2d 715, 727.
ARBITRARY PUNISHMENT. That punishment
which is left to the decision of the judge, in distinction from those defined by statute.
ARBITRATION. The submission for determination of disputed matter to private unofficial persons selected in manner provided by law or agreement. Stockwell v. Equitable Fire & Marine Ins.
Co., 25 P.2d 873, 134 Cal.App. 534. The substitution of their award or decision for judgment of
a court. In re Curtis-Castle Arbitration, 64 Conn.
ARBITRAGE. Transactions of bankers and mer501, 30 A. 769, 42 Am.St.Rep. 200; Atlantic Fruit
cantile houses by which stocks or bills are bought
134
ARCHDEACON'S
Co. v. Red Cross Line, D.C.N.Y., 276 F. 319; Red
Cross Line v. Atlantic Fruit Co., 44 S.Ct. 274, 264
U.S. 109, 68 L.Ed. 582.
Compulsory arbitration is that which occurs when the
consent of one of the parties is enforced by statutory provisions. Wood v. City of Seattle, 23 Wash. 1, 62 Pac. 135,
52 L.R.A. 369.
Voluntary arbitration Is by mutual and free consent of
the parties.
The submission is an agreement by which parties agree
to submit their differences to the decision of a referee or
arbitrators. It is sometimes termed a reference. 3 M. &
W. 816; McManus v. McCulloch, 6 Watts (Pa.) 357; Stewart v. Cass, 16 Vt. 663, 42 Am. Dec. 534; Howard v. Sexton, 4 N.Y. 157. As to "final submission," see In re Gitt,
125 N.Y.S. 369, 140 App.Div. 382. In a wide sense, "arbitration" may embrace the whole method of thus settling
controversies, and include all the various steps. But in a
more strict use, the term denotes only the submission and
hearing, the decision being separately spoken of, and called
an "award." An award is the judgment or decision of arbitrators or referees on a matter submitted to them. It is
also the writing containing such judgment. Cowell;
Termes de la Ley; Jenk. 137. See Award.
As distinguished from appraisal, an arbitration presupposes a controversy or a difference to be tried and decided.
On the other hand, an appraisal or valuation is generally a
mere auxiliary feature, as of a contract of sale, the purpose of which is not to adjudicate a controversy but to
avoid one. Toledo S. S. Co. v. Zenith Transp. Co., 184 F.
391, 106 C.C.A. 501.
ARBITRATION CLAUSE. A clause inserted in
a contract providing for compulsory arbitration
in case of dispute as to rights or liabilities under
it; ineffectual if it purports to oust the courts of
jurisdiction entirely. See Perry v. Cobb, 88 Me.
435, 34 A. 278, 49 L.R.A. 389.
ARBITRATION OF EXCHANGE. This takes
place where a merchant pays his debts in one
country by a bill of exchange upon another.
The business of buying and selling exchange (bills of exchange) between two or more countries or markets, and
particularly where the profits of such business are to be
derived from a calculation of the relative value of exchange in the two countries or markets, and by taking advantage of the fact that the rate of exchange may be higher in the one place than in the other at the same time.
ARBITRATOR. A private, disinterested person,
chosen by the parties to a disputed question, for
the purpose of hearing their contention, and giving judgment between them; to whose decision
(award) the litigants submit themselves either
voluntarily, or, in some cases, compulsorily, by
order of a court. Fudickar v. Insurance Co., 62
N.Y. 399.
"Referee" is of frequent modern use as a synonym of
arbitrator, but is in its origin of broader signification and
less accurate than arbitrator.
ARBITRIOS. In Spanish and Mexican law. Taxes imposed by municipalities on certain articles
of merchandise, to defray the general expenses
of government, in default of revenues from "proprios" (q. v.), e., lands owned by the municipality, or the income of which was legally set apart
for its support. Sometimes used in a wider sense,
as meaning the resources of a town, including its
privileges in the royal lands as well as the taxes.
Escriche Dict.; Sheldon v. Milmo, 90 Tex. 1, 36
S.W. 413.
ARBITRIUM. The decision of an arbiter, or arbitrator; an award; a judgment.
ARBITRIUM EST JUDICIUM. An award is a
judgment. Jenk.Cent. 137.
ARBITRIUM EST JUDICIUM BONI VIRI, SECUNDUM )EQUUM ET BONUM. An award is the
judgment of a good man, according to justice. 3
Bulst. 64.
ARBOR. Lat. A tree; a plant; something larger
than an herb; a general term including vines,
osiers, and even reeds. The mast of a ship. Brissonius. Timber. Ainsworth; Calvinus, Lex.
In a technological sense, "arbor" denotes the core consisting of an iron pipe over which is spread a thin coating
of damp sand and which is inserted in the mold used in
casting iron pipe. Casey-Hedges Co. v. Gates, 139 Tenn.
63, 201 S.W. 760, 761, L.R.A.1918B, 184.
ARBOR CIVILIS. A genealogical tree. Coke,
Inst.
ARBOR CONSANGUINITATIS. A table, formed
in the shape of a tree, showing the genealogy of
a family. See the arbor civilis of the civilians and
canonists. Hale, Com.Law, 335.
ARBOR DUM CRESCIT, LIGNUM DUM CRESCERE NESCIT. [That which is] a tree while it
grows, [is] wood when it ceases to grow. Cro.
Jac. 166; Hob. 77b, in marg.
ARBOR FINALIS. In old English law. A boundary tree; a tree used for making a boundary line.
Bract. fols. 167, 207b.
ARCA. Lat. In the civil law. A chest or coffer;
a place for keeping money. Dig. 30, 30, 6; Id. 32,
64. Brissonius.
ARCANA IMPERII. State secrets. 1 B1.Comm.
337.
ARCARIUS._ In civil and old English law. A
treasurer; a keeper of public money% Cod. 10, 70,
15; Spelman.
ARCHAIONOMIA. A collection of Saxon laws,
published during the reign of Queen Elizabeth, in
the Saxon language, with a Latin version by Lambard.
ARCHBISHOP. In English ecclesiastical law. The
chief of the clergy in his province, having supreme
power under the king or queen in all ecclesiastical
causes. He has also his own diocese, in which he
exercises episcopal jurisdiction, as in his province
he exercises archiepiscopal authority. In England
he is addressed as Most Reverend.
ARCHDEACON. A dignitary of the Anglican
church who has ecclesiastical jurisdiction immediately subordinate to that of the bishop, either
throughout the whole of his diocese or in some
particular part of it. He is a ministerial officer;
1 Bla.Com. 383. He is addressed as Venerable.
ARCHDEACON'S COURT. In English ecclesiastical law. A court held before a judge appointed
by the archdeacon, and called his official. Its
135
ARCHDEACONRY
jurisdiction comprises the granting of probates
and administrations, and ecclesiastical causes in
general, arising within the archdeaconry. It is
the most inferior court in the whole ecclesiastical
polity of England. 3 Bl.Comm. 64; 3 Steph.Comm.
430.
ARCHDEACONRY. A division of a diocese, and
the circuit of an archdeacon's jurisdiction.
ARCHERY. In feudal law. A service of keeping
a bow for the lord's use in the defense of his
castle. Co.Litt. 157.
ARCHES COURT. In English ecclesiastical law.
A court of appeal belonging to the Archbishop of
Canterbury, the judge of which is called the
"Dean of the Arches," because his court was
anciently held in the church of Saint Mary-le-Bow,
(Sancta Maria de Arcubus,) so named from the
steeple, which is raised upon pillars built archwise. 3 Bl.Comm. 64.
The court was formerly held in the hall belonging to
the College of Civilians, commonly called "Doctors' Commons." It is now held in Westminster Hall. Its proper
jurisdiction is only over the thirteen peculiar parishes belonging to the archbishop in London, but, the office of
Dean of the Arches having been for a long time united with
that of the archbishop's principal official, the Judge of the
Arches, in right of such added office, it receives and determines appeals from the sentences of all inferior ecclesiastical courts within the province.
ARCHETYPE. The original from which a copy
is made.
ARCHICAPELLANUS. L. Lat. In old European
law. A chief or high chancellor, (summus cancellarius). Spelman.
ARCHITECT. One who makes plans and specifications for a building and superintends its construction. Payne v. De Vaughn, 77 Cal.App. 399,
246 P. 1069, 1071; Stephens County v. J. N. McCammon, Inc., 122 Tex. 148, 52 S.W.2d 53; Sugarman Contracting Co. v. Phoenix Finance System,
Iowa, 243 N.W. 369, 370. Also one who plans and
constructs landscape work. State v. Mcllhenny,
201 La. 78, 9 So.2d 467, 470.
ARCHIVES. The Rolls; any place where ancient
records, charters, and evidences are kept. In
libraries, the private depository. Cowell; Spelman.
The derivative meaning of the word (now the
more common) denotes the writings themselves
thus preserved; thus we say the archives of a
college, of a monastery, a public office, etc. Texas
M. Ry. Co. v. Jarvis, 69 Tex. 537, 7 S.W. 210.
ARCHIVIST. The custodian of archives.
ARCIFINIOUS. (Lat., arcifinius or arcifinalis;
Fr., arcifinie.) Pertaining to landed estates having natural boundaries, such as woods, mountains,
or rivers. The owners of such estates, unlike the
owners of "agri limitati" (q. v.), .have the right
of alluvion. Smith v. St. Louis Public Schools,
30 Mo. 290, 303.
Also, having a frontier forming a natural defense. Twiss, Law of Nations, II. 215.
ARCTA ET SALVA CUSTODIA. Lat. In strict
(or close) and safe custody or keeping. When a
defendant is arrested on a capias ad satisfaciendum, (ca. sa.,) he is to be kept arcta et salva
custodi. 3 Bl.Comm. 415.
ARDENT SPIRITS. Spirituous or distilled liquors. State v. Centennial Brewing Co., 55 Mont.
500, 179 P. 296, 297; Christian v. Commonwealth,
132 Va. 616, 111 S.E. 130.
Synonymous with "spirituous liquors" (q. v.)
and, sometimes, with intoxicating liquors generally, though the term is properly applied only
to liquors obtained by distillation, such as rum,
whisky, brandy, and gin. 48 C.J.S. p. 139; Sarlls
v. U. S., 14 S.Ct. 720, 721, 152 U.S. 570, 572, 38
L.Ed. 556.
ARDOUR. In old English law. An incendiary;
a house burner.
ARE, n. A surface measure in the French law,
in the form of a square, equal to 1076.441 square
feet.
AREA. A surface, a territory, a region. Fleming
v. Farmers Peanut Co., C.C.A.Ga., 128 F.2d 404,
406. Any plane surface, also the inclosed space
on which a building stands, the sunken space or
court giving ingress and affording light to the
basement of a building, a particular extent of
surface. State v. Armstrong, 97 Neb. 343, 149 N.
W. 786, 788, Ann.Cas.1917A, 554. An inclosed yard
or opening in a house; an open place adjoining
a house. 1 Chit.Pr. 176. The site of a house; a
site for building; the space where a house has
stood. The ground on which a house is built, and
which remains after the house is removed. Brissonius; Calvin.
In the civil law. A vacant space in a city; a
place. not built upon. Dig. 50, 16, 211.
"Area" in geometry means the superficial contents of any figure. State v. City of Polytechnic,
Tex.Civ.App., 194 S.W. 1136, 1140.
AREAL GEOLOGY. That branch of geology
which pertains to the distribution, position, and
form of the areas of the earth's surface, occupied
by different sorts of rock or different geologic
formations, and to the making of geologic maps.
Lewis v. Carr, 49 Nev. 366, 246 P. 695, 696.
AREAWAY. As used in an ordinance regulating
the construction of areaways under any sidewalk,
"areaway" was equivalent to cellar or room under
the sidewalk. State v. Armstrong, 97 Neb. 343,
149 N.W. 786, 788, Ann.Cas.1917A, 554.
ARENALES. In Spanish law. Sandy beaches;
or grounds on the banks of rivers. White, Recop.
b. 2, tit. 1, c. 6.
ARENDATOR. A farmer or renter; in some
provinces of Russia, formerly one who farmed
the public rents or revenues; a "crown arendator"
is one who rents an estate belonging to the crown.
136
ARGUMENTUM
ARGUMENTATIVE. By way of reasoning. In
pleading. Indirect; inferential. Steph.P1. 179.
ARENIFODINA. In the civil law. A sandpit.
Dig. 7, 1, 13, 5.
A pleading is so called in which the statement on which
the pleader relies is implied instead of being expressed,
or where it contains, in addition to proper statements of
facts, reasoning or arguments upon those facts and their
relation to the matter in dispute, such as should be reserved for presentation at the trial.
ARENTARE. Lat. To rent; to let out at a certain rent. Cowell. Arentatio. A renting.
AREOPAGITE. In ancient Greek law. A lawyer
or chief judge of the Areopagus in capital matters
in Athens; a tribunal so called after a hill or
slight eminence, in a street of that city dedicated
to Mars, where the court was held in which those
judges were wont to sit. Wharton.
ARGUMENTATIVE INSTRUCTION. An instruction which singles out or unduly emphasizes a
particular issue, theory, or defense, or one which
tends to invade the province of the jury with regard to the weight, probative effect, or sufficiency
of the evidence or the inferences to be drawn
therefrom. See 64 C.J. §§ 594, 601.
ARERE. L. Fr. Behind; in arrear; back; again.
Adams Gloss.
ARETRO. In arrear; behind. Also written a
ARGUMENTUM A COMMUNITER ACCIDENTIBUS IN JURE FREQUENS EST. An argument
drawn from things commonly happening is frequent in law. Broom Max. 44.
retro.
ARG. An abbreviation of arguendo.
ARGENT. In heraldry. Silver.
ARGUMENTUM A DIVISIONE EST FORTISSIMUM IN JURE. An argument from division [of
the subject] is of the greatest force in law. Co.
Litt. 213b; 6 Coke 60.
ARGENTARIUS (pl., Argentarii). In the Roman
law, a money lender or broker; a dealer in money; a banker. Argentarium, the instrument of
the loan, similar to the modern word "bond" or
"note."
ARGUMENTUM A MAJORI AD MINUS NEGATIVE NON VALET; VALET E CONVERSO. An
argument from the greater to the less is of no
force negatively; affirmatively (or conversely)
it is. Jenk.Cent. 281.
ARGENTARIUS MILES. A money porter in the
English exchequer, who carries the money from
the lower to the upper exchequer to be examined
and tested. Spelman.
ARGUMENTUM A SIMILI VALET IN LEGE. An
argument from a like case (from analogy) is good
in law. Co.Litt. 191.
ARGENTEUS. An old French coin, answering
nearly to the English shilling. Spelman.
ARGUMENTUM AB AUCTORITATE EST FORTISSIMUM IN LEGE. An argument from authority is the strongest in the law. "The book
cases are the best proof of what the law is." Co.
Litt. 254a.
ARGENTUM. Silver; money.
ARGENTUM ALBUM. Bullion; uncoined silver;
common silver coin; silver coin worn smooth.
Cowell; Spelman.
ARGUMENTUM AB IMPOSSIBILI VALET IN
LEGE. An argument drawn from an impossibility
is forcible in law. Co.Litt. 92a.
ARGENTUM DEL God's money; God's penny;
money given as earnest in making a bargain.
Cowell.
ARGUMENTUM AB INCONVENIENT!. An argument arising from the inconvenience which the
proposed construction of the law would create.
Where the constitutionality of a statute is concerned, it is only when the question is close and
doubtful that this doctrine will be applied and
consideration taken of the consequences of declaring the statute unconstitutional. Calhoun
County v. Early County, 205 Ga. 169, 52 S.E.2d
854; Smith v. City Council of Augusta, 203 Ga.
511, 47 S.E.2d 582, 587.
ARGUENDO. In arguing; in the course of the
argument. A statement or observation made by
a judge as a matter of argument or illustration,
but not directly bearing upon the case at bar, or
only incidentally involved in it, is said (in the
reports) to be made arguendo, or in the abbreviated form, arg.
ARGUMENT. An effort to establish belief by a
course of reasoning.
In rhetoric and logic, an inference drawn from
premises, the truth of which is indisputable, or
at least highly probable.
The argument of a demurrer, special case, appeal, or
other proceeding involving a question of law, consists of
the speeches of the opposed counsel; namely, the "opening" of the counsel having the right to begin, (q. v.,) the
speech of his opponent, and the "reply" of the first counsel. It answers to the trial of a question of fact. Sweet.
But the submission of printed briefs may technically constitute an argument. State v. California Min. Co., 13 Nev.
209. Also, the opening statement to a jury is part of the
argument. State v. McCaskill, 173 Iowa 563, 155 N.W. 976,
977.
ARGUMENTUM AB INCONVENIENT! EST
VALIDUM IN LEGE; QUIA LEX NON PERMITTIT ALIQUOD INCONVENIENS. An argument
drawn from what is inconvenient is good in law,
because the law will not permit any inconvenience.
Co.Litt. 66a, 258.
ARGUMENTUM AB INCONVENIENT! PLURIMUM VALET [EST VALIDUM] IN LEGE. An
argument drawn from inconvenience is of the
greatest weight [is forcible] in law. Co.Litt. 66a,
137
ARIBANNUM
97a, 152b, 258b; Broom, Max. 184. If there be in
any deed or instrument equivocal expressions, and
great inconvenience must necessarily follow from
one construction, it is strong to show that such
construction is not according to the true intention
of the grantor; but where there is no equivocal
expression in the instrument, and the words used
admit only of one meaning, arguments of inconvenience prove only want of foresight in the
grantor. 3 Madd. 540; 7 Taunt. 496.
ARISTOCRACY. A government in which a class
of men rules supreme; a form of government
which is lodged in a council composed of select
members or nobles, without a monarch, and exclusive of the people.
A privileged class of the people; nobles and
dignitaries; people of wealth and station.
ARIBANNUM. In feudal law. A fine for not
setting out to join the army in obedience to the
summons of the king.
ARISTO-DEMOCRACY. A form of government
where the power is divided between the nobles
(or the more powerful) and the people.
ARIERBAN, or ARRIERE-BAN. An edict of
the ancient kings of France and Germany, commanding all their vassals, the noblesse, and the
vassals' vassals, to enter the army, or forfeit
their estates on refusal. Spelman. See, also,
Arrier Ban.
ARLES. Earnest. Used in Yorkshire in the
phrase "Arles-penny." Cowell. In Scotland it has
the same signification. Bell.
625, 253 P. 1104, 1105. See, further, Course; Watson v.
Pitcairn, Mo.App., 139 S.W.2d 552, 554; Ervin v. Industrial
Commission, 364 Ill. 56, 4 N.E.2d 22, 25.
ARM OF THE SEA. A portion of the sea projecting inland, in which the tide ebbs and flows. 5
Coke, 107. It is. considered as extending as far
into the interior of a country as the water of
fresh rivers is propelled backwards by the ingress
of the tide. Adams v. Pease, 2 Conn. 484; U. S.
v. Grush, 5 Mason, 290, Fed.Cas.No.15,268; Ex
parte Byers, D.C.Mich., 32 Fed. 404. See Fauces
Terre.
ARIMANNI. A medieval term for a class of
agricultural owners of small allodial farms, which
they cultivated in connection with larger farms
belonging to their lords, paying rent and service
for the latter, and being under the protection of
their superiors. Military tenants holding lands
from the emperor. Spelman.
ARMA. Lat. Arms; weapons, offensive and defensive; armor; arms or cognizances of families.
ARISE. To spring up, originate, to come into
being or notice, to become operative, sensible,
visible, or audible; to present itself. Bergin v.
Temple, 111 Mont. 539, 111 P.2d 286, 289, 290, 133
A.L.R. 1115; Lane v. Travelers Ins. Co. of Hartford, Conn., 230 Iowa 973, 299 N.W. 553, 555.
ARMA DARE. To dub or make a knight.
ARMA IN ARMATOS SUMERE JURA SINUNT.
The laws permit the taking up of arms against
armed persons. 2 Inst. 574.
"Accrue" not synonymous; the latter term means to
result, to add, to acquire, to receive, to benefit, Rogues
v. Continental Casualty Co., 17 La.App. 465, 135 So. 51, 52.
A case "arises" under the Constitution or a law of the
United States, so as to be within the jurisdiction of a federal court, whenever its correct decision depends on the
construction of either. Cleveland, C., C. & St. L. Ry. Co.
v. Hirsch, C.C.A.Ohio, 204 F. 849, 851; Blease v. Safety
Transit Co., C.C.A.S.C., 50 F.2d 852, 854.
A cause of action or suit "arises", so as to start running
of limitation, when party has a right to apply to proper
tribunal for relief. Washington Security Co. v. State, 9
Wash.2d 197, 114 P.2d 965, 967, 135 A.L.R. 1330 ; and it
arises at time when and place where act is unlawfully omitted or committed. State ex rel. Birnamwood Oil Co. v.
Shaughnessy, 243 Wis. 306, 10 N.W.2d 292, 295.
ARISING OUT OF AND IN THE COURSE OF
OWN EMPLOYMENT. Workmen's Compensation
Acts provide for compensating an employee whose
injury is one "arising out of and in the course of
the employment." These words describe an injury directly and naturally resulting in a risk
reasonably incident to the employment. Thomas
v. Proctor & Gamble Mfg. Co., 104 Kan. 432, 179
P. 372, 374, 6 A.L.R. 445; Trudenich v. Marshall,
D.C.Wash., 34 F.Supp. 486, 488. They mean that
there must be some causal connection between
the conditions under which the employee worked
and the injury which he received. Amicucci v.
Ford Motor Co., 308 Mich. 151, 13 N.W.2d 241.
ARMA MOLUTA. Sharp weapons that cut, in
contradistinction to such as are blunt, which only
break or bruise. Fleta, lib. 1, c. 33, par. 6.
ARMA REVERSATA. Reversed arms, a punishment for a traitor or felon. Cowell.
ARMATA VIS. In the civil law. Armed force.
Dig. 43, 16, 3; Fleta, lib. 4, c. 4.
ARMED. Furnished or equipped with weapons
of offense or defense. People ex rel. Griffin v.
Hunt, 270 N.Y.S. 248, 254, 150 Misc. 163.
A vessel is "armed" when she is fitted with a full armament for fighting purposes. Murray v. The Charming
Betsy, 2 Cranch, 121, 2 L. Ed. 208.
ARMED FORCE. As used in statutes authorizing peace officers to summon an "armed force"
to aid them, this term may refer to a military
organization, but this is not necessarily so, and,
depending on the context, it may mean only a
posse comitatus (q. v.). Chapin v. Ferry, 28 P.
754, 756, 3 Wash. 386, 15 L.R.A. 116.
ARMED NEUTRALITY. An attitude of neutrality between belligerents which the neutral state is
prepared to maintain by armed force if necessary.
ARMED PEACE. A situation in which two or
more nations, while actually at peace with each
other, are armed for possible or probable hostilities.
138
The words "arising out of employment" refer to the
origin of the cause of the injury, while "course of employment" refer to the time, place, and circumstances under which the injury occurred. Walker v. Hyde, 43 Idaho,
ARRAIGNS
occupied temporarily in the pursuit of civil life, but organized by discipline and drill, and called into the field for
temporary military service when the exigencies of the
country require it. And see Brown v. Soldiers' Bonus
Board, 44 R.I. 483, 116 A. 280, 281.
ARMIGER. An armor-bearer; an esquire. A title
of dignity belonging to gentlemen authorized to
bear arms. Cowell. In its earlier meaning, a servant who carried the arms of a knight. A tenant by
scutage; a servant or valet; applied, also, to the
higher servants in convents. Spelman.
—Regular army. The permanent military establishment, which is maintained both in peace and
war according to law. 10 U.S.C.A. § 3; State v.
Moorhead, 102 Neb. 276, 167 N.W. 70, 71.
ARMING ONE'S SELF. Equipping one's self with
a weapon or weapons. Simmons v. State, 87 Tex.
Cr.R. 270, 220 S.W. 554.
AROMATARIUS. A word formerly used for a
grocer. 1 Vent. 142.
ARMISCARA. An ancient mode of punishment,
which was to carry a saddle at the back as a
token of subjection. Spelman.
AROUND. In the vicinity of. Hawkins v. First
National Bank, Tex.Civ.App., 175 S.W. 163, 164.
ARMISTICE. A suspending or cessation of hostilities between belligerent nations or forces for a
considerable time. Dooley v. Johnson, 133 Cal.
App. 459, 24 P.2d 540.
Thus, sheep branded "0" on the hip or side may be
within a mortgage covering sheep described as branded
"0" around the hip bone.
The term cannot properly be applied to agreements between a government on one side and rioters, brigands, and
banditti on the other. O'Neill v. Central Leather Co., 87
N.J.L. 552, 94 A. 789, 790, L.R.A.1917A, 276.
An armistice differs from a mere "suspension of arms"
(q. v.) in that the latter is concluded for very brief periods
and for local military purposes onV, whereas an armistice
not only covers a longer period, 'but is agreed upon for
political purposes. It is said to be general if it relates to
the whole area of the war, and partial if it relates to only
a portion of that area. Partial armistices are sometimes
called truces (q. v.) but there is no hard and fast distinction.
ARMORIAL BEARINGS. In English law. A device depicted on the (now imaginary) shield of
one of the nobility, of which gentry is the lowest
degree. The criterion of nobility is the bearing
of arms, or armorial bearings, received from ancestry.
ARMORUM APPELLATIONE, NON SOLUM
SCUTA ET GLADII ET GALEZE, SED ET FUSTES ET LAPIDES CONTINENTUR. Under the
name of arms are included, not only shields and
swords and helmets, but also clubs and stones.
Co.Litt. 162.
ARMORY. A building where arms, ammunition,
and instruments of war are stored. Comp.Laws
1929, §§ 692, 3395. Grosse Ile v. Saunders, 262
Mich. 451, 247 N.W. 912, 913.
ARMS. Anything that a man wears for his defense, or takes in his hands, or uses in his anger,
to cast at or strike at another. Co.Litt. 161b,
162a; State v. Buzzard, 4 Ark. 18.
Arms, or coat of arms, signifies insignia, i. e. ensigns
of honor, such as were formerly assumed by soldiers of
fortune, and painted on their shields to distinguish them;
or nearly the same as armorial bearings (q. v.).
ARMS, LAW OF. That law which gives precepts
and rules concerning war; how to make and observe leagues and truce, to punish offenders in
the camp, and such like. Cowell; Blount. Now
more commonly called the "law of war." See,
also, War.
ARMY. The armed forces of a nation intended
for military service on land.
An "army" is a body of men whose business is war,
while the "militia" is a body of men composed of citizens
ARPEN, Arpent, Arpennus. A measure of land
of uncertain quantity mentioned in Domesday and
other old books; by some called an "acre," by
others "half an acre," and by others a "furlong."
Spelman; Cowell; Blount. Quoted in McMillan
v. Aiken, 205 Ala. 35, 88 So. 135, 143.
A French measure of land, containing one hundred
square perches, of eighteen feet each, or about an acre.
But the quantity varied in different provinces. Spelman.
An "arpent" is a land measure varying in dimension from
.84 of an acre to 1404 acres and to 1.28 acres, accordingly
as the arpent meant is an arpent de Paris, an arpent cornmun, or an arpent d'ordonnance. Troll v. City of St.
Louis, 257 Mo. 626, 168 S.W. 167, 171. In Louisiana, the
terms "arpent" and "acre" are sometimes used interchangeably; but there is a considerable difference, the arpent being the square of 192 feet and the acre of 209 and a
fraction. Randolph v. Sentilles, 110 La. 419, 34 So. 587.
ARPENTATOR. A measurer or surveyor of land.
Cowell; Spelman.
ARRA. In the civil law. Earnest; earnest-money; evidence of a completed bargain. Used of a
contract of marriage, as well as any other.
Spelled, also, Arrha, Arrhce, Arrce, Calvin. Cf.
Arles.
ARRAIGN. In criminal practice. To bring a
prisoner to the bar of the court to answer the
matter charged upon him in the indictment. Ex
parte Jeffcoat, 109 Fla. 207, 146 So. 827, 828. The
arraignment (q. v.) of a prisoner consists of calling upon him by name, and reading to him the
indictment, (in the English tongue,) and demanding of him whether he be guilty or not guilty, and
entering his plea. State v. Voelpel, 213 Iowa 702,
239 N.W. 677, 679.
In old English law. To order, or set in order;
to conduct in an orderly manner; to prepare for
trial. To arraign an assise was to cause the tenant to be called to make the plaint, and to set
the cause in such order as the tenant might be
enforced to answer thereunto. Litt. § 442; Co.
Litt. 262b.
ARRAIGNMENT. See Arraign.
ARRAIGNS, CLERK OF. In English law. An
assistant to the clerk of assise.
139
ARRAMEUR
ARRAMEUR. In old French law. An officer employed to superintend the loading of vessels, and
the safe stowage of the cargo. 1 Pet.Adm.Append.
XV.
ARRANGEMENT. A setting in order. 1 El. &
Bl. 540. Plan for corporate reorganization proposing to effect a composition or extension of time
with reference to corporation's unsecured debts.
John Hancock Mut. Life Ins. Co. v. Casey, C.C.A.
Mass., 141 F.2d 104, 107.
ARRANGEMENT, DEED OF. A term used in
England to express an assignment for the benefit
of creditors.
ARRAS. In Spanish law. The donation which
the husband makes to his wife, by reason or on
account of marriage, and in consideration of the
dote, or portion, which he receives from her. Miller v. Dunn, 62 Mo. 219. The property contributed
by the husband ad sustinenda onera matrimonii
(for bearing the expenses).
ARRAY. The whole body of jurors summoned to
attend a court, as they are arrayed or arranged on
the panel. Dane, Abr. Index; 1 Chit.Crim.Law,
536; Com.Dig. "Challenge," B. Durrah v. State, 44
Miss. 789. A ranking, or setting forth in order;
the order in which jurors' names are ranked in the
panel containing them. Co.Litt. 156a; 3 Bl.Comm.
359.
ARRAYER. An English military officer in the
early part of the fifteenth century. His duties
were similar to those of the modern Lord Lieutenant of a county.
ARREARS, or ARREARAGES. Money unpaid at
the due time, as rent behind; the remainder due
after payment of a part of an account; money in
the hands of an accounting party. Board of Education of Glen Ellyn Tp. High School Dist. No. 87
v. Boger, 291 Ill. 191, 125 N.E. 768, 770. Indebtedness. State ex rel. City of South Euclid v. Zangerle, 145 Ohio St. 433, 62 N.E.2d 160, 162.
In arrear (arrears). Overdue and unpaid. Hollingsworth
v. Willis, 64 Miss. 157, 8 So. 170. Behind in the payment of
that which is due. Grand Court of Texas Independent
Order of Calanthe v. Johns, Tex.Civ.App., 181 S.W. 869,
870.
As used in Bankruptcy Act, § 9 (11 USCA § 27), arrest includes "imprisonment." Ex parte Harrison, D.C.Mass.,
272 F. 543, 544.
One of the means which the law gives the creditor to
secure the person of his debtor while the suit is pending,
or to compel him to give security for his appearance after
judgment. La.Code Pr c. art. 210.
As ordinarily used, tAe terms arrest and attachment coincide in meaning to some extent; though in strictness, as
a distinction, an arrest may be said to be the act resulting
from the service of an attachment. And in the more extended sense which is sometimes given to attachment, including the act of taking, it would seem to differ from arrest in that it is more peculiarly applicable to a taking of
property, while arrest is more commonly used in speaking
of persons.
Arrest is also applied in some instances to a seizure and,
detention of personal chattels, especially of ships and vessels; thus, in admiralty actions a ship or cargo is arrested
when the marshal has served the writ in an action in rem.
Pelham v. Rose, 9 Wall. 103, 19 L. Ed. 602.
Civil Practice
The apprehension of a person by virtue of a
lawful authority to answer the demand against
him in a civil action. Gentry v. Griffith, 27 Tex.
462.
Criminal Cases
The apprehending or detaining of the person in
order to be forthcoming to answer an alleged or
suspected crime. Ex parte Sherwood, 29 Tex.App.
334, 15 S.W. 812.
The word arrest is said to be more properly used in civil
cases, and apprehension in criminal. Thus, a man is arrested under a capias ad respondendum, and apprehended
under a warrant charging him with larceny.
ARRECT. To accuse or charge with an offense.
Arrectati, accused or suspected persons.
ARRENDAMIENTO. In Spanish law. The contract of letting and hiring an estate or land,
(heredad.) White, Recop. b. 2, tit. 14, c. 1.
ARRENT. In old English law. To let or demise
at a fixed rent. Particularly used with reference
to the public domain or crown lands; as where a
license was granted to inclose land in a forest
with a low hedge and a ditch, under a yearly rent,
or where an encroachment, originally a purpresture, was allowed to remain on the fixing and payment of a suitable compensation to the public for
its maintenance.
ARREST. To deprive a person of his liberty by
legal authority. Taking, under real or assumed
authority, custody of another for the purpose .of
holding or detaining him to answer a criminal
charge or civil demand. Ex parte Sherwood, 29
Tex.App. 334, 15 S.W. 812. Physical seizure of
person by arresting officer or submission to officer's authority and control is necessary to constitute an "arrest." Thompson v. Boston Pub. Co.,
285 Mass. 344, 189 N.E. 210, 213. It is a restraints
however slight, on another's liberty to come and
go. Turney v. Rhodes, 42 Ga.App. 104, 155 S.E.
112. It is the taking, seizing or detaining the
person of another, touching or putting hands
upon him in the execution of process, or any act
indicating an intention to arrest. U. S. v. Benner,
Bald. 234, 239, Fed.Cas.No.14,568; State v. District
Court of Eighth Judicial Dist. in and for Cascade
County, 70 Mont. 378, 225 P. 1000, 1001; Hoppes v.
State, 105 P.2d 433, 439, 70 Okl.Cr. 179.
Malicious Arrest
An arrest made willfully and without probable
cause, but in the course of a regular proceeding.
Parol Arrest
One ordered by a judge or magistrate from the
bench, without written complaint or other proceedings, of a person who is present before him,
and which is executed on the spot; as in case of
breach of the peace in open court.
Rearrest
Right of an officer to take without warrant one
forcibly freeing himself after arrest. Gross v.
140
ARRIAGE
State, 186 Ind. 581, 117 N.E. 562, 1 A.L.R. 1151, or
escaping in any manner, Hefler v. Hunt, 120 Me.
10, 112 A. 675, or violating parole, Massey v. Cunningham, 169 Ark. 410, 275 S.W. 737, or failing
to respond to bond for appearance, Porter v. Garmony, 148 Ga. 261, 96 S.E. 426.
the latter by the process of arrestment. 2 Kames,
Eq. 173, 175.
Second Arrest
The "second arrest" forbidden after discharge
on habeas corpus means an imprisonment based
on the same information and not under a new
information followed by a lawful warrant. State
v. Riley, 109 Minn. 437, 124 N.W. 13. See, also,
Stair v. Heska Amone Congregation, 128 Tenn.
190, 159 S.W. 840, 841.
ARRESTER. In Scotch law. One who sues out
and obtains an arrestment of his debtor's goods
or movable obligations. Erskine, Inst. 3. 6. 1.
Warrant of Arrest
A written order issued and signed by a magistrate, directed to a peace officer or some other
person specially named, and commanding him to
arrest the body of a person named in it, who is
accused of an offense. Brown v. State, 109 Ala.
70, 20 So. 103.
ARREST OF INQUEST. Pleading in arrest of
taking the inquest upon a former issue, and showing cause why an inquest should not be taken.
ARREST OF JUDGMENT. The act of staying a
judgment, or refusing . to render judgment in -an
action at law and in criminal cases, after verdict, for some matter intrinsic appearing on
the face of the record, which. would render the
judgment, if -given, erroneous or reversible. 3 Bl.
Comm. 393; 3 Steph.Comm. 628; 2 Tidd, Pr. 918;
Speer v. Pierce, 18 Tenn.App. 351, 77 S.W.2d 77,
78; State v. Ferguson, 165 Tenn. 61, 52 S.W.2d
140.
It is the fact that a motion in arrest of judgment is
based on some defect on the face of the record or pleadings
which aids in distinguishing it from a motion for a new
trial. Maddox Coffee Co. v. McHan, 22 Ga.App. 198, 95 S.
E. 736. It differs also from a motion to set aside a judgment, in that a motion in arrest of judgment must be
made during the term when the judgment was rendered.
Love v. National Liberty Ins. Co., 157 Ga. 259, 121 S.E.
648, 650. A motion in arrest of judgment is practically a
demurrer, People v. Cordosco, 77 Cal.App. 780, 246 P. 461,
462, and has been abolished in some jurisdictions. State
v. Sharp, Mo.Sup., 300 S.W. 501.
ARRESTANDIS BONIS NE DISSIPENTUR. In
old English law. A writ which lay for a person
whose cattle or goods were taken by another, who
during a contest was likely to make away with
them, and who had not the ability to render satisfaction. Reg.Orig. 126.
If, in contempt of the arrestment, he make payment of
the sum or deliver the goods arrested to the common debtor, he is not only liable criminally for breach of the arrestment, but he must pay the debt again to the arrester ;
Erskine, Inst. 3, 6, 6.
ARRESTMENT. In Scotch law. Securing a criminal's person till trial, or that of a debtor till he
give security judicio sisti. The order of a judge,
by which he who is debtor in a movable obligation
to the arrester's debtor is prohibited to make pay:
ment or delivery till the debt due to the arrester
be paid or secured. Erskine, Inst. 3. 6. 1; 1. 2. 12.
ARRESTMENT JURISDICTIONIS FUNDAND1E
CAUSA. In Scotch law. A process to bring a
foreigner within the jurisdiction of the courts of
Scotland. The warrant attaches a foreigner's
goods within the jurisdiction, and these will not
be released unless caution or security be given.
ARRESTO FACTO SUPER BONIS MERCATORUM ALIENIGENORUM. In old English law. A
writ against the goods o f aliens found within this
kingdom, in recompense of goods taken from a
denizen in a 'foreign country, after denial of restitution. Reg.Orig. 129. The ancient civilians called
it "clarigatio," but by the moderns it is termed
"reprisalia."
ARRET. Fr. A judgment, sentence, or decree of
a court of competent jurisdiction.
The term is derived from the French law, and
is used in Canada and Louisiana.
Saisie arrdt is an attachment of property in the
hands of a third person. Code Pr.La. art. 209;
2 Low.Can. 77; 5 Low.Can. 198, 218. See "Saisie."
ARRETTED. Convened before a judge and
charged with a crime.
Ad rectum malefactoreirn is, according to Bracton, to have a malefactor forthcoming to be put
on his trial.
Imputed or laid to one's charge; as, no folly
may be arretted to one under age. Bracton, 1. 3,
tr. 2, c. 10; Cunningham, Diet.; Cowell.
ARRHABO. In the civil law. Earnest; money
given to bind a bargain. Calvin.
ARRILE. In the civil law. Money or other valuable things given by the buyer to the seller, for
the purpose of evidencing the contract; earnest.
See Arra; Pot-de-vin.
Arrhce sponsolitice were the earnest or present
given by one betrothed to the other at the betrothal.
ARRESTATIO. In old English law. An arrest
ARRIAGE AND CARRIAGE. In English and.
(q. v.).
Scotch law. Indefinite services formerly demandARRESTEE. In Scotch law. The person in
able from tenants, but prohibited by statute, (20
whose hands, the movables of another, or a debt
Geo. II, c. 50, §§ 21, 22.) Holthouse; Ersk.Inst. 2,
due to another, are arrested by the creditor of
6, 42.
141
ARRESTANDO IPSUM QUI PECUNIAM RECEPIT. In old English law. A writ which issued
for apprehending a person who had taken the
king's prest money to serve in the wars, and then
hid himself in order to avoid going.
ARRIER
ARRIER BAN. In feudal law. A second summons to join the lord, addressed to those who had
neglected the first. A summons of the inferiors
or vassals of the lord. Spelman, Gloss. See,
also, Arierban.
ARRIERE FIEF, or FEE. In feudal law. A fief
or fee dependent on a superior one; an inferior
fief granted by a vassal of the king, out of the
fief held by him. Montesq. Esprit des Lois, liv.
31, cc. 26, 32.
had "arrived" within the meaning of Tariff Act 1922, §
586 (19 USCA § 488). The Cherie, C.C.A.Me., 13 F.2d 992,
993.
ARROGATION. In the civil law. The adoption
of a person who was of full age or sui juris. 1
Browne, Civil & Adm.Law, 119; Dig. 1, 7, 5; Inst.
1, 11, 3. Reinders v. Koppelmann, 68 Mo. 497, 30
Am.Rep. 802.
ARRONDISSEMENT. In France, one of the subdivisions of a department.
ARRIERE VASSAL. In feudal law. The vassal
of a vassal.
ARSZE ET PENSAT1E. Burnt and weighed. A
term formerly applied to money tested or assayed
by fire and by weighing.
ARRIVAL. In marine insurance, arrival of a vessel means an arrival for purposes of business, requiring an entry and clearance and stay at the
port so long as to require some of the acts connected with business, and not merely touching at
a port for advices, or to ascertain the state of the
market, or being driven in by an adverse wind
and sailing again as soon as it changes. F. S.
Royster Guano Co. v. U. S., C.C.A.Va., 18 F.2d 469,
470.
ARSENALS. Store-houses for arms; dock-yards,
magazines, and other military stores.
"A vessel arrives at a port of discharge when she comes,
or is brought, to a place where it is intended to discharge
her, and where is the usual and customary place of discharge. When a vessel is insured to one or two ports, and
sails for one, the risk terminates on her arrival there. If a
vessel is insured to a particular port of discharge, and is
destined to discharge cargo successively at two different
wharves, docks, or places, within that port, each being a
distinct place for the delivery of cargo, the risk ends when
she has been moored twenty-four hours in safety at the
first place. But if she is destined to one or more places for
the delivery of cargo, and delivery or discharge of a portion of her cargo is necessary, not by reason of her having reached any destined place of delivery, but as a necessary and usual nautical measure, to enable her to reach
such usual and destined place of delivery, she cannot properly be considered as having arrived at the usual and customary place of discharge, when she is at anchor for the
purpose only of using such means as will better enable her
to reach it. If she cannot get to the destined and usual
place of discharge in the port because she is too deep, and
must be lightered to get there, and, to aid in prosecuting
the voyage, cargo is thrown overboard or put into
lighters, such discharge does not make that the place of
arrival; it is only a stopping-place in the voyage. When
the vessel is insured to a particular port of discharge, arrival within the limits of the harbor does not terminate
the risk, if the place is not one where vessels are discharged and voyages completed. The policy covers the
vessel through the port navigation, as well as on the open
sea, until she reaches the destined place." Simpson v. Insurance Co., Holmes, 137, Fed.Cas.No.12,886.
"Arrival of ship," within meaning of bills of lading requiring claims to be filed, must be construed, where MISdelivery is charged, as meaning date when cargo is discharged or offe r ed for delivery. The Cardiganshire, D.C.
Cal., 9 F.2d 416, 420. "Arrival" within the immigration
laws means compliance with the requirements entitling an
alien to entry. See 8 USCA §§ 106, 380. In re Kempson, D.
C.Wash., 14 F.2d 668, 669.
ARRIVE. To come to a particular place; to reach
a particular or certain place. Thompson v. U. S.,
1 Brock. 411, Fed.Cas.No.13,985; 8 B. & C. 119.
The words "arrive" and "enter" are not always synonymous; there certainly may be an arrival without an actual
entry or attempt to enter. United States v. Open Boat, 5
Mason, 120, 132, Fed.Cas.No.15,967. And where a vessel
from a foreign port, laden with liquors, anchored within
four leagues of the coast, and the master without a permit
therefor allowed part of the cargo to be taken away, with
the intention of so disposing of the entire cargo, the vessel
ARSER IN LE MAIN. Fr. Burning in the hand.
The punishment by burning or branding the left
thumb of lay offenders who claimed and were allowed the benefit of clergy, so as to distinguish
them in case they made a second claim of clergy.
5 Coke, 51; 4 Bl.Comm. 367; Termes de la Ley.
ARSON. At common law, the malicious burning
of the house or outhouse of another. 4 Bla.Com.
220; Thacker v. Commonwealth, 219 Ky. 789, 294
S.W. 491, 492; State v. Berry, 188 La. 612, 177 So.
684, 686; Commonwealth v. Cooper, 264 Mass.
378, 162 N.E. 733, 734.
At common law burning buildings other than dwelling
houses is not arson. Sawyer v. State, 100 Fla. 1603, 132
So. 188, 193. Part of building ignited sufficient to establish
corpus delicti. State v. Caliendo, 4 A.2d 837, 840, 136 Me.
514.
At common law it must be the house of another. 1 Bish.
Cr.Law, § 389; State v. Beckwith, Me., 198 A. 739, 742. But
it is now an offense to burn one's own house under the
statutes of New Hampshire, Arkansas, California, and other states. State v. Blumenthal, 136 Ark. 532, 203 S.W.
36, 37, L.R.A.1918E, 482.
Whether "house" or "dwelling house" be used in statute
defining the crime may be of importance in determining
whether occupancy is or is not an element. 1 Hale, P.C.
566, 567; Commonwealth v. Barney, 64 Mass. (10 Cush.)
478. Some states have expressly eliminated occupancy as
an element, State v. Snover, 101 N.J.Law, 543, 126 A. 850 ;
P.L. 1919, p. 257; while others have made it a distinction
between degrees of the crime, People v. Abrams, 174 Cal.
172, 162 P. 395, 396.
In several states, this crime is divided into arson in the
first, second, and third degrees, the first degree including
the burning of an inhabited dwelling-house in the nighttime; the second degree, the burning (at night) of a building other than a dwelling-house, but so situated with reference to a dwelling-house as to endanger it; the third
degree, the burning of any building or structure not the
subject of arson in the first or second degree, or the burning of property, his own or another's with intent to defraud or prejudice an insurer thereof. State v. Jessup, 42
Kan. 422, 22 P. 627.
ARSURA. The trial of money by heating it after
it was coined. The loss of weight occasioned by
this process. A pound was said to burn so many
pence (tot ardere denarios) as it lost by the fire.
Spelman. The term is now obsolete.
ART. Systematic application of knowledge orskill in effecting a desired result; also an employment, occupation or business requiring such
knowledge or skill; a craft; as industrial arts..
142
ARTICLES
Jones Bros. Co. v. Underkoffler, D.C.Pa., 16 F.Supp.
729, 730; Miller v. State, 9 Okl.Cr. 255, 131 P. 717,.
718, L.R.A.1915A, 1088. A principle put in practice
and applied to some art, machine, manufacture,
or composition of matter. Earle v. Sawyer, 4
Mason, 1, Fed.Cas.No.4,247.
In the law of patents, this term means a useful
art or manufacture which is beneficial and which
is described with exactness in its mode of operation. Such an art can be protected only in the
mode and to the extent thus described. Jacobs
v. Baker, 7 Wall. 297, 19 L.Ed. 200. It is synonymous with process or method when used to produce
a useful result, and may be either a force applied,
a mode of application, or the specific treatment of
a specific object, and must produce physical effects. Emmett v. Metals Processing Corporation,
C.C.A.Ariz., 118 F.2d 796, 798.
Cal.App.2d 255, 138 P.2d 763, 768. "Thing" of
value. Gayer v. Whelan, 59 Cal.App.2d 255, 138
P.2d 763, 768.
In English ecclesiastical law. A complaint exhibited in the ecclesiastical court by way of libel.
The different parts of a libel, responsive allegation, or counter allegation in the ecclesiastical
courts. 3 Bl.Comm. 109.
In Scotch practice. A subject or matter; competent matter. "Article of dittay." 1 Broun, 62.
A "point of dittay." 1 Swint. 128, 129.
—Prior Art. In patent law, something that a man
skilled in the art may by diligence discover. DavisBournonville Co. v. Alexander Milburn Co., C.C.A.
N.Y., 1 F.2d 227, 231.
In seduction cases, "art" means the skillful and
systematic arrangement of means for the attainment of a desired end. Hayes v. State, 19 Ala.
App. 241, 96 So. 647.
ARTICLES. 1. A connected series of propositions; a system of rules. The subdivisions of a
document, code, book, etc. A specification of distinct matters agreed upon or established by authority or requiring judicial action. ,
2. A statute; as having its provisions articulately expressed under distinct heads. Several of
the ancient English statutes were called "articles,"
ARTICLED CLERK. In English law. A clerk
bound to serve in the office of a solicitor in consideration of being instructed in the profession.
This is the general acceptation of the term; but
it is said to be equally applicable to other trades
and professions. Reg. v. Reeve, 4 Q.B. 212.
(articuli.)
ART, WORDS OF. Words used in a technical
sense; words scientifically fit to carry the sense
assigned them.
ART AND PART. In Scotch law. The offense
committed by one who aids and assists the commission of a crime, but who i$ not the principal or
chief actor in its actual commission. An accessory. A principal in the second degree. Paters.
Comp.
ART MUSEUM. A building containing works of
art. In re Everson's Will, 52 N.Y.S.2d 395, 399,
268 App.Div. 425.
ARTESIAN BASIN. A body of water more or
less compact, moving through soils with more or
less resistance. Justesen v. Olsen, 40 P.2d 802,
810, 86 Utah, 158.
ARTESIAN WELL. A well bored through impermeable strata into a subterranean body of
water which, being under pressure, rises naturally
to the surface. Loosely, any deep bored well.
6 C.J.S. p. 773.
ARTHEL, ARDHEL, or ARDDELIO. To avouch;
as if a man were taken with stolen goods in his
possession he was allowed a lawful arthel, e.,
vouchee, to clear him of the felony; but provision
was made against it by 28 Hen. VIII, c. 6. Blount,
ARTICLE. A separate and distinct part of an instrument or writing comprising two or more particulars; one of several things presented as connected or forming a whole. Carter v. Railroad
Co., 126 N.C. 437, 36 S.E. 14. A particular object
or substance, a material thing or a class of things.
People v. Epstean, 170 N.Y.S. 68, 73, 102 Misc. 476.
Material or tangible object. Gayer v. Whelan, 59
3. A system of . rules established by legal authority; as articles of war, articles of the navy,
articles of faith. (See infra.)
4. A contractual document executed between
parties, containing stipulations or terms of agreement; as articles of agreement, articles of partnership,
5. • A naval term meaning employment contract.
South Chicago Coal & Dock Co. v. Bassett, C.C.A.
Ill., 104 F.2d 522, 526.
.6. In chancery practice. A formal written
statement of objections filed by a party, after
depositions have been taken, showing ground for
discrediting the witnesses.
7. In ecclesiastical law. A complaint in the
form of a libel exhibited to an ecclesiastical court.
See Article.
ARTICLES APPROBATORY, In Scotch law. That
part of the proceedings which corresponds to the
answer to the charge in an English bill in chancery. Paters. Comp.
ARTICLES IMPROBATORY. In Scotch law.
Articulate averments setting forth the facts relied
upon. Bell. That part of the proceedings which
corresponds to the charge in an English bill in
chancery to set aside a deed. Paters. Comp. The
answer is called "articles approbatory."
ARTICLES, LORDS OF. A committee of the
Scottish parliament, which, in the mode of its election, and by the nature of its powers, was calculated to increase the influence of the' crown, and
to confer upon it a power equivalent to that of a
negative before debate. This system appeared inconsistent with the freedom of parliament, and at
143
ARTICLES
the revolution the convention of estates declared
it a grievance, and accordingly it was suppressed
by Act 1690, c. 3. Wharton.
ARTICLES OF AGREEMENT. A written memorandum of the terms of an agreement.
It is a common practice for persons to enter into articles
of agreement, preparatory to the execution of a formal
deed, whereby it is stipulated that one of the parties shall
convey to the other certain lands, or release his right to
them, or execute some other disposition of them.
When persons form voluntary associations for religious,
literary, social, or other purposes, and adopt rules by
which to regulate their conduct and measure their rights,
by the provisions of which members may be admitted and
expelled, such rules are articles of agreement, to which all
who have become members are parties, and by which they
must be governed in their relations to the associations.
Brown v. Harris 'County Medical Soc., Tex.Civ.App., 19-1 S.
W. 1179, 1180.
ARTICLES OF ASSOCIATION, OR OF INCORPORATION. Articles subscribed by the members
of a joint-stock company or corporation organized
under a general law, and which create the corporate union between them. Such articles are in
the nature of a partnership agreement, and commonly specify the form of organization, amount
of capital, kind of business to be pursued, location
of the company, etc. Articles of association are
to be distinguished from a charter, in that the latter is a grant of power from the sovereign or the
legislature.
ARTICLES OF CONFEDERATION. The name of
the instrument embodying the compact made between the thirteen original states of the Union,
before the adoption of the present constitution.
ARTICLES OF FAITH. In English law. The
system of faith of the Church of England, more
commonly known as the "Thirty-Nine Articles."
ARTICLES OF IMPEACHMENT. A formal written allegation of the causes for impeachment;
answering the same office as an indictment in an
ordinary criminal proceeding.
ARTICLES OF INCORPORATION. The instrument by which a private corporation is formed and
organized under general corporation laws. People
v. Golden Gate Lodge, 128 Cal. 257, 60 P. 865. See
Articles of Association.
ARTICLES OF PARTNERSHIP. A written agreement by which the parties enter into a copartnership upon the terms and conditions therein stipulated.
ARTICLES OF RELIGION. In English ecclesiastical law. Commonly called the "Thirty-Nine
Articles ;" a body of divinity drawn up by the convocation in 1562, and confirmed by James I.
ARTICLES OF ROUP. In Scotch law. The terms
and conditions under which property is sold at
auction.
ARTICLES OF SET. In Scotch law. An agreement for a lease. Paters. Comp.
the purpose of adjusting and settling the great
questions of cognizance then existing between the
ecclesiastical and temporal courts. 2 Reeve, Hist.
Eng.Law, 291-296.
ARTICLES OF THE NAVY. A system of rules
prescribed by act of parliament for the government of the English navy; also, in the United
States, there are articles for the government of
the navy.
ARTICLES OF THE PEACE. A complaint made
or exhibited to a court by a person who makes
oath that he is in fear of death or bodily harm
from some one who has threatened or attempted
to do him injury. The court may thereupon order
the person complained of to find sureties for the
peace, and, in default, may commit him to prison.
4 Bl.Comm. 255.
ARTICLES OF UNION, In English law. Articles
agreed to, A. D. 1707, by the parliaments of England and Scotland, for the union of the two kingdoms. They were twenty-five in number. 1 BL
Comm. 96.
ARTICLES OF WAR. Codes framed for the government of a nation's army or navy.
ARTICULATE ADJUDICATION, In Scotch law.
Where the creditor holds several distinct debts, a
separate adjudication for each claim is thus called.
ARTICULATED PLEADING. The stating in separate paragraphs, separately numbered, of each
material fact of the petition. Newspaper Feature
Service v. Southern Pub. Co., 140 La. 702, 73 So.
777.
ARTICULATELY. Article by article; by distinct
clauses or articles; by separate propositions.
ARTICULI. Lat. Articles; items or heads. A
term applied to some old English statutes, and
occasionally to treatises.
ARTICULI CLERI. "Articles of the clergy" (q.
v.). See Circumspecte Agatis,
ARTICULI DE MONETA. Articles concerning
money, or the currency. The title of a statute
passed in the twentieth year of Edward I. 2
Reeve, Hist.Eng.Law, 228; Crabb, Eng.Law (Amer.
Ed.) 167.
ARTICULI MAGN1E CHARTAE. The preliminary
articles, forty-nine in number, upon which the
Magna Charta was founded.
ARTICULI SUPER CHARTAS. Articles upon the
charters. The title of a statute passed in the
twenty-eighth year of Edward I. st. 3, confirming
or enlarging many particulars in Magna Charta,
and the Charta de Foresta, and appointing a
method for enforcing the observance of them, and
for the punishment of offenders. 2 Reeve, Hist.
Eng.Law, 103, 233.
ARTICLES OF THE CLERGY. The title of a stat- ARTICULO MORTIS. (Or more commonly in
articulo mortis.) At the point of death; in the
ute passed in the ninth year of Edward II. for
144
AS
article of death, which means at the moment of
death; in the last struggle or agony. Succession
of Villa, 132 La. 714, 61 So. 765, 770.
ARTIFICE. An ingenius contrivance or device of
some kind, and, when used in a bad sense, it corresponds with trick or fraud. United States v.
Corlin, D.C.Cal., 44 F.Supp. 940, 943. It implies
craftiness and deceit, and imports some element
of moral obliquity. Davis v. Boston Elevated Ry.
Co., 235 Mass. 482, 126 N.E. 841, 845; Finch v.
Gibson, 140 Tenn. 134, 203 S.W. 759, 761.
A representation contrary to a well-known fact, such as
a representation that pregnancy will not result from natural sexual intercourse, will not constitute artifice, deception, or promises.
ARTIFICER. One who buys goods in order to reduce them, by his own art or industry, into other
forms, and then to sell them. Lansdale v. Brashear, 3 T.B.Mon. (Ky.) 335.
One who is actually and personally engaged or
employed to do work of a mechanical or physical
character, not including one who takes contracts
for labor to be performed by others. Ingram v.
Barnes, 7 El. & Bl. 135; Chawner v. Cummings,
8 Q.B. 321.
One who is master of his art, and whose employment consists chiefly in manual labor. Wharton; Cunningham.
ARTIFICIAL. Is in opposition to the word "natural". California Casualty Indemnity Exchange
v. Industrial Accident Commission of California,
13 Ca1.2d 529, 90 P.2d 289; Created by art, or by
law; existing only by force of or in contemplation of law.
ARTIFICIAL FORCE. In patent law. A natural
force so transformed in character or energies by
human power as to possess new capabilities of action; this transformation of a natural force into
a force practically new involves a true inventive
act. Wall v. Leck, 60 Fed. 555, 13 C.C.A. 630.
ARTIFICIAL MEMBER OF BODY. A substitute
for, and not a mere aid to, a natural part, organ,
li mb, or other separable part of body. California Casualty Indemnity Exchange v. Industrial
Accident Commission, Cal.App., 82 P.2d 1115, 1116.
ARTIFICIAL PERSONS. Persons created and
devised by human laws for the purposes of society and government, as distinguished from natural
persons. Corporations are examples of artificial
persons. 1 Bl.Comm. 123. Chapman v. Brewer,
43 Neb. 890, 62 N.W. 320, 47 Am.St.Rep. 779.
ARTIFICIAL PRESUMPTIONS. Also called "legal presumptions;" those which derive their force
and effect from the law, rather than their natural tendency to produce belief. 3 Starkie, Ev.
1235. Gulick v. Loder, 13 N.J.Law, 72, 23 Am.Dec.
711.
ARTIFICIAL WATER COURSE. See Water
Course.
ARTIFICIALLY. Technically; scientifically; using terms of art. A will or contract is described
as "artificially" drawn if it is couched in apt and
technical phrases and exhibits a scientific arrangement.
ARTIFICIALLY DEVELOPED WATER. "Artificially developed water," to which one may acquire right superior to adjudicated rights of
earlier appropriators of natural waters of stream
into which he turns it, is water produced and contributed by him, which would not have reached
stream if left to flow in accordance with natural
laws. C.L. § 1766. In re Nix, 45 P.2d 176, 178, 96
Colo. 540.
ARTISAN. One skilled in some kind of mechanical craft or art; a skilled mechanic. O'Clair v.
Hale, 25 Misc.Rep. 31; Warner Memorial University v. Ritenour, Tex.Civ.App., 56 S.W.2d 236, 237.
As used in lien statutes, the term includes the architect,
Kansas City Southern Ry. Co. v. Wallace, 38 Oki. 233, 132
P. 908, 911, 46 L.R.A.,N.S., 112, but not a subcontractor,
Huffman v. McDonald, Tex.Civ.App., 261 S.W. 146, 147.
An optometrist is not an "artisan." Swanz v. Clark, 71
Mont. 385, 229 P. 1108.
ARUBA. An old English law term, signifying a
day's work in plowing.
ARVIL–SUPPER. A feast or entertainment made
at a funeral in the north of England; arvil bread
is bread delivered to the poor at funeral solemnities, and arvil, arval, or arfal, the burial or funeral rites. Cowell.
AS or A/S or A/s. Account sales; also after
sight, at sight.
AS. Lat. In the Roman and civil law. A pound
weight; and a coin originally weighing a pound,
(called also "libra") divided into twelve parts,
called "uncice,"
The parts were reckoned (as may be seen in the law,
Servum de hceredibus, Inst. lib. xiii. Pandect) as follows :
uncia, 1 ounce ; sextans, 2 ounces ; triens, 3 ounces; quadrans, 4 ounces ; quincunx, 5 ounces; semis, 6 ounces;
septunx, 7 ounces; bes, 8 ounces; dodrans, 9 ounces ; dextans, 10 ounces ; deunx, 11 ounces.
Any integral sum, subject to division in certain
proportions.
Frequently applied in the civil law to inheritances ; the
whole inheritance being termed "as," and its several proportionate parts "sextans," "quadrans," etc. Burrill.
The term "as," and the multiples of its uncice,
were also used to denote the rates of interest.
2 Bl.Comm. 462, note m.
AS. Used as an adverb, etc., means like, similar
to, of the same kind, in the same manner, in the
manner in which. Van Pelt v. Hilliard, 75 Fla.
792, 78 So. 693, 697, L.R.A.1918E 639; Price v.
Skylstead, 69 Mont. 453, 222 P. 1059, 1060. It may
also have the meaning of because, since, or it beARTIFICIAL SUCCESSION. The succession being the case that; State v. Rudman, 126 Me. 177,
tween predecessors and successors in a corpora136 A. 817, 819; in the character or under the
tion aggregate or sole. Thomas v. Dakin, 22
name of; State v. Blue, 134 La. 561, 64 So. 411,
Wend. (N.Y.) 100.
414; when; Shane Bros. & Wilson Co. v. Barrett,
Black's Law Dictionary Revised 4th Ed.--10
145
AS
71 Ind.App. 313, 124 N.E. 780, 781; With significance of in degree, to that extent, so far. Snyder
and Blankfard Co., v. Farmers Bank of Tifton,
178 Md. 601, 16 A.2d 837, 841.
AS AGAINST; AS BETWEEN. These words contrast the relative position of two persons, with a
tacit reference to a different relationship between
one of them and a third person. For instance, the
temporary bailee of a chattel is entitled to it as
between himself and a stranger, or as against a
stranger; reference being made by this form of
words to the rights of the bailor. Wharton.
AS FAR AS HUMAN CARE AND FORESIGHT
WILL GO. Means for utmost care and diligence
of very cautious persons, and makes one responsible for even slightest neglect. Kline v. Santa Barbara Consol. Ry. Co., 90 P. 125, 127, 150 Cal. 741.
AS IS. A sale of goods by sample "as is" requires
that the goods be of the kind and quality represented, even though they be in a damaged condition. Schwartz v. Kohn, Sup., 155 N.Y.S. 547, 548.
Use of expression in sales agreement that goods
are sold "as is" implies that buyer is taking delivery of goods in some way defective and upon
express condition that he must trust to his own
examination. Roby Motors Co. v. Cade, La.App.,
158 So. 840, 841.
AS LONG AS. The phrase "as long as life doth
last," in a will, is tantamount to "forever." In
re Brown, 119 Kan. 402, 239 P. 747.
AS OF COURSE. Under a statute providing that
an attachment will be dissolved, "as of course,"
upon defendant's entering his appearance and filing his answer, the quoted words mean when
asked by defendant. Pitman v. West, 198 Mo.App.
92, 199 S.W. 756, 757.
AS PER. "As per" is a sort of law and business
term which is hardly susceptible of literal translation, but which is commonly understood to mean,
"in accordance with," or "in accordance with the
terms of," or "as by the contract authorized."
Continental Bank & Trust Co. v. Times Pub. Co.,
142 La. 209, 76 So. 612, 617, L.R.A.1918B, 632.
AS SOON AS. This term has a relative meaning
according to the thing which is to be done. Eichelbaum & Smith v. Bishop, 75 Pa.Super.Ct. 528,
529. It often denotes merely a reasonable time;
Childers v. Brown, 81 Or. 1, 158 P. 166, 168, Ann.
Cas.1918D, 170; and it may be the equivalent of
"whenever"; People v. Merhige, 180 N.W. 418,
422, 212 Mich. 601. Sometimes it means immediately. Columbia Digger Co. v. Rector, D.C.S.D.,
215 F. 618, 630.
AS SOON AS MAY BE. Promptly and with due
diligence; as soon as was reasonably possible;
within a reasonable time; as soon as possible;
forthwith; as soon as they conveniently can.
George A. Fuller Co. v. Jersey City, 21 N.J.Misc.
38, 29 A.2d 720, 722.
as the shipment of goods, these words mean merely within a reasonable time. Birmingham Paper
Co. v. Holder, 24 Ga.App. 630, 101 S.E. 692; National Cash Register Co. v. McCann, 140 N.Y.S.
916, 920, 80 Misc. 165 ("as soon as possible" requires a much more speedy fulfillment than within
a reasonable time).
AS SOON AS PRACTICABLE. Means reasonable
time. Callaway v. Central Surety & Insurance
Corporation, C.C.A.Tex., 107 F.2d 761, 762; London
Guarantee & Accident Co. v. Shafer, D.C.Ohio, 35
F.Supp. 647, 649; London Guarantee & Accident
Co. v. Shafer, D.C.Ohio, 32 F.Supp. 905, 908; Unverzagt v. Prestera, 13 A.2d 46, 48, 339 Pa. 141.
These words are not synonymous with "as soon as possible" ; they mean ordinarily as soon as reasonably can be
expected. Texas Employers' Ins. Ass'n v. Mummey, Tex.
Civ.App., 200 S.W. 251, 253; or "in due time", Texas
Employers' Ins. Ass'n v. Mummey, Tex.Civ.App., 200 S.W.
251, 252. But the words have also been construed as practically synonymous with speedily. Roberson v. Weaver,
145 Ga. 620, 89 S.E. 769, 772.
AS SPEEDILY AS POSSIBLE. Means within reasonable time or without unreasonable delay, having regard to all the circumstances of the case
and the things to be done. Tatum v. Levi, 117 Cal.
App. 83, 3 P.2d 963, 967.
AS SUCH. When used to give some example of a
rule, is never exclusive of other cases which that
rule is made to embrace. Dinnat v. Succession of
Lewis, 8 La.App. 820, 821.
ASCEND. To go up; to pass up or upwards; to
go or pass in the ascending line. 4 Kent, Comm.
393, 397.
ASCENDANTS. Persons With whom one is related in the ascending line; one's parents, grandparents, great-grandparents, etc.
ASCENDIENTES. In Spanish law. Ascendants;
ascending heirs; heirs in the ascending line.
Schm.Civil Law, 259.
ASCENT. Passage upwards; the transmission of
an estate from the ancestor to the heir in the ascending line. See 4 Kent, Comm. 393, 397.
ASCERTAIN. To fix; to render certain or definite; to estimate and determine; to clear of doubt
or obscurity. Pughe v. Coleman, Tex.Civ.App., 44
S.W. 578. To insure as a certainty. United States
v. Foster, C.C.A.Iowa, 131 F.2d 3, 7. To find out
by investigation, U. S. v. Carver, 43 S.Ct. 181, 182,
260 U.S. 482, 67 L.Ed. 361. Sometimes it means
to "assess", Commonwealth v. Deford Co., 137 Va.
542, 120 S.E. 281, 285; or to "hear, try, and determine," In re Higgins' Estate, 143 N.Y.S. 552,
556, 81 Misc. 579.
ASCERTAINED AS AFORESAID. Manner theretofore prescribed. State ex rel. Walker v. Harrington, Del., 30 A.2d 688, 693, 3 Terry 246.
ASCRIPTITIUS (or ASCRIPTITIUS). In Roman
law. A foreigner who had been registered and
AS SOON AS POSSIBLE. When used with ref- naturalized in the colony in which he resided.
erence to the time of performing some act, such
Cod. 11, 47.
146
ASSAULT
A man bound to the soil but not a slave. 2
Holdsw.Hist.E.L. 217. See Adscriptitii.
ASCUN, or ASCUNS. L. Fr. Any; any one;
some. Adams Gloss.
ASESINATO. In Spanish law, murder. The term
is said to be derived from the "assassins" of Syria.
Escriche Diccionario. The offense corresponds
closely to the common-law crime of murder in the
first degree. U. S. v. Alias, 18 Philippine 453, 455;
U. S. v. Pico, 18 Philippine 386, 388.
ASEXUALIZATION. See Vasectomy.
ASIDE. On one side; apart. To set aside. To
annul; to make void. State v. Primm, 61 Mo. 171.
ASK. In an affidavit wherein affiant asks that
a cause be reinstated and set down for trial,
"asks" is practically synonymous with "moves."
Harris v. Chicago House-Wrecking Co., 314 Ill. 500,
145 N.E. 666, 669.
ASPECT. View; object; possibility. Implies the
existence of alternatives. Used in the phrases
"bill with a double aspect" and "contingency with
a double aspect."
ASPERSIONS. "Aspersions" may mean the making of calumnious report or may mean nothing
more than criticism or censure. Fitts v. Davis,
269 F. 1018, 1019, 50 App.D.C. 234.
ASPHALT. A brown to black, solid bituminous
substance occurring native at the Dead Sea, in
Trinidad, and elsewhere, and also obtained as a
residue from petroleum, coal tar, lignite tar, etc.,
and consists chiefly of a mixture of hydrocarbons
and varies from hard and brittle to plastic forms.
Asphalt Revetment Co. v. United States, 48 F.
Supp. 520, 523, 98 Ct.C1. 289.
ASPHYXIA. Apparent death, suspended animation, in living organism due to deficiency of oxygen and excess of carbon dioxide in the blood.
Levinson v. Reliance Life Ins. Co. of Pittsburgh,
Pa., 184 Md. 453, 41 A.2d 485, 487. Safe Deposit
& Trust Co. of Baltimore v. New York Life Ins.
Co., D.C.Md., 14 F.Supp. 721, 723.
ASPHYXIA CARBONICA. A suffocation from inhalation of coal gas, water gas, or carbon monoxide. Levinson v. Reliance Life Ins. Co. of Pittsburgh, Pa., Md., 184 Md. 453, 41 A.2d 485, 487.
ASPHYXIATION. A state of asphyxia. Stone v.
Physicians Casualty Ass'n of America, 130 Neb.
769, 266 N.W. 605, 607.
ASPIRIN. A coal tar product commonly kept in
drug stores and sold for medicinal purposes. It
is not a proprietary or patent medicine, but is a
drug or medicine, within a statute prohibiting retailing by one not a registered pharmacist. State
v. Zotalis, 172 Minn. 132, 214 N.W. 766, 767. People v. Garcia, 1 Cal.App.2d 761, 32 P.2d 445, 447.
State v. Jewett Market Co., 209 Iowa, 567, 228
N.W. 288, 289.
ASPORTATION. The removal of things from one
place to another. The carrying away of goods ;
one of the circumstances requisite to constitute
the offense of larceny. 4 Bl.Comm. 231. Rex v.
Walsh, 1 Moody, Cr.Cas. 14, 15. Any appreciable
changing of the location of the property involved
with felonious intent. People v. Ashworth, 222
N.Y.S. 24, 27, 220 App.Div. 498; Banks v. State, 133
Ark. 169, 202 S.W. 43.
To constitute "asportation," the thing taken must have
been in entire or absolute possession of taker. Adams v.
Commonwealth, 153 Ky. 88, 154 S.W. 381, 44 L.R.A.,N.S.,
637. But goods need not be removed from owner's premises, but act of thief in putting property into sack which
he carries is sufficient. 21 Okl.St.Ann. § 1701. Brinkley v.
State, 60 Okl.Cr. 106, 61 P.2d 1023, 1025. The slightest
removal of goods from the place where the owner placed
them or wanted them to be is sufficient. Driggers v. State,
118 So. 20, 21, 96 Fla. 232.
ASPORTAVIT. He carried away. Sometimes
used as a noun to denote a carrying away. An
"asportavit of personal chattels." 2 H.B1. 4.
ASSACH. In old Welsh law. An oath made by
compurgators. Brown.
ASSART. In English law. The offense committed in the forest, by pulling up the trees by the
roots that are thickets and coverts for deer, and
making the ground plain as arable land. It differs from waste, in that waste is the cutting down
of coverts which may grow again, whereas assart
is the plucking them up by the roots and utterly
destroying them, so that they can never afterward
grow. This is not an offense if done with license
to convert forest into tillage ground. Consult
Manwood's Forest Laws, pt. I, p. 171. Wharton.
See Essarter.
ASSART RENTS. Rents paid to the Crown for
assarted lands.
ASSASSINATION. Murder committed for hire,
without provocation or cause of resentment given
to the murderer by the person upon whom the
crime is committed. Ersk.Inst. 4, 4, 45. A murder committed treacherously or by stealth or surprise, or by lying in wait. Sorrell v. State, 135
Tex.Cr.R. 535, 120 S.W.2d 1058, 1059.
ASSATH. An ancient custom in Wells, by which
a person accused of crime could clear himself by
the oaths of three hundred men. It was abolished
by St. 1 Hen. V. c. 6. Cowell; Spelman.
AssAxaz . An intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward person of another, under
such circumstances as create well-founded fear of
imminent peril, coupled with apparent present
ability to execute attempt, if not prevented. State
v. Staw, 97 N.J.L. 349, 116 A. 425; Naler v. State,
148 So. 880, 25 Ala.App. 486.
Intention to harm is of the essence, Raefeldt v. Koenig,
152 Wis. 459, 140 N.W. 56, 57, L.R.A.1918E, 1052; but.geperal malevolence or recklessness is sufficient, State v. Fine,
324 Mo. 19 ,
. ►f
,
;
ence str ing intentionally,
or by driving machine in reckless disregard of human life
and safety is sufficient. Webb v. State, 68 Ga.App. 466, 23
S.E.2d 578, 580. It i
. o of
Wit. People v. Dong Pok Yip, 164 Cal. 143, 127 P. 1031,
147
ASSAULT
1032; hence operation without consent is assau . Dicenzo
v. Berg, a. 16 A.2d 15, 6. ssau t must have
been unwarranted, but it need not have been committed in
anger. McGovern v. Weis, 39 N.Y.S.2d 115, 118, 265 App.
Div. 367; hence self-defense is not "assault". City of Gaffney v. Putnam, 197 S.C. 237, 15 S.E.2d 13. 0, 131. Mere
words, although provoking or insulting, are insufficient;
Western Union Telegraph Co. v. Hill, C.C.A.Ala., 67 F.2d
487; Dahlin v. Fraser, 206 Minn. 476, 288 N.W. 851, 852.
In some jurisdictions degrees of the offense are established, as first degree, State v. Laughlin, Mont., 73 P.2d
718, 721; second degree, State v. Reynolds, 94 Wash. 270,
162 P. 358, 359; and third degree, State v. Steele, 83 Wash.
470, 145 P. 581; State v. Laughlin., 105 Mont. 490, 73 P.2d
718, 721.
Aggravated Assault
One committed with the intention of committing some additional crime; or one attended with
circumstances of peculiar outrage or atrocity.
This class includes assault with a dangerous or
deadly weapon; Brinkley v. State, 82 Tex.Cr.R.
150, 198 S.W. 940; assault upon infants or females, if it create a sense of shame; Wren v.
State, 27 Ariz. 491, 232 P. 398; and assault of
lust, meaning an assault, less than felonious, with
intent to have improper sexual connection; State
v. Eslick, Mo.App., 216 S.W. 974, 975.
ASSAULT WITH INTENT TO COMMIT MANSLAUGHTER. An unlawful assault committed
in such manner and with such means as would
have resulted in commission of crime of manslaughter if person assaulted had then and there
died from effects of assault. Lassiter v. State, 98
Fla. 370, 123 So. 735; State v. Crutcher, 1 N.W.2d
195, 199, 231 Iowa 418.
ASSAULT WITH INTENT TO COMMIT MURDER. To constitute this assault and specific intent to kill, actuated by malice aforethought, must
concur. Perez v. State, 114 Tex.Cr.R. 473, 22 S.
W.2d 309, 310; Griffin v. State, 177 S.E. 511, 50
Ga.App. 213.
•
ASSAULT WITH INTENT TO COMMIT RAPE.
Is constituted by the existence of the facts which
bring the offense within the definition of an assault, coupled with an intention to commit the
crime of rape. Steptoe v. State, 133 Tex.Cr.R. 194,
115 S.W.2d 916, 917; State v. Jackson, 200 La.
432, 8 So.2d 285, 286.
ASSAULT WITH INTENT TO COMMIT ROBBERY. Involves an assault as well as an intent
to commit robbery. Foss v. State, 36 Ohio App.
417, 173 N.E. 296, 297.
Secret Assault
Under a North Carolina statute, to warrant conviction for malicious, "secret assault," state must
prove all essential elements of crime, namely,
malice, use of deadly weapon in secret manner,
with intent to kill. State v. Kline, 190 N.C. 177,
129 S.E. 417, 418.
It is not essential, however, that the person assaulted be
unconscious of the presence of his adversary, though the
purpose of such adversary must not be known. State v.
Oxendine, 187 N.C. 658, 122 S.E. 568, 571.
Simple Assault
One committed with no intention to do any other injury. An offer or attempt to do bodily harm
which falls short of an actual battery; an offer
or attempt to beat another, but without touching
him; for example, a blow delivered within striking distance, but which does not reach its mark.
Norton v. State, 14 Tex. 393. Also, sometimes,
the use of physical violence upon another, without circumstances of aggravation. Ratcliff v.
State, 106 Tex.Cr.R. 37, 289 S.W. 1072, 1074. "Simple assault and battery" is an unlawful act of violent injury to another, unaccompanied by any circumstances of aggravation. State v. Jones, 133
S.C. 167, 130 S.E. 747, 751. And see State v. Staw,
97 N.J.L. 349, 116 A. 425.
ASSAY. The proof or trial, by chemical experiments, of the purity or fineness of metals,—particularly of the precious metals, gold and silver.
West v. State, 140 Tex.Cr.R. 493, 145 S.W.2d 580,
584.
A trial of weights and measures by a standard;
as by the constituted authorities, clerks of markets, etc. Reg.Orig. 280.
A trial or examination of certain commodities,
as bread, cloths, etc. Cowell; Blount. See Annual Assay.
ASSAY OFFICE. The staff of persons by whom
(or the building or department in which) the
process of assaying gold and silver, required by
government, incidental to maintaining the coinage, is conducted.
ASSAYER. One whose business it is to make assays of the precious metals. West v. State, 140
.
Tex.Cr.R. 493, 145 S.W.2d 580, 584.
ASSAYER OF THE KING. An officer of the royal
mint, appointed by St. 2 Hen. VI. c. 12, who received and tested the bullion taken in for coining;
also called "assayator. regis." Cowell; Termes
de la Ley.
ASSECURARE. To assure, or make secure by
pledges, or any solemn interposition of faith.
Cowell; Spelman.
ASSECURATION. In European law. Assurance;
insurance of a vessel, freight, or cargo. Ferriêre.
ASSECURATOR. In maritime law. An insurer,
(aversor periculi.) Locc. de Jure Mar. lib. 2, c.
5, § 10.
ASSEDATION. In Scotch law. An old term, used
indiscriminately to signify a lease or feu-right.
Bell; Ersk.Inst. 2, 6, 20.
ASSEMBLAGE. A collection of persons. Also
the act of coming together. State v. Breen, 110
Kan. 817, 205 P. 632, 633. Public address upon public grounds. In re Whitney, 57 Cal.App.2d 167, 134
P.2d 516, 521.
ASSEMBLE. When applied to a machine, "assemble" means to collect or gather together the
parts and place them in their proper relation to
148
ASSESSMENT
each other to constitute the machine. Citizens'
Vat. Bank v. Bucheit, 14 Ala.App. 511, 71 So. 82,
38.
&SSEMBLY. The concourse or meeting together
)f a considerable number of persons at the same
place. Also the persons so gathered.
Popular assemblies are those where the people
meet to deliberate upon their rights; these are
guaranteed by the constitution. Const.U.S.Amend.
art. 1.
Political assemblies are those required by the
constitution and laws: for example, the general
assembly.
The lower or more numerous branch of the
legislature in many of the states is also called the
"Assembly" or "House of Assembly," but the term
seems to be an appropriate one to designate any
political meeting required to be held by law.
ASSEMBLY GENERAL. The highest ecclesiastical court in Scotland, composed of a representation of the ministers and elders of the church,
regulated by Act 5th Assem. 1694.
ASSEMBLY, UNLAWFUL. In criminal law. The
assembling of three or more persons together to
do an unlawful act, who separate without actually
doing it, or making any motion towards it. 3 Inst.
176; 4 Bl.Comm. 146. It differs from a riot or
rout, because in each of the latter cases there
is some act done besides the simple meeting. 1
Bish.Crim.Law, § 535; 2 Bish.Crim.Law, §§ 1256,
1259.
ASSENT. Compliance; approval of something
done; a declaration of willingness to do something in compliance with a request. Norton v.
Davis, 83 Tex. 32, 18 S.W. 430; Appeal of Pittsburgh, 115 Pa. 4, 7 A. 778; To approve, ratify
and confirm. People v. Consolidated Indemnity
and Ins. Co., 233 App.Div. 74, 251 N.Y.S. 566, 569.
It implies a conscious approval of facts actually
known, as distinguished from mere neglect to ascertain facts. White-Wilson-Drew Co. v. LyonRatcliff Co., C.C.A.I11., 268 F. 525, 526. Sometimes
it is equivalent to "authorize." Hagerla v. Mississippi River Power Co., D.C.Iowa, 202 F. 776, 783.
In the sense of the law is a matter of overt acts,
not of inward unanimity in motives, design or the
interpretation of words. Triboro Coach Corporation v. New York State Labor Relations Board,
261 App.Div. 636, 27 N.Y.S.2d 83, 85.
"Assent" is an act of understanding, while "consent" is
an act of the will or feelings. Klundby v. Hogden, 202
Wis. 438, 232 N.W. 858, 860, 73 A.L.R. 648. It means passivity or submission which does not include consent. Perryman v. State, 63 Ga.App. 819, 12 S.E.2d 388, 390.
Mutual Assent
The meeting of the minds of both or all the
parties to a contract; the fact that each agrees
to all the terms and conditions, in the same sense
and with the same meaning as the others. Insurance Co. v. Young, 23 Wall. 107, 23 L.Ed. 152.
ASSERT. To state as true; declare; maintain.
To assert against another has probably a prima
facie meaning of a contradiction of him, but the
context or circumstances may show that it connotes a criminatory charge; 7 L.J.Ex. 268.
ASSERTORY COVENANT. One which affirms
that a particular state of facts exists; an affirming promise under seal.
ASSERTORY OATH. See Oath.
ASSESS. To ascertain; fix the value of. State
ex rel. Ambrose v. Trimble, 304 Mo. 533, 263 S.W.
840, 842. In re Calhoun Beach Holding Co., 205
Minn. 582, 287 N.W. 317, 322. To fix the amount
of the damages or the value of the thing to be ascertained. New Orleans Terminal Co. v. Dixie
Rendering, La.App., 179 So. 98, 100. To impose
a pecuniary payment upon persons or property;
People v. Priest, 169 N.Y. 435, 62 N.E. 568. To
ascertain, adjust, and settle the respective shares
to be contributed by several persons toward an
object beneficial to them all, in proportion to the
benefit received.
In connection with taxation of property, means
to make a valuation and appraisal of property,
usually in connection with listing of property
liable to taxation, and implies the exercise of discretion on the part of officials charged with duty
of assessing, including the listing or inventory of
property involved, determination of extent of
physical property, and placing of a value thereon.
Montana-Dakota Power Co. v. Weeks, D.C.N.D., 8
F.Supp. 935, 936. To tax. Johnson City v. Clinchfield R. Co., 163 Tenn. 332, 43 S.W.2d 386, 387.
To adjust or fix the proportion of a tax which each person, of several liable to it, has to pay; to apportion a tax
among several ; to distribute taxation in a proportion
founded on the proportion of burden and benefit. Seymour
v. Peters, 67 Mich. 415, 35 N.W. 62. To calculate the rate
and amount of taxes. Flanigan v. Police Jury of Jackson
Parish, 145 La. 613, 82 So. 722, 726.
"Assess" is sometimes used as synonymous with "levy";
Lehigh Valley R. Co. v. State Board of Taxes and Assessment, 101 N.J.Law, 298, 128 A. 432, 433; and is sometimes
distinguished therefrom; City of Portland v. Portland Ry.
Light & Power Co., 80 Or. 271, 156 P. 1058, 1064.
ASSESSED. Is equivalent to imposed. Town of
Brandon v. Harvey, 105 Vt. 435, 168 A. 708, 710.
To value or appraise. Abrams v. City and
County of San Francisco, 48 Cal.App.2d 1, 119 P.2d
197, 199.
Express Assent
That which is openly declared.
ASSESSED VALUATION. Value on each unit of
which a prescribed amount must be paid as property taxes. In re Calhoun Beach Holding Co., 205
Minn. 582, 287 N.W. 317, 322.
Implied Assent
That which is presumed by law.
ASSESSMENT. In a general sense, the process
of ascertaining and adjusting the shares respec1 49
ASSESSMENT
tively to be contributed by several persons
towards a common beneficial object according to
the benefit received.
Taxation
The listing and valuation of property for the
purpose of apportioning a tax upon it, either according to value alone or in proportion to benefit
received. Also determining the share of a tax
to be paid by each of many persons; or apportioning the entire tax to be levied among the different
taxable persons, establishing the proportion due
from each. Town of Albertville v. Hooper, 196
Ala. 642, 72 So. 258. Northwestern Imp. Co. v.
Henneford, 184 Wash. 502, 51 P.2d 1083, 1085.
Iowa Nat. Bank. v. Stewart, 214 Iowa 1229, 232
N.W. 445, 451. It fixes the liability of the taxpayer and ascertains the facts and furnishes the
data for the proper preparation of the tax rolls.
Dallas Joint Stock Land Bank of Dallas v. State,
Tex.Civ.App., 118 S.W.2d 941, 942.
"Assessment" and "levy" are frequently used interchangeably. Huyler v. Huyler's, 44 N.Y.S.2d 255, 257.
Though properly speaking it does not include the levy of
taxes. Commissioner of Internal Revenue v. Patrick Cudahy Family Co., C.C.A.7, 102 F.2d 930, 932. Assessment is
also popularly used as synonym for taxation in general, the
authorative imposition of a rate or duty to be paid, but
in its technical signification it is only taxation for a special
purpose or local improvement, local taxation, as distinguished from general taxation ; taxation on principle of
apportionment according to the relation between burden
and benefit; whole taxes are impositions for purpose of
general revenue. Collister v. Kovanda, 51 Ohio App. 43,
199 N.E. 477, 478; Home Owners' Loan Corporation v.
Tyson, 133 Ohio St. 184, 12 N.E.2d 478, 480; Atlantic
Coast Line R. Co. v. Town of Ahoskie, 192 N.C. 258, 134
S.E. 653, 654.
An assessment is doubtless a tax, but the term implies
something more; it implies a tax of a particular kind,
predicated upon the principle of equivalents, or benefits,
which are peculiar to the persons or property charged
therewith, and which are said to be assessed or appraised,
according to the measure or proportion of such equivalents; whereas a simple tax is imposed for the purpose of
supporting the government generally, without reference to
any sneci. al advantage which may be supposed to accrue to
the persons taxed. Taxes must be levied, without discrimination, equally upon all the subjects of property ; whilst
assessments are only levied upon lands, or some other
specific property, the subjects of the supposed benefits; to
repay which the assessment is levied. In re Walker River
Irr. Dist., 44 Nev. 321, 195 P. 327, 330.
Corporations
Installments of the money subscribed for shares
of stock, called for from the subscribers by the
directors, from time to time as the company requires money, are called "assessments," or, in
England, "calls." Water Co. v. Superior Court,
92 Cal. 47, 28 Pac. 54, 27 Am.St.Rep. 91; Spangler
v. Railroad Co., 21 Ill. 278; Stewart Publishing
Co., 1 Wash.St. 521, 20 Pac. 605. While the terms
"call" and "assessment" are generally used synonymously, the latter term applies with peculiar aptness to contributions above the par value of stock
or the subscription liability of the stockholders;
Porter v. Northern Fire & Marine Ins. Co., 36 N.D.
199, 161 N.W. 1012, 1014; whereas "call" or "installments" means action of the board of directors
demanding payment of all or portion of unpaid
subscriptions; Seyberth v. American Commander
Min. & Mill. Co., 42 Idaho, 254, 245 P. 392, 395.
It has been said, however, that the superadded liability
of stockholders to creditors, is not in a true sense an
"assessment," but is a "statutory liability." Leach v.
Arthur Sa y . Bank, 203 Iowa, 1052, 213 N.W. 772, 773.
Damages
Fixing the amount of damages to which the successful party in a suit is entitled after an interlocutory judgment has been taken; also the name
given to the determination of the sum which a
corporation proposing to take lands for a public
use must pay 4satisfaction of the demand proved
or the value taken.
Insurance
An apportionment made in general average upon the various articles and interests at risk, according to their value at the time and place of
being in safety, for contribution for damage and
sacrifices purposely made, and expenses incurred
for escape from impending common peril. 2 Phil.
Ins. c. xv.
A sum specially levied in mutual benefit insurance upon a fixed and definite plan within the
limit of the company's or society's fundamental
law of organization to pay losses, or losses and
expenses incurred, being to a certain degree substantially the equivalent of premiums. Beaver
State Merchants' Mut. Fire Ins. Ass'n v. Smith, 97
Or. 579, 192 P. 798, 800. The periodical demands
made by a mutual insurance company, under its
charter and by-laws, upon the makers of premium
notes, are also denominated "assessments." Hill
v. Insurance Co., 129 Mich. 141, 88 N.W. 392.
Meaning "premiums," Ancient Order of United
Workmen of Kansas v. Hobbs, 136 Kan. 708, 18
P.2d 561, 562; and being the consideration for the
insurance contracts. Downing v. School Dist. of
City of Erie, 297 Pa. 474, 147 A. 239, 240.
Mining
"Assessment" as applied to labor on mining
claims is universally understood to mean the annual labor required by Rev.St.U.S. § 2324 (30 U.S.
C.A. § 28), in order to hold the right to the possession of the claim after a discovery and complete location has been made. Smith v. Union Oil
Co., 166 Cal. 217, 135 P. 966, 969. See Assessment
Work.
ASSESSMENT ASSOCIATION. This term, as defined by the Nebraska insurance laws, does not
include an insurance company which requires
the payment of a fixed premium in advance and
provides benefits not in any degree dependent
upon the collection of assessments from other
members, and which does not provide for the levying of extra assessments, if necessary. Western
Life & Accident Co. of Colorado v. State Ins.
Board of Nebraska, 101 Neb. 152, 162 N.W. 530.
ASSESSMENT COMPANY. In life insurance.
A company in which a death loss is met by levy150
ASSETS
ing an assessment on the surviving members of
the association. National Ben. Ass'n v. Clay,
162 Ky. 409, 172 S.W. 922, 923.
ASSESSMENT CONTRACT. One wherein the
payment of the benefit is in any manner or degree dependent on the collection of an assessment
levied on persons holding similar contracts. Folkens v. Insurance Co., 98 Mo.App. 480, 72 S.W. 720.
ASSESSMENT DISTRICT. In taxation. Any
subdivision of territory, whether the whole or
part of any municipality, in which by law a separate assessment of taxable property is made by
the officers elected or appointed therefor. Rev.
Stat.Wis.1898, § 1031 (St.1931, § 70.04).
ASSESSMENT FOR BENEFITS. A burden levied under the power of taxation. Jackson v. City
of Lake Worth, 156 Fla. 452, 23 So.2d 526, 528.
See Tax. Cooper Union for Advancement of
Science and Art v. City of New York, 272 App.
Div. 438, 71 N.Y.S.2d 204, 207.
ASSESSMENT FUND. The assessment fund of
a mutual benefit association is the balance of the
assessments, less expenses, out of which beneficiaries are paid. Kerr v. Ben. Ass'n, 39 Minn. 174,
39 N.W. 312, 12 Am.St.Rep. 631.
ASSESSMENT INSURANCE. Exists when benefit to be paid is dependent upon collection of such
assessments as may be necessary for paying the
amounts to insured. Keen v. Bankers Mut. Life
Co., 230 Mo.App. 1072, 93 S.W.2d 85, 90.
ASSESSMENT LABOR. These words in Act Feb.
12, 1903 (30 U.S.C.A. § 102), providing that such
labor on oil claims may be done on one of a group
of contiguous claims refers to the annual labor required of the locator of a mineral claim after discovery by Rev.St. § 2324 (30 U.S.C.A. § 28), and
not to work before discovery. Union Oil Co. of
California v. Smith, 39 S.Ct. 308, 311, 249 U.S. 337,
63 L.Ed. 635. See Assessment, under the heading
"In Mining."
ASSESSMENT LIST. The list furnished by the
assessor to the board of equalization. Adsit v.
Park, 144 La. 934, 81 So. 430, 434.
ASSESSMENT PERIOD. Means taxable period.
Johnson City v. Clinchfield R. Co., 163 Tenn. 332, 43
S.W.2d 386, 387.
ASSESSMENT ROLL. In taxation. The list or
roll of taxable persons and property, completed,
verified, and deposited by the assessors, not as it
appears after review and equalization. Brady v.
Weissenstein, 260 Mich. 678, 245 N.W. 798, 799.
ASSESSMENT WORK.. Under the mining laws of
the United States, the holder of an unpatented
mining claim on the public domain is required,
in order to hold his claim, to do labor or make improvements upon it to the extent of at least one
hundred dollars in each year.. Rev.St.U.S. § 2324
(30 U.S.C.A. § 28). This is commonly called by
miners "doing assessment work."
ASSESSOR. An officer chosen or appointed to
appraise, value, or assess property.
The assessing power, and not merely the county assessor.
Board of Com'rs of San Miguel County v. Floaten, 66 Colo.
540, 181 P. 122.
A person learned in some particular science of
industry, who sits with the judge on the trial of
a cause requiring such special knowledge and
gives his advice.
In England it is the practice in admiralty business to call
in assessors, in cases involving questions of navigation or
seamanship. They are called "nautical assessors" (q. v.),
and are always Brethren of the Trinity House.
Civil and Scotch Law
Persons skilled in law, selected to advise the
judges of the inferior courts. Bell; Dig. 1, 22;
Cod. 1, 51.
ASSETS. The word, though more generally used
to denote everything which comes to the representatives of a deceased person, yet is by no means
confined to that use, but has come to signify
everything which can be made available for the
payment of debts, whether belonging to the estate
of a deceased person or not. Hence we speak of
the assets of a bank or other monied corporation,
the assets of an insolvent debtor, and the assets
of an individual or private copartnership; and we
always use this word when we speak of the means
which a party has, as compared with his liabilities
or debts. Pelican v. Rock Falls, 81 Wis. 428, 51
N.W. 871.
Bankruptcy
The property or effects of a bankrupt or insolvent, applicable to the payment of his debts.
The term "assets" includes all property of every kind
and nature, chargeable with the debts of the bankrupt,
that comes into-the hands of and under the control of the
signee; and the value thereof is not to be considered a
less sum than that actually realized out of said property,
and received by the assignee for it. In re Taggert, 16
N. B. R. 351, Fed. Cas. No. 13, 725 ; Progressive Building &
Loan Co. v. Hall, C.C.A.Va., 220 F. 45, 46.
Commercial Law
The aggregate of available property, stock in
trade, cash, etc., belonging to a merchant or mercantile company.
The term "assets," as applied to a bank, is broad enough
to cover anything which is or may be available to pay
creditors; but, as usually understood, it refers to the
tangible property of the corporation, and not to the liability of stockholders contingent upon insolvency. Hill v.
Smathers, 173 N.C. 642, 92 S.E. 607, 609; Deariso v. Mobley, 38 Ga.App. 313, 143 S.E. 915, 920. But when the individual liability of stockholders has been enforced by the
superintendent of banks, funds collected by him thereunder are "assets." Bennett v. Wilkes County, 164 Ga. 790,
139 S.E. 566, 568.
But on other hand stockholders' voluntary assessment to
relieve bank or for betterment of stock. Thomson v. Holt,
345 Mo. 296, 132 S.W.2d 974, 977; bank stockholders' ha.
bility, Farmers & Merchants Bank of Morgantown v. Bank
of Masontown, 123 W.Va. 451, 15 S.E.2d 569, 572; and bank
directors' contribution to special bond account to make
good shrinkage in regular bond were held to be assets.
Asher v. West End Bank, 345 Mo. 89, 131 S.W.2d 549, 551.
151
ASSETS
Probate Law
Property of a decedent available for the payment of debts and legacies; the estate coming to
the heir or personal representative which is
chargeable, in law or equity, with the obligations
which such heir or representative is required, in
his representative capacity, to discharge.
dom, if ever, used for a declaration made under
oath, but denotes a declaration accompanied with
solemnity or an appeal to conscience, whereas by
an oath one appeals to God as a witness of the
truth of what one says.
ASSEWIARE. To draw or drain water from
marsh grounds. Cowell.
In an accurate and legal sense, all the personal property
of the deceased which is of a salable nature. and may be
converted into ready money, is deemed assets. But the
word is not confined to such property; for all other property of the deceased, real or personal, tangible or intangible, legal or equitable, which can be made available for or
can be appropriated to payment of debts, is, in a large
sense, assets. Trust Co. v. Earle, 110 U.S. 710, 4 Sup.Ct.
231, 28 L.Ed. 30; Condo v. Barbour, 101 Ind.App. 483, 200
N.E. 76; Tapp v. Stuart, D.C.Okl., 6 F.Supp. 577, 578.
ASSIGN, v. To make over or set over to .another.
North Tex. Nat. Bank v. Thompson, Tex.Civ.App.,
23 S.W.2d 494, 499. To appoint, allot, select, or
designate for a particular purpose, or duty.
Thus, in England, justices are said to be "assigned to
take the assises," "assigned to hold pleas," "assigned to
make gaol delivery," "assigned to keep the peace," etc.
St. Westm. 2, c. 30; Reg. Orig. 68, 69; 3 BI.Comm. 58,
59, 353; 1 Bl. Comm. 351.
To transfer persons, as a sheriff is said to assign prisoners in his custody.
General
—Assets entre mains. L. Fr. Assets in hand;
assets in the hands of executors or administrators,
applicable for the payment of debts. Termes de
la Ley; 2 Bl.Comm. 510; 1 Crabb, Real Prop.
Ti; Favorite v. Booher, 17 Ohio St. 557.
Conveyancing
To transfer; as to assign property, or some interest therein. Cowell; 2 Bl.Comm. 326; North
Texas Nat. Bank v. Thompson, Tex.Civ.App., 23
S.W.2d 494, 499; To transfer the title or ownership, as of choses in action. Burkett v. Doty, 176
Cal. 89, 167 P. 518, 520.
—Assets per descent. That portion of the ancestor's estate which descends to the heir, and which
is sufficient to charge him, as far as it goes, with
the specialty debts of his ancestors. 2 Williams,
Ex'rs, 1011.
Practice
To point at, or point out; to set forth, or specify; to mark out or designate; to particularize; as
to assign errors on a writ of error; to assign
breaches of a covenant. 2 Tidd, Pr. 1168; 1 Tidd,
686; Commercial Standard Ins. Co. v. Noack, Tex.
Civ.App., 45 S.W.2d 798, 801.
—Equitable assets. Equitable assets are all assets which are chargeable with the payment of
debts or legacies in equity, and which do not fall
under the description of legal assets. 1 Story,
Eq.Jur. § 552. Those portions of the property
which by the ordinary rules of law are exempt
from debts, but which the testator has voluntarily
charged as assets, or which, being non-existent
at law, have been created in equity. Adams, Eq.
254, et seq.
ASSIGNABILITY. "Survivability" convertible
term. People ex rel. Rude v. La Salle County, 310
Ill.App. 541, 34 N.E.2d 865, 867. City of Milwaukee v. Boynton Cab Co., 201 Wis. 581, 231 N.W. 597,
598.
They are so called because they can be reached only by
the aid and instrumentality of a court of equity, and
because their distribution is governed by a different rule
from that which governs the distribution of legal assets.
2 Fonbl. Eq. b. 4, pt. 2, c. 2, § 1, and notes; Story, Eq.
Jur. § 552.
ASSIGNABLE. That may be assigned or transferred; transferable; negotiable, as a bill of exchange. Comb. 176; Story, Bills, § 17.
—Legal assets. See Legal Assets.
ASSIGNATION. In French law. A writ of summons.
In Scotch law. A term equivalent to assignment.
—Personal assets. Chattels, money, and other
personal property belonging to a bankrupt, insolvent, or decedent estate, which go to the assignee or executor.
ASSIGNATION HOUSE. A bawdyhouse. State
v. Bragg, Mo.App., 220 S.W. 25, 26. See, also,
People v. Arcega, 49 Cal.App. 239, 193 P. 264, 266.
A house resorted to for prostitution. State v.
Hesselmeyer, 343 Mo. 797, 123 S.W.2d 90, 99.
—Quick assets. This term was used in a corporation credit statement merely to distinguish liquid
assets from those permanently invested in the
business, like real estate and machinery, and included amounts charged against officers for return of part of salaries paid them in a previous
year, in accordance with the agreement of employment. In re American Knit Goods Mfg. Co.,
C.C.A.N.Y., 173 F. 480, 97 C.C.A. 486.
ASSIGNATUS UTITUR JURE AUCTORIS. An.
assignee uses the right of his principal; an assignee is clothed with the rights of his principal..
Wing.Max. 56; 1 Exch. 32; 18 Q.B. 878.
ASSIGNAY. In Scotch law. An assignee.
—Real assets. Lands or real estate in the hands
of an heir, chargeable with the payment of the
debts of the ancestor. 2 Bl.Comm. 244, 302.
ASSEVERATION. An affirmation; a positive assertion; a solemn declaration. This word is sel-
ASSIGNEE. A person to whom an assignment is
made; grantee. Nolan v. City of New York, 39
N.Y.S.2d 360, 363, 179 Misc. 1011. Ely v. Com'rs,
49 Mich. 17, 12 N.W. 893, 13 N.W. 784. The term
152
ASSIGNMENT
the assignee but did not subject himself to any contractual
liability, whereas an indorser, in addition to passing title,
i mpliedly contracts to pay note at maturity on demand and
notice on maker's failure to so do. Johnson v. Beickey, 64
Utah, 43, 228 P. 189, 191.
is commonly used in reference to personal property; but it is not incorrect, in some cases, to
apply it to realty, e. g., "assignee of the reversion."
Assignee in fact is one to whom an assignment
has- been made in fact by the party having the
right. Tucker v. West, 31 Ark. 643. One to whom
an assignment has been made. Michigan Trust
Co. v. Chaffee, D.C.N.D., 44 F.Supp. 848, 850.
Assignee in law is one in whom the law vests
the right; as an executor or administrator.
In patent law, the transfer of the entire interest
in a patented invention or of an undivided portion
of such entire interest as to every section of the
United States. Rob.Pat. § 762. It differs from
grant in relation to the territorial area to which
they relate. A grant is the transfer of the exclusive right in a specific part of the United States.
It is an exclusive sectional right. A license is a
transfer of a less or different interest than either
the interest in a whole patent or an undivided
part of such whole interest or an exclusive sectional interest. Littlefield v. Perry, 21 Wall. 205,
22 L.Ed. 577.
Old Law
A person deputed or appointed by another to
do any act, or perform any business. Blount. An
assignee, however, was distinguished from a deputy, being said to occupy a thing in his own right,
while a deputy acted in right of another. Cowell.
A license is distinguished from an assignment and a
grant in that the latter transfers the monopoly as well as
the invention, while a license transfers only the invention
and does not affect the monopoly otherwise than by estopping the licensor from exercising his prohibitory powers in
derogation of the privileges conferred by him upon the
licensee. Rob. Pat. § 806. See Pope Mfg. Co. v. Mfg. Co.,
144 U.S. 248, 12 S.Ct. 641, 36 L.Ed. 423.
ASSIGNEE FOR THE BENEFIT OF CREDITORS.
One to whom, under an insolvent or bankrupt
law, the whole estate of a debtor is transferred
to be administered for the benefit of creditors; he
is a trustee for the creditors who stands in the
shoes of an assignor, and can assert no claim to
property which assignor could not. Slater v.
Oriental Mills, 18 R.I. 352, 27 A. 443, 444; Textor
v. Orr, 86 Md. 392, 38 A. 939, 940.
—Assignment for benefit of creditors. An assignment in trust made by insolvent and other debtors
for the payment of their debts. These are usually
regulated by state statutes. Woodard v. Morrissey, 115 Kan. 511, 223 P. 306, 307.
ASSIGNMENT. A transfer or making over to
another of the whole of any property, real or
personal, in possession or in action, or of any
estate or right therein. Bostrom v. Bostrom, 60
N.D. 792, 236 N.W. 732, 734. It includes transfers
of all kinds of property, Higgins v. Monckton, 28
Cal.App.2d 723, 83 P.2d 516, 519. But is ordinarily
limited to transfers of choses in action and to
rights in or connected with property, as distinguished from the particular item of property. In
re Beffa's Estate, 54 Cal.App. 186, 201 P. 616,
617. It is generally appropriate to the transfer
of equitable interests. Kavanaugh v. Cohoes
Power & Light Corporation, 187 N.Y.S. 216, 228,
114 Misc. 590.
The distinctive test between an "assignment" and a sale,
where another creditor is to be paid off, is that in the
former case such other creditor is to receive some of the
property or its proceeds, and in the latter the creditor to
whom title is passed takes for himself the whole property,
stipulating to pay the other creditor out of his own means
and not out of the property or its proceeds. Silver & Goldstein v. Chapman, 163 Ga. 604, 136 S.E. 914, 919.
—Assignment of account. Transfer to assignee
giving him a right to have moneys when collected
applied to payment of his debt. Nanny v. H. E.
Pogue Distillery Co., 56 Cal.App.2d 817, 133 P.2d
686, 688.
To constitute valid "assignment," there must be perfected transaction between parties intended to vest in
assignee present right in thing assigned. In re Lynch's
Estate, 272 N.Y.S. 79, 85, 151 Misc. 549. It is contract, and
is subject to same requisites as to validity as other contracts, such as proper parties, mutual assent, consideration, and legal subject-matter. Hutsell v. Citizens' Nat.
Bank, 166 Tenn. 598, 64 S.W.2d 188.
The transfer of the interest one has in lands
and tenements; more particularly applied to the
unexpired residue of a term or estate for life or
years; Cruise, Dig. tit. xxxii. (Deed) c. vii, § 15;
1 Steph.Com. 507.
The distinction between an "assignment" and a "sublease" is that an assignment transfers the entire unexpired
term. Sandford v. Ambassador Restaurant Co., 247 N.Y.S.
655, 657, 139 Misc. 3.
The deed by which the transfer is made. Humphrey v. Coquillard Wagon Works, 37 Okl. 714,
132 P. 899, 902, 49 L.R.A.,N.S., 600.
A transfer of the title to a bill, note, or check.
An assignment at common law differs from an indorsement in that by an assignment the assignor passed title to
—Assignment of dower. The act by which the
share of a widow in her deceased husband's real
estate is ascertained and set apart to her. Bettis
v. McNider, 137 Ala. 588, 34 So. 813, 97 Am.St.Rep.
59.
—Assignment of error. See Error.
—Assignment pro tanto. Where an order is drawn
upon a third party and made - payable out of a
particular fund then due or to become due to the
drawer, the delivery of the order to the payee
operates as an assignment pro tanto of the fund.
Doyle v. East New York Sa y . Bank, 44 N.Y.S.2d
318, 323.
Under Mechanics' Lien Law a workman or materialman
who serves on owner a stop notice becomes an assignee
pro tanto of debt due from owner to contractor. Commonwealth Roofing Co. v. Riccio, 81 N.J.Eq. 486, 87 A. 114,
115.
Check drawn on a bank operates as an assignment pro
tanto of depositor's funds in favor of holder. Nat. Bank
of America v. Indiana Banking Co., 114 Ill. 483, 2 N.E. 401.
—Assignment with preferences. An assignment
for the benefit of creditors, with directions to the
153
ASSIGNMENT
assignee to prefer a specified creditor or class of
creditors, by paying their claims in full before
the others receive any dividend, or in some other
manner. More usually termed a "preferential
assignment."
cused of any heinous crime, and not able to purge
themselves, .but must abjure the realm, had liberty
of forty days to stay and try what succor they
could get of their friends towards their sustenance
in exile. Bract. fol. 136; Co.Litt. 159a; Cowell.
—Foreign assignment. An assignment made in a
foreign country, or in another state. 2 Kent,
Comm. 405, et seq.
ASSISA DE FORESTA. Assise of the forest; a
statute concerning orders to be observed in the
royal forests.
—General assignment. An assignment made for
the benefit of all the assignor's creditors, instead
of a few only; or one which transfers the whole
of his estate to the assignee, instead of a part
only. Royer Wheel Co. v. Fielding, 101 N.Y. 504,
5 N.E. 431.
ASSISA DE MENSURIS. Assise of measures. A.
common rule for weights and measures, established throughout England by Richard I., in the
eighth year of his reign. Hale, Com.Law, c. 7.
—Voluntary assignment. An assignment for the
benefit of his creditors made by a debtor voluntarily; as distinguished from a compulsory assignment which takes place by operation of law
in proceedings in bankruptcy or insolvency. Presumably it means an assignment of a debtor's
property in trust to pay his debts generally, in
distinction from a transfer of property to a particular creditor in payment of his demand, or to a
conveyance by way of collateral security or mortgage. Dias v. Bouchaud, 10 Paige (N.Y.) 445.
ASSIGNOR. A person who assigns a right, whether or not he is the original owner thereof. Restatement, Contracts, § 149(2).
ASSIGNS. Assignees; those to whom property
shall have been transferred. Now seldom used
except in the phrase, in deeds, "heirs, administrators, and assigns." Stannard v. Marboe, 159
Minn. 119, 198 N.W. 127. It generally comprehends
all those who take either immediately or remotely
from or under the assignor, whether by conveyance, devise, descent, or act of law. Ferrell v.
Deverick, 100 S.E. 850, 853, 85 W.Va. 1.
ASSISA. In old English and Scotch law. An
assise; a kind of jury or inquest; a writ; a sitting
of a court; an ordinance or statute; a fixed or
specific time, number, quantity, quality, price, or
weight; a tribute, fine, or tax; a real action;
the name of a writ. See Assise.
ASSISA ARMORUM. Assise of arms. A statute
or ordinance requiring the keeping of arms for the
common defense. Hale, Com.Law, c. 11.
ASSISA CADERE. To fail in the assise;
be nonsuited. Cowell; 3 Bl.Comm. 402.
e., to
ASSISA CADIT IN JURATUM. The assise falls
(turns) into a jury; hence to submit a controversy
to trial by jury.
ASSISA CONTINUANDA. An ancient writ addressed to the justices of assise for the continuation of a cause, when certain facts put in issue
could not have been proved in time by the party
alleging them. Reg.Orig. 217.
ASSISA DE CLARENDON. The assise of Clarendon. A statute or ordinance passed in the tenth
year of Henry II., by which those that were ac-
ASSISA DE NOCUMENTO. An assise of nuisance; a writ to abate or redress a nuisance.
ASSISA DE UTRUM. An obsolete writ, which
lay for the parson of a church whose predecessor
had alienated the land and rents of it.
ASSISA FRISCZE FORTIJE. Assise of fresh
force, which see.
ASSISA MORTIS D'ANCESTORIS. Assise of
mort d'ancestor, which see.
ASSISA NOVAE DISSEYSINAE. Assise of novel
disseisin, which see.
ASSISA PANIS ET CEREVISLE. Assise of bread
and ale, or beer. The name of a statute passed in
the fifty-first year of Henry III., containing regulations for the sale of bread and ale; sometimes
called the "statute of bread and ale." Co.Litt.
159b; 2 Reeve, Hist.Eng.Law, 56; Cowell; Bract.
fol. 155.
ASSISA PROROGANDA. An obsolete writ, which
was directed to the judges assigned to take
assises, to stay proceedings, by reason of a party
to them being employed in the king's business.
Reg.Orig. 208.
ASSISA ULTDLE PRIESENTATIONIS. Assise
of darrein presentment, (q. v.).
ASSISA VENALIUM. The assise of salable commodities, or of things exposed for sale.
ASSISE, or ASSIZE. An ancient species of court,
consisting of a certain number of men, usually
twelve, who were summoned together to try a
disputed cause, performing the functions of a
jury, except that they gave a verdict from their
own investigation and knowledge and not upon
evidence adduced. From the fact that they sat
together, (assideo,) they were called the "assise."
See Bract. 4, 1, 6; Co.Litt. 153b, 159b. A court
composed of an assembly of knights and other
substantial men, with the . baron or justice, in a
certain place, at an appointed time. Grand Cou.
cc. 24, 25.
The verdict or judgment of the jurors or recognitors of assise. 3 Bl.Comm. 57, 59.
In modern English law, the name "assises" or "assizes"
is given to the court, time, or place where the judges of
assise and nisi pries, who are sent by special commission
from the crown on circuits through the kingdom, proceed
to take indictments, and to try such disputed causes issu-
154
ASSISTANT
ing out of the courts at Westminster as are then ready for
trial, with the assistance of a jury from the particular
county; the regular sessions of the judges at nisi Arius.
Anything reduced to a certainty in respect to
time, number, quantity, quality, weight, measure,
etc. Spelman.
An ordinance, statute, or regulation. Spelman
gives this meaning of the word the first place
among his definitions, observing that statutes
were in England called "assises" down to the
reign of Henry III.
A species of writ, or real action, said to have
been invented by Glanville, chief justice to Henry
II., and having for its object to determine the
right of possession of lands, and to recover the
possession. 3 Bl.Comm. 184, 185.
The whole proceedings in court upon a writ of
assise. Co.Litt. 159b. The verdict or finding of
the jury upon such a writ. 3 Bl.Comm. 57.
—Assise of Clarendon. See Assisa.
—Assise of darrein presentment. A writ of assise
which formerly lay when a man or his ancestors
under whom he claimed presented a clerk to a
benefice, who was instituted, and afterwards, upon
the next avoidance, a stranger presented a clerk
and thereby disturbed the real patron. 3 Bl.Comm.
245; St. 13 Edw. I. ( Westm. 2) c. 5. It has given
way to the remedy by quare impedit.
—Assise of fresh force. In old English practice.
A writ which lay by the usage and custom of a
city or borough, where a man was disseised of his
lands and tenements in such city or borough. It
was called "fresh force," because it was to be
sued within forty days after the party's title accrued to him. Fitzh.Nat.Brev. 7 C.
—Assise of mort d'ancestor. A real action which
lay to recover land of which a person had been
deprived on the death of his ancestor by the abatement or intrusion of a stranger. 3 Bl.Comm. 185;
Co.Litt. 159a. It was abolished by St. 3 & 4 Wm.
IV, c. 27.
—Assise of Northhampton. A re-enactment and
enlargement (1176) of the Assise of Clarendon.
1 Holdsw.Hist.E.L. 21.
—Assise of novel disseisin. A writ of assise which
lay for the recovery of lands or tenements, where
the claimant had been lately disseised.
—Assise of nuisance. A writ of assise which lay
where a nuisance had been committed to the
complainant's freehold; either for abatement of
the nuisance or for damages.
—Assise of the forest. A statute touching orders
to be observed in the king's forests. Manwood,
35.
—Assise of utrum. A writ of assise which lay for
a parson to recover lands which his predecessor
had improperly allowed the church to be deprived
of. 3 Bla.Com. 257.
An assise for the trial of the question of whether land is a lay fee, or held in frankalmoigne. 1
Holdsw.Hist.E.L. 21.
—Assise rents. The certain established rents of
the freeholders and ancient copyholders of a
manor; so called because they are assised, or
made precise and certain.
—Grand assize. A peculiar species of trial by
jury, introduced in the time of Henry II., giving
the tenant or defendant in a writ of right the
alternative of a trial by battel, or by his peers.
Abolished by 3 & 4 Wm. IV, c. 42, § 13. See 3 Bl.
Comm. 341. See Battel.
ASSISER. An assessor; juror; an officer who
has the care and oversight of weights and measures.
ASSISORS. In Scotch law. Jurors; the persons
who formed that kind of court which in Scotland
was called an "assise," for the purpose of inquiring
into and judging divers civil causes, such as perambulations, cognitions, molestations, purprestures, and other matters; like jurors in England.
Holthouse.
ASSIST. To help; aid; succor; lend countenance
or encouragement to; participate in as an auxiliary. People v. Hayne, 83 Cal. 111, 23 Pac. 1, 7
L.R.A. 348, 17 Am.St.Rep. 211. To contribute
effort in the complete accomplishment of an ultimate purpose intended to be effected by those engaged. People v. Thurman, 62 Cal.App. 147, 216
P. 394, 395.
ASSISTANCE. Imports voluntary participation
in wrongful acts of promotors. Peterson v. Hopson, 29 N.E.2d 140, 148, 306 Mass. 597.
ASSISTANCE, or (ASSISTANTS) COURT OF.
See Court of Assistants.
ASSISTANCE OF COUNSEL. Sixth Amendment
to Federal Constitution, guaranteeing accused in
criminal prosecution "assistance of counsel" for
his defense, means effective assistance. U.S.C.A.
Const. Amend. 6. Thomas v. District of Columbia,
90 F.2d 424, 428, 67 App.D.C. 179. As distinguished
from bad faith, sham, mere pretense or want of
opportunity for conferences and preparation.
Beckett v. Hudspeth, C.C.A.Kan., 131 F.2d 195, 196.
ASSISTANCE, WRIT OF. See Writ of Assistance.
ASSISTANT. A deputy, agent, or employee; as,
an assistant assessor. Pryor Brown Transfer Co.
v. Gibson, 154 Tenn. 260, 290 S.W. 33, 35, 51 A.L.
R. 193. One who stands by and aids or helps another, and is not an agent. Wells-Dickey Co. v.
Embody, 82 Mont. 150, 266 P. 869, 874. Ordinarily
refers to employee whose duties are to help his superior, to whom he must look for authority to act.
State ex rel. Dunn v. Ayers, 112 Mont. 120, 113 P.
2d 785, 788.
ASSISTANT JUDGE. A judge of the English
court of general or quarter sessions in Middlesex.
He differs from the other justices in being a bar-
155
ASSISTANT
rister of ten years' standing, and in being salaried.
St. 7 & 8 Vict. c. 71; 22 & 23 Vict. c. 4; Pritch.
Quar.Sess. 31.
ASSOCIATION. The act of a number of persons
in uniting together for some special purpose or
business. The persons so joining. It is a word of
vague meaning used to indicate a collection of
persons who have joined together for a certain
object. U. S. v. Martindale, D.C.Kan., 146 F.
280, 284; In. re Sautter's Estate, 142 Neb. 42, 5
N.W.2d 263, 268; W. R. Roach & Co. v. Harding,
348 Ill. 454, 181 N.E. 331, 336. An unincorporated
society; a body of persons united and acting together without a charter, but upon the methods
and forms used by incorporated bodies for the
prosecution of some common enterprise. Clark v.
Grand Lodge of Brotherhood of Railroad Trainmen, 328 Mo. 1084, 43 S.W.2d 404, 408. It is not a
legal entity separate from the persons who compose it. Meinhart v. Contresta, Sup., 194 N.Y.S.
593, 594.
A confederacy or union for particular purposes,
good or ill. Johnson's Dict.
ASSISTANT TEACHER. An "assistant teacher,"
meaning a classroom teacher of a subject, is not
a "laboratory assistant," meaning a helper of a
teacher who does no teaching. People ex rel.
Becker v. Board of Education of City of New
York, Sup., 162 N.Y.S. 643, 648.
ASSISUS. Rented or farmed out for a specified
assise; that is, a payment of a certain assessed
rent in money or provisions.
ASSITHMENT. Weregild (q. v.) or compensation
by a pecuniary mulct. Cowell.
ASSIZE. In the practice of the criminal courts
of Scotland, the fifteen men who decide on the
conviction or acquittal of an accused person are
called the "assize," though in popular language,
and even in statutes, they are called the "jury."
Wharton. See Assise.
ASSIZES. Sessions of the justices or commissioners of assize. These assizes are held twice in
each year in each of the various shires of England, with some exceptions, for the trial of matters of fact in issue in both civil and criminal
cases. They still retain the ancient name in popular language, though the commission of assize is
no longer issued. See Assise.
ASSIZES DE JERUSALEM. A code of feudal
jurisprudence prepared by an assembly of barons
and lords A. D. 1099, after the conquest of Jerusalem. It was compiled principally from the laws
and customs of France.
ASSOCIATE. Signifies confederacy or union for a
particular purpose, good or ill. Weir v. United
States, C.C.A.Ind., 92 F.2d 634, 638, 114 A.L.R. 481;
Means "also". Smith v. Maine, 260 N.Y.S. 409,
145 Misc. 521.
An officer in each of the English courts of common law, appointed by the chief judge of the
court, and holding his office during good behavior,
whose duties were to superintend the entry of
causes, to attend the sittings of nisi prius, and
there receive and enter verdicts, and to draw up
the posteas and any orders of nisi prius. The associates are now officers of the Supreme Court of
Judicature, and are styled "Masters of the Supreme Court." Wharton.
A person associated with the judges and clerk
of assise in the commission of general jail delivery. Mozley & Whitley.
The term is frequently used of the judges of appellate
courts, other than the presiding judge or chief justice.
ASSOCIATES IN OFFICE. "Associates in office"
are those who are united in action; who have a
common purpose; who share the responsibility
or authority and among whom is reasonable
equality; those who are authorized by law to perform the duties jointly or as a body. Barton v.
Alexander, 27 Idaho 286, 148 P. 471, 474, Ann.Cas.
1917D, 729,
In that sense "association" is a generic term and
indifferently comprehend a voluntary confederacy, whiciis a partnership dissoluble by the persons who formed it
or a corporate confederacy, deriving its existence from
confederacy, and dissoluble only by the law." Campbell
v. Floyd, 153 Pa. 84, 25 A. 1033, 1036.
A body of persons invested with some, yet not full, con
porate rights and powers, but will not include the state
State v. Taylor, 7 S.D. 533, 64 N.W. 548.
"Association" and "society" are convertible terms
Kribs v. United Order of Foresters, 191 Mo.App. 524, 17'
S. W. 766, 769. Also often used as synonymous with "corn
pany". Law v. Crist, 41 Cal.App.2d 862, 107 P.2d 953, 955.
It is fundamentally a large partnership, from which i
differs, in that it is not bound by the acts of the individ
ual partners, but only by those of its manager or trustee
and that shares in it are transferable, and that it is no
dissolved by the retirement, death, or bankruptcy of it,
individual members. In re Lloyds of Texas, D.C.Tex., 4:
F.2d 383, 385.
A "business trust" is an "association" when it has
continuing entity throughout trust period, centralize(
management, continuity of trust uninterrupted by deatl
among beneficial owners, means for transfer of beneficia
interests, and limitation of personal liabilities of partici
pants to property embarked in undertaking. Fletcher v
Clark, D.C.Wyo., 57 F.Supp. 479, 480.
"Association" has been held to include a common-la%
business or Massachusetts trust. Tracy v. Banker, 17
Mass. 266, 49 N.E. 308, 39 L.R.A. 508.
Articles of association. See Articles.
English Law
A writ directing certain persons (usually the
clerk and his subordinate officers) to associate
themselves with the justices and sergeants for th,
purpose of taking the assizes. 3 Bla.Comm. 59.
National Banking Associations
The statutory title of corporations organize(
for the purpose of carrying on the business o
banking under the laws of the United State:.
Rev.St.U.S. § 5133 (12 USCA § 21).
ASSOCIE EN NOM. In French law. In a
societ
en commanditd an associd en nom is one who i
liable for the engagements of the undertaking t
the whole extent of his properly. This expressio:
arises from the fact that the names of the associd
156
ASSUMPTION
so liable figure in the firm-name or form part of
the sociêtó en i.nom collectif. Arg.Fr.Merc.Law,
546.
ASSOIL. (Spelled also assoile, absoile, assoilyie.)
To absolve; acquit; to set free; to deliver from
excommunication. St. 1 Hen. IV, c. 7; Cowell.
ASSOILZIE. In Scotch law. To acquit . the defendant in an action; to find a criminal not guilty.
ASSUME. To pretend. To undertake; engage;
promise. 1 Ld.Raym. 122; 4 Coke, 92; Hopkins v.
Erskine, 118 Me. 276, 107 A. 829, 830. To take to
or upon one's self. Springer v. De Wolf, 194 Ill.
218, 62 N.E. 542, 56 L.R.A. 465, 88 Am.St.Rep. 155;
Anicker v. Doyle, 84 Okl. 62, 202 P. 281, 284; Bell
Telephone Co. of Pennsylvania v. Public Service
Commission of Pennsylvania, 119 Pa.Super. 292,
181 A. 73, 74. Also taking up, receiving, adopting,
taking to oneself, or to put on deceitfully, take
appearance of, affect, or outwardly seem. Nickell
v. State, 205 Wis. 614, 238 N.W. 508, 510. To take
on, become bound as another is bound, or put oneself in place of another as to an obligation or liability. Texas Employers' Ins. Ass'n v. Texas & P.
Ry. Co., Tex.Civ.App., 129 S.W.2d 746, 749.
ASSUMED RISK. See Assumption of Risk.
ASSUMPSIT. Lat. He undertook; he promised.
A promise or engagement by which one person
assumes or undertakes to do some act or pay
something to another. It may be either oral or
in writing, but is not under seal. It is express if
the promisor puts his engagement in distinct and
definite language; it is implied where the law
infers a promise (though no formal one has
passed) from the conduct of the party or the circumstances of the case. Dukes v. Rogers, 67 Ga.
App. 661, 21 S.E.2d 295, 297.
Practice
A form of action which lies for the recovery
of damages for the non-performance of a parol
or simple contract; or a contract that is neither
of record nor under seal. 7 Term. 351; Ballard v.
Walker, 3 Johns. Cas. (N.Y.) 60. A liberal and
equitable action, applicable to almost every case
where money has been received which in equity
and good conscience ought to be refunded; express promise is not necessary to sustain action,
but it may be maintained whenever anything is
received or done from the circumstances of which
the law implies a promise of compensation. Armour & Co. v. Whitney & Kemmerer, Inc., 164
Va. 12, 178 S.E. 889, 98 A.L.R. 596.
Express assumpsit. See Express Assumpsit
Special assumpsit is an action of assumpsit
brought upon an express contract or promise.
good conscience, he is bound to pay to plaintiff.
Tr. and Ha. Pr. 1490; Ruse v. Williams, 14 Ariz
445, 130 P. 887, 888, 45 L.R.A.,N.S., 923.
The action of assumpsit differs from trespass and trover,
which are founded on a tort, not upon a contract; from
covenant and debt, which are appropriate where the
ground of recovery is a sealed instrument, or special obligation to pay a fixed sum; and from replevin which seeks
the recovery of specific property, if attainable, rather than
' of damages.
ASSUMPSIT FOR MONEY HAD AND RECEIVED. Is of equitable character and lies, in
general, whenever defendant has received money
which in equity and good conscience he ought to
pay to plaintiff. Henderson v. Koenig, 192 Mo.
690, 91 S.W. 88, 91.
ASSUMPSIT ON QUANTUM MERUIT. When a
person employs another to do work for him, without any agreement as to his compensation, the law
implies a promise from the employer to the workman that he will pay him for his services as much
as he may deserve or merit. In such case, the
plaintiff may suggest in his declaration that the
defendant promised to pay him as much as he
reasonably deserved, and then aver that his trouble
was worth such a sum of money, which the defendant has omitted to pay. This is called an
"assumpsit on quantum meruit". Travis v. Kennedy, Tex.Civ.App., 66 S.W.2d 444, 446.
ASSUMPTION. The act of conceding or taking
for granted. Gordon v. Schellhorn, 95 N.J.Eq. 563,
123 A. 549, 552.
The term is substantially synonymous with "inference,"
"probability," and "presumption." Ohio Bldg. Safety
Vault Co. v. Industrial Board of Illinois, 277 Ill. 96, 115
N.E. 149, 154.
The act or agreement of assuming or taking
upon one's self; the undertaking or adoption of a
debt or obligation primarily resting upon another,
as where the purchaser of real estate "assumes"
a mortgage resting upon it, in which case he adopts
the mortgage debt as his own and becomes personally liable for its payment. Lenz v. Railroad
Co., 111 Wis. 198, 86 N.W. 607; Bell Telephone
Co. of Pennsylvania v. Public Service Commission
of Pennsylvania, 119 Pa.Super. 292, 181 A. 73, 75.
The difference between the purchaser of land assuming
a mortgage on it and simply buying subject to the mortgage, is that In the former case he makes himself personally liable for the payment of the mortgage debt, while
in the latter case he does not. Hancock v. Fleming, 103
Ind. 533, 3 N.E. 254. When he takes the conveyance subject to the mortgage, he is bound only to the extent of
the property. Brichetto v. Raney, 76 Cal.App. 232, 245 P.
235, 241. Where one "assumes" a lease, he takes to himself the obligations, contracts, agreements, and benefits to
which the other contracting party was entitled under the
terms of the lease. Cincinnati, etc., R. Co. v. Indiana, etc.,
R. Co., 44 Ohio St. 287, 314, 7 N.E. 152.
ASSUMPTION OF INDEBTEDNESS. Means for
one person to bind himself to pay debt incurred by
another. Pawnee County Excise Board v. Kurn,
187 Oki. 110, 101 P.2d 614, 618.
General (common or indebitatus) assumpsit is
an action of assumpsit brought upon the promise ASSUMPTION OF RISK. Exists where none of
or contract implied by law in certain cases. It is
fault for injury rests with plaintiff, but where
founded upon what the law terms an implied
plaintiff assumes consequences of injury occurring
promise on the part of defendant to pay what, in
through fault of defendant, third person, or fault
157
ASSUMPTION
of no one. Rodgers v. Stoller, 284 Ky. 108, 143 S.
W.2d 1047, 1048. It is based upon the maxim
"volenti non fit injuria," which means that to
which a person assents is not regarded in law as
an injury. Poole v. Lutz & Schmidt, 273 Ky.
586, 117 S.W.2d 575, 576. And predicated upon
knowledge and consent. Kansas City Southern
Ry. Co. v. Diggs, 205 Ark. 150, 167 S.W.2d 879,
883. While more generally used as between master and servant, courts do not confine it to such
relationship. Adams' Adm'r v. Callis & Hughes,
253 Ky. 382, 69 S.W.2d 711, 712.
Misc. 453. A declaration tending to inspire full
confidence. Texas & N. 0. Ry. Co. v. New, Tex.
Civ.App., 95 S.W.2d 170, 175. A making secure;
insurance.
The term was formerly of very frequent use in the
modern sense of insurance, particularly in English mariti me law, and still appears in the policies of some companies, but is otherwise seldom seen of late years. There
seems to be a tendency, however, to use assurance for the
contracts of life insurance companies, and insurance for
risks upon property.
In conveyancing. A deed or instrument of conveyance. The legal evidences of the transfer of
property are in England called the "common assurances" of the kingdom, whereby every man's
estate is assured to him, and all controversies,
doubts, and difficulties are either prevented or
removed. 2 Bl.Comm. 294. State v. Farrand, 8
N.J.Law, 335.
Doctrine held applicable in action by automobile guest
passen g er. Gill v. Arthur, 69 Ohio App. 386, 43 N.E.2d 894,
899. But held not applicable in automobile collision cases
generally. Schubring v. Weggen, 234 Wis. 517, 291 N.W.
788, 789, 790, 791.
In some jurisdictions, doctrine confined to master
and servant relation. Dowse v. Maine Cent. R. R.,
91 N.H. 419, 20 A.2d 629, 631; Parker v. Grand
Trunk Western R. Co., 261 Mich. 293, 246 N.W.
125, 126; West Texas Utilities Co. v. Reuner, Tex.,
32 S.W.2d 264, 270. A term or condition in a contract of employment, either express or implied
from the circumstances of the employment, by
which the employee agrees that dangers of injury
ordinarily or obviously incident to the discharge
of his duty in the particular employment shall be
at his own risk. Parker v. City of Wichita, 150
Kan. 249, 92 P.2d 86, 89; Wisconsin & Arkansas
Lumber Co. v. Otts, 178 Ark. 283, 10 S.W.2d 364,
365; Southern Pac. Co. v. McCready, C.C.A.Cal.,
47 F.2d 673, 675. It has reference to dangers that
are normally and necessarily incident to the occupation, which are deemed to be assumed by
workmen of mature years, whether they are actually aware of them or not. Chesapeake & 0.
Ry. Co. v. Cochran, C.C.A.W.Va., 22 F.2d 22,
25.
ASSURANCE, FURTHER, COVENANT FOR. See
Covenant for Further Assurance.
ASSURE. To make certain and put beyond doubt.
Armour & Co. v. New York, N. H. & H. R. Co., 41
R.I. 361, 103 A. 1031, 1033. To declare solemnly;
to assure to any one with design of inspiring belief or confidence; to declare, aver, avouch, assert,
or asseverate. Chanin v. Chevrolet Motor Co.,
C.C.A.Ill., 89 F.2d 889, 891. Used interchangeably
With insure in insurance law; in real property
documents it means a warranty; and in business
documents, generally, it means a pledge or security. Utilities Engineering Institute v. Kafad,
58 N.Y.S.2d 743, 745, 185 Misc. 1035.
It is founded upon the knowledge of the servant either
actual dr constructive, as to the hazards to be encountered
and his consent to take the chance of danger. Schuppenies
v. Oregon Short Line R. Co., 38 Idaho, 672, 225 P. 501, 505.
But it does not include the risks from the negligence of
the master, or the gross negligence of his superior servant.
Burton Const. Co. v. Metcalfe, 162 Ky. 366, 172 S.W. 698,
702; "Contributory negligence" is not synonymous with
assumption of risk. Dolese Bros. Co. v. Kahl, C.C.A.Iowa,
203 F. 627, 630. "Assumed risk" is founded upon the
knowledge of the employee, either actual or constructive,
of the risks to be encountered, and his consent to take the
chance of injury therefrom. Contributory negligence
i mplies misconduct, the doing of an imprudent act by the
Injured party, or his dereliction in failing to take proper
precaution for his personal safety. The doctrine of
assumed risk is founded upon contract, while contributory
negligence is solely matter of conduct. Wheeler v. Tyler,
129 Minn. 206, 152 N.W. 137.
ASSUMPTION OF SKILL. The doctrine known
as the "assumption of skill" on the part of the
master sometimes makes the knowledge implied
against the master relative to the safety of the
place of work, and the nature, constituents, and
general characteristics of the things used in the
business, superior to that implied against the
servant, especially where the servant is inexperienced. Hines v. Little, 26 Ga.App. 136, 105 S.
E. 618.
ASSURANCE. A pledge, guaranty, or surety. National Watch Co. v. Weiss, 163 N.Y.S. 46, 47, 98
ASSURED. A person who has been insured by
some insurance company, or underwriter, against
losses or perils mentioned in the policy of insurance. Brockway v. Insurance Co., C.C.Pa., 29 Fed.
766.
Thus where a wife insures her husband's life for her
own benefit and he has no interest in the policy, she is
the "assured" and he the "insured."
The person for whose benefit the policy is issued and to whom the loss is payable, not necessarily the person on whose life or property the
policy is written. Insurance Co. v. Luchs, 2 S.Ct.
949, 108 U.S. 498, 27 L.Ed. 800. Ordinarily synonymous with insured. Thompson v. Northwestern Mut. Life Ins. Co., 161 Iowa, 446, 143 N.W. 518.
ASSURED CLEAR DISTANCE AHEAD. Requires driver keep automobile under such control
that he can stop in distance that he can clearly
see, the distance varying with circumstances.
Lauerman v. Strickler, 141 Pa.Super. 240, 14 A.2d
608, 610; Smiley v. Arrow Spring Bed Co., 138
Ohio St. 81, 33 N.E.2d 3, 5, 6, 7, 9, 133 A.L.R. 960.
ASSURER. An insurer against certain perils and
dangers; an underwriter; and indemnifier.
ASSYTHEMENT. In Scotch law. Damages
awarded to the relative of a murdered person
from the guilty party, who has not been convicted
and punished. Paters. Comp.
158
AT
ASTIPULATION. A mutual agreement, assent,
and consent between parties; also a witness or
record.
ASTITRARIUS HizERES. An heir apparent who
has been placed, by conveyance, in possession of
his ancestor's estate during such ancestor's lifetime. Co.Litt. 8.
ASTITUTION. An arraignment (q. v.).
ASTRARIUS. In old English law. A householder; belonging to the house; a person . in actual possession of a house.
ASTRARIUS H/ERES. Where the ancestor by
conveyance hath set his heir apparent and his
family in a house in his lifetime. Cunningham,
L. Dict.
ASTRER. In old English law. A householder,
or occupant of a house or hearth.
ASTRICT. In Scotch law. To assign to a particular mill.
ASTRICTION TO A MILL. A servitude by which
grain growing on certain lands or brought within
them must be carried to a certain mill to be
ground, a certain multure or price being paid for
the same. Jacob.
ASTRIHILTET. In Saxon law. A penalty for
a wrong done by one in the king's peace. The
offender was to replace the damage twofold. Spelman.
ASTRUM. A house, or place of habitation. Bract.
fol. 267b; Cowell.
ASYLUM. A sanctuary, or place of refuge and
protection, where criminals and debtors found
shelter, and from which they could not be taken
without sacrilege. Cromie v. Institution of Mercy,
3 Bush (Ky.) 391.
Shelter; refuge; protection from the hand of
justice. The word includes not only place, but
also shelter, security, protection.
A fugitive from justice, who has committed a crime in a
foreign country, "seeks an asylum" at all times when he
claims the use of the territories of the United States. In
re De Giacomo, 12 Blatchf. 395, Fed.Cas.No.3,747. Every
sovereign state has the right to offer an asylum to fugitives
from other countries, but there is no corresponding right
on the part of the alien to claim asylum. In recent years
this right of asylum has been voluntarily limited by most
states by treaties providing for the extradition (q. v.) of
fugitive criminals.
In time of war, a place of refuge in neutral
territory for belligerent war-ships.
An institution for the protection and relief of
unfortunates, as asylums for the poor, for the
deaf and dumb, or for the insane. Lawrence v.
Leidigh, 58 Kan. 594, 50 P. 600, 62 Am.St.Rep.
631. The term may also include a hospital constructed and maintained by the United States
government for the treatment of soldiers and exsoldiers. Kemp v. Heebner, 77 Colo. 177, 234 P.
1068, 1069.
AT. A term of considerable elasticity of meaning, and somewhat indefinite. As used to fix a
time, it does not necessarily mean eo instante or
the identical time named, or even a fixed definite
moment. Barnett v. Strain, 151 Ga. 553, 107 S.E.
530, 532; In re Clark's Estate, 61 P.2d 1221, 1222,
17 Cal.App.2d 323; And may mean on the same
day, Perry v. Gross, 172 Cal. 468, 156 P. 1031,
1032. But "at" may often express simply nearness and proximity, and consequently may denote
a reasonable time. Smeltzer v. Atlanta Coach Co.,
44 Ga.App. 53, 160 S.E. 665, 666. Primarily, "at"
means "near" or "near to," and involves the idea
of proximity. Chesapeake & 0. Ry. Co. v. Hill,
215 Ky. 222, 284 S.W. 1047, 1048, 48 A.L.R. 327;
"At" a village or city may mean "near." Howell
v. State, 164 Ga. 204, 138 S.E. 206, 209; Board of
Trustees of Albany College v. Monteith, 64 Or.
356, 130 P. 633, 636. Depending on the context,
"at" may be equivalent to "in"; Millikan v. Security Trust Co., 187 Ind. 307, 118 N.E. 568; Fayette
County Board of Education v. Tompkins, 212 Ky.
751, 280 S.W. 114, 116; "toward"; State v. Cunningham, 107 Miss. 140, 65 So. 115, 117, 51 L.R.A.
( N.S.) 1179; "after"; Davis v. Godart, 131 Minn.
221, 154 N.W. 1091, 1092; "not later than"; Smith
v. Jacksonville Oil Mill Co., 21 Ga.App. 679, 94
S.E. 900, 901; or be equivalent to the words on,
by, about, under, over, through, from, to, etc.
AT ARM'S LENGTH. Beyond the reach of personal influence or control.
Parties are said to deal "at arm's length" when each
stands upon the strict letter of his rights, and conducts
the business in a formal manner, without trusting to the
other's fairness or integrity, and without being subject to
the other's control or overmastering influence.
AT BAR. Before the court. "The case at bar,"
etc. Dyer, 31.
AT ISSUE. Whenever the parties come to a point
in the pleadings which is affirmed on one side and
denied on the other, they are said to be at an
issue. Willard v. Zehr, 215 Ill. 154, 74 N.E. 107,
108.
AT LARGE. Not limited to any particular place,
district, person, matter, or question; open to discussion or controversy; not precluded. Free;
unrestrained; not under corporal control; as a
ferocious animal so free from restraint as to be
liable to do mischief. Fully; in detail; in an extended form.
A congressman at large Is one who is elected by the
electors of an entire state.
AT LAW. According to law; by, for, or in law;
particularly in distinction from that which is done
in or according to equity; or in titles such as
sergeant at law, barrister at law, attorney or
counsellor at law. Hooker v. Nichols, 116 N.C.
157, 21 S.E. 208.
AT LEAST. In deed of trust covenant specifying
amount of fire insurance, means at lowest estimate, at smallest concession or claim, in smallest
or lowest degree, at smallest number. Browne v.
Franklin Fire Ins. Co., 225 Mo.App. 665, 37 S.W.2d
977, 979.
159
AT
AT ONCE. In contracts of various kinds the
phrase is construed as synonymous with "immediately" and "forthwith," where the subject-matter is the giving of notice. The use of such term
does not ordinarily call for instantaneous action,
but rather that notice shall be given within such
time as is reasonable in view of the circumstances.
George v. Aetna Casualty and Surety Co., 121
Neb. 647, 238 N.W. 36, 39. Likewise, contracts or
statutes requiring the performance of a particular
act "at once" are usually held to mean simply
within a reasonable time. Arizona Power Co. v.
State, 19 Ariz. 114, 166 P. 275, 277. An order to
"ship at once" is synonymous with "as soon as
possible". Myers v. Hardin, 208 Ark. 505, 186 S.
W.2d 925, 928.
AT SEA. Out of the limits of any port or harbor
on the sea-coast. U. S. v. Symonds, 7 S.Ct. 411, 120
U.S. 46, 30 L.Ed. 557.
AT WAR. Death of seaman from Pearl Harbor
Attack as occurring while nation was "at war".
Rosenau v. Idaho Mut. Ben. Ass'n, 65 Idaho 408,
145 P.2d 227, 232.
AT ANY TIME. Grant of time without limit.
Haworth v. Hubbard, 220 Ind. 611, 44 N.E.2d 967,
970, 144 A.L.R. 887. Period of time limited by
circumstances. Imes v. Globe Oil & Refining Co.,
84 P.2d 1106, 1107, 1108, 184 Okl. 79. Within a
reasonable time. Haworth v. Hubbard, 220 Ind.
611, 44 N.E.2d 967, 970, 144 A.L.R. 887.
AT ANY TIME PRIOR TO. Synonymous with
"not later than". Hughes v. United States, C.C.A.
Tenn., 114 F.2d 285, 287.
AT THE END OF THE WILL.. The words "at
the end of the will" within statute providing that
every will shall be subscribed by testator at the
end of the will mean the end of the language and
not paper on which it is written. In re Golden's
Will, 300 N.Y.S. 737, 738, 165 Misc. 205; In re
Hildreth's Will, 36 N.Y.S.2d 938, 939, 940.
ATAMITA. In the civil law. A great-great-greatgrandfather's sister.
ATAVIA. In the civil law. A great-grandmother's
grandmother.
ATAVUNCULUS. The brother of a great-grandfather's grandmother, or a great-great-greatgrandfather's brother.
ATAVUS. The male ascendant in the fifth degree.
The great-grandfather's or great-grandmother's
grandfather; a fourth grandfather.
ATHA. (Spelled also Atta, Athe, Atte.) In Saxon
law. An oath; the power or privilege of exacting
and administering an oath. Spelman.
ATHEIST. One who does not believe in the existence of a God. Gibson v.. Insurance Co., 37
N.Y. 584.
ATIA. Hatred or
See De Odio et Atia.
ATILIAN LAW. See Lex Atilia.
ATILIUM. The tackle or rigging of a ship; the
harness or tackle of a plow. Spelman.
ATINIAN LAW. See Lex Atinia.
ATMATERTERA. A great-grandfather's grandmother's sister, (atavice soror;) called by Bracton
"atmaterwera magna." Bract. fol. 68b.
ATOMIZE. To reduce to atoms or atom-like particles; pulverize; spray. In re Preble, Cust. &
Pat.App., 45 F.2d 1007, 1009; Stearns-Roger Mfg.
Co. v. Greenawalt, C.C.A.Colo., 62 F.2d 1033, 1039.
ATPATRUUS. The brother of a great-grandfather's grandfather.
ATRAVESADOS. In maritime law. A Spanish
term signifying athwart, at right angles, or
abeam; sometimes used as descriptive of the position of a vessel which is "lying to." The Hugo,
D.C.N.Y., 57 F. 403, 410.
ATROCIOUS ASSAULT AND BATTERY. An assault by maiming and wounding. State v. Staw,
97 N.J.Law, 349, 116 A. 425.
AT THE COURTHOUSE DOOR. In proximity of
courthouse door. At place provided for posting
of legal notices in courthouse. Matson v. Federal
Farm Mortg. Corporation, Tex.Civ.App., 151 S.W.
2d 636, 640, 641.
AT TIME CAUSE OF ACTION ACCRUES. Is
sometimes applied to present enforcible demand,
but more often simply means to arise or come into
existence. Stone v. Phillips, 142 Tex. 216, 176 S.
W.2d 932, 933.
The ascending line of lineal ancestry runs thus: Pater,
Avus, Proavus, Abavus, Atavus, Tritavus. The seventh
generation in the ascending scale will be Tritavi-pater, and
the next above it Proavi-atavus.
ATROCITY. A word implying conduct that is
outrageously or wantonly wicked, criminal, vile,
cruel; extremely horrible and shocking. State v.
Wyman, 56 Mont. 600, 186 P. 1, 3.
ATROPINE. A drug employed for purposes of
dilating the eye so as to put the small muscles
inside the eye at rest and to prevent adhesions of
the iris and lens. De Zon v. American President
Lines, C.C.A.Cal., 129 F.2d 404, 406.
ATS. At suit of.
ATTACH. To bind, fasten, tie, or connect, to
make fast or join, and its antonyms are separate,
detach, remove. State v. Modern Box Makers,
217 Minn. 41, 13 N.W.2d 731, 733. To take or
apprehend by commandment of a writ or precept.
Buckeye Pipe-Line Co. v. Fee, 62 Ohio St. 543, 57
N.E. 446, 78 Am.St.Rep. 743.
It differs from arrest, because it takes not only the body,
but sometimes the goods, whereas an arrest is only against
the person; besides, he who attaches keeps the party
attached in order to produce him in court on the day
named, but he who arrests lodges the person arrested in
the custody of a higher power, to be forthwith disposed of.
Fleta, lib. 5, c. 24. See Attachment.
In a broad sense, "attach" indicates any seizure of property for the purpose of bringing it within the custody of
the court, and is not limited to a seizure on mesne process.
In re Clark, D.C.Mich., 11 F.2d 540, 541.
160
ATTACIE
being personally served, disobeyed original writ of summons, by keeping certain of his goods which he would forfeit if he did not appear, or by making him find securities
who would be amerced if he continued his nonappearance,
and, if after such attachment he still neglected to appear,
he would not only forfeit this security, but was compellable by a writ of distringas infinite. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191, 194, 116 A.L.R. 257.
ATTACHE. A person attached to an embassy, to
the suite of an ambassador, or to a foreign legation. One connected with an office, e. g., a public
office. Noel v. Lewis, 35 Cal.App. 658, 170 P. 857,
859.
ATTACHED. A term describing the physical
union of two otherwise independent structures or
objects, or the relation between two parts of a
single structure, each having its own function.
National Brake & Electric Co. v. Christensen, C.
C.A.Wis., 229 F. 564, 570. As applied to buildings,
the term is often synonymous with "annexed."
Williams Mfg. Co. v. Insurance Co. of North
America, 93 Vt. 161, 106 A. 657, 659.
Execution and attachment distinguished. See
Execution.
Persons
A writ issued by a court of record, commanding
the sheriff to bring before it a person who has
been guilty of contempt of court, either in neglect
or abuse of its process or of subordinate powers.
3 Bl.Comm. 280; 4 Bl.Comm. 283; Commonwealth
v. Shecter, 250 Pa. 282, 95 A. 468, 470.
The word "attached," in an affidavit of service of a
notice, used to designate a notice appearing on the reverse
side of the affidavit, is improper. Wood v. Yearous, 159
Iowa, 211, 140 N.W. 362, 364.
Property
A species of mesne process, by which a writ is
issued at the institution or during the progress
of an action, commanding the sheriff to seize the
property, rights, credits, or effects of the defendant to be held as security for the satisfaction of
such judgment as the plaintiff may recover. It is
principally used against absconding, concealed, or
fraudulent debtors. U. S. Capsule Co. v. Isaacs,
23 Ind.App. 533, 55 N.E. 832.
ATTACHIAMENTA. L. Lat. Attachment.
ATTACHIAMENTA BONORUM. A distress formerly taken upon goods and chattels, by the legal
attachiators or bailiffs, as security to answer an
action for personal estate or debt.
ATTACHIAMENTA DE PLACITUS CORONAE.
Attachment of pleas of the crown. Jewison v.
Dyson, 9 Mees. & W. 544.
To Give Jurisdiction
Where the defendant is a non-resident, or beyond the territorial jurisdiction of the court, his
goods or land within the territory may be seized
upon process of attachment; whereby he will be
compelled to enter an appearance, or the court
acquires jurisdiction so far as to dispose of the
property attached. This is sometimes called "foreign attachment." Megee v. Beirne, 39 Pa. 50;
Bray v. McClury, 55 Mo. 128. In such a case, the
proceeding becomes in substance one in rem
against the attached property. St. John v. Parsons, 54 Ohio App. 420, 7 N.E.2d 1013, 1014.
ATTACHIAMENTA DE SPINIS ET BOSCIS. A
privilege granted to the officers of a forest to take
to their own use thorns, brush, and windfalls,
within their precincts. Kenn.Par.Antiq. 209.
ATTACHIAMENTUM. L. Lat. An attachment.
ATTACHING CREDITOR. See Creditor.
ATTACHMENT. The act or process of taking,
apprehending, or seizing persons or property, by
virtue of a writ, summons, or other judicial order,
and bringing the same into the custody of the
law; used either for the purpose of bringing a
person before the court, of acquiring jurisdiction
over the property seized, to compel an appearance,
to furnish security for debt or costs, or to arrest
a fund in the hands of a third person who may become liable to pay it over. Also the writ or other
process for the accomplishment of the purposes
above enumerated, this being the more common
use of the word. A remedy ancillary to an action
by which plaintiff is enabled to acquire a lien
upon property or effects of defendant for satisfaction of judgment which plaintiff may obtain.
First Nat. Bank & Trust Co. of Vermillion v.
Kirby, 62 S.D. 489, 253 N.W. 616; Lipscomb v.
Rankin, Tex.Civ.App., 139 S.W.2d 367, 369. Though
sometimes called an ancillary or auxiliary proceeding, it is in all essential respects, a suit.
Farmers State Bank of Lexington v. Lemmer, 130
Neb. 211, 264 N.W. 415, 416.
Domestic and Foreign
In some jurisdictions it is common to give the
name "domestic attachment" to one issuing
against a resident debtor, (upon the special
ground of fraud, intention to abscond, etc.,) and
to designate an attachment against a non-resident,
or his property, as "foreign." Longwell v. Hartwell, 30 A. 495, 164 Pa. 533; David E. Kennedy,
Inc. v. Schleindl, 290 Pa. 38, 137 A. 815, 816, 53
A.L.R. 1020.
The purpose is to take defendant's property into legal
custody, so that it may be applied on defendant's debt to
plaintiff when established. John Deere Plow Co. of St.
Louis v. L. D. Jennings, Inc., 203 S.C. 426, 27 S.E.2d 571,
572; Union Bank & Trust Co. v. Edwards, 281 Ky. 693, 137
23. W.2d 344, 348.
At common law, "attachment" was procedure whereby
sheriff was, commanded to attach a defendant who, after
Black's Law Dictionary Revised 4th Ed.-11
TT
But the term "foreign attachment" more properly
belongs to the process otherwise familiarly known as
"garnishment." It was a peculiar and ancient remedy
open to creditors within the jurisdiction of the city of
London, by which they were enabled to satisfy their own
debts by attaching or seizing the money or goods of the
debtor in the hands of a third person within the jurisdiction of the city. Welsh v. Blackwell, 14 N.J.Law, 346.
This power and process survive in modern law, in all common-law jurisdictions, and are variously denominated.
"garnishment," "trustee process," or "factorizing." Raiguel v. McConnell, 25 Pa. 362, 363. A "foreign attachment"
is a mesne process issued to compel a foreign debtor to
appear to the suit of his creditor, while "attachment
execution" is a final process issued for the purpose of
enforcing a judgment already obtained. Williams v. Ricca,
324 Pa. 33, 187 A. 722, 723.
161
ATTACHMENT
ATTACHMENT EXECUTION. A name given in
some states to a process of garnishment for the
satisfaction of a judgment. As to the judgment
debtor it is an execution; but as to the garnishee
it is an original process—a summons commanding
him to appear and show cause, if any he has, why
the judgment should not be levied on the goods
and effects of the defendant in his hands. Sniderman v. Nerone, 7 A.2d 496, 499, 136 Pa.Super. 381.
ATTACHMENT OF PRIVILEGE. In English law.
A process by which a man, by virtue of his privilege, calls another to litigate in that court to
which he himself belongs, and who has the privilege to answer there. A writ issued to apprehend
a person in a privileged place. Termes de la Ley.
ATTACHMENT OF THE FOREST. One of the
three courts formerly held in forests. The highest court was called "justice in eyre's seat;" the
middle, the "swainmote;" and the lowest, the "attachment." Manwood, 90, 99.
ATTAIN. To reach or come to by progression or
motion; to arrive at; as, to attain a ripe old age.
Watkins v. Metropolitan Life Ins. Co., 156 Kan.
27, 131 P.2d 722, 723.
ATTAINDER. That extinction of civil rights and
capacities which takes place whenever a person
who has committed treason or felony receives
sentence of death for his crime. 1 Steph.Com. 408;
1 Bish.Cr.L. § 641; State v. Hastings, 37 Neb. 96,
55 N.W. 781.
The effect of "attainder" upon such felon is, in general
terms, that all his estate, real and personal, is forfeited.
Caldwell v. Hill, 179 Ga. 417, 176 S.E. 381, 386, 98 A.L.R.
1124. It differs from conviction, in that it is after judgment, whereas conviction is upon the verdict of guilty, but
before judgment pronounced, and may be quashed upon
some point of law reserved, or judgment may be arrested.
The consequences of attainder are forfeiture of property
and corruption of blood. 4 Bl.Comm. 380. At the common
law, attainder resulted in three ways, viz. : by confession,
by verdict, and by process or outlawry. The first case was
where the prisoner pleaded guilty at the bar, or having
fled to sanctuary, confessed his guilt and abjured the realm
to save his life. The second was where the prisoner
pleaded not guilty at the bar, and the jury brought in a
verdict against him. The third, when the person accused
made his escape and was outlawed. Coke, Litt. 391.
In England, by statute 33 & 34 Vict. c. 23, attainder upon
conviction, with consequent corruption of blood, forfeiture,
or escheat, is abolished. In the United States, the doctrine
of attainder is now, scarcely known, although during and
shortly after the Revolution acts of attainder were passed
by several of the states. The passage of such bills is
expressly forbidden by the constitution.
Bill of Attainder
A legislative act, directed against a designated
person, pronouncing him guilty of an alleged
crime, (usually treason,) without trial or conviction according to the recognized rules of procedure, and passing sentence of death and attainder
upon him.
prohibition in the Federal constitution. Losier v. Sherman, 157 Kan. 153, 138 P.2d 272, 273; State v. Graves, 352
Mo. 1102, 182 S.W.2d 46, 54.
ATTAINT. Attainted, stained, or blackened.
In old English practice. A writ which lay to
inquire whether a jury of twelve men had given
a false verdict, in order that the judgment might
be reversed. 3 Bl.Comm. 402; Bract. fol. 288b292; Fleta, 1, 5, c. 22, § 8.
This inquiry was made by a grand assise or jury of
twenty-four persons, usually knights, and, if they found
the verdict a false one, the judgment was that the jurors
should become infamous, should forfeit their goods and
the profits of their lands, should themselves be imprisoned,
and their wives and children thrust out of doors, should
have their houses razed, their trees extirpated, and their
meadows plowed up, and that the plaintiff should be
restored to all that he lost by reason of the unjust verdict.
3 Bl.Comm. 404; Co.Litt. 294b.
ATTAINT D'UNE CAUSE, In French law. The
gain of a suit.
ATTEMPT.
In Civil Matters
In statutes and in cases other than criminal
prosecutions an "attempt" ordinarily means an
intent combined with an act falling short of the
thing intended. In re Bergland's Estate, 180 Cal.
629, 182 P. 277, 283, 5 A.L.R. 1363. It may be described as an endeavor to do an act, carried beyond mere preparation, but short of execution.
Columbian Ins. Co. of Indiana v. Modern Laundry,
C.C.A.Minn., 277 F. 355, 358, 20 A.L.R. 1159.
In Criminal Law
An effort or endeavor to accomplish a crime,
amounting to more than mere preparation or
planning for it, which, if not prevented, would
have resulted in the full consummation of the
act attempted, but which, in fact, does not bring
to pass the party's ultimate design. Dooley v.
State, 27 Ala.App. 261, 170 So. 96, 98.
Acts amounting to mere preparation for commission of
crime, if unaccompanied by some overt act toward actual
commission, do not amount to an "attempt" and cannot be
punished as such. People v. Lombard, 131 Cal.App. 525, 21
P.2d 955. Implies an intent and an actual effort to carry
out or consummate the intent or purpose. Dooley v. State,
27 Ala.App. 261, 170 So. 96, 97, 98.
To constitute an act of attempt, the act must possess
four characteristics : First, it must be a step toward a
punishable offense ; second, it must be apparently (but not
necessarily in reality) adapted to the purpose intended;
third, it must come dangerously near to success; fourth,
it must not succeed. State v. Ainsworth, 146 Kan. 665, 72
P.2d 962.
ATTENDANT, n. One who owes a duty or service
to another, or in some sort depends upon him.
Termes de la Ley. One who follows and waits
upon another.
"Bills of attainder," as they are technically called, are
such special acts of the legislature as inflict capital punishments upon persons supposed to be guilty of high offenses,
such as treason and felony, without any conviction in the
ordinary course of judicial proceedings. If an act inflicts
a milder degree of punishment than death, it is called a
"bill of pains and penalties," but both are included in the
ATTENDANT, adj. Accompanying, or connected
with. Fletcher v. Winnfield Bottling Works, 160
La. 261, 107 So. 103, 104.
ATTENDANT TERMS. In English law, terms,
(usually mortgages,) for a long period of years,
which are created or kept outstanding for the
162
ATTORNARE
Execution and attestation are clearly distinct formalities ;
the former being the act of the party, the latter of the
witnesses only. Subscription differs from attestation, in
that the former is the mere manual or mechanical act of
signing—the act of the hand, whereas the latter signifies
the mental act of bearing witness to—the act of the senses.
In re Smith's Estate, 130 Neb. 739, 266 N.W. 611, 613.
purpose of attending or waiting upon and protecting the inheritance. 1 Steph.Comm. 351.
A phrase used in conveyancing to denote estates which
are kept alive, after the objects for which they were originally created have ceased, so that they might be deemed
merged or satisfied, for the purpose of protecting or
strengthening the title of the owner. Abbott.
ATTESTATION CLAUSE. That clause wherein
the witnesses certify that the instrument has been
executed before them, and the manner of the execution of the same.
In wills. A certificate certifying as to facts and
circumstances attending execution of will. In
re Bragg's Estate, 106 Mont. 132, 76 P.2d 57, 62.
ATTENDED BY A PHYSICIAN. As used in application for insurance, requires an attendance
with reference to some disease of a serious character, affecting sound bodily health and does not
refer to a mere temporary indisposition or an ailment trivial in its nature. Houston v. Metropolitan Life Ins. Co., 232 Mo.App. 195, 97 S.W.2d 856,
861.
ATTESTATION OF WILL. Act of witnessing
performance of statutory requirements to valid
execution. Davis v. Davis, Tex.Civ.App., 45 S.W.
2d 240, 241; Zaruba v. Schumaker, Tex.Civ.App.,
178 S.W.2d 542, 543.
ATTENTAT. Lat. He attempts.
In the civil and canon law. Anything wrongfully innovated or attempted in a suit by an inferior judge (or judge a quo) pending an appeal.
1 Addams, 22, note; Shelf.Mar. & Div. 562; Ayliffe, Parerg. 100.
There is some authority to the effect that there may be a
perfect attestation without subscription, on the theory that
attestation is mental, and subscription is mechanical. In
re Chambers' Estate, 187 Wash. 417, 60 P.2d 41, 44.
ATTENTION. Consideration; notice. The phrase
"your bill shall have attention" was held to be
ambiguous and not to amount to an acceptance of
the bill. 2 B. & Aid. 113.
ATTESTED COPY. See Attest.
ATTESTING WITNESS. One who signs his name
to an instrument, at the request of the party or
parties, for the purpose of proving and identifying
it. In re McDonough's Estate, 193 N.Y.S. 734, 736,
201 App.Div. 203.
ATTERMINARE. In old English law. To put
off to a succeeding term; to prolong the time of
payment of a debt. Stat.Westm. 2, c. 4; Cowell;
Blount.
ATTESTOR. One who attests or vouches for.
ATTESTOR OF A CAUTIONER. In Scotch practice. A person who attests the sufficiency of a
cautioner, and agrees to become subsidiarie liable
for the debt. Bell.
ATTERMINING. In old English law. A putting
off; the granting of a time or term, as for the
payment of a debt. Cowell.
ATTERMOIEMENT. In canon law. A making
terms; a composition, as with creditors. 7 Low.C.
272, 306.
ATTILE. In old English law. The rigging or furniture of a ship. Jacob, L.Dict. Rigging; tackle.
Cowell.
ATTEST. To bear witness to; to bear witness
to a fact; to affirm to be true or genuine; to act
as a witness to; to certify; to certify to the verity of a copy of a public document; formally by
signature; to make solemn declaration in words
or writing to support a fact; to signify by subscription of his name that the signer has witnessed
the execution of the particular instrument. Lindsey v. Realty Trust Co., Tex.Civ.App., 75 S.W.2d
322, 324; City Lumber Co. of Bridgeport v. Borsuk,
131 Conn. 640, 41 A.2d 775, 778.
ATTINCTA, L. Lat. An attaint, stain, or blackening; a conviction or finding of guilty of some
offense. Adams Gloss.
Also the technical word by which, in the practice in
many of the states, a certifying officer gives assurance of
the genuineness and correctness of a copy. Thus, an
"attested" copy of a document is one which has been
examined and compared with the original, with a certificate or memorandum of its correctness, signed by the persons who have examined it. Gerner v. Mosher, 58 Neb.
135, 78 N.W. 384, 46 L.R.A. 244.
ATTESTATION. The act of witnessing an instrument in writing, at the request of the party making the same, and subscribing it as a witness. In
re Jones' Estate, 101 Wash. 128, 172 P. 206, 207.
The act of witnessing the execution of a paper
and subscribing the name of the witness in testimony of such fact. In re Carlson's Estate, 156
Or. 597, 68 P.2d 119, 121.
ATTORN. To turn over; to transfer to another
money or goods; to assign to some particular
use or service. Hemminger v. Klaprath, 15 N.J.
Misc. 163, 189 A. 363, 364. To consent to the transfer of a rent or reversion. To agree to become
tenant to one as owner or landlord of an estate
previously held of another, or to agree to recognize a new owner of a property or estate and
promise payment of rent to him. Hurley v. Stevens, 220 Mo.App. 1057, 279 S.W. 720, 722.
Feudal Law
To turn over; to transfer to another money or
goods; to assign to some particular use or service. 2 Bla.Comm. 288; 1 Spence, Eq.Jur. 137.
Where a lord aliened his seigniory, he might, with the
consent of the tenant, and in some cases without, attorn
or transfer the homage and service of the latter to the
alienee or new lord. Bract. fols. 81b, 82.
ATTORNARE, Lat. To attorn; to transfer or
turn over; to appoint an attorney or substitute.
163
ATTORNARE
ATTORNARE REM. To turn over money or
goods, i. e., to assign or appropriate them to some
particular use or service.
ATTORNATO FACIENDO VEL RECIPIENDO.
An obsolete writ, which commanded a sheriff or
steward of a county court or hundred court to
receive and admit an attorney to appear for the
person that owed suit of court. Fitz.N.B. 156, 349.
ATTORNATUS. One who is attorne y , or put in
the place of another; a substitute; hence, an attorney. 7 C.J.S. p. 694.
ATTORNATUS FERE IN OMNIBUS PERSONAM
DOMINI REPRESENTAT. An attorney represents the person of his master in almost all respects. Adams Gloss., citing Bract. fol. 342.
ATTORNE. L. Fr. In old English law. An attorney. Britt. c. 126.
tice and formal parts of the suit, while "counsellor" is the
adviser, or special counsel retained to try the cause. Rap.
& L.
—
Attorney in fact. A private attorney authorized
by another to act in his place and stead, either for
some particular purpose, as to do a particular act,
or for the transaction of business in general, not
of a legal character. This authority is conferred
by an instrument in writing, called a "letter of attorney," or more commonly a "power of attorney." Treat v. Tolman, C.C.A.N.Y., 113 F.
893, 51 C.C.A. 522; Massachusetts Bonding & Insurance Co. v. Bankers' Surety Co., 96 Ind.App.
250, 179 N.E. 329, 334.
This term is employed to designate persons who act
under a special agency, or a special letter of attorney, so
that they are appointed in fact-um, for the deed, or special
act to be performed; but in a more extended sense it
includes all other agents employed in any business, or to do
any act or acts in pais for another. Bacon, Abr. Attorney; Story, Ag. § 25.
—Attorney of record. Attorney whose name must
appear somewhere in permanent records or files
of case, or on the pleadings or some instrument
filed in the case, or on appearance docket. Delaney v. Husband, 64 N.J.L. 275, 45 A. 265. Person whom the client has named as his agent
upon whom service of papers may be made.
Reynolds v. Reynolds, 21 Ca1.2d 580, 134 P.2d 251,
254.
—Attorney of the wards and liveries. In English
law. This was the third officer of the duchy court.
Bac.Abr. "Attorney."
—Attorney's certificate. In English practice, a
When used with reference to the proceedings of courts,
certificate of the commissioners of stamps that
or the transaction of business in the courts, the term
the attorney therein named has paid the annual
always means "attorney at law" (q. v.) unless a contrary
tax or duty. This must be renewed yearly; and
meaning is clearly indicated. In re Morse, 98 Vt. 85, 126
the penalty for practising without such certificate
A. 550, 551, 36 A.L.R. 527.
is fifty pounds; Stat. 37 Geo. III. c. 90, §§ 26, 28,
"Lawyer" and "attorney" are synonymous. Peo30. See also 7 & 8 Vict. c. 73, §§ 21-26; 16 & 17
ple v. Taylor, 56 Colo. 441, 138 P. 762, 763.
Vict. c. 63.
—Attorney ad hoc. See Ad Hoc.
—Attorney's lien. See Attorney's Lien.
—Attorney at large. In old practice. An attorney
—Letter of attorney. A power of attorney; a
who practiced in all the courts. Cowell.
written instrument by which one person constitutes another his true and lawful attorney, in or—Attorney at law. An advocate, counsel, or offi- der that the latter may do for the former, and in
cial agent employed in preparing, managing, and his place and stead, some lawful act. People v.
trying cases in the courts. An officer in a court Smith, 112 Mich. 192, 70 N.W. 466, 67 Am.St.Rep.
of justice, who is employed by a party in a cause
392. An instrument of writing, appointing an atto manage it for him. In re Bergeron, 220 Mass.
torney in fact for an avowed purpose and setting
472, 107 N.E. 1007, 1008, Ann.Cas.1917A, 549.
forth his powers and duties. Mullins v. CommonIn English law. A public officer belonging to the supewealth, 179 Ky. 71, 200 S.W. 9, 11. It is, in effect,
rior courts of common law at Westminster, who conducted
a mere contract of agency. Filtsch v. Bishop, 118
legal proceedings on behalf of others, called his clients,
Okl. 272, 247 P. 1110, 1111. A general power auby whom he was retained; he answered to the solicitor in
the courts of chancery, and the proctor of the admiralty,
thorizes the agent to act generally in behalf of
ecclesiastical, Probate, and divorce courts. An attorney
the principal. A special power is one limited to
was almost invariably also a solicitor. It is now provided
particular acts.
by the judicature act, 1873, § 87, that solicitors, attorneys,
Dr proctors of, or by law empowered to practice in, any
—Power
of attorney. Commonly meant the incourt the jurisdiction of which is by that act transferred
strument by which authority of one person to act
to the high court of justice or the court of appeal, shall
be called "so .citors of the supreme court." Wharton.
in place and stead of another as attorney in fact
The term 'attorney at law," as used in the United
is set forth. In re Katz' Estate, 274 N.Y.S. 202,
States, usua ly includes "barrister," "counsellor," and
152 Misc. 757.
"solicitor," in the sense in which those terms are used in
England. In some states, as well as in the United States
—Public attorney. A name sometimes given to an
supreme court, "attorney" and "counsellor" are distinattorney at law, as distinguished from a private
guishable, the former term being applied to the younger
attorney, or attorney in fact.
members of the bar, and to those who carry on the prac164
ATTORNEY. In the most general sense this
term denotes an agent or substitute, or one who is
appointed and authorized to act in the place or
stead of another. Nardi v. Poinsatte, D.C.Ind.,
46 F.2d 347, 348. An agent, or one acting on behalf of another. Sherts v. Fulton Nat. Bank of
Lancaster, 342 Pa. 337, 21 A.2d 18.
One who s put in place, stead, and turn of another to ma lage his matters of law. Kaufman v.
Jurczak, 102 N.J.Eq. 66, 139 A. 716. An agent
employed by party to case to manage it for him.
McLyman v. Miller, 52 R.I. 374, 161 A. 111, 112.
AU
ATTORNEYSHIP. The office of an agent or at-
ATTORNEY GENERAL.
torney.
English Law
The chief law officer of the realm, being created
by letters patent, whose office is to exhibit informations and prosecute for the crown in matters
criminal, and to file bills in the exchequer in any
matter concerning the king's revenue. 3 Bla.
Comm. 27; Termes de la Ley; Wilentz v. Hendrickson, 133 N.J.Eq. 447, 33 A.2d 366, 374.
ATTORNMENT. In feudal and old English law.
A turning over or transfer by a lord of the services of his tenant to the grantee of his seigniory.
Attornment is the act of a person who holds a
leasehold interest in land, or estate for life or
years, by which he agrees to become the tenant
of a stranger who has acquired the fee in the land,
or the remainder or reversion, or the right to the
rent or services by which the tenant holds. Snyder v. Bernstein Bros., 201 Iowa, 931, 208 N.W. 503,
504. It is an act by which a tenant acknowledges
his obligation to a new landlord. Del-New Co. v.
James, 167 A. 747, 748, 111 N.J.L. 157.
And requires an overt act by the tenant. Hemminger v. Klaprath, 189 A. 363, 15 N.J.Misc. 163.
American Law
The attorney general of the United States is the
head of the department of justice, appointed by
the president, and a member of the cabinet. He
appears in behalf of the government in all cases
in the supreme court in which the government
is interested, and gives his legal advice to the
president and heads of departments upon questions submitted to him. Act of Sept. 24, 1789 (5
U.S.C.A. §§ 291, 303, 309).
He is the chief law officer of the federal and state governments with the duty of representing the sovereign,
national or state. Johnson v. Commonwealth, ex rel.
Meredith, 291 Ky. 829, 165 S.W.2d 820, 826.
In each state also there is an attorney general,
or similar officer, who appears for the people, as
in England the attorney general appears for the
crown. State v. District Court, 22 Mont. 25, 55
Pac. 916; He is the chief law officer of the state
and head of the legal department. People v.
Newcomer, 284 Ill. 315, 120 N.E. 244, 247; Darling
Apartment Co. v. Springer, 22 A.2d 397, 403, 25
Del. 420, 137 A.L.R. 803.
ATTORNEY GENERAL'S BILL. An indictment
presented to grand jury by leave of court without
prior complaint before magistrate and holding
for court. Commonwealth v. Wilson, 134 Pa.
Super. 222, 4 A.2d 324, 327.
ATTORNEY'S LIEN. The right of an attorney at
law to hold or retain in his possession the money
or property of a client until his proper charges
have been adjusted and paid. It requires no equitable proceeding for its establishment. Sweeley
v. Sieman, 123 Iowa, 183, 98 N.W. 571. Also a
lien on funds in court payable to the client, or on
a judgment or decree or award in his favor, recovered through the exertions of the attorney, and
for the enforcement of which he must invoke the
equitable aid of the court. Fowler v. Lewis, 36 W.
Va. 112, 14 S.E. 447.
Charging lien. An attorney's lien, for his proper compensation, on the fund or judgment which his client has recovered by means of his professional aid and services. Goodrich v. McDonald, 112 N.Y. 157, 19 N.E. 649; In re Craig,
157 N.Y.S. 310, 311, 171 App.Div. 218. It is a specific
lien covering only the services rendered by an attorney in
the action in which the judgment was obtained, whereas
a retaining lien is a general lien for the balance of the
account between the attorney and his client, and applies
to the property of the client which may come into the
attorney's possession in the course of his employment. In
re Heinsheimer, 143 N.Y.S. 895, 896, 159 App.Div. 33.
Retaining lien. The lien which an attorney has upon all
his client's papers, deeds, vouchers, etc., which remain in
his possession, entitling him to retain them until satisfaction of his claims for professional services. In re Wilson,
D.C.N.Y., 12 F. 239; It is a general lien. Roxana Petroleum Co. v. Rice, 109 Okl. 161, 235 P. 502, 507.
The doctrine of attornment grew out of the peculiar
relations existing between the landlord and his tenant
under the feudal law, and the reasons for the rule never
had any existence in this country, and is inconsistent with
our laws, customs and institutions. Beyond its application
to estop a tenant from denying the title of his landlord, it
can serve but little, if any, useful purpose. Perrin v. Lepper, 34 Mich. 292.
ATTRACTIVE AGENCIES DOCTRINE. See Attractive Nuisance Doctrine. Schock v. Ringling
Bros. and Barnum & Bailey Combined Shows,
5 Wash. 599, 105 P.2d 838, 843.
ATTRACTIVE INSTRUMENTALITIES DOCTRINE. See Attractive Nuisance Doctrine.
Schock v. Ringling Bros. and Barnum & Bailey
Combined Shows, 5 Wash.2d 599, 105 P.2d 838, 843.
ATTRACTIVE NUISANCE DOCTRINE. The doctrine is that one maintaining on his premises a
condition, instrumentality, machine or other agency, which is dangerous to young children because
of their inability to appreciate peril and may reasonably be expected to attract them to premises,
owes duty to exercise reasonable care to protect
them against dangers of such attraction. Schock
v. Ringling Bros. and Barnum & Bailey Combined
Shows, 5 Wash.2d 599, 105 P.2d 838, 843.
The doctrine, is that person who has an instrumentality,
agency, or condition upon his own premises, or who creates such condition on the premises of another, or in a
public place, which may reasonably be apprehended to be
a source of danger to children, is under a duty to take such
precautions as a reasonably prudent man would take to
prevent injury to children of tender years whom he knows
to be accustomed to resort there, or who may, by reason
of something there which may be expected to attract
them, come there to play. Atlantic Coast Line R. Co. v.
O'Neal, 48 Ga.App. 706, 172 S.E. 740, 741. It does not
apply to natural condition or common dangers existing in
order of nature, McCall v. McCallie, 48 Ga.App. 99, 171 S.E.
843, 844, applies only in favor of children of tender years,
too young to appreciate danger. Drew v. Lett, 95 Ind. App.
89, 182 N.E. 547, 548. Requires that the attraction be visible from a public place or a place where children have a
right to be. Rokicki v. Polish Nat. Alliance of United
States of North America, 314 Ill.App. 380, 41 N.E.2d 300.
AU BESOIN. Fr. In case of need. "Au besoin
chez Messieurs
a
." "In case of need, apply to Messrs.
". A phrase someat
times used in the direction of a bill of exchange,
pointing out the person to whom application may
be made for payment in case of failure or refusal
of the drawee to pay. Story, Bills § 65.
165
AUBAINE
AUBAINE. See Droit d'Aubaine.
AUCTION. A public sale of land or goods, at
public outcry, to the highest bidder. Perry Trading Co. v. City of Tallahassee, 128 Fla. 424, 174
So. 854, 857, 111 A.L.R. 463.
A sale by auction is a, sale by public outcry to the
highest bidder on the spot. Barber Lumber Co. v. Gifford,
25 Idaho, 654, 139 P. 557, 560.
While auction is very generally defined as a sale to the
highest bidder, and this is the usual meaning, there may
be a sale to the lowest bidder, as where land is sold for
non-payment of taxes to whomsoever will take it for the
shortest term; or where a contract is offered to the one
who will perform it at the lowest price. And these appear
fairly included In the term "auction." Abbott.
Dutch Auction
A method of sale by auction which consists in
the public offer of the property at a price beyond
its value, and then gradually lowering the price
until some one becomes the purchaser. Crandall
v. State, 28 Ohio St. 482.
AUCTORITATES PHILOSOPHORUM, MEDICORUM, ET POETARUM, SUNT IN CAUSIS
ALLEGANDZE ET TENENDJE. The opinions of
philosophers, physicians, and poets are to be alleged and received in causes. Co.Litt. 264.
AUCUPIA VERBORUM SUNT JUDICE INDIGNA. Catching at words is unworthy of a judge.
Hob. 343. Applied in State v. Flemming, 66 Me.
142, 151, 22 Am.R. 552.
AUDI ALTERAM PARTEM. Hear the other side;
hear both sides. No man should be condemned
unheard. Broom, Max. 113; L.R. 2 P.C. 106; Lowry v. Inman, 46 N.Y. 119; Shaw v. Stone, 1 Cush.
( Mass.) 243.
AUDIENCE. In international law. A hearing;
interview with the sovereign. The king or other
chief executive of a country grants an audience
to a foreign minister who comes to him duly accredited; and, after the recall of a minister, an
"audience of leave" ordinarily is accorded to him.
Public Auction
A sale of property at auction, where any and
all persons who choose are permitted to attend
and offer bids. The phrase imports a sale to the
highest and best bidder with absolute freedom for
competitive bidding. State v. Miller, 52 Mont.
562, 160 P. 513, 515.
Though this phrase is frequently used, It is doubtful
whether the word "public" adds anything to the force of
the expression, since4"auction" itself imports publicity. If
there can be such a thing as a private auction, it must be
one where the property is sold to the highest bidder, but
only certain persons, or a certain class of persons, are
permitted to be present or to offer bids.
AUCTIONARLzE. Catalogues of goods for public
sale or auction.
AUCTIONARIUS. A seller; a regrator; a retailer; one who bought and sold; an auctioneer,
in the modern sense. Spelman, Gloss. One who
buys poor, old, worn-out things to sell again at a
greater price. Du Cange.
AUCTIONEER. A person authorized or licensed
by law to sell lands or goods of other persons at
public auction; one who sells at auction. City of
Chicago v. Ornstein, 323 Ill. 258, 154 N.E. 100, 52
A.L.R. 489; One who sells goods at public auction
for another on commission, or for a recompense.
State ex rel. Danziger v. Recorder of Mortgages
for Parish of Orleans, 206 La. 259, 19 So.2d 129,
132.
Auctioneers differ from brokers, in that the latter may
both buy and sell, whereas auctioneers can only sell; also
brokers may sell by private contract only, and auctioneers
by public auction only. Auctioneers can only sell goods
for ready money, but factors may sell upon credit. Wilkes
v. Ellis, 2 H. BI. 557; Steward v. Winters, 4 Sandf.Ch.
( N. Y.) 590.
AUCTOR. In the Roman law. An auctioneer.
In the civil law. A grantor or vendor of any
kind.
In old French law. A plaintiff. Kelham.
AUCTORITAS. In the civil law. Authority.
In old European law. A diploma, or royal
charter. A word frequently used by Gregory of
Tours and later writers. Spelman.
AUDIENCE COURT. In English law. A court
belonging to the Archbishop of Canterbury, having jurisdiction of matters of form only, as the
confirmation of bishops, and the like. This court
has the same authority with the Court of Arches,
but is of inferior dignity and antiquity. The Dean
of the Arches is the official auditor of the Audience court. The Archbishop of York has also
his Audience court.
AUDIENDO ET TERMINANDO. A writ or commission to certain persons to appease and punish
any insurrection or great riot. Fitzh.Nat.Brev.
110.
AUDIT, n. The process of auditing accounts;
the hearing and investigation had before an auditor. People v. Barnes, 114 N.Y. 317, 20 N.E. 609;
An official examination of an account or claim,
comparing vouchers, charges, and fixing the balance. Williams v. Tompkins, Tex.Civ.App., 42
S.W.2d 106, 110.
AUDIT, v. To hear; to examine an account; and
in a broad sense it includes its adjustment or allowance, disallowance, or rejection. New York
Catholic Protectory v. Rockland County, 144 N.Y.
S. 552, 556, 159 App.Div. 455. An audience; a
hearing; an examination in general; a formal
or official examination and authentication of accounts, with witnesses, vouchers, etc. GreenBoots Const. Co. v. State Highway Commission,
165 Oki. 288, 25 P.2d 783.
Sometimes restricted to a mere mathematical calculation or process, but, in its generally accepted sense,
includes an investigation and weighing of the evidence and
deciding of whether entries in books are true and correct.
Lumber Mut. Casualty Ins. Co. of New York v. Horowitz,
1 N.Y.S.2d 191, 193, 165 Misc. 506.
166
AUNCEL
AUDITA QUERELA. The name of a writ constituting the initial process in an action brought by
a judgment defendant to obtain relief against the
consequences of the judgment, on account of some
matter of defense or discharge, arising since its
rendition and which could not be taken advantage
of otherwise. Barnett v. Gitlitz, 290 Ill.App. 212,
8 N.E.2d 517, 520. May also lie for matters arising before judgment where defendant had no opportunity to raise such matters in defense. Louis
E. Bower, Inc., v. Silverstein, 298 Ill.App. 145, 18
N.E.2d 385, 387.
AUGUSTA LEGIBUS SOLUTA NON EST. The
empress or queen is not privileged or exempted
from subjection to the laws. 1 Bl.Comm. 219;
Dig. 1, 3, 31.
In some states, where the same relief may be obtained
by motion, the remedy by motion has superseded the
ancient remedy.
AULA ECCLESLE. A nave or body of a church
where temporal courts were anciently held.
AUDITOR. A public officer whose function is to
examine and pass upon the accounts and vouchers
of officers who have received and expended public money by lawful authority. An officer who
examines accounts and verifies the accuracy of
the statements therein. Hicks v. Davis, 100 Kan.
4, 163 P. 799.
General
Auditor of the imprest. Any of several officers
in the English exchequer, who formerly had the
charge of auditing the accounts of the customs,
naval and military expenses, etc., now performed
by the commissioners for auditing public accounts.
Jacob.
AULA REGIS. (Called also Aula Regia.) The
king's hall or palace. The chief court of England
in early Norman times. It was established by
William the Conqueror in his own hall. It was
composed of the great officers of state, resident in
the palace, and followed the king's household in
all his expeditions. See, also, Curia Regis.
Auditor of the receipts. An officer of the English exchequer. 4 Inst. 107.
State auditor. An officer whose business is to
examine and certify accounts and claims against
the state and to keep an account between the state
and its treasurer. State v. Jorgenson, 29 N.D. 173,
150 N.W. 565, 567.
English Law
An officer or agent of the crown, or of a private
individual, or corporation, who examines periodically the accounts of under officers, tenants, stewards, or bailiffs, and reports the state of their accounts to his principal.
Practice
An officer (or officers) of the court, assigned to
state the items of debit and credit between the
parties in a suit where accounts are in question,
and exhibit the balance. Campbell v. Crout, 3
R.I. 60.
AULA. In old English law. A hall, or court;
the court of a baron, or manor; a court baron.
Spelman.
This word was employed in mediaeval England along
with curia; it was used of the meetings of the lord's men
held there in the same way that the word court was used.
McIlwain, High Court of Parl. 30.
AULIC. Pertaining to a royal court.
AULIC COUNCIL. In the old German empire, the
personal council of the emperor, and one of the
two supreme courts of the empire which decided
without appeal. It was instituted about 1502, was
modified in 1654, and ceased to exist on the extinction of the German Empire in 1806. The title was
also given to the Council of State of the former
Emperor of Austria. Cent.Dict.
AULNAGE. See Alnager.
AULNAGER. See Alnager.
AUMEEN. In Indian law. Trustee; commissioner; a temporary collector or supervisor, appointed
to the charge of a country on the removal of a
zemindar, or for any other particular purpose of
local investigation or arrangement.
AUMIL. In Indian law. Agent; officer; native
collector of revenue; superintendent of a district
or division of a country, either on the part of the
government zemindar or renter.
AUMILDAR. In Indian law. Agent; the holder
of an office; an intendant and collector of the revenue, uniting civil, military, and financial powers
under the Mohammedan government.
AUGMENTATION. The increase of the crown's
AUMONE, SERVICE IN. Where lands are given
revenues from the suppression of religious houses
in alms to some church or religious house, upon
and the appropriation of their lands and revenues.
condition that a service or prayers shall be ofAlso the name of a court (now abolished) erected
fered at certain times for the repose of the do27 Hen. VIII., to determine suits and controversies
nor's soul. Britt. 164.
relating to monasteries and abbey-lands. The
court was dissolved in the reign of Mary, but the
AUNCEL WEIGHT. In English law. An ancient
office of augmentations remained long after. mode of weighing, described by Cowell as "a kind
Cowell.
of weight with scales hanging, or hooks fastened
A share of the great tithes temporarily granted to each end of a staff, which a man, lifting up
to the vicars by the appropriators, and made per- upon his forefinger or hand, discerneth the quality
petual by statute 29 Car. II. c. 8. The word is
or difference between the weight and the thing
used in a similar sense in the Canadian law.
weighed."
167
AUNT
AUNT. The sister of one's father or mother, and
a relation in the third degree, correlative to niece
or nephew. See 2 Comyn, Dig. 474; Dane, Abr. c.
126, a. 3, § 4.
AURA EPILEPTICA. In medical jurisprudence,
a term used to designate the sensation of a cold
vapor frequently experienced by epileptics before
the loss of consciousness occurs in an epileptic fit.
Aurentz v. Anderson, 3 Pittsb.R. (Pa.) 311.
AURES. A Saxon punishment by cutting off the
ears, inflicted on those who robbed churches, or
were guilty of any other theft.
AURUM REGINAZE. Queen's gold. A royal revenue belonging to every queen consort during her
marriage with the king.
AUSTRALIAN BALLOT. An official ballot on
which the names of all the candidates are printed.
Its use is accompanied by safeguards designed to
maintain secrecy in voting. The so-called Australian ballot laws, widely adopted in various
forms in the United States, have generally been
sustained by the courts. 29 C.J.S. p. 224.
AUSTRALIAN WOOL. A fine grade of wool
grown in Australia. Federal Trade Commission
v. Winsted Hosiery Co., 42 S.Ct. 384, 385, 258 U.S.
483, 66 L.Ed. 729.
AUTER, Autre. L. Fr. Another; other. See
Autre.
AUTHENTIC. Genuine; true; real; pure; reliable; trustworthy; having the character and authority of an original; duly vested with all necessary formalities and legally attested; competent, credible, and reliable as evidence. Downing
v. Brown, 3 Colo. 590; Woods v. Jastremski, 201
La. 1092, 11 So.2d 4, 8.
AUTHENTIC ACT. In the civil law. An act
which has been executed before a notary or public officer authorized to execute such functions, or
which is testified by a public seal, or has been rendered public by the authority of a competent magistrate, or which is certified as being a copy of a
public register. Nov. 73, c. 2; Cod. 7, 52, 6, 4, 21;
Dig. 22, 4; Mossier Acceptance Co. v. Osborne, La.
App., 14 So.2d 492, 493.
AUTHENTICATION. In the law of evidence.
The act or mode of giving authority or legal authenticity to, a statute, record, or other written
instrument, or a certified copy thereof, so as to
render it legally admissible in evidence. Voloshin v. Ridenour, C.C.A.Canal Zone, 299 F. 134.
Verifications of judgments. Collette v. Hanson,
174 A. 466, 467, 133 Me. 146.
An attestation made by a proper officer by which he
certifies that a record is in due form of law, and that the
person who certifies it is the officer appointed so to do.
Acts done with a view of causing an instrument to be
known and identified.
translated entire, in order to distinguish it from
the epitome made by Julian. 1 Mackeldey, Civ.
Law, § 72. A collection of extracts made from
the Novels by a lawyer named Irnier, which he
inserted in the code at the places to which they
refer. These extracts have the reputation of not
being correct. Merlin, Rópert. Authentique.
AUTHENTICUM. In the civil law. An original
instrument or writing; the original of a will or
other instrument, as distinguished from a copy.
Dig. 22, 4, 2; Id. 29, 3, 12.
AUTHOR. One who produces, by his own intellectual labor applied to the materials of his composition, an arrangement or compilation new in
itself. Lithographic Co. v. Sarony, 4 S.Ct. 279, 111
U.S. 53, 28 L.Ed. 349.
A beginner or mover of anything; hence efficient cause
of a thing ; creator ; originator ; a composer, as distinguished from an editor, translator or compiler. Remick
Music Corp. v. Interstate Hotel Co. of Neb., D.C.Neb., 58
F.Supp. 523, 531.
AUTHORITIES. Citations to statutes, precedents,
judicial decisions, and text-books of the law, made
on the argument of questions of law or the trial of
causes before a court, in support of the legal positions contended for, or adduced to fortify the
opinion of a court or of a text writer upon any
question.
AUTHORITY. Permission. People v. Howard, 31
Cal.App. 358, 160 P. 697, 701. Control over, jurisdiction. State v. Home Brewing Co. of Indianapolis, 182 Ind. 75, 105 N.E. 909, 916. Often synonymous with power. State v. District Court of
Eighth Judicial Dist. in and for Natrona County,
33 Wyo. 281, 238 P. 545, 548. The power delegated
by a principal to his agent. Clark v. Griffin, 95
N.J.Law, 508, 113 A. 234, 235. The lawful delegation of power by one person to another. RucksBrandt Const. Co. v. Price, 165 Oki. 178, 23 P.2d
690, 692. Power of agent to affect legal relations
of principal by acts done in accordance with principal's manifestations of consent to agent. In re
Fitzpatrick's Estate, Sur., 17 N.Y.S.2d 280, 288.
General
Authority by estoppel. Not actual, but apparent
only, being imposed on the principal because his
conduct has been such as to mislead, so that it
would be unjust to let him deny it. Moore v.
Switzer, 78 Colo. 63, 239 P. 874, 875. See Apparent Authority.
Authority coupled with an interest. Authority
given to an agent for a valuable consideration, or
which forms part of a security. See Unger v.
Newlin Haines Co., 94 N.J.Eq. 458, 120 A. 331,
335.
Apparent authority. That which, though not
actually granted, the principal knowingly permits the agent to exercise, or which he holds him
out as possessing. L. E. Mumford Banking Co. v.
AUTHENTICS. In the civil law. A Latin trans- Farmers' & Merchants' Bank of Kilmarnock, 116
lation of the Novels of Justinian by an anony- Va. 449, 82 S.E. 112, 118. See Authority by Esmous author; so called because the Novels were toppel.
168
AUTOMOBILE
St. P. Ry. Co., 274 Mo. 671, 205 S.W. 181, 186; and
sometimes as equivalent to "directed"; U. S. Sugar Equalization Board v. P. De Ronde & Co., C.
C.A.Del., 7 F.2d 981, 986; or to similar mandatory
language. Catron v. Marron, 19 N.M. 200, 142
P. 380, 382. The word indicates merely possessed
of authority; that is, possessed of legal or rightful power, the synonym of which is "competency."
Doherty v. Kansas City Star Co., 143 Kan. 802, 57
P.2d 43, 45.
Express authority. That given explicitly, either
In writing or orally. See Express Authority.
General authority. That which authorizes the
agent to do everything connected with a particular
business. Story, Ag. § 17. It empowers him to
bind his principal by all acts within the scope of
his employment; and it cannot be limited by any
private direction not known to the party dealing
with him. Paley, Ag. 199.
Implied authority. Actual authority circumstantially proved. Koivisto v. Bankers' & Merchants'
Fire Ins. Co., 148 Minn. 255, 181 N.W. 580, 582.
That which the principal intends his agent to possess, and which is implied from the principal's
conduct. Moore v. Switzer, 78 Colo. 63, 239 P.
874, 875. It includes only such acts as are incident
and necessary to the exercise of the authority
expressly granted. Coulson v. Stevens, 122 Miss.
797, 85 So. 83, 85.
AUTO ACORDADO. In Spanish colonial law.
An order emanating from some superior tribunal,
promulgated in the name and by the authority of
the sovereign. Schm.Civil Law, 93.
AUTO LIVERY SERVICE. The business of furnishing for hire an automobile with a chauffeur,
the car to be driven where the hirer directs. The
term is also applied to the business of leasing
driverless cars. See Collette v. Page, 44 R.I. 26,
114 A. 136, 18 A.L.R. 74.
See Automobile; Drive it Yourself Cars.
Limited authority. Such authority as the agent
has when he is bound by precise instructions.
AUTO-OPTIC EVIDENCE. An exhibit of a thing
offered before jury as evidence to be seen through
jury's own eyes. Johnson v. State, 139 Tex.Cr.R.
279, 139 S.W.2d 579, 581. See, also, Autoptic
Proference.
Naked authority. That arising where the principal delegates the power to the agent wholly for
the benefit of the former.
Special authority. That which is confined to an
individual transaction. Whitehead v. Tuckett, 15
East, 400, 408. Such an authority does not bind
the principal, unless it is strictly pursued. Paley,
Ag. 202.
AUTO STAGE. A motor vehicle used for the
purpose of carrying passengers, baggage, or
freight on a regular schedule of time and rates.
State v. Ferry Line Auto Bus Co., 99 Wash. 64,
168 P. 893, 894. See Automobile.
Unlimited authority. That possessed by an
agent when he is left to pursue his own discretion.
AUTOCRACY. The name of an unlimited monarchical government. A government at the will
of one man, (called an "autocrat,") unchecked by
constitutional restrictions or limitations.
Governmental Law
Legal power; a right to command or to act;
the right and power of public officers to require
obedience to their orders lawfully issued in the
scope of their public duties.
In the English law relating to public administration, an authority is a body having jurisdiction in certain matters of a public nature.
AUTOGRAPH. One's handwriting.
AUTOGRAPHIC. Self-writing or self-recording.
In re Autographic Register Co., Cust. & Pat.App.,
39 F.2d 718.
AUTOMATIC. Having inherent power of action
or motion; self-acting or self-regulating; mechanical. American Roll Gold Leaf Co. v. W. H.
Coe Mfg. Co., C.C.A.R.I., 212 F. 720, 724.
AUTHORITY OF THE COURT. The official power of the court. In re Bassett, 15 N.Y.S.2d 737,
745, 172 Misc. 613.
AUTHORITY TO EXECUTE A DEED. Must be
given by deed. Blood v. Goodrich, 9 Wend. (N.Y.)
68, 75, 24 Am.Dec. 121.
AUTHORIZE. To empower; to give a right or
authority to act. Board of Com'rs of Sedgwick
County v. Toland, 121 Kan. 109, 245 P. 1019, 1021.
To clothe with authority, warrant, or legal power.
Arkansas & Memphis Ry. Bridge & Terminal Co.
v. State, 174 Ark. 420, 295 S.W. 378, 380. To permit a thing to be done in the future. Gray v. Gill,
210 N.Y.S. 658, 660, 125 Misc. 70. It has a mandatory effect or meaning, implying a direction to
act. Quality Building & Securities Co. v. Bledsoe,
125 Cal.App. 493, 14 P.2d 128, 132.
"Authorized" is sometimes construed as equivalent to "permitted"; Crecelius v. Chicago, M. &
AUTOMATISM. In medical jurisprudence, this
term is applied to actions or conduct of an individual apparently occurring without will, purpose,
or reasoned intention on his part; a condition
sometimes observed in persons who, without
being actually insane, suffer from an obscuration
of the mental faculties, loss of volition or of memory, or kindred affections. "Ambulatory automatism" describes the pathological impulse to purposeless and irresponsible wanderings from place
to place often characteristic of patients suffering
from loss of memory with dissociation of personality.
AUTOMOBILE. A vehicle for the transportation
of persons or property on the highway, carrying
its own motive power and not operated upon fixed
169
AUTOMOBILE
tracks. Blashfield's Cyclopedia of Automobile
Law, vol. 1, c. 1, § 2.
A wheeled vehicle propelled by gasoline, steam,
or electricity. Stanley v. Tomlin, 143 Va. 187, 129
S.E. 379, 382. A self-propelled vehicle suitable for
use on a street or roadway. State v. Freels, 136
Tenn. 483, 190 S.W. 454; A vehicle designed mainly for the transportation of persons, equipped
with an internal combustion, hydrocarbon vapor
engine furnishing the motive power and forming
a structural portion thereof. American-La France
Fire Engine Co. v. Riordan, C.C.A.N.Y., 6 F.2d 964,
967. It is generic term, covering both trucks and
passenger cars. Wiese v. Polzer, 212 Wis. 337, 248
N.W. 113, 116.
For "Auto Stage," "Family Automobile Doctrine," "Family Car Doctrine," and "Family Purpose Doctrine," see those titles.
AUTRE VIE. Another's life. A person holding an
estate for or during the life of another is called
a tenant "pur autre vie," or "pur terme d'autre
vie." Litt. § 56; 2 Bl.Comm. 120. See Estate Pur
Autre Vie.
AUTREFOIS. L. Fr. At another time; formerly; before; heretofore.
AUTREFOIS ACQUIT. Fr. Formerly acquitted.
In criminal law. The name of a plea in bar to a
criminal action, stating that the defendant has
been once already indicted and tried for the same
alleged offense and has been acquitted. Simco v.
State, 9 Tex.App. 348; State v. Bilton, 156 S.C. 324,
153 S.E. 269, 272.
Etymologically, the term might include any self-propelled vehicle, as an electric street car, or a motor boat,
but in popular and legal usage it is confined to a vehicle
for the transportation of persons or property on terrestrial
highways, carrying its own motive power and not operated
upon fixed tracks. Bethlehem Motors Corporation v. Flynt,
178 N.C. 399, 100 S.E. 693, 694. Synonymous with "motor
vehicle." State v. Ferry Line Auto Bus Co., 99 Wash. 64,
168 P. 893, 894. "Car" as substitute or synonym. Monroe's Adm'r v. Federal Union Life Ins. Co., 251 Ky. 570, 65
S.W.2d 680, 681.
Taxicabs included. Navy Gas & Supply Co. v. Schoech,
105 Colo. 374, 98 P.2d 860, 864, 126 A.L.R. 1225. Trolley
vehicles or trolley busses excluded. City of Dayton v. Lie
Brosse, 62 Ohio St. 232, 23 N.E.2d 647, 650.
AUTOMOBILE GUEST. A person who is received
and entertained in the automobile of another.
Chanson v. Morgan's Louisiana & T. R. & S. S.
Co., 18 La.App. 602, 136 So. 647, 649. Linn v.
Nored, Tex.Civ.App., 133 S.W.2d 234, 237.
AUTONOMY. The political independence of a nation; the right (and condition) of power of selfgovernment; the negation of a state of political
influence from without or from foreign powers.
Lieber, Civ.Lib.; Green v. Obergfell, 121 F.2d 46,
57, 73 App.D.C. 298.
AUTOPSY. The dissection of a dead body for the
purpose of inquiring into the cause of death. Pub.
St.Mass.1882, p. 1288. Sudduth v. Insurance Co.,
C.C.Ky., 106 F. 823. A post mortem examination
to determine the cause, seat, or nature of a disease. E. 0. Painter Fertilizer Co. v. Boyd, 93 Fla.
354, 114 So. 444, 445.
AUTOPTIC PROFERENCE. Proffering or presenting in open court of articles for observation
or inspection of the tribunal. Kabase v. State, 31
Ala.App. 77, 12 So.2d 758, 764.
AUTRE. Fr. Another.
AUTRE ACTION PENDANT. In pleading. Another action pending. A species of plea in abatement. 1 Chit.Pl. 454.
AUTRE DROIT. In right of another, e. g., a trustee holds trust property in right of his cestui que
trust. A prochein amy sues in right of an infant.
2 Bl.Comm. 176.
AUTREFOIS ATTAINT. In criminal law. Formerly attainted. A plea that the defendant has
already been attainted for one felony, and therefore cannot be criminally prosecuted for another.
4 Bl.Comm. 336; 12 Mod. 109; R. & R. 268. This
is not a good plea in bar in the United States, nor
in England in modern law. 1 Bish.Cr.L. § 692;
Singleton v. State, 71 Miss. 782, 16 So. 295, 42 Am.
St.Rep. 488.
AUTREFOIS CONVICT. Fr. Formerly convicted. In criminal law. A plea by a criminal in bar
to an indictment that he has been formerly convicted of the same crime. 4 Bl.Comm. 336; 4
Steph.Comm. 404.
AUXILIARY. Aiding; attendant on; ancillary
(q. v.) ; as, an auxiliary bill in equity, an auxiliary
receiver. Buckley v. Harrison, 31 N.Y.S. 1001, '10
Misc. 683; Bowman v. Stark, Tex.Civ.App., 185
S.W. 921, 924. Synonymous with "subsidiary."
Baker v. Fenley, 128 S.W.2d 295, 298, 233 Mo.App.
998.
AUXILIATOR. Lat. Helper or assistant; the
word is closely related to the English word auxiliary. Esta Co. v. Burke, D.C.Pa., 257 F. 743, 746.
AUXILIUM. In feudal and old English law.
Aid; compulsory aid, hence a tax or tribute; a
kind of tribute paid by the vassal to his lord, being one of the incidents of the tenure by knight's
service. Spelman; Fitzh.Nat.Brev. 62.
AUXILIUM AD FILIUM MILITEM FACIENDUM
ET FILIAM MARITANDAM. An ancient writ
which was addressed to the sheriff to levy compulsorily an aid towards the knighting of a son
and the marrying of a daughter of the tenants in
capite of the crown.
AUXILIUM CURVE. In old English law. A precept or order of court citing and convening a
party, at the suit and request of another, to warrant something. Kenn.Par.Ant. 477.
AUXILIUM REGIS. In English law. The king's
aid or money levied for the royal use and the public service, as taxes granted by parliament. A
subsidy paid to the king. Spelman.
AUXILIUM VICE COMITI. An ancient duty paid
to sheriffs. Cowell.
170
AVERAGE
AVAIL OF MARRIAGE. In feudal law. The
right of marriage, which the lord or guardian in
chivalry had of disposing of his infant ward in
matrimony. A guardian in socage had also the
same right, but not attended with the same advantage. 2 Bl.Comm. 88.
In Scotch law. A certain sum due by the heir
of a deceased ward vassal, when the heir became
of marriageable age. Ersk.Inst. 2, 5, 18.
AVAILABILITY FOR WORK. Within Unemployment Compensation Law requires no more than
availability for suitable work which claimant has
no good cause for refusing. Hagadone v. Kirkpatrick, 66 Idaho 55, 154 P.2d 181, 182.
AVAILABLE. Suitable; usable. Lively v. American Zinc Co. of Tennessee, 137 Tenn. 261, 191 S.
W. 975, 979; Having sufficient force or efficacy;
effectual. Pittsburgh, C., C. & St. L. Ry. Co. v.
Broderick, 56 Ind.App. 58, 102 N.E. 887, 891.
AVAILABLE MEANS. This phrase, among mercantile men, is a term well understood to be anything which can readily be converted into money;
but it is not necessarily or primarily money itself.
McFadden v. Leeka, 48 Ohio St. 513, 28 N.E. 874;
Benedict v. Huntington, 32 N.Y. 224; Brigham v.
Tillinghast, 13 N.Y. 218.
AVAILS. Profits, proceeds, or use. In re Coughlin's Estate, 53 N.D. 188, 205 N.W. 14, 16; Cordes
v. Harding, 27 Cal.App. 474, 150 P. 650, 651. With
reference to wills, it means the corpus or proceeds of the estate after the payment of the debts.
1 Amer. & Eng.Enc.Law, 1039. See Allen v. De
Witt, 3 N.Y. 279; McNaughton v. McNaughton, 34
N.Y. 201.
AVAL. In French law. The guaranty of a bill
of exchange; so called because usually placed at
the foot or bottom (awl) of the bill. Story, Bills,
§§ 394, 454. 11 Harv.L.Rev. 55.
In Canadian law. The act of subscribing one's
signature at the bottom of a promissory note or
of a bill of exchange; properly an act of suretyship, by the party signing, in favor of the party
to whom the note or bill is given. 1 Low.Can.
221; 9 Low.Can. 360.
AVANTURE. L. Fr. Chance; hazard; mischance.
AVARIA, AVARIE. Average; the loss and damage suffered in the course of a navigation. Poth.
Mar.Louage, 105.
AVENAGE. A certain quantity of oats paid by a
tenant to his landlord as rent, or in lieu of some
other duties. Jacob, L.Dict.
"street" but not with "boulevard." City of St.
Louis v. Breuer, Mo.Sup., 223 S.W. 108, 110.
"Street," "avenue," "road," "public road," "county
road," and "public highway" are used indiscriminately in
legislation and judicial decisions. "Street" or "avenue"
commonly applies to a public highway in a village, town,
or city and "road" to a suburban highway, but there may
be "roads" in a city or town and "streets" and "avenues"
in the country. City of Spokane v. Spokane County, 179
Wash. 130, 36 P.2d 311, 313.
AVER. L. Fr. To have.
Aver et tener. In old conveyancing. To have
and to hold.
AVER, v. In pleading. To declare or assert; to
set out distinctly and formally; to allege.
In old pleacl:ng. To avouch or verify. Litt. §
691; Co.Litt. 362b. To make or prove true; to
make good or justify a plea.
AVER, n. In old English and French. Property;
substance, estate and particularly live stock or
cattle; hence a working beast; a horse or bullock. Cowell; Kelham.
Aver corn. A rent reserved to religious houses,
to be paid in corn. Corn drawn by the tenant's
cattle. Cowell.
Aver land. In feudal law. Land plowed by the
tenant for the proper use of the lord of the soil.
Blount.
Aver penny. Money paid towards the king's
averages or carriages, and so to be freed thereof.
Termes de la Ley.
Aver silver. A custom or rent formerly so
called. Cowell.
AVERA. A day's work of a ploughman, formerly
valued at eight pence. Jacob, L.Dict.
AVERAGE. A mean proportion, medial sum or
quantity, made out of unequal sums or quantities.
Brisendine v. Skousen Bros., 48 Ariz. 416, 62 P.2d
326, 329, 112 A.L.R. 1089; Long v. Ottumwa Ry.
& Light Co., 162 Iowa, 11, 142 N.W. 1008, 1015.
In ordinary usage the term signifies the mean between
two or more quantities, measures, or numbers. If applied
to something which is incapable of expression in terms of
measure or amount, it signifies that the thing or person
referred to is of the ordinary or usual type.
Average charges. "Average charges for toll
and transportation" are understood to mean, and
do mean, charges made at a mean rate, obtained
by dividing the entire receipts for toll and trans.
portation by the whole quantity of tonnage carried, reduced to a common standard of tons moved
one mile. Hersh v. Railway Co., 74 Pa. 190.
Average prices. Such as are computed on all
the prices of any articles sold within a certain pea
riod or district.
General average (also called "gross") consists
of expense purposely incurred, sacrifice made, or
damage sustained for the common safety of the
AVENUE. Any broad passageway, bordered on
vessel, freight, and cargo, or the two of them, at
each side by trees. Greene v. Helme, 94 Vt. 392,
risk, and is to be contributed for by the several
111 A. 557, 559. It may be synonymous with
171
AVENTURE, or ADVENTURE. A mischance
causing the death of a man, as where a person
is suddenly drowned or killed by any accident,
without felony. Co.Litt. 391; Whishaw.
AVERAGE
interests in the proportion of their respective values exposed to the common danger, and ultimately
surviving, including the amount of expense, sacrifice, or damage so incurred in the contributory
value. Star of Hope v. Annan, 9 Wall. 203, 19 L.
Ed. 638; Lex Rhodia, Dig. 14, 2, 1.
"General average" is a contribution by the several interests engaged in a maritime venture to make good the loss
of one of them for the voluntary sacrifice of a part of the
ship or cargo to save the residue of the property and the
lives of those on board, or for extraordinary expenses nec
essarily incurred for the common benefit and safety of all.
California Canneries Co. v. Canton Ins. Office, 25 Cal.App.
303, 143 P. 549, 553. The law of general average is part of
the maritime law, and not of the municipal law, and
applies to maritime adventures only. Ralli v. Troop, 157
U.S. 386, 15 S.Ct. 657, 39 L.Ed. 742.
Gross average. More commonly called "general
average" ( q. v.). Where loss or damage occurs
to a vessel or its cargo at sea, average is the adjustment and apportionment of such loss between
the owner, the freight, and the cargo, in proportion to their respective interests and losses, in order that one may not suffer the whole loss, but
each contribute ratably. Coster v. Insurance Co.,
2 Wash.C.C. 51, 6 Fed.Cas. 611.
Particular average is a loss happening to the
ship, freight, or cargo which is not to be shared
by contribution among all those interested, but
must be borne by the owner of the subject to
which it occurs. It is thus called in contradistinction to general average. Bargett v. Insurance Co.,
3 Bosw. (N.Y.) 395.
Petty average denotes such charges and disbursements as, according to occurrences and the
custom of every place, the master necessarily furnishes for the benefit of the ship and cargo, either at the place of loading or unloading, or on
the voyage; such as the hire of a pilot for conducting a vessel from one place to another, towage, light money, beaconage, anchorage, bridge
toll, quarantine and such like. Park, Ins. 100;
Le Guidon, c. 5, a. 13; Weyt, de A. 3, 4; Weskett,
art. Petty Av.; 2 Phill.Ins. § 1269, n. 1; 2 Arnould,
Mar.Ins. 927.
Simple average is the same as "particular average" (q. v.).
In maritime law. Loss or damage accidentally
happening to a vessel or to its cargo during a
voyage. Also a small duty paid to masters of
ships, when goods are sent in another man's ship,
for their care of the goods, over and above the
freight.
In old English law. A service by horse or
carriage, anciently due by a tenant to his lord.
Cowell. A labor or service performed with working cattle, horses, or oxen, or with wagons and
carriages. Spelman.
Stubble, or remainder of straw and grass left
in corn-fields after harvest. In Kent it is called
"gratten," and in other parts "roughings."
AVERIA CARRUCAE. Beasts of the plow. 3 Bla.
Comm. 9; 4 Term, 566.
AVERIIS CAPTIS IN WITHERNAM. A writ
granted to one whose cattle were unlawfully distrained by another and driven out of the county
in which they were taken, so that they could not
be replevied by the sheriff. Reg.Orig. 82.
AVERIUM. Lat. Goods; property. A beast of
burden. Spelman, Gloss.
AVERMENT. In pleading. A positive statement
of facts, in opposition to argument or inference. 1
Chit.P1. 320; Bacon, Abr. Pleas, B.
Averments were formerly said to be general and particular; but only particular averments are found in modern pleading. 1 Chit.P1. 277.
Immaterial and impertinent averments (which
are synonymous, 5 D. & R. 209) are those which
need not be made, and, if made, need not be
proved. Williamson v. Allison, 2 East, 446; Panton v. Holland, 17 Johns. (N.Y.) 92, 8 Am.Dec.
369.
Negative averments are those in which a negative is used.
Particular averments are the assertions of particular facts.
Unnecessary averments are statements of matters which need not be alleged, but which, if al.
leged, must be proved. Carth. 200.
In old pleading. An offer to prove a plea, or
pleading. The concluding part of a plea, replication, or other pleading, containing new affirmative matter, by which the party offers or declares
himself "ready to verify."
AVERRARE. In feudal law. A duty required
from some customary tenants, to carry goods in
a wagon or upon loaded horses. Jacob, L.Dict.
AVERSIO. In the civil law. An averting or turning away. A term applied to a species of sale in
gross or bulk.
Letting a house altogether, instead of in chain
bers. 4 Kent, Comm. 517.
AVERSIO PERICULI. A turning away of peril.
Used of a contract of insurance. 3 Kent, Comm.
263.
AVERUM. Goods, property, substance; a beast
of burden. Spelman.
AVET. A term used in the Scotch law, signifying
to abet or assist. Tomlin, Diet.
AVIA. In the civil law. A grandmother. Inst.
3, 6, 3.
AVIATICUS. In the civil law. A grandson.
AVIATION. The art of flying, especially the
management of airplanes; the act, art or science
of flying by mechanical means, especially with
machines heavier than air. Massachusetts Protective Ass'n v. Bayersdorfer, C.C.A.Ohio, 105 F.
2d 595, 597; Spychala v. Metropolitan Life Ins.
AVERIA. In old English law. A term applied
Co., 339 Pa. 237, 13 A.2d 32, 33.
to working cattle, such as horses, oxen, etc.
172
AVULSION
AVOW. In pleading. To acknowledge and justify
an act done. 3 Bla.Comm. 150. To make an avowry. Tleeta, 1.1, c. 4, Cunningham, Dict. See
Avowry; Justification.
AVIATION, ENGAGED EN. The phrase "engaged
in aviation" within the meaning of an insurance
policy denotes the act of flying in the air in a
machine heavier than air, whether piloting or
riding as a passenger. Masonic Acc. Ins. Co. v.
Jackson, Ind.App., 147 N.E. 156. See Aeronautics.
For example, when replevin is brought for a thing distrained, and the party taking claims that he had a right
to make the distress, he is said to avow. Newell Mill Co.
v. Muxlow, 115 N.Y. 170, 21 N.E. 1048.
AVIZANDUM. In Scotch law. To make avizandum with a process is to take it from the public
court to the private consideration of the judge.
Bell.
AVOWAL. An open declaration. Purpose is to
enable the court to know what the witness would
have stated in answer to the question propounded,
and to inform the court what the interrogator
would prove contrary to the testimony given at
the trial. Fennell v. Frisch's Adm'r., 192 Ky. 535,
234 S.W. 198 (1921) ; Robertson v. Commonwealth,
269 Ky. 317, 107 S.W.2d 292 ,(1937). See Clay,
Kentucky Practice, Rule 43.10. Fed.R.Civ.P. 43 (c).
AVOWANT. One who makes an avowry.
AVOWEE. In ecclesiastical law. An advocate of
a church benefice.
AVOCAT. Fr. An advocate; a barrister.
AVOCATION. A calling away, a diversion, suggesting idea of smaller affairs of life, or occasional employments as distinguished from one's ordinary or principal occupation. Bullitt v. Delaware Bus Co., Del., 180 A. 519, 522, 7 W.W.Harr.
62; a subordinate or occasional occupation. Mutual Life Ins. Co. of New York v. Enecks, 41 Ga.
App. 644, 154 S.E. 198, 199.
AVOWRY. A pleading in the action of replevin,
by which the defendant avows, that is, acknowledges, the taking of the distress or property
complained of, where he took it in his own right,
and sets forth the reason of it; as for rent in arrear, damage done, etc. 3 Bl.Comm. 149; 1 Tidd
Pr. 645. L. A. W. Acceptance Corporation v. Chernick, 143 A. 783, 784, 49 R.I. 434.
AVOID. To annul; cancel; make void; to destroy the efficacy of anything. To evade; escape.
Graves v. Apt, 233 Mass. 587, 124 N.E. 432, 433.
But it has no sinister meaning, and does not imply
subterfuge or artifice in escape. Booth v. Scott,
276 Mo. 1, 205 S.W. 633, 639.
AVOIDABLE CONSEQUENCES, DOCTRINE OF.
Doctrine imposes duty on person injured to minimize damages. Reavis v. Raylor, Tex.Civ.App.,
162 S.W.2d 1030, 1037; Lips v. Opp, 96 P.2d 865,
867, 150 Kan. 745.
AVOIDANCE. A making void, useless, empty, or
of no effect; annulling, cancelling; escaping or
evading.
English Ecclesiastical Law
The term describes the condition of a benefice
when it has no incumbent.
Parliamentary Language
Avoidance of a decision signifies evading or
superseding a question, or escaping the coming
to a decision upon a pending question. Holthouse.
Pleading
The allegation or statement of new matter, in
opposition to a former pleading, which, admitting
the facts alleged in .such former pleading, shows
cause why they should not have their ordinary
legal effect. Mahaiwe Bank v. Douglass, 31 Conn.
175. See Confession and Avoidance.
AVOIRDUPOIS. The name of a system of
weights (sixteen ounces to the pound) used in
weighing articles other than medicines, metals,
and precious stones; so named in distinction from
the Troy weight.
AVOUCELER. The calling upon a warrantor of
lands to fulfill his undertaking. See Voucher.
AVOUE. In French and Canadian law. A barrister, advocate, solicitor, or attorney. An officer
charged with representing and defending parties
before the tribunal to which he is attached. Duverger.
Avowry is the setting forth, as in a declaration, the
nature and merits of the defendant's case, showing that
the distress taken by him was lawful, which must be done
with such sufficient authority as will entitle him to a
retorno habendo. Wilhem v. Boyd, 172 Md. 79, 190 A. 823,
826.
An avowry must be distinguished from a justification.
The former species of plea admits the plaintiff's ownership of the property, but alleges a right in the defendant
sufficient to warrant him in taking the property and which
still subsists. A justification, on the other hand, denies
that the plaintiff had the right of property or possession in
the subject-matter, alleging it to have been in the defendant or a third person, or avers a right sufficient to warrant
the defendant in taking it, although such right has not
continued in force to the time of making answer. See 2
W.Jones, 25.
AVOWTERER. In English law. An adulterer
with whom a married woman continues in adultery. Termes de la Ley.
AVOWTRY. In old English law. Adultery.
Termes de la Ley.
AVULSION. The removal of a considerable quantity of soil from the land of one man, and its deposit upon or annexation to the land of another,
suddenly and by the perceptible action of water.
2 Washb.Real Prop. 452; Wharton. Rees v. McDaniel, 115 Mo. 145, 21 S.W. 913; Schwartzstein
v. B. B. Bathing Park, 197 N.Y.S. 490, 492, 203 App.
Div. 700; Conkey v. Knudsen, 143 Neb. 5, 8 N.W.
2d 538, 542.
A sudden abandonment of an old channel and the crea,
tion of a new one. Harper v. Holston, 119 Wash. 436, 205
P. 1062, 1064.
Where running streams are the boundaries between
states, the same rule applies as between private proprietors, and, if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one by
the process known as "avulsion," the resulting change of
channel works no change of boundary, which remains in
the middle of the old channel though no water may be
173
AVULSION
flowing in it and irrespective of subsequent changes in the
new channel. State of Arkansas v. State of Tennessee, 246
U.S. 158, 38 S.Ct. 301, 304, 62 L.Ed. 638, L.R.A.1918D, 258;
Stull v. U. S., C.C.A.Neb., 61 F.2d 826, 830.
To constitute "avulsion," rather than "accretion," so as
to preclude change in boundary between riparian owners,
it is not necessary that soil washed away be identifiable;
it being sufficient that change is so sudden that owner of
land washed away is able to point out approximately as
much land added to opposite bank as he had washed away.
60 Okl.St.Ann. §§ 335, 336. Goins v. Merryman, 183 Old.
155, 80 P.2d 268.
See Accretion; Alluvion; Reliction.
AVUNCULUS. In the civil law. A mother's
brother. 2 Bl.Comm. 230. Avunculus magnus, a
great-uncle. Avunculus major, a great-grandmother's brother. Avunculus maximus, a greatgreat-grandmother's brother. See Dig. 38, 10,
10; Inst. 3, 6, 2.
AVUS. In the civil law. A grandfather. Inst.
3, 6, 1.
AWAIT. Used in old statutes to signify a lying
in wait, or waylaying.
AWARD, v. To grant, concede, or adjudge to.
To give or assign by sentence or judicial determination. Hobson v. Superior Court of Tulare County, 69 Cal.App. 60, 230 P. 456, 457. Thus, a jury
awards damages; the court awards an injunction.
Starkey v. Minneapolis, 19 Minn. 206 (Gil. 166).
One awards a contract to a bidder. Jackson v.
State, 194 Ind. 130, 142 N.E. 1, 2, (holding that a
finding that a contract was "awarded to" a bidder
meant it was entered into with all required legal
formalities).
AWARD, n. The decision or determination rendered by arbitrators or commissioners, or other
private or extrajudicial deciders, upon a controversy submitted to them; also the writing or document embodying such decision. Keiser v. Berks
County, 253 Pa. 167, 97 A. 1067, 1068.
Under Workmen's Compensation Acts, the term may be
used in the above sense, as signifying a decision or determination of the Industrial Board, or some equivalent body.
Frankfort General Ins. Co. v. Conduitt, 74 Ind.App. 584, 127
N.E. 212, 215. It may also be used to refer to the amount
of compensation fixed by the board, an "award" being an
amount fixed by arbitration. Odrowski v. Swift & Co., 99
Kan. 163, 162 P. 268, 269. Hence, a compensation agreement, which is not approved by the Industrial Board, is
not an award. Bruce v. Stutz Motor Car Co. of America,
83 Ind.App. 257, 148 N.E. 161, 162.
A judgment, sentence, or final decision. Higginbotham
v. State, 20 Ala.App. 159, 101 So. 166. A finding or judgment based upon an appraisement. Riddell v. Rochester
German Ins. Co. of New York, 36 R.I. 240, 89 A. 833, 835.
See Arbitration.
AWAY-GOING CROP. A crop sown before the
expiration of a tenancy, which cannot ripen until
after its expiration to which, however, the tenant
is entitled. Broom, Max. 412; Miller v. Gray, Tex.
Civ.App., 108 S.W.2d 265, 267, 268.
AWM. Also aum or awme. In old English statutes. A measure of wine, or vessel containing
forty gallons.
AWN-HINDE. See Third-Night-Awn-Hinde.
AXIOM. In logic. A self-evident truth; an indisputable truth.
AXMINSTER. The trade-name of a certain kind
of rug. The term now generally includes the machine-made product as well as the handmade.
Beuttell & Sons v. U. S., 8 Ct.Cust.App. 409, 412.
AYANT CAUSE. In French law, and also in
Louisiana, this term signifies one to whom a right
has been assigned, either by will, gift, sale, exchange, or the like; an assignee. An avant
cause differs from an heir who acquires the right
by inheritance. 8 Toullier, n. 245.
AYLE. See Aiel.
AYRE. In old Scotch law. Eyre; a circuit or
iter.
AYUNTAMIENTO. In Spanish law. A congress
of persons; the municipal council of a city or
town. 1 White, Coll. 416; Friedman v. Goodwin,
9 Fed.Cas. 818; Strother v. Lucas, 12 Pet. 442, 9
L.Ed. 1137, notes.
AZURE. A term used in heraldry, signifying
blue.
174
BACKSIDE
B. The second letter of the English alphabet; is
used to denote the second of a series of pages,
notes, etc.; the subsequent letters, the third and
following numbers.
B. C. An abbreviation for "before Christ," "bail.
court," "bankruptcy cases," and "British Columbia."
B. D. S. A. Business and Defense Services Administration.
B. E. An abbreviation for "Baron of the Court of
Exchequer."
B. F. An abbreviation for bonum factum, a good
or proper act, deed, or decree; signifies "approved."
B. L. S. Bureau of Labor Statistics.
B. R. An abbreviation for Bancus Regis, ( King's
Bench,) or Bancus Regina ( Queen's Bench.) It
is frequently found in the old books as a designation of that court. In more recent usage, the initial letters of the English names are ordinarily
employed, i. e., K. B. or Q. B.
B. S. Bancus Superior, that is, upper bench.
B— S—. Designation of statements of another as
b— s— carried the implications that they were
absurd and fanciful. People v. Nitti, 312 Ill. 73,
143 N.E. 448, 456.
BABBITT. To line or furnish with "babbitt metal," which is a soft white anti-friction metal, of
varying compositions, or any of several alloys similarly used. Ingersol v. National Sash & Door
Factory, 134 La. 19, 63 So. 609, 610.
"BABY ACT." A plea of infancy, interposed for
the purpose of defeating an action upon a contract made while the person was a minor, is vulgarly called "pleading the baby act.- By extension, the term is applied to a plea of the statute
of limitations.
BACHELERIA. In old records. Commonalty or
yeomanry, in contradistinction to baronage.
BACHELOR. One who has taken the first degree
(baccalaureate) in the liberal arts and sciences,
or in law, medicine, or divinity, in a college or university.
A man who has never been married.
A kind of inferior knight; an esquire.
BACK, v. To indorse; to sign on the back; to
sign generally by way of acceptance or approval.
Where a warrant issued in one county is presented to a magistrate of another county and he signs
it for the purpose of making it executory in his
county, he is said to "back" it. 4 Bl.Comm. 291.
175
This custom prevails in England, Scotland, and
some of the United States. So an indorser of a
note or bill is colloquially said to "back" it. Seabury v. Hungerford, 2 Hill (N.Y.) 80.
BACK, adv. To the rear; backward; in a reverse direction. Also, in arrear.
BACK CARRY. In forest law, the crime of having, on the back, game unlawfully killed. See
Backbear.
BACK LANDS. A term of no very definite import, but generally signifying lands lying back
from (not contiguous to) a highway or a water
course. See Ryerss v. Wheeler, 22 Wend. (N.Y.)
150.
BACK TAXES. Those assessed for a previous
year or years and remaining due and unpaid from
the original tax debtor. M. E. Church v. New
Orleans, 107 La. 611, 32 So. 101.
BACKADATION. See Backwardation.
BACKBEAR. In forest law. Carrying on the
back. One of the cases in which an offender
against vert and venison might be arrested, as
being taken with the mainour, or manner, or
found carrying a deer off on his back. Manwood;
Cowell.
BACKBEREND (also Backberende). Sax. Bearing upon the back or about the person. Applied
to a thief taken with the stolen property in his
immediate possession. Bract. 1, 3, tr. 2, c. 32.
Used with handhabend, having in the hand.
BACKBOND. A bond of indemnification given to
a surety.
In Scotch law. A deed attaching a qualification
or condition to the terms of a conveyance or other
instrument. This deed is used when particular
circumstances render it necessary to express in
a separate form the limitations or qualifications
of a right. Bell. The instrument is equivalent to
a declaration of trust in English conveyancing.
BACKING. Indorsement; indorsement by a magistrate. Gondas v. Gondas, 99 N.J.Eq. 473, 134 A.
615, 617.
BACKING A WARRANT. See Back.
BACK-SEAT DRIVER. A highly nervous passenger whether sitting in rear or by driver, who
by unwarranted advice and warnings interferes
in careful operation of automobile. Winters v.
York Motor Express Co., 116 Pa.Super. 421, 176
A. 812, 815.
BACKSIDE. In English law. A term formerly
used in conveyances and also in pleading; it imports a yard at the back part of or behind a house,
and belonging thereto.
BACKWARDATION
BACKWARDATION (also called Backadation).
In the language of the stock exchange, this term
signifies a consideration paid for delay in the delivery of stock contracted for, when the price is
lower for time than for cash. Dos Passos, StockBrok. 270.
done by the miner himself. W. G. Duncan Coal
Co. v. Thompson's Adm'r, 157 Ky. 304, 162 S.W.
1139, 1140.
BAD TITLE. One which conveys no property to
the purchaser of the estate; one which is so radically defective that it is not marketable, and
hence such that a purchaser cannot be legally
compelled to accept it. Heller v. Cohen, 15 Misc.
378, 36 N.Y.S. 668.
BACKWARDS. In a policy of marine insurance,
the phrase "forwards and backwards at sea"
means from port to port in the course of the
voyage, and not merely from one terminus to the
other and back. 1 Taunt. 475.
BACKWATER. Water in a stream which, In
consequence of some dam or obstruction below, is
detained or checked in its course, or flows back.
Webster v. North Poudre Irr. Co., 74 Colo. 565, 223
P. 36. Water caused to flow backward from a
steam-vessel by reason of the action of its wheels
or screw.
BACULUS. A rod, staff, or wand, used in old
English practice in making livery, of seisin where
no building stood on the land, (Bract. 40;) a stick
or wand, by the erection of which on the land involved in a real action the defendant was summoned to put in his appearance; this was called
"baculus nuntiatorius." 3 B1.Comm. 279.
BAD. Vicious, evil, wanting in good qualities;
the reverse of good. Davis v. Pennsylvania Co.
for Insurances on Lives and Granting Annuities,
337 Pa. 456, 12 A.2d 66, 68. Defective, faulty,
inferior, or imperfect. Kniffley v. Reid, 152 S.W.
2d 615, 616, 287 Ky. 212. The technical word for
unsoundness in pleading.
BAD BEHAVIOR. Where a judgment in a cram.
inal case has been suspended on condition of good
behavior, the term "good behavior" means conduct that is authorized by law, and "bad behavior"
means conduct such as the law will punish. State
v. Hardin, 183 N.C. 815, 112 S.E. 593, 594.
BAD DEBT. Generally speaking, one which is uncollectible.
BAD FAITH. The opposite of "good faith," generally implying or involving actual or constructive
fraud, or a design to mislead or deceive another,
or a neglect or refusal to fulfill some duty or
some contractual obligation, not prompted by an
honest mistake as to one's rights or duties, but by
some interested or sinister motive. State v. Griffin, 100 S.C. 331, 84 S.E. 876, 877; Penn Mut. L.
Ins. Co. v. Mechanics' Savings Bank & Trust Co.,
C.C.A.Tenn., 73 F. 653, 19 C.C.A. 316, 38 L.R.A. 33,
70; Spiegel v. Beacon Participations, 297 Mass.
398, 8 N.E.2d 895, 907.
BAD MOTIVE. Intentionally doing a wrongful
act knowing at the time that it is wrongful. Luhmann v. Schaefer, Mo.App., 142 S.W.2d 1088, 1090;
Davis v. Nash Central Motors, Mo.App., 332 S.W.
2d 475, 480.
BAD PLACE. Under a contract requiring the employer to timber all bad places in the mine unless
caused by the miner's negligence, a "bad place"
was a place in the roof which could not be made
reasonably safe by the ordinary propping usually
BADGE. A mark or cognizance worn to show the
relation of the wearer to any person or thing; the
token of anything; a distinctive mark of office or
service.
BADGE OF FRAUD. A term used relatively to
the law of fraudulent conveyances made to hinder
and defraud creditors. It is defined as a fact tending to throw suspicion upon a transaction, and
calling for an explanation. Bump, Fraud.Conv.
31; Phelps v. Samson, 113 Iowa, 145, 84 N.W. 1051.
It is a suspicious circumstance that overhangs a
transaction, or appears on the face of the papers,
Toone v. Walker, 115 Okl. 289, 243 Pa. 147, 148.
A circumstance which does not alone prove fraud,
but which warrants inference of fraud, especially
where there is a concurrence of many such
badges. Brennecke v. Riemann, Mo., 102 S.W.2d
874, 877, 109 A.L.R. 1214.
Recognized "badges of fraud" include fictitious consideration, false statements as to consideration, transactions
different from usual course of doing business, transfer of all of a debtor's property, insolvency, confidential relationship of parties, and transfers in anticipation of suit or
execution. Hendrix v. Goldman, Mo., 92 S.W.2d 733, 736.
BADGER. In old English law. One who made
a practice of buying corn or victuals in one place,
and carrying them to another to sell and make
profit by them.
BAG. A sack or satchel. A certain and customary quantity of goods and merchandise in a
sack. Wharton. An uncertain quantity of goods
and merchandise, from three to four hundred.
Jacob.
BAGA. In English law. A bag or purse. Thus-
there is the petty-bag-office in the common-law jurisdiction of the court of chancery, because all
original writs relating to the business of the
crown were formerly kept in a little sack or bag,
in parva bagel. 1 Madd.Ch. 4.
BAGAVEL. The citizens of Exeter had granted
to them by charter from Edward I. the collection
of a certain tribute or toll upon all manner of
wares brought to that city to be sold, toward the
paving of the streets, repairing of the walls, and
maintenance of the city, which was commonly
called bagavel, bethugavel and chippinggavel.
Antiq. of Exeter.
BAGGAGE. In the law of carriers, this term,
comprises such articles of personal convenience or
necessity as are usually carried by passengers for
their personal use. It includes whatever the passenger takes with him for his personal use or convenience according to the habits or wants of the
particular class to which he belongs, either with
176
BAIL
reference to the immediate necessities or ultimate
purpose of the journey. Texas & P. Ry. Co. v..
Bryant, Tex.Civ.App., 11 S.W.2d 659, 660
Thus, jewelry suitable to the condition in life of the passenger and intended for personal use on the journey is
"baggage." Missouri Pac. R. Co. v. Pugh, 157 Ark. 383,
248 S.W. 897. But it is not baggage where carried by a
traveler for the use of another or for the purpose of business or sale. Illinois Cent. R. Co. v. Fontaine, 217 Ky.
211, 289 S.W. 263, 266, 52 A.L.R. 1064.
A multitude of objects have been held to be baggage;
e. g., razors in a trunk checked by a male passenger, San
Antonio & A. P. Ry. Co. v. Green, Tex.Civ.App., 170 S.W.
110, 111, and a thimble carried in her trunk by the mother
of two small children, Louisville & N. R. Co. v. Hestle, 200
Ala. 137, 75 So. 885, 887. Other articles have been held not
to be baggage, such as stocks and bonds, Jandorf v. Pullman Co., 171 N.Y.S. 321, 322, 104 Misc. 79; a gun and gun
case, not connected with the purpose of the trip, House v.
Chicago & N. W. Ry. Co., 32 S.D. 209, 142 N.W. 736, 738;
and an article for use in housekeeping after the end of a
passenger's journey, Louisville & N. R. Co. v. Fletcher, 194
Ala. 257, 69 So. 634, 635.
BAGGAGE CAR. A closed car in a passenger
train used to transport the property of the passengers. Ward v. Gulf, M. & N. R. Co., 23 Tenn.App.
533, 134 S.W.2d 917.
—Bail absolute. Sureties whose liability is condiditioned upon the failure of the principal to duly
account for money coming to his hands as administrator, guardian, etc.
—Bail below, or bail to the sheriff. See Bail to the
sheriff or bail below, infra.
—Bail bond. A bond executed by a defendant who
has been arrested, together with other persons as
sureties, naming the sheriff, constable, or marshal
as obligee, in a penal sum proportioned to the
damages claimed or penalty denounced, conditioned that the defendant shall duly appear to
answer to the legal process in the officer's hands,
or shall cause special bail to be put in, as the case
may be.
An obligation signed by the accused with sureties, conditioned that the same shall be void on the
performance by the accused of such acts as he is
required to perform. State v. Wilson, 265 Mo. 1,
175 S.W. 603, 605.
BAGGAGE CAR SERVICE. A service rendered
in such car in connection with the transportation
of passengers by a passenger train movement or
its equivalent. Ward v. Gulf, M. & N. R. Co., 23
Tenn.App. 533, 134 S.W.2d 917, 923.
BAHADUM. A chest or coffer. Fleta.
BAIL, v. To procure the release of a person from
legal custody, by undertaking that he shall appear
at the time and place designated and submit himself to the jurisdiction and judgment of the court.
To deliver the defendant to persons who, in the
manner prescribed by law, become security for
his appearance in court. To set at liberty a person arrested or imprisoned, on security being taken
for his appearance on a day and a place certain,
which security is called "bail," because the party
arrested or imprisoned is delivered into the hands
of those who bind themselves for his forthcoming,
(that is, become bail for his due appearance when
required,) in order that he may be safely protected from prison. Wharton. Stafford v. State,
10 Tex.App. 49.
To procure release of one charged with an offense by
insuring his future attendance in court and compelling
him to remain within jurisdiction of court. Manning v.
State ex rel. Williams, 190 Okl. 65, 120 P.2d 980, 981.
The object of "bail" in civil cases is either directly or
indirectly to secure payment of a debt or performance of
other civil duties, while in criminal cases object is to
secure appearance of principal before the court when his
presence is needed. Johnson v. Shaffer, 64 Ohio App. 236,
28 N.E.2d 765, 767. In its more ancient signification, the
word includes the delivery of property, real or personal, by
one person to another.
Its purpose is to secure the presence of the one charged
in court when his presence is required in order to answer
to the charge. State v. Clark, 234 Iowa 338, 11 N.W.2d 722.
In criminal cases, a bail bond is a contract under seal,
which, from its nature, requires sureties or bail, and therefore differs from a "recognizance," which is a debt or obligation of record, acknowledged before some court or magistrate authorized to take it, with condition to do some
particular act, and which need not be executed by the parties. State v. Bradsher, 189 N.C. 401, 127 S.E. 349, 351, 38
A.L.R. 1102. But under the law of Connecticut, "recognizance" and "bail" are interchangeable. National Surety
Co. v. Nazzaro, 239 Mass. 341, 132 N.E. 49, 50.
—Bail common. A fictitious proceeding, intended
only to express the appearance of a defendant, in
cases where special bail is not required. It is put
in in the same form as special bail, but the sureties are merely nominal or imaginary persons, as
John Doe and Richard Roe. 3 Bl.Comm. 287.
—Bail court. In English law and practice. An
auxiliary court of the court of queen's bench at
Westminster, wherein points connected more particularly with pleading and practice are argued
and determined. Holthouse; Wharton, Law Dict.
2d Lond. ed. It has been abolished.
—Bail dock. Formerly at the Old Bailey, in
London, a small room taken from one of the
corners of the court, and left open at the top, in
which certain malefactors were placed during
trial. Cent. Dict.
—Bail in error. That given by a defendant who
intends to bring a writ of error on the judgment
and desires a stay of execution in the meantime.
—Bail piece. A formal entry or memorandum of
the recognizance or undertaking of special bail in
civil actions, which, after being signed and acknowledged by the bail before the proper officer,
is filed in the court in which the action is pending.
3 Bl.Comm. 291; Worthen v. Prescott, 60 Vt. 68,
11 Atl. 690.
BAIL, n. The surety or sureties who procure the
release of a person under arrest, by becoming responsible for his appearance at the time and
place designated. Those persons who become
sureties for the appearance of the defendant in
court.
—Bail to the action or bail above. Special bail (q.
v.).
—Bail above or bail to the action. See Special bail,
infra.
—Bail to the sheriff or bail below. Persons who
undertake that a defendant arrested upon mesne
Black's Law Dictionary Revised 4th Ed.-12
177
BAIL
process in a civil action shall duly appear to answer the plaintiff; such undertaking being in the
form of a bond given to the sheriff, termed a
"bail bond" (q. v.). 3 Bl.Comm. 290; 1 Tidd, Pr.
221. Sureties who bind themselves to the sheriff
to secure the defendant's appearance, or his putting in bail to the action on the return-day of the
writ.
—Bail emphyteotique. An emphyteutic lease; a
lease for a term of years with a right to prolong
indefinitely; practically equivalent to an alienation. 5 Low. C. 381; 6 Low. C. 58. See Emphyteusis.
"Bail to the sheriff was originally designed to temporarily liberate the defendant from close custody, and to
place means in the sheriff's hands to insure the defendant's appearance to answer at the return of the writ.
• • • The appearance which was contemplated was not,
however, necessarily an actual appearance in person, but
by putting in new bail, called bail to the action, special
bail, or bail above. This special bail, or bail above, was
by recognizance, which was matter of record, and an act
of appearance, and by it the bail were bound that if the
defendant should be condemned he should pay or render
himself a prisoner, and if he did not, that they would pay
the condemnation. The undertaking of the ball to the
sheriff, or bail below, was wholly different, and was
adapted to the specific exigency. It was in the form of a
bond to the sheriff, and was conditioned for the defend=
ant's appearance at the return of the writ, which meant
putting in and perfecting bail above." De Myer v. McGonegal, 32 Mich. 120, 124.
BAILABLE ACTION. One in which the defendant is entitled to be discharged from arrest only
upon giving bond to answer.
—Civil bail. That taken in civil actions.
—Common bail. Fictitious sureties formally en.
tered in the proper office of the court. See Bail
common, supra.
—Special bail. Responsible sureties who undertake as bail above. Persons who undertake jointly and severally in behalf of a defendant arrested
on mesne process in a civil action that, if he be
condemned in the action, he shall pay the costs
and condemnation, (that is, the amount which
may be recovered against him,) or render himself
a prisoner, or that they will pay it for him. 3 Bl.
Comm. 291; 1 Tidd, Pr. 245; Sellon, Pr. 137. See
Bail to the sheriff or bail below, supra.
—Straw bail. Nominal or worthless bail. Irresponsible persons, or men of no property, who
make a practice of going bail for any one who
will pay them a fee therefor, and who originally,
as a mark of their purpose, wore straw in their
shoes.
BAIL. Fr. In French and Canadian law. A
lease of lands. See Merlin, Repert. Bail.
—Bail a cheptel. A contract by which one of the
parties gives to the other cattle to keep, feed and
care for, the borrower receiving half the profit of
increase, and bearing half the loss. Duverger.
—Bail a ferme. A contract of letting lands.
—Bail a longues annêes. A lease for more than
nine years; the same as bail emphyteotique (see
infra) or an emphyteutic lease.
—Bail it loyer. A contract of letting houses.
—Bail It rente. A contract partaking of the nature
of the contract of sale, and that of the contract of
lease; it is translative of property, and the rent
is essentially redeemable. Clark's Heirs v. Christ's
Church, 4 La. 286; Poth. Bail a Rente, 1, 3.
BAILABLE. Capable of being bailed; admitting
of bail; authorizing or requiring bail.
BAILABLE OFFENSE. One for which the prisoner may be admitted to bail.
BAILABLE PROCESS. Such as requires the officer to take bail, after arresting the defendant.
That under which the sheriff is directed to arrest
the defendant and is required by law to discharge
him upon his tendering suitable bail as security
for his appearance. A capias ad respondendum
is bailable; not so a capias ad satisfaciendum.
BAILEE. In the law of contracts. One to whom
goods are bailed; the party to whom personal
property is delivered under a contract of bailment.
Hotels Statler Co. v. Safier, 103 Ohio St. 638, 134
N.E. 460, 462, 22 A.L.R. 1190. A species of agent
to whom something movable is committed in trust
for another. Cowart v. State, 16 Ala.App. 119, 75
So. 711, 713; Smith v. State, 78 Okl.Cr. 375, 148
P.2d 206, 208.
BAILEE POLICIES. Floating policies which cover
goods while in possession of warehouse without
particular description in the policy. Gillespie v.
Federal Compress & Warehouse Co., 265 S.W.2d
21, 27, 37 Tenn.App. 476.
BAILIE. In the Scotch law. (1) A magistrate
having inferior criminal and civil jurisdiction,
similar to that of an alderman, (q. v.; ) (2) an
officer appointed to confer infeoffment, (q. v.; ) a
bailiff, (q. v.; ) a server of writs. Bell.
BAILIFF. One to whom some authority, care,
guardianship, or jurisdiction is delivered, committed, or intrusted; one who is deputed or appointed to take charge of another's affairs; an
overseer or superintendent; a keeper, protector,
or guardian; a steward. Spelman. A sheriff's
officer or deputy. 1 Bl.Comm. 344. A court attendant, sometimes called a tipstaff.
A magistrate, who formerly administered justice
in the parliaments or courts of France, answering
to the English sheriffs as mentioned by Bracton.
A person acting in a ministerial capacity who
has by delivery the custody and administration
of lands or goods for the benefit of the owner or
bailor, and is liable to render an account thereof.
Co.Litt. 271; Story, Eq.Jur. § 446; West v. Weyer,
18 N.E. 537, 46 Ohio St. 66, 15 Am.St.Rep. 552.
—Bailiff-errant. A bailiff's deputy.
—Bailiffs of franchises. In English law. Officers
who perform the duties of sheriffs within liberties
178
BAILMENT
or privileged jurisdictions, in which formerly the
king's writ could not be executed by the sheriff.
Spelman.
—Bailiffs of hundreds. In English law. Officers
appointed over hundreds, by the sheriffs, to collect fines therein, and summon juries; to attend
the judges and justices at the assises and quarter
sessions; and also to execute writs and process in
the several hundreds. 1 Bl.Comm. 345; 3 Steph.
Comm. 29; Bract. fol. 116.
—Bailiffs of manors. In English law. Stewards
or agents appointed by the lord (generally by an
authority under seal) to superintend the manor,
collect fines, and quit rents, inspect the buildings,
order repairs, cut down trees, impound cattle
trespassing, take an account of wastes, spoils, and
misdemeanors in the woods and demesne lands,
and do other acts for the lord's interest. Cowell.
—High bailiff. An officer attached to an English
county court. His duties are to attend the court
when sitting; to serve summonses; and to execute
orders, warrants, writs, etc. St. 9 & 10 Vict. c. 95,
§ 33; Poll.C.C.Pr. 16. He also has similar duties
under the bankruptcy jurisdiction of the county
courts.
—Special bailiff. A deputy sheriff, appointed at
the request of a party to a suit, for the special
purpose of serving or executing some writ or
process in such suit.
BAILIVIA. In old law. A bailiff's jurisdiction,
a bailiwick; the same as bailium. Spelman. See
Bailiwick.
In old English law. A liberty, or exclusive jurisdiction, which was exempted from the sheriff of
the county, and over which the lord of the liberty
appointed a bailiff with such powers within his
precinct as an under-sheriff exercised under the
sheriff of the county. Whishaw.
BAILIWICK. A bailivia.
BAILLEUR DE FONDS. In Canadian law. The
unpaid vendor of real estate. 1 Low. C. 1, 6; 9
Low. C. 497.
BAILLI. In old French law. One to whom
judicial authority was assigned or delivered by a
superior.
nature by one party to another to be held according to the
purpose or object of the delivery and to be returned or
delivered over when that purpose is accomplished. Hardin
v. Grant. Tex.Civ.A pp .. 54 S.W.2d 189, 190; Hogan v.
O'Brien, 206 N.Y.S. 831, 833, 123 Misc. 865. The term
"bailment" is derived from the French word "bailler,"
meaning "to deliver." It imports a delivery of personal
property by one person to another m trust for a specific
purpose, with a contract, expressed o implied, that the
trust shall be faithfully executed and the property returned or duly accounted for when the specific purpose
is accomplished or kept until bailor claims it. Commonwealth v. Polk, 256 Ky. 100, 75 S.W.2d 761, 764.
According to Story, the contract does not necessarily
i mply an undertaking to redeliver the goods. On the other
hand, Blac:istone, although his definition does not include
the return, speaks of it in all his examples of bailments as
a duty of the bailee; and Kent says that the application
of the term to cases in which no return or redelivery to the
owner or his agent is contemplated, is extending the definition of the term beyond its ordinary acceptation in English
law. A consignment to a factor would be a bailment for
sale, according to Story; while according to Kent it would
not.
Classification
Sir William Jones has divided bailments into
five sorts, namely: Depositum, or deposit; mandatum, or commission without recompense; commodatum, or loan for use without pay; pignori
acceptum, or pawn; locatum, or hiring, which is
always with reward. This last is subdivided into
locatio rei, or hiring, by which the hirer gains a
temporary use of the thing; locatio operis faciendi, when something is to be done to the thing delivered; locatio operis mercium vehendarum, when
the thing is merely to be carried from one place
to another. Jones, Bailm, 36.
Lord Holt divided bailments thus:
(1) Depositum, or a naked bailment of goods, to be kept
for the use of the bailor.
(2) Commodatum. Where goods or chattels that are useful are lent to the bailee gratis, to be used by him.
(3) Locatio rei. Where goods are lent to the bailee to
be used by him for hire.
(4) Vadium. Pawn or pledge.
(5) Locatio operis faciendi. Where goods are delivered
to be carried, or something is to be done about them, for
a reward to be paid to the bailee.
(6) Mandatum. A delivery of goods to somebody who is
to carry them, or do something about them, gratis. 2 Ld.
Raym. 909.
Another division, suggested by Bouvier as being a better
general division for practical purposes, is as follows :
First, those bailments which are for the benefit of the
bailor, or of some person whom he represents; second,
those for the benefit of the bailee, or some person represented by him; third, those which are for the benefit of
both parties.
In General
—Bailment for hire. A contract in which the
bailor agrees to pay an adequate recompense for
the safe-keeping of the thing intrusted to the custody of the bailee, and the bailee agrees to keep
it and restore it on the request of the bailor, in
the same condition substantially as he received
it, excepting injury or loss from causes for which
he is not responsible.
—Bailment for mutual benefit. One in which
the parties contemplate some price or compensaA delivery of goods for some purpose, upon a contract,
express or implied, that after the purpose has been fultion in return for benefits flowing from the bailfilled they shall be redelivered to the bailor, or otherwise
ment, necessarily involving an express or imdealt with according to his direction, or kept until
plied agreement or undertaking to that effect.
reclaimed. In re George L. Nadell & Co., 294 Mich. 150,
292 N.W. 684, 686. A delivery of something of a personal
Armored Car Service, Inc. v. First Nat. Bank of
179
BAILMENT. A delivery of goods or personal property, by one person to another, in trust for the
execution of a special object upon or in relation
to such goods, beneficial either to the bailor or
bailee or both, and upon a contract, express or
implied, to perform the trust and carry out such
object, and thereupon either to redeliver the goods
to the bailor or otherwise dispose of the same in
conformity with the purpose of the trust. Fulcher
v. State, 32 Tex.Cr.R. 621, 25 S.W. 625.
BAILMENT
Miami, Fla.App., 114 So.2d 431, 434. For example,
delivery of automobile to one who, for a consideration, undertakes to repair it. Fox Chevrolet Sales,
Inc. v. Middleton, to Use of Farm Bureau Mut.
Auto. Ins. Co., 99 A.2d 731, 732, 203 Md. 158, 43
A.L.R.2d 399.
—Actual bailment. One which exists where there
is either (a) an "actual delivery," consisting in
giving to the bailee or his agent the real possession of the chattel, or ( b) a "constructive delivery," consisting of any of those acts which,
although not truly comprising real possession of
the goods transferred, have been held by legal
construction equivalent to acts of real delivery.
Wentworth v. Riggs, 159 App.Div. 899, 143 N.Y.S.
955, 956.
—Constructive bailment. One arising where the
person having possession of a chattel holds it
under such circumstances that the law imposes
upon him the obligation to deliver it to another.
Wentworth v. Riggs, 159 App.Div. 899, 143 N.Y.S.
955, 956. See, also, Involuntary bailment, infra.
—Gratuitous bailment. Another name for a
depositum or naked bailment, which is made only
for the benefit of the bailor and is not a source of
profit to the bailee. Foster v. Essex Bank, 17
Mass. 499, 9 Am.Dec. 168.
—Involuntary bailment. One arising by the accidental leaving of personal property in the possession of any person without negligence on the part
of its owner. Grossman Co. v. White, 52 Okl. 117,
152 P. 816, 817
A "bailment" Is created by the element of lawful possession and the duty to act for the thing as the property
of another, whether such possession is based on contract
in the ordinary sense or not. Foulke v. New York Consol.
R. Co., 228 N.Y. 269, 127 N.E. 237, 239, 9 A.L.R. 1384. See
Constructive bailment, supra.
—Lucrative bailment. One which is undertaken
upon a consideration and for which a payment or
recompense is to be made to the bailee, or from
which he is to derive some advantage. Prince v.
Alabama State Fair, 106 Ala. 340, 17 So. 449, 28
L.R.A. 716.
—Bailment lease. A legal metnod by which one
desiring to purchase an article but unable to pay
therefor at the time, may secure possession thereof with the right to use and enjoy it as long as
he pays stipulated rentals and becomes absolute
owner after completing such installment payments, on payment of an additional sum which
may be nominal. In re Robinson, D.C.Pa., 40 F.
Supp. 320, 322, 323.
—Debt. The distinction between an obligation to
restore the specific thing received, or of returning
others of equal value, is the distinction between a
"bailment" and a "debt." Alamitos Land Co. v.
Texas Co., 11 Cal.App.2d 614, 54 P.2d 489, 491.
—
Exchanges. An agreement by which A is to
let B have a horse, in consideration that B will
let A have another horse, creates an exchange,
not a bailment. Austin v. Seligman, C.C.N.Y., 21
Blatchf. 506, 18 Fed. 519.
—Partnerships. Where animals are delivered to
be taken care of for a certain time, and at the
expiration of that time the same number of animals is to be returned, and any increase is to be
enjoyed by both parties, there is a bailment, not a
partnership. Simmons v. Shaft, 91 Kan. 553, 138
P. 614, 615.
—Sales. The test of a bailment is that the identical thing is to be returned in the same or in some
altered form; if another thing of equal value is
to be returned, the transaction is a sale. Sturm v.
Boker, 14 S.Ct. 99, 150 U.S. 312, 37 L.Ed. 1093;
Borman v. U. S., C.C.A.N.Y., 262 F. 26, 29.
Conditional sale. Contemplates that at some time the
title shall pass to the purchaser and that he shall pay the
purchase price, while a "bailment" contemplates that the
title shall not pass to the bailee, but remain in the bailor,
and that the property shall be returned to the bailor. Vermont Acceptance Corporation v. Wiltshire, 103 Vt. 219, 153
A. 199, 200, 73 A.L.R. 792.
—.Trusts. The passing of the legal title from the
owner to the party to whom personal property is
delivered distinguishes a "trust" from a bailment.
National Cattle Loan Co. v. Ward, 113 Tex. 312,
255 S.W. 160, 164; McIntyre v. Smith, 154 Md.
660, 141 A. 405, 410.
BAILOR. The party who bails or delivers goods
to another, in the contract of bailment. McGee v.
French, 49 S.C. 454, 27 S.E. 487; Story, Bailm.
§1 74, 388.
BAIR-MAN. In old Scotch law. A poor insolvent
debtor, left bare and naked, who was obliged to
swear in court that he was not worth more than
five shillings and fivepence.
BAIRN'S PART. In Scotch law. Children's part;
a third part of the defunct's free movables, debts
deducted, if the wife survive, and a half if there
be no relict. See Legitim.
BAIRNS. In Scotch law. A known term, used to
denote one's whole issue. Ersk.Inst. 3, 8, 48. But
it is sometimes used in a more limited sense.
Bell.
Bailments as Distinguished from Other
BAIT. To attack with violence; to provoke and
Transactions
harass. 2 A. & E. Encyc. 63; L.R. 9 Q.B. 380.
—Chattel mortgages. A radical distinction between a bailment and a chattel mortgage is that,
BAITING ANIMALS. In English law. Procuring
by a mortgage, the title is transferred to the
them to be worried by dogs. Punishable on summortgagee, subject to be revested by performance mary conviction, under 12 & 13 Vict. c. 92, 1 3.
of the condition, but, in case of a bailment, the
BAKER. In its ordinary use respecting a bakery
bailor retains the title and parts with the posbusiness, a generic term including in its scope
session for a special purpose. Walker v. Staples, 5
different services connected with the bakery busiAllen (Mass.) 34.
180
BALLAST
ness, such as doing shop service in putting bread
in boxes. Futopolus v. Midland Casualty Co., 174
Wis. 208, 182 N.W. 845, 847.
BAKERY. Any place used for the purpose of
mixing, compounding, or baking for sale or for
purposes of a restaurant, bakery or hotel, any
bread, biscuit, pretzels, crackers, buns, rolls, macaroni, cake, pies, or any food products of which
flour or meal is a principal ingredient. Continental Baking Co. v. Campbell, 176 Okl. 218, 55 P.2d
114, 116.
BAKING POWDER. A mixture in dry form of
certain alkali and acid substances, combined with
a filler; when moistened and heated, as in baking
dough, a chemical reaction occurs, liberating carbonic gas, which "raises" or leavens the bread.
Royal Baking Powder Co. v. Emerson, C.C.A.Ark.,
270 F. 429, 436.
BALIENA. A large fish, called by Blackstone a
"whale." Of this the king had the head and the
queen the tail as a perquisite whenever one was
taken on the coast of England. 1 Bl.Comm. 222;
Prynne, Ann.Reg. 127.
BALANCE. An equality between the sums total
of the two sides of an account, or the excess on
either side. Jones v. Marrs, 114 Tex. 62, 263 S.W.
570, 574.
• The conclusion or result of the debit and credit sides of
an account. It implies mutual dealings, and the existence
of debt and credit, without which there could be no balance. Thillman v. Shadrick, 69 Md. 528, 16 Atl. 138. The
amount remaining due from one person to another on a
settlement of the accounts involving their mutual dealings;
the difference between the two sides (debit and credit) of
an account.
Often used in the sense of residue or remainder, and, in
a general sense, may be defined as what remains or is left
over. Commercial Discount Co. v. Holland, 107 Cal.App.
83, 289 P. 906, 908.
—Balance of convenience. A term descriptive of
a rule for determining in a doubtful case what
decree should be made; for example, whether an
injunction should be granted. Cohen v. City of
Houston, Tex.Civ.App., 176 S.W. 809, 814. It pertains to a test to determine what order will with
the least inconvenience to either party assure the
victorious one the fruits of his decree. Town of
Williams v. Iowa Falls Electric Co., 185 Iowa, 493,
170 N.W. 815.
—Balance of power. In international law. A distribution and an opposition of forces, forming one
system, so that no state shall be in a position,
either alone or united with others, to impose its
will on any other state or interfere with its independence. Ortolan.
—Balance sheet. A statement made by merchants
and others to show the true state of a particular
business.
When it is desired to ascertain the exact state of a
merchant's business, or other commercial enterprise, at a
given time, all the ledger accounts are closed up to date
and balances struck; and these balances, when exhibited
together on a single page, and so grouped and arranged as
to close into each other and be summed up in one general
result, constitute the "balance-sheet." Eyre v. Harmon,
92 Cal. 580, 28 P. 779.
—General balance. Sometimes used to signify the
difference which is due to a party claiming a lien
on goods in his hands for work or labor done, or
money expended in relation to those and other
goods of the debtor. 3 B. & P. 485; 3 Esp. 268;
McWilliams v. Allan, 45 Mo. 573.
—Net balance. In commercial usage, the balance
of the proceeds, as from a sale of stock, after
deducting the expenses incident to the sale. Evans
v. Waln, 71 Pa. 74.
BALCANIFER, or BALDAKINIFER. The standard-bearer of the Knights Templar.
BALCONIES. Small galleries of wood or stone on
the outside of houses. In London, the erection of
them is regulated by the building acts.
BALDIO. In Spanish law. Waste land; land that
is neither arable nor pasture. White New Recop.
b. 2, tit. 1, c. 6, § 4, and note. Unappropriated public domain, not set apart for the support of municipalities. Sheldon v. Milmo, 90 Tex. 1, 36 S.W.
415.
BALE. A pack or certain quantity of goods or
merchandise, wrapped or packed up in cloth and
corded round very tightly, marked and numbered
with figures corresponding to those in the bills of
lading for the purpose of identification. Wharton.
A bale of cotton is a certain quantity of that commodity
compressed into a cubical form, so as to occupy less room
than when in bags. 2 Car. & P. 525. Penrice v. Cocks, 2
Miss. 229.
A standard package of merchantable lint cotton, separated from the seed by the first process of a cotton gin,
weighing approximately 500 pounds, and classifiable under
one of the recognized market grades. Wichita Falls Compress Co. v. W. L. Moody & Co., Tex.Civ.App., 154 S.W.
1032, 1045.
BALISE. Fr. In French marine law. A buoy.
BALIUS. In the civil law. A teacher; one who
has the care of youth; a tutor; a guardian. Du
Cange; Spelman.
BALIVA. (Spelled also Balliva; equivalent to
Balivatus, Balivia). L. Lat. In old English law.
A bailiwick; the jurisdiction of a sheriff; the
whole district within which the trust of the sheriff
was to be executed. Cowell; 3 Bla.Com. 283.
BALIVO AMOVENDO. See Ballivo Amovendo.
BALL—HOOTING. In lumbering, a term designating a process of sliding log down a mountain side.
Bradford v. English, 190 N.C. 742, 130 S.E. 705.
BALLAST. That which is used for trimming a
ship to bring it down to a draft of water proper
and safe for sailing. Great Western Ins. Co. v.
Thwing, 13 Wall. 674, 20 L.Ed. 607.
There is considerable analogy between ballast and dunnage. Dunnage is placed under the cargo to keep it from
being wetted by water getting into the hold, or between
the different parcels to keep them from bruising and injuring each other. Great Western Ins. Co. v. Thwing, 13
Wall. 674, 20 L. Ed. 607.
181
BALLASTAGE
BALLASTAGE. A toll paid for the privilege of
taking up ballast from the bottom of a port or
harbor. This arises from the property in the soil.
2 Chitty, Comm.Law 16.
BALLIUM. A fortress or bulwark; also bail. Cunningham.
BALLIVO AMOVENDO. An ancient writ to remove a bailiff from his office for want of sufficient
land in the bailiwick. Reg.Orig. 78.
BALLOON. See Aeronaut; Aeronautics; Aircraft.
BALLOON MORTGAGE. A mortgage providing
for specific payments at stated regular intervals,
and final payment of more than twice any of the
periodic payments. Bellman v. Yarmark Enterprises, Inc., Fla.App., 180 So.2d 663, 665.
BALLOT. Derived from ballotta, a round bullet,
a voice or lot, means act of voting, usually in
secret, by balls or by written or printed tickets or
slips of paper; the system of voting by balls or
tickets, or by any device for casting or recording
votes, as by voting machine. Norris v. Mayor and
City Council of Baltimore, 192 A. 531, 535, 172 Md.
667. Also piece of paper on which the voter gives
expression to his choice. Sawyer Stores v. Mitchell, 103 Mont. 148, 62 P.2d 342, 348.
A slip of paper bearing the names of the offices to be
filled at the particular election and the names of the candidates for whom the elector desires to vote, or containing a particular question of administration or public policy
on which the voter is asked to express his views. It may
be printed, or written, or partly printed and partly written, and is deposited by the voter in a "ballot box" which
is in the custody of the officers holding the election.
Denny v. Pratt, 104 Conn. 396, 133 A. 107, 108.
Used as a symbol of secrecy, while "viva voce" is used
as a symbol of publicity. Day v. Walker, 124 Neb. 500, 247
N.W. 350, 351.
The whole amount of votes cast.
Joint Ballot
In parliamentary practice, an election or vote
by. ballot participated in by the members of both
houses of a legislative assembly sitting together
as one body, the result being determined by a
majority of the votes cast by the joint assembly
thus constituted, instead of by concurrent majorities of the two houses. See State v. Shaw, 9 S.C.
144.
Official Ballot
Depending on its use in local statutes, this term
has a varied meaning. It may refer to a ballot
which has been furnished by the clerk; Cain v.
Garvey, Tex.Civ.App., 187 S.W. 1111, 1116; or it
may contemplate that a ballot must have been
printed under the supervision of a designated
member of the electoral board, sealed by the
board, and by resolution declared to be one of the
official ballots for the election to be held; Xippas
v. Commonwealth, 141 Va. 497, 126 S.E. 207, 209.
or deprived of some essential or valuable part;
greatly shortened. Stubbs v. Moursund, Tex.Civ.
App., 222 S.W. 632, 634.
BALLOT-BOX. A case usually made of wood for
receiving ballots.
BALLOTTEMENT. Fr. In medical jurisprudence. A test for pregnancy by palpation with
the finger inserted in the vagina to the mouth of
the uterus. The tip of the finger being quickly
jerked upward, the foetus, if one be present, can
be felt rising upward and then settling back
against the finger.
BALNEARIL In the Roman law. Those who
stole the clothes of bathers in the public baths.
4 Bl.Comm. 239.
BAN.
In Old English and Civil Law
A proclamation; a public notice; the announcement of an intended marriage. Cowell. An excommunication; a curse, publicly pronounced. A
proclamation of silence made by a crier in court
before the meeting of champions in combat.
Cowell. A statute, edict, or command; a fine, or
penalty. An expanse; an extent of space or territory; a space inclosed within certain limits; the
limits or bounds themselves. Spelman. An open
field; the outskirts of a village. A privileged
space or territory around a town, monastery, or
other place.
French Law
The right of announcing the time of mowing,
reaping, and gathering the vintage, exercised by
certain seignorial lords. Guyot, Repert. Univ.
Old European Law
A military standard; a thing unfurled, a banner.
Spelman. A summoning to a standard; a calling
out of a military force; the force itself so summoned; a national army levied by proclamation.
BANAL. In Canadian and old French law. Pertaining to a ban or privileged place; having qualities or privileges derived from a ban. Thus, a
banal mill is one to which the lord may require
his tenant to carry his grain to be ground.
BANALITY. In Canadian law. The right by virtue of which a lord subjects his vassals to grind at
his mill, bake at his oven, etc. Used also of the
region within which this right applied. Guyot,
Repert. Univ.; 1 Low.C. 31; 3 Low.C. 1.
BANC. Bench; the place where a court permanently or regularly sits; the seat of judgment;
as, banc le roy, the king's bench; banc le common
pleas, the bench of common_pleas.
The full bench, full court. A "sitting 'in bane"
is a meeting of all the judges of a court, usually
for the purpose of hearing arguments on demurMutilated Ballot
rers, points reserved, motions for new trial, etc.,
as distinguished from the sitting of a single judge
One from which the name of the candidate is
at the assises or at nisi Arius and from trials at
cut out. Murray v. Waite, 113 Me. 485, 94 A. 943,
bar. Cowell.
945, Ann.Cas.1918A, 1128. One which is destitute
182
BANI
BANISHMENT. In criminal law. A punishment
inflicted upon criminals, by compelling them to
quit a city, place, or country for a specified period
of time, or for life. Cooper v. Telfair, 4 Dall. 14,
1 L.Ed. 721; People v. Potter, 1 Park.Cr.R. (N.Y.)
54. Synonymous with exilement and imports a
compulsory loss of one's country. 3 P. Wms. 38.
BANCI NARRATORES. In old English law. Advocates; countors; serjeants. Applied to advocates in the common pleas courts. 1 Bl.Comm. 24;
Cowell.
BANCO. Ital. A seat or bench of justice; also,
in commerce, a word of Italian origin signifying
a bank. Also a small tract of land on opposite
side of river from country to which it belongs, and
so existing by virtue of an avulsive change in the
river. San Lorenzo Title & Improvement Co. v.
City Mortgage Co., Tex.Civ.App., 48 S.W.2d 310,
314. See, also, Banc.
It is inflicted principally upon political offenders, "transportation" being the word used to express a similar punishment of ordinary criminals. Banishment, however,
merely forbids the return of the person banis'ed before the
expiration of the sentence, while transportation involves
the idea of deprivation of liberty after the convict arrives
at the place to which he has been carried. Rap. & L.
BANCUS. L. Lat. In old English law and practice. A bench or seat in the king's hall or palace.
Fleta, lib. 2, c. 16, §
A high seat, or seat of distinction; a seat of
judgInent, or tribunal for the administration of
justice.
BANISTER AND RAILING. These words, in the
New York Tenement House Law, § 35, mean a
balustrade, consisting of balusters or supports,
upon which is placed a railing commonly placed
on the outer or open edge of a stairway. Cahill v.
Kleinberg, 233 N.Y. 255, 135 N.E. 323.
Often used for the court itself ; thus, the English court
of common pleas was formerly called Bancus. Viner, Abr.
Courts (M).
BANK. A bench or seat; the bench of justice;
the bench or tribunal occupied by the judges; the
seat of judgment; a court. The full bench, or
full court; the assembly of all the judges of a
court.
A sitting in banc; the sittings of a court with
its full judicial authority, or in full form, as
distinguished from sittings at nisi prius. Cowell;
Spelman.
A stall, bench, table, or counter, on which goods
were exposed for sale. Cowell.
A "sitting in bank" is a meeting of all the judges of a
court, usually for the purpose of hearing arguments on
demurrers, points reserved, motions for new trial, and
other law points, as distinguished from the sitting of a
single judge at the assises or at nisi prius and from trials
at bar to determine facts. 3 Bla.Comm. 28, n. But in this
sense, banc is perhaps the more usual form of the word.
"Sitting in bank" is also described as an official meeting
of four of the judges of a common-law court. Wharton,
Lex.
BANCUS REGIME, The queen's bench. See
Queen's Bench.
BANCUS REGIS. The king's bench; the supreme
tribunal of the king after parliament. 3 Bl.Comm.
41.
In Banco Regis. In or before the court of king's
bench.
Bank le Roy. The king's bench. Finch, 198.
An acclivity; an elevation or mound of earth,
especially that which borders the sides of a water
course.
BANCUS SUPERIOR. The upper bench. The
king's bench was so called during the Protectorate.
BAND. In old Scotch law. A proclamation calling
out a military force.
BANDIT. An outlaw; a man banned, or put under a ban; a brigand or robber. Banditti, a band
of robbers.
BANE. A malefactor. Bract. 1. 1, t. c. 1.
Also a public denunciation of a malefactor;
the same with what was called "hutesium," hue
and cry. Spelman.
BANERET, or BANNERET. In English law. A
knight made in the field, by the ceremony of
cutting off the point of his standard, and making
it, as it were, a banner. Knights so made are
accounted so honorable that they are allowed to
display their arms in the royal army, as barons
do, and may bear arms with supporters. They
were sometimes called "vexillarii." Wharton.
A degree of honor next after a baron's, when
conferred by the king; otherwise, it ranks after
a baronet. 1 Bla.Comm. 403.
BANI. Deodands (q. v.).
The land adjacent to a river. Graham v. Knight, Tex.
Civ.App., 240 S. W. 981, 983.
That part of a stream which retains the water. Dawson
County v. Phelps County, 94 Neb. 112, 142 N.W. 697, 699.
The elevation of land which confines the waters of a
stream in their natural channel when they rise the highest
and do not overflow the banks. Department of Health of
New Jersey v. Chemical Co. of America, 90 N.J.Eq. 425,
107 A. 164, 166. A water-washed and relatively permanent
elevation or acclivity at the outer line of a river bed which
separates the bed from the adjacent upland, and serves to
confine the waters within the bed and to preserve the
course of the river. State of Oklahoma v. State of Texas,
43 S.Ct. 221, 260 U.S. 606, 67 L.Ed. 428; Horton v. Niagara,
Lockport & Ontario Power Co., 247 N.Y.S. 741, 745, 231
App.Div. 386. The land lying between the edge of the
water of a stream at its ordinary low stage and the line
which the edge of the water reaches in its ordinary high
stage. Wemple v. Eastham, 150 La. 247, 90 So. 637, 638.
An elevation of land which confines the waters of a
stream when they rise out of the bed. Neither the line of
ordinary high-water mark, nor of ordinary low-water
mark, nor of a middle stage of water can be assumed as
the line dividing the bed from the banks. Banks are fast
land, on which vegetation appropriate to such land in the
particular locality grows wherever the bank is not too
steep to permit such growth, and bed is soil of a different
character, and having no vegetation, or only such as exists,
when commonly submerged in water. State v. Nolegs, 139
P. 943, 946, 40 Okl. 479. On the borders of navigable
streams, where there are levees established according to
law, the levees form the "banks of the river." Ward v.
Board of Levee Com'rs of Orleans Levee Dist., 152 La. 158,
92 So. 769, 772.
An institution, of great value in the commercial
world, empowered to receive deposits of money,
183
BANK
to make loans, and to issue its promissory notes,
(designed to circulate as money, and commonly
called "bank-notes" or "bank-bills,") or to perform
any one or more of these functions. State v.
Wagner, 202 Iowa, 739, 210 N.W. 901, 902; People
v. Bartow, 6 Cow.N.Y. 290; Dearborn v. Northwestern Savings Bank, 42 Ohio St. 617; In re
Prudence Co., D.C.N.Y., 10 F.Supp. 33, 36.
An institution, usually incorporated with power to issue
its promissory notes intended to circulate as money (known
as bank notes) ; or to receive the money of others on general deposit, to form a joint fund that shall be used by the
institution, for its own benefit, for one or more of the purposes of making temporary loans and discounts ; of dealing in notes, foreign and domestic bills of exchange, coin,
bullion, credits, and the remission of money; or with both
these powers, and with the privileges, in addition to these
basic powers, of receiving special deposits and making collections for the holders of negotiable paper, if the institution sees fit to engage in such business. State of Kansas
ex rel. Boynton v. Hayes, C.C.A.Kan., 62 F.2d 597, 600.
The term "bank" is usually restricted in its application
to an incorporated body; while a private individual making it his business to conduct banking operations is generally denominated a "banker." Hobbs v. Bank, C.C.A.
N.Y., 101 F. 75, 41 C.C.A. 205; Wells, Fargo & Co. v.
Northern Pac. R. Co., C.C.Or., 23 F. 469.
The house or place where the business of banking is carried on.
Banks in the commercial sense are of three kinds, viz. :
(1) of deposit; (2) of discount; (3) of circulation. Strictly speaking, the term "bank" implies a place for the deposit of money, as that is the most obvious purpose of
such an institution. Originally the business of banking
consisted only in receiving deposits, such as bullion, plate,
and the like, for safe-keeping until the depositor should
see fit to draw it out for use, but the business, in the
progress of events, was extended, and bankers assumed to
discount bills and notes, and to loan money upon mortgage, pawn, or other security, and, at a still later period,
to issue notes of their own, intended as a circulating currency and a medium of exchange, instead of gold and silver. Modern bankers frequently exercise any two or even
all three of those functions, but it is still true that an institution prohibited from exercising any more than one
of those functions is a bank,y in the strictest commercial
sense. Oulton v. German Sa . & L. Soc., 17 Wall. 118, 21
L.Ed. 618; Millikan v. Security Trust Co., 118 N.E. 568,
569, 187 Ind. 307; Rev.St.U.S. § 3407 (12 USCA § 561).
—Bank-account. A sum of money placed with a
bank or banker, on deposit, by a customer, and
subject to be drawn out on the latter's check. The
statement or computation of the several sums
deposited and those drawn out by the customer on
checks, entered on the books of the bank and the
depositor's passbook. Gale v. Drake, 51 N.H. 84.
—Bank bill. Same as bank note. Eastman v.
Corn., 4 Gray (Mass.) 416. See Bank note, infra.
—Bank book. A book kept by a customer of a
bank, showing the state of his account with it.
See Pass-book.
—Bank cashier. A chief executive officer and
general agent through whom financial operations
of bank are conducted. Hamilton Nat. Bank of
Chattanooga, Tenn., v. Lerman, 229 Ala. 363, 157
So. 75.
—Bank charges. This term in an action on a bill
of exchange is equivalent to expenses of noting
and may be especially endorsed as a liquidated
demand; [1893] 1 Q.B. 318.
—Bank check. See Check.
—Bank credit. A credit with a bank by which,
on proper security given to the bank, a person receives liberty to draw to a certain extent agreed
upon. In Scotland also called a cash account.
Cent. Dict.
—Bank depositor. One who delivers to or leaves
with a bank a sum of money subject to his order.
Wharton v. Poughkeepsie Sa y . Bank, 31 N.Y.S.2d
311, 313, 262 App.Div. 598.
—Bank draft. A check, draft, or other order for
payment of money, drawn by an authorized officer
of a bank upon either his own bank or some other
bank in which funds of his bank are deposited.
Polotsky v. Artisans Sa y . Bank, Del., 180 A. 791,
792, 7 W.W.Harr. 142.
—Bank note. A promissory note issued by a bank
or banker authorized to do so, payable to bearer
on demand, and intended to circulate as money.
Townsend v. People, 4 Ill. 328; Low v. People, 2
Park.Cr.R. (N.Y.) 37. See, also, Banker's note.
In the early history of banks, their notes were generally
denominated bills of credit. Briscoe v. Bank of the Commonwealth of Kentucky, 11 Pet. 257, 9 L.Ed. 709.
—Bank stock. Shares in the capital of a bank;
shares in the property of a bank. In England the
term is applied chiefly to the stock of the Bank
of England.
—Bank teller. See Teller.
—Bank in failing condition. Under sdme statutes,
an insolvent bank. Hanson v. State, 160 Ark. 329,
254 S.W. 691, 694.
—Bank of circulation. One which issues bank
notes payable to bearer. Dunn v. State, 13 Ga.
App. 314, 79 S.E. 170, 171. See Bank of issue,
infra.
—Bank of deposit. A savings bank or any other
bank which receives money on deposit. Dunn v.
State, 13 Ga.App. 314, 79 S.E. 170, 171.
—Bank of discount. One which lends money on
collateral or by means of discounts of commercial
paper. Dunn v. State, 13 Ga.App. 314, 79 S.E. 170,
171.
—Bank of issue. One which, pursuant to authority conferred by its charter, issues its own notes
intended to circulate as money. Millikan v. Security Trust Co., 187 Ind. 307, 118 N.E. 568, 569.
—Joint-stock banks. In English law. Joint-stock
companies for the purpose of banking. They are
regulated, according to the date of their incorporation, by charter, or by 7 Geo. IV, c. 46; 7 & 8
Vict. cc. 32, 113; 9 & 10 Vict. c. 45, (in Scotland
and Ireland; ) 20 & 21 Vict. c. 49; and 27 & 28
Vict. c. 32; or by the "Joint-Stock Companies
Act, 1862," (25 & 26 Vict. c. 89.) Wharton.
—Savings bank. An institution in the nature of a
bank, formed or established for the purpose of
receiving deposits of money, for the benefit of the
184
BANKER'S
persons depositing, to accumulate the produce of
so much thereof as shall not be required by the
depositors, their executors or administrators, at
compound interest, and to return the whole or
any part of such deposit, and the produce thereof,
to the depositors, their executors or administrators, deducting out of such produce so much as
shall be required for the necessary expenses attending the management of such institution, but
deriving no benefit whatever from any such deposit or the produce thereof. Grant, Banks, 546;
Bulakowski v. Philadelphia Sa y . Fund Soc., 270
Pa. 538, 113 A. 553, 554. They differ from the ordinary banks of discount and deposit in not being
engaged in business for profit. Commercial Trust
Co. of New Jersey v. Hudson County Board of
Taxation, 86 N.J.Law, 424, 92 A. 263, 265.
BANKABLE PAPER. In mercantile law. Notes,
checks, bank bills, drafts, and other securities for
money, received as cash by the banks. The term
does not necessarily mean discountable paper, but
paper of such high credit that, if the time of payment was reasonable and the banks had loanable
funds, they would ordinarily discount it. Edward
P. Allis Co. v. Madison Electric Light, Heat &
Power Co., 9 S.D. 459, 70 N.W. 650, 652.
BANK HOLIDAY OF 1933. Presidential Proclamations No. 2039, issued March 6, 1933, and No.
2040, issued March 9, 1933, temporarily suspended
banking transactions by member banks of the
Federal Reserve System. Normal banking functions were resumed on March 13, subject to certain restrictions. The first proclamation, it was
held, had no authority in law until the passage
on March 9, 1933, of a ratifying act (12 U.S.C.A. §
95b). Anthony v. Bank of Wiggins, 183 Miss.
885, 184 So. 626. The present law forbids member
banks of the Federal Reserve System to transact
banking business, except under regulations of the
Secretary of the Treasury, during an emergency
proclaimed by the President. 12 U.S.C.A. § 95.
Individual Banker
Under some statutes, an individual banker, as
distinguished from a "private banker" (q. v.), is a
person who, having complied with the statutory
requirements, has received authority from the
state to engage in the business of banking, while
a private banker is a person engaged in banking
without having any special privileges or authority
from the state. Perkins v. Smith, 116 N.Y. 441,
23 N.E. 21.
Private Banker
One who carries on the business of banking
without being incorporated. State of Missouri v.
Angle, C.C.A.Mo., 236 F. 644, 650; Herzog v.
Transatlantic Trust Co., Sup., 172 N.Y.S. 394, 395.
One who carries on the business of banking by receiving money on deposit with or without interest,
by buying and selling bills of exchange, promissory notes, gold or silver coin, bullion, uncurrent
money, bonds or stock, or other securities, and
by loaning money without being incorporated.
State ex rel. Barker v. Sage, 267 Mo. 493, 184 S.W.
984, 988. See Individual banker, supra.
National bank notes are received as bankable money
without regard to the locality of the bank issuing them.
U.S.Rev.Stat. § 5133 (12 USCA § 21); Veazie Bank v. Fenno, 8 Wall. 533, 19 L.Ed. 482.
BANKER. A private person who keeps a bank;
one who is engaged in the business of banking.
People v. Doty, 80 N.Y. 228; Auten v. Bank, 19
S.Ct. 628, 174 U.S. 125, 43 L.Ed 920.
BANK NIGHT. A device by which a theater provides a registration book which any person over
eighteen years of age, whether a patron of the
theater or not, may sign. The book is placed in
the lobby or outside the doors of the theater and
no charge is made for registration nor need one
who does so buy a ticket to the theater. A number is given to each name. On stated occasions,
the numbers representing all the names registered are placed in a container on the stage of
BANKER'S ACCEPTANCE. A draft or bill of
the theater and one number is drawn. The name
exchange of which the acceptor is a bank or
of the person having that registration number is
banker engaged generally in the business of
announced both inside and outside the theater
granting bankers' acceptance credits. Atterbury
and on coming forward within a certain time, he v. Bank of Washington Heights of City of New
receives a sum of money which the theater proYork, 241 N.Y. 231, 149 N.E. 841, 843.
vides from its own funds. If the person whose
number is drawn is outside the theater, he is per- BANKER'S LIEN. A lien which a banker has
mitted to enter and claim the award without pay- by virtue of which he can appropriate any money
ing the admission. If he does not come forward
or property in his possession belonging to a cuswithin the time set, the money is added to the
tomer to the extinguishment of any matured debt
sum to be awarded on the next bank night. Unof such customer to the bank, provided such propder the plan, various safeguards are thrown about erty or money has not been charged, with the
the operation to insure fairness in the allotment
knowledge of the bank, with the subservience of
of the money. State v. Dorau, 124 Conn. 160, 198
a special burden or purpose, or does not constitute
A. 573, 574. If not a lottery, a bank night is at a trust fund of which the banker has notice.
least a gift enterprise. Barker v. State, 56 Ga. American Surety Co. of New York v. Bank of
App. 705, 193 S.E. 605, 609. But it is generally Italy, 63 Cal.App. 149, 218 P. 466, 468.
considered to be a lottery. State ex rel. Hunter
v. Fox Beatrice Theatre Corporation, 133 Neb.
BANKER'S NOTE. A commercial instrument re392, 275 N.W. 605, 606; Furst v. A. & G. Amuse- sembling a bank note in every particular except
ment Co., 128 N.J.L. 311, 25 A.2d 892, 893; Comthat it is given by a private banker or unincorpomonwealth v. Lund, 142 Pa.Super. 208, 15 A.2d rated banking institution. 6 Mod. 29; 3 Chit.
839, 846.
Comm.Law 590.
185
BANKEROUT
BANKEROUT. 0. Eng. Bankrupt; insolvent;
indebted beyond the means of payment.
BANKING. The business of receiving money on
deposit, losaning money, discounting notes, issuing
notes for circulation, collecting money on notes
deposited, negotiating bills, etc. Bank v. Turner,
154 Ind. 456, 57 N.E. 110.
The business of banking, as defined by law and custom,
consists in the issue of notes payable on demand intended
to circulate as money when the banks are banks of issue;
In receiving deposits payable on demand ; in discounting
commercial paper ; making loans of money on collateral
security; buying and selling bills of exchange; negotiating loans, and dealing in negotiable securities issued by
the government, state and national, and municipal and other corporations. Mercantile Bank v. New York, 121 U.S.
138, 156, 7 S.Ct. 826, 30 L.Ed. 895 ; In re Prudence Co., D.
C.N.Y., 10 F.Supp. 33, 36.
Having a place of business where deposits are received
and paid out on checks and where money is loaned on
security is the substance of the "business of banking."
Marvin v. Kentucky Title Trust Co., 218 Ky. 135, 291. S.W.
17, 18, 50 A.L.R. 1337; State of Kansas ex rel. Boynton v.
Hayes, C.C.A.Kan., 62 F.2d 597, 600.
BANKING A DEAL. Means making to one who
wishes to consummate a deal a loan of money on
collateral for a consideration which may consist of
interest, a fee, or a part of the securities or property involved in the deal. Cray, McFawn & Co.
v. Hegarty, Conroy & Co., D.C.N.Y., 27 F.Supp. 93,
99.
BANKING GAME. Gambling game at which money is bet or hazarded. State v. Singley, 195 La.
519, 197 So. 218, 219.
BANKING HOURS. A term which, in addition to
the regular hours, includes time to allow presentment, after closing, to the bank returning a check,
if such presentment is necessary in fact. Columbia-Knickerbocker Trust Co. v. Miller, 156 App.
Div. 810, 142 N.Y.S. 440, 445.
BANKRUPT. Originally and strictly, a trader
who secretes himself or does certain other acts
tending to defraud his creditors. 2 Bl.Comm. 471;
Shor v. McGregor, C.C.A.Tex., 108 F.2d 421, 423.
In a looser sense, an insolvent person; a brokenup or ruined trader. Everett v. Stone, 3 Story,
453, Fed.Cas.No.4,577.
In the English law there were two characteristics which
distinguished bankrupts from insolvents : the former must
have been a trader and the object of the proceedings
against, not by, him. As used in American law, the distinction between a bankrupt and an insolvent is not generally regarded. Sturges v. Crowninshield, 4 Wheat. 122,
4 L.Ed. 529; 2 Kent, 390; McCormick v. Pickering, 4 N.Y.
283. On the continent of Europe, however, the distinction
still exists. Holtz.Enc. voc. sig. Bankerott.
A person who has committed an act of bankruptcy; one who has done some act or suffered
some act to be done in consequence of which,
under the laws of his country, he is liable to be
proceeded against by his creditors for the seizure
and distribution among them of his entire property. Ashby v. Steere, 2 Woodb. & M. 347, 2 Fed.
Cas. 15; In re Scott, 21 Fed.Cas. 803; U. S. v.
Pusey, 27 Fed.Cas. 632. For "Examination of
bankrupt", see Examination.
The term includes one against whom involuntary petition
has been filed. United States v. Agresti, C.C.A.N.Y., 130
F.2d 152, 153, 154.
A person who, by the formal decree of a court,
has been declared subject to be proceeded against
under the bankruptcy laws, or entitled, on his voluntary application, to take the benefit of such
laws. See Bankruptcy Act July 1, 1898, c. 541, §
1, 30 Stat. 544 (11 USCA § 1).
BANKRUPT LAW. A law for benefit and relief
of creditors and their debtors in cases in which
the latter are unable or unwilling to pay their
debts. Campbell v. Alleghany Corporation, C.C.
A.Md., 75 F.2d 947, 951.
A bankrupt law is distinguished from the ordinary law
between debtor and creditor, as involving these three general principles : (1) A summary and immediate seizure of
all the debtor's property; (2) a distribution of it among
the creditors in general, instead of merely applying a portion of it to the payment of the individual complainant;
and (3) the discharge of the debtor from future liability
for the debts then existing.
The leading distinction between a bankrupt law and an
insolvent law, in the proper technical sense, consists in the
character of the persons upon whom it is designed to operate,—the former contemplating as its objects bankrupts
only, that is, traders of a certain description; the latter;
insolvents in general, or persons unable to pay their debts.
This has led to a marked separation between the two systems, in principle and in practice, which in England has
always been carefully maintained, although in the United
States it has of late been disregarded. A bankrupt law,
moreover, in its proper sense, is a remedy intended primarily for the benefit of creditors; it is set In motion at
their instance, and operates upon the debtor against his
will, (in invitum,) although in its result it effectually discharges him from his debts. An insolvent law, on the
other hand, is chiefly intended for the benefit of the debtor, and' is set in motion at his instance, though possibly
less effective as a discharge in its final result. Sturges
v. Crowninshield, 4 Wheat. 194, 4 L.Ed. 529; Vanuxen v.
Hazlehursts, 4 N.J.Law, 192, 7 Am.Dec. 582; Adams v.
Storey, 1 Paine, 79, 1 Fed.Cas. 142; Kunzler v. Kohaus, 5
Hill (N.Y.) 317.
The only substantial difference between a strictly bankrupt law and an insolvent law lies in the circumstance that
the former affords relief upon the application of the creditor, and the latter upon the application of the debtor.
Martin v. Berry, 37 Cal. 222.
BANKRUPTCY. The state or condition of one
who is a bankrupt; amenability to the bankrupt
laws; the condition of one who has committed
an act of bankruptcy, and is liable to be proceeded
against by his creditors therefor, or of one whose
circumstances are such that he is entitled, on his
voluntary application, to take the benefit of the
bankrupt laws.
The term is used in a looser sense as synonymous with "insolvency,"—inability to pay one's
debts; the stopping and breaking up of business
because the trader is broken down, insolvent,
ruined. Phipps v. Harding, C.C.A.Wis., 70 Fed.
468, 17 C.C.A. 203, 30 L.R.A. 513.
It constitutes a branch of equity jurisprudence. In re
Flour Mills of America, D.C.Mo., 27 F.Supp. 559, 560.
Its purpose is to secure finally to creditors distribution of
value of at least part of debtor's assets and to bankrupt
discharge from his debts, to end that creditors may be
paid as much as may be and that bankrupt may have new
start in life. In re Jones, D.C.Mo., 10 F.Supp. 165, 167.
Insolvency means a simple inability to pay as debts
should become payable, whereby the debtor's business
would be broken up; bankruptcy means the particular legal status, to be ascertained and declared by a judicial decree. In re Black, 2 Ben. 196, Fed.Cas.No.1,457.
The proceedings taken under the bankrupt law,
against a person (or firm or company) to have
186
BAR
him adjudged a bankrupt, and to have his estate
administered for the benefit of the creditors, and
divided among them. That branch of jurisprudence, or system of law and practice, which is concerned with the definition and ascertainment of
acts of bankruptcy and the administration of
bankrupts' estates for the benefit of their creditors and the absolution and restitution of bankrupts.
Act of Bankruptcy. See Act.
Adjudication of Bankruptcy
The judgment or decree of a court having jurisdiction, that a person against whom a petition in
bankruptcy has been filed, or who has filed his
voluntary petition, be ordered and adjudged to be
a bankrupt.
Bankruptcy Courts. Courts for the administration of the bankrupt laws.
Bankruptcy Proceedings
This term includes all proceedings in a federal
court having jurisdiction in bankruptcy, founded
on a petition in bankruptcy and either directly
or collaterally involved in the adjudication and
discharge of the bankrupt and the collection and
administration of his estate. Kidder v. Horrobin,
72 N.Y. 167. See, also, Proceedings in bankruptcy.
Steps in administration of estate in bar kruptcy
court within summary jurisdiction of bankruptcy
court. (Bankr.Act, § 24a, b, 11 U.S.C.A. § 47(a)
(b). Childs v. Ultramares Corporation, C.C.A.
N.Y., 40 F.2d 474, 477.
Controversies Arising in Bankruptcy Proceedings. See Proceedings in bankruptcy.
Extension. See Extension.
Involuntary Bankruptcy. See Voluntary bankruptcy, infra.
Voluntary Bankruptcy
Bankruptcy (in the sense of proceedings taken
under the bankruptcy law) is either voluntary or
involuntary; the former where the proceeding
is initiated by the debtor's own petition to be adjudged a bankrupt and have the benefit of the
law. In re Murray, D.C.Iowa, 96 F. 600; Metsker
v. Bonebrake, 2 Sup.Ct. 351, 108 U.S. 66, 27 L.Ed.
654, the latter where he is forced into bankruptcy
on the petition of a sufficient number of his creditors.
See Bankrupt; Bankrupt Law.
BANLIEU, or BANLIEUE. In French and Canadian law. The same as banleuca (q. v.).
BANNER. A small flag bearing a device or symbol and intended to be carried or waved. L.R. 2
P.C. 387. The term includes a canvas, parti-colored or bearing party words and stretched across
a street. 4 O'M. & H. 179.
BANNERET.• See Baneret.
BANNI, or BANNITUS. In old law, one under a
ban, (q. v.;) an outlaw or banished man. Britt.
cc. 12, 13; Calvin.
BANNI NUPTIARUM. L. Lat. In old English
law. The bans of matrimony.
BANNIMUS. Lat. We ban or expel. The form
of expulsion of a member f r om the University of
Oxford, by affixing the sentence in some public
places, as a promulgation of it. Cowell.
BANNIRE AD PLACITA, AD MOLENDINUM.
To summon tenants to serve at the lord's courts,
to bring corn to be ground at his mill.
BANNITIO. Banishment; expulsion by a ban
or public proclamation. Adams Gloss.
BANNITUS. See Banni.
BANNS OF MATRIMONY. Public notice or proclamation of a matrimonial contract, and the intended celebration of the marriage of the parties
in pursuance of such contract. Cowell; 1 Bla.
Comm. 439; Pothier, Du Man age p. 2, c. 2.
Such announcement is required by the English law to
be made in a church or chapel, during service, on three
consecutive Sundays before the marriage is celebrated.
The object is to afford an opportunity for any person to
interpose an objection if he knows of any impediment or
other just cause why the marriage should not take place.
The publication of the banns may be dispensed with by
procuring a special license to marry.
]ANNUM. A ban (q. v.).
BANNUS. In old English law. A proclamation.
Bannus regis; the king's proclamation, made by
the voice of a herald, forbidding all present at the
t r ial by combat to interfere either by motion or
word, whatever they might see or hear. Bract.
fol. 142.
BANQUE. Fr. A bench; the table or counter of
a trader, merchant, or banker. Banque route;
a broken bench or counter; bankrupt.
BANS OF MATRIMONY. See Banns of Matrimony.
Bankruptcy Rule
Allows claim only for amount of debt, less value
of security. In re Baker, 333 Pa. 273, 3 A.2d 785,
786.
BANYAN. In East Indian law. A Hindoo merchant or shop-keeper. The word is used in Bengal
to denote the native who manages the money concerns of a European, and sometimes serves him
as an interpreter.
BANLEUCA. (Same as the French banlieue).
An old law term, signifying a space or tract of
country around a city, town, or monastery, distinguished and protected by peculiar privileges.
Spelman.
BAR. A partition or railing running across a
court-room, intended to separate the general
public from the space occupied by the judges,
counsel, jury, and others concerned in the trial
of a cause. In the English courts it is the parti187
BAR
tion behind which all outer-barristers and every
member of the public must stand. Solicitors,
being officers of the court, are admitted within it;
as are also queen's counsel, barristers with patents of precedence, and serjeants, in virtue of
their ranks. Parties who appear in person also
are placed within the bar on the floor of the court.
A particular part of the court-room; for example, the place where prisoners stand at their trial,
hence the expression "prisoner at the bar."
The court, in its strictest sense, sitting in full
term. The presence, actual or constructive, of the
court. Thus, a trial at bar is one had before the
full court, distinguished from a trial had before a
single judge at nisi prius. So the "case at bar" is
the case now before the court and under its consideration; the case being tried or argued.
In another sense, the whole body of attorneys
and counsellors, or the members of the legal profession, collectively, who are figuratively called
the "bar," from the place which they usually occupy in court. They are thus distinguished from
the "bench," which term denotes the whole body
of judges.
In the practice of legislative bodies, the outer
boundary of the house; therefore, all persons,
not being members, who wish to address the
house, or are summoned to it, appear at the bar
for that purpose.
In the law of contracts, an impediment, obstacle, or preventive barrier. Thus, relationship within the prohibited degrees is a bar
to marriage. In this sense also we speak of the "bar of
the statute of limitations."
That which defeats, annuls, cuts off, or puts an
end to.
Thus, a provision "in bar of dower" is one which has
the effect of defeating or cutting off the dower-rights
which the wife would otherwise become entitled to in the
particular land.
In pleading, a special plea, constituting a sufficient answer to an action at law; so called because it barred, i. e., prevented, the plaintiff from
further prosecuting it with effect, and, if established by proof, defeated and destroyed the action altogether. Now called a special "plea in
bar." It may be further described as a plea or
peremptory exception of a defendant to destroy
the plaintiff's action. City of San Antonio v. Johnson, Tex.Civ.App., 186 S.W. 866. See Plea in bar.
A barrier or counter over which liquors and
food are passed to customers, hence the portion of
the room behind the counter where the liquors for
sale are kept. Hinton v. State, 137 Tex.Cr.R. 352,
129 S.W.2d 670, 673.
BAR ASSOCIATION. An association of members
of the bar. Such associations have been organized
in most states. The first was in Mississippi in
1825, but it is not known to have had a continued
existence. An association of Grafton and Coos
counties in New Hampshire had an existence
before 1800, and probably a more or less continuous life since then, having finally merged into a
state association. Similar associations exist in
many of the counties in various states.
—Bar integration. See Integrated
Bar,
BAR FEE, In English law. A fee taken by the
sheriff, time out of mind, for every prisoner who
is acquitted. Bac.Abr. "Extortion." Abolished by
St. 14 Geo. III. c. 26; 55 Geo. III. c. 50; 8 & 9
Vict. c. 114.
place where intoxicating liquors
are sold to be drunk on the same premises. City
of Spokane v. Baughman, 103 P. 14, 17, 54 Wash.
315.
A room containing a bar or counter at which
liquors are sold, or a room with a bar where
liquors and refreshments are served. Mustard
v. Elwood, C.C.A.Alaska, 223 F. 225, 226.
BAR ROOM. A
The words "bar" and "bar room" have a more restrictive meaning than "saloon," and mean a place from which
intoxicating liquors are to be sold. Greil Bros. Co. v.
Mabson, 179 Ala. 444, 60 So. 876, 877, 43 L.R.A.,N.S., 664.
BAR SINISTER. A term popularly though erroneously used for baton, a mark of illegitimacy.
Webster.
BARAGARIA. Span. A concubine, whom a man
keeps alone in his house, unconnected with any
other woman. Las Partidas, pt. 4, tit. 14.
BARAT. See Berat,
BARATRIAM COMMITTIT QUI PROPTER PECUNIAM JUSTITIAM BARACTAT. He is guilty
of barratry who for money sells justice. Bell.
(This maxim, however, is one pertaining more to
the meaning of "barratry" as used in Scotch law
than to its common-law meaning. See Barratry.)
BARBANUS. In old Lombardic law. An uncle,
(patruus.)
BARBAROUS. As used in a divorce statute, it
implies a merciless and savage disposition, taking
pleasure in suffering, without pity, and with an
evil and malicious will. Hansell v. Hansell, 15
Pa.Co.Ct.R., 514, 515.
BARBER. One who makes a business of shaving
and trimming beards and cutting and dressing
hair. Dellacorte v. Gentile, 98 N.J.Eq. 194, 129 A.
739, 740.
The term has been held to include a woman, who, being
employed in a beauty parlor serving women customers exclusively, cut a woman's hair in the style of bobbed hair.
State v. Leftwich, 142 Wash. 329, 253 P. 448, 449, 59 A.L.R.
539. But it has also been thought that the proprietor of a
"hairdressing and beauty parlor," the important features
of whose business included cutting hair, massaging, clipping hair with barber clippers, singeing the hair, giving
tonics, shampooing, and manicuring, but not shaving the
face, was not a "barber" within a statute subjecting barbers to examination and regulation. Keith v. State Barber
Board, 112 Kan. 834, 212 P. 871, 872, 31 A.L.R. 432.
In England in former times, barbers also practiced surgery and dentistry, but by 32 Hen. VIII, c. 42, barbers, although they were thereby incorporated with the surgeons
of London, were not to practice surgery, except the drawing of teeth.
BARBICANAGE. In old European law. Money
paid to support a barbican or watchtower.
188
BARNARD'S
BARGAIN AND SALE. In conveyancing. The
transferring of the property of a thing from one
to another, upon valuable consideration, by way
of sale. Shep.Touch. (by Preston,) 221.
A contract or bargain by the owner of land, in
consideration of money or its equivalent paid, to
sell land to another person, called the "bargainee," whereupon a use arises in favor of the
latter, to whom the seisin is transferred by force
of the statute of uses. Laing v. McClung, 103 W.
Va. 341, 137 S.E. 744, 745.
BARBITTS. L. Fr. (Modern Fr. brebis.) Sheep.
BARE. Naked; without a covering; unaccompanied.
BARE OR MERE LICENSEE. One whose presence on premises is merely tolerated; while a
"licensee" or "invitee" is one who is on the premises by invitation, express or implied. Chicago,
R. I. & P. Ry. Co. v. McCleary, 175 Okl. 347, 53 P.2d
555, 557.
BARE PATENT LICENSE. A grant of authority
to make, use or vend patented product throughout
the United States or in a given part thereof, with
no right of exclusion. 35 U.S.C.A. § 47. Innis,
Speiden & Co. v. Food Machinery Corporation, D.
C.Del., 2 F.R.D. 261, 263.
The proper and technical words to denote a bargain and
sale are "bargain and sell ;" but any other words that are
sufficient to raise a use upon a valuable consideration are
sufficient. 2 Wood.Conv. 15; Jackson ex dem. Hudson v.
Alexander, 3 Johns. (N.Y.) 484, 3 Am.Dec. 517.
The expression "bargain and sale" is also applied to
transfers of personalty, in cases where there is first an executory agreement for the sale, (the bargain,) and then
an actual and completed sale.
BARE TRUSTEE. One whose trust is to convey,
and the time has arrived for a conveyance by him;
or a trustee to whose office no duties were originally attached, or who, although such duties were
originally attached to his office, would, on the requisition of his cestuis que trust, be compellable in
equity to convey the estate to them or by their
direction. Christie v. Ovington, 1 Ch.Div. 279, 281.
BARGAIN OR CONTRACT IN RESTRAINT OF
TRADE. Any bargain or contract which purports
to limit in any way right of either party to work
or to do business. Stoia v. Miskinis, 298 Mich.
105, 298 N.W. 469, 474.
BARGAINEE. The grantee of an estate in a
deed of bargain and sale. The party to a bargain to whom the subject-matter of the bargain or
thing bargained for is to go.
BAREBONES PARLIAMENT. A parliament summoned by Cromwell in 1653.
BARET. L. Fr. A wrangling suit. Britt. c. 92;
Co.Litt. 368b.
BARGAINOR. The person who makes a bargain.
The party to a bargain who is to receive the consideration and perform the contract by delivery
of the subject-matter.
BARGAIN. A mutual undertaking, contract, or
agreement.
A contract or agreement between two parties,
the one to sell goods or lands, and the other to
buy them. Bank v. Archer, 16 Miss. 192.
As a verb, to sell for cash, or on terms, rather
than to trade or exchange. In re Wellings' Estate, 197 Cal. 189, 240 P. 21, 24.
BARGE. Name originally applied to a small
sailing vessel but afterwards came into general
use for a flat bottomed boat used for carrying
goods on inland waterways. Barges are usually
towed or fitted with some kind of engine. The
Sakito Maru, D.C.Cal., 41 F.Supp. 769, 778.
"If the word 'agreement' imports a mutual act of two
parties, surely the word 'bargain' is not less significative
of the consent of two. In a popular sense, the former
word is frequently used as declaring the engagement of
one only. A man may agree to pay money or to perform
some other act, and the word is then used synonymously.
with 'promise' or 'engage.' But the word 'bargain' is seldom used, unless to express a mutual contract or undertaking." Packard v. Richardson, 17 Mass. 131, 9 Am.Dec.
123.
—Bargain money. These words in a contract for
the sale of land have much the same significance
as earnest money. Morgan v. Forbes, 236 Mass.
480, 128 N.E. 792, 793.
—Catching bargain. A bargain by which money is
loaned, at an extortionate or extravagant rate, to
an heir or any one who has an estate in reversion
or expectancy, to be repaid on the vesting of his
interest; or a similar unconscionable bargain with
such person for the purchase outright of his expectancy. See Edler v. Frazier, 174 Iowa, 46, 156
N.W. 182, 187. That kind of fraud often perpetrated upon young, inexperienced, or ignorant
people. Provident Life & Trust Co. v. Fletcher,
C.C.A.N.Y., 258 F. 583, 586.
See Unconscionable Bargain
BARK. It is sometimes figuratively used to denote the mere words or letter of an instrument,
or outer covering of the ideas sought to be expressed, as distinguished from its inner substance
or essential meaning. "If the bark makes for
them, the pith makes for us." Bacon.
BARLEYCORN. In linear measure. The third of
an inch.
BARMOTE COURTS. Courts held in certain mining districts belonging to the Duchy of Lancaster,
for regulation of the mines, and for deciding questions of title and other matters relating thereto.
3 Steph.Comm. 347, note b.
BARN. A covered building for securing productions of the earth. Washington v. Arizona, 46
Ariz. 446, 52 P.2d 476, 478.
It may be both a cornhouse and a stable; State v. Smith,
28 Iowa 565, 568; and has been used interchangeably with
stable; Saylor v. Commonwealth, 22 Ky.L.Rep. 472, 57 S.
W. 614, 615.
BARNARD'S INN. An inn of chancery. See Inns
of Chancery.
189
BARO
BARO. In old law, a man, whether slave or free.
In later usage, a freeman or freedman; a strong
man; a good soldier; a hired soldier; a vassal;
a baron; a feudal tenant or client. A man of dignity and rank; a knight. A magnate in the
church. A judge in the exchequer (baro scaccarii). The first-born child. A husband.
The word is said by Spelman to have been used more
frequently in the last sense; Spelman, Gloss.
BARON. A lord or nobleman; the most general
title of nobility in England. 1 Bl.Comm. 398, 399.
A particular degree or title of nobility, next to a
viscount. The lowest title in Great Britain. A
judge of the court of exchequer. 3 Bl.Comm. 44;
Cowell. A freeman. Co.Litt. 58a. Also a vassal
holding directly from the king. A husband; occurring in this sense in the phrase "baron et
feme," husband and wife.
The term has essentially the same meanings as Baro (q.
v.).
BARON COURT. See Court-Baron.
BARON ET FEME. Man and woman; husband
and wife. Spelman, Gloss.; 1 Bla.Comm. 442.
A wife being under the protection and influence of her
baron, lord, or husband, is styled a "feme-covert," (fcemina viro cooperta,) and her state of marriage is called
her "coverture." Cummings v. Everett, 82 Me. 260, 19 A.
456.
BARONS OF THE CINQUE PORTS. Members
bf parliament from these ports, viz.: Sandwich,
Romney, Hastings, Hythe, and Dover. Winchelsea and Rye have been added. See Cinque Ports.
BARONS OF THE EXCHEQUER. The six judges
of the court of exchequer in England, of whom one
is styled the "chief baron;" answering to the justices and chief justice of other courts.
BARONAGE. In English law. The collective
body of the barons, or of the nobility at large.
Spelman.
BARONES SCACCARII. See Barons of the Exchequer.
BARRATROUS. Fraudulent; having the character of barratry.
BARRATRY. In criminal law. Also spelled "Barretry." The offense of frequently exciting and
stirring up quarrels and suits, either at law or
otherwise. 4 Bla.Com. 134; State v. Batson, 220
N.C. 411, 17 S.E.2d 511, 512, 513.
Common barratry is the practice of exciting groundless
judicial proceedings. Pen.Code Cal. § 158; Lucas v. Pico,
55 Cal. 128; Corn. v. McCulloch, 15 Mass. 229; Ex parte
McCloskey, 82 Tex.Cr.R. 531, 199 S.W. 1101, 1102.
In maritime law. An act committed by the master or mariners of a vessel, for some unlawful or
fraudulent purpose, contrary to their duty to the
owners, whereby the latter sustain injury. It may
include negligence, if so gross as to evidence
fraud. Hansen v. Barnard, C.C.A.N.Y., 270 F.
163, 166.
Some fraudulent act of the master or mariners, tending
to their own benefit, to the prejudice of the owner of the
vessel, without his privity or consent. Kendrick v. Delafield, 2 Caines N.Y. 67.
A generic term, which includes many acts of various
kinds and degrees. It comprehends any unlawful, fraudulent, or dishonest act of the master or mariners, and every
violation of duty by them arising from gross and culpable
negligence contrary to their duty to the owner of the vessel, and which might work loss or injury to him in the
course of the voyage insured. A mutiny of the crew, and
forcible dispossession by them of the master and other
officers from the ship, is a form of barratry. Greene v.
Pacific Mut. Ins. Co., 9 Allen, Mass., 217.
In Scotch law. The crime committed by a judge
who receives a bribe for his judgment. Skene;
Brande.
See Champerty.
BARRED. Obstructed by a bar; subject to hindrance or obstruction by a bar or barrier which,
if interposed, will prevent legal redress or recovery; as, when it is said that a claim or cause of
action is "barred by the statute of limitations."
Wilson v. Knox County, 132 Mo. 387, 34 S.W. 45,
477.
Spelman; 2 Holdsw.Hist.Eng.L. 159.
BARREL. A measure of capacity, equal (in England) to 36 imperial gallons. The standard United
States measure, except as to barrels of petroleum,
equals 31 1/2 gallons. Pope v. Joschke, Tex.Civ.
App., 228 S.W. 986, 987.
In agricultural and mercantile parlance, as also in the inspection laws, the term means, prima
facie, not merely a certain quantity, but, further,
a certain state of the article; namely, that it is
in a cask. State v. Moore, 33 N.C. 72.
In Scotland, a large freehold estate, even
though the proprietor is not a baron. See Barony
of Land, infra.
BARREN MONEY. In the civil law. A debt
which bears no interest.
BARONET. An English name or hereditary title
of dignity or rank (but not a title of nobility, being next below that of baron), established in 1611
by James I. It is created by letters patent, and
descends to the male heir. Spelman.
BARONY. The dignity of a baron; a species of
tenure; the territory or lands held by a baron.
BARONY OF LAND. In England, a quantity of
land amounting to 15 acres. In Ireland, a subdivision of a county.
BARRENNESS. Sterility; the incapacity to bear
children.
BARRETOR. In criminal law. A common mover,
exciter, or maintainer of suits and quarrels either
in courts or elsewhere in the country; a disturber
of the peace who spreads false rumors and calBARRATOR. One who commits barratry. See
umnies, whereby discord and disquiet may grow
Barretor,
among neighbors. Co.Litt. 368.
190
BARRA, or BARRE. In old practice. A plea in
bar. The bar of the court. A barrister.
BASE
Common Barretor
One who frequently excites and stirs up groundless suits and quarrels, either at law or otherwise.
Mate v. Batson, 220 N.C. 411, 17 S.E.2d 511, 512,
513.
BARRETRY. In criminal law. The act or offense
of a barretor, (q. v.;) usually called "common
barretry." 4 Steph.Comm. 262. See Barratry.
BARRICADE. An obstruction or block to prevent
passage. Schawe v. Leyendecker, Tex.Civ.App.,
269 S.W. 864, 866; Crowley v. City of Raymond,
198 Wash. 432, 88 P.2d 858, 859.
BARRIER. A fence. Page Steel & Wire Co. v.
Smith Bros. Hardware Co., C.C.A.Ohio, 64 F.2d
512.
In mining law and the usage of miners, a wall of coal
left between two mines.
BARRISTER. In English law. An advocate; a
counsellor learned in the law who has been admitted to plead at the bar, and who is engaged in
conducting the trial or argument of causes.
To be distinguished from the attorney, who draws the
pleadings, prepares the testimony, and conducts matters
out of court. In re Rickert, 66 N.H. 207, 29 Atl. 559, 24 L.
R.A. 740.
See King's Counsel.
Inner Barrister
A serjeant or king's counsel who pleads within
the bar.
Junior Barrister
A barrister under the rank of queen's counsel.
Also the junior of two counsel employed on the
same side in a case. Mozley & Whitley.
Outer or Utter Barrister
One who pleads "outer" or without the bar.
Such barristers were so called because they sat "uttermost on the forms of the benchers which they call the
bar." 29 L.Q.R. 25. They are distinguished from benchers, or those who have been readers, and are allowed to
plead within the bar, as are the king's counsel.
This term is not applied to contracts .concerning land,
but to such only as relate to goods and chattels. Speigle
v. Meredith, 4 Biss. 123, Fed.Cas.No.13,227.
It sometimes signifies a corrupt transaction. In re Troy,
43 R.I. 279, 111 A. 723, 724.
BARTON. In old English law. The demesne land
of a manor; a farm distinct from the mansion.
Sometimes it is used for the manor house itself ; and in
some places for out houses and fold yards. In tifé statute2 & 3 Edw. 6, c. 12, Barton lands and demesne lands areused as synonymous. Cowell.
BAS. Fr. Low; inferior; subordinate.
BAS CHEVALIERS. In old English law. Low,
or inferior knights, by tenure of a base military
fee, as distinguished from barons and bannerets,
who were the chief or superior knights. Cowell;
Kennett, Paroch.Ant.; Blount.
BAS VILLE, In French law. The suburbs of a
town.
BASAL FRACTURE. A fracture of the skull beginning at the base of the skull to the rear and
left extending to the top of the skull. Marland
Refining Co. v. McClung, 102 Okl. 56, 226 P. 312,
313.
BASE, adj. Low; inferior; servile; of subordinate degree; impure, adulterated, or alloyed.
—Base animal. See Animal.
—Base bullion. Base silver bullion is silver in bars
mixed to a greater or less extent with alloys or
base materials. Hope Min. Co. v. Kennon, 3 Mont.
44.
—Base coin. Debased, adulterated, or alloyed
coin. Gabe v. State, 6 Ark. 540; Cohens v. Virginia, 6 Wheat. 333, 5 L.Ed. 257.
—Base court. In English law. An inferior court,
that is, not of record, as the court baron. Cunningham; Kitch. 95, 96; Cowell.
—Base estate. The estate which "base tenants"
(q. v.) have in their land. Cowell.
—Base fee. In English law. An estate or fee
which has a qualification subjoined thereto, and
which must be determined whenever the qualification annexed to it is at an end. 2 Bl.Comm. 109.
Vacation Barrister
Wiggins Ferry Co. v. Railroad Co., 94 Ill. 93; ScoA counsellor newly called to the bar, who is to
bey v. Beckman, 111 Ind.App. 574, 41 N.E.2d 847,
attend for several long vacations the exercises
850.
of the house.
It is a fee for the reason that it may last forever if the contingency does not happen, but deBART. The usual abbreviation for Baronet based because its duration depends upon collateral
(q. v.).
circumstances which qualify it. McIntyre v. Dietrich, 128 N.E. 321, 322, 294 Ill. 126; sometimes
BARTER. A contract by which parties exchange
called a conditional fee; Citizens' Electric Co. v.
goods or commodities for other goods. Finker v.
Susquehanna Boom Co., 113 A. 559, 561, 270 Pa.
Boyer, 331 Mo. 1242, 56 S.W.2d 372.
517; a determinable fee; Penick v. Atkinson, 77
S.E. 1055, 1057, 139 Ga. 649, 46 L.R.A.,N.S., 284,
It differs from sale, in this : that in the latter transaction goods or property are always exchanged for money.
Ann.Cas.1914B, 842; or a qualified fee; In re
Guerreiro v. Peile, 3 Barn. & Ald. 617; Cooper v. State, 37
Douglass' Estate, 143 N.W. 299, 302, 94 Neb. 280,
Ark. 418; Meyer v. Rousseau, 47 Ark. 460, 2 S. W. 112.
Ann.Cas.1914D, 447. Burche v. Neal, 149 S.E.
In a sale there is a fixed price; in a barter there is not.
Speigle v. Meredith, 4 Biss. 120, Fed.Cas.No.13,227.
611, 612, 107 W.Va. 559.
191
Utter Barrister
The same as "Outer barrister," supra.
BASE
—Base infeftment. In Scotch law. A disposition
of lands by a vassal, to be held of himself.
—Base right. In Scotch law. A subordinate
right; the right of a subvassal in the lands held
by him. Bell.
—Base services. In feudal law. Such services as
were unworthy to be performed by the nobler
men, and were performed by the peasants and
those of servile rank. 2 Bla.Comm. 62; 1 Washb.
R.P. 25.
—Base tenants. Tenants who performed to their
lords services in villenage; tenants who held at
the will of the lord, as distinguished from frank
tenants, or freeholders. Cowell.
—Base tenure. A tenure by villenage, or other
customary service, as distinguished from tenure
by military service; or from tenure by free service. Cowell.
BASE, n. Bottom, foundation, groundwork, that
on which a thing rests. Webster.
The locality on which a military or naval force
relies for supplies or from which it initiates operations. Webster. For example: air base; military base; marine base; naval base; submarine
base.
—Base Hospital. See Hospital.
—Air Base. A military or naval establishment
forming a center of supporting activities for the
military or naval air arm; a training center for
air corps personnel; a place where equipment and
supplies of the air corps are kept. The term is included in the word fort. Greenville Baseball v.
Bearden, 200 S.C. 363, 20 S.E.2d 813, 816.
—Submarine Base. A naval base for the housing,
repair and maintenance of submarines, for keeping supplies; a place where personnel is trained;
a place from which operations are initiated.
BASED UPON. Means an initial or starting point
for calculation. State ex rel. Snidow v. State
Board of Equalization, 93 Mont. 19, 17 P.2d 68.
BASEBALL. A game of skill within the criminal
offense of betting on such a game. Mace v. State,
58 Ark. 79, 22 S.W. 1108.
When played by professionals for profit, it is a performance of worldly employment and business within the Sunday Law of Pennsylvania. Commonwealth v. American
Baseball Club of Philadelphia, 290 Pa. 136, 138 A. 497, 53
A. L. R. 1027.
BASEMENT. A floor partly beneath the surface
of the ground but distinguished from a cellar by
being well lighted and fitted for living purposes.
In England the ground floor of a city house.
BASILEUS. A Greek word, meaning "king." A.
title assumed by the emperors of the Eastern Roman Empire. It is used by Justinian in some of
the Novels; and is said to have been applied to
the English kings before the Conquest. See 1 Bl.
Comm. 242.
BASILICA. The name given to a compilation of
Roman and Greek law, prepared about A.D. 880
by the Emperor Basilius, and published by his successor, Leo the Philosopher. It was written in
Greek, was mainly an abridgment of Justinian's
Corpus Juris, and comprised sixty books, only a
portion of which are extant. It remained the law
of the Eastern Empire until the fall of Constantinople, in 1453.
BASILS. In old English law. A kind of money or
coin abolished by Henry II.
BASIN. When speaking of a large river, ordinarily means or includes the entire area drained by
the main stream and its tributaries. City of
Tulsa v. Peacock, 181 Okl. 383, 74 P.2d 359, 360.
In admiralty law and marine insurance. A part
of the sea inclosed in rocks. U. S. v. Morel, 13
Am.Jur. 286, 26 Fed.Cas. 1,310.
BASIS. Fundamental principle; groundwork;
support; foundation; the foundation or groundwork of anything; that upon which anything may
rest or the principal component parts of a thing.
Tolmie v. San Diego Fruit & Produce Co., 57 Idaho
631, 68 P.2d 61, 64. State v. Kansas City & M.
Ry. & Bridge Co., 106 Ark. 248, 153 S.W. 614, 616.
BASKET TENURE. In feudal law. Lands held
by the service of making the king's baskets.
BASOCHE. Fr. An association of the "Clercs du
Parlement" of Paris, supposed to have been instituted in 1302. It judged all civil and criminal matters that arose among the clerks and all actions
brought against them. Hist. for Ready Reference.
BASSA, BASSO, or BASSUS. L. Lat. Low. Adams Gloss.
BASSA TENURA. See Base Fee.
BASSE JUSTICE. In feudal law. Low justice;
the right exercised by feudal lords of personally
trying persons charged with trespasses or minor
offenses.
BASSET. A card game resembling faro. It was
invented in Venice, and was widely popular in
Europe from about 1650 to' 1800.
BASTARD. An illegitimate child; a child born
of an unlawful intercourse, and before the lawful
marriage of its parents. Pettus v. Dawson, 82
Tex. 18, 17 S.W. 714.
A child born after marriage, but under circumBASIC OR PIONEER PATENT. One discovered
stances which render it impossible that the husin new field and recognized by scientific world or
band of his mother can be his father. State v.
industry as startling, unexpected, and unprophesied. Northwest Engineering Corporation v. KeyColiton, 73 N.D. 582, 17 N.W.2d 546, 548, 549, 156
stone Driller Co., C.C.A.Wis., 70 F.2d 13, 16.
A.L.R. 1403.
192
BATTURE
A child is not a bastard if born after marriage, although
begotten before. 1 Bla.Com. 455, 456; 8 East, 210; State
v. Herman, 35 N.C. 502.
One begotten and born out of lawful wedlock. Ex parte
Newsome, 212 Ala. 168, 102 So. 216, 218.
This definition, which is substantially the same as Blackstone's, is open to the objection that it does not include
with sufficient certainty those cases where children are
born during wedlock but are not the children of the mother's husband.
Such children as are not born either in lawful wedlock
or within a competent time after its determination. In re
Paterson's Estate, 34 Cal.App.2d 305, 93 P.2d 825, 827.
One born of an illicit union. Civ.Code La. arts. 27, 197.
The term also includes a child born of parents while in a
state of slavery, inasmuch as the parents were under disability to contract marriage. Cole v. Taylor, 132 Tenn. 92,
177 S. W. 61, 65.
In Louisiana, "bastards," as distinguished from "natural
children," are illegitimate children who have not been acknowledged by their parents. "Natural children" are
those who have been acknowledged by both or either of
their parents. Briggs v. McLaughlin, 134 La. 133, 63 SO.
851, 852.
—Bastard eigne. In old English law. Bastard.
elder. If a child was born of an illicit connection, and afterwards the parents intermarried and
had another son, the elder was called bastard
eigne, or, as it is now spelled, aine, and the second
son was called puisne, or since born, or sometimes
he was called mulier puisne. 2 Bla.Comm. 248.
—Special bastard. One born of parents before
marriage, the parents afterward intermarrying.
3 Bl.Comm. 335.
By the civil and Scotch law, as well as by the statute law
prevailing in over half of the states of the Union, the child
would then be legitimated.
BASTARDA. A female bastard. Calvinus, Lex.;
Fleta, lib. 5, c. 5, § 40.
BASTARDIZE. To declare one a bastard, as a
court does. To give evidence to prove one a bastard. A mother (married) cannot bastardize her
child.
BASTARDUS NON POTEST HABERE ILEREDEM NISI DE CORPORE SUO LEGITIME PROCREATUM. A bastard can have no heir unless
it be one lawfully begotten of his own body. Tray.
Lat.Max. 51.
BASTARDUS NULLIUS EST FILIUS, AUT FILIUS POPULI. A bastard is nobody's son, or the
son of the people.
BASTARDY. The offense of begetting a bastard
child. The condition of a bastard. Dinkey v.
Com., 17 Pa. 129, 55 Am.Dec. 542.
BASTARDY PROCESS. The method provided by
statute of proceeding against the putative father
to secure a proper maintenance for the bastard.
BATABLE-GROUND. Land that is in controversy, or about the possession of which there is a
dispute, as the lands which were situated between
England and Scotland before the Union. Skene.
BATAILLE. In old English law. Battel; the
trial by combat or duellum.
BATH, KNIGHTS OF THE. See Knights of the
Bath.
BATIMENT. In French marine law. A vessel or
ship.
BATONNIER. The chief of the French bar in its
various centres, who presides in the council of discipline. Arg.Fr.Merc.Law, 546.
BATTEL. Trial by combat; wager of battel. See
Wager of Battel.
BATTERY. Any unlawful beating, or other
wrongful physical violence or constraint, inflicted
on a human being without his consent. Goodrum
v. State, 60 Ga. 511.
A willful and unlawful use of force or violence upon the
person of another. Long v. Rogers, 17 Ala. 540. An unlawiuLtauching of the person of another by the agre.agr
apasalf, or any otliEf-SUbstance—put in motion by him. Kirland v. State, 43 Ind. 153, 13 Am.Rep. 386; Commonwealth
v. Remley, 257 Ky. 209, 77 S.W.2d 784. The consummation
of an unlawful assault. State v. Hamburg, Del., 143 - A. 47,
a8. The sri •of another or of his clothes
or an' thi I • - che•to hi -rson • one in a de,
nsolent. or anzr y manner. Booher v. Trainer, 172 o.App.
376, 157 S.W. 848, 850; Commonwealth v. Gregory, 132 Pa.
Super. 507, 1 A.2d 501, 503.
p
The artnal off r to use force to th9 iniuri_aannther
person is assault; the use of it is battery,yantich always
includes an assa ; Thence the two terms are commonly
76-gBined n t e term "assault and battery." Harris v.
State, 15 Okl.Cr. 369, 177 P. 122, 123.
A surgical operation is a technical "battery" regardless
of its result, and is excusable only when there is express
or implied consent by the patient. Bonner v. Moran, 126
F.2d 121, 122, 75 U.S.App.D.C. 156, 139 A.L.R. 1366.
—Assault and Battery of a High and Aggravated
Nature. An unlawful act of violent injury to the
person of another, accompanied by circumstances
of aggravation, such as the use of deadly weapon,
great disparity between the ages and physical
conditions of the parties, or the purposeful infliction of shame and disgrace. State v. Jones, 133
S.C. 167, 130 S.E. 747, 751.
—Simple Battery. One not accompanied by circumstances of aggravation, or not resulting in
grievous bodily injury.
BATTONIER. In French and Canadian law. A
member of the bar selected as the head of the
bar.
BATTURE. According to Richelet and the French
Academy,
a marine term, used to denote a bottom
It is of a special character in nature of civil action. In
of sand, stone, or rock, mixed together, and rising
re Mitchell, 189 Okl. 51, 113 P.2d 979, 980.
towards the surface of the water; as a technical
word and also in common parlance, an elevation
BASTON. In old English law, a baton, club, or
of the bed of a river, under the surface of the wastaff. A term applied to officers of the wardens
of the prison called the "Fleet," because of the
ter. The term is, however, sometimes used to destaff carried by them. Cowell; Spelman; Termes
note the same elevation of the bank, when it has
de la Ley. See Justices of Trail-Baston.
risen above the surface of the water, or is as high
Black's Law Dictionary Revised 4th Ed.-13
193
BATT'URE
as the land on the outside of the bank. Conkey v.
Knudsen, 143 Neb. 5, 8 N.W.2d 538, 541.
In this latter sense it is synonymous with "alluvion."
It means, in common-law language, land formed by accretion. Producers' Oil Co. v. Hanszen, 132 La. 691, 61 So.
754.
The term is used in Louisiana, and is applied principally
to certain portions of the bed of the Mississippi river which
are uncovered at time of low water but are covered annually at time of ordinary high water. Boyce Cottonseed Oil
Mfg. Co. v. Board of Com'rs of Red River, Atchafalaya &
Bayou Bceuf Levee Dist., 160 La. 727, 107 So. 506, 508.
BAUXITE. An earth containing aluminum in sufficient quantities to make it worth working for
the extraction of alumina. American Bauxite Co.
v. Board of Equalization of Saline County, 119
Ark. 362, 177 S.W. 1151, 1152. United States v.
Aluminum Co. of America, D.C.N.Y., 44 F.Supp.
97, 109.
BAWD. One who procures opportunities for persons of opposite sexes to cohabit in an illicit manner; who may be, while exercising the trade of
a bawd, perfectly innocent of committing in his
or her own proper person the crime either of
adultery or of 'fornication. See Dyer v. Morris, 4
Mo. 216.
BAWDY-HOUSE. A house of ill fame; a house of
prostitution; a brothel. A house or dwelling
maintained for the convenience and resort of persons desiring unlawful sexual connection. Davis
v. State, 2 Tex.App. 427; State v. Porter, 38 Ark.
638; People v. Buchanan, 1 Idaho 689. An assignation house. State v. Bragg, Mo.App., 220
S.W. 25, 26. A disorderly house. Putman v.
State, 9 Okl.Cr. 535, 132 P. 916, 921, 46 L.R.A.,N.S.,
593.
To constitute a bawdy-house, the house must be "resorted to" or "frequented," that is to say, used a number of
times, by lewd people of both sexes. State v. Seba, Mo.
App., 200 S.W. 300; but need not be inhabited or resorted
to by more than one woman for purpose of prostitution.
Trent v. Commonwealth, 181 Va. 338, 25 S.E.2d 350, 351.
BAY. A pond-head made of a great height to keep
in water for the supply of a mill, etc., so that the
wheel of the mill may be turned by the water
rushing thence, through a passage or flood-gate.
St. 27 Eliz. c. 19. (This is generally called a forebay.)
A bending or curving of the shore of the sea
or of a lake, so as to form a more or less inclosed
body of water. State v. Town of Gilmanton, 14
N.H. 477. An opening into the land, or an arm
of the sea, where the water is shut in on all sides
except at the entrance. Mayo v. New York Cent.
R. Co., 263 N.Y. 277, 189 N.E. 217, 218.
BAYGALL. A low-lying wet land matter with
vegetable fibres and often with gallberry and other thick-growing bushes. McNeal v. Carter, 191
Ga. 441, 12 S.E.2d 332, 333.
BAY WINDOW. A window projecting from the
wall of a building so as to form a recess or bay
within, and, properly speaking, rising from the
ground or basement, with straight sides only;
but the term is also ordinarily applied to such
projecting windows with curved sides, properly
called bow windows, and also to projecting windows supported from the building, above the
ground, properly called oriel windows. Hieronimus v. Moran, 272 Ill. 254, 111 N.E. 1022, 1023.
BAYLEY. In old English law. Bailiff. This term
is used in the laws of the colony of New Plymouth, Mass., A.D. 1670, 1671. Burrill.
BAYOU. A species of creek or stream common in
Louisiana and Texas. An outlet from a swamp,
pond, or lagoon, to a river, or the sea. See Surgett
v. Lapice, 8 How. 48, 70, 12 L.Ed. 982.
BEACH. This term, in its ordinary signification,
when applied to a place on tide waters means the
space between ordinary high and low water mark;
East Hampton v. Kirk, 6 Hun (N.Y.) 257; or the
space over which the tide usually ebbs and flows.
It is a term not more significant of a sea margin
than "shore." Niles v. Patch, 13 Gray (Mass.)
257; Hodge v. Boothby, 48 Me. 68.
In common parlance designates that portion of shore
consisting generally of sand and pebbles, resulting usually
from the action of water, as distinct from the upland, to
which it often extends above normal high-water mark.
Borden v. Town of Westport, 112 Conn. 152, 151 A. 512,
515.
Beach is synonymous with "shore," "strand," or "flats."
Littlefield v. Littlefield, 28 Me. 180.
The term may also include the sandy shore above mean
high
water which is washed by storms and exceptionally
hi g h tides. Newkirk v. Sherwood, 94 A. 982, 984, 89 Conn.
598.
To "beach" a ship is to run it upon the beach
or shore; this is frequently found necessary in
case of a fire, leak, etc.
See Foreshore; Sea-Shore.
Public Beach
One left by the state or others claiming it open
to the common use of the public, which the unorganized public and each of its members have a
right to use while it remains such. Brower v.
Wakeman, 88 Conn. 8, 89 A. 913, 914.
BEACON. A light-house, or sea-mark, formerly
used to alarm the country, in case of the approach
of an enemy, but now used for the guidance of
ships at sea, by night, as well as by day.
BEACONAGE. Money paid for the maintenance
of a beacon or signal-light. Comyns, Dig. Navigation (H).
BEADLE. In English ecclesiastical law. An inferior parish officer, who is chosen by the vestry,
and whose business is to attend the vestry, to give
notice of its meetings, to execute its orders, to
attend upon inquests, and to assist the constables.
Wharton. See, also, Bedel.
BEAMS AND BALANCE. Instruments for weighing goods and merchandise.
BEAR. To support, sustain, or carry; to give
rise to, or to produce, something else as an incident or auxiliary. See Stevenson v. Mellor, 252
Pa. 219, 97 A. 393, 394; to render, to manage, or
direct, or to conduct; to carry on, or maintain ;
194
BED
to be answerable for, and to defray. Teeter v.
Mid-West Enterprise Co., 174 Okl. 644, 52 P.2d 810,
812.
BEAR ARMS. To carry arms as weapons and
with reference to their military use, not to wear
them about the person as part of the dress. Aymette v. State, 2 Humph. (Tenn.) 158.
As applied to fire-arms, includes the right to load and
shoot them, and to use them as such things are generally
used. Hill v. State, 53 Ga. 480.
BEAR INTEREST. To generate interest, so that
the instrument or loan spoken of shall produce or
yield interest at the rate specified by the parties or
granted by law. Slaughter v. Slaughter, 21 Ind.
App. 641, 52 N.E. 995.
BEARER. One who bears, carries, or holds a
thing. Defined by the Negotiable Instruments
Act as the person in possession of a bill or note
which is payable to bearer. Miller v. People's Say.
Bank, 193 Mo.App. 498, 186 S.W. 547, 550.
When a check, note, draft, etc., is payable to "bearer,"
it imports that the contents thereof shall be payable to
any person who may present the instrument for payment.
Thompson v. Perrine, 106 U.S. 589, 1 S.Ct. 564, 568, 27 L.
Ed. 298.
BEARERS. In old English law. Such as bear
down or oppress others; maintainers. Cowell.
BEARING DATE. Disclosing a date on its face;
having a certain date. Words frequently used in
pleading and conveyancing to introduce the date
which has been put upon an instrument. See 2
Greenl.Ev. § 160; 2 Dowl. & L. 759.
BEAST. An animal; a domestic animal; a quadruped, such as may be used for food or in labor
e. g., a cow; Taylor v. State, 6
or for sport;
Humph. (Tenn.) 285; a horse; Winfrey v. Zimmerman, 8 Bush (Ky.) 587; and a hog; State v.
Enslow, 10 Iowa, 115; but a dog was held not to
be; U. S. v. Gideon, 1 Minn. 292 (Gil. 226) ; but see
Morewood v. Wakefield, 133 Mass. 241.
BEASTS OF THE CHASE. In English law.
Properly, the buck, doe, fox, martin, and roe, but
in a common and legal sense extending likewise
to all the beasts of the forest, which beside the
others are reckoned to be the hind, hare, bear,
and wolf, and, in a word, all wild beasts of y enery or hunting. Co.Litt. 233; 2 Bla.Comm. 39.
BEASTS OF THE FOREST. In English law. The
hart, hind, hare, boar, and wolf. Co.Litt. 233a.
See Beasts of the Chase.
BEASTS OF THE PLOW. An old term for animals employed in the operations of husbandry,
including horses. Somers v. Emerson, 58 N.H.
49.
BEASTS OF THE WARREN. In English law.
Hares, coneys, and roes. Co.Litt. 233; 2 Bla.
Comm. 39.
BEASTGATE. In Suffolk, England, imports land
and common for one beast. Bennington v. Goodtitle, 2 Strange, 1084; Rosc.Real Act. 485.
BEAT, v. To strike 'or hit repeatedly, as with
blows. Regina v. Hale, 2 Car. & K. 327; Com.
v. McClellan, 101 Mass. 35; Corn. v. McClellan,
101 Mass. 35.
In the criminal law and the law of torts, with
reference to assault and battery, the term includes any unlawful physical violence offered to
another. See Battery.
To beat, in a legal sense, is not merely to whip, wound,
or hurt, but includes any unlawful imposition of the hand
or arm. Goodrum v. State, 60 Ga. 511; Yarbrough v. State,
17 Ga.App. 828, 88 S.E. 710, 711.
BEAT, n. In some of the southern states (as Alabama, Mississippi, South Carolina) the principal
legal subdivision of a county, corresponding to
towns or townships in other states; or a voting
precinct. Eaton v. State, 20 Ala.App. 110, 101 So.
94, 95.
BEATING OF THE BOUNDS. An ancient custom in England by which, once a year, the minister, etc., of a parish walked about its boundaries
to preserve a recollection of them. Cent.Dict.
(Perambulation).
BEAUPLEADER. (L. Fr. fair pleading). A writ
of prohibition directed to the sheriff or another,
directing him not to take a fine for beaupleader.
There was anciently a fine imposed called a fine for
beaupleader, which is explained by Coke to have been originally imposed for bad pleading. Coke, 2d Inst. 123. The
statute of Marlebridge (52 Hen. III.) c. 11, enacts, that
neither in the circuit of justices, nor in counties, hundreds, or courts-baron, any fines shall be taken for fair
pleading; namely, for not pleading fairly or aptly to the
purpose. Upon this statute this writ was ordained, directed to the sheriff, bailiff, or him who shall demand the fine;
and it is a prohibition or command not to do it. Cowell;
Co. 2d Inst. 122; Crabb, Eng.Law 150.
BEAUTY CULTURE. Generally, the means employed to improve personal appearance, is an
occupation operating directly on the person. Hoff
v. State, Del.Super., 197 A. 75, 78, 81.
BECAUSE OF. For. Kelly v. State Personnel
Board of California, 31 Cal.App.2d 443, 88 P.2d
264, 266.
BECAUSE OF EMPLOYMENT. In this phrase
as used in the Workmen's Compensation Act, excepting an employer from liability for the willful
act of a third person directed against an employee
because of his employment, the words "because
of" are not synonymous with "caused by" but with
"on account of," or "by reason of." Saucier's
Case, 122 Me. 325, 119 A. 860, 861.
BECOME. To pass from one state to another;
to enter into some state or condition.
Hence one who is a member of a particular organization
at the time of the enactment of a statute making it a felony to "become" a member of such an organization cannot
be said to be within the purview of the act. State v.
Laundy, 103 Or. 443, 204 P. 958, 963.
BED. The hollow or channel of a water course;
the depression between the banks worn by the
regular and usual flow of the water.
Soil only which the water occupies sufficiently
long and continuously to wrest it from vegetation
195
BED
and destroy its value for agricultural purposes.
State ex rel. O'Connor v. Sorenson, 271 N.W. 234,
236, 222 Iowa 1248.
BEDEWERI. Those which we now call banditti;
profligate and excommunicated persons. Cunningham.
The land that is covered by the water in its ordinary low
stage. Wemple v. Eastham, 150 La. 247, 90 So. 637, 638.
That portion of its soil which is alternately covered and
left bare as there may be an increase or diminution in the
supply of water, and which is adequate to contain it at
its average and mean state during an entire year. Maufrais v. State, 142 Tex. 559, 180 S.W.2d 144, 147.
Area extending between the opposing banks measured
from the foot of the banks from the top of the water at its
ordinary stage, including sand bars which may exist
between the foot of said banks as thus defined. Town of
Refugio v. Heard, Tex.Civ.App., 95 S.W.2d 1008, 1010.
It includes the lands below ordinary high water mark.
United States v. Chicago, M., St. P. & P. R. Co., 61 S.Ct.
772, 775, 312 U.S. 592, 313 U.S. 543; 85 L. Ed. 1064.
Bed of navigable lake extends to high water mark. Miami Corporation v. State, 186 La. 784, 173 So. 315.
BEDLAM. A corruption of Bethlehem. The hospital of St. Mary of Bethlehem in London, originally a priory, founded about 1247, but used from
about 1400 as an asylum for the insane.
Also, the right of cohabitation or marital intercourse; as in the phrase "divorce from bed and
board," or a mensa et thoro.
BED OF JUSTICE. In old French law. The seat
or throne upon which the king sat when personally present in parliament; hence it signified the
parliament itself.
BED-ALE or BID-ALE. A friendly assignation
for neighbors to meet and drink at the house of
newly married persons or other poor , people and
then for the guests to contribute to the housekeepers. Cowell. See Bidal.
BEDDING. Covers practically everything, that is
to say, mattresses, springs, cots, couches, quilts,
cushions, and also the bed itself. Baltimore Bedding Corporation v. Moses, 182 Md. 229, 34 A.2d
338, 340.
BEDEHOUSE. A hospital or almshouse for bedesmen or poor people who prayed for their founders
and benefactors. Cunningham.
BEDEL, In English law. A crier or messenger
of court, who summons men to appear and answer
thvrein. Cowell. A herald to make public proclamations. Cent. Dict.
An officer of the forest, similar to a sheriff's
special bailiff. Cowell.
A collector of rents for the king. Plowd. 199,
200.
An inferior officer in a parish or liberty, or in an
institution, such as the Blue Coat School in London.
A subordinate officer of a university who walked
with a mace before one of the officers on ceremonial occasions and performed other minor duties ordinarily. See Beadle.
BEDELARY. The jurisdiction of a bedel, as a
bailiwick is the jurisdiction of a bailiff. Co.Litt.
234b; Cowell.
BEDEREPE. A service which certain tenants
were anciently bound to perform, as to reap their
landlord's corn at harvest. Said by Whishaw to
be still in existence in some parts of England.
Blount; Cowell; Whishaw,
BEEF. Used frequently to mean an animal of the
cow species and not beef prepared for market.
A beef or one beef is an expression frequently
used to designate an animal fit for use as beef, instead of designating it as a steer, a heifer, an ox,
or a cow. Davis v. State, 40 Tex. 135.
BEER. A liquor compounded of malt and hops,
differing from ales, not so much in its ingredients
as in its processes of fermentation.
A brewed liquor made of grain, especially barley, flavored with hops, which has undergone fermentation and
contains alcohol. State v. Lynch, 5 Boyce (Del.) 569, 96 A.
32. An alcoholic beverage resulting from the fermentation
of cereals or other starchy substances. U. S. v. Standard
Brewery, D.C.Md., 260 F. 486, 487.
In its ordinary sense, it denotes a beverage which is intoxicating; Moffitt v. People, 59 Colo. 406, 149 P. 104, 107;
Hoskins v. Commonwealth, 171 Ky. 204, 188 S.W. 348, 349;
and is within the fair meaning of the words "strong or
spirituous liquors," used in the statutes on this subject.
Maier v. State, 2 Tex.Civ.App. 296, 21 S.W. 974.
But also held that "liquor," in common parlance, does
not ordinarily mean "beer." Lea v. State, 181 S.W.2d
351, 353, 181 Tenn. 378.
Any liquor, whether intoxicating or not, made by the
usual process of making beer, although fermentation is
arrested to reduce the percentage of alcohol. Brown v.
State, 17 Ariz. 314, 152 P. 578, 582.
BEER-HOUSE; BEER-SHOP. In English law. A
place where beer is sold to be consumed on the
premises; as distinguished from a "beer-shop,"
which is a place where beer is sold to be consumed
off the premises. 16 Ch.Div. 721.
BEFORE. Prior to; preceding. In the presence
of; under the official purview of; as in a magistrate's jurat, "before me personally appeared,"
etc. State v. Murnane, 172 Minn. 401, 215 N.W.
863.
Thus, an acknowledgment made to an officer over a
telephone wire by one who is not present with the officer,
is not an acknowledgment "before" the officer. Hutchinson v. State, 79 Fla. 157, 84 So. 151, 154.
In the absence of any statutory provision governing the
computation of time, the authorities are uniform that,
where an act is required to be done a certain number of
days or weeks before a certain other day upon which another act is to be done, the day upon which the first act
is done is to be excluded from the computation, and the
whole number of days or weeks must intervene before the
day fixed for doing the second act. Ward v. Walters, 63
Wis. 44, 22 N.W. 844.
When used as a preposition, does not indicate a period
of time as do the prepositions "for," "during," and
"throughout," but merely an event or act preceding in
time, or earlier than, or previously to, the time mentioned.
First Nat. Corporation v. Perrine, 43 P.2d 1073, 1077, 99
Mont. 454.
BEG. To solicit alms or charitable aid. The act
of a cripple in passing along the sidewalk and
silently holding out his hand and receiving money
from passers-by is "begging for alms," within the
196
BELLIGERENTS
meaning of a statute which uses that phrase.
In re Haller, 3 Abb.N.C.,N.Y., 65.
BEGA. A land measure used in the East Indies.
In Bengal it is equal to about a third part of an
acre.
BEGET. See Begotten.
BEGGAR. One who lives by begging charity, or
who has no other means of support than solicited
alms.
BEGIN. To originate; to come into existence; to
start; to institute; to initiate; to commence.
People ex rel. Northchester Corporation v. Miller,
31 N.Y.S.2d 586, 587, 263 App.Div. 83.
BEGOTTEN. "To be begotten" means the same
as "begotten," embracing all those whom the par;
ent shall have begotten during his life, quos procreaverit. Cox v. Newby, 85 S.E. 369, 370, 101
S.C. 193. The term is peculiarly and chiefly applicable to a father. Swain v. Bowers, 91 Ind.
App. 307, 158 N.E. 598, 601.
BEGUM. In India. A lady, princess, woman of
high rank.
BEGUN. In a statute providing that nothing contained in it should affect prosecutions "begun"
under any existing act, the word "begun" means
both those which have already been begun and
those which may hereafter be begun. Lang v.
U. S., C.C.A.Ill., 133 F. 201, 66 C.C.A. 255.
BEHALF. Benefit, support, defence, or advantage.
A witness testifies on "behalf" of the party who calls
him, notwithstanding his evidence proves to be adverse to
that party's case. Richerson v. Sternburg, 65 Ill. 274. See,
further, 12 Q.B. 693; 18 Q.B. 512.
BEHAVIOR. Manner of having, holding, or keeping one's self; manner of behaving, whether good
or bad; conduct; manners; carriage of one's
self, with respect to propriety and morals; deportment. Webster. State v. Roll, 1 Ohio Dec. 284;
Schneiderman v. United States, Cal., 63 S.Ct. 1333,
1340, 320 U.S. 118, 87 L.Ed. 1796.
Surety to be of good behavior is a larger requirement
than surety to keep the peace. Dalton, c. 122; 4 Burns,
Just. 355. See Good Behavior.
BEHETRIA. In Spanish law. Lands situated in
districts and manors in which the inhabitants had
the right to select their own lords.
BEHOOF. Use; benefit; profit; service; advantage. It occurs in conveyances, e. g., "to his and
their use and behoof." Stiles v. Japhet, 84 Tex.
91, 19 S.W. 450.
BEING STRUCK. Collision, or striking together
of two objects, one of which may be stationary.
Davilla v. Liberty Life Ins. Co., 114 Cal.App. 308,
299 P. 831, 834.
Latrobe v. J. H. Cross Co., D.C.Pa., 29 F.2d 210,
212. A conclusion arrived at from external sources
after weighing probability. Ex parte State ex
rel. Attorney General, 100 So. 312, 313, 211 Ala. 1.
Conviction of the mind, arising not from actual perception or knowledge, but by way of inference, or from evidence received or information derived from others.
A conviction of the truth of a given proposition or an alleged fact resting upon grounds insufficient to constitute
positive knowledge. Boone v. Merchants' & Farmers'
Bank, D.C.N.C., 285 F. 183, 191.
With regard to things which make not a very deep impression on the memory, it may be called "belief."
"Knowledge" is nothing more than a man's firm belief.
The difference is ordinarily merely in the degree; to be
judged of by the court, when addressed to the court; by
the jury, when addressed to the jury. Hatch v. Carpenter,
9 Gray (Mass.) 274.
Knowledge is an assurance of a fact or proposition founded on perception by the senses, or intuition; while "belief" is an assurance gained by
evidence, and from other persons. Brooks v. Sessoms, 47 Ga.App. 554, 171 S.E. 222, 224.
"Suspicion" is weaker than "belief," since suspicion
requires no real foundation for its existence. while "belief" is necessarily based on at least assumed facts. Pen.
Code, § 836, subd. 3. Cook v. Singer Sewing Mach. Co.,
32 P.2d 430, 431, 138 Cal.App. 418.
BELLIGERENCY. In international law. The
status of de facto statehood attributed to a body
of insurgents, by which their hostilities are legalized.
Before they can be recognized as belligerents they must
have some sort of political organization and be carrying on
what in international law is regarded as legal war. There
must be an armed struggle between two political bodies,
each of which exercises de facto authority over persons
within a determined territory, and commands an army
which is prepared to observe the ordinary laws of war.
Moore, Int. Law Dig. I, 196; Dana's Wheaton, note 15,
page 35; In re Jones, 71 W.Va. 567, 77 S.E. 1029, 45 L.R.
A.,N.S., 1030, Ann.Cas.1914C, 31.
Quality of being belligerent; status of a belligerent;
act or state of waging war ; warfare. Webster's New Int.
Diet.
BELLIGERENT. In international law. As an adjective, it means engaged in lawful war. As a
noun, it designates either of two nations which are
actually in a state of war with each other, as
well as their allies actively co-operating, as distinguished from a nation which takes no part in
the war and maintains a strict indifference as between the contending parties, called a "neutral."
U. S. v. The Ambrose Light, D.C.N.Y., 25 F. 412;
Johnson v. Jones, 44 Ill. 151, 92 Am.Dec. 159.
BELLIGERENTS. A body of insurgents who by
reason of their temporary organized government
are regarded as conducting lawful hostilities.
Also, militia, corps of volunteers, and others, who
although not part of the regular army of the
state, are regarded as lawful combatants provided
they observe the laws of war. See Ex parte Toscano, D.C.Cal., 208 F. 938. See, also, Belligerency.
Bello parta cedunt reipublic. Things acquired in
war belong or go to the state. 1 Kent, Comm. 101;
BELIEF. A conviction of the truth of a proposi- 5 C.Rob.Adm. 173, 181; The Joseph, 1 Gall. 558,
tion, existing subjectively in the mind, and induced
Fed.Cas.No.7,533. The right to all captures vests
primarily in the sovereign. A fundamental maxby argument, persuasion, or proof addressed to the
im of public law. Cited 2 Russ. & M. 56.
judgment. Keller v. State, 102 Ga. 506, 31 S.E. 92.
197
BELLUM
BELLUM. Lat. In public law. War. An armed
contest between nations; the state of those who
forcibly contend with each other. Jus belli, the
law of war.
BELONG. To appertain to; to be the property of.
Property "belonging" to a person has two general
meanings: (1) ownership; People ex rel. Gill v.
Lake Forest University, 367 Ill. 103, 10 N.E.2d 667,
671; and (2) less than ownership, i. e., less than
an unqualified and absolute title, such as the absolute right of user. City and County of San
Francisco v. McGovern, 28 Cal.App. 491, 152 P.
980, 984.
A road may be said with perfect propriety to belong to a
man who has the right to use it as of right although the
soil does not belong to him; 31 L.J.Ex. 227.
When used in public and private statutes, and especially
when used in reference to inhabitancy, the poor, etc., designates the place of a person's legal settlement, and not
merely his place of residence. City of Bridgeport v. Town
of Greenwich, 165 A. 797, 116 Conn. 537.
BELONGING. That which is connected with a
principal or greater thing; an appendage, an appurtenance; also ownership. Church of the Holy
Faith v. State Tax Commission, 39 N.M. 403, 48
P.2d 777, 779.
BENCHERS. In English law. Seniors in the
Inns of Court, intrusted with their government,
and usually, but not necessarily, king's counsel,
elected by co-optation, and having the entire management of the property of their respective inns.
BENE. Lat. Well; in proper form; legally;
sufficiently.
BENEDICTA EST EXPOSITIO QUANDO RES
REDIMITUR A DESTRUCTIONE. 4 Coke, 26.
Blessed is the exposition when anything is saved
from destruction. It is a laudable interpretation
which gives effect to the instrument, and does not
allow its purpose to be frustrated.
BENEFICE. In ecclesiastical law. In its technical sense, this term includes ecclesiastical preferments to which rank or public office is attached,
otherwise described as ecclesiastical dignities or
offices, such as bishoprics, deaneries, and the like;
but in popular acceptation, it is almost invariably
appropriated to rectories, vicarages, perpetual
curacies, district churches, and endowed chapelries. 3 Steph.Comm. 77.
"Benefice" is a term derived from the feudal law, in
which it signified a permanent stipendiary estate, or an
estate held by feudal tenure. 4 Bl.Comm. 107.
BELONGINGS. That which belongs to one;
property; possessions ;—a term properly used to
express ownership. In a will. Ford's Adm'r v.
Wade's Adm'r, 242 Ky. 18, 45 S.W.2d 818, 820.
BENEFICE. Fr. In French law. A benefit or
advantage, and particularly a privilege given by,
the law rather than by the agreement of the parties.
BELOW. In practice. Inferior; of inferior jurisdiction, or jurisdiction in the first instance. The
court from which a cause is removed for review
is called the "court below."
Preliminary; auxiliary or instrumental.
BENEFICE DE DISCUSSION. Benefit of discussion. The right of a guarantor to require that
the creditor should exhaust his recourse against
the principal debtor before having recourse to the
guarantor himself.
Bail to the sheriff is called "bail below," as being preliminary to and intended to secure the putting in of bail
above, or special bail. See Bail.
BENEFICE DE DIVISION. Benefit of division;
right of contribution as between co-sureties.
BENCH. A seat of judgment or tribunal for the
administration of justice; the seat occupied by
judges in courts; also the court itself, or the aggregate of the judges composing a court, as in the
phrase "before the full bench."
The judges taken collectively, as distinguished
from counsellors and advocates, who are called
the bar.
The term, indicating originally the seat of the judges,
came to denote the body of judges taken collectively, and
also the tribunal itself, as the King's Bench.
In English ecclesiastical law. The aggregate
body of bishops.
BENCH LEGISLATION. See Judge-made law
under the title Judge.
BENEFICE D'INVENTAIRE. A term which corresponds to the beneficium inventarii of Roman
law, and substantially to the English law doctrine
that the executor properly accounting is only liable to the extent of the assets received by him.
BENEFICIAIRE. The person in whose favor a
promissory note or bill of exchange is payable; or
any person in whose favor a contract of any description is executed. Arg.Fr.Merc.Law. 547.
BENEFICIAL. Tending to the benefit of a person; yielding a profit, advantage, or benefit; enjoying or entitled to a benefit or profit. This term
is applied both to estates (as a "beneficial interest") and to persons (as "the beneficial owner").
Kolb v. Landes, 277 M. 440, 115 N.E. 539, 541; In
re Williams' Will, 50 Mont. 142, 145 P. 957, 959.
BENCH WARRANT. Process issued by the
court itself, or "from the bench," for the attachBENEFICIAL OR BENEVOLENT ASSOCIAment or arrest of a person; either in case of conTION. A voluntary association for mutual assisttempt, or where an indictment has been found, or
ance in time of need and sickness, and for the
to bring in a witness who does not obey the subcare of families of deceased members. Lafferty
pcena. So called to distinguish it from a warrant,
issued by a justice of the peace, alderman, or com- v. Supreme Council Catholic Mut. Ben. Ass'n,
259 Pa. 452, 103 A. 280, 281; but also held to inmissioner. Oxford v. Berry, 204 Mich. 197, 170
clude incorporated organizations. State v. Texas
N.W. 83, 87,
198
BENEFICIUM
BENEFICIARY ASSOCIATION. See Beneficial
or Benevolent Association.
Mut. Life Ins. Co. of Texas, Tex.Civ.App., 51 S.W.
2d 405, 410.
Another name for a "benefit society;" "benevolent society," and "fraternal" or "friendly society." State v. Texas Mut. Life Ins. Co. of Texas,
Tex.Civ.App., 51 S.W.2d 405, 410.
BENEFICIARY HEIR. In the law of Louisiana.
One who has accepted the succession under the
benefit of an inventory regularly made. Civ.Code
La. art. 883. Also, one who may accept the succession with benefit of inventory. Succession of
Galiano, La.App., 195 So. 377, 379.
BENEFICIAL ENJOYMENT. The enjoyment
which a man has of an estate in his own right and
for his own benefit, and not as trustee for another.
11 H.L.Cas. 271.
BENEFICIAL ESTATE. An estate in expectancy
is one where the right to the possession is postponed to a future period, and is "beneficial" where
the devisee takes solely for his own use or benefit,
and not as the mere holder of the title for the use
of another. In re Seaman's Estate, 147 N.Y. 69,
41 N.E. 401.
BENEFICIAL INTEREST. Profit, benefit, or advantage resulting from a contract, or the ownership of an estate as distinct from the legal ownership or control. People v. Schaefer, 266 Ill.
334, 107 N.E. 617, 619; Christiansen v. Department of Social Security, 15 Wash.2d 465, 131 P.2d
189, 191, 192.
When considered as designation of character of an estate,
is such an interest as a devisee, legatee, or donee takes
solely for his own use or benefit, and not as holder of title for use and benefit of another. People v. Northern
Trust Co., 330 Ill. 238, 161 N.E. 525, 528.
BENEFICIAL POWER. In New York law and
practice. A power which has for its object the
donee of the power, and which is to be executed
solely for his benefit; as distinguished from a
trust power, which has for its object a person other than the donee, and is to be executed solely for
the benefit of such person. Jennings v. Conboy,
73 N.Y. 234; In re New York Life Ins. & Trust Co.,
Sur., 139 N.Y.S. 695, 705; People, by Van Schaick
v. New York Title & Mortgage Co., 270 N.Y.S. 473,
150 Misc. 488.
BENEFICIAL USE. The right to use and enjoy
property according to one's own liking or so as
to derive a profit or benefit from it, including all
that makes it desirable or habitable, as light, air,
and access; as distinguished from a mere right of
occupancy or possession. Reining v. Railroad Co.,
Super.Ct., 13 N.Y.Supp. 240.
Such right to enjoyment of property where legal title
is in one person while right to such use or interest is in
another. Christiansen v. Department of Social Security,
15 Wash.2d 465, 131 P.2d 189, 191.
BENEFICIARY. One for whose benefit a trust is
created; a cestui que trust. 195 N.E. 557, 564, 97
A.L.R. 1170. A person having the enjoyment of
property of which a trustee, executor, etc., has the
legal possession. The person to whom a policy of
insurance is payable. Parrott Estate Co. v. McLaughlin. D.C.Cal., 12 F.Supp. 23, 25; Odom v.
Prudential Ins. Co. of America, 173 Or. 435, 145
P.2d 480, 482. One receiving benefit or advantage,
or one who is in receipt of benefits, profits, or advantage. Bauer v. Myers, C.C.A.Kan., 244 F. 902,
908. For "Favored Beneficiary," see that title.
BENEFICIO PRIMA, or PRIMO [ECCLESIASTICO HABENDO]. In English law. An ancient
writ, which was addressed by the king to the lord
chancellor, to bestow the benefice that should first
fall in the royal gift, above or under a specified
value, upon a person named therein. Reg.Orig.
307.
BENEFICIUM.
In Early Feudal Law
A benefice; a permanent stipendiary estate;
the same with what was afterwards called a
"fief," "feud," or "fee." 3 Steph.Comm. 77, note i;
Spelman. It originally meant a "benefaction"
from the king, usually to a noble.
In the Civil Law
A benefit or favor; any particular privilege.
Dig. 1, 4, 3; Cod. 7, 71; Mackeld.Rom.Law, § 196.
A general term applied to ecclesiastical livings.
4 Bl.Comm. 107; Cowell.
In General
—Beneficium abstinendi. In Roman law. The
power of an heir to abstain from accepting the
inheritance. Sandars, Just.Inst. (5th Ed.) 214.
—Beneficium cedendarum actionum. In Roman
law. The privilege by which a surety could, before paying the creditor, compel him to make over
to him the actions which belonged to the stipulator, so as to avail himself of them. Sandars, Just.
Inst. (5th Ed.) 332, 351.
—Beneficium clericale. Benefit of clergy (q. v.).
—Beneficium competentiw. In Scotch law. The
privilege of competency. A privilege which the
grantor of a gratuitous obligation was entitled to,
by which he might retain sufficient for his subsistence, if, before fulfilling the obligation, he was
reduced to indigence. Bell. In the civil law. The
right which an insolvent debtor had, among the
Romans, on making cession of his property for
the benefit of his creditors, to retain what was required for him to live honestly according to his
condition. 7 Toullier, n. 258.
A defendant's privilege of being condemned
only in an amount which he could pay without
being reduced to a state of destitution. Sand.
Justinian iv. vi. 37.
—Beneficium divisionis. In civil and Scotch law.
The privilege of one of several co-sureties (cautioners) to insist upon paying only his pro rata
share of the debt. Bell; La.Civ.Code, arts. 30453051.
199
BENEFICIUM
—Beneficium inventarii. See Benefit of Inventory.
—Beneficium ordinis. In civil and Scotch law.
The privilege of order. The privilege of a surety
to require that the creditor should first proceed
against the principal and exhaust his remedy
against him, before resorting to the surety. Bell.
—Beneficium separationis. In the civil law. The
right to have the goods of an heir separated from
those of the testator in favor of creditors.
ment in question; while special benefits are such
as accrue directly and solely to the owner of the
land in question and not to others. Brand v.
Union Elevated R. Co., 101 N.E. 247, 249, 258 Ill.
133, Ann.Cas.1914B, 473, L.R.A.1918A, 878.
In Taxation
With reference to an assessment for a drainage
ditch, a benefit is anything that will make land
more valuable for tillage or more desirable for a
residence or more valuable in the general market.
Watson v. Armstrong, 180 Ind. 49, 102 N.E. 273.
BENEFICIUM INVITO NON DATUR. A privilege or benefit is not granted against one's will.
Adams Gloss.
BENEFIT ASSOCIATION. See Benefit Societies.
BENEFICIUM NON DATUM NISI PROPTER
FICIUM. Hob. 148. A remuneration [is] not given, unless on account of a duty performed.
BENEFIT BUILDING SOCIETY. The original
name for what is now more commonly called a
"building society" (q. v.).
BENEFICIUM NON DATUR NISI OFFICII CAUSA. A benefice is not granted except on account
or in consideration of duty. Adams Gloss.
BENEFIT CERTIFICATE. A written obligation
to pay the person therein named the amount specified upon the conditions therein stipulated. Green
v. Grand United Order of Odd Fellows, Tex.Civ.
App., 163 S.W. 1068, 1070.
Also a term usually applied to policies issued
by fraternal and beneficiary societies. Chandler
v. New York Life Ins. Co., 194 Ark. 6, 104 S.W.2d
1060, 1061.
BENEFICIUM PRINCIPIS DEBET ESSE MANSURUM. The benefaction of a prince ought to be
lasting. Adams Gloss.
BENEFIT. Advantage; profit; fruit; privilege;
advantage. Fitch v. Bates, 11 Barb. (N.Y.) 473;
Ferrigino v. Keasbey, 93 Conn. 445, 106 A. 445,
447; In re Krause's Estate, 173 Wash. 1, 21 P.2d
268; a pecuniary advantage or profit; gain; account; interest; the whole benefit and entire
beneficial interest. Bird v. Newcomb, 170 Va. 208,
196 S.E. 605, 608.
In the Workmen's Compensation Act, the term
"benefits" is used of an award to be granted when
an injury results in death, and is distinguished
from "compensation," which is to be granted when
an injury results in incapacity or disability. Di
Cicco v. Industrial Commission of Ohio, 11 Ohio
App. 271, 273.
In Contracts
When it is said that a valuable consideration
for a promise may consist of a benefit to the promisor, "benefit" means that the promisor has, in
return for his promise, acquired some legal right
to which he would not otherwise have been entitled. Irving v. Irwin, 24 P.2d 215, 216, 133 Cal.
App. 374. Woolum v. Sizemore, 267 Ky. 384, 102
S.W.2d 323, 324.
BENEFIT OF BARGAIN RULE. Under such rule
a defrauded purchaser may recover the difference between the real and the represented value
of the property purchased regardless of the fact
that the actual loss suffered might have been less.
Stewart v. Potter, 44 N.M. 460, 104 P.2d 736, 739.
BENEFIT OF CESSION. In the civil law. The
release of a debtor from future imprisonment for
his debts, which the law operates in his favor
upon the surrender of his property for the benefit
of his creditors. Poth.Proc.Civil, pt. 5, c. 2, § 1.
BENEFIT OF CLERGY. In its original sense, the
phrase denoted the exemption which was accorded
to clergymen from the jurisdiction of the secular
courts, or from arrest or attachment on criminal
process issuing from those courts in certain particular cases. Afterwards, it meant a privilege of
exemption from the punishment of death accorded
to such persons as were clerks, or who could
read. This privilege of exemption from capital
punishment was anciently allowed to clergymen
only, but afterwards to all who were connected
"Benefit" is not limited to pecuniary gains, nor to any
with the church, even to its most subordinate ofparticular kind of advantage; it refers to what is adficers, and at a still later time to all persons who
vantageous, whatever promotes prosperity or happiness,
what enhances the value of the property or rights of citicould read, (then called "clerks,") whether eczens as contradistinguished from what is injurious. Hoopclesiastics or laymen. It does not appear to have
er v. Merchants' Bank & Trust Co., 130 S.E. 49, 52, 190 N.
been extended to cases of high treason, nor did
C. 423.
it apply to mere misdemeanors. The privilege
In Eminent Domain
was claimed after the person's conviction, by a
It is a rule that, in assessing damages for prispecies of motion in arrest of judgment, technivate property taken or injured for public use,
cally called "praying his clergy." As a means of
testing his clerical character, he was given a
"special benefits" may be set off against the
psalm to read, (usually, or always, the fifty-first,)
amount of damage found, but not "general benefits." Within the meaning of this rule, general
and, upon his reading it correctly, he was turned
benefits are such as accrue to the community at over to the ecclesiastical courts, to be tried by the
bishop or a jury of twelve clerks. These heard
large, to the vicinage, or to all property similarly
him on oath, with his witnesses and compurgasituated with reference to the work or improve200
BENEVOLENT
tors, who attested their belief in his innocence.
This privilege operated greatly to mitigate the extreme rigor of the criminal laws, but was found to
involve such gross abuses that parliament began
to enact that certain crimes should be felonies
"without benefit of clergy," and finally, by St. 7
Geo. IV. c. 28, § 6, it was altogether abolished.
The act of congress of April 30, 1790, c. 9, § 31, 1
Stat. 119, provided that there should be no benefit
of clergy for any capital crime against the United
States, and, if this privilege formed a part of the
common law of the several states before the Revolution, it no longer exists.
BENEFIT OF COUNSEL. The guaranty of "benefit of counsel" to accused, given in the Georgia
Bill of Rights of Const. art. 1, § 1, par. 5, means
more than the mere appointment by the court of
counsel to represent the accused and implies also
that such counsel be given a reasonable time for
preparation to properly represent the accused at
the trial. Reliford v. State, 140 Ga. 777, 79 S.E.
1128, 1129. Sheppard v. State, 165 Ga. 460, 141
S.E. 196, 198.
BENEFIT OF DISCUSSION. In the civil law.
The right which a surety has to cause the property of the principal debtor to be applied in satisfaction of the obligation in the first instance.
Civ.Code La. arts. 3045-3051. In Scotch law.
That whereby the antecedent heir, such as the
heir of line in a pursuit against the heir of tailzie, etc., must be first pursued to fulfill the defunct's deeds and pay his debts. This benefit is
likewise competent in many cases to cautioners.
BENEFIT OF DIVISION. Same as beneficium
divisionis (q. v.).
BENEFIT OF INVENTORY. In the civil law.
The privilege which the heir obtains of being liable for the charges and debts of the succession,
only to the value of the effects of the succession,
by causing an inventory of these effects within the
time and manner prescribed by law. Civil Code
La. art. 1032.
BENEFIT OF ORDER. See Beneficium Ordinis.
BENEFIT SOCIETIES. Under this and several
similar names, in various states, corporations exist to receive periodical payments from members,
and hold them as a fund to be loaned or given
to members needing pecuniary relief. Such are
beneficial societies of Maryland, fund associations
of Missouri, loan and fund associations of Massachusetts, mechanics' associations of Michigan, protection societies of New Jersey. Friendly societies
in Great Britain are a still more extensive and
important species belonging to this class. Comm.
v. Equitable Ben. Ass'n, 137 Pa. 412, 18 A. 1112.
The love of humanity; the desire to promote its
prosperity or happiness. The term includes acts
of well-wishing towards others, for the promotion
of general happiness, and plans actuated by love
of others and a desire for their well-being. In re
Peabody's Estate, 208 N.Y.S. 664, 671, 124 Misc.
338. Also beneficent; doing well.
It is a broader term than "charity" which it includes,
and with which it is frequently used synonymously.
"Charity" in its legal sense implies giving without consideration or expectation of return, and "benevolence" applies to any act which is prompted by or has for its object
the well-being of others. State v. Texas Mut. Life Ins. Co.
of Texas, Tex.Civ.App., 51 S.W.2d 405, 410.
In public law. Nominally a voluntary gratuity
given by subjects to their king, but in reality a
tax or forced loan. Cowell; 1 Bla.Comm. 140.
BENEVOLENT. Philanthropic; humane; having
a desire or purpose to do good to men; intended
for the conferring of benefits, rather than for
gain or profit; loving others and actively desirous
of their well being. In re Altman's Estate, 149
N.Y.S. 601, 605, 8 . 7 Misc. 255.
This word is certainly more indefinite, and of far wider
range, than "charitable" or "religious ;" it would include
all gifts prompted by good-will or kind feeling towards
the recipient, whether an object of charity or not. The
natural and usual meaning of the word would so extend it.
It has no legal meaning separate from its usual meaning.
"Charitable" has acquired a settled limited meaning in
law, which confines it within known limits. But in all the
decisions in England on the subject it has been held that a
devise or bequest for benevolent objects, or in trust to give
to such objects, is too indefinite, and therefore void. Suter
v. Hilliard, 132 Mass. 413, 42 Am.Rep. 444;
This word, as applied to objects or purposes, may refer
to those which are in their nature charitable, and may
also have a broader meaning and include objects and purposes not charitable in the legal sense of that word. Acts
of kindness, friendship, forethought, or good-will Might
properly be described as benevolent. It has therefore been
held that gifts to trustees to be applied for "benevolent
purposes" at their discretion, or to such benevolent purposes as they could agree upon, do not create a public charity. But where the word is used in connection with other
words explanatory of its meaning, and indicating the intent of the donor to limit it to purposes strictly charitable,
it has been held to be synonymous with, or equivalent to,
"charitable." Suter v. Hilliard, 132 Mass. 412, 42 Am.Rep.
444;
BENEVOLENT ASSOCIATIONS. Those having a
philanthropic or charitable purpose, as distinguished from such as are conducted for profit;
specifically, "benefit associations" or "beneficial
associations." Methodist Episcopal Church Baraca Club v. City of Madison, 167 Wis. 207, 167 N.
W. 258, L.R.A.1918D, 1124.
BENEVOLENT CORPORATION. One that ministers to all; the purpose may be anything that
promotes the mental, physical, or spiritual welfare of man. Society of Helpers of Holy Souls v.
Law, 267 Mo. 667, 186 S.W. 718, 725; with respect
to exemption from succession tax. Corbin v.
American Industrial Bank & Trust Co., 95 Conn.
BENERTH. A feudal service rendered by the
50, 110 A. 459, 461. The term may include a cortenant to his lord with plow and cart. Cowell.
poration to which a bequest is made to be used in
the improvement of the social, physical, and ecoBENEVOLENCE. The doing of a kind or helpful
nomic condition of the employees of a business
action towards another, under no obligation excorporation. In re Altman's Estate, 149 N.Y.S.
cept an ethical one.
601, 605, 87 Misc. 255.
201
BENEVOLENT
BENEVOLENT SOCIETY. Benevolent association. Spring Park Ass'n v. Rosedale Park Amusement Co., 216 Ala. 549, 114 So. 43, 44. In English.
law, "benevolent societies" are societies established and registered under the Friendly Societies
Act, 1875, for any charitable or benevolent purposes.
BENEVOLENTIA REGIS HABENDA. The form
in ancient fines and submissions to purchase the
king's pardon and favor in order to be restored
to place, title or estate. Paroch.Antiq. 172.
BENHURST. In Berkshire, a remedy for the inhabitants thereof to levy money recovered against
them on the statute of hue and cry. 39 Eliz. c. 25.
BENIGNE FACIENDIE SUNT INTERPRETATIONES CHARTARUM, UT RES MAGIS VALEAT QUAM PEREAT; ET QUE LIBET CONCESSIO FORTISSIME CONTRA DONATOREM
INTERPRETANDA EST. Liberal interpretations
are to be made of deeds, so that the purpose may
rather stand than fall; and every grant is to
be taken most strongly against the grantor.
Hayes v. Kershow, 1 Sandf.Ch. (N.Y.) 258, 268.
BENIGNE FACIENDIE SUNT INTERPRETATIONES, PROPTER SIMPLICITATEM LAICORUM, UT RES MAGIS VALEAT QUAM PEREAT;
ET VERBA INTENTION!, NON E CONTRA, DEBENT INSERVIRE. Constructions [of written
instruments] are to be made liberally, on account
of the simplicity of the laity, [or common people,] in order that the thing [or subject-matter]
may rather have effect than perish, [or become
void] ; and words must be subject to the intention, not the intention to the words. 2 Bla.Com.
379; 1 Bulstr. 175; Krider v. Lafferty, 1 Whart.
(Pa.) an.
848, 232 Iowa 1004; Disposition of realty in will is
termed "devise." Grand Island Trust Co. v. Snell,
249 N.W. 293, 125 Neb. 148.
The term does not mean a "gift" in the narrow sense of
a voluntary act of charity or good will, but ordinarily
means a testamentary disposition of the testator's personalty. First Presbyterian Church of Mt. Vernon v. Dennis,
178 Iowa, 1352, 161 N.W. 183, 185, L.R.A.1917C, 1005. It is
not necessarily limited to a gratuity, and may include a
recompense. U. S. v. Merriam, 44 S.Ct. 69, 70, 263 U.S.
179, 68 L. Ed. 240, 29 A.L.R. 1547.
"Bequest" and "devise" are often used synonymously.
In re McGovern's Estate, 77 Mont. 182, 250 P. 812, 817.
Conditional Bequest
One the taking effect or continuing of which depends upon the happening or non-occurrence of
a particular event. Merrill v. College, 74 Wis.
415, 43 N.W. 104.
Executory Bequest
The bequest of a future, deferred, or contingent
interest in personalty.
Residuary Bequest
A gift of all the remainder of the testator's
personal estate, after payment of debts and legacies, etc.
Specific Bequest
One whereby the testator gives to the legatee all
his property of a certain class or kind; as all his
pure personalty.
BERAT. Also barat. A warrant or patent of
dignity or privilege given by an Oriental monarch.
Cent. Dict.
BERBIAGE. A rent paid for the pasturing of
sheep. Wharton.
BENIGNIOR SENTENTIA IN VERBIS GENERALIBUS SEU DUBIIS, EST PRIEFERENDA.
The more favorable construction is to be placed on
general or doubtful expressions. 2 Kent 557.
BERCARIA. In old English law, a sheepfold;
also a place where the bark of trees was laid to
tan.
BENIGNIUS LEGES INTERPRETAND,E SUNT
QUO VOLUNTAS EARUM CONSERVETUR.
Laws are to be more liberally interpreted, in order
that their intent may be preserved. Dig. 1, 3, 18.
BEREWICHA, or BEREWICA. In old English
law. A term used in Domesday for a village or
hamlet belonging to some town or manor.
BENZINE. A crude petroleum distillate. George
K. Hale Mfg. Co. v. Hafleigh & Co., C.C.A.Pa., 52
F.2d 714, 718.
BEQUEATH. To give personal property by will
to another. Fielding v. Alkire, 124 Kan. 592, 261
P. 597, 599. It therefore is distinguishable from
"devise," which is properly used of realty. Stubbs
v. Abel, 114 Or. 610, 233 P. 852, 857; Fleck v.
Harmstad, 155 A. 875, 876, 304 Pa. 302, 77 A.L.R.
874.
But if the context clearly shows the intention of the
testator to use the word "bequeath" as synonymous with
"devise." it may be held to pass real property. Stubbs v.
Abel, 114 Or. 610, 233 P. 852, 859.
BERCARIUS, or BERCATOR. A shepherd.
BERG. A rock (Cent. Dict.) ; a hill (Wharton) ;
in South Africa, a mountain (Webster).
BERGHMAYSTER. An officer having charge of
a mine. A bailiff or chief officer among the Derbyshire miners, who, in addition to his other duties, executes the office of coroner among them.
Blount; Cowell.
BERGHMOTH, or BERGHMOTE. The ancient
name of the court now called "barmote," (q. v.).
BERIA, BERIE, or BERRY. A plain; a large
open field. Wharton. See Berra.
BERM BANK. A ledge at the bottom of a cutting
or bank, as of a creek, to catch earth that may
BEQUEST. A gift by will of personal property;
roll down the slope, or to strengthen the bank.
a legacy. In re Fratt's Estate, 60 Mont. 526, 199 Miller v. State, 149 N.Y.S. 788, 789, 164 App.Div.
P. 711, 714; In re Wood's Estate, 6 N.W.2d 846,
522.
202
BET
looking to the solvency of the bidder, the bond tendered,
and all the circumstances surrounding the transaction, the
safety and preservation of the school fund, the "best bid"
might be the lowest bid. Donna Independent School Dist.
v. First State Bank of Donna, Tex.Civ.App., 227 S.W. 974,
975.
Where one covenants to use his "best endeavors," there
is no breach if he is prevented by causes wholly beyond
his control and without any default on his part. 7 H. &
N. 92.
The "best interests" of a child whose custody is in question has reference more particularly to the moral welfare
than to mere comforts, benefits, or advantages that wealth
can give. Jones v. Moore, 61 Utah, 383, 213 P. 191, 194.
The "best interests" of an estate mean the greatest or
most advantage or usefulness to such estate. Stockyards
Nat. Bank of South Omaha v. Bragg, 67 Utah, 60, 245 P.
966, 971.
BERNET. In Saxon law. Burning; the crime of
house burning, now called "arson." Cowell;
Blount.
BERRA. In old law. A plain; open heath. Cowell.
BERRY, or BURY. A villa or seat of habitation
of a nobleman; a dwelling or mansion house; a
sanctuary.
BERTILLON SYSTEM. A method of anthropometry (q. v.), used chiefly for the identification of
criminals and other persons, consisting of the taking and recording of a system of numerous, minute, and uniform measurements of various parts
of the human body, absolutely and in relation to
each other, the facial, cranial, and other angles,
and of any eccentricities or abnormalities noticed
in the individual.
BEST EVIDENCE. Primary evidence, as distinguished from secondary; original, as distinguished from substitutionary; the best and highest evidence of which the nature of the case is susceptible, not the highest or strongest evidence
which the nature of the thing to be proved admits
of. See, also, Primary Evidence.
BERTON. A large farm; the barn-yard of a large
farm.
BES. Lat. In the Roman law. A division of the
as, or pound, consisting of eight uncice, or duodecimal parts, and amounting to two-thirds of the
as. 2 Bl.Comm. 462 note m.
Two-thirds of an inheritance. Inst. 2, 14, 5.
Eight per cent. interest. 2 Bl.Comm. ubi supra.
BESAILE, BESAYLE. The great-grandfather,
proavus. 1 Bl.Comm. 186.
BESAYEL, Besaiel, Besayle. In old English law.
A writ which lay where a great-grandfather died
seised of lands and tenements in fee-simple, and
on the day of his death a stranger abated, or entered and kept out the heir. Reg.Orig. 226; Fitzh.
Nat.Brev. 221 D; 3 Bl.Comm. 186.
BESIDES. In addition to; moreover; also; likewise. State v. State Road Commission, 100 W.Va.
531, 131 S.E. 7, 10.
In provisions in a will for children "besides" an eldest
son, no children take unless there be a son. 4 Dr. & War.
235.
BESEECH. To entreat; to emplore. Tiencken v.
Zerbst, 196 S.C. 438, 13 S.E.2d 483, 484.
BESOIN. Fr. Need. See Au Besoin.
A written instrument is itself always regarded as the
primary or best possible evidence of its existence and
contents; a copy, or the recollection of a witness, would
be secondary evidence. Manhattan Malting Co. v. Sweteland, 14 Mont. 269, 36 P. 84.
"Best evidence" or "primary evidence" includes the best
evidence which is available to a party and procurable under the existing situation, and all evidence falling short of
such standard, and which in its nature suggests there is
bettei evidence of the same fact, is "secondary evidence."
Best v. Equitable Life Assur. Soc., Mo.App., 299 S.W. 118,
120.
The best evidence of a fact is the testimony of a person
who knows. State v. Normandale, 154 La. 523, 97 So. 798,
799 (mother could testify to the date of her daughter's
birth, as against an objection that the baptismal certificate or the registry was the best evidence).
"Best evidence rule". Is that highest available degree
of proof must be produced. Cheadle v. Bardwell, 95 Mont.
299, 26 P.2d 336. It means that no evidence which is merely substitutionary in its nature shall be received so long as
original evidence can be had; Pettit v. Campbell, Tex.Civ.
App., 149 S.W.2d 633, 635, 636; that contents of document
must be proved by producing document itself. Nunan v.
Timberlake, 85 F.2d 407, 410, 66 App.D.C. 150.
BESTIR, A beast, as a being without reason;
—opposed to man; while animal, a living being,
includes man also. Adams Gloss., citing Just.
Inst., 2, 1, 12.
BESTIAE CARUCAE. Beasts of the plow. Adams Gloss., citing Fleta, IV, c. 17, § 14.
BESOT. To stupefy, to make dull or senseless,
to make to dote; and "to dote" is to be delirious,
silly, or insane. Gates v. Meredith, 7 Ind. 440, 441.
BESS. A well-known contraction of "Elizabeth."
H. R. & C. Co. v. Smith, 208 N.Y.S. 396, 400, 212
App.Div. 173.
BESSEMERIZING. A process by which copper
relatively pure is obtained from matte. PeirceSmith Converter Co. v. United Verde Copper Co.,
D.C.Del., 293 F. 108, 109.
BEST. Of the highest quality; of the greatest
usefulness for the purpose intended. For example:
The "best bid" of interest by a prospective depositary of
school funds would not necessarily be the highest bid, but,
BESTIALITY. A sexual connection between a
human being and a brute of the opposite sex.
State v. Poole, 122 P.2d 415, 416, 59 Ariz. 44.
At common law the term "crime against nature" embraced both "sodomy" and "bestiality", State v. Poole,
122 P.2d 415, 416, 59 Ariz. 44. See Sodomy.
BESTOW. To give, grant, confer, or impart;
not necessarily limited in meaning to "devise."
Tillett v. Nixon, 180 N.C. 195, 104 S.E. 352, 355.
BET. An agreement between two or more persons that a sum of money or other valuable
thing, to which all jointly contribute, shall become
the sole property of one or some of them on the
happening in the future of an event at present un-
203
BET
certain, or according as a question disputed between them is settled in one way or the other.
Coulter v. State, 122 Tex.Cr.R. 9, 53 S.W.2d 477,
480.
A contract by which two or more parties agree that a
sum of money, or other thing, shall be paid or delivered to
one of them on the happening or not happening of an uncertain event. Grooms v. Knox, 25 Ala.App. 185, 142 So.
582.
In a "bet" or "wager" money belongs to the persons
posting it, each of whom has a chance to win it, but, in
the case of a "purse" or "premium," money belongs to the
person offering it, who has no chance to win it, but is certain to lose it. Toomey v. Penwell, 76 Mont. 166, 245 P.
943, 945, 45 A.L.R. 993.
Bet and wager are synonymous terms. Woodcock v. McQueen, 11 Ind. 16; Shumate v. Com., 15 Grat. (Va.) 660.
BETHLEHEM. See Bedlam.
BETTING BOOK. A book kept for registering
bets on the result of a race as operated on race
track. In a broader sense, the "betting book" is
that book which enables the professional bettor to
carry on his business, and to promote a race, and
it includes the book, the making book and the
bookmaker. State v. Austin, 142 La. 384, 76 So.
809, 810; People v. Semmler, 345 Ill. 272, 178 N.E.
100, 101.
BETRAYAL. A "betrayal," as of a professional
secret on the part of a physician, signifies a
wrongful disclosure in violation of the trust imposed by the patient. Simonsen v. Swenson, 104
Neb. 224, 177 N.W. 831, 832, 9 A.L.R. 1250.
BETROTHED. One who has exchanged promises
to marry. The term may be synonymous with "intended wife." Mace v. Grand Lodge, A. 0. U. W.
of Massachusetts, 234 Mass. 299, 125 N.E. 569.
BETROTHMENT, BETROTHAL. Mutual promise of marriage; the plighting of troth; a mutual
promise or contract between a man and woman
competent to make it, to marry at a future time.
BETTER DESCRIBED. More fully delineated or
more fully pictured or painted. Katzin v. Kruvant, 99 N.J.Eq. 619, 133 A. 516, 517.
BETTER EQUITY. See Equity.
BETTERMENT. An improvement put upon an
estate which enhances its value more than mere
repairs. The improvement may be either temporary or permanent. People v. Klee, 282 Ill. 440,
118 N.E. 754, 757.
Also applied to denote the additional value which an estate acquires in consequence of some public improvement,
as laying out or widening a street, etc., Chase v. Sioux
City, 86 Iowa, 603, 53 N.W. 333.
BETTERMENT ACTS. Statutes which provide
that a bona fide occupant of real estate making
lasting improvements in good faith shall have a
lien upon the estate recovered by the real owner
to the extent that his improvements have increased the value of the land. Also called "occupying claimant acts." Jones v. Hotel Co., 86
F. 386, 30 C.C.A. 108.
BETWEEN. A space which separates. Hobson v.
Postal Telegraph-Cable Co., 161 Tenn. 419, 32 S.
W.2d 1046. Strictly applicable • only with reference to two things, but this may be understood as
including cases in which a number of things are
discriminated collectively as two wholes, or as taken in pairs, or where one thing is set off against
a number of others. In re McShane's Will, 286
N.Y.S. 680, 682, 158 Misc. 777. Sometimes used
synonymously with "among". In re Moore's Estate, 157 Pa.Super. 296, 43 A.2d 359.
As a measure or indication of distance, this word has
the effect of excluding the two termini. Morris & E. R.
Co. v. Central R. Co., 31 N.J.Law, 212.
If an act is to be done "between" two certain days, it
must be performed before the commencement of the latter
day. In computing the time in such a case, both the days
named are to be excluded. Hodges v. Filstrup, 94 Fla. 943,
114 So. 521, 522. But a clause in a contract of sale to the
effect that the purchaser could require the vendor to repurchase between the fifth and sixth year from a certain date
means during the sixth year. Van Demark v. California
Home Extension Ass'n, 43 Cal.App. 685, 185 P. 866, 868.
In case of a devise to A. and B. "between them," these
words create a tenancy in common. Lashbrook v. Cock, 2
Mer. 70.
Between equal equities the law must prevail.
This is hardly of general application.
BEVERAGE. A liquor or liquid for drinking.
Burnstein v. U. S., C.C.A.Cal., 55 F.2d 599, 603.
Especially pleasant or refreshing drink, or a habitual one. Tennant v. F. C. Whitney & Sons, 133
Wash. 581, 234 P. 666, 670.
This term is properly used to distinguish a sale of liquors
to be drunk for the pleasure of drinking, from liquors to
be drunk in obedience to a physician's advice, Falstaff
Corporation v. Allen, D.C.Mo., 278 F. 643, 645; or from a
liquid which it is possible to swallow, but which is not reasonably palatable or fit for drinking, Tennant v. F. C.
Whitney & Sons, 133 Wash. 581, 234 P. 666. Thus, it is
held that pure alcohol is not a "beverage" but a violent
irritant. Chas. L. Joy & Co. v. Carlson, 28 Idaho 445, 154
P. 640, 641.
This term sometimes has a narrower meaning signifying a drink artificially prepared. Climax Dairy Co. v.
Mulder, 78 Colo. 407, 242 P. 666, 669. United States v. Robason, D.C.Kan., 38 F.Supp. 991, 992.
BEWARED. 0. Eng. Expended. Before the
Britons and Saxons had introduced the general
use of money, they traded chiefly by exchange of
wares. Wharton.
BEYOND A REASONABLE DOUBT. In evidence means fully satisfied, entirely convinced,
satisfied to a moral certainty; State v. Harris, 28
S.E.2d 232, 237, 223 N.C. 697; and phrase is the
equivalent of the words clear, precise and indubitable. Ferguson Packing Co. v. Mihalic, 99 Pa.Super. 158, 162.
An accused's guilt must be established "beyond a reasonable doubt," which means that facts proven must, by
virtue of their probative force, establish guilt. People ex
rel. Schubert v. Pinder, 9 N.Y.S.2d 311, 312, 170 Misc.
345.
BEYOND SEA. Beyond the limits of the kingdom
of Great Britain and Ireland; outside the United
States; out of the state.
Beyond sea, beyond the four seas, beyond the seas, and
out of the realm, are synonymous. Prior to the union of
the two crowns of England and Scotland, on the accession
of James I., the phrases "beyond the four seas," "beyond
the seas," and "out of the realm," signified out of the
204
BIENES
li mits of the realm of England. Pancoast's Lessee v. Addison, 1 Han & J. (Md.) 350, 2 Am.Dec. 520.
In Pennsylvania, it has been construed to mean "without the limits of the United States," which approaches the
literal signification. Ward v. Hallam, 2 Da11. 217, 1 L.1 d.
355. The same construction has been given to it in Missouri. Keeton's Heirs v. Keeton's Adm'r, 20 'Mo. 530. See
Ang.Lim. §§ 200, 201.
BIAS. Inclination; bent; prepossession; a preconceived opinion; a predisposition to decide a
cause or an issue in a certain way, which does
not leave the mind perfectly open to conviction.
Maddox v. State, 32 Ga. 587, 79 Am.Dec. 307; Pierson v. State, 18 Tex.App. 558. To incline to one
side. Yarbrough v. Mallory, 225 Ala. 579, 144 So.
447, 448. Condition of mind, which sways judgment and renders judge unable to exercise his
functions impartially in particular case. Evans v.
Superior Court in and for Los Angeles County, 107
Cal.App. 372, 290 P. 662, 665.
As used in law regarding disqualification of judge, refers
to mental attitude or disposition of the judge toward a
party to the litigation, and not to any views that he may
entertain regarding the subject matter involved. State ex
rel. Mitchell v. Sage Stores Co., 157 Kan. 622, 143 P.2d 652,
655.
Actual bias consists in the existence of a state of mind
on the part of the juror which satisfies the court, in the
exercise of a sound discretion, that the juror cannot try the
issues impartially and without prejudice to the substantial
rights of the party challenging. People v. Wells, 100 Cal.
227, 34 P. 718.
BIBLE. See Family Bible.
BICAMERAL SYSTEM. A term applied by Jeremy Bentham to the division of a legislative body
into two chambers, as in the United States government.
BID. An offer by an intending purchaser to pay
a designated price for property which is about to
be sold at auction. U. S. v. Vestal, D.C.N.C., 12
F. 59. Payne v. Cave, 3 Term, 149; Eppes v. Railroad Co., 35 Ala. 56. See Chilling a sale.
An offer to perform a contract for work and
labor or supplying materials at a specified price.
Similarly, an offer to do any of various other acts, as the
payment by a bank of a particular rate of interest for the
privilege of becoming a depositary of county funds. Casey
v. Independence County, 109 Ark. 11, 159 S.W. 24, 25, Ann.
Cas.1915C, 1008. A "bid" for bonds is no more nor less
than a proposition. Joint School Dist. No. 132 in Major
County and Alfalfa County v. Dabney, 127 Oki. 234, 260 P.
486, 491.
—Bid in. Property sold at auction is said to be
"bid in" by the owner or an incumbrancer or some
one else who is interested in it, when he attends
the sale and makes the successful bid.
—Bid off. One is said to "bid off" a thing when
he bids for it at an auction sale, and it is knocked
down to him in immediate succession to the bid
and as a consequence of it. Eppes v. Railroad
Co., 35 Ala. 56; Doudna, v. Harlan, 45 Kan. 484,
25 Pac. 883.
—Biddings. Offers of a designated price for goods
or other property put up for sale at auction.
—By-bidding. In the law relating to sales by auction, this term is equivalent to "puffing." The
practice consists in making fictitious bids for the
property, under a secret arrangement with the
owner or auctioneer, for the purpose of misleading and stimulating other persons who are bidding
in good faith.
—Competitive bidding. "Competitive bidding"
means that the council must by due advertisement give opportunity for everyone to bid, but
does not mean that more than one bid must be
submitted. Blanton v. Town of Wallins, 218 Ky.
295, 291 S.W. 372, 375. The term means bidding
upon the same undertaking, upon the same material items in the subject-matter, upon the same
thing. Leininger v. Ward, 126 Okl. 114, 258 P.
863, 864.
—Upset bid. A bid made after a judicial sale, but
before the successful bid at the sale has been confirmed, larger or better than such successful bid,
and made for the purpose of upsetting the sale
and securing to the "upset bidder" the privilege of
taking the property at his bid or competing at a
new sale. Yost v. Porter, 80 Va. 858.
BIDAL, or BIDALL. An invitation of friends to
drink ale at the house of some poor man, who
hopes thereby to be relieved by charitable contribution. It is something like "house-warming,"
i. e., a visit of friends to a person beginning to
set up housekeeping. Wharton. See Bed-Ale.
"There was an antient Custom called a Bid-Ale
* * * when any honest Man decayed in his
Estate, was set up again by the liberal Benevolence and Contributions of Friends at a Feast, to
which those Friends were bid or invited. It was
most used in the West of England, and in some
Counties called a Help Ale." Brand's Pop. Antiq.
(1777), p. 339, note.
BIELBRIEF. Germ. In European maritime law.
A document furnished by the builder of a vessel,
containing a register of her admeasurement, particularizing the length, breadth, and dimensions of
every part of the ship.
It sometimes also contains the terms of akreement be-
tween the party for whose account the ship is built, and
the ship-builder. It has been termed in English the "grand
bill of sale ;" in French, "contrat de construction ou de la
vente d'un vaisseau," and corresponds in a great degree
with the English, French, and American "register," (q. v.,)
being an equally essential document to the lawful ownership of vessels. Jac. Sea Laws, 12, 13, and note. In the
Danish law, it is used to denote the contract of bottomry.
BIENES. Sp. In Spanish law. Goods; property
of every description, including real as well as
personal property; all things (not being persons)
which may serve for the uses of man. Larkin
v. U. S., 14 Fed.Cas. 1154.
—Bienes comunes. Common property; those
—Bidder. One who makes a bid. One who offers
things which, not being the private property of
to pay a specified price for an article offered for any person, are open to the use of all, such as the
sale at a public auction. Webster v. French, 11
air, rain, water, the sea and its beaches. Lux v.
Ill. 254. As to "Responsible bidder" see that title. Haggin, 69 Cal. 255, 315, 10 Pac. 707.
205
BIENES
—Bienes ganariciales. A species of community in
property enjoyed by husband and wife, the property being divisible equally between them on the
dissolution of the marriage; does not include what
they held as their separate property at the time of
contracting the marriage. Welder v. Lambert, 91
Tex. 510, 44 S.W. 281.
—Bienes publieos. Those things which, as to property, pertain to the people or nation, and, as to
their use, to the individuals of the territory or
district, such as rivers, shores, ports, and public
roads. Lux v. Haggin, 69 Cal. 315, 10 P. 707.
BIENNIALLY. This term, in a statute, signifies,
not duration of time, but a period for the happening of an event; once in every two years. People
v. Tremain, 9 Hun (N.Y.) 576; People v. Kilbourn,
68 N.Y. 479.
BIENS. In English law. Property of every description, except estates of freeho\d and inheritance. Sugd.Vend. 495; Co.Litt. 119b.
In French law. This term includes all kinds
of property, real and personal. Biens are divided
into biens meubles, movable property; and biens
immeubles, immovable property. The distinction
between movable and immovable property is recognized by the continental jurists, and gives rise,
in the civil as well as in the common law, to many
important distinctions as to rights and remedies.
Story, Confl.Laws, § 13, note 1. Castle v. Castle,
C.C.A.Hawaii, 267 F. 521, 523.
BIGA, or BIGATA. A cart or chariot drawn with
two horses, coupled side to side; but it is said to
be properly a cart with two wheels, sometimes
drawn by one horse; and in the ancient records
it is used for any cart, wain, or wagon. Jacob.
BIGAMUS. In the civil law. A man who was
twice married; one who at different times and
successively has married two wives. 4 Inst. 88.
One who has two wives living. One who marries
a widow.
Used in ecclesiastical matters as a reason for
denying benefit of the clergy. Termes de la Ley.
BIGAMUS SEU TRIGAMUS, ETC., EST QUI DIVERSIS TEMPORIBUS ET SUCCESSIV1 DUAS
SEU TRES UXORES HABUIT. 4 Inst. 88. A bigamus or trigamus, etc., is one who at different
times and successively has married two or three
wives.
The offense of having a plurality of wives at the same
ti me is commonly denominated "polygamy;" but the name
"bigamy" has been more fre q uently given to it in legal
proceedings. 1 Russ.Crimes, 185.
The use of the word "bigamy" to describe this offense is
well established by long usage, although often criticized as
a corruption of the true meaning of the word. Polygamy
is suggested as the correct term, instead of bigamy, to
designate the offense of having a plurality of wives or husbands at the same time, and has been adopted for that
purpose in the Massachusetts statutes. But as the substance of the offense is marrying a second time, while
having a lawful husband or wife living, without regard to
the number of marriages that may have taken place, bigamy seems not an inappropriate term. The objection to
Its use urged by Blackstone (4 Bl.Comm. 163) seems to be
founded not so much upon considerations of the etymology
of the word as upon the propriety of distinguishing the ecclesiastical offense termed "bigamy" in the canon law, and
which is defined below, from the offense known as "bigamy" in the modern criminal law. The same distinction is
carefully made by Lord Coke, (4 Inst. 88.) But, the ecclesiastical offense being now obsolete, this reason for substituting polygamy to denote the crime here defined ceases to have weight. Abbott.
In the canon law, the term denoted the offense
committed by an ecclesiastic who married two
wives successively. It might be committed either
by marrying a second wife after the death of a
first or by marrying a widow.
BIGOT. An obstinate person, or one that is wedded to an opinion, in matters of religion, etc.
BILAGINES. By-laws of towns; municipal laws.
BILAN. A term used in Louisiana, derived from
the French. A book in which bankers, merchants,
and traders write a statement of all they owe and
all that is due them; a balance-sheet. See Dauphin v. Soulie, 3 Mart. (N.S.) 446.
BILANCIIS DEFERENDIS. In English law. An
obsolete writ addressed to a corporation for the
carrying of weights to such a haven, there to
weigh the wool anciently licensed for transportation. Reg.Orig. 270.
BILATERAL CONTRACT. A term, used originally in the civil law, but now generally adopted, denoting a contract in which both the contracting
parties are bound to fulfill obligations reciprocally
towards each other; as a contract of sale, where
one becomes bound to deliver the thing sold, and
the other to pay the price of it. Montpelier Seminary v. Smith, 69 Vt. 382, 38 A. 66. A contract
executory on both sides, National Surety Co. v.
City of Atlanta, 102 S.E. 175, 176, 24 Ga.App. 732,
and one which includes both rights and duties
on each side, Crane Ice Cream Co. v. Terminal
Freezing & Heating Co., 147 Md. 588, 128 A. 280,
282, 39 A.L.R. 1184. One containing mutual promises between parties; each party being both promisor and promisee. Aden v. Dalton, 341 Mo. 454,
107 S.W.2d 1070, 1073.
BIGAMY. The criminal offense of willfully and
knowingly contracting a second marriage (or going through the form of a second marriage) while
the first marriage, to the knowledge of the offender, is still subsisting and undissolved. Scoggins v. State, 32 Ark. 213; People v. Manfredonio,
"Every convention properly so called consists of a prom191 N.Y.S. 748, 117 Misc. 632, 39 N.Y.Cr.R. 41.
ise or mutual promises proffered and accepted. Where one
The state of a man who has two wives, or of a
only of the agreeing parties gives a promise, the convention is said to be 'unilateral.' Wherever mutual promises
woman who has two husbands, living at the same
are
proffered and accepted, there are, in strictness, two
time. State v. Lindsey, 26 N.M. 526, 194 P. 877.
or more conventions. But where the performance of eithFarewell v. Commonwealth, 189 S.E. 321, 323, 167
er of the promises is made to depend on the performance
Va. 475.
of the other, the several conventions are commonly deemed
206
BILL
one convention and the convention is then said to be 'bilateral.' " Aust.Jur. § 308.
See, also, Contract.
BILBOES. A device used for punishment at sea,
similar to the stocks (q. v.) on land.
BILGED. In admiralty law and marine insurance. That state or condition of a vessel in which
water is freely admitted through holes and
breaches made in the planks of the bottom, occasioned by injuries, whether the ship's timbers are
broken or not. Peele v. Insurance Co., 3 Mason,
27, 39, 19 Fed.Cas. 103.
BILINE. A word used by Britton in the sense of
"collateral." En line biline, in the collateral line.
Britt, c. 119.
BILINGUIS. Of a double language or tongue;
that can speak two languages. A term applied in
the old books to a jury composed partly of Englishmen and partly of foreigners, which, by the
English law, an alien party to a suit is, in certain
cases, entitled to; more commonly called a "jury
de medietate linguce." 3 Bl.Comm. 360; 4 Steph.
Comm. 422.
BILL. A formal declaration, complaint, or statement of particular things in writing.
As a legal term, this word has many meanings
and applications, the more important of which are
enumerated below.
1. A formal written statement of complaint
to a court of justice
In the ancient practice of the court of king's
bench, the usual and orderly method of beginning
an action was by a bill, or original bill, or plaint.
This was a written statement of the plaintiff's
cause of action, like a declaration or complaint,
and always alleged a trespass as the ground of it,
in order to give the court jurisdiction. 3 Bl.Comm.
43.
In Scotch law, every summary application in
writing, by way of petition to the Court of Session, is called a "bill." Cent. Dict.
—Bill chamber. In Scotch law. A department of
the court of session in which petitions for suspension, interdict, etc., are entertained. It is
equivalent to sittings in chambers in the English
and American practice. Paters. Comp.
—Bill of privilege. In old English law. A method
of proceeding against attorneys and officers of the
court not liable to arrest. 3 Bl.Comm. 289.
—Bill of Middlesex. An old form of process similar to a capias, issued out of the court of king's
bench in personal actions, directed to the sheriff
of the county of Middlesex, (hence 'the name,)
and commanding him to take the defendant and
have him before the king at Westminster on a
day named, to answer the plaintiff's complaint.
3. A formal written petition
To a superior court for action to be taken in a
cause already determined, or a record or certified
account of the proceedings in such action or some
portion thereof, accompanying such a petition.
—Bill of advocation. In Scotch practice. A bill
by which the judgment of an inferior court is appealed from, or brought under review of a superior. Bell.
—Bill of certiorari. A bill: the object of which is
to remove a suit in equity from some inferior
court to the court of chancery, or some other superior court of equity, on account of some alleged
incompetency of the inferior court, or some injustice in its proceedings. Story, Eq.P1. (5th Ed.) §
298.
—Bill of evidence. Stenographer's transcript of
testimony heard at trial and may be considered on
appeal as bill of exceptions. Spencer v. Commonwealth, 250 Ky. 370, 63 S.W.2d 288.
—Bill of exceptions. A formal statement in writing of the objections or exceptions taken by a
party during the trial of a cause to the decisions,
rulings, or instructions of the trial judge, stating
the objection, with the facts and circumstances on
which it is founded, and, in order to attest its
accuracy, signed and sealed by the judge; the
object being to put the controverted rulings or
decisions upon the record for the information of
the appellate court. Buessel v. U. S., C.C.A.Conn.,
258 Fla. 811, 815.
It is designed to preserve and make a part of the record
proceedings not otherwise of record. Yott v. Yott, 100 N.
E. 902, 903, 257 Iii. 419; It is only that part of the proceedings not embraced in the judgment roll. When the ends of
justice require it, the terms "bill of exceptions" and
"statement of case" are regarded as synonymous; Shawnee Commercial College v. Aydelotte, 38 P.2d 579, 581, 170
Okl. 15.
"Bill of exceptions" and "transcripts of evidence," however, are clearly distinguishable. The latter may contain
no objection or exception, and nothing other than the evidence introduced on the trial; the former is, strictly
speaking, only a record which points out alleged errors
committed below in relation to evidence as well as other
things. Broadway & Newport Bridge Co. v. Commonwealth, 173 Ky. 165, 190 S.W. 715, 719.
4. In equity practice
A formal written complaint, in the nature of a
petition, addressed by a suitor in chancery to the
chancellor or to a court of equity or a court having
equitable jurisdiction, showing the names of the
parties, stating the facts which make up th. , case
2. A species of writ
and the complainant's allegations, averring that
the acts disclosed are contrary to equity, and payA formal written declaration by a court to its
ing for process and for specific relief, or for such
officers, in the nature of process.
207
—Bill of proof. In English practice. The name
given, in the mayor's court of London, to a species
of intervention by a third person laying claim to
the subject-matter in dispute between the parties
to a suit.
BILL
relief as the circumstances demand. Sharon v.
Sharon, 67 Cal. 185, 7 P. 456.
—Bill for a new trial. A bill in equity in which
the specific relief asked is an injunction against
the execution of a judgment rendered at law, and
a new trial in the action, on account of some fact
which would render it inequitable to enforce the
judgment, but which was not available to the
party on the trial at law, or which he was prevented from presenting by fraud or accident, without concurrent fraud or negligence on his own
part.
—Bill for foreclosure. One which is filed by a
mortgagee against the mortgagor, for the purpose
of having the estate sold, thereby to obtain the
sum mortgaged on the premises, with interest and
costs. 1 Madd.Ch.Pr. 528.
—Bill for fraud. The object and effect of it, even if
the fraud consists of want of notice, are to vacate
the former decree, not to retry the case. Caldwell
v. Huffstutter, 173 Tenn. 225, 116 S.W.2d 1017, 1019.
—Bill in aid of execution. A bill to set aside encumbrances or conveyances therein specified as
fraudulent. Pape v. Pareti, 42 N.E.2d 361, 364, 315
Ill.App. 1 ; Dean v. Torrence, 299 N.W. 793, 796, 299
Mich. 24.
—Bill in nature of a bill of review. A bill in
equity, to obtain a re-examination and reversal of
a decree, filed by one who was not a party to the
original suit, nor bound by the decree.
—Bill in nature of a bill of revivor. Where, on
the abatement of a suit, there is such a transmission of the interest of the incapacitated party that
the title to it, as well as the person entitled, may
be the subject of litigation in a court of chancery,
the suit cannot be continued by a mere bill of
revivor, but an original bill upon which the title
may be litigated must be filed. This is called a
"bill in the nature of a bill of revivor." It is
founded on privity of estate or title by the act of
the party. And the nature and operation of the
whole act by which the privity is created is open
to controversy. Story, Eq.P1. §§ 378-380; 2 Amer.
& Eng.Enc.Law, 271.
—Bill in nature of a supplemental bill. A bill
filed when new parties, with new interests, arising
from events happening since the suit was commenced, are brought before the court; wherein it
differs from a supplemental bill, which is properly
applicable to those cases only where the same
parties or the same interests remain before the
court. Story, Eq.P1. (5th Ed.) § 345 et seq.
—Bill in nature of interpleader. See Bill of Interpleader.
—Bill of conformity. One filed by an executor or
administrator, who finds the affairs of the deceased so much involved that he cannot safely
administer the estate except under the direction of
a court of chancery. This bill is filed against the
creditors, generally, for the purpose of having all
their claims adjusted, and procuring a final decree settling the order of payment of the assets.
1 Story, Eq.Jur. § 440.
—Bill of discovery. A proceeding by a party
against an adversary for discovery of facts within
adversary's knowledge, or discovery of documents,
writings, or other things within his possession or
power, to be used either offensively or defensively
in a pending or contemplated action. Dallas Joint
Stock Land Bank v. Rawlins, Tex.Civ.App., 129 S.
W.2d 485, 486; First Nat. Bank v. Dade-Broward
Co., 171 So. 510, 125 Fla. 594.
In aid of action at law is equitable remedy to enable
litigant to obtain, prior to trial, such information as is in
exclusive possession of adverse party and is necessary to
establishment of complainant's case. Yorkshire Worsted
Mills v. National Transit Co., 325 Pa. 427, 190 A. 897, 898.
—Bill of information. Where a suit is instituted
on behalf of the crown or government, or of those
of whom it has the custody by virtue of its prerogative, or whose rights are under its particular
protection, the matter of complaint is offered to
the court by way of information by the attorney
or solicitor general, instead of by petition. Where
a suit immediately concerns the crown or government alone, the proceeding is purely by way of
information, but, where it does not do so immediately, a relator is appointed, who is answerable
for costs, etc., and, if he is interested in the matter in connection with the crown or government,
the proceeding is by information and bill. Informations differ from bills in little more than
name and form, and the same rules are substantially applicable to both. 3 Bl.Comm. 261.
—Bill of interpleader. The name of a bill in equity
to obtain a settlement of a question of right to
money or other property adversely claimed, in
which the party filing the bill has no interest, although it may be in his hands, by compelling such
adverse claimants to litigate the right or title between themselves, and relieve him from liability
or litigation. Republic Casualty Co. v. Fischmann,
99 N.J.Eq. 758, 134 A. 179, 180.
—Bill of peace. One which is filed when a person
has a right which may be controverted by various
persons, at different times, and by different actions. Smith v. Cretors, 164 N.W. 338, 340, 181
Iowa 189.
—Bill of review. One which is brought to have
a decree of the court reviewed, corrected, or reversed. Dodge v. Northrop, 85 Mich. 243, 48 N.W.
505. It is in the nature of a writ of error. Rubin
v. Midlinsky, 327 Ill. 89, 158 N.E. 395.
It is equitable procedure to procure explanation, altera-
tion, or reversal of final decree by court which rendered it.
People v. Sterling, 357 Ill. 354, 192 N.E. 229, 234.
The object of a "bill of review" and of a bill in nature
of a bill of review in the old chancery practice was to procure a reversal, modification, or explanation of a decree
in a former suit. Barz v. Sawyer, 159 Iowa 481, 141 N.W.
319, 321.
208
BILL
ing the matters in question in the original bill.
Story, Eq.P1. § 389; Mitf.Eq.P1. 80.
A "bill of review," or a bill in the nature of a bill of
review, are of three classes; those for error appearing on
the face of the record, those for newly discovered evidence,
and those for fraud impeaching the original transaction.
Moore v. Shook, 276 Ill. 47, 114 N.E. 592, 593. Such bills
are peculiar to courts of equity at common law. Satterwhite v. State, 149 Ark. 147, 231 S.W. 886, 887.
—Bill of revivor. One which is brought to continue a suit which has abated before its final consummation, as, for example, by death, or marriage
of a female plaintiff. Brooks v. Laurent, C.C.A.
Fla., 98 F. 647, 39 C.C.A. 201.
—Bill of revivor and supplement. One which is
a compound of a supplemental bill and bill of
revivor, and not only continues the suit, which
has abated by the death of the plaintiff, or the
like, but supplies any defects in the original bill
arising from subsequent events, so as to entitle
the party to relief on the whole merits of his case.
Westcott. Bowie v. Minter, 2 Ala. 411.
—Bill quia timet. A bill invoking the aid of
equity "because he fears," that is, because the
complainant apprehends an injury to his property
rights or interests, from the fault or neglect of
another. Bisp.Eq. § 568; 2 Story, Eq.Jur. § 826.
Such bills are entertained to guard against possible or
prospective injuries, and to preserve the means by which
existing rights may be protected from future or contingent
violations; differing from injunctions, in that the latter
correct past and present or imminent and certain injuries.
De Carli v. O'Brien, 41 P.2d 411, 416, 150 Or. 35, 97 A.L.R.
693.
—Bill to carry a decree into execution. One which
is filed when, from the neglect of parties or some
other cause, it may become impossible to carry a
decree into execution without the further decree of
the court. Hind, Ch.Pr. 68; Story, Eq.P1. § 42.
—Bill to perpetuate testimony. A bill in equity
filed in order to procure the testimony of witnesses
to be taken as to some matter not at the time before the courts, but which is likely at some future
time to be in litigation. Story, Eq.P1. (5th Ed.) §
300 et seq.
—Bill to quiet possession and title. Also called a
bill to remove a cloud on title (q. v.), and though
sometimes classed with bills quia timet or for the
cancellation of void instruments, they may be
resorted to in other cases when the complainant's
title is clear and there is a cloud to be removed;
Maguire v. City of Macomb, 293 Ill. 441, 127 N.E.
682, 686.
—Bill to suspend a decree. One brought to avoid
or suspend a decree under special circumstances.
—Bill to take testimony de bene esse. One which
is brought to take the testimony of witnesses to a
fact material to the prosecution of a suit at law
which is actually commenced, where there is good
cause to fear that the testimony may otherwise be
lost before the time of trial. 2 Story, Eq.Jur. §
1813, n.
—Cross-bill. One which is brought by a defendant
in a suit against a plaintiff in or against other defendants in the same suit, or against both, touchBlack's Law Dictionary Revised 4th Ed.-14
It is a bill brought by a defendant against a plaintiff, or
other parties in a former bill depending, touching the
matter in question in that bill. It is usually brought either to obtain a necessary discovery of facts in aid of the defense to the original bill, or to obtain full relief to all parties in reference to the matters of the original bill. It is to
be treated as a mere auxiliary suit. Kidder v. Barr, 35 N.
H. 251; Blythe v. Hinckley, C.C.Cal., 84 F. 234. A species
of pleading, used for the purpose of obtaining a discovery
necessary to the defense, or to obtain some relief founded
on the collateral claims of the party defendant to the original suit. Tison v. Tison, 14 Ga. 167. Also, if a bill of exchange or promissory note be given in consideration of
another bill or notice, it is called a "cross" or "counter"
bill or note. Landon v. Public Utilities Commission of
Kansas, D.C.Kan., 234 F. 152, 167.
—Supplemental bill. A bill to bring before the
court matters arising after the filing of the original bill or not then known to complainant. Puget
Sound Power & Light Co. v. City of Seattle, C.C.
A.Wash., 5 F. (2d) 393. See Bill in nature of a
supplemental bill.
5. In legislation and constitutional law
The word means a draft of an act of the legislature before it becomes a law; a proposed or
projected law. A draft of an act presented to the
legislature, but not enacted. Hubbard v. Lowe, D.
C.N.Y., 226 F. 135, 137. Also a special act passed
by a legislative body in the exercise of a quasi
judicial power. Scudder v. Smith, 331 Pa. 165,
200 A. 601, 604.
The word "bill" may mean the bill as it is first introduced in one of the houses of the legislature, or it may refer to it at any time in any of its stages until finally
passed. People v. Brady, 262 Ill. 578, 105 N.E. 1, 4. An
act is the appropriate term for it, after it has been acted
on by, and passed by, the legislature. Herbring v. Brown,
92 Or. 176, 180 P. 328, 330. Thus, bills of attainder, bills
of pains and penalties, are spoken of.
—Bill of attainder. See Attainder.
—Bill of indemnity. ' In English law. An act of
parliament, passed every session until 1869, but
discontinued in and after that year, as having
been rendered unnecessary by the passing of the
promissory oaths act, 1868, for the relief of those
who have unwittingly or unavoidably neglected to
take the necessary oaths, etc., required for the
purpose of qualifying them to hold their respective
offices. Wharton.
—Bill of pains and penalties. A special act of the
legislature which inflicts a punishment, less than
death, upon persons supposed to be guilty of
treason or felony, without any conviction in the
ordinary course of judicial proceedings.
It differs from a bill of attainder in this : that the pun-
ishment inflicted by the latter is death.
—Private bill. One dealing only with a matter of
private personal or local interest. Lowell, Gov.
of Eng. 266.
All legislative bills which have for their object some particular or private interest are so termed, as distinguished
from such as are for the benefit of the whole community,
which are thence termed "public bills." People v. Chautauqua County, 43 N.Y. 17.
—Private bill office. See Private.
209
BILL
—Private member's bill. One of a public nature
introduced by a private member;—distinguished
from a private bill, which is one dealing only with
a matter of private .personal or local interest.
Lowell, Gov. of Eng. 266.
As a verb, as generally and customarily used in
commercial transactions, "bill" is synonymous
with "charge" or "invoice." George M. Jones Co.
v. Canadian Nat. R. Co., D.C.Mich., 14 F.2d 852,
855.
6. A solemn and formal legislative declaration
of popular rights and liberties
Promulgated on certain extraordinary occasions, as the famous Bill of Rights in English
history.
—Bill-book. In mercantile law. A book in which
an account of bills of exchange and promissory
notes, whether payable or receivable, is stated.
—Bill of rights. A formal and emphatic legislative
assertion and declaration of popular rights and
liberties usually promulgated upon a change of
government; particularly the statute 1 W. & M.
St. 2, c. 2. Also the summary of the rights and
liberties of the people, or of the principles of constitutional law deemed essential and fundamental,
contained in many of the American state constitutions. Hamill v. Hawks, C.C.A.Okl., 58 F.2d 41, 47.
That portion of Constitution guaranteeing rights
and privileges to the individual. Brown v. State,
219 Ind. 251, 37 N.E.2d 73, 77, 137 A.L.R. 679.
7. In the law of contracts
An obligation; a deed, whereby the obligor acknowledges himself to owe to the obligee a certain sum of money or some other thing. It may
be indented or poll, and with or without a penalty.
—Bill obligatory. A bond absolute for the payment of money. It is called also a "single bill,"
and differs from a promissory note only in having
a seal. See Bill penal. Bank v. Greiner, 2 Serg.
& R. (Pa.) 115.
—Bill of debt. An ancient term including promissory notes and bonds for the payment of money.
Com.Dig. "Merchant," F. 2.
—Bill penal. A written obligation by which a
debtor acknowledges himself indebted in a certain
sum, and binds himself for the payment thereof,
in a larger sum, called a "penalty." Bonds with
conditions have superseded such bills in modern
practice. They are sometimes called bills obligatory, and are properly so called; but every bill
obligatory is not a bill penal. Comyns, Dig. Obligations, D; Cro.Car. 515. See 2 Ventr. 106, 198.
—Bill single. A written promise to pay to a person or persons named a stated sum at a stated
time, without any condition. When under seal, as
is usually the case, it is sometimes called a "bill
obligatory," ( q. v.) It differs from a "bill penal,"
( q. v.) in that it expresses no penalty.
—Bill-head. A printed form on which merchants
and traders make out their bills and render accounts to their customers.
—Bill of lading. In common law. The written
evidence of a contract for the carriage and delivery of goods sent by sea for a certain freight.
Mason v. Lickbarrow, 1 H.B1. 359. A written
memorandum, given by the person in command of
a merchant vessel, acknowledging the receipt on
board the ship of certain specified goods, in good
order or "apparent good order," which he undertakes, in consideration of the payment of freight,
to deliver in like good order (dangers of the
sea excepted) at a designated place to the consignee therein named or to his assigns. Devato v.
Barrels, D.C.N.Y., 20 Fed. 510.
The term is often applied to a similar receipt and undertaking given by a carrier of goods by land. A bill of lading is an instrument in writing, signed by a carrier or his
agent, describing the freight so as to identify it, stating
the name of the consignor, the terms of the contract for
carriage, and agreeing or directing that the freight be delivered to the order or assigns of a specified person at a
specified place. See Civil Code Cal. § 2126a; Aman v.
Dover & Southbound R. Co., 179 N. C. 310, 102 S.E. 392, 393;
Rudin v. King-Richardson Co., 143 N.E. 198, 201, 311. Ill.
513. It is receipt for goods, contract for their carriage, and
is documentary evidence of title to goods. Schwalb v. Erie
R. Co., 293 N.Y.S. 842, 846, 161 Misc. 743.
A clean bill of lading is one which contains
nothing in the margin qualifying the words in the
bill of lading itself. 61 Law T. 330; Creery v.
Holly, 14 Wend. (N.Y.) 26; Sayward v. Stevens, 3
Gray (Mass.) 97.
An order bill of lading is one in which it is
stated that goods are consigned to order of any
person named therein. F. L. Shaw Co. v. Coleman, Tex.Civ.App., 236 S.W. 178, 180.
A straight bill of lading is one in which it is
stated that goods are consigned to a specified person. Atlantic Coast Line R. Co. v. Roe, 91 Fla.
762, 109 So. 205, 207.
A through bill of lading is one by, which a railroad contracts to transport over its own line for a
certain distance carloads of merchandise or stock,
there to deliver the same to its connecting lines to
be transported to the place of destination at a
fixed rate per carload for the whole distance.
Gulf, C. & S. F. R. Co. v. Vaughn, 4 Willson, Ct.
App.Tex. § 182, 16 S.W. 775.
8. In commercial law
A written statement of the terms of a contract,
or specification of the items of a transaction or
of a demand; also a general name for any item
—Bill of parcels. A statement sent to the buyer
of indebtedness, whether receivable or payable.
of goods, along with the goods, exhibiting in detail the items composing the parcel and their sevAccounts for goods sold, services rendered, or
eral prices, to enable him to detect any mistake or
work done. Newman v. San Antonio Traction Co.,
omission; an invoice.
Tex.Civ.App., 155 S.W. 688, 690.
210
BILL
—Bill of sale. In contracts. A written agreement,
formerly limited to one under seal, by which one
person assigns or transfers his right to or interest
in goods and personal chattels to another. Wilson.
v. Voche, 172 S.E. 672, 48 Ga.App. 173. An instrument by which, in particular, the property in
ships and vessels is conveyed. Young v. Stone,
70 N.Y.S. 558, 61 App.Div. 364. See Grand bill of
sale, infra.
—Bill payable. In a merchant's accounts, all bills
which he has accepted, and promissory notes which
he has made, are called "bills payable," and are
entered in a ledger account under that name, and
recorded in a book bearing the same title. See
West Virginia Pulp & Paper Co. v. Karnes, 137 Va.
714, 120 S.E. 321, 322.
—Bill receivable. In a merchant's accounts, all
notes, drafts, checks, etc., payable to him, or of
which he is to receive the proceeds at a future
date, are called "bills receivable," and are entered
in a ledger-account under that name, and also
noted in a book bearing the same title. State v.
Robinson, 57 Md. 501. Miami Coal Co. v. Fox, 203
Ind. 99, 176 N.E. 11, 16, 79 A.L.R. 333.
—Bill rendered. A bill of items rendered by a
creditor to his debtor; an "account rendered," as
distinguished from "an account stated." Hill v.
Hatch, 11 Me. 455.
—Grand bill of sale. In English law. The name
of an instrument used for the transfer of a ship
while she is at sea. An expression which is understood to refer to the instrument whereby a ship
was originally transferred from the builder to the
owner, or first purchaser. 3 Kent, Comm. 133.
9. In the law of negotiable instruments
A promissory obligation for the payment of
money.
Standing alone or without qualifying words, the
term is understood to mean a bank note, United
States treasury note, or other piece of paper circulating as money. Green v. State, 28 Tex.App.
493, 13 S.W. 785.
—Bill of credit. In constitutional law. A bill or
promissory note issued by the government of a
state or nation, upon its faith and credit, designed
to circulate in the community as money, and redeemable at a future day. Hale v. Huston, 44 Ala.
138, 4 Am.Rep. 124. In mercantile law. A license
or authority given in writing from one person to
another, very common among merchants, bankers, and those who travel, empowering a person to
receive or take up money of their correspondents
abroad.
that third person may order it to be paid, or it
may be payable to bearer or to the drawer himself. 1 Daniel, Neg.Inst. 27.
An unconditional order in writing addressed by one person to another, signed by the person giving it, requiring
the person to whom it is addressed to pay on demand or at
a fixed or determinable future time a sum certain in money
to order or to bearer. Clayton Town-Site Co. v. Clayton
Drug Co., 147 P. 460, 20 N.M. 185; Smythe v. Sanders, 101
So. 435, 436, 136 Misc. 382; Sometimes called a "trade acceptance." Jones v. Revere Preserving Co., 247 Mass. 225,
142 N.E. 70, 71.
A "check" differs from a "bill of exchange" in that it is
always drawn on a deposit whereas a bill is not. Wilson
v. Buchenau, D.C.Cal., 43 F.Supp. 272, 275.
—Domestic bill of exchange. A bill of exchange
drawn on a person residing in the same state with
the drawer; or dated at a place in the state, and
drawn on a person living within the state. It is
the residence of the drawer and drawee which
must determine whether a bill is domestic or
foreign. Ragsdale v. Franklin, 25 Miss. 143. See,
also, Inland bill of exchange.
—Foreign bill of exchange. A bill of exchange
drawn in one state or country, upon a foreign state
or country. See Story, Bills, § 22; 3 Kent, Comm.
94, note.
A bill of exchange drawn in one country upon another
country not governed by the same homogeneous laws, or
not governed throughout by the same municipal laws. A
bill of exchange drawn in one of the United States upor
a person residing in another state Is a foreign bill.
—Inland bill of exchange. One of which the
drawer and drawee are residents of the same state
or country. Miller v. American Gold Mining Co.,
3 Alaska, 1. See Domestic bill of exchange.
10. In maritime law
The term is applied to contracts of various
sorts, but chiefly to bills of lading and to bills of
adventure.
—Bill of adventure. A written certificate by a
merchant or the master or owner of a ship, to the
effect that the property and risk in goods shipped
on the vessel in his own name belong to another
person, to whom he is accountable for the proceeds
alone.
—Bill of gross adventure. In French maritime
law. Any written instrument which contains a
contract of bottomry, respondentia, or any other
kind of maritime loan. There is no corresponding
English term. Hall, Marit. Loans, 182, n.
—Bill of health. An official certificate, given by
the authorities of a port from which a vessel
clears, to the master of the ship, showing the state
of the port, as respects the public health, at the
time of sailing, and exhibited to the authorities of
the port which the vessel next makes, in token
that she does not bring disease.
—Bill of exchange. A written order from A. to
B., directing B. to pay to C. a certain sum of money therein named. Byles, Bills, 1. An open ( that
is, unsealed) letter addressed by one person to
If the bill alleges that no contagious or infectious disease
another directing him, in effect, to pay, absolutely existed,
it is called a "clean" bill; if it admits that one
and at all events, a certain sum of money therein
was suspected or anticipated, or that one actually prevailed, it is called a "touched" or a "foul" bill.
named, to a third person, or to any other to whom
211
BILL
11. In revenue law and procedure
The term is given to various documents filed in
or issuing from a custom house, principally of the
sorts described below.
—Bill of entry. An account of the goods entered
at the custom-house, both incoming and outgoing.
It must state the name of the merchant exporting
or importing, the quantity and species of merchandise, and whither transported, and whence.
—Bill of sight. When an importer of goods is
ignorant of their exact quantity or quality, so that
he cannot make a perfect entry of them, he may
give to the customs officer a written description
of them, according to the best of his information
and belief. This is called a "bill of sight."
—Bill of store. In English law. A kind of license
granted at the custom-house to merchants, to carry
such stores and provisions as are necessary for
their voyage, custom free. Jacob.
—Bill of sufferance. In English law. A license
granted at the custom-house to a merchant, to
suffer him to trade from one English port to another, without paying custom. Cowell.
12. In criminal law
A bill of indictment, see infra.
—Bill of appeal. An ancient, but now abolished,
method of criminal prosecution. See Battel.
—Bill of indictment. A formal written document
accusing a person or persons named of having
committed a felony or misdemeanor, lawfully laid
before a grand jury for their action upon it. State
v. Ray, Rice (S.C.) 4, 33 Am.Dec. 90. See Presentment.
If the grand jury decide that a trial ought to be had,
they indorse on it "a true bill;" if otherwise, "not a true
bill" or "not found."
It is designed to aid the defendant in interposing the
proper answer and in preparing for trial, by giving him detailed information regarding the cause of action stated
in the complaint. Wetmore v. Goodwin Film & Camera Co.,
( D.C.) 226 F. 352, 353. It is neither a pleading nor proof
of the facts therein contained, Nilson v. Ebey Land Co., 90
Wash. 295, 155 P. 1036, and is not for the purpose of discovering evidence, nor to find what plaintiff knows, but
what he claims, Intermountain Ass'n of Credit Men v. Milwaukee Mechanics' Ins. Co., 44 Idaho 491, 258 P. 362, 363.
A bill of particulars is not designed to uphold an insufficient indictment, but to give accused fair notice of what he
is called on to defend. Clary v. Commonwealth, 163 Ky.
48, 173 S. W. 171, 173. People v. Bain, 359 Ill. 455, 195 N.E.
42.
14. In English law
A draft of a patent for a charter, commission,
dignity, office, or appointment.
Such a bill is drawn up in the attorney general's patent
bill office, is submitted by a secretary of state for the
King's signature, when it is called the "King's bill," and
is then countersigned by the secretary of state and sealed
by the privy seal, and then the patent is prepared and
sealed. Sweet.
For Exchequer Bills, see that title.
BILL OF MORTALITY. A written statement or
account of the number of deaths which have occurred in a certain district within a given time.
BILLA. L. Lat. A bill; an original bill.
BILLA CASSETUR, or QUOD BILLA CASSETUR.
(That the bill be quashed.) In practice. The
form of the judgment rendered for a defendant on
a plea in abatement, where the proceeding is by
bill; that is, where the suit is commenced by
capias, and not by original writ. 2 Archb.Pr.K.B.
4.
BILLA EXCAMBIL A bill of exchange.
BILLA EXONERATION'S. A bill of lading.
BILLA VERA. (A true bill.) In old practice.
The indorsement anciently made on a bill of indictment by a grand jury, when they found it
sufficiently sustained by evidence. 4 Bl.Comm.
306.
13. In common-law practice
BILLBOARD. An erection annexed to the land in
An itemized statement or specification of par- the nature of a fence for the purpose of posting
ticular details, especially items of cost or charge. . advertising bills and posters. Randall v. Atlanta
Advertising Service, 159 Ga. 217, 125 S.E. 462,
of costs. A certified, itemized statement of 463; Cochrane v. McDermott Advertising Agency,
the amount of costs in an action or suit. Doe v.
6 Ala.App. 121, 60 So. 421, 422.
Thompson, 22 N.H. 219.
BILLET. A soldier's quarters in a civilian's
By the English usage, this term is applied to the statement of the charges and disbursements of an attorney or
house; or the ticket which authorizes him to ocsolicitor incurred in the conduct of his client's business,
cupy them.
and which might be taxed upon application, even though
not incurred in any suit. Thus, conveyancing costs might
In French law. A bill or promissory note.
be taxed. Wharton.
Billet a ordre, a bill payable to order. Billet a
vue, a bill payable at sight. Billet de com—Bill of particulars. In practice. A written stateBillet de
plaisance, an accommodation bill.
ment or specification of the particulars of the dechange, an engagement to give, at a future time,
mand for which an action at law is brought, or of
a bill of exchange, which the party is not at the
a defendant's set-off against such demand, (intime prepared to give. Story, Bills, § 2, n.
cluding dates, sums, and items in detail,) furnished
by one of the parties to the other, either' volunBILLETA. In old English law. A bill or petition
tarily or in compliance with a judge's order for exhibited in parliament. Cowell.
that purpose. 1 Tidd, Pr. 596-600; 2 Archb.Pr.
BILLIARD TABLES. This term includes "pool
221; Ferguson v. Ashbell, 53 Tex. 250; Baldwin v.
tables" as used in statutes, since "pool tables" are
Gregg, 13 Metc. (Mass.) 255.
212
BISSEXTILE
billiard tables with pockets. Village of Atwood V.
Otter, 296 Ill. 70, 129 N.E. 573, 578.
83 W.Va. 401, 98 S.E. 441, 443; Seiderman v. Herman Perla, Inc., 268 N.Y. 188, 197 N.E. 190, 191.
BILLY. A small bludgeon that may be carried
in the pocket; a club; especially, a policeman's
dub. Cent. Dict.; Webster, New Intl. Dict.
BINOCULAR VISION. The vision of the two eyes
acting together, used in determining depth, width,
distance, and comparative placing of different objects; distinguished from "field vision," meaning
the general vision used in catching in sight, and
following and locating objects. Gigleo v. Dorfman
& Kimia y sky, 106 Conn. 401, 138 A. 448, 450.
RI-METALLIC. Pertaining to, or consisting of,
two metals used as money at a fixed relative
value.
BI-METALLISM. The legalized use of two metals
in the currency of a country at a fixed relative
value.
BIND. To obligate; to bring or place under definite duties or legal obligations, particularly by a
bond or covenant; to affect one in a constraining
or compulsory manner with a contract or a judgment. Stone v. Bradbury, 14 Me. 193.
So long as a contract, an adjudication, or a legal relation remains in force and virtue, and continues to impose
duties or obligations, it is said to be "binding." A man is
bound by his contract or promise, by a judgment or dt,cree against him, by his bond or covenpnt, by an estoppel,
etc.
BIND OUT. To place one under a legal obligation
to serve another; as to bind out an apprentice.
BINDER. The memorandum of an agreement for
insurance, intended to give temporary protection
pending investigation of the risk and issuance of a
formal policy. Seiderman v. Herman Perla Inc.,
268 N.Y. 188, 197 N.E. 190, 191.
A verbal contract of insurance in prsenti, of which the
insurance agent makes a memorandum, temporary in its
nature, Norwich Union Fire Ins. Society v. Dalton, Tex.
Civ.App., 175 S.W. 459, 460; thus constituting a short
method of issuing a temporary policy to continue until
execution of the formal one, Sherri v. National Surety Co.,
243 N.Y. 266, 153 N.E. 70, 71. Carew, Shaw & Bernaseoni
v. General Casualty Co. of America, 189 Wash. 329, 65 P.2d
689, 695.
A "binder" as used in marine insurance is an
application for insurance made on behalf of the
proposed insured and approved by the insurer or
his agent. Muller v. Globe & Rutgers Fire Ins.
Co. of City of New York, C.C.A.N.Y., 246 F. 759,
-760.
BINDING INSTRUCTION. One in which jury is
told if they find certain conditions to be true to
find for plaintiff or defendant, as case might be.
Scott-Burr Stores Corporation v. Foster, 197 Ark.
232, 122 S.W.2d 165, 169.
BINDING OVER. The act by which a court or
magistrate requires a person to enter into a recognizance or furnish bail to appear for trial, to keep
the peace, to attend as a witness, etc.
BINDING RECEIPT OR SLIP. Is a limited acceptance of an application for insurance given by
an authorized agent pending the ascertainment of
the company's willingness to assume the burden
of the proposed risk, the effect of which is to
protect the applicant until the company acts upon
the application, and, if it declines to accept the
burden, the binding effect of the slip ceases eo
instante. Hanauer v. Fire Ass'n. of Philadelphia,
BIPARTITE. Consisting of, or divisible into, two
parts. A term in conveyancing descriptive of an
instrument in two parts, and executed by both
parties.
BIRRETUM, BIRRETUS. A cap or coif used
formerly in England by judges and serjeants at
law. Spelman.
BIRTH. The act of being born or wholly brought
into separate existence. Wallace v. State, 10 Tex.
App. 270.
BIS. Lat. Twice.
BIS DA.T QUI CITO DAT. He pays twice who
pays promptly.
BIS IDEM EXIGI BONA FIDES NON PATITUR;
ET IN SATISFACTIONIBUS NON PERMXTTITUR AMPLIUS FIERY QUAM SEMEL FACTUM
EST. Good faith does not suffer the same thing
to be demanded twice ; and in making satisfaction [for a debt or demand] it is not allowed to
be done more than once. 9 Coke, 53.
BISAILE (also BESAILE, BESAYEL, BESAYEL,
BESAYLE). The father of one's grandfather or
grandmother.
BISANTIUM, BESANTINE, BEZANT. An ancient
coin, first issued at Constantinople; it was of two
sorts,--gold, equivalent to a ducat, valued at 9s.
6d.; and silver, computed at 2s. They were both
current in England. Wharton.
RI-SCOT. In old Engish law. A fine imposed
for not repairing banks, ditches, and causeways.
BISHOP. In English law. An ecclesiastical dignitary, being the chief of the clergy within his
diocese, subject to the archbishop of the province
in which his diocese is situated. Most of the
bishops are also members of the House of Lords.
BISHOP'S COURT. In English law. An ecclesiastical court, held in the cathedral of each diocese,
the judge whereof is the bishop's chancellor, who
judges by the civil canon law; and, if the diocese
be large, he has his commissaries in remote parts,
who hold consistory courts, for matters limited to
them by their commission.
BISHOPRIC. In ecclesiastical law. The diocese
of a bishop, or the circuit in which he has jurisdiction; the office of a bishop. 1 Bl.Comm. 377382.
BISSEXTILE. The day which is added every
fourth year to the month of February, in order
to make the year agree with the course of the sun.
213
BISSEXTILE
By statute 21 Hen. III., the 28th and 29th of
February count together as one day. This statute
is in force in some of the United States. Porter v.
Holloway, 43 Ind. 35; Harker v. Addis, 4 Pa. 515.
BLACK BOOK OF THE ADMIRALTY. A book of
the highest authority in admiralty matters, generally supposed to have been compiled during the
reign of Edward III. with additions of a later
date. It contains the laws of Oleron, a view of
BITING RULE. When first taker of conveyed
property under writing submitted for construc- crimes and offenses cognizable in the admiralty,
and many other matters. See De Lovio v. Boit, 2
tion is initially conveyed a fee title, it is then inGall. 404, Fed.Cas.No.3,776.
competent and invalid to modify, qualify, or reduce
BLACK BOOK OF THE EXCHEQUER. The
thereafter the apparent fee title of the first taker
name of an ancient book kept in the English
so as to reduce it to a life estate, and any gift
exchequer, containing a collection of treaties, conover after death of first taker is void. Hanks v.
ventions, charters, etc.
McDanell, 210 S.W.2d 784, 786, 307 Ky. 243, 17
A.L.R.2d 1.
BLACK CAP. The head-dress worn by the judge
in pronouncing the sentence of death. It is part
BITULITHIC. Designating a kind of paving the
of the judicial full dress, and is worn by the judges
main body of which consists of broken stone
on occasions of especial state. Wharton.
cemented together with bitumen or asphalt. WashBLACK CODE. A name given collectively to the
burn v. Board of Com'rs of Shawnee County, 103
body of laws, statutes, and rules in force in various
Kan. 169, 172 P. 997, 998. Bituminous macadam
southern states prior to 1865, which regulated the
means bitulithic pavement. Washburn v. Board
institution of slavery, and particularly those forof Com'rs of Shawnee County, 103 Kan. 169, 172
bidding their reception at public inns and on public
P. 997, 998. See Bitumen.
conveyances. Civil Rights Cases, 3 S.Ct. 18, 109
BITUMEN. Mineral pitch; black, tarry substance
U.S. 3, 27 L.Ed. 835.
used in cements, in construction of pavements, BLACK GAME. In English law. Heath fowl, in
etc., and by extension, the term includes any one
contradistinction to red game, as grouse.
of natural hydrocarbons, including hard, solid,
BLACK LIQUOR. A term used in the paper pulp
brittle varieties called asphalt, semi-solid maitha
industry. It denotes a residual liquor coming
and mineral tars, oily petroleums, and light volatile
from the digesters in which wood chips are cooknaphthas. Western Willite Co. v. Trinidad Asphalt
ed. Babcock & Wilcox Co. v. North Carolina Pulp
Mfg. Co., C.C.A.Mo., 16 .F.2d 446, 448.
Co., D.C.Del., 35 F.Supp. 215, 221.
BITUMINOUS COAL. Bituminous coal is much
BLACK MARIA. A closed wagon or van in which
less hard than anthracite; it is dusty and dirty
prisoners are carried to and from the jail, or beand is commonly termed "soft coal." Bituminous
tween the court and the jail.
coal burns with more or less smoke while anthracite coal burns with practically no smoke. As the
BLACK MAT CABARETTA. A cross between a
fuel ratio of bituminous coal rises the coal is more
goatskin and a skin of some other animal. J. H.
soft; as the fuel ratio of anthracite coal rises the
Stockamore Leather Co. v. Duane Shoe Co., 187
coal is more hard. Commonwealth v. Hudson Coal
N.Y.S. 258, 195 App.Div. 947.
Co., 287 Pa. 64, 134 A. 413, 414. See Anthracite
BLACK MUSLIM. An organization of American
coal.
Negroes, founded in Detroit in 1930 by an American Negro calling himself Mohammad Elijah. To
BITUMINOUS MACADAM. Bitulithic pavement.
the traditional Koran the founders added the docWashburn v. Board of Com'rs of Shawnee County,
trine of Black Supremacy and proclaimed the
103 Kan. 169, 172 P. 997, 998. See Bitulithic.
desirability of maintaining ( or regaining) the
BLACK ACRE and WHITE ACRE. Fictitious purity of the black race. 62 Col.L.Rev. 1488 (1962)
names used by the old writers to distinguish one
75 Harv.L.Rev. 837 (1962) ; State v. Cubbage (Del.),
parcel of land from another, to avoid ambiguity,
210 A.2d 555 (1965).
as well as the inconvenience of a fuller description.
BLACK RENTS. In old English law. Rents reserved in work, grain, provisions, or baser money
BLACK ACT. The statute 9 Geo. I. c. 22, so called
than silver, in contradistinction to those which
because it was occasioned by the outrages commitwere reserved in white money or silver, which
ted by persons with their faces blacked or otherwere termed "white rents," (reditus albi,) or
wise disguised, who appeared in Epping Forest,
blanch farms. Tomlins; Whishaw. See Blacknear Waltham, in Essex, and destroyed the deer
mail.
there, and committed other offenses. Repealed by
7 & 8 Geo. IV, c. 27.
BLACK—ROD, GENTLEMAN USHER OF. In England, the title of a chief officer of the king, derivBLACK ACTS. Old Scotch statutes passed in the
ing his name from the Black Rod of office, on the
reigns of the Stuarts and down to the year 1586 or
top of which reposes a golden lion, which he
1587, so called because printed in black letter.
carries. During the session of Parliament he atBell.
tends on the peers, summons the Commons to the
House of Lords; and to his custody all peers imBLACK BOOK OF HEREFORD. In English law,
peached for any crime or contempt are first comAn old record frequently referred to by Cowell and
mitted.
other early writers.
214
BLANK
BLACK WARD. A subvassal, who held ward of
the king's vassal.
BLACKJACK. A short bludgeon consisting of a
heavy head, as of metal, on an elastic shaft or
with a flexible handle; a bludgeon-like weapon
consisting of a lead slug attached to a leather
thong; a small leather-covered club or billy
weighted at the head and having an elastic shaft.
5 Words and Phrases, Perm. Ed.
As a card game, another name for vingt-et-un
(twenty-one) ; also; a variety of hearts in which
the jack of spades counts as ten hearts. Webster,
New Intl. Dict.
BLACKLEG. A person who gets his living by
frequenting race-courses and places where games
of chance are played, getting the best odds, and
giving the least he can, but not necessarily cheating. That is not indictable either by statute or at
'common law. Barnett v. Allen, 3 Hurl. & N. 379.
In a later case it has been thought that "blackleg" ordinarily means a swindler, but does not mean a "scab" or
strike breaker, and that its use may be libelous per se.
United Mine Workers of America v. Cromer, 159 Ky. 605,
167 S. W. 891, 892.
BLACKLIST. A list of persons marked out for
special avoidance, antagonism, or enmity on the
part of those who prepare the list or those among
whom it is intended to circulate; as where a
trades-union "blacklists" workmen who refuse to
conform to its rules, or where a list of insolvent or
untrustworthy persons is published by a commercial agency or mercantile association. Quoted and
relied on in Dick v. Northern Pac. Ry. Co., 86
Wash. 211, 150 P. 8, 12, Ann.Cas.1917A, 638, holding
that this word is a generic term having no such
well-defined meaning in law as to make its use in
a pleading a definite charge of any specific misconduct against a person so charged. Cleary v.
Great Northern Ry. Co., 147 Minn. 403, 180 N.W.
545, 546; Masters v. Lee, 39 Neb. 574, 58 N.W.
222; Mattison v. Railway Co., 2 Ohio N.P. 279.
BLACKMAIL. In one of its original meanings,
this term denoted a tribute paid by English dwellers along the Scottish border to influential chieftains' of Scotland, as a condition of securing immunity from raids of marauders and border
thieves.
Also, rents payable in cattle, grain, work, and
the like. Such rents were called "blackmail,"
(reditus nigri,) in distinction from white rents,
(blanche firmes,) which were rents paid in silver.
See Black rents.
The extortion of money by threats or overtures
towards criminal prosecution or the destruction of
a man's reputation or social standing.
In common parlance, the term is equivalent to and synonymous with, "extortion,"—the exaction of money, either
for the performance of a duty, the prevention of an injury,
or the exercise of an influence. It supposes the service to
be unlawful, and the payment involuntary. Not infrequently it is extorted by threats, or by operating upon the
fears or the credulity, or by promises to conceal, or offers
to expose, the weaknesses, the follies, or the crimes of the
victim. Mitchell v. Sharon, C.C.Cal., 51 F. 424; In re
Mills, 104 Wash. 278, 176 P. 556, 562. "Blackmail" has a
broader meaning than the New York statutory crime of
blackmail, and denotes extortion in any mode by means
of intimidation, as the extortion of money by threats of
accusation or exposure, or of unfavorable criticism in the
press. Guenther v. Ridgway Co., 156 N.Y.S. 534, 535, 170
App. Div. 725.
BLACKSMITH SHOP. A place to which the people of a community resort for the purpose of having machinery and tools repaired and iron work
done. State v. Shumaker, 103 Kan. 741, 175 P.
978, 979.
BLADA. In old English law. Growing crops of
grain of any kind. Spelman. All manner of annual grain. Cowell. Harvested grain. Bract.
217b; Reg.Orig. 94b, 95.
BLADARIUS. In old English law. A cornmonger;
meal-man or corn-chandler; a bladier, or engrosser
of corn or grain. Blount.
BLANC SEIGN. In Louisiana, a paper signed at
the bottom by him who intends to bind himself,
give acquittance, or compromise, at the discretion
of the person whom he intrusts with such blanc
seign, giving him power to fill it with what he
may think proper, according to agreement. Musson v. U. S. Bank, 6 Mart.O.S. (La.) 718.
BLANCH HOLDING. An ancient tenure of the
law of Scotland, the duty payable being trifling,
as a penny or a pepper-corn, etc., if required;
similar to free and common socage.
BLANCHE FIRME. White rent; a rent reserved,
payable in silver.
BLANCUS. In old law and practice. White;
plain; smooth; blank.
BLANK. A space left unfilled in a written document, in which one or more words or marks are
to be inserted to complete the sense. Angle v.
Insurance Co., 92 U.S. 337, 23 L.Ed. 556.
Also a skeleton or printed form for any legal
document, in which the necessary and invariable
words are printed in their proper order, with blank
spaces left for the insertion of such names, dates,
figures, additional clauses, etc., as may be necessary to adapt the instrument to the particular case
and to the design of the party using it.
BLANK ACCEPTANCE. An acceptance of a bill
of exchange written on the paper before the bill
is made, and delivered by the acceptor.
BLANK BAR. Also called the "common bar."
The name of a plea in bar which in an action of
trespass is put in to oblige the plaintiff to assign
the certain place where the trespass was committed. It was most in practice in the common bench.
See Cro.Jac. 594.
BLANK BONDS. Scotch securities, in which the
creditor's name was left blank, and which passed
by mere delivery, the bearer being at liberty to put
in his name and sue for payment. Declared void
by Act 1696, c. 25.
BLANK INDORSEMENT. The indorsement of a
bill of exchange or promissory note, by merely
215
BLANKET
writing the name of the indorser, without mentioning any person to whom the bill or note is to be
paid; called "blank," because a blank or space is
left over it for the insertion of the name of the
indorsee, or of any subsequent holder. Otherwise
called an indorsement "in blank." 3 Kent, Comm.
89; Story, Prom. Notes, § 138.
BLANKET. In tariff acts: A heavy cover for a
bed or a horse, with a thick, soft nap on both sides.
Riley & Co. v. U. S., 8 Ct.Cust.App. 116, 118.
BLANKET POLICY. See Insurance—Blanket
Policy.
BLANKS. A kind of white money, (value 8d.,)
coined by Henry V. in those parts of France which
were then subject to England; forbidden to be
current in that realm by 2 Hen. VI. c. 9. Wharton.
BLASARIUS. An incendiary.
BLASPHEMY.
BLEES. In old English law. Grain; particularly
corn.
BLENCH, BLENCH HOLDING. See Blanch Holding.
BLENDED FUND. In England, where a testator
directs his real and personal estate to be sold, and
disposes of the proceeds as forming one aggregate,
this is called a "blended fund."
BLENDED PRICE. As applied to milk, a price
paid to producers based upon a pool average
weighted by the volume of milk disposed of, according to different types of utilization. Queensboro Farm Products v. State, 24 N.Y.S.2d 413, 417,
175 Misc. 574.
BLETA. An old name for peat or combustible
earth dug up and dried for burning. Wharton.
BLIND. The condition of one who is deprived of
the faculty of seeing.
In English Law
Blasphemy is the offense of speaking matter
relating to God, Jesus Christ, the Bible, or the
Book of Common Prayer, intended to wound the
feelings of mankind or to excite contempt and
hatred against the church by law established, or
to promote immorality. Sweet.
A voter is not "blind" within the meaning of Ky. St. §
1475, authorizing clerk to mark ballot for blind person, if
he has left his spectacles at home, but a person so devoid
of sight that he cannot see pencil mark made by clerk is
"blind." Smith v. Jones, 221 Ky. 546, 299 S.W. 170, 171.
One who by accident lost all vision except enough to enable
him to recognize a form without distinguishing its outlines is "blind" within the Workmen's Compensation Act.
Industrial Commission of Colorado v. Johnson, 64 Colo. 461,
172 P. 422, 423.
In American Law
Any oral or written reproach maliciously cast
upon God, His name, attributes, or religion. Com.
v. Kneeland, 20 Pick. (Mass.) 213; Young v. State,
10 Lea (Tenn.) 165; People v. Ruggles, 8 Johns.
( N.Y.) 290, 5 Am.Dec. 335; Updegraph v. Corn.,
11 Serg. & R. (Pa.) 406.
BLIND CAR. On railroads, one on which there
is neither steps nor platform at the ends. Helm
v. Hines, 109 Kan. 48, 196 P. 426.
In general, blasphemy may be described as consisting in
speaking evil of the Deity with an impious purpose to
derogate from the divine majesty, and to alienate the
minds of others from the love and reverence of God.
It is purposely using words concerning God calculated
and designed to impair and destroy the reverence, respect,
and confidence due to Him as the intelligent creator, governor, and judge of the world. It embraces the idea of
detraction, when used towards the Supreme Being, as
"calumny" usually carries the same idea when applied to
an individual. It is a willful and malicious attempt to
lessen men's reverence of God by denying His existence, or
His attributes as an intelligent creator, governor, and
judge of men, and to prevent their having confidence in
Him as such. Corn. v. Kneeland, 20 Pick. (Mass.) 211, 212.
The use of this word is, in modern law, exclusively confined to sacred subjects; but blasphemia and blasphemare
were anciently used to signify the reviling by one person
of another. Nov. 77, c. 1, § 1; Spelman.
BLASTING. Practice or occupation of rending
heavy masses, especially of rock, by means of explosives, as in oil well drilling, quarrying, etc.
Seismic Explorations v. Dobray, Tex.Civ.App., 169
S.W.2d 739, 742.
BLIND CORNER. One where the building extends to the property line. Mobile Light & R. Co.
v. Gadik, 211 Ala. 582, 100 So. 837, 838.
BLIND NAILING. "Blind nailing," in a contract
relating to the interior finish of a house, means
driving the nails in with a nail set, and concealing them with putty and paint. Sterling Engineering and Construction Co. v. Berg, 161 Wis.
280, 152 N.W. 851, 852.
BLIND TIGER. A place where intoxicants are
sold on the sly, and contrary to the law. Town
of Ruston v. Fountain, 118 La. 53, 42 So. 644; City
of Shreveport v. Maroun, 134 La. 490, 64 So. 388,
389. A "tippling-house." Calhoun v. Bell, 136 La.
149, 66 So. 761, 762, Ann.Cas.1916D, 1165.
BLIND WAGON. Such as one used for moving
furniture and the like, is one without the name or
address of the owner of it thereon. Mike Berniger Moving Co. v. O'Brien, Mo.App., 240 S.W.
481, 483.
BLINDCRAFT. A natural descriptive term identifying in a broad sense work of the blind, conveyBLEACHERS. A relatively low-priced seat for a ing the idea of the blind performing deftly at
spectator at sports or games, or the section or
any of the various skills or trades to which their
structure ( originally roofless) containing such
talents are applied or leaving the suggestion of
seats. Lowden v. Jefferson County Excise Board,
dexterity and skill of the blind as well as their
handiwork itself. San Francisco Ass'n for Blind
122 P.2d 991, 992, 190 Okl. 276; Zeitz v. Cooperstown Baseball Centennial, N.Y.Sup., 29 N.Y.S.2d 56, v. Industrial Aid for Blind, D.C.Mo., 58 F.Supp.
995, 1001.
57.
216
BLOOD
cut off all communication therewith, so arranged or disposed as to be able to apply its force to every point of
practicable access or approach to the port or place so
invested. The Olinde Rodrigues, D.C.S.C., 91 Fed. 274;
Id., 19 S.Ct. 851, 174 U.S. 510, 43 L.Ed. 1065; The Peterhoff, 5 Wall. 50, 18 L.Ed. 564; Grinnan v. Edwards, 21
W.Va. 347.
BLINKS. In old English law. Boughs broken
down from trees and thrown in a way where deer
are likely to pass. Jacob.
BLOCK. A square or portion of a city or town
inclosed by streets, whether partially or wholly occupied by buildings or containing only vacant lots.
Also used synonymous with "square." Weeks v.
Hetland, 202 N.W. 807, 812, 813, 52 N.D. 351. The
platted portion of a city surrounded by streets.
Cravens v. Putnam, 101 Kan. 161, 165 P. 801, 802.
The term need not, however, be limited to blocks
platted as such, but may mean an area bounded
on all sides by streets or avenues. St. Louis-San
Francisco R. Co. v. City of Tulsa, Okl., C.C.A.Okl.,
15 F.2d 960, 963. It must be surrounded on at
least three sides by streets, which must be marked
on the ground, and not simply indicated as such
on a plat. Seested v. Dickey, 318 Mo. 192, 300
S.W. 1088, 1098.
It is called a "blockade de facto" when the usual
notice of the blockade has not been given to the
neutral powers by the government causing the
investment, in consequence of which the blockading squadron has to warn off all approaching
vessels.
Pacific Blockade
A means of coercion short of war, usually adopted by the joint action of several nations.
An instance of it occurred when Great Britain and Germany united to prevent the slave traffic and stop the
i mportation of arms on the east coast of Africa. Snow.
Int. Law 79. In 1827 Greece was blockaded by France,
Russia, and Great Britain; in 1850 the Greek ports were
blockaded by Great Britain, and again in 1855 by the combined fleets of the five Great Powers. In 1887 the Institute
of International Law unanimously declared in favor of the
legality of pacific blockade, subject to certain conditions.
See 21 L. Mag. & Rev. 285; 2 Oppen. §§ 40-49.
BLOCK BOOK SYSTEM. An abstract of property
assessed for taxes and also of property unrendered
and of which owners were unknown, together
with maps and plats. Southern Surety Co. v. Lafferty, Tex.Civ.App., 43 S.W.2d 460, 463.
BLOCK-BOOKING. The practice of licensing or
offering for license one motion picture feature
or group of features on condition that exhibitor
will also license another feature or group of features released by distributor during a given period.
U. S. v. Paramount Pictures, N.Y., 68 S.Ct. 915, 928,
334 U.S. 131, 92 L.Ed. 1260.
BLOCK-HOLER. One who follows up the miner
to blast or throw down large rocks left in the process of mining in a "stope." Mesich v. Tamarack
Mining Co., 184 Mich. 363, 151 N.W. 564, 566.
BLOCH OF SURVEYS. In Pennsylvania land
law. Any considerable body of contiguous tracts
surveyed in the name of the same warrantee, without regard to the manner in which they were originally located; a body of contiguous tracts located
by exterior lines, but not separated from each other by interior lines. Morrison v. Seaman, 183 Pa.
74, 38 A. 710.
BLOCK TO BLOCK RULE. The "block to block
rule" for assessing the benefits for the opening of
a new street is, the assessment against the lots
in each block of the cost of acquiring the lands in
that block. In re St. Raymona Ave. in City of
New York, 162 N.Y.S. 185, 188, 175 App.Div. 518.
BLOCKADE. In international law. A marine Investment or beleaguering of a town or harbor. A
sort of circumvallation round a place by which
all foreign connection and correspondence is, as
far as human power can effect it, to be cut off. 1
C.Rob.Adm. 151.
It is not necessary, however, that the place should be
invested by land, as well as by sea, in order to constitute
a legal blockade; and, if a place be blockaded by sea only,
it is no violation of belligerent rights for the neutral to
carry on commerce with It by inland communications. 1
Kent, Comm. 147.
The actual investment of a port or place by a hostile
force fully competent, under ordinary circumstances, to
Paper Blockade
The state of a line of coast proclaimed to be
under blockade in time of war, when the naval
force on watch is not sufficient to repel a real attempt to enter.
Public Blockade
A blockade which is not only established in
fact, but is notified, by the government directing
it, to other governments; as distinguished from a
simple blockade, which may be established by a
naval officer acting upon his own discretion or
under direction of superiors, without governmental notification. The Circassian, 2 Wall. 150, 17 L.
Ed. 796.
Simple Blockade
One established by a naval commander acting
on his own discretion and responsibility, or under
the direction of a superior officer, but without governmental orders or notification. The Circassian,
2 Wall. 150, 17 L.Ed. 796.
BLOCKAGE. Recognition in the field of taxation
of fact that in some instances a large block of
stock cannot be marketed and turned into cash
as readily as a few shares. Citizens Fidelity Bank
& Trust Co. v. Reeves, Ky., 259 S.W.2d 432, 433.
BLOCKAGE RULE. Process of determining value
of large blocks of corporate stock for gift and
estate tax purposes, based on the postulate that
a large block of stock cannot be marketed as
readily and as advantageously in price as can a
few shares. Montclair Trust Co. v. Zink, Prerog.,
57 A.2d 372, 376, 380, 141 N.J.Eq. 401.
BLOCKHEAD. A term importing want of natural cleverness, and slowness and obstinacy of
mind.
BLOOD. Kindred; consanguinity; family relationship; relation by descent from a common ancestor. Swasey v. Jaques, 144 Mass. 135, 10 N.E.
758, 59 Am.Rep. 65.
217
BLOOD
A person may be said to be "of the blood" of another
who has any, however small a portion, of the blood derived
from a common ancestor, Miller v. Grimes, 262 Pa. 226, 105
A. 92, thus including half blood as well as whole blood,
Gardner's Estate v. Gardner, 42 Utah, 40, 129 P. 360, 361.
All persons are of the blood of an ancestor who may, in the
absence of other and nearer heirs, take by descent from
that ancestor. Cornell v. Child, 156 N.Y.S. 449, 452, 170
App.Div. 240.
Half-Blood
A term denoting the degree of relationship
which exists between those who have the same
father or the same mother, but not both parents
in common.
Mixed Blood
A person is "of mixed blood" who is descended
from ancestors of different races or nationalities;
but particularly, in the United States, the term denotes a person one of whose parents (or more remote ancestors) was a negro. U. S. v. First Nat.
Bank of Detroit, Minn., 234 U.S. 245, 34 S.Ct. 846,
848, 58 L.Ed. 1298.
Whole Blood
Kinship by descent from the same father and
mother; as distinguished from half blood, which
is the relationship of those who have one parent
in common, but not both.
BLOOD FEUD. Avenging the slaughter of kin on
the person who slaughtered him, or on his belongings.
Whether the Teutonic or the Anglo-Saxon law had a
legal right of blood feud has been disputed, but in Alfred's
day it was unlawful to begin a feud until al " attempt had
been made to exact the price of the life (weregild, q. v.).
BLOOD MONEY. A weregild, or pecuniary mulct
paid by a slayer to the relatives of his victim. Also used, in a popular sense, as descriptive of money paid by way of reward for the apprehension
and conviction of a person charged with a capital
crime.
BLOOD STAINS, TESTS FOR. See Precipitin
Test.
BLOODHOUNDS. Dogs remarkable for their
sense of smell and ability to follow a scent or
track a human being. Pedigo v. Com., 103 Ky. 41,
44 S.W. 143, 42 L.R.A. 432, 82 Am.St.Rep. 566.
It has been held that to permit evidence that a hound
has tracked an alleged criminal, it must be shown that it
had been trained in that work.
BLOODWIT. An amercement for bloodshed.
Cowell. The privilege of taking such amercements. Skene. A privilege or exemption from
paying a fine or amercement assessed for bloodshed. Cowell.
BLOODY HAND. In forest law. The having the
hands or other parts bloody, which, in a person
caught trespassing in the forest against venison,
was one of the four kinds of circumstantial evidence of his having killed deer, although he was
not found in the act of chasing or hunting. Manwood.
crevices in the ceiling and coming in contact with
the cargo. The Charles Rohde, D.C.Md., 8 F.2d
506.
BLUDGEON. Part of a boy's baseball bat, the
upper end of which had been broken off, has been
held to be a bludgeon within a statute relating to
the carrying of any concealed instrument. People v. McPherson, 220 N.Y. 123, 115 N.E. 515, 516.
Contra as to an iron bar, twenty inches long and
three-eighths to one-half inch in diameter. People
v. Visarities, 222 N.Y.S. 401, 403, 220 App.Div. 657.
BLUE. As applied to a cow, generally denoting
either a modified shade of black, or black with
white intermingled, or dark gray, dove, or slate
color, which, in contrast with some decided color
or with white, suggests and somewhat resembles
blue. Graham v. State, 16 Ga.App. 221, 84 S.E.
981, 983.
BLUE LAWS. A supposititious code of severe
laws for the regulation of religious and personal
conduct in the colonies of Connecticut and New
Haven; hence any rigid Sunday laws or religious
regulations. The assertion by some writers of the
existence of the blue laws has no other basis than
the adoption, by the first authorities of the New
Haven colony, of the Scriptures as their code of
law and government, and their strict application of
Mosaic principles. Century Dict.
BLUE NOTES. Notes accepted by a life insurance company for the amount of premiums on the
policy, which provide for the continuance of the
policy in force until the due date of the notes.
Robnett v. Cotton States Life Ins. Co., 148 Ark.
199, 230 S.W. 257, 258.
"Extension notes" in insurance parlance. O'Dell v.
American Nat. Ins. Co., Mo.App., 107 S.W.2d 108, 110.
BLUE SKY LAW. A popular name for acts providing for the regulation and supervision of investment companies, for the protection of the community from investing in fraudulent companies.
A law intended to stop the sale of stock in fly by
night concerns, visionary oil wells, distant gold
mines, and other like fraudulent exploitations.
Dinsmore v. National Hardwood Co., 234 Mich. 436,
208 N.W. 701.
BLUFF. A high, steep bank, as by a river, the
sea, a ravine, or a plain, or a bank or headland
with a broad, steep face. Columbia City Land
Co. v. Ruhl, 70 Or. 246, 141 P. 208, 210.
BLUMBA. A certifying metal tag attached to
kosher meat. People on Complaint of Waller v.
Jacob Branfman & Son, 263 N.Y.S. 629, 632, 147
Misc. 290.
BLUNDER.' As applied in cases of ordinary negligence is the want of or absence of ordinary care,
a failure to do what should have been done or -the
doing of that which should not have been done, resulting in the happening of an event or injury
which could have and should have been foreseen
and avoided by use of such care as a reasonably
BLOWING WATER. By a ship is throwing water
prudent person would have exercised under the
in the hold back and forth and forcing it through
218
BOARD
same or similar circumstances. Loyd v. Pierce,
Tex.Civ.App., 89 S.W.2d 1035, 1038.
BLUNDERBUSS. A firearm intended to shoot objects at close quarters, without exact aim. Moline
v. Kotch, 213 Minn. 326, 6 N.W.2d 462.
BOARD. An official or representative body organized to perform a trust or to execute official
or representative functions or having the management of a public office or department exercising
administrative or governmental functions. Commissioners of State Ins. Fund v. Dinowitz, 39 N.Y.
S.2d 34, 38, 179 Misc. 278.
A committee of persons organized under authority of law in order to exercise certain authorities, have oversight or control of certain matters,
t
or discharge certain functions of a magisterial,
representative, or fiduciary character. Thus,
"board of aldermen," "board of health," "board of
directors," "board of works."
Also lodging, food, entertainment, furnished to
a guest at an inn or boarding house.
When used with reference to prisoners, as a
basis for the sheriff's fee, board may be equivalent
to "necessary food." Pacific Coal Co. v. Silver
Bow County, 79 Mont. 323, 256 P. 386.
"Board," as a verb, means to receive food for
a reasonable compensation, either with or without lodging. In re Doubleday, 159 N.Y.S. 947, 949,
173 App.Div. 739; Wofford v. Hooper, 149 Tenn.
250, 259 S.W. 549.
"Township board" and "board of directors" as interchangeable terms. State ex rel. Kent v. Olenhouse, 324
Mo. 49, 23 S.W.2d 83, 85.
BOARD OF EDUCATION. An agency of the state
for government and management of a school district. McCurdy v. Board of Education of City of
Bloomington, 359 Ill. 188, 194 N.E. 287. The agency to which state delegates power and duty of controlling schools in school district, Charles B. Saxon, Inc., v. Board . of Education of Union Free
School Dist. No. 1 of Town of Catskill, 168 Misc.
209, 4 N.Y.S.2d 757. Public municipal corporation,
Gustafson v. Wethersfield Tp. High School Dist.
191, 319 I11.App. 255, 49 N.E.2d 311, 312.
To "board" a train may mean simply to "enter" it. St.
Louis, I. M. & S. Ry. Co. v. Williams, 117 Ark. 329, 175
S. W. 411, 412.
BOARD MEASURE. This term, in a contract of
sale of lumber for a specified price per thousand
feet, literally implies a measurement of lumber
having the dimensions of length, width, and thickness, according to the number of cubic inches;
but it may be subject to explanation according to
the particular circumstances. Paepcke-Leicht
Lumber Co. v. Talley, 106 Ark. 400, 153 S.W. 833,
836.
BOARD OF ALDERMEN. The governing body of
a municipal corporation. Oliver v. Jersey City,
63 N.J.Law, 96, 42 A. 782. See Aldermen.
BOARD OF AUDIT. A tribunal provided by statute in some states, to adjust and settle the accounts of municipal corporations. Osterhoudt v.
Rigney, 98 N.Y. 222.
BOARD OF CIVIL AUTHORITY. In Vermont, in
the case of a city this term includes the mayor and
aldermen and justices residing therein; in the
case of a town, the selectmen and town clerk
and the justices residing therein; in the case of
a village, the trustees or bailiffs and the justices
residing therein. Vt.St.1894, 19, 59 (G.L. 70).
BOARD OF EQUALIZATION. See Equalization.
BOARD OF FIRE UNDERWRITERS. Unincorporated voluntary associations composed exclusively of persons engaged in business of fire insurance, for consolidation and co-operation in matters affecting the business. Childs v. Insurance
Co., 66 Minn. 393, 69 N.W. 141, 35 L.R.A. 99.
BOARD OF HEALTH. A board or commission
with certain powers and duties relative to preservation and improvement of the public health.
Gaines v. Waters, 64 Ark. 609, 44 S.W. 353. A
term descriptive of an official body. Fisher v.
Kelly, 289 N.Y. 161, 44 N.E.2d 413, 416. The "Department of Health" of a city having a commissioner of health as its single executive head, was
a "Board of Health". Fisher v. Kelly, 264 App.
Div. 596, 36 N.Y.S.2d 497, 499.
BOARD OF MEDICAL EXAMINERS. A board
exercising certain powers in respect to licensing
osteopathic physicians and surgeons. Jordt v. California State Board of Education, 35 Cal.App.2d
591, 96 P.2d 809, 811.
BOARD OF PARDONS. A board to investigate
applications for executive clemency and to make
reports and recommendations thereon to the governor.
BOARD OF PUBLIC WORKS. Common council
of city in taking action respecting street improvements and making assessments. City of Crown
Point v. Newcomer, 204 Ind. 589, 185 N.E. 440, 441.
BOARD OF REVIEW. A quasi judicial body to
hear evidence tending to show errors in an assessment roll and to decide whether the assessor's
valuation is correct. State v. Williams, 160 Wis.
648, 152 N.W. 450, 451.
BOARD OF SPECIAL INQUIRY. An instrument
of executive power, made up of subordinates of
the commissioner of immigration with administrative duties. Pearson v. Williams, 202 U.S. 281, 26
S.Ct. 608, 50 L.Ed. 1029.
BOARD OF DIRECTORS. The governing body
of a private corporation.
BOARD OF SUPERVISORS. An organized committee, or body of officials, constituting part of the
county government, with special charge of the
county revenues.
Bank's "board of directors" within statute requiring
their consent means all directors. Code 1923, § 3412.
McLemore v. State, 26 Ala. App. 228, 157 So. 455, 457.
BOARD OF THE TOWN. The board of education
of a school district is a "board of the town."
219
BOARD
Charles B. Saxon, Inc., v. Board of Education of
Union Free School Dist. No. 1 of Town of Catskill, 168 Misc. 209, 4 N.Y.S.2d 757.
BOARD OF TRADE. An organization for the advancement and protection of business interests.
Retailers Credit Ass'n of Alameda County v. Commissioner of Internal Revenue, C.C.A.9, 90 F.2d
47, 51, 111 A.L.R. 152. An organization of merchants, manufacturers, etc., of a city, for furthering its commercial interests, advancing its prosperity, etc. In England, an administrative department of government, for the consideration of matters relating to trade and foreign plantations.
BOARD OF WORKS. A board for the better local
management of the English metropolis having the
care and management of grounds and gardens;
the superintendence of drainage; the regulation of
street traffic and of the buildings of the metropolis. Brown.
BOARDER. One who makes a special contract
for food with or without lodging. Berkshire
Woollen Co. v. Proctor, 7 Cush., Mass., 424; One
who boards at a boarding house or school. Atlantic City v. Le Beck, 125 N.J.L. 373, 15 A.2d 653,
654. One who has food and lodging for an agreed
price, usually under a contract intended to continue for a considerable period of time. Ullman
v. State, 1 Tex.App. 220, 28 Am.Rep. 405.
•
A guest, as distinguished from boarder, comes and
remains without any bargain for time, and may go away
when he pleases. Stewart v. McCready, 24 How.Prac.,
N.Y., 62; In re Doubleday, 173 App.Div. 739, 159 N.Y.S.
947, 949.
BOARDING HOUSE. A house where the business
of keeping boarders generally is carried on, and
which is held out by the owner or keeper as a
place where boarders are kept; one for the accommodation of those who enter under contract for
entertainment at a certain rate for a certain period
of time, as for a week or month, at a rate of compensation agreed on; a house kept principally for
the residence of permanent boarders. Singelakis
v. Davidson, 117 N.J.L. 332, 188 A. 443, 444. A
sort of public house, partaking in some degree
of the character of an inn or restaurant. Baddour
v. City of Long Beach, 279 N.Y. 167, 18 N.E.2d 18,
21, 124 A.L.R. 1003. A quasi public house, where
boarders are generally and habitually kept, and
which is held out and known as a place of entertainment of that kind. Cady v. McDowell, 1 Lans.,
N.Y. 486; Friedrich Music House v. Harris, 200
Mich. 421, 166 N.W. 869, L.R.A.1918D, 400.
A house occupied for carrying on the business of keeping
boarders, although while prosecuting the business and as
a means of prosecuting it, the occupant and his wife and
children live in the house. Trainor v. Le Beck, 101 N.J.Eq.
823, 139 A. 16, 17. A boarding-house and an inn or hotel
differs in, that in a boarding-house the guest is under an
express contract, while in an inn there is no express agreement. Willard v. Reinhardt, 2 E. D. Smith, N. Y., 148;
McIntosh v. Schops, 92 Or. 307, 180 P. 593. An innkeeper
is also bound to receive a guest when he presents himself.
2 El. & Bl. 144; McClaugherty v. Cline, 128 Tenn. 605, 163
S.W. 801. A "boarding-house" is also less public in chararacter. State v. Brown, 112 Kan. 814, 212 P. 663, 664, 31
A.L.R. 338. See, also, Talbott v. Southern Seminary, 131
Va. 576, 109 S.E. 440, 19 A.L.R. 534. A "rooming house"
differs from a "boarding-house" only in that the latter
furnishes meals. City of Independence v. Richardson, 117
Kan. 656, 232 P. 1044, 1046. A boarding school, however,
is not a boarding-house within a lien statute. Talbott v.
Southern Seminary, 131 Va. 576, 109 S.E. 440, 441, 19
A.L.R. 534.
BOARIUS, adj. Lat. Relating to neat cattle.
See Bovarius.
BOAT. A small open vessel, or water craft, usually moved by oars or rowing.
It is commonly distinguished in law from a ship or vessel, by being of smaller size and without a deck. The
Saxon, D.C.S.C., 269 F. 639, 641. But "boat" and "vessel"
are often used synonymously. Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S. Ct. 524, 527, 61 L. Ed. 1086, L.R.A.
1918C, 451. And see State v. Hutchins, 79 N.H. 132, 105
A. 519, 521, 2 A.L.R. 1685 ("boats and rafts" held broad
enough to cover all water craft, not merely small rowboats). The verb "boat" means to go in a boat. Chappell
v. Commercial Casualty Ins. Co., 120 W.Va. 262, 197 S.E.
723, 724.
International rule that sailing vessels shall keep out of
way of sailing vessels or boats fishing with nets or lines or
trawls does not apply to craft 55 feet long equipped with
machinery powerful enought to handle a trawl which
would ordinarily be decked over, would have living accommodations for crew, etc. International Rules, art. 26,
33 U.S.C.A. § 111. The Virginia and Joan, C.C.A.Mass., 86
F.2d 259, 261. Seaplanes equipped with pontoons or hulls
having hydroplaning surfaces are "hydroplane boats"
though provided with wings. Fauber v. United States, Ct.
Cl., 37 F.Supp. 415, 435.
BOATABLE. A term applied in some states to
minor rivers and streams capable of being navigated in small boats, skiffs, or launches, though
not by steam or sailing vessels. New England
Trout, etc., Club v. Mather, 68 Vt. 338, 35 A. 323,
33 L.R.A. 569.
A "boatable stream" is one of common passage as a high
way. Boutwell v. Champlain Realty Co., 89 Vt. 80, 94 A.
108, 111, Ann.Cas.1918A, 726.
BOATING. Conveyance by a boat, of whatever
kind, of persons or freight. Bosworth v. Nelson,
172 Ga. 612, 158 S.E. 306, 307.
BOATSWAIN. A seaman who superintends the
work of the crew. South Atlantic S. S. Co. of
Delaware v. Munkacsy, Del., 7 W.W.Harr. 580, 187
A. 600, 604. The foreman of sailors. McCauley v.
Pacific Atlantic S. S. Co., 167 Or. 80, 115 P.2d 307,
308.
BOB-TAIL DRIVER. A person collecting and delivering laundry without being subject to complete control of employer. Ring v. City Dry
Cleaners, Fla., 152 Fla. 622, 12 So.2d 593, 594.
BOBTAILED CABOOSE. One with a door in the
front end and without any platform. St. Louis
Southwestern Ry. Co. of Texas v. Johnson, Tex.
Civ.App., 249 S.W. 1092.
BOBTAILS. Persons who conduct stores or establishments of their own where patrons may
bring articles to be laundered. Schwartz v. Laundry & Linen Supply Drivers' Union, Local 187, 339
Pa. 353, 14 A.2d 438, 439.
BOC. In Saxon law. A book or writing; a deed
or charter. Boc land, deed or charter land. Land
boc, a writing for conveying land; a deed or charter; a land-book. The land-bocs, or evidences of
220
BODY
title, corresponding to modern deeds, were destroyed by William the Conqueror.
BOC HORDE. A place where books, writings, or
evidences were kept, generally in monasteries.
Cowell.
BOC LAND. In Saxon law. Allodial lands held
by deed or other written evidence of title.
BOCERAS. Sax. A scribe, notary, or chancellor
among the Saxons.
BODILY. Pertaining to or concerning the body;
of or belonging to the body or the physical constitution; not mental but corporeal. Electric R.
Co. v. Lauer, 21 Ind.App. 466, 52 N.E. 703; Provident Life & Accident Ins. Co. v. Campbell, 18 Tenn.
App. 452, 79 S.W.2d 296.
Under a health insurance policy the words "bodily disease or illness" have been held to embrace insanity. American Nat. Ins. Co. v. Denman, Tex.Civ.App., 260 S.W. 226,
227; Syphilis and insanity caused by syphilis. Magill v.
Travelers Ins. Co., C.C.A.Mo., 133 F.2d 709, 712.
Bodily Harm
Any touching of the person of another against
his will with physical force, in an intentional, hostile, and aggressive manner, or a projecting of
such force against his person. People v. Moore,
50 Hun, 356, 3 N.Y.Supp. 159. Any impairment of
physical condition of another's body or physical
pain or illness, but does not include minute disturbance of nerve centers caused by fear, shock or
other emotions. Clark v. Associated Retail Creditmen of Washington, 70 App.D.C. 183, 105 F.2d 62,
64.
Bodily Heirs
Heirs begotten or borne by the person referred
to; lineal descendants. Turner v. Hause, 199 Ill.
464, 65 N.E. 445; Righter v. Forrester, 1 Bush,
Ky., 278.
Progeny or issue, Including children, grandchildren, and
other lineal descendants. Matthews v. Matthews, 214 N.C.
204, 198 S.E. 663, 665. Children synonymous. Murdock v.
Deal, 208 N.C. 754, 182 S.E. 466. Heirs of body synonymous, Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662, 666.
Adopted child as included in words "bodily heirs", Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660, 663, 133 A.L.R.
586. Words of limitation, Kinnaird v. Farmers' & Merchants' Bank, 249 Ky. 661, 61 S.W.2d 291.
Bodily Infirmity
A settled disease or ailment that would probably result to some degree in general impairment
of physical health and vigor. Travelers' Ins. Co.
of Hartford, Conn., v. Byers, 123 Cal.App. 473, 11
P.2d 444, 446; Ross v. First American Ins. Co.,
125 Neb. 329, 250 N.W. 75, 79. An ailment or disorder of an established and settled character.
Maremont v. Lawyers Mut. Ben. Ass'n, 294 Ill.
App. 605, 13 N.E.2d 849; Ross v. First American
Ins. Co., 125 Neb. 329, 250 N.W. 75, 79; something
that amounts to inroad on physical health or
i mpairment of bodily or mental powers. McClure
v. World Ins. Co., 126 Neb. 676, 254 N.W. 393;
Gyulai v. Prudential Ins. Co. of America, 135 Pa.
Super. 73, 4 A.2d 824, 826.
Bodily Injury
Any physical or corporeal injury; not necessarily restricted to injury to the trunk or main part
of the body as distinguished from the head or
limbs. State Life Ins. Co. v. Allison, C.C.A.Ala.,
269 F. 93, 94, 14 A.L.R. 412; Ross v. International
Travelers Ass'n, Tex.Civ.App., 283 S.W. 621. A
physical injury only. United States Fidelity &
Guaranty Co. v. Shrigley, D.C.Ark., 26 F.Supp. 625,
628. A cut, bruise, or wound. Chase v. Business
Men's Assur. Co. of America, C.C.A.Utah, 51 F.2d
34, 36. A localized abnormal condition of the living body. King v. Travelers Ins. Co., 123 Conn.
1, 192 A. 311. An injury caused by external violence. P.rannaker v. Prudential Ins. Co. of America, 236 Mo.App. 239, 150 S.W.2d 498, 502. Burns
v. Employers' Liability Assur. Corporation, Limited, of London, England, 134 Ohio St. 222, 16 N.E.2d
316, 321, 117 A.L.R. 733.
"Bodily injuries" and "personal injuries" are not synonymous. • Malone v. Costa, 151 Fla. 144, 9 So.2d 275, 277.
"Bodily injury" and "personal injury" may be used as
equivalent terms. Cormier v. Hudson, 284 Mass. 231, 187
N.E. 625, 626. American Fidelity & Casualty Co. v. Mahon, 170 Md. 573, 185 A. 330, 332, 105 A.L.R. 1200.
Bodily Member
An ear is not embraced in the term "member".
Lumbermens Mut. Casualty Co. v. Cook, 69 Ga.
App. 131, 25 S.E.2d 67, 71.
Great Bodily Harm
An injury of a greater and more serious kind
than battery. Shires v. Boggess, 72 W.Va. 109, 77
S.E. 542, 545. Equivalent to "maim." State v.
Foster, 281 Mo. 618, 220 S.W. 958, 959.
Great Bodily Injury
An injury of a more grave and serious character than an ordinary battery, but one which cannot be definitely defined. State v. Ockij, 165 Iowa,
237, 145 N.W. 486, 487; Hallett v. State, 109 Neb.
311, 190 N.W. 862, 863,
BODMERIE, BODEMERIE, BODDEMEREY.
Belg. and Germ. Bottomry ( q. v.).
BODY. A person. Used of a natural body, or
of an artificial one created by law, as a corporation.
The main part of the human body; the trunk.
Walker v. State, 34 Fla. 167, 16 So. 80, 43 Am.St.
Rep. 186. The term may, however, embrace all
members of the person, Louisville Ry. Co. v. Veith,
157 Ky. 424, 163 S.W. 217; including the head,
Franklin v. State, 33 Ohio Cir.Ct.R. 21, 22.
Also the main part of an instrument; in deeds
it is spoken of as distinguished from the recitals
and other introductory parts and signatures; in
affidavits, from the title and jurat.
A collection of laws; that is, the embodiment
of the laws in one connected statement or collection, called a "body of laws" ( q. v.).
A cement mixer assembled on a truck, Consolidated
Rock Products Co. v. Carter, 54 Cal.App.2d 519, 129 P.2d
221
BODY
455, 457. The Workmen's Benefit Fund of the United States
of America. In re Workmen's Benefit Fund of United
States, 38 N.Y.S.2d 429, 431, 265 App.Div. 176.
BODY CORPORATE. A corporation public or
private.
School districts, Commonwealth v. School Dist. of Pittsburgh, Allegheny County, 343 Pa. 394, 23 A.2d 496. State
Building Commission, Utah State Building Commission, for
Use . and Benefit of Mountain States Supply Co., v. Great
American Indemnity Co., 105 Utah 11, 140 P.2d 763, 767.
BODY EXECUTION. An "execution" for confinement of defendant, Hershey v. People, 91 Colo. 113,
12 P.2d 345, 347.
A "body execution" is an "execution" which directs that,
in accordance with the provisions therein set forth, the
body of the defendant therein named be committed to
jail. Ex parte Thompson, 111 Vt. 7, 9 A.2d 107, 110.
BODY HEIRS. Sometimes words of purchase.
Brown v. Boone, 129 Kan. 786, 284 P. 436, 437.
BODY OF A COUNTY. A county at large, as distinguished from any particular place within it.
A county considered as a territorial whole. State
v. Arthur, 39 Iowa, 632; People v. Dunn, 31 App.
Div. 139, 52 N.Y.Supp. 968.
BODY OF AN INSTRUMENT. The main and operative part; the substantive provisions, as distinguished from the recitals, title, jurat, etc.
BODY OF LAWS. An organized and systematic
collection of rules of jurisprudence.
BODY OF THE OFFENSE. When applied to any
particular offense, means that the particular
crime charged has actually been committed by
some one. Barrett v. State, 57 Okl. 259, 47 P.2d
613, 617.
BODY POLITIC OR CORPORATE. A social compact by which the whole people covenants with
each citizen, and each citizen with the whole people, that all shall be governed by certain laws for
the common good, Uricich v. Kolesar, 54 Ohio App.
309, 7 N.E.2d 413, 414. A term applied to a corporation. County. Bazzoli v. Larson, 40 Ohio App.
321, 178 N.E. 331, 332; Lindburg v. Bennett, 117
Neb. 66, 219 N.W. 851, 855. Municipality. MiddleStates Utilities Co. v. City of Osceola, 1 N.W.2d
643, 645, 231 Iowa 462; Lindburg v. Bennett, 117
Neb. 66, 219 N.W. 851, 855. School district. Patrick v. Maybank, 198 S.C. 262, 17 S.E.2d 530, 534.
State or nation or public associations, Utah
State Building Commission, for Use and Benefit
of Mountain States Supply Co., v. Great American
Indemnity Co., 105 Utah 11, 140 P.2d 763, 767.
BOILARY. Water arising from a salt well belonging to a person who is not the owner of the
soil.
Norfolk & W. Ry. Co. v. Royal Indemnity Co.,
D.C.Pa., 257 F. 849, 850; nor damage by gas explosion in fire box and chimney, Hartford Steam
Boiler Inspection & Insurance Co. v. Kleinman,
Tex.Civ.App., 293 S.W. 894, 895.
Under the Boiler Inspection Act Feb. 17, 1911, §
2, 45 U.S.C.A. § 23, a locomotive cab is an appurtenance to the boiler, Brown v. Lehigh Valley R.
Co., 108 Misc. 384, 177 N.Y.S. 618, 619; and a bell
ringer is a part or appurtenance of a locomotive
and tender, Hines v. Smith, C.C.A.Ill., 275 F. 766,
767; but not a so-called trail car similar to a flat
car, used exclusively in switching cars or trains
onto a transfer boat, for the purpose of preventing
the great weight of the locomotive from being
placed on the apron or approaches of the transfer
boat, Alabama & V. Ry. Co. v. Ware, 129 Miss.
315, 92 So. 161, 162.
BOILS. A policy, providing for the payment of indemnity in the event the insured suffered from
"boils," is clear and explicit, and does not cover
disability occasioned by a disease designated as
"ischio-rectal abscess." Midland Casualty Co. v.
Mason, 55 Okl. 93, 154 P. 1171, 1172. A localized
inflammatory swelling of the skin. Beck v. State,
29 Ala.App. 410, 197 So. 42, 43.
BOIS, or BOYS. L. Fr. Wood; timber; brush.
BOLHAGIUM, or BOLDAGIUM. A little house or
cottage. Blount.
BOLT. The desertion by one or more persons
from the political party to which he or they belong; the permanent withdrawal before adjournment of a portion of the delegates to a political
convention. Rap. & L.
A mass or block of wood from which anything
may be cut or formed. St. Louis, I. M. & S. R.
Co. v. J. F. Hasty & Sons, 255 U.S. 252, 41 S.Ct.
269, 270, 65 L.Ed. 614.
BOLTING. In English practice. A term formerly
used in the English inns of court, but more particularly at Gray's Inn, signifying the private arguing of cases, as distinguished from mooting,
which was a more formal and public mode of argument. Cowell; Tomlins; Holthouse.
BOMBAY REGULATIONS. Regulations passed
for the presidency of Bombay, and the territories
subordinate thereto. They were passed by the
governors in council of Bombay until the year
1834, when the power of local legislation ceased,
and the acts relating thereto were thenceforth
passed by the governor general of India in council. Mozley & Whitley.
BOILER. Insurance policies defining a boiler as BON, Fr. In old French law, a royal order or
a receptacle in which steam is generated, including check on the treasury, invented by Francis I.
Bon pour mule livres, good for a thousand livres.
the stop valve nearest the boiler, have been held
Step.Lect. 387.
not to include a nipple screwed into the outlet of
In modern law. The name of a clause (bon
the stop valve, Cambria Coal Mining Co. v. Travelpour
, good for so much) added to a cedule
ers' Indemnity Co., 144 Tenn. 469, 234 S.W. 323,
or promise, where it is not in the handwriting of
324, nor the whistle pipe above the whistle valve,
222
BONA FIDE
the signer, containing the amount of the sum
which he obliges himself to pay. Poth.Obl. part
4, ch. 1, art. 2, § 1.
BONA. Lat. n. Goods; property; possessions.
In the Roman law, this term was used to designate
all species of property, real, personal, and mixed,
but was more strictly applied to real estate. In
modern civil law, it includes both personal property (technically so calledl and chattels real, thus
corresponding to the French biens (q. v.). In the
common law, its use was confined to the description of movable goods. Tisdale v. Harris, 20 Pick.
( Mass.) 13.
Bona Confiscata
Goods confiscated or forfeited to the imperial fist or
treasury. 1 Bl.Comm. 299.
Bona et Catalla
Goods and chattles. Movable property. This expression
includes all personal things that belong to a man. 16 Mees.
& W. 68.
Bona Felonum
In English law. Goods of felons; the goods of one convicted of felony. 5 Coke, 110.
Bona Forisfacta
Goods forfeited.
Bona Fugitivorum.
In English law. Goods of fugitives; the proper goods of
him who flies for felony. 5 Coke, 109b.
Bona Immobilia
Lands. Castle v. Castle,,C.C.A.Haw., 267 F. 521, 522.
Bona Mobilia
In the civil law. Movables. Castle v. Castle, C.C.A.
Haw., 267 F. 521, 522. Those things which move themselves or can be transported from one place to another, and
not permanently attached to a farm, heritage, or building.
Bona Notabilia
Notable goods; property worthy. of notice, or of sufficient value to be accounted for. 2 Bl.Comm. 509; Rolle,
Abr. 908. Moore v. Jordan, 36 Kan. 271, 13 P. 337, 59 Am.
Rep. 550.
Bona Paraphernalia
In the civil law. The separate property of a married
woman other than that which is included in her dowry;
more particularly, her clothing, jewels, and ornaments.
Whiton v. Snyder, 88 N.Y. 303.
Bona Peritura
Goods of a perishable nature; such goods as an executor
or trustee must use diligence in disposing of and converting them into money.
Bona Utlagatorum
Goods of outlaws; goods belonging to persons outlawed.
Bona Vacantia
Vacant, unclaimed, or stray goods. Those things in
which nobody claims a property, and which belonged,
under the common law, to the finder, except in certain
instances, when they were the property of the king. 1
Bl.Comm. 298.
Bona Waviata
In English law. Waived goods; goods stolen and waived,
that is, thrown away by the thief in his flight, for fear of
being apprehended, or to facilitate his escape; and which
go to the sovereign. 5 Coke, 109b; 1 Bl.Comm. 296.
Bona Fides
Good faith; integrity of dealing; honesty; sincerity;
the opposite of mala fides and of dolus males,
Bona Gestura
Good abearance or behavior.
Bona Gratia
In the Roman law. By mutual consent; voluntarily. A.
term applied to a species of divorce where the parties separated by mutual consent; or where the parties renounced
their marital engagements without assigning any cause, or
upon mere pretexts. Tayl. Civil Law, 361 362; Calvin.
Bona Memoria
Good memory. Generally used in the phrase sance mentis et bonce memorice, of sound mind and good memory,
as descriptive of the mental capacity of a testator.
Bona Patria
In the Scotch law. An assize or jury of good neighbors.
Bell.
BONA FIDE. Is or with good faith; honestly,
openly, and sincerely; without deceit or fraud.
M. Lowenstein & Sons v. British-American Mfg.
Co., C.C.A.Conn., 7 F.2d 51, 53; Fairfield Holding
Corporation v. Souther, 258 Mass. 540, 155 N.E.
639, 640. Truly; actually; without simulation or
pretense. Innocently; in the attitude of trust and
confidence; without notice of fraud, etc. Real,
actual, genuine, and not feigned. Bridgeport
Mortgage & Realty Corporation v. Whitlock, 128
Conn. 57, 20 A.2d 414, 416.
The phrase "bona fide" is sometimes used ambiguously;
thus, the expression "bona fide holder for value" (see that
title, infra) may either mean a holder for real value, as
opposed to a holder for pretended value, or it may mean a
holder for reaL,yalue without notice of any fraud, etc.
Byles, Bills, 121.
Bona Fide Contract Carriers
Genuine contract carriers without deceit or fraud. Infantino v. Pennsylvania Public Utility Commission, 146
Pa.Super. 245, 22 A.2d 108, 109; Puhl v. Pennsylvania Public Utility Commission, 139 Pa.Super. 152, 11 A.2d 508, 511.
Bona Fide Holder for Value
An innocent or "bona fide holder for value" of negotiable
paper is one who has taken it in good faith for a valuable
consideration in the ordinary course of business and when
it was not overdue. McCamant v. McCamant, Tex.Civ.App.,
187 S.W. 1096, 1099. "Holder in due course" as equivalent
for expression "bona fide holder for value without notice."
Drumm Const. Co. v. Forbes, 305 Ill. 303, 137 N.E. 225, 226,
26 A.L.R. 764; Bank of California v. National City Co., 138
Wash. 517, 244 P. 690, 691; Bruce v. Citizens' Nat. Bank of
Lineville, 185 Ala. 221, 64 So. 82, 84; Weller v. Meadows,
Mo.App., 272 S.W. 85, 90. One who receives negotiable
paper in payment of antecedent obligations without notice
of prior equities. W. Horace Williams Co. v. Vandaveer,
Brown & Stoy, Tex.Civ.App., 84 S.W.2d 333, 340.
Bona Fide Judgment Creditor
One who in good faith, without fraud or collusion, recovers a judgment for money honestly due him. Rochester
Trust Co. v. White, 243 Pa. 469, 90 A. 127, 129.
Bona Fide Mortgagee
Essential elements of status are good faith, valuable consideration, and absence of notice. Companaro v. Gondolfo,
C.C.A.N.J., 60 F.2d 451, 452. To constitute "bona fide
mortgagee" there must be an absence of notice and payment of, or fixed liability for the consideration. Cambridge Production Credit Ass'n v. Patrick, 140 Ohio St. 521,
45 N.E.2d 751, 755, 144 A.L.R. 323.
BONA. Lat. adj. Good. Used in numerous legal
phrases of which the following are the principal:
223
BONA FIDE
Bona Fide Operation
Substantial, as distinguished from incidental, sporadic,
or infrequent service. Goncz v. Interstate Commerce Commission, D.C.Mass., 48 F.Supp. 286, 288.
Bona Fide Possessor
One who not only supposes himself to be the true proprietor of the land, but who is ignorant that his title is
contested by some other person claiming a better right to
It. Whitehead v. Barker, 288 Mich. 19, 284 N.W. 629, 631.
Bona Fide Possessor Facit Fructus Consumptos Suos
By good faith a possessor makes the fruits consumed his
own. Tray. Lat. Max. 57.
Bona Fide Purchaser
A purchaser in good faith for valuable consideration and
without notice. Neal v. Holt, Tex.Civ.App., 69 S.W.2d 603,
609. A purchaser for a valuable consideration paid or
parted with in the belief that the vendor had a right to
sell, and without any suspicious circumstances to put him
on inquiry. Merritt v. Railroad Co., 12 Barb., N. Y., 605.
One who acts without covin, fraud, or collusion; one who,
in the commission of or connivance at no fraud, pays full
price for the property, and in good faith, honestly, and in
fair dealing buys and goes into possession. Sanders v.
McAffee, 42 Ga. 250. One who at time of purchase
advances a new consideration, surrenders some security,
or does some other act which leaves him in a worse position if his purchase should be set aside. Kelly v. Grainey,
113 Mont. 520, 129 P.2d 619, 626. Title, possession, and
want of notice, either actual or constructive, as the essential factors. Taylor v. Lindenmann, 211 Iowa, 1122, 235
N.W. 310, 312. Payment of consideration prior to notice
of adverse claim as essential. The J. Oswald Boyd,
D.C.Mich., 53 F.Supp. 103, 106. Payment of valuable consideration, good faith, absence of purpose to take unfair
advantage of third persons, and absence of actual or constructive notice of outstanding rights of others as the
essential elements. Luschen v. Stanton, 192 Okl. 454, 137
P.2d 567, 570. "Innocent purchaser for value" and "bona
fide purchaser" as synonymous. Felts v. Whitaker, Tex.
Civ.App., 129 S.W.2d 682, 690.
Bona Fide Residence
Residence with domiciliary intent, i. e., a home In which
the party actually lives. Alburger v. Alburger, 138
Pa. Super. 339, 10 A.2d 888, 890.
BONA FIDES EXIGIT UT QUOD CONVENIT
FIAT. Good faith demands that what is agreed
upon shall be done. Dig. 19, 20, 21; Id. 19, 1, 50;
Id. 50, 8, 2, 13.
BONZE FIDEI NON CONGRUIT DE APICIBUS
JURIS DISPUTARE. It is unbecoming to (or
incompatible with) good faith to discuss (insist
upon) the extreme subtleties of the law. A maxim which may be more freely rendered as meaning, "To insist on extreme subtleties of law is an
encouragement to fraud." Adams. Gloss.
BONA FIDES NON PATITUR UT BIS IDEM
EXIGATUR. Good faith does not allow us to
demand twice the payment of the same thing.
Dig. 50, 17, 57; Broom, Max. 338, note; Perine v.
Dunn, 4 Johns.Ch., N.Y., 143.
BONZE FIDEI. In the civil law. Of good faith;
it good faith.
BONZE FIDEI EMPTOR. A purchaser in good
faith. One who either was ignorant that the thing
he bought belonged to another or supposed that
the seller had a right to sell it. Dig. 50, 16, 109.
See Id. 6, 2, 7, 11.
BONZE FIDEI POSSESSOR. A possessor in good
faith. One who believes that no other person has
a better right to the possession than himself.
Mackeld.Rom.Law, § 243.
BONZE FIDEL POSSESSOR IN ID TANTUM
QUOD SESE PERVENERIT TENETUR. A possessor in good faith is liable only for that which
he himself has obtained (or that which has come
to him). 2 Inst. 285.
BONANZA. Enormous profit for miner in placer
mine. Ballagh v. Williams, 50 Cal.App.2d 10, 122
P.2d 343, 344.
BOND. A certificate or evidence of a debt. State
v. Merchants Nat. Bank of Mobile, 230 Ala. 661,
162 So. 270; First State Bank of Kansas City v.
Bone, 122 Kan. 493, 252 P. 250, 254. A contract.
Cusack v. McGrain, 136 Ohio St. 27, 23 N.E.2d 633,
635. A debt on which interest is paid. Commissioner of Internal Revenue v. H. P. Hood & Sons,
C.C.A.1, 141 F.2d 467, 469. A deed whereby the obligor obliges himself, his heirs, executors and
administrators, to pay a certain sum of money to
another at a day appointed. Gural v. Engle, 128
N.J.L. 252, 25 A.2d 257, 260; Commonwealth, for
Use of Fayette County v. Perry, 330 Pa. 355, 199
A. 204, 206. A mere promise to pay. Deppe v.
Lufkin, C.C.A.Mass., 116 F.2d 483, 486. A specialty or sealed instrument and not merely a written instrument. Forrest v. Hawkins, 169 Va. 470,
194 S.E. 721, 722. A written obligation. Davis
v. Phipps, 191 Ark. 298, 85 S.W.2d 1020, 1023, 100
A.L.R. 1110; Covington Virginian v. Woods, 182
Va. 538, 29 S.E.2d 406; Code Miss.1930, § 1365. An
instrument which is not necessarily under seal.
Carson, Pirie, Scott & Co. v. Duffy-Powers, Inc.,
D.C.N.Y., 9 F.Supp. 199, 201; Code Miss.1930, §
1365. An instrument with a clause, with a sum
fixed as a penalty, binding the parties to pay the
same, conditioned, however, that the payment of
the penalty may be avoided by the performance
by some one or more of the parties of certain
acts. In re Fitch, 3 Redf.Sur., N.Y., 459. And
see Stifel Estate Co. v. Cella, 220 Mo.App. 657, 291
S.W. 515, 518. Any contractual funding device.
Leon County v. State, 122 Fla. 505, 165 So. 666.
Debentures. First State Bank of Kansas City v.
Bone, 122 Kan. 493, 252 P. 250, 254. Obligation to
pay interest embodied in bonds as included in
word "bonds." Eisiminger v. Elliott, Colo., 103
Colo. 216, 84 P.2d 823, 825.
In old Scotch law. A bond-man; a slave.
Skene.
Bonds are either single (simple) or double, (conditional.) A single bond is one in which the obligor binds
himself, his heirs, etc., to pay a certain sum of money to
another person at a specified day. A double (or conditional) bond is one to which a condition is added that if
the obligor does or forbears from doing some act the obligation shall be void. Formerly such a condition was sometimes contained in a separate instrument, and was then
called a "defeasance."
BONZE FIDEI CONTRACTS. In civil and Scotch
law. Those contracts in which equity may interpose to correct inequalities, and to adjust all matters according to the plain intention of the parties. 1 Karnes, Eq. 200.
224
BONDAGE
Word "bond" in a statute means negotiable bonds.
Royal Oak Drain. Dist., Oakland County v. Keefe, C.C.A.
Ohio, 87 F.2d 786. Word "bons" in statute held applicable
to a single bond. Lien Law N.Y. § 231. In re Downtown
Athletic Club of New York City, D.C.N.Y., 18 F.Supp. 712,
715.
As a verb, to place under the cohditions of a bond;
specif. : to convert into a debt secured by bonds. State
ex rel. Pittman Bros. Const. Co. v. Watson, 199 La. 623, 6
So.2d 709, 712. To give bond for, as for duties on goods;
to secure payment of duties, by giving bond. Bonded,
secured by bond. Bonded goods are those for the duties
on which bonds are given.
Bond and Disposition in Security
In Scotch law. A bond and mortgage on land.
Bond and Mortgage
A species of security, consisting of a bond conditioned
for the repayment of a loan of money, and a mortgage of
realty to secure the performance of the stipulations of the
bond. Meigs v. Bunting, 141 Pa. 233, 21 A. 588, 23 Am.St.
Rep. 273.
A bond and mortgage are distinct and separate securities. In re Maroney's Estate, 311 Pa. 336, 166 A. 914, 915.
"Bond" is primarily contract to pay while "mortgage" is
separate contract to secure payment. Mendelson v. Realty
Mortg. Corporation, 257 Mich. 442, 241 N.W. 154, 155.
Investment in certificates of participation in bonds and
mortgages as within statute authorizing investment in
"bonds and mortgages". In re Smith, 279 N.Y. 479, 18
N.E.2d 666, 670.
Bond Creditor
A creditor whose debt is secured by a bond.
Bond for Deed
An agreement to make title in the future or an executory
or incomplete sale. Ingram v. Smith, 62 Ga.App. 335, 7
S.E.2d 922, 926. An agreement to buy and sell real estate
on small monthly payments. Galverina v. Ben L. Lewis
Corporation, La.App., 165 So. 29.
Bond for Title
An agreement to make title in the future or an executory
or incomplete sale. Ingram v. Smith, 62 Ga.App. 335, 7
S.E.2d 922, 926. White v. Stokes, 67 Ark. 184, 53 S.W. 1060.
In re Phcenix Planing Mill, D.C.Ga., 250 F. 899, 903. It is
not a conveyance of legal title but only a contract t,') convey and may ripen into an equitable title upon payment
of the consideration. Faddell v. Taylor, Tex.Com.App.,
239 S.W. 931, 932.
Bond Issue
Delivery of instruments as covered by term. Vans
Agnew v. Fort Myers Drainage Dist., C.C.A.Fla., 69 F.2d
244, 245.
Bond of Indebtedness
Instruments containing promise to pay sum certain under
seal and issued in series in nature of corporate securities.
Bellefield Co. v. Heiner, D.C.Pa., 26 F.2d 292, 293. A temporary bond in registered form issued by public service
corporation. Wisconsin Public Service Corporation v.
United States, D.C.Wis., 40 F.Supp. 327, 330.
Bond of Such Ordinary
Bond that the ordinary gives for the faithful performance
of duties as clerk. Jones v. Reed, 58 Ga.App. 72, 197 S.E.
665, 668.
Bond Tenants
In English law. Copyholders and customary tenants are
sometimes so called. 2 Bi.Comm. 148.
Bond with Surety
Bond executed without surety but accompanied by certified check as substitute. Clinch Valley Lumber Corporation v. Hagan Estates, Inc., 167 Va. 1, 187 S.E. 440, 441.
Bonds of State or Public Corporation
State's or city's general obligation bonds. City of Los
Angeles v. Agardy, 1 Ca1.2d 76, 33 P.2d 834, 835.
Black's Law Dictionary Revised 4th Ed.-15
Claim Bond
Primarily in nature of forthcoming bond. Sanders v.
Farrier, Tex.Civ.App., 271 S.W.2d 293, 298.
Corporate Bonds
See Corporate Bonds.
Forthcoming Bond
A bond conditioned that a certain article shall be forthcoming at a certain time or when called for. See Claim
bond.
General Mortgage Bond
A bond secured upon an entire corporate property, parts
of which are subject to one or more prior mortgages.
Heritable Bond
In Scotch law, a bond for a sum of money to which
is joined a conveyance of land or of heritage, to be held
by the creditor in security of the debt.
Income Bonds
Bonds on which interest is payable only when earned
and after payment of interest upon prior mortgages.
Indemnity Bond
See Indemnity Bond.
Liability Bond
One which is intended to protect the assured from liability for damages or to protect the persons damaged by
injuries occasioned by the assured as specified, when such
liability should accrue, and be imposed by law, as by a
court, as distinguished from an indemnity bond, whose
purpose is only to indemnify the assured against actual
loss by way of reimbursement for moneys paid or which
must be paid. Fenton v. Poston, 114 Wash. 217, 195 P.
31, 33.
Lloyd's Bond
A bond issued for work done or goods delivered and
bearing interest.
Municipal Bond
See Municipal bonds.
Official Bond
A bond given by a public officer, conditioned that he
shall well and faithfully perform all the duties of the office.
The term is sometimes made to include the bonds of executors, guardians, trustees, etc.
Railroad Aid Bonds
Bonds issued by municipal corporations to aid in the
construction of railways.
Redelivery Bond
A statutory bond given by a person in whose possession
attached property is found in order to regain possession of
the property. Burnham-Munger-Root Dry Goods Co. v.
Strahl, 102 Neb. 142, 166 N.W. 266.
Simple Bond
At common law, a bond without penalty; a bond for the
payment of a definite sum of money to a named obligee on
demand or on a day certain. Burnside v. Wand, 170 Mo.
531, 71 S.W. 337, 62 L.R.A. 427.
Single Bond
A deed whereby the obligor obliges himself, his heirs,
executors, and administrators, to pay a certain sum of
money to the obligee at a day named, without terms of
defeasance.
Straw Bond
A bond upon which is used either the names of fictitious
persons or those unable to pay the sum guaranteed; generally applied to insufficient bail bonds, improperly taken.
BONDAGE. Slavery; involuntary personal servitude; captivity. In old English law, villenage,
villein tenure. 2 B1.Comm. 92.
225
BONDED
BONDED INDEBTEDNESS. Indebtedness lawfully contracted for corporate purposes, payable
from taxes on all property within municipality.
Bolton v. Wharton, 163 S.C. 242, 161 S.E. 454, 460.
BONDED WAREHOUSE. See Warehouse System.
BONDSMAN. A surety; one who has entered into a bond as surety. The word seems to apply especially to the sureties upon the bonds of officers,
trustees, etc., while bail should be reserved for
the sureties on recognizances and bail-bonds. Haberstich v. Elliott, 189 Ill. 70, 59 N.E. 557.
BONES GENTS. L. Fr. In old English law.
Good men (of the jury).
BONI HOMINES. In old European law. Good
men; a name given in early European jurisprudence to the tenants of the lord, who judged each
other in the lord's courts. 3 Bl.Comm. 349.
property, acquired by a title not known to the civil
law, but introduced by the praetor, and protected
by his imperium or supreme executive power, e. g.,
where res mancipi had been transferred by mere
tradition. Poste's Gaius Inst. 187. See Quiritarian Ownership.
BONO ET MALO. A special writ of jail delivery,
which formerly issued of course for each particular prisoner. 4 Bl.Comm. 270.
BONUM DEFENDENTIS EX INTEGRA CAUSA;
MALUM EX QUOLIBET DEFECTU. The success of a defendant depends on a perfect case;
his loss arises from some defect. 11 Coke, 68a.
BONUM NECESSARIUM EXTRA TERMINOS
NECESSITATIS NON EST BONUM. A good
thing required by necessity is not good beyond the
limits of such necessity. Hob. 144.
BONUS. A consideration or premium paid by a
company for a charter or other franchise or
privilege. Com. v. Transp. Co., 107 Pa. 112;
for privilege of carrying on corporate business,
United Gas Improvement Co. v. Burnet, C.C.A.3,
64 F.2d 957, 958. A consideration for what is received, and advantage or benefit given in return
for a benefit received, or an inducement for conBONI JUDICIS EST AMPLIARE JUSTITIAM.
ferring a benefit. Church v. Winship, 175 La. 816,
It is the duty of a good judge to enlarge or ex144 So. 585, 586. "A definite sum to be paid at
tend justice. 1 Burr. 304.
one time, for a loan of money for a specified peBONI JUDICIS EST JUDICIUM SINE DILAriod, distinct from and independently of the inTIONE MANDARE EXECUTIONI. It is the duty
terest." Association v. Wilcox, 24 Conn. 147. A
of a good judge to cause judgment to be executed gratuity to which the recipient has no right to
without delay. Co.Litt. 289.
make a demand. Walling v. Plymouth Mfg. Corporation, C.C.A.Ind., 139 F.2d 178, 182. A preBONI JUDICIS EST LITES DIRIMERE, NE LIS
mium or extra or irregular remuneration in conEX LITE ORITUR, ET INTEREST REIPUBLICIFI sideration of offices performed or to encourage
UT SINT FINES LITIUM. It is the duty of a
their performance. Willkie v. Commissioner of
good judge to prevent litigations, that suit may
Internal Revenue, C.C.A.6, 127 F.2d 953, 956. A
not grow out of suit, and it c4ncerns the welfare
premium paid to a grantor or vendor. An adof a state that an end be put to litigation. 4 Coke,
vance royalty. Sneed v. Commissioner of Internal
15b; 5 Coke, 31a.
Revenue, C.C.A.Tex., 119 F.2d 767, 770. An "arbitrary award" given without reference to qualificaBONIFICATION. The remission of a tax, partictions for position. Thomas v. Kern, 280 N.Y. 236,
ularly on goods intended for export, having the
20 N.E.2d 738, 740. 'An extra consideration given
same effect as a bonus or drawback. A device enfor what is received, or something given in addiabling a commodity to be exported and sold in tion to what is ordinarily received by, or strictly
the foreign market as if it had not been taxed.
due, the recipient. La Juett v. Coty Mach. Co.,
U. S. v. Passavant, 169 U.S. 16, 18 S.Ct. 219, 42 L.
153 Misc. 410, 275 N.Y.S. 822. An increase in
Ed. 644.
salary or wages in contracts of employment. Attorney General v. City of Woburn, 317 Mass. 465,
BONIS CEDERE. In the civil law. To make a
58 N.E.2d 746, 747. An offer to employees to protransfer or surrender of property, as a debtor did
cure efficient and faithful service. Roberts v.
to his creditors. Cod. 7, 71.
Mays Mills, 184 N.C. 406, 114 S.E. 530, 532, 28 A.
L.R. 338; Duffy Bros. v. Bing & Bing, 217 App.
BONIS NON AMOVENDIS. A writ addressed to
Div. 10, 215 N.Y.S. 755, 758. Any premium or adthe sheriff, when a writ of error has been brought,
vantage. Consideration or down payment for
commanding that the person against whom judgmineral lease or transfer of oil lands. State Nat.
ment has been obtained be not suffered to remove
Bank of Corpus Christi v. Morgan, Tex.Civ.App.,
his goods till the error be tried and determined.
123 S.W.2d 1036, 1038; In re Levy, 185 Okl. 477, 94
Reg. Orig. 131.
P.2d 537, 539; Gift in recognition of officer's past
successful direction of corporate affairs. Thomas
BONITARIAN OWNERSHIP. In Roman law.
v. Commissioner of Internal Revenue, C.C.A.La.,
A species of equitable title to things, as distinguished from a title acquired according to the
135 F.2d 378, 379. "Interest" for the purpose of
strict forms of the municipal law; the property of 'the usury law. Bowen v. Mt. Vernon Sa y . Bank,
a Roman citizen in a subject capable of quiritary
70 App.D.C. 273, 105 F.2d 796, 797.
226
BONI JUDICIS EST AMPLIARE JURISDICTIONEM. It is the part of a good judge to enlarge
(or use liberally) his remedial authority or jurisdiction. 1 C.B.N.S. 255; 4 Bingh.N.C. 233; 4 Scott
N.R. 229.
BOOK
The word "bonus" may in its natural import imply a
gift or gratuity. Carson v. Olcott, 105 Or. 259, 209 P. 610,
611. No distinction may be made between a soldier's
"bonus" given for past service and a "pension," the one
being a reward for past military services payable at once,
and the other such a reward payable in installments. People v. Westchester County Nat. Bank of Peekskill, 231 N.Y.
465, 132 N.E. 241, 243, 15 A.L.R. 1344.
r
BONUS JUDEX SECUNDUM i EQUUM ET BONUM JUDICAT, ET 1EQUITATEM STRICTO JURI
PRIEFERT. A good judge decides according to
what is just and good, and prefers equity to strict
law. Co.Litt. 34.
BONUS STOCK. Technically, stock issued to the
purchasers of bonds as an inducement to them
to purchase bonds or loan money. California
Trona Co. v. Wilkinson, 20 Cal.App. 694, 130 P.
190, 194.
BONY. Slate and 'other refuse from mine. Maksimshuk v. Union Collieries Co., 128 Pa.Super. 86,
193 A. 669, 671, 672, 673.
BOODLE. Usually applied to designate the money held to be paid or paid as a bribe for corrupt official action. Boehmer v. Detroit Free Press Co.,
94 Mich. 7, 9, 53 N.W. 822, 823, 34 Am.St.Rep.
318.
BOODLING. In the slang of the day, corrupt legislative practices and corrupt influences affecting
legislation. Julian v. Kansas City Star Co., 209
Mo. 35, 107 S.W. 496, 501.
BOOK. An assembly or concourse of ideas expressed in words. U. S. v. One Obscene Book Entitled "Married Love", D.C.N.Y., 48 F.2d 821, 823.
A literary composition which is printed; a printed
composition bound in a volume. Scoville v. Toland, 21 Fed.Cas. 864. The largest subdivisions of
a treatise or other literary composition.
A bound volume consisting of sheets of paper, not
printed, containing manuscript entries; such as a merchant's account-books, dockets of courts, etc. A manuscript as a "book". In re Beecher's Estate, 17 Pa.C.C.R.
161; 8 L.J.Ch. 105. "Financial statement" of bank
"book". State v. Cloutier, 181 La. 222, 159 So. 330.
Minute book of bank as "book." Lewis v. U. S., C.C.A.
Okl., 22 F.2d 760, 764. Papers prepared in the progress of
a cause, though entirely written, and not at all in the
book form, such as demurrer-books, error-books, paperbooks, etc. Photographs as books. Marietta Mfg. Co. v.
Hedges-Walsh-Weidner Co., 9 W.W.Harr. 511, 2 A.2d 922,
927. Records made on loose sheets as book. Town of Bennington v. Booth, 101 Vt. 24, 140 A. 157, 159, 57 A.L.R. 156.
X-ray pictures as books. Whetsel v. Shaw, 343 Pa. 182, 22
A.2d 751, 753.
In copyright law, the term may include a pamphlet, a
magazine, a collection of blank forms, or a single sheet of
music or of ordinary printing. U. S. v. Bennett, 24 Fed.
Cas. 1,093; M. Witmark & Sons v. Standard Music Roll
Co., N.J., 221 F. 376, 380, 137 C.C.A. 184. A term which
distinguishes writings from such other copyrightable subjects. Sebring Pottery Co. v. Steubenville Pottery Co.,
D.C.Ohio, 9 F.Supp. 384, 386.
in which a detailed history of business transactions is entered; a record of goods sold or
services rendered; a statement in detail of the
transactions between parties. Tillson v. Peters,
41 Cal.App.2d 671, 107 P.2d 434, 438.
Entire account between parties at time action Is commenced. Gardner v. Rutherford, 57 Cal.App.2d 874, 136
P.2d 48, 52. Entries on loose pages. Foothill Ditch Co. v.
Wallace Ranch Water Co., 25 Cal.App.2d 555, 78 P.2d 215,
220.
Book Debt
The words "book debt" include goods sold and
delivered, and work, labor, and services performed, the evidence of which consists of entries
in an original book. Hamill v. O'Donnell, 2 Miles,
Pa., 102.
Book of Acts
A term applied to the records of a surrogate's
court. 8 East, 187.
Book of Adjournal
In Scotch law. The original records of criminal
trials in the court of justiciary.
Book of Original Entries
A book in which a merchant enters from day
to day a record of his transactions. McKnight v.
Newell, 207 Pa. 562, 57 A. 39. A book kept for
charging goods sold and delivered, in which the
entries are made contemporaneously with the delivery of the goods. United Grocery Co. v. J. M.
Dannelly & Son, 93 S.C. 580, 77 S.E. 706, Ann.Cas.
1914D, 489. A book in which a detailed history of
business transactions is entered. Nicola v. U. S.,
C.C.A.Pa., 72 F.2d 780, 783.
Distinguished from such books as a ledger. But see
Cassil v. Carter, 98 Okl. 49, 223 P. 685, 686. Workmen's
slips for repairs done on automobiles, although not bound
in book form. H. W. Emeny Auto Co. v. Neiderhauser,
175 Iowa 219, 157 N.W. 143, 144.
Book of Rates
An account or enumeration of the duties or tariffs authorized by parliament. 1 Bl.Comm. 316.
Book of Responses
In Scotch law. An account which the directors
of the chancery kept to enter all non-entry and
relief duties payable by heirs who take precepts
from chancery.
Book Value
As applied to stock, the" value shown by deducting liabilities and other matters required to be deducted from assets, Elhard v. Rott, 36 N.D. 221,
162 N.W. 302; Gurley v. Woodbury, 177 N.C. 70,
97 S.E. 754, 756; the value determined by net
profits or deficit, Davis v. Coshnear, 129 Me. 334,
Book Account
151 A. 725, 727. The value found by adding to par
value the plus value of surplus, In re Fisher's EsA detailed statement, in the nature of debits
tate, 344 Pa. 607, 26 A.2d 192, 196. As applied to
and credits between persons; an' account or
finance, the value of anything as shown in books
record of debit and credit kept in a book. Taylor
v. Horst, 52 Minn. 300, 54 N.W. 734; Wright of account. Davis v. Coshnear, 129 Me. 334, 151
v. Loaiza, 177 Cal. 605, 171 P. 311. A book A. 725, 727.
227
BOOK
"Book value" of a business is based upon actual costs of
a stock of merchandise and accounts on hand less depreciation. Mills v. Rich, 249 Mich. 489, 229 N.W. 462, 463.
"Book value" of building and loan stock is proportionate
amount of net assets applicable. Thirteenth Ward Building & Loan Ass'n of Newark v. Weissberg, 115 N.J.Eq. 487,
170 A. 662, 665, 98 A.L.R. 134.
Bookland
In English law. Land, also called "charterland," which was held by deed under certain rents
and free services, and differed in nothing from
free socage land. 2 Bl.Comm. 90.
Books
All the volumes which contain authentic reports
of decisions in English courts, from the earliest
times to the present, are called, par excellence,
"The Books." Wharton.
Books of Account
Books in which merchants, traders, and business
men generally keep their accounts. Colbert v.
Piercy, 25 N.C. 80. Entries made in the regular
course of business. Nicola v. U. S., C.C.A.Pa., 72
F.2d 780, 783. Entries on loose leaves or cards.
12 Okl.St.Ann. § 501. Maney , v. Cherry, 170 Okl.
469, 41 P.2d 82, 83. Serial, continuous, and permanent memorials of business and affairs. Cudahy
Packing Co. v. U. S., C.C.A.I11., 15 F.2d 133, 136.
Broderick v. Adamson, 159 Misc. 634, 288 N.Y.S.
688, 696.
Pad slips, cash register items, and adding machine slips,
pinned together and preserved. Home Ins. Co. v. Flewellen, Tex.Civ.App., 221 S.W. 630, 631. A diary. State v.
Coffey, 8 Wash.2d 504, 112 P.2d 989, 991. A ledger of
accounts. In re Anderson, D.C.N.Y., 35 F.Supp. 717, 719.
A memorandum. Brett v. Dean, 239 Ala. 675, 196 So. 881,
883. A pay-roll book. Hirsch v. Automatic Canteen Co.
of America, 296 Ill. App. 47, 15 N.E.2d 888.
Books of Bank
Stock books of bank. Broderick v. Adamson,
159 Misc. 634, 288 N.Y.S. 688, 696.
Books of Corporations
"Books, records, and papers" of corporations as
interchangeable terms. Birmingham News v.
State, 207 Ala. 440, 93 So. 25, 26. Whatever is
kept as written evidence of official doings and
business transactions. First Nat. Bank of Colorado Springs v. Holt, Mo.App., 158 S.W.2d 229, 231.
Books of Tax Receiver
Tax digests, copies of which must be placed in
hands of state revenue commissioner, tax collector, etc. Cady v. State, 198 Ga. 99, 31 S.E.2d 38,
43.
Face of Book
See Face of Book.
Office Book
See Office.
BOOKED. Engaged, destined, bound to promise
or pledge oneself to make an engagement. Mente
& Co. v. Heller, 99 N.J.Law, 475, 123 A. 755, 756.
BOOKING CONTRACT. A contract made by
agents who procure contracts for appearance of
acts and actors in theaters. Hart v. B. F. Keith
Vaudeville Exchange, C.C.A.N.Y., 12 F.2d 341, 342,
47 A.L.R. 775.
BOOKMAKER. A professional betting man, especially one connected with the turf. City of
Portland v. Duntley, Or., 203 P.2d 640, 644.
BOOKMAKING. Originally, the collection of
sheets of paper or other substances on which entries could be made, either written or printed.
People ex rel. Lichtenstein v. Langan, 196 N.Y.
260, 89 N.E. 921, 922, 25 L.R.A.,N.S., 479, 17 Ann.
Cas. 1081. The term now commonly denotes the
recording or registering of bets or wagers on any
trial or contest of speed or power of endurance or
selling pools. People of State of New York v.
Bennett, C.C.N.Y., 113 Fed. 515, 516. A species of
betting on horse races. Ex parte Hernan, 45
Tex.Cr.R. 343, 77 S.W. 225, 226. The bets are
booked or a record kept of them in a book. Spies
v. Rosenstock, 87 Md. 14, 39 A. 268, 269.
BOOKMAKING ESTABLISHMENT. Where wagers are made on horse races being run at tracks
in various parts of United States. Albright v.
Karston, 206 Ark. 307, 176 S.W.2d 421, 422.
BOOM. An inclosure formed by piers and a chain
of spars to collect or store logs or timber. Powers' Appeal, 125 Pa. 175, 17 A. 254, 11 Am.St.Rep.
882; Gasper v. Heimbach, 59 Minn. 102, 60 N.W.
1080. Spars or logs and chains or other fixtures
used to keep them in place. Rollins v. Clay, 33
Me. 132, 138.
BOOM COMPANY. A company formed to improve streams for floating of logs by booms and
other contrivances, and to run, drive, boom and
raft logs.
BOOMAGE. A charge on logs for use of a boom
in collecting, storing, or rafting them. Lumber
Co. v. Thompson, 83 Miss. 499, 35 So. 828. A
right of entry on riparian lands to fasten booms
and boom sticks. Farrand v. Clarke, 63 Minn. 181,
65 N.W. 361.
BOON DAYS. In English law. Certain days in
the year (sometimes called "due days") on which
tenants in copyhold were obliged to perform corporal services for the lord. Whishaw.
BOOSTED FIRE. A fire wherein some inflammable substance other than that of which the
building was constructed or which it contained
contributed to its burning and spreading. State v.
Lytle, 214 Minn. 171, 7 N.W.2d 305, 309.
BOOT, or BOTE. An old Saxon word, equivalent
Reference Books
to "estovers."
Books to refer to. State v. Innes, 89 Kan. 168,
BOOTHAGE. See Bothagitlm.
130 P. 677, 679,
228
BORN
BOOTING, or BOTING, CORN. Certain rent corn,
anciently so called. Cowell.
BOOTLEGGER. A seller of whisky. Medlock v.
State, 79 Tex.Cr.R. 322, 185 S.W. 566, 568. One
engaged in unlawful disposition of liquor. Hathaway v. Benton, 172 Iowa 299, 154 N.W. 474, 476.
One who sells liquor on the sly. Knothe v. State,
115 Neb. 119, 211 N.W. 619, 621.
BOOTLEGGING. A popular designation for the
use, possession, or transportation of liquor in violation of the law, Commonwealth v. Cicere, 282
Pa. 492, 128 A. 446, 448, importing the peddling
and illegal sales of intoxicating liquor, Lamar v.
State, 190 Ind. 235, 130 N.E. 114.
BOOTSTRAP DOCTRINE. The decision of a
court on a special as well as a general appearance
that it has jurisdiction is not subject of collateral
attack but is res judicata. Peri v. Groves, 183
Misc. 579, 50 N.Y.S.2d 300, 308.
BOOTY. Property captured from the enemy in
war, on land. U. S. v. Bales of Cotton, 28 Fed.
Cas. 302.
BOOZE. Intoxicating liquor. Tennant v. F. C.
Whitney & Sons, 133 Wash. 581, 234 P. 666, 669.
BORD. An old Saxon word, signifying a cottage;
a house; a table.
BORD-BRIGCH. In Saxon law. A breach or violation of suretyship; pledge-breach, or breach of
mutual fidelity.
BORD-HALFPENNY. A customary small toll
paid to the lord of a town for setting up boards,
tables, booths, etc., in fairs or markets.
BORDAGE. In old English law. A species of
base tenure, by which certain "bord lands" were
anciently held in England; the service was that
of keeping the lord in small provisions.
board or table. Cowell. Also lands held in bondage. Lands which the lord gave to tenants on condition of supplying him with small provisions, etc.
BORDLODE. A service anciently required of tenants to carry timber out of the woods of the lord
to his house; or it is said to be , the quantity of
food or provision which the bordarii or bordmen
paid for their bordlands. Jacob.
BORDSERVICE. A tenure of bordlands.
BOREL-FOLK. Country people; derived from
the French bourre, ( Lat. floccus,) a lock of wool,
because they covered their heads with such stuff.
Blount.
BORG. In Saxon law. A pledge, pledge giver, or
surety. The name given among the Saxons to the
head of each family composing a tithing or decennary, each being the pledge for the good conduct
of the others. Also the contract or engagement
of suretyship; and the pledge given.
BORGBRICHE. A breach or violation of suretyship, or of mutual fidelity. Jacob.
BORGESMON. In Saxon law. The name given
to the head of each family composing a tithing.
BORGH OF HAMHALD. In old Scotch law. A
pledge or surety given by the seller of goods to the
buyer, to make the goods forthcoming as his own
proper goods, and to warrant the same to him.
Skene.
BORN. A child en venire sa mere. Merrill v.
Winchester, 120 Me. 203, 113 A. 261, 264. If an
infant is born dead or at such an early stage of
pregnancy as to be unable to live, it is to be considered as never born. Marsellis v. Thalhimer, 2
Paige, Ch., N.Y., 35.
BORDARII, or BORDIMANNI. In old English
law. Tenants of a less servile condition than the
villani, who had a bond or cottage, with a small
parcel of land, on condition they should supply the
lord with small provisions. Spelman.
BORN ALIVE. Where child, although it never
cried, breathed and its heart beat some minutes,
it was "born alive." Sanford v. Getman, 124 Misc.
80, 206 N.Y.S. 865. A child never heard to cry, but
whose heart beats could be heard, though no
respiration could be induced, was "born alive." In
re Union Trust Co., 89 Misc. 69, 151 N.Y.S. 246.
253.
BORDER WARRANT. A process granted by a
judge ordinary, on either side of the border between England and Scotland, for arresting the
person or effects of a person living on the opposite side, until he find security, judicio sisti. Bell.
BORN OUT OF WEDLOCK. Children whose parents are not, and have not been, married to each
other regardless of marital status of either parent
with respect to another. State v. Coliton, 73 N.D.
582, 17 N.W.2d 546, 549, 552, 156 A.L.R. 1403.
BORDARIA. A cottage.
BORN OUTSIDE THE UNITED STATES. Where,
at time of birth of children born in the United
States, their father was a duly accredited diplomatic representative of the French Republic to the
United States, they became subject to the jurisdiction of France, and were "born outside of the
United States" within the naturalization provisions
of section 315 of the Nationality Act of 1940, 8
BORDLANDS. The demesnes which the lords U.S.C.A. § 715. In re Thenault, D.C.D.C., 47 F.
keep in their hands for the maintenance of their
Supp. 952, 953.
229
BORDEREAU. In French law. A note enumerating the purchases and sales which may have been
made by a broker or stockbroker. This name
is also given to the statement given to a banker
with bills for discount or coupons to receive.
Arg.Fr.Merc.Law, 547. A detailed statement of
account; a summary of an instrument.
BOROUGH
BOROUGH.
In English Law
A town, a walled town. Co.Litt. 108b. A town
of note or importance; a fortified town. Cowell.
An ancient town. Litt. 164. A corporate town
that is not a city. Cowell. An ancient town, corporate or not, that sends burgesses to parliament.
Co.Litt. 109a; 1 Bl.Comm. 114, 115. A city or
other town sending burgesses to parliament. 1
Steph.Comm. 116. In its more modern English
acceptation, a town or city or place organized for
government.
A parliamentary borough is a town which returns one or
more members to parliament.
In Scotch Law
A corporate body erected by the charter of the
sovereign, consisting of the inhabitants of the
territory erected into the borough. Bell.
In American Law
In Pennsylvania, Connecticut and New Jersey,
a part of a township having a charter for municipal purposes. Southport v. Ogden, 23 Conn.
128. See, also, 1 Dill.Mun.Corp. § 41, n.
A territorial fraction of a city having certain powers
with reference to local concerns. Crose v. City of Los
Angeles, 175 Cal. 774, 167 P. 386, 387. "Village" and
"borough" as duplicate or cumulative names of the same
thing. Brown v. State, 18 Ohio St. 496.
Borough Courts
In English law. Private and limited tribunals,
held by prescription, charter, or act of parliament,
in particular districts for the convenience of the
inhabitants, that they may prosecute small suits
and receive justice at home.
Borough English A custom prevalent in some parts of England,
by which the youngest son inherits the estate in
preference to his older brothers. 1 Bl.Comm. 75.
The custom is said by Blackstone to have been derived
from the Saxons, and to have been so called in distinction
from the Norman rule of descent; 2 Bla.Comm. 83.
Borough Fund
In English law. The revenues of a municipal
borough from rents and produce of its land,
houses, and stocks and supplemented where necessary by a borough rate.
Borough-Heads
Borough-holders, bors-holders, or burs-holders.
Borough-Reeve
The chief municipal officer in towns unincorporated before the municipal corporations act, 5 &
6 Wm. IV, c. 76.
Pocket Borough
A borough entitled to send a representative to
parliament, in which a single individual could entirely control the election.
BORRASCA. Absence of profit, or not enough
profit to pay the cost of operation, of a placer
mine. Ballagh v. Williams, 50 Cal.App.2d 10, 122
P.2d 343, 344.
BORROW. To solicit and receive from another
any article of property or thing of value with the
intention and promise to repay or return it or its
equivalent.
Strictly speaking, borrowing implies a gratuitous loan.
Carter-Mullaly Transfer Co. v. Angell, Tex.Civ.App., 181
S. W. 237, 238. But money may be "borrowed" on an
agreement to pay interest for its use. Legal Tender Cases,
110 U.S. 421, 4 S.Ct. 122, 28 L.Ed. 204. Though the word
is often used in the sense of returning the thing borrowed
in specie, where money is borrowed, the identical money
loaned is not to be returned. In a broad sense the term
means a contract for the use of money. State v. School
Dist., 13 Neb. 88, 12 N.W. 812. The term may be used to
express the idea of receiving something from another for
one's own use, to appropriate. Finch v. McClellan, 77 Ind.
App. 533, 130 N.E. 13, 15. The word "loan" is the correlative of "borrow." U. S. v. Warn, D.C.Idaho, 295 F. 328,
330. The term when used in connection with lending an
automobile chauffeur does not imply that the owner surrenders control over him. Hooper v. Brawner, 148 Md. 417,
129 A. 672, 677. Compare Henderson v. State, 75 Fla. 464,
78 So. 427, 428, holding that an indictment alleging that
defendant "did borrow" a shotgun sufficiently alleged that
defendant received the shotgun into his possession. The
right to borrow money as applied to a municipal corporation is a power to create indebtedness. Jones v. Board of
Education of Guilford County, 185 N.C. 303, 117 S.E. 37, 40.
Agreement by building and loan association, in purchasing residence property on which it had a first mortgage, to
assume a second mortgage. Gardner v. Johns, 64 Ohio
App. 229, 28 N.E.2d 691, 694.
"Borrow" has been held the reciprocal action with "to
lend". Bank of United States v. Drapkin & Goldberg
Const. Co., City Ct., N.Y., 11 N.Y.S.2d 334, 336. Dirt taken
from plots of ground near sides of highway embankment.
State v. Smith, 167 La. 301, 119 So. 56, 61. Earth brought
from outside highway location and used for embankments.
Barry v. Duffin, 290 Mass. 398, 195 N.E. 511, 514.
BORROW PIT. A pit or bank from which material is taken for use in filling or embanking.
Haynes v. Jones, 91 Ohio St. 197, 110 NE. 469, 470.
BORROWE. In old Scotch law. A pledge.
BORROWED CAPITAL. Moneys due by corporation to another corporation used as its capital.
State v. Banana Selling Co., 185 La. 668, 170 So.
30, 32.
Amount standing on books to personal credit of stockholders credited without restriction or limitation on stockholders as to manner or time of payment to them of respective accounts. Weed & Bro. v. U. S., Ct.C1., 38 F.2d 935,
940. Dividends declared by corporation but not paid during taxable year. Bulger Block Coal Co. v. U. S., Ct.Ci.,
48 F.2d 675, 677; Southport Mill v. Commissioner of Internal Revenue, C.C.A.La., 26 F.2d 17. Payment of losses
sustained by corporation by its principal stockholder.
State v. Mayer Sugar & Molasses Co., 204 La. 742, 16 So.2d
251, 253.
BORROWED MONEY OR PROPERTY. Notes
Borough Sessions
and bonds given in payment of assets. Coal Co.
Courts of limited criminal jurisdiction, estab- v. United States, C.C.A.W.Va., 137 F.2d 948, 953.
Credit by bank to payee's account of amount of
lished in English boroughs under the municipal
customer's notes taken in lieu of cash. Departcorporations act.
230
BOTTOMRY
ment of Treasury (Gross Income Tax Division)
v. Advance Paint Co., 222 Ind. 294, 53 N.E.2d 59.
Profits loaned by partners to partnership. Nye v.
U. S., C.C.A.Mass., 84 F.2d 457, 462.
BORROWER. He to whom a thing is lent at his
request.
Under usury •statute, one having the use of money by
forbearance of his creditor, or any person who secures the
use of money in any way upon an excessive consideration,
Law, Clark & Co. v. Mitchell, 200 Ala. 565, 76 So. 923, 924;
the party who is bound by original contract to pay loan,
Faber v. Siegel, 286 N.Y.S. 974, 158 Misc. 722; the purchaser of land subject to usurious mortgage and subsequent
mortgagees, Hatch v. Baker, 249 N.Y.S. 215, 217, 139 Misc.
717; the indorser of note who received no part of money
advanced and who was mere surety, Faber v. Siegel, 286
N.Y.S. 974, 158 Misc. 722.
BORROWING POWER. Signifies only an unfunded indebtedness. Bond v. Cowan, 272 Mich.
296, 261 N.W. 331.
BORROWINGS. Checks by bank against second
bank anti honored while items deposited.by former
were in process of collection. Guaranty by bank
of transaction where another bank issued letter of
credit for first bank's customer. Indebtedness
represented by notes given by bank when borrowing money. Overdrafts by bank maintaining
checking account with another bank. Schramm
v. Bank of California Nat. Ass'n, 143 Or. 546, 20
P.2d 1093, 1096.
BORSHOLDER. In Saxon law. The borough's
ealder, or headborough.
BOSCAGE. In English law. The food which wood
and trees yield to cattle; browsewood mast, etc.
Spelman. An ancient duty of wind-fallen wood in
the forest. Manwood.
BOSCARIA. Wood-houses, or ox-houses.
BOSCUS. Wood; growing wood of any kind, large
or small, timber or coppice. Cowell; Jacob.
BOSTON CREAM PIE. Two layers of sponge
cake with a layer of a sort of cream custard.
Lohse v. Coffey, D.C.Mun.App., 32 A.2d 258, 259.
BOTH. The one and the other; the two without
the exception of either. Lower Indian Creek
Drainage and Levee Dist. of Cass County v.
Vallery, 343 Ill. 49, 174 N.E. 842, 843. All of two,
United States v. Bachman, D.C.Pa., 246 F. 1009,
1011. The term likewise has a meaning which
excludes more than two mentioned subject matters. In re Turner's Estate, 171 Misc. 78, 11 N.Y.
S.2d 800, 802.
"Either," may mean "both." Kibler v. Parker, 191 Ark.
475, 86 S.W.2d 925, 926.
Both Real and Personal
Use in will to indicate all of testatrix' property. Hoffman v. Hoffman, 61 Ohio App. 371, 22 N.E.2d 652, 654.
BOTHA. In old English law. A booth, stall, or
tent to stand in, in fairs or markets. Cowell.
BOTHAGIUM, or BOOTHAGE. Customary dues
paid to the lord of a manor or soil, for the pitching or standing of booths in fairs or markets.
BOTHNA, or BUTHNA. In old Scotch law. A
park where cattle are inclosed and fed. Bothna
also signifies a barony, lordship, etc. Skene.
BOTILER OF THE KING. An officer who provided the king's wines. By virtue of his office,
he might choose, .out of every ship laden with
wines, one cask before the mast, and one behind.
25 Edw. III, st. 5, c. 21. Wharton. Cf. Butlerage.
BOTTELLARIA. A buttery or cellar, in which
bottles or butts of wine and other liquors are
deposited. Wharton.
BOTTLE. An open mouthed vessel, with a neck
with an aperture which may be closed, capable of
containing liquids. Fieldcrest Dairies v. City of
Chicago, D.C.Ill., 35 F.Supp. 451, 452.
BOTTOM HOLE CONTRACT. When operator
drills a well to a certain depth, the owners or persons for whom the well is drilled will pay a certain
sum. Barnett v. Kemerer, 179 Okl. 588, 66 P.2d
1053, 1055.
BOTTOM LAND. As used in a contract to convey
means low land formed by alluvial deposits along
the river, low-lying ground, a dale, valley, or intervale. Lexington & E. Ry. Co. v. Williams, 183 Ky.
343, 209 S.W. 59, 62.
BOTE, BOT. In old English law. A recompense
or compensation, or profit or advantage. Also
reparation or amends for any damage done. Necessaries for the maintenance and carrying on of
husbandry. An allowance; the ancient name for
BOTTOMAGE. L. Fr. Bottomry.
estovers.
House-bote is a sufficient allowance of wood
BOTTOMRY. In maritime law. A contract by
from off the estate to repair or burn in the house,
which the owner of a ship borrows for the use,
and sometimes termed "fire-bote ;" plow-bote and equipment, or repair of the vessel, and for a
definite term, and pledges the ship (or the keel or
cart-bote are wood to be employed in making and
repairing all instruments of husbandry; and hay- bottom of the ship, pars pro toto) as security;
it being stipulated that if the ship be lost in the
bote or hedge-bote is wood for repairing of hays,
hedges, or fences. The word also signifies reparaspecified voyage, or during the limited time, by
tion for any damage or injury done, as man-bote, any of the perils enumerated, the lender shall lose
which was a compensation or amends for a man
his money. Carrington v. The Pratt, 18 How. 63,
slain, etc.
15 L.Ed. 267; Braynard v. Hoppock, 7 Bosw.N.Y.
157.
BOTELESS. In old English law. Without amends;
A contract by which a ship or its freightage is hypothewithout the privilege of making satisfaction for
cated as security for a loan, which is to be repaid only in
a crime by a pecuniary payment; without relief
case the ship survives a particular risk, voyage, or period.
or remedy. Cowell.
Civ.Code Cal. § 3017. The contract usually in form a bond.
231
BOTTOMRY
When the loan is not made on the ship, but on the goods
on board, and which are to be sold or exchanged in the
course of the voyage, the borrower's personal responsibility is deemed the principal security for the performance of
the contract, which is therefore called "respondentia."
• such as night clubs and other places of amusement
where people indulge in dancing, drinking and in
gambling. Moore v. Blanchard, La.App., 35 So.2d
667, 669.
BOTTOMRY BOND. The instrument embodying
the contract or agreement of bottomry. A contract for a loan on the bottom of the ship, at an
extraordinary interest, upon maritime risks, to be
borne by the lender for a voyage, or for a definite
period. The Grapeshot, 9 Wall. 135, 19 L.Ed.
651.
BOUND. As an adjective, denotes the condition of
being constrained by the obligations of a bond or
a covenant.
BOTULISM. Food poisoning caused by a toxin
which is produced by Clostridium (bacillus) botulinum. Armour & Co. v. Leasure, 177 Md. 393, 9
A.2d 572, 575.
BOUCHE, Fr. The mouth. An allowance of
provision. Avoir bouche a court; to have an
allowance at court; to be in ordinary at court;
to have meat and drink scotfree there. Blount;
Cowell.
BOUCHE OF COURT, or BUDGE OF COURT.
A certain allowance of provision from the king to
his knights and servants, who attended him on any
military expedition.
BOUGH OF A TREE. In feudal law. A symbol
which gave seisin of land, to hold of the donor in
capite.
BOUGHT. The word "bought" implies a completed
transaction, a vesting of the right of title to and
possession of the property sold, Bull v. Morrison,
Tex.Civ.App., 241 S.W. 561, 562, and also imports
a valuable consideration, Grimes v. State, 32 Ga.
App. 541, 123 S.E. 918.
BOUGHT AND SOLD NOTES. A note of the
sale by a broker employed to buy and sell goods
is called a "sold note," and a like note to the seller
is called a "bought note." Avondale Mills v.
Benchley Bros., 244 Mass. 153, 138 N.E. 586, 589.
BOULEVARD. The word originally indicated a
bulwark or rampart, and afterwards applied to a
public walk or road on the site of a demolished
fortification, and is now employed in same sense
as public drive. A street or highway with parklike appearance; or one specially designed for
pleasure walking or driving. Newbold v. Brotzge,
209 Ky. 218, 272 S.W. 755, 756; Chaplin v. Kansas
City, 259 Mo. 479, 168 S.W. 763, 765. A wide street,
or a street encircling a town, with sides or center
for shade trees, etc. State ex rel. Copland v.
City of Toledo, 75 Ohio App. 378, 62 N.E.2d 256,
258. It is adapted and set apart for purposes of
ornament, exercise, and amusement. See, also,
Avenue. A "public way", City of Medford v.
Metropolitan District Commission, 303 Mass. 537,
22 N.E.2d 110, 111.
It is not technically a street, avenue, or highway. Howe
v. Lowell, 171 Mass. 575, 51 N.E. 536; Park Com'rs v.
Farber, 171 Ill. 146, 49 N.E. 427. "Street" and "boulevard"
may be interchangeable. City of Fargo v. Gearey, 33 N.D.
64, 156 N.W. 552, 555.
BOUNCER. A term used to designate persons
employed to preserve the peace in establishments
In the law of shipping, "bound to" or "bound for" denotes that the vessel spoken of is intended or designed to
make a voyage to the place named. U. S. v. Bengochea,
C.C.A.Fla., 279 F. 537, 541.
"Bound" and "concluded" as synonymous. McKinnon v.
Chenoweth, 176 Or. 74, 155 P.2d 944, 954.
As a noun, denotes a limit or boundary, or a line inclosing or marking off a tract of land. In the phrase "metes
and bounds," denotes the natural or artificial marks which
indicate their beginning and ending. "Bound" may signify the limit itself, and "boundary" designate a visible
mark which indicates the limit. "Bound" and "duty" as
synonymous. Essenpreis v. Elliott's Department Store Co.,
Mo.App., 37 S.W.2d 458, 462.
BOUND BAILIFFS. In English law, Sheriffs'
officers are so called, from their being usually
bound to the sheriff in an obligation with sureties,
for the due execution of their office. 1 Bl.Comm.
345, 346.
BOUNDARY. Every separation, natural or artificial, which marks the confines or line of division
of two cdntiguous estates. Civ.Code La. art. 826.
Limits or marks of enclosures if possession be
without title, or the boundaries or limits stated
in title deed if possession be under a title. Snelling
v. Adair, 196 La. 624, 199 So. 782, 787.
"At the entrance" and "at the boundary" as synonymous. McGough v. Hendrickson, 58 Cal.App.2d 60, 136 P.
2d 110, 114. Banks or confines at ordinary high water as
boundary of water course. Beck v. Kulesza, 4 W.W.Harr.,
Del., 559, 156 A. 346, 349. Meander line as "boundary".
United States v. Elliott, C.C.A.Okl., 131 F.2d 720, 724.
Boundary Suit
Trespass to try title in which every matter in
dispute would be determined by determination of
boundary line. Southern Pine Lumber Co. v.
Whiteman, Tex.Civ.App., 104 S.W.2d 635, 637.
Case of Boundary
One where the location of the boundary is the
determining question of the entire case. West
Lumber Co. v. Goodrich, 113 T. 14, 223 S.W. 183,
191; Maxfield v. E. L. Sterling & Sons, 110 Tex.
212, 217 S.W. 937.
Natural Boundary
Any formation or product of nature which may
serve to define and fix one or more of the lines
inclosing an estate or piece of property. See
Peuker v. Canter, 62 Kan. 363, 63 P. 617.
Private Boundary
An artificial boundary set up to mark the
beginning or direction of a boundary line.
Public Boundary
A natural boundary; a natural object or landmark used as a boundary or as a beginning point
for a boundary line.
232
BOX
BOURSE DE COMMERCE. In the French law.
An aggregation, sanctioned by government, of
merchants, captains of vessels, exchange agents,
and courtiers, the two latter being nominated by
the government, in each city which has a bourse.
Brown.
BOUNDED TREE. A tree marking or standing
at the corner of a field or estate.
BOUNDERS. In American law. Visible marks
or objects at the ends of the lines drawn in surveys of land, showing the courses and distances.
Burrill.
BOUNDS. The external or limiting lines, either
real or imaginary, of any object or space; that
which limits or circumscribes. Stone v. Waukegan, C.C.A. 7, 205 F. 495, 496.
Contract as meant by "bounds". City of Elkins v. Stickley, 114 W.Va. 103, 170 S.E. 902, 903. Edges of road as
"bounds of the highway". Decker v. Roberts, 126 Conn.
478, 12 A.2d 541, 543. Trespass committed by a person who
excavates minerals under-ground beyond boundary of his
land as "working out of bounds."
BOUNTY. A gratuity, or an unusual or additional
benefit conferred upon, or compensation paid to, a
class of persons. Iowa v. McFarland, 110 U.S.
471, 4 S.Ct. 210, 28 L.Ed. 198; In re Hoag, D.C.
N.Y., 227 F. 478, 479. A premium given or offered
to enlisted men to induce enlistment into public
service. Abbe v. Allen, 39 How.Prac., N.Y., 488.
An amount appropriated by Congress to repay the city
for rental value of land taken for navy yard during Civil
War as not a bounty. Moyers v. City of Memphis, 135
Tenn. 263, 186 S. W. 105, 113, Ann.Cas.1918C, 854.
Bounty is the appropriate term where services or action
of many persons are desired, and each who acts upon the
offer may entitle himself to the promised gratuity. Reward is more proper in the case of a single service, which
can be only once performed, and therefore will be earned
only by the person or co-operative persons who succeed
while others fail. Ingram v. Colgan, 106 Cal. 113, 38 P.
315, 28 L.R.A. 187, 46 Am.St.Rep. 221. Bonus, suggests the
idea of a gratuity to induce a money transaction between
individuals. Abbott.
Bounty Lands
Portions of the public domain given or donated
as a bounty for services rendered, chiefly for
military service. See 43 U.S.C.A. § 791.
Bounty of Queen Ann
A name given to a royal charter, which was
confirmed by 2 Anne, c. 11, whereby all the revenue of first-fruits and tenths was vested in trustees, to form a perpetual fund for the augmentation of poor ecclesiastical livings. Wharton.
BOURDON TUBE. A pressure-responsive device
comprising a hollow tubular member. James P.
Marsh Corporation v. United States Gauge Co., D.
C.Ill., 42 F.Supp. 998, 1001.
BOURG.
In old French law. An assemblage of houses
surrounded with walls; a fortified town or village.
In old English law. A borough, a village.
BOURGEOIS. The inhabitant of a Bourg. A person entitled to the privileges of a municipal corporation; a burgess. A member of the middle
classes. People v. Gitlow, 234 N.Y. 132, 136 N.E.
317, 322.
BOURSE, Fr. An exchange; a stock-exchange.
BOUSSOLE. In French marine law. A compass;
the mariner's compass.
BOUWERYE. Dutch. In old New York law. A
farm; a farm on which the farmer's family
resided.
BOUVVIVIEESTER (also BOUWMASTER). Dutch.
In old New York law. A farmer.
BOVARIUS, adj. Lat. Relating to horned cattle.
The Forum Bovarium was the cattle market at
Rome, near the Circus Maximus. It had a large
brazen statue of an ox.
BOVATA TERME. As much land as one ox can
cultivate. Said by some to be thirteen, by others
eighteen, acres in extent. Skene; Spelman; Co.
Litt. 5a. See Carucata.
BOVINE. From the Latin "bos," meaning cow or
bull. "Neat cattle" are animals belonging to the
genus "bos," a term not embracing horses, sheep,
goats, or swine. "Cattle" as generally used in the
Western States means "neat cattle"; it includes
cows, bulls, and steers, but not horses, mares, geldings, colts, mules, jacks, or jennies, goats, hogs,
sheep, shoats, or pigs. State v. District Court of
Fifth Judicial Dist. in and for Nye County, 42
Nev. 218, 174 P. 1023, 1025.
BOW-BEARER. An under-officer of the forest,
whose duty it was to oversee and true inquisition
make, as well of sworn men as unsworn, in every
bailiwick of the forest; and of all manner of
trespasses done, either to vert or venison, and
cause them to be presented, without any concealment, in the next court of attachment, etc. Cromp.
Jur. 201.
BOWIE KNIFE. A long knife shaped like a dagger but having only one edge. Knox v. State,
157 Term. S.W.2d 318, 319. A butcher knife,
Mireles v. State, 80 Tex.Cr.R. 648, 192 S.W. 241,
242; a "dirk," Bivens v. State, 133 Tex.Cr.R. 604,
113 S.W.2d 921.
BOWYERS. Manufacturers of bows and shafts.
An ancient company of the city of London.
BOX. A construction of permanent, fixed dimensions and size. Lyon, Inc., v. Clayton & Lambert
Mfg. Co., D.C.Del., 13 F.Supp. 331, 333.
BOX DOLLY. A vehicle which has but one wheel,
a wide cylindrical drum in the center of it, and is
shaped like a box, the lower part of which extends
down as far as the axis of the drum. The Rosalie
Mahony, D.C.Wash., 218 F. 695, 697.
BOX STEP. A passenger car step. Hill v. Minneapolis, St. Paul, & S. S. M. Ry. Co., 160 Minn. 484,
200 N.W. 485, 486.
233
BOX
BOX STRAPPING. Metal strips intended to reinforce the ends of heavy wooden packing cases to
prevent them from breaking open. Stanley Works
v. Twisted Wire & Steel Co., C.C.A.N.Y., 256 F. 98,
99.
BOXED WEIGHT BASIS. According to weight at
time of packing and after wrapping. Swift & Co.
v. Wallace, C.C.A.7, 105 F.2d 848, 861,
BOXING BOUT. A contest of skill between two
participants. Fischer v. City of Cleveland, 42
Ohio App, 75, 181 N.E. 668, 670.
BOXING OF PINE TREES. As equivalent to
"hanging of cups upon timber." Howard V. State,
17 Ala.App. 9, 81 So. 345, 346.
Intimidation and coercion as essential elements. Smythe
Neon Sign Co. v. Local Union No. 405 of International
Brotherhood of Electrical Workers of Cedar Rapids, 226
Iowa 191, 284 N.W. 126, 130. Labor union members' voluntary determination to refrain from working in erection
of materials not bearing union label. Frank Schmidt
Planing Mill Co. v. Mueller, Mo.App., 154 S.W.2d 610, 614,
615. Labor union's promulgation of rule prohibiting members from handling and erecting work not bearing union
label, Crescent Planing Mill Co. v. Mueller, 234 Mo.App.
1243, 123 S.W.2d 193, 196. The word does not necessarily
import illegality, Smythe Neon Sign Co. v. Local Union
No. 405 of International Brotherhood of Electrical Workers
of Cedar Rapids, 226 Iowa 191, 284 N.W. 126, 130.
BOYD RULE. In a corporate reorganization, no
junior security may be given participation without providing a new consideration therefor, unless
all securities senior to it have received full equivalent of their rights against the estate. Phelan v.
BOZERO. In Spanish law. An advocate; one
who pleads the causes of others, or his own, before
courts of justice, either as plaintiff or defendant.
Called also abogado.
BRABANTER. A mercenary soldier or bandit
who figured in the Anglo-French wars of the 11th
and 13th centuries, and who came from the old
duchy of Brabant, now partly comprised in the
provinces of Brabant in Belgium and of North
Brabant in the Netherlands. Cent. Diet.
BOYCOTT. A conspiracy or confederation to prevent the carrying on of business, or to injure the
business of any one by preventing potential customers from doing business with him or employing the representatives of said business, by threats,
intimidation, coercion, etc. Dick v. Northern Pac.
Ry. Co., 86 Wash. 211, 150 P. 8, 12, Ann.Cas.1917A,
638; Hailey v. Brooks, Tex.Civ.App., 191 S.W. 781,
783.
Secondary Boycott
A combination to exercise coercive pressure on
customers, actual or prospective, to cause them to
withhold or withdraw their patronage. Duplex
Printing Press Co. v. Deering, 254 U.S. 443, 41 S.
Ct. 172, 176, 65 L.Ed. 349, 16 A.L.R. 196. An act
which, when committed in concert, may cause
such injury to the public, or be so useless or unfair that these conditions will be decisive as to
whether such act is permissible or forbidden.
Justin Seubert, Inc., v. Reiff, 98 Misc. 402, 164 N.
Y.S. 522, 526.
BOYLE'S LAW. The principle that as the pressure of gas increases at a fixed temperature, the
volume decreases in inverse proportion, or the
product of the pressure and volume is a constant
quantity. Huntington Development & Gas Co. v.
Topping, 115 W.Va. 364, 176 S.E. 424, 425.
BRABANT. A variety of the old coin known as
a crocard. See Crockards.
BOY. Legitimate child. In re Dragoni, 53 Wyo,
143, 79 P.2d 465, 468. Male child. Hinerman v.
Hinerman, 85 W.Va. 349, 101 S.E. 789, 790.
Primary Boycott
That which occurs when an organized union of
employees, by concerted action, ceases dealing
with a former employer. Pierce v. Stablemen's
Union, Local No. 8760, 156 Cal. 70, 103 P. 325, 327.
Middle States Oil Corp., D.C.N.Y., 124 F.Supp. 728,
781.
BRACERY. The statute of 32 Hen. VIII, c. 9, to
prevent the buying and selling of pretended rights
or titles, is commonly called "the Bill of Bracery
and buying of titles." Cain v. Monroe, 23 Ga.
82, 86, 89, 94; Webb v. Camp, 26 Ga. 354, 357.
See Buying Titles.
BRACHIUM MARIS. An arm of the sea.
BRACINUM. A brewing; the whole quantity of
ale brewed at one time, for which tolsestor was
paid in some manors. Brecina, a brewhouse.
BRAHMIN, BRAHMAN, or BRAMIN. In Hindu
law. A divine; a priest; the first Hindu caste.
BRAIN INJURY. A "concussion" as "brain injury". Le Francois v. Hobart College, Sup., 31
N.Y.S.2d 200, 204.
BRAKE. An effective "brake" consists of the
"brake shoe," and the "brake drum." Davis Sewing Mach. Co. v. New Departure Mfg. Co., C.C.A.
Ohio, 217 F. 775, 780.
BRANCH. An offshoot, lateral extension, or subdivision. Any member or part of a body or system; a department. Northern Indiana Land Co.
v. Carlin, 139 Ind. 324, 127 N.E. 197, 201.
A branch of a family stock is a group of persons related
by descent from a common ancestor, and related to the
main stock by the fact that that common ancestor descends from the original founder or progenitor. Certificate
given by the Trinity House to pilots who have passed an
examination. Houston Pilots v. Goodwin, Tex.Civ.App.,
178 S.W.2d 308, 311. "Group", "wing", "faction", "party"
or "section - and "branch" as synonymous. In re McKean's Estate, 152 Pa, Super. 613, 33 A.2d 51, 52.
BRANCH OF A RIVER. "Branch," as distinguished from a channel of a river, may have two
or more separate channels; "channel" meaning
primarily the bed. United States v. Hutchings,
D.C.Okl., 252 F. 841, 844.
234
BREACH
BRANCA OF THE SEA. This term, as used at
common law, included rivers in which the tide
ebbed and flowed. Arnold v. Mundy, 6 N.J.Law, 86,
10 Am.Dec. 356.
BRANCH PILOT. One possessing a license, commission, or certificate of competency issued by the
proper authority and usually after an examination.
Dean v. Healy, 66 Ga. 503; State v. Follett, 33 La.
Ann. 228. Holder of certificate given by the Trinity House to pilots who have passed an examination. Houston Pilots v. Goodwin, Tex.Civ.App.,
178 S.W.2d 308, 311.
BRANCH RAILROAD. A lateral extension of a
main line; a road connected with or issuing from
a main line. Biles v. Railroad Co., 5 Wash. 509,
32 Pac. 211; Blanton v. Railroad Co., 86 Va. 618,
10 S.E. 925. Feeder lines, Union Pac. R. Co. v.
Anderson, 167 Or. 687, 120 P.2d 578, 588.
BRAND. To stamp; to mark, either with a hot
iron or with a stencil plate. Dibble v. Hathaway,
11 Hun, N.Y., 575. And see Miles v. Vermont
Fruit Co., 98 Vt. 1, 124 A. 559, 563.
BRANDING. An ancient mode of punishment by
inflicting a mark on an offender with a hot iron.
A recognized punishment for some military offenses. Marking of cattle for the purpose of
identification.
BRANDY. Product from distilling wine or the
fermented juice of any fruit. Chicago, B. & Q. R.
Co. v. California Wine Co., 313 Ill.App. 498, 40 N.
E.2d 624, 627.
BRANKS. An instrument formerly used in some
parts of England for the correction of scolds; a
scolding bridle.
BRASIATOR. A maltster, a brewer.
BR ASIUM. Malt.
BRASS KNUCKLES or KNUCKS. A weapon
worn on the hand for the purposes of offense or
defense, so made that in hitting with the fist considerable damage is inflicted. It is called "brass
knuckles" because it was originally made of brass.
The term is now used as the name of the weapon
without reference to the metal of which it is
made; Patterson v. State, 3 Lea, Tenn., 575.
BRAWL. A clamorous or tumultuous quarrel in a
public place, to the disturbance of the public peace.
In English law, specifically, a noisy quarrel or other uproarious conduct creating a disturbance in a church or
churchyard. 4 B.Comm. 146; 4 Steph.Comm. 253.
"Tumults" and "brawls" as substantially identical.
State v. Perkins, 42 N.H. 464.
BREACH OF CLOSE. The unlawful or unwarrantable entry on another person's soil, land, or
close. 3 Bl.Comm. 209.
BREACH OF CONTRACT. Failure, without legal
excuse, to perform any promise which forms the
whole or part of a contract. Friedman v. Katzner,
139 Md. 195, 114 A. 884, 886. Prevention or hindrance by party to contract of any occurrence or
performance requisite under the contract for the
creation or continuance of a right in favor of the
other party or the discharge of a duty by him.
Sharp v. Williams, 141 Fla. 1, 192 So. 476, 480.
Unequivocal, distinct and absolute refusal to perform agreement. R. T. Clark & Co. v. Miller, 154
Miss. 233, 122 So. 475, 481. Violation of obligation.
Russell v. Stephens, 191 Wash. 314, 71 P.2d 30,
31.
Anticipatory Breach
A breach committed before there is a present
duty of performance, and is the outcome of words
evincing intention to refuse performance in the
future. King Features Syndicate v. Valley Broadcasting Co., D.C.Tex., 42 F.Supp. 107, 108.
Acquiescence by other party as necessary, Cerruti v.
Burdick, 130 Conn. 284, 33 A.2d 333, 335. Clear and unequivocal, renunciation of contract and refusal to perform
as essential, Kimel v. Missouri State Life Ins. Co., C.C.A.
Kan., 71 F.2d 921, 923. Party to contract putting it out of
his power to perform as breach, Assembly, Inc., v. Giller,
134 Misc. 657, 236 N.Y.S. 308, 313. Positive statement that
promissor will not or cannot substantially perform contractual duties as breach, Hawkinson v. Johnston, C.C.A.
Mo., 122 F.2d 724, 729, 730.
Bankruptcy as "anticipatory breach", In re Robertson,
D.C.Ark., 41 F.Supp. 665, 668.
Doctrine is that party denying liability destroys contract
so far as able. Pollack v. Pollack, Tex.Com.App., 46 S.W.
2d 292, 293.
Continuing Breach
Such breach occurs where the state of affairs, or
the specific act, constituting the breach, endures
for a considerable period of time, or is repeated at
short intervals.
Constructive Breach
Such breach takes place when the party bound
to perform disables himself from performance by
some act, or declares, before the time comes, that
he will not perform. Jordan v. Madsen, 69 Utah,
112, 252 P. 570, 573; The Adamello, D.C.Va., 19
F.2d 388, 389.
BREACH OF COVENANT. The nonperformance
of any covenant agreed to be performed, or the
doing of any act covenanted not to be done. Holthouse.
BREACH OF DUTY. In a general sense, any violation or omission of a legal or moral duty. More
particularly, the neglect or failure to fulfill in a
just and proper manner the duties of an office or
This name is sometimes given to that part of the declafiduciary employment. Every violation by a trusration which alleges the violation of the defendant's promise or duty, immediately preceding the ad damnum clause.
tee of a duty which equity lays upon him, whether
Expenditure by administrator of proceeds of policy pendwillful and fraudulent, or done through negligence
ing appeal from award of proceeds to administrator as
or arising through mere oversight or forgetful"breach" of obligation of faithful administration. State
ness, is a breach of duty. Hivick v. Hemme, 118
ex rel. and to Use of Gnekow v. United States Fidelity &
Okl. 167, 247 P. 692, 693.
Guaranty Co., 349 Mo. 528, 163 S.W.2d 86, 90.
235
BREACH. The breaking or violating of a law,
right, or duty, either by commission or omission.
BREACH
BREACH OF POUND. The breaking any pound
or place where cattle or, goods distrained are
deposited, in order to take them back. 3 Bl.Comm.
146.
BREACH OF PRISON. The offense of actually
and forcibly breaking a prison or . gaol, with intent to escape. 4 Chit.B1. 130, notes; 4 Steph.
Comm. 255. The escape from custody of a person
lawfully arrested on criminal process.
BREACH OF PRIVILEGE. An act or default in
violation of the privilege of either house of parliament, of congress, or of a state legislature.
BREACH OF PROMISE. Violation of a promise;
'chiefly used as an elliptical expression for "breach
of promise of marriage."
BREACH OF THE PEACE. A violation or disturbance of the public tranquillity and order. The
offense of breaking or disturbing the public peace
by any riotous, forcible, or unlawful proceeding. 4
Bl.Comm. 142, et seq.; People v. Bartz, 53 Mich.
493, 19 N.W. 161. "Breach of the peace" is a
generic term, State v. Reichman, 135 Tenn. 653,
188 S.W. 225, 228, Ann.Cas.1918B, 889, and includes
all violations of public peace or order and acts
tending to a disturbance thereof, City of St. Louis
v. Slupsky, 254 Mo. 309, 162 S.W. 155, 157, 49 L.R.
A.,N.S., 919. One who commits a breach of the
peace is guilty of disorderly conduct, but not all
disorderly conduct is necessarily a "breach of the
peace." Garvin v. City of Waynesboro, 15 Ga.App.
633, 84 S.E. 90, 91; City of Seattle v. Franklin,
191 Wash. 297, 70 P.2d 1049, 1051.
A constructive breach of the peace is an unlawful act
which, though wanting the elements of actual violence or
injury to any person, is yet inconsistent with the peaceable and orderly conduct of society. An apprehended
breach of the peace is caused by the conduct of a man who
threatens another with violence or physical injury, or who
goes about in public with dangerous and unusual weapons
in a threatening or alarming manner, or who publishes an
aggravated libel upon another, etc.
BREACH OF TRUST. Any act done by a trustee
contrary to the terms of his trust, or in excess of
his authority and to the detriment of the trust;
or the wrongful omission by a trustee of any act
required of him by the terms of the trust. Also
the wrongful misappropriation by a trustee of any
fund or property which had been lawfully committed to him in a fiduciary character. Every
violation by a trustee of a duty which equity lays
upon him, whether willful and fraudulent, or done
through negligence, or arising through mere oversight and forgetfulness, is a "breach of trust."
The term, therefore, includes every omission and
commission in carrying out the trust according
to its terms, of care and diligence in protecting
and investing the trust property, and of using
perfect good faith. H. B. Cartwright & Bro. v.
United States Bank & Trust Co., 23 N.M. 82, 167
P. 436, 453. A violation by the trustee of any
duty which he owes to the beneficiary. Bruun v.
Hanson, C.C.A.Idaho, 103 F.2d 685, 699.
BREACH OF TRUST WITH FRAUDULENT INTENT. Larceny after trust. State v. Owings, 205
S.C. 314, 31 S.E.2d 906, 907.
BREACH OF WARRANTY. In real property law
and the law of insurance. The failure or falsehood of an affirmative promise or statement, or the
nonperformance of an executory stipulation. Stewart v. Drake, 9 N.J.Law, 139. Failure of insured
to disclose trivial and temporary disorders. Franklin Life Ins. Co. v. Critz, C.C.A.Miss., 109 F.2d
417. As used in the law of sales, "breach of warranty," unlike fraud, does not involve guilty
knowledge, Anglo-California Trust Co. v. Hall, 211
P. 991, 993, 61 Utah, 223, and rests on contract,
Oelwein Chemical Co. v. Baker, 204 Iowa, 66, 214
N.W. 595, 596. Falsity of statements incorporated
into fidelity bond. City Bank & Trust Co. v. Commercial Casualty Co., La.App., 176 So. 27, 30.
BREAD ACTS. Laws providing for the sustenance of persons kept in prison for debt.
BREAK. "Break" may be used in a broad sense,
as in seller's covenant in contract of sale of auto,
to indicate a weakness, impairment, or destruction
of parts, however caused. American Locomotive
Co. v. National Wholesale Grocery Co., 226 Mass.
314, 115 N.E. 404, 405, L.R.A.1917D, 1125.
BREAK A LEG. Pertaining to a broken bone
anywhere between ankle and hip, with possible
exception of patella, 100% American Local Mut.
Life & Accident Ass'n of El Paso v. Work, Tex.
Civ.App., 289 S.W. 1020.
BREAK AND TAKE. Sale of merchandise or
amusement where customer pays for a chattel
and a chance for another unpaid for chattel, the
ticket being the opportunity for fortuitous selection of a differentiated article. Minter v. Federal
Trade Commission, C.C.A.3, 102 F.2d 69, 73.
BREAKAGE. Odd cents retained by race track
promoter out of amounts due on wagers. Wise v.
Delaware Steeplechase & Race Ass'n, Del.Super.,
2 Terry 182, 18 A.2d 419, 421, 423.
BREAKDOWN SERVICE. As applied to an electric public service corporation is primarily a service for emergency and is used in case the electric
plant of the customer breaks down; it is also used
when very little electricity is required, as upon
holidays and Sundays, and also at the peak of the
service when a maximum current is required during the day. People ex rel. New York Edison Co.
v. Public Service Commission for First Dist., 191
App.Div. 237, 181 N.Y.S. 259, 261.
BREAKING. Forcibly separating, parting, disintegrating, or piercing any solid substance.
In the law as to housebreaking and burglary, it means
the tearing away or removal of any part of a house or of
the locks, latches, or other fastenings intended to secure it,
or otherwise exerting force to gain an entrance, with the
intent to commit a felony; or violently or forcibly breaking out of a house, after having unlawfully entered it, in
the attempt to escape. Sims v. State, 136 Ind. 358, 36 N.E.
278; Melton v. State, 24 Tex.App. 287, 6 S.W. 303. Actual
"breaking" involves application of some force. Rains v.
Commonwealth, 293 Ky. 429, 169 S.W.2d 41, 44, the action
of accused must have been such as would, • without additional effort, have made an entry possible. Armour v. State,
72 Okl.Cr. 44, 112 P.2d 1116, 1119, but there is no requirement that there be shown violence, a latch lifted, or a
236
BREVE
bolt drawn. People v. Viola, 264 App.Div. 38, 34 N.Y.S.2d
1018, 1020. The term in indictment, information or instruction implies force. State v. Stuart, 316 Mo. 150, 289
S. W. 822, 824; Humphrey v. State, 110 Tex.Cr.R. 62, 7 S.
W.2d 576, 577; McFarland v. Commonwealth, 227 Ky. 411,
13 S.W.2d 277, 278. The slightest force is sufficient, as the
lifting or opening of a latch, Dennis v. State, 71 Tex.Cr.
R. 162, 158 S.W. 1008, 1010; State v. Gendusa, 193 La. 59,
190 So. 332, 339; or the raising of a window, Hollis v.
State, 69 Tex.Cr.R. 286, 153 S.W. 853, 854; State v. Chappell, 185 S.C. 111, 193 S.E. 924, 925; or the opening of a
door, State v. Lapoint, 87 Vt. 115, 88 A. 523, 47 L.R.A.,N.S.,
717; Gibson v. Commonwealth, 204 Ky. 704, 265 S.W. 339,
345; Yeargin v. State, 54 Okl.Cr. 34, 14 P.2d 431, 432;
Kidd v. Commonwealth, 273 Ky. 300, 116 S.W.2d 636, 638;
or the opening of unfastened transom. State v. Chappell,
185 S.C. 111, 193 S.E. 924; or entry with a key or by
manipulating hasp from outside, McGilveray v. State. 111
Tex.Cr.R. 256, 12 S.W.2d 585; or turning of knob of door,
State v. Edell, 7 W.W.Harr. Del., 404, 183 A. 630. But entry by open door, window, or other opening does not constitute "breaking", George v. State, 183 Miss. 327, 184 So.
67, 68. Breaking lock securing pump handle on gasoline
tank releasing handle is sufficient "breaking". Chaney v.
State, 25 Ala.App. 141, 142 So. 103.
As an element of the crime of burglary breaking may be
either actual or constructive. Davis v. Commonwealth,
132 Va. 521, 110 S.E. 356. Entering a building by a chimney is a constructive breaking. State v. Hart, 94 S.C. 214,
77 S.E. 862.
BREAKING A CASE. The expression by the
judges of a court, to one another, of their views
of a case, in order to ascertain how far they are
agreed, and as preliminary to the formal delivery
of their opinions. "We are breaking the case,
that we may show what is in doubt with any of
us." Holt, C. J., addressing Dolbin, J., 1 Show.
423.
BREAKING A CLOSE. An unlawful entry upon
land. Littleton v. Roberts, 181 S.C. 303, 187 S.E.
349, 350.
Wrongdoer need only set in motion some dangerous
agency which in itself, though quite distant from wrongdoer, inflicts wrong. Western Union Telegraph Co. v.
Bush, 191 Ark. 1085, 89 S.W.2d 723, 725, 103 A.L.R. 367.
BREAKING BULK. The offense committed by a
bailee (particularly a carrier) in opening or unpacking the chest, parcel, or case containing goods
intrusted to his care, and removing the goods and
converting them to his own use.
BREAKING DOORS. Forcibly removing the
fastenings of a house, so that a person may enter.
BREAKING INTO. Breaking with burglarious intent. State v, Heflin, 338 Mo. 236, 89 S.W.2d
938, 946, 103 A.L.R. 1301.
BREAKING JAIL. The act of a prisoner in effecting his escape from a place of lawful confinement.
BREAKING OF ARRESTMENT. In Scotch law.
The contempt of the law committed by an arrestee
who disregards the arrestment used in his hands,
and pays the sum or delivers the goods arrested to
the debtor. The breaker is liable to the arrester
in damages. See Arrestment.
BREAST OF THE COURT. A metaphorical expression signifying the conscience, discretion, or
recollection of the judge.
remembrance." Co.Litt. 260a; 3 BI.Comm. 407. When we
say that the record is in the "breast of the court" to be
changed during the term, we only mean that the proceedings attested by it have not yet obtained that irrevocable
character which places them beyond the power of the
court after the term. Willson v. Ice, 78 W.Va. 672, 90 S.E.
272, 275.
BREATH. In medical jurisprudence. The air expelled from the lungs at each expiration.
BREATHING. Expansion and contraction, under
the influence of changing temperatures, of materials used in cables for transmission of hightension electric currents. Electric Cable Joint
Co. v. Brooklyn Edison Co., N.Y., 292 U.S. 69, 54
S.Ct. 586, 587, 78 L.Ed. 1131.
BREDWITE. In Saxon and old English law. A
fine, penalty, or amercement imposed for defaults
in the assise of bread. Cowell.
BREED. Produce (offspring) by hatching or
gestation; to hatch. Miller Hatcheries v. Boyer,
C.C.A.Iowa, 131 F.2d 283, 287.
BREHON. In old Irish law. A judge. 1 Bl.
Comm. 100. Brehons, (breitheamhuin,) judges.
BREHON LAW. The name given to the ancient
system of law of Ireland as it existed at the time
of its conquest by Henry II.
BRENAGIUM. A payment in bran, which tenants
anciently made to feed their lords' hounds.
BREPHOTROPHI. In the civil law. Persons appointed to take care of houses destined to receive
foundlings.
BRETHREN. This word, in a will, may include
sisters, as well as brothers, of the person indicated; it is not necessarily limited to the masculine gender. Terry v. Brunson, 1 Rich.Eq., S.C.,
78.
BRETHREN OF TRINITY HOUSE. See Elder
Brethren.
BRETTS AND SCOTTS, LAWS OF THE. A code
or system of laws in use among the Celtic tribes
of Scotland down to the beginning of the fourteenth century, and then abolished by Edward I.
of England.
BRETTWALDA. In Saxon law. The ruler of the
Saxon heptarchy.
BREVE. L. Lat. A writ. An original writ.
A writ or precept of the king issuing out of his courts.
A writ by which a person is summoned or attached to answer an action, complaint, etc., or whereby anything is
commanded to be done in the courts, in order to justice,
etc. Skene.
BREVE DE RECTO. A writ of right, or license
for a person ejected out of an estate, to sue for
the possession of it.
BREVE INNOMINATUM. A writ making only
a general complaint, without the details or particulars of the cause of action.
237
During the term of a court, the record is said to remain "in the breast of the judges of the court and in their
BREVE
BREVE ITA DICITUR, QUIA REM DE QUA
AGITUR, ET INTENTIONEM PETENTIS, PAUCIS VERBIS BREVITER ENARRAT. A writ is
so called because it briefly states, in few words,
the matter in dispute, and the object of the party
seeking relief. 2 Inst. 39.
BREVE JUDICIALE DEBET SEQUI SUUM
ORIGINALE, ET ACCESSORIUM SUUM PRINCIPALE. Jenk.Cent. 292. A judicial writ ought
to follow its original, and an accessory its principal.
BREVE JUDICIALE NON CADIT PRO DEFECTU FORME. Jenk.Cent. 43. A judicial writ
fails not through defect of form.
BREVE NOMINATUM. A named writ. A writ
stating the circumstances or details of the cause, of
action, with the time, place, and demand, very
particularly.
BREVE ORIGINALE. An original writ; a writ
which gave origin and commencement to a suit.
BREVE PERQUIRERE. To purchase a writ or
license of trial in the king's courts by the plaintiff.
BREVE TESTATUM. A written memorandum
introduced to perpetuate the tenor of the conveyance and investiture of lands. 2 Bl.Comm. 307.
In Scotch law. A similar memorandum made out
at the time of the transfer, attested by the pares
curice and by the seal of the superior. Bell.
BREVET.
In military law. A commission by which an
officer is promoted to the next higher rank, but
without conferring a right to a corresponding increase of pay.
In French law. A privilege or warrant granted
by the government to a private person, authorizing him to take a special benefit or exercise an
exclusive privilege. Thus a brevet d'invention is
a patent for an invention.
BREVIA. Lat. The plural of breve.
BREVIA ADVERSARIA. Adversary writs; writs
brought by an adversary to recover land. 6 Coke,
67.
BREVIA AMICABILIA. Amicable or friendly
writs; writs brought by agreement or consent of
the parties.
BREVIA ANTICIPANTIA. At common law. Anticipating or preventive writs. Six were included
in this category, viz.: Writ of mesne; warrantia
chartce; monstraverunt; audita querela; curia
claudenda; and ne injuste vexes. Peters v. Linen-
schmidt, 58 Mo. 466.
BREVIA DE CURSU. Writs of course. Formal
writs issuing as of course.
BREVIA FORMATA. Certain writs of approved
and established form which were granted of
course in actions to which they were applicable,
and which could not be changed but by consent of
the great council of the realm. Bract. fol. 413b.
BREVIA JUDICIALIA. Judicial writs. Auxiliary
writs issued from the court during the progress
of an action, or in aid of the judgment.
BREVIA MAGISTRALIA. Writs occasionally issued by the masters or clerks of chancery, the
form of which was varied to suit the circumstances of each case. Bract. fol. 413b.
BREVIA SELECTA. Choice or selected writs or
processes. Often abbreviated to Brev. Sel.
BREVIA, TAM ORIGINALIA QUAM JUDICIALIA, PATIUNTUR ANGLICA NOMINA. 10
Coke, 132. Writs, as well original as judicial, bear
English names.
BREVIA TESTATA. The name of the short memoranda early used to show grants of lands out of
which the deeds now in use have grown. Jacob.
BREVIARIUM ALARICIANUM. A compilation
of Roman law made by order of Alaric II., king of
the Visigoths, in Spain, and published for the use
of his Roman subjects in the year 506. It is also
known as Lex Romana Visigothorum. It became
the principal, if not the only, representative of
Roman law among the Franks.
BREVIARIUM ANIANI. Another name for the
Brevarium Alaricianum, (q. v.) Anian was the
referendery or chancellor of Alaric, and was commanded by the latter to authenticate, by his signature, the copies of the breviary sent to the
comites. Mackeld. Rom. Law, § 68.
BREVIATE. A brief; brief statement, epitome,
or abstract. A short statement of contents, accompanying a bill in parliament. Holthouse. The
name is usually applied to the famous brief of
Mr. Murray (afterwards Lord Mansfield) for the
complainant in the case of Penn v. Lord Baltimore,
1 Ves. 444.
BREVIBUS ET ROTULIS LIBERANDIS. A writ
or mandate to a sheriff to deliver to his successor
the county, and appurtenances, with the rolls,
briefs, remembrance, and all other things belonging to his office. Reg.Orig. 295.
BREWER. One who manufactures fermented liquors, for sale, from malt, wholly or in part, or
from any substitute therefor. U. S. v. Wittig, 28
Fed.Cas. 745.
BRIBE. Anything of value; any gift, advantage
or emolument; any price, reward or favor. State
v. Douglas, 70 S.D. 203, 16 N.W.2d 489, 496. Any
money, goods, right in action, property, thing of
value, or any preferment, advantage, privilege or
emolument, or any promise or undertaking to give
any, asked, given, or accepted, with a corrupt intent to induce or influence action, vote, or opinion
of person in any public or official capacity. People
v. Van de Carr, 87 App.Div. 386, 84 N.Y.S. 461;
People v. Ward, 110 Cal. 369, 42 P. 894; Williams
v. State, 188 Ind. 283, 123 N.E. 209, 213. It is a
238
BRIDLE
gift, not necessarily of pecuniary value, bestowed
to influence the conduct of the receiver, and must
be of substantial value to him. People v. Hyde,
156 App.Div. 618, 141 N.Y.S. 1089, 1093.
Payment of corporate funds by director and executive
officer of the corporation to officials of labor union to prevent ruinous strikes which union officials were under no
legal duty to call as "bribe". Hornstein v. Paramount
Pictures, Sup., 37 N.Y.S.2d 404, 412.
BRIBERY. The offering, giving, receiving, or
soliciting of any thing of value to influence action
as official or in discharge of legal or public duty.
Allen v. State, 63 Okl.Cr. 16, 72 P.2d 516, 519. The
corrupt tendering or receiving of a price for
official action. State v. London, 194 Wash. 458,
78 P.2d 548, 554, 115 A.L.R. 1255. The receiving or
offering any undue reward by or to any person
concerned in the administration of public justice
or a public officer to influence his behavior in
office. Walsh v. People, 65 Ill. 65, 16 Am.Rep. 569;
State v. Harrah, 101 W.Va. 300, 132 S.E. 654, 655,
4 Bl.Comm. 139, and note. The taking or giving a
reward for public office. Brown.
Acceptance by public officer of compensation for doing
legal duty, Ex parte Montgomery, 244 Ala. 91, 12 So.2d 314,
317; agreement by public official to refrain from performing official act or to corruptly perform act contrary to rules
of honesty essential, Selvidge v. State, 126 Tex.Cr.R. 489, 72
S. W.2d 1079, 1080; Attempt to bribe officer engaged in
making an unlawful arrest, Sugarman v. State, 173 Md. 52,
195 A. 324, 326; Attempted bribery as included in term,
Coleman v. State ex rel. Mitchell, 132 Fla. 845, 182 So. 627,
628; Coleman v. State ex rel. Mitchell, 132 Fla. 845, 182
So. 627, 628; "extortion" and "bribery" mutually exclusive,
People v. Feld, 262 App.Div. 909, 28 N.Y.S.2d 796, 797;
involuntary payments insufficient, Hornstein v. Paramount
Pictures, Sup., 37 N.Y.S.2d 404, 413; unlawful concert of
one or more persons acting with one or more other persons essential, People v. Keyes, Cal.Sup., 284 P. 1105; voluntary giving of something of value to influence performance of official duty as essence, Hornstein v. Paramount
Pictures, Sup., 37 N.Y.S.2d 404, 413.
At common law, the gist of the offense was the tendency
to prevert justice, People v. Peters, 265 Ill. 122, 106 N.E.
513, 515, Ann.Cas.1916A, 813; the offering, giving, receiving
or soliciting of anything of value to influence action as a
public official, Coleman v. State ex rel. Mitchell, Fla., 182
So. 627, 628; corrupt agreement induced by offer of reward, Osborn v. State, 160 Tenn. 594, 28 S.W.2d 47, 48;
The term now extends_to many classes of officers and is not
confined to judicial officers; it applies both to the actor
and receiver, and extends to voters, cabinet ministers, legislators, sheriffs, and other classes. 2 Whart.Crim. Law, §
1858. In re Crum, 55 N.D. 876, 215 N.W. 682, 688, 55 A.L.
R. 220; State v. McGraw, 142 La. 417, 76 So. 822. All persons whose official conduct is connected with the administration of the government are subjects, Commonwealth v.
Benedict, 114 Pa.Super. 183, 173 A. 850, 851; persons acting
under color of title to office, though not an officer de jure,
are subjects, Ex parte Covell, 63 Okl. 256, 74 P.2d 626, 631;
but it has also been held that the person charged to have
been bribed must be an officer, de facto or de jure, or
among the governmental administrative personnel. State
v. London, 194 Wash. 458, 78 P.2d 548, 115 A.L.R. 1255.
BRIBERY AT ELECTIONS. The offense committed by one who gives or promises or offers
money or any valuable inducement to an elector,
in order to corruptly induce the latter to vote in a
particular way or to abstain from voting, or as a
reward 'to the voter for having voted in a particular
way or abstained from voting.
BRIBOUR. One that pilfers other men's goods;
a thief.
BRICOLIS. An engine by which walls were
beaten down. Blount.
BRIDEWELL. In England. A house of correction.
BRIDGE. A structure erected over a river, creek,
stream, ditch, ravine, obstruction in highway or
other place to facilitate the passage and for benefit of travelers.
The term includes both arches and abutments; Bardwell
v. Town of Jamaica, 15 Vt. 438; Andrew B. Hendryx Co.
v. City of New Haven, 104 Conn. 632. 134 A. 77, 79; as
well as approaches; 71 L.T. 430; McGee v. Jones County,
161 Iowa, 296, 142 N.W. 957, 959, 48 L.R.A.,N.S., 141; In re
Park Lane South in City of New York, 206 App.Div. 269,
200 N.Y.S. 555, 557; contra, under a statute, City of Stamford v. Town of Stamford, 100 Conn. 434, 124 A. 26, 27.
The term likewise includes fills or embankments, Havird v.
Richmond County, 47 Ga.App. 580, 171 S.E. 220; Morgan
County v. Glass, 139 Ga. 415, 77 S.E. 583; appurtenances
necessary to its proper use, Lumley v. Pollard. 61 Ga.App.
681, 7 S.E.2d 308, 313; culverts; Central Bridge & Const.
Co. v. Saunders County, 106 Neb. 484, 184 N.W. 220, 223;
contra, Village of Marissa v. Jones, 327 Ill. 180, 158 N.E.
389, 394; viaducts; In re City of Boston, 221 Mass. 468,
109 N.E. 389, 392; but not a railway viaduct, designed only
for the passage of engines and cars; Bridge Proprietors v.
Land & Improvement Co., 1 Wall. 116, 17 L.Ed. 571; nor
does the term include a drain under a bridge; Ellis v.
Floyd County, 24 Ga.App. 717, 102 S.E. 181; nor a franchise or contract to build a bridge; New Orleans Pontchartrain Bridge Co. v. Louisiana Public Service Commission,
162 La. 874, 111 So. 265, 266 ; nor piping and water boxes
and culverts for drainage purposes across public roads,
Montgomery County v. Seaboard Air Line Ry. Co., 41 Ga.
App. 130, 152 S.E. 261, 262; nor flood walls, Jefferson
County Fiscal Court v. Jefferson County ex rel. Grauman,
278 Ky. 68, 128 S.W.2d 230, 232, 233; nor an elevated roadway or causeway of reinforced concrete, resting upon
concrete piers or columns. Rumsey v. Department of Labor and Industries, 192 Wash. 538, 74 P.2d 214, 216.
"Bridges" and "culverts" are not synonymous. Protest
of Evans, 153 Okl. 191, 4 P.2d 1030, 1031.
Bridges are either public or private. Public bridges are
such as form a part of the highway, common, according
to their character as foot, horse, or carriage bridges, to
the public generally, with or without toll. State v. Street,
117 Ala. 203, 23 So. 807; Bonneville County v. Bingham
County, 24 Idaho, 1, 132 P. 431, 433; they are bridges
across a creek, river, or other natural body of water, etc.,
erected for the accommodation of the public, In re Walnut
St. Bridge in City of Des Moines, 220 Iowa 55, 261 N.W.
781, 782. A private bridge is one which is not open to
the use of the public generally, and does riot form part of
the highway. Rex v. Bucks County, 12 East, 192. Such
a bridge will not be considered a public bridge although it
may be occasionally used by the public. Thompson v. R.
Co., 3 Sandf.Ch., N.Y., 625; 1 Rolle, Abr. 368, Bridges, p1.
2; 2 Inst. 701; 1 Salk. 359.
BRIDGE OVER A PUBLIC WAY. A bridge upon
which railroad runs above highway. Boston & M.
R. R. v. Worcester County Com'rs, 300 Mass. 415,
15 N.E.2d 455, 457.
BRIDGE UNDER A PUBLIC WAY. A bridge for
travelers to use as part of a highway crossing
railroad over level thereof. Boston & M. R. R. v.
Worcester County Com'rs, 300 Mass. 415, 15 N.E.
2d 455.
BRIDGE-MASTERS. Persons chosen by the citizens, to have the care and supervision of bridges,
and having certain fees and profits belonging to
their office, as in the case of London Bridge.
BRIDLE ROAD. In the location of a private way
laid out by the selectmen, and accepted by the
239
BRIEF
town, a description of it as a "bridle road" does
not confine the right of way to a particular class
of animals or special mode of use. Flagg v.
Flagg, 16 Gray, Mass., 175.
BRIEFLY. Concisely; in a few words; pertaining to a short or abridged statement. Boynton
Real Estate Co. v. Woodbridge Tp., 94 N.J.Law,
226, 109 A. 514, 515.
BRIEF. A written document; a letter; a writing
in the form of a letter. A summary, abstract, or
epitome. A condensed statement or epitome of
some larger document, or of a series of papers,
facts and circumstances, or propositions.
BRIEVE. In Scotch law. A writ. 1 Kames, Eq.
146.
In American practice. A written or printed document,
prepared by counsel to serve as the basis for an argument
upon a cause in an appellate court, and usually filed for
the information of the court. It embodies the points of
law which the counsel desires to establish, together with
the arguments and authorities upon which he rests his
contention. A brief, within a rule of court requiring counsel to furnish briefs, before argument, implies some kind of
statement of the case for the information of the court.
Gardner v. Stover, 43 Ind. 356. A "brief" is the vehicle of
counsel to convey to the appellate court the essential facts
of his client's case, a statement of the questions of law involved, the law he would have applied, and the application
he desires made of it by the court. Bell v. Germain, 12
Cal.App. 375, 107 P. 630. The brief of evidence in connection with an auditor's report is considered a "brief" though
it may embody the stenographic report of the testimony in
full. McKenzie v. Perdue, 67 Ga.App. 202, 19 S.E.2d 765,
774.
In Ecclesiastical law. A papal rescript sealed with wax.
See Bull.
In English practice. A document prepared by the attorney, and given to the barrister, before the trial of a cause,
for the instruction and guidance of the latter. It contains,
in general, all the information necessary to enable the barrister to successfully conduct their client's case in court,
such as a statement of the facts, a summary of the pleadings, the names of the witnesses, and an outline of the
evidence expected from them, and any suggestions arising
out of the peculiarities of the case.
In Scotch law. Brief is used in the sense of "writ," and
this seems to be the sense in which the word is used in
very many of the ancient writers.
BRIGANDINE. A coat of mail or ancient armour,
consisting of numerous jointed scale-like plates,
very pliant and easy for the body, mentioned in 4
& 5 P. & M. c. 2.
Brief a l'evesque
A writ to the bishop which, in quare impedit,
shall go to remove an incumbent, unless he recover or be presented pendente lite. 1 Keb. 386.
Brief of Title
A methodical epitome of all the patents, conveyances, incumbrances, liens, court proceedings,
and other matters affecting the title to real estate.
Brief Out of the Chancery
In Scotch law. A writ issued in the name of the
sovereign in the election of tutors to minors, the
cognoscing of lunatics or of idiots, and the ascertaining the widow's terce; and sometimes in dividing the property belonging to heirs-portioners. In
these cases only brieves are now in use. Bell.
Brief Papal
In ecclesiastical law. The pope's letter upon
matters of discipline.
Printed Brief
Typewritten brief is a written and not a "printed
brief." Waterman Lumber & Supply Co. v.
Holmes, Tex.Civ.App., 161 S.W. 70.
BRIGA. In old European law. Strife, contention,
litigation, controversy.
BRIGBOTE, In Saxon and old English law. A
tribute or contribution towards the repairing of
bridges. See Bote.
BRINE. A solution 4 per cent. salt is brine, within the meaning of the provision of paragraph 488,
Free List, Tariff Act of 1913, for "fruits in brine."
Amerman & Patterson v. U. S., 12 Ct.Cust.App.
117, 118.
BRING. To convey to the place where the speaker is or is to be, to bear from a more distant to a
nearer place, to make to come, procure, produce,
draw to, to convey, carry or conduct, move. Frederick v. Great Northern Ry. Co., 207 Wis. 234, 240
N.W. 387, 390. The doing of something effectual;
the bringing of someone to account, or the accomplishment of some definite purpose. Landrum v.
Fulton, 47 Ohio App. 376, 191 N.E. 917, 918.
BRING ABOUT. To procure, implies completion.
Jackson v. Thompson, Tex.Civ.App., 74 S.W.2d
1055, 1057.
BRING INTO. To import, U. ,S. v. Gully, D.C.N.
Y., 9 F.2d 959; to introduce, Sturgeon v. State,
17 Ariz. 513, 154 P. 1050, 1055, L.R.A.1917B, 1230.
BRING SUIT. To "bring" an action or suit has a
settled customary meaning at law, and refers to
the initiation of legal proceedings in a suit. Lake
& Co. v. King County, 4 Wash.2d 651, 104 P.2d
599, 601. A suit is "brought" at the time it is
commenced. Hames v. Judd, Com.Pl., 9 N.Y.Supp.
743, 30 St.R. 666, 16 Daly 110; Goldenberg v.
Murphy, 108 U.S. 162, 2 Sup.Ct. 388, 27 L.Ed. 686;
Buecker v. Carr, 60 N.J.Eq. 300, 47 Atl. 34.
"Brought" and "commenced" in statutes of limitations are commonly deemed to have been used
interchangeably. Hannaman v. Gordon, Tex.Com.
App., 261 S.W. 1006, 1008. Under such statutes,
the suit may be "brought," when the summons
subsequently served is issued. Mill Creek & Minehill Na y . & R. Co. v. United States, D.C.Pa., 246
F. 1013, 1016. Under a statute providing that
no action shall be "brought or maintained",
"brought" applies to actions not yet instituted.
Bruenn v. North Yakima School Dist. No. 7,
Yakima County, 101 Wash. 374, 172 P. 569, 571.
"Institute and prosecute" and "bring suit" as
synonymous. Traders & General Ins. Co. v. Spillers, Tex.Civ.App., 88 S.W.2d 738, 740.
240
BROKER
BRING UP. Nurse, rear, and educate child until
full age. In re Bamber's Estate, 147 Misc. 712,
265 N.Y.S. 798.
BRINGING ACTION TO TRIAL. Motion to reset case for trial as "bringing action to trial".
Craghill v. Ford, 127 Cal.App. 661, 16 P.2d 343,
346.
BRINGING ERROR. Writ of error is considered
as brought at time it is filed in court which renders judgment. Girard Fire & Marine Ins. Co. v.
Commonwealth Building & Loan Ass'n, C.C.A.
Tex., 32 F.2d 736.
BRINGING MONEY INTO COURT. The act of
depositing money in the custody of a court or of
its clerk or marshal, for the purpose of satisfying
a debt or duty, or to await the result of an interpleader. Dirks v. Juel, 59 Neb. 353, 80 N.W. 1045.
BRIS. In French maritime law. Literally, breaking; wreck. Distinguished from naufrage, (q. v.).
BRISTOL BARGAIN. In English law. A contract by which A. lends B. £1,000 on good security,
and it is agreed that £500, together with interest,
shall be paid at a time stated; and, as to the other £500, that B., in consideration thereof, shall pay
to A. £100 per annum for seven years. Wharton.
BRITISH COLUMBIA. The territory on the
north-west coast of North America, once known
by the designation of "New Caledonia." Its government is provided for by 21 & 22 Vict. c. 99.
Vancouver Island is united to it by the 29 & 30
Vict. c. 67. See 33 & 34 Vict. c. 66.
BRITISH SUBJECT. Any person owing permanent allegiance to crown. U. S. ex rel. Graber v.
Karnuth, C.C.A.N.Y., 30 F.2d 242, 243.
BRITISH THERMAL UNIT. The amount of heat
required to raise a pound of water one degree
Fahrenheit. Shawnee Gas & Electric Co. v. Corporation Commission of Oklahoma, 111 Okl. 13,
237 P. 844.
BROAD INTERPRETATION. That interpretation
of Constitution or statute which, brushing aside
minor objections and trivial technicalities, effectuates intent of act. In re Senate Resolution
No. 2 Concerning Constitutionality of House Bill
No. 6, 94 Colo. 101, 31 P.2d 325, 332.
BROCAGE. The wages, commission, or pay of a
broker (also called "brokerage"). Also the avocation or business of a broker.
BROCARD. In old English law. A legal maxim.
"Brocardica Juris," the title of a small book of
legal maxims, published at Paris, 1508.
BROCARIUS, BROCATOR. In old English and
Scotch law. A broker; a middleman between buyer and seller; the agent of both transacting parties. Bell; Cowell.
BROKEN STOWAGE. In maritime law. That
space in a ship which is not filled by her cargo.
BROKER. An agent employed to make bargains
and contracts for a compensation. Story, Ag.
28; Payne v. Ponder, 139 Ga. 283, 77 S.E. 32, 34.
A dealer in securities issued by others. White v.
Financial Guarantee Corporation, 13 Cal.App.2d
93, 56 P.2d 550, 553. A middleman or negotiator
between parties. San Jacinto Life Ins. Co. v.
Brooks, Tex.Civ.App., 274 S.W. 648, 650; Messick
v. Johnson, 155 Okl. 139, 8 P.2d 28, 30; Gile v.
Tsutakawa, 109 Wash. 366, 187 P. 323, 326; Civil
Code La. art. 3016. A person dealing with another for sale of property. Davis v. Chipman,
210 Cal. 609, 293 P. 40, 44. A person whose business it is to bring buyer and seller together.
Keys v. Johnson, 68 Pa. 42. The term extends to
almost every branch of business, to realty as well
as personalty. Richmond Mortgage & Loan Corporation v. Rose, 142 Va. 342, 128 S.E. 604, 605.
A voyage is called a "broker" where no fish are
caught on a fishing voyage or from some other
reason there are no proceeds from a fish auction.
The Dirigo First, D.C.Mass., 60 F.Supp. 675.
For distinction between "commission merchant"
and "broker," see Commission Merchant. For
"Factor" and "broker" as synonymous or distinguishable, see Factor.
Ordinarily, the term is applied to one acting for others
but is applicable to one in business of negotiating purchases or sales for himself. McCornick & Co., Bankers, v.
Tolmie Bros., 42 Idaho 1, 243 P. 355, 358; Johnson v.
Winslow, 155 Misc. 170, 279 N.Y.S. 147.
A "broker" is an agent with special and limited authority. Stephenson v. Golden, 279 Mich. 710, 276 N.W. 849,
858; Portsmouth Cotton Oil Refining Corp. v. Madrid Cotton Oil Co., 200 Ala. 634, 77 So. 8, 9. A middleman, as distinguished from a broker, is employed merely to bring the
parties together when each desires to exchange his property for that of the other, or where one desires to sell and
the other to purchase and his services are not rendered as
the agent of either party; but a "broker" is the agent of
a party, employed to procure a customer or to effect the
sale or exchange. Tracey v. Blake, 229 Mass. 57, 118 N.E.
271, 272.
Brokers are of many kinds, the most important
being enumerated and defined as follows:
Exchange Broker
See Exchange Broker.
Merchandise Brokers
Buyers and sellers of goods and negotiators between buyer and seller, but without having the
custody of the property.
Money-Broker
A money-changer; a scrivener or jobber; one
who lends or raises money to or for others.
Note Brokers
Negotiators of the discount or sale of commercial paper.
241
BROCELLA. In old English law. A wood, a
thicket or covert of bushes and brushwood. Cowell; Blount.
Black's Law Dictionary Revised 4th Ed.-16
BROKEN. Impoverishment. Walsh v. Kennedy,
115 Mont. 551, 147 P.2d 425, 430.
BROKER
Pawnbrokers
Lenders of money on goods deposited with them
in pledge, taking high rates of interest.
Real Estate Brokers
Persons who procure the purchase or sale of
land, acting as intermediary between vendor and
purchaser, and who negotiate loans on real-estate
security, manage and lease estates, etc. Latta v.
Kilbourn, 150 U.S. 524, 14 S.Ct. 201, 37 L.Ed. 169;
Abraham v. Wasaff, 111 Okl. 138, 239 P. 138, 140.
A broker employed in negotiating the sale, purchase, or exchange of lands on a commission contingent on success. Oregon Home Builders v.
Montgomery Inv. Co., 94 Or. 349, 184 P. 487, 491.
A person engaged in business to such an extent
that it is his vocation or partial vocation. Morris
v. O'Neill, 239 Mich. 663, 215 N.W. 8, 9; Kolb v.
Burkhardt, 148 Md. 539, 129 A. 670, 672.
Ship-Brokers
Who transact business between the owners of
ships and freighters or charterers, and negotiate
the sale of vessels.
Stock. Brokers
Brokers employed to buy and sell for their principals stocks, bonds, government securities, etc.
The term "broker" applies as well to a broker on
the Board of Trade as to one on the Stock Exchange. Cutler v. Pardridge, 182 Ill.App. 350, 358.
BROKERAGE. The wages or commissions of a
broker; also, his business or occupation.
BROKERAGE CONTRACT. A contract of agency, whereby broker is employed to make contracts
of kind agreed upon in name and on behalf of his
principal, and for which he is paid an agreed
commission. Nolen's Adm'r v. Robinson, 213 Ky.
752, 281 S.W. 1034, 1036; Hardesty v. Martin
Ebersbach Co., C.C.A.Ohio, 294 F. 5, 6. A unilateral contract wherein the principal makes an
offer which is interpreted as promise to pay broker a commission in consideration of his producing a buyer ready, able, and willing to buy the
property on the principal's terms. In re Cowan's
Estate, Sur., 13 N,Y.S.2d 374, 376.
BROSSUS. Bruised, or injured with blows,
wounds, or other casualty. Cowell.
BROTHEL. A bawdy-house; a house of ill fame;
a common habitation of prostitutes. United
States v. Casey, D.C.Ohio, 247 F. 362, 364.
BROTHER. One person is a brother "of the whole
blood" to another, the former being a male, when
both are born from the same father and mother.
He is a brother "of the half blood" to that other
(or half-brother) when the two are born to the
same father by different mothers or by the same
mother to different fathers.
The term may embrace half brothers. Thompson v.
Smith, 102 Okl. 150, 227 P. 77, 80; Darson v. Moore, 163
Miss. 705, 142 So. 447, 452. It may be deemed to embrace
only a blood brother. Droney v. U. S., D.C.D.C., 59 F.
Supp. 154, 155
In the civil law, the following distinctions are observed :
Two brothers who descend from the same father, but by
different mothers, are called "consan g uine" brothers. If
they have the same mother, but are begotten by different
fathers, they are called "uterine" brothers. If they have
both the same father and mother, they are denominated
brothers "germane."
BROTHER-IN-LAW. A wife's brother or a sister's husband. There is not any relationship, but
only affinity, between brothers-in-law. Farmers'
L. & T. Co. v. Iowa Water Co., C.C., 80 Fed. 46g.
See State v. Foster, 112 La. 533, 36 So. 554. Two
men are not brothers-in-law from the circumstance merely of having married sisters. Cruce
v. State, 87 Fla. 406, 100 So. 264, 265.
BROTHERHOOD AND GUESTLING, COURT OF.
The Brotherhood was a conference of seven towns
(i. e., the Cinque Ports and two other ancient
towns) as to the provision of the necessary ships
and as to arranging for the herring sale at Yarmouth, and for other such purposes. The Guestling was rather a wider meeting, at which not
merely the Brotherhood, but deputies from other
associated towns were present for the discussion
of subjects of common interest to all.
BROUGHT. Taken; carried. United States v.
Townsend, D.C.N.Y., 219 F. 761, 762. Past tense
of "bring." Frederick v. Great Northern Ry. Co.,
207 Wis. 234, 240 N.W. 387, 390, 80 A.L.R. 984.
A proceeding is not "brought" as regards defendant until
process has been issued from an appropriate court in good
faith intending or making an effort to serve it. City of
Revere v. Special Judge of Dist. Court of Chelsea, 262 Mass.
393, 160 N.F. 431, 433. A writ of error is not -brought"
until it is filed or lodged in the court, or with the clerk
of the court, which rendered the judgment. U. S. v.
Shaffer, D.C.Wash., 278 F. 549, 531.
BROUGHT IN QUESTION UPON THE RECORD.
The constitutionality of an act is "brought in question upon the record" when it is clearly questioned
by the allegation of any pleading, or by any other
formal objection filed in the case. Brosco v
Frost, 63 R.I. 1, 6 A.2d 705, 706.
BROUGHT TO THE ATTENTION OF. Equivalent to the expression "made known to." State v.
Sullivan, 159 La. 589, 105 So. 631, 636.
BROUGHT TO TRIAL. An action is not brought
to trial until the trial is commenced. Miller &
Lux v. Superior Court of California in and for
Merced County, 192 Cal. 333, 219 P. 1006, 1009.
BROWN DECREE. A decree which terminates
marriage without specifying in whose favor issue
as to grounds for divorce was decided. Spector v.
Spector, 382 P.2d 659, 666, 94 Ariz. 175.
BRUARIUM. In old English law. A heath
grQund; ground where heath grows. Spelman.
BRUGBOTE. See Brigbote.
BRUILLUS. In old English law. A wood or
grove; a thicket or clump of trees in a park or
forest. Cowell.
242
BUILDER
BRUISE. In medical jurisprudence. A contusion;
an injury upon the flesh of a person with a blunt
or heavy instrument, without solution of continuity, or without breaking the skin. Shadock v. Road
Co., 79 Mich. 7, 44 N.W. 158. See Contusion.
BRUKBARN. In old Swedish law. The child of
a woman conceiving after a ra p e, which was made
legitimate. Literally, the child of a struggle.
Burrill.
BRUSHING. Digging of space in middle of bottom of mine entry or room neck in which to lay
track. Schillings v. Big Creek Coal Co., Mo.App.
277 S.W. 964, 965.
BRUTUM FULMEN. An empty noise; an empty
threat. A judgment void upon its face which is in
legal effect no judgment at all, and by which no
rights are divested, and from which none can be
obtained, and neither binds nor bars anyone. Dollert v. Pratt-Hewit Oil Corporation, Tex.Civ.App.,
179 S.W.2d 346, 348.
BS. Impurities in crude oil. Crude Oil Contracting Co. v. Insurance Co. of North America,
C.C.A.Okl., 118 F.2d 476.
B.T.U. "British Thermal Units." Bennett v. Piscitello, 170 Misc. 177, 9 N.Y.S.2d 69, 71.
BUBBLE. An extravagant or unsubstantial project for extensive operations in business or commerce, generally founded on a fictitious or exaggerated prospectus, to ensnare unwary investors.
Companies formed on such a basis or for such purposes are called "bubble companies." The term
is chiefly used in England.
BUBBLE ACT. The statute 6 Geo. I. c. 18 (1719),
"for restraining several extravagant and unwarrantable practices herein mentioned," prompted
by the collapse of the "South Sea Project." It
was mostly repealed by the statute 6 Geo. IV. c. 91.
BUCK SWAMPER. An employee of lumber company to mark timber and brush in a wooded area
to be cut later for the formation of a road. Demasters v. State Compensation Com'r, 112 W.Va.
498, 165 S.E. 667.
BUCKET SHOP. An office or place (other than
a regularly incorporated or licensed exchange)
where persons engage in pretended buying and
selling of commodities. Connor v. Black, 119 Mo.
126, 24 S.W. 184; Gatewood v. North Carolina,
203 U.S. 531, 27 S.Ct. 167, 51 L.Ed. 305.
BUCKETING. Receipt of orders to purchase and
sell stock without intention of executing orders
and without execution of orders. Kaiser v. Butchart, 200 Minn. 545, 274 N.W. 680, 683, 113 A.L.R.
847.
BUCKSTALL. A toil, net, or snare, to take deer.
4 Inst. 306.
BUDGET. A balance sheet or statement of estimated receipts and expenditures. Appalachian
Electric Power Co. v. City of Huntington, 115 W.
Va. 588, 177 S.E. 431, 433; a plan or method whereby expenditures are controlled. Kistler v. Carbon
County, 154 Pa.Super. 299, 35 A.2d 733, 735;
An estimate. Board of Sup'rs of Chesterfield
County v. Chesterfield County School Board, 182
Va. 266, 28 S.E.2d 698, 703.
A name given in England to the statement annually presented to parliament by the chancellor of the exchequer,
containing the estimates of the national revenue and expenditure.
BUDGET SYSTEM. A system by which income
and expenditure for definite period are balanced.
Rowe v. Stanley County, 52 S.D. 516, 219 N.W.
122, 123,
BUFFER. A contrivance to mitigate the shock
by cars coming together rather than a safety appliance; an elastic apparatus for deadening the
jar caused by the collision of bodies. George v.
Atchison, T. & S. F. Ry. Co., 102 Kan. 774, 178
P. 403, 404.
"Agency," "adjunct," "branch," "instrumentality,"
"dummy," "tool" and "buffer" as synonymous. Lowendahl v. Baltimore & 0. R. Co., 247 App.Div. 144, 287 N.Y.S.
62, 74.
BUFFET. A public place for lunch or light refreshments. McCormick v. Brennan, 224 Ill.App.
251, 254.
BUG. Vibrating horizontal arm for the semi-automatic production of code dots, as distinguished
from the Morse key. Vibroplex Co. v. J. H. Bunnell & Co., D.C.N.Y., 13 F.2d 528.
BUGGERY. A carnal copulation against nature;
a man or a woman with a brute beast, a man with
a man, or man unnaturally with a woman. 3 Inst.
58; 12 Coke, 36. Ausman v. Veal, 10 Ind. 356, 71
Am.Dec. 331; Com. v. J., 21 Pa.Co.Ct.R. 626. This
term is often used interchangeably with "sodomy"; but even when so used, it does not necessarily include the act called "fellatio" or "fellation." State v. Murry, 136 La. 253, 66 So. 963, 964.
See Sodomy.
BUILD. To construct and raise anew. Attorney
General ex rel. Gibson v. Board of Sup'rs of Montcalm County, 141 Mich, 590, 104 N.W. 792, 794.
To form by uniting materials into a regular structure. United States v. Blair, C.C.N.Y., 190 F. 372,
374. The term may also be employed in the sense
of obtain, secure, or acquire. Verner v. Muller,
89 S.C. 545, 72 S.E. 393.
"Build" is not synonymous with amend, repair, or maintain. State v. White, 16 R.I. 591, 18 A. 179; Hutchinson v.
City of Olympia, 2 Wash.T. 314, 5 P. 606, 608. But it has
been held that a grant of power to build a railroad, or a
requirement that certain persons shall build bridges, may
include the power or duty of maintenance or repair. Central R. Co. v. Collins, 40 Ga. 582, 624; Franklin County
Com'rs v. White Water Valley Canal Co., 2 Ind. 162, 163.
BUCK'S EXTENSION PROCESS. Some uniform,
continuous force or pull applied to leg or foot below break to overcome natural contraction of musBUILDER. One whose occupation is the building
cles of thigh. Sweet v. Douge, 145 Wash. 142, 259
or erection of structures, the controlling and diP. 25. See Counterextension.
243
BUILDING
recting of construction, or the planning, constructing, remodeling and adapting to particular uses
buildings and other structures. Turner v. Haar,
114 Mo. 335, 21 S.W. 737, 738. One who puts a
structure into permanent form. Kansas City
Southern Ry. Co. v. Wallace, 38 Okl. 233, 132 P.
908, 911, 46 L.R.A.,N.S., 112. One who builds.
Hopkins v. Department of Labor and Industries,
190 Wash. 251, 67 P.2d 872, 875. The term may be
synonymous with "contractor." State v. Clark,
43 Wash. 664, 86 P. 1067. It may also designate
a shipwright, a mason, etc., and likewise an architett. Savannah & C. R. Co. v. Callahan, 49 Ga.
506, 511. Contra, as to "architect," People ex
rel. v. Lower, 251 Ill. 527, 96 N.E. 346, 347, 36
L.R.A. 1203.
BUILDING. An edifice. State v. Ornelas, 42
N.M. 17, 74 P.2d 723, 725; People v. Chase, 117
Cal.App.Supp. 775, 1 P.2d 60, 61; A structure.
State v. Ornelas, 42 N.M. 17, 74 P.2d 723, 725.
A fabric built or constructed. State v. Ornelas,
42 N.M. 17, 74 P.2d 723, 725. That which is built.
Brown v. Sikes, 188 S.C. 288, 198 S.E. 854, 856;
People v. Chase, 117 Cal.App.Supp. 775, 1 P.2d
60, 61.
A fabric or edifice designed to stand more or less permanently. Brown v. Sikes, 188 S.C. 288, 198 S.E. 854, 856;
a fabric, structure, or edifice, designed for the habitation
of men or animals or for the shelter of property. People
v. Gillespie, 344 Ill. 290, 176 N.E. 316, 318. A structure or
edifice erected by man, composed of stone, wood, brick,
marble or other proper substance, and intended for use or
convenience. State v. Crouse, 117 Me. 363, 104 A. 525, 526;
Sacks v. Legg, 219 Ill.App. 144, 147; Rabb v. W. P. Ellison,
Inc., 89 N.J.Law, 416, 99 A. 119, 120. A structure or edifice
inclosing a space within its walls, and usually, but not
necessarily, covered with a roof. State v. Elliott, 198 Iowa
71, 199 N.W. 270, 271; Netter v. Scholtz, 282 Ky. 493, 138 S.
W.2d 951, 953.
"Erecting" as synonym. Board of Com'rs of Guadalupe
County v. State, 43 N.M. 409, 94 P.2d 515, 516, 520; "premises" as synonym. Everett v. Patrons' & Farmers' Mut.
Fire Ins. Co. of Jackson County, 222 Mo.App. 1010, 7 S.W.
2d 463, 468.
The term generally, though not always, implies the idea
of a habitation for the permanent use of man, or an erection connected with his permanent use. Rouse v. Catskill
& N. Y. Steamboat Co., 13 N.Y.S. 126, 127, 35 N.Y.St.Rep.
491; It imports tangibility, Wells Fargo & Co. v. Jersey
City, D.C.N.J., 207 F. 871, 876, and may include the land on
which it stands, as well as adjacent land, Thomas v. Long,
182 Iowa, 859, 166 N.W. 287, 288; Dallas Land & Loan Co.
v. Garrett, Tex.Civ.App., 276 S.W. 471, 473; Freedman v.
S. S. Kresge Co., 290 Mass. 114, 194 N.E. 829, 830. It includes many different kinds of structures and edifices.
Great Eastern Casualty Co. v. Blackwelder, 21 Ga.App. 586,
94 S.E. 843, 844. The identity or difference of meaning of
the words "building," "improvement" and "structure" depends upon context in connection with which they are used.
-Lanier v. Lovett, 25 Ariz. 54, 213 P. 391, 394.
A ship as building within gambling statute. People v.
Chase, 117 Cal.App.Supp. 775, 1 P.2d 60, 61.
BUILDING A FIRE. "Kindling a fire" and "building a fire" are equivalent. State v. Merrill, 132
Me. 103, 167 A. 172, 173.
BUILDING AND LOAN ASSOCIATION. An organization for the purpose of accumulating a fund
by subscriptions and savings of its members to
assist them in building or purchasing for themselves dwellings or real estate by the loan to them
of the requisite money. McCauley v. Association,
97 Tenn., 13 Pickle, 421, 37 S.W. 212, 213, 35 L.R.A.
244; Rhodes v. Missouri Savings & Loan Co., 173
Ill. 621, 50 N.E. 998, 1000, 43 L.R.A. 93. A juristic
person organized by government to accomplish
certain ends, which may be public or quasi public.
Hopkins Federal Savings & Loan Ass'n v. Cleary,
Wis., 296 U.S. 315, 56 S.Ct. 235, 80 L.Ed. 251, 100
A.L.R. 1403. Quasi public corporations chartered
to encourage thrift and promote ownership of
homes. Hopkins Federal Savings & Loan Ass'n v.
Cleary, Wis., 296 U.S. 315, 56 S.Ct. 235, 237, 241, 80
L.Ed. 251, 100 A.L.R. 1403.
A private corporation designed for the purpose of accumulating into its treasury, by means of the gradual payment by its members of their stock subscriptions in periodical installments, a fund to be invested from time to time
in advances made to such shareholders on their stock as
may apply for this privilege on approved security, the
borrowing members paying interest and a premium for
this preference in securing an advancement over other
members, and continuing to pay the regular installments
on their stock in addition, all of which funds, together
with payments made by the nonborrowing members, including fines, forfeitures, and other like revenues, go into
the common fund until it, with the profits thereon, aggregates the face value of all the shares in the association,
the legal effect of which is to extinguish the liability incurred for the loans and advancements, and to distribute
to each nonborrowing member the par value of his stock.
Washington Nat. Building, Loan & Investment Ass'n v.
Stanley, 38 Or. 319, 63 P. 489, 492, 84 Am.St.Rep. 793.
See, also, Wilkinson v. Mutual Bldg. & Sa y . Ass'n, C.C.A.
Wis., 13 F.2d 997, 998.
BUILDING IS COVERED. The words ordinarily
mean that the property shall be insured in the
standard form of insurance from that instant for
a reasonable time until either the policy or policies
can be written out, or their issuance approved or
disapproved or some other temporary impediment
to the complete formal contract of insurance can
be removed. Shumway v. Home Fire & Marine
Ins. Co. of California, 301 Mass. 391, 17 N.E.2d
212, 214.
BUILDING LEASE. A lease of land for a long
term of years, usually 99, at a rent called a
"ground rent," the lessee covenanting to erect certain edifices thereon according to specification, and
to maintain the same, etc., during the term.
BUILDING LIEN. The statutory lien of a material-man or contractor for the erection of a
building. June v. Doke, 35 Tex.Civ.App. 240, 80
S.W. 406.
BUILDING LINE. A line established by municipal authority, to secure uniformity of appearance
in the streets of the city, drawn at a certain uniform distance from the curb or from the edge of
the sidewalk, and parallel thereto, upon which
the fronts of all buildings on that street must be
placed, or beyond which they are not allowed to
project. See Tear v. Freebody, 4 C.B.,N.S., 263.
As used in a city charter authorizing the establishment
of a "building line" along boulevards, the term means a
mark of division or demarkation; an outline or contour;
a limit or boundary ;-not a straight line. City of St.
Louis v. Handlan, 242 Mo. 88, 145 S.W. 421, 422, 423. As to
the meaning of the term in town and city plats, see Simpson v. Mikkelsen, 196 Ill. 575, 63 N.E. 1036, 1037.
BUILDING LOAN AGREEMENT. An agreement
by which one undertakes to advance to another
244
BULLION
money to be used primarily in erection of buildings. York Mortg. Corporation v. Clotar Const.
Corporation, 254 N.Y. 128, 172 N.E. 265, 269.
BUILDING MATERIAL. Material used in construction work. Wood Preserving Corporation v.
State Tax Commission, 235 Ala. 438, 179 So. 254,
255. Material essential to erection or construction of house or other structure, Mutual Lumber
Co. v. Sheppard, Tex.Civ.App., 173 S.W.2d 494, 497,
498, 500.
BUILDING OR STRUCTURE USED AS CHURCH.
A building wholly dedicated to purposes of religious worship. Miles v. McKinney, 174 Md. 551,
199 A. 540, 547, 117 A.L.R. 207.
BUILDING PERMIT. A permit to erect a building. Commissioners of Easton v. Covey, 74 Md.
262, 22 A. 266; Commonwealth v. Devlin, 305 Pa.
440, 158 A. 161, 163.
BUILDING RESTRICTIONS. Covenants creating
easement running with land in each deed containing restrictions. Strauss v. J. C. Nichols Land
Co., 327 Mo. 205, 37 S.W.2d 505, 508.
BUILDING SITE. As used in contract, for filling
of the "building site" to grade, term contemplated
the entire lot. Myevre v. Liberty Realty & Securities Co., 156 La. 496, 100 So. 694, 696.
BUILDING SOCIETY. An association in which
the subscriptions of the members form a capital
stock or fund out of which advances may be made
to members desiring them, on mortgage security.
BUL. In the ancient Hebrew chronology, the
eighth month of the ecclesiastical, and the second
of the civil year. It has since been called "Marshevan," and answers to our October.
BULK. Unbroken packages. Merchandise which
is neither counted, weighed, nor measured. See
Texas & P. Ry. Co. v. Gate City Fertilizer Co.,
Tex.Civ.App., 176 S.W. 868, 869.
Bulk is said of that which is neither counted, weighed,
nor measured. A sale by the bulk is the sale of a quantity such as it is, without measuring, counting, or weighing.
Civil Code La. art. 3556, par. 6.
When used in relation to sale of goods by sample, "bulk"
means the whole quanti,, , of goods sold, which is supposed
to be fairly represented by the sample. American Paper
Products Co. v. Morton Salt Co., Mo.App., 279 S.W. 761,
763. This is the meaning which the word has as used in
Uniform Sales Act Pa. § 14, P.L. c. 543; 69 P.S. § 123,
F. A. D. Andrea, Inc., v. Dodge, C.C.A.Pa., 15 F.2d 1003,
1005.
BULK SALES ACTS. A class of statutes designed
to prevent the defrauding of creditors by secret
sale in bulk of all or substantially all of a merchant's stock of goods. A. J. Long Cigar & Grocery Co. v. Harvey, 33 Ga.App. 236, 125 S.E. 870;
Wolfe v. Bellfair Hat Co., Sup., 47 N.Y.S.2d 908,
910.
structions in the street. City of Baltimore v. Nirdlinger, 131 Md. 600, 102 A. 1014, 1019.
BULL. In ecclesiastical law. An instrument
granted by the pope of Rome, and sealed with a
seal of lead, containing some decree, commandment, or other public act, emanating from the pontiff. Bull, in this sense, corresponds with edict
or letters patent from other governments. Cowell; 4 Bl.Comm. 110; 4 Steph.Comm. 177, 179.
There are three kinds of apostolical rescripts—the brief,
the signature, and the bull; which last is most commonlyused in legal matters.
This is also a cant term of the Stock Exchange,
meaning one who speculates for a rise in the market.
BULL AND BOAR. These animals, by the ancient custom of some places, were required to be
kept by the parson for the use of his parishioners,
in consideration of his having tithes of calves and
pigs. 1 Rolle Abr. 559.
BULLDOZER. A blade, the arms of which are
fastened to a tractor and hold the blade in front of
the tractor. Eldredge v. Sargent, 150 Kan. 824,
96 P.2d 870, 871.
BULL-HEADED. Headstrong, obstinate, stupidly
stubborn. Enloe v. Southern Ry. Co., 179 N.C. 83,
101 S.E. 556, 558.
BULL PEN. A certain place of confinement at a
penitentiary. State v. Kelley, 118 Or. 397, 247 P.
146, 148.
BULLA. A seal used by the Roman emperors,
during the lower empire; it was of four kinds,—
gold, silver, wax, and lead.
BULLET. Synonymous with "shot," meaning a
projectile, particularly a solid ball or bullet that
is not intended to fit the bore of a piece. Green
v. Commonwealth, 122 Va. 862, 94 S.E. 940, 941.
BULLETIN. An officially published notice or announcement concerning the progress of matters of
public importance. In France, the registry of the
laws.
BULLETIN DES LOIS. In France, the official
sheet which publishes the laws and decrees; this
publication constitutes the promulgation of the
law or decree.
BULLION. Gold and silver intended to be coined.
The term is usually applied to a quantity of these metals
ready for the mint, but as yet lying in bars, plates, lumps,
or other masses ; but it may also include ornaments or
dishes of gold and silver, or foreign coins not current as
money, when intended to be descriptive of its adaptability
to be coined, and not of other purposes to which it may be
put. Thalheim v. State, 38 Fla. 169, 20 So. 938. The term
may import money. Emery Bird Thayer Dry Goods Co. v.
Williams, C.C.A.Mo., 98 F.2d 166, 171.
BULLION FUND. A fund of public money maintained in connection with the mints, for the purpose of purchasing precious metals for coinage,
and also of enabling the mint to make returns of
coins to private depositors of bullion without waiting until such bullion is actually coined.
BULK WINDOWS. "Bulk windows" include show
windows as well as bay windows, sometimes
called "bow windows," within a statute conferring on cities the power to regulate certain ob245
BUM-BAILIFF '
BUM-BAILIFF. A person employed to dun one
for a debt; a bailiff employed to arrest a debtor.
Probably a vulgar corruption of "bound-bailiff"
(q. v.).
of the executive or administrative branch of government, or their divisions. In re Strawbridge, 39
Ala. 375; In re McLaughlin, 124 Misc. 766, 210
N.Y.S. 68, 72.
As applied to a division of an administrative department, the term may include the operating force. People
v. Coffin, 202 Ill. App. 100.
BUNCO GAME. Any trick, artifice, or cunning
calculated to win confidence and to deceive, whether by conversation, conduct, or suggestion. State
v. Ferrato, 72 Wash. 112, 129 P. 898, 899.
BUREAUCRACY. A system in which the business
of government is carried on in departments, each
under the control of a chief, in contradistinction
from a system in which the officers of government have a co-ordinate authority.
BUNDA. In old English law. A bound, boundary,
border, or limit (terminus, limes).
BUNDLE, v. To sleep on the same bed without
undressing; applied to the custom of a man and
woman, especially lovers, thus sleeping. A. & E.
Ency. This custom is adverted to in Seagar v.
Sligerland, 2 Caines, N.Y., 219, and Hollis v. Wells,
3 Clark, Pa., 169.
BURG, BURGH. A term anciently applied to a
castle or fortified place; a borough (q. v.). Spelman.
BUOY. In maritime law. A piece of wood or
cork, or a barrel, raft, or other thing, made secure
and floating upon a stream or bay, intended as a
guide and warning to mariners, by marking a
spot where the water is shallow, or where there
is a reef or other danger to navigation, or to mark
the course of a devious channel. Buoys are regulated by federal legislation; see 14 U.S.C.A. § 87.
BURDEN. A burden, as on interstate commerce,
means anything that imposes either a restrictive
or onerous load upon such commerce. State of
Missouri v. Kansas Natural Gas Co., D.C.Mo., 282
F. 341, 345.
Where the Railroad Commission ordered construction of
a viaduct carrying a street over railroad tracks, construction and operation of street car tracks on the viaduct was
not an "additional burden," and did not entitle abutting
owners to damages. In eminent domain or condemnation
proceedings see In re Ely Ave. in City of New York, 88
Misc. 320, 150 N.Y.S. 698, 701.
BURGAGE. A name anciently given to a dwelling-house in a borough town. Blount.
BURGAGE-HOLDING. A tenure by which lands
in royal boroughs in Scotland were held of the
sovereign. The service was watching and warding, and was done by the burgesses within the
territory of the borough, whether expressed in
the charter or not.
BURGAGE-TENURE. In English law. One of
the three species of free socage holdings; a tenure whereby houses and lands which were formerly the site of houses, in an ancient borough, are
held of some lord by a certain rent. There are a
great many customs affecting these tenures, the
most remarkable of which is the custom of Borough English. See Litt. § 162; 2 BLComm. 82.
BURGATOR. One who breaks into houses or inclosed places, as distinguished from one who committed robbery in the open country. Spelman.
BURDEN OF PROOF. (Lat. onus probandi.) In
the law of evidence. The necessity or duty of affirmatively proving a fact or facts in dispute on
an issue raised between the parties in a cause.
Willett v. Rich, 142 Mass. 356, 7 N.E. 776, 56 Am.
Rep. 684; People v. McCann, 16 N.Y. 58, 69 Am.
Dec. 642, 15 How.Pr. 503.
The term "burden of proof" is not to be confused with
"prima facie case," Kendall v. Brownson, 47 N.H. 200;
Carver v. Carver, 97 Ind. 511, or with expressions referring
to a similar idea, such as the "burden of evidence," Hyer
v. C. E. Holmes & Co., 12 Ga.App. 837, 79 S.E. 58, 60, or
"the burden of proceeding," Mason v. Geist, Mo.App., 263
S. W. 236, 237, or the burden of going forward with the
evidence, First Nat. Bank v. Ford, 30 Wyo. 110, 216 P. 691,
694, 31 A.L.R. 1441.
It is frequently said, however, to have two distinct meanings : (1) the duty of producing evidence as the case progresses, and (2) the duty to establish the truth of the
claim by preponderance of the evidence, and though the
former may pass from party to party, the latter rests
throughout upon the party asserting the affirmative of the
issue. Sellers v. Kincaid, 303 Ill. 216, 135 N.E. 429, 433;
Stofer v. Dunham, Mo.App., 208 S.W. 641, 644,
Again "burden of proof" is sometimes used to refer merely to the rule of practice fixing the order of proof, as distinguished from the "preponderance of the evidence"
meaning the weight of evidence. Thompson v. Dyson, 120
Kan. 591, 244 P. 867, 868.
BUREAU. An office for the transaction of business. A name given to the several departments
BURGBOTE. In old English law. A term applied
to a contribution towards the repair of castles
or walls of defense, or of a borough.
BURGENSES. In old English law. Inhabitants
of a burgus or borough; burgesses. Fleta, lib. 5,
c, 6, § 10.
BURGERISTH. A word used in Domesday, signifying a breach of the peace in a town. Jacob.
BURGESS. In English law. An inhabitant or
freeman of a borough or town; a person duly and
legally admitted a member of a municipal corporation. Spelman; 3 Steph.Comm. 188, 189. A
magistrate of a borough. Blount. An elector or
voter; a person legally qualified to vote at elections. The word in this sense is particularly defined by the statute 5 & 6 Wm. IV. c. 76, §§ 9, 13.
3 Steph.Comm. 192. A representative of a borough or town, in parliament. Co.Litt. 109a; 1
Bl.Comm. 174.
In American law. The chief executive officer
of a borough, bearing the same relation to its
government and affairs that the mayor does to
those of a city; so used in Pennsylvania. In Connecticut boroughs the board of burgesses cor-
246
BURN
responds to the township board or board of
trustees in some other states, or to the common
council of a city. Cent. Dict.
Burglary committed "between sunset and sunrise". People v. Helsley, 41 Cal.App.2d 935, 108
P.2d 97, 98.
BURGESS ROLL. A roll, required by the St. 5 &
6 Wm. IV. c. 76, to be kept in corporate towns or
boroughs, of the names of burgesses entitled to
certain new rights conferred by that act.
BURGOMASTER. The title given in Germany to
the chief executive officer of a borough, town, or
city; corresponding to our "mayor."
BURGH-BRECHE. A fine imposed on the community of a town, for a breach of the peace, etc.
BURGH ENGLISH. See Borough English.
BURGH ENGLOYS. Borough English (q. v.).
BURGHMAILS. Yearly payments to the crown
of Scotland, introduced by Malcolm III., and resembling the English fee-farm rents.
BURGHMOTE. In Saxon law. A court of justice held semi-annually by the bishop or lord in
a burg, which the thanes were bound to attend
without summons.
BURGLAR. One who commits burglary. One
who breaks into a dwelling-house in the nighttime
with intent to commit a felony. O'Connor v.
Press Pub. Co., 34 Misc. 564, 70 N.Y.Supp. 367.
See Burglary.
BURGLARIOUSLY. In pleading. A technical
word which must be introduced into an indictment for burglary at common law. Lewis v.
State, 16 Conn. 34; Reed v. State, 14 Tex.App. 665.
BURGLARITER. L. Lat. (Burglariously.) In
old criminal pleading. A necessary word in indictments for burglary.
BURGLARY. The breaking and entering the
house of another in the nighttime, with intent to
commit a felony therein, whether the felony be
actually committed or not. Soders v. State, 81
Tex.Cr.R. 506, 195 S.W. 1146, 1147; Hunter v.
State, 29 Ind. 80; State v. Allen, 186 N.C. 302, 119
S.E. 504, 506; State v. Hodgdon, 89 Vt. 148, 94 A.
301, 302.
The common-law definition has been much modified by
statute in several of the states. Pen.Code Cal. § 459; People v. Mendelson, 264 Ill. 453, 106 N.E. 249, 251, L.R.A.
1915C, 627; State v. Dunlap, 103 N.J.Law, 209, 136 A. 510;
Burglary of private residence at night is "nighttime burglary" and not ordinary "burglary." Shaffer v. State, 137
Tex.Cr.R. 476, 132 S.W.2d 263. Commission in nighttime
is not essential. People v. Glickman, 377 Ill. 360, 36 N.E.2d
720, 722, 723; State v. Williams, 189 La. 355, 179 So. 452.
Entry in the nighttime without breaking, or breaking and
entering in the daytime constitutes "burglary." State v.
Williams, 189 La. 355. 179 So. 452.
Intended commission of some other offense is essential.
Commonwealth v. Doran, 145 Pa.Super. 173, 20 A.2d 815,
816.
Entry into a house made in an unusual place with intent to commit a felony or theft is a "burglary by breaking." Harroll v. State, 135 Tex.Cr.R. 65, 117 S.W.2d 103.
See Breaking.
BURGUNDIAN LAW. See Lex Burgundionum.
BURGWHAR. A burgess (q. v.).
BURH. A fastness. The hill-top that has been
fortified as a burh. Very often it has given its
name to a neighboring village; it is the future
borough. The entrenchment around a great man's
house was a burh. See Maitland, Domesday and
Beyond, 183.
BURIAL. Act of burying a deceased person, sepulture, interment, act of depositing a dead body
in the earth, in a tomb or vault, or in the water;
the act of interring the human dead. Brady v.
Presnell, 204 N.C. 659, 169 S.E. 278, 280. See Lay
v. State, 12 Ind.App. 362, 39 N.E. 768.
BURIAL INSURANCE. A contract based on legal consideration whereby obligor undertakes to
furnish obligee or one of latter's relatives at death
burial reasonably worth fixed sum. Sisson v. Prata Undertaking Co., 49 R.I. 132, 141 A. 76.
BURIAL PLACE. A portion of ground set apart
for or occupied by grave, or as a grave or graveyard. Code 1932, § 9052. Leaphart v. Harmon,
186 S.C. 362, 195 S.E. 628, 629.
BURIAL PURPOSES. Continuing care, preservation, and ornamentation of the place of interment as included in term. People v. Rosehill
Cemetery Co., 371 Ill. 510, 21 N.E.2d 766, 770.
BURKING, BURKISM. Murder committed with
the object of selling the cadaver for purposes of
dissection, particularly and originally, by suffocating or strangling the victim.
BURLAW COURTS. Courts consisting of neighbors selected by common consent to act as judges
in determining disputes between neighbor and
neighbor.
BURLAWS. In Scotch law. Laws made by neighbors elected by common consent in the burlaw
courts. Skene.
BURLESQUE. A plotless musical entertainment
consisting of a series of unrelated episodes and
dances, all with the purpose of depicting or suggesting sexual subjects or objects. Bonserk Theatre Corporation v. Moss, Sup., 34 N.Y.S.2d 541, 549.
BURN, n. A hurt, injury, or effect caused by burning. Webster, Dict.
A "first-degree burn" varies from redness to a blister.
A "second-degree burn" results where the skin is charred
BURGLARY IN THE FIRST DEGREE. Unlawful
or killed. Murphy v. Ludowici Gas & Oil Co., 96 Kan. 321,
and intentional breaking and . unlawful and inten150 P. 581, 582.
tional entry in nighttime into dwelling house presently occupied, with intent to commit felony. BURN, v. To consume with fire. See Hiatt v.
State v. Madden, 212 N.C. 56, 192 S.E. 859, 860.
Travelers' Ins. Co., 197 Iowa 153, 197 N.W. 3, 4, 33
247
BURN
A.L.R. 655; Pacific Creosoting Co. v. Thames &
Mersey Marine Ins. Co., D.C.Wash., 210 F. 958,
959.
"Burning," outside of laboratories and certain workshops, is a process of oxidation, which, if sufficiently violent, heats the elements involved to incandescence, and, if
combustible gases are given off, there is a flame. Scully
v. Bremer County Farmers' Mut. Fire Ins. Ass'n, 215 Iowa
368, 245 N.W. 280, 282.
The verb "to burn," iu an indictment for arson, is to be
taken in its common meaning of "to consume with fire."
Hester v. State, 17 Ga. 130. To constitute a "burning"
essential to arson, there must be a wasting or destruction
of the fibers or texture of the wood, no matter how small
in extent. People v. Oliff, 361 Ill. 237, 197 N.E. 777, 780;
it is not necessary that the building should be consumed or
materially injured and it is sufficient if fire is actually communicated to any part thereof, however small. State v.
Mutschler, 55 N. D. 120, 212 N.W. 832, 833; charring is
burning. State v. Pisano, 107 Conn. 630, 141 A. 660, 661.
BURNED OUT OF SIGHT. Merchandise is
"burned out of sight" when burned to an ash or
into such small particles that it might be washed
away by water or swept into debris. Hyland v.
Millers Nat. Ins. Co., D.C.Cal., 58 F.2d 1003, 1007.
BURNING FLUID. As used in policies of insurance, this term does not mean any fluid which
will burn, but it means a recognized article of
commerce, called by that name, and which is a
different article from naphtha or kerosene. Putnam v. Insurance Co., C.C.N.Y., 4 Fed. 764;
Wheeler v. Insurance Co., 6 Mo.App. 235.
BURNING IN THE HAND. In old English criminal law, laymen, upon being accorded the benefit
of clergy, were burned with a hot iron in the
brawn of the left thumb, in order that, being
thus marked, they could not again claim their
clergy. 4 Bl.Comm. 367. This practice was finally
abolished by Stat. 19 Geo. III. c. 74; though before
that time the burning was often done with a cold
iron.
BURNT COTTON. Cotton which has been on
fire, and which has not been subsequently repicked
and rebaled. Southern Ry. Co. v. Pettit, C.C.A.
Tenn., 257 F. 663, 664.
BURROCHIUM. A burroch, dam, or small wear
over a river, where traps are laid for the taking of
fish. Cowell.
BURROWMEALIS. In Scotch law. A term used
to designate the rents paid into the king's private
treasury by the burgesses or inhabitants of a borough.
BURSA. Lat. A purse.
BURSAR. A treasurer of a college.
BURSARIA. The exchequer of collegiate or conventual bodies; or the place of receiving, paying,
and accounting by the bursars. Also stipendiary
scholars, who live upon the burse, fund, or jointstock of the college.
BURYING ALIVE. In English law. The ancient
punishment of sodomites, and those who contracted with Jews. Fleta, lib. 1, c. 27, § 3.
BURYING-GROUND. A place set apart for the
interment of the dead; a cemetery. Appeal Tax
Court v. Academy, 50 Md. 353.
BUS. A vehicle which serves passenger public,
but does not operate upon fixed tracks. Patillo v.
State, 120 Tex.Cr.R. 568, 47 S.W.2d 847.
BUSCARL, In Saxon and old English law. Seamen or marines. Spelman.
BUSHEL. A dry measure, containing four pecks,
eight gallons, or thirty-two quarts. But the dimensions of a bushel, and the weight of a bushel
of grain, etc., vary in the different states in consequence of statutory enactments. Richardson v.
Spafford, 13 Vt. 245; Milk v. Christie, 1 Hill, N.Y.,
106; Hockin v. Cooke, 4 Term, 316.
BUSHIDO. Jap. The unwritten code of conduct
of the Samurai demanding loyalty to superiors
only, simplicity of living and military valor.
Treachery and brutality against one's enemies,
and self-sacrifice, blind loyalty and unquestioning
obedience to one's superiors are cardinal characteristics of the code. 1945 Report of the Tenney
Joint Fact-Finding Committee on Un-American Activities to the California Legislature, p. 49.
BUSINESS. The term "business" has no definite
or legal meaning. Connor v. City of University
Park, Tex.Civ.App., 142 S.W.2d 706, 715; it may be
an uncertain one. In re Frey's Will, 154 Misc.
421, 277 N.Y.S. 269, 272.
The term may mean or embrace:
Activity, Norman v. Southwestern R. Co., 42 Ga.App. 812,
157 S.E. 531, 533; In re Frey's Will, 277 N.Y.S. 269, 272,
154 Misc. 421; activity of some continuity, regularity and
permanency, means of material being and livelihood, Board
of Sup'rs of Amherst County v. Boaz, 176 Va. 126, 10 S.E.2d
498, 499. Activity or enterprise for gain, benefit, advantage or livelihood, Union League Club v. Johnson, Cal.
App., 108 P.2d 487, 490. Activity which benefits corporation's organizers or members, O'Neil v. United Producers
& Consumers Co-op., 57 Ariz. 295, 113 P.2d 645, 648; affairs,
Sills v. Sorenson, 192 Wash. 318, 73 P.2d 798, 802, Industrial Fibre Co. v. State, 31 Ohio App. 347, 166 N.E. 418, 419;
any particular occupation or employment, Industrial Fibre
Co. v. State, 31 Ohio App. 347, 166 N.E. 418, 419; automobile liability policy excepting liability to insured's chauffeurs while engaged in his "business," anything in which
insured desired to concern himself. Dickey v. General
Accident Fire & Life Assur. Corporation Limited of Perth,
Scotland, 328 Pa. 541, 195 A. 875 ; barter, Wills v. National.
Mineral Co., 176 Okl. 193, 55 P.2d 449, 453; busyness, Snell
v. Commissioner of Internal Revenue, C.C.A.Fla., 97 F.2d891, 892; calling, Gardner v. Trustees of Main St. M. E.
Church of Ottumwa, Iowa, 244 N.W. 667, 669, Morgan v.
Salt Lake City, 78 Utah 403, 3 P.2d 510, 513; capacity by
which results are reached, Norman v. Southwestern R. Co.,
42 Ga.App. 812, 157 S.E. 531, 533; In re Frey's Will, 277
N.Y.S. 269, 272, 154 Misc. 421; commercial or industrial
establishment or enterprise, Westor Theatres v. Warner
Bros. Pictures, D.C.N.J., 41 F.Supp. 757, 761; concern,
Industrial Fibre Co. v. State, 31 Ohio App. 347, 166 N.E.
418, 419; constant or continuous or habitual employment
or occupation, Burk v. United States, C.C.A.Ala., 134 F.2d
879, 881; efforts of men to improve their economic conditions and satisfy their desires, people ex rel. Atty. Gen. v.
Jersin, 101 Colo. 406, 74 P.2d 668, 670; employment, Industrial Fibre Co. v. State, 31 Ohio App. 347, 166 N.E. 418, 419;
employment, occupation, or profession engaged in for gain
or livelihood, Mergenthaler Linotype Co. v. McNamee, 123
Neb. 71, 249 N.W. 92, 93; employment occupying substantial portion of time and attention, Walsh v. Industrial Commission, 345 Ill. 366, 178 N.E. 82, 83; energy by which
results are reached, Norman v. Southwestern R. Co., 42
248
BUSINESS
Ga.App. 812, 157 S.E. 531, 533; In re Frey's Will, 277
N.Y.S. 269, 272, 154 Misc. 421; enterprise in which person
engaged shows willingness to invest time and capital on
future outcome, Doggett v. Burnet, 62 App.D.C. 103, 65
F.2d 191, 194; every legitimate avocation in life by which
honest support for family may be obtained, Postal Savings
& Loan Ass'n v. Powell, Tex.Civ.App., 47 S.W.2d 343, 352;
every step in a long, complicated financial or commercial
transaction, Business Management Corporation v. Department of Industrial Relations, Cal.App., 123 P.2d 142, 143;
everything about which a person can be employed, Higgins
v. Commissioner of Internal Revenue, 312 U.S. 212, 61 S.Ct.
475, 478, 85 L.Ed. 783; exchange of things of value, Wills v.
National Mineral Co., 176 Okl. 193, 55 P.2d 449, 45.3; family
car doctrine, any benefit which may inure to the owner,
Donn v. Kunz, Ariz., 79 P.2d 965, 968; good will, In re
Frey's Will, 277 N.Y.S. 269, 272, 154 Misc. 421, In re Weber's Estate, 261 Pa. 561, 104 A. 735, 737; intercourse of a
commercial character, Karnuth v. U. S., on Petition of
Albro, for Cook, N. Y., 279 U.S. 231, 49 S.Ct. 274, 278, 73
L. Ed. 677; mercantile transactions in general, Industrial
Fibre Co. v. State, 31 Ohio App. 347, 166 N.E. 418, 419;
occupation, Industrial Fibre Co. v. State, 31 Ohio App. 347,
166 N.E. 418, 419, Morgan v. Salt Lake City, 78 Utah 403,
3 P.2d 510, 513; occupation connected with operation or
details of barter, trade, industry or commerce, Bankers'
Holding Corporation v. Maybury, 161 Wash. 681, 297 P.
740, 743, 75 A.L.R. 1237; occupation or duty which requires
attention as a business, Taylor v. Seney, 52 Ohio App. 79,
3 N.E.2d 374, 376; opportunities, Norman v. Southwestern
R. Co., 42 Ga.App. 812, 157 S.E. 531, 533, In re Frey's Will,
277 N.Y.S. 269, 272, 154 Misc. 421; ordinary vocation, Ostlie v. H. F. Dirks & Son, 189 Minn. 34, 248 N.W. 283; professions, Connor v. City of University Park, Tex.Civ.App.,
142 S.W.2d 706, 715; property, In re Frey's Will, 277
N.Y.S. 269, 272, 154 Misc. 421; In re Weber's Estate, 261
Pa. 561, 104 A. 735, 737; pursuit, Morgan v. Salt Lake City,
78 Utah 403, 3 P.2d 510, 513; regular profession, trade or
occupation, Bordo v. Grayek, 136 Pa.Super. 124, 7 A.2d 142,
144; right or occasion of making one's self busy, Industrial Fibre Co. v. State, 31 Ohio App. 347, 166 N.E. 418,
419; sale, Wills v. National Mineral Co., 176 Okl. 193, 55
P.2d 449, 453; that which habitually busies or occupies or
engages the time, attention, labor, and effort of men as a
principal serious concern or interest or for livelihood or
profit, Curley v. New England Trust Co., 221 Mass. 384, 109
N.E. 171, 174, Massolini v. Driscoll, 114 Conn. 546, 159 A.
480, 482; trade, Connor v. City of University Park, Tex.Civ.
App., 142 S.W.2d 706, 715, Morgan v. Salt Lake City, 78
Utah 403, 3 P.2d 510, 513 ; transaction, Industrial Fibre Co.
v. State, 31 Ohio App. 347, 166 N.E. 418, 419; occasional,
single or isolated activities do not constitute business, Vandervort v. Industrial Commission of Wisconsin, 203 Wis.
362, 234 N.W. 492, 493; Goddard v. Chaffee, 2 Allen, Mass.,
395, 79 Am. Dec. 796. But see Industrial Commission v.
Hammond, 77 Colo. 414, 236 P. 1006, 1008.
Definition of "business" is not dependent on whether
enterprise is profitable or has prospects of being profitable.
Doggett v. Burnet, 62 App.D.C. 103, 65 F.2d 191, 193.
Labor, business, and work are not synonyms.
Business Course
A course such as is usually taught by business
or commercial schools and colleges. Union Nat.
Bank v. Kirby, 189 Ark. 369, 72 S.W.2d 229, 230.
Business Affected with Public Interest
Business Losses
Losses from sale, exchange, or other disposition of property used in trade or business. Fackler v. Commissioner of Internal Revenue, C.C.A.6,
133 F.2d 509, 512.
One so employed as to justify conclusion that it has been
devoted to public use, and its use thereby in effect granted
to public. Williams v. Standard Oil Co. of Louisiana,
Tenn., 278 U.S. 235, 49 S.Ct. 115, 116, 73 L.Ed. 287, 60
A.L.R. 596.
Business Agent
Agent having some general supervision over
general affairs. Rorick v. Stilwell, 101 Fla. 4,
133 So. 609, 615.
Business Compulsion
Species of duress. Marrazzo v. Orino, Wash.,
194 Wash. 364, 78 P.2d 181, 186.
Business Done in State
Business begun and completed or ended in state.
Clark v. Atlantic Pipe Line Co., Tex.Civ.App., 134
S.W.2d 322, 328.
Business Enterprise
Investment of capital, labor and management
in an undertaking for profit; one of the recognized attributes is centralized management and
control. Helvering v. Jewel Mining Co., C.C.A.8,
126 F.2d 1011, 1015.
Business Gains
Gains from sale, exchange, or other disposition
of property used in business. Fackler v. Commissioner of Internal Revenue, C.C.A.6, 133 F.2d 509,
512.
Business Hours
In general those hours during which persons
in the community generally keep their places open
for the transaction of business. Casalduc v. Diaz,
C.C.A.Puerto Rico, 117 F.2d 915, 916.
In respect to the time of presentment and demand of
bills and notes, business hours generally range through the
whole day down to the hours of rest in the evening, except
when the paper is payable at a bank or by a banker;
Cayuga County Bank v. Hunt, 2 Hill, N.Y., 635. See Lunt
v. Adams, 17 Me. 230.
An order allowing a stockholder to examine the books
of a corporation "during business hours" does not mean
that such examination be carried on throughout the entire
business day, nor in the nighttime. Breslauer v. S. Franklin & Co., 205 Ill. App. 372, 374.
Business League
An association is a business league if persons
thereof have some common business interest. Underwriters' Laboratories v. Commissioner of Internal Revenue, C.C.A.7, 135 F.2d 371, 374.
Business Name
Trade-name, business name and commercial
name as synonymous. Plum v. Siekmann, 135
Neb. 101, 280 N.W. 264, 268.
Business of Peddling
Business of one relying on present solicitation
Business Corporation
of chance patrons for purchases of uncertain
A corporation organized for the purpose of car- quantities and making concurring deliveries. Narying on a business for profit. City of St. Louis
tional Baking Co. v. Zabel, 227 Wis. 93, 277 N.W.
691, 693.
v. Smith, 325 Mo. 471, 30 S.W.2d 729, 731.
249
BUSINESS
Business of Public Character
Business wherein person engaged expressly or
impliedly holds himself out as engaged in business
of supplying his product or service to public as a
class or to limited portion of public. Masgai v.
Public Service Commission of Pennsylvania, 124
Pa.Super. 370, 188 A. 599, 600.
Business of Same Nature
Business of like character. Rahoutis v. Unemployment Compensation Commission, 171 Or. 93,
136 P.2d 426, 434.
Business of Similar Nature
Business of analogous nature. Bedford v. Johnson, 102 Colo. 203, 78 P.2d 373, 376.
Business of the Community
A business in which a husband is engaged is
prima facie the business of the community. Bird
v. Steele, 74 Wash. 68, 132 P. 724, 725.
Business Pertaining to His Occupation
Duty pertaining to his occupation as synonym.
Doherty v. American Employers' Ins. Co. of Boston, Mass., 112 N.J.Law, 52, 169 A. 652, 653.
Business Situs
A situs acquired for tax purposes by one who
has carried on a business in the state more or less
permanent in its nature. Endicott, Johnson & Co.
v. Multnomah County, 96 Or. 679, 190 P. 1109, 1111.
A situs arising when notes, mortgages, tax sale
certificates and the like are brought into the state
for something more than a temporary purpose,
and are devoted to some business use there and
thus become incorporated with the property of
the state for revenue purposes. Lockwood v.
Blodgett, 106 Conn. 525, 138 A. 520, 525. A situs
arising where possession and control of property
right has been localized in some independent business or investment away from owner's domicile
so that its substantial use and value primarily
attach to and become an asset of the outside business. State v. Atlantic Oil Producing Co., 174 Oki.
61, 49 P.2d 534, 538.
directly or indirectly connected with the business
dealings between them, Kurre v. Graham Ship by
Truck Co., 136 Kan. 356, 15 P.2d 463, 465. One
who comes on land at occupant's instance for
purposes connected with purpose, business, or otherwise, for which occupant uses land, Haefeli v.
Woodrich Engineering Co., 255 N.Y. 442, 175 N.E.
123, 125.
Farming Business
See Farming Business.
Private Business or Enterprise
One in which capital, time, attention, labor, and
intelligence have been invested for gain and profit
for private benefit, purposes and use. Green v.
Frazier, 44 N.D. 395, 176 N.W. 11, 17.
Public Business
An element is that the business by its nature
must be such that the public must use the same,
or the commodities bought and sold in such manner as to affect the community at large as to supply, price, etc. Consumers' Light & Power Co. v.
Phipps, 120 Okl. 223, 251 P. 63, 64.
BUSONES COMITATUS. In old English law.
The barons of a county.
BUSSA. A term used in the old English law, to
designate a large and clumsily constructed ship.
BUT. Except, except that, on the contrary, or,
and also, yet, still. State v. Marsh, 108 Neb. 267,
187 N.W. 810, 812; Rickman v. Commonwealth,
195 Ky. 715, 243 S.W. 929.
BUTANE. Highly explosive and inflammable substance. Ohio Casualty Ins. Co. v. Callaway, D.C.
Okl., 45 F.Supp. 586, 588.
BUTCHER. One who slaughters animals or
dresses their flesh for market; a dealer in meat.
Broadway v. Cope, 208 N.C. 85, 179 S.E. 452;
Provo City v. Provo Meat & Packing Co., 49 Utah
528, 165 P. 477, 479, Ann.Cas.1918D, 530.
BUTLERAGE. A privilege formerly allowed to
the king's butler, to take a certain part of every
cask of wine imported by an alien; the part of
the cask thus taken.
Called also prisage; 2 Bulstr. 254. Anciently,
it might be taken also of wine imported by a subject. 1 Bla.Com. 315; Termes de la Ley; Cowell.
See, also, Botiler of the King.
Business Trust
As distinguished from a joint-stock company, a
pure "business trust" is one in which the managers are principals, and the shareholders are
cestuis que trust. Betts v. Hackathorn, 159 Ark.
621, 252 S.W. 602, 604, 31 A.L.R. 847. The essential attribute is that property is placed in the
BUTLER'S ORDINANCE. In English law. A law
hands of trustees who manage and deal with it
for the heir to punish waste in the life of the anfor use and benefit of beneficiaries. Morriss v.
cestor.
Finkelstein, Mo.App., 127 S.W.2d 46, 49. A "Mas"Though it be on record in the parliament book of
Edward I., yet it never was a statute, nor ever so received;
sachusetts trust" or "common law trust," In re
but only some constitution of the king's council, or lords
Conover's Estate, 295 Ill.App. 443, 14 N.E.2d 980,
in parliament, which never obtained the strength or force
985.
of an act of parliament." Hale, Hist. Eng. Law, p. 18.
Business Visitor
BUTT. A measure of liquid capacity, equal to one
One who is invited or permitted to enter or rehundred and eight gallons; also a measure of
main upon the premises of another for a purpose
land.
250
BY
BUTTALS. The bounding lines of land at the end;
abuttals, which see.
BUTTE. A hill. State v. Jefferson Island Salt
Mining Co., 183 La. 304, 163 So. 145.
BUTTED AND BOUNDED. A phrase sometimes
used in conveyancing, to introduce the boundaries
of lands. See Butts and Bounds.
BUTTER. A dairy product manufactured exclusively from pure, unadulterated milk or cream, or
both, with or without salt or coloring matter.
Pardy v. Boomhower Grocery Co., 178 App.Div.
347, 164 N.Y.S. 775, 776; a product which should
contain not less than 80 per centum by weight of
milk fat. U. S. v. Centralia Dairy Co., D.C.Wash.,
60 F.2d 141, 142.
BUTTER FAT. The natural fat of milk. Wiseman v. Affolter, 192 Ark. 509, 92 S.W.2d 388, 389.
BUTTS. In old English law. Short pieces of land
left unplowed at the ends of fields, where the plow
was turned about (otherwise called "headlands")
as sidelings were similarly unplowed pieces on
the sides. Burrill; Cowell. Also a place where
bowmen meet to shoot at a mark.
BUTTS AND BOUNDS. A phrase used in conveyancing, to describe the end lines or circumscribing lines of a certain piece of land. The
phrase "metes and bounds" has the same meaning.
The angles or points where these lines change
their direction. Cowell; Spelman, Gloss. See
Abuttals.
BUTTY. A local term in the north of England, for
the associate or deputy of another; also of things
used in common.
BUY. To acquire the ownership of property by
giving an accepted price or consideration therefor;
or by agreeing to do so; to acquire by the payment of a price or value; to purchase. Webster.
To obtain something for a price, usually money.
In re Troy, 43 R.I. 279, 111 A. 723, 724. As applied
to prohibition law, means to possess. Slaughter
v. State, 23 Ala.App. 390, 128 So. 129.
BUY IN. To purchase, at public sale, property
which is one's own or which one has caused or
procured to be sold.
BUYER. One who buys; a purchaser, particularly
of chattels.
BUYER 60 CONTRACT. A contract wherein purchaser not wishing to pay for stock purchased
outright buys it at a price in ewcess of the market
and is allowed 60 days' time to pay for stock.
Herrlein v. Tocchini, 128 Cal.App. 612, 18 P.2d 73,
75.
possession of the land or is disseised. Void, and
an offense, at common law and by 32 Hen. VIII, c.
9. This rule has been generally adopted in the
United States, and is affirmed by statute in some
states; 3 Washb.R.P. *596. Hinman v. Hinman, 4
Conn. 575; Helms v. May, 29 Ga. 124; Wash v. McBrayer, 1 Dana, Ky., 566; Bush v. Cooper, 26 Miss.
599, 59 Am.Dec. 270. But in other states, such a
purchase is valid. Fetrow v. Merriwether, 53 Ill.
279; Hall's Lessee v. Ashby, 9 Ohio, 96, 34 Am.
Dec. 424.
See, also, Bracery.
BY. Before a certain time, Rankin v. Woodworth,
3 Pen. & W., Pa., 48. Beside. Close to. In. In
close proximity. In consequence of. Not later
than a certain time, Fanta v. Maddex, 80 Cal.App.
513, 252 P. 630, 633; Scheuer & Tiego v. Benedict,
173 Wis. 241, 181 N.W. 129, 12 A.L.R. 1166. On or
before a certain time, J. C. Engelman Land Co. v.
La Blanco Agr. Co., Tex.Civ.App., 220 S.W. 653,
655. Through the means, act, agency or instrumentality of, Carroll v. Industrial Commission of
Colorado, 69 Colo. 473, 195 P. 1097, 19 A.L.R. 107;
Stevenson v. Lee Moor Contracting Co., 45 N.M.
354, 115 P.2d 342, 349. To. Under. With. The
word may be used as exclusive, use preceding
signature as indicating signature officially, and not
personally. Pennsylvania Co. for Insurances on
Lives and Granting Annuities v. Wallace, 346 Pa.
532, 31 A.2d 71, 77.
BY AN ACQUITTANCE FOR THE LAST PAYMENT ALL OTHER ARREARAGES ARE DISCHARGED. Noy, 40.
BY-BIDDER. One employed by the seller or his
agent to bid on property with no purpose to become a purchaser, so that bidding thereon may be
stimulated in others who are bidding in good faith.
Osborn v. Apperson Lodge, Free and Accepted
Masons, No. 195, of Louisa, Ky., 213 Ky. 533, 281
S.W. 500, 502, 46 A.L.R. 117.
BY-BIDDING. See Bid.
BY BILL, BY BILL WITHOUT WRIT. In practice. Terms anciently used to designate actions
commenced by original bill, as distinguished from
those commenced by original writ, and applied in
modern practice to suits commenced by capias ad
respondendum. 1 Arch.Pr. pp. 2, 337; 3 Bla.
Comm. 285, 286. See Harkness v. Harkness, 5
Hill, N.Y., 213. The usual course of commencing
an action in the King's Bench was by a bill of
Middlesex. In an action commenced by bill it is
not necessary to notice the form or nature of the
action. 1 Chit.Pl. 283.
BY COLOR OF OFFICE. Acts done "by color of
office" are where they are of such a nature that
office gives no authority to do them. State v.
National Surety Co., 162 Tenn. 547, 39 S.W.2d 581,
583.
BUYING LONG. Purchase of stocks now with
the expectation of selling them for a profit in the
future. Henderson v. Usher, 125 Fla. 709, 170 So.
846, 851.
BY ESTIMATION. In conveyancing. A term
BUYING TITLES. The purchase of the rights or used to indicate that the quantity of land as stated
claims to real estate of a person who is not in
is estimated only, not exactly measured; it has the
251
BY
the same meaning and effect as the phrase "more
or less." Hays v. Hays, 126 Ind. 92, 25 N.E. 600, 11
L.R.A. 376. It is said that the meaning of these
words has never been precisely ascertained by
judicial decision. See Sugden, Vend. 231; Noble v.
Googins, 99 Mass. 234.
BY GOD AND MY COUNTRY. In old English
criminal practice. The established formula of
reply by a prisoner, when arraigned at the bar, to
the question, "Culprit, how wilt thou be tried?"
BY LAW. By statutory law, Board of Education
of Union Free School Dist. No. Six of Town of
Greenburgh v. Town of Greenburgh, 277 N.Y. 193,
13 N.E.2d 768, 770. By state-wide legislation, and
not ordinance, U. S. Fidelity & Guaranty Co. v.
Guenther, C.C.A.Ohio, 31 F.2d 919, 920.
BY-LAW MEN. In English law. The chief men
of a town, representing the inhabitants. In an
ancient deed, certain parties are described as
"yeomen and by-law men." 6 Q.B. 60. They appear to have been men appointed for some purpose of limited authority by the other inhabitants,
under by-laws of the corporation appointing.
BY-LAWS. Regulations, ordinances, rules or laws
adopted by an association or corporation or the
like for its government. The word has also been
used to designate the local laws or municipal
statutes of a city or town. See Kilgour v. Gratto,
224 Mass. 78, 112 N.E. 489, 490. But of late the
tendency is to employ the word "ordinance" exclusively for this class of enactments, reserving
"by-law" for the rules adopted by private corpora.
tions.
In England the term by-law includes any order,
rule or regulation made by any local authority or
statutory corporation subordinate to Parliament;
1 Odgers, C.L. 91.
A resolution is not necessarily a by-law though a by-law
may be in the form of a resolution. Peck v. Elliott, C.C.A.
Tenn., 24 C.C.A. 425, 79 Fed. 10, 38 L.R.A. 616; Bagley v.
Oil Co., 201 Pa. 78, 50 A. 760, 56 L.R.A. 184. Distinction
between a -by-law and a regulation, if any, discussed,
Compton v. Van Volkenburgh, 34 N.J.Law, 135.
BY OPERATION OF LAW. Effected by some
positive legal rule or amendment. Terminals &
Transportation Corporation v. State, 169 Misc.
703, 8 N.Y.S.2d 282, 284.
BY-PASSING. As used in a contract for the construction of a subway, requiring the by-passing of
all gas pipes whose service cannot be temporarily
dispensed with, "by-passing" means the temporary
cutting out of the gas mains under the street and
laying of substituted temporary overhead gas
pipes until all danger in using the original pipes
is passed. Degnon Contracting Co. v. City of New
York, 202 App.Div. 390, 196 N.Y.S. 63, 64.
BY REASON OF. Because of. Freeman v. Bennett, Tex.Civ.App., 195 S.W. 238, 241. By means,
acts, or instrumentality of. State v. Kaufman, 50
S.D. 645, 211 N.W. 691, 692.
BY THE BY (also Bye). Incidentally; without
new process. A term used in former English
practice to denote the method of filing a declaration against a defendant who was already in the
custody of the court at the suit of a different plaintiff or of the same plaintiff in another cause. It
is no longer allowed; Archbold, New Pr. 293.
itY VIRTUE OF. By force of, by authority of, by
reason of. Phillips v. Houston Nat. Bank, Houston, Tex., C.C.A.Tex., 108 F.2d 934, 936. Because
of, through, or in pursuance of. State ex rel. and
to Use of Jasper County v. Gass, 317 Mo. 744,
296 S.W. 431, 432. Money received by an officer by
virtue of his office is money which that officer
received under the law of his office, and not in
violation thereof. Hollingsworth v. State, 73 Fla.
44, 75 So. 612, 614.
BYE-BIL-WUFFA. In Hindu law. A deed of
mortgage or conditional sale.
BYRLAWS. See Burlaws.
BYROAD. The statute law of New Jersey recognizes three different kinds of roads: A public
road, a private road, and a byroad. A byroad is
a road used by the inhabitants, and recognized by
statute, but not laid out. Such roads are often
called "driftways." They are roads of necessity
in newly-settled countries. Van Blarcom v. Frike,
29 N.J.Law, 516. See, also, Stevens v. Allen, 29
N.Y.Law, 68. An obscure or neighborhood road
in its earlier existence, not used to any great extent by the public, yet so far a public road that
the public have of right free access to it at all
times. Wood v. Hurd, 34 N.J.Law, 89.
BYSTANDER. One who stands near; a chance
looker-on; hence one who has no concern with the
business being transacted. Baker v. State, 79 Tex.
Cr.R. 510, 187 S.W. 949, 952; One present but not
taking part, looker-on, spectator, beholder, observer. Music v. De Long, 209 Iowa, 1068, 229 N.
W. 673, 676.
Under statutes relating to summoning of bystanders to
complete jury panel, "bystanders" may be held to mean
qualified talesmen summoned by sheriff from county at
large. Commonwealth v. Sacco, 255 Mass. 369, 151 N.E.
839, 847. The term means qualified electors, not necessarily persons present in court. Bennett v. State, 161 Ark.
496, 257 S. W. 372, 373.
Under statutes authorizing "bystanders" to certify bill
of exceptions, parties to the suit and their attorneys,
Walker v. State, 88 Tex.Cr.R. 389, 227 S. W. 308, 312 ; and
also witnesses in the case, McConnell v. McCord, 170 Ark.
839, 281 S.W. 384, as well as persons not present at the
trial, are not bystanders, Buck v. St. Louis Union Trust
Co., 267 Mo. 644, 185 S.W. 208, 211. Though jurors are
not "bystanders" in the ordinary meaning of that term,
they can sign a bystanders' bill of exceptions to acts and
comments by the court and the argument of attorneys
thereon. Alamo Iron Works v. Prado, Tex.Civ.App., 220
S.W. 282, 29L
252
CABALLARIA
C
C. The third letter of the alphabet.
The letter is used as an abbreviation of many
words of which it is the initial letter, such as
cases, civil, circuit; as a numeral, in like manner
with that use of A and B; and to designate the
third of a series of propositions, sections, etc.
It was used among the Romans to denote condemnation,
being the initial letter of condemno, I condemn. Tayl.
Civil Law, 192.
The initial letter of the word "Codex," used by some
writers in citing the Code of Justinian. Tayl. Civil
Law, 24.
C.—CT.—CTS. These abbreviations stand for
"cent" or "cents," and any one of them, placed at
the top or head of a column of figures, sufficiently
indicates the denomination of the figures below.
Jackson v. Cummings, 15 Ill. 453; Linck v. Litchfield, 141 Ill. 469, 31 N.E. 123.
C. A. B. Civil Aeronautics Board.
C. A. F. Under "c. a. f." provision in sale con-
tract, freight figures substantially only as a part of
the purchase price, not as a reservation of title,
and the situation is similar to a "c. f." contract.
Madeirense Do Brasil S/A v. Stulman-Emrick Lumber Co., C.C.A.N.Y., 147 F.2d 399, 402; cost and
freight allowed to point of destination, being the
equivalent of shipment F. 0. B. from point of
origin. Farris & Co. v. William Schluderberg, T.
J. Kurdle Co., 142 Fla. 765, 196 So. 184.
C. A. V. An abbreviation for
curia advisari vult,
the court will be advised, will consider, will deliberate.
C. B. In reports and legal documents, an abbreviation for common bench. Also an abbreviation for
chief baron.
C. C. Various terms or phrases may be denoted
by this abbreviation; such as circuit court, (or
city or county court;) criminal cases, (or crown
or civil or chancery cases;) civil code; chief commissioner; and cepi corpus, I have taken his body.
C. C.; B. B. I have taken his body; bail bond
entered. See Capias ad Respondendum.
C. C. P. An abbreviation for Code of Civil Procedure; also for court of common pleas.
C. C. & C. I have taken his body and he is held.
C. F. & I. Also written "c. f. i." Letters used in
contracts for cost, freight and insurance, indicating that the price fixed covers not only cost but
freight and insurance to be paid by the seller;
Benj. Sales, § 887; L.R. 8 Ex. 179; 7 H. & N. 574;
Mee v. McNider, 109 N.Y. 500, 502, 17 N.E. 424.
C. I. A. Central Intelligence Agency.
C. I. F. Also written "c. 1. f." These letters in
contracts of sale indicate, as does the expression
253
"c. f. i." or "C. F. & I." (q. v.), that the price
fixed covers the cost of goods, insurance, and
freight. National Wholesale Grocery Co. v. Mann,
251 Mass. 238, 146 N.E. 791, 793; A. Klipstein &
Co. v. Dilsizian, C.C.A.N.Y., 273 F. 473, 475; Columbus Bagging & Tie Co. v. Steel Union Co., 43 Ga.
App. 126, 158 S.E. 459, 460.
C. J. An abbreviation for chief justice; also for
circuit judge.
C. L. An abbreviation for civil law.
C. L. P. Common law procedure, in reference to
the English acts so entitled.
C. 0. D. "Collect on delivery." These letters
i mport the carrier's liability to return to the consignor either the goods or the charges. U. S. Exp.
Co. v. Keefer, 59 Ind. 267; Express Co. v. Wolf, 79
Ill. 434; Danciger v. American Express Co., 192
Mo.App. 172, 179 S.W. 797, 798. The carrier accepts a check instead of cash at its own peril.
Joseph Mogul, Inc., v. C. Lewis Lavine, Inc., 220
App.Div. 287, 221 N.Y.S. 391, 393.
C. P. An abbreviation for common pleas.
C. P. A. Certified Public Accountant.
C. R. An abbreviation for curia regis; also for
chancery reports.
C. S. C. Civil Service Commission.
C. T. A. An abbreviation for cum testamento
annexo, in describing a species of administration.
C. & F. The term "c. & f." means that the sale
price includes in a lump sum "cost" and "freight"
to named destination, and either requires seller
to prepay freight or permits buyer, after having
paid actual charges, to deduct them from the price.
Madeirense Do Brasil S/A v. Stulman-Emrick
Lumber Co., C.C.A.N.Y., 147 F.2d 399, 402.
CA. SA. An abbreviation of capias ad satisfacien-
v.
CABAL. A small association for the purpose of
dum, q.
intrigue; an intrigue. This name was given to
that ministry in the reign of Charles IL formed
by Clifford, Ashley, Buckingham, Arlington, and
Lauderdale, who concerted a scheme for the restoration of popery. The initials of these five names
form the word "cabal;" hence the appellation.
Hume, Hist.Eng. ix. 69.
CABALIST. In French commercial law. A factor
or broker.
CABALLARIA. Pertaining to a horse. It was a
feudal tenure of lands, the tenant furnishing a
horseman suitably equipped in time of war, or
when the lord had occasion for his service.
CABALLERIA
CABALLERIA. In Spanish law. An allotment
of land acquired by conquest, to a horse soldier.
A quantity of land, varying in extent in different
provinces. In those parts of the United States
which formerly belonged to Spain, it is a lot of
one hundred feet front, two hundred feet depth,
and equivalent to five peonias. 2 White, New
Recop. 49; Strother v. Lucas, 12 Pet. 444, 9 L.Ed.
1137, note; Escriche, Dicc. Raz.
CABALLERO. In Spanish law. A knight. So
called on account of its being more honorable to
go on horseback (ec caballo) than on any other
beast.
CABANA. Cabin or small house. Godson v.
Town of Surfside, 150 Fla. 614, 8 So.2d 497, 500.
by a secretary of state, authorizing the imprisonment of a person. Abolished during the revolution of 1789. See Lettres de Cachet.
CACICAZGOS. In Spanish-American law. Property entailed on the caciques, or heads of Indian
villages, and their descendants. Schm.Civil Law,
309.
CADASTRE. Sp. An official statement of the
quantity and value of real property in any district, made for the purpose of justly apportioning
the taxes payable on such property. Strother, v.
Lucas, 12 Pet. 410, 428, note, 9 L.Ed. 1137.
CADASTU. In French law. An official statement
of the quantity and value of realty made for purposes of taxation; same as cadastre, (q. v.).
CABARET. A room where musical entertainment
is permitted in connection with restaurant business. People v. Liquorman, 171 Misc. 535, 13 N.
Y.S.2d 410, 411.
CABINET. The advisory board or council of a
king or other chief executive. The select or secret
council of a prince or executive government; so
called from the apartment in which it was originally held. Webster
CADAVER. A dead human body; a corpse.
Cadaver nullius in bonis, no one can have a right
of property in a corpse. 3 Co.Inst. 110, 2 Bl.
Comm. 429; Griffith v. Railroad Co., 23 S.C. 32,
55 Am.Rep. 1.
CABINET COUNCIL. In English law. A private
and confidential assembly of the most considerable
ministers of state, to concert measures for the administration of public affairs; first established by
Charles I. Wharton.
CABLE. A large and strong rope or chain. An
assembly of wires held together in some way.
Triangle Conduit & Cable Co. v. National Electric
Products Corporation, D.C.Del., 56 F.Supp. 979,
981.
CADERE. Lat. To end; cease; fail; as in
phrases such as cadit actio, (or breve,) the action
(or writ) fails; cadit assisa, the assise abates;
cadit qucestio, the discussion ends, there is no room
for further argument; cadere ab actione (literally, to fall from an action), to fail in an action;
cadere in partem, to become subject to a division.
To be changed; to become; to be turned into.
Cadit assisa in juratum, the assise is changed
into a jury. Calvinus, Lex.
CADET. Students in the military academy at
West Point are styled "cadets;" students in the
naval academy at Annapolis, "cadet midshipmen."
In England. A younger brother; the younger
son of a gentleman; particularly applied to a volunteer in the army, waiting for some post. Jacob.
The term "cable railroad" in a city charter has been
held to imply street railroads. City of Denver v. Mercantile Trust Co. of New York, C.C.A.Colo., 201 F. 790, 802.
CABLE TRANSFER. A credit for a sum of money payable at the place indicated. Oshinsky v.
Taylor, Sup., 172 N.Y.S. 231, 232.
CABLISH. Brush-wood, or more properly windfall-wood.
CABOOSE CAR. A car attached to the rear of a
freight train, fitted up for the accommodation of
the conductor, brakeman, and chance passengers.
Mammoth Cave R. Co. v. Commonwealth, 176 Ky.
747, 197 S.W. 406, 407.
CABOTAGE. A nautical term from the Spanish,
denoting strictly navigation from cape to cape
along the coast without going out into the open
sea. In International Law, cabotage is identified
with coasting-trade so that it means navigating
and trading along the coast between the ports
thereof.
CACHEPOLUS, or CACHERELLAS. An inferior
bailiff, or catchpoll. Jacob.
CADAVEROUS. Pale, wan or ghastly appearance. Commonwealth v. Caldutte, 136 Pa.Super.
52, 7 A.2d 121, 123.
CAD!. A Turkish civil magistrate.
CADIT. Lat. It falls, abates, fails, ends, ceases.
See Cadere.
CADUCA. In the civil law. Property of an inheritable quality; property such as descends to
an heir. Also the lapse of a testamentary disposition or legacy. Also an escheat; escheated property.
CADUCARY. Relating to or of the nature of
escheat, forfeiture, or confiscation. 2 Bl.Comm.
245.
CIEDUA. In the civil and old common law. Kept
for cutting; intended or used to be cut. A term
applied to wood.
CAESAR. In the Roman law. A cognomen in the
Gens Julia, which was assumed by the successors
of Julius. Tayl. Civil Law, 31.
CAESAREAN (also spelled Caesarian) OPERATION. A surgical operation whereby the foetus is
CACHET, LETTRES DE. Letters issued and
signed by the kings of France, and countersigned
254
CALENDAR
taken from the mother, with a view to save the
lives of both, or either of them. Wharton.
Lat. Dict. Also, an ancient Greek measure of
length of 10 feet. Cent. Dict.
CZETERUS. Lat. Other; another; the rest.
CALCETUM, CALCEA. A causeway, or common
hard-way, maintained and repaired with stones
and rubbish.
CJETERIS PARIBUS. Other things being equal.
CAETERIS TACENTIBUS. The others being silent; the other judges expressing no opinion.
Comb. 186.
CIETERORUM. When a limited administration
has been granted, and all the property cannot be
administered under it, administration cceterorum
(as to the residue) may be granted.
CAFE. A place where meals and drinks are
served to the public generally or to selected portions of the public. In re Bowers, D.C.Cal., 33 F.
Supp. 965, 966.
The word as ordinarily and popularly used means a restaurant or house for refreshments. Proprietors' Realty Co.
v. Wohltmann, 95 N.J.Law, 303, 112 A. 410. The terms
"restaurant" and "café" are substantially synonymous.
State v. Shoaf, 179 N.C. 744, 102 S.E. 705, 9 A.L.R. 426.
CARTER. In old French law. A list of grievances
prepared for deputies in the states-general. A petition for the redress of grievances enumerated.
CAHOOTS. Partnership, teaming up, or combining efforts. City of Abilene v. Luhn, Tex.Civ.App.,
65 S.W.2d 370, 371.
CAIN, or CANE. In Scotch law. Rent paid In
kind, as in poultry, eggs, etc.; hence, any tax,
tribute, or duty. Cent. Dict.
CAIRNS' ACT. An English statute for enabling
the court of chancery to award damages. 21 & 22
Vict. c. 27. Repealed as having been superseded
by the Judicature Act of 1873.
CAISSON DISEASE. A dizziness accompanied
with partial paralysis of the limbs, caused by too
rapid reduction of air pressure to which men have
been accustomed. Williams v. Missouri Bridge &
Iron Co., 212 Mich. 150, 180 N.W. 357, 358. A condition caused by excessive air pressure wherein
gas emboli or bubbles in the tissues of the body
may induce severe pain and paralysis, Cannella v.
Gulf Refining Co. of Louisiana, La.App., 154 So.
406, 413.
CALABOOSE. A term used vulgarly, and occasionally in judicial proceedings and law reports, to
designate a jail or prison, particularly a town or
city jail or lock-up. Supposed to be a corruption
of the Spanish calabozo, a dungeon. See Gilham
v. Wells, 64 Ga. 194.
CALAMITY. A state of deep distress or misfortune, produced by some adverse circumstance or
event; misery; any great misfortune or cause of
loss or misery; usually an event or disaster that
produces extensive evil. City of Muskegon Heights
v. Danigelis, 253 Mich. 260, 235 N.W. 83, 84, 73
A.L.R. 696.
CALCULATE. To compute mathematically; in its
broader significance, to intend, to purpose, or to
design. State v. Smith, 57 Mont. 349, 188 P. 644,
648.
CALCULATED. An act may produce a certain
effect, whether intended or not; fitted, adapted,
or suited. Polly v. People, 107 Colo. 6, 108 P.2d
220, 223. Likely or intended. State v. Wyman, 56
Mont. 600, 186 P. 1, 5; Pouchan v. Godeau, 167
Cal. 692, 140 P. 952, 953.
CALE. In old French law. A punishment of
sailors, resembling the modern "keelhauling."
CALEFAGIUM. In old law. A right to take fuel
yearly. Cowell; Blount.
CALENDAR. The established order of the division of time into years, months, weeks, and days;
or a systematized enumeration of such arrangement; an almanac. Rives v. Guthrie, 46 N.C. 86;
Sculley v. Red Lodge-Rosebud Irr. Dist., 83 Mont.
282, 272 P. 543, 552.
Calentar Days
A calendar day contains 24 hours but "calendar
days" may be synonymous with "working days."
Sherwood v. American Sugar Refining Co., C.C.
A.N.Y., 8 F.2d 586, 588. The time from midnight
to midnight, Lanni v. Grimes, 173 Misc. 614, 18 N.
Y.S.2d 322, 327. So many days reckoned according to the course of the calendar.
Calendar Month
One of the months of the year as enumerated in
the calendar. Daley v. Anderson, 7 Wyo. 1, 48 P.
840, 75 Am.St.Rep. 870.
Calendar Week
A block of seven days registered on calendar
beginning with Sunday and ending with Saturday.
Sonoma County v. Sanborn, 1 Cal.App.2d 26, 36
P.2d 419, 422. Term may consist of any seven
days of given month. Sonoma County v. Sanborn,
1 Cal.App.2d 26, 36 P.2d 419, 422.
Calendar Year
The period from January 1 to December 31, inclusive. Byrne v. Bearden, 27 Ga.App. 149, 107 S.
E. 782, 783; Application of Title Guarantee &
Trust Co., 183 Misc. 490, 48 N.Y.S. 374, 375. Ordinarily calendar year means 365 days except leap
year, and is composed of 12 months varying in
length. Shaffner v. Lipinsky, 194 N.C. 1, 138 S.E.
418, 419; United States, for Use of Strona v.
Bussey, D.C.Cal., 51 F.Supp. 996, 999.
"Calendar year preceding election" means year beginning
CALAMUS. Lat. A reed; cane; hence, a reed
January 1 and ending December 31. People v. Milan, 89
pen; reed-pipe; arrow; small rod, etc. Harper,
Colo. 556, 5 P.2d 249, 253.
255
CALENDAR
Calendar of Causes
A list of the causes instituted in the particular
court, and now ready for trial, drawn up before
beginning of the term. It is sometimes called
the "trial list," or "docket."'
Calendar of Prisoners
In English practice. A list kept by the sheriffs
containing the names of all the prisoners in their
custody, with the several judgments against each
in the margin. Staundef.P.C. 182; 4 Bl.Comm.
403.
Special Calendar
A calendar or list of causes, containing those
set down specially for hearing, trial, or argument.
CALENDS. Among the Romans the first day of
every month, being spoken of by itself, or the
very day of the new moon, which usually happen
together. And if pridie, the day before, he added
to it, then it is the last day of the foregoing month,
as pridie calend. Septemb. is the last day of
August. If any number be placed with it, it
signifies that day in the former month which
comes so much before the month named, as
the tenth calends of October is the 20th day of
September; for if one reckons backwards, beginning at October, that 20th day of September
makes the 10th day before October. In March,
May, July, and October, the calends begin at the
sixteenth day, but in other months at the fourteenth; which calends must ever bear the name
of the month following, and be numbered backwards from the first day of the said following
months. Jacob. See Rives v. Guthrie, 46 N.C. 87.
CALENDS, GREEK. A metaphorical expression
for a time never likely to arrive, inasmuch as the
Greeks had no calends.
CALF. As used in an exemption statute, should
be construed to include an animal sucking a cow
that is being milked, even though the animal be
a yearling. Kiggins v. Henne & Meyer Co., Tex.
Civ.App., 199 S.W. 494, 496.
CALICHE ROCK. A substance containing calcium carbonate like that found in ordinary limestone. Board of Com'rs of Roosevelt County v.
Good, 44 N.M. 495, 105 P.2d 470, 472.
CALL, n.
Contract Language
As used in contract, means demand for payment of, especially by formal notice. Keyes v.
Kimmel, 9 N.J.Misc.R. 604, 155 A. 19, 20.
Conveyancing
A visible natural object or landmark designated
in a patent, entry, grant, or other conveyance of
lands, as a limit or boundary to the land described,
with which the points of surveying must correspond. Also the courses and distances designated.
King v. Watkins, C.C.Va., 98 Fed. 922. See, also,
Kentucky Union Co. v. Shepherd, 192 Ky. 447, 234
S.W. 10, 13.
Corporation Law
A demand by directors upon subscribers for
shares for payment of a portion or installment;
in this sense, it is capable of three meanings: (1)
The resolution of the directors to levy the assessment; (2) its notification to the persons liable to
pay; (3) the time when it becomes payable. Railway Co. v. Mitchell, 4 Exch. 543; Hatch v. Dana,
Iii., 101 U.S. 205, 25 L.Ed. 885; Stewart v. Pub. Co.,
1 Wash.St. 521, 20 P. 605.
Although the terms "call" and "assessment" are often
used synonymously, the latter term applies with peculiar
aptness to contributions above the par value of stock or
the subscription liability of the stockholders. Porter v.
Northern Fire & Marine Ins. Co., 36 N.D. 199, 161 N.W.
1012, 1014. See Assessment.
Dealings in Futures
Deposit of more margin. Fenner v. Tucker, 213
N.C. 419, 196 S.E. 357, 359.
Dealings in Securities or Grain
Option or right to demand a certain amount of
securities or grain at a fixed price at or within
certain time agreed on. Colston v. Burnet, 61 App.
D.C. 192, 59 F.2d 867, 868; Dillon, Read & Co. v.
Hoey, D.C.N.Y., 45 F.Supp. 475, 477.
English Law
The election of students to the degree of barrister at law, hence the ceremony or epoch of election, and the number of persons elected.
Mutual Act or Benefit Association Certificate
Official declaration that payment is required or
demand for payment. Pasley v. Brady Mut. Life
Ass'n, Tex.Civ.App., 2 S.W.2d 278, 279.
CALL, v. To summon or demand by name; to
demand the presence and participation of a number of persons by calling aloud their names, either
in a pre-arranged and systematic order or in a
succession determined by chance.
Terms "called" and "sold" as equivalent. In re Gyllstrom's Will, 15 N.Y.S.2d 801, 808, 172 Misc. 655.
Call of the House
A call of the names of members of a legislative
body in pursuance of a resolution requiring attendance of members.
Calling a Summons
In Scotch practice. See this described in Bell,
Dict.
Calling an Election
Commonly construed as including, or as being
synonymous with, the giving of notice of the election. State v. Hall, 73 Or. 231, 144 P. 475, 478;
People v. Gough, 260 Ill. 542, 103 N.E. 685, 686.
Calling the Docket
The public calling of the docket or list of causes
at commencement of term of court for setting a
256
CALVO
time for trial or entering orders of continuance,
default, nonsuit, etc. Blanchard v. Ferdinand, 132
Mass. 391.
Calling the Jury
Successively drawing out of a box the names of
the jurors on the panels annexed to the nisi prius
record, and calling them over in the order in
which they are so drawn.
CALLING. A business, occupation, or trade. Gray
v. Board of County Com'rs of Sedgwick County,
101 Kan. 195, 165 P. 867, 868, L.R.A.1918F, 182.
One's usual occupation, vocation, or business.
Crook v. Commonwealth, 147 Va. 593, 136 S.E. 565,
567, 50 A.L.R. 1043. A profession, Ex parte
Galusha, 184 Cal. 697, 195 P. 406, 407; C. D. Shamburger Lumber Co. v. Delavan, Tex.Civ.App., 106
S.W.2d 351, 355, 356.
Calling the Plaintiff
A formal method of causing a nonsuit to be entered. When a plaintiff or his counsel, seeing that
sufficient evidence has not been given to maintain
the issue, withdraws, the crier is ordered to call
or demand the plaintiff, and if neither he, nor any
person for him appear, he is nonsuited. The
phrase "let the plaintiff be called" is to be explained by reference to this practice. See 3 Bla.
Comm. 376; 2 C. & P. 403; Porter v. Perkins, 5
Mass. 236, 4 Am.Dec. 52.
CALPES. In Scotch law. A gift to the head of a
clan, as an acknowledgment for protection and
maintenance.
CALUMNIA.
In the civil law calumny, malice, or ill design;
a false accusation; a malicious prosecution. Lanning v. Christy, 30 Ohio St. 115, 27 Am.Rep. 431.
In the old common law. A claim, demand,
challenge to jurors.
Calling to Testify
Under certain statutes, when adversary takes
the witness' deposition, Allen v. Pollard, 109 Tex.
536, 212 S.W. 468; Clayton v. Ogden State Bank,
82 Utah 564, 26 P.2d 545, 548; or when he files
interrogatories to the witness stating that his
deposition will be taken in answer thereto, Wyatt
v. Chambers, Tex.Civ.App., 182 S.W. 16, 18.
Calling to the Bar
In English practice. Conferring the dignity or
degree of barrister at law upon a member of one
of the inns of court. Holthouse. "Calls to the
bench and bar are to be made by the most ancient,
being a reader, who is present at supper on call
night." 1 Black Books of Lincoln's Inn. 339.
dum, (q. v.).
CALUMNIZE JUSJURAND1UM. The oath of
(against) calumny. An oath imposed upon the
parties to a suit that they did not sue or defend
with the intention of calumniating, (calumniandi
animo,) e., with a malicious design, but from a
firm belief that they had a good cause. Inst. 4,
16. The object was to prevent vexatious and unnecessary suits. It was especially used in divorce
cases, though of little practical utility; Bish.
Marr. & Div. § 353; 2 Bish.Marr.Div. & Sep. §
264. A somewhat similar provision is to be found
in the requirement made in some states that the
defendant shall file an affidavit of merits.
CALUMNIATOR. In the civil law. One who accused another of a crime without cause; one who
brought a false accusation. Cod. 9, 46.
Calling Upon a Prisoner
When a prisoner has been found guilty on an
indictment, the clerk of the court addresses him
and calls upon him to say why judgment should
not be passed upon him.
CALUMNY. Defamation; slander; false accusation of a crime or offense. See Calumnia.
CALVIN'S CASE. Calvin v. Smith, 7 Rep. 1; 2
S.T. 559, decided in 1608, in which it was held that
persons born in Scotland after the accession of
James I to the crown of England in 1603 were
not aliens but were capable of inheriting land in
England. Wharton.
CALL PATENT. One whose corners are all
stakes, or all but one, or whose lines were not run
out and marked at time. Combs v. Combs, 238
Ky. 362, 38 S.W.2d 243, 244.
CALLABLE. Option to pay before maturity on
call. In re Opinions of the Justices, 231 Ala. 152,
164 So. 572, 578.
CALLABLE BONDS. Bonds which may be called
for payment before their maturity. Fales v. Multnomah County, 119 Or. 127, 248 P. 151, 152.
CALLED UPON TO PAY. Compelled or required
to pay. Taylor v. Coon, 79 Wis. 76, 48 N.W. 123,
128.
CALLERS. Persons employed by a motor carrier
to unload truck or trailer bodies and advise checker of nature of items of freight unloaded. Cream
v. M. Moran Transp. Lines, D.C.N.Y., 57 F.Supp.
212, 216.
Black's Law Dictionary Revised 4th Ed.-17
CALUMNIZE JURAMENTUM. In the old canon
law. An oath similar to the calumnice jusjuran-
CALVO DOCTRINE. The doctrine stated by the
Argentine jurist, Carlos Calvo, that a government
is not bound to indemnify aliens for losses or injuries sustained by them in consequence of domestic disturbances or civil war, where the state is
not at fault, and that therefore foreign states are
not justified in intervening, by force or otherwise,
to secure the settlement of claims of their citizens
on account of such losses or injuries. Such intervention, Calvo says, is not in accordance with the
practice of European States towards one another,
and is contrary to the principle of state sovereignty. 3 Calvo §§ 1280, 1297. The Calvo Doctrine is
to be distinguished from the Drago Doctrine (q.
v.).
257
See 18 Green Bag
377.
CALYPSO
CALYPSO SONG. A song distinguished by a
certain form, rhythm, and narrative style, apparently indigenous to the Island of Trinidad.
Baron v. Leo Feist, Inc., D.C.N.Y., 78 F.Supp. 686,
687.
CAMARA. In Spanish law. A treasury. Las
Partidas, pt. 6, tit. 3, 1, 2.
The exchequer. White, New Recop. b. 3, tit.
8, c. 1.
CAMBELLANUS, or CAMBELLARIUS. A chamberlain. Spelman.
CAMBER. Ship's camber is convex arc of vessel's
deck from side to side. The Indien, C.C.A.Cal., 71
F.2d 752, 757.
CAMBIALE JUS. The law of exchange.
CAMBIATOR. In old English law. An exchanger.
Cambiatores monetcs, exchangers of money; money-changers.
CAMBIO. In Spanish law. Exchange. Schm.
Civil Law, 148.
CAMBIPARTIA. Champerty; from campus, a
field, and partus, divided. Spelman.
CAMBIPARTICEPS. A champertor.
CAMBIST. In mercantile law. A person skilled
in exchanges; one who trades in promissory notes
or bills of exchange; a broker.
CAMBIUM. In the civil law. Change or exchange.
A term applied indifferently to the exchange of
land, money, or debts. Du Cange.
Cambium reale or manuals was the term generally used
to denote the technical common-law exchange of lands;
cambium locale, mercantile, or trajectitium, was used to
designate the modern mercantile contract of exchange,
whereby a man agrees, in consideration of a sum of money
paid him in one place, to pay a like sum in another place.
Poth. de Change, n. 12; Stony, Bills, § 2, et seq.
CAMERA. In old English law. A chamber, room,
or apartment; a judge's chamber; a treasury; a
chest or coffer. Also, a stipend payable from
vassal to lord; an annuity. See In Camera.
CAMINO. In Spanish law. A road or highway.
Las Partidas, pt. 3, tit. 2, 1. 6.
CAMOUFLAGE. The art of disguising or concealing the nature of objects. Palmer v. -Commonwealth, 240 Ky. 175, 41 S.W.2d 936, 938.
CAMP. The ground or spot on which huts, tents,
are erected for shelter; single hut or shelter; to
camp; to encamp; to lodge in a camp. Jones v.
State, 64 Ga.App. 376, 13 S.E.2d 462, 465.
CAMPAIGN. All the things and necessary legal
and factual acts done by a candidate and his adherents to obtain a majority or plurality of the
votes to be cast; running for office, or candidacy
for office. Norris v. United States, C.C.A.Neb., 86
F.2d 379, 382. Any organized effort to promote a
cause or to secure some definite result with any
group of persons. State ex rel. Green v. City of
Cleveland, Ohio App., 33 N.E.2d 35, 36.
CAMPANA. In old European law. A bell. Spelman.
CAMPANA BAJULA. A small handbell used in
the ceremonies of the Romish church; and, among
Protestants, by sextons, parish clerks, and criers.
Cowell.
CAMPANARIUM, CAMPANILE. A belfry, bell
tower, or steeple; a place where bells are hung.
Spelman; Townsh.Pl. 191, 213.
CAMPERTUM. A part of a larger field or ground,
which would otherwise be in gross or in common.
See Champert; Champerty.
CAMPBELL'S (LORD) ACTS. English statutes,
for amending the practice in prosecutions for
libel, 9 & 10 Vict. c. 93; also 6 & 7 Vict. c. 96,
providing for compensation to relatives in the case
of a person having been killed through negligence;
also 20 & 21 Vict. c. 83, in regard to the sale of
obscene books, etc.
CAMPERS. A share; a champertor's share; a
champertous division or sharing of land.
CAMPERTUM. A cornfield; a field of grain.
Blount; Cowell; Jacob; Whishaw.
CAMERA REGIS. In old English law. A chamber of the king; a place of peculiar privileges
especially in a commercial point of view. The
city of London was so called. Year Book, p. 7,
Hen. VI, 27; Burrill, Law Dic.'
CAMPFIGHT. In old English law. The fighting
of two champions or combatants in the field; the
judicial combat, or duellum. 3 Inst. 221.
CAMERA SCACCARII. The old name of the
exchequer chamber.
CAMERALISTICS. The science of finance or public revenue, comprehending the means of raising
and disposing of it.
CAMPUS. (Lat. A field.)
In old European law. An assembly of the people anciently held in the open air, in some plain.
In feudal and old English law. A field, or
plain. The field, ground, or lists marked out for
the combatants in the duellum, or trial by battle.
Burrill, Law Dict.
CAMERARIUS. A chamberlain; a keeper of the
public money; a treasurer. Spelman Gloss. Cambellarius; 1 Perr. & D. 243. Also a bailiff or receiver.
CAMPUS MAIL. The field of May. An anniversary assembly of the Saxons, held on May-day,
when they confederated for the defense of the
kingdom against all its enemies.
CAMERA STELLATA. The star chamber (q. v.).
CAMPUM PARTERE. To divide the land. See
Champerty.
258
CANCELLI
Courts of equity frequently cancel instruments which
have answered the end for which they were created, or
instruments which are void or voidable, ii order to prevent them from being vexatiously used against the person
apparently bound by them. Snell, Eq. 498.
CAMPUS MARTI!. The field of March. See
Champ de Mars.
CAN. As a noun, a contraption in which employees are lowered to the floor of a mine. EaglePicher Mining & Smelting Co. v. Coffey, 186 Okl.
214, 97 P.2d 48, 49.
See Cancellation.
CANCELLARIA. Chancery; the court of chancery. Curia cancellaria is also used in the same
sense. See 4 Bl.Comm. 46; Cowell.
CAN. As a verb, to be enabled by law; to have a
right to, Bailey Realty & Loan Co. v. Bunting, 31
Ala.App. 450, 19 So.2d 607, 608. To put in a can
or cans, to preserve by putting in sealed cans, to
tin, Henry v. Markesan State Bank, C.C.A.Minn.,
68 F.2d 554, 557; is often interpreted as the
equivalent of "may." The Pantorium v. McLaughlin, 116 Neb. 61, 215 N.W. 798, 799. See
Cannot.
CANCELLARII ANGLI)E DIGNITAS EST, UT
SECUNDUS A REGE IN REGNO HABETUR.
The dignity of the chancellor of England is that
he is deemed the second from the sovereign in
the kingdom. 4 Inst. 78.
CANCELLARIUS. A chancellor; a scrivener, or
notary. A janitor, or one who stood at the door
of the court and was accustomed to carry out
the commands of the judges. Du Cange.
CANA. A Spanish measure of length varying (in
different localities) from about five to seven feet.
CANADA. Sp. Valley. Benavides v. State, Tex.
Civ.App., 214 S.W. 568, 572.
CANADIAN JUMPER. A term applied to a
nervous person who jumps when another touches
him, shouting at the same time, or when anything
thrown hits him, or when a loud noise is made.
Goupiel V. Grand Trunk Ry. Co., 94 Vt. 337, 111
A. 346, 347.
CANAL. An artificial ditch or trench in the earth,
for confining water to a defined channel, to be used
for purposes of transportation. See Bishop v.
Seeley, 18 Conn. 394; Hubbard v. Dunne, 276 Ill.
598, 115 N.E. 210, 215; Guinan v. Boston, Cape
Cod & New York Canal Co., C.C.A.N.Y., 1 F.2d
239.
It includes the banks; it has reference to the
excavation or channel as a receptacle for the water; it is an artificial thing. Kennedy v. Indianapolis, 103 U.S. 604, 26 L.Ed. 550. As used in statute
concerning right of way over public lands for
irrigation, it embraces whole project including
reservoir. U. S. v. Big Horn Land & Cattle Co.,
C.C.A.Colo., 17 F.2d 357, 364; Johnson Irr. Co. v.
Ivory, 46 Wyo. 221, 24 P.2d 1053, 1056.
CANCEL. To obliterate; to strike or cross out;
to destroy the effect of an instrument by defacing,
obliterating, expunging, or erasing it; to revoke
or recall. Ellsworth College v. Carleton, 178 Iowa
845, 160 N.W. 222, 223; Reliance Life Ins. Co. v.
Thayer, 84 Okl. 238, 203 P. 190, 192. To annul or
destroy, make void or invalid, or set aside. Irwin
v. State Brokerage Co., 82 Ind.App. 687, 147 N.E.
531, 532; In re Crawford's Will, 80 Misc. 615, 142
N.Y.S. 1032, 1033; Clegg v. Schvaneveldt, 79 Utah
195, 8 P.2d 620, 621. To rescind or abandon.
Pearson v. Brown, 27 Cal.App. 125, 148 P. 956, 958.
To repeal, surrender, or waive. Greib v. Dullea,
66 Cal.App.2d 986, 153 P.2d 581, 590. To terminate.
Schwartz v. Van Winkle, Sup., 47 N.Y.S.2d 264,
265.
The term is sometimes equivalent to "discharge"
or "pay." Auburn City Bank v. Leonard, 40 Barb.,
N.Y., 119; Debes v. Texas Nat. Bank of Beaumont,
Tex.Civ.App., 92 S.W.2d 476, 479.
In early English law, the keeper of the king's seal. In
this sense only, the word chancellor seems to have been
used in the English law; 3 Bla.Comm. 46. See 15 Harv.L.
Rev. 109; 4 Co.Inst. 78; Dugdale Orig. Jur. fol. 34 ; and
generally Selden, Discourses ; Inderwick, King's Peace ; 3
Steph.Com. 346; 1 Poll. & Maitl. 172; 1 Stubbs, Const.
Hist. 381; Campbell, Lives of the Lord Chancellors, vol: 1;
Holdsw. Hist. E. L. ; Pollock, Expans. of C. L.
CANCELLATION. Abandonment of contract.
State ex rel. Pacific Mut. Life Ins. Co. v. Larson,
152 Fla. 729, 12 So.2d 896, 897. Act of crossing
out a writing, Plaut v. Shirley, 200 Ky. 619, 255
S.W. 273, 274; In re Parsons' Will, 119 Misc. 26,
195 N:Y.S. 742, 745; Culp v. First Commercial
Sa y . Bank of Constantine, 288 Mich. 646, 286 N.W.
113, 114; act which manifests an intent to annul
and puts the instrument in condition where its
invalidity appears on its face, In re Akers' Will,
74 App.Div. 461, 77 N.Y.Supp. 643; Baldwin v.
Howell, 45 N.J.Eq. 519, 15 A. 236; In re Tremain's
Will, Surr., 7 N.Y.S.2d 781, 790; Annulment or abrogation, Golden v. Fowler, 26 Ga. 464, Winton
v. Spring, 18 Cal. 455, Sanborn v. Ballonfonte, 98
Cal.App. 482, 277 P. 152, 155; defacement or mutilation of instrument, Worcester Bank & Trust
Co. v. Ellis, 292 Mass. 88, 197 N.E. 637, 639. Reduction by insurer of amount of insurance, Gill
v. Fidelity Phenix Fire Ins. Co., D.C.Ky., 5 F.Supp.
1, 2; Suspension of insurance policy, Federal Land
Bank of Omaha v. Farmers' Mut. Ins. Ass'n of
Adams and Adjoining Counties, 217 Iowa 1098, 253
N.W. 52. Termination, Otterbein v. Babor & Comeau Co., 272 N.Y. 149, 5 N.E.2d 71, 72, 107 A.L.R.
1510; words of revocation written across instrument, In re Semler's Will, 176 Misc. 687, 28 N.Y.
S.2d 390, 392, 393.
Cancellation is properly distinguished from obliteration.
Townshend v. Howard, 86 Me. 285, 29 A. 1077. Spoliation
may amount to a cancellation. Cancellation does not
revoke unless done with that intention. In re Woods' Will,
Sur., 11 N.Y.Supp. 157.
CANCELLATURA. In old English law. A canceling. Bract. 398b.
CANCELLI. The rails or lattice work or balusters inclosing the bar of a court of justice or the
communion table. Also the lines drawn on the
face of a will or other writing, with the intention
of revoking or annulling it.
259
CANDIDATE
CANDIDATE. One who seeks or offers himself,
or is put forward by others, for an office, privilege,
or honor. Starkweather v. Hoss, 126 Or. 630, 270
P. 768, 770; State ex rel. Ranney v. Corey, Ohio
App., 47 N.E.2d 799, 800; it is not necessary that
he should have been nominated. Leonard v. Corn.,
112 Pa. 624, 4 A. 224. A nominee, State ex rel.
Van Schoyck v. Board of Com'rs of Lincoln County, 46 N.M. 472, 131 P.2d 278, 284. Under a presidential primary law, a person receiving the approval s of the required number of petitioners may
be deemed a candidate even contrary to his
wishes. McCamant v. Olcott, 80 Or. 246, 156 P.
1034, 1038, L.R.A.1916E, 706.
CANDLEMAS-DAY. In English law. A festival
appointed by the church to be observed on the
second day of February in every year, in honor
of the purification of the Virgin Mary, being forty
days after her miraculous delivery. At this festival, formerly, the Protestants went, and the
Papists now go, in procession with lighted candles; they also consecrate candles on this day for
the service of the ensuing year. It is the fourth
of the four cross quarter-days of the year. Wharton.
CANE. In Scotch law. The same as cain (q. v.).
CANFARA. In old records. A trial by hot iron,
formerly used in England. Whishaw.
CANNOT. Denotes that one is not able (to do
some act). Southern Pac. Co. v. Frye & Bruhn,
82 Wash. 9, 143 P. 163, 165. But the term is often
equivalent to "shall not." Bragg v. Hatfield, 124
Me. 391, 130 A. 233, 234.
CANON.
A Dignitary of the English Church
A dignitary of the English church, being a prebendary or member of a cathedral chapter. All
members of chapters except deans are now entitled canons, in England. 2 Steph.Comm. 11th ed.
687, n.; 1 Bla.Comm. 382.
A Law, Rule, etc.
A law, rule, or ordinance in general, and of the
church in particular. An ecclesiastical law or statute. A rule of doctrine or discipline. The term
is generally applied to designate the ordinances
of councils and decrees of popes.
the decretals or canonical epistles written by the
pope, or by the pope and cardinals, at the suit of
one or more persons. As the decrees set out the
origin of the canon law, and the rights, dignities,
and decrees of ecclesiastical persons, with their
manner of election, ordination, etc., so the decretals contain the law to be used in the ecclesiastical courts. Jacob. The canon law forms no part
of the law of England, unless it has been brought
into use and acted on there; 11 Q.B. 649. See generally Encyel.Br., sub voce, Canon Law; Maitland,
Canon Law; Jenks' Teutonic Law; 1 Sel. Essays
on Anglo-Amer.Leg.Hist. 46; Ayliffe, Par.Jur.Can.
Ang.; Preface to Burn, Eccl.Law, Tyrwhitt ed.
22; Hale, Civ.L. 26; Bell's Case of a Putative
Marriage, 203; Dict. du Droit Canonique; Stair,
Inst. b. 1, t. 1, 7; 1 Poll. & Maitl. 90.
Canon religiosorum. In ecclesiastical records. A
book wherein the religious of every greater convent had a fair transcript of the rules of their
order, frequently read among them as their local
statutes. Kennett, Gloss.; Cowell.
Canons of construction. The system of fundamental rules and maxims which are recognized as
governing the construction or interpretation of
written instruments. In re Clarke, 174 App.Div.
736, 161 N.Y.S. 484, 487.
Canons of descent. The legal rules by which inheritances are regulated, and according to which.
estates are transmitted by descent from the ancestor to the heir.
Canons of inheritance. The legal rules by which
inheritances are regulated, and according to which
estates are transmitted by descent from the ancestor to the heir. 2 Bl.Comm. 208.
In Civil, Spanish, and Mexican Law an annual
charge or rent; an emphyteutic rent.
In Old English records. A prestation, pension, or
customary payment.
CANONICAL. Pertaining to, or in conformity to,
the canons of the church.
CANONICAL DISABILITY. Incurable physical
impotency or incapacity for copulation. D. v. D.,
Del.Super., 2 Terry 263, 20 A.2d 139, 141.
CANONICAL OBEDIENCE. That duty which a
clergyman owes to the bishop who ordained him,
to the bishop in whose diocese he is beneficed, and
also to the metropolitan of such bishop. Wharton.
CANONICUS. In old English law. A canon.
A System or Aggregation of Correlated Rules
Fleta, lib. 2, c. 69, § 2.
A system or aggregation of correlated rules,
CANONIST. One versed and skilled in the canon
whether of statutory origin or otherwise, relatlaw; a professor of ecclesiastical law.
ing to and governing a particular department of
legal science or a particular branch of the subCANONRY. In English ecclesiastical law. An
stantive law.
ecclesiastical benefice, attaching to the office of
Canon law. A body of ecclesiastical jurisprucanon. Holthouse.
dence. In England, according to Blackstone,
CANT. In the civil law. A method of dividing
there is a kind of national canon law. 1 Bl.
property held in common by two or more joint
Comm. 82. The canon law is contained in two
principal parts,—the decrees or ecclesiastical con- owners. It may be avoided by the consent of
all of those who are interested, in the same manstitutions made by the popes and cardinals; and
260
CAPIAS
CAPACITY. A word having many meanings, dependent on its relationship to the subject-matter.
Campbell v. Cornish, 163 Okl. 213, 22 P.2d 63.
ner that any other contract or agreement may be
avoided. Hayes v. Cuny, 9 Mart.O.S. (La.) 87.
See Licitacion.
It may mean: ability; actual production of an oil well,
Hells v. Ward, D.C.La., 20 F.Supp. 514, 517; an intelligent
perception and understanding of the dispositions made of
property, etc., In re Null's Estate, 302 Pa. 64, 153 A. 137,
139. Qualification; size, space, or compass, strength, power or force, Campbell v. Cornish, 163 Okl. 213, 22 P.2d 63;
sound mind, Chambers v. Winn, Tex.Civ.App., 133 S.W.2d
279, 282; the attribute of persons which enables them to
perform civil or juristic acts. Sargent v. Burdett, 96 Ga.
111, 22 S.E. 667; 2 Com.Dig. 294.
"Capacity to sue" consists in right to come into court,
Braden v. Neal, 132 Kan. 387, 295 P. 678, 680.
"Public capacity" of municipal property is such capacity
as all the people of the state are alike interested in. Board
of Com'rs of Woodward County v. Willett, 49 Okl. 254, 152
P. 365, 366, L.R.A.1916E, 92.
CANTEL, or CANTLE. A lump, or that which is
added above measure; also a piece of anything,
as "cantel of bread," or the like. Blount.
CANTERBURY, ARCHBISHOP OF. In English
ecclesiastical law. The primate of all England;
the chief ecclesiastical dignitary in the church.
His customary privilege is to crown the kings and
queens of England. Has also, by 25 Hen. VIII, c.
21, the power to grant dispensations. Wharton.
CANTRED. A district comprising a hundred villages; a hundred. A term used in Wales in the
same sense as "hundred" is in England. Cowell;
Termes de la Ley.
CAPAX DOLL. Lat. Capable of committing
crime, or capable of criminal intent. The phrase
describes the condition of one who has sufficient
intelligence and comprehension to be held criminally responsible for his deeds.
CANUM. In feudal law. A species of duty or
tribute payable from tenant to lord, usually consisting of produce of the land.
CANVASS. The act of examining and counting
the returns of votes cast at a public election.
Bowler v. Eisenhood, 1 S.Dak. 577, 48 N.W. 136,
12 L.R.A. 705; In re Stewart, 24 App.Div. 201, 48
N.Y.S. 957.
CAPAX NEGOTII. Competent to transact affairs; having business capacity.
CAPE. In English practice. A judicial writ, now
abolished, touching a plea of lands or tenements.
It was divided into cape magnum, or the grand cape,
which lay before appearance to summon the tenant to
answer the default, and also over to the demandant and
cape parvum, or petit cape, after appearance or view
granted, summoning the tenant to answer the default only.
Termes de la Ley; 3 Steph.Comm. 606, note; Fleta, 1. 6,
c. 55, § 40; 2 Wms.Saund. 45 c, d; Rose. Real Act. 165, et
seq. It was called a "cape," from the word with which it
commenced, and a "grand cape" (or cape magnum) to distinguish it from the petit cape, which lay after appearance.
CANVASSER. Any of certain persons, as officers
of a state, county, or district, intrusted with the
duty of examining the returns of votes cast at an
election. See Canvass.
One who, in a given town, city, or county, goes
from house to house in an effort to take orders
for goods; in this sense, to be distinguished from
traveling salesmen. City of El Dorado Springs
v. Highfill, 268 Mo. 501, 188 S.W. 68.
CAPE AD VALENTIAM. A species of cape magnum.
CAP. In mining, a square piece of plank or block
wedged between the top of posts or props and the
roof of the mine. Big Branch Coal Co. v. Wrenchie, 160 Ky. 668, 170 S.W. 14, 16.
CAP BOARD. Board about fourteen inches long
and about four inches wide which is placed on top
of a pillar in mines to prevent pillar from breaking through slate when weight comes against it.
Hall v. Proctor Coal Co., 236 Ky. 813, 34 S.W.2d
425, 426.
CAP OF MAINTENANCE. One of the regalia or
ornaments of state belonging to the sovereigns of
England, before whom it is carried at the coronation and other great solemnities. Caps of maintenance are also carried before the mayors of several cities in England. Enc.Lond.
CAPABLE. Susceptible; competent; qualified;
fitting; possessing legal power or capacity. United States v. Sischo, D.C.Wash., 262 F. 1001, 1005.
Able, fit or adapted for. U. S. v. Sischo, C.C.A.
Wash., 270 F. 958, 961; State v. Wharton, 132 Kan.
409, 295 P. 656, 658. "Capable of contracting" as
meaning legally capable, not mentally capable.
Szwed v. Morris & Co., 187 Mo.App. 510, 174 S.W.
146, 148.
CAPELLA. In old records. A box, cabinet, or
repository in which were preserved the relics of
martyrs. Spelman. A small building in which
relics were preserved; an oratory or chapel. Id.
In old English law. A chapel. Fleta, lib. 5,
c. 12, § 1; Spelman; Cowell.
CAPERS. Vessels of war owned by private persons, and different from ordinary privateers only
in size, being smaller. Beawes, Lex Mere. 230.
CAPIAS. Lat. "That you take." The general
name for several species of writs, the common
characteristic of which is that they require the officer to take the body of the defendant into custody; they are writs of attachment or arrest.
In English practice, the process on an indictment when the person charged is not in custody,
and in cases not otherwise provided for by statute.
4 Steph.Comm. 383.
Capias Ad Audiendum Judicium
A writ issued, in a case of misdemeanor, after
the defendant has appeared and is found guilty,
to bring him to hear judgment if he is not present
when called. 4 Bl.Comm. 368.
261
CAPIAS
Capias Ad Computandum
In the action of account render, after judgment
of quod computet, if the defendant refuses to appear personally before the auditors and make his
account, a writ by this name may issue to compel
him. The writ is now disused. See Thesaurus
Brevium, 38; Coke, Entries, 46, 47, Rastell, Entries, 14 b. 15.
Capias Ad Respondendum
A judicial writ, (usually simply termed a
"capias," and commonly abbreviated to ca.
resp.) by which actions at law were frequently
commenced; and which commands the sheriff to
take the defendant, and him safely keep, so that
he may have his body before the court on a certain day, to answer the plaintiff in the action. 3
Bl.Comm. 282; 1 Tidd, Pr. 128. It notifies defendant to defend suit and procures his arrest
until security for plaintiff's claim is furnished.
Null v. Staiger, 333 Pa. 370, 4 A.2d 883, 885.
Capias Ad Satisfaciendum
A writ of execution, (usually termed, for brevity, a "ca. sa.,") which commands the sheriff to
take the party named, and keep him safely, so
that he may have his body before the court on a
certain day, to satisfy the damages or debt and
damages in certain actions. It deprives the party
taken of his liberty until he makes the satisfaction awarded. 3 Bl.Comm. 414, 415; 2 Tidd, Pr.
993, 1025; Litt. § 504; Co.Litt. 289a; Strong v.
Linn, 5 N.J.Law, 803. As 'a rule it lay in all cases
where a capias ad respondendum lay. It was a
very common form of execution; but its efficiency
has been destroyed by statutes.
Capias Extendi Facias
A writ of execution issuable in England against
a debtor to the crown, which commands the sheriff to "take" or arrest the body, and "cause to be
extended" the lands and goods of the debtor.
Man.Exch.Pr. 5.
Capias in Withernam
A writ, in the nature of a reprisal, which lies for
one whose goods or cattle, taken under a distress,
are removed from the county, so that they cannot
be replevied, commanding the sheriff to seize other goods or cattle of the distrainor of equal value.
Mod. 285. A writ in all respects an execution for
collection of fine. Board of Councilmen of City of
Frankfort v. Rice, 249 Ky. 771, 61 S.W.2d 614, 615.
Capias Utlagatum
( You take the outlaw.) In English practice.
A writ which lies against a person who has been
outlawed in an action, by which the sheriff is
commanded to take him, and keep him in custody until the day of the return, and then present
him to the court, there to be dealt with for his
contempt. Reg.Orig. 138b; 3 Bl.Comm. 284.
CAPIATUR PRO FINE. (Let him be taken for
the fine.) In English practice. A clause inserted
at the end of old judgment records in actions of
debt, where the defendant denied his deed, and
it was found against him upon his false plea, and
the jury were troubled with the trial of it. Cro.
Jac. 64. See Capias pro Fine.
CAPITA. Heads, and, figuratively, entire bodies,
whether of persons or animals. Spelman.
Persons individually considered, without relation to others, (polls ;) as distinguished from
stirpes or stocks of descent. The term in this
sense, making part of the common phrases, in
capita, per capita, is derived from the civil law.
Inst. 3, 1, 6.
CAPITA, PER. By heads; by the poll; as individuals. In the distribution of an intestate's
personalty, the persons legally entitled to take are
said to take per capita, that is, equal shares,
when they claim, each in his own right, as in
equal degree of kindred; in contradistinction to
claiming by right of representation, or per stirpes.
CAPITAL, n. The word may have different meanings when used in different connections. Commissioner of Corporations and Taxation v. Filoon, 310
Mass. 374, 38 N.E.2d 693, 699, 700, 705.
It may mean : actual property or estate, People v.
Com'rs of Taxes, 23 N.Y. 192; State ex rel. Corinne Realty
Co. v. Becker, 320 Mo. 908, 8 S.W.2d 970, 972. Aggregate
of property, Southern Package Corporation v. State Tax
Commission, 195 Miss. 864, 15 So.2d 436; all capital
invested plus surplus or undivided profits, W. A. Gordon
& Co. v. Lines, D.C.La., 25 F.2d 894, 895; amount, or
value, of property up to par value of paid up issued shares
or stated value of no-par shares, Randall v. Bailey, 23
N.Y.S.2d 173, 182; assets, Pace v. Pace Bros. Co., 91 Utah,
149, 63 R2d 590, 591. Capital stock, Security State Bank
v. Breen, 277 N.W. 497, 500, 65 S.D. 640; condemnation
award, In re Wacht's Estate, 32 N.Y.S.2d 871, 903, 904;
contributions by partners, M. & C. Creditors Corporation
v. Pratt, 17 N.Y.S.2d 240, 258, 259, 172 Misc. 695. Dividends
earned before creation of trust, Hubley's Guardian Ad
Litem v. Wolfe, 259 Ky. 574, 82 S.W.2d 830, 834, 101 A.L.R.
1359; dividends received by trustee stockholder in liquidation of corporation, Anderson v. Bean, 272 Mass. 432, 172
N.E. 647, 651, 72 A.L.R. 959; extraordinary dividends paid
on reducing value of stock, In re Sears' Will, 26 N.Y.S.2d
912, 915, 176 Misc. 242. Fund, Civ.Code, art. 148. French
v. Wolf, 181 La. 733, 160 So. 396, Webb v. Armistead,
C.C.Va., 26 F. 70; gain from sale of realty, United States
v. National City Bank of New York, D.C.N.Y., 21 F.Supp.
791, 794; means contributed by share owners, Parkinson
v. State Bank of Millard County, 84 Utah, 278, 35 P.2d 814,
820, 94 A.L.R. 1112; money invested at interest; money
required of partners by agreement, M. & C. Creditors Corporation v. Pratt, 17 N.Y.S.2d 240, 258, 259, 172 Misc. 695;
money which one adventures in an undertaking; paid-up
issued shares of stock, Newfield v. Stieglitz, D.C.N.Y., 47
Capias Pro Fine
(That you take for the fine or in mercy.) Formerly, if the verdict was for the defendant, the
plaintiff was adjudged to be amerced for his
false claim; but, if the verdict was for the plaintiff, then in all actions vi et armis, or where the
defendant, in his pleading, had falsely denied his
own deed, the judgment contained an award of a
capiatur pro fine; and in all other cases the defendant was adjudged to be amerced. The insertion of the misericordia or of the capiatur in the
judgment is now unnecessary. Wharton; 8 Coke,
60; 11 Coke, 43; Co.Litt. 131; 3 Bl.Comm. 398; 5
262
CAPITAL
F.Supp. 885, 886; place where legislative department holds
its sessions and where chief offices of the executive are
located; political and governmental metropolis; preferred
stock received as dividend, Burns v. Hines, 298 Ill.App. 563,
19 N.E.2d 382, 392; principal sum of a fund of money;
proceeds of sale or exchange of capital of trust property,
In re Clarke's Will, 204 Minn. 574, 284 N.W. 876, 879;
property, Putnam v. U. S., C.C.A.Mass., 149 F.2d 721, 726;
repayment of a debt, Philadelphia Nat. Bank v. Rothensies,
D.C.Pa., 43 F.Supp. 923, 925; seat of government; stock
dividends, Gray v. Hemenway, 268 Mass. 515, 168 N.E. 102,
103; subscribed, paid-up capital, Child v. Ogden State
Bank, 81 Utah, 464, 20 P.2d 599, 607, 88 A.L.R. 1284; sum
formed when profits apportioned to building and loan
association shares coalesce with dues paid, In re Sixth
Ward Buildina & Loan Ass'n of Newark, 134 N.J.Eq. 98,
34 A.2d 292, 295; sum total of corporate stock, Haggard v.
Lexington Utilities Co., 260 Ky. 261, 84 S.W.2d 84, 87;
surplus used as capital, Feeders' Supply Co. v. Commissioner of Internal Revenue, C.C.A.8, 31 F.2d 274, 278;
unamortized debt discount and expense, State Tax Commission v. Mississippi Power & Light Co., 194 Miss. 260, 11
So.2d 828, 829.
In political economy, that portion of the produce of
industry existing in a country, which may be made directly
available, either for the support of human existence, or the
facilitating of production.
The term does not embrace temporary loans. Bailey v.
Clark, 21 Wall. 286, 22 L.Ed. 651. But see Bridgewater
Mfg. Co. v. Funkhouser, 115 Va. 476, 79 S.E. 1074, 1075.
Income is the fruit of capital; capital is the source of
income. Carter v. Rector, 88 Okl. 12, 210 P. 1035, 1037.
As to what is moneyed capital in a federal act respecting
state taxation of national bank stock, see First Nat, Bank
v. Chapman, 173 U.S. 214, 19 S.Ct. 407, 43 L.Ed. 669.
CAPITAL, adj. Affecting or relating to the head
or life of a person; entailing the ultimate penalty. Principal; leading; chief; as "capital burgess." 10 Mod. 100.
Capital Assets
All capital invested plus surplus or undivided
profits. Williams v. McGowan, D.C.N.Y., 58 F.
Supp. 692, 694, 695; Assets of a permanent or
fixed nature or employed in carrying on business
or trade. Rathborne v. Collector of Revenue, 196
La. 795, 200 So. 149, 153, 154; goodwill, Williams v.
McGowan, D.C.N.Y., 58 F.Supp. 692, 694, 695, Commissioner of Internal Revenue v. Shapiro, C.C.A.6,
125 F.2d 532, 535, 536; property acquired and held
for profit or investment for more than two years.
Sommers v. Commissioner of Internal Revenue,
C.C.A.10, 63 F.2d 551, 553; title to property held
for profit. Jones' Estate v. Commissioner of Internal Revenue, C.C.A.Tex., 127 F.2d 231, 232.
Capital Case or Crime
One in or for which death penalty may, but
need not necessarily, be inflicted, Lee v. State, 31
Ala.App. 91, 13 So.2d 583, 587.
Capital Expenditure
Cost of construction made with expectation of
existence for an indefinite period, E. W. Edwards
& Son v. Clarke, D.C.N.Y., 29 F.Supp. 671, 672, 673-,
expenditure in nature of an investment for the future, Marin Union Junior College Dist. v. Gwinn,
106 Cal.App. 12, 288 P. 799, 800.
from sale of capital assets in excess of appraisal
values or costs, In re Talbot's Will, 170 Misc. 138,
9 N.Y.S.2d 806, 810.
4
Capital Impairment
Reduction of assets of corporation below aggregate of outstanding shares of capital stock.
Ashman v. Miller, C.C.A.Mich., 101 F.2d 85, 90.
Capital Increase
An increase not attributable to earnings. In re
Lueders' Estate, 337 Pa. 155, 10 A.2d 415, 417.
Capital Investment
Acquisition price of a "capital asset", Commissioner of Internal Revenue v. Rowan Drilling Co.,
C.C.A.Tex., .130 F.2d 62, 64, 65; capital stock, surplus and undivided profits, O'Connor v. Bankers
Trust Co., 159 Misc. 920, 289 N.Y.S. 252, 276; money spent to increase an asset. Peerless Stages v.
Commissioner of Internal Revenue, C.C.A.9, 125
F.2d 869, 871.
Capital Outlay
Money expended in 'acquiring, equipping, and
promoting an enterprise. Rideout v. Eich, 105
Cal.App. 597, 288 P. 450, 454.
Capital Punishment
Punishment of death. Ex parte Herndon, 18
Okl.Cr. 68, 192 P. 820, 19 A.L.R. 804, State v. Johnston, 83 Wash, 1, 144 P. 944, 945.
Capital Recovery
Collection of charged-off bad debt where reserve
account system is used. National Bank of Tulsa
v. Oklahoma Tax Commission, Okl., 145 P.2d 768,
771, 772,
Capital Stock
The term has various meanings.
It may mean : amount fixed by charter to be subscribed
and paid in or secured to be paid in by shareholders. State
ex rel. Corinne Realty Co. v. Becker, 320 Mo. 908, 8 S.W.2d
970, 971. Amount of stock that corporation may issue.
Schwemer v. Fry, 212 Wis. 88, 249 N.W. 62, 90 A.L.R. 308;
amount subscribed, contributed or secured to be paid in.
Haggard v. Lexington Utilities Co., 260 Ky. 261, 84 S.W.
2d 84, 87; Person v. Board of State Tax Com'rs, 184 N.C.
499, 115 S.E. 336, 346; capital, Central Illinois Public
Service Co. v. Swartz, 284 Ill. 108, 119 N.E. 990, 992; Louisville & N. R. Co. v. Bosworth, D.C.Ky., 209 F. 380, 411,
corporate assets or property, Bates v. Daley's Inc., 5 Cal.
App.2d 95, 42 P.2d 706, 709; evidence of rights in property. Southern Package Corporation v. State Tax Commission, 195 Miss. 864, 15 So.2d 436; fund employed in carrying on business or enterprise, Chicago, M., St. P. & P. R.
v. Harmon, 89 Mont. 1, 295 P. 762, 769: liability of the
corporation to its shareholders, after creditors' claims have
been liquidated, Department of Treasury of Indiana v.
Crowder, 214 Ind. 252, 15 N.E.2c1 89, 91; valuation of the
corporation as a business enterprise, Commonwealth v.
Columbia Gas & Electric Corporation, 336 Pa. 209, 8 A.2d
404, 410.
Capital Gains
Capital Stock Tax
Additions to principal, Holcombe v. Ginn, 296
Tax on privilege of doing business, Wisconsin
Mass. 415, 6 N.E.2d 351, 108 A.L.R. 1134; gains
Cent. Ry. Co. v. U. S., Ct.C1., 41 F.2d 870, 885.
263
CAPITAL
Capital Surplus
Property paid into corporation by shareholders
in excess of capital stock liability. Commissioner
of Corporations and Taxation v. Filoon, 310 Mass.
374, 38 N.E.2d 693, 699, 700.
CAPITALE. A thing which is stolen, or the value
of it. Blount.
CAPITALE VIVENS. Live cattle. Blount.
CAPITALIS. In old English law. Chief ; principal; at the head. A term applied to persons,
places, judicial proceedings, and some kinds of
property.
CAPITALIS BARO. In old English law. Chief
baron. Capitalis baro scaccarii domini, regis, chief
baron of the exchequer. Townsh.Pl. 211.
CAPITAL'S CUSTOS. Chief warden or magistrate; mayor. Fleta, lib. 2, c. 64, § 2.
CAPITAL'S DEBITOR. The chief or principal
debtor, as distinguished from a surety, (plegius.)
CAPITALIS DOMINUS. Chief lord. Fleta, lib.
1, c. 12, § 4; Id. c. 28, § 5.
CAPITALIS JUSTICIARIUS. The chief justiciary; the principal minister of state, and guardian
of the realm in the king's absence.
This office originated under William the Conqueror ;
but its power was greatly diminished by Magna Charta,
and finally distributed among several courts by Edward I.
Spelman; 3 BI.Comm. 38.
CAPITALIS JUSTICIARIUS AD PLACITA CORAM REGE TENENDA. Chief justice for holding
pleas before the king. The title of the chief justice of the king's bench, first assumed in the latter part of the reign of Henry III. 2 Reeve, Eng.
Law, 91, 285.
CAPITALIS JUSTICIARIUS BANCI. Chief justice of the bench. The title of the chief justice
of the (now) court of common pleas, first mentioned in the first year of Edward I. 2 Reeve,
Eng.Law, 48.
CAPITALIS JUSTICIARIUS TOTIUS ANGLIIE.
Chief justice of all England. The title of the
presiding justice in the court of aula regis. 3
Bl.Comm. 38; 1 Reeve, Eng.Law, 48.
CAPITALIS PLEGIUS. A chief pledge; a head
borough. Townsh.P1. 35.
CAPITALIS REDITUS. A chief rent.
CAPITAL'S TERRA. A head-land. A piece of
land lying at the head of other land.
CAPITALIZATION METHOD. A method of
measuring values of realty for purpose of determining values of mortgages by expertly estimating the gross income which property should throw
off, and separately the expenses reasonably required to carry it, and thus arriving at a fair estimate of net income and using a capitalization
figure or factor, expertly chosen. Depreciation
must be taken into consideration in use of such
method. In re New York Title & Mortgage Co.
(Series B-K), 21 N.Y.S.2d 575, 594, 595.
CAPITALIZE. In one sense, to convert a periodical payment into a sum in hand. Brown v. Erie
R. Co., 87 N.J.Law, 487, 91 A. 1023, 1026, Ann.Cas.
1917C, 496.
CAPITANEUS. A tenant in capite. He who held
his land or title directly from the king himself.
A captain; a naval commander. This latter use
began A. D. 1264. Spelman, Gloss. Capitaneus,
Admiralius. A commander or ruler over others,
either in civil, military, or ecclesiastical matters.
CAPITARE. In old law and surveys. To head,
front, or abut; to touch at the head, or end.
CAPITATIM. Lat. By the head; by the poll;
severally to each individual.
CAPITATION TAX. A poll tax. A tax or imposition upon the person. Leedy v. Bourbon, 12 Ind.
App. 486, 40 N.E. 640; Hattiesburg Grocery Co.
v. Robertson, 126 Miss. 34, 88 So. 4, 5, 25 A.L.R.
748. It is a very ancient kind of tribute, and answers to what the Latins called "tributum," by
which taxes on persons are distinguished from
taxes on merchandise, called "vectigalia." Wharton.
CAPITE. Lat. By the head.
Tenure in capite was an ancient feudal tenure, whereby
a man held lands of the king immediately. It was of two
sorts,—the one, principal and general, or of the king as
the source of all tenure ; the other, special and subaltern,
or of a particular subject. It is now abolished. Jacob.
As to distribution per capita, see Capita, per.
CAPITE MINUTUS. In the civil law. One who
had suffered capitis diminutio, one who lost status
or legal attributes. See Dig. 4, 5.
CAPITIS DIMINUTIO. In Roman law. A diminishing or abridgment of personality; a loss or curtailment of a man's status or aggregate of legal
attributes and qualifications.
CAPITIS DIMINUTIO MAXIMA. The highest
or most comprehensive loss of status. This occurred when a man's condition was changed from
one of freedom to one of bondage, when he became a slave. It swept away with it all rights of
citizenship and all family rights.
CAPITALIST. One exclusively dependent on accumulated property, whether denoting a person
of large wealth or one having an income from inCAPITIS DIMINUTIO MEDIA. A lesser or medivestments. Elliott v. Frankfort Marine, Accident
um loss of status. This occurred where a man
& Plate Glass Ins. Co. of Frankfort-on-the-Main,
lost his rights of citizenship, but without losing
Germany, 172 Cal. 261, 156 P. 481, 483, L.R.A.
his liberty. It carried away also the family rights.
1916F, 1026. The word has no legal meaning.
CAPITIS DIMINUTIO MINIMA. The lowest or
In re Green's Estate, 109 Misc. 112, 178 N.Y.S. 353,
least comprehensive degree of loss of status. This
361.
264
CAPTATOR
occurred where a man's family relations alone
were changed. It happened upon the arrogation
of a person who had been his own master, (sui
juris,) or upon the emancipation of one who had
been under the patria potestas. It left the rights
of liberty and citizenship unaltered. See Inst. 1,
16, pr.; 1, 2, 3; Dig. 4, 5, 11; Mackeld.Rom.Law,
§ 144.
CAPITITIUM. A covering for the head, mentioned in St. 1 Hen. IV. and other old statutes,
which prescribe what dresses shall be worn by all
degrees of persons. Jacob.
CAPITULA. Collections of laws and ordinances
drawn up under heads of divisions. Spelman.
The term is used in the civil and old English law,
and applies to the ecclesiastical law also, meaning
chapters or assemblies of ecclesiastical persons.
Du Cange. The Royal and Imperial Capitula
were the edicts of the Frankish Kings and Emperors.
of the places where they dwelt. 1 Kinglake, Invasion of Crimea 116.
"The 'usages of the Franks' begin In what are known in
international law as 'the capitulations,' granting rights of
exterritoriality to Christians residing or traveling in Mohammedan countries. * * * By these * * * capitulations a usage was established that Franks [a generic name
for all participants in such privileges], being in Turkey,
whether domiciled or temporarily, should be under the jurisdiction, civil and criminal, of their respective ministers
and consuls." Dainese v. United States, 15 Ct.C1. 64.
In the civil law. An agreement by which the
prince and the people, or those who have the right
of the people, regulate the manner in which the
government is to be administered. Wolffius, §
989.
CAPITULI AGRI. Head-fields; lands lying at
the head or upper end of furrows, etc.
CAPITULUM. Lat. A leading division of a book
or writing; a chapter; a section. Tert.Adv.Jud.
9, 19. Abbreviated, Cap.
CAPITULA CORONAE. Chapters of the crown.
Chapters or heads of inquiry, resembling the capitula itineris (infra) but of a more minute character.
CAPITULUM EST CLERICORUM CONGREGATIO SUB UNO DECANO IN ECCLESIA CATHEDRAL'. A chapter is a congregation of clergy
under one dean in a cathedral church. Co.Litt. 98.
CAPITULA DE JUDIE'S. A register of mortgages made to the Jews. 2 Bl.Comm. 343; Crabb,
Eng.Law, 130, et seq.
CAPPA. In old records. A cap. Cappa honoris,
the cap of honor. One of the solemnities or ceremonies of creating an earl or marquis.
CAPITULA ITINERIS. Articles of inquiry which
were anciently delivered to the justices in eyre
when they set out on their circuits. These schedules were designed to include all possible varieties
of crime. 2 Reeve, Eng.Law, p. 4, c. 8.
CAPPER. A decoy or lure for purpose of swindling. Barron v. Board of Dental Examiners of
California, 109 Cal.App. 382, 293 P. 144, 145.
CAPITULA RURALIA. Assemblies or chapters,
held by rural deans and parochial clergy, within
the precinct of every deanery; which at first were
every three weeks, afterwards once a month, and
subsequently once a quarter. Cowell.
CAPITULARY. In French law. A collection and
code of the laws and ordinances promulgated by
the kings of the Merovingian and Carlovingian
dynasties.
Any orderly and systematic collection or code
of laws.
In ecclesiastical law. A collection of laws and
ordinances orderly arranged by divisions. A book
containing the beginning and end of each Gospel
which is to be read every day in the ceremony of
saying mass. Du Cange.
CAPITULATION. In military law. The surrender of a fort, fortified town, or army in the field to
a besieging or opposing army; the treaty or
agreement between the commanding officers
which embodies the terms and conditions on which
the surrender is made.
In international law. Capitulations is the name
used for treaty engagements between the Turkish
government and the principal states of Europe by
which subjects of the latter, residents in the territory of the former, were exempt from the laws
CAPRICIOUS DISBELIEF. A willful, deliberate
disbelief of an apparently trustworthy witness.
Popilock v. Piernikoski, 161 Pa.Super. 587, 56 A.
2d 326, 328.
CAPTAIN. A head-man; commander; commanding officer.
The captain of a war-vessel is the officer first In command. In the United States navy, the rank of "captain"
is intermediate between that of "commander" and "commodore." The governor or controlling officer of a vessel
in the merchant service is usually styled "captain" by the
inferior officers and seamen, but in maritime business and
admiralty law is perhaps more commonly designated as
"master." In foreign jurisprudence his title is often that
of "patron." In the United States army (and the militia)
the captain is the commander of a company of soldiers,
one of the divisions of a regiment. The term is also used
to designate the commander of a squad of municipal police.
The "captain of the watch" on a vessel is a kind of foreman or overseer and is an officer within statutes regulating
conduct of officers to seamen. U. S. v. Trice, D.C.Tenn.,
30 Fed. 491.
CAPTATION. In French law. The act of one
who succeeds in controlling the will of another, so
as to become master of it; used in an invidious
sense. Succession of Schlumbrecht, 138 La. 173,
70 So. 76, 79.
It Was formerly applied to the first stage of the
hypnotic or mesmeric trance.
CAPTATOR. A person who obtains a gift or legacy through artifice. See Captation.
265
CAPTIO
CAPTIO. In old English law and practice. A
taking or seizure; arrest; receiving; holding of
court.
The sequestering of alien enemy property under vesting
orders by the alien property custodian is in the nature of
a "capture". Crowley v. Allen, D.C.Cal., 52 F.Supp. 850,
852.
CAPTION. In Practice. That part of a legal
instrument, as a commission, indictment, etc.,
which shows where, when, and by what authority
it is taken, found, or executed. U. S. v. Beebe, 2
Dak, 292, 11 N.W. 505.
CAPUT. A head; the head of a person; the
whole person; the life of a person; one's personality; status; civil condition.
At common law. A head. Caput comitatis,
the head of the county; the sheriff; the king.
Spelman. A person; a life. The upper part of
a town. Cowell. A castle. Spelman.
Capitis aestimatio. In Saxon law. The estimation or value of the head, that is, the price or
value of a man's life.
Caput anni. The first day (or beginning) of the
year.
Caput baronim. The castle or chief seat of a
baron.
Caput jejunii. The beginning of the Lent fast,
e., Ash Wednesday.
Caput loci. The head or upper part of a place.
Caput lupinum. In old English law. A wolf's
head. An outlawed felon was said to be caput
lupinum, and might be knocked on the head like
a wolf. 4 Bla.Comm. 320, 284.
Caput mortuum. A dead head; dead; obsolete.
Caput portus. In old English law. The head of a
port. The town to which a port belongs, and
which gives the denomination to the port, and is
the head of it. Hale de Jure Mar. pt. 2, (de portubus maris,) c. 2.
Caput, principium, et finis. The head, beginning,
and end. A term applied in English law to the
king, as head of parliament. 4 Inst. 3; 1 Bl.
Comm. 188.
In civil law. It signified a person's civil condition
or status, and among the Romans consisted of
three component parts or elements,—libertas, liberty; civitas, citizenship; and familia, family.
When used with reference to an indictment, • caption
signifies the style or preamble or commencement of the indictment; when used with reference to a commission, it
signifies the certificate to which the commissioners' names
are subscribed, declaring when and where it was executed.
Brown. The caption is not a part of the indictment,
Brown v. Hudspeth, C.C.A.Kan., 103 F.2d 958, 959, but is
the formal history of its finding, and is to be distinguished
from the introductory portion. Harrington v. U. S., C.C.A.
Iowa, 267 F. 97, 100. Caption of indictment is entry of record showing when and where court is held, who presided,
venire and indorsements, and who were summoned and
sworn as grand jurors. Williams v. State, 20 Ala.App. 26,
100 So. 573, 574.
The caption of a pleading, deposition, or other paper
connected with a case in court, is the heading or introductory clause which shows the names of the parties, name
of the court, number of the case on the docket or calendar,
etc. Quoted with approval in St. Louis Lightning Rod Co.
v. Johnson, 18 Ga.App. 190, 89 S.E. 169, 170. The terms
"title" and "caption" are synonymous. Id. The caption
of depositions should state the title of the cause, the names
of the parties, and at whose instance the depositions are
taken ; Knight v. Nichols, 34 Me. 208. See Waskern v.
Diamond, 1 Hemp. 701, Fed.Cas.No.17,248. Generally, the
title or caption is not part of the pleading, unless expressly made so by reference in the body thereof. Jackson v.
Ashton, 8 Pet. 148, 8 L.Ed. 898.
Also signifies a taking, seizure, or arrest of a person. 2
Salk. 498. The word in this sense is now obsolete in
English law.
In Scotch law. Caption is an order to incarcerate a debtor who has disobeyed an order, given
to him by what are called "letters of horning,"
to pay a debt or to perform some act enjoined
thereby. Bell.
CAPTIVES. Prisoners of war. As in the goods of
an enemy, so also in his person, a sort of qualified
property may be acquired, by taking him a prisoner of war, at least till his ransom be paid. 2
Al.Comm. 402.
CAPTOR. In international law. One who takes
or seizes property in time of war; one who takes
the property of an enemy. In a stricter sense,
one who takes a prize at sea. 2 Bl.Comm. 401;
1 Kent, Comm. 86, 96, 103. Consult Oakes v. U. S.,
174 U.S. 778, 19 S.Ct. 864, 43 L.Ed. 1169. The term
also designates a belligerent who has captured the
person of an enemy.
CAPTURE. In international law. The taking or
wresting of property from one of two belligerents
by the other. Also a taking of property by a belligerent from an offending neutral.
In some cases, this is a mode of acquiring property. Thus every one may, as a general rule, on
his own land, or on the sea, capture any wild animal, and acquire a qualified ownership in it by
confining it, or absolute ownership by killing it.
2 Steph.Comm. 79.
Capture, in technical language, is a taking by military
power; a seizure is a taking by civil authority. U. S. v.
Athens Armory, 35 Ga. 344, Fed.Cas.No.14,473.
CAPUTAGIUM. In old English law. Head or poll
money, or the payment of it. Cowell; Blount;
Spelman, Gloss.
CAPUTIUM. In old English law. A head of land;
a headland. Cowell.
CAR. A vehicle primarily intended for transportation of persons or freight, Hall v. Federal Life
Ins. Co., Mo.App., 71 S.W.2d 762, 764; a vehicle
moved on wheels, Burrus v. Continental Life Ins.
Co., 225 Mo.App. 1129, 40 S.W.2d 493, 494.
The term may include a vehicle adapted to running on
the rails of a railroad. State v. Tardiff, 111 Me. 552, 90 A.
424, 425, L.R.A.1915A, 817; a hand car, Boyd v. Missouri
Pac. Ry. Co., 249 Mo. 110, 155 S.W. 13, 17, Ann.Cas.1914D,
37; a locomotive, U. S. v. Philadelphia & R. Ry. Co., D.C.
Pa., 223 F. 215, 216; a tender and locomotive, Pennell v.
Philadelphia & Reading Railway Co., 231 U.S. 675, 34 S.Ct.
220, 58 L.Ed. 430; an automobile. Monroe's Adm'r v. Federal Union Life Ins. Co., 251 Ky. 570, 65 S.W.2d 680, 681.
Car Load
The quantity usually contained in an ordinary
car used for transporting the particular commodi-
266
CARE
ty involved. Ward v. Cotton Seed Products Co.,
193 Ala. 101, 69 So. 514, 515.
c. 53, part. iv. liv. i. cc. 79, 80; Loiseau, Traite
des Ordres, c. 3, n. 31; Andre Droit Canon.
General Service Cars
Cars serviceable as flat or gondola cars and also
as dump cars. National Dump Car Co. v. Pullman
Co., C.C.A.Ill., 228 F. 122, 124.
CARDS. In criminal law. Small papers or pasteboards of an oblong or rectangular shape, on
which are printed figures or points, used in playing certain games. See State v. Lewis, 12 Wis.
434.
CAR TRUST CERTIFICATES, OR SECURITIES.
A class of investment securities based upon the
conditional sale or hire of railroad cars or locomotives with a reservation of title or lien in the vendor or bailor until the property is paid for. See
Fidelity Trust Co. v. Lederer, D.C.Pa., 276 F. 51;
Commonwealth v. Philadelphia Rapid Transit Co.,
287 Pa. 190, 134 A. 455.
CARE. Attention, Seaman v. State, 106 Ohio St.
177, 140 N.E. 108, 111, Lustenberger v. Boston Casualty Co., Mass., 14 N.E.2d 148, 151, 115 A.L.R.
1055; charge, Emery v. Wheeler, 152 A. 624, 626,
129 Me. 428, Lustenberger v. Boston Casualty Co.,
Mass., 14 N.E.2d 148, 151, 115 A.L.R. 1055; custody,
Madison v. State, 163 Tenn. 198, 42 S.W.2d 209, Fox
West Coast Theatres v. Union Indemnity Co., 167
Wash. 319, 9 P.2d 78, 81; diligence; discretion;
heed, caution, concern, Northern Indiana Power
Co. v. West, 218 Ind. 321, 32 N.E.2d 713, 720; inclination, wish or disposition, Stella v. Downyflake Restaurant, 126 Conn. 441, 11 A.2d 848, 849;
maintenance, Stafford v. Stovall, 109 Okl. 234, 235
P. 238, 239; management, Seaman v. State, 106
Ohio St. 177, 140 N.E. 108, 111; opposite of negligence or carelessness, Raymond v. Portland R.
Co., 100 Me. 529, 62 A. 602, 605, 3 L.R.A.,N.S., 94;
oversight, Emery v. Wheeler, 129 Me. 428, 152 A.
624, 626, Madison v. State, 163 Tenn. 198, 42 S.W.2d
209; prudence, Quanah, A. & P. Ry. Co. v. Eblen,
Tex.Civ.App., 55 S.W.2d 1060, 1063; regard, Lustenberger v. Boston Casualty Co., Mass., 14 N.E.2d
148, 151, 115 A.L.R. 1055, Arnold v. United States,
C.C.A.Colo., 94 F.2d 499, 505; safekeeping, preservation, security, Fox West Coast Theatres v.
Union Indemnity Co., 167 Wash. 319, 9 P.2d 78, 81;
to cause to have care; to trouble; to care for;
to regard. Arnold v. United States, C.C.A.Colo.,
94 F.2d 499, 505; vigilance; watchfulness.
CARABUS. In old English law. A kind of raft
or boat. Spelman.
CARAT. A measure of weight for diamonds and
other precious stones, equivalent to three and onesixth grains Troy, though divided by jewelers into
four parts called "diamond grains." Also a standard of fineness of gold, twenty-four carats being
conventionally taken as expressing absolute purity, and the proportion of gold to alloy in a mixture being represented as so many carats.
CARBON COPY. A copy, as of a letter, produced
by placing a sheet of carbon paper between two
sheets of letter paper, so that the same impression produces both the letter and the carbon copy.
Engles v. Blocker, 127 Ark. 385, 192 S.W. 193, 195.
See, also, Copy.
CARBONIC ACID, See Choke damp.
CARCAN. In French law. An instrument of
punishment, somewhat resembling a pillory. It
sometimes signifies the punishment itself. Biret,
Vocab.
CARCANUM. A gaol; a prison.
CARCARE. In old English law. To load; to load
a vessel; to freight.
CARCATUS. Loaded; freighted, as a ship.
CARCEL-AGE. Gaol-dues; prison-fees.
CARCER. A prison or gaol. Strictly, a place of
detention and safe-keeping, and not of punishment.
Co.Litt. 620.
CARCER AD HOMINES CUSTODIENDOS, NON
AD PUNIENDOS, DARI DEBET. A prison
should be used for keeping persons, not for punishing them. Co.Litt. 260a. See Dig. 48. 19. 8. 9.
CARCER NON SUPPLICII CAUSÄ, SED CUSTODLzE
A prison is ordained not
for the sake of punishment, but of detention and
guarding. Lofft, 119.
CARDINAL. In ecclesiastical law. A dignitary
of the court of Rome, next in rank to the pope.
There are cardinal bishops, cardinal priests, and
cardinal deacons. See Fleury, Hist. Eccles. liv.
xxxv. n. 17, li. n. 19; Thomassin, part. ii. liv. i.
There are three degrees of care which are frequently recognized, corresponding (inversely) to the three degrees of
negligence, viz. : slight care, ordinary care, and great
care.
Slight care is such as persons of ordinary prudence usually exercise about their own affairs of slight importance.
25 Okl.St.Ann. § 4. Or it is that degree of care which a
person exercises about his own concerns, though he may be
a person of less than common prudence or of careless and
inattentive disposition. Litchfield v. White, 7 N.Y. 442,
57 Am.Dec. 534; Bank v. Guilmartin, 93 Ga. 503, 21 S.E.
55, 44 Arn.St.Rep. 182.
Ordinary care is that degree of care which persons of
ordinary care and prudence are accustomed to use and employ, under the same or similar circumstances. Gunn v.
Railroad Co., 36 W.Va. 165, 14 S.E. 465, 32 Am.St.Rep.
842; Railroad Co. v. Howard, 79 Ga. 44, 3 S.E. 426; Liston
v. Reynolds, 69 Mont. 480, 223 P. 507, 509; Pauls Valley
Compress & Storage Co. v. Harris, 62 Okl. 103, 162 P. 216,
218. Or it is that degree of care which may reasonably be
expected from a person in the party's situation, that is,
reasonable care. Neal v. Gillett, 1855, 23 Conn. 443.
Reasonable care is such a degree of care, precaution, or
diligence as may fairly and properly be expected or required, having regard to the nature of the action, or of
the subject-matter, and the circumstances surrounding the
transaction. See Johnson v. Hudson River R. Co., 6 Duer,
N.Y., 646; Appel v. Eaton & Price Co., 97 Mo.App. 428, 71
S.W. 741; Illinois Cent. R. Co. v. Noble, 142 Ill. 578, 32 N.
E. 684. It is such care as an ordinarily prudent person
would exercise under the conditions existing at the time
he is called upon to act. Midland Valley R. Co. v. Bell,
C.C.A.Okl., 242 F. 803, 808; Loverage v. Carmichael, 164
Minn. 76, 204 N.W. 921, 922. Substantially synonymous
with ordinary or due care. Kucera v. Grigsby, 24 Ohio
267
CARE
App. 457, 156 N.E. 249, 250; Wiley v. Rutland R. Co., 86
Vt. 504, 86 A. 808, 811.
Great care is such as persons of ordinary prudence usually exercise about affairs of their own which are of great
i mportance; or it is that degree of care usually bestowed
upon the matter in hand by the most competent, prudent,
and careful persons having to do with the particular subject. Railway Co. v. Smith, 87 Tex. 348, 28 S.W. 520;
Telegraph Co. v. Cook, Cal., 61 F. 628, 9 C.C.A. 680.
A high degree of care is not the legal equivalent of reasonable care. Gallatty v. Central R. of New Jersey, 86
N.J.Law, 416, 92 A. 279, 280. It is that degree of care
which a very cautious, careful, and prudent person would
exercise under the same or similar circumstances. Bryning v. Missouri, K. & T. Ry. Co. of Texas, Tex.Civ.App.,
167 S.W. 826, 827; a degree of care commensurate with
the risk of danger. New Jersey Fidelity & Plate Glass Ins.
Co. v. Lehigh Va:ley R. Co., 92 N.J.Law, 467, 105 A. 206,
207.
Highest degree of care and utmost degree of care have
substantially the same meaning. Brogan v. Union Traction
Co., 76 W.Va. 698, 86 S.E. 753, 756. "Highest degree of
care" only requires the care and skill exacted of persons
engaged in the same or similar business. Birmingham Ry..,
Light & Power Co. v. Cockrell, 10 Ala.App. 578, 65 So. 704.
It means the highest degree required by law where human
safety is at stake, and the highest degree known to the
usage and practice of very careful, skillful, and diligent
persons engaged in the same business by similar means or
agencies. Birmingham Ry., Light & Power Co. v. Barrett,
179 Ala. 274, 60 So. 262, 264.
This division into three degrees of care, however, does
not command universal assent. Raymond v. Portland R.
Co., 100 Me. 529, 62 A. 602, 605, 3 L.R.A.,N.S., 94; Pornroy v. Bangor & Aroostook R. Co., 102 Me. 497, 67 A. 561,
562.
CARELESS. Synonymous with "negligent," the
latter being probably the better word in pleadings.
Delmore v. Kansas City Hardwood Flooring Co.,
90 Kan. 29, 133 P. 151, 47 L.R.A.,N.S., 1220. Absence of ordinary or proper care, Pelfrey v. Commonwealth, 247 Ky. 484, 57 S.W.2d 474. Reckless,
Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573, 577.
CARELESSLY. Without care. Seago v. Paul
Jones Realty Co., 185 Mo.App. 292, 170 S.W. 372,
373. Negligently; denoting the absence of ordinary care. Jones v. Commonwealth, 213 Ky. 356,
281 S.W. 164, 167.
CARENA. A term used in the old ecclesiastical
law to denote a period of forty days.
CARENCE. In French law. Lack of assets; insolvency.
A procês-verbal de carence is a document setting out
that the huissier attended to issue execution upon a judgment, but found nothing upon which to levy. Arg.Fr.
Merc.Law, 547.
CARETA (spelled, also, Carreta and Carecta). A
cart; a cart-load.
CARETORIUS, or CARECTARIUS. A carter.
Blount.
CARGA. In Spanish law. An incumbrance; a
charge. White, New Recop. b. 2, tit. 13, c. 2, § 2.
CARGAISON. In French commercial law. Cargo; lading.
CARGARE. In old English law. To charge.
Spelman.
CARGO. In mercantile law. The load or lading
of a vessel; the goods, merchandise, or whatever
is conveyed in a ship or other merchant vessel.
Seamans v. Loring, 21 Fed.Cas. 920; Thwing v.
Insurance Co., 103 Mass. 401, 4 Am.Rep. 567.
While "cargo" is primarily the load of the ship, it may
have a varying meaning. Pennsylvania Sugar Co. v.
Czarnikow-Rionda Co., C.C.A.Pa., 245 F. 913, 915. The
term may be applied in such a sense as to include passengers, as well as freight, but in a technical sense it designates goods only. Wolcott v. Eagle Ins. Co., 4 Pick.,
Mass., 429. Thus, we say, A cargo of emigrants. See 7 M.
& G. 729, 744; Davison v. Von Lingen, 113 U.S. 49, 5 S.Ct.
346, 28 L.Ed. 885.
CARIAGIUM. In old English law. Carriage;
the carrying of goods or other things for the king.
CARISTIA. Dearth, scarcity, dearness. Cowell.
CARK. In old English law. A quantity of wool,
whereof thirty make a sarplar. (The latter is
equal to 2,240 pounds in weight.) St. 27 Hen. VI.
c. 2. Jacob.
CARLISLE TABLES. Life and annuity tables,
compiled at Carlisle, England, about 1780. Used
by actuaries, etc.
CARMACK ACT. An act of Congress, June 29,
1906, 49 U.S.C.A. § 20(11, 12), amending the •epburn Act. It supersedes all state regulations;
Chicago, B. & Q. R. Co. v. Miller, 226 U.S. 513, 33
S.Ct. 155, 57 L.Ed. 323.
CARMEN. In the Roman law. Literally, a verse
or song. A formula or form of words used on
various occasions, as of divorce. Tayl.Civil Law,
349.
CARNAL. Pertaining to the body, its passions
and its appetites; animal; fleshly; sensual; impure; sexual. People v. Battilana, 52 Cal.App.2d
685, 126 P.2d 923, 928.
CARNAL ABUSE. An act of debauchery of the
female sexual organs by those of the male which
does not amount to penetration;—the offense commonly called statutory rape consists of carnal
abuse. State v. Huggins, 84 N.J.Law, 254, 87 A.
630, 633. An injury to the genital organs in an
attempt at carnal knowledge, falling short of
actual penetration. Snyder v. State, 92 Ohio St.
167, 110 N.E. 644, 645. • Carnal knowledge of a
female child of tender age includes abuse. Dawkins v. State, 58 Ala. 376, 29 Am.Rep. 754.
CARNAL KNOWLEDGE. Coitus; copulation;
the act of a man in having sexual bodily connection with a woman; sexual intercourse. State v.
Normandale, 154 La. 523, 97 So. 798, 800; Patton
v. State, 105 Tex.Cr.R. 128, 287 S.W. 51, 52. There
is "carnal knowledge" if there is the slightest penetration of the sexual organ of the female by the
sexual prgan of the male. It is not necessary
that the vagina be entered or that the hymen be
ruptured; the entering of the vulva or labia is sufficient. State v. Huggins, 84 N.J.Law, 254, 87 A.
630, 633.
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CARRY
CARNALITER. In old criminal law. Carnally.
Carnalitvr cognovit, carnally knew. Technical
words in indictments for rape, and held essential.
1 Hale, P.C. 637-639.
CARNALLY KNEW. In pleading. A technical
phrase in an indictment to charge the defendant
with the crime of rape. Some authorities suggest
that the words "carnally knew" are included in
the term "rapuit" and are therefore unnecessary;
2 Hawk.P.C. c. 25, § 56; 2 Stark.Cr.P1. 431, n. (e),
at least in states in which the statutes do not designate the crime by the words "did ravish and
carnally know"; 1 Hale, P.C. 628, 632; 3 Russell,
Cr. (6th ed.) 230. See Noble v. State, 22 Ohio St.
545; Dawkins v. State, 58 Ala. 378, 29 Am.Rep.
754.
CARNO. In old English law. An immunity or
privilege. Cowell.
CAROOME. In English law. A license by the
lord mayor of London to keep a cart.
CARPEMEALS. Cloth made in the northern
parts of England, of a coarse kind, mentioned in
7 Jac. I. c. 16. Jacob.
CARRERA. In Spanish law. A carriage-way; the
right of a carriage-way. Las Partidas, pt. 3, tit.
31, 1. 3.
CARRIAGE. A vehicle used especially for the
transportation of persons either for pleasure or
business, and drawn by horses or other draught
animals over the ordinary streets and highways of
the country; not including cars used exclusively
upon railroads or street railroads expressly constructed for the use of such cars. Snyder v.
North Lawrence, 8 Kan. 84; Cream City R. Co. v.
Chicago, etc., R. Co., 63 Wis. 93, 23 N.W. 425, 53
Am.Rep. 267.
The act of carrying, or a contract for transportation of persons or goods.
As used in exemption statutes, includes an automobile,
Patten v. Sturgeon, C.C.A.Okl., 214 F. 65, 67, Hammond
v. Pickett, Tex.Civ.App., 158 S.W. 174. 175, and it includes
motor vehicles under various other circumstances. Ansell
v. City of Boston, 254 Mass. 208, 150 N.E. 167, 168; State
v. Jarvis, 89 Vt. 239, 95 A. 541, 543.
In admiralty, "carriage" includes ability to lift a cargo
and hold it afloat, and does not necessarily involve any
translation of the vessel from one place to another. The
Jungshoved, D.C.N.Y., 272 F. 122, 124.
The business of carriage is that arising under contracts
by which a person obligates himself, for an agreed price,
to transport, or have transported, an object of some kind,
to a designated place. Kocke v. Gamier, 15 La.App. 461,
131 So. 198, 199.
The contract of carriage is a contract for the conveyance
of property, persons, or messages, from one place to another. Civ.Code Cal. § 2085; Comp.Laws N.D.1913, § 6185;
Comp.Laws S.D.1929, § 1108.
As to "carriage by land or water" within the Illinois
Workmen's Compensation Act, see Stevens v. Illinois Cent.
R. Co., 306 Iii. 370, 137 N.E. 859, 861; Mattoon Clear Water
Co. v. Industrial Commission, 291 Ill. 487, 126 N.E. 168, 169.
CARRICLE, or CARRACLE. A ship of great burden.
CARRIER. One undertaking to transport persons
or property, Windham v. Pace, 192 S.E. 271, 6
S.E.2d 270, 274; or one employed in or engaged
in the business of carrying goods for others for
hire. Roeske v. Lamb, 39 N.M. 111, 41 P.2d 522,
523.
In common speech, "carriers" means transportation systems as distinguished from corporations owning or operating them. Virginian Ry. Co. v. Mullens, 271 U.S. 220, 46
S.Ct. 526, 529, 70 L.Ed. 915. And this is its meaning as
used in the Federal Control Act, § 10. Missouri Pac. R.
Co. v. Ault, 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed. 1087;
Birmingham Trust & Savings Co. v. Atlanta, B. & A. Ry.
Co., D.C.Ga., 271 F. 731, 739 (Transportation Act). An
electric railway that is part of the "general steam-railroad
system" is a "carrier" subject to the Railway Labor Act,
Sprague v. Woll, C.C.A.I11., 124 F.2d 767, 769.
A school bus acts as a "carrier." Leach v. School Dist.
No. 322 of Thurston County, 197 Wash. 384, 85 P.2d 666,
667.
Carriers are either common or private. Standard Oil Co. v. Public Service Commission of Wisconsin, 217 Wis. 563, 259 N.W. 598.
Common carriers are those that hold themselves out or
undertake to carry persons or goods of all persons indifferently, or of all who choose to employ it, Merchants Parcel Delivery v. Pennsylvania Public Utility Commission. 150
Pa.Super. 120, 28 A.2d 340, 344; Burnett v. Riter, Tex.Civ.
App., 276 S.W. 347, 349; or those whose occupation or
business is transportation of persons or things for hire or
reward, In re Rodgers, Neb., 279 N.W. 800, 803, 804.
Common carriers of passengers are those that undertake
to carry all persons indifferently who may apply for passage, so long as there is room, and there is no legal excuse
for refusal. Lazor v. Banas, 114 Pa.Super. 425, 174 A. 817,
819; Anderson v. Fidelity & Casualty Co. of New York,
100 Misc. 411, 166 N.Y.S. 640, 642.
Private carriers are those who transport or undertake to
transport in a particular instance for hire or reward.
Allen v. Sackrider, 37 N.Y. 341; Columbus-Cincinnati
Trucking Co. v. Public Utilities Commission, 141 Ohio St.
228, 47 N.E.2d 623; 625. 626.
For "Extension", see that title.
CARRIER'S LIEN. The right to hold the consignee's cargo until payment is made for the work
of transporting it. Sommers Const. Co. v. Atlantic Coast Line R. Co., 62 Ga.App. 23, 7 S.E.2d
429, 431.
CARROTED FUR, Fur that has been treated by
a solution of nitrate of mercury, so as to remove
the water-repellant substance covering the fibers,
making them more pliable and more easily to
interlock with other fibers of fur, or of wool. Matteawan Mfg. Co. v. Emmons Bros. Co., C.C.A.
Mass., 253 F. 372, 375.
CARRUCA. See Caruca.
CARRY. To bear, bear about, sustain, transport,
remove, or convey. To have or bear upon or
about one's person, as a watch or weapon;—locomotion not being essential. State v. Nieto, 101
Ohio St. 409, 130 N.E. 663, 665. Compare Heaton
v. State, 130 Tenn. 163, 169 S.W. 750. As applied
to insurance, means "possess" or "hold." San
Francisco Realty Co. v. Linnard, 98 Cal.App. 33,
276 P. 368, 370.
CARRY A MEMBER. To pay the assessments
against a sick or indigent member, as of a beneficial association, the payment being made by the
other members or the local lodge or camp on his
behalf. Bennett v. Sovereign Camp, Woodmen of
the World, Tex.Civ.App., 168 S.W. 1023, 1026.
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CARRY
CARRY AN ELECTION. For a candidate to be
elected, or a measure carried, at an election, he or
it must receive a majority or a plurality of the
legal votes cast. McKinney v. Barker, 180 Ky.
526, 203 S.W. 303, 304, L.R.A.1918E, 581.
CARTA.
In old English law. A charter, or deed. Any
written instrument.
In Spanish law. A letter; a deed; a power of
attorney. Las Partidas, pt. 3, tit. 18, 1. 30.
CARRY ARMS OR WEAPONS. To wear, bear, or
carry them upon the person or in the, clothing or
in a pocket, for the purpose of use, or for the
purpose of being armed and ready for offensive or
defensive action in case of a conflict with another
person. State v. Carter, 36 Tex. 89; State v. Murray, 39 Mo.App. 128.
CARTA MERCATORIA. A grant (1303) to certain foreign merchants, in return for custom duties, of freedom to deal wholesale in all cities and
towns of England, power to export their merchandise, and liberty to dwell where they pleased,
together with other rights pertaining to speedy
justice; 1 Holdsw.Hist.E.L. 311.
CARRY COSTS. A verdict is said to carry costs
when the party for whom the verdict is given becomes entitled to the payment of his costs as incident to such verdict.
CARRY ON TRADE OR BUSINESS. To conduct,
prosecute or continue a particular avocation or
business as a continuous operation or permanent
occupation. The repetition of acts may be sufficient. Lichtenstein v. State, 34 Ga.App. 138, 128
S.E. 704; Ledgerwood v. Dashiell, Tex.Civ.App.,
177 S.W. 1010, 1012; Martin v. Bankers' Trust Co.,
18 Ariz. 55, 156 P. 87, 90, Ann.Cas.1918E, 1240;
Territory v. Harris, 8 Mont. 140, 19 P. 286; Hutchings v. Burnet, 61 App.D.C. 109, 58 F.2d 514. To
hold one's self out to others as engaged in the
selling of goods or services. Helvering v. Highland, C.C.A.4, 124 F.2d 556, 561.
CARRY PASSENGERS FOR A CONSIDERATION. Transportation of persons under such
conditions that operator owes them duty of carrier for hire. Cartos v. Hartford Accident & Indemnity Co., 160 Va. 505, 169 S.E. 594, 597.
CARRY STOCK. To provide funds or credit for
its payment for the period agreed upon from the
date of purchase. Saltus v. Genin, 16 N.Y.Super.
Ct. 260. And see Pickering v. Demerritt, 100
Mass. 421.
CARRY THE IRON. See Fire Ordeal under the
title Ordeal.
CARTE. In French marine law. A chart.
CARTE BLANCHE. A white sheet of paper; an
instrument signed, but otherwise left blank. A.
sheet given to an agent, with the principal's signature appended, to be filled up with any contract
or engagement as the agent may see fit. Hence,
metaphorically, unlimited authority.
CARTEL.
In Trade and Commerce
A combination of producers of any product
joined together to control its production, sale, and
price, and to obtain a monopoly in any particular
industry or commodity. Also, an association by
agreement of companies or sections of companies
having common interests, designed to prevent extreme or unfair competition and allocate markets, and to promote the interchange of knowledge resulting from scientific and technical research, exchange of patent rights, and standardization of products. U. S. v. National Lead Co., D.C.
N.Y., 63 F.Supp. 513.
State of War
An agreement between two hostile powers for
the delivery of prisoners or deserters, or authorizing certain non-hostile intercourse between each
other which would otherwise be prevented by the
state of war; for example, agreements for intercommunication by post, telegraph, telephone, railway. II Op. 282.
Duel
A written challenge to a duel.
CARRYING AWAY. In criminal law. The act of
removal or asportation, by which the crime of
larceny is completed, and which is essential to constitute it. Gettinger v. State, 13 Neb. 308, 14 N.W.
403.
CARTULARY. A place where papers or records
are kept.
CART. In its ordinary and primary acceptation, a
carriage with two wheels; yet it may mean a
carriage in general, Favers v. Glass, 22 Ala. 624,
58 Am.Dec. 272; but not an automobile, Whitney
v. Welnitz, 153 Minn. 162, 190 N.W. 57, 28 A.L.R.
68. The vehicle in which criminals are taken to
execution.
CARUCA, or CARUA. A plow. A four-wheeled
carriage. A team for a plow, or four oxen
abreast. See Carucata.
In the plural: Ancient English records containing documents and legal proceedings—the muniments of title of
the great landowners, and other miscellaneous documents.
2 Holdsw.Hist.E.L. 273. See 1 Poll. & Maid. p. xxii.
CARUCAGE. In old English law. A kind of tax
or tribute anciently imposed upon every plow,
(carue or plow-land,) for the public service. Spelman. The act of plowing.
CART BOTE. Wood or timber which a tenant is CARUCATA, CARUCATE. A certain quantity of
allowed by law to take from an estate, for the land used as the basis for taxation. A cartload.
purpose of repairing instruments, (including nec- As much land as may be tilled by a single plow in
essary vehicles,) of husbandry. 2 Bl.Comm. 35. a year and a day. Skene, de verb, sig. A plow
See Bote.
land of one hundred acres. Ken. Gloss. The
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CASE
quantity varies in different counties from sixty to
one hundred and twenty acres. Whart. See Littleton, Ten. cclxii; 2 Holdsw.Hist.E.L. 56; Maitl.
Domesday Book and Beyond 395; 1 L.J.R. 96.
Also, a team of cattle, or a cart-load. See Bovata
terra.
CARUCATARIUS. One who held lands in carvage, or plow-tenure. Cowell.
CARUE. A carve of land; plow-land. Britt. c. 84.
CARVAGE. The same as carucage, (q. v.) Cowell.
CARVE. In old English law. A carucate or
plow-land.
CAS FORTUIT. Fr. In the law of insurance. A
fortuitous event; an inevitable accident.
CASATA. In old English law. A house with land
sufficient for the support of one family. Otherwise called "hida," a hide of land, and by Bede,
"familia." Spelman.
CASATUS. A vassal or feudal tenant possessing
a casata; that is, having a house, household, and
property of his own.
CASE.
Action, Cause, Suit, or Controversy
A general term for an action, cause, suit, or
controversy, at law or in equity; a question contested before a court of justice; an aggregate of
facts which furnishes occasion for the exercise of
the jurisdiction of a court of justice. Quoted with
approval in Kelly v. Roetzel, 64 Okl. 36, 165 P.
1150, 1153. See, also, Gebhard v. Sattler, 40 Iowa,
156; Martin v. Hunter, 1 Wheat. 352, 4 L.Ed. 97.
A controversy that is litigated. City of Akron v.
Roth, 88 Ohio St. 456, 103 N.E. 465, 467. A cause
of action. Strother v. Union Pac. R. Co., D.C.Mo.,
220 F. 731, 732; Colla v. Carmichael U-Drive
Autos, 111 Cal.App. 378, 294 P. 378, 380.
The word "case" or "cause" means a judicial proceeding
for the determination of a controversy between parties
wherein rights are enforced or protected, or wrongs are
prevented or redressed, Ex parte Chesser, 93 Fla. 590, 112
So. 87, 90; any proceeding judicial in its nature, McCarthy v. Clancy, 110 Conn. 482, 148 A. 551, 557.
Case of actual controversy. The phrase in Federal Declaratory Judgment Act connotes controversy of justiciable
nature, excluding advisory decree on hypothetical facts.
John P. Agnew & Co., Inc. v. Hoage, App.D.C., 69 App. D.
C. 116, 99 F.2d 349, 351.
Case sufficient to go to a jury. A case that has proceeded upon sufficient proof to that stage where it must be submitted to jury and not decided against the state as a matter of law. State v. McDonough, 129 Conn. 483, 29 A.2d
582, 584.
Cases and controversies. This term, as used in the constitution of the United States, embraces claims or contentions
of litigants brought before the court for adjudication by
regular proceedings established for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs; and whenever the claim or contention of
a party takes such a form that the judicial power is capable of acting upon it, it has become a case or controversy.
Interstate Commerce Com'n v. Brimson, 154 U.S. 447, 14
Sup.Ct. 1125, 38 L.Ed. 1047. These two terms are to be
distinguished; for there may be a "separable controversy"
within a "case," which may be removed from a state court
to a federal court, though the case as a whole is not re-
movable. Snow v. Smith, C.C.Va., 88 Fed. 658. The term
"controversies", if distinguishable frofn "cases", is so in
that it is less comprehensive than the term "cases" and
includes only suits of a civil nature, Smith v. Blackwell,
C.C.A.S.C., 115 F.2d 186, 188.
Applications and Special Proceedings
The word "case" may include application for
divorce, applications for the establishment of highways, applications for orders of support of relatives, and other special proceedings unknown to
the common law. S. D. Warren Co. v. Fritz, 138
Me. 279, 25 A.2d 645, 648.
Box or Container
A box or container, as for cans or bottles filled
with milk or other liquid goods. Ex parte Reineger, 184 Cal. 97, 193 P. 81, 83.
Event, Happening, etc.
In ordinary usage, the word "case" means
"event," "happening," "situation," "circumstances."
Highfield v. Delaware Trust Co., Del.Super., 188 A.
919, 922.
Form of Action
A form of action which lies to recover damages
for injuries for which the more ancient forms of
action will not lie. Steph.P1. 15. An abbreviated
form of the title "trespass on the case," q. v.
Munal v. Brown, C.C.Colo., 70 F. 968. See, also,
Wadleigh v. Katandin Pulp & Paper Co., 116 Me.
107, 100 A. 150, 151. Action where injury is merely consequential. Mawson v. Vess Beverage Co.,
Mo.App., 173 S.W.2d 606, 612, 613.
Grand Jury Inquiry
As used in statute authorizing a challenge to
an individual grand juror, any matter that
might become subject of inquiry by grand jury.
People v. Prior, 268 App.Div. 717, 54 N.Y.S.2d 150,
153.
Statement of Facts
A statement of the facts involved in a transaction or series of transactions, drawn up in writing
in a technical form, for submission to a court or
judge for decision or opinion. Under this meaning
of the term are included a "case made" for a motion for new trial, a "case reserved" on the trial
of a cause, an "agreed case" for decision without
trial, etc.
Case agreed on. A formal written enumeration of the
facts in a case, assented to by both parties as correct and
complete, and submitted to the court by their agreement,
in order that a decision may be rendered without a trial,
upon the court's conclusions of law upon the facts as stated.
Case for motion. In English divorce and probate practice,
when a party desires to make a motion, he must file,
among other papers, a case for motion, containing an abstract of the proceedings in the suit or action, a statement
of the circumstances on which the motion is founded, and
the prayer or nature of the decree or order desired.
Browne, Div. 251; Browne, Prob.Pr. 295.
Case-made. A statement of facts in relation to a disputed
point of law, agreed to by both parties and submitted to
the court without a preceding action. This is found only
in the Code states. See De Armond v. Whitaker, 99 Ala.
252, 13 So. 613; A complete record of each successive ac-
271
CASE
tion of the trial court at the trial, including testimony.
In re Opinion of the Judges, 29 Okl.Cr. 27, 232 P. 121, 122.
A "case-made" consists of those things which transpired in
court during the trial, and which are not a part of the
record. Jones v. State, 9 Okl.Cr. 189, 130 P. 1178.
Case on appeal. In American practice. Before the argument in the appellate court of a case brought there for review, the appellant's counsel prepares a document or brief,
bearing this name, for the information of the court, detailing the testimony and the proceedings below. In English practice. The "case on appeal" is a printed statement
prepared by each of the parties to an appeal to the house
of lords or the privy council, setting out methodically the
facts which make up his case, with appropriate references
to the evidence printed in the "appendix.' The term also
denotes a written statement, prepared and transmitted by
an inferior court or judge raising a question of law for
the opinion of a superior court.
Case reserved. A statement in writing of the facts proved
on the trial of a cause, drawn up and settled by the attorneys and counsel for the respective parties under the
supervision of the judge, for the purpose of having certain
points of law, which arose at the trial and could not then
be satisfactorily decided, determined upon full argument
before the court in Banc. This is otherwise called a "special case ;" and it is usual for the parties, where the law of
the case is doubtful, to agree that the jury shall find a
general verdict for the plaintiff, subject to the opinion of
the court upon such a case to be made, instead of obtaining from the jury a special verdict. 3 Bl.Comm. 378; 3
Steph.Comm. 621; Steph.Pl. 92, 93; 1 Burrill, Pr. 242, 463.
Case stated. In practice. An agreement in writing, between a plaintiff and defendant, that the facts in dispute
between them are as therein agreed upon and set forth.
3 Sharsw.Bla.Comm. 453, n. ; 6 Term, 313. A case agreed
upon. A statement of all the facts of a case, with the names
of the witnesses, and a detail of the documents which are
to support them. A statement of agreed facts. Caissie v.
City of Cambridge, 317 Mass. 346, 58 N.E.2d 169. An auditor's report. Hanifin v. C. & R. Const. Co., 313 Mass.
651, 48 N.E.2d 913, 918. A brief. As to the distinction between submission on a case stated and a submission merely
on agreed facts, see Frati v. Jannini, 226 Mass. 430, 115
N.E. 746_747.
Case to move for new trial. In practice. A case prepared
by the party against whom a verdict has been given, upon
which to move the court to set aside the verdict and grant
a new trial.
Supplementary Proceedings
The word "cases" in section providing that "act
shall apply in all cases now pending or hereafter
instituted in which the final decree of divorce was
recorded prior to the effective date of this act", is
synonym of "supplementary proceedings". Chiapetta v. Jordan, 16 So.2d 641, 644, 153 Fla. 788.
CASE LAW. The aggregate of reported cases as
forming a body of jurisprudence, or the law of a
particular subject as evidenced or formed by the
adjudged cases, in distinction to statutes and other
sources of law.
CASE SYSTEM. A method of teaching or studying the science of the law by a study of the cases
historically, or by the inductive method. It was
introduced in the Law School of Harvard University in 1869-70 by Christopher C. Langdell, Dane
Professor of Law.
CASH. Money or its equivalent; usually ready
money. Kerlin v. Young, 159 Ga. 95, 125 S.E. 204,
207; Britain v. Rice, Tex.Civ.App., 204 S.W. 254,
256.
Money in hand, either in current coin or other legal tender, or in bank bills or checks paid and received as money.
Dunlap v. Whitmer, 133 La. 317, 62 So. 938, 943, Ann.Cas.
1915C, 990. Bank deposits, In re Feist's Will, 170 Misc. 497,
10 N.Y.S.2d 506, 508; Lane v. Railey, 280 Ky. 319, 133 S.
W.2d 74, 79, 80. Bank notes or sight drafts, Lane v. Railey, 280 Ky. 319, 133 S.W.2d 74, 79, 80. Bank's deposit
certificate. Bingham v. Montcalm County, 251 Mich. 651,
232 N.W. 348, check, Van Decar v. Streeter, 136 Misc. 206,
240 N.Y.S. 492, 497. Commercial paper. Commercial Credit
Corporation v. Third & Lafayette Streets Garage, 131 Misc.
786, 228 N.Y.S. 166, 168. Currency, coin, specie. Lane v.
Railey, 280 Ky. 319, 133 S.W.2d 74, 79, 80. Whatever can
be used as money without being converted into another
form. That which circulates as money, including bank
bills. Hooper v. Flood, 54 Cal. 221; Dazel v. Landry, 21
Nev. 291, 30 Pac. 1064; United States v. Williams, D.C.
Wash., 282 F. 324, 325. The term may include currency,
municipal orders, warrants, or scrip. Arkansas Public
Utilities Co. v. Incorporated Town of Heber Springs, 151
Ark. 249, 235 S.W. 999, 1001. It is frequently used as an
antonym of "credit." Parrish v. American Ry. Employees'
Pub. Corporation, 83 Cal.App. 298, 256 P. 590, 591; State v.
Woodward, 208 Ala. 31, 93 So. 826.
CASH ACCOUNT. A record, in bookkeeping, of
all cash transactions; an account of moneys received and expended.
CASH BOOK. In bookkeeping, an account book
in which is kept a record of all cash transactions,
or all cash received and expended.
The object of the cash book is to afford a constant facility to ascertain the true state of a man's cash. Pardessus,
n. 87.
CASH CONTRACT. A "cash contract," as of a
municipal corporation, is one not creating a debt
within the constitution. Jeffersonville v. Cotton
State Belting Supply Co., 30 Ga.App. 470, 118 S.
E. 442.
CASH DISCOUNT. A deduction from billed price
which seller allows for payment within a certain
time. Leonard v. U. S., Ct.C1., 7 F.Supp. 295,
297.
CASH MARKET VALUE. "Fair market value",
"reasonable market value" or "fair cash market
value" as synonymous. Housing Authority of
Birmingham Dist. v. Title , Guarantee Loan &
Trust Co., 243 Ala. 157, 8 So.2d 835, 837. For "Fair
Cash Market Value," see that title.
CASH NOTE. In England. A bank-note of a
provincial bank or of the Bank of England.
CASH PRICE. A price payable in cash at the
time of sale of property, in opposition to a barter
or a sale on credit.
CASH SALE. A sale for money in hand. Steward
v. Scudder, 24 N.J.Law, 101; Bass v. Green &
Yates, 201 Ala. 515, 78 So. 869. A sale conditioned
on payment concurrent with delivery. Weyerhaeuser Timber Co. v. First Nat. Bank, 150 Or.
172, 43 P.2d 1078, 1081. See, further, Sale.
CASEMENT. A window sash opening on hinges
affixed to the upright side of the frame, and includes wooden as well as steel construction. JohnCASH SURRENDER VALUE. The "cash surson Metal Products Co. v. Lundell-Eckberg Mfg.
render value" of a life policy is the reserve less a
Co., D.C.N.Y., 18 F.Supp. 572, 574.
272
CAST
surrender charge. Guggenheim v. Rasquin, U.S.
N.Y., 312 U.S. 254, 61 S.Ct. 507, 508, 85 L.Ed. 813.
CASH VALUE. The cash value of an article or
piece of property is the price which it would bring
at private sale (as distinguished from a forced or
auction sale) the terms of sale requiring the payment of the whole price in ready money, with no
deferred payments. Tax Com'rs v. Holliday, 150
Ind. 216, 49 N.E. 14, 42 L.R.A. 826; Cummings v.
Bank, 101 U.S. 162, 25 L.Ed. 903. For "Fair Cash
Value," see that title.
Actual value or market value, Fort Worth &
D. N. Ry. Co. v. Sugg, Tex.Civ.App., 68 S.W.2d
570, 572; Yeoman Mut. Life Ins. Co. v. State
Board of Assessment, 229 Iowa 220, 294 N.W. 330,
334. Clear market value or fair market value. In
re Ryerson's Estate, 239 Wis. 120, 300 N.W. 782,
784. Price property will bring on sale by one desiring, but not compelled, to sell to one desiring,
but not compelled, to purchase. Insurance Co. of
North America v. McGraw, 255 Ky. 839, 75 S.W.2d
518, 520. Saleable value, In re Lang Body Co., C.C.
A.Ohio, 92 F.2d 338, 340. Usual selling price at
private sale and not at a forced or auction sale.
Volunteer State Life Ins. Co. v. Union Title Guarantee Co., 175 La. 183, 143 So. 43, value at which
property would be taken in payment of just debt
from solvent debtor. Bank of Fairfield v. Spokane
County, 173 Wash. 145, 22 P.2d 646, 652.
CASHIER, v. In military law. To deprive a military officer of his rank and office.
CASHIER, n. An officer of a moneyed institution, or commercial house, or bank, who is intrusted with, and whose duty it is to take care
of, the cash or money of such institution or bank.
A custodian of the money of a bank, mercantile
house, and the like. Miller v. State, 88 Tex.Cr.
R. 69, 225 S.W. 379, 381, 12 A.L.R. 597.
The cashier of a bank is its chief executive officer. PemIscot County Bank v. Central-State Nat. Bank, 132 Tenn. '
152, 177 S.W. 74, 75; Bank of Commerce of Chanute v.
Sams, 96 Kan. 437, 152 P. 28, 29. He is its chief financial!
agent, through whom its principal financial dealings are
conducted; Brown v. Mt. Holly Nat. Bank, 288 Pa. 478)
136 A. 773, 775; and is peculiarly that agency authorized
to make loans and collections, whose special duty it is to
give direction to and further the stockholders' interests;
People's Bank of Calhoun v. Harry L. Winter, Inc., 161
Ga. 898, 132 S.E. 422, 424.
He receives and pays out its moneys, collects and pays
its debts, and receives and transfers its commercial securities. Tellers and other subordinate officers may be appointed, but they are under his direction, and are, as it were,
the arms by which designated portions of his various functions are discharged. Merchants' Nat. Bank v. State Nat.
Bank, 10 Wall. 650, 19 L.Ed. 1008.
CASHIERED. Dismissal with ignominy or dishonor, or in disgrace. Metropolis Co. v. Croasdell,
145 Fla. 455, 199 So. 568, 569.
CASHIER'S CHECK. See Check.
CASHLITE. An amercement or fine; a mulct.
CASING—HEAD GAS. Natural gas from an oil
well, saturated with oil vapors or gasoline. 58
C.J.S. p. 26.
Black's Law Dictionary Revised 4th Ed.-18
—Casing-head gasoline. Sometimes called natural gasoline. It is produced from casing-head gas
by compression or separation of the gases which
come from oil wells. 58 C.J.S. p. 21.
CASKET. In one sense, a coffin. Ware v. State,
31 Ga.App. 554, 121 S.E. 251.
CASSARE. To quash; to render void; to break.
Du Cange.
CASSATION. In French law. Annulling; reversal; breaking the force and validity of a judgment. A decision emanating from the sovereign
authority, by which a decree or judgment in the
court of last resort is broken or annulled. Merl.
Repert.
CASSATION, COURT OF. (Fr. tour de cassation.) The highest court in France; so termed
from possessing the power to quash (casser)
the decrees of inferior courts. It is a court of appeal in criminal as well as civil cases.
CASSETUR BILLA. (Lat. That the bill be
quashed.) In practice. The form of the judgment for the defendant on a plea in abatement,
where the action was commenced by bill, (billa.)
3 Bl.Comm. 303; Steph.Pl. 128, 131. The form of
an entry made by a plaintiff on the record, after a
plea in abatement, where he found that the plea
could not be confessed and avoided, nor traversed,
nor demurred to; amounting in fact to a discontinuance of the action. 2 Archb.Pr.K.B. 3, 236; 1
Tidd, Pr. 683.
CASSETUR BREVE. (Lat. That the writ be
quashed.) In practice. The form of the judgment for the defendant on a plea in abatement,
where the action was commenced by original writ
(breve). 3 Bl.Comm. 303; Steph.Pl. 107, 109.
A judgment sometimes entered against a plaintiff at his request when, in consequence of allegations of the defendant, he can no longer prosecute
his suit with effect. 5 Term 634.
CASSOCK, or CASSULA. A garment worn by a
priest.
CAST, v. In old English practice. To allege,
offer, or present; to proffer by way of excuse (as
to "cast an essoin").
This word is now used as a popular, rather
than a technical, term, in the sense of to overcome, overthrow, or defeat in a civil action at law.
It also means to deposit formally or officially.
Maddox v. Board of State Canvassers, Mont., 149
P.2d 112, 115; Port of Palm Beach Dist. v. State,
156 Fla. 99, 22 So.2d 581, 582. It is also used in
connection with the imposition upon a party litigant of costs in the suit: as, A. is "cast" for the
costs of the case.
CAST AWAY. To cast away a ship is to do such
an act upon or in regard to it as causes it to
perish or be lost, so as to be irrecoverable by ordinary means. The term is synonymous with "destroy," which means to unfit a vessel for service
beyond the hope of recovery by ordinary means.
U. S. v. Vanranst, 28 Fed.Cas. 360.
273
CASTEL
CASTEL, or CASTLE. A fortress in a town; the
principal mansion of a nobleman. 3 Inst. 31.
CASTELLAIN. In old English law. The lord,
owner, or captain of a castle; the constable of a
fortified house; a person having the custody of
one of the crown mansions; an officer of the
forest.
CASTELLANUS. A castellain; the keeper or constable of a castle. Spelman.
CASTELLARIUM, CASTELLATUS. In old English law. The precinct or jurisdiction of a castle.
Blount.
CASTELLORUM OPERATIO. In Saxon and old
English law. Castle work. Service and labor done
by inferior tenants for the building and upholding
of castles and public places of defense. One of the
three necessary charges, (trinoda necessitas,) to
which all lands among the Saxons were expressly
subject. Cowell. Towards this some gave their
personal service, and others, a contribution of
money or goods. 1 Bla.Comm. 263.
CASTIGATORY. An engine used to punish women who have been convicted of being common
scolds. It is sometimes called the trebucket, tumbrel, ducking-stool, or cucking-stool. U. S. v.
Royall, 27 Fed.Cas. 907.
CASTING VOTE. Where the votes of a deliberative assembly or legislative body are equally divided on any question or motion, it is the privilege
of the presiding officer to cast one vote (if otherwise he would not be entitled to any vote) on
either side, or to cast one additional vote, if he has
already voted as a member of the body. This is
called the "casting vote." Brown v. Foster, 88 Me.
49, 33 A. 662, 31 L.R.A. 116.
CASTLEGUARD. In feudal law. An imposition
anciently laid upon such persons as lived within a
certain distance of any castle, towards the maintenance of such as watched and warded the castle.
CASTLEGUARD RENTS. In old English law.
Rents paid by those that dwelt within the precincts of a castle, towards the maintenance of such
as watched and warded it.
CASTRENSIS. In the Roman law. Relating to
the camp or military service.
Castrense peculium, a portion of property which
a son acquired in war, or from his connection
with the camp. Dig. 49, 17.
CASTRUM. Lat.
In Roman law. A camp.
In old English law. A castle. Bract. fol. 69b.
A castle, including a manor. 4 Coke, 88.
CASU CONSIMILI. In old English law. A writ
of entry, granted where tenant by the curtesy, or
tenant for life, alienated in fee, or in tail, or for
another's life, which was brought by him in reversion against the party to whom such tenant so
alienated to his prejudice, and in the tenant's lifetime. Termes de la Ley. See Consimili C.asu.
CASU PROVISO. Lat. In the case provided for.
A writ of entry framed under the provisions of the
statute of Gloucester (6 Edw. I.) c. 7, which lay for
the benefit of the reversioner when a tenant in
dower aliened in fee or for life.
CASUAL. Accidental, Gray v. Greenwood, 32 A.
2d 347, 350, 21 N.J.Misc. 137; Texas & N. 0. R.
Co. v. Owens, Tex.Civ.App., 54 S.W.2d 848, 853;
Sonnenberg v. Berg's Market, 227 Mo.App. 391, 55
S.W.2d 494; by chance, Texas & N. 0. R. Co. v.
Owens, Tex.Civ.App., 54 S.W.2d 848, 853; coming
by chance, Lawrenz v. Langford Electric Co., 206
Minn. 315, 288 N.W. 727, 731; Norris v. Koenig,
Mo.App., 183 S.W.2d -160, 162; fortuitous, Sonnenberg v. Berg's Market, 227 Mo.App. 391, 55 S.W.2d
494, 495. Happening or coming to pass without
design and without being foreseen or expected.
Root v. Topeka Ry. Co., 96 Kan. 694, 153 P. 550;
Ranson-Rooney Co. v. Overseas Ry., f7 La.App.
205, 134 So. 765, 768; impermanent, Board of
Sup'rs of Amherst County v. Boaz, 176 Va. 126,
10 S.E.2d 498, 500; incidental, Mason v. Wampler,
89 Ind.App. 483, 166 N.E. 885, 886, Coffin v. Hook,
Ind.App., 45 N.E.2d 369, 372; indeterminate, Texas
& N. 0. R. Co. v. Owens, Tex.Civ.App., 54 S.W.2d
848, 853; irregular, Gardner v. Trustees of Main
St. M. E. Church of Ottumwa, 217 Iowa, 1390, 250
N.W. 740; liable to happen, subject to chance or
accident, Coffin v. Hook, 112 Ind.App. 549, 45 N.E.
2d 369, 372; occasional, Cardillo v. Mockabee, 70
App.D.C. 16, 102 F.2d 620, 622; uncertain, Coffin v.
Hook, 112 Ind.App. 549, 45 N.E.2d 369, 372; unexpected, Gray v. Greenwood, 21 N.J.Misc. 137,
32 A.2d 347, 350; Texas & N. 0. R. Co. v. Owens,
Tex.Civ.App., 54 S.W.2d 848, 853; unforeseen, Texas & N. 0. R. Co. v. Owens, Tex.Civ.App., 54 S.W.
2d 848, 853; Lawrenz v. Langford Electric Co., 206
Minn. 315, 288 N.W. 727, 731; unpremeditated,
Lawrenz v. Langford Electric Co., 206 Minn. 315,
288 N.W. 727, 731; without regularity, Norris v.
Koenig, Mo.App., 183 S.W.2d 160, 162; Sonnenberg
v. Berg's Market, 227 Mo.App. 391, 55 S.W.2d
494.
CASUAL BETTOR. An occasional and irregular
bettor who is not guilty of crime of engaging in
betting and gambling organized and carried on as
a systematic business. Bamman v. Erickson, 288
N.Y. 133, 41 N.E.2d 920, 922.
CASUAL DEFICENCY OF REVENUE. An unforeseen or unexpected deficiency, or an insufficiency of funds to meet some unforeseen and
necessary expense. Atlanta Distributing Terminals v. Board of Com'rs etc., of Fulton County,
177 Ga. 250, 170 S.E. 52, 56.
CASUAL DEFICIT. A deficit happening by chance
or accident and without design. State Budget
Commission v. Lebus, 244 Ky. 700, 51 S.W.2d
965.
CASUAL EJECTOR. In practice. The nominal
defendant in an action of ejectment. French v.
Robb, 67 N.J.Law, 260, 51 A. 509, 57 L.R.A. 956.
CASUAL EMPLOYEE. Though courts have refrained from defining "casual employee" as such
274
CASUS
term is used in the Workmen's Compensation Act, • suddenly taken sick, or meet with some accident,
the test in the particular case is whether service
when away from home, and who are thus provirendered or work done, rather than contract of
dentially thrown upon the charities of those
hiring, is of casual nature; infrequency of emamong whom they happen to be. Force v. Haines,
17 N.J.Law, 405.
ployment or its duration being immaterial. Hygeia
Ice & Coal Co. v. Schaeffer, 152 Md. 231, 136 A. 548,
CASUALTY. Accident; event due to sudden, un551.
expected or unusual cause; event not to be foreAs regards whether an employee is a "casual" employee
seen or guarded against; inevitable accident;
the word "casual" means something happening without
misfortune or mishap; that which comes by
design and unexpectedly. Ward v. Ocean Forest Club, 188
S.C. 233, 198 S.E. 385.
chance or without design. A loss from such an
CASUAL EMPLOYMENT. Employment at uncer- event or cause; as by fire, shipwreck, lightning,
tain times or irregular intervals. Johnson v. Wis- etc. Story, Bailm. § 240; Gill v. Fugate, 117 Ky.
257, 78 S.W. 191; Farmers Co-op. Soc. No. 1 of
consin Lumber & Supply Co., 203 Wis. 304, 234
Quanah v. Maryland Casualty Co., Tex.Civ.App.,
N.W. 506, 507, 72 A.L.R. 1279; employment by
135 S.W.2d 1033, 1036; Matheson v. Commissioner
chance, fortuitously, and for no fixed time, Boyd
v. Philmont Country Club, 129 Pa.Super. 135, 195 of Internal Revenue, C.C.A., 54 F.2d 537, 539;
Stieffen v. Darling, 158 Va. 375, 163 S.E. 353, 354.
A. 156, 157, 158; employment casual and not in
Chance; accident; contingency; also that which
usual course of trade, business, occupation or
comes without design or without being foreseen.
profession of employer. Kunkler v. Mauck, 108
Bennett v. Howard, 175 Ky. 797, 195 S.W. 117,. 118,
Ind.App. 98, 27 N.E.2d 97, 99. Employment for
L.R.A.1917E, 1075; United States v. Rogers, C.C.A.
short time and limited and temporary purpose,
Moore v. Clarke, 171 Md. 39, 187 A. 887, 894, 107 Cal., 120 F.2d 244, 246.
A.L.R. 924; fortuitous and irregular employment.
-Casualties of superiority. In Scotch law. PayMcCabe v. Timothy Shanahan & Son, 147 Pa.Su- ments from an inferior to a superior, that is, from
per. 491, 24 A.2d 16, 18; occasional, irregular or,ina tenant to his lord, which arise upon uncertain
cidental employment, Maguire v. Valley Forge
events, as opposed to the payment of rent at fixed
Military Academy, 116 Pa.Super. 495, 176 A. 865,
and stated times. Bell.
867.
-Casualties of wards. In Scotch law. The mails
The test is the nature of the work or an analysis
and duties due to the superior in wardholdings.
of the contract of employment. State Farm Mut.
CASUS. Lat. Chance; accident; an event; a
Automobile Ins. Co. v. Brooks, D.C.Mo., 43 F.Supp.
case; a case contemplated.
870, 872; or whether the employment is necessary
to carry out the employer's business in usual way.
CASUS BELLI. An occurrence giving rise to or
Thompson v. G. Correale & Sons, 130 N.J.L. 431,
justifying war.
33 A.2d 578, 579; or the scope of the contract of
employment or the continuity of employment. CASUS FEDERIS. In international law. The
Cochrane v. William Penn Hotel, Hartford Accicase of the treaty. The particular event or situadent & Indemnity Co., Intervener, 140 Pa.Super.
tion contemplated by the treaty, or stipulated for,
323, 13 A.2d 875, 877; "Casual" means occasional;
or which comes within its terms. Grotius, b. 2, c.
incidental; happening at uncertain times; not
25; Vattel, b. 2, c. 12, § 168; 1 Kent, 49. In comstated or regular; its antonyms being regular;
mercial law. The case or event contemplated by
systematic; periodic; certain, Pooler's Case, 122
the parties to an individual contract or stipulated
Me. 11, 118 A. 590, 591; Dial v. Coleman's Lunch,
for by it, or coming within its terms.
217 Iowa, 945, 251 N.W. 33; happening or coming
to pass without design and without being foreseen CASUS FORTUITUS. An inevitable accident, a
or expected, accidental, fortuitous, coming by
chance occurrence, or fortuitous event. A loss
chance, coming without regularity, Tokash v. Genhappening in spite of all human effort and sagaeral Baking Co., 349 Mo. 767, 163 S.W.2d 554, 556;
city. 3 Kent, Comm. 217, 300; The Majestic, 166
The term refers to nature of employment and not U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039.
to length. Parks v. E. M. Carmell Co., 168 Tenn.
385, 79 S.W.2d 285, 287.
CASUS FORTUITUS NON EST SPERANDUS, ET
NEMO TENETUR DEVINARE. A fortuitous
CASUAL , EVIDENCE. A phrase used to denote
event is not to be expected, and no one is bound to
all such evidence as happens to be adducible of a
foresee it. 4 Coke, 66.
fact or event, but which was not prescribed by
statute or otherwise arranged beforehand to be CASUS FORTUITUS NON EST SUPPONENDUS.
the evidence of the fact or event. Brown.
A fortuitous event is not to be presumed. Hardr.
82, arg.
CASUAL PAUPER. A poor person who, in 'England, applies for relief in a parish other than that
CASUS MAJOR. In the civil law. A casualty; an
of his settlement. The ward in the work-house to
extraordinary casualty, as fire, shipwreck, etc.
which they are admitted is called the "casual
Dig. 44, 7, 1, 4.
ward."
CASUS OMISSUS. A case omitted; an event or
CASUAL POOR. In English law. Those who are
contingency for which no provision is made; parnot settled in a parish. Such poor persons as are
ticularly a case not provided for by the statute
275
CASUS
on the general subject, and which is therefore left
to be governed by the common law. .5 Co. 38; 11
East 1; Broom, Max. 46.
CATASCOPUS. An old name for an archdeacon.
CATASTROPHE. A notable disaster; a more
serious calamity than might ordinarily be understood from the term "casualty." Reynolds v.
Board of Com'rs of Orleans Levee Dist., 139 La.
518, 71 So. 787, 791.
CASUS OMISSUS ET OBLIVION! DATUS DISPOSITION! JURIS COMMUNIS RELINQUITUR.
A case omitted and given to oblivion (forgotten)
is left to the disposal of the common law. 5 Coke,
38. A particular case, left unprovided for by
statute, must be disposed of according to the law
as it existed prior to such statute. Broom, Max.
46; 1 Exch. 476.
CATCH TIME CHARTER. One under which
compensation is paid for the time the boat is actually used. Schoonmaker-Conners Co. v. New
York Cent. R. Co., D.C.N.Y., 12 F.2d 314, 315.
CATCHING BARGAIN. See Bargain.
CASUS OMISSUS PRO OMISSO HABENDUS
EST. A case omitted is to be held as (intentionally) omitted. Tray.Lat.Max. 67.
CATCHINGS. Things caught, and in the possession, custody, power, and dominion of the party,
with a present capacity to use them for his own
purposes. The term includes blubber, or pieces of
whale flesh cut from the whale, and stowed on or
under the deck of a ship. A policy of insurance
upon outfits, and catchings substituted for the outfits, in a whaling voyage, protects the blubber.
Rogers v. Insurance Co., 1 Story, 603; Fed.Cas.No.
12,016; 4 Law Rep. 297.
CAT. A domestic animal that catches mice; a
well known domesticated carnivorous mammal
kept to kill mice and rats and as a house pet.
Thurston v. Carter, 112 Me. 361, 92 A. 295, L.R.A.
1915C, 359.
An instrument with which criminals are flogged.
It consists of nine lashes of whipcord, tied to a
wooden handle, and is frequently called cat-o-ninetails. It is used where the whipping-post is retained as a mode of punishment and was formerly
resorted to in the navy.
CATALLA. In old English law. Chattels. The
word among the Normans primarily signified only
beasts of husbandry, or, as they are still called,
"cattle," but, in a secondary sense, the term was
applied to all movables in general, and not only
to these, but to whatever was not a fief or feud.
Wharton.
CATALLA JUSTE POSSESSA AMITTI NON
POSSUNT. Chattels justly possessed cannot be
lost. Jenk.Cent. 28.
CATALLA OTIOSA. Dead goods or chattels, as
distinguished from animals. Idle cattle, that is,
such as were not used for working, as distinguished from beasts of the plow; called also animalia
otiosa. Bract. fols. 217, 217b; 3 Bl.Comm. 9.
CATALLA REPUTANTUR INTER MINIMA IN
LEGE. Chattels are considered in law among the
least (or minor) things. Jenk.Cent. 52.
CATALLIS CAPTIS NOMINE DISTRICTIONIS.
An obsolete writ that lay where a house was within a borough, for rent issuing out of the same,
and which warranted the taking of doors, windows, etc., by way of distress.
CATALLIS REDDENDIS. For the return of the
chattels; an obsolete writ that lay where goods
delivered to a man to keep till a certain day were
not upon demand redelivered at the day. Reg.
Orig. 39.
CATALLUM. A chattel. Most frequently used
in the plural form, catalla (q. v.). Cowell; Du
Cange.
CATALS. Goods and chattels. See Catalla.
CATANEUS. A tenant in capite. A tenant holding immediately of the crown. Spelman.
CATCHLAND. Land in Norfolk, so called because
it is not known to what parish it belongs, and the
minister who first seizes the tithes of it, by right
of preoccupation, enjoys them for that year.
Cowell.
CATCHPOLL. A name formerly given to a
sheriff's deputy, or to a constable, or other officer
whose duty it is to arrest persons. He was a sort
of serjeant. The word is not now in use as an
official designation. Minshew.
CATER COUSIN. (From Fr. Quatrecousin.) A
cousin in the fourth degree; hence any distant
or remote relative. Bla.Law Tracts 6.
CATHEDRAL. In English ecclesiastical law. A
tract set apart for the service of the church. The
church of the bishop of the diocese, in which is his
cathedra, or throne, and his special jurisdiction;
in that respect the principal church of the diocese.
CATHEDRAL PREFERMENTS. In English ecclesiastical law. All deaneries, archdeaconries,
and canonries, and generally all dignities and
offices in any cathedral or collegiate church, below the rank of a bishop.
CATHEDRATIC. In English ecclesiastical law. A
sum of 2s. paid to the bishop by the inferior clergy; but from its being usually paid at the bishop's
synod, or visitation, it is commonly named synodals. Wharton.
CATHOLIC CREDITOR. In Scotch law. A creditor whose debt is secured on all or several distinct
parts of the debtor's property. Bell.
CATHOLIC EMANCIPATION ACT. The statute
of 10 Geo. IV, c. 7, by which Roman Catholics
were restored, in general, to the full enjoyment
of all civil rights, except that of holding ecclesiastical offices, and certain high appointments in,
the state. 3 Steph.Comm. 109.
276
CAUSA
CATONIANA REGULA. In Roman law. The
rule which is commonly expressed in the maxim,
Quod ab initio non valet tractu temporis non
convalebit, meaning that what is at the beginning
void by reason of some technical (or other) legal
defect will not become valid merely by length of
time. The rule applied to the institution of
hceredes, the bequest of legacies, and such like.
The rule is not without its application also in
English law; e. g., a married woman's will (being
void when made) is not made valid merely because she lives to become a widow. Brown.
CATTLE. A generic term for domestic quadrupeds; animals used by man for labor or food.
In its primary sense, it embraces horses, mares,
geldings, foals, or fillies, asses, and mules, as
well as animals of the ox kind or bovine species.
Bell v. Erie R. Co., 183 App.Div. 608, 171 N.Y.S.
341, 343. The term may also include goats, swine,
and sheep. Ash Sheep Co. v. U. S., 252 U.S. 159,
40 S.Ct. 241, 243, 64 L.Ed. 507. Calves running
with their mothers are cattle. Peterson v. Citizens' Bank of Stuart, 117 Neb. 327, 220 N.W. 575,
577.
In the narrower, popular sense, animals of the
bovine genus. State v. Eaglin, 148 La. 75, 86 So.
658, 659; Gragg v. State, 112 Neb. 732, 201 N.W.
338, 340. This is the sense in which the term is
generally used in the western United States, and
it is said further that it is not generally, but may
be, taken to mean calves, or animals younger than
yearlings. State v. District Court of Fifth Judicial Dist. in and for Nye County, 42 Nev. 218, 174
P. 1023, 1025.
CATTLE GATE. In English law. A customary
proportionate right of pasture enjoyed in common
with others. 34 E. L. & Eq. 511; 1 Term 137.
A right to pasture cattle in the land of another.
It is a distinct and several interest in the land,
passing by lease and release. 13 East, 159; 5
Taunt. 811.
CATTLEGUARD. A device to prevent cattle from
straying along a railroad-track at a highway-crossing. Heskett v. Railway Co., 61 Iowa, 467, 16 N.W.
525; True v. Maine Cent. R. Co., 113 Me. 375, 94
A. 183, 184.
CATTLE PASS. As used in a statute, a narrow
passage way under a railroad track high and wide
enough to admit the passage of a cow, horse, or
ox to and from a pasture. True v. Maine Cent.
R. Co., 113 Me. 375, 94 A. 183, 184.
CATTLE RANGE. Under a statute, a range the
usual and customary use of which has been for
cattle. State v. Butterfield, 30 Idaho 415, 165 P.
218, 219.
CATTLE RUSTLING. Stealing of bovine cattle,
Galeppi v. C. Swanston & Son, 107 Cal.App. 30,
290 P. 116, 119.
CAUCASIAN. Pertaining to the white race, to
which belong the greater part of European nations
and those of western Asia. Rice v. Gong Lum,
139 Miss. 760, 104 So. 105, 110. The term is inapplicable to denote families or stocks inhabiting
Europe, and speaking either the so-called Aryan or
Semitic languages. Ex parte Shahid, D.C.S.C., 205
F. 812, 814.
CAUCUS. A meeting of the legal voters of any
political party assembled for the purpose of choosing delegates or for the nomination of candidates
for office.
CAUDA TERR2E. A land's end, or the bottom of
a ridge in arable land. Cowell.
CAULCEIS. Highroads or ways pitched with flint
or other stones.
CAUPO. In the civil law. An innkeeper. Dig.
4, 9, 4, 5.
CAUPONA. In the civil law. An inn or tavern.
Inst. 4, 5, 3.
CAUPONES. In the civil law. Innkeepers. Dig.
4, 9; Id. 47, 5; Story, Ag. § 458.
CAURSINES. Italian merchants who came into
England in the reign of Henry III., where they
established themselves as money lenders, but were
soon expelled for their usury and extortion.
Cowell; Blount.
CAUSA.
In General
Lat. A cause, reason, occasion, motive, or inducement.
As Preposition
Used with the force of a preposition, it means
by virtue of, on account of. Also with reference
to, in contemplation of. Causa mortis, in anticipation of death.
Condition, etc.
A condition; a consideration; motive for performing a juristic act. Used of contracts, and
found in this sense in the Scotch law also. Bell.
In the Civil Law and in Old English Law
The word signified a source, ground, or mode
of acquiring property; hence a title; one's title
to property. Thus, "titulus est justa causa possidendi id quod nostrum est;" title is the lawful
ground of possessing that which is ours. 8 Coke,
153. See Mackeld.Rom.Law, §§ 242, 283.
In Old English Law
A cause; a suit or action pending. Causa testamentaria, a testamentary cause. Causa matrimonialis, a matrimonial cause. Bract. fol. 61.
In Old European Law
Any movable thing or article of property.
See "Cause."
CAUSA CAUSE EST CAUSA CAUSATI. The
cause of a cause is the cause of the thing caused.
12 Mod. 639. The cause of the cause is to be considered as the cause of the effect also. Freem. 329.
277
CAUSA
CAUSA CAUSANS. The immediate cause; the
last link in the chain of causation.
L.Rev. 201. For a distinction, however, between
immediate and proximate cause, see "Cause."
CAUSA CAUSANTIS, CAUSA EST CAUSATI.
The cause of the thing causing is the cause of the
effect. 4 Camp. 284; Marble v. City of Worcester,
4 Gray, Mass., 398.
CAUSA REI. In the civil law. Things accessory
or appurtenant. The accessions, appurtenances,
or fruits of a thing; comprehending all that the
claimant of a principal thing can demand from
a defendant in addition thereto, and especially
what he would have had, if the thing had not
been withheld from him. Inst. 4, 17, 3; Mackeld.
Rom.Law, § 166.
CAUSA DATA ET NON SECUTA. In the civil
law. Consideration given and not followed, that
is, by the event upon which it was given. The
name of an action by which a thing given in the
view of a certain event was reclaimed if that
event did not take place. Dig. 12, 4; Cod. 4, 6.
CAUSA ECCLESLZE PUBLICIS 2EQUIPARATUR;
ET SUMMA EST RATIO QUIE PRO RELIGIONE
FACIT. The cause of the church is equal to public
cause; and paramount is the reason which makes
for religion. Co.Litt. 341.
CAUSA ET ORIGO EST MATERIA NEGOTII.
The cause and origin is the substance of the thing;
the cause and origin of a thing are a material part
of it. The law regards the original act. 1 Coke,
99; Wing.Max. 41, Max. 21.
CAUSA HOSPITANDI. For the purpose of being
entertained as a guest. 4 Maule & S. 310.
CAUSA REMOTA. A remote or mediate cause; a
cause operating indirectly by the intervention of
other causes.
CAUSA SCIENTI2E PATET. The reason of the
knowledge is evident. A technical phrase in
Scotch practice, used in depositions of witnesses.
CAUSA SINE QUA NON. A necessary or inevitable cause; a cause without which the effect in
question could not have happened. Hayes v. Railroad Co., 111 U.S. 228, 4 S.Ct. 369, 28 L.Ed. 410.
A cause without which the thing cannot be. With
reference to negligence, it is the cause without
which the injury would not have occurred. Fisher v. Butte Electric Ry. Co., 72 Mont. 594, 235 P.
330, 332.
CAUSA JACTITATIONIS MARITAGII. A form
of action which anciently lay against a party who
boasted or gave out that he or she was married
to the plaintiff, whereby a common reputation of
their marriage might ensue. 3 Bla.Comm. 93.
See Jactitation of Marriage.
CAUSA TURPIS. A base (immoral or illegal)
cause or consideration.
CAUSA LIST. See Cause List.
CAUS1E DOTIS, VITIE, LIBERTATIS, FISCI
SUNT INTER FAVORABILIA IN LEGE. Causes
of dower, life, liberty, revenue, are among the
things favored in law. Co.Litt. 341.
CAUSA MATRIMONII PRLELOCUTI. A writ lying where a woman has given lands to a man in
fee-simple with the intention that he shall marry
her, and he refuses so to do within a reasonable
time, upon suitable request. Cowell. Now obsolete. 3 Bla.Comm. 183, n.
CAUSA MORTIS. In contemplation of approaching death.
CAUSA MORTIS DONATIO. See Donatio Mortis
Causa.
CAUSA PATET. The reason is open, obvious,
plain, clear, or manifest. A common expression
in old writers. Perk. c. 1, §§ 11, 14, 97.
CAUSA PROXIMA. The immediate, nearest, or
latest cause. The efficient cause; the one that necessarily sets the other causes in operation. Insurance Co. v. Boon, 95 U.S. 117, 130, 24 L.Ed. 395.
CAUSA PROXIMA NON REMOTA SPECTATUR.
An efficient adequate cause being found, it must
be considered the true cause unless some other
independent cause is shown to have intervened between it and the result. Mead v. Chickasha Gas
& Electric Co., 137 Oki. 74, 278 P. 286, 291. The
immediate (or direct), not the remote, cause, is
looked at, or considered. 12 East, 648; 3 Kent,
Comm. 302; Memphis & C. R. Co. v. Reeves, 10
Wall. 191, 19 L.Ed. 909; L. R. 1 C. P. 320; 4 Am.
CAUSA VAGA ET INCERTA NON EST CAUSA
RATIONABILIS. 5 Coke, 57. A vague and uncertain cause is not a reasonable cause.
CAUSAM NOBIS SIGNIFICES QUARE. A writ
addressed to a mayor of a town, etc., who was
by the king's writ commanded to give seisin of
lands to the king's grantee, on his delaying to do
it, requiring him to show cause why he so delayed
the performance of his duty. Blount; Cowell.
CAUSARE. In the civil and old English law. To
be engaged in a suit; to litigate; to conduct a
cause.
CAUSATOR. A litigant; one who takes the part
of the plaintiff or defendant in a suit.
In old European law. One who manages or
litigates another's cause. Spelman.
CAUSE, v. To be the cause or occasion of ; to
effect as an agent; to bring about; to bring into
existence; to make. La Page v. U. S., C.C.A.
Minn., 146 F.2d 536, 538, 156 A.L.R. 965; Huffman
v. U. S., C.C.A.Colo., 259 F. 35, 38; Shea v. U. S.,
C.C.A.Ohio, 251 F. 440, 447. To induce; to compel. Hill v. Montgomery, 352 Mo. 147, 176 S.W.
2d 284, 287.
CAUSE, n. (Lat. causa.) Each separate antecedent of an event, Griffin v. Anderson Motor Service Co., 227 Mo.App. 855, 59 S.W.2d 805, 808.
278
CAUSE OF ACTION
In Practice
A suit, litigation, or action. Any question, civil
or criminal, litigated or contested before a court
of justice.
Means, Metropolitan Life Ins. Co. v. Funderburk,
Tex.Civ.App., 81 S.W.2d 132, 137. Motive, In re
Canal Bank & 'trust Co.'s Liquidation, 178 La. 575,
152 So. 297, 298. Probable cause, State v. Brockman, 231 Wis. 634, 283 N.W. 338, 340. Producing
cause, Traders & General Insurance Co. v. Ray,
Tex.Civ.App., 128 S.W.2d 80, 84. Sum of antecedents of an event, Burns v. Eminger, 84 Mont. 397,
276 P. - 437, 442; Griffin v. Anderson Motor Service Co., 227 Mo.App. 855, 59 S.W.2d 805, 808. That
which produces an effect; whatever moves, impels or leads. Weinberg v. Richardson, 291 Ill.
App. 618, 10 N.E.2d 893; Merlo v. Public Service
Co. of Northern Illinois, 381 Ill. 300, 45 N.E.2d
S65, 675; State v. Craig, 161 S.C. 232, 159 S.E. 559,
560. The origin or foundation of a thing, as of
a suit or action; a ground of action. State v.
Dougherty, 4 Or. 203.
As used with reference to the removal of an officer or
employee, "cause" means a just, not arbitrary, cause ;
one relating to a material matter, or affecting the public
interest. Brokaw v. Burk, 89 N.J.Law, 132, 98 A. 11, 12;
a cause relating to and affecting administration of office
and of substantial nature directly affecting public's rights
and interests, State ex rel. Rockwell v. State Board of Education, 213 Minn. 184, 6 N.W.2d 251, 260, 143 A.L.R. 503.
Conduct indicating unworthy or illegal motives or improper administration of power, Voorhees v. Kopler, 239
App.Div. 83, 265 N.Y.S. 532, 533; Tappan v. Helena Federal Savings & Loan Ass'n of Helena, Ark., 193 Ark. 1023,
104 S.W.2d 458, 459; Zurich General Accident & Liability
Ins. Co. v. Kinsler, 12 Ca1.2d 98, 81 P.2d 913, 915; misfeasance or nonfeasance, Schoonover v. City of Viroqua, 244
Wis. 615, 12 N.W.2d 912, 914; As used in fraternal benefit
society by-law authorizing suspension of subordinate council and dissolution of its charter, "cause," means legal
cause or just cause, a substantial, reasonable, or just
cause. Wichita Council No. 120 of Security Ben. Ass'n v.
Security Ben. Ass'n, 138 Kan. 841, 28 P.2d 976, 979, 94
A.L.R. 629.
"Cause" and "consequence" are correlative terms. Kelsey v. Rebuzzini, 87 Conn. 556, 89 A. 170, 171, 52 L.R.A.,
N.S., 103; In re Benson, 178 Okl. 299, 62 P.2d 962, 965.
Clause for termination of employment for "any cause"
held to refer to cause justifying termination for employee's
breach of contract, not arbitrarily. Parsil v. Emery, 242
,App.Div. 653, 272 N.Y.S. 439, 440.
Statute permitting an award to be set aside for "cause"
means for good cause or some such cause as fraud or surprise, Elsenpeter v. Potvin, 213 Minn. 129, 5 N.W.2d 499,
501.
In Civil and Scotch Law
The consideration of a contract, that is, the
inducement to it, or motive of the contracting
party for entering into it. Dig. 2, 14, 7; Toullier,
liv. 3, tit. 3, c. 2, § 4; 1 Abb. 28; Bell, Dict.
The civilians use the term "cause," in relation to obligations, in the same sense as the word "consideration" is
used in the jurisprudence of England and the United
States. It means the motive, the inducement to the agreement,-id quod inducet ad contrahendum. Mouton v. Noble, 1 La. Ann. 192. But see Ames, 3 Sel.Essays in AngloAmer.Leg.Hist. 279; Poll.Contr. 74.
Used also in the civil law in the sense of res
(a thing). Non porcellum, non agnellum nec alia
causa (not a hog, not a lamb, nor other thing).
Du Cange.
In Pleading
Reason; motive; matter of excuse or justification. See S Co. 67; 11 East 451; 1 Chit.Pl. 585.
As used in venue statute, "cause" means "cause of action", which means the right which a party has to institute
a judicial proceeding. Bergin v. Temple, 111 Mont. 539,
111 P.2d 286, 289, 133 A.L.R. 1115.
Cause imports a judicial proceeding entire, and is nearly
synonymous with lis in Latin, or suit in English. "Case"
not infrequently has a more limited signification, importing a collection of facts, with the conclusion of law thereon. See Shirts v. Irons, 47 Ind. 445; Erwin v. U. S., D.C.
Ga., 37 Fed. 470, 2 L.R.A. 229. But "cause" and "case"
are often synonymous. Zilz v. Wilcox, 190 Mich. 486, 157
N.W. 77, 80; Schmalz v. Arnwine, 118 Or.,300. 246 P. 718,
719; Cheney v. Richards, 130 Me. 288, 155 A. 642, 644.
A distinction is sometimes taken between "cause" and
"action." Burrill observes that a cause is not, like an action or suit, said to be commenced, nor is an action, like
a cause, said to be tried. But, if there is any substantial
difference between these terms, it must lie in the fact that
"action" refers more peculiarly to the legal procedure of a
controversy ; "cause" to its merits or the state of facts
involved. Thus, we cannot say "the cause should have
been replevin." Nor would it be correct to say "the plaintiff pleaded his own action."
As to "Probable Cause" and "Proximate Cause,"
see those titles. As to challenge "for cause," see
"Challenge."
CAUSE-BOOKS. Books kept in the central office
of the English supreme court, in which are entered all writs of summons issued in the office.
Rules of Court, v 8.
CAUSE LIST. In English practice. A printed
roll of actions, to be tried in the order of their entry, with the names of the solicitors for each litigant. Similar to the calendar of causes, or docket, used in American courts.
CAUSE OF ACTION. A "cause of action" may
mean one thing for one purpose and something
different for another. Venezuelan Meat Export
Co. v. U. S., D.C.Md., 12 F.Supp. 379, 383; U. S. v.
Memphis Cotton Oil Co., Ct.C1., 288 U.S. 62, 53 S.
Ct. 278, 280, 77 L.Ed. 619.
It may mean : accident, Maryland Casualty Co. v.
Gerlaske, C.C.A.Tex., 68 F.2d 497, 499; act causing injury,
Fiscus v. Kansas City Public Service Co., 153 Kan. 493, 112
P.2d 83, 85; action, Wattman v. St. Luke's Hospital
Ass'n, 314 Ill.App. 244, 41 N.E.2d 314, 319; averment of
facts sufficient to justify a court in rendering a judgment,
Mobley v. Smith, 24 Ala.App. 553, 138 So. 551; Vickers v.
Vickers, 45 Nev. 274, 202 P. 31, '32; breach of contract or
agreement, Press v. Davis, Tex.Civ.App., 118 S.W.2d 982,
989, 990; breach of duty. Shapiro v. McCarthy, 279 Mass.
425, 181 N.E. 842, 844; case, Colla v. Carmichael U-Drive
Autos, 111 Cal.App. 378, 294 P. 378, 380; claim, Bishop v.
Jensen, 212 Wis. 30, 248, N.W. 771, 772; East Side Mill &
Lumber Co. v. Southeast Portland Lumber Co., 155 Or.
367, 64 P.2d 625, 627, 628; concept of law of remedies.
Rooney v. Maczko, 315 Pa. 113, 172 A. 151, 153; U. S. v.
Memphis Cotton Oil Co., Ct.C1., 288 U.S. 62, 53 S.Ct. 278,
280, 77 L.Ed. 619; concurrence of the facts giving rise to
enforceable claim, United States v. Standard Oil Co. of
California, D.C.Cal., 21 F.Supp. 645, 660; contract, Stone
Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568,
91 S.W.2d 674; demand, State v. Vincent, 152 Or. 205, 52
P.2d 203, 206; every fact which it is necessary to establish
to support right or obtain judgment, Beale v. Cherryhomes,
Tex.Civ.App., 21 S.W.2d 65, 66; Dublin Mill & Elevator
Co. v. Cornelius, Tex.Civ.App., 5 S.W.2d 1027, 1028; fact,
or a state of facts to which law, sought to be enforced
against a person or thing, applies. Gulf, C. & S. F. Ry. Co
v. Cities Service Co., D.C.Del., 270 F. 994, 995; Condor Pe-
279
CAUSE OF ACTION
troleum Co. v. Greene, Tex.Civ.App., 164 S.W.2d 713, 718;
Burns v. Duncan, 23 Tenn. App. 374, 133 S.W.2d 1000, 1004;
facts constituting wrong, Whalen v. Strong, 230 App.Div.
617, 246 N.Y.S. 40, 45; facts which give rise to one or
more relations of right-duty between two or more persons,
Elliott v. Mosgrove, 162 Or. 507, 93 P.2d 1070, 1072, 1073,
1076; failure to perform legal obligation to do, or refrain
from performance of, some act, In re Canfield's Will, 165
Misc. 66, 300 N.Y.S. 502; ground on which an action may
be maintained or sustained, ground or reason for an action, East Side Mill & Lumber Co. v. Southeast Portland
Lumber Co., 155 Or. 367, 64 P.2d 625, 627, 628. Juncture
of wrong and damage, City of Newport v. Rawlings, 289
Ky. 203, 158 S:W.2d 12, 14; legal duty and breach of duty,
Alford v. Zeigler, 65 Ga.App. 294, 16 S.E.2d 69, 74; legal
liability arising out of facts, White v. Nemours Trading
Corporation, D.C.Mass., 290 F. 250, 252; legal obligation,
Hartford Accident & Indemnity Co. v. Clegg, 103 Utah 414,
135 P.2d 919, 922, 923; legal right in plaintiff and duty in
defendant and violation or breach of right or duty, Evan's
v. Williams, 291 Ky. 484, 165 S.W.2d 52, 54; legal right of
action. Inhabitants of Town of Milo v. Milo Water Co.,
129 Me. 463, 152 A. 616, 617; legal right violated, Howard
v. Brown, 172 Okl. 308, 44 P.2d 959, 961; legal wrong
threatened or committed, Connor v. Williams, 187 S.C. 119,
197 S.E. 211, 214; matter for which action may be brought,
Ex parte Teeters, 130 Or. 631, 280 P. 660, 662; Williams v.
City of Dallas, Tex.Civ.App., 52 S.W.2d 373, 375; negligent
act or acts, Cox v. Wilkes-Barre R. Corporation, 334 Pa.
568, 6 A.2d 538, 539; obligation, United States v. Standard
Oil Co. of California, D.C.Cal., 21 F.Supp. 645, 660; occurrence which gives rise to litigation, Maryland Casualty
Co. v. Gerlaske, C.C.A.Tex., 68 F.2d 497, 499; particular
matter for which suit is brought, Severance v. Heyl &
Patterson, 115 Pa.Super. 36, 174 A. 787, 789; power to enforce obligation, Woods v. Cook, 14 Cal.App.2d 560, 58 P.2d
965, 966; primary right and corresponding duty and delict
or wrong, Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d
707, 714; redressible wrong, Meshek v. Cordes, 164 Okl. 40,
22 P.2d 921, 926 ; or breach of duty by defendant, Skalowski v. Joe Fisher, Inc., 152 S.C. 108, 149 S.E. 340, 344, 65 A.
L.R. 1427; American Nat. Ins. Co. v. Warnock, Tex.Civ.
App., 143 S.W.2d 624, 628; right of action or right of recovery, Williams v. City of Dallas, Tex.Civ.App., 52 S.W.
2d 373, 375 ; Graham v. Scripture, 26 How.Prac., N.Y., 501;
right to bring suit, Viers v. Webb, 76 Mont. 38, 245 P. 257,
259; Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316, 318;
right to enforce obligations. Woods v. Cook, 14 Cal.App.2d
560, 58 P.2d 965, 966; right to prosecute an action with
effect. Travelers' Ins. Co. v. Louis Padula Co., 224 N.Y. 397,
121 N.E. 398. 350; right to recover something from another,
Universal Oil Products Co. v. Standard Oil Co. of Indiana,
D.C.Mo., 6 F.Supp. 37, 39; right to relief in court, Kittinger v. Churchill Evangelistic Ass'n, 239 App.Div. 253, 267
N.Y.S. 719, 722; Mulligan v. Bond & Mortgage Guarantee
Co., 193 App.Div. 741, 184 N.Y.S. 429, 431; subject matter
of the controversy, Johnson v. Jordan, D.C.Okl., 22 F.Supp.
286, 289; subject-matter on which plaintiff grounds his
right of recovery, Zelen v. Domestic Industries, 131 Neb.
123, 267 N.W. 352, 354; East Side Mill & Lumber Co. v.
Southeast Portland Lumber Co., 155 Or. 367, 64 P.2d 625,
627, 628; that which creates necessity for bringing action,
Brevick v. Cunard S. S. Co., 63 N. D. 210, 247 N.W. 373,
375; that which produces or effects result complained of,
Jacobson v. Mutual Ben. Health & Accident Ass'n, 73 N.D.
108, 11 N.W.2d 442, 445, 446; unlawful violation of a right.
Keith v. Texas & P. R. Co., 14 La.App. 290, 129 So. 190,
194; violation or invasion of right, East Side Lumber &
Coal Co. v. Barfield, 193 Ga. 273, 18 S.E.2d 492, 496; wrong
committed or threatened, Criswell v. Criswell, 101 Neb.
349, 165 N.W. 302.
It may sometimes mean a person having a right of action. Thus, where a legacy is left to a married woman,
and she and her husband bring an action to recover it,
she is called in the old books the "meritorious cause of
action." 1 H.B1. 108.
A distinction may be taken between "cause of action"
and "right of action." Elliott v. Chicago, M. & St. P. Ry.
Co., 35 S.D. 57, 150 N.W. 777, 779. The cause of action
is distinct .from the "remedy." Tonn v. Inner Shoe Tire
Co., Tex.Civ.App., 260 S.W. 1078, 1080. And the cause of
action may exist, though the remedy does not. Chandler
v. Horne, 23 Ohio App. 1, 154 N.E. 748, 750.
Cause of action is not synonymous with chose in action.
Bank of Commerce v. Rutland & W. R. Co., 10 How.Prac.,
N.Y., 1. But under a Montana statute, If the relief sought
is the recovery of money or other personal property, the
cause of action is designated a "thing in action." State v.
District Court of Tenth Judicial Dist. in and for Fergus
County, 74 Mont. 355, 240 P. 667, 669.
CAUSE OF INJURY. That which actually produces it, Anderson v. Byrd, 133 Neb. 483, 275 N.
W. 825, 826.
CAUSE SUIT TO BE BROUGHT. Commence or
begin, State v. Osen, 67 N.D. 436, 272 N.W. 783,
784.
CAUSES CELEBRES. Celebrated cases. A work
containing reports of the decisions of interest and
importance in French courts in the seventeenth
and eighteenth centuries.
Secondarily a single trial or decision is often called a
"cause celébre," when it is remarkable on account of the
parties involved or the unusual, interesting, or sensational
character of the facts.
CAUSEWAY. A raised roadbed through low
lands; it differs from a levee. Board of Sup'rs of
Quitman County v. Carrier Lumber & Mfg. Co.,
103 Miss. 324, 60 So. 326, 327. See, also, ColemanFulton Pasture Co. v. Aransas County, Tex.Civ.
App., 180 S.W. 312, 313.
CAUSIDICUS. In the civil law. A speaker or
pleader; one who argued a cause ore tenus. See
"Advocate."
CAUTELA. Lat. Care; caution; vigilance; prevision.
CAUTI JURATORIA. See "Caution Juratory."
CAUTIO. In the Civil and French law. Security
given for the performance of any thing; bail; a
bond or undertaking by way of surety. Also the
person who becomes a surety.
In Scotch law. A pledge, bond, or other security for the performance of an obligation, or completion of the satisfaction to be obtained by a judicial process. Bell, Dict.; 6 Mod. 162.
CAUTIO FIDEJUSSORIA. Security by means of
bonds or pledges entered into by third parties.
Du Cange.
CAUTIO MUCIANA. Security given by an heir or
legatee, to obtain immediate possession of inheritance or legacy, for observance of a condition annexed to the bequest, where the act which is the
object of the condition is one which he must avoid
committing during his whole life, e. g., that he
will never marry, never leave the country, never
engage in a particular trade, etc. See Mackeld.
Rom.Law, § 705.
CAUTIO PIGNORATITIA. Security given by
pledge, or deposit, as plate, money, or other goods.
CAUTIO PRO EXPENSIS. Security for costs,
charges, or expenses.
CAUTIO USUFRUCTUARIA. Security, which
tenants for life give, to preserve the property
rented free from waste and injury. Ersk.Inst. 2,
9, 59.
280
CAVERE
cess, to stay the granting of a patent for lands. Ex parte
Crafts, 28 S.C. 281, 5 S.E. 718; In re McCahan's Estate,
221 Pa. 188, 70 A. 711; See, also, 1 Burn, Eccl.Law 19,
263; Nelson, Abr. ; Dane, Abr. ; Ayliffe, Parerg.; 3 Bla.
Comm. 246; 2 Chit.Pr. 502, note b; 3 Redf.Wills 119;
Poph. 133; 1 Sid. 371.
In patent law. A formal written notice to officers of the
patent-office, requiring them to refuse letters patent on a
particular invention or device to any other person, until
the party filing the caveat (called the "caveator") shall
have an opportunity to establish his claim to priority of
invention. The practice was abolished by act of June 25,
1910, c. 414, § 1, 36 Stat. 843.
CAUTION. In Scotch law, and in admiralty law.
Surety; security; bail; an undertaking by way of
surety. 6 Mod. 162. See Cautio. See also Prudence; Cautious.
To warn, exhort, to take heed, or give notice of
danger. Arnold v. United States, C.C.A.Colo., 94
F.2d 499, 501.
CAUTION JURATORY. In Scotch law. Security
given by oath. That which a suspender swears is
the best he can afford in order to obtain a suspension. Ersk.Pract. 4, 3, 6.
CAVEAT ACTOR. Let the doer, or actor, beware.
CAUTIONARY. In Scotch law. An instrument
in which a person binds himself as surety for another.
CAVEAT EMPTOR. Let the buyer beware (or
take care). Kellogg Bridge Co. v. Hamilton, 110
U.S. 108, 116, 3 S.Ct. 537, 28 L.Ed. 86.
CAUTIONARY JUDGMENT. Where an action in
tort was pending and the plaintiff feared the defendant would dispose of his real property before judgment, a cautionary judgment was entered with a lien on the property; Seisner v.
Blake, 13 Pa.Co.Ct.R. 333; so in an action on a
note against a religious association, where it was
alleged that the defendant was endeavoring to
sell its real estate before judgment on the note;
Witmer & Dundore v. Port Treverton Church, 17
Pa.Co.Ct.R. 38.
This maxim summarizes the rule that a purchaser
must examine, judge, and test for himself, Miller v. Tiffany, 1 Wall. 309, 17 L.Ed. 540; Hargous v. Stone, 5 N.Y.
82; Humphrey v. Baker, 71 Okl. 272, 176 P. 896; the purchaser at sheriff's sales must inform himself of extent of
judgment debtor's title, Brightwell v. First Nat. Bank, C.
C.A.Fla., 109 F.2d 271, 273; the purchaser takes risk of
quality and condition unless he protects himself by a warranty or there has been a false representation, State ex rel.
Jones Store Co. v. Shain, Mo., 179 S.W.2d 19, 20. There is
no warranty of title. McKnight v. Johnson, 236 Ky. 763,
34 S.W.2d 239, 240.
CAUTIONE ADMITTENDA. In English ecclesiastical law. A writ that lies against a bishop who
holds an excommunicated person in prison for
contempt, notwithstanding he offers sufficient caution or security to obey the orders and commandment of the church for the future. Reg.Orig. 66;
Cowell.
CAUTIONER. In Scotch law. A surety; a bondsman. One who binds himself in a bond with the
principal for greater security. He is still a cautioner whether the bond be to pay a debt, or
whether he undertake to produce the person of
the party for whom he is bound. Bell.
CAVEAT EMPTOR, Q1UI IGNORARE NON DEBUIT QUOD JUS ALIENUM EMIT. Hob. 99.
Let a purchaser beware, who ought not to be ignorant that he is purchasing the rights of another. Let a buyer beware; for he ought not to be
ignorant of what they are when he buys the rights
of another. Broom, Max. 768; Co.Litt. 132 a;
3 Taunt. 439; Sugd. V. & P. 328; 1 Story, Eq.Jur.
ch. 6.
CAVEAT TO WILL. A demand that will be produced and probated in open court. An attack
on validity of alleged will. Whitehurst v. Abbott,
225 N.C. 1, 33 S.E.2d 129, 132.
CAUTIONNEMENT. In French law. The same
as becoming surety in English law.
CAUTIONRY. In Scotch law. Suretyship.
CAUTIOUS. Careful; prudent. Horton v. New
York Cent. R. Co., 205 App.Div. 763, 200 N.Y.S.
365, 366.
The terms "cautious" and "prudent" may be used interchangeably in defining negligence. Malcolm v. Mooresville
Cotton Mills, 191 N.C. 727, 133 S.E. 7, 9. But "cautious"
differs from "prudent" in suggesting the idea of timidity,
with its secondary meaning as overprudent; fearful. People v. Anderson, 58 Cal.App. 267, 208 P. 324, 325. See
Prudence.
CAVEAT. Lat. Let him beware.
An intimation to a judge or officer notifying him to suspend a proceeding until merits of the caveat are determined. In re Phillips' Estate, 293 Pa. 351, 143 A. 9. A
formal notice or warning given by a party interested to a
court, judge, or ministerial officer against the performance
of certain acts within his power and jurisdiction. This
process may be used in the proper courts to prevent (temporarily or provisionally) the proving of a will or the
grant of administration, or to arrest the enrollment of a
decree in chancery when the party intends to take an appeal, to prevent the grant of letters patent, etc. It is also
used, in the American practice, as a kind of equitable pro-
CAVEAT VENDITOR.
In Roman law. A maxim, or rule, casting the
responsibility for defects or deficiencies upon the
seller of goods. See Hargous v. Stone, 5 N.Y. 73.
In English and American Jurisprudence. Caveat
venditor is sometimes used as expressing, in a
rough way, the rule which governs all those cases
of sales to which caveat emptor does not apply.
CAVEAT VIATOR. Let the wayfarer beware.
Broom, Max. 387, n.; 10 Exch. 774. This phrase
has been used as a concise expression of the duty
of a traveler on the highway to use due care to
detect and avoid defects in the way. Cornwell v.
Com'rs, 10 Exch. 771, 774.
CAVEATOR. One who files a caveat.
CAVENDUM EST A FRAGMENTIS. Beware of
fragments. Bac.Aph. 26.
CAVERE. Lat. In the civil and common law.
To take care; to exercise caution; to take care
or provide for; to provide by law; to provide
against; to forbid by law; to give security; to
give caution or security on arrest.
281
CAVERS
CAVERS. Persons stealing ore from mines in
Derbyshire, punishable in the berghmote or miners' court; also officers belonging to the same
mines. Wharton.
CAYA. In old English law. A quay, kay, key, or
wharf. Cowell.
CAYAGIUM. In old English law. Cayage or kayage; a toll or duty anciently paid the king for
landing goods at a quay or wharf. The barons
of the Cinque Ports were free from this duty.
Cowell.
CEAP. A bargain; anything for sale; a chattel;
also cattle, as being the usual medium of barter.
Sometimes used instead of ceapgild, (q. v.).
CEAPGILD. Payment or forfeiture of an animal.
An ancient species of forfeiture. Cowell.
CEASE. To stop; to become extinct; to pass
away; to come to an end. MacDonald v. /Etna
Indemnity Co., 90 Conn. 226, 96 A. 926, 927; Martin v. Gray, 193 Ark. 32, 97 S.W. 439, 441. Suspend or forfeit. Marks v. La Guardia, Sup., 31
N.Y.S.2d 336, 350. A cessation of activity. Huasteca Petroleum Co. v. Cia de Navegacao Lloyd
Brasileiro, D.C.N.Y., 297 F. 318, 321; In re Simpson, 62 Cal.App. 549, 217 P. 789, 790.
City of Macon v. Bunch, 156 Ga. 27, 118 S.E. 769, held
that a city detective, by being kept in jail for 31 days to
answer an indictment, did not cease to perform the duties
of his office so as to cause a vacancy therein.
CEASE TO DO BUSINESS. A going concern
ceases to do business when it sells all its property,
plant, assets of all kinds, including cash, and
the buyer takes possession. Van Oss v. Premier
Petroleum Co., 113 Me. 180, 93 A. 72, 77.
CEDE. To yield up; to assign; to grant. Generally used to designate the transfer of territory
from one government to another. Goetze v. United States, C.C.N.Y., 103 Fed. 72; Baltimore v.
Turnpike Road, 80 Md. 535, 31 A. 420.
CEDENT. In Scotch law. An assignor. One who
transfers a chose in action. Kames, Eq. 43.
CEDO. I grant. The word ordinarily used in
Mexican conveyances to pass title to lands. Mulford v. Le Franc, 26 Cal. 88, 108.
CEDULA.
In old English law. A schedule.
In Spanish law. An act under private signature, by which a debtor admits the amount of the
debt, and binds himself to discharge the same on
a specified day or on demand. Also the notice or
citation affixed to the door of a fugitive criminal
requiring him to appear before the court where
the accusation is pending.
CELDRA. In old English law, a chaldron. In old
Scotch law, a measure of grain, otherwise called
a "chalder." See 1 Karnes, Eq. 215.
CELEBRATION OF MARRIAGE. The formal act
by which a man and woman take each other for
husband and wife, according to law; the solemnization of a marriage. The term is usually applied
to a marriage ceremony attended with ecclesiastical functions. See Pearson v. Howey, 11 N.J.
Law, 19.
CELIBACY. The condition or state of life of an
unmarried person.
CELLERARIUS. A butler in a monastery; sometimes in universities called "manciple" or "caterer."
CEMETERY. A graveyard; burial ground. Peterson v. Stolz, Tex.Civ.App., 269 S.W. 113, 117;
Village of Villa Park v. Wanderer's Rest Cemetery Co., 316 Ill. 226, 147 N.E. 104, 105. Place or
area set apart for interment of the dead. City of
Wichita v. Schwertner, 130 Kan. 397, 286 P. 266,
268, Damon v. State, Tex.Com.App., 52 S.W.2d
368, 370.
Term includes not only lots for depositing the bodies of
the dead, but also avenues, walks, and grounds for shrubbery and ornamental purposes. Ex parte Adlof, 86 Tex.
Cr.R. 13, 215 S.W. 222, 223. Town of Blooming Grove v.
Roselawn Memorial Park Co., 231 Wis. 492, 286 N.W. 43,
45. A place of burial, differing from a churchyard by its
locality and incidents. Wharton. See Winters v. State, 9
Ind. 174; Cemetery Ass'n v. New Haven, 43 Conn. 243, 21
Am.Rep. 643.
Six or more human bodies being buried at one place constitutes the place a cemetery.
CEMETERY WORK. Platting, grading, planting,
beautifying, and maintaining a tract of land in
such manner as to render it a proper place for
sepulture of the dead, and to preserve it as such.
Rosedale Cemetery Ass'n v. Industrial Accident
Commission of California, 37 Cal.App. 706, 174
P. 351, 352.
CENDUL1E. Small pieces of wood laid in the
form of tiles to cover the roof of a house;
shingles. Cowell.
CENEGILD. In Saxon law. An expiatory mulct
or fine paid to the relations of a murdered person by the murderer or his relations. Spelman.
CENELLAZE. In old records. Acorns.
CENNINGA. A notice given by a buyer to a seller that the things which had been sold were
claimed by another, in order that he might appear
and justify the sale. Blount; Whishaw. But the
exact significance of this term is somewhat doubtful. Spelman, Gloss.
CENS. In French Canadian law. An annual tribute or due reserved to a seignior or lord, and imposed merely in recognition of his superiority.
Guyot, Inst. c. 9. The tens varies in amount and
CELATION. In medical jurisprudence. Conceal- in mode of payment. 2 Low.C. 40. See Censive;
Censitaire.
ment of pregnancy or delivery.
282
CEDULE. In French law. The technical name
of an act under private signature. Campbell
v. Nicholson, 3 La.Ann. 458.
CENTER
CENSARIA. In old English law. A farm, or
house and land let at a standing rent. Cowell.
CENSARII. In old English law. Farmers, or
such persons as were liable to pay a census, (tax.)
Blount; Cowell.
CENSERE. In the Roman law. To ordain; to decree. Dig. 50, 16, 111.
CENSITAIRE. In Canadian law. A tenant by
cens, (q. v.)
CENSIVE. In Canadian law. Tenure by cens,
(q. v.)
CENSO. In Spanish and Mexican law. An annuity. A ground rent. The right which a person
acquires to receive a certain annual pension, for
the delivery which he makes to another of a determined sum of money or of an immovable thing.
Civ.Code Mex. art. 3206. See Schm.Civil Law, 149,
309; White, New Recop. bk. 2, c. 7, § 4.
CENSO AL QUITAR. A redeemable annuity;
otherwise called "censo redimible." Trevino v.
Fernandez, 13 Tex. 630.
CENSO CONSIGNATIVO. A censo (q. v.) is
called "consignativo" when he who receives the
money assigns for the payment of the pension
(annuity) the estate the fee in which he reserves.
Civ.Code Mex. art. 3207.
CENSO ENFITEUTICO. In Spanish and Mexican
law. An emphyteutic annuity. That species of
censo (annuity) which exists where there is a
right to require of another a certain canon or
pension annually, on account of having transferred to that person forever certain real estate,
but reserving the fee in the land. The owner who
thus transfers the land is called the "censualisto,"
and the person who pays the annuity is called the
"censatario." Hall, Mex.Law, § 756; Hart v.
Burnett, 15 Cal. 557.
CENSO RESERVATIO. In Spanish and Mexican
law. The right to receive from another an annual
pension by virtue of having transferred land to
him by full and perfect title. Trevino v. Fernandez, 13 Tex. 655.
CENSORSHIP. The denial of right of "freedom
of the press" and of right of "freedom of speech",
and of all those rights and privileges which are
had under a free government. Esquire, Inc., v.
Walker, D.C.D.C., 55 F.Supp. 1015, 1020.
CENSUALES. In old European law. A species
of oblati or voluntary slaves of churches or monasteries; those who, to procure the protection of
the church, bound themselves to pay an annual
tax or quit-rent only of their estates to a church
or monastery.
CENSUMETHIDUS, or CENSUMORTHIDUS. A
dead rent, like that which is called "mortmain."
Blount; Cowell.
CENSURE. In ecclesiastical law. A spiritual
punishment.
It consists in withdrawing from a baptized person
( whether belonging to the clergy or the laity) a privilege
which the church gives him, or in wholly expelling him
from the Christian communion. The principal varieties of
censures are admonition, degradation, deprivation, excommunication, penance, sequestration, suspension. Phillim.
Ecc. Law, 1367.
A custom observed in certain manors in Devon and Cornwall, where all persons above the age of sixteen years are
cited to swear fealty to the lord, and to pay 11d. per poll,
and id. per annum.
CENSUS. The official counting or enumeration of
people of a state, nation or district, Huntington v.
Cast, 149 Ind. 255, 48 N.E. 1025; Republic v. Paris,
10 Hawaii, 581; Vale Independent Consol. School
Dist. No. 2 of Butte County v. School Dist. No. 71
of Meade County, 54 S.D. 207, 222 N.W. 948.
It is a finding of the population and not an "estimate." State ex rel. Reynolds v. Jost, 265 Mo. 51,
175 S.W. 591, 597, Ann.Cas.1917D, 1102.
In Roman law. A numbering or enrollment of
the people, with a valuation of their fortunes.
In old European law. A tax, or tribute; a toll.
Montesq. Esprit des Lois, liv. 30, c. 14.
CENSUS REGALIS. In English law. The annual
revenue or income of the crown.
CENT. A coin of the United States, the least in
value of those now minted. It is the hundredth
part of a dollar. Its weight is 48 gr., and it is cornposed of ninety-five per centum of copper and of
five per centum of tin and zinc in such proportions
as shall be determined by the Director of the
Mint. Act of Feb. 12, 1873, § 16. See Rev.Stat. §
3515, 31 U.S.C.A. § 317.
CENTAL. A weight of 100 pounds avoirdupois,
used at Liverpool for corn. Cent.Dict. Usually
called hundredweight in the United States.
CENTENA. A hundred. A district or division
containing originally a hundred freemen, established among the Goths, Germans, Franks, and
Lombards, for military and civil purposes, and
answering to the Saxon "hundred." Spelman; 1
Bl.Comm. 115.
Also, in old records and pleadings, a hundred
weight.
CENTENARII. Petty judges, under-sheriffs of
counties, that had rule of a hundred, (centena,)
and judged smaller matters among them. 1 Vent.
211.
CENTENI. The principal inhabitants of a centena, or district composed of different villages,
originally in number a hundred, but afterwards
only called by that name.
CENSUERE. In Roman law. They have decreed.
The term of art, or technical term for the judgCENTER. This term is often used, not in its strict
ment, resolution, or decree of the senate. Tayl.
sense of a geographical or mathematical center,
Civil Law, 566.
but as meaning the middle or central point or
283
CENTER
portion of anything. Bass v. Harden, 160 Ga. 400,
128 S.E. 397, 400; Hill v. Ralph, 165 Ark. 524, 265
S.W. 57, 58; Darnell v. Ransdall, Mo.App., 277
S.W. 372, 373.
The center of a section of land is the intersection of a
straight line from the north quarter corner to the south
quarter corner with a straight line from the east quarter
corner to the west quarter corner. Lunz v. Sandmeier's
Estate, 172 Minn. 338, 215 N.W. 426. Similarly, the center
of a street intersection refers to the point where the center
lines of the two streets cross. Thrush v. Lingo Lumber
Co., Tex.Civ.App., 262 S.W. 551, 552. The edges of the
hardened surface of a road constitute the "bounds of the
highway" in determining "center" of highway at an intersection. Decker v. Roberts, 126 Conn. 478, 12 A.2d 541, 543.
The center of the main channel of a river, is the middle
of broad and distinctly defined bed of main river, Hill
City Compress Co. v. West Kentucky Coal Co., 155 Miss. 55,
122 So. 747, 748.
CENTESIMA, In Roman law. The hundredth
part.
Usurice centesimce. Twelve per cent. per annum; that
is, a hundredth part of the principal was due each month,
—the month being the unit of time from which the Romans
reckoned interest. 2 Bl.Comm. 462, note.
CENTIME. The name of a denomination of
French money, being the one-hundredth part of
a franc.
CENTRAL CRIMINAL COURT. Since 1834, an
English court, having jurisdiction for the trial of
crimes and misdemeanors committed in London
and certain adjoining parts of Kent, Essex, and
Sussex, and of such other criminal cases as may
be sent to it out of the king's bench superseded the
"Old Bailey."
CENTRAL OFFICE. The central office of the supreme court of judicature in England is the office
established in pursuance of the recommendation
of the legal departments commission in order to
consolidate certain offices. It is divided into
departments. Sweet.
CENTRAL STATION. A plant at which electric
current is generated to supply consumers. People ex rel. Taylor v. Walsh, 140 Misc. 25, 248
N.Y.S. 753, 757.
CENTRAL TRAFFIC CONTROL. A system of
railroad operation for directing the movement of
trains by signals controlled from a central point.
Van Schaick v. McCarthy, C.C.A.Colo., 116 F.2d
987, 990.
CENTRAL VISION. The exact and clear vision
of the thing one looks directly at. Baugh v. Glassell-Rogers Drilling Co., La.App., 190 So. 130, 132.
CENTURY. One hundred. A body of one hundred men. The Romans were divided into centuries as the English were divided into hundreds.
Also a cycle of one hundred years.
CEORL. In Anglo Saxon law. A class of freemen personally free, but possessing no landed
property. Guizot, Rep.Govt.
A tenant at will of free condition, who held
land of the thane on condition of paying rent
or services. Cowell.
A freeman of inferior rank occupied in husbandry. Spelman.
Under the Norman rule, this term, as did others which
denoted workmen, especially those which applied to the
conquered race, became a term of reproach, as is indicated
by the popular signification of churl. Cowell; 1 Poll. &
Maitl. 8; 2 id. 458.
CEP'. Lat. I have taken. This word was of frequent use in the returns of sheriffs when they
were made in Latin, and particularly in the return
to a writ of capias.
The full return (in Latin) to a writ of copies was commonly made in one of the following forms : Cepi corpus,
I have taken the body, 1. e., arrested the body of the defendant; Cepi corpus et bail, I have taken the body and released the defendant on a bail-bond; Cepi corpus et cornmittitur, I have taken the body and he has been committed
(to prison) ; Cepi corpus et est in custodia, I have taken
the defendant and he is in custody; Cepi corpus et est
languidus, I have taken the defendant and he is sick, i. e.,
so sick that he cannot safely be removed from the place
where the arrest was made; Cepi corpus et paratum habeo,
I have taken the body and have it (him) ready, I. e., in custody and ready to be produced when ordered.
CEPIT.
In civil practice. He took. This was the characteristic word employed in (Latin) writs of trespass for goods taken, and in declarations in trespass and replevin.
Replevin in the cepit is a form of replevin which is
brought for carrying away goods merely. Wells, Repl.
53; Ford v. Ford, 3 Wis. 399.
In criminal practice. A technical word necessary
in an indictment for larceny. The charge must
be that the defendant took the thing stolen with
a felonious design. Bac.Abr. "Indictment," G, 1.
CEPIT ET ABDUXIT. He took and led away.
The emphatic words in writs in trespass or indictments for larceny, where the thing taken was a
living chattel, i. e., an animal.
CEPIT ET ASPORTAVIT. He took and carried
away. Applicable in a declaration in trespass or
an indictment for larceny where the defendant
has carried away goods without right. 4 Bl,
Comm. 231.
CENTRALIZATION. The system of government
in a country where management of local matters
is in the hands of functionaries appointed by the
ministers of state, paid by the state, and in constant communication and under the constant control and inspiration of the ministers of state, and
where the funds of the state are largely applied
to local purposes. Wharton.
CEPIT IN ALIO LOCO. In pleading. A plea in
replevin, by which the defendant alleges that he
took the thing replevied in another place than that
mentioned in the declaration. 1 Chit.P1. 490;
Rast.Entr. 554, 555; Morris, Repl. 141; Wells
Repl. § 707.
CENTUMVIRI. In Roman law. The name of an
important court consisting of a body of one hundred and five judges. 3 Bla.Comm. 515.
CEPPAGIUM. In old English law. The stump:
or roots of trees which remain in the ground after
the trees are felled. Fleta, lib. 2, c. 41, § 24.
284
CERTIFICATE
CERA, or CERE. In old English law. Wax; a
seal.
CERA IMPRESSA. Lat. An impressed seal.
It may include an impression made on wafers or other
adhesive substances capable of receiving an impression, or
even paper. Pierce v. Indseth, 106 U.S. 546, 1 S.Ct. 418, 27
L. Ed. 254.
CERAGRUM. In old English law. A payment to
provide candles in the church. Blount.
CEREVISA. In old English law. Ale or beer.
CERT MONEY. In old English law. Head money
or common fine. Money paid yearly by the residents of several manors to the lords thereof, for
the certain keeping of the leet, (pro certo letce;)
and sometimes to the hundred. Blount; 6 Coke,
78; Cowell.
CERTA DEBET ESSE INTENTIO, ET NARRATIO, ET CERTUM FUNDAMENTUM, ET CERTA
RES QUIE DEDUCITUR IN JUDICIUM. The design and narration ought to be certain, and the
foundation certain, and the matter certain, which
is brought into court fo be tried. Co.Litt. 303a.
CERTA RES. In old English law. A certain
thing. Fleta, lib. 2, c. 60, §§ 24, 25.
CERTAIN. Ascertained; precise; identified; definitive; clearly known; unambiguous; or, in law,
capable of being identified or made known, without liability to mistake or ambiguity, from data
already given. Losecco v. Gregory, 108 La. 648,
32 So. 986; White v. Wadhams, 204 Mich. 381, 170
N.W. 60, 62. Not specifically named; indeterminate, indefinite; one or some. Wilhite v. Armstrong, 328 Mo. 1064, 43 S.W.2d 422, 423. Some
among possible others, In re Mineral Lac Paint
Co., D.C.Pa., 17 F.Supp. 2. That which may be
made certain. Brown v. City of Shreveport, La.
App., 15 So.2d 234, 236; Singer v. Campbell, 217
Ky. 830, 290 S.W. 667, 668; Civ.Code La. art. 3556;
Lee v. Pearson, La.App., 143 So. 516, 518.
CERTAIN SERVICES. In feudal and old English
law. Such services as were stinted (limited or defined) in quantity, and could not be exceeded on
any pretense; as to pay a stated annual rent, or
to plow such a field for three days. 2 Bl.Comm.
61.
CERTAINTY. Absence of doubt. Bennett v. McKrell, Tex.Civ.App., 125 S.W.2d 701, 707.
In Pleading
Distinctness; clearness of statement; particularity.
Such precision and explicitness in the statement of alleged facts that the pleader's averments and contention
may be readily understood by the pleader on the other
side, as well as by the court and jury. State v. Burke, 151
Mo. 143, 52 S. W. 226.
This word is technically used in pleading In two different
senses, signifying either distinctness, or particularity, as
opposed to undue generality.
Certainty is said to be of three sorts : (1) Certainty to a
common intent is such as is attained by using words in
their ordinary meaning, but is not exclusive of another
meaning which might be made out by argument or inference. See 2 H.Bla. 530; Andr.Steph.Pl. 384. (2) Certainty to a certain intent in general is that which allows
of no misunderstanding if a fair and reasonable construction is put upon the language employed, without bringing
in facts which are possible, but not apparent. 1 Wms.
Saund. 49; Fuller v. Hampton, 5 Conn. 423. (3) Certainty
to a certain intent in particular is the highest degree of
technical accuracy and precision. Co.Litt. 303; 2 H.B1.
530; State v. Parker, 34 Ark. 158, 36 Am.Rep. 5; Lawes,
Pl. 54. These definitions, which have been adopted from
Coke, have been subjected to severe criticism, but are of
some utility in drawing attention to the different degrees
of exactness and fulness of statement required in different
instances. 13 East, 112; 3 Maule & S. 14; People v. Dunlap, 13 Johns., N.Y., 437.
In Contracts
The quality of being specific, accurate, and distinct. As to uncertainty of contract, see Davie v.
Min. Co., 93 Mich. 491, 53 N.W. 625, 24 L.R.A. 357;
Van Schaick v. Van Buren, 70 Hun, 575, 24 N.Y.S.
306.
A thing is certain when its essence, quality, and quantity
are described, distinctly set forth, etc. Dig. 12, 1, 6. It is
uncertain when the description is not that of an individual
object, but designates only the kind. Civ.Code La. art.
3556, par. 7; 5 Coke, 121.
In Determining Negotiability of Instrument
That is certain which may be rendered certain;
a commercial, and not mathematical, certainty.
Gerrish v. Atlantic Ice & Coal Co., C.C.A.Ga., 80 F.
2d 648, 650,
CERTIFICANDO DE RECOGNITIONE STAPULIE. In English law. A writ commanding the
mayor of the staple to certify to the lord chancellor a statute-staple taken before him where the
party himself detains it, and refuses to bring in
the same. There is a like writ to certify a statute-merchant, and in divers other cases. Reg.Orig.
148, 151, 152.
CERTIFICATE. A document in use in the English customhouse. No goods can be exported by
certificate, except foreign goods formerly imported, on which the whole or a part of the customs
paid on importation is to be drawn back. Wharton.
A ticket. Hall v. U. S., D.C.Cal., 10 F.Supp. 739,
740.
A warrant. Graham v. State, 123 Tex.Cr.R.
121, 57 S.W.2d 850, 854.
A written assurance, or official representation,
that some act has or has not been done, or some
event occurred, or some legal formality been complied with.
A written assurance made or issuing from some court,
and designed as a notice of things done therein, or as a
warrant or authority, to some other court, judge, or officer. People v. Foster, 27 Misc.Rep. 576, 58 N.Y.S. 574; U.
S. v. Ambrose, 108 U.S. 336, 2 S.Ct. 682, 27 L. Ed. 746. A
statement of some fact in a writing signed by the party
certifying. Nowell v. Mayor and Council of Monroe, 177
Ga. 648, 171 S.E. 136, 141. A declaration in writing. Ballen
& Friedman v. Bank of Krenlin, 37 Okl. 112, 130 P. 539,
540, 44 L.R.A.,N.S., 621. A "certificate" by a public officer is a statement written and signed, but not necessarily
or customarily sworn to, which is by law made evidence of
the truth of the facts stated for all or for certain purposes.
State v. Abernethy, 190 N.C. 768, 130 S.E. 619, 620.
285
CERTIFICATE
A writing by which testimony is given that a fact has or
has not taken place. Laclede Land & Improvement Co. v.
Morten, 183 Mo.App. 637, 167 S.W. 658.
CERTIFICATE FOR COSTS. In English practice.
A certificate or memorandum drawn up and
signed by the judge before whom a case was tried,
setting out certain facts the existence of which
must be thus proved before the party is entitled,
under the statutes, to recover costs.
CERTIFICATE INTO CHANCERY. In English
practice. This is a document containing the opinion of the common-law judges on a question
of law submitted to them for their decision by the
chancery court.
CERTIFICATE LANDS. In Pennsylvania, in the
period succeeding the revolution, lands set apart
in the western portion of the state, which might be
bought with the certificates which the soldiers of
that state in the revolutionary army had received
in lieu of pay. Cent. Dict.
CERTIFICATE OF ACKNOWLEDGMENT. The
certificate of a notary public, justice of the peace,
or other authorized officer, attached to a deed,
mortgage, or other instrument, setting forth that
the parties thereto personally appeared before
him on such a date and acknowledged the instrument to be their free and voluntary act and deed.
Read v. Loan Co., 68 Ohio St. 280, 67 N.E. 729, 62
L:R.A. 790. A verification of the act of the maker
of an instrument. Thane v. Dallas Joint Stock
Land Bank of Dallas, Tex.Civ.App., 129 S.W.2d
795, 799.
CERTIFICATE OF ASSIZE. A writ granted for
the re-examination or retrial of a matter passed
by assize before justices. Fitzh:Nat.Brev. 181. It
is now entirely obsolete. 3 Bla.Comm. 389. Consult, also, Comyns, Dig. Assize ( B, 27, 28).
CERTIFICATE OF DEPOSIT. A written acknowledgment by a bank or banker of a deposit
with promise to pay to depositor, to his order, or
to some other person or to his order, Wheelock
v. Cantley, 227 Mo.App. 102, 50 S.W.2d 731, 734;
Mariland Finance Corporation v. People's Bank
of Keyser, 99 W.Va. 230, 128 S.E. 294, 295. A
bank's promissory note, Dickenson v. Charles, 173
Va. 393, 4 S.E.2d 351, 353.
Documents showing deposits in building and
loan association in form of passbooks or any other appropriate written recital. Alter v. Security
Building & Loan Co. of Defiance, 58 Ohio App.
114, 16 N.E.2d 228, 233.
CERTIFICATE OF DONATION. A permit or
right granted certificate holder to enter upon land
belonging to state to make improvements required
by law. Young v. Pumphrey, 191 Ark. 98, 83 S.W.
2d 84, 86.
CERTIFICATE OF EVIDENCE. Practically synonymous with bill of exceptions. Yott v. Yott, 257
Ill. 419, 100 N.E. 902, 903.
CERTIFICATE OF HOLDER OF ATTACHED
PROPERTY. A certificate required by statute, in
some states, to be given by a third person who is
found in possession of property subject to an attachment in the sheriff's hands, setting forth the
amount and character of such property and the
nature of the defendant's interest in it. Code Civil
Proc.N.Y. § 650, Civil Practice Act; § 918.
CERTIFICATE OF INCORPORATION. The instrument by which a private corporation is
formed, under general statutes, executed by several persons as incorporators and filed in some
designated public office as evidence of corporate
existence. This is properly distinguished from a
"charter," which is a direct legislative grant of
corporate existence and powers to named individuals.
CERTIFICATE OF INDEBTEDNESS. An obligation sometimes issued by corporations having
practically the same force and effect as a bond,
though not usually secured on any specific property. Christie v. Duluth, 82 Minn. 202, 84 N.W.
754. It may, however, create a lien on all the
property of the corporation issuing it, superior to
the rights of general creditors. Jefferson Banking Co. v. Trustees of Martin Institute, 146 Ga. 383,
91 S.E. 463, 466.
CERTIFICATE OF INTEREST. An instrument
evidencing a fractional or percentage interest in
oil and gas production. People v. Sidwell, 27 Cal.
2d 121, 162 P.2d 913, 915.
CERTIFICATE OF OCCUPANCY. A paper certifying that premises complied with provisions of
zoning ordinance. Frank J. Durkin Lumber Co.
v. Fitzsimmons, 106 N.J.Law, 183, 147 A. 555, 557.
CERTIFICATE OF PREFERRED STOCK. Certificate that person is registered holder of designated number of shares of preferred capital stock.
Cring v. Sheller Wood Rim Mfg. Co., 98 Ind.App.
310, 183 N.E. 674, 677.
CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY. A license or permit to use
highways for stated purposes. Railroad Commission of Texas v. Southwestern Greyhound Lines,
Tex.Civ.App., 92 S.W.2d 296, 301, 302.
CERTIFICATE OF PURCHASE. A certificate issued by public officer to successful bidder at a
judicial sale (such as a tax sale), which will entitle him to a deed upon confirmation of sale by
the court, or (as the case may be) if the land is
not redeemed within the time limited. Lightcap
v. Bradley, 186 Ill. 510, 58 N.E. 221.
CERTIFICATE OF REGISTRY. In maritime law.
A certificate of the registration of a vessel according to the registry acts, for the purpose of giving
her a national character. 3 Steph.Comm. 274; 3
Kent, Comm. 139-150.
CERTIFICATE OF SALE. The same as "certificate of purchase," supra.
286
CERTIORARI
CERTIFICATE OF STOCK. A certificate of a corporation or joint-stock company that named person is owner of designated number of shares of
stock. Gibbons v. Mahon, 136 U.S. 549, 10 S.Ct.
1057, 34 L.Ed. 525; Edwards v. Wabash Ry. Co.,
C.C.A.N.Y., 264 F. 610, 613. A written instrument
stating or acknowledging that named person is
owner of designated number of shares of stock.
It is merely written evidence of ownership of
stock, and of the rights and liabilities resulting
from such ownership. It is merely a paper representation of an incorporeal right, and stands On the
footing similar to that of other muniments o/
title. Whitehead v. Gormley, 116 Okl. 287, 245
P. 562, 565, 47 A.L.R. 171; Misenheimer v. Alexan.
der, 162 N.C. 226, 78 S.E. 161, 164; Home for Des.
titute Crippled Children v. Boomer, 308 Ill.App,
170, 31 N.E.2d 812, 820; Warren v. New Jersey
Zinc Co., N.J.Ch., 116 N.J.Eq. 315, 173 A. 128, 132.
The certification of a check is a statement of fact,
amounting to an estoppel of the bank to deny liability,
Bank of Bay Biscayne v. Ball. 99 Fla. 745, 128 So. 491, 492.
A warranty that sufficient funds are on deposit and have
been set aside. World Exchange Bank v. Commercial Casualty Ins. Co., 255 N.Y. 1, 173 N.E. 902, 904. It means that
bank holds money to pay check and is liable to pay it to
proper party. Sundial Const. Co. v. Liberty Bank of
Buffalo, 277 N.Y. 137, 13 N.E.2d 745, 746.
CERTIFIED COPY. A copy of a document or
record, signed and certified as a true copy by the
officer to whose custody the original is intrusted.
People v. Foster, 27 Misc. 576, 58 N.Y.Supp. 574;
Ehrlich v. Mulligan, 104 N.J.Law, 375, 140 A. 463,
465, 57 A.L.R. 596.
CERTIFIED PUBLIC ACCOUNTANT. A trained
accountant who examines the books of accounts
of corporations and others and reports upon them.
CERTIFY. To testify in writing; to make known
or establish as a fact. Smith v. Smith, Ind.App.,
110 N.E. 1013, 1014. To vouch for a thing in writing. State ex inf. Carnahan ex rel. Webb v.
Jones, 266 Mo. 191, 181 S.W. 50, 52. To give a
certificate, or to make a declaration about a writing. Ainsa v. Mercantile Trust Co. of San Francisco, 174 Cal. 504, 163 P. 898, 901. To warrant.
Ettman v. Federal Life Ins. Co., D.C.Mo., 48 F.
Supp. 578, 580.
CERTIFICATE SENT TO 1 B. Notation reading
"Certificate Sent to 1 B" meant that certificate
was to be sent to single beneficiary if war risk insurance application should be accepted. McCormack v. U. S., C.C.A.N.Y., 66 F.2d 519, 521.
CERTIFICATE, TRIAL BY. A mode of trial now
little in use; it is resorted to in cases where the
fact in issue lies out of the cognizance of the court,
and the judges, in order to determine the question,
are obliged to rely upon the solemn averment or
information of persons in such a station as affords them the clearest and most competent
knowledge of the truth. Brown.
CERTIORARI. Lat. (To be informed of, to be.
made certain in regard to.) The name of a writ
of review or inquiry. Leonard v. Willcox, 101 Vt.
195, 142 A. 762, 766; Nissen v. International
Brotherhood of Teamsters, Chauffeurs, Stablemen
& Helpers of America, 229 Iowa 1028, 295 N.W.
858.
CERTIFICATION, In Scotch practice. This is
the assurance given to a party of the course to
be followed in case he does not appear or obey
the order of the court.
CERTIFICATION OF ASSIZE. In English practice. A writ anciently granted for the re-examin.
ing or retrial of a matter passed by assize before
justices, now entirely superseded by the remedy
afforded by means of a new trial. See Certificate
of Assize.
CERTIFICATS DE COUTUME. In French law.
Certificates given by a foreign lawyer, establishing the law of the country to which he belongs
upon one or more fixed points. These certificates
can be produced before the French courts, and are
received as evidence in suits upon questions of
foreign law. Arg.Fr.Merc.Law, 548.
CERTIFIED CARRIERS. Carriers using highways of state to whom certificates of public convenience and necessity have been issued. People
v. Henry, 131 Cal.App. 82, 21 P.2d 672.
CERTIFIED CHECK. A depositor's check recognized and accepted by bank officer as valid appropriation of the amount specified and as drawn
against funds held by bank.
The usual method of certification is for cashier or teller
to write across face of check, over his signature, statement that it is good when properly indorsed. See McAdoo
v. Farmers' State Bank of Zenda, 106 Kan. 662, 189 P. 155,
156; Bathgate v. Exchange Bank of Chula, 199 Mo.App.
583, 205 S. W. 875, 876.
Certiorari Is an appellate proceeding for re-examination
of action of inferior tribunal or as auxiliary process to
enable appellate court to obtain further information in
pending cause, Shapleigh Hardware Co. v. Brumfield, 159
Miss. 175, 130 So. 98. A writ directed only to an inferior
tribunal, Stewart v. Johnston, C.C.A.Cal., 97 F.2d 548. It
is a discretionary writ, Lennon v. School Dist. No. 11,
Greer County, 189 Okl. 37, 113 P.2d 382, 384. Issued only
for good cause on showing negativing laches in prosecuting
appeal, In re Snelgrove, 208 N.C. 670, 182 S.E. 335, 336. It
is available for review of official, judicial or quasi judicial
actions. State v. Canfield, 166 Minn. 414, 208 N.W. 181;
People ex rel. Elmore v. Allman, 382 Ill. 156, 46 N.E.2d 974,
975. It brings into superior court the record of the administrative or inferior judicial tribunal for inspection,
Murphy v. Cuesta, Rey & Co., 381 Ill. 162, 45 N.E.2d 26, 28.
It lies as a substitute for an appeal, Pue v. Hood, 222 N.C.
310, 22 S.E.2d 896, 898. To correct errors of law, Dube v.
Mayor of City of Fall River, 308 Mass. 12, 30 N.E.2d 817,
818; to restrain excesses of jurisdiction, Stacy v. Mayor of
City of Haverhill, 317 Mass. 188, 57 N.E.2d 564. To review
erroneous or unwarranted acts or proceedings, State ex rel.
Allen v. Rose, 123 Fla. 544, 167 So. 21, 24. To review questions of law, Public Welfare Commission v. Civil Service
Commission, 289 Mich. 101, 286 N.W. 173, 175. Where circumstances are so exceptional that an immediate review isin interest of justice, Vingi v. Read, 68 R.I. 484, 29 A.2d
637, 639; where judgment is a miscarriage of justice or
will result in substantial injury to legal rights, Goodkind
v. Wolkowsky, 151 Fla. 62, 9 So.2d 553, 562; or where
applicant for writ lost right of appeal through no fault of
his own, McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448,
451. It lies to determine whether inferior tribunal acted
within or abused or exceeded jurisdiction, Brundage v.
O' Berry, 101 Fla. 320, 134 So. 520, 521; Pierce v. Green,
229 Iowa 22, 294 N.W. 237, 253, 131 A.L.R. 335; or proceeded illegally, Board of Zoning Appeals of City of Indianapolis v. Waintrup, 99 Ind.App. 576, 193 N.E. 701, 705;
or proceeded regularly, In re Revocation of Restaurant
287
CERTIORARI
Liquor License No. R-8981, Issued to John Mami, 144
Pa.Super. 285, 19 A.2d 549, 552; or whether judgment is
prejudicial and materially harmful, Jacksonville American
Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So.
672, 674. It performs the office of the common-law writ of
error, Berry v. Recorder's Court of Town of West Orange,
124 N.J.L. 385, 11 A.2d 743, 745. Limited review only is
involved in the writ, Brundage v. O'Berry, 101 Fla. 320, 134
So. 520, 521. Quashal of record or proceeding is the only
relief available, State ex rel. St. Louis County v. Evans, 346
Mo. 209, 139 S.W.2d 967, 969.
Originally, and in English practice, an original writ commanding judges or officers of inferior courts to certify or
to return records or proceedings in a cause for judicial
review of their action. Jacob; Ashworth v. Hatcher, 98
W.Va. 323, 128 S.E. 93. For other common-law definitions,
see F. N. B. 554 A; Bac.Abr. 162, 168, citing 4 Burr. 2244;
In re Dance, 2 N. D. 184, 49 N.W. 733, 33 Am.St.Rep. 768.
In Florida the writs of "certiorari" in use are the common-law writs, the statutory writ to review judgments of
civil courts of record, the rule certiorari to review interlocutory appeals in equity, the rule certiorari for supplying omitted parts of records on appeals or writs of error,
and writs of certiorari issued to review quasi judicial judgments or orders of quasi judicial bodies or officers. Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541, 544, 545.
In Massachusetts it is a writ by the supreme judicial
court commanding inferior tribunal to certify and return
its records in a particular case that any errors or irregularities which appear in the proceedings may be corrected.
Pub.St.Mass.1882, p. 1288; Coolidge v. Bruce, 249 Mass.
465, 144 N.E. 397.
In Texas, the ordinary office of writ of "certiorari" is to
perfect the record on appeal. Rev.St.1925, art. 932. Zamora v. Garza, Tex.Civ.App., 117 S.W.2d 165.
In somes states the writ has been abolished by statute
so far as the common-law name is concerned, but the
remedy is preserved under the new name of "writ of
review" ; Southwestern Telegraph & Telephone Co. v.
Robinson, Tex., 1 C.C.A. 91, 48 F. 771.
CERTIORARI, BILL OF. In English chancery
practice. An original bill praying relief. It was
filed for the purpose of removing a suit pending in
some inferior court of equity into the court of
chancery, on account of some alleged incompetency or inconvenience.
or the heir apparent to the Russian throne. 6
New Internatl.Encyc. 420.
CESAREVNA. In Imperial Russia, the title of
the wife of the cesarevitch, or heir apparent. 6
New Internatl.Encyc. 420.
CESIONARIO. In Spanish law. An assignee.
White, New Recop. b. 3, tit. 10, c. 1, § 3.
CESS, v. In old English law. To cease, stop,
determine, fail.
CESS, n. An assessment or tax. In Ireland, it
was anciently applied to an exaction of victuals,
at a certain rate, for soldiers in garrison.
CESSA REGNARE, SI NON VIS JUDICARE.
Cease to reign, if you wish not to adjudicate.
Hob. 155.
CESSANTE CAUSA, CESSAT EFFECTUS. The
cause ceasing, the effect ceases. Broom, Max.
160; 1 Exch. 430.
CESSANTE RATIONE LEGIS, CESSAT ET IPSA
LEX. The reason of the law ceasing, the law itself also ceases. Broom, Max. 159; 4 Co. 38; Appeal of Cummings, 11 Pa. 273; Nice's Appeal, 54
Pa. 201. See Dig. 35, 1, 72, 6.
CESSANTE STATU PRIMITIVO, CESSAT DERIVATIVUS. When the primitive or original estate determines, the derivative estate determines
also. 8 Coke, 34; Broom, Max. 495; 4 Kent 32.
CESSARE. L. Lat. To cease, stop, or stay.
CERTIORARI FACIAS. Cause to be certified.
The command of a writ of certiorari.
CERTUM EST QUOD CERTUM REDDI POTEST.
That is certain which can be rendered certain.
Co.Litt. 45 b, 96 a, 142 a; 2 Bla.Comm. 143;' 2 M.
& S. 50; 3 Term 463; 3 M. & K. 353; President,
etc., of Lechmere Bank v. Boynton, 11 Cush.,
Mass., 380.
CERURA. A mound, fence, or inclosure.
CERVISARII. In Saxon law. Tenants who were
bound to supply drink for their lord's table.
Cowell.
CERVISIA. Ale, or beer. Sometimes spelled
"cerevisia."
CERVISIARIUS. In old records. An alehouse
keeper. A beer or ale brewer. Blount; Cowell.
CERVUS. Lat. A stag or deer.
CESAREVITCH, CESAREWITCH. Originally, a
title introduced in Russia in 1799 by Paul I (17541801) for his second son, the Grand Duke Constantine. Afterward the title of the czar's eldest son,
CESSAVIT PER BIENNIUM. In practice. An
obsolete writ, which could formerly have been
sued out when the defendant had for two years
ceased or neglected to perform such service or to
pay such rent as he was bound to do by his tenure,
and had not upon his lands sufficient goods or
chattels to be distrained. Fitzh.Nat.Brev. 208.
It also lay where a religious house held lands on
condition of performing certain spiritual services
which it failed to do. 3 Bl.Comm. 232. Emig v.
Cunningham, 62 Md. 460.
CESSE. (1) An assessment or tax; (2) a tenant
of land was said to cesse when he neglected or
ceased to perform the services due to the lord.
Co.Litt. 373a, 380b.
CESSER. Neglect; a ceasing from, or omission
to do, a thing. 3 Bl.Comm. 232. The determination of an estate. 1 Coke, 84; 4 Kent, Comm.
33, 90, 105, 295. The determination or ending of
a term, annuity, etc. Sweet.
As to the cesser clause in a charter party, see Steamship
Rutherglen Co. v. Howard Houlder & Partners, N.Y., 122
C.C.A. 166, 203 F. 848; The Marpesia, C.C.A.N.Y., 292 F.
957, 973.
CESSER, PROVISO FOR. A provision in a settlement creating long terms that when the trusts
are satisfied, the term should cease and determine.
Sweet. This proviso generally expresses three
events: (1) The trusts never arising; (2) their
288
CHACE
becoming unnecessary or incapable of taking effect; (3) the performance of them. Sugd.Vend.
(14th Ed.) 621-623.
all his property to his creditors, when he finds
himself unable to pay his debts. Civil Code La.
art. 2170.
CESSET EXECUTIO. (Let execution stay.) In
practice. A stay of execution; or an order for
such stay; the entry of such stay on record. 2
Tidd, Pr. 1104.
CESSIONARY. In Scotch law. An assignee.
Bell.
CESSIONARY BANKRUPT. One who gives up
his estate to be divided among his creditors.
CESSET PROCESSUS. (Let process stay.) A
stay of proceedings entered on the record. See 2
Dougl. 627; 11 Mod. 231. Formal order for stay
of process or proceedings, Brooks v. Super Service,
183 Miss. 833, 183 So. 484.
CESSOR. One who ceases or neglects so long to
perform a duty that he thereby incurs the danger
of the law. 0. N. B. 136.
CESSIO. Lat. A cession; a giving up, or relinquishment; a surrender; an assignment.
CESSURE. L. Fr. A receiver; a bailiff. Kelham.
CESSIO BONORUM. In Roman law. Cession of
goods. A surrender, relinquishment, or assignment of all his property and effects made by an insolvent debtor for the benefit of his creditors.
The term is commonly employed in modern continental jurisprudence to designate a bankrupt's
assignment of property to be distributed among
his creditors, and is used in the same sense by
some English and American writers, but here
rather as a convenient than as a strictly technical
term. See 2 Bl.Comm. 473; Dig. 2, 4, 25; 48, 19,
1; Nov. 4. 3; La.Civ.Code art. 2166 (Civ.Code, art.
2170) ; Sturges v. Crowninshield, 4 Wheat, .122, 4
L.Ed. 529.
C'EST ASCAVOIR. L. Fr. That is to say, or towit. Generally written as one word, cestascavoir,
CESSIO IN JURE. In Roman law. A fictitious
suit, in which the person who was to acquire
the thing claimed (vindicabat) the thing as his
own, the person who was to transfer it acknowledged the justice of the claim, and the magistrate
pronounced it to be the property (addicebat) of
the claimant. Sandars' Just.Inst., 5th Ed., 89, 122.
CESSION. The act of ceding; a yielding or giving up; surrender; relinquishment of property
or rights.
In the Civil Law
An assignment. The act by which a party transfers property to another. The surrender or assignment of property for the benefit of one's creditors. See Cessio Bonorum.
In Ecclesiastical Law
A giving up or vacating a benefice, by accepting
another without a proper dispensation. 1 Bl.
Comm. 392; Latch. 234; Cowell.
In Public Law
The assignment, transfer, or yielding up of territory by one state or government to another.
Municipality of Ponce v. Church, 210 U.S. 310, 28
S.Ct. 737, 52 L.Ed. 1068.
CESSION DES BIENS. In French law. The voluntary or compulsory surrender which a debtor in
insolvent circumstances makes of all his goods
to his creditors.
CESSION OF GOODS. The surrender of property; the relinquishment that a debtor makes of
Black's Law Dictionary Revised 4th Ed.-19
CESSMENT. An assessment, or tax.
cestascavoire.
C'EST LE CRIME QUI FAIT LA HONTE, ET
NON PAS L'RCHAFAUD. Fr. It is the offense
which causes the shame, and not the scaffold.
CESTUI, CESTUY. He. Used frequently in composition in law French phrases.
CESTUI QUE TRUST. He who has a right to a
beneficial interest in and out of an estate the legal
title to which is vested in another. 2 Washb. Real
Prop. 163. The person who possesses the equitable
right to property and receives the rents, issues,
and profits thereof, the legal estate of which is
vested in a trustee. Bernardsville Methodist Episcopal Church v. Seney, 85 N.J.Eq. 271, 96 A. 388,
389; Moore v. Shifflett, 187 Ky. 7, 216 S.W. 614,
616. Beneficiary of trust, Ulmer v. Fulton, 129
Ohio St. 323, 195 N.E. 557, 564, 97 A.L.R. 1170.
CESTUI QUE USE. He for whose use and benefit
lands or tenements are held by another. The
cestui que use has the right to receive the profits
and benefits of the estate, but the legal title and
possession (as well as the duty of defending the
same) reside in the other. 2 Bla.Comm. 330; 2
Washb. Real Prop. 95.
CESTUI QUE VIE. He whose life is the measure
of the duration of an estate. 1 Washb. Real Prop.
88. The person for whose life any lands, tenements, or hereditaments are held.
CESTUY QUE DOIT INHERITER AL PERE
DOIT INHERITER AL FILS. He who would have
been heir to the father of the deceased shall also
be heir of the son. Fitzh. Abr. "Descent," 2; 2 Bl.
Comm. 239, 250.
CF. An abbreviated form of the Latin word confer, meaning "compare." Directs the reader's at-
tention to another part of the work, to another
volume, case, etc., where contrasted, analogous, or
explanatory views or statements may be found.
CH. This abbreviation most commonly stands for
"chapter," or "chancellor," but it may also mean
"chancery," or "chief."
CHACE. L. Fr. A chase or hunting ground.
289
CHACEA
CHACEA. In old English law. A station of game,
more extended than a park, and less than a forest;
also the liberty of chasing or hunting within a certain district; also the way through which cattle
are driven to pasture, otherwise called a "droveway." Blount.
CHACEA EST AD COMMUNEM LEGEM. A
chase is by common law. Reg.Brev. 806.
CHACEABLE. L. Fr. That may be chased or
hunted.
CHACER. L. Fr. To drive, compel, or oblige;
also to chase or hunt.
CHACURUS. L. Lat. A horse for the chase, or
a hound, dog, or courser.
CHAFEWAX. An officer in the English chancery
whose duty was to prepare wax to seal the writs,
commissions, and other instruments thence issuing. The office was abolished by St. 15 & 16 Viet.
c. 87, § 23.
CHAFFERS. An ancient term for goods, wares,
and merchandise; hence the word chaffering,
which is yet used for buying and selling, or beating down the price of an article. The word is used
in Stat. 3 Edw. III. c. 4.
CHAFFERY. Traffic; the practice of buying and
selling.
CHAIN. A measure used by engineers and surveyors, being twenty-two yards in length.
CHAIN OF TITLE. Successive conveyances, or
other forms of alienation, affecting a particular
parcel of land, arranged consecutively, from the
government or original source of title down to the
present holder. Capper v. Poulsen, 321 Ill. 480,
152 N.E. 587, 588; Maturi v. Fay, 96 N.J.Eq. 472,
126 A. 170, 173; Havis v. Thorne Inv. Co., Tex.Civ.
App., 46 S.W.2d 329, 332.
CHAIN STORE. A store in a group of stores, one
or more of which is located within the state, under
the same management, supervision, or ownership.
Lee v. Herndon, 151 Fla. 657, 10 So.2d 305, 306.
CHAIRMAN. A name given to the presiding officer of an assembly, public meeting, convention,
deliberative or legislative body, board of directors,
committee, etc.
CHAIRMAN OF COMMITTEES OF THE WHOLE
HOUSE. In English parliamentary practice. In
the commons, this officer, always a member, is
elected by the house on the assembling of every
new parliament. When the house is in committee
on bills introduced by the government, or in committee of ways and means, or supply, or in committee to consider preliminary resolutions, it is his
duty to preside.
A measure of capacity, equal to fifty-eight and
two-thirds cubic feet, nearly. Cowell.
CHALLENGE, v. To object or except to; to prefer objections to a person, right, or instrument; to
formally call into question the capability of a person for a particular function, or the existence of a
right claimed, or the sufficiency or validity of an
instrument; to call or put in question; to put into
dispute; to render doubtful.
CHALLENGE, n. A request by one person to another to fight a duel. Ivey v. State, 12 Ala. 276;
Hawk.P1.Cr. b. 1, c. 3, § 3; State v. Farrier, 8 N.C.
487; 2 Bish.Cr.Law, § 312.
An objection or exception.
The objection or exception may be:
1. Against a person who presents himself at the polls as
a voter, in order that his right to cast a ballot may be
inquired into.
2. Against legal documents, as a declaration, count, or
writ. But this use of the word is now obsolescent. See,
however, Adkins v. Wayne County Court, 94 W.Va. 460,
119 S.E. 284, 285.
3. Taken to the personal qualification of a judge or
magistrate about to preside at the trial of a cause; as on
account of personal interest, his having been of counsel,
bias, etc. See Bank of North America v. Fitzsimons, 2
Binn., Pa., 454; Pearce v. Affieck, 4 id. 349.
4. Taken to the jurors summoned and returned for the
trial of a cause, People v. Travers, 88 Cal. 233, 26 P. 88.
See 2 Poll. & Maitl. 619, 646; Co.Litt. 155b.
Challenge for Cause
A challenge to a juror for which some cause or reason
is alleged. Termes de la Ley; Bl.Comm. 353. Thus distinguished from a peremptory challenge. Turner v. State,
114 Ga. 421, 40 S.E. 308; Cr. Code N. Y. § 374.
Challenge Propter Affectum
A challenge on account of bias or partiality or prejudice.
State v. Sawtelle, 66 N.H. 488, 32 A. 831.
Challenge Propter Defectum
A challenge on account of some legal disqualification,
such as infancy or alienage.
Challenge Propter Delictum
A challenge on account of crime; that is, disqualification
arising from the conviction of an infamous crime. Co.Litt.
155 b et seq.; State v. Levy, 187 N.C. 581, 122 S.E. 386,
389.
Challenge Propter Honoris Respectum
A challenge on account of party's social rank.
Challenge to the Array
An exception to the whole panel in which the jury are
arrayed, or set in order by the sheriff in his return, upon
account of partiality, or some default in the sheriff, coroner, or other officer who arrayed the panel or made the
return. 3 BI.Comm. 359; Co.Litt. 155b; Moore v. Guano
Co., 130 N.C. 229, 41 S.E. 293; Durrah v. State, 44 Miss.
789. A challenge to the form and manner of making up
the panel. Cobb v. Atlanta Coach Co., 46 Ga.App. 633. 168
S.E. 126, 127. A challenge that goes to illegality of drawing, selecting, or impaneling array. Lake v. State, 100 Fla.
386, 129 So. 833, 834.
Challenge to the Favor
A challenge based on circumstances of suspicion, as
acquaintance, and the like. 3 Bl.Comm. 363; 4 Bl.Comm.
353; State v. Sawtelle, 66 N.H. 488, 32 A. 831; Cobb v.
Atlanta Coach Co., 46 Ga.App. 633, 168 S.E. 126, 127.
CHALDRON, CHALDERN, or CHALDER. Twelve
sacks of coals, each holding three bushels, weighChallenge to the Panel
ing about a ton and a half. In Wales they reckon
The same as a challenge to the array, supra. See Pen.
12 barrels or pitchers a ton or chaldron, and 29
Code Cal. § 1058; Pate v. State, 15 Okl.Cr. 90, 175 P. 122,
cwt. of 120 lbs. to the ton. Wharton.
123.
290
CHAMBIUM
meda County v. Commissioner of Internal Revenue, C.C.A.9, 90 F.2d 47, 51, 111 A.L.R. 152.
Challenge to the Poll
A challenge made to an individual juror. State v. Carlin°, 99 N.J.Law, 292, 122 A. 830, 831; Cobb v. Atlanta
Coach Co., 46 Ga.App. 633, 168 S.E. 126, 127.
General Challenge
A species of challenge for cause, being an objection to a
particular juror, to the effect that the juror is disqualified
from serving in any case. Pen. Code Cal. § 1071.
Peremptory Challenge
In criminal practice. A species of challenge which the
prosecution or the prisoner is allowed to have against a
certain number of jurors, without assigning any cause.
Lewis v. U. S., 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011;
Turpin v. state, 55 Md. 462; Leary v. Railway Co., 69
N.J.Law, 67, 54 A. 527.
Principal Challenge
A challenge of a juror for a cause which carries with it,
prima facie, evident marks of suspicion either of malice or
favor ; as that a juror is of kin to either party within the
ninth degree; that he has an interest in the cause, etc. 3
B1.Comm. 363. A species of challenge to the array made
on account of partiality or some default in the sheriff or
his under-officer who arrayed the panel. 4 Bla.Comm. 353;
Co.Litt. 156 a, b. A challenge based on alleged facts from
which, if proven to be true, incapacity to serve is conclusively presumed. Cobb v. Atlanta Coach Co., 46 Ga.App.
633, 168 S.E. 126, 127. A challenge for principal cause,
Butler v. Greensboro Fire Ins. Co., 196 N.C. 203, 145
S.E. 3, 4.
CHAMBER SURVEYS. In Pennsylvania, false and
fraudulent pretenses of surveys of public lands by'
surveyors. Schraeder Min. & Mfg. Co. v. Packer,
129 U.S. 688, 9 S.Ct. 385, 32 L.Ed. 760.
CHAMBER, WIDOW'S. A portion of the effects
of a deceased person, reserved for the use of his
widow, and consisting of her apparel, and the
furniture of her bed-chamber, is called in London
the "widow's chamber." 2 Bl.Comm. 518.
This custom in London of reserving her apparel
and furniture for the widow of a freeman was
abolished by 19 & 20 Vict. c. 94.
CHAMBERDEKINS, or CHAMBER DEACONS.
In old English Jaw. Certain poor Irish scholars,
clothed in mean habit, and living under no rule;
also beggars banished from England. 1 Hen. V.
cc. 7, 8. Wharton.
CHALLENGE TO FIGHT. A summons or invitation, given by one person to another, to engage in
a personal combat; a request to fight a duel. A
criminal offense. See Steph.Crim.Dig. 40; 3 East,
581; State v. Perkins, 6 Blackf.Ind. 20.
CHAMBER. A room or apartment in a house. A.
private repository of money; a treasury. A compartment; a hollow or cavity. Proudfit Loose
Leaf Co. v. Kalamazoo Loose Leaf Binder Co., C.C.
A.Mich., 230 F. 120, 131. Also used to designate a
court, a commission, or an association of persons
habitually meeting together in an apartment, e. g.,
the "star chamber," "chamber of deputies,"
"chamber of commerce."
CHAMBER BUSINESS. A term applied to all
such judicial business as may properly be transacted by a judge at his chambers or elsewhere, as
distinguished from such as must be done by the
court in session. In re Neagle, C.C.Cal., 39 Fed.
855, 5 L.R.A. 78.
CHAMBER OF ACCOUNTS. In French law. A
sovereign court, of great antiquity, in France,
which took cognizance of and registered the accounts of the king's revenue; nearly the same as
the English court of exchequer. Enc. Brit.
CHAMBER OF COMMERCE. An association
( which may or may not be incorporated) comprising the principal merchants, manufacturers,
and traders of a city, designed for convenience in
buying, selling and exchanging goods, and to
foster the commercial and industrial interests of
the place. Similar societies are known by various
names, as, Board of Trade, etc. A board or association to promote the commercial interests of a
locality, county, or the like, or a society of a city
who meet to promote the general trade and commerce of the place. Retailers Credit Ass'n of Ala-
CHAMBERLAIN. Keeper of the chamber. Originally the chamberlain was the keeper of the
treasure chamber (camera) of the prince or
state; otherwise called "treasurer." Cowell.
The name of several high officers of state in
England, as the lord great chamberlain of England, lord chamberlain of the household, chamberlain of the exchequer. Cowell; Blount.
The , word is also used in some American cities
as the title of an officer corresponding to "treasurer."
CHAMBERLARIA. Chamberlainship; the office
of a chamberlain. Cowell.
CHAMBERS.
In Practice
The private room or office of a judge; any
place in which a judge hears motions, signs papers, or does other business pertaining to his
office, when he is not holding a session of court.
Business so transacted is said to be done "in
chambers." Quoted with approval in Chapman v.
Chattooga Oil-Mill Co., 22 Ga.App. 446, 96 S.E.
579, 580. See, also, Atchison, T. & S. F. Ry. Co. v.
Long, 122 Okl. 86, 251 P. 486, 491; Hoskins v.
Baxter, 64 Minn. 226, 66 N.W. 969; In re Verdigris
Conservancy Dist., 131 Kan. 214, 289 P. 966, 968.
The term is also applied, in England, to the private
office of a barrister.
In International Law
Portions of the sea cut off by lines drawn from
one promontory to another, or included within
lines extending from the point of one cape to the
next, situate on the sea-coast of the same nation,
and which are claimed by that nation as asylums
for merchant vessels, and exempt from the operations of belligerents.
CHAMBERS OF THE KING. See King's Chambers.
CHAMBIUM. In old English law. Change, or
exchange. Bract. fols. 117, 118.
291
CHAMBRE
CHAMBRE DEPEINTE. A name anciently given
to St. Edward's chamber, called the "Painted
Chamber," destroyed by fire with the houses of
parliament.
CHAMFER. A small gutter, furrow, or groove;
the slope or bevel produced by cutting off the edge
of anything which was originally right angled.
Syracuse Chilled Plow Co. v. Robinson, C.C.N.Y.,
35 F. 502, 503.
CHAMOTTE. A clay which has been burned to
an extent which deprives it of further shrinkage
on being again subjected to heat. Panzl v. Battle
Island Paper & Pulp Co., D.C.N.Y., 132 F. 607,
609. As used in the arts, see Id., C.C.A.N.Y., 138
F. 48, 50.
CHAMP DE MAI. (Lat. Campus Maii.) The
field or assembly of May. The national assembly
of the Franks, held in the month of May.
CHAMP DE MARS. (Lat. Campus Martii.) The
field or assembly of March. The national assembly of the Franks, held in the month of March, in
the open air.
CHAMPART. In French law. The grant of a
piece of land by the owner to another, on condition
that the latter would deliver to him a portion of
the crops. 18 Toullier, n. 182.
CHAMPERT.
In old English law. A share or division of land;
champerty.
In old Scotch law. A gift or bribe, taken by any
great man or judge from any person, for delay of
just actions, or furthering of wrongous actions,
whether it be lands or any goods movable. Skene.
CHAMPERTOR. In criminal law. One who makes
or brings pleas or suits, or causes them to be
moved or brought, either directly or indirectly, and
sues them at his proper costs, upon condition of
having a part of the gains or of the land in dispute. One guilty of champerty. St. 33 Edw. I, c.
2; In re Aldrich, 86 Vt. 531, 86 A. 801, 802.
CHAMPERTOUS. Of the nature of champerty;
affected with champerty.
The conveyance of land which is in the adverse possession of another is "champertous". Reynolds v. Thomas
Forman Co., 295 Ky. 41, 174 S.W.2d 132, 134.
"Maintenance" consists in maintaining, supporting, or
promoting the litigation of another. "Champerty" is a
bargain to divide the proceeds of litigation between the
owner of the liquidated claim and a party supporting or
enforcing the litigation. Draper v. Lebec, 219 Ind. 362, 37
N.E.2d 952, 956.
CHAMPION. A person who fights a combat in
his own cause, or in place of another. The person who, in the trial by battel, fought either for
the tenant or demandant. 3 Bl.Comm. 339; Bracton, 1. 4, t. 2, c. 12.
A person who engages in any contest; a combatant; a fighter; one who acts or speaks in behalf of a person, or a cause; defender; an advocate. Egan v. Signal Pub. Co., 140 La. 1069, 74
So. 556, 558.
CHAMPION OF THE KING OR QUEEN. An
ancient officer, whose duty it was at the coronation to challenge "that, if any man shall deny the
king's title to the crown, he is there ready to defend it in single combat." Wharton.
CHANCE. Absence of explainable or controllable
causation; accident; fortuity; hazard; result or
issue of uncertain and unknown conditions or
forces; risk; unexpected, unforeseen, or unintended consequence of an act. The opposite of intention, design, or contrivance.
But it has been held that there is a wide difference
between chance and accident. Harless v. U. S., Morris,
Iowa, 169, 173.
CHANCE BARGAIN. The entering into a contract for better or worse, accompanied by the
taking of chances as to the true facts and situation
of the thing or article bargained about. Marr v.
Lawson, 290 Ky. 342, 161 S.W.2d 42, 44.
CHANCE-MEDLEY. In criminal law. A sudden
affray. This word is sometimes applied to any
kind of homicide by misadventure, but in strictness it is applicable to such killing only as happens
in defending one's self. 4 Bl.Comm. 184.
CHANCE VERDICT. See Verdict.
CHANCEL. In ecclesiastical law. The part of a
church in which the communion table stands; it
belongs to the rector or the impropriator. 2
Broom & H. Comm. 420.
CHANCELLOR. In American law, this is the
name given in some states to the judge (or the
presiding judge) of a court of chancery.
CHAMPERTY. A bargain by a stranger with a
party to a suit, by which such third person underIn England, besides being the designation of the chief
takes to carry on the litigation at his own cost and
judge of the court of chancery, the term is used as the title
of
several judicial officers attached to bishops or other
risk, in consideration of receiving, if successful, a
high dignitaries and to the universities. The title is also
part of the proceeds or subject sought to be reused in some of the dioceses of the Protestant Episcopal
covered. Small v. Mott, 22 Wend., N.Y., 405; Gil- Church in the United States to designate a member of the
legal profession who gives advice and counsel to the bishop
man v. Jones, 87 Ala. 691, 5 So. 785, 7 So. 48, 4
and other ecclesiastical authorities.
L.R.A. 113; Jamison Coal & Coke Co. v. Goltra,
In Scotland, this title is given to the foreman of an
C.C.A.Mo., 143 F.2d 889, 895, 154 A.L.R. 1191. An
assize or jury. Bisph.Eq. 7.
agreement between owner of claim and volunteer
An officer bearing this title is to be found in some counthat latter may collect claim at his own expense
tries of Europe, and is generally invested with extensive
and divide proceeds. Gibson v. Gillespie, 4 W.W.
political authority.
Harr. (Del.) 331, 152 A. 589, 593.
Chancellor of a Cathedral
The purchase of an interest in a thing in dispute,
In English ecclesiastical law. One of the qucrtuor perwith the object of maintaining and taking part in
sonce, or four chief dignitaries of the cathedrals of the old
foundation.
the litigation. 7 Bing. 378.
292
CHANTER
Chancellor of a Diocese
In ecclesiastical law, the officer appointed to assist a
bishop in matters of law, and to hold his consistory courts
for him. 1 Bl.Comm. 382; 2 Steph.Comm. 672.
Chancellor of a University
In English law. The official head of a university.
Chancellor of the Duchy of Lancaster
In English law. An officer before whom, or his deputy,
the court of the duchy chamber of Lancaster is held.
Hob. 77; 3 Bl.Comm. 78.
Chancellor of the Exchequer
In English law. A high officer of the crown, who formerly sat in the exchequer court. Cowell. In modern
times his duties are such as pertain to a minister of state
charged with the management of the national revenue and
expenditure. 2 Steph.Com. 467.
Chancellor of the Order of the Garter and
Other Military Orders
In England, an officer who seals the commissions and the
mandates of the chapter and assembly of the knights,
keeps the register of their proceedings, and delivers their
acts under the seal of their order.
Chancellor, the Lord high
In England, the highest judicial functionary in the kingdom.
He exercises many functions and powers over and above
the jurisdiction which he exercises in his judicial capacity
in the supreme court of judicature, of which he is the
head. Wharton.
Vice-Chancellor
In English law. A judge of the court of chancery, acting
as assistant to the lord chancellor, and holding a separate
court. 3 Steph.Comm. 418.
CHANCELLOR'S COURTS IN THE TWO UNIVERSITIES. In English law. Courts of local
jurisdiction, resembling borough courts, in and for
the two universities of Oxford and Cambridge in
England. 3 Bl.Comm. 83; Odgers, C.L. 1030; 12
East, 12; 13 East, 635; 15 East, 634; 10 Q.B. 292.
CHANCER. To adjust according to principles of
equity, as would be done by a court of chancery.
Cent. Dict.
The practice arose in parts of New England when the
courts, without equity jurisdiction, were compelled to act
upon equitable principles. See Lewiston v. Gagne, 89 Me.
395, 36 A. 629, 56 Am.St.Rep. 432; In re Appel, Mass., 90
C.C.A. 172, 163 F. 1002, 20 L.R.A.,N.S., 76.
CHANCERY. Equity; equitable jurisdiction; a
court of equity; the system of jurisprudence administered in courts of equity. Kenyon v. Kenyon,
3 Utah, 431, 24 P. 829. See Court of Chancery.
CHANGE. As a noun. An alteration; a modification or addition; substitution of one thing for another. Exchange of money against money of a
different denomination. Also small coin. Also an
abbreviation of exchange.
As a verb. Alter; cause to pass from one place
to another; exchange; make different; put one
thing in place of another; vacate.
CHANGE OF BENEFICIARY. A divesting of
beneficial interest held by one person and a vesting
of that interest in another. Goldman v. Moses,
287 Mass. 393, 191 N.E. 873, 874.
Estate, 151 Misc. 74, 271 N.Y.S. 101. Shenton v.
Abbott, 178 Md. 526, 15 A.2d 906, 908, 909.
CHANGE OF GRADE. Usually understood as an
elevation or depression of the surface of a street,
or a change of the natural contour of its' face so
as to facilitate travel over it. McCabe v. City of
New York, 155 App.Div. 262. 140 N.Y.S. 127. 131.
It is essential that there shall have been a previously
established grade and that a new grade be physically
made. Gas Engine & Power Co. v. City of New York, 166
App.Div. 297, 151 N.Y.S. 310, 313; Berglar v. University
City, Mo.App., 190 S.W. 620, 623.
CHANGE OF LOCATION. Removal from old to
new location. Weber County v. Ritchie, 98 Utah
272, 96 P.2d 744.
CHANGE OF VENUE. Properly speaking, the
removal of a suit begun in one county or district
to another county or district for trial, though the
term is also sometimes applied to the removal of a
suit from one court to another court of the same
county or district. Felts v. Railroad Co., 195 Pa.
21, 45 A. 493; State v. Wofford, 119 Mo. 375, 24 S.
W. 764.
CHANGER. An officer formerly belonging to
the king's mint, in England, whose business was
chiefly to exchange coin for bullion brought in by
merchants and others.
CHANNEL. The bed in which the main stream
of a river flows, rather than the deep water of the
stream as followed in navigation. Bridge Co. v.
Dubuque County, 55 Iowa, 558, 8 N.W. 443. See
The Oliver, D.C.Va., 22 F. 849; Iowa v. Illinois,
147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55.
But the term is sometimes used to designate the customary and traveled fairway. The Arlington, C.C.A.N.Y., 19
F.2d 285, 286, 54 A.L.R. 101. It may also be used as a
generic term applicable to any water course, whether a
river, creek, slough, or canal. McKissick Cattle Co. v.
Alsaga, 41 Cal.App. 380, 182 P. 793, 797. The "channel" of
a river is to be distinguished from a "branch." U. S. v.
Hutchings, D.C.Okl., 252 F. 841, 844.
Main Channel
That bed of the river over which the principal
volume of water flows. St. Louis & St. P. Packet
Co. V. Keokuk & H. Bridge Co., C.C.Iowa, 31 F.
757. Compare State of Oklahoma v. State of
Texas, 258 U.S. 574, 42 S.Ct. 406, 414, 66 L.Ed. 771.
The main channel of a navigable stream, called for as a
boundary between states, means the "thalweg," or deepest
and most navigable channel as it then existed. Whiteside
v. Norton, C.C.A.Minn., 205 F. 5, 9.
Natural Channel
The channel of a stream as determined by the
natural conformation of the country through which
it flows. See Larrabee v. Cloverdale, 131 Cal. 96,
63 P. 143. The floor or bed on which the water
flows, and the banks on each side thereof as carved
out by natural causes. Pima Farms Co. v. Proctor,
30 Ariz. 96, 245 P. 369, 372.
CHANGE OF DOMICILE. Change of abode or CHANTER. The chief singer in the choir of a
residence and intention to remain. In re Fischer's
cathedral. Mentioned in 13 Eliz. c. 10.
293
CHANTRY
sisting of canons, or prebendaries, whereof the
dean is the head, all subordinate to the bishop.
And they are termed "capitulum," as a kind of
head, instituted not only to assist the bishop but
also anciently to rule and govern the diocese in the
time of vacation. Burn, Diet.; Coke, Litt. 103.
CHANTRY. A church or chapel endowed with
lands for the maintenance of priests to say mass
daily for the souls of the donors. Termes de la
Ley; Cowell.
CHAPEL. A place of worship; a lesser or inferior church, sometimes a part of or subordinate
to another church. Webster. Rex v. Nixon, 7 Car.
& P. 442; In re Atkinson's Will, 120 Misc. 186, 197
N.Y.S. 831, 832.
CHARACTER. Class or division to which claim
belongs, Jackson State Nat. Bank of Jackson,
Miss., v. Merchants' Bank & Trust Co. of Jackson,
Miss., 177 La. 975, 149 So. 539, 541.
The aggregate of the moral qualities which
belong to and distinguish an individual person;
the general result of the one's distinguishing attributes.
Chapel of Ease
In English ecclesiastical law. A chapel built in
aid of original church for parishioners who had
fixed their residence at some distance. 3 Steph.
Comm. 151.
Free Chapels
So called from their freedom or exemption from
all ordinary jurisdiction.
That moral predisposition or habit, or aggregate of
ethical qualities, which is believed to attach to a person,
on the strength of the common opinion and report concerning him. A person's fixed disposition or tendency, as evidenced to others by his habits of life, through the manifestation of which his general reputation for the possession of a character, good or otherwise, is obtained. Keith
v. State, 127 Tenn. 40, 152 S.W. 1029, 1030.
The estimate attached to an individual or thing the community. Biddle v. Riley, 118 Ark. 206, 176 S.W. 134, 137,
L.R.A.1915F, 992; Rogers v. State, 126 Tex.Cr.R. 39, 70
S. W.2d 188, 189; H. L. Shaffer & Co. v. Prosser, 99 Colo.
335, 62 P.2d 1161, 1133. The opinion generally entertained
of a person derived from the common report of the people
who are acquainted with him. Smith v. State, 88 Ala. 73,
7 So. 52; State v. Turner, 36 S.C. 534, 15 S.E. 602.
Although "character" is often used in the sense of "reputation," Garrison v. State, 217 Ala. 322, 116 So. 705;
Commonwealth v. Harvie, 345 Pa. 516, 28 A.2d 926, 927;
the terms are distinguishable, State v. Taylor, 267 Mo. 41,
183 S.W. 299, 301; Commonwealth v. Webb, 252 Pa. 187,
97 A. 189, 192.
Though, in a subjective sense, character, general character, and general report or reputation are the same. Powers v. Leach, 26 Vt. 278; and though general character has
always been proved by proving general reputation. Leverich v. Frank, 6 Or. 213. See, also, Richardson v. State, 94
Tex.Cr.R. 616, 253 S.W. 273, 277. "Character" is what a
man is, and "reputation" is what he is supposed to be.
State v. Pickett, 202 Iowa, 1321, 210 N.W. 782, 783. "Character" depends on attributes possessed, and "reputation"
on attributes which others believe one to possess. Bills v.
State, 187 Ind. 721, 119 N.E. 465. The former signifies reality and the latter merely what is accepted to be reality at
present. State v. Leabo, 120 Or. 160, 249 P. 363.
Private Chapels
Chapels owned by private persons, and used by
themselves and their families. 2 Steph.Comm.
745.
Proprietary Chapels
In English law. Those belonging to private
persons who have purchased or erected them with
a view to profit or otherwise.
Public Chapels
In English law, chapels founded later than the
church for parishioners who fixed their residence
at a distance; and chapels so circumstanced were
described as "chapels of ease." 3 Steph.Comm.
(7th Ed.) 745.
CHAPELRY. The precinct and limits of a chapel.
The same thing to a chapel as a parish is to a
church. Cowell; Blount; Termes de la Ley.
CHAPERON. A hood or bonnet anciently worn
by the Knights of the Garter; also a little escutcheon fixed in the forehead of horses drawing a
hearse at a funeral. Wharton.
CHARBON. Another name for anthrax
CHAPITRE. A summary of matters to be inquired of or presented before justices in eyre,
justices of assise, or of the' peace, in their sessions.
Also articles delivered by the justice in his charge
to the inquest. Brit. c. iii.
CHAPLAIN. An ecclesiastic who performs divine
service in a chapel; but it more commonly means
one who attends upon a king, prince, or other person of quality, for the performance of clerical
duties in a private chapel. 4 Coke, 90. A clergyman officially attached to a ship of war, to an
army, (or regiment,) or to some public institution,
for the purpose of performing divine service.
Webster.
CHAPMAN. An itinerant vendor of small wares.
A trader who trades from place to place. Say. 191,
192.
CHAPTER. In ecclesiastical law. A congregation
of ecclesiastical persons in a cathedral church, con-
(q. v.).
CHARGE, v. To impose a burden, duty, obligation,
or lien; to create a claim against property; to
claim; to demand; to accuse; to instruct a jury
on matters of law. To impose a tax, duty, or
trust. Ex parte Horn, D.C.Wash., 292 F. 455, 457.
In commercial transactions, to bill or invoice.
George M. Jones Co. v. Canadian Nat. Ry. Co., D.
C.Mich., 14 F.2d 852, 855.
A jury is "charged" with duty of trying prisoner (or, as
otherwise expressed, with his fate or his "deliverance") as
soon as they are impaneled and sworn ; this is a different
matter from "charging" the jury in the sense of giving
them instructions. Tomasson v. State, 112 Tenn. 596, 79
S. W. 803. And see Keith v. Commonwealth, 197 Ky. 362,
247 S. W. 42, 44.
To load, as a firearm. People v. Limeberry, 298
Ill. 355, 131 N.E. 691, 696.
CHARGE, n. An incumbrance, lien, or claim; a
burden or load; an obligation or duty; a liability;
an accusation. Darling v. Rogers, 22 Wend. (N.
Y.) 491. Custody. Randazzo v. U. S., C.C.A.Mo.,
294
CHARITABLE
Special Charge
300 F. 794, 797; In re Boulware's Will, 258 N.Y.S.
522, 144 Misc. 235. Price. Aiken Mills v. United
States, D.C.S.C., 53 F.Supp. 524, 526. Rate. Borough of Mechanicsburg v. Valley Rys., 109 Pa.
Super. 48, 165 A. 541, 542.
Conversion' of electrical energy into chemical
energy within a cell or storage battery. Elliott
Works v. Frisk, D.C.Iowa, 58 F.2d 820, 822.
A charge or instruction given by the court to the jury,
upon some particular point or question involved in the
case, and usually in response to counsel's request for such
instruction.
In Common-law Practice
The final address by judge to jury before verdict, in
which he sums up the case, and instructs jury as to the
rules of law which apply to its various issues, and which
they must observe. The term also applies to the address
of court to grand jury, in which the latter are instructed
as to their duties.
In Contracts
An obligation. Com.Dig. "Rent," c. 6; 2 Ball & B. 223;
Termes de la Ley. An undertaking to keep the custody of
another person's goods. State v. Clark, 86 Me. 194, 29 A.
984.
In Criminal Law
An accusation or oral charge. People v. Ross, 235 Mich.
433, 209 N.W. 663, 666; Haggard v. First Nat. Bank of
Mandan, 72 N.D. 434, 8 N.W.2d 5, 9. A formal complaint,
information, or indictment. People v. Lepori, 35 Cal.App.
60, 169 P. 692, 694. A count. State v. Thornton, 142 La.
797, 77 So. 634, 636; State v. Pucketty, 39 N.M. 511, 50
P.2d 964, 965. Accused or arraigned. Code Cr.Proc. § 57.
People v. Hickox, 10 N.Y.S.2d 318, 320, 170 Misc. 354.
In Equity Pleading
CHARGE AND DISCHARGE. Under former equity practice, in taking an account before a master,
a written statement of items for which plaintiff
asked credit and a counter-statement, exhibiting
claims or demands defendant held against plaintiff.
CHARGE DES AFFAIRES, or CHARGE D'AFFAIRES. The title of a diplomatic representative
of inferior rank. In re Baiz, 135 U.S. 403, 10 S.Ct.
854, 34 L.Ed. 222; Du Pont v. Pichon, 4 Da11. 321, 1
L.Ed. 851.
CHARGE—OFF. Anything manifesting intent to
eliminate an item from assets. Rubinkam v. Commissioner of Internal Revenue, C.C.A.7, 118 F.2d
148, 149.
CHARGE—SHEET. A paper kept at a policestation to receive each night the names of the
persons brought and given into custody, the nature
of the accusation, and the name of the accuser in
each case. Wharton.
An allegation in the bill of matters which disprove or
avoid a defense which it is alleged the defendant is supposed to pretend or intend to set up. Story, Eq.P1. § 31;
Cooper, Eq.P1. 11; 1 Dan.Ch.Pr. 372, 1883, n.; 11 Ves.Ch.
574.
CHARGE TO ENTER HEIR. In Scotch law. A
writ commanding a person to enter heir to his
predecessor within forty days, otherwise an action
to be raised against him as if he had entered.
A written statement presented to a master in chancery
by a party of the items with which the opposite party
should be debited or should account for, or of the claim of
the party making it. A charge may embrace the whole
liabilities of the accounting party. Hoff.Mast. 36.
CHARGEABLE. This word, in its ordinary acceptation, as applicable to the imposition of a duty
or burden, signifies capable of being charged, subject to be charged, liable to be charged, or proper
to be charged. Gilfillan v. Chatterton, 38 Minn.
335, 37 N.W. 583.
In Equity Practice
In Scotch Law
The command of the king's letters to perform some act;
as a charge to enter heir. Also a messenger's execution,
requiring a person to obey the order of the king's letters;
as a charge on letters of horning, or a charge against a
superior. Bell.
In the Law of Wills
A responsibility or liability imposed by the testator upon
a devisee personally, or upon the land devised. Potter v.
Gardner, 12 Wheat. 498, 6 L. Ed. 706; Boal v. Metropolitan
Museum of Art of City of New York, C.C.A.N.Y., 298 F.
894, 908. A pecuniary burden. In re Clark's Will, 37
N.Y.S.2d 522, 523, 179 Misc. 75.
A devise for beneficial enjoyment of devisee subject to
payment of a sum of money or performance of a particular
duty. Howells State Bank v. Pont, 113 Neb. 181, 202 N.W.
457, 459.
General Charge
The charge or instruction of the court to the jury upon
the case, as a whole, or upon its general features and characteristics.
Public Charge
A person whom it is necessary to support at public
expense by reason of poverty, insanity and poverty, disease
and poverty, or idiocy and poverty. Wallis v. U. S., ex rel.
Mannara, C.C.A.N.Y., 273 F. 509, 511. As used in Immigration Act Feb. 5, 1917, § 19, 8 U.S.C.A. § 155, one who produces a money charge on, or an expense to, the public for
support and care. Ex parte Kichmiriantz, D.C.Cal., 283 F.
697, 698. As so used, the term is not limited to paupers or
those liable to become such, but includes those who will
not undertake honest pursuits, or who are likely to become
periodically the inmates of prisons. Ex parte Horn, D.C.
Wash., 292 F. 455, 457. But see Ng Fung Ho v. White,
C.C.A.Cal., 266 F. 765, 769.
CHARGEANT. Weighty; heavy; penal; expensive. Kelham.
CHARGES. The expenses which have been incurred, or disbursements made, in connection with
a contract, suit, or business transaction. Spoken
of an action, it is said that the term includes more
than what falls under the technical description of
"costs."
Instructions. Standard v. Texas Pacific Coal &
Oil Co., Tex.Civ.App., 47 S.W.2d 443, 447.
CHARGING LIEN. A lien is a charging lien
where the debt is a charge upon the specific property although it remains in the debtor's possession. See, also, Attorney's Lien,
CHARGING ORDER. See Order.
CHARITABLE. Having the character or purpose
of a charity (q. v.).
The term is sometimes deemed to be synonymous with
"eleemosynary," Hamburger v. Cornell University, 166
N.Y.S. 46, 48, 99 Misc. 564; with "benevolent," In re Dol's
Estate, 182 Cal. 159, 187 P. 428, 431; with "beneficent,"
People v. Thomas Walters Chapter of Daughters of American Revolution, 311 Ill. 304, 142 N.E. 566.
CHARITABLE BEQUEST. A bequest is charitable if its aims and accomplishments are of
295
CHARITABLE
religious, educational, political, or general social
interest to mankind and if the ultimate recipients
constitute either the community as a whole or an
unascertainable and indefinite portion thereof. In
re Henderson's Estate, 17 Cal.2d 853, 112 P.2d
605, 607, 609. See, also, Charity.
CHARITABLE CORPORATION. One that freely
and voluntarily ministers to the physical needs of
those pecuniarily unable to help themselves. In re
Rockefeller's Estate, 177 App.Div. 786, 165 N.Y.S.
154, 158. One which, by its powers, or usage, is
charged with administering charitable relief. In
re Beekman's Estate, 196 App.Div. 681, 188 N.Y.S.
178, 179. One organized for the purpose, among
other things, of promoting the welfare of mankind at large, or of a community, or of some class
from a part of it indefinite as to number of individuals. In re Dol's Estate, 186 Cal. 64, 198 P.
1039.
CHARITABLE GIFT. See Charity.
CHARITABLE HOSPITAL OR SANITARIUM.
One maintained for gratuitous treatment of sick
and needy. Moss v. Youngblood, 187 Ga. 188, 200
S.E. 689, 694. One not maintained for . a gain,
profit or private advantage. In re Farmers' Union
Hospital Ass'n of Elk City, 190 Okl. 661, 126 P.2d
244, 246. One operated by means of contributions,
Bedford v. Colorado Fuel & Iron Corporation,
102 Colo. 538, 81 P.2d 752, 759, 760. One when
charges collected are no more than needed for
maintenance. Gundry v. R. B. Smith Memorial
Hospital Ass'n, 293 Mich. 36, 291 N.W. 213, 214, 215.
One when income from patients able to pay is used
for maintenance or extension of facilities devoted
to charitable purposes. Benton County v. Allen,
170 Or. 481, 133 P.2d 991, 992, 993, 995. One which
does not deny treatment to persons unable to pay
though it charges those able to pay. Commis.
sioner of Internal Revenue v. Battle Creek, C.C.A.
Fla., 126 F.2d 405, 406.
CHARITABLE INSTITUTION. One supported in
whole or in part at public expense or by charity.
City of Vicksburg v. Vicksburg Sanitarium, 117
Miss. 709, 78 So. 702. One for the relief of a certain class of persons, either by alms, education, or
care. Utica Trust & Deposit Co. v. Thompson, 87
Misc. 31, 149 N.Y.S. 392, 398. One administering a
public or private charity; an eleemosynary institution. St. Albans Hospital v. Town of Enosburg,
96 Vt. 389, 120 A. 97, 99. One performing service
of public good or welfare without profit. Society
of Cincinnati v. Exeter, 92 N.H. 348, 31 A.2d 52,
55.
CHARITABLE ORGANIZATION. One which has
no capital stock and no provision for making dividends and profits, but derives its funds mainly
from public and private charity, and holds them
in trust for the objects and purposes expressed in
its charter. Congregational Sunday School & Publishing Soc. v. Board of Review, 290 Ill. 108, 125
N.E. 7, 9. One conducted not for profit, but for
promotion of welfare of others. Stearns v. Association of Bar of City of New York, 154 Misc. 71,
276 N.Y.S. 390.
CHARITABLE SCHOOL OR EDUCATIONAL INSTITUTION. A college preparatory school operated without profit some of whose students paid no
tuition, College Preparatory School for Girls of
Cincinnati v. Evatt, 144 Ohio St. 408, 59 N.E.2d 142,
145. One devoted to public education without
private gain. Southern Methodist University v.
Clayton, 142 Tex. 179, 176 S.W.2d 749, 750. One
supported wholly or in part by public subscriptions
or endowment, New York University v. Taylor,
251 App.Div. 444, 296 N.Y.S. 848, 849; or by private
charity. Bodenheimer v. Confederate Memorial
Ass'n, D.C.Va., 5 F.Suppe 526, 528,
CHARITABLE SOCIETY. An educational institution is a charitable society. In re Cooper's Estate, 229 Iowa 921, 295 N.W. 448, 454.
CHARITABLE USES OR PURPOSES. Originally
those enumerated in the statute 43 Eliz. c. 4, and
afterwards those which, by analogy, come within
its spirit and purpose. Boyle, Char. 17. See, also,
Charity.
CHARITABLE TRUST. A fiduciary relationship
subjecting holder of property to deal with it for a
charitable purpose. In re White's Estate, 340 Pa.
92, 16 A.2d 394, 396, 397. A trust for benefit of
public or of some portion thereof. Delaware
Trust Co. v. Fitzmaurice, Del.Ch., 31 A.2d 383, 388.
Its characteristics are the expression of a definite
charitable purpose and the indefiniteness of the
beneficiaries. Woodcock v. Wachovia Bank &
Trust Co., 214 N.C. 224, 199 S.E. 20.
A cemetery corporation is a "charitable trust". De
Geeter v. Wolklin, 133 N.J.Eq. 510, 42 A.2d 561, 562. So,
too, a Christian church. Burgle v. Muench, 65 Ohio App.
176, 29 N.E.2d. 439, 440.
CHARITY. The word "charity" may be used in
a subjective or an objective sense.
It may mean or apply to:
Accomplishment of some social interest, In re Tollinger's
Estate, 349 Pa. 393, 37 A.2d 500, 501, 502. Act or feeling of
benevolence, Southern Methodist Hospital and Sanatorium
of Tucson v. Wilson, 51 Ariz. 424, 77 P.2d 458. Advancement of purposes beneficial to public, Rabinowitz v. Wollman, 174 Md. 6, 197 A. 566, 568. All good affections men
ought to bear towards each other. Morice v. Bishop of
Durham, 9 Ves. 399. All which aids man and seeks to
i mprove his condition. Waddell v. Young Women's Christian Ass'n, 133 Ohio St. 601, 15 N.E.2d 140, 142. Almsgiving, In re Rathbone's Estate, 11 N.Y.S.2d 506, 527, 170
Misc. 1030. Amelioration of persons in unfortunate circumstances, Second Nat. Bank v. Second Nat. Bank, 171
Md. 547, 190 A. 215, 111 A.L.R. 711. An institution founded
by a gift and intended for public use as a hospital, library,
school, or museum, Southern Methodist Hospital and Sanatorium of Tucson v. Wilson, 51 Ariz. 424, 77 P.2d 458, 460,
461. Any purpose in which the public has an interest, Collins v. Lyon, Inc., 181 Va. 230, 24 S.E.2d 572, 580. Any
purpose of general benefit untainted by motives of private
gain. Stearns v. Association of Bar of City of New York,
276 N.Y.S. 390, 395, 154 Misc. 7L Any scheme or effort to
better the condition of society or any considerable part
thereof. Tharpe v. Central Georgia Council of Boy Scouts
of America, 185 Ga. 810, 196 S.E. 762, 764, 116 A.L.R. 373.
Assistance to persons in establishing. Bruce v. Young
Men's Christian Ass'n, 51 Nev. 372, 277 P. 798, 799; assistance to the needy. Benefit of handcraftsmen. Benefit of
an indefinite number of persons, Morgan v. National Trust
Bank of Charleston, 331 M. 182, 162 N.E. 888, 890. Benefit
of minister. In re Edge's Estate, 288 N.Y.S. 437, 440, 159
Misc. 505. Benevolence, philanthropy, and good will.
Santa Fe Lodge No. 460, B. P. 0. E., v. Employment Sec.
296
CHARTA
Commission, 49 N.M. 149, 159 P.2d 312, 315. Benevolent or
philanthropic, Beckwith v. Parish, 69 Ga. 569; Price v.
Maxwell, 28 Pa. 2.3. Dissemination of knowledge; Christian love, Boruch v. SS. Peter & Paul's Orthodox Russian
Church, 111 N.J.L. 116, 166 A. 723. Conferring advantages
of a social character. La Societe Francaise De Bienfaisance Mutuelle v. California Employment Commission, 56
Cal.App.2d 534, 133 P.2d 47, 51, 52. Eleemosynary, Collier
v. Lindley, 203 Cal. 641, 266 P. 526, 528. General public
use which extends to the rich as well as to the poor. Hamilton v. Corvallis General Hospital Ass'n, 146 Or. 168, 30
P.2d 9, 14. Gift for benefit of indefinite number, St. Louis
Union Trust Co. v. Burnet, C.C.A., 59 F.2d 922, 926. Gift
to the general public use. Maretick v. South Chicago Community Hospital, 297 Ill. App. 488, 17 N.E.2d 1012, 1014.
Gift without consideration or expectation of return, State
v. Texas Mut. Life Ins. Co. of Texas, Tex.Civ.App., 51
S.W.2d 405, 410. Improvement of man. Boston Symphony
Orchestra v. Board of Assessors of City of Boston, Mass.,
1 N.E.2d 6, 9. Improvement of spiritual, mental, social and
physical conditions. Andrews v. Young Men's Christian
Ass'n of Des Moines, 226 Iowa 374, 284 N.W. 186, 192.
Lessening burdens of government. Stork v. Schmidt, 129
Neb. 311, 261 N.W. 552, 554. Physical, mental or moral
betterment, In re Tollinger's Estate, 349 Pa. 393, 37 A.2d
500, 501, 502. Promotion of government or municipal purposes, Powers v. First Nat. Bank, Tex.Civ.App., 137 S.W.2d
839, 842. Promotion of happiness of man. Old Colony
Trust Co. v. Welch, D.C.Mass., 25 F.Supp. 45, 48. Promotion of philanthropic and humanitarian purposes. Jackson
v. Phillips, 14 Allen, Mass., 556. Promotion of well-doing
and well-being of social man. Krause v. Peoria Housing
Authority, 370 Ill. 356, 19 N.E.2d 193, 199. Promotion or fostering science, education, enlightenment, benefit, of mankind, Irwin v. Swinney, D.C.Mo., 44 F.2d 172, 174. Property held for public purposes. St. Louis Union Trust Co.
v. Burnet, C.C.A.8, 59 F.2d 922, 927. Public benefit, convenience, utility, or comfort, Camp v. Presbyterian Soc. of
Sackets Harbor, 173 N.Y.S. 581, 584, 105 Misc. 139. Reclamation of criminals. Relief of persons in unfortunate circumstances, Second Nat. Bank v. Second Nat. Bank, 171
Md. 547, 190 A. 215, 111 A.L.R. 711. Religious, educational,
benevolent, and humanitarian objects. In re Jordan's
Estate, 329 Pa. 427, 197 A. 150. Services accorded to the
needy. Unselfish things as are wont to be done by those
who are animated by love. Bok v. McCaughn, C.C.A.Pa.,
42 F.2d 616, 619. What is done out of good will and a
desire to add to the improvement of moral, mental, and
physical welfare of public. Old Colony Trust Co. v. Welch,
D.C.Mass., 25 F.Supp. 45, 48. Whatever is given for love
of God or love of your neighbor, free from every consideration that Is personal, private, or selfish. Vidal v. Girard, 2 How. 128, 11 L.Ed. 205, appr. Price v. Maxwell, 28
Pa. 35. Whatever proceeds from sense of moral duty or
feeling of kindness and humanity for relief or comfort of
another, Doyle v. Railroad Co., 118 Mass. 195, 198, 19 Am.
Rep. 431. Uncertainty regarding beneficiaries is distinct
feature. Goode's Adm'r v. Goode, 238 Ky. 620, 38 S.W.2d
691, 694.
Foreign Charity
One created or endowed in a state or country
foreign to that of the domicile of the benefactor.
Taylor's Ex'rs v. Trustees of Bryn Mawr College,
34 N.J.Eq. 101.
Public Charity
A charity wherein the benefit is conferred on
indefinite persons composing the public or some
part of the public. Continental Illinois Nat. Bank
& Trust Co. v. Harris, 359 Ill. 86, 194 N.E. 250, 253.
A gift to be applied consistently with existing laws for
the benefit of an indefinite number of persons, by bringing
their minds under the influence of education or religion,
by relieving their bodies from disease, suffering, or constraint, or by assisting them to establish themselves in
life, or by erecting and maintaining public buildings or
works, or otherwise lessening the burdens of government.
Robinson v. Crutcher, 277 Mo. 1, 209 S.W. 104, 105.
A "purely public charity" which Legislature may
exempt from taxation is a charity indiscriminately dispensed to some portion or group of public where ends
accomplished are wholly benevolent and are accomplished
without profit or gain and, the beneficiaries are saved
from becoming burdens upon society and the state. City
of Houston v. Scottish Rite Benev. Ass'n, 111 Tex. 191, 230
S. W. 978, 981.
Pure Charity
One which is entirely gratuitous, and which
dispenses its benefits without any charge or pecuniary return whatever. See In re Lenox's Estate,
Sur., 9 N.Y.S. 895, 31 St.R. 959; Kentucky Female
Orphan School v. Louisville, 100 Ky. 470, 36 S.W.
921, 40 L.R.A. 119.
CHARLATAN. One who pretends to more knowledge or skill than he possesses; ' a "quack."
Brinkley v. Fishbein, C.C.A.Tex., 110 F.2d 62, 64.
CHARLEY. A familiar nickname or substitute
for "Charles." Carroll v. State, 24 Okl.Cr. 26, 215
P. 797, 798.
CHARRE OF LEAD. A quantity consisting of 36
pigs of lead, each pig weighing about 70 pounds.
CHART. The word "chart," as used in the copyright law, does not include sheets of paper exhibiting tabulated or methodically arranged information. Taylor v. Gilman, C.C.N.Y., 24 Fed. 632.
CHARTA.
In Old English Law
A charter or deed; an instrument written and
sealed; the formal evidence of conveyances and
contracts. Also any signal or token by which an
estate was held.
The term came to be applied, by way of eminence, to
such documents as proceeded from the sovereign, granting
liberties or privileges, and either where the recipient of
the grant was the whole nation, as in the case of Magna
Charta, or a public body, or private individual, in which
case it corresponded to the modern word "charter."
In the Civil Law
Paper, suitable for the inscription of documents
or books; hence, any instrument or writing. See
Dig. 32, 52, 6; Nov. 44, 2.
Charta Communis
In old English law. An indenture; a common or mutual
charter or deed; one containing mutual covenants, or
involving mutuality of obligation; one to which both parties might have occasion to refer, to establish their respective rights. Bract. fols. 33b, 34.
Charta Cyrographata (or Chyrographata)
In old English law. A chirographed charter; a charter
executed in two parts, and cut through the middle, (scinditur per medium,) where the word "cyrographum," or
"chirographum," was written in large letters. Bract fol.
34; Fleta, lib. 3, c. 14, § 3. See Chirograph.
Charta De Foresta
A collection of the laws of the forest, made in the 9th
Hen. III, and said to have been originally a part of Magna
Charta.
The charta de foresta was called the Great Charter of the
woodland population, nobles, barons, freemen, and slaves,
loyally granted by Henry III. early in his reign (A.D.1217).
Inderwick, King's Peace 159; Stubb's Charters 847. There
is a difference of opinion as to the original charter of the
forest similar to that which exists respecting the true and
original Magna Carta (q. v.), and for the same reason, viz.,
that both required repeated confirmation by the kings,
despite their supposed inviolability. This justifies the
remark of recent historians as to the great charter that
"this theoretical sanctity and this practical insecurity are
297
CHARTA
Shared with 'the Great Charter . of Liberties' by the Charter of the Forest which was issued in 1217." 1 Poll. &
Maitl. 158. It is asserted with great positiveness by Inderwick that no forest charter was ever granted by King
John, but that Henry III. issued the charter of 1217 (which
he puts in the third year of the reign, which, however, only
commenced Oct. 28, 1216), in pursuance of the promises of
his father; and Lord Coke, referring to it as a charter on
which the lives and liberties of the woodland population
depended, says that it was confirmed at least thirty times
between the death of John and that of Henry V. ; 4
Co. Inst. 303.
Webster, under the title Magna Charta, says that the
name is applied to the charter granted in the 9th Hen.
III. and confirmed by Edw. I. Prof. Maitland, in speaking
of Magna Carta, refers to "the sister-charter which defined
the forest law" as one of the four documents which, at the
death of Henry III., comprised the written law of England.
1 Soc. England 410. Edward I. in 1297 confirmed "the
charter made by the common consent of all the realm in
the time of Henry III. to be kept in every point without
breach." Inderwick, King's Peace 160; Stubb's Charters
486. The Century Dictionary refers to this latter charter
of Edw. I. as the Charter of .the Forest; but it was, as
already shown, only a confirmation of it, and a comparison
of the authorities leaves little if any doubt that the date
was as above stated and the history as here given. Its
provisions may be found in Stubb's Charters and they are
summarized by Inderwick, in his work above cited.
Charta De Una Parte
A deed-poll; a deed of one part. Formerly used to distinguish a deed poll—that is, an agreement made by one
party only—from a deed inter partes. Co.Litt. 229.
Charta Partita
(Literally, a deed divided.) A charter-party. 3 Kent,
Comm. 201.
CHARTA DE NON ENTE NON VALET. A deed
of a thing not in being is not valid. Co.Litt. 36.
CHARTA NON EST NISI VESTIMENTUM
DONATIONIS. A deed is nothing else than the
vestment of a gift. Co.Litt. 36.
CHAUSSIEE. Fr. A levee of earth, made to retain the water of a river or pond; a levee made
in low, wet, and swampy places to serve as a road.
Armas v. New Orleans, 3 La. 86, 99.
CHARTIE LIBERTATUM. The charters (grants)
of liberties. These are Magna Charta and Charta
de Foresta.
CHARTARUM SUPER FIDEM, MORTUIS TESTIBUS, AD PATRIAM DE NECESSITUDINE RECURRENDUM EST. Co.Litt. 36. The witnesses
being dead, the truth of charters must of necessity be referred to the country, i. e., a jury.
CHARTE. Fr. A chart, or plan, which mariners
use at sea.
powers. Such was the "Great Charter" or "'Magna
Charta," and such also were the charters granted
to certain of the English colonies in America. See
Story, Const. § 161; 1 Bla.Comm. 108.
A charter differs from a constitution, in that the former
is granted by the sovereign, while the latter is established
by the people themselves.
A city's organic law. Hudson Motor Car Co. v.
City of Detroit, 282 Mich. 69, 275 N.W. 770, 773,
113 A.L.R. 1472.
An act of a legislature creating a corporation,
or creating and defining the franchise of a corporation. Baker v. Smith, 41 RI. 17, 102 A. 721,
723; Bent v. Underdown, 156 Ind. 516, 60 N.E.
307. Also a corporation's constitution or organic
law; Schultz v. City of Phcenix, 18 Ariz. 35, 156
P. 75, 76; C. J. Kubach Co. v. McGuire, 199 Cal.
215, 248 P. 676, 677; that is to say, the articles of
incorporation taken in connection with the law
under which the corporation was organized; Chicago Open Board of Trade v. Imperial Bldg. Co.,
136 Ill.App. 606; In re Hanson's Estate, 38 S.D. 1,
159 N.W. 399, 400. The authority by virtue of
which an organized body acts. Ryan v. Witt, Tex.
Civ.App., 173 S.W. 952, 959. A contract between
the state and the corporation, between the corporation and the stockholders, and between the
stockholders and the state. Bruun v. Cook, 280
Mich. 484, 273 N.W. 774, 777.
In Old English Law
A deed or other written instrument under seal;
a conveyance, covenant, or contract. Cowell;
Spelman; Co.Litt. 6; 1 Co. 1; F.Moore 687.
In Old Scotch Law
A disposition made by a superior to his vassal,
for something to be performed or paid by him. 1
Forb.Inst. pt. 2, b. 2, c. 1, tit. 1. A writing which
contains the grant or transmission of the feudal
right to the vassal. Ersk.Inst. 2, 3, 19.
Blank Charter
A document given to the agents of the crown
in the reign of Richard II. with power to fill up as
they pleased.
Charter of Pardon
In English law. An instrument under the great seal, by
which a pardon is granted to a man for a felony or other
offense.
Charter of the Forest
See Charts de foresta.
Charter Rolls
Ancient English records of royal charters, granted
between the years 1199 and 1516.
CHARTE-PARTIE. Fr. In French marine law.
A charter-party.
CHARTEL. A variant of "cartel" (q. v.).
CHARTER, v. In mercantile law. To hire or
lease a vessel for a voyage. Thus, a "chartered"
is distinguished from a "seeking" ship. 7 East, 24.
CHARTER, n. An instrument emanating from
the sovereign power, in the nature of a grant,
either to the whole nation, or to a class or portion
of the people, or to a colony or dependency, and
assuring to them certain rights, liberties, or
CHARTER-HOUSE. Formerly a convent of Carthusian monks in London; now a college founded
and endowed by Thomas Sutton. The governors
of the charter-house are a corporation aggregate
without a head, president, or superior, all the
members being of equal authority. 3 Steph.
Comm. (7th Ed.) 14, 97.
CHARTER-LAND. In English law. Otherwise
called "book-land." Property held by deed under
298
CHATTEL
certain rents and free services. It, in effect,
differs nothing from the free socage lands, and
hence have arisen most of the freehold tenants,
who hold of particular manors, and owe suit and
service to the same. 2 Bl.Comm. 90.
CHARTER-PARTY. A contract by which a ship,
or some principal part thereof, is let to a merchant
for the conveyance of goods on a determined
voyage to one or more places. Fish v. Sullivan,
40 La.Ann. 193, 3 So. 730; Vang v. Jones & Laughlin Steel Corporation, D.C.Pa., 7 F.Supp. 475, 478.
A specific and express contract by which the owner lets
a vessel or some particular part thereof to another person
for a specified time or use. Jones & Laughlin Steel Corporation v. Vang, C.C.A.Pa., 73 F.2d 88, 91.
A written agreement by which a ship-owner lets the
whole or a part to a merchant for the conveyance of goods
in consideration of payment of freight. Maude & P. Mer.
Shipp. 227; Parker v. Washington Tug & Barge Co., 85
Wash. 575, 148 P. 896, 898. 3 Kent Comm. 201.
The contract by which a ship owner may either let the
capacity or burden of the ship, continuing the employment
of the owner's master, crew, and equipments, or may surrender the entire ship to the charterer, who then provides
them himself. The master or part owner may be a charterer. Civil Code Cal. § 1959; Civil Code Dak. § 1127.
"A charter party may be a contract for the lease of the
vessel, or for a special service to be rendered by the owner
of the vessel. Where, as is very frequently the case, the
shipowner undertakes to carry a cargo, to be provided by
the charterer, on a designated voyage, the arrangement is
* * * a mere contract of affreightment." United States
v. Hvoslef, 237 U. S.' 1, 35 S.Ct. 459, 460, 59 L. Ed. 813, Ann.
Cas.1916A, 286.
CHARTERED SHIP. A ship hired or freighted;
a ship which is the subject-matter of a charterparty.
CHARTERER. In mercantile law. One who charters (i. e., hires or engages) a vessel for a voyage;
a freighter. 2 Steph.Comm. 184; 3 Kent, Comm.
137; Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 15
L.R.A. 262.
CHARTIS REDDENDIS. (For returning the charters.) An ancient writ which lay against one who
had charters of feoffment intrusted to his keeping
and refused to deliver them. Reg.Orig. 159.
CHARTOPHYLAX. In old European law. A
keeper of records or public instruments; a chartulary; a registrar. Spelman.
CHARLIE. In old English law. A plow. Bestes
des char g es; beasts of the plow.
Common Chase
In old English law. A place where
were entitled to hunt wild animals.
all • alike
CHASSIS. As applied to a motor car,- the rectangular metal framework, as distinguished from
its body and seats, but including its accessories
for propulsion, as the tanks, motor, etc., and general running gear. Kansas City Automobile
School Co. v. Holcker-Elberg Mfg. Co., Mo.App.,
182 S.W. 759, 761.
CHASTE. Never voluntarily having had unlawful
sexual intercourse. Marchand v. State, 113 Neb.
87, 201 N.W. 890, 891. An unmarried woman who
has had no carnal knowledge of men. New v.
State, 141 Tex.Cr.R. 536, 148 S.W.2d 1099, 1101.
One who falls from virtue and afterwards reforms is
chaste within the meaning of the seduction statutes. Wood
v. State, 48 Ga. 288, 15 Am.Rep. 664; People v. Weinstock,
27 N.Y.Cr.R. 53, 140 N.Y.S. 453, 456.
CHASTE CHARACTER. Denoting purity of mind
and innocence of heart;—not limited merely to unlawful sexual intercourse. State v. Wilcoxen, 200
Iowa, 1250, 206 N.W. 260, 261.
As used in statutes, means actual personal virtue. It
may include the character of one who was formerly
unchaste but is reformed. Boak v. State, 5 Iowa, 430;
People v. Nelson, 153 N.Y. 90, 46 N.E. 1040, 60 Am.St.Rep.
592.
CHASTITY. Purity; continence.
It means that virtue which prevents the unlawful intercourse of the sexes; the state of purity or abstinence from
unlawful sexual connection, People v. Kehoe, 123 Cal. 224,
55 P. 911, 69 Am.St.Rep. 52; actual personal virtue and
character, and not a mere external reputation for chastity.
People v. Weinstock, 27 N.Y.Cr.R. 53, 140 N.Y.S. 453, 457.
See Chaste.
CHATTEL. An article of personal property; any
species of property not amounting to a freehold
or fee in land. People v. Holbrook, 13 Johns., N.Y.,
94; U. S. v. Sischo, C.C.A.Wash., 270 F. 958, 961.
A thing personal and movable. Castle v. Castle,
C.C.A.Haw., 267 F. 521, 522. Things which in law
are deemed personal property, they are divisible
into chattels real and chattels personal.
The term "chattels" is a more comprehensive one than
"goods," as it includes animate as well as inanimate property. 2 Chit.Bl.Comm. 383, note. In a devise, however,
they may be of the same import. Shep.Touch. 447; 2
Fonbl. Eq. 335.
Chattel Interest
An interest in corporeal hereditaments less than
a freehold. 2 Kent, Comm. 342.
CHASE. The liberty or franchise of hunting,
one's self, and keeping protected against all other
Personal Chattels
persons, beasts of the chase within a specified district, without regard to the ownership of the land.
Movable things. 2 Bl.Comm. 387; 2 Kent, 340;
2 Bl.Comm. 414-416.
Co.Litt. 48a; 4 Co. 6; In re Gay, 5 Mass. 419;
The act of acquiring possession of animals ferce Miller v. Hirschmann, 170 Md. 145, 183 A. 259,
263.
naturce by force, cunning, or address.
Evidences of debt are chattels personal. Greene Line
A privileged place for preservation of deer and
Terminal Co. v. Martin, 122 W.Va. 483, 10 S.E.2d 901, 906.
beasts of the forest. It is commonly less than a
forest and of larger compass than a park. Every
Real Chattels
forest is a chase, but every chase is not a forest.
It differs from a park in that it is not inclosed,
Such as concern, or savor of, the realty, such as
yet it must have certain metes and bounds. Manleasehold estates; interests issuing out of, or
wood, 49: Termes de la Ley.
annexed, to, real estate; such chattel interests as
299
CHATTEL
CHAUFFEUR. An operator who directly or indirectly receives compensation for operating motor vehicle. Turner v. State, 226 Ala. 269, 146 So.
601. Operators who drive jitneys in cities and
towns for hire, Day v. Bush, 18 La.App. 682, 139
So. 42, 44. Person employed or paid to operate,
drive and attend car. People v. Fulton, 96 Misc.
663, 162 N.Y.S. 125, 126; Des Moines Rug Cleaning
Co. v. Automobile Underwriters, 215 Iowa 246,
245 N.W. 215, 217; State v. Depew, Md., 175 Md.
274, 1 A.2d 626, 627.
devolve after the manner of realty. Mozley &
Whitley; 2 Bl.Comm. 386; In re Dalton's Estate,
183 Iowa, 1013, 168 N.W. 332, 334; Intermountain
Realty Co. v. Allen, 60 Idaho 228, 90 P.2d 704, 706,
122 A.L.R. 647; Keystone Pipe & Supply Co. v.
Crabtree, 174 Okl. 562, 50 P.2d 1086, 1088. An
interest in real estate less than freehold, Lincoln
Nat. Bank & Trust Co. of Fort Wayne v. Nathan,
215 Ind. 178, 19 N.E.2d 243, 249.
CHATTEL MORTGAGE. A mortgage on chattels.
O'Connor v. Hassett, 207 Iowa, 155, 222 N.W. 530.
A transfer of some legal or equitable right in personal property or creation of a lien thereon as
security for payment of money or performance of
some other act, Miller v. Eagle, Star & British
Dominions Ins. Co., Limited, of London, England,
United States Branch, New York, 146 S.C. 123, 143
S.E. 663, 666; Columbia Cas. Co. v. Sodini, 159
Kan. 478, 156 P.2d 524, 528; Anglo-American Mill
Co. v. First Nat. Bank, 76 Colo. 57, 230 P. 118,
120; subject to defeasance on performance of the
conditions. Personal Finance Co. of Providence v.
Henley-Kimball Co., R.I., 1 A.2d 121, 124, 117 A.L.
R. 1476; Thomas, Mortg. 427.
Test whether person is a chauffeur is whether he operated motor vehicle in whole or part-time employment, whether he was at such time an employee, servant, agent, or
independent contractor, and whether he was paid for his
service. Maryland Casualty Co. v. Cronholm, D.C.Tex., 32
F.Supp. 375, 377.
CHAUMPERT. A kind of tenure mentioned in a
patent of 35 Edw. III. Cowell; Blount.
CHAUNTRY RENTS. Money paid to the crown
by the servants or purchasers of chauntry-lands.
See Chantry.
CHEAT, v. To deceive and defraud. State v.
Mastin, 277 Mo. 495, 211 S.W. 15, 18; Moore v.
State, 92 Ind.App. 150, 168 N.E. 202, 203. It necessarily implies a fraudulent intent. Clolinger v.
Callahan, 204 Ky. 33, 263 S.W. 700, 702.
An instrument of sale of personalty conveying title td
mortgagee with terms of defeasance; and, if the terms of
redemption are not complied with, then, at common law,
the title becomes absolute. Stewart v. Slater, 6 Duer
( N. Y.) 99; In re Packard Press, C.C.A.N.Y., 5 F.2d 633,
635. A bill of sale with a defeasance clause incorporated in
it. Monongahela Ins. Co. v. Batson, 111 Ark. 167, 163 S.W.
510, 511; Bank of Dillon v. Murchison, C.C.A.4, 213 F. 147,
151.
An absolute pledge, to become an absolute interest if not
redeemed at a fixed time. Cortelyou v. Lansing, 2 Caines,
Cas., N.Y., 200, per Kent, Ch.
A conditional sale of chattel as security for debt or performance of some other obligation. Jones, Chat. Mortg.
§ 1. Allen v. Steiger, 17 Colo. 552, 31 P. 226; Adler, Salzman & Adler v. Ammerman Furniture Co., 100 Conn. 223,
123 A. 268, 269.
A pledge is distinguished from a chattel mortgage in
that in a mortgage, the title is transferred; in a pledge,
the possession. Jones, Mortg. § 4; Security Trust Co. v.
Edwards, 90 N.J.Law, 558, 101 A. 384, 385, L.R.A.1917F,
273; Thompson v. Dollivdr, 132 Mass. 103; Thoen v. First
Nat. Bank, 199 Minn. 47, 271 N.W. 111, 113; In pledge, the
pawnee has only a special property in the thing deposited.
Evans v. Darlington, 5 Blackf., Ind., 320.
A conditional sale is distinguished from a chattel mortgage in that the purchaser has merely a right to purchase,
and no debt or obligation exists on the part of the vendor. Weathersly v. Weathersly, 40 Miss. 462, 90 Am.Dec.
344; Gomez v. Kamping, 4 Daly, N.Y., 77. In mortgage,
title passes; in conditional sale possession is transferred
and title retained. Kettwig v. Aero Inv. Co., 191 Minn. 500,
254 N.W. 629.
The words "cheat and defraud" usually mean to induce
a person to part with the possession of property by reason
of intentionally false representations relied and acted upon
by such person to his harm. Antonio Pepe Co. v. Apuzzo, 98
Conn. 807, 120 A. 681, 682; They include not only the crime
of false pretenses, but also all civil frauds. Hinshaw v.
State, 188 Ind. 147, 122 N.E. 418, 419. They include all
tricks, devices, artifices, or deceptions used to deprive another of property or other right. State v. Parker, 114
Conn. 354, 158 A. 797, 800.
CHEAT, n. Swindling; defrauding. "Deceitful
practices in defrauding or endeavoring to defraud
another of his known right, by some willful device,
contrary to the plain rules of common honesty."
Hawk.P.C. b. 2, c. 23, § 1. "The fraudulent obtaining the property of another by any deceitful and
illegal practice or token (short of felony) which
affects or may affect the public." Steph.Crim.
Law, 93.
Cheats, punishable at common law, are such
cheats (not amounting to felony) as are effected
by deceitful or illegal symbols or tokens which
may affect the public at large, and against which
common prudence could not have guarded. 2
Whart.Crim.Law, § 1116; 2 East, P.C. 818; Von
Mumm v. Frash, C.C.N.Y., 56 F. 836; State v.
Parker, 43 N.H. 85.
CHATTEL REAL. All interests in real estate of
lesser dignity than a freehold estate, and which
lesser estates or interest descended under the rules
for devaluation of personal property and not as
freehold or fee simple estates. Intermountain
Realty Co. v. Allen, 60 Idaho 228, 90 P.2d 704, 705,
122 A.L.R. 647.
CHAUD-MEDLEY. A homicide committed in the
heat of an affray and while under the influence of
passion; it is thus distinguished from chancemedley, which is the killing of a man in a casual
affray in self-defense. 4 Bl.Comm. 184. It has
been said, however, that the distinction is of no
great importance. See 1 Russ.Crimes, 660.
CHEATERS, or ESCHEATORS, were officers appointed to look after the king's escheats, a duty
which gave them great opportunities of fraud and
oppression, and in consequence many complaints
were made of their misconduct. Hence it seems
that a cheater came to signify a fraudulent person, and thence the verb to cheat was derived.
Wharton.
CHECK, v. To control or restrain; to hold within
bounds. To verify or audit; to verify, guard, or
examine the work of another. Marsh v. State, 125
300
CHEMIS
Ark. 282, 188 S.W. 815, 816; State v. Hearn, 115
Ohio St. 340, 154 N.E. 244, 245. Particularly used
with reference to the control or supervision of
one department, bureau, office, or person over
another.
As used in initiative statute, to compare names of signer
of petition against official registration list. Halgren v.
Welling, 91 Utah, 16, 63 P.2d 550, 554.
CHECK, n. A commercial device intended for use
as a temporary expedient for actual money, and
generally designed for immediate payment, and
not for circulation. Kennedy v. Jones, 140 Ga. 302,
78 S.E. 1069, 1070, Ann.Cas.1914D, 355; Merchants'
Nat. Bank v. Bank, 10 Wall. 647, 19 L.Ed. 1008.
A draft for payment of money. Wright v. Loring, 351
Ill. 584, 184 N.E. 865, 866. An order for payment of money.
Glennan v. Rochester Trust & Safe Deposit Co., 209 N.Y.
12, 102 N.E. 537, 539, 52 L.R.A.,N.S., 302, Ann.Cas.1915A,
441; Weiss v. Fenwick, 111 N.J.Eq. 385, 162 A. 609, 611;
Anderson v. National Bank of Tacoma, 146 Wash. 520, 264
P. 8, 10. A request to pay money, Standard Factors Corporation v. Manufacturers Trust Co., 182 Misc. 701, 50 N.Y.
S.2d 10, 13.
A draft or order upon a bank or banking-house, purporting to be drawn upon a deposit of funds, for the payment at all events of a certain sum of money to a certain
person therein named, or to him or his order, or to bearer,
and payable instantly on demand. 2 Daniel, Neg.Inst. §
1566; Bank v. Wheaton, 4 R.I. 33; Economy Fuse & Mfg.
Co. v. Standard Electric Mfg. Co., 359 Ill. 504, 194 N.E.
922, 924.
A bill of exchange drawn on a bank payable on demand.
Commercial & Savings Bank Co. of Bellafontaine, Ohio, v.
Citizens' Nat. Bank of Franklin, 68 Ind. App. 417, 120 N.E.
670, 674; Bell-Wayland Co. v. Bank of Sugden, 95 Okl. 67,
218 P. 705, 706; Thomas v. Berger, 118 Pa.Super. 422, 180
A. 32. A check differs from an ordinary bill of exchange
in that it is drawn on a bank or bankers, and is payable
i mmediately on presentment, without days of grace; it is
payable immediately on presentment, and no acceptance as
distinct from payment is required; it is supposed to be
drawn upon a previous deposit'of funds, and is an absolute
appropriation of so much money in the hands of the bankers to the holder of the check. Merchants' Nat. Bank v.
State Nat. Bank, 10 Wall. 647, 19 L.Ed. 1008; People v.
Compton, 123 Cal. 403, 56 P. 44.
The term "check," within the ordinary meaning of that,
term, includes "draft," the only distinction being that in
a draft the drawer is a bank, while in the ordinary check
the drawer is an individual. Leach v. Mechanics' Say.
Bank, 202 Iowa, 899, 211 N.W. 506, 508, 50 A.L.R. 388.
A check is a contract. Deal v. Atlantic Coast Line R.
Co., 225 Ala. 533, 144 So. 81, 82, 86 A.L.R. 455; Roff v.
Crenshaw, dal.App., 159 P.2d 661, 662.
Cashier's Check
One issued by an authorized officer of a bank directed to
another person, evidencing that the payee is authorized
to demand and receive upon presentation from the bank the
amount of money represented by the check. State v. Tyler
County State Bank, Tex.Com.App., 277 S.W. 625, 627, 42 A.
L.R. 1347. A form of a check by which the bank lends its
credit to the purchaser of the check, the purpose being to
make it available for immediate use in banking circles.
Duke v. Johnson, 127 Wash. 601, 221 P. 321, 322. A bill of
exchange drawn by a bank upon itself, and accepted by the
act of issuance. Anderson v. Bank of Tupelo, 135 Miss. 351,
100 So. 179; In its legal effect, it is the same as a certificate of deposit, certified check or draft. Montana-Wyoming Ass'n of Credit Men v. Commercial Nat. Bank of
Miles City, 80 Mont. 174, 259 P. 1060, 1061. An acknowledgment of a debt drawn by bank upon itself. In re
Liquidation of State Bank of Binghamton, 152 Misc. 579,
274 N.Y.S. 41.
Crossed Check
A check crossed with two lines, between which are either
the name of a bank or the words "and company," in full
or abbreviated. In the former case, the banker on whom
it is drawn must not pay the money for the check to any
other than the banker named; in the latter case, he must
not pay it to any other than a banker. 2 Steph.Comm.
118, note c. And see 7 Exch. 389; [19031 A.C. 240; Farmers' Bank v. Johnson, King & Co., 134 Ga. 486, 68 S.E. 85,
30 L.R.A.,N.S., 697.
Forged Check
A check on which the maker's name is forged-not one
which has forged indorsements. Kleinman v. Chase Nat.
Bank of City of New York, .124 Misc. 173, 207 N.Y.S. 191,
193. See, also, International Union Bank v. National Surety Co., 245 N.Y. 368, 157 N.E. 269, 270. A check which is
created as a result of a criminal act of forgery. Samples
v. Milton County Bank, 34 Ga.App. 248, 129 S.E. 170.
Memorandum Check
A check given by a borrower to a lender, for the amount
of a short loan, with the understanding that it is not to be
presented at the bank, but will be redeemed by the maker
himself when the loan falls due. This understanding is
evidenced by writing the word "Mem." on the check. This
is not unusual among merchants. See U. S. v. Isham, 17
Wall. 502, 21 L.Ed. 728; Franklin Bank v. Freeman, 16
Pick., Mass., 539; Story, Pr.Notes § 499.
Traveler's" Check
See that title.
CHECK-BOOK, A book containing blank checks
on a particular bank or banker.
CHECK-OFF SYSTEM. Deduction by employer
from pay of employees of sums and payment of
such sums to union. Pacific Mills v. Textile Workers' Union of America, Local No. 254, 197 S.C.
330, 15 S.E.2d 134, 136, 135 A.L.R. 497; Local 60
of Industrial Union of Marine and Shipbuilding
Workers of America v. Welin Davit and Boat
Corporation, 133 N.J.Eq. 551, 33 A.2d 708, 709;
Borderland Coal Corporation v. International Organization of United Mine Workers of America, D.
C.Ind., 275 F. 871, 873.
CHECK-ROLL. In English law. A list or book,
containing the names of such as are attendants
on, or in the pay of, the queen or other great
personages, as their household servants.
CHECKER. The old Scotch form of exchequer.
CHECKERBOARD SYSTEM. This term, with
reference to entries on lands, means one entry
built on another, and a third on the second. Sequatchie & South Pittsburg Coal & Iron Co. v.
Tennessee Coal, Iron & R. Co., 131 Tenn, 221, 174
S.W. 1122.
CHEFE, In Anglo-Norman law. Were or weregild; the price of the head or person, (capitis
pretium.)
CHEMERAGE. In old French law. The privilege or prerogative of the eldest. A provincial
term derived from chemier, (q. v.) Guyot, Inst.
CHEMIER. In old French law. The eldest born.
A term used in Poitou and other places. Guyot,
Inst.
CHEMIN. Fr. The road wherein every man
goes; the king's highway. Called in law Latin
via regia. Termes de la Ley; Cowell; Spelman,
Gloss.
CHEMIS. In old Scotch law. A chief dwelling
or mansion house.
301
CHEQUE
CHEQUE. A variant of check (q. v.).
CHEROKEE NATION. One of the civilized Indian tribes. See Indians; Indian Tribe.
CHEVAGE. A sum of money paid by villeins to
their lords in acknowledgment of their bondage.
It was exacted for permission to marry, and also permission to remain without the dominion of the lord. When
paid to the king, It was called subjection. Termes de la
Ley; Co.Litt. 140 a;, Spelman, Gloss.
Chevage seems also to have been used for a
sum of money yearly given to a man of power for
his countenance and protection as a chief or leader. Termes de la Ley; Cowell.
CHEVANTIA. In old records. A loan or advance
of money upon credit. Cowell.
CHEVISANCE. An agreement or composition;
an end or order set down between a creditor
or debtor; an indirect gain in point of usury,
etc.; also an unlawful bargain or contract. Wharton.
CHEVITLE. In old records. Pieces of ground,
or heads at the end of plowed lands. Cowell.
CHEZE. A homestead or homesfall which is accessory to a house.
CHICANE. Swindling; shrewd cunning. The use
of tricks and artifice.
CHICKASAW NATION. One of the civilized Indian tribes. See Indians; Indian Tribe.
CHIEF. One who is put above the rest. Principal; leading; head; eminent in power or importance; the best or most important or valuable of
several; paramount; of leading importance.
Declaration in chief is a declaration for the principal cause of action. 1 Tidd, Pr. 419.
Examination in chief is the first examination of
a witness by the party who produces him. 1
Greenl.Ev. § 445.
Tenant in chief. See "Chief, tenant in," infra.
CHIEF BARON. The presiding judge of the English court of exchequer; answering to the chief
justice of other courts. 3 Bl.Comm. 44; 3 Steph.
Comm. 401.
CHIEF CLERK. The principal clerical officer of
a bureau or department, who is generally charged,
subject to the direction of his superior officer,
with the superintendence of the administration of
the business of the office.
CHIEF .JUDGE. In some states, the presiding
judge, as in the New York Court of Appeals and
the Maryland Court of Appeals. The term is also
used in 1 Tyler (Vt.) with "assistant" judge for
the puisne. It is likewise applied to the judge of
the London bankruptcy court. In general, the
term is equivalent to "presiding justice" or "presiding magistrate." Bean v. Loryea, 81 Cal. 151,
22 P. 513.
CHIEF JUSTICE OF ENGLAND. The presiding
judge in the king's bench division of the high court
of justice, and, in the absence of the lord chancellor, president of the high court, and also an
ex officio judge of the court of appeals. The full
title is "Lord Chief Justice of England."
CHIEF JUSTICE OF THE COMMON PLEAS.
In England. The presiding judge in the court of
common pleas, and afterwards in the common
pleas division of the high court of justice, and
one of the ex officio judges of the high court of
appeal.
CHIEF JUSTICIAR. In old English law. A high
judicial officer and special magistrate, who presided over the aula regis of the Norman kings,
and who was also the principal minister of state,
the second man in the kingdom, and, by virtue of
his office, guardian of the realm in the king's absence. 3 B1.Comm. 38.
CHIEF LORD. The immediate lord of the fee,
to whom the tenants were directly and personally
responsible. Burton, R.P. 317.
CHIEF MAGISTRATE. The head of the executive
department of government of a nation, state, or
municipal corporation. McIntire v. Ward, 3
Yeates, Pa., 424.
CHIEF OFFICE. Office of paramount importance
or the leading office. City of Newark v. New Jersey Inv. Co., 18 N.J.Misc. 182, 11 A.2d 730, 731.
CHIEF PLEDGE. The borsholder, or chief of the
borough. Spelman.
CHIEF RENTS. In English law. Were the annual payments of freeholders of manors; and
were also called "quit-rents," because by paying
them the tenant was freed from all other rents
or services. 2 Bl.Comm. 42.
CHIEF, TENANT IN. In English feudal law.
All the land in the kingdom was supposed to be
holden mediately or immediately of the king, who
was styled the "Lord Paramount," or "Lord Above
All;" and those that held immediately under him,
in right of his crown and dignity, were called his
tenants "in capite" or "in chief," which was the
most honorable species of tenure, but at the same
time subjected the tenant to greater and more
burdensome services than inferior tenures did.
Brown. One who held directly of the king. 1
Washb.R.P. *19.
CHIEFRIE. In feudal law. A small rent paid to
the lord paramount.
CHILD. See Children.
CHILDREN. Progeny
Child of tender age or years
Such a child must be less than 14 years old.
Barnhill's Adm'r v. Mt. Morgan Coal Co., D.C.Ky.,
215 F. 608, 610. A minor more than 15 years of
age is not included within the meaning of the
CHIEF JUSTICE. The presiding, eldest, or prin- term. Paulk & Fossil v. Lee, 31 Ga.App. 629, 121
cipal judge of a court of justice.
S.E. 845.
302
CHILDREN
Child's Part
A "child's part," which a widow, by statute in
some states, is entitled to take in lieu of dower
or the provision made for her by will, is a full
share to which a child of the decedent would be
entitled, subject to the debts of the estate and the
cost of administration up to and including distribution. Benedict v. Wilmarth, 46 Fla. 535, 35
So. 84.
Illegitimate Child
A bastard (q. v.).
Legitimate Child
One born in lawful wedlock.
Natural Child
A bastard (q. .v.); a child born out of lawful
wedlock. But in a statute declaring that adopted
shall have all the rights of "natural" children, the
word "natural" was used in the sense of "legitimate." Barns v. Allen, 9 Am.Law Reg., 0.S., 747.
In Louisiana. Illegitimate children who have been
acknowledged by the father. Civ.Code La. art.
202. In . the civil law. A child by natural relation
or procreation; a child by birth, as distinguished
from a child by adoption. Inst. 1, 11, pr.; Id. 3, 1,
2; Id. 3, 8 pr. See, also, Conner v. Parsley, 192
Ky. 827, 234 S.W. 972, 974; Middletown Trust Co.
v. Gaffey, 96 Conn. 61, 112 A. 689, 691.
A child by concubinage, in contradistinction to
a child by marriage. Cod. 5, 27.
Posthumous Child
One born after the father's death.
Quasi Posthumous Child
In the civil law. One who, born during the life
of his grandfather, or other male ascendant, was
not his heir at the time he made his testament,
but who by the death of his father became his
heir in his life-time. Inst. 2, 13, 2; Dig. 28, 3, 13.
The word "child" in statutes often means either child
or children. Cunningham v. Dunn, 84 W.Va. 593, 100 S.E.
410, 411. See Children.
"Children" is ordinarily a word of description, limited to
persons standing in the same relation, and has the same
effect as if all the names were given. Rowley v. Currie, 94
N.J.Eq. 606, 120 A. 653, 656.
The words "child or children," in their usual sense, are
words of purchase. Phillips v. Mercantile Trust Co. of
Baltimore, 195 A. 394, 395, 173 Md. 290; Kelly v. Kelly,
176 Ark. 548, 3 S.W.2d 305; Deener v. Watkins, 191 Ark.
776, 87 S.W.2d 994, 995; they may, however, be used as
words of limitation, Bonds v. Hutchison, 199 S.C. 197, 18 S.
E-2d 661, 662, 663; Crawford v. Withrow, 314 Pa. 497, 171
A. 894, 895; Young v. Munsey Trust Co., 72 App.D.C. 73,
111 F.2d 514, 515.
The terms "child" .or "children" may include or apply
to :
Adopted children, Dyer v. Lane, 202 Ark. 571, 151 S.W.2d
678, 680; Ex parte Cline, 213 Ala. 599, 105 So. 686, 687.,
Ryan v. Foreman, 262 Ill. 175, 104 N.E. 189; but some decisions hold that adapted children are not included in absence of manifest intention, Savells v. Brown's Guardian,
187 Ky. 134, 218 S.W. 462, 463; Melek v. Curators of University of Missouri, 213 Mo.App. 572, 250 S.W. 614, 615;
for cases holding that "child" or "children" does not include adopted children, see Everitt v. LaSpeyre, 195 Ga.
377, 24 S.E.2d 381, 383; Moffet v. Cash, 346 Ill. 287, 178 N.
E. 658, 659; In re Sandford's Estate, 160 Misc. 898, 290 N.
Y.S. 959, 960; Adult child, Mindlin v. Consolidated Taxpayers Mut. Ins. Co., 173 Misc. 961, 19 N.Y.S.2d 340, 342;
State ex rel. Buerk v. Calhoun, 330 Mo. 1172, 52 S.W.2d
742, 83 A.L.R. 1393; after-born child, Westport PaperBoard Co. v. Staples, 127 Conn. 115, 15 A.2d 1, 5; contra,
Albers v. Donovan, 371 Ill. 458, 21 N.E.2d 563, 565; all
lineal descendants. Boston Safe Deposit & Trust Co. v.
Park, 307 Mass. 255, 29 N.E.2d 977, 980; blood relations.
In re Fletcher's Estate, 103 Pa.Super. 69, 157 A. 810, 811;
child by second marriage, Nelson v. Estill, 175 Ga. 526, 165
S.E. 820, 823; child that would inherit from an intestate
parent, In re Gossett's Estate, 46 N.M. 344, 129 P.2d 56, 58,
60, 142 A.L.R. 1441; child en ventre sa mere, Valley Nat.
Bank v. Hartford Accident & Indemnity Co., 57 Ariz. 276,
113 P.2d 359, 361: Thomson v. Elliott', 152 Misc. 188, 273
N.Y.S. 898; children born in wedlock. Bell v. Phyn, 7 Ves.
458; In re Silva's Estate, 32 Ariz. 573, 261 P. 40, 41. Children by former marriage, In re Freisinger's Will, 263 App.
Div.
970, 33 N.Y.S.2d 196, 197; children by various marria g es of parent named, McMullen v. Block, Tex.Civ.App.,
168 S.W.2d 667, 670; children in first degree. In re Brown's
Estate, 133 Misc. 587, 233 N.Y.S. 426, 430; Children regardless of age, Citizens' Bank of Lancaster v. Foglesong, 326
Mo. 581, 31 S.W.2d 778, 783; correlative of "parent;"
descendant or descendants of first degree, Benners v. First
Nat. Bank of Birmingham, 247 Ala. 74, 22 So.2d 435, 442;
first degree descendants, Spencer v. Title Guarantee Loan
& Trust Co., 222 Ala. 485, 132 So. 730, 731; first generation
of offspring. New York Life Ins. Co. v. Beebe, D.C.Md.,
57 F.Supp. 754, 757.
Grandchildren, Holbrook v. Shepard, 245 N.Y. 618, 157 N.
E. 882; Tucker v. Tucker, 259 Ky. 361, 82 S.W.2d 458, 459,
460; Cherokee Brick Co. v. Bishop, 156 Tenn. 168, 299 S.
W. 770; but, ordinarily, grandchildren are not included,
Lowrey v. Le Fiore, 48 Okl. 235, 149 P. 1112, 1114, Ann.
Cas.1918E, 1001; Sabit v. Safe Deposit & Trust Co. of
Baltimore, 184 Md. 24, 40 A.2d 231, 238; In re Blodgett's
Will, 250 App.Div. 324, 294 N.Y.S. 358, 366; as used in
deeds or wills especially, the term "children" will not be
construed to mean grandchildren, unless a strong case of
intention or context requires it. Greenfield v. Lauritson,
306 Ill. 279, 137 N.E. 818, 819; Davis v. Mitchell, Tenn.
App.,. 178 S.W.2d 889, 904; In re Reed's Estate, 342 Pa. 54,
19 A.2d 365, 366.
Heirs or heirs of the body, Beall v. Beall, 331 Ill. 28, 162
N.E. 152, 154 ; Schwarz v. Rabe, 129 Kan. 430, 283 P. 642,
643 ; Conover v. Code, 184 Ind. 604, 112 N.E. 7, 12 ; Darragh v. Barmore, Tex.Com.App., 242 S.W. 714, 718; but
the intention to use "children" in the sense of "heirs"
must be made clear. Farrell v. Faries, Del., 22 A.2d 380,
384, 385. So, too, the term "heirs" may mean "children,"
Albers v. Donovan, 371 Ill. 458, 21' N.E.2d 563. 565; Lane
v. Citizen's & Southern Nat. Bank, 195 Ga. 828, 25 S.E.2d
800, 804; but the intention to so use the word must be
manifest. Welles v. Pape, 63 Ohio App. 432, 27 N.E.2d
169, 172; For cases holding that "heirs" does not mean
"children" see Erwin Nat. Bank v. Riddle, 18 Tenn.App.
561, 79 S.W.2d 1032, 1038; Triplett v. Triplett, 332 Mo. 870,
60 S.W.2d 13, 15.
Illegitimate children, State ex rel. Herbert v. Hocking
Valley Mining Co., 73 Ohio App. 483, 57 N.E.2d 236, 238;
In re Anonymous, 165 Misc. 62, 300 N.Y.S. 292; but other
decisions have held that the terms exclude illegitimate children, Bank of Montclair v. McCutcheon, 107 N.J.Eq. 564,
152 A. 379, 380; Jacobs v. United States, C.C.A.La., 112 F.
2d 51; Gee v. Commonwealth, 263 Ky. 808, 94 S.W.2d 17,
19; illegitimate children that have been acknowledged or
adopted, Weyerhaeuser Timber Co. v. Marshall, C.C.A.
Wash., 102 F.2d 78, 81; Jenkins v. City of Los Angeles,
60 Cal.App.2d 50, 40 P.2d 45, 46; Hastings v. Rathbone,
194 Iowa, 177, 188 N.W. 960, 962, 23 A.L.R. 392; immediate
offspring or progeny, McQueen v. Stephens, Tex.Civ.App.,
100 S.W.2d 1053, 1055; In re Conant's Estate, 144 Misc.
743, 259 N.Y.S. 885; infant offspring. In re Berg's Estate,
72 N. D. 52, 4 N.W.2d 575, 580, 140 A.L.R. 1312; Issue,
Woodley v. Howse, 133 Kan. 639, 3 P.2d 475, 476; Hodge
v. Lovell's Trustee, 262 Ky. 509, 90 S.W.2d 683, 686. So
too, "issue" may mean "children." Pierson v. Jones, 108
N.J.Eq. 453, 155 A. 541, 542; In re Morningstar's Will,
143 Misc. 620, 257 N.Y.S. 240, 249. Legitimate children,
Dunlavy v. Lowrie, 372 Ill. 622, 25 N.E.2d 67 71: Town of
Plymouth v. Hey, 285 Mass. 357, 189 N.E. 100, 101; Middleton v. Luckenbach S. S. Co., C.C.A.N.Y., 70 F.2d 326, 328;
303
CHILDREN
legitimated child, Brown v. Shwinogee, 128 Okl. 149, 261
P. 920, 921; living children, In re Schuette's Estate, 138
Neb. 568, 293 N.W. 421, 422; Ward v. Ward, 176 Ga. 849,
169 S.E. 120, 121, 122; male or female, Turner v. Metropolitan Life Ins. Co., 56 Cal.App.2d 862, 133 P.2d 859, 861;
Curtis v. Safe Deposit & Trust Co. of Baltimore, 178 Md.
360, 13 A.2d 546, 548; married child, Killian v. Burnham,
191 Okl. 248, 130 P.2d 538, 539; In re Drye, 250 Mich. 210,
229 N.W. 623, 625; minor or minors. Walsh v. Walsh,
Cal.App., 108 P.2d 763, 764; State v. Flath, 59 N.D. 121,
228 N.W. 847, 849; "natural-born children." In re Corr's
Estate, 338 Pa. 337, 12 A.2d 76, 78; natural offspring of
parentage, In re Wait's Estate, Sur., 42 N.Y.S.2d 735, 738,
739; offspring of either sex and of any age, Morris v. Williams, Tex.Civ.App., 92 S.W.2d 541, 544; opposite of
"adult," Miller v. Finegan, 26 Fla. 29, 7 So. 140, 6 L.R.A.
813; Potter v. Golden Rule Grocery Co., 169 Tenn. 240,
84 S.W.2d 364, 365; person under age of 18 years, State v.
Flath, 59 N. D. 121, 228 N.W. 847, 848; person under age of
majority, Wade v. State, 24 Ala.App. 176, 132 So. 71, 72;
posthumous child, Travelers Ins. Co. v. Dudley, 180 Tenn.
191, 173 S.W.2d 142, 144; posthumous, illegitimate child,
Morgan v. Susino Const. Co., 130 N.J.L. 418, 33 A.2d 607,
610.
Contra, Gierak v. Lehigh & Wilkes-Barre Coal Co., 101
Pa.Super. 397, 399; Staker v. Industrial Commission of
Ohio, 127 Ohio St. 13, 186 N.E. 616; quick child, Guiffrida
v. State, 61 Ga.App. 595, 7 S.E.2d 34, 35; sons and daughters, Kimberlin v. Hicks, 150 Kan. 449. 94 P.2d 335, 340;
Stepchildren, Newark Paving Co. v. Klotz, 85 N.J.Law,
432, 91 A. 91, 92; Travelers Ins. Co. v. E. I. Du Pont De
Nemours & Co., Del., 1 Terry 285, 9 A.2d 88, 91.
CHILDWIT, In Saxon law. The right which a
lord had of taking a fine of his bondwoman gotten with child without his license. Termes de la
Ley.
The custom in Essex county, England, whereby
every reputed father of a bastard child was obliged
to pay a small fine to the lord. Cowell.
CHILLING A SALE. The act of bidders or others who combine or conspire to suppress fair competition at a sale, for the purpose of acquiring the
property . at -less than its fair value. Vette v.
Hackman, 292 Mo. 138, 237 S.W. 802, 805.
CHILTERN HUNDREDS. In English law. The
offices of steward or bailiff of His Majesty's three
Chiltern Hundreds of Stoke, Desborough, and
Bonenham; or the steward of the Manor of Northsted. Chiltern Hundreds is an appointment under
the hand and seal of the Chancellor of the Exchequer. May, Parl.Pr. 642.
The stewardship of the Chiltern Hundreds is a nominal
office in the gift of the crown, usually accepted by members of the house of commons desirous of vacating their
seats. By law a member once duly elected to parliament is
compelled to discharge the duties of the trust conferred
upon him, and is not enabled at will to resign it. But by
statute, if any member accepts any office of profit from the
crown, (except officers in the army or navy accepting a new
commission,) his seat is vacated. If, therefore, any member wishes to retire from the representation of the county
or borough by which he was sent to parliament, he applies
to the lords of the treasury for the stewardship of one of
the Chiltern Hundreds, which having received, and thereby
accomplished his purpose, he again resigns the office.
Brown.
CHIMIN. In old English law. A road, way, highway. It is either the king's highway (chiminus
regis) or a private way. The first is that over
which the subjects of the realm, and all others
under the protection of the crown, have free liberty to pass, though the property in the soil itself
belong to some private individual; the last is that
in which one person or more have liberty to pass
over the land of another, by prescription or charter. Wharton. See Chemin.
CHDIINAGE. A toll for passing on a way
through a forest; called in the civil law "pedagium." Cowell. See Co.Litt. 56 a; Spelman,
Gloss.; Termes de la Ley; Baldwin's Ed. of Britton, 63.
CIIIMINUS. The way by which the king and all
his subjects and all under his protection have a
right to pass, though the property of the soil of
each side where the way lieth may belong to a
private man. Cowell.
CHIMNEY MONEY, or HEARTH MONEY. A tax
upon chimneys or hearth; an ancient tax or duty
upon houses in England, now repealed. See
Hearth Money; Fuage.
CHIPPINGAVEL. In old English law. A tax
upon trade; a toll imposed upon traffic, or upon
goods brought to a place to be sold; a toll for
buying and selling. Whishaw; Blount.
CHIRGEMOT, CHIRCHGEMOT. (Also spelled
Chirgemote, Chirchgemote, Circgemote, Kirkmote.) In Saxon law. An ecclesiastical assembly
or court. Spelman. A synod or meeting in a
church or vestry. 4 Inst. 321; Blount; Spelman,
Gloss.; Hen. I. cc. 4, 8; Cunningh.Law Dict.
CHIROGRAPH. In Civil and Canon law. An instrument written out and subscribed by the hand
of the party who made it, whether the king or a
private person. Du Cange; Cowell.
In old English law. A deed or indenture; also
the last part of a fine of land, called more commonly, perhaps, the foot of the fine. Cruise, Dig.
t. 35, c. 2, s. 52.
An instrument of gift or conveyance attested by the subscription and crosses of the witnesses, which was in Saxon
times called "chirographum," and which, being somewhat
changed in form and manner by the Normans, was by them
styled "charta." Anciently when they made a chirograph
or deed which required a counterpart, as we call it, they
engrossed it twice upon one piece of parchment contrariwise, leaving a space between, in which they wrote in
capital letters the word "chirograph," and then cut the
parchment in two through the middle of the word, giving
a part to each party. Cowell; 2 Bla.Comm. 296. See, also,
Charta cyrographata.
In Scotch law. A written voucher for a debt.
Bell.
CHIROGRAPHA. In Roman law. Writings emanating from a single party, the debtor.
CHIROGRAPHER OF FINES. In English law.
The title of the officer of the common pleas who
engrossed fines in that court so as to be acknowledged into a perpetual record. Cowell.
CHIROGRAPHUM. In Roman law. A handwriting; that which was written with a person's own
hand. An obligation which a person wrote or
subscribed with his own hand; an acknowledgment of debt, as of money received, with a promise to repay. An evidence or voucher of debt; a
security for debt. Dig. 26, 7, 57, pr. A right of
action for debt.
304
CHOSEN
CHIROGRAPHUM APUD DEBITOREM REPERTUM PRIESUMITUR SOLUTUM. An evidence of
debt found in the debtor's possession is presumed
to be paid. Halk.Max. 20; Bell, Dict. See 14 M.
& W. 379.
CHIROGRAPHUM NON EXTANS PR4ESUMITUR SOLUTUM. An evidence of debt not existing is presumed to have been discharged. Tray.
Lat.Max. 73.
CHIROPODIST. One who treats diseases or malformations of the hands or feet, especially a surgeon for the feet, hands, and nails; a cutter or
extractor of corns and callosities. State v. Armstrong, 38 Idaho 493, 225 P. 491, 33 A.L.R. 835.
CHIROPODY. The art of removing corns and
callouses. State v. Armstrong, 38 Idaho 493, 225
P. 491, 493, 33 A.L.R. 835.
CHIROPRACTIC, CHIROPRACTICS. A system
of healing that treats disease by manipulation of
the spinal column. Joyner v. State, 181 Miss. 245,
179 So. 573, 575, 115 A.L.R. 954. A system of therapeutic treatment, through adjusting of articulations of human body, particularly those of the
spine. Walkenhorst v. Kesler, 92 Utah 312, 67
P.2d 654, 662. The specific science that removes
pressure on the nerves by the adjustment of the
spinal vertebrae. State v. Boston, 226 Iowa 429,
284 N.W. 143, 144.
CHIROPRACTOR. One who practices the system
of chiropractic. Cummings v. State, 214 Ala. 209,
106 So. 852, 854. One professing a system of manipulations which aims to cure disease by the
mechanical restoration of displaced or subluxated
bones, especially the vertebra, to their normal relation. Board of Medical Examiners of State of
Utah v. Freenor, 47 Utah, 430, 154 P. 941, 942, Ann.
Cas.1917E, 1156.
CHIRURGEON. The ancient denomination of a
surgeon.
CHIVALRY. In feudal law. Knight-service Tenure in chivalry was the same as tenure by knightservice. 2 Bl.Comm. 61, 62.
CHIVALRY, COURT OF. See Court of Chivalry.
CHIVALRY, TENURE BY. Tenure by knightservice. Co.Litt.
CHOATE LIEN. Lien which is perfected so that
nothing more need be done to make it enforcible.
Identity of lienor, property subject to lien and
amount of lien are all established. Walker v.
Paramount Engineering Co., C.A.Mich., 353 F.2d
445, 449; U. S. v. City of New Britain, Conn.,
Conn., 74 S.Ct. 367, 369, 347 U.S. 81, 98 L.Ed. 520.
The lien must be definite and not mere ascertainable in the future by taking further steps. Gower
v. State Tax Commission, 295 P.2d 162, 207 Or. 288.
CHOKE DAMP. A common name for carbonic
acid;—so called from its extinguishing of flame
and animal life. Wells' Adm'r v. Sutherland Coal
&c Coke Co., 116 Va. 1003, 83 S.E. 384, 385.
Black's Law Dictionary Revised 4th Ed.-20
CHOP-CHURCH. A word mentioned in 9 Hen.
VI. c. 65, by the sense of which it was in those
days a kind of trade, and by the judges declared
to be lawful. But Brooke, in his abridgment, says
it was only permissible by law. It was, without
doubt, a nickname given to those who used to
change benefices, as to "chop and change" is a
common expression. Jacob.
CHOPS. The mouth of a harbor. Pub.St.Mass.
1882, p. 1288.
CHORAL. In ancient times a person admitted to
sit and worship in the choir; a chorister.
CHOREPISCOPUS. In old European law. A
rural bishop, or bishop's vicar. Spelman; Cowell.
CHOSE. Fr. A thing; an article of personal
property. A chose is a chattel personal, (Williams, Pers.Prop. 4,) and is either in action or in
possession. See Chose in Action and Chose in
Possession, infra.
Chose local. A local thing; a thing annexed to
a place, as a mill. Kitchin, fol. 18; Cowell;
Blount.
Chose transitory. A thing which is movable, and
may be taken away or carried from place to place.
Cowell; Blount.
CHOSE IN ACTION. A personal right not reduced into possession, but recoverable by a suit at
law. North Carolina Bank & Trust Co. v. Williams, 160 S.E. 484, 485, 201 N.C. 464. A right
to personal things of which the owner has not the
possession, but merely a right of action for their
possession. 2 Bl.Comm. 389, 397; 1 Chit.Pr. 99.
The phrase includes all personal chattels which
are not in possession; 11 App.Cas. 440; Powers v.
Fisher, 279 Mich. 442; 272 N.W. 737, 739; and all
property in action which depends entirely on contracts express or implied; Castle v. Castle, C.C.A.
Hawaii, 267 F. 521, 523. A right to receive or recover a debt, demand, or damages on a cause of
action ex contractu or for a tort or omission of a
duty. Comyns, Dig. Biens. Moran v. Adkerson,
168 Tenn. 372, 79 S.W.2d 44, 45. Pickering v.
Peskind, 43 Ohio App. 401, 183 N.E. 301, 303. A
right to recover by suit a personal chattel. Garford Motor Truck Co. v. Buckson, 4 W.W.Harr.
103, 143 A. 410, 411. Assignable rights of action
ex contractu and perhaps ex delicto. Coty v.
Cogswell, 100 Mont. 496, 50 P.2d 249, 250. Personalty to which the owner has a right of possession
in future, or a right of immediate possession,
wrongfully withheld. And see Tumy v. Mayer,
289 Ill. 458, 124 N.E. 661, 662.
CHOSE IN POSSESSION. A personal thing of
which one has possession. A thing in possession,
as distinguished from a thing in action. Vawter
v. Griffin, 40 Ind. 601. See Chose in Action. Taxes and customs, if paid, are a chose in possession;
if unpaid, a chose in' action. 2 Bl.Comm. 408.
CHOSEN FREEHOLDERS. Under the municipal
organization of the state of New Jersey, each
305
CHOUT
county has a board of officers, called by this name,
composed of representatives from the cities and
townships within its limits, and charged with administering the revenues of the county. They correspond to the "county commissioners" or "supervisors" in other states.
CHROMO. A chromolithograph;—a picture produced from drawings on stones, each color being
represented by a different stone. . Stecher Lithographic Co. v. Dunston Lithograph Co., D.C.N.Y.,
233 F. 601, 602.
CHOUT. In Hindu law. A fourth, a fourth part
of the sum in litigation. The "Mahratta chout" is
a fourth of the revenues exacted as tribute by the
Mahrattas.
CHRONIC. With reference to diseases, of long
duration, or characterized by slowly progressive
symptoms; deep-seated and obstinate, or threatening a long continuance;—distinguished from
acute. Golden v. Lerch Bros., 211 Minn. 30, 300
N.W. 207, 211.
CHOW SUM. A Chinese name for ginseng roots
which have been dried and treated with sugar and
honey, such treatment having the purpose and
effect of enhancing their value commercially but
not therapeutically. Tong & Co. v. U. S., 12 Ct.
Cust.App. 32, 33.
CHRENECRUDA. Under the Salic law. This
was a ceremony performed by a person who was
too poor to pay his debt or fine, whereby he applied to a rich relative to pay it for him. It consisted (after certain preliminaries) in throwing
green herbs upon the party, the effect of which
was to bind him to pay the whole demand.
CHRISTIAN. Pertaining to Jesus Christ or the
religion founded by him; professing Christianity.
As a noun, it signifies one who accepts and professes to live by the doctrines and principles of
the Christian religion; it does not include Mohammedans, Jews, pagans, or infidels. State v.
Buswell, 40 Neb. 158, 58 N.W. 728, 24 L.R.A. 68.
One who believes or professes or is assumed to believe in Jesus Christ, and the truth as taught by
Him. Conway v. Third Nat. Bank & Trust Co.,
118 N.J.Eq. 61, 177 A. 113, 116.
CHRISTIAN NAME. The baptismal name as
distinct from the surname. Stratton v. Foster, 11
Me. 467. The name which is given one after his
birth or at baptism, or is afterward assumed by
him in addition to his family name. Badger Lumber Co. v. Collinson, 97 Kan. 791, 156 P. 724, 725.
A Christian name may consist of a single letter. Wharton; People v. Reilly, 257 Ill. 538, 101 N.E. 54, Ann.Cas.
1914A, 1112. There is no presumption that letters are not
themselves Christian names, and where a letter or letters
appear before a surname they are treated, in the absence
of any showing to the contrary, as the Christian name.
Riley v. Litchfield, 168 Iowa, 187, 150 N.W. 81, 82, Ann.Cas.
1917B, 172.
CHRISTIANITATIS CURIA. The court Christian.
An ecclesiastical court, as opposed to a civil or lay
tribunal. Cowell. See, also, Court Christian.
CHRISTIANITY. The religion founded and established by Jesus Christ. Hale v. Everett, 53 N.
H. 9, 54, 16 Am.Rep. 82; People v. Ruggles, 8
Johns. (N.Y.) 297, 5 Am.Dec. 335.
CHRISTMAS DAY. A festival of the Christian
church, observed on the 25th of December, in
memory of the birth of Jesus Christ.
CHROME YELLOW. A metal largely used as a
yellow pigment. It is an active poison. U. S.
v. R. C. Boeckel & Co., C.C.A.Mass., 221 F. 885,
888.
CHURCH. In its most general sense, the religious
society founded and established by Jesus Christ,
to receive, preserve, and propagate his doctrines
and ordinances.
It may also mean a body of communicants gathered into
church order, Stebbins v. Jennings, 10 Pick. (Mass.) 193;
body or community of Christians, united under one form
of government by the profession of the same faith, and
the observance of the same ritual and ceremonies, McNeilly
v. First Presbyterian Church in Brookline, 243 Mass. 331,
137 N.E. 691, 694; building, Combined Congregations of
District of Columbia v. Dent, 140 F.2d 9, 10, 78 U.S.App.
D.C. 254; congregation, Trustees of Pencader Presbyterian
Church in Pencader Hundred v. Gibson, Del., 22 A.2d 782,
787, 788; organization for religious purposes, Williams v.
Williams, 215 N.C. 739, 3 S.E.2d 334, 338; place where persons regularly assemble for worship, Stubbs v. Texas Liquor Control Board, Tex.Civ.App., 166 S.W.2d 178, 180;
religious society or body, In re . Werner's Will, Sur., 181 N.
Y.S. 433, 434; society of persons who profess the Christian
religion, Church of the Holy Faith v. State Tax Commission, 39 N.M. 403, 48 P.2d 777, 784.
In English ecclesiastical law. An institution established
by the law of the land in reference to religion. 3 Steph.
Comm. 54. The word "church" is said to mean, in strictness, not the material fabric, but the cure of souls and the
right of tithes. 1 Mod. 201.
A congregational church is a voluntary association of
Christians united for discipline and worship, connected
with, and forming a part of, some religious society, having a legal existence. Anderson v. Brock, 3 Me. 248.
Church Building Acts
Statutes passed in England in and since the year
1818, to extend the accommodation afforded by the
national church. 3 Steph.Comm. 152-164.
Church Discipline Act
The statute 3 & 4 Viet. c. 86, containing regulations for trying clerks in holy orders charged with
offenses against ecclesiastical law, and for enforcing sentences pronounced in such cases. Phillim.
Ecc.Law, 1314.
Church of England
A distinct branch of Christ's church, it is also
an institution of the state of which the sovereign
is the supreme head. Wharton. Pawlet v. Clark,
9 Cranch 292, 3 L.Ed. 735.
Church Property
Within constitutional exemption from taxation,
it means property used for religious worship and
instruction. Church of the Holy Faith v. State
Tax Commission, 39 N.M. 403, 48 P.2d 777, 784.
306
CIRCUIT
Church Rate
In English law. A sum assessed for the repair
of parochial churches by the representatives of
the parishioners in vestry assembled. Wharton.
Church Reeve
A church warden; an overseer of a church.
Now obsolete. Cowell.
Church-Scot
In old English law. Customary obligations paid
to the parish priest; from which duties the religious sometimes purchased an exemption for
themselves and their tenants.
Church Wardens
A species of ecclesiastical officers who are intrusted with the care and guardianship of the
church building and property. See 3 Steph.Comm.
90; 1 BIa.Comm. 394; Cowell; Terrett v. Taylor,
9 Cranch, 43, 3 L.Ed. 650.
Fruit Co. v. Riordan, D.C.N.Y., 274 F. 736, 737;
People v. Emmons, 144 N.W. 479, 481, 178 Mich.
126, Ann.Cas.1915D, 425.
Sweet cider. Cider before fermentation, or cider
in which fermentation has been prevented—cider
not yet become hard. U. S. v. Dodson, D.C.Cal.,
268 F. 397, 403. A nonalcoholic beverage composed of the expressed juice of apples. Monroe
Cider Vinegar & Fruit Co. v. Riordan, C.C.A.N.Y.,
280 F. 624, 626.
CINQUE PORTS. Certain important ports or
havens on the south-east coast of England,
towards France. 3 Bl.Comm. 79. Their representatives in parliament and inhabitants were termed
barons. Brande; Cowell; Teanes de la Ley.
And see Round, Feudal England 563.
The 18 & 19 Vict. c. 48, (amended by 20 & 21
Vict. c. 1,) abolished jurisdiction and authority of
the lord warden of the Cinque Ports.
Church-Yard
CIPHER. Ordinarily, a secret or disguised written communication, unintelligible to one without
a key. As applied to telegrams, a "cipher" message is one that is unintelligible. Western Union
Telegraph Co. v. Geo. F. Fish, Inc., 148 Md. 210,
128 A. 14, 16.
Community Church
A name signifying a federation of churches retaining their separate identity and distinctive
doctrines. Christian Church of Vacaville v. Crystal, 78 Cal.App. 1, 247 P. 605, 608.
CIPPI. An old English law term for the stocks,
an instrument in which the wrists or ankles of
petty offenders were confined.
See Cemetery.
CHURCHESSET. In old English law. A certain
portion or measure of wheat, anciently paid to
the church on St. Martin's day; and which, according to Fleta, was paid as well in the time of
the Britons as of the English. Fleta, lib. 1, c. 47,
§ 28.
CHURL. In Saxon law. A freeman of inferior
rank, chiefly employed in husbandry. 1 Reeve,
Eng.Law, 5. A tenant at will of free condition,
who held land from a thane, on condition of rents
and services. Cowell. See Ceorl.
CI. Fr. So; here. Ci Dieiu Vous cycle, so help
you God. Ci devant, heretofore. Ci bien, as well.
CIBARIA. Lat. In the civil law. Food; victuals.
Dig. 34, 1.
CICATRIX. In medical jurisprudence. A scar;
the mark left in the flesh or skin after the healing of a wound, and having the appearance of a
seam or of a ridge of flesh.
CIDER. Formerly, any liquor made of fruit
juices; now, the juice of apples either before or
after fermentation. People v. Tretneck, 22 N.Y.S.
2d 720, 721, 175 Misc. 41; People v. McCoy, 217
Mich. 575, 187 N.W. 338.
Cider vinegar. Vinegar made from apple cider.
People v. Douglas Packing Co., 194 N.Y.S. 633, 635,
118 Misc. 775.
Hard cider. Fermented cider, a strong, spirituous,
and intoxicating drink. Monroe Cider Vinegar &
CIRCADA. A tribute anciently paid to the bishop
or archbishop for visiting churches. Du Fresne.
CIRCA. Lat. About; around; a/so, concerning;
with relation to. Commonly used before a given
date when the exact time is not known; as, circa
1800. Abbreviated circ. or c.
CIRCAR. In Hindu law. Head of affairs; the
state or government; a grand division of a province; a headman. A name used by Europeans in
Bengal to denote the Hindu writer and accountant employed by themselves, or in the public offices. Wharton.
CIRCUIT. A division of the country, appointed
for a particular judge to visit for the trial of causes or for the administration of justice. See 3 Bla.
Comm. 58; State v. Mappus, 107 S.C. 345, 92 S.E.
1053.
Circuits, as the term is used in England, may be otherwise defined to be the periodical progresses of the judges
of the superior courts of common law, through the several
counties of England and Wales, for the purpose of administering civil and criminal justice. 3 Bla.Comm. 57;
3 Steph.Comm. 321.
CIRCUIT COURTS. Courts whose jurisdiction extends over several counties or districts, and of
which terms are held in the various counties or
districts to which their jurisdiction extends.
In several of the states, the name given to a
tribunal, the territorial jurisdiction of which may
comprise several counties or districts, and whose
sessions are held in such counties or districts alternately. These courts usually have general orig-
307
CIRCUIT
inal jurisdiction. Renshaw v. Reynolds, 317 Mo.
484, 297 S.W. 374, 376.
The name of a former .system of courts of the United
States, invested with general original jurisdiction of such
matters and causes as are of Federal cognizance, except
the matters specially delegated to the district courts. 1
Kent, Comm. 301-303.
CIRCUIT COURTS OF APPEALS. See Courts of
Appeals.
CIRCUIT JUDGE. The judge of a circuit court.
Crozier v. Lyons, 72 Iowa 401, 34 N.W. 186.
CIRCUIT JUSTICE. In federal law and practice.
The justice of the supreme court who is allotted
to a given circuit. 28 U.S.C.A. § 42.
CIRCUIT PAPER. In English practice. A paper
containing a statement of the time and place at
which the several assises will be held, and other
statistical information connected with the assises.
Holthouse.
CIRCUITUS EST EVITANDUS; ET BONI JUDICIS EST LITES DIRIMERE, NE LIS EX LITE
ORIATUR. 5 Coke, 31. Circuity is to be avoided;
and it is the duty of a good judge to determine
litigations, lest one lawsuit arise out of another.
Co.Litt. 384 a; Wing.Max. 179; Broom, Max. 343;
15 M. & W. 208; 5 Exch. 829.
CIRCUITY OF ACTION. A complex, indirect, or
roundabout course of legal proceeding, making
two or more actions necessary in order to effect
that adjustment of rights between all the parties
concerned in the transaction which, by a more di,
rect course, might have been accomplished in • a
single suit. Fellows v. Fellows, 4 Cow. (N.Y.) 682,
15 Am.Dec. 412.
CIRCULAR INSANITY. Maniac depressive psychosis. Turley v. Turley, 374 Ill, 571, 30 N.E.2d
64, 65.
CIRCULAR LETTER OF CREDIT. A letter authorizing one person to pay money or extend credit to another on the credit of the writer. Pines v.
United States, C.C.A.Iowa, 123 F.2d 825, 828.
CIRCULAR NOTES. Instruments similar to "letters of credit." They are drawn by resident bankers upon their foreign correspondents, in favor of
persons traveling abroad. Brown.
CIRCULATED. A thing is "circulated" when it
passes, as from one person or place to another, or
spreads, as a report or tale. Willard v. State, 129
Tex.Cr.R. 384, 87 S.W.2d 269, 270.
with defendant's consent in hearing of others.
Myre v. State, 126 Tex.Cr.R. 157, 70 S.W.2d 428.
Circulating medium. This term is more comprehensive than the term "money," as it is the medium of exchanges, or purchases and sales, whether it be gold or silver coin or any other article.
CIRCULATORY HEATING SYSTEM. One in
which the heating box, being outside the room to
be heated, heats a body of air in passing over it,
which body of air is then conducted to the room to
be heated, thus indirectly accomplishing the result;—distinguished from a "radiating" or direct
system, in which the heating body or box is in the
room intended to be heated. Pelton v. Williams,
C.C.A.Ohio, 235 F. 131, 132.
CIRCUMDUCTION. In Scotch law. A closing of
the period for lodging papers, or doing any other
act required in a cause. Paters. Comp,
CIRCUMDUCTION OF THE TERM. In Scotch
practice. The sentence of a judge, declaring the
time elapsed within which a proof ought to have
been led, and precluding the party from bringing
forward any further evidence. Bell.
CIRCUMFERENTIAL. Etymologically inclusive
of spiral. See George W. Todd & Co. v. J. Whitaker Mfg, Co., D.C.Pa., 226 F. 791, 794.
CIRCUMSPECTE AGATIS. The title of a statute
passed 13 Edw. I (1285) and so called from the
Initial words of it, the object of which was to ascertain the boundaries of ecclesiastical jurisdiction
in some particulars, or, in other words, to regulate
the jurisdiction of the ecclesiastical and temporal.
courts. 2 Reeve, Eng.Law, 215, 216. See, however, 2 Holdsw.Hist.E.L. 246. And see Articles of
the clergy.
CIRCUMSTANCES. Attendant facts. Pope v.
Reading Co., 304 Pa. 326, 156 A. 106, 109. The
surroundings at the commission of an act.
The terms "circumstance" and "fact" are, in many applications, synonymous; but the true distinction of a
circumstance is its relative character. "Any fact may be
a circumstance with reference to any other fact." 1 Benth.
Jud.Evid. 42, note; Id. 142. "Circumstances" are minor
facts, Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139, 147;
related or accessory facts, occurrences or things which
stand around, or about, which attend upon, which closely
precede or follow, which surround , and accompany, which
depend upon, or which support or qualify a principal fact
or event, Salter v. State, 163 Ga. 80, 135 S.E. 408, 409.
As used in a statute for an allowance for the wife in
a divorce action, having regard to the "circumstances" of
the parties, it includes practically everything which has a
legitimate bearing on present and prospective matters relating to the lives of both parties. Lamborn v. Lamborn,
80 Cal. App. 494, 251 P. 943, 945.
The "circumstances of the transaction itself," as used in
the doctrine of dying declarations, are the circumstances
or facts leading up to, causing, or attending the homicide,
and are not confined to occurrences at the very time thereof. Pendleton v. Commonwealth, 131 Va. 676, 109 S.E. 201,
209.
Thrift, integrity, good repute, business capacity, and
stability of character, for example, are "circumstances"
which may be very properly considered in determining the
question of "adequate security." Martin v. Duke, 5 Rea.
Sur. (N.Y.) 600.
CIRCULATION. As used in statutes providing
for taxes on the circulation of banks, this term
includes all currency or circulating notes or bills,
or certificates or bills intended to circulate as money. U. S. v. Wilson, 106 U.S. 620, 2 S.Ct. 85, 27 L.
Ed. 310. As used in newspaper and magazine
publishing businesses, a body of subscribers and
an established advertising clientele. Meredith Pub.
Co. v. Commissioner of Internal Revenue, C.C.A.,
64 F.2d 890, 893. Reading of libelous document
308
CITE
CIRCUMSTANTIAL EVIDENCE. The term includes all evidence of indirect nature. Milligan v.
State, 109 Fla. 219, 147 So. 260, 263.
It is direct evidence as to facts deposed to but indirect as
to the factum probandum, Brown v. State, 126 Tex.Cr.R.
449, 72 S.W.2d 269, 270; evidence of facts or circumstances
from which the existence or nonexistence of fact in issue
may be inferred. People v. Steele, 37 N.Y.S.2d 199, 200,
179 Misc. 587; Wolff v. Employers Fire Ins. Co., 282 Ky.
824, 140 S.W.2d 640, 645, 130 A.L.R. 682; Scott v. State,
57 Ga.App. 489, 195 S.E. 923, 924; inferences drawn from
facts proved, Hatfield v. Levy Bros., 18 Ca1.2d 798, 117 P.
2d 841, 845; preponderance of probabilities, Hercules Powder Co., v. Nieratko, 113 N.J.L. 188, 173 A. 606, 610; process of decision by which court or jury may reason from
circumstances known or proved, to establish by inference
the principal fact, People v. Taddio, 292 N.Y. 488, 55 N.E.
2d 749, 750.
It means that existence of principal facts is only inferred
from circumstances. Twin City Fire Ins. Co. v. Lonas, 255
Ky. 717, 75 S.W.2d 348, 350.
When the existence of the principal fact is deduced from
evidentiary by a process of probable reasoning, the evidence and proof are said to be presumptive. Best, Pres.
246; Id. 12. All presumptive evidence is circumstantial because necessarily derived from or made up of circumstances, but all circumstantial evidence is not presumptive.
Burrill.
The proof of various facts or circumstances which usually attend the main fact in dispute, and therefore tend to
prove its existence, or to sustain, by their consistency, the
hypothesis claimed. Or as otherwise defined, it consists in
reasoning from facts which are known or proved to establish such as are conjectured to exist.
CIRCUMSTANTIBUS, TALES DE. See Tales.
CIRCUMVENTION. In Scotch law. Any act of
fraud whereby a person is reduced to a deed by
decreet. It has the same sense in the civil law.
Dig. 50, 17, 49, 155. And see Oregon v. Jennings,
7 S.Ct. 124, 119 U.S. 74, 30 L.Ed. 323.
CIRCUS. A large inclosure with one end rounded
for races, a show in which feats of horsemanship,
tumbling, strength, etc., are exhibited. Zucarro
v. State, 82 Tex.Cr.R. 1, 197 S.W. 982, 985, L.R.A.
1918B, 354.
CIRIC. In Anglo-Saxon and old English law, a
church.
CIRIC-BRYCE. Any violation of the privileges of
a church.
CIRIC SCEAT. Church-scot, or shot; an ecclesiastical due, payable on the day of St. Martin, consisting chiefly of corn.
CIRLISCUS. A ceorl (q. v.).
CISTA. A box or chest for the deposit of charters, deeds, and things of value.
CITACION. In Spanish law. Citation; summons; an order of a court requiring a person
against whom a suit has been brought to appear
and defend within a given time.
It is synonymous with the term emplazamiento in the old
Spanish law, and the in jus vocatio of the Roman law.
CITATIO. Lat. A citation or summons to court.
CITATIO AD REASSUMENDAM CAUSAM. A
summons to take up the cause. A process, in the
civil law, which issued when one of the parties to
a suit died before its determination, for the plaintiff against the defendant's heir, or for the plaintiff's heir against the defendant, as the case might
be; analogous to a modern bill of revivor, which
is probably borrowed from this proceeding.
CITATIO EST DE JURI NATURAL!. A summons is by natural right. Cases in Banco Regis
Wm. III. 453.
CITATION. A writ issued out of a court of competent jurisdiction, commanding a person therein
named to appear on a day named and do something therein mentioned, or show cause why he
should not. Proctor, Prac. Sheldon v. Sheldon,
100 N.J.Eq. 24, 134 A. 904, 907. An order or summons by which a defendant is directed or notified
to appear. Adams v. Citizens Bank, 136 So. 107,
109, 17 La.App. 422; Burrage v. Hunt Production
Co., Tex.Civ.App., 114 S.W.2d 1228, 1239. The act
by which a person is so summoned or cited.
It is usually original process in any proceeding where
used, and in such respect is analogous to a writ of capias
or summons at law and subpcena in chancery. Gondas v.
Gondas, 99 N.J.Eq. 473, 134 A. 615, 618.
As the act of the court through its proper officer commanding the appearance of defendant at the time and place
named to answer to plaintiff's petition, it has the dignity of
official character and weight of superior authority. Moran Oil & Gas Co. v. Anderson, Tex.Civ.App., 223 S.W. 1031,
1032. It is used in this sense, in American law, in the
practice upon writs of error from the United States supreme court, and in the proceedings of courts of probate
in many of • the states. Durfee v. Durfee, 293 Mass. 472,
200 N.E. 395, 397; Schwartz v. Lake, 109 La. 1081, 34 So.
96.
It is also the name of the process used in the English ecclesiastical, probate, and divorce courts to call the defendant or respondent before them. 3 B1.Comm. 100; 3 Steph.
Comm. 720. And in Scotch practice it is the calling of a
party to an action done by an officer of the court under
a proper warrant; the service of a writ or bill of summons. Paters. Comp.
CITATION OF AUTHORITIES. The reading, or
production of, or reference to, legal authorities
and precedents, (such as constitutions, statutes,
reported cases, and elementary treatises,) in arguments to courts, or in legal text-books, to establish
or fortify the propositions advanced.
CITATIONS, LAW OF. In Roman law. An act of
Valentinian, passed A. D. 426, providing that the
writings of only five jurists, viz., Papinian, Paul,
Gaius, Ulpian, and Modestinus, should be quoted
as authorities. The majority was binding on the
judge. If they were equally divided the opinion
of Papinian was to prevail; and in such a case, if
Papinian was silent upon the matter, then the
judge was free to follow his own view of the matter. Brown.
CITATIONES NON CONCEDANTUR PRIUSQUAM EXPRIMATUR SUPER QUA RE FIERI
DEBET CITATIO. Citations should not be granted before it is stated about what matter the citation is to be made. (A maxim of ecclesiastical
law.) 12 Coke, 44.
CITE. L. Fr. City; a city. Cite de Loundr', city
of London.
309
CITE
CITE. To summon; to command the presence
of a person; to notify a person of legal proceedings against him and require his appearance
thereto. See In re Eno's Estate, 180 N.Y.S. 889,
890, 111 Misc. 69. To read or refer to legal authorities, in an argument to a court or elsewhere,
in support of propositions of law sought to be established.
CITIZEN. A member of a free city or jural society, (civitas,) possessing all the rights and privileges which can be enjoyed by any person under
its constitution and government, and subject to
the corresponding duties. "Citizens" are members of community inspired to common goal, who,
in associated relations, submit themselves to rules
of conduct for the promotion of general welfare
and conservation of individual as well as collective rights. In re McIntosh, D.C.Wash., 12 F.
Supp. 177.
The term appears to have been used in the Roman government to designate a person who had the freedom of the
city, and the right to exercise all political and civil privileges of the government. There was also, at Rome, a
partial citizenship, including civil, but not political rights.
Complete citizenshi p embraced both. Thomasson v. State,
15 Ind. 451; 17 L.Q.Rev. 270; 1 Sel.Essays in Anglo-Amer.
L.H. 578.
A member of a nation or body politic of the sovereign
state or political society who owes allegiance, Luria v. U.
S., 34 S.Ct. 10, 19, 231 U.S. 9, 58 L.Ed. 101; U. S. v. Polzin,
D.C.Md., 48 F.Supp. 476, 479.
A member of the civil state entitled to all its privileges.
Cooley, Const.Lim. 77. One of the sovereign people. A
constituent member of the sovereignty synonymous with
the people. Scott v. Sandford, 19 How. 404, 15 L.Ed. 691.
In American Law
One who, under the constitution and laws of the
United States, or of a particular state, is a member of the political community, owing allegiance
and being entitled to the enjoyment of full civil
rights. Amy v. Smith, 1 Litt. (Ky.) 331; Minor v.
Happersett, 21 Wall. 162, 22 L.Ed. 627.
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. Amend.
XIV, Const.U.S.; Nyman v. Erickson, 100 Wash. 149, 170
P. 546, 547.
The term may include or apply to an elector qualified to
vote in an election, Belmont v. Town of Gulfport, 97 Fla.
688, 122 So. 10; children of alien parents born in United
States, Von Schwerdtner v. Piper, D.C.Md., 23 F.2d 862,
863; U. S. v. Minoru Yasui, D.C.Or., 48 F.Supp. 40, 54;
children of American citizens born outside United States,
Hoaland v. Attorney General of United States, D.C.Md.,
42 F.Supp. 13, 22; Indians, United States v. Hester, C.C.A.
Okl., 137 F.2d 145, 147; State v. McAlhaney, 220 N.C. 387,
17 S.E.2d 352, 354; national banks, American Surety Co. v.
Bank of California, C.C.A.Or., 133 F.2d 160, 162; Ezzell v.
First Nat. Banks, 218 Ala. 462, 119 So. 2, 3; negroes and
whites, United States v. Ellis, D.C.S.C., 43 F.Supp. 321,
324; nonresident who has qualified as administratrix of
estate of deceased resident, Williams' Code Tenn. § 8236.
Hunt v. Noll, C.C.A.Tenn., 112 F.2d 288, 289; persons entitled to privileges and immunities conferred upon same
terms upon which they are conferred upon other citizens,
Austin v. United States, D.C.I11., 40 F.Supp. 777, 778.
The terms "citizen" and "citizenship" are distinguishable from "resident" or "inhabitant." Jeffcott v. Donovan,
C.C.A.Ariz., 135 F.2d 213, 214; and from "domicile,"
Wheeler v. Burgess, 263 Ky. 693, 93 S.W.2d 351, 354; First
Carolinas Joint Stock Land Bank . of Columbia v. New
York Title & Mortgage Co., D.C.S.C., 59 F.2d 350, 351.
The words "citizen" and "citizenship," however, usually
• include the idea of domicile, Delaware, L. & W. R. Co. v.
Petrowsky, C.C.A.N.Y., 250 F. 554, 557; citizen inhabitant
and resident often synonymous, Jonesboro Trust Co. v.
Nutt, 118 Ark. 368, 176 S.W. 322, 324; Edgewater Realty
Co. v, Tennessee Coal, Iron & Railroad Co., D.C.Md., 49 F.
Supp. 807, 809; and citizenship and domicile are often
synonymous. Messick v. Southern Pa. Bus Co., D.C.Pa.,
59 F. Supp. 799, 800.
A corporation is a citizen of state under whose laws it
Is created and a nonresident of every other state. Jackson Securities & Investment Co. v. State, 241 Ala. 288, 2
So.2d 760, 764. It is not a citizen within meaning of federal constitution declaring citizens of each state entitled
to privileges and immunities of citizens in the several
states or within Fourteenth Amendment prohibiting states
from abridging privileges and immunities ot citizens of
United States, J. D. L. Corporation v. Bruckman, 11 N.Y.
S.2d 741, 746, 171 Misc. 3; but see In re Thermiodyne Radio
Corporation, D.C.Del., 26 F.2d 713, 714; nor within statute
authorizing citizens of United States to prosecute appeal to
Circuit Court of Appeals without prepaying costs or giving
security, Atlantic S. S. Corporation v. Kelley, C.C.A.Fla., 79
F.2d 339, 340; nor within statute authorizing permission
to citizens to sue in forma pauperis, Quittner v. Motion
Picture Producers & Distributors of America, C.C.A.2, 70
F.2d 331, 332; nor within statute requiring suit in district
wherein either plaintiff or defendant resides. Standard
Stoker Co. v. Lower, D.C.Md., 46 F.2d 678. 684; Sutherland v. U. S., C.C.A.Neb., 74 F.2d 89, 92. Insurance companies, incorporated under state law. are "citizens of this
state" within statute requiring foreign insurance companies to file bonds for payment of their obligations to such
citizens. Republic Ins. Co. v. Cunningham, Tex.Civ.App.,
62 S.W.2d 339, 343. The term "citizen" will not be construed to include a corporation, unless the general purpose
and import of the statutory or constitutional provision
seems to require it. St. Louis & S. F. R. Co. v. State, 120
Ark. 182, 179 S. W. 342, 343, Ann.Cas.1917C, 873; Jennings
v. Idaho Ry., Light & Power Co., 26 Idaho, 703, 146 P. 101,
102, L.R.A.1915D, 115, Ann.Cas.1916E, 359.
Neither a corporation nor a partnership is a citizen of
the United States entitled to immunity from service of
summons by substituted service, Western Mut. Fire Ins. Co.
v. Lamson Bros. & Co., D.C.Iowa, 42 F.Supp. 1007, 1012.
Filipinos are not citizens of United States, De Cano v.
State, 7 Wash.2d 613, 110 P.2d 627, 631; People v, Cordero,
50 Cal.App.2d 146, 122 P.2d 648, 649; but see holding that
Filipinos are within provision of Neutrality Act defining
"citizen" as including any individual owing allegiance to
the United States. Suspine v. Compania Transatlantica
Centroamericana, S. A., D.C.N.Y., 37 F.Supp. 268, 271.
A state cannot be a citizen. Query v. 206 Cases of Assorted Liquor, D.C.S.C., 49 F.Supp. 693, 695.
But a state and the federal government each has citizens
of its own, and the same person may be at the same time
a citizen of the United States and a citizen of a state.
The government of the United States can neither grant nor
secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction.
All that cannot be so granted or secured are left to the
exclusive protection of the states. U. S. v. Cruikshank, 92
U.S. 542, 23 L.Ed. 588.
With reference to the jurisdiction and power of federal
courts and removal of actions a citizen of the District of
Columbia is not a "citizen of a state", Neild v. District
of Columbia, 110 F.2d 246, 249, 71 App.D.C. 306; Glaeser
v. Acacia Mut. Life Ass'n, D.C.Cal., 55 F.Supp. 925, 926;
a corporation is a citizen of the state where it is organized,
and a foreign corporation does not become a citizen of another state where it is authorized to carry on business,
Van Buren v. Connecticut Gen. Life Ins. Co., D.C.Mass.,
42 F.Supp. 279, 280; a municipal subdivision, such as
county, city, town, or school district, is a citizen, Siegel v.
City of Detroit, Department of Street Railways, D.C.Mich.,
52 F.Supp. 669; Pettibone v. Cook County, Minn., C.C.A.
Minn., 120 F.2d 850, 852; a national bank is a citizen of
state where it has its principal place of business, American
Surety Co. of New York v. Bank of California, D.C.Or., 44
F.Supp. 81, 83; Atwood v. National Bank of Lima, C.C.A.
Ohio, 115 F.2d 861, 862; a state is not a citizen, Board of
Health of Township of Hillside v. Mundet Cork Corporation, 126 N.J.Eq. 100, 8 A.2d 105, 106, 107; State of North
Dakota v. National Milling & Cereal Co., C.C.A.N.D., 114
310
CIVIL ACTION
The German as well as the French cities are a creation
of the Middle Ages; there was an organic connection with
the Roman town-system. Schroder, Lehrbuch des Deutchen
Rechtsgeschichte 588.
F.2d 777, 779; State Highway Commission of Wyoming v.
Utah Const. Co., (Wyo.) 49 S.Ct. 104, 106, 278 U.S. 194, 73
L.Ed. 262; a turnpike commission is a citizen, HunkiriConkey Const. Co. v. Pennsylvania Turnpike Commission,
D.C.Pa., 34 F.Supp. 26, 28; an association is not a citizen,
Rife v. Lumber Underwriters, C.C.A.Tenn., 204 F. 32, 35;
Village Mills Co. v. Houston Oil Co. of Texas, Tex.Civ.
App., 186 S.W. 785, 788; domicile and citizen are synonmous in federal courts, Earley v. Hershey Transit Co., D.C.
Pa., 55 F.Supp. 981, 982; inhabitant, resident and citizen
are synonymous, Standard Stoker Co. v. Lower, D.C.Md.,
46 F.2d 678, 683.
CITY COUNCIL. The name of a group of municipal officers constituting primarily a legislative and
administrative body, but which is often charged
with judicial or quasi judicial functions, as when
sitting on charges involving the removal of an officer for cause. Rutter v. Burke, 89 Vt. 14, 93 A.
842, 849.
In English Law
An inhabitant of a city. 1 Rolle, 138. The representative of a city, in parliament. 1 Bl.Comm.
174.
CITY ELECTION. Any election in a city at which
people of the city may vote, Wing v. Ryan, 6 N.
Y.S.2d 825, 829, 255 App.Div. 163.
The word "subject" is used to designate an inhabitant
of the country, or one amenable to the laws of the nation.
CITY OF LONDON COURT. A court having a
local jurisdiction within the city of London. It
is to all intents and purposes a county court, having the same jurisdiction and procedure.
CITIZENSHIP. The status of being a citizen
(q. v.).
CITY.
CITY REAL ESTATE. Property owned and used
for municipal purposes. McSweeney v. Bazinet,
55 N.Y.S.2d 558, 561, 269 App.Div. 213.
In England
An incorporated town or borough which is or
has been the see of a bishop. Co.Litt. 108; 1 Bl.
Comm. 114; Cowell; 1 Steph.Comm. 115. State
v. Green, 126 N.C. 1032, 35 S.E. 462.
There is said, however, to be no necessary connection between a city and a see. Oxford Diet., citing Freeman.
A large town incorporated with certain privileges. The inhabitants of a city. The citizens.
Worcester.
In America
A municipal corporation; Streat v. Vermilya,
268 Mich. 1, 255 N.W. 604, 606; also the territory
within the corporate limits. Municipal Power
Transmission Co. v. City of Lyndon, 127 Kan. 59,
272 P. 158, 160.
A large town or municipal corporation, State v. Haynes,
175 Ark. 645, 300 S.W. 380, 382; a political entity or subdivision for governmental purposes, Nolan v. Jones, 215 Ky.
238, 284 S.W. 1054, 1056; a public institution for self-government, Loeb v. City of Jacksonville, 101 Fla. 429, 134 So.
205, 207; a public corporation for public purposes, Chase
v. Inhabitants of Town of Litchfield, 134 Me. 122, 182 A.
921, 924.
A state agency for carrying on local government. Hudson Motor Car Co. v. City of Detroit, 282 Mich. 69, 275 N.
W. 770, 773, 113 A.L.R. 1472; a voluntary association or
corporation. State ex rel. McQueen v. Brandon, 244 Ala.
62, 12 So.2d 319, 322; Leviton v. Board of Education of
City of Chicago, 374 Ill. 594, 30 N.E.2d 497, 500.
The fundamental distinction between town and city organization is that in the former all the qualified inhabitants meet together to deliberate and vote as individuals,
each in his own right, while in the latter all municipal
functions are performed by deputies; the one being direct,
the other representative. In re Opinion of the Justices,
229 Mass. 601, 119 N.E. 778, 781.
The word "city," however, is often used to include an incorporated town. Noble v. State, 112 Tex.Cr.R. 676, 18 S.
W.2d 619, 620; and to include villages, People v. City of
Chicago, 349 Ill. 304, 182 N.E. 419, 431. It has also been
held that, under statutes, the term includes all municipal
corporations and corporate authorities, such as a board of
park commissioners; People v. Kesner, 321 Ill. 230, 151 N.
E. 481, 483; but that it does not include a village; Village
of Depue v. Banschbach, 273 Ill. 574, 113 N.E. 156, 159.
In Medieval History
In the Middle Ages in Germany, fortified places
in the enjoyment of market-jurisdiction.
CITY WARRANT. A command of council to
treasurer to pay amount. State v. McCarthy, 282
P. 1045, 1048, 86 Mont. 100.
CIUDADES. Sp. In Spanish law, cities; distinguished from towns (pueblos) and villages
(villas.) Hart v. Burnett, 15 Cal. 537.
CIVIC. Pertaining to a city or citizen, or to citizenship. Cleveland Opera Co. v. Cleveland Civic
Opera Ass'n, 22 Ohio App. 400, 154 N.E. 352, 353.
CIVIC ENTERPRISE. A project or undertaking
in which citizens of a city co-operate to promote
the common good and general welfare of the people of the city. James McCord Co. v. Citizens'
Hotel Co., Tex.Civ.App., 287 S.W. 906, 908.
CIVIL. Originally, pertaining or appropriate to
a member of a civitas or free political community;
natural or proper to a citizen. Also, relating to
the community, or to the policy and government
of the citizens and subjects of a state.
The word is derived from the Latin civilis, a citizen.
Byers v. Sun Savings Bank, 41 Okl. 728, 139 P. 948, 949,
52 L.R.A.,N.S., 320, Ann.Cas.1916D, 222. In law, it has various significations. In contradistinction to barbarous or
savage, it indicates a state of society reduced to order and
regular government. In contradistinction to criminal, it indicates the private rights and remedies of men. It is also
used in contradistinction to military, ecclesiastical, natural,
or foreign. Story, Const. § 791; 1 Bla.Comm. 6, 125, 251;
Montesquieu, Sp. of Laws, b. 1, c. 3; Rutherforth, Inst.
b. 2, c. 2; id. c. 3; id. c. 8, p. 359; Heineccius, Elem.
Jurisp.Nat. b. 2, ch. 6.
A prisoner's statutory obligation to pay for his keep and
maintenance is civil. Auditor General v. Hall, 300 Mich.
215, 1 N.W.2d 516, 518, 139 A.L.R. 1022.
As to civil "Commotion," "Conspiracy," "Contempt," "Corporations," "Death," "Injury," "Liberty," "Obligation," "Officer," "Possession," "Remedy," "Rights," and "War," see those titles. See,
also, the following titles beginning with "Civil."
CIVIL ACTION.
In general
An action wherein an issue is presented for
trial formed by averments of complaint and de311
CIVIL ACTION
nials of answer or replication to new matter,
White v. White, 98 Ind.App. 587, 186 N.E. 349, 351.,
an adversary proceeding for declaration, enforcement, or protection of a right, or redress, or prevention of a wrong, People v. Barker, 29 Cal.App.
2d Supp. 766, 77 P.2d 321, 323; Lee v. Lang, 140
Fla. 782, 192 So. 490, 491; Johnston v. State,
212 Ind. 375, 8 N.E. 590, 592. Every action other
than a criminal action, City of Neenah v. Krueger,
206 Wis. 473, 240 N.W. 402, 404; Gillson v. Vendome Petroleum Corporation, D.C.La., 35 F.Supp.
815, 819.
Both actions at law and actions in equity. Kiepinger v.
Rhodes, 140 F.2d 697, 698, 78 U.S.App.D.C. 340.
In the Civil Law
A personal action which is instituted to compel
payment, or the doing of some other thing which
is purely civil. Pothier, Introd. Gen. aux Cont.
110.
At Common Law
One which seeks the establishment, recovery,
or redress of private and civil rights. One
brought to recover some civil right, or to obtain
redress for some wrong not being a crime or misdemeanor. Wheeling Traction Co. v. Pennsylvania Co., D.C.Ohio, 1 F.2d 478, 479.
Civil suits relate to and affect only individual rights
whereas criminal prosecutions involve public wrongs. Cancemi v. People, 18 N.Y. 128. They include all cases, both
at law and in equity, which cannot legally be denominated
"criminal cases." Fenstermacher v. State, 19 Or. 504, 25
P. 142; Welford v. Havard, 127 Miss. 83, 89 So. 812, 813.
In Code Practice
The one form of action for enforcement or protection of
private rights and prevention or redress of private wrongs.
Code N.Y. § 69. It may also be brought for the recovery
of a penalty or forfeiture.
"Civil action" implies adversary parties and an issue, and
is designed for the recovery or vindication of a civil right
or the redress of some civil wrong. Bopst v. Williams, 287
Mo. 317, 229 S.W. 796, 798. It is a generic term, and does
not necessarily imply jury trial. State Board of Medical
Examiners v. Macy, 92 Wash. 614, 159 P. 801, 804.
CIVIL BILL COURT. A tribunal in Ireland with
a jurisdiction analogous to that of the county
courts in England. The judge of it is also chairman of quarter sessions (where the jurisdiction
is more extensive than in England), and performs the duty of revising barrister. Wharton.
CIVIL DAMAGE ACTS. Acts which provide in
certain cases an action for damages to one injured
because of the furnishing of liquor. Tarwater v.
Atlantic Co., 176 Tenn. 510, 144 S.W.2d 746, 747.
CIVIL DAY. See the title Day.
CIVIL ENFORCEMENT PROCEEDING. The
penalty actions under Emergency Price Control
Act. Bowles v. Barde Steel Co., 177 Or. 421, 164
P.2d 692, 715, 162 A.L.R. 328.
CIVIL INFORMATION. A legal proceeding in
chancery, older than the court of equity. Wilson
v. State Water Supply Commission, 84 N.J.Eq. 150,
93 A. 732, 733.
CIVIL INQUEST. A proceeding to determine
whether an individual is a criminal sexual psychopathic person within statute providing for confinement and treatment of such persons. People v.
Chapman, 301 Mich. 584, 4 N.W.2d 18, 26.
CIVIL LAW. "Civil Law," "Roman Law" and
"Roman Civil Law" are convertible phrases, meaning the same system of jurisprudence.
That rule of action which every particular nation, commonwealth, or city has established peculiarly for itself; more properly called "municipal"
law, to distinguish it from the "law of nature,"
and from international law. See Bowyer, Mod.
Civil Law, 19; Sevier v. Riley, 189. Cal. 170, 244 P.
323, 325.
That division of municipal law which is occupied with the exposition and enforcement of civil
rights as distinguished from criminal law.
The system of jurisprudence held and administered in
the Roman empire, particularly as set forth in the compilation of Justinian and his successors,—comprising the Institutes, Code, Digest, and Novels, and collectively denominated the "Corpus Juris Civi/is,"—as distinguished from
the common law of England and the canon law.
The word "civil," as applied to the laws in force in
Louisiana, before the adoption of the Civil Code, is not
used in contradistinction to the word "criminal," but must
be restricted to the Roman law. It is used in contradistinction to the laws of England and those of the respective
states. Jennison v. Warmack, 5 La. 493.
CIVIL LIABILITY. The amenability to civil action as distinguished from amenability to criminal
prosecution. Corn. v. Shimpeno, 160 Pa.Super. 104,
50 A.2d 39, 43. A sum of money assessed either
as general, special or liquidated damages, eithersingle, double or treble for violation such as overcharges. Lewis v. Anderson, D.C.Cal., 72 F.Supp,
119, 123.
CIVIL LIST. In English public law. An annual
sum granted by parliament, at the commencement
of each reign, for the expense of the royal household and establishment, being a provision made
for the crown out of the taxes in lieu of its proper
patrimony. 2 Steph.Comm. 591; 1 Bl.Comm. 332.
CIVIL NUISANCE. At common law, anything
done to hurt or annoyance of lands, tenements,
or hereditaments of another. Brownsey v. General Printing Ink Corporation, 118 N.J.L. 505, 193
A. 824, 826.
CIVIL OBLIGATION. One which binds in law,
and may be enforced in a court of justice. Pothier, Obl. 173, 191.
CIVIL OFFICE. An office, not merely military in
its nature, that pertains to the exercise of the powers or authority of civil government. State ex
rel. Landis v. Futch, 122 Fla. 837, 165 So. 907, 909.
Requisites are continuity, creation and definition
of powers and duties by Constitution or Legislature, or their authority, possession of governmental power, and independence unless controlled
by superior officers. State ex rel. McIntosh v.
Hutchinson, 187 Wash. 61, 59 P.2d 1117, 1118, 105
A.L.R. 1234.
CIVIL OFFICER. See Officer.
312
CLAIM
CIVIL POSSESSION. See Possession.
CIVIL RESPONSIBILITY. The liability to be
called upon to respond to an action at law for an
injury caused by a delict or crime, as opposed to
criminal responsibility, or liability to be proceeded
against in a criminal tribunal.
CIVIL RIGHTS. See Right.
CIVIL SERVICE. This term properly includes all
functions under the government, except military
functions. In general it is confined to functions
in the great administrative departments of state.
People v. Cram, 61 N.Y.S. 858, 29 Misc. 359. But
in enlarged sense means all service rendered to
and paid for by state, nation, or political subdivisions thereof, except that pertaining to naval or
military affairs. Long v. Wells, 186 Ga. 602,
198 S.E. 763, 768.
CIVIL SERVICE REFORM. Substitution of business principles and methods for spoils system in
conduct of civil service, especially in matter of
appointments. Ward v. Leche, 189 La, 113, 179
So. 52, 55.
CIVIL SIDE. When the same court has jurisdiction of both civil and criminal matters, proceedings of the first class are often said to be on
the civil side; those of the second, on the criminal
side.
CIVIL TOWNSHIP. A legal subdivision of the
county for governmental purposes. Appeal of
Trustees of Iowa College, 185 Iowa 434, 170 N.W.
813, 814.
CIVIL YEAR. See Year.
CIVILIAN. One who is skilled or versed in the
civil law. A doctor, professor, or student of the
civil law. Also a private citizen, as distinguished
from such as belong to the army and navy or (in
England) the church.
CIVILIS. Lat. Civil, as distinguished from criminal. Civilis actio, a civil action. Bract. fol. 101b.
CIVILISTA. In old English law. A civil lawyer,
or civilian. Dyer, 267.
CIVILITER. Civilly. In a person's civil character
or position, or by civil (not criminal) process or
procedure. This term is used in distinction or opposition to the word "crimincaiter,"-criminally,to distinguish civil actions from criminal prosecutions. 2 East, 104.
CIVILITER MORTUUS. Civilly dead; dead in the
view of the law. The condition of one who has
lost his civil rights and capacities, and is accounted dead in law. Rasor v. Rasor, 173 S.C. 365, 175
S.E. 545.
CIVILIZATION.
In Public Law
A term which covers several states of society;
it is relative, and has no fixed sense, but implies
an improved and progressive condition of the people, living under an organized government.
Roche v. Washington, 19 Ind. 56, 81 Am.Dec. 376.
It consists not merely in material achievements, in
accomplishment and accumulation of wealth, or in
advancement in culture, science, and knowledge,
but also in doing of equal and exact justice. Stiglitz v. Schardien, 239 Ky. 799, 40 S.W.2d 315, 321.
CIVIS. Lat. In the Roman law. A citizen; as
distinguished from incola, (an inhabitant;) origin
or birth constituting the former, domicile the
latter. Code, 10, 40, 7. And see U. S. v. Rhodes,
27 Fed.Cas. 788.
CIVITAS, Lat. In the Roman law. Any body
of people living under the same laws; a state.
Jus civitatis, the law of a state; civil law. Inst. 1,
2, 1, 2. Civitates fcederatce, towns in alliance with
Rome, and considered to be free. Butl.Hor.Jur.
29.
Citizenship; one of the three status, conditions,
or qualifications of persons. Mackeld.Rom.Law, §
131.
A term in the Anglo-Saxon land books, commonly applied to Worcester, Canterbury and other
such places, which are both bishop's sees and the
head places of large districts. Maitland, Domesday and Beyond 183. See 17 L.Q.R. 274. Oxford
Dict. s. v. City.
See City.
CLAIM, n. A broad, comprehensive word, Wheeler v. Equitable Life Assur. Soc. of United States,
211 Minn. 474, 1 N.W.2d 593, 596.
CLAIM, v. To demand as one's own; to assert,
Hill v. Henry, 66 N.J.Eq. 150, 57 Atl. 555. To
state; to urge; to insist.
It may embrace or apply to a call, In re Heim's Estate, 3
N.Y.S.2d 134, 138, 166 Misc. 931; a demand, MouldingBrownell Corporation v. E. C. Delfosse Const. Co., 291 Ill.
App. 343, 9 N.E.2d 459, 461, a pretense; a right or title,
Orenberg v. Thecker, 143 F.2d 375, 377, 79 U.S.App.D.C.
149; Lawrence v. Miller, 2 N.Y. 245, 254; an account, In
re Stratman's Estate, 231 Iowa 480, 1 N.W.2d 6:36, 642; an
action on account, Coleman v. Kansas City, 351 Mo. 254,
173 S.W.2d 572, 576; an assertion, Ritter v. Albuquerque
Gas & Electric Co., 47 N.M. 329, 142 P.2d 919, 922; both
the principal amount of judgment and interest thereon,
Powell v. Link, C.C.A.Va., 114 F.2d 550, 554; cause of suit
or cause of action, Jacobson v. Mutual Ben. Health & Accident Ass'n, 73 N.D. 108, 11 N.W.2d 442, 446; challenge of
property or ownership of a thing which is wrongfully withheld, Douglas v. Beasley, 40 Ala. 147; Prigg v. Pennsylvania, 16 Pet. 615, 10 L.Ed. 1060; challenge of something
as right, Uintah State Bank v. Ajax, 77 Utah, 455, 297 P.
434, 438. Claims ex delicto as well as ex contractu, Williams v. Williams, 217 Ind. 581, 29 N.E.2d 557, 558. Debt,
Tanner v. Best's Estate, 40 Cal.App.2d 442, 104 P.2d 1084,
1087. But not all valid "claims" are "debts," State Banking Co. v. Hinton, 178 Ga. 68, 172 S.E. 42, 47, 91 A.L.R. 596;
existing right, Mellus v. Potter, 91 Cal.App. 700, 267 P.
563, 564; judgment, Jennings v. Loucks, 297 N.Y.S. 893,
896, 163 Misc. 791; legal capability to require a positive or
negative act of another person, Kocourek, Jural Relations,
2d Ed., 7; legal claim, right. In re Heinemann's Will, 201
Wis. 484, 230 N.W. 698, 700; means by or through which
claimant obtains possession or enjoyment of privilege or
thing, Lawrence v. Miller, 2 N.Y. 245, 254; valid claim,
In Practice
A law; an act of justice, or judgment which
renders a criminal process civil; performed by
turning an information into an inquest, or the
contrary. Wharton.
313
CLAIM
Tennessee Consol. Coal Co. v. Commissioner of Internal
Revenue, C.C.A.6, 117 F.2d 452, 454.
In patent law, specification by applicant for patent of
particular things in which he insists his invention is novel
and patentable ; the clause in application in which applicant defines precisely what his invention is. Westinghouse Electric & Mfg. Co. v. Metropolitan Electric Mfg.
Co., C.C.A.N.Y., 290 F. 661, 664.
Under Compensation Acts, a claim for which an amount
of compensation may be deducible. Texas Employers Ins.
Ass'n v. Booth, Tex.Civ.App., 113 S.W.2d 231, 241.
A demand for compensation, Georgia Casualty Co. v.
Ward, Tex.Civ.App., 220 S.W. 380, 381; or for payment of
medical expenses, Schmidt v. City of Lincoln, 137 Neb.
546, 290 N.W. 250, 253; A notice that claimant is claiming compensation and benefits, Kaplan v. Kaplan Knitting
Mills, 248 N.Y. 10, 161 N.E. 204, 206; A provision that no
claim for compensation shall be assignable before payment,
covers both claims and awards. Pacific Electric R. Co. v.
Commonwealth Bonding & Casualty Ins. Co., 55 Cal.App.
704, 204 P. 262, 263.
Under land laws, tract of land taken up by a preemptioner or other settler (and also his possession of it).
Railroad Co. v. Abink, 14 Neb. 95, 15 N.W. 317.
Under mechanic's lien law of some states, a demand put
on record by a mechanic or material-man against a building for work or material contributed to its erection.
Under statute authorizing the courts to order a bill of
particulars of the "claim" of either party, "claim" is coextensive with "case," and embraces all causes of action
and all grounds of defense, the pleas of both parties, and
pleas in confession and avoidance, no less than complaints
and counter-claims. Orvis v. Jennings, 6 Daly (N.Y.) 446.
When applied to estate of decedent, asserted but unadjudicated obligation, In re Franks' Estate, 277 N.Y.S. 573,
154 Misc. 472; debt or demand of a pecuniary nature,
Tinkham v. Tinkham, 112 Ind.App. 532, 45 N.E.2d 357, 360;
debts already due and unmatured debts, Roth v. Ravich,
111 Conn. 649, 151 A. 179, 180, 74 A.L.R. 364.
Within statute concerning presentation of false claim to
political unit or officer, one which upon its face purports to
be charge for which county would be liable. State ex rel.
Welling v. Third Judicial District Court in and for Salt
Lake County, 87 Utah 416, 49 P.2d 950, 952.
Within World War Veterans' Act any physical writing
which furnishes the desired information, Cable v. United
States, C.C.A.I1l., 104 F.2d 541, 545; assertion of a present
claim demand, Werner v. United States, C.C.A.N.Y., 86 F.
2d 113; Cannon v. United States, D.C.Pa., 45 F.Supp. 106,
108.
An adverse claim is one set up by a stranger to
goods upon which the sheriff has levied an execution or attachment. It is also applied to claims to
real property.
For "Counter-claim" and "False Claim," and
"False or Fraudulent Claim," see those titles.
CLAIM ACCRUED. Damage accrued. Megerell
v. State, Ct.C1., 46 N.Y.S.2d 685, 688; Edlux Const.
Corporation v. State, 300 N.Y.S. 509, 511, 252 App.
Div. 373.
CLAIM BOND. A bond primarily in the nature
of a forthcoming bond. Liability can be based
thereon when the court adjudges the failure of
the claimant in trial of right of property to establish his right to it. Sanders v. Farrier, Tex.Civ.
App., 271 S.W. 293, 298.
location covers the workings of the prior locators.
Nelson v. Smith, 42 Nev. 302, 176 P. 261, 265.
CLAIM PROPERTY BOND. A bond filed by a defendant in cases of replevin , and of execution to
procure return of goods. Snyder v. Frankenfield,
4 Pa.Dist.R. 767; Weaver v. Lawrence, 1 Da11.
156, 1 L.Ed. 79; 1 Dali.U.S. (4th Ed. by Brightly)
156, 157, note.
CLAIM AND DELIVERY. Action at law for re-'
covery of specific personal chattels wrongfully
taken and detained, with damages which the taking or detention has caused; a modification of
common-law action of replevin. Railroad Co. v.
Gila County, 8 Ariz. 292, 71 P. 913; Farmers & Depositors Bank v. Taylor, 290 Ky. 774, 162 S.W.2d
764, 765.
CLAIM IN EQUITY. In English practice. In simple cases, the summary proceeding by claim was
sometimes adopted. This summary practice was
created by orders 22d April, 1850. See Smith, Ch.
Pr. 664. By Consolid.Ord.1860, viii, r. 4, claims
were abolished. Wharton.
CLAIM OF COGNIZANCE OR OF CONUSANCE.
An intervention by a third person, claiming jurisdiction or demanding judicature in cause, which
plaintiff has commenced out of the claimant's
court. Now obsolete. 2 Wils. 409; 2 Bl.Comm.
350, note; 3 Bl.Comm. 298.
CLAIM OF LIBERTY. In English practice. A.
suit or petition to the queen, in the court of exchequer, to have liberties and franchises confirmed there by the attorney general.
CLAIM OF OWNERSHIP, RIGHT AND TITLE.
As regards adverse possession, claim of land as
one's own to hold it for oneself. Peters v. Gillund, Tex.Civ.App., 186 S.W.2d 1019, 1020. Claim
of right, claim of title and claim of ownership are
synonymous. Ewing v. Tanner, 193 S.E. 243, 247,
184 Ga. 773; City of Rock Springs v. Sturm, 39
Wyo. 494, 273 P. 908, 911. Claimant's intention to
claim in hostility to real owner, Bowden-Gazzam
Co. v. Hogan, 22 Wash.2d 27, 154 P.2d 285, 289,
290. Color of title and claim of title are synonymous. Sullivan v. Neel, 105 Mont. 253, 73 P.2d
206, 208; Walton v. Sikes, 165 Ga. 422, 141 S.E.
188, 190. Intention of disseisor to appropriate
and use land as his own, irrespective of any semblance of color, or right, or title. Marion Inv.
Co. v. Virginia Lincoln Furniture Corporation, 171
Va. 170, 198 S.E. 508, 513, 118 A.L.R. 939.
CLAIMANT. As used in escheat proceeding, persons interested in the estate as heirs. In re Peers'
Estate, 234 Iowa 403, 12 N.W.2d -894, 895. As used
in statute regarding processing tax refunds, one
from whom tax has been collected. Upchurch
Packing Co. v. United States, D.C.Ga., 53 F.Supp.
CLAIM JUMPING. The location on ground, know791, 793. One who claims or asserts a right, deing it to be excess ground, within the staked
mand or claim though sometimes "claimant" has
boundaries of another mining claim initiated prior a more restricted meaning. Weisgerber v. Workthereto, because law governing manner of makmen's Compensation Bureau, 70 N.D. 165, 292
ing location had not been complied with, so that
N.W. G27, 630, 128 A.L.R. 1482.
314
CLASS
CLARENDON, CONSTITUTIONS OF. Certain
statutes made in the reign of Henry II. of England, at a parliament held at Clarendon, (A. D.
1164,) by which the king checked the power of the
pope and his clergy, and greatly narrowed the
exemption they claimed from secular jurisdiction. 4 B1.Comm. 422; Fitz Stephen 27; 2 Lingard 59; 1 Hume 382; Wilkins 321; 1 Poll. & M.
430-440, 461; 2 id. 196.
In admiralty practice. A person who lays claim
to property seized on a libel in rem, and is authorized and admitted to defend the action. 'The
Conqueror, 17 S.Ct. 510, 166 U.S. 110, 41 L.Ed. 937;
Thirty Hogsheads of Sugar, Bentzon, Claimant v.
Boyle, 9 Cranch, 191, 3 L.Ed. 701.
CLAIMANT ADJUSTER. One who will obtain,
secure, enforce, or establish a right, claim, or demand for an individual against an insurance
company. Wilkey v. State ex rel. Smith, 244 Ala.
568, 14 So.2d 536, 543.
CLARIFICATIO. Lat. In old Scotch law. A
making clear; the purging or clearing (clenging)
of an assise. Skene.
CLAM. Lat. In the civil law. Covertly; secretly.
CLASS. The order or rank according to which
persons or things are arranged or assorted.
Also a body of persons uncertain in number,
Weaver v. Liberty Trust Co., 183 A. 544, 548, 170
Md. 212; a group of persons, things, qualities, or
activities, having common characteristics or attributes. Inter-County Rural Electric Co-op. Corporation v. Reeves, 294 Ky. 458, 171 S.W.2d 978,
982. Also grade, Commonwealth ex rel. Margiotti
v. Sutton, 327 Pa. 337, 193 A. 250, 252. Also same
descriptive properties. Cheek-Neal Coffee Co. v.
Hal Dick Mfg. Co., Cust. & Pat.App., 40 F.2d 106,
107.
CLAM FACTUM ID VIDETUR ESSE, QUOD
QUISQUE, QUUM CONTROVERSIAM HABERET, HABITURUMVE SE PUTARET, FECIT.
That appears to be covertly (secretly) done, which
anyone did, when he had a legal dispute, or
thought he would have one. Adams Gloss.
CLAM, VI, AUT PRECARIO. A technical phrase
of the Roman law, meaning by force, stealth, or
importunity.
CLAM DELINQUENTES MAGIS PUNIUNTUR
QUAM PALAM. 8 Coke, 127. Those sinning secretly are punished more severely than those sinning openly.
CLAMEA ADMITTENDA IN ITINERE PER ATTORNATUM. An ancient writ by which the king
commanded the justices in eyre to admit the claim
by attorney of a person who was in the royal service, and could not appear in person. Reg.Orig. 19.
CLASS ACTION. An action brought on behalf of
other persons similarly situated. Mitchell v.
Wright, D.C.Ala., 62 F.Supp. 580, 582; Calabrese
v. Chiumento, D.C.N.J., 3 F.R.D. 435, 437.
CLASS GIFT. A gift of aggregate sum to body of
persons, uncertain in number at time thereof, to
be ascertained at future time, Hepburn v. Winthrop, 83 F.2d 566, 570, 65 App.D.C. 309, 105 A.L.R.
310.
CLASS LEGISLATION. Legislation limited in operation to certain persons or classes of persons,
natural or artificial, or to certain districts of territory or state, Vardaman v. McBee, 1C8 Miss.
251, 21 So.2d 661, 664. Legislation operating upon
'portion of particular class of persons or things.
Shaw v. Fox, 246 Ky. 342, 55 S.W.2d 11.
The term is applied to enactments which divide
the people or subjects of legislation into classes,
with reference either to the grant of privileges
or the imposition of burdens, upon an arbitrary,
unjust, or invidious principle, or which make arbitrary discriminations between those persons or
things coming within the same class. Leuthold
v. Brandjord, 100 Mont. 96, 47 P.2d 41, 45; People
v. Marcello, Mag.Ct.N.Y., 25 N.Y.S.2d 533, 537, 538,
539.
CLAMOR. In old English law. A claim or complaint; an outcry; clamor.
In the civil law. A claimant. A debt; anything claimed from another. A proclamation; an
accusation. Du Cange.
CLANDESTINE. Secret; hidden; concealed.
The "clandestine importation" of goods is a term
used in English statutes as equivalent to "smuggling." Keck v. U. S., 19 S.Ct. 254, 172 U.S. 434,
43 L.Ed. 505. A clandestine marriage is (legally)
one contracted without observing the conditions
precedent prescribed by law, such as publication
of bans, procuring a license, or the like. Hay v.
State, 68 Fla. 458, 67 So. 107.
CLAP. Vulgar name for gonorrhea. Sally v.
Brown, 220 Ky. 576, 295 S.W. 890, 891.
CLARE CONSTAT. (It clearly appears.) In
Scotch law. The name of a precept for giving seisin of lands to an heir; so called from its initial
words. Ersk.Inst. 3, 8, 71.
CLAREMETHEN. In old Scotch law. The warranty of stolen cattle or goods; the law regulating such warranty. Skene.
CLARENDON, ASSIZE OF. A statute (1166) the
principal feature of which was an improvement
of judicial procedure in the case of criminals. It
was a part of the same scheme of reform as the
Constitution of Clarendon. See James C. Carter,
The Law, etc., 65.
CLASS or REPRESENTATIVE ACTION. One in
which one or more members of a class sue either
for themselves or for themselves and other members of a class. Huester v. Gilmour, D.C.Pa., 13 F.
Supp. 630, 631; City of Dallas v. Armour & Co.,
Tex.Civ.App., 216 S.W. 222, 224. The plaintiff in a
representative action before judgment is, as a
rule, dominos litis, (q. v.,) and may discontinue or
compromise the action as he pleases. Sweet.
CLASS REPRESENTATION. Where members of
class sue or are sued on behalf of other members
315
CLASS
judgment is conclusive for and against those mem- • of a tenant for life or other proprietor, contrary
bers of class thus represented, in absence of fraud
to the conditions of his right, become null and
or collusion. Barnes v. Fort, 181 S.W.2d 881, 884, void; and by the "resolutive" clause such right
181 Tenn. 522; Grand International Brotherhood
becomes resolved and extinguished. Bell.
of Locomotive Engineers v. Mills, 43 Ariz, 379, 31
CLAUSE POTESTATIVE. In French law. The
P.2d 971, 982.
name given to the clause whereby one party to
CLASS SUIT, See Class or Representative Ac- a contract reserves to himself the right to annul
tion,
it.
CLASSIARIUS. A seaman or soldier serving at
sea.
CLASSIC!. In the Roman law. Persons employed in servile duties on board of . vessels. Cod.
11, 12.
CLASSIFICATION. A grouping into classes.
Davison v. Parke Austin & Lipscomb, 19 N.Y.S.2d
117, 121, 173 Misc. 782.
It is the grouping of things in speculation or practice
because they agree with one another in certain particulars and differ from other things in those particulars.
Southern Package Corporation v. State Tax Commission,
164 So. 45, 47, 174 Miss. 212; Anderson v. Board of Public
Instruction of Hillsborough County, 102 Fla, 695, 136 So.
334. The putting together of like subjects or facts under
common designation, Tuttle v. Board of Education of Salt
Lake City, 77 Utah, 270, 294 P. 294, 299.
The word may have two meanings, one primarily signifying a division required by statutes, fundamental and substantial, and the other secondary, signifying an arrangement or enumeration adopted for convenience only. In re
Wichita Falls & Southern Ry. Co., D.C.Tex., 30 F.Supp.
750, 751.
In the practice of the English chancery division, where
an administration action, it appears to the judge (or
chief clerk) that any of the parties form a class having
the same interest, he may require them to be represented
by one solicitor, to prevent expense of each attending by
separate solicitors. In practice the term is also applied to
the directions given by the chief clerk as to which of the
parties are to attend on each of the accounts and inquiries directed by the judgment. Sweet.
CLASSIFICATION OF RISKS. Term in fire insurance to the nature and situation of the articles
insured, and in accident insurance to the occupation of the applicant. Hopkins v. Connecticut General Life Ins, Co., 225 N.Y. 76, 121 N.E. 465, 467.
CLASSIFIED. Grouped in classes. People v.
Johnson, 42 Cal.App.2d Supp. 827, 109 P.2d 770, 774.;
CLASSIFIED CIVIL SERVICE. The primary
meaning is that there be classification, while secondary meaning is mere arrangement or enumeration in schedule of titles of positions. Matter of
Merriweather v. Roberts, 274 N.Y.S. 188, 190, 152
Misc. 57.
CLASSIFY. Group. Breslav v. New York &
Queens Electric Light & Power Co., 291 N.Y.S. 932,
935, 249 App.Div. 181; Esquire, Inc., v. Walker,
D.C.D.C., 55 F.Supp. 1015, 1021.
CLAUSE. A single paragraph or subdivision of a
legal document, such as a contract, deed, will, constitution, or statute. Sometimes a sentence or part
of a sentence. Bee Line Transp. Co. v. Connecticut Fire Ins. Co. of Hartford, C.C.A.N.Y., 76 F.2d
759, 760.
CLAUSE IRRITANT. In Scotch law. By this
clause, in a deed or settlement, the acts or deeds
CLAUSE ROLLS. In English law. Rolls which
contain all such matters of record as were committed to close writs; these rolls are preserved in
the Tower.
CLAUSULA. A clause; a sentence or part of a
sentence in a written instrument or law.
CLAUSULA DEROGATIVA. A clause in a will
which provides that no will subsequently made is
to be valid. The latter would still be valid, but
there would be ground for suspecting undue influence. Grotius.
CLAUSULA GENERALIS DE RESIDUO NON
EA COMPLECTITUR QUIE NON EJUSDEM
SINT GENERIS CUM IIS QUAZE SPECIATIM
DICTA FUERANT. A general clause of remain! der does not embrace those things which are not
of the same kind with those which had been specially mentioned. Lofft, Appendix, 419.
CLAUSULA GENERALIS NON REFERTUR AD
EXPRESSA. 8 Coke, 154. A general clause does
not refer to things expressed.
CLAUSULA QUZE ABROGATIONEM EXCLUDIT
AB INITIO NON VALET. A clause [in a law]
which precludes its abrogation is void from the
beginning. Bac.Max. 77.
CLAUSULA VEL DISPOSITIO INUTILIS PER
PRIESUMPTIONEM REMOTAM, VEL CAUSAM
EX POST FACTO NON FULCITUR. A useless
clause or disposition [one which expresses no
more than the law by intendment would have supplied] is not supported by a remote presumption,
[or foreign intendment of some purpose, in regard whereof it might be material,] or by a cause
arising afterwards, [which may induce an operation of those idle words.] Bac.Max. 82, regula 21.
CLAUSULiE INCONSUETIE SEMPER INDUCUNT SUSPICIONEM. Unusual clauses [in an instrument] always induce suspicion. 3 Coke, 81.
CLAUSUM. Lat. Close, closed up, sealed. Inclosed, as a parcel of land.
In old English law. Close. Closed.
A writ was either clausum (close) or apertum (open).
Grants were said to be by literce patentce (open grant) or
literce clausce (close grant) ; 2 Bla.Comm. 346. Occurring
in the phrase quare clausum fregit ( Rucker v. McNeely, 4
Blackf. [Ind.] 181), it denotes in this sense only realty in
which the plaintiff has some exclusive interest, whether for
a limited or unlimited time or for special or for general
purposes ; 1 Chit.P1. 174; Austin v. Sawyer, 9 Cow. (N.Y.)
39; 6 East, 606.
CLAUSUM FREGIT. L. Lat. (He broke the
close.) In pleading and practice. Technical
316
CLEAR
704, 178 Misc. 582; and where result will be to leave property in hands of one having no claim thereto or require
further litigation, Harrell v. Allen, 183 Va. 722, 33 S.E.2d
222, 226. The act must prejudicially affect defendant,
Wiley v. Wiley, 59 Cal.App.2d 840, 139 P.2d 950, 951. But
'it has been held that application of maxim is not limited to
a case where the iniquitous action is one of which the moving party may personally complain. Leo Feist, Inc. v.
Young, D.C.Wis., 46 F.Supp. 622, 628.
words formerly used in certain actions of trespass, and still retained in the phrase quare clausurn fregit (q. v.).
CLAUSUM PASCHIIE. In English law. The morrow of the utas, or eight days of Easter; the end
of Easter; the Sunday after Easter-day. 2 Inst.
157.
CLEAN OIL. Oil which has 3 per cent. or less
by volume of water and sediment. Alamitos
Land Co. v. Shell Oil Co., 3 Ca1.2d 396, 44 P.2d 573,
575.
CLAUSURA. In old English law. An inclosure.
Clausura heyce, the inclosure of a hedge. Cowell.
CLAVES CURVE, The keys of the court. They
were the officers of the Scotch courts, such as
clerk, doomster, and serjeant. Burrill.
CLEAN WATER. Water that is not filthy or polluted. U. S. v. Durst, D.C.W.Va., 59 F.Supp. 891,
894.
CLAVES INSULIE. In Manx law. The keys of
the Island of Man, or twelve persons to whom all
ambiguous and weighty causes are referred.
CLEAR. Obvious; beyond reasonable doubt; perspicuous; plain.
Free from all limitation, qualification, question, or shortcoming. Condorodis v. Kling, 33 Ohio App. 452, 169 N.E.
836, 838. Ex parte Williams, 128 Tex.Cr.R. 148, 79 S.W.2d
325, 326; Free from incumbrance, obstruction, burden,
li mitation, etc., Frank v. Murphy, 64 Ohio App. 501, 29 N.E.
2d 41, 43; Plain, evident, free from doubt or conjecture,
also unincumbered, free from deductions or drawbacks,
Ketch v. Smith, 131 Okl. 263, 268 P. 715, 717. That which
can be seen without dimness, Bremner v. Marc Eidlitz &
Son, 118 Conn. 666, 174 A. 172, 174.
CLAVIA. In old English law. A club or mace;
tenure per serjeantiam clavice, by the serjeanty
of the club or mace. Cowell.
CLAVIGERATUS. A treasurer of a church.
CLAWA. A close, or small inclosure. Cowell.
CLEAN. Irreproachable; innocent of fraud or
wrongdoing; free from defect in form or substance; free from exceptions or reservations. It is
a very elastic adjective, however, and is particularly dependent upon context. Clampitt v. St. Louis
Southwestern R. Co. of Texas, Tex.Civ.App., 185
S.W. 342, 344.
CLEAR AND CONVINCING PROOF. Generally,
this phrase and its numerous variations mean
proof beyond a reasonable, i. e., a well-founded
doubt. Southwestern Bell Telephone Co. v. City
of San Antonio, Tex., D.C.Tex., 4 F.Supp. 570, 573.
Some cases give a less rigcrous, but somewhat
uncertain, meaning, viz., more than a preponderance but less than is required in a criminal case.
O'Briant v. Lee, 212 N.C. 793, 195 S.E. 15, 20.
CLEAN BILL OF HEALTH. One certifying that
no contagious or infectious disease exists, or certifying as to healthy conditions generally without
exception or reservation.
CLEAN BILL OF LADING. One without exception or reservation as to the place or manner of
stowage of the goods, and importing that the
goods are to be (or have been) safely and properly stowed under deck. The Delaware, 14 Wall.
596, 20 L.Ed. 779; The St. Johns N. F., C.C.A.
N.Y., 272 F. 673, 674. One which contains nothing
in the margin qualifying the words in the bill of
lading itself. The Isla de Panay, C.C.A.N.Y., 292
F. 723, 730; Thomas Roberts & Co. v. Calmar S. S.
Corp., D.C.Pa., 59 F.Supp. 203, 209.
CLEAN HANDS. Equitable relief may be denied
on ground of deceit or impurity of motive, O'Brien
v. Hamill, 264 N.Y.S. 557, 147 Misc. 709; fraud or
wilful misconduct, Eresch v. Braecklein, C.C.A.
Kan., 133 F.2d 12, 14; Margolis v. Burke, Sup., 53
N.Y.S.2d 157, 161, 162; unjust and unfair conduct,
Dutch Maid Bakeries v. Schleicher, 58 Wyo. 374,
131 P.2d 630, 634; unlawful or inequitable conduct,
Rhodes v. Miller, 179 So. 430, 432, 189 La. 288;
Lodati v. Lodati, 52 N.Y.S.2d 119, 120, 268 App.
Div. 1003; wrongdoing, Dales v. Muir, 351 Pa.
187, 40 A.2d 476, 477.
A higher degree of proof than weight of the evidence,
Snyderwine v. McGrath, 343 Pa. 245, 22 A.2d 644, 647. Independent facts and circumstances which are, in opinion
of court and jury, strong, Wright v. Austin, Tex.Civ.App.,
175 S.W.2d 281, 284; it shall be found that witnesses are
credible, that they distinctly remember facts to which
they testify, that they narrate details exactly, and that
their statements are true, McDonnell v. General News
Bureau, C.C.A.Pa., 93 F.2d 898, 901. The degree of proof
which will produce in the mind of the court a firm belief
or conviction. In re Chappell, Ohio App., 33 N.E.2d 393,
397. Evidence that convinced a presumably unbiased and
unprejudiced jury, Pegues v. Dilworth, 134 Tex. 169, 132
S. W.2d 582, 586. Proof sufficient to convince ordinarily
prudent minded people. Rowland v. Holt, 253 Ky. 718, 70
S. W.2d 5, 9. The proof need not be conclusive. Hobart v.
Hobart Estate Co., 26 Ca1.2d 412, 159 P.2d 958, 976.
CLEAR AND PRESENT DANGER. Immediately
serious violence is expected or is advocated or past
conduct furnishes reason to believe such advocacy
is contemplated. United States v. Korner, D.C.Cal.,
56 F.Supp. 242, 248.
CLEAR ANNUAL VALUE. The net yearly value
to the possessor of the property, over and above
taxes, interest on mortgages, and other charges
and deductions. Shelton v. Campbell, 109 Tenn.
690, 72 S.W. 112.
CLEAR ANNUITY. The devise of an annuity
"clear" means an annuity free from taxes (Hodgworth v. Crawley, 2 Atk. 376) or free or clear of
legacy or inheritance taxes. In re Bispham's Estate, 24 Wkly.Notes Cas. (Pa.) 79.
317
The maxim is confined to misconduct in relation to or
connected with the matter in litigation. Teuscher v.
Grogg, 136 Okl. 129, 276 P. 753, 760, 66 A.L.R. 143; Hartman v. Cohn, 350 Pa. 41, 38 A.2d 22, 25. It is inapplicable
where to withhold relief would offend public morals more
than to grant relief, Furman v. Furman, 34 N.Y.S.2d 699,
CLEAR,
CLEAR CHANCE. A chance is a clear chance if
exercise of vigilance would have discovered helpless peril and avoided the injury. Leinbach v.
Pickwick Greyhound Lines, 138 Kan. 50, 23 P.2d
449, 456, 92 A.L.R. 1.
CLEAR DAYS. If a certain number of clear days
be given for the doing of any act, the time is to
be reckoned exclusively, as well of the first day
as the last. Hodgins v. Hancock, 14 Mees. & W.
120; State v. Marvin, 12 Iowa 502.
CLEAR EVIDENCE OR PROOF. Evidence which
is positive, precise and explicit, which tends directly to establish the point to which it is adduced
and is sufficient to make out a prima facie case.
Reynolds v. Blaisdell, 23 R.I. 16, 49 A. 42.
It necessarily means a clear preponderance. It may
mean no more than a fair preponderance of proof but
may be construed as requiring a higher degree of proof.
It may convey the idea, under emphasis, of certainty. It
may be understood as meaning beyond doubt. The expression is equivocal and mischievous. Aubin v. Duluth St. Ry.
Co., 169 Minn. 342, 211 N.W. 580, 583.
CLEAR LEGAL RIGHT. A right inferable as a
matter of law from uncontroverted facts. Federal Land Bank of Springfield v. Pickard, 9 N.Y.S.
2d 696, 707, 169 Misc. 753.
CLEAR MARKET PRICE. Fair market price,
In re Spitly's Estate, 124 Cal.App. 642, 13 P.2d 385,
386.
CLEAR MARKET VALUE. With regard to inheritance tax, highest price obtainable. In re
Nicklas' Estate, 132 N.J.L. 450, 41 A.2d 122, 124;
net value, Hamlen v. Martin, 128 N.J.Eq. 393, 16
A.2d 457, 459; sum which property would bring on
a fair sale by a willing seller not obliged to sell to
a willing buyer not obliged to buy, or fair market value, or cash value, In re Ryerson's Estate,
239 Wis. 120.
Bouse v. Hutzler, 180 Md. 682, 26 A.2d 767, 769, 141
A.L.R. 843; sum which, after deducting amount
necessary for payment of such taxes, yielded the
amount of the specific legacies where will directed that taxes should not be deducted from legacies. Bouse v. Hutzler, 180 Md. 682, 26 A.2d 767,
769, 141 A.L.R. 843.
CLEARANCE. In Maritime law. The right of
a ship to leave port. The act of clearing or leaving port. The certificate issued by the collector
of a port evidencing the power of the ship to leave
port. Hamburg-American Steam Packet Co. v.
U. S., C.C.A.N.Y., 250 F. 747, 759. Worcester,
Dict.
In contract for exhibition of motion pictures, the
interval of time between conclusion of exhibition
in one theater and commencement of exhibition at
another theater. Waxmann v. Columbia Pictures
Corporation, D.C.Pa., 40 F.Supp. 108, 111.
CLEARANCE CARD. A letter given to an employee by his employer, at the time of his discharge or end of service, showing the cause of
such discharge or voluntary quittance, the length
of time of service, his capacity, and such other
facts as would give to those concerned information
of his former employment. Cleveland, C., C. & St.
L. R. Co. v. Jenkins, 174 Ill. 398, 51 N.E. 811, 62
L.R.A. 922, 66 Am.St.Rep. 296.
CLEARING. The departure of a vessel from port,
after complying with the customs and health laws
and like local regulations.
In mercantile law. A method of making exchanges and settling balances, adopted among
banks and bankers.
CLEAR RESIDUE. Addition of income from
CLEARING-HOUSE. A device or an association,
usually unincorporated, for adjustment and payment of daily balances between banks in a city.
Andrew v. Farmers' & Merchants' Sa y . Bank of
Moravia, 215 Iowa 1336, 245 N.W. 226, 229.
tion expenses, and general legacies, to residue of
estate. In re Foster's Will, 256 N.Y.S. 383, 385,
143 Misc. 191.
CLEARING LOAN. One made to a bond dealer
while an issue of bonds are being sold. In re
Stone's Will, 211 Wis. 518, 248 N.W. 446, 447.
CLEAR TITLE. Good title, Clark v. Ray, Tex.
Civ.App., 96 S.W.2d 808, 813; marketable title,
Gantt v. Harper, 82 Mont. 393, 267 P. 296, 298;
contra, Frank v. Murphy, 64 Ohio App. 501, 29 N.E.
2d 41, 43; one free from incumbrance, obstruction,
burden, or limitation. Frank v. Murphy, 64 Ohio
App. 501, 29 N.E.2d 41, 43.
CLEARING TITLE. Acts or proceedings necessary to render title marketable. Johnston v. Cox,
114 Fla. 243, 154 So. 206.
funds, used to pay decedent's debts, administra-
For a clear deed, see Rohr v. Kindt, 3 Watts & S. (Pa.)
563, 39 Am.Dec. 53; clear of expense; 2 Ves. & B. 341;
clear of assessments; Peart v. Phipps, 4 Yeates (Pa.) 386;
clear bill of lading; William Zoller Co. v. Hartford Fire
Ins. Co., 272 Pa. 386, 116 A. 359, 362. See, also, Clean Bill
of Lading.
CLEAR TITLE OF RECORD. Freedom from apparent defects, grave doubts, and litigious uncertainties; such title as a reasonably prudent person, with full knowledge, would accept. Tull v.
Milligan, 173 Okl. 131, 48 P.2d 835, 842.
CLEARINGS. Method of making exchanges and
settling balances among banks and bankers. Andrew v. Farmers' & Merchants' Sa y . Bank of
Moravia, 215 Iowa 1336, 245 N.W. 226, 228.
CLEARLY. Visible, unmistakable, in words of no
uncertain meaning. Johnson v. Grady County, 50
Oki. 188, 150 P. 497.
Beyond a question or beyond a reasonable doubt, Johnson v. Grady County, 50 Okl. 188, 150 P. 497, 502; honestly,
straightforwardly, and frankly, Huntington Securities Corporation v. Busey, C.C.A.Ohio, 112 F.2d 368, 370; plainly,
Huntington Securities Corporation v. Busey, C.C.A.Ohio,
112 F.2d 368, 370; without obscurity, without obstruction,
without entanglement or confusion, without uncertainty.
Commonwealth v. Scovern, 292 Pa. 26, 140 A. 611, 614.
CLEARLY ERRONEOUS. Findings when based
CLEAR VALUE. With regard to net value after
payment of debts and expenses of administration,
upon substantial error in proceedings or misappli318
CLERICUS
S. W.2d 97; errors, mistakes, or omissions by clerk, writer,
counsel, or judge which are not the result of exercise of
judicial function; Pacific Finance Corporation of California v. La Monte, 64 Idaho 438, 133 P.2d 921, 922; Wilson v. City of Fergus Falls, 181 Minn. 329, 232 N.W. 322,
323; failure of clerk to enter order, Keller v. Cleaver, 67
P.2d 131, 133,• 20 Cal.App.2d 364; omission in statutory
provision, Craig v. State, 164 S.W.2d 1007, 1008, 204 Ark.
798; order fixing tax rate below statutory rate, In re
Jagnow's Estate, 266 N.Y.S. 785, 788, 148 Misc. 657; placing of case on calendar without notice, New England Furniture & Carpet Co. v. Willcuts, D.C.Minn., 55 F.2d 983,
987; purported order incongruous and irrelevant to surrounding recitals, Carpenter v. Pacific Mut. Life Ins. Co.
of California, 14 Cal.2d 704, 96 P.2d 796, 799; signature by
judge to judgment which does not express judicial desire
or intention, Bastajian v. Brown, 19 Cal.2d 209, 120 P.2d
9, 12.
cation of law, Kauk v. Anderson, C.C.A.N.D., 137
F.2d 331, 333; or when unsupported by substantial
evidence, or contrary to clear weight of evidence
or induced by erroneous view of the law. Gasifier
Mfg. Co. v. General Motors Corporation, C.C.A.
Mo., 138 F.2d 197, 199; Smith v. Porter, C.C.A.
Ark., 143 F.2d 292, 294.
CLEARLY EXPRESSED IN TITLE. Title must
so express subject that lawmakers and people may
not be left in doubt as to matters treated. Home
Insurance Co. of New York v. Dahmer, 167
Misc. 893, 150 So. 650, 651.
CLEARLY PROVED. Preponderance of the evidence. Olson v. Union Oil Co. of California, Cal.
App., 25 Cal.App.2d 627, 78 P.2d 446, 447.
Proof sufficient to satisfy mind of finder of fact. that its
weight is such as to cause a reasonable person to accept
the fact as established. In re Frihauf, 58 Wyo. 479, 135 P.
2d 427, 433.
CLEARLY REFLECTS THE INCOME. Any method of accounting which clearly reflects a reasonable allowance for depreciation. Chicago & N. W.
R. Co. v. Commissioner of Internal Revenue, C.C.
A.7, 114 F.2d 882, 885.
CLEMENT'S INN. An inn of chancery. See Inns,
of Chancery.
CLEMENTINES. In canon law. The collection
of decretals or constitutions of Pope Clement V.,
made by order of John XXII., his successor, who
published it in 1317.
CLERICAL MISPRISION. Mistake or fraud perpetrated by clerk of court which is susceptible of
demonstration by face of record, or a clerical error, which is an error by clerk in transcribing or
otherwise apparent on the face of the record.
Ballew v. Fowler, 285 Ky. 149, 147 S.W.2d 65, 66.
But see Newman v. Ohio Valley Fire & Marine
Ins. Co., 221 Ky. 616, 299 S.W. 559, 560.
CLERICAL TONSURE. The having the head
shaven, which was formerly peculiar to clerks, or
persons in orders, and which the coifs worn by
serjeants at law are supposed to have been introduced to conceal. 1 Bl.Comm. 24, note t; 4 Bl.
Comm. 367.
CLERICALE PRIVILEGIUM. In old English law.
The clerical privilege; the privilege or benefit of
clergy.
CLENGE. In old Scotch law. To clear or acquit
of a criminal charge. Literally, to cleanse or
clean.
CLEP AND CALL. In old Scotch practice. A
solemn form of words prescribed by law, and used
in criminal cases, as in pleas of wrong and unlaw.
CLERICI DE CANCELLARIA; CLERICI DE
CURSU. Clerks of the chancery. See Cursitors.
CLERICI NON PONANTUR IN OFFICIIS. Co.
Litt. 96. Clergymen should not be placed in offices; i. e., in secular offices. See Lofft, 508.
CLERIC! PRIENOTARIL The six clerks in chancery. 2 Reeve, Eng.Law, 251.
CLERGY. The whole body of clergymen or ministers of religion. Also an abbreviation for "benefit
of clergy." See Benefit of Clergy.
CLERICO ADMITTENDO. See Admittendo Cleri-
Regular clergy. Monks who lived secundum regulas (according to the rules) of their respective houses or societies
were so denominated in old English Law in contradistinction to the parochial clergy, or "secular" clergy. 1 Chit.
Bl. 387, note.
CLERGYABLE. In old English law. Allowing
of, or entitled to, the benefit of clergy (privilegium
clericale). Used of persons or crimes. 4 Bla.
Com. 371. See Benefit of Clergy.
CLERGYMAN. Spiritual representative of church.
In re Swenson, 183 Minn. 602, 237 N.W. 589, 591.
CLERICAL. Pertaining to clergymen; or pertaining to the office or labor of a clerk.
CLERICAL ERROR. Generally, a mistake in
writing or copying. 1 L.Raym. 183; Los Angeles
Shipbuilding & Dry Dock Corporation v. Los Angeles County, 22 Cal.App.2d 418, 71 P.2d 282;
Franklin v. State, 240 Ala. 57, 197 So. 58, 59.
CO.
CLERICO CAPTO PER STATUTUM MERCATORUM. A writ for the delivery of a clerk out
of prison, who was taken and incarcerated upon
the breach of a statute merchant. Reg.Orig. 147.
CLERICO CONVICTO COMMISSO GAOLZE IN
DEFECTU ORDINARII DELIBERANDO. An ancient writ, that lay for the delivery to his ordinary
of a clerk convicted of felony, where the ordinary
did not challenge him according to the privilege
of clerks. Reg.Orig. 69.
CLERIC() INFRA SACROS ORDINES CONSTITUTO, NON ELIGENDO IN OFFICIUM. A writ
directed to those who had thrust a bailiwick or
other office upon one in holy orders, charging them
to release him. Reg.Orig. 143.
CLERICUS. In old English law. A clerk or
priest; a person in holy orders; a secular priest;
a clerk of a court. An officer of the royal household, having charge of the receipt and payment of
319
It may include error apparent on face of instrument,
record, indictment or information, In re Goldberg's Estate, 10 Ca1.2d 709, 76 P.2d 508, 512; error in respect of
matters of record, Shotwell v. State, 135 Tex.Cr.R. 366, 120
CLERICUS
moneys, etc. Fleta enumerates several of them,
with their appropriate duties; as clericus coquincs,
clerk of the kitchen; clericus panetr' et butelr',
clerk of the pantry and buttery. Lib. 2, cc. 18, 19.
In Roman law. A minister of religion in the
Christian church; an ecclesiastic or priest. Cod.
1, 3; Nov. 3, 123, 137. A general term, including
bishops, priests, deacons, and others of inferior
order. Brissonius. Also of the amanuenses of
the judges or courts of the king. Du Cange.
CLERICUS ET AGRICOLA ET MERCATOR,
TEMPORE BELLI, UT ORET, COLAT, ET COMMUTET, PACE FRUUNTUR. 2 Inst. 58. Clergymen, husbandmen, and merchants, in order that
they may preach, cultivate, and trade, enjoy peace
in time of war.
CLERICUS MERCATI. In old English law. Clerk
of the market. 2 Inst. 543.
CLERICUS NON CONNUMERETUR IN DUABUS
ECCLESIIS. 1 Rolle. A clergyman should not
be appointed to two churches.
CLERICUS PAROCHIALIS. In old English law.
A parish clerk.
CLERIGOS. In Spanish law. Clergy; men chosen for the service of God. White, New Recop. b.
1, tit. 5, ch. 4.
CLERK. One who sells goods, waits on customers,
or engages in clerical work such as bookkeeping,
copying, transcribing, letter writing, tabulating,
etc., a stenographer, etc., Appeal of Walker, 294
Pa. 385, 144 A. 288, 289; In re Goldman Stores,
D.C.La., 3 F.Supp. 936, 937.
In New England, used to designate a corporation official
who performs some of the duties of a secretary. As used
in statute service on clerk of corporation, some general officer of the corporation, Baker v. New York Cent. R. Co., 16
N.Y.S.2d 78, 79, 258 App.Div. 854.
A person employed in a public office, or as an
officer of a court, whose duty is to keep records or
accounts. In re Allen, N.J.Sup., 95 A. 215, 216;
Crawford v. Roloson, 254 Mass. 163, 149 N.E. 707,
709. See Clerk of Court.
A person serving a practicing solicitor under binding articles in England, for the purpose of being admitted to practice as a solicitor. Under exemption provision of Civil
Service Law a private or confidential clerk of elective
judicial officer. Neary v. O'Connor, 18 N.Y.S.2d 634, 637,
173 Misc. 696.
A person in holy orders; a clergyman; an individual attached to the ecclesiastical state, and
who has the clerical tonsure. See 4 Bl.Comm. 366,
367.
CLERK OF ARRAIGNS. In English law. An assistant to the clerk of assise. His duties are in
the crown court on circuit.
CLERK OF ASSISE. In English law. Officers
who officiate as associates on the circuits. They
record all judicial proceedings done by the judges
on the circuit.
ess, enters judgments and orders, gives certified
copies from the records, etc. Ross v. Heathcock,
57 Wis. 89, 15 N.W. 9; Gordon v. State, 2 Tex.
App. 154. An assistant whose principal duty is
to make correct memorial of court's orders and
directions. People's Ditch Co. v. Foothill Irr. Dist.,
123 Cal.App. 251, 11 P.2d 86, 88.
CLERK OF ENROLLMENTS. In English law.
The former chief officer of the English enrollment
office, (q. v.) He now forms part of the staff of
the central office.
CLERK OF THE CROWN IN CHANCERY. See
Crown Office in Chancery.
CLERK OF THE HOUSE OF COMMONS. An
officer of the English house of commons appointed
by the crown. He makes entries, remembrances,
and journals of the things done and passed in the
house. He signs all orders of the house, indorses
the bills sent or returned to the lords, and reads
whatever is required to be read in the house. He
has the custody of all records and other documents. May, Parl.Pr. 236.
CLERK OF THE MARKET. The overseer or
superintendent of a public market. In old English
law, he was a quasi judicial officer, having power
to settle controversies arising in the market between persons dealing there. Called "clericus
mercati." 4 Bl.Comm. 275.
CLERK OF THE PARLIAMENTS. One of the
chief officers of the house of lords. He is appointed by the crown, by letters patent. On entering
office he makes a declaration to make true entries
and records of the things done and passed in the
parliaments, and to keep secret all such matters
as shall be treated therein. May, Parl.Pr. 238.
CLERK OF THE PEACE. In English law. An officer whose duties are to officiate at sessions of the
peace, to prepare indictments, and to record the
proceedings of the justices, and to perform a number of special duties in connection with the affairs
of the county.
CLERK OF THE PETTY BAG. See Petty Bag
Office.
CLERK OF THE PRIVY SEAL. These officers attend the lord privy seal, or, in absence ox tile lora
privy seal, the principal secretary of state. Their
duty is to write and make out all things that are
sent by warrant from the signet to the privy seal,
and which are to be passed to the great seal; and
also to make out privy seals (as they are termed)
upon any special occasion of his majesty's affairs.
Cowell.
CLERK OF THE SIGNET. An officer, in England, whose duty it is to attend on the king's principal secretary, who has the custody of the privy
signet, as well for the purpose of sealing his majesty's private letters, as also grants which pass
his majesty's hand by bill signed. Cowell.
CLERK OF COURT. An officer of a court of jusCLERK OF THE TABLE. An official of the Brittice who has charge of the clerical part of its busiish House of Commons who advises the speaker
ness, who keeps its records and seal, issues procon all questions of order.
320
CLOSE
CLERKS OF INDICTMENTS. Officers attached
to the central criminal court in England, and to
each circuit. They prepare and settle indictments
against offenders, and assist the clerk of arraigns.
CLERKS OF RECORDS AND WRITS. Officers
formerly attached to the English court of chancery, whose duties consisted principally in sealing
bills of complaint and writs of execution, filing affidavits, etc. By the judicature (officers') act,
1879, they have been transferred to the central
office of the supreme court, under the title of
"Masters of the Supreme Court," and the office
has been abolished. Sweet.
CLERKS OF SEATS. In the principal registry of
the probate division of the English high court,
they discharge the duty of preparing and passing
the grants of probate and letters of administration, take bonds from administrators, receive
caveats against a grant being made, etc. Sweet.
CLERKSHIP. The period which must be spent
by a law-student in the office of a practising attorney before admission to the bar. 1 Tidd Pr. 61,
et seq. In re Dunn, 43 N.J.Law, 359, 39 Am.Rep.
600.
In old English practice. The art of drawing pleadings
and entering them on record in Latin, in the ancient court
hand; otherwise called "skill of pleading in actions at the
common law."
CLIENS. Lat. In the Roman law. A client or dependent. One who depended upon another as his
patron or protector, adviser or defender, in suits
at law and other difficulties. Dionys. ii. 10;
Adams, Rom.Ant. 33.
CLIENT. A person who employs or retains an
attorney, or counsellor, to appear for him in
courts, advise, assist, and defend him in legal proceedings, and to act for him in any legal business.
McCreary v. Hoopes, 25 Miss. 428; McFarland v.
Crary, 6 Wend., N.Y., 297; Cross v. Riggins, 50
Mo. 335. It should include one who disclosed
confidential matters to attorney while seeking professional aid, whether attorney was employed or
not. Sitton v. Peyree, 117 Or. 107, 241 P. 62, 64.
CLIENTELA. In old English law. Clientship, the
state of a client; and, correlatively, protection,
patronage, guardianship.
CLIFFORD'S INN. An inn of chancery. See Inns
of Chancery.
CLINICAL TESTS. Observations made of patient
by physician or surgeon without the aid of instruments, apparatus or chemical examinations for
the discovery of the existence or progress of disease or the patient's condition. Peterson v. Widule, 157 Wis. 641, 147 N.W. 966, 970, 52 L.R.A.,
N.S., 778.
CLITO. In Saxon law. The son of a king or emperor. The next heir to the throne; the Saxon
adeling. Spelman.
CLOERE. A jail; a prison or dungeon.
CLOSE, v. To finish, terminate, complete, wind
up; as, to "close" an account, a bargain, an estate, or public books, such as tax books. Bilaf sky
v. Abraham, 183 Mass. 401, 67 N.E. 318.
To shut up, so as to prevent entrance or access
by any person; as in statutes requiring saloons
to be "closed" at certain times, which further implies an entire suspension of business, Texas Co.
v. Texarkana Mach. Shops, Tex.Civ.App., 1 S.W.
2d 928, 931.
CLOSE, n. A...portion of land, as a field,Inaue,
as by a hedge, fence, or other visible inclosure, 3
Bl.Comm. 209, or by an invisible ideal boundary
ssz.
founded on limit of title.
levejAfftoita
The Interest of a • erson in an partic
iece • f
:r
, w e er actua y nc ose•or no Meade v. Wat.
son, 67 Cal. 591, 8 Pac. 311.
In practice. The word means termination;
winding up. Thus the close of the pleadings is
where the pleadings are finished, i. e., when issue
has been joined.
CLOSE, adj. In practice. Closed or sealed' up.
A term applied to writs and letters, as distinguished from those that are open or patent.
CLOSE COPIES. Copies of legal documents which
might be written closely or loosely at pleasure;
as distinguished from office copies.
CLOSE CORPORATION. See Corporation.
CLOSE-HAULED. In admiralty law, this nautical term means the arrangement or trim of a vessel's sails when she endeavors to make a progress
in the nearest direction possible towards that
point of the compass from which the wind blows.
But a vessel may be considered as close-hauled,
although she is not quite so near to the wind as
she could possibly lie. Chadwick v. Packet Co.,
6 El. & Bl. 771.
CLOSE JAIL EXECUTION. A body execution
which has indorsed in or upon it the statement
that the defendant ought to be confined in close
jail. Ex parte Thompson, 111 Vt. 7, 9 A.2d 107.
CLOSE MOLDS. Molds in two parts, called the
drag and the case (or cope) forming together a
two-part flask, one part being placed over the other and each being impressed with one half of
the matrix or pattern. Cole v. U. S., C.C.A.Colo.,
269 F. 250, 252.
CLOSE ROLLS. Rolls containing the record of
the close writs (literce clausce) and grants of
the king, kept with the public records. 2 Bl.
Comm. 346.
CLIPPED SOVEREIGNTY. In the relations of
the several states of the United States to other
nations, the states have what is termed a clipped
CLOSE SEASON. The season of the year or pesovereignty. Anderson v. N. V. Transandine
riod of time in which the taking of particular
Handelmaatschappij, Sup., 28 N.Y.S.2d 547, 552.
game or fish is prohibited, or in which all hunting
Black's Law Dictionary Revised 4th Ed.-21
321
CLOSE
or fishing is forbidden by law. State v. Theriault,
70 Vt. 617, 41 A. 1030, 43 L.R.A. 290, 67 Am.St.Rep.
695. Cf. Fence-Month.
CLOSE TO. Near; very near; immediately adjoining. Govier v. Brechler, 159 Wis. 157, 149 N.
W. 740, 742.
CLOSE WRIT. See Writ.
CLOSED COURT. A term sometimes used to designate the Common Pleas Court of England when
only serjeants could argue cases, which practice
persisted until 1833.
CLOSED SEASON. The same as "close season"
(q. v.).
CLOSED SHOP. Such shop exists where worker
must be member of union as condition precedent
to employment. Miners in General Group v. Hix,
123 W.Va. 637, 17 S.E.2d 810, 813.
CLOSED SHOP CONTRACT. A contract requiring employer to hire only union members and to
discharge non-union members and requiring that
employees, as a condition of employment, remain
union members. Silva v. Mercier, Cal.App., 187
P.2d 60, 64.
CLOTHING WOOL. Short-stapled wool prepared
by carding, as distinguished from "combing wool,"
which is long-stapled wool prepared by combing.
U. S. v. Stone & Downer Co., 12 Ct.Cust.App. 557,
558.
CLOTURE. The procedure in deliberative assemblies whereby debate is closed.
Introduced in the English parliament in the session of
1882.
It is generally effected by moving the previous question.
See Roberts, Rules of Order §§ 20, 58a.
CLOUD ON TITLE. An outstanding claim or incumbrance which, if valid, would affect or impair
the title of the owner of a particular estate, and
on its face has that effect, but can be shown by
extrinsic proof to be invalid or inapplicable to
the estate in que3tion. A conveyance, mortgage,
judgment, tax-levy, etc., may all, in proper cases,
constitute a cloud on title. Parker v. Vallerand,
136 Me. 519, 8 A.2d 594; Anderson v. Guenther,
144 Or. 446, 25 P.2d 146.
It is not necessary in West Virginia that claim be valid
on its face. Gardner v. Buckeye Savings & Loan Co., 108
W.Va. 673, 152 S.E. 530, 532.
CLOUGH. A valley. Also an allowance for the
turn of the scale, on buying goods wholesale by
weight.
CLUB. A voluntary, incorporated or unincorporated association of persons for purposes of a
social, literary, or political nature, or the like.
A club is not a partnership. 2 Mees. & W. 172.
ducts the club with a view to profit. Van Pelt v. Hilliard,
75 Fla. 792, 78 So. 693, 695.
CLUB-LAW. Rule of violence; regulation by
force; the law of arms.
CLUTCH. A device introduced in the transmission, some place between the mechanism in which
power is created and the mechanism to which it
is applied, and which serves to make and break
the connection between the two. Eclipse Mach.
Co. v. Harley Davidson Motor Co., C.C.A.Pa., 252
F. 803, 806.
CLYPEUS, or CLIPEUS. In old English law. A
shield; metaphorically one of a noble family.
Clypei prostrate, - noble families extinct. Mat.
Paris, 463.
C/O. A symbol meaning "care of." International Store Co. v. Barnes, Mo.App., 3 S.W.2d 1039,
1041.
CO. A prefix meaning with, in conjunction, joint,
jointly, unitedly, and not separately, e. g., cotrustees, co-executors, co-brokers. Brandenburger
& Marx v. Heimberg, Mun.Ct.N.Y., 34 N.Y.S.2d 935,
938.
Also an abbreviation for "county," (Gilman v. Sheets,
78 Iowa 499, 43 N.W. 299,) and for "company," (Railroad.
Co. v. People, 155 Ill. 299, 40 N.E. 599). It may also indicate a partnership (Jennette v. Coppersmith, 176 N.C. 82,
97 S.E. 54, 55).
COACH. Coach is a generic term. It is a kind
of carriage, and is distinguished from other vehicles, chiefly, as being a covered box, hung on
leathers, with four wheels. Turnpike Co. v. Neil,
9 Ohio 12; Turnpike Co. v. Frink, 15 Pick. (Mass.)
444. A term applied both to vehicles traveling
over roads and upon rails. Bruce Transfer Co. v.
Johnston, 287 N.W. 278, 280, 227 Iowa 50.
COADJUTOR. An assistant, helper, or ally;
particularly a person appointed to assist a bishop
who from age or infirmity is unable to perform
his duty. Olcott v. Gabert, 86 Tex. 121, 23 S.W.
985. Also an overseer, (coadjutor of an executor,)
and one who disseises a person of land not to his
own use, but to that of another.
CO-ADMINISTRATOR. One who is a joint administrator with one or more others.
COADUNATIO. A uniting or combining together
of persons; a conspiracy. 9 Coke, 56.
CO-ADVENTURER. One who takes part with
others in an adventure or in a venture or business undertaking attended with risk. McRee v.
Quitman Oil Co., 16 Ga.App. 12, 84 S.E. 487; Easter Oil Corporation v. Strauss, Tex.Civ.App., 52
S.W.2d 336, 344.
COAL NOTE. A species of promissory note, formerly in use in the port of London, containing the
Unincorporated Members' Club. A society of persons
phrase "value received in coals." By the statute 3
each of whom contributes to the fund out of which the
Geo. II. c. 26, §§ 7, 8, these were to be protected
expenses of conducting the society are paid. Van Pelt v.
and noted as inland bills of exchange. But this
Hilliard, 75 Fla. 792, 78 So. 693. 695, L.R.A.1918E, 639.
was repealed by the statute 47 Geo. III. sess. 2, c.
Unincorporated Proprietary Club. One the property and
funds of which belong to a proprietor who usually con68, § 28.
322
CODE
COALITION. In French law. An unlawful agreement among several persons not to do a thing
except on some conditions agreed upon; particularly, industrial combinations, strikes, etc.; a conspiracy.
CO-ASSIGNEE. One of two or more assignees of
the same subject-matter.
Francisco v. California Steam Na y . Co., 10 Cal.
504; Petition of Canadian Pac. Ry. Co., D.C.Wash.,
278 F. 180, 202.
COAT ARMOR. Heraldic ensigns, introduced by
Richard I. from the Holy Land, where they were
first invented. Originally painted on shields of the
Christian knights who went to the Holy Land during the crusades, to identify them. Wharton.
COAST, v. To slide down hill upon snow or ice
as on a sled; to ride, glide or move by or as by
the force of gravity as on a bicycle without pedaling. Samuelson v. Sherrill, 225 Iowa 421, 280 N.
W. 596, 599.
COBRA-VENOM REACTION. In medical jurisprudence. A method of serum-diagnosis of insanity from hremolysis by injections of venom of
cobras or other serpents.
COAST, n. The edge or margin of a country
bounding on the sea.
COCKBILL. To place the yards of a ship at an
angle with the deck. Pub.St.Mass.1882, p. 1288.
The term includes small islands and reefs naturally connected with the adjacent land, and rising above the surface of the water, but not shoals perpetually covered by
water. U. S. v. Pope, 28 Fed.Cas. 630; Hamilton v. Menifee, 11 Tex. 751.
This word is particularly appropriate to the edge of the
sea, while "shore" may be used of the margins of inland
waters.
COCKET, In English law. A seal belonging to
the custom-house, or rather a scroll of parchment,
sealed and delivered by the officers of the customhouse to merchants, as a warrant that their merchandises are entered; likewise a sort of measure.
Fleta, lib. 2, c. ix.
COAST GUARD. In English law. A body of officers and men raised and equipped by the commissioners of the admiralty for the defense of the
coasts of the realm, and for the more ready manning of the navy in case of war or sudden emergency, as well as for the protection of the revenue
against smugglers. Mozley & Whitley.
COCKPIT. A name which used to be given to the
judicial committee of the privy council, the council-room being built on the old cockpit of. Whitehall
Place.
COAST WATERS. Tide waters navigable from
the ocean by sea-going craft, the term embracing
all waters opening directly or indirectly into the
ocean and navigable by ships coming in from the
ocean of draft as great as that of the larger ships
which traverse the open seas. The Britannia,
153 U.S. 130, 14 S.Ct. 795, 38 L.Ed. 660; The Victory, D.C.Va., 63 F. 636; The Garden City, D.C.
N.Y., 26 F. 773.
COASTER. A vessel plying exclusively between
domestic ports, and usually engaged in domestic
trade; not including pleasure yachts. Belden v.
Chase, 150 U.S. 674, 14 S.Ct. 264, 37 L.Ed. 1218.
COASTING. Sliding down hill or incline on sled
or car or riding bicycle, without working the pedals; Samuelson v. Sherrill, 225 Iowa 421, 280 N.W.
596, 599. Movement of sled or vehicle by momentum due to previously exerted force or force of
gravity. Tyne v. B. F. Goodrich Co., 297 N.Y.S.
425, 428, 252 App.Div. 24; Bryant v. Market St.
Ry. Co., Cal.App., 158 P.2d 18, 22.
COASTING TRADE. In maritime law. Commerce and navigation between different places
along the coast of the United States. Commercial
intercourse between different districts in different
states, different districts in same state, or different
places in same district, on sea-coast or on navigable river. Shannon v. Streckfus Steamers, 131
S.W.2d 833, 836, 279 Ky. 649.
COASTWISE. Vessels "plying coastwise" are
those engaged in domestic trade, or plying between port and port in the United States, San
COCKSETUS. A boatman; a cockswain. Cowell.
COCOTTE. A woman who leads a fast life, one
who gives herself up for money. Also a poached
egg. Rovira v. Boget, 240 N.Y. 314, 148 N.E. 534,
535.
CODE. A collection, compendium or revision of
laws. Chumbley v. People's Bank & Trust Co.,
60 S.W.2d 164, 166,. 166 Tenn. 35. A complete system of positive law, scientifically arranged, and
promulgated by legislative authority. Abbott;
a system of rules. Wilentz v. Crown Laundry
Service, 172 A. 331, 332, 116 N.J.Eq. 40. Any
systematic body of law. Wall v. Close, 14 So.2d
19, 26, 203 La. 345.
A "Code" implies compilation of existing laws, systematic arrangement into chapters, subheads, table of contents,
and index, and revision to harmonize 'conflicts, supply
omissions, and generally clarify and make complete body
of laws designed to regulate completely subjects to which
they relate. Gibson v. State, 214 Ala. 38, 106 So. 231, 35:
The collection of laws *and constitutions made by order
of the Emperor Justinian is distinguished by the appellation of "The Code," by way of eminence. See Code of
Justinian.
A code is to be distinguished from a digest. Digests of
statutes consist of a collection of existing statutes, while
a code is promulgated as one new law covering the whole
field of jurisprudence.
Code civil. The code which embodies the civil
law of France.
It was promulgated in 1804. When Napoleon became
emperor, the name was changed to "Code Napoleon," by
which it is still often designated, though it is now officially styled by its original name of "Code Civil."
Code de commerce. A French code, enacted in 1807, as a
supplement to the Code Napoleon, regulating commercial
transactions, the laws of business, bankruptcies, and the
jurisdiction and procedure of the courts dealing with these
subjects.
Code de procedure civil. That part of the Code Napoleon
which regulates the system of courts, their organization,
323
CODE.
civil procedure, special and extraordinary remedies, and
the execution of judgments.
Code d'instruction criminelle. A French code, enacted In
1808, regulating criminal procedure.
Code Napoleon. See Code Civil.
Code noir. Fr. The black code. A body of laws which
formerly regtilated the institution of slavery in the French
colonies.
Code of Justinian. The Code of Justinian (Codex Justinianeus) was a collection of imperial constitutions, compiled, by order of that emperor, by a commission, and promulgated A. D. 529. It comprised twelve books, and was
the first of the four compilations of law which make up the
Corpus Juris Civilis. This name is often met in a connection indicating that the entire Corpus Juris Civilis is
intended, or, sometimes, the Digest; but its use should be
confined to the Codex.
Code penal. The penal or criminal code of France, enacted
in 1810.
CODIFICATION. Process of collecting and arranging the laws of a country or state into a code,
i. e., into a complete system of positive law, scientifically ordered, and promulgated by legislative
authority.
CODEX. Lat. A code or collection of laws; particularly the Code of Justinian. Also a roll or volume, and a book written on paper or parchment.
COEMPTIO. One of the modes in which marriage
was contracted among the Romans. Adams,
Rom.Ant. 501.
CODEX GREGORIANUS. A collection of imperial constitutions made by Gregorius, a Roman
jurist of the fifth century, about the middle of the
century. It contained the constitutions from Hadrian down to Constantine. Mackeld.Rom.Law, §
63.
CO-EMPTION. The act of purchasing the whole
quantity of any commodity. Wharton.
CODEX HERMOGENIANUS. A collection of imperial constitutions made by Hermogenes, a jurist
of the fifth century. It was nothing more than a
supplement to the Codex Gregorianus, (supra,)
containing the constitutions of Diocletian and
Maximilian. Mackeld.Rom.Law, § 63.
CODEX JUSTINIANEUS. A collection of imperial constitutions, made by a commission of ten
persons appointed by Justinian, A.D. 528.
CODEX REPETITIE PRIELECTIONIS. The new
code of Justinian; or the new edition of the first
or old code, promulgated A.D. 534, being the one
now extant. Mackeld.Rom.Law, § 78. Tayl.Civil
Law, 22,
CODEX THEODOSIANUS. A code compiled by
the emperor Theodosius the younger, A.D. 438. 1
B1.Comm. 81.
It was a collection of all the imperial constitutions then
in force. It was the only body of civil law publicly received as authentic in the western part of Europe till the
twelfth century, the use and authority of the Code of Justinian being during that interval confined to the East. 1
Bl.Comm. 81.
CODEX VETUS. The old code. The first edition
of the Code of Justinian; now lost. Mackeld.
Rom.Law, § 70.
CODICIL. A supplement or an addition to a will';
it may explain, modify, add to, subtract from,
qualify, alter, restrain or revoke provisions in will.
In re Phelps' Will, 232 N.Y.S. 418, 421, 133 Misc.
450; Butler University v. Danner, 114 Ind.App.
236, 50 N.E.2d 928, 932; In re Cazaurang's Estate,
42 Cal.App.2d 796, 110 P.2d 138; Blackford v. Anderson, 226 Iowa 1138, 286 N.W. 735, 743; Adams
v. Foley, 360 Ohio App. 295, 173 N.E. 197, 198.
Usually it does not supersede or totally revoke the will.
Holcomb v. Holcomb, 159 So. 564, 566, 173 Miss. 192; but is
part of the will, Knebelkamp v. Acosta, 114 S.W.2d 737, 739,
272 Ky. 506; Succession of Patterson, 188 La. 635, 177 So.
692, 694; Simmons v. Gunn, 156 Va. 305, 157 S.E. 573, 574 ;
and may confirm, reexecute, revive or republish the will,
Des Portes v. Des Portes, 157 S.C. 407, 154 S.E. 426, 429;
In re Warne's Estate, 302 Pa. 386, 153 A. 688, 690; United
States v. Moore, 197 Ark. 664, 124 S.W.2d 807, 809. It must
be executed with same solemnity as a will. Adams v.
Foley, 36 Ohio App. 295, 173 N.E. 197, 198.
CODICILLUS. In the Roman law. A codicil; an
informal and inferior kind of will, in use among
the Romans.
CO-EQUAL. To be or become equal to; to have
the same quantity, the same value, the same degree or rank, or the like, with; to be commensurate with. State ex rel. Com'rs of Land Office v.
Board of Com'rs of Nowata County, 166 Okl. 78,
25 P.2d 1074, 1077.
COERCE. Compelled to compliance; constrained
to obedience, or submission in a vigorous or forcible manner. Fluharty v. Fluharty, 8 W.W.Harr.
487, 193 A. 838, 840.
COERCION. Compulsion; constraint; compelling by force or arms. Fluharty v. Fluharty, Del.
Super., 8 W.W.Harr. 487, 193 A. 838, 840; Santer
v. Santer, 115 Pa.Super. 7, 174 A. 651, 652.
It may be actual, direct, or positive, as where physical
force is used to compel act against one's will, or implied,
legal or constructive, as where one party is constrained by
subjugation to other to do what his free will would refuse.
Metro-Goldwyn-Mayer Distributing Corporation v. Cocke,
Tex.Civ.App., 56 S.W.2d 489; Fluharty v. Fluharty, 8 W.
W.Harr. 487, 193 A. 838, 840. It may be actual or threatened exercise of power possessed, or supposedly possessed.
In re New York Title & Mortgage Co., 271 N.Y.S. 433, 150
Misc. 827; Weir v. McGrath, D.C.Ohio, 52 F.2d 201, 203.
As used in testamentary law, any pressure by which testator's action is restrained against his free will in the execution of his testament. Max Ams Mach. Co. v. International Ass'n of Machinists, Bridgeport Lodge, No. 30, 92
Conn. 297, 102 A. 706, 709; Hughes v. Leonard, 66 Colo.
500, 181 P. 200, 203, 5 A.L.R. 817.
Duress and coercion are not synonymous though their
meanings often shade into one another. McKenzie-Hague
Co. v. Carbide & Carbon Chemicals Corporation, C.C.A.
Minn., 73 F.2d 78, 85.
CO-EXECUTOR. One who is a joint executor
with one or more others. See, also, Joint Executors.
COFFEE-HOUSE.. A house of entertainment
where guests are supplied with coffee and other
refreshments, and sometimes with lodging. Century Dict. A coffee-house is not an inn. Thompson v. Lacy, 3 Barn. & Ald. 283; Corn. v. Woods,
4 Ky.Law Rep. 262; Potson v. City of Chicago,
222, 136 N.E. 594, 596.
304
324
COGNOVIT
COGNITIONIS
COFFERER OF THE QUEEN'S HOtSEHOLD,
In English law. A principal officer of the royal
establishment, next under the controller, who, in
the countinghouse and elsewhere, had a special
charge and oversight of the other officers, whose
wages he paid.
CAUSIE. In Scotch practice. A
name given to a judgment or decree pronounced
by a court, ascertaining the amount of a debt
against the estate of a deceased landed proprietor,
on cause shown, or after a due investigation.
Bell.
COGITATIONIS P(ENAM NEMO PATITUR. No
one is punished for his thoughts. Dig. 48, 19, 18.
COGNITOR. In the Roman law. An advocate or
defender in a private cause; one who defended
the cause of a person who was present. Calvin.
Lex.Jurid.
COGNAC. A distilled brandy, containing more
than one-half of 1 per centum of alcohol. Benson
v. U. S., C.C.A.Tex., 10 F.2d 309, 310.
COGNATES. (Lat. cognati.) Relations by the
mother's side, or by females. Mackeld.Rom.Law,
§ 144. A common term in Scotch law. Ersk.Inst.
1, 7, 4.
COGNATI. Lat. In the civil law. Cognates; relations by the mother's side. 2 Bl.Comm. 235.
Relations in the line of the mother. Hale, Corn.
Law, c. xi. Relations by or through females.
COGNATIO. Lat.
In the civil law. Cognation. Relationship, or
kindred generally. Dig. 38, 10, 4, 2; Inst. 3, 6,
pr.
Relationship through females, as distinguished from
agn-atio, or relationship through males. Agnatio a patre
sit, cognatio a matre. Inst. 3, 5, 4. See Agnatio.
In Canon law. Consanguinity, as distinguished
from affinity. 4 Reeve, Eng.Law, 56-58. Consanguinity, as including affinity. Id.
COGNATION. In the civil law. Signifies generally the kindred which exists between two per.
sons who are united by ties of blood or family, or
both.
Civil cognation is that which proceeds alone from the
ties of families, as the kindred between the adopted father
and the adopted child.
Mixed cognation is that which unites at the same time
the ties of blood and family, as that which exists between
brothers the issue of the same lawful marriage. Inst. 3.
6; Dig. 38. 10.
Natural cognation is that which is alone formed by ties
of blood; such is the kindred of those who owe their origin
to an illicit connection, either in relation to their ascendants or collaterals.
COGNATUS. Lat. In the civil law. A relation by
the mother's side; a cognate.
A relation, or kinsman, generally.
COGNITIO.
In old English law. The acknowledgment of a
fine; the certificate of such acknowledgment.
In the Roman law. The judicial examination
or hearing of a cause.
COGNITIONES. Ensigns and arms, or a military
coat painted with arms. Mat.Par. 1250.
COGNITIONIBUS MITTENDIS. In English law.
A writ to a justice of the common pleas, or other,
who has power to take a fine, who, having taken
the fine, defers to certify it, commanding him to
certify it. Now abolished. Reg.Orig. 68.
COGNIZABLE. Capable of being tried or examined before a designated tribunal, State v. Wilmot,
51 Idaho 233, 4 P.2d 363, 364; within jurisdiction of
court or power given to court to adjudicate controversy. Samuel Goldwyn, Inc. v. United Artists
Corporation, C.C.A.Del., 113 F.2d 703, 707.
COGNIZANCE. Jurisdiction, or the exercise of
jurisdiction, or power to try and determine causes;
judicial examination of a matter, or power and
authority to make it. Clarion County v. Hospital,
111 Pa. 339, 3 A. 97.*
Judicial notice or knowledge; the judicial hearing of a cause; acknowledgment; confession;
recognition.
Claim of cognizance or of conusance. See
Claim of Cognizance or of Conusance.
Judicial cognizance. See Judicial.
The term also applies to a power granted by the king to
a city or town to hold pleas within it. 11 East, 543; 1 W.
Bla. 454; 3 Bla.Com. 298. An acknowledgment by defendant or deforciant in fine that the land belongs to, or is the
right of, the complainant, 12 Ad. & El. 259. An answer in
replevin, by which defendant acknowledges taking of the
goods and want of title, but justifies on ground that the
taking was by command of one entitled to the property.
Lawes, Pl. 35; 2 Bla.Com. 350. Inhabitants of Sturbridge
v. Winslow. 21 Pick., Mass., 87; Noble v. Holmes, 5 Hill,
N.Y., 194.
COGNIZEE. The party to whom a fine was levied.
2 Bl.Comm. 351.
COGNIZOR. In old conveyancing. The party
levying a fine. 2 Bl.Comm. 350, 351.
COGNOMEN.
In English law. A surname. A name added to
the nomen proper, or name of the individual; a
name descriptive of the family.
In Roman law. A man's family name.
The first name (prcenomen) was the proper name
of the individual; the second (nomen) indicated the gees
or tribe to which he belonged; while the third (cognomen)
denoted his family or house. The agnomen was added on
account of some particular event, as a further distinction.
Vicat. See Cas. temp. Hardw. 286; 6 Co. 65.
COGNOMEN MAJORUM EST EX SANGUINE
TRACTUM, HOC INTRINSECUM EST; AGNOMEN EXTRINSECUM AB EVENTU. 6 Coke, 65.
The cognomen is derived from the blood of ancestors, and is intrinsic; an agnomen arises from
an event, and is extrinsic.
COGNOVIT. Defendant has confessed judgment
and justice of claim, Dyer v. Johnson, Tex.Civ.
App., 19 S.W.2d 421, 422. Written authority of
325
COGNOVIT
debtor and his direction for entry of judgment
against him. Blott v. Blott, 227 Iowa 1108, 290
N.W. 74, 76.
COGNOVIT ACTIONEM. (He has confessed the
action.) A. defendant's written confession of action against him. It is usually upon 'condition;
is supposed to be given in court; and impliedly authorizes plaintiff's attorney to sign judgment and
issue execution. Mallory v. Kirkpatrick, 54 N.J.
Eq. 50, 33 A. 205.
COHABIT or COHABITATION. Dwelling together. Hunt v. Hunt, 172 Miss. 732, 161 So. 119,
121, Johnson v. Commonwealth, 152 Va. 965, 146
S.E. 289, 291. Intercourse together as husband
and wife. State v. Hoffman, 68 N.D. 610, 282 N.W.
407, 409. Living, or abiding or residing together
as man and wife. Jones v. State, 182 Tenn.
60, 184 S.W.2d 167, 169; State v. Barlow, 107 Utah
292, 153 P.2d 647, 651; In re Miller's Estate, 182
Okl. 534, 78 P.2d 819, 827.
It may mean copulation or sexual intercourse, Bracks-
mayer v. Bracksmayer, Sup., 22 N.Y.S.2d 110, 112; as in
divorce statutes, Varnell v. Varnell, 182 S.W.2d 466, 467,
207 Ark. 711; De Berry v. De Berry, 115 W.Va. 604, 177 S.
E. 440, 441; or promiscuous and casual relations, as in
pandering statute, Boykin v. U. S., 130 F.2d 416, 421, 76
U.S.App.D.C. 147. But in some circumstances occasional
acts of sexual intercourse may be insufficient proof. Cutrer
v. State, 154 Miss. 80, 121 So. 106, 107.
COHABITING IN STATE OF ADULTERY OR
FORNICATION. Living together as husband and
wife. Martin v. State, 89 Ind.App. 107, 165 N.E.
763.
Proof must establish at least one act of sexual intercourse, or facts from which such act may reasonably be inferred. Warner v. State, 202 Ind. 479, 175 N.E. 661, 663,
74 A.L.R. 1357.
COHAEREDES UNA PERSONA CENSENTUR,
PROPTER UNITATEM JURIS QUOD HABENT,
Co.Litt. 163. Co-heirs are deemed as one person,
on account of the unity of right which they possess.
COHERES. Lat. In civil and old English law.
A co-heir, or joint heir.
COHAN RULE. Where part of expenditures by
taxpayers are of deductible nature as ordinary
and necessary business expense are unidentifiable,
50% of expenditures are allowed as deduction.
Poletti v. C. I. R., C.A.Mo., 351 F.2d 345, 349.
CO-HEIR. One of several to whom an inheritance
descends.
CO-HEIRESS. A joint heiress. A woman who
has an equal share of an inheritance with another
woman.
COHERER. In wireless telegraphy, the "detector" or "coherer" and "wave responsive device" is
a device by which the electromagnetic waves
cause the indicator to respond. National Electric
Signaling Co. v. Telefunken Wireless Telegraph
Co. of United States, C.C.A.N.Y., 221 F. 629, 631.
COHUAGIUM. A tribute made by those who meet
promiscuously in a market or fair. Du Cange.
COIF. A title given to serjeants at law, who are
called "serjeants of the coif," from the coif they
wear on their heads. The use of this coif at first
was to cover the clerical tonsure, many of the
practicing serjeants being clergymen who had
abandoned their profession. It was a thin linen
cover, gathered together in the form of a skull or
helmet; the material being afterwards changed
into white silk, and the form eventually into the
black patch at the top of the forensic wig, which
is now the , distinguishing mark of the degree of
serjeant at law. (Cowell; Foss, Judg.; 3 Steph.
Comm. 272, note.) Brown.
COIN, v. To fashion pieces of metal into a prescribed shape, weight, and degree of fineness, and
stamp them with prescribed devices, by authority
of government, in order that they may circulate
as money, Legal Tender Cases, 12 Wall. 484, 20 L.
Ed. 287; Thayer v. Hedges, 22 Ind. 301; Hague v.
Powers, 39 Barb. (N.Y.) 466, or to invent words
or phrases.
COIN, n. Pieces of gold, silver, or other metal,
fashioned into a prescribed shape, weight, and degree of fineness, and stamped, by authority of government, with certain marks and devices, and put
into circulation as money at a fixed value, Corn. v.
Gallagher, 16 Gray, Mass., 24p; Latham v. U. S.,
1 Ct.C1. 150; Borie v. Trott, 5 Phila., Pa., 403, or
any metal disc, State v. Kelleher, 127 A. 503, 504,
2 W.W.Harr., Del., 559.
Strictly speaking, coin differs from money, as the species
differs from the genus. Money is any matter, whether
metal, paper, beads, shells, etc., which has currency as a
medium in commerce. Coin is a particular species, always
made of metal, and struck according to a certain process
called "coinage." Wharton.
COINAGE. The process or the function of coining
metallic money; also the great mass of metallic
money in circulation. Meyer v. Roosevelt, 25 How.
Prac., N.Y., 105; U. S. v. Otey, C.C.Or., 31 F. 70.
COINSURANCE. A relative division of risk between the insurer and the insured, dependent upon
the relative amount of the policy and the actual
value of the property insured, and taking effect
only when the actual loss is partial and less than
the amount of the policy; the insurer being liable to the extent of the policy for a loss equal to
or in excess of that amount. Buse v. National
Ben Franklin Ins. Co. of Pittsburg, Pa., 160 N.Y.
S. 566, 568, 96 Misc. 229.
COITUS. Sexual intercourse; carnal copulation;
coition.
COJUDICES. Lat. In old English law. Associate
judges having equality of power with others.
COKE. Partially consumed bituminous coal, from
which the volatile constituents have been burned
away, or partly graphitized carbon, whose fiber
has been affected by escaping and burning gases,
so that it is lighter than coal, although its substance is hard and dense. Mitchell v. Connellsville Central Coke Co., C.C.A.Pa., 231 F. 131, 137;
Otto Coking Co. v. Koppers Co., C.C.A.Del., 258 F.
122, 131.
326
COLLATERAL
COKE'S INSTITUTES. See Institutes.
COLD BLOOD. Used in common parlance to designate a willful, deliberate, and premeditated
homicide. Skeggs v. State, 24 Ala.App. 307, 135
So. 431, 432.
COLD WATER ORDEAL. The trial which was
anciently used for the common sort of people,
who, having a cord tied about them under their
arms, were cast into a river; if they sank to the
bottom until they were drawn up, which was in a
very short time, then were they held guiltless;
but such as did remain upon the water were held
culpable, being, as they said, of the water rejected
and kept up. Wharton.
COLIBERTUS. In feudal law. One who, holding
in free socage, was obliged to do certain services
for the lord. A middle class of tenants between
servile and free, who held their freedom of tenure on condition of performing certain services.
Said to be the same as the conditionales. Cowell.
COLLAPSIBLE CORPORATION. In income tax
law, for purpose of determining whether gain
from the sale or exchange of stock is gain from
the sale or exchange of a capital asset or gain
from the sale or exchange of property which is
not a capital asset, a corporation formed or
availed of principally for the manufacture, construction, or production of property, or for the
holding of stock in a corporation so formed or
availed of, with a view to the sale or exchange
of stock by its shareholders, or a distribution to
its shareholders, prior to the realization by such
corporation of a substantial part of the net income to be derived from such property, and the
realization by such shareholders of gain attributable to such property. 26 U.S.C.A. § 117.
COLLATERAL. By the side; at the side; attached upon the side. Not lineal, but upon a
parallel or diverging line. Additional or auxiliary; supplementary; co-operating; accompanying as a secondary fact, or acting as a secondary
agent; related to, complementary; accompanying
as a co-ordinate, City Investment & Loan Co. v.
Wichita Hardware Co., Tex.Civ.App., 57 S.W.2d
222, 223; collateral security, Pepper v. Beville,
100 Fla. 97, 129 So. 334, 337.
As to collateral "Consanguinity," "Descent," "Estoppel," "Guaranty," "Issue," "Limitation," "Negligence," "Power," "Proceeding," and "Warranty,"
see those titles.
COLLATERAL ACT. In old practice. The name
"collateral act" was given to any act (except the
payment of money) for the performance of which
a bond, recognizance, etc., was given as security.
COLLATERAL or INDIRECT ATTACK. On a
judicial proceeding, an attempt to avoid, defeat,
or evade it, or deny its force and effect, in some
incidental proceeding not provided by law for
the express purpose of attacking it. May v. Casker, 188 Okl. 448, 110 P.2d 287, 290. On a judgment, any proceeding in which the integrity of a
judgment is challenged, except those made in the
action wherein the judgment is rendered or by appeal. Edward Thompson Co. v. Thomas, 49 F.2d
500, 60 App.D.C. 118; In re Peterson's Estate, 12
Wash.2d 686, 123 P.2d 733, 751.
An attempt to i mpeach the judgment by matters dehors
the record in an action other than that in which it was
rendered ; an attempt to avoid, defeat, or evade it, or deny
its force and effect in some incidental proceeding not provided by law for the express purpose of attacking it; any
proceeding which is not instituted for the express purpose
of annulling, correcting, or modifying such decree, or an
objection, incidentally raised in the course of a proceeding,
which presents an issue collateral to the issues made by the
pleadings. Trustees of Somerset Academy v, Picher, C.C.A.
Me., 90 F.2d 741, 743.
COLLATERAL ESTOPPEL. The collateral determination of a question by a court having general jurisdiction Of the subject. Small v. Haskins,
26 Vt. 209.
Conclusiveness of judgment in prior action where subsequent action is upon a different cause of action. Babcock
v. Babcock, 63 Cal.App.2d 94, 146.P.2d 279, 281.
Where complaint in a divorce action alleged that there
was no community property, and divorce decree found that
all allegations of complaint were true and sustained by
evidence, the decree was a conclusive determination that
husband's insurance policies were not community property,
and under the doctrine of "collateral estoppel" divorced
wife was estopped from litigating that issue upon husband's death. Maxwell v. Maxwell, 66 Cal.App.2d 549, 152
P.2d 530, 532.
COLLATERAL FACTS. Such as are outside the
controversy, or are not directly connected with the
principal matter or issue in dispute. Summerour
v. Felker, 102 Ga. 254, 29 S.E. 448; Garner v. State,
76 Miss. 515, 25 So. 363; Jones v. State, 70 Ga.App.
431, 28 S.E.2d 373, 386.
COLLATERAL FRAUD. See Fraud.
COLLATERAL IMPEACHMENT. See Collateral
Attack.
COLLATERAL INHERITANCE TAX. A tax
levied upon the collateral devolution of property
by will or under the intestate law. Perfection
Tire & Rubber Co. v. Kellogg-Mackay Equipment
Co., 194 Iowa 523, 187 N.W. 32, 33.
COLLATERAL KINSMEN. Those who descend
from one and the same common ancestor, but
not from one another.
COLLATERAL LINE. See Descent.
COLLATERAL ANCESTORS. A phrase sometimes used to designate uncles and aunts, and other collateral antecessors, who are not strictly ancestors. Banks v. Walker, 3 Barb.Ch. (N.Y.) 438,
446.
COLLATERAL PROMISE. A promise merely super-added to the promise of another, he remaining
primarily liable. Fairbanks v. Barker, 115 Me. 11,
97 A. 3, 5; Miller v. Davis, 168 Ky. 661, 182 S.W.
839, 840.
COLLATERAL ASSURANCE. That which is
made over and above the principal assurance or
deed itself.
COLLATERAL SECURITY. A security given in
addition to the direct security, and subordinate to
it, intended to guaranty its validity or convertibili-
327
COLLATERAL
ty or insure its performance; so that, if the direct
security fails, the creditor may fall back upon the
collateral security. Butler v. Rockwell, 23 P. 462,
14 Colo. 125; McCormick v. Bank, C.C.Ind., 57 F.
110; Perfection Tire & Rubber Co. v. KelloggMackay Equipment Co.,_194 Iowa 523, 187 N.W.
32, 33; Barbin v. Moore, 85 N.H. 362, 159 A. 409,
415, 83 A.L.R. 62.
Collateral security, in bank phraseology, means some security additional to the personal obligation of the borrower. Shoemaker v. Bank, 2 Abb., U.S., 423, Fed.Cas.No.12,801, or pledge of negotiable paper, shares of corporate
stock, and the like. Turner v. Commercial Savings Bank,
17 Ga.App. 631, 87 S.E. 918; A. H. Averill Machinery Co.
v. Bain, 50 Mont. 512,-148 P. 334.
COLLATERAL UNDERTAKING. "Collateral" and
"original" have become the technical terms whereby to distinguish promises that are within, and
such as are not within, the statute of frauds. Elder v. Warfield, 7 Har. & J., Md., 391; Turner v.
Commercial Savings Bank, 17 Ga.App. 631, 87 S.
E. 918.
COLLATERAL'S ET SOCH. The ancient title of
masters in chancery.
COLLATIO BONORUM. Lat. In the civil law.
The obligation on successors to an inheritance to
return to the common inheritance gifts received
from the ancestor during his lifetime. In re
Farmers' Loan & Trust Co., 163 N.Y.S. 961, 967, 99
Misc. 420; In re Farmers' Loan & Trust Co., 168
N.Y.S. 952, 956, 181 App.Div. 642. A joining together or contribution of goods into a common
fund.
This occurs where a portion of money, advanced by the
father to a son or daughter, is brought into hotchpot, in order to have an equal distributory share of his personal estate at his death. See Collation.
COLLATIO SIGNORUM. In old English law. A
comparison of marks or seals. A mode of testing
the genuineness of a seal, by comparing it with
another known to be genuine. Adams. See Bract.
fol. 389b.
COLLATION. It is the bringing into the estate
of an intestate an estimate of the value of advancements made by the intestate to his or her
children in order that the whole may be divided in
accordance with the statute of descents. In re
Howlett's Estate, 275 Mich. 596, 267 N.W. 743, 744.
It is synonymous with "hotchpot." Moore v.
Freeman, 50 Ohio St. 592, 35 N.E. 502.
Civil Law
The collation of goods is the supposed or real
return to the mass of the succession which an
heir makes of property which he received in advance of his share or otherwise, in order that such
property may be divided together with the other
effects of the succession. Civ.Code La. art. 1227;
Miller v. Miller, 105 La. 257, 29 So. 802; Succession
of Thompson, 9 La.Ann. 96.
The fundamental basis of doctrine is legal presumption
that ancestor intended absolute equality among his descendants in final distribution of his property, that donation by him during his lifetime to any one of them was
merely advancement d'hoirie or advance on donee's hereditary share to establish him in life or for some other use-
ful purpose, and that ancestor Intended to reestablish
equality among his descendants in final partition of his
estate. Le Blanc v. Volker, La.App., 198 So. 398, 401.
Ecclesiastical Law
The act by which the bishop who has the bestowing of a benefice gives it to an incumbent. 2
Bla.Com. 22.
Practice
The comparison of a copy with its original to
ascertain its correctness; or the report of the officer who made the comparison.
COLLATION OF SEALS. When upon the same
label one seal was set on the back or reverse of
the other. Wharton.
COLLATION TO A BENEFICE. In ecclesiastical
law. This occurs where the bishop and patron are
one and the same person, in which case the bishop
cannot present the clergyman to himself, but does,
by the one act of collation or conferring the benefice, the whole that is done in common cases both
by presentation and institution. 2 Bl.Comm. 22.
COLLATIONE FACTA UNI POST MORTEM ALTERIUS. A writ directed to justices of the common pleas, commanding them to issue their writ
to the bishop, for the admission of a clerk in the
place of another presented by the crown, where
there had been a demise of the crown during a
suit; for judgment once passed for the king's
clerk, and he dying before admittance, the king
may bestow his presentation on another. Reg.
Orig. 31.
COLLATIONE HEREMITAGH. In old English
law. A writ whereby the king conferred the keeping of an hermitage upon a clerk. Reg.Orig.
303, 308.
COLLECT. To gather together; to bring scattered things (assets, accounts, articles of property) into one mass or fund; to assemble.
To collect a debt or claim is to obtain payment
or liquidation of it, either by personal solicitation
or legal proceedings. Isler v. National Park Bank
of New York, 239 N.Y. 462, 147 N.E. 66, 68.
COLLECT ON DELIVERY. See C. 0. D.
COLLECTIBLE. Debts, obligations, demands, liabilities that one may be made to pay by means of
legal process. Shanahan v. State, 142 Md. 616,
121 A. 636, 640.
COLLECTION AGENCY. A concern which collects all kinds of claims for others. McCarthy v.
Hughes, 36 R.I. 66, 88 A. 984, 985, Ann.Cas.1915D,
26.
COLLECTION OF ILLEGAL FEES. Collection
by public official of fees in excess of those fixed
by law for certain services. Parker v. Morgan,
48 Utah 405, 160 P. 764, 765.
COLLECTIVE BARGAINING. As contemplated
by National Labor Relations Act is a procedure
looking toward making of collective agreements
328
COLLEGIUM
COLLECTION. Indorsement "for collection." See
For Collection.
between employer arid accredited representatives
of employees concerning wages, hours, and other
conditions of employment, and requires that parties deal with each other with open and fair minds
and sincerely endeavor to overcome obstacles existing between them to the end that employment relations may be stabilized and obstruction to free
flow of commerce prevented. National Labor Relations Act § 8(5), 29 U.S.C.A. § 158(5). Rapid
Roller Co. v. National Labor Relations Board,
C.C.A.7, 126 F.2d 452, 460.
COLLEGA. In the civil law. One invested with
joint authority. A colleague; an associate.
COLLEGATARIUS. Lat. In the civil law. A colegatee. Inst. 2, 20, 8.
COLLEGATARY. A co-legatee; a person who has
a legacy left to him in common with other persons.
The essence of "collective bargaining" is the freedom of
choice of employees in selection of their bargaining representative. National Labor Relations Act § 1 et seq., 29
U.S.C.A. § 151 et seq. National Labor Relations Board v.
American Rolling Mill Co., C.C.A.6, 126 F.2d 38, 41.
"Collective bargaining," within provision of National
Labor Relations Act providing that a refusal to bargain
collectively should be an unfair labor practice, does not
require employer to reach an agreement, but does require
sincere negotiations with representatives of employees.
National Labor Relations Act § 8(5), 29 U.S.C.A. § 158(5).
National Labor Relations Board v. Biles Coleman Lumber
Co., C.C.A.9, 98 F.2d 18, 22.
COLLECTIVE BARGAINING AGREEMENT.
Agreement between an employer and a labor union
which regulates terms and conditions of employment. Railway Mail Ass'n v. Murphy, 44 N.Y.S.
2d 601, 605, 608, 180 Misc. 868; McNeil v. Peoples
Life Ins. Co., D.C.Mun.App., 43 A.2d 293, 294.
See, also, "Collective Labor Agreement" and
"Trade Agreement."
COLLECTIVE LABOR AGREEMENT. Also called
"trade agreement". Bargaining agreement as to
wages and conditions of work entered into by
groups of employees, usually organized into a
brotherhood or union on one side and groups of
employers or corporations on the other side. Brisbin v. E. L. Oliver Lodge No. 335 of Brotherhood
of Railway Clerks, 134 Neb. 517, 279 N.W. 277, 283;
Rentschler v. Missouri Pac. R. Co., 126 Neb. 493,
253 N.W. 694, 696, 95 A.L.R. 1.
It becomes a binding contract when it is adopted into
and made a part of the individual contract of each employee, and a breach of its terms will give rise to a cause
of action by either party.
COLLECTOR. One appointed to receive taxes or
other impositions: as, collector of taxes, collector
of rhilitia fines, etc. A person appointed by a private person to collect the credits due him.
COLLECTOR OF DECEDENT'S ESTATE. A person temporarily appointed by the probate court
to collect rents, assets, interest, bills receivable,
etc., of a decedent's estate, and act for the estate
in all financial matters requiring immediate settlement. Such collector is usually appointed when
there is protracted litigation as to the probate of
the will, or as to the person to take out administration, and his duties cease as soon as an executor or administrator is qualified.
COLLECTOR OF THE CUSTOMS. An officer of
the United States, appointed for the term of four
years. Act May 15, 1820, § 1; 3 Story, U.S.Laws,
1790 (19 U.S.C.A. § 5). Rev.Stat.U.S. § 2613 (19
U.S.C.A. § 5). His general duties are defined in
§ 2621 (19 U.S.C.A. § 33).
COLLEGE. An organized assembly or collection
of persons, established by law, and empowered to
co-operate for the performance of some special
function or for the promotion of some common object, which may be educational, political, ecclesiastical, or scientific in its character.
The assemblage of the cardinals at Rome is
called a "college." So, in the United States, the
body of presidential electors is called the "electoral college."
In the most common use of the word, it designates an institution of learning (usually incorporated) which offers instruction in the liberal arts
and humanities and in scientific branches, but not
in the technical arts or those studies preparatory
to admission to the professions. Corn. v. Banks,
198 Pa. 397, 48 A. 277; Chegaray v. New York, 13
N.Y. 229. Also applied to all kinds of institutions
from universities, or departments thereof to "business colleges," "barber colleges," etc. State v.
Erickson, 75 Mont. 429, 244 P. 287, 291.
In England, it is a civil corporation, company
or society of men, having certain privileges, and
endowed with certain revenues, founded by royal
license. An assemblage of several of these colleges is called a "university." Wharton.
COLLEGIA. In the civil law. The guild of a
trade.
COLLEGIALITER. In a corporate capacity. 2
Kent, Comm. 296.
COLLEGIATE CHURCH. In English ecclesiastical law. A church built and endowed for a society or body corporate of a dean or other president,
and secular priests, as canons or prebendaries
in the said church; such as the churches of Westminster, Windsor, and others. Cowell.
COLLEGIUM. Lat. In the civil law. A word
having various meanings ; e. g., an assembly, society, or company; a body of bishops; an army;
a class of men. But the principal idea of the
word was that of an association of individuals of
the same rank and station, or united for the pursuit of some business or enterprise. Sometimes, a
corporation, as in the maxim "tres faciunt collegium" (1 Bl.Comm. 469), though the more usual
and proper designation of a corporation was "universitas."
COLLEGIUM AMMIRALITATIS. The college or
society of the admiralty.
329
COLLEGIUM
COLLEGIUM EST SOCIETAS PLURIUM CORPORUM SIMUL HABITANTIUM. Jenk.Cent. 229.
A college is a society of several persons dwelling
together.
COLLEGIUM ILLICITUM. One which abused its
right, or assembled for any other purpose than
that expressed in its charter.
COLLEGIUM- LICITUM. An assemblage or society of men united for some useful purpose or
business, with power to act like a single individual.
2 Kent, Comm. 269.
COLLIDE. To strike or dash against; to come
into collision; to clash. Collins v. Leahy, Mo.
App., 102 S.W.2d 801, 809.
COLLIERY. This term is sufficiently wide to include all contiguous and connected veins and
seams of coal which are worked as one concern,
without regard to the closes or pieces of ground
under which they are carried, and apparently also
the engines and machinery in such contiguous and
connected veins. MacSwin. Mines, 25. Carey v.
Bright, 58 Pa. 85.
It includes every operation and work, both under and
above ground, used or to be used to mine and prepare coal.
Moore v. Stevens Coal Co., 315 Pa. 564, 173 A. 661, 662.
COLLIGENDUM BONA DEFUNCTI. See Ad
Colligendum, etc.
COLLISION. Striking together of two objects,
-one of which may be stationary. Davilla v. Liberty Life Ins. Co., 114 Cal.App. 308, 299 P. 831,
834. Act or instance of colliding; state of having
collided. Guenther v. American Indem. Co., 246
Wis. 478, 17 N.W.2d 570, 571.
Maritime Law
The act of ships or vessels striking together.
In its strict sense, collision means the impact of two
vessels both moving, and is distinguished from allision,
which designates the striking of a moving vessel against
one that is stationary. But collision is used in a broad
sense, to include allision, and perhaps other species of
encounters between vessels, or a vessel and other floating,
though non-navigable, objects. Wright v. Brown, 4 Ind.
97, 58 Am.Dec. 622; London Assur. Co. v. Companhia De
Moagens, 68 F. 258, 15 C.C.A. 379; Lehigh & Wilkes-Barre
Coal Co. v. Globe & Rutgers Fire Ins. Co., C.C.A.N.Y., 6
F.2d 736, 738, 43 A.L.R. 215.
The term is not inapplicable to cases where a stationary
vessel is struck by one under way, strictly termed "allision" ; or where one vessel is brought into contact with
another by swinging at anchor. And even an injury
received by a vessel at her moorings, in consequence of
being violently rubbed or pressed against by a second vessel lying alongside of her, in consequence of a collision
against such second vessel by a third one under way, may
be compensated for, under the general head of "collision,"
as well as an injury which is the direct result of a "blow,"
properly so called. The Money, Abb.Adm. 73, Fed.Cas.No.
9,894.
Automobile Insurance Law
The term denotes the act of colliding; striking
together; violent contact. Long v. Royal ins.
Co., 180 Wash. 360, 40 P.2d 132, 133, 105 A.L.R.
1423. The term implies an impact or sudden contact of a moving body with an obstruction in its
line of motion, whether both bodies are in motion
or one stationary and the other, no matter which,
in motion. St. Paul Fire & Marine Ins. Co. v.
American Compounding Co., 211 Ala. 593, 100 So.
904, 906, 35 A.L.R. 1018; Rea v. Motors Ins. Corporation, 48 N.M. 9, 144 P.2d 676, 678, 679, 681.
But liability depends on what the automobile collides
with and, of course, the cause of the collision and the
terms of the policy. Liability has been sustained where
collision was with embankment, Pred v. Employers' Indemnity Corporation, 112 Neb. 161, 198 N.W. 864, 866, 35
A.L.R. 1003; and also denied, Fox v. Interstate Exch., 182
Wis. 28, 195 N.W. 842. Liability has also been denied
where collision was with earth, after automobile had gone
over an embankment, Continental Casualty Co. v. Paul.
209 Ala. 166, 95 So. 814, 815, 30 A.L.R. 802 (contra Polstein
v. Pacific Fire Ins. Co., 203 N.Y.S. 362, 122 Misc. 194) ;
and with stump after skidding off the road, Ploe v. International Indemnity Co., 128 Wash. 480, 223 P. 327, 328, 35
A.L.R. 999. Liability has been sustained for damages
caused by collision with sides of rut, Wood v. Southern
Casualty Co., Tex.Civ.App., 270 S.W. 1055, 1057; and both
sustained and denied where body or frame of automobile
collided with the road through the breaking of an axle or
other cause, Young v. New Jersey Ins. Co., D.C.Mont., 284
F. 492, 493 ; Great American Mut. Indemnity Co. v. Jones.
111 Ohio St. 84, 144 N.E. 596, 35 A.L.R. 1023; Great Eastern Casualty Co. v. Solinsky, 150 Tenn. 206, 263 S.W. 71,
74, 35 A.L.R. 1007. Liability has been sustained where
elevator containing automobile fell, Freiberger v. Globe
Indemnity Co., 199 N.Y.S. 310, 311, 205 App.Div. 116;
National Fire Ins. 'Co. of Hartford, Conn., v. Elliott, C.C.A.
Mo., 7 F.2d 522, 527, 42 A.L.R. 1121 ; where standing car
ran over precipice, St. Paul Fire & Marine Ins. Co. v.
American Compounding Co., 211 Ala. 593, 100 So. 904,
906, 35 A.L.R. 1018; where scoop of steamshovel loading
autotruck fell on latter, Universal Service Co. v. American
Ins. Co., 213 Mich. 523, 181 N.W. 1007, 14 A.L.R. 183; but
denied where second floor of garage fell upon automobile,
O'Leary v. St. Paul Fire & Marine Ins. Co., Tex.Civ.App.,
196 S.W. 575. This subject is fully discussed in Blashfield,
Cyc. of Automobile Law and Prac., Perm.Ed., §§ 3691-3698.
COLLISION CLAUSE. An additional provision
for insurance, on the margin of the policy, covering the contingency of a collision of the insured
vessel with another vessel and the liability of the
insured for the injury to such other vessel. Fireman's Fund Ins. Co. v. Globe Na y . Co., C.C.A.
Wash., 236 F. 618, 631. Also known as "running
down" clause.
COLLISTRIGIUM. The pillory.
COLLOBIUM. A hood or covering for the shoulders, formerly worn by serjeants at law.
COLLOCATION. In French law. The arrangement or marshaling of the creditors of an estate
in the order in which they are to be paid according to law. Merl. Repert.
COLLOQUIUM. One of the usual parts of the
declaration in an action for slander. It is a general averment that the words complained of were
spoken "of and concerning the plaintiff," or concerning the extrinsic matters alleged in the inducement, and its office is to connect the whole
publication with the previous statement. Van
Vechten v. Hopkins, 5 Johns., N.Y., 220, 4 Am.Dec.
339; Lukehart v. Byerly, 53 Pa. 421; Express Pub.
Co. v. Wilkins, Tex.Civ.App., 218 S.W. 614, 616;
Kee v. Armstrong, Byrd & Co., 75 Okl. 84, 182 P.
494, 498, 5 A.L.R. 1349.
An averment that the words in question are spoken of
or concerning some usage, report, or fact which gives to
words otherwise indifferent the peculiar defamatory meaning assigned to them. Carter v. Andrews, 16 Pick.,
Mass., 6; Moore v. Leverett, Tex.Civ.App., 33 S.W.2d 838,
842.
330
COLOR
Colonial Office
COLLUSION. Is an agreement between two or
more persons to defraud a person of his rights by
the forms of law, or to obtain an object forbidden
by law. It implies the existence of fraud of some
kind, the employment of fraudulent means, or of
lawful means for the accomplishment of an unlawful purpose. May Hosiery Mills v. United States
District Court in and for Dist. of Montana, C.C.A.
Mont., 64 F.2d 450, 454.
In the English government, this is the department of state through which the sovereign appoints colonial governors, etc., and communicates
with them. Until the year 1854, the secretary for
the colonies was also secretary for war.
Colonial Laws
A secret combination, conspiracy, or concert of action
between two or more persons for fraudulent or deceitful
purpose. W. E. Bowen Improvement Co. v. Van Half ten,
209 Mo.App. 629, 238 S.W. 147, 149; Daly v. Haight, 156
N.Y.S. 538, 541, 170 App.Div. 469.
A secret arrangement between two or more persons,
whose interests are apparently conflicting, to make use of
the forms and proceedings of law in order to defraud a
third person, or to obtain that which justice would not
give them, by deceiving a court or its officers. Railroad
Co. v. Gay, 86 Tex. 571, 26 S. W. 599, 25 L.R.A. 52 ; Balch
v. Beach, 119 Wis. 77, 95 N.W. 132. A secret agreement
between two persons that one should institute a suit
against the other, in order to obtain the decision of a
judicial tribunal for some sinister purpose. In re Insull
Utility Investments, D.C.I11., 6 F.Supp. 653, 655.
In divorce proceedings, collusion is an agreement
between husband and wife that one of them shall commit,
or appear to have committed, or be represented in court
as having committed, acts constituting a cause of divorce,
for the purpose of enabling the other to obtain a divorce.
But it also means connivance or conspiracy in initiating or
prosecuting the suit, as where there is a compact for
mutual aid in carrying it through to a decree. Beard v.
Beard, 65 Cal. 354, 4 P. 229; Pohlman v. Pohlman, 60
N.J.Eq. 28, 46 A. 658; McCauley v. McCauley, 88 N.J.Eq.
392, 103 A. 20, 23. Rosenzweig v. Rosenzweig, 246 N.Y.S.
231, 233, 231 App.Div. 13.
COLLUSIVE ACTION. An action not founded
upon an actual controversy between the parties to
it, but brought for purpose of securing a determination of a point of law for the gratification
of curiosity or to settle rights of third persons
not parties. It will not be entertained. City and
County of San Francisco v. Boyd, 22 Ca1.2d 685,
140 P.2d 666, 669, 670.
COLLYBISTA. In the civil law. A money-changer; a dealer in money.
COLLYBUM. In the civil law. Exchange.
COLNE. In Saxon and old English law. An account or calculation.
COLONUS. In old European law. A husbandman; an inferior tenant employed in cultivating
the lord's land. A term of Roman origin, corresponding with the Saxon ceorl. 1 Spence, Ch.
51.
COLONY. A dependent political community, consisting of a number of citizens of the same country
who have emigrated therefrom to people another,
and remain subject to the mother-country. U. S.
v. The Nancy, 3 Wash.C.C. 287, Fed.Cas.No.15,854.
A settlement in a foreign country possessed
and cultivated, either wholly or partially, by immigrants and their descendants, who have a political connection with and subordination to the mother-country, whence they emigrated. In other
words, it is a place peopled from some more ancient city or country. Wharton.
In America, this term designates the body of
law in force in the thirteen original colonies before the Declaration of Independence. In England, the term signifies the laws enacted by Canada and the other present British colonies.
COLOR. An appearance, semblance, or simulacrum, as distinguished from that which is real.
A prima facie or apparent right. Hence, a deceptive appearance; a plausible, assumed exterior,
concealing a lack of reality; a disguise or pretext. Railroad Co. v. Allfree, 64 Iowa 500, 20 N.W.
779; Broughton v. Haywood, 61 N.C. 383; Wilt v.
Bueter, 186 Ind. 98, 111 N.E. 926, 929.
In pleading. Ground of action admitted to subsist in the opposite party by the pleading of one of
the parties to an action, which is so set out as to
be apparently valid, but which is in reality legally
insufficient.
A term of the ancient rhetoricians, and early adopted
into the language of pleading. It was an apparent or prima
facie right; and the meaning of the rule that pleadings in
confession and avoidance should give color was that they
should confess the matter adversely alleged, to such an
extent, at least, as to admit some apparent right in the
opposite party, which required to be encountered and
avoided by the allegation of new matter. Color was either
express, i. e., inserted in the pleading, or implied, which
was naturally inherent in the structure of the pleading.
Steph.P1. 233; Merten v. Bank, 5 Okl. 585, 49 P. 913.
Wheeler v. Nickels, 168 Or. 604, 126 P.2d 32, 36.
The word also means the dark color of the skin
showing the presence of negro blood; and hence
it is equivalent to African descent or parentage.
Johnson v. Board of Education of Wilson County,
166 N.C. 468, 82 S.E. 832, 834, L.R.A.1915A, 828.
COLOR OF AUTHORITY. That semblance or presumption of authority sustaining the acts of a public officer which is derived from his apparent title
to the office or from a writ or other process in his
hands apparently valid and regular. State v.
Oates, 86 Wis. 634, 57 N.W. 296, 39 Am.St.Rep. 912.
COLOR OF LAW. The appearance or semblance,
without the substance, of legal right. State v.
Brechler, 185 Wis. 599, 202 N.W. 144, 148.
COLOR OF OFFICE. An act unjustly done by
the countenance of an office, being grounded upon
corruption, to which the , office is as a shadow and
color. Plow. 64. Day v. National Bond & Investment Co., Mo.App., 99 S.W.2d 117, 119.
A claim or assumption of right to do an act by
virtue of an office, made by a person who is legally
destitute of any such right. Feller v. Gates, 40 Or.
543, 67 P. 416, 56 L.R.A. 630, 91 Am.St.Rep. 492;
Citizens' Bank of Colquitt v. American Surety
Co. of New York, 174 Ga. 852, 164 S.E. 817; Pontiac Trust Co. v. Newell, 266 Mich. 490, 254 N.W.
178, 181.
331
COLOR
Such person must be at least officer de factor. Burrall
v. Acker, 23 Wend., N.Y., 606, 35 Am.Dec. 582; Day v.
National Bond & Investment Co., Mo.App., 99 S.W.2d 117,
119. See, also, Colore Officii.
ter of law, there Is no adverseness. In re if tim,
C.C.A.Wis., 202 F. 883, 884; In re Western Rope
& Mfg. Co., C.C.A.Okl., 298 F. 926, 927.
COLOR OF TITLE. The appearance, semblance,
or simulacrum of title. Also termed "apparent
title." Any fact, extraneous to the act or mere
will of the claimant, which has the appearance, on
its face, of supporting his claim of a present title
to land, but which, for some defect, in reality falls
short of establishing it. Howth v. Farrar, C.C.A.
Tex., 94 F.2d 654, 658; Saltmarsh v. Crommelin,
24 Ala. 352.
, Anything in writing purporting to convey title to the
COLORABLE IMITATION. In the law of trademarks, this phrase denotes such a close or ingenious imitation as to be calculated to deceive ordinary persons.
land, which defines the extent of the claim, it being immaterial how defective or imperfect the writing may be, so
that it is a sign, semblance, or color of title. Theisen v.
Qualley, 42 S.D. 367, 175 N.W. 556, 557. A title that is
i mperfect, but not so obviously so that it would be apparent to one not skilled in the law. Ipock v. Gaskins, 161
N.C. 673, 77 S.E. 843, 847.
A writing upon its face professing to pass title but which
does not, either through want of title in the grantor or a
defective mode of conveyance. Philbin v. Carr, 75 Ind.App.
560, 129 N.E. 19, 24; Glass v. Lynchburg Shoe Co., 212 N.C.
70, 192 S.E. 899.
That which the law considers prima facie a good title,
but which, by reason of some defect, not appearing on its
face, does not in fact amount to title. An absolute nullity,
as a void deed, judgment, etc., will not constitute color of
title. Causey v. White, 143 Ga. 7, 84 S.E. 58; Stearns Coal
& Lumber Co. v. Boyatt, 168 Ky. 111, 181 S. W. 962, 964.
That which is title in appearance but not in reality. Fftschen Bros. Commercial Co. v. Noyes' Estate, 76 Mont. 175,
246 P. 773, 779; Boland v. Heck, 179 Okl. 403, 65 P.2d 1213,
1215.
"Any instrument having a grantor and grantee, and containing a description of the lands intended to be conveyed,
and apt words for their conveyance, gives color of title to
the lands described. Such an instrument purports to be a
conveyance of the title, and because it does not, for some
reason, have that effect, it passes only color or the semblance of a title." Brooks v. Bruyn, 35 Ill. 392.
"Color of title" is not synonymous with "claim of title."
To constitute "color of title" there must be a paper title
to give color to the adverse possession, whereas, a "claim
of title" may be shown wholly by parol. Walton v. Sikes,
165 Ga. 422, 141 S.E. 188, 190.
COLORABLE. That which has or gives color.
That which is in appearance only, and not in reality, what it purports to be. Counterfeit, feigned,
having the appearance of truth. Ellis v. Jones, 73
Colo. 516, 216 P. 257, 258.
COLORABLE TRANSACTION. One presenting
an appearance which does not correspond with
the reality, and, ordinarily, an appearance intended to conceal or to deceive. Osborn v. Osborn, 102
Kan. 890, 172 P. 23, 24.
COLORE OFFICII. Lat. By color of office. Officer's acts unauthorized by officer's position,
though done in form that purports that acts
are done by reason of official duty and by virtue
of office. Richards v. American Surety Co. of
New York, 48 Ga.App. 102, 171 S.E. 924. See,
also, Color of Office.
COLORED. By common usage in America, this
term, in such phrases as "colored persons," "the
colored race," "colored men," and the like, is used
to designate negroes or persons of the African
race, including all persons of mixed blood descended from negro ancestry. Collins v. Oklahoma
State Hospital, 76 Okl. 229, 184 P. 946, 949, 7 A.L.R.
895; Theophanis v. Theophanis, 244 Ky. 689, 51
S.W.2d 957.
But where a state Constitution provided for separate
schools for the white and colored races, the term "white
race" was held to be limited to the Caucasian race, and the
term "colored races" to embrace all other races. Rice v.
Gong Lum, 139 Miss. 760, 104 So. 105, 107.
It has also been held that there is no legal technical
signification to the phrase "colored person" which the
courts are bound judicially to know. Pauska v. Daus, 31
Tex. 74.
COLPICES. Young poles, which, being cut down,
are made levers or lifters. Blount.
COLPINDACII. In old Scotch law. A young
beast or cow, of the age of one or two years; in
later times called a "cowdasfi."
COLORABLE ALTERATION. One which makes
no real or substantial change, but is introduced
only as a subterfuge or means of evading the patent or copyright law.
COLORABLE CAUSE OR INVOCATION OF JURISDICTION. With reference to actions for malicious prosecution, a "colorable cause or invocation of jurisdiction" means that a person, apparently qualified, has appeared before a justice and
made a complaint under oath and in writing, stating some facts which in connection with other
facts constitute a criminal offense or bear a similitude thereto. Hotel Supply Co. v. Reid, 16 Ala.
App. 563, 80 So. 137, 138.
COLORABLE CLAIM. In bankruptcy law, a claim
made by one holding the property as an agent or
bailee of the bankrupt; a claim in which as a mat-
COLORABLE PLEADING. The practice of giving
color in pleading.
COLT. An animal of the horse species, whether
male or female, not more than four years old.
Russ. & R. 416; Mallory v. Berry, 16 Kan. 295;
Pullen v. State, 11 Tex.App. 91.
COM. An abbreviation for "company," exactly
equivalent to "Co." Keith v. Sturges, 51 Ill. 142.
COMBARONES. In old English law. Fellowbarons; fellow-citizens ;—the citizens or freemen
of the Cinque Ports being anciently called "barons;" the term "combarones" is used in this sense
in a grant of Henry III. to the barons of the port
of Fevresham. Cowell.
COMBAT. A forcible encounter between two or
more persons; a battle; a duel. Trial by battle.
Mutual Combat
One into which both the parties enter willingly
or voluntarily; it implies a common intent to
332
COMITATUS
COMBUSTIO DOMORUM. Houseburning; arson.
4 Bl.Comm. 272.
fight, but not necessarily an exchange of blows.
Aldridge v. State, 59 Miss. 250; Tate v. State, 46
Ga. 158; State v. Moss, 24 N.M. 59, 172 P. 199;
Findley v. State, 125 Ga. 583, 54 S.E. 106.
COMBUSTIO PECUNI2E. Burning of money;
the ancient method of testing mixed and corrupt
money, paid into the exchequer, by melting it
down.
COMBATERRIE. A valley or piece of low ground
between two hills. Kennett, Gloss.
COMBE. A small or narrow valley.
COMBINATION. A conspiracy, or confederation
of men for unlawful or violent deeds. See Deupree v. Thornton, 97 Neb. 812, 151 N.W. 305, 307,
L.R.A.1917C, 65.
In patent law. A union of different elements.
A patent may be taken out for a new combination of existing machines. Stevenson Co. v. McFassell, C.C.A.Pa., 90 F. 707, 33 C.C.A. 249; Moore
v. Schaw, C.C.Cal., 118 F. 602; Moody v. Fiske, 2
Mas. 112, Fed.Cas.No.9,745.
In patent law. A composition of old or new
elements, and it is patentable, if it produces new
and useful results, though all its constituents were
well known and in common use before it was
made, provided the results are a product of the
combination, and not a mere aggregate of several
results. U. S. Industrial Chemical Co. v. Theroz
Co., C.C.A.Md., 25 F.2d 387, 391.
The distinction between a "combination" and an "aggregation" lies in the presence or absence of mutuality of
action; a "combination" essentially requiring that there
be some joint operation performed by its elements, producing a result due to their joint and cooperating action,
while in an "aggregation" there is a mere adding together
of separate contributions, each operating independently
of the other. Ball v. Coker, C.C.A.S.C., 210 F. 278, 282;
Mead Morrision Mfg. Co. v. Exeter Mach. Works, D.C.Pa.,
215 F. 731.
COMBINATION IN RESTRAINT OF TRADE. A
trust, pool, or other association of two' or more
individuals or corporations having for its object to
monopolize the manufacture or traffic in a particular commodity, to regulate or control the output,
restrict the sale, establish and maintain the price,
stifle or exclude competition, or otherwise to interfere with the normal course of trade under
conditions of free competition. Northern Securities Co. v. U. S., 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed.
679; U. S. v. Knight Co., 156 U.S. 1, 15 S.Ct. 249,
39 L.Ed. 325.
COMBINED CARBON. As used in the metallurgy
of iron and steel, carbon in union with some one or
more metallic constituents in the iron alloy. Pittsburgh Iron & Steel Foundries Co. v. Seaman-Sleeth
Co., C.C.A.Pa., 248 F. 705, 707.
COMBING WOOL. A long-stapled wool, usually
combed, employed in the manufacture of worsteds.
Stone & Downer Co. v. U. S., 12 Ct.Cust.App. 62,
63; U. S. v. Stone & Downer Co., 12 Ct.Cust.App.
557. See Clothing Wool.
COMBUSTIBLE. Capable of undergoing combustion; apt to catch fire; inflammable. Hebrlee v.
Hawley, 112 Kan. 398, 211 P. 129, 131.
COMBUSTIO. Burning. In old English law. The
punishment inflicted upon apostates.
COME. To present oneself; to appear in court.
In modern practice, though such presence may be
constructive only, the word is still used to indicate
participation in the proceedings. Horner v.
O'Laughlin, 29 Md. 472. Melfi v. Barney, R.I., 121
A. 67, 68.
Thus, a pleading may begin, "Now comes the defendant," etc. In case of a default, the technical language of
the record is that the party "comes not, but makes
default."
COMES, v. A word used in a pleading to indicate
the defendant's presence in court. See Come.
COMES, n. Lat. A follower, companion, or attendant; a count or earl.
COMES AND DEFENDS. This phrase, anciently
used in the language of pleading, and still surviving in some jurisdictions, occurs at the commencement of a defendant's plea or demurrer; and of
its two verbs the former signifies that he appears
in court, the latter that he defends the action.
COMFORT. Benefit, consolation, contentment,
ease, enjoyment, happiness, pleasure, or satisfaction. National Surety Co. v. Jarrett, 95 W.Va. 420,
121 S.E. 291.
COMFORTABLE SPEED. As applied to railway
trains, is a speed which has been developed by experience and observation to mean that speed at
which you can run a train around a curve, and
the passengers will not feel any uncomfortable or
unpleasant lurch in going around the curve. Chesapeake & 0. Ry. Co. v. Tanner, 165 Va. 406, 182
S .E. 239.
COMINUS. Lat. Immediately; hand-to-hand; in
personal contact.
COMITAS. Lat. Courtesy; civility; comity. An
indulgence or favor granted another nation, as a
mere matter of indulgence, without any claim
of right made. Comitas inter communitates; or
comitas inter gentes; comity between communities or nations; comity of nations. 2 Kent, Comm.
457.
COMITATU COMMISSO. A writ or commission,
whereby a sheriff is authorized to enter upon the
charges of a county. Reg.Orig. 295.
COMITATU ET CASTRO COMMISSO. A writ
by which the charge of a county, together with the
keeping of a castle, is committed to the sheriff.
COMITATUS. In old English law. A county or
shire; the body of a county. The territorial jurisdiction of a comes, i. e., count or earl. 1 Bla.
Comm. 116. An earldom. 1 Ld.Raym. 13. The
county court, a court of great antiquity and of
great dignity in early times. 1 Spence, Eq.Jur. 42,
333
COMITES
66. Also, the retinue or train of a prince or high
governmental official. Spelman. The retinue
which accompanied a Roman proconsul to his
province. Du Cange. The personal following of
professional warriors. Taylor, Jurispr. 216.
COMITES. Counts or earls. Attendants or followers. Persons composing the retinue of a high
functionary.
Persons who are attached to the suite of a public minister. As to their privileges, see Respublica
v. De Longchamps, 1 Da11. (Pa.) 117, 1 L.Ed. 59;
U. S. v. Benner, Baldw. 240, Fed.Cas.No.14,568.
COMITES PALEYS. Counts or earls palatine;
those who had the government of a county palatine.
COMITIA. In Roman law. An assembly, either
(1) of the Roman curiae, in which case it was
called the "comitia curiata vel calata"; or (2) of
the Roman centuries, in which case it was called
the "comitia centuriata" (called also comitia majora) ; or (3) of the Roman tribes, in which case
it was called the "comitia tributa." Only patricians were members of the first comitia, and only
plebians of the last; but the comitia centuriata
comprised the entire populace, patricians and plebians both, and was the great legislative assembly
passing the leges, properly so called, as the senate
passed the senatus consulta, and the comitia tributa passed the plebiscita. Under the Lex Hortensia, 287 B.C., the plebiscitum acquired the force of
a lex. Brown.
COMITISSA. In old English law. A countess; an
earl's wife.
COMITIVA. In old English law. The dignity and
office of a comes (count or earl) ; the same with
what was afterwards called "comitatus."
Also a companion or fellow-traveler; a troop
or company of robbers. Jacob.
COMITY. Courtesy; complaisance; respect; a
willingness to grant a privilege, not as a matter
of right, but out of deference and good will. Dow
v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1088, L.R.A.
1915D, 754; Cox v. Terminal R. Ass'n of St. Louis,
331 Mo. 910, 55 S.W.2d 685.
operation of foreign laws, courts of justice presume the
tacit adoption of them by their own government, unless
repugnant to its policy, or prejudicial to its interests. It
,is not the comity of the courts, but the comity of the
nation, which is administered and ascertained in the same
way, and guided by the same reasoning, by which all other
principles of the municipal law are ascertained and guided.
The recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another
nation, having due regard both to international duty and
convenience and to the rights of its own citizens or of
other persons who are under the protection of its laws.
State ex rel. National Surety Corporation v. Price, 129 Neb.
433, 261 N.W. 894.
"The use of the word 'comity' as expressing the basis of
jurisdiction has been criticized. It is, however, a mere
question of definition. The principles lying behind the
word are recognized. * * * The truth remains that
jurisdiction depends upon the law of the forum, and this
law in turn depends upon the public policy disclosed by
the acts and declarations of the political departments of
the government." Russian Socialist Federated Soviet
Republic v. Cibrario, 235 N.Y. 255, 139 N.E. 259, 260.
Judicial Comity
'
The principle in accordance with which the
courts of one state or jurisdiction will give effect
to the laws and judicial decisions of another, not
as a matter of obligation, but out of deference
and respect. Franzen v. Zimmer, 35 N.Y.S. 612,
90 Hun 103; Stowp v. Bank, C.C.Me., 92 F. 96;
Strawn Mercantile Co. v. First Nat. Bank, Tex.
Civ.App., 279 S.W. 473, 474; Bobala v. Bobala, 68
Ohio App. 63, 33 N.E.2d 845, 849.
There is no statute or common-law rule by which one
court is bound to abide by the decisions of another court
of equal rank. It does so simply for what may be called
comity among judges. There is no common law or statutory rule to oblige a court to bow to its own decisions; it
does so on the ground of judicial comity. (1884) 9 P.D.
98, per Brett, M. R.
Of such a use of the word, however, Dicey says : "The
term 'comity' * * * is open to the charge of implying
that the judge, when he applies foreign law to a particular
case, does so as a matter of caprice or favor."
Comity is not a rule of law, but one of practice, convenience and expediency. It is something more than mere
courtesy, which implies only deference to the opinion of
others, since it has a substantial value in securing uniformity of decision, and discouraging repeated litigation
of the same question. But its obligation is not imperative.
Comity persuades; but it does not command. It declares
not how a case shall be decided, but how it may with propriety be decided. Mast, Foos & Co. v. Mfg. Co., 177 U.S.
485, 488, 20 S.Ct. 708, 44 L.Ed. 856; National Electric Signaling Co. v. Telefunken Wireless Telegraph Co. of United
States, C.C.A.N.Y., 221 F. 629, 632; Lauer V. Freudenthal,
96 Wash. 394, 165 P. 98, 99.
Comity of Nations
( Lat. comitas gentium)
The most appropriate phrase to express the
true foundation and extent of the obligation of
the laws of one nation within the territories of
another. Story, Confl.Laws, § 38. That body of
rules which states observe towards one another
from courtesy or mutual convenience, although
they do not form part of international law. Holtz.
Enc. s. v. Hilton v. Guyot, 159 U.S. 113, 16 S.Ct.
139, 40 L.Ed. 95; People v. Rushworth, 294 Ill.
455, 128 N.E. 555, 558; Second Russian Ins. Co. v.
Miller, C.C.A.N.Y., 297 F. 404, 409.
It is derived altogether from the voluntary consent of the
latter; and it is inadmissible when it is contrary to its
known policy, or prejudicial to its interests. In the silence
of any positive rule affirming or denying or restraining the
Comity of States
Simply a phrase designating the practice by
which the courts of one state follow the decision of
another on a like question, though not bound by
law of precedents to do so. Larrick v. Walters, 39
Ohio App. 363, 177 N.E. 642, 645.
COMMA. A point used to mark the smallest
structural divisions of a sentence, or a rhetorical
punctuation mark indicating the slightest possible
separation in ideas or construction. Travelers'
Ins. Co. v. Pomerantz, 124 Misc. 250, 207 N.Y.S. 81,
86.
COMMAND. An order, imperative direction, or
behest. State v. Mann, 2 N.C. 4; Barney v. Hayes,
334
COMMENCE
COMMANDMENT.
An authoritative order of a judge or magisterial
officer.
11 Mont. 571, 29 P. 282, 28 Am.St.Rep. 495. As
applied to a fortress, "command" means actual
control of the garrison for military purposes. As
applied to a ship, it means actual control of the
crew for nautical purposes. Hamilton v. U. S., C.
C.A.Va., 268 F. 15, 19.
The term "instance," as used with reference to doing an
act at one's instance, does not imply the same degree of
obligation to obey as does "command." Feore v. Trammel, 104 So. 808, 813, 213 Ala. 293.
COMMANDEMENT. In French law. A writ
served by the huissier pursuant to a judgment or
to an executory notarial deed. Its object is to
give notice to the debtor that if he does not pay
the sum to which he has been condemned by the
judgment, or which he engaged to pay by the notarial deed, his property will be seized and sold.
Arg.Fr.Merc.Law, 550.
In criminal law. The act or offense of one who
commands another to transgress the law, or do
anything contrary to law, as theft, murder, or the
like. Particularly applied to the act of an accessary before the fact, in inciting, procuring, setting on, or stirring up another to do the fact or
act. 2 Inst. 182.
COMMARCHIO. A boundary; the confines of
land.
COMMANDER IN CHIEF. By article 2, § 2, of
the constitution it is declared that the president
shall be commander in chief of the army and
navy of the United States. The term implies supreme control of military operations during the
progress of a war, not only on the side of strategy
tactics, but also in reference to the political
and international aspects of the war. See Fleming v. Page, 9 How. 603, 13 L.Ed. 276; Prize Cases,
2 Black, 635, 17 L.Ed. 459; Swaim v. U. S., 28 Ct.
Cl. 173.
COMMANDERY. In old English law. A manor
or chief messuage with lands and tenements thereto appertaining, which belonged to the priory of
St. John of Jerusalem, in England; he who had the
government of such a manor or house was styled
the "commander," who could not dispose of it, but
to the use of the priory, only taking thence his
own sustenance, according to his degree. The
manors and lands belonging to the priory of St.
John of Jerusalem were given to Henry the Eighth
by 32 Hen. VIII. c. 20, about the time of the dissolution of abbeys and monasteries; so that the
name only of commanderies remains, the power
being long since extinct. Wharton.
COMMANDITAIRES. Special partners; partners
en commanditë. See Commandite.
COMMANDITE. In French law. A partnership
in which some furnish money, and others furnish
their skill and labor in place of capital.
A special or limited partnership, where the contract is between one or more persons who are
general partners, and jointly and severally responsible, and one or more other persons who
merely furnish a particular fund or capital stock,
and thence are called "commanditaires," or "commenditaires," or "partners en commanditë," the
business being carried on under the social name
or firm of the general partners only, composed of
the names of the general or complementary partners, the partners in commanditë being liable to
losses only to the extent of the funds or capital
furnished by them. Story, Partn. § 78; 3 Kent,
Comm. 34. The term includes a partnership containing dormant rather than special partners.
Story, Partn. § 109.
COMMENCE. To perform the first act of. Robinson v. Gordon Oil Co., 258 Mich. 643, 242 N.W.
795, 796. To institute. State v. Murphy, 120 Kan.
350, 243 P. 288, 289. To demand something by
the institution of process in a court of justice.
Ledonne v. Commerce Ins. Co. of Glen Falls, N.Y.,
307 Pa. 1, 160 A. 612.
To commence an action or suit is to demand
something by the institution of process in a court
of justice. Cohens v. Virginia, 6 Wheat. 408, 5
L.Ed. 257.
To "bring" a suit is an equivalent term; an action Is
"commenced" when it is "brought," and vice versa. Goldenberg v. Murphy, 108 U.S. 162, 2 S. Ct. 388, 27 L.Ed. 686 ;
Hannaman v. Gordon, Tex.Com.App., 261 S.W. 1006, 1007.
An action is "commenced" within the meaning of the
statute of limitations as soon as the summons is signed
and sealed in good faith, for the purpose of immediate
service, and that purpose is not afterwards abandoned.
Wilson v. Clear, 85 N.J.L. 474, 89 A. 1031. Compare Glenn
v. Payne, 153 Tenn. 240, 280 S. W. 1019, 1021. Owen v. City
of Eastland, 124 Tex. 419, 78 S.W.2d 178, 179.
A suit in a court of record is "commenced", so as to save
suit from bar of statute of limitations, when the petition
is filed, even though process is not issued until the period
of limitation has run, since plaintiff has done all he can
toward commencement of the suit. Mo.St.Ann. § 724, p.
940. City of St. Louis v. Miller, 235 Mo.App. 987, 145
S. W.2d 504, 505.
A suit in equity is not commenced until the issuance of
a subpoena followed by a bona fide effort to serve it. U. S.
v. Scheurman, D.C.Idaho, 218 F. 915, 919.
To commence drilling operations within the meaning of
an oil and gas lease has reference to the first movement of
the drill in penetrating the ground. Solberg v. Sunburst
Oil & Gas Co., 73 Mont. 94, 235 P. 761, 763. But see Terry
v. Texas Co., Tex.Civ.App., 228 S.W. 1019, holding that a
lessee, by placing timbers for the erection of a derrick,
together with machinery, including a boiler, on the ground
where an oil well was to be drilled, complied with a provision requiring him to "commence to drill." But compare Lauderdale Power Co. v. Perry, 202 Ala. 394, 80 So.
476, 480.
Criminal prosecution is "commenced" within
statute of limitations when complaint is filed with
magistrate in good faith and warrant issued.
Hicks v. State, 54 Okl.Cr. 431, 23 P.2d 219.
Commencement of building or improvement,
within the meaning of Lien Law, is the visible
commencement of actual operations on the ground
for the erection of the building, which every one
can readily recognize as commencement of a
building, and which is done with intention to continue the work until building is completed. Security Stove & Mfg. Co. v. Sellards, 133 Kan. 747,
3 P.2d 481, 482, 76 A.L.R. 1397.
335
COMMENCEMENT
COMMENCEMENT OF A DECLARATION. That
part of the declaration which follows the venue
and precedes the circumstantial statement of the
cause of action.
man. A person who, by voluntary homage, put
himself under the protection of a superior lord.
Cowell.
It formerly contained a statement of the names of the
parties, and the character in which they sue or are sued,
if any other than their natural capacity; of the mode in
which the defendant had been brought into court, and a
brief statement of the form of action. In modern practice,
however, in most cases, it contains little else then the
names and character of the parties.
COMMENDA. In French law. The delivery of a
benefice to one who cannot hold the legal title,
to keep and manage it for a time limited and render an account of the proceeds. Guyot, Rep.Univ.
In Mercantile Law. An association in which the
management of the property was intrusted to individuals. Troub.Lim.Partn. c. 3, § 27.
COMMENDA EST FACULTAS RECIPIENDI ET
RETINENDI BENEFICIUM CONTRA JUS POSITIVUM A SUPREMA POTESTATE. Moore, 905.
A commendam is the power of receiving and retaining a benefice contrary to positive law, by
supreme authority.
COMMENDAM. In ecclesiastical law. The appointment of a suitable clerk to hold a void or vacant benefice or church living until a regular pastor be appointed. Hob. 144; Latch, 236.
In Commercial Law. A species of limited partnership. The limited partnership (or Societe en
commanditó) of the French law has been introduced into the Code of Louisiana under the title
of "Partnership in Commendam." Civil Code La.
art. 2810 (Civ.Code, art. 2839). See Mitchell, in
3 Sel.Essays, Anglo-Amer.L.H. 183; Commandite;
Societe.
COMMENDATIO. In the civil law. Commendation, praise, or recommendation, as in the maxim
"simplex commendatio non obligat," meaning that
mere recommendation or praise of an article by
the seller of it does not amount to a warranty of
its qualities. 2 Kent, Comm. 485.
COMMENDATION. In feudal law. The act by
which an owner of alodial land placed himself and
his land under the protection of a lord, so as to
constitute himself his vassal or feudal tenant.
COMMENDATORS. Secular persons upon whom
ecclesiastical benefices were bestowed, as in Scotland; called so because the benefices were commended and intrusted to their supervision. They
are merely trustees.
COMMENDATORY. He who holds a church living or preferment in commendam.
COMMENDATORY LETTERS. In ecclesiastical
law. Such as are written by one bishop to another
on behalf of any of the clergy, or others of his
diocese traveling thither, that they may be received among the faithful, or that the clerk may be
promoted, or necessaries administered to others,
etc. Wharton.
COMMENDATUS. In feudal law. One who intrusts himself to the protection of another. Spel-
COMMENT. The expression of the judgment
passed upon certain alleged facts by a person who
has applied his mind to them, and who while so
commenting assumes that such allegations of fact
are true. The assertion of a fact is not a "comment." Horn v. State, 106 Tex.Cr.R. 190, 292 S.
W. 227, 228.
COMMENT UPON THE EVIDENCE. Means that
trial judge is prohibited from conveying to jury
trial judge's personal opinion as to the truth
or falsity of any evidence, but prohibition does
not prohibit judges from giving counsel reasons
for rulings on questions presented during progress
of trial, or prohibit them in all cases from stating, when necessary, the facts upon which they
base their conclusions. State v. Brown, 19 Wash.
2d 195, 142 P.2d 257, 259, 260.
COMMERCE. The exchange of goods, productions, or property of any kind. Jeu Jo Wan v.
Nagle, C.C.A.Cal., 9 F.2d 309, 310.
Intercourse by way of trade and traffic between
different peoples or states and the citizens or inhabitants thereof, including not only the purchase,
sale, and exchange of commodities, but also the instrumentalities and agencies by which it is promoted and the means and appliances by which it
is carried on, and the transportation of persons as
well as of goods, both by land and by sea. Brennan v. Titusville, 14 S.Ct. 829, 153 U.S. 289, 38 L.
Ed. 719; Railroad Co. v. Fuller, 17 Wall. 568, 21
L.Ed. 710; Hoke v. United States, 33 S.Ct. 281,
283, 227 U.S. 308, 57 L.Ed. 523, 43 L.R.A.,N.S., 906,
Ann.Cas.1913E, 905. Also interchange of ideas,
sentiments, etc., as between man and man. U. S.
v. Eason Oil Co., D.C.Okl., 8 F.Supp. 365, 368.
Commerce, in its simplest signification, means an
exchange of goods; but in the advancement of society,
labor, transportation, intelligence, care and various mediums of exchange, become commodities and enter into commerce; the subject, the vehicle, the agent, and their
various operations become the objects of commercial
regulation. Lorenzetti v. American Trust Co., D.C.Cal., 45
F.Supp. 128, 132.
"Commerce" is not traffic alone, but is intercourse
between nations and parts of nations in all its branches.
Blumenstock Bros. Advertising Agency v. Curtis Pub. Co.,
252 U.S. 436, 40 S.Ct. 385, 387, 64 L.Ed. 649.
The words "commerce" and "trade" are often used
interchangeably; but, strictly speaking, commerce relates
to intercourse or dealings with foreign nations, states, or
political communities, while trade denotes business intercourse or mutual traffic within the limits of a state or
nation, or the buying, selling, and exchanging of articles
between members of the same community. Hooker v. Vandewater, 4 Denio, N.Y., 353, 47 Am. Dec. 258; Jacob;
Wharton.
—Commerce among the states. Transportation
from one state to another, and also all commercial
intercourse between the different states, and all
component parts of such intercourse. DahnkeWalker Milling Co. v. Bondurant, 257 U.S. 282, 42
S.Ct. 106, 108, 66 L.Ed. 239.
—Commerce with foreign nations. Commerce between citizens of the United States and citizens or
336
COMMERCIAL
tions, cartels, passports, safe-conducts, safeguards.
1 Kent 159; 2 Opp. 274.
subjects of foreign governments; commerce
which, either immediately or at some stage of its
progress, is extraterritorial. U. S. v. Holliday, 3
Wall. 409, 18 L.Ed. 182; Veazie v. Moor, 14 How.
573, 14 L.Ed. 545; Lord v. Steamship Co., 102 U.S.
544, 26 L.Ed. 224. The same as "foreign commerce," which see infra.
Contracts between citizens of one belligerent
and those of another, or between citizens of one
belligerent and the other belligerent. They may
take the form of ransom bills (q. v.), bills of exchange drawn by prisoners of war, or receipts for
requisitions. 1 Kent 104.
Power of Congress to regulate "commerce with foreign
nations" comprehends every species of commercial intercourse. U.S.C.A.Const. art. 1, § 8, cl. 3. Board of Trustees
of University of Illinois v. U. S., Cust. & Pat.App., 53 S.Ct.
509, 289 U.S. 48, 77 L.Ed. 1025.
COMMERCIAL. Relating to or connected with
trade and traffic or commerce in general. "Zante
Currents", C.C.Cal., 73 F. 189. Occupied with commerce. Bowles v. Co-Operative G. L. F. Farm
Products, D.C.N.Y., 53 F.Supp. 413, 415.
— Commerce with Indian tribes. Commerce with
individuals belonging to such tribes, in the nature
of buying, selling, and exchanging commodities,
without reference to the locality where carried
on, though it be within the limits of a state. U. S.
v. Holliday, 3 Wall. 407, 18 L.Ed. 182; U. S. v.
Cisna, 25 Fed.Cas. 424.
COMMERCIAL AGENCY. The same as a "mercantile" agency. In re United States Mercantile
Reporting, etc., Co., 4 N.Y.S. 916, 52 Hun, 611.
See Mercantile.
COMMERCIAL AGENT. An officer in the consular service of the United States, of rank inferior
to a consul. Also used as equivalent to "commercial broker," see infra.
—Domestic commerce. Commerce carried on
wholly within the limits of the United States, as
distinguished from foreign commerce. Also, commerce carried on within the limits of a single state,
as distinguished from interstate commerce. Louisville & N. R. Co. v. Tennessee R. R. Com'n, C.C.
Tenn., 19 Fed. 701.
COMMERCIAL BROKER. One who negotiates
the sale of merchandise without having the possession or control of it, being distinguished in the latter particular from a commission merchant. Adkins v. Richmond, 98 Va. 91, 34 S.E. 967, 47 L.R.A.
583, 81 Am.St.Rep. 705.
— Foreign commerce. Commerce or trade between
the United States and foreign countries. Com. v.
Housatonic R. Co., 143 Mass. 264, 9 N.E. 547;
Foster v. New Orleans, 94 U.S. 246, 24 L.Ed. 122.
The term is sometimes applied to commerce between ports of two sister states not lying on the
same coast, e. g., New York and San Francisco.
COMMERCIAL CORPORATION. One engaged in
commerce in the broadest sense of that term;
hence including a railroad company. Sweatt v.
Railroad Co., 23 Fed.Cas. 530.
—Internal commerce. Such as is carried on between individuals within the same state, or between different parts of the same state. Lehigh
Val. R. Co. v. Pennsylvania, 145 U.S. 192, 12 S.Ct.
806, 36 L.Ed. 672; Steamboat Co. v. Livingston, 3
Cow. (N.Y.) 713. Now more commonly called "intrastate" commerce.
— International commerce. Commerce between
states or nations entirely foreign to each other.
Louisville & N. R. Co. v. Tennessee R. R. Com'n,
C.C.Tenn., 19 F. 701.
—Interstate commerce. Such as is carried on between different states of the Union or between
points lying in different states. See Interstate
Commerce.
—Intrastate commerce. Such as is begun, carried
on, and completed wholly within the limits of a
single state. Contrasted with "interstate commerce" (q. v.). State v. Reed, 53 Mont. 292, 163
P. 477, 479, Ann.Cas.1917E, 783. And see Southern Pac. Co. v. State, 19 Ariz. 20, 165 P. 303, 306.
COMMERCIA BELLI. War contracts. Contracts
between nations at war, or their subjects.
Agreements entered into by belligerents, either
in time of peace to take effect in the event of
war, or during the war itself, by which arrangement is made for non-hostile intercourse. They
may take the form of armistices, truces, capitulaBlack's Law Dictionary Revised 4th Ed.-22
COMMERCIAL COURT. A name applied in English practice to the trial of commercial causes in
London and Liverpool before judges of the High
Court. It is said to be "a mere piece of convenience in the arrangement of business." [1895] 2
Ch. 491.
COMMERCIAL DOMICILE. See Domicile.
COMMERCIAL ESTABLISHMENT. A place
where commodities are exchanged, bought or
sold. State ex rel. Kansas City Power & Light Co.
v. Smith, 342 Mo. 75, 111 S.W.2d 513, 515.
COMMERCIAL FRUSTRATION. Excuse of party from performance if contract depends on existence of given person or thing and such person or thing perishes, and if contract is rendered
impossible by act of God, the law, or other party.
Wood v. Bartolino, 48 N.M. 175, 146 P.2d 883, 885,
890.
In theory it amounts to no more than a condition or
term of a contract which the law implies to take the place
of a covenant that it is assumed would have been inserted
by the parties had the contingency which arose occurred
to them at the time they made the contract. Lloyd v.
Murphy, Cal.App., 142 P.2d 939, 942, 943. And doctrine is
predicated upon premise of giving relief in a situation
where parties could not reasonably protect themselves by
terms of a contract against happening of subsequent
events. Berline v. Waldschmidt, 159 Kan. 585, 156 P.2d
865, 867. Hence doctrine has no application where events
were reasonably foreseeable and controllable by the par-ties.
337
COMMERCIAL
COMMERCIAL INSOLVENCY. Inability of a
businessman to pay his debts as they become due
in the regular and ordinary course of business.
Willing v. Eveloff, C;C.A.Pa., 94 F.2d 344, 346.
COMMERCIAL INSURANCE, See Insurance.
COMMERCIAL LAW. A phrase used to designate
the whole body of substantive jurisprudence applicable to the rights, intercourse, and relations
of persons engaged in commerce, trade, or mercantile pursuits. It is not a very scientific or accurate term. As foreign commerce is carried on
by means of shipping, the term has come to be
used occasionally as synonymous with "maritime
law;" but, in strictness, the phrase "commercial
law" is wider, and includes many transactions or
legal questions which have nothing to do with
shipping or its incidents. Watson v. Tarpley, 18
How. 521, 15 L.Ed. 509; , Williams v. Gold Hill
Min. Co., C.C.Cal., 96 F. 464.
is to be made by the purchasers to the principal
on such delivery. McKindly v. .Dunham, 55 Wis.
515, 13 N.W. 485, 42 Am.Rep. 740.
An agent who sells by sample and on credit, is not
Intrusted with the possession of the goods to be sold, has
no implied authority to receive payment, and payment to
whom will not discharge the purchawr. Butler v. Dorman,
68 Mo. 302, 30 Am.Rep. 795; Seiple v. Irwin, 30 Pa. 513 ;
Kornemann v. Monaghan, 24 Mich. 36.
COMMERCIUM. Lat. In the civil law. Commerce; business; trade; dealings in the nature
of purchase and sale; a contract.
COMMERCIUM JURE GENTIUM COMMUNE
ESSE DEBET, ET NON IN MONOPOLIUM ET
PRIVATUM PAUCORUM QUIESTUM CONVERTENDUM. 3 Inst. 181. Commerce, by the law of
nations, ought to be common, and not converted
to monopoly and the private gain of a few.
COMMINALTY. The commonalty or the people.
COMMERCIAL LETTER OF CREDIT. See Letter of Credit under the title Credit.
COMMERCIAL MARK. In French law. A trademark is specially or purely the mark of the manufacturer or producer of the article, while a "commercial" mark is that of the dealer or merchant
who distributes the product to consumers or the
trade. La Republique Francaise v. Schultz, C.C.
N.Y., 57 F. 41.
COMMINATORIUM. In old practice. A clause
sometimes added at the end of writs, admonishing
the sheriff to be faithful in executing them. Bract.
fol. 398.
COMMINGLE. To put together in one mass.
Pfau v. State, 148 Ind. 539, 47 N.E. 927, 929.
COMMINUTED FRACTURE. One in which the
bones have been somewhat crushed. Sang v. City
of St. Louis, 262 Mo. 454, 171 S.W. 347, 349.
COMMERCIAL PAPER. Bills of exchange, promissory notes, bank-checks, and other negotiable instruments for the payment of money, which, by
their form and on their face, purport to be such
instruments as are, by the law-merchant, recognized as falling under the designation of "commercial paper." In re Hercules Mut. L. Assur. Soc.,
6 Ben. 35, 12 Fed.Cas. 12. Negotiable paper given
in due course of business, whether the element of
negotiability be given it by the law-merchant or
by statute. In re Sykes, D.C.I11., 5 Biss. 113, Fed.
Cas.No.13,708; Martin v. McAvoy, 130 Wash. 641,
228 P. 694; Postal Telegraph Cable Co. v. Citizens' Nat. Bank, C.C.A.N.J., 228 F. 601, 604.
COMMERCIAL PARTNERSHIP. A "commercial
and trading partnership" is one that buys and
sells;—distinguished from one of employment and
occupation. Reid v. Linder, 77 Mont. 406, 251 P.
157, 161.
COMMISE. In old French law. Forfeiture; the
forfeiture of a fief; the penalty attached to the
ingratitude of a vassal. Guyot, Inst.Feod. c. 12.
COMMISSAIRE. In French law. A person who
receives from a meeting of shareholders a special
authority, viz., that of checking and examining
the accounts of a manager or of valuing the apports en nature, (q. v.) The name is also applied
to a judge who receives from a court a special
mission, e. g., to institute an inquiry, or to examine certain books, or to supervise the operations
of a bankruptcy. Arg.Fr.Merc.Law, 551.
COMMISSAIRES—PRISEURS. In French law.
Auctioneers, who possess the exclusive right of
selling personal property at public sale in the
towns in which they are established; and they
possess the same right concurrently with notaries,
greffiers, and huissiers, in the rest of the arrondissement. Arg.Fr.Merc.Law, 551.
COMMERCIAL RAILROADS. A term used to
embrace those railroads intended to carry all
freight and passenger traffic between one town or
place and another, and usually not constructed
upon streets and highways except for short distances;—distinguished from street railways. Anhalt v. Waterloo, C. F. & N. Ry. Co., 166 Iowa, 479,
147 N.W. 928, 931.
COMMISSARIAT. The whole body of officers
who make up the commissaries' department of
an army.
COMMERCIAL TRAVELER. A drummer; a
traveling salesman who simply exhibits samples
of goods kept for sale by his principal, and takes
orders frorp purchasers for such goods, which
goods are trfterwards to be delivered by the principal to the purchasers, and payment for the goods
COMMISSARY.
In ecclesiastical law. One who is sent or delegated to execute some office or duty as the representative of his superior; an officer of the bishop,
who exercises spiritual jurisdiction in distant parts
of the diocese. 1 Holdsw.Hist.L. 369.
COMMISSARIA LEX. A principle of the Roman
law relative to the forfeiture of contracts. See
Commissoria Lex.
338
COMMISSION
COMMISSION DE LUNATICO INQUIRENDO.
The same as a commission of lunacy, (see infra.)
In re Misselwitz, 177 Pa. 359, 35 A. 722.
In military law. An officer whose principal duties are to supply an army with provisions and
stores. As to the rank and duties of such officers
in the United States army, see 10 U.S.C.A. § 71 et
seq.
COMMISSION DEL CREDERE. In commercial
law. Where an agent of a seller undertakes to
guaranty to his principal the payment of the debt
due by the buyer. Story, Ag. 28.
COMMISSARY COURT. A Scotch ecclesiastical
court of general jurisdiction, held before four commissioners, members of the Faculty of Advocates,
appointed by the crown.
The phrase "del credere" is borrowed from the Italian
language, in which its signification is equivalent to our
word "guaranty" or "warranty."
COMMISSION. A warrant or authority or letters patent, issuing from the government, or one
of its departments, or a court, empowering a person or persons named to do certain acts, or to exercise jurisdiction, or to perform the duties and
exercise the authority of an office, (as in the case
of an officer in the army or navy.) Bledsoe v.
Colgan, 138 Cal. 34, 70 P. 924.
Also, in private affairs, it signifies the authority
or instructions under which one person transacts
business or negotiates for another.
COMMISSION GOVERNMENT. A method of
municipal government in which the legislative
power is in the hands of a few persons. State v.
Ure, 91 Neb. 31, 135 N.W. 224. Gardner v. Board
of Park Directors, 35 Cal.App. 597, 170 P. 672, 673
( mayor held not a "commissioner").
COMMISSION MERCHANT. A term which is
synonymous with "factor." It means one who
receives goods, chattels, or merchandise for sale,
exchange, or other disposition, and who is to receive a compensation for his services, to be paid
by the owner, or derived from the sale, etc., of the
goods. State v. Thompson, 120 Mo. 12, 25 S.W.
346. One whose business is to receive and sell
goods for a commission, being intrusted with the
possession of the goods to be sold, and usually
selling in his own name. Hughes v. Young, 17
Tenn.App. 24, 65 S.W.2d 858, 864.
In a derivative sense, a body of persons to
whom a commission is directed. A board or committee officially appointed and empowered to perform certain acts or exercise certain jurisdiction
of a public nature or relation; as a "commission
of assise."
Civil Law
A species of bailment, being an undertaking,
without reward, to do something in respect to an
article bailed; equivalent to "mandate."
Commercial Law
The recompense or reward of an agent, factor,
broker, or bailee, when the same is calculated as
a percentage on the amount of his transactions
or on the profit to the principal. In this sense,
however, the word occurs perhaps more frequently
in the plural. Gray v. Stern, 85 Wash. 645, 149 P.
26, 28. Jackson v. Stanfield, 137 Ind. 592, 57 N.E.
14, 23 L.R.A. 588. Sinclair Coal Co. v. Pittsburg
and Ashland Coal and Dock Co., 178 Minn. 114,
226 N.W. 206, 208. But the term may mean simply
a compensation; Smith v. Starke, 196 Mich. 311,
162 N.W. 998, 999; and does not necessarily imply
a mere per centum valuation; Jenkins v. LockePaddon Co., 30 Cal.App. 52, 157 P. 537.
Also, a compensation to an administrator for
the faithful discharge of his duties. In re Jula's
Estate, 3 N.J.Misc. 976,130 A. 733, 735.
Criminal Law
Doing or perpetration; the performance of an
act. Groves v. State, 116 Ga. 516, 42 S.E. 755, 59
L.R.A. 598.
Practice
An authority or writ issuing from a court, in
relation to a cause before it, directing and authorizing a person or persons named to do some
act or exercise some special function; usually to
take the depositions of witnesses.
COMMISSION DAY. In English practice. The
opening day of the assises.
Factors are frequently called "commission merchants".
and it is said that there is no difference in the meaning of
these terms, the latter being perhaps more commonly used
in America. Thompson v. Woodruff, 7 Cold. 410; Duguid
v. Edwards, 50 Barb., N.Y., 288; Lyon v. Alvord, 18 Conn.
80.
A commission merchant or factor differs from a broker
in that he may buy and sell in his own name without disclosing his principal and has the goods in his possession
while the broker can only buy or sell in the name of his
principal, and has no possession of the goods sold. Slack
v. Tucker, 23 Wall. 321, 330, 23 L.Ed. 143; Perkins v.
State, 50 Ala. 154, 156. A commission merchant has a lien
upon the goods for his charges, advances, and commissions, while the broker has no control of the property and
is responsible only for bad faith. A commission merchant
or factor has a special property in the goods. Sutton v.
Kiel Cheese & Butter Co., 155 Ky. 465, 159 S.W. 950, 951.
A "factor" or "commission merchant" is one who has the
actual or technical possession of goods or wares of another
for sale, while a "merchandise broker" is one who negotiates the sale of merchandise without having it in his possession or control, being simply an agent with very limited
powers. Hughes v. Young, 17 Tenn.App. 24, 65 S.W.2d 858,
864.
See, also, Factor.
COMMISSION OF ANTICIPATION. In English
law. An authority under the great seal to collect
a tax or subsidy before the day.
COMMISSION OF APPRAISEMENT AND SALE.
Where property has been arrested in an admiralty
action in rem and ordered by the court to be sold,
the order is carried out by a commission of appraisement and sale; in some cases (as where the
property is to be released on bail and the value is
disputed) a commission of appraisement only is
required. Sweet.
COMMISSION OF ARRAY. In English law. A
commission issued to send into every county officers to muster or set in military order the inhabi-
339
COMMISSION
tants, The introduction of commissions of lieutenancy, which contained, in substance, the same
powers as these commissions, superseded them.
2 Steph.Comm. (7th Ed.) 582,
COMMISSION OF ASSIZE. In English practice.
A commission which formerly issued from the
king, appointing certain persons as commissioners
or judges of assize to hold the assizes in association with discreet knights during those years in
which the justices in eyre did not come. A commission issued to judges of the high court or court
of appeal, authorizing them to sit at the assizes
for the trial of civil actions.
COMMISSION OF BANKRUPT. A commission or
authority formerly granted by the lord chancellor
to such persons as he should think proper, to examine the bankrupt in all matters relating to his
trade and effects, and to perform various other
important duties connected with bankruptcy matters. But now, under St. 1 & 2 Wm. IV. c. 56, § 12,
a fiat issues instead of such commission.
COMMISSION OF CHARITABLE USES. This
commission issues out of chancery to the bishop
and others, where lands given to charitable uses
are misemployed, or there is any fraud or dispute concerning them, to inquire of and redress
the same, etc.
COMMISSION OF DELEGATES. When any sentence was given in any ecclesiastical cause by the
archbishop, this commission, under the great seal,
was directed to certain persons, usually lords,
bishops, and judges of the law, to sit and hear an
appeal of the same to the king, in the court of
chancery. But latterly the judicial committee of
the privy council has supplied the place of this
commission. Brown.
tence of the court of delegates. 3 Bl.Comm. 67.
Now out of use, the privy council being substituted for the court of delegates, as the great court
of appeal in all ecclesiastical causes. 3 Steph.
Comm. 432.
COMMISSION OF THE PEACE. In English law.
A commission from the crown, appointing certain
persons therein named, jointly and severally, to
keep the peace, etc. Justices of the peace are always appointed by special commission under the
great seal, the form of which was settled by all
the judges, A. D. 1590, and continues with little
alteration to this day. 1 Bl.Comm. 351; 3 Steph.
Comm. 39, 40.
COMMISSION OF TREATY WITH FOREIGN
PRINCES. Leagues and arrangements made between states and kingdoms, by their ambassadors
and ministers, for the mutual advantage of the
kingdoms in alliance. Wharton.
COMMISSION OF UNLIVERY. In an action in
the English admiralty division, where it is necessary to have the cargo in a ship unladen in order
to have it appraised, a commission of unlivery is
issued and executed by the marshal. Williams &
B. Adm. Jur. 233.
COMMISSION TO EXAMINE • WITNESSES. In
practice. A commission issued out of the court
in which an action is pending, to direct the taking
of the depositions of witnesses who are beyond
the territorial jurisdiction of the court.
COMMISSION TO TAKE ANSWER IN CHANCERY. In English law. A commission issued
when defendant lives abroad to swear him to such
answer. 15 & 16 Vict. c. 86, § 21. Obsolete. See
Jud. Acts, 1873, 1875.
COMMISSION OF LUNACY. A commission issuing from a court of competent jurisdiction, authorizing an inquiry to be made into the mental
condition of a person who is alleged to be a lunatic.
COMMISSION TO TAKE DEPOSITIONS. A
written authority issued by a court of justice, giving power to take the testimony of witnesses who
cannot be personally produced in court. Tracy v.
Suydam, 30 Barb. (N. Y.) 110.
A writ issued out of chancery, or such court as may
have jurisdiction of the case, directed to a proper officer,
to inquire whether a person named therein is a lunatic or
not. In re Moore, 68 Cal. 281, 9 P. 164.
COMMISSIONED OFFICERS. In the United
States army and navy and marine corps, those of
or above the rank of second lieutenant. Davis,
Mil. L. 26. Those who hold their rank and office
under commissions issued by the president, as
distinguished from non-commissioned officers (in
the army, including sergeants, corporals, etc.) and
warrant officers (in the navy, including boatswains, gunners, etc.) and from privates or enlisted men. Stephens v. Civil Service Commission
of New Jersey, 101 N.J.Law 192, 127 A. 808, 811.
See Babbitt v. U. S., 16 Ct.C1. 202.
COMMISSION OF PARTITION. In the former
English equity practice, this was a commission
or authority issued to certain persons, to effect a
division of lands held by tenants in common desiring a partition; when the commissioners reported, the parties were ordered to execute mutual conveyances to confirm the division. Commissioners appointed to make partition are in the
nature of arbitrators. Clough v. Cromwell, 250
Mass. 324, 145 N.E. 473, 474.
COMMISSION OF REBELLION. In English law.
An attaching process, formerly issuable out of
chancery, to enforce obedience to a process or decree; abolished in August, 1841.
COMMISSION OF 'REVIEW. In English ecclesiastical law. A commission formerly sometimes
granted in extraordinary cases, to revise the sen-
COMMISSIONER. A person to whom a commission is directed by the government or a court.
State v. Banking Co., 14 N.J.L. 437; In re Canter,
81 N.Y.S. 338, 40 Misc. 126.
In the governmental system of the United
States, this term denotes an officer who is charged
with the administration of the laws relating to
some particular subject-matter, or the management of some bureau or agency of the govern-
340
COMMITTEE
COMMISSIVE. Caused by or consisting in acts of
commission, as distinguished from neglect, sufferance, or toleration; as in the phrase "commissive waste," which is contrasted with "permissive
waste." See Waste.
ment. Such are the commissioners of education,
of patents, of pensions, of fisheries, of the general
land-office, of Indian affairs, etc.
In the state governmental systems, also, and in
England, the term is quite extensively used as a
designation of various officers having a similar
authority and similar duties.
In the commission form of municipal government, the term is applied to any of the several
officers constituting the commission. Gardner v.
Board of Park Directors, 35 Cal.App. 597, 170 P.
672, 673.
COMMISSORIA LEX. In Roman law. A law
according to which a seller might stipulate that he
should be freed from his obligation, and might
rescind the sale, if the purchase price were not
paid at the appointed time. Also a law by which
a debtor and his pledgee might agree that, if the
debtor did not pay at the day appointed, the
pledge should become the absolute property of the
creditor. This, however, was abolished by a law
of Constantine. Cod. 8, 35, 3. See Dig. 18, 3;
Mackeld. Rom.Law, §§ 447, 461; 2 Kent, Comm.
583.
—Commissioners of bail. Officers appointed to
take recognizances of bail in civil cases.
— Commissioners of bankrupts. The name given,
under the former English practice in bankruptcy,
to the persons appointed under the great seal to
execute a commission of bankruptcy (q. v.).
—Commissioners of circuit courts. Officers appointed by and attached to the former circuit
courts of the United States, performing functions
partly ministerial and partly judicial. In re
Com'rs of Circuit Court, C.C.N.C., 65 F. 317. Their
office was abolished by the Act of May 28, 1896
(34 Stat. 184) and they have been succeeded by
"United States commissioners." See that title.
—Commissioners of deeds. Officers empowered
by the government of one state to reside in another state, and there take acknowledgments of
deeds and other papers which are to be used as
evidence or put on record in the former state.
COMMIT. To perpetrate, as a crime; to perform,
as an act. Groves v. State, 116 Ga. 516, 42 S.E.
755, 59 L.R.A. 598.
To send a person to prison by virtue of a lawful authority, for any crime or contempt, or to an
asylum, workhouse, reformatory, or the like, by
authority of a court or magistrate. People v.
Beach, 122 Cal. 37, 54 P. 369.
To deliver a defendant to the custody of the
sheriff or marshal, on his surrender by his bail.
1 Tidd, Pr. 285, 287.
COMMITMENT.
In practice. The warrant or
mittimus by which a court or magistrate directs
--Commissioners of highways. Officers appointed
in each county or township, in many of the states,
with power to take charge of the altering, opening, repair, and vacating of highways within such
county or township.
an officer to take a person to prison. Authority
for holding in prison one convicted of crime. Ex
parte Haynes, 98 Tex.Cr.R. 609, 267 S.W. 490, 493.
A process directed to a ministerial officer by which
a person is to be confined in prison, usually issued
by a court or magistrate. People ex rel. Wojek v.
Henderson, 235 N.Y.S. 173, 178, 134 Misc. 228.
—Commissioner of patents. The title given by
law to the head of the patent office. See 35 USCA
§ 2.
A warrant which does not direct an officer to commit a
party to prison but only to receive him into custody and
safely keep him for further examination, is not a commitment. Gilbert v. U. S., 23 Ct.C1. 218.
— Commissioners of sewers. In English law.
Commissioners appointed under the great seal,
and constituting a court of special jurisdiction;
which is to overlook the repairs of the banks and
walls of the seacoast and navigable rivers, or,
with consent of a certain proportion of the owners
and occupiers, to make new ones, and to cleanse
such rivers, and the streams communicating therewith. St. 3 & 4 Wm. IV. c. 22, § 10; 3 .Steph.
Comm. 442.
— Commissioner of woods and forests. An officer
created by act of parliament of 1817, to whom
was transferred the jurisdiction of the chief justices of the forest. Inderwick, The King's Peace.
—County commissioners. See County.
COMMISSIONS. The compensation or reward
paid to a factor, broker, agent, bailee, executor,
trustee, receiver, etc., usually calculated as a percentage on the amount of his transactions or the
amount received or expended. See Commission.
The act of sending a person to prison by means
of such a warrant or order. Allen v. Hagan, 170
N.Y. 46, 62 N.E. 1086.
A proceeding for the restraining and confining
of insane persons for their own and the public's
protection. Vance v. Ellerbe, 150 La. 388, 90 So.
735, 740.
COMMITTED IN PRESENCE OF OFFICER. Under statutes authorizing arrest without warrant,
when facts and circumstances occurring within
officer's observation, in connection with what, under circumstances, may be considered as common
knowledge, give him probable cause to believe or
reasonable grounds to suspect that such is the
case. Noce v. Ritchie, 109 W.Va. 391, 155 S.E. 127,
128.
COMMITTEE. A person, or an assembly or board
of persons, to whom the consideration, determination, or management of any matter is committed
or referred, as by a court. Lloyd v. Hart, 2 Pa.
473, 45 Am.Dec. 612; Farrar v. Eastman, 5 Me.
341
COMMITTEE
345; Blaisdell v. Inhabitants of Town of York, 110
Me. 500, 87 A. 361, 370.
An individual or body to whom others have
delegated or committed a particular duty, or who
have taken on themselves to perform it in the expectation of :their act being confirmed by the body
they profess to represent or act for. 15 Mees. &
W. 529.
The term is especially applied to the person or persons
who are invested, by order of the proper court, with the
guardianship of the person and estate of one who has been
adjudged a lunatic.
In parliamentary law. A portion of a legislative body, comprising one or more members, who
are charged with the duty of examining some matter specially referred to them by the house, or of
deliberating upon it, and reporting to the house
the result of their investigations or recommending
a course of action.
A committee may be appointed for one special occasion,
or it may be appointed to deal with all matters which may
be referred to it during a whole session or during the life
of the body. In the latter case, it is called a "standing
committee." It is usually composed of a comparatively
small number of members, but may include the whole
house.
Joint committee. A joint committee of a legislative body comprising two chambers is a committee consisting of representatives of each of the
two houses, meeting and acting together as one
committee.
Secret committee. A secret committee of the
house of commons is a committee specially appointed to investigate a certain matter, and to
which secrecy being deemed necessary in furtherance of its objects, its proceedings are conducted
with closed doors, to the exclusion of all persons
not members of the committee. All other committees are open to members of the house, although
they may not be serving upon them. Brown.
COMMITTING MAGISTRATE. An inferior judicial officer who is invested with authority to conduct the preliminary hearing of persons charged
with crime, and either to discharge them for lack
of sufficient prima facie evidence or to commit
them to jail to await trial or (in some jurisdictions) to accept bail and release them thereon.
The term is said to be synonymous with "examining court." State v. Rogers, 31 N.M. 485, 247 P.
828, 833.
COMMITTITUR. In practice. An order or minute, setting forth that the person named in it is
committed to the custody of the sheriff.
COMMITTITUR PIECE. In English law. An instrument in writing on paper or parchment, which
charges a person, already in prison, in execution
at the suit of the person who arrested him. 2
Chit.Archb.Pr. (12th Ed.) 1208.
COMMIXTIO, or COMMIXTION. In the civil law.
The mixing together or confusion of things, dry or
solid, belonging to different owners, as distinguished from confusio, which has relation to liquids. Lec. Elem. du Dr. Rom. §§ 370, 371; Story,
Bailm. § 40; 1 Bouvier, Inst. n. 506.
COMMODATE. Where property is loaned gratuitously by owner for sole benefit, accommodation,
and use of borrower, and specific thing loaned is
to be returned. The Pegeen, D.C.Cal., 14 F.Supp.
748, 751. See, also, Commodatum.
COMMODATI ACTIO. Lat. In the civil law. An
action of loan; an action for a thing lent. An action given for the recovery of a thing loaned,
(commodatum,) and not returned to the lender.
Inst. 3, 15, 2; Id. 4, 1, 16.
COMMODATO. In Spanish law. A contract by
which one person lends gratuitously to another
some object not consumable, to be restored to him
in kind at a given period; the same contract as
commodatum (q. v.).
COMMODATUM. A contract by which one of the
parties binds himself to return to the other certain
personal chattels which the latter delivers to him
to be used by him without reward; loan for use.
Slack v. Bryan, 299 Ky. 132, 184 S.W.2d 873, 876.
A gratuitous loan of goods to be temporarily used by the
bailee, and returned in specie. Hanes v. Shapiro & Smith,
168 N.C. 24, 84 S.E. 33, 35. He who lends to another a
thing for a definite time, to be enjoyed and used under certain conditions, without any pay or reward, is called "cornmodans ;" the person who receives the thing is :called
"commodatarius," and the contract is called "commodatum." It differs from locatio and conductio, in this :
that the use of the thing is gratuitous. Dig. 13, 6; Inst.
3, 2, 14; Story, Bailm, § 221. Coogs v. Bernard, 2
Ld.Raym. 909; Adams v. Mortgage Co., 82 Miss. 263, 34
So. 482, 17 L.R.A.,N.S., 138, 100 Am.St.Rep. 633; World's
Columbian Exposition Co. v. Republic of France, C.C.A.
Ill., 96 F. 693, 38 C.C.A. 483.
COMMODITIES. Those things which are useful
or serviceable, particularly articles of merchandise movable in trade. American League Baseball
Club of Chicago v. Chase, 149 N.Y.S. 6, 15, 86 Misc.
441.
Goods, wares, and merchandise of any kind;
movables; articles of trade or commerce. Queen
Ins. Co. v. State, 86 Tex. 250, 24 S.W. 397, 22 L.R.
A. 483. Movable articles of value; things that are
bought and sold. United States v. Sischo, D.C.
Wash., 262 F. 1001, 1005. See, also, Commodity.
This word is a broader term than merchandise, and, in
referring to commerce may include almost any article of
movable or personal property. Pound v. Lawrence, Tex.
Civ. App., 233 S. W. 359, 361; Shuttleworth v. State, 35 Ala.
415; State v. Henke, 19 Mo. 225.
Labor has been held not to be a commodity. Rohlf v.
Kasemeier, 140 Iowa 182, 118 N.W. 276, 23 L.R.A., N.S.,
1285. But it has been held that the supplying of telephone
service is the supplying of a commodity of commerce ;
McKinley Telephone Co. v. Cumberland Telephone Co., 152
Wis. 359, 140 N.W. 38, 39; and it has also been thought
that the privilege of receiving property by will or intestate
succession is a commodity subject to the Massachusetts
excise law ; Dana v. Dana, 226 Mass. 297, 115 N.E. 418, 419.
COMMODITIES CLAUSE. A clause in the act of
Congress, June 29, 1906 (49 USCA § 1 (8), providing that it shall be unlawful for any railroad
company to transport commodities (excepting
timber and its manufactured products) manufactured, mined or produced by it, or under its authority, or which it may own in whole or in part,
or in which it may have any interest, direct or
indirect, except such articles or commodities as
342
COMMON
grant within time of memory, or, in other words, may be
created at the present day ; it may be claimed as annexed
to any kind of land, and may be claimed for beasts not
commonable, as well as those that are. 2 Bl.Comm. 33;
Van Rensselaer v. Radcliff, 10 Wend., N.Y.,. 649.
may be necessary and intended for its use in its
business. U. S. v. R. Co., 31 S.Ct. 387, 220 U.S. 257,
55 L.Ed. 458.
COMMODITY. In the most comprehensive sense,
convenience, accommodation, profit, benefit, advantage, interest, commodiousness.
In the commercial sense, any movable or tangible thing that is produced or used as the subject
of barter or sale. People v. Epstean, 170 N.Y.S.
68, 79, 102 Misc. 476. See Commodities.
—Common because of vicinage is where the inhabitants of two townshi p s which lie contiguous
to each other have usually intercommoned with
one another, the beasts of the one straying mutually into the other's fields, without any molestation
from either. 2 Bl.Comm. 33; Co. Litt. 122a; 4
Co. 38a; 10 Q.B. 581, 589, 604; Smith v. Floyd, 18
Barb. (N.Y.) 523.
COMMODITY RATE. With reference to railroads, a rate which applies to a specific commodity alone ;—distinguished from a "class rate,"
meaning a single rate which applies to a number
of articles of the same general character. Norfolk Southern R. Co. v. Freeman Supply Corporation, 145 Va. 207, 133 S.E. 817, 818.
This Is, indeed, only a permissive right, intended to
excuse what, in strictness, is a trespass in both, and to
prevent a multiplicity of suits, and therefore either township may inclose and bar out the other, though they have
intercommoned time out of mind.
—Common in gross, or at large. A species of
common which is neither appendant nor appurtenant to land, but is annexed to a man's person,
being granted to him and his heirs by deed; or it
may be claimed by prescriptive right, as by a parson of a church or the like corporation sole. 2
Bl.Comm. 34. It is a separate inheritance, entirely distinct from any other landed property, vested
in the person to whom the common right belongs.
2 Steph.Comm. 6; Mitchell v. D'Olier, 68 N.J.L.
375, 53 A. 467, 59 L.R.A. 949.
COMMODORE. A grade in the United States
navy, superior to a captain. Omitted from the
active list. Act of March 3 ., 1899, c. 413, 30 Stat.
1004. See 34 USCA § 1.
COMMODUM EX INJURIA SUA NEMO HABERE
DEBET. No person ought to have advantage
from his own wrong. Jenk.Cent. 161; Finch, Law,
b. 1, c. 3, n. 62.
COMMON, n. An incorporeal hereditament which
consists in a profit which one man has in connection with one or more others in the land of another. Trustees v. Robinson, 12 Serg. & R. (Pa.)
31; Thomas v. Inhabitants of Marshfield, 10 Pick.
( Mass.) 364; 3 Kent 403; United States v. 1,010.8
Acres, More or Less, Situate in Sussex County,
Del., D.C.Del., 56 F.Supp. 120, 132, 134,
In English law, is an incorporeal right which lies in
grant, originally commencing on some agreement between
lords and tenants, which by time has been formed into
prescription, and continues good, although there be no deed
or instrument to prove the original contract. 4 Coke, 37;
1 Crabb, Real Prop. p. 258, § 268.
Common, or a right of common, is a right or privilege
which several persons have to the produce of the lands or
waters of another. Van Rensselaer v. Radcliff, 10 Wend.,
N.Y., 647, 25 Am.Dec. 582.
Also an uninclosed piece of land set apart for
public or municipal purposes, in many cities and
villages of the United States. Newell v. Hancock,
67 N.H. 244, 35 A. 253. United States v. 1,010.8
Acres, More or Less, Situate in . Sussex County,
Del., D.C.Del., 56 F.Supp. 120, 122, 134.
—Common appendant. A right annexed to the
possession of arable land, by which the owner is
entitled to feed his beasts on the lands of another,
usually of the owner of the manor of which the
lands entitled to common are a part. 2 Bl.Comm.
33; Van Rensselaer v. Radcliff, 10 Wend. (N.Y.)
648.
—Common appurtenant. A right of feeding one's
beasts on the land of another, (in common with
the owner or with others,) which is founded on a
grant, or a prescription which supposes a grant.
1 Crabb, Real Prop. p. 264, § 277.
This kind of common arises from no connection of tenure, and is against common right; it may commence by
—Common of digging. Common of digging, or
common in the soil, is the right to take for one's
own use part of the soil or minerals in another's
land; the most usual subjects of the right are
sand, gravel, stones, and clay. It is of a very
similar nature to common of estovers and of turbary. Elton, Com. 109.
—Common of estovers. A liberty of taking necessary wood for the use or furniture of a house or
farm from off another's estate, in common with
the owner or with others. 2 Bl.Comm. 35. It
may be claimed, like common of pasture, either
by grant or prescription. 2 Steph.Comm. 10;
Plowd. 381; Van Rensselaer v. Radcliff, 10 Wend.
( N.Y.) 648.
—Common of fishery. The same as Common of
piscary. See infra.
— Common of fowling. In some parts of the country a right of taking wild animals (such as conies
or wildfowl) from the land of another has been
found to exist; in the case of wildfowl, it is called
a "common of fowling." Elton, Corn. 118.
— Common of pasture. The right or liberty of
pasturing one's cattle upon another man's land.
It may be either appendant, appurtenant, in gross,
or because of vicinage. Van Rensselaer v. Radcliff, 10 Wend. (N.Y.) 647.
—Common of piscary. The right or liberty of
fishing in another man's water, in common with
the owner or with other persons. 2 Bl.Comm. 34.
A liberty or right of fishing in the water covering
the soil of another person, or in a river running
through another's land. 3 Kent, Comm. 409. Hardin v. Jordan, 11 S.Ct. 808, 140 U.S. 371, 35 L.Ed.
428. It is quite different from a common fishery,
343
COMMON
with which, however, it is frequently confounded.
See Fishery.
and difficulties are either prevented or removed.
Wharton.
—Common of shack. A species of common by
vicinage prevailing in the counties of Norfolk,
Lincoln, and Yorkshire, in England; being the
right of persons occupying lands lying together
in the same common field to turn out their cattle
after harvest to feed promiscuously in that field.
2 Steph.Comm. 6, 7; 5 Coke, 65; 1 B. & Ald. 710.
—Common causes or suits. A term anciently
used to denote civil actions, or those depending
between subject and subject, as distinguished from
pleas of the crown. Dallett v. Feltus, 7 Phila.
( Pa.) 627.
—Common of turbary. In its modern sense the
right of taking peat or turf from the waste land
of another, for fuel in the commoner's house. Williams, Common, 187; Van Rensselaer v. Radcliff,
10 Wend. (N.Y.) 647; 4 Co. 37; 3 Atk. 189, Noy,
145; 7 East, 127.
—Common danger. "Common danger" which
gives a right to contribution in general average
does not mean equal danger; hence, the fact that
a part of the cargo of a stranded steamship is of
a kind which is in little danger of injury does not
relieve it of the liability to contribute. Willcox,
Peck & Hughes v. American Smelting & Refining
Co., D.C.N.Y., 210 F. 89, 91.
—Common condidit. See Condedit.
— Common sans nombre. Common without number, that is, without limit as to the number of
cattle which may be turned on; otherwise called
"common without stint." Bract. fols. 53b, 222b;
2 Steph.Comm. 6, 7; 2 Bl.Comm. 34. United
States v. 1,010.8 Acres, More or Less, Situate in
Sussex County, Del., D.C.Del., 56 F.Supp. 120, 133.
—Common design. In criminal law. Community
of intention between two or more persons to do
an unlawful act. State v. Hill, 273 Mo. 329, 201
S.W. 58, 60.
—Common enterprise. See Joint enterprise.
— Common, tenants in. See Tenants in Common.
—Common without stint. Another name for
Common sans nombre. See supra.
COMMON, adj.
Usual, ordinary, accustomed;
shared among several; owned by several jointly.
Koen v. State, 35 Neb. 676, 53 N.W. 595, 17 L.R.A.
821. Belonging or pertaining to many or to the
majority; generally or prevalent, of frequent or
ordinary occurrence or appearance; familiar by
reason of frequency. Webb v. New Mexico Pub.
Co., 47 N.M. 279, 141 P.2d 333, 335. Also, usual,
customary, and habitual, professed, or confessed,
and used indefinitely in various terms implying
illegal or criminal conduct, such as common scold,
common thief, etc. Levine v. State, 166 A. 300,
302, 110 N.J.L. 467.
As to common "Bail," "Barretor," "Carrier,"
"Chase," "Condedit," "Council," "Counts," "Day,"
"Debtor," "Diligence," "Drunkard," "Error,"
"Fishery," "Highway," "Informer," "Inn," "Intendment," "Intent," "Jury," "Labor," "Nuisance," "Occupant," "Property," "School," "Scold," "Seal,"
"Seargeant," "Stock," "Traverse," "Vouchee,"
"Wall," see those titles.
—Common appearance. That which could be filed
by the plaintiff, who could enter a rule on the defendant to plead, where the defendant, after due
service of process on him, had removed from the
jurisdiction without having entered an appearance, or could not be found. 12 Geo. II., c. 29; 1
Troub. & Haly, Pr. 159; Bender v. Ryan, 9 Wkly.
Notes Cas. (Pa.) 144.
—Common assurances. The several modes or instruments of conveyance established or authorized
by the law of England. Called "common" because
thereby every man's estate is assured to him. 2
Bl.Comm. 294. The legal evidences of the translation of property, whereby every person's estate
is assured to him, and all controversies, doubts,
—Common fine. In old English law. A certain
sum of money which the residents in a leet paid
to the lord of the leet, otherwise called "head silver," "cert money," (q. v.,) or "certum letce."
Termes de la Ley; Cowell; Fleta; Wharton. A
sum of money paid by the inhabitants of a manor
to their lord, towards the charge of holding a
court leet. Bailey, Diet.
—Common form. A will is said to be proved in
common form when the executor proves it on his
own oath; as distinguished from "proof by witnesses," which is necessary when the paper propounded as a will is disputed. Hubbard v. Hubbard, 7 Or. 42; Sutton v. Hancock, 118 Ga. 436, 45,
S.E. 504.
—Common hall. A court in the city of London,
at which all the citizens, or such as are free of
the city, have a right to attend.
—Common learning. Familiar law or doctrine..
Dyer, 27b, 33.
—Common liquor dealer. In Florida, one who, being charged with unlawfully engaging in and carrying on the business of a dealer in liquors, has
been before convicted of a like offense and duly
sentenced therefor. Thomas v. State, 74 Fla. 200,.
76 So. 780. See, also, Common thief, infra.
—Common peril. See Common danger, supra.
—Common place. Common pleas. The English
court of common pleas is sometimes so called in
the old books.
—Common prayer. The liturgy, or public form
of prayer prescribed by the Church of England
to be used in all churches and chapels, and which
the clergy are enjoined to use under a certain
penalty.
—Common repute. The prevailing belief in a given community as to the existence of a certain fact
344
COMMON LAW
or aggregation of facts. Brown v. Foster, 41 S.
C. 118, 19 S.E. 299.
—Common weal. The public or common good or
welfare.
—Common right. A term applied to rights, privileges, and immunities appertaining to and enjoyed
by all citizens equally and in common, and which
have their foundation in the common law. Co.
Inst. 142a; Spring Valley Waterworks v. Schottler, 62 Cal. 106.
—Common woman. One who is low, inferior, vulgar, or coarse; also, one who is unchaste. But
the term does not necessarily impute unchastity.
Daniel v. Moncure, 58 Mont. 193, 190 P. 983, 985.
—Common seller. A common seller of any commodity (particularly under the liquor laws of
many states) is one who sells it frequently, usually, customarily, or habitually; in some states, one
who is shown to have made a certain number of
sales, either three or five. State v. O'Conner, 49
Me. 596; State v. Nutt, 28 Vt. 598; Moundsville
v. Fountain, 27 W.Va. 194; Com. v. Tubbs, 1 Cush.
( Mass.) 2.
—Common sense. Sound practical judgment.,
that degree of intelligence and reason, as exercised upon the relations of persons and things and
the ordinary affairs of life, which is possessed by
the generality of mankind, and which would suffice to direct the conduct and actions of the individual in a manner to agree with the behavior
of ordinary persons.
—Common service. That service in which are
engaged (with reference to the fellow-servant
rule) all those who enter into the service of a
common master, except those who become heads
of and vested with absolute control of separate
departments or branches of a great and diversified
business. Union Pac. R. Co. v. Marone, C.C.A.
Neb., 246 F. 916, 923.
The term, in its broadest and most obvious sense, would
include all activities prosecuted in the business of the
master which have for their purpose the attainment of one
common end ; nevertheless, an employee, invested with the
duty of overseeing, directing, and controlling workmen, is
not a fellow servant with respect to the discharge of those
duties, but is a representative of the master. Funk v. Fulton Iron Works Co., 311 Mo. 77, 277 S. W. 566, 569.
—Common thief. One who by practice and habit
is a thief; or, in some states, one who has been
convicted of three distinct larcenies at the same
term of court. Stevens v. Com., 4 Metc. (Mass.)
364.
—Common use. This phrase, as used in an antitrust law extending to contracts affecting the
prices of articles or commodities in "common use,"
describes articles used by the people in general;
such articles or commodities as are in general use
or used to a great extent in the homes of the
people; the articles which are produced to be sold
to the people, to be consumed and used by the
people in general, and to be found for sale in all
the marts of trade. People v. Epstean, 102 Misc.
476, 170 N.Y.S. 68, 75. It suggests the opposite of
casual use. Geis v. State, 126 Md. 265, 94 A. 909,
910.
—Common victualer. The keeper of a restaurant
or public eating house, where the food sold is eaten on the premises. Commonwealth v. Meckel,
221 Mass. 70, 108 N.E. 917.
COMMON BAR. In pleading. (Otherwise called
"blank bar.") A plea to compel the plaintiff
to assign the particular place where the trespass
has been committed. Steph.Pi. 256.
COMMON BENCH. The ancient name for the
English court of common pleas. Its original title
appears to have been simply "The Bench," but it
was designated "Common Bench" to distinguish
it from the "King's Bench," and because in it were
tried and determined the causes of common persons, i. e., causes between subject and subject, in
which the crown had no interest.
COMMON ENEMY DOCTRINE. Recognized as
to surface waters in but a few states, under which
no natural easement or servitude exists in favor
of the superior or higher land as to mere surface
water, or such as falls or accumulates by rains
or the melting of snow; and the proprietor of the
inferior or lower tenement or estate may at his
option lawfully obstruct or hinder the flow of such
water thereon, and in so doing may turn back or
off of his own lands, and onto and over the lands
of other proprietors, such water, without liability
by reason of such obstruction or diversion. Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 411,
85 A.L.R. 451.
COMMON HUMANITY DOCTRINE. Where a
passenger becomes sick or is injured while en
route, carrier owes duty under "common humanity
doctrine" to render to passenger such reasonable
care and attention as common humanity would
dictate. Alabama Great S. R. Co. v. Taylor, 190
Miss. 69, 199 So. 310, 312.
COMMON KNOWLEDGE. Is what court may declare applicable to action without necessity of
proof. It is knowledge that every intelligent person has. Strain v. Isaacs, 59 Ohio App. 495, 18 N.
E.2d 816, 825. It includes matters of learning,
experience, history, and facts of which judicial notice may be taken. Shelley v. Chilton's Adm'r, 236
Ky. 221, 32 S.W.2d 974, 977.
COMMON LAW. As distinguished from the Roman law, the modern civil law, the canon law,
and other systems, the common law is that body
of law and juristic theory which wa , originated,
developed, and formulated and is adr. tinistered in
England, and has obtained among nost of the
states and peoples of Anglo-Saxon stock. Lux v.
Haggin, 69 Cal. 255, 10 P. 674.
As distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action,
relating to the government and security of persons and property, which derive their authority
solely from usages and customs of immemorial
antiquity, or from the judgments and decrees of
345
COMMON LAW
the courts recognizing, affirming, and enforcing
such usages and customs; and, in this sense, particularly the ancient unwritten law of England.
1 Kent, Comm. 492. Western Union Tel. Co. v.
Call Pub. Co., 21 S.Ct. 561, 181 U.S. 92, 45 L.Ed.
765; Barry v. Port Jervis, 72 N.Y.S. 104, 64 App.
Div. 268; U. S. v. Miller, D.C.Wash., 236 F. 798,
800.
As distinguished from equity law, it is a body
of rules and principles, written or unwritten,
which are of fixed and immutable authority, and
which must be applied to controversies rigorously
and in their entirety, and cannot be modified to
suit the peculiarities of a specific case, or colored
by any judicial discretion, and which rests confessedly upon custom or statute, as distinguished
from any claim to ethical superiority. Klever v.
Seawall, C.C.A.Ohio, 65 F. 395, 12 C.C.A. 661.
As distinguished from ecclesiastical law, it is
the system of jurisprudence administered by the
purely secular tribunals.
As concerns its force and authority in the United States, the phrase designates that portion of
the common law of England (including such acts
of parliament as were applicable) which had been
adopted and was in force here at the time of the
Revolution. This, so far as it has not since been
expressly abrogated, is recognized as an organic
part of the jurisprudence of most of the United
States. Industrial Acceptance Corporation v.
Webb, Mo.App., 287 S.W. 657, 660.
The "common law" of England, which is the rule of
decision in all courts of Montana, in so far as it is not
repugnant to the Constitution of the United States or the
Constitution or laws of that state, means that body of
jurisprudence as applied and modified by the courts of this
country up to the time it was adopted in Montana. Herrin
v. Sutherland, 74 Mont. 587, 241 P. 328, 330, 42 A.L.R. 937.
See, also, Norvell-Wilder Hardware Co. v. McCamey, Tex.
Civ.App., 290 S.W. 772, 773; Fletcher v. Los Angeles
Trust & Savings Bank, 182 Cal. 177, 187 P. 425, 427.
The common law of England, adopted by Pol. Code Cal.
§ 4468, does not refer solely to the lex non scripta, the common law unmodified by statute, but contemplates the whole
body of jurisprudence as it stood, influenced by statute at
the time when the Code section was adopted, and also
embraces equity. Martin v. Superior Court of California
in and for Alameda County, 176 Cal. 289, 168 P. 135, 136,
L.R.A.1918B, 313.
In a wider sense than any of the foregoing, the
"common law" may designate all that part of the
positive law, juristic theory, and ancient custom
of any state or nation which is of general and
universal application, thus marking off special or
local rules or customs.
For "Federal Common Law," see that title.
As a compound adjective "common-law" is understood as contrasted with or opposed to "statutory," and sometimes also to "equitable" or to
"criminal." See examples below.
COMMON-LAW ACTION. A civil suit, as distinguished from a criminal prosecution or a proceeding to enforce a penalty or a police regulation; not necessarily an action which would lie at
common law. Kirby v. Railroad Co., C.C.Iowa,
106 F. 551; U. S. v. Block, 24 Fed.Cas. 1,174.
COMMON-LAW ASSIGNMENTS. Such forms of
assignments for the benefit of creditors as were
known to the common law, as distinguished from
such as are of modern invention or authorized by
statute. Ontario Bank v. Hurst, C.C.A.Mich., 103
F. 231, 43 C.C.A. 193.
COMMON-LAW CHEAT. The obtaining of money
or property by means of a false token, symbol,
or device; this being the definition of a cheat or
"cheating" at common law. State v. Renick, 33
Or. 584, 56 Pac. 275, 44 L.R.A. 266, 72 Am.St.Rep.
758.
COMMON-LAW CONTEMPT. A name sometimes
applied to proceedings for contempt which are
criminal in their nature, as distinguished from
those which are intended as purely civil remedies
ordinarily arising out of the alleged violation of
some order entered in the course of a chancery
proceeding. People v. Samuel, 199 Ill.App. 294,
297; People v. Buconich, 199 Ill.App. 410, 412.
COMMON-LAW COURTS. In England, those administering the common law. Equitable L. Assur.
Soc. v. Paterson, 41 Ga. 364, 5 Am.Rep. 535.
COMMON-LAW CRIME. One punishable by the
force of the common law, as distinguished from
crimes created by statute. In re Greene, C.C.
Ohio, 52 F. 104.
COMMON-LAW JURISDICTION. Jurisdiction of
a court to try and decide such cases as were cognizable by the courts of law under the English
common law; the jurisdiction of those courts
which exercise their judicial powers according to
the course of the common law. U. S. v. Power,
27 Fed.Cas. 607.
COMMON-LAW LARCENY. See Larceny.
COMMON-LAW LIEN. One known to or granted
by the common law, as distinguished from statutory, equitable, and maritime liens; also one arising by implication of law, as distinguished from
one created by the agreement of the parties. The
Menominie, D.C.Minn., 36 F. 197; Tobacco Warehouse Co. v. Trustee, 117 Ky. 478, 78 S.W. 413, 64
L.R.A. 219.
It is a right extended to a person to retain that
which is in his possession belonging to another,
until the demand or charge of the person in possession is paid or satisfied. Whiteside v. Rocky
Mountain Fuel Co., C.C.A.Colo., 101 F.2d 765, 769;
Goldwater v. Mendelson, 8 N.Y.S. 627, 629, 170
Misc. 422.
COMMON-LAW MARRIAGE. One not solemnized in the ordinary way, but created by an agreement to marry, followed by cohabitation; a consummated agreement to marry, between persons
legally capable of making marriage contract, per
verba de prwsenti, followed by cohabitation. Collins v. Hoag and Rollins, 121 Neb. 716, 238 N.W.
351 •
There must be a public and continued recognition of such
relation by the parties as distinguished from occasional or
incidental recognition. Whitaker v. Shenault, Tex.Civ.
App., 172 S.W. 202, 203.
346
COMMONS
COMMON-LAW MORTGAGE. One possessing
the characteristics or fulfilling the requirements
of a mortgage at common law; not known in
Louisiana, where the civil law prevails; but such
a mortgage made in another state and affecting
lands in Louisiana, will be given effect there as
a "conventional" mortgage, affecting third persons after due inscription. Gates v. Gaither, 46
La.Ann. 286, 15 So. 50.
COMMON-LAW PROCEDURE ACTS. Three acts
of parliament, passed in the years 1852, 1854, and
1860, respectively, for the amendment of the procedure in the common-law courts. The commonlaw procedure act of 1852 is St. 15 & 16 Vict. c.
76; that of 1854, St. 17 & 18 Vict. c. 125; and that
of 1860, St. 23 & 24 Vict. c. 126. Mozley & Whitley.
COMMON-LAW REMEDY. This phrase, within
the meaning of U. S. Judicial Code 1911, § 256
( Act March 3, 1911, c. 231, 36 Stat. 1100, see Historical and Revision Notes under 28 U.S.C.A. §
1333), was not limited to remedies in the common-law courts, but embraced all methods of enforcing rights and redressing injuries known to
the common or statutory law. Kennerson v.
Thames Towboat Co., 89 Conn. 367, 94 A. 372, 375,
L.R.A. 1916A, 436. See, also, Northern Pacific S.
S. Co. v. Industrial Acc. Commission of California,
174 Cal. 346, 163 P. 199, 202. See Notes of Decisions under 28 U.S.C.A. § 1333.
The "right of a common-law remedy," saved to suitors
in actions maritime in their nature arising under charter
parties by U. S. Judicial Code 1911, § 24, par. 3 (see Historical and Revision Notes under 28 U.S.C.A. § 1333) did
not include attempted changes by the states in the substantive admiralty law, but did include all means, other than
proceedings in admiralty, which may be employed to
enforce the right or to redress the injury involved, and
included remedies in pais, as well as proceedings in court;
judicial remedies conferred by statute, as well as those
existing in the common law; remedies in equity, as well
as those enforceable in a court of law. Red Cross Line v.
Atlantic Fruit Co., 44 S.Ct. 274, 277, 264 U.S. 109, 68 L.Ed.
582.
COMMON-LAW TRADE-MARK. One appropriated under common-law rules, regardless of statutes.
Stratton & Terstegge Co. v. Stiglitz Furnace Co.,
258 Ky. 678, 81 S.W.2d 1, 3.
COMMON-LAW WIFE. A woman who was party
to a "common-law marriage," as above defined;
or one who, having lived with a man in a relation
of concubinage during his life, asserts a claim,
after his death, to have been his wife according
to the requirements of the common law. In re
Brush, 49 N.Y.S. 803, 25 App.Div. 610.
COMMON LAWYER. A lawyer learned in the
common law.
COMMON NIGHTWALKER. See Night Walkers.
COMMON NUISANCE. A danger or damage
threatening the public. Canfield v. Quayle, 10 N.
Y.S.2d 781, 784, 170 Misc. 621.
COMMON OPINION IS GOOD AUTHORITY IN
LAW. Co.Litt. 186a, Bank of Utica v. Mersereau,
3 Barb.Ch. (N.Y.) 528, 577, 49 Am.Dec. 189.
COMMON PLEAS. The name of a court of record
having general original jurisdiction in civil suits.
COMMON PLEAS, THE COURT OF. See Court
of Common Pleas.
COMMON RECOVERY. In conveyancing. A species of common assurance, or mode of conveying
lands by matter of record, formerly in frequent
use in England. It was in the nature and form
of an action at law, carried regularly through,
and ending in a recovery of the lands against the
tenant of the freehold; which recovery, being a
supposed adjudication of the right, bound all persons, and vested a free and absolute fee-simple in
the recoverer. 2 Bl.Comm. 357. Christy v. Burch,
25 Fla. 942, 2 So. 258. Common recoveries were
abolished by the statutes 3 & 4 Wm. IV. c. 74.
They were resorted to when the object was to create an
absolute bar of estates tail, and of the remainders and reversions expectant on the determination of such estates. 2
BlaComm. 357. Though it has been used in some of the
states, this form of conveyance is practically obsolete,
easier and less expensive modes of making conveyances
having been substituted. Frost v. Cloutman, 7 N. H. 9, 26
Am. Dec. 723.
COMMONABLE. Entitled to common. Commonable beasts are either beasts of the plow, as horses and oxen, or such as manure the land, as kine
and sheep. Beasts not commonable are swine,
goats, and the like. Co. Litt. 122a; 2 Bl.Comm. 33.
COMMONALTY. The great body of citizens; the
mass of the people, excluding the nobility.
The body of people composing a municipal corporation, excluding the corporate officers.
The body of a society or corporation, as distinguished from the officers. 1 Perr. & D. 243.
Charters of incorporation of the various tradesmen's societies, etc., in England are usually granted to the master,
wardens, and commonalty of such corporation.
COMMONANCE. The commoners, or tenants and
inhabitants, who have the right of common or
commoning in open field. Cowell.
COMMONERS. In English law. Persons having
a right of common. So called because they have
a right to pasture on the waste, in common with
the lord. 2 H.B1. 389.
COMMONS. The class of subjects in Great
Britain exclusive of the royal family and the nobility. They are represented in parliament by the
house of commons.
Part of the demesne land of a manor, (or land
the property of which was in the lord,) which,
being uncultivated, was termed the "lord's waste,"
and served for public roads and for common of
pasture to the lord and his tenants. 2 Bl.Comm.
90.
Squares; pleasure grounds and spaces or open
places for public use or public recreation owned
by towns ;—in modern usage usually called
"parks." Jones v. City of Jackson, 104 Miss. 449,
61 So. 456, 457.
COMMONS, HOUSE OF. See House of Commons.
347
COMMONTY
COMMONTY. In Scotch law. Land possessed in
common by different proprietors, or by those having acquired rights of servitude. Bell.
COMMONWEALTH. The public or common weal
or welfare. This cannot be regarded as a technical term of public law, though often used in political science. It generally designates, when so
employed, a republican frame of government,—
one in which the welfare and rights of the entire
mass of people are the main consideration, rather than the privileges of a class or the will of
a monarch; or it may designate the body of citizens living under such a government.
Sometimes it may denote the corporate entity,
or the government, of a jural society (or state)
possessing powers of self-government in respect
of its immediate concerns, but forming an integral
part of a larger government, (or nation.) State
v. Lambert, 28 S.E. 930, 44 W.Va. 308.
In this latter sense, it is the official title of several of
the United States (as Pennsylvania, Massachusetts, Virginia, and Kentucky), and would be appropriate to them
all. In the former sense, the word was used to designate
the English government during the protectorate of Cromwell.
See Government; Nation; State.
COMMORANCY. The dwelling in any place as
an inhabitant; which consists in usually lying
there. 4 Bl.Comm. 273. In American law it is
used to denote a mere temporary residence. Pullen v. Monk, 82 Me. 412, 19 A. 909; Gilman v. Inman, 85 Me. 105, 26 A. 1049.
COMMORANT. Staying or abiding; dwelling
temporarily in a place. One residing in a particular town, city, or district. Barnes, 162.
COMMORIENTES. Several persons who perish
at the same time in consequence of the same
calamity.
tical disorders, not to an economic disturbance.
The Poznan, D.C.N.Y., 276 F. 418, 427.
COMMUNE, adj. Lat. See Communis.
COMMUNE, n. A self-governing town or village.
The name given to the committee of the people
in the French revolution of 1793; and again, in
the revolutionary uprising of 1871, it signified the
attempt to establish absolute self-government in
Paris, or the mass of those concerned in the attempt. In old French law, it signified any Municipal corporation. And in old English law, the
commonalty or common people. 2 Co.Inst. 540.
COMMUNE CONCILIUM. The King's Council.
See Privy Council.
COMMUNE CONCILIUM REGNI. The common
council of the realm. One of the names of the
English parliament. See Communitas Regni AnCOMMUNE FORUM. The common place of justice. The seat of the principal courts, especially
those that are fixed.
COMMUNE PLACITUM. In old English law. A
common plea or civil action, such as an action of
debt.
COMMUNE VINCULUM. A common or mutual
bond. Applied to the common stock of consanguinity, and to the feodal bond of fealty, as the
common bond of union between lord and tenant.
2 Bl.Comm. 250; 3 Bl.Comm. 230.
COMMUNI CUSTODIA. In English law. An obsolete writ which anciently lay for the lord, whose
tenant, holding by knight's service, died, and left
his eldest son under age, against a stranger that
entered the land, and obtained the ward of the
body. Reg. Orig. 161.
COMMORTH, or COMORTH. A contribution
which was gathered at marriages, and when
young priests said or sung the first masses. Prohibited by 26 Hen. VIII. c. 6. Cowell.
COMMUNI DIVIDUNDO. In the civil law. An
action which lies for those who have property
in common, to procure a division. It lies where
parties hold land in common but not in partnership. Calvin.
COMMOTE. Half a cantred or hundred in Wales,
containing fifty villages. Also a great seignory
or lordship, and may include one or divers manors.
Co. Litt. 5.
COMMUNIA. In old English law. Common
things, res communes. Such as running water,
the air, the sea, and sea shores. Bract. fol. 7b.
COMMOTION. A "civil commotion" is an insurrection of the people for general purposes, though
it may not amount to rebellion where there is a
usurped power. 2 Marsh.Ins. 793; Boon v. Insurance Co., 40 Conn. 584; Grame v. Assur. Soc., 5
S.Ct. 150, 112 U.S. 273, 28 L.Ed. 716; Spruill v.
Insurance Co., 46 N.C. 127.
A civil commotion is an uprising among a mass
of people which occasions a serious and prolonged
disturbance and infraction of civil order not attaining the status of war or an armed insurrection; it is a wild and irregular action of many
persons assembled together. Hartford Fire Ins.
Co., Hartford, Conn. v. War Eagle Coal Co., C.C.
A.W.Va., 295 F. 663, 665. The term refers to poli-
COMMUNIA PLACITA. In old English law.
Common pleas or actions; those between one
subject and another, as distinguished from pleas
of the crown.
COMMUNIA PLACITA NON TENENDA IN
SCACCARIO. An ancient writ directed to the
treasurer and barons of the exchequer, forbidding
them to hold pleas between common persons (i.
e., not debtors to the king, who alone originally
sued and were sued there) in that court, where
neither of the parties belonged to the same. Reg.
Orig. 187.
COMMUNLE. In feudal law on' the continent of
Europe, this name was given to towns enfran-
348
COMMUNIS
chised by the crown, about the twelfth century,
and formed into free corporations by grants called "charters of community."
COMMUNIBUS ANNIS. In ordinary years; on
the annual average.
COMMUNICATE. To bestow, convey, make
known, recount, impart; to give by way of information. Whitford v. North State Life Ins. Co., 163
N.C. 223, 79 S.E. 501, 502, Ann.Cas.1915B, 270;
Prevost v. Morgenthau, 106 F.2d 330, 334, 70 App.
D.C. 306.
COMMUNICATION. Information given, the sharing of knowledge by one with another; conference; consultation or bargaining preparatory to
making a contract. Intercourse; connection. Also, the Masonic equivalent for the word "meeting." State v. Goodwyn, 83 W.Va. 255, 98 S.E. 577.
Something said by one person to another ;-so used in a
statute providing that neither a party nor his or her spouse
shall be examined as a witness as to personal transactions
or communications between witness and persons since deceased. Secor v. Sl y er, 188 Iowa, 1126, 161 N.W. 769, 772,
176 N.W. 981.
"Transactions and communications," within statute
declaring inadmissible testimony of interested witness concerning transactions and communications between himself
and deceased person, embrace every variety of affairs which
conform to the subject of negotiation, interviews, or actions
between two persons, and include every method by which
one person can derive impressions or information from the
conduct, condition or language of another. Bright v. Virginia & Gold Hill Water Co., C.C.A.Nev., 270 F. 410, 413.
The act of communicating;-so used in a statute declaring that no husband or wife shall be compelled to disclose
any confidential communication made by one to the other
during marriage. Whitford v. North State Life Ins. Co.,
163 N.C. 223, 79 S.E. 501, 502, Ann.Cas.1915B, 270. In a
broader sense, the word embraces all knowledge upon the
part of either obtained by reason of the marriage relations,
and which but for the confidence growing out of such relation would not have been known. Prudential Ins. Co. of
America v. Pierce's Adm'r, 270 Ky. 216, 109 S.W.2d 616, 617.
As used in a statute providing that an attorney cannot,
without the consent of his client, be examined as to any
communication made by the client, "communication" is
not restricted to mere words but includes acts as well. Ex
parte McDonough, 170 Cal. 230, 149 P. 566, 567, L.R.A.
1916C, 593, Ann.Cas.1916E, 327.
French Law
The production of a merchant's books, by delivering them either to a person designated by
the court, or to his adversary, to be examined in
all their parts, and as shall be deemed necessary
to the suit. Arg. Fr. Merc. Law, 552.
-Confidential communications. These are certain
classes of communications, passing between persons who stand in a confidential or fiduciary relation to each other, (or who, on account of their
relative situation, are under a special duty of secrecy and fidelity,) which the law will not permit
to be divulged, or allow them to be inquired into
in a court of justice, for the sake of public policy
and the good order of society. Examples of such
privileged relations are those of husband and wife
and attorney and client. Hatton v. Robinson, 14
Pick.Mass. 416, 25 Am.Dec. 415; Parker v. Carter,
4 Munf.Va. 287, 6 Am.Dec. 513; Parkhurst v. Berdell, 110 N.Y. 386, 18 N.E. 123, 6 Am.St.Rep. 384.
-Privileged communication. In the law of evidence. A communication made to a counsel, solicitor, or attorney, in professional confidence, and
which he is not permitted to divulge; otherwise
called a "confidential communication." 1 Starkie,
Ev. 185.
In the law of libel and slander. A defamatory
statement made to another in pursuance of a duty,
political, judicial, social, or , personal, so that an
action for libel or slander will not lie, though thestatement be false, unless in the last two cases
actual malice be proved in addition. Bacon v.
Railroad Co., 66 Mich. 166, 33 N.W. 181; 5 E. &
B. 347.
When a communication is fairly made by one in the discharge of a public or private duty, legal, moral, or social,
of perfect or imperfect obligation, or in the conduct of his
own affairs, to one who has a corresponding interest to
receive such communication, it is "privileged," International & G. N. Ry. Co. v. Edmundson, Tex.Com.App., 222
S. W. 181, 183, if made in good faith and without actual
malice, Baker v. Clark, 186 Ky. 816, 218 S.W. 280, 285. A
"privileged communication" is one made in good faith,
upon any subject-matter in which the party communicating
has an interest, or in reference to which he has, or honestly believes he has, a duty, and which contains matter
which, without the occasion upon which it is made, would
be defamatory and actionable. Peak v. Taubman, 251 Mo.
390, 158 S. W. 656, 663. In a "privileged communication"
the words used, if defamatory and libelous, are excused,
while in "fair comment" the words are not a defamation
of plaintiff and not libelous. Van Lonkhuyzen v. Daily
News Co., 203 Mich. 570, 170 N.W. 93, 99.
Privileged communications are either (1) absolutely privileged, or (2) conditionally or qualifiedly privileged.
Grantham v. Wilkes, 135 Miss. 777, 100 So. 673. An "absolutely privileged communication" is one made in the interest of the public service or the due administration of justice, and is practically limited to legislative and judicial
proceedings and other actions of state. Grantham v.
Wilkes, 135 Miss. 777, 100 So. 673. By an "absolutely privileged" publication is not to be understood a publication
for which the publisher is in no wise responsible, but it
means a publication in respect of which, by reason of the
occasion upon which it is made, no remedy can be had in a
civil action for slander or libel, Peterson v. Cleaver, 105
Neb. 438, 181 N.W. 187, 189, 15 A.L.R. 447, even though the
words are published maliciously and with knowledge of
their falsity, Spencer v. Looney, 116 Va. 767, 82 S.E. 745,
747. A "qualifiedly privileged communication" is a
slanderous statement uttered in good faith upon a proper
occasion and from a proper motive based upon an honest
belief that it is true, but, unlike communications wholly
privileged, the defendant has the burden of proving want
of malice or ill will. Peak v. Taubman, 251 Mo. 390, 158
S. W. 656, 665. A communication "qualifiedly privileged"
is one which is prima facie privileged only, and in which
the privilege may be lost by proof of malice in the publication. Spencer v. Looney, 116 Va. 767, 82 S.E. 745, 747.
A communication made in good faith upon any subjectmatter in which the party communicating has an interest
or in reference to which he has a duty, either legal, moral,
or social, if made to a person having a corresponding interest or duty, is "qualifiedly privileged." Peterson v. Cleaver, 105 Neb. 438, 181 N.W. 187, 189, 15 A.L.R. 447; Massee v. Williams, C.C.A.Tenn., 207 F. 222, 230; GermanAmerican Ins. Co. v. Huntley, 62 Okl. 39, 161 P. 815, 818.
COMMUNINGS. In Scotch law. The negotiations preliminary to entering into a contract.
COMMUNIO BONORUM. In the civil law. A
community of goods.
COMMUNION OF GOODS. In Scotch law. The
right enjoyed by married persons in the movable
goods belonging to them. Bell.
COMMUNIS, COMMUNE, adj. Lat. Common.
349
COMMUNIS
COMMUNIS ERROR FACIT JUS. Common error
makes law. 4 Inst. 240; Noy, Max. p. 37, max. 27.
Common error goeth for a law. Finch, Law, b. 1,
c. 3, no. 54. Common error sometimes passes current as law. Broom, Max. 139,440.
What was at first illegal is presumed, when repeated
many times, to have acquired the force of usage; and then
it would be wrong to depart from it. 1 Ld.Raym. 42; 6
Cl. & F. 172; 3 M. & S. 396; Goodman v. Eastman, 4 N.H.
458; Kent v. Kent, 2 Mass. 357; Davey v. Turner, 1 Da11.
13, 1 L.Ed. 15. The converse of this maxim is communis
error non tacit jus. A common error does not make law.
4 Inst. 242; 3 Term 725; 6 Term 564.
COMIVIUNIS OPINIO. Common opinion; general
professional opinion. According to Lord Coke
( who places it on the footing of observance or
usage), common opinion is good authority in law.
Co. Litt. 186a.
COMMUNIS PARIES. In the civil law. A common or party wall. Dig. 8, 2, 8, 13.
COMMUNIS RIXATRIX. In old English law. A
common scold, (q. v.) 4 Bl.Comm. 168.
COMMUNIS SCRIPTURA. In old English law.
A common writing; a writing common to both
parties; a chirograph. Glan. lib. 8, c. 1.
COMMUNIS STIPES. A common stock of descent; a common ancestor.
COMMUNISM. A system of social organization
in which goods are- held in common, the opposite
of the system of private property; communalism,
any theory or system of social organization involving common ownership of agents of production of industry, the latter of which theories is referred to in the popular, use of the word "communism" while the scientific usage sometimes conforms to the first alone and sometimes alternates
between the first and second; also the principles
and theories of the Communist Party, especially
in Soviet Russia. Feinglass v. Reinecke, D.C.Ill.,
48 F.Supp. 438, 440. ,
Any theory or system of social organization involving
common ownership of the agents of production, and some
approach to equality in the distribution of the products of
industry. Webster, Diet. A system by which the state
controls the means of production and the distribution and
consumption of industrial products. Cent.Dict.
An equality of distribution of the physical means of life
and enjoyment as a transition to a still higher standard of
justice that all should work according to their capacity and
receive according to their wants. 1 Mill, Pol.Ec. 248.
COMMUNIST. A supporter of the Paris Commune; in 1871 Communard; , a member of the
Communist Party in any country, especially Soviet
Russia; one who belives in communism. Feinglass v. Reinecke, D.C.I11., 48 F.Supp. 438, 440, 441.
Communist International. See Third International.
COMMUNIST PARTY. A semipolitical party of
recent t years representing the Socialist radical
wing and holding of the tenets and beliefs of
Communism. It has quite generally seceded from
the Socialists, organizing in many countries but
chiefly in Russia. Garriga v. Richfield, 20 N.Y.S.
2d 544, 547, 174 Misc. 315.
COMMUNITAS REGNI ANGLIZE. The general
assembly of the kingdom of England. One of the
ancient names of the English parliament. 1 Bl.
Comm. 148. See, also, Commune Concilium Regni.
COMMUNITY. Neighborhood; vicinity, synonymous with locality. Conley v. Valley Motor Transit Co., C.C.A.Ohio, 139 F.2d 692, 693. People who
reside in a locality in more or less proximity.
State ex inf. Thompson ex rel. Kenneppe v. Scott,
304 Mo. 664, 264 S.W. 369, 370. A society or body
of people living in the same place, under the same
laws and regulations, who have common rights,
privileges, or interests. In re Huss, 126 N.Y. 537,
27 N.E. 784, 12 L.R.A. 620; Sacred Heart Academy
of Galveston v. Karsch, 122 S.W.2d 416, 417, 173
Tenn. 618.
It connotes a congeries of common interests arising from
associations—social, business, religious, governmental,
scholastic, recreational. Lukens Steel Co. v. Perkins, 107
F.2d 627, 631, 70 App.D.C. 354.
The term "community," as used in a statute proNlding
that communities may be incorporated for the purpose of
supplying inhabitants with water, should be construed to
include all the inhabitants of a district having a community
of interest in obtaining for themselves in common a water
supply for domestic use. Hamilton v. Rudeen, 112 Or.
268, 224 P. 92, 93.
In connection with the rule requiring, for purposes of
i mpeachment, a knowledge of the character of the witness
in the community or neighborhood in which he resides, the
term "community" means, generally, where the person is
well known and has established a reputation. Craven v.
State, 22 Ala.App. 39, 111 So. 767, 769.
Civil Law
A corporation or body politic. Dig. 3, 4.
French Law
A species of partnership which a man and a
woman contract when they are lawfully married
to each other. See, also, Community Property,
infra.
Conventional community is that which is formed by express agreement in the contract of marriage.
By this contract the legal community which would otherwise subsist may be modified as to the proportions which
each shall take, and as to the things which shall compose it.
Legal community is that which takes place by
virtue of the contract of marriage itself.
The French system of community property was known
as the dotal system, and the Spanish as the ganancial system. The conquest of Mexico by the Spaniards and their
acquisition of the Florida territory resulted in the introduction on American soil of the Spanish system, which
now prevails, usually in a somewhat modified form, in
Texas, California, Nevada, Arizona, Washington, Idaho,
New Mexico, Porto Rico, and the Philippines. Ballinger,
Com.Property, § 6; Chavez v. McKnight, 1 N.M. 147. The
Louisiana Code has, with slight modifications, adopted the
dotal system of the Code Nepoleon as regards the separate
rights of husband and wife, but as to their common property, it retained the essential features of the Spanish
ganancial system.
COMMUNITY ACCOUNT. A bank account consisting of separate and community funds commingled in such manner that neither can be distinguished from the other. Smith V. Buss, 135
Tex. 566, 144 S.W.2d 529, 532.
350
COMPACT
"Commutation" is also distinguishable from a "reprieve"
CO3DIUNITY DEBT. One chargeable to the corn- •
or "respite," meaning simply the withholding of a senmunity (of husband and wife) rather than to eitence for an interval of time, a postponement of execution,
ther of the parties individually. Calhoun v. Leary,
or a temporary suspension of execution. State v. District
Court of Eighteenth Judicial Dist. in and for Maine
6 Wash. 17, 32 P. 1070.
County, 73 Mont. 541, 237 P. 525, 527.
COMMUNITY HOUSE. A house occupied by two
or more families. Fox v. Sumerson, 338 Pa. 545,
13 A.2d 1, 2.
Civil Law
The conversion of the right to receive a variable
or periodical payment into the right to receive a
fixed or gross payment; a substitution of one sort
of payment for another, or of money payment
in lieu of a performance of a compulsory duty or
labor. Commutation may be effected by private
agreement, but it is usually done under a statute.
Steinacher v. Swanson, 131 Neb. 439, 268 N.W.
317, 321.
COMMUNITY OF INTEREST. Term as applied
to relation of joint adventure means interest common to both or all parties, that is, mixture or
identity of interest in venture wherein each and
all are .reciprocally concerned and from which
each and all derive material benefit and sustain
a mutual responsibility. Carboneau v. Peterson,
1 Wash.2d 347, 95 P.2d 1043, 1055.
COMMUTATION OF TAXES. Payment of a designated lump sum (permanent or annual) for the
privilege of exemption from taxes, or the settlement in advance of a specific sum in lieu of an ad
valorem tax. Cotton Mfg. Co. v. New Orleans, 31
La.Arrn. 440.
COMMUNITY OF PROFITS. This term, as used
in the definition of a partnership, (to which a community of profits is essential,) means a proprietorship in them as distinguished from a personal
claim upon the other associate, a property right
in them from the start in one associate as much
as in the other. Moore v. Williams, 26 Tex.Civ.
App. 142, 62 S.W. 977.
COMMUTATION OF TITHES. Signifies the conversion of tithes into a fixed payment in money.
COMMUTATION TICKET. A railroad ticket giving the holder the right to travel at a certain rate
for a limited number of trips (or for an unlimited
number within a certain period of time) for a less
amount than would be paid in the aggregate for
so many separate trips. Interstate Commerce
Com'n v. Baltimore & 0. R. Co., C.C.Ohio, 43 F.
56.
COMMUNITY PROPERTY. Property owned in
common by a husband and wife as a kind of marital partnership. Coleman v. Coleman, Tex.Civ.
App., 293 S.W. 695, 699. Property acquired by
husband and wife, or either, during marriage,
when not acquired as the separate property of
either. In re Lux's Estate, 114 Cal. 73, 45 P. 1023;
Mitchell v. Mitchell, 80 Tex. 101, 15 S.W. 705;
Ames v. Hubby, 49 Tex. 705; Holyoke v. Jackson,
3 Wash.T. 235, 3 P. 841; Civ. Code Cal. § 687.
This partnership or community consists of the profits of
all the effects of which the husband has the administration
and enjoyment, either of right or in fact, of the produce of
the reciprocal industry and labor of both husband and wife,
and of the estates which they may acquire during the
marriage, either by donations made jointly to them both, or
by purchase, or in any other similar way, even although
the purchase be only in the name of one of the two, and
not of both, because in that case the period of time when
the purchase is made is alone attended to, and not the
person who made the purchase. Rev.Civ.Code La. arts.
2402, 2404; Brown v. Cobb, 10 La. 172; Barnes v. Thompson, 154 La. 1036, 98 So. 657, 658.
COMMUTATION. Alteration; change; substitution; the act of substituting one thing for another. Steinacher v. Swanson, 131 Neb. 439, 268
N.W. 317,. 321.
Criminal Law
The change of a punishment from a greater to
a less; as from hanging to imprisonment. People v. Jenkins, 325 Ill. 372, 156 N.E. 290, 292. Fehl
v. Martin, 155 Or. 455, 64 P.2d 631, 632.
Although both a pardon and a commutation are granted
by the sovereign power; Goben v. State, 32 Okl,Cr. 237,
240 P. 1085, 1087; a "commutation" means merely a change
of punishment, while a "pardon" avoids or terminates punishment for crime; Lupo v. Zerbest, C.C.A.Ga., 92 F.2d
362, 364. A pardon bears no relation to the term of punishment, and must be accepted or it is nugatory ; commutation removes no stain, restores no civil privilege, and maybe effected without the consent and against the will of the
prisoner. In re Charles, 115 Kan. 323, 222 P. 606, 608;
Chapman v. Scott, D.C.Conn., 10 F.2d 156, 159.
COMMUTATIVE CONTRACT. In civil law. One
in which each of the contracting parties gives and
receives an equivalent; e. g., the contract of sale.
Pothier, Obl. n. 13; State ex rel. Waterman v. J.
S. Waterman and Co., 178 La. 340, 151 So. 422,
426. See Contract.
COMMUTATIVE JUSTICE, See Justice.
COMPACT, n. An agreement; a contract. Green
v. Biddle, 8 Wheat. 1, 92, 5 L.Ed. 547. Usually
applied to conventions between nations or sovereign states.
A contract between parties, which creates obligations and
rights capable of being enforced, and contemplated as such
between the parties, in their distinct and independent characters. Story, Const. b. 3, c. 3; Rutherf.Inst. b. 2, c.
6, § 1.
A mutual consent of parties concerned respecting some
property or right that is the object of the stipulation, or
something that is to be done or forborne. Chesapeake &
0. Canal Co. v. Baltimore & 0. R. Co., 4 Gill & J., Md., 1.
COMPACT, adj. Closely or firmly united or packed, as the particles of solid bodies; firm; solid;
dense; as a compact texture in rocks; also, lying
in a narrow compass or arranged so as to economize space; having a small surface or border
in proportion to contents or bulk; close; as, a
compact estate; a compact'order or formation of
troops. Wails v. Board of Commissioners of Okmulgee County, 156 Okl. 165, 9 P.2d 946, 948. Concentrated, or near to. Webster v. Toulon Tp. High
School Dist. No. 4, 313 Ill. 541, 145 N.E. 118, 121;
State v. Tindell, 210 P. 619, 621, 112 Kan. 256.
351
COMPACT
COMPACT SCHOOL DISTRICT. One so closely
united and so nearly adjacent to the school building that all the students residing in the district
may conveniently travel from their homes to the
school building and return the same day in a reasonable length of time and with a reasonable degree of comfort. People ex rel. Tudor v. Vance,
29 N.E.2d 673, 675, 374 Iii. 415; People ex rel.
Frailey v. McNeely, 32 N.E.2d 608, 610, 376 Ill. 64.
COMPANAGE. All kinds of food, except bread
and drink. Spelman.
COMPANIES CLAUSES CONSOLIDATION ACT.
An English statute, (8 Vict. c. 16,) passed in 1845,
which consolidated the clauses of previous laws
still remaining in force on the subject of public
companies. It is considered as incorporated into
all subsequent acts authorizing the execution of
undertakings of a public nature by companies,
unless expressly excepted by such later acts. Its
purpose is declared by the preamble to be to avoid
repeating provisions as to the constitution and
management of the companies, and to secure
greater uniformity in such provisions. Wharton.
COMPANION OF THE GARTER. One of the
knights of the Order of the Garter.
COMPANIONS. In French law. A general term,
comprehending all persons who compose the crew
of a ship or vessel. Poth. Mar. Cont. no. 163.
COMPANULATE. This term, used to describe
the shape of the cover of a lunch-box containing
a thermos bottle, means bell-shaped. American
Can Co. v. Goldee Mfg. Co., D.C.N.Y., 290 F. 523,
527,
COMPANY. A society or association of persons,
in considerable number, interested in a common
object, and uniting themselves for the prosecution
usually of some commercial or industrial undertaking, or other legitimate business. Mills v.
State, 23 Tex. 303; Smith v. Janesville, 52 Wis.
680, 9 N.W. 789.
The proper signification of the word "company," when
applied to persons engaged in trade, denotes those united
for the same purpose or in a joint concern. It is so commonly used in this sense, or as indicating a partnership,
that few persons accustomed to purchase goods at shops,
where they are sold by retail, would misapprehend that
such was its meaning. Palmer v. Pinkham, 33 Me. 32.
The term is not identical with "partnership," although
every unincorporated society is, in its legal relations, a
partnership. In common use a distinction is made, the
name "partnership" being reserved for business associations of a limited number of persons (usually not more
than four or five) trading under a name composed of their
individual names set out in succession; while "company"
is appropriated as the designation of a society comprising
a larger number of persons, with greater capital, and
engaged in more extensive enterprises, and trading under
a title not disclosing the names of the individuals. Attorney General v. Mercantile Marine Ins. Co., 121 Mass. 525.
Sometimes the word is used to represent those members
of a partnership whose names do not appear in the name
of the firm. See 12 Toullier, 97.
A number of persons united for performing or carrying
on anything jointly. In re Tidewater Coal Exchange,
C.C.A.N.Y., 280 F. 638, 643.
Thus, the term is not necessarily limited to a trading or
commercial body, but may include an unincorporated I
organization to promote fraternity among its members and
provide mutual aid and protection through the payment of
death benefits. In re Order of Sparta, D.C.Pa., 238 F. 437.
"Company" is a generic and comprehensive word, which
may include individuals, partnerships, and corporations.
Asbury v. Town of Albemarle, 162 N.C. 247, 78 S.E. 146,
148, 44 L.R.A.,N.S., 1189; Ellerson v. Grove, C.C.A.N.C., 44
F.2d 493, 497. But not a municipality. City of Los Angeles, Cal., v. Eighth Judicial District Court, 58 Nev. 1, 67
P.2d 1019, 1023.
The word is sometimes applicable to a single individual.
Harger v. Harger, 144 Ark. 375, 222 S.W. 736, 739. But
compare Wood v. Wood, 78 Or. 181, 151 P. 969, 970, L.R.A.
1916C, 251, Ann.Cas.1918A, 226.
Joint Stock Company
An association of individuals for purposes of
profit, possessing a common capital contributed
by the members composing it, such capital being
commonly divided into shares of which each member possesses one or more, and which are transferable by the owner. Shelf. Jt. St. Co. 1. One
having a joint stock or capital, which is divided
into numerous transferable shares, or consists of
transferable stock. Lindl. Partn. 6. A partnership whereof the capital is divided, or agreed to
be divided, into shares so as to be transferable
without the express consent of the co-partners.
Pars. Part. § 435. A quasi partnership, invested
by statutes in England and many of the states
with some of the privileges of a corporation. See
Pennsylvania v. Mining Co., 10 Wall. 556, 19 L.
Ed. 998; L.R. 4 Eq. 695. It lies midway between
a corporation and a copartnership. Rocky Mountain Stud Farm Co. v. Lunt, 46 Utah, 299, 151 P.
521, 527.
A "joint-stock company" is an entirely different organization from a "corporation," although it has many of the
same characteristics and is often not improperly called a
quasi corporation, especially under particular statutes, but
in Kentucky it is still what it was at common law, namely,
a hybrid midway between a corporation and a partnership,
that is, it had directors and officers, articles of association,
a common capital divided into shares which represented the
interests of the members and are transferable without the
consent of the other members so that the death of a member does not dissolve the company—but, on the other hand,
each member was liable for the debts of the concern, so
that such company had characteristics of both a corporation and a partnership. Roller v. Madison, 172 Ky. 693, 189
S. W. 914, 915.
Limited Company
A company in which the liability of each shareholder is limited by the number of shares he has
taken, so that he cannot be called on to contribute
beyond the amount of his shares. In England, the
memorandum of association of such company may
provide that the liability of the directors, manager, or managing director thereof shall be unlimited. 30 & 31 Vict. c. 131; 1 Lindl. Partn. 383;
Mozley & Whitley.
Public Company
In English law. A business corporation; a society of persons joined together for carrying on
some commercial or industrial undertaking.
352
COMPARABLE ACCOMMODATION. Within the
rule that it is the rent generally prevailing on the
freeze date for comparable accommodations in a
COMPENSABLE
defense-rental area that determines rent that may
be charged, two accommodations are "comparable" if they are sufficiently similar to be regarded
by an expert as of substantially equal rental value
or if they are sufficiently similar so that an expert taking as a standard the rent prevailing for
one and making allowances for such differences
as would be reflected in rental value would be
able to determine the appropriate corresponding
rent for the other. Sirianni v. Bowles, Em.App.,
148 F.2d 343, 344.
COMPARATIO LITERARUM. In the civil law.
Comparison of writings, or handwritings. A mode
of proof allowed in certain cases.
COMPARATIVE. Proceeding by the method of
comparison; founded on comparison; estimated
by comparison.
COMPARATIVE INTERPRETATION. That
method of interpretation which seeks to arrive
at the meaning of a statute or other writing by
comparing its several parts and also by comparing
it as a whole with other like documents proceeding
from the same source and referring to the same
general subject. Glenn v. York County, 6 Rich.
(S.C.) 412.
COMPARATIVE JURISPRUDENCE. The study
of the principles of legal science by the comparison of various systems of law.
COMPARATIVE NEGLIGENCE. That doctrine
in the law of negligence by which the negligence
of the parties is compared, in the degrees of
"slight," "ordinary," and "gross" negligence, and
a recovery permitted, notwithstanding the contributory negligence of the plaintiff, when the
negligence of the plaintiff is slight and the negligence of the defendant gross, but refused when
the plaintiff has been guilty of a want of ordinary
care, thereby contributing to his injury, or when
the negligence of the defendant is not gross, but
only ordinary or slight, when compared, under
the circumstances of the case, with the contributory negligence of the plaintiff. 3 Amer. & Eng.
Enc. Law, 367. St. Louis & S. F. R. Co. v. Elsing,
37 Okl. 333, 132 P. 483, 486.
Where negligence by both parties is concurrent and contributes to injury, recovery is not barred under such doctrine, but plaintiff's damages are diminished proportionately, provided his fault is less than defendant's, and that,
by exercise of ordinary care, he could not have avoided
consequences of defendant's negligence after it was or
should have been apparent. Rogers v. McKinley, 48
Ga.App. 262, 172 S.E. 662, 664.
COMPARISON OF HANDWRITING. A comparison by the juxtaposition of two writings, in order,
by such comparison, to ascertain whether both
were written by the same person.
A method of proof resorted to where the genuineness of a written document is disputed; it consists in comparing the handwriting of the disputed paper with that of another instrument which
is proved or admitted to be in the writing of the
party sought to be charged, in order to infer, from
their identity or similarity in this respect, that
they are the work of the same hand. Johnson v.
Insurance Co., 105 Iowa, 273, 75 N.W. 101,
Black's Law Dictionary Revised 4th Ed.-23
COMPARATIVE RECTITUDE. Doctrine wherein
relief by divorce is granted to the party least in
fault when both have shown grounds for divorce.
Blankenship v. Blankenship, 51 Nev. 356, 276 P.
9, 10, 63 A.L.R. 1127.
Doctrine does not apply in Nevada.
COMPASCUUM. Belonging to commonage Jus
conipascuum, the right of common of pasture.
COMPASS, THE MARINER'S. An instrument
used by mariners to point out the course of a ship
at sea. It consists of a magnetized steel bar called the "needle," attached to the under side of a
card, upon which are drawn the points of the compass, and supported by a fine pin, upon which it
turns freely in a horizontal plane.
COMPASSING. Imagining or contriving, or plotting. In English law, "compassing the king's
death" is treason. 4 Bl.Comm. 76.
COMPATERNITAS. In the canon law. A kind of
spiritual relationship contracted by baptism.
COMPATERNITY. Spiritual affinity, contracted
by sponsorship in baptism.
COMPATIBILITY. As applied to offices, such relation and consistency between the duties of two
offices that they may be held and filled by one
person.
COMPEAR. In Scotch law. To appear.
COMPEARANCE. In Scotch practice. Appearance; an appearance made for a defendant; an
appearance by counsel. Bell.
COMPEL. To force. Temple Lumber Co. v. Living, Tex.Civ.App., 289 S.W. 746, 749. To oblige.
Texas Electric Ry. v. Jones, Tex.Civ.App., 231 S.
W. 823, 824.
In an allegation that plaintiff was compelled to pay
license taxes, the word "compel" does not necessarily
i mport elements of compulsory payment. Singer Sewing
Mach. Co. v. Teasley, 198 Ala. 673, 73 So. 969, 971; Sinnott
v. District Court in and for Clarke County, 201 Iowa, 292,
207 N.W. 129, 131.
As to compelling a person to testify against himself, see
State v. Backstrom, 117 Kan. 111, 230 P. 306, 308: U. S.
v. Cooper, D.C.Iowa, 288 F. 604, 609; U. S. v. Kailas, D.C.
Wash., 272 F. 742, 751; U. S. v. Monia, Ill., 317 U.S. 424,
63 S.Ct. 409, 411, 87 L. Ed. 376.
COMPELLATIVUS. An adversary or accuser.
Compendia sunt dispendia. Co. Litt. 305. Abbreviations (or abridgments) are detriments.
COMPENDIUM. An abridgment, synopsis, or digest.
COMPENSABLE DEATH, Within Workmen's
Compensation Acts is one which results to employee from injury by accident arising out of
and in course of employment. Slade v. Willis
Hosiery Mills, 209 N.C. 823, 184 S.E. 844, 845.
COMPENSABLE INJURY. Within Workmen's
Compensation Acts is an injury for which compensation is payable, and date of such an injury is
not time of the accident or occurrence causing
353
COMPENSACION
As used in Workmen's Compensation Acts, "compensation" is distinguishable from "benefits" ; the former applying to an allowance where the employee is only injured,
and the latter applying in case of death. Terry v. General
Electric Co., 232 N.Y. 120, 133 N.E. 373, 374. The term
"compensation" may include ftlneral benefits. Donoho v.
Atlantic Basin Iron Works, 206 N.Y.S. 494, 495, 210 App.
Div. 535. But see Barber v. Estey Organ Co., 100 Vt. 72,
135 A. 1, 2; Industrial Commission v. Hammond, 77 Colo.
414, 236 P. 1006, 1008.
injury, but the time when the right to compensation accrues. S. G. Taylor Chain Co. v. Marianowski, 182 N.E. 584, 585, 95 Ind.App. 120. Muehlhausen Spring Co. v. Szewczyk, 104 Ind.App. 161,
8 N.E.2d 104, 106.
COMPENSACION. In Spanish law. Compensation; set-off. The extinction of a debt by another
debt of equal dignity between persons who have
mutual claims on each other.
COMPENSATIO. Lat. In the civil law. Compensation, or set-off. A proceeding resembling a
set-off in the common law, being a claim on the
part of the defendant to have an amount due to
him from the plaintiff deducted from his demand.
Dig. 16, 2; Inst. 4, 6, 30, 39; 3 Bl.Comm. 305.
COMPENSATIO CRIMINIS. (Set-off of crime or
guilt.) In practice. The compensation or set-off
of one crime against another; the plea of recrimination in a suit for a divorce; that is, that
the complainant is guilty of the same kind of offense with which the respondent is charged. See
1 Hagg.Cons. 144; 1 Hagg.Eccl. 714; Wood v.
Wood, 2 Paige, Ch. (N.Y.) 108, 2 D. & B. 64; Bishop, Marr. & D. §§ 393, 394.
COMPENSATION. Indemnification; payment of
damages; making amends; making whole; giving an equivalent or substitute of equal value;
that which is necessary to restore an injured party to his former position; consideration or price
of a privilege purchased; equivalent in money
for a loss sustained; equivalent given for property taken or for an injury done to another; giving back an equivalent in either money which is
but the measure of value, or in actual value otherwise conferred; recompense in value; recompense
or reward for some loss, injury, or service, especially when it is given by statute; remuneration for the injury directly and proximately caused by a breach of contract or duty; remuneration or satisfaction for injury or damage of every
description; that return which is given for something else. An act which a court orders to be
done, or money which a court or other tribunal
orders to be paid, by a person whose acts or omissions have caused loss or injury to another, in
order that thereby the person damnified may receive equal value for his loss, or be made whole
in respect of his injury. Railroad Co. v. Denman,
10 Minn. 280 (Gil. 208) ; Hughson Condensed Milk
Co. v. State Board of Equalization, 23 Cal.App.2d
281, 73 P.2d 290, 292. For "Extra Compensation"
and "Fair and Reasonable Compensation", see
these titles.
"Compensation" is a misleading term, and is used merely
for lack of a word more nearly expressing the thought of
the law which permits recovery for an imponderable and
intangible thing for which there is no money equivalent.
Stutsman v. Des Moines City Ry. Co., 180 Iowa, 524, 163
N.W. 580, 585.
The word "compensation," as used in Workmen's Compensation Acts, means the money relief afforded an injured
employee or his dependents according to the scale established and for the persons designated in the act, and not
the compensatory damages recoverable in an action at law
for a wrong done or a contract broken. Christensen v.
Morse Dry Dock & Repair Co., 214 N.Y.S. 732, 740, 216
App. Div. 274.
Also that equivalent in money which is paid to
the owners and occupiers of lands taken or injuriously affected by the exercise of the power of
eminent domain. Louisiana and F. Plank Road
Co. v. Pickett, 25 Mo. 535, 539; Oregon Short Line
R. Co. v. Fox, 28 Utah 311, 78 P. 800, 801.
In the constitutional provision for "just compensation"
for property taken under the power of eminent domain,
this term means a payment in money. Any benefit to the
remaining property of the owner, arising from public
works for which a part has been taken, cannot be considered as compensation. Railroad Co. v. Burkett, 42 Ala. 83.
As compared with consideration and damages, compensation, in its most careful use, seems to be between them.
Consideration is amends for something given by consent, or
by the owner's choice. Damages is amends exacted from a
wrong-doer for a tort. Compensation is amends for something which was taken without the owner's choice, yet
without commission of a tort. Thus, one should say, consideration for land sold; compensation for land taken for
a railway; damages for a trespass. But such distinctions
are not uniform. Land damages is a common expression
for compensation for lands taken for public use. Abbott.
"Compensation" is distinguishable from "damages,"
inasmuch as the former may mean the sum which will
remunerate an owner for land actually taken, while the
latter signifies an allowance made for injury to the residue:
but such distinction is not ordinarily observed. Faulkner
v. City of Nashville, 154 Tenn. 145, 285 S.W. 39, 43.
The remuneration or wages given to an employee or, especially, to an officer. Salary, pay,
‘
or emolument. Christopherson v. Reeves, 44 S.D.
634, 184 N.W. 1015, 1019; Higgins v. Glenn, 65
Utah, 406, 237 P. 513, 515.
The ordinary meaning of the term "compensation," as
applied to officers, is remuneration, in whatever form it
may be given, whether it be salaries and fees, or both
combined. State v. Bland, 91 Kan. 160, 136 P. 947, 949. It
is broad enough to include other remuneration for official
services; State ex rel. Emmons v. Farmer, 271 Mo. 306,
196 S. W. 1106, 1108; such as mileage or traveling expenses ;
Leckenby v. Post Printing & Publishing Co., 65 Colo. 443,
176 P. 490, 492; and also the repayment of amounts
expended. Compare, however, People v. Chapman, 225
N.Y. 700, 122 N.E. 240; McCoy v. Handlin, 35 S.D. 487, 153
N.W. 361, 371, L.R.A.1915E, 858, Ann.Cas.1917A, 1046.
But the term is not necessarily synonymous with "salary." See People v. Wemple, 115 N.Y. 302, 22 N.E. 272;
Com. v. Carter, 21 Ky.L.Rep. 1509, 55 S.W. 701; Crawford
County v. Lindsay, 11 Il1.App. 261; Kilgore v. People, 76
Ill. 548.
A "reasonable compensation" is that which will fairly
compensate the laborer when the character of the work and
the effectiveness and ability entering into the service are
considered. Chapman v. A. H. Averill Machinery Co., 28
Idaho, 121, 152 P. 573, 575.
Compensation is not synonymous with "pension," which
is ordinarily a gratuity from the government or some of
its subordinate agencies in recognition of, but not in payment for, past services. Dickey v. Jackson, 181 Iowa 1155,
165 N.W. 387, 389.
The Civil, Scotch, and French Law
Recoupment; set-off. The meeting of two debts
due by two parties, where the debtor in the one
debt is the creditor in the other; that is to say,
where one person is both debtor and creditor to
354
COMPETITION
another, and therefore, to the extent of what is
due to him, claims allowance out of the sum that
he is due. Bell; 1 Kames, Eq. 395, 396.
In order for "compensation" to take place, the two debts
must exist simultaneously and have as their object the
payment of a sum of money or a certain quantity of consumable things of one and the same kind, and the debts
must be equally liquidated and demandable. Blanchard v.
Bank of Morgan City & Trust Co., La.App., 185 So. 120,
122.
Compensation is of three kinds,-legal, or by operation
of law; compensation by way of exception; and by reconvention. Stewart v. Harper, 16 La.Ann. 181; Blanchard v.
Cole, 8 La. 158; 8 Dig. 16, 2; Code, 4, 31; Inst. 4, 6, 30;
Burge, Suret. b. 2, c. 6, p. 181; La.Civ. Code, arts. 22032208 (Civ.Code, arts. 2207-2211).
Criminal Law
Recrimination. See Compensatio Criminis; Recrimination.
"Commutation" and "compensation" in statutes providing for reduction of sentence for good behavior are used
interchangeably. Ryan v. Lawes, 278 N.Y.S. 608, 154 Misc.
572.
COMPENSATION PERIOD. The period fixed by
the Workmen's Compensation Act during which
the injured party is to receive compensation, unless the board reduces the period by correspondingly increasing the amount of weekly compensation. Southern Casualty Co. v. Boykin, Tex.Civ.
App., 298 S.W. 639, 640.
COMPENSATORY DAMAGES. See Damages.
COMPERENDINATIO. In the Roman law. The
adjournment of a cause, in order to hear the parties or their advocates a second time; a second
hearing of the parties to a cause. Calvin.
COMPERTORIUM. In the civil law. A judicial
inquest made by delegates or commissioners to
find out and relate the truth of a cause. Wharton.
COMPERUIT AD DIEM. A plea in bar of an action of debt on a bail bond that the defendant appeared at the day required. For forms, see 5
Wentworth 470; Lilly, Entr. 114; 2 Chit. Pl. 527.
See, generally, Comyns, Dig. Pleader (2 W. 31);
7 B. & C. 478.
COMPETE. To contend emulously, to strive for
the position for which another is striving, to contend in rivalry. People v. Chew, 67 Colo. 394,
179 P. 812, 813; Commonwealth v. Shenandoah
River Light & Power Corporation, 135 Va. 47, 115
S.E. 695, 698. See Competition.
COMPETENCY. In the law of evidence. The
presence of those characteristics, or the absence
of those disabilities, which render a witness legally fit and qualified to give testimony in a court
of justice;-applied, in the same sense, to documents or other written evidence.
Competency differs from credibility. The former is a
question which arises before considering the evidence given by the witness; the latter concerns the degree of
credit to be given to his story. The former denotes the
personal qualification of the witness; the latter his veracity. A witness may be competent, and yet give incredible
testimony; he may be incompetent, and yet his evidence,
if received, be perfectly credible. Competency is for the
court; credibility for the jury. Yet in some cases the
term "credible" is used as an equivalent for "competent."
Thus, in a statute relating to the execution of wills, the
term "credible witness" is held"to mean one who is entitled
to be examined and to give evidence in a court of justice;
not necessarily one who is personally worthy of belief, but
one who is not disqualified by imbecility, interest, crime,
or other cause. 1 Jarm.Wills, 124; Smith v. Jones, 68 Vt.
132, 34 A. 424; Corn. v. Holmes, 127 Mass. 424, 34 Am.Rep.
391.
In French law. The right in a court to exercise
jurisdiction in a particular case.
COMPETENT. Duly qualified; answering all requirements; having sufficient ability or authority;
possessing the requisite natural or legal qualifications; able; adequate; suitable; sufficient; capable; legally fit. Levee Dist. v. Jamison, 176 Mo.
557, 75 S.W. 679; In re Fichter's Estate, 279 N.Y.
S. 597, 600, 155 Misc. 399. See, also, Incompetency.
A testator may be said to be "competent," if he has
mental capacity to understand the nature of his act, to
understand and recollect the nature and situation of his
property and his relations to persons having claims on his
bounty and whose interests are affected by his will. In
re Smith's Estate, 200 Cal. 152, 252 P. 325, 328.
When generally applied to arbitrators, the term does not
mean "expert." Home Ins. Co. v. Walter, Tex.Civ.App.,
230 S.W. 723, 724.
COMPETENT AND OMITTED. In Scotch practice. A term applied to a plea which might have
been urged by a party during the dependence of
a cause, but which had been omitted. Bell.
COMPETENT AUTHORITY. As applied to
courts and public officers, this term imports jurisdiction and due legal authority to deal with the
particular matter in question. Mitchel v. U. S., 9
Pet. 735, 9 L.Ed. 283; Charles v. Charles, 41 Minn.
201, 42 N.W. 935.
COMPETENT EVIDENCE. That which the very
nature of the thing to be proven requires, as, the
production of a writing where its contents are the
subject of inquiry. 1 Greenl.Ev. § 2; Hill V. Hill,
216 Ala. 435, 113 So. 306, 308; Goltra v. Penland, 45 Or. 254, 77 P. 129, 133. Also, generally, admissible or relevant, as the opposite of "incompetent." Ryan v. Town of Bristol, 63 Conn.
261, 27 A. 309, 312.
COMPETENT COURT. A court, either civil or
criminal, having lawful jurisdiction. People ex
rel. Fisher v. Morhous, 49 N.Y.S.2d 110, 116, 183
Misc. 51.
COMPETENT WITNESS. One who is legally
qualified to be heard to testify in a cause. People
v. Compton, 123 Cal. 403, 56 P. 44; Bank of Uvalde,
Tex.Civ.App., 60 S.W.2d 888, 889. See Competency.
As used in the statute relating to the execution of wills,
the term means a person who, at the time of making the
attestation, could legally testify in court to the facts which
he attests by subscribing his name to the will. In re
Wiese's Estate, 98 Neb. 463, 153 N.W. 556, L.R.A.1915E, 832.
COMPETITION. Rivalry. People ex rel. Broderick v. Goldfogle, 123 Misc. 399, 205 N.Y.S. 870, 877.
The play of contending forces ordinarily engendered by an honest desire for gain. U. S. v. American
Linseed Oil Co., 43 S.Ct. 607, 611, 262 U.S. 371, 67
L.Ed. 1035. The effort of two or more parties,
355
COMPETITION
acting independently, to secure the custom of a
third party by the offer of the most favorable
terms. It is the struggle between rivals for the
same trade at the same time; the act of seeking
or endeavoring to gain what another is endeavoring to gain at the same time. Lipson v. Socony
Vacuum Corporation, C.C.A.Mass., 87 F.2d 265, 270.
Such a collection of statutes differs from a code in this,
that none of the laws so compiled derives any new force
or undergoes any modification in its relation to other statutes in pari materia from the fact of the compilation, while
a code is a re-enactment of the whole body of the positive
law and is to be read and interpreted as one entire and
homogeneous whole.
COMPILED STATUTES. A collection of the
statutes existing and in force in a given state, all
laws and parts of laws relating to each subjectmatter being brought together under one head,
and the whole arranged systematically in one
book, either under an alphabetical arrangement or
some other plan of classification. Railway Co. v.
State, 31 S.E. 531, 104 Ga. 831; Black, Interp.
Laws, p. 363; Fidelity and Columbia Trust Co. v.
Meek, 294 Ky. 122, 171 S.W.2d 41, 44.
As used in a statute taxing moneyed capital competing
with national banks, "competition" means a condition of
business rivalry which arises when moneyed capital is devoted with reasonable continuity and regularity to operations having for their primary and characteristic purpose,
as distinguished from some incidental operations or details,
the transaction of some branch of business which may be
carried on by national banks, and it is not necessary that
this employment shall bring capital into competition with
all of such branches. People ex rel. Pratt v. Goldfogle, 242
N.Y. 277, 151 N.E. 452, 461. The term involves the idea
of struggling to obtain the same thing. First Nat. Bank
v. City of Hartford, 187 Wis. 290, 203 N.W. 721, 729. See,
also, First Nat. Bank v. City of Hartford, 47 S.Ct. 462, 466,
273 U.S. 548, 71 L. Ed. 767, 59 A.L.R. 1.
Unity of object with diversity of method Is the essence
of competition. Continental Securities Co. v. Interborough
Rapid Transit Co., D.C.N.Y., 207 F. 467, 470.
COMPLAINANT. In practice. One who applies
to the courts for legal redress; one who exhibits
a bill of complaint. This is the proper designation
of one suing in equity, though "plaintiff" is often,
used in equity proceedings as well as at law. Benefit Ass'n v. Robinson, 147 Ill. 138, 35 N.E. 168.
Scotch Practice
One who instigates prosecution or who prefers
accusation against suspected person. State v.
Snyder, 93 N.J.L, 18, 107 A. 167, 168.
The contest among creditors claiming on their
respective diligences, or creditors claiming on their
securities. Bell.
Unfair Competition in Trade
See Unfair.
COMPETITIVE CIVIL SERVICE EXAMINA•
TION. Examination which conforms to measures
or standards which are sufficiently objective to be
capable of being challenged and reviewed by other
examiners of equal ability and experience. Fink
v. Finegan, 270 N.Y. 356, 1 N.E.2d 462, 464.
COMPETITIVE BIDDING. Requires that all bidders be placed on a plane of equality, and that
they bid upon the same terms and conditions.
State Highway Commission of Kentucky v. King,
259 Ky. 414, 82 S.W.2d 443.
COMPETITIVE TRAFFIC. Traffic which, as to
any one carrier, originates at a point served also
by another carrier, which other carrier handles
the traffic at equal line-haul rates from origin to
destination. Northern Pac. Ry. Co. v. United
States, D.C.Minn., 41 F.Supp. 439, 441.
COMPETITORS. Persons endeavoring to do the
same thing and each offering to perform the act,
furnish the merchandise, or render the service better or cheaper than his rival. Continental Securities Co. v. Interborough Rapid Transit Co., D.C.
N.Y., 207 F. 467, 470.
COMPILATION. A literary production composed
of the works of others and arranged in a methodical manner.
A compilation consists of selected extracts from different
authors; an abridgment is a condensation of the views of
one author. Story v. Holcombe, 4 McLean 306, 314, Fed.
Cas.No.13,497.
COMPILE. To copy from various authors into
one work. Story v. Holcombe, 23 Fed.Cas. 171,
174. See Compilation,
COMPLAINT. In civil practice. In those states
having a Code of Civil Procedure, the complaint
is the first or initiatory pleading on the part of
the plaintiff in a civil action. It corresponds to
the declaration in the common-law practice. Code
N.Y. § 141; McMath v. Parsons, 26 Minn. 246, 2
N.W. 703. Its purpose is to give defendant information of all material facts on which plaintiff relies to support his demand. Fox v. Cosgriff, 64
Idaho 448, 133 P.2d 930, 932,
The complaint shall contain : (1) The title of the cause,
specifying the name of the court in which the action is
brought, the name of the county in which the trial is required to be had, and the names of the parties to the action, plaintiff and defendant. (2) A plain and concise
statement of the facts constituting a cause of action, without unnecessary repetition; and each material allegation
shall be distinctly numbered. (3) A demand of the relief
to which the plaintiff supposes himself entitled. If the
recovery of money be demanded, the amount thereof must
be stated. Code N.C.1883, § 233 (C.S. § 506).
Cross-complaint. In code practice. Whenever the defendant seeks affirmative relief against any party, relating
to or depending upon the contract or transaction upon
which the action is brought, or affecting the property to
which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court
subsequently, a cross-complaint.' The cross-complaint must
be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint. Standley v. Insurance Co., 95 Ind. 254; Harrison
v. McCormick, 69 Cal. 616, 11 P. 456; Bank v. Ridpath, 29
Wash. 687, 70 P. 139. This is allowed when a defendant has
a cause of action against a co-defendant, or a person not a
party to the action, and affecting the subject-matter of the
action. The only real difference between a complaint and
a cross-complaint is that the first is filed by the plaintiff
and the second by the defendant. Both contain a statement of the facts, and each demands affirmative relief upon the facts stated. The difference between a counter-claim
and a cross-complaint is that in the former the defendant's
cause of action is against the plaintiff; and the latter,
against a co-defendant, or one not a party to the action;
White v. Reagan, 32 Ark. 290.
In criminal law. A charge, preferred before
a magistrate having jurisdiction, that a person
356
COMPOSITION
COMPLETED OIL WELL. A well finished or
sunk to the depth necessary to find oil, or to such
a depth as, in the absence of oil, precludes a probability of finding it at a further depth. Howard v.
Hughes, 294 Mich. 533, 293 N.W. 740, 743.
named (or an unknown person) has committed a
specified offense, with an offer to prove the fact,
to the end that a prosecution may be instituted.
It is a technical term, descriptive of proceedings
before a magistrate. Hobbs v. Hill, 157 Mass. 556,
32 N.E. 862; In some instances "complaint" is interchangeable with "information." State v. Stafford, 26 Idaho, 381, 143 P. 528, 530; State v. Ritzier, 17 Ohio App. 394, 395. And is often used interchangeably with "affidavit." Hebebrand v.
State, 129 Ohio St. 574, 196 N.E. 412, 415.
COMPLETION. The finishing or accomplishing
in full of something theretofore begun; substantial performance of what one has agreed to do;
state in which no essential element is lacking.
Flad v. Murphysboro & S. I. R. Co., C.C.A.Ill.,
283 F. 386, 390.
COMPLETE, v. To finish; accomplish that which
one starts out to do. Ries v. Williams, 190 Ky.
596, 228 S.W. 40, 41.
COMPLICATED. Consisting of many parts or
particulars not easily severable in thought; hard
to understand or explain; involved, intricate, confused. Niemes v. Niemes, 97 Ohio St. 145, 119
N.E. 503, 505.
COMPLETE, adj. Full; entire; including every
item or element of the thing spoken of, without
omissions or deficiencies; as, a "complete" copy,
record, schedule, or transcript. Bailey v. Martin,
119 Ind. 103, 21 N.E. 346.
Perfect; consummate; not lacking in any element or particular; as in the case of a "complete
legal title" to land, which includes the possession,
the right of possession, and the right of property.
Dingey v. Paxton, 60 Miss. 1054; Ehle v. Quackenboss, 6 Hill N. Y. 537; Versailles Tp. v. Ulm, 152
Pa.Super. 384, 33 A.2d 265, 267.
COMPLICATED FRACTURE. One where flesh
and ligaments get between parts of broken bones,
causing suppuration and preventing union of such
parts. Sang v. City of St. Louis, 262 Mo. 454, 171
S.W. 347, 349.
COMPLICE. One who is united with others in an
ill design; an associate; a confederate; an accomplice.
COMPLY. To yield, to accommodate, or to adapt
oneself to, to act in accordance with. Dragwa v.
Federal Labor Union No. 23070, 41 A.2d 32, 36,
136 N.J.Eq. 172.
COMPLETE AND PERMANENT LOSS OF USE
OF RIGHT ARM. Inability to use in any gainful
activity. Bell & Zoller Mining Co. v. Industrial
Commission, 322 Ill. 395, 153 N.E. 580, 582.
COMPOS MENTIS. Sound of mind. Having use
and control of one's mental faculties.
COMPLETE DETERMINATION OF CAUSE. Determination of every issue so as to render decree
or judgment res judicata. Consolidated Gas Co.
of New York v. Newton, D.C.N.Y., 256 F. 238, 244.
COMPOS SUI. Having the use of one's limbs, or
the power of bodily motion. Si fuit ita compos sui
quod itinerare potuit de loco in locum, if he had
so far the use of his limbs as to be able to travel
from place to place. Bract. fol. 14b.
COMPLETE FRACTURE OF ARM. Breaking of
only one bone in forearm, insufficient. Columbia
Mut. Life Assur. Co. v. Penn, 97 So. 673, 133 Miss.
266.
COMPOSED OF. Formed of; consisting of.
Hoskins Mfg. Co. v. General Electric Co., D.C.I11.,
212 F. 422, 428.
COMPLETE IN ITSELF. Of a legislative act,
covering entire subject; not amendatory. Minier
v. Burt County, 95 Neb. 473, 145 N.W. 977, 979.
COMPLETE LOSS OF SIGHT. A . destruction of
ability to perceive, distinguish, and recognize objects to such extent that what remains will not
confer any of benefits of sight or vision to practical and useful extent. Mulcahey v. Brotherhood
of Ry. Trainmen, 229 Mo.App. 610, 79 S.W.2d 759,
765.
COMPLETE PAYMENT. On a contract, the final
payment. Robinson v. U. S., C.C.A.N.Y., 251 F.
461, 466.
COMPLETED. Finished; nothing substantial remaining to be done; state of a thing that has been
created, erected, constructed or done substantially
according to contract. Fox & Co. v. Roman Catholic Bishop of the Diocese of Baker City, 107 Or.
557, 215 P. 178, 179; Taylor Bros. v. Gill, 259 P.
236, 238, 126 Okl. 293, 54 A.L.R. 979; Bayou Meto
Drainage Dist. of Lonoke County v. Ingram, 165
Ark. 318, 264 S.W. 947, 949.
COMPOSITE WORK. Within Copyright Act
means work to which a number of authors have
contributed distinguishable parts. Copyright Act
of 1909, § 24, 17 U.S.C.A. § 24. Shapiro, Bernstein
& Co. v. Bryan, C.C.A.N.Y., 123 F.2d 697, 699.
COMPOSITIO MENSURARUM. The ordinance
of measures. The title of an ancient ordinance,
not printed, mentioned in the statute 23 Hen. VIII,
c. 4; establishing a standard of measures. 1 Bl.
Comm. 275.
COMPOSITIO ULNARUM ET PERTICARUM.
The statute of ells and perches. The title of an
English statute establishing a standard of measures. 1 B1.Comm. 275.
COMPOSITION. An agreement, made upon a
sufficient consideration, between an insolvent or
embarrassed debtor and his creditors, whereby
the latter, for the sake of immediate or sooner
payment, agree to accept a dividend less than the
whole amount of their claims, to be distributed
357
COMPOSITION
pro rata, in discharge and satisfaction of the
whole. Bank v. McGeoch, 92 Wis. 286, 66 N.W.
606; Pioneer Minerals Corporation v. Larabic
Bros. Bankers, 99 Mont. 358, 43 P.2d 884, 886.
"Composition" should be distinguished from.
"accord." The latter properly denotes an arrangement between a debtor and a single creditor for a
discharge of the obligation by a part payment or
on different terms. The former designates an arrangement between a debtor and the whole body
of his creditors (or at least a considerable proportion of them) for the liquidation of their claims
by the dividend offered.
Ancient Law
Among the Franks, Goths, Burgundians, and
other barbarous peoples, this was the name given
to a sum of money paid, as satisfaction for a
wrong or personal injury, to the person harmed,
or to his family if he died, by the aggressor. It
was originally made by mutual agreement of the
parties, but afterwards established by law, and
took the place of private physical vengeance.
COMPOSITION CHIPS. In the metal trade,
"composition chips" or "turnings" are chips without aluminum. Ehrlich v. United Smelting &
Aluminum Co., 252 Mass. 12, 147 N.E. 20.
COMPOSITION DEED. An agreement embodying the terms of a composition between a debtor
and his creditors.
COMPOSITION IN BANKRUPTCY. An arrangement between a bankrupt and his creditors,
whereby the amount he can be expected to pay
is liquidated, and he is allowed to retain his assets, upon condition of his making the payments
agreed upon. Fisher Supply Co. v. Northwestern
Gravel Co., 216 Iowa 909, 249 N.W. 664, 666, 667.
The difference between a common-law "composition with
creditors" and a "composition in bankruptcy" is that in a
composition with creditors the creditors voluntarily release
the principal debtor and therefore release co-debtors, while
in the case of a bankruptcy composition the discharge is
by operation of law and not by act of the creditors who
assent to the composition. Barker v. Ackers, 29 Cal.App.2d
162, 84 P.2d 264, 271.
COMPOSITION OF MATTER. In patent law, a
substance composed of two or more different substances, without regard to form. A mixture or
chemical combination of materials. Jacobs v.
Baker, 7 Wall. 295, 19 L.Ed. 200.
COMPOSITION OF TITHES, OR REAL COMPOSITION. This arises in English ecclesiastical
law, when an agreement is made between the owner of lands and the incumbent of a benefice, with
the consent of the ordinary and the patron, that
the lands shall, for the future, be discharged
from payment of tithes, by reason of some land
or other real recompense given in lieu and satisfaction thereof. 2 Bl.Comm. 28; 3 Steph.Comm.
129.
COMPOTARIUS. In old English law. A party
accounting. Fleta, lib. 2, c. 71, § 17.
COMPOUND, v. To compromise; to effect a
composition with a creditor; to obtain discharge
from a debt by the payment of a smaller sum.
Bank v. Malheur County, 45 P. 781, 30 Or. 420,
35 L.R.A. 141. To put together as elements, ingredients, or parts, to form a whole, to combine,
to unite; to form or make up as a composite
product by combining different elements, ingredients, or parts, as to combine a mediciiie. Depart.
ment of Treasury of Indiana v. Ridgely, 211 Ind.
9, 4 N.E.2d 557, 561, 108 A.L.R. 1067.
COMPOUND, n. A combination of two or more
elements or things by means of human agency;
an artificial or synthetic product. Monticelli
Bros. v. U. S., 8 Ct.Cust.App. 21, 24.
COMPOUND INTEREST. Interest upon interest,
i. e., when the interest of a sum of money is added
to the principal, and then bears interest, which
thus becomes a sort of secondary principal.
Camp v. Bates, 11 Conn. 487; Woods v. Rankin, 2
Heisk. (Tenn.) 46; U. S. Mortg. Co. v. Sperry, C.
C.Ill., 26 F. 730; American Brake Shoe & Foundry
Co. v. Interborough Rapid Transit Co., D.C.N.Y.,
26 F.Supp. 954, 955.
COMPOUND LARCENY. See Larceny.
COMPOUNDER. In Louisiana. The maker of a
composition, generally called the "amicable compounder."
COMPOUNDING A FELONY. The offense committed by a person who, having been directly injured by a felony, agrees with the criminal that
he will not prosecute him, on condition of the latter's making reparation, or on receipt of a reward
or bribe not to prosecute.
The offense of taking a reward for forbearing
to prosecute a felony; as where a party robbed
takes his goods again, or other amends, upon an
agreement not to prosecute. Rieman v. Morrison, 106 N.E. 215, 217, 264 Ill. 279.
COMPRA Y VENTA. In Spanish law. Purchase
and sale.
COMPREMESSO. In Italian. The instrument
whereby parties agree to submit to arbitration
a dispute between them. The equivalent of "cornpromissum" under the Roman Law, the principles
of which have -been carried into the common law
and are to be found in agreements of accord and
satisfaction and compromise and settlement.
Castelli v. Tolibia, 83 N.Y.S.2d 554, 562.
COMPRINT. A surreptitious printing of another
book-seller's copy of a work, to make gain thereby,
which was contrary to common law, and is illegal. Wharton.
COMPRISE. To comprehend; include; contain;
embrace; cover. Hoskins Mfg. Co. v. General
Electric Co., D.C.Ill., 212 F. 422, 428.
COMPRIVIGNI. In the civil law. Children by
a former marriage, (individually called "privigni,"
or "privignce") considered relatively to each other.
358
COMPULSORY
Thus, the son of a husband by a former wife, and
the daughter of a wife by a former husband, are
the comprivigni of each other. Inst. 1, 10, 8.
COMPROMISE. An arrangement arrived at,
either in court or out of court, for settling a dispute upon what appears to . the parties to be equitable terms, having regard to the uncertainty they
are in regarding the facts, or the law and the
facts together. Colburn v. Groton, 66 N.H. 151,
28 A. 95, 22 L.R.A. 763; Isaacs v. Wishnick, 136
Minn. 317, 162 N.W. 297; Joyner v. City of Seattle, 144 Wash. 641, 258 P. 479, 481. A settlement
of differences by mutual concessions or an adjustment of matters in dispute by mutual concessions. Forker v. Berkes, 111 Ind.App. 92, 38 N.
E.2d 296, 299; In re Cusimano's Will, 22 N.Y.S.2d
677, 680, 681, 174"Misc. 1068.
It is essential to a compromise that there be mutual concessions or yielding of opposing claims. Scott v. Scott,
131 Okl. 144, 268 P. 245, 248; Hutson v. McConnell, 139
Okl. 240, 281 P. 760, 763.
In the civil law. An agreement whereby two
or more persons mutually bind themselves to refer their legal dispute to the decision of a designated third person, who is termed "umpire" or
"arbitrator." Dig. 4, 8; Mackeld. Rom. Law, §
471.
OFFER OF COMPROMISE. See Offer, n.
COMPROMISE VERDICT. One which is reached
only by the surrender of conscientious convictions
on one material issue by some jurors in return
for a relinquishment of matters in their like settled opinion on another issue, and the result is
one which does not hold the approval of the entire panel. North British & Mercantile Ins. Co.
v. Parnell, 53 Ga.App. 178, 185 S.E. 122, 126.
COMPROMISSARII SUNT JUDICES. Jenk.
Cent. 128. Arbitrators are judges.
COMPROMISSARIUS. In the civil law. An arbitrator.
COMPROMISSUM. A submission to arbitration.
COMPROMISSUM AD SIMILITUDINEM JUDICIORUM REDIGITUR. A compromise is
brought into affinity with judgments. Strong v.
Strong, 9 Cush. (Mass.) 571.
COMPTE ARRRTR. Fr. An account stated in
writing, and acknowledged to be correct on its
face by the party against whom it is stated. Paschal v. Union Bank of Louisiana, 9 La.Ann. 484.
COMPTER. In Scotch law. An accounting party.
COMPTROLLER. A public officer of a state or
municipal corporation, charged with certain duties in relation to the fiscal affairs of the same,
principally to examine and audit the accounts of
collectors of the public money, to keep records,
and report the financial situation from time to
time. There are also officers bearing this name in
the treasury department of the United States.
Beneficial Loan Soc. of New Orleans v. Straus, La.
App., 148 So. 85, 87.
Comptroller in bankruptcy. An officer in England, whose duty it is to receive from the trustee
in each bankruptcy his accounts and periodical
statements showing the proceedings in the bankruptcy, and also to call the trustee to account for
any misfeasance, neglect, or omission in the discharge of his duties. Robs.Bankr. 13; Bankr.Act
1869, § 55.
Comptrollers of the Hanaper. In English law.
Officers of the court of chancery; their offices
were abolished by 5 & 6 Vict. c. 103.
State comptroller. A supervising officer of
revenue in a state government, whose principal duty is the final auditing and settling of all
claims against the state. State v. Doron, 5 Nev.
413.
COMPULSA. A judicially attested copy of a testimonio. State v. Balli, Tex.Civ.App., 173 S.W.2d
522, 527.
COMPULSION. Constraint; objective necessity;
duress. Forcible inducement to the commission
of an act. Navigation Co. v. Brown, 100 Pa. 346.
The act of compelling or the state of being compelled; the act of driving or urging by force or
by physical or moral constraint; subjection to
force. Fluharty v. Fluharty, Del.Super., 193 A.
838, 840.
The "compulsion" which will excuse a criminal act must
be present, imminent and impending and of such a nature
as to induce a well-grounded apprehension of death or
serious bodily harm. Browning v. State, 31 Ala.App. 137,
13 So.2d 54, 56.
To constitute "compulsion" or "coercion" rendering payment involuntary, there must be some actual or threatened
exercise of power possessed, or supposedly possessed, by
payee over payer's person or property, from which payer
has no means of immediate relief except by advancing
money. Wake Development Co. v. O'Leary, 118 Cal.App.
131, 4 P.2d 802, 803.
COMPULSORY, n. In ecclesiastical procedure, a
compulsory is a kind of writ to compel the attendance of a witness, to undergo examination. Phillirn. Ecc. Law, 1258.
COMPULSORY, adj. Involuntary; forced; coerced by legal process or by force of statute.
COMPULSORY ARBITRATION. That which
takes place where the consent of one of the parties is enforced by statutory provisions. Wood v.
Seattle, 62 P. 135, 23 Wash. 1, 52 L.R.A. 369.
COMPULSORY NONSUIT. An involuntary nonsuit. See Nonsuit.
COMPULSORY PAYMENT. One not made voluntarily, but exacted by duress, threats, the enforcement of legal process, or unconscionably
taking advantage of another. Singer Sewing
Mach. Co. v. Teasley, 73 So. 969, 971, 198 Ala. 673.
COMPULSORY PROCESS. Process to compel
the attendance in court of a person wanted there
as a witness or otherwise; including not only the
ordinary subpoena, but also a warrant of arrest
or attachment if needed. State v. Nathaniel, 52
La.Ann. 558, 26 So. 1008.
359
COMPULSORY
It means such coercive means as the courts, by
virtue of their inherent powers or sanction of the
law, are permitted to employ, Greene v. Ballard,
174 Ky. 808, 192 S.W. 841, 845; and includes right
to have subpoena served, as well as issued (Const.
§ 11). Fugate v. Commonwealth, 202 Ky. 509,
260 S.W. 338, 340.
COMPULSORY SALE OR PURCHASE. A term
sometimes used to characterize the transfer of
title to property under the exercise of the power
of eminent domain. In re Barre Water Co., 62
Vt. 27, 20 A. 109, 9 L.R.A. 195; United States v.
Certain Parcels of Land in City of San Diego, San
Diego County, D.C.Cal., 44 F.Supp: 936, 937.
COMPURGATOR. One of several neighbors of
a person accused of a crime, or charged as a defendant in a civil action, who appeared and swore
that they believed him on his oath. 3 Bl.Comm.
341.
COMPUTING SCALE. A balance having an indicator apparatus so arranged that, within the
limits of weights and prices for which it is contrived, one glance at a printed card, which is a
part thereof, shows not only the weight of the
article, but its price at a given rate per pound.
Standard Computing Scale Co. v. Farrell, D.C.N.
Y., 242 F. 87.
CONATUS QUID SIT, NON DEFINITUR IN
JURE. 2 Bulst. 277. What an attempt is, is not
defined in law.
CONCEAL. To hide; secrete; withhold from the
knowledge of others; to withdraw from observation; to withhold from utterance or declaration;
to cover or keep from sight. Hopper v. Hopkins,
162 Md. 448, 160 A. 166, 167.
The synonyms of conceal are "to hide; disguise, dissemble; secrete." To hide is generic; "conceal" is simply not to make known what we wish to secrete; disguise or
dissemble is to conceal by assuming some false appearance;
to secrete is to hide in some place of secrecy. A man may
conceal facts, disguise his sentiments, dissemble his feelings, or secrete stolen goods. Darneal v. State, 14 Oki.Cr.
540, 174 P. 290, 292, 1 A.L.R. 638.
The word "conceal," according to the best lexicographers, signifies to withhold or keep secret mental facts from
another's knowledge, as well as to hide or secrete physical
objects from sight or observation. Gerry v. Dunham, 57
Me. 339.
CONCEALED. Not synonymous with "lying in.
wait." If a person conceals himself for the purpose of shooting another unawares, he is lying in
wait; but a person may, while concealed, shoot
another without committing the crime of murder. People v. Miles, 55 Cal. 207.
The term "concealed weapons" means weapons willfully or knowingly covered or kept from sight. Owen v.
State, 31 Ala. 387.
COMPUTO. Lat. To compute, reckon, or account. Used in the phrases insimul cornputassent, "they reckoned together," (see Insimul; )
plene computavit, "he has fully accounted," (see
Plene;) quod computet, "that he account," (see
Quod Computet.)
CONCEALERS. In old English law. Such as
find out concealed lands; that is, lands privily
kept from the king by common persons having
nothing to show for them. They are called "a
troublesome, disturbant sort of men; turbulent
persons." Cowell.
COMPUTATION. The act of computing, numbering, reckoning, or estimating. The account or
estimation of time by rule of law, as distinguished
from any arbitrary construction of the parties.
CowelL
CONCEALMENT. A withholding of something
which one knows and which one, in duty, is bound
to reveal. Dolcater v. Manufacturers & Traders
Trust Co., D.C.N.Y., 25 F.Supp. 637, 641; Strauss
v. Dubuque Fire & Marine Ins. Co. of Dubuque,
Iowa, 132 Cal.App. 283, 22 P.2d 582.
COMPUTUS. A writ to compel a guardian, bailiff, receiver, or accountant to yield up his accounts.
It is founded on the statute Westm. 2, c. 12; Reg.
Orig. 135.
COMTE. Fr. A count or earl. In the ancient
French law, the comte was an officer having jurisdiction over a particular district or territory,
with functions partly military and partly judicial.
CON. Adj. A slang or cant abbreviation for
confidence, as a con man or a con game. Webster.
CON. Prep. With. Calef v. Calef, 54 Me. 365,
92 Am.Dec. 549.
CON-. A prefix meaning with, together. Webster.
CON BUENA FE. In Spanish law. With (or in)
good faith.
CONACRE. In Irish practice. The payment of
wages in land, the rent being worked out in labor
at a money valuation. Wharton.
The terms "misrepresentation" and "concealment" have
a known and definite meaning in the law of insurance.
Misrepresentation is the statement of something as fact
which is untrue in fact, and which the assured states,
knowing it to be not true, with an intent to deceive the
underwriter, or which he states positively as true, without
knowing it to be true, and which has a tendency to mislead, such fact in either case being material to the risk.
Concealment is the designed and intentional withholding
of any fact material to the risk, which the assured, in
honesty and good faith, ought to communicate to the underwriter; mere silence on the part of the assured, especially as to some matter of fact which he does not consider it important for the underwriter to know, is not to
be considered as such concealment. If the fact so untruly
stated or purposely suppressed is not material, that is, if
the knowledge or ignorance of it would not naturally influence the judgment of the underwriter in making the
contract, or in estimating the degree and character of the
risk, or in fixing the rate of the premium, it is not a
"misrepresentation" or "concealment," within the clause
of the conditions annexed to policies. Daniels v. Insurance
Co., 12 Cush. (Mass.). 416, 59 Am.Dec. 192; Sun Ins. Office, Limited, of London v. Mallick, 160 Md. 71, 153 A. 35,
43.
CONCEALMENT MAY BE BASIS OF ESTOPPEL, Lo Bue v. Porazzo, 48 Cal.App.2d 82, 119
P.2d 346, 348. Elements 'of such estoppel are
concealment of material facts with knowledge
360
CONCILIUM
word does not imply a warranty; it only creates
a covenant in a lease for years. Co.Litt. 384a.
Koch v. Hustis, 113 Wis. 599, 87 N.W. 834; Vaughan's Argument in Vaughan 126; Butler's note, Co.
Litt. 384. But see 1 Freem. 339, 414.
thereof, ignorance thereof on part of person to
whom representations are made, or from whom
facts are concealed, intention that such person
shall act thereon, and action induced thereby on
his part. Rhoads v. Rhoads, Mo., 119 S.W.2d
247, 152; Rosser v. Texas Co., 173 Okl. 309, 48 P.
2d 3'27, 330.
CONCESSIMUS. Lat. We have granted. A
term used in conveyances, the effect of which was
to create a joint covenant on the part of the
grantors. 5 Co. 16; Bacon, Abr. Covenant.
The doctrine of "estoppel by concealment and suppression" applies only where there has been reduction to practice of invention. Bogoslowsky v. Huse, 142 F.2d 75, 76,
31 C.C.P.A. (Patents) 1034.
CONCEALMENT OF CAUSE OF ACTION. To
constitute it so as to prevent running of limitations, some trick or artifice must be employed to
prevent inquiry or elude investigation, or to mislead and hinder party who has a cause of action
from obtaining information, and acts relied on
must be of an affirmative character and fraudulent. Middleton v. Pruden, 57 Ga.App. 555, 196
S.E. 259, 262.
CONCEDER. Fr. In French ' law. To grant.
See Concession.
CONCEDO. Lat. I grant. A word used in old
Anglo-Saxon grants, and in statutes merchant.
CONCEPTION. The beginning of pregnancy,
(q. v.).
CONCEPTUM. In the civil law. A theft (furtum) was called "conceptum," when the thing
stolen was searched for, and found upon some
person in the presence of witnesses. Inst. 4, 1, 4.
CONCERN. To pertain, relate, or belong to; be
of interest or importance to; have connection
with; to have reference to; to involve; to affect
the interest of. People v. Photocolor Corporation,
281 N.Y.S. 130, 156 Misc. 47.
CONCERNING, CONCERNED. Relating to;
pertaining to; affecting; involving; being substantially engaged in or taking part in. U. S. v.
Fulkerson, D.C.Cal., 74 F. 631; May v. Brown,
3 Barn. & C. 137; People v. Marty, 59 Cal.App.
503, 210 P. 964, 965.
CONCESSIO PER REGEM FIERI DEBET DE
CERTITUDINE. 9 Coke, 46. A grant by the
king ought to be made from certainty.
CONCESSIO VERSUS CONCEDENTEM LATAM
INTERPRETATIONEM HABERE DEBET. A
grant ought to have a broad interpretation (to
be liberally interpreted) against the grantor.
Jenk. Cent. 279.
CONCESSION. A grant; ordinarily applied to
the grant of specific privileges by a government;
French and Spanish grants in Louisiana. Western M. & M. Co. v. Peytona Coal Co., 8 W.Va. 446.
A voluntary grant, or a yielding to a claim or
demand; rebate; abatement. U. S. v. P. Koenig
Coal Co., D.C.Mich., 1 F.2d 738, 740; Williams v.
Belvedere Hotel Co., 137 Md. 665, 113 A. 335, 337,
14 A.L.R. 622.
CONCESSIT SOLVERE. He granted and agreed
to pay. In English law. An action of debt upon
a simple contract. It lies by custom in the mayor's court, London, and Bristol city court.
CONCESSOR. In old English law. A grantor.
CONCESSUM. Accorded; conceded. This term,
frequently used in the old reports, signifies that
the court admitted or assented to a point or proposition made on the argument.
CONCERT OF EUROPE. The union between the
chief powers of Europe for purposes of concerted
action in matters affecting their mutual interests.
It is sometimes called the Primacy of the Great
Powers. It has existed under various forms from
the time of the Congress of Vienna, in 1815.
CONCERT-ROOM. A place in which musical, as
distinguished from dramatic, performances are
usually given. People ex rel. McShane v. Keller,
161 N.Y.S. 132, 138, 96 Misc. 92.
CONCERTED ACTION (or PLAN). Action that
has been planned, arranged, adjusted, agreed on
and settled between parties acting together pursuant to some design or scheme. State v. Jessup
& Moore Paper Co., 4 Boyce (Del.) 248, 88 A. 449,
451; Rock Creek Oil Corporation v. Moore, Tex.
Civ.App., 41 S.W.2d 501, 504.
CONCESSI. Lat. I have granted. At common
law, in a feoffment or estate of inheritance, this
CONCESSIO. In old English law. A grant.
One of the old common assurances, or forms of
conveyance.
CONCESSUS. A grantee.
CONCILIABULUM. A council house.
CONCILIATION. In French law. The formality to which intending litigants are subjected in
cases brought before the juge de paix. The judge
convenes the parties and endeavors to reconcile
them. Should he not succeed, the case proceeds.
In criminal and commercial cases, the preliminary
of conciliation does not take place. Arg. Fr. Mere.
Law, 552.
CONCILIUM. Lat. A council.
Roman Law
A meeting of a section of the people to consider
and decide matters especially affecting itself.
Launspach, State and Family in Early Rome 70.
Also argument in a cause, or the sitting of the
court to hear argument; a motion for a day .for
the argument of a cause; a day allowed to a de-
361
CONCILIUM
Pendant to present his argument; an imparlance.
State ex rel. Stueve v. Reynolds, 266 Mo. 12, 178
S.W. 468, 470.
CONCILIUM ORDINARIUM. In Anglo-Norman
times. An executive and residuary judicial committee of the Aula Regis, (q. v.).
CONCILIUM REGIS. An ancient English tribunal existing during the reigns of Edward L and
Edward II., to which was referred cases of extraordinary difficulty. Co.Litt. 304.
CONCIONATOR. In old records. A common
council man; a freeman called to a legislative
hall or assembly. Cowell.
CONCLUDE. To finish; determine; to estop;
to prevent.
CONCLUDED. Ended; determined; est opped;
prevented from.
CONCLUSION. The end; the termination; the
act of finishing or bringing to a close. The conclusion of a declaration or complaint is all that
part which follows the statement of the plaintiff's
cause of action. The conclusion of a plea is its
final clause, in which the defendant either "puts
himself upon the country" (where a material
averment of the declaration is traversed and issue
tendered) or offers a verification, which is proper
where new matter is introduced. State v. Waters, 1 Mo.App. 7.
Trial Practice
It signifies making the final or concluding address to the jury or the court. The act of a man
by which he has confessed a matter or thing which
he can no longer deny.
This is, in general, the privilege of the party who has
to sustain the burden of proof.
CONCLUSION AGAINST THE FORM OF THE
STATUTE. The proper form for the conclusion
of an indictment for an offense created by statute
is the technical phrase "against the form of the
statute in such case made and provided;" or, in
Latin, contra formam statuti.
CONCLUSION OF FACT. An inference drawn
from the subordinate or evidentiary facts. Maeder Steel Products Co. v. Zanello, 109 Or. 562, 220
P. 155, 158. Reed v. Woodmen of the World, 94
Mont 374, 22 P.2d 819, 822.
CONCLUSION OF LAW. Within the rule that
pleadings should contain only facts, and not conclusions of law, this means a proposition not arrived at by any process of natural reasoning from
a fact or combination of facts stated, but by the
application of the artificial rules of law to the
facts pleaded. Levins v. Rovegno, 71 Cal. 273,
12 P. 161.
CONCLUSION TO THE COUNTRY. In pleading. The tender of an issue to be tried by jury.
Co. Litt. 126 a; 1 Saund. 103; 1 Chit. Pl. 592;
Com. Dig. Pleader, E, 32.
CONCLUSIVE. Shutting up a matter; shutting
out all further evidence; not admitting of explanation or contradiction; putting an end to inquiry;
final; irrefutable; decisive. Edwards v. Shreveport Creosoting Co., 207 La. 699, 21 So.2d 878.
Beyond question or beyond dispute; manifest;
plain; clear; obvious; visible; apparent; indubitable; palpable; and "notorious." Covington
County v. Fite, 120 Miss. 421, 82 So. 308, 309.
As to conclusive "Presumption," and "Proof,"
see those titles.
CONCLUSIVE EVIDENCE. That which is incontrovertible, either because the law does not permit
it to be contradicted, or because it is so strong
and convincing as to overbear all proof to the
contrary and establish the proposition in question beyond any reasonable doubt. Thompson
Lumber Co. v. Interstate Commerce Commission
( Com.Ct.) 193 F. 648, 682.
CONCORD. In the old process of levying a fine
of lands, the concord was an agreement between
the parties (real or feigned) in which the deforciant (or he who keeps the other out of possession) acknowledges that the lands in question
are the right of complainant; and, from the acknowledgment or admission of right thus made,
the party who levies the fine is called the "cognizor," and the person to whom it is levied the
"cognizee." 2 Bl.Comm. 350.
The term also denotes an agreement between
two persons, one of whom has a right of action
against the other, settling what amends shall be
made for the breach or wrong; a compromise or
an accord.
Old Practice
An agreement between two or more, upon a
trespass committed, by way of amends or satisfaction for it. Plowd. 5, 6, 8.
CONCORDARE LEGES LEGIBUS EST OPTIMUS INTERPRETANDI MOMS. To make laws
agree with laws is the best mode of interpreting
them. Halk. Max. 70.
CONCORDAT. In public law. A compact or
convention between two or more independent governments.
An agreement made by a temporal sovereign
with the pope, relative to ecclesiastical matters.
In French law. A compromise effected by a
bankrupt with his creditors, by virtue of which he
engages to pay within a certain time a certain
proportion of his debts, and by which the creditors agree to discharge the whole of their claims
in consideration of the same. Arg. Fr. Merc.
Law, 553.
CONCORDIA. Lat. In old English law. An
agreement, or concord. Fleta, lib. 5, c. 3, § 5.
The agreement or unanimity of a jury. Compellere ad concordiam. Fleta, lib. 4, c. 9, § 2.
CONCORDIA DISCORDANTIUM CANONUM.
The harmony of the discordant canons. A collection of ecclesiastical constitutions made by
362
CONCUSSION
Grattan, an Italian monk, A.D. 1151; more commonly known by the name of "Decretum Gratianti."
with the public, to the injury of a business competitor. Simmons Medicine Co. v. Mansfield Drug
Co., 93 Tenn. 84, 23 S.W. 165.
CONCORDIA PARVIE RES CRESCUNT ET
OPULENTIA LITES. 4 Inst. 74. Small means
increase by concord and litigations by opulence.
CONCURRENT. Running together; having the
same authority; acting in conjunction; agreeing
in the same act or opinion; pursuit of same
course; contributing to the same event; contemporaneous. Brinkman v. Morgan, C.C.A.Kan.,
253 F. 553, 554. Co-operating, accompanying, conjoined, associated, concomitant, joint and equal,
existing together, and operating on the same subject. Rose v. Sprague, 248 Ky. 635, 59 S.W.2d 554,
556. United in agreement. State ex rel. School
Dist. No. 8, v. Lensman, 108 Mont. 118, 88 P.2d
63, 68.
CONCUBARIA. A fold, pen, or place where cattle lie. Cowell.
CONCUBEANT. Lying together, as cattle.
CONCUBINAGE. A species of loose or informal
marriage which took place among the ancients,
and is yet in use in some countries. See Concubinatus.
The act or practice of cohabiting, in sexual
commerce, without the authority of law or a legal
marriage. Succession of Lannes, 187 La. 17, 174
So. 94, 98.
The words concubinage and prostitution have no common
law meaning, but in their popular sense cover all cases of
lewd Intercourse; People v. Cummons, 56 Mich. 544, 23
N.W. 215.
An exception against a woman suing for dower,
on the ground that she was the concubine, and
not the wife, of the man of whose land she seeks
to be endowed. Britt. c. 107.
As to concurrent "Cause," "Covenants," "Insurance," "Lease," "Negligence," "Resolution," and
"Writs," see those titles.
CONCURRENT JURISDICTION. The jurisdiction of several different tribunals, each authorized to deal with the same subject-matter at the
choice of the suitor. Cashman v. Vickers, 69
Mont. 516, 223 P. 897, 898.
CONCUBINATUS. In Roman law. An informal,
unsanctioned, or "natural" marriage, as contradistinguished from the justce nuptice, or justum
matrimonium, the civil marriage.
CONCURRENT LIENS. Maritime liens are concurrent when they are of the same rank, and for
supplies or materials or services in preparation
for the same voyage, or if they arise on different
bottomry bonds to different holders for advances
at the same time for the same repairs, The J.
W. Tucker, D.C.N.Y., 20 F. 132.
CONCUBINE. (1) A woman who cohabits with
a man to whom she is not married. State v. Dusin, 125 Kan. 400, 264 P. 1043, 1044. (2) A sort of
inferior wife, among the Romans, upon whom the
husband did not confer his rank or quality.
CONCURRENT POWER. Political powers exercised independently in the same field of legislation by both federal and state governments.
State ex rel. School Dist. No. 8, v. Lensman, 108
Mont. 118, 88 P.2d 63, 68.
CONCUR. To agree; accord; act together; consent. In the practice of appellate courts, a "concurring opinion" is one filed by one of the judges
or justices, in which he agrees with the conclusions or the result of another opinion filed in the
case (which may be either the opinion of the
court or a dissenting opinion) though he states
separately his views of the case or his reasons for
so concurring. State v. Pierce, 175 Wash. 461, 27
P.2d 1083.
In Louisiana law. To join with other claimants
in presenting a demand against an insolvent estate.
CONCURSO. In the law of Louisiana, the ,name
of a suit or remedy to enable creditors to enforce
their claims against an insolvent or failing debtor.
Schroeder v. Nicholson, 2 La. 355. Litigation or
opportunity of litigation between various creditors, each claiming adversely to one another to
share in a fund or an estate, object being to assemble in one accounting all claimants on the
fund. Seal v. Gano, 160 La. 636, 107 So. 47S, 474.
CONCURATOR. In the civil law. A joint or
co-curator, or guardian.
CONCURRENCE. In French law. The possession, by two or more persons, of equal rights or
privileges over the same subject-matter.
CONCURRENCE DELOYALE. A term of the
French law nearly equivalent to "unfair trade
competition;" and used in relation to the infringement of rights secured by trade-marks, etc. It
signifies a dishonest, perfidious, or treacherous
rivalry in trade, or any manoeuvre calculated to
prejudice the good will of a business or the value
of the name of a property or its credit or renown
CONCURSUS. In the civil law. (1) A running
together; a collision, as concursus creditorum, a
conflict among creditors. Graphic Arts Bldg. Co.
v. Union Indemnity Co., 163 La. 1, 111 So. 470,
471; Miller v. Bonner, 163 La. 332, 111 So. 776, 778;
(2) A concurrence, or meeting, as concursus dctionum, concurrence of actions.
A proceeding in Louisiana similar to interpleader. See Louisiana Molasses Co. v. Le Sassier, 52
La.Ann. 2070, 28 So. 217.
CONCUSS. In Scotch law. To coerce.
CONCUSSIO. In the civil law. The offense of
extortion by threats of violence. Dig. 47, 13.
CONCUSSION. In the civil law. The unlawful
forcing of another by threats of violence to give
something of value. It differs from robbery, in
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CONCUSSION
this: That in robbery the thing is taken by force,
while in concussion it is obtained by threatened
violence. Heinec.Elem. § 1071.
In medical jurisprudence. Concussion of the
brain is a jarring of the brain substance, by a
fall, blow, or other external injury, without laceration of its tissue, or with only microscopical laceration. Mathews v. Hayne, La.App., 188 So. 462,
468.
CONDEDIT. In ecclesiastical law. The name of
a plea entered by a party to a libel filed in the ecclesiastical court, in which it is pleaded that the
deceased made the will which is the subject of
the suit, and that he was of sound mind. 2 Eng.
Ecc. R. 438; 6 Eng. Eec. R. 431.
CONDEMN. To find or adjudge guilty. 3 Leon.
68. To adjudge or sentence. 3 Bl.Comm. 291.
To adjudge (as an admiralty court) that a vessel
is a prize, or that she is unfit for service. 1
Kent, Comm. 102; 5 Esp. 65. To set apart or
expropriate property for public use, in the exercise of the power of eminent domain. State v.
Sayer, 43 S.D. 45, 177 N.W. 807, 809.
CONDEMNATION. In admiralty law. The
judgment or sentence of a court having jurisdiction and acting in rem, by which (1) it is declared
that a vessel which has been captured at sea as
a prize was lawfully so seized and is liable to be
treated as prize; or (2) 'that property which has
been seized for an alleged violation of the revenue
laws, neutrality laws, navigation laws, etc., was
lawfully so seized, and is, for such cause, forfeited to the government; or (3) that the vessel
which is the subject of inquiry is unfit and unsafe
for navigation. Gallagher v. Murray, 9 Fed.Cas.
1087.
In the civil law. A sentence or judgment
which condemns some one to do, to give, or to pay
something, or which declares that his claim or
pretensions are unfounded. Lockwood v. Saffold, 1 Ga. 72; State v. Harr, 24 Tenn.App. 298,
143 S.W.2d 893, 895.
In real property law. The process by which
property of a private owner is taken for public
use, without his consent, but upon the award
and payment of just compensation, being in the
nature of a forced sale and condemner stands toward owner as buyer toward seller. Atlanta, K.
& N. R. Co. v. Southern Ry. Co., C.C.A.Tenn., 131
F. 666, 66 C.C.A. 601; Jones v. Oklahoma City, 192
Okl. 470, 137 P.2d 233, 237, 155 A.L.R. 375.
A. "condemnation proceeding" is a special proceeding at
law to determine in a single action the damages done by
the taking, but it is not a civil action, or a civil process
within the meaning of the statutes relating to civil process.
In re New Haven Water Co., 86 Conn. 361, 85 A. 636, 638.
The law authorizing it must be strictly construed, and
every condition and requirement must be shown to have
been complied with. Richter v. Rodgers, 327 Mo. 543, 37
S.W.2d 523, 528.
CONDEMNATION MONEY. In practice. The
damages which the party failing in an action is
adjudged or condemned to pay; sometimes simply
called the "condemnation."
As used in an appeal bond, this phrase means
the damages which should be awarded against
the appellant by the judgment of the court. It
does not embrace damages not included in the
judgment. Thomas v. Gethman, 91 Old. 42, 215
P. 731, 732.
CONDESCENDENCE. In the Scotch law. A
part of the proceedings in a cause, setting forth
the facts of the case on the part of the pursuer
or plaintiff.
CONDICTIO. In Roman law. A general term
for actions of a personal nature, founded upon an
obligation to give or do a certain and defined
thing or service. It is distinguished from vindicatio rei, which is an action to vindicate one's
right of property in a thing by regaining (or
retaining) possession of it against the adverse
claim of the other party.
CONDICTIO CERTI. An action which lies upon
a promise to do a thing, where such promise or
stipulation is certain, (si certa sit stipulatio.)
Inst. 3, 16, pr.; Id. 3, 15, pr.; Dig. 12, 1; Bract.
fol. 103b.
CONDICTIO EX LEGE. An action arising where
the law gave a remedy, but provided no appropriate form of action. Calvin.
CONDICTIO INDEBITATI. An action which lay
to recover anything which the plaintiff had given
or paid to the defendant, by mistake, and which
he was not bound to give or pay, either in fact
or in law.
CONDICTIO REI FURTIVIE. An action which
lay to recover a thing stolen, against the thief
himself, or his heir. Inst. 4, 1, 19.
CONDICTIO SINE CAUSA. An action which lay
in favor of a person who had given or promised a
thing without consideration,' (causa.) Dig. 12, 7;
Cod. 4, 9.
CONDITIO. Lat. A condition.
CONDITIO BENEFICIALIS, QUIE STATUM
CONSTRUIT, BENIGNE SECUNDUM VERBORUM INTENTIONEM EST INTERPRETANDA;
ODIOSA AUTEM, QUIE STATUM DESTRUIT,
STRICTE SECUNDUM BERBORUM PROPRIETATEM ACCIPIENDA. 8 Coke, 90. A beneficial
condition, which creates an estate, ought to be
construed favorably, according to the intention of
the words; but a condition which destroys an
estate is odious, and ought to be construed strictly according to the letter of the words.
CONDITIO DICITUR, CUM QUID IN CASUM INCERTUM QUI POTEST TENDERE AD ESSE
AUT NON ESSE, CONFERTUR. Co. Litt. 201.
It is called a "condition," when something is given on an uncertain event, which may or may not
come into existence.
CONDITIO ILLICITA HABETUR PRO NON
ADJECTA. An unlawful condition is deemed as
not annexed.
364
CONDITION
CONDITIO PR1ECEDENS ADIMPLERI DEBET
PRIUS QUAM SEQUATUR EFFECTUS. Co.
Litt. 201. A condition precedent must be fulfilled before the effect can follow.
CONDITION. A future and uncertain event upon the happening of which is made to depend the
existence of an obligation, or that which subordinates the existence of liability under a contract
to a certain future event. Standard Surety &
Casualty Co. v. Wynn, Tex.Civ.App., 172 S.W.2d
789, 792; Barber Asphalt Paving Co. v. St. Louis
Cypress Co., 121 La. 152, 46 So. 193, 197.
Civil Law
The rank, situation, or degree of a particular
person in some one of the different orders of society.
An agreement or stipulation in regard to some
uncertain future event, not of the essential nature
of the transaction, but annexed to it by the parties, providing for a change or modification of
their legal relations upon its occurrence. Mackeld. Rom. Law, § 184.
Classification. Conditions are of the following
several kinds:
The casual condition is that which depends on
chance, and is in no way in the power either of
the creditor or of the debtor. Civ.Code La. art.
2023.
A mixed condition is one that depends at the
same time on the will of one of the parties and
on the will of a third person, or on the will of
one of the parties and also on a casual event.
Civ.Code La. art. 2025.
The potestative condition is that which makes
the execution of the agreement depend on an event
which it is in the power of the one or the other
of the contracting parties to bring about or to
hinder. Civ.Code La. art. 2024.
A resolutory or dissolving condition is that
which, when accomplished, operates the revocation of the obligation, placing matters in the same
state as though the obligation had not existed.
It does not suspend the execution of the obligation. It only obliges the creditor to restore what
he has received in case the event provided for in
the condition takes place. Civ.Code La. art. 2045;
Moss v. Smoker, 2 La.Ann. 991.
A suspensive condition is that which depends,
either on a future and uncertain event, or on an
event which has actually taken place, without its
being yet known to the parties. In the former
case, the obligation cannot be executed till after
the event; in the latter, the obligation has its effect from the day on which it was contracted, but
it cannot be enforced until the event be known.
Civ.Code La. art. 2043; New Orleans v. Railroad
Co., 18 S.Ct. 875, 171 U.S. 312, 43 L.Ed. 178; Moss
v. Smoker, 2 La.Ann. 991. A condition which prevents a contract from going into operation until
it has been fulfilled.
Common Law
The rank, situation, or degree of a particular
person in some one of the different orders of society; or his status or situation, considered as a
juridical person, arising from positive law or the
institutions of society. Thill v. Pohlman, 76 Iowa,
638, 41 N.W. 385.
A clause in a contract or agreement which has
for its object to suspend, rescind, or modify the
principal obligation, or, in case of a will, to suspend, revoke, or modify the devise or bequest; a
qualification, restriction, or limitation modifying
or destroying the original act with which it is
connected; an event, fact, or the like that is
necessary to the occurrence of some other, though
not its cause; a prerequisite. Towle v. Remsen, 70 N.Y. 303.
A modus or quality annexed by him that hath
an estate, or interest or right to the same, whereby an estate, etc., may either be defeated, enlarged, or created upon an uncertain event. Co.Litt.
201a.
A qualification or restriction annexed to a conveyance of lands, whereby it is provided that in
case a particular event does or does not happen,
or in case the grantor or grantee does or omits to
do a particular act, an estate shall commence, be
enlarged, or be defeated. Anderson v. Palladine,
39 Cal.App. 256, 178 P. 553, 554.
An "estate on condition" arises where an estate is granted, either in fee simple or otherwise, with an express
qualification annexed, whereby the estate granted shall
either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition.
Hall v. Quinn, 190 N.C. 326, 130 S.E. 18, 20. Moe v. Gier,
116 Cal.App. 403, 2 P.2d 852, 855.
In insurance parlance, the printed conditions on the inside of the policy which serve generally as a limitation of
risk or of liability or impose various conditions requiring
compliance by the insured. Federal Intermediate Credit
Bank of Baltimore v. Globe & Rutgers Fire Ins. Co., D.C.
Md., 7 F.Supp. 56, 68.
Mode or state of being; state or situation; essential quality; property; attribute. Consolidated Arizona Smelting Co. v. Egich, 22 Ariz. 543,
199 P. 132, 134.
Classification. The different kinds of conditions
known to the common law may be arranged and
described as follows:
Express and implied conditions are also called by the
older writers, respectively, conditions in deed (or in fact,
the Law French term being conditions en fait) and conditions in law. Co. Litt. 201a.
They are either express or implied, the former
when incorporated in express terms in the deed,
contract, lease, or grant; the latter, when inferred or presumed by law, from the nature of the
transaction or the conduct of the parties, to have
been tacitly understood between them as a part
of the agreement, though not expressly mentioned. 2 Crabb, Real Prop. p. 792; Bract. fol. 47;
Civ.Code La. art. 2026; Raley v. Umatilla County,
15 Or. 172, 13 P. 890, 3 Am.St.Rep. 142.
They are possible or impossible; the former
when they admit of performance in the ordinary
course of events; the latter when it is contrary
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CONDITION
to the course of nature or human limitations that
they should ever be performed.
They are lawful or unlawful; the former when
their character is not in violation of any rule,
principle, or policy of law; the latter when they
are such as the law will not allow to be made.
They are consistent or repugnant; the former
when they are in harmony and concord with the
other parts of the transaction; the latter when
they contradict, annul, or neutralize the main purpose of the contract. Repugnant conditions are
also called "insensible."
They are affirmative or negative; the former
being a condition which consists in doing a thing;
as provided that the lessee shall pay rent, etc.,
and the latter being a condition which consists in
not doing a thing; as provided that the lessee
shall not alien, etc. Shep. Touch. 118.
They are precedent or subsequent. A condition
precedent is one which must happen or be performed before the estate to which it is annexed
can vest or be enlarged; or it is one which is to
be performed before some right dependent thereon accrues, or some act dependent thereon is performed. Federal Land Bank of Louisville v. Luckenbill, 213 Ind. 616, 13 N.E.2d 531, 533. A "condition precedent" is one that is to be performed
before the agreement becomes effective, and which
calls for the happening of some event or the performance of some act after the terms of the contract have been agreed on, before the contract
shall be binding on the parties. Rogers v. Maloney, 85 Or. 61, 165 P. 357, 358; Mercer-Lincoln Pine
Knob Oil Co. v. Pruitt, 191 Ky. 207, 229 S.W. 374.
A condition subsequent is one annexed to an estate already vested, by the performance of which
such estate is kept and continued, and by the failure or non-performance of which it is defeated;
or it is a condition referring to a future event,
upon the happening of which the obligation becomes no longer binding upon the other party, if
he chooses to avail himself of the condition. Co.
Litt. 201; Carroll v. Carroll's Ex'r, 248 Ky. 386,
58 S.W.2d 670, 672.
Conditions may also be positive (requiring that
a specified event shall happen or an act be done)
and restrictive or negative, the latter being such
as impose an obligation not to do a particular
thing, as, that a lessee shall not alien or sub-let
or commit waste, or the like. Shep. Touch. 118.
They may be single, copulative, or disjunctive.
Those of the first kind require the performance of
one specified thing only; those of the second kind
require the performance of divers acts or things;
those of the third kind require the performance
of one of several things. Shep. Touch. 118.
Conditions may also be independent, dependent,
or mutual. They belong to the first class when
each of the two conditions must be performed
without any reference to the other; to the second
class when the performance of one condition is
not obligatory until the actual performance of
the other; and to the third class when neither
party need perform his condition unless the other is ready and willing to perform his, or, in oth-
er words, when the mutual covenants go to the
whole consideration on both sides and each is precedent to the other. Huggins v. Daley, W.Va., 99
F. 609, 40 C.C.A. 12, 48 L.R.A. 320.
The following varieties may also be noted: A.
condition collateral is one requiring the performance of a collateral act having no necessary relation to the main subject of the agreement. A
compulsory condition is one which expressly requires a thing to be done, as, that a lessee shall
pay a specified sum of money on a certain day or
his lease shall be void. Shep. Touch. 118. Concurrent conditions are those which are mutually
dependent and are to be performed at the same
time. Milwaukee Land Co. v. Ruesink, 50 Mont.
489, 148 P. 396, 401. A condition inherent is one
annexed to the rent reserved out of the land
whereof the estate is made, or rather, to the estate in the land, in respect of rent. Shep. Touch.
118.
French Law
The following peculiar distinctions are made:
(1) A condition is easuelle when it depends on a
chance or hazard; (2) a condition is potestative
when it depends on the accomplishment of something which is in the power of the party to accomplish; (3) a condition is mixte when it depends partly on the will of the party and partly
on the will of others; (4) a condition is suspensive when it is a future and uncertain event, or
present but unknown event, upon which an obligation takes or fails to take effect; (5) a condition is resolutoire when it is the event which
undoes an obligation which has already had effect as such. Brown.
Synonyms Distinguished
A "condition" is to be distinguished from a
limitation, in that the latter may be to or for the
benefit of a stranger, who may then take advantage of its determination, while only the grantor,
or those who stand in his place, can take advantage of a condition. Hoselton v. Hoselton, 166
Mo. 182, 65 S.W. 1005; and in that a limitation
ends the estate without entry or claim, which is
not true of a condition. It also differs from a
conditional limitation. In determining whether,
in the case of estates greater than estates for
years, the language constitutes a "condition" or
a "conditional limitation," the rule applied is that,
where an estate is so expressly limited by the
words of its creation that it cannot endure for any
longer time than until the condition happens on
which the estate is to fail, this is limitation, but
when the estate is expressly granted on condition
in deed, the law permits it to endure beyond the
time of the contingency happening, unless the
grantor takes advantage of the breach of condition, by making entry. Lonas v. Silver, 195 N.Y.
S. 214, 215, 201 App.Div. 383; Yarbrough v. Yarbrough, 151 Tenn. 221, 269 S.W. 36, 38. It differs
also from a covenant, which can be made by either
grantor or grantee, while only the grantor can
make a condition (Co. Litt. 70) ; De Grasse v. Verona Mining Co., 185 Mich. 514, 152 N.W. 242, 246;
The chief distinction between a condition subse-
366
CONDUCT
quent in a deed and a covenant pertains to the
remedy in event of breach, which, in the former
case, subjects the estate to a forfeiture, and in
the latter is merely a ground for recovery of damages. Bartell v. Senger, 160 Md. 685, 155 A. 174,
176. A charge is a devise of land with a bequest
out of the subject-matter, and a charge upon the
devisee personally, in respect of the estate devised, gives him an estate on condition. A condition also differs from a remainder; for, while
the former may operate to defeat the estate before its natural termination, the latter cannot take
effect until the completion of the preceding estate.
CONDITIONAL. That which is dependent upon
or granted subject to a condition.
As to conditional "Acceptance," "Appearance,"
"Bequest," "Contract," "Delivery," "Devise,"
"Fee," "Guaranty," "Judgment," "Legacy," "Limitation," "Obligation," "Pardon," "Privilege," and
"Sale," see those titles.
CONDITIONAL CREDITOR. In the civil law.
A creditor having a future right of action, or having a right of action in expectancy. Dig. 50, 16,
54.
CONDITIONAL INDORSEMENT. See Indorsement.
CONDITIONAL STIPULATION. In the civil
law. A stipulation to do a thing upon condition,
as the happening of any event.
CONDITIONALLY PRIVILEGED COMMUNICATION. One made in good faith on any subject
matter in which the person publishing has an interest, or in reference to which he has a duty, if
made to a person having a corresponding interest
or duty, even though it contains matter which otherwise would be actionable. Cook v. East Shore
Newspapers, 327 Ill.App. 559, 64 N.E.2d 751, 760.
The essential elements of a "conditionally privileged communication" are good faith, an interest
to be upheld, a statement limited in its scope to
such purpose, a proper occasion, and publication
in a proper manner to proper persons. Cook v.
East Shore Newspaper, 327 Ill.App. 559, 64 N.E.
2d 751.
CONDITIONES QUIELIBET ODIOSIE; MAXDIE AUTEM CONTRA MATRIMONIUM ET
COMMERCIUM. Any conditions are odious, but
especially those which are against [in restraint
of ] marriage and commerce. Lofft, Appendix, 644.
CONDITIONS OF SALE. The terms upon which
sales are made at auction; usually written or
printed and exposed in the auction room at the
time of sale.
CONDOMINIA. In the civil law. Co-ownerships
or limited ownerships, such as emphyteusis, su-
perficies, pignus, hypotheca, ususfructus, usus,
and habitatio.
These were more than mere
Jura in re aliend, being portion of the dominium
itself, although they are commonly distinguished
from the dominium strictly so called. Brown.
CONDOMINIUM. System of separate ownership
of individual units in multiple-unit building. Susskind v. 1136 Tenants Corp., 251 N.Y.S.2d 321, 327,
43 Misc.2d 588.
CONDONACION. In Spanish law. The remission of a debt, either expressly or tacitly.
CONDONATION. The conditional remission or
forgiveness, by means of continuance or resumption of marital cohabitation, by one of the married
parties, of a known matrimonial offense committed by the other, that would constitute a cause of
divorce; the condition being that the offense shall
not be repeated. Pain v. Pain, 37 Mo.App. 115.,
Betz v. Betz, 25 N.Y.Super.Ct. 696; State v. Manos, 204 N.C. 52, 167 S.E. 493; Thum v. Thum, 105
Colo. 352, 98 P.2d 279, 280.
"Condonation," to constitute valid defense in divorce
action, must be free, voluntary, and not induced by duress
or fraud; "condonation" means pardon of offense, voluntary overlooking or implied forgiveness by treating offender as if offense had not been committed. Panther v. Panther, 147 Okl. 131, 295 P. 219, 221. The term is also someti mes applied to forgiveness of a past wrong, fault, injury,
or breach of duty in other relations, as, for example, in
that of master and servant. Leatherberry v. Odell, C.C.
N.C., 7 F. 648. Also, antenuptial unchastity is capable of
"condonation." Wesley v. Wesley, 181 Ky. 135, 204 S.W.
165, 166.
CONDONE. To make condonation of.
CONDUCE. To contribute to as a result. Board
of Com'rs of Mercer County v. Deitsch, 94 Ohio
St. 1, 113 N.E. 745, 747.
CONDUCT, v. To manage; direct; lead; have
direction; carry on; regulate; do business. Wichita Film & Supply Co. v. Yale, 194 Mo.App. 60,
184 S.W. 119, 121; State v. Mahfouz, 181 La. 23,
158 So. 609; Scholz v. Leuer, 7 Wash.2d 76, 109
P.2d 294, 301.
CONDUCT, n. Personal behavior; deportment;
mode of action; any positive or negative act.
Kelly v. State, 151 Md. 87, 133 A. 899, 904; Lamborn v. New York Cotton Exch., 197 N.Y.S. 57,
60, 203 App.Div. 565.
CONDUCT, ESTOPPEL BY. An estoppel exists
where a man by his own acts or acceptance is
concluded from saying the truth. Menzenberger
v. American State Bank, 101 Ind.App. 600, 198 N.
E. 819. See, also, Equitable Estoppel.
The doctrine does not apply to an agreement which is illegal. Miller v. California Roofing Co., 55 Cal.App.2d 136,
130 P.2d 740, 745.
Elements or essentials of estoppel are acts done which
cannot be contravened without fraud or gross misconduct,
Tradesmens Nat. Bank of New Haven v. Minor, 190 A. 270,
272, 122 Conn. 419; change of position to injury of party
claiming benefit of estoppel, Mundt v. Mallon, 106 Mont.
244, 76 P.2d 326, 329; Thompson v. Hudgens, 159 S.E. 807,
811, 161 S.C. 450; false representation or concealment,
Marshall v. Wilson, 175 Or. 506, 154 P.2d 547, 553; Hamilton v. Northeast Mut. Ins. Ass'n, Mo.App., 116 S.W.2d 159,
163; ignorance of facts of one claiming right of estoppel,
McCarthy v. Union Pac. Ry. Co., 58 Wyo. 308, 131 P.2d
326, 330, 332; inducement to do or forbear doing, something one would not, or would, otherwise have done,
O'Brien v. U. S., C.C.A.Ind., 51 F.2d 674, 678; intent to
have other party act or conduct calculated to mislead,
Woodmen of the World Life Ins. Soc. v. Greathouse, 242
Ala. 532, 7 So.2d 89, 91; Marshall v. Wilson, 175 Or. 506,
367
CONDUCT
154 P.2d 547, 553; knowledge of party sought to be estopped, McLearn v. Hill, 276 Mass. 519, 177 N.E. 617, 619,
77 A.L.R. 1039; misleading of person claiming estoppel,
Dodd v. Rotterman, 161 N.E. 756, 761, 330 Ill. 362; State v.
Abernathy, 159 Tenn. 175, 17 S.W.2d 17, 19; prejudice to
party claiming estoppel, Combs v. Salyer, 165 S.W.2d 40,
43, 291 Ky. 592; Burlington Sa y . tank of Burlington, Vt.,
v. Rockwell, C.C.A.Idaho, 31 F.2d 27, 29; reliance upon
conduct of one sought to be estopped, Wiedersum v. Atlantic Cement Products, 25 N.Y.S.2d 496, 501, 261 App.Div.
305; State v. Smith, 135 Neb. 423, 281 N.W. 851, 856; representation or concealment of material facts, City Dairy Co.
v. Uservo, Inc., 101 Ind.App. 375, 199 N.E. 457.
CONDUCT MONEY. In English practice. Money paid to a witness who has been subpoenaed on
a trial, sufficient to defray the reasonable expenses
of going to, staying at, and returning from the
place of trial. Lush, Pr. 460; Archb. New Pr. 639.
CONDUCT! ACTIO. In the civil law. An action
which the hirer (conductor) of a thing might have
against the letter, (locator.) Inst. 3, 25, pr. 2.
CONDUCTIO. In the civil law. A hiring. Used
generally in connection with the term locatio, a
letting. Locatio et conductio, (sometimes united
as a compound word, "locatio-conductio,") a letting and hiring. Inst. 3, 25; Bract. fol. 62, c. 28;
Story, Bailm. §§ 8, 368.
CONDUCTOR. In the civil law. A hirer.
CONDUCTOR OPERARUM. In the civil law. A
person who engages to perform a piece of work
for another, at a stated price.
CONDUCTUS. A thing hired.
CONE. In geology. Area built up by a stream,
near the mouth of a canyon of boulders, small
stones, gravel, sand and other detritus. Haack v.
San Fernando Mission Land Co., 177 Cal. 140, 169
P. 1021, 1022.
CONE AND KEY. In old English law. A woman
at fourteen or fifteen years of age may take
charge of her house and receive cone and key;
that is, keep the accounts and keys. Cowell.
Said by Lord Coke to be cover and keye, meaning
that at that age a woman knew what in her house
should be kept under lock and key. 2 Inst. 203.
CONFARREATIO. In Roman law. A sacrificial
rite resorted to by marrying persons of high patrician or priestly degree, for the purpose of clothing the husband with the manus over his wife;
the civil modes of effecting the same thing
being coemptio, (formal,) and usus mulieris, (informal.) Brown.
CONFECTIO. The making and completion of a
written instrument. 5 Coke, 1.
CONFEDERACY,
Criminal Law
The association or banding together of two or
more persons for the purpose of committing an
act or furthering an enterprise which is forbidden
by law, or which, though lawful in itself, becomes
unlawful when made the object of the confederacy.
State v. Crowley, 41 Wis. 284, 22 Am.Rep. 719;
Watson v. Navigation Co., 52 How.Prac. (N.Y.)
353. Conspiracy is a more technical term for this
offense. The act of two or more who combine together to do any damage or injury to another, or
to do any unlawful act. Jacob. State v. Crowley, 41 Wis. 284, 22 Am.Rep. 719.
Equity Pleading
An improper combination alleged to have been
entered into between the defendants to a bill in
equity.
International Law
A league or agreement between two or more independent states whereby they unite for their mutual welfare and the furtherance of their common
aims. The term may apply to a union so formed
for a temporary or limited purpose, as in the case
of an offensive and defensive alliance; but it is
more commonly used to denote that species of political connection between two or more independent
states by which a central government is created,
invested with certain powers of sovereignty,
( mostly external,) and acting upon the several
component states as its units, which, however,
retain their sovereign powers for domestic purposes and some others. See Federal Government.
CONFEDERATION. A league or compact for
mutual support, particularly of princes, nations,
or states. Such was the colonial government during the Revolution.
CONFERENCE. A meeting of several persons for
deliberation, for the interchange of opinion, or
for the removal of differences or disputes. Thus,
a meeting between a counsel and solicitor to advise on the cause of their client.
In the practice of legislative bodies, when the
two houses cannot agree upon a pending measure,
each appoints a committee of "conference," and
the committees meet and consult together for the
purpose of removing differences, harmonizing conflicting views, and arranging a compromise which
will be accepted by both houses.
French Law
A concordance or identity between two laws
or two systems of laws.
International Law
A personal meeting between the diplomatic
agents of two or more powers, for the purpose
of making statements and explanations that will
obviate the delay and difficulty attending the more
formal conduct of negotiations.
CONFESS. To admit as true; to assent to; to
concede. Guydon v. Taylor, 115 Ind.App. 685, 60
N.E.2d 750, 751. To admit the truth of a charge
or accusation. Usually spoken of charges of tortious or criminal conduct.
CONFESSING ERROR. A plea to an assignment
of error, admitting the same.
CONFESSIO. Lat. A confession. Confessio
judicio, a confession made in or before a court.
368
CONFIDENCE
CONFESSIO FACTA IN JUDICIO OMNI PROBATIONE MAJOR EST. A confession made in
court is of greater effect than any proof. Jenk.
Cent. 102.
CONFESSION. In criminal law. A voluntary
statement made by a person charged with the
commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges
himself to be guilty of the offense charged, and
discloses the circumstances of the act or the share
and participation which he had in it. Spicer v.
Com., 21 Ky.L.Rep. 528, 51 S.W. 802. State v. Gibson, 69 N.D. 70, 284 N.W. 209, 214, 215, 219; Sango
v. State, 52 Okl.Cr. 359, 5 P.2d 400, 401; Edwards
v. State, Okl.Cr.App., 288 P. 359, 361. Also the
act of a prisoner, when arraigned for a crime or
misdemeanor, in acknowledging and avowing that
he is guilty of the offense charged.
"Confession" comprises whole criminal charge; whereas, "admission" relates only to particular fact or circumstance covered thereby. State v. Davis, 212 Iowa 131, 235
N.W. 759, 761.
Classification
Confessions are divided into judicial and extrajudicial. The former are such as are made
before a magistrate or court in the due course of
legal proceedings; they include confessions made
in preliminary examinations before magistrates.
Mularkey v. State, 199 Wis. 269, 225 N.W. 933,
934. The latter are such as are made by a party
elsewhere than in court or before a magistrate,
1 Greenl. Ev. § 216, State v. Corey, 182 Minn. 48,
233 N.W. 590, 591; Foster v. State, 79 Okl.Cr. 183,
152 P.2d 929, 932; Louette v. State, 152 Fla. 495,
12 So.2d 168, 172; whether to an official or nonofficial person, Prather v. State, 76 Okl.Cr. 385, 137
P.2d 249, 252. One made by the party out of court,
or to any person, official or otherwise, when made
not in the course of a judicial examination or investigation. State v. Stevenson, 98 Or. 285, 193 P.
1030, 1032.
An implied confession is where the defendant,
in a case not capital, does not plead guilty but
indirectly admits his guilt by placing himself at
the mercy of the court and asking for a light sentence. 2 Hawk. P. C. p. 469; State v. Conway,
20 R.I. 270, 38 A. 656. An indirect confession is
one inferred from the conduct of the defendant.
An involuntary confession is one induced by hope,
promise, fear, violence, torture, or threat. Lyons
v. State, 77 Okl.Cr. 197, 138 P.2d 142, 148; Lyons
v. State, 140 P.2d 248. People v. Tielke, 259 Ill.
8$, 102 N.E. 229, 231. A naked confession is an
admission of the guilt of the party, but which is
not supported by any evidence of the commission
of the crime. A relative confession, in the older
criminal law of England, "is where the accused
confesseth and appealeth others thereof, to become an approver," (2 Hale, P. C. c. 29,) or in
other words to "turn king's evidence." This is
now obsolete, but something like it is practiced
in modern law, where one of the persons accused
or supposed to be involved in a crime is put on
the witness stand under an implied promise of
pardon. State v. Willis, 71 Conn. 293, 41 A. 820.
A simple confession is merely a plea of guilty.
Black's Law Dictionary Revised 4th Ed.-24
State v. Willis, 71 Conn. 293, 41 A. 820. A voluntary confession is one made spontaneously by a
person accused of crime, free from the influence
of any extraneous disturbing cause, and in particular, not influenced, or extorted by violence,
threats, or promises. State v. Clifford, 86 Iowa,
550, 53 N.W. 299, 41 Am.St.Rep. 518.
No confession induced by official threat of prosecution is
voluntary. Cannan v. U. S., C.C.A.Tex., 19 F.2d 823, 824;
State v. Dolan, 86 N.J.L. 192, 90 A. 1034, 1035.
It need not be spontaneous nor proceed wholly at maker's
suggestion, but may be set in motion by external causes,
so long as such influences are not what the law deems
improper. People v. Vinci, 295 111. 419, 129 N.E. 193, 195.
For extrajudicial confession, see, also, the title
Extrajudicial.
CONFESSION AND AVOIDANCE. A plea in confession and avoidance is one which avows and
confesses the truth of the averments of fact in the
declaration, either expressly or by implication, but
then proceeds to allege new matter which tends
to deprive the facts admitted of their ordinary
legal effect, or to obviate, neutralize, or avoid
them. Bavarian Brewing Co. v. Retkowski, 113 A.
903, 907, 1 W.W.Flarr. (Del.) 225; Brown v. Jones,
137 Or. 520, 3 P.2d 768, 769.
CONFESSION OF DEFENSE. In English practice. Where defendant alleges a ground of defense arising since the commencement of the action, the plaintiff may deliver confession of such
defense and sign judgment for his costs up to the
time of such pleading, unless it be otherwise ordered. Jud. Act 1875, Ord. XX, r. 3.
CONFESSION OF JUDGMENT. See Judgment.
CONFESSO, BILL TAKEN PRO. In equity practice. An order which the court of chancery makes
when the defendant does not file an answer, that
the plaintiff may take such a decree as the case
made by his bill warrants.
CONFESSOR. An ecclesiastic who receives auricular confessions of sins from persons under his
spiritual charge, and pronounces absolution upon
them. The secrets of the confessional are not
privileged communications at common law, but
this has been changed by statute in some states.
See 1 Greenl. Ev. §§ 247, 248.
CONFESSORIA ACTIO. Lat. In the civil law.
An action for enforcing a servitude. Mackeld.
Rom. Law, § 324.
CONFESSUS IN JUDICIO PRO JUDICATO
HABETUR, ET QUODAMMODO SUA SENTENTIA
11 Coke, 30. A person confessing his guilt when arraigned is deemed to have
been found guilty, and is, as it were, condemned
by his own sentence.
CONFIDE. A synonym of the word "trust," and
means to put into one's trust or keeping. Burch
v. McMillin, Tex., 15 S.W.2d 86, 90.
CONFIDENCE. Trust; reliance; ground of trust.
In the construction of wills, this word is considered peculiarly appropriate to create a trust.
369
CONFIDENCE
"It is as applicable to the subject of a trust, as
nearly a synonym, as the English language is capable of. Trust is a confidence which one man
reposes in another, and confidence is a trust."
Appeal of Coates, 2 Pa. 133.
CONFIDENCE GAME. Obtaining of money or
property by means of some trick, device, or swindling operation in which advantage is taken of the
confidence which the victim reposes in the swindler. People v. Mutchler, 309 Ill. 207, 140 N.E. 820,
822, 35 A.L.R. 339; Roll v. People, 243 P. 641, 643,
78 Colo. 589; People v. Epstein, 338 Ill. 631, 170
N.E. 678, 679. For distinction between false pretenses and confidence game, see False Pretenses.
One obtaining property by unlawful means, other than
by fraudulently obtaining and then abusing victim's confidence, is not guilty of obtaining property by means of
"confidence game." Bomareto v. People, 111 Colo. 99, 137
P.2d 402, 404.
CONFIDENTIAL. Intrusted with the confidence
of another or with his secret affairs or purposes;
intended to be held in confidence or kept secret.
CONFIDENTIAL COMMUNICATIONS. See Communication.
CONFIDENTIAL CREDITOR. This term has
been applied to the creditors of a failing debtor
who furnished him with the means of obtaining
credit to which he was not entitled, involving in
loss the unsuspecting and fair-dealing creditors.
Gay v. Strickland, 112 Ala. 567, 20 So. 921.
CONFIDENTIAL RELATION. A fiduciary relation. These phrases are used as convertible terms.
It is a peculiar relation which exists between
client and attorney, principal and agent, principal
and surety, landlord and tenant, parent and child,
guardian and ward, ancestor and heir, husband
and wife, trustee and cestui que trust, executors or
administrators and creditors, legatees, or distributees, appointer and appointee under powers, and
partners and part owners. In these and like cases,
the law, in order to prevent undue advantage
from the unlimited confidence or sense of duty
which the relation naturally creates, requires the
utmost degree of good faith in all transactions
between the parties. Shell Petroleum Corporation
v. Pratt, D.C.Kan., 22 F.Supp. 304, 305, 306. It is
not confined to any specific association of parties.
It appears when the circumstances make it certain that the parties do not deal on equal
terms, but on the one side there is an overmastering influence, or, on the other, weakness,
dependence, or trust, justifiably reposed. The
mere existence of kinship does not, of itself, give
rise to such relation. In re Null's Estate, 302
Pa. 64, 153 A. 137. It covers every form of relation between parties wherein confidence is reposed
by one in another, and former relies and acts upon
representations of the other and is guilty of no
derelictions on his own part. Peckham v. Johnson, Tex.Civ.App., 98 S.W.2d 408, 416.
The term "confidential relations," within the exception
to the rule that misrepresentations of law will not work
an estoppel, is not confined to the strict fiduciary relationship existing between those having definite, well-recognized
legal relations of trust and confidence, but extends to every
possible case in which a fiduciary relation exists as a fact,
though it may be a moral, social, domestic, or merely personal relation, and need not be a legal one. Robbins v.
Law, 48 Cal.App. 555, 192 P. 118, 120; Hitchcock v. Tackett, 208 Ky. 803, 272 S.W. 52, 54.
CONFINEMENT. Confinement may be by either
a moral or a physical restraint, by threats of violence with a present force, or by physical restraint of the person. Ex parte Snodgrass, 43 Tex.
Cr.R. 359, 65 S.W. 1061.
Restraint by sickness in childbirth; lying-in for
delivery of child, or possibly because of advanced
pregnancy. Rose v. Commonwealth Beneficial
Ass'n, 86 A. 673, 674, 4 Boyce (Del.) 144.
Solitary Confinement
See Solitary Confinement.
CONFIRM. To complete or establish that which
was imperfect or uncertain; to ratify what has
been done without authority or insufficiently.
Railway Co. v. Ransom, 15 Tex.Civ.App. 689, 41
S.W. 826. Vermont Shade Roller Co. v. Burlington Traction Co., 102 Vt. 489, 150 A. 138, 142. To
make firm or certain; to give new assurance of
truth or certainty; to put past doubt. State ex
rel. Sherrill v. Milam, 113 Fla. 491, 153 So. 100.
CONFIRMARE EST ID FIRMUM FACERE
QUOD PRIUS INFIRMUM FUIT. Co. Litt. 295.
To confirm is to make firm that which was before infirm.
CONFIRMARE NEMO POTEST PRIUS QUAM
JUS EI ACCIDERIT. No one can confirm before
the right accrues to him. 10 Coke, 48.
CONFIRMAT USUM QUI TOLLIT ABUSUM. He
confirms the use [of a thing] who removes the
abuse [of it]. Moore, 764.
CONFIRMATIO. The conveyance of an estate,
or the communication of a right that one hath in
or unto lands or tenements, to another that hath
the possession thereof, or somo other estate therein, whereby a voidable estate is made sure and
unavoidable, or whereby a particular estate is
increased or enlarged. Shep. Touch. 311; 2 Bl.
Comm. 325.
CONFIRMATIO CHARTARUM. Lat. Confirmation of the charters. A statute passed in the 25
Edw. I., whereby the Great Charter is declared
to be allowed as the common law; all judgments
contrary to it are declared void; copies of it are
ordered to be sent to all cathedral churches and
read twice a year to the people; and sentence of
excommunication is directed to be as constantly
denounced against all those that, by word or deed
or counsel, act contrary thereto or in any degree
infringe it. 1 Bl.Comm. 128.
CONFIRMATIO CRESCENS. An enlarging confirmation; one which enlarges a rightful estate.
Shep. Touch. 311.
CONFIRMATIO DIMINUENS. A diminishing
confirmation. A confirmation which tends and
serves to diminish and abridge the services where-
370
CONFLICT
by a tenant doth hold, operating as a release of
part of the services. Shep. Touch. 311.
CONFIRMATIO PERFICIENS. A confirmation
which makes valid a wrongful and defeasible title,
or makes a conditional estate absolute. Shep.
Touch. 311.
CONFIRMATIO EST NULLA UBI DONUM PRIECEDENS EST INVALIDUM. Moore, 764; Co.
Litt. 295. Confirmation is void where the preceding gift is invalid.
CONFIRMATIO OMNES SUPPLET DEFECTUS,
LICET ID QUOD ACTUM EST AB INITIO NON
VALUIT. Co. Litt. 295b. Confirmation supplies
all defects, though that which had been done was
not valid at the beginning.
CONFIRMATION. A contract or written memorandum thereof, by which that which was infirm,
difficult of proof, void, imperfect, or subject to be
avoided is ratified, rendered valid and binding,
made firm and unavoidable. Schifferdecker v.
Busch, 225 N.Y.S. 106, 111, 130 Misc, 625.
It implies a deliberate act, intended to renew and ratify
a transaction known to be voidable. Bauer v. Dotterer, 202
Ark. 1055, 155 S.W.2d 54, 57.
A conveyance of an estate or right in esse,
whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased. Co. Litt. 295b. Beetem v. Garrison, 129
Md. 664, 99 A. 897, 900.
English Ecclesiastical Law
The ratification by the archbishop of the election of a bishop by dean and chapter under the
king's letter missive prior to the investment and
consecration of the bishop by the archbishop. 25
Hen. VIII. c. 20.
CONFIRMATION OF SALE. The confirmation of
a judicial sale by the court which ordered it is a
signification in some way (usually by the entry
of an order) of the court's approval of the terms,
price, and conditions of the sale. Johnson v.
Cooper, 56 Miss. 618; Hyman v. Smith, 13 W.Va.
765.
CONFIRMAVI. Lat. I have confirmed. The emphatic word in the ancient deeds of confirmation.
Fleta, lib. 3, c. 14, § 5.
CONFIRMEE. The grantee in a deed of confirmation.
CONFIRMOR. The grantor in a deed of confirmation.
CONFISCABLE. Capable of being confiscated or
suitable for confiscation; liable to forfeiture.
Camp v. Lockwood, 1 Dall. (Pa.) 393, 1 L.Ed. 194.
demn private forfeited property to public use.
City of Portsmouth v. Public Utilities Commission,
108 Ohio St. 272, 140 N.E. 604, 606; Moscow Fire
Ins. Co. of Moscow, Russia, v. Bank of New York
& Trust Co., 294 N.Y.S. 648, 663, 161 Misc. 903.
Formerly, it appears, this term was used as synonymous
with "forfeit," but at present the distinction between the
two terms is well marked. Confiscation supervenes upon
forfeiture. The person, by his act, forfeits his property;
the state thereupon appropriates it, that is, confiscates it.
Hence, to confiscate property implies that it has first been
forfeited; but to forfeit property does not necessarily imply that it will be confiscated.
CONFISCATEE. One whose property has been
seized and sold under a confiscation act, e. g., for
unpaid taxes. See Brent v. New Orleans, 41. La.
Ann. 1098, 6 So. 793.
CONFISCATION, The act of confiscating; or of
condemning and adjudging to the public treasury.
"Confiscation" is to be distinguished from "condemnation" as prize. The former is the act of the sovereign
against a rebellious subject; the latter is the act of a belligerent against another belligerent. Confiscation may be
effected by such means, summary or arbitrary, as the sovereign, expressing its will through lawful channels, may
please to adopt. Condemnation as prize can only be made
in accordance with principles of law recognized in the common jurisprudence of the world. Both are proceedings in
rem, but confiscation recognizes the title of the original
owner to the property, while in prize the tenure of the
property is qualified, provisional, and destitute of absolute
ownership. Winchester v. U. S., 14 Ct.C1. 48.
CONFISCATORY RATES. For utility are rates
which do not afford net return sufficient to preserve utility's property and to attract capital necessary to enable utility to discharge its public
duties. Wichita Gas Co. v. Public Service Commission of Kansas, D.C.Kan., 2 F.Supp. 792, 799.
Rates which do not afford a reasonable return on
value of property at time it is used in public service. State v. Tri-State Telephone and Telegraph
Co., 204 Minn. 516, 284 N.W. 294, 305.
CONFISCATION ACTS. Certain acts of congress,
enacted during the progress of the civil war (1861
and 1862) in the exercise of the war powers of the
government and meant to strengthen its hands
and aid in suppressing the rebellion, which authorized the seizure, condemnation, and forfeiture of
"property used for insurrectionary purposes."
Semmes v. U. S., 91 U.S. 27, 23 L.Ed. 193.
CONFISCATION CASES. The name given to a
group of fifteen cases decided by the United States
supreme court in 1868, on the validity and construction of the confiscation acts of congress. Reported in 7 Wall. 454, 19 L.Ed. 196.
CONFISK. An old form of confiscate.
CONFITENS REUS. An accused person who admits his guilt.
CONFISCARE. In civil and old English law. To
confiscate; to claim for or bring into the fist, or
treasury. Bract. fol. 150.
CONFISCATE. To appropriate property to the
use of the state. To adjudge property to be forfeited to the public treasury; to seize and con-
CONFLICT OF LAWS. Inconsistency or difference between the municipal laws of different
states or countries, arising in the case of persons
who have acquired rights or a status, or made
contracts, or incurred obligations, within the territory of two or more jurisdictions. Hence, that
branch of jurisprudence, arising from the diver-
371
CONFLICT
sity of the laws of different nations, states or
jurisdictions, in their application to rights and
remedies, which reconciles the inconsistency, or
decides which law or system is to govern in the
particular case, or settles the degree of force to
be accorded to the law of another jurisdiction,
(the acts or rights in question having arisen under it,) either where it varies from the domestic
law, or where the domestic law is silent or not
exclusively applicable to the case in point. In
this sense it is often called "private international
law," a term adopted by Westlake, by Woolsey,
Internatl. Law (5th Ed.) § 73, and others, and
characterized as "handy and manageable," but at
bottom inaccurate, by Dicey, Conflict of Laws,
Moore's Ed. 12, who points out that the defect of
the name "Conflict of Laws" is that the supposed
conflict is fictitious and never really takes place,
and that the expression has the further radical
defect of concealing from view the circumstance
that the question by the law of what country a
given transaction shall be governed is often too
plain to admit of doubt. If, he says, the term
applies to the conflict in the mind of a judge as
to which of two systems of law should govern a
given case, this amounts simply to saying that
the term "conflict of laws" may be used as an inaccurate equivalent for the less objectionable
phrase "choice of laws." Taylor, Jurisprudence,
611, after considering the opinion of many writers,
concludes that the term "private international
law" is subject to many objections. Holland, Jurisprudence, 410, considers it "wholly indefensible,"
as does Gray, Nature, etc., of the Law, 124. Pollock, First Book of Jurispr. 99, prefers the German term—Internationales Privatrecht.
CONFLICT OF PRESUMPTIONS. In this conflict certain rules are applicable, viz.: (1) Special
take precedence of general presumptions; (2)
constant of casual ones; (3) presume in favor of
innocence; (4) of legality; (5) of validity; and,
when these rules fail, the matter is said to be at
large. Brown.
CONFLICTING EVIDENCE. It has been said
that there is not, in a legal sense, a conflict of
evidence unless there is a possibility that men of
ordinary reason and fairness would feel justified
in drawing different conclusions from the evidence before them. Seeley v. Osborne, 220 N.Y.
416, 116 N.E. 97.
CONFORMITY. Correspondence in form, manner, or use; agreement; harmony; congruity.
Reasonover v. Reasonover, 122 Tex. 512, 58 S.W.
2d 817, 819.
English Ecclesiastical Law
Adherence to the doctrines and usages of the
Church of England.
CONFORMITY ACT, or STATUTE. A term used
to designate Act June 1, 1872, c. 255, § 5, 17 Stat.
197, whence was derived Rev. St. U. S. § 914 providing that the practice, pleadings, and forms and
modes of proceeding in civil causes, other than
equity and admiralty causes, in the federal dis-
trict courts shall conform, as near as may be, to
those existing in like causes in the courts of the
state within which such district courts are held.
Since the adoption of the Federal Rules of Civil
Procedure, 28 U.S.C.A., the Conformity Act is no
longer effective. De Rosmo v. Feeny, 1941, 38 F.
Supp. 834; Hydraulic Press Mfg. Co. v. Williams,
White & Co., C.C.A.I11.1947, 165 F.2d 489.
CONFORMITY, BILL OF. See Bill of Conformity.
CONFRAIRIE. Fr. In old English law. A fraternity, brotherhood, or society. Cowell.
CONFRERES. Brethren in a religious house;
fellows of one and the same society. Cowell.
CONFRONTATION. In criminal law, the act of
setting a witness face to face with the prisoner,
in order that the latter may make any objection
he has to the witness, or that the witness may
identify the accused. State v. Behrman, 114 N.C.
797, 19 S.E. 220, 25 L.R.A. 449.
The constitutional right of confrontation does not mean
merely that witnesses are to be made visible to the accused, but imports the constitutional privilege to croois-examine them. State v. Crooker, 123 Me. 310, 122 A. 865, 866,
33 A.L.R. 821.
CONFUSIO. In the civil law. The inseparable
intermixture of property belonging to different
owners; it is properly confined to the pouring
together of fluids, but is sometimes also used of a
melting together of metals or any compound
formed by the irrecoverable commixture of different substances.
It is distinguished from commixtion by the fact that in
the latter case a separation may be made, while in a case
of confusio there cannot be. 2 Bl.Comm. 405.
CONFUSION. This term, as used in the civil law
and in compound terms derived from that source,
means a blending or intermingling, and is equivalent to the term "merger" as used at common law.
Palmer v. Burnside, 1 Woods, 182 Fed. Cas. No.
10,685.
CONFUSION OF BOUNDARIES. The title of
that branch of equity jurisdiction which relates
to the discovery and settlement of conflicting, disputed, or uncertain boundaries.
CONFUSION OF DEBTS. A mode of extinguishing a debt, by the concurrence in the same person
of two qualities or adverse rights to the same
thing which mutually destroy each other. This
may occur in several ways, as where the creditor
becomes the heir of the debtor, or the debtor the
heir of the creditor, or either accedes to the title
of the other by any other mode of transfer.
Woods v. Ridley, 11 Humph. (Tenn.) 198.
CONFUSION OF GOODS. The inseparable intermixture of property belonging to different owners; properly confined to the pouring together of
fluids, but used in a wider sense to designate any
indistinguishable compound of elements belonging
to different owners. The term "confusion" is applicable to a mixing of chattels of one and the
same general description, differing thus from "accession," which takes place where various ma-
372
CONJECTURE
terials are united in one product. Confusion of
goods arises wherever the goods of two or more
persons are so blended as to have become undistinguishable. 1 Schouler, Pers. Prop. 41. Barker
v. Stearns Coal & Lumber Co., 291 Ky. 184, 163
S.W.2d 466, 471.
CONFUSION OF RIGHTS. A union of the qualities of debtor and creditor in the same person.
The effect of such a union is, generally, to extinguish the debt. 1 Salk. 306; Cro. Car. 551; 1 Ld.
Raym. 515. 5 Term 381; Comyns, Dig. Baron et
Feme ( D) ; Baylor University v. Bradshaw, Tex.
Civ.App., 52 S.W.2d 1094, 1101.
CONFUSION OF TITLES. A civil-law expression,
synonymous with "merger," as used in the common law, applying where two titles to the same
property unite in the same person. Palmer v.
Burnside, 1 Woods, 179, Fed. Cas, No. 10,685.
CONFUTE. To prove to be false, defective, or
invalid. Wiley v. Baker, 219 Mich. 629, 190 N.W.
273, 278.
CONGA. Fr. In French law. Permission, leave,
license; a passport or clearance to a vessel; a
permission to arm, equip, or navigate a vessel.
CONGA D'ACCORDER. Leave to accord. A permission granted by the court, in the old process of
levying a fine, to the defendant to agree with the
plaintiff. Termes de la Ley; Cowell. See Licentia Concordandi; 2 Bla.Comm. 350.
CONGA D'EMPARLER. Leave to imparl. The
privilege of an imparlance, (licentia loquendi.) 3
Bl.Comm. 299.
CONGA D'ESLIRE. Also spelled conge d'elire,
conge dèlire. Cowell; Termes de la Ley; 1 Bla.
Comm. 379, 382. A permission or license from the
British sovereign to a dean and chapter to elect a
bishop, in time of vacation; or to an abbey or
priory which is of royal foundation, to elect an
abbot or prior.
CONGEABLE. L. Fr. Lawful; permissible; allowable. "Disseisin is properly where a man entereth into any lands or tenements where his entry is not congeable, and putteth out him that
hath the freehold." Litt. § 279. See Ricard v.
Williams, 7 Wheat. 107, 5 L.Ed. 398.
CONGILDONES. In Saxon law. Fellow-members
of a guild.
CONGIUS. An ancient measure containing about
a gallon and a pint. Cowell.
CONGREGATE. To come together; to assemble;
to meet. Board of Health of City of Paterson v.
Clayton, 93 N.J.L. 64, 106 A. 813, 814.
CONGREGATION. An assembly or gathering;
specifically, an assembly or society of persons
who together constitute the principal supporters
of a particular parish, or habitually meet at the
same church for religious exercises. Laird v.
State, 69 Tex.Cr.R. 553, 155 S.W. 260, 262.
Ecclesiastical Law
Certain bureaus at Rome, where ecclesiastical
matters are attended to.
CONGREGATIONAL SYSTEM OF CHURCH ORGANIZATION. Where the local organization is
the governing body and is sufficient unto itself.
Doughty v. Herr, 97 Ind.App. 427, 185 N.E. 657,
658.
CONGRESS. In International Law. An assembly
of envoys, commissioners, deputies, etc., from different sovereignties who meet to concert measures
for their common good, or to adjust their mutual
concerns.
In American Law. The legislative assembly of
the United States, composed of the senate and
house of representatives (q. v.). U. S. Const. art.
1, § 1.
CONGRESSMAN. Strictly, a member of the Congress of the United States. But there is a strong
tendency in popular usage to apply this term only
to a member of the House of Representatives, as
distinguished from a senator. State v. Kopriva,
49 N.D. 1040, 194 N.W. 704, 705.
CONGRESSUS. The extreme practical test of the
truth of a charge of impotence brought against a
husband by a wife. It is now disused. Causes
Celêbres, 6, 183.
CONJECTIO. In the civil law of evidence. A
throwing together. Presumption; the putting of
things together, with the inference drawn therefrom.
CONJECTIO CAUSE. In the civil law. A statement of the case. A brief synopsis of the case
given by the advocate to the judge in opening the
trial. Calvin.
CONJECTURAL CHOICE, RULE OF. Where all
theories of causation rest only on conjecture, no
jury question is presented. Cummings v. Grand
Trunk Western R. Co., 127 N.W.2d 842, 844, 372
Mich. 695.
CONJECTURE. A slight degree of credence, arising from evidence too weak or too remote to cause
belief. Weed v. Scofield, 73 Conn. 670, 49 A. 22-,
1 Mascardus, De Prob. qust. 14, n. 14. Supposition or surmise. The idea of a fact, suggested by
another fact; as a possible cause, concomitant, or
result. Burrill, Circ. Ev. 27. An idea or notion
founded on a probability without any demonstration of its truth; an idea or surmise inducing a
slight degree of belief founded upon some possible,
or perhaps probable fact of which there is no positive evidence. Oklahoma City v. Wilcoxson, 173
Okl. 433, 48 P.2d 1039, 1043. An explanation consistent with but not deducible as a reasonable inference from known facts or conditions. Southern
Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665, 669.
In popular use, synonymous with "guess." Fedorawicz v. Citizens' Electric Illuminating Co., 246
Pa. 141, 92 A. 124, 125.
Also, the bringing together of the circumstances, as well as the result obtained. Reynolds v.
Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128,
1133.
373
CONJOINT
CONJOINT ROBBERY. Where the act is committed by two or more persons. Patterson V.
State, 78 Okl.Cr. 244, 147 P.2d 179, 184.
The offense of having conference or commerce
with evil spirits, in order to discover some secret,
or effect some purpose. Cowell.
CONJOINTS. Persons married to each other.
Story, Confl. Laws, § 71; Wolffius, Droit de la Nat.
§ 858.
Classed by Blackstone with witchcraft, enchantment, and
sorcery, but distinguished from each of these by other
writers. 4 BI.Comm. 60; Cowell. Cooper v. Livingston,
19 Fla. 693; Mozley & W. Law Diet.
CONJUDEX. In old English law. An associate
judge. Bract. 403.
CONJURATOR. In old English law. One who
swears or is sworn with others; one bound by
oath with others; a compurgator; a conspirator.
CONJUGAL. Of or belonging to marriage or the
married state; suitable or appropriate to the married state or to married persons; matrimonial;
connubial. Swanson v. Swanson, 20 A.2d 617, 618,
128 Conn. 128, 135 A.L.R. 849.
CONJUGAL RIGHTS. Matrimonial rights; the
right which husband and wife have to each other's
society, comfort, and affection.
CONJUGIUM. One of the names of marriage,
among the Romans. Tayl. Civil Law, 284.
CONJUNCT. In Scotch law. Joint.
CONJUNCTA. In the civil law. Things joined
together or united; as distinguished from disjuncta, things disjoined or separated. Dig. 50, 16,
53.
CONJUNCTIM. Lat. In old English law. Jointly. Inst. 2, 20, 8.
CONJUNCTIM ET DIVISIM. L. Lat. In old English law. Jointly and severally.
CONJUNCTIO. In the civil law. Conjunction;
connection of words in a sentence. See Dig. 50,
16, 29, 142.
CONJUNCTIO MARITI ET FEMIN1E EST DE
JURE NATURAE. The union of husband and wife
is of the law of nature.
CONJUNCTIVE. Connecting in a manner denoting union.
A grammatical term for particles which serve
for joining or connecting together. Thus, the
word "and" is called a "conjunctive," and "or" a
"disjunctive," conjunction.
CONJUNCTIVE DENIAL. Where several material facts are stated conjunctively in the complaint,
an answer which undertakes to deny their averments as a whole, conjunctively stated, is called a
"conjunctive denial." Doll v. Good, 38 Cal. 287.
CONJUNCTIVE OBLIGATION. See Obligation.
CONJURATIO. In Old English Law. A swearing
together; an oath administered to several together; a combination or confederacy under oath.
Cowell.
In Old European Law. A compact of the inhabitants of a commune, or municipality, confirmed by their oaths to each other and which
was the basis of the commune. Steph. Lect. 119.
CONJURATION. In old English law. A plot or
compact made by persons combining by oath to
do any public harm. Cowell.
CONNECT. To join or fasten together as by
something intervening; to associate as in occurrence or in idea; to combine; to unite or link
together, as in an electrical circuit; to establish
a bond or relation between; to meet or make connections for transference of passengers or change
of means of communication. City of Independence v. Board of Com'rs of Montgomery County,
140 Kan. 661, 38 P.2d 105.
CONNECTED. Joined; united by junction, by an
intervening substance or medium, by dependence
or relation, or by order in a series. State v. Patterson, 95 S.C. 463, 79 S.E. 309, 310.
With reference to buildings, the term does not generally
denote such a close union as is implied by the word "attached" or "annexed," but rather signifiez the connection
effected by a flume; Plattsburg Gas & Electric Co. v. Miller, 206 N.Y.S. 42, 45, 123 Misc. 651; or by piping or telephone connections; Williams Mfg. Co. v. Insurance Co. of
North America, 93 Vt. 161, 106 A. 657, 659.
A counterclaim, to be "connected" with the subject of
the action, must be directly connected, so that the parties
could be supposed to have foreseen and contemplated it in
their mutual acts. Haberle-Crystal Spring Brewing Co. v.
Handrahan, 165 N.Y.S. 251, 255, 100 Misc. 163; Placerville
Gold Mining Co. v. Beal, 168 Cal. 682, 144 P. 748, 749.
As used in the Act to Regulate Commerce (Act Feb. 4,
1887, c. 104, § 15, 24 Stat. 384), as amended by Act June
29, 1906, c. 3591, § 4, 34 Stat. 589 (49 USCA § 15), "connected with" transportation means "a part of" transportation.
New York Cent. & H. R. R. Co. v. General Electric Co., 146
N.Y.S. 322, 327, 83 Misc. 529.
CONNECTION. The state of being connected or
joined; union by junction, by an intervening substance or medium, by dependence or relation, or
by order in a series. State v. Patterson, 95 S.C.
463, 79 S.E. 309, 310. Annernen v. Penn, Cust. &
Pat.App., 69 F.2d 653, 654.
A contract for a connection between railroads means a
physical joining of the rails so as to permit trains to pass.
from one set of rails to the other. Philip A. Ryan Lumber
Co. v. Ball, Tex.Civ.App., 197 S.W. 1037, 1038. See, also,
State v. Babcock, 161 Minn. 80, 200 N.W. 843, 844; Raynor
v. New York & L. I. Traction Co., 149 N.Y.S. 151, 155, 86.
Misc. 201.
CONNECTIONS. Relations by blood or marriage,
but more commonly the relations of a person with
whom one is connected by' marriage. In this
sense, the relations of a wife are "connections"
of her husband. The term is vague and indefinite.
See Storer v. Wheatley, 1 Pa. 507.
CONNEXITE. In French law. This exists when
two actions are pending which, although not identical as in lis pendens, are so nearly similar in,
object that it is expedient to have them both adjudicated upon by the same judges. Arg. Fr.
Merc. Law, 553.
374
CONSANGUINITY
CONNIVANCE. The secret or indirect consent or
permission of one person to the commission of an
unlawful or criminal act by another. State v.
Gesell, 124 Mo. 531, 27 S.W. 1101. A winking at;
voluntary blindness; an intentional failure to discover or prevent the wrong; forbearance or passive consent. Pierce v. Crisp, 260 Ky. 519, 86 S.
W.2d 293, 296.
The corrupt consent of one party to the commission of the acts of the other constituting the
cause of divorce. Dennis v. Dennis, 36 A. 34, 68
Conn. 186, 34 L.R.A. 449, 57 Am.St.Rep. 95; Manville v. Manville, Mo.App., 81 S.W.2d 382, 388.
CONQUEST. In feudal law. Conquest; acquisition by purchase; any method of acquiring the
ownership of an estate other than by descent. Also an estate acquired otherwise than by inheritance.
A corrupt intent is essential. Ratcliff v. Ratcliff, 221 Mo.App. 944, 288 S.W. 794, 796. But see
Leavitt v. Leavitt, 229 Mass. 196, 118 N.E. 262, and
33 L.J.Mat.Cas. 161.
CONQUESTOR. Conqueror. The title given to
William of Normandy.
In international law. The acquisition of the
sovereignty of a country by force of arms, exercised by an independent power which reduces the
vanquished to the submission of its empire. Castillero v. U. S., 2 Black, 109, 17 L.Ed. 360; American Ins. Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242.
In Scotch law. Purchase. Bell.
Connivance differs from condonation, though the same
legal consequences may attend it. Connivance necessarily
involves criminality on the part of the individual who connives; condonation may take place without imputing the
slightest blame to the party who forgives the injury. Connivance must be the act of the mind before the offense has
been committed; condonation is the result of a determination to forgive an injury which was not known until
after it was inflicted. Turton v. Turton, 3 Hagg.Eccl. 350.
Connivance differs, also, from collusion ; the former is
generally collusion for a particular purpose, while the latter may exist without connivance. 3 Hagg.Eccl. 130.
CONNIVE. To co-operate secretly with, or to
have a secret or clandestine understanding with.
People v. Munday, 293 Ill. 191, 127 N.E. 364, 368.
To take part or co-operate privily with another,
to aid or abet. People v. Munday, 215 Ill.App.
356, 377. To look upon with secret favor; it implies both knowledge and assent, either active or
passive. State v. Furth, 82 Wash. 665, 144 P. 907,
910.
CONNOISSEMENT. In French law. An instrument, signed by the master of a ship or his agent,
containing a description of the goods loaded on
a ship, the persons who have sent them, the persons to whom they were sent, and the undertaking to transport them;—similar to the English
and American bill of lading. Guyot, Repert.
Univ.; Ord. de la Marine,l. 3, t. 3, art. 1.
CONNUBIUM. In the civil law. Marriage.
Among the Romans, a lawful marriage as distinguished from "concubinage" (q. v.), an inferior
marriage.
CONOCIAMENTO. In Spanish law. A recognizance. White, New Recop. b. 3, tit. 7, c. 5, § 3.
CONOCIMIENTO. In Spanish law. A bill of
lading. In the Mediterranean ports it is called
"poliza de cargamiento."
CONPOSSESSIO. In modern civil law. A joint
possession. Mackeld. • Rom. Law, § 245.
CONQUEREUR. In Norman and old English law.
The same as "conqueror" (q. v.) .
CONQUEROR. In old English and Scotch law.
The first purchaser of an estate; he who first
brought an estate into his family, or into the
family owning it. 2 Bl.Comm. 242, 243.
CONQUETS. In French law. The name given to
every acquisition which the husband and wife,
jointly or severally, make during the conjugal
community. Thus, whatever is acquired by the
husband and wife, either by his or her industry
or good fortune, inures to the extent of one-half
for the benefit of the other. Merl. Repert. "Conque't" ; Merl. Quest., "Conquet." Picotte v. Cooley,
10 Mo. 312. In Louisiana, these gains are called
acqudts.
CONQUISITIO. In feudal and old English law.
Acquisition. 2 Bl.Comm. 242.
CONQUISITOR. In feudal law. A purchaser,
acquirer, or conqueror. 2 Bl.Comm. 242, 243.
CONSANGUINEUS. Lat. A person related by
blood; a person descended from the same common stock.
CONSANGUINEUS EST QUASI EODEM SANGUINE NATUS. Co. Litt. 157. A person related
by consanguinity is, as it were, sprung from the
same blood.
CONSANGUINEUS FRATER. In civil and.feudal
law. A half-brother by the father's side, as distinguished from frater uterinus, a brother by the
mother's side. 2 Bla.Comm. 231.
CONSANGUINITY. Kinship; blood relationship;
the connection or relation of persons descended
from the same stock or common ancestor. 2 Bl.
Comm. 202; Rector v. Drury, 3 Pin. (Wis.) 298;
Sweezey v. Willis, 1 Brad.Surr.R. (N.Y.) 495.
Consanguinity is distinguished from "affinity," which is
the connection existing in consequence of a marriage, between each of the married persons and the kindred of the
other. Sizemore v. Commonwealth, 210 Ky. 637, 276 S.W.
524, 525.
Lineal and Collateral Consanguinity
Lineal consanguinity is that which subsists between persons of whom one is descended in a
direct line from the other, as between son, father,
grandfather, great-grandfather, and so upwards
in the direct ascending line; or between son,
grandson, great-grandson, and so downwards in
the direct descending line. Collateral consanguinity is that which subsists between persons who
have the same ancestors, but who do not descend
(or ascend) one from the other. Thus, father and
375
CONSCIENCE'
son are related by lineal consanguinity, uncle and
nephew by collateral consanguinity. 2 Bl.Comm,
203; Capps v. State, 87 Fla. 388, 100 So. 172, 173.
CONSCIENCE. The moral sense; the faculty of
judging the moral qualities of actions, or of discriminating between right and wrong; particular.
ly applied to one's perception and judgment of
the moral qualities of his own conduct, but in a
wider sense, denoting a similar application of the
standards of morality to the acts of others. The
sense of right and wrong inherent in every person
by virtue of his existence as a social entity; good
conscience being a synonym of equity. Van Graafieland v. Wright, 286 Mo. 414, 228 S.W. 465, 469.
In law, especially the moral rule which requires
probity, justice, and honest dealing between man
and man, as when we say that a bargain is
"against conscience" or "unconscionable," or that
the price paid for property at a forced sale was
so inadequate as to "shock the conscience." This
is also the meaning of the term as applied to the
jurisdiction and principles of decision of courts
of chancery, as in saying that such a court is a
"court of conscience," that it proceeds "according
to conscience," or that it has cognizance of "matters of conscience." See 3 Bl.Comm. 47-56;
People v. Stewart, 7 Cal. 143; Miller v. Miller,
187 Pa. 572, 41 A. 277.
As an element of equitable jurisdiction it is not the private opinion of an individual court, but is rather to be regarded as a metaphorical term, designating the common
standard of civil right and expediency combined, based upon general principles and limited by established doctrines,
to which the court appeals and by which it tests the conduct and rights of suitors. National City Bank of New
York v. Gelfert, 284 N.Y. 13, 29 N.E.2d 449, 452.
CONSCIENCE OF THE COURT. When an issue
is sent (Alt of chancery to be tried at law, to "inform the conscience of the court," the meaning
is that the court is to be supplied with exact and
dependable information as to the unsettled or
disputed questions of fact in the case, in order
that it may proceed to decide it in accordance
with the principles of equity and good conscience
in the light of the facts thus determined. Watt
v. Starke, 101 U.S. 252, 25 L.Ed. 826.
CONSCIENCE, COURTS OF. Courts, not of record, constituted by act of parliament in the city of
London, and other towns, for the recovery of
small debts; otherwise and more commonly called "Courts of Requests." 3 Steph.Comm. 451.
CONSCIENCE, RIGHT OF. As used in some constitutional provisions, this phrase is equivalent to
religious liberty or freedom of conscience. Com.
v. Lesher, 17 Serg. & R. (Pa.) 155; State v. Cummings, 36 Mo. 263.
CONSCIENTIA DICITUR A CON ET SCIO,
QUASI SCIRE CUM DEO. 1 Coke, 100. Conscience is called from con and scio, to know, as it
were, with God.
CONSCIENTIA REI ALIENI. In Scotch law.
Knowledge of another's property; knowledge that
a thing is not one's own, but belongs to another.
He who has this knowledge, and retains possession, is chargeable with "violent profits."
CONSCIENTIOUS OBJECTOR. One who, by reason of religious training and belief, is conscientiously opposed to participation in war. Selective Training & Service Act of 1940, § 5(g), 50
U.S.C.A. App., § 305(g). U. S. v. Kauten, C.C.A.
N.Y., 133 F.2d 703.
One conscientiously opposed on religious grounds to participation in war need not be a member of a religious sect
whose creed forbids participation in war to be entitled to
classification as a conscientious objector. U. S. v. Bowles,
C.C.A.N.J., 131 F.2d 818. It is sufficient if he has a conscientious scruple against war in any form. U. S. ex rel.
Phillips v. Downer, C.C.A.N.Y., 135 F.2d 521, 524, 525.
CONSCIENTIOUS SCRUPLE. A conscientious
scruple against taking an oath, serving as a juror
in a capital case, doing military duty, or the like,
is an objection or repugnance growing out of the
fact that the person believes the thing demanded
of him to be morally wrong, his conscience being
the sole guide to his decision; it is thus distinguished from an "objection on principle," which is
dictated by the reason and judgment, rather than
the moral sense, and may relate only to the propriety or expediency of the thing in question.
People v. Stewart, 7 Cal. 143.
CONSCRIPTION. Drafting into the military
service of the state; compulsory military service
falling upon all male subjects evenly, within or
under certain specified ages. Kneedler v. Lane,
45 Pa. 267. Certain classes, however, may be exempt, and drafted men are sometimes released
upon furnishing acceptable substitutes or by the
payment of a sum of money. Davis, Mil. Law 51.
CONSECRATE. In ecclesiastical law. To dedicate to sacred purposes, as a bishop by imposition
of hands, or a church or churchyard by prayers,
etc. Consecration is performed by a bishop or
archbishop.
CONSECRATIO EST PERIODUS ELECTIONIS;
ELECTIO EST PRZEAMBULA CONSECRATIONIS. 2 Rolle, 102. Consecration is the termination
of election; election is the preamble of consecration.
CONSECUTIVE. Successive; succeeding one another in regular order. Walsworth v. Casassa,
219 Mass. 200, 106 N.E. 847; to follow in uninterrupted succession. People v. Hirschbein, 60 P.2d
532, 16 Cal.App.2d 458.
CONSEDO. Sp. A term used in conveyances under Mexican law, equivalent to the English word
"grant." Mulford v. Le Franc, 26 Cal. 103.
CONSEIL D'ETAT. Council of state. One of the
oldest of French institutions, its origin dating
back to 1302. It decides or advises upon state
questions and measures proposed for legislation,
submitted to it by the President of the Republic,
by the members of the Cabinet, and by Parliament. Coxe, Manual of French Law.
CONSEIL DE FAMILLE. In French law. A family council. Certain acts require the sanction of
376
CONSENT
this body. For example, a guardian can neither
accept nor reject an inheritance to which the
minor has succeeded without its authority, (Code
Nap. 461;) nor can he accept for the child a gift
inter vivos without the like authority, (Code Nap.
463.)
CONSEIL DE PRUDHOMMES. In French law.
One of a species of trade tribunals, charged with
settling differences between masters and workmen. They endeavor, in the first instance, to conciliate the parties. In default, they adjudicate
upon the questions in dispute. Their decisions are
final up to 200f. Beyond that amount, appeals
lie to the tribunals of commerce. Arg. Fr. Merc.
Law, 553.
CONSEIL JUDICIAIRE. In French law. When
a person has been subjected to an interdiction on
the ground of his insane extravagance, but the
interdiction is not absolute, but limited only, the
court of first instance, which grants the interdiction, appoints a council, called by this name, with
whose assistance the party may bring or defend
actions, or compromise the same, alienate his estate, make or incur loans, and the like. Brown.
CONSENSUAL CONTRACT. A term derived
from the civil law, denoting a contract founded
upon and completed by the mere consent of the
contracting parties, without any external formality or symbolic act to fix the obligation.
CONSENSUAL MARRIAGE. Marriage resting
simply on consent per verba de prsenti, between
competent parties. Such marriage is valid. Fisher v. Fisher, 250 N.Y. 313, 165 N.E. 460, 461, 61 A.
L.R. 1523. See, also, Common-law Marriage.
CONSENSUS AD IDEM. An agreement of parties to the same thing; a meeting of minds.
CONSENSUS EST VOLUNTAS PLURIUM AD
QUOS RES PERTINET, SIMUL JUNCTA. Lofft,
514. Consent is the conjoint will of several persons to whom the thing belongs.
CONSENSUS FACIT LEGEM. Consent makes
the law. (A contract is law between the parties
agreeing to be bound by it.) Branch, Princ.
CONSENSUS, NON CONCUBITUS, FACIT NUPTIA S VEL MATRIMONIUM, ET CONSENTIRE
NON POSSUNT ANTE ANNOS NUBILES. 6
Coke, 22. Consent, and not cohabitation (or coition), constitutes nuptials or marriage, and persons cannot consent before marriageable years.
1 Bl.Comm. 434; Co. Litt. 33a; Dig. 50, 17, 30.
See 10 Cl. & F. 534; Broom, Max. 505.
CONSENSUS TOLLIT ERROREM. Co. Litt. 126.
Consent (acquiescence) removes mistake. 2 Inst.
123; Rogers v. Cruger, 7 Johns. (N.Y.) 611; Kuhler v. Hoover, 4 Pa. 335; Wilkinson's Appeal, 65
Pa. 190,
CONSENSUS VOLUNTAS MULTOR UM AD
QUOS RES PERTINET, SIMUL JUNCTA. Consent is the united will of several interested in one
subject-matter. Davis, 48; Branch, Princ,
CONSENT. A concurrence of wills. Voluntarily
yielding the will to the proposition of another;
acquiescence or compliance therewith. Twin
Ports Oil Co. v. Pure Oil Co., D.C.Minn., 26 F.Supp.
366, 371. Agreement; the act or result of coming
into harmony or accord. Glantz v. Gabel, 66
Mont. 134, 212 P. 858, 860.
Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on
each side. 1 Story, Eq.Jur. § 222; Lervick v. White Top
Cabs, La.App., 10 So.2d 67, 73. It means voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice to do something proposed by another. People v. Kangiesser, 44 Cal.
App. 345, 186 P. 388, 389. It supposes a physical power to
act, a moral power of acting, and a serious, determined,
and free use of these powers. Fonblanque, Eq. b. 1, c. 2,
s. 1; New Jersey Mfrs' Casualty Ins. Co., 148 A. 790, 791,
106 N.J.L. 238. Consent is implied in every agreement. It
is an act unclouded by fraud, duress, or sometimes even
mistake. Heine v. Wright, 76 Cal.App. 338, 244 P. 955, 956.
There is a difference between consenting and submitting.
Every consent involves a submission; but a mere submission does not necessarily involve consent. 9 Car. & P. 722.
"Consent" is an active acquiescence as distinguished
from "assent," meaning a silent acquiescence. People v.
Lowe, 205 N.Y.S. 77, 78, 209 App.Div. 498. "Consent"
means an active circumstance of concurrence; "assent" is
a passive act of concurrence before another does the act
charged. Perryman v. State, 63 Ga.App. 819, 12 S.E.2d
388, 390. But the two terms may be used interchangeably.
Bartlett v. Sundin, 169 N.Y.S. 391, 393, 182 App.Div. 117.
"Consent" is sometimes synonymous merely with "waiver." Dahlquist v. Denver & R. G. R. Co., 52 Utah, 438, 174
P. 833, 844. See, also, Seegmiller v. Day, C.C.A.Ill., 249 F.
177, 178; Toledo Fence & Post Co. v. Lyons, C.C.A.Ohio,
290 F. 637, 640.
As used in the law of rape "consent" means consent of
the will, and submission under the influence of fear or terror cannot amount to real consent. Hallmark v. State, 22
Okl. Cr. 422, 212 P. 322, 328. There must be an exercise
of intelligence based on knowledge of its significance and
moral quality and there must be a choice between resistance and assent. State v. Schwab, 109 Ohio St. 532, 143 N.
E. 29, 31. And if woman resists to the point where further
resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not
"consent". People v. Mcllvain, 130 P.2d 131, 135, 55 Cal.
App.2d 322.
See Assent.
Consent decree. See Decree.
Consent judgment. See Judgment.
Express Consent. That directly given, either
viva voce or in writing. It is positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning. Pacific Nat. Agricultural Credit Corporation v. Hagerman, 40
N.M. 116, 55 P.2d 667, 670.
Express or Implied Consent. Under motor vehicle liability insurance law providing that policy
should cover any person responsible for operation
of insured vehicle with insured's express or implied consent, words "express or implied consent"
primarily modify not the word "operation", but the
word "responsible", and imply possession of vehicle with consent of owner and responsibility
to him. Hurley v. Flanagan, 313 Mass. 567, 48 N.
E.2d 621, 624.
Implied Consent. That manifested by signs, actions, or facts, or by inaction or silence, which
raise a presumption that the consent has been
377
CONSENT
given. Avery v. State, 12 Ga.App. 562, 77 S.E.
892. See State v. Horton, 247 Mo. 657, 153 S.W.
1051, 1053; White v. White, 84 N.J.Eq. 512, 95 A.
197, 199.
CONSENT RULE. An entry of record by the defendant, confessing the lease, entry, and ouster by
the plaintiff, in an action of ejectment. A superseded instrument, in which a defendant in an action of ejectment specified for what purpose he
intended to defend, and undertook to confess not
only the fictitious lease, entry, and ouster, but that
he was in possession. See Ad.Eject. 233.
CONSENTIBLE LINES. See Line.
CONSENTIENTES ET AGENTES PARI PCENA
PLECTENTUR. They who consent to an act, and
they who do it, shall be visited with equal punish.
ment. 5 Coke 80.
CONSENTIRE MATRIMONIO NON POSSUNT
INFRA [ANTE] ANNOS NU'BILES. Parties cannot consent to marriage within the years of marriage, [before the age of consent.] 5 Coke 80;
6 Coke 22.
CONSEQUENCE. The result following in natural
sequence from an event which is adapted to produce, or to aid in producing, such result;—the
correlative of "cause." Board of Trustees of Firemen's Relief and Pension Fund for City of Tulsa
v. Miller, 186 Okl. 586, 99 P.2d 146, 147.
In Consequence of
This phrase has been used as equivalent to fhe
words, "in the event of." In re Spalding's Estate,
84 Cal.App. 371, 258 P. 154, 155.
CONSEQUENTLE NON EST CONSEQUENTIA.
Bac.Max. The consequence of a consequence exists not.
CONSEQUENTIAL CONTEMPT. The ancient
name for what is now known as "constructive"
contempt of court. Ex parte Wright, 65 Ind. 508.
See Contempt.
CONSEQUENTIAL DAMAGES. See Damages.
CONSEQUENTS. In Scotch law. Implied powers or authorities. Things which follow, usually
by implication of law. A commission being given to execute any work, every power necessary
to carry it on is implied. 1 Karnes, Eq. 242.
CONSERVATOR. A guardian; protector; preserver.
"When any person having property shall be found to be
incapable of managing his affairs, by the court of probate
in the district in which he resides, * * * it shall appoint
some person to be his conservator, who, upon giving a probate bond, shall have the charge of the person and estate of
such incapable person." Gen.St.Conn.1875, p. 346, § 1
( Gen.St.1930, § 4815) ; Hutchins v. Johnson, 12 Conn. 376,
30 Am. Dec. 622.
One whose business it is to attend to the enforcement of certain statutes. See Conservators
of the Peace, infra.
One whose duty requires him to prevent and arrest for
breaches of the peace in his presence, but not to arraign
and try for them. Marcuchi v. Norfolk & W. Ry. Co., 81
W.Va. 548, 94 S.E. 979, 980.
A delegated umpire or standing arbitrator,
chosen to compose and adjust difficulties arising
between two parties. Cowell.
CONSERVATOR TRUCIS. Lat. An official appointed under an English act of 1414 passed to
prevent breaches of truces made, or of safe conducts granted, by the king. 2 Holdsw.Hist.E.L.
392; 4 Bla.Comm. 69.
CONSERVATORS OF RIVERS. Commissioners
or trustees in whom the control of a certain river
is vested, in England, by act of parliament.
CONSERVATORS OF THE PEACE. Officers authorized to preserve and maintain the public peace.
In England, these officers were locally elected by
the people until the reign of Edward III, when
their appointment was vested in the king. Their
duties were to prevent and arrest for breaches of
the peace, but they had no power to arraign and
try the offender until about 1360, when this authority was given to them by act of parliament,
and ", then they acquired the more honorable appellation of justices of the peace." 1 Bl.Comm. 351.
Even after this time, however, many public officers were
styled "conservators of the peace," not as a distinct office
but by virtue of the duties and authorities pertaining to
their offices. In this sense the term may include the king
himself, the lord chancellor, justices of the king's bench,
master of the rolls, coroners, sheriffs, constables, etc. 1
BI.Comm. 350. See Smith v. Abbott, 17 N.J.L. 358. In
Texas, the constitution provides that county judges shall
be conservators of the peace. Const.Tex. art. 4, § 15;
Jones v. State, Tex.Cr.App., 65 S.W. 92. The Constitution
of Delaware (1831) provides that: "The members of the
senate and house of representatives, the chancellor, the
judges, and the attorney-general shall, by virtue of their
offices, be conservators of the peace throughout the state;
and the treasurer, secretary, and prothonotaries, registers,
recorders, sheriffs, and coroners, shall, by virtue of their
offices, be conservators thereof within the counties respectively in which they reside."
CONSERVE. To save from loss. U. S. v. Mammoth Oil Co., D.C.Wyo., 5 F.2d 330, 351.
CONSIDER. To fix the mind on, with a view to
careful examination; to examine; to inspect.
Eastman Kodak Co. v. Richards, 204 N.Y.S. 246,
248, 123 Misc. 83. To deliberate about and ponder
over. People v. Tru-Sport Pub. Co., 291 N.Y.S. 449,
457, 160 Misc. 628. To entertain or give heed to.
Rodolf v. Board of Com'rs of Tulsa County, 122
Okl. 120, 251 P. 740, 741. See, also, Considered.
CONSIDERABLE. Worthy of consideration; required to be observed. Gougar v. Buffalo Specialty
Co., 26 Colo.App. 8, 141 P. 511, 514.
A "considerable" number, as of persons, does not necessarily mean a very great or any particular number of persons; the term "considerable" being merely relative.
People v. Kings County Iron Foundry, 209 N.Y. 207, 102 N.
E. 598, 599.
CONSIDERATIO CURIAE. The judgment of the
court.
CONSIDERATION. Practice. A technical term
indicating that a tribunal has heard and judicially
378
CONSIDERATION
determined matters submitted to it. Meaney v.
State Industrial Accident Commission, 113 Or, 371,
232 P. 789, 791.
Concurrent Consideration. One which arises at
the same time or where the promises are simultaneous.
Contracts
The inducement to a contract. The cause, mo•
tive, price, or impelling influence which induces a
contracting party to enter into a contract. The
reason or material cause of a contract. 2 Bla.
Comm. 443; Cassinelli v. Stacy, 238 Ky. 827, 38
S.W.2d 980, 983.
Continuing Consideration. One consisting in
acts or performances which must necessarily extend over a considerable period of time.
Consideration is not to be confounded with motive. Consideration means something which is of value in the eye
of the law, moving from the plaintiff, either of benefit to
the plaintiff or of detriment to the defendant. Patteson,
J., in Langd.Sel.Cas.Contr. 168; s. c. 2 Q.B. 851; Miller
v. Bank of Holly Springs, 131 Miss. 55, 95 So. 129, 130, 31
A.L.R. 698. "Nothing is consideration that is not regarded as such by both parties." Schlecht v. Schlecht, 168
Minn. 168, 209 N.W. 883, 887. And "price" and "consideration," though sometimes the same, are not always identical. Oregon Home Builders v. Crowley, 87 Or. 517, 170 P.
718, 721.
The "inducement" for a contract is that which influences
the act, while "consideration" means the parting with
something by the one from whom it moves. E. F. Spears
& Sons v. Winkle, 186 Ky. 585, 217 S.W. 691, 692.
An act or forbearance, or the promise thereof,
which is offered by one party to an agreement, and
accepted by the other as an inducement to that
other's act or promise. Poll.Contr. 91.
Any benefit conferred, or agreed to be conferred,
upon the promisor, by any other person, to which
the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such
person, other than such as he is at the time of
consent lawfully bound to suffer, as an inducement to the promisor. Hence doing only of what
one is already under obligation to do is not "consideration" for a contract. Hogan v. Supreme
Camp of the American Woodmen, 146 Fla. 413, 1
So.2d 256, 258.
Any act of the plaintiff (or the promisee) from
which the defendant (the promisor) or a stranger
derives a benefit or advantage, or any labor, detriment, Jar inconvenience sustained by the plaintiff,
however small, if such act is performed or inconvenience suffered by the plaintiff by the consent,
express or implied, of the defendant. 3 Scott, 250.
A benefit to the promisor, or a loss or detriment to the
promisee. Harris v. Johnson, 75 Wash. 291, 134 P. 1048,
1050; Fowler v. Smith, 24 Ohio App. 324, 156 N.E. 913, 914.
Or benefit to a third party. Wellshire Land Co. v. City and
County of Denver, 103 Colo. 416, 87 P.2d 1. But nothing is
"consideration" that is not regarded as such by both parties. Michael v. Holland, 111 Ind. App. 34, 40 N.E.2d 362,
365.
Some right, interest, gain, advantage, benefit, or profit
to one party, usually the promisor, or some forbearance,
detriment, prejudice, inconvenience, disadvantage, loss, or
responsibility, act, or service given, suffered, or undertaken
by the promisee. Exum v. Lynch, 125 S.E. 15, 17, 188 N. C.
392; Furman University v. Waller, 117 S.E. 356, 358, 124 S.
C. 68, 33 A.L.R. 615; Robinson v. Oliver, 156 N.Y.S. 896,
898, 171 App. Div. 349; L.R. 10 Ex. 162; Train v. Gold, 5
Pick. (Mass.) 380; Bankers Trust Co. v. Economy Coal Co.,
224 Iowa 36, 276 N.W. 16, 20.
Considerations are either executed or executory;
express or implied; good or valuable. See definitions infra.
Adequate Consideration, See Adequate,
Equitable or Moral Considerations. Considerations which are devoid of efficacy in point of strict
law, but are founded upon a moral duty, and may
be made the basis of an express promise.
Executed or Executory Considerations. The
former are acts done or values given before or
at the time of making the contract; the latter
are promises to give or do something in future.
Express or Implied Considerations. The former
are those which are specifically stated in a deed,
contract, or other instrument; the latter are those
inferred or supposed by the law from the acts or
situation of the parties.
Express consideration is a consideration which is distinctly and specifically named in the written contract or
in the oral agreement of the parties.
Failure of Consideration. See Failure of Consideration.
Fair and Valuable Consideration. See Fair and
Valuable Consideration.
Fair Consideration, See Fair Consideration.
Good Consideration. Such as is founded on natural duty and affection, or on a strong moral obligation. Chit.Cont. 7. A consideration for love
and affection entertained by and for one within
degree recognized by law. Gay v. Fricks, 211 Ala.
119, 99 So. 846, 847. See, also, Berry v. Berry, 83
W.Va. 763, 99 S.E. 79.
Motives of natural duty, generosity, and prudence come
under this class. 2 Bla.Comm. 297; Doran v. McConlogue,
150 Pa. 98, 24 A. 357; Mascolo v. Montesanto, 61 Conn. 50,
23 A. 714, 29 Am.St.Rep. 170.
The term is sometimes used in the sense of a consideration valid in point of law; and it then includes a valuable
or sufficient as well as a meritorious consideration. Hodgson v. Butts, 3 Cra. (U.S.) 140, 2 L. Ed. 391; Lang v.
Johnson, 24 N.H. 302; Ambl. 598. Generally, however,
good is used in antithesis to valuable consideration (q. v.).
Gratuitous Consideration. One which is not
founded upon any such loss, injury, or inconvenience to the party to whom it moves as to make it
valid in law.
Illegal Consideration. An act which if done, or
a promise which if enforced, would be prejudicial
to the public interest. Harriman, Cont. 101.
Implied Considerations. See Express or Implied
Considerations, supra.
Impossible Consideration. One which cannot be
performed.
Inadequate Consideration. See that title.
Legal Consideration. One recognized or permitted by the law as valid and lawful; as distinguished from such as are illegal or immoral. The
term is also sometimes used as equivalent to
379
CONSIDERATION
"good" or "sufficient" consideration. See Sampson v. Swift, 11 Vt. 315; Albert Lea College v.
Brown, 88 Minn. 524, 93 N.W. 672, 60 L.R.A. 870.
Meritorious Consideration. See Good Consideration.
Moral Considerations. See Equitable or Moral
Considerations, supra.
Nominal Consideration. One bearing no relation to the real value of the contract or article, as
where a parcel of land is described in a deed as
being sold for "one dollar," no actual consideration
passing, or the real consideration being concealed.
This term is also sometimes used as descriptive of
an inflated or exaggerated value placed upon property for the purpose of an exchange. Boyd v. Watson, 101 Iowa 214, 70 N.W. 123; Emmi v. Patane,
220 N.Y.S. 495, 498, 128 Misc. 901.
Past Consideration. An act done before the contract is made, which is ordinarily by itself no consideration for a promise. Anson, Cont. 82; Witt v.
Wilson, Tex.Civ.App., 160 S.W. 309, 310.
As to time, considerations may be of the past, present,
or future. Those which are present or future will support
a contract not void for other reasons. Story, Contr. 71.
Pecuniary Consideration. A consideration for
an act or forbearance which consists either in
money presently passing or in money to be paid in
the future, including a promise to pay a debt in
full which otherwise would be released or diminished by bankruptcy or insolvency proceedings.
See Phelps v. Thomas, 6 Gray (Mass.) 328; In re
Ekings, D.C.N.J., 6 F. 170.
Sufficient Consideration. One deemed by the
law of sufficient value to support an ordinary contract between parties, or one sufficient to support
the particular transaction. Golson v. Dunlap, 73
Cal. 157, 14 P. 576.
Valuable Consideration. See Consideration.
Want of Consideration. See Want of Consideration.
CONSIDERATUM EST PER CURIAM. (It is considered by the court.) The formal and ordinary
commencement of a judgment. Baker v. State,
3 Ark. 491.
CONSIDERATUR. L. Lat. It is considered.
Held to mean the same with consideratum est.
2 Strange, 874.
CONSIDERED. Deemed; determined; adjudged;
reasonably regarded. State v. District Court . of
Eighth Judicial Dist. in and for Cascade County,
64 Mont. 181, 208 P. 952, 955. See Consider.
Evidence may be said to have been "considered" when it
has been reviewed by a court to determine whether any
probative force should be given it. Taylor v. Gossett, Tex.
Civ.App., 269 S.W. 230, 233.
CONSIGN. In the civil law. To deposit in the
custody of a third person a thing belonging to
the debtor, for the benefit of the creditor, under
the authority of a court of justice. Poth.Obl. pt.
3, c. 1, art. 8.
In Commercial Law. To deliver goods to a carrier to be transmitted to a designated factor or
agent. Powell v. Wallace, 44 Kan. 656, 25 P. 42;
Ide Mfg. Co. v. Sager Mfg. Co., 82 Ill.App. 685.
To deliver or transfer as a charge or trust; to
commit, intrust, give in trust; to transfer from
oneself to the care of another; to send or transmit
goods to a merchant, factor, or agent for sale; to
deposit with another to be sold, disposed of, or
called for. Edwards v. Baldwin Piano Co., 79 Fla.
143, 83 So. 915, 918.
CONSIGNATION. In Scotch law. The payment
of money into the hands of a third party, when
the creditor refuses to accept of it. The person
to whom the money is given is termed the "consignatory." Bell.
In French law. A deposit which a debtor
makes of the thing that he owes into the hands of
a third person, and under the authority of a court
of justice. 1 Poth.Obl. 536; Weld v. Hadley, 1 N.
H. 304.
CONSIGNEE. In mercantile law. One to whom
a consignment is made. The person to whom'
goods are shipped for sale. Lyon v. Alvord, 18
Conn. 80; Comm. v. Harris, 168 Pa. 619, 32 A.
92. One to whom goods are consigned, shipped, or
otherwise , transmitted. State v. Chadbourne, 132
Me. 5, 164 A. 630, 631. The one to whom the carrier may lawfully make delivery in accordance
with its contract of carriage. Great Northern
Pac. S. S. Co. v. Rainier Brewing Co., C.C.A.Wash.,
255 F. 762, 764; One to whom merchandise has
been delivered. International Trust Co. v. Webster
Nat. Bank, 258 Mass. 17, 154 N.E. 330, 332, 49 A.
L.R. 267; Under a statute, the person who, under
circumstances in which he might be entitled to
the delivery of the goods, represents that he is so
entitled, tenders a bond in the statutory form, and
requests delivery. St. Louis, I. M. & S. R. Co. v.
Bankers' Surety Co., 115 Ark. 58, 172 S.W. 266, 268.
CONSIGNMENT. The act or process of consigning goods; the transportation of goods consigned;
an article or collection of goods sent to a factor;
goods or property sent, by the aid of a common
carrier, from one person in one place to another
person in another place; something consigned and
shipped. See Consign. In re Taylor, D.C.Mich.,
46 F.2d 326, 328.
Feature which distinguishes "conditional sale" from
"consignment" is that in the former the purchaser undertakes an absolute obligation to pay for the goods, whereas
the latter is nothing more than a bailment for sale. In re
Sachs, D.C.Md., 31 F.2d 799, 800.
In stockyard parlance, all the livestock of one species delivered in the name of one person to one market agency to
be offered for sale during the trading hours of one day.
Acker v. U. S., D.C.I11., 12 F.Supp. 776, 780. Mutual Transfer Corporation of Galax v. Commonwealth, 172 Va. 622, 1
S.E.2d 477, 479.
CONSIGNOR. One who sends or makes a consignment; a shipper of goods.
CONSILIA MULTORUM QU2ERUNTUR IN MAGNIS. 4 Inst. 1. The counsels of many are required in great things.
380
CONSOLIDATION
CONSILIARIUS. In the civil law. A counsellor, • CONSOCIATIO. Lat. An association, fellowship,
or partnership. Applied by some of the older
as distinguished from a pleader or advocate. An
writers to a corporation, and even to a nation conassistant judge. One who participates in, the desidered as a body politic. Thomas v. Dakin, 22
cisions. Du Cange.
Wend. (N.Y.) 104.
CONSILIUM. A day appointed to hear the counCONSOLATION. Comfort, contentment, ease, ensel of both parties. A case set down for argument.
joyment, happiness, pleasure, satisfaction. NaIt is commonly used for the day appointed for
tional Surety Co. v. Jarrett, 95 W.Va. 420, 121 S.E.
the argument of a demurrer, or errors assigned.
291, 295.
1 Tidd, Pr. 438; 2 Tidd, Pr. 684, 1122; 1 Sell.Pr.
336; 1 Archb.Pr. 191, 246.
CONSIMILI CASU. In practice. A writ of entry,
framed under the provisions of the statute Westminster 2, (13 Edw. I.,) c. 24, which lay for the
benefit of the reversioner, where a tenant by the
curtesy aliened in fee or for life. 3 Bla.Comm.,
4th Dublin ed. 183 n.; Bac.Abr. Court of Chancery
( A).
Many other new writs were framed under the provisions
of this statute; but this particular writ was known emphatically by the title here defined. The writ is now
practically obsolete. See 3 Bla.Comm. 51.
CONSIST. To stand together, to be composed of
or made up of. Hoskins Mfg. Co. v. General Electric Co., D.C.I11., 212 F. 422; In re Clark's Estate,
100 Vt. 217, 136 A. 389, 393. See Consisting.
CONSISTENT. Having agreement with itself or
something else; accordant; harmonious; congruous; compatible; compliable; not contradictory. Baldwin-Heckes Co. v. Kammerlohr, 123
Neb. 317, 242 N.W. 661, 663; Ryan v. Roach Drug
Co., 113 Old. 130, 239 P. 912, 914.
"Consistent with" means in harmony with. Shay v.
Roth, 64 Cal.App. 314, 221 P. 967, 969.
CONSISTING. Being composed or made up of.
This word is not synonymous with "including;"
for the latter, when used in connection with a number of specified objects, always implies that there
may be others which are not mentioned. In re
Wright's Estate, 166 Misc. 52, 2 N.Y.S.2d 25, 28.
CONSISTOR. A magistrate. Jacob L. D.
CONSISTORIUM. The state council of the Roman
emperors. Mackeld.Rom.Law, § 58.
CONSISTORY. An assembly of cardinals convoked by the pope.
A tribunal (praetorium).
CONSISTORY COURTS. The courts of diocesan
bishops held in their several cathedrals (before the
bishop's chancellor, or commissary, who is the
judge) for the trial of all ecclesiastical causes arising within their respective dioceses, and also for
granting probates and administrations. Mozley &
Whitley; 1 Holdsw.Hist.E.L. 369, citing L.R. 1902,
1 K.B. 816. From the sentence of these courts an
appeal lies to the Provincial Court of the archbishop of each province respectively. 2 Steph.
Comm. 230; 3 Steph.Comm. 430; 3 Bla.Comm. 64;
1 Woodd.Lect. 145; Halifax, An. b. 3, c. 10, n. 12.
CONSOBRINI. In the civil law. Cousins-german,
in general; brothers' and sisters' children, considered in their relation to each other.
CONSOLATO DEL MARE. The name of a code
of sea-laws, said to have been compiled by order
of the kings of Arragon (or, according to other
authorities, at Pisa or Barcelona) in the fourteenth
century, which comprised the maritime ordinances
of the Roman emperors, of France and Spain, and
of the Italian commercial powers. This compilation exercised a considerable influence in the formation of European maritime law.
CONSOLIDATE. In a general sense, to unite into
one mass or body, as to consolidate the forces
of an army, or various funds. In parliamentary
usage, to consolidate two bills is to unite them
into one. In law, to consolidate benefices is to
combine them into one. The term means something more than to rearrange or redivide. Fairview v. Durland, 45 Iowa 56.
To make solid or firm; to unite, compress, or
pack together and form into a more compact mass,
body, or system. Marfield v. Cincinnati, D. & T.
Traction Co., 111 Ohio St. 139, 144 N.E. 689, 696,
40 A.L.R. 357. To cause to become united and extinguished in a superior right or estate by both becoming vested in the same person. Swaim v.
Smith, 174 Tenn. 688, 130 S.W.2d 116, 120.
CONSOLIDATED FUND. In England. (Usually
abbreviated to Consols.) A fund for the payment
of the public debt.
CONSOLIDATED LAWS OR STATUTES. A collection or compilation into one statute or one code
or volume of all the laws of the state in general,
or of those relating to a particular subject; nearly
the same as "compiled laws" or "compiled statutes." See Compilation. And see Ellis v. Parsell,
100 Mich. 170, 58 N.W. 839.
CONSOLIDATED ORDERS. The orders regulating the practice of the English court of ohancery,
which were issued, in 1860, in substitution for the
various orders which had previously been promulgated from time to time.
CONSOLIDATION. Act of consolidating, or the
status of being consolidated. O'Malley v. Wilson,
182 Ga. 97, 185 S.E. 109, 114.
In the civil law. The union of the usufruct
with the estate out of which it issues, in the same
person; which happens when the usufructuary acquires the estate, or vice versa. In either case the
usufruct is extinct. Lec.El.Dr.Rom. 424.
In ecclesiastical law. The union of two or
more benefices in one. Cowell.
In practice. The union of two or more actions,
as in the same declaration, or for the purpose of
381
CONSOLIDATION
trial or appellate review. See Consolidation of
Actions.
In Scotch law. The junction of the property
and superiority of an estate, where they have
been disjoined. Bell.
Consolidation of actions. The act or process of
uniting several actions into one trial and judgment, by order of a court, where all the actions are
between the same parties, pending in the same
court, and involving substantially the same subject-matter, issues and defenses; or the court may
order that one of the actions be tried, and the others decided without trial according to the judgment in the one selected. 249 N.Y.S. 33, 36, 139
Misc. 564; National Union Fire Ins. Co. v. Chesapeake and 0. Ry. Co., D.C.Ky., 4 F.Supp. 25, 30.
It means the merging of two or more actions into one
so that they lose their separate identity, while in trial of
"several actions together" each retains its separate character and requires the entry of a separate judgment.
Ramswick v. Messerer, 200 Minn. 299, 274 N.W. 179;
Reeves v. Philadelphia Gas Works Co., 107 Pa.Super. 422,
164 A. 132, 134, 107.
CONSOLIDATION OF BENEFICES. The act or
process of uniting two or more of them into one.
CONSOLIDATIONS OF CORPORATIONS. Takes
place when two or more corporations are extinguished, and by the same process a new one is
created, taking over the assets and assuming the
liabilities of those passing out of existence. A unifying of two or more corporations into a single
new corporation having the combined capital,
franchises, and powers of all its constituents.
Alabama Power Co. v. McNinch, 68 App.D.C. 132,
94 F.2d 601, 611, 612. Freeman v. Hiznay, 349 Pa.
89, 36 A.2d 509; Murphy v. Niehus, 50 Ohio App.
299, 198 N.E. 197, 200.
Merger distinguished. In a "merger," one corporation
absorbs the other and remains in existence while the other
is dissolved, and in a "consolidation" a new corporation is
created and the consolidating corporations are extinguished. Von Weise v. Commissioner of Internal Revenue,
C.C.A., 69 F.2d 439, 442; Alabama Power Co. v. McNinch,
94 F.2d 601, 610, 611, 612, 68 App.D.C. 132. See, also,
Merger.
Consolidation rule. In practice. A rule or order of court requiring a plaintiff who has instituted separate suits upon several claims against the
same defendant, to consolidate them in one action,
where that can be done consistently with the rules
of pleading. Brown v. Scott, 1 Dall. (Pa.) 147, 1
L.Ed. 74; Groff v. Musser, 3 Serg. & R. (Pa.) 264;
2 Archb.Pr. 180. The Federal courts are authorized to consolidate actions involving a common question of law or fact. Federal Rules of
Civil Procedure, Rule 42, 28 U.S.C.A.
CONSOLS. An abbreviation of the expression
"consolidated annuities," and used in modern times
as a name of various funds united in one for
the payment of the British national debt. Also, a
name given to certain issues of bonds of the state
of South Carolina. Whaley v. Gaillard, 21 S.C. 568.
See Consolidated Fund.
CONSONANT STATEMENT. A prior declaration
of a witness whose testimony has been attacked
and whose credibility stands impeached, which
the court will allow to be proved by the person
to whom the declaration was made in order to
support the credibility of the witness and which
but for the existence of such impeachment would
ordinarily be excluded as hearsay. Commonwealth v. White, 16 A.2d 407, 409, 340 Pa. 139.
CONSORTIO MALORUM ME QUOQUE MALUM
FACIT, Moore, 817. The company of wicked men
makes me also wicked.
CONSORTIUM. Conjugal fellowship of husband
and wife, and the right of each to the company,
co-operation, affection, and aid of the other in
every conjugal relation. McMillan v. Smith, 47
Ga.App. 646, 171 S.E. 169, 170; Shedrick v. Lathrop, 106 Vt. 311, 172 A. 630, 632; Harris v. Kunkel,
227 Wis. 435, 278 N.W. 868, 869.
The term includes the exclusive right to the services of
the spouse, and to his or her society, companionship, and
conjugal affection. Smith v. Nicholas Bldg. Co., 93 Ohio
St. 101, 112 N.E. 204.
In its original application the term was not confined to
society, companionship, and conjugal affection, but included service as a prominent, if not the predominant, factornot so much the service resulting in the performance of
labor or the earning of wages as the service which contributed aid and assistance in all the relations of domestic
life. Hinnant v. Tide Water Power Co., 189 N.C. 120, 126
S.E. 307, 309, 37 A.L.R. 889.
In the civil law. A union of fortunes; a lawful
Roman marriage. The joining of several persons
as parties to one action.
In old English law, the term signified company
or society, and in the language of pleading, as in
the phrase per quod consortium amisit, it has substantially the same meaning, viz., the companionship or society of a wife. 3 Bla.Comm. 140; Kelley v. Railroad Co., 168 Mass. 308, 46 N.E. 1063,
38 L.R.A. 631, 60 Am.St.Rep. 397.
CONSORTSHIP. In maritime law. An agreement or stipulation between the owners of different vessels that they shall keep in company,
mutually aid, instead of interfering with each other, in wrecking and salvage, and share any money
awarded as salvage, whether earned by one vessel
or both. Andrews v. Wall, 3 How. 571, 11 L.Ed.
729.
CONSPICUOUS PLACE. Within the meaning of
a statute relating to the posting of notices, a "conspicuous place" means one which is reasonably calculated to impart the information in question.
Didier v. Webster Mines Corporation, 49 Nev. 5,
234 P. 520, 523.
CONSPIRACY. In criminal law. A combination
or confederacy between two or more persons
formed for the purpose of committing, by their
joint efforts, some unlawful or criminal act, or
some act which is innocent in itself, but becomes
unlawful when done by the concerted action of
the conspirators, or for the purpose of using criminal or unlawful means to the commission of an
act not in itself unlawful. Pettibone v. U. S., 148
U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; Mitchell v.
Hitchman Coal & Coke Co., C.C.A.W.Va., 214 F.
685, 708; Hamilton v. Cooley, 184 N.E. 568, 571,
382
CONSTABLE
99 Ind.App. 1; Browning v. Browning, 226 Mo.
App. 322, 41 S.W.2d 860, 868.
are conspirators in treasonable purposes; as for plotting
against the government. Wharton.
A combination, or an agreement between two or more
persons, for accomplishing an unlawful end or a lawful end
by unlawful means. 4 B. & Ad. 345; Cumberland Telephone & Telegraph Co. v. Stevens, D.C.Miss., 274 F. 745,
746; Lauf v. E. G. Shinner & Co., C.C.A.Wis., 82 F.2d 68,
72; Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458, 464.
A partnership in criminal purposes. Marino v. United
States, C.C.A.Cal., 91 F.2d 691, 113 A.L.R. 975.
The essence of "conspiracy" is an agreement, together
with an overt act, to do an unlawful act, or do a lawful
act in an unlawful manner. Cooper v: O'Connor, 99 F.2d
135, 142, 69 App.D.C. 100, 118 A.L.R. 1440. Mere knowledge, acquiescence, approval, or attempt on part of one to
perpetrate illegal act is insufficient. People v. Link, 365
Ill. 266, 6 N.E.2d 201.
A conspiracy may be a continuing one; actors may drop
out, and others drop in; the details of operation may
change from time to time; the members need nit know
each other or the part played by others; a member need
not know all the details of the plan or the operations; he
must, however, know the purpose of the conspiracy and
agree to become a party to a plan to effectuate that purpose. Craig v. U. S., C.C.A.Cal., 81 F.2d 816, 822.
A consultation or agreement between two or more persons,
either falsely to accuse another of a crime punishable by
law; or wrongfully to injure or prejudice a third person,
or any body of men, in any manner ; or to commit any
offense punishable by law; or to do any act with intent
to prevent the course of justice; or to effect a legal purpose with a corrupt intent, or by improper means. Hawk.
P.C. c. 72, 2; Archb.Crim.P1. 390, adding also combinations by journeymen to raise wages. State v. Murphy, 6
Ala. 765, 41 Am. Dec. 79.
CONSPIRE. To engage in conspiracy. Wright v.
United States, C.C.A.La., 48 C.C.A. 37, 108 F. 805,
809.
Civil and Criminal Conspiracies
The term "civil" is used to designate a conspiracy which will furnish ground for a civil action,
as where, in carrying out the design of the conspirators, overt acts are done causing legal damage, the person injured has a right of action. It
is said that the gist of civil conspiracy is the injury or damage. While criminal conspiracy does
not require such overt acts, yet, so far as the
rights and remedies are concerned, all criminal
conspiracies are embraced within the civil conspiracies. Martha Mills v. Moseley, 50 Ga.App.
536, 179 S.E. 159.
Accurately speaking, there is no such thing as a civil action for conspiracy. The better view is that the damage
sustained, and not the conspiracy is the gist of the action.
The combination may be of no consequence except as bearing upon rules of evidence or the persons liable. Dahlquist
v. Mattson, 40 Idaho, 378, 233 P. 883, 885.
The essence of a "civil conspiracy" is a concert or combination to defraud or cause other injury to person or property, which results in damage to the person or property of
plaintiff. Conner v. Bryce, Sup., 170 N.Y.S. 94, 95.
CONSPIRATIONE. An ancient writ that lay
against conspirators. Reg.Orig. 134; Fitzh.Nat.
Brev. 114.
CONSPIRATORS. Persons guilty of a conspiracy. State v. Collins, 88 Mont. 514, 294 P. 957, 961,
73 A.L.R. 861.
Where two or more persons enter on a common enterprise or adventure and criminal offense is contemplated
each is a "conspirator". Kelly v. State, 31 Ala.App. 194,
13 So.2d 691, 692.
Those who bind themselves by oath, covenant, or other
alliance that each of them shall aid the other falsely and
maliciously to indict persons; or falsely to move and
maintain pleas, etc. 33 Edw. I. St. 2. Besides these, there
It carries with it the idea of agreement, concurrence and
combination, and hence is inapplicable to a single person
or thing, and one cannot agree or conspire with another.
who does not agree or conspire with him. Horton v. Johnson, 192 Ga. 338, 15 S.E.2d 605, 615.
CONSTABLE. In American law. An officer of
a municipal corporation (usually elected) whose
duties are similar to those of the sheriff, though
his powers are less and his jurisdiction smaller.
He is to preserve the public peace, execute the
process of magistrates' courts, and of some other
tribunals, serve writs, attend the sessions of the
criminal courts, have the custody of juries, and
discharge other functions sometimes assigned to
him by the local law or by statute. Allor v.
Wayne County, 43 Mich. 76, 4 N.W. 492.
In English law. A public civil officer, whose
proper and general duty is to keep the peace
within his district, though he is frequently charged with additional duties. 1 B1.Comm. 356.
There are "high," "petty," and "special" constables. See the definitions, infra.
In Medieval law. A high functionary under
the French and English kings, the dignity and
importance of whose office was second only to
that of the monarch. He was in general the leader of the royal armies, and had cognizance of all
matters pertaining to war and arms, exercising
both civil and military jurisdiction. He was also
charged with the conservation of the peace of
the. nation. Thus there was a "Constable of
France" and a "Lord High Constable of England."
Rich v. Industrial Commission, 80 Utah 511, 15
P.2d 641, 644.
Constable of a castle. In English law. An officer having charge of a castle; a warden, or keeper; otherwise called a "castellain." Stat. Westm.
1, c. 7 (3 Edw. I.) ; Spelman, Gloss.
Constable of England. (Called, also, "Mare
shal.") His office consisted in the care of the
common peace of the realm in deeds of arms and
matters of war. Lamb. Const. 4; 3 Steph. Comm.
47; 4 Bla. Comm. 92.
Constable of Scotland. An officer who was formerly entitled to command all the king's armies
in the absence of the king, and to take cognizance
of all crimes committed within four miles of the
king's person or of parliament, the privy council,
or any general convention of the states of the
kingdom. The office was hereditary in the family
of Errol, and was abolished by the 20 Geo. III,
c. 43. Bell; Ersk. Inst. 1, 3, 37.
Constable of the exchequer. An officer mentioned in Fleta, lib. 2, c. 31, and in 51 Hen. III,
stat. 5, cited by Cowell.
High constables. In England, officers appointed
in every hundred or franchise, whose proper duty
383
CONSTABLE
seems to be to keep the king's peace within their
respective hundreds. 1 Bl.Comm. 356; 3 Steph.
Comm. 47; Coke, 4th Inst. 267.
•
High constable of England, lord. His office has
been disused (except only upon great and solemn
occasions, as the coronation, or the like) since the
attainder of Stafford, Duke of Buckingham, in
the reign of Henry VII.
CONSTATE. To establish, constitute, or ordain.
"Constating instruments" of a corporation are
its charter, organic law, or the grant of powers
to it. See examples of the use of the term,
Green's Brice, Ultra Vires, p. 39; Ackerman v.
Halsey, 37 N.J.Eq. 363.
Petty constables. Inferior officers in every
town and parish, subordinate to the high constable of the hundred, whose principal duty is the
preservation of the peace, though they also have
other particular duties assigned to them by act
of parliament, particularly the service of the
summonses and the execution of the warrants of
justices of the peace. 1 Bl.Comm. 356; 3 Steph.
Comm. 47, 48.
Special constables. Persons appointed (with or
without their consent) by the magistrates to execute warrants on particular occasions, as in the
case of riots, etc.
C,ONSTABLEWICK. In English law. The territorial jurisdiction of a constable; as bailiwick is
of a bailiff or sheriff. 5 Nev. & M. 261.
CONSTABULARIUS. An officer of horse; an officer having charge of foot or horse; a naval
commander; an officer having charge of military
affairs generally. Spelman.
In England his power was early diminished and restricted to those duties which related to the preservation of the
king's peace. The office is now abolished in England, except as a matter of ceremony, and in France. Guyot, Rlp.
Univ.; Cowell.
CONSTITUENT. He who gives authority to another to act for him.
The term is used as a correlative to "attorney,"
to denote one who constitutes another his agent
or invests the other with authority to act for him.
Kunz v. Lowden, C.C.A.Kan., 124 F.2d 911, 913.
It is also used in the language of politics, as
a correlative to "representative," the constituents
of a legislator being those whom he represents
and whose interests he is to care for in public
affairs; usually the electors of his district.
CONSTITUERE. Lat. To appoint, constitute, establish, ordain, or undertake. Used principally in
ancient powers of attorney, and now supplanted
by the English word "constitute."
CONSTITUIMUS. A Latin term, signifying we
constitute or appoint.
CONSTITUTED AUTHORITIES. Officers properly appointed under the constitution for the government of the people.
CONSTANT. Fixed or invariable; uniform.
Webster. Continually recurring, regular, steady.
Pfisterer v. Key, 218 Ind. 521, 33 N.E.2d 330, 335.
CONSTANTLY. In a constant manner; uniformly; continuously. Pfisterer v. Key, 218 Ind. 521,
33 N.E.2d 330, 335.
An instruction that a train crew knew that a railroad
right of way had been "constantly," frequently, and regularly used by a considerable number of persons at a particular hour of the day was not subject to the criticism
that the word "constantly" imported an uninterrupted and
continuous presence of such persons on the track, so that
at no moment of time it would be vacant of pedestrians.
Grauer v. Alabama Great Southern R. Co., 209 Ala. 568, 96
So. 915, 919.
CONSTAT. It is clear or evident; it appears;
it is certain; there is no doubt. Non constat, it
does not appear.
A certificate which the clerk of the pipe and
auditors of the exchequer made, at the request of
any person who intended to plead or move in
that court, for the discharge of anything. The effect of it was the certifying what appears (constat) upon record, touching the matter in question. Wharton.
A certificate by an officer that certain matters
therein stated appear of record. Wilcox v. Ray,
2 N.C. 410.
An exemplification under the great seal of the
enrolment of letters patent. Co. Litt. 225.
CONSTAT D'HUISSIER. In French law. An affidavit made by a huissier, setting forth the appearance, form, quality, color, etc., of any article
upon which a suit depends. Arg. Fr. Mere. Law,
554.
CONSTITUTIO. In the Civil law. An imperial
ordinance, decree, or constitution, distinguished
from Lex, Senatus-Consultum, and other kinds of
law and having its effect from the sole will of
the emperor. Dig. 1, 4, 1, Cooper's notes. An
establishment or settlement. Used of controversies settled by the parties without a trial. Calvin.
A sum paid according to agreement. Du Cange.
In Old English Law
An ordinance or statute. A provision of a
statute.
CONSTITUTIO DOT'S. Establishment of dower.
CONSTITUTION. The organic and fundamental
law of a nation or state, which may be written or
unwritten, establishing the character and conception of its government, laying the basic principles
to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different
departments, and prescribing the extent and manner of the exercise of sovereign powers. A charter of government deriving its whole authority
from the governed. Fairhope Single Tax Corporation v. Melville, 193 Ala. 289, 69 So. 466, 470.
See, also, Browne v. City of New York, 213 App.
Div. 206, 211 N.Y.S. 306.
In a more general sense, any fundamental or important
law or edict; as the Novel Constitutions of Justinian; the
Constitutions of Clarendon.
384
CONSTITUTUM
CONSTITUTION. In American law. The written instrument agreed upon by the people of the
Union or of a particular state, as the absolute
rule of action and decision for all departments
and officers of the government in respect to all
the points covered by it, which must control until
it shall be changed by the authority which established it, and in opposition to which any act or ordinance of any such department or officer is null
and void. Cooley, Const. Lim. 3.
CONSTITUTIONAL. Consistent with the constitution; authorized by the constitution; not conflicting with any provision of the constitution or
fundamental law of the state. Dependent upon
a constitution, or secured or regulated by a constitution; as "constitutional monarchy," "constitutional rights."
CONSTITUTIONAL ALCALDE. A person of
official status under Mexican law corresponding in
many respects in dignity and authority to a justice of the peace under the American system of
government. Tietzel v. Southwestern Const. Co.,
48 N.M. 567, 154 P.2d 238, 242.
CONSTITUTIONAL CONVENTION. A duly constituted assembly of delegates or representatives
of the people of a state or nation for the purpose
of framing, revising, or amending its constitution.
Bass v. Albright, Tex.Civ.App., 59 S.W.2d 891, 894.
CONSTITUTIONAL COURT. A court named or
described and expressly protected by Constitution,
or recognized by name or definite description in
Constitution but given no express protection thereby. Gorham v. Robinson, 57 R.I. 1, 186 A. 832.
CONSTITUTIONAL LAW. (1) That branch of
the public law of a state which treats of the organization and frame of government, the organs
and powers of sovereignty, the distribution of political and governmental authorities and functions,
the fundamental principles which are to regulate
the relations of government and subject, and
which prescribes generally the plan and method
according to which the public affairs of the state
are to be administered. (2) That department of
the science of law which treats of constitutions,
their establishment, construction, and interpretation, and of the validity of legal enactments as
tested by the criterion of conformity to the fundamental law. (3) A constitutional law is one
which is consonant to, and agrees with, the constitution; one which is not in violation of any
provision of the constitution of the particular
state.
CONSTITUTIONAL LIBERTY OR FREEDOM.
Such freedom as is enjoyed by the citizens of a
country or state under the protection of its constitution; the aggregate of those personal, civil, and
political rights of the individual which are guaranteed by the constitution and secured against invasion by the government or any of its agencies.
People v. Hurlbut, 24 Mich. 106, 9 Am.Rep. 103.
CONSTITUTIONAL OFFICER. One whose tenure and term of office are fixed and defined by the
Black's Law Dictionary Revised 4th Ed.-25
constitution, as distinguished from the incumbents
of offices created by the legislature. Foster v.
Jones, 79 Va. 642, 52 Am.Rep. 637.
CONSTITUTIONAL PSYCHOPATHIC INFERIORITY. Individuals who show a lifelong and constitutional tendency not to conform to the customs
of the group, and who habitually misbehave, and
have no sense of responsibility to their fellowmen
or to society as a whole. These individuals fail
to learn by experience and are inadequate, incompatible, and inefficient. State ex rel. Pearson v.
Probate Court of Ramsey County, 205 Minn. 545,
287 N.W. 297, 300; Wilson v. Walters, Cal.App.,
112 P.2d 964.
CONSTITUTIONAL RIGHT. A right guaranteed
to the citizens by the Constitution and so guaranteed as to prevent legislative interference therewith. Delaney v. Plunkett, 146 Ga. 547, 91 S.E.
561, 567, L.R.A.1917D, 926, Ann.Cas.1917E, 685.
CONSTITUTIONES. Laws promulgated, i. e., enacted, by the Roman Emperor. They were of
various kinds, namely, the following: (1) Edicta;
(2) decreta; (3) rescripta, called also "epistolce."
Sometimes they were general, and intended to
form a precedent for other like cases; at other
times they were special, particular, or individual,
(personales,) and not intended to form a precedent. The emperor had this power of irresponsible enactment by virtue of a certain lex regia,
whereby he was made the fountain of justice and
of mercy. Brown.
CONSTITUTIONES TEMPORE POSTERIORES
POTIORES SUNT HIS QUJE IPSAS PRIECESSERUNT. Dig. 1, 4, 4. Later laws prevail over
those which preceded them.
CONSTITUTIONS OF CLARENDON. See Clarendon.
CONSTITUTIONS OF THE FOREST. See Charta de Foresta.
CONSTITUTOR. In the civil law. One who, by
a simple agreement, becomes responsible for the
payment of another's debt. Inst. 4, 6, 9.
CONSTITUTUM. In the civil law. An agreement to pay a subsisting debt which exists without any stipulation, whether of the promisor or
another party. It differs from a stipulation in
that it must be for an existing debt. Du Cange.
A day appointed for any purpose. A form of
appeal. Calvinus, Lex.
CONSTITUTUM ESSE EAM DOMUM
QUE NOSTRUM DEBERE EXISTIMARI, UBI
QUISQUE SEDES ET TABULAS HABERET,
SUARUMQUE RERUM CONSTITUTIONEM FECISSET. It is settled that that is to be considered
the home of each one of us where he may have
his habitation and account-books, and where he
may have made an establishment of his business.
Dig. 50, 16, 203.
385
CONSTRAINT
CONSTRAINT. This term is held to be exactly
equivalent with "restraint." Edmondson v. Harris, 2 Tenn.Ch. 427.
An abridgement of liberty or hindrance of the
will, identical in meaning with the word "compulsion." Edmondson v. Harris, 2 Tenn.Ch. 427.
In Scotch law. Duress.
CONSTRUCT. To build; erect; put together;
make ready for use. State v. Abele, 119 Ohio St.
210, 162 N.E. 807, 809. To adjust and join materials, or parts of, so as to form a permanent whole.
Kinney v. Ehrensperger, 16 Ala.App. 289, 77 So.
439, 440. To put together constituent parts of
something in their proper place and order. State
ex rel. St. Louis County v. State Highway Commission, 315 Mo. 707, 286 S.W. 1, 2.
"Construct" is distinguishable from "maintain," which
means to keep up, to keep from change, to preserve. State
v. Olympia Light & Power Co., 91 Wash. 519, 158 P. 85, 89.
Under a broad interpretation, however, "construct" may be
synonymous with maintain, repair, or improve. Independent Highway Dist. No. 2 of Ada County v. Ada County, 24
Idaho 416, 134 P. 542, 545.
CONSTRUCTIO LEGIS NON FACIT INJURIAM.
The construction of the law (a construction made
by the law) works no injury. Co. Litt. 183;
Broom, Max. 603. The law will make such a construction of an instrument as not to injure a party.
CONSTRUCTION. The process, or the art, of
determining the sense, real meaning, or proper
explanation of obscure or ambiguous terms or
provisions in a statute, written instrument, or oral
agreement, or the application of such subject to
the case in question, by reasoning in the light derived from extraneous connected circumstances
or laws or writings bearing upon the same or a
connected matter, or by seeking and applying the
probable aim and purpose of the provision. Koy
v. Schneider, 110 Tex. 369, 221 S.W. 880, 884.
As applied to statutes, constitutions, contracts, etc., the
term necessarily presupposes doubt, obscurity, or ambiguity. Cohn-Hall-Marx Co. v. Vanosdall, 25 Ohio App. 360, 157
N.E. 908, 909.
Drawing conclusions respecting subjects that
lie beyond the direct expression of the term. Lieber, Leg. & Pol. Herm. 20; Roberts v. Portland
Water Dist., 124 Me. 63, 126 A. 162, 163.
This term is properly distinguished from interpretation,
although the two are often used synonymously. In strictness, interpretation is limited to exploring the written text,
while construction goes beyond and may call in the aid of
extrinsic considerations, as above indicated.
The process of bringing together and correlating a number of independent entities, so as to
form a definite entity. The Dredge A, D.C.N.C.,
217 F. 617, 631.
The creation of something new, as distinguished
from the repair or improvement of something already existing. Cabell v. City of Portland, 153
Or. 528, 57 P.2d 1292, 1297. The act of fitting an
object for use or occupation in the usual way,
and for some distinct purpose. Paterson N. &
R. R. Co. v. City of Paterson, 81 N.J.Eq. 124, 86
A. 68, 69. See Construct.
Construction, court of. A court of equity or
of common law, as the case may be, is called the
court of construction with regard to wills, as opposed to the court of probate, whose duty is to decide whether an instrument be a will at all. Now,
the court of probate may decide that a given instrument is a will, and yet the court of construction may decide that it has no operation, by reason of perpetuities, illegality, uncertainty, etc.
Wharton.
Equitable construction. A construction of a
law, rule, or remedy which has regard more to
the equities of the particular transaction or state
of affairs involved than to the strict application
of the rule or remedy; that is, a liberal and extensive construction, as opposed to a literal and
restrictive. Smiley v. Sampson, 1 Neb. 91.
By "equity of a statute" is intended the rule of construction which admits within the operation of a statute a class
of cases which are neither named nor excluded, but which,
from their analogy to those that are named, are clearly
and justly within the spirit and general meaning of the
law; such cases are said to be "within the equity of the
statute."
The modern doctrine is that to construe a statute liberally or according to its equity is nothing more than to give
effect to it according to the intention of the lawmaker as
indicated by its terms and purposes. Read v. Dingess, C.
C.A.W.Va., 60 F. 21, 29, 8 C.C.A. 389.
Strict and liberal construction. Strict (or literal) construction is construction of a statute .or
other instrument according to its letter, which
recognizes nothing that is not expressed, takes
the language used in its exact and technical meaning, and admits no equitable considerations or
implications. Warner v. King, 267 Ill. 82, 107
N.E. 837, 839.
Liberal (or equitable) construction, on the other
hand, expands the meaning of the statute to meet
cases which are clearly within the spirit or reason of the law, or within the evil which it was designed to remedy, provided such an interpretation is not inconsistent with the language used;
it resolves all reasonable doubts in favor of the
applicability of the statute to the particular case.
Black, Interp.Laws, 282; Causey v. Guilford County, 192 N.C. 298, 135 S.E. 40, 46. It means, not
that the words should be forced out of their natural meaning, but simply that they should receive a fair and reasonable interpretation with respect to the objects and purposes of the instrument. Lawrence v. McCalmont, 2 How. 426, 11
L.Ed. 326.
CONSTRUCTIVE. That which is established by
the mind of the law in its act of construing facts,
conduct, circumstances, or instruments; that
which has not the character assigned to it in its
own essential nature, but acquires such character in consequence of the way in which it is regarded by a rule or policy of law; hence, inferred, implied, made out by legal interpretation;—
the word "legal" being sometimes used in lieu
of "constructive." Middleton v. Parke, 3 App.D.
C. 160.
As to constructive "Bailment," "Breaking,"
"Contempt," "Contracts," "Conversion," "Deliv-
386
CONSUETUDINIBUS
on the mind." Tones v. State, 48 Tex.Cr. 363, 88
S.W. 217, 122 Am.St.Rep. 759, 1 L.R.A.,N.S., 1024.
ery," "Escape," "Fraud," "Larceny," "Malice,"
"Notice," "Possession," "Seisin," "Service of Process," "Total Loss," "Treason," and "Trusts," see
those titles.
CONSTRUCTIVE LOSS. One resulting from
such injuries to the property, without its destruction, as render it valueless to the assured or prevent its restoration to the original condition except
at a cost exceeding its value.
CONSTRUCTIVE ASSENT. An assent or consent imputed to a party from a construction or
interpretation of his conduct; as distinguished
from one which he actually expresses.
CONSTRUCTIVE MORTGAGE. A deed absolute
on its face but intended as a mortgage is sometimes referred to as a "constructive mortgage,"
or, more commonly perhaps, as an "equitable
mortgage." See Mortgage.
CONSTRUCTIVE AUTHORITY. Authority inferred or assumed to have been given because of
the grant of some other antecedent authority.
Middleton v. Parke, 3 App.D.C. 160.
CONSTRUCTIVE BREAKING INTO A HOUSE.
A breaking made out by construction of law. As
where a burglar gains an entry into a house by
threats, fraud, or conspiracy. 2 Russ. Crimes, 9,
10; Hawkins v. Commonwealth, 284 Ky. 33, 143
S.W.2d 853, 854.
CONSTRUCTIVE TAKING. A phrase used in
the law to characterize an act not amounting to
an actual appropriation of chattels, but which
shows an intention to convert them to his use; as
if a person intrusted with the possession of goods
deals with them contrary to the orders of the
owner.
CONSTRUCTIVE CRIME. Where, by a strained
construction of a penal statute, it is made to include an act not otherwise punishable, it is said
to be a "constructive crime," that is, one built up
by the court with the aid of inference and implication. Ex parte McNulty, 77 Cal. 164, 19 P. 237, 11
Am.St.Rep. 257.
CONSTRUCTIVE VACANCY IN PUBLIC OFFICE. When the incumbent has no legal right or
claim to continue in office, but can be legally replaced by another functionary. State ex rel. Satterthwaite v. Stover, 5 W.W.Harr. 85, 159 A. 239,
241.
CONSTRUCTIVE EVICTION. As the term is
used with reference to breach of the covenants of
warranty and of quiet enjoyment, it means the inability of the purchaser to obtain possession by
reason of a paramount outstanding title. Fritz v.
Pusey, 31 Minn. 368, 18 N.W. 94.
CONSTRUCTIVE WILLFULNESS. Intentional
disregard of a known duty necessary to the safety
of a person, and an entire absence of care for the
life, the person, or the property of others, such
as exhibits a conscious indifference to consequences. Collins v. Missouri-Illinois R. Co., 233 Ill.
App. 545, 551; Hughes v. Medendorp, 294 Ill.App.
424, 13 N.E.2d 1015, 1018.
With reference to the relation of landlord and tenant,
there is a "constructive eviction" when the former, without intent to oust the latter, does some act which deprives
the tenant of the beneficial enjoyment of the demised premises or materially impairs such enjoyment. Santrizos v.
Public Drug Co., 143 Minn. 222, 173 N.W. 563, 564. Any
disturbance of the tenant's possession by the landlord
whereby the premises are rendered unfit or unsuitable for
occupancy in whole or in substantial part for the purposes
for which they were leased amounts to a constructive eviction, if the tenant so elects and surrenders his possession.
Murry v. Merchants' Southwest Transfer & Storage Co., 98
Okl. 270, 225 P. 547, 549. There must be injurious interference with tenant's possession, substantial deprivation of
tenant's beneficial use of premises, and material impairment of tenant's beneficial enjoyment of premises, so that
he is compelled to vacate. Ben Hur Holding Corporation
v. Fox, 263 N.Y.S. 695, 147 Misc. 300.
CONSTRUCTIVE FORCE. This has been said
to be an acquiescence to an act obtained through
duress or fear of personal violence. Shepherd v.
State, 135 Ala. 9, 12, 33 So. 266.
With regard to rape, the force necessary to constitute the offense need not be actual, but may be
constructive or implied. 52 C.J. p. 1018.
As regards robbery, a taking by force is the
gist of the crime, but the force may be either actual or constructive. 54 C.J. p. 1016. " 'Constructive force' is anything which produces fear sufficient to suspend the power of resistance and prevent the free exercise of the will." Montsdoca v.
State, 84 Fla. 82, 93 So. 157, 159, 27 A.L.R. 1291.
"Actual force is applied to the body, constructive
is by threatening words or gestures and operates
CONSTRUE. To put together; to arrange or
marshal the words of an instrument. To ascertain the meaning of language by a process of arrangement and inference. See Construction.
CONSTUPRATE. To ravish, debauch, violate,
rape. See Harper v. Delp, 3 Ind. 230; Koenig v.
Nott, 2 Hilt. (N.Y.) 329.
CONSUETUDINARIUS. In ecclesiastical law. A
ritual or book, containing the rites and forms of
divine offices or the customs of abbeys and monasteries.
CONSUETUDINARY LAW. Customary law.
Law derived by oral tradition from a remote antiquity. Bell.
CONSUETUDINES. In old English law. Customs. Thus, consuetudines et assisa forestce, the
customs and assise of the forest.
CONSUETUDINES FEUDORUM. (Lat. feudal
customs.) A compilation of the law of feuds or
fiefs in Lombardy, made A.D. 1170. It is of great
authority.
CONSUETUDINIBUS ET SERVICIIS. In old
English law. A writ of right close, which lay
against a tenant who deforced his lord of the rent
or service due to him. Reg. Orig. 159; Fitzh.
Nat. Brev. 151.
387
CONSUETUDO
CONSUETUDO. Lat. A custom; .an established
usage or practice. Co. Litt. 58, 58b; Tolls; duties; taxes.
CONSUETUDO ANGLICANA. The custom of
England; the ancient common law, as distinguished from lex, the Roman or civil law.
CONSUETUDO CONTRA RATIONEM INTRODUCTA POTIUS USURPATIO QUAM CONSUETUDO APPELLARI DEBET. A custom introduced against reason ought rather to be called a
"usurpation" than a "custom." Co.Litt. 113.
CONSUETUDO CURIAE. The custom or practice
of a court. Hardr. 141.
CONSUETUDO DEBET ESSE CERTA; NAM
INCERTA PRO NULLA HABETUR. Da y . 33. A
custom should be certain; for an uncertain custom is considered null.
CONSUETUDO EST ALTERA LEX. Custom is
another law. 4 Coke, 21.
CONSUETUDO EST OPTIMUS INTERPRES LEGUM. 2 Inst. 18. Custom is the best expounder
of the laws.
CONSUETUDO ET COMMUNIS ASSUETUDO
VINCIT LEGEM NON SCRIPTAM, SI SIT SPECIALIS; ET INTERPRETATUR LEGEM SCRIPTAM, SI LEX SIT GENERALIS. Jenk. Cent. 273.
Custom and common usage overcomes the unwritten law, if it be special; and interprets the
written law, if the law be general.
CONSUETUDO EX CERTA CAUSA RATIONABILI USITATA PRIVAT COMMUNEM LEGEM.
A custom, grounded on a certain and reasonable
cause, supersedes the common law. Litt. § 169;
Co. Litt. 113; Broom, Max. 919.
CONSUETUDO, LICET SIT MAGNIE AUCTORITATIS, NUNQUAM TAMEN, PRZEJUDICAT
MANIFESTIE VERITATI. A custom, though it
be of great authority, should never prejudice manifest truth. 4 Coke, 18.
CONSUETUDO LOCI OBSERVANDA EST. Litt.
§ 169. The custom of a place is to be observed.
CONSUETUDO MANERII ET LOCI OBSERVANDA EST. 6 Coke, 67. A custom of a manor and
place is to be observed.
CONSUETUDO MERCATORUM. Lat. The custom of merchants, the same with lex mercatoria.
CONSUETUDO NEQUE INJURIA ORIRI NEQUE TOLLI POTEST. Lofft, 340. Custom can
neither arise from nor be taken away by injury.
CONSUETUDO NON TRAHITUR IN CONSEQUENTIAM. 3 Keb. 499. Custom is not drawn
into consequence. 4 Jur. (N.S.) Ex. 139.
CONSUETUDO PRIESCRIPTA ET LEGITIMA
VINCIT LEGEM. A prescriptive and lawful custom overcomes the law. Co. Litt. 113; 4 Coke, 21.
CONSUETUDO REGNI ANGLLE EST LEX ANGLUE. Jenk. Cent. 119. The custom of the kingdom of England is the law of England. See 2
Bl. Comm. 422.
CONSUETUDO SEMEL REPROBATA NON P0TEST AMPLIUS INDUCI. A custom once disallowed cannot be again brought forward, [or relied on]. Da y . 33.
CONSUETUDO TOLLIT COMMUNEM LEGEM.
Co. Litt. 33b. Custom takes away the common
law.
CONSUETUDO VINCIT COMMUNEM LEGEM.
Custom overrules common law. 1 Rop. H. & W.
351; Co. Litt. 33b.
CONSUETUDO VOLENTES DUCIT, LEX NOLENTES TRAHIT. Custom leads the willing,
law compels [drags] the unwilling. Jenk. Cent.
274.
CONSUL.
International Law
An officer of a commercial character, appointed
by the different states to watch over the mercantile interests of the appointing state and of
its subjects in foreign countries. There are
usually a number of consuls in every maritime country, and they are usually subject to a
chief consul, who is called a "consul general."
Schunior v. Russell, 18 S.W. 484, 83 Tex. 83.
Old English Law
An ancient title of an earl.
Roman Law
During the' republic, the name "consul" was
given to the chief executive magistrate, two of
whom were chosen annually. The office was continued under the empire, but its powers and prerogatives were greatly reduced. The name is supposed to have been derived from consulo, to consult, because these officers consulted with the
senate on administrative measures.
The word "consul" has two meanings: (1) It denotes an
officer of a particular grade in the consular service; (2)
it has a broader generic sense, embracing all consular officers. Dainese v. U. S., 15 Ct.C1. 64.
See, also, Foreign Service Act of 1946, 22 U.S.C.A. § 801 et
seq.
CONSULAR COURTS. Courts held by the consuls of one country, within the territory of another, under authority given by treaty, for the
settlement of civil cases. In some instances they
have also a criminal jurisdiction, but in this respect are subject to review by the courts of the
home government. See Rev.St. U.S. § 4083 (22
U.S.C.A. § 141.)
CONSULTA ECCLESIA. In ecclesiastical law.
A church full or provided for. Cowell.
CONSULTARY RESPONSE. The opinion of a
court of law on a special case.
388
CONTEMPLATION
parte Liang suck Chew, D.C.Mass., 296 F. 183.
See Infection.
CONSULTATION. A writ whereby' a cause
which has been wrongfully removed by prohibition out of an ecclesiastical court to a temporal
court is returned to the ecclesiastical court.
Phillim. Ecc. Law, 1439. Deliberation of persons
on some subject. State v. District Court of Third
Judicial Dist. in and for Powell County, 85 Mont.
215, 278 P. 122, 125.
A conference between the counsel engaged in
a case, to discuss its questions or arrange the
method of conducting it.
In French law. The opinion of counsel upon
a point of law submittted to them.
CONTANGO. A double bargain, consisting of a
sale for cash of stock previously bought which
the broker does not wish to carry, and a repurchase for the re-settlement two weeks ahead of
the same stock at the same price as at the sale
plus interest accrued up to the date of that settlement. The rate of interest is called a "contango"
and contango days are the two days during the
settlement when these arrangements are in effect.
CONTEK. L. Fr. A contest, dispute, disturbance,
opposition, Ri'itt. c. 42; Kelham. Conteckours;
brawlers; disturbers of the peace. Britt. c. 29.
CONSULTO. Lat. In the civil law. Designedly; intentionally. Dig. 28, 41.
CONTEMNER. One who has committed contempt of court. Wyatt v. People, 17 Colo. 252, 28
P. 961.
CONSUMER. One who uses economic goods and
so diminishes or destroys their utilities; opposed
to producer. Ex parte Mehlman, 127 Tex.Cr.R.
257, 75 S.W.2d 689, 690.
CONSUMMATE, adj. Completed; as distinguished from initiate, or that which is merely begun.
The husband of a woman seised of an estate of
inheritance becomes, by the birth of a child, tenant by the curtesy initiate, and may do many
acts to charge the lands, but his estate is not
consummate till the death of the wife. 2 Bl.
Comm. 126, 128; Co. Litt. 30a.
CONSUMMATE. v. To finish by completing
what was intended; bring or carry to utmost
point or degree; carry or bring to completion;
finish; perfect; fulfill; achieve. American Mercantile Corporation v. Spielberg, C.C.A.N.Y., 262 F.
492, 496; Purcell v. Firth, 175 Cal. 746, 167 P. 379,
380; Oregon Home Builders v. Montgomery Inv.
Co., 94 Or. 349, 184 P. 487, 492; Dahlinger v. Commissioner of Internal Revenue, C.C.A., 51 F.2d
662, 663.
CONSU3DIATE LIEN. A term which may be used to describe the lien of a judgment when a motion for a new trial has been denied (the lien having theretofore been merely inchoate). Sterling
v. Parker-Washington Co., 185 Mo.App. 192, 170
S.W. 1156, 1159.
CONSUM3IATION. The completion of a thing;
the completion of a marriage between two affianced persons by cohabitation. Sharon v. Sharon,
79 Cal. 633, 22 P. 26.
CONSUMPTION. Act or process of consuming;
waste; decay; destruction; and using up of anything, as food, heat, or time. Moore v. Pleasant
Hasler Const. Co., 50 Ariz. 370, 72 P.2d 573, 578.
Destruction by use. Revzan v. Nudelman, 370
Iii. 180, 18 N.E.2d 219, 222.
CONTAGIOUS ABORTION. A disease of cows
generally contracted through the digestive tract
from infected food which causes premature birth
of calves. Gesme v. Potter, 118 Or. 621, 247 P.
765, 766.
CONTAGIOUS DISEASE. One capable of being
transmitted by mediate or immediate contact. Ex
CONTEMPLATE. To view or consider with continued attention; to regard thoughtfully; to have
in view as contingent or probable as an end or intention. Wright v. Fuel Oil Co., Mo., 342 Mo.
173, 114 S.W.2d 959, 962. To ponder, to study, to
plan, to meditate, to reflect. In re Thompson's Estate, 72 Utah, 17, 269 P. 103, 115.
CONTEMPLATION. The act of the mind in considering with attention. Continued attention of
the mind to a particular subject. Consideration
of an act or series of acts with the intention of
doing or adopting them. The consideration of an
event or state of facts with the expectation that
it will transpire.
CONTEMPLATION OF BANKRUPTCY. Contemplation of the breaking up of one's business
or an inability to continue it; knowledge of, and
action with reference to, a condition of bankruptcy
or ascertained insolvency, coupled with an intention to commit what the law declares to be an
"act of bankruptcy," or to make provision against
the consequences of insolvency, or to defeat the
general distribution of assets which would take
place under a proceeding in bankruptcy. Buckingham v. McLean, 13 How. 167, 14 L.Ed. 90; In
re Carmichael, D.C.Iowa, 96 F. 594.
CONTEMPLATION OF DEATH. The apprehension or expect ation of approaching dissolution;
not that general expectation which every mortal
entertains, but the apprehension which arises
from some presently existing sickness or physical
condition or from some impending danger. As
applied to transfers of property, the phrase "in
contemplation of death" means that thought of
death is the impelling cause of transfer and that
motive which induces transfer is of sort which
leads to testamentary disposition and is practically equivalent to "causa mortis." In re Cornell's
Estate, 73 N.Y.S. 32, 66 App.Div. 162; Nicholas
v. Martin, 128 N.J.Eq. 344, 15 A.2d 235, 243; Pate
v. C. I. R., C.C.A.8, 149 F.2d 669, 670.
CONTEMPLATION OF INSOLVENCY. Knowledge of, and action with reference to, an existing or contemplated state of insolvency, with a
389
CONTEIVIPORANEA
design to make provision against its results or to
defeat the operation of the insolvency laws.
Flockhart Foundry Co. v. Cox Automatic Pipe
Bending Co., 95 N.J.Eq. 382, 123 A. 151, 152.
CONTEMPORANEA EXPOSITIO. Lat. Contemporaneous exposition, or construction; a construction drawn from the time when, and the circumstances under which, the subject-matter to
be construed, as a statute or custom, originated.
CONTEMPORANEA EXPOSITIO EST OPTIMA
ET FORTISSIMA IN LEGE. Contemporaneous
exposition is the best and strongest in the law.
2 Inst. 11. A statute is best explained by following the construction put upon it by judges who
lived at the time it was made, or soon after. 10
Coke, 70; Broom, Max. 682.
CONTEMPT. A willful disregard or disobedience
of a public authority.
CONTEMPT OF COURT. Any act which is calculated to embarrass, hinder, or obstruct court in
administration of justice, or which is calculated
to lessen its authority or its dignity. Ex parte
Hobrook, 133 Me. 276, 177 A. 418, 420. Committed by a person who does any act in willful contravention of its authority or dignity, or tending
to impede or frustrate the administration of justice, or by one who, being under the court's authority as a party to a proceeding therein, willfully disobeys its lawful orders or fails to comply with an undertaking which he has given.
Snow v. Hawkes, 183 N.C. 365, 111 S.E. 621, 622,
23 A.L.R. 183.
Classification
Contempts are of two kinds, direct and constructive.
Direct contempts are those committed in the
immediate view and presence of the court (such
as insulting language or acts of violence) or so
near the presence of the court as to obstruct or
interrupt the due and orderly course of proceedings. These are punishable summarily. They
are also called "criminal" contempts, but that
term is better used in contrast with "civil" contempts. See infra. State v. McClaugherty, 33
W.Va. 250, 10 S.E. 407. Pelletier v. Glacier County,
Mont., 107 Mont. 221, 82 P.2d 595, 597.
Constructive (or indirect) contempts are those
which arise from matters not occurring in or near
the presence of the court, but which tend to obstruct or defeat the administration of justice,
and the term is chiefly used with reference to the
failure or refusal of a party to obey a lawful order, injunction, or decree of the court laying upon
him a duty of action or forbearance. Maryott v.
Maryott, 124 Neb. 274, 246 N.W. 343.
Constructive contempts were formerly called "consequential," and this term is still in occasional use.
Contempts are also classed as civil or criminal.
The former are those quasi contempts which
consists in the failure to do something which the
party is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court, while criminal contempts
are acts done in disrespect of the court or its
process or which obstruct the administration of
justice or tend to bring the court into disrespect.
A civil contempt is not an offense against the dignity of the court, but against the party in whose
behalf the mandate of the court was issued, and
a fine is imposed for his indemnity. But criminal
contempts are offenses or injuries offered to the
court, and a fine or imprisonment is imposed upon
the contemnor for the purpose of punishment.
Staley v. South Jersey Realty Co., 90 A. 1042, 1043,
83 N.J.Eq. 300, L.R.A.1917B, 113, Ann.Cas.1916E,
955; Fenton v. Walling, C.C.A.Cal., 139 F.2d 608,
609.
CONTEMPT OF CONGRESS, LEGISLATURE, or
PARLIAMENT. Whatever obstructs or tends to
obstruct the due course of proceeding of either
house, or grossly reflects on the character of a
member of either house, or imputes to him what
it would be a libel to impute to an ordinary person, is a contempt of the house, and thereby a
breach of privilege. Sweet.
CONTEMPTIBILITER. Lat. Contemptuously.
In old English law. Contempt, contempts.
Fleta, lib. 2, c. 60, § 35.
CONTENEMENTUM. See Wainagium; Contentment.
CONTENTIOUS. Contested; adversary; litigated between adverse or contending parties; a ju, dicial proceeding not merely ex parte in its character, but comprising attack and defense as be; tween opposing parties, is so called. The litigious
proceedings in ecclesiastical courts are sometimes
said to belong to its "contentious" jurisdiction, in
contradistinction to what is called its "voluntary"
jurisdiction, which is exercised in the granting of
licenses, probates of wills, dispensations, faculties, etc.
CONTENTIOUS JURISDICTION. In English ecclesiastical law. That branch of the jurisdiction
of the ecclesiastical courts which is exercised upon
adversary or contentious (opposed, litigated) proceedings.
CONTENTIOUS POSSESSION. In stating the
rule that the possession of land necessary to give
rise to a title by prescription must be a "contentious" one, it is meant that it must be based on
opposition to the title of the rival claimant (not
in recognition thereof or subordination thereto)
and that the opposition must be based on good
grounds, or such as might be made the subject
of litigation. Railroad Co. v. McFarlan, 43 N.J.
L. 621.
CONTENTMENT, CONTENEMENT. A man's
countenance or credit, which he has together with,
and by reason of, his freehold; or that which is
necessary for the support and maintenance of
men, agreeably to their several qualities or states
of life. Wharton; Cowell.
Comfort; consolation; ease; enjoyment; happiness; pleasure; satisfaction. National Surety
Co. v. Jarrett, 95 W.Va. 420, 121 S.E. 291, 295.
390
CONTINGENCY
CONTENTS. The contents of a promissory note
or other commercial instrument or chose in action means the specific sum named therein and
payable by the terms of the instrument. Trading
Co. v. Morrison, 20 S.Ct. 869, 178 U.S. 262, 44 L.
Ed. 1061.
CONTENTS AND NOT CONTENTS. In parliamentary law. The "contents" are those who, in
the house of lords, express assent to a bill; the
"not" or "non contents" dissent. May, Parl. Law,
cc. 12, 357.
CONTENTS UNKNOWN. Words sometimes annexed to a bill of lading of goods in cases. Their
meaning is that the master only means to acknowledge the shipment, in good order, of the cases, as to their external condition. Miller v. Railroad Co., 90 N.Y. 433, 43 Am.Rep. 179.
CONTERMINOUS. Adjacent; adjoining; having
a common boundary; coterminous.
CONTEST, v. To make defense to an adverse
claim in a court of law; to oppose, resist, or dispute the case made by a plaintiff. Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136; Parks v. State,
100 Ala. 634, 13 So. 756. To strive, to win or hold;
to controvert, litigate, call in question, challenge;
to defend, as a suit or other proceeding. Equitable Life Assur. Soc. of the United States v. First
Nat. Bank of Birmingham, C.C.A.Ala., 113 F.2d
272, 274.
CONTESTATIO LITIS. In Roman law. Contestation of suit; the framing an issue; joinder
in issue. The formal act of both the parties with
which the proceedings in jure were closed when
they led to a judicial investigation, and by which
the neighbors whom the parties brought with
them were called to testify. Mackeld, Rom.Law,
§ 219.
In old English law. Coming to an issue; the
issue so produced. Crabb, Eng.Law, 216.
CONTESTATIO LITIS EGET TERMINOS CONTRADICTARIOS. An issue requires terms of
contradiction. Jenks Cent. 117. To constitute an
issue, there must be an affirmative on one side
and a negative on the other.
CONTESTATION OF SUIT. In an ecclesiastical
cause, that stage of the suit which is reached
when the defendant has answered the libel by
giving in an allegation.
CONTESTED ELECTION. This phrase has no
technical or legally defined meaning. An election
may be said to be contested whenever an objection
is formally urged against it which, if found to be
true in fact, would invalidate it. This is true both
as to objections founded upon some constitutional
provision and to such as are based on statutes.
Robertson v. State, 109 Ind. 116, 10 N.E. 600.
CONTEXT. The context of a particular sentence
or clause in a statute, contract, will, etc., comprises those parts of the text which immediately
precede and follow it. The context may some-
times be scrutinized, to aid in the interpretation of
an obscure passage.
CONTIGUOUS. In close proximity; near, though
not in contact; neighboring; adjoining; near in
succession; in actual close contact; touching;
bounded or traversed by. The term is not synonymous with "vicinal." Ehle v. Tenney Trading Co.,
56 Ariz. 241, 107 P.2d 210, 212.
CONTIGUOUS AND COMPACT. In respect of
school district, territory so closely united and so
nearly adjacent to the school building that all
the children residing in the district, their ages considered, may conveniently travel from their homes
to the school building and return in a reasonable
time and with a reasonable degree of comfort.
People v. Simpson, 308 Ill. 418, 139 N.E. 890, 893;
People v. Dodds, 310 Ill. 607, 142 N.E. 241, 242.
CONTINENCIA. In Spanish law. Continency or
unity of the proceedings in a cause. White, New
Recop. b. 3, tit. 6, c. 1.
CONTINENS. In the Roman law. Continuing;
holding together. Adjoining buildings were said
to be continentia.
CONTINENTAL. Pertaining or relating to a continent; characteristic of a continent; as broad in
scope or purpose as a continent. Continental Ins.
Co. v. Continental Fire Ass'n, C.C.Tex., 96 F. 848.
CONTINENTAL CONGRESS. The first national
legislative assembly in the United States, which
met in 1774, in pursuance of a recommendation
made by Massachusetts and adopted by the other
colonies. In this congress all the colonies were
represented except Georgia. The delegates were
in some cases chosen by the legislative assemblies
in the states; in others by the people directly.
The powers of the congress were undefined, but
it proceeded to take measures and pass resolutions which concerned the general welfare and
had regard to the inauguration and prosecution of
the war for independence. Black, Const.Law (3d
Ed.) 40; 1 Story, Const. §§ 198-217.
CONTINENTAL CURRENCY. Paper money issued under the authority of the continental congress. Wharton v. Morris, 1 Da11. 125, 1 L.Ed. 65.
CONTINENTIA. In old English practice. Continuance or connection. Applied to the proceedings
in a cause. Bract. fol. 362b.
CONTINGENCY. Quality of being contingent or
casual; the possibility of coming to pass; an
event which may occur; a possibility; a casualty.
Vandegrift v. Riley, 30 P.2d 516, 523, 220 Cal.
340. A fortuitous event, which comes without design, foresight, or expectation. People v. Yonkers,
39 Barb. (N.Y.) 272; American Ins. Co. v. Black, 46
Ga.App. 471, 168 S.E. 85.
CONTINGENCY OF A PROCESS. In Scotch law.
Where two or more processes are so connected
that the circumstances of the one are likely to
throw light on the others, the process first enrolled is considered as the leading process, and
391
CONTINGENCY
those subsequently brought into court, if not
brought in the same division, may be remitted to
it, ob contingentiam, on account of their nearness
or proximity in character to it. The effect of remitting processes in this manner is merely to
bring them before the same division of the court
or same lord ordinary. In other respects they
remain distinct. Bell.
CONTINGENCY WITH DOUBLE ASPECT. A remainder is said to be "in a contingency with double aspect," when there is another remainder limited on the same estate, not in derogation of the
first, but as a substitute for it in case it should fail.
Fearne, Rem. 373.
COlsITINGENT. Possible, but not assured; doubtful or uncertain, conditioned upon the occurrence
of some future event which is itself uncertain, or
questionable. Verdier v. Roach, 96 Cal. 467, 31 P.
554, synonymous with provisional. Robinson v.
Edler, C.C.A.Nev., 78 F.2d 817, 819.
This term, when applied to a use, remainder, devise, bequest, or other legal right or interest, implies that no
present interest exists, and that whether such interest or
right ever will exist depends upon a future uncertain event.
Jemison v. Blowers, 5 Barb. (N.Y.) 692.
As to contingent "Damages," "Fee," "Legacy,"
"Limitation," "Remainder," "Trust," and "Use,"
see those titles.
CONTINGENT CLAIM. One which has not accrued and which is dependent on some future
event that may never happen. Hospes v. Car Co.,
48 Minn. 174, 50 N.W. 1117, 15 L.R.A. 470, 31 Am.
St.Rep. 637; Hicks v. Wilbur, 38 R.I. 268, 94 A. 872,
874; Cotting v. Hooper, Lewis & Co., 220 Mass.
273, 107 N.E. 931; In re Lexington Surety & Indemnity Co., 272 N.Y. 210, 5 N.E.2d 204, 205.
CONTINGENT ESTATE, INTEREST or RIGHT.
An estate, interest or right which depends for its
effect upon an event which may or may not happen; as an estate limited to a person not in else,
or not yet born. 2 Crabb, Real Prop. p. 4, § 946;
Avery v. Curtiss, 108 Okl. 154, 235 P. 195, 197;
Kahn v. Rockhill, 132 N.J.Eq. 188, 28 A.2d 34, 36.
CONTINGENT FUND. One set up by a municipality to pay expense items which will necessarily
arise during the year but cannot appropriately be
classified under any of the specific purposes for
which other taxes are levied. First Nat. Bank of
Norman v. City of Norman, 182 Okl. 7, 75 P.2d
1109, 1110.
CONTINGENT INTEREST IN PERSONAL
PROPERTY. A future interest not transmissible
to the representatives of the party entitled thereto, in case he dies before it vests in possession.
Mozley & Whitley.
Thus, if a testator leaves the income of a fund to his
wife for life, and the capital of the fund to be distributed
among such of his children as shall be living at her death,
the interest of each child during the widow's life-time is
contingent, and in case of his death is not transmissible to
his representatives. Mozley & Whitley.
CONTINGENT LIABILITY. One which is not
now fixed and absolute, but which will become
so in case of the occurrence of some future and
uncertain event. Warren Co. v. C. I. R., C.C.A.
Ga., 135 F.2d 679, 684, 685.
CONTINUAL CLAIM. In old English law. A formal claim made by a party entitled to enter upon
any lands or tenements, but deterred from such
entry by menaces, or bodily fear, for the purpose
of preserving or keeping alive his right. It was
called "continual," because it was required to be
repeated once in the space of every year and day.
It had to be made as near to the land as the party
could approach with safety, and, when made in
due form, had the same effect with, and in all respects amounted to, a legal entry. Litt. §§ 419423; Co.Litt. 250a; 3 Bl.Comm. 175.
CONTINUANCE. The adjournment or postponement of an action pending in a court, to a subsequent day of the same or another term. Com. v.
Maloney, 145 Mass. 205, 13 N.E. 482. Ferber v.
Brueckl, 332 Mo. 892, 17 S.W.2d 524, 527.
Also the entry of a continuance made upon the
record of the court, for the purpose of formally
evidencing the postponement, or of connecting
the parts of the record so as to make one continuous whole.
CONTINUANDO. In pleading. A form of allegation in which the trespass, criminal offense, or
other wrongful act complained of is charged to
have been committed on a specified day and to
have "continued" to the present time, or is averred
to have been committed at divers days and times
within a given period or on a specified day and on
divers other days and times between that day and
another. This is called "laying the time with a
continuando." State v. Brown, 10 Okl.Cr. 52, 133
P. 1143, 1144.
CONTINUING. Enduring; not terminated by a
single act or fact; subsisting for a definite period
or intended to cover or apply to successive similar
obligations or occurrences.
As to continuing "Breach," "Consideration,"
"Conspiracy," "Covenant," "Damages," "Guaranty," "Nuisance," and "Offense," see those titles.
CONTINUOUS. Uninterrupted; unbroken; not
intermittent or occasional; so persistently repeated at short intervals as to constitute virtually an
unbroken series. Ingraham v. Hough, 46 N.C. 43.
Connected, extended, or prolonged without cessation or interruption of sequence. Sullivan v.
John Hancock Mut. Life Ins. Co. of Boston, Mo.
App., 110 S.W.2d 870, 877.
As to continuous "Crime" and "Easements," see
those titles.
CONTINUOUS ADVERSE USE. Is interchangeable with the term "uninterrupted adverse use."
Davidson v. Nicholson, 59 Ind. 411.
CONTINUOUS INJURY. One recurring at repeated intervals, so as to be of repeated occurrence; not necessarily an injury that never ceases.
Wood v. Sutcliffe, 8 Eng.Law & Eq. 217.
392
CONTRACAUSATOR
CONTRA NEGANTEM PRINCIPIA NON EST
DISPUTANDUM. There is no disputing against
one who denies first principles. Co.Litt. 343.
CONTINUOUSLY. Uninterruptedly; in unbroken
sequence; without intermission or cessation;
without intervening time; with continuity or continuation. U. S. v. Wooten, C.C.A.N.M., 40 F.2d
882, 887.
CONTIONES. General meetings of the Roman
people. Launspach, State and Family in Early
Rome 69.
CONTRA. Against, confronting, opposite to; on
the other hand; on the contrary.
The word is used in many Latin phrases, as appears by
the following titles. In the books of reports, contra, appended to the name of a judge or counsel, indicates that
he held a view of the matter in argument contrary to that
next before advanced. Also, after citation of cases in support of a position, contra is often prefixed to citations of
cases opposed to it.
CONTRA BONOS MORES. Against good morals.
Contracts contra bonos mores are void.
CONTRA FORMAM COLLATIONIS. In old English law. A writ that issued where lands given in
perpetual alms to lay houses of religion, or to an
abbot and convent, or to the warden or master of
a hospital and his convent, to find certain poor
men with necessaries, and do divine service, etc.,
were alienated, to the disherison of the house and
church. By means of this writ the donor or his
heirs could recover the lands. Reg.Orig. 238; Fitz.
Nat.Brev. 210.
CONTRA FORMAM DONI. Against the form of
the grant. See Formedon.
CONTRA FORMAM FEOFFAMENTI. In old
English law. A writ that lay for the heir of a tenant, enfeoffed of certain lands or tenements, by
charter of feoffment from a lord to make certain
services and suits to his court, who was afterwards distrained for more services than were
mentioned in the charter. Reg.Orig. 176; Old
Nat.Brev. 162.
CONTRA FORMAM STATUTI. In criminal pleading. (Contrary to the form of the statute in such
case made and provided.) The usual conclusion
of every indictment, etc., brought for an offense
created by statute.
CONTRA JUS BELLI. Lat. Against the law of
war. 1 Kent.Comm. 6.
CONTRA JUS COMMUNE. Against common
right or law; contrary to the rule of the common
law. Bract. fol. 48b.
CONTRA NON VALENTEM AGERE NULLA
CURRIT PRIESCRIPTIO. No prescription runs
against a person unable to bring an action.
Broom, Max. 903.
CONTRA OMNES GENTES. Against all people.
Formal words in old covenants of warranty. Fleta, lib. 3, c. 14, § 11.
CONTRA PACEM. Against the peace. A phrase
used in the Latin forms of indictments, and also
of actions for trespass, to signify that the offense
alleged was committed against the public peace,
1. e., involved a breach of the peace. The full formula was contra pacem domini regis, against the
peace of the lord the king. In modern pleading, in
this country, the phrase "against the peace of the
commonwealth" or "of the people" is used.
CONTRA PROFERENTEM. Against the party
who proffers or puts forward a thing. J. Zimmern's Co. v. Granade, 212 Ala. 172, 102 So. 210,
211.
CONTRA TABULAS. In the civil law. Against
the will, (testament.) Dig. 37, 4.
CONTRA VADIUM ET PLEGIUM. In old English law. Against gage and pledge. Bract. fol.
15b.
CONTRA VERITATEM LEX NUNQUAM ALIQUID PERMITTIT. The law never suffers anything contrary to truth. 2 Inst. 252.
CONTRABAND. Against law or treaty; prohibited. Goods exported from or imported into a
country against its laws. Brande. Articles, the
i mportation or exportation of which is prohibited
by law. State v. Butler, 148 S.C. 495, 146 S.E. 418,
419.
CONTRABAND OF WAR. Certain classes of
merchandise, such as arms and ammunition,
which, by the rules of international law, cannot
lawfully be furnished or carried by a neutral nation to either of two belligerents; if found in
transit in neutral vessels, such goods may be
seized and condemned for violation of neutrality.
The Peterhoff, 5 Wall. 58, 18 L.Ed. 564; Richardson v. Insurance Co., 6 Mass. 114, 4 Am.Dec. 92.
A recent American author on international law says that,
"by the term 'contraband of war,' we now understand a
class of articles of commerce which neutrals are prohibited
from furnishing to either one of the belligerents, for the
reason that, by so doing, injury is done to the other belligerent;" and he treats of the subject, chiefly, in its relation
to commerce upon the high seas. Hall, Int.Law, 570, 592;
Elrod v. Alexander, 4 Heisk. (Tenn.) 345.
CONTRA LEGEM FACIT QUI ID FACIT QUOD
LEX PROHIBIT; IN FRAUDEM VERO QUI,
SALVIS VERBIS LEGIS, SENTENTIAM EJUS
CIRCUMVENIT. He does contrary to the law who
does what the law prohibits; he acts in fraud of
the law who, the letter of the law being inviolate,
uses the law contrary to its intention. Dig. 1, 3,
29.
CONTRABAND OIL. Oil produced contrary to
state laws. Panama Refining Co. v. Railroad Commission of Texas, D.C.Tex., 16 F.Supp. 289, 291.
CONTRA LEGEM TERRIE. Against the law of
the land.
CONTRACAUSATOR. A criminal; one prosecuted for a crime.
393
CONTRACT
CONTRACT. A promissory agreement between
two or more persons that creates, modifies, or destroys a legal relation. Buffalo Pressed Steel Co.
v. Kirwan, 138 Md. 60, 113 A. 628, 630; Mexican
Petroleum Corporation of Louisiana v. North German Lloyd, D.C.La., 17 F.2d 113, 114.
An agreement, upon sufficient consideration, to
do or not to do a particular thing. 2 Bl.Comm.
442; 2 Kent, Comm. 449. Justice v. Lang, 42 N.Y.
496, 1 Am.Rep. 576; Rabon v. State Finance Corporation, 203 S.C. 183, 26 S.E.2d 501, 502.
An agreement between two or more parties, preliminary
Step in making of which is offer by one and acceptance by
other, in which minds of parties meet and concur in understanding of terms. Lee v. Travelers' Ins. Co. of Hartford,
Conn., 173 S.C. 185, 175 S.E. 429.
A deliberate engagement between competent parties, upon a legal consideration, to do, or abstain from doing,
some act. Wharton; Smith v. Thornhill, Tex.Com.App. 25
S.W.2d 597, 599.
It is agreement creating obligation, in which there must
be competent parties, subject-matter, legal consideration,
mutuality of agreement, and mutuality of obligation, and
agreement must not be so vague or uncertain that terms
are not ascertainable. H. Liebes & Co. v. Klengenberg, C.
C.A.Cal., 23 F.2d 611, 612.
A contract or agreement is either where a promise is
made on one side and assented to on the other; or where
two or more persons enter into engagement with each
other by a promise on either side. 2 Steph.Comm. 54.
The writing which contains the agreement of
parties, with the terms and conditions, and which
serves as a proof of the obligation.
Certain and Hazardous
Certain contracts are those in which the thing to
be done is supposed to depend on the will of the
party, or when, in the usual course of events, it
must happen in the manner stipulated. Hazardous
contracts are those in which the performance of
that which is one of its objects depends on an uncertain event. Civ.Code La. 1776.
Classification
Contracts may be classified on several different
methods, according to the element in them which
is brought into prominence. The usual classifications are as follows:
Commutative and Independent
Commutative contracts are those in which what
is done, given, or promised by one party is considered as an equivalent to or in consideration of
what is done, given, or promised by the other.
Civ.Code La. 1768; Ridings v. Johnson, 9 Sup.Ct.
72, 128 U.S. 212, 32 L.Ed. 401. Independent contracts are those in which the mutual acts or promises have no relation to each other, either as
equivalents or as considerations. Civ.Code La.
1769.
Conditional Contract
An executory contract the performance of which
depends upon a condition. It is not simply an
executory contract, since the latter may be an absolute agreement to do or not to do something,
but it is a contract whose very existence and performance depend upon a contingency. Railroad
Co. v. Jones, 2 Cold. (Tenn.) 584; French v. Osmer, 67 Vt. 427, 32 A. 254.
Consensual and Real
Consensual contracts are such as are founded
upon and completed by the mere agreement of the
contracting parties, without atry external formality or symbolic act to fix the obligation. Real contracts are those in which it is necessary that there
should be something more than mere consent,
such as a loan of money, deposit or pledge, which,
from their nature, require a delivery of the thing,
(res.) Inst. 3, 14, 2; Id. 3, 15; Halifax, Civil Law,
b. 2, c. 15, No. 1. In the common law a contract
respecting real property (such as a lease of land
for years) is, called a "real" contract. 3 Coke,
22a.
Constructive Contract
Constructive contracts are such as arise when
the law prescribes the rights and liabilities of persons who have not in reality entered into a contract at all, but between whom circumstances
make it just that one should have a right, and the
other be subject to a liability, similar to the rights
and liabilities in cases of express contract. Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874,
884.
Divisible and Indivisible
The effect of the breach of a contract depends
in a large degree upon whether it is to be regarded
as indivisible or divisible; i. e. whether it forms a
whole, the performance of every part of which is
a condition precedent to bind the other party, or
is composed of several independent parts, the
performance of any one of which will bind the
other party pro tanto. The only test is whether
the whole quantity of the things concerned, or
the sum of the acts to be done, is of the essence of
the contract. It depends, therefore, in the last
resort, simply upon the intention of the parties.
Integrity Flooring v. Zandon Corporation, 130
N.J.L. 244, 32 A.2d 507, 509.
When a consideration is entire and indivisible,
and it is against law, the contract is void in toto.
Frazier v. Thompson, 2 Watts & S. (Pa.) 235.
When the consideration is divisible, and part of it
is illegal, the contract is void only pro tanto.
Harr.Contr. 132; Gelpcke v. Dubuque, 1 Wall. 220,
17 L.Ed. 530.
Entire and Severable
An entire contract is one the consideration of
which is entire on both sides. The entire fulfillment of the promise by either is a condition precedent to the fulfillment of any part of the promise
by the other. Whenever, therefore, there is a
contract to pay the gross sum for a certain and
definite consideration, the contract is entire. A
severable contract is one the consideration of
which is, by its terms, susceptible of apportionment on either side, so as to correspond to the unascertained consideration on the other side, as a
contract to pay a person the worth of his services
so long as he will do certain work; or to give a
certain price for every bushel of so much corn as
394
CONTRACT
corresponds to a sample. Orenstein v. Kahn, 13
Del.Ch. 376, 119 A. 444, 446; Integrity Flooring v.
Zandon Corporation, 130 N.J.L. 244, 32 A.2d 507,
509; Ruby v. United Sugar Cos., 56 Ariz. 535, 109
P.2d 845, 848.
Where a contract consists of many parts; which may be
considered as parts of one whole, the contract is entire.
When the parts may be considered as so many distinct contracts, entered into at one time, and expressed in the same
instrument, but not thereby made one contract, the contract is a separable contract. But, if the consideration of
the contract is single and entire, the contract must be held
to be entire, although the subject of the contract may consist of several distinct and wholly independent items. 2
Pars.Cont. 517.
Executed and Executory
Contracts are also distinguished into executed
and executory; executed, where nothing remains
to be done by either party, and where the transaction is completed at the moment that the arrangement is made, as where an article is sold and delivered, and payment therefor is made on the spot;
executory, where some future act is to be done,
as where an agreement is made to build a house
in six months, or to do an act on or before some
future day, or to lend money upon a certain interest, payable at a future time. Farrington v. Tennessee, 95 U.S. 683, 24 L.Ed. 558; Fox v. Kitton,
19 Ill. 532; Mather v. Mather, 25 Ca1.2d 582, 154
P.2d 684, 686.
But executed contracts are not properly contracts at all,
except reminiscently. The term denotes rights in property
which have been acquired by means of contract; but the
parties are no longer bound by a contractual tie. Mettel
v. Gales, 12 S.D. 632, 82 N.W. 181.
Express and Implied
An express contract is an actual agreement of
the parties, the terms of which are openly uttered
or declared at the time of making it, being stated
in distinct and explicit language, either orally or
in writing. 2 Bl.Comm. 443; 2 Kent, Comm. 450;
Linn v. Ross, 10 Ohio 414, 36 Am.Dec. 95; A. J.
Yawger & Co. v. Joseph, 184 Ind. 228; 108 N.E.
774, 775; In re Pierce, Butler & Pierce Mfg. Co.,
D.C.N.Y., 231 F. 312, 318.
An implied contract is one not created or evidenced by the explicit agreement of the parties,
but inferred by the law, as a matter of reason and
justice from their acts or conduct, the circumstances surrounding the transaction making it a
reasonable, or even a necessary, assumption that a
contract existed between them by tacit understanding. Miller's Appeal, 100 Pa. 568, 45 Am.Rep. 394;
Landon v. Kansas City Gas Co., C.C.A.Kan., 10
F.2d 263, 266; Caldwell v. Missouri State Life Ins.
Co., 230 S.W. 566, 568, 148 Ark. 474; Cameron, to
Use of Cameron, v. Eynon, 332 Pa. 529, 3 A.2d 423,
424; American La France Fire Engine Co., to Use
of American La France & Foamite Industries, v.
Borough of Shenandoah, C.C.A.Pa., 115 F.2d 806,
867.
Implied contracts are sometimes subdivided into those
"implied in fact" and those "implied in law," the former
being covered by the definition just given, while the latter
are obligations imposed upon a person by the law, not in
pursuance of his intention and agreement, either expressed
or implied, but even against his will and design, because
the circumstances between the parties are such as to ren-.
der it just that the one should have a right, and the other
a corresponding liability, similar to those which would
arise from a contract between them. This kind of obligation therefore rests on the principle that whatsoever it is
certain a man ought to do that the law will suppose him to
have promised to do. And hence it is said that, while the
liability of a party to an express contract arises directly
from the contract, it is just the reverse in the case of a
contract "implied in law," the contract there being implied or arising from the liability. Bliss v. Hoyt, 70 Vt.
534, 41 A. 1026; Kellum v. Browning's Adm'r, 231 Ky. 308,
21 S.W.2d 459, 465. But obligations of this kind are not
properly contracts at all, and should not be so denominated. There can be no true contract without a mutual and
concurrent intention of the parties. Such obligations are
more properly described as "quasi contracts." Union Life
Ins. Co. v. Glasscock, 270 Ky. 750, 110 S.W.2d 681, 686, 114
A. L.R. 373.
Fair and Reasonable Contract
See Fair and Reasonable Contract.
Gratuitous and Onerous
Gratuitous contracts are those of which the object is the benefit of the person with whom it is
made, without any profit or advantage received or
promised as a consideration for it. It is not, however, the less gratuitous if it proceed either from
gratitude for a benefit before received or from the
hope of receiving one thereafter, although such
benefit be of a pecuniary nature. Onerous contracts are those in which something is given or
promised as a consideration for the engagement
or gift, or some service, interest, or condition is imposed on what is given or promised, although unequal to it in value. Civ.Code La.1773, 1774; Penitentiary Co. v. Nelms, 65 Ga. 505, 38 Am.Rep. 793.
A gratuitous contract is sometimes called a contract of beneficence. Howe, Studies in the Civil
Law 107.
Joint and Several
A joint contract is one made by two or more
promisors, who are jointly bound to fulfill its
obligations, or made to two or more promisees,
who are jointly entitled to require performance of
the same. A contract may be "several" as to any
one of several promisors or promisees, if he has a
legal right (either from the terms of the agreement or the nature of the undertaking) to enforce
his individual interest separately from the other
parties. Jens-Marie Oil Co. v. Rixse, 72 Okl. 93,
178 P. 658. Generally all contracts are joint
where the interest of the parties for whose benefit
they are created is joint, and separate where that
interest is separate. Shurtleff v. Udall, 97 Vt. 156,
122 A. 465, 468.
Mutual Interest, Mixed, etc.
Contracts of "mutual interest" are such as are
entered into for the reciprocal interest and utility
of each of the parties; as sales, exchange, partnership, and the like. "Mixed" contracts are
those by which one of the parties confers a benefit
on the other, receiving something of inferior value
in return, such as a donation subject to a charge.
Contracts "of beneficence" are those by which only
one of the contracting parties is benefited; as
loans, deposit and mandate. Poth.Obl. 1, 1, 1, 2.
395
CONTRACT
Parol
A contract not entirely in writing. Louisville,
N. A. and C. Ry. Co. v. Reynolds, 118 Ind. 170,
173, 20 N.E. 711.
A written contract, which leaves some essential term
thereof to be shown by parol, is only "parol contract" not
enforceable under statute of fraud. Sheldmyer v. Bias, 112
Ind.App. 522, 45 N.E.2d 347, 349.
Personal Contract
A contract relating to personal property, or
one which so far involves the element of personal
knowledge or skill or personal confidence that it
can be performed only by the person with whom
made, and therefore is not binding on his executor. See Janin v. Browne, 59 Cal. 44; Lucas v.
J. H. Gross Motor Car Co., 27 Ohio App. 183, 161
N.E. 362, 363.
Pre-contract
An obligation growing out of a contract or contractual relation, of such a nature that it debars
the party from legally entering into a similar contract at a later time with any other person; particularly applied to marriage.
Principal and Accessory
A principal contract is one entered into by both
parties on their own account or in the several
qualities they assume. It is one which stands by
itself, justifies its own existence, and is not subordinate or auxiliary to any other. Accessory
contracts are those made for assuring the performance of a prior contract, either by the same
parties or by others, such as suretyship, mortgage,
and pledge. Civ.Code La. art. 1771.
tion or consent of the parties, but Is founded on
considerations of justice and equity, and on doctrine of unjust enrichment. Bruggeman v. Independent School Dist., No. 4, Union Tp., Mitchell
County, 227 Iowa 661, 289 N.W. 5, 8, 11.
It is not in fact a contract, but an obligation which the
law creates in absence of any agreement, when and because
the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such
circumstances that in equity and good conscience he ought
not to retain it. Grossbier v. Chicago, St. P., M. & 0.
Ry. Co., 173 Wis. 503, 181 N.W. 746, 748; It is an implication of law. First Nat. Bank v. Matlock, 99 Okl. 150, 226
P. 328, 331, 36 A.L.R. 1088; Caldwell v. Missouri State
Life Ins. Co., 148 Ark. 474, 230 S.W. 566, 568.
It is what was formerly known as the contract implied
in law; it has no reference to the intentions or expressions of the parties. The obligation is imposed despite,
and frequently in frustration of their intention. Town of
Balkan v. Village of Buhl, 158 Minn. 271, 197 N.W. 266, 35
A. L. R. 470.
Record, Specialty, Simple
Contracts of record are such as are declared
and adjudicated by courts of competent jurisdiction, or entered on their records, including judgments, recognizances, and statutes staple. Hardeman v. Downer, 39 Ga. 425. These are not properly speaking contracts at all, though they may
be enforced by action like contracts. Specialties,
or special contracts, are contracts under seal, such
as deeds and bonds. Ludwig v. Bungart, 26 Misc.
Rep. 247, 56 N.Y.S. 51. All others are included in
the description "simple" contracts; that is, a
simple contract is one that is not a contract of
record and not under seal; it may be either written or oral, in either case, it is called a "parol"
contract, the distinguishing feature being the lack
of a seal. Stackpole v. Arnold, 11 Mass. 30, 6 Am.
Dec. 150; 4 B. & Ald. 588; 2 Bla.Comm. 472.
Quasi Contracts
In the civil law. A contractual relation arising out of transactions between the parties which
give them mutual rights and obligations, but do
not involve a specific and express convention or
agreement between them. Keener, Quasi Contr.
1; Elbert County v. Brown, 16 Ga.App. 834, 86
S.E. 651, 665. The lawful and purely voluntary
acts of a man, from which there results any obligation whatever to a third person, and sometimes a reciprocal obligation between the parties.
Civ. Code La. art. 2293.
Persons who have not contracted with each other are
often regarded by the Roman law, under a certain state
of facts, as if they had actually concluded a convention between themselves. The legal relation which then takes
place between these persons, which has always a similarity
to a contract obligation, is therefore termed "obligatio
quasi ex contractu." Such a relation arises from the conducting of affairs without authority, (negotiorum gestio,)
from the payment of what was not due, (solutio indebiti,)
from tutorship and curatorship, and from taking possession
of an inheritance. Mackeld.Rom.Law § 491.
Legal fiction invented by common law courts
to permit recovery by contractual remedy of
assumpsit in cases where, in fact, there is no contract, but where circumstances are such that justice warrants a recovery as though there had been
a promise. Clark v. Peoples Savings and Loan
Ass'n of De Kalb County, 221 Ind. 168, 46 N.E.2d
681, 682, 144 A.L.R. 1495. It is not based on inten-
Special Contract
A contract under seal; a specialty; as distinguished from one merely oral or in writing not
sealed. But in common usage this term is often
used to denote an express or explicit contract, one
which clearly defines and settles the reciprocal
rights and obligations of the parties, as distinguished from one which must be made out, and its
terms ascertained, by the inference of the law
from the nature and circumstances of the transaction.
A special contract may rest in parol, and does not mean
a contract by specialty; it is defined as one with peculiar
provisions not found in the ordinary contracts relating to
the same subject-matter. Midland Roofing Mfg. Co. v.
Pickens, 96 S.C. 286, 80 S.E. 484, 485.
Subcontract
A contract subordinate to another contract,
made or intended to be made between the contracting parties, on one part, or some of them,
and a stranger. 1 H.B1. 37, 45. One made under
a prior contract. Mobley v. Leeper Bros. Lumber
Co., 89 Okl. 95, 214 P. 174, 175.
Where 'a person has contracted for the performance of
certain work (e. g., to build a house,) and he in turn engages a third party to perform the whole or a part of that
which is included in the original contract, (e. g., to do the
carpenter work,) his agreement with such third person is
called a "subcontract," and such person is called a "sub-
396
CONTRACTUS
contractor." Central Trust Co. v. Railroad Co., C.C.Ky.,
54 F. 723 Lester v. Houston, 101 N.C. 605, 8 S.E. 366. The
term "subcontractor" means one who has contracted with
the original contractor for the performance of all or a
part of the work or services which such contractor has
himself contracted to perform. Republic Supply Co. v.
Allen, Tex.Civ.App., 262 S.W. 113, 114.
Unconscionable Contract
One which no sensible man not under delusion,
duress, or in distress would make, and such as
no honest and fair man would accept. Franklin
Fire Ins. Co. v. Noll, 115 Ind.App. 289, 58 N.E.2d
947, 949, 950.
Unilateral and Bilateral
A unilateral contract is one in which one party
makes an express engagement or undertakes a
performance, without receiving in return any express engagement or promise of performance
from the other. Bilateral (or reciprocal) contracts are those by which the parties expressly
enter into mutual engagements, such as sale or
hire. Civ. Code La. art. 1765; Poth. Obl. 1, 1, 1,
2; Kling Bros. Engineering Works v. Whiting
Corporation, 320 Ill.App. 630, 51 N.E.2d 1004, 1007.
When the party to whom an engagement is made
makes no express agreement on his part, the contract is called unilateral, even in cases where the
law attaches certain obligations to his acceptance.
La. Civ. Code, art. 1765. A contract is also said
to be "unilateral" when there is a promise on one
side only, the consideration on the other side being
executed. McMahan v. McMahon, 122 S.C. 336,
115 S.E. 293, 294, 26 A.L.R. 1295.
Usurious Contract
See that title.
Written Contract
A "written contract" is one which in all its terms
is in writing. Fey v. Loose-Wiles Biscuit Co., 147
Kan. 31, 75 P.2d 810, 813; and instrument signed
by one party is orally accepted by other, Reeves
Furniture Co. v. Simms, Tex.Civ.App., 59 S.W.2d
262, 263.
CONTRACT, ESTOPPEL BY. There are two
sorts of "estoppel by contract," estoppel to deny
truth of facts agreed on and settled by force of
entering into contract, and estoppel arising from
acts done under or in performance of contract.
In re Schofield's Estate, 101 Colo. 443, 73 P.2d 1381.
Finch v. Smith, 177 Okl. 307, 58 P.2d 850, 851.
"Estoppel by contract" is intended to embrace all cases
in which there is an actual or virtual undertaking to treat
a fact as settled. Jackson v. United Gas Public Service Co.,
198 So. 633, 640, 196 La. 1. It means party is bound by
terms of own contract until set aside or annulled for fraud,
accident, or mistake. United Fidelity Life Ins. Co. v.
Fowler, Tex.Civ.App., 38 S.W.2d 128, 131.
CONTRACT OF BENEVOLENCE. A contract
made for the benefit of one of the contracting
parties only, as a mandate or deposit.
CONTRACT OF RECORD. A contract of record
is one which has been declared and adjudicated
by a court having jurisdiction, or which is entered
of record in obedience to, or in carrying out, the
judgments of a court.
CONTRACT OF SALE. A contract by which one
of the contracting parties, called the "seller," enters into an obligation to the other to cause him
to have freely, by a title of proprietor, a thing,
for the price of a certain sum of money, which
the other contracting party, called the "buyer,"
on his part obliges himself to pay. Topzant v.
Koshe, 242 Wis. 585, 9 N.W.2d 136, 138.
CONTRACT SYSTEM. As applied to state prisons, this phrase signifies that the labor of the
prisoners is utilized by private persons or contractors, who thus secure the profits of such labor.
People v. Hawkins, 157 N.Y. 1, 51 N.E. 257, 260, 42
L.R.A. 490, 68 Am.St.Rep. 736.
CONTRACTION. Abbreviation; abridgment or
shortening of a word by omitting a letter or letters or a syllable, with a mark over the place
where the elision occurs. This was customary in
records written in the ancient "court hand," and
is frequently found in the books printed in blackletter.
CONTRACTOR. This term is strictly applicable
to any person who enters into a contract (Kent v.
Railroad Co., 12 N.Y. 628), but is commonly reserved to designate one who, for a fixed price,
undertakes to procure the performance of works
on a large scale, or the furnishing of goods in
large quantities, whether for the public or a company or individual. McCarthy v. Second Parish,
71 Me. 318, 36 Am.Rep. 320.
One who in pursuit of independent business
undertakes to perform a job or piece of work, retaining in himself control of means, method and
manner of accomplishing the desired result. Marion Malleable Iron Works v. Baldwin, 82 Ind.App.
206, 145 N.E. 559, 560.
CONTRACTUAL OBLIGATION. The obligation
which arises from a contract or agreement.
CONTRACTUS. Lat. Contract; a contract; contracts.
CONTRACTUS BONZE FIDEL In Roman law.
Contracts of good faith. Those contracts which,
when brought into litigation, were not determined
by the rules of the strict law alone, but allowed
the judge to examine into the bona fides of the
transaction, and to hear equitable considerations
against their enforcement. In this they were opposed to contracts stricti juris, against which
equitable defenses could not be entertained.
CONTRACTUS CIVILES. In Roman law. Civil
contracts. Those contracts which were recognized
as actionable by the strict civil law of Rome, or
as being founded upon a particular statute, as
distinguished from those which could not be enforced in the courts except by the aid of the
praetor, who, through his equitable powers, gave
an action upon them. The latter were called
"contractus prcetorii."
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SIUDVIIINOD
CONTROVER
eral average," 3 Kent, Comm. 232-244; 1 Story,
Eq. Jur. § 490.
CONTRECTATIO. In the civil and old English
law. Touching; handling; meddling. The act of
removing a thing from its place in such a manner that, if the thing be not restored, it will
amount to theft.
CONTRIBUTION TO CAPITAL. A fund or property contributed by shareowners as financial basis
for prosecution of corporation's business, and signifies resources whose dedication to users of the
corporation is made the foundation for issuance
of capital stock and which became irrevocably devoted to satisfaction of all obligations of corporation. Detroit Edison Co. v. Commissioner of
Internal Revenue, C.C.A.6, 131 F.2d 619, 623.
CONTRECTATIO REI ALIENZE, ANIMO FURAND!, EST FURTUM. Jenk. Cent. 132. The
touching or removing of another's property, with
an intention of stealing, is theft.
CONTREFACON. In French law. The offense
of printing or causing to be printed a book, the
copyright of which is held by another, without authority from him. Merl. Repert.
CONTRIBUTIONE FACIENDA. In old English
law. A writ that lay where tenants in common
were bound to do some act, and one of them was
put to the whole burthen, to compel the rest to
make contribution. Reg. Orig. 175; Fitzh. Nat.
Brev, 162.
CONTRE-MAITRE. In French marine law. The
chief officer of a vessel, who, in case of the sickness or absence of the master, commanded in his
place. Literally, the countermaster.
CONTRIBUTORY, n. A person liable to contribute to the assets of a company which is being
wound up, as being a member or (in some cases)
a past member thereof. Mozley & Whitley.
CONTRIBUTE. To lend assistance or aid, or give
something, to a common purpose; to have a share
in any act or effect; to discharge a joint obligation. Christman v. Reichholdt, Mo.App., 150 S.
W.2d 527, 532; James McCord Co. v. Citizens Hotel Co., Tex.Civ.App., 287 S.W. 906; Park v. Missionary Soc., 62 Vt. 19, 20 A. 107.
CONTRIBUTORY, adj. Joining in the promotion
of a given purpose; lending assistance to the production of a given result. Armstrong v. Green,
113 Okl. 254, 241 P. 789, 791.
As applied to negligence signifies causal connection between injury and negligence, which transcends and is distinguished from negligent acts or omissions which play so
minor a part in producing injuries that law does not recognize them as legal causes. Connellan v. Coffey, 122 Conn.
136, 187 A. 901, 903.
CONTRIBUTION. In the civil law. A partition
by which the creditors of an insolvent debtor di•
vide among themselves the proceeds of his property proportionably to the amount of their respective credits. Code La. art. 3556, par. 9.
Division which is made among the heirs of the
succession of the debts with which the succession is charged, according to the proportion which
each is bound to bear. Civ.Code La. art. 1420.
In common law. The sharing of a loss or payment among several. The act of any one or several of a number of co-debtors, co-sureties, etc., in
reimbursing one of their number who has paid
the whole debt or suffered the whole liability,
each to the extent of his proportionate share. Canosia Tp. v. Grand Lake Tp., 80 Minn. 357, 83 N.
W. 346; Ratte v. Ratte, 260 Mass. 165, 156 N.E.
870, 871. Right of one who has discharged a
common liability to recover of another also liable,
the aliquot portion which he ought to pay or bear.
St. Lewis v. Morrison, D.C.Ky., 50 F.Supp. 570,
572, 573. Parten v. First Nat. Bank & Trust Co.,
283 N.W. 408, 412, 204 Minn. 200, 120 A.L.R. 962;
Chapman v. Lamar-Rankin Drug Co., 64 Ga.App.
493, 13 S.E.2d 734, 737. Fidelity & Casualty Ins.
Co. of New York v. Sears, Roebuck & Co., 124
Conn. 227, 199 A. 93, 94.
In maritime law. Where the property of one
of several parties interested in a vessel and cargo
has been voluntarily sacrificed for the common
safety, (as by throwing goods overboard to lighten the vessel,) such loss must be made good by the
contribution of the others, which is termed "gen-
As to contributory "Infringement" and "Negligence," see those titles.
CONTROL, v. To exercise restraining or directing influence over; regulate; restrain; dominate; curb; to hold from action; overpower; court,
teract; govern. Owen v. Trail, 302 Mo. 292, 258 S.
W. 699, 702; Hopkins v. Howard's Ex'x, 266 Ky.
685, 99 S.W.2d 810, 812.
To control a thing is to have the right to exercise a directing or governing influence over it. Trust Co. of New
Jersey v. Greenwood Cemetery, 21 N.J.Misc. 169, 32 A.2d
519, 523.
CONTROL, n. Power or authority to manage,
direct, superintend, restrict, regulate, direct, govern, administer, or oversee. State v. First State
Bank of Jud, 52 N.D. 231, 202 N.W. 391, 402.
The "control" involved in determining whether "principal and agent relationship" or "master and servant relationship" is involved must be accompanied by power or
right to order or direct. Mid-Continent Petroleum Corporation v. Vicars, 221 Ind. 387, 47 N.E.2d 972, 975.
Driver must at 'all times have automobile under control,
means having it under such control that it can be stopped
before doing injury to any person in any situation that
is reasonably likely to arise under the circumstances.
Kindt v. Reading Co., 352 Pa. 419, 43 A.2d 145, 147.
CONTROL OF CARBON. Such a chemical action
upon the carbon in an alloy as will keep it largely in a combined graphitic state. Pittsburgh Iron,
& Steel Foundries Co. v. Seaman-Sleeth Co., D.C.
Pa., 236 F. 756, 760.
CONTROLLER. A comptroller, which see.
CONTROLMENT. In old English law, The controlling or checking of another officer's account;
the keeping of a counter-roll.
CONTROVER. In old English law. An inventor
or deviser of false news. 2 Inst. 227.
399
CONTROVERSIES
CONTROVERSIES ARISING IN BANKRUPTCY
PROCEEDINGS. Within Bankruptcy Act § 24a,
11 U.S.C.A. § 47(a), investing Circuit Courts of
Appeals with appellate jurisdiction, include those
matters arising in the course of a bankruptcy proceeding, which are not mere steps in the ordinary
administration of the bankrupt estate, but present
distinct and separable issues, between the trustee
and adverse claimants concerning the right and
title to the bankrupt's estate. Handlan v. Bennett, C.C.A.W.Va., 51 F.2d 21, 23.
CONTUSION. In medical jurisprudence. A
bruise; an injury to any external part of the body
by the impact of a fall or the blow of a blunt
instrument, without laceration of the flesh, and
either with or without a tearing of the skin, but
in the former case it is more properly called a
"contused wound." Gasperino v. Prudential Ins.
Co. of America, Mo.App., 107 S.W. 819, 827.
CONTROVERSY. A litigated question; adversary proceeding in a court of law; a civil action or
suit, either at law or in equity; a justiciable dispute. Barber v. Kennedy, 18 Minn. 216 (Gil. 196);
State v. Guinotte, 156 Mo. 513, 57 S.W. 281, 50 L.
R.A. 787.
CONUSANCE, In English law. Cognizance or
jurisdiction. Conusance of pleas. Termes de la
Ley.
It differs from "case," which includes all suits, criminal
as well as civil; whereas "controversy" is a civil and not
a criminal proceeding. Chisholm v. Georgia, 2 Da11. 419,
431, 432, 1 L.Ed. 440.
CONTROVERT. To dispute; to deny; to oppose
or contest; to take issue on. Reese v. Adamson,
297 Pa. 13, 146 A. 262, 263.
CONTUBERNIUM. In Roman law. The marriage of slaves; a permitted cohabitation.
CONTUMACE CAPIENDO. In English law. Excommunication in all cases of contempt in the
spiritual courts is discontinued by 53 Geo. III, c.
127, § 2, and in lieu thereof, where a lawful citation or sentence has not been obeyed, the judge
shall have power, after a certain period, to pronounce such person contumacious and in contempt, and to signify the same to the court of
chancery, whereupon a writ de contumace capiendo shall issue from that court, which shall have
the same force and effect as formerly belonged, in
case of contempt, to a writ de excommunicato capiendo. (2 & 3 Wm. IV, c. 93; 3 & 4 Viet. c. 93.)
Wharton; 1 Holdsw. Hist. Engl. Law App. XVIII.
See Excommunication.
CONTUTOR. Lat. In the civil law. A co-tutor,
or co-guardian. Inst. 1, 24, 1.
CONjJSANCE, CLAIM OF. See Cognizance.
CONUSANT. Cognizant; acquainted with; having actual knowledge; as, if a party knowing of
an agreement in which he has an interest makes
no objection to it, he is said to be conusant. Co.
Litt. 157.
CONUSEE. See Cognizee,
CONUSOR. See Cognizor,
CONVALESCENCE. Gradual recovery of health
or physical strength after illness. Romesburg v.
Federal Life Ins. Co., 147 Kan. 378, 76 P.2d 829,
831.
CONVENABLE. In old English law. Suitable;
agreeable; convenient; fitting. Litt. § 103.
CONVENE. In the civil law. To bring an action.
CONVENIENCE AND NECESSITY. If there is
a reasonable need apparent for use of the service, and if a common carrier is not unduly 'interfered with, nor the public highways unduly burdened, a case of "convenience and necessity" exists with respect to an application for a license to
operate as a contract motor carrier. Short Way
Lines v. Black, 182 S.W.2d 17, 19, 298 Ky. 67.
CONTUMACY. The refusal or intentional omission of a person who has been duly cited before
a court to appear and defend the charge laid
against him, or, if he is duly before the court, to
obey some lawful order or direction made in the
cause. In the former case it is called "presumed"
contumacy; in the latter, "actual." The term is
chiefly used in ecclesiastical law. See 3 Curt. Ecc.
CONVENIENT. Proper; just; suitable; fit;
adapted; proper; becoming appropriate. Finlay
v. Dickerson, 29 Ill. 20; Railway Co. v. Smith, 19
S.Ct. 565, 173 U.S. 684, 43 L.Ed. 858; Prina v.
Board of Sup'rs of Graham County, 16 Ariz. 252,
143 P. 567, 568.
CONTUMAX. One accused of a crime who refuses to appear and answer to the charge. An outlaw.
CONVENT. The fraternity of an abbey or prig
ory, as societas is the number of fellows in a college. A religious house, now regarded as a merely voluntary association, not importing civil death.
33 Law J. Ch. 308.
An association or community of recluses devoted to a
1.
CONTUMELY. Rudeness compounded of haughtiness and contempt; scornful insolence; despiteful treatment; disdain, contemptuousness in act
or speech; disgrace. United States v. Strong, D.
C.Wash., 263 F. 789, 796.
CONTUSE. To bruise; to injure or disorganize
a part of without breaking the skin. Ansley v.
Travelers Ins. Co., 27 Tenn.App. 720, 173 S.W.2d
702, 704.
CONVENIT. Lat. In civil and old English law.
It is agreed; it was agreed.
religious life under a superior; a body of monks, friars, or
nuns, constituting one local community; now usually
restricted to a convent of nuns; as, to go into a convent.
Sacred Heart Academy of Galveston v. Karsch, 122 S.W.2d
416, 417, 173 Tenn. 618.
CONVENTICLE. A private assembly or meeting
for the exercise of religion. The word was first
an appellation of reproach to the religious asserm
400
CONVENTUS
blies of Wycliffe in the reigns of Edward III, and
Richard II., and was afterwards applied to a meeting of dissenters from the established church. As
this word in strict propriety denotes an unlawful
assembly, it cannot be justly applied to the assembling of persons in places of worship licensed
according to the requisitions of law. Wharton.
CONVENTIO. Canon Law. The act of summoning or calling together the parties by summoning
the defendant.
The Civil Law. A compact, agreement, or convention. An agreement between two or more persons respecting a legal relation between them.
Mackeld. Rom. Law, §§ 385, 386.
The term is one of very wide scope, and applies to all
classes of subjects in which an engagement or business
relation may be founded by agreement. It is to be distinguished from the negotiations or preliminary transactions on the object of the convention and fixing its extent,
which are not binding so long as the convention is not concluded.
In contracts. An agreement; a covenant. Cowell.
CONVENTIO IN UNUM. In the civil law. The
agreement between the two parties to a contract
upon the sense of the contract proposed. It is an
essential part of the contract, following the pollicitation or proposal emanating from the one, and
followed by the consension or agreement of the
other.
CONVENTIO PRIVATORUM NON POTEST
PUBLICO JURI DEROGARE. The agreement of
private persons cannot derogate from public right,
i. e., cannot prevent the application of general
rules of law, or render valid any contravention of
law. Co. Litt. 166a; Wing. Max. p. 746, max. 201.
CONVENTIO VINCIT LEGEM. The express
agreement of parties overcomes [prevails against]
the law. Story, Ag. § 368.
CONVENTION. In English law. An extraordinary assembly of the houses of lords and commons, without the assent or summons of the sovereign. It can only be justified ex necessitate rei,
as the parliament which restored Charles II., and
that which disposed of the crown and kingdom to
William and Mary. Wharton. Also the name of
an old writ that lay for the breach of a covenant.
'pacts.' These generally did not produce an actionable
obligation. Actionability was subsequently given to several
pacts, whereby they received the same power and efficacy
that contracts received." Mackeld.Rom.Law, § 395.
In legislation. An assembly of delegates or
representatives chosen by the people for special
and extraordinary legislative purposes, such as
the framing or revision of a state constitution.
Also an assembly of delegates chosen by a political party, or by the party organization in a larger or smaller territory, to nominate candidates for
an approaching election. In re Opinion of the
Justices, 132 Me. 491, 167 A. 176, 179.
In public and international law. A pact or
agreement between states or nations in the nature of a treaty; usually applied (a) to agreements or arrangements preliminary to a formal
treaty or to serve as its basis, or (b) international agreements for the regulation of matters of
common interest but not coming within the sphere
of politics or commercial intercourse, such as international postage or the protection of submarine cables. U. S. v. Hunter, C.C.Mo., 21 F. 615..
Constitutional convention. See Constitution..
Judicial convention. See Judicial,
CONVENTIONAL. Depending on, or arising
from, the mutual agreement of parties; as distinguished from legal, which means created by,
or arising from, the act of the law. De Vita Nr&
Pianisani, 217 N.Y.S. 438, 440, 127 Misc. 611.
As to conventional "Estates," "Interest," "Mortgage," "Subrogation," and "Trustees," see those titles.
CONVENTIONAL LIEN. A lien is conventional
where the lien, general or particular (Cro. Car.
271; 6 Term. 14; 2 Kent 637) is raised by the express agreement and stipulation of the parties,
in circumstances where the law alone would not
create a lien from the mere relation of the parties or the details of their transaction.
CONVENTIONE. The name of a writ for the
breach of any covenant in writing, whether real
or personal. Reg.Orig. 115; Fitzh.Nat.Brev. 145.
CONVENTIONS. This name is sometimes given
to compacts or treaties with foreign countries as
to the apprehension and extradition of fugitive
offenders. See Extradition.
In Roman law. An agreement between parties;
a pact. A convention was a mutual engagement
between two persons, possessing all the subjective
requisites of a contract, but which did not give
rise to an action, nor receive the sanction of the
law, as bearing an "obligation," until thQ objective requisite of a solemn ceremonial, (such as
stipulatio) was supplied. In other words, convention was the informal agreement of the parties, which formed the basis of a contract, and
which became a contract when the external formalities were superimposed. See Maine, Anc.
Law, 313.
CONVENTUS. Lat. A coming together; a con•
vention or assembly. Conventus magnatum vel
procerum (the assembly of chief men or peers)
was one of the names of the English parliament.
1 Bl. Comm. 148.
"The division of conventions into contracts and pacts was
i mportant in the Roman law. The former were such conventions as already, by the older civil law, founded an obligation and action; all the other conventions were termed
In the civil law. The term meant a gather.
ing together of people; a crowd assembled for
any purpose; also a convention, pact, or bargain.
Black's Law Dictionary Revised 4th Ed.-26
CONVENTUAL CHURCH. In ecclesiastical law.
That which consists of regular clerks, professing
some order or religion; or of dean and chapter;
or other societies of spiritual men.
CONVENTUALS. Religious men united in a convent or religious house. Cowell.
401
CONVENTUS
CONVENTUS JURIDICUS. In the Roman law.
A court of sessions held in the Roman provinces,
by the president of the province, assisted by a certain number of counsellors and assessors, at fixed
periods, to hear and determine suits, and to provide for the civil administration of the province.
Schm. Civil Law, Introd. 17.
CONVERSANT. One who is in the habit of being in a particular place is said to be conversant
there. Barnes, 162. Acquainted; familiar.
CONVERSANTES. In old English law. Conversant or dwelling; commorant.
CONVERSATION. Manner of living; habits of
life; conduct; as in the phrase "chaste life and
conversation." Bradshaw v. People, 153 Ill. 156,
38 N.E. 652. Criminal conversation means seduction of another man's wife, considered as an
actionable injury to the husband. Prettyman v.
Williamson, 1 Pennewill (Del.) 224, 39 A. 731;
Crocker v. Crocker, C.C.Mass., 98 F. 702.
CONVERSE. The transposition of the subject
and predicate in a proposition, as: "Everything
is good in its place." Converse, "Nothing is good
which is not in its place." Wharton.
CONVERSION. Equity. The exchange of property from real to personal or from personal to
real, which takes place under some circumstances
in the consideration of the law, such as, to give
effect to directions in a will or settlement, or to
stipulations in a contract, although no such
change has actually taken place, 1 Bro.C.C. 497;
1 Lead.Cas.Eq. 619; 1 Lead. Cas.Eq. 872; Lawrence v. Elliott, 3 Redf.Sur. (N.Y.) 235; Dodge v.
Williams, 46 Wis. 70, 1 N.W. 92, 50 N.W. 1108;
Mattison v. Stone, 99 S.C. 151, 82 S.E. 1046, 1047;
and by which exchange the property so dealt
with becomes invested with the properties and
attributes of that into which it is supposed to
have been converted; Seymour v. Freer, 8 Wall.
214, 19 L.Ed. 306; Haward v. Peavey, 128 Ill. 430,
21 N.E. 503, 15 Am.St.Rep. 120.
Although it is sometimes necessary for certain
purposes of devolution and transfer to regard the
property in its changed condition as though the
change has not absolutely taken place; Davidson
v. Bright, 267 Pa. 580, 110 A. 301, 302.
A qualified conversion is one directed for some particular purpose; Harker v. Reilly, 4 Del.Ch. 72.
Law
An unauthorized assumption and exercise of
the right of ownership over goods or personal
chattels belonging to another, to the alteration of
their condition or the exclusion of the owner's
rights. Stickney v. Munroe, 44 Me. 197; Baldwin
v. Cole, 6 Mod. 212; In re Di Crocco's Estate, 12 N.
Y.S.2d 276, 278, 170 Misc. 826; Powell v. A. K.
Brown Motor Co., 20 S.E.2d 636, 637, 200 S.C. 75.
Any unauthorized act which deprives an owner
of his property permanently or for an indefinite
time. Forbush v. San Diego Fruit & 'Produce
Co., 46 Idaho, 231, 266 P. 659, 663.
Also one who aids and abets another in keeping property
from its rightful owner is guilty of "conversion". Edwards
v. Max Thieme Chevrolet Co., La.App., 191 So. 569, 571,
572.
Constructive conversion. An implied or virtual
conversion, which takes place where a person
does such acts in reference to the goods of another as amount in law to the appropriation of the
property to himself. Scruggs v. Scruggs, C.C.
Mo., 105 F. 28; Laverty v. Snethen, 68 N.Y. 524,
23 Am.Rep. 184; Wade v. Ray, 67 Okl. 39, 168 P.
447, 449, L.R.A.1918B, 796.
Direct conversion. The act of actually appropriating the property of another to his own
beneficial use and enjoyment, or to that of a third
person, or destroying it, or altering its nature.
Ross v. Lewis, 23 N.M. 524, 169 P. 468, 469; or
wrongfully assuming title in himself; Cass v.
Ocean Park Bath Co., 45 Cal.App. 656, 188 P. 616,
617; there must be a positive wrong or act of malfeasance; American Surety Co. of New York v.
Hill County, Tex.Civ.App., 254 S.W. 241, 245.
CONVEY. To pass or transmit the title to property from one to another; to transfer property
or the title to property by deed or instrument under seal. Used popularly in sense of "assign,"
"sale," or "transfer." Crookshanks v. Ransbarger, 80 W.Va. 21, 92 S.E. 78, 82; McQuiddy Printing Co. v. Hirsig, 23 Tenn.App. 434, 134 S.W.2d
197, 205.
Convey relates properly to the disposition of real property, not to personal. Dickerman v. Abrahams, 21 Barb.,
N.Y., 551, 561. To convey real estate is, by an appropriate
instrument, to transfer the legal title to it from the present
owner to another. Abendroth v. Greenwich, 29 Conn. 356.
CONVEYANCE. In pleading. Introduction or
inducement.
In real property law. In the strict legal sense,
a transfer of legal title to land. In the popular
sense, and as generally used by lawyers, it denotes any transfer of title, legal or equitable.
Chupco v. Chapman, 76 Okl. 201, 170 P. 259, 266.
The transfer of the title of land from one person
or class of persons to another. Klein v. McNamara, 54 Miss. 105; Alexander v. State, 28 Tex.
App. 186, 12 S.W. 595; In re Loes' Will, 55 N.Y.S.
2d 723, 726. An instrument in writing under seal,
(anciently termed an "assurance,") by which some
estate or interest in lands is transferred from one
person to another; such as a deed, mortgage, etc.
2 Bl. Comm. 293, 295, 309.
Conveyance includes every instrument in writing by
which any estate or interest in real estate is created,
aliened, mortgaged, or assigned, or by which the title to
any real estate may be affected in law or equity, except
last wills and testaments, leases for a term not exceeding
three years, and executory contracts for the sale or purchase of lands. Stearns Lighting & Power Co. v. Central
Trust Co., C.C.A.Mich., 223 F. 962, 966; Shraiberg v. Hanson, 138 Minn. 80, 163 N.W. 1032, 1033.
General
Absolute or conditional conveyance. An absolute conveyance is one by which the right or property in a thing is transferred, free of any condition or qualification, by which it might be defeated
402
CONVICTION
or changed; as an ordinary deed of lands, in contradistinction to a mortgage, which is a conditional conveyance. Burrill; Falconer v. Buffalo,
etc., R. Co., 69 N.Y. 491; Brown v. United States,
C.C.A.Pa., 95 Fed.2d 487, 489.
Fraudulent conveyance. See Fraudulent.
Mesne conveyance. An intermediate conveyance; one occupying an intermediate position in
a chain of title between the first grantee and the
present holder.
Primary conveyances. Those by means whereof the benefit or estate is created or first arises;
as distinguished from those whereby it may be enlarged, restrained, transferred, or extinguished.
The term includes feoffment, gift, grant, lease,
exchange, and partition, and is opposed to derivative conveyances, such as release, surrender, confirmation, etc. 2 Bl. Comm. 309.
Secondary conveyances. The name given to
that class of conveyances which presuppose some
other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer
the interest granted by such original conveyance.
2 Bl. Comm. 324. Otherwise termed "derivative
conveyances" (q. v.).
Voluntary conveyance. A conveyance without
valuable consideration; such as a deed or settlement in favor of a wife or children. Gentry v.
Field, 143 Mo. 399, 45 S.W. 286; Shannon v. Duffield, 218 Ky. 770, 292 S.W. 322, 323; English v.
Brown, D.C.N.J., 219 F. 248, 256.
CONVEYANCER. One whose business it is to
draw deeds, bonds, mortgages, wills, writs, or other legal papers, or to examine titles to real estate.
14 St. at Large, 118.
He who draws conveyances; especially a barrister who
confines himself to drawing conveyances, and other chamber practice. Mozley & Whitley.
CONVEYANCING. A term including both the
science and art of transferring titles to real estate from one man to another.
Conveyancing is that part of the lawyer's business which
relates to the alienation and transmission of property and
other rights from one person to another, and to the framing of legal documents intended to create, define, transfer,
or extinguish rights. It therefore includes the investigation of the title to land, and the preparation of agreements,
wills, articles of association, private statutes operating as
conveyances, and many other instruments in addition to
conveyances properly so called. Sweet; Livermore v. Bagley, 3 Mass. 505.
CONVEYANCING COUNSEL TO THE COURT
OF CHANCERY. Certain counsel, not fewer than
six in number, appointed by the lord chancellor,
for the purpose of assisting the court of chancery, or any judge thereof, with their opinion in
matters of title and conveyancing. Mozley &
Whitley.
CONVICIA SI IRASCARIS TUA DIVULGAS;
SPRETA EXOLESCUNT. 3 Inst. 198. If you be
moved to anger by insults, -you publish them;
if despised, they are forgotten.
CONVICIUM. In the civil law. The name of a
species of slander or injury uttered in public, and
which charged some one with some act contra
bonos mores.
CONVICT, v. To condemn after judicial investigation; to find a man guilty of a criminal charge.
The word was formerly used also in the sense of
finding against the defendant in a civil case.
Formerly a man was said to be convict when he had been
found guilty of treason or felony, but before judgment had
been passed on him, after which he was said to be attaint,
(q. v.). Co.Litt. 390b.
CONVICT, n. One who has been finally condemned by a court. One who has been adjudged guilty
of a crime or misdemeanor. Usually spoken of
condemned felons or the prisoners in penitentiaries. Molineux v. Collins, 177 N.Y. 395, 69 N.E. 727,
65 L.R.A. 104.
CONVICTED. Means that a judgment of final
condemnation has been pronounced against the
accused. Gallagher v. State, 10 Tex.App. 469;
Neibling v. Terry, 177 S.W.2d 502, 504, 352 Mo.
396, 152 A.L.R. 249.
CONVICTION. In a general sense, the result of
a criminal trial which ends in a judgment or sentence that the prisoner is , guilty as charged.
The act of convicting a person, or state of being convicted, of a criminal offense. Hershey v. People, 91 Colo.
113, 12 P.2d 345, 347. Finding a person guilty by verdict
of a jury. 1 Bish.Crim.Law, § 223; Emmertson v. State
Tax Commission of Utah, 93 Utah 219, 72 P.2d 467, 470,
113 A.L.R. 1174.
A record of the summary proceedings upon any
penal statute before one or more justices of the
peace or other persons duly authorized, in a case
where the offender has been convicted and sentenced. , Holthouse. In respect of pardoning power, verdict of guilty. State v. Garrett, 135 Tenn.
617, 188 S.W. 58, L.R.A.1917B, 567. Contra, Ex
parte White, 28 Okl.Cr, 180, 230 P. 522.
In ordinary phrase, the meaning of the word "conviction" is the finding by the jury of a verdict that the
accused is guilty. But, in legal parlance, it often denotes
the final judgment of the court. Blaufus v. People, 69 N.Y.
109, 25 Am.Rep. 148; Marino v. Hibbard, 243 Mass. 90, 137
N.E. 369; Commonwealth v. Minnich, 250 Pa. 363, 95 A.
565, 567, L.R.A.1916B, 950.
The ordinary legal meaning of "conviction," when used
to designate a particular stage of a criminal prosecution
triable by a jury, is the confession of the accused in open
court or the verdict returned against him by the jury,
which ascertains and publishes the fact of his guilt; while
"judgment" or "sentence" is the appropriate word to
denote the action of the court before which the trial is had,
declaring the consequences to the convict of the fact thus
ascertained. A pardon granted after verdict of guilty, but
before sentence, and pending a hearing upon exceptions
taken by the accused during the trial, is granted after conviction, within the meaning of a constitutional restriction
upon granting pardon before conviction. When, indeed,
the word "conviction" is used to describe the effect of the
guilt of the accused as judicially proved in one case, when
pleaded or given in evidence in another, it is sometimes
used in a more comprehensive sense, including the judgment of the court upon the verdict or confession of guilt;
as, for instance, in speaking of the plea of autrefois convict, or of the effect of guilt, judicially ascertained, as a
disqualification of the convict. Com. v. Lockwood, 109
Mass. 323, 12 Am.Rep. 699; In re Anderson, 34 Cal.App.2d
48, 92 P.2d 1020, 1022. Attorney General ex rel. O'Hara v.
Montgomery, 275 Mich. 504, 267 N.W. 550, 554.
403
CONVICTION
Former Conviction. A previous trial and conviction of the same offense as that now charged;
pleadable in bar of the prosecution. State v.
Ellsworth, 131 N.C: 773, 42 S.E. 699, 92 Am.St.Rep.
790; Williams v. State, 13 Te g .App. 285, 46 Am.
Rep. 237.
Summary Conviction. The conviction of a person, (usually for a minor misdemeanor,) as the
result of his trial before a magistrate or court,without the intervention of a jury, which is authorized by statute in England and in many of
the states. In these proceedings there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such
person only as the statute has appointed to be
his judge. A conviction reached on such a magistrate's trial is called a "summary conviction."
Brown; Blair v. Com., 25 Grat. (Va.) 853.
CONVINCING PROOF. Such as is sufficient to
establish the proposition in question, beyond hesitation, ambiguity, or reasonable doubt, in an unprejudiced mind. Evans v. Rugee, 57 Wis. 623,
16 N.W. 49; French v. Day, 89 Me. 441, 36 A. 909.
See Clear.
CONVIVIUM. A tenure by which a tenant was
bound to provide meat and drink for his lord at
least once in the year. Cowell.
CONVOCATION. In ecclesiastical law. The general assembly of the clergy to consult upon ecclesiastical matters.
CONVOY. A naval force, under the command of
an officer appointed by government, for the protection of merchant-ships and others, during the
whole voyage, or such part of it as is known to require such protection. Marsh. Ins. b. 1, c. 9, § 5;
Park, Ins. 388; Peake, Add. Cas. 143n; 2 H. Bl.
551.
CO-OBLIGOR. A joint obligor; one bound jointly with another or others in a bond or obligation.
COOL BLOOD. In the law of homicide. Calmness
or tranquillity; the undisturbed possession of
one's faculties and reason; the absence of violent passion, fury, or uncontrollable excitement.
COOLING TIME. Time to recover "cool blood"
after severe excitement or provocation; time for
the mind to become so calm and sedate as that it
is supposed to contemplate, comprehend, and coolly act with reference to the consequences likely
to ensue. May v. People, 8 Colo. 210, 6 P. 816;
Keiser v. Smith, 71 Ala. 481, 46 Am.Rep. 342.
CO-OPERATE. To act jointly or concurrently
toward a common end. Darnell v. Equity Life
Ins. Co.'s Receivers, 179 Ky. 465, 200 S.W. 967,
970.
CO-OPERATION. In economics. The combined
action of numbers. It is of two distinct kinds:
(1) Such co-operation as takes place when several persons help each other in the same employment; (2) such co-operation as takes place when
several persons help each other in different em-
ployments. These may be termed "simple cooperation" and "complex co-operation." Mill, Pol.
Ec. 142.
In patent law. Unity of action to a common
end or a common result, not merely joint or simultaneous action. Boynton Co. v. Morris Chute
Co., C.C.N.J., 82 F. 444; Fastener Co. v. Webb, C.
C.Ohio, 89 F. 987; Holmes Burglar Alarm Tel. Co.
v. Domestic, etc., Tel. Co., C.C.N.J., 42 F. 227.
CO-OPERATIVE ASSOCIATION. A union of individuals commonly laborers, farmers, or small
capitalists, formed for the prosecution in common
of some productive enterprise, the profits being
shared in accordance with the capital or labor
contributed by each. Mooney v. Farmers' Mercantile & Elevator Co. of Madison, 138 Minn. 199,
164 N.W. 804, 805.
CO-OPERATIVE NEGLIGENCE. Contributory
negligence. Otte v. Miller, 24 S.E.2d 90, 93, 125
W.Va. 317.
COOPERTIO. In old English law. The head or
branches of a tree cut down; though coopertio
arborum is rather the bark of timber trees felled,
and the chumps and broken wood. Cowell.
COOPERTUM. In forest law. A covert; a
thicket (dumetum) or shelter for wild beasts in
a forest. Spelman.
COOPERTURA. In forest law. A thicket, or
covert of wood.
COOPERTUS. Covert; covered.
CO-OPTATION. A concurring choice; the election, by the members of a close corporation, of
a person to fill a vacancy.
CO-ORDINATE. Equal, of the same order, rank,
degree or importance; not subordinate. Empire
Ins. Co. of Texas v. Cooper, Tex.Civ.App., 138 S.
W.2d 159, 164. Adjusted to, in harmony with.
ZEolian-Skinner Organ Co. v. Shepard Broadcasting Service, C.C.A.Mass., 81 F.2d 392, 395. As to
courts of "co-ordinate jurisdiction," see Jurisdiction.
Co-ordinate and Subordinate are terms often applied as a
test to ascertain the doubtful meaning of clauses in an act
of parliament. If there be two, one of which is grammatically governed by the other, it is said to be "subordinate" to it; but, if both are equally governed by some
third clause, the two are called "co-ordinate." Wharton.
CO-ORDINATE JURISDICTION. That which is
possessed by courts of equal rank, degree, or authority, equally competent to deal with the matter
in question, whether belonging to the same or different systems; concurrent jurisdiction.
COPAUCENARY. A species of estate, or tenancy, which exists where lands of inheritance descend from the ancestor to two or more persons.
It arises in England either by common law or
particular custom. By common law, as where a
person, seised in fee-simple or fee-tail, dies, and
his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representa-
404
COPYHOLD
tives; in this case they all inherit, and these coheirs, are then called "coparceners," or, for brevity, "parceners" only. Litt. §§ 241, 242; 2 Bl.
Comm. 187. By particular custom, as where lands
descend, as in gavelkind, to all the males in equal
degree, as sons, brothers, uncles, etc. Litt. §
265; 1 Steph. Comm. 319. An estate which several
persons hold as one heir, whether male or female.
This estate has the three unities of time, title,
and possession; but the interests of the coparceners may be unequal. 1 Washb. Real Prop. 414;
2 Bl. Comm. 188; 4 Kent 366; Flynn v. Herye, 4
Mo.App. 360.
While joint tenancies refer to persons, the idea of coparcenary refers to the estate. The title to it is always by
descent. The respective shares may be unequal; as, for
instance, one daughter and two granddaughters, children
of a deceased daughter, may take by the same act of descent. As to strangers, the tenants' seisin is a joint one,
but, as between themselves, each is seised of his or her
own share, on whose death it goes to the heirs, and not
by survivorship. The right of possession of coparceners Ts
in common, and the possession of one is, in general, the
possession of the others. 1 Washb.Real Prop. *414.
COPARCENERS. Persons to whom an estate of
inheritance descends jointly, and by whom it is
held as an entire estate. 2 Bl. Comm. 187.
COPARTICEPS, In old English law. A coparcener.
COPARTNER. One who is a partner with one
or more other persons; a member of a partnership.
COPARTNERSHIP. A partnership.
COPPER MATTE. A product of smelting copper
ore in a furnace consisting almost entirely of a
mixture of iron sulphide and copper sulphide. It
requires further treatment to break up and remove iron sulphide, and then convert remaining
copper sulphide which is called white metal to
metallic copper. United Verde Copper Co. v.
Peirce-Smith Converter Co., C.C.A.Del., 7 F.2d
13. Also known as "regulus of copper." U. S. v.
Consolidated Kansas City Smelting & Refining Co,.
8 Ct.Cust.App. 226, 227.
COPPICE, or COPSE. A small wood consisting
of underwood, which may be cut at twelve or fifteen years' growth for fuel.
COPROLALIA. In medical jurisprudence. A
disposition or habit of using obscene language,
developing unexpectedly in the particular individual or contrary to his previous history and habits,
recognized as a sign of insanity or of aphasia.
COPULA. The corporal consummation of marriage. Copula, (in logic,) the link between subject and predicate contained in the verb.
COPULATIO VERBORUM INDICAT ACCEPTATIONEM IN EODEM SENSU. Coupling of words
together shows that they are to be understood
in the same sense. 4 Bacon's. Works, p. 26;
Broom, Max. 588.
COPULATIVE TERM. One which is placed between two or more others to join them together.
COPARTNERY. In Scotch law. The contract
of copartnership. A contract by which the several
partners agree concerning the communication of
loss or gain, arising from the subject of the contract. Bell.
COPY. The transcript or double of an original
writing; as the copy of a patent, charter, deed,
etc. Nations v. Lowenstern, 27 N.M. 613, 204 P.
60, 62; State Text-Book Commission v. Weathers,
184 Ky. 748, 213 S.W. 207, 210; In re Janes' Estate, 18 Ca1.2d 512, 116 P.2d 438, 441.
COPE. A custom or tribute due to the crown
or lord of the soil, out of the lead mines in Derbyshire; also a hill, or the roof and covering of a
house; a church vestment.
Carbon copies. Carbon copies made at the
same time and with the same device as the original are not "copies" but duplicate originals.
Martin & Lanier Paint Co. v. Daniels, 27 Ga.App.
302, 108 S.E. 246, 247; Liberty Nat. Bank and
Trust Co. v. Louisville Trust Co., 295 Ky. 825, 175
S.W.2d 524, 528.
COPEMAN, or COPESMAN. A chapman, (q. v.).
COPESMATE. A merchant; a partner in merchandise.
COPIA. Lat. In civil and old English law. Opportunity or means of access.
In old English law. A copy. Copia libelli,
the copy of a libel. Reg. Orig. 58.
COPIA LIBELLI DELIBERANDA. The name of
a writ that lay where a man could not get a copy
of a libel at the hands of a spiritual judge, to have
the same delivered to him. Reg. Orig. 51.
COPIA VERA. In Scotch practice. A true copy.
Words written at the top of copies of instruments.
COPPA. In English law. A crop or cock of
grass, hay, or corn, divided into titheable portions, that it may be more fairly and justly tithed.
COPPER AND SCALES. See Mancipatio.
Exemplifications are copies verified by the great
seal or by the seal of a court. West Jersey Traction Co. v. Board of Public Works, 57 N.J.Law,
313, 30 A. 581.
Examined copies are those which have been
compared with the original or with an official record thereof.
Office copies are those made by officers intrusted with the originals and authorized for that purpose. Id., Stamper v. Gay, 3 Wyo. 322, 23 P. 69.
See, also, Office.
In the law of copyrights. A reproduction or duplication of a thing, or that which comes so near
to the original as to give to every person seeing
it the idea created by the original. McConnor v.
Kaufman, D.C.N.Y., 49 F.Supp. 738, 744.
COPYHOLD. A species of estate at will, or customary estate in England, the only visible title
405
COPYHOLD
to which consists of the copies of the court rolls,
which are made out by the steward of the manor,
on a tenant's being admitted to any parcel of
land, or tenement belonging to the manor. It is
an estate at the will of the lord, yet such a will
as is agreeable to the custom of the manor, which
customs are preserved and evidenced by the rolls
of the several courts baron, in which they are
entered. 2 Bl.Comm. 95. In a larger sense, copyhold is said to ifnport every customary tenure,
(that is, every tenure pending on the particular
custom of a manor,) as opposed to free socage,
or freehold, which may now (since the abolition
of knight-service) be considered as the general or
common-law tenure of the country. 1 Steph.
Comm. 210.
Copyhold commissioners. Commissioners appointed to carry into effect various acts of parliament, having for their principal objects the
compulsory commutation of manorial burdens and
restrictions, (fines, heriots, rights to timber and
minerals, etc.,) and the compulsory enfranchise.
ment of copyhold lands. 1 Steph. Comm. 643;
Elton, Copyh.
Copyholder. A tenant by copyhold tenure, (by
copy of court-roll.) 2 Bl. Comm. 95.
Privileged copyholds. Those copyhold estates
which are said to be held according to the custom of the manor, and not at the will of the lord,
as common copyholds are. They include customary freeholds and ancient demesnes. i Crabb,
Real Prop. p. 709, § 919.
COPYRIGHT. The right of literary property as
recognized and sanctioned by positive law. An
intangible, incorporeal right granted by statute
to the author or originator of certain literary or
artistic productions, whereby he is invested, for
a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them. In re Rider, 16 R.I. 271,
15 A. 72; Mott Iron Works v. Clow, C.C.A.Ill., 82
F. 316, 27 C.C.A. 250; Palmer v. De Witt, 47 N.Y.
536, 7 Am.Rep. 480; Stuff v. La Budde Feed &
Grain Co., D.C.Wis., 42 F.Supp. 493, 497; Schill
v. Remington Putnam Book Co., 179 Md. 83, 17
A.2d 175.
International copyright is the right of a subject of one country to protection against the republication in another country of a work which
he originally published in his own country.
Sweet.
CORAM IPSO REGE. Before the king himself.
The old name of the court of king's bench, which
was originally held before the king in person. 3
Bl.Comm. 41.
CORAM NOBIS. Before us ourselves, (the king,
i. e., in the king's or queen's bench.) Applied to
writs of error directed to another branch of the
same court, e. g., from the full bench to the court
at nisi prius. 1 Archb. Pr. K. B. 234. See Writ of
Error.
CORAM NON JUDICE. In presence of a person
not a judge. When a suit is brought and determined in a court which has no jurisdiction in the
matter, then it is said to be coram non judice, and
the judgment is void. Manufacturing Co. v. Holt,
51 W.Va. 352, 41 S.E. 351.
CORAM PARIBUS. Before the peers or freeholders. The attestation of deeds, like all other
solemn transactions, was originally done only
coram paribus. 2 Bl.Comm. 307. Coram paribus
de vicineto, before the peers or freeholders of the
neighborhood. Id. 315.
CORAM SECTATORIBUS. Before the suitors.
Cro. Jac. 582.
CORAM VOBIS. Before you. A writ of error
directed by a court of review to the court which
tried the cause, to correct an error in fact. 3 Md.
325; 3 Steph.Comm. 642. See Writ of Error.
CORD. A measure of wood containing 128 cubic
feet, otherwise expressed as a pile of wood 8 feet
long, 4 feet high, and 4 feet wide. Sacks v. State,
83 Tex.Cr.R. 560, 204 S.W. 430.
CO-RESPONDENT. A person summoned to answer a bill, petition, or libel, together with another respondent. Now chiefly used to designate
the person charged with adultery with the respondent in a suit for divorce for that cause, and
joined as a defendant with such party. Lowe v.
Bennett, 27 Misc. 356, 58 N.Y.S. 88. Mortensen v.
Los Angeles Examiner, 112 Cal.App. 194, 296 P.
927, 930.
CORIUM FORISFACERE. To forfeit one's skin,
applied to a person condemned to be whipped;
anciently the punishment of a servant. Corium
perdere, the same. Corium redimere, to compound for a whipping. Wharton.
CORAAGIUM, or CORAAGE. Measures of corn.
An unusual and extraordinary tribute, arising
only on special occasions. They are thus distinguished from services. Mentioned in connection
with hidage and carvage. Cowell.
CORN. In English law, a general term for any
sort of grain; but in America it is properly applied only to maize. Sullins v. State, 53 Ala. 476;
Kerrick v. Van Dusen, 32 Minn. 317, 20 N.W. 228;
Corn. v. Pine, 3 Pa.Law J. 412.
CORAM. Lat. Before; in presence of. Applied
to persons only. Townsh. Pl. 22.
In the memorandum clause in policies of insurance it
includes pease and beans, but not rice. Park, Ins. 112;
Scott v. Bourdillion, 2 Bos. & P., N. It., 213.
CORAM DOMINO REGE. Before our lord the
king. Coram domino rege ubicumque tune fuerit
Anglice, before our lord the king wherever he shall
then be in England.
CORN LAWS. A species of protective tariff formerly in existence in England, imposing importduties on various kinds of grain. The corn laws
were abolished in 1846.
406
CORONER
CORODY. In old English law. A sum of money
or allowance of meat, drink, and clothing due
to the crown from the abbey or other religious
house, whereof it was founder, towards the sustentation of such one of its servants as is thought
fit to receive it. It differs from a pension, in that
it was allowed towards the maintenance of any
of the king's servants in an abbey; a pension being given to one of the king's chaplains, for his
better maintenance, till he may be, provided with
a benefice. Fitzh. Nat. Brev. 250. See 1 Bl.Comm.
283.
CORN MEAL. An unmixed meal made from entire grains of corn. Miller Grain & Commission
Co. v. International Sugar Feed No. 2 Co., 197 Ala.
100, 72 So. 368.
CORN RENT. A rent in wheat or malt paid on
college leases by direction of St. 18 Eliz. c. 6. 2
Bl.Comm. 609.
CORN WHISKY. An intoxicating whisky or liquor made from corn or containing a corn product,
otherwise known as "moonshine," "white mule,"
"hootch," "corn liquor," "moonshine corn whisky."
State v. Bilyeu, Mo.Sup., 295 S.W. 104, 105; State
v. Pinto, 312 Mo. 99, 279 S.W. 144, 148; Mullins v.
Commonwealth, 115 Va. 945, 79 S.E. 324, 327.
COROLLARY. In logic. A collateral or secondary consequence, deduction, or inference.
CORONA. The crown. Placita coronce; pleas of
the crown; criminal actions or proceedings, in
which the crown was the prosecutor.
CORNAGE. A species of tenure in England, by
which the tenant was bound to blow a horn for
the sake of alarming the country on the approach
of an enemy. It was a species of grand serjeanty.
Bac. Abr. "Tenure," N.
CORONA MALA. In old English law. The clergy
who abuse their character were so called. Blount.
CORONARE. In old records. To give the tonsure, which was done on the crown, or in the form
of a crown; to make a man a priest. Cowell.
CORNER. A combination among the dealers in
a specific commodity, or outside capitalists, for
the purpose of buying up the greater portion of
that commodity which is upon the market or may
be brought to market, and holding the same back
from sale, until the demand shall so far outrun
the limited supply as to advance the price abnormally. Kirkpatrick v. Bonsall, 72 Pa. 158;
Wright v. Cudahy, 168 Ill. 86, 48 N.E. 39; United
States v. Patten, C.C.N.Y., 187 F. 664, 668.
CORONARE FILIUM. To make one's son a
priest. Homo coronatus was one who had received the first tonsure, as preparatory to superior
orders, and the tonsure was in form of a corona,
or crown of thorns. Cowell.
A "corner" is a condition arising when a much greater
quantity of any given commodity is sold for future delivery within a given period than can be purchased in the
market. The buyers, who are called in the slang of the
exchanges, the "longs," then insist on delivery, and thus
succeed in running up the prices to a fictitious point, at
which the deals are "rung out" between the dealers oy the
payment of differences, or, where the buyers insist, by
actual delivery. Kent v. Miltenberger, 13 Mo.App. 503, 506.
Surveying. An angle made by two boundary lines;
the common end of two boundary lines, which run
at an angle with each other.
CORONATION OATH. The oath administered to
a sovereign at the ceremony of crowning or investing him with the insignia of royalty, in acknowledgment of his right to govern the kingdom, in which he swears to observe the laws, customs, and privileges of the kingdom, and to act
and do all things conformably thereto. Wharton.
CORONATOR. A coroner, (q. v.) Spelman.
Lost corner. One whose location as established
.by the government surveyors cannot be found.
The mere fact that evidence of the physical location cannot now be seen, or that no one who saw
the marked corner is produced, does not necessarily make the corner a lost one. Goroski v.
Tawney, 121 Minn. 189, 141 N.W. 102, 103; Cooper v. Quade, 191 Iowa, 461, 182 N.W. 798, 799;
Fehrman v. Bissell Lumber Co., 188 Wis. 82, 204
N.W. 582.
CORONATORE ELIGENDO. The name of a writ
issued to the sheriff, commanding him to proceed
to the election of a coroner.
One where no visible evidence
Obliterated corner.
remains of the work of the original surveyor in establishing it. Fellows v. Willett, 98 Okl. 248, 224 P. 298, 300;
Fehrman v. Bissell Lumber Co., 188 Wis. 82, 204 N.W. 582.
CORNET. A commissioned officer of cavalry,
abolished in England in 1871, and not existing in
the United States army.
CORODIO HABENDO. The name of a writ to
exact a corody of an abbey or religious house.
CORODIUM. In old English law. A corody.
CORONATION. It "is but a royal ornament and
solemnization of the royal descent, but no part
of the title." By the laws of England there can
be no interregnum; 7 Co.Rep. 10b.
CORONATORE EXONERANDO. In English law.
The name of a writ for the removal of a coroner,
for a cause which is to be therein assigned, as
that he is engaged in other business, or incapacitated by years or sickness, or has not a sufficient
estate in the county, or lives in an inconvenient
part of it.
CORONER. The name of an ancient officer of
the common law, whose office and functions are
continued in modern English and American administration. The coroner is an officer belonging
to each county, and is charged with duties both
judicial and ministerial, but chiefly the former.
It is his special province and duty to make inquiry
into the causes and circumstances of any death
happening within his territory which occurs
through violence or suddenly and with marks of
407
CORONER'S
suspicion. This examination (called the "coroner's
inquest") is held with a jury of proper persons
upon view of the dead body. See Bract. fol. 121;
1 Bl.Comm. 346-348; 3 Steph.Comm. 33. In England, another branch of his judicial office is to
inquire concerning shipwrecks, and certify whether wreck or not, and who is in possession of
the goods; and also to inquire concerning treasure trove, who were the finders, and where it is,
and whether any one be suspected of having found
and concealed a treasure. 1 Bl.Comm. 349. It belongs to the ministerial office of the coroner to
serve writs and other process, and generally to
discharge the duties of the sheriff, in case of the
incapacity of that officer or a vacancy in his office.
On the office and functions of coroners, see, further, Cox v. Royal Tribe, 42 Or. 365, 71 Pac. 73,
60 L.R.A. 620; Lancaster County v. Holyoke, 37
Neb. 328, 55 N.W. 950, 21 L.R.A. 394.
CORONER'S COURT. In England. A tribunal
of record, where a coroner holds his inquiries.
Cox v. Royal Tribe, 42 Or. 365, 71 P. 73, 60 L.R.A.
620.
CORONER'S INQUEST. An inquisition or examination into the causes and circumstances of any
death happening by violence or under suspicious
conditions within his territory, held by the coroner with the assistance of a jury. Boisliniere v.
County Com'rs, 32 Mo. 378; Ehlers v. Blood, 175
Misc. 72, 22 N.Y.S.2d 1001, 1005.
CORPORAL. Relating to the body; bodily.
Should be distinguished from corporeal (q. v.)
CORPORAL IMBECILITY. Physical inability to
perform completely the act of sexual intercourse;
not necessarily congenital, and not invariably a
permanent and incurable impotence. Griffeth v.
Griffeth, 162 Ill. 368, 44 N.E. 820.
CORPORAL OATH. An oath, the external solemnity of which consists in laying one's hand upon
the Gospels while the oath is administered to
him. More generally, a solemn oath. Jackson
v. State, 1 Ind. 185; State v. Norris, 9 N.H. 102;
Com. v. Jarboe, 89 Ky. 143, 12 S.W. 138.
The terms "corporal oath" and "solemn oath" are, in
Indiana, at least, used synonymously; and an oath taken
with the uplifted hand may be properly 'described by
either term.
CORPORAL PUNISHMENT. Physical punishment as distinguished from pecuniary punishment
or a fine; any kind of punishment of or inflicted
on the body, such as whipping or the pillory; the
term may or may not include imprisonment, according to the context. Ritchey v. People, 22 Colo.
251, 43 P. 1026; Fowler v. American Mail Line, C.
C.A.Cal., 69 F.2d 905, 907.
The use of rubber hose or other weapon to suppress a
threatened riot or to prevent prisoner from doing bodily
harm to an officer or another inmate is not corporal punishment. O'Brien v. Olson, 42 Cal.App.2d 449, 109 P.2d 8, 16.
CORPORAL TOUCH. Bodily touch; actual physical contact; manual apprehension.
CORPORALE SACRAMENTUM. In old English
law. A corporal oath.
CORPORALIS INJURIA NON RECIPIT ?ESTIMATIONEM DE FUTURO. A personal injury
does not receive satisfaction from a future course
of proceeding, [is not left for its satisfaction to a
future course of proceeding.] Bac. Max. reg. 6;
Broom, Max. 278.
CORPORATE. Belonging to a corporation; as a
corporate name. Incorporated; as a corporate
body.
CORPORATE ACT OR MINISTERIAL ACT OF
MUNICIPAL CORPORATION. For which it can
be held liable is act which is done by virtue of
powers exercised for municipality's own advantage or in negligent performance of duty specifically imposed by statute. Broome v. City of
Charlotte, 208 N.C. 729, 182 S.E. 325, 326.
CORPORATE ALTER EGO, DOCTRINE OF.
Means that courts ignoring forms and looking
to substance will regard stockholders as owners
of corporation's property, or as the real parties
in interest whenever it is necessary to do so to
prevent fraud which might otherwise be perpetrated, to redress a wrong which might otherwise
go without redress, or to do justice which might
otherwise fail. Geary v. Cain, 79 Utah 268, 9 P.
2d 396, 398.
CORPORATE AUTHORITIES. The title given in
statutes of several states to the aggregate body
of officers of a municipal corporation, or to certain of those officers (excluding the others) who
are vested with authority in regard to the particular matter spoken of in the statute, as, taxation, bonded debt, regulation of the sale of liquors,
etc. See People v. Knopf, 171 Ill. 191, 49 N.E. 424;
State v. Andrews, 11 Neb. 523, 10 N.W. 410; White
v. Papillion Drainage Dist., 96 Neb. 241, 147 N.W.
218, 219; Schaeffer v. Bonham, 95 Ill. 382.
CORPORATE BODY. This term, or its equivalent "body corporate," is applied to private corporations aggregate; not including municipal corporations. Cedar County v. Johnson, 50 Mo. 225;
East Oakland Tp. v. Skinner, 94 U.S. 256, 24 L.Ed.
125; County Board of Education for Houston
County v. Hunt, 29 Ga.App. 665, 116 S.E. 900.
CORPORATE BONDS. A written promise by a
corporation under seal to pay a fixed sum of
money at some future time named, with stated
interest payable at some fixed time or intervals,
given in return for money or its equivalent received by the corporation, sometimes secured, and
sometimes not. Hammond Lumber Co. v. Adams,
7 Ca1.2d 24, 59 P.2d 1030, 1031.
CORPORATE FRANCHISE. The right to exist
and do business as a corporation; the right or
privilege granted by the state or government to
the persons forming an aggregate private corporation, and their successors, to exist and do business as a corporation and to exercise the rights
and powers incidental to that form of organiza-
408
CORPORATION
tion or necessarily implied in the grant. Bank of
California v. San Francisco, 142 Cal. 276, 75 Pac.
832, 64 L.R.A. 918; State on inf. Wear v. Business
Men's Athletic Club, 178 Mo.App. 548, 163 S.W.
901, 907.
CORPORATE LEGAL INDIVIDUAL. Municipal
corporation possesses two kinds of power, governmental and public, and proprietary and private,
and in exercise of former, corporation is a "municipal government," while as to latter, it is a "corporate legal individual." Herkimer County v. Village of Herkimer, 251 App.Div. 126, 295 N.Y.S. 629,
633.
CORPORATE NAME. When a corporation is
erected, a name is always given to it, or, supposing none to be actually given, will attach to it by
implication, and by that name alone it must sue
and be sued, and do all legal acts, though a very
minute variation therein is not material, and the
name is capable of being changed (by competent
authority) without affecting the identity or capacity of the corporation. Wharton.
CORPORATE PURPOSE. In reference to municipal corporations, and especially to their powers
of taxation, a "corporate purpose" is one which
shall promote the general prosperity and the welfare of the municipality. Dickinson v. Salt Lake
City, 57 Utah 530, 195 P. 1110, 1111; City of Quitman v. Jelks & McLeod, 139 Ga. 238, 77 S.E. 76;
People ex rel. Moshier v. City of Springfield, 370
Ill. 541, 19 N.E.2d 598, 602; or a purpose necessary
or proper to carry into effect the object of the
creation of the corporate body, People v. School
Trustees, 78 Ill. 140; or one which is germane to
the general scope of the objects for which the
corporation was created or , has a legitimate connection with those objects and a manifest relation
thereto. Weightman v. Clark, 103 U.S. 256, 26 L.
Ed. 392; Denman v. City of Tacoma, 170 Wash.
406, 16 P.2d 596, 597.
CORPORATION. An artificial person or legal entity created by or under the authority of the laws
of a state or nation, composed, in some rare instances, of a single person and his successors,
being the incumbents of a particular office, but
ordinarily consisting of an association of numerous individuals, who subsist as a body politic under a special denomination, which is regarded in
law as having a personality and existence distinct
from that of its several members, and which is,
by the same authority, vested with the capacity of
continuous succession, irrespective of changes in
its membership, either in perpetuity or for a limited term of years, and of acting as a unit or single
individual in matters relating to the common purpose of the association, within the scope of the
powers and authorities conferred upon such bodies
by law. Dartmouth College v. Woodward, 4
Wheat. 518, 636, 657, 4 L.Ed. 629; U. S. v. Trinidad
Coal Co., 137 U.S. 160, 11 S.Ct. 57, 34 L.Ed. 640;
Andrews Bros. Co. v. Youngstown Coke Co., 86 F.
585, 30 C.C.A. 293; Porter v. Railroad Co., 76 Ill.
573; Nebraska Wheat Growers' Ass'n v. Smith,
115 Neb. 177, 212 N.W. 39, 44; State v. Thistle
Down Jockey Club, 114 Ohio St. 582, 151 N.E. 709,
711; Congdon v. Congdon, 160 Minn. 343, 200 N.W.
76, 87; Forest City Mfg. Co. v. International Ladies' Garment Workers' Union, Local No. 104, 233
Mo.App. 935, 111 S.W.2d 934; In re Crown Heights
Hospital, 183 Misc. 563, 49 N.Y.S.2d 658, 660; Froelich and Kuttner, of Manila, P. I., V. Sutherland,
57 App.D.C. 294, 22 F.2d 870, 872.
A franchise possessed by one or more individuals, who subsist as a body politic, under a special
denomination, and are vested by the policy of the
law with the capacity of perpetual succession, and
of acting in several respects, however numerous
the association may be, as a single individual. 2
Kent, Comm. 267.
An artificial person or being, endowed by law with the
capacity of perpetual succession; consisting either of a
single individual, (termed a "corporation sole,") or of a
collection of several individuals, (which is termed a "corporation aggregate.") 3 Steph.Comm. 166; 1 Bl.Comm.
467, 469. An intellectual body, created by law, composed
of individuals united under a common name, the members
of which succeed each other, so that the body continues
always the same, notwithstanding the change of the individuals who compose it, and which, for certain purposes,
is considered a natural person. Civil Code La. art. 427.
A "corporation" is more nearly a method than a thing,
and the law, in dealing with a corporation, need not define
it as a person or entity, or even as an embodiment of functions, rights, and duties. Farmers' Loan & Trust Co. v.
Pierson, 222 N.Y.S. 532, 543, 130 Misc. 110.
The statement that a "corporation" is an artificial person or entity, apart from its members, is merely a description, in figurative language, of a corporation viewed as a
collective body. McIntosh v. Dakota Trust Co., 52 N.D.
752, 204 N.W. 818, 825, 40 A.L.R. 1021.
A corporation is a collection of natural persons, joined
together by their voluntary action or by legal compulsion,
by or under the authority of an act of the Legislature,
consisting either of a special charter or of a general permissive statute, to accomplish some purpose, pecuniary,
ideal, or governmental, authorized by the charter or governing statute. State v. Knights of Ku Klux Klan, 117
Kan. 564, 232 P. 254, 257, 37 A.L.R. 1267.
Classification
According to the accepted definitions and rules,
corporations are classified as follows:
Public and private. A public corporation is one
created by the state for political purposes and to
act as an agency in the administration of civil
government, generally within a particular territory or subdivision of the state, and usually invested, for that purpose, with subordinate and local powers of legislation; such as a county, city,
town, or school district. These are also sometimes called "political corporations." Goodwin v.
East Hartford, 70 Conn. 18, 38 A. 876; Dean v.
Davis, 51 Cal. 409; Ten Eyck v. Canal Co., 18 N.J.
Law, 200, 37 Am.Dec. 233; Murphy v. Mercer
County, 57 N.J.Law, 245, 31 A. 229; Van Campen
v. Olean General Hospital, 210 App.Div. 204, 205
N.Y.S. 554, 555; Providence Engineering Corporation v. Downey Snipbuilding Corporation, C.C.A.
N.Y., 294 F. 641, 646; National Bank of Commerce
in New Orleans v. Board of Sup'rs of La. State
University and Agricultural and Mechanical Corlege, 206 La. 913, 20 So.2d 264, 269.
Private corporations are those founded by and
composed of private individuals, for private pur
409
CORPORATION
poses, as distinguished from governmental purposes, and having no political or governmental
franchises or duties. Santa Clara County v.
Southern Pac. R. Co., C.C.Cal., 18 F. 385, 402;
People v. McAdams, 82 Ill. 361; Providence Engineering Corporation v. Downey Shipbuilding
Corporation, C.C.A.N.Y., 294 F. 641, 648.
for purposes falling under the description of
"charitable" in its widest sense, including hospitals, asylums, and colleges; the latter being organized for the facilitating of business transactions and the profit or advantage of the members.
1 Bl.Comm. 471; Dartmouth College v. Woodward,
4 Wheat. 660, 4 L.Ed. 629.
The true distinction between public and private corporations is that the former are organized for governmental purposes, the latter not. The term "public" has
sometimes been applied to corporations of which the government owned the entire stock, as in the case of a state
bank. But bearing in mind that "public" is here equivalent to "political," IA will be apparent that this is a misnomer. Again the fact that the business or operations of
a corporation may directly and very extensively affect the
general public (as in the case of a railroad company or a
bank or an insurance company) is no reason for calling it
a public corporation. If organized by private persons for
their own advantage,—or even if organized for the benefit
of the public generally, as in the case of a free public
hospital or other charitable institution,--it is none the
less a private corporation, if it does not possess governmental powers or functions. The uses may in a sense be
called "public," but the corporation is "private," as much
so as if the franchises were vested in a single person.
Dartmouth College v. Woodward, 4 Wheat. 562, 4 L.Ed.
629; Ten Eyok v. Canal Co., 18 N.J.Law, 204, 37 Am.Dec.
233. It is to be observed, however, that those corporations
which serve the public or contribute to the comfort and
convenience of the general public, though owned and managed by private interests, are now (and quite appropriately) denominated "public-service corporations." See
infra. Another distinction between public and private corporations is that the former are not voluntary associations
(as the latter are) and that there is no contractual relation between the government and a public corporation or
between the individuals who compose it. Mor.Priv.Corp. §
3; Goodwin v. East Hartford, 70 Conn. 18, 38 A. 876.
The terms "public" and "municipal," as applied to corporations, are not convertible. All municipal corporations
are public, but not vice versa. Brown v. Board of Education, 108 Ky. 783, 57 S.W. 612. But there may also be
"public" corporations which are not "municipal" even in
this wider sense of the latter term. Such, according to
some of the authorities, are the "irrigation districts" now
known in several of the western states. Irrigation Dist. v.
Collins, 46 Neb. 411, 64 N.W. 1086. Compare Herring v.
Modesta Irrigation Dist., C.C.Cal., 95 F. 705.
In the law of Louisiana, the term "civil" as applied to
corporations, is used in a different sense, being contrasted
with "religious." Civil corporations are those which relate
to temporal police; such are the corporations of the cities,
the companies for the advancement of commerce and agriculture, literary societies, colleges or universities founded
for the instruction of youth, and the like. Religious corporations are those whose establishment relates only to
religion; such are the congregations of the different religious persuasions. Civ.Code La. art. 431.
Ecclesiastical and lay. In the English law, all
corporations private are divided into ecclesiastical and lay, the former being such corporations
as are composed exclusively of ecclesiastics organized for spiritual purposes, or for administering property held for religious uses, such as bishops and certain other dignitaries of the church
and (formerly) abbeys and monasteries. 1 Bl.
Comm. 470. Lay corporations are those composed
of laymen, and existing for secular or business
purposes. This distinction is not recognized in.
American law. Corporations formed for the purpose of maintaining or propagating religion or of
supporting public religious services, according to
the rites of particular denominations, and incidentally owning and administering real and personal property for religious uses, are called "religious corporations," as distinguished from business corporations; but they are "lay" corporations, and not "ecclesiastical" in the sense of the
English law. Robertson v. Bullions, 11 N.Y. 243.
Eleemosynary and civil. Lay corporations are
classified as "eleemosynary" and "civil;" the former being such as are created for the distribution
of alms or for the administration of charities or
Aggregate and sole. A corporation sole is one
consisting of one person only, and his successors
in some ,particular station, who are incorporated
bylaw in order to . give them some legal capacities and advantages, particularly that of perpetuity, which . in their natural persons they could
not have had. In this sense, the sovereign in England is a sole corporation, so is a bishop, so are
some deans distinct from their several chapters,
and so is every parson and vicar. 3 Steph.Comm.
168, 169; First Parish v. Dunning, 7 Mass. 447;
Reid v. Barry, 93 Fla. 849, 112 So. 846, 859.
A corporation aggregate is one composed of a
number of individuals vested with corporate powers; and a "corporation," as the word is used in
general popular and legal speech, and as defined
at the head of this title, means a "corporation
aggregate."
Domestic and foreign. With reference to the
laws and the courts of any given state, a "domestic" corporation is one created by, or organized under, the laws of that state; a "foreign" corporation is one created by or under the laws of another state, government, or country. In re Grand
Lodge, 110 Pa. 613, 1 A. 582; Fowler v. Chillingworth, 94 Fla. 1, 113 So. 667, 669; In re Ewles'
Estate, 105 Utah 507, 143 P.2d 903, 905.
Close and open. A "close" corporation is one in
which the directors and officers have the power to
fill vacancies in their own number, without allowing to the general body of stockholders any choice
or vote in their election. An "open" corporation is
one in which all the members or corporators have
a vote in the election of the directors and other
officers. McKim v. Odom, 3 Bland, Md., 416.
A close corporation is one which fills its own vacancies or
in which power of voting is held through manipulation
under fixed and virtually perpetual proxies. Brooks v.
Willcuts, C.C.A.Minn., 78 F.2d 270, 273.
Subsidiary and parent. Subsidiary corporation
is one in which another corporation (called parent 'corporation) owns at least a majority of the
shares, and thus has control. Wheeler v. New
York, N. H. and H. R. Co., 112 Conn. 510, 153 A.
159, 160; International Order of Twelve Knights
and Daughters of Tabor v. Fridia, Tex.Civ.App.,
91 S.W.2d 404.
410
CORPORATION
but in a wider sense the term is applied to all business corporations having a money capital and employing it in the conduct of their business. Mutual Ins. Co. v. Erie County, 4 N.Y. 444; In re
California Pac. R. Co., 4 Fed.Cas. 1,060; Hobbs v.
National Bank, C.C.A.N.Y., 101 F. 75, 41 C.C.A.
205.
Other Compound and Descriptive Terms
A business corporation. One formed for the
purpose of transacting business in the widest
sense of that term, including not only trade and
commerce, but manufacturing, mining, banking,
insurance, transportation, and practically every
form of commercial or industrial activity where
the purpose of the organization is pecuniary profit; contrasted with religious, charitable, educational, and other like organizations, which are
sometimes grouped in the statutory law of a state
under the general designation of "corporations not
for profit." Winter v. Railroad Co., 30 Fed.Cas.
329; McLeod v. College, 69 Neb. 550, 96 N.W. 265.
Municipal corporations. See that title.
Corporation de facto. One existing under color
of law and in pursuance of an effort made in good
faith to organize a corporation under the statute;
an association of men claiming to be a legally incorporated company, and exercising the powers
and functions of a corporation, but without actual
lawful authority to do so. Foster v. Hare, 26 Tex.
Civ.App. 177, 62 S.W. 541; Cedar Rapids Water
Co. v. Cedar Rapids, 118 Iowa, 234, 91 N.W. 1081;
Tulare Irrig. Dist. v. Shepard, 185 U.S. 1, 22 S.Ct.
531, 46 L.Ed. 773; Evens v. Anderson, 132 Minn.
59, 155 N.W. 1040, 1041.
Its elements are a law or charter authorizing such a
corporation, an attempt in good faith to comply with law
authorizing its incorporation, and unintentional omission
of essential requirements of the law or charter, and exercise in good faith of corporate functions under the law or
charter. Richmond v. Town of Largo, 155 Fla. 226, 19
So.2d 791, 793.
Corporation de jure. That which exists by reason of full compliance by incorporators with requirements of an existing law permitting organization of such corporation; it is impregnable to assault in the courts from any source. Henderson
v. School Dist. No. 44, 75 Mont. 154, 242 P. 979, 980.
Joint-stock corporation. This differs from a
joint-stock company in being regularly incorporated, instead of being a mere partnership, but resembles it in having a capital divided into shares
of stock. Most business corporations (as distinguished from eleemosynary corporations) are of
this character.
A "joint-stock corporation" is one organized under a
general statute authorizing the creation of such corporations and providing the procedure for creating it, and is
distinguished from a "corporation" created by special
resolution or act of the Legislature, which resolution or
act is the charter of the corporation, when accepted, and
the corporation organized thereunder, and the corporation
is a chartered corporation, as distinguished from a jointstock corporation. Barber v. Morgan, 89 Conn. 583, 94 A.
984, 986, Ann.Cas.1916E, 102.
Migratory corporation. A corporation, organized under laws of another state than that of incorporators' residence for purpose of doing all or
greater part of their business in state of their
residence or in other state than that of incorporation. Toklan Royalty Corporation v. Tiffany, 193
Oki. 120, 141 P.2d 571, 573.
Moneyed corporations are, properly speaking,
those dealing in money or in the business of receiving deposits, loaning money, and exchange;
Public-service corporations. Those whose operations serve the needs of the general public or
conduce to the comfort and convenience of an entire community, such as railroads, gas, water, and
electric light companies. The business of such
companies is said to be "affected with a public
interest," and for that reason they are subject to
legislative regulation and control to a greater extent than corporations not of this character.
Washington & C. Ry. Co. v. Mobile & 0. R. Co.,
C.C.A.Ala., 255 F. 12, 14.
Quasi corporations. Organizations resembling
corporations; municipal societies or similar
bodies which, though not true corporations in all
respects, are yet recognized, by statutes or immemorial usage, as persons or aggregate corporations, with precise duties which may be enforced,
and privileges which may be maintained, by suits
at law. They may be considered quasi corporations, with limited powers, co-extensive with
the duties imposed upon them by statute or
usage, but restrained from a general use of the
authority which belongs to those metaphysical
persons by the common law. Scates v. King, 110
Ill. 456; Barnes v. District of Columbia, 91 U.S.
552, 23 L.Ed. 440.
This term is lacking in definiteness and precision. It
appears to be applied indiscriminately (a) to all kinds of
municipal corporations, the word "quasi" being introduced
because it is said that these are not voluntary organizations like private corporations, but created by the legislature for its own purposes and without reference to the
wishes of the people of the territory affected; (b) to all
municipal corporations except cities and incorporated
towns, the latter being considered the only true municipal
corporations because they exist and act under charters or
statutes of incorporation while counties, school districts,
and the like are merely created or set off under general
laws; (c) to municipal corporations possessing only a low
order of corporate existence or the most limited range of
corporate powers, such as hundreds in England, and counties, villages, and school districts in America.
A term applied to those bodies, or municipal societies,
which, though not vested with the general powers of corporations, are yet recognized, by statutes or immemorial
usage, as persons, or aggregate corporations, with precise
duties, which may be enforced, and privileges, which may
be maintained, by suits at law. State v. Hagen, 136 La.
868, 67 So. 935, 936.
There is a well-defined and marked distinction between
municipal corporations proper and political or quasi corporations. Cities, towns, and villages are municipal corporations proper, while counties, townships, school districts, road districts, and the like are quasi corporations.
City of East Cleveland v. Board of Education of City
School Dist. of East Cleveland, 112 Ohio St. 607, 148 N.E.
350, 351.
"Quasi corporation" is a phrase used to designate bodies
which possess a limited number of corporate powers, and
which are low down in the scale or grade of corporate
existence, and is generally applied to a body which exercises certain functions of a corporate character, but which
has not been created a corporation by any statute, general
or special. Eakle v. Board of Education of Independent
School Dist. of Henry, 97 W.Va. 434, 125 S.E. 165, 167.
411
CORPORATION
Quasi public corporation. This term Is sometimes applied to corporations which are not strictly public, in the sense of being organized for governniental purposes, but whose operations contribute to the comfort, convenience, or welfare of
the general public, such as telegraph and telephone companies, gas, water, and electric light
companies, and irrigation companies. More commonly and more correctly styled "public-service
corporations." Wiemer v. Louisville Water Co.,
C.C.Ky., 130 F. 251; Campbell v. Watson, 62 N.J.
Eq. 396, 50 A. 120; Burgess v. City of Brockton,
235 Mass. 95, 126 N.E. 456, 460; Van Valkenburgh
v. Ford, Tex.Civ.App., 207 S.W. 405, 414; Borough
of Mt. Union v. Kunz, 290 Pa. 356, 139 A. 118, 121.
There is a large class of private corporations which on
account of special franchises conferred on them owe a duty
to the public which they may be compelled to perform.
This class of corporations is known as public service corporations, and in legal phraseology as "quasi public corporations," or corporations affected with a public interest.
A "quasi public corporation" may be said to be a private
corporation which has given to it certain powers of a public nature, such, for instance, as the power of eminent
domain, in order to enable it to discharge its duties for
the public benefit, in which respect it differs from an
ordinary private corporation, the powers of which are given
and exercised for the exclusive advantage of its stockholders. State ex rel.. Coco v. Riverside Irr. Co., 142 La. 10, 76
So. 216, 218.
The term is also applied to corporations of that class
sometimes called "quasi municipal corporations," such as
school districts; Courtright v. Consolidated Independent
School Dist. of Mapleton, 203 Iowa, 26, 212 N.W. 368. 369;
road districts; Road Improvement Dist. No. 7 of Poinsett
County, Ark., v. Guardian Savings & Trust Co., C.C.A.
Ark., 298 F. 272, 274; Taylor Coal Co. v. Board of Drainage Com'rs of Ohio County, 189 Ky. 793, 225 S. W. 368, 369;
irrigation districts; Bonneville Irr. Dist. v. Ririe, 57 Utah,
306, 195 P. 204, 205; and counties, townships, etc. Forbes
Pioneer Boat Line v. Board of Com'rs of Everglades Drainage Dist., 77 Fla. 742, 82 So. 346, 350.
Spiritual corporations. Corporations, the members of which are entirely spiritual persons, and
incorporated as such, for the furtherance of religion and perpetuating the rights of the church.
Trading corporations. A commercial corporation engaged in buying and selling. The word
"trading," is much narrower in scope than "business," as applied to corporations, and though a
trading corporation is a business corporation,
there are many business corporations which are
not trading companies. Dartmouth College v.
Woodward, 4 Wheat. 669, 4 L.Ed. 629; Adams v.
Railroad Co., 1 Fed.Cas. 92.
Tramp corporations. Companies chartered in
one state without any intention of doing business
therein, but which carry on their business and operations wholly in other states. State v. Georgia
Co., 112 N.C. 34, 17 S.E. 10, 19 L.R.A. 485.
Synonyms
The words "company" and "corporation" are
commonly used as interchangeable terms. In
strictness, however, a company is an association
of persons for business or other purposes, embracing a considerable number of individuals,
which may or may not be incorporated. In the
former case, it is legally a partnership or a jointstock company; in the latter case, it is properly
called a "corporation." Goddard v. Railroad Co.,
202 Ill. 362, 66 N.E. 1066. For the particulars in
which corporations differ from "Joint-Stock Companies" and "Partnerships," see those titles.
CORPORATION ACT. In English law. The statute 13 Car. II. St. 2, c. 1; by which it was provided that no person should thereafter be elected
to office in any corporate town that should not,
within one year previously, have taken the sacrament of the Lord's Supper, according to the rites
of the Church of England; and every person so
elected was also required to take the oaths of allegiance and supremacy. 3 Steph.Comm. 103, 104;
4 Bl.Comm. 58. This statute is now repealed. 4
Steph.Comm. 511.
CORPORATION COURTS. Certain courts in Virginia described as follows: "For each city of the
state, there shall be a court called a 'corporation
court,' to be held by a judge, with like qualifications and elected in the same manner as judges of
the county court." Code Va.1887, § 3050, Code
1919, § 5905.
CORPORATOR.
A member of a corporation aggregate. Grant, Corp. 48; Seaborn v. Wingfield,
56 Nev. 260, 48 P.2d 881, 883.
CORPORE ET ANIMO.
Lat. By the body and
by the mind; by the physical act and by the mental intent. Dig. 41, 2, 3.
CORPOREAL.
A term descriptive of such things
as have an objective, material existence; perceptible by the senses of sight and touch; possessing a
real body. Opposed to incorporeal and spiritual.
Sullivan v. Richardson, 33 Fla. 1, 14 So. 692; Bourland v. State, 133 Tex.Cr.R. 544, 112 S.W.2d 720,
721.
There is a distinction between "corporeal" and "corporal." The former term means "possessing a body," that
is, tangible, physical, material; the latter means "relating
to or affecting a body," that is, bodily, external. Corporeal denotes the nature or physical existence of a body;
corporal denotes its exterior or the co-ordination of it with
some other body. Hence we speak of "corporeal hereditaments," but of "corporal punishment," "corporal touch,"
"corporal oath," etc.
CORPOREAL HEREDITAMENTS.
See Heredita-
ments.
CORPOREAL PROPERTY. Such as affects the
senses, and may be seen and handled, as opposed
to incorporeal property, which cannot be seen or
handled, and exists only in contempl ation. Mozley & Whitley.
Thus a house is corporeal, but the annual rent payable
for its occupation is incorporeal. Corporeal property is, if
movable, capable of manual transfer ; if immovable, possession of it may be delivered up. But incorporeal property cannot be so transferred, but some other means must
be adopted for its transfer, of which the most usual is an
instrument in writing.
In Roman law, the distinction between things corporeal
and incorporeal rested on the sense of touch; tangible
objects only were considered corporeal. In modern law,
all things which may be perceived by any of the bodily
senses are termed corporeal, although a common definition
• of the word includes merely that which can be touched
and seen. 14a C.J. 1424 (citing Abbott's Diet.). Marnett
Oil & Gas Co. v. Munsey, Tex.Civ.App., 232 S.W. 867, 869;
Sullivan v. Richardson, 33 Fla. 1, 116, 14 So. 692.
412
CORRECTOR
The term "property," however, is a generic term of
extensive application. 32 Cyc. 647. In its strict legal
sense, "property" is nothing but the right of dominion,
possession, and disposition which may be acquired over
physical things. Braceville Coal , Co. v. People, 147 Ill. 66,
35 N.E. 62, 22 L.R.A. 340; Fears v. State, 102 Ga. 274, 29
S.E. 463; De Lauder v. Baltimore County, 94 Md. 1, 50 A.
427. It follows that from that point of view, there is no
such thing as "tangible" property or "corporeal" property,
and the only meaning which can in law he given to the
expression "corporeal property" is the right to possess,
use, occupy, and enjoy corporeal things and take the profits
thereof. Transcontinental Oil Co. v. Emmerson, 298 Ill.
394, 131 N.E. 645, 648, 16 A.L.R. 507.
CORPS DIPLOMATIQUE. In international law.
Ambassadors and diplomatic persons at any court
or capital.
CORPSE. The dead body of a human being. 1
Russ. & R. 366, n.; 2 Term 733; 1 Leach 497;
Com. v. Loring, 8 Pick., Mass., 370; Dig. 47. 12.
3. 7; 11. 7. 38; Code, 3. 44. 1; Co. 3d Inst. 203; 1
Russ.Cr. 629.
CORPUS. (Lat.) Body; an aggregate or mass,
(of men, laws, or articles; ) physical substance, as
distinguished from ihtellectual conception; the
principal sum or capital, as distinguished from interest or income. In re Barron's Will, 163 Wis. 275,
155 N.W. 1087, 1089; United States Trust Co. of
New York v. Heye, 181 App.Div. 544, 168 N.Y.S.
1051, 1057; Macy v. Ladd, 128 Misc. 732, 219 N.Y.S.
449, 460; In re Schley, 181 , App.Div. 931, 173 N.Y.S.
317, 319.
A substantial or positive fact, as distinguished
from what is equivocal and ambiguous. The corpus delicti (body of an offense) is the fact of its
having been actually committed. Best, Pres. 269279.
A corporeal act of any kind, (as distinguished
from animus or mere intention,) on the part of
him who wishes to acquire a thing, whereby he
obtains the physical ability to exercise his power
over it whenever he pleases. The word occurs
frequently in this sense in the civil law. Mackeld.
Rom.Law, § 248.
Corpus comitatus. The body of a county. The
whole county, as distinguished from a part of it,
or any particular place in it. U. S. v. Grush, 5
Mason, 290, Fed.Cas.No.15,268.
Corpus corporatum. A corporation; a corporate
body, other than municipal.
Corpus cum causa. (The body with the cause.)
An English writ which issued out of chancery, to
remove both the body and the record, touching
the cause of any man lying in execution upon a
judgment for debt, into the king's bench, there to
remain until he satisfied the judgment. Cowell;
Blount.
Corpus delicti. The body of a crime. The body
( material substance) upon which a crime has been
committed, e. g., the corpse of a murdered man,
the charred remains of a house burned down. In
a derivative sense, the substance or foundation of
a crime; the substantial fact that a crime has
been committed. People v. Dick, 37 Cal. 281;
White v. State, 49 Ala. 347; Goldman v, Com.,
100 Va. 865, 42 S.E. 923; State v. Schyhart, Mo.
Sup., 199 S.W. 205, 211; State v. Brown, 103 S.C.
437, 88 S.E. 21, 22, L.R.A.1916D, 1295; State v.
Johnson, 95 Utah 572, 83 P.2d 1010, 1014. When
applied to any particular offense, the actual commission by some one of particular offense charged.
Gorum v. State, 60 Okl.Cr. 248, 63 P.2d 765, 766.
Corpus pro corpore. In old records. Body for
body. A phrase expressing the liability of manucaptors. 3 How.State Tr. 110.
CORPUS CHRISTI DAY. In English law. A
feast instituted in 1264, in honor of the sacrament.
32 Hen. VIII. c. 21.
CORPUS HUMANUM NON RECIPIT IESTIMATIONEM. The human body does not admit of
valuation. Hob. 59.
CORPUS JURIS. A body of law. A term used to
signify a book comprehending several collections
of law. There are two principal collections to
which this name is given; the Corpus Juris Civilis,
and the Corpus Juris Canonici. Also name of an
encyclopaedic statement of the principles of AngloAmerican law.
Corpus juris canonici. The body of the canon
law. A compilation of the canon law, comprising
the decrees and canons of the Roman Church, constituting the body of ecclesiastical law of that
church.
Corpus juris civilis. The body of the civil law.
The system of Roman jurisprudence compiled and
codified under the direction of the emperor Justinian, in A.D. 528-534. This collection comprises
the Institutes, Digest, (or Pandects,) Code, and
Novels. The name is said to have been first applied to this collection early in the seventeenth
century.
CORRECT ATTEST. These words, used before
the signatures of bank directors to reports made
to the commissioner of banking, mean not alone
to bear witness, but to affirm to be true or genuine, and such words are appropriately used for the
affirmation of persons in their official capacity to
attest the truth of a writing. Eland State Bank v.
Massachusetts Bonding & Ins. Co., .165 Wis. 493,
162 N.W. 662, 663.
CORRECTED POLICY. Policy issued after investigation of risk to correct misstatements in policy
first issued. Sherri v. National Surety Co., of New
York, 243 N.Y. 266, 153 N.E. 70, 71.
CORRECTION. Discipline; chastisement administered by a master or other person in authority to
one who has committed an offense, for the purpose of curing his faults or bringing him into proper subjection.
CORRECTION, HOUSE OF. A prison for the reformation of petty or juvenile offenders.
CORRECTOR OF THE STAPLE. In old English
law. A clerk belonging to the staple, to write
and record the bargains of merchants there made.
413
CORREGIDOR
CORREGIDOR. In Spanish law. A magistrate
who took cognizance of various misdemeanors,
and of civil matters. 2 White, New Recop. 53.
CORREI. Lat. In the civil law. Co-stipulators;
joint stipulators.
CORREI CREDENDI. In the civil and Scotch
law. Joint creditors; creditors in solido. Poth.
Obl. pt. 2, c. 4, art. 3, § 11.
CORREI DEBENDI. In Scotch law. Two or more
persons bound as principal debtors to another.
Ersk.Inst. 3, 3, 74.
CORRELATIVE. Having a mutual or reciprocal
relation, in such sense that the existence of one
necessarily implies the existence of the other.
Father and son are correlative terms. Claim
and duty are correlative terms.
CORRESPONDENCE. Interchange of written
communications. The letters written by a person
and the answers written by the one to whom they
are addressed.
CORROBORATE. To strengthen; to add weight
or credibility to a thing by additional and confirming facts or evidence. Lassiteo v. Seaboard
Air Line Ry. Co., 171 N.C. 283, 88 S.E. 335, 337;
Bradley v. State, 19 Ala.App. 578, 99 So. 321, 322;
Holmes v. State, 70 Tex.Cr.R. 423, 157 S.W. 487,
493; State v. Fullerton Lumber Co., 35 S.D. 410,
152 N.W. 708, 715; Kincaid v. State, 131 Tex.Cr.
R. 101, 97 S.W.2d 175, 177.
2d 423, 425, which only requires intent to receive
more than the law permits for forbearance of
money, but does not require that taker knows that
he is violating usury law.
CORRUPT PRACTICES ACT. The Act of June
25, 1910, c. 392, 36 Stat. 822, which, like the English act of 1883 and supplements, dealt with "corrupt and illegal practices" in connection with
elections, and which was repealed by the "Federal
Corrupt Practices Act" of Feb. 28, 1925, c. 368,
Title III, 2 U.S.C.A. § 241 et seq.
CORRUPTIO OPTIMI EST PESSIMA. Corruption of the best is worst. Jacobs v. Beecham, 221
U.S. 263, 31 S.Ct. 555, 55 L.Ed. 729.
CORRUPTION. Illegality; a vicious and fraudulent intention to evade the prohibitions of the
law; something against or forbidden by law;
moral turpitude or exactly opposite of honesty
involving intentional disregard of law from improper motives. State v. Barnett, 60 Okl.Cr. 355,
69 P.2d 77, 87.
An act done with an intent to give some advantage inconsistent with official duty and the rights
of others. Johnson v. U. S., C.C.A.Alaska, 260 F.
783, 786.
The act of an official or fiduciary person who unlawfully
and wrongfully uses his station or character to procure
some benefit for himself or for another person, contrary to
duty and the rights of others. U. S. v. Johnson, C.C.Ga.,
26 F. 682; Worsham v. Murchison, 66 Ga. 719; U. S. v.
Edwards, C.C.Ala., 43 F. 67.
The expression "corroborating circumstances" clearly
does not mean facts which, independent of a confession,
will warrant a conviction; for then the verdict would
stand not on the confession, but upon those independent
circumstances. To corroborate is to strengthen, to confirmby additional security, to add strength. The testimony of
a witness is said to be corroborated when it is shown to
correspond with the representation of some other witness,
or to comport with some facts otherwise known or established. Corroborating circumstances, then, used in reference to a confession, are such as serve to strengthen it, to
render it more probable; such, in short, as may serve to
i mpress a jury with a belief in its truth. State v. Guild,
10 N.J.Law, 163, 18 Am. Dec. 404.
CORRUPTION OF BLOOD. In English law.
The consequence of attainder, being that the attainted person could neither inherit lands or other
hereditaments from his ancestor, nor retain those
he already had, nor transmit them by descent to
any heir, because his blood was considered in law
to be corrupted. Avery v. Everett, 110 N.Y. 317, 18
N.E. 148, 1 L.R.A. 264; 1 Steph.Comm. 446. This
was abolished by St. 3 & 4 Wm. IV. c. 106, and
33 & 34 Vict. c. 23, and is unknown in America.
Const.U.S. art. 3, § 3.
CORROBORATING EVIDENCE. Evidence supplementary to that already given and tending to
strengthen or confirm it; additional evidence of
a different character to the same point. In re
Cardoner's Estate, 27 N.M. 105, 196 P. 327, 328;
State v. Smith, 75 Mont. 22, 241 P. 522, 523; People
v. Follette, 74 Cal.App. 178, 240 P. 502, 519; Radcliffe v. Chavez, 15 N.M. 258, 110 P. 699, 701.
CORRUPTLY. When used in a statute, this term
generally imports a wrongful design to acquire
some pecuniary or other advantage. Grebe v.
State, 112 Neb. 715, 201 N.W. 143, 144; Bosselman
v. U. S., C.C.A.N.Y., 239 F. 82, 86; State v. Shipman, 202 N.C. 518, 163 S.E. 657.
CORROBORATIVE EVIDENCE. See Corroborating Evidence.
CORRUPT. Spoiled; tainted; vitiated; depraved; debased. Webster.
CORRUPT INTENT. A "corrupt intent," as an
element of usury, consists in the charging or receiving of excessive interest with knowledge that
it is prohibited by law and the purpose to violate
the law. Ector v. Osborne, 179 N.C. 667, 103 S.E.
388, 389, 13 A.L.R. 1207; Teshner v. Roome, 106
Or. 382, 212 P. 473, 474. But see Dege v. Produce
Exchange Bank of St. Paul, 212 Minn. 44, 2 N.W.
CORSELET. Ancient armor which covered the
body.
CORSE-PRESENT. In old English law. A mortuary, thus termed because, when a mortuary
became due on the death of a man, the best or
second-best beast was, according to custom, offered
or presented to the priest, and carried with the
co:pse. In Wales a corse-present was due upon
the death of a clergyman to the bishop of the diocese, till abolished by 12 Anne St. 2, c. 6. 2 Bl.
Comm. 426; Stat. 21 Hen. VIII. cap. 6; Cowell.
CORSNED. In Saxon law. The morsel of execration. A species of ordeal in use among the Saxons, performed by eating a piece of bread over
414
COSTS
which the priest had pronounced a certain imprecation. If the accused ate it freely, he was pronounced innocent; but, if it stuck in his throat,
it was considered as a proof of his guilt. Crabb,
Eng.Law, 30; 1 Reeve, Eng.Law, 21; 4 Bl.Comm.
345; Spelman, Gloss. 439.
CORTES. The name of the legislative assemblies,
the parliament or congress, of Spain and Portugal.
CORTEX. The bark of a tree; the outer covering
of anything.
CORTIS. A court or yard before a house. Blount.
CORTULARIUM, or CORTARIUM. In old records. A yard adjoining a country farm.
CORVEE. In French law. Gratuitous labor exacted from the villages or communities, especially
for repairing roads, constructing bridges, etc.
State v. Covington, 125 N.C. 641, 34 S.E. 272.
CORVEE SEIGNEURIALE. Services due the lord
of the manor. Guyot, 1Up.Univ., 3 Low.C. 1.
COSA JUZGADA, In Spanish law. A cause or
matter adjudged, (res judicata.)
White, New
Recop. b. 3, tit. 8, note.
COSAS COMUNES. In Spanish law. A term corresponding to the res communes of the Roman
law, and descriptive of such things as are open
to the equal and common enjoyment of all persons and not to be reduced to private ownership,
such as the air, the sea, and the water of running
streams. Hall, Mex.Law, 447; Lux v. Haggin,
69 Cal. 255, 10 P. 707.
COSBERING. See Coshering.
COSDUNA. In feudal law. A custom or tribute.
preternatural world;— applied to methods of healing. Commonwealth v. Zimmerman, 221 Mass.
184, 108 N.E. 893, 895, Ann.Cas.1916A, 858.
COSMUS. Clean. Blount.
COSS. A term used by Europeans in India to denote a road-measure of about two miles, but differing in different parts. Wharton.
COST. Expense. Barton v. Bowlin, 111 Ark. 123,
163 S.W. 502, 504. The price paid, as for an article purchased for exportation, with all incidental
charges paid at the place of exportation. Goodwin
v. U. S., 2 Wash.C.C. 493, Fed.Cas.No.5,554. The
amount originally expended in performing a particular act or operation, or for production or construction, as of a building. Kempf v. Ranger, 132
Minn. 64, 155 N.W. 1059, 1060; Hoggson Bros. v.
Spiekerman, 161 N.Y.S. 930, 933, 175 App.Div. 144.
Cost is sometimes used as equivalent to "value."
Loughney v. Klein, C.C.A.Pa., 221 F. 197, 199.
Cost-book. In English law. A book in which
a number of adventurers who have obtained permission to work a lode, and have agreed to share
the enterprise in certain proportions, enter the
agreement, and from time to time the receipts and
expenditures of the mine, the names of the shareholders, their respective accounts with the mine,
and transfers of shares. These associations are
called "Cost-Book Mining Companies," and are
governed by the general law of partnership.
Lindl.Partn. *147.
Cost-plus contract. One which fixes the amount
to be paid the contractor on a basis, generally, of
the cost of the material and labor, plus an agreed
percentage thereof. The Spica, C.C.A.N.Y., 289
F. 436, 445.
COSEN, COZEN. In old English law. To cheat.
"A cosening knave." 3 Leon. 171.
Cost price. That which is actually paid for
goods. Buck v. Burk, 18 N.Y. 337; Esterman•Verkamp Co. v. Rouse, 211 Ky. 791, 278 S.W. 124, 127.
COSENAGE. (Also spelled "Cosinage," "Cousinage.") In old English law. A writ that lay for
the heir where the tresail, e., the father of the
besail, or great-grandfather, was seised of lands
in fee at his death, and a stranger entered upon
the land and abated. Fitzh.Nat.Brev. 221; 3 Bla.
Comm. *186.
Kindred; cousinship; relationship; affinity.
Stat. 4 Hen. III. cap. 8; 3 Bla.Comm. 186; Co.
Litt. 160a.
Costs of collection. Strictly, expenses involved
in endeavoring to make collection, as of a promissory note; but as used in or with reference to such
notes, the phrase is synonymous with attorney's
fees. McClain v. Continental Supply Co., 66 Okl.
225, 168 P. 815, 818; Wood v. Ferguson, 71 Mont.
540, 230 P. 592, 594. It does not refer to costs of
suit, which are recoverable by law. Cox v. Hagan,
125 Va. 656, 100 S.E. 666, 674.
COSENING. In old English law. An offense,
mentioned in the old books, where anything was
done deceitfully, whether belonging to contracts
or not, which could not be properly termed by
any special name. The same as the stellionatus
of the civil law. Cowell; West.Symb. pt. 2, Indictment, § 68; Blount; 4 Bla.Comm. 158.
COSHERING. In old English law. A feudal prerogative or custom for lords to lie and feast themselves at their tenants' houses. Cowell.
COSMOPATHIC. Open to the access of supernormal knowledge or emotion supposedly from a
CO-STIPULATOR. A joint promisor.
COSTS. A pecuniary allowance, made to the successful party, (and recoverable from the losing
party,) for his expenses in prosecuting or defending a suit or a distinct proceeding within a suit.
Stevens v. Bank, 168 N.Y. 560, 61 N.E. 904; Bennett v. Kroth, 37 Kan. 235, 15 P. 221, 1 Am.St.Rep.
248; Pezel v. Yerex, 56 Cal.App. 304, 205 P. 475,
478; In re Leary's Estate, 172 Misc. 286, 14 N.Y.S.
2d 960, 961.
Expenses pending suit as allowed or taxed by the court.
Jones v. Adkins, 170 Ark. 288, 280 S.W. 389, 394.
Fees and charges required by law to be paid
to the courts or some of their officers, the amount
415
COSTS
of which is fixed by law. Blair v. Brownstone
Oil & Refining Co., 20 Cal.App. 316, 128 P. 1022.
Costs and fees were originally altogether different in
their nature. The one is an allowance to a party for
expenses incurred in prosecuting or defending a suit; the
other, a compensation to an officer for services rendered in
the progress of a cause. Therefore, while an executor or
administrator was not personally liable to his adversary
for costs, yet, if at his instance an officer performed services for him, he had a personal demand for his fees. Musser v. Good, 11 Serg. & R., Pa., 247. Moreover, costs are
an incident to the judgment; fees are compensation to
public officers for services rendered individuals not in the
course of litigation. Tillman v. Wood, 58 Ala. 579.
In Georgia, however, it is held that "costs," include all
charges fixed by statute as compensation for services rendered by officers of the court in the progress of the cause.
Welton. County v. Dean, 23 Ga.App. 97, 97 S.E. 561, 562.
There is no general or controlling provision or principle
of law to the effect that attorney fees that may by statute
be recovered by the winning party against the losing party
in a suit or action are, or should be regarded as, costs in
the case. "Costs" do not include attorney fees unless such
fees are by a statute denominated costs or are by statute
allowed to be recovered as costs in the case. State ex rel.
Royal Ins. Co. v. Barrs, 87 Fla. 168, 99 So. 668, 669;
McRostie v. City of Owatonna, 152 Minn. 63, 188 N.W. 52,
54; Littlefield v. Scott, Tex.Civ.App., 244 S.W. 824, 826;
Calman v. Cox, Mo.App., 296 S.W. 845, 846; City of Los
Angeles v. Abbott, 217 Cal. 184, 17 P.2d 993, 996.
But the word "costs" is frequently understood as including attorney fees. McClain v. Continental Supply Co., 66
Okl. 225, 168 P. 815, 817; Livesley v. Strauss, 104 Or. 356,
207 P. 1095; Lonoke County v. Reed, 122 Ark. 111, 182
S.W. 563, 564; J. I. Case Plow-Works v. J. I. Case Threshing Mach. Co., 162 Wis. 185, 155 N.W. 128, 138.
In England, the term "costs" is also used to
designate the charges which an attorney or solidi-,
tor is entitled to make and recover from his client,
as his remuneration for professional services,,
such as legal advice, attendances, drafting and
copying documents, conducting legal proceedings,
etc.
Bill of Costs. A certified, itemized statement of
the amount of costs in an action or suit.
Certificate for Costs. In English practice, a certificate or memorandum drawn up and signed by
the judge before whom a case was tried, setting
out certain facts, the existence of which must be
thus proved before the party is entitled, under the
statutes, to recover costs.
Cost Bond, or Bond for Costs. A bond given by
a party to an action to secure the eventual payment of such costs as may be awarded against
him.
Costs de Incremento. Increased costs, costs of
increase. Costs adjudged by the court in addition to those assessed by the jury. Day v. Woodworth, 13 How. 372, 14 L.Ed. 181.
Those extra expenses incurred which do not appear on
the face of the proceedings, such as witnesses' expenses,
fees to counsel, attendances, court fees, etc. Wharton.
Costs cf the Day. Costs which are incurred in
preparing for the trial of a cause on a specified
day, consisting of witnesses' fees, and other fees
of attendance. Archb.N.Prac. 281; Ad.Eq. 343.
Costs to Abide Event. When an order is made
by an appellate court reversing a judgment, with
"costs to abide the event," the costs intended by
the order include those of the appeal, so that, if
the appellee is finally successful, he is entitled to
tax the costs of the appeal. First Nat. Bank v.
Fourth Nat. Bank, 84 N.Y. 469; Casualty Co. of
America v. A. L. Swett Electric Light & Power
Co., 121 Misc. 268, 200 N.Y.S. 79,6, 801.
Double Costs. The ordinary single costs of suit,
and one-half of that amount in addition. 2 Tidd,
Pr. 987. "Double" is not used here in its ordinary
sense of "twice" the amount. Van Aulen v. Decker, 2 N.J.Law, 108; Gilbert v. Kennedy, 22 Mich.
19. But see Moran v. Hudson, 34 N.J.Law, 531.
These costs are now abolished in England by St.
5 & 6 Vict. c. 97. Wharton,
Final Costs. Such costs as are to be paid at the
end of the suit; costs, the liability for which depends upon the final result of the litigation. Goodyear v. Sawyer, C.C.Tenn., 17 F. 8.
Interlocutory Costs. In practice. Costs accruing upon proceedings in the intermediate stages
of a cause, as distinguished from final costs; such
as the costs of motions. 3 Chit.Gen.Pr. 597; Goodyear v. Sawyer, C.C.Tenn., 17 F. 6.
Security for Costs. In practice. A security
which a defendant in an action may require of a
plaintiff who does not reside within the jurisdiction of the court, for the payment of such costs as
may be awarded to the defendant. 1 Tidd, Pr. 534.
Ex parte Louisville & N. R. Co., 124 Ala. 547, 27
So. 239.
Treble Costs. A rate of costs given in certain
actions, consisting, according to its technical import, of the common costs, half of these, and half
of the latter. 2 Tidd, Pr. 988. The word "treble,"
in this application, is not understood in its literal
sense of thrice the amount of single costs, but
signifies merely the addition together of the three
sums fixed as above. Id. Treble costs have been
abolished in England, by St. 5 & 6 Vict. c. 97. In
American law. In Pennsylvania and New Jersey
the rule is different. When an act of assembly
gives treble costs, the party is allowed three times
the usual costs, with the exception that the fees
of the officers are not to be trebled when they are
not regularly or usually payable by the defendant.
Shoemaker v. Nesbit, 2 Rawle, Pa., 203; Welsh v.
Anthony, 16 Pa. 256; Mairs v. Sparks, 5 N.J.Law,
516.
COSTUMBRE. In Spanish law. Custom; an unwritten law established by usage, during a long
space of time. Las Partidas, pt. 1, tit. 2, 1. 4.
CO-SURETIES. Joint sureties; two or more
sureties to the same obligation. State of Arkansas v. Pufahl, C.C.A.Ark., 52 F.2d 116, 120; French
v. Young, 292 Mich. 443, 290 N.W. 861, 862, 863.
COTA. A cot or hut. Blount.
COTAGIUM. In old English law. A cottage.
COTARIUS. In old English law. A cottager, who
held in free socage, and paid a stated fine or rent
in provisions or money, with some occasional personal services. See Coterellus.
416
COUNCIL
have been removed at the gin or whether it is
lint cotton in the seed or in the bale. Freeman v.
State, 156 Ark. 592, 247 S.W. 51.
COTENANCY. A tenancy by several distinct titles
but by unity of possession, or any joint ownership
or common interest with its grantor. Shepard v.
Mt. Vernon Lumber Co., 192 Ala. 322, 68 So. 880,
881, 15 A.L.R. 23. The term is broad enough to
comprise both tenancy in common and joint tenancy. Caldwell v. Farrier, Tex.Civ.App., 248 S.W.
425, 427.
COTTON GIN. A term sometimes used as synonymous with ginhouse. State v. Rodgers, 168 N.C.
112, 83 S.E. 161, 162.
COTERELLI. Anciently, a kind of peasantry who
were outlaws; robbers. Blount.
COTERELLUS. In feudal law. A cottager; a
servile tenant, who held in mere villenage; his
person, issue, and goods were disposable at the
lord's pleasure. A coterellus, therefore, occupied
a less favorable position than a cotarius (q. v.), for
the latter held by socage tenure. Cowell.
COTTON MILL OF FACTORY. One which manufactures cotton from the raw state into a finished
product. Dumas v. State, 17 Ala.App. 492, 86 So.
162, 163.
COTTON NOTES. Receipts given for each bale
of cotton received on storage by a public warehouse. Fourth Nat. Bank v. St. Louis Cotton
Compress Co., 11 Mo.App. 337.
COTERIE. A fashionable association, or a knot
of persons forming a particular circle. The origin
of the term was purely commercial, signifying
an association, in which each member furnished
his part, and bore his share in the profit and loss.
Wharton.
COTTON SEASON. The season for buying and
selling cotton between September 1 and the following May 1. Morris v. Hellums Co., 131 Ark. 585,
199 S.W. 927, 928.
COTESWOLD. In old records. A place where
there is no wood.
COTLAND. In old English law. Land held by a
cottager, whether in socage or villenage. Cowell;
Blount.
CO-TSETHLA. In old English law. The little seat
or mansion belonging to a small farm.
COTUCA. Coat armor.
COTUCHANS. A term used in Domesday for
peasants, boors, husbandmen.
COUC1IANT. Lying down; squatting. Couchant
and levant (lying down and rising up) is a term
applied to animals trespassing on the land of one
other than their owner, for one night or longer.
3 Bl.Comm. 9.
COTSETHLAND. The seat of a cottage with the
land belonging to it. Spelman.
COTSETUS. A cottager or cottage-holder who
held by servile tenure and was bound to do the
work of the lord. Cowell.
COTTAGE. In English law. A small dwellinghouse that has no land belonging to it. Shep.
Touch. 94; Emerton v. Selby, 2 Ld.Raym. 1015;
Scholes v. Hargreaves, 5 Term, 46; Hubbard v.
Hubbard, 15 Adol. & E. (N.S.) 240; Gibson v.
Brockway, 8 N.H. 470, 31 Am.Dec. 200. It has been
held that the term includes a two-family house, not
being limited to a structure for the use of only one
family. Jones v. Mulligan, N.J.Ch., 121 A. 608, 609.
COTTIER TENANCY. A species of tenancy in
Ireland, constituted by an agreement in writing,
and subject to the following terms: That the tenement consists of a dwelling-house with not more
than half an acre of land; at a rental not exceeding £5 a year; the tenancy to be for not more
than a month at a time; the landlord to keep the
house in good repair. Landlord and Tenant Act,
Ireland, 23 & 24 Viet. c. 154, § 81.
COTTOLENE. A registered trade-mark name for
cooking fat. Imperial Cotto Sales Co. v. N. K.
Fairbanks Co., 50 App.D.C. 250, 270 F. 686, 687.
COTTON. A term which is applicable to such
substance in whatever state it exists after it has
been gathered and before it is manufactured into
some article of merchandise, whether the seed
Black's Law Dictionary Revised 4th Ed.-27
COTTON LINTERS. Called also "linters." An
inferior grade of cotton, obtained by reginning cotton seed. Commercial Union Assur. Co., Limited,
of London, England, v. Creek Cotton Oil Co., 96
Oki. 189, 221 P. 499, 501.
COUCHER, or COURCHER. A factor who continues abroad for traffic, (37 Edw. III. c. 16;) also
the general book wherein any corporation, etc.,
register their acts, (3 & 4 Edw. VI. c. 10.)
COULISSE. The stockbrokers' curb market in
Paris.
COUNCIL. An assembly of persons for the purpose of concerting measures of state or municipal
policy; hence called "councillors."
In American Law. The legislative body in the
government of cities or boroughs. An advisory
body selected to aid the executive; particularly in
the colonial period (and at present in some of the
United States) a body appointed to advise and assist the governor in his executive or judicial capacities or both. Opinion of the Justices, 14 Mass.
470; Opinion of the Justices, 3 Pick., Mass., 517;
In re Adams, 4 Pick., Mass., 25; Answers of the
Justices, 70 Me. 570.
Common Council. In American law. The lower
or more numerous branch of the legislative assembly of a city. In English law. The councillors
of the city of London. The parliament, also, was
anciently called the "common council of the
realm." Fleta, 2, 13.
417
Privy Council. See that title.
COUNCIL
Select Council. The name given, in some states,
to the upper house or branch of the council of a
city.
COUNCIL OF CONCILIATION. By the Act 30 &
31 Viet. c. 105, power is given for the crown to
grant licenses for the formation of councils of
conciliation and arbitration, consisting of a certain
number of masters and workmen in any trade or
employment, having power to hear and determine
all questions between masters and workmen which
may be submitted to them by both parties, arising
out of or with respect to the particular trade or
manufacture, and incapable of being otherwise
settled. They have power to apply to a justice to
enforce the performance of their award. The
members are elected by persons engaged in the
trade. Davis, Bldg.Soc. 232; Sweet.
COUNCIL OF JUDGES. Under the English judicature act, 1873, § 75, an annual council of the
judges of the supreme court is to be held, for the
purpose of considering the operation of the new
practice, offices, etc., introduced by the act, and
of reporting to a secretary of state as to any alterations which they consider should be made in
the law for the administration of justice. An extraordinary council may also be convened at any
time by the lord chancellor. Sweet.
COUNCIL OF THE BAR. A body composed of
members of the English bar which governs the
bar. It hears complaints against barristers and
reports its findings with recommendations to the
benchers of the Inn of Court of which the barrister
is a member, who alone can act. Leaming, Phila.
Lawy. in Lond. Courts 67.
COUNCIL OF THE NORTH. A court instituted
by Henry VIII. in 1537, to administer justice in
Yorkshire and the four other northern counties.
Under the presidency of Stratford, the court
showed great rigor, bordering, it is alleged, on
harshness. It was abolished by 16 Car. I., the
same act which abolished the Star Chamber.
Brown.
COUNSEL. 1. In practice. An advocate, counsellor, or pleader. 3 Bl.Comm. 26; 1 Kent, Comm.
307. One who assists his client with advice, and
pleads for him in open court. One who has been
admitted as an attorney and counsellor at law.
Baker v. State, 9 Okl.Cr. 62, 130 P. 820, 821. See
Counsellor.
Counsellors who are associated with those regularly retained in a cause, either for the purpose of
advising as to the points of law involved, or preparing the case on its legal side, or arguing questions of law to the court, or preparing or conducting the case on its appearance before an appellate
tribunal, are said to be "of counsel."
2. Knowledge. A grand jury is sworn to keep
secret "the commonwealth's counsel, their fellows', and their own."
3. Advice given by one person to another in
regard to a proposed line of conduct, claim, or contention. State v. Russell, 83 Wis. 330, 53 N.W. 441.
The words "counsel" and "advise" may be, and frequently are, used in criminal law to describe the offense of
a person who, not actually doing the felonious act, by his
will contributed to it or procured it to be done. Omer v.
Corn., 95 Ky. 353, 25 S.W. 594.
Counsel's signature. This is required, in some
jurisdictions, to be affixed to pleadings, etc., as
affording the court a means of judging whether
they are interposed in good faith and upon legal
grounds. It has been held that the word "counsel"
in this connection denotes a person capable of
testifying, and that a certificate bearing only the
firm signatures of partnerships of attorneys is insufficient. Benedict v. Seiberling, D.C., 17 F.2d
831, 838.
Junior counsel. The younger of the counsel employed on the same side of a case, or the one lower
in standing or rank, or who is intrusted with the
less important parts of the preparation or trial of
the cause.
COUNSELLOR. An advocate or barrister. A
member of the legal profession whose special function is to give counsel or advice as to the legal
aspects of judicial controversies, or their preparation and management, and to appear in court for
the conduct of trials, or the argument of causes,
or presentation of motions, or any other legal
business that takes him into the presence of the
court.
In some of the states, the two words "counsellor" and
"attorney" are used interchangeably to designate all
lawyers. In others, the latter term alone is used, "counsellor" not being recognised as a technical name. In still
others, the two are associated together as the full legal
title of any person who has been admitted to practice in
the courts; while in a few they denote different grades,
it being prescribed that no one can become a counsellor
until he has been an attorney for a specified time and has
passed a second examination.
In the practice of the United States supreme court, the
term denotes an officer who is employed by a party in a
cause to conduct the same on its trial on his behalf. He
differs from an attorney at law.
In the supreme court of the United States, the two
degrees of attorney and counsel were at first kept separate,
and no person was permitted to practice in both capacities,
but the present practice is otherwise. Weeks, Attys. at
Law, 54. It is the duty of the counsel to draft or review
and correct the special pleadings, to manage the cause on
trial, and, during the whole course of the suit, to apply
established principles of law to the exigencies of the ease.
1 Kent, Comm. 307.
COUNT, v. In pleading. To declare; to recite;
to state a case; to narrate the facts constituting
a plaintiff's cause of action. In a special sense,
to set out the claim or count of the demandant in
a real action.
To plead orally; to plead or argue a case in
court; to recite or read in court; to recite a count
in court.
Count upon a statute. To make express reference to it, as the words "against the form of the
statute" (or "by the force of the statute") "in
such case made and provided." Richardson v.
Fletcher, 74 Vt. 417, 52 A. 1064.
"Pleading the statute" is stating the facts which bring
the case within it, and "counting" on it is making express
reference to it by apt terms to show the source of right
relied on. Atlantic Coast Line R. Co. v. State, 73 Fla. 609,
74 So. 595, 599.
418
COUNTER
COUNT-OUT. In English parliamentary law.
Forty members form a house of commons; and,
though there be ever so many at the beginning of
a debate, yet, if during the course of it the house
should be deserted by the members, till reduced
below the number of forty, any one member may
have it adjourned upon its being counted; but a
debate may be continued when only one member
is left in the house, provided no one choose to
move an adjournment. Wharton.
COUNT, n. In pleading. The plaintiff's statement of his cause of action. The different parts of
a declaration, each of which, if it stood alone,
would constitute a ground for action. Used also
to signify the several parts of an indictment,
each charging a distinct offense. Boren v. State,
23 Tex.App. 28, 4 S.W. 463; Bailey v. Mosher, C.
C.A.Neb., 63 F. 490, 11 C.C.A. 304; Ryan v. Riddle,
109 Mo.App. 115, 82 S.W. 1117.
"Count" and "charge" when used relative to allegations
in an indictment or information are synonymous. State v.
Thornton, 142 La. 797, 77 So. 634, 636; State v. Puckett,
39 N.M. 511, 50 P.2d 964, 965.
The words "count and count-out" refer to the count of
the house of commons by the speaker. Forty members,
including the speaker, are required to constitute a quorum.
Each day after parliament is opened, the speaker counts
the house. If forty members are not present he waits till
four o'clock, and then counts the house again. If forty
members are not then present, he at once adjourns it to
the following meeting day. May, Parl.Prac. 219.
Count sur concessit solvere. A claim based upon
a promise to pay ,—a count in the mayor's court of
London. Under it the plaintiff can sue for any
liquidated demand, but not for money due under
a covenant. Particulars defining more precisely
the nature of the claim must be delivered with the
declaration. Odger, C. LI 1029.
Common counts. Certain general counts or
forms inserted in a declaration in an action to
recover a money debt, not founded on the circumstances of the individual case, but intended to
guard against a possible variance, and to enable
the plaintiff to take advantage of any ground of
liability which the proof may disclose, within the
general scope of the action. Nugent v. Teauchot,
67 Mich. 571, 35 N.W. 254.
In the action of assumpsit, these counts are as follows :
For goods sold and delivered, or bargained and sold; for
work done; for money lent; for money paid; for money
received to the use of the plaintiff ; for interest; or for
money due on an account stated.
General count. One stating in a general way
the plaintiff's claim. Wertheim v. Casualty Co., 72
Vt. 326, 47 A. 1071.
Money counts. A species of common counts, so
called from the subject-matter of them; embracing the indebitatus assumpsit count for money
lent and advanced, for money paid and expended,
and for money had and received, together with the
insimul computassent count, or count for money
due on an account stated. 1 Burrill, Pr. 132.
Omnibus count. A count which combines in
one all the money counts with one for goods sold
and delivered, work and labor, and an account
stated. Webber v. Tivill, 2 Saund. 122; Griffin v.
Murdock, 88 Me. 254, 34 A. 30.
Several counts. Where a plaintiff has several
distinct causes of action, he is allowed to pursue
them cumulatively in the same action, subject to
certain rules which the law prescribes. Wharton.
Special count. As opposed to the common
counts, in pleading, 'a special count is a statement
of the actual facts of the particular case, or a
count in which the plaintiff's claim is set forth
with all needed particularity. Wertheim v. Casualty Co., 72 Vt. 326, 47 A. 1071.
COUNT. (Fr. comte; from the Latin comes.)
An earl.
It gave way as a distinct title to the Saxon earl, but was
retained in countess, viscount, and as the basis of county.
Termes de la ley; 1 Bla.Comm. 398.
COUNTEE. In old English law. The most eminent dignity of a subject before the Conquest. He
was prcefectus or prcepositus comitatus, and had
the charge and custody of the county; but this
authority is now vested in the sheriff. 9 Coke, 46.
COUNTENANCE. In old English law. Credit;
estimation. Wharton. Also, encouragement; aiding and abetting. Cooper v. Johnson, 81 Mo. 487.
COUNTER, n. (Spelled, also, "Compter.") The
name of two prisons formerly standing in London,
but now demolished. They were the Poultry
Counter and Wood Street Counter. Cowell;
Whish.L.D.; Coke, 4th Inst. 248.
COUNTER, adj. Adverse; antagonistic; opposing or contradicting; contrary. Silliman v. Eddy,
8 How.Prac., N.Y., 122.
Counter-affidavit. An affidavit made and presented in contradiction or opposition to an affidavit
which is made the basis or support of a motion or
application.
Counter-bond. In old practice. A bond of indemnity. 2 Leon. 90.
Counterclaim. See that title.
Counter-deed. A secret writing, either before a
notary or under a private seal, which destroys,
invalidates, or alters a public one.
Counter-letter. A species of instrument of defeasance common in the civil law. It is executed
by a party who has taken a deed of property, absolute on its face, but intended as security for a
loan of money, and by it he agrees to reconvey
the property on payment of a specified sum. The
two instruments, taken together, constitute what
is known in Louisiana as an "antichresis," (q. v.).
Karcher v. Karcher, 138 La. 288, 70 So. 228, 229;
Livingston v. Story, 11 Pet. 351, 9 L.Ed. 746.
Counter-mark. A sign put upon goods already
marked; also the several marks put upon goods
belonging to several persons, to show that they
must not be opened, but in the presence of all the
owners or their agents.
Counter-plea. See Plea.
419
COUNTER
Counter-security. A security given to one who
has entered into a bond or become surety for
another; a countervailing bond of indemnity.
COUNTERCLAIM. A claim presented by a defendant in opposition to or deduction from the
claim of the plaintiff. A species of set-off or recoupment introduced by the codes of civil procedure in many of the states, of a broad and liberal character. Quoted in Wollan v. McKay, 24
Idaho, 691, 135 P. 832, 837.
It is an offensive as well as a defensive plea, which is
not necessarily confined to the justice of plaintiff's claim,
and it represents the right of the defendant to have the
claims of the parties counterbalanced in whole or in part,
with judgment to be entered for the excess, if any. Olsen
v. McMaken & Pentzien, 139 Neb. 506, 297 N.W. 830, 833.
Its sole requisites are that it must tend to defeat
or diminish plaintiff's demand, and that demands
must be reciprocal. Bond v. Farmers & Merchants Nat. Bank, Los Angeles, 64 Cal.App.2d
842, 149 P.2d 722, 724; Dobbins v. Horsfall, 58 Cal.
App.2d 23, 136 P.2d 35, 38.
It is in effect a new suit in which the party named as
defendant under the bill is plaintiff and the party named as
plaintiff under the bill is defendant. Roberts Min. & Mill.
Co. v. Schrader, C.C.A.Nev., 95 F.2d 522, 524.
The term is broader in meaning than set-off or recoupment, and includes them both. Williams v. Williams, 192
N.C. 405, 135 S.E. 39, 40; Fricke v. W. E. Fuetterer Battery & Supplies Co., 220 Mo.App. 623, 288 S.W. 1000, 1002;
Curtis-Warner Corporation v. Thirkettle, 99 N.J.Eq. 806,
134 A. 299, 302; Otto v. Lincoln Sa y . Bank of Brooklyn, 51
N.Y.S.2d 561, 563, 268 App.Div. 400; 'Etna Life Ins. Co. v.
Griffin, 200 N.C. 251, 156 S.E. 515, 516.
The counterclaim is a substitute for the cross-bill in
equity. McAnarney v. Lembeck, 97 N.J.Eq. 361, 127 A. 197,
198; Vidal v. South American Securities Co., C.C.A.N.Y.,
276 F. 855. It is but another name for a cross-petition, and
may be so styled, especially in actions prosecuted by equitable proceedings. Taylor v. Wilson, 182 Ky. 592, 206 S.W.
865, 866; Clark v. Duncanson, 79 OkI. 180, 192 P. 806, 809,
the thigh and against the patient's groin. Sweet
v. Douge, 145 Wash. 142, 259 P. 25.
COUNTERFEIT. In criminal law. To forge;
to copy or imitate, without authority or right, and
with a view to deceive or defraud, by passing the
copy or thing forged for that which is original
or genuine. Most commonly applied to the fraudulent and criminal imitation of money. State v.
McKenzie, 42 Me. 392; U. S. v. Barrett, D.C.N.D.,
111 F. 369; DeRose v. People, 64 Colo. 332, 171
P. 359, L.R.A.1918C, 1193; Metropolitan Nat.
Bank v. National Surety Co., D.C.Minn., 48 F.
2d 611, 612.
COUNTERFEIT COIN. Coin not genuine, but resembling or apparently intended to resemble or
pass for genuine coin, including genuine coin prepared or altered so as to resemble or pass for
coin of a higher denomination. U. S. v. Hopkins,
D.C.N.C., 26 F. 443; U. S. v. Bogart, 24 Fed.Cas.
1185; U. S. v. Gellman, D.C.Minn., 44 F.Supp. 360,
363.
COUNTERFEITER. In criminal law. One who
unlawfully makes base coin in imitation of the
true metal, or forges false currency, or any instrument of writing, bearing a likeness and similitude to that which is lawful and genuine, with an
intention of deceiving and imposing upon mankind. Thirman v. Matthews, 1 Stew., Ala., 384.
COUNTER-FESANCE. The act of forging.
COUNTER LETTER. An agreement to reconvey
where property has been passed by absolute deed
with the intention that it shall serve as security
only. Standard Oil Co. of Louisiana v. Futral,
204 La. 215, 15 So.2d 65, 73.
16 A.L.R. 450.
Under rule 30 of Federal rules in equity see Fed.Rules
Civ.Proc. rules 8, 13, 28 U.S.C.A., "counterclaim" means
any claim, not such as to constitute a set-off, which, in
equity, a defendant might assert against the plaintiff in
the same suit. Terry Steam Turbine Co. v. B. F. Sturtevant Co., D.C.Mass., 204 F. 103, 105.
A counterclaim may be any cause of action in favor of
defendants or some of them against plaintiffs or some of
them, a person whom a plaintiff represents or a plaintiff
and another person or persons alleged to be liable. New
York Civ.Prac.Act, § 266.
A "counterclaim" must be a cause of action, and seeks
affirmative relief, while a defense merely defeats the plaintiff's cause of action by a denial or confession and avoidance, and does not admit of affirmative relief to the defendant. Lovett v. Lovett, 93 Fla. 611, 112 So. 768, 780; Secor
v. Siver, 165 Iowa, 673, 146 N.W. 845, 847.
COUNTEREXTENSION. In surgery, in connection with "Buck's extension" process, which is
some uniform, continuous force or pull applied to
the leg or foot below a break, to overcome the natural contraction of the muscles of the thigh,
which have a strong tendency to pull the broken
ends together and cause them to slip by each other and overlap, especially when the break is oblique across bone, "counterextension" denotes the
pull upwards holding the body against the extension downwards, effected by a splint appliance, on
the upper end of which is a ring fitting around
COUNTERMAND. A change or revocation of orders, authority, or instructions previously issued.
It may be either express or implied; the former
where the order or instruction already given is
explicitly annulled or recalled; the latter where
the party's conduct is incompatible with the further continuance of the order or instruction, as
where a new order is given inconsistent with the
former order.
COUNTERPART. In conveyancing. The corresponding part of an instrument; a duplicate or
copy. Where an instrument of conveyance, as a
lease, is executed in parts, that is, by having several copies or duplicates made and interchangeably executed, that which is executed by the grantor is usually called the "original," and the rest
are "counterparts"; although, where all the parties execute every part, this renders them all originals. 2 Bl. Comm. 296; Shep. Touch. 50. Roosevelt v. Smith, 17 Misc.Rep. 323, 40 N.Y.S. 381.
See Duplicate.
In granting lots subject to a ground-rent reserved to the
grantor, both parties execute the deeds, of which there
are two copies; although both are original, one of them
is sometimes called the counterpart. See- 12 Vin.Abr. 104
Dane, Abr.Index; 7 Com.Dig. 443; Merlin, Rip. Double
Ecrit.
420
COUNTY
COUNTERPART WRIT. A copy of the original
writ, authorized to be issued to another county
when the court has jurisdiction of the cause by
reason of the fact that some of the defendants
are residents- of the county or found therein.
White v. Lea, 9 Lea, Tenn., 450.
over a territory. Stairs v. Peaslee, 18 How. 521, 15 L.Ed.
474; U. S. v. Recorder, 1 Blatchf. 218, 225, 5 N.Y.Leg.Obs.
286, Fed.Cas.No.16,129.
The word "country" as used in treaties made by the
United States government, in so far as it applies to the
United States, means the states of such country. Pagano
v. Cerri, 93 Ohio St. 345, 112 N.E. 1037, 1039, L.R.A.1917A,
486.
COUNTER-ROLLS. In English law. The rolls
which sheriffs have with the coroners, containing
particulars of their proceedings, as well of appeals as of inquests, etc. 3 Edw. I. c. 10.
In pleading and practice. The inhabitants of
a district from which a jury is to be summoned;
pais; a jury. 3 Bl.Comm. 349; 4 Bl. Comm. 349;
Steph. Pl. 73, 78, 230.
COUNTERSIGN. As a noun, the signature of a
secretary or other subordinate officer to any writing signed by the principal or superior to vouch
for the authenticity of it. Fifth Ave. Bank v.
Railroad Co., 137 N.Y. 231, 33 N.E. 378, 19 L.R.A.
331; Gurnee v. Chicago, 40 Ill. 167.
COUNTRY WHENCE HE CAME. Within statute providing for deportation of aliens means
country of alien's nativity, where domicile has
not been acquired elsewhere. Immigration Act
1924, § 13, 8 U.S.C.A. § 213; 8 U.S.C.A. § 156.
Schenck ex rel. Capodilupo v. Ward, C.C.A.Mass.,
80 F.2d 422, 426.
As a verb, to sign in addition to the signature
of another in order to attest the authenticity.
Winsor v. Hunt, 29 Ariz. 504, 243 P. 407, 411; Henning v. American Ins. Co., 108 Kan. 194, 194 P.
647, 648; Waldo Bros. Co. v. Downing, 131 Me. 410,
163 A. 787, 789.
COUNTERVAIL. To counterbalance; to avail
against with equal force or virtue; to compensate
for, or serve as an equivalent of or substitute for.
COUNTERVAIL LIVERY. At common law, a release was a form of transfer of real estate where
some right to it existed in one person but the actual possession was in another; and the possession in such case was said to "countervail livery,"
that is, it supplied the place of and rendered
unnecessary the open and notorious delivery of
possession required in other cases. Miller V.
Emans, 19 N.Y. 387.
COUNTERVAILING EQUITY. See Equity.
COUNTEUR. In the time of Edward I, a pleader; also called a Nurrator, and Serjeant-Counteur.
See Countors.
COUNTEZ, L. Fr. Count, or reckon. In old practice. A direction formerly given by the clerk of
a court to the crier, after a jury was sworn, to
number them; and which Blackstone says was
given in his time, in good English, "count these."
4 Bl. Comm. 340, note (u.).
COUNTING UPON A STATUTE, See Count
Upon a Statute.
COUNTORS. Advocates, or serjeants at law,
whom a man retains to defend his cause and
speak for him in court, for their fees. 1 Inst. 17.
COUNTRY. The portion of the earth's surface
occupied by an independent nation or people, or
the inhabitants of such territory.
In its primary meaning "country" signifies "place;"
and, in a larger sense, the territory or dominions occupied
by a community; or even waste and unpeopled sections or
regions of the earth. But its metaphorical meaning is no
less definite and well understood; and in common parlance, in historical and geographical writings, in diplomacy, legislation, treaties, and international codes, the
word is employed to denote the population, the nation, the
state, or the government, having possession and dominion
Term means the country territorially rather than governmentally from which the alien came. Immigration Act
1917, § 20, 8 U.S.C.A. § 156. Moraitis v. Delany, D.C.Md.,
46 F.Supp. 425, 430.
But deportation to "country whence alien came"
would be complied with if the alien was returned
to political dominion in exile and control of country from whence he came. Delany v. Moraitis,
C.C.A.Md., 136 F.2d 129, 130, 131, 132, 133.
COUNTY. One of the civil divisions of a country
for judicial and political purposes. 1 Bla. Comm.
113.
Etymologically, it denotes that portion of the country
under the immediate government of a count or earl. 1 Bla.
Comm. 116.
One of the principal subdivisions of the kingdom of
England and of most of the states of the American Union,
denoting a distinct portion of territory organized by itself
for political and judicial purposes. In modern use, the
word may denote either the territory marked off to form a
county, or the citizens resident within such territory, taken
collectively and considered as invested with political rights,
or the county regarded as a municipal corporation possessing subordinate governmental powers, or an organized
jural society invested with specific rights and duties.
Eagle v. Beard, 33 Ark. 501; Wooster v. Plymouth, 62 N.H.
208; In re Becker, 179 App. Div. 789, 167 N.Y.S. 118, 119;
Greb v. King County, 187 Wash. 587, 60 P.2d 690, 692.
In the English law, this word signifies the same as shire,
-county being derived from the French, and shire from
the Saxon. Both these words signify a circuit or portion
of the realm into which the whole land is divided, for the
better government thereof and the more easy administration of justice. There is no part of England that is not
within some county; and the shirereeve (sheriff) was the
governor of the province, under the comes, earl, or count.
Counties are political subdivisions of the state, created to
aid in the administration of state law for the purpose of
local self-government. Hunt v. Mohave County, 18 Ariz.
480, 162 P. 600, 602; Board of Com'rs of Osborne County
v. City of Osborne, 104 Kan. 671, 180 P. 233, 234; Divide
County v. Baird, 55 N.D. 45, 212 N.W. 236, 243, 51 A.L.R.
296; Dolezal v. Bostick, 41 Okl. 743, 139 P. 964, 968; Middlesex County v. City of Waltham, 278 Mass. 514, 180 N.E.
318, 319, and hence not "municipal corporations." Housing
Authority of Birmingham Dist. v. Morris, 244 Ala. 557, 14
So.2d 527, 535.
Counties are held in some jurisdictions to be municipal
corporations. Mosier v. Cowan, 295 Mich. 27, 294 N.W. 85,
86; Pacific Fruit & Produce Co. v. Oregon Liquor Control.
Commission, D.C.Or., 41 F.Supp. 175, 179; and are sometimes said to be involuntary municipal corporations. Perkins v. Board of Com'rs of Cook County, 271 Ill. 449, 111
N.E. 580, 584, Ann.Cas.1917A, 27. Other cases, seeking to
distinguish between the two, say that counties are agencies
or political subdivisions of the state for governmental pur-
421
COUNTY
poses, and not, like municipal corporations, incorporations
of the inhabitants of specified regions for purposes of local
government. Dillwood v. Riecks, 42 Cal.App. 602, 184 P.
35, 37; Bexar County v. Linden, 110 Tex. 339, 220 S.W.
761. Counties are also said to be merely quasi corporations. Breathitt County v. Hagins, 183 Ky. 294, 207 S. W.
713, 714; MacKenzie v. Douglas County, 91 Or. 375, 178
P. 350, 352; Jefferson County ex rel. Grauman v. Jefferson
County Fiscal Court, 274 Ky. 91, 118 S.W.2d 181, 184.
"Vicinage," in its primary and literary meaning, denotes
a neighborhood or vicinity; a "county," on the other
hand, is a definitely designated territory. Commonwealth
v. Collins, 268 Pa. 295, 110 A. 738, 739.
Body of the county. The county at large, as
distinguished from any particular place within it;
a county considered as a territorial whole. Fluke
v. State, 27 Okl.Cr. 234, 226 P. 118, 120.
County affairs. Those relating to the county
in its organic and corporate capacity and included
within its governmental or corporate powers.
Scarbrough v. Wooten, 23 N.M. 616, 170 P. 743,
744. Such as affect the people of the county in
question. Bradford v. Cole, 95 Okl. 35, 217 P.
470, 471.
County attorney. The public prosecutor. Kytka v. Weber County, 48 Utah, 421, 160 P. 111, 113.
A constitutional officer, acting under oath, vested with
authority, and it is his duty to inquire into alleged violations of law, to institute criminal proceedings, and to represent the state in matters and proceedings in his county,
he signs all informations, and may make application for
leave to file information before examination, commitment,
or admission to bail. State ex rel. Juhl v. District Court
of First Judicial Dist. in and for Jefferson County, Mont.,
107 Mont. 309, 84 P.2d 979, 981, 120 A.L.R. 353.
County board of equalization. A body created
for the purpose of equalizing values of property
subject to taxation. , Overland Co. v. Utter, 44
Idaho, 385, 257 P. 480, 482.
County board of supervisors. Is not the county, but a body of town and city officers acting
for and on behalf of county in such matters as
have been turned over to them by law. Cort v.
Smith, 249 App.Div. 1, 291 N.Y.S. 54, 60.
County bonds. Broadly, any bonds issued by
county officials to be paid for by a levy on a special taxing district, whether or not coextensive
with the county. Forrey v. Board of Com'rs of
Madison County, 189 Ind. 257, 126 N.E. 673.
County bridge. A bridge of the larger class,
erected by the county, and which the county is liable to keep in repair. Boone County v. Mutchler,
137 Ind. 140, 36 N.E. 534.
County business. All business pertaining to
the county as a corporate entity. City of Astoria
v. Cornelius, 119 Or. 264, 240 P. 233, 235. All business of the county, and any other business of
such county connected with or interrelated with
the business of any other county properly within
the jurisdiction of the county commissioners'
court. Glenn v. Dallas County Bois d'Arc Island
Levee Dist., Tex.Civ.App., 275 S.W. 137, 145.
County commissioners. Officers of a county,
charged with a variety of administrative and executive duties, but principally with the manage-
ment of the financial affairs of the county, its police regulations, and its corporate business.
Sometimes the local laws give them limited judicial powers. In some states they are called
"supervisors." Corn. v. Krickbaum, 199 Pa. 351,
49 A. 68.
In Georgia, the term is used interchangeably with "commissioners of roads and revenue." Morris v. Smith, 153
Ga. 438(2), 112 S.E. 468; Rhodes v. Jernigan, 155 Ga. 523,
117 S.E. 432, 434.
County corporate. A city or town, with more
or less territory annexed, having the privilege to
be a county of itself, and not to be comprised in
any other county; such as London, York, Bristol, Norwich, and other cities in England. 1 Bl.
Comm. 120. See State v. Finn, 4 Mo.App. 347.
They differ in no material points from other
counties.
County court. A court of high antiquity in
England, incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas
of debt or damages, under the value of forty shillings. The freeholders of the county (anciently
termed the "suitors" of the court) are the real
judges in this court, and the sheriff is the ministerial officer. See 3 Bl. Comm. 35, 36; 3 Steph.
Comm. 395. But in modern English law the name
is appropriated to a system of tribunals established by the statute 9 & 10 Vict. c. 95, having a
limited jurisdiction, principally for the recovery
of small debts. It is also the name of certain
tribunals of limited jurisdiction in the county of
Middlesex, established under the statute 22 Geo.
II. c. 33. In American law. The name is used in
many of the states to designate the ordinary
courts of record having jurisdiction for trials at
nisi prius. Their powers generally comprise ordinary civil jurisdiction, also the charge and care
of persons and estates coming within legal guardianship, a limited criminal jurisdiction, appellate jurisdiction over justices of the peace, etc.
County farm bureaus. Governmental agencies
intrusted with the duty of disseminating among
farmers scientific knowledge of an educational
nature for the improvement of agriculture. State
v. Miller, 104 Neb. 838, 178 N.W. 846, 848.
County funds. This term may include township
funds, the legal title of which is in the county,
which holds them for disbursement in accordance
for the purpose for which they are created. Fidelity & Deposit Co. of Maryland v. Wilkinson
County, 109 Miss. 879, 69 So. 865, 868. See, also,
State v. McGraw, 74 Mont. 152, 240 P. 812, 817.
Compare Board of Education v. Wake County, 167
N.C. 114, 83 S.E. 257, 258.
County general fund. A fund raised to meet
the expenses incident to county government.
County Board of Education v. Austin, 169 Ark.
436, 276 S.W. 2, 5.
County jail. A place of incarceration for the
punishment of minor offenses and the custody of
transient prisoners, where the ignominy of confinemeat is devoid of the infamous character
422
COUNTY
is concerned and will profit. Public Utilities Commission
v. Manley, 99 Colo. 153, 60 P.2d 913, 917. Seaboard Air
Line Ry. Co. v. Wright, 34 Ga.App. 88, 128 S.E. 234,
235. With reference to budgets, all legitimate components
of a county budget. Garrison v. Jersey City, 92 N.J.Law,
624, 105 A. 460, 462. The term has been held to apply only
to the constantly recurring expenditures, such as salaries
of county officers. Obenchain v. Daggett, 68 Or. 374, 137
P. 212, 214. But it has also been held not to be equivalent to "current expenses." Seaboard Air-Line Ry. Co. v.
Wright, 157 Ga. 722, 122 S.E. 35, 36.
which an imprisonment in the state jail or penitentiary carries with it. U. S. v. Greenwald, D.C.
Cal., 64 F. 8.
County line. This term, when used in a statute providing that the trial for an offense committed on a county line may be in either county
divided by such line, is not to be given the geometrical definition of a "line" as having neither
breadth nor thickness, but includes all of a fenced
public highway dividing two counties, so that a
prosecution for robbery committed upon the highway may be maintained in either county, regardless of the side of the center line of the highway
upon which the offense was committed. Stone
v. People, 71 Colo. 162, 204 P. 897, 898.
County rate. In English law. An imposition
levied on the occupiers of lands, and applied to
many miscellaneous purposes, among which the
most important are those of defraying the expenses connected with prisons, reimbursing to
private parties the costs they have incurred in
prosecuting public offenders, and defraying the
expenses of the county police. 15 & 16 Vict. c. 81.
County line bridge. A bridge over a stream
constituting the boundary line between two counties, one end of which bridge is in one county and
the other end in another county. Newberry v.
Hall County, 52 Ga.App. 472, 183 S.E. 664, 665.
County road. One which lies wholly within one
county, and which is thereby distinguished from
a state road, which is a road lying in two or more
counties. State v. Wood County, 17 Ohio, 186.
County officers. Those whose general authority and jurisdiction are confined within the limits
of the county in which they are appointed, who
are appointed in and for a particular county, and
whose duties apply only to that county, and
through whom the county performs its usual political functions. State v. Burns, 38 Fla. 367, 21
So. 290; State v. Glenn, 7 Heisk., Tenn., 473; In
re Carpenter, 7 Barb., N.Y., 34; Hamilton v. Monroe, Tex.Civ.App., 287 S.W. 304, 306; State ex rel.
Osborn v. Eddington, 208 Ind. 160, 195 N.E. 92.
County-seat. A county-seat or county-town is
the chief town of a county, where the county
buildings and courts are located and the county
business transacted. Williams v. Reutzel, 60 Ark.
155, 29 S.W. 374; In re Allison, 13 Colo. 525, 22
P. 820, 10 L.R.A. 790; McGregor v. Cain, 177 Ark.
474, 7 S.W.2d 13, 14.
Public officers who fill a position usually provided for in
the organization of counties and county governments, and
are selected by the county to represent it continuously and
as part of the regular and permanent administration of
public power in carrying out certain acts with the performance of which it is charged in behalf of the public.
Coulter v. Pool, 187 Cal. 181, 201 P. 120, 123.
The county town as the seat of government. Dunne v.
Rock Island County, 283 Iii. 628, 119 N.E. 591, 595. The
place where the courthouse is situated, and the district and
county courts are held. Turner v. Tucker, 113 Tex. 434,
258 S.W. 149, 150.
County sessions. In England, the court of general quarter sessions of the peace held in every
county once in every quarter of a year. Mozley
& Whitley.
County palatine. A term bestowed upon certain counties in England, the lords of which in
former times enjoyed especial privileges. They
might pardon treasons, murders, and felonies. All
writs and indictments ran in their names, as in
other counties in the king's; and all offenses were
said to be done against their peace, and not, as in
other places, contra pacem domini regis. But
these privileges have in modern times nearly disappeared. 1 Holdsw. Hist. E. L. 49; 4 Inst. 205.
County site. The seat of government of the
county. Board of Revenue of Covington County
v. Merrill, 193 Ala. 521, 68 So. 971, 977. The courthouse site. Board of Revenue of Jefferson County
v. Huey, 195 Ala. 83, 70 So. 744, 746.
County powers. Such only as are expressly
provided by law or which are necessarily implied
from those expressed. Hersey v. Nelson, 47 Mont.
132, 131 P. 30, 32, Ann.Cas.1914C, 963.
County-town. The county-seat; the town in
which the seat of government of the county is located. State v. Cates, 105 Tenn. 441, 58 S.W. 649.
County property. That which a county is authorized to acquire, hold, and sell. State v.
Brown, 73 Mont. 371, 236 P. 548, 549; State v. Poland, 61 Mont. 600, 203 P. 352, 353.
County purposes. Those exercised by the county acting as a municipal corporation. Conrad v.
Shearer, 197 Iowa 1078, 198 N.W. 633, 634.
As regards the rate of taxation, all purposes for which
county taxation may be levied. Test whether a tax is
levied for county purposes is whether it is for strictly
county uses, for which county or its inhabitants alone
would benefit, or is it for a purpose in which entire state
County tax. Tax exclusively for county purposes, in which state has no sovereign interest or
responsibility, and which has no connection with
duties of county in its relation to state. Amos v.
Mathews, 99 Fla. 1, 126 So. 308, 323.
County treasury. Not the physical place of
deposit, but the funds deposited to the credit of
the county. State v. Kurtz, 110 Ohio St. 332, 144
N.E. 120, 123.
County warrant. An order or warrant drawn
by some duly authorized officer of the county, directed to the county treasurer and directing him
to pay out of the funds of the county a designated
sum of money to a named individual, or to his order or to bearer. Savage v. Mathews, 98 Ala.
535, 13 So. 328; Crawford v. Noble County, 8 Okl.
450, 58 P. 616; Quinn v. Reed, 130 Ark. 116, 197
423
COUNTY
S.W. 15, 16; Tyler v. Shelby County, Tex., C.C.A.
Tex., 47 F.2d 103, 105.
Foreign county. Any county having a judicial
and municipal organization separate from that of
the county where matters arising in the former
county are called in question, though both may lie
within the same state or country.
COUPLED WITH AN INTEREST. This phrase,
in the law of agency, has reference to a writing
creating, •conveying to, or vesting in the agent an
interest in the estate or property which is the
subject of the agency, as distinguished from the
proceeds or profits resulting from the exercise of
the agency. George H. Rucker & Co. v. Glennan,
130 Va. 511, 107 S.E. 725, 728.
COUPONS. Interest and dividend certificates;
also those parts of a commercial instrument which
are to be cut, and which are evidence of something connected with the contract mentioned in
the instrument. They are generally attached to
certificates of loan, where the interest is payable
at particular periods, and, when the interest is
paid, they are cut off and delivered to the payer.
Wharton. Toon v. Wapinitia Irr. Co., 117 Or. 374,
243 P. 554, 556.
In England, they are known as warrants or dividend warrants, and the securities to which they
belong, debentures; 13 C. B. 372.
Coupons are written contracts for the payment of a
d3finite sum of money on a given day, and being drawn
and executed in a form and mode for the purpose, that
they may be separated from the bonds and other instruments to which they are usually attached, it is held that
they are negotiable and that a suit may be maintained on
them without the necessity of producing the bonds. Each
matured coupon upon a negotiable bond is a separable
promise, distinct from the promises to pay the bonds or the
other coupons, and gives rise to a separate cause of action.
Aurora v. West, 7 Wall. 88, 19 L.Ed. 42. Haven v. Depot
Co., 109 Mass. 88; Thompson v. Perrine, 106 U.S. 589, 1
S.Ct. 564, 27 L.Ed. 298.
In Workmen's Compensation Acts, the usual course of
business of the employer covers the normal operations
which form part of the ordinary business carried on, and
not Including incidental and occasional operations having
for their purpose the preservation of the premises or the
appliances used in the business. Walker v. Industrial
Accident Commission, 177 Cal. 737, 171 P. 954, 955, L.R.A.
1918F, 212.
Commercial paper is said to be transferred, or sales
alleged to have been fraudulent may be shown to have
been made, "in the course of business," or "in the usual
and ordinary course of business," when the circumstances
of the transaction are such as usually and ordinarily attend
dealings of the same kind and do not exhibit any signs of
haste, secrecy, or fraudulent intention. Walbrun v. Babbitt, 16 Wall. 581, 21 L.Ed. 489; Brooklyn, etc., R. Co. v.
National Bank, 102 U.S. 14, 26 L.Ed. 61.
COURSE OF EMPLOYMENT. Those words as
applied to compensation for injuries within the
purview of Workmen's Compensation Acts, refer
to the time, place, and circumstances under which
the accident takes place. Fogg's Case, 125 Me.
168, 132 A. 129, 130; Brady v. Oregon Lumber Co.,
117 Or. 188, 243 P. 96, 99, 45 A.L.R. 812; Walker
v. Hyde, 43 Idaho, 625, 253 P. 1104, 1105; Wilson
v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d
907, 910. A workman is in course of employment when, within time covered by employment,
he is doing something which he might reasonably
do while so employed at proper place. Dambold
v. Industrial Commission, 323 Ill. 377, 154 N.E.
128, 129; In re Employers' Liability Assur. Corporation, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A,
306; Conrad v. Cook-Lewis Foundry Co., 198 N.C.
723, 153 S.E. 266, 269; In re McCrary, 109 Neb.
796, 192 N.W. 237, 239.
COUR DE CASSATION. The supreme judicial
tribunal of France, having appellate jurisdiction
only. For an account of its composition and powers, see Jones, French Bar, 22; Guyot. Repert.
Univ.
In order that an injury may arise out of and in the
course of employment, it must be received while the workman is doing the duty he is employed to perform and also
as a natural incident of the work flowing therefrom as a
natural consequence and directly connected therewith. Di
Salvio v. Menihan Co., 225 N.Y. 123, 121 N.E. 766, 767.
"In course of employment," as used in Workmen's Compensation Act, means in service of master, and is not synonymous with "during the period covered by his actual.
employment." An injury, to be within course of employment, must occur during hours of employment, which
includes hours of leisure set apart in working hours for
rest, recreation, or refreshment, but not time when
employee is off premises, not engaged in employer's business, or at home preparing for work, or coming to or
leaving work. Shofiler v. Lehigh Valley Coal Co., 290 Pa.
480, 139 A. 192, 193. An employee, even after closing time,
is in the "course of employment" until a suitable opportunity has been given for him to leave the place of work.
Field v. Charmette Knitted Fabric Co., 245 N.Y. 139, 156
N.E. 642, 643; Munn v. Industrial Board, 274 Ill. 70, 113
N.E. 110, 112.
The expression "in the course of his employment," in
the rule that a master is liable for the torts of his servant
done in the course of his employment, means while
engaged in the service of the master, while engaged generally in the master's work, as distinguished from acts
done when the servant steps outside of his employment to
do an act for himself, not connected with his master's
business. Sina v. Carlson, 120 Minn. 283, 139 N.W. 601, 602.
And see Birmingham Ledger Co. v. Buchanan, 10 Ala.App.
527, 65 So. 667, 670.
COURSE. In surveying, the direction of a line
with reference to a meridian.
See, also, Arising Out of and in the Course of
Employment.
COURSE OF BUSINESS. What is usually done
in the management of trade or business. Idom v.
Weeks & Russell, 135 Miss. 65, 99 So. 761, 764;
In re Malschick, D.C.Pa., 217 F. 492, 494.
COURSE OF RIVER. The course of a river is a
line parallel with its banks; the term is not synonymous with the "current" of the river. Attorney General v. Railroad Co., 9 N.J.Eq. 550.
Coupon bonds. Bonds to which are attached
coupons for the several successive installments of
interest to maturity. Benwell v. Newark, 55 N.
J.Eq. 260, 36 A. 668; Tennessee Bond Cases, 114
U.S. 663, 5 S.Ct. 974, 29 L.Ed. 281.
Coupon notes. Promissory notes with coupons
attached, the coupons being notes for interest
written at the bottom of the principal note, and
designed to be cut off severally and presented
for payment as they mature. Williams v. Moody,
95 Ga. 8, 22 S.E. 30.
424
COURT
COURSE OF THE VOYAGE. By this term is understood the regular and customary track, if such
there be, which a ship takes in going from one
port to another, and the shortest way. Marsh.
Ins. 185; Phi11. Ins. 981.
COURSE OF TRADE. What is customarily or
ordinarily done in the management of trade or
business.
COURSE OF VEIN. In mining, the "course of
the vein" appearing on the surface is the course
of its apex, which is generally inclined and undulated and departs more or less materially from
the strike. Stewart Mining Co. v. Bourne, C.C.A.
Idaho, 218 F. 327, 329.
COURSE OF VESSEL. In navigation, the
"course" of a vessel is her apparent course, and
not her heading at any given moment. The Eastern Glade, C.C.A.N.Y., 101 F.2d A, 6. It is her actual course. Liverpool, Brazil & River Plate
Steam Na y . Co. v. U. S., D.C.N.Y., 12 F.2d 128,
129.
COURT. A space which is uncovered, but which
may be partly or wholly inclosed by buildings or
walls. Smith v. Martin, 95 Okl. 271, 219 P. 312,
313. When used in connection with a street, indicates a short street, blind alley, or open space
like a short street inclosed by dwellings or other
buildings facing thereon. City of Miami v. Saunders, 151 Fla. 699, 10 So.2d 326, 329.
Legislation
A legislative assembly. Parliament is called
In the old books a court of the king, nobility, and
commons assembled. Finch, Law, b. 4, c. 1, p.
233; Fleta, lib. 2, c. 2.
The application of the term—which originally denoted
the place of assembling—to denote the assemblage, resembles the similar application of the Latin term curia, and
is readily explained by the fact that the earlier courts were
merely assemblages, in the court-yard of the baron or of
the king himself, of those who were qualified and whose
duty it was so to appear at stated times or upon summons.
Traces of this usage and constitution of courts still remain
in the courts baron, the various courts for the trial of
Impeachments in England and the United States, and in
the control exercised by the parliament of England and
the legislatures of the various states of the United States
over the organization of courts of justice, as constituted in
modern times. This meaning of the word has also been
retained in the titles of some deliberative bodies, such as
the "general court" of Massachusetts, i. e., the legislature.
International Law
The person and suite of the sovereign; the place
where the sovereign sojourns with his regal retinue, wherever that may be. The English government is spoken of in diplomacy as the court of
St. James, because the palace of St. James is the
official palace.
Practice
An organ of the government, belonging to the
judicial department, whose function is the application of the laws to controversies brought before
it and the public administration of justice. White
County v. Gwin, 136 Ind. 562, 36 N.E. 237, 22 L.
R.A. 402; Bradley v. Town of Bloomfield, 85 N.J.
Law, 506, 89 A. 1009.
The presence of a sufficient number of the members of such a body regularly convened in an authorized place at an appointed time, engaged in
the full and regular performance of its functions.
Brumley v. State, 20 Ark. 77; Wightman v. Karsner, 20 Ala. 446.
A body in the government to which the administration of justice is delegated. A body organized to administer justice, and including both judge
and jury. Houston Belt & Terminal Ry. Co. v.
Lynch, Tex.Com.App., 221 S.W. 959, 960; People
ex rel. Thaw v. Grifenhagen, Sup., 154 N.Y.S. 965,
970; Peterson v. Fargo-Moorhead St. Ry. Co., 37
N.D. 440, 164 N.W. 42, 49.
A tribunal officially assembled under authority of law at
the appropriate time and place, for the administration of
justice. In re Carter's Estate, 254 Pa. 518, 99 A. 58.
An agency of the sovereign created by it directly or
indirectly under its authority, consisting of one or more
officers, established and maintained for the purpose of
hearing and determining issues of law and fact regarding
legal rights and alleged violations thereof, and of applying
the sanctions of the law, authorized to exercise its powers
in due course of law at times and places previously determined by lawful authority. Isbill v. Stovall, Tex.Civ.App.,
92 S.W.2d 1067, 1070.
An incorporeal, political being, composed of one or more
judges, who sit at fixed times and places, attended by
proper officers, pursuant to lawful authority, for the
administration of justice. State v. Le Blond, 108 Ohio St.
126, 140 N.E. 510, 512. An organized body with defined
powers, meeting at certain times and places for the hearing and decision of causes and other matters brought
before it, and aided in this, its proper business, by Its
proper officers, viz., attorneys and counsel to present and
manage the business, clerks to record and attest its acts
and decisions, and ministerial officers to execute its commands, and secure due order in its proceedings. Ex parte
Gardner, 22 Nev. 280, 39 P. 570; Hertzen v. Hertzen, 104
Or. 423, 208 P. 580, 582.
It is a passive forum for adjusting disputes and has no
power to investigate facts or to initiate proceedings. Sale
v. Railroad Commission, 15 Ca1.2d 612, 104 P.2d 38, 41.
The place where justice is judicially administered. Co. Litt. 58a; 3 Bl. Comm. 23. Railroad Co.
v. Harden, 113 Ga. 456, 38 S.E. 950; Croft v. Croft,
119 N.J.Eq. 468, 182 A. 853.
The judge, or the body of judges, presiding over
a court.
The words "court" and "judge," or "judges," are frequently used in statutes as synonymous. When used with
reference to orders made by the court or judges, they are
to be so understood. State v. Caywood, 96 Iowa, 367, 65
N.W. 385; Sale v. Railroad Commission, 15 Ca1.2d 612, 104
P.2d 38, 41.
The word "court" is often employed in statutes otherwise than in its strict technical sense, and is applied to
various tribunals not judicial in their character, State v.
Howat, 107 Kan. 423, 191 P. 585, 589; for example, in New
Jersey, the "court of pardons"; In re Court of Pardons, 97
N.J.Eq. 555, 129 A. 624, 625.
Classification
Courts may be classified and divided according
to several methods, the following being the more
usual:
Courts of record and courts not of record. The
former being those whose acts and judicial proceedings are enrolled, or recorded, for a perpetual
425
COURT
memory and testimony, and which have power to
fine or imprison for contempt. Error lies to their
judgments, and they generally possess a seal.
Courts not of record are those of inferior dignity,
which have no power to fine or imprison, and in
which the proceedings are not enrolled or recorded. 3 Bl. Comm. 24; 3 Steph. Comm. 383; The
Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte
Thistleton, 52 Cal. 225; Erwin v. U. S., D.C.Ga.,
37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96
Ohio St. 205, 117 N.E. 229, 231.
A "court of record" is a judicial tribunal having attributes and exercising functions independently of the person
of the magistrate designated generally to hold it, and
proceeding according to the course of common law, its acts
and proceedings being enrolled for a perpetual memorial.
Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex
parte Gladhill, 8 Metc., Mass., 171, per Shaw, C. J. See,
also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689.
Courts may be at the same time of record for some purposes and not of record for others. Lester v. Redmond, 6
Hill, N.Y., 590; Ex parte Gladhill, 8 Metc., Mass., 168.
Superior and inferior courts. The former being
courts of general original jurisdiction in the first
instance, and which exercise a control or supervision over a system of lower courts, either by appeal, error, or certiorari; the latter being courts
of small or restricted jurisdiction, and subject to
the review or correction of higher courts. Sometimes the former term is used to denote a particular group or system of courts of high powers,
and all others are called "inferior courts."
To constitute a court a superior court as to any class of
actions, within the common-law meaning of that term, its
jurisdiction of such actions must be unconditional, so that
the only thing requisite to enable the court to take cognizance of them is the acquisition of jurisdiction of the
persons of the parties. Simons v. De Bare, 4 Bosw., N.Y.,
547.
An inferior court is a court whose judgments or decrees
can be reviewed, on appeal or writ of error, by a higher
tribunal, whether that tribunal be the circuit or supreme
court. Nugent v. State, 18 Ala. 521.
Civil and criminal courts. The former being
such as are established for the adjudication of controversies between subject and subject, or the ascertainment, enforcement, and redress of private
rights; the latter, such as are charged with the
administration of the criminal laws, and the punishment of wrongs to the public.
Equity courts and law courts. The former being such as possess the jurisdiction of a chancellor, apply the rules and principles of chancery law,
and follow the procedure in equity; the latter,
such as have no equitable powers, but administer
justice according to the rules and practice of the
common law.
As to the division of courts according to their
jurisdiction, see Jurisdiction.
As to several names or kinds of courts not specifically described in the titles immediately following, see Arches Court, Appellate, Circuit
Courts, Consistory Courts, County, Customary
Court-Baron, Ecclesiastical Courts, Federal
Courts, Forest Courts, High Commission Court,
Instance Court, Justice Court, Justiciary Court,
Legislative Courts, Maritime Court, Mayor's Court,
Moot Court, Municipal Court, Orphans' Court, Police Court, Prerogative Court, Prize Court, Probate Court, Superior Courts, Supreme Court, and
Surrogate's Court.
As to court-hand, court-house, court-lands, court
rolls, courtyard, see those titles in their alphabetical order infra.
General
Court above, court below. In appellate practice, the "court above" is the one to which a cause
is removed for review, whether by appeal, writ of
error, or certiorari; while the "court below" is
the one from which the case is removed. Going
v. Schnell, 6 Ohio Dec. 933.
Court in bank. A meeting of all the judges of
a court, usually for the purpose of hearing arguments on demurrers, points reserved, motions for
new trial, etc., as distinguished from sessions of
the same court presided over by a single judge or
justice.
Court of competent jurisdiction. One having
power and authority of law at the time of acting
to do the particular act. Ex parte Plaistridge, 68
Okl. 256, 173 P. 646, 647.
One having jurisdiction under the state Constitution and
laws to determine the question in controversy. Texas
Employers' Ins. Ass'n v. Nunamaker, Tex.Civ.App., 267
S. W. 749, 751. A court for the administration of justice as
established by the Constitution or statute. Bradley v.
Town of Bloomfield, 85 N.J.Law, 506, 89 A. 1009.
Court of limited jurisdiction. When a court
of general jurisdiction proceeds under a special
statute, it is a "court of limited jurisdiction" for
the purpose of that proceeding, and its jurisdiction must affirmatively appear. Osage Oil & Refining Co. v. Interstate Pipe Co., 124 Okl. 7, 253 P.
66, 71.
De facto court. One established, organized, and
exercising its judicial functions under authority
of a statute apparently valid, though such statute
may be in fact unconstitutional and may be afterwards so adjudged; or a court established and
acting under the authority of a de facto government. 1 Bl. Judgm. § 173; In re Manning, 139
U.S. 504, 11 S.Ct. 624, 35 L.Ed. 264; Gildemeister
V. Lindsay, 212 Mich, 299, 180 N.W. 633, 635.
Full court. A session of a court, which is attended by all the judges or justices composing it.
Spiritual courts. In English law. The ecclesiastical courts, or courts Christian. See 3 Bl.
Comm. 61.
COURT-BARON. In English law. A court
which, although not one of record, is incident to
every manor, and cannot be severed therefrom.
It was ordained for the maintenance of the services and duties stipulated for by lords of manors,
and for the purpose of determining actions of a
personal nature, where the debt or damage was
under forty shillings. Wharton; 1 Poll. & Maitl.
Hist. E. L. 580.
Customary court-baron is one appertaining entirely to copyholders. 3 Bl.Comm. 33.
426
COURT-MARTIAL
Freeholders' court-baron is one held before the
freeholders who owe suit and service to the manor. It is the court-baron proper.
Coke (1st Inst. 58a) speaks of the Court Baron as being
of the two natures just indicated. Blackstone, 3 Comm. 33,
says that, though in their nature distinct, they are frequently confounded together. Later writers doubt if there
were two courts; 1 Poll. & Maitl.Hist.E.L. 580.
COURT CHRISTIAN. The ecclesiastical courts
in England are often so called, as distinguished
from the civil courts. 1 Bl. Comm. 83; 3 Bl.
Comm. 64; 3 Steph. Comm. 430.
COURT FOR CONSIDERATION OF CROWN
CASES RESERVED. A court established by St.
11 & 12 Vict. c. 78, composed of such of the judges
of the superior courts of Westminster as were able
to attend, for the consideration of questions of
law reserved by any judge in a court of oyer and
terminer, gaol delivery, or quarter sessions, before which a prisoner had been found guilty by
verdict. Such question is stated in the form of
a special case. Mozley & Whiteley; 4 Steph.
Comm. 442. The trial judge was empowered to
"state a case" for the opinion of that court. He
could not be compelled to do so, and only a question of law could be raised. If the court considered that the point had been wrongly decided at
the trial, the conviction would be quashed. By
Act of 1907, the Court of Criminal Appeal was
created and the Court for Crown Cases Reserved
was abolished.
COURT FOR DIVORCE AND MATRIMONIAL
CAUSES. This court was established by St. 20
& 21 Vict. c. 85, which transferred to it all jurisdiction then exercisable by any ecclesiastical court
in England, in matters matrimonial, and also gave
it new powers. The court consisted of the lord
chancellor, the three chiefs, and three senior
puisne judges of the common-law courts, and the
judge ordinary, who together constituted, and
still constitute, the "full court." The judge ordinary heard almost all matters in the first instance.
By the judicature act, 1873, § 3, the jurisdiction
of the court was transferred to the supreme court
of judicature. Sweet.
COURT FOR THE CORRECTION OF ERRORS.
The style of a court having jurisdiction for review, by appeal or writ of error. The name was
formerly used in New York and South Carolina.
COURT FOR THE RELIEF OF INSOLVENT
DEBTORS. In English law. A local court which
had its • sittings in London only, which received
the petitions of insolvent debtors, and decided
upon the question of granting a discharge. See
3 Steph. Com. 426; 4 id. 287. Abolished by the
Bankruptcy Act of 1861.
COURT FOR THE TRIAL OF IMPEACHMENTS.
A tribunal empowered to try any officer of government or other person brought to its bar by the
process of impeachment. In England, the house
of lords constitutes such a court; in the United
States, the senate; and in the several states, usually the upper house of the legislative assembly.
COURT-HAND. In old English practice. The
peculiar hand in which the records of courts were
written from the earliest period down to the reign
of George II. Its characteristics were great
strength, compactness, and undeviating uniformity; and its use undoubtedly gave to the ancient
record its acknowledged superiority over the modern, in tile important quality of durability.
The writing of this hand, with its peculiar abbreviations and contractions, constituted, while it
was in use, an art of no little importance, being
an indispensable part of the profession of "clerkship," as it was called. Two sizes of it were employed, a large and a small hand; the former,
called "great court-hand," being used for initial
words or clauses, the placita of records, etc. Burrill.
COURT-HOUSE. The building occupied for the
public sessions of a court, with its various offices.
The building occupied and appropriated according
to law for the holding of courts. Board of Sup'rs
of Stone County v. O'Neal, 130 Miss. 57, 93 So. 483,
484. Johnson City Buick -Co. v. Johnson, 165
Tenn. 349, 54 S.W.2d 946.
The term may be used of a place temporarily occupied
for the sessions of a court, though not the recrular courthouse. Harris v. State, 72 Miss. 960, 18 So. 387, 33 L.R.A.
85; Vigo County v. Stout, 136 Ind. 53, 35 N.E. 683, 22
L. R. A. 398.
The word may be synonymous with "county site" and
signify the seat of government. Board of Revenue of
Jefferson County v. Huey, 195 Ala. 83, 70 So. 744, 746.
COURT, HUNDRED. See Hundred Court.
COURT-LANDS. Domains or lands kept in the
lord's hands to serve his family.
COURT-LEET. The name of an English court
of record held once in the year, and not oftener,
within a particular hundred, lordship, or manor,
before the steward of the leet; being the king's
court granted by charter to the lords of those
hundreds or manors. Its office was to view the
frankpledges,—that is, the freemen within the
liberty; to present by jury crimes happening within the jurisdiction; and to punish trivial misdemeanors. It has now, however, for the most part,
fallen into total desuetude; though in some manors a court-leet is still periodically held for the
transaction of the administrative business of the
manor. Mozley & Whitley; Odgers, C. L. 965;
Powell, Courts Leet; 1 Reeve, Hist. Eng. Law;
Inderwick, King's Peace, 11; 1 Poll. & Maitl. 568;
4 Steph. Com. 306.
COURT-MARTIAL. A military court, convened
under authority of government and the Uniform
Code of Military Justice, 10 U.S.C.A. § 801 et seq.,
for trying and punishing offenses committed by
members of the armed forces.
Such courts exist and have their jurisdiction by
virtue of the military law, the court being constituted and empowered to act in each instance
by authority from a commanding officer.
427
COURT OF ADMIRALTY
COURT . OF ADMIRALTY. A court having jurisdiction of causes arising under the rules of admiralty law. See Admiralty.
COURT OF ASSISTANTS. A court in Massachusetts organized in 1630, consisting of the gov-
High Court of Admiralty. In English law.
This was a court which exercised jurisdiction in
prize cases, and had general jurisdiction in maritime causes, on the instance side. Its proceedings
were usually in rem, and its practice and principles derived in large measure from the civil law.
The judicature acts of 1873 transferred all the
powers and jurisdiction of this tribunal to the
probate, divorce, and admiralty division of the
high court of justice.
COURT OF ATTACHMENTS. The lowest of the
three courts held in the forests. It has fallen into total disuse.
COURT OF ANCIENT DEMESNE. In English
law. A court of peculiar constitution, held by a
bailiff appointed by the king, in which alone the
tenants of the king's demesne could be impleaded.
2 Burrows, 1046; 1 Spence, Eq.Jur. 100; 2 Bl.
Comm. 99; 1 Steph. Comm. 224; 1 Poll. & Maitl.
367.
COURT OF APPEAL, HIS MAJESTY'S. The
chief appellate tribunal of England. It was established by the judicature acts of 1873 and 1875,
and is invested with the jurisdiction formerly exercised by the court of appeal in chancery, the exchequer chamber, the judicial committee of the
privy council in admiralty and lunacy appeals,
and with general appellate jurisdiction from the
high court of justice.
COURT OF APPEALS. In American law. An
appellate tribunal which, in Kentucky, Maryland,
the District of Columbia, and New York, is the
court of last resort. In Virginia and West Virginia, it is known as the "supreme court of appeals"; in Connecticut, the Supreme Court of Errors; in Massachusetts and Maine, the Supreme
Judicial Court. In other states the court of last
resort is known as the Supreme Court. In Texas
the Courts of Civil Appeals are inferior to the supreme court.
The United States is divided into eleven judicial
circuits in each of which there is established a
court of appeals known as the United States Court
of Appeals for the circuit. 28 U.S.C.A. §§ 41, 43.
COURT OF APPEALS IN CASES OF CAPTURE.
A court erected by act of congress under the articles of confederation which preceded the adoption of the constitution. It had appellate jurisdiction in prize causes.
COURT OF ARBITRATION OF THE CHAMBER
OF COMMERCE. A court of arbitrators, created for the convenience of merchants in the city
of New York, by act of the legislature of New
York. It decides disputes between members of
the chamber of commerce, and between members
and outside merchants who voluntarily submit
themselves to the jurisdiction of the court.
COURT OF ARCHDEACON. The most inferior
of the English ecclesiastical courts, from which
an appeal generally lies to that of the bishop (i.
e., to the Consistory Court). 3 Bl. Comm. 64; 1
Holdsw. Hist. E.
L. 369,
ernor, deputy governor and assistants. It exercised the whole power both legislative and judicial
of the colony and an extensive chancery jurisdiction as well. S. D. Wilson in 18 Am.L.Rev. 226.
It was held before the verderers of the forest once in
every forty days, to view the attachments by the foresters
for offences against the vert and the venison. It had cognizance only of small trespasses. Larger ones were
enrolled and heard by the Justices in Eyre. 1 Holdsw.
Hist.E.L. 343.
COURT OF AUDIENCE. An ecclesiastical court,
in which the primates once exercised in person a
considerable part of their jurisdiction. Such
courts seem to be now obsolete, or at least to be
only used on the rare occurrence of the trial of a
bishop. Phillim. Ecc. Law, 1201, 1204; 1 Holdsw.
Hist. E. L. 371.
COURT OF AUGMENTATION. An English
court created in the time of Henry VIII (27 Hen.
VIII, c. 27), with jurisdiction over the property
and revenue of certain religious foundations,
which had been made over to the king by act of
parliament, and over suits relating to the same.
It was called "The Court of the Augmentations of the
Revenues of the King's Crown" (from the augmentation of
the revenues of the crown derived from the suppression of
the monasteries), and was dissolved in the reign of Queen
Mary, but the Office of Augmentation remained long after;
the records of the court are now at the Public Record
Office. Cowell.
COURT OF BANKRUPTCY. An English court
of record, having original and appellate jurisdiction in matters of bankruptcy, and invested with
both legal and equitable powers for that purpose.
The Bankrupt Law Consolidation Act, 1849. By
the judicature acts, 1873 and 1875, the court of
bankruptcy was consolidated into the supreme
court of judicature.
In the United States, the Bankruptcy Act, § 1.
(10), 11 U.S.C.A. § 1(10), as amended, provides
that " 'courts of bankruptcy' shall include the district courts of the United States and of the Territories and possessions to which this title is or
may hereafter be applicable, and the District
Court of the United States for the District of Columbia."
COURT OF BROTHERHOOD. An assembly of
the mayors or other chief officers of the principal
towns of the Cinque Ports in England, originally
administering the chief powers of those ports,
now almost extinct. Cent. Diet.
COURT OF CHANCERY. A court having the jurisdiction of a chancellor; a court administering
equity and proceeding according to the forms and
principles of equity. In England, prior to the judicature acts, the style of the court possessing the
largest equitable powers and jurisdiction was the
"high court of chancery." In some of the United
States, the title "court of chancery" is applied to
428
COURT OF DELEGATES
Vict. c. 125, § 11, subsec. 8). Appeals lay anciently
to the king's bench, but afterwards to the exchequer chamber. See 3 Bl.Comm. 37, et seq. Its
jurisdiction was altogether confined to civil matters, having no cognizance in criminal cases, and
was concurrent with that of the queen's bench
and exchequer in personal actions and ejectment.
Wharton.
In American law. The name sometimes given
to a court of original and general jurisdiction for
the trial of issues of fact and law according to the
principles of the common law. Moore v. Barry,
30 S.C. 530, 9 S.E. 589, 4 L.R.A. 294.
a court possessing general equity powers, distinct
from the courts of common law. Parmeter v.
Bourne, 8 Wash. 45, 35 P. 586; Bull v. International Power Co., 84 N.J.Eq. 209, 93 A. 86, 88.
The terms "equity" and "chancery," "court of equity"
and "court of chancery," are constantly used as synonymous in the United States. It is presumed that this custom
arises from the circumstance that the equity jurisdiction
which is exercised by the courts of the various states is
assimilated to that possessed by the English courts of chancery. Indeed, in some of the states it is made identical
therewith by statute, so far as conformable to our institutions. Wagner v. Armstrong, 93 Ohio St. 443, 113 N.E.
397, 401.
COURT OF CHIVALRY. In English law. The
name of a court anciently held as a court of honor merely, before the earl-marshal, and as a criminal court before the lord high constable, jointly
with the earl-marshal. (But it is , also said that
this court was held by the constable, and after
that office reverted to the crown in the time of
Henry VIII., by the earl-marshal. Davis, Mil.
Law 13.) 3 Bl.Comm. 68; 4 Broom & H. Comm.
360, note; 3 Bl. Comm. 103; 3 Steph. Comm. 335,
note l; 7 Mod. 137.
It had jurisdiction as to contracts and other matters.
COURT OF COMMON PLEAS FOR THE CITY
AND COUNTY OF NEW YORK. The oldest
court in the state of New York, no longer in existence.
COURT OF CONCILIATION. A court which
proposes terms of adjustment, so as to avoid litigation. Kashefsky v. Futernick, 153 Misc. 733,
276 N.Y.S. 253.
COURT OF CONSCIENCE. The same as courts
of request, (q. v.). This name is also frequently
applied to the courts of equity or of chancery,
not as a name but as a description. Harper v.
Clayton, 84 Md. 346, 35 A. 1083, 35 L.R.A. 211.
And see Conscience.
touching deeds of arms or war, as well as pleas of life or
member. It also corrected encroachments in matters of
coat-armor, precedency, and other distinctions of families.
It is now grown entirely out of use, on account of the
feebleness of its jurisdiction and want of power to enforce
its judgments, as it could neither fine nor imprison, not
being a court of record.
COURT OF CONVOCATION. In English ecclesiastical law. A court, or assembly, comprising
all the high officials of each province and representatives of the minor clergy. It is in the nature of an ecclesiastical parliament; and, so far
as its judicial functions extend, it has jurisdiction of cases of heresy, schism, and other purely
ecclesiastical matters. An appeal lies to the king
in council. 2 & 3 Will. IV. c. 92; Cowell; Bac.
Abr. Ecclesiastical Courts, A, 1; 1 Bla. Comm.
279; 2 Steph. Com. 525, 668; 2 Burn, Eccl. Law,
18. Convocation exercises no jurisdiction at the
present day. 1 Holdsw. Hist. E. L. 373.
COURT OF CLAIMS. One of the courts of the
United States, established in 1855. U. S. v. Klein,
13 Wall., U.S., 128, 144, 20 L.Ed. 519. It consists
of a chief justice and four associates, and holds
one annual session. It is located at Washington.
Its jurisdiction extends to all claims against the
United States arising out of any contract with the
government or based on an act of congress or
regulation of the executive, and all claims referred
to it by either house of congress, as well as to
claims for exoneration by a disbursing officer. Its
judgments are, in certain cases, reviewable by the
United States supreme court. It has no equity
powers. Its decisions are reported and published.
COURT OF COUNTY COMMISSIONERS. In
some states, a court of record in each county.
Thus, in Alabama, it is composed of the judge of
probate, as principal judge, and four commissioners, who are elected at the times prescribed by
law, and hold office for four years.
This name is also given, in some of the states, either to
a special court or to the ordinary county court sitting "as
a court of claims," having the special duty of auditing and
ascertaining the claims against the county and expenses
incurred by it, and providing for their payment by appropriations out of the county levy or annual tax. Merlweather v. Muhlenburg County Court, 120 U.S. 354, 7 S.Ct.
563, 30 L.Ed. 653.
COURT OF CUSTOMS AND PATENT APPEALS.
The title given by Act Mar. 2, 1929, c. 488, § 1, 45
Stat. 1475, to a court of the United States created
by Act Aug. 5, 1909, c. 6, § 28, 36 Stat. 91, 105, and
then known as the Court of Customs Appeals, consisting of a presiding judge and four associate
judges. In patent and trade-mark cases it has the
appellate jurisdiction which prior to April 1, 1929,
was vested in the Court of Appeals of the District
of Columbia. Act Mar. 2, 1929, c. 488, § 2 (a, d) ,
45 Stat. 1476. As to its jurisdiction over appeals
from the "Customs Court," see that title.
COURT OF COMMISSIONERS OF SEWERS.
The name of certain English courts created by
commission under the great seal pursuant to the
statute of sewers (23 Hen. VIII. c. 5).
COURT OF COMMON PLEAS. In English law.
One of the four superior courts at Westminster,
which existed up to the passing of the judicature
acts. It was also styled the "Common Bench." It
was one of the courts derived from the breaking
up of the aula regis, and had exclusive jurisdiction of all real actions and of communia placita,
or common pleas, i. e., between subject and subject. It was presided over by a chief justice with
four puisne judges (later five, by virtue of 31 & 32
COURT OF DELEGATES. An English tribunal
composed of delegates appointed by royal commission, and formerly the great court of appeal
in all ecclesiastical causes. The powers of the
429
COURT OF DELEGATES
court were, by 2 & 3 Wm. IV. c. 92, transferred
to the privy council. Brown; 3 Bl. Comm. 66; 1
Holdsw. Hist. E. L. 373.
A commission of review was formerly granted, in extraordinary cases, to revise a sentence of the court of delegates, when that court had apparently been led into
material error.
COURT OF EQUITY. A court which has jurisdiction in equity, which administers justice and
decides controversies in accordance with the rules,
principles, and precedents of equity, and which
follows the forms and procedure of chancery; as
distinguished from a court having the jurisdiction, rules, principles, and practice of the common
law. Thomas v. Phillips, 4 Smedes & M., Miss.,
423.
COURT OF ERROR. An expression applied es
pecially to the court of exchequer chamber and the
house of lords, as taking cognizance of error
brought. Mozley & Whitley; 3 Steph. Comm. 333.
It is applied in some of the United States to the
court of last resort in the state; and in its most
general sense denotes any court having power to
review the decisions of lower courts on appeal,
error, certiorari, or other process. See Court of
Appeals.
COURT OF ERRORS AND APPEALS. The
court of last resort in the state of New Jersey
is so named. Formerly, the same title was given
to the highest court of appeal in New York.
COURT OF EXCHEQUER. In English law. A
very ancient court of record, set up by William
the Conqueror as a part of the aula regis, and
afterwards one of the four superior courts at
Westminster. It was, however, inferior in rank
to both the king's bench and the common pleas.
It was presided over by a chief baron and four
puisne barons. It was originally the king's treasury, and was charged with keeping the king's
accounts and collecting the royal revenues. But
pleas between subject and subject were anciently
heard there, until this was forbidden by the Articula super Chartas, (1290,) after which its jurisdiction as a court only extended to revenue
cases arising out of the non-payment or withholding of debts to the crown. But the privilege of
suing and being sued in this court was extended
to the king's accountants, and later, by the use of
a convenient fiction to the effect that the plaintiff
was the king's debtor or accountant, the court
was thrown open to all suitors in personal actions.
The exchequer had formerly both an equity side
and a common-law side, but its equity jurisdiction
was taken away by the statute 5 Vict. c. 5, (1842,)
and transferred to the court of chancery. The
judicature act (1873) transferred the business and
jurisdiction of this court to the "Exchequer Division" of the "High Court of Justice."
In Scotch law. A court which formerly had
jurisdiction of matters of revenue, and a limited
jurisdiction over cases between the crown and
its vassals where no questions of title were involved.
COURT OF EXCHEQUER CHAMBER. The
name of a former English court of appeal, intermediate between the superior courts of common
law and the house of lords. When sitting as a
court of appeal from any one of the three superior courts of common law, it was composed of
judges of the other two courts. 3 Bl.Comm. 56,
57; 3 Steph.Comm. 333, 356. By the judicature
act (1873) the jurisdiction of this court is transferred to the court of appeal.
COURT OF FACULTIES. A tribunal of the archbishop in England.
It does not hold pleas in any suits, but creates rights to
pews, monuments, and other mortuary matters. It had
also various other powers under 25 Hen. VIII. c. 2L Co.
4th Inst. 337; 2 Chit.Gen.Pr. 507.
COURT OF FIRST INSTANCE. A court of primary jurisdiction. Courts of this title may be
found in the jurisprudence of the Philippine Islands. 15 C.J. 688.
COURT OF GENERAL QUARTER SESSIONS
OF THE PEACE. In American law. A court
of criminal jurisdiction in New Jersey.
In English law. A court of criminal jurisdiction, in England, held in each county once in every
quarter of a year, but in the county of Middlesex
twice a month. 4 Steph. Comm. 317-320. When
held at other times than quarterly, the sessions
are called "general sessions of the peace." See
2 Odgers, C.L. 966.
COURT OF GENERAL SESSIONS. The name
given in some states to a court of general original jurisdiction in criminal cases.
COURT OF GREAT SESSIONS IN WALES. A
court formerly held in Wales; abolished by 11
Geo. IV. and 1 Wm. IV. c. 70, and the Welsh judicature incorporated with that of England. 3
Steph. Comm. 317, note; 3 Bla. Comm. 77.
COURT OF GUESTLING. An assembly of the
members of the Court of Brotherhood (supra) together with other representatives of the corporate
members of the Cinque Ports, invited to sit with
the mayors of the seven principal towns. Cent.
Dict.
COURT OF HIGH COMMISSION. In English
law. An ecclesiastical court of formidable jurisdiction, for the vindication of the peace and dignity of the church, by reforming, ordering, and
correcting the ecclesiastical state and persons, and
all manner of errors, heresies, schisms, abuses,
offenses, contempts, and enormities. 3 Bl. Comm.
67. It was erected by St. 1 Eliz. c. 1, and abolished by 16 Car. I, c. 11. 1 Holdsw. Hist. E. L. 375.
COURT OF HONOR. A court having jurisdiction
to hear and redress injuries or affronts to a man's
honor or personal dignity, of a nature not cognizable by the ordinary courts of law, or encroachments upon his rights in respect to heraldry, coatarmor, right of precedence, and the like. It was
one of the functions of the Court of Chivalry (q.
v.) in England to sit and act as a court of honor.
3 Bl. Comm. 104.
430
COURT OF OYER
The name is also given in some European countries to a . ceeding according to the course of the common
tribunal of army officers (more or less distinctly recognized
law and governed by its rules and principles, as
by law as a "court") convened for the purpose of inquircontrasted with a "court of equity."
ing into complaints affecting the honor of brother officers
and punishing derelictions from the code of honor and
COURT OF LODEMANAGE. An ancient court
deciding on the causes and occasions for fighting duels, in
which officers are concerned, and the manner of conductof the Cinque Ports, having jurisdiction in mariing them.
time matters, and particularly over pilots (lode-
men).
COURT OF HUSTINGS. In English law. The
county court of London, held before the mayor,
recorder, and sheriff, but of which the recorder,
is, in effect, the sole judge. No actions can be
brought in this court that are merely personal.
3 Steph.Comm. 293, n.; 449, note 1; 3 Bla.Comm.
80, n.; Madox, Hist. Exch. c. 20; Co. 2d Inst.
327. Since the abolition of all real and mixed actions except ejectment, the jurisdiction of this
court has fallen into comparative desuetude.
Pulling on Cust. Lond.
In American Law. A local court in some parts
of Virginia. Smith v. Commonwealth, 6 Grat. 696.
COURT OF MAGISTRATES AND FREEHOLDERS. In American law. The name of a court
formerly established in South Carolina for the
trial of slaves and free persons of color for criminal offenses.
COURT OF MARSHALSEA. In English law, the
court or seat of the marshal. A court originally
held before the steward and marshal of the king's
house, instituted to administer justice between the
king's domestic servants. It had jurisdiction of
all trespasses committed within the verge of the
king's court, where one of the parties was of the
royal household; and of all debts and contracts,
when both parties were of that establishment.
It was abolished by 12 & 13 Viet. c. 101, § 13.
Mozley & Whitley.
COURT OF INQUIRY. In English law. A court
sometimes appointed by the crown to ascertain
whether it be proper to resort to extreme measures against a person charged before a courtmartial. 2 Steph.Comm. 590; 1 Coler.Bla.Comm.
418, n.; 2 Brod. & B. 130. Also a court for hearing
the complaints of private soldiers. Moz. & W.
Diet.; Simmons, Cts.Mart. § 341.
In American law. Formerly, a court constituted by authority of the articles of war, invested
with the power to examine into the nature of any
transaction of, or accusation or imputation
against, any officer or soldier, when demanded by
him. Rev.St. § 1342, arts. 115, 116. Repealed by
Act June 4, 1920, c. 227, § 4, 41 Stat. 812.
COURT OF NISI PRIUS. In American law.
Though this term is frequently used as a general
designation of any court exercising general, orig..
inal jurisdiction in civil cases, (being used interchangeably with "trial-court,") it belonged as a
legal title only to a court which formerly existed
in the city and county of Philadelphia, and which
was presided over by one of the judges of the supreme court of Pennsylvania. This court was
abolished by the constitution of 1874. See Courts
of Assize and Nisi Prius.
They were not strictly courts, having no power to try
and determine guilt or innocence. They were rather
agencies created by statute to investigate facts and report
thereon. They could not compel the attendance of witnesses nor require them to testify. Davis, Mil. Law 220.
COURT OF ORDINARY. In some of the United
States (e. g., Georgia) the name given to the probate or surrogate's court, or the court having the
usual jurisdiction in respect to the proving of
wills and the administration of decedents' estates.
Veach v. Rice, 131 U.S. 293, 9 S.Ct. 730, 33 L.Ed.
163. Such a court formerly existed in New Jersey, South Carolina, and Texas. 2 Kent 409.
COURT OF JUSTICE SEAT. In English law.
The principal of the forest courts. Called also
Court of the Chief Justice in Eyre (q. v.).'
COURT OF JUSTICIARY. A Scotch court of
general criminal jurisdiction of all offenses committed in any part of Scotland, both to try causes
and to review decisions of inferior criminal courts.
It is composed of five lords of session with the
lord president or justice-clerk as president. It
also has appellate jurisdiction in civil causes involving small amounts. An appeal lies to the
house of lords.
COURT OF KING'S BENCH. In English law.
The supreme court of common law in the kingdom, now merged in the high court of justice
under the judicature act of 1873, § 16.
It was one of the successors of the curia regis and
received its name, it is said, because the king formerly sat
in it in person. During the reign of a queen it was called
the Queen's Bench, and during Cromwell's Protectorate it
was called the Upper Bench.
COURT OF LAW. In a wide sense, any duly constituted tribunal administering the laws of the
state or nation; in a narrower sense, a court pro-
COURT OF ORPHANS. In English law. The
court of the lord mayor and aldermen of London,
which has the care of those orphans whose parent
died in London and was free of the city. It is
now said to be fallen into disuse. 2 Steph. Comm.
313; Pull. Cust. Lond. 196, Orphans' Court.
In American law. In Pennsylvania (and perhaps some other states) the name "orphans'
court" is applied to that species of tribunal which
is elsewhere known as the "probate court" or
"surrogate's court."
COURT OF OYER AND TERMINER. In English
law. A court for the trial of cases of treason
and felony. The commissioners of assise and
nisi prius are judges selected by the king and appointed and authorized under the great seal, including usually two of the judges at Westminster,
and sent out twice a year into most of the counties of England, for the trial (with a jury of the
county) of causes then depending at Westminster,
431
COURT OF OYER
both civil and criminal. They sit by virtue of
several commissions, each of which, in reality,
constitutes them a separate and distinct court.
The commission of oyer and terminer gives them
authority for- the trial of treasons and felonies;
that of general gaol delivery empowers them to
try every prisoner then in gaol for ,whatever offense; so that, altogether, they possess full criminal jurisdiction.
In American law. This name is generally used
(sometimes, with additions) as the title, or part
of the title, of a state court of criminal jurisdiction, or of the criminal branch of a court of general jurisdiction, being commonly applied to such
courts as may try felonies, or the higher grades
of crime. Such courts exist in Delaware and
Pennsylvania. They were abolished in New York
and New Jersey in 1895.
COURT OF OYER AND TERMiNER AND
ERAL GAOL (or JAIL) DELIVERY, In American law. A court of criminal juriftd.iCtiOn in the
state of Pennsylvania. It is held ta the same time
with the court of quarter sessions, as a general
rule, and by the same judges. Const.Pa. art. 5,
1 1; 17 P.S. §§ 371, 391, 471.
In English law. A tribunal for the examination and trial of criminals. 3 Steph. Comm. 352.
COURT OF PALACE AT WESTMINSTER. This
court had jurisdiction of personal actions arising
within twelve miles of the palace at Whitehall.
Abolished by 12 & 13 Vict. c. 101, 3 Steph. Comm.
317, note. See Court of the Steward and Marshal.
COURT OF PASSAGE. An inferior court, possessing a very ancient jurisdiction over causes
of action arising within the borough of Liverpool.
It appears to have been also called the "Borough.
Court of Liverpool." It has the same jurisdiction in admiralty matters as the Lancashire county court. Rosc. Adm. 75.
COURT OF PECULIARS. A spiritual court in
England, being a branch of, and annexed to, the
Court of Arches. It has a jurisdiction over all
those parishes dispersed through the province of
Canterbury, in the midst of other dioceses, which
are exempt from the ordinary's jurisdiction, and
subject to the metropolitan only. All ecclesiastical causes arising within these peculiar or exempt
jurisdictions are originally cognizable by this
court, from which an appeal lies to the Court of
Arches. 3 Steph. Comm. 431; 4 Reeve, Eng. Law,
104. Most of such courts have been abolished by
legislation. 1 Holdsw. Hist. Eng. Law 352. See,
also, Arches Court.
COURT OF PIEPOUDRE. ( Also spelled Pipowder, Pie Powder, Py-Powder, Piedpoudre, etc.)
The lowest (and most expeditious) of the courts
of justice known to the older law of England. It
is supposed (by Cowell and Blount) to have been
so called from the dusty feet of the suitors. For
another conjecture as to the origin of the name,
see Co. 4th Inst. 472. It was a court of record incident to every fair and market, was held by the
steward, and had jurisdiction to administer justice for all commercial injuries and minor offenses done in that same fair or market, (not a
preceding one.) Inderwick, King's Peace 105.
An appeal lay to the courts at Westminster. This
court long ago fell into disuse. 3 Bl. Comm. 32;
Barrington, Stat. 337; 3 Steph. Comm. 317, n.;
Skene, de verb. sig. Pede pulverosus; Bracton 334;
22 L.Q.R. 244; 1 Holdsw. Hist. E. L. 309. See,
however, Odgers, C. L. 1021,
COURT OF PLEAS. A court of the county palatine of Durham, having a local common-law jurisdiction. It was abolished by the judicature act,
which transferred its jurisdiction to the high
court. Jud.Act 1873, § 16; 3 Bl.Comm. 79.
COURT OF POLICIES OF ASSURANCE. A
court established by statute 43 Eliz. c. 12, to determine in a summary way all causes between
merchants, concerning policies of insurance,
Crabb, Eng. Law, 503. The court was formally
abolished by stat. 26 & 27 Vict. c. 125. 3 Bl.Comm,
74; 3 Steph. Comm. 317, n.
COURT OF PRIVATE LAND CLAIMS. A federal court created by act of Congress in 1891 (26
Stat. 854), to hear and determine claims by private parties to lands within the public domain,
where such claims originated under Spanish or
Mexican grants, and had not already been confirmed by Congress or otherwise adjudicated.
The existence and authority of this court were
to cease and determine at the end of the year
1895.
COURT OF PROBATE. In English law. The
name of a court established in 1857, under the
probate act of that year, (20 & 21 Viet, c. 77,) to
be held in London, to which court was transferred the testamentary jurisdiction of the ecclesiastical courts. 2 Steph. Comm. 192. By the judicature acts, this court is merged in the high court
of justice.
In American law. A court having jurisdiction over the probate of wills, the grant of administration, and the supervision of the management
and settlement of the estates of decedents, including the collection of assets, the allowance of
claims, and the distribution of the estate. In
some states the probate courts also have jurisdiction of the estates of minors, including the ap
pointment of guardians and the settlement of
their accounts, and of the estates of lunatics, habitual drunkards, and spendthrifts. Pons v. Pons,
132 La. 370, 61 So. 406, 407. And in some states
these courts possess a limited jurisdiction in civil,
and criminal cases. They are also called in some
jurisdictions "orphans' courts" and "surrogate's
courts."
COURT OF PYPOWDER, PY-POWDER, or PYPOWDERS. See Court of Piepoudre.,
COURT OF QUARTER SESSIONS OF THE
PEACE. In American law. A court of criminal
jurisdiction in the state of Pennsylvania, having
power to try misdemeanors, and exercising cer-
432
COURT OF THE CORONER
tain functions of an administrative nature. There
is one such court in each county of the state. Its
sessions are, in general, held at the same time
and by the same judges as the court of oyer and
terminer and general jail delivery. Const.Pa.
art. 5, § 1; 17 P.S. §§ 331, 361.
COURT OF QUEEN'S BENCH. See Court of
King's Bench.
COURT OF RECORD. See Court, supra.
COURT OF REGARD. In English law. One of
the forest courts, in England, held every third
year, for the lawing or expeditation of dogs, to
prevent them from running after deer. It is now
obsolete. 3 Steph. Comm. 440; 3 Bl. Comm. 71,
72.
COURT OF SESSION. The name of the highest
court of civil jurisdiction in Scotland. It was
composed of fifteen judges, now of thirteen. It
sits in two divisions. The lord president and three
ordinary lords form the first division; the lord
justice clerk and three other ordinary lords form
the second division. There are five permanent
lords ordinary attached equally to both divisions;
the last appointed of whom officiates on the bills,
i. e., petitions preferred to the court during the
session, and performs the other duties of junior
lord ordinary. The chambers of the parliament
house in which the first and second divisions hold
their sittings are called the "inner house;" those
in which the lords ordinary sit as single judges to
hear motions and causes are collectively called
the "outer house." The nomination and appointment of the judges is in the crown. Wharton.
COURT OF SESSIONS. Courts of criminal jurisdiction existing in California, New York, and
one or two other of the United States.
COURT OF SHEPWAY. A court held before the
lord warden of the Cinque Ports. A writ of error lay from the mayor and jurats of each port
to the lord warden in this court, and thence to the
queen's bench. The civil jurisdiction of the Cinque Ports is abolished by 18 & 19 Vict. c. 48.
COURT OF SPECIAL SESSIONS. A generic
term, applicable to those courts which have no
stated terms and are not continuous, but which are
organized only for the trial of each particular case
and become functus officio when judgment is rendered therein. People v. Wagner, 45 N.Y.S.2d
314, 316.
COURT OF STANNARIES. In English law. A
court established in Devonshire and Cornwall, for
the administration of justice among the miners
and tinners, that they might not be drawn away
from their business to attend suits in distant
courts. The stannary court is a court of record,
with a special jurisdiction. 3 Bl. Comm. 79.
COURT OF STAR CHAMBER. This was an English court of very ancient origin, but new-modeled.
by St. 3 Hen. VII. c. 1, and 21 Hen. VIII. c. 20, consisting of divers lords, spiritual and temporal, being privy councillors, together with two judges of
Black's Law Dictionary Revised 4th Ed.-28
the courts of common law, without the intervention of any jury. The jurisdiction extended legally over riots, perjury, misbehavior of sheriffs, and
other misdemeanors contrary to the laws of the
land; yet it was afterwards stretched to the asserting of all proclamations and orders of state,
to the vindicating of illegal commissions and
grants of monopolies; holding for honorable that
which it pleased, and for just that which it profited, and becoming both a court of law to determine civil rights and a court of revenue to enrich
the treasury. It was finally abolished by St. 16
Car. I, c. 10, to the general satisfaction of the
whole nation. Brown.
COURT OF SURVEY. A court for the hearing
of appeals by owners or masters of ships, from
orders for the detention of unsafe ships, made by
the English board of trade, under the merchant
shipping act, 1876, § 6.
COURT OF SWEINMOTE (spelled, also, Swainmote, Swain-gemote; Saxon, swang, an attendant, a freeholder, and mote or gemote, a meeting).
One of the old forest courts, held before the verderers, as judges, by the steward, thrice in every
year,—the sweins or freeholders within the forest
composing the jury. This court had jurisdiction
to inquire into grievances and oppressions committed by the officers of the forest, and also to receive and try presentments certified from the
court of attachments, certifying the cause, in turn,.
under the seals of the jury, in case of conviction,
to the court of justice seat for the rendition of
judgment. Cowell; 3 Bla. Corn. 71, 72; 3 Steph.
Corn. 317, n. See Inderwick, King's Peace 150;
Forest Laws.
COURT OF THE CHIEF JUSTICE IN EYRE.
The highest of the courts of the forest, held every
three years, by the chief justice, to inquire of purprestures or encroachments, assarts, or cultivation of forest land, claims to franchises, parks,
warrens, and vineyards in the forest, as well as
claims of the hundred, claims to the goods of felons found in the forest, and any other civil questions that might arise within the forest limits.
But it had no criminal jurisdiction, except of offenses against the forest laws. It was called also
the court of justice seat. Inderwick, King's Peace.
Since the Restoration the forest laws have fallen
into disuse. The office was abolished in 1817.
COURT OF THE CLERK OF THE MARKET.
An English court of inferior jurisdiction held in
every fair or market for the punishment of misdemeanors committed therein. The jurisdiction
over weights and measures formerly exercised
was taken away by stat. 5 & 6 Will. IV. c. 637
9 M. & W. 747. 4 Steph. Comm. 323.
COURT OF THE CORONER. In English law. A
court of record, to inquire, when any one dies in
prison, or comes to a violent or sudden death, by
what manner he came to his end. 4 Steph. Comm.
323; 4 Bl. Comm. 274. Now generally known as
an inquest. See Coroner.
433
COURT OF TILE COUNTIES
COURT OF THE COUNTIES PALATINE. In
English law. A species of private court which
formerly appertained to the counties palatine of
Lancaster and Durham. 1 Holdsw. Hist. E. L. 47;
1 Steph. Hist. C. L. 138; Coke, 4 Inst. 239; 1
Harg. L. Tr. 378.
COURT OF THE DUCHY OF LANCASTER. A.
court of special jurisdiction, held before the chancellor of the duchy or his deputy, concerning all
matters of equity relating to lands holden of the
king in right of the duchy of Lancaster. 3 Bl.
Comm. 78.
COURT OF THE EARL MARSHAL. In the reign
of William the Conqueror the marshal was next
in rank to the constable, in command of the army.
When the constable's office ceased, his duties devolved upon the earl marshal. The military
Court of the Constable came to be known as the
Marshal's Court, or, in its modern form, CourtMartial. Aside from its criminal jurisdiction, it
had much to do with questions relating to fiefs
and military tenures, though not to property
rights involved therein. Davis, Mil. Laws of U. S.
14. See Hale, Hist. C. L. 36; Grose, Mil. Antiq.
See Court of Chivalry; Courts-Martial; Constable
of England.
COURT OF THE LORD HIGH ADMIRAL. In
the earlier part of the 14th century, the Admiral
possessed a disciplinary jurisdiction over his fleet.
After 1340 it is reasonable to suppose that the
Admiral could hold an independent court and administer justice in piracy and other maritime
cases. There were at first several admirals and
several courts. From the early 15th century
there was one Lord High Admiral and one Court
of Admiralty. 1 Holdsw. Hist. E. L. 313.
COURT OF THE LORD HIGH STEWARD. In
English law. A court instituted for the trial, during the recess of parliament, of peers indicted for
treason or felony, or for misprision of either.
This court is not a permanent body, but is created in modern times, when occasion requires, and
for the time being, only; and the lord high stew
ard, so constituted, with such of the temporal
lords as may take the proper oath, and act, constitute the court.
All peers who have a right to sit and vote in Parliament
must be summoned. They are the sole judges of fact, and
the majority, which must consist of twelve at least,
decides. The Lord High Steward has a vote, and is judge
of all matters of law.
COURT OF THE LORD HIGH STEWARD OF
THE UNIVERSITIES. In English law. A court
constituted for the trial of scholars or privileged
persons connected with the university at Oxford
or Cambridge who are indicted for treason, felony,
or mayhem. 3 Bla. Comm. 83; 4 id. 277; 1 Steph.
Comm. 67; 3 id. 341; 4 id. 261.
COURT OF THE OFFICIAL PRINCIPAL. This
court, the Court of the "Official Principal" of the
Archbishop of Canterbury, is more commonly
called the Arches Court, or Court of the Arches.
See Arches Court.
COURT OF THE STEWARD AND MARSHAL.
A high court, formerly held in England by the
steward and marshal of the king's household, having jurisdiction of all actions against the king's
peace within the bounds of the household for
twelve miles, which circuit was called the "verge."
Crabb, Eng. Law, 185. It had also jurisdiction
of actions of debt and covenant, where both the
parties were of the household. 2 Reeve, Eng.Law,
235, 247. This court was created by Charles I.,
and abolished in 1849. It was held in the borough of Southwark, and was called also the "palace court," having jurisdiction of all personal actions arising within twelve miles of the royal palace of Whitehall, exclusive of London.
COURT OF THE STEWARD OF THE KING'S
HOUSEHOLD. In English law. A court which
had jurisdiction of all cases of treason, misprision
of treason, murder, manslaughter, bloodshed, and
other malicious strikings whereby blood is shed,
occurring in or within the limits of any of the palaces or houses of the king, or any other house
where the royal person is abiding. It was created
by statute 33 Hen. VIII, c. 12, but long ago fell
into disuse. 4 Bl. Comm. 276, 277, and notes.
COURT OF WARDS AND LIVERIES. A court
of record, established in England in the reign of
Henry VIII. For the survey and management of
the valuable fruits of tenure, a court of record was
created by St. 32 Hen. VIII. c. 46, called the "Court
of the King's Wards." To this was annexed, by
St. 33 Hen. VIII, c. 22, the "Court of Liveries;" so
that it then became the "Court of Wards and Liveries." 4 Reeve, Eng. Law, 258. This court was
not only for the management of "wards," properly so called, but also of idiots and natural fools
in the king's custody, and for licenses to be granted to the king's widows to marry, and fines to be
made for marrying without his license. Id. 259.
It was abolished by St. 12 Car. II. c. 24. Crabb,
Eng. Law, 468; 4 Reeve, Hist. E. L. 259; Crabb,
Hist. E. L. 468; 1 Steph. Com. 183; 4 id. 40; 2
Bla. Corn. 68; 3 id. 258.
COURT ROLLS. The rolls of a manor, containing all acts relating thereto. While belonging to
the lord of the manor, they are not in the nature
of public books for the benefit of the tenant.
COURTS OF APPEALS. A system of courts of
the United States (one in each circuit) created by
act of congress, composed of three or more judges
(provision being made also for the allotment of
the justices of the supreme court among the circuits), and having appellate jurisdiction as defined by statute. 28 U.S.C.A. §§ 41-48, 1291-1294.
Court of Appeals of the District of Columbia was held to
be Circuit Court of Appeals, Swift & Co. v. U. S., App.D.C.,
276 U. S. 311, 48 S.Ct. 311, 313, 72 L. Ed. 587.
COURTS OF ASSIZE AND NISI PRIUS. Courts
in England composed of two or more commissioners, called "judges of assize," (or of "assize
and nisi prius,") who are twice in every year
sent by the king's special commission, on circuits
all round the kingdom, to try, by a jury of the
respective counties, the truth of such matters of
434
COUSIN
fact as are there under dispute in the courts of
Westminster Hall. 3 Steph. Comm. 421, 422; 3
Bi. Comm. 57; 2 Odger, Corn. Law, 985.
COURTS OF CINQUE PORTS. In English law.
Courts of limited local jurisdiction formerly held
before the mayor and jurats (aldermen) of the
Cinque Ports. Their jurisdiction was not affected
by the Judicature Act of 1873. 1 Holdsw. Hist.
E. L. 305; 3 Bla. Comm. 79; 2 Steph. Comm. 499.
COURTS OF THE FOREST. Courts held for the
enforcement of the forest laws. Inderwick,
King's Peace. See Forest Courts.
COURTS OF THE FRANCHISES. Jurisdictions
in the early Norman period which rested upon
royal grants—often assumed. Edward I., in 1274,
sent out commissioners to enquire by what warrant different landowners were exercising their
Jura regalia. There were many varieties of lesser
franchises. Some of these franchises were recognized as existing by the County Courts Acts, 1846–
1888. 1 Holdsw. Hist. E. L. 61.
COURTS OF PRINCIPALITY OF WALES. A.
species of private courts of a limited though extensive jurisdiction, which, upon the thorough
reduction of that principality and the settling of
its polity in the reign of Henry VIII, were erected all over the country. These courts, however,
have been abolished by 1 Wm. IV. c. 70; the principality being now divided into two circuits, which
the judges visit in the same manner as they do
the circuits in England, for the purpose of disposing of those causes which are ready for trial.
Brown.
COURTS OF REQUEST. Inferior courts, in England, having local jurisdiction in claims for small
debts, established in various parts of the kingdom
by special acts of parliament. They were abolished in 1846, and the modern county courts (q.
v.) took their place. 3 Steph. Comm. 283, 449;
1 Holdsw. H. E. L. 208; Bac. Abridg.; Select Cases
in the Court of Requests (Selden Society, Publ.
vol. 12).
COURTS OF THE UNITED STATES comprise
the following: The senate of the United States,
sitting as a court of impeachment; the supreme
court; the courts of appeals; the district courts;
the court of claims; the court of customs and
patent appeals; the customs court; the tax court
of the United States; and provisional courts;
courts of territories and outlying possessions.
COURTS OF WESTMINSTER HALL. The superior courts, both of law and equity, were for
centuries fixed at Westminster, an ancient palace
of the monarchs of England. Formerly, all the
superior courts were held before the king's capital justiciary of England, in the aula regis, or
such of his palaces wherein his royal person resided, and removed with his household from one
end of the kingdom to another. This was found
to occasion great inconvenience to the suitors to
remedy which it was made an article of the great
charter of liberties, both of King John and King
Henry III., that "common pleas should no longer
follow the king's court, but be held in some certain place," in consequence of which they have
ever since been held (a few necessary removals
in times of the plague excepted) in the palace of
Westminster only. The courts of equity also sit.
at Westminster, nominally, during term time, although, actually, only during the first day of
term, for they generally sit in courts provided
for the purpose in, or in the neighborhood of, Lincoln's Inn. Brown.
COURTESY. See Curtesy.
COURTYARD. A corrupted form of "curtilage,"
signifying a space of land about a dwelling house,
which not only might be inclosed, but within
which appurtenant buildings and structures might
be erected. In re Lafayette Ave. in City of New
York, 118 Misc.Rep. 161, 193 N.Y.S. 802, 804.
COUSIN. Kindred in the fourth degree, being the
issue (male or female) of the brother or sister of
one's father or mother. Harris v. Harris, 97 N.
J.Eq. 190, 127 A. 108, 109; In re Hering's Estate,
137 Misc. 867, 244 N.Y.S. 138.
Those who descend from the brother or sister or the
father of the person spoken of are called "paternal cousins ;" "maternal cousins" are those who are descended
from the brothers or sisters of the mother. Cousins-german are first cousins. Sanderson v. Bayley, 4 Myl. & C. 59.
In . English writs, commissions, and other formal instruments issued by the crown, the word signifies any peer of
the degree of an earl. The appellation is as ancient as the
reign of Henry IV., who, being related or allied to every
earl then in the kingdom, acknowledged that connection in
all his letters and public acts ; from which the use has
descended to his successors, though the reason has long ago
failed. Mozley & Whitley.
First cousins. Cousins-german; the children
of, one's uncle or aunt. Sanderson v. Bayley, 4
Mylne & C. 59.
COURTS OF THE UNIVERSITIES of Oxford and
Cambridge have jurisdiction in all personal actions to which any member or servant of the respective university is a party, provided that the
cause of action arose within the liberties of the
university, and that the member or servant was
resident in the university when it arose, and when
the action was brought. 3 Steph.Comm. 299; St.
25 & 26 Vict. c. 26, § 12, St. 19 & 20 Vict. c. 17.
Each university court also has a criminal jurisdiction in all offenses committed by its members.
4 Steph. Comm. 325.
Second cousins. Persons who are related to
each other by descending from the same greatgrandfather or great-grandmother. The children
of one's first cousins are his second cousins.
These are sometimes called "first cousins once removed." Slade v. Fooks, 9 Sim. 387; Corporation of Bridgnorth v. Collins, 15 Sim. 541.
Quarter cousin. Properly, a cousin in the fourth
degree; but the term has come to express any
remote degree of relationship, and even to bear
an ironical signification in which it denotes a
very trifling degree of intimacy and regard.
Often corrupted into "cater" cousin.
435
COUSINAGE
COUSINAGE. See Cosinage.
COUSTOM. (Fr. Coutum.) Custom; duty; toll;
tribute. 1 Bl. Comm. 314.
COUSTOUMIER. (Otherwise spelled "Coustumier" or "Coutumier.") In old French law. A
collection of customs, unwritten laws, and forms
of procedure. Two such volumes are of especial
i mportance in juridical history, viz., the Grand
Coustumier de Normandie, and the Coutumier de
France or Grand Coutumier.
COUTHUTLAUGH. A person who willingly and
knowingly received an outlaw, and cherished or
concealed him; for which offense he underwent
the same punishment as the outlaw himself.
Bract. 128b ; Spelman.
COUVERTURE. In French law. The deposit
("margin") made by the client in the hands of the
broker, either of a sum of money or of securities,
in order to guaranty the broker for the payment of
the securities which he purchases for the client.
Arg.Fr.Merc.Law, 555.
COVENABLE. A French word signifying convenient or suitable; as covenably endowed. Anciently written "convenable." Termes de la Ley.
COVENANT.
Practice
The name of a common-law form of action ex
contractu, which lies for the recovery of damages
for breach of a covenant, or contract under seal.
Stickney v. Stickney, 21 N.H. 68; Utilities Production Corporation v. Southwestern Natural Gas Co.,
Del., 1 Terry 401, 11 A.2d 275, 276.
Law of Contracts
An agreement, convention, or promise of two or
more parties, by deed in writing, signed, sealed,
and delivered, by which either of the parties
pledges himself to the other that something is
either done or shall be done, or stipulates for the
truth of certain facts. Commonwealth v. Robin.
son, 1 Watts, Pa., 160; Kent v. Edmondston, 49
N.C. 529; Schram v. Coyne, C.C.A.Mich., 127 F.2d
205, 209; Sabin v. Hamilton, 2 Ark. 485, 490 (see,
however, the later case of Dyer v. Gill, 32 Ark.
410, pointing out that by virtue of statute in Arkansas, the distinction between sealed and unsealed instruments, with reference to contracts
between individuals, has been abolished).
An agreement between two or more parties, reduced to
writing and executed by a sealing and delivery thereof,
whereby some of the parties named therein engage, or
one of them engages, with the other, or others, or some of
them, therein also named, that some act hath or hath not
already been done, or for the performance or non-performance of some specified duty. De Bolle v. Insurance Co., 4
Whart., Pa., 71, 33 Am.Dec. 38.
In common parlance, any agreement, whether
under seal or not. 15 C.J. 1209; 7 R.C.L. 1084;
Jenkins v. John Taylor Dry Goods Co., 352 Mo.
660, 179 S.W.2d 54, 58.
In effect, this has become the legal meaning in many
states, in which private seals have been abolished by statute. For a number of these state statutes, see 66 L.R.A.
686, 687. In those states it is commonly held that the affixing of a seal, when unnecessary to the validity of the
instrument, has no effect, and may be disregarded. 24
R.C.L. 689. "Seals are a relic of that period when men, as
a rule, could not write," and a covenant may "be created
in this state [Georgia] by a writing not under seal."
Atlanta, K. & N. Ry. Co. v. McKinney, 124 Ga. 929, 53 S.E.
701, 703, 6 L.R.A.,N.S., 436.
Classification
Covenants may be classified according to several
distinct principles of division. According as one or
other of these is adopted, they are:
Express or implied. The former being those
which are created by the express words of the
parties to the deed declaratory of their intention,
while implied covenants are those which are inferred by the law from certain words in a deed
which imply (though they do not express) them.
Express covenants are also called covenants "in
deed," as distinguished from covenants "in law."
McDonough v. Martin, 88 Ga. 675, 16 S.E. 59, 18 L.
R.A. 343; Garstang v. Davenport, 90 Iowa 359, 57
N.W. 876.
Dependent, concurrent, and independent. Covenants are either dependent, concurrent, or mutual
and independent. The first depends on the prior
performance of some act or condition, and, until
the condition is performed, the other party is
not liable to an action on his covenant. In the
second, mutual acts are to be performed at the
same time; and if one party is ready, and offers
to perform his part, and the other neglects or
refuses to perform his, he who is ready and offers
has fulfilled his engagement, and may maintain
an action for the default of the other, though it
is not certain that either is obliged to do the first
act. The third sort is where either party may recover damages from the other for the injuries
he may have received by a breach of the covenants in his favor; and it is no excuse for the
defendant to allege a breach of the covenants on
the part of the plaintiff. Bailey v. White, 3 Ala.
330; Gray v. Smith, C.C.Cal., 76 F. 534; Lowery v.
May, 213 Ala. 66, 104 So. 5, 8; Roberts v. Steelman, C.C.A.N.J., 1 F.2d 180, 182..
Mutual and independent covenants are such as do not go
to the whole consideration on both sides, but only to a
part, and where separate actions lie for breaches on either
side to recover damages for the injury sustained by breach.
Lowery v. May, 213 Ala. 66, 104 So. 5, 8; Big Run Coal Co.
v. Employers' Indemnity Co., 163 Ky. 596, 174 S.W. 25, 26.
Covenants are dependent where performance by one party is conditioned on and subject to performance by the
other, and in such case the party who seeks performance
must show performance or a tender or readiness to perform on his part; but covenants are independent when
actual performance of one is not dependent on another, and
where, in consequence, the remedy of both sides is by
action. Roberts v. Steelman, C.C.A.N.J., 1 F.2d 180, 182.
Principal and auxiliary. The former being those
which relate directly to the principal matter of the
contract entered into between the parties; while
auxiliary covenants are those which do not relate directly to the principal matter of contract
between the parties, but to something connected
with it.
436
COVENANT
Inherent and collateral. The former being such
as immediately affect the particular property,
while the latter affect some property collateral
thereto or some matter collateral to the grant or
lease. Shep.Touch. 161.
•
A covenant inherent is one which is conversant about the
land, and knit to the estate in the land; as, that the thing
demised shall be quietly enjoyed, shall be kept in repair,
or shall not be aliened. A covenant collateral is one which
is conversant about some collateral thing that doth nothing at all, or not so immediately, concern the thing granted; as to pay a sum of money in gross, etc.
Joint or several. The former bind both or all
the covenantors together; the latter bind each of
them separately. A covenant may be both joint
and several at the same time, as regards the covenantors; but, as regards the covenantees, they
cannot be joint and several for one and the same
cause, (5 Coke, 19a,) but must be either joint or
several only. Brown. See Capen v. Barrows, 1
Gray, Mass., 379; In re Slingsby, 5 Coke, 18b.
Covenants are usually joint or several according as the
interests of the covenantees are such; but the words of the
covenant, where they are unambiguous, will decide,
although, where they are ambiguous the nature of the
interests as being joint or several is left to decide.
General or specific. The former relate to land
generally and place the covenantee in the position
of a specialty creditor only; the latter relate to
particular lands and give the covenantee a lien
thereon. Brown.
Executed or executory. The former being such
as relate to an act already performed; while the
latter are those whose performance is to be future. Shep.Touch. 161.
Affirmative or negative. The former being
those in which the party binds himself to the existence of a present state of facts as represented
or to the future performance of some act; while
the latter are those in which the covenantor
obliges himself not to do or perform some act.
Declaratory or obligatory. The former being
those which serve to limit or direct uses; while
the latter are those which are binding on the party
himself. 1 Sid. 27; 1 Keb. 337.
Real and personal. A real covenant is one which
binds the heirs of the covenantor and passes to
assignees or purchasers; a covenant the obligation of which is so connected with the realty that
he who has the latter is either entitled to the benefit of it or is liable to perform it; a covenant
which has for its object something annexed to,
or inherent in, or connected with, land or other
real property, and runs with the land, so that
the grantee of the land is invested with it and
may sue upon it for a breach happening in his
time. 4 Kent, Comm. 470; 2 Bl.Comm. 304; Chapman v. Holmes, 10 N.J.Law, 20; Skinner v. Mitchell, 5 Kan.App. 366, 48 P. 450; Oil Co. v. Hinton,
159 Ind. 398, 64 N.E. 224; Davis v. Lyman, 6 Conn.
249.
In the old books, a covenant real is also defined to be
a covenant by which a man binds himself to pass a thing
real, as lands or tenements. Termes de la Ley; 3 Bl.
Comm. 156; Shep.Touch. 161. A personal covenant, on the
other hand, is one which, instead of being a charge upon
real estate of the covenantor, only binds himself and his
personal representatives in respect to assets. 4 Kent,
Comm. 470; Carter v. Denman, 23 N.J.Law, 270; Hadley
v. Bernero, 97 Mo.App. 314, 71 S.W. 451. The phrase may
also mean a covenant which is personal to the covenantor,
that is, one which he must perform in person, and cannot
procure another person to perform for him. De Sanno v.
Earle, 273 Pa. 265, 117 A. 200, 202; Pearson v. Richards,
106 Or. 78, 211 P. 167, 171. "Real covenants" relate to
realty and have for their main object some benefit thereto,
inuring to benefit of and becoming binding on subsequent
grantees, while "personal covenants" do not run with land.
Bank of Hoxie v. Meriwether, 166 Ark. 39, 265 S.W. 642,
645. Very considerable confusion exists among the authorities in the use of the term real covenants. The definition
of Blackstone which determines the character of covenants
from the insertion or noninsertion of the word "heir" by
the covenantor, is pretty generally rejected.
Transitive or intransitive. The former being
those personal covenants the duty of performing
which passes over to the representatives of the
covenantor; while the latter are those the duty
of performing which is limited to the covenantee
himself, and does not pass over to his representative. Bac.Abr.Cov.
Disjunctive covenants. Those which are for the
performance of one or more of several things at
the election of the covenantor or covenantee, as
the case may be. Platt, Co y . 21.
Absolute or conditional. An absolute covenant
is one which is not qualified or limited by any condition.
Other Compound and Descriptive Terms
Continuing covenant. One which indicates or
necessarily implies the doing of stipulated acts
successively or as often as the occasion may require; as, a covenant to pay rent by installments,
to keep the premises in repair or insured, to cultivate land, etc. McGlynn v. Moore, 25 Cal. 395.
Full covenants. As this term is used in American law, it includes the following: The covenants
for seisin, for right to convey, against incumbrances, for quiet enjoyment, sometimes for further assurance, and almost always of warranty,
this last often taking the place of the covenant for
quiet enjoyment, and indeed in many states being
the only covenant in practical use. Rawle, Coy.
for Title, § 21.
Mutual covenants. A mutual covenant is one
where either party may recover damages from the
other for the injury he may have received from a
breach of the covenants in his favor. Bailey v.
White, 3 Ala. 330.
Separate covenant. A several covenant; one
which binds the several covenantors each for himself, but not jointly.
Usual covenants. An agreement on the part of
a seller of real property to give the usual covenants binds him to insert in the grant covenants of
"seisin," "quiet enjoyment," "further assurance,"
"general warranty," and "against incumbrances."
Wilson v. Wood, 17 N.J.Eq. 216, 88 Am.Dec. 231;
Drake v. Barton, 18 Minn. 467, Gil. 414.
437
COVENANT
The result of the authorities appears to be that in a case
where the agreement is silent as to the particular covenants to be inserted in the lease, and provides merely for
the lease containing "usual covenants," or, which is the
same thing, in an open agreement without any reference
to the covenants, and there are no special circumstances
justifying the introduction of other covenants, the following are the only ones which either party can insist upon,
namely; Covenants by the lessee (1) to pay rent; (2)
to pay taxes, except such as are expressly payable by the
landlord; (3) to keep and deliver up the premises in
repair; and (4) to allow the lessor to enter and view the
state of repair; and the usual qualified covenant by the
lessor for quiet enjoyment by the lessee. 7 Ch.Div. 561.
Specific Covenants
Covenants against incumbrances. A covenant
that there are no incumbrances on the land conveyed; a stipulation against all rights to or interests in the land which may subsist in third
persons to the diminution of the value of the estate granted. Bank v. Parisette, 68 Ohio St. 450,
67 N.E. 896; Shearer v. Ranger, 22 Pick., Mass:,
447; Matzger v. Arcade Building & Realty Co.,
102 Wash. 423, 173 P. 47.
Covenant for further assurance. An undertaking, in the form of a covenant, on the part of the
vendor of real estate to do such further acts for
the purpose of perfecting the purchaser's title
as the latter may reasonably require. This covenant is deemed of great importance, since it relates both to the vendor's title of and to the instrument of conveyance to the vendee, and operates as well to secure the performance of all
acts necessary for supplying any defect in the
former as to remove all objections to the sufficiency and security of the latter. Platt, Cov.; Rawle,
Co y . §§ 98, 99. See Sugd.Vend. 500; Armstrong v.
Darby, 26 Mo. 520.
Covenant for quiet enjoyment. An assurance
against the consequences of a defective title, and
of any disturbances thereupon. Platt, Cov. 312;
Rawle, Co y . 125. Gulf Refining Co. v. Fetschan,
C.C.A.Ohio, 130 F.2d 129, 132.
A covenant that the tenant or grantee of an estate shall
enjoy the possession of the premises in peace and without
disturbance by hostile claimants. Poposkey v. Munkwitz,
68 Wis. 322, 32 N.W. 35, 60 Am.Rep. 858; Stewart v. Drake,
9 N.J.Law, 141; Christy v. Bedell, 10 Kan. App. 435, 61 P.
1095.
Covenants for title. Covenants usually inserted
in a conveyance of land, on the part of the grantor, and binding him for the completeness, security, and continuance of the title transferred to
the grantee. They comprise "covenants for seisin,
for right to convey, against incumbrances, or quiet
enjoyment, sometimes for further assurance, and
almost always of warranty." Rawle, Cov. § 21.
Covenants in gross. Such as do not run with
the land.
Covenant not to sue. A covenant by one who
had a right of action at the time of making it
against another person, by which he agrees not to
sue to enforce such right of action. Pacific States
Lumber Co. v. Bargar, C.C.A.Or., 10 F.2d 335, 337;
McDonald v. Goddard Grocery Co., 184 Mo.App.
432, 171 S.W. 650, 651,
Covenant of non-claim. A covenant sometimes
employed, particularly in the New England states,
and in deeds of extinguishment of ground rents in
Pennsylvania, that neither the vendor, nor his
heirs, nor any other person, etc., shall claim any
title in the premises conveyed. Rawle, Co y . § 22.
Covenant of right to convey. An assurance by
the covenantor that the grantor has sufficient
capacity and title to convey the estate which he
by his deed undertakes to convey.
Covenant of seisin. An assurance to the purchaser that the grantor has the very estate in
quantity and quality which he purports to convey. 11 East, 641; Rawle, Co y . § 58; Burton v.
Price, 105 Fla. 544, 141 So. 728, 729.
It is said that the covenant of seisin is not now in use
in England, being embraced in that of a right to convey;
but it is used in several of the United States. 2 Washb.
Heal Prop. *648.
Covenant of warranty. An assurance by the
grantor of an estate that the grantee shall enjoy
the same without interruption by virtue of paramount title. King v. Kilbride, 58 Conn. 109, 19
A. 519; Blair v. Morris, 212 Ala. 91, 101 So. 745,
746; Biwer v. Martin, 294 Ill. 488, 128 N.E. 518,
522.
Covenant running with land. A covenant which
goes with the land, as being annexed to the estate, and which cannot be separated from the
land, and transferred without it. 4 Kent, Comm.
472, note.
A covenant is said to run with the land, when not only
the original parties or their representatives, but each successive owner of the land, will be entitled to its benefit, or
be liable (as the case may be) to its obligation. 1 Steph.
Comm. 455. Or, in other words, it is so called when either
the liability to perform it or the right to take advantage
cf it passes to the assignee of the land. Tillotson v.
Prichard, 60 Vt. 94, 14 A. 302, 6 Am.St.Rep. 95; Spencer's
Case, 3 Coke, 31. One which touches and concerns the
land itself, so that its benefit or obligation passes with
the ownership. Local Federal Savings Loan Ass'n of
Oklahoma City v. Eckroat, 186 Okl. 660, 100 P.2d 261, 262.
Covenant running with title. A covenant which
goes with the title. Stipulation in a lease granting
to lessee the option of renewing it for another
specified period was such a covenant. Magnolia
Petroleum Co. v. Carter, La.App., 2 So.2d 680, 682.
Covenant to convey. A covenant by which the
convenantor agrees to convey to the covenantee a
certain estate, under certain circumstances.
Covenant to renew. An executory contract,
giving lessee the right to renew on compliance
with the terms specified in the renewal clause,
if any, or, if none, on giving notice, prior to termination of the lease, of his desire to renew, whereupon the contract becomes executed as to him.
Freiheit v. Broch, 98 Conn. 166, 118 A. 828, 830.
Covenant to stand seised. A conveyance adapted
to the case where a person seised of land in possession, reversion, or vested remainder, proposes
to convey it to his wife, child, or kinsman. In its
terms it consists of a covenant by him, in consid-
438
CRANK
COVERT BARON, or COVERT DE BARON. Under the protection of a husband; married. 1 El.
Comm. 442. La feme que est covert de baron,
the woman which is covert of a husband. Litt.
§ 670.
eration of his natural love and affection, to stand
seised of the land to the use of the intended transferee. Before the statute of uses this would merely have raised a use in favor of the convenantee;
but by that act this use is converted into the legal
estate, and the covenant therefore operates as a
conveyance of the land to the covenantee. It is
now almost obsolete. 1 Steph.Comm. 532; Williams, Seis. 145; French v. French, 3 N.H. 261;
Jackson v. Swart, 20 Johns., N.Y., 85.
COVERTURE. The condition or state of a married woman. Sometimes used elliptically to describe the legal disability arising from a state of
coverture. Osborn v. Horine, 19 Ill. 124; Roberts
v. Lund, 45 Vt. 86.
COVENANTEE. The party to whom a covenant
is made. Shep.Touch. 160.
COVIN. A secret conspiracy or agreement between two or more persons to injure or defraud
another. Mix v. Muzzy, 28 Conn. 191; Anderson
v. Oscamp, Ind.App., 35 N.E. 707; Hyslop v.
Clarke, 14 Johns., N.Y., 465; Co.Litt. 357b; Comyns, Dig. Covin, A; 1 Viner, Abr. 473.
COVENANTOR. The party who makes a covenant. Shep.Touch. 160.
COVENANTS PERFORMED. In Pennsylvania
practice. This is the name of a plea to the action
of covenant whereby the defendant, upon informal
notice to the plaintiff, may give anything in evidence which he might have pleaded. With the
addition of the words "absque hoc" it amounts to
a denial of the allegations of the declaration; and
the further addition of "with leave," etc., imports
an equitable defense, arising out of special circumstances, which the defendant means to offer in
evidence. Zents v. Legnard, 70 Pa. 192; Stewart
v. Bedell, 79 Pa. 336.
COVINOUS. Deceitful; fraudulent; having the
nature of, or tainted by covin.
COW. Female of bovine genus of animals. Strictly, one that has calved. Often loosely used to include heifer, or young female that has not calved.
2 East, Pl.Cr. 616; 1 Leach 105. See Taylor v.
State, 6 Humph., Tenn., 285; Tombigbee Valley R.
Co. v. Wilks, 6 Ala.App. 473, 60 So. 559; Mathis
v. State, 70 Fla. 194, 69 So. 697, 698; Parsons v.
Kimmel, 206 Mich. 676, 173 N.W. 539, 540.
COVENT. A contraction, in the old books, of the
word "convent."
COWARDICE. Pusillanimity; fear; misbehavior
through fear in relation to some duty to be performed before an enemy. O'Brien Ct.M. 142; Coil
v. State, 62 Neb. 15, 86 N.W. 925.
COVENTRY ACT. The name given to the statute
22 & 23 Car. II. c. 1, which provided for the punishment of assaults with intent to maim or disfigure a person. It was so named from its being
occasioned by an assault on Sir John Coventry in
the street as was supposed, for some obnoxious
words uttered by him in parliament. 4 Bl.Comm.
207; State v. Cody, 18 Or. 506, 23 P. 891.
CRACKING. The conversion, by means of heat
and usually pressure, of the complex hydrocarbon
molecules of heavier oils into the molecular structure of the desired lighter oils. Universal Oil
Products Co. v. Skelly Oil Co., D.C.Del., 20 F.2d 995.
CRAFT. A general term, now commonly applied
to all kinds of sailing vessels, though formerly
restricted to the smaller vessels. The Wenonah,
21 Grat., Va., 697; Reed v. Ingham, 3 El. & B.
898.
COVER, v. In insurance. To protect by means
of insurance; sometimes orally pending issuance
of policy. Barrette v. Casualty Co. of America,
79 N.H. 59, 104 A. 126, 127; Michigan Idaho Lumber Co. v. Northern Fire & Marine Ins. Co., 35
N.D. 244, 160 N.W. 130, 136; Muntz v. Travelers
Mut. Casualty Co., 229 Iowa 1015, 295 N.W. 837,
841.
COVER INTO. The phrase "covered into the
treasury," as used in acts of congress and the
practice of the United States treasury department,
means that money has actually been paid into
the treasury in the regular manner, as distinguished from merely depositing it with the treasurer. U. S. v. Johnston, 124 U.S. 236, 8 S.Ct. 446,
31 L.Ed. 389.
COVERING DEED. A trust deed executed by a
trading company to secure an issue of debentures;
Simonson, Debentures, 38.
COVERT. Covered, protected, sheltered. A pound
covert is one that is closed or covered over, as
distinguished from pound overt, which is open
overhead. Co.Litt. 47b; 3 Bl.Comm. 12. A feme
covert is so called, as being under the wing, protection, or cover of her husband. 1 Bl.Comm. 442.
A trade or occupation of the sort requiring skill
and training, particularly manual skill combined
with a knowledge of the principles of the art; also
the body of persons pursuing such a calling; a
guild. Ganahl v. Shore, 24 Ga. 23, Cole v. Commonwealth, 169 Va. 868, 193 S.E. 517, 519.
Guile, artful cunning, trickiness. Not a legal
term in this sense, though often used in connection with such terms as "fraud" and "artifice."
CRANAGE. A liberty to use a crane for drawing
up goods and wares of burden from ships and vessels, at any creek of the sea, or wharf, unto the
land, and to make a profit of doing so. It also signifies the money paid and taken for the service.
Tomlins.
CRANK. A term vulgarly applied to a person- of
eccentric, ill-regulated, and unpractical mental
habits; a person half-crazed; a monomaniac; not
necessarily equivalent to "insane person," "lunatic," or any other term descriptive of complete
439
CRASSUS
mental derangement, and not carrying any implication of homicidal mania. Walker v. Tribune Co.,
C.C.I11., 29 F. 827.
CRASSUS. Large; gross; excessive; extreme.
Crassa ignorantia, gross ignorance. Fleta, lib. 5,
c. 22, § 18.
Crassa negligentia. Gross neglect; absence of
ordinary care and diligence. Hun v. Cary, 82 N.Y.
72, 37 Am.Rep. 546.
CRASTINO. Lat. On the morrow, the day after.
The return-day of writs; because the first day of
the term was always some saint's day, and writs
were returnable on the day after. 2 Reeve, Eng.
Law, 56.
CRATES. An iron gate before a prison. 1 Vent.
304.
CRAVE. To ask or demand; as to crave oyer.
See Oyer.
CREDENTIALS. In international law. The instruments which authorize and establish a public
minister in his character with the state or prince
to whom they are addressed. If the state or prince
receive the minister, he can be received only in
the quality attributed to him in his credentials.
They are, as it were, his letter of attorney, his
mandate patent, mandatum manifestum. Vattel,
liv. 4, c. 6, § 76.
CREDIBILITY. Worthiness of belief; that quality in a witness which renders his evidence worthy of belief. After the competence of a witness
is allowed, the consideration of his credibility
arises, and not before. 3 Bl.Comm. 369; 1 Burrows, 414, 417; Smith v. Jones, 68 Vt. 132, 34 A.
424; Loeb v. State, 133 Miss. 883, 98 So. 449, 451;
Dewein v. State, 120 Ark. 302, 179 S.W. 346, 347.
As to the distinction between competency and
credibility, see Competency.
CREDIBLE. Worthy of belief; entitled to credit.
See Competency.
CRAVEN. In old English law. A word of disgrace and obloquy, pronounced on either champion, in the ancient trial by battle, proving ree., yielding. Glanville calls it "infestum
creant,
et inverecundum verbum." His condemnation was
amittere liberam legem, e., to become infamous,
and not to be accounted liber et legalis homo, being supposed by the event to have been proved
forsworn, and not fit to be put upon a jury or admitted as a witness. Wharton.
CRAZY. A broken, shattered, or deranged condition of the mind; insane. Bates v. Oden, 198
Ala. 569, 73 So. 921. Thompson v. State, 104 Tex.
Cr.R. 637, 285 S.W. 826, 830.
CREAMER. A foreign merchant, but generally
taken for one who has a stall in a fair or market.
Blount.
CREAMUS. Lat. We create. One of the words
by which a corporation in England was formerly
created by the king. 1 Bl.Comm. 473.
CREANCE. In French law. A claim; a debt;
also belief, credit, faith.
CREANCER. One who trusts or gives credit; a
creditor. Britt. cc. 28, 78.
CREANSOR. A creditor. Cowell.
CREATE. To bring into being; to cause to exist; to produce; as, to create a trust in lands, to
create a corporation. Edwards v. Bibb, 54 Ala.
481; McClellan v. McClellan, 65 Me. 500; Pickett
v. Board of Com'rs of Fremont County, 24 Idaho
200, 133 P. 112, 114; People v. California Fish Co.,
166 Cal. 576, 138 P. 79, 91.
To create a charter or a corporation Is to make one
which never existed before, while to renew one is to give
vitality to one which has been forfeited or has expired;
and to extend one is to give an existing charter more time
than originally limited. Indianapolis v. Navin, 151 Ind.
139, 51 N.E. 80, 41 L.R.A. 344; State v. Powell, 109
Ohio St. 383, 1.42 N.E. 401, 403; Town of Westernport v.
Green, 144 Md. 85, 124 A. 403.
Credible person. One who is trustworthy and'
entitled to be believed; in law and legal proceedings, one who is entitled to have his oath or affidavit accepted as reliable, not only on account of
his good reputation for veracity, but also on account of his intelligence, knowledge of the circumstances, and disinterested relation to the matter in question. Also one who is competent to testify. Dunn v. State, 7 Tex.App. 605; Territory v.
Leary, 8 N.M. 180, 43 P. 688; Loeb v. State, 133
Miss. 883, 98 So. 449, 451; Burleson v. State, 131
Tex.Cr.R. 576, 100 S.W.2d 1019, 1020.
Credible witness. One who is competent to
give evidence; also one who is worthy of belief.
Peck v. Chambers, 44 W.Va. 270, 28 S.E. 706;
Savage v. Bulger, 77 S.W. 717, 25 Ky.Law.Rep.
1269; Appeal of Clark, 114 Me. 105, 95 A. 517,
Ann.Cas. 1917A, 837; Hill v. Chicago Title &
Trust Co., 322 M. 42, 152 N.E. 545, 546; Burleson
v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019, 1020.
CREDIBLY INFORMED. The statement in a
pleading or affidavit, that one is "credibly informed and verily believes" such and such facts,
means that, having no direct personal knowledge
of the matter in question, he has derived his information in regard to it from authentic sources
or from the statements of persons who are not
only "credible," in the sense of being trustworthy,
but also informed as to the particular matter or
conversant with it.
CREDIT. The ability of a business man to borrow money, or obtain goods on time, in consequence of the favorable opinion held by the community, or by the particular lender, as to his solvency and reliability. People v. Wasservogle, 77
Cal. 173, 19 P. 270; In re Ford, D.C.Wash., 14
F.2d 848, 849; State ex rel. Globe-Democrat Pub.
Co. v. Gehner, 316 Mo. 694, 294 S.W. 1017, 1018.
That influence connected with certain social positions. 20 Toullier, n. 19. Time allowed to the
buyer of goods by the seller, in which to make
payment for them. The correlative of a debt;
440
CREDITOR
that is, a debt considered from the creditor's
standpoint, or that which is incoming or due to
one. Mountain State Motor Car Co. v. Solof, 97
W.Va. 196, 124 S.E. 824, 825. That which is due
to a person, as distinguished from debit, that
which is due by him. Claim or cause of action
for specific sum of money. Richard v. American
Union Bank, 204 N.Y.S. 719, 722, 123 Misc.Rep.
92; Thaden v. Bagan, 139 Minn. 46, 165 N.W. 864,
865; Richard v. American Union Bank, 204 N.Y.
S. 719, 722, 123 Misc.Rep. 92; New York Life Ins.
Co. v. Edwards, C.C.A.N.Y., 8 F.2d 851, 856; Humphreys v. County Court, 90 W.Va. 315, 110 S.E.
701, 702, 703.
A sum credited on the books of a company to person
who appears to be entitled to it. Coons v. Home Life Ins.
Co. of New York, 291 Ill.App. 313, 9 N.E.2d 419, 421. The
credit of an individual is the trust reposed in him by those
who deal with him that he is of ability to meet his engagements; and he is trusted because through the tribunals of
the country he may be made to pay. The credit of a
government is founded on a belief of its ability to comply
with its engagements, and a confidence in its honor, that
it will do that voluntarily which it cannot be compelled
to do. Owen v. Branch Bank, 3 Ala. 258.
Bill of Credit. See Bill.
Letter of Credit. An open or sealed letter,
from a merchant in one place, directed to another, in another place or country, requiring him,
if a person therein named, or the bearer of the
letter, shall have occasion to buy commodities, or
to want money to any particular or unlimited
amount, either to procure the same or to pass
his promise, bill, or bond for it, the writer of the
letter undertaking to provide him the money for
the goods, or to repay him by exchange, or to
give him such satisfaction as he shall require,
either for himself, or the bearer of the letter.
3 Chit.Com.Law, 336. Powerine Co. v. Russel Inc.,
103 Utah 441, 135 P.2d M6, 909, 910, 912.
A written instrument, addressed by one person to
another, requesting the latter to give credit to the person
in whose favor it is drawn. Mechanics Bank v. New York
& N. H. R. Co., 13 N.Y. 599; Lafargue v. Harrison, 70 Cal.
380, 9 P. 261, 59 Am.Rep. 416. A letter of credit is in the
nature of a negotiable instrument, and is a letter whereby
a person requests another to advance money or give credit
to a third person, and promises to repay person making
advancement. Second Nat. Bank of Toledo v. M. Samuel
& Sons, C.C.A.N.Y., 12 F.2d 963, 966, 53 A.L.R. 49; Border
Nat. Bank of Eagle Pass, Tex., v. American Nat. Bank of
San Francisco, Cal., C.C.A.Tex., 282 F. 73, 77; Liggett v.
Levy, 233 Mo. 590, 136 S.W.2d 299, 301, Ann.Cas.1912C, 70;
General and special. A general letter of credit is one
addressed to any and all persons, without naming any one
in particular, while a special letter of credit is addressed
to a particular individual, firm, or corporation by name.
Birckhead v. Brown, 5 Hill, N.Y., 642; American Steel Co.
v. Irving Nat. Bank, C.C.A.N.Y., 266 F. 41, 43. A "confirmed irrevocable letter of _credit,"" an "irrevocable letter," or a "confirmed credit" is a contract to pay on compliance with its terms, and needs no formal acknowledgment or acceptance other than is therein stated. Lamborn
v. National Park Bank of New York, 240 N.Y. 520, 148 N.E.
664, 665.
Line of Credit. See Line.
Personal Credit. Personal credit is that credit
which a person possesses as an individual, and
which is founded on the opinion entertained of
his character and business standing.
CREDIT. Fr. Credit in the English sense of the
term, or more particularly, the security for a
loan or advancement.
CREDIT FONCIER. A company or corporation
formed for the purpose of carrying out improvements, by means of loans and advances on real
estate security.
CREDIT MOBILIER. A company or association
formed for carrying on a banking business or for
the construction of public works, building of railroads, operation of mines, or other such enterprises, by means of loans or advances on the
security of personal property. Barrett v. Savings Inst., 64 N.J.Eq. 425, 54 A. 543.
CREDITED. The alternative to paid. Lynchburg Trust & Savings Bank v. Commissioner of
Internal Revenue, C.C.A.4, 68 F.2d 356, 358.
CREDITOR. A person to whom a debt is owing
by another person who is the "debtor." Woolverton v. Taylor Co., 43 Ill.App. 424; Insurance
Co. v. Meeker, 37 N.J.Law. 300; Walsh v. Miller,
51 Ohio St. 462, 38 N.E. 381; Rooney v. Inheritance Tax Commission of Kansas, 143 Kan. 143,
53 P.2d 500, 501. One who has a right to require
the fulfillment of an obligation or contract. Mohr
v. Minnesota Elevator Co., 40 Minn. 343, 41 N.W.
1074; Murphy v. Jos. Hollander, Inc., 131 N.J.L.
165, 34 A.2d 780, 783; one to whom money is due,
and, in ordinary acceptation, has reference to
financial or business transactions. State v. Ord
State Bank, 117 Neb. 189, 220 N.W. 265, 266; The
antonym of "debtor." Erickson v. Grande Ronde
Lumber Co., 162 Or. 556, 92 P.2d 170, 177; The
word is susceptible of latitudinous construction.
Commerce Trust Co. v. Farmers' Exchange Bank
of Gallatin, 332 Mo. 979, 61 S.W.2d 928, 89 A.L.R.
373.
The foregoing is the strict legal sense of the term; but
in a wider sense it means one who has a legal right to
demand and recover from another a sum of money on any
account whatever, and hence may include the owner of any
right of action against another, whether arising on contract or for a tort, a penalty, or a forfeiture. Bongard v.
Block, 81 Ill. 186, 25 Am.Rep. 276; one having a claim for
tort, Chalmers v. Sheehy, 132 Cal. 459, 64 P. 709, 84 Am.St.
Rep. 62; an antenuptial agreement as constituting wife a
"creditor" of husband's estate. In re Wilson's Estate, 346
Pa. 562, 31 A.2d 106, 108; parties claiming as trust funds
deposits in insolvent bank, Dewey v. Commercial State
Bank, 141 Kan. 356, 41 P.2d 1006, 1007.
The term "creditor," within the common-law and statutes that conveyances with intent to defraud creditors shall
be void, includes every one having right to require the
performance of any legal obligation, contract, or guaranty,
or a legal right to damages growing out of contract or tort,
Hernton v. Short, 121 Ark. 383, 181 S.W. 142, 144; and
includes not merely the holder of a fixed and certain present debt, but every one having a right to require the performance of any legal obligation, contract, or guaranty, or
a legal right to damages growing out of contract or tort,
and includes one entitled to damages for breach of contract
to convey real estate, notwithstanding the abandonment of
his action for specific performance, In re Littleton's Estate,
223 N.Y.S. 470, 479, 129 Misc.Rep. 845; Mackenzie Oil Co.
v. Omar Oil & Gas Co., 14 Del.Ch. 36, 120 A. 852, 854;
holders of judgment for conversion, Bays v. Brown, 160 Or.
594, 86 P.2d 951, 954; a "person having any claim, whether
matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent." Richards v. Jones, 16 Del.Ch.
227, 142 A. 832, 833. Those having a cause of action for
damages for wrongful death. Evers v. Evers, 146 Neb. 104,
441
CREDITOR
18 N.W.2d 673, 678; in its broad sense the word "creditor"
means one who has any legal liability upon a contract,
express or implied, or in tort; in its narrow sense, the
term is limited to one who holds a demand which is certain
and liquidated. Superior Plating Works v. Art Metal
Crafts Co., 218 Ill. App. 148, 150.
Plaintiff, in action to recover damages for a tort committed against him, is a "creditor" of defendant, within meaning of that term as it is employed in Shannon's Code, §
3143, denouncing conveyances and transfers of property collusively made with intent to delay, hinder, or defraud
creditors. Oliphant v. Moore, 155 Tenn, 359, 293 S. W. 541,
542.
In statutes the term has various special meanings,
dependent upon context, purpose of statute, etc. Toof v.
City Nat. Bank of Paducah, Ky., C.C.A.Ky., 206 F. 250, 252;
a bank taking chattel mortgage for pre-existing debt.
Lindig v. Johnson City State Bank, Tex.Com.App., 41
S.W.2d 222, 224. An assignee of conditional seller taking
trucks as creditor of purchaser, John W. Snyder, Inc., v.
Aker, 134 Misc. 721, 236 N.Y.S. 28, 30. One who had recovered verdict against principal on attachment bond, Amer
Realty Co. v. Spack, 280 Mass. 96, 181 N; E. 753, 754; the
receiver of an insolvent national bank suing to enforce
statutory stockholder's liability for benefit of creditors as
a "creditor", Coffey v. Fisher, C.C.A.Tenn., 100 F.2d 51,
33; person to whom letters of administration granted.
State ex rel. Gentry v. O' Byrne, 221 Ind. 282, 46 N.E.2d
687, 690. One, seeking to recover from a special administrator for conversion, United States Fidelity & Guaranty
Co. v. Krow, 184 Okl. 444, 87 P.2d 950, 954; holders of
participation certificates in mortgage, In re R. A. Security
Holdings, D.C.N.Y., 46 F.Supp. 254, 255; persons who seize
property under a legal process. Neils v. Bohlsen, 181 Minn.
25, 231 N.W. 248; state and political subdivisions, to which
the forfeit is payable, International Harvester Co. v. Gully,
188 Miss. 115, 194 So. 472, 473. The National Labor Relations Board, seeking enforcement of a back pay allowance,
National Labor Relations Board v. Killoren, C.C.A.Mo., 122
F.2d 609, 612. The United States which filed for record,
Underwood v. United States, D.C.Tex., 37 F.Supp. 824, 826.
The Reconstruction Finance Corporation, which had purchased over 86 per cent. of outstanding bonds of insolvent
irrigation district, pursuant to plan to refinance entire
bond indebtedness of district, West Coast Life Ins. Co. v.
Merced Irr, Dist., C.C.A.Cal., 114 F.2d 654, 668, 669.
Classification
A creditor is called a "simple contract creditor,"
a "specialty creditor," a "bond creditor," or otherwise, according to the nature of the obligation giving rise to the debt.
ces did not entitle him, thus involving loss to
other creditors not in his confidence. Gay v.
Strickland, 112 Ala. 567, 20 So. 921.
Creditor at large
One who has not established his debt by the
recovery of a judgment or has not otherwise
secured a lien on any of the debtor's property.
U. S. v. Ingate, C.C.Ala., 48 F. 254; Wolcott v.
Ashenfelter, 5 N.M. 442, 23 P. 780, 8 L.R.A. 691.
Domestic creditor
One who resides in the same state or country
in which the debtor has his domicile or his property.
Double creditor
See Double Creditor.
Execution creditor
One who, having recovered a judgment against
the debtor for his debt or claim, has also caused
an execution to be issued thereon. Chalmers &
Williams v. Surprise, 70 Ind.App. 646, 123 N.E.
841, 844.
Executor creditor
In Scotch law. A creditor of a decedent who
obtains a grant of administration on the estate,
at least to the extent of so much of it as will be
sufficient to discharge his debt, when the executor named in the will has declined to serve, as
also those other persons who would be preferentially entitled to administer.
Existing creditors
See Existing Creditors.
Foreign creditor
Catholic creditor
One who resides in a state or country foreign
to that where the debtor has his domicile or his
property.
General creditor
A creditor at large (supra), or one who has no
lien or security for the payment of his debt or
claim. Wolcott v. Ashenfelter, 5 N.M. 442, 23 P.
780, 8 L.R.A. 691.
In Scotch law, one whose debt is secured on all
or on several distinct parts of the debtor's property. The contracted term (designating one who
is not so secured) is "secondary creditor."
Joint creditors
Persons jointly entitled to require satisfaction.
of the same debt or demand.
Attaching creditor,
One who has caused an attachment to be issued
and levied on property of his debtor.
Certificate creditor
A creditor of a municipal corporation who receives a certificate of indebtedness for the amount
of his claim, there being no funds on hand to
pay him. Johnson v. New Orleans, 46 La.Ann.
714, 15 So. 100.
Confidential 'creditor
A term sometimes applied to creditors of a
failing debtor who furnished him with the means
of obtaining credit to which his real circumstan-
Judgment creditor
See Judgment Creditor.
Junior creditor
One whose claim or demand accrued at a date
later than that of a claim or demand held by
another creditor, who is called correlatively the
"senior" creditor.
Petitioning creditors
As used in Bankruptcy Act, § 64b, 11 U.S.C.A.
§ 104, authorizing one reasonable attorney's fee.
442
CREDITS
forced in equity. Hudson v. Wood, C.C.Ky., 119
F. 775; Fink v. Patterson, C.C.Va., 21 F. 602;
W. G. Press & Co. v. Fahy, 313 Ill. 262, 145 N.E,
103, 104; San Bernardino County Sa y . Bank v.
Denman, 186 Cal. 710, 200 P. 606, 609; Harkin v.
Brundage, 276 U.S. 36, 48 S.Ct. 268, 72 L.Ed. 457.
All creditors petitioning for adjudication, or seeking relief consistent with original petition by supplemental or intervening petition, in view of section 59f, 11 U.S.C.A. § 95. In re Marcuse & Co.,
C.C.A.Il1., 11 F.2d 513, 516.
Principal creditor
One whose claim or demand very greatly exceeds the claims of all other creditors in amount
is sometimes so called. See In re Sullivan's Estate, 25 Wash. 430, 65 P. 793.
Strictly, it is a bill by which a creditor seeks to satisfy
his debt out of some equitable estate of the defendant,
which is not liable to levy and sale under an execution at
law. But there is another sort of a creditors' bill, very
nearly allied to the former, by means of which a party
seeks to remove a fraudulent conveyance out of the way of
his execution. But a naked bill to set aside a fraudulent
deed, which seeks no discovery of any property, chose in
action, or other thing alleged to belong to the defendant,
and which ought to be subjected to the payment of the
judgment, is not a creditors' bill. Newman v. Willetts, 52
Ill. 98; Yates v. Council, 137 Miss. 381, 102 So. 176, 177.
A "class action" is one in which one or more members
of a numerous class, having a common interest, may sue
in behalf of themselves and all other members of the
class and such actions are sometimes called "creditors'
suits" and "stockholders' suits". Farmers Co-op. Oil Co.
v. Socony-Vacuum Oil Co., D.C.Iowa, 43 F.Supp. 735, 737.
In English Practice, a bill in equity, filed by one or more
creditors, for an account of the assets of a decedent, and
a legal settlement and distribution of his estate among
themselves and such other creditors as may come in under
the decree.
Secured creditor
See Secured Creditor.
Single creditor
See Single Creditor.
Subsequent creditor
One whose claim or demand accrued or came
into existence after a given fact or transaction,
such as the recording of a deed or mortgage or
the execution of a voluntary conveyance. McGhee
v. Wells, 57 S.C. 280, 35 S.E. 529, 76 Am.St.Rep.
567.
CREDITORUM APPELLATIONE NON III TANTUM ACCIPIUNTUR QUI PECUNIAM CREDIDERUNT, SED OMNES QUIBUS EX QUALIBET
CAUSA DEBETUR. Under the head of "cred-
Warrant creditor
A creditor of a municipal corporation to whom
itors" are included, not alone those who have lent
money, but all to whom from any cause a debt
is owing. Dig. 50, 16, 11.
is given a municipal warrant for the amount of
his claim, because there are no funds in hand to
pay it. Johnson v. New Orleans, 46 La.Ann. 714,
15 So. 100.
CREDITOR BENEFICIARY. A third person to
whom performance of promise comes in satisfaction of legal duty. Breaux v. Banker, Tex.Civ.
App., 107 S.W.2d 382, 389; Vail v. Reuben H. Donnelley Corporation, 56 Ohio App. 219, 10 N.E.2d
239, 241.
Company transporting material for school building under
contract with subcontractor. J. T. Jackson Lumber Co. v.
Union Transfer & Storage Co., 246 Ky. 653, 55 S.W.2d 670.
Person entitled to enforce contract under which he is entitled to benefit. Hartman Ranch Co. v. Associated Oil Co.,
10 Ca1.2d 232, '73 P.2d 1163, 1169. Situation in which relationship between promisee and beneficiary is that of debtor
and creditor. McCulloch v. Canadian Pac. Ry. Co.,
D.C.Minn., 53 F.Supp. 534, 542.
The lessor has a right of action for breach of parent lease
as a "creditor beneficiary" against a sublessee or an
assignee of the lease who has agreed with the original
lessee to assume the parent lease. Hartman Ranch Co. v.
Associated Oil Co., 10 CaL2d 232, 73 P.2d 1163.
CREDITORS' BILL OR SUIT.
A suit by judgment creditor in equity for pur-
CREDITRIX. A female creditor.
CREDITS. A term of universal application to
obligations due and to become due. Colbert v.
Superior Confection Co., 154 Okl. 28, 6 P.2d 791,
793.
A term used in taxation statutes to designate
certain forms of personal property. It includes
every claim and demand for money and every
sum of money receivable at stated periods, due
or to become due, but not unaccrued rents to
issue out of land. State v. Royal Mineral Ass'n,
132 Minn. 232, 156 N.W. 128, 130, Ann.Cas.1918A,
145. Legacies matured by the lapse of one year
from the date of testator's death were included
in term "credits". City of Newark v. Lehman's
Estate, Tax App., 18 N.J.Misc. 510, 14 A.2d 792,
794. Shares of corporate stock were included.
Holmes v. Borgen, 200 Minn. 97, 273 N.W. 623,
626.
Mutual Credits
pose of reaching property which cannot be reached by execution at law. B. L. E. Realty Corporation v. Mary Williams Co., 101 Fla. 254, 134 So.
47, 49; Ex parte Roddey, 171 S.C. 489, 172 S.E.
866, 868, 92 A.L.R. 1430; Hamburger Apparel Co.
v. Werner, 17 Wash.2d 310, 135 P.2d 311, 315;
City of Newark v. Jos. Hollander, Inc., 136 N.J.
Eq. 539, 42 A.2d 872, 875. A proceeding to enforce the security of a judgment creditor against
the property or interests of his debtor. This action proceeds upon the theory that the judgment
is in the nature of a lien, such as may be en-
In bankrupt law. Credits which must, from
their nature, terminate in debts; as where a debt
is due from one party, and credit given by him
to the other for a sum of money payable at a
future day, and which will then become a debt.,
or where there is a debt on one side, and a delivery of property with directions to turn it into
money on the other. 8 Taunt. 499; 2 Smith, Lead.
Cas. 179. By this phrase, in the rule under which
courts of equity allow set-off in cases of mutual
credit, we are to understand a knowledge on both
sides of an existing debt due to one party, and
443
CREED
a credit by the other party, founded on and trusting to such debt, as a means of discharging it.
King v. King, 9 N.J.Eq. 44. Credits given by two
persons mutually; i. e., each giving credit to the
other. It is a more extensive phrase than "mutual debts." Thus, the sum credited by one may
be due at once, that by the other payable in futuro; yet the credits are mutual, though the transaction would not come within the meaning of
"mutual debts." 1 Atk. 230; Atkinson v. Elliott,
7 Term.R. 378.
CREED. The word "creed" has been defined as
"confession or articles of faith," "formal declaration of religious belief," "any formula or confession of religious faith," and "a system of religious
belief." Cummings v. Weinfeld, 177 Misc. 129, 30
N.Y.S.2d 36, 38.
CREEK. In maritime law. Such little inlets of
the sea, whether within the precinct or extent of
a port or without, as are narrow passages, and
have shore on each side of them. Call.Sew. 56.
A small stream less than a river. Baker v. City
of Boston, 12 Pick. 184, 22 Am.Dec. 421. The
term imports a recess, cove, bay, or inlet in the
shore of a river, and not a separate or independent stream; though it is sometimes used in the
latter meaning. Schermerhorn v. Railroad Co.,
38 N.Y. 103.
CREMATION. The act or practice of reducing a
corpse to ashes by means of fire. Act Pa. 1891,
June 8; P.L. 212, 35 P.S. §§ 1121-1123; L.R. 12
Q.B.D. 247; L.R. 20 Ch.D. 659. See 43 Alb.L.J. 140.
See Dead Body.
CREMENTUM COMITATUS. The increase of a
county. The sheriffs of counties anciently answered in their accounts for the improvement of
the king's rents, above the viscontiel rents, under
this title.
CREPARE OCULUM. In Saxon law. To put
out an eye; which had a pecuniary punishment
of fifty shillings annexed to it.
CREPUSCULUM. Twilight. In the law of burglary, this terms means the presence of sufficient
light to discern the face of a man; such light as
exists immediately before the rising of the sun or
directly after its setting. 4 Bla.Com. 224; Co. 3d
Inst. 63; 1 Russell, Cr. 820; 3 Greenl.Ev. § 75.
CRESCENTE MALITIA CRESCERE DEBET ET
PLENA. 2 Inst. 479. Vice increasing, punishment
ought also to increase.
CREST. A term used in heraldry; it signifies
the devices set over a coat of arms.
CRETINISM. In medical jurisprudence. A form
of imperfect or arrested mental development,
which may amount to idiocy, with physical degeneracy or deformity or lack of development;
endemic in Switzerland and some other parts of
Europe, but the term is applied to similar states
occurring elsewhere.
CRETINUS. In old records. A sudden stream
or torrent; a rising or inundation.
CRETIO. Lat. In the civil law. A certain number of days allowed an heir to deliberate whether
he would take the inheritance or not. Calvin.
CREW. Usually referred to and is primarily
thought of as those who are on board and aiding
in the navigation. Gulf Oil Corporation v. McD.C.W.Va., 49 F.Supp. 75, 78; Norton
v. Warner Co., Pa., 321 U.S. 565, 64 S.Ct. 747, 751,
88 L.Ed. 931; Berwind-White Coal Mining Co. v.
Rothensies, C.C.A.Pa., 137 F.2d 60, 62. "Crew"
does not have an absolutely unvarying legal significance or any well-defined factual significance.
Schantz v. American Dredging Co., C.C.A.Pa., 138
F.2d 534, 537. The aggregate of seamen who man
a ship or vessel, including the master and officers;
or it may mean the ship's company, exclusive of
the master, or exclusive of the master and all
other officers. See U. S. v. Winn, 3 Sumn. 209,
28 Fed.Cas. 733; The Buena Ventura, D.C.N.Y.,
243 F. 797, 799; The Herdis, D.C.Md., 22 F.2d 304,
306.
CREW LIST. In maritime law. A list of the
crew of a vessel; one of a ship's papers. This
instrument is required by act of congress, and
sometimes by treaties. Rev.St.U.S. §§ 4374, 4375,
46 U.S.C.A. §§ 322, 323. It is necessary for the
protection of the crews of every vessel, in the
course of the voyage, during a war abroad. Jac.
Sea Laws, 66, 69, note.
CRIER. An officer of a court, who makes proclamations. His principal duties are to announce
the opening of the court and its adjournment and
the fact that certain special matters are about to
be transacted, to announce the admission of persons to the bar, to call the names of jurors, witnesses, and parties, to announce that a witness
has been sworn, to proclaim silence when so directed, and generally to make such proclamations
of a public nature as the judges order.
CRIEZ LA PEEZ. Rehearse the concord, or
peace. A phrase used in the ancient proceedings
for levying fines. It was the form of words by
which the justice before whom the parties appeared directed the serjeant or countor in attend..
ance to recite or read aloud the concord or agreement between the parties, as to the lands intended to be conveyed. 2 Reeve, Eng.Law, 224, 225.
CRIM. CON. An abbreviation for "criminal conversation," of very frequent use, denoting adultery. Rash v. Pratt, 111 A. 225, 228, 1 W.W.Harr.,
Del., 18; Hargraves v. Ballou, 47 R.I. 186, 131 A.
643, 645.
The term in its general and comprehensive sense, is synonymous with "adultery" ; but in its more limited and
technical signification it may be defined as adultery in the
aspect of a tort. Turner v. Heavrin, 182 Ky. 65, 206 S.W.
23, 4 A.L.R. 562.
CRIME. A positive or negative act in violation
of penal law; an offense against the State. Wilkins v. U. S., C.C.A.Pa., 96 F. 837, 37 C.C.A. 588;
People v. Williams, 24 Mich. 163, 9 Am.Rep. 119.
444
CRIME
"Crime" and "misdemeanor," properly speaking,
are synonymous terms; though in common usage
"crime" is made to denote such offenses as are of
a deeper and more atrocious dye. 4 Bl.Comm. 5;
People v. Schiaffino, 73. Cal.App. 357, 238 P. 725;
Guetling v. State, 199 Ind. 630, 158 N.E. 593, 594;
McIntyre v. Commonwealth, 154 Ky. 149, 156 S.
W. 1058, 1059; Commonwealth v. Smith, 266 Pa.
511, 109 A. 786, 788, 9 A.L.R. 922; Ex parte Brady,
116 Ohio St. 512, 157 N.E. 69, 70; An act committed or omitted in violation of a public law.
City of Mobile v. McCown Oil Co., 226 Ala. 688,
148 So. 402, 405. Crimes are those wrongs which
the government notices as injurious to the public, and punishes in what is called a "criminal
proceeding," in its own name. 1 Bish.Crim.Law,
§ 43; In re Jacoby, 74 Ohio App. 147, 57 N.E.2d
932, 934, 935. A crime may be defined to be any
act • done in violation of those duties which an
individual owes to the community, and for the
breach of which the law has provided that the
offender shall make satisfaction to the public.
Bell. A crime or public offense is an act committed or omitted in violation of a law forbidding
or commanding it, and to which is annexed, upon
conviction, either of the following punishments:
(1) Death; (2) imprisonment; (3) fine; (4) removal from office; or (5) disqualification to hold
and enjoy any office of honor, trust, or profit in
this state. Pen.Code Cal. § 15. "Crime" is strictly a violation of law either human or divine; in
present usage the term is commonly applied to
grave offenses against the laws of the state. Van
Riper v. Constitutional Government League, 1
Wash.2d 635, 96 P.2d 588, 591, 125 A.L.R. 1100.
A crime or misdemeanor shall consist in a violation of a public law, in the commission of which
there shall be a union or joint operation of act
and intention, or criminal negligence. Code Ga.
1882, § 4292, Pen.Code 1910, § 31.
Synonyms
According to Blackstone, the word "crime" denotes such offenses as are of a deeper and more
atrocious dye, while smaller faults and omissions
of less consequence are called "misdemeanors."
But the better use appears to be to make crime
a term of broad and general import, including
both felonies and misdemeanors, and hence covering all infractions of the criminal law. In this
sense it is not a technical phrase, strictly speaking, (as "felony" and "misdemeanor" are,) but a
convenient general term. In this sense, also, "offense" or "public offense" should be used as synonymous with it.
The distinction between a crime and a tort or
civil injury is that the former is a breach and
violation of the public right and of duties due to
the whole community considered as such, and
in its social and aggregate capacity; whereas the
latter is an infringement or privation of the civil
rights of individuals merely. Brown.
A crime, as opposed to a civil injury, is the
violation of a right, considered in reference to the
evil tendency of such violation, as regards the
community at large. 4 Steph.Comm. 4.
Varieties of Crimes
Capital crime. See Capital, adj.
Common law crimes
Such crimes as are punishable by the force of
the common law, as distinguished from crimes
created by statute. Wilkins v. U. S., C.C.A.Pa.,
96 F. 837, 37 C.C.A. 588; In re Greene, C.C.Ohio, 52
F. 111. These decisions (and many others) hold
that there are no common-law crimes against
the United States.
Constructive crime
See Constructive Crime.
Continuous crime
One consisting of a continuous series of acts,
which endures after the period of consummation,
as, the offense of carrying concealed weapons. In
the case of instantaneous crimes, the statute of
limitations begins to run with the consummation,
while in the case of continuous crimes it only
begins with the cessation of the criminal conduct
or act. U. S. v. Owen, D.C.Or., 32 F. 537.
Crime against nature
The offense of buggery or sodomy. State v.
Vicknair, 52 La.Ann. 1921, 28 So. 273; Ausman v.
Veal, 10 Ind. 355, 71 Am.Dec. 331. The strict common-law meaning has been greatly enlarged by
statute. Borden v. State, 3G Okl.Cr. 69, 252 P.
446, 447; State v. Murry, 136 La. 253, 66 So. 963,
964; State v. Long, 133 La. 580, 63 So. 180; Frazier v. Grob, 194 Mo.App. 405, 183 S.W. 1083, 1084;
State v. Griffin, 175 N.C. 767, 94 S.E. 678, 679. See
Bestiality; Sodomy.
At common law the term "crime against nature"
embraced both sodomy and "bestiality", defined as a connection between a human being and a brute of the opposite
sex. State v. Poole, 59 Ariz. 44, 122 P.2d 415, 416. Within
the statute it is the perverted act of uniting the mouth of
one participant with the sexual organ of the other, with a
view of gratifying the sexual desire, and a mere kiss or
lick of the private organ, even though lewdly done, is not
a "copulation" within the statute. People v. Angier, 44
Cal.App.2d 417, 112 P.2d 659, 660.
Crime against the other (husband or wife)
As used in 22 Okl.St.Ann. 702, providing that
neither husband nor wife shall be a witness
against the other except in a prosecution for a
"crime committed against the other," the phrase
denotes a public offense by husband or wife that
is a direct violation of the rights of the other.
Hunter v. State, 10 Okl.Cr. 119, 134 P. 1134, 1136,
L.R.A. 1915A, 564. It does not make the wife a
competent witness in a prosecution against the
husband for incest. Lacey v. State, 27 Okl.Cr. 42,
224 P. 994, 995.
Murder by wife of husband's child, O'Loughlin v. People, 90 Colo. 368, 10 P.2d 543, 546. Rape against stepdaughter. State v. Goff, 64 S.D. 80, 264 N.W. 665, 666.
Crimes mala in se
"Crimes mala in se" embrace acts immoral or
wrong in themselves, such as burglary, larceny,
445
CRIME
arson, rape, murder, and breaches of peace. Coleman v. State ex rel. Carver, 119 Fla. 653, 161 So.
89, 90.
Crimes mala prohibita
"Crimes mala prohibita" embrace things prohibited by statute as infringing on others' rights,
though no moral turpitude may attach, and constituting crimes only because they are so prohibited. Coleman v. State ex rel. Carver, 119 Fla.
653, 161 So. 89, 90.
cluding every offense punishable with death or
by imprisonment in a state prison, and no other.
High crimes
High crimes and misdemeanors are such immoral and unlawful acts as are nearly allied and
equal in guilt to felony, yet, owing to some technical circumstance, do not fall within the definition of "felony." State v. Knapp, 6 Conn. 417, 16
Am.Dec. 68. They are the more serious or aggravated misdemeanors; those more nearly allied
and equal in guilt to felony, but which do not fall
within its definition. Firmara v. Gardner, 86
Conn. 434, 85 A. 670, 672.
Infamous crime
A crime which entails infamy upon one who
has committed it. Butler v. Wentworth, 84 Me.
25, 24 A. 456, 17 L.R.A. 764. The term "infamous"
e., without fame or good report—was applied
at common law to certain crimes, upon the conviction of which a person became incompetent to
testify as a witness, upon the theory that a person would not commit so heinous a crime unless
he was so depraved as to be unworthy of credit.
These crimes are treason, felony, and the crimen
_Nisi. Abbott. A crime punishable by imprisonment in the state prison or penitentiary, with or
without hard labor, is an infamous crime, within
the provision of the fifth amendment of the constitution that "no person shall be held to answer
for a capital or otherwise infamous crime unless
on a presentment or indictment of a grand jury."
Mackin v. U. S., 117 U.S. 348, 6 S.Ct. 777, 29 L.
Ed. 909; Brede v. Powers, 263 U.S. 4, 44 S.Ct. 8,
68 L.Ed. 132. It is not the character of the crime
but the nature of the punishment which renders
the crime "infamous." Weeks v. United States,
C.C.A.N.Y., 216 F. 292, 298, L.R.A. 1915B, 651. But
see Drazen v. New Haven Taxicab Co., 95 Conn.
500, 111 A. 861, 864. Whether an offense is infamous depends on the punishment which may be
i mposed therefor, not on the punishment which
was imposed. United States v. Moreland, 258 U.S.
433, 42 S.Ct. 368, 370, 66 L.Ed. 700; De Jianne v.
U. S., C.C.A.N.J., 282 F. 737, 740; Le Clair v. White,
117 Me. 335, 104 A. 516, 517. Under the constitution of Rhode Island, a crime, to be "infamous,"
must come within the "crimen falsi," such as forgery, perjury, subornation of perjury, offenses affecting the public administration of justice, or
such as would affect civil or political rights, disqualifying or rendering a person incompetent to
be a witness or juror. State v. Bussay, 38 R.I.
454, 96 A. 337, 339. By the Revised Statutes of
New York the term "infamous crime," when used
in any statute, is directed to be construed as in-
Quasi crimes
This term embraces all offenses not crimes or
misdemeanors, but that are in the nature of
crimes,—a class of offenses against the public
which have not been declared crimes, but wrongs
against the general or local public which it is
proper should be repressed or punished by forfeitures and penalties. This would embrace all
qui tarn actions and forfeitures imposed for the
neglect or violation of a public duty. A quasi
crime would not embrace an indictable offense,
whatever might be its grade, but simply forfeitures for a wrong done to the public, whether voluntary or involuntary, where a penalty is given,
whether recoverable by criminal or civil process.
Wiggins v. Chicago, 68 Ill. 375. Also, offenses for
which some person other than the actual perpetrator is responsible, the perpetrator being presumed to act by command of the responsible party. Sometimes, injuries which have been unintentionally caused. Torts. McCaleb v. Fox Film
Corporation, C.C.A.La., 299 F. 48, 50.
Statutory crimes
Those created by statutes, as distinguished from
such as are known to, or cognizable by, the common law.
CRIMEN. Lat. Crime. Also an accusation or
charge of crime.
Crimen furti. The crime or offense of theft.
Crimen incendii. The crime of burning, which
included not only the modern crime of arson, but
also the burning of a man, a beast, or other chattel. Britt. c. 9; Crabb, Eng.Law, 308.
Crimen innominatum. The nameless crime;
the crime against nature; sodomy or buggery.
Crimen raptus. The crime of rape.
Crimen roberix. The offense of robbery.
Flagrans crimen; Locus criminis; Particeps
criminis. See those titles.
CRIMEN FALSI. The term involves the element
of falsehood, and includes everything which has
a tendency to injuriously affect the administration of justice by the introduction of falsehood
and fraud. Commonwealth v. Schambers, 110 Pa.
Super. 61, 167 A. 645, 646; Commonwealth v. Jones,
334 Pa. 321, 5 A.2d 804, 805. A crime less than
felony that by its nature tends to cast doubt on
the veracity of one who commits it. Commonwealth v. Gold, 155 Pa.Super. 364, 38 A.2d 486,
489. This phrase is also used as a general designation of a class of offenses, including all such
as involve deceit or falsification; e. g., forgery,
counterfeiting, using false weights or measures,
perjury, etc. Includes forgery, perjury, subornation of perjury, and offenses affecting the public
administration of justice. Matzenbaugh v. Peo-
446
CRIMINAL
ple, 194 Ill. 108, 62 N.E. 546, 88 Am.St.Rep. 134;
Johnston v. Riley, 13 Ga. 97.
tional Government League, 1 Wash.2d 635, 96 P.2d
588, 591, 125 A.L.R. 1100. The word is defined as
of the nature of or involving a crime; more generally, of the nature of a grave offense; wicked.
Van Riper v. Constitutional government League,
1 Wash.2d 635, 96 P.2d 588, 591, 125 A.L.R. 1100.
At common law. Any crime which rendered the perpetrator incompetent to be a witness, such as forgery, perjury, subornation of perjury and other crimes affecting the
administration of justice. Drazen v. New Haven Taxicab
Co., 95 Conn. 500, 111 A. 861, 862; Maxey v. United States,
C.C.A.Ark., 207 F. 327, 331; Webb v. State, 29 Ohio St. 351,
358.
In the civil law, the crime of falsifying; which might
be committed either by writing, as by the forgery of a will
or other instrument; by words, as by bearing false witness. or perjury; and by acts, as by counterfeiting or
adulterating the public money, dealing with false weights
and measures, counterfeiting seals, and other fraudulent
and deceitful practices. Dig. 48, 10; Hallifax, Civil Law,
b. 3, c. 12, nn. 56-59.
In Scotch law. It has been defined: "A fraudulent imitation or suppression of truth, to the prejudice of
another." Ersk.Inst. 4, 4, 66.
Criminal abortion
See Abortion.
Criminal act
CRIMEN FALSI DICITUR, CUM QUIS ILLICITUS, CUI NON FUERIT AD IFEC DATA ATTCTORITAS, DE SIGILLO REGIS, RAPTO VEL
INVENTO, BREVIA, CARTASVE CONSIGNAVERIT. Fleta, lib. 1, c. 23. The crime of forgery
is when any one illicitly, to whom power has not
been given for such purposes, has signed writs or
charters with the king's seal, either stolen or
found.
CRIMEN LIESIE MAJESTATIS. In criminal
law. The crime of lese-majesty, or injuring
majesty or royalty; high treason. The term was
used by the older English law writers to denote
any crime affecting the king's person or dignity.
It is borrowed from the civil law, in which it
signified the undertaking of any enterprise
against the emperor or the republic. Inst. 4, 18,
3.
CRIMEN L1ESz zE MAJESTATIS OMNIA ALIA
atEVIINA EXCEDIT QUOAD PENAM. 3 Inst.
210. The crime of treason exceeds all other
crimes in its punishment.
CRIMEN OMNIA EX SE NATA VITIAT. Crime
vitiates everything which springs from it. Henry v. Bank of Salina, 5 Hill, N.Y., 523, 531.
CRIMEN TRAHIT PERSONAM. The crime carries the person, (i. e., the commission of a crime
gives the courts of the place where it is committed jurisdiction over the person of the offender.) People v. Adams, 3 Denio, N.Y. 190, 210, 45
Am.Dec. 468.
CRIMINA MORTE EXTINGUUNTUR. Crimes
are extinguished by death.
A term which is equivalent to crime; or is
sometimes used with a slight softening or glossing of the meaning, or as importing a possible
question of the legal guilt of the deed. The intentional violation of statute designed to protect
human life is criminal act. State v. Agnew, 202
N.C. 755, 164 S.E. 578, 579.
Criminal action
The proceeding by which a party charged with
a public offense is accused and brought to trial
and punishment is known as a "criminal action."
Pen.Code Cal. § 683. A criminal action is (1) an
action prosecuted by the state as a party, against
a person charged with a public offense, for the
punishment thereof ; (2) an action prosecuted by
the state, at the instance of an individual, to prevent an apprehended crime, against his person
or property. Code N.C. 1883, § 129, C.S. § 395.
Criminal assault and battery
An accused may be guilty of a "criminal as
sault and battery" if he intentionally does an
act which by reason of its wanton and grossly
negligent character exposes another to personal
injury and in fact causes injury. State v. Linville, 150 Kan. 617, 95 P.2d 332, 334.
Criminal case
An action, suit, or cause instituted to punish an
infraction of the criminal laws. State v. Smalls,
11 S.C. 279; People v. Iron Co., 201 Ill. 236, 66 N.
E. 349; Wilburn v. State, 140 Ga. 138, 78 S.E. 819,
820; Hankamer v. Templin, 143 Tex. 572, 187- S.
W.2d 549, 550. The phrase has various meanings
according to context and purpose of constitutional
provision or statute. Ex parte Tahbel, 46 Cal.
App. 755, 189 P. 804, 806; Childs v. City of Birmingham, 19 Ala.App. 71, 94 So. 790; Barnett v..
Atlanta, 109 Ga. 166, 34 S.E. 322.
Criminal charge
CRIMINAL, n. One who has committed a criminal offense; one who has been legally convicted
of a crime; one adjudged guilty of crime. Molineux v. Collins, 177 N.Y. 395, 69 N.E. 727, 65 L.R.
A. 104. Synonymous with word "crook." Weiner
v. Leviton, 230 App.Div. 312, 244 N.Y.S. 176, 178.
CRIMINAL, adj. That which pertains to or is
connected with the law of crimes, or the administration of penal justice, or which relates to or
has the character of crime. Charleston v. Beller,
45 W.Va. 44, 30 S.E. 152; Van Riper v. Constitu-
An accusation of crime, formulated in a written
complaint, information, or indictment, and taking
shape in a prosecution. U. S. v. Patterson, 150 U._
S. 65, 14 S.Ct. 20, 37 L.Ed. 999; Eason v. State, 11
Ark. 482; People v. Ross, 235 Mich. 433, 209 N.W.
663, 666.
Criminal contempt proceeding
"Criminal contempt proceedings" are brought
to preserve the power and vindicate the dignity
and integrity of the court and to punish for disobedience of its orders. O'Malley v. United
States, C.C.A.Mo., 128 F.2d 676, 683.
447
CRIMINAL
Criminal conversation
Defilement of the marriage bed, sexual intercourse of an outsider with husband or wife, or a
breaking down of the covenant of fidelity. Young
v. Young, 236 Ala. 627, 184 So. 187, 190, 191. Adultery, considered in its aspect of a civil injury to
the husband entitling him to damages; the tort
of debauching or seducing of a wife. Often abbreviated to crim. con.
Criminal court
One where criminal cases are tried and determined, not one where civil cases are tried, or
persons charged with criminal offenses are held
for action by proper authority. Hobart v. First
Criminal Judicial Dist. of Court of Bergen CounV, 10 N.J.Misc. 723, 160 A. 674, 675.
Criminal gross negligence
"Gross negligence" is culpable or criminal when
accompanied by acts of commission or omission,
of a wanton or willful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to
produce injury, or which make it not improbable
that injury will be occasioned, and the offender
knows or is charged with knowledge of the probable result of his acts; "culpable" meaning deserving of blame or censure. Bell v. Commonwealth, 170 Va. 597, 195 S.E. 675, 681.
Criminal information
A criminal suit brought, without interposition
of a grand jury, by the proper officer of the king
or state. Cole, Cr.Inf.; 4 Bla.Com. 398.
Criminal insanity
Want of mental capacity and moral freedom to
do or abstain from doing particular act. State v.
Schafer, 156 Wash. 240, 286 P. 833, 838.
Criminal instrumentality rule
Where the wrong is accomplished by a crime,
the crime and not the negligent act of the party
which made it possible is the "proximate cause".
Foutch v. Alexandria Bank & Trust Co., 177 Tenn.
348, 149 S.W.2d 76, 85.
Criminal intent
The intent to commit a crime; malice, as evidenced by a criminal act; an intent to deprive or
defraud the true owner of his property. People
v. Borden's Condensed Milk Co., 165 App.Div. 711,
151 N.Y.S. 547, 549; State v. Howard, 162 La. 719,
111 So. 72, 76.
Criminal malversation
A broad category of corrupt official practices.
Jimenez v. Aristeguieta, C.A.Fla., 311 F.2d 547,
562.
Criminal Motive
"Criminal motive" is the inducement, existing
in the minds of persons, causing them to intend,
and afterward to commit, crime. State v. Richardson, 197 Wash. 157, 84 P.2d 699, 703.
Criminal Procedure
The method pointed out by law for the apprehension, trial, or prosecution, and fixing the punishment, of those persons who have broken or
violated, or are supposed to have broken or violated, the laws prescribed for the regulation of
the conduct of the people of the community, and
who have thereby laid themselves liable to fine or
imprisonment or other punishment. 4 Amer. &
Eng. Enc. Law, 730.
Criminal Proceeding
One instituted and conducted for the purpose
either of preventing the commission of crime, or
for fixing the guilt of a crime already committed
and punishing the offender; as distinguished from
a "civil" proceeding, which is for the redress of
a private injury. Mossew v. United States, C.C.A.
N.Y., 266 F. 18, 22, 11 A.L.R. 1261. Strictly, a
"criminal proceeding" means some step taken before a court against some person or persons
charged with some violation of the criminal law.
McGoldrick v. Downs, 184 Misc. 168, 53 N.Y.S.2d
333, 336.
Criminal Process
Process which issues to compel a person to answer for a crime or misdemeanor. Mowlan v.
State, 197 Ind. 517, 151 N.E. 416, 417. Also process
issued to aid in the detection or suppression of
crime, such as search warrants—the primary purpose of the search being to obtain evidence for
use in a criminal prosecution. Sugar Valley Land
Co. v. Johnson, 17 Ala.App. 409, 85 So. 871, 874.
Criminal Prosecution
An action or proceeding instituted in a proper
court on behalf of the public, for the purpose of
securing the conviction and punishment of one accused of crime. Harger v. Thomas, 44 Pa. 128, 84
Am.Dec. 422; Ex parte Pepper, 185 Ala. 284, 64
So. 112, 113; State v. District Court of Fifth Judicial Dist. in and for Madison County, 53 Mont.
350, 165 P. 294, 296; McGoldrick v. Downs, 184
Misc. 168, 53 N.Y.S.2d 333, 336. A prosecution in a
court of justice, in name of the Government,
against one or more individuals accused of crime.
United States v. Safeway Stores, Tex., C.C.A.Kan.,
140 F.2d 834, 839.
As to criminal "Conspiracy," "Contempt," "Information," "Jurisdiction," "Negligence," "Operation," see those titles.
CRIMINAL JURISDICTION. That which exists
for the trial and punishment of criminal offenses;
the authority by which judicial officers take cognizance of and decide criminal cases. Ellison v.
448
CROP
deprive of use of limbs, particularly of leg or foot,
to deprive of strength, activity or capability for
service or use and to disable. People v. Lockwood, 308 Mich. 618, 14 N.W.2d 517, 518; Baker v.
Chicago, B. & Q. R. Co., 327 Mo. 986, 39 S.W.2d
535, 545.
State, 125 Ind. 492, 24 N.E. 739; In re City of
Buffalo, 139 N.Y. 422, 34 N.E. 1103.
Criminal law
That branch or division of law which treats
of crimes and their punishments. In the plural—
"criminal laws"—the term may denote the laws
which define and prohibit the various species of
crimes and establish their punishments. U. S. v.
Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480;
Washington v. Dowling, 92 Fla. 601, 109 So. 588,
591.
CRITICISM. Permitted "criticism" as distinguished from "defamation" deals only with such
things as invite public comment, and does not follow a public man into his private life, and pry
into his domestic concerns. Devany v. Shulman,
184 Misc. 613, 53 N.Y.S.2d 401, 403.
CRIMINAL LAW AMENDMENT ACT. This act
was passed in 1871, 34 & 35 Vict. c. 32, to prevent
and punish any violence, threats, or molestation,
on the part either of master or workmen, in the
various relations arising between them. 4 Steph.
Comm. 241.
CRO, CR00. In old Scotch law. A weregild. A
composition, satisfaction, or assythment for the
slaughter of a man.
CRIMINAL LAW CONSOLIDATION ACT. The
statutes 24 & 25 Vict. cc. 94-100, passed in 1861,
for the consolidation of the criminal law of England and Ireland. 4 Steph. Comm. 297. These
important statutes amount to a codification of the
modern criminal law of England.
the prelate. Wharton.
CROCKARDS, CROCARDS. A foreign coin of
base metal, prohibited by statute 27 Edw. I. St.
3, from being brought into the realm. 4 BL
Comm. 98; Crabb, Eng. Law, 176.
CRDIINAL LETTERS. In Scotch law. A process used as the commencement of a criminal proceeding, in the nature of a summons issued by the
lord advocate or his deputy. It resembles a criminal information at common law.
CROFT. A little close adjoining a dwelling-house,
and inclosed for pasture and tillage or any particular use. Jacob. A small place fenced off in
which to keep farm-cattle. Spelman. The word
is now entirely obsolete.
CRIMINAL LIBEL. A libel which is punishable
criminally; one which tends to excite a breach
of the peace. 3 Greenl. Ev. § 164; Walker v.
Wickens, 49 Kan. 42, 30 P. 181; Kennerly v. Hennessy, 68 Fla. 138, 66 So. 729, 19 A.L.R. 1468. The
malicious defamation of a person made public
by any printing or writing tending to provoke him
to wrath and to deprive him of the benefits of
public confidence and social intercourse.
CROISES. Pilgrims; so called as wearing the
sign of the cross on their upper garments. Britt.
c. 122. The knights of the order of St. John of
Jerusalem, created for the defense of the pilgrims.
Cowell; Blount.
CROCIA. The crosier, or pastoral staff.
CROCIARIUS. A cross-bearer, who went before
CRIMINALIST. One versed in criminal law, one
addicted to criminality, and, also, a psychiatrist
dealing with criminality. People v. Taylor, 312
P.2d 731, 734, 152 C.A.2d 29; Douglas v. State, 163
So.2d 477, 486, 42 Ala.App. 314.
CRIMINALITER. Lat. Criminally. This term
is used, in distinction or opposition to the word
"civiliter," civilly, to distinguish a criminal liability or prosecution from a civil one.
CRIMINATE. To charge one with crime; to furnish ground for a criminal prosecution; to expose
a person to a criminal charge. A witness cannot
be compelled to answer any question which has
a tendency to criminate him. Stewart v. Johnson, 18 N.J.Law, 87; Kendrick v. Comm., 78 Va.
490.
CRIMINOLOGY. The science which treats of
crimes and their prevention and punishment.
CRIMP. One who decoys and plunders sailors
under cover of harboring them. Wharton.
CRIPPLING. The word "crippling" is equivalent
of words "physical disability" and is defined as to
Black's Law Dictionary Revised 4th Ed.-29
CROITEIR. A crofter; one holding a croft
CROOK. A person given to crooked or fraudulent practices, a swindler, sharper, thief, forger,
or the like. Rubenstein v. Lee, 56 Ga.App. 49, 192
S.E. 85, 87; Sinclair Refining Co. v. Fuller, 190
Ark. 426, 79 S.W.2d 736, 739. Term "crook" has
been defined as a professional rogue; a criminal;
or one consorting with criminals; a person recognized by the authorities as belonging to the criminal class; swindler; sharp; cheat. Gaare v.
Melbostad, 186 Minn. 96, 242 N.W. 466, 467.
CROOKED. Deviating from rectitude or uprightness; not straightforward; dishonest; wrong;
perverse. A "crook" is a dishonest person; one
who is crooked in conduct; a tricky or underhand
schemer; a thief or swindler. Villemin v. Brown,
193 App.Div. 777, 184 N.Y.S. 570, 571; Pandolfo v.
Bank of Benson, C.C.A.Ariz., 273 F. 48, 51.
CROP. The products of the harvest; emblements. Mutual Fire Insurance Co. v. Dehaven,
Pa., 5 A. 65; Verbeck v. Peters, 170 Iowa, 610, 153
N.W. 215, 216. Such products of the soil as, are
annually planted, severed, and saved by manual
labor, as cereals, vegetables, grass maturing for
harvest or harvested, etc., but not grass on lands
used for pasturage. Moore v. Hope Natural Gas
449
CROP
Co., 76 W.Va. 649, 86 S.E. 564, 567. In its more
general signification, means all products of the
soil that are grown and raised annually and gathered during a single season. In this sense the
term includes fructus industriales and fructus naturales. The word is also used, however, in a
more restricted sense, as synonymous with fructus industriales or emblements. Etymology of
word "crop" appears to be from the Saxon "crop"
or "cropp," which signified a cluster of ears of
corn or grapes; another derivation is from the
Welch "cropiad," which meant a fathering or taking hold of. It is from this derivation that the
word has been held to mean only products after
they have been severed from the soil. At times
a distinction has been drawn between fructus industriales and fructus naturales. Kennedy v.
Spalding, 143 Kan. 76, 53 P.2d 804, 806; Miethke
v. Pierce County, 173 Wash. 381, 23 P.2d 405; Weddle v. Parrish, 135 Or. 345, 295 P. 454, 455.
In a broader sense, any product of the soil. Ellis,
McKinnon & Brown v. Hopps, 30 Ga.App. 453, 118 S.E. 583;
Buchanan v. Jencks, 38 R.I. 443, 96 A. 307, 309, 2 A.L.R.
986.
CROPPER. One who, having no interest in the
land, works it in consideration of receiving a portion of the crop for his labor. Wood v. Garrison,
23 Ky.Law Rep. 295, 62 S.W. 728; Maltbie v. Olds,
88 Conn. 633, 92 A. 403, 405; Davis v. State, 84 Tex.
Cr.R. 282, 206 S.W. 690; Empire Gas & Fuel Co. v.
Denning, 128 Okl. 145, 261 P. 929, 930.
The difference between a tenant and a cropper
is: A tenant has an estate in the land for the
term, and, consequently, he has a right of property in the crops. Until division, the right of
property and of possession in the whole is the
tenant's. A cropper has no estate in the land;
and, although he has in some sense the possession
of the crop, it is the possession of a servant only,
and is, in law, that of the landlord, who must
divide off to the cropper his share. Harrison v.
Ricks, 71 N.C. 7; O'Brien v. Webb, D.C.Cal., 279
F. 117, 120; Cook-Reynolds Co. v. Wilson, 67
Mont. 147, 214 P. 1104, 1105; Halsell v. First Nat.
Bank, 109 Okl. 220, 235 P. 532, 533; Gibbons v.
Huntsinger, 105 Mont. 562, 74 P.2d 443.
CROSS. A mark made by persons who are unable to write, to stand instead of a signature. A
mark usually in the form of an X, by which voters
are commonly required to express their selection.
There are four principal forms of the cross: The
St. Andrew's cross, which is made in the form of
an X ; the Latin cross, t, as used ih the crucifixion; St. Anthony's cross, which is made in the
form of a T; and the Greek cross, +, which is
made by the intersection at right angles of lines
at their center point. Hunt v. Campbell, 19 Ariz.
254, 169 P. 596, 610.
As an adjective, the word is applied to various
demands and proceedings which are connected in
subject-matter, but opposite or contradictory in
purpose or object.
As a verb it means to pass or extend from one
side to the other, as to cross a stream. People
v. Hawkins, 51 Cal.App.2d Supp. 781, 124 P.2d
691, 692.
As to cross "Appeal," "Bill," "Complaint," "Remainder," "Rules," see those titles.
CROSS-ACTION. An action brought by one who
is defendant in a suit against the party who is
plaintiff in such suit, upon a cause of action growing out of the same transaction which is there
in controversy, whether it be a contract or tort.
An independent suit brought by defendant against
plaintiff. National Stock Yards Nat. Bank v. Valentine, Tex.Civ.App., 39 S.W.2d 907, 908.
CROSS-CLAIM. A "cross-claim" is one brought
by a defendant against a plaintiff in the same action or against a codefendant or both concerning
matters in question in the original petition, and
its purposes are to discover facts in aid of defense,
to bring in new matter in aid of defense, to obtain
some affirmative relief concerning matters in issue, to obtain full relief for all parties and a complete determination of all controversies arising out
of matters alleged in original petition, and to have
affirmative relief against either plaintiff or codefendant in the nature of an original petition. Farr
v. Detroit Trust Co., C.C.A.Mich., 116 F.2d 807,
811.
CROSS-DEMAND. Where a person against
whom a demand is made by another, in his turn
makes a demand against that other, these mutual
demands are called "cross-demands." A set-off is
a familiar example. Musselman v. Galligher, 32
Iowa, 383.
CROSS-ERRORS. Errors being assigned by the
respondent in a writ of error, the errors assigned
on both sides are called "cross-errors."
CROSS-EXAMINATION. In practice. The examination of a witness upon a trial or hearing, or
upon taking a deposition, by the party opposed to
the one who produced him, upon his evidence given in chief, to test its truth, to further develop it,
or for other purposes.
CROSS-LAY. The winding of the outer strands
of a rope in a reverse direction to the inner
strands, the "lay" of a strand of rope being the
length of rope within which such strand makes
one complete turn. Macomber & Whyte Rope Co.
v. Hazard Mfg. Co., C.C.A.N.Y., 211 F. 976, 977.
CROSS-SALE. Where a floor broker, holding orders from different customers to buy and sell on
the same terms, cries out the transaction and
makes the sale and purchase to himself at the
price shown by the last sale shown on the exchange, the transaction is called a "cross-sale or
trade," and is illegal under rules of exchange, requiring two brokers to every purchase or sale.
Cohen v. Rothschild, 182 App.Div. 408, 169 N.Y.S.
659, 664.
CROSSED CHECK. See Check.
CROSSING. A portion of a street over which pedestrians may lawfully cross from one side to
the other. Under Laws N.J.1915, P.L. p. 285, §
1, defining crossings to be all duly indicated crossings, marked by pavement or otherwise, at intersection of streets, the most direct route across
the street from curb to curb is a "crossing," where
4.50
CRUELTY
CROWN OFFICE. The criminal side of the court
of king's bench. The king's attorney in this court
is called "master of the crown office." 4 Bl.Comm.
308.
no paved crossing is there necessary. Ferris v.
McArdle, 92 N.J.Law, 580, 106 A. 460, 461.
With reference to railroads, that portion of the
right of way covered by intersection with a street
or highway. International-Great Northern R. Co.
v. Mallard, Tex.Civ.App., 262 S.W. 789, 791. In a
broader sense, the term includes embankments
constructed as necessary approaches to a railroad
track, St. Louis, I. M. & S. Ry. Co. v. Smith, 118
Ark. 72, 175 S.W. 415, 416, and approaches or
embankments reasonably necessary to enable
crossings or bridges to be used, Payne v. Stockton,
147 Ark. 598, 229 S.W. 44, 47. For "Farm Crossing", see that title.
CROWN OFFICE IN CHANCERY. One of the offices of the English high court of chancery, now
transferred to the high court of justice. The principal official, the clerk of the crown, is an officer of
parliament, and of the lord chancellor, in his nonj udicial capacity, rather than an officer of the
courts of law.
CROWN PAPER. A paper containing the list of
criminal cases, which await the hearing or decision
of the court, and particularly of the court of king's
bench; and it then includes all cases arising from
informations quo warranto, criminal informations,
criminal cases brought up from inferior courts by
writ of certiorari, and cases from the sessions.
Brown.
CROWD. "Crowd" is indefinite, since difference
in time and place may shape its meaning, but
there is always implied in the word numbers with
reference to the hour and location. People, on
Complaint of Liroff, v. Phillips, 245 N.Y. 401, 157
N.E. 508, 509.
CROWN. The sovereign power in a monarchy,
especially in relation to the punishment of crimes.
"Felony is an offense of the crown." Finch, Law,
b. 1, c. 16.
An ornamental badge of regal power worn on,
the head by sovereign princes. The word is frequently used when speaking of the sovereign himself, or the rights, duties, and prerogatives belonging to him. Also a silver coin of the value of five
shillings. Wharton.
The facings and backings made to be sold to
dentists to be set by them with appropriate fastenings in the jaws of their patients, when so in
place are commonly called "crowns" or "artificial
crowns." S. S. White Dental Mfg. Co. v. Dental
Co. of America, D.C.Pa., 263 F. 719, 720.
Ship's crown is convex arc of vessel's deck from
side to side. The Indien, C.C.A.Cal., 71 F.2d 752,
757.
CROWN CASES. In English law. Criminal
prosecutions on behalf of the crown, as representing the public; causes in the criminal courts.
CROWN CASES RESERVED. In English law.
Questions of law arising in criminal trials at the
assizes, (otherwise than by way of demurrer,) and
not decided there, but reserved for the consideration of the court of criminal appeal.
CROWN COURT. In English law. The court in
which the crown cases, or criminal business, of
the assizes is transacted.
CROWN DEBTS. In English law. Debts due to
the crown, which are put, by various statutes, upon a different footing from those due to a subject.
CROWN LANDS. The demesne lands of the
crown. In England and Canada, lands belonging
to the sovereign personally or to the government
or nation, as distinguished from such as have
passed into private ownership.
CROWN LAW. Criminal law in England is sometimes so termed, the crown being always the prosecutor in criminal proceedings. 4 Bl.Comm. 2.
CROWN SIDE. The criminal department of the
court of king's bench; the civil department or
branch being called the "plea side." 4 Bl.Comm.
265.
CROWN SOLICITOR. In England, the solicitor
to the treasury acts, in state prosecutions, as solicitor for the crown in preparing the prosecution.
In Ireland there are officers called "crown solicitors" attached to each circuit, whose duty it is to
get up every case for the crown in criminal prosecutions. They are paid by salaries. There is no
such system in England, where prosecutions are
conducted by solicitors appointed by the parish,
or other persons bound over to prosecute by the
magistrates on each committal; but in Scotland
the still better plan exists of a crown prosecutor
(called the "procurator-fiscal," and being a subordinate of the lord-advocate) in every county, who
prepares every criminal prosecution. Wharton.
CROWNER. In old Scotch law. Coroner; a
coroner. "Crowner's quest," a coroner's inquest.
CROY. In old English law. Marsh land. Blount.
CRUCE SIGNATI. In old English law. Signed
or marked with a cross. Pilgrims to the holy land,
or crusaders; so called because they wore the
sign of the cross upon their garments. Spelman.
CRUDE. A flexible term depending largely on
context. In natural state; raw; unrefined; not
artificially altered; unfinished. U. S. v. Richard
& Co., 8 Ct.Cust.App. 304, 305; Nortmann-Duffke
v. Federal Crushed Stone Co., 167 Minn. 333, 209
N.W. 17, 18; Ishimitsu Co. v. U. S., 12 Ct.Cust.App.
477, 479.
CRUEL AND UNUSUAL PUNISHMENT. See
Punishment.
CRUELTY. The intentional and malicious infliction of physical suffering upon living creatures,
particularly human beings; or, as applied to the
latter, the wanton, malicious, and unnecessary
infliction of pain upon the body, or the feelings
and emotions; abusive treatment; inhumanity;
451
CRUELTY
outrage. Jacobs v. Jacobs, 95 Conn. 57, 110 A.
455, 456.
$
Chiefly used in the law of divorce, in such
phrases as "cruel and abusive treatment," "cruel
and barbarous treatment," or "cruel and inhuman
treatment," as to the meaning of which, and of
"cruelty" in this sense, see Rudnick v. Rudnick,
288 Mass. 256, 192 N.E. 501; Martin v. Martin, 154
Pa.Super. 313, 35 A.2d 546, 548; Price v. Price, 181
Miss. 539, 179 So. 855, 857; Campbell v. Campbell,
129 Pa.Super. 106, 194 A. 760, 763; Avdoyan v.
Avdoyan, 265 App.Div. 763, 40 N.Y.S.2d 665, 668;
Lowry v. Lowry, 170 Ga. 349, 153 S.E. 11, 14, 70
A.L.R. 488.
For "Extreme and Repeated Cruelty," see that
title.
As between husband and wife. Those acts which affect
the life, the health, or even the comfort, of the party
aggrieved and give a reasonable apprehension of bodily
hurt, are called "cruelty." What merely wounds the feelings Is seldom admitted to be cruelty, unless the act be
accompanied with bodily injury, either actual or menaced.
Mere austerity of temper, petulance of manners, rudeness
of language, a want of civil attention and accommodation,
even occasional sallies of passion, will not amount to legal
cruelty; a fortiori, the denial of little indulgences and particular accommodations, which the delicacy of the world
is apt to number among its necessaries, is not cruelty. The
negative descriptions of cruelty are perhaps the best, under
the infinite variety of cases that may occur, by showing
what is not cruelty. Evans v. Evans, 1 Hagg.Const. 35;
Westmeath v. Westmeath, 4 Eng.Ecc. 238, 311, 312.
Cruelty includes both willfulness and malicious temper
of mind with which an act is done, as well as a high degree
of pain inflicted. Acts merely accidental, though they
inflict great pain, are not "cruel," in the sense of the word
as used in statutes against cruelty. Comm. v. McClellan,
101 Mass. 34.
Cruelty to Animals
The infliction of physical pain, suffering, or
death upon an animal, when not necessary for
purposes of training or discipline or (in the case
of death) to procure food or to release the animal
from incurable suffering, but done wantonly, for
mere sport, for the indulgence of a cruel and vindictive temper, or with reckless indifference to its
pain. State v. Porter, 112 N.C. 887, 16 S.E. 915;
State v. Bosworth, 54 Conn. 1, 4 A. 248; McKinne
v. State, 81 Ga. 164, 9 S.E. 1091; Waters v. People,
23 Colo. 33, 46 P. 112, 33 L.R.A. 836,
Legal Cruelty
See Legal Cruelty.
CRUISE. A voyage undertaken for a given purpose; a voyage for the purpose of making captures jure belli. The Brutus, 2 Gall. 538, Fed.
Cas.No.2,060.
A voyage or expedition in quest of vessels or
fleets of the enemy which may be expected to sail
in any particular track at a certain season of the
year. The region in which these cruises are performed is usually termed the "rendezvous," or
"cruising latitude." Bouvier.
A report of a timber surveyor showing the
character and amount of timber in a stand. Jones
v. United States, C.C.A.Or., 265 F. 235, 239,
CRUSH. To break by means of pressure. Yagunchok v. Rutledge, 219 Mich. 82, 188 N.W. 412, 413.
It has been defined to mean to compress or
bruise between two hard bodies; to squeeze or
force by pressure so as to destroy the natural condition, shape, or integrity of the parts, or to force
together into a mass. Atlantic Oil Producing Co.
v. Malone, 152 Okl. 68, 3 P.2d 874, 875.
CRY. To call out aloud; to proclaim; to publish;
to sell at auction. "To cry a tract of land." Carr
v. Gooch, 1 Wash., Va., 335 (260).
A clamor raised in the pursuit of an escaping
felon. 4 Bl.Comm. 293. See Hue and Cry.
CRY DE PAIS, or CRI DE PAIS. The hue and
cry raised by the people in ancient times, where
a felony had been committed and the constable
was absent.
CRYER. An auctioneer. Carr v. Gooch, 1 Wash.,
Va., 337, (262.) One who calls out aloud; one who
publishes or proclaims. See Crier.
CRYPTA. A chapel or oratory underground, or
under a church or cathedral. Du Cange.
CUCKING–STOOL. An engine of correction for
common scolds, which in the Saxon language is
said to signify the scolding-stool, though now it
is frequently corrupted into ducking-stool, because
the judgment was that, when the woman was
placed therein, she should be plunged in the water
for her punishment. It was also variously called
a "trebucket," "tumbrel," or "castigatory." 3 Inst.
219; 4 Bl.Comm. 169; Brown. James v. Comm.,
12 Serg. & R., Pa., 220.
CUCKOLD. A man whose wife is unfaithful;
the husband of an adulteress. It is explained that
the word alludes to the habit of the female cuckold, which lays her eggs in the nests of other
birds to be hatched by them. To make a cuckold
of a man is to seduce his wife. Hall v. Huffman,
159 Ky. 72, 166 S.W. 770.
CUEILLETTE. A term of French maritime law.
See A Cueillette.
CUI ANTE DIVORTIUM (L. Lat. The full phrase
was, Cui ipsa ante divortium contradicere non
potuit, whom she before the divorce could not
gainsay). A writ which anciently lay in favor of
a woman who had been divorced from her husband, to recover lands and tenements which she
had in fee-simple, fee-tail, or for life, from him to
whom her husband had aliened them during marriage, when she could not gainsay it; Fitzh.N.B.
240; 3 Bla.Com. 183, n.; Stearns, Real Act. 143;
Booth, Real Act. 188. Abolished in 1833.
CUI BONO. For whose good; for whose use or
benefit. "Cui bono is ever of great weight in all
agreements." Parker, C. J., 10 Mod. 135. Sometimes translated, for what good, for what useful
purpose.
CUI IN VITA (L. Lat. The full phrase was, Cui
in vita sua ipsa contradicere non potuit, whom in
452
CULPA
his lifetime she could not gainsay). 'A writ of
entry which lay for a widow against a person to
whom her husband had in his lifetime aliened her
lands. Fitzh.N.B. 193. It was a method of establishing the fact of death, being a trial with witnesses, but without a jury. The object of the writ
was to avoid a judgment obtained against the husband by confession or default. It is obsolete in
England by force of 32 Hen. VIII, c. 28, § 6. See
6 Co. 8, 9. As to its use in Pennsylvania, see 3
Binn.Appx.; Rep.Comm. on Penn.Civ.Code, 1835,
90. Abolished in England, 1833. Blackstone is
said to have shown little knowledge of its history;
Thayer, Evidence.
CUT JURISDICTIO DATA EST, EA QUOQUE
CONCESSA ESSE VIDENTUR, SINE QUIBUS
JURISDICTIO EXPLICARI NON POTEST. To
whomsoever a jurisdiction is given, those things
also are supposed to be granted, without which
the jurisdiction cannot be exercised. Dig. 2, 1, 2.
The grant of jurisdiction implies the grant of all
powers necessary to its exercise. 1 Kent, Comm.
339.
CUI JUS EST DONANDI, EIDEM ET VENDENDI
ET CONCEDENDI JUS EST. He who has the
right of giving has also the right of selling and
granting. Dig. 50, 17, 163.
CUILIBET IN ARTE SUA PERITO EST CREDENDUM. Any person skilled in his peculiar art
or profession is to be believed, [i. e., when he
speaks of matters connected with such art.] Co.
Litt. 125a. Credence should be given to one
skilled in his peculiar profession. Broom.Max.
932; 1 Bla.Com. 75; Phill.Ev.Cowen & H. notes,
759; 1 Hagg.Ecc. 727; 11 Cl. & F. 85.
CUILIBET LICET JURI PRO SE INTRODUCTO
RENUNCIARE. Any one may waive or renounce
the benefit of a principle or rule of law that exists
only for his protection.
CUI LICET GUOD MAJUS, NON DEBET QUOD
MINUS EST NON LICERE. He who is allowed to
do the greater ought not to be prohibited from doing the less. He who has authority to do the more
important act ought not to be debarred from doing
what is of less importance. 4 Coke 23.
CUICUNQUE ALIQUIS QUID CONCEDIT CONCEDERE VIDETUR ET ID, SINE QUO RES IPSA
ESSE NON POTUIT. Whoever grants anything
to another is supposed to grant that also without
which the thing itself would be of no effect. 11
Co. 52; Broom, Max. 479; Hob. 234; Vaugh. 109;
11 Exch. 775; Shep.Touch. 89; Co.Litt. 56 a.
CUI PATER EST POPULUS NON HABET ILLE
PATREM. He to whom the people is father has
not a father. Co.Litt. 123.
CUIQUE IN SUA ARTE CREDENDUM EST.
Everyone is to be believed in his own art. Dickinson v. Barber, 9 Mass. 227, 6 Am.Dec. 58.
CUJUS EST COMMODUM EJUS DEBET ESSE
INCOMMODUM. Whose is the advantage, his also
should be the disadvantage.
CUJUS EST DARE, EJUS EST DISPONERE,
Wing.Max. 53. Whose it is to give, his it is to dispose; or, as Broom says, "the bestower of a gift
has a right to regulate its disposal." Broom, Max.
459, 461, 463, 464.
CUJUS EST DIVISIO, ALTERIUS EST ELECTIO.
Whichever [of two parties] has the division, [of
an estate,] the choice [of the shares] is the other's. Co.Litt. 166b. In partition between coparceners, where the division is made by the eldest,
the rule in English law is that she shall choose
her share last. Id.; 2 Bl.Comm. 189; 1 Steph.
Comm. 323.
CUJUS EST DOMINIUM EJUS EST PERICULUM. The risk lies upon the owner of the subject.
Tray.Lat.Max. 114.
CUJUS EST INSTITUERE, EJUS EST ABROGARE. Whose right it is to institute, his right it
is to abrogate. Broom, Max. 878, note.
CUJUS EST SOLUM EJUS EST USQUE AD
C4ELUM. Whose is the soil, his it is up to the sky.
Co.Litt. 4a. He who owns the soil, or surface of
the ground, owns, or has an exclusive right to,
everything which is upon or above it to an indefinite height. 9 Coke 54; Shep.Touch. 90; 2 Bl.
Comm. 18; 3 Bl.Comm. 217; Broom.Max. 395.
CUJUS EST SOLUM, EJUS EST USQUE AD
C(ELUM ET AD INFEROS. To whomsoever the
soil belongs, he owns also to the sky and to the
depths. The owner of a piece of land owns everything above and below it to an indefinite extent.
Co.Litt. 4; Shell Oil Co. v. Manley Oil Corporation, D.C.I11., 37 F.Supp. 289, 292.
CUJUS JURIS (i. e., JURISDICTIONIS) EST
PRINCIPALE, EJUSDEM JURIS ERIT ACCESSORIUM. 2 Inst. 493. An accessory matter is
subject to the same jurisdiction as its principal.
CUJUS PER ERROREM DATI REPETITIO EST,
EJUS CONSULTO DATI DONATIO EST. He who
gives a thing by mistake has a right to recover
it back; but, if he gives designedly, it is a gift.
Dig. 50, 17, 53.
CUJUSQUE REI POTISSIMA PARS EST PRINCIPIUM. The , chiefest part of everything is the
beginning. Dig. 1, 2, 1; 10 Coke, 49a.
CUL DE SAC. (Fr. the bottom of a sack.) A
blind alley; a street which is open at one end
only. Bartlett v. Bangor, 67 Me. 467; Talbott v.
Railroad Co., 31 Grat., Va., 691; Hickok v. Plattsburg, 41 Barb., N.Y., 135; Beckham v. State, 64
Cal.App.2d 487, 149 P.2d 296, 300.
CULAGIUM. In old records. The laying up a
ship in a dock, in order to be repaired. Cowell;
Blount.
CULPA. Lat. A term of the civil law, meaning
fault, neglect, or negligence. There are three degrees of culpa,—lata culpa, gross fault or neglect;
levis culpa, ordinary fault or neglect; levissima
culpa, slight fault or neglect,—and the definitions
453
CULPA
of these degrees are precisely the same as those
in our law. Story, Bailm. § 18. This term is to
be distinguished from dolus, which means fraud,
guile, or deceit.
CULPA CARET QUI SCIT SED PROHIBERE
NON POTEST. He is clear of blame who knows,
but cannot prevent. Dig. 50, 17, 50.
CULRACH. In old Scotch law. A species of
pledge or cautioner, (Scottice back borgh,) used
in cases of the replevin of persons from one man's
court to another's. Skene.
CULPA EST IMMISCERE SE REL AD SE NON
PERTINENTI. 2 Inst. 208. It is a fault for any
one to meddle in a matter not pertaining to him.
CULTIVATE. The word "cultivate" means to till,
prepare for crops, manure, plow, dress, sow and
reap, manage and improve in husbandry. Miller v.
Richey, Tex.Civ.App., 173 S.W.2d 490, 493.
CULPA LATA DOLO ZEQUIPARATUR. Gross
negligence is held equivalent to intentional wrong.
CULPA TENET [TENEAT] SUOS AUCTORES.
Misconduct binds [should bind] its own authors.
It is a never-failing axiom that every one is accountable only for his own delicts. Ersk.Inst. 4,
1, 14.
CULPABILIS. Lat. In old English law. Guilty.
Culpabilis de intrusione,—guilty of intrusion. Fleta, lib. 4, c. 30, § 11. Non culpabilis, (abbreviated
to non cul.) In criminal procedure, the plea of
"not guilty." See Culprit.
CULPABLE. Blamable; censurable; involving
the breach of a legal duty or the commission of
a fault. The term is not necessarily equivalent to
"criminal," for, in present use, and notwithstanding its derivation, it implies that the act or conduct
spoken of is reprehensible or wrong but not that
it involves malice or a guilty purpose. "Culpable"
in fact connotes fault rather than guilt. Railway
Co. v. Clayberg, 107 Ill. 651; Cain v. State, 55 Ga.
App. 376, 190 S.E. 371, 374.
As to culpable "Homicide," "Ignorance," "Neglect," and "Negligence," "Wantonness," see those
titles.
It also means that which is deserving of moral blame.
Mercury Motor Transport v. State ex rel. Motor Vehicle
Com'r, 197 Miss. 387, 21 So.2d 25, 28.
CULPA NENA PAR ESTO. DEENA AD MENSURAM DELICTI STATUENDA EST. Let the
punishment be proportioned to the crime. Punishment is to be measured by the extent of the offense.
CULPRIT. A person who is indicted for a criminal offense, but not yet convicted. It is not, however, a technical term of the law; and in its vernacular usage it seems to imply only a light degree of censure or moral reprobation.
Blackstone believes it an abbreviation of the
old forms of arraignment, whereby, on the prisoner's pleading not guilty, the clerk would respond, "culpabilis, prit," e., he is guilty and the
crown is ready. It was (he says) the viva voce
replication, by the clerk, on behalf of the crown,
to the prisoner's plea of non culpabilis; prit being
a technical word, anciently in use in the formula
of joining issue. 4 Bl.Comm. 339.
But a more plausible explanation is that given
by Donaldson, (cited Whart.Lex.,) as follows:
The clerk asks the prisoner, "Are you guilty, or
not guilty?" Prisoner "Not guilty." Clerk, "Qu'il
paroit, [ may it prove so.] How will you be tried?"
Prisoner, "By God and my country." These words
being hurried over, came to sound, "culprit, how
will you be tried?" The ordinary derivation is
from culpa.
CULTIVATED. A field on which a crop of wheat
is growing is a cultivated field, although not a
stroke of labor may have been done in it since the
seed was put in the ground, and it is a cultivated
field after the crop is removed. It is, strictly, a
cultivated piece of ground. Combs v. Rockingham
County Com'rs, 170 N.C. 87, 86 S.E. 963, 964; Angus Cattle Co. v. McLeod, 98 Neb. 108, 152 N.W.
322, 323.
CULTIVATOR. A cropper, which see. Pearson
v. Lafferty, 197 Mo.App. 123, 193 S.W. 40, 41.
CULTURA. A parcel of arable land. Blount.
CULVERTAGE. In old English law. A base kind
of slavery. The confiscation or forfeiture which
takes place when a lord seizes his tenant's estate.
Blount; Du Cange.
CUM ACTIO FUERIT MERE CRIMINAL'S, INSTITUI POTERIT AB INITIO CRIMINALITER
VEL CIVILITER. When an action is merely criminal, it can be instituted from the beginning either
criminally or civilly. Bract. 102.
CUM ADSUNT TESTIMONIA RERUM, QUID
OPUS EST VERBIS? When the proofs of facts
are present, what need is there of words? 2
Bulst. 53.
CUM ALIQUIS RENUNCIAVERIT SOCIETATI,
SOLVITUR SOCIETAS. When any partner renounces the partnership, the partnership is dissolved. Tray. Lat. Max. 118.
CUM CONFITENTE SPONTE MITIUS EST
AGENDUM. 4 Inst. 66. One confessing willingly should be dealt with more leniently.
CUM COPULA. Lat. With copulation, i. e., sexual intercourse. Used in speaking of the validity of a marriage contracted "per verba de futuro cum copula," that is, with words referring to
the future (a future intention to have the marriage solemnized) and consummated by sexual
connection.
CUM DE LUCRO DUORUM QUAERITUR, MELIOR EST CAUSA POSSIDENTIS. When the question is as to the gain of two persons, the cause
of him who is in_ possession is the better. Dig. 50,
17, 126.
454
CUNADES
CUM DUO INTER SE PUGNANTIA REPERIUNTUR IN TESTAMENTO, ULTIMUM RATUM
EST. Where two things repugnant to each other.
are found in a will, the last shall stand. Co. Litt.
112b; Shep. Touch. 451; Broom, Max. 583.
CUM DUO JURA CONCURRUNT IN UNA PERSONA ZEQUUM EST AC SI ESSENT IN DUOBUS. When two rights meet in one person, it is
the same as if they were in two persons.
CUM GRANO SALIS. (With a grain of salt.)
With allowance for exaggeration.
CUM IN CORPORE DISSENTITUR, APPARET
NULLAM ESSE ACCEPTIONEM. When there is
a disagreement in the substance, it appears that
there is no acceptance. Gardner v. Lane, 12 Allen,
Mass., 44.
CUM IN TESTAMENTO AMBIGUE AUT ETIAM
PERPERAM SCRIPTUM EST BENIGNE INTERPRETARI ET SECUNDUM ID QUOD CREDIBILE EST COGITATUM CREDENDUM EST.
Dig. 34, 5, 24. Where an ambiguous, or even an
erroneous, expression occurs in a will, it should
be construed liberally, and in accordance with the
testator's probable meaning. Broom, Max. 568.
CUM LEGITEVIZE NUPTLE FACTIE SUNT, PATREM LIBERI SEQUUNTUR. Children born
under a legitimate marriage follow the condition
of the father.
CUM ONERE. With the burden; subject to an
incumbrance or charge. What is taken cum onere
is taken subject to an existing burden or charge.
CUM PAR DELICTUM EST DUORUM, SEMPER
ONERATUR PETITOR ET MELIOR HABETUR
POSSESSORIS CAUSA. Dig. 50, 17, 154. When
both parties are in fault the plaintiff must always
fail, and the cause of the person in possession be
preferred.
CUM PERA ET LOCULO. With satchel and
purse. A phrase in old Scotch law.
CUM PERTINENTIIS. With the appurtenances.
Bract. fol. 73b.
CUM PRIVILEGIO. The expression of the monopoly of Oxford, Cambridge, and the royal printers to publish the Bible.
CUM QUOD AGO NON VALET UT AGO, VALEAT QUANTUM VALERE POTEST. 4 Kent,
Comm. 493. When that which I do is of no effect
as I do it, it shall have as much effect as it can;
i. e., in some other way.
CUM TESTAMENTO ANNEXO. L. Lat. With
the will annexed. A term applied to administration granted where a testator makes an incomplete will, without naming any executors, or
where he names incapable persons, or where the
executors named refuse to act. If the executor
has died, an administrator de bonis non cum testamento annexo (of the goods not [already] admin-
istered upon with the will annexed) is appointed.
Often abbreviated d. b. n. c. t. a. 2 Bl. Comm. 503,
504.
CUMULATIVE. Additional; heaping up; increasing; forming an aggregate. The word signifies that two things are to be added together,
instead of one being a repetition or in substitution of the other. People v. Superior Court, 10
Wend., N.Y., 285; Regina v. Eastern Archipelago,
Co., 18 Eng. Law & Eq. 183.
As to cumulative "Dividend," "Legacy," "Punishment" and "Sentences," see those titles.
CUMULATIVE EVIDENCE. Additional or corroborative evidence to the same point. That which
goes to prove what has already been established
by other evidence. Glidden v. Dunlap, 28 Me.
383; Parker v. Hardy, 24 Pick., Mass., 248; Waller v. Graves, 20 Conn. 310; Roe v. Kalb, 37 Ga.
459; Purcell Envelope Co. v. United States, 48
Ct.C1. 66, 73.
All evidence material to the issue, after any such evidence has been given, is in a certain sense cumulative;
that is, is added to what has been given before. It tends to
sustain the issue. But cumulative evidence, in legal
phrase, means evidence from the same or a new witness,
simply repeating, in substance and effect, or adding to,
what has been before testified to. Parshall v. Klinck, 43
Barb., N.Y., 212. Evidence is not cumulative merely
because it tends to establish the same ultimate or principally controverted fact. Cumulative evidence is additional evidence of the same kind to the same point. Able
v. Frazier, 43 Iowa, 177; Harlan v. Texas Fuel & Supply
Co., Tex.Civ.App., 160 S.W. 1142, 1146.
Cumulative Offense
One which can be committed only by a repetition of acts of the same kind but committed on
different days. The offense of being a "common
seller" of intoxicating liquors is an example.
Wells v. Corn., 12 Gray., Mass., 328.
Cumulative Remedy
A remedy created by statute in addition to one
which still remains in force. Railway Co. v. Chicago, 148 Ill. 141, 35 N.E. 881; State v. Barboglio,
63 Utah, 432, 226 P. 904, 907; Philip Levy & Co. v.
Davis, 115 Va. 814, 80 S.E. 791, 794; Wulff-Hansen
& Co. v. Silvers, Cal.App., 120 P.2d 677, 680.
Cumulative Voting
A system of voting, by which the elector, having a number of votes equal to the number of officers to be chosen, is allowed to concentrate the
whole number of his votes upon one person, or
to distribute them as he may see fit. For example, if ten directors of a corporation are to be
elected, then, under this system, the voter may
cast ten votes for one person, or five votes for
each of two persons, etc. It is intended to secure
representation of a minority. Bridgers v. Staton, 150 N.C. 216, 63 S.E. 892; Chicago Macaroni
Mfg. Co. v. Boggiano, 202 Ill. 312, 67 N.E. 17;
Attorney General v. McVichie, 138 Mich. 387, 101
N.W. 552.
CUNADES. In Spanish law. Affinity; alliance;
relation by marriage. Las Partidas, pt. 4, tit. 6,
1, 5.
CUNEATOR
CUNEATOR. A coiner. Du Cange. Cuneare,
to coin. Cuneus, the die with which to coin.
Cuneata, coined. Du Cange; Spelman.
CUNNILINGUS. An act of sex perversion committed with the mouth and the female sexual organ. State v. Murry, 136 La. 253, 66 So. 963, 965.
CUNTEY-CUNTEY. In old English law. A kind
of trial, as appears from Bract. lib. 4, tract 3, ca.
18, and tract 4, ca. 2, where it seems to mean, one
by the ordinary jury.
CUR. A common abbreviation of curia.
CUBA. Lat. Care; charge; oversight; guardianship.
In the civil law a species of guardianship which commenced at the age of puberty (when the guardianship
called "tutela" expired,) and continued to the completion
of the twenty-fifth year. Inst. 1, 23, pr.; Id. 1, 25, pr. ;
Hallifax, Civil Law, b. 1, c. 9.
kum v. Maceck Bldg. Corporation, 256 N.Y. 275, 176 N.E.
392, 396. Applied to evidence curative admissibility is the
doctrine that an opponent may reply with similar evidence
whenever it is needed for removing an unfair prejudice
which might otherwise have ensued. Biener v. St. Louis
Public Service Co., Mo.App., 160 S.W.2d 780, 786.
CURATOR. In the Civil Law. A person who is
appointed to take care of anything for another.
A guardian. One appointed to take care of the
estate of a minor above a certain age, a lunatic,
a spendthrift, or other person not regarded by the
law as competent to administer it for himself.
The title was also applied to a variety of public
officers in Roman administrative law. Sproule v.
Davies, 69 App.Div. 502, 75 N.Y.S. 229; Le Blanc
v. Jackson, Tex.Civ.App., 161 S.W. 60, 66; Daniels
v. Metropolitan Life Ins. Co., 135 Pa.Super. 450, 5
A.2d 608, 611.
In Scotch Law
The term means a guardian.
CURAGULOS. One who takes care of a thing.
In Louisiana
CURATE. In ecclesiastical law. Properly, an incumbent who has the cure of souls, but now generally restricted to. signify the spiritual assistant
of a rector or vicar in his cure. An officiating
temporary minister in the English church, who
represents the proper incumbent; being regularly employed either to serve in his absence or as
his assistant, as the case may be. 1 Bl. Comm.
393; 3 Steph. Comm. 88; Brande.
Perpetual Curacy, the office of a curate in a parish where
there is no spiritual rector or vicar, but where a clerk
(curate) is appointed to officiate there by the impropriator.
2 Burn.Ecc.Law, 55. The church or benefice filled by a
curate under these circumstances is also so called.
CURATEUR. In French law. A person charged
with supervising the administration of the affairs
of an emancipated minor, of giving him advice,
and assisting him in the important acts of such
administration. Duverger.
CURATIO. In the civil law. The power or duty
of managing the property of him who, either on
account of infancy or some defect of mind or
body, cannot manage his own affairs. The duty of
a curator or guardian. Calvin.
CURATIVE. Intended to cure (that is, to obviate
the ordinary legal effects or consequences of) defects, errors, omissions or irregularities. Meigs
v. Roberts, 162 N.Y. 371, 56 N.E. 838, 76 Am.St.
Rep. 322.
The word is defined as relating to, or employed
in, the cure of diseases; tending to cure; a remedy. State v. Stoddard, 215 Iowa, 534, 245 N.W.
273, 275, 86 A.L.R. 616.
Applied particularly to statutes, a "curative act" being
a retrospective law passed in order to validate legal proceedings, the acts of public officers, or private deeds or
contracts, which would otherwise be void for defects or
irregularities or for want of conformity to existing legal
requirements. Meigs v. Roberts, 162 N.Y. 371, 56 N.E. 838,
76 Am.St.Rep. 322; one intended to give legal effect to
some past act or transaction which is ineffective because
of neglect to comply with some requirement of law.
Anderson v. Lehmkuhl, 119 Neb. 451, 229 N.W. 773, 777;
Carle v. Gehl, 193 Ark. 1061, 104 S.W.2d 445, 447; also one
enacted to cure past irregularities not jurisdictional. Dun-
A person appointed to take care of the estate
of an absentee.
In Missouri
The term "curator" has been adopted from the
civil law, and it is applied to the guardian of the
estate of the ward as distinguished from the guardian of his person. Duncan v. Crook, 49 Mo. 117.
Curator ad hoc
In the civil law. A guardian for this purpose;
a special guardian.
Curator ad litem
Guardian for the suit. In English law, the corresponding phrase is "guardian ad litem."
Curator bonis
In the civil law. A guardian or trustee appointed to take care of property in certain cases; as
for the benefit of creditors. Dig. 42, 7. In Scotch
law. The term is applied to guardians for minors,
lunatics, etc.
Curatores viarum
Surveyors of the highways.
CURATORSHIP. The office of a curator. Curatorship differs from tutorship, (q. v.) in this; that
the latter is instituted for the protection of property in the first place, and, secondly, of the person;
while the former is intended to protect, first, the
person, and secondly, the property. 1 Lec. El.
Dr. Civ. Rom. 241.
CURATRIX. A woman who has been appointed
to the office of curator; a female guardian.
Cross' Curatrix v. Cross' Legatees, 4 Grat., Va.,
257.
CURATUS NON HABET TITULUM. A curate
has no title, [to tithes.1 3 Bulst. 310.
CURE. The act of healing; restoration to health
from disease, or to soundness after injury. State
456
CURIA
v. Gibson, 199' Iowa 177, 201 N.W. 590; State v.
Stoddard, 215 Iowa, 534, 245 N.W. 273, 275, 86 A.
L.R. 616. Under rule that a vessel and her owner
must provide maintenance, and cure for seaman
injured or falling ill while in service, "cure" is
care, including nursing and medical attention during such period as the duty continues. Calmar S.
S. Corporation v. Taylor, Pa., 303 U.S. 525, 58 S.
Ct. 651, 653, 82 L.Ed. 993.
CURE BY VERDICT. The rectification or rendering nugatory of a defect in the pleadings by
the rendition of a verdict; the court will presume,
after a verdict, that the particular thing omitted
or defectively stated in the pleadings was duly
proved at the trial. State v. Keena, 63 Conn. 329,
28 A. 522; Treanor v. Houghton, 103 Cal. 53, 36
P. 1081.
CURE OF SOULS. In ecclesiastical law. The ecclesiastical or spiritual charge of a parish, including the usual and regular duties of a minister in
charge. State v. Bray, 35 N.C. 290.
CURFEW. An institution supposed to have been
introduced into England by order of William the
Conqueror, which consisted in the ringing of a
bell or bells at eight o'clock at night, at which
signal the people were required to extinguish all
lights in their dwellings, and to put out or rake
up their fires, and retire to rest, and all companies
to disperse. The word is probably derived from.
the French couvre feu, to cover the fire. The curfew is spoken of in 1 Social England 373, as having been ordained by William I, in order to prevent nightly gatherings of the people of England.
But the custom is evidently older than the Norman; for we find an order of King Alfred that
the inhabitants of Oxford should at the ringing
of that bell cover up their fires and go to bed.
And there is evidence that the same practice prevailed at this period in France, Normandy, Spain,
and probably in most of the other countries of
Europe. Henry, Hist. of Britain, vol. 3, 567. It
was doubtless intended as a precaution against
fires, which were very frequent and destructive
when most houses were built of wood. It appears to have met with so much opposition that
in 1103 we find Henry I, repealing the enactment
of his father on the subject; and Blackstone says
that, though it is mentioned a century afterwards,
it is rather spoken of as a time of night than as
a still subsisting custom. Shakespeare frequently
refers to it in the same sense.
three tribes, and each tribe into ten curice, making thirty curice in all. Spelman. The place or
building in which each curia assembled to offer
sacred rites. The place of meeting of the Roman
senate; the senate house. The senate house of
a province; the place where the decuriones assembled. Cod. 10, 31, 2. See Decurio.
CURIA ADMIRALITATIS. The court of admiralty.
CURIA ADVISARI VULT. L. Lat. The court
will advise; the court will consider. A phrase
frequently found in the reports, signifying the
resolution of the court to suspend judgment in a
cause, after the argument, until they have deliberated upon the question, as where there is a new
or difficult point involved. It is commonly abbreviated to cur. adv. vult, or c. a. v.
CURIA BARONIS, OR BARONUM. In old English law. A court-baron. Fleta, lib. 2, C. 53.
CURIA CANCELLABLE OFFICINA JUSTITLE.
2 Inst. 552. The court of chancery is the workshop of justice.
CURIA CHRISTIANITATIS. The ecclesiastical
court.
CURIA CLAUDENDA. The name of a writ to
compel another to make a fence or wall, which
he was bound to make, between his land and the
plaintiff's. Reg. Orig. 155. Now obsolete.
CURIA COMITATUS. The county court
(q.
v.)
CURIA CURSUS AQUIE. A court held by the lord
of the manor of Gravesend for the better management of barges and boats plying on the river
Thames between Gravesend and Windsor, and also
at Gravesend bridge, etc. 2 Geo. II, c. 26.
CURIA DOMINI. In old English law. The lord's
court, house, or hall, where all the tenants met
at the time of keeping court. Cowell.
CURIA LEGITIME AFFIRMATA. A phrase used in old Scotch records to show that the court
was opened in due and lawful manner.
CURIA MAGNA. In old English law. The great
court; one of the ancient names of parliament.
CURIA MAJORIS. In old English law. The
mayor's court. Calth. 144.
CURIA. In old European law. A court. The
palace, household, or retinue of a sovereign. A
judicial tribunal or court held in the sovereign's
palace. A court of justice. The civil power, as
distinguished from the ecclesiastical. A manor;
a nobleman's house; the hall of a manor. A piece
of ground attached to a house; a yard or courtyard. Spelman. A lord's court held in his manor.
The tenants who did suit and service at the lord's
court. A manse. Cowell.
CURIA PARLIAMENT' SUIS PROPRIIS LEGIBUS SUBSISTIT. 4 Inst. 50. The court of parliament is governed by its own laws.
In Roman Law
A division of the Roman people, said to have
been made by Romulus. They were divided into
CURIA PEDIS PULVERIZATI. In old English
law. The court of piedpoudre or piepouders. 3
Bl. Comm. 32. See Court of Piepoudre.
CURIA MILITUM. A court so called, anciently
held at Carisbrook Castle, in the Isle of Wight.
Cowell.
CURIA PALATII. The palace court. It was abolished by 12 & 13 Vict. c. 101.
457
CURIA
CURIA PENTICIARUM. A court held by the
sheriff of Chester, in a place there called the "Pendice" or "Pentice;" probably it was so called from
being originally held under a pent-house, or open
shed covered with boards. Blount.
CURIA PERSON/E. In old records. A parsonage-house, or manse. Cowell.
CURIA REGIS. The king's court. A term applied to the aula regis, the bancus, or communis
bancus, and the iter or eyre, as being courts of
the king, but especially to the aula regis, ( which
title see.)
CURIALITY. In Scotch law. Curtesy. Also the
privileges, prerogatives, or, perhaps, retinue, of a
court.
CURING TITLE. "Clearing", "curing", "straightening out", or "removing cloud from" title denotes
acts or proceedings necessary to render title marketable. Johnston v. Cox, 114 Fla. 243, 154 So.
206.
CURIOSA ET CAPTIOSA INTERPRETATIO IN
LEGE REPROBATUR. A curious [overnice or
subtle] and captious interpretation is reprobated
in law. 1 Balst. 6.
CURNOCK. In old English law. A measure containing four bushels or half a quarter of corn.
Cowell; Blount.
CURRENCY. Coined money and such banknotes
or other paper money as are authorized by law
and do in fact circulate from hand to hand as the
medium of exchange. Griswold v. Hepburn, 2
Duv., Ky., 33; Insurance Co. v. Kupfer, 28 Ill.
332, 81 Am.Dec.' 284. Certificates of deposit are
"Currency." State ex rel. Cole v. Trimble, 307
Mo. 57, 269 S.W. 959, 961; Millikan v. Security
Trust Co., 187 Ind. 307, 118 N.E. 568, 570. Gold
certificate held "currency". Nortz v. U. S., Ct.C1.,
294 U.S. 317, 55 S.Ct. 428, 79 L.Ed. 907, 907 A.L.R.
1346.
The term "money" is synonymous with "currency," and
i mports any currency, token, bank notes, or other circulating medium in general use as the representative of value.
People v. Miller, 292 Ill. App. 643, 11 N.E.2d 827.
CURRENT. Running; now in transit; whatever
is at present in course of passage; as "the current month." Wharton v. Morris, 1 Dail. 124, 1
L.Ed. 65; Miller v. White, Tex.Civ.App., 264 S.W.
176, 178; Richardson v. Board of Education of
City of Ashland, 208 Ky. 464, 271 S.W. 549, 550;
American Fruit Growers v. United States, C.C.A.
Cal., 105 F.2d 722, 726.
A continuous movement in the same direction,
as a fluid or stream. Buckeye Incubator Co. v.
Blum, D.C.Ohio, 17 F.2d 456, 458.
Passing in time or belonging to the time actually passing, now passing, present in its course, as
the current month, and as applied to current obligations it denotes the obligations then passing
or present in its progress, the service rendered
and the compensation therefor measured by the
time of the occurrence of the event. Pecos Mer-
cantile Co. v. Texlite, Inc., Tex.Civ.App., 65 S.W.2d
811, 812.
The word "current," when used as an adjective, has
many meanings, and definition depends largely on word
which it modifies, or subject-matter with which it is associated. Commissioner of Internal Revenue v. Keller,
C.C.A., 59 F.2d 499, 501.
CURRENT ACCOUNT. An open, running, or unsettled account between two parties. Tucker v.
Quimby, 37 Iowa 19; Franklin v. Camp, 1 N.J.Law,
196; Wilson v. Calvert, 18 Ala. 274; Leland v.
Johnson, 227 Iowa 520, 288 N.W. 595, 597; Miller
v. Boyce, 219 Iowa 534, 258 N.W. 764.
CURRENT CATALOGUES. Under contract to sell
automobiles as shown in current catalogues, "current catalogues" means such catalogues as should
from time to time be issued, and not merely the
catalogues in existence on execution of the contract. Imperial Motorcar Co. v. Skinner, 16 Ala.
App. 443, 78 So. 641, 642.
CURRENT DEBT FUND RULE. The "current
debt fund rule" is that creditors who have supplied
labor, materials, or equipment essential to operation of railroad before adjudication of insolvency
will be entitled to lien on properties prior to lien
of pre-existing mortgages, if current operating
revenues have been diverted to payment of principal or interest on mortgages, or to enhancement
of mortgage security before current operating expenses have been met. Village of Stillwater v.
Hudson Valley Ry. Co., 255 N.Y. 144, 309, 174 N.E.
306.
CURRENT EXPENSES. Ordinary, regular, and
continuing expenditures for the maintenance of
property, the carrying on of an office, municipal
government, etc. State v. Board of Education, 68
N.J.Law, 496, 53 A. 236; Babcock v. Goodrich, 47
Cal. 510; St. Louis-San Francisco Ry. Co. v.
Forbess, 111 Oki. 48, 237 P. 596, 597.
In connection with municipal finances, the usual, ordinary, running, and incidental expenses of a municipality.
Atchison, T. & S. F. Ry. Co. v. City of Topeka, 95 Kan.
747, 149 P. 697. The term is equivalent to "running
expenses," meaning any continuing regular expenditures
in connection with the business. Meridian Line Drainage
Dist. v. Wiss, 258 Ill. 600, 101 N.E. 941, 942.
CURRENT FUNDS. This phrase means gold or
silver, or something equivalent thereto, and convertible at pleasure into coined money. Bull v.
Bank, 123 U.S. 105, 8 S.Ct. 62, 31 L.Ed. 97; Henderson v. Farmers' Sa y . Bank of Harper, 199 Iowa
496, 202 N.W. 259, 261.
CURRENT LIABILITIES. The phrase "current
liability" carries with it the idea of a liability that
is presently enforceable. Warren Co. v. Commissioner of Internal Revenue, C.C.A.Ga., 135 F.2d
679, 684, 685.
CURRENT MAINTENANCE. "Current maintenance" is defined as the expense occasioned in
keeping the physical property in the condition required for continued use during its service life.
Lindheimer v. Illinois Bell Telephone Co., Ill., 292
U.S. 151, 54 S.Ct. 658, 78 L.Ed. 1182.
458
CURTESY
CURRENT MONEY. The currency of the country; whatever is intended to and does actually
circulate as currency; every species of coin or
currency. Miller v. McKinney, 5 Lea, Tenn., 96.
In this phrase the adjective "current" is not synonymous with "convertible." It is employed to describe money which passes from hand to hand,
from person to person, and circulates through the
community, and is generally received. Money is
current which is received as money in the common
business transactions, and is the common medium
in barter and trade. Ferrell v. State, 68 Tex.Cr.R.
487, 152 S.W. 901, 905; Kupfer v. Marc, 28 Ill.
388; Conwell Pumphrey, 9 Ind. 135, 68 Am.Dec.
611.
CURRENT OBLIGATIONS. The word "current"
means passing in time or belonging to the time
actually passing, now passing, present in its
course, as the current month, and as applied to
current obligations it denotes the obligations then
passing or present in its progress, the service
rendered and the compensation therefor measured
by the time of the occurrence of the event. Pecos
Mercantile Co. v. Texlite, Inc., Tex.Civ.App., 65
S.W.2d 811, 812.
CURRENT PRICE. This term means the same
as "market value," "market price," "going price,"
the price that runs or flows with the market.
Hoff v. Lodi Canning Co., 51 Cal.App. 299, 196 P.
779, 780; Ford v. Norton, 32 N.M. 518, 260 P. 411,
414, 55 A.L.R. 261; Cases of Champagne, 23 Fed.
Cas. 1168.
CURRENT RATE OF WAGES. Minimum, maximum, and intermediate amounts, indeterminately
varying from time to time and dependent on the
class and kind of work done, the efficiency of the
workman, etc. Connally v. General Const. Co.,
269 U.S. 385, 46 S.Ct. 126, 128, 70 L.Ed. 322.
"CURRENT REVENUES". Defined as including
taxes for ensuing year and all liquid assets, such
as delinquent taxes, licenses, fines, and other revenues which, in judgment of authorities, are collectible. Athens Nat. Bank v. Ridgebury Tp.,
303 Pa. 479, 154 A. 791, 792.
CURRENT VALUE. The current value of imported commodities is their common market price at
the place of exportation, without reference to the
price actually paid by the importer. Tappan v.
U. S., 23 Fed.Cas. 690.
CURRENT WAGES. Such as are paid periodically, or from time to time as the services are rendered or the work is performed; more particularly, wages for the current period, hence not including such as are past-due. Sydnor v. Galveston,
Tex.App., 15 S.W. 202; Bell v. Indian Live Stock
Co., Tex., 11 S.W. 346, 3 L.R.A. 642; Bruton v.
Tearle, 7 Cal.2d 48, 59 P.2d 953, 957, 106 A.L.R.
580.
CURRENT YEAR. The year now running. Doe
v. Dobell, 1 Adol. & El. 806; Clark v. Lancaster
County, 69 Neb. 717, 96 N.W. 593. Ordinarily, a
calendar year in which the event under discussion
took place; Buffalo County v. Bowker, 197 N.W.
620, 622, 111 Neb. 762; Clark v. Tennessee Chemical Company, 167 Ga. 248, 145 S.E. 73, 75; Empire
Petroleum Co. v. Southern Pipe Line Co., 174 Ark.
33, 294 S.W. 5, 6; unless the context shows a different intention; Miller v. White, Tex.Civ.App.,
264 S.W. 176, 178; People v. Central Illinois Public
Service Co., 324 Ill. 85, 154 N.E. 438, 439.
CURRICULUM. The year; of the course of a
year; the set of studies for a particular period,
appointed by a university.
CURRIT QUATUOR PEDIBUS. L. Lat. It runs
upon four feet; or, as sometimes expressed, it
runs upon all fours. A phrase used in arguments
to signify the entire and exact application of a
case quoted. "It does not follow that they run
quatuor pedibus." 1 W.B1. 145.
CURRIT TEMPUS CONTRA DESIDES ET SUI
JURIS CONTEMPTORES. Time runs against the
slothful and those who neglect their rights.
Bract. fols. 100b, 101.
CURSING. Malediction; imprecation; execration; profane words intended to convey hate and
to invoke harm; swearing. Johnson v. State, 15
Ala.App. 194, 72 So. 766.
CURSITOR BARON. An officer of the court of
exchequer, who is appointed by patent under the
great seal to be one of the barons of the exchequer. The office was abolished by St. 19 & 20 Vict.
c. 86.
CURSITORS. Clerks in the chancery office, whose
duties consisted in drawing up those writs which
were of course, de cursu, whence their name.
They were abolished by St. 5 & 6 Wm. IV, c. 82.
Spence, Eq.Jur. 238; 4 Inst. 82.
CURSO. In old records. A ridge. Cursones
terrce, ridges of land. Cowell.
CURSOR. An inferior officer of the papal court.
CURSORY EXAMINATION. An inspection for
defects visible or ascertainable by ordinary examination. Coll v. Lehigh Valley R. Co., 3 N.J.Misc.
869, 130 A. 225, 226.
CURSUS CURIAE EST LEX CURVE. 3 Bulst. 53.
The practice of the court is the law of the court.
CURTAIL. "Curtail" means to cut off the end or
any part of; hence to shorten, abridge; diminish*,
lessen, reduce; and has no such meaning as abolish. State v. Edwards, 207 La. 506, 21 So.2d 624,
625.
CURTESY. The estate to which by common law
a man is entitled, on the death of his wife, in the
lands or tenements of which she was seised in
possession in fee-simple or in tail during her coverture, provided they have had lawful issue born
alive which might have been capable of inheriting
the estate. It is a freehold estate for the term of
his natural life. 1 Washb.Real Prop. 127; 2 BL
Comm. 126; Co.Litt. 30a; Dozier v. Toalson,
180 Mo. 546, 79 S.W. 420, 103 Am.St.Rep. 586;
459
CURTESY
Templeton v. Twitty, 88 Tenn. 595, 14 S.W. 435;
Decker v. Decker, 205 Ky. 69, 265 S.W. 483, 485.
CUSSEDNESS. "Wantonness" is a synonym for
what is popularly known as "cussedness," and
"cussedness" is a disposition to perversity. Universal Concrete Pipe Co. v. Bassett, 130 Ohio St.
567, 200 N.E. 843, 845.
Initiate and consummate
Curtesy initiate is the interest which a husband
has in his wife's estate after the birth of issue
capable of inheriting, and before the death of the
'wife; after her death, it becomes an estate "by
the curtesy consummate." Wait v. Wait, 4 Barb.,
N.Y. 205; Churchill v. Hudson, C.C.Mo., 34 F.
14; Pattison v. Baker, 148 Tenn. 399, 255 S.W.
710, 29 A.L.R. 1334; Bucci v. Popovich, 93 N.J.
Eq. 121, 115 A. 95, 96; Hopper v. Gurtman, 126
N.J. 263, 18 A.2d 245, 246, 250, 133 A.L.R. 621.
CURTEYN. The name of King Edward the Confessor's sword. It is said that the point of it was
broken, as an emblem of mercy. (Mat. Par. in
Hen. III.) Wharton.
CURTILAGE. The inclosed space of ground and
buildings immediately surrounding a dwellinghouse. 1 Chit.Gen.Pr. 175; United States v. Vlahos, D.C.Or., 19 F.Supp. 166, 169.
In its most comprehensive and proper legal signification, it includes all that space of ground and
buildings thereon which is usually inclosed within
the general fence immediately surrounding a principal messuage and outbuildings, and yard closely
adjoining to a dwelling-house, but it may be large
enough for cattle to be levant and couchant therein. 1 Chit.Gen.Pr. 175.
The curtilage of a dwelling-house is a space,
necessary and convenient and habitually used for
the family purposes, and the carrying on of domestic employments. It includes the garden, if
there be one, and it need not be separated from
other lands by fence. State v. Shaw, 31 Me. 523;
Derrickson v. Edwards, 29 N.J.Law, 474, 80 Am.
Dec. 220; Bare v. Commonwealth, 122 Va. 783, 94
S.E. 168, 172; State v. Lee, 120 Or, 643, 253 P.
533, 534.
A piece of ground commonly used with the dwelling
house. Fugate v. Commonwealth, 294 Ky. 410, 171 S.W.2d
1020, 1021. A small piece of land, not necessarily inclosed,
around the dwelling house, and generally includes the
buildings used for domestic purposes in the conduct of
family affairs. Bruner v. State, 47 Okl.Cr. 241, 288 P. 369,
370; a courtyard or the space of ground adjoining the
dwelling house necessary and convenient and habitually
used for family purposes and the carrying on of domestic
employments. Jones v. Commonwealth, 239 Ky. 110, 38
S.W.2d 971, 973. A piece of ground within the common
inclosure belonging to a dwelling house, and enjoyed with
it, for its more convenient occupation. Italian-American
Building & Loan Ass'n of Passaic County v. Russo, 132
N.J.Eq. 319, 28 A.2d 196, 198; People v. Gedney, 10 Hun.,
N.Y., 154. In Michigan it has been extended to include
more than an inclosure near the house. People v. Taylor,
2 Mich. 250.
CURTILES TERRIE. In old English law. Court
lands. Cowell. See Court Lands.
CURTILLIUM. A curtilage; the area or space
within the inclosure of a dwellinghouse. Spelman.
CURTIS. A garden; a space about a house; a
house, or manor; a court, or palace; a court of
justice; a nobleman's residence. Spelman.
CUSSORE. A term used in Hindostan for the
discount or allowance made in the exchange of
rupees, in contradistinction to batta, which is the
sum deducted. Enc.Lond.
CUSTA, CUSTAGIUM, CUSTANTIA. Costs.
CUSTODE ADMITTENDO, CUSTODE AMOVENDO. Writs for the admitting and removing of
guardians.
CUSTODES.
In Roman Law
Guardians; observers; inspectors. Persons
who acted as inspectors of elections, and who
counted the votes given. Tayl.Civil Law, 193.
In Old English Law
Keepers; guardians; conservators.
CUSTODES LIBERTATIS ANGLLE AUCTORITATE PARLIAMENTI. The style in which writs
and all judicial processes were made out during
the great revolution, from the execution of King
Charles I. till Oliver Cromwell was declared protector.
CUSTODES PACIS. Guardians of the peace. 1
Bl.Comm. 349.
CUSTODIA LEGIS. In the custody of the law.
Stockwell v. Robinson, 9 Houst., Del., 313, 32 A.
528; Troll v. City of St. Louis, 257 Mo. 626, 168
S.W. 167, 178; Hopping v. Hopping, 233 Iowa 993,
10 N.W.2d 87, 152 A.L.R. 436.
CUSTODIAM LEASE. In English law. A grant
from the crown under the exchequer seal, by
which the custody of lands, etc., seised in the
king's hands, is demised or committed to some
person as custodee or lessee thereof. Wharton.
CUSTODY. The care and keeping of anything;
as when an article is said to be "in the custody of
the court." People V. Burr, 41 How.Prac., N.Y.,
296; Emmerson v. State, 33 Tex.Cr.R. 89, 25 S.W.
290; Roe v. Irwin, 32 Ga. 39. Also the detainer of
a man's person by virtue of lawful process or
authority; actual imprisonment. In a sentence
that the defendant "be in custody until," etc., this
term imports actual imprisonment. Smith v.
Com., 59 Pa. 320; Turner v. Wilson, 49 Ind. 581;
Ex parte Powers, D.C.Ky., 129 F. 985. Detention;
charge; control; possession. The term is very
elastic and may mean actual imprisonment or
physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Jones v. State, 26 Ga.App. 635, 107 S.E. 166;
J. 0. Nessen Lumber Co. v. Ray H. Bennett Lumber Co., 223 Mich. 349, 193 N.W. 789, 790; State
ex rel. Bricker v. Griffith, Ohio App., 36 N.E.2d
489, 491; Willoughby v. State, 87 Tex.Cr.R. 40,
219 S.W. 468, 470; Carpenter v. Lord, 88 Or. 128,
460
CUSTOM
171 P. 577, 579, L.R.A.1918D, 674; Little v. State,
100 Tex.Cr.R. 167, 272 S.W. 456, 457; Randazzo
v. U. S., C.C.A.Mo., 300 F. 794, 797.
The word is defined as the care and possession of a thing,
and means the keeping, guarding, care, watch, inspection,
preservation or security of a thing, and carries with it the
idea of the thing being within the immediate personal care
and control of the person to whose custody it is subjected;
charge ; immediate charge and control, and not the final,
absolute control of ownership, implying responsibility for
the protection and preservation of the thing in custody.
Southern Carbon Co. v. State, 171 Misc. 566, 13 N.Y.S.2d
7, 9.
"Custody" of property means such a relation towards it
as would constitute possession if the person having custody
had it on his own account. State v. Columbus State Bank,
124 Neb. 231, 246 N.W. 235, 238. "Custody" means a keeping, guardianship, the state of being held in keeping or
under guard, restraint of liberty, imprisonment, and "fetter" is a synonym. Browder v. Cook, D.C.Idaho, 59
F.Supp. 225, 231.
CUSTODY OF THE LAW. Property is in the custody of the law when it has been lawfully taken
by authority of legal process, and remains in the
possession of a public officer (as, a sheriff) or an
officer of a court (as, a receiver) empowered by
law to hold it. Gilman v. Williams, 7 Wis. 334, 76
Am.Dec. 219; McFarland Carriage Co. v. Solanes,
C.C.La., 108 V. 532; Allan v. Hargadine-McKittrick Dry Goods Co., 325 Mo. 400, 28 S.W.2d 670,
673.
CUSTOM. A usage or practice of the people,
which, by common adoption and acquiescence,
and by long and unvarying habit, has become
compulsory, and has acquired the force of a law
with respect to the place or subject-matter to
which it relates. Adams v. Insurance Co., 95 Pa.
355, 40 Am.Rep. 662; King v. Shelton, Tex.Civ.
App., 252 S.W. 194, 195; Conahan v. Fisher, 233
Mass. 234, 124 N.E. 13, 15; Lawrence v. Portland
Ry., Light & Power Co., 91 Or. 559, 179 P. 485,
486; U. S. Shipping Board Emergency Fleet Corporation v. Levensaler, 53 App.D.C. 322, 290 F. 297,
300.
A "custom" is a practice or course of acting. Goslin v.
Kurn, 351 Mo. 395, 173 S.W.2d 79, 86.
Ordinary or usual way of doing a thing, habit ; practice.
Adelman v. Altman, 209 Mo.App. 583, 240 S.W. 272, 276;
Kent v. Town of Patterson, 141 N.Y.S. 932, 933, 80 Misc.
Rep. 560 ; Maeder Steel Products Co. v. Zanello, 109 Or.
562, 220 P. 155, 161; Carter v. Sioux City Service Co., 160
Iowa 78, 141 N.W. 26, 29.
It results from a long series of actions, constantly
repeated, which have, by such repetition and by uninterrupted acquiescence, acquired the force of a tacit and common consent. Louisville & N. R. Co. v. Reverman, 243 Ky.
702, 49 S.W.2d 558, 560.
A law not written, established by long usage, and the
consent of our ancestors. Termes de la Ley; Cowell;
Bract.fol. 2. Portuguese Beneficial Ass'n v. Xavier, 59 R.I.
265, 195 A. 231, 233. If it be universal, it is common law;
if particular to this or that place, it is then properly custom. 3 Salk. 112.
Customs result from a long series of actions constantly
repeated, which have, by such repetition, and by uninterrupted acquiescence, acquired the force of a tacit and
common consent. Civil Code La..art. 3.
It differs from prescription, which is personal and is
annexed to the person of the owner of a particular estate;
while the other is local, and relates to a particular district.
An instance of the latter occurs where the question is upon
the manner of conducting a particular branch of trade at a
certain place; of the former, where a certain person and
his ancestors, or those whose estates he has, have been
entitled to a certain advantage or privilege, as to have
common of pasture in a certain close, or the like. The
distinction has been thus expressed : "While prescription
is the making of a right, custom is the making of a law."
Lawson, Usages & Cust. 15, note 2.
Classification
Customs are general, local or particular. General customs are such as prevail throughout a
country and become the law of that country, and
their existence is to be determined by the court.
Bodfish v. Fox, 23 Me. 95,. 39 Am.Dec. 611. Or as
applied to usages of trade and business, a general
custom is one that is followed in all cases by all
persons in the same business in the same territory, and which has been so long established that
persons sought to be charged thereby, and all
others living in the vicinity, may be presumed to
have known of it and to have acted upon it as
they had occasion. Sturges v. Buckley, 32 Conn.
267; Railroad Co. v. Harrington, 192 Ill. 9, 61
N.E. 622. Local customs are such as prevail only
in some particular district or locality, or in some
city, county, or town. Clough v. Wing, 2 Ariz. 371,
17 P. 457. Particular customs are nearly the same,
being such as affect only the inhabitants of some
particular district. 1 Bl.Comm. 74.
Custom of Merchants
A system of customs or rules relative to bills of
exchange, partnership, and other mercantile matters, and which, under the name of the "lex mercatoria," or "law merchant," has been ingrafted into and made a part of, the common law. 1 BL
Comm. 75; 1 Steph.Comm. 54; 2 Burrows, 1226,
1228.
Custom of York
A custom of intestacy in the province of York
similar to that of London. Abolished by 19 & 20
Vict. c. 94.
Customs and Services
Annexed to the tenure of lands are those which
the tenants thereof owe unto their lords, and
which, if withheld, the lord might anciently have
resorted to "a writ of customs and services" to
compel them. Cowell. But at the present day he
would merely proceed to eject the tenant as upon
a forfeiture, or claim damages for the subtraction. Brown.
Customs of London
Certain particular customs, peculiar to that
city, with regard to trade, apprentices, 'Widows,
orphans and a variety of other matters; contrary to the general law of the land, but confirmed by act of parliament. 1 Bl.Comm. 75,
Special Custom
A particular or local custom; one which, in
respect to the sphere of its observance, does not
extend throughout the entire state or country, but
is confined to some particular district or locality.
1 Bl.Comm. 67; Bodfish v. Fox, 23 Me. 95, 39 Am.
Dec. 611,
461
CUSTOM
CUSTOM. DUTIES. Taxes on the importation and
exportation of commodities; the tariff or tax assessed upon merchandise, imported from, or exported to a foreign country. United States v.
Sischo, D.C.Wash., 262 F. 1001, 1005.
CUSTOM-HOUSE. In administrative law. The
house or office where commodities are entered for
importation or exportation; where the duties,
bounties, or drawbacks payable or receivable upon
such importation or exportation are paid or received; and where ships are cleared out, etc.
CUSTOM-HOUSE BROKER. One whose occupation it is, as an agent, to arrange entries and other
custom-house papers, or transact business, at any
port of entry, relating to the importation or exportation of goods, wares, or merchandise. 14
St. at Large, 117. A person authorized by the
commissioners of customs to act for parties, at
their option, in the entry or clearance of ships
and the transaction of general business. Wharton; State v. William J. Oberle, Inc., La.App., 140
So. 239, 240.
CUSTOMARILY. Means usually, habitually, according to the customs, general practice or usual
order of things, regularly. Fuller Brush Co. v.
Industrial Commission of Utah, 99 Utah 97, 104
P.2d 201, 203, 129 A.L.R. 511.
CUSTOMARY. According to custom or usage;
founded on, or growing out of, or dependent on,
a custom (q. v.); ordinary; usual; common.
Kent v. Town of Patterson, 80 Misc.Rep. 560, 141
N.Y.S. 932, 933; Montgomery v. O'Donnell, 178
Iowa 588, 159 N.W. 1025, 1026; Woods v. Postal
Telegraph-Cable Co., 205 Ala. 236, 87 So. 681, 686,
27 A.L.R. 834.
CUSTOMARY COURT-BARON. See Court-Baron.
CUSTOMARY DISPATCH. In charter party. Due
diligence according to lawful, reasonable and wellknown custom of port or ports involved. Context and conditions existing or contemplated will,
of course, affect the meaning of the phrase. Wasson v. Stetson, Cutler & Co., D.C.Mass., 214 F. 329,
333; Taisho Kaiun Kabushiki Kaisha v. Gano
Moore Co., D.C.Del., 14 F.2d 985, 986.
CUSTOMARY ESTATES. Estates which owe
their origin and existence to the custom of the
manor in which they are held. 2 Bl.Comm. 149.
CUSTOMARY FREEHOLD. In English law. A
variety of copyhold estate, the evidences of the
title to which are to be found upon the court rolls;
the entries declaring the holding to be according
to the custom of the manor, but it is not said to be
at the will of the lord. The incidents are similar
to those of common or pure copyhold. 1 Steph.
Comm. 212, 213, and note.
CUSTOMARY INTERPRETATION. See Interpretation.
CUSTOMARY SERVICES. Such as are due by
ancient custom or prescription only.
CUSTOMARY TENANTS. Tenants holding by
custom of the manor.
CUSTOME SERRA PRISE STRICTE. Custom
shall be taken [is to be construed] strictly. Jenk.
Cent. 83.
CUSTOMER. One who regularly or repeatedly
makes purchases of, or has business dealings with,
a tradesman or business house. Aiken Mills v.
United States, D.C.S.C., 53 F.Supp. 524, 526; Arkwright Corporation v. United States, D.C.Mass., 53
F.Supp. 359, 361. Ordinarily, one who has had
repeated business dealings with another. Lyons
v. Otter Tail Power Co., 70 N.D. 681, 297 N.W. 691,
693; Gallopin v. Continental Casualty Co., 290 Ill.
App. 8, 7 N.E.2d 771, 774. A buyer, purchaser, or
patron. Nichols v. Ocean Accident & Guarantee
Corporation, 70 Ga.App. 169, 27 S.E.2d 764, 766.
CUSTOMERS'GOODS. The words "customers'
goods," as used in statement of claim on fire policy referring to merchandise destroyed as "customers' goods," in their ordinary sense, mean
goods belonging to insured's customers in his
custody as a bailee for the purpose of his trade.
Sagransky v. Tokio Marine & Fire Ins. Co., 92
Pa.Super. 500, 502.
CUSTOMER'S MAN. One who has duty to greet
customers of broker, when they appear in office
on business, to assist them in placing their orders,
and generally to see that their wants are taken
care of. Fenner & Beane v. Lincoln, Tex.Civ.App.,
101 S.W.2d 305, 308; an employee of a brokerage
house who solicits from the investing public orders for the purchase and sale of commodities
and securities to be executed upon various commodities and securities exchanges in the United
States. Gould v. Witter, 10 Wash.2d 553, 117 P.
2d 210, 211. The term includes all employees who
are regularly engaged in the solicitation of marginal business or the handling of customers' accounts, or who advise with customers about the
purchase and sale of securities. Clothier v.
Beane, 187 Okl. 693, 105 P.2d 752, 756.
CUSTOMS. This term is usually applied to those
taxes which are payable upon goods and merchandise imported or exported. Story, Const. § 949;
Pollock v. Trust Co., 158 U.S. 601, 15 S.Ct. 912, 39
L.Ed. 1108; Marriott v. Brune, 9 How. 632, 13 L.
Ed. 282.
The duties, toll, tribute, or tariff payable upon
merchandise exported or imported. These are
called "customs" from having been paid from time
immemorial. Expressed in law Latin by custuma,
as distinguished from consuetudines, which are
usages merely. 1 Bl. Comm. 314.
CUSTOMS CONSOLIDATION ACT. The statute
16 & 17 Viet. c. 107, which has been frequently
amended. See 2 Steph. Comm. 563.
CUSTOMS COURT. By virtue of Act May 28,
1926, c. 411, § 1, 44 Stat. 669, 19 U.S.C.A. § 405a,
the "United States Customs Court" became the
title of what had theretofore been known as the
"Board of General Appraisers." Ex parte Bake-
462
CUTWAL
lite Corporation, 279 U.S. 438, 49 S.Ct. 411, 73 L.
Ed. 789. Its decisions are appealable to the "Court
of Customs and Patent Appeals" (q. v.) in all cases as to the construction of the law and facts respecting the classification of merchandise and the
rate of duty imposed thereon, and the fees and
charges connected therewith, and all appealable
questions as to the court's jurisdiction, and as
to the laws and regulations governing the collection of the customs revenues.
CUSTOS. Lat. A custodian, guard, keeper, or
warden; a magistrate.
CUSTOS BREVIUM. The keeper of the writs.
A principal clerk belonging to the courts of
queen's bench and common pleas, whose office it
was to keep the writs returnable into those courts.
The office was abolished by 1 Wm. IV, c. 5.
CUSTOS FERARUM. A gamekeeper. Townsh.
Pl. 265.
CUSTOS HORREI REGII. Protector of the royal
granary. 2 Bl. Comm. 394.
CUSTUMA ANTIQUA SIVE MAGNA. (Lat. Ancient or great duties.) The duties on wool, sheepskin, or wool-pelts and leather exported were so
called, and were payable by every merchant, stranger as well as native, with the exception that merchant strangers paid one-half as much again as
natives. 1 Bl. Comm. 314.
CUSTUMA PARVA ET NOVA. (Small and new
customs.) Imposts of 3d. in the pound, due formerly in England from merchant strangers only,
for all commodities, as well imported as exported.
This was usually called the "aliens duty," and
was first granted in 31 Edw. I. 1 Bl. Comm. 314;
4 Inst. 29.
CUT. A wound made with a sharp instrument.
State v. Patza, 3 La.Ann. 512; State v. Cody, 18
Or. 506, 23 Pac. 891; State v. Mairs, 1 N.J.Law,
453; the term is not limited to severance by use
of a sharp instrument, but also Means to fell, and
in industry, to reduce by or as by removing a
part. Waselinko v. Volpe Coal Co., 152 Pa.Super.
156, 31 A.2d 444, 445.
CUSTOS MARIS. In old English law. Warden
of the sea. The title of a high naval officer among
the Saxons and after the Conquest, corresponding
with admiral.
In Mining
A surface opening in the ground intersecting a
vein. McLaughlin v. Bardsen, 50 Mont. 177, 145
P. 954, 955.
CUSTOS MORUM. The guardian of morals. The
court of queen's bench has been so styled. 4 Steph.
Comm. 377.
CUT-OVER LAND. Land which has been logged;
from which desired timber has been removed.
Carlisle-Pennell Lumber Co. v. Joe Creek Shingle
Co., 131 Wash. 501, 230 P. 425; Tennessee Mining
& Mfg. Co. v. New River Lumber Co., C.C.A.Tenn.,
5 F.2d 559, 560.
CUSTOS PLACITORUM CORONAE. In old English law. Keeper of the pleas of the crown. Bract.
fol. 14b. Cowell supposes this office to have been
the same with the custos rotulorum. But it seems
rather to have been another name for "coroner."
Crabb, Eng. Law, 150; Bract. fol. 136b.
CUSTOS ROTULORUM. Keeper of the rolls.
An officer in England who has the custody of the
rolls or records of the sessions of the peace, and
also of the commission of the peace itself. He is
always a ' justice of the quorum in the county
where appointed and is the principal civil officer
in the county. 1 Bl. Comm. 349; 4 Bl. Comm. 272.
CUSTOS SPIRITUALIUM. In English ecclesiastical law. Keeper of the spiritualities. He who
exercises the spiritual jurisdiction of a diocese during the vacancy of the see. Cowell.
CUSTOS STATUM HIEREDIS IN CUSTODIA EXISTENTIS MELIOREM, NON DETERIOREM,
FACERE POTEST. 7 Coke, 7. A guardian can
make the estate of an existing heir under his
guardianship better, not worse.
CUSTOS TEMPORALIUM. In English ecclesiastical law. The person to whom a vacant see or
abbey was given by the king, as supreme lord.
His office was, as steward of the goods and profits,
to give an account to the escheator, who did the
like to the exchequer.
CUT SHELL. One in which the part containing
the shot is nearly severed from the part containing powder, so as to be projected in a unit, and
inflict a more dangerous wound than if the shot
were scattered. White v. State, 195 Ala. 681, 71
So. 452, 454.
CUTCHERRY. In Hindu law. Corrupted from
Kachari. A court; a hall; an office; the place
where any public business is transacted.
CUTH, COUTH. Sax. Known, knowing. Uncuth,
unknown. See Couthutlaugh; Uncuth.
CUTHRED. A knowing or skillful counsellor.
CUTLER. Either a man who makes edged tools
or one who grinds them. American Stainless
Steel Co. v. Ludlum Steel Co., C.C.A.N.Y., 290 F.
103, 106.
• CUTPURSE. One who steals by the method of
cutting purses; a common practice when men
wore their purses at their girdles, as was once the
custom. Wharton.
CUTTER OF THE TALLIES. In old English law.
An officer in the exchequer, to whom it belonged
to provide wood for the tallies, and to cut the
sum paid upon them, etc.
CUTWAL, KATWAL. The chief officer of police
CUSTOS TERRIE. In old English law. Guardian, warden, or keeper of the land.
or superintendent of markets in a large town or
city in India.
463
CWT
CWT. A hundred-weight; one hundred and
twelve pounds. Helm v. Bryant, 11 B. Mon. (Ky.)
64.
CYRCE. In Saxon law. A church.
CYRICBRYCE. A breaking into a church.
Blount.
CY. In law French. Here. ( Cy-apres, hereafter;
cy-devant, heretofore.) Also as, so.
CYCLE. A measure of time; a space in which
the same revolutions begin again; a periodical
space of time. Enc. Lond. In electrical nomenclature is two successive reversals of directions of
electromotive force or current or full period of alternative current. Chicago Pneumatic Tool Co. v.
Black & Decker Mfg. Co., Cust. & Pat.App., 39 F.
2d 684, 685.
CYCLONE. "A violent storm, often of vast extent, characterized by high winds rotating about
a calm center of low atmospheric pressure. Popularly, any violent and destructive windstorm."
Tupper v. Massachusetts Bonding & Insurance
Co., 156 Minn. 65, 194 N.W. 99, 100; Cedergren v.
Massachusetts Bonding & Insurance Co., C.C.A.
Minn., 292 F. 5, 6; the term includes the hurricane, typhoon, bagino, and other tropical storms.
Federal Life Ins. Co. v. Hall, 90 Colo. 581, 11 P.
2d 215, 216.
CYNE-BOT, or CYNE-GILD. The portion belong.
ing to the nation of the mulct for slaying the
king, the other portion or were being due to his
family. Blount.
CYNEBOTE. A mulct anciently paid by one who
killed another, to the kindred of the deceased.
Spelman.
CYPHONISM. That kind of punishment used by
the ancients, and still used by the Chinese, called
by Staunton the "wooden collar," by which the
neck of the malefactor is bent or weighed down.
Enc. Lond.
CY-PRES. As near as [possible]. The rule of
cy-pres is a rule for the construction of instruments in equity, by which the intention of the
party is carried out as near as may be, when it
would be impossible or illegal to give it literal
effect. Thus, where a testator attempts to create
a perpetuity, the court will endeavor, instead of
making the devise entirely void, to explain the
will in such a way as to carry out the testator's
general intention as far as the rule against perpetuities will allow. So in the case of bequests
to charitable uses; and particularly where the
language used is so vague or uncertain that the
testator's design must be sought by construction.
Beekman v. Bonsor, 23 N.Y. 308, 80 Am.Dec. 269;
Doyle v. Whalen, 87 Me. 414, 32 A. 1022, 31 L.
R.A. 118; Philadelphia v. Girard, 45 Pa. 28, 84 Am.
Dec. 470; People v. Braucher, 258 Ill. 604, 101 N.
E. 944, 946, 47 L.R.A., N.S., 1015; Tincher v. Arnold, C.C.A.Ill., 147 F. 665; Crane v. Morristown
School Foundations, 120 N.J.Eq. 583, 187 A. 632,
635,
CYRICSCEAT. (From cyric, church, and sceat,
a tribute). In Saxon law. A tribute or payment
due to the church. Cowell.
CYROGRAPHARIUS. In old English law. A cyrographer; an officer of the bancus, or court of
common bench. Fleta, lib. 2, c. 36.
CYROGRAPHUM. A chirograph, (which see.)
CZAR. (Also written zar, tsar, tzar, etc.) The
title of the former emperors of Russia, derived
from the old Slavonic cesar, king or emperor,
which, although long held to be derived from the
Roman title Caesar, is almost certainly of Tartar
origin. 8 Encyc. Americana, 378. The Slavonic
word ultimately represents the Latin Caesar, but
came, according to Miklosich, through the medium
of a Germanic language in which the word had
the general sense "emperor." 2 New English
Dict. (Oxford, 1893), page 1308.
In the beginning of the 10th century the Bulgarian
prince Symeon assumed this title, which remained attached to the Bulgarian crown. In 1346 it was adopted by
Stephen Duschan, king of Serbia. Among the Russians
the Byzantine emperors were so called, as were also the
khans of the Mongols that ruled in Russia. Ivan III, grand
prince of Moscow, held the title, and Ivan IV, the Terrible,
in 1547, caused himself to be crowned as czar. In 1721 the
Senate and clergy conferred on Peter I, in the name of the
nation, the title Emperor of Russia, for which in Russia
the Latin word imperator Is used. 8 Encyc.Americana,
378. Peter the Great introduced the title imperator, "emperor," and the official style then became "Emperor of all
the Russias, Tsar of Poland, and Grand Duke of Finland" ;
but the Russian popular appellation continued to be tsar
(the preferable modern spelling). 2 New English Diet.
1308. The last tsar was Nicholas II, who abdicated on
March 15, 1917, and was later executed.
CZAREVITCH. (Also spelled czarewich, tsarevitch, and, after the Polish, czarowitz, czarowitch,
etc. 2 New English Dict. 1308.) A son of the
Russian czar and czarina. Originally a title.
Webster, Dict. The word was used as a title
during the time of Peter I and his son, Alexis,
after whose death imperial princes were called
grand dukes. 6 New Internatl. Encyc. 420.
CZAREVNA, TS AREVNA. A daughter of the
Russian czar. Originally a title. Webster, Dict.
As a title, however, the word has been superseded,
since the time of Paul I (1754-1801), by that of
grand duchess. New Internatl. Encyc. 420; 2
New English Diet. 1308. See Czarevitch; Cesarevna.
CZARINA. The title of former empresses of
Russia.
CZARITZA, TSARITSA. The Russian title for
which czarina is in ordinary English use. 2 New
English Dist. 1308.
464
DAILY
D
The fourth letter of the English alphabet. It
is used as an abbreviation for a number of words,
the more important and usual of which are as
follows:
1. Digestum, or Digesta, that is, the Digest or
Pandects in the Justinian collections of the civil
law. Citations to this work are sometimes indicated by this abbreviation, but more commonly by
"Dig."
2. Dictum. A remark or observation, as in the
phrase "obiter dictum," (q. v.).
3. Demissione. "On the demise." An action
of ejectment is entitled "Doe d. Stiles v. Roe;"
that is, "Doe, on the demise of Stiles, against
Roe."
4. "Doctor." . As in the abbreviated forms of
certain academical degrees. "M. D.," "doctor of
medicine;" "LL.D.," "doctor of laws;" "D. C. L.,"
"doctor of civil law."
5. "District." Thus, "U. S. Cir. Ct. W. D. Pa."
stands for United States Circuit Court for the
Western District of Pennsylvania.
6. "Dialogue." Used only in citations to the
work called "Doctor and Student."
In the Roman system of notation, this letter
stands for five hundred; and, when a horizontal
dash or stroke is placed above it, it denotes five
thousand.
D. B. Defined as day book, double biased, double
breasted and, if capitalized, it means Doomsday
Book, though there is no authoritative definition
of d/b or d/b/a as a symbol or abbreviation in
a legal document. City of St. Louis v. Stubley,
Mo.App., 154 S.W.2d 407, 410.
D. B. A. Abbreviation for "doing business as."
Lieberman v. Atlantic Mut. Ins. Co., 385 P.2d 53,
55, 62 Wash.2d 922.
D. B. E. An abbreviation for de bene esse, ( q. v.).
D. B. N. An abbreviation for de bonis non; descriptive of a species of administration.
D. C. An abbreviation standing either for "District Court," or "District of Columbia."
D. E. R. I. C. An abbreviation used for De ea re
ita censuere, (concerning that matter have so decreed,) in recording the decrees of the Roman
senate. Tayl. Civil Law, 564, 566.
D. J. An abbreviation for "District Judge."
D. P. An abbreviation for Domus Procerum, the
house of lords.
D. W. I. In genealogical tables, a common abbreviation for "died without issue."
DA TUA DUM TUA SUNT, POST MORTEM
TUNC TUA NON SUNT. 3 Bulst. 18. Give the
things which are yours whilst they are yours; after death they are not yours.
DABIS? DABO. Lat. (Will you give? I will
give.) In the Roman law. One of the forms of
making a verbal stipulation. Inst. 3, 15, 1; Bract.
fol. 15b.
DACION. In Spanish law. The real and effective
delivery of an object in the execution of a contract.
DACTYLOGRAPHY. Dactylography is the scientific study of finger prints as a means of identification. State v. Steffen, 210 Iowa, 196, 230 N.W.
536, 537, 78 A.L.R. 748.
DAGGE. A kind of gun. 1 How. State Tr. 1124,
1125.
DAGGER. Any straight knife, worn on person
and capable of inflicting death, except pocket
knife. Dagger is a generic term covering dirk, stiletto, poniard, etc. People v. Syed Shah, 91 Cal.
App. 716, 205 P.2d 1081, 1083.
DAGUS, or DAIS. The raised floor at the upper
end of a hall.
DAILY. Every day; every day in the week;
every day in the week except one. A newspaper
which is published six days in each week is a
"daily" newspaper. Richardson v. Tobin, 45 Cal.
30; Tribune Pub. Co. v. Duluth, 45 Minn. 27, 47
N.W. 309; City of Bellingham v. Bellingham Pub.
Co., 116 Wash. 65, 198 P. 369; State ex rel. Item
Co. v. Commissioner of Public Finances of City of
New Orleans, 161 La. 915, 109 So. 675, 676.
DAILY BALANCES, AVERAGE DAILY BALANCE. In school depository law. "Daily balances" means the various balances for the different days in the period for which interest is to be
paid, and the "average daily balance" for the interest period means the sum of these daily balances divided by the number of days in the interest period. Jones v. Marrs, 114 Tex. 62, 263 S.W.
570, 574.
DAILY OCCUPATION. The same as "usual occupation". International Brotherhood of Boiler
Makers, Iron Shipbuilders & Helpers of America
v. Huval, 133 Tex. 136, 126 S.W.2d 476, 478.
D. S. An abbreviation for "Deputy Sheriff." Jones
County Land Co. v. Fox, 120 Miss. 798, 83 So. 241,
242.
DAILY RATE OF PAY. As used in Workmen's
Compensation Law. Means one-sixth of the average weekly earnings of the employee during a
six-day week. Boyett v. Urania Lumber Co., 8 La.
App. 132, 133.
D. S. B. An abbreviation for debitum sine brevi,
or debit sans breve.
DAILY WAGES. As used in statute authorizing
compensation for loss of an eye, means amount
Black's Law Dictionary Revised 4th Ed.-30
465
DAIRY
which could be earned by working ordinary number of hours, irrespective of enforced idleness during working hours and overtime employment.
Carlson v. Condon-Kiewit Co., 135 Neb. 587, 283
N.W. 220, 221.
DAIRY. An establishment for the sale or distribution of milk or milk products. State v. McCosh, 134 Neb. 780, 279 N.W. 775, 777.
DARER, or DIKER. Ten hides. Blount.
DALE and SALE. Fictitious names of places, used in the English books, as examples "The manor
of Dale and the manor of Sale, lying both in
Vale."
DALUS, DAILUS, DAILIA. A certain measure
of land; such narrow slips of pasture as are left
between the plowed furrows in arable land. Cowell.
DAM. A construction of wood, stone, reinforced
concrete or other materials, made across a stream
for the purpose of penning back the waters. This
word is used in two different senses. It properly
means the work or structure, raised to obstruct
the flow of the water in a river; but, by a wellsettled usage, it is often applied to designate the
pond of water created by this obstruction. Burnham v. Kempton, 44 N.H. 89; Colwell v. Water
Power Co., 19 N.J.Eq. 248; Mining Co. v. Hancock,
101 Cal. 42, 31 P. 112; State ex rel. Priegel v.
Northern States Power Co., 242 Wis. 345, 8 N.W.
2d 350, 352.
DAMAGE. Loss, injury, or deterioration, caused
by the negligence, design, or accident of one person to another, in respect of the latter's person
or property. The word is to be distinguished from
its plural,-"damages,"-which means a compensation in money for a loss or damage. An injury
produces a right in them who have suffered any
damage by it to demand reparation of such damage from the authors of the injury. By damage,
we understand every loss or diminution of what
is a man's own, occasioned by the fault of another. 1 Ruth. Inst. 399.
The harm, detriment, or loss sustained by reason of an injury. Yazoo & M. V. R. Co. v. Fields,
188 Miss. 725, 195 So. 489, 490.
Synonymous with "condemnation money." State v.
Hale, Tex.Civ.App., 96 S.W.2d 135, 139. "Injury". Dohring v. Kansas City, 228 Mo.App. 519, 71 S.W.2d 170, 171.
"Loss." Glinz v. State, 70 N.D. 776, 298 N.W. 238, 239;
Wells v. Thomas W. Garland, Inc., Mo., 39 S.W.2d 409, 411.
DAMAGE-CLEER. A fee assessed of the tenth
part in the common pleas, and the twentieth part
in the queen's bench and exchequer, out of all
damages exceeding five marks recovered in those
courts, in actions upon the case, covenant, trespass, etc., wherein the damages were uncertain;
which the plaintiff was obliged to pay to the prothonotary or the officer of the court wherein he
recovered, before he could have execution for the
damages. This was originally a gratuity given to
the prothonotaries and their clerks for drawing
special writs and pleadings; but it was taken
away by statute, since which, if any officer in
these courts took any money in the name of damage-deer, or anything in lieu thereof, he forfeited
treble the value. Wharton.
DAMAGE FEASANT or FAISANT. Doing damage. A term applied to a person's cattle or beasts
found upon another's land, doing damage by treading down the grass, grain, etc. 3 Bl. Comm. 7,
211; Tomlins. This phrase seems to have been
introduced in the reign of Edward III, in place of
the older expression "en son damage," (in damno
suo.) Crabb, Eng. Law, 292.
DAMAGE TO PERSON. Bodily or physical injury directly resulting from wrongful act, whether lying in trespass or trespass on the case, and
does not include torts directly affecting the person but affecting only the feelings and reputation.
Young v. Aylesworth, 35 R.I. 259, 86 A. 555, 556;
Texas Employers' Ins. Ass'n v. Jimenez, Tex.Civ.
App., 267 S.W. 752, 758; Howard v. Lunaburg,
192 Wis. 507, 213 N.W. 301, 303; Wilson v. Grace,
273 Mass. 146, 173 N.E. 524, 528.
DAMAGE TO TWO PERSONS. In bond for payment of damages that limited amount payable
for any one accident. Where widow sued to recover damages to deceased and his estate and
also her pecunary loss, there was "damage to two
persons" within the bond. Ehlers v. Gold, 169
Wis. 494, 173 N.W. 325, 327.
DAMAGED. Made less valuable, less useful, or
less desirable. Cleveland, C., C. & St. L. Ry. Co.
v. Mumford, 208 Ind. 655, 197 N.E. 826, 835.
Synonymous with term "injuriously affected" within
eminent domain statutes. Alabama Power Co. v. City of
Guntersville, 235 Ala. 136, 177 So. 332, 337, 114 A.L.R. 181;
term "injuriously affected" as used in condemnation statutes, is synonymous. Hirt v. City of Casper, 56 Wyo. 57,
103 P.2d 394, 398.
DAMAGED GOODS. Goods, subject to duties,
which have received some injury either in the voyage home or while bonded in warehouse.
DAMAGES. A pecuniary compensation or indemnity, which may be recovered in the courts by
any person who has suffered loss, detriment, or
injury, whether to his person, property, or rights,
through the unlawful act or omission or negligence of another. Scott v. Donald, 165 U.S. 58, 17
S.Ct. 265, 41 L.Ed. 632; Wainscott v. Loan Ass'n,
98 Cal. 253, 33 P. 88; Strong v. Neidermeier, 230
Mich. 117, 202 N.W. 938, 940; Greer v. Board of
Com'rs of Knox County, 33 Ohio App. 539, 169 N.
E. 709, 710.
Compensation for the loss or injury suffered. Holmes
Electric Protective Co. of Philadelphia v. Goldstein, 147 Pa.
Super. 506, 24 A.2d 161, 165; In re Rushford's Estate, 111
Vt. 494, 18 A.2d 175, 176; Brown v. Cummins Distilleries
Corporation, D.C.Ky., 56 F.Supp. 941, 942. A just compensation or reparation for a loss or injury sustained. McNaghten Loan Co. v. Sandifer, 137 Kan. 353, 20 P.2d 523,
526. All factors going to make up total amount which
plaintiff may recover under correct principles of law. Binder v. Harris, 267 Mass. 162, 166 N.E. 707, 708. Reasonable
compensation for legal injury. Sechrist v. Bowman, 307
Pa. 301, 161 A. 332, 335. The award made to a person because of a legal wrong done to him by another. Eklund v.
Evans, 211 Minn. 164, 300 N.W. 617, 619. The estimated
reparation in money for detriment or injury sustained, and
466
DAMAGES
as payment for or indemnity for injuries. Sycamore Preserve Works v. Chicago & N. W. R. Co., 284 I11. App. 445, 1
N.E.2d 522, 526. The pecuniary compensation, recompense,
or satisfaction for an injury sustained, Fogle v. Frazel, 201
La. 899, 10 So.2d 695, 698. A sum awarded as a fair measure of compensation to plaintiff, the amount being, as near
as can be estimated, that by which he is the worse for the
defendant's wrongdoing. Chafin v. Gay Coal & Coke Co.,
113 W.Va. 823, 169 S.E. 485, 487. A sum of money assessed
by a jury on finding for the plaintiff or successful party in
an action, as a compensation for the injury done him by
the opposite party. 2 BI.Comm. 438; Co.Litt. 257a; 2
Tidd, Pr. 869, 870. In its early signification the term included "costs", the terms are now regarded as distinct,
State ex rel. Marcri v. City of Bremerton, 8 Wash.2d 93,
111 P.2d 612, 616. Synonymous with: "compensation",
Maryland Casualty Co. v. Pitman, 70 Ga.App. 670, 29 S.E.2d
102; "condemnation money", Eldridge v. Sutton, 171 Okl.
11, 41 P.2d 680, 682; "judgment", Stearns v. Ritchie, 128
Me. 368, 147 A. 703, 705. In the ancient usage, the word
"damages" was employed in two significations. According
to Coke, its proper and general sense included the costs of
suit, while its strict or relative sense was exclusive of costs.
10 Coke, 116, 117; Co.Litt. 257a; 9 East, 299. The latter
meaning has alone survived.
Actual damages
Real, substantial and just damages, or the
amount awarded to a complainant in compensation for his actual and real loss or injury, as opposed on the one hand to "nominal" damages,
and on the other to "exemplary" or "punitive"
damages. Ross v. Leggett, 61 Mich. 445, 28 N.W.
695, 1 Am.St.Rep. 608; Gatzow v. Buening, 106
Wis. 1, 81 N.W. 1003, 49 L.R.A. 475; Osborn v.
Leach, 135 N.C. 628, 47 S.E. 811, 66 L.R.A. 648;
Winans v. Chapman, 104 Kan. 664, 180 P. 266, 267.
Synonymous with "compensatory damages" and
with "general damages." Ringgold v. Land, 212
N.C. 369, 193 S.E. 267, 268; News Leader Co. v.
Kocen, 173 Va. 95, 3 S.E.2d 385, 391, 122 A.L.R.
842; Anderson v. Alcus, Tex.Civ.App., 42 S.W.2d
294, 296.
Affirmative damages
In admiralty law, the damages which a respondent in a libel for injuries to a vessel may recover,
which may. be in excess of any amount which the
libellant would be entitled to claim. Ebert v. The
Reuben Doud, D.C.Wis., 3 F. 520.
Civil damages
Those awarded against a liquor-seller to the
relative, guardian, or employer of the person to
whom the sales were made, on a showing that the
plaintiff has been thereby injured in person, property, or means of support. Headington v. Smith,
113 Iowa 107, 84 N.W. 982.
Compensatory damages
Compensatory damages are such as will compensate the injured party for the injury sustained, and nothing more; such as will simply make
good or replace the loss caused by the wrong or
injury. McKnight v. Denny, 198 Pa. 323, 47 A.
970; Wade v. Power Co., 51 S.C. 296, 29 S.E. 233,
64 Am.St.Rep. 676; Gatzow v. Buening, 106 Wis.
1, 81 N.W. 1003, 49 L.R.A. 475.
Consequential damages
Such damage, loss, or injury as does not flow
directly and immediately from the act of the par-
ty, but only from some of the consequences or results of such act. Swain v. Copper Co., 111 Tenn.
430, 78 S.W. 93; McKibbin v. Pierce, Tex.Civ.App.,
190 S.W. 1149, 1151; Mawson v. Vess Beverage
Co., Mo.App., 173 S.W.2d 606, 613; U. S. v. Chicago, B. & Q. R. Co., C.C.A.Minn., 82 F.2d 131,
136, 106 A.L.R. 942.
The term means sometimes damage which is so remote
as not to be actionable; sometimes damage which, though
somewhat remote, is actionable; or damage which, though
actionable, does not follow immediately, in point of time,
upon the doing of the act complained of. Eaton v. Railroad Co., 51 N.H. 504, 12 Am.Rep. 147.
Contingent damages
Where a demurrer has been filed to one or more
counts in a declaration, and its consideration is
postponed, and meanwhile other counts in the
same declaration, not demurred to, are taken as
issues, and tried, and damages awarded upon
them, such damages are called "contingent damages."
Continuing damages
Are such as accrue from the same injury, or
from the repetition of similar acts, between two
specified periods of time.
Damages ultra
Additional damages claimed by a plaintiff not
satisfied with those paid into court by the defendant.
Direct damages
Direct damages are such as follow immediately
upon the act done; Eaton v. Railroad Co., 51 N.H.
504, 12 Am.Rep. 147; City of Dublin v. Ogburn,
142 Ga. 840, 83 S.E. 939; McKibbin V. Pierce, Tex.
Civ.App., 190 S.W. 1149, 1151; Washington & 0.
D. Ry. v. Westinghouse Electric & Mfg. Co., 120
Va. 620, 89 S.E. 131, 133.
Double damages
Twice the amount of actual damages as found
by the verdict of a jury allowed by statute in some
cases of injuries by negligence, fraud, or trespass. Cross v. United States, 6 Fed.Cas. 892;
Daniel v. Vaccaro, 41 Ark. 329.
Excessive damages
Damages awarded by a jury which are grossly
in excess of the amount warranted by law on the
facts and circumstances of the case; unreasonable or outrageous damages. Taylor v. Giger,
Hardin, Ky., 587; Harvesting Mach. Co. v. Gray,
114 Ind. 340, 16 N.E. 787.
Exemplary damages
Exemplary damages are damages on an increased scale, awarded to the plaintiff over and
above what will barely compensate him for his
property loss, where the wrong done to him was
aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct
on the part of the defendant, and are intended to
solace the plaintiff for mental anguish, laceration
of his feelings, shame, degradation, or other ag-
467
DAMAGES
gravations of the original wrong, or else to punish the defendant for his evil behavior or to make
an example of him, for which reason they are
also called "punitive" or "punitory" damages or
"vindictive" damages, and (vulgarly) "smart-money." Springer v. Fuel Co., 196 Pa.St. 156, 46 A.
370; Scott v. Donald, 165 .U.S. 58, 17 S.Ct. 265, 41
L.Ed. 632; Gillingham v. Railroad Co., 35 W.Va.
588, 14 S.E. 243, 14 L.R.A. 798; Murphy v. Hobbs,
7 Colo. 541, 5 P. 119, 49 Am.Rep. 366. It is said
that the idea of punishment does not enter into
the definition; the term being employed to mean
an increased award in view of supposed aggravation of the injury to the feelings of plaintiff by the
wanton or reckless act of defendant. Brause v.
Brause, 190 Iowa 329, 177 N.W. 65, 70.
Fair damages
See Fair Damages.
Fee damages
Damages sustained by and awarded to an abutting owner of real property occasioned by the
construction and operation of an elevated railroad in a city street, are so called, because compensation is made to the owner for the injury to,
or deprivation of, his easements of light, air, and
access, and these are parts of the fee. Dode v.
Railway Co., 70 Hun, 374, 24 N.Y.S. 422; People
v. Barker, 165 N.Y. 305, 59 N.E. 151.
General damages
General damages are such as the law itself
implies or presumes to have accrued from the
wrong complained of, for the reason that they
are its immediate, direct, and proximate result,
or such as necessarily result from the injury, or
such as did in fact result from the wrong, directly
and proximately, and without reference to the
special character, condition, or circumstances of
the plaintiff. Mood v. Telegraph Co., 40 S.C. 524,
19 S.E. 67; Hopkins v. Veo, 98 Vt. 433, 129 A. 157,
158; United States Frumentum Co. v. Lauhoff,
C.C.A.Mich., 216 F. 610, 617; Kane v. New Idea
Realty Co., 104 Conn. 508, 133 A. 686, 687.
Imaginary damages
This term is sometimes used as equivalent to
"exemplary," "vindictive," or "punitive" damages.
Murphy v. Hobbs, 7 Colo. 541, 5 P. 119, 49 Am.
Rep. 366.
Inadequate damages
Damages are called "inadequate," within the
rule that an injunction will not be granted where
adequate damages at law could be recovered for
the injury sought to be prevented, when such a
recovery at law would not compensate the parties and place them in the position in which they
formerly stood. Insurance Co. v. Bonner, 7 Colo.
App. 97, 42 P. 681.
Intervening damages
Such damages to an appellee as result from the
delay caused by the appeal. McGregor v. Balch,
17 Vt. 568; Roberts v. Warner, 17 Vt. 46, 42 Am.
Dec. 478.
Irreparable damages
In the law pertaining to injunctions, damages
for which no certain pecuniary standard exists
for measurement. Philadelphia Ball Club, Limited, v. Lajoie, 202 Pa. 210, 51 A. 973, 58 L.R.A.
227. Damages not easily ascertainable at law.
Krich v. Zemel, 96 N.J.Eq. 208, 124 A. 449, 450.
With reference to public nuisances which a private party may enjoin, the term includes wrongs
of a repeated and continuing character, or which
occasion damages estimable only by conjecture,
and not by any accurate standard. Bernard v.
Willamette Box & Lumber Co., 64 Or. 223, 129 P.
1039, 1042.
Land damages
A term sometimes applied to the amount of
compensation to be paid for land taken under
the power of eminent domain or for injury to, or
depreciation of, land adjoining that taken. People v. Hilts, 27 Misc.Rep. 290, 58 N.Y.S. 434; In re
Lent, 47 App.Div. 349, 62 N.Y.S. 227.
Liquidated damages and penalties
The term is applicable when the amount of the
damages has been ascertained by the judgment in
the action, or when a specific sum of money has
been expressly stipulated by the parties to a bond
or other contract as the amount of damages to be
recovered by either party for a breach of the
agreement by the other. Keeble v. Keeble, 85 Ala.
552, 5 So. 149; Eakin v. Scott, 70 Tex. 442, 7 S.W.
777; Cochrane v. Forbes, 267 Mass. 417, 166 N.E.
752, 753; Varno v. Tindall, 164 Tenn. 642, 51 S.W.
2d 502, 503; Norwood Morris Plan Co. v. McCarthy, 295 Mass. 597, 4 N.E.2d 450, 454, 107 A.L.
R. 1215; Factory Realty Corporation v. CorbinHolmes Shoe Co., 312 Mass. 325, 44 N.E.2d 671,
674. The purpose of a penalty is to secure performance, while the purpose of stipulating damages is to fix the amount to be paid in lieu of performance. Christianson v. Haugland, 163 Minn. 73,
203 N.W. 433, 434; Davidow v. Wadsworth Mfg.
Co., 211 Mich. 90, 178 N.W. 776, 777, 12 A.L.R.
605; Forsyth v. Central Foundry Co., 240 Ala.
277, 198 So. 706, 710. The essence of a penalty is
a stipulation as in terrorem while the essence of
liquidated damages is a genuine covenanted preestimate of such damages. Shields v. Early, 132
Miss. 282, 95 So. 839, 840. For other cases pertaining to the distinction between a penalty and
liquidated damages, see Fiscal Court of Franklin
County v. Kentucky Public Service Co., 181 Ky.
245, 204 S.W. 77, 79; In re Liberty Doll Co., D.C.
N.Y., 242 F. 695, 701; Miller v. Blockberger, 111
Ohio St. 798, 146 N.E. 206, 209; Armstrong v. Irwin, 26 Ariz. 1, 221 P. 222, 225, 32 A.L.R. 609.
Necessary damages
A term said to be of much wider scope in the
law of damages than "pecuniary." It embraces
all those consequences of an injury usually denominated "general" damages, as distinguished
from special damages; whereas the phrase "pe-
468
DAMAIOUSE
cuniary damages" covers a smaller class of damages within the larger class of "general" damages.
Browning v. Wabash Western R. Co., Mo., 24 S.
W. 746.
Nominal damages
Nominal damages are a trifling sum awarded
to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but
still the law recognizes a technical invasion of
his rights or a breach of the defendant's duty, or
in cases where, although there has been a real
injury, the plaintiff's evidence entirely fails to
show its amount. Seeling v. Missouri, K. & T. Ry.
Co., 287 Mo. 343, 230 S.W. 94, 102; City of Rainier
v. Masters, 79 Or. 534, 155 P. 1197, 1198, L.R.A.
1916E, 1175; Springer v. Fuel Co., 196 Pa. 156, 46
A. 370.
Pecuniary damages
Such as can be estimated in and compensated
by money; not merely the loss of money or salable property or rights, but all such loss, deprivation, or injury as can be made the subject of cal:
culation and of recompense in money. Walker v.
McNeill, 17 Wash. 582, 50 P. 518; Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967.
Permanent damages
Damages awarded on theory that cause of injury is fixed and that the property will always
remain subject to it. Chambers v. Spruce Lighting Co., 81 W.Va. 714, 95 S.E. 192, 194.
Presumptive damages
A term occasionally used as the equivalent of
"exemplary" or "punitive" damages. Murphy v.
Hobbs, 7 Colo. 541, 5 P. 119, 49 Am.Rep. 366.
Prospective damages
Damages which are expected to follow from
the act or state of facts made the basis of a plaintiff's suit; damages which have not yet accrued,
at the time of the trial, but which, in the nature
of things, must necessarily, or most probably, result from the acts or facts complained of.
Proximate damages
Proximate damages are the immediate and direct damages and natural results of the act complained of, and such as are usual and might have
been expected. Remote damages are those attributable immediately to an intervening cause,
though it forms a link in an unbroken chain of
causation, so that the remote damage would not
have occurred if its elements had not been set
in motion by the original act or event. Pielke v.
Railroad Co., 5 Dak. 444, 41 N.W. 669; Chambers
v. Everding & Farrell, 71 Or. 521, 143 P. 616, 619.
Remote damages
The unusual and unexpected result, not reasonably to be anticipated from an accidental or unusual combination of circumstances-a result beyond which the negligent party has no control.
Chambers v. Everding & Farrel, 71 Or. 521, 143
P. 616, 620.
Damage is said to be too remote to be actionable when it is not the legal and natural consequence of the act complained of.
The terms "remote damages" and "consequential damages" are not synonymous nor to be used interchangeably;
all remote damage is consequential, but it is by no means
true that all consequential damage is remote. Eaton v.
Railroad Co., 51 N.H. 511, 12 Am.Rep. 147; Chambers v.
Everding & Farrell, 71 Or. 521, 143 P. 616, 620.
Special damages
Those which are the actual, but not the necessary, result of the injury complained of, and
which in fact follow it as a natural and proximate
consequence in the particular case, that is, by
reason of special circumstances or conditions.
Wallace v. Ah Sam, 71 Cal. 197, 12 P. 46, 60 Am.
Rep. 534; Lawrence v. Porter, C.C.A.Mich., 63 F.
62, 11 C.C.A. 27, 26 L.R.A. 167; Huyler's v. RitzCarlton Restaurant & Hotel Co. of Atlantic City,
D.C.Del., 6 F.2d 404, 406. Those which are the
natural, but not the necessary, result of the injury. Butte Floral Co. v. Reed, 65 Mont. 138, 211
P. 325, 330; Ralph N. Blakeslee Co. v. Rigo, 94
Conn. 481, 109 A. 173,175; Erick Bowman Remedy
Co. v. Jensen Salsbery Laboratories, C.C.A.Minn.,
17 F.2d 255, 259, 52 A.L.R. 1187.
Speculative damages
Prospective or anticipated damages from the
same acts or facts constituting the present cause
of action, but which depend upon future developments which are contingent, conjectural, or improbable.
Substantial damages
A sum, assessed by way of damages, which is
worth having; opposed to nominal damages,
which are assessed to satisfy a bare legal right.
Wharton. Considerable in amount and intended
as a real compensation for a real injury.
Temporary damages
Damages allowed for intermittent and occasional wrongs, such as injuries to real estate,
where cause thereof is removable or abatable.
Chambers v. Spruce Lighting Co., 81 W.Va. 714,
95 S.E. 192, 194.
Unliquidated damages
Such as are not yet reduced to a certainty in
respect of amount, nothing more being established than the plaintiff's right to recover; or
such as cannot be fixed by a mere mathematical
calculation from ascertained data in the case.
Cox v. McLaughlin, 76 Cal. 60, 18 P. 100, 9 Am.
St.Rep. 164; Cook Pottery Co. v. Parker, 86 W.
Va. 580, 104 S.E. 51, 53; United Cigarette Mach.
Co. v. Brown, 119 Va. 813, 89 S.E. 850, 855, L.R.A.
1917A, 1190; Simons v. Douglas Ex'r, 189 Ky.
644, 225 S.W. 721, 723.
DAMAIOUSE. In old English law. Causing damage or loss, as distinguished from torcenouse,
wrongful. Britt. c. 61.
469
DAME
DAME. In English law. The legal designation
of the wife of a knight or baronet.
DAMN, v. To invoke condemnation, curse, swear,
condemn to eternal punishment, or consign to
perdition. Orf v. State, 147 Miss. 160, 113 So. 202.
DAMNA. Damages, both inclusive and exclusive
of costs.
DAMNATUS. In old English law. Condemned;
prohibited by law; unlawful. Damnatus coitus,
an unlawful sexual connection.
DAMNI INJURLE ACTIO. An action given by
the civil law for the damage done by one who
intentionally injured the slave or beast of another.
Calvin.
DAMNIFICATION. That which causes damage
or loss.
shipwreck, lightning, and the like. Dig. 4, 9, 3, 1;
Story, Bailm. § 465. The civilians included in the
phrase "damnum fatale" all those accidents which
are summed up in the common-law expression,
"Act of God or public enemies;" though, perhaps,
it embraced some which would not now be admitted as occurring from an irresistible force. Thickstun v. Howard, 8 Blackf. Ind. 535.
DAMNUM INFECTUM. In Roman law. Damage
not yet committed, but threatened or impending.
A preventive interdict might be obtained to prevent such damage from happening; and it was
treated as a quasi-delict, because of the imminence of the danger.
DAMNUM REI AMISSAE. In the civil law. A
loss arising from a payment made by a party in
consequence of an error of law. Mackeld. Rom.
Law, § 178.
DAMNIFY. To cause damage or injurious loss
to a person or put him in a position where he
must sustain it. A surety is "damnified" when a
judgment has been obtained against him. McLean
v. Bank, 16 Fed.Cas. 278.
DAMNUM SINE INJURIA. ESSE POTEST. Lofft,
112. There may be damage or injury inflicted
without any act of injustice.
DAMNOSA HiEREDITAS. In the civil law. A
losing inheritance; an inheritance that was a
charge, instead of a benefit. Dig. 50, 16, 119.
The term has also been metaphorically applied
to that species of property of a bankrupt which,
so far from being valuable, would be a charge
to the creditors; for example, a term of years
where the rent would exceed the revenue. 7 East,
342; 3 Camp. 340; 1 Esp.N.P. 234; Provident L.
& Trust Co. v. Fidelity, etc., Co., 203 Pa. 82, 52 A.
34.
DANCEHALL. A place maintained for promiscuous and public dancing, the rules for admission
to which are not based upon personal selection
or invitation. State v. Loomis, 75 Mont. 88, 242
P. 344, 347; People v. Dever, 237 I1l.App. 65, 69.
DAMNUM. Lat.
In the Civil Law
Damage; the loss or diminution of what is a
man's own, either by fraud, carelessness, or accident.
In Pleading and Old English Law
Damage; loss.
DAMNUM ABSQUE INJURIA. Loss, hurt, or
harm without injury in the legal sense, that is,
without such breach of duty as is redressible by
an action. A loss which does not give rise to an
action for damages against the person causing it.
West Virginia Transp. Co. v. Standard Oil Co., 50
W.Va. 611, 40 S.E. 591, 56 L.R.A. 804; J. A. & C.
E. Bennett v. Winston-Salem Southbound Ry. Co.,
170 N.C. 389, 87 S.E. 133, 134, L.R.A.1916D, 1074;
Wisconsin Telephone Co. v. Railroad Commission
of Wisconsin, 162 Wis. 383, 156 N.W. 614, 619, L.
R.A.1916E, 748; Cleveland, C., C. & St. L. Ry. Co.
v. Mumford, 208 Ind. 655, 197 N.E. 826, 834; Alabama Power Co. v. Ickes, App.D.C., 302 U.S. 464,
58 S.Ct. 300, 303, 82 L.Ed. 374.
DAMNUM FATALE. Fatal damage; damage
from fate; loss happening from a cause beyond
human control, (quod ex fato contingit,) or an act
of God, for which bailees are not liable; such as
DAN. Anciently the better sort of men in England had this title; so the Spanish Don. The old
term of honor for men, as we now say Master or
Mister. Wharton.
DANEGELT, DANEGELD. A tribute originally
of 1s. and afterwards of 2s., which came to be imposed upon every hide of land through the realm,
levied by the Anglo-Saxons, for maintaining (it
is supposed) such a number of forces as were
thought sufficient to clear the British seas of
Danish pirates, who greatly annoyed their coasts,
or to buy off the ravages of Danish invaders. It
continued a tax until the time of Stephen, and was
one of the rights of the crown. Wharton; Webster, Dict. The Danegeld was levied as a landtax by the Norman kings; it disappears under
that name after 1163, but in fact continued under
the name of tallage. 3 New English Dict. 26.
DANELAGE. A system of laws, introduced by.
the Danes on their invasion and conquest of England, which was principally maintained in some
of the midland counties, and also on the eastern
coast. 1 Bl.Comm. 65; 4 Bl.Comm. 411; 1 Steph.
Comm. 42.
DANGER. Jeopardy; exposure to loss or injury;
peril. U. S. v. Mays, 1 Idaho, 770; State v. Londe,
345 Mo. 185, 132 S.W.2d 501, 506.
DANGER ZONE. The "danger zone" within contemplation of the humanitarian doctrine depends
upon the facts in the particular case. Brown v.
Alton R. Co., Mo.App., 132 S.W.2d 713, 727; Brown
v. Alton R. Co., 236 Mo.App. 26, 151 S.W.2d 727,
742.
470
DASH
DANGEROUS PLACE. One where there is considerable risk, or danger, or peril, one where accidents or injuries are very apt to occur. Henrie
v. Rocky Mountain Packing Corp., Utah, 196 P.2d
487, 489.
Dangers of Navigation
The same as "dangers of the sea" or "perils of
the sea." See Dangers of the sea, infra.
Dangers of the River
This phrase, as used in bills of lading, means
only the natural accidents incident to river navigation, and does not embrace such as may be
avoided by the exercise of that skill, judgment, or
foresight which are demanded from persons in a
particular occupation. Hill v. Sturgeon, 35 Mo.
213, 86 Am.Dec. 149. It includes dangers arising
from unknown reefs which have suddenly formed
in the channel, and are not discoverable by care
and skill. Hill v. Sturgeon, 35 Mo. 213, 86 Am.
Dec. 149; Hibernia Ins. Co. v. Transp. Co., 120 U.
S. 166, 7 S.Ct. 550, 30 L.Ed. 621; Johnson v. Friar,
4 Yerg. 48, 26 Am.Dec. 215.
DANGEROUS WEAPON. One dangerous to life;
one by the use of which a fatal wound may probably or possibly be given. As the manner of use
enters into the consideration as well as other circumstances, the question is often one of fact for
the jury, but not infrequently one of law for the
court. U. S. v. Reeves, C.C.Tex., 38 F. 404; Parman v. Lemmon, 119 Kan. 323, 244 P. 227, 229, 44
A.L.R. 1500; State v. Penton, 157 La. 68, 102 So.
14, 15; deadly weapon distinguished State v. Walden, 41 N.M. 418, 70 P.2d 149, 150; Crawford v.
State, 174 Md. 175, 197 A. 866, 867.
DANISM. The act of lending money on usury.
Dangers of the Road
This phrase, in a bill of lading, when it refers
to inland transportation, means such dangers as
are immediately caused by roads, as the overturning of carriages in rough and precipitous
places. 7 Exch. 743.
DANO. In Spanish law. Damage; the deterioration, injury, or destruction which a man suffers
with respect to his person or his property by the
fault (culpa) of another. White, New Recop. b.
2, tit. 19, c. 3, § 1.
Dangers of the Sea
DANS ET RETINENS, NIHIL DAT. One who
gives and yet retains does not give effectually.
Tray. Lat. Max. 129. Or, one who gives, yet retains, [possession,) gives nothing.
The expression "dangers of the sea" means
those accidents peculiar to navigation that are of
an extraordinary nature, or arise from irresistible
force or overwhelming power, which cannot be
guarded against by the ordinary exertions of human skill and prudence. The Portsmouth, 9 Wall.
682, 19 L.Ed. 754; Hibernia Ins. Co. v. Transp. Co.,
120 U.S. 166, 7 S.Ct. 550, 30 L.Ed. 621; The Maumee, D.C.N.C., 260 F. 862, 870; equivalent to
"dangers of navigation." Norris Grain Co. v.
Great Lakes Transit Corporation, C.C.A.I11., 70 F.
2d 32, 34.
DANGERIA. In old English law. A money payment made by forest-tenants, that they might
have liberty to plow and sow in time of pannage,
or mast feeding.
DANGEROUS. Attended with risk; perilous;
hazardous; unsafe. Scales v. Lewellyn, 172 N.C.
494, 90 S.E. 521, 522; King v. Smythe, 140 Tenn.
217, 204 S.W. 296, 297, L.R.A.1918F, 293; Bentson
v. Brown, 186 Wis. 629, 203 N.W. 380, 382, 38 A.L.
R. 1417; Davis v. East Contra Costa Irr. Dist.,
Cal.App., 109 P.2d 986, 989.
DANGEROUS MACHINE. A machine is "dangerous" in such sense that the employer is required
to guard it, if, in the ordinary course of human
affairs, danger may be reasonably anticipated
from the use of it without protection. Simon v.
St. Louis Brass Mfg. Co., 298 Mo. 70, 250 S.W. 74,
76.
DANGEROUS PER SE. A thing that may inflict
injury without the immediate application of human aid or instrumentality. Southern Cotton Oil
Co. v. Anderson, 80 Fla. 441, 86 So. 629, 632, 16 A.
L.R. 255.
DAPIFER. A steward either of a king or lord.
Spelman.
DARE. Lat. In the civil law. To transfer property. When this transfer is made in order to discharge a debt, it is datio solvendi animo; when
in order to receive an equivalent, to create an obligation, it is datio contrahendi animo; lastly,
when made donandi animo, from mere liberality,
it is a gift, dono datio.
DARE AD REMANENTIAM. To give away in
fee, or forever.
DARRAIGN. To clear a legal account; to answer an accusation; to settle a controversy.
DARREIN. L. Fr. Last.
DARREIN CONTINUANCE. The last continuance.
DARREIN PRESENTMENT. In old English law.
The last presentment. See Assise of darrein presentment.
DARREIN SEISIN. Last seisin. A plea which
lay in some cases for the tenant in a writ of right.
See 1 Rosc. Real Act. 206; Hunt v. Hunt, 3 Metc.
Mass. 184; Jackson, Real Act. 285. See 1 Roscoe,
Real Act. 206; 2 Prest. Abstr. 345.
DASH. The em dash (-) or the en dash (-) is
often used to indicate the omission of the intermediate terms of a series which are to be supplied
in reading, being thus often equivalent to * * *
inclusive; thus Mark iv, 3-20 (that is, verses 3
471
DATA
to 20, inclusive) ; the years 1880-1888 (that is,
1880 to 1888). Booe v. Sims, 139 Ark. 595, 215
S.W. 659, 660.
tion; after this formality has been complied with,
the parties to the deed cannot by mutual consent
change the date thereof. Arg. Fr. Merc. Law, 555.
DATA. In old practice and conveyancing. The
date of a deed; the time when it was given; that
is, executed. Grounds whereon to proceed; facts
from which to draw a conclusion.
DATE OF INJURY. Means inception date of the
injury and is regarded as coincident with date of
occurrence or happening of accident which caused
such injury. Indemnity Ins. Co. of North America
v. Williams, 129 Tex. 51, 99 S.W.2d 905, 907; Associated Indemnity Corporation v. State Industrial
Accident Commission, 124 Cal.App. 378, 12 P.2d
1075, 1076; Larson v. Industrial Commission, 224
Wis. 294, 271 N.W. 835, 836. Date of the compensable injury and not date of accident or occurrence from which incapacity resulted. Rossi V.
Thomas F. Jackson Co., 120 Conn. 456, 181 A. 539.
DATE. The specification or mention, in a written
instrument, of the time (day, month and year)
when it was made. Also the time so specified.
Interior Linseed Co. v. Becker-Moore Paint Co.,
273 Mo. 433, 202 S.W. 566, 569; In re Carpenter's
Estate, 172 Cal. 268, 156 P. 464, 465, L.R.A.1916E,
498; State v. Beckley, 192 Wis. 367, 212 N.W. 792,
793; Heller v. Sweeney, 101 N.J.Eq. 150, 135 A.
264, 265.
The word is derived from the Latin word "datum" meaning given and is defined as the time
given or specified-in some way ascertained and
fixed. The time when an instrument was made,
acknowledged, delivered or recorded; the clause
or memorandum which specifies that fact; and
the time from which its operation is to be reckoned. In re Irvine's Estate, 114 Mont. 577, 139 P.2d
489, 490, 491, 47 A.L.R. 882.
That part of a deed or writing which expresses
the day of the month and year in which it was
made or given. 2 Bl.Comm. 304; Tomlins.
The primary signification of date is not time in
the abstract, nor time taken absolutely, but time
given or specified; time in some way ascertained
and fixed. When we speak of the date of a deed,
date of issue of a bond or date of a policy, we do
not mean the time when it was actually executed,
but the time of its execution, as given or stated in
the deed itself. The date of an item, or of a
charge in a book-account, is not necessarily the
time when the article charged was, in fact, furnished, but rather the time given or set down in
the account, in connection with such charge. And
so the expression "the date of the last work done,
or materials furnished," in a mechanic's lien law,
may be taken, in the absence of anything in the
act indicating a different intention, to mean the
time when such work was done or materials furnished, as specified in the plaintiff's written claim.
Bement v. Manufacturing Co., 32 N.J.Law, 513;
Mutual Life Ins. Co. of New York v. Hurni Packing Co., 263 U.S. 167, 44 S.Ct. 90, 68 L.Ed. 235, 31
A.L.R. 102; Mutual Life Ins. Co. of New York v.
Hurni Packing Co., C.C.A.Iowa, 280 F. 18, 20;
Turner v. Roseberry Irr. Dist., 33 Idaho, 746, 198
P. 465, 467.
The precise meaning of date, however, depends upon
context, since there are numerous instances when it means
actual as distinguished from conventional time. Buckhannon & N. R. Co. v. Great Scott Coal & Coke Co., 75 W.
Va. 423, 83 S.E. 1031, 1033; London Guarantee & Accident
Co. v. Empire Plow Co., 115 Ohio St. 684, 155 N.E. 382, 384;
National Liberty Ins. Co. v. Norman, C.C.A.N.C., 11 F.2d
59, 61; Cantrell v. Prudential Ins. Co. of America, 189
Wash. 99, 63 P.2d 509, 510.
In French law. A deed is
said to have a date certaine ( fixed date) when it
has been subjected to the formality of registra-
DATE CERTAINE.
"DATE OF ISSUE."
When applied to notes, bonds,
etc., of series, usually means an arbitrary date
fixed as beginning of term for which they run,
without reference to precise time when convenience or state of market may permit their sale or
delivery, date which bonds and stocks bear, and
not date when they were actually issued in sense
of being signed and delivered and put into circulation. Whetstone v. City of Stuttgart, 193 Ark.
88, 97 S.W.2d 641, 643.
The words in life policy were held not to mean
the date of actual execution or the delivery date,
but the date set forth in the policy itself. Potts
v. Metropolitan Life Ins. Co., 133 Pa.Super. 397,
2 A.2d 870, 872.
DATIO. In the civil law. A giving, or act of giving. Datio in solutum; a giving in payment; a
species of accord and satisfaction. Called, in_
modern law, "dation."
DATION. In the civil law. A gift; a giving of
something. It is not exactly synonymous with
"donation," for the latter implies generosity or
liberality in making a gift, while dation may mean
the giving of something to which the recipient is
already entitled.
DATION EN PAIEMENT.
In French law. A
giving by the debtor and receipt by the creditor of
something in payment of a debt, instead of a sum
of money. It is somewhat like the accord and
satisfaction of the common law. 16 Toullier, no.
45; Poth. Vente, no. 601.
DATIVE. A
word derived from the Roman law,
signifying "appointed by public authority." Thus,
in Scotland, an executor-dative is an executor appointed by a court; corresponding or equivalent
to an English administrator or "administrator
with the will annexed." Mozley & Whitley. In old
English law. In one's gift; that may be given and
disposed of at will and pleasure.
DATUM.
A first principle; a thing given;
DATUR DIGNIORI.
It
is
a date.
given to the more
worthy. 2 Vent. 268.
DAUGHTER.
An immediate female descendant.
People v. Kaiser, 119 Cal. 456, 51 P. 702. May include the issue of a daughter. Buchanan v. Lloyd,
472
DAY
Regardless of the duration of the "day," the law often
disregards fractions, where priority is not concerned.
Franklin v. State, 9 Okl.Cr. 178, 131 P. 183, 184; Harris
County v. Hammond, Tex.Civ.App., 203 S.W. 451, 453;
State ex rel. Jones v. Board of Deputy State Supervisors
& Inspectors of Elections of Montgomery County, 93 Ohio
St. 14, 112 N.E. 136, 137; First National Bank v. Burkhardt, 100 U.S. 686, 25 L. Ed. 766.
88 Md. 462, 41 A. 1075; Jamison v. Hay, 46 Mo.
546. May designate a natural or illegitimate female child, State v. Laurence, 95 N.C. 659, not an
adopted daughter, a stepdaughter, or daughter-inlaw. State v. Youst, 74 Ohio App. 381, 59 N.E.2d
167, 168.
The female offspring of a man or woman. State
v. Lee, 196 Miss. 311, 17 So.2d 277, 278, 151 A.L.R.
1143.
Astronomical Day
The period of twenty-four hours beginning and
ending at noon.
DAUGHTER-IN-LAW. The wife of one's son.
DAUPHIN. In French law. The title of the eldest sons of the kings of France. Disused since
1830.
Artificial Day
The time between the rising and setting of the
sun; that is, day or daytime as distinguished
from night.
Calendar Days
See Calendar.
DAY. 1. A period of time consisting of twentyfour hours and including the solar day and the
night. Co. Litt. 135a; Fox v. Abel, 2 Conn. 541.
2. The period of time during which the earth
makes one revolution on its axis. Long v. City of
Wichita Falls, 142 Tex. 202, 176 S.W.2d 936, 938,
939.
Civil Day
The solar day, measured by the diurnal revolution of the earth, and denoting the interval of
time which elapses between the successive transits of the sun over the same hour circle, so that
the "civil day" commences and ends at midnight.
Pedersen v. Eugster, D.C.La., 14 F. 422.
3. The space of time which elapses between
two successive midnights. 2 Bl.Comm. 141; State
v. Michel, 52 La.Ann. 936, 27 So. 565, 49 L.R.A. 218;
Stevenson v. Donnelly, 221 Mass. 161, 108 N.E.
926, 927, Ann.Cas.1917E, 932; Long v. City of Wichita Falls, 142 Tex. 202, 176 S.W.2d 936, 938, 939.
Clear Days
4. The whole or any part of period of 24 hours
from midnight to midnight. Talbott v. Caudill,
248 Ky. 146, 58 S.W.2d 385.
5. That portion of time during which the sun
is above the horizon, and, in addition, that part of
the morning and evening during which there is
sufficient light for the features of a man to be
reasonably discerned. 3 Inst. 63; Nicholls v.
State, 68 Wis. 416, 32 N.W. 543, 60 Am.Rep. 870;
State v. McKnight, 111 N.C. 690, 16 S.E. 319; U.
S. v. Martin, D.C.Mass., 33 F.2d 639, 640.
6. An artificial period of time, computed from
one fixed point to another twenty-four hours later,
without any reference to the prevalence of light
or darkness. Fuller v. Schroeder, 20 Neb. 631, 31
N .W. 109.
7. The period of time, within the limits of a
natural day, set apart either by law or by common usage for the transaction of particular business or the performance of labor; as in banking,
in laws regulating the hours of labor, in contracts for so many "days' work," and the like, the
word "day" may signify six, eight, ten, or any
number of hours. Fay v. Brown, 96 Wis. 434, 71
N.W. 895; McCulsky v. Klosterman, 20 Or. 108, 25
P. 366, 10 L.R.A. 785.
8. In practice and pleading. A particular time
assigned or given for the appearance of parties
in court, the return of writs, etc.
When considered in computing time, it is an indivisible
point of time, Williams v. Williams, 325 Mo. 963, 30 S.W.2d
69, 71; Fiedler v. Eckfeldt, 335 Ill. 11, 166 N.E. 504, 507;
Greulich v. Monnin, 142 Ohio St. 113, 50 N.E.2d 310, 312;
but that it is not divisible is a mere fiction, only observed
for the purposes of justice and never adhered to when it
would work mischief. Greulich v. Monnin, Ohio App., 45
N.E.2d 212, 217. Durstin v. Dodge, 138 Me. 12, 20 A.2d 671,
672.
See Clear.
Common Day
In old English practice. An ordinary day in
court. Cowell; Termes de la Ley.
Judicial Day
A day on which the court is actually in session.
Heffner v. Heffner, 48 La.Ann. 1088, 20 So. 281.
Juridical Day
day proper for the transaction of business in
court; one on which the court may lawfully sit,
excluding Sundays and some holidays.
A
Law Day
The day prescribed in a bond, mortgage, or defeasible deed for payment of the debt secured
thereby, or, in default of payment, the forfeiture
of the property mortgaged. But this does not
now occur until foreclosure. Ward v. Lord, 100
Ga. 407, 28 S.E. 446; Kortright v. Cady, 21 N.Y.
345, 78 Am.Rep. 145.
Legal Day
A juridical day. See supra. And see Heffner
v. Heffner, 48 La.Ann. 1088, 20 So. 281.
Natural Day
Properly the period of twenty-four hours from
midnight to midnight. Co.Litt. 135; Fox v. Abel,
2 Conn. 541; People v. Hatch, 33 Ill. 137. Though
sometimes taken to mean the daytime or time
between sunrise and sunset. In re Ten Hour Law,
24 R.I. 603, 54 A. 602, 61 L.R.A. 612.
473
DAY
Non-judicial Day
One on which process cannot ordinarily issue
or be served or returned and on which the courts
do not ordinarily sit. Whitney v. Blackburn, 17
Or. 564, 21 P. 874, 11 Am.St.Rep. 857. More properly "non-juridical day."
Solar Day
A term sometimes used as meaning that portion of the day when the sun is above the horizon,
but properly it is the time between two complete
(apparent) revolutions of the sun, or between
two consecutive positions of the sun over any
given terrestrial meridian, and hence, according
to the usual method of reckoning, from noon to
noon at any given place.
DAY-BOOK. A tradesman's account book; a
book in which all the occurrences of the day are
set down. It is usually a book of original entries.
DAY CERTAIN. A fixed or appointed day; a
specified particular day; a day in term. Regina
v. Conyers, 8 Q.B. 991.
DAY FIXED FOR TRIAL. Has been held to
mean return day of summons or any later day to
which trial is adjourned and on which it is actually held. Okin v. Shafman, N.J,, 11 N.J.Misc.
462, 166 A. 730.
DAY IN COURT. The time appointed for one
whose rights are called judicially in question, or
liable to be affected by judicial action, to appear
in court and be heard in his own behalf. This
phrase, as generally used, means not so much
the time appointed for a hearing as the opportunity to present one's claims or rights in a proper
forensic hearing before a competent tribunal. See
Ferry v. Car Wheel Co., 71 Vt. 457, 45 A. 1035, 76
Am.St.Rep. 782.
A litigant has his "day in court" when he has
been duly cited to appear and has been afforded
an opportunity to appear and to be heard. Cohen
v. City of Houston, Tex.Civ.App., 185 S.W.2d 450,
452; In re Hampton's Estate, 55 Cal.App.2d 543,
131 P.2d 565, 573; State ex rel. Allstate Ins. Co. v.
Bowen, 130 Ohio St. 347, 199 N.E. 355, 363.
DAY OF ATONEMENT. See Yom Kippur.
DAYERIA. A dairy. Cowell.
DAYLIGHT. That portion of time before sunrise, and after sunset, which is accounted part of
the day, (as distinguished from night,) in defining
the offense of burglary. 4 Bl.Comm. 224; Cro.
Jac. 106.
DAY-RULE, or DAY-WRIT. In English law. A
permission granted to a prisoner to go out of
prison, for the purpose of transacting his business, as to hear a case in which he is concerned
at the assizes, etc. Abolished by 5 & 6 Vict. c. 22,
§ 12.
DAYS IN BANK. (L. Lat. dies in banco.) In
practice. Certain stated days in term appointed
for the appearance of parties, the return of process, etc., originally peculiar to the court of common pleas, or bench, (bank,) as it was anciently
called. 3 Bl.Comm. 277.
By the common law, the defendant is allowed
three full days in which to make his appearance
in court, exclusive of the day of appearance or
return-day named in the writ; 3 Bl.Comm. 278.
Upon his appearance, time is usually granted him
for pleading; and this is called giving him day,
or, as it is more familiarly expressed, a continuance. 3 Bl.Comm. 316. When the suit is ended
by discontinuance or by judgment for the defendant, he is discharged from further attendance,
and is said to go thereof sine die, without day.
See Continuance.
DAYS OF GRACE. A number of days allowed,
as a matter of favor or grace, to a person who
has to perform some act, or make some payment,
after the time originally limited for the purpose
has elapsed. In old practice. Three days allowed
to persons summoned in the English courts, beyond the day named in the writ, to make their
appearance; the last day being called the "quarto
die post." 3 Bl.Comm. 278. In mercantile law.
A certain number of days (generally three) allowed to the maker or acceptor of a bill, draft, or
note, in which to make payment, after the expiration of the time expressed in the paper itself.
Originally these days were granted only as a
matter of grace or favor, but the allowance of
them became an established custom of merchants,
and was sanctioned by the courts, (and in some
cases prescribed by statute,) so that they are now
demandable as of right. Bell v. Bank, 115 U.S.
373, 6 S.Ct. 105, 29 L.Ed. 409; Renner v. Bank,
9 Wheat. 581, 6 L.Ed. 166.
DAYSMAN.
An arbitrator, umpire, or elected
judge. Cowell.
DAYTIME. The time during which there is the
light of day, as distinguished from night or nighttime. That portion of the twenty-four hours during which a man's person and countenance are
distinguishable. Trull v. Wilson, 9 Mass. 154;
Rex v. Tandy, 1 Car. & P. 297; Linnen v. Banfield,
114 Mich. 93, 72 N.W. 1; U. S. v. Syrek, D.C.Mass.,
290 F. 820, 821; Deese v. City of Lodi, 21 Cal.App.
2d 631, 69 P.2d 1005, 1008.
DAYWERE. In old English law. A term applied
to land, and signifying as much arable ground as
could be plowed up in one day's work. Cowell.
DE. A Latin preposition, signifying of; by;
from; out of; affecting; concerning; respecting.
DE ACQUIRENDO RERUM DOMINIO. Of
(about) acquiring the ownership of things. Dig.
41, 1; Bract. lib. 2, fol. 8b.
DE ADMENSURATIONE. Of admeasurement.
Thus, de admensuratione dotis was a writ for the
474
DE AVERUS
DE ANNUO REDITU. For a yearly rent. A.
writ to recover an annuity, no matter how payable, in goods or money. 2 Reeve, Eng.Law, 258.
admeasurement of dower, and de admensuratione
pasturce was a writ for the admeasurement of
pasture.
DE APOSTATA CAPIENDO, Breve. Writ for
taking an apostate. A writ which anciently lay
against one who, having entered and professed
some order of religion, left it and wandered up
and down the country, contrary to the rules of
his order, commanding the sheriff to apprehend
him and deliver him again to his abbot or prior.
Reg.Orig. 71b, 267; Fitzh.Nat.Brev. 233, 234.
DE ADVISAMENTO CONSILII NOSTRI. L. Lat.
With or by the advice of our council. A phrase
used in the old writs of summons to parliament.
Crabb, Eng.Law, 240.
DE ZEQUITATE. In equity. De jure stricto, nihil
possum vendicare, de cequitate tamen, nullo modo
hoc obtinet; in strict law. I can claim nothing,
but in equity this by no means obtains. Fleta, lib.
3, c. 2, § 10.
DE ARBITRATIONE FACTA. (Lat. Of arbitration had.) A writ formerly used when an action
was brought for a cause which had been settled
by arbitration. Wats.Arb. 256.
DE IESTIMATO. In Roman law. One of the innominate contracts, and, in effect, a sale of land
or goods at a price fixed, (cestimato,) and guarantied by some third party, who undertook to find a
purchaser.
DE ARRESTANDIS BONIS NE DISSIPENTUR.
And old writ which lay to seize goods in the hands
of a party during the pendency of a suit, to prevent their being made away with. Reg.Orig. 126b.
DE ZETATE PROBANDA. For proving age. A
writ which formerly lay to summon a jury in
order to determine the age of the heir of a tenant
in capite who claimed his estate as being of full
age. Fitzh.Nat.Brev. 257; Reg.Orig. 294.
DE ARRESTANDO IPSUM QUI PECUNIAM RECEPIT. A writ which lay for the arrest of one
who had taken the king's money to serve in the
war, and hid himself to escape going. Reg.Orig.
24b.
DE ALEATORIBUS. About gamesters. The
name of a title in the Pandects. Dig. 11, 5.
DE ARTE ET PARTE. Of art and part. A
phrase in old Scotch law. See Art and Part.
DE ALLOCATIONE FACIENDA, Breve. Writ
for making an allowance. An old writ directed
to the lord treasurer and barons of the exchequer,
for allowing certain officers (as collectors of customs) in their accounts certain payments made by
them. Reg.Orig. 192.
DE ASPORTATIS RELIGIOSORUM. Concerning
the property of religious persons carried away.
The title of the statute 35 Edward I. passed to
check the abuses of clerical possessions, one of
which was the waste they suffered by being drained into foreign countries. 2 Reeve, Eng.Law, 157;
2 Inst. 580.
DE ALTO ET BASSO. Of high and low. A
phrase anciently used to denote the absolute submission of all differences to arbitration. Cowell.
DE AMBITU. Lat. Concerning bribery. A.
phrase descriptive of the subject-matter of several of the Roman laws; as the Lex Aufidia, the
Lex Pompeia, the Lex Tullia, and others. See
Ambitus.
DE AMPLIORI GRATIA. Of more abundant or
especial grace. Townsh.Pl. 18.
DE ANNO BISSEXTILI. Of the bissextile or
leap year. The title of a statute passed in the
twenty-first year of Henry III., which in fact,
however, is nothing more than a sort of writ or
direction to the justices of the bench, instructing
them how the extraordinary day in the leap year
was to be reckoned in cases where persons had
a day to appear at the distance of a year, as on
the essoin de malo lecti, and the like. It was
thereby directed that the additional day should,
together with that which went before, be reckoned
only as one, and so, of course, within the preceding year. 1 Reeve, Eng.Law, 266.
DE ANNUA PENSIONE, Breve. Writ of annual.
pension. An ancient writ by which the king, having a yearly pension due him out of an abbey or
priory for any of his chaplains, demanded the
same of the abbot or prior, for the person named
in the writ. Reg.Orig. 265b, 307; Fitzh.Nat.Brev.
231 G.
DE ASSISA PROROGANDA. (Lat. For proroguing assise.) A writ to put off an assise, issuing
to the justices, where one of the parties is engaged in the service of the king.
DE ATTORNATO RECIPIENDO. A writ which
lay to the judges of a court, requiring them to
receive and admit an attorney for a party. Reg.
Orig. 172; Fitzh.Nat.Brev. 156.
DE AUDIENDO ET TERMINANDO. For hearing
and determining; to hear and determine. The
name of a writ, or rather commission granted to
certain justices to hear and determine cases of
heinous misdemeanor, trespass, riotous breach of
the peace, etc. Reg.Orig. 123, et seq.; Fitzh.Nat.
Brev. 110 B. See Oyer and Terminer.
DE AVERIIS CAPTIS IN WITIIERNAMIUM.
Writ for taking cattle in withernam. A writ
which lay where the sheriff returned to a pluries
writ of replevin that the cattle or goods, etc.,
were eloined, etc.; by which he was commanded
to take the cattle of the defendant in withernam,
(or reprisal,) and detain them until he could
replevy the other cattle. Reg.Orig. 82; Fitzh.
Nat.Brev. 73, E. F. See Withernam.
DE AVERIIS REPLEGIANDIS. A writ to replevy beasts. 3 Bl.Comm. 149.
475
DE AVERIIS
DE AVERIIS RETORNANDIS. For returning
the cattle. A term applied to pledges given in
the old action of replevin. 2 Reeve, Eng.Law, 177.
"administration de bonis non;" that is, of the
goods not already administered. McNair v. Howle, 123 S.C. 252, 116 S.E. 279, 285.
DE BANCO. Of the bench. A term formerly applied in England to the justices of the court of
common pleas, or "bench," as it was originally
styled.
DE BONIS NON AMOVENDIS. Writ for not removing goods. A writ anciently directed to the
sheriffs of London, commanding them, in cases
where a writ of error was brought by a defendant against whom a judgment was recovered, to
see that his goods and chattels were safely kept
without being removed, while the error remained
undetermined, so that execution might be had of
them, etc. Reg.Orig. 131b; Termes de la Ley.
DE BENE ESSE. Conditionally; provisionally;
in anticipation of future need. A phrase applied
to proceedings which are taken ex parte or provisionally, and are allowed to stand as well done
for the present, but which may be subject to
future exception or challenge, and must then
stand or fall according to their intrinsic merit
and regularity.
Thus, "in certain cases, the courts will allow
evidence to be taken out of the regular course,
in order to prevent the evidence being lost by
the death or the absence of the witness. This is
called 'taking evidence de bene esse,' and is looked
upon as a temporary and conditional examination, to be used only in case the witness cannot
afterwards be examined in the suit in the regular
way." Hunt, Eq. 75; Haynes, Eq. 183; Mitt. Eq.
Pl. 52, 149; Willis v. Bank of Hardinsburg & Trust
Co., 160 Ky. 808, 170 S.W. 188, 189.
Examination de bene esse
A provisional examination of a witness ; an examination
of a witness whose testimony is important and might otherwise be lost, held out of court and before the trial, with
the proviso that the deposition so taken may be used on the
trial in case the witness is unable to attend in person at
that time or cannot be produced.
DE BIEN ET DE MAL. L. Fr. For good and
evil. A phrase by which a party accused of a
crime anciently put himself upon a jury, indicating his entire submission to their verdict; also
the name of the special writ of jail delivery formerly in use in England, which issued for each
particular prisoner, of course. It was superseded
by the general commission of jail delivery.
DE BIENS LE MORT. L. Fr. Of the goods of
the deceased. Dyer, 32.
DE BIGAMIS. Concerning men twice married.
The title of the statute 4 Edw. I. St. 3; so called
from the initial words of the fifth chapter. 2
Inst. 272; 2 Reeve, Eng.Law, 142.
DE BONE MEMORIE. L. Fr. Of good memory;
of sound mind. 2 Inst. 510.
DE BONIS PROPRIIS. Of his own goods. The
technical name of a judgment against an administrator or executor to be satisfied from his
own property, and not from the estate of the deceased, as in cases where he has been guilty of a
devastavit or of a false plea of plene adminis-
travit.
DE BONIS TESTATORIS, or INTESTATI. Of
the goods of the testator, or intestate. A term
applied to a judgment awarding execution against
the property of a testator or intestate, as distinguished from the individual property of his executor or administrator. 2 Archb.Pr.K.B. 148, 149.
DE BONIS TESTATORIS AC SL (Lat. From
the goods of the testator, if he has any, and, if not,
from those of the executor.) A judgment rendered where an executor falsely pleads any matter as a release, or, generally, in any case where
he is to be charged in case his testator's estate
is insufficient. 1 Williams' Saund. 336b; Bac.
Abr. "Executor," B, 3; 2 Archb.Pr.K.B. 148.
DE BONO ET MALO. See De Bien et De Mal.
DE BONO GESTU. For good behavior; for good
abearance.
DE CZETERO. Henceforth.
DE CALCETO REPARANDO. Writ for repairing
a causeway. An old writ by which the sheriff
was commanded to distrain the inhabitants of a
place to repair and maintain a causeway, etc.
Reg. Orig. 154.
DE CAPITALIBUS DOMINIS FEODI. Of the
chief lords of the fee.
DE CAPITE MINUTIS. Of those who have lost
their status, or civil condition. Dig. 4, 5. The
name of a title in the Pandects. See Capitis Deminutio.
DE BONIS ASPORTATIS. For goods taken
away; for taking away goods. The action of
trespass for taking personal property is technically called "trespass de bonis asportatis." 1
Tidd, Pr. 5.
DE CARTIS REDDENDIS. (For restoring charters.) A writ to secure the delivery of charters
or deeds; a writ of detinue. Reg. Orig. 159b_
DE BONIS NON. An abbreviation of De bonis
non administratis, (q. v.). 1 Strange, 34.
DE CATALLIS REDDENDIS. (For restoring
chattels.) A writ to secure the return specifically
of chattels detained from the owner. Cowell.
DE BONIS NON ADMINISTRATIS. Of the
goods not administered. When an administrator
is appointed to succeed another, who has left the
estate partially unsettled, he is said to be granted
DE CAUTIONE ADMITTENDA. Writ to take
caution or security. A writ which anciently lay
against a bishop who held an excommunicated
person in prison for his contempt, notwithstand-
476
DE CORPORE
ing he had offered sufficient security (idoneam
cautionem) to obey the commands of the church;
commanding him to take such security and release the prisoner. Reg. Orig. 66; Fitzh. Nat.
Brev. 63, C.
DE CERTIFICANDO. A writ requiring a thing to
be certified. A kind of certiorari. Reg. Orig. 151,
152.
DE CERTIORANDO. A writ for certifying. A.
writ directed to the sheriff, requiring him to certify to a particular fact. Reg. Orig. 24.
DE CHAMPERTIA. Writ of champerty. A writ
directed to the justices of the bench, commanding the enforcement of the statute of champertors.
Reg. Orig. 183; Fitzh. Nat. Brev. 172.
DE COMON DROIT. L. Fr. Of common right;
that is, by the common law. Co. Litt. 142a.
DE COMPUTO. Writ of account. A writ commanding a defendant to render a reasonable account to the plaintiff, or show cause to the contrary. Reg. Orig. 135-138; Fitzh. Nat. Brev. 117,
E. The foundation of the modern action of account.
DE CONCILIO CURVE. By the advice (or direction) of the court.
DE CONFLICTU LEGUM. Concerning the conflict of laws. The title of several works written
on that subject. 2 Kent, Comm. 455.
DE CHAR ET DE SANK. L. Fr. Of flesh and
blood. A ffaire rechat de char et de sank. Words
used in claiming a person to be a villein, in the
time of Edward II. Y. B. P. 1 Edw. II. p. 4.
DE CONJUNCTIM FEOFFATIS. Concerning persons jointly enfeoffed, or seised. The title of the
statute 34 Edw. I., which was passed to prevent
the delay occasioned by tenants in novel disseisin,
and other writs, pleading that some one else was
seised jointly with them. 2 Reeve, Eng. Law, 243.
DE CHIMINO. A writ for the enforcement of a
right of way. Reg. Orig. 155.
DE CONSANGUINEO, and DE CONSANGUINITATE. Writs of cosinage, (q. v.).
DE CIBARIIS UTENDIS. Of victuals to be used.
The title of a sumptuary statute passed 10 Edw.
III. St. 3, to restrain the expense of entertainments. Barring. Ob. St. 240.
DE CONSILIO. In old criminal law. Of counsel;
concerning counsel or advice to commit a crime.
Fleta, lib. 1, c. 31, § 8.
DE CLAMEA ADMITTENDA IN ITINERE PER
ATTORNATUM. See Clamea Admittenda, etc.
DE CLARO DIE. By daylight. Fleta, lib. 2, c. 76,
§ 8.
DE CLAUSO FRACTO. Of close broken; of
breach of close. See Clausum Fregit.
DE CLERICO ADMITTENDO. See Admittendo
Clerico.
DE CLERICO CAPTO PER STATUTUM MERCATORIUM DELIBERANDO. Writ for delivering a clerk arrested on a statute merchant. A
writ for the delivery of a clerk out of prison, who
had been taken and imprisoned upon the breach
of a statute merchant. Reg. Orig. 147b.
DE CLERICO CONVICTO DELIBERANDO. See
Clerico Convicto, etc.
DE CLERICO INFRA SACROS ORDINES CONSTITUTO NON ELIGENDO IN OFFICIUM. See
Clerico Infra Sacros, etc.
DE CLERO. Concerning the clergy. The title of
the statute 25 Edw. III. St. 3; containing a variety of provisions on the subject of presentations,
indictments of spiritual persons, and the like. 2
Reeve, Eng. Law, 378.
DE COMBUSTIONE DOMORUM. Of house burning. One of the kinds of appeal formerly in use
in England. Bract. fol. 14619; 2 Reeve, Eng. Law,
38.
DE COMMUNI DIVIDUNDO. For dividing a
thing held in common. The name of an action
given by the civil law. Mackeld. Rom. Law, § 499.
DE CONSILIO CURVE. By the advice or direction of the court. Bract. fol. 345b.
DE CONTINUANDO ASSISAM. Writ to continue
an assise. Reg. Orig. 217b.
DE CONTUMACE CAPIENDO. Writ for taking
a contumacious person. A writ which issues out
of the English court of chancery, in cases where
a person has been pronounced by an ecclesiastical
court to be contumacious, and in contempt. Shelf.
Mar. & Div. 494-496, and notes. It is a commitment for contempt. Id.
DE COPIA LIBELLI DELIBERANDA. Writ for
delivering the copy of a libel. An ancient writ
directed to the judge of a spiritual court, commanding him to deliver to a defendant a copy of
the libel filed against him in such court. Reg.
Orig. 58. The writ in the register is directed to
the Dean of the Arches, and his commissary. Id.
DE CORONATORE ELIGENDO. Writ for electing a coroner. A writ issued to the sheriff in England, commanding him to proceed to the election
of a coroner, which is done in full county court,
the freeholders being the electors. Sewell, Sheriffs, 372.
DE CORONATORE EXONERANDO. Writ for
discharging or removing a coroner. A writ by
which a coroner in England may be removed
from office for some cause therein assigned.
Fitzh. Nat. Brev. 163, 164; 1 Bl.Comm. 348.
DE CORPORE COMITATUS. From the body of
the county at large, as distinguished from a par•
ticular neighborhood, (de vicineto.) 3 Bl.Comm.
360. Used with reference to the composition of
a jury. State v. Kemp, 34 Minn. 61, 24 N.W. 349.
477
DE CORRODIO
DE CORRODIO HABENDO. Writ for having a
corody. A writ to exact a corody from a religious
house. Reg. Orig. 264, Fitzh. Nat. Brev. 230. See
Corody.
DE CUJUS. Lat. From whom. A term used to
designate the person by, through, from, or under
whom another claims. Brant v. New Orleans, 41
La.Ann. 1098, 6 So. 793.
DE CURIA CLAUDENDA. An obsolete writ, to
require a defendant to fence in his court or land
about his house, where it was left open to the
injury of his neighbor's freehold. 1 Crabb, Real
Prop. 314; Rust v. Low, 6 Mass. 90.
DE CURSU. Of course. The usual, necessary,
and formal proceedings in an action are said to
be de cursu; as distinguished from summary proceedings, or such as are incidental and may be
taken on summons or motion. Writs de cursu are
such as are issued of course, as distinguished
from prerogative writs.
DE CUSTODE ADMITTENDO. Writ for admitting a guardian. Reg. Orig. 93b, 198.
DE CUSTODE AMOVENDO. Writ for removing
a guardian. Reg. Orig. 198.
DE CUSTODIA TERRIE ET HZEREDIS, Breve.
L. Lat. Writ of ward, or writ of right of ward.
A writ which lay for a guardian in knight's service or in socage, to recover the possession and
custody of the infant, or the wardship of the land
and heir. Reg. Orig. 161b; Fitzh. Nat. Brev. 139,
B; 3 Bl.Comm. 141.
DE DEBITO. A writ of debt. Reg. Orig. 139.
DE DEBITORE IN PARTES SECANDO. In Roman law. "Of cutting a debtor in pieces." This
was the name of a law contained in the Twelve
Tables, the meaning of which has occasioned
much controversy. Some commentators have concluded that it was literally the privilege of the
creditors of an insolvent debtor (all other means
failing) to cut his body into pieces and distribute
it among them. Others contend that the language
of this law must be taken figuratively, denoting a
cutting up and apportionment of the debtor's es-
tate.
The latter view has been adopted by Montesquieu, Bynkershoek, Heineccius, and Taylor. (Esprit des Lois, liv. 29,
c. 2; Bynk.Obs.Jur.Rom. 1. 1, c. 1; Heinecc.Ant.Rom. lib.
3, tit. 30, § 4; Tayl.Comm. in Leg.Decemv.) The literal
meaning, on the other hand, is advocated by Aulus Gellius
and other writers of antiquity, and receives support from
an expression (semoto omni cruciatu) in the Roman code
itself. (Aul.Gel.Noctes Attica, lib. 20, c. 1; Code, 7, 7, 8.)
This is also the opinion of Gibbon, Gravina, Pothier, Hugo,
and Niebuhr. (3 Gib.Rom.Emp., Am.Ed., p. 183; Gra y . de
Tab. § 72; Poth.Introd.Pand.;
Jur.Nat.Gent. et XII.
p. 233, § 149; 2 Nieb.
Hugo, Hist. du Droit Rom. tom.
Hist.Rom. p. 597; 1 Kent, Comm. 523, note.) Burrill.
DE DECEPTIONE. A writ of deceit which lay
against one who acted in the name of another
whereby the latter was damnified and deceived.
Reg. Orig. 112.
DE DEONERANDA PRO RATA PORTIONIS. A
writ that lay where one was distrained for 'rent
•
that ought to be paid by others proportionably
with him. Fitzh. Nat. Brev. 234; Termes de la
Ley.
DE DIE IN DIEM. From day to day. Bract. fol.
205b.
DE DIVERSIS REGULIS JURIS ANTIQUI. Of
divers rules of the ancient law. A celebrated title
of the Digests, and the last in that collection. It
consists of two hundred and eleven rules or maxims. Dig. 50, 17.
DE BOLO MALO. Of or founded upon fraud.
Dig. 4, 3. See Actio de Dolo Malo.
DE DOMO REPARANDA. A writ which lay for
one tenant in common to compel his cotenant to
contribute towards the repair of the common
property.
DE DONIS. Concerning gifts, (or more fully, de
donis conditionalibus, concerning conditional
gifts.) The name of a celebrated English statute,
passed in the thirteenth year of Edw. I., and constituting the first chapter of the statute of Westm.
2, by virtue of which estates in fee-simple conditional (formerly known as "dona conditionalia")
were converted into estates in fee-tail and rendered inalienable, thereby strengthening the power of the nobles. See 2 Bl.Comm. 112.
DE DOTE ASSIGNANDA. Writ for assigning
dower. A writ which lay for the widow of a tenant in capite, commanding the king's escheater to
cause her dower to be assigned to her. Reg. Orig.
297; Fitzh. Nat. Brev. 263, C.
DE DOTE UNDE NIHIL HABET. A writ of dower which lay for a widow where no part of her
dower had been assigned to her. It is not much
used; but a form closely resembling it is sometimes used in the United States. 4 Kent, Comm.
63; Stearns, Real Act. 302; 1 Washb. Real Prop.
230.
DE EJECTIONE CUSTODI)E. A writ which lay
for a guardian who had been forcibly ejected from
his wardship. Reg. Orig. 162.
DE EJECTIONE FIRM2E. A writ which lay at
the suit of the tenant for years against the lessor,
reversioner, remainderman, or stranger who had
himself deprived the tenant of the occupation of
the land during his term. 3 Bl.Comm. 199. By
a gradual extension of the scope of this form of
action its object was made to include not only
damages for the unlawful detainer, but also the
possession for the remainder of the term, and
eventually the possession of land generally. And,
as it turned on the right of possession, this involved a determination of the right of property,
or the title, and thus arose the modern action of
ejectment.
DE ESC2ETA. Writ of escheat. A writ which
a lord had, where his tenant died without heir, to
recover the land. Reg. Orig. 164b; Fitzh. Nat.
Brev. 143, 144, E.
478
DE FAIRE
DE ESCAMBIO MONET/E. A writ of exchange
of money. An ancient writ to authorize a merchant to make a bill of exchange, (literas cambitorias facere.) Reg. Orig. 194.
DE EXECUTIONE JUDICII. A
DE ESSE IN PEREGRINATIONE.
Of being on a
journey. A species of essoin. 1 Reeve, Eng. Law,
119.
DE EXEMPLIFICATIONE.
DE ESSENDO QUIETUM DE TOLONIO. A
DE EXONERATIONE SECTIE.
writ directed to a
sheriff or bailiff, commanding him to do execution
upon a judgment. Reg. Orig. 18; Fitzh. Nat.
Brev. 20.
Writ of exemplification. A writ granted for the exemplification of an
original. Reg. Orig. 290b.
writ
which lay for those who were by privilege free
from the payment of toll, on their being molested
therein. Fitzh. Nat. Brev. 226; Reg. Orig. 258b.
Writ for exoneration of suit. A writ that lay for the king's
ward to be discharged of all suit to the county
court, hundred, leet, or court-baron, during the
time of his wardship. Fitzh. Nat. Brev. 158; New
Nat. Brev. 352.
DE ESSONIO DE MALO LECTI. A
writ which
issued upon an essoin of malum lecti being cast,
to examine whether the party was in fact sick or
not. Reg. Orig. 8b.
DE EXPENSIS CIVIUM ET BURGENSIUM. An
obsolete writ addressed to the sheriff to levy the
expenses of every citizen and burgess of parliament. 4 Inst. 46.
DE ESTOVERIIS HABENDIS.
Writ for having
estovers. A writ which lay for a wife divorced
a mensa et thoro, to recover her alimony or estovers. 1 Bl.Comm. 441; 1 Lev. 6.
DE EXpENSIS MILITUM LEVANDIS. Writ for
DE ESTREPAMENTO. A
writ which lay to prevent or stay waste by a tenant, during the pendency of a suit against him to recover the lands.
Reg. Orig. 76b. Fitzh. Nat. Brev. 60.
DE EU ET TRENE.
L. Fr. Of water and whip
of three cords. A term applied to a neife, that
is, a bond woman or female villein, as employed
in servile work, and subject to corporal punishment. Co. Litt. 25b.
DE EVE ET DE TREVE. A
law French phrase,
equivalent to the Latin de avo et de tritavo, descriptive of the ancestral rights of lords in their
villeins. Literally, "from grandfather and from
great-grandfather's great-grandfather." It occurs
in the Year Books.
DE EXCOMMUNICATO CAPIENDO.
A writ commanding the sheriff to arrest one who was excommunicated, and imprison him till he should become reconciled to the church. 3 Bl.Comm. 102.
Smith v. Nelson, 18 Vt. 511.
DE EXCOMMUNICATO DELIBERANDO. A writ
to deliver an excommunicated person, who has
made satisfaction to the church, from prison. 3
Bl.Comm. 102.
DE EXCOMMUNICATO RECAPIENDO.
Writ for
retaking an excommunicated person, where he had
been liberated from prison without making satisfaction to the church, or giving security for that
purpose. Reg. Orig. 67.
DE EXCUSATIONIBUS.
"Concerning excuses."
This is the title of book 27 of the Pandects, (in the
Corpus Juris Civilis.) It treats of the circumstances which excuse one from filling the office of
tutor or curator. The bulk of the extracts are
from Modestinus.
DE EXECUTIONE FACIENDA IN WITHERNAMIUM. Writ for making execution in withernam. Reg. Orig. 82b. A species of capias in wi-
thernam.
levying the expenses of knights. A writ directed
to the sheriff for levying the allowance for knights
of the shire in parliament. Reg. Orig. 191b, 192.
DE FACTO. In fact, in deed, actually. This
phrase is used to characterize an officer, a government, a past action, or a state of affairs which
must be accepted for all practical purposes, but is
illegal or illegitimate. In this sense it is the contrary of de jure, which means rightful, legitimate,
just, or constitutional. Thus, an officer, king, or
government de facto is one who is in actual possession of the office or supreme power, but by
usurpation, or without lawful title; while an officer, king, or governor de jure is one who has just
claim and rightful title to the office or power, but
has never had plenary possession of it, or is not in
actual possession. 4 Bl.Comm. 77, 78. MacLeod v.
United States, 229 U.S. 416, 33 S.Ct. 955, 57 L.Ed.
1260; Wheatley v. Consolidated Lumber Co., 167
Cal. 441, 139 P. 1057, 1059. So a wife de facto is
one whose marriage is voidable by decree, as distinguished from a wife de jure, or lawful wife. 4
Kent, Comm. 36. But the term is also frequently
used independently of any distinction from de
jure; thus a blockade de facto is a blockade which
is actually maintained, as distinguished from a
mere paper blockade. 1 Kent, 44. As to de facto
"Corporation," "Court," "Domicile," "Government," and "Officer," see those titles.
In old English law it means respecting or concerning the principal act of a murder, which was
technically denominated factum. See Fleta, lib. 1,
c. 27, § 18.
DE FACTO CONTRACT.
One which has purported to pass the property from the owner to an. other. Bank v. Logan, 74 N.Y. 575; Edmunds v..
Transp. Co., 135 Mass. 283.
DE FAIRE ECHELLE. In French law. A clause
commonly inserted in policies of marine insurance,
equivalent to a license to touch and trade at intermediate ports. American Ins. Co. v. Griswold,
14 Wend., N.Y. 491.
479
DE FALSO
DE FALSO JUDICIO. Writ of false judgment.
Reg.Orig. 15; Fitzh.Nat.Brev. 18. See False Judgment.
DE GESTU ET FAMA. Of behavior and reputation. An old writ which lay in cases where a
person's conduct and reputation were impeached.
DE FALSO MONETA. Of false money. The
title of the statute 27 Edw. I. ordaining that persons importing certain coins, called "pollards,"
and "crokards," should forfeit their lives and
goods, and everything they could forfeit. 2 Reeve,
Eng.Law, 228, 229.
DE GRATIA. Of grace or favor, by favor. De
speciali gratia, of special grace or favor.
DE FIDE ET OFFICIO JUDICIS NON RECIPITUR QUIESTIO, SED DE SCIENTIA, SIVE SIT
ERROR JURIS, SIVE FACTI. Concerning the
fidelity and official conduct of a judge, no question
is Lwill, be] entertained; but [only] concerning his
knowledge, whether the error [committed] be of
law or of fact. Bac.Max. 68, reg. 17. The bona
fides and honesty of purpose of a judge cannot
be questioned, but his decision may be impugned
for error either of law or fact. Broom, Max, 85.
The law doth so much respect the certainty of
judgments, and the credit and authority of judges,
that it will not permit any error to be assigned
which impeacheth them in their trust and office,
and in willful abuse of the same; but only in ignorance and mistaking either of the law, or of the
case and matter of fact. Bac.Max. ubi supra.
Thus, it cannot be assigned for error that a judge
did that which he ought not to do; as that he
entered a verdict for the plaintiff, where the jury
gave it for the defendant. Fitzh.Nat.Brev. 20, 21;
Bac.Max. ubi supra; Hardr. 127, arg.
DE FIDE! L1ESIONE. Of breach of faith or
fidelity. 4 Reeve, Eng.Law, 99.
DE FINE FORCE. L. Fr. Of necessity; of pure
necessity. See Fine Force.
DE FINE NON CAPIENDO PRO PULCHRE
PLACITANDO. A writ prohibiting the taking of
fines for beau pleader. Reg.Orig. 179.
DE FINE PRO REDISSEISINA CAPIENDO. A
writ which lay for the release of one imprisoned
for a re-disseisin, on payment of a reasonable
fine. Reg.Orig. 222b.
DE GRATIA SPECIAL! CERTA SCIENTIA ET
MERO MOTU, TALIS CLAUSULA NON VALET
IN HIS IN QUIBUS PRIESUMITUR PRINCIPEM
ESSE IGNORANTEM. 1 Coke, 53. The clause
"of our special grace, certain knowledge, and
mere motion," is of no avail in those things in
which it is presumed that the prince was ignorant.
DE GROSSIS ARBORIBUS DECEIVE NON DABUNTUR SED DE SYLVIA GEDUA DECIMiE
DABUNTUR. 2 Rolle, 123. Of whole trees, tithes
are not given; but of wood cut to be used, tithes
are given.
DE HZEREDE DELIBERANDO ILLI QUI HABET
CUSTODIAM TERRIE. Writ for delivering an
heir to him who has wardship of the land. A
writ directed to the sheriff, to require one that
had the body of him that was ward to another to
deliver him to the person whose ward he was by
reason of his land. Reg.Orig. 161.
DE HIEREDE RAPTO ET ABDUCTO. Writ concerning an heir ravished and carried away. A
writ which anciently lay for a lord who, having
by right the wardship of his tenant under age
could not obtain his body, the same being carried
away by another person. Reg.Orig. 163; Old
Nat.Brev. 93.
DE HIERETICO COMBURENDO. (Lat. For
burning a heretic.) A writ which formerly issued
from the secular courts for the execution, by
burning, of a heretic, who had been convicted in
the ecclesiastical courts of heresy, had abjured,
and had relapsed into heresy. It is said to be
very ancient. Fitzh.Nat.Brev. 269; 4 Bl.Comm.
46. See Ha retico Comburendo.
DE HOMAGIO RESPECTUANDO. A writ for
respiting or postponing homage. Fitzh.Nat.Brev.
269, A.
DE FINIBUS LEVATIS. Concerning fines levied.
The title of the statute 27 Edw. I. requiring fines
thereafter to be levied, to be read openly and
solemnly in court. 2 Inst. 521.
DE FORISFACTURA MARITAGII. Writ of forfeiture of marriage. Reg.Orig. 163, 164.
DE FRANGENTIBUS PRISONAM. Concerning
those that break prison. The title of the statute
1 Edw. II. ordaining that none from thenceforth
who broke prison should have judgment of life
or limb for breaking prison only, unless the cause
for which he was taken and imprisoned required
such a judgment if he was lawfully convicted
thereof. 2 Reeve, Eng.Law, 290; 2 Inst. 589.
DE FlURTO. Of theft. One of the kinds of criminal appeal formerly in use in England. 2 Reeve,
Eng.Law, 40.
DE HOMINE CAPTO IN WITHERNAM. (Lat.
For taking a man in withernam.) A writ to take
a man who had carried away a bondman or bondwoman into another country beyond the reach
of a writ of replevin.
DE HOMINE REPLEGIANDO. (Lat. For replevying a man.) A writ which lies to replevy a
man out of prison, or out of the custody of a private person, upon giving security to the sheriff
that the man shall be forthcoming to answer any
charge against him. Fitzh.Nat.Brev. 66; 3 Bl.
Comm. 129. This writ has been superseded almost wholly, in modern practice, by that of habeas corpus; but it is still used, in some of the
states, in an amended and altered form. See 1
Kent, Comm. 404n; 34 Me. 136.
DE IDENTITATE NOMINIS. A writ which lay
for one arrested in a personal action and corn-
480
DE LIBERTATE
enacted severe and arbitrary penalties against
the Jews.
mitted to prison under a mistake as to his identity, the proper defendant bearing the same name.
Reg.Orig. 194.
DE JUDICATO SOLVENDO. For payment of the
amount adjudged. A term applied in the Scotch
law to bail to the action, or special bail.
DE IDIOTA INQUIRENDO. An old common-law
writ, long obsolete, to inquire whether a man be
an idiot or not. 2 Steph.Comm. 509.
DE JUDICIIS. Of judicial proceedings. The title
of the second part of the Digests or Pandects, including the fifth, sixth, seventh, eighth, ninth,
tenth, and eleventh books. See Dig. Procem. § 3.
DE HS QUI PONENDI SUNT IN ASSISIS. Of
those who are to be put on assises. The title of
a statute passed 21 Edw. I. defining the qualifications of jurors. Crabb, Eng.Law, 167, 189; 2
Reeve, Eng.Law, 184.
DE JUDICIO SISTI. For appearing in court. A
term applied in the Scotch and admiralty law,
to bail for a defendant's appearance.
DE INCREMENTO. Of increase; in addition.
Costs de incremento, or costs of increase, are the
costs adjudged by the court in civil actions, in
addition to the damages and nominal costs found
by the jury. Gilb.Com.Pl. 260.
DE JURE. Of right; legitimate; lawful; by
right and just title. In this sense it is the contrary of de facto, ( which see.) It may also be
contrasted with de gratia, in which case it means
"as a matter of right," as de gratia means "by
grace or favor." Again it may be contrasted with
de cequitate; here meaning "by law," as the latter means "by equity." See Government.
DE INFIRMITATE. Of infirmity. The principal
essoin in the time of Glanville; afterwards called
"de ma/4f)." 1 Reeve, Eng.Law, 115. See De Malo;
Essoin.
DE INGRESSU. A writ of entry. Reg.Orig. 227b,
et seq.
DE INJURIA. Of [his own] wrong. In the technical language of pleading, a replication de injuria is one that may be made in an action of
tort where the defendant has admitted the acts
complained of, but alleges, in his plea, certain new
matter by way of justification or excuse; by this
replication the plaintiff avers that the defendant
committed the grievances in question "of his own
wrong, and without any such cause," or motive or
excuse, as that alleged in the plea, (de injuria sua
propria absque tali causa;) or, admitting part
of the matter pleaded, "without the rest of the
cause" alleged, (absque residuo causce.) In form
it is a species of traverse, and it is frequently
used when the pleading of the defendant, in answer to which it is directed, consists merely of
matter of excuse of the alleged trespass, grievance, breach of contract, or other cause of action.
Its comprehensive character in putting in issue
all the material facts of the defendant's plea has
also obtained for it the title of the general replication. Holthouse.
DE INOFFICIOSO TESTAMENTO. Concerning
an inofficious or undutiful will. A title of the civil
law. Inst. 2, 18.
DE INTEGRO. Anew; a second time. As it
was before.
DE INTRUSIONE. A writ of intrusion; where
a stranger entered after the death of the tenant, to the injury of the reversioner. Reg.Orig.
233b.
DE JACTURA EVITANDA. For avoiding a loss.
A phrase applied to a defendant, as de lucro captando is to a plaintiff. Jones v. Sevier, 1 Litt.,
Ky., 51, 13 Am.Dec. 218.
DE JUDAISMO, STATUTUM. The name of a
statute passed in the reign of Edward I. which
Black's Law Dictionary Revised 4th Ed.-31
DE JURE DECIMARUM, ORIGINEM DUCENS
DE JURE PATRONATUS, TUNC COGNITIO
SPECTAT AT LEGEM CIVILEM, e., COMMUN.
EM. Godb. 63. With regard to the right of tithes,
deducing its origin from the right of the patron,
then the cognizance of them belongs to the civil
law; that is, the common law.
DE JURE JUDICES, DE FACTO JURATORES,
RESPONDENT. The judges find the law, the
jury the facts. See Co.Litt. 295; Broom, Max. 99.
DE LA PLUIS BEALE, or BELLE. L. Fr. Of
the most fair. A term applied to a species of
dower, which was assigned out of the fairest of
the husband's tenements. Litt. § 48. See Dower
de la Plus.Belle.
DE LATERE. From the side; on the side; collaterally; of collaterals. Cod. 5, 5, 6.
DE LEGATIS ET FIDEI COMMISSIS. Of legacies and trusts. The name of a title of the Pandects. Dig. 30.
DE LEPROSO AMOVENDO. Writ for removing
a leper. A writ to remove a leper who thrust
himself into the company of his neighbors in any
parish, in public or private places, to their annoyance. Reg.Orig. 267; Fitzh.Nat.Brev. 234, E; New
Nat.Brev. 521.
DE LIBERA FALDA. Writ of free fold. A species of quod permittat. Reg.Orig. 155.
DE LIBERA PISCARIA. Writ of free fishery. A
species of quod permittat. Reg.Orig. 155.
DE LIBERO PASSAGIO. Writ of free passage.
A species of quod permittat. Reg.Orig. 155.
DE LIBERTATE PROBANDA. Writ for proving
liberty. A writ which lay for such as, being demanded for villeins or niefs, offered to prove
themselves free. Reg.Orig. 87b; Fitzh.Nat.Brev.
77, F.
481
DE LIBERTATIBUS
DE LIBERTATIBUS ALLOCANDIS. A writ of
various forms, to enable a citizen to recover the
liberties to which he was entitled. Fitzh.Nat.
Brev. 229; Reg.Orig. 262.
DE LICENTIA TRANSFRETANDI. Writ of permission to cross the sea. And old writ directed
to the wardens of the port of Dover, or other seaport in England, commanding them to permit the
persons named in the writ to cross the sea from
such port, on certain conditions. Reg.Orig. 193b.
DE LUNATICO INQUIRENDO. The name of a
writ directed to the sheriff, directing him to inquire by good and lawful men whether the party
charged is a lunatic or not. Den v. Clark, 10 N.J.
L. 217, 18 Am.Dec. 417; Hart v. Deamer, 6 Wend.,
N.Y., 497; In re Lindsley, 44 N.J.Eq. 564, 15 A. 1,
6 Am.St.Rep. 913.
DE MAGNA ASSISA ELIGENDA. A writ by
which the grand assise was chosen and summoned. Reg.Orig. 8; Fitzh.Nat.Brev. 4.
DE MAJORI ET MINOR! NON VARIANT JURA.
Concerning greater and less laws do not vary.
2 Vern. 552.
DE MALO. Of illness. This phrase was frequently used to designate several species of essoin,
(q. v.,) such as de malo lecti, of illness in bed;
de malo veniendi, of illness (or misfortune) in
coming to the place where the court sat; de malo
vilice, of illness in the town where the court sat.
DE MANUCAPTIONE. Writ of manucaption, or
mainprise. A writ which lay for one who, being
taken and imprisoned on a charge of felony, had
offered bail, which had been refused; requiring
the sheriff to discharge him on his finding sufficient mainpernors or bail. Reg.Orig. 268b; Fitzh.
Nat.Brev. 249, G.
DE MANUTENENDO. Writ of maintenance. A
writ which lay against a person for the offense
of maintenance. Reg.Orig. 189, 182b.
DE MEDIETATE LINGULE. Of the half tongue;
half of one tongue and half of another. This
phrase describes that species of jury which, at
common law, was allowed in both civil and criminal cases where one of the parties was an alien,
not speaking or understanding English. It was
composed of six English denizens or natives and
six of the alien's own countrymen.
DE MEDIO. A .writ in the nature of a writ of
right, which lay where upon a subinfeudation the
mesne (or middle) lord suffered his under-tenant
or tenant paravail to be distrained upon by the
lord paramount for the rent due him from the
mesne lord. Booth, Real Act, 136.
DE MELIORIBUS DAMNIS. Of or for the better
damages. A term used in practice to denote the
election by a plaintiff against which of several
defendants (where the damages have been assessed separately) he will take judgment. 1 Arch.
Pr.K.B. 219; Knickerbacker v. Colver, 8 Cow.,
N.Y., 111.
Judgment de melioribus damnis (of, or for, the
better damages). Where, in an action against several persons for a joint tort, the jury by mistake
sever the damages by giving heavier damages
against one defendant than against the others,
the plaintiff may cure the defect by taking judgment for the greater damages (de melioribus
damnis) against that defendant, and entering a
nolle prosequi (q. v.) against the others. Sweet.
DE MERCATORIBUS. "Concerning merchants."
The name of a statute passed in the eleventh
year of Edw. I. (1233,) more commonly called
the "Statute of Acton Burnel," authorizing the
recognizance by statute merchant. See 2 Reeve,
Eng.Law, 160-162; 2 Bl.Comm. 161.
DE MINIMIS NON CURAT LEX. The law does
not care for, or take notice of, very small or trifling matters. The law does not concern itself
about trifles. Cro.Eliz. 353. Thus, error in calculation of a fractional part of a penny will not
be regarded. Hob. 88. So, the law will not, in
general, notice the fraction of a day. Broom,
Max. 142.
DE MINIS. Writ of threats. A writ which lay
where a person was threatened with personal
violence, or the destruction of his property, to
compel the offender to keep the peace. Reg.Orig.
88b, 89; Fitzh.Nat.Brev. 79, G, 80.
DE MITTENDO TENOREM RECORD!. A writ
to send the tenor of a record, or to exemplify it
under the great seal. Reg.Orig. 220b.
DE MODERATA MISERICORDIA CAPIENDA.
Writ for taking a moderate amercement. A writ,
founded on Magna Charta, (c. 14,) which lay for
one who was excessively amerced in a court not
of record, directed to the lord of the court, or his
bailiff, commanding him to take a moderate
amercement of the party. Reg.Orig. 86b; Fitzh.
Nat.Brev. 75, 76.
DE MODO DECIMANDI. Of a modus of tithing.
A term applied in English ecclesiastical law to
a prescription to have a special manner of tithing. 2 Bl.Comm. 29; 3 Steph.Comm. 130.
DE MOLENDINO DE NOVO ERECTO NON JACET PROHIBITIO. Cro.Jac. 429. A prohibition
lies not against a newly-erected mill.
DE MORTE HOMINIS NULLA EST CUNCTATIO
LONGA. Where the death of a human being is
concerned, [in a matter of life and death,] no
delay is [considered] long. Co.Litt. 134.
DE NATIVO HABENDO. A writ which lay for a
lord directed to the sheriff, commanding him to apprehend a fugitive villein, and restore him, with
all his chattels, to the lord. Reg.Orig. 87; Fitzh.
Nat.Brev. 77.
DE NATURA BREVIUM. (Lat.) Concerning the
nature of writs. The title of more than one textbook of English Medimval law. Maitland, 2 Sel.
Essays in Anglo-Amer. Leg. Hist. 549. See Register of Writs.
482
DE PLACITO
DE NOMINE PROPRIO NON EST CURANDUM
CUM IN SUBSTANTIA NON ERRETUR; QUIA
NOMINA MUTABILIA SUNT, RES AUTEM
IMMOBILES. 6 Coke, 66. As to the proper name, it is not to be regarded where it errs
not in substance, because names are changeable,
but things immutable.
DE NON APPARENTIBUS, ET NON EXISTENTIBUS, EADEM EST RATIO. 5 Coke, 6. As to
things not apparent, and those not existing, the
rule is the same. Bennehan v. Webb, 28 N.C. 61;
U. S. v. Wilkinson, 12 How., U.S., 253, 13 L.Ed.
974, Fed.Cas.No. 16,6%; 5 Co. 6; 6 Bingh. N.C.
453; 7 Cl. & F. 872; 5 C.B. 53; 8 Id. 286; 1 Term
404; Quarles v. Quarles, 4 Mass. 685; 8 Id. 401;
Broom, Max. 163, 166.
DE NON DECIMANDO. Of not paying tithes. A
term applied in English ecclesiastical law to a
prescription or claim to be entirely discharged of
tithes, and to pay no compensation in lieu of them.
2 Bl. Comm. 31.
DE NON PROCEDENDO AD ASSISAM. A writ
forbidding the justices from holding an assise in
a particular case. Reg.Orig. 221.
DE NON RESIDENTIA CLERICI REGIS. An
ancient writ where a parson was employed in the
royal service, etc., to excuse and discharge him
of non-residence. 2 Inst. 264.
DE NON SANE MEMORIE. L. Fr. Of unsound
memory or mind; a phrase synonymous with non
compos mentis.
DE NOVI OPERIS NUNCIATIONE. In the civil
law. A form of interdict or injunction which lies
in some cases where the defendant is about to
erect a "new work" (q. v.) in derogation or injury of the plaintiff's rights.
DE NOVO. Anew; afresh; a second time. Archer v. High, 193 Miss. 361, 9 So.2d 647, 648; Duncan v. Mack, 59 Ariz. 36, 122 P.2d 215, 217. A
venire de novo is a writ for summoning a jury
for the second trial of a case which has been sent
back from above for a new trial. Slaughter v.
Martin, 9 Ala.App. 285, 63 So. 689, 690; Parker
v. Lewis, 45 Okl. 807, 147 P. 310, 311.
DE NULLO, QUOD EST SUA NATURA INDIVISIBILE, ET DIVISIONEM NON PATITUR,
NULLAM PARTEM HABEBIT VIDUA, SED SATISFACIAT EI AD VALENTIAM. Co. Litt. 32. A
widow shall have no part of that which in its own
nature is indivisible, and is not susceptible of division, but let the heir satisfy her with an equivalent.
DE NULLO TENEMENTO, QUOD TENETUR AD
TERMINUM, FIT HOMAGII, FIT TAMEN INDE
FIDELITATIS SACRAMENTUM. In no tenement
which is held for a term of years is there an avail
of homage; but there is the oath of fealty. Co.
Litt. 67b.
DE ODIO ET ATIA. A writ anciently called
"breve de bono et malo," addressed to the sheriff
to inquire whether a man committed to prison
upon suspicion of murder were committed on just
cause of suspicion, or only upon malice and ill
will (propter odium et atiam); and if, upon the
inquisition, due cause of suspicion did not appear,
then there issued another writ for the sheriff to
admit him to bail. 3 Bl.Comm. 128; Reg.Orig.
133.
DE OFFICE. L. Fr. Of office; in virtue of office;
officially; in the discharge of ordinary duty.
DE ONERANDO PRO RATA PORTIONE. Writ
for charging according to a rateable proportion.
A writ which lay for a joint tenant:or tenant in
common, who was distrained for more rent than
his proportion of the land came to. Reg.Orig.
182; Fitzh.Nat.Brev. 234, H.
DE PACE ET LEGALITATE TENENDA. For
keeping the peace, and for good behavior.
DE PACE ET PLAGIS. Of peace, (breach of
peace,) and wounds. One of the kinds of criminal
appeal formerly in use in England, and which lay
in cases of assault, wounding, and breach of the
peace. Bract. fol. 144; 2 Reeve, Eng.Law, 33.
DE PACE ET ROBERIA. Of peace [breach of
peace] and robbery. One of the kinds of criminal
appeal formerly in use in England, and which lay
in cases of robbery and breach of the peace.
Bract. fol. 146; 2 Reeve, Eng.Law, 37.
DE PALABRA. Span. By word; by parol.
White, New Recop. b. 2, tit. 19, c. 3, § 2.
DE PARCO FRACTO. A writ or action for damages caused by a pound-breach (q. v.). It has
long been obsolete. Co.Litt. 47b; 3 Bl.Comm. 146.
DE PARTITIONE FACIENDA. A writ which lay
to make partition of lands or tenements held by
several as coparceners, tenants in common, etc.
Reg.Orig. 76; Fitzh.Nat.Brev. 61, R; Old Nat.Brev.
142.
DE PERAMBULATIONE FACIENDA. A writ
which lay where there was a dispute as to the
boundaries of two adjacent lordships or towns, directed to the sheriff, commanding him to take
with him twelve discreet and lawful knights of
his county and make the perambulation and set
the bounds and limits in certainty. Fitzh.Nat.
Brev. 309, D.
DE PIGNORE SURREPTO FURTI, ACTIO. In
the civil law. An action to recover a pledge stolen.
Inst. 4, 1, 14.
DE PIPA VINI CARIANDA. A writ of trespass
for carrying a pipe of wine so carelessly that it
was stove, and the contents lost. Reg.Orig. 110.
Alluded to by Sir William Jones in his remarks on
the case of Coggs v. Bernard, 2 Ld.Raym. 909.
Jones, Bailm. 59.
DE PLACITO. Of a plea; of or in an action.
Formal words used in declarations and other proceedings, as descriptive of the particular action
brought.
483
DE PLAGIS
DE PLAGIS ET MAHEMIO. Of wounds and
mayhem. The name of a criminal appeal formerly in use in England, in cases of wounding
and maiming. Bract. fol. 144b; 2 Reeve, Eng.
Law, 34. See Appeal.
DE QUOTA LITIS. In the civil law. A contract
by which one who has a claim difficult to recover
agrees with another to give a part, for the purpose of obtaining his services to recover the rest.
1 Duval, note 201.
DE PLANO. Lat. On the ground; on a level.
A term of the Roman law descriptive of the method of hearing causes, when the prtor stood on
the ground with the suitors, instead of the more
formal method when he occupied a bench or tribunal; hence informal, or summary.
DE RAPTU VIRGINUM. Of the ravishment of
maids. The name of an appeal formerly in use
in England in cases of rape. Bract. fol. 147; 2
Reeve, Eng.Law, 38.
DE PLEGIIS ACQUIETANDIS. Writ for acquitting or releasing pledges. A writ that lay for a
surety, against him for whom he had become surety for the payment of a certain sum of money at
a certain day, where the latter had not paid the
money at the appointed day, and the surety was
compelled to pay it. Reg.Orig. 158; Fitzh.Nat.
Brev. 137, C; 3 Reeve, Eng.Law, 65.
DE PONENDO SIGILLUM AD EXCEPTIONEM.
Writ for putting a seal to an exception. A writ
by which justices were formerly commanded to
put their seals to exceptions taken by a party in
a suit. Reg.Orig. 182.
DE POST DISSEISINA. Writ of post disseisin.
A writ which lay for him who, having recovered
lands or tenements by prcecipe quod reddat, on
default, or reddition, was again disseised by the
former disseisor. Reg.Orig. 208; Fitzh.Nat.Brev.
190.
DE RATIONABILI PARTE BONORUM. A writ
which lay for the widow (and children) of a deceased person against his executors, to recover a
third part of the deceased's personalty, after payment of his debts, or to recover their reasonable
part or share of his goods. 2 Bl.Comm. 492;
Fitzh.Nat.Brev. 122, L; Hopkins v. Wright, 17
Tex. 36.
DE RATIONABILIBUS DIVISIS. Writ for fixing
reasonable boundaries. A writ which lay to settle
the boundaries between the lands of persons in different towns, where one complained of encroachment. Reg.Orig. 157b; Fitzh.Nat.Brev. 128, M;
Rosc.Real Act. 31; 3 Reeve, Eng.Law, 48.
DE REBUS. Of things. The title of the third
part of the Digests or Pandects, comprising books
12-19, inclusive.
DE REBUS DUBIIS. Of doubtful things or matters. Dig. 34, 5.
DE RECORDO ET PROCESSU MITTENDIS.
Writ to send the record and process of a cause to
a superior court; a species of writ of error. Reg.
Orig. 209.
DE PRAROGATIVA REGIS. The statute 17
Edw. I., St. 1, c. 9, defining the prerogatives of the
crown'on certain subjects, but especially directing
that the king shall have ward of the lands of idiots,
taking the profits without waste, and finding them
necessaries. 2 Steph.Comm. 529.
DE RECTO. Writ of right. Reg.Orig. 1, 2; Bract.
fol. 327b. See Writ of Right.
DE PR)ESENTI. Of the present; in the present
tense. See Per Verba de Praesenti.
DE PROCEDENDO AD JUDICIUM. A writ proceeding out of chancery and ordering the judges
of any court to proceed to judgment. 3 Bla.Com.
109.
DE PROPRIETATE PROBANDA. Writ for proving property. A writ directed to the sheriff, to
inquire of the property or goods distrained, where
the defendant in an action of replevin claims the
property. 3 Bl.Comm. 148; Reg.Orig. 85b.
DE QUARANTINA HABENDA. At common law,
a writ which a widow entitled to quarantine might
sue out in case the heir or other persons ejected
her. It seems to have been a summary process,
and required the sheriff, if no just cause were
shown against it, speedily to put her into possession. Aiken v. Aiken, 12 Or. 203, 6 P. 682.
DE QUIBUS SUR DISSEISIN. An ancient writ of
entry.
DE QUO, and DE QUIBUS. Of which. Formal
words in the simple writ of entry, from which it
was called a writ of entry "in the quo," or "in the
quibus." 3 Reeve, Eng.Law, 33.
DE RECTO DE ADVOCATIONE. Writ of right
of advowson. Reg.Orig. 29b. A writ which lay
for one who had an estate in an advowson to him
and his heirs in fee-simple, if he were disturbed
to present. Fitzh.Nat.Brev. 30, B. Abolished by
St. 3 & 4 Wm. IV. c. 27.
DE RECTO DE RATIONABILI PARTE. Writ of
right, of reasonable part. A writ which lay between privies in blood, as between brothers in gavelkind, or between sisters or other coparceners for
lands in fee-simple, where one was deprived of his
o her share by another. Reg.Orig. 3b; Fitzh.
Nat.Brev. 9, B. Abolished by St. 3 & 4 Wm. IV.
c. 27.
DE RECTO PATENS. Writ of right patent.
Reg. Orig. 1.
DE REDISSEISINA. Writ of redisseisin. A writ
which lay where a man recovered by assise of
novel disseisin land, rent, or common, and the
like, and was put in possession thereof by verdict,
and afterward was disseised of the same land,
rent, or common, by him by whom he was disseised before. Reg. Orig. 206b; Fitzh. Nat. Brev.
188, B.
484
DE TRANSGRESSIONE
DE REPARATIONE FACIENDA. A writ by
which one tenant in common seeks to compel another to aid in repairing the property held in common. 8 Barn. & C. 269.
DE RESCUSSU. Writ of rescue or rescous. A.
writ which lay where cattle distrained, or persons arrested, were rescued from those taking
them. Reg. Orig. 117, 118; Fitzh. Nat. Brev. 101,
C, G.
DE RETORNO HABENDO. For having a return;
to have a return. A term applied to the judgment
for the defendant in an action of replevin, awarding him a return of the goods replevied; and to
the writ or execution issued thereon. 2 Tidd, Pr.
993, 1038; 3 Bl. Comm. 149. Applied also to the
sureties given by the plaintiff on commencing the
action. Id. 147.
DE RIEN CULPABLE. L. Fr. Guilty of nothing; not guilty.
DE SA VIE. L. Fr. Of his or her life; of his
own life; as distinguished from pur autre vie,
for another's life. Litt. §§ 35, 36.
DE SALVA GARDIA. A writ of safeguard allowed to strangers seeking their rights in English
courts, and apprehending violence or injury to
their persons or property. Reg. Orig. 26.
DE SALVO CONDUCTU. A writ of safe conduct.
Reg. Orig. 25b, 26.
DE SCACCARIO. Of or concerning the exchequer. The title of a statute passed in the fiftyfirst year of Henry III. 2 Reeve, Eng. Law, 61.
DE SCUTAGIO HABENDO. Writ for having (or
to have) escuage or scutage. A writ which anciently lay against tenants by knight-service, to
compel them to serve in the king's wars or send
substitutes or to pay escuage; that is a sum of
money. Fitzh. Nat. Brev. 83, C. The same writ
lay for one who had already served in the king's
army, or paid a fine instead, against those who
held of him by knight-service, to recover his escuage or scutage. Reg. Orig. 88; Fitzh. Nat.
Brev. 83, D, F.
tor without any just authority is called an "executor of his own wrong," (de son tort.) 2 Bl. Comm.
507; 2 Steph. Comm. 244.
An executor de son tort is an executor of his own wrong.
A person who assumes to act as executor of an estate.
out any lawful warrant or authority, but who, by his
intermeddling, makes himself liable as an executor to a
certain extent. If a stranger takes upon him to act as
executor without any just authority, (as by intermeddling
with the goods of the deceased, and many other transactions,) he is called in law an "executor of his own wrong,"
de son tort. 2 BI.Comm. 507. Allen v. Hurst, 120 Ga. 763,
48 S.E. 341; In re Pedroli's Estate, 47 Nev. 313, 21 P. 241,
242, 31 A.L.R. 841; Walker v. Portland Savings Bank, 113
Me. 353, 93 A. 1025, L.R.A.1915E, 840; Lowery v. Lowery,
225 Ala. 376, 143 So. 556, 557.
DE SON TORT DEMESNE. Of his own wrong.
The law French equivalent of the Latin phrase
do injuria (q. v.).
DE STATUTO MERCATORIO. The writ of statute merchant. Reg. Orig. 146b.
DE STATUTO STAPULIE. The writ of statute
staple. Reg. Orig. 151.
DE SUPERONERATIONE PASTURE. Writ of
surcharge of pasture. A judicial writ which lay
for him who was impleaded in the county court,
for surcharging a common with his cattle, in a
case where he was formerly impleaded for it in
the same court, and the cause was removed into
one of the courts at Westminster. Reg. Jud. 36b.
DE TABULIS EXHIBENDIS. Of showing the
tablets of a will. Dig. 43, 5.
DE TALLAGIO NON CONCEDENDO. Of not
allowing talliage. The name given to the statutes 25 and 34 Edw. I., restricting the power of
the king to grant talliage. 2 Inst. 532; 2 Reeve,
Eng. Law, 104.
DE TEMPORE CUJUS CONTRARIUM MEMORIA HOMINUM NON EXISTIT. From time
whereof the memory of man does not exist to the
contrary. Litt. § 170.
DE TEMPORE IN TEMPUS ET AD OMNIA
TEMPORA. From time to time, and at all times.
Townsh. Pl. 17.
DE TEMPS DONT MEMORIE NE COURT, L.
Fr. From time whereof memory runneth not;
time out of memory of man. Litt. §§ 143, 145, 170.
DE SE BENE GERENDO. For behaving himself
well; for his good behavior. Yelv. 90, 154.
DE SECTA AD MOLENDINUM. Of suit to a
mill. A writ which lay to compel one to continue
his custom (of grinding) at a mill. 3 Bl. Comm.
235; Fitzh. Nat. Brev. 122, M.
DE SIMILIBUS AD SIMILIA. EADEM RATIONE
PROCEDENUM EST. From like things to like
things we are to proceed by the same rule or reason, [i. e., we are allowed to argue from the analogy of cases.] Branch, Princ.
DE SIMILIBUS IDEM EST JUDICANDUM. Of
[respecting] like things, [in like cases, the judgment is to be the same. 7 Coke, 18.
DE SON TORT. L. Fr. Of his own wrong. A
stranger who takes upon him to act as an execu-
DE TESTAMENTIS. Of testaments. The title of
the fifth part of the Digests or Pandects; comprising the twenty-eighth to the thirty-sixth books,
both inclusive.
DE THEOLONIO. A writ which lay for a person
who was prevented from taking toll. Reg. Orig.
103.
DE TRANSGRESSIONE. A writ of trespass.
Reg. Orig. 92.
DE TRANSGRESSIONE, AD AUDIENDUM ET
TERMINANDUM. A writ or commission for the
hearing and determining any outrage or misdemeanor.
485
DE UNA
DE UNA PARTE. A deed de una parte is one
where only one party grants, gives, or binds himself to do a thing to another. It differs from a
deed inter partes, (q. v.) 2 Bouv. Inst. no. 2001.
appear at the day in court. It was directed to
the justices, that they should not record him to be
in default for his not appearing. Fitzh. Nat. Brev.
17, A; Termes de la Ley.
DE UXORE RAPTA ET ABDUCTA. A writ
which lay where a man's wife had been ravished
and carried away. A species of writ of trespass.
Reg. Orig. 97; Fitzh. Nat. Brev. 89, 0; 3 BL
Comm. 139.
DEACON. In ecclesiastical law. A minister or
servant in the church, whose office is to assist the
priest in divine service and the distribution of
the sacrament. It is the lowest degree of holy
orders in the Church of England. 2 Steph. Comm.
660.
DE VASTO. Writ of waste. A writ which might
be brought by him who had the immediate estate
of inheritance in reversion or remainder, against
the tenant for life, in dower, by curtesy, or for
years, where the latter had committed waste in
lands; calling upon the tenant to appear and
show cause why he committed waste and destruction in the place named, to the disinherison (ad
exhceredationem) of the plaintiff. Fitzh. Nat.
Brev. 55, C; 3 Bl. Comm. 227, 228. Abolished by
St. 3 & 4 Wm. IV, c. 27. 3 Steph. Comm. 506.
DE VENTRE INSPICIENDO. A writ to inspect
the body, where a woman feigns to be pregnant,
to see whether she is with child. It lies for the
heir presumptive to examine a widow suspected
to be feigning pregnancy in order to enable a
supposititious heir to obtain the estate. 1 Bl.
Comm. 456; 2 Steph. Comm. 287. It lay also
where a woman sentenced to death pleaded pregnancy. 4 Bl. Comm. 395. This writ has been recognized in America. 2 Chand. Crim. Tr. 381.
DE VERBO IN VERBUM. Word for word.
Bract. fol. 138b. Literally, from word to word.
DE VERBORUM SIGNIFICATIONE. Of the signification of words. An important title of the
Digests or Pandects, (Dig. 50, 16,) consisting entirely of definitions of words and phrases used in
the Roman law.
DE VI LAICA AMOVENDA. Writ of (or for)
removing lay force. A writ which lay where two
parsons contended for a church, and one of them
entered into it with a great number of laymen,
and held out the other vi et armis; then he that
was holden out had this writ directed to the sheriff, that he remove the force. Reg. Orig. 59;
Fitzh. Nat. Brev. 54, D.
DE VICINETQ. From the neighborhood, or vicinage. 3 Bl.Comm. 360. A term applied to a jury.
DE WARRANTIA CHARTIE. Writ of warranty
of charter. A writ which lay for him who was
enfeoffed, with clause of warranty, [in the charter of feoffment,1 and was afterwards impleaded
in an assise or other action, in which he could not
vouch or call to warranty; in which case he might
have this writ against the feoffor, or his heir, to
compel him to warrant the land unto him. Reg.
Orig. 157b; Fitzh. Nat. Brev. 134, D. Abolished
by St. 3 & 4 Wm. IV, c. 27.
DE WARRANTIA DIET. A writ that lay where
a man had a day in any action to appear in proper person, and the king at that day, or before, employed him in some service, so that he could not
DEAD BODY. A corpse. The body of a human
being, deprived of life, but not yet entirely disintegrated. Meads v. Dougherty County, 98 Ga.
697, 25 S.E. 915.
DEAD-BORN. A dead-born child is to be considered as if it had never been conceived or born;
in other words, it is presumed it never had life,
it being a maxim of the common law that mortuus exitus non est exitus (a dead birth is no
birth). Co. Litt. 29 b. See Marsellis v. Thalhimer, 2 Paige, Ch., N.Y., 35, 21 Am.Dec. 66; 4 Ves.
334. This is also the doctrine of the civil law.
Dig. 50. 16. 129; La.Civ.Code, art. 28; Domat, liv.
prel. t. 2, s. 1, nn. 4, 6.
DEAD FREIGHT. The amount paid by a charterer for that part of the vessel's capacity which
he does not occupy although he has contracted
for it. Gray v. Carr, L. R. 6 Q. B. 528; Phillips v.
Rodie, 15 East 547.
When the charterer of a vessel has shipped part of the
goods on board, and is not ready to ship the remainder,
the master, unless restrained by his special contract, may
take other goods on board, and the amount which is not
supplied, required to complete the cargo, is considered
dead freight. The dead freight is to be calculated according to the actual capacity of the vessel. 3 Chit.Com.Law
399; 2 Stark. 450; McCull.Com.Dic.
"Dead freight" is the compensation payable to the shipowner when the charterer has failed to ship a full cargo,
and "freight" is recompense the shipowner is to receive
for carrying the cargo into its port of discharge. Kish v.
Taylor (1912) A.C. 604, 613, citing Carver's Carriage By
Sea, par. 666.
DEAD LETTER. A term sometimes applied to
an act that has become obsolete by long disuse.
DEAD LETTERS. Letters which the postal department has not been able to deliver to the persons for whom they were intended. They are sent
to the "dead-letter office," where they are opened,
and returned to the writer if his address can be
' ascertained.
DEAD MAN'S PART. In English law, that portion of the effects of a deceased person which, by
the custom of London and York, is allowed to the
administrator; being, where the deceased leaves
a widow and children, one-third; where he leaves
only a widow or only children, one-half; and,
where he leaves neither, the whole. This portion
the administrator was wont to apply to his own
use, till the statute 1 Jac. II, c. 17, declared that
the same should be subject to the statute of distributions. 2 Bl. Comm. 518; 2 Steph. Comm. 254;
4 Reeve, Eng.Law, 83. A similar portion in Scotch
law is called "dead's part," (q. v.)
486
DEALER
DEAD-PLEDGE. A mortgage, mortuum vadium. • DEADMAN. As applied to a lifting appliance, a
piece of timber placed across an opening in the
DEAD RENT, In English law. A rent payable
ground to which a snatch hook is attached. The
on a mining lease in addition to a royalty, so callTeddy, D.C.N.Y., 226 F. 498, 500.
ed because it is payable although the mine may
DEAF AND DUMB. A man that is born deaf,
not be worked.
dumb, and blind is looked upon by the law as in
DEAD STORAGE. The storage, especially of authe same state with an idiot, he being supposed
tomobiles in public garages, where automobiles
incapable of any understanding. 1 Bl. Comm.
not in use are to remain uninterruptedly for a
304. See, however, Alexier v. Matzke, 151 Mich.
time, sometimes for the season. Hogan v.
36, 115 N.W. 251, 123 Am.St.Rep. 255. NevertheO'Brien, 123 Misc. 865, 206 N.Y.S. 831.
less, a deaf and dumb person may be tried for
felony if the prisoner can be made to understand
DEAD USE. A future use.
by means of signs. 1 Bish. Cr. L. § 395; Commonwealth v. Hill, 14 Mass. 207; State v. Harris,
DEAD WIRE. One which never carries electric53 N.C. 136, 78 Am.Dec. 272; 1 Houst.Cr.Rep. 291;
ity, or which, at some particular time, is not
Felts v. Murphy, 201 U.S. 123, 26 S.Ct. 366, 50 L.
charged with an electric current. City of ShawEd. 689.
nee v. Sears, 39 Okl. 789, 137 P. 107, 110, 50 L.R.
A.,N.S., 885.
DEAFFOREST. See Disafforest.
DEAD'S PART. In Scotch law. The part reDEAL, n. An arrangement to attain a desired
maining over beyond the shares secured to the
result by a combination of interested parties;
widow and children by law. Of this the testator
Gaut v. Dunlap, Tex.Civ.App., 188 S.W. 1020, 1021;
had the unqualified disposal. Bell; Stair, Inst.
Ball v. Davenport, 170 Iowa 33, 152 N.W. 69, 71;
lib. iii. tit. 4, § 24; Paterson, Comp. §§ 674, 848,
the prime object being usually the purchase, sale,
902.
or exchange of property for a profit; Chambers
DEADHEAD. A term applied to persons other
v. Johnston, 180 Ky. 73, 201 S.W. 488, 493. Also,
than the officers, agents, or employees of a railan act of buying and selling; a bargain. Oregon
road company who are permitted by the company
Home Builders v: Montgomery Inv. Co., 94 Or.
to travel on the road without paying any fare
349, 184 P. 487, 493.
therefor. Gardner v. Hall, 61 N.C. 21.
A "deal" between two parties includes any transaction of
DEADLY FEUD. In old European law. A profession of irreconcilable hatred till a person is revenged even by the death of his enemy.
DEADLY WEAPON. Such weapons or instruments as are made and designed for offensive or
defensive purposes, or for the destruction of life
or the infliction of injury. Commonwealth v.
Branham, 8 Bush (Ky.) 387. One likely to produce death or great bodily harm. People v. Fuqua, 58 Cal. 245; State v. Hedrick, 99 W.Va. 529,
130 S.E. 295, 298.
One which, from the manner used, is calculated
or likely to produce death or serious bodily injury.
Harris v. State, 72 Tex.Cr.R. 491, 162 S.W. 1150,
1151; Burgess v. Commonwealth, 176 Ky. 326, 195
S.W. 445.
Any weapon darikerous to life, or with which
death may be easily and readily produced. Parman v. Lemmon, 119 Kan. 323, 244 P. 227, 229, 44
A.L.R. 1500; People v. Dwyer, 324 Ill. 363, 155
N.E. 316, 317.
The term may denote any instrument so used as to be
likely to produce death or great bodily harm, and hence
may include an automobile, especially within the meaning
of statutes pertaining to assault. Williamson v. State, 92
Fla. 980, 111 So. 124, 125, 53 A.L.R. 250. But an automobile, when used innocently or negligently so as to be likely to produce death or bodily injury, or to actually produce them without criminal liability, has been held not to
be a deadly weapon within the meaning of the criminal
law. People v. Cash, 326 Ill. 104, 157 N.E. 76, 79; State
v. Clark, 196 Iowa, 1134, 196 N.W. 82, 84.
DEADLY WEAPON PER SE. A weapon which of
itself is deadly or one which would ordinarily result in death by its use. Baylor v. State, 151 Tex.
Cr.R. 365, 208 S.W.2d 558, 561.
any kind between them, and when applied to a transaction
concerning a house or block, the term does not necessarily
i mply an agreement to sell or convey, for the agreement
might be to rent or lease the property. Osborne v. Moore,
112 Tex. 361, 247 S.W. 498, 499.
DEAL, v. To traffic; to transact business; to
trade. See Borg v. International Silver Co., C.C.
A.N.Y., 11 F.2d 147, 150. Also, to act between two
persons, to intervene, or to have to do with. State
v. Morro, 313 Mo. 114, 280 S.W. 697, 699.
To "deal" in a commodity, however, such as automobiles,
within the meaning of a privilege tax statute, means something more than the making of an occasional sale in a municipality where the seller has no place of business, and no
stock ,of automobiles on hand. City of Pascagoula v.
Carter, 136 Miss. 750, 101 So. 687, 688.
As to dealing in futures, see Futures.
DEALER. In the popular sense, one who buys to
one who buys to keep, or makes to sell.
Commonwealth v. Lutz, 284 Pa. 184, 130 A. 410,
411; Moore v. State, 148 Ga. 457, 97 S.E. 76, 77;
In re I. Rheinstrom & Sons Co., D.C.Ky., 207 F.
119, 136.
The term includes one who carries on the business of
selling goods, wares, and merchandise, manufactured by
him at a store or warehouse apart from his own shop, or
manufactory. Atlantic Refining Co. v. Van Valkenburg,
265 Pa. 456, 109 A. 208, 209.
A "dealer," as in narcotics, is one who sells promiscuously, -one who is ready and willing to sell to anyone applying to purchase, if unaware that they are officers or undercover men. Taylor v. U. S., C.C.A.Mo., 19 F.2d 813, 815.
Under Blue Sky Laws, a "dealer" Is one making successive sales as a business. People v. glum, 213 Mich. 651, 182
N.W. 136, 138. 15 A.L.R. 253 ; State v. Barrett, 121 Or. 57,
254 P. 198, 200. Compare, also, Commonwealth v. Silverman, 220 Mass. 552, 108 N.E. 358, Ann.Cas.1917A, 948.
For various definitions under particular statutes, see
State v. Perkins, 88 Vt. 121, 92 A. 1, 2 (dealer in evergreen
487
DEALER
trees); Texas Co. v. State, 31 Ariz. 485, 254 P. 1060, 1063,
53 A.L.R. 258 (dealer in gasoline); Pierce v. Hutchinson,
241 Mass. 557, 136 N.E. 261, 263 (dealer in motor vehicles).
Makers of an accommodation note are deemed dealers
with whoever discounts it. Vernon v. Manhattan Co., 17
Wend., N.Y., 524.
Dealers' talk. That picturesque and laudatory
style affected by nearly every trader in setting
forth the attractive qualities of the goods he offers
for sale. Prince v. Brackett, Shaw & Lunt Co.,
125 Me, 31, 130 A. 509, 511. The puffing of goods
to induce the sale thereof; not regarded in law as
fraudulent unless accompanied by some artifice to
deceive the purchaser and throw him off his guard
or some concealment of intrinsic defects not easily discoverable. Kimball v. Bangs, 144 Mass,
321, 11 N.E. 113; Williams v. Fouche, 164 Ga, 311,
138 S.E. 580, 581.
Real estate dealer. One who, on his own account and as a business independent of that of
another real estate agent, engages for a consideration to aid others, whether the owners of the
property or their agents, in selling real estate
which is offered for sale. Horsley v. Woodley,
12 Ga.App. 456, 78 S.E. 260, 261.
DEALINGS. Transactions in the course of trade
or business;-held to include payments to a bankrupt. Moody & M. 137; 3 Car. & P. 85.
DEAN. In English ecclesiastical law. An ecclesiastical dignitary who presides over the chapter
of a cathedral, and is next in rank to the bishop.
So called from having been originally appointed
to superintend ten canons or prebendaries. 1 Bl.
Comm, 382; Co, Litt, 95; Spelman.
There are several kinds of deans, namely: Deans of
chapters; deans of peculiars; rural deans; deans in the
colleges; honorary deans; deans of provinces.
DEAN AND CHAPTER. In ecclesiastical law.
The council of a bishop, to assist him with their
advice in the religious and also in the temporal
affairs of the see. 3 Co, 75; 1 Bla. Comm. 382;
Co. Litt 103, 300; Termes de la Ley; 2 Burn, Eccl,
Law 120.
DEAN OF THE ARCHES. The presiding judge
of the Court of Arches. He is also an assistant
judge in the court of admiralty. 1 Kent, Comm,
371; 3 Steph. Comm. 727.
DEATH. The cessation of life; the ceasing to
exist; defined by physicians as a total stoppage
of the circulation of the blood, and a cessation of
the animal and vital functions consequent thereon, such as respiration, pulsation, etc.
This is "natural death," in contradistinction to "civil
death," and, also, to "violent death," See those titles,
infra.
Civil death. The state of a person who, though
possessing natural life, has lost all his civil rights,
and as to them, is considered as dead. Quick v.
Western Ry. of Alabama, 207 Ala. 376, 92 So,
608, 609. At common law, the extinction of civil
rights and relations, so that the property of a
person declared civilly dead passes to his heirs
as if dead in fact. Holmes v. King, 216 Ala. 412,
113 So. 274, 276.
The "civil death" spoken of In the books, is of two
kinds : (1) Where there is a total extinction of the civil
rights and relations of the party, so that he can neither
take nor hold property, and his heirs succeed to his estate
in the same manner as if he were really dead, or the estate
is forfeited to the crown. (2) Where there is an incapacity
to hold property, or to sue in the king's courts, attended
with forfeiture of the estate to the crown. Of the first
kind, are the cases of monks professed, and abjuration of
the realm; all the other cases are of the second kind.
Strictly speaking, there but two cases of civil death; those
of a monk professed, and an abjuration of the realm. In
re Erskine, C.C.A.Ind., 1 F.2d 149, 152. See, generally,
Chit.Crim.Law 723; Co.Litt. §§ 133, 199, note; Littleton
§ 200; 1 Bl.Comm. 132; Avery v. Everett, 110 N.Y. 317, 18
N.E. 148, 1 L.R.A. 264; In re Donnelly's Estate, 125 Cal.
417, 58 P. 61, 73 Am.St.Rep. 62.
In New York a person sentenced to imprisonment is
thereafter deemed civilly dead under Penal Law § 511.
See Platner v. Sherwood, 6 Johns.Ch., N.Y., 118; Troup v.
Wood, 4 Johns.Ch., N.Y., 228, 260,
Death-bed. In Scotch law. A state of sickness
which ends in death. Ersk. Inst. 3, 8, 95.
Death-bed deed. In Scotch law. A deed made
by a person while laboring under a distemper of
which he afterwards died. Ersk. Inst. 3, 8, 96. A
deed is understood to be in death-bed, if, before
signing and delivery thereof, the grantor was sick,
and never convalesced thereafter. 1 Forbes, Inst.
pt. 3, b. 2, c. 4, tit. 1, § 1. But it is not necessary
that he should be actually confined to his bed at
the time of making the deed. Bell.
Death duty. A charge or toll which the state
makes upon the right to transmit or to receive
property on the death of the owner. In re Heck's
Estate, 120 Or, 80, 250 P. 735, 736. The usual name
in England for an inheritance tax.
Death warrant. A warrant from the proper
executive authority appointing the time and place
for the execution of the sentence of death upon a
convict judicially condemned to suffer that penalty.
Death watch. A special guard set to watch a
prisoner condemned to death, for some days before the time for the execution, the special purpose being to prevent any escape or any attempt
to anticipate the sentence.
Natural death. A death which occurs by the
unassisted operation of natural causes, as distinguished not only from "civil death," but also from
"violent death" (q. v.)
Presumptive death. That which is presumed
from proof of a long continued absence unheard
from and unexplained. The general rule, as now
understood, is that the presumption of the duration of life ceases at the expiration of seven years
from the time when the person was last known to
be living; and after the lapse of that period there
is a presumption of death. Smith v. Knowlton,
11 N.H. 197; Chamb. Best Ev. 304, note, collecting
the cases; 4 U.C.Q.B. 510; 1 Greenl. Ev. § 41; 5
B. & Ad. 86; Maley v. Pennsylvania R. Co., 258
Pa. 73, 101 A. 911, L.R.A.1918A, 563. In most of
the states the subject is regulated by statute.
488
DEBET
The better opinion is that there is no presumption as to
the time of death. Davie v. Briggs, .97 U.S. 628, 24 L.Ed.
1086; Chamb.Best Ev. 305; 2 Brett, Corm 941; 2 M. & W.
894. But it has been held that death is presumed to take
place at the end of the seven years' absence; Brotherhood
of Locomotive Firemen and Engineers v. Nash, 144 Md.
623, 125 A. 441; Apitz v. Supreme Lodge Knights and
Ladies of Honor, 274 Ill. 196, 113 N.E. 63, L.R.A.1917A,
183; or at a time of peril, Conner v. New York Life Ins.
Co., 166 N.Y.S. 985, 179 App.Div. 596.
Violent death. One caused or accelerated by
the interference of human agency ;—distinguished
from "natural death."
DEATH'S PART, See Dead's Part; Dead Man's
Part.
DEATHSMAN. The executioner; hangman; he
that executes the extreme penalty of the law.
DEATH TRAP. A structure or situation involving
imminent risk of death or a place apparently safe
but actually very dangerous to life. Benson v.
Missouri, K. & T. R. Co., Tex.Civ.App., 200 S.W.
2d 233, 240.
DEBASING. This word, in a statute making it
slander to charge another with being guilty of
some "debasing act which may exclude him from
society," has reference to those repulsive acts
which would cause him to be shunned or avoided,
in the same way as would a contagious disease.
Morris v. Evans, 22 Ga.App. 11, 95 S.E. 385, 386.
DEBAUCH. To corrupt one's manners; to make
lewd; to mar or spoil; to entice; and, when used
of a woman, to seduce, or corrupt with lewdness.
Litton v. Woliver, 126 Va. 32, 100 S.E. 827, 828;
State v. Howard, 264 Mo. 386, 175 S.W. 58, 59.
Originally, the term had a limited signification,
meaning to entice or draw one away from his
work, employment, or duty; and from this sense
its application has enlarged to include the corruption of manners and violation of the person. In
RS modern legal sense, the word carries with it
the idea of "carnal knowledge," aggravated by assault, violent seduction, ravishment. Koenig v.
Nott, 2 Hilt., N.Y., 323. And see State v. Curran,
51 Iowa, 112, 49 N.W. 1006. See, also, Debauchery.
DEBAUCHERY. In general, excessive indulgence
in sensual pleasures; in a narrower sense, sexual
immorality or excesses, or the unlawful indulgence of lust. Suslak v. United States, C.C.A.
Mont., 213 F. 913, 917; Gillette v. United States,
C.C.A.N.D., 236 F. 215, 217.
In the White Slave Act, Act June 25, 1910, c. 395, 36 Stat.
825, 18 U.S.C.A. § 2421 et seq., making it an offense to procure the interstate transportation of a girl for the purpose of prostitution and debauchery, "debauchery" is not
li mited to the meaning of seduction, but includes a purpose to expose her to such influence as will naturally and
inevitably so corrupt her character as to lead her to acts
of sexual immorality, or, if she is already a sexually corrupt woman, a purpose that she shall engage or continue
more or less habitually in sexually immoral practices.
Van Pelt v. United States, C.C.A.Va., 240 F. 346, 348, L.R.
A.1917E, 1135.
DEBENTURE. A certificate given by the collector of a port, under the United States customs
laws, to the effect that an importer of merchandise therein named is entitled to a drawback,
(q. v.,) specifying the amount and time when payable. See Act Cong. March 2, 1799, § 80, 1 St. at
Large 687.
An instrument in use in some government departments, particularly in England, by which the
government is charged to pay to a creditor or his
assigns the sum found due on auditing his accounts. Brande; Blount.
A security for a loan of money issued .by a public company, usually creating a charge on the
whole or a part of the company's stock and property, though not necessarily in the form of a
mortgage. They are subject to certain regulations as to the mode of transfer, and ordinarily
have coupons attached to facilitate the payment
of interest. They are generally issued in a series,
with provision that they shall rank part passe in
proportion to their amounts. See Bank v. Atkins,
72 Vt. 33, 47 A. 176; Cavanagh, Mon. Sec. 267;
56 L.J.R.Ch.D. 815; Brice, Ultra Vires (2d Ed.)
279.
A charge in writing on certain property, with
the repayment at a time fixed, of money lent by
a person therein named at a given interest.
Any instrument (other than a covering or trust
deed) which either creates or agrees to create a
debt in favor of one person or corporation, or
several persons or corporations, or acknowledges
such debt. Simonson, Debentures, 5.
A debenture is distinguished (1) from a mortgage which
is an actual transfer of property, (2) from a bond which
does not directly affect property, and (3) from a mere
charge on property which is individualized and does not
form part of a series of similar charges; Cay.Mon.Sec.
267, citing L.R. 10 Ch.D. 530, 681; 15 Ch.D. 465; 21 Ch. D.
762; L.R. 7 App.Cas. 673; Jones, Corp. B. & M. 1 32; 10
H.L.C. 191; L.R. 2 Ch.D. 337.
DEBENTURE INDENTURE. An indenture containing obligations not secured by a mortgage or
other collateral; a key instrument in the process
of long term debt financing for general business
corporations. Its effect is to put the debentureholder in substantially the same practical position
as a bondholder secured by a first mortgage. See
"Business Lawyer" ( April 1966, pp. 678, 679, 680).
DEBENTURE STOCK. A stock or fund representing money borrowed by a company or public
body, in England, and charged on the whole or
part of its property. An issue of stock usually
irredeemable and transferable in any amount, not
including a fraction of a pound.
The terminability and fixity in amount of debentures
being inconvenient to lenders has led to their being in
many cases superseded by debenture stock. Whart. Lex.
Debet esse finis litium. There ought to be an
end of suits; there should be some period put to
litigation. Jenk. Cent. 61.
DEBET ET DETINET. (Lat. He owes and detains.) Words anciently used in the original writ,
(and now, in English, in the plaintiff's declara7
tion,) in an action of debt, where it was brought
by one of the original contracting parties who personally gave the credit, against the other who personally incurred the debt, or against his heirs, if
489
DEBET
they were bound to the payment; as by the obligee against the obligor, by the landlord against
the tenant, etc. The declaration, in such cases,
states that the defendant "owes to," as well as
"detains from," the plaintiff the debt or thing in
question; and hence the action is said to be "in
the debet et detinet." Where the declaration
merely states that the defendant detains the debt,
(as in actions by and against an executor for a
debt due to or from the testator,) the action is
said to be "in the detinet" alone. Fitzh. Nat. Brev.
119, G.; 3 Bl. Comm. 155.
Debita sequuntur personam debitoris. Debts
follow the person of the debtor; that is, they have
no locality, and may be collected wherever the
debtor can be found. 2 Kent, Comm. 429; Story,
Confl. Laws, § 362; Halkers, Max. 13.
DEBITOR. In the civil and old English law. A
debtor.
Debitor non pr a sumitur donare. A debtor is
not presumed to make a gift. Whatever disposition he makes of his property is supposed to be in
satisfaction of his debts. 1 Kames, Eq. 212.
Where a debtor gives money or goods, or grants
land to his creditor, the natural presumption is
that he means to get free from his obligation, and
not to make a present, unless donation be expressed. Ersk. Inst. 3, 3, 93; Dig. 50, 16, 108; 1
P. Wms. 239; Wh. & Tud. L. Cas. Eq. 378.
DEBET ET SOLET. (Lat. He owes and is used
to.) Where a man sues in a writ of right or to
recover any right of which he is for the first time
disseised, as of a suit at a mill or in case of a
writ of quod permittat, he brings his writ in the
debet et solet. Reg. Orig. 144a; Fitzh. Nat. Brev.
122, M.
Debet quis juri subjacere ubi delinquit. One
[every one] ought to be subject to the law [of
the place] where he offends. 3 Inst. 34. This
maxim is taken from Bracton. Bract. fol. 154b.
Finch, Law, 14, 36; Wing. Max. 113; 3 Co. 231;
8 Scott N. R. 567.
Debitorum pactionibus creditorum petitio nec
tolli nec minui potest. 1 Poth. Obl. 108; Broom,
Max. 697, Bart. Max. 115. The rights of creditors
can neither be taken away nor diminished by
agreements among (or of) the debtors.
DEBET SINE BREVE. (Lat. He owes without
declaration filed.) Used in relation to a confession of judgment.
DEBITRIX. A female debtor.
DEBITUM. Something due, or owing, a debt.
Debet sua cuique domus esse perfugium tutissimum. Every man's house should be a perfectly safe refuge. Clason v. Shotwell, 12 Johns.,
N.Y., 31, 54.
Debitum et contractus sunt nullius loci. Debt
and contract are of [belong to] no place; have
no particular locality. 7 Co. 61. The obligation
in these cases is purely personal, and actions to
enforce it may be brought anywhere. 2 Inst. 231;
Story, Confl. Laws, § 362; 1 Smith, Lead. Cas. 340,
363; 7 M. & G. 1019, n.
Debile fundamentum fallit opus. A weak foundation frustrates [or renders vain] the work [built
upon it.] Shep. Touch. 60; Noy, Max. 5, max.
12; Finch, Law, b. 1, ch. 3. When the foundation
fails, all goes to the ground; as, where the cause
of action fails, the action itself must of necessity
fail. Wing. Max. 113, 114, max. 40; Broom, Max.
180.
DEBITUM IN PRIESENTI SOLVENDUM IN FUTURO. A debt or obligation complete when contracted, but of which the performance cannot be
required till some future period.
DEBIT. A sum charged as due or owing. The
term is used in book-keeping to denote the left
page of the ledger, or the charging of a person or
an account with all that is supplied to or paid out
for him or for the subject of the account. Also,
the balance of an account where it is shown that
something remains due to the party keeping the
account.
In industrial insurance nomenclature, a certain
identified territory in which a solicitor operates
by soliciting new business and taking care, as
through collection of the debit accounts, of the
company's patrons for insurance theretofore written; such insurance being usually written in small
amounts on the weekly payment plan. Jones v.
Prudential Ins. Co. of America, 173 Mo.App. 1, 155
S.W. 1106, 1107.
DEBITA FUNDI. L. Lat. In Scotch law. Debts
secured upon land. Ersk. Inst. 4, 1, 11.
DEBITA LAICORUM. L. Lat. In old English
law. Debts of the laity, or of lay persons. Debts
recoverable in the civil courts. Crabb. Eng. Law,
107.
DEBITUM SINE BREVI. L. Lat. Debt without
writ; debt without a declaration. In old practice,
this term denoted an action begun by original bill,
instead of by writ. In modern usage, it is sometimes applies to a debt evidenced by confession of
judgment without suit. The equivalent NormanFrench phrase was "debit sans breve." Both are
abbreviated to d. s. b.
DEBT. A sum of money due by certain and express agreement; as by bond for a determinate
sum, a bill or note, a special bargain, or a rent
reserved on a lease, where the amount is fixed
and specific, and does not depend upon any subsequent valuation to settle it. 3 Bl.Comm. 154;
Hagar v. Reclamation Dist., 111 U.S. 701, 4 S.Ct.
663, 28 L.Ed. 569; Neilson v. Title Guaranty &
Surety Co., 101 Or. 262, 199 P. 948, 951; Shultz v.
Ritterbusch, 38 Okl. 478, 134 P. 961, 968; W. S.
Tyler Co. v. Deutsche Dampfschifffahrts Gesellschaft Hansa, Bremen, Germany, D.C.Ohio, 276 F.
134, 136.
490
DEBT
Ail unconditional promise to pay a fixed sum at a specified time. Lowery v. Fuller, 221 Mo.App. 495, 281 S.W. 968,
972. A contractual obligation to pay in the future for considerations received in the present. Lesser v. Warren Borough,
237 Pa. 501, 85 A. 839, 841, 43 L.R.A.,N.S., 839. The word
"debt" carries with it the requirement of certainty, the
foundation of promise by express contract, and necessarily
i mplies legality. Clinton Mining & Mineral Co. v. Beacon,
C.C.A.Pa., 266 F. 621, 622, 14 A.L.R. 263.
The word "debt," in the definition of a mortgage as a
hypothecation or pledge of property as security for a debt,
means a duty or obligation to pay, for the enforcement of
which an action lies. Stollenwerck v. Marks & Gayle, 188
Ala. 587, 65 So. 1024, 1027, Ann.Cas.1917C, 981; Gibson v.
Hopkins, 80 W.Va. 756, 93 S.E. 826, 827.
Standing alone, the word "debt" is as applicable to a
sum of money which has been promised at a future day, as
to a sum of money now due and payable. To distinguish
between the two, it may be said of the former that it is
a debt owing, and of the latter that it is a debt due. A
sum of money which is certainly and in all events payable
is a debt, without regard to the fact whether it be payable
now or at a future time. A sum payable upon a contingency, however, is not a debt, or does not become a debt until the contingency has happened. People v. Arguello, 37
Cal. 524..
A sum of money arising upon a contract, express or implied. Kimpton v. Bronson, 45 Barb.
N.Y., 618; Johnson v. Garner, D.C.Nev., 233 F.
756, 767. Also, the obligation to pay a sum certain; Indian Refining Co. v. Taylor, 195 Ind. 223,
143 N.E. 682, 689; or a sum which may be ascertained by simple mathematical calculation from
known facts; H. G. Kilbourne Co. v. Standard
Stamp Affixer Co., 216 Mass. 118, 103 N.E. 469,
470; regardless of whether the liability arises by
contract or is implied or imposed by law; State
v. Latham, 136 Tenn. 30, 188 S.W. 534, 535; Lindstrom v. Spicher, 53 N.D. 195, 205 N.W. 231, 233,
41 A.L.R. 968.
A "debt" is a specified sum of money owing to one person from another, including not only the obligation of the
debtor to pay, but the right of the creditor to receive and
enforce payment. Angola Brick & Tile Co. v. Millgrove
School Tp., Steuben County, 73 Ind.App. 557, 127 N.E. 855,
856; Dewey v. Denson, 31 Ga.App. 352, 120 S.E. 805, 807.
A fixed and certain obligation to pay money or
some other valuable thing or things, either in the
present or in the future. Burke v. Boulder Milling & Elevator Co., 77 Colo. 230, 235 P. 574, 575.
In a still more general sense, that which is due
from one person to another, whether money,
goods, or services. Holman v. Hollis, 94 Fla. 614,
114 So. 254, 255; State v. State Board of Examiners, 74 Mont. 1, 238 P. 316, 323.
A "debt" is an obligation arising otherwise than by sentence by a court for a breach of the public peace or for
crime. Ruggles v. State, 120 Md. 553, 87 A. 1080, 1084.
In a broad sense, any duty to respond to another in money, labor, or service; it may even
mean a moral or honorary obligation, unenforceable by legal action. U. S. Sugar Equalization
Board v. P. De Ronde & Co., C.C.A.Del., 7 F.2d
981, 984.
.
and color from accompanying words; Morrow v, Hayes,
226 Mich. 301, 197 N.W. 554, 555.
The word is of large import, including not only debts by
specialty, and debts of record, or judgments (Liberty Mut.
Ins. Co. v. Johnson Shipyards Corporation, C.C.A.N.Y., 6
F.2d 752, 755; Schooley v. Schooley, 184 Iowa 835, 169 N.
W. 56, 57, 11 A.L.R. 110; Bronson v. Syverson, 88 Wash.
264, 152 P. 1039, 1040, L.R.A.1916B, 993; Rosenberg v. Rosenberg, 152 Md. 49, 135 A. 840), but also obligations arising under simple contract, to a very wide extent; and in
its popular sense includes all that is due to a man under
any form of obligation or promise. McCrea v. First Nat.
Bank, 162 Minn. 455, 203 N.W.290; /Etna Ins. Co. v. Robertson, 126 Miss. 387, 88 So. 883, 890.
Synonyms
The term "demand" is of much broader import than
"debt," and embraces rights of action belonging to the
debtor beyond those which could appropriately be called
"debts." In this respect the term "demand" is one of
very extensive import. In re Denny, 2 Hill, N.Y., 223.
Nevertheless, "debt" may be synonymous with "claim";
In re Littleton's Estate, 223 N.Y.S. 470, 479, 129 Misc. 845;
and may include any kind of a just demand. Goldberg v.
Parker, 87 Conn. 99, 87 A. 555, 557, 46 L.R.A.,N.S., 1097,
Ann.Cas.1914C, 1059.
The word dues is equivalent to "debts," or that which is
owing and has a contractual significance. State v. Mortgage Security Co., 154 Minn, 453, 192 N.W. 348, 350.
"Debt" is not exactly synonymous with "duty." A debt
is a legal liability 'to pay a specific sum of money; a duty
is a legal obligation to perform some act. Allen v. Dickson, Minor, Ala., 120.
"Obligation" is a broader term than "debt." Bovee v.
Boyle, 25 Colo.App. 165, 136 P. 467, 469. Every obligation
is not a debt, though every debt is an obligation. Lindstrom v. Spicher, 53 N.D. 195, 205 N.W. 231, 233, 41 A.L.R.
968; In re Moorehead's Estate, 289 Pa. 542, 137 A. 802, 806,
52 A.L.R. 1251.
The words "debt" and "liability" are not necessarily
synonymous. As applied to the pecuniary relations of
parties, liability is a term of broader significance than
debt. Coulter Dry Goods Co. v. Wentworth, 171 Cal. 500,
153 P. 939, 940. Liability is responsibility; the state of
one who is bound in law and justice to do something which
may be enforced by action. This liability may arise from
contracts either express or implied, or in consequence of
torts committed. McElfresh v. Kirkendall, 36 Iowa 226.
"Liability" ordinarily means an obligation which may or
may not ripen into a debt. Irving Bank-Columbia Trust
Co. v. New York Rys. Co., D.C.N.Y., 292 F. 429, 433. Yet
"debt" may sometimes include various kinds of liabilities.
See Allen v. Cosmopolitan Trust Co., 247 Mass. 334, 142 N.
E. 100, 103; Carroll v. Bowling, 151 Md. 59, 133 A. 851, 854.
In General
Active debt. One due to a person. Used in the
civil law.
Ancestral debt. One of an ancestor which the
law compels the heir to pay. Watkins v. Holman,
16 Pet. 25, 10 L.Ed. 873; A. & E. Encyc.
Debt by simple contract. A debt or demand
founded upon a verbal or implied contract, or
upon any written agreement that is not under seal.
Debt by specialty or special contract. A debt
due, or acknowledged to be due, by some deed or
instrument under seal; as a deed of covenant or
sale, a lease reserving rent, or a bond or obligation. 2 Bl.Comm. 465; In re Harris, 101 N.J.Eq.
5, 137 A. 215, 216; Kerr v. Lydecker, 51 Ohio St.
The word "debt" has no fixed legal meaning; Electric
240. 37 N.E. 267, 23 L.R.A. 842; Marriott v. ThompReduction Co. v. Lewellyn, C.C.A.Pa., 11 F.2d 493, 494;
but takes shades of meaning from the occasion of its use
son, Willes, 189.
491
Also, sometimes, an aggregate of separate debts,
or the total sum of the existing claims against a
person or company. Thus we speak of the "national debt," the "bonded debt" of a corporation,
etc.
DEBT
Debt ex mutuo. A species of debt or obligation
mentioned by Glanville and Bracton, and which
arose ex mutuo, out of a certain kind of loan.
Glan. lib. 10, c. 3; Bract. fol. 99. See Mutuum;
Ex Mutuo.
Debt of record. A debt which appears to be due
by the evidence of a court of record, as by a judgment or recognizance. 2 B1.Comm. 465.
Doubtful debt. One of which the payment is uncertain. Clef des Lois Romaines.
In Practice
The name of a common-law action, which lies
to recover a certain specific sum of money, or a
sum that can readily be reduced to a certainty. 3
B1.Comm. 154; 3 Steph.Comm. 461; 1 Tidd, Pr. 3;
Drennen Motor Car Co. v. Evans, 192 Ala. 150, 68
So. 303; Bullard v. Bell, 1 Mass. 243, Fed.Cas.No.
2,121; U. S. v. Claflin, 97 U.S. 546, 24 L.Ed. 1082;
Baum v. Tonkin, 110 Pa. 569, 1 A. 535.
It is thus distinguished from assumpsit, which lies as
well where the sum due is uncertain as where it is certain,
and from covenant, which lies only upon contracts evidenced in a certain manner.
It is said to lie in the debit and detinet, ( when
it is stated that the defendant owes and detains,)
or in the detinet, ( when it is stated merely that
he detains.) Debt in the detinet for goods differs
from detinue, because it is not essential in this
action, as in detinue, that the specific property in
the goods should have been vested in the plaintiff
at the time the action is brought. Dyer, 24b.
Existing debt. See Existing Debt.
Fraudulent debt. A debt created by fraud.
Such a debt implies confidence and deception. It
implies that it arose out of a contract, express
or implied, and that fraudulent practices were employed by the debtor, by which the creditor was
defrauded. Howland v. Carson, 28 Ohio St. 628.
Hypothecary debt. One which is a lien upon an
estate.
Judgment debt. See Judgment Debt.
Legal debts. Those that are recoverable in a
court of common law, as debt on a bill of exchange, a bond, or a simple contract. Rogers v.
Daniell, 8 Allen, Mass., 348; Guild v. Walter, 182
Mass. 225, 65 N.E. 68.
Liquid debt. One which is immediately and unconditionally due.
Mutual debts. Money due on both sides between
two persons. Such debts must be due to and from
same persons in same capacity. Dole v. Chattabriga, 82 N.H. 396, 134 A. 347, 348. Cross debts in
the same capacity and right, and of the same kind
and quality. Lippitt v. Thames Loan & Trust Co.,
88 Conn. 185, 90 A. 369, 374.
Passive debt. A debt upon which, by agreement
between the debtor and creditor, no interest is
payable, as distinguished from active debt; i. e., a
debt upon which interest is payable. In this sense,
the terms "active" and "passive" are applied to
certain debts due from the Spanish government
to Great Britain. Wharton. In another sense of
the wards, a debt is "active" or "passive" according as the person of the creditor or debtor is regarded; a passive debt being that which a man
owes; an active debt that which is owing to him.
In this meaning every debt is both active and
passive,—active as regards the creditor, passive as
regards the debtor.
Privileged debt. One which is to be paid before
others in case a debtor is insolvent.
Public debt. That which is due or owing by the
government of a state or nation. The terms "public debt" and "public securities," used in legislation, are terms generally applied to national or
state obligations and dues, and would rarely, if
ever, be construed to include town debts or obligations; nor would the term "public revenue"
ordinarily be applied to funds arising from town
taxes. Morgan v. Cree, 46 Vt. 773, 14 Am.Rep.
640.
Pure debt. In Scotch law. A debt due now and
unconditionally is so called. It is thus distinguished from a future debt,—payable at a fixed
day in the future,—and a contingent debt, which
will only become due upon the happening of a certain contingency.
Simple contract debt. One where the contract
upon which the obligation arises is neither ascertained by matter of record nor yet by deed or special instrument, but by mere oral evidence the
most simple of any, or by notes unsealed, which
are capable of a more easy proof, and therefore
only better than a verbal promise. 2 Bl.Comm.
466.
Solvent debts. In Pennsylvania, the "solvent
debts" which a city may deduct from its gross indebtedness pursuant to Act April 20, 1874, P.L. 65,
in ascertaining its borrowing capacity, are debts
due it directly, payment of which it can enforce as
one of its quick assets for the liquidation of any of
its obligations. McGuire v. City of Philadelphia,
245 Pa. 287, 91 A. 622, 623.
Specialty debt. See Debt by Specialty or Special
Contract, supra.
DEBTEE. A person to whom a debt is due; a
creditor. 3 Bl.Comm. 18; Plowd. 543. Not used.
DEBTOR. One who owes a debt; he who may be
compelled to pay a claim or demand. Anyone liable on a claim, whether due or to become due.
Cozart v. Barnes, C.C.A.S.C., 240 F. 935, 938.
The term may be used synonymously with "obligor,"
"mortgagor," and the like. McDuffle v. Faulk, 214 Ala.
221, 107 So. 61, 62.
Common Debtor
In Scotch law. A debtor whose effects have been
arrested by several creditors. In regard to these
creditors, he is their common debtor, and by this
term is distinguished in the proceedings that take
place in the competition. Bell
492
DECEIT
Debtor's Act 1869
The statute 32 & 33 Vict. c. 62, abolishing imprisonment for debt in England, and for the punishment of fraudulent debtors. 2 Steph.Comm.
159-164. Not to be confounded with the Bankruptcy Act of 1869. Mozley & Whitley.
Debtor's Summons
In English law. A summons issuing from a
court having jurisdiction in bankruptcy, upon the
creditor proving a liquidated debt of not less than
150, which he has failed to collect after reasonable
effort, stating that if the debtor fail, within one
week , if a trader, and within three weeks if a nontrader, to pay or compound for the sum specified, a
petition may be presented against him praying
that he may be adjudged a bankrupt. Bankruptcy
Act 1869, § 7; Robs.Bankr.; Mozley & Whitley.
DECALOGUE. The ten commandments which,
according to Exodus XX, 1-18, were given by God
to Moses. The Jews called them the "Ten Words,"
hence the name.
DECANATUS. A deanery. Spelman. A company of ten persons. Calvin.
Also (and in this sense sometimes spelled Decania, or Decana), a town or tithing, consisting
originally of ten families of freeholders. Ten
tithings compose a hundred. 1 Bla.Comm. 114;
Medley, Orig.Illus.Eng.Const.Hist.
DECANIA. The office, jurisdiction, territory, or
command of a decanus, or dean. Spelman.
DECANUS.
In Ecclesiastical and Old European Law
An officer having supervision over ten; a dean.
A term applied not only to ecclesiastical, but to
civil and military, officers. Decanus monasticus;
a monastic dean, or dean of a monastery; an officer over ten monks. Decanus in majori ecclesice;
dean of a cathedral church, presiding over ten
prebendaries. Decanus episcopi; a bishop's or
rural dean, presiding over ten clerks or parishes.
Decanus friborgi; dean of a friborg. An officer
among the Saxons who presided over a friborg,
tithing, decennary, or association of ten inhabitants; otherwise called a "tithing man," or "borsholder," his duties being those of an inferior
judicial officer. Du Cange; Spelman, Gloss.;
Calvinus, Lex. Decanus militaris; a military officer having command of ten soldiers. Spelman.
In Roman Law
An officer having the command of a company
or "mess" of ten soldiers. Also an officer at Constantinople having charge of the burial of the
dead. Nov.Jus. 43, 59; Du Cange.
DECAPITATION. The act of beheading. A mode
of capital punishment by cutting off the head.
DECEASE, n. Death; not including civil death,
(see Death.) In re Zeph's Estate, 50 Hun, 523, 3
N.Y.S. 460.
DECEASE, v. To die; to depart life, or from life.
This has always been a common term in Scotch
law. "Gif ane man deceasis." Skene.
DECEASED. A dead person. In re Kite's Estate,
194 Iowa, 129, 187 N.W. 585, 587, 24 A.L.R. 850.
DECEDENT. A deceased person, especially one
who has lately died. Etymologically the word denotes a person who is dying, but it has come to be
used in law as signifying any deceased person,
testate or intestate. In re Zeph's Estate, 50 Hun,
523, 3 N.Y.S. 460.
DECEIT. A fraudulent and cheating misrepresentation, artifice, or device, used by one or more persons to deceive and trick another, who is ignorant
of the true facts, to the prejudice and damage of
the party imposed upon. People v. Chadwick, 143
Cal. 116, 76 P. 884; French v. Vining, 102 Mass.
132, 3 Am.Rep. 440; In re Post, 54 Hun, 634, 7
N.Y.S. 438.
A fraudulent misrepresentation or contrivance,
by which one man deceives another, who has no
means of detecting the fraud, to the injury and
damage of the latter.
A subtle trick or device, whereunto may be referred all
manner of craft and collusion used to deceive and defraud
another by any means whatsoever, which hath no other
or more proper name than deceit to distinguish the offense.
[ West Symb. § 68]; Jacob.
A "deceit" is either : (1) The suggestion, as a fact, of
that which is not true, by one who does not believe it to be
true; (2) the assertion, as a fact, of that which is not
true, by one who has no reasonable ground for believing it
to be true; (3) the suppression of a fact, by one who is
bound to disclose it, or who gives information of other
facts which are likely to mislead for want of communication of that fact; or (4) a promise, made without any intention of performing it. Civ.Code Cal. § 1710; Civ.Code
S.D. § 1293 (Comp.Laws 1929, § 797).
To constitute "deceit," the statement must be untrue,
made with knowledge of its falsity or with reckless and
conscious ignorance thereof, especially if parties are not
on equal terms, made with intent that plaintiff act thereon or in a manner apparently fitted to induce him to act
thereon, - and plaintiff must act in reliance on the statement in the manner contemplated, or manifestly probable,
to his injury. Corley Co. v. Griggs, 192 N.C. 171, 134 S.E.
406, 407; Pain v. Kiel, C.C.A.Mo., 288 F. 527, 529. See,
also, Crossman v. Bacon & Robinson Co., 119 Me. 105, 109
A. 487, 489; Alpine v. Friend Bros., 244 Mass. 164, 138 N.
E. 553, 554; Hood v. Wood, 61 Okl. 294, 161 P. 210, 213.
The essential elements of "deceit" are representation,
falsity, scienter, deception, and injury. Ochs v. Woods,
221 N.Y. 335, 117 N.E. 305, 306.
In Old English Law
The name of an original writ, and the action
founded on it, which lay to recover damages for
any injury committed deceitfully, either in the
name of another, (as by bringing an action in another's name, and then suffering a nonsuit, whereby the plaintiff became liable to costs,) or by a
fraudulent warranty of goods, or other personal
injury committed contrary to good faith and honesty. Reg.Orig. 112-116; Fitzh.Nat.Brev. 95, E,
98.
Also the name of a judicial writ which formerly
lay to recover lands which had been lost by default by the tenant in a real action, in consequence
493
DECEIT
of his not having been summoned by the sheriff,
or by the collusion of his attorney. Rosc.Real
Act. 136; 3 B1.Comm. 166.
Decet tamen principem servare leges quibus ipse
servatus est. It behooves, indeed, the prince to
keep the laws by which he himself is preserved.
In General
Deceitful plea. A sham plea; one alleging as
facts things which are obviously false on the face
of the plea. Gray v. Gidiere, 4 Strob., S.C., 443.
DECIDE. To "decide" includes the power and
right to deliberate, to weigh the reasons for and
against, to see which preponderate, and to be governed by that preponderance. Darden v. Lines,
2 Fla. 571; In re Milford & M. R. Co., 68 N.H.
570, 36 A. 545.
DECEM TALES. (Ten such; or ten tales, jurors.)
In practice. The name of a writ which issues in
England, where, on a trial at bar, ten jurors are
necessary to make up a full panel, commanding
the sheriff to summon the requisite number. 3
B1.Comm. 364; Reg.Jud. 30b; 3 Steph.Comm. 602.
DECIES TANTUM (Ten times as much). The
name of an ancient writ that was used against a
juror who had taken a bribe in money for his verdict. The injured party could thus recover ten
times the amount of the bribe.
DECEMVIRI LITIBUS JUDICANDIS. Lat. In
the Roman law. Ten persons (five senators and
five equites) who acted as the council or assistants
of the praetor, when he decided on matters of law.
Hallifax, Civil Law, b. 3, c. 8. According to others, they were themselves judges, appointed by
Augustus to act in certain cases. Calvinus, Lex.;
Anthon, Rom.Ant.
DECIMZE. In ecclesiastical law. Tenths, or
tithes. The tenth part of the annual profit of each
living, payable formerly to the pope. There were
several valuations made of these livings at different times. The decimce (tenths) were appropriated to the crown, and a new valuation established, by 26 Hen. VIII., c. 3. 1 Bl.Comm. 284.
See Tithes.
DECENCY. Propriety of action, speech, dress,
etc. Universal Film Mfg. Co. v. Bell, 100 Misc.
281, 167 N.Y.S. 124, 128.
Decimw debentur paroche. Tithes are due to
the parish priest.
DECENNA. In old English law. A tithing or
decennary; the precinct of a frank-pledge; consisting of ten freeholders with their families.
Spelman.
DECENNARIUS. Lat. One who held one-half a
virgate of land. Du Cange. One of the ten freeholders in a decennary. Id.; Calvin. Decennier.
One of the decennarii, or ten freeholders making
up a tithing. Spelman; Du Cange, Decenna; 1
Bla.Comm. 114.
DECENNARY. A tithing, composed of ten neigh.
boring families. 1 Reeve, Eng.Law, 13; 1 131.
Comm. 114.
King Alfred, for the better preservation of the peace,
divided England into counties, the counties into hundreds,
and the hundreds into tithings or deceRnaries : the inhabitants whereof, living together, were sureties or
pledges for each other's good behavior.
DECEPTION. The act of deceiving; intentional
misleading by falsehood spoken or acted. Smith
v. State, 13 Ala.App. 399, 69 So. 402, 403.
DECEPTIONE. A writ that lieth properly against
him that deceitfully doth anything in the name of
another, for one that receiveth damage or hurt
thereby. It is either original or judicial. Fitzh.
N .B.
Deceptis non decipientibus, jura subveniunt. The
laws help persons who are deceived, not those
deceiving. Tray. Lat. Max. 149.
DECERN. In Scotch law. To decree. "Decernit
and ordainit." 1 How. State Tr. 927. "Decerns."
ShaW, 16.
DECESSUS. In the civil and old English law.
Death; departure.
Decimce de decimatis solvi non debent. Tithes
are not to be paid from that which is given for
tithes.
Decimx de jure divino et canonica institutione
pertinent ad personam. Dal. 50. Tithes belong to
the parson by divine right and canonical institution.
Decimm non debent solvi, ubi non est annna renovatio; et ex annuatis renovantibus simui semei.
Cro. Jac. 42. Tithes ought not to be paid where
there is not an annual renovation, and from annual
renovations once only.
DECIMATION. The punishing of every tenth
soldier by lot, for mutiny or other failure of duty.
This was termed "decimatio legionis" by the Romans. Sometimes only the twentieth man was
punished, (vicesimatio,) or the hundredth, (cen-
tesimatio.)
DECIME. A French coin of the value of the
tenth part of a franc, or nearly two cents.
DECINERS. Those that had the oversight and
check of ten friburgs for the maintenance of the
king's peace. Cunningham.
Decipi quam fallere est tutius. It is safer to be
deceived than to deceive. Lofft, 396.
DECISION. A popular rather than technical or
legal word; a comprehensive term having no fixed,
legal meaning. It may be employed as referring
to ministerial acts as well as to those that are judicial or of a judicial character, Palmer Pub. Co.
v. Smith, 130 Tex. 346, 109 S.W.2d 158, 159; such
as decision of architects, Independent School
Dist. No. 35, St. Louis County, v. A. Hedenberg
& Co., 214 Minn. 82, 7 N.W.2d 511, 515; of county
commissioners, Houser v. Olmstead, 57 S.D. 41,
494
DECLARATION
230 N.W. 224, 225; or of industrial commission,
Rosenquist v. O'Neil & Preston, 187 Minn. 375,
245 N.W. 621.
A judgment or decree pronounced by a court
in settlement of a controversy submitted to it and
by way of authoritative answer to the questions
raised before it. Adams v. Railroad Co., 77 Miss.
194, 24 So. 317, 60 L.R.A. 33; Board of Education
v. State, 7 Kan.App. 620, 52 P. 466.
A judgment given by a competent' tribunal.
Eastman Kodak Co. v. Richards, 123 Misc. 83, 204
N.Y.S. 246, 248.
The findings of fact and conclusions of law
which must be in writing and filed with the clerk.
Stewart Mining Co. v. Ontario Mining Co., 23
Idaho, 724, 132 P. 787, 791; Wilcox v. Sway, 69
Cal.App.2d 141, 160 P.2d 154, 156.
A finding, as by a court, upon either a question of law or
fact arising in a case. Vermont Marble Co. v. Eastman, 91
Vt. 425, 101 A. 151, 160. The court's finding or findings.
Volderauer v. State, 195 Ind. 415, 143 N.E. 674, 676;
Chambers v. Farnham, 39 Cal.App. 17, 179 P. 423, 424.
A determination of a judicial or quasi judicial
nature. Codington County v. Board of Com'rs of
Codington County, 51 S.D. 131, 212 N.W. 626, 628.
Statement by trial justice after trial before court without jury does not constitute "decision." Shaul v. Fidelity
& Deposit Co. of Maryland, 131 Misc. 401, 227 N.Y.S. 163,
1.68. A "decision" involves reaching a conclusion. Lambros v. Young, 145 F.2d 341, 343, 79 U.S.App.D.C. 247.
The term is broad enough to cover both final judgments
and interlocutory orders. Stout v. Stout, 68 Ind.App. 278,
131 N.E. 245, 246. And though sometimes limited to the
sense of judgment; Industrial Commission of Ohio v. Musselli, 102 Ohio St. 10, 130 N.E. 32, 33; the term is at other
times understood as meaning simply the first step leading
to a judgment; Dorney v. Ives, 36 R.I. 276, 90 A. 164, 165;
or as an order for judgment; Collins v. Belland, 37 Cal.
App. 139, 173 P. 601, 602. The word may also include various rulings, as well as orders. U. S. v. Thompson, 251 U.
S. 407, 40 S.Ct. 289, 291, 64 L.Ed. 333; Marr v. Marr, 194
Cal. 332, 228 P. 534, 535.
The words "decision" and judgment" may be used interchangeably, but in the abstract there is a shade of difference between the two. Smith v. State, 196 Ga. 595, 27
S.E.2d 369, 373.
"Decision" is not necessarily synonymous with "opinion." A decision of the court is its judgment; the opinion is the reasons given for that judgment, or the expression of the views of the judge. Craig v. Bennett, 158 Ind.
9, 62 N.E. 273; But the two words are sometimes used
interchangeably. Pierce v. State, 109 Ind. 535, 10 N.E. 302;
Keller v. Summers, 262 Mo. 324, 171 S.W. 336, 337.
The French lawyers call the opinions which they give
on questions propounded to them, decisions. See Inst. 1,
2, 8; Dig. 1, 2, 2.
DECISIVE, or DECISORY, OATH. See Oath.
DECISION ON MERITS. A decision determining
the validity of a written instrument or passing on
a controversy with respect to the interpretation
thereof which bars subsequent suit on same cause
of action. Eulenberg v. Torley's Inc., 56 Cal.App.
2d 653, 133 P.2d 15, 17.
DECLARANT. A person who makes a declaration.
DECLARATION.
In Pleading
The first of the pleadings on the part of the
plaintiff in an action at law, being a formal and
methodical specification of the facts and circumstances constituting his cause of action. It commonly comprises several sections or divisions,
called "counts," and its formal parts follow each
other in this order: Title, venue, commencement,
cause of action, counts, conclusion. The declaration, at common law, answers to the "libel" in ecclesiastical and admiralty law, the "bill" in equity,
the "petition" in civil law, the "complaint" in
code pleading, and the "count" in real actions. U.
S. v. Ambrose, 108 U.S. 336, 2 S.Ct. 682, 27 L.Ed.
746; Railway Co. v. Nugent, 86 Md. 349, 38 A.
779, 39 L.R.A. 161; Dixon v. Sturgeon, 6 Serg.
& R. (Pa.) 28; 1 Chit.Pl. 248; Co.Litt. 17 a, 303 a;
Bacon, Abr. Pleas ( B) ; Comyns, Dig. Pleader,
C, 7; Lawes, Pl. 35; Steph.Pl. 36; Leslie v. Mendelson, 302 Mich. 95, 4 N.W.2d 481, 484.
It may be general or special: for example, in debt on a
bond, a declaration counting on the penal part only is general; one which sets out both the bond and the condition
and assigns the breach is special; Gould, Pl. c. 4, § 50.
In Evidence
An unsworn statement or narration of facts
made by a party to the transaction, or by one who
has an interest in the existence of the facts recounted. Also, similar statements made by a person since deceased, which are admissible in evidence in some cases, contrary to the general rule,
e. g., "dying declarations" (see that subtitle, in-
fra).
In Practice
The declaration or declaratory part of a judgment, decree, or order is that part which gives the
decision or opinion of the court on the question
of law in the case. Thus, in an action raising a
question as to the construction of a will, the judgment or order declares that, according to the true
construction of the will, the plaintiff has become
entitled to the residue of the testator's estate, or
the like. Sweet.
In Scotch Practice
The statement of a criminal or prisoner, taken
before a magistrate. 2 Alis. Crim. Pr. 555; 2
Hume 328; Arkl. Just. 70; Paterson, Comp. §1
952, 970.
In General
A "declaration" is a statement made out of
court. Dawson v. Davis, 125 Conn. 330, 5 A.2d
703, 704.
Declaration against interest. Such declarations
are evidence of the fact declared, and are therefore distinct from admissions, which amount to a
waiver of proof. Jelser v. White, 183 N.C. 126,
110 S.E. 849, 850. They are statements which,
when made, conflict with the pecuniary interest
of the person making them, who need not have
been a party, privy or witness to the suit in which
they are offered. Elliotte v. Lavier, 299 Mich.
373, 300 N.W. 116, 118.
Declaration in chief. A declaration for the principal cause of action. 1 Tidd, Pr. 419.
495
DECLARATION
Declaration of dividend. The act of a corporation in setting aside a portion of the net or surplus proceeds for distribution among the stockholders according to their respective interests.
First Nat. Bank & Trust Co. v. Glenn, D.C.Ky.,
36 F.Supp. 552, 554. See, also, Dividend.
Declaration of homestead. A creature of, and its
validity depends upon, compliance with homestead statute. It is merely an act of the owner
whereby he avails himself of, and secures, a right
or privilege given him by statute; it is neither
a conveyance nor a contract, and there is no transfer of, or change in, title, nor any agreement of
transfer or change. U. S. Fidelity & Guaranty Co.
v, Adloway, 173 Wash. 404, 23 P.2d 408. See, also,
Homestead.
Declaration of independence. A formal declaration or announcement, promulgated July 4, 1776,
by the congress of the United States of America,
in the name and behalf of the people of the colonies, asserting and proclaiming their independence of the British crown, vindicating their pretensions to political autonomy, and anouncing themselves to the world as a free and independent nation.
Declaration of intention. A declaration made
by an alien, as a preliminary to naturalization, before a court of record, to the effect that it is his
intention in good faith to become a citizen of the
United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate,
state, or sovereignty whereof at the time he may
be a citizen or subject. 8 U.S.C.A. § 731.
Declaration of right. See Bill of Rights.
Declaration of trust. The act by which the person who holds the legal title to property or an estate acknowledges and declares that he holds the
same in trust to the use of another person or for
certain specified purposes. The name is also used
to designate the deed or other writing embodying
such a declaration. Griffith v. Maxfield, 66 Ark.
513, 51 S.W. 832. See Baker v. Baker, 123 Md.
32, 90 A. 776, 779 (bank deposit) ; Del Giorgio v.
Powers, 27 Ca1.App.2d 668, 81 P.2d 1006, 1012
( mining claim) ; Bingen v. First Trust Co. of
St. Paul, C.C.A.Minn., 103 F.2d 260, 264 (letter).
Declaration of war. A public and formal proclamation by a nation, through its executive or legislative department, that a state of war exists between itself and another nation, and forbidding
all persons to aid or assist the enemy.
An act of Congress is necessary to the commencement of
a foreign war and is in itself a "declaration" and fixes
the date of the war. West v. Palmetto State Life Ins. Co.,
202 S.C. 422, 25 S.E.2d 475, 477, 145 A.L.R. 1461; Rosenau
v. Idaho Mut. Ben. Ass'n, 65 Idaho 408, 145 P.2d 227, 230.
Dying declarations. Statements made by a person who is lying at the point of death, and is conscious of his approaching dissolution, in reference
to the manner in which he received the injuries
of which he is dying, or other immediate cause of
his death, and in reference to the person who inflicted such injuries or the connection with such
injuries of a person who is charged or suspected
of having committed them; which statements are
admissible in evidence in a trial for homicide (and
occasionally, at least in some jurisdictions, in other cases) where the killing of the declarant is
the crime charged to the defendant. Shepard v.
U. S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196;
See generally Simons v. People, 150 Ill. 66, 36 N.E.
1019; Frier v. State, 92 Fla. 241, 109 So. 334, 335;
Lucas v. Commonwealth, 153 Ky. 424, 155 S.W.
721, 722; Edwards v. State, 113 Neb. 698, 204 N.W.
780, 783; People v. Selknes, 309 Ill. 113, 140 N.E.
852, 854. Also Barsch v. Hammond, 110 Colo. 441,
135 P.2d 519, 521 (motorist); Waller v. Commonwealth, 178 Va. 294, 16 S.E.2d 808, 813 (shooting) ;
State v. Brown, 209 Minn. 478, 296 N.W. 582, 586
(abortion).
Statements made by deceased while on operating table
were inadmissible as "dying declarations" where there was
no statement by deceased himself that he knew that death
was approaching. People v. Hall, 260 App.Div. 421, 22 N.Y.
S.2d 973, 976.
Self-serving declaration. One made by a party
in his own interest at some time and place out of
court;-not including testimony which he gives
as witness at the trial. Brosnan v. Boggs, 101
Or. 472, 198 P. 890, 892.
DECLARATION OF LONDON. A declaration
concerning the laws of naval war, agreed upon
February 26, 1909, by the powers assembled at
the London Naval Conference.
The preamble states that the Declaration was made in
view of the desirability of an agreement upon the rules to
be applied by the International Prize Court established by
the Second Hague Conference. A preliminary provision
states that it is agreed that the rules adopted "correspond
in substance with the generally recognized principles of
international law." The subjects dealt with by the Declaration include Blockade, Contraband, Unneutral Service,
Destruction of Neutral Prizes, Transfer to Neutral Flag,
Enemy Character, Convoy, Search, and Compensation.
Higgins, 538-613.
DECLARATION OF PARIS. The name given to
an agreement announcing four important rules
of international law effected between the principal
European powers at the Congress of Paris in
1856. These rules are: (1) Privateering is and
remains abolished; (2) the neutral flag covers
enemy's goods, except contraband of war; (3)
neutral goods, except contraband of war, are not
liable to confiscation under a hostile flag; (4)
blockades, to be binding, must be effective.
DECLARATION OF ST. PETERSBURG. A dec.
laration made at St. Petersburg in 1868 on behalf
of certain of the powers in relation to the prohibition of the use of explosive bullets in time of war,
DECLARATOR. In Scotch law. An action
whereby it is sought to have some right of property, or of status, or other right judicially ascertained and declared. Bell.
DECLARATOR OF TRUST. An action resorted
to against a trustee who holds property upon titles ex facie for his own benefit. Bell
496
DECOLLATIO
DECLARATORY. Explanatory; designed to fix
or elucidate what before was uncertain or doubtful.
DECLARATORY ACTION. In Scotch law. An
action in which the right of the pursuer (or plaintiff) is craved to be declared, but nothing claimed
to be done by the defender (defendant.) Ersk.
Inst. 5, 1, 46. Otherwise called an "action of declarator."
This also is one of the words customarily used in the
promise given by a person who is affirmed as a witness,"sincerely and truly declare and affirm." Hence, to make
a positive and solemn asseveration. Bassett v. Denn, 17 N.
J. Law, 433.
DECLARATORY DECREE. In practice. A binding declaration of right in equity without consequential relief.
DECLARATORY JUDGMENT. One which simply declares the rights of the parties or expresses
the opinion of the court on a question of law, without ordering anything to be done. Its distinctive
characteristics are that no executory process follows as of course, nor is it necessary that an actual wrong, giving rise to action for damages,
should have been done, or be immediately threatened. Great Lakes Dredge & Dock Co. v. Huffman, La., 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407;
Petition of Kariher, 284 Pa. 455, 131 A. 265, 268;
Village of Bay v. Gelvick, 58 Ohio App. 51, 15 N.E.
2d 786, 791. It must deal with real dispute of real
fact. Rauh v. Fletcher Savings & Trust Co., 207
Ind. 638, 194 N.E. 334, 335. It is distinguished
from other actions in that it does not seek execution or performance from the defendant or opposing party. Brindley v. Meara, Ind., 209 Ind.
144, 198 N.E. 301, 101 A.L.R. 682; Gutensohn v.
Kansas City Southern Ry. Co., C.C.A.Mo., 140 F.
2d 950.
DECLARATORY PART OF A LAW. That which
clearly defines rights to be observed and wrongs
to be eschewed.
DECLARATORY STATUTE. One enacted for
the purpose of removing doubts or putting an end
to conflicting decisions in regard to what the law
is in relation to a particular matter. It may either
be expressive of the common Iaw, 1 Bl. Comm. 86;
Gray v. Bennett, 3 Mete., Mass., 527; In re Ungaro's Will, 88 N.J.Eq, 25, 102 A. 244, 246, or may
declare what shall be taken to be the true meaning and intention of a previous statute, though
in the latter case such enactments are more commonly called "expository statutes." McMahon v.
Maddox, Tex.Civ.App., 297 S.W. 310, 312.
A statute enacted to put an end to a doubt as
to what is the common law, or the meaning of another statute, and which declares what it is and
ever has been. Nelson v. Sandkamp, 227 Minn.
177, 34 N.W.2d 640, 642, 5 A.L.R.2d 1136.
DECLARE. To make known, manifest, or clear.
Lasier v. Wright, 304 Ill. 130, 136 N.E. 545, 552,
28 A.L.R. 674. To signify, to show in any manner either by words or acts. Edwardson v. Gerwien, 41 N.D. 506, 171 N.W. 101, 102. To publish;
to utter; to announce clearly some opinion or resolution. Knecht v. Ins. Co., 90 Pa. 121, 35 Am.
Rep. 641. As to "declare" a dividend. A. T. Jergins Trust v. Rogan, D.C.Cal., 40 F.Supp. 40, 42.
Black's Law Dictionary Revised 4th Ed.-32
To allege or affirm. State v. Hostetter, Mo.Sup.,
222 S.W. 750, 754. To solemnly assert a fact before witnesses, e. g., where a testator declares a
paper signed by him to be his last will and testament. Lane v. Lane, 95 N.Y. 498.
With reference to pleadings, it means to draw
up, serve, and file a declaration; e. g., a "rule to
declare." Also to allege in a declaration as a
ground or cause of action; as "he declares upon
a promissory note."
DECLINATION. In Scotch law. A plea to the
jurisdiction, on the ground that the judge is interested in the suit.
DECLINATOIRES. In French law. Pleas to the
jurisdiction of the court; also of lis pendens, and
of connexite, (q. v.).
DECLINATORY EXCEPTIONS are such dilatory
exceptions as merely decline the jurisdiction of
the judge before whom the action is brought..
Code Proc. La. 334. A plea to the jurisdiction rationae personae. Diamond T. Motor Trucks V.
Heck, La.App., 13 So.2d 512, 514.
DECLINATORY PLEA. In English practice.
The plea of sanctuary, or of benefit of clergy, before trial or conviction. 2 Hale, P.C. 236; 4 Bl,
Comm. 333. Now abolished. 6 & 7 Geo. IV, c. 28,
§ 6; Mozl. & W. Diet.; 4 Steph. Comm. 400, note;
Id. 436, note.
DECLINATURE. In Scotch practice, An objec,
tion to the jurisdiction of a judge. Bell.
DECLINE. A failing process, a tendency to a
worse state; to become gradually impaired; a,
falling off or downward tendency. Exum v. Laub,
C.C.A.Tex., 87 F.2d 73, 74; Buffalo County v.
Phelps County, 129 Neb. 268, 261 N.W. 360.
DECOCTION. The act of boiling a substance in
water, for extracting its virtues. The operation
of boiling certain ingredients in a fluid for the
purpose of extracting the parts soluble at that
temperature. Also the liquor in which a substance
has been boiled; water impregnated with the
principles of any animal or vegetable substance
boiled in it. Webster; Sykes v. Magone, C.C.N.Y.,
38 F. 497.
In an indictment "decoction" and "Infusion" are ejusdem.
generic; and if one is alleged to have been administered,
instead of the other, the variance is immaterial. 3 Camp.
74.
DECOCTOR. In the Roman law. A bankrupt;
a spendthrift; a squanderer of public funds. Calvin.
DECOLLATIO. In old English and Scotch law.
Decollation; the punishment of beheading. Fleta,
lib. 1, c. 21, § 6.
497
DECOMPOSED
DECOMPOSED. A state of decomposition.
United States v. 1851 Cartons, More or Less, etc.,
D.C.Colo., 55 F.Supp. 343, 346; A. 0. Anderson &
Co. v. U. S., C.C.A.Wash., 284 F. 542, 544. A separation into components; specifically, decay or
dissolution. In re Vetter, Cust. & Pat.App., 96
F.2d 999, 1000.
DECONFES. In French law. A name formerly
given to those persons who died without confession, whether they refused to confess or whether
they were criminals to whom the sacrament was
refused. Droit de -Canon, per M. l'Abbe Andre;
Dupin, Gloss. to Loisel's Institutes.
DECORATE. To beautify. To do something, as
to a house as such, to improve the condition of
the house, or of a room. Grasell v. Brodhead,
175 App.Div. 874, 162 N.Y.S. 421, 423. The addition of something becoming or beautiful. Upsal
Street Realty Co. v. Rubin, 326 Pa. 327, 192 A.
481, 483.
DECORATOR. One whose business is the decoration of dwellings or public edifices. Grasell v.
Brodhead, 175 App.Div. 874, 162 N.Y.S. 421, 423.
DECOY. To inveigle, entice, tempt, or lure; as,
to decoy a person within the jurisdiction of a court
so that he may be served with process, or to decoy
a fugitive criminal to a place where he may be arrested without extradition papers, or to decoy one
away from his place of residence for the purpose
of kidnapping him and as a part of that act. In
all these uses, the word implies enticement or luring by means of some fraud, trick, or temptation,
but excludes the idea of force. Eberling v. State,
136 Ind. 117, 35 N.E. 1023; John v. State, 44 P.
51, 6 Wyo. 203.
Also, a "decoy pond." See that title, infra.
DECOY LETTER. A letter prepared and mailed
for the purpose of detecting a criminal, particularly one who is perpetrating frauds upon the postal or revenue laws. U. S. v. Whittier, 5 Dill. 39,
Fed, Cas. No. 16,688.
DECOY POND. A pond used for the breeding
and maintenance of water-fowl. Keeble v. Hickeringshall, 3 Salk. 10; 11 Mod. 74, 130; Holt 14;
11 East 571.
DECREE,
In Practice
The judgment of a court of equity or admiralty, answering for most purposes to the
judgment of a court of common law. A decree in equity is a sentence or order of the
court, pronounced on hearing and understanding
all the points in issue, and determining the rights
of all the parties to the suit, according to equity
and good conscience. 2 Daniell, Ch.Pr. 986; Wooster v. Handy, C.C.N.Y., 23 F. 49, 56; Motion Picture Patents Co. v. Universal Film Mfg. Co., D.C.,
N.Y., 232 F. 263, 265; Bull v. International Power
Co., 84 N.J.Eq. 209, 93 A. 86, 88; Alford v. Leonard, 88 Fla. 532, 102 So. 885, 890. It is a declaration of the court announcing the legal consequenc-
es of the facts found. Robertson v. Talmadge,
Tex.Civ.App., 174 S.W. 627, 629.
A decree, as distinguished from an order, is final, and is
made at the hearing of the cause, whereas an order is interlocutory, and is made on motion or petition. Wherever
an order may, in a certain event resulting from the direction contained in the order, lead to the termination of the
suit in like manner as a decree made at the hearing, it is
called a "decretal order." Brown.
A judgment at law, as distinguished from a decree in
equity, was either simply for the plaintiff or for the defendant. There could be no qualifications or modifications.
But such a judgment does not always touch the true justice
of the cause or put the parties in the position they ought
to occupy. This result was attained by the decree of a
court of equity which could be so moulded, or the execution of which could be so controlled and suspended, that
the relative duties and rights of the parties could be secured and enforced. Bisph.Eq. § 7.
The words "judgment" and "decree," however, are often
used synonymously; Finnell v. Finnell, 113 Okl. 269, 230
P. 912, 913; especially now that the Codes have abolished
the distinction between law and equity; Henderson v.
Arkansas, 71 Okl. 253, 176 P. 751, 753. But of the two
terms, "judgment" is the more • comprehensive, and includes "decree." Coleman v. Los Angeles County, 180 Cal.
714, 182 P. 440, 441.
Decision of an administrative board though based on
facts adduced on a hearing, Dal Maso v. Board of Com'rs
of Prince George's County, 182 Md. 200, 34 A.2d 464, 466, or
rescript from reviewing court are not decrees. City of
Boston v. Santosuosso, 308 Mass. 189, 31 N.E.2d 564, 568.
Classification
Decrees in equity are either final or interlocutory. A final decree is one which fully and finally
disposes of the whole litigation, determining all
questions raised by the case, and leaving nothing
that requires further judicial action. Sawyer v.
White, 125 Me. 206, 132 A. 421, 422; Draper Corporation v. Stafford Co., C.C.A.Mass., 255 F. 554, 555;
Burgin v. Sugg, 210 Ala. 142, 97 So. 216, 2177 An
interlocutory decree is a provisional or preliminary decree, which is not final and does not determine the suit, but directs some further proceedings preparatory to the final decree. It is a decree
pronounced for the purpose of ascertaining matter of law or fact preparatory to a final decree. 1
Barb. Ch. Pr. 326, 327; Wooster v. Handy, C.C.
N.Y., 23 F. 49, 56; Beebe v. Russell, 19 How. 283,
15 L.Ed. 668; Cornely v. Marckwald, 131 U.S. 159,
9 S.Ct. 744, 33 L.Ed. 117. Where something more
than the ministerial execution of the decree as
rendered is left to be clone, the decree is interlocutory, and not final, even though it settles the equities of the bill. Lodge v. Twell, 135 U.S. 232, 10
S.Ct. 745, 34 L.Ed. 153.. The difficulty of exact
definition is mentioned in McGourkey v. Ry. Co.,
146 U.S. 536, 13 S.Ct. 170, 36 L.Ed. 1079. See, also,
Keystone Manganese & Iron Co. v. Martin, 132 U.
S. 91, 10 S.Ct. 32, 33 L.Ed. 275; Leyhe v. McNamara, Tex.Com.App., 243 S.W. 1074, 1076.
In French Law
Certain acts of the Legislature or of the sovereign which have the force of law are called "decrees"; as the Berlin and Milan decrees.
In Scotch Law
A final judgment or sentence of court by which
the question at issue between the parties is decided.
498
DECREPIT
Decree of modification. In Scotch law. A decree of the teind court modifying or fixing a
stipend.
In General
Consent decree. One entered by consent of the
parties; it is not properly a judicial sentence, but
is in the nature of a solemn contract or agreement
of the parties, made under the sanction of the
court, and in effect an admission by them that the
decree is a just determination of their rights upon
the real facts of the case, if such facts had been
proved. Allen v. Richardson, 9 Rich.Eq., S.C., 53;
Schmidt v. Mining Co., 28 Or. 9, 40 P. 1014, 52 Am.
St.Rep. 759; Hodgson v. Vroom, C.C.A.N.Y., 266
F. 267, 268; Barnes v. American Fertilizer Co.,
144 Va. 692, 130 S.E. 902, 911. It binds only the
consenting parties; Myllius v. Smith, 53 W.Va.
173, 44 S.E. 542; and is not binding upon the
court; Ex parte Loung June, D.C.N.Y., 160 F.
251, 259. Parties thereto must be competent to
contract. Consaer v. Wisniewski, 293 Ill.App.
529, 13 N.E.2d 93, 94.
Decree of nullity. One entered in a suit for the
annulment of a marriage, and adjudging the marriage to have been null and void ab initio. See
Nullity.
Decree of registration. In Scotch law. A proceeding giving immediate execution to the creditor; similar to a warrant of attorney to confess
judgment.
Decree pro confesso. One entered in a court of
equity in favor of the complainant where the defendant has made no answer to the bill and its
allegations are consequently taken "as confessed."
Ohio Cent. R. Co. v. Central Trust Co., 133 U.S.
83, 10 S.Ct. 235, 33 L.Ed. 561; Equity Rules 16,
17, see Fed.Rules Civ.Proc. rules 6, 55, 28 U.S.C.A.;
Freem. Judg. § 11; 1 Dan.Ch.Pr. 5th Am. ed.
517, n. It is merely an admission of the allegations of the bill well pleaded. Remington v. Barney, 35 R.I. 267, 86 A. 891, 892; Majure v. Johnson, 192 Miss. 810, 7 So.2d 545, 549.
Decree dative. In Scotch law. An order of a
probate court appointing an administrator.
Decree nisi. A provisional decree, which will be
made absolute on motion unless cause be shown
against it. In English practice, it is the order
made by the court for divorce, on satisfactory
proof being given in support of a petition for dissolution of marriage; it remains imperfect for
at least six months, (which period may be shortened by the court down to three,) and then, unless
sufficient cause be shown, it is made absolute on
motion, and the dissolution takes effect, subject
to appeal. Wharton. It effects a conditional divorce, becoming absolute only upon the happening of a prescribed contingency. Grant v. Grant,
84 N.J.Eq. 81, 92 A. 791, 793.
Deficiency decree. In a mortgage foreclosure
suit, a decree for the balance of the indebtedness
after applying the proceeds of a sale of the mortgaged property to such indebtedness. Commercial
Bank of Ocala v. First Nat. Bank, 80 Fla. 685, 87
So. 315, 316.
For "Execution of decree," see Execution of
Judgment or Decree.
DECREET. In Scotch law. The final judgment
or sentence of a court.
DECREET ABSOLVITOR. A decree dismissing a
claim, or acquitting a defendant. 2 Kames, Eq.
367.
Decree of constitution. In Scotch practice. A
decree by which a debt is ascertained. Bell. In
technical language, a decree which is requisite to
found a title in the person of the creditor, whether
that necessity arises from the death of the debtor
or of the creditor. Id.
DECREET ARBITRAL. An award of arbitrators.
1 Kames, Eq. 312, 313; 2 Kames, Eq. 367.
DECREET COGNITION'S CAUSA. When a creditor brings his action against the heir of his debtor
in order to constitute the debt against him and attach the lands, and the heir appears and renounces
the succession, the court then pronounces a decree cognitionis causd. Bell.
Decree of distribution. An instrument by which
heirs receive property of a deceased; it is a final
determination of the parties to a proceeding.
Fischer v. Dolwig, 29 N.D. 561, 151 N:W. 431, 432;
In re Bradford's Estate, 128 N.J.Eq. 372, 16 A.2d
268, 270.
Decree of forthcoming. In Scotch law. A decree made after an arrestment (q. v.) ordering
the debt to be paid or the effects of the debtor to
be delivered to the arresting creditor. Bell.
Decree of insolvency. One entered in a probate
court, declaring the estate in question to be insolvent, that is, that the assets are not sufficient
to pay the debts in full. Bush v. Coleman, 121 Ala.
548, 25 So. 569; Walker v. Newton, 85 Me. 458,
27 A. 347.
Decree of locality. In Scotch law. The decree
of a teind court allocating stipend upon different
heritors. It is equivalent to the apportionment of
a tithe rent-charge.
DECREET CONDEMNATOR. One where the
decision is in favor of the plaintiff. Ersk.Inst. 4,
3, 5.
DECREET OF VALUATION OF TEINDS. A sentence of the court of sessions, (who are now in
the place of the commissioners for the valuation
of teinds,) determining the extent and value of
teinds. Bell.
DECREMENTUM MARIS. Lat. In old English
law. Decrease of the sea; the receding of the
sea from the land. Callis, Sewers, (53,) 65. See
Reliction.
DECREPIT. This term designates a person who
is disabled, incapable, or incompetent, either from
499
DECRETA
physical or mental weakness or defects, whether
produced by age or other causes, to such an extent as to render the individual comparatively
helpless in a personal conflict with one possessed
of ordinary health and strength. Hall v. State, 16
Tex.App. 11, 49 Am.Rep. 824; Lutz v. State, 147
Tex.Cr.R. 236, 179 S.W.2d 979, 980. The term includes a blind man. Lewing v. State, 135 Tex.Cr.
R. 485, 121 S.W.2d 599, 600.
DECRETUM GRATIANI. Gratian's decree, or
decretum. A collection of ecclesiastical law in
three books or parts, made in the year 1151, by
Gratian, a Benedictine monk of Bologna, being
the oldest as well as the first in order of the collections which together form the body of the Roman canon law. 1 Bl.Comm. 82; 1 Reeve, Eng.
Law, 67.
DECROWNING. The act of depriving of a crown.
DECRETA. In the Roman law. Judicial sentences given by the emperor as supreme judge.
DECRY. To cry down; to deprive of credit. "The
king may at any time decry or cry down any coin
of the kingdom, and make it no longer current."
1 Bl.Comm. 278.
Decreta conciliorum non ligant reges nostros.
Moore, 906. The decrees of councils bind not our
kings.
DECURIO. Lat. A decurion. In the provincial
administration of the Roman empire, the decurions were the chief men or official personages
of the large towns. Taken as a body, the decurions of a city were charged with the entire
control and administration of its internal affairs;
having powers both magisterial and legislative.
See 1 Spence, Eq.Jur. 54.
DECRETAL. The granting or denying of remedy
sought. State v. Reagan County Purchasing Co.,
Tex.Civ.App., 186 S.W.2d 128, 134.
DECRETAL ORDER. A preliminary order that
determines no question upon the merits and establishes no right. Electrical Research Products
v. Vitaphone Corporation, 20 Del.Ch. 417, 171 A.
738.
DEDBANA. In Saxon law. An actual homicide
or manslaughter.
DECRETALES BONIFACH OCTAVI. A supplemental collection of the canon law, published by
Boniface VIII. in 1298, called, also, "Liber Sextus
Decretalium," (Sixth Book of the Decretals.)
DEDI. (Lat. I have given.) A word used in deeds
and other instruments of conveyance when such
instruments were made in Latin, and anciently
held to imply a warranty of title. Deakins v. Hollis, 7 Gill & J., Md., 315.
DECRETALES GREGORII NONI. The decretals
of Gregory the Ninth. A collection of the laws of
the church, published by order of Gregory IX. in
1227. It is composed of five books, subdivided into
titles, and each title is divided into chapters.
They are cited by using an X, (or extra;) thus
"Cap. 8 X de Regulis Juris," etc.
DEDI ET CONCESSI. I have given and granted.
The operative words of conveyance in ancient
charters of feoffment, and deeds of gift and grant;
the English "given and granted" being still the
most proper, though not the essential, words by
which such conveyances are made. 2 Bl.Comm. 53,
316, 317; 1 Steph.Comm. 164, 177, 473, 474.
DECRETALS. In ecclesiastical law. Letters of
the pope, written at the suit or instance of one or
more persons, determining some point or question
in ecclesiastical law, and possessing the force of
law, within the Roman Catholic Church. The decretals form the second part of the body of canon
law.
This is also the title of the second of the two
great divisions of the canon law, the first being
called the "Decree," (decretum.)
DEDICATE. To appropriate and set apart one's
private property to some public use; as to make a
private way public by acts evincing an intention
to do so.
DECRETO. In Spanish colonial law. An order
emanating from some superior tribunal, promulgated in the name and by the authority of the
sovereign, in relation to ecclesiastical matters.
Schm.Civil Law, 93, note.
DECRETUM.
In the Civil Law
A species of imperial constitution, being a judgment or sentence given by the emperor upon hearing of a cause (quod imperator cognoscens decrevit). Inst. 1, 2, 6.
In Canon Law
An ecclesiastical law, in contradistinction to a
secular law, (lex.) 1 Mackeld.Civil Law, p. 81,
§ 93, (Kaufmann's note.)
DEDICATION. In real property law. An appropriation of land to some public use, made by the
owner, and accepted for such use by or on behalf
of the public. Harris v. City of St. Helens, 72
Or. 377, 143 P. 941, 943, Ann.Cas.1916D, 1073. A
deliberate appropriation of land by its owner for
any general and public uses, reserving to himself
no other rights than such as are compatible with
the full exercise and enjoyment of the public
uses to which the property has been devoted.
Longley v. City of Worcester, 304 Mass. 580, 24 N.
E.2d 533, 537; Consolidated Realty Co. v. Richmond Hotel & Building Co., 253 Ky. 463, 69 S.W.2d
985. See Alden Coal Co. v. Challis, 200 Ill. 222,
65 N.E. 665 (streets in company owned village) ;
Du Pont v. Miller, 310 Ill. 140, 141 N.E. 423, 425
(artificial waterway) ; Western Union Telegraph
Co. v. Georgia R. & Banking Co., D.C.Ga., 227 F.
276, 285 (right of way for telegraph lines) ; Manning v. House, 211 Ala. 570, 100 So. 772, 774; Mebane v. City of Wynne, 127 Ark. 364, 192 S.W. 221,
500
DEDUCTIBLE
In Copyright Law
222. (Streets on platted land) ; Johnston v. Medina Improvement Club, 10 Wash.2d 44, 116 P.2d
272, 277, (park and recreation purposes).
The first publication of a work, without having
secured a copyright, is a dedication of it to the
public; that having been done, any one may republish it. Bartlett v. Crittenden, 5 McLean, 32,
Fed.Cas.No.1,076; Deward & Rich v. Bristol Savings & Loan Corporation, C.C.A.Va., 120 F.2d 537,
540 (partial publication).
By Adverse User
A dedication may arise from an adverse exclusive use by the public under a claim of right
with the knowledge, actual or imputed, and acquiescence of the owner. Carpenter v. City of
St. Joseph, 263 Mo. 705, 174 S.W. 53, 56; Dickinson
v. Ruble, 211 Minn. 373, 1 N.W.2d 373, 374, 375;
Clark v. State, 25 Ala.App. 467, 140 So. 178, 179.
Where copyrighted lectures were not delivered to the
general public, but only to paying audiences and classes,
they were not abandoned or dedicated to the public. National Institute for Improvement of Memory v. Nutt, D.C.
Conn., 28 F.2d 132, 134.
DEDICATION-DAY. The feast of dedication of
churches, or rather the feast day of the saint and
patron of a church, which was celebrated not only
by the inhabitants of the place, but by those of
all the neighboring villages, who usually came
thither; and such assemblies were allowed as
lawful. It was usual for the people to feast and to
drink on those days. Cowell.
Tax Revenues
Statute dedicating certain tax revenues to hospital to be remitted directly from Secretary of
State made a "dedication" rather than an "appropriation." State ex rel. Porterie v. Charity Hospital of Louisiana at New Orleans, 182 La. 268, 161
So. 606.
Express Common-Law Dedication
An "express common-law dedication" is one
where the intent is expressly manifested, such
as by ordinary deeds, recorded plats not executed
pursuant to statute or defectively certified so as
not to constitute a statutory dedication. Board of
Com'rs of Garfield County v. Anderson, 167 Okl.
253, 29 P.2d 75, 78.
Express or Implied
A dedication may be express, as where the intention to dedicate is expressly manifested by a
deed or an explicit oral or written declaration of
the owner, or some other explicit manifestation of
his purpose to devote the land to the public use.
An implied dedication may be shown by some act
or course of conduct on the part of the owner from
which a reasonable inference of intent may be
drawn, or which is inconsistent with any other
theory than that he intended a dedication. Hurley
v. West St. Paul, 83 Minn. 401, 86 N.W. 427; Porter v. City of Stuttgart, 135 Ark. 48, 204 S.W. 607,
608; H. A. Hilmer Co. v. Behr, 264 Ill. 568, 106
N.E. 481, 486; Village of Benld v. Dorsey, 311 Ill.
192, 142 N.E. 563, 565; Illinois Cent. R. Co. v.
Bennett, C.C.A.Miss., 296 F. 436, 437; City of
Brownsville v. West, Tex.Civ.App., 149 S.W.2d
1034, 1037, 1038.
Common-Law or Statutory
A common-law dedication is one made as above
described, and may be either express or implied.
A statutory dedication is one made under and in
conformity with the provisions of a statute regulating the subject, and is of course necessarily express. Poindexter v. Schaffner, Tex.Civ.App., 162
S.W. 22, 23; Kaufman v. City of Butte, 48 Mont.
400, 138 P. 770, 771; Neill v. City of Glendale, 106
Cal.App. 553, 289 P. 877, 879.
Where complete statutory dedication does not exist, sale
of lots by reference to plat constitutes common-law "dedication." Byam v. Kansas City Public Service Co., 328 Mo.
813, 41 S.W.2d 945, 949.
DEDIMUS ET CONCESSIMUS: (Lat. We have
given and granted.) Words used by the king, or
where there were more grantors than one, instead of dedi et concessi.
DEDIMUS POTESTATEM. (We have given power.) In English practice. A writ or commission
issuing out of chancery, empowering the persons
named therein to perform certain acts, as to administer oaths to defendants in chancery and take
their answers, to administer oaths of office to justices of the peace, etc. 3 Bl.Comm. 447. It was
anciently allowed for many purposes not now in
use, as to make an attorney, to take the acknowledgment of a fine, etc.
In the United States, a commission to take testimony is sometimes termed a "dedimus potestatem." Buddicum v. Kirk, 3 Cranch, 293, 2 L.Ed.
444; Sergeant's Lessee v. Biddle, 4 Wheat. 508, 4
L.Ed. 627.
DEDIMUS POTESTATEM DE ATTORNO FACIENDO. In old English practice. A writ, issued
by royal authority, empowering an attorney to
appear for a defendant. Prior to the statute of
Westminster 2, a party could not appear in court
by attorney without this writ.
DEDITION. The act of yielding up anything;
surrender.
DEDITITII. In Roman law. Criminals who had
been marked in the face or on the body with fire
or an iron, so that the mark could not be erased,
and subsequently manumitted. Calvin.
DEDUCTIBLE. That which may be taken away
or subtracted; an item which may be subtracted
from income for tax purposes, such as a deductible debt. In re Hermann's Estate, 349 Pa. 230,
36 A.2d 804, 806; a deductible expense. Pacific
Southwest Realty Co. v. McColgan, 53 Cal.App.
2d 549, 128 P.2d 86, 87, or; a deductible loss. Helvering v. Gordon, C.C.A.4, 134 F.2d 685, 689; Bickerstaff v. Commissioner of Internal Revenue, C.C.
A.Ga., 128 F.2d 366, 367.
501
DEDUCTION
DEDUCTION. That which is deducted; the part
taken away; abatement; as a deduction from the
yearly rent. Don Lee, Inc., v. United States, D.C.
Cal., 42 F.Supp. 884, 885; Pittsburgh Brewing Co.
v. Commissioner of Internal Revenue, C.C.A.3, 107
F.2d 155, 156.
In Probate Law
By "deduction" is understood a portion or thing
which an heir has a right to take from the mass
of the succession before any partition takes place.
Civil Code La. art. 1358.
Taxation
As used in Internal Revenue Code, relating to
tax on corporations, "deduction" refers to items
which may be subtracted from a corporation's
gross income in arriving at net income. McKesson
& Robbins v. Walsh, 130 Conn. 460, 35 A.2d 865.
An amount refunded by corporation to federal government under Renegotiation Act as excess profits from war
contracts is not a "deduction" from corporation's gross income subject to state taxation, but must be considered in
determining corporation's true gross income. Southern
Weaving Co. v. Query, 206 S.C. 307, 34 S.E.2d 51, 54.
Trial
Argument of counsel based on the evidence is
not improper as unsworn testimony, but is warranted as a "deduction" from the testimony.
Texas & P. R. Co. v. Smith, Tex.Civ.App., 115 S.
W.2d 1238, 1242.
DEDUCTION FOR NEW. In marine insurance.
An allowance or drawback credited to the insurers on the cost of repairing a vessel for damage
arising from the perils of the sea insured against.
This allowance is usually one-third, and is made
on the theory that the parts restored with new
materials are better, in that proportion than they
were before the damage.
DEED. A conveyance of realty, a writing signed
by grantor, whereby title . to realty is transferred
from one to another. National Fire Ins. Co. v.
Patterson, 170 Okl. 593, 41 P.2d 645, 647; Mitchell
v. Nicholson, 71 N.D. 521, 3 N.W.2d 83, 85, 139
A.L.R. 1175.
In order that an instrument may be operative as a
"deed," it must pass a present interest, although it is not
necessary that grantee take a present estate in property
conveyed. Blair v. Blair, 111 Vt. 53, 10 A.2d 188, 189.
The term is also used as synonymous with
"fact," "actuality," or "act of parties." Thus a
thing "in deed" is one that has been really or expressly done; as opposed to "in law," which means
that it is merely implied or presumed to have been
done. Powell v. Powell, 196 Ga. 694, 27 S.E.2d
393, 396, 397.
At Common Law
At common law, a sealed instrument, containing
a contract or covenant, delivered by the party to
be bound thereby, and accepted by the party to
whom the contract or covenant runs. Co. Litt.
171; 2 Bl.Comm. 295; Shepp. Touchst. 50. A writing containing a contract sealed and delivered.
3 Washb. Real Prop. 239; Sanders v. Riedinger,
30 App.Div, 277, 284, 51 N.Y.S. 937, 942. An instrument in writing, upon paper or parchment,
between parties able to contract, subscribed, sealed, and delivered. 4 Kent, Comm. 452; Interstate
R. Co. v. Roberts, 127 Va. 688, 105 S.E. 463, 464.
There is authority, however, that signing is unnecessary to validity of deed. Bowling v. Wilkerson, D.C.Ky., 19 F.Supp. 584, 587.
A writing under seal by which lands, tenements,
or hereditaments are conveyed for an estate not
less than freehold. 2 Bl.Comm, 294.
A dded implies, at common law, a sealed instrument. 2 Bl.Comm. 295; Rondot v. Rogers Tp., 39
C.C.A. 462, 99 F. 202, 209; Strain v. Fitzgerald, 128
N.C. 396, 38 S.E. 929, 930; Williams v. State, 25
Fla. 734, 6 So. 831, 832, 6 L.R.A. 821; e. g., a bond
is a deed for the reason that it is sealed by the
obligor. In re Contest of Election of Burns, 315
Pa. 23, 171 A. 888, 889. But the term Is also applied
to similar instruments, not under seal, executed
in jurisdictions in which the use of seals is unknown (see Steigenberger v. Carr, 3 M. & G., 191,
199, 42 ECL 107, 133 Reprint. 1111), or in which
seals have been rendered unnecessary by statute.
See Henderson v. Howard, 147 Ga. 371, 94 S.E.
251; Gibbs v. McGuire, 70 Miss. 646, 12 So. 829.
Modern Rule
A written instrument, signed, sealed, and delivered, by which one person conveys land, tenements, or hereditaments to another. This is its
ordinary modern meaning, at least in those jurisdictions which adhere to the common-law rule
making a seal essential to the validity and operative effect of a deed of conveyance. McMee v
Henry, 163 Ky. 729, 174 S.W. 746, 747; Dunham v.
Marsh, 52 N.J.Eq. 256, 30 A. 473, 474; Hood v.
Fletcher, 31 Ariz. 456, 254 P. 223, 224.
The term may include a mortgage of real estate. Lockridge v. McCommon, 90 Tex. 234, 38 S.W. 33, 35 (citing
Hellman v. Howard, 44 Cal. 110) ; Daly v. Minnesota Loan.
& Investment Co., 43 Minn. 517, 45 N.W. 1100, 1101; Morgan v. Wickliffe, 115 Ky. 226, 72 S. W. 1122. But, contra,
see Eaton v. White, 18 Wis. 517, 519; National Bank of
Columbus v. Tennessee Coal, Iron & Railroad Co., 62 Ohio
St. 564, 57 N.E. 450. Similarly a lease for years under seal
may be a deed. Hutchinson v. Bramhall, 42 N.J.Eq. 372, 7
A. 873, 875. And a lease exceeding twenty-one years is
held to be within the term. St. Vincent's Roman Catholic
Congregation of Plymouth v. Kingston Coal Co., 221 Pa.
349, 70 A. 838, 839. But a stipulation for a deed prohibiting drilling for oil or gas was held not to include a lease.
Test Oil Co. v. La Tourette, 19 Old. 214, 91 P. 1025, 1029.
The essential difference between a "deed" and a "will"
is that the former passes a present interest and the latter
passes no interest until after the death of the maker.
Willis v. Fiveash, Tex.Civ.App., 297 S.W. 509, 510; Harber
v. Harber, 152 Ga. 98, 108 S.E. 526; Henderson v. Henderson, 210 Ala. 73, 97 So. 353, 372; Bowdoin College v. Merritt, C.C.Cal., 75 F. 480, 483. A will is "an instrument by
which a person makes a disposition of his property to take
effect after his decease, which is in its own nature ambulatory and revocable thir`ing his life. It is this ambulatory
quality which form's the characteristic of wills; for, though,
a disposition by deed may postpone the possession or enjoyment, or even the vesting, until the death of the disposing party, yet the postponement is in such case produced by the express terms, and does not result from the
nature of the instrument." In re Hall's Estate, 149 Cal.
143, 84 P. 839, 840; Robb v. Washington & Jefferson College, 185 N.Y. 485, 78 N.E. 359, 361 (quoting and adopting
definition in Jarman, Wills, p. 17). The main test, however, whether a writing is a will or deed, is the animus
502
DEED, ESTOPPEL BY
testandi. Belgrade v. Carter, Tex.Civ.App., 146 S.W. 964,
965; McLain v. Garrison, 39 Tex.Civ.App. 431, 88 S.W. 484,
89 S.W. 284 (citing Gillham v. Mustin, 42 Ala. 366; Trawick v. Davis, 85 Ala. 345, 5 So. 83) ; Ecklar's Adm'r v.
Robinson, 96 S. W. 845, 846, 29 Ky.Law Rep. 1038. Harber
v. Harber, 152 Ga. 98, 108 S.E. 520. "Deeds" are irrevocable and take effect by delivery, while "wills" are always
revocable during testamentary capacity and take effect
only after testator's death. Self v. Self, 212 Ala. 512, 103
So. 591, 592. If a document cannot be revoked or impaired
by the grantor, it is a "deed," but if the grantor recites
an unqualified power of revocation, it is a "will." Craft v.
Moon, 201 Ala. 11, 75 So. 302, 303. An instrument purporting to convey title to lands on its delivery is a deed and
not a will, though possession be deferred until the grantor's death. Lovenskoild v. Casas, Tex.Civ.App., 196 S.W.
629, 631.
A deed is distinguished from a contract in that a deed
is a mere transfer of title to realty, and is the act of but
one of the parties, made pursuant to a previous contract
either in parol or in writing. Collins v. Lyon, Inc., 181 Va.
230, 24 S.E.2d 572, 579. Accordingly; want of consideration of itself will not warrant setting aside a deed, though
want of consideration would be good defense to an executory contract. Lawson v. Boo, 227 Iowa 100, 287 N.W. 282,
284. However, a deed is a contract, for the purpose of
reformation in equity to make it truly speak the legally
ascertained intention of the parties. Sawyer Coal & Ice
Co. v. Kinnett-Odom Co., 192 Ga. 166, 14 S.E.2d 879, 883.
Deed for a nominal sum. In effect the same as
a deed of gift. Bertelsen v. Bertelson, 49 Cal.App.
2d 479, 122 P.2d 130, 133.
Deed in fee. A deed conveying the title to land
in fee simple with the usual covenants. Rudd v.
Savelli, 44 Ark. 152; Moody v. Spokane & U. H.
St. Ry. Co., 5 Wash. 699, 32 P. 751.
Deed indented, or indenture. In conveyancing.
A deed executed or purporting to be executed in
parts, between two or more parties, and distinguished by having the edge of the paper or parchment on which it is written indented or cut at the
top in a particular manner. This was formerly
done at the top or side, in a line resembling the
teeth of a saw; a formality derived from the ancient practice of dividing chirographs; but the cutting is now made either in a waving line, or more
commonly by notching or nicking the paper at the
edge. 2 Bl.Comm. 295, 296; Litt. § 370; Smith,
Cont. 12.
Deed of covenant. Covenants are sometimes
entered into by a separate deed, for title, or for the
indemnity of a purchaser or mortgagee, or for
the production of title-deeds. A covenant with a
penalty is sometimes taken for the payment of
a debt, instead of a bond with a condition, but the
legal remedy is the same in either case.
Deed of gift. A deed executed and delivered
without consideration.
Thus a conveyance to church mission board for
which board agreed to educate a relative of grantors for the ministry should grantors die before
his education was completed, was not a strict
"deed of gift". Forbes v. Board of Missions of M.
E. Church, South, 17 Ca1.2d 332, 110 P.2d 3, 7.
Deed of release. One releasing property from
the incumbrance of a mortgage or similar pledge
upon payment or performance of the conditions;
more specifically, where a deed of trust to one or
more trustees has been executed, pledging real
property for the payment of a debt or the performance of other conditions, substantially as in
the case of a mortgage, a deed of release is the
conveyance executed by the trustees, after payment or performance, for the purpose of divesting
themselves of the legal title and revesting it in
the original owner. See Swain v. McMillan, 30
Mont. 433, 76 Pac. 943.
Deed of separation. An instrument by which,
through the medium of some third person acting
as trustee, provision is made by a husband for
separation from his wife and for her separate
maintenance. Whitney v. Whitney, 15 Misc. 72,
36 N.Y.S. 891, 892.
Deed of settlement. A deed formerly used in
England for the formation of joint stock companies constituting certain persons trustees of the
partnership property and containing regulations
for the management of its private affairs. They
are now regulated by articles of association.
Deed of trust. An instrument in use in many
states, taking the place and serving the uses of a
common-law mortgage, by which the legal title to
real property is placed in one or more trustees, to
secure the repayment of a sum of money or the
performance of other conditions. Bank v. Pierce,
144 Cal. 434, 77 P. 1012; In re Sherman, D.C.Va.,
12 F.Supp. 297, 298, 299. Though differing in form
from mortgage, it is essentially a security. Bank
of America Nat. Trust & Savings Ass'n v. Bank
of Amador County, 135 Cal.App. 714, 28 P.2d 86,
88. In re Title Guaranty Trust Co., Mo.App., 113
S.W.2d 1053, 1057. See Trust Deed.
Deed poll. A deed which is made by one party
only. See Hawkins v. Corbit, 83 Okl. 275, 201 P.
649, 653. A deed in which only the party making
it executes it or binds himself by it as a deed. 3
Washb. R. P. 311. It was originally so called because the edge of the paper or parchment was
polled or cut in a straight line, wherein it was
distinguished from a deed indented or indenture.
As to a special use of this term in Pennsylvania in
colonial times, see Herron v. Dater, 120 U.S. 464,
7 S.Ct. 620, 624, 30 L.Ed. 748 (citing Evans v.
Patterson, 71 U.S. 224, 4 Wall. 224, 18 L.Ed. 393).
Deed to lead uses. A deed made before a fine
or common recovery, to show the object thereof.
As to "execution of deed," see Execution of Instrument.
Gratuitous deed. One made without consideration. 2 Steph.Com. 47. As to "Quitclaim" deed,
"Tax" deed, "Trust" deed, and "Warranty" deed,
see those titles.
DEED, ESTOPPEL BY. Such as arises from the
provisions of a deed. Erickson v. Wiper, 33 N.D.
193, 157 N.W. 592, 598; Green v. Clark, 13 Vt. 158;
Reinhard v. Virginia Lead Min. Co., 107 Mo. 616,
18 S.W. 17, 28 Am.St.Rep. 441.
A preclusion against the competent parties to a valid
sealed contract and their privies to deny its force and effect by any evidence of inferior solemnity. Hart v. Anaconda Copper Mining Co., 69 Mont. 354, 222 P. 419, 421.
503
DEED, ESTOPPEL BY
Such an estoppel occurs where a party has executed a
deed, that . is, a writing under seal (as a bond) reciting a
certain fact, and is thereby precluded from afterwards
denying, in any action brought upon that instrument, the
fact so recited. Steph,P1. 197. A man shall always be
estopped by his own deed, or not permitted to aver or
prove anything in contradiction to what he has once so
solemnly and deliberately avowed. 2 Bl.Comm. 295; Plowd.
434; Hudson v. Winslow Tp., 35 N.J.Law, 441; Taggart
v. Risley, 4 Or. 242; Appeal of Waters, 35 Pa. 526, 78 Am.
Dec. 354.
A warranty deed by one having only a contingent remainder passes title, by way of "estoppel" to grantee, as
soon as remainder vests by happening of contingency.
Thames v. Goode, 217 N.C. 639, 9 S.E.2d 485, 488.
"Estoppel by deed" is a bar precluding party from denying truth of his deed. Talley v. Howsley, Tex.Civ.App.,
170 S.W.2d 240, 243. It is limited to an action founded on
the deed itself. Hughes v. Cobb, 195 Ga. 213, 23 S.E.2d 701,
715. It applies to the maker of the deed, and does not
ordinarily apply to the grantee. Hughes v. Cobb, 195 Ga.
213, 23 S.E.2d 701, 715. It arises only when suit is on the
deed or concerning a right arising out of the deed and between parties or privies to the deed. Robert v. O'Connell,
269 Mass. 532, 169 N.E. 487, 488. It arises only where there
is express representation as to ownership, title % or interest
in question, or where there are express warranties thereto.
Petition of Testan, 156 Misc. 449, 281 N.Y.S. 96. It cannot
be invoked by one through whose imposition a statement
was inserted in the deed. Capitol Nat. Bank & Trust Co. v.
David B. Roberts, Inc., 129 Conn. 194, 27 A.2d 116, 119, 141
A.L.R. 1179. It precludes a party thereto and his privies
as against other party and his privies. Sammons v. Brunson, Tex.Civ.App., 25 S.W.2d 685, 688.
A distinct and precise assertion or admission of fact is
necessary. Cook v. Farley, 195 Miss. 638, 15 So.2d 352, 357.
Inducement to change course to one's disadvantage is
essential. Funderburk v. Magnolia Sugar Co-op., La.App.,
8 So.2d 374, 377.
The effect of doctrine is same as if in deed itself, there
had been inserted express provision that it conveyed not
only all title then possessed but all that might thereafter be acquired. Meyers v. American Oil Co., 192 Miss.
180, 5 So.2d 218, 220.
DEEM. To hold; consider; adjudge; condemn;
determine; treat as if; construe. Douglas v.
Edwards, C.C.A.N.Y., 298 F. 229, 237; In re
Schmidt's Estate, 134 Wash. 525, 236 P. 274, 275;
In re Green's Estate, 99 Misc. 582, 164 N.Y.S. 1063,
1083; Harder v. Irwin, D.C.N.Y., 285 F. 402, 404;
First Nat. Bank v. Dodd, 118 Or. 1, 245 P. 503, 504.
But see Kleppe v. Odin Tp., McHenry County, 40
N.D. 595, 169 N.W. 313, 314, which gives "deemed"
the force of only a "disputable presumption," or
of prima facie evidence. When, by statute, certain acts are "deemed" to be a crime of a particular nature, they are such crime, and not a
semblance of it, nor a mere fanciful approximation to or designation of the offense. Com. v.
Pratt, 132 Mass. 247; Commonwealth v. Brue, 284
Pa. 294, 131 A. 367, 368.
characters as expressive of a definite meaning) of
a written instrument, signature, inscription, etc.,
by obliteration, erasure, cancellation, or superinscription, so as to render it illegible or unrecognizable. Linney v. State, 6 Tex. 1, 55 Am.Dec. 756.
See Cancel. In re Parsons' Will, 195 N.Y.S. 742,
745, 119 Misc. 26. Also used in respect of injury
to monument, buildings and other structures. Saffell v. State, 113 Ark. 97, 167 S.W. 483. So, to deface the flag carries the meaning of dishonor,
which imputes a lively sense of shaming or an
equivalent acquiescent callousness. State v.
Schlueter, 127 N.J.L. 496, 23 A.2d 249, 251,
DE FACTO. In fact; actually; indeed; in reality.
Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255, 257,
71 A.L.R. 830. Thus, an office, position or status
existing under a claim or color of right such as a
deputy county clerk. Heron v. Gaylor, 49 N.M. 62,
157 P.2d 239, 241; deputy clerk of court. State
v. Brandon, 186 S.C. 448, 197 S.E. 113, 115; corporate office. In re Hillmark Associates, D.C.N.
Y., 47 F.Supp. 605, 606; corporation, Municipal
Bond & Mortgage Corporation v. Bishop's Harbor
Drainage Dist., 133 Fla. 430, 182 So. 794, 797;
Ebeling v. Independent Rural Telephone Co., 187
Minn. 604, 246 N.W. 373; court, Marckel Co. v.
Zitzow, 218 Minn. 305, 15 N.W.2d 777, 778; depositary, School Dist. No. 1, Itasco County, v. Afton, 173 Minn. 428, 217 N.W. 496, 499; deputy sheriff, Malone v. Howell, 140 Fla. 693, 192 So. 224,
227; fire district commissioner, Petition of Board
of Fire Com'rs of Columbia-Litchfield Fire Dist,.
Sup., 29 N.Y.S.2d 605, 619; grand jury, McDonald
v. Colden, 181 Misc. 407, 41 N.Y.S.2d 323, 327;
guardian, State ex rel. Symons v. East Chicago
State Bank, 106 Ind.App. 4, 17 N.E.2d 491, 494;
judge, Annoni v. Bias Nadal's Heirs, C.C.A.Puerto
Rico, 94 F.2d 513, 515; officer, Eaker v. Common
School Dist. No. 73 of Butler County, Mo.App., 62
S.W.2d 778, 783; police officer, People ex ref.
Mitchell v. Armspach, 314 Ill.App. 573, 41 N.E.2d
781; trustee, In re Wohl's Estate, 36 N.Y.S.2d 926,.
930.
DE FACTO GOVERNMENT. One that maintains
itself by a display of force against the will of the
rightful legal government and is successful, at
least temporarily, in overturning the institutions
of the rightful legal government by setting up its
own in lieu thereof. Wortham v. Walker, 133
Tex. 255, 128 S.W.2d 1138, 1145.
DEER-HAYES. Engines or great nets made of
cord to catch deer. 19 Hen. VIII, c. 11.
DEFALCATION. The act of a defaulter; misappropriation of trust funds or money held in any
fiduciary capacity; failure to properly account for
such funds. Usually spoken of officers of corporations or public officials. In re Butts, D.C.N.Y.,
120 F. 970; Crawford v. Burke, 201 Ill. 581, 66 N.E.
833.
Also set-off. The diminution of a debt or claim,
by deducting from it a smaller claim held by the
debtor or payor. Iron Works v. Cuppey, 41
Iowa, 104; Houk v. Foley, 2 Pen. & W., Pa., 250;
McDonald v. Lee, 12 La. 435.
DEFACE. To mar or destroy the face (that is,
the physical appearance of written or inscribed
Colloquially, perhaps, the worn "defalcation" ordinarily
implies some moral dereliction. As used in the Bankruptcy
Act, it may demand some portion of misconduct, but it is
DEEMSTERS. Judges in the Isle of Man, who
decide all controversies without process, writings,
or any charges. These judges are chosen by the
people, and are said by Spelman to be two in number. Spelman.
DEER-FALD. A park or fold for deer.
504
DEFEASANCE
not synonymous with "embezzlement." The act of a receiver in a mortgage foreclosure suit in withdrawing and
spending an amount allowed him by an order passing his
intermediate account without waiting for the time for appeal to expire or consulting plaintiff as to whether it Intended to appeal, is a "defalcation". Central Hanover
Bank & Trust Co. v. Herbst, C.C.A.X.Y., 93 F.2d 510, 511,
512, 114 A.L.R. 769.
done. Town of Milton v. Bruso, 111 Vt. 82, 10 A.
2d 203, 205. Specifically, the omission or failure
to perform a legal duty. Easterwood v. Willingham, Tex.Civ.App., 47 S.W.2d 393, 395; to observe
a promise or discharge an obligation, Bradbury v.
Thomas, 27 P.2d 402, 135 Cal.App. 435; or to perform an agreement, Eastman v. Morgan, D.C.N.Y.,
43 F.Supp. 637, 641. The term also embraces the
idea of dishonesty, In re State, 210 Wis. 9, 245 N.
W. 844, 845, and of wrongful act, Greco v. S. S.
Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 562, 115
A.L.R. 1020; or an act or omission discreditable
to one's profession, Hilkert v. Canning, 58 Ariz.
290, 119 P.2d 233, 236,
DEFALK. To set off one claim against another;
to deduct a debt due to one from a debt which
one owes. Johnson v. Signal Co., 57 N.J.Eq. 79, 40
A. 193; Burris v. Boone, 4 Boyce, Del., 148, 86 A.
730. This verb corresponds only to the second
meaning of "defalcation" as given above; a public officer or trustee who misappropriates or embezzles funds in his hands is not said to "defalk."
DEFAMACAST. Defamation by broadcast. American Broadcasting-Paramount Theatres, Inc. v.
Simpson, 126 S.E.2d 873, 879, 106 Ga.App. 230.
In Practice
DEFAMATION. The taking from one's reputation. The offense of injuring 'a person's character, fame, or reputation by false and malicious
statements. The term seems to include both libel
and slander. In general, see Shaw Cleaners & Dyers v. Des Moines Dress Club, 215 Iowa, 1130, 245
N.W. 231, 86 A.L.R. 839; Snavely v. Booth, 6 W.
W.Harr. 378, 176 A. 649; Washer v. Bank of America Nat. Trust & Savings Ass'n, 128 P.2d 799. Libel. Seested v. Post Printing & Publishing Co.,
326 Mo. 559, 31 S.W.2d 1045, 1052, Slander. Connelly v. McKay, 176 Misc, 685, 28 N.Y.S.2d 327, 329.
The distinction between "criticism" and "defamation" is
that criticism deals only with such things as invite public
attention or call for public comment, and does not follow
a man into his private life, or pry into his domestic concerns, and it never attacks the individual, but only his
work. Schwimmer v, Commercial Newspaper Co., 131 Misc.
552, 228 N.Y.S. 220, 221.
The fundamental difference between a right to "privacy"
and a right to freedom from "defamation" is that the
former directly concerns one's own peace of mind whereas
the latter concerns primarily one's reputation. Themo v.
New England Newspaper Pub. Co., 306 Mass. 54, 27 N.E.2d
753, 755.
DEFAMATORY. Calumnious; containing defamation; injurious to reputation; libelous;
slanderous; words which produce any perceptible
injury to the reputation of another. Sheridan V.
Davies, 139 Kan. 256, 31 P.2d 51, 54.
DEFAMATORY PER QUOD. In respect of
words: Those which require an allegation of facts,
aside from the words contained in the article, by
way of innuendo, to show wherein the words used
libel the plaintiff, in order to state a cause of action in a complaint. Rowan v. Gazette Printing
Co., 74 Mont. 326, 239 P. 1035, 1037.
DEFAMATORY PER SE. In respect of words:
Those which by themselves, and as such, without
reference to extrinsic proof, injure the reputation
of the person to whom they are applied. Manley
v. Harer, 73 Mont. 253, 235 P. 757, 758; Conrad v.
Allis-Chalmers Mfg. Co., 228 Mo.App. 817, 73 S.
W.2d 438, 446.
DEFAMES. L. Fr, Infamous. Britt. c. 15.
DEFAULT. By its derivation, a failure. Meadows v. Continental Assur. Co., C.C.A.Tex., 89 F.
2d 256. An omission of that which ought to be
Omission; neglect or failure of any party to take
step required of him in progress of cause. Indiana State Board of Medical Registration and
Examination v. Pickard, 93 Ind.App. 171, 177 N.E.
870, 872. When a defendant in an action at law
omits to plead within the time allowed him for
that purpose, or fails to appear on the trial, he is
said to make default, McCabe v. Tom, 35 Ohio
App. 73, 171 N.E. 868, 869, and the judgment entered in the former case is technically called a
"judgment by default." 3 Bl.Comm. 396; 1 Tidd,
Pr. 562.
A "default" in an action at law is somewhat similar to
the entry of a decree in equity that the bill be taken for
confessed, neither being a final disposition. Felton v.
Felton, 128 Conn. 564, 196 A. 791, 793.
In General
Default of issue. Failure to have living children or descendants at a given time or fixed point.
George v. Morgan, 16 Pa. 106; In re Van Cleef,
92 Misc. 689, 157 N.Y.S. 549, 551.
Defaulter. One who makes default. One who
misappropriates money held by him in an official
or fiduciary character, or fails to account for such
money.
Judgment by default. See Judgment.
DEFEASANCE. An instrument which defeats
the force or operation of some other deed or estate. That which is in the same deed is called a
"condition"; and that which is in another deed is
a "defeasance." Com. Dig. "Defeasance." Beindorf v. Thorpe, 90 Okl. 191, 203 P. 475, 477; In re
A. Roth Co., C.C.A.I11., 118 F.2d 156, 158.
A "defeasance" is a collateral deed made at the same
time as a feoffment or other conveyance, containing certain
conditions upon the performance of which the estate then
created may be defeated or totally undone. Bach v. First
Nat. Bank, 99 Ind.App. 590, 193 N.E. 696, 697.
In Conveyancing
A collateral deed made at the same time with a
feoffment or other conveyance, containing certain
conditions, upon the performance of which th'
estate then created may be defeated or totally undone. 2 Bl.Comm. 327; Co. Litt. 236, 237.
An instrument accompanying a bond, recognizance, or judgment, containing a condition which,
505
DEFEASIBLE
when performed, defeats or undoes it. 2 Bl.
Comm. 342; Miller v. Quick, 158 Mo. 495, 59 S.W.
955.
DEFEASIBLE. Subject to be defeated, annulled,
revoked, or undone upon the happening of a future
event or the performance of a condition subsequent, or by a conditional limitation. Usually
spoken of estates and interests in land. For instance, a mortgagee's estate is defeasible (liable
to be defeated) by the mortgagor's equity of redemption. Penick v. Atkinson, 139 Ga. 649, 77 S.E.
1055, 1057, 46 L.R.A.,N.S., 284; Murphy v. Murphy, 182 Ky. 731, 207 S.W. 491, 493.
DEFEASIBLE FEE. An estate in fee that is liable to be defeated by some future contingency;
e. g., a vested remainder which might be defeated
by the death of the remainderman before the time
fixed for the taking effect of the devise. Giltner's
Trustee v. Talbott, 253 Ky. 474, 69 S.W.2d 981;
Daly v. Pate, 210 N.C. 222, 186 S.E. 348, 349.
DEFEASIBLE TITLE. One that is liable to be
annulled or made void, but not one that is already
void or an absolute nullity. Elder v. Schumacher,
18 Colo. 433, 33 P. 175.
DEFEASIVE. Describes counterclaim which, if
it prevails, will defeat right of plaintiffs to recover.
Hayden v. Collins, 90 Utah, 238, 63 P.2d 223, 225.
DEFEAT. To prevent, frustrate, or circumvent;
as in the phrase "hinder, delay, or defeat creditors." Coleman v. Walker, 3 Mete., Ky., 65, 77
Am.Dec. 163; Reuff-Griffin Decorating Co. v.
Wilkes, 191 S.W. 443, 446, 173 Ky. 566.
To overcome or prevail against in any contest;
as in speaking of the "defeated party" in an action
at law. Wood v. Bailey, 21 Wall. 642, 22 L.Ed.
689. Or "defeated candidate" in an election. Norcop v. Jordan, 216 Cal. 764, 17 P.2d 123, 124.
To annul, undo, or terminate; as, a title or estate. See Defeasible.
DEFECT. The want or absence of some legal
requisite; deficiency; imperfection; insufficiency.
Sappenfield v. National Zinc Co., 94 Kan. 22, 145
P. 862, 863; Galloway v. City of Winchester, 299
Ky. 87, 184 S.W.2d 890, 892, 893. The want or absence of something necessary for completeness
or perfection; a lack or absence of something essential to completeness; a deficiency in something essential to the proper use for the purpose
for which a thing is to be used. Roberts v. Rogers, 129 Neb. 298, 261 N.W. 354; Terrell v. City
of Orangeburg, 176 S.C. 518, 180 S.E. 670.
Thus, a bamboo vaulting pole which was not straight
and was unbalanced had a "defect." McCormick v. Lowe
& Campbell Athletic Goods Co., 235 Mo.App. 612, 144 S.W.
2d 866, 876.
DEFECT IN HIGHWAY OR STREET. Ordinarily anything in the condition or state of highway
or street that renders it unreasonably safe for
travel. Payne v. State Highway Commission, 136
Kan. 561, 16 P.2d 509, 511. Thus courts have held
as highway or street defects corrugations, Cheney v. State Highway Commission, 142 Kan. 149, 45
P.2d 864, 866; spike in cross walk, Fay v. City of
Green Bay, 240 Wis. 36, 1 N.W.2d 767, 768, a hollow, Adams v. Town of Bolton, 297 Mass. 459, 9
N.E.2d 562, 111 A.L.R. 856, and anything that may
reasonably be expected to interfere with safe use
of sidewalk by pedestrian. City of Birmingham
v. Wood, 240 Ala. 138, 197 So. 885, 887.
DEFECT IN MACHINERY. Under Code 1907,
§ 3910, subd. 1, making the master liable for injury from defects in the condition of works or
machinery, it is essential that there be inherent
condition of a permanent nature which unfits
machine for its uses, some weakness of construction with reference to the proposed uses, some
misplacement of parts, or the absence of some
part, some innate abnormal quality rendering
its use dangerous, or some obstacle to the use
or the way of use which is part of the condition
of the machinery itself. Caldwell-Watson Foundry & Machine Co. v. Watson, 183 Ala. 326, 62 So.
859, 862.
DEFECT OF FORM. An imperfection in the
style, manner, arrangement, or non-essential
parts of a legal instrument, plea, indictment, etc.,
as distinguished from a "defect of substance."
See infra.
DEFECT OF PARTIES. In pleading and practice.
Insufficiency of the parties before a court in any
given proceeding to give it jurisdiction and authority to decide the controversy, arising from the
omission or failure to join plaintiffs or defendants
who should have been brought in; never applied
to a superfluity of parties or the improper addition of plaintiffs or defendants. Porter Const.
Co. v. Berry, 136 Or. 80, 298 P. 179, 182; Salisbury
v. Berry Motor Co., 122 Neb. 605, 241 N.W. 86, 87;
De Pass v. City of Spartanburg, 190 S.C. 22, 1
S.E.2d 904, 908. It is not synonymous with "misjoinder of parties". Okmulgee Supply Co. v. Rotman, 144 Okl. 293, 291 P. 1, 2.
DEFECT OF SUBSTANCE. An imperfection in
the body or substantive part of a legal instrument, plea, indictment, etc., consisting in the
omission of something which is essential to be
set forth. Sweeney v. Greenwood Index-Journal
Co., D.C.S.C., 37 F.Supp. 484, 487.
DEFECTIVE. Lacking in some particular which
is essential to the completeness, legal sufficiency,
or security of the object spoken of; as a "defective" highway or bridge (Mennito v. Town
of Wayland, Sup., 56 N.Y.S.2d 654, 664; Warren
County v. Battle, 48 Ga.App. 240, 172 S.E. 673,
674) ; car coupler (McAllister v. St. Louis Merchants' Bridge Terminal Ry. Co., 324 Mo. 1005,
25 S.W.2d 791, 795) ; machinery (Riccio v. Town of
Plainville, 106 Conn. 61, 136 A. 872, 873; Chaney v.
Village of Riverton, 104 Neb. 189, 177 N.W. 845,
846, 10 A.L.R. 244; Bryan v. City of West Palm
Beach, 75 Fla. 19, 77 So. 627) ; writ or recognizance (State v. Lavalley, 9 Mo. 836; McArthur v.
Boynton, 19 Colo.App. 234, 74 P. 542) ; or title
( Copertini v. Oppermann, 76 Cal. 181, 18 P. 256) ;
service of process or return of service (Tioga Coal
506
DEFENSE
titled to remove cause to federal court. In re Chicago, M.
St. P. & P. R. Co., D.C.Minn., 50 F.2d 430, 434.
In common usage, this term is applied to the party put
upon his defense, or summoned to answer a charge or complaint, in any species of action, civil or criminal, at law or
in equity. Strictly, however, it does not apply to the person against whom a real action is brought, for in that proceeding the technical usage is to call the parties respectively the "demandant" and the "tenant."
Corporation v. Silman, 125 W.Va. 58, 22 S.E.2d
873, 876; State ex rel. Briggs v. Barns, 121 Fla.
857, 164 So. 539, 542).
DEFECTIVE OR INSUFFICIENT SPECIFICATIONS BY PATENTEE. Any failure either to
describe or to claim the complete invention upon
which the application for patent is founded.
Robert v. Krementz, C.C.A.N.J., 243 F. 877, 881.
Defendant in error. The distinctive term appropriate to the party against whom a writ of error
is sued out.
DEFECTIVE TITLE. With respect to negotiable
paper within Negotiable Instruments Law, the
title of a person who obtains instrument or any
signature thereto by fraud, duress, or force and
fear, or other unlawful means, or for an illegal
consideration, or when he negotiates it in breach
of faith or under such circumstances as amount
to fraud. Stevens v. Pierce, 79 Oki. 290, 193 P.
417, 18 A.L.R. 7; (fraud) German-American Nat.
Bank v. Kelley, 183 Iowa, 269, 166 N.W. 1053;
Commercial Security Co. v. Jack, 29 N.D. 67, 150
N.W. 460, 461.
Principal defendant. One who has an interest
in the controversy presented by the bill, and
whose presence is requisite to the complete and
partial adjudication of the controversy. Bird v.
Sleppy, 265 Pa. 295, 108 A. 618, 619.
DEFENDARE. To answer for; to be responsible
for. Medley.
DEFECTUS. Lat. Defect; default; want; imperfection; disqualification.
Challenge Propter Defectum
A challenge to a juror on account of some legal
disqualification, such as infancy, etc. See Challenge.
Defectus Sanguinis
Failure of the blood, i. e., failure or want of
issue.
DEFEND. To prohibit or forbid. To deny. To
contest and endeavor to defeat a claim or demand made against one in a court of justice.
Boehmer v. Irrigation Dist., 117 Cal, 19, 48 P. 908.
To oppose, repel, or resist.
To protect, to shield, to make a stand for, or
uphold by force or argument, vindicate, to maintain or keep secure, to guaranty, to agree to indemnify. Powell v. U. S., D.C.Va., 60 F.Supp. 433,
439.
Although a contract between mortgagee and mortgagor's
creditor who purchased mortgaged automobile that creditor
will "defend" mortgagee against all suits, etc., was held
to be contract to defend litigation, not to indemnify. Hall
v. Cannon, 90 Colo. 465, 9 P.2d 1057.
DEFENDANT. The person defending or denying; the party against whom relief or recovery
is sought in an action or suit. Graham Bros. Aktiebolag v. St. Paul Fire & Marine Ins. Co., 126
Misc. 32, 212 N.Y.S. 380, 381; Atlantic Mut. Insurance Co. v. Alexandre, D.C.N.Y., 16 F. 279, 281;
Siekmann v. Kern, 136 La. 1068, 68 So. 128. See,
also, Ferguson v. Montgomery, 148 Ark. 83, 229
S.W. 30, 36 (election contest) ; Boyd v. Lambert,
58 Okl. 497, 160 P. 586, 587 (injunction bond) ;
Alexander v. United States, C.C.A.Mo., 95 F.2d
873, 879 (joinder); Welty v. Schmutte, 128 Neb.
415, 258 N.W. 873 (mortgage foreclosure) ; Loft,
Inc. v. Corn Products Refining Co., C.C.A.Ind., 103
F.2d 1, 5 (anti-trust prosecution).
Thus, railroads, on appeal by city to state district court
from order of Minnesota Railroad and Warehouse Commission requiring grade separation, were held defendants en-
DEFENDEMUS. Lat. A word used in grants
and donations, which binds the donor and his
heirs to defend the donee, if any one go about to
lay any incumbrance on the thing given other
than what is contained in the deed of donation.
Bract. 1. 2, c. 16.
DEFENDER. (Fr.) To deny; to defend; to
conduct a suit for a defendant; to forbid; to
prevent; to protect.
In Scotch and canon law. A defendant.
DEFENDER OF THE FAITH. A peculiar title
belonging to the sovereign of England, as that of
"Catholic" to the king of Spain, and that of "Most
Christian" to the king of France. These titles
were originally given by the popes of Rome; and
that of Defensor Fidei was first conferred by
Pope Leo X. on King Henry VIII., as a reward
for writing against Martin Luther; and the bull
for it bears date quinto Idus Octob., 1521. Enc.
Lond,
DEFENDERE SE PER CORPUS SUUM. To offer duel or combat as a legal trial and appeal.
Abolished by 59 Geo. III. § 46. See Battel.
DEFENDERE UNICA MANU. To wage law; a
denial of an accusation upon oath. See Wager
of Law.
DEFENDIT VIM ET INJURIAM. He defends
the force and injury. Pieta, lib. 5, c. 39, § 1.
DEFENDOUR. L. Fr. A defender or defendant;
the party accused in an appeal. Britt. c. 22.
DEFENERATION. The act of lending money on
usury.
DEFENSA. In old English law. A park or place
fenced in for deer, and defended as a property
and peculiar for that use and service. Cowell.
DEFENSE. That which is offered and alleged
by the party proceeded against in an action or
suit, as a reason in law or fact why the plaintiff
should not recover or establish what he seeks;
what is put forward to diminish plaintiff's cause
507
DEFENSE
of action or defeat recovery. 'Etna Life Ins. Co.
v. Braukman, C.C.A.Colo., 70 F.2d 647, 649; Lindsay v. State, Tex.Civ.App., 25 S.W.2d 1113, 1115.
More properly what is sufficient when offered for
this purpose. In either of these senses it may be
either a denial, justification, or confession and
avoidance of the facts averred as a ground of
action, or an exception to their sufficiency in
point of law. Whitfield v. Aetna Life Insurance
Co., C.C.Mo., 125 F. 270; Eagle Savings & Loan
Ass'n v. West, 71 Ohio App. 485, 50 N.E.2d 352,
356; Paillet v. Vroman, 52 Cal.App.2d 297, 126 P.
2d 419, 421; (challenge to jurisdiction) Tradesmens Nat. Bank & Trust Co. v. Charlton Steam
Shipping Co., D.C.Pa., 3 F.R.D. 363, 364; (denial)
Levine v. Behn, 282 N.Y. 120, 25 N.E.2d 871, 873;
(legal insufficiency) Dysart v. Remington Rand,
D.C.Conn., 31 F.Supp. 296, 297; (payment) Hoadley v. W. T. Rawleigh Co., 112 Ind.App. 563, 44 N.
E.2d 231, 232; (statute of limitations) Waggoner
v. Feeney, 220 Ind. 543, 44 N.E.2d 499, 502.
of Farmingdale, Town of Babylon, Suffolk County, N. Y., D.C.N.Y., 43 F.Supp. 561, 567.
In old statutes and records, the term means prohibition; denial or refusal. Enconter le defense
et le commandement de Toy; against the prohibition and commandment of the king. St. Westm.
1, c. 1. Also a state of severalty, or of several or
exclusive occupancy; a state of inclosure.
In a stricter sense, defense is used to denote
the answer made by the defendant to the plaintiff's action, by demurrer or plea at law or answer in equity. This is the meaning of the term
in Scotch law. Ersk. Inst. 4, 1, 66. However, it
has been held that the filing of a demurrer is not
the making of a defense within meaning of the
statute providing that, if no defense be made,
the plaintiff cannot have judgment for any relief
not specifically demanded, but, if defense be made,
he may have judgment for other relief, under a
prayer therefor. Union Light, Heat & Power Co.
v. City of Bellevue, 284 Ky. 405, 144 S.W.2d 1046,
1047.
One which at first glance can be seen to be
merely pretensive, setting up some ground which
cannot be sustained by argument. Dominion
Nat. Bank v. Olympia Cotton Mills, C.C.S.C., 128
F. 182.
Half defense was that which was made by the form "defends the force and injury, and says," (defendit vim et injuriam, et dicit.)
Full defense was that which was made by . the form "defends the force and injury when and where it shall behoove
him, and the damages, and whatever else he ought to defend," (defendit vim et injuriam quando et ubi curia consideravit, et damna et quicquid quod ipse defendere debet,
et dicit,) commonly shortened into "defends the force and
injury when," etc. Gi1b.Com.P1. 188; 8 Term, 632; 3 Bos.
& P. 9, note; Co.Litt. 127b.
In matrimonial suits, in England, defenses are divided
into absolute, i. e., such as, being established to the satisfaction of the court, are a complete answer to the petition,
so that the court can exercise no discretion, but is bound
to dismiss the petition; and discretionary, or such as, being established, leave to the court a discretion whether it
will pronounce a decree or dismiss the petition. Thus, in
a suit for dissolution, condonation is an absolute, adultery
by the petitioner a discretionary, defense. Browne, Div.
30.
Defense is not something by means of which
party who interposes it can obtain relief for himself. Crisman v. Corbin, 169 Or. 332, 128 P.2d
959, 964.
Affidavit of Defense
See Affidavit.
Affirmative Defense
See that title.
Equitable Defense
See that title.
Frivolous Defense
Legal Defense
(1) A defense which is complete and adequate
in point of law. (2) A defense which may be
set up in a court of law; as distinguished from
an "equitable defense," which is cognizable only
in a court of equity or court possessing equitable
powers,
Meritorious Defense
One going to the merits, substance, or essentials of the case, as distinguished from dilatory
or technical objections. Cooper v. Lumber Co.,
61 Ark. 36, 31 S.W. 981.
Partial Defense
One which goes only to a part of the cause of
action, or which only tends to mitigate the damages to be awarded. Carter v. Bank, 33 Misc. 128,
67 N.Y.S. 300.
Peremptory Defense
A defense which insists that the plaintiff never
had the right to institute the suit, or that, if he
had, the original right is extinguished or determined. 4 Bouv. Inst. No. 4206.
Defense, as respects right to counsel to conduct
defense of one charged with crime, includes every
step in proceedings from time of arraignment until
acquittal or conviction. State v. Hudson, 55 R.I.
141, 179 A. 130, 135, 100 A.L.R. 313.
Personal Defense
In negotiable instruments law. A defense
which, though not good as against a holder in
due course, is good against certain parties, because of their participation in or knowledge of
certain transactions or facts from which such defense arises. Such defenses include all defenses
that are not real or absolute defenses. Bauer
and Simpson, Law of Business, 2d Ed., p. 329.
Defense also means the forcible repelling of an
attack made unlawfully with force and violence,
such as the defense of the nation in time of war.
United States v. 243.22 Acres of Land in Village
Pretermitted Defense
One which was available to a party and of
which he might have had the benefit if he had
508
DEFIANCE
pleaded it in due season, but which cannot afterwards be heard as a basis for affirmative relief.
Swennes v. Sprain, 120 Wis. 68, 97 N.W. 511.
Real Defense
In negotiable instruments law. A defense inherent in the res and therefore good against
anyone seeking to enforce the instrument, even a
holder in due course. Real defenses include illegality, incapacity, forgery, material alteration,
nondelivery of an incomplete instrument, and
fraud in the inception. These defenses are good
even against a holder in due course because,
where they exist, no contract was formed. Bauer
and Simpson, Law of Business, 2d Ed., p. 330.
Sham Defense
A false or fictitious defense, interposed in bad
faith, and manifestly untrue, insufficient, or irrelevant on its face.
Self Defense
See that title.
DEFENSE ACTIVITY. The performance of war
contracts by industry. The construction of implements of war. Any activity in aid of the war
effort. Equitable Trust Co. v. Bowles, Em.App.,
143 F.2d 735, 741.
DEFENSE AU FOND EN DROIT (called, also,
defense en droit). A demurrer. 2 Low. C. 278.
See, also, 1 Low. C. 216.
DEFENSE AU FOND EN FAIT. The general issue. 3 Low. C. 421.
DEFENSIVA. In old English law. A lord or
earl of the marches, who was the warden and defender of his country. Cowell.
DEFENSIVE ALLEGATION. In English ecclesiastical law. A species of pleading, where the defendant, instead of denying the plaintiff's charge
upon oath, has any circumstances to offer in his
defense. This entitles him, in his turn, to , the
plaintiff's answer upon oath, upon which he may
proceed to proofs as well as his antagonist. 3 Bl.
Comm. 100; 3 Steph. Comm. 720.
DEFENSIVE WAR. A war in defense of, or for
the protection of, national rights. It may be
defensive in its principles, though offensive in
its operations. 1 Kent, Comm. 50, note.
DEFENSO. That part of any open field or place
that was allotted for corn or hay, and upon which
there was no common or feeding, was anciently
said to be in defenso; so of any meadow ground
that was laid in for hay only. The same term
was applied to a wood where part was inclosed or
fenced, to secure the growth of the underwood
from the injury of cattle. Cowell.
In the Civil Law
A defender; one who assumed the defense of
another's case in court. Also an advocate. A
tutor or curator.
In Canon Law
The advocate or patron of a church. An officer who had charge of the temporalities of the
church.
In Old English Law
A guardian, defender, or protector. The defendant in an action. A person vouched in to warranty.
In General
Defensor civitatis. Defender or protector of a
city or municipality. An officer under the Roman
empire, whose duty it was to protect the people
against the injustice of the magistrates, the insolence of the subaltern officers, and the rapacity
of the money-lenders. Schm. Civil Law, Introd.
16; Cod. 1, 55, 4. He had the powers of a judge,
with jurisdiction of pecuniary causes to a limited
amount, and the lighter species of offenses. Cod.
1, 55, 1; Nov. 15, c. 3, § 2; Id. c. 6, § 1: He had
also the care of the public records, and powers
similar to those of a notary in regard to the execution of wills and conveyances.
Defensor fidei. Defender of the faith. See Defender.
DEFENSUM. A prohibition. An inclosure of
land; any fenced ground. Medley, Eng. Const.
Hist. See Defenso.
DEFER. Delay; put off; remand; postpone to
a future time. The term does not have, however,
the meaning of abolish, Moore v. Sampson County, 220 N.C. 232, 17 S.E.2d 22, 23, or omit, United
States v. Murine Co., C.C.A.Ill., 90 F.2d 549, 551.
DEFERRED LIFE ANNUITIES. In English
jaw. Annuities for the life of the purchaser, but
not commencing until a date subsequent to the
date of buying them, so that, If the purchaser die
before that date, the purchase money is lost.
Granted by the commissioners for reduction of
the national debt. See 16 & 17 Viet. c. 45, § 2.
Wharton.
DEFERRED PAYMENTS. Payments of principal
or interest postponed to a future time; installment payments; a method of paying insurance
proceeds. (Life insurance) Holmes v. John Hancock Mut. Life Ins. Co., 41 N.E.2d 909, 911, 288
N.Y. 106; (notes) First Nat. Bank v. Bosler, 297
Pa. 353, 147 A. 74, 75; (highway contract) Central
Tractor & Equipment Co. v. Betz, 63 S.D. 435, 260
N.W. 269; (will) In re Mitinger's Estate, 114 Pa.
Super. 209, 173 A. 432, 433.
DEFERRED SENTENCE. A sentence, the pronouncement of which has been postponed. It
does not operate as a suspension of sentence.
State v. Powell, 153 Wash. 110, 279 P. 573, 574.
DEFERRED STOCK. See Stock.
DEFIANCE. A contemptuous opposition or disregard openly expressed in words or action.
State v. Mohar, 168 Wash. 368, 13 P.2d 454, 455.
A provoking to combat, a challenge, a declaration of hostilities. Anderson-Berney Bldg. Co. v.
Lowry, Tex.Civ.App., 143 S.W.2d 401, 403.
509
DEFICIENCY
DEFICIENCY. A lack, shortage or insufficiency.
The amount by which the income tax imposed
exceeds the amount shown as the tax by the taxpayer upon his return. American Woolen Co. v.
United States, Ct.C1., 21 F.Supp. 1021, 1022.
That part of a debt secured by mortgage not
realized from sale of mortgaged property. Harrow v Metropolitan Life Ins. Co., 285 Mich. 349,
280 N.W. 785, 787. A judgment or decree for the
amount of such deficiency is called a "deficiency
judgment" or "decree." Phillips v. Union Central
Life Ins. Co.., C.C.A.Minn., 88 F.2d 188, 189 (judgment) ; Grace v. Hendricks, 103 Fla. 1158, 140 So.
790, 794 (decree).
Technically speaking, there is no such thing under our
law as a "deficiency judgment" in the sense that a formal
judgment of that description is rendered by the court, or
entered by the clerk for the amount not made by the sale
of the mortgaged property. There is only the original
judgment for the full amount of the indebtedness, upon
which a deficiency may exist after the issuance and return
of the special execution, or even perhaps of one or more
general executions in addition. It has nevertheless been
customary in ordinary parlance to refer to the amount still
due after the return of the special execution as a "deficiency judgment." Bank of Douglas v. Neel, 30 Ariz. 375, 247
P. 132, 134.
DEFICIENCY BILL. In parliamentary practice,
an appropriation bill covering items of expense
omitted from the general appropriation bill or
bills, or for which insufficient appropriations were
made. If intended to cover a variety of sFch
items, it is commonly called a "general deficiency
bill;" if intended to make provision for expenses
which must be met immediately, or which cannot
wait the ordinary course of the general appropriation bills, it is called an "urgent deficiency bill."
Deficiente uno sanguine non potest esse hares,
3 Coke, 41. One blood being wanting, he cannot
be heir. But see 3 & 4 Wm. IV. c. 106, § 9, and
33 & 34 Viet. c. 23, § 1.
DEFICIT. Something wanting, generally in the .
accounts of one intrusted with money, or in the
money received by him. Mutual L. & B. Ass'n v.
Price, 19 Fla. 135. The term is broad enough to
cover defalcation, misappropriation, shrinkage, or
costs, and, in its popular meaning, signifies deficiency from any cause. Clement v. Whisnant,
208 N.C. 167, 179 S.E. 430, 433, 101 A.L.R. 698.
DEFILE. To debauch, deflower, or corrupt the
chastity of a woman. The term does not necessarily imply force or ravishment, nor does it connote previous immaculateness. State v. Fernald,
88 Iowa, 553, 55 N.W. 534; State v. Besares, 73
Utah 141, 283 P. 738, 739. The term, when used
in a statute penalizing any person who shall publicly defile any flag of the United States, has the
meaning of dishonor. State v. Schlueter, 127 N.
J.L. 496, 23 A.2d 249, 251.
DEFILEMENT. Uncleanness; impurity; corruption of morals or conduct. Young v. State, 194
Ind. 221, 141 N.E. 309, 311,
DEFINE. To explain or state the exact meaning
of words and phrases; to state explicitly; to
limit; to determine essential qualities of; to de-
termine the precise signification of; to settle; to
establish or prescribe authoritatively; to make
clear. U. S. v. Smith, 5 Wheat. 160, 5 L.Ed. 57;
Walling v. Yeakley, C.C.A.Colo., 140 F.2d 830, 832;
Walters v. Richardson, 93 Ky. 374, 20 S.W. 279.
To declare that a certain act shall constitute an
offense is defining that offense. U. S. v. Arjona,
120 U.S. 488, 7 S.Ct. 628, 30 L.Ed. 728.
To "define" with respect to space, means to set
or establish its boundaries authoritatively; to
mark the limits of; to determine with precision
or to exhibit clearly the boundaries of; to determine the end or limit; to fix or establish the limits. It is the equivalent to declare, fix or establish. Seeking out what exists already is not "defining." Redlands Foothill Groves v. Jacobs, D.C.
Cal., 30 F.Supp. 995, 1004.
DEFINITE. Fixed, determined, defined, bounded.
Board of Sup'rs of Yavapai County v. Stephens,
20 Ariz. 115, 177 P. 261, 262; Kintner v. Atlantic
Communication Co., C.C.A.N.Y., 240 F. 716, 721.
A definite failure of issue occurs when a precise time is
fixed by a will for a failure of issue. An indefinite failure
of issue Is the period when the issue of the first taker shall
become extinct and when there shall no longer be any issue of the grantee, but without reference to a particular
ti me or event; Huxford v. Milligan, 50 Ind. 546; McWilliams v. Havely, 214 Ky. 320, 283 S.W. 103, 105.
DEFINITIO. Lat. Definition, or more strictly,
limiting or bounding; as in the maxim of the
civil law: Omnis definitio periculosa est, parum
est enim ut non subverti possit, ( Dig. 50, 17, 202;)
e., the attempt to bring the law within the
boundaries of precise definitions is hazardous, as
there are but few cases in which such a limitation
cannot be subverted.
DEFINITION. A description of a thing by its
properties; an explanation of the meaning of a
word or term. Webster. The process of stating
the exact meaning of a word by means of other
words. Worcester. See Warner v. Beers, 23
Wend., N.Y., 103; Marvin v. State, 19 Ind. 181.
Such a description of the thing defined, including
all essential elements and excluding all nonessential, as to distinguish it from all other things and
classes. Wilson v. Else, 204 Iowa 857, 216 N.W.
33, 37.
DEFINITIVE. That which finally and completely
ends and settles a controversy. A definitive sentence or judgment is put in opposition to an interlocutory judgment. Thompson v. Graham, 246
Pa. 202, 92 A. 118, 119; Interstate Electric Co. v.
Interstate Electric Co. of Shreveport, La.App., 6
So.2d 39, 40.
A distinction may be taken between a final and a definitive judgment. The former term is applicable when the
judgment exhausts the powers of the particular court in
which it is rendered; while the latter word designates a
judgment that is above any review or contingency of reversal. U. S. v. The Peggy, 1 Cranch, 103, 2 L.Ed. 49.
DEFINITIVE SENTENCE. The final judgment,
decree, or sentence of an ecclesiastical court. 3
Bl.Comm. 101.
DEFLECT. To turn aside, to deviate from a
straight or horizontal line or from a proper posi-
510
DEGREE
tion, to swerve, to deviate. Grip Nut Co. v. MacLean-Fogg Lock Nut Co., D.C.I11., 34 F.2d 41, 42.
DEFOSSION. The punishment of being buried
alive.
DEFLORATION. Seduction or debauching. The
act by which a woman is deprived of her virginity.
DEFRAUD. To practice fraud; to cheat or trick.
State v. Harroun, 199 Mo. 519, 98 S.W. 467, 470;
James v. State, 43 Ga.App. 324, 158 S.E. 644, 645.
To deprive a person of property or any interest,
estate, or right by fraud, deceit, or artifice. State
v. Vandenburg, 9 W.W.Harr. 498, 2 A.2d 916, 919.
But not by force or intimidation. Hammerschmidt v. U. S., 265 U.S. 182, 44 S.Ct. 511, 68 L.
Ed. 968; Norton v. U. S., C.C.A.Cal., 92 F.2d 753,
756.
DEFORCE.
In English Law
To withhold wrongfully; to withhold the possession of lands from one who is lawfully entitled
to them. 3 Bl.Comm. 172; Phelps v. Baldwin, 17
Conn. 212.
In Scotch Law
To resist the execution of the law; to oppose
by force a public officer in the execution of his
duty. Bell.
DEFRAUDACION. In Spanish law. The crime
committed by a person who fraudulently avoids
the payment of some public tax.
DEFRAUDATION. Privation by fraud.
DEFORCEMENT. Deforcement is where a man
wrongfully holds lands to which another person
is entitled. It therefore includes disseisin, abatement, discontinuance, and intrusion. Co. Litt.
277b, 331b; Hopper v. Hopper, 21 N.J.L. 543. But
it is applied especially to cases, not falling under
those heads, where the person entitled to the freehold has never had possession; thus, where a lord
has a seignory, and lands escheat to him propter
defectum sanguinis, but the seisin is withheld
from him, this is a deforcement, and the person
who withholds the seisin is called a "deforceor."
3 Bl.Comm. 172.
DEFUNCT. Deceased; a deceased person. A
common term in Scotch law. A corporation which
has ceased to function. Tozier v. Woodworth, 135
Me. 46, 188 A. 771, 773.
The term is synonymous with "dead." Farmers
Union Co-op. Brokerage v. Palisade Farmers Union Local No. 714, 69 S.D. 126, 7 N.W.2d 293, 295.
DEFUNCTUS. Lat. Dead. "Defunctus sine
prole," dead without (leaving) issue.
DEGASTER. L. Fr. To waste.
In Scotch Law
DEGRADATION. A deprivation of dignity; dismission from office. An ecclesiastical censure,
whereby a clergyman is divested of his holy orders. There are two sorts by the canon law,
one summary, by word only; the other solemn,
by stripping the party degraded of those ornaments and rights which are the ensigns of his
degree. Degradation is otherwise called "deposition," but the canonists have distinguished between these two terms, deeming the former as
the greater punishment of the two. There is likewise a degradation of a lord or knight at common
law, and also by act of parliament. Wharton.
The opposition or resistance made to messengers or other public officers while they are actually engaged in the exercise of their offices. Ersk.
Inst. 4, 4, 32.
DEFORCIANT. One who wrongfully keeps the
owner of lands and tenements out of the possession of them. 2 Bl.Comm. 350.
DEFORCIARE. L. Lat. To withhold lands or
tenements from the rightful owner. This is a
word of art which cannot be supplied by any other
word. Co. Litt. 331b.
DEGRADATIONS. A term for waste in the
French law.
DEFORCIATIO. L. Lat. In old English law. A.
distress, distraint, or seizure of goods for satisfaction of a lawful debt. Cowell.
DEGRADING. Reviling; holding one up to public obloquy; lowering a person in the estimation
of the public.
DEFORMITY. A deformed or misshapen condition; an unnatural growth, or a distorted or misshapen part or member; disfigurement; as a bodily deformity. People v. Lehrman, 251 App.Div.
451, 296 N.Y.S. 580, 582.
DEGREE.
In General
In insurance. Representations in application for
insurance that applicant never had any "infirmity"
or "deformity" must be construed as meaning deformity or infirmity of substantial character apparently materially impairing applicant's health,
which, if known, probably would have deterred
company from issuing policy. (Life insurance)
Eastern Dist. Piece Dye Works v. Travelers' Ins.
Co., 234 N.Y. 441, 138 N.E. 401, 404, 405, 26 A.L.R.
1505; (accident insurance) Commercial Casualty
Ins. Co. v. Mathews, 57 Ga.App. 446, 195 S.E. 887,
892.
The state or civil condition of a person, State v.
Bishop, 15 Me. 122; An honorable state or condition to which a student is advanced in testimony
of proficiency in arts and sciences. Commonwealth v. New England College of Chiropractic,
221 Mass. 190, 108 N.E. 895, 896; The grade or distance one thing may be removed from another.
Superior Lloyds of America v. Foxworth, Tex.
Civ.App., 178 S.W.2d 724, 725.
They are of pontifical origin. See 1 Schmidt, Thesaurus,
144; Vicat, Doctores; Minshew, Diet. Bacheler; Merlin
Repertoire Univ.; Van Espen. pt. 1, tit. 10; Giannone,
Istoria di Napoli, lib. xi. c. 2, for a full account of this
matter.
511
DEGREE
In the Law of Descent and Family Relations
A step or grade, i. e., the distance, or number of
removes, which separates two persons who are related by consanguinity. Thus we speak of a brother as being in the second degree of kindred.
Calvert v. Beck, 240 Ala. 442, 199 So. 846, 847.
In Criminal Law
The term "degree" denotes a division or classification of one specific crime into several grades
or stadia of guilt, according to the circumstances
attending its commission. Thus, in some states,
there may be "murder in the second degree."
DEHORNER. A rubbing alcohol addict. Powell
v. State, 179 Md. 399, 18 A.2d 587, 590.
DEHORS. L. Fr. Out of; without; beyond;
foreign to; unconnected with. Blackford v. Anderson, 226 Iowa 1138, 286 N.W. 735, 746. Dehors
the record; foreign to the record. 3 Bl.Comm.
387.
DEHYDRATE. To deprive or to be free of water
or elements of water or to suffer loss of water.
In re Benner, Cust. & Pat.App., 46 F.2d 383, 384.
DEI GRATIA. Lat. By the grace of God. A
phrase used in the formal title of a king or queen,
importing a claim of sovereignty by the favor or
commission of God. In ancient times it was incorporated in the titles of inferior officers, (especially ecclesiastical,) but in later use was reserved
as an assertion of "the divine right of kings."
DEI JUDICIUM. The judgment of God. The old
Saxon trial by ordeal, so called because it was
thought to be an appeal to God for the justice of
a cause, and it was believed that the decision was
according to the will and pleasure of Divine Providence. Wharton.
DEJACION. In Spanish law. Surrender; release; abandonment; e. g., the act of an insolvent
in surrendering his property for the benefit of his
creditors, of an heir in renouncing the succession,
the abandonment of insured property to the underwriters.
DEJERATION. A taking of a solemn oath.
DEL BIEN ESTRE. L. Fr. In old English practice. Of well being; of form. The same as de
bene esse. Britt. c. 39.
DEL CREDERE. In mercantile law. A phrase
borrowed from the Italians, equivalent to our
word "guaranty" or "warranty," or the Scotch
term "warrandice;" an agreement by which a
factor, when he sells goods on credit, for an additional commission, (called a "del credere commission,") guaranties the solvency of the purchaser
and his performance of the contract. Such a factor is called a "del credere agent" He is a mere
surety, liable to his principal only in case the
purchaser makes default. Story, Ag. 28; Lemnos
Broad Silk Works v. Spiegelberg, 217 N.Y.S. 595,
597, 127 Misc. 855; Commercial Investment Trust
v. Stewart, 235 Mich. 502, 209 N.W. 660, 661; Com-
monwealth v. Thorne, Neale & Co., 264 Pa. 408,10?
A. 814, 815; State v. Tuffs, 54 Mont. 20, 165 P. 1107,
1108.
DELAISSEMENT. In French marine law. Abandonment. Emerig. Tr. des Ass. ch. 17.
DELATE. In Scotch law. To accuse. Delated,
accused. Delatit off arte and parte, accused of
being accessary to. 3 How. St. Tr. 425, 440.
DELATIO. In the civil law. An accusation or
information.
DELATOR. An accuser; an informer; a sycophant.
DELATURA. In old English law. The reward
of an informer. Whishaw.
DELAY. To retard; obstruct; put off; postpone*,
defer; procrastinate; prolong the time of or before; hinder; interpose obstacles; as, when it is
said that a conveyance was made to "hinder and
delay creditors." Mercantile Co. v. Arnold, 108
Ga. 449, 34 S.E. 176; Ellis v. Valentine, 65 Tex.
532; Blair v. Blair, 122 Me. 500, 120 A. 902, 905.
The term does not imply dishonesty or involve
moral wrong. Citizens & Southern Nat. Bank v.
Kontz, 185 Ga. 131, 194 S.E. 536, 544.
DELAY RENTAL. Rent, usually on oil and gas
leases, paid for additional time in which to utilize
land. It does not depend on oil or gas produced,
does not exhaust substance of land, and resembles
a bonus payment, which is an advance royalty.
Commissioner of Internal Revenue v. Wilson, C.
C.A.Tex., 76 F.2d 766, 769; State v. Magnolia Petroleum Co., Tex.Civ.App., 173 S.W.2d 186, 190.
DELECTUS PERSONAE. Lat. Choice of the person. Johnston v. Winn, Tex.Civ.App., 105 S.W.2d
398, 400. By this term is understood the right
of a partner to exercise his choice and preference
as to the admission of any new members to the
firm, and as to the persons to be so admitted, if
any. People v. Herbert, 162 Misc. 817, 295 N.Y.S.
251, 253. The doctrine does not apply to corporations. Adams v. St. Clair, 185 Miss. 416, 188 So.
559, 560.
In Scotch Law
The personal preference which is supposed to
have been exercised by a landlord in selecting his
tenant, by the members of a firm in making choice
of partners, in the appointment of persons to office, and other cases. Nearly equivalent to personal trust, as a doctrine in law. Bell.
Delegata potestas non potest delegari. 2 Inst.
597. A delegated power cannot be delegated.
DELEGATE. A person who is delegated or commissioned to act in the stead of another, Landro
v. Pacific Atlantic S. S. Co., D.C.Wash., 30 F.Supp.
538, 539; a person to whom affairs are committed
by another; an attorney.
A person elected or appointed to be a member
of a representative assembly. Usually spoken of
one sent to a special or occasional assembly or
512
DELIBERATE
DELETE. In Scotch law. To erase; to strike
out.
convention. Manston v. McIntosh, 58 Minn. 525, 60
N.W. 672, 28 L.R.A. 605.
The representative in congress of one of the
organized territories of the United States. To
send as an agent or representative; to commit to
the care or management of another.
DELETERIOUS. Hurtful, morally or physically;
injurious, as influence; poisonous; unwholesome.
State v. Crabtree Co., 218 Minn. 36, 15 N.W.2d 98.
Thus struvite crystals which developed in jar of wet
shrimp after packing, O'Hare v. Petersen, 174 Misc. 48-t,
21 N.Y.S.2d 487, 491, and bones in fish and fragments of
shell in oysters constitute "deleterious substances". United States v. 1232 Cases American Beauty Brand Oysters,
D.C.Mo., 43 F.Supp. 749, 751.
DELEGATES, THE HIGH COURT OF. In English law. Formerly the court of appeal from the
ecclesiastical and admiralty courts. Abolished upon the judicial committee of the privy council being constituted the court of appeal in such cases.
DELF. A quarry or mine. 31 Eliz. c. 7.
Deliberandum est diu quod statuendum est
semel. 12 Coke, 74. That which is to be resolved
once for all should be long deliberated upon.
DELEGATION. A sending away; a putting into
commission; the assignment of a debt to another;
the intrusting another with a general power to
act for the good of those who depute him; a body
of delegates.
DELIBERATE, v. To weigh, ponder, discuss, regard u p on, consider. Cole v. List & Weatherly
Const. Co., La.App., 156 So. 88, 90. To examine,
to consult, in order to form an opinion. McGregor
v. State, 83 Tex.Cr.R. 35, 201 S.W. 184, 186. To
weigh in the mind; to consider the reasons for
and against; to consider maturely; reflect upon;
as to deliberate a question; to weigh the arguments for and against a proposed course of action. People v. Thomas, 25 Ca1.2d 880, 156 P.2d
7, 17, 18.
At Common Law
The transfer of authority by one person to another; the act of making or commissioning a delegate.
The whole body of delegates or representatives
sent to a convention or assembly from one district, place, or political unit are collectively spoken of as a "delegation."
In the Civil Law
A species of novation which consists in the
change of one debtor for another, when he who is
indebted substitutes a third person who obligates
himself in his stead to the creditor, or to the person appointed by him so that the first debtor is
acquitted and his obligation extinguished, and the
creditor contents himself with the obligation of
the second . debtor. Delegation is essentially distinguished from any other species of novation,
in this: that the former demands the consent of
all three parties, but the latter that only of the
two parties to the new debt. 1 Domat, § 2318;
Adams v. Power, 48 Miss. 454.
Delegation is novation effected by the intervention of another person whom the debtor, in order
to be liberated from his creditor, gives to such
creditor, or to him whom the creditor appoints;
and such person so given becomes obliged to the
creditor in the place of the original debtor.
Burge, Sur. 173.
Perfect delegation exists when the debtor who makes the
obligation is discharged by the creditor.
Imperfect delegation exists when the creditor retains his
rights against the original debtor. 2 Duvergnoy, n. 169.
Delegatus non potest delegare. A delegate cannot delegate; an agent cannot delegate his functions to a subagent without the knowledge or consent of the principal; the person to whom an office
or duty is delegated cannot lawfully devolve the
duty on another, unless he be expressly authorized
so to do. 9 Coke, 77; Broom, Max. 840; 2 Kent,
Comm. 633; 2 Steph.Comm. 119; Blake v. Allen,
221 N.C. 445, 20 S.E.2d 552, 554.
DELESTAGE. In French marine law. A discharging of ballast (lest) from a vessel.
Black's Law Dictionary Revised 4th Ed.-33
DELIBERATE, adj. Well advised; carefully considered; not sudden or rash; circumspect; slow
in determining. McClendon v. Louisiana Cent.
Lumber Co., 17 La.App. 246, 135 So. 754, 756.
Willful rather than merely intentional. Cole v.
List & Weatherly Const. Co., La.App., 156 So. 88,
90. Formed, arrived at, or determined upon as a
result of careful thought and weighing of considerations, as a deliberate judgment or plan;
carried on coolly and steadily, especially according to a preconceived design; given to weighing
facts and arguments with a view to a choice or
decision; careful in considering the consequences
of a step; slow in action; unhurried; characterized by reflection; dispassionate; not rash. People v. Thomas, 25 Ca1.2d 880, 156 P.2d 7, 17, 18.
The word carries with it an implication of some
obstinacy, headstrongness, foolish daring, or intentional wrongdoing. Brown v. Kansas City
Bridge Co., La.App., 191 So. 755, 757.
By the use of this word, in describing a crime, the idea
is conveyed that the perpetrator weighs the motives for the
act and its consequences, the nature of the crime, or other
things connected with his intentions, with a view to a decision thereon; that he carefully considers all these; and
that the act is not suddenly committed. It implies that the
perpetrator must be capable of the exercise of such mental
powers as are called into use by deliberation and the consideration and weighing of motives and consequences. In
re Nunns, 188 App.Div. 424, 176 N.Y.S. 858, 865; Jenkins
v. Carman Mfg. Co., 79 Or. 448, 155 P. 703, 705.
"Deliberation" and "premeditation" are of the same character of mental operations, differing only in degree. Deliberation is but prolonged premeditation. In othe'- words,
in law, deliberation is premeditation in a cool state of the
blood, or, where there has been heat of passion, it is premeditation continued beyond the period within which there
has been time for the blood to cool, in the given case. Deliberation is not only to think of beforehand, which may
be but for an instant, but the inclination to do the act is
considered, weighed, pondered upon, for such a length of
time after a provocation is given as the jury may find was
sufficient for the blood to cool. One in a heat of passion
513
DELIBERATELY
may premeditate without deliberating. Deliberation is
only exercised in a cool state of the blood, while premeditation may be either in that state of the blood or in the heat
of passion. State v. Hall, 40 N.M. 128, 55 P.2d 740, 742;
People v. Thomas, 25 Ca1.2d 880, 156 P.2d 7, 17; State v.
Payne, 213 N. C. 719, 197 S.E. 573, 579.
DELIBERATELY. Willfully; with premeditation;
intentionally; purposely; in cold blood. Averheart v. State, 158 Ark. 639, 238 S.W. 620, 621;
State v. Young, 314 Mo. 612, 286 S.W. 29, 34;
Csanyi v. Csanyi, 93 N.J.Eq. 11, 115 A. 76, 78;
State v. Johnson, 92 Kan. 441, 140 P. 839, 840.
DELIBERATION. The act or process of deliberating. The act of weighing and examining the reasons for and against a contemplated act or course
of conduct or a choice of acts or means. See Deliberate.
DELICATESSEN. Prepared foods, such as cooked
meats, relishes, preserves and the like. North
Ave. Market v. Keys, 164 Md. 185, 164 A. 152, 154.
Also, a store that sells such prepared foods. Parker v. Levin, 285 Mass. 125, 188 N.E. 502, 503, 90 A.
L.R. 1446.
Delicatus debitor est odiosus in lege. A luxurious debtor is odious in law. 2 Bulst. 148. Imprisonment for debt has now, however, been generally
abolished.
DELICT. In the Roman and civil law. A wrong
or injury; an offense; a violation of public or
private duty.
It will be observed that this word, taken in its most general sense, is wider in both directions than our English
term "tort." On the one hand, it includes those wrongful
acts which, while directly affecting some individual or his
property, yet extend in their injurious consequences to the
peace or security of the community at large, and hence rise
to the grade of crimes or misdemeanors. These acts were
termed in the Roman law "public delicts;" while those
for which the only penalty exacted was compensation to
the person primarily injured were denominated "private
delicts." On the other hand, the term appears to have
included injurious actions which transpired without any
malicious intention on the part of the doer. Thus Pothier
gives the name "quasi delicts" to the acts of a person who,
without malignity, but by an inexcusable imprudence,
causes an injury to another. Poth.Obl. 116. But the term
is used in modern jurisprudence as a convenient synonym
of "tort."
Quasi Delict
An act whereby a person, without malice, but by fault,
negligence, or imprudence not legally excusable, causes
injury to another. They were four in number, viz.: (1)
Qui judex Went suam fecit, being the offense of partiality
or excess in the judex, (juryman.) (2) Dejecturn effusumve
aliquid, being the tort committed by one's servant in
emptying or throwing something out of an attic or upper
story upon a person passing beneath. (3) Darnnurn infecturn, being the offense of hanging dangerous articles over
the heads of persons passing along the king's highway.
(4) Torts committed by one's agents in the course of
their employment. Brown.
DELICTUAL FAULT. An act, productive of obligations, which takes place between persons juridically strangers to each other; it supposes the
absence of obligation and its result is the creation
of one. Reserve Ins. Co. v. Fabre, 149 So.2d 413,
416, 243 La. 982.
DELICTUM. Lat. A delict, tort, wrong, injury,
or offense. Actions ex delicto are such as are
founded on a tort, as distinguished from actions
on contract.
Culpability, blameworthiness, or legal delinquency. The word occurs in this sense in the
maxim, "In pari delicto melior est conditio defendentis" ( which see).
A challenge of a juror propter delictum is for
some crime or misdemeanor that affects his credit
and renders him infamous. 3 Bl.Comm. 363; 2
Kent, Comm. 241.
DELIMIT. To mark or lay out the limits or
boundary line of a territory or country; to fix or
to mark the limits of; to demarcate; bound.
Walling v. Yeakley, C.C.A.Colo., 140 F.2d 830, 832.
DELIMITATION. The act of fixing, marking off,
or describing the limits or boundary line of a
territory, country, authority, right, statutory exception or the like. See Delimit.
DELINQUENCY. Failure, omission, violation of
duty. State or condition of one who has failed to
perform his duty. Travelers' Protective Ass'n of
America v. Ziegler, Tex.Civ.App., 250 S.W. 1115,
1116; Robinson v. Miller, 317 . Ill. 501, 148 N.E.
319, 322. Synonymous with misconduct and offense. Boynton Cab Co. v. Neubeck, 237 Wis. 249,
296 N.W. 636, 639.
Delinquens per iram provocatus puniri debet mitius. 3 Inst. 55. A delinquent provoked by anger
ought to be punished more mildly.
DELINQUENT, n. In the civil law. He who has
been guilty of some crime, offense, or failure of
duty.
DELINQUENT, adj. As applied to a debt or
claim, it means simply due and unpaid at the time
appointed by law or fixed by contract; as, a delinquent tax. Chauncey v. Wass, 35 Minn. 1, 30
N.W. 826; Gallup v. Schmidt, 154 Ind. 196, 56 N.
E. 450. As applied to a person, it commonly
means that he is grossly negligent or in willful
default in regard to his pecuniary obligations, or
even that he is dishonest and unworthy of credit.
Boyce v. Ewart, Rice S. C., 140; Ferguson v. Pittsburgh, 159 Pa. 435, 28 Atl. 118; Grocers' Ass'n v.
Exton, 18 Ohio Cir.Ct.R. 321.
DELINQUENT CHILD. An infant of not more
than specified age, Phillips v. State, Tex.Cr.App.,
20 S.W.2d 790, 791, who has violated any law or
who is incorrigible; (prostitute) Bolker v. State,
134 Neb. 255, 278 N.W. 377, 379; (thief) Rose v.
State, 137 Tex.Cr.R. 316, 129 S.W.2d 639, 640;
(felony) State v. Connally, 190 La. 175, 182 So.
318, 319.
Although the terms dependent child and delinquent child, as used in juvenile court law, are
largely synonymous, State v. Clevenger, 161 Wash.
306, 296 P. 1054; a neglected and dependent child
is not necessarily a delinquent child. In re Santillanes, 47 N.M. 140, 138 P.2d 503, 513.
DELINQUENT JUVENILE. See Delinquent
Child.
514
DELIVERY
DELINQUENT TAXES. Past due and unpaid taxes. Ryan v. Roach Drug Co., 113 Okl. 130, 239 P.
912, 918; Cornell v. Maverick Loan & Trust Co.,
95 Neb. 9, 144 N.W. 1072, 1074.
DELIRIUM. In medical jurisprudence. Delirium
is that state of the mind in which it acts without
being directed by the power of volition, which is
wholly or partially suspended. This happens most
perfectly in dreams. But what is commonly called "delirium" is always preceded or attended by a
feverish and highly diseased state of the body.
The patient in delirium is wholly unconscious of
surrounding objects, or conceives them to be different from what they really are. His thoughts
seem to drift about, wildering and tossing amidst
distracted dreams. And his observations, when
he makes any, as often happens, are wild and incoherent; or, from excess of pain, he sinks into a
low muttering, or silent and death-like stupor.
The law contemplates this species of mental derangement as an intellectual eclipse; as a darkness occasioned by a cloud of disease passing over
the mind; and which must soon terminate in
health or in death. Supreme Lodge v. Lapp, 25
Ky.Law Rep. 74, 74 S.W. 656; Sommerville v.
Greenhood, 65 Mont. 101, 210 P. 1048, 1054; Grand
Lodge, A. 0. U. W. of Arkansas, v. Mode, 157 Ark.
62, 247 S.W. 386, 388; (distinguished from insane
delusion) Schoenhoff v. Haering, 327 Mo. 837, 38
S.W.2d 1011, 1015.
DELIRIUM FEBRILE. In medical jurisprudence.
A form of mental aberration incident to fevers,
and sometimes to the last stages of chronic diseases.
DELIRIUM TREMENS. A disorder of the nervous system, involving the brain and setting up
an attack of temporary delusional insanity, sometimes attended with violent excitement or mania,
caused by excessive and long continued indulgence
in alcoholic liquors, or by the abrupt cessation of
such use after a protracted debauch. Horn v.
Commonwealth, 292 Ky. 587, 167 S.W.2d 58, 61;
Hartin v. Hysee Inghram Tire Co., 153 Pa.Super.
121, 33 A.2d 471, 473. See Insanity.
DELITO. In Spanish law. Crime; a crime, offense, or delict. White, New Recop. b. 2, tit. 19,
c. 1, § 4.
DELIVERANCE. In practice. The verdict, rendered by a jury.
Second Deliverance
In practice. A writ allowed a plaintiff in replevin, where the defendant has obtained judgment for return of the goods, by default or nonsuit, in order to have the same distress again delivered to him, on giving the same security as before. 3 Bl.Comm. 150; 3 Steph.Comm. 668.
DELIVERY. The act by which the res or substance thereof is placed within the actual or constructive possession or control of another. Poor
v. American Locomotive Co., C.C.A.I11., 67 F.2d
626, 630.
What constitutes delivery depends largely on
the intent of the parties. It is not necessary that
delivery should be by manual transfer. Miller v.
Hospelhorn, 176 Md. 356, 4 A.2d 728, 733.
"Delivery" required in conveyance of personal qhattels
as against all but vendor, is delivery in its natural sense ;
that is, a change of possession. Goodhue v. State St. Trust
Co., 267 Mass. 28, 165 N.E. 701, 705.
In General
The transfer from one person to another of the
res or a right or interest therein, which means
more than physical transfer of possession, Murphy v. Smith, 291 Mass. 93, 195 N.E. 912; Pure
Oil Co. v. Evans, 369 Ill. 416, 17 N.E.2d 23, 24.
Although in the popular sense, in the case of a
contract or lease or the like, it implies a transfer of the tangible contract. Lease, Roberts v.
Cyr, 136 Me. 39, 1 A.2d 281, 282; release for injury, Pevesdorf v. Union Electric Light & Power
Co., 333 Mo. 1155, 64 S.W.2d 939; check, Irving
Trust Co. v. Leff, 253 N.Y. 359, 171 N.E. 569; bank
passbook, Brooks v. Mitchell, 163 Md. 1, 161 A.
261, 266, 84 A.L.R. 547.
Absolute and conditional. An absolute delivery,
as distinguished from conditional delivery or delivery in escrow, is one which is complete upon
the actual transfer of the instrument from the
possession of the grantor. Dyer v. Skadan, 128
Mich. 348, 87 N.W. 277, 278, 92 Am.St.Rep. 461. A
conditional delivery is one which passes the thing
subject to delivery from the possession of the
grantor, but is not to be completed by possession
of the grantee, or a third person as his agent, until the happening of a specified event. Silliman v.
Dobner, 165 Minn. 87, 205 N.W. 696, 697.
Actual and constructive. Actual delivery consists
in the giving real possession to the vendee or his
servants or special agents who are identified with
him in law and represent him. Carr v. St. LouisSan Francisco Ry. Co., Mo.App., 284 S.W. 184, 185.
It is a formal immediate tradition of the property to the vendee. Bridgham v. Hinds, 120 Me.
444, 115 A. 197, 199, 21 A.L.R. 1024. It contemplates a manual transfer of the property. Callan
v. Mutual Life Ins. Co., La.App., 147 So. 110, 111.
Constructive delivery is a general term, comprehending all those acts which, although not truly
conferring a real possession of the thing sold on
the vendee, have been held, by construction of law,
equivalent to acts of real delivery.
Constructive delivery includes symbolic or substituted
delivery and all those traditiones fictce which have been
admitted into the law as sufficient to vest the absolute
property in the vendee and bar the rights of lien and stoppage in transitu, such as marking and setting apart the
goods as belonging to the vendee, charging him with warehouse rent, etc. See In re Nesto, C.C.A.Pa., 270 F. 503.
A constructive delivery of personalty takes place when the
goods are set apart and notice given to the person to whom
they are to be delivered. The Titania, C.C.A., 131 F. 229,
65 C.C.A. 215, or when, without actual transfer of the goods
or their symbol, the conduct of the parties is such as to be
inconsistent with any other supposition than that there has
been a change In the nature of the holding. Swafford v.
Spratt, 93 Mo.App. 631, 67 S.W. 701.
Delivery bond. A bond given upon the seizure of
goods (as under the revenue laws) conditioned for
515
DELIVERY
their restoration to the defendant, or the payment
of their value, if so adjudged.
Delivery order. An order addressed, in England,
by the owner of goods to a person holding them
on his behalf, requesting him to deliver them to a
person named in the order. Delivery orders are
chiefly used in the case of goods held by dock
companies, wharfingers, etc. National Wholesale
Grocery Co. v. Mann, 251 Mass. 238, 146 N.E. 791,
793.
Failure to make delivery, see Failure to Make
Delivery.
Second delivery. The legal delivery by the depositary of a deed placed in escrow. Thornhill v.
Olson, 31 N.D. 81, 153 N.W. 442, 445, L.R.A.1916A,
493, Ann.Cas.1917E, 427.
Symbolical delivery. The constructive delivery of
the subject-matter of a sale, where it is cumbersome or inaccessible, by the actual delivery of
some article which is conventionally accepted as
the symbol or representative of it, or which renders access to it possible, or which is the evidence
of the purchaser's title to it; as the key of a
warehouse, or a bill of lading of goods on shipboard. Hall v. Kansas City Terra Cotta Co., 97
Kan. 103, 154 P. 210, 212, L.R.A.1916D, 361, Ann.
Cas.1918D, 605.
with an opinion, however fantastic .the latter may
be. Guiteau's Case, D.C.D.C., 10 Fed. 161, 170;
Davidson v. Piper, 221 Iowa 171, 265 N.W. 107, 109;
McKinnon v. State, 51 Ga.App. 549, 181 S.E. 91;
Hallucination as a delusion, Petroleum Casualty
Co. v. Kincaid, Tex.Civ.App., 93 S.W.2d 499, 501;
belief in the impossible, In re Leedom's Estate,
347 Pa. 180, 32 A.2d 3; as respects testamentary
capacity, In re McDowell's Estate, 103 N.J.Eq. 346,
143 A. 325, 326.
Systematized Delusion
One based on a false premise, pursued by a
logical process of reasoning to an insane conclusion; there being one central delusion around
which other aberrations of the mind converge;
Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405.
See Insanity.
DEM. An abbreviation for "demise;" e. g., Doe
dem. Smith, Doe, on the demise of Smith.
DEMAIN. See Demesne.
DEMAND, v. In practice. To claim as one's due;
to require; to ask relief. To summon; to call in
court. "Although solemnly demanded, comes not,
but makes default." Fossett v. State, 34 Okl.Cr.
106, 245 P. 668, 669.
In Conveyancing
The final and absolute transfer of a deed, properly executed, to the grantee, or to some person
for his use, in such manner that it cannot be recalled by the grantor. Gatchell v. Gatchell, 127
Me. 328, 143 A. 169, 170; Arndt v. Lapel, 214 Iowa
594, 243 N.W. 605, 610; delivery to a stranger,
Hall v. Hall, 292 Ky. 772, 168 S.W.2d 10, 14; or
depositary, Stalting v. Stalting, 52 S.D. 309, 217
N.W. 386, 389.
In Law of Sales
The tradition or transfer of the possession of
personal property from one person to another.
Bowles v. Beucher, D.C.Mass., 53 F.Supp. 984, 987;
delivery of a bill of sale or written evidence of
title as sufficient delivery, Smith v. Acorn, D.C.
Mun.App., 32 A.2d 252, 255; by carrier, Rice &
Lockwood Lumber Co. v. Boston & M. R. R., 308
Mass. 101, 31 N.E.2d 219, 221, 222, 223.
"Delivery" occurs whenever, at time and place fixed by
law or agreed on by parties, seller does everything necessary to put goods completely and unconditionally at
buyer's disposal. Fox v. Young, Tex.Civ.App., 91 S.W.2d
857, 859.
In Medical Jurisprudence
The act of a woman giving birth to her offspring. Blake v.-Junkins, 35 Me. 433.
DELUSION. In medical jurisprudence. An insane delusion is an unreasoning and incorrigible
belief in the existence of facts which are either
impossible absolutely, or, at least, impossible under the circumstances of the individual. It is
never the result of reasoning and reflection; it is
not generated by them, and it cannot be dispelled
by them; and hence it is not to be confounded
DEMAND, n. A peremptory claim to thing of
right, differing from claim, in that it presupposes
that there is no defense or doubt upon question of
right, Golden v. Golden, 155 Oki. 10, 8 P.2d 42, 45;
Anderson v. Commercial Credit Co., 110 Mont.
333, 101 P.2d 367, 369; National Life & Accident
Ins. Co. v. Dove, 141 Tex. 464, 174 S.W.2d 245, 247.
The assertion of a legal right; a legal obligation asserted in the courts; a word of art of an
extent greater in its signification than any other
word except "claim." Nunn v. Titche-Goettinger
Co., Tex.Civ.App., 196 S.W. 890, 892. Demand
for payment. Peterson v. Rodgers, 51 Ariz. 502,
78 P.2d 480, 482; assessment upon corporate stock
of deceased. Smith v. Fechheimer, 124 Fla. 757,
169 So. 395, 398; presentment of statement, Davison v. Klaess, 280 N.Y. 252, 20 N.E.2d 744, 746.
However, under some statutes "demand" has a
more restricted meaning. Hillside Securities Co.
v. Minter, 300 Mo. 380, 254 S.W. 188, 193.
A debt or amount due. Inhabitants of Town
of Frankfort v. Waldo Lumber Co., 128 Me. 1,
145 A. 241, 243; Caldwell v. Morfa, D.C.Tex., 24
F.2d 106, 107.
An imperative request preferred by one person
to another, under a claim of right, requiring the
latter to do or yield something or to abstain from
some act. Zimmerman v. Hicks, C.C.A., 7 F.2d
443, 445; Norwood Nat. Bank v. Piedmont Pub.
Co., 106 S.C. 472, 91 S.E. 866, 867; school district's
request that depositary honor checks for salaries.
School District of City of Lansing v. Fidelity &
Casualty Co. of New York, 266 Mich. 189, 253 N.W.
263; demand for extradition, Ex parte King, 139
Me. 203, 28 A.2d 562, 564.
516
DEMESNE
The seeking after a commodity or service. It
is not something static, but necessarily contains
the idea of "competition" and a realization that
markets are as much limited by sales efforts as
by capacity to produce. Mendota Coal & Coke
Co. v. Eastern Ry. & Lumber Co., C.C.A.Wash.,
53 F.2d 77, 82.
DEMANDA. In Spanish law. The petition of a
plaintiff, setting forth his demand. Las Partidas,
pt. 3, tit. 10, 1. 3.
— Compulsory demand. "Compulsory demand"
by the true owner of an article, justifying surrender and recovery by the one who surrenders it
as against his vendor, means when the true owner
presents his claim and establishes his paramount
title. Jordan v. Van Duzee, 139 Minn. 103, 165
N.W. 877, 879, L.R.A. 1918B, 1136.
DEMEANOR. As respects a witness or other
person, relates to physical appearance. People
v. Vaughan, 131 Cal.App. 265, 21 P.2d 438. It embraces such facts as the tone of voice in which a
witness' statement is made, the hesitation or readiness with which his answers are given, the look
of the witness, his carriage, his evidences of surprise, his gestures, his zeal, his bearing, his expression, his yawns, the use of his eyes, his furtive
or meaning glances, or his shrugs, the pitch of his
voice, his self-possession or embarrassment, his
air of candor or seeming levity. Rains v. Rains,
17 N.J.Misc. 310, 8 A.2d 715, 717.
DEMANDANT. The plaintiff or party suing in
a real action. Co. Litt. 127.
DEMANDRESS. A female demandent.
— Cross-demand. A demand that is preferred by
one party to an action in opposition to a demand
already preferred against him by his adversary.
Drovers' State Bank v. Elliott, 97 Kan. 64, 154 P.
255, 256.
—Demand in reconvention. A demand which the
defendant institutes in consequence of that which
the plaintiff has brought against him. Used in
Louisiana. Equivalent to a "counterclaim" elsewhere. McLeod v. Bertschey, 33 Wis. 177, 14 Am.
Rep. 755.
—Demand note. A note that is due at once; one
on which suit may be brought without any formal
demand. Wilson v. Stark, 146 Miss. 498, 112 So.
390, 392.
DEMEASE. In old English law. Death.
DEMEMBRATION. In Scotch law. Maliciously
cutting off or otherwise separating one limb from
another. 1 Hume, 323; Bell.
DEMENS. One whose mental faculties are enfeebled; one who has lost his mind; distinguished
from amens, one totally insane. 4 Coke, 128.
DEMENTED. Of unsound mind.
—Legal demand. A demand properly made, as
to form, time, and place, by a person lawfully authorized. Foss v. Norris, 70 Me. 118.
DEMENTENANT EN AVANT. L. Fr. From
this time forward. Kelham.
—On demand. A promissory note payable "on
demand" is a present debt, and is payable without
any actual demand, or, if a demand is necessary,
the bringing of a suit is enough. Appeal of Andress, 99 Pa. 424.
DEMENTIA PRAECOX. A term used to include
a wide range of mental disorders which occur in
early life. It is also called adolescent insanity
and schizophrenia. Dementia praecox includes
three types, namely, primary dementia, catatonia,
and hebephrenia. Loftin v. Yancey, 182 Okl. 313,
77 P.2d 107, 108; Honrath v. New York Life Ins.
Co., 65 S.D. 480, 275 N.W. 258, 259, 112 A.L.R.
1272; Lee v. United States, C.C.A.Ga., 91 F.2d 326,
330. Also, see Insanity.
—Personal demand. A demand for payment of a
bill or note, made upon the drawer, acceptor or
maker, in person. See 1 Daniel, Neg. Inst. § 589.
—Reasonable public demand for a bank. Such a
desire upon the part of the community for the
bank as will make its coming welcome and insure
an amount of business sufficient to promise it
success. It may come from the natural desire of
the community and upon its own initiative, or it
may be the result of propaganda. State v. State
Securities Commission, 145 Minn. 221, 176 N.W.
759, 760.
DEMENTIA. See Insanity.
DEMESNE. Domain; dominical; held in one's
own right, and not of a superior; not allotted to
tenants.
In the language of pleading, own; proper; original. Thus, son assault demesne, his own assault, his assault originally or in the first place.
Ancient Demesne
DEMAND NOTE. A note which expressly states
that it is payable on demand, on presentation or
at sight; a note in which no time for payment
is expressed, Cassity v. Cassity, 147 Kan. 411, 76
P.2d 862, 866; Kent v. Lampman, 59 Cal.App.2d
407, 139 P.2d 57, 59; Tarlton v. Johnson, Mo.App.,
138 S.W.2d 49, 52; a note issued, accepted or indorsed when overdue, as regards person so issuing, accepting or indorsing it. Nees v. Hagan, 22
Tenn.App. 28, 118 S.W.2d 566, 568; DeLoach v.
Adams Loan & Investment Co., 62 Ga.App. 61, 7
S.E.2d 580, 581.
See Ancient.
Demesne as of Fee
A man is said to be seised in his demesne as of
fee of a corporeal inheritance, because he has a
property, dominicum or demesne, in the thing
itself. But when he has no dominion in the thing
itself, as in the case of an incorporeal hereditament, he is said to be seised as of fee, and not in
his demesne as of fee. 2 Bl. Comm. 106; Littleton, § 10; Barnet v. Ihrie, 17 Serg. & R. (Pa.)
196.
517
DEMESNE
Demesne Lands
In English law. Those lands of a manor not
granted out in tenancy, but reserved by the lord
for his own uSe and occupation. Lands set apart
and appropriated by the lord for his own private
use, as for the supply of his table, and the maintenance of his family; the opposite of tenemental
lands. Tenancy and demesne, however, were not
in every sense the opposites of each other; lands
held for years or at will being included among
demesne lands, as well as those in the lord's actual possession. Spelman; 2 Bl. Comm. 90.
Demesne Lands of the Crown
That share of lands reserved to the crown at
the original distribution of landed property, or
which came to it afterwards by forfeiture or
otherwise. 1 Bl. Comm. 286; 2 Steph. Comm. 550.
Demesnial
Pertaining to a demesne.
DEMI. French. Half; the half. Used chiefly in
composition.
As to demi "Mark," "Official," "Vill," see those
titles.
DEMI-SANGUE, or DEMY-SANGUE. Half-blood.
DEMIDIETAS. In old records. A half or moiety.
DEMIES. In some universities and colleges this
term is synonymous with "scholars."
DEMINUTIO. In the civil law. A taking away;
loss or deprivation. See Capitis Deminutio.
DEMISE, v. In conveyancing. To convey or
create an estate for years or life; to lease. The
usual and operative word in leases: "Have granted, demised, and to farm let, and by these presents do grant, demise, and to farm let." 2 Bl.
Comm. 317; 1 Steph. Comm. 476; Co. Litt. 45a;
Carr v. King, 24 Cal.App. 713, 142 P. 131, 133.
DEMISE, n. In conveyancing. A conveyance of
an estate to another for life, for years, or at will;
most commonly for years; a lease. 1 Steph.
Comm. 475. Priddy v. Green, Tex.Civ.App., 220
S.W. 243, 248. Originally a posthumous grant;
commonly a lease or conveyance for a term of
years; sometimes applied to any conveyance, in
fee, for life, or for years. Pub. St. Mass. 1882, p.
1289.
"Demise" is synonymous with "lease" or "let." The use
of the term in a lease imports a covenant for quiet enjoyment. Evans v. Williams, 291 Ky. 484, 165 S.W.2d 52, 55;
Sixty-Third & Halsted Realty Co. v. Chicago City Bank &
Trust Co., 299 III.App. 297, 20 N.E.2d 162, 167; and implies
a covenant by lessor of good right and title to make the
lease. Evans v. Williams, 291 Ky. 484, 165 S.W.2d 52, 55.
A charter of a barge without motive power accompanied by bargee paid by owner, The Nat. E.
Sutton, D.C.N.Y., 42 F.2d 229, 232; Harbor Towboat Co. v. Lowe, D.C.N.Y., 47 F.Supp. 454, 456;
or of a tug or other vessel under circumstances
making charterer owner pro hac vice, Davison
Chemical Corporation v. The Henry W. Card, D.C.
N.Y., 51 F.Supp. 380, 382; Conners Marine Co. v.
Wathen, D.C.N.Y., 43 F.Supp. 283, 284. Under a
demise charter, there is but a hiring of the vessel,
under which no title passes to the charterer but
merely the right to possess and control it for a
li mited period. McGahern v. Koppers Coal Co.,
C.C.A.Pa., 108 F.2d 652, 653.
The word is also used as a synonym for "decease" or "death." In England it is especially
employed to denote the death of the sovereign.
—Demise and redemise. In conveyancing. Mutual leases made from one party to another on
each side, of the same land, or something out of
it; as when A. grants a lease to B. at a nominal
rent (as of a pepper corn), and B. redemises the
same property to A. for a shorter time at a real,
substantial rent. Jacob; Whishaw.
—Demise of the crown. The natural dissolution
of the king is generally so called; an expression
which signifies merely a transfer of property.
By demise of the crown we mean only that, in
consequence of the disunion of the king's natural
body from his body politic, the kingdom is transferred or demised to his successor, and so the
royal dignity remains perpetual. 1 Bl. Comm.
249; Plowd. 234.
—Several demises. In English practice. In the
action of ejectment, it was formerly customary,
in case there were any doubt as to the legal estate being in the plaintiff, to insert in the declaration several demises from as many different persons; but this was rendered unnecessary by the
provisions of the common-law procedure acts.
—Single demise. A declaration in ejectment
might contain either one demise or several. When
it contained only one, it was called a "declaration
with a single demise."
DEMISI. Lat. I have demised or leased. Demisi,
concessi, et ad firmam tradidi; have demised,
granted, and to farm let. The usual operative
words in ancient leases, as the corresponding English words are in the modern forms. 2 Bl. Comm.
317, 318; Koch v. Hustis, 113 Wis. 599, 87 N.W.
834.
DEMISSIO. L. Lat. A demise or letting. Chiefly used in the phrase ex demissione (on the demise), which formed part of the title of the cause
in the old actions of ejectment, where it signified
that the nominal plaintiff (a fictitious person)
held the estate "on the demise" of, that is, by
a lease from, the real plaintiff.
DEMOBILIZATION. In military law. The dismissal of an army or body of troops from active
service.
DEMOCRACY. That form of government in
which the sovereign power resides in and is exercised by the whole body of free citizens, as distinguished from a monarchy, aristocracy, or oligarchy. According to the theory of a pure democracy, every citizen should partici p ate directly
in the business of governing, and the legislative
518
DEMURRANT
assembly should comprise the whole people. But
the ultimate lodgment of the sovereignty being
the distinguishing feature, the introduction of the
representative system does not remove a government from this type. However, a government of
the latter kind is sometimes specifically described
as a "representative democracy."
DEMONSTRATIVE EVIDENCE. That evidence
Town form of government constitutes pure
democracy as distinguished from representative
government. Commonwealth v. Town of Hudson, 315 Mass. 335, 52 N.E.2d 566, 572.
DEMONSTRATIVE LEGACY. See Legacy.
Democracy is loosely used of governments in which the
sovereign powers are exercised by all the people or ,a
large number of them, or specifically, in modern use, of a
representative government where there is equality of rights
without hereditary or arbitrary differences in rank or
privilege; and is distinguished from aristocracy. * * *
In modern representative democracies, as the United States
and France, though the governing body, that is, the electorate, is a minority of the total population, the principle
on which the government is based is popular sovereignty,
which distinguishes them from aristocracies. Webster's
New Int.Dict.
DEMOCRATIC. Of or pertaining to democracy,
or to a political party called "democratic," particularly, in the United States, the Democratic
party, which succeeded the Anti-federalist, or Republican, party.
DEMOLISH. To throw or pull down; to raze;
to destroy the fabrication of; to pull to pieces;
hence to ruin; destroy. Star Mfg. Co. v. Quarrles, 172 Okl. 550, 46 P.2d 497, 498. To destroy
totally or to commence the work of total destruction with the purpose of completing the same. 50
L.J.M.C. 141. It is not synonymous with "remove." Durrett v. Woods, 155 La. 533, 99 So. 430,
431.
DEMONETIZATION. The disuse of a particular
metal for purposes of coinage. The withdrawal
of the value of a metal as money.
DEMONSTRATE. To teach by exhibition of
samples; to derive from admitted premises by
steps of reasoning which admit of no doubt; to
prove indubitably. Espenhain v. Barker, 121 Or.
621, 256 P. 766, 768. To show or prove value or
merits by operation. J. A. Fay & Egan Co. v.
Mims, 151 S.C. 484, 149 S.E. 246, 248.
DEMONSTRATIO. Lat. Description; addition;
denomination. Occurring often in the phrase,
"Falsa demonstratio non nocet," (a false description does not harm.) 2 Bla. Comm. 382, n.; 2
P. Wms. 140; 1 Greenl. Ev. § 291; Wigr. Wills
208, 233.
DEMONSTRATION. Description; pointing out.
That which is said or written to designate a thing
or person.
Evidence
Absolutely convincing proof. That proof which
excludes all possibility of error. Treadwell v.
Whittier, 80 Cal. 574, 22 P. 266, 5 L.R.A. 498, 13
Am.St.Rep. 175.
False Demonstration
See False Demonstration.
addressed directly to the senses without intervention of testimony. Kabase v. State, 31 Ala.App.
77, 12 So.2d 758, 764.
Demonstrative evidence of negligence has been applied to
that kind of negligence which is usually expressed by res
ipsa loquitur.
DEMOTION. A reduction to lower rank or grade,
or to lower type of position, though holder's salary remains the same. Reed v. City Council of
City of Roseville, 60 Cal.App.2d 628, 141 P.2d 459,
463. Assistant fire chief reduced in rank, McCarthy v. Steinkellner, 223 Wis. 605, 270 N.W.
551; under Teachers' Tenure Act. Smith v. School
Dist. of Philadelphia, 334 Pa. 197, 5 A.2d 535, 539;
indefinite suspension without pay. City of Knoxville v. Smith, 176 Tenn. 73, 138 S.W.2d 422, 424.
DEMPSTER. In Scotch law. A doomsman. One
who pronounced the sentence of court. 1 How.
State Tr. 937.
DEMUR. To present a demurrer; to take an
exception to the sufficiency in point of law of a
pleading or state of facts alleged. See Demurrer.
DEMURRABLE. Subject to a demurrer. A pleading, petition, or the like, is said to be demurrable
when it does not state such facts as support the
claim, prayer, or defense put forward. 5, Ch. Div.
979.
DEMURRAGE. In maritime law. The sum
which is fixed by the contract of carriage, or
which is allowed, as remuneration to the owner
of a ship for the detention of his vessel beyond
the number of days allowed by the charter-party
for loading and unloading or for sailing. Also
the detention of the vessel by the freighter beyond
such time. See 3 Kent, Comm. 203; 2 Steph.
Comm. 185. Continental Grain Co. v. Armour
Fertilizer Works, D.C.N.Y. 22 F.Supp. 49, 54;
Yone Suzuki v. Central Argentine Ry., C.C.A.N.
Y., 27 F.2d 795, 804. The term has been adopted
in railroad practice. Central R. Co. of N. J. v.
Gallena-Poole, Inc., 107 N.J.Eq. 267, 152 A. 251,
252; Sibley, L. B. & S. Ry. Co. v. Braswell Sand
& Gravel Co., La.App., 199 So. 427, 428.
The sum agreed to be paid to the ship for delay caused
without her fault, and which ordinarily does not begin to
run until the lay days have been used up. Earn Line S. S.
Co. v. Manati Sugar Co., C.C.A.N.Y., 269 F. 774, 776. The
amount agreed upon or allowed by law for unreasonable
detention. Clyde v. Wood, 179 N.Y.S. 252, 255, 189 App.
Div. 737; W. R. Grace & Co. v. Hansen, C.C.A.Wash., 273
F. 486, 496.
"Demurrage" is only an extended freight or reward to
the vessel, in compensation for the earnings she is improperly caused to lose. Every improper detention of a vessel
may be considered a demurrage, and compensation under
that name be obtained for it. Donaldson v. McDowell,
Holmes, 290, Fed.Cas.No.3,985.
"Demurrage" is a claim for damages for failure of the
consignee to accept delivery of the goods. Little v. One
Cargo of Lumber, D.C.Fla., 2 F.2d 608, 609.
DEMURRANT. One who demurs; the party
who, in pleading, interposes a demurrer.
519
DEMURRER
DEMURRER.
on the face thereof or that court has no jurisdiction is
treated as a general demurrer. People v. Sterling, 357 Ill.
354, 192 N.E. 229, 231.
In Equity
An allegation of a defendant, which, admitting
the matters of fact alleged by the bill to be true,
shows that as they are therein set forth they are
insufficient for the plaintiff to proceed upon or to
oblige the defendant to answer; or that, for some
reason apparent on the face of the bill, or on
account of the omission of some matter which
ought to be contained therein, or for want of
some circumstances which ought to be attendant
thereon, the defendant ought not to be compelled
to answer to the whole bill, or to some certain
part thereof. Mitf. Eq. Pl. 107. See, also, Goldsmith v. Mead Johnson & Co., 176 Md. 682, 7 A.2d
176, 179.
A general demurrer in equity, as a separate entity from
a demurrer on specific grounds, tests the equity of a bill
in the same manner as a motion to dismiss for want of
equity, and, in considering the bill on such a demurrer,
amendable defects are taken as amended. Johnson v.
Pugh, 193 So. 317, 239 Ala. 12.
By Federal Rules of Civil Procedure, demurrers, pleas
and exceptions for insufficiency of a pleading are abolished;
every defence in law shall be made by motion or by
answer; motions going to jurisdiction, venue, process, or
failure to state a claim are to be disposed of before trial,
unless the court orders otherwise.
In Pleading
The formal mode of disputing the sufficiency in
law of the pleading of the other side. In effect it
is an allegation that, even if the facts as stated
in the pleading to which objection is taken be
true, yet their legal consequences are not such
as to put the demurring party to the necessity of
answering them or proceeding further with the
cause. Green v. Carter, 28 Ohio App. 492, 162 N.
E. 814, 815; State v. Broad River Power Co., 177
S.C. 240, 181 S.E. 41; Mountain Park Institute v.
Lovill, 198 N.C. 642, 153 S.E. 114, 116; State v.
California Packing Corporation, 105 Utah 191, 145
P.2d 784.
A "demurrer" is not an absolute admission of
any fact but simply admits those facts that are
well pleaded. Commonwealth ex rel. Duff v.
Keenan, 347 Pa. 574, 33 A.2d 244, 248.
An objection made by one party to his opponent's pleading, alleging that he ought not to answer it, for some
defect in law in the pleading. It admits the facts, and
refers the law arising thereon to the court. R. L. Davies
& Co. v. Blomberg, 185 N.C. 496, 117 S.E. 497.
It imports that the objecting party will not proceed,' but
will wait the judgment of the court whether he is bound
so to do. Co.Litt. 71b; Steph.P1. 61; Kramer v. Barth,
139 N.Y.S. 341, 344, 79 Misc. 80.
Classification and Varieties
A general demurrer is a demurrer framed in
general terms, without showing specifically the
nature of the objection, and which is usually resorted to where the objection is to matter of substance. Steph.Pl. 140-142; 1 Chit.Pl. 663. See
Maryland Casualty Co. v. Arnold, 51 Ga.App. 562,
180 S.E. 906, 907.
Thus, a demurrer on the ground that the complaint sets
forth no cause of action, is a general demurrer, Alabama
Power Co. v. Curry, 228 Ala. 444, 153 So. 634; and a motion
to dismiss a bill on ground that there is no equity apparent
A general demurrer to an indictment challenges only
matters of form and substance appearing - on its face. It
is one which raises an objection that averments are insufficient in law to support the action or defense without
specifying any particular cause or defect, and is sufficient
only to reach matters of substance. Mountain Park Institute v. Lovill, 198 N. C. 642, 153 S.E. 114, 116.
A motion to dismiss a complaint for failure to state a
claim upon which relief can be granted is equivalent to a
general demurrer. Louisiana Farmers' Protective Union v.
Great Atlantic & Pacific Tea Co. of America, D.C.Ark., 40
F.Supp. 897, 908.
A special demurrer goes merely to structure or
form of pleading which it attacks, and usually
only to some portion thereof, and must distinctly
specify wherein defect lies. Huff v. Palmer, 356
Ill. 563, 191 N.E. 199, 202; Cameron v. Evans
Securities Corp., 119 Cal.App. 164, 6 P.2d 272, 274;
It is one which excepts to the sufficiency of the
pleadings on the opposite side, and shows specifically the nature of the objection, and the particular ground of the exception. 3 Bouv. Inst.
no. 3022. Dairy Regior Land Corporation v. Harding, Tex.Civ.App., 266 S.W. 181, 182; Johanson
v. Cudahy Packing Co., 107 Utah 114, 152 P.2d 98,
105.
While general demurrer on specific grounds relating to
different allegations of bill may be called "special demurrer," which attacks different parts of bill specifically, such
demurrer fails, if bill is good as pleading and remaining
allegations are sufficient to support relief prayed. Forcum
v. Symmes, 106 Fla. 510, 143 So. 630, 631.
A speaking demurrer is one which, in order to
sustain itself, requires the aid of a fact not appearing on the face of the pleading objected to,
or, in other words, which alleges or assumes the
existence of a fact not already pleaded, and which
constitutes the ground of objection and is condemned both by the common law and the code
system of pleading. Ellis v. Perley, 200 N.C. 403,
157 S.E. 29, 30. Ferris v. Union Sa y . Bank, 45
Ga.App. 544, 165 S.E. 450; Preston A. Blair Co. v.
Rose, 56 Idaho 114, 51 P.2d 209, 212; Metropolitan
Life Ins. Co. v. Perrin, 184 Miss. 249, 183 So. 917,
920; Town of Randolph v. Lyon, 106 Vt. 495, 175
A. 1, 2; Whaley v. First Nat. Bank, 229 Ala. 153,
155 So. 574.
A speaking demurrer is one which alleges some
new matter, not disclosed by the pleading against
which the demurrer is aimed and not judicially
known or legally presumed to be true. Blythe
v. Enslen, 219 Ala. 638, 123 So. 71, 73; Kansas
Life Ins. Co. v. First Bank of Truscott, Tex.Civ.
App., 47 S.W.2d 675, 677; In re Ferris' Estate,
Iowa, 14 N.W.2d 889, 894.
A parol demurrer (not properly a demurrer at
all) was a staying of the pleadings; a suspension
of the proceedings in an action during the nonage of an infant, especially in a real action. Now
abolished. 3 Bl. Comm. 300.
Demurrer book. In practice. A record of the
issue on a demurrer at law, containing a transcript of the pleadings, with proper entries; and
intended for the use of the court and counsel on
the argument. 3 Bl. Comm. 317; 3 Steph. Comm.
581.
520
DENIAL
Demurrer ore tenus. An objection to the introduction of any evidence on the ground that the
complaint or petition fails to state a cause of action. Cleveland v. Bateman, 21 N.M. 675, 158 P.
648, 652, Ann.Cas.1918E, 1011; Peerless Fixture
Co. v. Frick, Mo.App., 133 S.W.2d 1089, 1090. This
name is sometimes given to a ruling on an objection to evidence, but is not properly a demurrer
at all. Mandelert v. Land Co., 104 Wis. 423, 80
N.W. 726; It should be considered as a general
demurrer only. Dawkins v. People's Bank &
Trust Co., 117 Okl. 181, 245 P. 594, 596.
Demurrer to evidence. This proceeding is analogous to a demurrer to a pleading. It is an objection or exception by one of the parties in an action at law, to the effect that the evidence which
his adversary produced is insufficient in point of
law (whether true or not) to make out his case
or sustain the issue. Upon joinder in demurrer,
the jury is discharged, and the case is argued to
the court in bane, who gives judgment upon the
facts as shown in evidence. See 3 Bl. Comm. 372;
State v. Moody, 150 N.C. 847, 64 S.E. 431, 432.
The practice has been largely superseded by motions for nonsuit and directed verdict. Hopkins
v. Nashville, C. & St. L. Ry., 96 Tenn. 409, 34 S.W.
1029, 1034, 32 L.R.A. 354. Thus, a motion to nonsuit, Herrick v. Barzee, 96 Or. 357, 190 P. 141, 145;
Perkins v. Maiden, 57 Cal.App.2d 46, 134 P.2d 30,
34, a motion to dismiss at close of plaintiff's evidence for failure to prove essential facts, Mansfield v. Reserve Oil Co., 38 N.M. 187, 29 P.2d 491,
492; Fewkes v. Borah, 376 Ill. 596, 35 N.E.2d 69,
72, have been held to be, and a defendant's motion
for a directed verdict, made at close of the evidence, is equivalent to, a "demurrer to the evidence" for insufficiency to sustain a verdict for
plaintiff. Mills v. Richardson, 126 Me. 244, 137
A. 689, 690. A motion to exclude evidence has the
effect of a demurrer to the evidence, the chief
points of difference being the stage of the proceeding at which each is available and the consequences resulting from deferring the motion to
exclude. Thornhill v. Thornhill, 172 Va. 553, 2
S.E.2d 318, 319. For a discussion of the subject
see Hopkins v. Nashville, C. & St. L. R. R., 96
Tenn. 409, 34 S.W. 1029, 32 L.R.A. 354.
Demurrer to interrogatories. Where a witness
objects to a question propounded (particularly
on the taking of a deposition) and states his
reason for objecting or refusing to answer, it is
called a "demurrer to the interrogatory," though
the term cannot here be understood as used in its
technical sense. 2 Swanst. 194; Gresl. Eq. Ey,
61; 2 Atk. 524; 1 Y. & J. 132.
DEMY SANKE, DEMY SANGUE. Half-blood.
A corruption of demi-sang.
DEN. A valley. Blount. A hollow place among
woods. Cowell.
DEN AND STROND. In old English law. Liberty for ships or vessels to run aground, or come
ashore (strand themselves). Cowell.
DENARIATE. In old English law. As much
land as is worth one penny per annum.
DENARII. An ancient general term for any sort
of petunia numerata, or ready money. The
French use the word "denier" in the same sense,
-payer de ses propres deniers.
DENARII DE CARITATE. In English law. Customary oblations made to a cathedral church at
Pentecost.
DENARII S. PETRI. (Commonly called "Peter's
Pence.") An annual payment on St. Peter's feast
of a penny from every family to the pope, during
the time that the Roman Catholic religion was
established in England.
DENARIUS. The chief silver coin among the
Romans, worth 8d.; it was the seventh part of a
Roman ounce. Also an English penny. The denarius was first coined five years before the first
Punic war, B. C. 269. In later times a copper
coin was called "denarius." • Smith, Dict. Antiq.
DENARIUS DEL (Lat. "God's penny.") Earnest
money; money given as a token of the completion of a bargain. It differs from arrhce in this:
that arrhce is a part of the consideration, while
the denarius Dei is no part of it. The latter was
given away in charity; whence the name. 1 Duvergnoy, n. 132; 3 Duvergnoy, n. 49; Rupert. de
Jur., Denier a Dieu.
DENARIUS TERTIUS COMITATUS. In old
English law. A third part or penny of the county
paid to its earl, the other two parts being reserved
to the crown.
DENIAL. A traverse in the pleading of one party
of an allegation of fact set up by the other; a
defense. See Flack v. O'Brien, 43 N.Y.S. 854, 19
Misc. 399; Mott v. Baxter, 29 Colo. 418, 68 P. 220.
A deprivation, as the denial of a constitutional
right, U. S. v. Carolene Products Co., Ill., 58 S.Ct.
778, 783, 304 U.S. 144, 82 L.Ed. 1234, or a denial
of civil rights. State of New Jersey v. Weinberger,
D.C.N.J., 38 F.2d 298, 302. A refusal or rejection, as the denial of a claim on a war risk
policy by Veterans' Administration, U. S. v.
Green, C.C.A.Tenn., 84 F.2d 449, 450; Morris v.
U. S., C.C.A.Miss., 96 F.2d 731, 732, or of a claim
for workmen's compensation. Commercial Casualty Ins. Co. v. Hilton, Tex.Civ.App., 55 S.W.2d
120, or of probation. People v. Lopez, 43 Cal.
App.2d 854, 110 P.2d 140, 144. A disavowal. People v. Bell, 96 Cal.App. 503, 274 P. 393, 396; Massell v. Fourth Nat. Bank, 38 Ga.App. 601, 144 S.E.
806, 807.
General and Specific
In code pleading, a general denial is one which
puts in issue all the material averments of the
complaint or petition, and permits the defendant
to prove any and all facts tending to negative
those averments or any of them. Telford v. Iowa
Guarantee Mortg. Corp., 58 S.D. 261, 235 N.W. 663,
665. A specific denial is a separate denial applicable to one particular allegation of the complaint.
Gas Co. v. San Francisco, 9 Cal. 470; An answer
521
DENIER
by way of a general denial is the equivalent of,
and substitute for, the general issue under the
common-law system of pleading. It gives to the
defendant the same right to require the plaintiff
to establish by proof all the material facts necessary to show his right to a recovery as was
given by that plea. Kline v. Harris, 30 N.D. 421,
152 N.W. 687, 688, Ann.Cas.1917D, 1176.
DENIER. L. Fr. In old English law. Denial;
refusal. Denier is when the rent (being demanded upon the land) is not paid. Finch, Law, b. 3,
c. 5.
DENIER A DIEU. In French law. Earnest money; a sum of money given in token of the completion of a bargain. The phrase is a translation
of the Latin Denarius Dei, (q. v.).
DENIZATION. The act of making one a denizen; the conferring of the privileges of citizenship upon an alien born. Cro. Jac. 540. See Denizen.
DENIZE. To make a man a denizen or citizen.
DENIZEN. In English law. A person who, being
an alien born, has obtained, ex donatione regis,
letters patent to make him an English subject,—
a high and incommunicable branch of the royal
prerogative. A denizen is in a kind of middle
state between an alien and a natural-born subject, and partakes of the status of both of these.
1 Bl. Comm. 374; 7 Coke 6; Ex parte Gilroy, D.C.
N.Y., 257 F. 110, 128.
The term is used to signify a person who, being an alien
by birth, has obtained letters patent making him an English subject. The king may denize, but not naturalize, a
man; the latter requiring the consent of parliament, as
under the naturalization act, 1870, 33 & 34 Vict. c. 14. A
denizen holds a position midway between an alien and a
natural-born or naturalized subject, being able to take
lands by purchase or devise, (which an alien could not
until 1870 do,) but not able to take lands by descent,
( which a natural-born or naturalized subject may do.)
Brown.
The denizen becomes a British subject from the date of
the letters while a naturalized person is placed in a position equivalent to that of a natural-born subject; Dicey,
Confl.Laws 164.
The word is also used in this sense in South Carolina.
See McClenaghan v. McClenaghan, 1 Strob.Eq., S.C., 319,
47 Am. Dec. 532.
In American law. A dweller; a stranger admitted to certain rights in a foreign country or
as one who lives habitually in a country but is
not a native born citizen; one holding a middle
state between an alien and a natural born subject. United States ex rel. Zdunic v. Uhl, D.C.
N.Y., 46 F.Supp. 688, 691. One who has some
relation to the enemy nation which is not lost by
the alien's presence within the United States.
United States ex rel. Zdunic v. Uhl, C.C.A.N.Y.,
137 F.2d 858, 861; United States ex rel. D'Esquiva
v. Uhl, C.C.A.N.Y., 137 F.2d 903, 905.
Thus, one who lived and worked in Austria in 1938 at
time Germany obtained control of Austrian government,
and continued to live there until leaving for the United
States in 1939, at which time he was issued a German passport, was a "denizen" of Germany, within Enemy Alien
Act. United States ex rel. Zdunic v. Uhl, D.C.N.Y., 47
F.Supp. 520.
A denizen, in the primary, but obsolete, sense
of the word, is a natural-born subject of a country. Co. Litt. 129a; Levy v. McCartee, 6 Pet. 102,
116, 8 L.Ed. 334.
DENMAN'S (LORD) ACT. An English statute,
for the amendment of the law of evidence, (6 & 7
Vict. c. 85,) which provides that no person offered
as a witness shall thereafter be excluded by
reason of incapacity, from crime or interest, from
giving evidence.
DENMAN'S (MR.) ACT. An English statute, for
the amendment of procedure in criminal trials,
(28 & 29 Vict. c. 18,) allowing counsel to sum up
the evidence in criminal as in civil trials, provided
the prisoner be defended by counsel.
DENOMBREMENT. In French feudal law. A
minute or act drawn up, on the creation of a fief,
containing a description of the fief, and all the
rights and incidents belonging to it. Guyot, Inst.
Feud. c. 3.
DENOMINATIO FIERI DEBET A DIGNIORIBUS. Denomination should be made from the
more worthy.
DENOMINATION. The act of naming. A society
of individuals known by the same name, usually
a religious society.
DENOMINATIONAL. adj. Of, or pertaining to,
a denomination; sectarian. Wesley Foundation
at Seattle v. King County, 185 Wash. 12, 52 P.2d
1247, 1250; Constitutional Defense League v. Waters, 308 Pa. 150, 162 A. 216, 217.
DENOUNCE. To declare (an act or thing) to
be a crime arid prescribe a punishment for it.
State v. De Hart, 109 La. 570, 33 So. 605. The
word is also used (not technically but popularly)
as the equivalent of "accuse" or "inform against."
The term is frequently used in regard to treaties, indicating the act of one nation in giving notice to another nation of its intention to terminate
an existing treaty between the two nations. The
French dënoncer means to declare, to lodge an
information against. Bellows, Fr. Diet,
DENOUNCEMENT.
In Mexican Mining Law
Denouncement is an application to the authorities for a grant of the right to work a mine,
either on the ground of new discovery, or on the
ground of forfeiture of the rights of a former
owner, through abandonment or contravention of
the mining law. Cent. Dict. See Castillero v. U.
S., 2 Black, 109, 17 L.Ed. 360; Stewart v. King, 85
Or. 14, 166 P. 55, 56.
A "denouncement" is an application for the acquisition
of land for mining purposes, under certain rules prescribed
by Mexican laws. The application is called the "denouncement," and, when approved by the Mexican government,
is called "concession" or "title," sometimes "patent." It
is then a grant given by the government to use the land
applied for, for the purpose of mining, and is * called the
"title." Winningham v. Dyo, Tex.Com.App., 48 S.W.2d
600, 603.
522
DEPARTMENT
In Spanish and Mexican Law
In Scotch Practice
A judicial proceeding for the forfeiture of land
held by an alien.
The act by which a person is declared to be a
rebel, who has disobeyed the charge. given on letters of horning. Bell.
Though real property might be acquired by an alien in
fraud of the law,—that is, without observing its requirements,—he nevertheless retained his right and title to it,
but was liable to be deprived of it by the proper proceeding of denouncement, which in its substantive characteristics was equivalent to the inquest of office found, at common law. De Merle v. Mathews, 26 Cal. 477.
DENUNTIATIO. In old English law. A public
notice or summons. Bract. 202b.
DENY. To traverse. Perry v. Tumlin, 161 Ga.
392, 131 S.E. 70, 73. To refuse to grant a petition
or protest. Safeway Stores v. Brown, Em.App.,
138 F.2d 278, 280.
The "denouncement of a new work" is a proceeding to obtain an order of court, in the nature
of an injunction, against the construction of a
new building or other work, which, if completed,
would injuriously affect the plaintiff's property.
Von Schmidt v. Huntington, 1 Cal. 55.
DEODAND. (L. Lat. Deo dandum, a thing to be
given to God.) In English law. Any personal
chattel which was the immediate occasion of the
death of any reasonable creature, and which was
forfeited to the crown to be applied to pious uses,
and distributed in alms by the high almoner. 1
Hale, P.C. 419; Fleta, lib. 1, c. 25; 1 Bl.Comm.
300; 2 Steph.Comm. 365. See Parker-Harris Co.
v. Tate, 135 Tenn. 509, 188 S.W. 54, L.R.A.1916F,
935.
DENSHIRING OF LAND. (Otherwise called
"burn-beating.") A method of improving land by
casting parings of earth, turf, and stubble into
heaps, which when dried are burned into ashes
for a compost. Cowell.
DENTIFRICE. Any preparation used for cleansing the teeth. In re Edmand, Cust. & Pat.App.,
39 F.2d 723.
DEOR HEDGE. In old English law. The hedge
inclosing a deer park.
DEPART. To divide or separate actively. The departers of gold and silver were no more than the
dividers and refiners of those metals. Cowell.
To go away, especially with reference to permanent visits. Pezzoni v. Pezzoni, 38 Cal.App.
209, 175 P. 801, 802. To withdraw from. Pomeroy
v. National City Co., 209 Minn. 155, 296 N.W. 513,
517, 133 A.L.R. 766; City Co. of New York v.
Stern, C.C.A.Minn., 110 F.2d 601, 603. To depart,
as from the state, is not necessarily synonymous
with the phrase "leave the state," or the phrase
"absent from the state." Williams v. Williams, 57
Cal.App. 36, 206 P. 650, 652; Aronow v. Bishop,
112 Mont. 611, 120 P.2d 423, 424.
DENTIST. One whose business it is to diagnose
and treat imperfections or diseases of human
teeth. People v. Hewson, 181 App.Div. 212, 168
N.Y.S. 104. Defined by the California Dental Act
as any person who shall for remuneration perform an operation of any kind, or treat diseases
of the human teeth. Jacobs v. Board of Dental
Examiners of California, 189 Cal. 709, 209 P. 1006,
1007.
DENTISTRY. A special department of medical
science, dealing with the treatment of the diseases,
etc., of human teeth. Commonwealth v. Heller,
277 Pa. 539, 121 A. 558, 559. The term includes the
supplying of dentures, bridges and other artificial
substitutes to the user or prospective user thereof. Curtis v. State, 78 Okl.Cr. 282, 147 P.2d 465,
468. Winner v. Kadow, 373 Ill. 192, 25 N.E.2d
882, 883.
In Maritime Law
To leave a port; to be out of a port. To depart
imports more than to sail, or set sail. A warranty
in a policy that a vessel shall depart on or before
a particular day is a warranty not only that she
shall sail, but that she shall be out of the port
on or before that day. 3 Maule & S. 461; 3 Kent
Comm. 307, note. "To depart" does not mean
merely to break ground, but fairly to set forward
upon the voyage. Moir v. Assur. Co., 6 Taunt. 241;
Young v. The Orpheus, 119 Mass. 185; The Helen
Brown (D.C.) 28 F. 111.
DENUMERATION. The act of present payment.
DENUNCIA DE OBRA NUEVA. In Spanish law.
The denouncement of a new work; being a proceeding to restrain the erection of some new work,
as, for instance, a building which may, if completed, injuriously affect the property of the complainant; it is of a character similar to the interdicts of possession. Escriche; Von Schmidt v.
Huntington, 1 Cal. 63.
DENUNCIATION.
In the Civil Law
The act by which an individual informs a public
officer, whose duty it is to prosecute offenders,
that a crime has been committed. See 1 Bro.Civ.
Law 447; Ayliffe, Parerg. 210; Pothier, Proc.Cr.
sect. 2, § 2.
The giving of an information in the ecclesiastical courts by one who was not the accuser.
In Pleading
To forsake or abandon the ground assumed in
a former pleading, and assume a new one. See
Departure.
DEPARTMENT. One of the territorial divisions
of a country. The term is chiefly used in this
sense in France, where the division of the country
into departments is somewhat analogous, both territorially and for governmental purposes, to the
division of an American state into counties. The
United States have been divided into military de-
523
DEPARTMENT
ment to a petition changing the cause of action is not,
technically, a "departure." King v. Milner, 63 Colo. 407,
167 P. 957, 960; MacGerry v. Rodgers, 144 Wash. 375, 258
P. 314, 315.
partments, including certain portions of the country. Parker v. U. S., 1 Pet. 293, 7 L.Ed. 150.
Generally, a branch or division of governmental
administration. Glendinning v. Curry, 153 Fla.
398, 14 So.2d 794, 802.
DEPARTURE IN DESPITE OF COURT. In old
English practice. The tenant in a real action,
having once appeared, was considered as constructively present in court until again called
upon. Hence if, upon being demanded, he failed
to appear, he was said to have "departed in despite
[i. e., contempt] of the court." Co.Litt. 139a; 8
Co. 62a; 1 Rolle, Abr. 583; Metc.Yelv. 211.
One of the divisions of the executive branch of
government. Used in this sense in the United
States, where each department is charged with
a specific class of duties, and comprises an organized staff of officials; e. g., the department of
state, department of war, etc.
With reference to state or municipal administration, a
"bureau" is merely a division of a department. In re
McLaughlin, 210 N.Y.S. 68, 72, 124 Misc. 766.
DEPASTURE. In old English law. To pasture.
"If a man depastures unprofitable cattle in his
ground." Bunb. 1, case 1.
Also, a division of a business, or of something
comparable thereto. See State v. Arkansas Lumber Co., 126 Ark. 107, 189 S.W. 671; U. S. v. Elgin,
J'. & E. Ry. Co., Ill., 56 S.Ct. 841, 298 U.S. 492, 80
L.Ed. 1300.
DEPECULATION. A robbing of the prince or
commonwealth; an embezzling of the public treasure.
DEPENDABLE, adj. Trustworthy or reliable, Anderson v. Wyoming Development Co., 60 Wyo. 417,
154 P.2d 318, 340; Evidence, Taylor v. Latimer,
D.C.Mo., 47 F.Supp. 236, 238.
DEPARTMENT STORE. Generally, a store in
which a variety of merchandise is arranged in or
offered for sale from several departments or sections, but the term cannot be applied with any certainty to a particular business and is too indefinite
to be used as a classification for the purpose of
taxation. Barker Bros. v. City of Los Angeles,
10 Cal.2d 603, 76 P.2d 97.
DEPENDENCE. A state of looking to another
for support, maintenance, food, clothing, comfort
and protection of a home and care. Central Life
Assur. Soc. (Mutual) v. Gray, Tex., 32 S.W.2d 259,
261; Soderstrom v. Missouri Pac.. R. Co., Mo.App.,
141 S.W.2d 73, 79.
DEPARTURE. A deviation or divergence, from
a standard rule or measurement. Hamilton Mfg.
Co. v. Tubbs Mfg. Co., D.C.Mich., 216 F. 401, 409.
From a permitted use of vehicle or route, ReddyWaldhauer-Maffett Co. v. Spivey, 53 Ga.App. 117,
185 S.E. 147, 148. Jeffries v. Jodawelky, 304 Mich.
421, 8 N.W.2d 121, 122. From employment or
work, United Employers Casualty Co. v. Barker,
Tex.Civ.App., 148 S.W.2d 260, 263; Hartford Accident & Indemnity Co. v. Cardillo, 112 F.2d 11, 15,
72 App.D.C. 52.
A variance between pleading and proof. Kintner v. U. S., C.C.A.Colo., 71 F.2d 961, 962.
DEPENDENCY. A territory distinct from the
country in which the supreme sovereign power
resides, but belonging rightfully to it, and subject
to the laws and regulations which the sovereign
may think proper to prescribe. U. S'. v. The Nancy, 3 Wash.C.C. 286, Fed.Cas.No.15,854; Posadas
v. National City Bank of N. Y., Phil.Islands,
56 S.Ct. 349, 350, 296 U.S. 497, 80 L.Ed. 351.
It differs from a colony, because it is not settled by the citizens of the sovereign or mother
state; and from possession, because it is held by
other title than that of mere conquest.
A relation between two persons, where one is
sustained by another or looks to or relies on aid
of another for support or for reasonable necessaries consistent with dependent's position in life.
Peterson v. Industrial Commission, 331 Ill. 254, 162
N.E. 846, 847.
In Maritime Law
A deviation from the course prescribed in the
policy of insurance.
In Pleading
The statement of matter in a replication, rejoinder, or subsequent pleading, as a cause of action or
defense, which is not pursuant to the previous
pleading of the same party, and which does not
support and fortify it. 2 Williams, Saund. 84a,
note 1; 2 Wils. 98; Co.Litt. 304a; Hanna v. Royce,
119 Or. 450, 249 P. 173, 175.
A departure occurs when party departs from cause or
defense first made and has recourse to another. Livingston v. Malever, 103 Fla. 200, 137 So. 113, 118; Clonts v.
State, 19 Ala.App. 130, 95 So. 562; Northwestern Nat. Life
Ins. Co. v. Ward, 56 Okl. 188, 155 P. 524, 525; Burrell v.
Masters, 65 Colo. 310, 176 P. 316, 317. Or, in other words,
when the second pleading contains matter not pursuant to
the former, and which does not support and fortify It.
Hence a departure obviously can never take place till the
replication. Steph.Pl. 410. Each subsequent pleading must
pursue or support the former one; i. e., the replication
must support the declaration, and the rejoinder the plea,
without departing out of it. 3 Bl.Comm. 310. An amend-
DEPENDENT, n. One who derives support from
another; Milkovich v. Industrial Comm., 91 Utah,
498, 64 P.2d 1290, 1293; Texas Employers Ins.
Ass'n v. Arnold, Tex.Civ.App., 62 S.W.2d 609, 611;
not merely persons who derive a benefit from the
earnings of the deceased; [1899] 1 Q.B. 1005;
Havey v. Erie R. Co., 88 N.J.Law, 684, 96 A. 995,
996. One who depends on or is sustained by another, or who relies on another for support or
favor. King v. Illinois Steel Corporation, 92 Ind.
App. 456, 176 N.E. 161, 162.
DEPENDENT, adj. Deriving existence, support,
or direction from another; conditioned, in respect
to force or obligation, upon an extraneous act or
fact.
524
DEPORTATION
DEPLETE. To reduce or lessen, as by use, exhaustion, or waste. McKnight v. U. S., C.C.A.Cal.,
78 F.2d 931, 933.
Under a statute relating to dependent children, "dependent" is synonymous with "neglected," but not with "delinquent." People v. Ellis, 185 Ill.App. 417, 420; Durres v.
Deckard, 105 Ind.App. 674, 17 N.E.2d 481, 484.
Under a California juvenile act, a "dependent person" is
one under the age of 21 years who is in danger of growing
up to lead an idle, dissolute, or immoral life. People v.
Cruse, 24 Cal.App. 497, 141 P. 936.
DEPLETION. An emptying, exhausting or wasting of assets. Arkansas-Louisiana Gas Co. v. City
of Texarkana, D.C.Ark., 17 F.Supp. 447, 460.
For tax purposes, a return of capital, not a special bonus for enterprise. Untermyer v. Commissioner of Internal Revenue, C.C.A., 59 F.2d 1004.
A reduction during taxable year of oil, gas or other
mineral deposits or reserves as result of production. Darby-Lynde Co. v. Alexander, C.C.A.Okl.,
51 F.2d 56.
Dependent conditions. Mutual covenants which
go to the whole consideration on both sides. Long
v. Addix, 184 Ala. 236, 63 So. 982, 984; Palmer v.
Fox, 274 Mich. 252, 264 N.W. 361, 104 A.L.R. 1057.
Dependent contract. One which depends or is
conditional upon another. One which it is not
the duty of the contractor to perform until some
obligation contained in the same agreement has
been performed by the other party. Ham. Parties,
17, 29, 30, 109.
DEPOLYMERIZATION. In connection with the
devulcanizing of vulcanized rubber, the act of
breaking into smaller aggregations the rubber
molecules, which consist of hydrogen and carbon,
thus rendering the waste rubber plastic. Philadelphia Rubber Works Co. v. United States Rubber Reclaiming Works, D.C.N.Y., 225 F. 789, 791.
Dependent covenant. See Covenant.
Dependent promise. One which it is not the
duty of the promisor to perform until some obligation contained in the same agreement has been
performed by the other party. Hamm.Partn. 17,
29, 30, 109; Harr.Const. 152.
DEPONE. In Scotch practice. To depose; to
make oath in writing.
DEPENDENT RELATIVE REVOCATION. The
doctrine which regards as mutually dependent the
acts of one destroying a will and thereupon substituting another instrument for distribution of estate, when both acts are result of one plan, so that,
if second act, through incompleteness or other defect, fails to accomplish its intended purpose, and
it thereby becomes evident that testator was misled
when he destroyed his will, act of destruction is
regarded as bereft of intent of revocation and way
for probate of destroyed will is opened. Flanders
v. White, 142 Or. 375, 18 P.2d 823, 827; In re
Nelson's Estate, 183 Minn. 295, 236 N.W. 459,
46L
DEPENDING. In practice. Pending or undetermined; in progress. See 5 Coke, 47.
Under a statute, 28 U.S.C.A. § 1781, note, permitting the
taking of testimony by deposition de bene esse, a cause is
"depending" from the time of the issuance of the original
writ. Oklahoma Gas & Electric Co. v. Bates Expanded
Steel Truss Co., D.C.Del., 296 F. 281, 283.
In patent law. A convenient means of saying
that the parts of a device were so attached as to
have a right-angle relationship to each other, not
a gravitational hanging of one part upon another.
Alemite Mfg. Corporation v. Rogers Products Co.,
C.C.A.N.J., 42 F.2d 648, 651.
DEPESAS. In Spanish-American law. Spaces of
ground in towns reserved for commons or public
pasturage. 12 Pet. 443, note, 9 L.Ed. 1150.
DEPLETABLE ECONOMIC INTEREST. The interest in mineral land which is subject to depletion by the removal of the minerals by operation
of an oil well, mine, or the like. 26 U.S.C.A.Int.
Rev.Code § 114. Spalding v. U. S., C.C.A.Cal., 97
F.2d 697, 700; U. S. v. Spalding, C.CA.Cal.,, 97
F.2d 701, 704.
DEPONENT. In practice. One who deposes (that
is, testifies or makes oath, now in writing) to the
truth of certain facts; one who gives under oath
testimony which is reduced to writing; one who
makes oath to a written statement. The party
making an affidavit is generally so called, though
in the United States the term "affiant" is also
commonly applied to such party, the terms, when
used with reference to one making an affidavit,
are synonymous. Walden v. Crego's Estate, 238
Mich. 564, 285 N.W. 457, 461.
The word "depone," from which is derived "deponent,"
has relation to the mode in which the oath is administered,
(by the witness placing his hand upon the book of the
holy evangelists,) and not as to whether the testimony is
delivered orally or reduced to writing. "Deponent" is
included in the term "witness," but "witness" is more
general. Bliss v. Shuman, 47 Me. 248.
DEPONER. In old Scotch practice. A deponent.
3 How. State Tr. 695.
DEPOPULATIO AGRORUM. In old English law.
The crime of destroying, ravaging, or laying
waste a country. 2 Hale, P. C. 333; 4 Bl.Comm.
373.
DEPOPULATION. In old English law. A species
of waste by which the population of the kingdom
was diminished. Depopulation of houses was a
public offense. 12 Coke, 30, 31.
DEPORTATIO. Lat. In the civil law. A kind
of banishment, where a condemned person was
sent or carried away to some foreign country,
usually to an island, (in insulam deportatur,) and
thus taken out of the number of Roman citizens,
DEPORTATION. Banishment to a foreign country, attended with confiscation of property and
deprivation of civil rights. A punishment derived
from the deportatio (q. v.) of the Roman law, and
still in use in France.
525
DEPORTATION
In American Law
The removal or sending back of an alien to the
country from which he came, the removal from
the country of an alien considered inimical to public welfare; the removal of an alien out of the
country simply because his presence is deemed
inconsistent with the public welfare, and without
any punishment being imposed or contemplated.
Yonejiro Nakasuji v. Seager, D.C.Cal., 3 F.Supp.
410, 413.
"The removal of an alien out of the country, simply
because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or
contemplated, either under the laws of the country out of
which he is sent, or under those of the country to which
he is. taken." It differs from transportation, which is by
way of punishment of one convicted of an offence against
the laws of the country; and from extradition (q. v.),
which is the surrender to another country of one accused
of an offence against its laws, there to be tried, and, if
found guilty, punished. Fong Yue Ting v. U. S., 149 U.S.
698, 13 S.Ct. 1016, 37 L. Ed. 905.
"Deportation," as distinguished from "exclusion," is
depriving a person already in the United States of a privilege which he, at least at the time, is enjoying ; whereas
"exclusion" is the denial of entry, and does not deprive
one of any liberties he had theretofore enjoyed. Ex parte
Domingo Corypus, D.C., 6 F.2d 336.
In Roman Law
A perpetual banishment, depriving the banished
of his rights as a citizen; it differed from relegation (q. v.) and exile, (q. v.) 1 Brown, Civil &
Adm. Law, 125, note; Inst. 1, 12, 1, and 2; Dig.
48, 22, 14, 1,
DEPOSE. To deprive an individual of a public
employment or office against his will. Wolfflus,
Inst. § 1063. The term is usually applied to the
deprivation of all authority of a sovereign.
In Modern Usage
To make a deposition; to give evidence in the
shape of a deposition; to make statements which
are written down and sworn to; to give testimony
which is reduced to writing by a duly-qualified
officer and sworn to by the deponent. To say (in
a deposition) under oath. Webb v. Iowa-Nebraska
Coal Co., 198 Iowa 776, 200 N.W. 225, 226. To bear
witness, to state of oath, or give testimony. Favello v. Bank of America Nat. T. & S. Ass'n, 24
Cal.App.2d 342, 74 P.2d 1057, 1059.
In Practice
In ancient usage, to testify as a witness; to
give evidence under oath.
DEPOSIT, v. To commit to custody, or to lay
down; to place; to put; to let fall (as sediment) ;
Jefferson County ex rel. Grauman v. Jefferson
County Fiscal Court, 273 Ky. 674, 117 S.W.2d 918,
924; to lodge for safe-keeping or as a pledge, to
intrust to the care of another. White v. Greenlee,
330 Mo. 135, 49 S.W.2d 132, 134.
DEPOSIT, n. A naked bailment of goods to be
kept for the depositor without reward, and to be
returned when he shall require it. Jones, Bailm.
36, 117; Rozelle v. Rhodes, 116 Pa. 129, 9 Atl. 160,
2 Am.St.Rep. 591; Occidental Life Ins. Co. v. Rogan, C,C.A.Cal., 141 F.2d 1011, 1012.
A bailment of goods to be kept by the bailee without
reward, and delivered according to the object or purpose
of the original trust. Story, Bailm. § 41; Elbert Sales
Co. v. Granite City Bank, 55 Ga.App. 835, 192 S.E. 66, 67.
In general, an act by which a person receives the property of another, binding himself to preserve it and return
it in kind. Henry Rose Mercantile & Mfg. Co. v. Stearns,
159 La. 957, 106 So. 455, 458.
The delivery of chattels by one person to another to keep
for the use of the bailor.
The giving of the possession of personal property by one
person to another, with his consent, to keep for the use
and benefit of the first or of a third person. Moumal v.
Parkhurst, 89 Or. 248, 173 P. 669, 671.
Something intrusted to the care of another, either for a
permanent or a temporary disposition. Davidson v. U. S.,
C.C.A.Pa., 292 F. 750, 751, aff. U. S. v. Davidson, D.C.Pa.,
285 F. 661.
Also, money lodged with a person as an earnest
or security for the performance of some contract,
to be forfeited if the depositor fails in his undertaking. It may be deemed to be part payment,
and to that extent may constitute the purchaser
the actual owner of the estate. Larson v. Metcalf,
201 Iowa, 1208, 207 N.W. 382, 384, 45 A.L.R. 344.
Classification
According to the classification of the civil law, deposits
are of the following several sorts : (1) Necessary, made
upon some sudden emergency, and from some pressing
necessity; as, for instance, in case of a fire, a shipwreck,
or other overwhelming calamity, when property is confided to any person whom the depositor may meet without
proper opportunity for reflection or choice, and thence it
is called "miserabile depositum." (2) Voluntary, which
arises from the mere consent and agreement of the parties.
Dig. 16, 3, 2; Story, Bailm. § 44. The common law has
made no such division.
There is another class of deposits called "involuntary,"
which may be without the assent or even knowledge of
the depositor ; as lumber, etc., left upon another's land by
the subsidence of a flood. An "involuntary" deposit is one
made by the accidental leaving or placing of personal property in the possession of any person without negligence on
the part of the owner. Copelin v. Berlin Dyeworks
Laundry Co., 168 Cal. 715, 144 P. 961, 963, L.R.A.1915C,
712.
The civilians again divide deposits into "simple deposits," made by one or more persons having a common interest, . and "sequestrations'," made by one or more persons,
each of whom has a different and adverse interest in controversy touching it; and these last are of two sorts,"conventional," or such as are made by the mere agreement of the parties without any judicial act; and "judicial," or such as are made by order of a court in the
course of some proceeding. Thus, under Louisiana statutes, it is said that the difference between "sequestration"
and "deposit" is that the former may have for its object
both movable and immovable property, while the latter is
confined to movables. Raines v. Dunson, 145 La. 1011, 83
So. 224, 226.
There is another class of deposits called "irregular," as
when a person, having a sum of money which he does not
think safe in his own hands, confides it to another, who is
to return to him, not the same money, but a like sum when
he shall demand it. Poth. du Depot. 82, 83; Story, Bailm.
§ 84. A regular deposit is a strict or special' deposit; a
deposit which must be returned in specie; e., the thing
deposited must be returned. A quasi deposit is a kind of
i mplied or involuntary deposit, which takes place where a
party comes lawfully to the possession of another person's
property, by finding it. Story, Bailm. § 85. Particularly
with reference to money, deposits are also classed as general or spacial. A general deposit is where the money
deposited is not itself to be returned, but an equivalent in
money (that is, a like sum) is to be returned. It is equivalent to a loan, and the money deposited becomes the prop-
526
DEPOSITO
erty of the depositary. City of Canby v. Bank of Canby,
192 Minn. 571, 257 N.W. 520.
A special deposit is a deposit in which the identical thing
deposited is to be returned to the depositor. The particular object of this kind of deposit is safekeeping. Koetting v. State, 88 Wis. 502, 60 N.W. 822. Marine Bank v.
Fulton Bank, 69 U.S. 252, 2 Wall. 252, 17 L.Ed. 785. In
banking law, this kind of deposit is contrasted with a
"general" deposit, as above; but in the civil law it is the
antithesis of an "irregular" deposit. A gratuitous or naked
deposit is a bailment of goods to be kept for the depositor
without hire or reward on either side, or one for which
the depositary receives no consideration beyond the mere
possession of the thing deposited. Properly and originally,
all deposits are of this description; for according to the Roman law, a bailment of goods for which hire or a price is
to be paid, is not called "depositum" but "locatio." If
the owner of the property pays for its custody or care, it
is a "locatio custodies;" if, on the other hand, the bailee
pays for the use of it, it is "locatio rei." (See Locatio.)
But in the modern law of those states which have been Influenced by the Roman jurisprudence, a gratuitous or naked deposit is distinguished from a "deposit for hire," in
which the bailee is to be paid for his services in keeping
the article. There is also a specific deposit, which exists
where money or property is given to a bank for some
specific and particular purpose, as a note for collection,
money to pay a particular note, or property for some
other specific purpose. Officer v. Officer, 120 Iowa 389, 94
365.
N.W. 947, 98 Am. St.
the title-deeds of the land in the keeping of the
lender as pledgee.
In Banking Law
DEPOSITION. The testimony of a witness taken
upon interrogatories, not in open court, but in
pursuance of a commission to take testimony issued by a court, or under a general law on the
subject, and reduced to writing and duly authenticated, and intended to be used upon the trial of
an action in court. It is sometimes used as synonymous with "affidavit" or "oath," but its technical meaning does not include such terms. State
v. Lord, 42 N.M. 638, 84 P.2d 80, 94.
A written declaration under oath, made upon
notice to the adverse party for the purpose of enabling him to attend and cross-examine; or upon
written interrogatories. N. S. Sherman Machine
& Iron Works v. R. D. Cole Mfg. Co., 51 Okl. 353,
151 P. 1181, 1182. It is the giving of notice to the
adverse party which especially distinguishes a deposition from an affidavit. Zinner v. Louis Meyers
& Son, 181 Misc. 344, 43 N.Y.S.2d 319, 320.
Deposit slip. An acknowledgment that the
amount named therein has been received by the
bank; it is a receipt intended to furnish evidence
as between the depositor and depositary that on a
given date there was deposited the sum named
therein, the time of deposit, and amount deposited,
being also shown. In re Ruskay, C.C.A.N.Y., 5
F.2d 143, 147.
DEPOSITARY. The party receiving a deposit;
one with whom anything is lodged in trust, as "depository" is the place where it is put. A trustee;
fiduciary; one to whom goods are bailed to be
held without recompense. Stand. Diet. The obligation on the part of the depositary is that he
keep the thing with reasonable care, and, upon
request, restore it to the depositor, or otherwise
deliver it, according to the original trust. Brunner v. Edwards, 337 Pa. 513, 12 A.2d 36, 37.
DEPOSITATION. In Scotch law. Deposit or de
positum, the species of bailment so called. Bell.
The act of placing or lodging money in the custody of a bank or banker, for safety or convenience, to be withdrawn at the will of the depositor
or under rules and regulations agreed on. Also,
the money so deposited, or the credit which the
depositor receives for it. State Banking Board v.
James, Tex.Civ.App., 264 S.W. 145, 149.
"Deposit," according to its commonly accepted and generally understood meaning among bankers and by the
public, includes not only deposits payable on demand and
subject to check, but deposits not subject ,to check, for
which certificates, whether interest-bearing or not, may
be issued, payable on demand, or on certain notice, or at
a fixed future time. Jones v. O'Brien, 58 S.D. 213, 235 N.
W. 654, 659.
In Insurance Law
The delivery by a life insurance company of
securities to state commissioner of insurance as
required by statutes. Central Life Assur. Soc. v.
Birmingham, D.C.Iowa, 48 F.Supp. 863, 865.
The term sometimes is used in a special sense
to denote a statement made orally by a person
on oath before an examiner, commissioner, or
officer of the court, (but not in open court,) and
taken down in writing by the examiner or under
his direction. Sweet.
In Mining
A quantity of ore or mineral substances occurring naturally in the earth; as, a deposit of gold,
oil, etc. See Colorado Gold Dredging Co. v.
Stearns-Roger Mfg. Co., 60 Colo. 412, 153 P. 765.
In General
Deposit account. An account of sums lodged
with a bank not to be drawn upon by checks, and
usually not to be withdrawn except after a fixed
notice.
Deposit company. A company whose business
is the safe-keeping of securities or other valuables
deposited in boxes or safes in its building which
are leased to the depositors.
Deposit of title-deeds. A method of pledging
real property as security for a loan, by placing
In Ecclesiastical law. The act of depriving a
clergyman, by a competent tribunal, of his clerical orders, to punish him for some offense and to
prevent his acting in future in his clerical character. Ayl. Par. 206.
DEPOSITION DE BENE ESSE. Testimony to be
read at the trial, so far as relevant and competent,
as though the witness were present in court. Milprint, Inc., v. Macleod Laboratories, 127 N.J.L.
333, 22 A.2d 566, 567.
DEPOSITO. In Spanish law. Deposit; the species of bailment so called. Schm. Civil Law, 193.
A real contract by which one person confides to
the custody of another an object on the condition
527
DEPOSITOR
that it shall be returned to him whenever he
shall require it.
either under an agreement of the parties, and to
abide the event of pending litigation regarding it,
or by virtue of the direction of the court or a
judge, pending litigation regarding it. Brown;
Civ.Code La. 2926.
DEPOSITOR. One who makes a deposit.
In banking law, one who delivers and leaves
money with a bank on his order or subject to
check. Lummus Cotton Gin Co. v. Walker, 195
Ala. 552, 70 So. 754, 756; Austin v. Avant, Tex.
Civ.App., 277 S.W. 409, 410.
DEPRAVE. To defame; vilify; exhibit contempt
for. In England it is a criminal offense to "deprave" the Lord's Supper or the Book of Common
Prayer. Steph.Crim.Dig. 99.
DEPOSITORY. The place where a deposit (q. v.)
is placed and kept.
DEPRAVED MIND. An inherent deficiency of
moral sense and rectitude, equivalent to statutory
phrase "depravity of heart" defined as highest
grade of malice. Ramsey v. State, 114 Fla. 766,
154 So. 855.
Sometimes, also, a depositary; one with whom
something is deposited. Jones v. Marrs, 114 Tex.
62, 263 S.W. 570, 573.
United States depositories. Banks selected and
designated to receive deposits of the public funds
of the United States.
A mind which may become inflamed by liquor and passion to such a degreP that it ceases to care for human life
and safety is a "depraved mind." State v. Weltz, 155
Minn. 143, 193 N.W. 42, 44.
DEPOSITUM. Lat. In the civil law. One of the
forms of the contract of bailment, being a naked
bailment of goods to be kept for the use of the
bailor without reward. Coe v. Ricker, 214 Mass.
212, 101 N.E. 76, 78, 45 L.R.A.,N.S., 30, Ann.Cas.
1914B, 1178. See Deposit.
DEPRECIATION. A fall in value; reduction of
worth. New York Life Ins. Co. v. Anderson, C.C.A.
N.Y., 263 F. 527, 529. The deterioration, or the loss
or lessening in value, arising from age, use, and
improvements, due to better methods. Boston &
• A. R. Co. v. New York Cent. R. Co., 256 Mass. 600,
153 N.E. 19, 23; Miles v. People's Telephone Co.,
166 Wis. 94, 163 N.W. 652, 655.
One of the four real contracts specified by Justinian, and
having the following characteristics : (1) The depositary or
depositee is not liable for negligence, however extreme,
but only for fraud, dolus; (2) the property remains in
the depositor, the depositary having only the possession.
Precarium and sequestre were two varieties of the depositum.
DEPOT. A railroad freight or passenger station;
a place on the line of a railroad where passengers
may enter and leave the trains and where freight
is deposited for delivery; a place where the carrier is accustomed to receive merchandise, deposit
it, and keep it ready for transportation or delivery.
Missouri Pac. R. Co. v. Williamson, 195 Ark. 487,
112 S.W.2d 957, 958. Chesapeake & 0. Ry. Co. v.
Ricks, 146 Va. 10, 135 S.E. 685, 688.
A place for the deposit of goods; a warehouse,
or a storehouse. Weyman v. City of Newport, 153
Ky. 487, 156 S.W. lop, 111.
DEPRECIATION RESERVE. An account kept on
the books, as of a public utility, to offset the depreciation of the property due to time and use.
People ex rel. Adirondack Power & Light Corporation v. Public Service Commission, 193 N.Y.S. 186,
191, 200 App.Div. 268. It does not represent the
actual depreciation of its properties which is to
be deducted from the reproduction cost new to ascertain the present value for rate purposes; but
only what observation and experience suggest as
likely to happen, with a margin over. Southern
Bell Telephone & Telegraph Co. v. Railroad Commission of South Carolina, D.C.S.C., 5 F.2d 77, 96.
DEPREDATION. The act of plundering, robbing,
or pillaging. Deal v. U. S., 274 U.S. 277, 47 S.Ct.
613, 615, 71 L.Ed. 1045.
In French law. Pillage, waste, or spoliation of
goods, particularly of the estate of a decedent.
A place where military supplies or stores are
kept or troops assembled. U. S. v. Caldwell, 19
Wall. 264, 22 L.Ed. 114.
—Depot grounds. Station grounds. Atchison, T.
& S. F. Ry. Co. v. McCall, 48 Okl. 602, 150 P. 173,
174. The place where passengers get off and on
trains, where goods are loaded and unloaded, and
all grounds necessary, convenient, and actually
used for such purposes by the public and by the
railway company, including the place where cars
are switched and trains made up, also where
tracks are used for storing cars, and where the
public require open and free access to the railroad
for the purpose of such business. Prince v. Chicago & N. W. Ry. Co., 165 Wis. 212, 161 N.W. 765,
766.
DEPOT. In French law. The depositum of the
Roman and the deposit of the English law. It is
of two kinds, being either (1) depot simply so
called, and which may be either voluntary or necessary, and (2) sdquestre, which is a deposit made
DEPRESSION. A period of economic stress; deflation; panic. Trust Co. of N. J. v. Jefferson
Trust Co., 14 N.J.Misc. 656, 186 A. 732; McCuiston
v. Haggard, 21 Tenn.App. 277, 109 S.W.2d 413.
A hole or hollow. Rice v. Kansas City, Mo.App.,
16 S.W.2d 659, 661.
DEPRIVATION. In English ecclesiastical law.
The taking away from a clergyman of his benefice
or other spiritual promotion or dignity, either by
sentence declaratory in the proper court for fit and
sufficient causes or in pursuance of divers penal
statutes which declare the benefice void for some
nonfeasance or neglect, or some malfeasance or
crime. 3 Steph.Comm. 87, 88; Burn, Ecc.Law, tit.
"Deprivation." See Ayliffe, Parerg. 206; 1 Bla.
Comm. 393. See Degradation.
In American law. A taking away; confiscation;
as the deprivation of a constitutional right. Thus
528
DERELICT
a taking of property without due process of law;
Sundlun v. Zoning Board of Review of City of
Pawtucket, 50 R.I. 108, 145 A. 451, 454; or of liberty. Lynch v. City of Muskogee, D.C.Okl., 47
F.Supp. 589, 592.
DEPRIVE. To take. The term has this meaning
in a constitutional provision that no person shall
be "deprived of his property" without due process
of law, and denotes a taking altogether, a seizure,
a direct appropriation, dispossession of the owner.
Brown v. City of Atlanta, 167 Ga. 416, 145 S.E.
855, 857. It connotes want of consent. Sandel v.
State, 104 S.E. 567, 571, 115 S.C. 168, 13 A.L.R.
1268.
Special deputy. One appointed to exercise some
special function or power of the official or person
for whom he is appointed. Saxby v. Sonnemann,
318 Ill. 600, 149 N.E. 526, 528.
DEPUTIZE. To appoint a deputy; to appoint or
commission one to act as deputy to an officer. In a
general sense, the term is descriptive of empowering one person to act for another in any capacity
or relation, but in law it is almost always restricted
to the substitution of a person appointed to act
for an officer of the law.
DEPUTY. A substitute; a person duly authorized
by an officer to exercise some or all of the functions pertaining to the office, in the place and stead
of the latter. Byrnes v. Windels, 265 N.Y. 403, 193
N.E. 248, 249. One appointed to substitute for another with power to act for him in his name or
behalf. Saxby v. Sonnemann, 149 N.E. 526, 528,
318 Ill. 600; Waggoner v. State, 183 Miss. 510, 184
So. 633, 634.
A deputy differs from an assignee, in that an assignee
has an interest in the office itself, and does all things in
his own name, for whom his grantor shall not answer, except in special cases; but a deputy has not any Interest in
the office, and is only the shadow of the officer in whose
name he acts. And there is a distinction in doing an act
by an agent and by a deputy. An agent can only bind his
principal when he does the act in the name of the principal. But a deputy may do the act and sign his own name,
and it binds his principal; for a deputy has, in law, the
whole power of his principal. Wharton.
Deputy consul. See Consul.
Deputy lieutenant. The deputy of a lord lieutenant of a county in England.
Deputy sheriff. One appointed to act in the
place and stead of the sheriff in the official business of the latter's office. A general deputy (sometimes called "undersheriff"; see Shirran v. Dallas,
21 Cal.App. 405, 132 P. 454, 458; Delfelder v. Teton
Land & Investment Co., 46 Wyo. 142, 24 P.2d 702,
is one who, by virtue of his appointment, has authority to execute all the ordinary duties of the office of sheriff, and who executes process without
any special authority from his principal. A special deputy, who is an officer pro hac vice, is one
appointed for a special occasion or a special service, as, to serve a particular writ or to assist in
keeping the peace when a riot or tumult is expected or in progress. He acts under a specific and
not a general appointment and authority. Allen
v. Smith, 12 N.J.Law, 162; Wilson v. Russell, 4
Dak. 376, 31 N.W. 645.
Deputy steward. A steward of a manor may
depute or authorize another to hold a court; and
Black's Law Dictionary Revised 4th Ed.-34
the acts done in a court so holden will be as legal
as if the court had been holden by the chief stew•
and in person. So an under steward or deputy
may authorize another as subdeputy, pro hac vice,
to hold a court for him; such limited authority
not being inconsistent with the rule delegatus
non potest delegare. Wharton.
DERAIGN, Apparently, literally, to confound, and
disorder, or to turn out of course, or displace; as
deraignment or departure out of religion, in St.
31 Hen. VIII. c. 6. In the common law, the word
is used generally in the sense of to prove; viz., to
deraign a right, deraign the warranty, etc. Glanv.
lib. 2, c. 6; Fitzh.Nat.Brev. 146. Perhaps this
word "deraign," and the word "deraignment," derived from it, may be used in the sense of to
prove and a proving, by disproving of what is
asserted in opposition to truth and fact. Jacob.
It is used as referring to a decree "which deraigns
his title from a false source." Paxson v. Brown,
61 F. 874, 884, 10 C.C.A. 135.
DERAILER. A small but heavy iron device attached to a rail which opens and closes over the
rail by a lever, so as to derail or turn off the trackcars approaching the closed derailer from the expected direction. Brady v. Southern Ry. Co., 64
S.Ct. 232, 234, 320 U.S. 476, 88 L.Ed. 239.
DERAILMENT. The act of going off or the state
of being off the rails of a railroad. Graham v.
Insurance Co. of North America, 220 Mass. 230,
107 N.E. 915.
DERANGEMENT. See Insanity.
DERECHO. In Spanish law. Law or right. Derecho comun, common law. The civil law is so
called. A right. Derechos, rights. Also, specifically, an impost laid upon goods or provisions,
or upon persons or lands, by way of tax or con.
tribution. Noe v. Card, 14 Cal. 576, 608.
DERELICT. Forsaken; abandoned; deserted;
cast away.
Personal property abandoned or thrown away
by the owner in such manner as to indicate that
hp intends to make no further claim thereto. 2
Bl.Comm. 9; 2 Reeve, Eng.Law, 9; Thompson v.
One Anchor and Two Anchor Chains,, D.C.Wis.,
221 F. 770, 772.
Land left uncovered by the receding of water
from its former bed. 2 Rolle, Abr. 170; 2 Bl,
Comm. 262; 1 Crabb, Real Prop. 109.
In Maritime Law
A boat or vessel found entirely deserted or
abandoned on the sea without hope or intention of
recovery or return by the master or crew, whether
resulting from wreck, accident, necessity, or voluntary abandonment. U. S. v. Stone, C.C.Tenn., 8
F. 232-243; Cromwell v. The Island City, 1 Black
529
DERELICT
121, 17 L.Ed. 70; The Hyderabad, D.C.Wis., 11 F.
749-754; The No. 105, Belcher Oil Co. v. Griffin,
C.C.A.Fla., 97 F.2d 425, 426; Mengel Box Co. v.
Joest, 127 Miss. 461, 90 So. 161, 163.
Quasi Derelict
When a vessel, without being abandoned, is no
longer under the control or direction of those on
board, (as where part of the crew are dead, and
the remainder are physically and mentally incapable of providing for their own safety,) she
is said to be quasi derelict. Sturtevant v. Nicholaus, 1 Newb.Adm. 449, Fed.Cas.No.13,578. When
the crew have left their vessel temporarily, with
the intention of returning to resume possession,
she is not technically a derelict, but is what may
be termed a "quasi derelict." The Alcazar, D.C.
N.C., 227 F. 633, 650.
DERELICTION. The gaining of land from the
water, in consequence of the sea shrinking back
below the usual water mark; the opposite of
alluvion (q. v.) Dyer, 326b; 2 Bl.Comm. 262; 1
Steph.Comm. 419; Linthicum v. Coan, 64 Md. 439,
2 A. 826, 54 Am.Rep. 775; Also, land left dry by
running water retiring imperceptibly from one of
its shores and encroaching on the other. Slattery
v. Arkansas Natural Gas Co., 138 La. 793, 70 So.
806. See Reliction; Accretion.
In the Civil Law
The voluntary abandonment of goods by the
owner, without the hope or the purpose of retuning to the possession. Jones v. Nunn, 12 Ga. 473;
Livermore v. White, 74 Me. 456, 43 Am.Rep. 600.
"Dereliction" or "renunciation" of property at sea as
well as on land requires both the intention to abandon and
external action. The No. 105, C.C.A.Fla., 97 F.2d 425, 426.
Derivativa potestas non potest esse major primitiva. Noy, Max.; Wing.Max. 66. The derivative
power cannot be greater than the primitive. The
power which is derived cannot be greater than
that from which it is derived. Finch.Law, b. 1,
c. 3, p. 11.
DERIVATIVE. Coming from another; taken
from something preceding; secondary; that which
has not its origin in itself, but owes its existence
to something foregoing. Anything obtained or
deduced from another. State v. Wong Fong, 75
Mont. 81, 241 P. 1072.
DERIVE. To receive, as from a -source or origin.
Crews v. Commissioner of Internal Revenue, C.C.
A.10, 89 F.2d 412, 416. To proceed from property,
sever from capital, however invested or employed,
and to come in, receive or draw 'by taxpayer for
his separate use, benefit, and disposal. Staples v.
United States, D.C.Pa., 21 F.Supp. 737, 739.
DERIVED. Received. Langstaff v. Lucas, D.C.,
9 F.2d 691, 693. See, also, Connell v. Harper, 202
Ky. 406, 259 S.W. 1017, 1019.
DEROGATION. The partial repeal or abolishing
of a law, as by a subsequent act which limits its
scope or impairs its utility and force. Distinguished from abrogation, which means the entire
repeal and annulment of a law. Dig. 50, 17, 102.
DEROGATORY CLAUSE. In a will, this is a sentence or secret character inserted by the testator,
of which he reserves the knowledge to himself,
with a condition that no will he may make thereafter should be valid, unless this clause be inserted word for word. This is done as a precaution
to guard against later wills being extorted by violence, or otherwise improperly obtained. By the
law of England such a clause would be void, as
tending to make the will irrevocable. Wharton.
Derogatur legi, cum pars detrahitur; abrogatur
legi, cum prorsus tollitur. To derogate from a
law is to take away part of it; to abrogate a law
is to abolish it entirely. Dig. 50, 17, 102.
DESAFUERO. In Spanish law. An irregular action committed with violence against law, custom,
or reason.
DESAMORTIZACION. In Mexican law. The
desamortizacion of property is to take it out of
mortmain, (dead hands;) that is, to unloose it
from the grasp, as it were, of ecclesiastical or civil
corporations. The term has no equivalent in English. Hall, Mex.Law, § 749.
DESCEND. To pass by succession; as when the
estate vests by operation of law in the heirs immediately upon the death of the ancestor. Trahern v. Woolwine, 109 W.Va. 623, 155 S.E. 909,
910. The term, as used in some statutes, includes
an acquisition by devise. Cordon v. Gregg, 164
Or. 306, 101 P.2d 414, 415.
To pass down from generation to generation.
Weedin v. Chin Bow, C.C.A.Wash., 7 F.2d 369.
To go ;—often used as a word of transfer. Gordon v. Cadwalader, 164 Cal. 509, 130 P. 18, 20.
DERIVATIVE ACTION. A suit by a shareholder
to enforce a corporate cause of action. The corporation is a necessary party, and the relief which
is granted is a judgment against a third person in
favor of the corporation. Price v. Gurney, Ohio,
65 S.Ct. 513, 516, 324 U.S. 100, 89 L.Ed. 776.
As used in wills, the word "descend" is often regarded as
a general expression equivajent to the words "go to" or
"belong to," and as indicating a passing of title by the
force of the will rather than of the statute. Klingman v.
Gilbert, 90 Kan. 545, 135 P. 682, 684; Carter v. Reserve
Gas Co., 84 W.Va. 741, 100 S.E. 738, 742.
DERIVATIVE CONVEYANCES. Conveyances
which presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by
such original conveyance. They are releases, confirmations, surrenders, assignments, and defeasances. 2 Bl.Comm. 324.
DESCENDANT. One who is descended from another; a person who proceeds from the body of
another, such as a child, grandchild, etc., to the
remotest degree. The term is the opposite of
"ascendant," (q. v.) Rasmusson v. Unknown Wife
of Hoge, 293 Ill. 101, 127 N.E. 356, 359; State v.
Yturria, 204 S.W. 315, 316, 109 Tex. 220, L.R.A.
530
DESCRIPTIO
1918F, 1079. In the plural, the term means offspring or posterity in general; Carter Oil Co. v.
Scott, D.C.Okl., 12 F.2d 780, 783. Issue. Burkley
v. Burkley, 266 Pa. 338, 109 A. 687, 688; In re
Tinker's Estate, 91 Oki. 21, 215 P. 779, 781. Also,
all those to whom an estate descends, whether it
be in a direct or collateral line from the intestate.
Oakley v. Davey, 49 Ohio App. 113, 195 N.E. 406.
One on whom the law has cast the property
by descent. Smith v. Thom, 158 Ky. 655, 166 S.W.
182. An heir. Lee v. Roberson, 297 Ill. 321, 130
N.E. 774, 778. In this sense, the term is frequently held to include an adopted child. In re Cadwell's Estate, 26 Wyo. 412, 186 P. 499, 501. For
"Family," see that title.
Descendants is a good term of description in a will, and
includes all who proceed from the body of the person
named; as grandchildren and great-grandchildren. Amb.
397; 2 Hil.Real Prop. 242.
Lineal Descendant
One who is in the line of descent from the ancestor. Green v. Hussey, 228 Mass. 537, 117 N.E.
798. Lawful issue. Sassier v. J. Connelly Const.
Co., 227 Mich. 251, 198 N.W. 989, 991. The term
may include an adopted child; Denton v. Miller,
110 Kan. 292, 203 P. 693, 694; who is as lawfully
in the line of descent as if placed there by birth;
Fisher v. Gardnier, 183 Mich. 660, 150 N.W. 358.
Contra: State v. Yturria, 109 Tex. 220, 204 S.W.
315, 316, L.R.A.1918F, 1079.
mediateness of the pedigree or consanguinity. Thus, a descent from the grandfather, who dies in possession, to the
grandchild, the father being then dead, or from the uncle
to the nephew, the brother being dead, is, in the former
sense, in law, immediate descent, although the one is
collateral and the other lineal; for the heir is in the per,
and not in the per and cut. On the other hand, with
reference to the line of pedigree or consanguinity, a descent
is often said to be immediate, when the ancestor from
whom the party derives his blood is immediate, and without any intervening link or degrees; and mediate, when
the kindred is derived from him mediante altero, another
ancestor intervening between them. Thus a descent in
lineals from father to son is in this sense immediate;
but a descent from grandfather to grandson, the father
being dead, or from uncle to nephew, the brother being
dead, is deemed mediate; the father and the brother being,
in these latter cases, the medium deferens, as it is called,
of the descent or consanguinity. Furenes v. Mickelson, 86
Iowa, 508, 53 N.W. 416.
Descent was denoted, in the Roman law, by the
term "successio," which is also used by Bracton,
from which has been derived the succession of
the Scotch and French jurisprudence.
Line of Descent
The order or series of persons who have descended one from the other or all from a common
ancestor, considered as placed in a line of succession in the order of their birth, the line showing the connection of all the blood-relatives.
Collateral line. A line of descent connecting
persons who are not directly related to each other
as ascendants or descendants, but whose relationship consists in common descent from the same
ancestor.
DESCENDER. Descent; in the descent. See Formedon.
Direct line. A line of descent traced through
those persons only who are related to each other
directly as ascendants or descendants. State ex
rel. Walton v. Yturria, 109 Tex. 220, 204 S.W. 315,
316, L.R.A.1918F, 1079.
DESCENDIBLE. Capable of passing by descent,
or of being inherited or transmitted by devise,
(spoken of estates, titles, offices, and other property.) Collins v. Smith, 105 Ga. 525, 31 S.E. 449.
DESCENT. Hereditary succession. Succession to
the ownership of an estate by inheritance, or by
any act of law, as distinguished from "purchase."
Title by descent is the title by which one person,
upon the death of another, acquires the real estate of the latter as his heir at law. 2 Bl.Comm.
201; Adams v. Akerlund, 168 Ill. 632, 48 N.E.
454; In re Yahola's Heirship, 142 Okl. 79, 285 P.
946. The title by inheritance is in all cases called
descent, although by statute law the title is sometimes made to ascend.
"Descent" in its broadest sense signifies an inheritance
cast upon any one capable of receiving it, whether heir at
common law or not. Kicey v. Kicey, 114 N.J.Eq. 116, 168
A. 424, 426.
The division among those legally entitled thereto of the real property of intestates.
Classification
Descents are of two sorts, lineal and collateral. Lineal
descent is descent in a direct or right line, as from father or
grandfather to son Dr grandson. In re Herrick's Estate,
273 N.Y.S. 803, 152 Misc. 9. Collateral descent is descent
in a collateral or oblique line, that is, up to the common
ancestor and then down from him, as from brother to
brother, or between cousins. Levy v. McCartee, 6 Pet. 112,
8 L.Ed. 334. They are also distinguished into mediate and
immediate descends. But these terms are used in different
senses. A descent may be said to be a mediate or immediate descent of the estate or right; or it may be said to be
mediate or immediate, in regard to the mediateness or im-
Maternal line. A line of descent or relationship
between two persons which is traced through the
mother of the younger.
Paternal line. A similar line of descent traced
through the father.
For "Family," see that title.
DESCENT CAST. The devolving of realty upon
the heir on the death of his ancestor intestate.
Another name for what the older writers called
a "descent which tolls entry." When a person had
acquired land by disseisin, abatement, or intrusion, and died seised of the land, the descent of it
to his heir took away or tolled the real owner's
right of entry, so that he could only recover the
land by an action. Co.Litt. 237 b; Rap. & L. Dict.
DESCRIBE. To narrate, express, explain. Boynton Real Estate Co. v. Woodbridge Tp., 94 N.J.
Law, 226, 109 A. 514, 515. Of land, to give the
metes and bounds. Livingston v. Seaboard Air
Line R. Co., 100 S.C. 18, 84 S.E. 303.
DESCRIPTIO PERSONI. Lat. Description of
the person. By this is meant a word or phrase
used merely for the purpose of identifying or
pointing out the person intended, and not as an
531
DESCRIPTIO
intimation that the language in connection with
which it occurs is to apply to him only in the official or technical character which might appear
to be indicated by the word. . Forrester v. Cantley, 227 Mo.App. 325, 51 S.W.2d 550, 551.
ly; to abandon. It is essentially willful in nature.
Stevens v. Stevens, 304 Ill. 297, 136 N.E. 785, 787;
Stover v. Stover, 94 N.J.Eq. 703, 120 A. 788, 789.
DESERTER. As applied to seamen, one continually and intentionally absent from the ship, constituting a quitting of the service of the vessel.
The Strathearn, D.C.Fla., 239 F. 583, 586. Compare Mystic S. S. Co. v. Stromland, C.C.A.Va., 20
F.2d 342, 344; The Ella Pierce Thurlow, D.C.Va.,
18 F.2d 675, 676.
In wills, it frequently happens that the word heir is
used as a descriptio personce. A legacy "to the eldest son"
of A would be a designation of the person. See 1 Roper,
Leg. c. 2.
DESCRIPTION. A delineation or account of a
particular subject by the recital of its characteristic accidents and qualities. Ayliffe, Pand. 60.
Under the regulations of the Navy Department, a "deserter" is one who is absent without leave and with a
manifest intention not to return, while a "straggler" is one
absent without leave, with the probability that he does
not intend to desert, but, if his absence continues for 10
days, he becomes a deserter. Reed v. United States, C.C.A.
N.Y., 252 F. 21, 22.
A written enumeration of items composing an
estate, or of its condition, or of titles or documents; like an inventory, but with more particularity, and without involving the idea of an appraisement.
As applied to the matrimonial home, one who
by his words, conduct, demeanor, and attitude produces an intolerable condition which forces the
other spouse to withdraw from the joint habitation to a more peaceful one. West v. West, 264
Ky. 826, 95 S.W.2d 789, 790.
An exact written account of an article, mechanical device, or process which is the subject of an
application for a patent.
A method of pointing out a particular person by
referring to his relationship to some other person
or his character as an officer, trustee, executor,
etc.
DESERTION. The act by which a person abandons and forsakes, without justification, or unauthorized, a station or condition of public or social
life, renouncing its responsibilities and evading
its duties.
That part of a conveyance, advertisement of
sale, etc., which identifies the land or premises intended to be affected. Argyle v. Bonneville Irr.
Dist., 74 Utah, 480, 280 P. 722, 727.
A fair portrayal of the chief features of the proposed law in words of plain meaning, so that it
can be understood by the persons entitled to vote.
Sawyer Stores v. Mitchell, 103 Mont. 148, 62 P.2d
342, 348; In re Opinion of the Justices, Mass., 9
N.E.2d 189, 192.
That part of affidavit for search warrant describing the place to be searched. Turner v. State, 39
Okl.Cr. 74, 263 P. 476.
A willful abandonment of an employment or duty in violation of a legal or moral obligation.
Stoneburner v. Theodoratos, Cal.App., 30 P.2d
1001, 1003.
Constructive Desertion
That arising where an existing cohabitation is
put an end to by misconduct of one of the parties,
provided such misconduct is itself a ground for
divorce a vinculo or a mensa. Succhierelli v. Succhierelli, 101 N.J.Eq. 30, 137 A. 839. See, also,
Hoffhines v. Hoffhines, 146 Md. 350, 126 A. 112,
113, 38 A.L.R. 332.
DESCRIPTIVE. Containing a description; serving or aiming to describe; having the quality of
representing. Sawyer Stores v. Mitchell, 103
Mont. 148, 62 P.2d 342, 348.
Descriptive words are not susceptible of exclusive adoption by any one as part of a corporate
name. Sterling Products Corporation v. Sterling
Products, D.C.N.Y., 43 F.Supp. 548, 550; are not
registerable under the Trade-Mark Act § 2; 15
U.S.C.A. § 1052. Judson Dunaway Corp. v. Hygienic Products Corp., 178 F.2d 461; and cannot
ordinarily form the basis for an injunction against
their use by another on ground of unfair competition. Merlino v. Schmetz, 66 R.I. 425, 20 A.2d
266, 268.
Obstinate Desertion
See that title.
DESECRATE. To violate sanctity of, to profane,
or to put to unworthy use. City of Shreveport v.
Harris, 178 La. 685, 152 So. 330.
The calling on householders after 10 a. m. on Sunday by
members of an organized religious order for purpose of
propagandizing their religious views by spoken and printed words, however unwelcome to householders, did not,
in itself, constitute a desecration of the Sabbath. State v.
Mead, 230 Iowa 1217, 300 N.W. 523, 524.
DESERT. To leave or quit with an intention to
cause a permanent separation; to forsake utter-
In Maritime Law
The act by which a seaman deserts and abandons a ship or vessel, in which he had engaged to
perform a voyage, before the expiration of his
time, and without leave. By desertion, in the maritime law, is meant, not a mere unauthorized absence from the ship without leave, but an unauthorized absence from the ship, with an intention
not to return to her service, or, as it is often expressed, animo non revertendi; that is, with an
intention to desert. The Cripple Creek, D.C.Pa.,
52 F.Supp. 710, 712; (strike) The Youngstown, C.
C.A.La., 110 F.2d 968, 970.
In Matrimonial and Divorce Law
An actual abandonment or breaking off of matrimonial cohabitation, by either of the parties, and
a renouncing or refusal of the duties and obligations of the relation, with an intent to abandon
or forsake entirely and not to return to or resume
532
DESIGNED
Woodruff, 3 Fed.Cas. 424; Henderson v. Tompkins,
C.C.Mass., 60 F. 758.
marital relations, occurring without legal justification either in the consent or the wrongful conduct of the other party. State v. Baker, 112 La.
801, 36 So, 703. Williams v. Williams, 29 N.E. 98,
130 N.Y. 193, 14 L.R.A. 220, 27 Am.St.Rep. 517.
The willful forsaking and desertion of duties
of parenthood, and leaving child in a dependent
condition. Bowling v. State, 62 Ga. 540, 8 S.E.2d
697,
In Military Law
An offense which consists in the abandonment
of his post and duties by a person commissioned
or enlisted in the army or navy, without leave and
with the intention not to return. Hollingsworth V.
Shaw, 19 Ohio St. 432, 2 Am.Rep. 411; In re
Sutherland, D.C., 53 F. 551. There is a difference
between desertion and simple "absence without
leave;" in order to constitute the former, there
must be an intention not to return to the service.
Hanson v. South Scituate, 115 Mass. 336. See Deserter.
"Design, in the view of the patent law, is that characteristic of a physical substance which, by means of lines,
i mages, configuration, and the like, taken as a whole,
makes an impression, through the eye, upon the mind of
the observer. The essence of a design resides not in the
elements individually, nor in their method of arrangement,
but in the tout ensemble—in that indefinable whole that
awakens some sensation in the observer's mind. Impressions thus imparted may be complex or simple; * * *.
But whatever the impression, there is attached in the
mind of the observer, to the object observed, a sense of
uniqueness and character." Pelouze Scale & Mfg. Co. v.
American Cutlery Co., 102 F. 916, 919, 43 C.C.A. 52; Bayley & Sons v. Braunstein Bros. Co., D.C.N.Y., 246 F. 314,
317.
DESIGNATE. To indicate or set apart for a purpose or duty—with, to or for—as, to designate an
-officer for a command. Mutual Discount Corporation v. Nagy, 111 N.J.L. 592, 169 A. 185, 186.
To nominate. Sredzinski v. Schmieding, 283 N.
Y.S. 332, 334, 245 App.Div. 398.
Designatio justiciariorum est a rege; jurisdictio
vero ordinaria a lege. 4 Inst. 74. The appointment of justices is by the king, but their ordinary
jurisdiction by the law.
DESERVING. Worthy or meritorious, without
regard to condition or circumstances. In no sense
of the word is it limited to persons in need of assistance, or objects which come within the class
of charitable uses. Nichols v. Allen, 130 Mass.
211, 39 Am.Rep. 445.
DESIGNATING PETITION. Means used to designate a candidate for a party nomination at a primary election or for election to party position.
Potash v. Molik, 230 N.Y.S.2d 544, 548, 35 Misc.2d
1.
DESHONORA. In Spanish law. Dishonor; injury; slander. Las Partidas, pt. 7, tit. 9, 1. 1, 6.
DESIGNATIO PERSON2E. The description of a
person or a party to a deed or contract. See, also,
Descriptio Person.
Designatio unius est exclusio alterius, et expressum facit cessare taciturn. Co. Litt. 210. The
specifying of one is the exclusion of another, and
that which is expressed makes that which is understood to cease. (The appointment or designation of one is the exclusion of the other; and that
which is expressed prevails over that which is
implied.)
DESICCATE. To exhaust or remove moisture
from; dry thoroughly; especially to free from
moisture with view to preserving. In re Benner,
Cust. & Pat. App., 46 F.2d 383, 384,
DESIGN. To form plan or scheme of, conceive
and arrange in mind, originate mentally, plan out,
contrive. Also, the plan or scheme conceived in
mind and intended for subsequent execution, preliminary conception of idea to be carried into effect by action, contrivance in accordance with preconceived plan. State v. Pickus, 63 S.D. 209, 257
N.W. 284. A project, an idea. 3 H. & N. 301. See,
also, Designed.
As a term of art, the giving of a visible form to
the conceptions of the mind, or invention. Binns
v. Woodruff, 4 Wash.C.C. 48, Fed. Cas. No. 1,424.
In Evidence
Purpose or intention, combined with plan, or
implying a plan in the mind. Burrill, Circ.Ev. 331;
State v. Grant, 86 Iowa 216, 53 N.W. 120.
In Patent Law
The drawing or depiction of an original plan
or conception for a novel pattern, model, shape,
or configuration, to be used in the manufacturing
or textile arts or the fine arts, and chiefly of a
decorative or ornamental character. "Design patents" are contrasted with "utility patents," but
equally involve the exercise of the inventive or
originative faculty. Gorham Co. v. White, 14
Wall. 524, 20 L.Ed. 731; Western Electric Manufacturing Co. v. Odell, D.C.I1L, 18 F. 321; Binns v.
DESIGNATION. An addition to a name, as of
title, profession, trade, or occupation, to distinguish the person from others. Inglis v. Pontius,
102 Ohio St. 140, 131 N.E. 509, 511, 512.
A description or descriptive expression by which
a person or thing is denoted in . a will without using the name.
Also, an appointment or assignment, as to a
particular office. Santa Barbara County v. Janssens, 177 Cal. 114, 169 P. 1025, 1027, L.R.A.1918C,
558; Cunio v. Franklin County, 315 Mo. 405, 285
S.W. 1007, 1008.
The act of pointing out, distinguishing by marks
of description, or calling by a distinctive title.
Thrailkill v. Smith, 106 Ohio St. 1, 138 N.E. 532,
534; West v. Edward Rutledge Timber Co., C.C.
A.Idaho, 221 F. 30, 35; State v. Madison State
Bank of Virginia City, 77 Mont. 498, 351 P. 548,
549; Carlyle v. State Highway Commission, 193
N.C. 36, 136 S.E. 612, 620.
DESIGNED. Contrived or taken to be employed
for a particular purpose. People v. Dorrington,
533
DESIGNEDLY
221 Mich. 571, 191 N.W. 831, 832. Fit, adapted,
prepared, suitable, appropriate. Thomas v. State,
34 Okl.Cr. 49, 244 P. 816. Intended, adapted, or
designated. The term may be employed as indicating a bad purpose with evil intent. Bruce v.
Sibeck, Cal.App., 78 P.2d 741, 743.
DESIGNEDLY. Sometimes equivalent to the
words "wilfully," "knowingly," "unlawfully," and
"feloniously." State v. Avery, 111 Kan. 588, 207
P. 838, 840, 23 A.L.R. 453.
DESIRE. To ask, to request. Fossett v. State,
34 Okl.Cr. 106, 245 P. 668, 669. Ordinarily, to wish
for more or less earnestly. Woods v. Postal Telegraph-Cable Co., 205 Ala. 236, 87 So. 681, 684,
27 A.L.R. 834. Sometimes, to empower or authorize. Walters' Guardian v. Ransdell, 218 Ky. 267,
291 S.W. 399, 400. According to context or circumstances, the word may import a request or
even a demand. Cleveland Clinic Foundation v.
Humphrys, C.C.A.Ohio, 97 F.2d 849, 857, 121 A.
L.R. 163.
This term, used in a will in relation to the management
and distribution of property, has been interpreted by the
courts with different shades of meaning, varying from the
mere expression of a preference to a positive command.
See In re Bearinger's Estate, 336 Pa. 253, 9 A.2d 342, 343;
Beakey v. Knutson, 90 Or. 574, 174 P. 1149, 1150.
The word "desire" may be as effective as if the word
"devise" or "bequeath" Rad been used. Drinkard v.
Hughes, Tex.Civ.App., 32 S.W.2d 935, 936.
The word "desire," in a will, raises a trust, where the
objects of that desire are specified; Vandyck v. Van
Beuren, 1 Cai. (N.Y.) 84.
MSISTEMENT. The name of a doctrine under
which the court, in construing a foreign will, applies the law of the forum on the theory that
there is a hiatus. In re Tallmadge, 181 N.Y.S.
336, 341, 109 Misc. 696.
DESLINDE. A term used in the Spanish law,
denoting the act by which the boundaries of an
estate or portion of a country are determined.
DESMEMORIADOS. In Spanish law. Persons
deprived of memory. White, New Recop. b. 1, tit.
2, c. 1, § 4.
DESPACHEURS. In maritime law. Persons appointed to settle cases of average.
DESPATCHES. Official communications of official persons on the affairs of government.
DESPERATE. Hopeless; worthless. This term
is used in inventories and schedules of assets, particularly by executors, etc., to describe debts or
claims which are considered impossible or hopeless of collection. See Schultz v. Pulver, 11 Wend.
( N.Y.) 365; Darrow v. Rohrer, 71 Colo. 417, 207
P. 861; Toll. Ex. 248; 2 Wms. Ex. 644; 1 Chitt. Pr.
580.
DESPERATE DEBT. A hopeless debt; an irrecoverable obligation.
DESPITE. Contempt. Despitz, contempts. Kelham.
DESPITUS. Contempt. See Despite. A contemptible person. Fleta, lib. 4, c. 5.
DESPOIL. This word involves, in its signification, violence or clandestine means by which one
is deprived of that which he possesses. Its Spanish equivalent, despojar, is a term used in Mexican law. Sunol v. Hepburn, 1 Cal. 268.
DESPOJAR. A possessory action of the Mexican
law. It is brought to recover possession of immovable property, of which one has been despoiled (despojado) by another. See, also, Despoil.
DESPONSATION. The act of betrothing persons
to each other.
DESPOSORIO. In Spanish law. Espousals; mutual promises of future marriage. White, New
Recop. b. 1, tit. 6, c. 1, § 1.
DESPOT. This word, in its original and most
simple acceptation, signifies master and supreme
lord; it is synonymous with monarch; but taken
in bad part, as it is usually employed, it signifies
a tyrant. In some states, despot is the title given to the sovereign, as king is given in others.
Enc. Lond.
DESPOTISM. That abuse of government where
the sovereign power is not divided, but united in
the hands of a single man, whatever may be his
official title. It is not, properly, a form of government. Toullier, Dr.Civ.Fr. tit. prel. n. 32;
Rutherf. Inst. b. 1, c. 20, § 1.
"Despotism" is not exactly synonymous with
"autocracy," for the former involves the idea of
tyranny or abuse of power, which is not necessarily implied by the latter. Every despotism is
autocratic; but an autocracy is not necessarily
despotic.
DESRENABLE. L. Fr. Unreasonable. Britt. c.
121.
DESSAISISSEMENT. In French law. When a
person is declared bankrupt, he is immediately
deprived of the enjoyment and administration of
all his property; this deprivation, which extends
to all his rights, is called "dessaisissement." Arg.
Fr. Merc. Law, 556.
DESTINATION. The purpose to which it is intended an article or a fund shall be applied. A
testator gives a destination to a legacy when he
prescribes the specific use to which it shall be put.
The port at which a ship is to end her voyage is
called her "port of destination." Pardessus, no.
600.
The phrases "port of destination" and "port of discharge" are not equivalent; U. S. v. Barker, 5 Mason 404,
Fed.Cas.No.14,516. See Sheridan v. Ireland, 66 Me. 65.
DESTINATION DU PERE DE FAMILLE. A use
which owner has intentionally established on one
part of his property in favor of another part, and
which is equal to a title with respect to perpetual
and apparent servitudes thereon. Woodcock v.
Baldwin, 51 La.Ann. 989, 26 So. 46.
534
DETAINMENT
DESTITUTE. Not possessing the necessaries of
life and in a condition of extreme want. Moorman
v. State, 129 Miss. 864, 93 So. 368. Necessitous.
Ex parte Strong, 95 Tex.Cr.R. 250, 252 S.W. 767,
769. Having no money or other property available for one's maintenance or support. Norridgewock v. Solon, 49 Me. 385; Woods v. Perkins,
43 La.Ann. 347, 9 So. 48.
according to some, the same meaning. 1 Reeve,
Eng. Law, 385; 3 Bl.Comm. 223. Britton, how
ever, makes a distinction between waste of woods
and destruction of houses. Britt. c. 66.
DESTITUTE OR NECESSITOUS CIRCUMSTANCES. Circumstances in which one needs
the necessaries of life, which cover not only primitive physical needs, things absolutely indispensable to human existence and decency, but those
things, also, which are in fact necessary to the
particular person left without support. State v.
Waller, 90 Kan. 829, 136 P. 215, 217, 49 L.R.A.,N.S.,
588.
DESUETUDE. Disuse; cessation, or discontinuance of use;—especially in the phrase, "to fall
into desuetude." Applied to obsolete statutes.
James v. Comm., 12 Serg. & R. (Pa.) 227.
DESUBITO. To weary a person with continual
barkings, and then to bite; spoken of dogs. Leg
Alured, 26, cited in Cunningham's Dict.
DETACHIARE. To seize or take into custody
another's goods or person by writ of attachment
or course of law. Cunningham.
A wife may be In "destitute or necessitous circumstances" though she is being given shelter and food by a
child or by sympathizing relatives, friends, or strangers, if
she does not have property or money available for such
necessities or ordinary comforts of life as her husband can
reasonably furnish. State v. Sharp, 111 A. 909. 910, 1 W.W.
Harr., Del., 148; Brandel v. State, 161 Wis. 532, 154 N.W.
997.
Young children, without property, are in "destitute or
necessitous circumstances," within the. Delaware Nonsupport Act (Rev.Code 1915, §§ 3033-3046), when the father
can, but does not, and the mother cannot out of her independent means, provide for them, though the mother
and children are supported by the maternal grandmother
or grandfather. State v. Nelson, 114 A. 863, 864, 1 W.W.
Harr. (Del.) 436; Donaghy v. State, 100 A. 696, 710, 6
Boyce (Del.) 467.
DESTROY. As used in policies of insurance,
leases, and in maritime law, and under various
statutes, this term is often applied to an act which
renders the subject useless for its intended purpose, though it does not literally demolish or annihilate it. Davis v. Parker, 200 Ky. 847, 255 S.W.
836 (leased buildings) ; Louisville & N. R. Co. v.
Commonwealth, 190 Ky. 78, 226 S.W. 113, 117 (railroad station) ; George v. McManus, 27 Cal.App.
414, 150 P. 73, 74 (automobile).
To "destroy" a vessel within the meaning of an act of
congress means to unfit the vessel for service, beyond the
hope of recovery by ordinary means. U. S. v. Johns, 1
Wash.C.C. 363, Fed.Cas.No.15,481; U. S. v. Johns, 4 Dall.
412, 1 L. Ed. 888.
The contents of a glass and bottle, emptied into a pail
of water immediately when accused saw two uniformed
police officers enter his building, are "destroyed" within
the meaning of a statute making it unlawful to secrete or
destroy any fluids on premises being searched for the purpose of preventing seizure. Pitkunas v. State, 183 Wis. 90,
197 N.W. 191, 192.
Land covered by spoil dirt from drainage channel is destroyed within constitutional provision that land destroyed
for drainage purposes shall be paid for at a price not to
exceed assessed value for preceding year. Scott v. Red
River-Bayou Pierre Levee & Drainage Dist. of Louisiana,
La.App., 7 So.2d 429, 433.
In relation to wills, contracts, and other documents, the term "destroy" does not import the annihilation of the instrument or its resolution into
other forms of matter, but a destruction of its
legal efficacy, which may be by cancellation, obliterating, tearing into fragments, etc. In re Kapp's
Estate, 317 Pa. 253, 176 A. 501, 502.
DESTRUCTION. A term used in old English law,
generally in connection with waste, and having,
DETAIL, v. To enumerate minutely, particularize. In re California Land Buyers Syndicate, D.C.
Cal., 22 F.Supp. 183, 186.
DETAIL, n. An individual part, an item, a particular. Board of Education of Prince George's
County v. County Com'rs of Prince George's
County, 131 Md. 658, 102 A. 1007, 1010.
One who belongs to the army, but is only detached, or set apart, for the time to some particular duty or service, and who is liable at any time
to be recalled to his place in the ranks. In re
Strawbridge, 39 Ala. 379.
DETAIN. To retain as the possession of personalty. First Nat. Bank v. Yocom, 96 Or. 438, 189
P. 220, 221. To arrest, to check, to delay, to hinder, to hold, or keep in custody, to retard, to re
strain from proceeding, to stay, to stop. People
v. Smith, 17 Cal.App.2d 468, 62 P.2d 436, 438.
DETAINER. The act (or the juridical fact) - of
withholding from a person lawfully entitled the
possession of land or goods, or the restraint of
a man's personal liberty against his will; detention.
The wrongful keeping of a person's goods is called an
"unlawful detainer" although the original taking may have
been lawful. As, if one distrains another's cattle, damage
feasant, and before they are impounded the owner tenders
sufficient amends; now, though the original taking was
lawful, the subsequent detention of them after tender of
amends is not lawful, and the owner has an action of replevin to recover them, in which he will recover damages
for the detention, and not for the caption, because the original taking was lawful. 3 Steph.Comm. 548.
In Practice
A writ or instrument, issued or made by a competent officer, authorizing the keeper of a prison
to keep in his custody a person therein named.
A detainer may be lodged against one within the
walls of a prison, on what account soever he is
there. Com.Dig. "Process," E, (3 B.) This writ
was superseded by 1 & 2 Vict. c. 110, §§ 1, 2.
Forcible Detainer
See that title.
DETAINMENT. This term is used in policies of
marine insurance, in the clause relating to "arrests, restraints, and detainments." The last two
535
DETECTION
words are construed as equivalents, each meaning
the effect of superior force operating directly on
the vessel. Schmidt v. Insurance Co., 1 Johns.,
N.Y., 262, 3 Am.Dec. 319.
superficial hurt or impairment removable by the
simple process of cleansing, cannot be said to be
"deterioration" within the ordinary meaning of
that term. Rosen-Reichardt Brokerage Co. v.
London Assur. Corporation, 214 Mo.App. 672, 264
S.W. 433, 436.
DETECTION. A discovery or laying open of that
which was hidden; investigation. Meunier v.
Bernich, La.App., 170 So. 567, 572.
Of values, a decline. Laxson v. Scarborough,
Tex.Civ.App., 221 S.W. 1029.
DETECTIVE. One whose business it is to watch,
and furnish information concerning, alleged
wrongdoers by investigating their haunts and
habits. One whose business it is to detect criminals or discover matters of secret and pernicious
import for the protection of the public. Smith v.
S. H. Kress & Co., 210 Ala. 436, 98 So. 378, 380.
DETERMINABLE. Liable to come to an end upon the happening of a certain contingency. 2 Bl.
Comm. 121.
Private Detective
Susceptible of being determined, found out,
definitely decided upon, or settled. Utah State
Nat. Bank v. Smith, 180 Cal. 1, 179 P. 160, 161.
As to determinable "Fee" and "Freehold," see
those titles.
One engaged by individuals for private protection. Smith v. S. H. Kress & Co., 210 Ala. 436, 98
So. 378, 380.
DETERMINATE. That which is ascertained;
what is particularly designated.
DETECTOR. Any device, or piece of apparatus,
which, when energized, actuated, or acted upon
by or by means of the so-called Hertzian waves, enable men, through the senses of hearing or sight,
to understand signals based upon the intentionally regulated emission or propagation of the waves
aforesaid. Marconi Wireless Telegraph Co. of
America v. De Forest Radio Telephone & Telegraph Co., C.C.A.N.Y., 243 F. 560, 561. In wireless telegraphy, the "detector" or "coherer" and
"wave responsive device" is a device by which
the electromagnetic waves cause the indicator to
respond. National Electric Signaling Co. v. Telefunken Wireless Telegraph Co. of United States,
C.C.A.N.Y., 221 F. 629, 631.
DETENTIO. In the civil law. That condition of
fact under which one can exercise his power over
a corporeal thing at his pleasure, to the exclusion of all others. It forms the substance of possession in all its varieties. Mackeld. Rom. Law, §
238.
DETENTION. The act of keeping back or withholding, either accidentally or by design, a person
or thing. State v. Crappel, 181 La. 715, 160 So.
309. See Detainer.
DETENTION IN A REFORMATORY, as a punishment or measure of prevention, is where a juvenile offender is sentenced to be sent to a reformatory school, to be there detained for a certain
period of time. 1 Russ. Crimes, 82.
DETER. To discourage or stop by fear, to stop
or prevent from acting or proceeding by danger,
difficulty, or other consideration which disheartens
or countervails the motive for the act. Haynesworth v. Hall Const. Co., 44 Ga.App. 807, 163 S.E.
273, 277.
DETERIORATION. Of a commodity, a constitutional hurt or impairment, involving some degeneration in the substance of the thing, such as that
arising from decay, corrosion, or disintegration.
The mere soiling of a commodity with sea water
or other foreign substance, resulting in a purely
As used in Good Time Law covering prisoners confined
for a determinate, the term, signifies a definite numberof years fixed by the court. Hinkle v. Dowd, Ind., 58 N.E.
2d 342, 343.
DETERMINATE OBLIGATION. See Obligation.
DETERMINATION. The decision of a court of
justice. It implies an ending or finality, the ending of a controversy or . suit. People v. Jackson,
181 N.Y.S. 226, 191 App.Div. 269. The ending or
expiration of an estate or interest in property, or
of a right, power, or authority. The coming to an
end in any way whatever. Hanchett Bond Co. v.
Glore, 208 Mo.App. 169, 232 S.W. 159, 160.
Also, an estimate. Unton v. Liverpool, London
& Globe Ins. Co., 166 Minn. 273, 207 N.W. 625, 626.
As respects an assessment, the term implies
judgment and decision after weighing the facts;
Appeal of Hoskins Mfg. Co., 270 Mich. 592, 259
N.W. 334, not mere arithmetical computation.
Hanlon v. Rollins, 286 Mass. 404, 190 N.E. 606, 608.
DETERMINATION OF WILL. A phrase used of
the putting an end to an estate at will. 2 Bl.
Comm. 146.
DETERMINE. To come to an end. To bring to
an end. 2 Bl.Comm. 121; 1 Washb. Real Prop.
380.
To bring to a conclusion, to settle by authorita.
tive sentence, to decide. Eastman Kodak Co. v.
Richards,, 123 Misc. 83, 204 N.Y.S. 246, 248. To
adjudicate on an issue presented. Glenn v. Mitchell, 71 Colo. 394, 207 P. 84, 85.
To estimate. Twin Falls Salmon River Land &
Water Co. v. Caldwell, C.C.A.Idaho, 242 F. 177, 184.
To decide, and analogous to "adopt" or "accept." Goldberger v. City of Perth Amboy, 16 N.
J.Misc. 8/4, 197 A. 267, 269.
DETESTATIO. Lat. In the civil law. A summoning made, or notice given, in the presence of
witnesses, (denuntiatio facts cum testatione.)
Dig. 50, 16, 40.
536
DEVASTAVIT
cial object. See Embezzlement. The Washington
D.C.N.Y., 19 F.Supp. 719, 722.
DETINET. Lat. He detains. In old English
law. A species of action of debt, which lay for the
specific recovery of goods, under a contract to deliver them. 1 Reeves, Eng. Law, 159.
DETRACTARI. To be torn in pieces by horses.
Fleta, 1. 1, c. 37.
In Pleading
An action of debt is said to be in the detinet
when it is alleged merely that the defendant withholds or unjustly detains from the plaintiff the
thing or amount demanded.
An action of replevin is said to be in the detinet when the defendant retains possession of
the property until after judgment in the action.
Bull, N.P. 52; Chit.Pl. 145.
DETRACTION. The removal of property from
one state to another upon a transfer of the title
to it by will or inheritance. Frederickson v. Louisiana, 23 How. 445, 16 L.Ed. 577.
DETRIMENT. Any loss or harm suffered in person or property; e. g., the consideration for a
contract may consist not only in a payment or
other thing of value given, but also in loss or
"detriment" suffered by the promisee. In that
connection, "detriment" means that the promisee
has, in return for the promise, forborne some legal
right which he otherwise would have been entitled
to exercise. Wallace v. Cook, 190 Ky. 262, 227
S.W. 279, 281; or that he has given up something
which he had a right to keep, or done something
which he had a right not to do. Irving v. Irwin,
133 Cal.App. 374, 24 P.2d 215.
DETINUE. In practice. A form of action which
lies for the recovery, in specie, of personal chattels from one who acquired possession of them
lawfully, but retains it without right, together
with damages for the detention. 3 Bl.Comm. 152.
Sinnott v. Feiock, 165 N.Y. 444, 59 N.E. 265, 53 L.
R.A. 565, 80 Am.St.Rep. 736.
The action of dettinue is defined in the old books as a
remedy founded upon the delivery of goods by the owner
to another to keep, who afterwards refuses to redeliver
them to the bailor; and it is said that, to authorize the
maintenance of the action, it is necessary that the defendant should have come lawfully into the possession of the
chattel, either by delivery to him or by finding it. In fact,
it was once understood to be the law that detinue does not
lie where the property had been tortiously taken. But it
is, upon principle, very unimportant in what manner the
defendant's possession commenced, since the gist of the
action is the wrongful detainer, and not the original taking.
It is only incumbent upon the plaintiff to prove property
in himself, and possession in the defendant. At present,
the action of detinue is proper in every case where the
owner prefers recovering the specific property to damages
for its conversion, and no regard is had to the manner in
which the defendant acquired the possession. Tiefel Bros.
& Winn v. Maxwell, Tex.Civ.App., 154 S.W. 319, 320.
DETUNICARI. To discover or lay open to the
world, Matt. Westm. 1240.
DEUNX, pl. DEUNCES. Lat. In the Roman law.
A division of the as, containing eleven uncice or
duodecimal parts; the proportion of eleventwelfths. 2 Bl.Comm. 462, note. See As.
Deus solus hmredem facere potest, non homo.
God alone, and not man, can make an heir. Co.
Litt. 7b; Broom, Max. 516; 5 B. & C. 440, 454.
DEUTEROGAMY. The act, or condition, of one
who marries after the death of a former wife or
husband.
DETINUE OF GOODS IN FRANK MARRIAGE.
A writ formerly available to a wife after a divorce, for the recovery of the goods given with
her in marriage. Mozley & Whitley.
DETINUIT. In pleading. An action of replevin
is said to be in the detinuit when the plaintiff acquires possession of the property claimed by
means of the writ. The right to retain is, of
course, subject in such case to the judgment of
the court upon his title to the property claimed.
Bull, N.P. 521.
DETOUR. A temporary turning aside from usual or regular route, course or procedure or from
a task or employment. Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga.App. 117, 185 S.E. 147,
148.
A temporary road or a longer road in temporary
use because of an obstruction on regularly used
road.
DETOURNEMENT. The misappropriation by a
servant of funds the property of his master;
fraudulent abstraction of documents; or "abus de
confiance" which is fraudulently misusing or
spending to anybody's prejudice goods, cash, bills,
documents, or contracts handed over for a spe-
DEVADIATUS, or DIVADIATUS. An offender
without sureties or pledges. Cowell.
DEVASTATION. Wasteful use of the property
of a deceased person, as for extravagant funeral
or other unnecessary expenses. 2 Bl.Comm. 508.
DEVASTAVERUNT. They have wasted. A term
applied in old English law to waste by executors
and administrators, and to the process issued
against them therefor. Cowell. See Devastavit.
DEVASTAVIT. Lat. He has wasted. The act
of an executor or administrator in wasting the
goods of the deceased; mismanagement of the
estate by which a loss occurs; Grigg v. Hanna,
283 Mich. 443, 478 N.W. 125; a breach of trust or
Misappropriation of assets held in a fiduciary character; any violation or neglect of duty by an
executor or administrator, involving loss to the
decedent's estate, which makes him personally
responsible to heirs, creditors, or legatees. McGlaughlin v. McGlaughlin, 43 W.Va. 226, 27 S.E.
378.
Also, if plaintiff, in an action against an executor or administrator, has obtained judgment, the usual execution
runs de bonis testatoris; but, if the sheriff returns such
a writ nulla bona testatoris nec propria, the plaintiff may,
forthwith, upon this return, sue out an execution against
537
DEVELOP
the property or person of the executor or administrator, in
as full a manner as in an action against him, sued in his
own right. Such a return is called a "devastavit." Brown.
DEVELOP. To progress to a more advanced
state or condition, as an injury. Rabin v. Central Business Men's Ass'n, 116 Kan. 280, 226 P. 764,
766, 38 A.L.R. 26. To bring, or attempt to bring,
to a state of fruition; to continue the work in
hand, as in operating under an oil and gas lease,
in a manner that would discover oil, if it existed,
and promote its production. Lacer v. Sumpter,
198 Ky. 752, 249 S.W. 1026, 1027. To unfold more
completely; to evolve the possibilities or power
of; to make active; to perfect; advance; further; to make; to increase; to promote the
growth of. Leingang v. Geller, Ward & Hasner
Hardware Co., 335 Mo. 549, 73 S.W.2d 256, 261.
Any unnecessary or unexcused departure from
the usual or general mode of carrying on the voy.
age insured. 15 Amer. Law Rev. 108; Shackman
v. Cunard White Star, D.C.N.Y., 31 F.Supp. 948,
951.
A voluntary departure without reasonable cause
from the course of the voyage insured, or an unreasonable delay in pursuing the voyage, or the
commencement of an entirely different voyage.
The Chester Valley, C.C.A.La., 110 F.2d 592, 594;
The Willdomino v. Citro Chemical Co. of America,
272 U.S. 718, 47 S.Ct. 261, 262, 71 L.Ed. 491.
In the Law of Master and Servant
A
A writ, now obsolete, directed
to the king's escheators when any of the king's
tenants in capite dies, and when his son and heir
dies within age and in the king's custody, com.
manding the escheators, that by the oaths of
twelve good and lawful men they shall inquire
what lands or tenements by the death of the tenant have come to the king. Dyer, 360; Termes
de la Ley; Keilw. 199a; Blount; Cowell.
departure on the part of a servant from his
master's service, for some purpose of his own.
Jeffries v. Jodawelky, 304 Mich. 421, 8 N.W.2d
121, 122. The liability of the master to third persons injured by the servant depends on the degree of deviation and all the attending circumstances. Johnson v. Maryland Cass Co., C.C.A.
Wis., 125 F.2d 337, 338. To exonerate the master,
the deviation must be so substantial as to amount
to an entire departure, and must be for purposes
entirely personal to the servant. Thomas v.
Lockwood Oil Co., 174 Wis. 486, 182 N.W. 841, 843.
Contra, it is held that the test is whether master
i mpliedly consented to route taken, and there
can be no such thing as a slight deviation. Kalinowski v. Odlewany, 289 Mich. 684, 287 N.W. 344,
345. As to a distinction between "deviation," "temporary abandonment," and "complete abandonment," see Dockweiler v. American Piano Co., 94
Misc. 712, 160 N.Y.S. 270, 273.
DEVEST.
DEVICE.
DEVELOPED WATER.
Such subterranean or
underground water as is discovered and brought
to the surface by the exploitation of man, and
which otherwise would run to waste. Rock Creek
Ditch & Flume Co. v. Miller, 17 P.2d 1074, 1077,
93 Mont. 248, 89 A.L.R. 200; Jones v. Warmsprings
Irr. Dist., 162 Or. 186, 91 P.2d 542.
DEVENERUNT.
To deprive; to take away; to withdraw. Usually spoken of an authority, power,
property, or title; as the estate is devested.
Devest is opposite to invest. As to invest signifies to deliver the possession of anything to another, so to devest signifies to take it away. Jacob •
It is sometimes written "divest" but "devest"
has the support of the best authority. Burrill.
DEVIATION.
In General
A change made in the progress of a work from
the original terms or design or method agreed
upon. Ward v. City of Monrovia, 16 Ca1.2d 815, 108
P.2d 425, 429.
A voluntary departure by railroad carrier, without necessity or reasonable cause, from the regi,
lar or usual route or from a stipulated or customary mode of carriage. Ward v. Gulf, M. & N.
R. Co., 23 Tenn.App. 533, 134 S.W.2d 917, 924.
In Insurance
Varying from the risks insured against, as described in the policy, without necessity or just
cause, after the risk has begun. 1 Phil.Ins. §
977, et seq.; 1 Arn.Ins. 415, et seq. Hostetter v.
Park, 137 U.S. 30, 11 Sup.Ct. 1, 34 L.Ed. 568.
An invention or contrivance; any result of design; as in the phrase "gambling device,"
which means a machine or contrivance of any
kind for the playing of an unlawful game of
chance or hazard. State v. Blackstone, 115 Mo.
424, 22 S.W. 370. Also, a plan or project; a
scheme to trick or deceive; a stratagem or artifice; as in the laws relating to fraud and cheating. State v. Smith, 82 Minn. 342, 85 N.W. 12.
Also an emblem, pictorial representation, or distinguishing mark or sign of any kind; as in the
laws prohibiting the marking of ballots used in
public elections with "any device." Baxter v. Ellis, 111 N.C. 124, 15 S.E. 938, 17 L.R.A. 382.
In a statute against gaming devices, this term is to be
understood as meaning something formed by design, a contrivance, an invention. It is to be distinguished from "substitute," which means something put in the place of another thing, or used instead of something else. Henderson v.
State, 59 Ala. 91.
In Patent Law
A plan or contrivance, or an application, adjustment, shaping, or combination of materials or
members, for the purpose of accomplishing a particular result or serving a particular use, chiefly
by mechanical means and usually simple in character or not highly complex, but involving the
exercise of the inventive faculty.
DEVIL ON THE NECK.
An instrument of torture, formerly used to extort confessions, etc. It
was made of several irons, which were fastened
538
DEVOLUTIVE
fee devised or conveyed to the first taker, when created by
will, is an "executory devise," and, when created by deed,
is a "conditional limitation," and in either event is given
effect as a shifting or springing use. McWilliams v. Havely, 214 Ky. 320, 283 S.W. 103, 104.
The estates known as a contingent remainder and an "executory devise" are both interests or estates in land to
take effect in the future and depend upon a future contingency; an "executory devise" being an interest which
the rules of law do not permit to be created in conveyances, but allow in case of wills. It follows a fee estate
created by a will. A contingent remainder may be created
by will or other conveyance and must follow a particular
or temporary estate created by the same instrument of
conveyance. Wilkins v. Rowan, 107 Neb. 180, 185 N.W. 437,
439. Lapsed devise. A devise which fails, or takes no effect, in consequence of the death of the devisee before the
testator; the subject-matter of it being considered as not
disposed of by the will. 1 Steph.Comm. 559; 4 Kent,
Comm. 541. Murphy v. McKeon, 53 N.J.Eq. 406, 32 A. 374.
Residuary devise. A devise of all the residue of the testator's real property, that is, all that remains over and above
the other devises.
to the neck and legs, and wrenched together so as
to break the back. Cowell.
DEVILLING. A term used in London of a barrister recently admitted to the bar, who assists a
junior barrister in his professional work, without
compensation and without appearing in any way
in the matter.
DEVISABLE. Capable of being devised. 1 Pow.
Dev. 165; 2 Bl.Comm. 373,
DEVISAVIT VEL NON. In practice. The name
of an issue sent out of a court of chancery, or one
which exercises chancery jurisdiction, to a court
of law, to try the validity of a paper asserted and
denied to be a will, to ascertain whether or not
the testator did devise, or whether or not that paper was his will. 7 Brown, Parl.Cas, 437; 2 Atk.
424; Asay v. Hoover, 5 Pa. 21, 45 Am.Dec. 713.
Synonyms
The term "devise" is properly restricted to real property; testamentary dispositions of personal property being
properly called "bequests" or "legacies." Borgner v.
Brown, 133 Ind. 391, 33 N.E. 92.
To contrive; plan; scheme; invent; prepare. Stockton
v. United States, C.C.A.I11., 205 F. 462, 464, 46 L.R.A.,N.S.,
936.
DEVISE. A testamentary disposition of land or
realty; a gift of real property by the last will and
testament of the donor. Scholle v. Scholle, 113
N.Y. 261, 21 N.E. 84; Murchison v. Wallace, 156
Va, 728, 159 S.E. 106, 108.
Classification
Devises are contingent or vested; that is, after the death
of the testator. Contingent, when the vesting of any
estate in the devisee is made to depend upon some future
event, in which case, if the event never occur, or until it
does occur, no estate vests under the devise. But, when
the future event is referred to merely to determine the
ti me at which the devisee shall come into the use of the
estate, this does not hinder the vesting of the estate at the
death of the testator. 1 Jarm.Wills, c. 26. Devises are
also classed as general or specific. A general devise is one
which passes lands of the testator without a particular
enumeration or description of them; as, a devise of "all
my lands" or "all my other lands." In a more restricted
sense, a general devise is one which grants a parcel of land
without the addition of any words to show how great an
estate is meant to be given, or without words indicating
either a grant in perpetuity or a grant for a limited term;
in this case it is construed as granting a life estate. Hitch
v. Patten, 8 Houst. (Del.) 334, 16 A. 558, 2 L.R.A. 724.
Specific devises are devises of lands particularly specified in
the terms of the devise, as opposed to general and residuary devises of land, in which the local or other particular
descriptions are not expressed. For example, "I devise my
Hendon Hall estate" is a specific devise; but "I devise all
my lands," or, "all other my lands," is a general devise or
a residuary devise. But all devises are (in effect) specific,
even residuary devises being so. L.R. 3 Ch. 420; Id. 136.
At common law, all devises of land were deemed to be
"specific" whether the land was identified in the devise or
passed under the residuary clause. In re Sutton's Estate,
11 Del.Ch. 460, 97 A. 624, 626. A conditional devise is one
which depends upon the occurrence of some uncertain
event, by which it is either to take effect or be defeated.
'An executory devise of lands is such a disposition of them
by will that thereby no estate vests at the death of the
devisor, but only on some future contingency. It differs
from a remainder in three very material points ; (1) That
it needs not any particular estate to support it; (2) that
by it a fee-simple or other less estate may be limited after
a fee-simple; (3) that by this means a remainder may be
li mited of a chattel interest, after a particular estate for
life created in the same. 2 Bl.Comm. 172. In a stricter
sense, a limitation by will of a future contingent interest in
lands, contrary to the rules of the common law. 4 Kent,
Comm. 263; 1 Steph.Comm. 564; Dean v. Crews, 77 Fla.
319, 81 So. 479. A limitation by will of a future estate or
interest in land, which cannot, consistently with the rules
of law, take effect as a remainder. 2 Pow.Dev. (by Jarman,) 237; Bean v. Atkins, 87 Vt. 376, 89 A. 643, 646. See
Poor v. Considine, 6 Wall. 474, 18 L.Ed. 869; Glover v.
Condell, 163 Ill. 566, 45 N.E. 173, 35 L.R.A. 360. A future
interest taking effect as a fee in derogation of a defeasible
DEVISEE. The person to whom lands or other
real property are devised or given by will. 1 Pow.
Dev. c. 7. In re Lewis' Estate, 39 Nev, 445, 159
P. 961, 962, 4 A.L.R. 241.
Residuary Devisee
The person named in a will, who is to take all
the real property remaining over and above the
other devises.
DEVISOR. A giver of lands or real estate by
will; the maker of a will of lands; a testator.
DEVOIR. Fr. Duty. It is used in the statute of
2 Rich. II. c. 3, in the sense of duties or customs.
DEVOLUTION. The transfer or transition from
one person to another of a right, liability, title,
estate, or office. Francisco v. Aguirre, 94 Cal. 180,
29 P. 495.
In Ecclesiastical Law
The forfeiture of a right or power (as the right
of presentation to a living) in consequence of its
non-user by the person holding it, or of some other
act or omission on his part, and its resulting
transfer to the person next entitled.
In Scotch Law
The transference of the right of purchase, from
the highest bidder at an auction sale, to the next
highest, when the former fails to pay his bid or
furnish security for its payment within the time
appointed. Also, the reference of a matter in controversy to a third person (called "oversman") by
two arbitrators to whom it has been submitted
and who are unable to agree.
DEVOLUTIVE APPEAL. In the law of Louisiana, one which does not suspend the execution of
539
DEVOLVE
the judgment appealed from. Brock v. Police
Jury of Rapides Parish, 198 La. 787, 4 So.2d 829,
832.
DEVOLVE. To pass or be transferred from one
person to another; to fall on, or accrue to, one
person as the successor of another; as a title,
right, office, liability. The term is said to be peculiarly appropriate to the passing of an estate
from a person dying to a person living. Babcock
v. Maxwell, 29 Mont. 31, 74 P. 64; Fitzpatrick v.
McAlister, 121 Okl. 83, 248 P. 569, 573; People ex
rel. Robin v. Hayes, 149 N.Y.S. 250, 252, 163 App.
Div. 725. See Devolution.
DEVULCANIZE. Of rubber. A more or less
perfect restoration of vulcanized rubber to a state
in which it might be used as crude rubber. Philadelphia Rubber Works Co. v. Portage Rubber
Co., D.C.Ohio, 227 F. 623, 627.
DEVY. L. Fr. Dies; deceases. Bendloe, 5.
DEXTANS. Lat. In Roman law. A division of
the as, consisting of ten uncice; ten-twelfths, or
five-sixths. 2 Bl.Comm. 462, note m.
DEXTRARIUS. One at the right hand of another.
DEXTRAS DARE. To shake hands in token of
friendship; or to give up oneself to the power of
another person.
DI COLONNA. In maritime law. The contract
which takes place between the owner of a ship, the
captain, and the mariners, who agree that the voyage shall be for the benefit of all. The term is
used in the Italian law. Emerig. Mar. Loans, § 5.
DI. ET FI. L.Lat. In old writs. An abbreviation of dilecto et fideli, (to his beloved and faithful.)
DIACONATE. The office of a deacon.
DIACONUS. A deacon.
DIAGNOSIS. A medical term, meaning the discovery of the source of a patient's illness or the
determination of the nature of his disease from
a study of its symptoms. Said to be little more
than a guess enlightened by experience. Swan v.
Railroad Co., 29 N.Y.S. 337, 79 Hun 612; People
v. Jordan, 172 Cal. 391, 156 P. 451, 454.
The art or act of recognizing the presence of
disease from its symptoms, and deciding as to its
character, also the decision reached, for determination of type or condition through case or
specimen study or conclusion arrived at through
critical perception or scrutiny. A "clinical diagnosis" is one made from a study of the symptoms
only, and a "physical diagnosis" is one made by
means of physical measure, such as palpation
and inspection. Williams v. Elias, 140 Neb. 656,
1 N.W.2d 121, 123.
DIAGONAL, n. A right line drawn from the one
angle to another not adjacent of a figure of four
or more sides and dividing it into two parts. Semerad v. Dunn County, 35 N.D. 437, 160 N.W. 855,
858.
DIAGONAL, adj. Joining two not adjacent angles of a quadrilateral or multilateral figure running across from corner to corner; crossing at an
angle with one of the sides. Semerad v. Dunn.
County, 35 N.D. 437, 160 N.W. 855, 858.
DIALECTICS. That branch of logic which teaches the rules and modes of reasoning.
DIALLAGE. A rhetorical figure in which arguments are placed in various points of view, and
then turned to one point. Enc.Lond.
DIALOGUS DE SCACCARIO. Dialogue of or
about the exchequer. An ancient treatise on
the court of exchequer, attributed by some to Gervase of Tilbury, by others to Richard Fitz Nigel,
bishop of London in the reign of Richard I. It
is quoted by Lord Coke under the name of Ockham. Crabb, Eng. Law, 71.
DIANATIC. A logical reasoning in a progressive manner, proceeding from one subject to another. Enc. Lond.
DIARIUM. Daily food, or as much as will suffice for the day. Du Cange.
DIATHERMY. Heat treatment by electricity.
Biener v. St. Louis Public Service Co., Mo.App.,
160 S.W.2d 780, 788.
DIATIM. In old records. Daily; every day;
from day to day. Spelman.
DICA. In old English law. A tally for accounts,
by number of cuts, (taillees,) marks, or notches.
Cowell. See Tallia; Tally.
DICAST. An officer in ancient Greece answering
in some respects to our juryman, but combining,
on trials had before them, the functions of both
judge and jury. The dicasts sat together in numbers varying, according to the importance of the
case, from one to five hundred.
DICE. Small cubes of bone or ivory, marked with
figures or devices on their several sides, used in
playing certain games of chance. See Wetmore
v. State, 55 Ala. 198.
DICTA. Opinions of a judge which do not embody the resolution or determination of the court.
Deer Island Fish & Oyster Co. v. First Nat. Bank,
166 Miss. 162, 146 So. 116, 119. See Dictum.
DICTATE. To order or instruct what is to be
said or written. To pronounce, word by word,
what is meant to be written by another. Hamilton v. Hamilton, 6 Mart., N.S., La., 143. See Dictation.
DICTATION. In Louisiana, this term is used in
a technical sense, and means to pronounce orally
what is destined to be written at the same time
by another. It is used in reference to nuncupative
wills. Prendergast v. Prendergast, 16 La.Ann.
220, 79 Am.Dec. 575. The dictation of a will refers to the substance, and not the style, and it is
sufficient if the will, as written, conveys the identity of thought expressed by the testator, though
540
DIES
In French Law
not the identity of words used by him. Succession of Beattie, 163 La. 831, 112 So. 802, 803.
The report of a judgment made by one of the
judges who has given it. Poth.Proc.Civil, pt. 1, c.
5, art. 2.
DICTATOR. A magistrate invested with unlimited power, and created in times of national distress
and peril. Among the Romans, he continued in
office for six months only, and had unlimited power and authority over both the property and lives
of the citizens.
One in whom supreme authority in any line is
invested, one who rules as dictator, and one who
prescribes for others authoritatively. Houston
Printing Co. v. Hunter, Tex.Civ.App., 105 S.W.2d
312, 317.
DICTUM DE KENILWORTH. The edict or declaration of Kenilworth. An edict or award between King Henry III. and all the barons and
others who had been in arms against him; and
so called because it was made at Kenilworth Castle in Warwickshire, in the fifty-first year of his
reign, containing a composition of five years' rent
for the lands and estates of those who had forfeited them in that rebellion. Blount; 2 Reeve,
Eng.Law, 62.
DICTATORSHIP OF PROLETARIAT. The class
power of the revolutionary proletariat (unskilled
laborers without property) arising upon destruction of the state. People v. Gitlow, 234 N.Y. 132,
136 N.E. 317, 322.
DIE, v. To expire; cease to live; the equivalent
to the phrase "lose his life." Hershey v. Agnew,
83 Colo. 89, 262 P. 526, 528.
DIE, n. A mold. Cole v. United States, C.C.A.
Colo., 269 F. 250, 251.
DICTORES. Arbitrators.
DIE WITHOUT ISSUE. See Dying Without Issue.
DIEI DICTIO. Lat. In Roman law. This name
was given to a notice promulgated by a magistrate
of his intention to present an impeachment against
a citizen before the people, specifying the day
appointed, the name of the accused, and the crime
charged.
DICTUM.
In General
A statement, remark, or observation. Gratis
dictum; a gratuitous or voluntary representation;
one which a party is not bound to make. 2 Kent,
Comm. 486. Simplex dictum; a mere assertion;
an assertion without proof. Bract. fol. 320.
The word is generally used as an abbreviated
form of obiter dictum, "a remark by the way;"
that is, an observation or remark made by a judge
in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law,
or the solution of a question suggested by the
case at bar, but not necessarily involved in the
case or essential to its determination; any statement of the law enunciated by the court merely
by way of illustration, argument, analogy, or suggestion. See Railroad Co. v. Schutte, 103 U.S.
118, 143, 26 L.Ed. 327; City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272, 119 A.L.R.
914; Deer Island Fish & Oyster Co. v. First Nat.
Bank, 166 Miss. 162, 146 So. 116, 119.
Statements and comments in an opinion concerning some rule of law or legal proposition not
necessarily involved nor essential to determination
of the case in hand are obiter dicta, and lack the
force of an adjudication. Wheeler v. Wilkin, 98
Colo. 568; 58 P.2d 1223, 1226; Roquemore v. Sovereign Camp, W.O.W., 226 Ala. 279, 146 So. 619,
622.
Dicta are opinions of a judge which do not embody the
resolution or determination of the court, and made without
argument, or full consideration of the point, are not the
professed deliberate determinations of the judge himself.
Obiter dicta are such opinions uttered by the way, not
upon the point or question pending, as if turning aside for
the time from the main topic of the case to collateral subjects. Rohrbach v. Insurance Co., 62 N.Y. 47, 58, 20 Am.
Rep. 451.
In Old English Law
Dictum meant an arbitrament, or the award of
arbitrators.
DIEM CLAUSIT EXTREMUM. (Lat. He has
closed his last day,—died.) A writ which formerly
lay on the death of a tenant in capite, to ascertain the lands of which he died seised, and reclaim them into the king's hands. It was directed to the king's escheators. Fitzh.Nat.Brev. 251,
K; 2 Reeve, Eng.Law, 327.
A writ awarded out of the exchequer after the
death of a crown debtor, the sheriff being commanded by it to inquire by a jury when and where
the crown debtor died, and what chattels, debts,
and lands he had at the time of his decease, and
to take and seize them into the crown's hands. 4
Steph.Comm. 47, 48.
DIES. Lat. A day; days. Days for appearance
in court. Provisions or maintenance for a day.
The king's rents were anciently reserved by so
many days' provisions. Spelman; Cowell; Blount.
DIES A QUO. (The day from which.) In the
civil law. The day from which a transaction begins; the commencement of it; the conclusion being the dies ad quem. Mackeld.Rom.Law, § 185.
DIES AMORIS. A day of favor. The name given
to the appearance day of the term on the fourth
day, or quarto die post. It was the day given by
the favor and indulgence of the court to the defendant for his appearance, when all parties appeared in court, and had their appearance recorded by the proper officer. Wharton.
DIES CEDIT. The day begins; dies venit, the
day has come. Two expressions in Roman law
which signify the vesting or fixing of an interest,
and the interest becoming a present one. Sandars' Just.Inst. (5th Ed.) 225, 232.
541
DIES
DIES COMMUNES IN BANCO. Regular days for • nually held on the marches or borders to adjust
appearance in court; called, also "common retheir differences and preserve peace.
turn-days." 2 Reeve, Eng.Law, 57.
DIES NEFASTI. In Roman law. Days on which
DIES DATUS. A day given or allowed, (to a dethe courts were closed, and it was unlawful to
fendant in an action; ) amounting to a continuadminister justice; answering to the dies non
juridici of the English law. Mackeld.Rom.Law, §
ance. But the name was appropriate only to a
39, note.
continuance before a declaration filed; if afterwards allowed, it was called an "imparlance."
DIES NON. An abbreviation of Dies non juridicus, (q. v.).
DIES DATUS IN BANCO. A day given in the
bench, (or court of common pleas.) Bract. fols.
DIES NON JURIDICUS. In practice. A day not
257b, 361. A day given in bank, as distinguished
juridical; not a court day. A day on which courts
Co.Litt.
135.
from a day at nisi prius.
are not open for business, such as Sundays and
DIES DATUS PARTIBUS. A day given to the
some holidays. Havens v. Stiles, 8 Idaho, 250, 67
parties to an action; an adjournment or continuP. 921, 56 L.R.A. 736, 101 Am.St.Rep. 195.
ance. Crabb, Eng.Law, 217.
DIES PACIS. (Days of peace.) The year was
formerly divided into the days of the peace of the
DIES DATUS PRECE PARTIUM. A day given on
the prayer of the parties. Bract. fol. 358; Gilb.
church and the days of the peace of the king, including in the two divisions all the days of the
Comm.Pl. 41; 2 Reeve, Eng.Law, 60.
year. Crabb, Eng.Law, 35.
DIES DOMINICUS. The Lord's day; Sunday.
DIES SOLARIS. In old English law. A solar
Dies dominicus non est juridicus. Sunday is not
day, as distinguished from what was called "dies
a court day, or day for judicial proceedings, or
lunaris," (a lunar day;) both composing an artilegal purposes. Co.Litt. 135a; Noy, Max. 2; Wing.
ficial day. Bract. fol. 264. See Day.
Max. 7, max. 5; Broom, Max. 21.
DIES SOLIS. In the civil and old English law.
DIES EXCRESCENS. In old English law. The
Sunday, (literally, the day of the sun.) See Cod.
added or increasing day in leap year. Bract. fols.
3, 12, 7.
359, 359b.
DIES UTILES. Juridical days; useful or availDIES FASTI. In Roman law. Days on which
able days. A term of the Roman law, used to desthe courts were open, and justice could be legally
ignate those especial days occurring within the
administered; days on which it was lawful for
limits of a prescribed period of time upon which it
the prEetor to pronounce (tali) the three words,
was lawful, or possible, to do a specific act.
"do," "dico," "addico." Mackeld.Rom.Law, § 39,
DIET. A general legislative assembly is someand note; 3 Bl.Comm. 424, note; Calvin. Hence
times so called on the continent of Europe.
called "triverbial days," answering to the dies juridici of the English law.
In Scotch Practice
DIES FERIATL In the civil law. Holidays. Dig.
The sitting of a court. An appearance day. A.
2, 12, 2, 9.
day fixed for the trial of a criminal cause. A crimDIES GRATIIE. In old English practice. A day
inal cause as prepared for trial.
of grace, courtesy, or favor. Co.Litt. 134b. The
DIETA. A day's journey; a day's work; a day's
quarto die post was sometimes so called. Id. 135a.
expenses.
Dies inceptus pro completo habetur. A day beDIETS OF COMPEARANCE. In Scotch law. The
gun is held as complete.
days within which parties in civil and criminal
Dies incertus pro conditione habetur. An uncerprosecutions are cited to appear. Bell.
tain day is held as a condition.
DIEU ET MON DROIT. Fr. God and my right.
The motto of the royal arms of England, first asDIES INTERCISI. In Roman law. Divided days;
sumed by Richard I.
days on which the courts were open for a part of
the day. Calvin.
DIEU SON ACTE. L. Fr. In old law. God his
act; God's act. An event beyond human foresight
DIES JURIDICUS. A lawful day for the transacor control. Termes de la Ley.
tion of judicial or court business; a day on which
the courts are or may be open for the transaction
DIFFACERE. To destroy; to disfigure or deface.
of business. Didsbury v. Van Tassell, 56 Hun, 423,
10 N.Y.Supp. 32.
DIES LEGITIMUS. In the civil and old English
law. A lawful or law day; a term day; a day of
appearance.
DIES MARCIII1E. In old English law. The day
of meeting of English and Scotch, which was an-
DIFFERENCE. In an agreement for submission
to arbitration, a disagreement or dispute. Fravert
v. Fesler, 11 Colo.App. 387, 53 Pac. 288; Pioneer
Mfg. Co. v. Phoenix Assur. Co., 106 N.C. 28, 10 S.E.
1057.
As respects contract specifications or material
described therein, a state of being unlike. Mc-
542
DILAPIDATION
ering the Federal Reporter, Federal Supplement
and the Supreme Court Reporter.
Garry Contracting Co. v. Board of Education of
City of New York, 284 N.Y. 218, 30 N.E.2d 482.
In mathematics, the magnitude or quantity by
which one magnitude or quantity differs from another of the same kind; the remainder left after
subtracting the one from the other. Riley Stoker
Corporation v. Jeffrey Mfg. Co., 62 Ohio App. 199,
23 N.E.2d 519, 522.
DIGESTA. Digests. One of the titles of the Pandects of Justinian. Inst. Prcem, § 4. Bracton
uses the singular, "Digestum." Bract. fol. 19.
DIGESTS. The ordinary name of the Pandects of
Justinian, which are now usually cited by the abbreviation "Dig." instead of "Ff.," as formerly.
Sometimes called "Digest," in the singular.
Difficile est ut unus homo vicem duorum sustineat. 4 Coke, 118. It is difficult that one man
should sustain the place of two.
DIGGING. Has been held as synonymous with
"excavating," and not confined to the removal of
earth. Sherman v. New York, 1 N.Y. 316.
DIFFICULT. For the meaning of the phrase
"difficult and extraordinary case," as used in New
York statutes and, practice, see Standard Trust
Co. v. New York, etc., R. Co., 178 N.Y. 407, 70 N.E.
925; Realty Associates v. Packard Motor Car Co.
of New York, 119 Misc. 292, 196 N.Y.S. 198, 200;
Cohen v. Texas Co., D.C.N.Y., 23 F.2d 128, 129.
DIFFORCIARE. In old English law. To deny,
or keep from one. Difforciare rectum, to deny
justice to any one, after having been required to
do it.
DIGNITARY. In canon law. A person holding an
ecclesiastical benefice or dignity, which gave him
some pre-eminence above mere priests and canons.
To this class exclusively belonged all bishops,
deans, archdeacons, etc.; but it now includes all
the prebendaries and canons of the church.
Brande.
DIFFUSE. To spread widely; scatter; disperse.
Ex parte Hinkelman, 183 Cal. 392, 191 P. 682, 683,
11 A.L.R. 1222.
DIGNITY. In English law. An honor; a title,
station, or distinction of honor. Dignities are a
species of incorporeal hereditaments, in which a
person may have a property or estate. 2 Bl.Comm.
37; 1 Bl.Comm. 396; 1 Crabb, Real Prop. 468, et
seq.
DIGAMA, or
DIJUDICATION.
DIGAMY. Second marriage; marriage to a second wife after the death of the first,
as "bigamy," in law, is having two wives at once.
Originally, a man who married a widow, or . married again after the death of his wife, was said
to be guilty of bigamy. Co.Litt. 40b, note.
DIGEST. A collection or compilation, embodying
the chief matter of numerous books in one, disposed under proper heads or titles, and usually by
an alphabetical arrangement, for facility in reference.
As a legal term, "digest" is to be distinguished from
"abridgment." The latter is a summary or epitome of the
contents of a single work, in which, as a rule, the original
order or sequence of parts is preserved, and in which the
principal labor of the compiler is in the matter of consolidation. A digest is wider in its scope ; is made up of
quotations or paraphrased passages ; and has its own system of classification and arrangement. An "index" merely points out the places where particular matters may be
found, without purporting to give such matters in extenso.
A "treatise" or "commentary" is not a compilation, but an
original composition, though it may include quotations and
excerpts.
A reference to the "Digest," or "Dig.," is always
understood to designate the Digest (or Pandects)
of the Justinian collection; that being the digest
par eminence, and the authoritative compilation
of the Roman law.
The American Digest System embraces the Century, First, Second, Third, Fourth Decennials, and
General Digest. It covers the decisions of all
American courts of last resort, State and Federal,
from 1658 to date, under one uniform classification. The First Decennial, Second Decennial,
Third Decennial, Fourth Decennial and General
Digest, are Key-Numbered. There are also the
United States Supreme Court Digest, covering all
cases in that court, and the Federal Digest, cov-
tion.
Judicial decision or determina-
DIKE.
A bank, as of earth, thrown up to form a
barrier, line of demarcation, or the like; especially
an embankment to prevent inundation. Parker v.
Department of Labor and Industries, 14 Wash.2d
481, 128 P.2d 497, 500.
DIKING. Leveling land in arid regions, particularly sagebrush land. An essential operation in
the conversion of such land into farms or orchards. Craig v. Crystal Realty Co., 89 Or. 25, 173
P. 322, 325.
DILACION.
In Spanish law. A space of time
granted to a party to a suit in which to answer a
demand or produce evidence of a disputed fact.
DILAPIDATION. A species of ecclesiastical
waste which occurs whenever the incumbent suffers any edifices of his ecclesiastical living to go to
ruin or decay. It is either voluntary, by pulling
down, or permissive, by suffering the church,
parsonage-houses, and other buildings thereunto
belonging, to decay. And the remedy for either
lies either in the spiritual court, where the canon
law prevails, or in the courts of common law. It
is also held to be good cause of deprivation if the
bishop, parson, or other ecclesiastical person dilapidates buildings or cuts down timber growing on
the patrimony of the church, unless for necessary
repairs; and that a writ of prohibition will also
lie against him in the common-law courts. 3 Bl.
Comm. 91.
The term is also used, in the law of landlord and
tenant, to signify the neglect of necessary repairs to a building, or suffering it to fall into a
543
DILAPIDATION
Ordinary negligence is the want of ordinary diligence;
slight, or less than ordinary, negligence is the want of
great diligence; and gross or more than ordinary negligence is the want of slight diligence. Railroad Co. v. Rollins, 5 Kan. 180.
state of decay, or the pulling down of the building
or any part of it. Wall Estate Co. v. Standard
Box Co., 20 Cal.App. 311, 128 P. 1020, 1021.
Dilationes in lege sunt odiosce. Delays in law
are odious. Branch, Princ.
In Scotch Law and Practice
Process of law, by which persons, lands, or effects are seized in execution or in security for
debt. Ersk. Inst. 2, 11, 1. Brande. Process for
enforcing the attendance of witnesses, or the production of writings. Ersk. Inst. 4, 1, 71.
DILATORY. Tending or intended to cause delay
or to gain time or to put off a decision.
DILATORY DEFENSE. In chancery practice.
One the object of which is to dismiss, suspend,
or obstruct the suit, without touching the merits,
until the impediment or obstacle insisted on shall
be removed. 3 Bl.Comm. 301, 302.
Other Classifications and Compound Terms
—Due diligence. Such a measure of prudence, activity, or assiduity, as is properly to be expected
from, and ordinarily exercised by, a reasonable
and prudent man under the particular circumstances; not measured by any absolute standard,
but depending on the relative facts of the special
case. Perry v. Cedar Falls, 87 Iowa, 315, 54 N.W.
225.
DILATORY EXCEPTIONS are such as do not
tend to defeat the action, but only to retard its
progress.
DILATORY PLEAS. A class of defenses at common law, founded on some matter of fact not connected with the merits of the case, but such as
might exist without impeaching the right of action
itself. They were either pleas to the jurisdiction,
showing that, by reason of some matter therein
stated, the case was not within the jurisdiction
of the court; or pleas in suspension, showing some
matter of temporary incapacity to proceed with
the suit; or pleas in abatement, showing some
matter for abatement or quashing the declaration.
3 Steph.Comm. 576. Parks v. McClellan, 44 N.J.
Law, 513, 558; Shaw v. Southern Ry. Co., 17 Ga.
App. 78, 86 S.E. 95.
—Extraordinary diligence. That extreme measure of care and caution which persons of unusual
prudence and circumspection use for securing and
preserving their own property or rights. Railroad Co. v. Huggins, 89 Ga. 494, 15 S.E. 848; Railroad Co. v. White, 88 Ga. 805, 15 S.E. 802.
DILIGENCE. Prudence; vigilant activity; attentiveness; or care, of which there are infinite
shades, from the slightest momentary thought to
the most vigilant anxiety. People v. Hewitt, 78
Cal.App. 426, 248 P. 1021, 1024. The law recognizes only three degrees of diligence: (1) Common or ordinary, which men, in general, exert
in respect of their own concerns; the standard is
necessarily variable with respect to the facts, although it may be uniform with respect to the
principle. (2) High or great, which is extraordinary diligence, or that which very prudent persons take of their own concerns. (3) Low or
slight, which is that which persons of less than
common prudence, or indeed of no prudence at
all, take of their own concerns. Brown & Flowers
v. Central of Georgia Ry. Co., 197 Ala. 71, 72 So.
366, 367.
The civil law is in perfect conformity with the
common law. It lays down three degrees of diliextraordinary,
(diligentia;)
gence,—ordinary,
(exactissima diligentia;) slight, (levissima diligentia.) Story, Bailm. 19.
There may be a high degree of diligence, a common degree of diligence, and a slight degree of diligence, with
their corresponding degrees of negligence, and these can
be clearly enough defined for all practical purposes, and,
with a view to the business of life, seem to be all that are
really necessary. Common or ordinary diligence is that
degree of diligence which men in general exercise in respect to their own concerns ; high or great diligence is of
course extraordinary diligence, or that which very prudent
persons take of their own concerns; and low or slight diligence is that which persons of less than common prudence,
or indeed of any prudence at all, take of their own concerns.
—Great diligence. Such a measure of care, prudence, and assiduity as persons of unusual prudence and discretion exercise in regard to any and
all of their own affairs, or such as persons of ordinary prudence exercise in regard to very important affairs of their own. Litchfield v. White,
7 N.Y. 438, 57 Am.Dec. 534.
— High diligence. The same as great diligence.
—Low diligence. The same as slight diligence.
—Necessary diligence. That degree of diligence
which a person placed in a particular situation
must exercise in order to entitle him to the pro-.
tection of the law in respect to rights or claims
growing out of that situation, or to avoid being
left without redress on account of his own culpable carelessness or negligence. Garahy v. Bayley, 25 Tex.Supp. 302; Sanderson v. Brown, 57
Me. 312.
—Ordinary diligence is that degree of care which
men of common prudence generally exercise in
their affairs, in the country and the age in which
they live. Zell v. Dunkle, 156 Pa. 353, 27 A. 38.
— Reasonable diligence. A fair, proper and due
degree of care and activity, measured with reference to the particular circumstances; such diligence, care, or attention as might be expected
from a man of ordinary prudence and activity.
Ford v. Engleman, 118 Va. 89, 86 S.E. 852, 855.
— Special diligence. The measure of diligence
and skill exercised by a good business man in his
particular specialty, which must be commensurate
with the duty to be performed and the individual
circumstances of the case; not merely the dili-
544
DIPLOMACY
gence of an ordinary person or non-specialist.
Brady v. Jefferson, 5 Houst. (Del.) 79.
In Spanish Law
Money. Dinero contado, money counted.
White, New Recop. b. 2, tit. 13, c. 1, § 1.
DILIGENT. Attentive and persistent in doing a
thing; steadily applied; active; sedulous; laborious; unremitting; untiring. People v. Mancuso,
255 N.Y. 463, 175 N.E. 177, 179, 76 A.L.R. 514.
DIOCESAN. Belonging to a diocese; a bishop, as
he stands related to his own clergy or flock.
DILIGIATUS. (Fr. De lege ejectus, Lat.) Outlawed.
DILLIGROUT. In old English law. Pottage formerly made for the king's table on the coronation
day. There was a tenure in serjeantry, by which
lands were held of the king by the service of finding this pottage at that solemnity.
DIME. A silver coin of the United States, of the
value of ten cents, or one-tenth of the dollar.
DIOCESAN COURTS. In English law. The consistorial courts of each diocese, exercising general
jurisdiction of all matters arising locally within
their respective limits, with the exception of places
subject to peculiar jurisdiction; deciding all matters of spiritual discipline,—suspending or depriving clergymen,--and administering the other
branches of the ecclesiastical law. 2 Steph.Com.
672.
DIOCESAN MISSION. A mission which does
missionary work in single diocese. Domestic &
Foreign Missionary Soc. v. Crippled Children's
Hospital, 163 Va. 114, 176 S.E. 193.
DIMIDIA, DIMIDIUM, DIMIDIUS. Half; a half;
the half.
DIMIDIETAS. The moiety or half of a thing.
DIMINISHED RESPONSIBILITY DOCTRINE.
A misnomer for doctrine under which proof of
mental derangement short of insanity is submitted
as evidence of lack of deliberate or premeditated
design. State v. Franco, 347 P.2d 312, 314, 66 N.M.
289, 78 A.L.R.2d 908.
DIOCESE. The territorial extent of a bishop's jurisdiction. The circuit of every bishop's jurisdiction. Co. Litt. 94; 1 Bl.Comm. 111.
DIMINUTIO. In the civil law. Diminution; a
taking away; loss or deprivation. Diminutio capitis, loss of status or condition. See Capitis Diminutio.
DIP, v. To immerse for a short time in any liquid; to place in fluid and withdraw again; the act
of dipping or immersing; a plunge; a brief bath,
as the dip of the oars; a dip in the sea. Standard
Dictionary, "dip." Covington County v. Pickering, 123 Miss. 20, 85 So. 114, 115.
DIMINUTION. Incompleteness. A word signifying that the record sent up from an inferior to a
superior court for review is incomplete, or not
fully certified. In such case the party may suggest a "diminution of the record," which may be
rectified by a certiorari. 2 Tidd, Pr. 1109; Stepp
v. Stepp, 195 Ga. 595, 25 S.E.2d 6, 8.
DIMISI. In old conveyancing. I have demised.
Dimisi, concessi, et ad firmam tradidi, have demised, granted, and to farm let. The usual words
of operation in a lease. 2 Bl.Comm. 317, 318.
DIMISIT. In old conveyancing. [He] has de
mised. See Dimisi.
DIMISSORL1E LITTER/E. In the civil law. Letters dimissory or dismissory, commonly called
"apostles," (quce vulgo apostoli dicuntur.) Dig. 50,
16, 106. See Apostoli, Apostles.
DIMISSORY LETTERS. Where a candidate for
holy orders has a title of ordination in one diocese in England, and is to be ordained in another,
the bishop of the former diocese gives letters dimissory to the bishop of the latter to enable him
to ordain the candidate. Holthouse.
DENTARCHY. A government of two persons.
DINERO.
In Roman Law
A civil division of the Roman empire embracing
several provinces. Calvin.
Black's Law Dictionary Revised 4th
ta.-35
DIOICHIA. The district over which a bishop exercised his spiritual functions.
DIP, n. In mining law. The line of declination
of strata; the angle which measures the deviation
of a mineralized vein or lode from the vertical
plane; the slope or slant of a vein, away from the
perpendicular, as it goes downward into the earth;
distinguished from the "strike" of the vein, which
is its extension in the horizontal plane, or its
lengthwise trend or course with reference to the
points of the compass. King v. Mining Co., 9
Mont. 543, 24 P. 200.
In Animal Husbandry
A liquid preparation into which infected animals
may be plunged for eradication of fever ticks, or
other sanitary or medical purposes. Ungles-Hoggette Mfg. Co. v. Farmers' Hog & Cattle Powder
Co., C.C.A.Neb., 232 F. 116, 117.
DIPLOMA. In the civil law. A royal charter;
letters patent granted by a prince or sovereign.
Calvin.
An instrument given by colleges and societies on
the conferring of any degrees. State v. Gregory,
83 Mo. 130, 53 Am.Rep. 565.
A license granted to a physician, etc., to practice his art or profession. See Brooks v. State, 88
Ala. 122, 6 So. 902.
DIPLOMACY. The science which treats of the
relations and interests of nations with nations.
545
DIPLOMACY
Negotiation or intercourse between nations
through their representatives. The rules, customs, and privileges of representatives at foreign
courts.
DIPLOMATIC AGENT. In international law. A
general name for all classes of persons charged
with the negotiation, transaction, or superintendence of the diplomatic business of one nation at
the court of another. See Rev.St.U.S. § 1674 (22
USCA §§ 40, 51).
DIPLOMATICS. The science of diplomas, or of
ancient writings and documents; the art of judging of ancient charters, public documents, diplomas, etc., and discriminating the true from the
talse. Webster.
DIPPING. The practice of taking snuff by rubbing teeth or gums with stick or brush dipped in
snuff. Federal Trade Commission v. American
Snuff Co., C.C.A., 38 F.2d 547, 550.
DIPSOMANIA. In medical jurisprudence. A
mental disease characterized by an uncontrollable
desire for intoxicating drinks. An irresistible impulse to indulge in intoxication, either by alcohol
or other drugs. Ballard v. State, 19 Neb. 614, 28
N.W. 271; State v. Wallace, 170 Or. 60, 131 P.2d
222, 223.
DIPSOMANIAC. A person subject to dipsomania. One who has an irresistible desire for alcoholic liquors. Taylor v. Koenigstein, 128 Neb. 809,
260 N.W. 544. See Insanity.
DIPTYCHA. Diptychs; tablets of wood, metal,
or other substance, used among the Romans for
the purpose of writing, and folded like a book of
two leaves. The diptychs of antiquity were especially employed for public registers. They were
used in the Greek, and afterwards in the Roman,
church, as registers of the names of those for
whom supplication was to be made, and are ranked among the earliest monastic records. Burrill.
DIRECT, v. To point to; guide; order; command; instruct. In re Durkee's Estate, 47 N.Y.S.
2d 721, 725, 726, 183 Misc. 382.
To advise; suggest; request. Bowden v. Cumberland County, 123 Me. 359, 123 A. 166, 168.
To assume the role of a director, one whose directions are binding. Gentle v. Frederick, 234
Ala. 184, 174 So. 606, 607.
DIRECT, adj. Immediate; proximate; by the
shortest course; without circuity; operating by
an immediate connection or relation, instead of
operating through a medium; the opposite of indirect. Trexler Lumber Co. v. Allemannia Fire
Ins. Co. of Pittsburgh, 289 Pa. 13, 136 A. 856, 858;
Western Assur. Co. v. Hann, 201 Ala. 376, 78 So.
232, 234; Carter v. Carter Coal Co., App.D.C., 298
U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160.
In the usual or natural course or line; immediately upwards or downwards; as distinguished
from that which is out of the line, or on the side
of it; the opposite of collateral.
In the usual or regular course or order, as distinguished from that which diverts, interrupts, or
opposes; the opposite of cross or contrary.
Without any intervening medium, agency or influence; unconditional. General Finance Co. v.
Powell, 118 P.2d 751, 753, 112 Mont. 535.
DIRECT ATTACK. A direct attack on a judgment or decree is an attempt, for sufficient cause,
to have it anrfulled, reversed, vacated, corrected,
declared void, or enjoined, in a proceeding instituted for that specific purpose, such as an appeal,
writ of error, bill of review, or injunction to restrain its execution; distinguished from a collateral attack, which is an attempt to impeach the
validity or binding force of the judgment or decree
as a side issue or in a proceeding instituted for
some other purpose. Morrill v. Morrill, 20 Or. 96,
25 P. 362; In re Melgaard's Will, 200 Minn. 493,
74 N.W. 641, 649. A direct attack on a judicial
proceeding is an attempt to void or correct it in
some manner provided by law.
DIRECT CAUSE. The active, efficient cause that
sets in motion a train of events which brings about
a result without the intervention of any force
started and working actively from a new and independent source. Anderson v. Steinle, 289 Ill.
App. 167, 6 N.E.2d 879. See, Cause.
DIRECT EVIDENCE. Is that means of proof
which tends to show the existence of a fact in
question, without the intervention of the proof
of any other fact, and is distinguished from circumstantial evidence, which is often called "indirect." See Brown; State v. Calder, 23 Mont. 504,
59 P. 903.
Direct evidence means evidence which in the first instance applies directly to the factum probandum, or which
i mmediately points to a question at issue, or is evidence
of the precise fact in issue and on trial by witnesses who
can testify that they saw the acts done or heard the words
spoken which constituted the precise fact to be proved.
Garner v. New Jersey Fidelity & Plate Glass Ins. Co., Mo.
App., 200 S.W. 448, Greenl.Ev. § 13; 1 Stark, Ev. 19;
Tayl, Ex. 84.
Proof of facts by witnesses who saw acts done or heard
words spoken. Texas & N. 0. R. Co. v. Warden, 125 Tex.
193, 78 S.W.2d 164, 167, 125 Tex. 193.
DIRECT EXAMINATION. In practice. The first
interrogation or examination of a witness, on the
merits, by the party on whose behalf he is called.
This is to be distinguished from an examination in pais,
or on the voir dire, which is merely preliminary, and is
had when the competency of the witness is challenged ;
from the cross-examination, which is conducted by the
adverse party ; and from the redirect examination which
follows the cross-examination, and is had by the party who
first examined the witness.
DIRECT INJURY. A wrong which directly results in the violation of a legal right and which
must exist to permit a court to determine the
constitutionality of an act of Congress. Wallace
v. Ganley, 95 F.2d 364, 366, 68 App.D.C. 235.
DIRECT INTEREST. A direct interest, such as
would render the interested party incompetent to
testify in regard to the matter, is an interest which
is certain, and not contingent or doubtful. Rine
546
DIRECTORY
DIRECTOR. One who, or that which directs; as
one who directs or regulates, guides or orders; a
manager or superintendent, or a chief administrative official. State ex inf. McKittrick v. Bode, 342
Mo. 162, 113 S.W.2d 805, 808.
v. Rine, 100 Neb. 225, 158 N.W. 941, 943. A matter which is dependent alone on the successful
prosecution of an execution cannot be considered
as uncertain, or otherwise than direct, in this
sense. In re Van Alstine's Estate, 26 Utah, 193, 72
P. 942.
Direct line. See Descent.
DIRECT LOSS. One resulting immediately and
proximately from the occurrence and not remotely from some of the consequences or effects thereof. Ermentrout v. Insurance Co., 63 Minn. 305, 65
N.W. 635, 30 L.R.A. 346, 56 Am.St.Rep. 481. See
Loss.
DIRECTORS. Persons appointed or elected according to law, authorized to manage and direct
the affairs of a corporation or company. The
whole of the directors collectively form the board
of directors. Jones Min. Co. v. Cardiff Min. Co.,
56 Utah, 449, 191 P. 426, 428.
DIRECT TAX. One that is imposed directly upon
property, according to its value. It is generally
spoken of as a property tax or an ad valorem tax.
City of De Land v. Florida Public Service Co.,
161 So. 735, 739, 119 Fla. 804.
DIRECTORY, adj. A provision in a statute, rule
of procedure, or the like, which is a mere direction
or instruction of no obligatory force, and involving no invalidating consequence for its disregard,
as opposed to an imperative or mandatory provision, which must be followed. In re Opinion of
the Justices, 124 Me. 453, 126 A. 354, 363. The
general rule is that the prescriptions of a statute
relating to the performance of a public duty are
so far directory that, though neglect of them may
be punishable, yet it does not affect the validity
of the acts done under them, as in the case of a
statute requiring an officer to prepare and deliver
a document to another officer on or before a certain day. And see Pearse v. Morrice, 2 Adol. &
El. 94; Nelms v. Vaughan, 84 Va. 696, 5 S.E. 704.
Under federal law. One that must be apportioned among the states according to population;
a capitation tax, or a tax on real estate. Commonwealth of Pennsylvania ex rel. Schnader v. Fix,
D.C.Pa., 9 F.Supp. 272, 276.
A "directory" provision in a statute is one, the observance of which is not necessary to the validity of the proceeding to which it relates; State v. Barnell, 109 Ohio St.
246, 142 N.E. 611, 613; one which leaves it optional with
the department or officer to which it is addressed to obey
or not as he may see fit; In re Thompson, 94 Neb. 658,
144 N.W. 243, 244.
DIRECTION. The act of governing; management; superintendence. Denton v. Yazoo & M.
V. R. Co., Miss., 284 U.S. 305, 52 S.Ct. 141, 142, 76
L.Ed. 310. Also the body of persons (called "directors") who are charged with the management
and administration of a corporation or institution.
Statutory requisitions are deemed "directory" only when
they relate to some immaterial matter where a compliance
is matter of convenience rather than of substance. This
mode of getting rid of a statutory provision by calling it
"directory" is not only unsatisfactory, on account of the
vagueness of the rule itself, but it is the exercise of a
dispensing power by the courts, which approaches so near
legislative discretion that it ought to be resorted to with
reluctance, only in extraordinary cases, where great public
mischief would otherwise ensue, or important private interests demand the application of the rule. Ellis v. Tillman, 125 Miss. 678, 88 So. 281, 283.
DIRECT PAYMENT. One which is absolute and
unconditional as to the time, amount, and the persons by whom and to whom it is to be made. People v. Boylan, C.C.Colo., 25 F. 595; Hurd v. McClellan, 14 Colo. 213, 23 P. 792.
As to direct "Consanguinity," "Contempt,"
"Damages," "Examination," "Interrogatories,"
"Tax," and "Trust," see those titles.
The charge or instruction given by the court
to a jury upon a point of law arising or involved
in the case, to be by them applied to the facts in
evidence.
The clause of a bill in equity containing the address of the bill to the court.
That which is imposed by directing; a guiding
or authoritative instruction; order; command.
State ex rel. Johnson v. Tilley, 137 Neb. 173, 288 N.
W. 521, 524; Hughes v. Van Bruggen, 44 N.M.
534, 105 P.2d 494, 496.
The line or course upon which anything is moving or aimed to move. Ruff v. Federal Tea Co.,
129 Conn. 455, 29 A.2d 441, 442.
DIRECTLY. In a direct way without anything
intervening; not by secondary, but by direct,
means. Clark v. Warner, 85 Okl. 153, 204 P. 929,
934; Olsen v. Standard Oil Co., 188 Cal. 20, 204 P.
393, 396.
DIRECTOR OF THE MINT. An officer having
the control, management, and superintendence of
the United States mint and its branches. He is
appointed by the president, by and with the
advice and consent of the senate.
Directory calls. Those which merely direct the
neighborhood where the different calls may be
found, whereas "locative calls" are those which
serve to fix boundaries. Cates v. Reynolds, 143
Tenn. 667, 228 S.W. 695, 696.
Directory statute. Under a general classification, statutes are either "mandatory" or "directory," and, if mandatory, they prescribe, in addition to requiring the doing of the things specified,
the result that will follow if they are not done,
whereas, if directory, their terms are limited to
what is required to be done. Hudgins v. Mooresville Consol. School Dist., 312 Mo. 1, 278 S.W. 769,
770. A statute is mandatory when the provision
of the statute is the essence of the thing required
to be done; otherwise, when it relates to form and
manner, and where an act is incident, or after jurisdiction acquired, it is directory merely. State
v. Kozer, 108 Or. 550, 217 P. 827, 832.
Directory trust. Where, by the terms of a trust,
the fund is directed to be vested in a particular
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DIRECTORY
manner till the period arrives at which it is to be
appropriated, this is called a "directory trust." It
is distinguished from a discretionary trust, in
which the trustee has a discretion as to the management of the fund. Deaderick v. Cantrell, 10
Yerg. (Tenn.) 272, 31 Am.Dec. 576.
DIRECTORY, n. Book containing names, addresses, and occupations of inhabitants of city. Also
any list or compilation, usually in book or pamphlet form, of persons, firms or corporations forming
some class separate and distinct from others, e.
g., telephone directory, hotel directory, etc.
American Travel & Hotel Directory Co. v. Gehring
Publishing Co., D.C., 4 F.2d 415.
DIRIBITORES. In Roman law. Officers who distributed ballots to the people, to be used in voting.
Tayl. Civil Law, 192.
lent to legal disability, both these expressions
meaning disabilities or disqualifications created
by positive law, as distinguished from physical disabilities. Stieffel v. Valentine Sugars, 188 La.
1091, 179 So. 6, 15. A physical disability is a disability or incapacity caused by physical defect or
infirmity, or bodily imperfection, or mental weakness or alienation; as,distinguished from civil disability, which relates to the civil status or condition of the person, and is imposed by the law.
Absence of competent physical, intellectual, or
moral powers; impairment of earning capacity ;
loss of physical function that reduces efficiency;
inability to work. Rorabaugh v. Great Eastern
Casualty Co., 117 Wash. 7, 200 P.2d 587, 590.
Temporary Disability
Temporary, as distinguished from permanent,
disability is a condition that exists until the injured employee is as far restored as the permanent
character of the injuries will permit. Consolidated Coal Co. of St. Louis v. Industrial Commission,
311 Ill. 61, 142 N.E. 498, 500.
DIRIMENT IMPEDIMENTS. In canon law. Absolute bars to marriage, which would make it null
oh initio.
DIRT. Filth or excrement; garden loam; earth
or soil, especially when loose; dust; garden earth.
Highley v. Phillips, 176 Md. 463, 5 A.2d 824, 827.
Total Disability
DISABILITY. The want of legal capability to
perform an act. Berkin v. Marsh, 18 Mont. 152, 44
Pac. 528, 56 Am.St.Rep. 565.
A crippled condition. Kimbrough v. National
Protective Ins. Ass'n, 225 Mo.App. 913, 35 S.W.2d
654, 657.
At the present day, disability is generally used to indicate an incapacity for the full enjoyment of ordinary legal rights; thus married women, persons under age, insane
persons, and felons convict are said to be under disability.
Sometimes the term is used in a more limited sense, as
when it signifies an impediment to marriage, or the restraints placed upon clergymen by reason of their spiritual
avocations. Mozley & Whitley.
Classification
Disability is either general or 'special; the former when it incapacitates the person for the performance of all legal acts of a general class, or
giving to them their ordinary legal effect; the
latter when it debars him from one specific act.
State ex rel. Sathre v. Moodie, 258 N.W. 558, 567,
65 N.D. 340. Disability is also either personal or
absolute; the former where it attaches to the
particular person, and arises out of his status,
his previous act, or his natural or juridical incapacity; State ex rel. Olson v. Langer, 65 N.D.
68, 256 N.W. 377; the latter where it originates
with a particular person, but extends also to his
descendants or successors. Lord de le Warre's
Case, 6 Coke, la; Avegno v. Schmidt, 5 Sup.Ct.
487, 113 U.S. 293, 28 L.Ed. 976. Considered with
special reference to the capacity to contract a
marriage, disability is either canonical or civil;
a disability of the former class makes the marriage voidable only, while the latter, in general,
avoids it entirely. However, it has been held that,
in the absence of statute, a court does not have jurisdiction to annul a marriage for a canonical disability. D. v. D., 2 Terry 263, 20 A.2d 139, 141.
The term civil disability is also used as equiva-
Total disability to follow insured's usual occupation arises where he is incapacitated from performing any substantial part of his ordinary duties, though still able to perform a few minor duties and be present at his place of business. Fidelity & Casualty Co. of New York v. Bynum, 221
Ky. 450, 298 S.W. 1080, 1082. "Total disability"
within an accident policy does not mean absolute
physical disability to transact any business pertaining to insured's occupation, but disability from
performing substantial and material duties connected with it. Jacobs v. Loyal Protective Ins.
Co., 97 Vt. 516, 124 A. 848, 852; Brown v. Missouri
State Life Ins. Co., 136 S.C. 90, 134 S.E. 224-225.
The term may also apply to any impairment of
mind or body rendering it impossible for insured
to follow continuously a substantially gainful occupation without seriously impairing his health,
the disability being permanent when of such nature as to render it reasonably certain to continue
throughout the lifetime of insured. Starnes v. U.
S., D.C.Tex., 13 F.2d 212, 213. See, also, Wholly
Disabled.
DISABLE. Ordinarily, to take away the ability
of, to render incapable of proper and effective action. Federal Union Life Ins. Co. of Cincinnati,
Ohio v. Richey's Adm'x, 256 Ky. 262, 75 S.W.2d
767, 768.
In the old language of pleading, to disable is to
take advantage of one's own or another's disability. Thus, it is "an express maxim of the common
law that the party shall not disable himself;"
but "this disability to disable himself * * * is
personal." 4 Coke, 123b.
DISABLING STATUTES. These are acts of parliament, restraining and regulating the exercise
of a right or the power of alienation; the term is
specially applied to 1 Eliz. c. 19, and similar acts
restraining the power of ecclesiastical corporations
to make leases.
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DISCHARGE
DISBAR. In England, to deprive a barrister permanently of the privileges of his position; it is
analogous to striking an attorney off the rolls. In
America, the word describes the act of a court in
rescinding an attorney's license to practice at its
bar. Gresham v. Superior Court of Los Angeles
County, 44 Cal.App.2d 664, 112 Pd 965, 967.
DISADVOCARE. To deny a thing.
DISAFFIRM. To repudiate; to revoke a consent
once given; to recall an affirmance. To refuse
one's subsequent sanction to a former act; to disclaim the intention of being bound by an antecedent transaction.
DISAFFIRMANCE. The repudiation of a former
transaction. The refusal by one who has the legal
power to refuse, (as in the case of a voidable contract,) to abide by his former acts, or accept the
legal consequences of them. It may either be
"express" (in words) or "implied" from acts inconsistent with a recognition of validity of former
transaction. Ryan v. Morrison, 40 Okl. 49, 135
P. 1049, 1050.
DISBOCATIO. In old English law. A conversion
of wood grounds into arable or pasture; an assarting. Cowell. See Assart.
DISBURSEMENTS. Money paid out or expended
for which one is entitled to a credit upon rendering an account of his doings. Tinkler v. Powell,
23 Wyo. 352, 151 P. 1097, 1098.
The term is also used under the codes of civil
procedure, to designate the expenditures necessarily made by a party in the progress of an action, aside from the fees of officers and court
costs, which are allowed, eo nomine, together with
costs. Fertilizer Co. v. Glenn, 48 S.C. 494, 26 S.E.
796; Sasser v. Stuyvesant Ins. Co., 258 App.Div.
340, 16 N.Y.S.2d 401, 402, 403.
DISAFFOREST. To restore to their former condition lands which have been turned into forests.
To remove from the operation of the forest laws.
2 Bl.Comm. 416.
DISAGREEMENT. Difference of opinion or want
of uniformity or concurrence of views; as, a disagreement among the members of a jury, among
the judges of a court, or between arbitrators. Darnell v. Lyon, 85 Tex. 466, 22 S.W. 304.
In Real Property Law
The refusal by a grantee, lessee, etc., to accept
an estate, lease, etc., made to him; the annulling
of a thing that had essence before. No estate can
be vested in a person against his will. Consequently no one can become a grantee, etc., without
his agreement. The law implies such an agreement until the contrary is shown, but his disagreement renders the grant, etc., inoperative. Wharton.
DISALT. To disable a person.
DISALLOW. To refuse to allow, to deny the validity of, to disown or reject. Stewart v. Yellowtail, D.C.Mont., 35 F.Supp. 798, 799.
DISAPPROPRIATION. In ecclesiastical law.
This is where the appropriation of a benefice is
severed, either by the patron presenting a clerk or
by the corporation which has the appropriation
being dissolved. 1 Bl.Comm. 385.
DISAPPROVE. To pass unfavorable judgment
upon; to refuse official approbation to; to disallow; to decline to sanction; to refuse to confirm,
ratify or consent to. Stewart v. Yellowtail, D.C.
Mont., 35 F.Supp. 798, 799.
DISASTER. A sudden and ruinous misfortune,
hence, one who had been pronounced by eminent
physicians to be afflicted with dementia praecox,
who had nervous breakdown, and who was without funds or ability to earn them by either mental
or physical exertion, was overtaken by disaster.
Robison v. Elston Bank & Trust Co., 113 Ind.App.
633, 48 N.E.2d 181, 188.
DISAVOW. To repudiate the unauthorized acts
of an agent; to deny the authority by which he
assumed to act.
DISCARCARE. In old English law. To discharge, to unload; as a vessel. Carcare et discarcare; to charge and discharge; to load and unload. Cowell.
DISCARGARE. In old European law. To discharge or unload, as a wagon. Spelman.
DISCEPTIO CAUSE. In Roman law. The argument of a cause by the counsel on both sides.
Calvin.
DISCHARGE. To release, Clark v. Sperry, 125
W.Va. 718, 25 S.E.2d 870, 872; liberate, People ex
rel. La Velle v. Trophagen, 236 N.Y.S. 214, 216, 134
Misc. 604; annul, Glaser v. Haskin, 140 Or. 392,
13 P.2d 1071, 1074; unburden; disincumber; dismiss, The Losmar, D.C.Md., 20 F.Supp. 887, 891;
extinguish an obligation, Mazur v. Stein, 314 Ill.
App. 529, 41 N.E.2d 979, 981; remove from employment, Bourne v. Board of Education of City of
Roswell, 46 N.M. 310, 128 P.2d 733, 735.
In the Law of Contracts
To cancel or unloose the obligation of a contract; to make an agreement or contract null and
inoperative. As a noun, the word means the act
or instrument by which the binding force of a contract is terminated, irrespective of whether the
contract is carried out to the full extent contemplated (in which case the discharge is the result of
performance) or is broken off before complete
execution. Rivers v. Blom, 163 Mo. 442, 63 S.W.
812.
Discharge is a generic term; its principal species are rescission, release, accord and satisfaction, performance,
judgment, composition, bankruptcy, merger (q. v.) .
Leake, Cont. 413.
As applied to demands, claims, rights of action,
incumbrances, etc., to discharge the debt or claim
is to extinguish it, to annul its obligatory force,
to satisfy it. And here also the term is generic;
thus a debt, a mortgage, a legacy, may be dis-
549
DISCHARGE
charged by payment or performance, or by any
act short of that, lawful in itself, which the creditor accepts as sufficient. Blackwood v. Brown,
29 Mich. 484; Rangely v. Spring; 28 Me. 151. To
discharge a person is to liberate him from the
binding force of an obligation, debt, or claim.
There is a distinction between a "debt discharged" and
a "debt paid." When discharged the debt still exists
though divested of its character as a legal obligation during the operation of the discharge. Something of the
original vitality of the debt continues to exist which may
be transferred, even though the transferee takes it subject to its disability incident to the discharge. The fact
that it carries something which may be a consideration for
a new promise to pay, so as to make an otherwise worthless promise a legal obligation, makes it the subject of
transfer by assignment. Stanek v. White, 172 Minn. 390,
215 N.W. 784.
Discharge by operation of law is where the discharge
takes place, whether it was intended by the parties or
not; thus, if a creditor appoints his debtor his executor,
the debt is discharged by operation of law, because the
executor cannot have an action against himself. Co. Litt.
264b, note 1; Williams, Ex'rs, 1216; Chit.Cont. 714.
In Bankruptcy Practice
The discharge of the bankrupt is the step which
regularly follows the adjudication of bankruptcy
and the administration of his estate. By it he is
released from the obligation of all his debts which
were or might be proved in the proceedings, so
that they are no longer a charge upon him, and
so that he may thereafter engage in business and
acquire property without its being liable for the
satisfaction of such former debts. Pitcairn v.
Scully, 252 Pa. 82, 97 A. 120, 121.
In Civil Practice
To discharge a rule, an order, an injunction, a
certificate, process of execution, or in general any
proceeding in a court, is to cancel or annul it, or
to revoke it, or to refuse to confirm its original
provisional force. Nichols v. Chittenden, 14 Colo.
App. 49, 59 P. 954.
To discharge a jury is to relieve them from any
further consideration of a cause. This is done
when the continuance of the trial is, by any cause,
rendered impossible; also when the jury, after
deliberation, cannot agree on a verdict.
In Criminal Practice
The act by which a person in confinement, held
on an accusation of some crime or misdemeanor,
is set at liberty. The writing containing the order
for his being so set at liberty is also called a "discharge." In re Eddinger, 236 Mich. 668, 211 N.W.
54.
In Equity Practice
In the process of accounting before a master
in chancery, the discharge is a statement of expenses and counter-claims brought in and filed, by
way of set-off, by the accounting defendant;
which follows the charge in order.
In Maritime Law
The unlading or unlivery of a cargo from a vessel. The Bird of Paradise v. Heyneman, 5 Wall.
557, 18 L.Ed. 662.
In Military Law
The release or dismissal of a soldier, sailor, or
marine, from further military service, either at
the expiration of his term of enlistment, or previous thereto on special application therefor, or as
a punishment. An "honorable" discharge is one
granted at the end of an enlistment and accompanied by an official certificate of good conduct
during the service. A "dishonorable" discharge is
a dismissal from the service for bad conduct or as
a punishment imposed by sentence of a court-martial for offenses against the military law. There
is also in occasional use a form of "discharge
without honor," which implies censure, but is not
in itself a punishment. U. S. v. Sweet, 23 S.Ct.
638, 189 U.S. 471, 47 L.Ed. 907.
A discharge from the army is the discharge given one
who was actually in military service, as distinguished
from a mere discharge from draft. Patterson v. Lamb,
App.D.C., 67 S.Ct. 448, 329 U.S. 539, 91 L.Ed. 485.
A discharge from draft is the discharge given selectees
who reported for military service in World War I and were
rejected at camp after induction for unfitness, dependency
and the like. Thus a selectee who reported on November
11, 1918 but was told that draft call was cancelled because
of the armistice was properly given a discharge from draft,
rather than a discharge from the army and could not claim
veterans' rights. Patterson v. Lamb, App.D.C., 67 S.Ct.
448, 329 U.S. 539, 91 L.Ed. 485.
DISCIPLINE. Instruction, comprehending the
communication of knowledge and training to observe and act in accordance with rules and orders.
In re Swenson, 183 Minn. 602, 237 N.W. 589.
Correction, chastisement, punishment, penalty.
Rules and regulations. Reutkemeier v. Nolte, 179
Iowa, 342, 161 N.W. 290, 292, L.R.A.1917D, 273.
DISCLAIMER. The repudiation or renunciation
of a claim or power vested in a person or which
he had formerly alleged to be his. The refusal,
or rejection of an estate or right offered to a person. The disavowal, denial, or renunciation of an
interest, right, or property imputed to a person
or alleged to be his. Also the declaration, or the
instrument, by which such disclaimer is published.
Moores v. Clackamas County, 40 Or. 536, 67 P.
662.
Of Estate
The act by which a party refuses to accept an
estate which has been conveyed to him. Thus,
a trustee who releases to his fellow-trustees his
estate, and relieves himself of the trust, is said
to disclaim. Kentucky Union Co. v. Cornett, 112
Ky. 677, 66 S.W. 728.
A renunciation or a denial by a tenant of his
landlord's title, either by refusing to pay rent,
denying any obligation to pay, or by setting up a
title in himself or a third person, and this is a
distinct ground of forfeiture of the lease or other
tenancy, whether of land or tithe. See 16 Ch. Div.
730.
In Patent Law
When the title and specifications of a patent
do not agree, or when part of that which it covers
is not strictly patentable, because neither new nor
useful, the patentee is empowered, with leave of
the court, to enter a disclaimer of any part of
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DISCOUNT
either the title or the specification, and the disclaimer is then deemed to be part of the letters
patent or specification, so as to render them valid
for the future. Permutit Co. v. Wadham, C.C.A.
Mich., 15 F.2d 20, 21.
before any step has been taken in the action subsequent to the answer, or at any other time by
order of the court or a judge; a non-suit; dismissal. Payne v. Buena Vista Extract Co., 124
Va. 296, 98 S.E. 34, 39.
In Pleading
In practice, discontinuance and dismissal import the same
thing, viz., that the cause is sent out of court. Thurman v.
James, 48 Mo. 235.
A renunciation by the defendant of all claim to
the subject of the demand made by the plaintiff's
bill. Wilson v. McCoy, 93 W.Va. 667, 117 S.E. 473,
475.
DISCLAMATION. In Scotch law. Disavowal of
tenure; denial that one holds lands of another.
Bell.
DISCLOSE. To bring into view by uncovering, to
lay bare, to reveal to knowledge, to free from
secrecy or ignorance, or make known. State v.
Krokston, 187 Mo.App. 67, 172 S.W. 1156, 1157.
In Public Works
Refers to the termination or abandonment of
a project, structure, highway, or the like. Fulton
County v. Board of Hudson River Regulating Dist.,
248 N.Y.S. 8, 10, 231 App.Div. 408.
Ending, causing to cease, ceasing to use, giving
up, leaving off. Keenan v. Broad River Power
Co., 163 S.C. 133, 161 S.E. 330, 331.
In Zoning Ordinances
Synonymous with abandonment. State ex rel.
Schaetz v. Mander, 206 Wis. 121, 238 N.W. 835,
837.
DISCLOSURE. Revelation; the impartation of
that which is secret. Commonwealth v. Chesapeake & 0. Ry. Co., 137 Va. 526, 120 S.E. 506, 509.
That which is disclosed or revealed. Webster,
Dict.
In patent law, the specification; the statement
of the subject-matter of the invention, or the
manner in which it operates. Westinghouse Electric & Mfg. Co. v. Metropolitan Electric Mfg. Co.,
C.C.A.N.Y., 290 F. 661, 664.
What any patentee has invented is theoretically what he
discloses, and the "disclosure" is the specification while
a "claim" is a definition of that which has been disclosed
in the specification; the disclosure telling how to do that
of which the claimant attempts definition. Westinghouse
Electric & Mfg. Co. v. Metropolitan Electric Mfg. Co., C.C.
A.N.Y., 290 F. 661, 664.
DISCONTINUANCE OF AN ESTATE. The termination or suspension of an estate-tail, in consequence of the get of the tenant in tail, in conveying a larger estate in the land than he was by
law entitled to do. 2 Bl.Comm. 275; 3 Bl.Comm.
171. An alienation made or suffered by tenant
in tail, or by any that is seised in autre droit,
whereby the issue in tail, or the heir or successor,
or those in reversion or remainder, are driven to
their action, and cannot enter. Co. Litt. 325a.
The cesser of a seisin under an estate, and the
acquisition of a seisin under a new and necessarily
a wrongful title. Prest. Merg. c. ii.
Discontinuare nihil aliud significat quam intermittere, desuescere, interrumpere. Co. Litt. 325.
To discontinue signifies nothing else than to intermit, to disuse, to interrupt.
DISCOMMON. To deprive commonable lands of
their commonable quality, by inclosing and appropriating or improving them.
DISCONTINUANCE.
In Pleading
That technical interruption of the proceedings
in an action which follows where a defendant
does not answer the whole of the plaintiff's declaration, and the plaintiff omits to take judgment for the part unanswered. Steph. Pl. 216,
217.
In Practice
The termination of an action, in consequence
of the plaintiff's omitting to continue the process
or proceedings by proper entries on the record.
3 Bl.Comm. 296; 1 Tidd, Pr. 678; 2 Arch.Pr.K.B.
233. Hadwin v. Railway Co., 67 S.C. 463, 45 S.E.
1019.
DISCONTINUANCE. Occasional; intermittent;
characterized by separate repeated acts; as, discontinuous easements and servitudes. See Easement.
DISCONVENABLE. L. Fr. Improper; unfit.
Kelham.
DISCOUNT. In a general sense, an allowance or
deduction made from a gross sum on any account
whatever. In a more limited and technical sense,
the taking of interest in advance. Cooper v. National Bank of Savannah, 21 Ga.App. 356, 94 S.
E. 611, 614.
In practice, a discontinuance is a chasm or gap left by
neglecting to enter a continuance. By our practice, a
neglect to enter a continuance, even in a defaulted action,
by no means puts an end to it, and such actions may always be brought forward. Taft v. Northern Transp. Co.,
56 N.H. 416; Porter v. Watkins, 196 Ala. 333, 71 So. 687,
688.
By the language of the commercial world and
the settled practice of banks, a discount by a bank
means a drawback or deduction made upon its advances or loans of money, upon negotiable paper
or other evidences of debt payable at a future
day, which are transferred to the bank. See, also,
Valley Mortg. Co. v. Patterson, 30 Ala.App. 492,
8 So.2d 213, 214.
The cessation of the proceedings in an action
where the plaintiff voluntarily puts an end to it,
either by giving notice in writing to the defendant
Although the discounting of notes or bills, in its most
comprehensive sense, may mean lending money and taking
notes in payment, yet, in its more ordinary sense, the discounting of notes or bills means advancing a consideration
551
DISCOUNT
for a bill or note, deducting or discounting the interest
which will accrue for the time the note has to run. In re
Worth Lighting & Fixture Co., D.C.N.Y., 292 F. 769, 772.
Discounting by a bank means lending money upon a
note, and deducting the interest or premium in advance.
Meserole Securities Co. v. Cosman, 253 N.Y. 130, 170 N.E.
519, 521.
Discount, as we have seen, is the difference between the
price and the amount of the debt, the evidence of which
is transferred. That difference represents interest charged,
being at the same rate, according to which the price paid,
if invested until the maturity of the debt, will just produce
its amount. Napier v. John V. Farwell Co., 60 Colo. 319,
153 P. 694, 695.
Commission Equivalent
Where agreement provides for underwriting
shares at "discount" of certain per cent., word
"discount" is equivalent to commission. Stewart
v. G. L. Miller & Co., 161 Ga. 919, 132 S.E. 535,
538, 45 A.L.R. 559.
Discounting a note and buying it are not identical in
meaning, the latter expression being used to denote the
transaction when the seller does not indorse the note, and
is not accountable for it. Bank v. Baldwin, 23 Minn. 206,
23 Am. Rep. 683.
In Practice
A set-off or defalcation in an action. Vin. Abr.
"Discount." But see Trabue's Ex'r v. Harris, 1
Metc. (Ky.) 597.
DISCOUNT BROKER. A bill broker; one who
discounts bills of exchange and promissory notes,
and advances money on securities.
DISCOVER. To uncover that which was hidden,
concealed, or unknown from every one. Stanolind Oil & Gas Co. v. State, Tex.Civ.App., 114 S.
W.2d 699, 706.
To get first sight or knowledge of; to get knowledge of what has existed but has not theretofore
been known to the discoverer. Shellmar Products
Co. v. Allen-Qualley Co., C.C.A.Ill., 87 F.2d 104, 108.
In Mining Law
As the basis of the right to locate a mining
claim upon the public domain, discovery means
the finding of mineralized rock in place. U. S. v.
Safe Investment Gold Mining Co., C.C.A.S.D., 258
F. 872, 877; Dalton v. Clark, 129 Cal.App. 136, 18
P.2d 752.
In Patent Law
The finding out some substance, mechanical device, improvement, or application, not previously
known. Dunbar v. Meyers, 94 U.S. 197, 24 L.Ed.
34. It is something less than invention, and may
be the result of industry, application, or be perhaps merely fortuitous. A. 0. Smith Corporation
v. Petroleum Iron Works Co. of Ohio, C.C.A.Ohio,
73 F.2d 531, 538.
In Practice
The disclosure by the defendant of facts, titles,
documents, or other things which are in his exclusive knowledge or possession, and which are
necessary to the party seeking the discovery as
a part of a cause or action pending or to be
brought in another court, or as evidence of his
rights or title in such proceeding. Tucker v. U.
S., 151 U.S. 164, 14 S.Ct. 299, 38 L.Ed. 112; Kelley
v. Boettcher, 85 F. 55, 29 C.C.A. 14.
Also used of the disclosure by a bankrupt of
his property for the benefit of creditors.
A favored equitable remedy to secure evidence
in the other party's possession. C. F. Simonin's
Sons v. American Can Co., D.C.Pa., 22 F.Supp.
784, 786.
DISCOVERY, BILL OF. In equity pleading. A.
bill for the discovery of facts resting in the knowledge of the defendant, or of deeds or writings,
or other things in his custody or power; but seeking no relief in consequence of the discovery,
though it may pray for a stay of proceedings at
law till the discovery is made. Story, Eq. Pl. §§
311, 312, and notes; Mitf. Eq. Pl. 53.
DISCOVERED PERIL, DOCTRINE OF. A name
for the doctrine otherwise known as that of the
"last clear chance." See that title.
DISCOVERY VEIN. See Vein.
DISCOVERT. Not married; not subject to the
disabilities of a coverture. It applies equally to
a maid and a widow.
DISCOVERY. In a general sense, the ascertainment of that which was previously unknown; the
disclosure or coming to light of what was previously hidden; the acquisition of notice or knowledge of given acts or facts; as, in regard to the
"discovery" of fraud affecting the running of the
statute of limitations, or the granting of a new
trial for newly "discovered" evidence. Parker v.
Kuhn, 21 Neb. 413, 32 N.W. 74, 59 Am.Rep. 852.
Howton v. Roberts, 49 S.W. 340, 20 Ky.Law Rep.
1331.
In International Law
As the foundation for a claim of national ownership or sovereignty, discovery is the finding of
a country, continent, or island previously unknown, or previously known only to its uncivilized
inhabitants. Martin v. Waddell, 16 Pet. 409, 10
L.Ed. 997,
DISCREDIT. To destroy or impair the credibility
of a person; to impeach; to lessen the degree of
credit to be accorded to a witness or document,
as by impugning the veracity of the one or the
genuineness of the other; to disparage or weaken
the reliance upon 'the testimony of a witness, or
upon documentary evidence, by any means whatever.
DISCREETLY. Prudently; judiciously; with discernment. Parks v. City of Des Moines, 195 Iowa,
972, 191 N.W. 728, 731.
DISCREPANCY. A difference between two things
which ought to be identical, as between one writing and another; a variance, (q. v.) Also discord,
discordance, dissonance, dissidence, unconformity,
disagreement, difference. State v. Superior Court
of King County, 138 Wash. 488, 244 P. 702, 703.
DISCRETELY. Separately; disjunctively. Parks
v. City of Des Moines, 195 Iowa, 972, 191 N.W. 728,
731.
552
DISCRIMINATION
Discretio est discerners per legem quid sit justum. • and self-control; prudence; circumspection; wariness. Arkansas Valley Town & Land Co. v. At10 Coke, 140. Discretion is to know through law
chison, T. & S. F. Ry. Co., 49 Okl. 282, 151 P. 1028,
what is just.
1031.
Discretio est scire per legem quid sit justum. Discretion consists in knowing what is just in law.
DISCRETIONARY DAMAGES. Those which are
Le Roy v. New York, 4 Johns. Ch. (N. Y.) 352,
measureable by enlightened conscience of impar356.
tial jurors. Southern Ry. Co. v. Groover, 41 Ga.
App. 746, 154 S.E. 706, 707.
DISCRETION. Power or privilege of the court
to act unhampered by legal rule. Osborn v. UnitDISCRETIONARY POWER. One which is not
ed States Bank, 9 Wheat. 866, 6 L.Ed. 204; Murimperative or, if imperative, the time, manner,
ray v. Buell, 74 Wis. 14, 41 N.W. 1010, 11 L.R.A.
or extent of execution of which is left to donee's
446.
discretion; the power to do or to refrain from
When applied to public functionaries, discretion means a
doing a certain thing. City of San Antonio v. Zogpower or right conferred upon them by law of acting
heib, Tex.Civ.App., 70 S.W.2d 333, 334.
officially in certain circumstances, according to the dictates
of their own judgment and conscience, uncontrolled by the
judgment or conscience of others. This discretion undoubtedly is to some extent regulated by usage, or, if the
term is preferred, by fixed principles. But by this is to
be understood nothing more than that the same court cannot, consistently with its own dignity, and with its character and duty of administering impartial justice, decide in
different ways two cases in every respect exactly alike.
The question of fact whether the two cases are alike in
every color, circumstance, and feature is of necessity to
be submitted to the judgment of some tribunal. State v.
Tindell, 112 Kan. 256, 210 P. 619, 622. Board of Permanent
Road Com'rs of Hunt County v. Johnson, Tex.Civ.App.,
231 S.W. 859, 860.
Judicial Discretion, Legal Discretion
These terms are applied to the discretionary action of a
judge or court, and mean discretion as above defined, that
is, discretion bounded by the rules and principles of law,
and not arbitrary, capricious, or unrestrained. "Judicial
discretion" is substantially synonymous with judicial power. Griffin v. State, 12 Ga.App. 615, 77 S.E. 1080, 1083.
It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by
law, Smith v. Hill, C.C.A., 5 F.2d 188, or the equitable
decision of what is just and proper under the circumstances, People v. Pfanschmidt, 262 Ill. 411, 104 N.E. 804,
816, Ann.Cas.1915A, 1171. It is simply the technical name
of the decision of certain questions of fact by the court.
Nawn v. Boston & M. R. R., 77 N.H. 299, 91 A. 181, 182.
Lord Coke defines judicial discretion to be "discernere
per legem quid sit justum," to see what would be just ac-
cording to the laws in the premises. It does not mean a
wild self-willfulness, which may prompt to any and every
act; but this judicial discretion is guided by the law, (see
what the law declares upon a certain statement of facts,
and then decide in accordance with the law,) so as to do
substantial equity and justice. Faber v. Bruner, 13 Mo.
543. It is a legal discretion to be exercised in discerning
the course prescribed by law ' and is not to give effect to
the. will of the judge, but to that of the law. McGurty v.
Delaware, L. & W. R. Co., 158 N.Y.S. 285, 286, 172 App.
Div. 46.
True, it is a matter of discretion; but then the discretion is not willful or arbitrary, but legal. And, although
its exercise be not purely a matter of law, yet it "involves
a matter of law or legal inference," in the language of
the Code, and an appeal will lie. Lovinier v. Pearce, 70 N.
C. 171.
Legal discretion, is the exercise of discretion where there
are two alternative provisions of law applicable, under either of which court could proceed. Shannon v. Hendrixson, Ohio App., 32 N.E.2d 431, 432.
In criminal law and the law of torts, it means
the capacity to distinguish between what is right
and wrong, lawful or unlawful, wise or foolish,
sufficiently to render one amenable and responsible for his acts. Towle v. State, 3 Fla. 214.
Wise conduct and management; cautious discernment, especially as to matters of propriety
DISCRETIONARY TRUSTS. Such as are not
marked out on fixed lines, but allow a certain
amount of discretion in their exercise. Those
which cannot be duly administered without the
application of a certain degree of prudence and
judgment. Greenwich Trust Co. v. Tyson, 129
Conn. 211, 27 A.2d 166, 172.
DISCRIMINATION. With reference to common
carriers (especially railroads), a breach of the
carrier's duty to treat all shippers alike, and afford them equal opportunities to market their
product. Cox v. Pennsylvania R. Co., 240 Pa. 27,
87 A. 581, 583. A carrier's failure to treat all alike
under substantially similar conditions. Kentucky
Traction & Terminal Co. v. Murray, 176 Ky. 593,
195 S.W. 1119, 1120.
"Discrimination" is a term well understood in the nomenclature of transportation over railroads. It implies to
charge shippers of freight, as compensation for carrying
the same over railroads, unequal sums of money for the
same quantity of freight for equal distances; more for
shorter than a longer distance, more in proportion of distance for a shorter than a longer distance; more for
freights called local freights than those designated otherwise; more for the former in proportion to distance such
freights may be carried than the latter. Atchison, T. & S.
F. Ry. Co. v. State, 85 Okl. 223, 206 P. 236, 239.
In constitutional law, the effect of a statute
which confers particular privileges on a class arbitrarily selected from a large number of persons,
all of whom stand in the same relation to the
privileges granted and between whom and those
not favored no reasonable distinction can be
found. Franchise Motor Freight Ass'n v. Seavey,
196 Cal. 77, 235 P. 1000, 1002.
In general, a failure to treat all equally; favoritism. Employment, Mische v. Kaminski, 127
Pa.Super. 66, 193 A. 410, 416; Board of Com'rs of
Huron County v. State ex rel. Clarke, 127 Ohio
St. 341, 188 N.E. 551, 552; Selective service, United States ex rel. Lynn v. Downer, C.C.A.N.Y., 140
F.2d 397, 401; marriages between negroes or mulattoes and white persons, Jackson v. City and
County of Denver, 109 Colo. 196, 124 P.2d 240, 241;
differential in teachers' salaries based solely on
the ground of race and color, Thomas v. Hibbitts,
D.C.Tenn., 46 F.Supp. 368, 371; taxation, Atlantic
Pipe Line Co. v. Brown County, D.C.Tex., 12 F.
Supp. 642, 647.
553
DISCUSSION
DISCUSSION.
In the Civil Law
A proceeding, at the instance of a surety, by
which the creditor is obliged to exhaust the property of the principal debtor, towards the satisfaction of the debt, before having recourse to the
surety; and this right of the surety is termed the
"benefit of discussion."
In Scotch Law
The ranking of the proper order in which heirs
are liable to satisfy the debts of the deceased.
Bell.
DISEASE. Deviation from the healthy or normal condition of any of the functions or tissues
of the body; an alteration in the state of the body
or of some of its organs, interrupting or disturbing the performance of the vital functions, and
causing or threatening pain and weakness; illness; sickness; disorder; malady; bodily infirmity. Order of United Commercial Travelers
of America v. Nicholson, C.C.A.N.Y., 9 F.2d 7, 14;
Merriam v. Hamilton, 64 Or. 476, 130 P. 406, 407.
In construing a policy of life insurance, it is
generally true that, before any temporary ailment
can be called a "disease," it must be such as to
indicate a vice in the constitution, or be so serious
as to have some bearing upon general health and
the continuance of life, or such as, according to
common understanding, would be called a "disease." Delaney v. Modern Ace. Club, 121 Iowa
528, 97 N.W. 91, 63 L.R.A. 603; Metropolitan Casualty Ins. Co. v. Cato, 113 Miss. 303, 74 So. 118, 119.
An ulcer is a "disease" or "infection," within Workmen's Compensation Law, § 3, subd. 7, declaring that "Injury," or "personal injury," as used in the act, means
only accidental injuries arising out of and in the course
of employment and such disease or infection as may naturally and unavoidably result therefrom. Pinto v. Chelsea
Fibre Mills, 186 N.Y.S. 748, 750, 196 App.Div. 221; For
"Existing Disease" see that title.
DISEASE COMMON TO BOTH SEXES. Malady,
sickness, or illness that both males and females
have. National Life & Accident Ins. Co. v. Weaver,
Tex.Civ.App., 226 S.W. 754, 757.
compels them, if they vote, to vote for representatives or
political parties other than that to which they belong, and
the deprivation of the right of selection is a deprivation of
the right of franchise. Communist Party of United States
of America v. Peek, 20 Ca1.2d 536, 127 P.2d 889, 894.
DISFRANCHISEMENT. The act of disfranchising. The act of depriving a member of a corporation of his right as such, by expulsion. 1
Bouv. Inst. no. 192. In re Koch, 257 N.Y. 318, 178
N.E. 545, 546.
It differs from amotion (q. v.) which is applicable to the removal of an officer from office, leaving him his rights as a member. Ang. & A. Corp.
237.
In a more popular sense, the taking away of the
elective franchise (that is, the right of voting in
public elections) from any citizen or class of
citizens.
DISGAVEL. In English law. To deprive lands
of that principal quality of gavelkind tenure by
which they descend equally among all the sons
of the tenant. 2 Wood. Lect. 76; 2 Bl. Comm. 85.
DISGRACE. Ignominy; shame; dishonor. No
witness is required to disgrace himself. 13 How.
State Tr. 17, 334; Bander v. Metropolitan Life
Ins. Co., 313 Mass. 337, 47 N.E.2d 595, 600.
DISGRADING. In old English law. The depriving of an order or dignity.
DISGUISE, v. To change the guise or appearance of, especially to conceal by unusual dress;
to hide by a counterfeit appearance; to affect
or change by liquor; to intoxicate. Darneal v.
State, 14 Okl.Cr. 540, 174 P. 290, 292, 1 A.L.R. 638.
DISGUISE, n. A counterfeit habit; a dress intended to conceal the person who wears it. Webster. Also slight intoxication. Darneal v. State,
14 Okl.Cr. 540, 174 P. 290, 292, 1 A.L.R. 638.
. Anything worn upon the person with the intention of so altering the wearer's appearance
that he shall not be recognized by those familiar
with him, or that he shall be taken for another
person.
A person lying in ambush, or concealed behind bushes, is
not in "disguise," within the meaning of a statute declaring the county liable in damages to the next of kin of any
one murdered by persons in disguise. Dale County v.
Gunter, 46 Ala. 118, 142.
DISENTAILING DEED. In English law. An enrolled assurance barring an entail, pursuant to 3
& 4 Wm. IV. c. 74.
DISFIGUREMENT. That which impairs or injures the beauty, symmetry, or appearance of a
person or thing; that which renders unsightly,
misshapen, or imperfect, or deforms in some manner. Vukelich v. Industrial Commission of Utah,
62 Utah, 486, 220 P. 1073, 1075; Lee v. Commonwealth, 135 Va. 572, 115 S.E. 671, 673.
DISHERISON. Disinheritance; depriving one of
an inheritance. Obsolete. See Abernethy v. Orton, 42 Or. 437, 71 P. 327, 95 Am.St.Rep. 774.
DISHERITOR. One who disinherits, or puts another out of his freehold. Obsolete.
DISFRANCHISE. To deprive of the rights and
privileges of a free citizen; to deprive of charter..
ed rights and immunities; to deprive of any franchise, as of the right of voting in elections, etc.
Webster.
In any election where the party system furnishes the
means by which the citizen's right of suffrage is made effective, denial of his party's right to participate in the
election accomplishes the "disfranchisement of voters" or
DISHONESTY. Disposition to lie, cheat or defraud; untrustworthiness; lack of integrity. Alsup v. State, 91 Tex.Cr.R. 224, 238 S.W. 667, 669.
DISHONOR. In mercantile law and usage. To
refuse or decline to accept a bill of exchange, or
to refuse or neglect to pay a bill or note at maturity. Shelton v. Braithwaite, 7 Mees. & W. 436;
Brewster v. Arnold, 1 Wis. 276.
554
DISMISSAL
1918F, 402; uncooperative, Sullivan V. Warner
Bros. Theatres, 42 Cal.App.2d 660, 109 P.2d 760,
762.
Notice of Dishonor
A notice given by the holder to the drawer of
a bill, or to an indorser of a bill or note, that it
has been dishonored by nonacceptance on presentment for acceptance, or by nonpayment at its
maturity. 2 Daniel, Neg. Inst. § 970.
As respects the flag, to deface or defile, imputing a lively sense of shaming or an equivalent
acquiescent callousness. State v. Schlueter, 127
N.J.L. 496, 23 A.2d 249, 251.
DISMES. Tenths; tithes, (q. v.). The original
form of "dime," the name of the American coin.
DISINCARCERATE. To set at liberty, to free
from prison.
DISINFECTED. Made free from injurious or
contagious diseases. Clampitt v. St. Louis Southwestern Ry. Co. of Texas, Tex.Civ.App., 185 S.W.
342, 344.
DISINHERISON. In the civil law. The act of
depriving a forced heir of the inheritance which
the law gives him.
Disinherison is a testamentary disposition and not a mere
penalty for lack of filial respect, but such a testamentary
disposition is not self-operative and something more than
its mere appearance in a will is required to give it effect.
Successions of Lissa, 198 La. 129, 3 So.2d 534, 542.
DISINHERITANCE. The act by which the owner
of an estate deprives a person, who would otherwise be his heir, of the right to inherit it. Copeland v. Johnson, 101 Okl. 228, 224 P. 986, 988.
DISINTER. To exhume, unbury, take out of the
grave. People v. Baumgartner, 135 Cal. 72, 66
P. 974.
DISINTERESTED. Not concerned, in respect to
possible gain or loss, in the result of the pending
proceedings; impartial, not biased or prejudiced.
McGilvery v. Staples, 16 A. 404, 81 Me. 101; Kraft
v. Tenningkeit, 204 Iowa, 15, 214 N.W. 562, 563.
DISINTERESTED WITNESS. One who has no
interest in the cause or matter in issue, and who
is lawfully competent to testify. Fitzhugh v.
Nirschl, 77 Or. 514, 151 P. 735, 736. In re Palethorp's Estate, 249 Pa. 389, 94 A. 1060, 1065.
DISJUNCTIVE ALLEGATION. A statement in
a pleading or indictment which expresses or
charges a thing alternatively, with the conjunction "or;" for instance, an averment that defendant "murdered or caused to be murdered," etc.,
would be of this character. Hand v. Hand, 23 N.
J.Misc. 118, 41 A.2d 270, 271.
DISJUNCTIVE TERM. One which is placed between two contraries, by the affirming of one of
which the other is taken away; it is usually expressed by the word "or."
DISLOYAL. Not true to; unfaithful; United
States v. Krafft, C.C.A.N.J., 249 F. 919, 925, L.R.A.
DISMISSAL. An order or judgment finally disposing of an action, suit, motion, etc., by sending
it out of court, though without a trial of the issues involved. Brackenridge v. State, 27 Tex.
App. 513, 11 S.W. 630, 4 L.R.A. 360. The term is
often used to indicate an adjudication on the
merits. Knbx v. Crump, 15 Ga.App. 697, 84 S.E.
169, 173; Butler v. McSweeney, 222 Mass. 5, 109
N.E. 653, 655. Although use of the term frequently signifies that it is not decision on merits.
Wight v. Wight, 272 Mass. 154, 172 N.E. 335, 336.
A release or discharge from employment. Taggart v. School Dist. No. 52, Carroll County, Mo.
App., 88 S.W.2d 447, 449; Gentner v. Board of Education of Los Angeles City High School Dist.,
219 Cal. 135, 25 P.2d 824.
DISMISSAL AGREED. A dismissal entered in
accordance with the agreement of the parties,
amounting to an adjudication of the matters in
dispute between them or to a renunciation by the
complainant of the claims asserted in his pleadings. Root v. Water Supply Co., 46 Kan. 183, 26 P.
398; Lindsay v. Allen, 112 Tenn. 637, 82 S.W. 171.
Dismissal agreed made in Supreme Court of Appeals upon
a writ of error to a judgment of the Circuit Court has no
reference to the controversy between the parties, but leaves
the judgment standing and purges error, releases error,
and bars another writ of error. Fletcher v. Parker, 53 W.
Va. 422, 44 S.E. 422.
DISJUNCTIM. Lat. In the civil law. Separately; severally. The opposite of con junctim, ( q. v.)
Inst. 2, 20, 8.
DISLOCATION. To put out of proper place. Gallagher v. Monroe, 222 Mich. 202, 192 N.W. 609.
DISMISS. To send away; to discharge; to cause
to be removed temporarily or permanently; to
relieve from duty. To dismiss an action or suit
is to send it out of court without any further
consideration or hearing. School District No. 1
of Jefferson County v. Parker, 82 Colo. 385, 260
P. 521, 522; People ex rel. Tims v. Bingham, Sup.,
166 N.Y.S. 28, 29; Nichols v. Sunderland, 77 Cal.
App. 627, 247 P. 614, 618.
DISMISSAL COMPENSATION. The payment of
a specific sum, made by employer to employee
for permanently terminating employment relationship primarily for reasons beyond employee's
control. Gayner v. The New Orleans, D.C.Cql.,
54 F.Supp. 25, 28.
DISMISSAL WITH PREJUDICE. An adjudication on the merits, and final disposition, barring
the right to bring or maintain an action on the
same claim. or cause. Pulley v. Chicago, R. I.
& P. Ry. Co., 122 Kan. 269, 251 P. 1100, 1101. It
is res judicata as to every matter litigated. Roden v. Roden, 29 Ariz. 549, 243 P. 413, 415. A judgment of dismissal and a judgment of nonsuit have
the same legal effect. Suess v. Motz, 220 Mo.App.
32, 285 S.W. 775, 776.
Temporary or permanent removal from office;
termination of a servant's employment. Nichols
v. Sunderland, 77 Cal.App. 627, 247 P. 614, 618.
555
DISMISSAL
DISMISSAL WITHOUT PREJUDICE. Dismissal,
as of a bill in equity, without prejudice to the
right of the complainant to sue again on the same
cause of action. The effect of the words "without prejudice" is to prevent the decree of dismissal from operating as . a bar to a subsequent suit.
Northrup v. Jay, 262 Mich. 463, 247 N.W. 717, 718.
DISMISSED. A judgment of "Dismissed," without qualifying words indicating a right to take
further proceedings, is presumed to be dismissed
on the merits; Durant v. Essex Co., 7 Wall. 107,
19 L.Ed. 154. But a bill "dismissed" on motion of
complainant does not bar a second suit; Ex parte
Loung June, D.C.N.Y., 160 F. 251, 259.
24 P.2d 601; one who abandons a child, People
v. Gross, 291 N.Y.S. 597, 602, 604, 161 Misc. 514;
giving false fire alarm, Piliszek v. Burlington
County Court of Special Sessions, 129 N.J.L. 604,
30 A.2d 578; spiritualist pastor telling fortune,
People v. Plaskett, 13 N.Y.S.2d 682, 683, 171 Misc.
563; vagrant, People v. Marciano, Mag.Ct., 17
N.Y.S.2d 722, 723.
DISPARAGARE. In old English- law. To bring
together those That are unequal, (dispares conferrea to connect in an indecorous and unworthy
manner; to connect in marriage those that are
unequal in blood and parentage.
DISPARAGATIO. In old English law. Disparagement. Hceredes maritentur absque disparagatione, heirs shall be married without disparagement. Magna Charta (9 Hen. III.) c. 6.
DISMISSED FOR WANT OF EQUITY. A phrase
used to indicate a decision on the merits, as distinguished from one based upon some formal defect. The dismissal may be because the averments of complainant's bill have been found untrue in fact, or because they are insufficient to
entitle complainant to the relief sought. Reinman v. Little Rock, 35 S.Ct. 511, 513, 237 U.S. 171,
59 L.Ed. 900.
DISPARAGATION. L. Fr. Disparagement;
the matching an heir, etc., in marriage, under
his or her degree or condition, or against the
rules of decency. Kelham.
DISPARAGE. To connect unequally; to match
unsuitably.
DISMORTGAGE. To redeem from mortgage.
DISORDER. Turbulent or riotous behavior; immoral or indecent conduct. The breach of the
public decorum and morality.
Usually, a slight, partial, and temporary physical ailment. Pacific Mut. Life Ins. Co. v. McCombs, 188 Ark. 52, 64 S.W.2d 333.
DISPARAGEMENT. In old English law. An
injury by union or comparison with some person
or thing of inferior rank or excellence.
Marriage without disparagement was marriage
to one of suitable rank and character. 2 Bl.Comm.
70; Co. Litt. 82b. Shutt v. Carloss, 36 N.C. 232.
Matter which is intended by its publisher to be
understood or which is reasonably understood to
cast doubt upon the existence or extent of another's property in land, chattels or intangible
things, or upon their quality. Restatement, Torts,
§ 629.
Of Goods
A statement about a competitor's goods which
is untrue or misleading and is made to influence
or tends to influence the public not to buy. Edwin L. Wiegand Co. v. Harold E. Trent Co., C.C.A.
Pa., 122 F.2d 920, 924.
DISORDERLY. Contrary to the rules of good
order and behavior; violative of the public peace
or good order; turbulent, riotous, or indecent.
DISORDERLY CONDUCT. A term of loose and
indefinite meaning (except as occasionally defined
in statutes), but signifying generally any behavior that is contrary to law, and more particularly such as tends to disturb the public peace or
decorum, scandalize the community, or shock the
public sense of morality. People v. Keeper of
State Reformatory, 176 N.Y. 465, 68 N.E. 884;
City of Mt. Sterling v. Holly, 108 Ky. 621, 57 S.W.
491.
DISORDERLY HOUSE. In criminal law. A
house the inmates of which behave so badly as to
become a nuisance to the neighborhood. It has a
wide meaning, and includes bawdy houses, common gaming houses, and places of a like character. 1 Bish. Crim.Law, § 1106. State v. Everhardt, 203 N.C. 610, 166 S.E. 738, 741; gaming,
Martin v. State, 62 Ga.App. 902, 10 S.E.2d 254,
255; prostitution, State v. Berman, 120 N.J.L.
381, 199 A. 776, 777.
DISORDERLY PERSONS. Such as are dangerous or hurtful to the public peace and welfare by
reason of their misconduct or vicious habits, and
are therefore amenable to police regulation. The
phrase is chiefly used in statutes, and the scope
of the term depends on local regulations. See 4
Bl. Comm. 169. One who violates peace and good
order of society, State v. Harlowe, 174 Wash. 227,
DISPARAGIUM. In old Scotch law. Inequality
in blood, honor, dignity, or otherwise. Skene de
Verb. Sign.
Disparata non debent jungi. Things unlike
ought not to be joined. Jenk. Cent. 24, Marg.
DISPARK. To dissolve a park. Cro. Car. 59.
To convert it into ordinary ground.
DISPATCH, or DESPATCH. A message, letter,
or order sent with speed on affairs of state; a
telegraphic message.
Celerity; expedition; speed. Stockman v. Boston & M. R. R., 117 Me. 35, 102 A. 560, 562.
In Maritime Law
Diligence, due activity, or proper speed in the
discharge of a cargo; the opposite of delay.
Sleeper v. Puig, 22 Fed.Cas. 321.
556
DISPOSE
Customary Dispatch
Such as accords with the rules, customs, and usages of
the port where the discharge is made.
Dispatch Money
Dispatch money, which arises purely from contract, is
a premium paid charterer by vessel for days saved that
may be used in completing voyage. The Driebergen, C.C.
A.Fla., 60 F.2d 367, 371.
Quick Dispatch
Speedy discharge of cargo without allowance for the
customs or rules of the port or for delay from the crowded
state of the harbor or wharf. Mott v. Frost, D.C.S.C., 47
F. 82; Bjorkquist v. Certain Steel Rail Crop Ends, D.C.
Md., 3 F. 717; Davis v. Wallace, 7 Fed.Cas. 182.
DISPAUPER. When a person, by reason of his
poverty, is admitted to sue in formei pauperis,
and afterwards, before the suit be ended, acquires any lands, or personal estate, or is guilty
of anything whereby he is liable to have this
privilege taken from him, then he loses the right
to sue in formd pauperis, and is said to be dispaupered. Wharton.
DISPEL. To .drive away by scattering, to clear
away, to banish, to dissipate. Karle v. Cincinnati St. Ry. Co., 69 Ohio App. 327, 43 N.E.2d 762,
767.
DISPENSARY. A "dispensary" is a place where
a drug is prepared or distributed. People v. Cohen, 94 Misc. 355, 157 N.Y.S. 591, 593.
This term, as used in shipping articles, means
"disrate," and does not import authority of the
master to discharge a second mate, notwithstanding a usage in the whaling trade never to disrate
an officer to a seaman. Potter v. Smith, 103 Mass.
68.
DISPLAY. An opening or unfolding, exhibition,
manifestation, ostentatious show, exhibition for
effect, parade. 20th Century Lites v. Goodman,
64 Cal.App.2d Supp., 938, 149 P.2d 88, 91.
As applied to printing, means a varying arrangement of lines, as by the use of unequal
lengths or different styles or sizes of type faces;
also matter thus printed. Display advertising
means advertising not under specific headings in
newspapers, magazines and trade papers. Rust v.
Missouri Dental Board, 348 Mo. 616, 155 S.W.2d 80,
85.
DISPONE. In Scotch law. To grant or convey.
A technical word essential to the conveyance of
heritable property, and for which no equivalent
is accepted, however clear may be the meaning
of the party. Paters. Comp.
DISPONO. Lat. To dispose of, grant, or convey.
Disponet, he grants or alienates. Jus disponendi,
the right of disposition, i. e., of transferring the
title to property.
Dispensatio est mall prohibiti provida relaxatio,
utilitate seu necessitate pensata; et est de jure
domino regi concessa, propter impossibilitatem
pmevidendi de omnibus particularibus. A dispensation is the provident relaxation of a malum prohibitum weighed from utility or necessity; and it
is conceded by law to the king on account of the
impossibility of foreknowledge concerning all particulars. 10 Coke, 88.
DISPOSABLE PORTION. That portion of a
man's property which he is free to dispose of by
will to beneficiaries other than his wife and children. By the ancient common law, this amounted
to one-third of his estate if he was survived by
both wife and children. 2 Bl. Comm. 492; Hopkins v. Wright, 17 Tex. 36. In the civil law (by
the Lex Falcidia) it amounted to three-fourths.
Mackeld. Rom. Law, §§ 708, 771.
Dispensatio est vulnus, quod vulnerat jus commune. A dispensation is a wound, which wounds
common law. Da y . Ir. K. B. 69.
DISPOSAL. Sale, pledge, giving away, use, consumption or any other disposition of a thing. C.
B. Norton Jewelry Co. v. Maddock, 115 Kan. 108,
222 P. 113, 114. To exercise control over; to direct or assign for a use; to pass over into the control of some one else; to alienate, bestow, or
part with. Popp v. Munger, 131 Okl. 282, 268 P.
1100, 1102.
DISPENSATION. An exemption from some
laws; a permission to do something forbidden;
an allowance to omit something commanded; the
canonistic name for a license. Sweeney v. Independent Order of Foresters, 190 App.Div. 787,
181 N.Y.S. 4, 5.
A relaxation of law for the benefit or advantage of an
individual. In the United States, no power exists, except
in the legislature, to dispense with law; and then it is not
so much a dispensation as a change of the law.
DISPENSE. Etymologically, "dispense" means
to weigh out, pay out, distribute, regulate, manage, control, etc., but when used with "with," it
has, among other meanings, that of "doing without," and "doing away with," being synonymous
with "abolish." United States v. Reynolds, D.C.
Mont., 244 F. 991.
DISPERSONARE. To scandalize or disparage.
Blount.
DISPLACE. To crowd out; to take the place of.
Ford v. Department of Water and Power of City
of Los Angeles, 4 Cal.App.2d 526, 41 P.2d 188, 189.
DISPOSE OF. To alienate or direct the ownership of property, as disposition by will. Used
also of the determination of suits. Carnagio v.
State, 106 Fla. 209, 143 So. 162. Called a word
of large extent.
To exercise finally, in any manner, one's power of control over; to pass into the control of
someone else; to alienate, relinquish, part with,
or get rid of; to put out of the way; to finish
with; to bargain away. Carpenter v. Lothringer,
224 Iowa 439, 275 N.W. 98, 103; Roe v. Burt, 66
Oki. 193, 168 P. 405, 406.
Often used in restricted sense of "sale" only,
or so restricted by context. Roby v. Herr, 194
Ky. 622, 240 S.W. 49, 51; Merchants' Nat. Bank
of Mandan v. First Nat. Bank, C.C.A.N.D., 238 F.
502, 507.
557
DISPOSING
DISPOSING CAPACITY OR MIND. These are
alternative or synonymous phrases in the law
of wills for "sound mind," and "testamentary, capacity" (q. v.). Lockhart v. Ferguson, 243 Mass.
226, 137 N.E. 355, 356.
DISPOSITION. In Scotch law. A deed of alienation by which a right to property is conveyed.
Bell.
An attitude; a willingness. In re Schaefer's
Estate, 207 Wis. 404, 241 N.W. 382, 386.
The parting with, alienation of, or giving up
property. Long v. Commissioner of Internal Revenue, C.C.A., 96 F.2d 270, 271; Ashwander v. Tennessee Valley Authority, Ala., 56 S.Ct. 466, 479,
297 U.S. 288, 80 L.Ed. 688. A destruction of property. Pioneer Cooperage Co. v. Commissioner of
Internal Revenue, C.C.A., 53 F.2d 43, 44.
DISPOSITIVE FACTS. Jural facts, or those acts
or events that create, modify or extinguish jural
relations. Kocourek, Jural Relations (2d Ed.) p.
17.
DISPUTE. A conflict or controve r sy; a conflict
of claims or rights; an assertion of a right, claim,
or demand on one side, met by contrary claims or
allegations on the other. Keith v. Levi, C.C.Mo.,
2 F. 745; Ft. Pitt Gas Co. v. Borough of Sewickley, 198 Pa. 201, 47 A. 957.
Matter in Dispute
The subject of litigation; the matter for which a suit
is brought and upon which issue is joined, and in relation
to which jurors are called and witnesses examined. Lee v.
Watson, 1 Wall. 339, 17 L.Ed. 557; Smith v. Adams, 130 U.
S. 167, 9 S.Ct. 566, 32 L.Ed. 985.
DISQUALIFY. To divest or deprive of qualifications; to incapacitate; to render ineligible or unfit; as, in speaking of the "disqualification" of a
judge by reason of his interest in the case, of a
juror by reason of his holding a fixed preconceived
opinion, or of a candidate for public office by reason of non-residence, lack of statutory age, previous commission of crime, etc. Carroll v. Green,
148 Ind. 362, 47 N.E. 223; Coats v. Benton, 80
Okla. 93, 194 P. 198, 200, 19 A.L.R. 1038.
DISRATE. In maritime law. To deprive a seaman or petty officer of his "rating" or rank; to
reduce to a lower rate or rank.
DISPOSSESS. To oust from land by legal process; to eject, to exclude from realty. Matthews
v. Deason, Tex.Civ.App., 200 S.W. 855, 856.
DISPOSSESS PROCEEDINGS. Summary process by a landlord to oust the tenant and regain
possession of the premises for nonpayment of
rent or other breach of the conditions of the lease.
Of local origin and colloquial use in New York.
DISPOSSESSION. Ouster; a wrong that carries
with it the amotion of possession. An act whereby the wrongdoer gets the actual occupation of
the land or hereditament. It includes abatement,
intrusion, disseisin, discontinuance, deforcement.
3 Bl. Comm. 167.
DISPROVE. To refute; to prove to be false or
erroneous; not necessarily by mere denial, but
by affirmative evidence to the contrary. Irsch v.
Irsch, 12 N.Y.Civ.Proc.R. 182.
DISPUNISHABLE. In old English law. Not answerable. Co. Litt. 27b, 53. 1 Steph. Comm. 245.
Not punishable. "This murder is dispunishable."
1 Leon. 270.
DISRATIONARE, or DIRATIONARE. To justify;
to clear one's self of a fault; to traverse an indictment; to disprove. Enc. Lond.
DISREGARD. To treat as unworthy of regard
or notice; to take no notice of; to leave out of
consideration; to ignore; to overlook; to fail to
observe. Cunningham v. Fredericks, 106 Conn.
665, 138 A. 790, 793.
DISREPAIR. The state of being in need of repair or restoration after decay or injury. Wyoming Coal Mining Co. v. Stanko, 22 Wyo. 110, 138
P. 182, 183.
DISREPUTE. Loss or want of reputation; ill
character; disesteem; discredit. U. S. v. Ault, D.
C.Wash., 263 F. 800, 810; U. S. v. Strong, D.C.
Wash., 263 F. 789, 796.
DISSASINA. In old Scotch law. Disseisin; dispossession. Skene.
DISPUTATIO FORI. In the civil law. Discussion or argument before a court. Mackeld. Rom.
Law, § 38; Dig. 1, 2, 2, 5.
DISPUTABLE PRESUMPTION. A species of evidence that may be accepted and acted upon when
there is no other evidence to uphold contention
for which it stands; and when evidence is introduced supporting such contention, evidence takes
place of presumption, and there is no necessity
for indulging in any presumption. Noble v. Key
System, 10 Cal.App.2d 132, 51 P.2d 887, 889.
A rule of law to be laid down by the court,
which shifts to the party against whom it operates the burden of evidence merely. City of
Montpelier v. Town of Calais, 114 Vt. 5, 39 A.2d
350, 356. See Presumptions.
DISSECTION. The act of cutting into pieces an
animal or vegetable for the purpose of ascertaining the structure and use of its parts. The anatomical examination of a dead body by cutting
into pieces or exscinding one or more parts or
organs. Wehle v. Accident Ass'n, 31 N.Y.S. 865, 11
Misc. 36; Rhodes v. Brandt, 21 Hun (N.Y.) 3.
Anatomy; the act of separating into constituent
parts for the purpose of critical examination.
DISSEISE. To dispossess; to deprive.
DISSEISEE. One who is wrongfully put out of
possession of his lands; one who is disseised.
DISSEISIN. Dispossession; a deprivation of possession; a privation of seisin; a usurpation ; of the
right of seisin and possession, and an exercise of
such powers and privileges of ownership as to
keep out or displace him to whom these right-
558
DISSOLUTION
fully belong. 3 Washb. Real Prop. 125; Sweeney
v. Dahl, 140 Me. 133, 34 A.2d 673, 675, 151 A.L.R.
356.
It is a wrongful putting out of him that is seised
of the freehold, not, as in abatement or intrusion,
a wrongful entry, where the possession was vacant, but an attack upon him who is in actual
possession, and turning him out. It is an ouster
from a freehold in deed, as abatement and intrusion are ousters in law. 3 Steph.Comm. 386.
When one man invades the possession of another, and by
force or surprise turns him out of the occupation of his
lands, this is termed a "disseisin," being a deprivation of
that actual seisin or corporal possession of the freehold
which the tenant before enjoyed. In other words, a disseisin is said . to be when one enters intending to usurp the
possession, and to oust another from the freehold. To constitute an entry a disseisin, there must be an ouster of
the freehold, either by taking the profits or by claiming the
inheritance. Brown.
According to the modern authorities, there seems to be
no legal difference between the words "seisin" and "possession," although there is a difference between the words
"disseisin" and "dispossession ;" the former meaning an
estate gained by wrong and injury, whereas the latter
may be by right or by wrong ; the former denoting an
ouster of the disseisee, or some act equivalent to it, whereas by the latter no such act is implied. Slater v. Rawson,
6 Metc. (Mass.) 439.
Equitable disseisin is where a person is wrongfully deprived of the equitable seisin of land, e. g.,
of the rents and profits. 2 Meriv. 171; 2 Jac. &
W. 166.
Disseisin by election is where a person alleges
or admits himself to be disseised when he has not
really been so.
Disseisinam satis fa,cit, qui uti non permittit possessorem, vel minus commode, licet omnino non
expellat. Co. Litt. 331. He makes disseisin
enough who does not permit the- possessor to enjoy, or makes his enjoyment less beneficial, although he does not expel him altogether.
DISSEISITRIX. A female disseisor; a disseisoress. Fleta, lib. 4, c. 12, § 4.
DISSEISITUS. One who has been disseised.
DISSEISOR. One who puts another out of the
possession of his lands wrongfully. A settled trespasser on the land of another. Flinn v. Blakeman, 254 Ky. 416, 71 S.W.2d 961, 968.
DISSEISORESS. A woman who unlawfully puts
another out of his land.
DISSEMBLE. To conceal by assuming some false
appearance. Darneal v. State, 14 Okl.Cr. 540, 174
P. 290, 292, 1 A.L.R. 638.
DISSENSUS. Lat. In the civil law. The mutual
agreement of the parties to a simple contract
obligation that it shall be dissolved or annulled ;
technically, an undoing of the consensus which
created the obligation. Mackeld. Rom. Law, §
541.
DISSENT. Contrariety of opinion; refusal to
agree with something already stated or adjudged
or to an act previously performed.
The term is most commonly used in American
law to denote the explicit disagreement of one or
more judges of a court with the decision passed
by the majority upon a case before them. In such
event, the non-concurring judge is reported as
"dissenting." Mere failure of a justice to vote is
not a dissent. Charles W. Sommer & Bro. v. Albert Lorsch & Co., 254 N.Y. 146, 172 N.E. 271, 272.
A dissent may or may not be accompanied by an
opinion.
Dissenting Opinion
The opinion in which a judge announces his dissent from
the conclusions held by the majority of the court, and expounds his own views.
In
Ecclesiastical
Law
A refusal to conform to the rites and ceremonies of the established church. 2 Burn, Eccl. Law
165.
DISSENTER. One who refuses to conform to the
rites and ceremonies of the established church;
a non-conformist. 2 Burn, Eccl. Law 165.
DISSENTERS. Protestant seceders from the established church of England. They are of many
denominations, principally Presbyterians, Independents, Methodists, and Baptists; but, as to
church government, the Baptists are Independents.
DISSENTIENTE. (Lat. dissenting.) Used with
the name or names of one or more judges, it indicates a dissenting opinion in a case. Nemine
dissentiente. No one dissenting; unanimous.
DISSIGNARE. In old law. To break open a seal.
Whishaw.
, Dissimilium dissimilis est ratio. Co. Litt. 191. Of
dissimilars the rule is dissimilar.
Dissimulatione tollitur injuria.
An injury is extinguished by the forgiveness or reconcilement of
the party injured. Ersk. Inst. 4, 4, 108.
DISSOLUTE. Loosed from restraint, unashamed,
lawless, loose in morals and conduct, recklessly
abandoned to sensual pleasures, profligate, wanton, lewd, debauched, thus, evidence that defendants danced in nude at a smoker authorized their
conviction as dissolute persons. People v. Scott,
113 Cal.App. 778, 296 P. 601, 603.
DISSOLUTION.
In Contracts
. The
dissolution of a contract is the cancellation
or abrogation of it by the parties themselves, with
the effect of annulling the binding force of the
agreement, and restoring each party to his original rights. In this sense it is frequently used in
the phrase "dissolution of a partnership." Williston v. Camp, 9 Mont. 88, 22 P. 501.
In Practice
The
act of rendering a legal proceeding null,
abrogating or revoking it; unloosing its constraining force; as when an injunction is dissolved by
the court. Jones v. Hill, 6 N.C. 131.
559.
DISSOLUTION
Of Corporations
The dissolution of a corporation is the termination of its existence as a body politic. This may
take place in several ways; as by act of the legislature, where that is constitutional; by surrender
or forfeiture of its charter; by expiration of its
charter by lapse of time; by proceedings for winding it up under the law; by loss of all its members or their reduction below the statutory limit.
New York Title & Mortgage Co. v. Friedman, 276
N.Y.S. 72, 153 Misc. 697; Bruun v. Katz Drug Co.,
351 Mo. 731, 173 S.W.2d 906, 909.
De Facto Dissolution
That which takes place when corporation, by reason of
insolvency or for other reason, suspends all operations and
goes into liquidation. Hidden v. Edwards, 313 Mo. 642, 285
S.W. 462, 468.
Of Marriage
The act of terminating a marriage; divorce;
but the term does not include annulment. Deihl
v. Jones, 170 Tenn. 217, 94 S.W.2d 47, 48.
DISSOLUTION OF PARLIAMENT. The crown
may dissolve parliament either in person or by
proclamation; the dissolution is usually by proclamation, after a prorogation. No parliament
may last for a longer period than seven years.
Septennial Act, 1 Geo. I. c. 38. Under 6 Anne, c.
37, upon a demise of the crown, parliament became ipso facto dissolved six months afterwards,
but under the Reform Act, 1867, its continuance
is now nowise affected by such demise. May, Parl.
Pr. (6th Ed.) 48. Brown.
DISSOLVE. To terminate; abrogate; cancel;
annul; disintegrate. To release or unloose the
binding force of anything. As to "dissolve a corporation," to "dissolve an injunction." See Dissolution.
DISSOLVING BOND. A bond given to obtain the
dissolution of a legal writ or process, particularly
an attachment or an injunction, and conditioned
to indemnify the opposite party or to abide the
judgment to be given. See Sanger v. Hibbard, 2
Ind. T. 547, 53 S.W. 330.
DISSUADE. In criminal law. To advise and procure a person not to do an act.
To dissuade a witness from giving evidence
against a person indicted is an indictable offense
at common law. Hawk. P. C. b. 1, c. 21, § 15.
People v. Hamm, 250 N.Y.S. 603, 605, 140 Misc. 335.
the manufacture of intoxicating liquors. Williams
v. State, 161 Ark. 383, 256 S.W. 354.
DISTILLED LIQUOR or DISTILLED SPIRITS.
A term which includes all potable alcoholic liquors obtained by the process of distillation (such
as whisky, brandy, rum, and gin) but excludes
fermented and malt liquors, such as wine and
beer. Sarlls v. U. S., 14 S.Ct. 720, 152 U.S. 570, 38
L.Ed. 556; Commonwealth v. Nickerson, 236 Mass.
281, 128 N.E. 273, 283, 10 A.L.R. 1568; Maresca v.
U. S., C.C.A.N.Y., 277 F. 727, 740.
DISTILLER. One who produces distilled spirits,
or who brews or makes mash, wort, or wash, fit
for distillation or for the production of spirits, or
who, by any process of evaporization, separates
alcoholic spirit from any fermented substance,
or who, making or keeping mash, wort, or wash,
has also in his possession or use a still. U. S. v.
Ridenour, D.C.Va., 119 F. 411; Motlow v. U. S., C.
C.A.Mo., 35 F.2d 90, 91.
DISTILLERY. The strict meaning of "distillery"
is a place or building where alcoholic liquors are
distilled or manufactured; not every building
where the process of distillation is used. U. S. v.
Blaisdell, 24 Fed.Cas. 1162; Atlantic Dock Co. v.
Leavitt, 54 N.Y. 35, 13 Am.Rep. 556.
DISTILLING APPARATUS. Under National Prohibition Act, tit. 2, § 25 (27 USCA § 39) "distilling
apparatus" is not limited to a completed still fully equipped and ready for operation, but may
cover a 15-gallon pot and coil of copper tubing or
worm, which, when connected by gooseneck, would
produce a completed still. Rossman v. U. S., C.
C.A.Ohio, 280 F. 950, 952.
DISTINCT. Clear to the senses or mind; easily
perceived or understood; plain; unmistakable.
Hill v. Norton, 74 W.Va. 428, 82 S.E. 363, 367, Ann.
Cas.1917D, 489.
Evidently not identical; observably or decidedly
different. Bayne v. Kansas City, Mo.App., 263 S.
W. 450, 451.
Distinguished by nature or station; not the
same; different in the place or the like; separate;
individual; that which is capable of being distinguished; actually divided or apart from other
things. Gavin v. Webb, Tex.Civ.App., 99 S.W.2d
372, 379.
DISTANCE. A straight line along a horizontal
plane from point to point and is measured from
the nearest point of one place to the nearest point
of another. Evans v. U. S., C.C.A.N.Y., 261 F. 902,
904.
It may however be a broken line and represented by country roads ork railroad track. State v.
Mostad, 34 N.D. 330, 158 I.W. 349, 350.
DISTINCTE ET APERTE. In old English practice. Distinctly and openly. Formal words in
writs of error, referring to the return required to
be made to them. Reg. Orig. 17.
DISTILL. To subject to a process of distillation,
i. e., vaporizing the more volatile parts of a substance and then condensing the vapor so formed.
In law, the term is chiefly used in connection with
Distinguenda sunt tempora. The
DISTINCTIVELY. Characteristically, or peculiarly, but not necessarily exclusively. Western Union Telegraph Co. v. Green, 153 Tenn. 522, 284 S.
W. 898, 899, 48 A.L.R. 313.
time is to be considered. 1 Cdke, 16a; Bloss v. Tobey, 2 Pick.
( Mass.) 327; Owens v. Missionary Society, 14 N.Y.
380, 393, 67 Am.Dec. 160.
560
DISTRESS
DISTRAINER, or DISTRAINOR. He who seizes
a distress.
Distinguenda sunt tempora; aliud est facere, aliud
perficere. Times must be distinguished; it is one
thing to do, another to perfect. 3 Leon. 243;
Branch. Princ.
DISTRAINT. Seizure; the act of distraining or
making a distress. Regional Agr. Credit Corp. v.
Griggs County, 73 N.D. 1, 10 N.W.2d 861, 866.
Distinguenda sunt tempora; distingue tempora
et concordabis leges. Times are to be distinguished; distinguish times, and you will harmonize
laws. 1 Coke, 24. A maxim applied to the construction of statutes.
DISTRESS. The taking a personal chattel out of
the possession of a wrong-doer into the custody
of the party injured, to procure a satisfaction for
a wrong committed; as for non-payment of rent,
or injury done by cattle. 3 Bl.Comm. 6, 7; Co.
Litt. 47. The taking of beasts or other personal
property by way of pledge, to enforce the performance of something due from the party distrained upon. 3 Bl.Comm. 231. Hall v. Marshall,
145 Or. 221, 27 P.2d 193. The taking of a defendant's goods, in order to compel an appearance in
court. 3 Bl.Comm. 280; 3 Steph.Comm. 361, 363.
The seizure of personal property to enforce payment of taxes, to be followed by its public sale if
the taxes are not voluntarily paid. Marshall v.
Wadsworth, 64 N.H. 386, 10 A. 685; also the thing
taken by distraining, that which is seized to procure satisfaction. And in old Scotch law, a pledge
taken by the sheriff from those attending fairs or
markets, to secure their good behavior, and returnable to them at the close of the fair or market
if they had been guilty of no wrong.
DISTINGUISH. To point out an essential difference; to prove a case cited as applicable, inapplicable.
DISTINGUISHING MARK. Any deliberate marking of ballot by voter that is not made in attempt
to indicate his choice of candidates and which is
also effective as mark by which his ballot may be
distinguished. Hanson v. Emanuel, 210 Minn. 271,
297 N.W. 749, 752, 753, 754.
DISTORT. To twist out of natural or regular
shape, to twist aside physically, to force or put out
of true posture, to twist, wrest, or deform. Grip
Nut Co. v. MacLean-Fogg Lock Nut Co., D.C.I11.,
34 F.2d 41, 42.
DISTRACTED PERSON. A term used in the statutes of Illinois and New Hampshire to express a
state of insanity. Snyder v. Snyder, 142 Ill. 60, 31
N.E. 303.
Distress infinite. One that has no bounds with
regard to its quantity, and may be repeated from
time to time, until the stubbornness of the party
is conquered. Such are distresses for fealty or
suit of court, and for compelling jurors to attend.
3 Bl.Comm. 231.
A power of attorney by which landlord delegates exercise of his right to his duly authorized
agent. In re Koizim, D.C.N.J., 52 F.Supp. 357, 358.
DISTRACTIO. Lat. In the civil law. A separation or division into parts; also an alienation or
sale. Sometimes applied to the act of a guardian
in appropriating the property of his ward.
DISTRACTIO BONORUM. The sale at retail of
the property of an insolvent estate, under the
management of a curator appointed in the interest
of the creditors, and for the purpose of realizing
as much as possible for the satisfaction of their
claim. Mackeld. Rom. Law, § 524.
DISTRACTIO PIGNORIS. The sale of a thing
pledged or hypothecated, by the creditor or
pledgee, to obtain satisfaction of his claim on the
debtor's failure to pay or redeem. Mackeld. Rom.
Law, § 348.
DISTRACTION RULE. If plaintiff's attention is
diverted from known danger by a sufficient cause,
under this rule the question of contributory negligence is for jury. Deane v. Johnston, Fla., 104
So.2d 3, 9.
DISTRAHERE. To sell; to draw apart; to dissolve a contract; to divorce. Calvin.
DISTRAIN. To take as a pledge property of another, and keep it until he performs his obligation
or until the property is replevied by the sheriff.
It was used to secure an appearance in court, payment of rent, performance of services, etc. 3 Bl.
Comm. 231; Also, any detention of personal property, whether lawful or unlawful, for any purpose.
Wolfe v. Montgomery, 41 S.D. 267, 170 N.W. 158.
Distress is now generally used.
Black's Law Dictionary Revised 4th Ed.-36
Distress warrant. A writ authorizing an officer
to make a distraint; particularly, a writ authorizing the levy of a distress on the chattels of a tenant for non-payment of rent. Commercial Credit
Co. of Baltimore v. Vine's, 98 N.J.Law, 376, 120 A.
417, 418.
Grand distress, writ of. A writ formerly issued
in the real action of quare impedit, when no appearance had been entered after the attachment;
it commanded the sheriff to distrain the defendant's lands and chattels in order to compel appearance. It is no longer used, 23 & 24 Viet. c.
126, § 26, having abolished the action of quare
impedit, and substituted for it the procedure in an
ordinary action. Wharton.
Second distress. A supplementary distress for
rent in arrear, allowed by law in some cases,
where the goods seized under the first distress are
not of sufficient value to satisfy the claim.
DISTRESS AND DANGER. The "distress" and
"danger" to which a ship needs to be exposed to
entitle its rescuer to salvage need not be actual
or immediate, or the danger imminent and absolute. It is sufficient if at the time the assistance
is rendered, the ship has encountered any damage
561
DISTRIBUTE
or misfortune which might possibly expose her to
destruction if the services were not rendered, or
if a vessel is in a situation of actual apprehension
though not of actual danger. The Urko Mendi,
D.C., 216 F. 427, 429.
DISTRIBUTE. To deal or divide out in proportion or in shares. Buchan v. Buchan, 177 N.Y.S.
176, 177, 108 Misc. 31; Foreman v. United States,
C.C.A., 255 F. 621, 623.
DISTRIBUTEE. An heir; a person entitled to
share in the distribution of an estate. This term
is admissible to denote one of the persons who
are entitled, under the statute of distributions, to
the personal estate of one who is dead intestate.
Allen v. Foth, 210 Ky. 343, 275 S.W. 804, 805.
DISTRIBUTION. In probate practice. The apportionment and division, under authority of a court,
of the remainder of the estate of an intestate,
after payment of the debts and charges, among
those who are legally entitled to share in the
same. Rogers v. Gillett, 56 Iowa, 266, 9 N.W. 204.
trative purposes. Briggs v. Stevens, 119 Or. 138,
248 P. 169; State ex rel. Schur v. Payne, 57 Nev.
286, 63 P.2d 921, 925.
The United States are divided into judicial districts, in each of which is established a district
court. They are also divided into election districts, collection districts, etc.
The circuit or territory within which a person
may be compelled to appear. Cowell. Circuit of
authority; province. Enc. Lond.
District attorney. The prosecuting officer of the
United States government in each of the federal
judicial districts. Also, under the state governments, the prosecuting officer who represents the
state in each of its judicial districts. In some
states, where the territory is divided, for judicial
purposes, into sections called by some other name
than "districts," the same officer is denominated
"county attorney" or "state's attorney." Hill County v. Sheppard, 142 Tex. 358, 178 S.W.2d 261, 263;
State v. Henry, 196 La. 217, 198 So. 910, 914.
District clerk. The clerk of a district court of
either a state or the United States.
Statute of Distributions
A law prescribing the manner of the distribution of the
estate of an intestate among his heirs or relatives. Such
statutes exist in all the states.
In general. The giving out or division among
a number, sharing or parceling out, allotting, dispensing, apportioning. People v. Dime Sa y . Bank,
350 Ill. 503, 183 N.E. 604, 608.
DISTRIBUTIVE. That which exercises or accomplishes distribution; apportions, divides, and assigns in separate items or shares.
DISTRIBUTIVE FINDING OF THE ISSUE. The
jury are bound to give their verdict for that party who, upon the evidence, appears to them to
have succeeded in establishing his side of the issue. But there are cases in which an issue may
be found distributively, i. e., in part for plaintiff,
and in part for defendant. Thus, in an action for
goods sold and work done, if the defendant pleaded that he never was indebted, on which issue was
joined, a verdict might be found for the plaintiff as to the goods, and for the defendant as to
the work. Steph. Pl. (7th Ed.) 77d.
DISTRIBUTIVE JUSTICE. See Justice.
DISTRIBUTIVE SHARE. The share or portion
which a given heir receives on the legal distribution of an intestate estate; Van Buren v. Plainfield Trust Co., 130 N.J.Eq. 244, 22 A.2d 189, 191,
or from a dissolved partnership. Helvering v.
Enright's Estate, 61 S.Ct. 777, 781, 312 U.S. 636,
85 L.Ed. 1093. Sometimes, by an extension of
meaning, the share or portion assigned to a given
person on the distribution of any estate or fund,
as, under an assignment for creditors or under
insolvency proceedings.
DISTRICT. One of the portions into which an
entire state or country, county, municipality or
other political subdivision or geographical territory is divided, for judicial, political, or adminis-
District courts. Courts of the United States,
each having territorial jurisdiction over a district,
which may include % whole state or only part of
it. Each of these courts is presided over by one
judge, who must reside within the district. These
courts have original jurisdiction over all admiralty and maritime causes and all proceedings in
bankruptcy, and over all penal and criminal matters cognizable under the laws of the United
States, exclusive jurisdiction over which is not
vested either in the supreme or circuit courts.
Also inferior courts in Colorado, Idaho, Iowa, Kansas, Louisiana, Minnnesota, Montana, Nebraska,
Nevada, New Jersey, New Mexico, North Dakota,
Ohio, Oklahoma, Texas, Utah, and Wyoming, are
also called "district courts." Their jurisdiction is
for the most part similar to that of county courts
(q. v.).
District judge. The judge of a United States
district court; also, in some states, the judge of
a district court of the state.
District parishes. Ecclesiastical divisions of parishes in England, for all purposes of worship, and
for the celebration of marriages, christenings,
churchings, and burials, formed at the instance of
the queen's commissioners for building new
churches. See 3 Steph.Comm. 744.
District registry. By the English judicature
act, 1873, § 60, it is provided that to facilitate proceedings in country districts the crown may, from
time to time, by order in council, create district
registries, and appoint district registrars for the
purpose of issuing writs of summons, and for
other purposes. Documents sealed in any such
district registry shall be received in evidence
without further proof, (section 61;) and the district registrars may administer oaths or do other
things as provided by rules or a special order of
the court, (section 62.) Power, however, is given
562
DISTURBANCE
to a judge to remove proceedings from a district
registry to the office of the high court. Section
65. By order in council of 12th of August, 1875,
a number of district registries have been established in the places mentioned in that order; and
the prothonotaries in Liverpool, Manchester, and
Preston, the district registrar of the court of admiralty at Liverpool, and the county court registrars in the other places named, have been appointed district registrars. Wharton.
As to "Fire," "Judicial," "Land," "Levee," "Mineral," "Mining," "Road," "School," and "Taxing,"
districts, see those titles.
DISTRICT MESSENGER SERVICE. The service
is not that of a common carrier, but the furnishing of messengers to be used by the employer in
any way in which they could be properly employed, in the course of which the messenger becomes for the time the servant of the employer
and the company is not liable for his dishonesty
in the ordinary course of his employment unless
there was failure to use proper care in his selection; Haskell v. Messenger Co., 190 Mass. 189, 76
N.E. 215, 2 L.R.A.,N.S., 1091, 112 Am.St.Rep. 324,
5 Ann.Cas. 796.
DISTRICT OF COLUMBIA. A territory situated
on the Potomac river, and being the seat of government of the United States. It was originally
ten miles square, and was composed of portions
of Maryland and Virginia ceded by those states to
the United States; but in 1846 the tract coming
from Virginia was retroceded. Legally it is neither a state nor a territory, but is made subject, by
the constitution, to the exclusive jurisdiction of
congress.
DISTRICTIO. Lat. A distress; a distraint.
Cowell.
DISTRINGAS. In English practice. A writ directed to the sheriff of the county in which a defendant resides, or has any goods or chattels, commanding him to distrain upon the goods and chattels of the defendant for forty shillings, in order
to compel his appearance. 3 Steph.Comm. 567.
This writ issues in cases where it is found impracticable to get at the defendant personally,
so as to serve a summons upon him. Id.
A distringas is also used in equity, as the first
process to compel the appearance of a corporation
aggregate. St. 11 Geo. IV. and 1 Wm. IV. c. 36.
A form of execution in the actions of detinue
and assise of nuisance. Brooke, Abr. pl. 26; Barnet v. Ihrie, 1 Rawle (Pa.) 44.
DISTRINGAS JURATORES. A writ commanding
the sheriff to have the bodies of the jurors, or to
distrain them by their lands and goods, that they
may appear upon the day appointed. 3 Bl.Comm.
354. It issues at the same time with the venire,
though in theory afterwards, founded on the supposed neglect of the juror to attend. 3 Steph.
Comm. 590.
DISTRINGAS NUPER VICE COMITEM. A writ
to distrain the goods of one who lately filled the
office of sheriff, to compel him to do some act
which he ought to have done before leaving the
office; as to bring in the body of a defendant, or
to sell goods attached under a ft. fa.
DISTRINGAS VICE COMITEM. A writ of distringas, directed to the coroner, may be issued
against a sheriff if he neglects to execute a writ
of venditioni exponas. Arch. Pr. 584.
DISTRINGERE. In feudal and* old English law.
To distrain; to coerce or compel. Spelman; Calvin.
DISTURB. To throw into disorder; to move from
a state of rest or regular order; to interrupt a
settled state of, to throw out of course or order.
Stinchcomb v. Oklahoma City, 81 Old. 250, 198 P.
508, 510.
DISTURBANCE. Any act causing annoyance,
disquiet, agitation, or derangement to another, or
interrupting his peace, or interfering with him in
the pursuit of a lawful and appropriate occupation or contrary to the usages of a sort of meeting
and class of persons assembled that interferes
with its due progress or irritates the assembly in
whole or in part. State v. Mancini, 91 Vt. 507, 101
A. 581, 583.
A wrong done to an incorporeal hereditament
by hindering or disquieting the owner in the enjoyment of it. Finch, 187; 3 Bl. Comm.
DISTURBANCE OF COMMON. The doing any
act by which the right of another to his common
is incommoded or diminished; as where one who
has no right of common puts his cattle into the
land, or where one who has a right of common
puts in cattle which are not commonable, or surcharges the common; or where the owner of the
land, or other person, incloses or otherwise obstructs it. 3 Bl. Comm. 237-241; 3 Steph. Comm.
511, 512.
DISTURBANCE OF FRANCHISE. The disturbing or incommoding a man in the lawful exercise
of his franchise, whereby the profits arising from
it are diminished. 3 Bl. Comm. 236; 3 Steph.
Comm. 510; 2 Crabb, Real Prop. § 2472a.
DISTURBANCE OF PATRONAGE. The hindrance or obstruction of a patron from presenting
his clerk to a benefice. 3 Bl. Comm. 242; 3 Steph.
Comm. 514.
DISTURBANCE OF PUBLIC OR RELIGIOUS
WORSHIP. Any acts or conduct which interfere
with the peace and good order of an assembly of
persons lawfully met together for religious exercises. Minter v. State, 104 Ga. 743, 30 S.E. 989,
991; Stafford v. State, 154 Ala. 71, 45 So. 673, 674.
DISTURBANCE OF PEACE. Interruption of the
peace, quiet, and good order of a neighborhood or
community, particularly by unnecessary and distracting noises. Platt v. Greenwood, 69 P.2d 1032,
1034, 50 Ariz. 158; Levert v. Katz & Besthoff, 164
La. 1094, 115 So. 281, 283.
563
DISTURBANCE
DISTURBANCE OF TENURE. In the law of
tenure, disturbance is where a stranger, by menaces, force, persuasion, or otherwise, causes a
tenant to leave his tenancy; this disturbance of
tenure is an injury to the lord for which an action
will lie. 3 Steph. Comm. 414.
DISTURBANCE OF WAYS. This happens where
a person who has a right of way over another's
ground by grant or prescription is obstructed by
inclosures or other obstacles, or by plowing
across it , by which means he cannot enjoy his
right of way, or at least in so commodious a manner as he might have done. 3 Bl. Comm. 241.
DISTURBER. If a bishop refuse or neglect to
examine or admit a patron's clerk, without reason
assigned or notice given, he is styled a "disturber" by the law, and shall not have any title to
present by lapse; for no man shall take advantage of his own wrong. 2 Bl. Comm. 278.
DITCH. The words "ditch" and "drain" have no
technical or exact meaning. They both may mean
a hollow space in the ground, natural or artificial,
where water is collected or passes off; also, entire irrigation project. Dickey v. Bullock, 28 Wyo.
265, 202 P. 1104, 1105.
DITCHING, DIKING, or TILING. Every kind of
work necessary to convert parts of arid lands,
particularly sagebrush lands, into farms and orchards,—the word "diking" as applied to arid regions implying a leveling of the land, and the
term "clearing land" as applied to arid regions
covered with sagebrush meaning not only the
removal or the destruction of the brush but
the plowing or breaking up of the roots as well.
Craig v. Crystal Realty Co., 89 Or. 25, 173 P. 3227
324.
DITES OUSTER. L. Fr. Say over. The form
of awarding a respondeas ouster, in the Year
Books, M. 6 Edw. III. 49.
Co., 97 Utah 56, 89 P.2d 474, 475; or to unauthorized or illegal use of corporate funds; Farracy v.
Security Nat. Bank of Dallas, Tex., 4 S.W.2d 331,
3354 Hornstein v. Paramount Pictures, 37 N.Y.S.
2d 404, 407; of estate or trust funds; Bray Bros. v.
Marine Trust Co. of Buffalo, 35 N.Y.S.2d 356; or
of alcohol. U. S. v. Hartford Ace. & Indem. Co.,
D.C.Md., 15 F.Supp. 791, 801.
DIVERSITE DES COURTS. A treatise on courts
and their jurisdiction, written in French in the
reign of Edward III. as is supposed, and by some
attributed to Fitzherbert. It was first printed in
1525, and again in 1534. Crabb, Eng. Law, 330,
483.
DIVERSITY. In criminal pleading. A plea by
the prisoner in bar of execution, alleging that he
is not the same who was attainted, upon which a
jury is immediately impaneled to try the collateral issue thus raised, viz., the identity of the person, and not whether he is guilty or innocent, for
that has been already decided. 4 Bl. Comm. 396.
DIVERSITY OF CITIZENSHIP. A phrase used
with reference to the jurisdiction of the federal
courts, which, under U.S.Const. art. 3, § 2, extends
to cases between citizens of different states, designating the condition existing when the party on
one side of a lawsuit is a citizen of one state, and
the party on the other side is a citizen of another
state. When this is the basis of jurisdiction, all
the persons on one side of the controversy must
be citizens of different states from all the persons
on the other side. Albert Pick & Co. v. CassPutnam Hotel Co., D.C.Mich., 41 F.2d 74; Soptich
v. St. Joseph Nat. Croation Beneficiary Ass'n, D.
C.Kan., 34 F.2d 566.
DIVERSO INTUITU. Lat. With a different view,
purpose, or design; in a different view or point of
view; by a different course or process. 1 W. Bl.
89; 4 Kent Comm. 211, note.
DITTAY. In Scotch law. A technical term in civil law, signifying the matter of charge or ground
of indictment against a person accused of crime.
Taking up dittay is obtaining informations and
presentments of crime in order to trial. Skene,
de Verb. Sign.; Bell.
DIVERSORIUM. In old English law. A lodging
or inn. Townsh. Pl. 38.
DIVERGE. To extend from a common point in
different directions. Daylight Inv. Co. v. St. Louis
Merchants' Bridge Terminal Ry. Co., Mo.Sup.,
176 S.W. 7, 8.
DIVES. In the practice of the English chancery
division, "dives costs" are costs on the ordinary
scale, as opposed to the costs formerly allowed
to a successful pauper suing or defending in forma pauperis, which consisted only of his costs
out of pocket. Daniell, Ch. Pr. 43.
DIVERS. Various, several, sundry; a collective
term grouping a number of unspecified persons,
objects, or acts. Harris v. Zanone, 93 Cal. 59, 28
P. 845; Hilton Bridge Const. Co. v. Foster, 57 N.Y.
S. 140, 141, 26 Misc. 338.
DIVERSION. A turning aside or altering the
natural course of a thing. The term is chiefly
applied to the unauthorized changing the course
of a water course to the prejudice of a lower proprietor, Archer v. City of Los Angeles, 19 Ca1.2d
19, 119 P.2d 1, 5; Syret v. Tropic & East Fork Irr.
DIVERT. To turn aside; to turn out of the way;
to alter the course of things. Usually applied
to water-courses. Ang. Water-Courses, § 97 et
seq. Sometimes to roads. 8 East, 394.
DIVEST. Equivalent to devest, (q. v.).
DIVESTITIVE FACT. Any act or event that extinguishes or modifies a jural relation. Kocourek,
Jural Relations (2d ed.) 17.
DIVIDE. To cut into parts, disunite, separate,
keep apart. The term is synonymous with distribute. Watters v. First Nat. Bank, 233 Ala. 2275
171 So. 280, 288.
564
DIVINE
s
cum radix et vertex imperil in
Divide et impers,
obedientium consensu rata sunt. 4 Inst. 35. Divide and govern, since the foundation and crown
of empire are established in the consent of the
obedient.
DIVIDEND. A fund to be divided. The share allotted to each of several persons entitled to share
in a division of profits or property. Thus, dividend may denote a fund set apart by a corporation out of its profits, to be apportioned among the
shareholders, or the proportional amount falling
to each. Hadley v. Commissioner of Internal
Revenue, 36 F.2d 543, 544, 59 App.D.C. 139; Penington v. Commonwealth Hotel Const. Corp., 17
Del.Ch. 394, 155 A. 514, 517, 75 A.L.R. 1136; Lewis
v. O'Malley, D.C.Neb., 49 F.Supp. 173, 179. In
bankruptcy or insolvency practice, a dividend is a
proportional payment to the creditors out of the
insolvent estate. United States Fidelity & Guarantee Co. v. Sweeney, C.C.A.Mo., 80 F.2d 235, 241.
So-called dividend paid by life insurer is not
in fact a . "dividend" but is the excess payment of
premiums over actual cost. Scholem v. Prudential Ins. Co. of America, 15 N.Y.S.2d 947, 948, 172
Misc. 664.
"Dividends," common or preferred, are what shareholder
earns from property without liability in case dividends are
not paid. Commonwealth v. Philadelphia Rapid Transit
Co., 287 Pa. 190, 134 A. 455, 458.
Cumulative Dividend
A dividend, usually preferred, which if not
earned or paid, pursuant to agreement must be
paid at some subsequent date. Lockwood v. General Abrasive Co., 205 N.Y.S. 511, 513, 210 App.Div.
141.
Dividend Addition
Something added to the policy in the form of
paid-up insurance, and does not mean unapportioned assets or surplus. State Life Ins. Co. of
Indianapolis v. McNeese, 106 Ind.App. 378, 19
N.E.2d 854, 857. The term does not refer to dividends added directly to the loan value. Anderson v. Liberty Life Ins. Co. of Topeka, 149 Kan.
447, 87 P.2d 499, 502.
Ex Dividend
A phrase used by stock brokers, meaning that
a sale of corporate stock does not carry with it
the seller's right to receive his proportionate
share of a dividend already declared and shortly
payable.
Extraordinary Dividends
See Extraordinary Dividends.
Liquidation Dividend
See Liquidation Dividend.
Preferred Dividend
One paid on the preferred stock of a corporation; a dividend paid to one class of shareholders in priority to that paid to another. Jefferson
Banking Co. v. Trustees of Martin Institute, 146
Ga. 383, 91 S.E. 463, 468.
Scrip Dividend
One paid in scrip, or in certificates of the ownership of a corresponding amount of capital stock
of the cotnpany thereafter to be issued. Bailey
v. Railroad Co., 22 Wall. 604, 22 L.Ed. 840.
Stock Dividend
One paid in stock, that is, not in money, but
in a proportional number of shares of the capital stock of the company, which is ordinarily increased for this purpose to a corresponding extent. Thomas v. Gregg, 78 Md. 545, 28 A. 565, 44
Am.St.Rep. 310. A stock dividend is not in the
ordinary sense a dividend, which is a cash distribution to stockholders .of profits on their investments, but rather it is an increase in the number
of shares declared out of profits, the increased
number representing exactly the same property
as was represented by the smaller number of
shares. Booth v. Gross, Kelley & Co., 30 N.M.
465, 238 P. 829, 831, 41 A.L.R. 868. It is_ really
nothing more than a process in corporation bookkeeping. Hayes v. St. Louis Union Trust Co.,
Mo.Sup., 298 S.W. 91, 98.
In Old English Law
The term denotes one part of an indenture,
(q. v.).
DIVIDENDA. In old records. An indenture; one
counterpart of an indenture.
DIVINARE. Lat. To divine; to conjecture or
guess; to foretell. Divinatio, a conjecturing or
guessing.
Divinatio, non interpretatio est, quw omnino recedit a litera. That is guessing, not interpretation,
which altogether departs from the letter. Bac.
Max. 18, (in reg. 3,) citing Yearb. 3 Hen. VI. 20.
pIVINE LAWS. Those ascribed to God. Borden
v. State, 11 Ark. 527, 44 Am.Dec. 217.
DIVINE RIGHT OF KINGS. The right of a king
to rule as posited by the patriarchal theory of
government, especially under the doctrine that no
misconduct and no dispossession can forfeit the
right of a monarch or his heirs to the throne, and
to the obedience of the people. Webster, Dict.
This theory "was in its origin directed, not against
popular liberty, but against papal and ecclesiastical claims to supremacy in temporal as well as
spiritual affairs." Figgis, "The Theory of the
Divine Right of Kings."
DIVINE SERVICE. Divine service was the name
of a feudal tenure, by which the tenants were
obliged to do some special divine services in certain; as to sing so many masses, to distribute
such a sum in alms, and the like. (2 Bl. Comm.
102; 1 Steph. Comm. 227.) It differed from tenure
in frankalmoign, in this: that, in case of the
tenure by divine service, the lord of whom the
lands were holden might distrain for its nonperformance, whereas, in case of frankalmoign, the
lord has no remedy by distraint for neglect of the
565
DIVINITY
service, but merely a right of complaint to the
visitor to correct it. Mozley & Whitley.
DIVINITY STUDENT. A student in a seminary
in preparation for ministry, priesthood or rabbinate. United States ex rel. Rubin v. Magruder,
D.C.R.I., 55 F.Supp. 947, 955.
DIVISA.
In old English law. A device, award, or
decree; also a devise; also bounds or limits of
division of a parish or farm, etc. Cowell. Also
a court held on the boundary, in order to settle
disputes of the tenants.
Divisibilis est semper divisibilis. A thing divisible may be forever divided.
DIVISIBLE. That which is susceptible of being
divided.
DIVISIBLE CONTRACT. One which is in its nature and purposes susceptible of division and apportionment; having two or more parts in respect
to matters and things contemplated and embraced
by it, not necessarily dependent on each other nor
intended by the parties so to be. Horseman v.
Horseman, 43 Or. 83, 72 P. 698; Stavisky v. General Footwear Co., City Ct.N.Y., 185 N.Y.S. 760,
761.
DIVISIBLE OBLIGATION. See Obligation.
DIVISIBLE OFFENSE. One that includes one
or more offenses of lower grade, e. g., murder
includes assault, battery, assault with intent to
kill, and other offenses. Williams v. State, 20
Ala.App. 604, 104 So. 280, 281.
DIVISIM. In old English law. Severally; separately. Bract. fol. 47.
DIVISION. In English law. One of the smaller
subdivisions of a county. Used in Lincolnshire
as synonymous with "riding" in Yorkshire.
The separation of members of a legislative
body to take a vote. An operating section of a
railroad. Burton v. Oregon-Washington R. &
Na y . Co., 148 Or. 648, 38 P.2d 72. A separation
of an administrative body or court for the conducting of the business thereof. Foss v. Commissioner of Internal Revenue, C.C.A. 1, 75 F.2d
326, 329.
DIVISION OF OPINION. In the practice of appellate courts, this term denotes such a disagreement among the judges that there is not a majority in favor of any one view, and hence no decision can be rendered on the case. But it sometimes also denotes a division into two classes, one
of which may comprise a majority of the judges;
as when we speak of a decision having proceeded
from a "divided court."
DIVISIONAL COURTS.
Courts in England, consisting of two or (in special cases) more judges
of the high court of justice, sitting to transact
certain kinds of business which cannot be disposed
of by one judge.
DIVISUM IMPERIUM. Lat. A divided jurisdiction. Applied, e. g., to the jurisdiction of courts
of common law and equity over the same subject.
1 Kent, Comm. 366; 4 Steph. Comm. 9.
DIVORCE. The legal separation of man and wife,
effected, for cause, by the judgment, of a court,
and either totally dissolving the marriage relation, or suspending its effects so far as concerns
the cohabitation of the parties. Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794.
Sometimes it includes "annulment." Millar v.
Millar, 175 Cal. 797, 167 P. 394, 398, L.R.A. 1918B,
415, Ann.Cas.1918E, 184.
The dissolution Is termed "divorce from the bond of
matrimony," or, in the Latin form of the expression, "a
vinculo matrimonii;" the suspension, "divorce from bed
and board," "a mensa et thoro." The former divorce puts
an end to the marriage ; the latter leaves it in full force.
2 Bish.Mar. & Div. § 225.
The term "divorce" Is now applied, in England, both to
decrees of nullity and decrees of dissolution of marriage,
while in America it is ordinarily used only in cases of
divorce a mensa or a vinculo, a decree of nullity of marriage being granted for the causes for which a divorce a
vinculo was formerly obtainable in England.
Divorce a mensa et thoro. A divorce from
table and bed, or from bed and board. A partial
or qualified divorce, by which the parties are
separated and forbidden to live or cohabit together, without affecting the marriage itself. 1
Bl. Comm. 440; 3 Bl. Comm. 94; 2 Steph. Comm.
311; 2 Bish. Mar. & Div. § 225; Fisher v. Harrison, 165 Va. 323, 182 S.E. 543, 544, 104 A.L.R. 102.
Divorce a vinculo matrimonii. A divorce from
the bond of marriage. A total divorce of husband
and wife, dissolving the marriage tie, and releasing the parties wholly from their matrimonial
obligations. 1 Bl. Comm. 440; 2 Steph. Comm.
310, 311; 2 Bish. Mar. & Div. § 225; De Roche v.
De Roche, 12 N.D. 17, 94 N.W. 770.
Divorce suit. A "divorce suit" • is a civil proceeding founded on a matrimonial wrong, wherein the married parties are plaintiff and defendant, and the government, or public, occupies,
without being mentioned in the pleadings, the
position of a third party, resulting in a triangle
and otherwise sui generis action of tort. Gallemore v. Gallemore, 94 Fla. 516, 114 So. 371, 372.
Foreign divorce. A divorce obtained out of the
state or country where the marriage was solemnized. 2 Kent, Comm. 106, et seq.
Limited divorce. A divorce from bed and board;
or a judicial separation of husband and wife not
dissolving the marriage tie. Yost v. Yost, 143
Neb. 80, 8 N.W.2d 686.
DIVORTIUM DICITUR A DIVERTENDO, QUIA
vir divertitur ab uxore. Co. Litt. 235. Divorce is called from divertendo, because a man is
diverted from his wife.
566
DOCKET
DIVULGE. To disclose or make known, as to
divulge a telephone message. United States v.
Gruber, C.C.A.N.Y., 123 F.2d 307, 309.
DIXIkME. Fr. Tenth; the tenth part. Ord.Mar.
liv. 1, tit. 1, art. 9.
In Old French Law
An income tax payable to the crown. Steph.
Lect. 359.
DO. Lat. I give. The ancient and aptest word
of feoffment and of gift. 2 Bl. Comm. 310, 316;
Co. Litt. 9.
DO, DICO, ADDICO. Lat. I give, I say, I adjudge. Three words used in the Roman law, to
express the extent of the civil jurisdiction of
the pr ae tor. Do denoted that he gave or granted
actions, exceptions, and judices; dico, that he
pronounced judgment; addico, that he adjudged
the controverted property, or the goods of the
debtor, etc., to the plaintiff. Mackeld. Rom. Law,
§ 39.
DO, LEGO. Lat. I give, I bequeath; or I give
and bequeath. The formal words of making a
bequest or legacy, in the Roman law. Titio et
Seio hominem Stichum do, lego, I give and bequeath to Titius and Seius my man Stichus. Inst.
2, 20, 8, 30, 31. The expression is literally retained in modern wills.
DO UT DES. Lat. I give that you may give;
give [you] that you may give [me.] A formula
in the civil law, constituting a general division
under which those contracts (termed "innominate") were classed in which something was
given by one party as a consideration for something given by the other. Dig. 19, 4; Id. 19, 5, 5;
2 Bl. Comm. 444.
DO UT FACIAS. Lat. I give that you may do;
I give [you] that you may do or make [for me.]
A formula in the civil law, under which those
contracts were classed in which one party gave
or agreed to give money, in consideration the
other party did or performed certain work. Dig.
19, 5, 5; 2 Bl. Comm. 444.
In this and the foregoing phrase, the conjunction "ut" is
not to be taken as the technical means of expressing a
consideration. In the Roman usage, this word imported
a modus, that is, a qualification; while a consideration
(causa) was more aptly expressed by the word "quia."
DOCIMASIA PULMONUM. In medical jurisprudence. The hydrostatic test used chiefly in
cases of alleged infanticide to determine whether
the child was born alive or dead. See Hydrostatic
Test.
DOCK, v. To curtail or diminish, as to dock an
entail.
DOCK, n. The cage or inclosed space in a criminal court where prisoners stand when brought
in for trial.
The space, in a river or harbor, inclosed between two wharves. City of Boston v. Lecraw, 17
How. 434, 15 L.Ed. 118.
•
A slip or waterway extending between two
piers or projecting wharfs for the reception of
ships, sometimes including the piers themselves.
Wescott v. American Creosoting Co., 97 A. 493,
494, 86 N.J.Eq. 104.
"A dock is an artificial basin in connection with a harbor, used for the reception of vessels in the taking on or
discharging of their cargoes, and provided with gates for
preventing the rise and fall of the waters occasioned by
the tides, and keeping a uniform level within the docks."
Perry v. Haines, 24 S.Ct. 8, 191 U.S. 17, 48 L.Ed. 73.
DOCK-MASTER. An officer invested with powers within the docks, and a certain distance therefrom, to direct the mooring and removing of
ships, so as to prevent obstruction to the dock
entrances. Mozley & Whiteley.
DOCK WARRANT. In English law. A warrant
given by dock-owners to. the owner of merchandise imported and warehoused on the dock, upon
the faith of the bills of lading, as a recogniti6n
of his title to the goods. It is a negotiable instrument. Pull. Port of London, p. 375.
DOCKAGE. A charge against vessels for the
privilege of mooring to the wharves or in the
slips. People v. Roberts, 92 Cal. 659, 28 Pac. 689.
A pecuniary compensation for the use of a dock
while a vessel is undergoing repairs. Ives v.
The Buckeye State, 13 Fed.Cas. 184; The Indomable, C.C.A.N.Y., 279 F. 827, 831; Wilkens v.
Trafikaktiebolaget Grangesberg Okelosund, C.C.
A.Tex., 10 F.2d 129, 131.
DOCKET, v. To abstract and enter in a book. 3
Bl. Comm. 397, 398. To make a brief entry of any
proceeding in a court of justice in the docket.
DOCKET, n. A minute, abstract, or brief entry;
or the book containing such entries. A small
piece of paper or parchment having the effect of
a larger. Blount. A file. Touchstone Live Stock
Co. v. Easters, 172 Ga. 454, 157 S.E. 683, 684.
In Practice
A formal record, entered in brief, of the proceedings in a court of justice. Brinn v. Wooding,
298 N.Y.S. 971, 975, 164 Misc. 850.
A book containing an entry in brief of all the
i mportant acts done in court in the conduct of
each case, from its inception to its conclusion.
The name of "docket" or "trial docket" is
sometimes given to the list or calendar of causes
set to be tried at a specified term, prepared by
the clerks for the use of the court and bar.
Kinds of Dockets
An appearance docket is one in which the appearances in actions are entered, containing also
a brief abstract of the successive steps in each
action. A bar docket is an unofficial paper consisting of a transcript of the docket for a term
of court, printed for distribution to members of
the bar. Gifford v. Cole, 57 Iowa, 272, 10 N.W.
672. An execution docket is a list of the executions sued out or pending in the sheriff's office.
A judgment docket is a list or docket of the judg-
567
DOCKET
ments entered in a given court, methodically kept
by the clerk or other proper officer, open to public inspection, and intended to afford official notice
to interested parties of the existence or lien of
judgments.
In General
Docket fee. An attorney's fee, of a fixed sum,
chargeable with or as a part of the costs of the
action, for the attorney of the successful party;
so called because chargeable on the docket, not as
a fee for making docket entries. Bank v. Neill,
13 Mont. 377, 34 Pac. 180; Goodyear v. Sawyer,
C.C., 17 Fed. 2.
engraved; to photographs and pictures: to mans
or plans. The inscription may be of stone or
gems, or on wood, as well as on paper or parchment. 1 Whart. Ev. § 614; Johnson Steel StreetRail Co. v. North Branch Steel Co., C.C.Pa., 48 F.
194; Arnold v. Water Co., 18 R.I. 189, 26 A. 55,
19 L.R.A. 602. It has various statutory meanings.
Hays v. Hinkle, Tex.Civ.App., 193 S.W. 153, 155;
Cohn v. U. S., C.C.A.N.Y., 258 F. 355, 361; Smith v.
Lingelbach, 177 Wis. 170, 187 N.W. 1007, 1008.
In the plural, the deeds, agreements, title-papers, letters, receipts, and other written instruments used to prove a fact.
Docket, striking a. A phrase formerly used in
English bankruptcy practice. It referred to the
entry of certain papers at the bankruptcy office,
preliminary to the prosecution of the fiat against
a trader who had become bankrupt. These papers consisted of the affidavit, the bond, and the
petition of the creditor, and their object was to
obtain from the lord chancellor his fiat, authorizing the petitioner to prosecute his complaint
against the bankrupt in the bankruptcy courts.
Brown.
In the Civil Law
Evidence delivered in the forms established by
law, of whatever nature such evidence may be.
The term is, however, applied principally to the
testimony of witnesses. Sa y . Dr. Rom. § 165.
In General
Ancient documents. Deeds, wills, and other
writings more than thirty years old are so called;
they are presumed to be genuine without express.
proof, when coming from the proper custody.
DOCTOR, v. To prescribe or treat medically or
to treat as a doctor or physician. Haines v. Indiana Trust Co., 95 Ind.App. 651, 131 N.E. 89, 91.
Foreign document. One which was prepared
or executed in, or which comes from, a foreign
state or country.
DOCTOR, n. A learned man; one qualified to
give instruction of the higher order in a science or
art; particularly, one who has received the highest academical degree in his art or faculty, as, a
doctor of laws, medicine, or theology. In colloquial language, however, the term is practically
restricted to practitioners of medicine. Harrison
v. State, 102 Ala. 170, 15 So. 563; State v. McKnight, 131 N.C. 717, 42 S.E. 580, 59 L.R.A. 187.
But it is not synonymous with surgeon. State
v. Miller, 59 N.D. 286, 229 N.W. 569, 574.
Judicial documents. Proceedings relating to
litigation. They are divided into (1) judgments,
decrees, and verdicts; (2) depositions, examinations, and inquisitions taken in the course of a
legal process; (3) writs, warrants, pleadings, etc.,
which are incident to any judicial proceedings.
See 1 Starkie, Ev. 252.
Public document. A state paper, or other instrument of public importance or interest, issued
or published by authority of congress or a state.
legislature. Also any document or record, evidencing or connected with the public business or
the administration of public affairs, preserved in
or issued by any department of the government.
See Hammatt v. Emerson, 27 Me. 335, 46 Am.
Dec. 598. One of the publications printed by
order of congress or either house thereof. McCall v. U. S., 1 Dak. 328, 46 N.W. 608. Broadly,.
any document open to public inspection. Flint v.
Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed..
389, Ann.Cas.1912B, 1312.
DOCTOR AND STUDENT. The title of a work
written by St. Germain in the reign of Henry
VIII, in which many principles of the common
law are discussed in a popular manner. It is
in the form of a dialogue between a doctor of
divinity and a student in law, and has always
been considered a book of merit and authority.
1 Kent, Comm. 504; Crabb, Eng. Law, 482.
DOCTORS' COMMONS. An institution near St.
Paul's Churchyard, in London, where, for a long
time previous to 1857, the ecclesiastical and admiralty courts used to be held.
DOCTRINAL INTERPRETATION. See Interpretation.
DOCTRINE. A rule, principle, theory, or tenet
of the law; as, the doctrine of merger, the doctrine of relation, etc.
DOCUMENT. An instrument on which is recorded, by means of letters, figures, or marks, matter
which may be evidentially used. In this sense the
term "document" applies to writings; to words
printed, lithographed, or photographed; to seals,
plates, or stones on which inscriptions are cut or
DOCUMENTARY EVIDENCE. Evidence sup
plied by writings and documents of every kind_
in the widest sense of the term; evidence derived
from conventional symbols (such as letters) by
which ideas are represented on material substances. Such evidence as is furnished by written
instruments, inscriptions, documents of all kinds,
and also any inanimate objects admissible for thepurpose, as distinguished from "oral" evidence,.
or that delivered by human beings viva voce.
People v. Purcell, 22 Cal.App.2d 126, 70 P.2d 706,
709.
568
DOITKIN
Walton N. Moore Dry Goods Co. v. Commercial
Industrial Co., C.C.A.,Cal., 282 F. 21, 25. The
activities of the corporation, however, must represent a more or less continuous effort; Knapp
v. Bullock Tractor Co., D.C.Cal., 242 F. 543, 550;
Johnson v. Cass & Emerson, 91 Vt. 103, 99 A. 633,
635; or be of a systematic and regular nature;
Home Lumber Co. v. Hopkins, 107 Kan. 153, 190
P. 601, 605, 10 A.L.R. 879.
DODRANS. Lat. In Roman law. A subdivision
of the as, containing nine uncice; the proportion
of nine-twelfths, or three-fourths. 2 Bl.Comm.
462, note.
DOE, JOHN. The name of the fictitious plaintiff
in the action of ejectment. 3 Steph. Comm. 618.
DOED-BANA. In Saxon law. The actual perpetrator of a homicide.
The transaction of single piece of business is
not enough. Wood & Selick v. American Grocery
Co., 96 N.J.Law, 218, 114 A. 756, 757; Anderson v.
Morris & E. R. Co., C.C.A.N.Y., 216 F. 83, 87. To
the contrary. Tripp State Bank of Tripp v. Jerke,
45 S.D. 448, 188 N.W. 314, 315.
DOER. In Scotch law. An agent or attorney. 1
Kames, Eq. 325.
DOG-DRAW. In old forest law. The manifest
deprehension of an offender against venison in a
forest, when he was found drawing after a deer
by the scent of a hound led in his hand; or where
a person had wounded a deer or wild beast, by
shooting at him, or otherwise, and was caught
with a dog drawing after him to receive the same.
Manwood, Forest Law, 2, c. 8.
No general definition can be made of phrase "doing business" in statutes relating to foreign corporations. Each
case must be determined on its own facts, by considering
objective of statute in which phrase is found, its purpose
and orientation to the carrying on of business, nature of
activities, their magnitude, multiplicity of contracts, and
possibility that incidents may occur and liabilities be created, especially where entrance into state is in ordinary
prosecution of corporation's business. State Highway and
Public Works Commission v. Diamond S. S. Transp. Corp.,
225 N. C. 198, 34 S.E.2d 78, 80, 81.
DOG-LATIN. The Latin of illiterate persons;
Latin words put together on the English grammatical system.
Ordinarily the phrase means engaging in activities in
pursuit of gain. Welch Holding Co. v. Galloway, 161 Or.
515, 89 P.2d 559; People v. Jones, 16 N.Y.S.2d 558, 559, 172
Misc. 368.
DOGGER. In maritime law. A light ship or vessel. Cowell.
Dogger-fish, fish brought in ships.
Dogger-men, fishermen that belong to doggerships.
DOGMA. In the civil law. A word occasionally
used as descriptive of an ordinance of the senate.
See Nov. 2, 1, 1; Dig. 27, 1, 6.
DOGS. Steel rods with clamps or tongs thereon,
for carrying heavy steel rails. Jefferson v. Denkmann Lumber Co., 148 So. 237, 239, 167 Miss. 246.
DOING. The formal word by which services were
reserved and expressed in old conveyances; as
"rendering" (reddendo) was expressive of rent.
Perk. c. 10, §§ 625, 635, 638. As used in La.Civ.
Code, art. 1931, the word signifies activity. Noel
Estate v. Louisiana Oil Refining Corporation, 188
La. 45, 175 So. 744, 746.
DOING BUSINESS. Within statutes on service
of process on foreign corporations, equivalent to
conducting or managing business. Wichita Film
g
z Supply Co. v. Yale, 194 Mo.App. 60, 184 S.W.
119. A foreign corporation is "doing business",
making it amenable to process within state, if
it does business therein in such a manner as to
warrant the inference that it is present there.
Cannon Mfg. Co. v. Cudahy Packing Co., D.C.N.C.,
292 F. 169, 171. Or that it has subjected itself
to the jurisdiction and laws in which the service
is made. W. J. Armstrong Co. v. New York Cent.
& H. R. R. Co., 129 Minn. 104, 151 N.W. 917, 919,
L.R.A.1916E, 232, Ann.Cas.1916E, 335; The doing
of business is the exercise in the state of some
of the ordinary functions for which the corporation was organized. Davis & Worrell v. General
Motors Acceptance Corporation, 153 Ark. 626, 241
S.W. 44, 46. What constitutes "doing business"
depends on the facts in each particular case.
The following transactions and businesses illustrate,
what constitutes or does not constitute "doing business" :
advertising, Society Milton Athena v. National Bank of
Greece, 1 N.Y.S.2d 155, 2 N.Y.S.2d 155; Deighan v. Beverage Retailer Weekly & Trade Newspaper Corporation, 18
N.J.Misc. 705, 16 A.2d 612, 613; bringing of actions, R. L.
Witters Associates v. Ebsary Gypsum Co., D.C.Fla., 19 F.
Supp. 646, 648; Schneider v. Greater M. & S. Circuit, 259
N.Y.S. 319, 144 Misc. 534; broadcasting system, Hoffman
v. Carter, 118 N.J.L. 379, 192 A. 825; State ex rel. Columbia Broadcasting Co. v. Superior Court for King County,
1 Wash.2d 379, 96 P.2d 248, 250; consignment, Oyler v. J.
P. Seeburg Corporation, D.C.Tex., 29 F.Supp. 927; Thew
Shovel Co. v. Superior Court in and for City and County
of San Francisco, 35 Cal.App.2d 183, 95 P.2d 149, 151, 152;
holding companies, Wilhelm v. Consolidated Oil Corporation, D.C.Okl., 11 F.Supp. 444, 447; Cliffs Corporation v.
Evatt, 138 Ohio St. 336, 35 N.E.2d 144, 151; insurance,
Sasnett v. Iowa State Traveling Men's Ass'n, C.C.A.Iowa,
90 F.2d 514; Hoopeston Canning Co. v. Pink, 288 N.Y. 291,
43 N.E.2d 49, 53; newspapers, Layne v. Tribune Co., 71
F.2d 223, 224, 63 App.D.C. 213; Neely v. Philadelphia Inquirer Co., 62 F.2d 873, 874, 61 App.D.C. 334; railroads,
Klabzuba v. Southern Pac. Co., D.C.Wash., 33 F.2d 359,
360; Gadboury v. Central Vermont Ry. Co., 231 N.Y.S.
630, 632, 225 App.Div. 145; solicitation, Mandel Bros. v.
Henry A. O'Neil, Inc., C.C.A.S.D., 69 F.2d 452, 455; Bank
v. Charles Meyers & Co., 182 Md. 556, 35 A.2d 110, 113.
Illustrations of what constitutes "doing business" within
various taxing statutes follow : Capital stock tax, Goodyear Inv. Corporation v. Campbell, C.C.A.Ohio, 139 F.2d
188, 190, 191: Refrigeration Discount Corporation v. Metzger, D.C.Pa., 10 F.Supp. 748, 749; excise tax, Harmar Coal.
Co. v. Heiner, D.C.Pa., 26 F.2d 729, 730; Queens Run Refractories Co. v. Commonwealth, 270 Mass. 19, 169 N.E. 515,
516; franchise tax, Stone v. Interstate Natural Gas Co.,
C.C.A.Miss., 103 F.2d 544, 548; Cliffs Corporation v. Evatt,
138 Ohio St. 336, 35 N.E.2d 144, 151; income tax, Blair v.
Wilson Syndicate Trust, C.C.A., 39 F.2d 43, 45; Welch
Holding Co. v. Galloway, 161 Or. 515, 89 P.2d 559, 564.
DOITKIN, or DOIT. A base coin of small value,
prohibited by St. 3 Hen. V. c. 1. We still retain
the phrase, in the common saying, when we would
undervalue a man, that he is not worth a doit.
Jacob.
569
DOLE
DOLE. A part, share, or portion, as of a meadow.
To "dole out" anything is to deal or distribute in
small portions. Holthouse. In Scotch law, criminal intent; evil design. Bell, Dict. voc. "Crime."
DOL1ANCE. A peculiar appeal in the Channel
Islands. It is a personal charge against a judicial officer, either of misconduct or of negligence.
L. R. 6 P. C. 155. It still exists in a modified
form. L. R. 5 A. C. 348. See 48 L. Jour. 281.
DOLES, or DOOLS. Slips of pasture left between the furrows of plowed land.
DOW. Sax. A wound. Spelman.
DOLG-ROTE. A recompense for a scar or wound.
Cowell.
DOLI. Lat. See Dolus.
DOLI CAPAX. Capable of malice or criminal intention; having sufficient discretion and intelligence to distinguish between right and wrong,
and so to become amenable to the criminal laws.
DOLI INCAPAX. Incapable of criminal intention or malice; not of the age of discretion; not
possessed of sufficient discretion and intelligence
to distinguish between right and wrong to the
extent of being criminally responsible for his
actions.
DOLLAR. The unit employed in the United
States in calculating money values. It is of the
value of one hundred cents. People v. Alba, 46
Cal.App.2d 859, 117 P.2d 63. Money or currency
issued by lawful authority and intended to pass
and circulate as such. Neufield v. United States,
118 F.2d 375, 387, 73 App.D.C. 174.
DOLLY. A kind of handbarrow or handcart, consisting essentially of a strong, braced frame terminating in a pair of handles at one end and supported on a pair of small heavy wheels with
broad rim. A small heavy rectangular frame
supported on four small wheels used instead of
rollers for moving heavy objects as on a floor.
McGillivary v. Montgomery Ward & Co., 19 Wash.
2d 582, 143 P.2d 550, 552. See, Box Dolly.
DOLO. In Spanish law. Bad or mischievous design. White, New Recop. b. 1, tit. 1, c. 1, § 3.
DOLO FACIT QUI PETIT QUOD REDDITURUS
EST. He acts with guile who demands that which
he will have to return. Broom, Max. 346.
DOLO MALO PACTUMSE NON SERVATURUM.
Dig. 2, 14, 7, § 9. An agreement induced by fraud
cannot stand.
DOLORIMETER. An instrument used by a physician to measure a patient's pain threshold. The
instrument emits a ray of light which is shined
into one's eye at various degrees of brightness.
Dolorimetry is the science of measuring pain.
DOLOSUS VERSATUR IN GENERALIBUS. A
person intending to deceive deals in general terms.
Wing. Max. 636; 2 Coke, 34a; 6 Clark & F. 699;
Broom, Max. 289.
DOLUM EX INDICIIS PERSPICUIS PROBARI
CONVENIT. Fraud should be proved by clear
tokens. Code, 2, 21, 6; 1 Story, Cont. § 625.
DOLUS. In the civil law. Guile; deceitfulness;
malicious fraud. A fraudulent address or trick
used to deceive some one; a fraud. Dig. 4, 3, 1.
Any subtle contrivance by words or acts with a
design to circumvent. 2 Kent, Comm. 560; Code,
2, 21.
Such acts or omissions as operate as a deception
upon the other party, or violate the just confidence
reposed by him, whether there be a deceitful intent ( malus animus) or not. Poth. Traitê de Depot, nn. 23, 27; Story, Bailm. § 20a; 2 Kent,
Comm. 506, note.
Fraud, willfulness, or intentionality. In that
use it is opposed to culpa, which is negligence
merely, in greater or less degree. The policy of
the law may sometimes treat extreme culpa as if
it were dolus, upon the maxim culpa dolo comparatur. A person is always liable for dolus producing damage, but not always for culpa producing damage, even though extreme. Brown.
DOLUS AUCTORIS NON NOCET SUCCESSORI.
The fraud of a predecessor prejudices not his successor.
DOLUS BONUS, DOLUS MALUS. In a wide
sense, the Roman law distinguishes between
"good," or rather "permissible" dolus and "bad"
or fraudulent dolus. The former is justifiable or
allowable deceit; it is that which a man may employ in self-defense against an unlawful attack,
or for another permissible purpose, as when one
dissembles the truth to prevent a lunatic from
injuring himself or others. The latter exists
where one intentionally misleads another or takes
advantage of another's error wrongfully, by any
form of deception, fraud, or cheating. Mackeld.
Rom. Law, § 179; Broom, Max. 349; 2 Kent,
Comm. 560, note.
DOLUS CIRCUITU NON PURGATUR. Fraud is
not purged by circuity. Bac. Max. 4; Broom, Max.
228.
DOLUS DANS LOCUM CONTRACTUI. Fraud
(or deceit) giving rise to the contract; that is, a
fraudulent misrepresentation made by one of the
parties to the contract, and relied upon by the
other, and which was actually instrumental in inducing the latter to enter into the contract.
DOLUS EST MACHINATIO, CUM ALIUD DISSIMULAT ALIUD AGIT. Lane, 47. Deceit is an
artifice, since it pretends one thing and does another.
DOLUS ET FRAUS NEMINI PATROCINENTUR,
( PATROCINARI DEBENT.) Deceit and fraud
shall excuse or benefit no man. Yearb. 14 Hen.
VIII. 8; Best, Ev. p. 469, § 428; 1 Story, Eq. Jur.
§ 395.
570
DOMESTICUS
DOMESMEN. (Sax.) An inferior kind of judges.
Men appointed to doom (judge) in matters in controversy. Cowell. Suitors in a court of a manor
in antient demesne, who are judges there. Blount;
Whishaw; Termes de la Ley.
DOLUS LATET IN GENERALIBUS. Fraud lurks
in generalities. Tray. Lat. Max. 162.
DOLUS VERSATUR IN GENERALIBUS. Fraud
deals in generalities. 2 Coke, 34a; 3 Coke, 81a.
DOM. PROC. An abbreviation of Domus Procerum or Domo Procerum; the house of lords
in England. Sometimes expressed by the letters
D. P.
,
DOMESTIC, n. A domestic, or, in full, domestic
servant, is a servant who resides in the same
house with the master. The term does not extend
to workmen or laborers employed out of doors.
Ex parte Meason, 5 Bin. (Pa.) 167; Richardson v.
State, 43 Tex. 456; Anderson v. Ueland, 197 Minn.
518, 267 N.W. 517, 518.
DOMAIN. The complete and absolute ownership
of land; a paramount and individual right of
property in land. People v. Shearer, 30 Cal. 658.
Also the real estate so owned. The inherent sovereign power claimed by the legislature of a
state, of controlling private property for public
uses, is termed the "right of eminent domain."
2 Kent, Comm. 339. See Eminent Domain.
The Louisiana Civil Code enumerates as domestics those
who receive wages and stay in the house of the person
paying and employing them, for his own service or that of
his family ; such as valets, footmen, cooks, butlers, and
others who reside in the house. Persons employed in public houses are not included. Cook v. Dodge, 6 La.Ann. 276.
The term is sometimes extended, however, to include
servants who do not reside in the same house as the master.
Catto v. Plant, 106 Conn. 236, 137 A. 764, 766 (gardner) ;
Douglas v. State, 88 Tex.Cr.R. 295, 225 S.W. 536, 538 (house
porter).
A distinction has been made between "property" and
"domain." The former is said to be that quality which is
conceived to be in the thing itself, considered as belonging
to such or such person, exclusively of all others. By the
latter is understood that right which the owner has of disposing of the thing. Hence "domain" and "property" are
said to be correlative terms. The one is the active right
to dispose of ; the other a passive quality which follows
the thing and places it at the disposition of the owner. 3
Toullier, no. 83.
DOMESTIC, adj. Pertaining, belonging, or relating to a home, a domicile, or to the place of birth,
origin, creation, or transaction. Catto v. Plant,
106 Conn. 236, 137 A. 764, 765; In re Savin's Estate, 131 N.J.Eq. 563, 26 A.2d 270, 273.
National domain is sometimes applied to the
aggregate of the property owned directly by a
nation. Civ. Code La. art. 486. Public domain
embraces all lands, the title to which is in the
United States, including as well land occupied
_for the purposes of federal buildings, arsenals,
dock-yards, etc., as land of an agricultural or
mineral character not yet granted to private owners. Day Land & Cattle Co. v. State, 68 Tex. 526,
,
4 S.W. 865.
As to domestic "Administrators," "Attachment,"
"Bill of Exchange," "Commerce," "Corporations,"
"Creditors," "Factors," "Fixtures," "Judgment,"
and "Manufactures," see those titles.
DOMBEC, DOMBOC. (Sax. From dom, judgment,
and bec, boc, a book.) Dome-book or doom-book.
A name given among the Saxons to a code of laws.
Several of the Saxon kings published dombocs,
but the most important one was that attributed
to Alfred. Crabb, Com. Law, 7. This is sometimes confounded with the celebrated DomesdayBook. See Dome-Book; Domesday.
DOME. (Sax.) Doom; sentence; judgment. An
oath. The homager's oath in the black book of
Hereford. Blount.
DOME-BOOK. A book or code said to have been
compiled under the direction of Alfred, for the
general use of the whole kingdom of England;
containing, as is supposed, the principal maxims
of the common law, the penalties for misdemeanors, and the forms of judicial proceedings. It is
said to have been extant so late as the reign of
Edward IV., but is now lost. 1 Bl.Comm. 64, 65.
DOMESDAY, DOMESDAY-BOOK. (Sax.) An ancient record made in the time of William the Conqueror, and now remaining in the English exchequer, consisting of two volumes of unequal size,
containing minute and accurate surveys of the
lands in England. 2 Bl.Comm. 49, 50. The work
was begun by five justices in each county in 1081,
and finished in 1086.
DOMESTIC ANIMALS. Such as are habituated
to live in or about the habitations of men, or such
as contribute to the support of a family or the
wealth of the community. This term includes
horses, (State v. Gould, 26 W.Va. 264; Osborn v.
Lenox, 2 Allen [Mass.] 207,) male goat, (Young
v. Blaum, La.App., 146 So. 168, 169) ; cattle (Yazoo & Mississippi R. Co. v. Gordon, 184 Miss. 885,
186 So. 631, 632; parrot (K. G. 0. Construction
Co. v. King, N.J.Dist.Ct., 12 N.J.Misc. 291, 171 A.
164, 165.
DOMESTIC COURTS. Those existing and having
jurisdiction at the place of the party's residence
or domicile. Dickinson v. Railroad Co., 7 W.Va.
417.
DOMESTIC PURPOSES. As regards rights of
riparian owner, extends to culinary purposes and
to purposes of cleansing, washing, feeding, and
supplying an ordinary quantity of cattle. Cowell
v. Armstrong, 290 P. 1036, 1038, 210 Cal.App. 218.
It includes consumption and sustenance of human being and does not necessarily exclude occupants of hotels, apartments, boarding houses,
etc. Prather v. Hoberg, 24 Cal.2d 549, 150 P.2d
405, 412.
DOMESTIC SERVANT. See Domestic.
DOMESTICATED. Made domestic or converted
to domestic use. Commonwealth v. Flynn, 285
Mass. 136, 188 N.E. 627, 628, 92 A.L.R. 206.
DOMESTICUS. In old European law. A seneschal, steward, or major domo; a judge's assistant;
an assessor, (q. v.). Spelman.
571
DOMICELLA
DOMICELLA. In old English law. A damsel.
Fleta, lib. 1, c. 20, § 80.
DOMICELLUS. In old English law. A better
sort of servant in monasteries; also an appellation of a king's bastard.
DOMICILE. That place where a man has his
true, fixed, and permanent home and principal
establishment, and to which whenever he is absent
he has the intention of returning. Kurilla v. Roth,
132 N.J.L. 213, 38 A.2d 862, 864; In re Stabile, 348
Pa. 587, 36 A.2d 451, 458; Shreveport Long Leaf
Lumber Co. v. Wilson, D.C.La., 38 F.Supp. 629, 631,
632. Not for a mere special or temporary purse, but with the present intention of making a
permanent home, for an unlimited or indefinite
period. In re Garneau, 127 F. 677, 62 C.C.A. 403;
In re Gilbert's Estate, 15 A.2d 111, 117, 118, 18 N.J.
Misc. 540; In re Schultz' Estate, 316 Ill.App. 540,
45 N.E.2d 577, 582. Davis v. Davis, Ohio App., 57
N.E.2d 703, 704.
In international law, a residence at a particular place, accompanied with positive or presumptive proof of an intention to continue there for
an unlimited time. State v. Collector of Bordentown, 32 N.J.Law, 192; Graham v. Graham, 81 N.
W. 44, 9 N.D. 88; Phillimore, Int. Law 49.
The word "domicile" is derived from latin "domus",
meaning home or dwelling house, and domicile is legal
conception of "home". In re Schultz' Estate, 316 Ill.App.
45 N.E.2d 577, 582, 316 Ill.App. 540.
The established, fixed, permanent, or ordinary dwellingplace or place of residence of a person, as distinguished
from his temporary and transient, though actual, place of
residence. It is his legal residence, as distinguished from
his temporary place of abode; or his home, as distinguished from a place to which business or pleasure may
temporarily call him. Towson v. Towson, 126 Va. 640, 102
S.E. 48, 52.
"Citizenship," "habitancy," and "residence" are severally words which in the particular case may mean precisely
the same as domicile. Baker v. Keck, D.C.Ill., 13 F.Supp.
487. Earley v. Hershey Transit Co., D.C.Pa., 55 F.Supp.
981, 982; Dodd v. Lorenz, 210 Iowa 513, 231 N.W. 422,
424; Commonwealth ex rel. Fortney v. Bobrofskie, 329
Pa. 44, 196 A. 489, 490; Perkins v. Guaranty Trust Co.,
of New York, 274 N.Y. 250, 8 N.E.2d 849, 852.
"Domicile" and "residence," however, are frequently
distinguished, in that domicile is the home, the fixed place
of habitation; while residence is a transient place of dwelling. Fisher v. Jordan, C.C.A.Tex., 116 F.2d 183, 186;
Minick v. Minick, 111 Fla. 469, 149 So. 483, 488; Hartzler
v. Radeka, 265 Mich. 451, 251 N.W. 554.
Domicile may be deemed to be of three sorts,—domicile
by birth, domicile by choice, and domicile by operation of
law. The first is the common case of the place of birth,
domicilium originis; the second is that which is voluntarily acquired by a party, proprio motu; the last is consequential, as that of the wife arising from marriage. Story,
Confl. Laws, § 46. And see Railroad Co. v. Kirnbrough, 115
Ky. 512, 74 S.W. 229; Johnson v. Harvey, 261 Ky. 522, 88
S. W.2d 42, 46, 47.
Abandonment of domicile, see Abandonment.
Commercial Domicile
A domicile acquired by the maintenance of a
commercial establishment; a domicile which a
citizen of a foreign country may acquire by conducting business in another country. 1 Kent, 82.
See Dicey, Dom. 341; The Dos Hermanos, 2
Wheat. 76, 4 L.Ed. 189.
De Facto Domicile
In French law, permanent and fixed residence
in France of an alien who has not acquired French
citizenship nor taken steps to do so, but who intends to make his home permanently or indefinitely in that country; called domicile "de facto'r
because domicile in the full sense of that term, as
used in France, can only be acquired by an act
equivalent to naturalization. In re Cruger's Will,
36 Misc. 477, 73 N.Y.S. 812.
Domestic Domicile
A name sometimes used for "municipal domicile" (q. v.). Hayward v. Hayward, 65 Ind.App.
440, 115 N.E. 966, 970.
Domicile of Choice
The essentials of "domicile" of choice are the
fact of physical presence at a dwelling place and
the intention to make that place home. New York
Trust Co. v. Riley, Del., 16 A.2d 772, 776, 783, 785;
In re Eisenberg's Estate, 31 N.Y.S.2d 380, 384, 385,
386, 177 Misc. 655; Prince v. New York Life Ins.
Co., D.C.Mass., 24 F.Supp. 41, 42.
Domicile of Corporation
Place considered by law as center of corporate
affairs and place where its functions are discharged. Fisher & Van Gilder v. First Trust
Joint-Stock Land Bank, 210 Iowa 531, 231 N.W.
671, 672, 69 A.L.R. 1340.
Domicile of Origin
The home of the parents. Phillim. Dom. 25,
101. That which arises from a man's birth and
connections. 5 Ves. 750. The domicile of the
parents at the time of birth, or what is termed
the "domicile of origin," constitutes the domicile
of an infant, and continues until abandoned, or
until the acquisition of a new domicile in a different place. Struble v. Struble, Tex.Civ.App., 177
S.W.2d 279, 283.
Domicile of Succession
As distinguished from a commercial, political,
or forensic domicile, the actual residence of a person within some jurisdiction, of such a character
as shall, according to the well-established principles of public law, give direction to the succession of his personal estate. Smith v, Croom, 7 Fla.
81.
Elected Domicile
The domicile of parties fixed in a contract between them for the purposes of such contract.
Woodworth v. Bank of America, 19 Johns., N.Y.,
417, 10 Am.Dec. 239.
Foreign Domicile
A domicile established by a citizen or subject
of one sovereignty within the territory of another.
Matrimonial Domicile
The place where a husband and wife have established a home, in which they reside in the re-
572
DOMINION
DOMINA (DAME). A title given to honorable
women, who anciently, in their own right of inheritance, held a barony. Cowell.
lation of husband and wife, and where the matrimonial contract is being performed. Gould v.
Gould, 201 App.Div. 670, 194 N.Y.S. 745, 747.
DOMINANT ESTATE OR TENEMENT. That to
which a servitude or easement is due, or for the
benefit of which it exists. A term used in the
civil and Scotch law, and thence in ours, relating
to servitudes, meaning the tenement or subject
in favor of which the service is constituted; as
the tenement over which the servitude extends is
called the "servient tenement." Union Falls Power Co. v. Marinette County, 238 Wis. 134, 298 N.W.
598, 600, 601, 134 A.L.R. 958.
Municipal Domicile
One which as distinguished from "national domicile" and "quasi national domicile" (see those
titles, infra), has reference to residence in a county, township, or municipality. Hayward v. Hayward, 65 Ind.App. 440, 115 N.E. 966, 970.
National Domicile
The domicile of a person, considered as being
within the territory of a particular nation, and
not with reference to a particular locality or subdivision of a nation.
DOMINATE. To master, to rule, or to control.
Humble Oil & Refining Co. v. National Labor Relations Board, C.C.A.5, 113 F.2d 85, 88, 90.
DOMINATIO. In old English law. Lordship.
Natural Domicile
The same as domicile of origin or domicile by
birth. Johnson v. Twenty-One Bales, 13 Fed.Cas.
863.
Necessary Domicile
DOMINICA PALMARUM. (Dominica in ramis
palmarum.) L. Lat. Palm Sunday. Townsh. Pl.
131; Cowell; Blount.
DOMINICAL. That which denotes the Lord's day,
or Sunday.
That kind of domicile which exists by operation
of law, as distinguished from voluntary domicile
or domicile of choice. Phillim. Dom. 27-97.
DOMINICAN NUNS. An order of nuns founded
by St. Dominic under a modified form of St. Augustine's rule, chiefly employed in teaching girls.
Sacred Heart Academy of Galveston v. Karsch,
173 Tenn. 618, 122 S.W.2d 416, 417.
Quasi National Domicile
One involving residence in a state. Hayward v.
Hayward, 65 Ind.App. 440, 115 N.E. 966, 970. See
National Domicile, supra.
DOMINICIDE. The act of killing one's lord or
master.
DOMICILED. Established in a given domicile;
belonging to a given state or jurisdiction by right
of domicile.
DOMINICUM. Lat. Domain; demain; demesne.
A lordship. That of which one has the lordship
or ownership. That which remains under the
lord's immediate charge and control. Spelman;
Blount.
DOMICILIARY. Pertaining to domicile; relating
to one's domicile. Existing or created at, or connected with, the domicile of a suitor or of a decedent.
DOMICILIARY ADMINISTRATION. Administration in state where person was domiciled at time
of death is deemed principal or primary administration and is ordinarily termed "domiciliary administration." First Nat. Bank v. Blessing, 231
Mo.App. 288, 98 S.W.2d 149, 151, 231 Mo.App. 288.
DOMICILIATE. To establish one's domicile; to
take up one's fixed residence in a given place.
To establish the domicile of another person whose
legal residence follows one's own.
DOMICILIATION. In Spanish law. The acquisition of domiciliary rights and status, nearly equivalent to naturalization, which may be accomplished by being born in the kingdom, by conversion to the Catholic faith there, by taking up a
permanent residence in some settlement and marrying a native woman, and by attaching oneself to
the soil, purchasing or acquiring real property
and possessions. Yates v. lams, 10 Tex. 168.
DOMICILIUM. Lat. Domicile (q. v.).
DOMIGERIUM. In old English law. Power over
another; also danger. Bract. 1. 4, t. 1, c. 10.
In Domesday Book it meant the home farm as distinguished from the holdings of the tenants. Vinogradoff,
Engl.Soc. in Eleventh Century 253.
Property; domain; anything pertaining to a
lord. Cowell. In Ecclesiastical law. A church,
or any other building consecrated to God. Du
Cange.
DOMINICUM ANTIQUUM. In old English law.
Ancient demesne. Bract. fol. 369b.
DOMINIO. Sp. In Spanish law. A term corresponding to and derived from the Latin dominium
(q. v.). Dominio alto, eminent domain; dominio
directo, i mmediate ownership; dominio utile,
beneficial ownership. Hart v. Burnett, 15 Cal.
556.
DOMINION. Ownership, or right to property or
perfect or complete property or ownership. Whelan v. Henderson, Tex.Civ.App., 137 S.W 2d 150,
153. Title to an article of property which arises
from the power of disposition and the right of
claiming it. Baker v. Westcott, 73 Tex. 129, 11
S.W. 157, 8 East, 579. See, also, State v. Johnson, 34 S.D. 601, 149 N.W. 730, 734.
Sovereignty or lordship; as the dominion of
the seas. Moll. de Jure Mar. 91, 92.
573
DOMINION
In the civil law, with reference to the title to property • the king's title as lord paramount 1 BI.Comm.
which is transferred by a sale of it, dominion is said to be
367. Dominus capitalis, a chief lord. Dominus
either "proximate" or "remote," the former being the
medius, a mesne or intermediate lord. Dominus
kind of title vesting in the purchaser when he has acquired
both the ownership and the possession of the article, the
ligius, liege lord or sovereign. Id.
latter describing the nature of his title when he has legitiLord or sir; a title of distinction. It usually
mately acquired the ownership of the property but there
has been no delivery. Coles v. Perry, 7 Tex. 109.
denoted a knight or clergyman; and, according
DOMINIUM. In the civil and old English law.
Ownership; property in the largest sense, including both the right of property and the right of
possession or use.
The mere right of property, as distinguished
from the possession or usufruct. Dig. 41, 2, 17, 1;
Calvin. The right which a lord had in the fee
of his tenant. In this sense the word is very
clearly distinguished by Bracton from dominicum.
The estate of a feoffee to uses. "The feoffees
to use shall have the dominium, and the cestui
que use the disposition." Latch. 137.
Sovereignty or dominion. Dominium maris, the
sovereignty of the sea.
DOMINIUM DIRECTUM.
In the civil law. Strict ownership; that which
was founded on strict law, as distinguished from
equity. In later law. Property without use; the
right of a landlord. Tayl. Civil Law 478. In
feudal law. Right or proper ownership;—the
right of a superior or lord, as distinguished from
that of his vassal or tenant. The title or property which the sovereign in England is considered
as possessing in all the lands of the kingdom,
they being holden either immediately or mediately of him as lord paramount.
DOMINIUM DIRECTUM ET UTILE. The complete and absolute dominion in property; the
union of the title and the exclusive use. Fairfax
v. Hunter, 7 Cranch, 603, 3 L.Ed. 453.
DOMINIUM EMINENS. Eminent domain.
DOMINIUM NON POTEST ESSE IN PENDENTI. Lordship cannot be in suspense, i. e., property cannot remain in abeyance. Halk. Law Max.
39.
DOMINIUM PLENUM. Full ownership; the union of the dominium directum with the dominium
utile. Tayl. Civil Law, 478.
DOMINIUM UTILE. In the civil law. Equitable
or praetorian ownership; that which was founded on equity. Mackeld. Rom. Law, § 327, note.
In later law. Use without property; the right
of a tenant. Tayl. Civil Law, 478. In feudal law.
Useful or beneficial ownership; the usufruct, or
right to the use and profits of the soil, as distinguished from the dominium directum (q. v.)
or ownership of the soil itself; the right of a vassal or tenant. 2 Bl.Comm. 105.
DOMINO VOLENTE. Lat. The owner being willing; with the consent of the owner.
DOMINUS.
In feudal and ecclesiastical law. A lord, or
feudal superior. Dominus rex, the lord the king;
to Cowell, was sometimes given to a gentleman of
quality, though not a knight, especially if he
were lord of a manor.
The owner or proprietor of a thing, as distinguished from him who uses it merely. Calvin.
A master or principal, as distinguished from an
agent or attorney. Story, Ag. § 3.
In the civil law. A husband. A family. Vicat.
DOMINUS CAPITALIS LOCO H1EREDIS HABETUR, QUOTIES PER DEFECTUM VEL DELICTUM EXTINGUITUR SANGUIS SUI TENENTIS. Co. Litt. 18. The supreme lord takes the
place of the heir, as often as the blood of the
tenant is extinct through deficiency or crime.
DOMINUS LITIS. Lat. The master of the suit;
i. e., the person who was really and directly interested in the suit as a party, as distinguished
from his attorney or advocate. But the term is
also applied to one who, though not originally a
party, has made himself such, by intervention or
otherwise, and has assumed entire control and
responsibility for one side, and is treated by the
court as liable for costs. Virginia Electric &
Power Co. v. Bowers, 181 Va. 542, 25 S.E.2d 361,
363.
It is also said that the attorney himself, when the cause
has been tried, becomes the dominus litis. Vicat.
DOMINUS NAVIS. In the civil law. The owner
of a vessel. Dig. 39, 4, 11, 2; Wharton.
DOMINUS NON MARITABIT PUPILLUM NISI
SEMEL. Co. Litt. 9. A lord cannot give a ward
in marriage but once.
DOMINUS REX NULLUM HABERE POTEST
PAREM, MULTO MINUS SUPERIOREM. The
king cannot have an equal, much less a superior.
1 Reeve, Eng. Law, 115.
DOMITLE. Lat. Tame; domesticated; not wild.
Applied to domestic animals, in which a man may
have an absolute property. 2 Bl.Comm. 391.
DOMMAGES INTARETS. In French law. Damages.
DOMO REPARANDA. A writ that lay for one
against his neighbor, by the anticipated fall of
whose house he feared a damage and injury to his
own. Reg. Orig. 153.
DOMUS. Lat. In the civil and old English law.
A house or dwelling; a habitation. Inst. 4, 4, 8;
Townsh.Pl. 183-485. Shreveport Long Leaf Lumber Co. v. Wilson, D.C.La., 38 F.Supp. 629, 631.
See Domicile.
DOMUS CAPITULARIS. In old records. A chapter-house; the chapter-house. Dyer, 26b.
574
DONATIO
DOMUS CONVERSORUM. An ancient house
built or appointed by King Henry III. for such
Jews as were converted to the Christian faith;
but King Edward III., who expelled the Jews from
the kingdom, deputed the place for the custody of
the rolls and records of the chancery. Jacob.
DOMUS DEL The house of God; a name applied
to many hospitals and religious houses.
DOMUS MANSIONALIS. A mansion house. 1
Hale, P.C. 558; State v. Brooks, 4 Conn. 446; State
v. Sutcliffe, 4 Strob. (S.C.) 376.
DOMUS PROCERUM. The house of lords, abbreviated into Dom. Proc., or D. P.
DOMUS SUA CUIQUE EST TUTISSIMUM REFUGIUM. To every man his own house is his
safest refuge. 5 Coke, 91b; 11 Coke, 82; 3 Inst.
162. The house of every one is to him as his castle and fortress, as well for his defense .against
injury and violence as for his repose. 5 Coke,
91b; Say. 227; Broom, Max. 432. A man's dwelling-house is his castle, not for his own personal
protection merely, but also for the protection of
his family and his property therein. 19 How.St.
Tr. 1030.
DOMUS TUTISSIMUM CUIQUE REFUGIUM ATQUE RECEPTACULUM SIT. A man's house
should be his safest refuge and shelter. The habitation of each one is an inviolable asylum for him.
A maxim of the Roman law. Dig. 2, 4, 18.
DONA CLANDESTINA SUNT SEMPER SUSPICIOSA. 3 Coke, 81. Clandestine gifts are always suspicious. Noy, Max., 9th Ed. 152; 4 B. &
C. 652; 1 M. & S. 253; Broom, Max. 289, 290.
DONARI VIDETUR, QUOD NULLO JURE COGENTE CONCEDITUR. Dig. 50, 17, 82. A thing
is said to be given when it is yielded otherwise
than by virtue of right (that is considered to be
given which is granted when no law compels).
DONATARIUS. A donee; one to whom something is given. See Donee.
DONATIO. Lat. A gift. A transfer of the title
to property to one who receives it without paying
for it. Vicat. The act by which the owner of a
thing voluntarily transfers the title and possession
of the same from himself to another person, without any consideration. See Indiana N. & S. R. W.
Co. v. City of Attica, 56 Ind. 476.
Its literal translation, "gift," has acquired in real law a
more limited meaning, being applied to the conveyance of
estates tail. 2 Bl.Comm. 316; Littleton, § 59; West,
Symb. § 254; 4 Cruise, Dig. 51.
By the civil law (adopted into the English and American
law) donations are either inter vivos (between living persons) or mortis causa (in anticipation of death.) As to
these forms, see infra. A donatio or gift as between living
persons is called donatio mera or pura when it is a simple
gift without compulsion or consideration, that is, resting
solely on the generosity of the donor, as in the case of
most charitable gifts. It is called donatio remuneratoria
when given as a reward for past services, but still not under any legal compulsion, as in the case of pensions and
land-grants. It is called donatio sub modo (or modalis)
when given for the attainment of some special object or
on condition that the donee shall do something not specially
for the benefit of the donor, as in the case of the endowment of hospitals, colleges, etc., coupled with the condition
that they shall be established and maintained. Mackeld.
Rom.Law, § 466; Fisk v. Flores, 43 Tex. 340; Noe v. Card,
14 Cal. 576. The following terms are also used: Donatio
conditionalis, a conditional gift; donatio relata, a gift
made with reference to some service already done, (Fisk
v. Flores, 43 Tex. 340;) donatio stricta et coarctura, a restricted gift, as an estate tail.
DONATIO INOFFICIOSA. An inofficious (undutiful) gift; a gift of so great a part of the donor's property that the birthright portion of his
heirs is diminished. Mackeld.Rom.Law, § 469.
DONATIO INTER VIVOS. A gift between the
living. The ordinary kind of gift by one person
to another. 2 Kent, Comm. 438; 2 Steph.Comm.
102. A term derived from the civil law. Inst. 2,
7, 2. A donation inter vivos (between living persons) is an act by which the donor divests himself
at present and irrevocably of the thing given in
favor of the donee who accepts it. Succession
of Brand, 162 La. 880, 111 So. 267, 268.
There are three kinds of "donations inter vivos", namely,
"gratuitous donations", "onerous donations", and "remunerative donations", the first being based on mere liberality, the second being burdened with charges imposed
by the donee, and the third being recompense for services
rendered. White v. White, La.App., 7 So.2d 255, 257.
DONATIO MORTIS CAUSA. A gift made by
a person in sickness, who, apprehending his dissolution near, delivers, oar causes to be delivered,
to another the possession of any personal goods,
to keep as his own in case of the donor's de c ease.
2 Bl.Comm. 514. The civil law defines it to be
a gift under apprehension of death; as when anything is given upon condition that, if the donor
dies, the donee shall possess it absolutely, or return it if the donor should survive or should repent of having made the gift, or if the donee
should die before the donor. Adams v. Nicholas,
1 Miles (Pa.) 109-117. A gift in view of death is
one which is made in contemplation, fear, or peril
of death, and with intent that it shall take effect
only in case of the death of the giver. Prendergast v. Drew, 103 Conn. 88, 130 A. 75, 76. A donation mortis causa (in prospect of death) is an
act to take effect when the donor shall no longer
exist, by which he disposes of the whole or a part
of his property, and which is revocable.
DONATIO NON PRIESUMITUR. A gift is not
presumed. Jenk.Cent. 109.
DONATIO PERFICITUR POSSESSIONE ACCIPIENTIS. A gift is perfected [made complete] by
the possession of the receiver. Jenk.Cent. 109,
case 9. A gift is incomplete until possession is delivered. 2 Kent, Comm. 438; Ewing v. Ewing, 2
Leigh (Va.) 337.
DONATIO PRINCIPIS INTELLIGITUR SINE
PRAEJUDICIO TERTII. Da y .Ir.K.B. 75. A gift of
the prince is understood without prejudice to a
third party.
DONATIO PROPTER NUPTIAS. A gift on account of marriage. In Roman law, the bridegroom's 'gift to the bride in anticipation of mar
riage and to secure her dos was called "donatio
575
DONATION
ante nuptias;" but by an ordinance of Justinian
but a 'deed done' is not an 'instrument done,'—it
is an 'act done;' and therefore these words, `made
and done,' apply to acts, as well as deeds." Lord
Brougham, 4 Bell, App.Cas. 38.
such gift might be made after as well as before
marriage, and in that case it was called "donatio
propter nuptias." Mackeld.Rom.Law, § 572.
DONATION. A gift. Mills v. Stewart, 76 Mont.
429, 247 P. 332, 334, 47 A.L.R. 424; Darnell v. Equity Life Ins. Co.'s Receiver, 179 Ky. 465, 200 S.
W. 967, 972; Fairfield v. Huntington, 23 Ariz. 528,
205 P. 814, 815, 22 A.L.R. 1438. United Brotherhood of Carpenters and Joiners of America v.
Rogers, 165 Okl. 131, 25 P.2d 57. See Donatio.
As sometimes used, however, the term does not necessarily mean an absolute gift without any condition or consideration whatever. International & G. N. Ry. Co. v. Anderson County, Tex.Civ.App., 174 S.W. 305, 315.
A donation of real estate is certainly not a mortgage or
privilege, but is a transfer of property of a peculiar kind,
subject to revocation, sometimes without cause, and always
subject to reduction at the suit of the forced heirs of the
donor. Bank of Delphi v. Lea, 139 La. 730, 72 So. 187, 188.
In ecclesiastical law. A mode of acquiring a
benefice by deed of gift alone, without presentation, institution, or induction. 3 Steph.Comm. 81.
DONATION LANDS. Lands granted from the
public domain to an individual as a bounty, gift,
or donation; particularly, in early Pennsylvania
history, lands thus granted to soldiers of the revolutionary war.
DONATIONUM ALIA PERFECTA, ALIA INCEPTA ET NON PERFECTA, UT SI DONATIO
LECTA FUIT ET CONCESSA, AO TRADITIO
NONDUM FUERIT SUBSECUTA. Some gifts
are perfect, others incipient and not perfect as if
a gift were read and agreed to, but delivery had
not then followed. Co.Litt. 56.
DONATIVE ADVOWSON. In ecclesiastical law.
A species of advowson, where the benefice is conferred on the clerk by the patron's deed of donation, without presentation, institution, or induction. 2 B1.Comm. 23; Termes de la Ley.
DONATIVE TRUST. May be created by transfer
of property in trust as gift for benefit of another
person or by proper declaration of legal owner of
property that he will hold it in trust for another's
benefit and does not require payment of any consideration by the beneficiary. Elbert v. WaplesPlatter Co., Tex.Civ.App., 156 S.W.2d 146, 150, 151.
DONATOR. A donor; one who makes a gift,
(donatio.)
DONATOR NUNQUAM DESINIT POSSIDERE,
ANTEQUAM DONATORIUS INCIPIAT POSSIDERE. The donor never ceases to possess, until
the donee begins to possess. Bract. fol. 41b;
Dyer 281.
DONATORIUS. A donee; a person to whom a
gift is made; a purchaser. Bract. fol. 13, et seq.
DONATORY. The person on whom the king bestows his right to any forfeiture that has fallen
to the crown.
DONE. Distinguished from "made." "A 'deed
made' may no doubt mean an 'instrument made;'
DONEC. Lat. As long as; while; until; within
a certain time.
DONEC PROBETUR IN CONTRARIUM. [Given] until proof to the contrary. 19 C.J. p. 445.
DONEE. One who is invested with a power of
appointment; the party executing a power; otherwise called the "appointer." 4 Kent, Comm. 316.
One to whom a gift is made or a bequest given.
He to whom lands or tenements are given in tail.
Litt. § 57. In old English law. He to whom
lands were given; the party to whom a donatio
was made.
DONIS, STATUTE DE. See De Donis, the Statute.
DONNEUR D'AVAL. In French law. Guarantor
of negotiable paper other than by indorsement.
DONOR. The party conferring a power. 4 Kent,
Comm. 316. One who makes a gift. One who
creates a trust. Ulmer v. Fulton, 129 Ohio St.
323, 195 N.E. 557, 97 A.L.R. 1170. He who gives
lands or tenements to another in tail. Litt. § 57;
Termes de la Ley. In old English law. He by
whom lands were given to another; the party
making a donatio.
DONUM. Lat. In the civil law. A gift; a free
gift. Calvin.
The difference between donum and munus is said to be
that donum is more general, while munus is specific. Vicat, Voc.Jur. ; Calvin.
DOOM. In Scotch law. Judicial sentence, or
judgment. The decision or sentence of a court
orally pronounced by an officer called a "dermaster" or "deemster." In modern usage, criminal
sentences still end with the words "which is pronounced for doom."
DOOMSDAY-BOOK. See Domesday-Book.
DOOR. The place of usual entrance in a house, or
into a room in the house. State v. McBeth, 49
Kan. 584, 31 P. 145.
DOPE. Any thick liquid or pasty preparation, as
of opium for medicinal purposes, of grease for
a lubricant, etc., and in popular meaning signifies
opium derivative, ranging from harmless concoction to most powerful narcotics containing
opium as ingredient. Abbott v. Vinson, 230 Ky.
786, 20 S.W.2d 995, 996.
DORMANT. Literally, sleeping; hence inactive;
in abeyance; unknown; concealed; silent.
DORMANT CLAIM. One which is in abeyance.
DORMANT EXECUTION. One which a creditor
delivers to the sheriff with directions to levy only,
and not to sell, until further orders, or until a
576
DOTE
junior execution is received. See Storm v. Woods,
11 Johns. (N.Y.) 110; Kimball v. Munger, 2 Hill
( N.Y.) 364.
which her husband may have endowed her on the
day of marriage. Co.Litt. 336. Dower, at common law. 2 Bl.Comm. 134.
DORMANT JUDGMENT. One which has not been
satisfied, nor extinguished by lapse of time, but
which has remained so long unexecuted that execution cannot now be issued upon it without first
reviving the judgment, or one which has lost its
lien on land from the failure to issue execution on
it or take other steps to enforce it within the time
limited by statute. 1 Black, Judgm., 2d Ed., § 462;
Draper v. Nixon, 93 Ala. 436, 8 So. 489; General
Electric Co. v. Hurd, C.C., 171 F. 984; Burlington
State Bank v. Marlin Nat. Bank, Tex.Civ.App., 207
S.W. 954, 956.
DOS RATIONABILIS VEL LEGITIMA EST CUJUSLIBET MULIERIS DE QUOCUNQUE TENEMENTO TERTIA PARS OMNIUM TERRARUM
ET TENEMENTORUM, QUIE VIR SUUS TENUIT
IN DOMINIO SUO UT DE FEODO, ETC. Co.Litt.
336. Reasonable or legitimate dower belongs to
every woman of a third part of all the lands and
tenements of which her husband was seised in
his demesne, as of fee, etc.
DOSSIER. Fr. A brief; a bundle of papers.
DOT. (A French word, adopted in Louisiana.)
The fortune, portion, or dowry which a woman
brings to her husband by the marriage. Buisson
v. Thompson, 7 Mart.La., N.S., 460.
DORMANT PARTNER. See Partners.
DORMITORY. A sleeping room or building containing a series of sleeping rooms, a sleeping
apartment capable of containing many beds, especially one connected with a college or boarding
school. Russell v. Trustees of Purdue University,
201 Ind. 367, 168 N.E. 529, 534, 65 A.L.R. 1384.
DORMIUNT ALIQUANDO LEGES, NUNQUAM
MORIUNTUR. 2 Inst. 161. The laws sometimes
sleep, never die.
DORSUM. Lat. The back. In dorso recordi, on
the back of the record. 5 Coke, 44b.
DORTURE. (Contracted from dormitor y .)
dormitory of a convent; a place to sleep in.
A
DOS. In Roman . law. Dowry; a wife's marriage
portion; all that property which on marriage is
transferred by the wife herself or by another to
the husband with a view of diminishing the burden
which the marriage will entail upon him. It is of
three kinds. Profectitia dos is that which is derived from the property of the wife's father or
paternal grandfather. That dos is termed adventitia which is not profectitia in respect to its
source, whether it is given by the wife from
her own estate or by the wife's mother or a third
person. It is termed receptitia dos when accompanied by a stipulation for its reclamation by the
constitutor on the termination of the marriage.
See Mackeld.Rom.Law, §§ 561, 563; Vicat; Calvinus, Lex.; Du Cange ; 1 Washb.R.P. 147.
In old English law. The portion given to the
wife by the husband at the church door, in consideration of the marriage; dower; the wife's
portion out of her deceased husband's estate in
case he had not endowed her. 1 Washb.R.P. 147;
1 Cruise, Dig. 152; Park, Dower.
DOS DE DOTE PETI NON DEBET. Dower ought
not to be demanded of dower. Co.Litt. 31; 4 Coke,
122b. A widow is not dowable of lands assigned
to another. woman in dower. 1 Hill.Real Prop.
135; 4 Dane, Abr. 671; 1 Washb.R.P. 209; Brooks
v. Everett, 13 Allen (Mass.) 459.
DOTAL. Relating to the dos or portion of a woman; constituting her portion; comprised in her
portion.
DOTAL PROPERTY. In the civil law, in Louisiana. Property which the wife brings to the husband to assist him in bearing the expenses of the
marriage establishment. Extradotal property,
otherwise called "paraphernal property," is that
which forms no part of the dowry. Fleitas v.
Richardson, 13 Sup.Ct. 495, 147 U.S. 550, 37 L.Ed.
276. See, also, Community.
DOTALITIUM. In canon and feudal law. Dower.
Spelman, voc. "Doarium"; Calvin.; 2 Bl.Comm.
129. Used as early as A.D. 841.
DOTATION. The act of giving a dowry or portion; endowment in general, including the endowment of a hospital or other charitable institution.
DOTE, n. In Spanish law. The marriage portion of a wife. White, New Recop. b. 1, tit. 6,
c. 1. The property which the wife gives to the
husband on account of marriage, or for the purpose of supporting the matrimonial expenses. Id.
b. 1, tit. 7, c. 1, § 1; Schm.Civil Law, 75; Cutter
v. Waddingham, 22 Mo. 254; Hart v. Burnett, 15
Cal. 566; Las Partidas, 4. 11. 1; Escriche, Dic.
Raz. Dote.
DOTE, v. To be besotted, delirious, silly, or insane. Gates v. Meredith, 7 Ind. 441.
DOS RATIONABILIS. A reasonable marriage
portion. A reasonable part of her husband's estate, to which every widow is entitled, of lands of
Black's Law Dictionary Revised 4th Ed.-37
DOTAGE. That feebleness of the mental faculties which proceeds from old age. It is a diminution or decay of that intellectual power which
was once possessed. It is the slow approach of
death; of that irrevocable cessation, without hurt
or disease, of all the functions which once belonged to the living animal. The external functions gradually cease; the senses waste away by
degrees; and the mind is imperceptibly visited by
decay. Owing's Case, 1 Bland (Md.) 389, 17 Am.
Dec. 311.
DOTE ASSIGNANDA. A writ which lay for a
widow, when it was judicially ascertained that a
tenant to the king was seised of tenements in fee
577
DOTE
or fee-tail at the day of his death, and that he held
of the king in chief. In such case the widow might
come into chancery, and then make oath that she
would not marry without the king's leave, and
then she might have this writ. These widows
were called the "king's widows." Jacob; Holthouse.
and to signify to the ordinary that if he neither
perform the thing enjoined, nor appear nor show
cause against it, he himself, in his court of
audience, will forthwith proceed to do the justice that is due. Cowell.
DOTE UNDE NIHIL HABET. A writ which lies
for a widow to whom no dower has been assigned.
3 Bl.Comm. 182. By 23 & 24 Vict. c. 126, an ordinary action commenced by writ of summons has
taken its place; but it remains in force in the
United States, and under the designation of "dower unde nihil habet" (see that title), I is the form
in common use for the recovery of dower at law.
1 Washb.R.P. 290; 4 Kent 63.
DOUBLE CREDITOR. One who has a lien on two
funds. Newby v. Fox, 90 Kan. 317, 133 P. 890, 47
L.R.A.(N.S.) 302.
DOTI LEX FAVET; PREMIUM PUDORIS EST;
IDEO PARCATUR. Co.Litt. 31; Branch, Princ.
The law favors dower; it is the reward of chastity; therefore let it be preserved.
DOTIS ADMINISTRATIO. Admeasurement of
dower, where the widow holds more than her
share, etc.
DOTISSA. A dowager.
DOUBLE. - Twofold; acting in two capacities or
having two aspects; multiplied by two. This term
has ordinarily the same meaning in law as in
popular speech. The principal compound terms
into which it enters are noted below.
DOUBLE ASSESSMENT. The imposition of same
tax, by same taxing power, upon same subject
matter. Aragon v. Empire Gold Mining & Milling
Co., 47 N.M. 299, 142 P.2d 539, 541.
DOUBLE ADULTERY. Adultery committed by
two persons each of whom is married to another
as distinguished from "single" adultery, where one
of the participants is unmarried. Hunter v. U. S.,
1 Pin. (Wis.) 91, 39 Am.Dec. 277.
DOUBLE AVAIL OF MARRIAGE. In Scotch law.
Double the ordinary or single value of a marriage.
Bell. See Duplex Valor Maritagii.
DOUBLE BOND. In Scotch law. A bond with a
penalty, as distinguished from a single bond. 2
Kames, Eq. 359.
DOUBLE COMPLAINT, DOUBLE QUARREL, or
DUPLEX QUERELA. A grievance made known
by a clerk or other person, to the archbishop of
the province, against the ordinary, for delaying or
refusing to do justice in some cause ecclesiastical,
as to give sentence, institute a clerk, etc. It is
termed a "double complaint," because it is most
commonly made against both the judge and him
at whose suit justice is denied or delayed; the
effect whereof is that the archbishop, taking notice of the delay, directs his letters, under his au.thentical seal, to all clerks of his province, commanding them to admonish the ordinary, within
a certain number of days, to do the justice required, or otherwise to appear before him or his
official, and there allege the ca use of his delay;
DOUBLE COSTS. See Costs.
DOUBLE DAMAGES. See Damages.
DOUBLE EAGLE. A gold coin of the United
States of the value of twenty dollars.
DOUBLE ENTRY. A system of mercantile bookkeeping, in which the entries in the day-book, etc.,
are posted twice into the ledger. First, to a personal account, that is, to the account of the person with whom the dealing to which any given
entry refers has taken place; secondly, to an impersonal account, as "goods." Mozley & Whitley.
DOUBLE FINE. In old English law. A fine sur
done grant et render was called a "double fine,"
because it comprehended the fine sur cognizance
de droit come ceo, etc., and the fine sur concessit.
2 Bl.Comm. 353.
DOUBLE FLEMISH BOND. An arrangement
whereby two stretchers are followed by a header
throughout the entire course, while on the succeeding course the header is centered over the vertical
joint between the two stretchers of the course below. Seglin Const. Co. v. State, Ct.C1., 22 N.Y.S.
2d 94, 96.
DOUBLE GLAZING. That by which two panes of
glass are set in each section of the window sash
instead of one. Johnson v. Olsen, 134 Minn. 53,
158 N.W. 805, 806.
DOUBLE HOUSE. A building having accommodations for two families, divided vertically instead
of horizontally. Donnelly v. Spitza, 246 Mich. 284,
224 N.W. 396. Schwarzer v. Calcasieu Lumber Co.,
Tex.Civ.App., 176 S.W.2d 597, 599.
DOUBLE INSURANCE. Double insurance is
where divers insurances are made upon the same
interest in the same subject against the same risks
in favor of the same assured, in proportions exceeding the value. 1 Phill.Ins. §§ 359, 366. A
double insurance exists where the same person is
insured by several insurers separately in respect
to the same subject and interest. Insurance Co.
v. Gwathmey, 1 S.E. 209, 82 Va. 923; Lowell Mfg.
Co. v. Safeguard F. Ins. Co., 88 N.Y. 597; Cherewaty v. Grangers Mut. Fire Ins. Co., 181 Md. 149,
28 A.2d 824, 825; Broune v. Franklin Fire Ins. Co.,
225 Mo.App. 665, 37 S.W.2d 977, 981.
DOUBLE JEOPARDY. Common-law and constitutional prohibition against "double jeopardy" refers not to the same offense eo nomine but to the
same crime, transaction or omission. Driggers v.
State, 137 Fla. 182, 188 So. 118, 120. A second
578
DOUBT
prosecution after a first trial for the same offense.
People ex rel. Rozea v. Warden of Queens County
Jail, 43 N.Y.S.2d 211, 213.
a new result or the production of a new article.
De Lamar v. De Lamar Min. Co., C.C.Idaho, 110 F.
542.
DOUBLE PATENTING. The test respecting
"double patenting" is whether the claims of both
patents, when properly construed in the light of
the descriptions given, define essentially the same
things. Waterbury Buckle Co. v. G. E. Prentice
Mfg. Co., D.C.Conn., 294 F. 930, 937. Occurs only
when claims of two patents issued to one applicant
are the same. Scharf v. Weinfeld & Kahn, D.C.
N.Y., 31 F.Supp. 689, 692.
The imposition of the same tax, by the same taxing power, upon the same subject matter. City
of Philadelphia v. Heinel Motors, 16 A.2d 761, 764,
142 Pa.Super. 493. People ex rel. Toman v. Advance Heating Co., 376 Ill. 158, 33 N.E.2d 206, 209,
210.
DOUBLE VALUE. In English law. This is a
penalty on a tenant holding over after his landlord's notice to quit. By 4 Geo. II. c. 28, § 1, it is
enacted that if any tenant for life or years hold
over any lands, etc., after the determination of
his estate, after demand made, and notice in writing given, for delivering the possession thereof,
by the landlord, or the person having the reversion or remainder therein, or his agent thereunto
lawfully authorized, such tenant so holding over
shall pay to the person so kept out of possession
at the rate of double the yearly value of the
lands, etc., so detained, for so long a time as the
same are detained. See Woodf. Landl. & Ten.
(12th Ed.) 717, et seq.
DOUBLE PLEA, DOUBLE PLEADING. See Duplicity; Plea; Pleading.
DOUBLE VOUCHER. This was when a common
recovery was had, and an estate of freehold was
first conveyed to any indifferent person against
whom the prcecipe was brought, and then he
vouched the tenant in tail, who vouched over the
common vouchee. For, if a recovery were had
immediately against a tenant in tail, it barred
only the estate in the premises of which he was
then actually seised, whereas, if the recovery
were had against another person, and the tenant
in tail were vouchee, it barred every latent right
and interest which he might have in the lands
recovered. 2 Bl.Comm. 359.
DOUBLE POSSIBILITY. A possibility upon a
possibility. 2 Bl.Comm. 170.
DOUBLE RECOVERY. Recovery which represents more than the total maximum loss which all
parties have sustained. Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168, 187 N.W. 806, 808.
DOUBLE RENT. In English law. Rent payable
by a tenant who continues in possession after the
time for which he has given notice to quit, until
the time of his quitting possession. St. 11 Geo.
II. c. 19.
DOUBLE TAX RULE. Collections made in taxable year on sales made in prior years, and which
had already been taxed in prior years. HooverBond Co. v. Denman, C.C.A.Ohio, 59 F.2d 909, 910.
DOUBLE TAXATION. The taxing of the same
item or piece of property twice to the same person, or taxing it as the property of one person
and again as the property of another; but this
does not include the imposition of different taxes
concurrently on the same property (e. g., a city
tax and a school tax), nor the taxation of the
same piece of property to different persons when
they hold different interests in it or when it represents different values in their hands, as when
both the mortgagor and mortgagee of property
are taxed in respect to their interests in it, or
when a tax is laid upon the capital or property
of a corporation and also upon the value of its
shares of stock in the hands of the separate stockholders. Cook v. Burlington, 59 Iowa, 251, 13 N.
W. 113, 44 Am.Rep. 679. "Double taxation" means
taxing twice for the same purpose in the same
year some of the property in the territory in
which the tax is laid without taxing all of it. Diefendorf v. Gallet, 51 Idaho 619, 10 P.2d 307, 315;
Amarillo-Pecos Valley Truck Lines v. Gallegos, 44
N.M. 120, 99 P.2d 447, 451.
DOUBLE USE. In patent law. An application of
a principle or process, previously known and applied, to some new use, but which does not lead to
DOUBLE WASTE. When a tenant bound to repair suffers a house to be wasted, and then unlawfully fells timber to repair it, he is said to
commit double waste. Co. Litt. 53.
DOUBLE WILL. A will in which two persons
join, each leaving his property and estate to the
other, so that the survivor takes the whole.
Evans v. Smith, 28 Ga. 98, 73 Am.Dec. 751.
DOUBLES. Letters-patent. Cowell.
DOUBT, v. To question or hold questionable.
Claussen v. State, 21 Wyo. 505, 133 P. 1055, 1056.
DOUBT, n. Uncertainty of mind; the absence
of a settled opinion or conviction; the attitude
of mind towards the acceptance of or belief in
a proposition, theory, or statement, in which the
judgment is not at rest but inclines alternately
to either side. Rowe v. Baber, 93 Ala. 422, 8 So.
865; Smith v. Railway Co., 143 Mo. 33, 44 S.W.
718; West Jersey Traction Co. v. Camden Horse
R. Co., 52 N.J.Eq. 452, 29 A. 333. An equipoise of
the mind arising from an equality of contrary
reasons. Ayliffe, Pand. 121.
Reasonable Doubt
This is a term often used, probably pretty well
understood, but not easily defined. It does not
mean a mere possible doubt, because everything
relating to human affairs, and depending on moral
evidence, is open to some possible or imaginary
doubt. It is that state of the case which, after
579
DOUBT
the entire comparison and consideration of all the
evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding
conviction to a moral certainty of the truth of
the charge. If upon proof there is reasonable
doubt remaining, the accused is entitled to the
benefit of it by an acquittal; for it is not sufficient to establish a probability, though a strong
one, arising from the doctrine of chances, that
the fact charged is more likely to be true than
the contrary, but the evidence must establish the
truth of the fact to a reasonable and moral certainty,—a certainty that convinces and directs
the understanding and satisfies the reason and
judgment of those who are bound to act conscientiously upon it. This is proof beyond reasonable doubt; because if the law, which mostly
depends upon considerations of a moral nature,
should go further than this, and require absolute
certainty, it would exclude circumstantial evidence altogether. Egan v. U. S., 52 App.D.C. 384,
287 F. 958.
Proof "beyond a reasonable doubt" is not beyond all possible or imaginary doubt, but such
proof as precludes every reasonable hypothesis
except that which it tends to support. It is proof
"to a moral certainty,"—such proof as satisfies
the judgment and consciences of the jury, as
reasonable men, and applying their reason to the
evidence before them, that the crime charged has
been committed by the defendant, and so satisfies
them as to leave no other reasonable conclusion
possible. State v. Koski, 100 W.Va. 98, 130 S.E.
100, 101.
The difficulty of a satisfactory definition is discussed in
57 Am.L.Reg. 419, where C. J. Shaw's definition is criticized and that in Corn. v. Costley, 118 Mass. 1, supra, is
suggested as better. And in Hopt v. Utah, 120 U.S. 430,
7 S.Ct. 614, 30 L.Ed. 708, it was approved as contrasted
with C. J. Shaw's definition.
A "reasonable doubt" is such a doubt as would
cause a reasonable and prudent man in the graver and more important affairs of life to pause and
hesitate to act upon the truth of the matter charged. But a reasonable doubt is not a mere possibility of innocence, nor a caprice, shadow, or
speculation as to innocence not arising out of the
evidence or the want of it. State v. Perkins, 21
N.M. 135, 153 P. 258, 259.
A "reasonable doubt" is such a doubt as an upright man
might entertain in an honest investigation after truth.
Peterson v. State, 47 Ga. 524(5); Lochamy v. State, 152
Ga. 235, 109 S.E. 497.
A "reasonable doubt" is one for which a reason can be
given. State v. Jefferson, 43 La.Ann. 995, 10 So. 199.
Contra: Abbott v. Territory, 20 Okl. 119, 94 P. 179, 16 L.
R. A. ,N. S. , 260, 129 Am. St. Rep. 818.
The term needs no definition. People v. Rogers, 324 Ill.
224, 154 N.E. 909, 913.
DOUBTFUL PAPER. "Slow" paper and "doubtful paper" are not synonymous. American Nat.
Bank of Portsmouth v. Ames, 169 Va. 711, 194
S.E. 784, 793.
DOUBTFUL TITLE.
One as to the validity of
which there exists some doubt, either as to matter of fact or of law; one which invites or exposes the party holding it to litigation. Barrett
v. McMannis, 153 Kan. 420, 110 P.2d 774, 778;
Black v. American International Corporation, 264
Pa. 260, 107 A. 737, 739. Distinguished from a
"marketable" title, which is of such a character
that the courts will compel its acceptance by a
purchaser who has agreed to buy the property or
has bid it in at public sale. Herman v. Somers,
(
158 Pa. 424, 27 A. 1050, 38 Am.St.Rep. 851.
DOUN, L. Fr. A gift. Otherwise written "don"
and "done." The thirty-fourth chapter of Britton
is entitled "De Douns."
DOVE.
Doves are animals ferce naturce, and not
the subject of larceny unless they are in the owner's custody. Corn. v. Chace, 9 Pick., Mass. 15, 19
Am.Dec. 348; Ruckman v. Outwater, 28 N.J.Law
581.
DOVETAIL.
A structure in the form of a tenon
having oppositely-flared edges similar in shape to
the tail of a bird. Cheney Co. v. Cunningham,
D.C.Pa., 37 F.Supp. 224, 226.
DOWABLE.
Subject to be charged with dower;
as dowable lands.
Entitled or entitling to dower. Thus, a dowable
interest in lands is such as entitles the owner to
have such lands charged with dower.
DOWAGER.
A widow who is endowed, or who
has a jointure in lieu of dower. In England, this
is a title or addition given to the widows of
princes, dukes, earls, and other noblemen, to distinguish them from the wives of the heirs, who
have right to bear the title. 1 Bl.Comm. 224.
DOWAGER—QUEEN. The widow of the king.
As such she enjoys most of the privileges belonging to her as queen consort. It is not treason to
conspire her death or violate her chastity, because the succession to the crown is not thereby
endangered. No man, however, can marry her
without a special license from the sovereign, on
pain of forfeiting his lands or goods. 1 Bl.Comm.
233.
DOWER. The provision which the law makes
for a widow out of the lands or tenements of her
husband, for her support and the nurture of her
children. Co. Litt. 30a; 2 Bl.Comm. 130; In re
Miller's Estate, 44 N.M. 214, 100 P.2d 908, 911. A
species of life-estate which a woman is, by law,
entitled to claim on the death of her husband, in
the lands and tenements of which he was seised
in fee during the marriage, and which her issue,
if any, might by possibility have inherited. 1
Steph.Comm. 249; 2 Bl.Comm. 129; Cruise, Dig.
tit. 6; 2 Crabb, Real Prop. p. 124, § 1117; 4 Kent,
Comm. 35. See Inchoate Dower.
"Dower" is the life estate to which every married woman
is entitled on death of her husband, intestate, or, in case
she dissents from his will, one-third in value of all lands
of which husband was beneficially seized in law or in fact.
at any time during coverture. McGehee v. McGehee, 189 N.
C. 558, 127 S.E. 684, 687. McLawhorn v. Smith, 211 N.C.
513, 191 S.E. 35, 38, 110 A.L.R. 980.
The term, both technically and in popular acceptation, has reference to real estate exclusive-
580
DRACO
DOWRESS. A woman entitled to dower; a tenant in dower. 2 P.Wms. 707.
ly. Shackelford v. Shackelford, 181 Va. 869, 27
S.E.2d 354, 359.
"Dower," in modern use, is distinguished from "dowry."
The former is a provision for a widow on her husband's
death ; the latter is a bride's portion on her marriage.
Wendler v. Lambeth, 163 Mo. 428, 63 S.W. 684.
DOWRY. The property which a woman brings
to her husband in marriage; now more commonly called a "portion."
This word expresses the proper meaning of the "dos" of
the Roman, the "dot" of the French, and the "dote" of the
DOWER AD OSTIUM ECCLESLE. Dower at
the church door or porch. An ancient kind of
dower in England, where a man, (being tenant in
fee-simple, of full age,) openly at the church door,
where all marriages were formerly celebrated,
after affiance made and troth plighted between
them, endowed his wife with the whole of his
lands, or such quantity as he pleased, at the same
time specifying and ascertaining the same. Litt.
§ 39; 2 Bl.Comm. 133.
Spanish, law, but is a very different thing from "dower,"
with which it has sometimes been confounded. See Co.Litt.
31; Dig. 23, 3, 76; Code 5, 12, 20; Buard v. De Russy, 6
Rob., La., 111; Gates v. Legendre, 10 Rob., La., 74; Cutter v. Waddingham, 22 Mo. 254.
By dowry, in the Louisiana Civil Code (see article 2337), is meant the effects which the wife
brings to the husband to support the expenses
of marriage. It is given to the husband, to be
enjoyed by him so long as the marriage shall
last, and the income of it belongs to him. He
alone has the administration of it during marriage, and his wife cannot deprive him of it. The
real estate settled as dowry is inalienable during
marriage, unless the marriage contract contains
a stipulation to the contrary. De Young v. De
Young, 6 La.Ann. 786.
DOWER BY COMMON LAW. The ordinary kind
of dower in English and American law, consisting
of a life interest in one-third of the lands of which
the husband was seised in fee at any time during
the coverture. Litt. § 36; 2 Bl.Comm. 132; 2
Steph.Comm. 302; 4 Kent, Comm. 35.
DOWER BY CUSTOM. A kind of dower in England, regulated by custom, where the quantity
allowed the wife differed from the proportion of
the common law; as that the wife should have
half the husband's lands; or, in some places, the
whole; and, in some, only a quarter. 2 Bl.Comm.
132; Litt. § 37.
DOWER DE LA PLUS BELLE (DE LA PLUIS
BEALE). L. Fr. Dower of the fairest [part.]
A species of ancient English dower, incident to
the old tenures, where there was a guardian in
chivalry, and the wife occupied lands of the heir
as guardian in socage. If the wife brought a
writ of dower against such guardian in chivalry,
he might show this matter, and pray that the
wife might be endowed de la plus belle of the
tenement in socage. Litt. § 48. This kind of
dower was abolished with the military tenures.
2 Bl.Comm. 132.
DOWER EX ASSENSU PATRIS. Dower by the
father's assent. A species of dower ad ostium
ecclesice, made when the husband's father was
alive, and the son, by his consent expressly given, endowed his wife with parcel of his father's
lands. Litt. § 40; 2 Bl.Comm. 133; Grogan v.
Garrison, 27 Ohio St. 61.
DOWER UNDE NIIIIL HABET. A writ of right
which lay for a widow to whom no dower had
been assigned.
DOWLE STONES. Stones dividing lands, etc.
Cowell.
DOWMENT. In old English law. Endowment;
dower. Grogan v. Garrison, 27 Ohio St. 61.
DOYLE RULE. A formula for computing the
board measure from the dimensions of a log.
Peter v. Owl Bayou Cypress Co., 137 La. 1067, 69
So. 840, 841. The rule is to deduct four inches
from the diameter of the log, as an allowance for
slab, square one-quarter of the remainder, and
multiply the result by the length of the log in
feet. Morrison v. Pickrell Walnut Co., 199 Ill.
App. 175, 176.
DOZE. To slumber or sleep lightly. St. Paul
Fire & Marine Ins. Co. of St. Paul, Minn., v.
Kendle, 163 Ky. 146, 173 S.W. 373, 374.
DOZEIN, L. Fr. Twelve; a person twelve years
of age. St. 18 Edw. II.; Barring. Ob. St. 208.
DOZEN PEERS. Twelve peers assembled at the
instance of the barons, in the reign of Henry III.,
to be privy counselors, or rather conservators of
the kingdom.
DR. An abbreviation for "doctor;" also, in commercial usage, for "debtor," indicating the items
or particulars in a bill or in an account-book
chargeable against the person to whom the bill is
rendered or in whose name the account stands,
as opposed to "Cr." ("Credit" or "creditor"),
which indicates the items for which he is given
credit. Jaqua v. Shewalter, 10 Ind.App. 234, 37
N.E. 1072.
DRACHMA. A term employed in old pleadings
and records, to denote a groat. Townsh. P. 180.
DOWNWARD COURSE. Term "dip" is miners'
word synonymous with expression "downward
course" in mining act, and means direction of
ore vein or lode in its descent into earth at right
angles to its strike or course. 30 U.S.C.A. § 26.
Brugger v. Lee Yim, 12 Cal.App.2d 38, 55 P.2d
564, 570.
An Athenian silver coin, of the value of about
fifteen cents.
DRACO REGIS. The standard, ensign, or military colors borne in war by the ancient kings of
England, having the figure of a dragon painted
thereon.
581
DRACONIAN
DRACONIAN LAWS. A code of laws prepared
by Draco, the celebrated lawgiver of Athens.
These laws were exceedingly severe, and the term
is now sometimes applied to any laws of unusual
harshness.
DRAFF. Waste matter, sweepings, refuse, lees,
or dregs. In weighing commodities the term signifies dust and dirt, and not what is generally
meant by "draught" or "draft" (q. v.). 28 C.J.S.
p. 227.
DRAFT. The common term for a bill of exchange; as being drawn by one person on another. Hinnemann v. Rosenback, 39 N.Y. 100;
Ennis v. Coshocton Nat. Bank, 27 Ga.App. 479,
108 S.E. 811.
An order for the payment of money drawn
by one person on another. It is said to be a nomen generalissimum, and to include all such orders. Wilson v. Buchenau, D.C.Cal., 43 F.Supp.
272, 275.
The term includes a cashier's check, People v. Miller, 278
Ill. 490, 116 N.E. 131, 138 L.R.A.1917E, 797; Advance-Rumely Thresher Co. v. Hess, 85 Mont. 293, 279 P. 236, 237;
but a draft is distinguishable from a cashier's check in,
that a draft is a bill of exchange payable on demand purporting to be drawn on deposit while a cashier's check is
a primary obligation of a bank which issues it and constitutes its written promise to pay it on demand. In re
Bank of U. S., 277 N.Y.S. 96, 243 App.Div. 287. It is distinguished from "check" by the fact that in a draft the
drawer is a bank, while in the ordinary check the drawer
is an individual. Leach v. Mechanics' Say . Bank, 202 Iowa,
899, 211 N.W. 506, 508, 50 A.L.R. 388.
A tentative, provisional, or preparatory writing out of any document (as a will, contract,
lease, etc.) for purposes of discussion and correction, which is afterwards to be copied out in its
final shape.
Also, a small arbitrary deduction or allowance
made to a merchant or importer, in the case of
goods sold by weight or taxable by weight, to
cover possible loss of weight in handling or from
differences in scales. Marriott v. Brune, 9 How.
633, 13 L.Ed. 282; Seeberger v. Mfg. Co., 15 S.
Ct. 583, 157 U.S. 183, 39 L.Ed. 665; Napier v.
Barney, 17 Fed.Cas. 1149.
A draft in stockyard parlance is all those animals in one consignment weighed as a single
sales or purchase classification. Acker v. U. S., D.
C.Ill., 12 F.Supp. 776, 780.
DRAFTSMAN. Any , one who draws or frames
a legal document, e. g., a will, conveyance, pleading, etc.
In the marine engineering profession, any of
various men who design the several parts of vessels and other machinery in the different departments. Ex parte Aird, D.C.Pa., 276 F. 954, 956.
the forcible intervention of states to secure the
payment of public debts due to their citizens from
foreign states is unjustifiable and dangerous to
the security and peace of the nations of South
America. The subject was brought before the
Conference by the United States and a Convention was adopted in which the contracting powers agreed, with some restrictive conditions, not
to have recourse to armed force for the recovery of contract debts claimed by their nationals
against a foreign state. Higgins, 184-197. See
Calvo Doctrine.
DRAGOMAN. An interpreter employed in the
east, and particularly at the Turkish court.
DRAIN, v. To conduct water from one place to
another, for the purpose of drying the former.
To make dry; to draw off water; to rid land of
its superfluous moisture by adapting or improving natural water courses and supplementing
them, when necessary, by artificial ditches. People v. Parks, 58 Cal. 639.
To "drain," in its larger sense, includes not only the
supplying of outlets and channels to relieve the land from
water, but also the provision of ditches, drains, and
embankments to prevent water from accumulating. Holt v.
State, Tex.Civ.App., 176 S.W. 743, 746; In re Mississippi
and Fox River Drainage Dist., 270 Mo. 157, 192 S.W. 727,
731; Pioneer Real Estate Co. v. City of Portland, 119
Or. 1, 247 P. 319, 323.
DRAIN, n. A trench or ditch to convey water
from wet land; a channel through which water
may flow off.
The word has no technical legal meaning. Any hollow
space in the ground, natural or artificial, where water is
collected and passes off, is a ditch or drain. Sherrod v.
Battle, 154 N.C. 345, 70 S.E. 834, 836.
The term may be synonymous with "water course."
Green v. County Com'rs of Harbine, 74 Ohio St. 318, 78
N.E. 521, 522.
"Sewers" differ from "drains" only in that the former
are in cities, and generally covered over, while the latter
are in rural communities, and open. Barton v. Drainage
Dist. No. 30, 174 Ark. 173, 294 S.W. 418, 419. But "drains"
may sometimes include sewers. City of Charlestown, 170
Ill. 336, 48 N.E. 985, 986. See, generally, Mound City Land
& Stock Co. v. Miller, 170 Mo. 240, 70 S.W. 721, 724, 6
L.R.A. 190, 94 Am.St.Rep. 727.
Also, sometimes, the easement or servitude (acquired by grant or prescription) which consists
in the right to drain water through another's
land. See 3 Kent, Comm. 436; 7 M. & G. 354.
DRAINAGE DISTRICT. A political subdivision
of the state, created for the purpose of draining
and reclaiming wet and overflowed land, as well
as to preserve the public health and convenience.
Commander v. Board of Com'rs of Buras Levee
Dist., 202 La. 325, 11 So.2d 605, 607.
DRAG. In a technical sense, the lower part of
the mold for casting iron pipe. Casey-Hedges Co.
v. Gates, 139 Tenn. 282, 201 S.W. 760, 761.
DRAM. In common parlance, a drink of some
substance containing alcohol; something which
can produce intoxication. Lacy v. State, 32 Tex.
228. See Wright v. People, 101 Ill. 134.
DRAGO DOCTRINE. The principle asserted by
Luis Drago, Minister of Foreign Affairs of the
Argentine Republic, in a letter to the Argentine
Minister at Washington, December 29, 1902, that
DRAM-SHOP. A drinking saloon, where liquors
are sold to be drunk on the premises. Com. v.
Marzynski, 21 N.E. 228, 149 Mass. 68. A place
where spirituous liquors are sold by the dram or
582
DRENCHES
the drink; a barroom. McCormick v. Brennan,
224 Ill.App. 251, 254.
DRAM SHOP ACT. A civil damage statute directed at the operators of dram shops and at owners of buildings and premises wherein the operators are tenants. It permits an action to be
brought by a person injured by an intoxicated person against one who contributed to the intoxication. See 1958 Univ. of Il1.Law Forum, No. 2 "Actions under the Illinois Dram Shop Act," and
John A. Appleman, "Civil liability under the Illinois Dram Shop Act," 34 Ill.L.Rev. 30 (1939),
Wanna v. Miller (N.Dak.) 136 N.W.2d 563 (1965).
DRAMA. A term descriptive of any representation in which a story is told, a moral conveyed,
or the passions portrayed, whether by words and
actions combined, or by mere actions alone. Asa
G. Candler, Inc., v. Georgia Theater Co., 148 Ga.
188, 96 S.E. 226, 227, L.R.A.1918F, 389. A story
put in action. Zucarro v. State, 82 Tex.Cr.R. 1,
197 S.W. 982, 985, L.R.A.1918B, 354.
DRAMATIC COMPOSITION. In copyright law.
A literary work setting forth a story, incident,
or scene from life, in which, however, the narrative is not related, but is represented by a dialogue and action; may include a descriptive poem
set to music, or a pantomime, but not a composition for musical instruments alone, nor a mere
spectacular exhibition or stage dance. Martinetti
v. McGuire, 16 Fed.Cas. 920; Fuller v. Bemis, C.
C.N.Y., 50 Fed. 926.
DRAMATIC WORK. Photoplay is "dramatic
work" within Copyright Law. Metro-GoldwynMayer Distributing Corporation v. Bijou Theatre
of Holyoke, D.C.Mass., 3 F.Supp. 66, 73; contra.
Metro-Goldwyn-Mayer Distributing Corporation v.
Bijou Theatre, D.C.Mass., 50 F.2d 908, 909.
DRAUGHT. Act of drawing, or the thing drawn;
act of moving loads by drawing as by beasts of
burden, and the like; and the term may be used
in the sense of pull. Jackson Floor Covering v.
Maryland Casualty Co. of Baltimore, 117 N.J.L.
401, 189 A. 84, 85.
DRAW, n. A movable section of a bridge, which
may be raised up or turned to one side, so as to
admit the passage of vessels. Gildersleeve v.
Railroad Co., D.C.N.Y., 82 Fed. 766; A depression
in the surface of the earth, in the nature of a
shallow ravine or gulch, sometimes many miles
in length, forming a channel for the escape of
rain and melting snow draining into it from either side. Railroad Co. v. Sutherland, 44 Neb.
526. 62 N.W. 859.
DRAW, v. To draw a firearm or deadly weapon
is to point it intentionally. State v. Boyles, 24 N.
M. 464, 174 P. 423. To draw a bead on; to bring
into line with the bead or fore sight of a rifle and
the hind sight; to aim at. Hatfield v. Commonwealth, 200 Ky. 243, 254 S.W. 748, 749.
To prepare a draft; to compose and write out
in due form, as, a deed, complaint, petition, memorial, etc. Winnebago County State Bank v.
Hustel, 119 Iowa 115, 93 N.W. 70.
To draw a jury is to select the persons who
are 'to compose it, either by taking their names
successively, but at hazard, from the jury box,
or by summoning them individually to attend the
court. Smith v. State, 34 So. 168, 136 Ala. 1.
In old criminal practice. To drag (on a hurdle)
to the place of execution. Anciently no hurdle
was allowed, but the criminal was actually
dragged along the road to the place of execution.
A part of the ancient punishment of traitors was
to be thus drawn. 4 Bl.Comm. 92, 377.
In mercantile law. To draw a bill of exchange
is to write (or cause it to be written) and sign
it; to make, as a note. Knox v. Rivers Bros., 17
Ala.App. 630, 88 So. 33, 34.
In fiscal law and administration. To take out
money from a bank, treasury, or other depository in the exercise of a lawful right and in a
lawful manner. But to "draw a warrant" is not
to draw the money; it is to make or execute the
instrument which authorizes the drawing of the
money. Brown v. Fleischner, 4 Or. 149.
DRAWBACK. In the customs laws, an allowance made by the government upon the duties due
on imported merchandise when the importer, instead of selling it here, re-exports it; or the refunding of such duties if already paid. This allowance amounts, in some cases, to the whole of
the original duties; in others, to a part only.
See 19 U.S.C.A. § 1313.
DRAWEE. A person to whom a bill of exchange
is addressed, and who is requested to pay the
amount of money therein mentioned.
DRAWER. The person drawing a bill of exchange and addressing it to the drawee. Boatenreiter v. Williams, 58 Ga.App. 635, 199 S.E. 558,
559.
DRAWING. In patent law. A representation of
the appearance of material objects by means of
lines and marks upon paper, cardboard, or other
substance. Ampt v. Cincinnati, 8 Ohio Dec. 628;
35 U.S.C.A. § 34.
DRAWLATCHES. Thieves; robbers. Cowell.
DRAYAGE. A charge for the transportation of
property in wheeled vehicles, such as drays, wagons, and carts. Soule v. San Francisco Gaslight Co., 54 Cal. 242.
DREDGE. Formerly applied to a net or drag for
taking oysters; now a machine for cleansing
canals and rivers. To "dredge" is to gather or
take with a dredge, to remove sand, mud, and
filth from the beds of rivers, harbors, and canals,
with a dredging machine. 15 Can.L.T. 268.
DREIT-DREIT. Droit-droit. (Also written without the hyphen.) Double right. A union of the
right of possession and the right of property. 2
Bl.Comm. 199.
DRENCHES, or DRENGES. In Saxon law. Tenants in capite. They are said to be such as, at the
583
DRENGAGE
coming of William the Conqueror, being put out
of their estates, were afterwards restored to them,
on their making it appear that they were the true
owners thereof, and neither in auxilio or consilio
against him. Spelman.
DRENGAGE. The tenure by which the drenches,
or drenges, held their lands. A variety of feudal
tenure by serjeanty (q. v.), often occurring in
the northern counties of England, involving a
kind of general service. Vinogradoff, Engl.Soc. in
Eleventh Cent. 62. Little is known of it; 3
Holdsw.Hist.E.L. 132.
DRESSING. In the meat packing industry. The
freeing of the carcass of hair, scurf, toenails,
evisceration of the carcass, the cleaning and
separation of the warm fancy meats, and the
placing of these in the coolers. Likewise, all the
operations performed upon the carcasses after
slaughtering and until they go to the coolers, are
included. The cleaning of casings is considered
as "dressing", as is the grading of casings, if the
grading takes place prior to salting. The removal
of hides, pelts, bones, fats, blood and other materials from the dressing floor is also considered
as "dressing" in the meat packing industry. Fleming v. Swift & Co., D.C.I11., 41 F.Supp. 825, 828.
Freeing of body from feathers and matters not
suitable for consumption. Shain v. Armour & Co.,
D.C.Ky., 50 F.Supp. 907, 911.
DRIER. In the paper-making trade, a hot drum.
Tompkins-Hawley-Fuller Co. v. Holden, C.C.A.N.Y.,
273 F. 424, 430.
DRIFT,
v. To float or be driven along by or as
a current of water or air; to accumulate in heaps
by the force of the wind; to be driven into heaps,
as snow or sand drifts. State ex rel. Perkins v.
Hardwick, 144 Kan. 3, 57 P.2d 1231, 1234.
DRIFT,
n. In mining law. An underground
passage driven horizontally along the course of
a mineralized vein or approximately so. Distinguished from "shaft," which is an opening made
at the surface and extending downward into the
earth vertically, or nearly so, upon the vein or
intended to reach it; and from "tunnel," which is
a lateral or horizontal passage underground intended to reach the vein or mineral deposit, where
drifting may begin. Jurgenson v. Diller, 114 Cal.
491, 46 P. 610, 55 Am.St.Rep. 83; Empire Star
Mines Co. v. Butler, 62 Cal.App.2d 49, 145 P.2d
49, 63.
In old English law. A driving, especially of
cattle.
DRIFT NET. A net with both ends free to drift
with the current;—distinguished from a "set net,"
which is one fastened at one or both ends, so the
whole net cannot drift with the current. State v.
Blanchard, 96 Or. 79, 189 P. 421, 427.
DRIFT-STUFF.
This term signifies, not goods
which are the subject of salvage, but matters floating at random, without any known or discoverable
never be reclaimed, but will, as a matter of course,
accrue to the riparian proprietor. Watson v.
Knowles, 13 R.I. 641.
DRIFTS OF THE FOREST. A
view or examination of what cattle are in a forest, chase, etc.,
that it may be known whether it be surcharged or
not; and whose the beasts are, and whether they
are commonable. These drifts are made at certain
times in the year by the officers of the forest,
when all cattle are driven into some pound or
place inclosed, for the before-mentioned purposes,
and also to discover whether any cattle of strangers be there, which ought not to common. Manwood, p. 2, c. 15.
DRIFTING. The natural
tendency of wells drilled
in search of oil or gas to deflect from vertical.
Gliptis v. Fifteen Oil Co., 204 La. 896, 16 So.2d 471,
476.
DRIFTLAND, DROFLAND, or DRYFLAND. A.
Saxon word, signifying a tribute or yearly payment made by some tenants to the king, or their
landlords, for driving their cattle through a manor
to fairs or markets. Cowell.
DRIFTWAY. A road or way over which cattle are
driven. Selw.N.P. 1037; Woolr.Ways 1; 2 Hilliard,
Abr.Prop. 33; Smith v. Ladd, 41 Me. 314; Swensen v. Marino, 306 Mass. 582, 29 N.E.2d 15, 18, 130
A.L.R. 763.
DRILL AND COMPLETE A WELL.
Term "dell
and complete a well" to known oil sand for purpose of testing and operating for oil production
means cleaning out of well, so that sand reached
may give flow of production. Arnold v. Adams,
147 Okl. 57, 294 P. 142, 147.
DRILLED.
Completed;—said of oil wells and the
like. Texas Pac. Coal & Oil Co. v. Harris, Tex.
Civ.App., 230 S.W. 237, 238. The term implies
progress in the work, and not mere use of the
drill. Texas Const. Co. v. Dearing, Tex.Civ.App.,
296 S.W. 1112, 1115.
DRILLING IN.
Drilling, as an oil well, after the
casing has been set. Smith & Hayslip v. Wilcox
Oil Co, Tex.Civ.App., 253 S.W. 641, 642.
DRINCLEAN.
Sax. A contribution of tenants, In
the time of the Saxons, towards a potation, or ale,
provided to entertain the lord, or his steward.
Cowell. See Cervisarii.
DRINK. To use liquid as a beverage to slake
thirst. State v. Woodward, 41 Idaho 353, 238 P.
525, 527. See, also, Merle v. Beifeld, 194 Ill.App.
364, 385. Specifically, to use intoxicating liquors.
DRINKABLE. Capable of being drunk; fit to
drink. McChristy v. State, 138 Tex.Cr.R. 26, 133
S.W.2d 976, 977.
DRINKING MAN. One who takes a drink of
liquor when he chooses, even though it may be so
infrequent as to produce no harmful effect on his
health. Tuepker v. Sovereign Camp, W. 0. W.,
Mo.App., 226 S.W. 1002, 1003.
ownership, which, if cast ashore, will probably
584
DROIT
DRINKING—SHOP. A place where intoxicating
liquors are sold, bartered, or delivered to be drunk
on the premises. Portland v. Schmidt, 13 Or. 17,
6 Pac. 221.
DRIP. A species of easement or servitude obligating one man to permit the water falling from
another man's house to fall upon his own land.
3 Kent, Comm. 436; 1 Rolle, Abr. 107. A mechanism which hastens the condensation of moisture
and collects the liquid in a reservoir from which
it is drained into a storage tank. Slater v. United
Fuel Gas Co., 126 W.Va. 127, 27 S.E.2d 436, 437.
DRIVE, n. An underground process. Diller v. St.
Louis, S. & P. R. R., 304 Ill. 373, 136 N.E. 703, 704.
in which case they are equivalent to "just," or nouns, In
which case they may be paraphrased by the expressions
"justice," "morality," or "equity." On the other hand,
they serve to point out a right; that is, a power, privilege,
faculty, or demand, inherent in one person, and incident
upon another. In the latter signification, droit (or recht or
right) is the correlative of "duty" or "obligation." In the
former sense, it may be considered as opposed to wrong,.
injustice, or the absence of law. Droit has the further
ambiguity that it is sometimes used to denote the existing
body of law considered as one whole, or the sum total of
a number of individual laws taken together. See Jus;
Recht; Right.
In old English law. Law; right; a writ of
right. Co.Litt. 158b.
A person was said to have droit droit, plurimum June,
and plurimum possessionis, when he had the freehold, the
fee, and the property in him. Crabb, Hist.E.L. 406.
DRIVE, v. To impel motion and quicken. Bosse
v. Marye, 80 Cal.App. 109, 250 P. 693, 696. To compel, urge, or move in some manner or direction.
Howell v. J. Mandelbaum & Sons, 160 Iowa 119,
140 N.W. 397, 398, Ann.Cas.1915D, 349. To control the motive power, as of a motor vehicle.
Grant v. Chicago, M. & St. P. Ry. Co., 78 Mont. 97,
252 P. 382, 385. To go by, or pass in, a carriage
whose course is wholly or partly under one's direction. Federal Life Ins. Co. v. McAleer, 161
Old. 251, 17 P.2d 681, 683.
DRIVE—IT—YOURSELF CARS. A term used to
describe automobiles which their owners, as a
regular business, rent out for hire without furnishing drivers. City of Rockford v. Nolan, 316
60, 146 N.E. 564. See, also, Welch v. Hartnett,
127 Misc. 221, 215 N.Y.S. 540; White v. Holmes,
89 Fla. 251, 103 So. 623; Blashfield's Cyclopedia of
Automobile Law, p. 2802.
DRIVER. One employed in conducting or operating a coach, carriage, wagon, or other vehicle,
with horses, mules, or other animals, or a bicycle,
tricycle, or motor car, though not a street railroad
car. A person actually doing driving, whether employed by owner to drive or driving his own vevehicle. Wallace v. Woods, 340 Mo. 452, 102 S.W.2d
91, 97.
DRIVING. To urge forward under guidance, compel to go in a particular direction, urge onward,
and direct the course of. Mould v. Travelers' Mut.
Casualty Co., 219 Iowa 16, 257 N.W. 349.
DROFDEN, or DROFDENNE. A grove or woody
place where cattle are kept. Jacob.
DROFLAND. Sax. A quit rent, or yearly payment, formerly made by some tenants to the king,
or their landlords, for driving their cattle through
a manor to fairs or markets. Cowell; Blount.
DROIT. In French law. Right, justice, equity,
law, the whole body of law; also a right. Toullier,
n. 96; Pothier, Droit.
This term exhibits the same ambiguity which is discoverable in the German equivalent, "recht" and the English
word "right." On the one hand, these terms answer to the
Roman "jus," and thus indicate law in the abstract, considered as the foundation of all rights, or the complex of
underlying moral principles which impart the character of
justice to all positive law, or give it an ethical content.
Taken in this abstract sense, the terms may be adjectives,
—Autre droit. The right of another.
DROITS CIVILS. This phrase in French law denotes private rights, the exercise of which is independent of the status (qualite) of citizen. Foreigners enjoy them; and the extent of that enjoyment is determined by the principle of reciprodty. Conversely, foreigners may be sued on
contracts made by them in France. Brown.
DROIT—CLOSE. An ancient writ, directed to the
lord of ancient demesne on behalf of those of his
tenants who held their lands and tenements by
charter in fee-simple, in fee-tail, for life, or in
dower. Fitzh.Nat.Brev. 23.
DROIT COMMON. The common law. Lift. § 213;
Co.Litt. 142a.
DROIT COUTUMIER. Common law.
DROIT D'ACCESSION. That property which Is
acquired by making a new species out of the material of another. It is equivalent to the Roman
"specifi,catio." This subject is treated of in the
Code Civil de Napoleon, arts. 565, 577; Merlin,
Repert. Accession; Malleville's Discussion, art.
565.
DROIT D'ACCROISSEMENT. The right which
an heir or legatee has of combining with his own
interest in a succession the interest of a coheir or
colegatee who either refuses to or cannot accept
his interest. Houghton v. Brantingham, 86 Conn.
630, 86 A. 664, 667.
DROIT D'AUBAINE. A rule by which all the
property of a deceased foreigner, whether movable
or immovable, was confiscated to the use of the
state, to the exclusion of his heirs, whether claiming ab intestato or under a will of the deceased.
Finally abolished in 1819. Opel v. Shoup, 100 Iowa
407, 69 N.W. 560, 37 L.R.A. 583.
DROIT D'EXECUTION. The right of a stockbroker to sell the securities bought by him for account of a client, if the latter does not accept delivery thereof. The same expression is also applied to the sale by a stockbroker of securities deposited with him by his client, in order to guaranty
the payment of operations for which the latter has
given instructions. Arg.Fr.Merc.Law, 557.
585
DROIT
DROIT DE BRIS. A right formerly claimed by
the lords of the roasts of certain parts of France,
to shipwrecks, by which not only the property, but
the persons of those who were cast away, were
confiscated for the prince who was lord of the
coast. Otherwise called "droit de bris sur le naufrage." This right prevailed chiefly in Bretagne,
and was solemnly abrogated by Henry III. as
duke of Normandy, Aquitaine, and Guienne, in a
charter granted A. D. 1226, preserved among the
rolls at Bordeaux.
currence was necessary to constitute a complete
title to land. Mozley & Whitley.
DROIT ECRIT. In French law. (The written
law.) The Roman civil law, or Corpus Juris Civilis. Steph.Lect. 130.
DROIT INTERNATIONAL. International law.
DROIT MARITIME. Maritime law.
DROIT NATUREL. Fr. The law of nature.
DROIT DE DETRACTION. A tax upon the removal from one state or country to another of
property acquired by succession or testamentary
disposition; it does not cover a tax upon the succession to or transfer of property. Moody v. Hagen, 162 N.W. 704, 708, 36 N.D. 471, L.R.A.1918F,
947, Ann.Cas.1918A, 933. Cf. Duties of Detraction.
DROIT DE GARDE. In French feudal law. Right
of ward. The guardianship of the estate and person of a noble vassal, to which the king, during his
minority, was entitled. Steph.Lect. 250.
DROIT DE GITE. In French feudal law. The
duty incumbent on a roturier, holding lands within
the royal domain, of supplying board and lodging
to the king and to his suite while on a royal progress. Steph.Lect. 351.
DROIT DE GREFFE. In old French law. The
right of selling various offices connected with the
custody of judicial records or notarial acts. Steph.
Lect. 354. A privilege of the French kings.
DROIT DE MAITRISE. In old French law. A
charge payable to the crown by any one who, after
having served his apprenticeship in any commercial guild or brotherhood, sought to become a
master workman in it on his own account. Steph.
Lect. 354.
DROIT DE NAUFRAGE. The right of a seigneur, who owns the seashore, or the king, when a
vessel is wrecked, to take possession of the wreckage and to kill the crew or sell them as slaves.
14 Yale L.Jour. 129.
DROIT DE PRISE. In French feudal law. The
duty (incumbent on a roturier) of supplying to
the king on credit, during a certain period, such
articles of domestic consumption as might be required for the royal household. Steph.Lect. 351.
DROIT DE QUINT. In French feudal law. A
relief payable by a noble vassal to the king as his
seigneur, on every change in the ownership of his
fief. Steph.Lect. 350.
DROIT DE SUITE. The right of a creditor to
pursue the debtor's property into the hands of
third persons for the enforcement of his claim.
DROIT-DROIT. A double right; that is, the right
of possession and the right of property. These
two rights were, by the theory of our ancient law,
distinct; and the above phrase was used to indicate
the concurrence of both in one person, which con-
DROIT NE POET PAS MORIER. Right cannot
die. Jenk.Cent. 100, case 95.
DROIT NE DONE PLUIS QUE SOIT DEMAUNDE. The law gives not more than is demanded. 2 Inst. 286.
DROITS OF ADMIRALTY. Rights or perquisites
of the admiralty. A term applied to goods found
derelict at sea. Applied also to property captured
in time of war by non-commissioned vessels of a
belligerent nation. 1 Kent, Comm. 96; 2 Sel.Essays in Anglo-Amer.Leg.Hist. 318; 15 L.Q.R. 359;
Marsden, Admiralty, Droits and Salvage; 1 W.
Rob. 423. In England, it has been usual in maritime wars for the government to seize and condemn, as droits of admiralty, the property of an
enemy found in her ports at the breaking out of
hostilities. 1 C.Rob. 196; 13 Ves. 71; 1 Edw. 60;
3 Bos. & P. 191. The power to exercise such a
right has not been delegated to, nor has it ever
been claimed by, the United States government.
Benedict, Adm. § 33; Brown v. U. S., 8 Cranch, 110,
3 L.Ed. 504.
DROITURAL. What belongs of right; relating to
right; as real actions are either droitural or possessory,—droitural when the plaintiff seeks to recover the property. Finch, Law, 257.
DROMONES, DROMOS, DROMUNDA. These
were at first high ships of great burden, but afterwards those which we now call "men-of-war."
Jacob.
DROP. In English practice. When the members
of a court are equally divided on the argument
showing cause against a rule nisi, no order is
made, i. e., the rule is neither discharged nor
made absolute, and the rule is said to drop. In
practice, there being a right to appeal, it has been
usual to make an order in one way, the junior
judge withdrawing his judgment. Wharton.
DROP-LETTER. A letter addressed for delivery
in the same city or district in which it is posted.
DROP SHIPMENT DELIVERY. In mercantile
usage, this phrase refers to ordinary freight unloaded from railroad cars;—distinguished from
carload shipments, known as "track delivery
shipments." Boshell v. Receivers of St. Louis &
S. F. R. Co., 200 Ala. 366, 76 So. 282, 284.
DROPPING GROUND. In the logging industry,
a place on the bank of a stream to store sawlogs,
railroad ties, staves, and the products of the forest, while waiting for a rise of the stream that will
586
DRY
goods to be shipped to the retail dealer. Thomas
v. Hot Springs, 34 Ark. 557, 36 Am.Rep. 24.
enable the owner to float his timbered products
down the river to a market. Lexington & E. Ry.
Co. v. Grigsby, 176 Ky. 727, 197 S.W. 408.
DRUNGARIUS. In old European law. The , commander of a drungus, or band of soldiers.. Applied
also to a naval commander. Spelman.
DROVE. A number of animals collected and driven together in a body; a flock or herd of cattle in
process of being driven; indefinite as to number,
but including at least several. McConvill v. Jersey City, 39 N.J.Law, 43.
DRUNGUS. In old European law. A band of
soldiers, (globus militum.) Spelman.
DROVE-ROAD. In Scotch law. A road for driving cattle. 7 Bell, App.Cas. 43, 53, 57. A driftroad. Lord Brougham, Id.
DROVE-STANCE. In Scotch law. A place adjoining a drove-road, for resting and refreshing sheep
and cattle on their journey. 7 Bell, App.Cas. 53,
57.
DROVER'S PASS. A free pass given by a railroad company, accepting a drove of cattle for
transportation, to the drover who accompanies
and cares for the cattle on the train. Railway
Co. v. Ivy, 71 Tex. 409, 9 S.W. 346, 1 L.R.A. 500, 10
Am.St.Rep. 758.
DROWN. To merge or sink. "In some cases a
right of freehold shall drown in a chattel." Co.
Litt. 266a, 321a.
DRU. A thicket of wood in a valley. Domesday.
DRUG. The general name of substances used in
medicine; any substance, vegetable, animal, or
mineral, used in the composition or preparation of
medicines; any substance used as a medicine.
Carroll Perfumers v. State, Ind., 7 N.E.2d 970, 972;
Hammond v. State, 173 Ark. 674, 293 S.W. 714, 717.
The term is also applied to materials used in dyeing and in chemistry. See, generally, Collins v.
Banking Co., 79 N.C. 281, 28 Am.Rep. 322; Insurance Co. v. Flemming, 65 Ark. 54, 44 S.W. 464,
39 L.R.A. 789, 67 Am.St.Rep. 900.
DRUG STORE. A place where drugs are sold.
Department of State v. Kroger Grocery & Baking
Co., Ind.App., 40 N.E.2d 375, 378; Carroll Perfumers v. State, 212 Ind. 455, 7 N.E.2d 970, 972.
DRUGGIST. A dealer in drugs; one whose business is to sell drugs and medicines. In strict usage, this term is to be distinguished from "apothecary." A druggist deals in the uncompounded
medicinal substances; the business of an apothecary is to mix and compound them. But in America the two words are used interchangeably, as the
same persons usually discharge both functions.
State v. Donaldson, 41 Minn. 74, 42 N.W. 781.
DRUNK. A person is "drunk" when he ' is so far
under the influence of liquor that his passions are
visibly excited or his judgment impaired, or wilen
his brain is so far affected by potations of liquor
that his intelligence, sense-perceptions, judgmert,
continuity of thought or of ideas, speech,, and ,coordination of volition with muscular action (pr
some of these faculties or processes) are impaired
or not under normal control. Wilson V. InterOcean Casualty Co., 210 N.C. 585, 188 S.E. 102, 106.
It is a synonym of intoxicated. Gault v. State, 42
Okl.Cr. 89, 274 P. 687, 688.
DRUNKARD. He is a drunkard whose habit it is
to get drunk; whose ebriety has become habitual.
The terms "drunkard" and "habitual drunkard"
mean the same thing. Gourlay v. Gourlay, 16 R.I.
705, 19 A. 142. Pollon v. State, 218' Wis. 466, 261
N.W. 224, 225.
A "common" drunkard is defined by statute in some
states as a person who has been convicted of drunkenness
(or proved to have been drunk) a certain number of times
within a limited period. State v. Flynn, 16 R.I. 10, 11 A.
170. Elsewhere the word "common" in this connection is
understood as being equivalent to "habitual," Com. v.
McNamee, 112 Mass. 286; or perhaps as synonymous with
"public," Com. v. Whitney, 5 Gray, Mass., 86.
DRUNKENNESS. In medical jurisprudence. The
condition of a man whose mind is affected by the
immediate use of intoxicating drinks; the state
of one who is "drunk." Mutual Life Ins. Co. v.
Johnson, 64 Okl. 222, 166 P. 1074, 1076. 'The effect produced upon the mind or body by drinking
intoxicating liquors to such an extent that the
normal condition of the subject is changed and his
capacity for rational action and conduct is substantially lessened. Lecates v. Lecates, Del.Super.,
190 A. 294, 296. See Drunk.
DRY, adj. In the vernacular, this term means
desiccated or free from moisture; but, In legal
use, it signifies formal or nominal, without imposing any duty or responsibility, or unfruitful, without bringing any profit or advantage.
DRY, n. Term used to designate a person who is
opposed to allowing the sale of intoxicating liquors; a prohibitionist; in contradistinction to a
"wet," or antiprohibitionist. State v. Shumaker,
200 Ind. 623, 157 N.E. 769, 778, 58 A.L.R. 954.
DRUGLESS PRACTITIONER. Any person who
practises or holds himself out in any way as practising the treatment of any ailment, disease, defect, or d4sability of the human body by manipulation, adjustment, manual or electrotherapy, or
by any similar method. State v. Houck, Wash.,
203 P.2d 693, 699.
DRY-CRXFT. Witchcraft; magic. Anc. Inst.
Eng.
DRUMMER. A term applied to commercial agents
who travel for wholesale merchants and • supply
the retail trade with goods or take orders for
DRY DOCK. Watertight oasin, which allows
examination and work on bottom of vessel after
pumping out. Maryland Casualty Co. v. La'wson,
DRY CHECK. Synonymous wan -cold check",
and "hot check". Elder v. Evatt, Tex.Civ.App., 154
S.W.2d 684, 685.
587
DRY
C.C.A.Fla., 101 F.2d 732, 733. Whatever may have
been the definition of a "dry dock" in the past,
the definition must be enlarged to include modern
facilities for repairing boats out of the water, as
the meaning of the term, used in its common,
ordinary sense, is a dry place to work in. Continental Casualty Co. v. Lawson, D.C.Fla., 2 F.
Supp. 459, 460.
DUAL NATIONALITY. Fact that two states
make equal claim to the allegiance of an individual at the same time. Perkins v. Elg, App.D.C.,
59 S.Ct. 884, 894, 307 U.S. 325, 83 L.Ed. 1320.
DUARCHY. A form of government where two
reign jointly.
DUAS UXORES EOUEM TEMPORE HABERE
NON LICET. It is not lawful to have two wives
at the same time. Inst. 1, 10, 6; 1 Bl.Comm. 436.
DRY EXCHANGE. In English law. A term formerly in use, said to have been invented for the
purpose of disguising and covering usury; something being pretended to pass on both sides,
whereas, in truth, nothing passed but on one side,
in which respect it was called "dry." Cowell;
Blount.
DUBITANS. Doubting. Dobbin, J., dubitans. 1
Show. 364.
DUBITANTE. Doubting. Is affixed to the name
of a judge, in the reports, to signify that he doubted the decision rendered.
DRY ICE. Solid carbon dioxide. Carbo-Frost v.
Pure Carbonic, C.C.A.Mo., 103 F.2d 210, 213; New
York Eskimo Pie Corporation v. Rataj, C.C.A.Pa.,
73 F.2d 184, 186.
DUBITATUR. It is doubted. A word frequently
used in the reports to indicate that a point is considered doubtful.
DRY MORTGAGE. One which creates a lien on
land for the payment of money, but does not impose any personal liability upon the mortgagor,
collateral to or over and above the value of the
premises. Frowenfeld v. Hastings, 134 Cal. 128,
66 P. 178.
DUBITAVIT. Doubted. Vaughan, C. J., dubitavit. Freem. 150.
DRY-MULTURES. In Scotch law. Corn paid to
the owner of a mill, whether the payers grind or
not.
DUCATUS. In feudal and old English law. A
duchy, the dignity or territory of a duke.
DUCAT. A foreign coin, varying in value in different countries, but usually worth about $2.26 of
our money.
DRY NATURAL GAS. Natural gas that does not
contain an appreciable amount of readily condensible gasoline. When natural gas contains
readily condensible gasoline it is called "wet natural gas." Mussellem v. Magnolia Petroleum
Co., 107 Oki. 183, 231 P. 526, 530.
DRY OIL. A petroleum liquid carrying in cohesion with it less than 3 per cent. by volume of water and sediment. Alamitos Land Co. v. Shell Oil
Co., 3 Ca1.2d 396, 44 P.2d 573, 575.
DRY RECEIVERSHIP. Receivership wherein
there is no equity to be administered for general
creditors, even if action is in statutory form.
Maxwell Lumber Co. v. Connelly, 34 N.M. 562, 287
P. 64, 67.
DRY RENT. Rent seck; a rent reserved without
a clause of distress.
DRY TRUST. A passive trust; one which requires no action on the part of the trustee beyond
turning over money or property to the cestui que
trust. Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d
135, 142.
DRY WEIGHT. In tariff laws, this term does not
mean the weight of an article after desiccation in
a kiln, but its air-dry weight as understood in commerce. U. S. v. Perkins, 66 F. 50, 13 C.C.A. 324.
DUAL BUSINESS. Must show units of substantial separateness and completeness, such as might
be maintained as an independent business and
capable of producing profit in and of themselves.
Maxwell v. Kent-Coffey Mfg. Co., 204 N.C. 365,
168 S.E. 397, 399, 90 A.L.R. 476.
DUCES TECUM. (Lat. Bring with you.) The
name of certain species of %Nwrits, of which the
subpcena duces tecum is the most usual, requiring
a party who is summoned to appear in court to
bring with him some document, piece of evidence,
or other thing to be used or inspected by the court.
DUCES TECUM LICET LANGUIDUS. (Bring
with you, although sick.) In practice. An ancient
writ, now obsolete, directed to the sheriff, upon a
return that he could not bring his prisoner without danger of death, he being adeo languidus, (so
sick;) whereupon the court granted a habeas corpus in the nature of a duces tecum licet languidus.
Cowell; Blount.
DUCHY OF LANCASTER. Those lands which
formerly belonged to the dukes of Lancaster, and
now belong to the crown in right of the duchy.
The duchy is distinct from the county palatine of
Lancaster, and includes not only the county, but
also much territory at a distance from it, especially the Savoy in London and some land near
Westminster. 3 Bl.Comm. 78.
DUCHY COURT OF LANCASTER. A tribunal
of special jurisdiction, held before the chancellor
of the duchy, or his deputy, concerning all matters
of equity relating to lands holden of the crown in
right of the duchy of Lancaster; which is a thing
very distinct from the county palatine, (which
has also its separate chancery, for sealing of writs,
and the like,) and comprises much territory which
lies at a vast distance from it; as particularly a
very large district surrounded by the city of Westminster. The proceedings in this court are the
same as were those on the equity side of the court
of chancery, so that it seems not to be a court
588
DUE
negligent or careless, but that he has been guilty
of no violation of law in relation to the subjectmatter or transaction which constitutes the cause
of action.
of record; and, indeed, it has been holden that
the court of chancery has a concurrent jurisdiction with the duchy court, and may take cognizance of the same causes. Jud.Act 1873, § 18; 3
Bl.Comm. 78.
DUE CONSIDERATION. To give such weight
or significance to a particular factor as under the
circumstances it seems to merit, and this involves
discretion. United States ex rel. Maine Potato
Growers & Shippers Ass'n v. Interstate Commerce
Commission, 88 F.2d 780, 783, 66 App.D.C. 398.
DUCKING–STOOL. See Castigatory.
DUCROIRE. In French law. Guaranty; equivalent to del credere, ( which see.)
DUE. Just; proper; regular; lawful; sufficient; remaining unpaid; reasonable; as in the
phrases "due care," "due process of law," "due
notice."
DUE COMPENSATION. For condemned land is
the value of land taken and the damages, if any,
which result to him as a consequence of the taking without considering either general benefits or
injuries. Mississippi State Highway Commission
v. Hillman, 189 Misc. 850, 198 So. 565, 569.
Owing; payable; justly owed. That which one
contracts to pay or perform to another; that
which law or justice requires to be paid or done.
Owed, or owing, as distinguished from payable.
A debt is often said to be due from a person where
he is the party owing it, or primarily bound to pay,
whether the time for payment has or has not arrived. The same thing is true of the phrase "due
and owing."
Payable. A bill or note is commonly said to be
due when the time for payment of it has arrived.
Final is not synonymous with due. Twine v.
Locke, D.C.N.Y., 3 F.Supp. 1012, 1013.
The word "due" always imports a fixed and settled
obligation or liability, but with reference to the time for
its payment there is considerable ambiguity in the use of
the term, as will appear from the foregoing definitions, the
precise signification being determined in each case from the
context. It may mean that the debt or claim in question
is now (presently or immediately) matured and enforceable, or that it matured at some time in the past and yet
remains unsatisfied, or that it is fixed and certain but the
day appointed for its payment has not yet arrived. But
commonly, and in the absence of any qualifying expressions, the word "due" is restricted to the first of these
meanings, the second being expressed by the term "overdue," and the third by the word "payable." See Feeser v.
Feeser, 93 Md. 716, 50 A. 406.
DUE AND PROPER CARE. That degree of care
which is required of one for prevention of the accident. Odgers v. Clark, Del.Super., 19 A.2d 724,
726, 2 Terry 232.
DUE AND REASONABLE CARE. Care which
reasonably prudent man would exercise under circumstances. Southern Ry. Co. v. Whetzel, 159
Va. 796, 167 S.E. 427, 431.
DUE CARE. Just, proper, and sufficient care, so
far as the circumstances demand it; the absence
of negligence. That care which an ordinarily
prudent person would have exercised under the
circumstances. "Due care" is care proportioned
to any given situation, its surroundings, peculiarities, and hazards. It may and often does require
extraordinary care. Tower v. Camp, 103 Conn. 41,
130 A. 86, 89. "Due care," "reasonable care," and
"ordinary care" are convertible terms. Corthell
v. Great Atlantic & Pacific Tea Co., 291 Mass. 242,
196 N.E. 850, 851; Sweeney v. Blue Anchor Beverage Co., 325 Pa. 216, 189 A. 231, 234.
This term, as usually understood in cases where
the gist of the action is the defendant's negligence, implies not only that a party has not been
DUE COURSE HOLDER. See "Holder in Due
Course."
DUE COURSE OF LAW. This phrase is synonymous with "due process of law," or "the law of
the land," and the general definition thereof is
"law in its regular course of administration
through courts of justice;" and, while not always
necessarily confined to judicial proceedings, yet
these words have such a signification, when used
to designate the kind of an eviction, or ouster,
from real estate by which a party is dispossessed,
as to preclude thereunder proof of a constructive
eviction resulting from the purchase of a paramount title when hostilely asserted by the party
holding it. Direct Plumbing Supply Co. v. City
of Dayton, 138 Ohio St. 540, 38 N.E.2d 70, 72, 137
A.L.R. 1058.
DUE DATE. Time appointed or required for filing a tax return and, in the event of an extension
of time to file return, is the date to which period
for filing is extended. Langer v. Gray, N.D., 15
N.W.2d 732, 735. Under federal Revenue Act, "due
date," is the date fixed for payment of tax, or several installments thereof. American Exchange
Irving Trust Co. v. U. S., Ct.C1., 52 F.2d 1027, 1028.
Within Texas inheritance tax law due date is not date of
assessment, but last day on which taxes could be paid without incurring penalty. Half v. U. S., Ct.C1., 5 F.Supp. 132,
135.
DUE DILIGENCE. See Diligence.
DUE INFLUENCE. Influence obtained by persuasion and argument or by appeals to the affections. In re Chamberlain's Estate, Cal.App.,
109 P.2d 449, 452.
DUE NOTICE. No fixed rule can be established
as to what shall constitute "due notice." "Due"
is a relative term, and must be applied to each
case in the exercise of the discretion of the court
in view of the particular circumstances. Slattery
v. Doyle, 61 N.E. 264, 180 Mass. 27; Shellenberger v. Warburton, 124 A. 189, 190, 279 Pa. 577; Carson v. Kalisch, 99 A: 199, 202, 89 N.J.Law, 458;
Franklin Brass Foundry Co. v. Shapiro & Aronson, C.C.A.Pa., 278 F. 435, 436; City of Sebree v.
Powell, 298 S.W. 1103, 1104, 221 Ky. 478.
589
DUE
DUE POSTING. Includes stamping and placing
letter in United States mail. Tharp v. Loeb
Hardware Co., 135 So. 412, 413, 24 Ala.App. 344.
DUE PROCESS OF LAW. Law in its regular
courte of administration through courts of justice. 3 Story, Const. 264, 661. "Due process of
law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the
class of cases to which the one in question belongs." Cooley, Const. Lim. 441. Whatever difficulty may be experienced in giving to those
terms a definition which will embrace every permissible exertion of power affecting private rights,
and exclude such as is forbidden, there can be no
doubt of their meaning when applied to judicial
proceedings. They then mean a course of legal
proceedings according to those rules and principles which have been established in our systems
of jurisprudence for the enforcement and p .rotection of private rights. To give such proceedings
any validity, there must be a tribunal competent
by its constitution—that is, by the law of its creation—to pass upon the subject-matter of the suit;
and, if that involves merely a determination of
the personal liability of the defendant, he must be
brought within its jurisdiction by service of process within the state, or his voluntary appearance.
Pennoyer v. Neff, 95 U.S. 733, 24 L.Ed. 565. Due
process of law implies the right of the person affected thereby to be present before the tribunal
which pronounces judgment upon the question of
life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by
proof, every material fact which bears on the
question of right in the matter involved. If any
question of fact or liability be conclusively presumed against him, this is not due process of law.
Zeigler v. Railroad Co., 58 Ala. 599. These phrases in the constitution do not mean the general
body of the law, common and statute, as it was
at the time the constitution took effect; for that
would seem to deny the right of the legislature to
amend or repeal the law. They refer to certain
fundamental rights, which that system of jurisprudence, of which ours is a derivative, has always recognized. Brown v. Levee Com'rs, 50
Miss. 468. "Due process of law," as used in the
constitution, cannot mean less than a prosecution
or suit instituted and conducted according to the
prescribed forms and solemnities for ascertaining
guilt, or determining the title to property. Embury v. Conner, 3 N.Y. 511, 517, 53 Am.Dec. 325.
And see, generally, Davidson v. New Orleans, 96
U.S. 104, 24 L.Ed. 616.
"Law of the land," "due course of law," and "due process of law" are synonymous. People v. Skinner, Cal., 110
P.2d 41, 45; State v. Rossi, 71 R.I. 284, 43 A.2d 323, 326;
Direct Plumbing Supply Co. v. City of Dayton, 138 Ohio St.
540, 38 N.E.2d 70, 72, 137 A.L.R. 1058; Stoner v. Higginson,
316 Pa. 481, 175 A. 527, 531. But "judicial process" and
"judicial proceedings" are not necessarily synonymous
with "due process." Pennsylvania Publications v. Pennsylvania Public Utility Commission, 152 Pa.Super. 279, 32
A.2d 40, 49; Barry v. Hall, 98 F.2d 222, 68 App.D.C. 350.
The essential elements of "due process of law" are notice
and opportunity to be heard and to defend in orderly proceeding adapted to nature of case, and the guarantee or
due process requires that every man have protection of day
in court and benefit of general law. Dimke v. Finke, 209
Minn. 29, 295 N.W. 75, 79; Di Maio v. Reid, 13 N.J.L. 17,
37 A.2d 829, 830. Daniel Webster defined this phrase to
mean a law which hears before it condemns, which proceeds on inquiry and renders judgment only after trial.
Wichita Council No. 120 of Security Ben. Ass'n v. Security
Ben. Assn., 138 Kan. 841, 28 P.2d 976, 980, 94 A.L.R. 629;
J. B. Barnes Drilling Co. v. Phillips, 166 Okla. 154, 26 P.2d
766. This constitutional guaranty demands only that law
shall not be unreasonable, arbitrary, or capricious, and
that means selected shall have real and substantial relation to object. Nebbia v. People of State of New York,
N.Y., 54 S.Ct. 505, 291 U.S. 502, 78 L.Ed. 940, 89 A.L.R.
1469; North American Co. v. Securities and Exchange Commission, C.C.A., 133 F.2d 148, 154.
DUE PROOF. Within policies requirements
mean such a statement of facts, reasonably verified, as, if established in court, would prima facie
require payment of the claim, and does not mean
some particular form of proof which the insurer
arbitrarily demands. Misskelley v. Home Life
Ins. Co., 205 N.C. 496, 171 S.E. 862, 868; National
Life Ins. Co. v. White, D.C.Mun.App., 38 A.2d 663,
666. Sufficient evidence to support or produce a
conclusion; adequate evidence. Lando v. Equitable Life Assur. Soc. of U. S., D.C.Cal., 11 F.Supp.
729, 732.
DUE REGARD. Consideration in a degree appropriate to demands of the particular case. Willis
v. Jonson, 279 Ky. 416, 130 S.W.2d 828, 832.
DUE TO. Expressions "sustained by," "due to,"
"resulting from," "sustained by means of," "sustained in consequence 4" and "sustained through"
have been held to be synonymous. Federal Life
Ins. Co. v. White, Tex., 23 S.W.2d 832, 834. Also,
synonymous with "caused by." American Stores
Co. v. Herman, 166 Md. 312, 171 A. 54, 58.
DUE-BILL. A brief written acknowledgment of
a debt. It is not made payable to order, like a
promissory note. See Feeser v. Feeser, 93 Md.
716, 50 Atl. 406; Lee v. Balcom, 9 Colo. 216, 11
Pac. 74. See I. 0. U.
DUEL. A duel is any combat with deadly weapons, fought between two or more persons, by
previous agreement or upon a previous quarrel.
Baker v. Supreme Lodge K. P., 103 Miss. 374, 60
So. 333, Ann.Cas.1915B, 547.
DUELLING. The fighting of two persons, one
against the other, at an appointed time and place,
upon a precedent quarrel. It differs from an affray in this, that the latter occurs on a sudden
quarrel, while the former is always the result of
design.
DUELLUM. The trial by battel or judicial combat. See Battel.
DUES. Certain payments; rates or taxes. See
Ward v. Joslin, 105 Fed. 227, 44 C.C.A. 456; Whitman v. National Bank, 176 U.S. 559, 20 Sup.Ct.
477, 44 L.Ed. 587. As applied to club and other
membership corporations, word refers to sums
paid toward support of society and to retain membership therein. Jefferson County Farm Bureau
590
DUMMY
v. Sherman, 208 Iowa 614, 226 N.W. 182, 185.
And covers only fixed and definite charges applicable to all club members. Hardt v. McLaughlin,
D.C.Pa., 25 F.Supp. 684, 685.
•
DUM FERVET OPUS. While the work glows;
in the heat of action. 1 Kent, Comm. 120.
DUM FUIT IN PRISONA. In English law. A
writ which lay for a man who had aliened lands
under duress by imprisonment, to restore to him
his proper estates. 2 Inst. 482. Abolished by St.
3 & 4 Wm. IV. c. 27.
DUKE, in English law, is a title of nobility, ranking immediately next to the Prince of Wales. It
is only a title of dignity. Conferring it does not
give any domain, territory, or jurisdiction over the
place whence the title is taken. Duchess, the consort of a duke. Wharton.
DUKE OF EXETER'S DAUGHTER. The name
of a rack in the Tower, so called after a minister
of Henry VI, who sought to introduce it into England.
DUKE OF.YORK'S LAWS. A body of laws compiled in 1665 for the government of the colony of
New York.
DULOCRACY. A government where servants
and slaves have so much license and privilege
that they domineer. Wharton.
DULY. In due or proper form or manner; according to legal requirements.
Regularly; properly; suitable; upon a proper
foundation, as distinguished from mere form; according to law in both form and substance. Welborn v. Whitney, 190 Okl. 630, 126 P.2d 263, 266;
Cromwell v. Slaney, C.C.A.Mass., 65 F.2d 940, 941;
Zechiel v. Firemen's Fund Ins. Co., C.C.A.Ind., 61
F.2d 27, 28.
DULY ORDAINED MINISTER OF RELIGION.
Person who has been ordained in accordance with
the ceremonial, ritual, or discipline of a recognized
church, religious sect, or religious organization,
to teach and preach its doctrines and to administer its rites and ceremonies and public worship,
and who customarily performs those duties. In
re Rogers, D.C.Tex., 47 F.Supp. 265, 266.
DULY QUALIFIED. Being "duly qualified" to
fill an office, in the constitutional sense and in the
ordinary acceptation of the words, means that
the officer shall possess every qualification; that
he shall in all respects comply with every requisite before entering on duties of the office; that,
in addition to being elected by the qualified electors, he shall be commissioned by the governor,
give bond as required by law; and that he shall
be bound by oath or affirmation to support the
Constitution of the commonwealth, and to perform the duties of the office with fidelity. Commonwealth v. Lomas, 302 Pa. 97, 153 A. 124, 126,
74 A.L.R. 481; State ex rel. Landis v. Bird, 120
Fla. 780, 163 So. 248.
DUM. Lat. While; as long as; until; upon condition that; provided that.
DUM BENE SE GESSERIT. While he shall conduct himself well; during good behavior. Expressive of a tenure of office not dependent upon
the pleasure of the appointing power, nor for a
limited period, but terminable only upon the death
or misconduct of the incumbent.
DUM FUIT INFRA )ETATEM. (While he was
within age.) In old English practice. A writ of
entry which formerly lay for an infant after he
had attained his full age, to recover lands which
he had aliened in fee, in tail, or for life, during his
infancy; and, after his death, his heir had the
same remedy. Reg.Orig. 228b; Fitzh. Nat. Brev.
192, G; Litt. § 406; Co.Litt. 247b.
DUM NON FUIT COMPOS MENTIS. The name
of a writ which the heirs of a person who was
non compos mentis, and who aliened his lands,
might have sued out to restore him to his rights.
Abolished by 3 & 4 Wm. IV. c. 27.
DUM RECENS FUIT MALEFICIUM. While the
offense was fresh. A term employed in the old
law of appeal of rape. Bract. fol. 147.
DUM SOLA. While sole, or single. Dum sola
fuerit, while she shall remain sole. Dum sola et
casta vixerit, while she lives single and chaste.
Words of limitation in old conveyances. Co.Litt.
235a. Also applied generally to an unmarried
woman in connection with something that was or
might be done during that condition.
DUMB. One who cannot speak; a person who
is mute.
DUMB-BIDDING. In sales at auction, when the
minimum amount which the owner will take for
the article is written on a piece of paper, and
placed by the owner under a candlestick, or other
thing, and it is agreed that no bidding shall avail
unless equal to that, this is called "dumb-bidding."
Bab. Auct. 44.
DUMMODO. Provided; provided that. A word
of limitation in the Latin forms of conveyances, of
frequent use in introducing a reservation; as in
reserving a rent.
DUMMY, n. One who holds legal title for another; a straw man. Hegstad v. Wysiecki, 178
App.Div. 733, 165 N.Y.S. 898, 900. Space 61/2 feet
in width between street railroad tracks. Schroeder v. Pittsburgh Rys. Co., 311 Pa. 398, 165 A.
733.
DUMMY, adj. Sham; make-believe; pretended;
imitation. U. S. v. Warn, D.C.Idaho, 295 F. 328,
330. As respects basis for predicating liability
on parent corporation for acts of subsidiary,
"agency," "adjunct," "branch," "instrumentality,"
"dummy," "buffer," and "tool" all mean very
much the same thing. Lowendahl v. Baltimore &
0. R. Co., 287 N.Y.S. 62, 74, 247 App.Div. 144.
DUMMY DIRECTOR. One to whom (usually) a
single share of stock in a corporation is transfer-
591
DUMP
red for the purpose of qualifying him as a director
of the corporation, in which he has no real or active interest. Ashby v. Peters, 128 Neb. 338, 258
N.W. 639, 99 A.L.R. 843. One who is a mere figurehead and in effect discharges no duties. Golden
Rod Mining Co. v. Bukvich, 108 Mont. 569, 92 P.
2d 316, 319.
DUMP. To put or throw down with more or less
of violence; to unload. Baney v. Chicago, B. & Q.
R. Co., 116 Neb. 615, 218 N.W. 424, 428. To drop
down; to deposit something in a heap or unshaped mass. Lambert v. City of Port Arthur, Tex.,
22 S.W.2d 320, 321.
DUMP CARS. A cart or car having a body that
can be tilted or a bottom opening downwards for
emptying. Baney v. Chicago, B. & Q. R. Co., 116
Neb. 615, 218 N.W. 424, 428.
DUMPING. In commercial usage, the act of selling in quantity at a very low price or practically
regardless of the price; also, selling (surplus
goods) abroad at less than the market price at
home. Webster, Dict. The act of forcing a product such as cotton on the market during the
short gathering season. Arkansas Cotton Growers' Co-op. Ass'n v. Brown, 270 S.W. 946, 953, 168
Ark. 504.
DUMPING BOARD. An elevated structure of
timber, which. in part overhangs the water, to enable a scow to go under it for the purpose of
taking oft a load. Healey v. Moran Towing &
Transportation Co., C.C.A.N.Y., 253 F. 334, 337.
DUN. One who duns or urges for payment; a
troublesome creditor. A demand for payment
whether oral or written. Stand. Dict.
A mountain or high open place. The names of
places ending in dun or don were either built on
hills or near them in open places.
DUNA. In old records. A bank of earth cast
up; the side of a ditch. Cowell.
DUNGEON. Such an underground prison or cell
as was formerly placed in the strongest part of
a fortress; a dark or subterraneous prison.
DUNIO. A double; a kind of base coin less than
a farthing.
DUNNAGE. Pieces of wood placed against the
sides and bottom of the hold of a vessel, to preserve the cargo from the effect of leakage, according to its nature and quality. Abb.Shipp. 227.
There is considerable resemblance between dunnage and ballast. The latter is used for trimming
the ship, and bringing it down to a draft of water
proper, and safe for sailing. Dunnage is placed
under the cargo to keep it from being wetted by
water getting into the hold, or between the different parcels to keep them from bruising and injuring each other. Great Western Ins. Co. v.
Thwing, 13 Wall. 674, 20 L.Ed. 607; Richards v.
Hansen, C.C.Mass., 1 F. 56.
"Dunnage" belongs to the category of crating
and boxing employed to protect more valuable ar-
titles in shipment, the weight of which, unless
some provision to the contrary appears in a tariff
classification, naturally takes the rate applicable
to the contents. "Dunnage" used in blocking and
securing automobiles was held subject to the automobile rate and not to the lumber rate, under
tariff classification providing charges shall be
computed on gross weights. Butler Motor Co. v,
Atchison, T. & S. F. Ry. Co., C.C.A.Mo., 272 F.
683, 684.
DUNSETS. People that dwell on hilly places or
mountains. Jacob.
DUO NON POSSUNT IN SOLIDO UNAM REM
POSSIDERE. Two cannot possess one thing in
entirety. Co.Litt. 368.
DUO SUNT INSTRUMENTA AD OMNES RES
AUT CONFIRMANDAS AUT IMPUGNANDAS,
RATIO ET AUTHORITAS. There are two instruments for confirming or impugning all things,—
reason and authority. 8 Coke, 16.
DUODECEMVIRALE JUDICIUM. The trial by
twelve men, or by jury. Applied to juries de
medietate linguce. Mol. de Jure Mar. 448.
DUODECIMA MANUS. Twelve hands. The
oaths of twelve men, including himself, by whom
the defendant was allowed to make his law. 3 Bl.
Comm. 343.
DUODENA. In old records. A jury of twelve
men. Cowell.
DUODENA MANU. A dozen hands, is e., twelve
witnesses to purge a criminal of an offense.
DUODENUM. The intestine that joins onto the
lower portion of the stomach and that goes out
of the stomach. Metropolitan Life Ins. Co. v.
Crowder, 71 Ga.App. 612, 31 S.E.2d 618, 620.
DUORUM IN SOLIDUM DOMINIUM VEL POSSESSIO ESSE NON POTEST. Ownership or possession in entirety cannot be in two persons of
the same thing. Dig. 13, 6, 5, 15; Mackeld. Rom.
Law, § 245. Bract. fol. 28b.
DUPLA. In the civil law. Double the price of a
thing. Dig. 21, 2, 2.
DUPLEX HOUSE. A house which has accommodations for two families on two or more floors,
without regard to whether such accommodations
are identical or not. Donnelly v. Spitza, 246 Mich.
284, 224 N.W. 396, 397.
DUPLEX QUERELA. A double complaint. An
ecclesiastical proceeding, which is in the nature
of an appeal. Phillim.Ecc.Law, 440. See Double
Complaint.
DULPEX VALOR MARITAGII. In old English
law. Double the value of the marriage. While
an infant was in ward, the guardian had the power of tendering him or her a suitable match, without disparagement, which if the infants refused,
they forfeited the value of the marriage to their
guardian, that is, so much as a jury would assess
592
DURANTE
or any one would give to the guardian for such
an alliance; and, if the infants married themselves
without the guardian's consent, they forfeited double the value of the marriage. 2 Bl.Comm. 70;
Litt. § 110; Co.Litt. 82b.
DUPLICATE, v. To double, repeat, make, or add
a thing exactly like a preceding one; reproduce
exactly. State v. Ogden, 20 N.M. 636, 151 P. 758,
760.
DUPLICATE, n. When two written documents
are substantially alike, so that each might be a
copy or transcript from the other, while both
stand on the same footing as original instruments,
they are called "duplicates." Agreements, deeds,
and other documents are frequently executed in
duplicate, in order that each party may have an
original in his possession. Lorch v. Page, 97
Conn. 66, 115 A. 681, 682, 24 A.L.R. 1204.
A duplicate is sometimes defined to be the "copy" of a
thing ; but, though generally a copy, a duplicate differs
from a mere copy, in having all the validity of an original.
Nor, it seems need it be an exact copy. Defined also to be
the "counterpart" of an instrument; but in indentures
there is a distinction between counterparts executed by the
several parties respectively, each party affixing his or her
seal to only one counterpart, and duplicate originals, each
executed by all the parties. Maston v. Glen Lumber Co.,
65 Okl. 80, 163 P. 128, 129. The old indentures, charters, or
chirographs seem to have had the character of duplicates.
Burrill.
That which exactly resembles or corresponds to something else; another, correspondent to the first; hence, a
copy; transcript; counterpart; an original instrument
repeated; a document the same as another in essential
particulars; differing from a copy as being valid as an
original. Baker v. Sovereign Camp, W. 0. W., Mo.App.,
116 S.W.2d 513, 517.
The term is also frequently used to signify a
new original, made to take the place of an instrument that has been lost or destroyed, and to have
the same force and effect. Benton v. Martin, 40
N.Y. 347.
DUPLICITOUS. A pleading which joins in one
and the same count different grounds of action of
different nature, or of the same nature, to enforce a single right to recovery, or which is
based on different theories of the defendant's liability. Peck v. Woomack, Nev., 192 P.2d 874, 884.
In an information the joinder of separate and distinct offenses in one and the same count. State v.
Seward, 163 Kan. 136, 181 P.2d 478, 480.
DUPLICITOUS APPEAL. Appeal from two separate judgments or from judgment and order or
from two independent orders, both of which are
appealable. City of Duncan v. Abrams, 171 Oki.
619, 43 P.2d 720, 723.
DUPLICITY. The technical fault, in pleading, of
uniting two or more causes of action in one count
in a writ, or two or more grounds of defense in
one plea, or two or more breaches in a replication, or two or more offenses in the same count
of an indictment, or two or more incongruous subjects in one legislative act, or two or more controverted ultimate issues submitted in a single special issue. Empire Oil & Gas Corporation v. U. S.,.
C.C.A.Cal., 136 F.2d 868, 872; People v. Link, 365
Ill. 266, 6 N.E.2d 201, 207; Clay Drilling Co. v.
Furman, Tex.Civ.App., 150 S.W.2d 869, 871; Hartley v. Hartley, 198 Ga. 294, 31 S.E.2d 655.
DUPLY, n. (From Lat. duplicatio, q. v.)
In
Scotch pleading. The defendant's answer to the
plaintiff's replication.
DUPLY, v. In Scotch pleading. To rejoin. "It
is duplyed by the panel." 3 State Trials, 471.
DUPUYTREN'S CONTRACTION. A pathological condition involving the palmar fascia of thehands. American Maize Products Co. v. Nichiporchik, 108 Ind.App. 502, 29 N.E.2d 801, 802.
The ticket given by a pawnbroker to the pawner of a chattel.
DURABLE LEASES. Leases reserving a rent pay
able annually, with right of re-entry for nonpayment of the same, and for the term "as long as
grass grows or water runs," or equivalent terms.
University of Vermont and State Agr. College v.
Ward, Vt., 158 A. 773, 778.
DUPLICATE TAXATION. The same as "double
taxation." See that title.
DURALUMIN. A light weight aluminum alloy.
Reed Propeller Co. v. United States, Ct.C1., 42 F.
Supp. 545, 567.
In English law. The certificate of discharge
given to an insolvent debtor who takes the benefit of the act for the relief of insolvent debtors.
DUPLICATE WILL. A term used in England,
where a testator executes two copies of his will,
one to keep himself, and the other to be deposited
with another person. Upon application for probate of a duplicate will, both copies must be deposited in the registry of the court of probate.
DUPLICATIO. In the civil law. The defendant's
answer to the plaintiff's replication; corresponding to the rejoinder of the common law.
DUPLICATIONEM POSSIBILITATIS LEX NON
PATITUR. The law does not allow the doubling
of a possibility. 1 Rolle, 321.
DUPLICATUM JUS. Double right. Bract. fol.
283b. See Droit-Droit.
Black's Law Dictionary Revised 4th Ed.-38
DURANTE. Lat. During. A word of limitation
in old conveyances. Co.Litt. 234b.
DURANTE ABSENTIA. During absence. In
some jurisdictions, administration of a decedent's
estate is said to be granted durante absentia in
cases where the absence of the proper proponents of the will, or of an executor, delays or imperils the settlement of the estate.
DURANTE BENE PLACITO. During good pleasure. The ancient tenure of English judges was
durante bene placito. 1 Bl.Comm. 267, 342.
DURANTE MINORE IETATE. During minority.
2 Bl.Comm. 503; 5 Coke, 29, 30. Words taken
from the old form of letters of administration.
5 Coke, ubi supra.
593
DURANTE
DURANTE VIDUITATE. During widowhood. 2
Bl.Comm. 124. Durante casta viduitate, during
chaste widowhood. 10 East, 520.
DURANTE VIRGINITATE. During virginity,
(so long as she remains unmarried.)
DURANTE VITA. During life.
DURATION. Extent, limit or time. People v.
Hill, 7 Cal. 102. The portion of time during which
anything exists. Morrison v. Farmers' & Traders' State Bank, 70 Mont. 146, 225 P. 123, 125.
DURBAR. In India. A court, audience, or levee.
Mozley & Whitley.
DURESS, v. To subject to duress. A word used
by Lord Bacon. "If the party duressed do make
any motion," etc. Bac. Max. 89, reg. 22.
DURESS, n. Unlawful constraint exercised upon
a man whereby he is forced to do some act that
he otherwise would not have done. It may be either "duress of imprisonment," where the person is
deprived of his liberty in order to force him to
compliance, or by violence, beating, or other actual injury, or duress per minas, consisting in
threats of imprisonment or great physical injury
or death. Duress may also include the same injuries, threats, or restraint exercised upon the
man's wife, child, or parent. Coughlin v. City of
Milwaukee, 227 Wis. 357, 279 N.W. 62, 67, 119 A.
L.R. 990; Radich v. Hutchins, 95 U.S. 213, 24 L.
Ed. 409.
Duress consists in any illegal imprisonment, or
legal imprisonment used for an illegal purpose,
or threats of bodily or other harm, or other means
amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will. Heider v. Unicume, 142 Or.
410, 20 P.2d 384, 385; Shlensky v. Shlensky, 369
Ill. 179, 15 N.E.2d 694, 698. And it is never "duress" to threaten to do that which a party has a
legal right to do. Doernbecher v. Mutual Life
Ins. Co. of New York, 16 Wash.2d 64, 132 P.2d 751,
755, 756; Miller v. Walden, 53 Cal.App.2d 353, 127
P.2d 952, 956, 957. Such as, instituting or threatening to institute civil actions. Standard Radio
Corporation v. Triangle Radio Tubes, 125 N.J.L.
131, 14 A.2d 763, 765; Shipman v. Moseley, 319
Ill.App. 443, 49 N.E.2d 662, 666.
DURESS OF GOODS. Where the act consists of
a tortious seizure or detention of property from
the person entitled to it, and requires some act as
a condition for its surrender, the act is "duress of
goods". Sistrom v. Anderson, 51 Cal.App.2d 213,
124 P.2d 372, 376.
DURESS OF IMPRISONMENT. The wrongful
imprisonment of a person, or the illegal restraint
of his liberty, in order to compel him to do some
act. 1 Bl.Comm. 130, 131, 136, 137; 1 Steph.Comm.
137; 2 Kent, Comm. 453.
DURESS PER MINAS. Duress by threats. The
use of threats and menaces to compel a person,
by the fear of death, or grievous bodily harm, as
mayhem or loss of limb, to do some lawful act,
or to commit a misdemeanor. 1 Bl.Comm. 130;
4 Bl.Comm. 30; 4 Steph.Comm. 83; In re Nightingale's Estate, 182 S.C. 527, 189 S.E. 890, 898. See
Metus.
DURESSOR. One who subjects another to duress;
one who compels another to do a thing, as by menace. Bac.Max. 90, reg. 22.
DURHAM. A county palatine in England, the
jurisdiction of which was vested in the Bishop of
Durham until the statute 6 & 7 Wm. IV. c. 19,
vested it as a separate franchise and royalty in
the crown. The jurisdiction of the Durham court
of pleas was transferred to the supreme court of
judicature by the judicature act of 1873.
DURHAM RULE. The irresistible impulse test of
criminal responsibility. The rule states that when
there is some evidence that the accused suffered
from a diseased or defective mental condition at
the time the unlawful act was committed the accused is not criminally responsible if it is found
beyond a reasonable doubt that the act was the
product of such mental abnormality. Durham v.
United States, C.A.D.C., 214 F.2d 862, 875.
DURING. Throughout the course of; throughout
the continuance of; in the time of; after the commencement and before the expiration of. Continental Bank & Trust Co. of N. Y. v. Chemical
Bank & Trust Co., 51 N.Y.S.2d 903, 909:
DURING GOOD BEHAVIOR. While defendant
whose sentence had been suspended, was obedient
to the state law. State v. Hardin, 183 N.C. 815,
112 S.E. 593, 595.
DURING THE HOURS OF SERVICE. Workinghours plus reasonable periods for ingress and
egress. Lienau v. Northwestern Telephone Exch.
Co., 151 Minn. 258, 186 N.W. 945, 946.
DURING THE TRIAL. Period beginning with
swearing of jury and ending with rendition of
verdict. Kokas v. Commonwealth, 237 S.W. 1090,
1091, 194 Ky. 44. Period commencing with presentation of indictment by grand jury to court and
terminating with final judgment. State v. Hudson, 55 R.I. 141, 179 A. 130, 133, 100 A.L.R. 313.
DURSLEY. In old. English law. Blows without
wounding or bloodshed; dry blows. Blount.
DUST EXPLOSION. Almost instantaneous combustion of myriads of small particles of solid matter held in suspension by air. Cornec v. Baltimore
& 0. R. Co., C.C.A.Md., 48 F.2d 497, 500.
DUSTUCK. A term used in Hindostan for a passport, permit, or order from the English East Indian Company. It generally meant a permit under
their seal exempting goods from the payment of
duties. Enc.Lond.
DUTCH AUCTION. See Auction.
594
'DWELL
DUTCH LOTTERY. Also known as the "class
lottery." As distinguished from the "Genoese
lottery" (q. v.), it is a scheme in which the number and value of the prizes are regularly estimated, all the ticket holders are interested at
once in the play, and chance determines whether
a prize or a blank falls to a given number. Fleming v. Bills, 3 Or. 286.
DUTCH NET. A kind of fishing net commonly
known as a "pound net" (q. v.).
DUTIES. In its most usual signification this word
is the synonym of imposts or customs; but it is
sometimes used in a broader sense, as including
all manner of taxes, charges, or governmental
impositions. Cooley v. Board of Wardens, 12 How.
299, 13 L.Ed. 996.
DUTIES OF DETRACTION. Taxes levied upon
the removal from one state to another of property acquired by succession or testamentary disposition. Frederickson v. Louisiana, 23 How. 445,
16 L.Ed. 577; In re Strobel's Estate, 5 App.Div.
621, 39 N.Y.S. 169. Cf. Droit de detraction.
DUTIES ON IMPORTS. This term signifies not
merely a duty on the act of importation, but a
duty on the thing imported. It is not confined
to a duty levied while the article is entering the
country, but extends to a duty levied after it has
entered the country. Brown v. Maryland, 12
Wheat. 437, 6 L.Ed. 678.
DUTY. A human action which is exactly conformable to the laws which require us to obey them.
Chicago, etc., R. Co. v. Filson, 35 Oki. 89, 91, 128
P. 298.
The words, "it shall be the duty," in ordinary legislation, imply the assertion of the power to command and to
coerce obedience. Kentucky v. Dennison, 24 How. 66, 107,
16 L.Ed. 717.
In its use in jurisprudence, this word is the correlative of right. Thus, wherever there exists
a right in any person, there also rests a corresponding duty upon some other person or upon
all persons generally. But it is also used, in a
wider sense, to designate that class of moral obligations which lie outside the jural sphere; such,
namely, as rest upon an imperative ethical basis,
but have not been recognized by the law as within
its proper .province for purposes of enforcement
or redress. Thus, gratitude towards a benefactor
is a duty, but its refusal will not ground an action.
In this meaning "duty" is the equivalent of "moral
obligation," as distinguished from a "legal obligation." Harrison v. Bush, 5 El. & Bl. 349.
Duty is considered by some modern ethicists to be the
fundamental conception of ethics and to be subject to
intuitive knowledge; by others it is conceived as that
which is ethically valid because sanctioned by law, society,
or religion. Webster, Dict.
As a technical term of the law, "duty" signifies a
thing due; that which is due from a person ; that
which a person owes to another. An obligation to
do a thing. A word of more extensive signification than "debt," although both are expressed by
the same Latin word "debitum." Bankers' Deposit
Guaranty & Surety Co. v. Barnes, 81 Kan. 422, 105
P. 697, 698. Sometimes, however, the term is used
synonymously with debt. Fox v. Hills, 1 Conn.
295, 303.
But in practice it is commonly reserved as the
designation of those obligations of performance,
care, or observance which rest upon a person in
an official or fiduciary capacity; as the duty of
an executor, trustee, manager, etc. Goodwine v.
Vermilion County, 271 Iii. 126, 110 N.E. 890, 892.
It also denotes a tax or impost due to the government upon the importation or exportation of
goods.
Judicial Duty. See Judicial.
Legal Duty. See Legal Duty.
DUTY OF TONNAGE. A charge upon a vessel
as an instrument of commerce for entering, lying
in or leaving a port, and includes all taxes and duties, regardless of name or form. In re Los Angeles Lumber Products Co., D.C.Cal., 45 F.Supp.
77, 81; Marine Lighterage Corporation v. Luckenbach S. S. Co., 139 Misc. 612, 248 N.Y.S. 71, 72.
DUTY OF WATER. Such a quantity of water
necessary when economically conducted and applied to land without unnecessary loss as will
result in the successful growing of crops. Enterprise Irr. Dist. v. Willis, 135 Neb. 827, 284 N.W. 326,
329.
DUUMVIRI. (From duo, two, and viri, men.) A
general appellation among the ancient Romans,
given to any magistrates elected in pairs to fill
any office, or perform any function. Brande.
Duumviri municipales were two annual magistrates in the towns and colonies, having judicial
powers. Calvin.
Duumviri navales were officers appointed to
man, equip, and refit the navy. Calvin.
DUX. A military governor of a province. See
Cod. 1, 27, 2. A military officer having charge of
the borders or frontiers of the empire, called
"dux limitis." Cod. 1, 49, 1, pr. At this period, the
word began to be used as a title of honor or dignity.
In Roman law. A leader or military commander. The commander of an army. Dig. 3, 2, 2, pr.
In feudal and old European law. Duke; a title
of honor, or order of nobility. 1 Bl.Comm. 397;
Crabb, Eng.Law, 236.
DWELL. To have an abode; to inhabit; to live
in a place. Gardener v. Wagner, 9 Fed.Cas. 1,154;
Putnam v. Johnson, 10 Mass. 502; Eatontown v.
Shrewsbury, 49 N.J.Law, 188, 6 A. 319. More than
mere physical presence is sometimes required. It
must be in conformity with law. Kaplan v. Tod,
45 S.Ct. 257, 267 U.S. 228, 69 L.Ed. 585; U. S. v.
Tod, D.C., 292 F. 243, 245.
To delay, to pause or linger, to abide as a permanent residence or for a time; to live in a place,
to have one's residence or domicile, to reside. It
595
DWELLING
is synonymous with inhabit, live, sojourn, stay,
rest. MacLeod v. Stelle, 43 Idaho, 64, 249 P. 254,
256.
not a dying without issue surviving at the time of
the death of the first taker. But this rule has
been changed in some of the states, by statute or
decisions, and in England by St. 7 Wm. IV, and 1
Vict. c. 26, § 29.
The words "die without issue," and "die without leaving
issue," in a devise of real estate, import an indefinite failure of issue, and not the failure of issue at the death of the
first taker. And no distinction is to be made between the
words "without issue" and "without leaving issue." Harwell v. Harwell, 151 Tenn. 587, 271 S.W. 353, 355.
In Connecticut and other states it has been repeatedly
held that the expression "dying without issue," and like
expressions, have reference to the time of the death of the
party, and not to an indefinite failure of issue. Phelps v.
Phelps, 55 Conn. 359, 11 A. 596; Briggs v. Hopkins, 103
Ohio St. 321, 132 N.E. 843.
Dying without children imports not a failure of issue at
any indefinite future period, but a leaving no children at
the death of the legatee. Condict v. King, 13 N.J.Eq. 375.
The law favors vesting of estates, and limitation such as
"dying without issue," refers to a definite period, fixed in
will, rather than to an indefinite failure of issue. Howard
v. Howard's Trustee, 212 Ky. 847, 280 S.W. 156, 157. Where
context is such as to show clearly that testator intended
the phrase "die without issue" to mean that, if first taker
die without issue during life of testator, the second taker
shall stand in his place and prevent a lapse, the words "die
without issue" are taken to mean death during life of
testator. Martin v. Raff, 114 Ind.App. 507, 52 N.E.2d 839,
845.
DWELLING HOUSE. The house in which a man
lives with his family; a residence; abode; habitation; the apartment or building, or group of
buildings, occupied by a family as a place of residence.
"Dwelling house" is a very flexible term. Its meaning
depends not only on context, but on the determination of
the courts not to permit public policy or justice to be
defeated by a word. "Dwelling house" often means any
building within the curtilage. Daniels v. Commonwealth,
172 Va. 583, 1 S.E.2d 333, 335. It may mean a single house
used by one family exclusively as a home. It may include
an apartment building, or any structure used by human
beings, partly for business and partly for residential purposes, or a building regardless of habitation. Gerstell v.
Knight, 345 Pa. 83, 26 A.2d 329, 330.
In conveyancing. Includes all buildings attached to or connected with the house. 2 Hil.Real
Prop. 338, and note. In the law of burglary. A
house in which the occupier and his family usually
reside, or, in other words, dwell and lie in. Whart.
Crim.Law, 357. Temporary absence will not destroy character as "dwelling house." Haynes v.
State, 180 Miss. 291, 177 So. 360; State v. Bair,
112 W.Va. 655, 166 S.E. 369, 370, 85 A.L.R. 424.
DYKE-REED, or DYKE-REEVE. An officer who
has the care and oversight of the dykes and drains
in fenny counties.
Private Dwelling
Within a restrictive covenant, a place or house
in which a person or family lives in an individual
or private state, the covenant being violated by the
conversion of a house theretofore used as a residence for a single family into a residence for two
families, even though the outward appearance of
the house was not materially affected. Paine v.
Bergrose Development Corp., 198 N.Y.S. 311, 312,
119 Misc. 796. The distinction between a boarding
house and a "private dwelling house" is whether
the house is occupied as a home for the occupant
and his wife and child, or whether he occupied it
as a place for carrying on the business of keeping
boarders, although while prosecuting the business
and as a means of prosecuting it, he and his wife
and children live in the house also. Trainor v. Le
Beck, 101 N.J.Eq. 823, 139 A. 16, 17.
DYNASTY. A succession of kings in the same line
or family.
DYSNOMY. Bad legislation; the enactment
bad laws.
of
DYSPAREUNIA. In medical jurisprudence. Incapacity of a woman to sustain the act of sexual
intercourse except with great difficulty and pain;
anaphrodisia (which see).
DWELLING-PLACE, or home, is some permanent
abode or residence, in which one has the intention
of remaining; it is not synonymous with "domicile," as used in international law, but has a more
limited and restricted meaning. Nor is it synonymous with a "place of pauper settlement." Lisbon
v. Lyman, 49 N.H. 553.
DYED HANGING PAPER. See Hanging Paper.
DYING DECLARATION. See Declaration.
DYING WITHOUT ISSUE. At common law this
phrase imports an indefinite failure of issue, and
DYSPEPSIA. A state of the stomach in which its
functions are disturbed, without the presence of
other diseases, or when, if other diseases are present, they are of minor importance. Dungl.Med.
Dict.
DYVOUR. In Scotch law. A bankrupt.
DYVOUR'S HABIT. In Scotch law. A habit
which debtors who are set free on a cessio bonorum are obliged to wear, unless in the summons
and process of cessio it be libeled, sustained, and
proved that the bankruptcy proceeds from misfortune. And bankrupts are condemned to submit to the habit, even where no suspicion of fraud
lies against them, if they have been dealers in
an illicit trade. Ersk.Prin. 4, 3, 13.
596
E
E. As an abbreviation, this letter may stand for
"Exchequer," "English," "Edward," "Equity,"
"East," "Eastern," "Easter," or "Ecclesiastical."
A Latin preposition, meaning from, out of, after,
or according. It occurs in many Latin phrases;
but (in this form) only before a consonant.
E. E. 0. C. Equal Employment Opportunity Commission.
E. G. An abbreviation of exempli gratia. For the
sake of an example.
E. 0. E. Errors and omissions excepted. Vernon
Metal & Produce Co. v. Joseph Joseph & Bros.
Co., 212 App.Div. 358, 209 N.Y.S. 6, 11.
E CONTRA. From the opposite; on the contrary.
E CONVERSO. Conversely. On the other hand;
on the contrary. Equivalent to e contra.
E MERA GRATIA. Out of mere grace or favor.
E PILL ANA. Hawaiian. Adjoining.
E PLURIBUS UNUM. One out of many. The
motto of the United States of America.
EA. Sax. The water or river; also the mouth
of a river on the shore between high and low water-mark.
EA EST ACCIPIENDA INTERPRETATIO, QUIE
VITIO CARET. That interpretation is to be received [or adopted] which is free from fault [or
wrong.] The law will not intend a wrong. Bac.
Max. 17, (in reg. 3.)
EA INTENTIONE. With that intent. Held not
to make a condition, but a confidence and trust.
Dyer, 138b.
EA QUIE, COMMENDANDI CAUSA, IN VENDITIONIBUS DICUNTUR, SI PALAM APPAREANT, VENDITOREM NON OBLIGANT. Those
things which are said on sales, in the way of commendation, if [the qualities of the thing sold] appear openly, do not bind the seller. Dig. 18, 1, 43,
pr.
EA QUIE DART IMPOSSIBILIA SUNT, VEL
QUIE IN ,RERUM NATURA NON SUNT, PRO
NON ADJECTIS HABENTUR. Those things
which are impossible to be given, or which are
not in the nature of things, are regarded as not
added, [as no part of an agreement.] Dig. 50, 17,
135.
EA QUIE IN CURIA NOSTRA RITE ACTA
SUNT DEBITIE EXECUTION! DEMANDARI
DEBENT. Co.Litt. 289. Those things which are
properly transacted in our court ought to be committed to a due execution.
EA QUIE RARO ACCID'UNT NON TEMERE IN
AGENDIS NEGOTIIS COMPUTANTUR. Those
things which rarely happen are not to be taken
into account in the transaction of business without
sufficient reason. Dig. 50, 17, 64. -
EACH. A distributive adjective pronoun, which
denotes or refers to every one of the persons or
things mentioned; every one of two or more persons or things, composing the whole, separately
considered. The effect of this word, used in the
covenants of a bond, is to create a several obligation. Seiler v. State, 160 Ind. 605, 67 N.E. 448;
Knickerbocker v. People, 102 Ill. 233; Costigan v.
Lunt, 104 Mass. 219; State v. Monfred, 183 Md.
303, 37 A.2d 912, 914. The word "any" is equivalent to "each." Conerty v. Richtsteig, 308 Ill.App.
321, 31 N.E.2d 351.
EADEM CAUSA DIVERSIS RATIONIBUS CORAM JUDICIBUS ECCLESIASTIC'S ET SECULARIBUS VENTILATOR. 2 Inst. 622. The same
cause is argued upon different principles before
ecclesiastical and secular judges.
EST RATIO, EADEM EST LEX. The
same reason, the same law. Charles River Bridge
v. Warren Bridge, 7 Pick. (Mass.) 493.
EADEM
EADEM MENS PRZESUMITUR REGIS QUA EST
JURIS ET QUIE ESSE DEBET, PRZESERTIM
IN DUBIIS. Hob. 154. The mind of the sovereign
is presumed to be coincident with that of the law,
and with that which it ought to be, especially in
ambiguous matters.
EAGLE. A gold coin of the United States of the
value of ten dollars.
EALDER, or EALDING. In old Saxon law. An
elder or chief.
EALDERMAN, or EALDORMAN. The name of a
Saxon magistrate; alderman; analogous to earl
among the Danes, and senator among the Romans. See Alderman.
The name of Ealdorman is one of a large class; among
a primitive people age implies command and command
implies age; hence, in a somewhat later stage of language,
the elders are simply the rulers. 1 Freeman, Norman Conquest, 51, quoted in Cent.Dict.
EALDOR-BISCOP. An archbishop.
EALDORBURG. Sax. The metropolis; the chief
city. Obsolete.
EALEHUS. (Fr. eale, Sax., ale, and hus, house.)
An ale-house.
EALHORDA. Sax. The privilege of assising and
selling beer. Obsolete.
EAR GRASS. In English law. Such grass which
is upon the land after the mowing, until the feast
of the Annunciation after. 3 Leon. 213.
EAR-MARK. A mark put upon a thing to distinguish it from another. Originally and literally,
a mark upon the ear; a mode of marking sheep
and other animals.
597
EAR
Property is said to be ear-marked when it can
be identified or distinguished from other property
of the same nature.
Money has no ear-mark, but it is an ordinary
term for a privy mark made by any one on a coin.
EARNER. One whose personal efforts produces
income, or who owns property which produces it,
or combination of both. Van Meter v. Commissioner of Internal Revenue, C.C.A., 61 F.2d 817,
818; Wells v. Commissioner of Internal Revenue,
C.C.A., 63 F.2d 425, 430.
EAR-MARK RULE. Rule that through the process of commingling money or deposit with the
funds of a bank it loses its identity, with the resultant effect of defeating the right of preference
over general creditors. Hitt Fireworks Co. v.
Scandinavian American Bank of Tacoma, 121
Wash. 261, 209 P. 680, 682.
EARNEST. The payment of a part of the price
of goods sold, or the delivery of part of such
goods, for the purpose of binding the contract.
Weidner v. Hyland, 216 Wis. 12, 255 N.W. 134.
A token or pledge passing between the parties,
by way of evidence, or ratification of the sale. 2
Kent, Comm. 495, note.
EAR-WITNESS. In the law of evidence. One
who attests or can attest anything as heard by
himself.
EARNING CAPACITY. "Earning capacity" does
not necessarily mean the actual earnings that one
who suffers an injury was making at the time the
injuries were sustained, but refers to that which,
by virtue of the training, the experience, and the
business acumen possessed, an individual is capable of earning. Texas Electric Ry. v. Worthy,
Tex.Civ.App., 250 S.W. 710, 711. Not saving ability, but capacity to acquire money, less the necessary expense of his own living. Pitman v. Merriman, 80 N.H. 295, 117 A. 18, 19, 26 A.L.R. 589.
Fitness, readiness and willingness to work, considered in connection with opportunity to work.
Hartford Accident & Indemnity Co. v. Hoage, 85
F.2d 411, 416, 66 App.D.C. 154.
EARL. A title of nobility, formerly the highest
in England, now the third, ranking between a
marquis and a viscount, and corresponding with
the French "comte" and the German "graf." The
title originated with the Saxons, and is the most
ancient of the English peerage. William the Conqueror first made this title hereditary, giving it
in fee to his nobles; and allotting them for the
support of their state the third penny out of the
sheriff's court, issuing out of all pleas of the shire,
whence they had their ancient title "shiremen."
At present the title is accompanied by no territory,
private or judicial rights, but merely confers nobility and an hereditary seat in the house of lords.
Wharton.
EARNING POWER. Power of an individual to
create property. Reward for labor performed.
Ransom v. Matson Na y. Co., D.C.Wash., 1 F.Supp.
244, 246. Not synonymous with wages. Micek v.
Omaha Steel Works, 136 Neb. 843, 287 N.W. 645,
648.
EARL MARSHAL OF ENGLAND. A great officer of state who had anciently several courts under his jurisdiction, as the court of chivalry and
the court of honor. Under him is the herald's office, or college of arms. He was also a judge of
the Marshalsea court, now abolished. This office
is of great antiquity, and has been for several
ages hereditary in the family of the Howards. 3
Bl.Comm. 68, 103; 3 Steph.Comm. 335, note.
EARLDOM. The dignity or jurisdiction of an earl.
The dignity only remains now, as the jurisdiction
has been given over to the sheriff. 1 Bl.Comm.
339.
EARLES-PENNY, or EARL'S PENNY. Money
given in part payment. See Earnest; Arles.
EARLIER MATURITY RULE. The rule under
which bonds first maturing are entitled to priority
when sale of security is not sufficient to satisfy all
obligations. Scherk v. Newton, C.C.A.Colo., 152
F.2d 747, 749.
EARN. To acquire by labor, service or perform.
ance. Hartford Electric Light Co. v. McLaughlin,
37 A.2d 361, 363, 131 Conn. 1.
EARNED INCOME. Implies some labor, management or supervision in production thereof, not
income derived merely from ownership of property. Pennsylvania Co. for Insurances on Lives
& Granting Annuities v. City of Philadelphia, 346
Pa. 406, 31 A.2d 137, 141.
EARNINGS. That which is earned; money earned; the price of services performed; reward; the
reward of labor or the price of personal service
performed, the reward for personal services,
whether in money or chattels, the fruit or reward
of labor; the fruits of the proper skill, experience,
and industry; the gains of a person derived from
his services or labor without the aid of capital;
money or property gained or merited by labor,.
service, or the performance of something; that
which is gained or merited by labor, services,
or performances. Saltzman v. City of Council.
Bluffs, 214 Iowa 1033, 243 N.W. 161, 162. "Income"
is synonymous with "earnings." State ex rel.
Froedtert Grain and Malting Co. v. Tax Commission of Wisconsin, 221 Wis. 225, 265 N.W. 672, 673,.
104 A.L.R. 1478.
This term is used to denote a larger class of
credits than would be included in the term "wages." Somers v. Keliher, 115 Mass. 165; Jenks v..
Dyer, 102 Mass. 235.
The gains of the person derived from his services or labor without the aid of capital. Brown
v. Hebard, 20 Wis. 330, 91 Am.Dec. 408; United
Benefit Life Ins. Co. of Omaha v. Zwan, Tex.Civ.
App., 143 S.W.2d 977, 980. Either gross or net
earnings. Springfield Coal Mining Co. v. Industrial Commission, 291 Ill. 408, 126 N.E. 133, 22 A..
L.R. 859.
598
EASEMENT
A privilege, service, or convenience which one
neighbor has of another, by prescription, grant,
or necessary implication, and without profit; as
a way over his land, a gate-way, water-course, and
the like. Kitch. 105; 3 Cruise, Dig. 484. And see
Harrison v. Boring, 44 Tex. 267.
A liberty, privilege, or advantage without profit,
which the owner of one parcel of land may have
in the lands of another. Magnolia Petroleum Co.
v. Caswell, Tex., 1 S.W.2d 597, 600; Hasselbring v.
Koepke, 263 Mich. 466, 248 N.W. 869, 873, 93 A.
L.R. 1170.
Gross Earnings and Net Earnings
The gross earnings of a business or company
are the total receipts before deducting expenditures. Net earnings are the excess of the gross
earnings over the expenditures defrayed in producing them, and aside from and exclusive of
capital laid out in constructing and equipping the
works or plant. State v. Railroad Co., 30 Minn.
311, 15 N.W. 307. "Gross earnings" means all receipts from the employment of capital, without
deduction for expenses incurred. People ex rel.
Genesee Light & Power Co. v. Saxe, 165 N.Y.S.
938, 939, 179 App.Div. 486.
The land against which the easement or privilege exists
is called the "servient" tenement, and the estate to which
it is annexed the "dominant" tenement; and their owners
are called respectively the "servient" and "dominant"
owner. These terms are taken from the civil law. Saratoga State Waters Corporation v. Pratt, 227 N.Y. 429, 125
N.E. 834, 838; Joachim v. Belfus, 108 N.J.Eq. 622, 156 A.
121, 122; Brasengton v. Williams, 143 S.C. 223, 141 S.E.
375, 382.
Distinguished from "servitude", Stephenson v. St. Louis
Southwestern Ry. Co. of Texas, Tex.Civ.App., 181 S.W. 568,
572; "profit it prendre", Richfield Oil Co. of California v.
Hercules Gasoline Co., 112 Cal. App. 437, 297 P. 73, 75;
"covenant", Lingle Water Users' Ass'n v. Occidental Building & Loan Ass'n, 43 Wyo. 41, 297 P. 385, 387; "franchise", City of Fort Worth v. Southwestern Bell Telephone Co., C.C.A.Tex., 80 F.2d 972, 974; "restriction",
Kutschinski v. Thompson, 101 N.J.Eq. 649, 138 A. 569, -573;
Stanolind Pipe Line Co. v. Ellis, 142 Kan. 102, 45 P.2d 846,
848; Morrison v. Fellman, 271 N.Y.S. 436, 150 Misc. 772;
"prescription", Black v. Whitacre, 206 Iowa 1084, 221 N.W.
825.
Affirmative Easement
One where the servient estate must permit
something to be done thereon, as to pass over it,
or to discharge water on it. Miller v. Babb, Tex.
Com.App., 263 S.W. 253, 254.
Net Earnings Rule
The net earnings rule for assessing a special
franchise for taxation starts with the gross earnings for the year ending with the commencement
of the year for which the valuation is made from
which is deducted operating expenses and a fair
and reasonable return on that portion of the corporation's capital invested in tangible property,
the balance being deemed to give the net earnings attributable to the special franchise, the value
of which is then found by capitalizing such balance at a rate 1 per cent. higher than that found
as a matter of fact to be a fair and reasonable
return on the tangible property. People ex rel.
Third Ave. R. Co. v. State Board of Tax Com'rs,
142 N.Y.S. 986, 997, 157 App.Div. 731.
Surplus Earnings
Amount owned by company over and above its
capital and actual liabilities. People v. Com'rs
of Taxes, 76 N.Y. 74.
Apparent Easement
One the existence of which appears from the
construction or condition of one of the tenements,
so as to be capable of being seen or known on inspection. Miller v. Skaggs, 79 W.Va. 645, 91 S.E.
536, 537, Ann.Cas.1918D, 929.
EARNINGS OF PROSTITUTE. Income derived
from practice of prostitution. State v. Crane, 88
Wash. 210, 152 P. 989.
EARTH. Soil of all kinds, including gravel, clay,
loam, and the like, in distinction from the firm
rock. Dickinson v. Poughkeepsie, 75 N.Y. 76;
Davis v. Commissioners of Sewerage of City of
Louisville, D.C.Ky., 13 F.Supp. 672, 680.
EASE. Comfort, consolation, contentment, enjoyment, happiness, pleasure, satisfaction. National Surety Co. v. Jarrett, 95 W.Va. 420, 121 S.E.
291, 295.
EASEMENT. A right in the owner of one parcel of land, by reason of such ownership, to use
the land of another for a special purpose not inconsistent with a general property in the owner.
Hollomon v. Board of Education of Stewart County, 168 Ga. 359, 147 S.E. 882, 884; Frye v. Sebbitt, 145 Neb. 600, 17 N.W.2d 617, 621.
A privilege which the owner of one adjacent
tenement hath of another, existing in respect of
their several tenements, by which that owner
against whose tenement the privilege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in
whose land the privilege exists. Termes de la
Ley, Easements.
Appurtenant Easement
An "incorporeal right" which is attached to and
belongs with some greater and superior right or
something annexed to another thing more worthy
and which passes as incident to it and is incapable of existence separate and apart from the particular land to which it is annexed. Union Falls
Power Co. v. Marinette County, 238 Wis. 134, 298
N.W. 598, 600, 601, 134 A.L.R. 958. One which is
attached to and passes with the dominant tenement as an appurtenance thereof. Cadwalader v.
Bailey, 17 R.I. 495, 23 A. 20, 14 L.R.A. 300; Waller v. Hildebrecht, 295 Ill. 116, 128 N.E. 807, 809.
Safety Building & Loan v. Lyles, 131 S.C. 540, 128
S.E. 724, 725.
Continuing Easement
One that is self-perpetuating, independent of
human intervention, as, the flow of a stream, or
one which may be enjoyed without any act on the
part of the person entitled thereto, such as a spout
which discharges the water whenever it rains, a
599
EASEMENT
drain by which surface water is carried off, windows which admit light and air, and the like.
Starrett v. Baudler, 181 Iowa, 965, 165 N.W. 216,
219, L.R.A.1918B, 528. Also, it is sometimes
termed an "apparent" easement, and defined as
one depending on some artificial structure upon,
or natural conformation of, the servient tenement, obvious and permanent, which constitutes.
the easement or is the means of enjoying it. Fetters v. Humphreys, 18 N.J.Eq. 260; Larsen v. Peterson, 53 N.J.Eq. 88, 30 A. 1094. See, also, Apparent Easement.
Discontinuing Easement
Discontinuous, non-continuous, or non-apparent
easements are those the enjoyment of which can
be had only by the interference of man, as, a right
of way or a right to draw water. Outerbridge v.
Phelps, 45 N.Y.Super.Ct. 570.
a part thereof, he grants by implication to the
grantee all those apparent and visible easements
which are necessary for the reasonable use of the
property granted, which at the time of the grant
are used by the owner of the entirety for the benefit of the part granted. Farley v. Howard, 68 N.
Y.S. 159, 33 Misc. 57.
Intermittent Easement
One which is usable or used only at times, and
not continuously. Eaton v. Railroad Co., 51 N.H.
504, 12 Am.Rep. 147.
Negative Easement
Easement by Prescription
A mode of acquiring title to property by Immemorial or long-continued enjoyment, and refers to personal usage restricted to claimant and
his ancestors or grantors. J. C. Vereen & Sons,
Inc. v. Houser, 123 Fla. 641, 167 So. 45.
Easement in Gross
Easement in gross is not appurtenant to any
estate in land (or not belonging to any person by
virtue of his ownership of an estate in land) but a
mere personal interest in, or right to use, the land
of another. Weigold v. Bates, 258 N.Y.S. 695, 144
Misc. 395; Joachim v. Belfus, 108 N.J.Eq. 622, 156
A. 121, 122.
Easement of Access
Rie,t of ingress and egress to and from the
premises of a lot owner to a street appurtenant to
the land of the lot owner. Lang v. Smith, 113 Pa.
Super. 559, 173 A. 682, 683.
Easement of Convenience
One which increases the facility, comfort, or
convenience of the enjoyment of the dominant estate, or of some right connected with it.
Easement of Necessity
One in which the easement is indispensable to
the enjoyment of the dominant estate. Richards
v. Trezvant, 185 S.C. 489, 194 S.E. 326, 329.
Equitable Easements
The special easements created by derivation of
ownership of adjacent proprietors from a common source, with specific intentions as to buildings for certain purposes, or with implied privileges in regard to certain uses, are sometimes so
called. A name frequently applied to building restrictions in a deed. Werner v. Graham, 181 Cal.
174, 183 P. 945, 947.
Implied Easement
An easement resting upon the principle that,
where the owner of two or more adjacent lots sells
Those where the owner of the servient estate is
prohibited from doing something otherwise lawful upon his estate, because it will affect the dominant estate, (as interrupting the light and air
from the latter by building on the former.) South
Buffalo Stores v. W. T. Grant Co., 274 N.Y.S. 549,
153 Misc. 76; Pierce v. Keator, 70 N.Y. 447, 26 Am.
Rep. 612; Miller v. Babb, Tex.Com.App., 263 S.W.
253, 254. As to "reciprocal negative easement,"
see that title, infra.
Private or Public Easements
A private easement is one in which the enjoy.
ment is restricted to one or a few individuals,
while a public easement is one the right to the
enjoyment of which is vested in the public generally or in an entire community; such as an easement of passage on the public streets and highways or of navigation on a stream. Kennelly v.
Jersey City, 57 N.J.Law, 293, 30 A. 531, 26 L.R.A.
281.
Quasi Easement
An "easement," in the proper sense of the word,
can only exist in respect of two adjoining pieces
of land occupied by different persons, and can
only impose a negative duty on the owner of the
servient tenement. Hence an obligation on the
owner of land to repair the fence between his and
his neighbor's land is not a true easement, but is
sometimes called a "quasi easement." Gale,
Easem. 516; Sweet.
Reciprocal Negative Easement
If the owner of two or more lots, so situated
as to bear the relation, sells one with restrictions
of benefit to the land retained, the servitude becomes mutual, and, during the period of restraint,
the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold; this
being known as the doctrine of "reciprocal negative easement." Sanborn v. McLean, 233 Mich.
227, 206 N.W. 496, 497.
Secondary Easement
One which is appurtenant to the primary or actual easement; every easement includes such "secondary easements," that is, the right to do such
things as are necessary for the full enjoyment of
the easement itself. Toothe v. Bryce, 50 N.J.Eq.
589, 25 A. 182.
600
EBDOMADARIUS
EAST. In the absence of other words qualifying
its meaning, the word "east" describing boundaries
means due east. Anaheim Sugar Co. v. Orange
County, 181 Cal. 212, 183 P. 809, 813; Livingston
Oil & Gas Co. v. Shasta Oil Co., Tex.Civ.App., 114
S.W.2d 378, 381. See, also, Easterly.
In the customs laws of the United States, the
words "countries east of the Cape of Good Hope"
mean countries with which, formerly, the United States ordinarily carried on commercial intercourse by passing around that cape. Powers v.
Conley, 101 U.S. 790, 25 L.Ed. 805.
mean. Walker v. City of Los Angeles, 23 Cal.App.
634, 139 R 89, 90. See East.
EASTINUS. An easterly coast or country.
EASTMAN FORMULA. In determining fixed
charges under railroad reorganization plan, the
"Eastman Formula" is that such charges should
not exceed 80 per cent. of the net available for
interest in the three worst years of the last ten.
In re Denver & R. G. W. R. Co., D.C.Colo., 38 F.
Supp. 106, 110.
EAST GREENWICH. The name of a royal manor in the county of Kent, England; mentioned in
royal grants or patents, as descriptive of the tenure of free socage.
EAST INDIA COMPANY. Originally established
for prosecuting the trade between England and
India, which they acquired a right to carry on exclusively. Since the middle of the last century,
however, the company's political affairs had become of more importance than their commerce.
In 1858, by 21 & 22 Vict. c. 106, the government of
the territories of the company was transferred to
the crown. Wharton.
EASTER. A feast of the Christian church held in
memory of the Saviour's resurrection. The
Greeks and Latins call it "pascha," (passover,)
to which Jewish feast our Easter answers. This
feast has been annually celebrated since the time
of the apostles, and is one of the most important
festivals in the Christian calendar, being that
which regulates and determines the times of all
the other movable feasts. Enc. Lond.
EASTER-OFFERINGS, or EASTER-DUES.
English law. Small sums of money paid to the
parochial clergy by the parishioners at Easter as
a compensation for personal tithes, or the tithe
for personal labor; recoverable under 7 & 8 Wm.
III. c. 6, before justices of the peace.
EASTER TERM. In English law. Formerly One
of the four movable terms of the courts, but afterwards a fixed term, beginning on the 15th of
April and ending on the 8th of May in every year,
though sometimes prolonged so late as the 13th
of May, under St. 11 Geo. IV. and 1 Wm. IV. c. 70.
From November 2, 1875, the division of the legal
year into terms is abolished so far as concerns
the administration of justice. 3 Steph.Comm.
482-486; Mozley & Whiteley.
EASTERLING. A coin struck by Richard II.
which is supposed by some to have given rise to
the name of "sterling," as applied to English money.
EASTERLY. This word, when used alone, will
be construed to mean "due east." But that is a
rule of necessity growing out of the indefiniteness of the term, and has no application where
other words are used for the purpose of qualifying its meaning. Where such is the case, it means
precisely what the qualifying word makes it
EAT INDE SINE DIE. In criminal practice.
Words used on the acquittal of a defendant, or
when a prisoner is to be discharged, that he may
go thence without a day, i. e., be dismissed without any further continuance or adjournment.
Dane, Abr. Index.
EATING-HOUSE. Any place where food or refreshments of any kind, not including spirits,
wines, ale, beer, or other malt liquors, are provided for casual visitors, and . sold for consumption therein. Act Cong. July 13, 1866, § 9 (14 St.
at Large, 118). And see Carpenter v. Taylor, 1
Hilt. (N.Y.) 195; State v. Hall, 73 N.C. 253. A
place where the public may go and be served
with meals. Babb v. Elsinger, Sup., 147 N.Y.S.
98, 99.
EAVES. The edge of a roof, built so as to project over the walls of a house, in order that the
rain may drop therefrom to the ground instead
of running down the wall. Center St. Church v.
Machias Hotel Co., 51 Me. 413.
EAVES-DRIP. The drip or dropping of water
from the eaves of a house on the land of an adjacent owner; the easement of having the water
so drip, or the servitude of submitting to such
drip; the same as the stillicidium of the Roman
law. See Stillicidium.
EAVESDROPPING. In English criminal law.
The offense of listening under walls or windows,
or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and
mischievous tales. 4 Bl.Comm. 168. It is a misdemeanor at common law, indictable at sessions,
and punishable by fine and finding sureties for
good behavior. Id.; Steph.Crim.Law, 109. Selden v. State, 74 Wis. 271, 42 N.W. 218, 17 Am.St.
Rep. 144.
EBB AND FLOW. An expression used formerly
in this country to denote the limits of admiralty
jurisdiction. See United States v. Aborn, 3 Mason, 127, Fed.Cas.No.14,418.
EBBA. In old English law. Ebb. Ebba et fluctus; ebb and flow of tide; ebb and flood. Bract.
fols. 255, 338. The time occupied by one ebb and
flood was anciently granted to persons essoined as
being beyond sea, in addition to the period of
forty days. See Fleta, lib. 6, c. 8, § 2.
EBDOMADARIUS. In ecclesiastical law. An officer in cathedral churches who supervised the
601
EBEREMORTH
regular performance of divine service, and prescribed the particular duties of each person in the
choir.
EBEREMORTH, EBEREMORS, EBEREMURDER. See Aberemurder.
EBRIETY. In criminal law and medical jurisprudence. Drunkenness; alcoholic intoxication.
Com. v. Whitney, 11 Cush. (Mass.) 479.
ECCE MODO MIRUM, QUOD F(EMINA FERT
BREVE REGIS, NON NOMINANDO VIRUM,
CONJUNCTUM ROBORE LEGIS. Co.Litt. 132b.
Behold, indeed, a wonder! that a woman has the
king's writ without naming her husband, who by
law is united to her.
ECCENTRICITY. In criminal law and medical
jurisprudence. Personal or individual perculiarities of mind and disposition which markedly distinguish the subject from the ordinary, normal, or
average types of men, but do not amount to mental unsoundness or insanity. Ekin v. McCracken, 11 Phila. (Pa.) 535.
ECCHYMOSIS. In medical jurisprudence. Localized discoloration in and under the skin; a
livid or black and blue spot; blackness. An extravasation of blood by rupture of capillary vessels, and hence it follows contusion; but it may
exist, as in cases of scurvy, asphyxiation, and other morbid conditions, without the latter. Ryan
Med.Jur. 172. Ecchymoses produced by blows upon a body but a few hours dead cannot be distinguished from those produced during life. 1
Witth. & Beck.Med.Jur. 485; 2 Beck, Med.Jur. 22.
It is generally attended by swelling. People v.
Mummert, 50 N.Y.S.2d 699, 703, 183 Misc. 243.
ECCLESIA. Lat. An assembly. A Christian assembly; a church. A place of religious worship.
In the law, generally, the word is used to denote
a place of religious worship, and sometimes a parsonage. Spelman.
ECCLESIA ECCLESLE DECIMAS SOLVERE
NON DEBET. Cro.Eliz. 479. A church ought not
to pay tithes to a church.
ECCLESIA EST DOMUS MANSIONALIS OMNIPOTENTIS DEL 2 Inst. 164. The church is the
mansionhouse of the Omnipotent God.
ECCLESIA EST INFRA ZETATEM ET IN CUSTODIA DOMINI REGIS, QUI TENETUR JURA
ET ILEREDITATES EJUSDEM MANU TENERE
ET DEFENDERE. 11 Coke, 49. The church is
under age, and in the custody of the king, who is
bound to uphold and defend its rights and inheritances.
ECCLESIA FUNGITUR VICE MINORIS; MELIOREM CONDITIONEM SUAM FACERE P0TEST, DETERIOREM NEQUAQUAM. Co.Litt.
341. The church enjoys the privilege of a minor;
it can make its own condition better, but not
worse.
ECCLESIA NON MORITUR. 2 Inst. 3. The
church does not die.
ECCLESLE MAGIS FAVENDUM EST QUAM
PERSON,E. Godol. Ecc. Law, 172. The church
is to be more favored than the parson (or an individual).
ECCLESLE SCULPTURA. The image or sculpture of a church in ancient times was often cut
out or cast in plate or other metal, and preserved as a religious treasure or relic, and to perpetuate the memory of some famous churches. Jacob.
ECCLESIARCH. The ruler of a church.
ECCLESIASTIC. A clergyman; a priest; a man
consecrated to the service of the church; as, a
bishop, a priest, a deacon.
ECCLESIASTICAL. Pertaining to anything belonging to or set apart for the church, as distinguished from "civil" or "secular," with regard to
the world. Wharton.
ECCLESIASTICAL AUTHORITIES. In England,
the clergy, under the sovereign, as temporal head
of the church, set apart from the rest of the people or laity, in order to superintend the public
worship of God and the other ceremonies of religion, and to administer spiritual counsel and instruction. The several orders of the clergy are:
(1) Archbishops and bishops; (2) deans and
chapters; (3) archdeacons; (4) rural deans; (5)
parsons (under whom are included appropriators)
and vicars; (6) curates. Church-wardens or
sidesmen, and parish clerks and sextons, inasmuch as their duties are connected with the
church, may be considered to be a species of ecclesiastical authorities. Wharton.
ECCLESIASTICAL COMMISSIONERS. In English law. A body corporate, erected by St. 6 &
7 Wm. IV, c. 77, empowered to suggest measures
conducive to the efficiency of the established
church, to be ratified by orders in council. Wharton. See 3 Steph.Comm. 156, 157.
ECCLESIASTICAL CORPORATION. See Corporation.
ECCLESIASTICAL COUNCIL. In New England.
A church court or tribunal, having functions
partly judicial and partly advisory, appointed to
determine questions relating to church discipline,
orthodoxy, standing of ministers, controversies.
between ministers and their churches, differences
and divisions in churches, and the like. Stearns
_ v. First Parish, 21 Pick., Mass., 124; Sheldon v.
Congregational Parish, 24 Pick., Mass., 281.
ECCLESIASTICAL COURTS (called, also, "Courts
Christian"). A generic name for certain courts
having cognizance mainly of spiritual matters. D.
v. D., Del.Super., 20 A.2d 139, 140. A system of
courts in England, held by authority of the sovereign, and having jurisdiction over matters pertaining to the religion and ritual of the established
church, and the rights, duties, and discipline of
ecclesiastical persons as such. They are as follows: The archdeacon's court, arches court, consistory court, court of archdeacon, court of pe-
602
EDICTAL
ECLECTIC PRACTICE. In medicine. That system followed by physicians who select their modes
of practice and medicines from various schools.
Webster.
culiars, prerogative court, court of delegates, court
of convocation, court of audience, and court of
faculties. 3 Bl.Comm. 64-68. Equitable Life Assur. Soc. v. Paterson, 41 Ga. 364, 5 Am.Rep. 535.
"Without professing to understand much of medical
phraseology, we suppose that the terms 'allopathic practice' and 'legitimate business' mean the ordinary method
commonly adopted by the great body of learned and eminent physicians, which is taught in their institutions, established by their highest authorities, and accepted by the
larger and more respectable portion of the community. By
'eclectic practice,' without imputing to it, as the counsel
for the plaintiff seem inclined to, an odor of illegality,
we presume is intended another and different system,
unusual and eccentric, not countenanced by the classes
before referred to, but characterized by them as spurious
and denounced as dangerous. It is sufficient to say that the
two modes of treating human maladies are essentially distinct, and based upon different views of the nat*re and
causes of diseases, their appropriate remedies, and the
modes of applying them." Bradbury v. Bardin, 34 Conn.
453.
ECCLESIASTICAL DIVISION OF ENGLAND.
This is a division into provinces, dioceses, archdeaconries, rural deaneries, and parishes.
ECCLESIASTICAL JURISDICTION. Jurisdiction
over ecclesiastical cases and controversies; such
as appertains to the ecclesiastical courts. Short
v. Stotts, 58 Ind. 35.
ECCLESIASTICAL LAW. The body of jurisprudence administered by the ecclesiastical courts of
England; derived, in large measure, from the canon and civil law. As now restricted, it applies
mainly to the affairs, and the doctrine, discipline,
and worship, of the established church. De Witt
v. De Witt, 67 Ohio St. 340, 66 N.E. 136.
ECONOMIZER. As applied to boiler construction, a contrivance or device in which water is
heated preliminary to entering the boiler proper.
Ithaca Traction Corporation v. Travelers' Indemnity Co., Sup., 177 N.Y.S. 753, 754.
ECCLESIASTICAL MATTER. One that concerns
doctrine, creed, or form of worship of the church,
or the adoption and enforcement within a religious
association of needful laws and regulations for the
government of the membership, and the power of
excluding from such associations those deemed unworthy of membership. Olear v. Haniak, 235 Mo.
App. 249, 131 S.W.2d 375, 380.
ECONOMY. Frugality; prudent economy. Not
synonymous with "parsimony." Includes that
which pertains to the satisfaction of man's needs.
D'Arcy v. Snell, 162 Or. 351, 91 P.2d 537, 540, 122
A.L.R. 928.
ECCLESIASTICAL THINGS. This term, as used
in the canon law, includes church buildings,
church property, cemeteries, and property given
to the church for the support of the poor or for
any other pious use. Smith v. Bonhoof, 2 Mich.
115.
ECUMENICAL. General; universal; as an ecumenical council. Groesbeeck v. Dunscomb, 41
How.Prac. (N.Y.) 344.
ECDICUS. The attorney, proctor, or advocate of
a corporation. 1 Reeve, Eng.Law, 65.
EDDERBRECHE. In Saxon law. The offense of
hedge-breaking. Obsolete.
ECHANTILLON. In French law. One of the two
parts or pieces of a wooden tally. That in posses.
sion of the debtor is properly called the "tally,"
the other "echantillon." Poth.Obl. pt. 4, c. 1, art.
2, § 8.
EDESTIA. In old records. Buildings.
ECRIVAIN. In French marine law. The clerk of
a ship. Emerig.Tr. des Ass. c. 11, s. 3, no. 2.
EDGE. A line where two surfaces meet. I. T. S.
Rubber Co. v. Essex Rubber Co., D.C., 270 F. 593,
605.
EDGE LEASE. One located on the edge of an oil
bearing structure. Carter Oil Co. v. Mitchell, C.
C.A.Okl., 100 F.2d 945, 947.
ECHEVIN. In French law. A municipal officer
corresponding with alderman or burgess, and having in some instances a civil jurisdiction in certain causes of trifling importance.
ECHOLALIA. In medical jurisprudence. The
constant and senseless repetition of particular
words or phrases, recognized as a sign or symptom
of insanity or of aphasia.
ECHOUEMENT. In French marine law. Stranding. Emerig.Tr. des Ass. c. 12, s. 13, no. 1.
ECLAMPSIA PARTURIENTIUM. In medical jurisprudence. Puerperal convulsions; a convulsive
seizure which sometimes suddenly attacks a woman in labor or directly after, generally attended
by unconsciousness and occasionally by mental
aberration, which may be permanent. The attack
closely resembles the convulsions of epilepsy, and
is often fatal.
EDICT. A positive law promulgated by the sovereign of a country, and having reference either
to the whole land or some of its divisions, but
usually relating to affairs of state. It differs
from a "public proclamation," in that it enacts a
new statute, and carries with it the authority of
law, whereas the latter is, at most, a declaration
of a law before enacted. In Roman law. Sometimes, a citation to appear before a judge. A
"special edict" was a judgment in a case; a "general edict" was in effect a statute. See Edictum.
EDICTAL CITATION. In Scotch law. A citation
published at the market-cross of Edinburgh, and
pier and shore of Leith. Used against foreigners not within the kingdom, but having a landed
estate there, and against natives out of the kingdom. Bell.
603
EDICTS
EDICTS OF JUSTINIAN. Thirteen constitutions
or laws of this prince, found in most editions of
the Corpus Juris Civilis, after the Novels. Being
confined to matters of police in the provinces of
the empire, they are of little use.
EDICTUM. In the Roman law. An edict; a mandate, or ordinance. An ordinance, or law, enacted
by the emperor without the senate; belonging to
the class of constitutiones principis. Inst. 1, 2, 6.
An edict was a mere voluntary constitution of the
emperor; differing from a rescript, in not being
returned in the way of answer; and from a decree, in not being given in judgment; and from
both, in not being founded upon solicitation. Tayl.
Civil Law, 233.
A general order published by the praetor, on entering upon his office, containing the system of
rules by which he would administer justice during
the year of his office. Dig. 1, 2, 2, 10; Mackeld.
Rom.Law, § 35; Tayl.Civil Law, 214. See Calvin.
EDICTUM ANNUUM. The annual edict or system
of rules promulgated by a Roman praetor immediately upon assuming his office, setting forth the
principles by which he would be guided in determining causes during his term of office. Mackeld.
Rom.Law, § 36.
EDICTUM PERPETUUM. The perpetual edict.
A compilation or system of law in fifty books, digested by Julian, from the praetor's edicts and other parts of the Jus Honorarium. All the remains
of it which have come down to us are the extracts
of it in the Digests. Butl.Hor.Jur. 52.
EDICTUM PROVINCIALE. An edict or system of
rules for the administration of justice, similar to
the edict of the praetor, put forth by the proconsuls and proprEetors in the provinces of the Roman
Empire. Mackeld.Rom.Law, § 36.
EDICTUM THEODORICI. This is the first collection of law that was made after the downfall
of the Roman power in Italy. It was promulgated
by Theodoric, king of the Ostrogoths, at Rome in
A.D. 500. It consists of 154 chapters, in which we
recognize parts taken from the Code and Novellw
of Theodosius, from the Codices Gregorianus and
Hermogenianus, and the Sentential of Paulus. The
edict was doubtless drawn up by Roman writers,
but the original sources are more disfigured and
altered than in any other compilation. This collection of law was intended to apply both to the
Goths and the Romans, so far as its provisions
went; but, when it made no alteration in the Gothic law, that law was still to be in force. Savigny,
Geschichte des R. R.
EDICTUM TRALATITIUM. Where a Roman prwtor, upon assuming office, did not publish a wholly
new edict, but retained the whole or a principal
part of the edict of his predecessor ( as was usually
the case) only adding to it such rules as appeared
to be necessary to adapt it to changing social
conditions or juristic ideas, it was called "edictum
tralatitium." Mackeld.Rom.Law, § 36.
EDITION. Any quantity of books put forth to the
bookselling trade at one time by the publisher. 4
K. & J. 656. A new edition is published whenever,
having in his warehouse a certain number of
copies, the publisher issues a fresh batch of them
to the public.
EDITOR. One who directs or supervises the policies and contributions of a newspaper, magazine,
work of reference, or the like. Brokaw v. Cottrell,
211 N.W. 184, 187, 114 Neb. 858. The term is held
to include not only the person who writes or selects the articles for publication, but he who publishes a paper and puts it in circulation. Pennoyer v. Neff, 95 U.S. 721, 24 L.Ed. 565.
EDITUS. In old English law. Put forth or promulgated, when speaking of the passage of a statute; and brought forth, or born, when speaking of
the birth of a child.
EDMUNDS ACT. An act of congress of March 22,
1882, punishing polygamy. See 22 Stat. 31.
EDUCATE. To give proper moral, as well as intellectual and physical, instruction. See Williams
v. MacDougall, 39 Cal. 80; Peck v. Claflin, 105
Mass. 420. To prepare and fit oneself for any
calling or business, or for activity and usefulness
in life. In re Wolfe's Estate, 299 N.Y.S. 99, 102, 164
Misc. 504.
EDUCATION. Comprehends not merely the instruction received at school or college, but the
whole course of training, moral, intellectual, and
physical. Education may be particularly directed
to either the mental, moral, or physical powers and
faculties, but in its broadest and best sense it relates to them all. Barbers' Commission of Mobile
County v. Hardeman, 21 So.2d 118, 120, 31 Ala.App.
626. Acquisition of all knowledge tending to train
and develop the individual. Mifchell v. Reeves,
123 Conn. 549, 196 A. 785, 788, 15 A.L.R. 1114.
"Education" is not confined to the improvement and
cultivation of the mind, but may consist of the cultivation
of one's religious or moral sentiments, and likewise may
consist in the development of one's physical faculties.
Commissioners of District of Columbia v. Shannon & Luchs
Const. Co., 57 App.D.C. 67, 17 F.2d 219, 220; Jones v.
Better Business Bureau of Oklahoma City, C.C.A.Okla., 123
F.2d 767, 769.
EDUCATIONAL INSTITUTION. A school, seminary, college, or educational establishment, not
necessarily a chartered institution. Ward Seminary for Young Ladies v. City of Nashville, 129
Tenn. 412, 167 S.W. 113. As used in a zoning ordinance, the term may include not only buildings,
but also all grounds necessary for the accomplishment of the full scope of educational instruction,
including those things essential to mental, moral,
and physical development. Commissioners of District of Columbia v. Shannon & Luchs Const. Co.,
57 App.D.C. 67, 17 F.2d 219, 220.
EDUCATIONAL PURPOSES. Synonymous with
an educational undertaking, and whatever educates
is within the meaning of an "educational undertaking." Ancient and Accepted Scottish Rite of
Freemasonry v. Board of County Com'rs, 122 Neb.
586, 241 N.W. 93, 95.
604
EFFICIENT
EDUCATIONAL TRAINING. Acquisition of information or inspirational suggestions which cause
the individual to think and act along proper lines.
Jones v. Better Business Bureau of Oklahoma
City, C.C.A.Okl., 123 F.2d 767, 769.
EFF ECT, v. To do; to produce; to make; to
bring to pass; to execute; enforce; accomplish.
Vailsburg Motor Corporation v. Fidelity & Casualty Co., 110 N.J.L. 209, 164 A. 408, 409. A belief that a mortgage would "effect" a preference
under the bankruptcy act is equivalent to a belief
that it would "operate as" a preference. Ogden
v. Reddish, D.C.Ky., 200 F. 977, 979.
EFFECT, n. Result. Western Indemnity Co. v.
MacKechnie, Tex.Civ.App., 214 S.W. 456, 460; Beeler v. People, 58 Colo. 451, 146 P. 762, 764. The result which an instrument between parties will
produce in their relative rights, or which a statute will produce upon the existing law, as discovered from the language used, the forms employed, or other materials for construing it. The
operation of a law, of an agreement, or an act.
Maize v. State, 4 Ind. 342.
The phrases "take effect," "be in force," "go into operation," etc., are used interchangeably. Maize v. State, 4
Ind. 342.
With Effect
With success; as, to prosecute an action with
effect. Schutze v. Dabney, Tex.Civ.App., 204 S.W.
342, 347.
EFF ECTING LOAN. Renewal of original note
without lending of new money held not "effecting
of loan," within . statute prohibiting officers or
employees of banking department from effecting
loans from state bank. To effect a loan within
such statute means to bring about a loan, to accomplish, fulfill, or produce or make a loan. It
means the result or consequence, the bringing into
operation of a loan; while "renewal" is not a loan,
but an extension of the time of payment. State v.
Love, 150 So. 196, 199, 170 Miss. 666, 90 A.L.R. 506.
EFFECTIVE PROCURING CAUSE. The "effective procuring cause," of sale of realty is ordinarily the broker who first secures the serious attention of the customer and is instrumental in
bringing the parties together. In re Cowan's Estate, 13 N.Y.S.2d 374, 377.
EFFECTS. Personal estate or property. See
Johnson v. Olson, 92 Kan. 819, 142 P. 256, 258, L.R.
A.1915E, 327. Movable or chattel property of any
kind. Ettlinger v. Importers' & Exporters' Ins. Co.
of New York, 247 N.Y.S. 260, 262, 138 Misc. 743.
In this sense, the term is more comprehensive than the
word "goods," as including fixtures and choses in action,
which "goods" will not include. Bank v. Byram, 131 Ill.
92, 22 N.E. 842.
Also, every kind of property, real and personal.
Child v. Orton, 119 N.J.Eq. 438, 183 A. 709, 710;
Adams v. Akerlund, 48 N.E. 454, 168 Ill. 632; Castle v. Castle, C.C.A.Hawaii, 267 F. 521, 523; Erickson v. Carlson, 145 N.W. 352, 95 Neb. 182; Peterson's Estate, 151 N.W. 66, 68, 168 Iowa 511, L.R.A.
1916A, 469.
In Wlll
Personal property; goods; worldly substance.
If the term is used simpliciter, as in a gift of "all
my effects," it will carry the whole personal estate, unless an intention appears to the contrary.
Schouler, Wills, § 509. In re Mitchell's Will, 38
N.Y.S.2d 673, 674, 675. The meaning of the term is
determined by the context and surrounding circumstances; Coffman's Adm'r v. Coffman, 131 Va.
456, 109 S.E. 454, 459; and is broad enough to include property of any kind. In re Lafferty's Estate, 311 Pa. 469, 167 A. 49, 50.
The words "real and personal effects" will embrace the whole estate. Hogan v. Jackson, Cowp.
304; The Alpena, D.C., 7 F. 361; 15 M. & W. 450;
Foxall v. McKenney, 3 Cranch C.C. 206, Fed.Cas.
No.5,016.
EFFECTUS SEQUITUR CAUSAM. Wing. 226.
The effect follows the cause.
EFFENDI. Turkish. Master; a title of respect.
EFFET. In France an "effet" is a bill of exchange; "effets" means goods, movables, chattels.
In re Steimes' Estate, 270 N.Y.S. 339, 150 Misc.
279.
EFFETS MOBILIERS. Funds or stocks. In re
Steimes' Estate, 270 N.Y.S. 339, 150 Misc. 279.
EFFICIENT. Causing an effect ;—particularly the
result or results contemplated. Tate-Jones & Co.
v. Union Electric Steel Co., 281 Pa. 448, 126 A. 813,
816. The term is not an antonym of "defective."
Adequate in performance or producing properly
a desired effect. Spotts v. Baltimore & 0. R. Co.,
C.C.A.Ind., 102 F.2d 160, 162.
EFFICIENT CAUSE. The working cause; that
cause which produces effects or results; an intervening cause, which produces results which would
not have come to pass except for its interposition,
and for which, therefore, the person who set in
motion the original chain of causes is not responsible. Southland-Greyhound Lines v. Cotten, Tex.
Civ.App., 55 S.W.2d 1066, 1069; The cause which
originates and sets in motion the dominating
agency that necessarily proceeds through other
causes as mere instruments or vehicles in a natural line of causation to the result. That cause
of an injury to which legal liability attaches.
Bole v. Pittsburgh Athletic Club, C.C.A., 205 F. 468,
471, 46 L.R.A.,N.S., 602. The "proximate cause."
Munger v. Hancock, Tex.Civ.App., 271 S.W. 228,
231. Hilles v. Home Owners' Loan Corporation,
348 Mo. 601, 154 S.W.2d 761, 764. The phrase is
practically synonymous with "procuring cause."
Buhrmester v. Independent Plumbing & Heating
Supply Co., Mo.App., 151 S.W.2d 509, 513.
EFFICIENT INTERVENING CAUSE. One not
produced by a wrongful act or omission but independent of it, and adequate to bring the injurious
results. State v. Des Champs, 126 S.C. 416, 120 S.
E. 491, 493. A new and independent force which
breaks casual connection between original wrong
605
EFFIGY
EGYPTIANS, commonly called "Gypsies" (in old
English statutes,) are counterfeit rogues, Welsh
or English, that disguise themselves in speech
and apparel, and wander up and down the country, pretending to have skill in telling fortunes,
and to deceive the common people, but live chiefly by filching or stealing, and, therefore, the statutes of 1 & 2 Mar. c. 4, and 5 Eliz. c. 20, were made
to punish such as felons if they departed not the
realm or continued to a month. Termes de la Ley.
and injury. Anderson v. Byrd, 133 Neb. 483, OS
N.W. 825, 826; Bennett v. Robertson, 107 Vt. 202,
177 A. 625, 628, 98 A.L.R. 152.
EFFIGY. The figure or corporeal representation
of a person.
EFFLUX. The running, as of a prescribed period
of time to its end; expiration by lapse of time.
Particularly applied to the termination of a lease
by the expiration of the term for which it was
made.
EFFLUXION OF TIME. When this phrase is used
in leases, conveyances, and other like deeds, or
in agreements expressed in simple writing, it indicates the conclusion or expiration of an agreed
term of years specified in the deed or writing, such
conclusion or expiration arising in the natural
course of events, in contradistinction to the determination of the term by the acts of the parties
or by some unexpected or unusual incident or
other sudden event. Brown.
EFFORCIALITER. Forcibly; applied to military
force.
EFFORT. An attempt; an endeavor; a struggle
directed to the accomplishment of an object. Dulaney v. Burns, 218 Ala. 493, 119 So. 21, 24.
EFFRACTION. A breach made by the use of
force.
EFFRACTOR. One who breaks through; one
who commits a burglary.
EI INCUMBIT PROBATIO, QUI DICIT, NON QUI
NEGAT; CUM PER RERUM NATURAM FACTUM NEGANTIS PROBATIO NULLA SIT. The
proof lies upon him who affirms, not upon him
who denies; since, by the nature of things, he who
denies a fact cannot produce any proof. Dig. 22,
3, 2; 1 Phill. Ev. 194; 1 Greenl. Ev. § 74; Dranguet v. Prudhomme, 3 La. 83; 2 Dan.Ch.Pr. 408.
EI NIHIL TURPE, CUI NIHIL SATIS. To him
to whom nothing is enough, nothing is base. 4
Inst. 53.
EIA, or EY. An island. Cowell.
EIGNE. L. Fr. Eldest; eldest-born. The term
is of common occurrence in the old books. Thus,
bastard eigne means an illegitimate son whose
parents afterwards marry and have a second son
for lawful issue, the latter being called mulier
puisne, (after-born.) Eigne is probably a corrupt
form of the French "cline." 2 Bl.Comm. 248; Litt.
§ 399.
EIGNESSE. See Esnecy.
EFFUSIO SANGUINIS. In old English law. The
shedding of blood; the mulct, fine, wite, or penalty imposed for the shedding of blood, which the
king granted to many lords of manors. Cowell;
'Tomlins. See Bloodwit.
EINECIA. Eldership. See Esnecy.
EFTERS. In Saxon law. Ways, walks, or hedges.
Blount.
EINETIUS. In English law. The oldest; the
first-born. Spelman.
EGALITY. Owelty,
(q. v.)
Co. Litt. 169a.
EGG ALBUMEN. The white of egg. For commercial purposes, dried, uncoagulated egg. International Cork Co. v. New Process Cork Co.,
C.C.A.N.Y., 6 F.2d 420, 421.
EGLISE. A church.
EGO. I; myself. This term is used in forming
genealogical tables, to represent the person who
is the object of inquiry.
EIK. In Scotch law. An addition; as, eik to
reversion, eik to a confirmation. Bell.
a
EIRE, or EYRE. In old English law. A journey,
route, or circuit. Justices in eire were judges who
were sent by commission, every seven years, into
various counties to hold the assizes and hear pleas
of the crown. 3 Bl.Comm. 58.
EIRENARCHA. A name formerly given to a justice of the peace. In the Digests, the word is
written "irenarcha."
EGO, TALIS. I, such a one. Words used in describing the forms of old deeds. Fleta, lib. 3, c.
14, § 5.
EISDEM MODIS DISSOLVITUR OBLIGATIO
QUiE NASCITUR EX CONTRACTU, VEL QUASI, QUIBUS CONTRAHITUR. An obligation
which arises from contract, or quasi contract, is
dissolved in the same ways in which it is contracted. Fleta, lib. 2, c. 60, § 19.
EGREDIENS ET EXEUNS. In old pleading. Going forth and issuing out of (land.) Townsh. Pl.
17.
EISNE. The senior; the oldest son. Spelled, also,
"eigne," "einsne," "aisne," "eign." Termes de la
Ley; Kelham.
EGRESS. Often used interchangeably with the
' word "access." C. Hacker Co. v. City of Joliet,
196 Ill.App. 415, 423.
EISNETIA, EINETIA. The share of the oldest
son. The portion acquired by primogeniture.
Termes de la Ley; Co.Litt. 166b; Cowell.
606
EJIDOS
EITHER. Each of two; the one and the other;
one or the other of two alternatives; one of two.
Dallas Ry. & Terminal Co. v. Allen, Tex., 43 S.W.
2d 165, 170; Alswager v. Dwelle, 70 N.D. 118, 292
N.W. 223, 224, 128 A.L.R. 1150. Often used, however, with reference to more than two, in which
case it may mean "each" or "any." In re Broun's
Estate, 343 Pa. 19, 21 A.2d 898, 901. Carr-Lowry
Lumber Co. v. Martin, 144 Miss. 106, 109 So. 849,
850; Southern Ry. Co. v. Gaston County, 200 N.
C. 780, 158 S.E. 481, 483. Watson v. Watson, 223
Mass. 425, 111 N.E. 904, 906.
EJECT. To cast, or throw out; to • oust, or dispossess; to put or turn out of possession. 3 Bl.
Comm. 198, 199, 200. See Bohannon v. Southern
Ry. Co., 112 Ky. 106, 65 S.W. 169. To expel or
thrust forcibly, as passengers from a train.
Louisville & N. R. Co. v. Ogles, 142 Ga. 720, 83 S.E.
681, 683.
EJECTA. In old English law. A woman ravished or deflowered, or cast forth from the virtuous.
Blount.
EJECTION. A turning out of possession. 3 Bl.
Comm. 199.
EJECTIONE CUSTODI)E. In old English law.
Ejectment of ward. This phrase, which is the
Latin equivalent for the French "ejectment de
garde," was the title of a writ which lay for a
guardian when turned out of any land of his
ward during the minority of the latter. Brown.
It lay to recover the land or person of his ward,
or both. Fitzh. N.B. 139, L.; Co.Litt. 199.
EJECTIONE FIRM1E. Ejection, or ejectment of
farm. The name of a writ or action of trespass,
which lay at common law where lands or tenements were let for a term of years, and afterwards the lessor, reversioner, remainder-man, or
any stranger ejected or ousted the lessee of his
term, ferme, or farm, (ipsum a firma ejecit.) In
this case the latter might have his writ of ejection, by which he recovered at first damages for
the trespass only, but it was afterwards made a
remedy to recover back the term itself, or the remainder of it, with damages. Reg.Orig. 227b;
Fitzh. Nat. Brev. 220, F, G; 3 Bl.Comm. 199; Litt.
§ 322; Crabb, Eng.Law, 290, 448. It is the foundation of the modern action of ejectment.
EJECTMENT. At common law, this was the
name of a mixed action (springing from the earlier
personal action of ejectione firmce) which lay for
the recovery of the possession of land, and for
damages for the unlawful detention of its possession. The action was highly fictitious, being
in theory only for the recovery of a term for
years, and brought by a purely fictitious person, as
lessee in a supposed lease from the real party in
interest. The latter's title, however, must be
established in order to warrant a recovery, and the
establishment of such title, though nominally a
mere incident, is in reality the object of the action. Hence this convenient form of suit came to
be adopted as the usual method of trying titles
to land. See 3 Bl.Comm. 199. French v. Robb, 67
N.J.Law, 260, 51 A. 509, 57 L.R.A. 956, 91 Am.St.
Rep. 433. In England, since the Judicature Act,
ejectment has given place to a new action for
the recovery of land. Ejectment has been materially modified in many of the states, though still
retaining the name. For the history of ejectment,.
see 3 Sel.Essays in Anglo-Amer. L. Hist. 611.
It was the only mixed action at common law, the whole.
method of proceeding in which was anomalous, and
depended on fictions invented and upheld by the court for
the convenience of justice, in order to escape from the
inconveniences which were found to attend the ancient
forms of real and mixed actions.
It is also a form of action by which possessory
titles to corporeal hereditaments may be tried and
possession obtained.
Ejectment Bill
A bill in equity brought merely for the recovery
of real property, together with an account of therents and profits, without setting out any distinct
ground of equity jurisdiction; hence demurrable.
Crane v. Conklin, 1 N.J.Eq. 353, 22 Am.Dec. 519.
Equitable Ejectment
A proceeding in use in Pennsylvania, brought
to enforce specific performance of a contract for
the sale of land, and for some other purposes,.
which is in form an action of ejectment, but is in
reality a substitute for a bill in equity. Riel v..
Gannon, 161 Pa. 289, 29 A. 55.
Justice Ejectment
A statutory proceeding in Vermont, for the evic
tion of a tenant holding over after termination
of the lease or breach of its conditions. Foss v._
Stanton, 76 Vt. 365, 57 A. 942.
EJECTOR. One who ejects, puts out, or dispossesses another.
Casual Ejector
The nominal defendant in an action of ejectment; so called because, by a fiction of law peculiar to that action, he is supposed to come casual
ly or by accident upon the premises and to eject
the lawful possessor. 3 Bl.Comm. 203.
EJECTUM. That which is thrown up by the sea..
Also jetsam, wreck, etc. Warder v. La Belle Creole, 1 Pet.Adm.Dec. 43, Fed.Cas.No.17,165.
EJECTUS. In old English law. A whore-monger. Blount.
EJERCITORIA. In Spanish law. The name of'
an action lying against a ship's owner, upon the
contracts or obligations made by the master forrepairs or supplies. It corresponds to the actio
exercitoria of the Roman law. Mackeld. Rom.
Law, § 512.
EJIDOS. In Spanish law. Commons; lands used in common by the inhabitants of a city, pueblo,.
or town, for pasture, wood, threshing-ground, etc..
Hart v. Burnett, 15 Cal. 554.
607
EJURATION
EJURATION. Renouncing or resigning one's
place.
EJUS EST INTERPRETARI CUJUS EST CONDERE. It is his to interpret whose it is to enact.
Tayl. Civil Law, 96.
EJUS EST NOLLE, QUI POTEST VELLE. He
who can will, [exercise volition,] has a right to
refuse to will, [to withhold consent.] Dig. 50,
7, 3. This maxim is sometimes written, Ejus est
non nolle qui potest velle, and is translated, "He
may consent tacitly who may consent expressly."
EJUS EST PERICULUM CUJUS EST DOMINIUM AUT COPMMODUM. He who has the dominion or advantage has the risk. Bart.Max. 33.
EJUS NULLA CULPA EST, CUI PARERE NECESSE SIT. No guilt attaches to him who is compelled to obey. Dig. 50, 17, 169, pr. Obedience to
existing laws is a sufficient extenuation of guilt
before a civil tribunal. Broom, Max. 12, note.
EJUSDEM GENERIS. Of the same kind, class,
or nature.
In the construction of laws, wills, and other instruments,
the "ejusdem generis rule" is, that where general words
follow an enumeration of persons or things, by words of a
particular and specific meaning, such general words are not
to be construed in their widest extent, but are to be held
as applying only to persons or things of the same general
kind or class as those specifically mentioned. Black, Interp.
of Laws, 141; Goldsmith v. U. S., C.C.A.N.Y., 42 F.2d
133, 137; Aleksich v. Industrial Accident Fund, 116 Mont.
69, 151 P.2d 1016, 1021. The rule, however, does not necessarily require that the general provision be limited in its
scope to the identical things specifically named. Nor does
it apply when the context manifests a contrary intention.
The maxim "ejusdem generis," is only an illustration of
the broader maxim, "noscitur a sod's." State v. Western
Union Telegraph Co., 196 Ala. 570, 72 So. 99, 100.
ELABORARE. In old European law. To gain,
acquire, or purchase, a g by labor and industry.
ELABORATUS. Property which is the acquisition of labor. Spelman.
ELASTIC. Pertaining to a substance having the
property of returning or springing back to its
original form after being disarranged by pressure
or applied force;—to be distinguished from "plastic," which applies to a substance capable of being
molded and pressed into form. Diamond Patent
Co. v. Webster Bros., C.C.A.Cal., 249 F. 155, 157;
Kitson Co. v. Lattimer-Stevens Co., C.C.A.Pa., 37
F.2d 562, 563.
ELDER BRETHREN. A distinguished body of
men, elected as masters of Trinity House, an institution incorporated in the reign of Henry VIII.,
charged with numerous important duties relating
to the marine, such as the superintendence of
lighthouses. Mozley & Whitley; 2 Steph.Comm.
502. The full title of the corporation is Elder
Brethren of the Holy and Undivided Trinity.
ELDER TITLE. A title of earlier date, but coming simultaneously into operation with a title of
younger origin, is called the "elder title," and prevails.
ELDEST. He or she who has the greatest age.
The eldest son is the first-born, the primo-genitus;
L.R. 2 App.Cas. 698; L.R. 12 Ch.Div. 171; Anderson v. Anderson, C.C.A.S.C., 221 F. 871, 874. If
there is only one son, he may still be described as
the "eldest." L.R. 7 H.L. 644.
ELECTA UNA VIA, NON DATUR RECURSUS
AD ALTERAM. He who has chosen one way cannot have recourse to another. 10 Toull. no. 170.
ELECTED. The word "elected," in its ordinary
signification, carries with it the idea of a vote,
generally popular, sometimes more restricted, and
cannot be held the synonym of any other mode of
filling a position. Kimberlin v. State, 130 Ind.
120, 29 N.E. 773, 14 L.R.A. 858, 30 Am.St.Rep. 208.
ELECTIO EST INTERNA LIBERA ET SPONTANEA SEPARATIO UNIUS REI AB ALIA,
SINE COMPULSIONE, CONSISTENS IN ANIMO
ET VOLUNTATE. Dyer, 281. Election is an internal, free, and spontaneous separation of one
thing from another, without compulsion, consisting in intention and will.
ELECTIO SEMEL FACTA, ET PLACITUM TESTATUM NON PATITUR REGRESSUM. Co.Litt.
146. Election once made, and plea witnessed (or
intent shown), suffers not a recall.
ELECTION. The act of choosing or selecting
one or more from a greater number of persons,
things, courses, or rights. The choice of an alternative. State v. Tucker, 54 Ala. 210.
The internal, free, and spontaneous separation of one
thing from another, without compulsion, consisting in
intention and will. Dyer, 281.
The selection of one person from a specified
class to discharge certain duties in a state, corporation, or society. Smith v. McQueen, 232 Ala.
90, 166 So. 788, 791.
With respect to the choice of persons to fill public office
or the decision of a particular public question or public
policy the term means in ordinary usage the expression by
vote of the will of the people or of a somewhat numerous
body of electors. State v. State Board of Canvassers, 78
S.C. 461, 59 S.E. 145. But this is not necessarily so, for the
term may apply to the selection by a city council of one
of their number as mayor.
"Election" ordinarily has reference to a choice or selection by electors, while "appointment" refers to a choice or
selection by an individual, as the Governor, or an official
body. Board of Education of Boyle County v. McChesney,
235 Ky. 692, 32 S.W.2d 26, 27. But the terms are sometimes used interchangeably. Van Cleve v. Wallace, 216
Minn. 500, 13 N.W.2d 467, 469.
A primary election is an "election" within the constitutional provision. United States v. Classic, 61 S.Ct. 1031,
1039, 313 U.S. 299, 85 L.Ed. 1368; Ex parte Hawthorne, 116
Fla. 608, 156 So. 619, 622, 96 A.L.R. 572. But the contrary
view has been expressed, Mathes v. State, 173 Tenn. 511,
121 S.W.2d 548, 549; People ex rel. Lindstrand v. Emmerson, 333 Ill. 606, 165 N.E. 217, 223, 62 A.L.R. 912. Referendum elections are "elections". Masters v. Duval County,
114 Fla. 205, 154 So. 172, 176. To the contrary, Vulcan Last
Co. v. State, 194 Wis. 636, 217 N.W. 412, 414.
The choice which is open to a debtor who is
bound in an alternative obligation to select either
one of the alternatives.
608
Equitable Election
See Equitable Election.
ELECTION
General Election
One at which the officers to be elected are
such as belong to the general government,—that
is, the general and central political organization
of the whole state; as distinguished from an election of officers for a particular locality only. Also, one held for the selection of an officer after
the expiration of the full term of the former officer; thus distinguished from a special election,
which is one held to supply a vacancy in office
occurring before the expiration of the full term
for which the incumbent was elected. Downs v.
State, 78 Md. 128, 26 A. 1005. One that regularly
recurs in each election precinct of the state on
a day designated by law for the selection of officers, or is held in such entire territory pursuant
to an enactment specifying a single day for the
ratification or rejection of one or more measures
submitted to the people by the Legislative Assembly, and not for the election of any officer.
Bethune v. Funk, 166 P. 931, 932, 85 Or. 246. One
that is held throughout the entire state or territory. Territory v. Ricordati, 18 N.M. 10, 132 P.
1139, 1140. An election for the choice of a national, state, judicial, district, municipal, county,
or township official, required by law to be held
regularly at a designated time, to fill a new office or a vacancy in an office at the expiration
of the full term thereof. Eakle v. Board of Education of Independent School Dist. of Henry, 97
W.Va. 434, 125 S.E. 165, 168. In statutes, the term
may include a primary election. Kelso v. Cook,
184 Ind. 173, 110 N.E. 987, 993, Ann.Cas.1918E, 68.
Contra, under a municipal charter, City Council
of San Jose v. Goodwin, 196 Cal. 274, 237 P. 548,
549. In Vermont, the term is used throughout the
Public Statutes to designate what before had commonly been known as "freeman's meeting."
Martin v. Fullam, 97 A. 442, 445, 90 Vt. 163.
In Criminal Law
The choice, by the prosecution, upon which of
several counts in an indictment (charging distinct
offenses of the same degree, but not parts of a
continuous series of acts) it will proceed. Jackson v. State, 95 Ala. 17, 10 So. 657.
In Practice
The liberty of choosing (or the act of choosing)
one out of several means afforded by law for the
redress of an injury, or one out of several available forms of action.
An "election of remedies" arises when one having two
coexistent but inconsistent remedies chooses to exercise
one, in which event he loses the right to thereafter exercise the other. Mosher Mfg. Co. v. Eastland W. F. & G. R.
Co., Tex.Civ.App., 259 S.W. 253, 255.
An "election of remedies" is choosing between two or
more different and coexisting modes of procedure and
relief allowed by law on the same state of facts. Pacific
Mut. Life Ins. Co. of California v. Rhame, D.C.S.C., 32
F.Supp. 59, 63; Doggett Lumber Co. v. Perry, 212 N.C. 713,
194 S.E. 475, 478.
"Election of remedies" is a species of estoppel in pals.
Mansfield v. Pickwick Stages, Northern Division, 191 Cal.
129, 215 P. 389, 390.
Black's Law Dictionary Revised 4th Ed.-39
In the Law of Wills
A widow's election is her choice whether she
will take under the will or under the statute;
that is, whether she will accept the provision
made for her in the will, and acquiesce in her
husband's disposition of his property, or disregard it and claim what the law allows her. Logan
v. Logan, Tex.Civ.App., 112 S.W.2d 515, 518;
Schlimme v. Schlimme, 364 Ill. 303, 4 N.E.2d 369,
370.
An "election under the will" means that a legatee or devisee under a will is put to the choice of
accepting the beneficial interest offered by the
donor in lieu of some estate which he is entitled
to, but which is taken from him by the terms of
the will. McDermid v. Bourhill, 101 Or. 305, 199
P. 610, 612, 22 A.L.R. 428.
Primary Election
An election by the voters of a ward, precinct,
or other small district, belonging to a particular
party, of representatives or delegates to a convention which is to meet and nominate the candidates of their party to stand at an approaching
municipal or general election. State v. Woodruff,
68 N.J.Law, 89, 52 A. 294. Also, an' election to
select candidates for office by a political organization, the voters being restricted to the members
or supporters of such organization. Kelso v.
Cook, 184 Ind. 173, 110 N.E. 987, Ann.Cas.1918E,
68. They are not in reality elections but are
merely nominating devices. Van Dyke v. Thompson, 136 Tenn. 136, 189 S.W. 62, 66.
Regular Election
One recurring at stated times fixed by law.
State v. Andresen, 110 Or. 1, 222 P. 585, 587. A general, usual, or stated election. When applied to
elections, the terms "regular" and "general" are
used interchangeably and synonymously. The
word "regular" is used in reference to a general
election occurring throughout the state. State v.
Conrades, 45 Mo. 47; Ward v. Clark, 35 Kan. 315,
10 P. 827.
Result of Election
Usually, the expression of the will of the voters
as determined by a count of the ballots. Cipowski v. Calumet City, 322 Ill. 575, 153 N.E. 613, 614.
Special Election
An election for a particular emergency; out of
the regular course; as one held to fill a vacancy
arising by death of the incumbent of the office.
State v. Andresen, 110 Or. 1, 222 P. 585, 587. In
a statute, any election at which officers are not
chosen. Hutchins v. City of Des Moines, 176 Iowa
189, 157 N.W. 881, 883. In determining whether
an election is special or general, regard must be
had to the subject-matter as well as date of the
election, and, if an election occurs throughout
state uniformly by direct operation of law, it is
a "general election," but, if it depends on employment of special preliminary proceeding peculiar
to process which may or may not occur, and the
609
ELECTION
election is applicable only to a restricted area
less than whole state, it is a "special election."
Hill v. Hartzell, 121 Or. 4, 252 P. 552, 555.
ELECTION AUDITORS. In English law. Officers annually appointed, to whom was committed
the duty of taking and publishing the account of
all expenses incurred at parliamentary elections.
See 17 & 18 Vict. c. 102, §§ 18, 26-28. But these
sections have been repealed by 26 Vict. c. 29,
which throws the duty of preparing the accounts
on the declared agent of the candidate, and the
duty of publishing an abstract of it on the returning officer. Wharton.
ELECTION CONTEST. A contest in behalf of
one who has failed of success in election against
right of one who has been declared or determined
by proper authority to have been successful.
State ex rel. Ingles v. Circuit Court of Spink
County, 63 S.D. 313, 258 N.W. 278.
ELECTION DISTRICT. A subdivision of territory, whether of state, county, or city, the boundaries of which are fixed by law, for convenience
in local or general elections. Lane v. Otis, 68 N.J.
Law, 656, 54 A. 442.
The term has been held not to refer to senatorial district. Appeal of Phillips, 262 Pa. 396, 105 A.
547, 548.
ELECTION DOWER. A name sometimes given
to the provision which a law or statute makes for
a widow in case she "elects" to reject the provision made for her in the will and take what the
statute accords. Stanton v. Leonard, 344 Mo. 998,
130 S.W.2d 487, 489.
ELECTION, ESTOPPEL BY. An estoppel which
arises by a choice between inconsistent remedies.
Aladdin Temple Ben. Ass'n, D. 0. K. K. v. American Standard Life Ins. Co., 235 Ala. 431, 179 So.
243, 245.
An estoppel predicated on a voluntary and intelligent
action or choice of one of several things which is inconsistent with another, the effect of the estoppel being to
prevent the party so choosing from afterwards reversing
his election or disputing the state of affairs or rights of
others resulting from his original choice. Yates v. Hurd,
8 Colo. 343, 8 Pac. 575.
The doctrine of "estoppel by election" against beneficiary who has elected to take favorable provisions of will
from objecting to other provisions of will applies only
where will undertakes to bestow a gift and also deprive
donee of a prior existing right, thus confronting devisee
with alternative of accepting devise and renouncing prior
right or of retaining latter and renouncing devise. Mason
& Mason v. Brown, Tex.Civ.App., 182 S.W.2d 729, 733.
ELECTION JUDGES. In English law. Judges
of the high court selected in pursuance of 31 &
32 Vict. c. 125, § 11, and Jud. Act 1873, § 38, for the
trial of election petitions.
ELECTION PETITIONS. Petitions for inquiry
into the validity of elections of members of parliament when it is alleged that the return of a
member is invalid for bribery or any other reason.
ELECTION RETURNS. The report made to the
board of canvassers of the number of votes cast
for each candidate, or proposition voted upon by
those charged by law with the duty of counting
or tallying the votes for or against the respective
candidates or propositions. Spear v. Marshall,
95 Utah 62, 79 P.2d 15, 16.
ELECTIONES FIANT RITE ET LIBERE SINE
INTERRUPTIONE ALIQUA. Elections should
be made in due form, and freely, without any
interruption. 2 Inst. 169.
ELECTIVE. Dependent upon choice; bestowed
or passing by election. Also pertaining or relating to elections; conferring the right or power to
vote at elections.
ELECTIVE FRANCHISE. The right of voting at
public elections; the privilege of qualified voters
to cast their ballots for the candidates they favor
at elections authorized by law. People v. Barber,
48 Hun, N.Y. 198; State v. Staten, 6 Cold. Tenn.
255; Xippas v. Commonwealth, 141 Va. 497, 126
S.E. 207, 209.
ELECTIVE OFFICE. One which is to be filled
by popular election. One filled by the direct exercise of the voters' franchise. In re Opinion of the
Justices, 83 N.H. 589, 139 A. 180, 183.
ELECTOR. A duly qualified voter; one who has
a vote in the choice of any officer; a constituent.
DeBauche v. City of Green Bay, 227 Wis. 148, 277
N.W. 147, 148. One who elects or has the right
of choice, or who has the right to vote for any
functionary, or for the adoption of any measure.
Aczel v. United States, C.C.A.Ind., 232 F. 652, 657.
In a narrower sense, one who has the general
right to vote, and the right to vote for public officers. One authorized to exercise the elective
franchise. McEvoy v. Christensen, 178 Iowa, 1180,
159 N.W. 179, 181. But a woman citizen, though
having such general right and authority to vote,
may nevertheless not be an "elector" entitled to
have her name put on a jury list, in view of a
state constitution and statute. People v. Barnett,
319 Ill. 403, 150 N.E. 290, 291.
While the terms "electors" and "voters" are sometimes
used interchangeably, their meaning is not precisely the
same, "electors" being properly applied to all those entitled to vote, whereas "voters" appropriately designates
only those actually voting. State ex rel. Chaney v. Grinstead, 314 Mo. 55, 282 S.W. 715, 719. A fortiori, "electors"
is a broader term than "registered voters." City of Dayton, Ohio, v. City Ry. Co., C.C.A.Ohio, 16 F.2d 401, 405.
One of the persons chosen to comprise the "electoral college" (q. v.).
Also, the title of certain German princes who
had a voice in the election of the Holy Roman
Emperors. The office of elector in some instances
became hereditary and was connected with territorial possessions.
Sometimes, one who exercises the right of election in equity. Brett, L. Cas. Mod. Eq. 257.
Registered Qualified Elector
One possessing the constitutional qualifications,
and registered under the registration statute.
Minges v. Board of Trustees of City of Merced,
27 Cal.App. 15, 148 P. 816, 817.
610
ELEGIT
ELECTORAL. Pertaining to electors or elections; composed or consisting of electors.
ELECTORAL COLLEGE. A name sometimes
given, in the United States, to the college or body
of electors of a state chosen to elect the president
and vice-president; also, the whole body of such
electors, composed of the electoral colleges of the
several states. Webster; Cent. Dict.; 2 Sto.
Const. § 1463; 1 Hare, Am.Const.L. 219; Stevens,
Sources of the Constitution of the U. S. 153, note;
Black, Const.L. 86; 1 Calhoun's Works, 175.
ELECTORAL COMMISSION. A commission created by an act of congress of January 29, 1877,
to decide certain questions arising out of the
presidential election of November, 1876, in which
Hayes and Wheeler had been candidates of the
Republican party and Tilden and Hendricks of
the Democratic party.
ELECTRIC CONDENSER. A device by which
excesses of current are stored and released, acting as a sort of elastic cushion for its variations.
It is made up of two electrodes, anode and cathode, separated by a nonconductor, the dielectric.
The capacity of the condenser depends upon the
dielectric, and varies inversely with its thickness.
Aerovox Corporation v. Concourse Electric Co.,
C.C.A.N.Y., 65 F.2d 386, 387. A reservoir of electrical energy. Aurynger v. R C A Mfg. Co., D.C.
Md., 35 ,F.Supp. 69.
ELECTRICITY. A highly subtle imponderable
fluid, whose presence or influence is only known
by its effect. Myers v. Portland Ry., Light &
Power Co., 68 Or. 599, 138 P. 213. An imponderable and invisible agent producing light, heat,
chemical decomposition, and other physical phenomena. United States v. City and County of San
Francisco, D.C.Cal., 23 F.Supp. 40, 52.
ELECTROCARDIOGRAPHY. The recording in
the form of a graph of certain minute electric
currents produced by the human heart in the
course of its action. Nichols v. Sanborn Co., D.C.
Mass., 35 F.Supp. 707, 708.
ELECTROCUTE. To put (a criminal) to death
by passing through the body a current of electricity of high power; also, by extension, to kill
by an electric current. Ferguson v. State, 90 Fla.
105, 105 So. 840.
The word is a hybrid, and has met with the disapproval
of some for that reason. "This barbarism jars the unhappy
latinist's nerves much more cruelly than the operation
denoted jars those of its victim." Fowler, Dict. of Mod.
English Usage (1926), p. 130. "To one having even an elementary knowledge of Latin grammar this word is no less
than disgusting, and the thing meant by it is felt to be
altogether too good for the word's inventor." Bierce,
Write it Right (1909), p. 24. It is not included in the New
English Dict. (Oxford, 1897), but is listed without comment
in the New Cent. Diet. (1927) and also in Funk & Wagnalls' New Standard Dict. (1925), which spells it "electricute." "It is considered by many to be inelegant, but is
widely used and has no accepted equivalent.' Webster,
New Internatl. Dict. (1927). The word is "now in established use, though formerly much criticized from the
learned point of view because of the manner of its formation." Krapp, Comprehensive Guide to Good English
(1927), p. 218.
ELECTROCUTION. A method of punishment of
death inflicted by causing to pass through the
body of the convicted person a current of electricity. See 1 Witth. & Beck. Med. Jur. 663; People v. Durston, 119 N.Y. 569. See Electrocute.
ELECTROLYSIS. The decomposition of a metal
solution in water, liquid ammonia, etc., accompanied by decomposition of the water into oxygen and hydrogen or of a mass of molten metal
by having an electric current passed through it,
Peoria Waterworks Co. v. Peoria Ry. Co., C.C.Ill.,
181 F. 990.
As applied to water pipes electrolysis is the stripping off
of small particles of the iron when a suitable electrolytic
solution is present leaving the carbon of which the pipe is
partly composed intact. Peoria Waterworks Co. v. Peoria
R. Co., C.C.Ill., 181 F. 990.
The term covers a wide variety of acts, ranging from the
removal of superfluous hair by electricity to the electrocution of a human being. People v. Lehrman, 296 N.Y.S.
580, 581, 251 App. Div. 451.
ELECTROLYTE. A substance which when dissolved in liquid is capable of conducting an electric current. Lee v. Congress Beauty Equipment
Co., D.C.Mass., 48 F.Supp. 827, 829; Ruben v.
Ariston Laboratories, D.C.Ill., 40 F.Supp. 551, 563.
ELEEMOSYNA REGIS, and ELEEMOSYNA ARATRI, or CARUCARUM. A penny which King
Ethelred ordered to be paid for every plow in
England towards the support of the poor. Leg.
Ethel. c. 1.
ELEEMOSYNIE. Possessions belonging to the
church. Blount.
ELEEMOSYNARIA. The place in a religious
house where the common alms were deposited,
and thence by the almoner distributed to the poor.
In old English law, the aumerie, aumbry, or ambry; words still used in common speech in the
north of England, to denote a pantry or cupboard. Cowell. The office of almoner. Cowell.
ELEEMOSYNARIUS. In old English law. An
almoner, or chief officer, who received the eleemosynary rents and gifts, and in due method distributed them to pious and charitable uses. Cowell; Wharton.
The name of an officer (lord almoner) of the
English kings, in former times, who distributed
the royal alms or bounty. Fleta, lib. 2, c. 23.
ELEEMOSYNARY. Relating to the distribution
of alms, bounty, or charity; charitable. In re
Bailey's Estate, 19 Cal.App.2d 135, 65 P.2d 102, 103.
ELEEMOSYNARY CORPORATION. A private
corporation created for charitable and benevolent
purposes. Society for Propagation of Gospel v.
New Haven, 8 Wheat. 464, 5 L.Ed. 662; 1 Bl.
Comm. 471. See Corporations.
ELEGANTER. In the civil law. Accurately;
with discrimination. Veazie v. Williams, 3 Story,
611, 636, Fed.Cas.No.16,907.
ELEGIT. (Lat. He has chosen.) This is the
name, in English practice, of a writ of execution
611
ELEMENT
first given by the statute of Westm. 2 (13 Edw. I.
c. 18) either upon a judgment for a debt or damages or upon the forfeiture of a recognizance
Taken in the king's court. It is so called because it
is in the choice or election of the plaintiff whether
he will sue out this writ or a fi. fa. By it the defendant's goods and chattels are appraised and
all of them (except oxen and beasts of the plow)
are delivered to the plaintiff, at such reasonable
appraisement and price, in part satisfaction of
his debt. If the goods are not sufficient, then the
moiety of his freehold lands, which he had at the
time of the judgment given, are also to be delivered to the plaintiff, to hold till out of the rents
and profits thereof the debt be levied, or till the
defendant's interest be expired. During this period the plaintiff is called "tenant by elegit," and
his estate, an "estate by elegit." This writ, or
its analogue, is in use in some of the United
States, as Virginia and Kentucky. See 3 Bl.
Comm. 418; North American F. Ins. Co. v. Graham, 5 Sandf. (N.Y.) 197.
ELEMENT. Material; substance. Hoskins Mfg.
Co. v. General Electric Co., D.C.I11., 212 F. 422,
427.
Also, one of the simple substances or principles
of which, according to early natural philosophers, the physical universe is composed, the four
elements pointed out by Empedocles being air,
water, earth, and fire. Webster. See Elements.
ELEMENTS. The forces of nature. The ultimate undecomposable parts which unite to form
anything. Leahy v. Wenonah Theater Co., 251
Mich. 594, 232 N.W. 184, 185. Popularly, fire, air,
earth, and water, anciently supposed to be the
four simple bodies of which the world was composed. Encyc. Dict. Often applied in a particular sense to wind and water, as "the fury of the
elements." Cent. Dict. Fire is one of the elements included in the expression "damages by the
elements" as used in a lease of a building. O'Neal
v. Bainbridge, 94 Kan. 518, 146 P. 1165, 1167, Ann.
Cas.1917B, 293. The same is true of water. Mills
v. United States, 52 Ct.C1. 452, 458. It has also
been said that "damages by the elements" means
the same thing as "damages by the act of God."
Van Wormer v. Crane, 51 Mich. 363, 16 N.W. 686,
47 Am.Rep. 582.
ELEVATOR. A building containing one or more
mechanical elevators, especially a warehouse for
the storage of grain; a hoisting apparatus; a lift;
4 car or cage for lifting and lowering passengers
or freight in a hoistway. Cent. Dict.
In Insurance Law
The term has been held not to be limited to
the car, or platform, but to include the elevator
shaft. London Guarantee & Accident Co. v. Ladd,
C.C.A.Mich., 299 F. 562, 565; Boles v. Royal Union
Life Ins. Co., 219 Iowa 178, 257 N.W. 386, 96 A.L.
R. 1400. It has also been held to include the machinery to which the car is attached, and by which
it is operated; and the fixed equipment necessary
to operate the elevator. The term has been inter-
preted as meaning only a passenger elevator.
Jahns & Knuth Co. v. American Indemnity Co.,
182 Wis. 556, 196 N.W. 569, 571.
Passenger Elevator
Any elevator ordinarily or customarily used
for conveying passengers, though also used for
conveying freight, and though not of any particular form laid in any particular way or with any
particular kind of gates or safety contriv,ances.
Wilmarth v. Pacific Mut. Life Ins. Co. of California, 168 Cal. 536, 143 P. 780, 782, Ann.Cas.1915B,
1120.
ELIGIBILITY. Proper to be chosen; qualified to
be elected; legally qualified. Rainey v. Taylor,
166 Ga. 476, 143 S.E. 383; State ex rel. Evans v.
Wheatley, 197 Ark. 997, 125 S.W.2d 101, 103. A.
word which, when used in connection with an office, where there are no explanatory words indicating that it is used with reference to the time of
election, may be deemed to refer to the qualification to hold the office rather than to be elected.
Bradfield v. Avery, 16 Idaho, 769, 102 P. 687, 23 L.
R.A.,N.S., 1228. See Eligible.
ELIGIBLE. Fit to be chosen. State ex rel. Sundfor v. Thorson, 72 N.D. 246, 6 N.W.2d 89, 92, 143
A.L.R. 599. Capable of serving, legally qualified
to serve. State v. Johnson, 123 S.C. 50, 115 S.E.
748, 749. Capable of being chosen, as a candidate
for office. Board of Com'rs of Guadalupe County
v. District Court of Fourth Judicial Dist., 29 N.
M. 244, 223 P. 516, 522. Also, capable of holding
office. State v. Wait, 95 Neb. 806, 146 N.W. 1048,
1049.
ELIMINATION. In old English law. The act of
banishing or turning out of doors; rejection.
ELINGUATION. The punishment of cutting out
the tongue.
ELISORS. In practice. Electors or choosers.
Persons appointed by the court to execute writs
of venire, in cases where both the sheriff and
coroner are disqualified from acting, and whose
duty is to choose—that is, name and return—the
jury. 3 Bl.Comm. 355; Doherty v. Kalmbach, 87
F.2d 539, 541, 66 App.D.C. 322.
Persons appointed to execute any writ, In default of the sheriff and coroner, are also called
"elisors." See Bruner v. Superior Court, 92 Cal.
239, 28 Pac. 341. An elisor may be appointed to
take charge of a jury retiring to deliberate upon
a verdict, when both sheriff and coroner are disqualified or unable to act. People v. Fellows, 122
Cal. 233, 54 Pac. 830.
ELL. A measure of length, answering to the
modern yard. 1 Bl.Comm, 275.
ELLENBOROUGH'S ACT. An English statute
(43 Geo. III. c. 58) punishing offenses against the
person.
612
EMANCIPATION
ELLIPSIS. Omission of words or clauses necessary to complete the construction, but not necessary to convey the meaning. State v. Staub, 182
La. 1040, 162 So. 766.
ELOGIUM. In the civil law. A will or testament.
ELOIGNE. (Fr. eloigner, to remove to a distance;
to remove afar off.) In practice. A return to a
writ of replevin, when the chattels have been
removed out of the way of the sheriff.
ELOIGNMENT. The getting a thing or person
out of the way; or removing it to a distance, so
as to be out of reach. Garneau v. Mill Co., 8
Wash. 467, 36 P. 463.
ELONGATA. In practice. Eloigned; carried
away to a distance. The old form of the return
made by a sheriff to a writ of replevin, stating
that the goods or beasts had been eloigned; that
is, carried to a distance, to places to him unknown.
3 Bl.Comm. 148; 3 Steph.Comm. 522; Fitzh. Nat.
Brev. 73, 74; Archb. N. Pract. 552. The word
eloigne is sometimes used as synonymous with
elongata.
ELONGATUS. Eloigned. A return made by a
sheriff to a writ de homine replegiando, stating
that the party to be replevied has been eloigned,
or conveyed out of his jurisdiction. 3 Bl.Comm.
129.
ELONGAVIT. In England, where in a proceeding
by foreign attachment the plaintiff has obtained
judgment of appraisement, but by reason of some
act of the garnishee the goods cannot be appraised, (as where he has removed them from
the city, or has sold them, etc.,) the serjeant-atmace returns that the garnishee has eloigned
them, i. e., removed them out of the jurisdiction,
and on this return (called an "elongavit") judgment is given for the plaintiff that an inquiry be
made of the goods eloigned. This inquiry is set
down for trial, and the assessment is made by a
jury after the manner of ordinary issues. Sweet.
ELOPEMENT. The act of a wife who voluntarily
deserts her husband to go away with and cohabit
with another man. 2 Bl.Comm. 130; State v.
O'Higgins, 178 N.C. 708, 100 S.E. 438. The departure of a married woman from her husband and
dwelling with an adulterer. Cowell; Tomlin. Also, the act of a man in going away with a woman
who has voluntarily left her husband, to indulge in
sexual intercourse with her. State v. Hopp, 186
N.C. 405, 119 S.E. 769, 773.
To constitute an elopement, the wife must not only leave
the husband, but go beyond his actual control; for if she
abandons the husband, and goes and lives in adultery in a
house belonging to him, it is said not to be an elopement.
Cogswell v. Tibbetts, 3 N.H. 42.
In a popular sense, also, the act of an unmarried woman in secretly leaving her home with a
man, especially with a view to marriage without
her parents' consent.
ELSEWHERE. In another place; in any other
place. See 1 Vern. 4, and note; 3 P.Wms. 56;
Azbill v. State, 19 Ariz. 499, 172 P. 658, 659; Su-
preme Ruling of Fraternal Mystic Circle v. Hoskins, Tex.Civ.App., 171 S.W. 812, 815. The term
does not always mean literally any other place
whatever, but may be more or less limited by the
context. See Commonwealth v. Bowser, 61 Pa.
Super.Ct. 107, 108, 114, 214; State v. Sanders, 136
La. 1059, 68 So. 125, Ann.Cas.1916E, 105.
In shipping articles, this term, following the
designation of the port of destination, must be
construed either as void for uncertainty or as
subordinate to the principal voyage stated in the
preceding words. Brown v. Jones, 2 Gall. 477, Fed.
Cas. No. 2,017.
ELUVIONES. In old pleading. Spring tides.
Townsh. Pl. 197.
EMANCIPATION. The act by which one who was
unfree, or under the power and control of another,
is rendered free, or set at liberty and made his
own master. Town of Plainville v. Town of Milford, 119 Conn. 380, 177 A. 138, 140.
The term is principally used with reference to
the emancipation of a minor child by its parents,
which involves an entire surrender of the right
to the care, custody, and earnings of such child
as well as a renunciation of parental duties. Delaware L. & W. R. Co. v. Petrowsky, C.C.A., 250 F.
554, 559; Public Service Co. of Indiana v. Tackett,
113 Ind.App. 307, 47 N.E.2d 851, 853. The emancipation may be express, as by voluntary agreement of parent and child, or implied from such
acts and conduct as import consent, and it may
be conditional or absolute, complete or partial.
Wallace v. Cox, 136 Tenn. 69, 188 S.W. 611, 612,
L.R.A.1917B, 690.
Complete emancipation is entire surrender of care, custody, and earnings of child, as well as renunciation of
parental duties. Beebe v. Kansas City, 223 Mo.App. 642, 17
S. W.2d 608, 612. And a "partial emancipation" frees a
child for only a part of the period of minority, or from
only a part of the parent's rights, or for some purposes,
and not for others. Memphis Steel Const. Co. v. Lister, 138
Tenn. 307, 197 S.W. 902, 903, L.R.A.1918B, 406.
Express Emancipation
That which results when parent and child voluntarily agree that the child, able to take care of
himself, may go out from his home and make his
own living, receive his own wages, and spend them
as he pleases. Nichols v. Harvey & Hancock, 206
Ky. 112, 266 S.W. 870, 871.
In England
The term "emancipation" has been borrowed
from the Roman law, and is constantly used in
the law of parochial settlements. 7 Adol. & E.,
N.S., 574, note.
In Roman Law
The enfranchisement of a son by his father,
which was anciently done by the formality of an
imaginary sale. This was abolished by Justinian,
who substituted the simpler proceeding of a manumission before a magistrate. Inst. 1, 12, 6.
EMANCIPATION PROCLAMATION. An executive proclamation, issued January 1, 1863, by Abra-
613
EMBARGO
ham Lincoln, declaring that all persons held in
slavery in certain designated states and districts
were and should remain free.
EMBARGO. A proclamation or order of state,
usually issued in time of war or threatened hostilities, prohibiting the departure of ships or goods
from some or all the ports of such state until
further order. The William King, 2 Wheat. 148,
4 L.Ed. 206. For the use of the term as applied
in a loose sense to the government's control of
coal exports during a strike, see Ernesto Foglino
& , Co. v. Webster, 216 N.Y.S. 225, 237, 217 App.Div.
282.
Embargo is the hindering or detention by any government of ships of commerce in its ports. If the embargo is
laid upon ships belonging to citizens of the state imposing
It, it is called a "civil embargo;" if, as more commonly
happens, it is laid upon ships belonging to the enemy, it is
called a "hostile embargo." The effect of this latter
embargo is that the vessels detained are restored to the
rightful owners if no war follows, but are forfeited to the
embargoing government if war does follow, the declaration of war being held to relate back to the original seizure
and detention. Brown.
The temporary or permanent sequestration of
the property of individuals for the purposes of a
government, e. g., to obtain vessels for the transport of troops, the owners being reimbursed for
this forced service. Man. Int. Law, 143.
EMBASSADOR. See Ambassador.
EMBASSAGE, or EMBASSY. The message or
commission given by a sovereign or state to a
minister, called an "ambassador," empowered to
treat or communicate with another sovereign or
state; also the establishment of an ambassador.
EMBER DAYS. In ecclesiastical law. Those days
which the ancient fathers called "quatuor tempora
jejunii" are of great antiquity in the church. They
are observed on Wednesday, Friday, and Saturday next after Quadragesima Sunday, or the first
Sunday in Lent, after Whitsuntide, Holyrood Day,
in September, and St. Lucy's Day, about the middle of December. Brit. c. 53. Our almanacs call
the weeks in which they fall the "Ember Weeks,"
and they are now chiefly noticed on account of
the ordination of priests and deacons; because the
canon appoints the Sundays next after the Ember
weeks for the solemn times of ordination, though
the bishops, if they please, may ordain on any
Sunday or holiday. Enc. Lond.
EMBEZZLEMENT. The fraudulent appropriation
to his own use or benefit of property or money
intrusted to him by another, by a clerk, agent,
trustee, public officer, or other person acting in a
fiduciary character. See 4 Bl.Comm. 230, 231.
The fraudulent appropriation of property by a
person to whom it has been intrusted, or to whose
hands it has lawfully come. American Life Ins.
Co. v. U. S. Fidelity & Guaranty Co., 261 Mich.
221, 246 N.W. 71.
Embezzlement is not an offense at common law, but was
created by statute. "Embezzle" includes in its meaning
appropriation to one's own use, and therefore the use of
the single word "embezzle," in the indictment or information, contains within itself the charge that the defendant
appropriated the money or property to his own use. State
v. Wolff, 34 La.Ann. 1153; State v. Hudson, 93 W.Va. 435,
117 S.E. 122, 125.
Embezzlement is common-law larceny extended by statute to cover cases where the stolen property comes originally into the possession of the defendant without a trespass. Moody v. People, 65 Colo. 339, 176 P. 476.
Embezzlement is a species of larceny, and the term is
applicable to cases of furtive and fraudulent appropriation
by clerks, servants, or carriers of property coming into
their possession by virtue of their employment. It is distinguished from "larceny," properly so called, as being
committed in respect of property which is not at the time
in the actual or legal possession of the owner. That is to
say, that in embezzlement the original taking of the property was lawful or with the consent of the owner, while in
larceny the felonious intent must have existed at the time
of the taking. Tredwell v. U. S., C.C.A.Va., 266 F. 350,
352. Both words, however, may be used, as in a bond, as
generic terms to indicate the dishonest and fraudulent
breach of any duty or obligation upon the part of an
employee to pay over to his employer, or account to him
for any money, securities, or other personal property, title
to which is in the employer, but which may come into the
possession of the employee. National Surety Co. v. Williams, 74 Fla. 446, 77 So. 212, 222. Under statute declaring
guilty of a felony an officer or clerk of a state bank who
"embezzles, abstracts, or willfully misapplies" its funds,
"embezzle" refers to acts done for the benefit of the actor
as against the bank, "misapply" covers acts having no
relation to pecuniary profit or advantage to the doer, while
"abstract" means only to take and withdraw from the possession and control of the bank; and while "embezzle-.
ment" may include the offenses of abstraction and willful
misapplication, either of those offenses may be committed
without embezzlement. Ferguson v. State, 80 Tex.Cr.R.
383, 189 S.W. 271, 273. See, however, Winkelmann v. State,
114 Neb. 1, 205 N.W. 565, 566.
EMBLEMATA TRIBONIANI. In the Roman law.
Alterations, modifications, and additions to the
writings of the older jurists, selected to make up
the body of the Pandects, introduced by Tribonian and his associates who constituted the commission appointed for that purpose, with a view
to harmonize contradictions, exscind obsolete matter, and make the whole conform to the law as
understood in Justinian's time, were called by this
name. Mackeld. Rom. Law, § 71.
EMBLEMENTS. The vegetable chattels called
"emblements" are the corn and other growth of
the earth which are produced annually, not spontaneously, but by labor and industry, and thence
are called "fructus industriales." Reiff v. Reiff,
64 Pa. 137. See Crop.
The growing crops of those vegetable productions of the
soil which are annually produced by the labor of the cultivator. They are deemed personal property, and pass as
such to the executor or administrator of the occupier,
whether he were the owner in fee, or for life, or for years,
if he die before he has actually cut, reaped, or gathered
the same; and this, although, being affixed to the soil,
they might for some purposes be considered, while growing, as part of the realty. Wharton.
The term also denotes the right of a tenant to
take and carry away, after his tenancy has ended,
such annual products of the land as have resulted
from his own care and labor.
Emblements are the away-going crop; in other words,
the crop which is upon the ground and unreaped when the
tenant goes away, his lease having determined; and the
right to emblements is the right in the tenant to take away
the away-going crop, and for that purpose to come upon
the land, and do all other necessary things thereon. Miller
v. Gray, Tex.Civ.App., 108 S.W.2d 265, 267, 268.
Where a life tenant, having leased the premises, died,
and the remainderman did not recognize the lease, the
lessee of the life tenant was entitled to the emblements,
614
EMIGRATION
which are the crops of grain growing yearly, but requiring
an outlay of labor or industry, without payment of any
compensation for use of the land in harvesting the emblements. Turner v. Turner, 132 Tenn. 592, 179 S. W. 132, 133.
EMENDATIO. In old English law. Amendment,
or correction. The power of amending and correcting abuses, according to certain rules and
measures. Cowell.
EMBLERS DE GENTZ. L. Fr. A stealing from
the people. The phrase occurs in the old rolls of
parliament: 'Whereas divers murders, emblers
de gentz, and robberies are committed," etc.
In Saxon law. A pecuniary satisfaction for an
injury; the same as emenda (q. v.). Spelman.
EMENDATIO PANIS ET CEREVISUE. In old
English law. The power of supervising and correcting the weights and measures of bread and
'ale, (assising bread and beer.) Cowell.
EMBOLISM. In medical jurisprudence. The mechanical obstruction of an artery or capillary by
some body traveling in the blood current, as, a
blood-clot (embolus), a globule of fat or an airbubble.
Embolism is to be distinguished from "thrombosis," a
thrombus being a clot of blood formed in the heart or a
blood vessel in consequence of some impediment of the
circulation from pathological causes, as distinguished from
mechanical causes, for example, an alteration of the blood
or walls of the blood vessels. When embolism occurs in
the brain (called "cerebral embolism") there is more or
less coagulation of the blood in the surrounding parts, and
there may be apoplectic shock or paralysis of the brain,
and its functional activity may be so far disturbed as to
cause entire or partial insanity. See Cundall v. Haswell,
23 R.I. 508, 51 A. 426.
EMBOLUS. In case of wounds is a product of
coagulation of the blood or blood clot. Berryhill
v. Nichols, 171 Miss. 769, 158 So. 470. A plug
which floats along until it becomes lodged so as
to obstruct the passage of the blood. It consists
usually of a clot or fibrin, a shred from a morbid
growth, a globule of fat, air bubbles, or a microorganism. An embolus or floating particle by
attaching itself or becoming wedged may form a
thrombosis or occlusion. Norris v. Industrial
Commission, 90 Utah 256, 61 P.2d 413, 414.
EMBRACEOR. A person guilty of the offense of
embracery (q. v.). See Co. Litt. 369.
EMBRACERY. In criminal law. This offense
consists in the attempt to influence a jury corruptly to one side or the other, by promises, persuasions, entreaties, entertainments, douceurs, and
the like. The person guilty of it is called an "embraceor." Moss v. Arnold, 63 Okla.Cr. 343, 75 P.2d
491, 503; Commonwealth v. Fahey, 113 Pa.Super.
598, 173 A. 854, 856.
Embracery being but an attempt corruptly to influence
juror, there is no such crime as attempt to commit
embracery. Wiseman v. Commonwealth, 143 Va. 631, 130
S.E. 249, 251.
EMENDA. Amends; something given in reparation for a trespass; or, in old Saxon times, in
compensation for an injury or crime. Spelman.
EMENDALS. An old word still made use of in
the accounts of the society of the Inner Temple,
where so much in emendals at the foot of an account on the balance thereof signifies so much
money in the bank or stock of the houses, for
reparation of losses, or other emergent occasions.
Spelman.
EIVICENDARE. In Saxon law. To make amends
or satisfaction for any crime or trespass committed; to pay a fine; to be fined. Spelman. Emendare se, to redeem, or ransom one's life, by payment of a weregild.
EMERGE. To arise; to come to light. "Unless
a matter happen to emerge after issue joined."
Hale, Anal. § 1.
EMERGENCY. A sudden unexpected happening;
an unforeseen occurrence or condition; specifically, perplexing contingency or complication of circumstances; a sudden or unexpected occasion for
action; exigency; pressing necessity.
A relatively permanent condition of insufficiency of service or of facilities resulting in social disturbance or distress. Kardasinksi v. Koford, 88
N.H. 444, 190 A. 702, 703, 111 A.L.R. 1017; Contract Cartage Co. v. Morris, D.C.I11., 59 F.2d 437,
446; Los Angeles Dredging Co. v. City of Long
Beach, 210 Cal. 348, 291 P. 839, 843, 71 A.L.R. 161.
"Emergency" in sense of constitutional provision respecting referendum does not mean expediency, convenience, or
best interest. State v. Hinkle, 161 Wash. 652, 297 P. 1071,
1072.
EMERGENCY EMPLOYMENT DOCTRINE. A
regularly employed servant possesses implied ati-,
thority to engage an assistant to aid in performing a task, within scope of servant's duties in case
of emergency rendering it absolutely necessary to
obtain such assistance, and without which emergency conditions could not be overcome by servant or any of his coemployees in regular service
of their common master. Hall v. 0. C. Whitaker
Co., 143 Tex. 397, 185 S.W.2d 720, 722, 723.
EMERGENCY LANDING AREA. Any area that
a plane could possibly be landed into with or without motor. It should be from five hundred to a
thousand feet in length, depending on obstructions
around it, and width is not so important, although
it should be at least two or three times that of
plane. Shaw v. Carson, 218 Iowa 1251, 257 N.W.
194.
EMERGENT YEAR. The epoch or date whence
any people begin to compute their time.
EMIGRANT. One who quits his country for any
lawful reason, with a design to settle elsewhere,
and takes his family and property, if he has any,
with him. Vattel, b. 1, c. 19, § 224. Benson v.
State, 36 Ga.App. 87, 135 S.E. 514.
EMIGRANT AGENT. One engaged in the business of hiring laborers for work outside the state.
Gleaton v. State, 55 Ga.App. 875, 191 S.E. 926.
EMIGRATION. The act of removing from one
country or state to another.
It is to be distinguished from "expatriation."
The latter means the abandonment of one's coun-
615
EMINENCE
The word "emit" is never employed in describing those
contracts by which a state binds itself to pay money at a
future day for services actually received, or for money
borrowed for present use. Nor are instruments executed
for such purposes, in common language, denominated "bills
of credit." "To emit bills of credit" conveys to the mind
the idea of issuing paper intended to circulate through the
community, for its ordinary purposes, as money, which
paper is redeemable at a future day. Briscoe v. Bank of
Kentucky, 11 Pet. 316, 9 L.Ed. 709.
try and renunciation of one's citizenship in it,
while emigration denotes merely the removal of
person and property to another country. The
former is usually the consequence of the latter.
Emigration is also used of the removal from one
section to another of the same country.
EMINENCE. An honorary title given to cardinals. They were called "illustrissimi" and "reverendissimi" until the pontificate of Urban VIII.
To throw off; give out; discharge. Alabama
Great Southern R. Co. v. Stewart, 15 Ala.App. 466,
73 So. 827, 828.
EMINENT DOMAIN. The power to take private
property for public use. MacVeagh v. Multonomah County, 126 Or. 417, 270 P. 502, 507.
The right of eminent domain is the right of the
state, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the state on
account of public exigency and for the public
good. Thus, in time of war or insurrection, the
proper authorities may possess and hold any part
of the territory of the state for the common safety; and in time of peace the legislature may authorize the appropriation of the same to public
purposes, such as the opening of roads, construction of defenses, or providing channels for trade
or travel.
The right of society, or of the sovereign, to dispose, in
case of necessity, and for the public safety, of all the
wealth contained in the state, is called "eminent domain."
Jones v. Walker, 2 Paine, 688, Fed.Cas.No.7,507.
Eminent domain is the highest and most exact idea of
property remaining in the government, or in the aggregate
body of the people in their sovereign capacity. It gives a
right to resume the possession of the property in the manner directed by the constitution and the laws of the state,
whenever the public interest requires it. Beekman v. Saratoga & S. R. Co., 3 Paige, N.Y., 45, 73, 22 Am. Dec. 679.
"The exaction of money from individuals under the right
of taxation, and the appropriation of private property for
public use by virtue of the power of eminent domain, must
not be confused. In paying taxes the citizen contributes
his just and ascertained share to the expenses of the government under which he lives. But when his property is
taken under the power of eminent domain, he is compelled
to surrender to the public something above and beyond his
due proportion for the public benefit. The matter is special. It is in the nature of a compulsory sale to the state."
Black, Tax-Titles, § 3; Beeland Wholesale Co. v. Kaufman,
234 Ala. 249, 174 So. 516, 520.
The term "eminent domain" is sometimes (but inaccurately) applied to the land, buildings, etc., owned
directly by the government, and which have not yet passed
into any private ownership. This species of property is
much better designated as the "public domain," or
"national domain."
EMISSARY. A person sent upon a mission as the
agent of another; also a secret agent sent to ascertain the sentiments and designs of others, and
to propagate opinions favorable to his employer.
EMISSION. In medical jurisprudence. The ejection or throwing out of any secretion or other
matter from the body; the expulsion of urine,
semen, etc.
EMIT. To put forth or send out; to issue. "No
state shall emit bills of credit." Const. U. S. art.
1, § 10.
To issue; to give forth with authority; to put
into circulation. See Bill of Credit.
In Scotch practice. To speak out; to state in
words. A prisoner is said to emit a declaration.
2 Alis.Crim.Pr. 560.
EMMENAGOGUES. In medical jurisprudence.
The name of a class of medicines supposed to
have the property of promoting the menstrual
discharge, and sometimes used for the purpose of
procuring abortion.
EMOLUMENT. The profit arising from office or
employment; that which is received as a compensation for services, or which is annexed to the
possession of office as salary, fees, and perquisites; advantage; gain, public or private. Webster. Any perquisite, advantage, profit, or gain
arising from the possession of an office. Apple v.
Crawford County, 105 Pa. 303, 51 Am.Rep. 205;
United States v. MacMillan, D.C.I11., 209 F. 266,
272; McLean v. United States, 3 S.Ct. 122, 124,
226 U.S. 374, 57 L.Ed. 260; State ex rel. Todd v.
Reeves, 196 Wash. 145, 82 P.2d 173, 175, 118 A.L.R.
177.
EMOTIONAL INSANITY. The species of mental
aberration produced by a violent excitement of
the emotions or passions, though the reasoning
faculties may remain unimpaired. A passion, effecting for a space of time complete derangement of accused's intellect, or an impulse, which
his mind is not able to resist, to do the act. Fannon v. Commonwealth, 295 Ky. 817, 175 S.W.2d
531, 533. See Insanity.
EMPALEMENT. In ancient law. A mode of inflicting punishment, by thrusting a sharp pole up
the fundament. Enc. Lond.
EMPANNEL. See Impanel.
EMPARLANCE. See Imparlance.
EMPARNOURS. L. Fr. Undertakers of suits.
Kelham.
EMPEROR. The title of the sovereign ruler of
an empire. This designation was adopted by the
rulers of the Roman world after the decay of the
republic, and was assumed by those who claimed
to be their successors in the "Holy Roman Empire," as also by Napoleon. "The sovereigns of
Japan and Morocco are often, though with little
propriety, called emperors." 10 Encyc. Amer.
(1929), p. 300. In western speech the former sovereigns of Turkey and China were called emperors.
Cent. Diet.
The title "emperor" seems to denote a power
and dignity superior to that of a "king." It ap-
616
EMPLOYEE
pears to be the appropriate style of the executive
head of a federal government, constructed on the
monarchial principle, and comprising in its organization several distinct kingdoms or other quasi
sovereign states; as was the case with the German empire from 1871 to 1918. "The proper meaning of emperor is the chief of a confederation of
states of which kings are members." Cent. Dict.,
quoting Encyc. Brit. "In general, an emperor is
the holder of a sovereignty extending over conquered or confederated peoples, a king is ruler of
a single people. Thus * * * the 'King of England' is 'Emperor of India.' " Webster's New
Int. Dict. Before the dissolution of the AustroHungarian empire in November, 1918, its monarch
was known as the Emperor of Austria and King
of Hungary.
EMPHASIZING FACTS. An instruction is said
to emphasis facts which may contain sufficient
facts to authorize a verdict, but nevertheless some
fact or facts are selected from the evidence and
mentioned in such a way as to indicate to the jury
that they have especial potency when that is not
justified. Robinson v. Ross, Mo., 47 S.W.2d 122,
125.
EMPHYTEUSIS. In the Roman and civil law.
A contract by which a landed estate was leased
to a tenant, either in perpetuity or for a long
term of years, upon the reservation of an annual
rent or canon, and upon the condition that the
lessee should improve the property, by building,
cultivating, or otherwise, and with a right in the
lessee to alien the estate at pleasure or pass it to
his heirs by descent, and free from any revocation, re-entry, or claim of forfeiture on the part of
the grantor, except for non-payment of the rent.
Inst. 3, 25, 3; 3 Bl.Comm. 232; Maine, Anc. Law,
289.
The right granted by such a contract, (jus emphyteuticum, or emphyteuticarium.) The real
right by which a person is entitled to enjoy another's estate as if it were his own, and to dispose of its substance, as far as can be done without deteriorating it. Mackeld. Rom. Law, § 326.
EMPHYTEUTA. In the civil law. The person to
whom an emphyteusis is granted; the lessee or
tenant under a contract of emphyteusis.
EMPHYTEUTICUS. In the civil law. Founded
on, growing out of, or having the character of, an
emphyteusis; held under an emphyteusis. 3 Bl.
Comm. 232.
EMPIRE. The dominion or jurisdiction of an emperor; the region over which the dominion of an
emperor extends; imperial power; supreme dominion; sovereign command.
EMPIRIC. A practitioner in medicine or surgery,
who proceeds on experience only, without science
or legal qualification; a quack. Parks v. State,
159 Ind. 211, 64 N.E. 862, 59 L.R.A. 190.
EMPLAZAM/ENTO. In Spanish law. A summons or citation, issued by authority of a judge,
requiring the person to whom it is addressed to
appear before the tribunal at a designated day
and hour.
EMPLEAD. To indict; to prefer a charge
against; to accuse.
EMPLOI. In French law. Equitable conversion.
When property covered by the regime dotal is
sold, the proceeds of the sale must be reinvested
for the benefit of the wife. It is the duty of the
purchaser to see that the price is so reinvested.
Arg. Fr. Mere. Law, 557.
EMPLOY. To engage in one's service; to use
as an agent or substitute in transacting business;
to commission and intrust with the management
of one's affairs; and, when used in respect to a
servant or hired laborer, the term is equivalent to
hiring, which implies a request and a contract for
a compensation, and has but this one meaning
when used in the ordinary affairs and business of
life. Tennessee Coal, Iron & R. Co. v. Muscoda
Local No. 123, Ala., 64 S.Ct. 698, 703, 705, 321 U.S.
590, 88 L.Ed. 949; Slocum Straw Works v. Industrial Commission, 232 Wis. 71, 286 N.W. 593, 598;
It is a synonym of "appoint". Morris v. Parks,
145 Or. 481, 28 P.2d 215, 216; Board of Com'rs of
Colfax County v. Department of Public Health,
44 N.M. 189, 100 P.2d 222, 223, It is also synonymous with "hire." Nat. Wooden Box Ass'n v.
U. S., Ct.C1., 103 Ct.C1. 595, 59 F.Supp. 118, 119.
EMPLOYED. This signifies both the act of doing
a thing and the being under contract or orders to
do it. To give employment to; to have employment. State v. Birmingham Beauty Shop, Ala.,
198 So. 435, 436.
EMPLOYEE. This word "is from the French,
but has become somewhat naturalized in our
language. Strictly and etymologically, it means
`a person employed,' but, in practice in the French
language, it ordinarily is used to signify a person
in some official employment, and as generally
used with us, though perhaps not confined to any
official employment, it is understood to mean some
permanent employment or position." The word
may be more extensive than "clerk" or "officer,"
and may signify any one in place, or having
charge or using a function, as well as one in office. Hopkins v. Cromwell, 89 App.Div. 481, 85
N.Y.S. 839.
One who works for an employer; a person
working for salary or wages; applied to anyone
so working, but usually only to clerks, workmen,
laborers, etc., and but rarely to the higher officers
of a corporation or government or to domestic
servants. Keefe v. City of Monroe, 120 So. 106, 9
La.App. 545; State ex rel. Gorczyca v. City of
Minneapolis, 174 Minn. 594, 219 N.W. 924.
Generally, when person for whom services are
performed has right to control and direct individual who performs services not only as to result to be accomplished by work but also as to
details and means by which result is accom-
617
EMPLOYEE
plished, individual subject to direction is an "employee". Young v. Demos, 70 Ga.App. 577, 28 S.E.
2d 891, 893.
"Servant" is synonymous with "employee".
Gooden v. Mitchell, Del.Super., 21 A.2d 197, 200,
201, 203, 2 Terry 301; Gibson v. Gillette Motor
Transport, Tex.Civ.App., 138 S.W.2d 293, 294. Tennessee Valley Appliances v. Rowden, 24 Tenn.
App. 487 146 S.W.2d 845, 848.
"Employee" must be distinguished from "independent
contractor," "officer," "vice-principal," "agent," etc. The
term is often specially defined by statutes ; and whether
one is an employee or not within a particular statute will
depend upon facts and circumstances. For examples; Fair
Labor Standards Act, Fleming v. Demeritt Co., D.C.Vt., 56
F.Supp. 376, 378, 390; Schroepfer v. A. S. Abell Co.,
D.C.Md., 48 F.Supp. 88, 94, 95, 98. Motor Carriers' Act,
United States v. American Trucking Ass'n, App.D.C., 60
S.Ct. 1059, 1065, 310 U.S. 534, 84 L.Ed. 1345; West v.
Smoky Mountain Stages, D.C.Ga., 40 F.Supp. 296, 298, 299.
National Labor Relations Act. Standard Lime & Stone Co.
v. National Labor Relations Board, C.C.A.4, 97 F.2d 531,
534, 535, 537; Eagle-Picher Mining Co. v. National Labor
Relations Board, C.C.A.8, 119 F.2d 903, 911. Social Security
Act, Kentucky Cottage Industries v. Glenn, D.C.Ky., 39
F.Supp. 642, 644, 645; Yearwood v. United States, D.C.La.,
55 F.Supp. 295, 299, 300. State Labor Relations Law, In re
New York State Labor Relations Board, 37 N.Y.S.2d 304,
308, 309; New York State Labor Relations Board v. Union
Club of City of N. Y., 52 N.Y.S.2d 74, 83, 268 App.Div. 516.
Unemployment Compensation Act. In re General Electric
Co., 66 Idaho 91, 156 P.2d 190, 191. In re Keith, 30 N.Y.S.2d
206, 262 App.Div. 984. Workmen's Compensation Act, Stiles
v. Des Moines Council of Boy Scouts of America, 209 Iowa
1235, 229 N.W. 841, 844; Essex County Country Club v.
Chapman, 113 N.J.L. 182, 173 A. 591, 592.
For "Executive Employee", see that title.
EMPLOYER.
One who employs the services of
others; one for whom employees work and who
pays their wages or salaries. The correlative of
employee." Angell v. White Eagle Oil & Refining Co., 169 Minn. 183, 210 N.W. 1004, 1005. "Master" is a synonymous term. Tennessee Valley
Appliances v. Rowden, 24 Tenn.App. 487, 146 S.W.
2d 845, 846; Gooden v. Mitchell, 2 Terry 301, 21 A.
2d 197, 200.
The following are examples of persons who have been or
have not been classified as "employers" within various
statutes. Carriers' Taxing Act. Interstate Transit Lines
v. U. S., D.C.Neb., 56 F.Supp. 332; Walling v. Baltimore
Steam Packet Co., C.C.A.Md., 144 F.2d 130, 132. Fair
Labor Standards Act. Bowe v. Judson C. Burns, Inc.,
D.C.Pa., 46 F.Supp. 745, 748; Barrow v. Adams & Co. Real
Estate, 46 N.Y.S.2d 357, 359, 182 Misc. 641. National Labor
Relations Act. National Labor Relations Board v. Condenser Corporation of America, C.C.A.3, 128 F.2d 67, 71;
N. L. R. B. v. Hofmann, C.C.A.3, 147 F.2d 679, 681, 157
A.L.R. 1149. Social Security Act. Matcovich v. Anglem,
C.C.A.Cal., 134 F.2d 834, 837; Florida Industrial Commission v. Peninsular Life Ins. Co., 152 Fla. 55, 10 So.2d 793,
794. Unemployment Compensation Act, Smith v. Brooklyn
Bar Ass'n, 44 N.Y.S.2d 620, 621, 266 App.Div. 1038; State
ex rel. Merion v. Unemployment Compensation Board of
Review, 142 Ohio St. 628, 53 N.E.2d 818, 820.
EMPLOYERS' LIABILITY ACTS.
Statutes defining or limiting the occasions and the extent to
which employers shall be liable in damages for
injuries to their employees occurring in the course
of the employment, and particularly (in recent
times) abolishing the common-law rule that the
employer is not liable if the injury is caused by
the fault or negligence of a fellow servant.
EMPLOYMENT. The act of hiring (People v.
Hyde, 89 N.Y. 11, 16), implying a request and a
contract for compensation. State v. Deck, 108 Mo.
App. 292, 83 S.W. 314, 315, (quoting and adopting
definition in State v. Foster, 37 Iowa, 404; McCluskey v. Cromwell,
N.Y. 593).
n
It does not necessarily import an engagement
or rendering services for another. A person may
as well be "employed" about his Awn business as
in the transaction of the same for a principal.
State v. Canton, 43 Mo. 51.
Act of employing or state of being employed;
that which engages or occupies; that which consumes time or attention; also an occupation, profession, trade, post or business. Hinton v. Columbia River Packers' Ass'n, C.C.A.Or., 117 F.2d 310;
Davis v. Lincoln County, 117 Neb. 148, 219 N.W.
899, 900.
Includes the doing of the work and a reasonable margin of time and space required in passing to and from the place where the work is to
be done. California Casualty Indemnity Exchange v. Industrial Accident Commission, 21 Cal.
2d 751, 135 P.2d 158, 161; Park Utah Consol. Mines
Co. v. Industrial Commission, 103 Utah 64, 133
P.2d 314, 317.
The term "office" implies a delegation of a portion of the
sovereign power to, and the possession of it by, the person
filling the office, while an "employment" does not comprehend a delegation of any part of the sovereign authority.
Dade County v. State, 95 Fla. 465, 116 So. 72, 76.
tMPLOYMENT AGENCY. Business operated by
a person, firm or corporation engaged in procuring, for a fee, employment for others and employees for employers. McMillan v. City of Knoxville, 139 Tenn. 319, 202 S.W. 65, 66.
EMPORIUM. A
place for wholesale trade in
commodities carried by sea. The name is sometimes applied to a seaport town, but it properly
signifies only a particular place in such a town.
Smith, Dict. Antiq.
EMPOWER. A grant of authority rather than a
command of its exercise. In re Whiteman's Will,
52 N.Y.S.2d 723, 725, 268 App.Div. 591.
EMPRESARIOS. In Mexican law. Undertakers
or promoters of extensive enterprises, aided by
concessions or monopolistic grants from government; particularly, persons receiving extensive
land grants in consideration of their bringing
emigrants into the country and settling them on
the lands, with a view of increasing the population
and developing the resources of the country. U.
S. v. Maxwell Land-Grant Co., 7 S.Ct. 1015, 121
U.S. 325, 30 L.Ed. 949.
EMPRESTIDO. In Spanish law. A loan. Something lent to the borrower at his request. Las
Partidas, pt. 3, tit. 18, 1. 70.
EMPTIO.
In the Roman and civil law. The act
of buying; a purchase.
EMPTIO BONORUM. A
species of forced assignment for the benefit of creditors; being a public
sale of an insolvent debtor's estate whereby the
purchaser succeeded to all his property, rights,
and claims, and became responsible for his debts
618
ENACT
EN GROS. Fr. In gross. Total; by wholesale.
and liabilities to the extent of a quota fixed before the transfer. See Mackeld. Rom. Law, §
521.
EN JUICIO. Span. Judicially; in a court of
law; in a suit at law. White, New Recop. b. 2,
tit. 8, c. 1.
EMPTIO ET VENDITIO. Purchase and sale;
sometimes translated "emption and vendition."
The name of the contract of sale in the Roman
law. Inst. 3, 23; Bract. fol. 61b. Sometimes
made a compound word, emptio-venditio.
EN MASSE. Fr. In a mass; in a lump; at
wholesale.
EMPTIO REI SPERATIE. A purchase in the
hope of an uncertain future profit; the purchase
of a thing not yet in existence or not yet in the
possession of the seller, as, the cast of a net or
a crop to be grown, and the price of which is to
depend on the actual gain. On the other hand,
if the price is fixed and not subject to fluctuation,
but is to be paid whether the gain be greater or
less, it is called emptio spei. Mackeld. Rom.
Law, § 400.
EMPTOR. Lat. A buyer or purchaser. Used in
the maxim "caveat emptor," let the buyer beware; i. e., the buyer of an article must be on his
guard and take the risks of his purchase.
EMPTOR EMIT QUAM MINIMO POTEST, VENDITOR VENDIT QUAM MAXIMO POTEST.
The buyer purchases for the lowest price he can;
the seller sells for the highest price he can. 2
Kent, Comm. 486.
EMTIO. In the civil law. Purchase. This form
of the word is used in the Digests and Code.
Dig. 18, 1; Cod. 4, 49. See Emptio.
EN OWEL MAIN. L. Fr. In equal hand. The
word "owel" occurs also in the phrase "owelty
of partition."
EN RECOUVREMENT. Fr. In French law. An
expression employed to denote that an indorsement made in favor of a person does not transfer
to him the property in the bill of exchange, but
merely constitutes an authority to such person
to recover the amount of the bill. Arg. Fr. Mere.
Law, 558.
EN ROUTE. Fr. On the way; in the course of
a voyage or journey; in course of transportation.
McLean v. U. S., 17 Ct.C1. 90.
EN VENTRE SA MERE. L. Fr. In its mother's
womb. A term descriptive of an unborn child.
For some purposes the law regards an infant
en ventre as in being. It may take a legacy;
have a guardian; an estate may be limited to its
use, etc. 1 Bl. Comm. 130.
EN VIE. L. Fr. In life; alive. Britt. c. 50.
ENABLE. To give power to do something. In
the case of a person under disability as to dealing with another, "enable" has the primary meaning of removing that disability; not of conferring
a compulsory power as against that other; 66 L.
J. Ch. 208; [1897] A. C. 647. To make able.
Summers v. Chicago Title & Trust Co., 335 Ill.
564, 167 N.E. 777, 779.
EMTOR. In the civil law. A buyer or purchaser;
the buyer. Dig. 18, 1; Cod. 4, 49.
EMTRIX. In the civil law. A female purchaser;
the purchaser. Cod. 4, 54, 1.
EN ARERE. L. Fr. In time past. 2 Inst. 506.
EN AUTRE DROIT. In the right of another. See
Autre Droit.
EN BANC. L. Fr. In the bench. 1 Anders. 51.
EN BREVET. In French law. An acte is said
to be en brevet when a copy of it has not been
recorded by the notary who drew it.
EN DECLARATION DE SIMULATION. A form
of action used in Louisiana. Its object is to have a
contract declared judicially a simulation and a
nullity, to remove a cloud from the title, and to
bring back, for any legal purpose, the thing sold
to the estate of the true owner. Edwards v. Ballard, 20 La.Ann. 169.
EN DEMEURE. In default. Used in Louisiana
of a debtor who fails to pay on demand according to the terms of his obligation. See Bryan v.
Cox, 3 Mart. (La. N. S.) 574.
EN ESCHANGE IL COVIENT QUE LES ESTATES SOIENT EGALES. Co. Litt. 50. In an
exchange it is desirable that the estates be
equal.
EN FAIT. Fr. In tact; in deed; actually.
EN MORT MAYNE. L. Fr. In a dead hand;
in mortmain. Britt. c. 43.
ENABLING POWER. When the donor of a power, who is the owner of the estate, confers upon
persons not seised of the fee the right of creating interests to take effect out of it, which could
not be done by the donee of the power unless by
such authority, this is called an "enabling power."
2 Bouv. Inst. no. 1928.
ENABLING STATUTE. The act of 32 Henry
VIII. c. 28, by which tenants in tail, husbands
seised in right of their wives, and others were
empowered to make leases for their lives or for
twenty-one years, which they could not do before. 2 Bl. Comm. 319; Co. Litt. 44a. The phrase
is also applied to any statute enabling persons
or corporations to do what before they could
not. It is applied to statutes which confer new
powers.
ENACH. In Saxon law. The satisfaction for a
crime; the recompense for a fault. Skene.
ENACT. To establish by law; to perform or
effect; to decree. The usual introductory formula in making laws is, "Be it enacted." In re Senate File, 25 Neb. 864, 41 N.W. 981.
619
ENACTING
ENACTING CLAUSE. That part of a statute
which declares its enactment and serves to identify it as an act of legislation proceeding from the
proper legislative authority. Various formulas
are used for this clause, such as "Be it enacted
by the people of the state of Illinois represented
in general assembly," "Be it enacted by the senate
and house of representatives of the United States
of America in congress assembled," "The general
assembly do enact," etc. A section of a statute
denouncing an offense is sometimes spoken of as
the "enacting clause." City of Astoria v. Malone,
169 P. 749, 750, 87 Or. 88. See United States v.
Mendelsohn, D.C.N.J., 32 F.Supp. 622, 623, questioning this definition.
ENAJENACION. In Spanish and Mexican law.
Alienation; transfer of property. The act by
which the property in a thing, by lucrative title,
is transferred, as a donation; or by onerous title,
as by sale or barter. In a more extended sense,
the term comprises also the contracts of emphyteusis, pledge, and mortgage, and even the creation of a servitude upon an estate. Escriche;
Mulford v. Le Franc, 26 Cal. 88.
ENBREVER. L. Fr. To write down in short;
to abbreviate, or, in old language, timbreviate;
to put into a schedule. Britt. c. 1.
ENCAUSTUM. In the civil law. A kind of ink
or writing fluid appropriate to the use of the emperor. Cod. 1, 23, 6.
ENCEINTE. Pregnant. See Pregnancy.
ENCHESON. The occasion, cause, or reason for
which anything is done. Termes de la Ley.
ENCLOSE. See Inclose.
ENCLOSURE. See Inclosure.
ENCOMIENDA. In Spanish law. A grant from
the crown to a private person of a certain portion
of territory in the Spanish colonies, together with
the concession of a certain number of the native
,inhabitants, on the feudal principle of commendation. 2 Wools. Pol. Science, 161, 162. Also a
royal grant of privileges to the military orders
of Spain.
ENCOURAGE. In criminal law. To instigate;
to incite to action; to give courage to; to inspirit; to embolden; to raise confidence; to make
confident; to help; to forward; to advise. Comitez v. Parkerson, C.C.La., 50 F. 170.
ENCROACH. To enter by gradual steps or
stealth into the possessions or rights of another;
to trespass; intrude. Miami Corporation v. State,
186 La. 784, 173 So. 315, 318. To gain unlawfully
upon the lands, property, or authority of another;
as if one man presses upon the grounds of another
too far, or if a tenant owe two shillings rent-service, and the lord exact three. So, too, the Spencers were said to encroach the king's authority.
Blount; Plowd. 94a.
or fence, which illegally intrudes into or invades
the highway or incloses a portion of it, diminishing its width or area, but without closing it to
public travel. State v. Scott, 82 N.H. 278, 132 A.
685, 686.
In the law of easements. Where the owner of
an easement alters the dominant tenement, so as
to impose an additional restriction or burden on
the servient tenement, he is said to commit an encroachment. Sweet.
ENCUMBER. See Incumber.
ENCUMBRANCE. See Incumbrance.
END. Object; intent. Things are construed according to the end. Finch, Law, b. 1, c. 3, no. 10.
END LINES. In mining law, the end lines of a
claim, as platted or laid down on the ground, are
those which mark its boundaries on the shorter
dimension, where it crosses the vein, while the
"side lines" are those which mark its longer
dimension, where it follows the course of the vein.
But with reference to extra-lateral rights, if the
claim as a whole crosses the vein, instead of following its course, the end lines will become side
lines and vice versa. Consolidated Wyoming
Gold Min. Co. v. Champion Min. Co., C.C.Cal., 63
F. 549.
END OF WILL. Point in will at which despositive provisions terminate. In re Levanti's Will,
252 N.Y.S. 497, 498, 141 Misc. 248. In re Coyne's
Estate, 349 Pa. 331, 37 A.2d 509, 510.
END ON OR NEARLY SO. Approaching vessels
whose courses diverge not more than one or two
points are meeting "end on or nearly so," within
article 18 of the Inland Ruls (33 USCA § 203),
and are required to pass port to port. The Amolco, C.C.A.Mass., 283 F. 890, 893.
END SILLS. The sill of a car is one of the main
longitudinal timbers which are connected transversely by the end sills, bolsters, and cross-ties.
Sills are divided into side sills, intermediate sills,
and center sills. The end sill is the transverse
member of the under frame of a car framed
across the ends of all the longitudinal sills. In
passenger cars the end sill comes directly under
the end door; the platform with its various parts
usually being a separate construction. The platform end sill is the transverse end piece of the
platform frame, and is also called the "end timber" and buffer beam on passenger equipment
cars. Hill v. Minneapolis, St. P. & S. S. M. Ry. Co.,
160 Minn. 484, 200 N.W. 485, 486.
END TO END. The expression "end to end,"
used in a patent claim in describing the relative
position of rollers, does not necessarily require
that there shall be no longitudinal space between
the ends of the rollers, nor impose a limitation
which will enable another to avoid infringement
by leaving a space between them, where it does
not change their function or mode of operation.
Stebler v. Riverside Heights Orange Growers'
Ass'n, C.C.A.Cal., 205 F. 735, 740.
ENCROACHMENT. An encroachment upon a
street or highway is a fixture, such as a wall
620
ENFORCEABLE
ENDEAVOR. To exert physical and intellectual
strength toward the attainment of an object; a
systematic or continuous effort. Thompson v.
Corbin, Tex.Civ.App., 137 S.W.2d 157, 159.
ENDENZIE, or ENDENIZEN. To make free; to
enfranchise.
ENDOCARDITIS. In medical jurisprudence. An
inflammation of the living membrane of the heart.
Alien Enemy
An alien, that is, a citizen or subject of a foreign state or power, residing within a given country, is called an "alien ami" if the country
where he lives is at peace with the country
of which he is a citizen or subject; but if a state
of war exists between the two countries, he is
called an "alien enemy," and in that character is
denied access to the courts or aid from any of the
departments of government.
ENDORSE. See Indorse.
ENDOW. To give a dower; to bestow upon; to
make pecuniary provision for. Fish v. Fish, 184
Ky. 700, 212 S.W. 586, 587.
ENDOWED SCHOOLS. In England, certain
schools having endowments are distinctively
known as "endowed schools;" and a series of
acts of parliament regulating them are known as
the "endowed schools acts." Mozley & Whitley.
ENDOWMENT. The assignment of dower; the
setting off a woman's dower. 2 Bl. Comm. 135.
In appropriations of churches (in English law,)
the setting off a sufficient maintenance for the
vicar in perpetuity. 1 Bl. Comm. 387.
The act of settling a fund, or permanent pecuniary provision, for the maintenance of a public
institution, charity, college, etc.
A fund settled upon a public institution, etc.,
for its maintenance or use.
The words "endowment" and "fund," in a statute
exempting from taxation the real estate, the furniture and
personal property, and the "endowment or fund" of religious and educational corporations, are ejusdem generic,
and intended to comprehend a class of property different
from the other two, not real estate or chattels. The difference between the words is that "fund" is a general
term, including the endowment, while "endowment" means
that particular fund, or part of the fund, of the institution,
bestowed for its more permanent uses, and usually kept
sacred for the purposes intended. The word "endowment"
does not, in such an enactment, include real estate. See
First Reformed Dutch Church v. Lyon, 32 N.J.Law, 360;
Appeal of Wagner Institute, 116 Pa. 555, 11 A. 402.
ENDOWMENT POLICY. In life insurance. A
policy which is payable when the insured reaches
a given age, or upon his decease, if that occurs
earlier. Central States Life Ins. Co. v. Morris,
202 Ark. 969, 155 S.W.2d 333, 336, 202 Ark. 969.
ENDURANCE. State or capability of lasting;
continuance; or act or instance of bearing or
suffering; a continuing or the power of continuing under pain, hardship, or distress without being
overcome; sufferance; as beyond endurance.
State ex rel. Adams v. Crowder, 46 N.M. 20, 120
P.2d 428, 431.
ENEMY, in public law, signifies either the state
which is at war with another, or a citizen or subject of such state, or a person, partnership, or
corporation doing business within the territory of
an enemy state or an ally thereof. United States
v. Fricke, D.C.N.Y., 259 F. 673, 675; Rossie v.
Garvan, D.C.Conn., 274 F. 447, 453.
Enemy Belligerent
Citizens who associate themselves with the military arm of an enemy government and enter the
United States bent on hostile acts. Ex parte Quirin, App.D.C., 63 S.Ct. 2, 15, 317 U.S. 1, 87 L.Ed. 3.
Enemy's Property
In international law, and particularly in the
usage of prize courts, this term designates any
property which is engaged or used in illegal intercourse with the public enemy, whether belonging to an ally or a citizen, as the illegal traffic
stamps it with the hostile character and attaches
to it all the penal consequences. Prize Cases, 2
Black, 674, 17 L.Ed. 459.
Public Enemy
A nation at war with the United States; also
every citizen or subject of such nation. Not including robbers, thieves, private depredators, or
riotous mobs. State v. Moore, 74 Mo. 417, 41 Am.
Rep. 322.
The term has latterly acquired, in the vocab
ulary of journalism and civic indignation, a more
extended meaning, denoting a particularly notorious offender against the criminal laws, especially
one who seems more or less immune from successful prosecution.
ENFEOFF. To invest with an estate by feoffment. To make a gift of any corporeal hereditaments to another. See Feoffment.
ENFEOFFMENT. The act of investing with any
dignity or possession; also the instrument or deed
by which a person is invested with possessions.
ENFITEUSIS. In Spanish law. Emphyteusis,
(q. v.). See Mulford v. Le Franc, 26 Cal. 103.
ENFORCE. To put into execution; to cause to
take effect; to make effective; as, to enforce a
writ, a judgment, or the collection of a debt or
fine; to compel obedience to. Dozier v. City of
Gatesville, Tex.Civ.App., 51 S.W.2d 1091.
ENFORCEABLE. Word "enforceable," standing
alone, does not mean "perform" or "performable,"
but, when employed in contract for performance
of obligation relating to venue, it is synonymous
with word "execute," and must be given meaning
of "perform," "performable," and "to perform."
It does not necessarily imply actual force or coercion, but may mean to be executed; to put
621
ENFRANCHISE
into execution; to cause to take effect. Glover v.
American Mortgage Corporation, Tex.Civ.App., 94
S.W.2d 1235, 1236.
ENFRANCHISE. To make free; to incorporate
a man in a society or body politic.
ENFRANCHISEMENT. The act of making free;
giving a franchise or freedom to; investiture with
privileges or capacities of freedom, or municipal
or political liberty. Admission to the freedom of
a city; admission to political rights, and particularly the right of suffrage. Anciently, the acquisition of freedom by a villein from his lord.
The word is now used principally either of
the manumission of slaves, (q. v.,) of giving to a
borough or other constituency a right to return a
member or members to parliament, or of the
conversion of copyhold into freehold. Mozley &
Whiteley.
ENFRANCHISEMENT OF COPYHOLDS. In
English law. The conversion of copyhold into
freehold tenure, by a conveyance of the fee-simple
of the property from the lord of the manor to the
copyholder, or by a release from the lord of all
seigniorial rights, etc., which destroys the customary descent, and also all rights and privileges annexed to the copyholder's estate. 1 Watk. Copyh.
362; 2 Steph. Comm. 51.
ENGAGE. To employ or involve one's self; to
take part in; to embark on. State ex rel. Kusie
v. Weber, 72 N.D. 705, 10 N.W.2d 741, 745. It imports more than a single act or transaction or an
occasional participation. Head v. New York Life
Ins. Co., C.C.A.Okl., 43 F.2d 517, 519; Lee v.
Guardian Life Ins. of America, 46 N.Y.S.2d 241,
246, 187 Misc. 221.
"Engage" means to take part in or be employed in and
denotes more than a single act or single transaction while
"participate" means simply to take or have a part or share
in, and may apply equally to a single act or many acts.
Lawyers Lloyds of Texas v. Webb, Tex.Civ.App., 150
S.W.2d 181, 184.
ENGAGED IN AVIATION, See Aviation.
ENGAGED IN COMMERCE. To be "engaged in
commerce" an employee must be actually engaged
in the movement of commerce or the services he
performs must be so closely related thereto as to
be for all practical purposes an essential part
thereof; McLeod v. Threlkeld, Tex., 63 S.Ct. 1248,
1251, 1252, 319 U.S. 491, 87 L.Ed. 1538; Boutell v.
Walling, C.C.A.Mich., 148 F.2d 329, 331.
ENGAGED IN EMPLOYMENT. To be rendering
service for employer under terms of employment,
and is more than being merely hired to commence
work. Walling v. Consumers Co., C.C.A.Ill., 149
F.2d 626, 629.
ENGA GEMENT. In French law. A contract.
The obligation arising from a quasi contract.
The terms "obligation" and "engagement" are
said to be synonymous, (17 Toullier, no. 1;) but
the Code seems specially to apply the term "enga gement" to those obligations which the law imposes on a man without the intervention of. any
contract, either on the part of the obligor or the
obligee, (article 1370.) An engagement to do or
omit to do something amounts to a promise. Rue
v. Rue, 21 N.J.Law, 369.
In English practice. The term has been appropriated to denote a contract entered into by a
married woman with the intention of binding or
charging her separate estate, or, with stricter accuracy, a promise which in the case of a person
sui juris would be a contract, but in the case of
a married woman is not a contract, because she
cannot bind herself personally, even in equity.
Her engagements, therefor, merely operate as
dispositions or appointments pro tanto of her
separate estate. Sweet.
Under statute rendering national bank stockholders liable to assessment in order to discharge
an "engagement" of the bank, the quoted word
includes all pecuniary liabilities and obligations of
the bank. Oppenheimer v. Harriman Nat. Bank
& Trust Co. of City of New York, N.Y., 57 S.Ct.
719, 723, 301 U.S. 206, 81 L.Ed. 1042.
ENGENDER. To cause, to bring about, to excite,
to occasion, to call forth. Lacy v. State, 30 Okl.
Cr. 273, 236 P. 53, 54.
ENGINE. This is said to be a word of very general signification; and, when used in an act, its
meaning must be sought out from the act itself,
and the language which surrounds it, and also
from other acts in pari materia, in which it occurs. Abbott, J., 6 Maule & S. 192. In a large
sense, it applies to all utensils and tools which
afford the means of carrying on a trade. But in
a more limited sense it means a thing of considerable dimensions, of a fixed or permanent nature,
analogous to an erection or building. Id. 182.
And see Lefler v. Forsberg, 1 App.D.C. 41; Brown
v. Benson, 101 Ga. 753, 29 S.E. 215.
Within Employers' Liability Law, § 1, par. 2,
subd. (a), an "engine" is an ingenious or skillful
contrivance used to effect a purpose, and is often
synonymous with the word "machine"; machinery being any combination of mechanical means
designed to work together so as to effect a given
end. Haddad v. Commercial Motor Truck Co.,
146 La. 897, 84 So. 197, 198, 9 A.L.R. 1380.
Machine by which power is applied to the doing
of work, particularly one that converts some motive energy, especially heat, into mechanical power.
Chrysler Corporation v. Trott, Cust. & Pat.App.,
83 F.2d 302, 310.
Compound Compressed Air Engine
An engine in which the compressed air is first
used in a high pressure cylinder, that is, in a
cylinder of relatively small diameter, and after
driving the piston connected therewith, instead of
being permitted to escape, is conveyed to a low
pressure cylinder, that is, to a cylinder of larger
diameter, where it still has sufficient expansive
force to drive another piston. This operation may
again be repeated in a third cylinder or the air
622
ENLARGER
able price. 4 Bl.Comm. 158, 159. This was a misdemeanor, punishable by fine and imprisonment.
Steph.Crim.Law, 95. Now repealed by 7 & 8 Vict.
c. 24. 4 Steph.Comm. 291, note.
be permitted to escape to the atmosphere. H. K.
Porter Co. v. Baldwin Locomotive Works, D.C.Pa.,
219 F. 226, 229.
ENGINEER. One who is versed in or follows as
a calling or profession any branch of engineering.
Employers' Liability Assur. Corporation v. Accident & Casualty Ins. Co. of Winterthur, Switzerland, C.C.A.Ohio, 134 F.2d 566, 569. One who manages or runs any stationary or locomotive engine;
an engine driver. Baggaley v. Aetna Ins. Co., C.
C.A.I11., 111 F.2d 134, 135.
ENHANCED. This word, taken in an unqualified
sense, is synonymous with "increased," and comprehends any increase of value, however caused or
arising. Thornburn v. Doscher, C.C.Or., 32 Fed.
812.
ENHERITANCE. L. Fr. Inheritance.
ENGINEERING. The art and science by which
mechanical properties of matter are made useful
to man hi structures and machines. Employers'
Liability Assur. Corporation v. Accident & Casualty Ins. Co. of Winterthur, Switzerland, C.C.A.
Ohio, 134 F.2d 566, 569, 146 A.L.R. 1186.
ENITIA PARS. The share of the eldest. A term
of the English law descriptive of the lot or share
chosen by the eldest of coparceners when they
make a voluntary partition. The first choice
( primer election) belongs to the eldest. Co.Litt.
166.
ENGLESHIRE. A law was made by Canute,
for the preservation of his Danes, that, when a
man was killed, the hundred or town should be
liable to be amerced, unless it could be proved
that the person killed was an Englishman. This
proof was called "Engleshire." 1 Hale, P. C. 447;
4 Bl. Comm. 195; Spelman.
ENITIA PARS
SEMPER PRIZEFERENDA EST
PROPTER PRIVILEGIUM ZETATIS. Co.Litt.
166. The part of the elder sister is always to be
preferred on account of the privilege of age.
ENJOIN. To require; command; positively direct. To require a person, by writ of injunction
from a court of equity, to perform, or to abstain or
desist from, some act. Clifford v. Stewart, 95 Me.
38, 49 A. 52; Lawrence v. Cooke, 32 Hun, 126;
Brimberg v. Hartenfeld Bag Co., 89 N.J.Eq. 425,
105 A. 68, 69.
ENGLETERRE. L. Fr. England.
ENGLISH INFORMATION. In English law. A
proceeding in the court of exchequer in matters
of revenue.
ENGLISH MARRIAGE. This phrase may refer
to the place where the marriage is solemnized, or
it may refer to the nationality and domicile of the
parties between whom it is solemnized, the place
where the union so created is to be enjoyed. 6
Prob. Div. 51.
ENJOY. To have, possess, and use with satisfaction; to occupy or have benefit of. Salway v.
Multnomah Lumber & Box Co., 134 Or. 428, 293
P. 420, 422.
ENGRAVING. The art of producing on hard
material incised or raised patterns, lines, and the
like, from which an impression or print is taken.
The term may apply to a text or script, but is
generally restricted to pictorial illustrations or
works connected with the fine arts, not including
the reproduction of pictures by means of photography. American Historical Co. v. Clark, 316
Ill.App. 309, 44 N.E.2d 761.
ENGROSS. To copy the rude draft of an instrument in a fair, large hand. To write out, in a
large, fair hand, on parchment.
In old criminal law. To buy up so much of a
commodity on the market as to obtain a monopoly
and sell again at a forced price.
ENGROSSER. One who engrosses or writes on
parchment in a large, fair hand.
One who purchases large quantities of any commodity in order to acquire a monopoly, and to
sell them again at high prices.
ENGROSSING. In English law. The getting into one's possession, or buying up, large quantities
of corn, or other dead victuals, with intent to sell
them again. The total engrossing of any other
commodity, with intent to sell it at an unreason-
ENJOYMENT. The exercise of a right; the possession and fruition of a right, privilege or incorporeal hereditament.
Comfort, consolation, contentment, ease, happiness, pleasure and satisfaction. National Surety
Co. v. Jarrett, 95 W.Va. 420, 121 S.E. 291, 295.
Adverse Enjoyment
The possession or exercise of an easement, under a claim of right against the owner of the land
out of which such easement is derived. 2 Washb.
Real Prop. 42; Cox v. Forrest, 60 Md. 79.
Quiet Enjoyment
Covenant for. See Covenant.
ENLARGE. To make larger; to increase; to extend a time limit; to grant further time. Also to
set at liberty one who has been imprisoned or in
custody.
ENLARGER L'ESTATE. A species of release
which inures by way of enlarging an estate, and
consists of a conveyance of the ulterior interest to
the particular tenant; as if there be tenant for
life or years, remainder to another in fee, and he
in remainder releases all his right to the particular tenant and his heirs, this gives him the estate
in fee. 1 Steph.Comm. 518.
623
ENLARGING
ENLARGING. Extending, or making more comprehensive; as an enlarging statute, which is a
remedial statute enlarging or extending the. common law. 1 Bl.Comm. 86, 87.
ENLISTMENT. The act of one who voluntarily
enters the military or naval service of the government, contracting to serve in a subordinate capacity. Morrissey v. Perry, 137 U.S. 157, 11 Sup.
Ct. 57, 34 L.Ed. 644; Babbitt v. U. S., 16 Ct.C1. 213.
The words "enlist" and "enlistment," in law, as in common usage, may signify either the complete fact of entering into the military service, or the first step taken by the
recruit towards th4 end. When used in the former sense,
as In statutes conferring a right to compel the military
service of enlisted men, the enlistment is not deemed completed until the man has been mustered into the service.
Tyler v. Pomeroy, 8 Allen, Mass., 480.
Enlistment does not include the entry of a person into
the military service under a commission as an officer. Hilliard v. Stewartstown, 48 N.H. 280.
Enlisted applies to a drafted man as well as a volunteer,
whose name is duly entered on the military rolls. Sheffield
v. Otis, 107 Mass. 282.
ENORMIA. In old practice and pleading. Unlawful or wrongful acts; wrongs. Et alia enormia, and other wrongs. This phrase constantly
occurs in the old writs and declarations of trespass.
ENORMOUS. Aggravated. "So enormous a
trespass." Vaughan, 115. Written "enormious,"
in some of the old books. Enormious is where a
thing is made without a rule or against law.
Brownl. pt. 2, p. 19.
ENPLEET. Anciently used for implead. Cowell.
ENQUtTE, or ENQUEST. In canon law. An
examination of witnesses, taken down in writing,
by or before an authorized judge, for the purpose
of gathering testimony to be used on a trial.
ENREGISTREMENT. In French law. Registration. A formality which consists in inscribing on
a register, specially kept for the purpose by the
government, a summary analysis of certain deeds
and documents. At the same time that such
analysis is inscribed upon the register, the clerk
places upon the deed a memorandum indicating
the date upon which it was registered, and at the
side of such memorandum an impression is made
with a stamp. Arg.Fr.Merc.Law, 558.
ENROLL. To register; to make a record; to enter on the rolls of a court; to transcribe. Ream v.
Corn., 3 Serg. & R. (Pa.) 209; Anderson v. Commonwealth, 275 Ky. 232, 121 S.W.2d 46, 47.
ENROLLED BILL. In legislative practice, a bill
which has been duly introduced, finally passed by
both houses, signed by the proper officers of each,
approved by the governor (or president) and filed
by the secretary of state. Sedgwick County
Com'rs v. Bailey, 13 Kan. 608.
ENROLLMENT. The act of putting upon a roll.
A record made. Anderson v. Commonwealth, 275
Ky. 232, 121 S.W.2d 46, 47.
In English law. The registering or entering
on the rolls of chancery, king's bench, common
pleas, or exchequer, or by the clerk of the peace
in the records of the quarter sessions, of any lawful act; as a recognizance, a deed of bargain and
sale, and the like. Jacob.
ENROLLMENT OF VESSELS. In the laws of
the United States on the subject of merchant
shipping, the recording and certification of vessels employed in coastwise or inland navigation;
as distinguished from the "registration" of vessels employed in foreign commerce. U. S. V. Leetzel, 3 Wall. 566, 18 L.Ed. 67.
ENROLLMENT RECORDS. All the testimony
and exhibits tending to establish age that were in
evidence before the Commission to the Five Civilized Tribes and the conclusions of the Commission based thereon from the date of the application for enrollment of any particular individual
up to the date of the ascertainment by the Commission as to whether the name of such person
was intended to be included upon the final roll of
the nation in which he claimed citizenship. Duncan v. Byars, 44 Okl. 538, 144 P. 1053, 1054.
ENS LEGIS. L. Lat. A creature of the law; an
artificial being, as contrasted with a natural person. Applied to corporations, considered as deriving their existence entirely from the law.
ENSCHEDULE. To insert in a list, account, or
writing.
ENSEAL. To seal. Ensealing is still used as a
formal word in conveyancing.
ENSERVER. L. Fr. To make subject to a service or servitude. Britt. c. 54.
ENSUE. To follow after; to follow in order or
train of events. Agricultural Publishers' Ass'n v.
Homestead Co., 197 Iowa, 380, 197 N.W. 314.
ENTAIL, .v. To settle or limit the succession to
real property; to create an estate tail.
ENTAIL, n. A fee abridged or limited to the issue, or certain classes of issue, instead of descending to all the heirs. 1 Washb. Real Prop. 66;
Cowell; 2 Bl.Comm. 112, note.
Entail, in legal treatises, is used to signify an estate tail,
especially with reference to the restraint which such an
estate imposes upon its owner, or, in other words, the
points wherein such an estate differs from an estate in feesimple. And this is often its popular sense; but sometimes it is, in popular language, used differently, so as to
signify a succession of life-estates, as when it is said that
"an entail ends with A.," meaning that A. is the first person who is entitled to bar or cut off the entail, being in
law the first tenant in tail. Mozley & Whiteley.
Break or Bar an Entail
To free an estate from the limitations imposed
by an entail, and permit its free disposition, anciently by means of a fine or common recovery,
but now by deed in which the tenant and next
heir join.
624
ENTERTAINMENT
Quasi Entail
An estate pur autre vie may be granted, not
only to a man and his heirs, but to a man and
the heirs of his body, which is termed a "quasi
entail;" the interest so granted not being properly an estate-tail, (for the statute De Donis applies
only where the subject of the entail is an estate
of inheritance,) but yet so far in the nature of an
estate-tail that it will go to the heir of the body
as special occupant during the life of the cestui
que vie, in the same manner as an estate of inheritance would descend, if limited to the grantee
and the heirs of his body. Wharton.
ENTAILED. Settled or limited to specified heirs,
or in tail.
ENTAILED MONEY. Money directed to be invested in realty to be entailed. 3 & 4 Wm. IV, c.
74, §§ 70, 71, 72.
ENTAILMENT. An interference with and curtailment of the ordinary rules pertaining to devolution by inheritance; a limitation and direction by which property is to descend different
from the course which it would take if the creator
of the entailment, grantor or testator, had been
content that the estate should devolve in regular
and general succession to heirs at law in the statutory order of precedence and sequence. Gardner
v. Anderson, 114 Kan. 778, 227 P. 743, 748.
ENTENCION. In old English law. The plaintiff's
count or declaration.
ENTENDMENT. The old form of intendment (q.
v.) derived directly from the French, and used to
denote the true meaning or signification of a word
or sentence; that is, the understanding or construction of law. Cowell.
ENTER. To form a constituent part, to become
a part or partaker; to impenetrate; share; with
into; as, tin enters into the composition of pewter. Bedford v. Colorado Fuel & Iron Corporation, 102 Colo. 538, 81 P.2d 752, 755.
In the law of real property. To go upon land
for the purpose of taking possession of it. In
strict usage, the entering is preliminary to the
taking possession but in common parlance the entry is now merged in the taking possession. See
Entry.
In practice. To place anything before a court,
or upon or among the records, in a formal and
regular manner, and usually in writing; as to "enter an appearance," to "enter a judgment." In
this sense the word is nearly equivalent to setting
down formally in writing, in either a full or
abridged form.
ENTERCEUR. L. Fr. A party challenging
(claiming) goods; he who has placed them in the
hands of a third person. Kelham.
ENTERING. Generally synonymous with "recording". In re Labb, D.C.N.Y., 42 F.Supp. 542,
544.
Black's Law Dictionary Revised 4th Ed.-40
ENTERING JUDGMENTS. The formal entry of
the judgment on the rolls of the court, which is
necessary before bringing an appeal or an action
on the judgment. Blatchford v. Newberry, 100
Ill. 491. The entering of judgment is a ministerial
act performed by the clerk of court by means of
which permanent evidence of judicial act in rendering judgment is made a record of the court.
Jones v. Sun Oil Co., Tex.Civ.App., 145 S.W.2d
615, 619. Under some statutes, the entering consists merely in the filing of a judgment with the
clerk; Mathison v. Anderson, 107 Wash. 617, 182
P. 622. But under other acts, the entry of a judgment consists in the recording of it in the judgment book. Wilson v. Durkee, 20 Cal.App. 492,
129 P. 617, 618.
Entry of judgment differs from rendition of
judgment. "Rendition" of a judgment is the judicial act of the court in pronouncing the sentence
of the law upon the facts in controversy. The
"entry" is a ministerial act, which consists in
spreading upon the record a statement of the final
conclusion reached by the court in the matter, thus
furnishing external and incontestable evidence of
the sentence given, and designed to stand as a
perpetual memorial of its action. Jaqua v. Harkens, 40 Ind.App. 639, 82 N.E. 920, 922; Beetchenow v. Bartholet, 162 Wash. 119, 298 P. 335,
336.
ENTERING SHORT. When bills not due are paid
into a bank by a customer, it is the custom of
some bankers not to carry the amount of the bills
directly to his credit, but to "enter them short,"
as it is called, i. e., to note down the receipt of the
bills, their amounts, and the times when they become due in a previous column of the page, and
the amounts when received are carried forward
into the usual cash column. Sometimes, instead
of entering such bills short, bankers credit the
customer directly with the amount of the bills as
cash, charging interest on any advances they may
make on their account, and allow him at once to
draw upon them to that amount. If the banker
becomes bankrupt, the property in bills entered
short does not pass to his assignees, but the customer is entitled to them if they remain in his
hands, or to their proceeds, if received, subject
to any lien the banker may have upon them.
Wharton.
ENTERPRISE. A project or undertaking. Sizemore v. Hall, 148 Kan. 233, 80 P.2d 1092, 1095. In,
Workmen's Compensation Law. A hazardous undertaking or project. Hahnemann Hospital v. Industrial Board of Illinois, 282 Ill. 316, 118 N.E. 767,
770.
ENTERTAINMENT. This word is synonymous
with "board," and includes the ordinary necessaries' of life. See Lasar v. Johnson, 125 Cal. 549,
58 P. 161. Hospitable provision for the wants of
a guest, especially a provision for the table. That
which serves as amusement. Young v. Board of
Trustees of Broadwater County High School, 90
Mont. 576, 4 P.2d 725, 726.
625
ENTHUSIASTS
ENTHUSIASTS. Those who believe far more
than they can prove and can prove far more than
any one else can believe. Peskind v. State, 115
Ohio St. 279, 152 N.E. 670.
ENTICE. To wrongfully solicit, persuade, procure, allure, attract, draw by blandishment, coax
or seduce. Nash v. Douglass, 12 Abb.Prac.N.S.,
N.Y., 190. To lure, induce, tempt, incite, or persuade a person to do a thing. Berger v. Levy, 5
Cal.App.2d 544, 43 P.2d 610, 611.
ENTIRE. Whole; without division, separation, or
diminution; unmingled; complete in all its parts;
not participated in by others. 15 Cyc. 1054; 11
Amer. & Eng. Enc. Law, 48; People v. Tahaures
Purchase, 26 N.Y.S.2d 795, 813.
ENTIRE ACT. The words "entire Act" as used
in the rule of statutory construction that it is the
duty of the court to examine the entire act means
the caption, the body of the act, and the emergency clause. Anderson v. Penix, 138 Tex. 596, 161
S.W.2d 455, 459.
ENTIRE BALANCE OF MY ESTATE. The residue. In re Taylor's Estate, 86 A. 708, 711, 239
Pa. 153; In re Brothers' Estate, 156 Pa.Super. 292,
40 A.2d 156, 157.
ENTIRE BLOOD. Relations of the "entire blood"
are those derived not only from the same ancestor, but from the same couple of ancestors. In
re Skidmore's Estate, 266 N.Y.S. 312, 148 Misc. 569.
ENTIRE CONTRACT. See Contract.
ENTIRE DAY. This phrase signifies an undivided day, not parts of two days. An entire day must
have a legal, fixed, precise time to begin, and a
fixed, precise time to end. A day, in contemplation of law, comprises all the twenty-four hours,
beginning and ending at twelve o'clock at night.
Robertson v. State, 43 Ala. 325. In a statute requiring the closing of all liquor saloons during
"the entire day of any election," etc., this phrase
means the natural day of twenty-four hours, commencing and terminating at midnight. Haines v.
State, 7 Tex.App. 30.
ENTIRE INTEREST. The whole interest or right,
without diminution. Where a person in selling his
tract of land sells also his entire interest in all
improvements upon public land adjacent thereto,
this vests in the purchaser only a quitclaim of his
interest in the improvements. McLeroy v. Duckworth, 13 La.Ann. 410.
ENTIRE LOSS OF SIGHT. In respect of one eye,
or both. Substantial blindness, not necessarily
absolute. International Travelers' Ass'n v. Rogers, Tex.Civ.App., 163 S.W. 421, 422. There was
"entire loss of sight" of eye within accident policy,
where insured could not distinguish one object
from another in the strongest light, though he
could distinguish between light and darkness.
Tracey v. Standard Acc. Ins. Co., 119 Me. 131, 109
A. 490, 494, 9 A.L.R. 521. Locomotive Engineers'
Mut. Life Accident Ins. Co. v. Meeks, 157 Miss. 57,
127 So. 699, 702. See Blind; Complete and Permanent Loss of Sight of Both Eyes.
ENTIRE STRUCTURE. Under lien statute. Not
a completed, as distinguished from an uncompleted, building, but a new structure, not before existing, as distinguished from betterments and repairs
on previously constructed improvements. Atkinson v. Colorado Title & Trust Co., 59 Colo. 528,
151 P. 457, 461.
ENTIRE TENANCY. A sole possession by one
person, called "severalty," which is contrary to
several tenancy, where a joint or common possession is in one or more.
ENTIRE USE, BENEFIT, etc. These words in
the habendum of a trust-deed for the benefit of a
married woman are equivalent to the words "sole
use," or "sole and separate use," and consequently her husband takes nothing under such deed.
Heathman v. Hall, 38 N.C. 414.
ENTIRELY WITHOUT UNDERSTANDING. Inability to comprehend nature and effect of transaction involved, not necessarily absolute imbecility,
idiocy or mental incapacity. Barlow v. Strange,
120 Ga. 1015, 1018, 48 S.E. 344.
ENTIRETY. The whole, in contradistinction to
a moiety or part only. When land is conveyed
to husband and wife, they do not take by moieties, but both are seised of the entirety. 2 Kent,
Comm. 132; 4 Kent, Comm. 362. Parceners, on
the other hand, have not an entirety of interest,
but each is properly entitled to the whole of a distinct moiety. 2 Bl.Comm. 188. See Estate by the
Entirety.
The word is also used to designate that which
the law considers as ,one whole, and not capable
of being divided into parts. Thus, a judgment,
it is held, is an entirety, and, if void as to one of
the two defendants, cannot be valid as to the other. So, if a contract is an entirety, no part of the
consideration is due until the whole has been performed.
ENTITLE. In its usual sense, to entitle is to give
a right or title. Felter v. McClure, 135 Wash. 410,
237 P. 1010, 1011. To qualify for; to furnish with
proper grounds for seeking or claiming. Fitts v.
Terminal Warehousing Corporation, 170 Tenn. 198,
93 S.W.2d 1265, 1267. In re Graves, 325 Mo. 888,
30 S.W.2d 149, 151. In ecclesiastical law. To entitle is to give a title or ordination as a minister.
ENTITY. A real being; existence. Department
of Banking v. Hedges, 136 Neb. 382, 286 N.W. 277,
281.
ENTRAILS. Intestines. "Entrails" of a calf do
not include pluck and sweetbread. Commonwealth v. Cohen, 250 Mass. 570, 146 N.E: 228, 230.
ENTRANCE. A door or gate for entering; a
gate; an opening, and perhaps a passage. Weatherby v. Travelers Indemnity Co., Tex.Civ.App.,
171 S.W.2d 540, 541.
626
ENTRY
ENTRAP. To catch, to entrap, to ensnare; hence,
to catch by artifice; to involve in difficulties or
distresses; to catch or involve in contradictions.
Roane v. State, 55 Okl.Cr. 332, 29 P.2d 990, 992.
In customs law. The entry of imported goods
at the custom house consists in submitting them
to the inspection of the revenue officers, together
with a statement or description of s'ich goods, and
the original invoices of the same, for the purpose
of estimating the duties to be paid thereon. U. S.
v. Legg, 105 F. 930, 45 C.C.A. 134.
In mining law. A place in coal mines used by
the miners and other workmen generally in going
to and from their work, through which coal is
hauled from the necks of the rooms to the foot of
the shaft; a "room" being the place in which a
miner works and from which he mines coal. Ricardo v. Central Coal & Coke Co., 100 Kan. 95, 163
P. 641, 643.
ENTRAPMENT. The act of officers or agents of
the government in inducing a person to commit
a crime not contemplated by him, for the purpose
of instituting a criminal prosecution against him.
Falden v. Commonwealth, 167 Va. 549, 189 S.E.
329, 332. Lee v. State, 66 Okl.Cr. 399, 92 P.2d 621,
623. But the mere . act of an officer in furnishing
the accused an opportunity to commit the crime,
where the criminal intent was already present in
the accused's mind, is not ordinarily entrapment.
State v. Cowling, 161 Wash. 519, 297 P. 172, 174.
ENTREATY. Beseeching, or suppliant, or prayerful in nature. In re Sloan's Estate, 7 Cal.App.2d
319, 46 P.2d 1007, 1018.
ENTREBAT. L. Fr. An intruder or interloper.
Britt. c. 114.
ENTREGA. Span. Delivery. Las Partidas, pt.
6, tit. 14, 1. 1.
ENTREPOT. A warehouse or magazine for the
deposit of goods. In France, a building or place
where goods from abroad may be deposited, and
from whence they may be withdrawn for exportation to another country, without paying a duty.
Brande; Webster.
ENTRY. The act of making or entering a record;
a setting down in writing of particulars; or that
which is entered; an item. United States v. Darby, D.C.Md., 2 F.Supp. 378, 379. Generally synonymous with "recording." In re Labb, D.C.N.Y., 42
F.Supp. 542, 544.
Passage leading into a house or other building
or to a room; a vestibule. Weatherby v. Travelers Indemnity Co., Tex.Civ.App., 171 S.W.2d 540,
541.
In commercial law. Entry denotes the act of a.
merchant, trader, or other business man in recording in his account-books the facts and circumstances of a sale, loan, or other transaction. Also
the note or record so made. Bissell v. Beckwith,
32 Conn. 517; U. S. v. Crecelius, D.C.Mo., 34 F. 30.
The books in which such memoranda are first (or
originally) inscribed are called "books of original
entry," and are prima facie evidence for certain
purposes.
In copyright law. Depositing with the register
of copyrights the printed title of a book, pamphlet,
etc., for the purpose of securing copyright on the
same. The old formula for giving notice of copyright was, "Entered according to act of congress,"
etc.
In criminal law. Entry is the unlawful making
one's way into a dwelling or other house, for the
purpose of committing a crime therein.
In cases of burglary, the least entry with the whole or
any part .of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of committing
a felony, is sufficient to complete the offense. 3 Inst. 64.
And see Walker v. State, 63 Ala. 49, 35 Am.Rep. 1. State
v. Chappell, 185 S.C. 111, 193 S.E. 924, 925.
In parliamentary law. The "entry" of a proposed constitutional amendment or of any other
document or transaction in the journal of a house
of the legislature consists in recording it in writing in such journal, and (according to most of the
authorities) at length. See Koehler v. Hill, 60
Iowa, 543, 15 N.W. 609.
In practice. Entry denotes the formal inscription upon the rolls or records of a court of a note
or minute of any of the proceedings in an action;
and it is frequently applied to the filing of a proceeding in writing, such as a notice of appearance
by a defendant, and, very generally, to the filing of
the judgment roll as a record in the office of the
court. Thomason v. Ruggles, 69 Cal. 465, 11 P. 20.
In public land laws. Under the provisions of
the land laws of the United States, the term "entry" denotes the filing at the land-office, or inscription upon its records, of the documents required to found a claim for a homestead or preemption right, and as preliminary to the issuing
of a patent for the land. Chotard v. Pope, 12
Wheat. 588, 6 L.Ed. 737; Stephens v. Terry, 178
Ky. 129, 198 S.W. 768, 771.
The word "entry," as used in the public land
laws, covers all methods by which a right to acquire title to public lands may be initiated. United States v. Northern Pac. Ry. Co., C.C.Mont., 204
F. 485, 487.
Homestead Entry
An entry under the United States land laws for
the purpose of acquiring title to a portion of the
public domain under the homestead laws, consisting of an affidavit of the claimant's right to enter,
a formal application for the land, and payment
of the money required. Whitmire v. Spears, 212
Ala. 583, 103 So. 668, 669.
Mineral Land Entry
Filing a claim to hold or purchase lands belonging to the public domain and valuable for the
minerals they contain, implying a prior discovery
of ore and the opening of a mine. U. S. v. Four
Bottles Sour Mash Whisky, D.C.Wash., 90 F. 720.
Pre-emption Entry
An entry of public lands for purchase under the
pre-emption laws, giving the entryman a pre-
627
ENTRY
ferred right to, acquire the land by virtue of his
occupation and improvement of it. Hartman v.
Warren, 76 F. 161, 22 C.C.A. 30.
Timber Culture Entry
An entry of public lands under the various acts
of congress opening portions of the public domain to settlement and to the acquisition of title
by the settlers on condition of the planting and
cultivation of timber trees. Hartman v. Warren,
76 F. 160, 22 C.C.A. 30.
In real property law. Entry is the act of going
peaceably upon a piece of land which is claimed
as one's own, but is held by another person, with
the intention and for the purpose of taking possession of it.
Entry is a remedy which the law affords to an injured
party ousted of his lands by another person who has taken
possession thereof without right. This remedy (which
must in all cases be pursued peaceably) takes place in
three only out of the five species of ouster, viz., abatement,
intrusion, and disseisin; for, as in these three cases the
original entry of the wrong-doer is unlawful, so the wrong
may be remedied by the mere entry of the former possessor. But it is otherwise upon a discontinuance or deforcement, for in these latter two cases the former possessor
cannot remedy the wrong by entry, but must do so by
action, inasmuch as the original entry being in these cases
lawful, and therefore conferring an apparent right of possession, the law will not suffer such apparent right to be
overthrown by the mere act or entry of the claimant.
Brown. Johnson v. Cobb, 29 S.C. 372, 7 S.E. 601.
Forcible Entry
See that title.
Open Entry
An entry upon real estate, for the purpose of
taking possession, which is not clandestine nor
effected by secret artifice or stratagem, and (in
some states by statute) one which is accomplished
in the presence of two witnesses. Thompson v.
Kenyon, 100 Mass. 108.
Re-Entry
The resumption of the possession of leased
premises by the landlord on the tenant's failure to
pay the stipulated rent or otherwise to keep the
conditions of the lease.
In Scotch law. The term refers to the acknowledgment of the title of the heir, etc., o be admitted by the superior.
ENTRY AD COMMUNEM LEGEM. Entry at
common law. The name of a writ of entry which
lay for a reversioner after the alienation and death
of the particular tenant for life, against him who
was in possession of the land. Brown.
ENTRY AD TERMINUM QUI PRZETERIIT. The
writ of entry ad terminum qui prceteriit lies where
a man leases land to another for a term of years,
and the tenant holds over his term. And if lands
be leased to a man for the term of another's life,
and he for whose life the lands are leased dies,
and the lessee holds over, then the lessor shall
have this writ. Termes de la Ley.
ENTRY BY COURT. Acts 1923, c. 6, amending
Acts 1921, c. 112, § 138, provides that county court
may enter upon lands and build roads and within
60 days after such entry shall petition for assessment of compensation. An "entry" within statute means the establishing of the road on, and appropriation of, the land, by a proper order of the
county court. To effect an entry under the statute
it is not necessary that the county court go upon
the lands and begin the work of construction. McGibson v. Roane County Court, 95 W.Va. 338, 121
S.E. 99, 104.
ENTRY FOR MARRIAGE IN SPEECH. A writ of
entry causa matrimonii prceloquuti lies where
lands or tenements are given to a man upon condition that he shall take the donor to be his wife
within a certain time, and he does not espouse
her within the said term, or espouses another
woman, or makes himself priest. Termes de la
Ley.
ENTRY IN CASU CONSIMILI. A writ of entry
in casu consimili lies where a tenant for life or
by the curtesy aliens in fee. Termes de la Ley.
ENTRY IN REGULAR COURSE OF BUSINESS.
A record setting forth a fact or transaction made
by one in the ordinary and usual course of one's
business, employment, office or profession, which
it was the duty of the enterer in such manner
to make, or which was commonly and regularly
made, or which it was convenient to make, in the
conduct of the business to which such entry pertains. Leonard v. State, 100 Ohio St. 456, 127 N.E.
464, 468.
ENTRY IN THE CASE PROVIDED. A writ of
entry in casu proviso lies if a tenant in dower
alien in fee, or for life, or for another's life, living the tenant in dower. Termes de la Ley.
ENTRY OF CAUSE FOR TRIAL. In English
practice. The proceeding by a plaintiff in an action who had given notice of trial, depositing
with the proper officer of the court the nisi prius
record, with the panel of jurors annexed, and
thus bringing the issue before the court for trial.
ENTRY OF JUDGMENT. See Entering Judgment.
ENTRY ON THE ROLL. In former times, the
parties to an action, personally or by their counsel, used to appear in open court and make their
mutual statements viva voce, instead of as at the
present day delivering their mutual pleadings, until they arrived at the issue or precise point in
dispute between them. During the progress of
this oral statement, a minute of the various proceedings was made on parchment by an officer of
the court appointed for that purpose. The parchment then became the record; in other words, the
official history of the suit. Long after the practice of oral pleading had fallen into disuse, it continued necessary to enter the proceedings in like
manner upon the parchment roll, and this was
called "entry on the roll," or making up the "issue
roll." But by a rule of H. T. 4 Wm. IV. the prac-
628
EPILEPSY
lease to the tenant for life enures to him in reversion; that is, it has the same effect for him as
for the tenant for life. Often written "inure."
tice of making up the issue roll was abolished;
and it was only necessary to make up the issue in
the form prescribed for the purpose by a rule of
H. T. 1853, and to deliver the same to the court
and to the opposite party. The issue which was
delivered to the court was called the "nisi prius
record;" and that was regarded as the official
history of the suit, in like manner as the issue roll
formerly was. Under the present practice, the
issue roll or nisi prius record consists of the papers delivered to the court, to facilitate the trial of
the action, these papers consisting of the pleadings
simply, with the notice of trial. Brown.
ENVELOPE. That which envelops; a wrapper;
an inclosing cover; especially, the cover or wrapper of a document, as of a letter. In re Eastman
Kodak Co., Cust. & Pat.App., 80 F.2d 270, 271, 272.
ENVOY. In international law. A public minister
of the second class, ranking next after an ambassador.
Envoys are either ordinary or extraordinary; by
custom the latter is held in greater consideration.
ENTRY WITHOUT ASSENT OF THE CHAPTER.
A writ of entry sine assensu capituli lies where an
abbot, prior, or such as hath covent or common
seal, aliens lands or tenements of the right of his
church, without the assent of the covent or chap-ter, and dies. Termes de la Ley.
ENZYME. Any one of a series of catalytic agents,
animal or vegetable, produced by living cells, effecting chemical change in absorbed or surrounding substances so as to render them fit for the
requirements of the cells. In re Reese, Cust. &
Pat.App., 143 F.2d 1021.
ENTRY, WRIT OF. In old English practice. This
was a writ made use of in a form of real action
brought to recover the possession of lands from
one who wrongfully withheld the same from the
demandant.
Its object was to regain the possession of lands of which
the demandant, or his ancestors, had been unjustly
deprived by the tenant of the freehold, or those under
whom he claimed, and hence it belonged to the possessory
division of real actions. It decided nothing with respect
to the right of property, but only restored the demandant
to that situation in which he was (or by law ought to have
been) before the dispossession committed. 3 Bl.Comm. 180.
It was usual to specify in such writs the degree or
degrees within which the writ was brought, and it was
said to be "in the per" or "in the per and cui," according
as there had been one or two descents or alienations from
the original wrongdoer. If more than two such transfers
had intervened, the writ was said to be "in the post." See
3 Bl.Comm. 181. See, further, Writ of Entry.
EO DIE. Lat. On that day; on the same day.
EO INSTANT!. Lat. At that instant; at the
very or same instant; immediately. 1 Bl.Comm.
196, 249; 2 Bl.Comm. 168; Co.Litt. 298a; 1 Coke
138. Also written eo instante.
EO INTUITU. Lat. With or in that view; with
that intent or object. Hale, Anal. § 2.
EO LOCI. Lat. In the civil law. In that state
or condition; in that place, (eo loco.) Calvin.
EO NOMINE. Lat. Under that name; by that
appellation. Perinde ac si eo nomine tibi tradita
fuisset, just as if it had been delivered to you by
that name. Inst. 2, 1, 43. A common phrase in
the books.
ENTRYMAN. One who makes an entry of land
under the public land laws of the United States.
Indian Cove Irr. Dist. v. Prideaux, 25 Idaho 112,
136 P. 618, 620, Ann.Cas.1916A, 1218.
EODEM LIGAMINE QUO LIGATUM EST DISSOLVITUR. A bond is released by the same formalities with which it is contracted. Co.Litt.
212b; Broom, Max. 891.
ENUMERATED. This term is often used in law
as equivalent to "mentioned specifically," "designated," or "expressly named or granted"; as in
speaking of "enumerated" governmental powers,
items of property, or articles in a tariff schedule.
See Bloomer v. Todd, 3 Wash.T. 599, 19 P. 135, 1
L.R.A. 111.
EODEM MODO QUO QUID CONSTITUITUR, DISSOLVITUR. In the manner in which [by the
same means by which] a thing is constituted, is.
it dissolved. 6 Coke, 53b.
ENUMERATIO INFIRMAT REGULAM IN CASIBUS NON ENUMERATIS. Enumeration disaffirms the rule in cases not enumerated. Bac.Aph.
17.
ENUMERATIO UNIUS EST EXCLUSIO ALTERIUS. The specification of one thing is the exclusion of a different thing. A maxim more generally expressed in the form "expressio unius est
EORLE. In Saxon law. An earl.
EOTH. In Saxon law. An oath.
EPICYCLOIDAL CURVE. A curve generated by
the motion of a point on the circumference of a
circle which rolls upon the convex side of a fixed
circle. Hill v. Hill, Cust. & Pat.App., 54 F.2d 950,
952.
ENUMERATORS. Persons appointed to collect
census papers or schedules. 33 & 34 Viet. c. 108,
§ 4.
EPIDEMIC. This term, in its ordinary and popular meaning, applies to any disease which is widely spread or generally prevailing at a given place
and time. Bethlehem Steel Co. v. Industrial Accident Commission, 21 Ca1.2d 742, 135 P.2d 153, 157;
Martin v. Springfield City Water Co., Mo.App., 128
S.W.2d 674, 679.
ENURE. To operate or take effect. To serve to
the use, benefit, or advantage of a person. A re,
EPILEPSY. In medical jurisprudence. A disease
of the brain, which occurs in paroxysms with un-
exclusio alterius," (q. v.).
629
EPILEPSY
certain intervals between them. Vulgarly called
"fits." Westphall v. Metropolitan Life Ins. Co., 27
Cal.App. 734, 151 P. 159, 182; Morse v. Caldwell,
55 Ga.App. 804, 191 S.E. 479, 485.
of the law according to the circumstances of the
time, place, and person."
EPISCOPACY. The office of overlooking or overseeing; the office of a bishop, who is to overlook
and oversee the concerns of the church. A form
of church government by diocesan bishops. Trustees of Diocese of Central New York v. Colgrove, 4
Hun (N.Y.) 366.
The disease is generally organic, though it may be functional and symptomatic of irritation in other parts of the
body. The attack is characterized by loss of consciousness,
sudden falling down, distortion of the eyes and face, grinding or gnashing of the teeth, stertorous respiration, and
more or less severe muscular spasms or convulsions. Epilepsy, though a disease of the brain, is not to be regarded
as a form of insanity, in the sense that a person thus
afflicted can be said to be permanently insane, for there
may be little or no mental aberration in the intervals
between the attacks. But the paroxysm is frequently followed by a temporary insanity, varying in particular
instances from slight alienation to the most violent mania.
In the latter form the affection is known as "epileptic
fury." But this generally passes off within a few days.
But the course of the principal disease is generally one of
deterioration, the brain being gradually more and more
deranged in its functions in the intervals of attack, and
the memory and intellectual powers in general becoming
enfeebled, leading to a greatly impaired state of mental
efficiency, or to dementia, or a condition bordering on
i mbecility. See Aurentz v. Anderson, 3 Pittsb.R., Pa., 310;
Lawton v. Sun Mutual Ins. Co., 2 Cush., Mass., 517.
EPISCOPALIA. In ecclesiastical law. Synodals,
pentecostals, and other customary payments from
the clergy to their diocesan bishop, formerly collected by the rural deans. Cowell.
EPISCOPALIAN. Of or pertaining to episcopacy,
or to the Episcopal Church.
EPISCOPATE. A bishopric. The dignity or office
of a bishop.
EPISCOPORUM ECDICUS. Bishop's proctors;
church lawyers. 1 Reeve, Eng.Law, 65.
Hystero-epilepsy. A condition initiated by an apparently mild attack of convulsive hysteria, followed by an epileptiform convulsion, and succeeded by a period of "clownism" (Osler) in which
the patient assumes a remarkable series of droll
contortions or cataleptic poses, sometimes simulating attitudes expressive of various passions, as,
fear, joy, erotism, etc. The final stage is one of
delirium with unusual hallucinations. The attack
differs from true epilepsy in that the convulsions
may continue without serious result for several
successive days, while true epilepsy, if persistent,
is always serious, associated with fever, and frequently fatal.
EPISCOPUS. In the civil law. An overseer; an
inspector. A municipal officer who had the charge
and oversight of the bread and other provisions
which served the citizens for their daily food.
Vicat. In medieval history. A bishop; a bishop of
the Christian church.
EPISCOPUS ALTERIUS MANDATO QUAM REGIS NON TENETUR OBTEMPERARE. Co.Litt.
134. A bishop needs not obey any mandate save
the king's.
EPISCOPUS PUERORUM. It was an old custom
that upon certain feasts some lay person should
plait his hair, and put on the garments of a bishop,
and in them pretend to exercise episcopal jurisdiction, and do several ludicrous actions, for which
reason he was called "bishop of the boys;" and
this custom obtained in England long after several
constitutions were made to abolish it. Blount.
EPIMENIA. Expenses or gifts. Blount.
EPIPHANY. A Christian festival, otherwise
called the "Manifestation of Christ to the Gentiles," observed on the 6th of January, in honor of
the appearance of the star to the three magi, or
wise men, who came to adore the Messiah, and
bring him presents. It is commonly called
"Twelfth Day." Enc.Lond.
EPISCOPUS TENEAT PLACITUM, IN CURIA
CHRISTIANITATIS, DE IIS QUA MERE SUNT
SPIRITUALIA. 12 Coke, 44. A bishop may hold
plea in a Court Christian of things merely spiritual.
EPIPHYSEITIS. Inflammation of an epiphysis—
a process of bone attached for a time to another
bone by cartilage. Eckenroad v. Rochester &
Pittsburgh Coal Co., 149 Pa.Super. 257, 27 A.2d 759,
761.
EPISTOLA. A letter; a charter; an instrument
in writing for conveyance of lands or assurance of
contracts. Calvin.; Spelman.
EPIPHYSEAL SEPARATION. Not a bone fracture in true sense, but a separation of the fibers
and cartilaginous tissues which attach the epiphysis to the femur. Eisen v. State Farmers Mut.
Ins. Co., 219 Minn. 315, 17 N.W.2d 652, 655.
EPIPHYSIS. Part or process of a bone which ossifies separately and subsequently becomes ankylosed (to grow together into one) into the main
part of the bone. Eisen v. State Farmers Mut.
Ins. Co., 219 Minn. 315, 17 N.W.2d 652, 655.
EPISTOLIE. In the civil law. Rescripts; opinions given by the emperors in cases submitted to
them for decision.
Answers of the emperors to petitions.
The answers of counsellors, (juris-consulti,) as
Ulpian and others, to questions of law proposed
to them, were also called "epistolce."
Opinions written out. The term originally signified the same as literce. Vicat.
EPIQUEYA. In Spanish law. A term synonymous with "equity" in one of its senses, and defined as "the benignant and prudent interpretation
EPOCH. The time at which a new computation is
begun; the time whence dates are numbered. Enc.
Lond.
630
EQUIPMENT
EQUAL. Alike; uniform; on the same plane or
level with respect to efficiency, worth, value,
amount, or rights. People v. Hoffman, 116 Ill.
587, 5 N.E. 600, 56 Am.Rep. 793.
Standard. The process of equalizing assessments
or taxes, as performed by "boards of erualization"
in various states, consists in comparing the assessments made by the local officers of the various
counties or other taxing districts within the jurisdiction of the board and reducing them to a
common and uniform basis, increasing or diminishing by such percentage as may be necessary, so as
to bring about, within the entire territory affected,
a uniform and equal ratio between the assessed
value and the actual cash value of property. The
term is also applied to a similar process of leveling
or adjusting the assessments of individual taxpayers, so that the property of one shall not be assessed at a higher (or lower) percentage of its
market value than the property of another. See
Harney v. Mitchell County, 44 Iowa 203.
EQUAL AND UNIFORM TAXATION. Taxes are
said to be "equal and uniform" when no person or
class of persons in the taxing district, whether it
be a state, county, or city, is taxed at a different
rate than are other persons in the same district
upon the same value or the same thing, and where
the objects of taxation are the same, by whomsoever owned or whatsoever they may be. Weatherly Independent School Dist. v. Hughes, Tex.Civ.
App., 41 S.W.2d 445, 447.
EQUAL DEGREE. Persons are said to be related
to a decedent "in equal degree" when they are all
removed by an equal number of steps or degrees.
from the common ancestor. Fidler v. Higgins, 21
N.J.Eq. 162; Helmes v. Elliott, 14 S.W. 930, 89
Tenn. 446, 10 L.R.A. 535.
EQUALIZE. To make equal, to cause to correspond, or be like in amount or degree, as compared with something. Los Angeles County v.
Ransohoff, 24 Cal.App.2d 238, 74 P.2d 828, 830;
De Mille v. Los Angeles County, Cal.App., 77 P.2d
905, 906.
EQUAL ELECTION. Elections are "equaf," when
vote of each voter is equal in its influence upon
result to vote of every other elector. Blue v.
State ex rel. Brown, 206 Ind. 98, 188 N.E. 583, 589,
91 A.L.R. 334.
EQUAL PROTECTION OF THE LAWS. The
equal protection of the laws of a state is extended
to persons within its jurisdiction, within the meaning of the constitutional requirement, when its
courts are open to them on the same conditions as
to others, with like rules of evidence and modes
of procedure, for the security of their persons and
property, the prevention and redress of wrongs,
and the enforcement of contracts; when they are
subjected to no restrictions in the acquisition of
property, the -enjoyment of personal liberty, and
the pursuit -of happiness, which do not generally
affect others; when they are liable to no other or
greater burdens and charges than such as are laid
upon others; and when no different or greater
punishment is enforced against them for a violation of the laws. State v. Montgomery, 94 Me.
192, 47 A. 165.
"Equal protection of the law" means that equal protection and security shall be given to all under like circumstances in his life, his liberty, and his property, and in the
pursuit of happiness, and in the exemption from any
greater burdens and charges than are equally imposed
upon all others under like circumstances. Sovereign Camp,
W. 0. W., v. Casodos, D.C.N.M., 21 F.Supp. 989, 994.
EQUAL WATCHES. Under statute requiring division of sailors at sea into equal watches, "equal
watches" means successive and continuous watches to be constituted in numbers as nearly equal as
the sum of the whole number will permit. New
York & Cuba Mail S. S. Co. v. Continental Ins. Co.
of City of New York, C.C.A.N.Y., 117 F.2d 404, 409.
EQUALITY. The condition of possessing substantially the same rights, privileges, and immunities, and being liable to substantially the same duties. Louisville & N. R. Co. v. Commonwealth,
160 Ky. 769, 170 S.W. 162, Ann.Cas.1916A, 405.
EQUALIZATION. The act or process of making
equal or bringing about conformity to a common
EQUALLY DIVIDED. Provision in will that property shall be "equally divided," or divided "share
and share alike" means that the property shall be
divided per capita and not per stirpes. However,
these phrases may be so modified by other parts
of the will as to require distribution per stirpes.
In re Mays' Estate, 197 Mo.App. 555, 196 S.W.
1039, 1040.
EQUERRY. An officer of state under the master
of the horse.
EWES. Lat. In Roman and old English law. A
knight.
EQUILIBRIUM. As applied in chemistry, the balanced state reached when the action apparently
stops in a chemical reaction, that is, the concentration between reaction products and the original
reacting substances has become such that decomposition and recombination proceeds with equal
speed. In re Sussman, 141 F.2d 267, 271, 31 C.C.
P.A.(Patents) 921.
EQUILOCUS. An equal. It is mentioned in Simeon Dunelm, A.D. 882. Jacob.
EQUINOXES. The two periods of the year (vernal equinox about March 21st, and autumnal equinox about September 22d) when the time from the
rising of the sun to its setting is equal to the time
from its setting to its rising. See Dig. 43, 13,
1, 8.
EQUIP. To furnish for service or against a need
or exigency; to fit out; to supply with whatever
is necessary to efficient action in any way. Synonymous with furnish. State ex rel. Davis v. Barber, 139 Fla. 706, 190 So. 809.
EQUIPMENT. Furnishings, or outfit for the required purposes. An exceedingly elastic term,
the meaning of which depends on context. Elliott
v. Payne, 293 Mo. 581, 239 S.W. 851, 852, 23 A.L.R.
706; Midland Special School Dist. of Sebastian
631
EQUIPMENT
County, Ark., v. Central Trust Co. of Illinois, C.C.
A.Ark., 1 F.2d 124, 126.
Whatever is needed in equipping; the articles
comprised in an outfit; equippage. Department
of Treasury, Gross Income Tax Division, v. Ranger-Cook, Inc., Ind.App., 49 N.E.2d 548, 550. Farm
& Home Saving & Loan Ass'n of Missouri v. Empire Furniture Co., Tex.Civ.App., 87 S.W.2d 1111,
1112. Nearly synonymous with "instrumentality."
Nekoosa-Edwards Paper Co. v. Minneapolis St.
P. & S. S. M. Ry. Co., 217 Wis. 426, 259 N.W. 618,
but not synonymous with "maintenance". Neal
v. City of Morrilton, 192 Ark. 450, 92 S.W.2d
208, 209.
EQUITABLE. Just; conformable to the principles
of justice and right.
Just, fair, and right, in consideration of the
facts and circumstances of the individual case.
Existing in equity; available or sustainable only
in equity, or only upon the rules and principles
of equity.
As to "Fair and Equitable Value," see that title.
As to equitable "Assets," "Construction," "Conversion," "Easement," "Ej ectment," "Estate," "Garnishment," "Levy," "Mortgage," "Title," and
"Waste." see those titles.
EQUITABLE ACTION. One founded on an equity
or cognizable in a court of equity; or, more specifically, an action arising, not immediately from
the contract in suit, but from an equity in favor
of a third person, not a party to it, but for whose
benefit certain stipulations or promises were made.
Wenzel & Henoch Const. Co. v. Metropolitan Water
Dist. of Southern California, D.C.Cal., 18 F.Supp.
616, 620.
EQUITABLE ASSIGNMENT. An assignment
which, though invalid at law, will be recognized
and enforced in equity; e. g., an assignment of a
chose in action, or of future acquisitions of the assignor. Lewis v. Braun, 356 Ill. 467, 191 N.E. 56,
60; Stewart v. Kane, Mo.App., 111 S.W.2d 971,
974.
In order to work an "equitable assignment",
there must be an absolute appropriation by the
assignor of the debt or fund sought to be assigned.
Blount v. Metropolitan Life Ins. Co., 192 Ga. 325,
15 S.E.2d 413, 415; Sneesby v. Livington, 182 Wash.
229, 46 P.2d 733, 735.
EQUITABLE CONVERSION. A fiction which results in treating land as personalty and personalty
as land under certain circumstances. It takes
place when a contract for sale of realty becomes
binding on parties. Shay v. Penrose, 185 N.E.2d
218, 219, 25 Ill.2d 447; Panushka v. Panushka, 349
P.2d 450, 452, 221 Or. 145; Parr-Richmond Indus.
Corp. v. Boyd, 272 P.2d 16, 22, 43 C.2d 157.
EQUITABLE DEFENSE. A defense to an action
on grounds which, prior to the passing of the Common Law Procedure Act (17 and 18 Vict. c. 125),
would have been cognizable only in a court of eq-
uity. Moz. & W. In American practice, a defense which is cognizable in a court of equity, but
which is available there only, and not in an action
at law, except under the reformed codes of practice. Kelly v. Hurt, 74 Mo. 561-570; City of New
York v. Holzderber, 90 N.Y.S. 63, 44 Misc. 509.
The codes of procedure and the practice in some of
the states likewise permit both a legal and equitable defense to the same action. Susquehanna
S. S. Co. v. A. 0. Andersen & Co., 239 N.Y. 285, 146
N.E. 381, 383. It has also been construed to mean
a defense which a court of equity would recognize,
or one founded on some distinct ground of equitable jurisdiction. City of New York v. Holzderber, 44 Misc. 509, 90 N.Y.S. 63, 64.
EQUITABLE DOCTRINE OF APPROXIMATION.
This doctrine differs from "Cy pres doctrine" in
purpose and application. The last mentioned doctrine applies where an apparent charitable intention has failed, whether by an incomplete disposition at the outset or by subsequent inadequacy of
the original object, and its purpose is to give a cy
pres or proximate application to testator's intention, whereas the "equitable doctrine of approximation" merely authorizes a court of chancery to
vary the details of administration, in order to preserve the trust, and carry out the general purpose
of the donor. National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649, 654.
EQUITABLE ELECTION. The choice to be made
by a person who may, under a will or other instrument, have either one of two alternative rights or
benefits, but not both. Peters v. Bain, 133 U.S. 670,
10 S.Ct. 354, 33 L.Ed. 696.
The obligation imposed upon a party to choose
between two inconsistent or alternative rights or
claims, in cases where there is clear intention of
the person from whom he derives one that he
should not enjoy both. 2 Story, Eq.Jur. § 1075;
Dakan v. Dakan, 83 S.W.2d 620, 624, 125 Tex. 305.
A choice shown by an overt act between two
inconsistent rights, either of which may be asserted at the will of the chooser alone. Bierce v.
Hutchins, 205 U.S. 346, 27 S.Ct. 524, 51 L.Ed. 828;
Macbeth-Evans Glass Co. v. General Electric Co.,
C.C.A.Ohio, 246 F. 695, 701; Jenkins v. U. S., D.C.
R.I., 22 F.2d 568, 571.
EQUITABLE ESTOPPEL is that condition in
which justice forbids one to gainsay his own acts
or assertions. Goodwin Tile & Brick Co. v. DeVries, Iowa, 13 N.W.2d 310, 312, 155 A.L.R. 346.
The preclusion of person by his act or conduct
or silence from asserting rights which might otherwise have existed. Marshall v. Wilson, Or., 154
P.2d 547, 551. The species of estoppel which equity
puts upon a person who has made a false representation or a concealment of material facts, with
knowledge of the facts, to a party ignorant of the
truth of the matter, with the intention that the
other party should act upon it, and with the result
that such party is actually induced to act upon it,
to his damage. Bigelow, Estop. 484.
See, also, In Pais, Estoppel In.
632
EQUITABLE RULt
Elements or essentials of such estoppel include change
of position for the worse by party asserting estoppel, Malone v. Republic Nat. Bank & Trust Co., Tex.Civ.App., 70
S.W.2d 809, 812; Clover v. Peterson, 203 Minn. 337, 281 N.
W. 275, 278; conduct by party estopped such that it would
be contrary to equity and good conscience for him to allege and prove the truth, Rody v. Doyle, 181 Md. 195, 29
A.2d 290, 293; false representation or concealment of
facts, Clark v. National Aid Life Ass'n, 177 Okl. 137, 57
P.2d 832, 833; Antrim Lumber Co. v. Wagner, 175 Okl.
564, 54 P.2d 173, 176; ignorance of party asserting estoppel
of facts and absence of opportunity to ascertain them,
Trenton Banking Co. v. Howard, N.J.Ch., 187 A. 569, 574;
Fipps v. Stidham, 174 Old. 473, 50 P.2d 680, 684; injury
from declarations, acts, or omissions of party were he
permitted to gainsay their truth, Fleishbein v. Western
Auto Supply Agency, 19 Cal.App.2d 424, 65 P.2d 928; Roberts v. Friedell, 218 Minn. 88, 15 N.W.2d 496, 500; intention that representation should be acted on, Stookesberry
v. Burgher, 220 Iowa 916, 262 N.W. 820; Consolidated Cut
Stone Co. v. Seidenbach, 181 Okl. 578, 75 P.2d 442, 452;
knowledge, actual or constructive, of facts by party estopped, Antrim Lumber Co. v. Wagner, 175 Okl. 364, 54 P.2d
173, 176; Lillywhite v. Coleman, 46 Ariz. 523, 52 P.2d 1157,
1160; misleading person to his prejudice, United States,
for Use and Benefit of Noland Co., v. Wood, C.C.A.Va.,
99 F.2d 80, 82; omission, misconduct or misrepresentation
misleading another, Security Savings & Trust Co. v. Portland Flour Mills Co., 124 Or. 276, 261 P. 432, 437; reliance
upon representation or conduct of person sought to be estopped, Wilkinson v. Lieberman, 327 Mo. 420, 37 S.W.2d
533, 536, George W. Armbruster, Jr., Inc., v. City of Wildwood, D.C.N.J., 41 F.2d 823, 829.
Estoppel in pais and equitable estoppel are convertible
terms, Brown v. Corn Exchange Nat. Bank & Trust Co.,
42 A.2d 474, 480, 136 N.J.Eq. 430; State ex rel. Squire v.
Murfey, Blossom & Co., 131 Ohio St. 289, 2 N.E.2d 866, 870.
"Legal estoppel" excludes evidence of the truth and the
equity of the particular case to support a strict rule of law
on grounds of public policy whereas "equitable estoppel"
is admitted on exactly the opposite ground of promoting
the equity and justice of the individual case by preventing
a party from asserting his rights under a general technical
rule of law, when he has so conducted himself that it
would be contrary to equity and good conscience for . him to
allege and prove the truth. First Nat. Bank v. Boles, 231
Ala. 473, 165 So. 586, 592.
.
Such estoppel may be based on acts, omission to act, representations, admissions, concealment or silence, Carter v.
Curlew Creamery Co., 16 Wash.2d 476, 134 P.2d 66; West v.
Cleveland Ry. Co., Ohio App., 58 N.E.2d 799, 801; Mahoney v. Mahoney, Tex.Civ.App., 103 S.W.2d 459, 462.
EQUITABLE EXECUTION. This term is sometimes applied to the appointment of a receiver with
power of sale. Hatch v. Van Dervoort, 54 N.J.
Eq. 511, 34 A. 938.
Though a garnishment is not an "execution," garnishment after execution is practically an equitable "execution" brought for purpose of reaching nonleviable assets,
issuing on judgment in somewhat same manner as an
"execution" and in immediate aid or in lieu thereof.
First Nat. Bank v. City Guaranty Bank of Hobart, 174 Okl.
545, 51 P.2d 573, 576.
EQUITABLE LIENS are such as exist in equity.
An equitable lien arises either from a written contract
which shows an intention to charge some particular property with a debt or obligation or is implied and declared
by a court of equity out of general considerations of right
and justice as applied to relations of the parties and circumstances of their dealings, Owensboro Banking Co. v.
Lewis, 269 Ky. 277, 106 S.W.2d 1000, 1004; Clark v. Armstrong & Murphy, 180 Okl. 514, 72 P.2d 362, 365, 366; It is
a mere floating and ineffective equity until such time as
judgment or decree is rendered actually subjecting property to the payment of the debt or claim, Langford v.
Fanning, Mo., 7 S.W.2d 726, 728; Nelson v. Nelson Neal
Lumber Co., 171 Wash. 55, 17 P.2d 626, 628, 92 A.L.R. 554.
It is founded upon an agreement indicating intention that
some specific property is to be held, given, or transferred
as security, In re Friedlander's Estate, 32 N.Y.S.2d 991,
994, 995, 178 Misc. 65. It is neither a jus in re nor jus ad
rem, Folsom v. Farmers' Bank of Vero Beach, 136 So. 524,
527, 102 Fla. 899; Clements v. Holmes, 22 Tenn.App. 230,
120 S.W.2d 988, 993; It is not an estate or property in the
thing itself or a right to recover the same. Foster v.
Thornton, 179 So. 882, 892; Jamison Coal & Coke Co. v.
Goltra, C.C.A.Mo., 143 F.2d 889, 893, 154 A.L.R. 1191; it
more properly constitutes a charge upon the thing. Equitable liens most commonly grow out of constructive
trusts. Story, Eq.Jur. § 1215; Jones v. Carpenter, 90 Fla.
407, 106 So. 127, 129, 43 A.L.R. 1409; Aldrich v. R. J.
Ederer Co., 302 Iii. 391, 134 N.E.•726, 728.
It is right by which a creditor is entitled to obtain satisfaction of his debt by resort to specified property belonging to debtor, Pincus v. Collins, 198 Miss. 283, 22 So.2d
361, 362; right of a special nature over property constituting a charge or incumbrance thereon. Miller v. Heisler,
Mo.App., 187 S.W.2d 485, 491; Gables Racing Assoc. v.
Persky, 148 Fla. 627, 6 So.2d 257, 262, 263; right, not recognized at law, to have a fund or specific property, or the
proceeds, applied in whole or in part to payment of a
particular debt or class of debts or obligation, Bank of
Aurora v. Aurora Co-Op. Fruit Growing & Marketing Ass'n,
Mo.App., 91 S.W.2d 177; Jamison Coal & Coke Co. v.
Goltra, C.C.A.Mo., 143 F.2d 889, 893, 154 A.L.R. 1191; Shipley v. Metropolitan Life Ins. Co., 25 Tenn.App. 452, 158 S.
W.2d 739, 741; right over subject-matter of contract, whereby obligee is enabled to follow identical thing to which lien
attaches and enforce obligation by remedy operating directly thereon, Bassett v. City Bank & Trust Co., 116 Conn.
617, 165 A. 557; right to have property subjected in court
of equity to payment of a claim, Theatre Realty Co. v.
Aronberg-Fried Co., C.C.A.Mo., 85 F.2d 383, 388; right to
proceed in an equitable action against the subject-matter
of the lien and have it sold or sequestered and its proceeds
or rents and profits applied to the demand of the owner
of the lien, Oppenheimer v. Szulerecki, 297 Ill. 81, 130 N.E.
325, 328, 28 A.L.R. 1439.
The equitable lien differs essentially from a common-law
lien, in that in the equitable lien, possession remains with
the debtor or person who holds the proprietary interest.
Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 129, 43 A.L.R.
1409.
Every express executory agreement in writing, whereby
the contracting party sufficiently indicates an intention
to make some particular property, real or personal, or fund
therein identified, a security for a debt or other obligation,
or whereby the party promises to convey, assign, or
transfer the property as security, creates an equitable lien
upon the property so indicated, which is enforceable
Co.,
against the property. Knott v. Mfg. Co.
30 W.Va. 790, 5
C.C.A.Minn.,
S.E. 266; Geddes v. Reeves Coal & Dock
20 F.2d 48, 50, 54 A.L.R. 282; Root Mfg. Co. v. Johnson,
C.C.A.Ind., 219 F. 397, 406.
EQUITABLE RATE OF INTEREST. In England,
the interest, generally at a lower rate than legal,
charged against a trustee or executor improperly
or unnecessarily keeping balances or portion of
trust moneys in his hands. In re Ricker's Estate,
14 Mont. 153, 35 P. 960, 968, 29 L.R.A. 622.
EQUITABLE RECOUPMENT. Rule of the law
which diminishes the right of a party invoking
legal process to recover a debt, to the extent that
he holds money or property of his debtor, to which
he has no moral right, and it is ordinarily a defensive remedy going only to mitigation of damages. Electric Storage Battery Co. v. Rothensies,
D.C.Pa., 57 F.Supp. 731, 735.
EQUITABLE RESCISSION. Rescission decreed
by court of equity, as distinguished from "legal
rescission" which is effected by restoration or
offer to restore. Mueller v. Michels, 184 Wis. 324,
199 N.W. 380, 382. ■
EQUITABLE RULE. In broad sense in which
term is sometimes used, signifies natural justice. In re New Jersey State Bar Ass'n, 111 N.J.
Eq. 234, 162 A. 99, 101.
633
EQUITAS
EQUITAS SEQUITUR LEGEM. Equity follows
the law. Tallman v. Varick, 5 Barb. (N.Y.) 277,
282. Cas temp. Talb. 52; 1 Sto.Eq.Jur. § 64.
In respect of this maxim it has been said: "Operative only within a very narrow range." 1
Pom.Eq.Jur. § 427. The reverse is quite as sound
a maxim; 9 Harv.L.Rev. 18. "The main business
of equity is avowedly to correct and supplement
the law." Phelps, Jurid.Eq. § 237. The English
Judicature Act, 1873, provides that when law and
equity conflict equity shall prevail. See Equity
Follows the Law.
EQUITATURA. In old English law. Traveling
furniture, or riding equipments, including horses,
horse harness, etc. Reg.Orig. 100b; St.Westm. 2,
c. 39.
EQUITY. In its broadest and most general signification, this term denotes the spirit and the habit of fairness, justness, and right dealing which
would regulate the intercourse of men with men,
—the rule of doing to all others as we desire them
to do to us; or, as it is expressed by Justinian,
"to live honestly, to harm nobody, to render to
every man his due." Inst. 1, 1, 3. It is therefore
the synonym of natural right or justice. But in
this sense its obligation is ethical rather than jural, and its discussion belongs to the sphere of morals. It is grounded in the precepts of the conscience, not in any sanction of positive law.
In a restricted sense, the word denotes equal
and impartial justice as between two persons
whose rights or claims are 'in conflict; justice,
that is, as ascertained by natural reason or ethical insight, but independent of the formulated body
of law. This is not a technical meaning of the
term, except in so far as courts which administer
equity seek to discover it by the agencies above
mentioned, or apply it beyond the strict lines of
positive law. See Miller v. Kenniston, 86 Me. 550,
30 A. 114.
In a still more restricted sense, it is a system
of jurisprudence, or branch of remedial justice,
administered by certain tribunals, distinct from
the common-law courts and empowered to decree
"equity" in the sense last above given. Here it
becomes a complex of well-settled and well-understood rules, principles, and precedents. Isabelle
Properties v. Edelman, 297 N.Y.S. 572, 574, 164
Misc. 192.
"The meaning of the word 'equity,' as used in its technical sense in English jurisprudence, comes back to this :
that it is simply a term descriptive of a certain field of
jurisdiction exercised, in the English system, by certain
courts, and of which the extent and boundaries are not
marked by lines founded upon principle so much as by the
features of the original constitution of the English scheme
of remedial law, and the accidents' of its development."
Bisp.Eq. § 11.
A system of jurisprudence collateral to, and in some respects independent of, "law," properly so called; the object of which is to render the administration of justice
more complete, by affording relief where the courts of law
are incompetent to give it, or to give it with effect, or by
exercising certain branches of jurisdiction independently of
them. This is equity in its proper modern sense; an elaborate system of rules and process, administered in many
cases by distinct tribunals, (termed "courts of chancery,")
and with exclusive jurisdiction over certain subjects. It
is "still distinguished by Its original and animating principle that no right should be without an adequate remedy,"
and its doctrines are founded upon the same basis of natural justice; but its action has become systematized, deprived of any loose and arbitrary character which might
once have belonged to it, and as carefully regulated by
fixed rules and precedents as the law itself. Burrill.
Equity, in its technical and scientific legal use, means
neither natural justice nor even all that portion of natural
justice which is susceptible of being judicially enforced. It
has a precise, limited, and definite signification, and is used
to denote a system of justice which was administered in
a particular court,-the English high court of chancery,which system can only be understood and explained by
studying the history of that court, and how it came to exercise what is known as its extraordinary jurisdiction.
Bisp.Eq. § 1.
That part of the law which, having power to enforce discovery, (1) administers trusts, mortgages, and other fiduciary obligations; (2) administers and adjusts common-law
rights where the courts of common law have no machinery;
(3) supplies a specific and preventive remedy for commonlaw wrongs where courts of common law only give subsequent damages. Chute, Eq. 4.
Equity is a body of jurisprudence, or field of
jurisdiction, differing in its origin, theory, and
methods from the common law. Laird v. Union
Traction Co., .208 Pa. 574, 57 A. 987.
It is a body of rules existing by the side of the original
civil law, founded on distinct principles, and claiming incidentally to supersede the civil law in virtue of a superior
sanctity inherent in those principles. Maine, Anc. Law, 27.
"As old rules become too narrow, or are felt to be out of
harmony with advancing civilization, a machinery is needed for their gradual enlargement and adaption to new
views of society. One mode of accomplishing this object
on a large scale, without appearing to disregard existing
law, is the introduction, by the prerogative of some high
functionary, of a more perfect body of rules, discoverable
in his judicial conscience, which is to stand side by side
with the law of the land, overriding it in case of conflict,
as on some title of inherent superiority, but not purporting to repeal it. Such a body of rules has been called
'Equity.' " Holl.Jur. 59.
"Equity," in Its technical sense, contradistinguished
from natural, and universal equity or justice, may well be
described as a "portion of justice" or natural equity, not
embodied in legislative enactments, or in the rules of common law, yet modified by a due regard thereto and to the
complex relations and conveniences of an artificial state of
society, and administered in regard to cases where the
particular rights, in respect of which relief is sought come
within some general class of rights enforced at law, or may
be enforced without detriment or inconvenience to the community; but where, as to such particular rights, the ordinary courts of law cannot, or originally did not, clearly
afford relief. Rob. Eq.
The remaining interest belonging to one who
has pledged or mortgaged his property, or the surplus of value which may remain after the property has been disposed of for the satisfaction of
liens. The amount or value of a property above
the total liens or charges. Des Moines Joint
Stock Land Bank of Des Moines v. Allen, 220 Iowa
448, 261 N.W. 912.
"Chancery" is synonymous and interchangeable with "equity." Const. art. 4, § 6. Ireland
v. Cheney, 129 Ohio St. 527, 196 N.E. 267, 270.
Equitable Right
Equity also signifies an equitable right, i.
a
right enforceable in a court of equity; hence, a
bill of complaint which did not show that the
plaintiff had a right entitling him to relief was
said to be demurrable for want of equity; and
634
EQUITY OF A STATUTE
See 1 Bl.Comm. 92; Dowell v. Goodwin, 22 R.I.
287, 27 A. 693, 695, 51 L.R.A. 873, 84 Am.St.Rep.
842.
certain rights now recognized in all the courts
are still known as "equities," from having been
originally recognized only in the court of chancery. Sweet.
EQUITY DELIGHTS TO DO JUSTICE, AND
THAT NOT BY HALVES. Tallman v. Varick, 5
Barb. (N.Y.) 277, 280; Story, Eq.P1. § 72.
Better Equity
The right which, in a court of equity, a second
incumbrancer has who has taken securities
against subsequent dealings to his prejudice,
which a prior incumbrancer neglected to take although he had an opportunity. 1 Ch.Prec. 470,
note. See 3 Bouv.Inst. note 2462.
EQUITY FOLLOWS THE LAW. Talb. 52. Equity
adopts and follows the rules of law in all cases
to which those rules may, in terms, be applicable.
Equity, in dealing with cases of an equitable nature, adopts and follows the analogies furnished
by the rules of law. A leading maxim of equity
jurisprudence, which, however, is not of universal
application, but liable to many exceptions. Frink
v. Commercial Bank of Emmettsburg, 195 Iowa,
1011, 191 N.W. 513.
Countervailing Equity
A contrary and balancing equity; an equity or
right opposed to that which is sought to be enforced or recognized, and which ought not to be
sacrificed or subordinated to the latter, because it
is of equal strength and justice, and equally deserving of consideration.
Existing Equity
See Existing Equity.
Latent or Secret Equity
An equitable claim or right, the knowledge of
which has been confined to the parties for and
against whom it exists, or which has been concealed from one or several persons interested in
the subject-matter.
Natural Equity
A term sometimes employed in works on jurisprudence, possessing no very precise meaning,
but used as equivalent to justice, honesty, or morality in business relations, or man's innate sense
of right dealing and fair play. Inasmuch as equity, as now administered, is a complex system of
rules, doctrines, and precedents, and possesses,
within the range of its own fixed principles, but
little more elasticity than the law, the term "natural equity" may be understood to denote, in a
general way, that which strikes the ordinary conscience and sense of justice as being fair, right,
and equitable, in advance of the question whether
the technical jurisprudence of the chancery courts
would so regard it.
Perfect Equity
An equitable title or right which lacks nothing
to its completeness as a legal title or right except
the formal conveyance or other investiture which
would make it cognizable at law; particularly, the
equity or interest of a purchaser of real estate
who has paid the purchase rice in full and fulfilled all conditions resting o him, but has not yet
received a deed or patent. See Shaw v. Lindsey,
60 Ala. 344; Smith v. Cockrell, 66 Ala. 75.
EQUITY, COURTS OF. Courts which administer
justice according to the system of equity, and according to a peculiar course of procedure or practice. Frequently termed "courts of chancery."
EQUITY JURISDICTION. In a general sense,
the jurisdiction belonging to a court of equity,
but more particularly the aggregate of those cases, controversies, and occasions which form proper subjects for the exercise of the powers of a
chancery court. See Wadham Oil Co. v. Tracy,
141 Wis. 150, 123 N.W. 785, 787, 18 Ann.Cas. 779;
Venner v. Great Northern R. Co., C.C.N.Y., 153 F.
408, 413, 414.
"Equity jurisdiction," in its ordinary acceptation, as distinguished on the one side from the general power to decide matters at all, and on the other from the jurisdiction
"at law" or "common-law jurisdiction," is the power to
hear certain kinds and classes of civil causes according to
the principles of the method and procedure adopted by
the court of chancery, and to decide them in accordance
with the doctrines and rules of equity jurisprudence,
which decision may involve either the determination of the
equitable rights, estates, and interests of the parties to
such causes, or the granting of equitable remedies. In
order that a cause may come within the scope of the equity jurisdiction, one of two alternatives is essential; either
the primary right, estate, or interest to be maintained, or
the violation of which furnishes the cause of action, must
be equitable rather than legal; or the remedy granted
must be in its nature purely equitable, or if it be a remedy which may also be given by a court of law, it must
be one which, under the facts and circumstances of the
case, can only be made complete and adequate through the
equitable modes of procedure. Norback v. Board of Directors of Church Extension Soc., 84 Utah 506, 37 P.2d 339.
EQUITY JURISPRUDENCE. That portion of
remedial justice which is exclusively administered by courts of equity as distinguished from
courts of common law. Jackson v. Nimmo, 3
Lea (Tenn.) 609. More generally speaking, the
science which treats of the rules, principles, and
maxims which govern the decisions of a court of
equity, the cases and controversies which are considered proper subjects for its cognizance, and the
nature and form of the remedies which it grants.
EQUITY LOOKS UPON THAT AS DONE
WHICH OUGHT TO HAVE BEEN DONE. 1
Story, Eq.Jur. § 64g. Equity will treat the subject-matter, as to collateral consequences and incidents, in the same manner as if the final acts
contemplated by the parties had been executed
exactly as they ought to have been; not as the
parties might have executed them. Rankin v.
Rankin, 36 Ill. 293, 87 Am.Dec. 205.
EQUITY OF A STATUTE. By this phrase is intended the rule of statutory construction which
635
EQUITY OF PARTNERS
admits within the operation of a statute a class
of cases which are neither expressly named nor
excluded, but which, from their analogy to the cases that are named, are clearly and justly within
the spirit and general meaning of the law; such
cases are said to be "within the equity of the
statute."
EQUITY OF PARTNERS. A term used to designate the right of each of them to have the firm's
property applied to the payment of the firm's
debts. Colwell v. Bank, 16 R.I. 288, 17 A. 913.
EQUITY OF REDEMPTION. The right of the
mortgagor of an estate to redeem the same after
it has been forfeited, at law, by a breach of the
condition of the mortgage, upon paying the
amount of debt, interest and costs. Riddick V.
Davis, 220 N.C. 120, 16 S.E.2d 662, 666; Broun v.
United States, C.C.A.Pa., 95 F.2d 487, 489.
The right of redemption after sale is distinct from the
equity of redemption after breach of condition and before
the sale. The former commences only when the latter
ends. One rests on the principles of equity, the other on
the terms of the statute. Hummel v. Citizens' Building &
Loan Ass'n, Ariz., 296 P. 1014, 1015.
EQUITY SUFFERS NOT A RIGHT WITHOUT A
REMEDY. 4 Bouv.Inst. No. 3726. Graselli Chemical Company v. /Etna Explosives Co., 252 F. 456,
164 C.C.A. 380.
of the patent as endowed with this capability.
Duff Mfg. Co. v. Forgie, 59 F. 772, 8 C.C.A. 261;
For "Fair Equivalent," see that title.
For one device to be the equivalent of another, it must
perform the same function in substantially the same way.
Chicago Forging & Mfg. Co. v. Bade-Cummins Mfg. Co.,
C.C.A.Ky., 63 F.2d 928, 931; Donner v. Sheer Pharmacal
Corporation, C.C.A.Mo., 64 F.2d 217, 223; Corcoran v.
Riness, D.C.Cal., 19 F.Supp. 344, 347.
"Equivalents" in an art or process are such acts as, In
accordance with preceding rules, are interchangeable with
those which the inventor has himself employed. Superior
Skylight Co. v. August Kuhnla, D.C.N.Y., 265 F. 282, 284.
An "equivalent," in patent law, is not the same as a
"substitute." McCaskey Register Co. v. Mantz, D.C.N.Y.,
217 F. 415, 419.
EQUIVOCAL. Having a double or several meanings or senses. Synonymous with "ambiguous".
Fleck v. Baldwin, 141 Tex. 340, 172 S.W.2d 975,
979. See Ambiguity.
EQUULEUS. A kind of rack for extorting confessions.
EQUUS COOPERTUS. A horse equipped with
saddle and furniture.
ERABILIS. A maple tree. Not to be confounded
with arabilis, (arable land.)
EQUITY TERM. An equity term of court is one
devoted exclusively to equity business, that is, in
v.thich no criminal cases are tried nor any cases
requiring the impaneling of a jury. Hesselgrave
v. State, 63 Neb. 807, 89 N.W. 295.
ERASTIANS. The followers of Erastus. Thesect obtained much influence in England, particularly among common lawyers in the time of Selden. They held that offenses against religion
and morality should be punished by the civil power, and not by the censures of the church or by
excommunication. Wharton.
EQUITY TO A SETTLEMENT. The equitable
right of a wife, when her husband sues in equity
for the reduction of her equitable estate to his
own possession, to have the whole or a portion of
such estate settled upon herself and her children.
Also a similar right now recognized by the equity
courts as directly to be asserted against the husband. Also called the "wife's equity." Poindexter v. Jeffries, Clarke v. McCleary, 12 Smedes &
M. (Miss.) 354.
ERASURE. The obliteration of words or marks
from a written instrument by rubbing, scraping,
or scratching them out. Also the place in a document where a word or words have been so removed. The term is sometimes used for the removal
of parts of a writing by any means whatever, as
by cancellation; but this is not an accurate use.
Cloud v. Hewitt, 5 Fed.Cas. 1,085; In re Fergeson,
126 Misc. 286, 213 N.Y.S. 656, 658; Murray v.
Floyd, 216 Minn. 69, 11 N.W.2d 780, 783.
EQUIVALENT, adj. Equal in value, force,
measure, volume, power, and effect or having
equal or corresponding import, meaning or significance; alike, identical. Salt Lake County v. Utah
Copper Co., C.C.A.Utah, 93 F.2d 127, 132; Nahas
v. Nahas; 59 Nev. 220, 90 P.2d 223, 224; Kelley v.
Clark, 23 Idaho, 1, 129 P. 921, 925, Ann.Cas.1914C,
665.
ERCISCUNDUS. In the civil law. To be divided. Judicium familice erciscundce, a suit for the
partition of an inheritance. Inst. 4, 17, 4. An
ancient phrase derived from the Twelve Tables.
Calvin.
EQUIVALENT, n. In patent law. Any act or
substance which is known in the arts as a proper
substitute for some other act or substance employed as an element in the invention, whose substitution for that other act or substance does not
in any manner vary the idea of means. It possesses three characteristics: It must be capable
of performing the same office in the invention as
the act or substance whose place it supplies; it
must relate to the form or embodiment alone and
not affect in any degree the idea of means; and
it must have been known to the arts at the date
ERECT. One of the formal words of incorporation in royal charters. "We do, incorporate, erect,
ordain, name, constitute, and establish." "Construct" is synonymous with "erect". State ex rel.
Davis v. Barber, 139 Fla. 706, 190 So. 809.
ERECTION. Raising up; building; a completed building; to build; construct; set up. In a
statute on the "erection" of wooden buildings, this
term does not include repairing, alteration, enlarging, or removal. See Shaw v. Hitchcock, 119
Mass. 256; Escambia County v. Blount Const. Co.,
66 Fla. 129, 62 So. 650, 651; Flynn v. New York, W.
& B. Ry. Co., 218 N.Y. 140, 112 N.E. 913, 914, Ann.
Cas.1918B, 588; Watson v. Greely, 69 Cal.App.
636
ERROR
Thompson v. Doty, 72 Ind. 338; U. S. v. Sakharam
Ganesh Pandit, C.C.A.Cal., 15 F.2d 285, 286.
"False" as a constituent of a fraud action may at
times be said to be synonymous with "erroneous."
Abel v. Paterno, 153 Misc. 248, 274 N.Y.S. 749.
643, 232 P. 475, 479. There is a distinction between
"erection" and maintenance. Turturro v. Calder,
307 Mass. 159, 29 N.E.2d 744, 746.
ERECTOR SPINIE MUSCLES. A group of muscles on each side of the spine running all the way
up from the sacrum to the skull. Biener v. St.
Louis Public Service Co., Mo...kpp., 160 S.W.2d 780,
788.
ERRONEOUS ASSESSMENT. Refers to an assessment that deviates from the law and is therefore invalid, and is a defect that is jurisdictional
in its nature, and does not refer to the judgment
of the assessing officer in fixing the amount of valuation of the property. In re Blatt, 41 N.M. 269,
67 P.2d 293, 301, 110 A.L.R. 656; Ritchie Grocer
Co. v. City of Texarkana, 182 Ark. 137, 30 S.W.
2d 213, 214; Flourney v. First Nat. Bank of
Shreveport, 197 La. 1067, 3 So.2d 244, 252.
ERGO. Lat. Therefore; hence; because.
ERGOLABI. In the civil law. Undertakers of
work; contractors. Cod. 4, 59.
ERGOT. A medicinal used as a uterine contractor to contract the muscles so as to expel certain
material from the uterus. People v. Chester, 179
Misc. 864, 42 N.Y.S.2d 293, 295.
ERRONEOUS JUDGMENT. One rendered according to course and practice of court, but contrary to law, upon mistaken view of law, or upon
erroneous application of legal principles. Herbert B. Newton & Co. v. Wilson Furniture Mfg.
Co., 206 N.C. 533, 174 S.E. 449, 450.
ERIACH. A term of the Irish Brehon law, denoting a pecuniary mulct or recompense which a
murderer was judicially condemned to pay to the
family or relatives of his victim. It correspond.
ed to the Saxon "weregild." See 4 Bl.Comm. 313.
ERIGIMUS. We erect. One of the words by
which a corporation may be created in England by
the king's charter. 1 Bl.Comm. 473.
ERMINE. By metonymy, this term is used to
describe the office or functions of a judge, whose
state robe, lined with ermine, is emblematical of
purity and honor without stain. Webster.
ERNES. In old English law. The loose scattered ears of corn that are left on the ground after
the binding.
EROSION. The gradual eating away of the soil
by the operation of currents or tides. Distinguished from submergence, which is the disappearance
of the soil under the water and the formation of
a navigable body over it. Mulry v. Norton, 100
N.Y. 433, 3 N.E. 584, 53 Am.Rep. 206; State of
Arkansas v. State of Tennessee, 246 U.S. 158, 38 S.
Ct. 301, 304, 62 L.Ed. 638, L.R.A.1918D, 258.
EROTOMANIA. See Insanity.
ERRANT. Wandering; itinerant; applied to justices on circuit, and bailiffs at large, etc.
ERRANT WATER. Stream water, which does
not have channel of navigable river or which returns to stream after overflowing its banks, is
not "errant water" in which riparian owner can
acquire no vested rights. Tallassee Power Co. v.
Clark, C.C.A.Tenn., 77 F.2d 601, 603.
ERRATICUM. In old law. A waif or stray; a
wandering beast. Cowell.
ERRATUM. Lat. Error. Used in the Latin formula for assigning errors, and in the reply thereto, "in nullo est erratum," i. e., there was no error, no error was committed.
ERRONEOUS. Involving error; deviating from
the law. This term is never used by courts or
law-writers as designating a corrupt or evil act.
ERRONEOUS OR ILLEGAL TAX. One levied
without statutory authority, or upon property not
subject to taxation, or by some officer having no
authority to levy the tax, or one which in some
other similar respect is illegal. Jewett Realty
Co. v. Board of Sup'rs of Polk County, 239 Iowa
988, 33 N.W.2d 377.
ERRONICE. Lat. Erroneously; through error
or mistake.
ERROR. A mistaken judgment or incorrect belief as to the existence or effect of matters of fact,
or a false or mistaken conception or application
of the law.
Such a mistaken or false conception or application of the law to the facts of a cause as will furnish ground for a review of the proceedings upon
a writ of error; a mistake of law, or false or irregular application of it, such as vitiates the proceedings and warrants the reversal of the judgment.
Error is also used as an elliptical expression for
"writ of error;" as in saying that error lies;
that a judgment may be reversed on error.
An act involving a departure from truth or accuracy. Gronseth v. Mohn, 57 S.D. 604, 234 N.W.
603, 604.
Assignment of Errors
In practice. The statement of the plaintiff's
case on a writ of error, setting forth the errors
complained of; corresponding with the declaration in an ordinary action. 2 Tidd, Pr. 1168; 3
Steph.Comm. 644. Armour v. Pennsylvania R.
Co., 353 Ill. 575, 187 N.E. 532, 534; Fahrenbrink v.
Moore, 51 Ariz. 176, 75 P.2d 360, 361. A specification of the errors upon which the appellant will
rely, with such fullness as to give aid to the court
in the examination of the transcript. Squires v.
Foorman, 10 Cal. 298; Streeter v. State, 89 Fla.
400, 104 So. 858, 859; Largent v. Etheridge, Tex.
Civ.App., 13 S.W.2d 974, 976; Helms v. Cook, 62
637
ERROR
Ind.App. 629, 111 N.E. 632, 633; Wine v. Jones,
183 Iowa, 1166, 168 N.W. 318, 320.
The office of an assignment of error, which is in the nature of a pleading by the plaintiff in error or appellant, is
not only to inform the appellate court of the exact complaint against rulings, whereby, if the complaint be sustained, a judgment or decree may be changed or reversed,
hut is to inform the defendant in error or appellee
of the precise errors relied upon, in order that such defendant in error or appellee may take proper steps, or
give proper directions in his own behalf, for making up a
sufficient transcript of the record to exhibit to the court
what might otherwise be insufficiently shown. Davidson
v. Bezant, 101 Fla. 1296, 132 So. 488, 489.
"Assignment of error" is formal complaint of some action of trial court, as distinguished from "proposition,"
which merely sets forth reasons why such action is erroneous. Standard v. Texas Pacific Coal & Oil Co., Tex.Civ.
App., 47 S.W.2d 443, 449.
the judgment, as, where the error was neutralized
or corrected by subsequent proceedings in the
case, or where, notwithstanding the error, the particular issue was found in that party's favor, or
where, even if the error had not been committed,
he could not have been legally entitled to prevail.
Invited Error
In appellate practice. The principle of "invited error" is that if, during the progress of a cause,
a party requests or moves the court to make a ruling which is actually erroneous, and the court does
so, that party cannot take advantage of the error
on appeal or review. Gresham v. Harcourt, 93
Tex. 149, 53 S.W. 1019.
Judicial Errors
Clerical Error
See Clerical.
Common Error
( Lat. communis error, q. v.) An error for
which there are many precedents. "Common error goeth for a law." Finch, Law, b. 1, c. 3, no.
54. "Common errors" are that the declaration is
insufficient in law to maintain the action, and that
judgment was given for plaintiff instead of defendant, or vice versa. Margolies v. Goldberg, 101
N.J.L. 75, 127 A. 271, 272.
Cross-Errors
Errors assigned by the respondent in a writ of
error, or appellee.
Error Apparent of Record
Plain, fundamental error that goes to the foundation of the action irrespective of the evidence;
an obvious misapprehension of the applicable law.
Kenedy Mercantile Co. v. Ainsworth, Tex.Civ.App.,
281 S.W. 637; Provident Life & Accident Ins. Co.
v. Johnson, Tex.Civ.App., 235 S.W. 650, 652; Parks
v. Parks, 68 App.D.C. 363, 98 F.2d 235, 236.
Fundamental Error
In appellate practice. Error which goes to the
merits of the plaintiff's cause of action, and which
will be considered on review, whether assigned as
error or not, where the justice of the case seems to
require it. Hollywood v. Wellhausen, 28 Tex.Civ.
App. 541, 68 S.W. 329; Goodhue v. Fuller, Tex.Civ.
App., 193 S.W. 170, 172. Error in law apparent
on the face of the record. St. Louis Southwestern
Ry. Co. of Texas v. Anderson, Tex.Civ.App., 206
S.W. 696, 698.
Harmful Error
Error which more probably than improbably affected the verdict or judgment prejudicially to
the party complaining. Ashby v. Virginia Ry. &
Power Co., 138 Va. 310, 122 S.E. 104, 110.
Harmless Error
In appellate practice. An error committed in
the progress of the trial below, but which was not
prejudicial to the rights of the party assigning it,
and for which, therefore, the court will not reverse
Errors into which the court itself falls. State
v. District Court of Second Judicial District in and
for Silver Bow County, 55 Mont. 324, 176 P. 608,
609.
Reversible Error
In appellate practice. Such an error as warrants the appellate court in reversing the judgment before it; substantial error, that which reasonably might have prejudiced the party complaining. Shinn v. United Rys. Co. of St. Louis,
248 Mo. 173, 154 S.W. 103, 105; New Mexican R.
Co. v. Hendricks, 6 N.M. 611, 30 Pac. 901.
Technical Error
In appellate practice. A merely abstract or theoretical error, which is practically not injurious to
the party assigning it. Epps v. State, 102 Ind. 539,
1 N.E. 491.
ERROR CASE. An appeal on questions of law.
In re Green's Estate, Ohio App., 41 N.E.2d 586.
ERROR CORAM NOBIS. Error committed in the
proceedings "before us;" e., error assigned as a
ground for reviewing, modifying, or vacating a
judgment in the same court in which it was rendered. A writ to bring before the court that pronounced judgment errors in matters of fact which
had not been put in issue or passed on and were
material to validity and regularity of legal proceeding itself. Hiawassee Lumber Co. v. United
States, C.C.A.N.C., 64 F.2d 417, 418.
ERROR CORAM VOBIS. Error in the proceedings "before you;" words used in a writ of error
directed by a court of review to the court which
tried the cause.
ERROR FUCATUS NUDA VERITATE IN MUL-
TIS . EST PROBABILIOR; ET SAZEPENUMERO
RATIONIBUS VINCIT VERITATEM ERROR.
Error artfully disguised [or colored] is, in many
instances, more probable than naked truth; and
frequently error overwhelms truth by [its show
of] reasons. 2 Coke, 73.
ERROR IN EXERCISE OF JURISDICTION. Error in determination of questions of law or fact
638
ESCAPE
on which the court's jurisdiction in particular case
depends. Burgess v. Nail, C.C.A.Okl., 103 F.2d
37, 43.
ERROR IN FACT. In judicial proceedings, error
in fact occurs when, by reason of some fact which
is unknown to the court and not apparent on the
record (e. g., the coverture, infancy, or death of
one of the parties), it renders a judgment which
is void or voidable. Cruger v. McCracken, 87
Tex. 584, 30 S.W. 537; Kihlholz v. Wolff, 8 Ill.
App. 371.
ERRORS EXCEPTED. A phrase appended to an
account stated, in order to excuse slight mistakes
or oversights.
ERUBESCIT LEX FILIOS CASTIGARE PARENTES. 8 Cpke, 116. The law blushes when
children correct their parents.
ERROR IN VACUO. Error in adverse ruling
without adverse effect is "error in vacuo" which
may subject the erring judge to criticism but not
the case to re-trial. United States v. A Certain
Tract or Parcel of Land in Chatham County, Ga.,
D.C.Ga., 47 F.Supp. 30, 36.
ESBRANCATURA. In old law. A cutting off the
branches or boughs of trees. Cowell; Spelman.
ERROR JURIS NOCET. Error of law injures. A
mistake of the law has an injurious effect; that
is, the party committing it must suffer the consequences. Mackeld.Rom.Law, § 178; 1 Story, Eq.
Jur. § 139, note.
ERROR NOMINIS. Error of name. A mistake
of detail in the name of a person; used in contra.
distinction to error de persona, a mistake as *to
identity.
ERROR NOMINIS NUNQUAM NOCET, SI DE
IDENTITATE REI CONSTAT. A mistake in the
name of a thing is never prejudicial, if it be clear
as to the identity of the thing itself, [where the
thing intended is certainly known.] 1 Duer, Ins.
171. This maxim is applicable only where the
means of correcting th€ mistake are apparent on
the face of the instrument to be construed. Id.
ERROR OF FACT. That is called "error of fact"
which proceeds either from ignorance of that
which really exists or from a mistaken belief in
the existence of that which has none. See Norton
v. Marden, 15 Me. 45, 32 Am.Dec. 132. Finding of
fact contrary to the weight of the evidence is an
error of fact. Wear v. Imperial Window Glass
Co., C.C.A.Mo., 224 F. 60, 62. Cf. Error in Fact,
supra.
ERROR `OF LAW. He is under an error of law
who is truly informed of the existence of facts,
but who draws from them erroneous conclusions
of law. Civ.Code La. art. 1822. Mowatt v.
Wright, 1 Wend., N.Y., 360, 19 Am.Dec. 508.
ERROR, WRIT OF. See Writ of Error.
ERRORES SCRIBENTIS NOCERE NON DEBENT. The mistakes of the writer ought not to
harm. Jenk.Cent. 324.
ERTHMIOTUM. In old English law. A meeting
of the neighborhood to compromise differences
among themselves; a court held on the boundary
of two lands.
ERROR IN LAW. An error of the court in applying the law to the case on trial, e. g., in ruling
on the admission of evidence, or in charging the
jury. McKenzie v. Bismarck Water Co., 6 N.D.
361, 71 N.W. 608; Scherrer v. Hale, 9 Mont. 63, 22
Pac. 151.
ERROR QUI NON RESISTITUR APPROBATUR.
An error which is not resisted or opposed is approved. Doct. & Stud. c. 40.
ERRORES AD SUA PRINCIPIA REFERRE, EST
REFELLERE. To refer errors to their sources is
to refute them. 3 Inst. 15. To bring errors to
their beginning is to see their last.
ESCALATOR CLAUSE. A clause usually found
in leases or contracts executed subject to price
control regulations. Under this clause, in the case
of a lease, the landlord is authorized to collect the
maximum rent permissible under rent regulations
in force at time of execution of the lease. The escalator part of the clause of the lease consists in
the provision that in the event that the rent regulations are modified during the term of the lease,
the tenant will pay the increased rental following
the allowance thereof. Wasservogel v. Meyerowitz, 191 Misc. 594, 79 N.Y.S.2d 256; and 89 N.Y.S.
2d 290, 275 App.Div. 387. In the case of a sales
contract, the escalator clause usually provides in
effect that should the maximum prices promulgated be increased or decreased during the life of
the contract, payment will be made by the purchaser at a rate of increase or decrease not to exceed the same ratio that the prices quoted bear
to the maximum prices authorized. Simpson
Bros. v. District of Columbia, D.C.D.C., 73 F.Supp.
858, and 179 F.2d 430. Pfotzer et al. v. United
States, 176 F.2d 675; Record & Tribune Co. v.
Brandtjen & Kluge, Inc., Iowa, 39 N.W.2d 288.
Escalator clauses authorizing the contractor to
increase the contract price should the prices of
labor or material advance also appear in other
contract§, such as a contract to furnish steam.
Lincoln Rug Co. v. East Newark Realty Corp.,
142 N.J.Eq. 743, 61 A.2d 448.
ESCALDARE. To scald. It is said that to scald
hogs was one of the ancient tenures in serjeanty.
Wharton.
ESCAMBIO. In old English law. A writ of exchange. A license in the shape of a writ, former.
ly granted to an English merchant to draw a bill
of exchange on another in foreign parts. Reg.
Orig. 194.
ESCAMBIUM. An old English law term, signifying exchange.
ESCAPE. The departure or deliverance out of
custody of a person who was lawfully imprison
639
ESCAPE
ed, before he is entitled to his liberty by the process of law.
The voluntarily or negligently allowing any person lawfully in confinement to leave the place.
2 Bish.Crim.Law, § 917.
Escapes are either voluntary or negligent. The
former is the case when the keeper voluntarily
concedes to the prisoner any liberty not authorized by law. The latter is the case when the prisoner contrives to leave his prison by forcing his
way out, or any other means, without the knowledge or against the will of the keeper, but through
the latter's carelessness or the insecurity of the
building. Cortis v. Dailey, 21 App.Div. 1, 47 N.Y.
S. 454; U. S. v. Hoffman, D.C.I11., 13 F.2d 269, 270;
Whitaker v. Commonwealth, 188 Ky. 95, 221 S.W.
215, 216, 10 A.L.R. 145; State v. Pace, 192 N.C.
780, 136 S.E. 11, 12.
To flee from; to a void; to get out of the way,
as to flee to avoid arrest. Life & Casualty Ins.
Co. sr. Hargraves, 169 Tenn. 388, 88 S.W.2d 451,
452; State v. Dreiling, 136 Kan, 78, 12 P.2d 735, 736.
—Constructive escape. This takes place when a
prisoner obtains more liberty than the law allows,
although he still remains in custody. 21 C.J. p.
827. An example is the unauthorized production
of a prisoner in court by his custodian. In re
Rigg, 123 A. 243, 95 N.J.Eq. 341.
ESCAPE FROM PRISON. A prisoner serving a
sentence of imprisonment in a state prison is, in
contemplation of law, a prisoner therein, as well
when at work outside under the surveillance of
prison guards as when confined within its walls,
so that if he escapes when outside he escapes from
a prison within Pen.Code, §§ 106, 787. People v.
Vanderburg, 67 Cal.App. 217, 227 P. 621.
ESCAPE WARRANT. In English practice. This
was a warrant granted to retake a prisoner committed to the custody of the king's prison who
had escaped therefrom. It was obtained on affidavit from the judge of the court in which the
action had been brought, and was directed to all
the sheriffs throughout England, commanding
them to retake the prisoner and commit him to
gaol when and where taken, there to remain until
the debt was satisfied. Jacob; Brown.
ESCAPE WAY. Passageway leading from the inside to the outside of the mine. Roberts v. Tennessee Coal, Iron & R. Co., C.C.A.Ala., 255 F. 469,
471; Robinson v. Maryland Coal & Coke Co., 196
Ala. 604, 72 So. 161, 162.
DERIVATUR A VERBO GALLIC()
ESCHOIR, QUOD EST ACCIDERE, QUIA ACCIDIT DOMINO EX EVENTU ET EX INSPERATO. Co.Litt. 93. Escheat is derived from the
ESCHIETA
French word "eschoir," which signifies to happen,
because it falls to the lord from an event and from
an unforeseen circumstance.
VULGO DICUNTUR QUIE DECIDENTIBUS IIS QUIE DE REGE TENENT, CUM
NON EXISTIT RATIONE SANGUINIS HIERES,
AD FISCUM RELABUNTUR. Those things are
ESCHIETIE
commonly called "escheats" which revert to the
exchequer from a failure of issue in those who
hold of the king, when there does not exist any
heir by consanguinity.
ESCHEAT. In feudal law. Escheat Is an obstruction of the course of descent, and consequent
determination of the tenure, by some unforeseen
contingency, in which case the land naturally results back, by a kind of reversion, to the original
grantor, or lord of the fee. 2 B1.Comm. 15; Wallace v. Harmstad, 44 Pa. 501; Marshall v. Lovelass, 1 N.C. 445; Kavanaugh v. Cohoes Power &
Light Corporation, 114 Misc. 590, 187 N.Y.S. 216,
231; State v. Phoenix Sa y . Bank & Trust Co., 60
Ariz. 138, 132 P.2d 637, 638.
It is the casual descent, in the nature of forfeiture, of lands and tenements within his manor, to
a lord, either on failure of issue of the tenant dying seised or on account of the felony of such tenant. Jacob.
Also the land or fee itself, which thus fell back
to the lord. Such lands were called "excadentice,"
or "terrce excadentiales." Fleta, lib. 6, c. 1; Co.
Litt. 13a.
In American law. Escheat signifies a reversion
of property to the state in consequence of a want
of any individual competent to inherit. The state
is deemed to occupy the place and hold the rights
of the feudal lord. See 4 Kent, Comm. 423, 424.
Center v. Kramer, 112 Ohio St. 269, 147 N.E. 602,
604; In re O'Connor's Estate, 126 Neb. 182, 252
N.W. 826; Braun v. McPherson, 277 Mich. 396, 269
N.W. 211, 212.
"Escheat at feudal law was the right of the lord of a fee
to re-enter upon the same when it became vacant by the
extinction of the blood of the tenant. This extinction
might either be per clef ectum sanguinis or else per delicturn
tenentis, where the course of descent was broken by the
corruption of the blood of the tenant. As a fee might be
holden either of the crown or from some inferior lord, the
escheat was not always to the crown. The word 'escheat,'
in this country, at the present time, merely indicates the
preferable right of the state to an estate left vacant, and
without there being any one in existence able to make
claim thereto." 29 Am. Dec. 232, note.
ESCAPIO QUIETUS.
In old English law. Delivered from that punishment which by the laws of
the forest lay upon those whose beasts were found
upon forbidden land. Jacob.
Single Escheat
When all a person's movables fall to the crown,
as a casualty, because of his being declared rebel.
Wharton.
ESCAPIUM. That which comes by chance or accident. Cowell.
ESCHEAT,
ESCEPPA. A measure of corn. Cowell.
WRIT OF. A writ which anciently
lay for a lord, to recover possession of lands that
had escheated to him. Reg.Orig. 164b; Fitzh.
Nat.Brev. 143.
640
ESQUIRE
ESCHEATOR. In English law. The name of an
officer who was appointed in every county to look
after the escheats which fell due to the king in
that particular county, and to certify the same
into the exchequer. An escheator could continue
in office for one year only, and was not re-eligible
until three years. There does not appear to exist
any such officer at the present day. Brown. See
10 Vin.Abr. 158; Co.Litt. 13b.
ESCHECCUM. In old English law. A jury or
inquisition.
ESCHIPARE. To build or equip. Du Cange.
ESCOBEDO RULE. Where police investigation
begins to focus on a particular suspect, the suspect is in custody, the suspect requests and is denied counsel, and the police have not warned him
of his right to remain silent, the accused has been
denied assistance of counsel and no statement
elicited during such interrogation may be used in
a criminal trial. Escobedo v. State of Illinois, 378
U.S. 478, 490, 491, 84 S.Ct. 1758, 12 L.Ed.2d 977.
ESCOT. A tax formerly paid in boroughs and
corporations towards the support of the community, which is called "scot and lot."
ESCRIBANO. In Spanish law. An officer, resembling a notary in French law, who has authority to set down in writing, and verify by his at-'
testation, transactions and contracts between private persons, and also judicial acts and proceedings.
ESCRITURA. In Spanish law. A written instrument. Every deed that is made by the hand of a
public escribano, or notary of a corporation or
council (concejo,) or sealed with the seal of the
king or other authorized persons. White, New
Recop. b. 3, tit. 7, c. 5.
ESCROQUERIE. Fr. Fraud, swindling, cheating.
ESCROW. A scroll, writing, or deed, delivered by
the grantor, promisor or obligor into the hands of
a third person, to be held by the latter until the
happening of a contingency or performance of a
condition, and then by him delivered to the grantee, promisee or obligee. Minnesota & Oregon
Land & Timber Co. v. Hewitt Inv. Co., D.C.Or., 201
F. 752, 759.
ESCURARE. To scour or cleanse. Cowell.
ESGLISE, or EGLISE. A church. Jacob.
ESKETORES. Robbers, or destroyers of other
men's lands and fortunes. Cowell.
ESKIPPAMENTUM. Tackle or furniture; outfit.
Certain towns in England were bound to furnish
certain ships at their own expense and with double
skippage or tackle. Cowell.
ESKIPPER, ESKIPPARE. To ship.
ESKIPPESON. Shippage, or passage by sea.
Spelled, also, "skippeson." Cowell.
ESLISORS. See Elisors.
ESNE. In old law. A hireling of servile condition.
ESNECY. Seniority; the condition or right of the
eldest; the privilege of the eldest-born. Particularly used of the privilege of the eldest among
coparceners to make a first choice of purparts
upon a voluntary partition.
ESPEDrENT. In Spanish law. A junction of all
the separate papers made in the course of any one
proceeding and which remains in the office at the
close of it. Castillero v. U. S., 2 Black 109, 17 L.
Ed. 360.
ESPERA. A period of time fixed by law or by a
court within which certain acts are to be performed, e. g., the production of papers, payment of
debts, etc.
ESPERONS. L. Fr. Spurs.
ESPLEES. An old term for the products which
the ground or land yields; as the hay of the meadows, the herbage of the pasture, corn of arable
fields, rent and services, etc. The word has been
anciently applied to the land itself. Jacob; Fosgate v. Hydraulic Co., 9 Barb., N.Y., 293.
ESPOUSALS. A mutual promise between a man
and a woman to marry each other at some other
time. It differs from a marriage, because then
the contract is completed. Wood, Inst. 57.
The state or condition of a deed which is conditionally held by a third person, or the possession
and retention of a deed by a third person pending
a condition; as when an instrument is said to be
delivered "in escrow." This use of the term, however, is a perversion of its meaning.
ESCROWL. In old English law. An escrow; a
scroll. "And deliver the deed to a stranger, as
an escrowl." Perk. c. 1, § 9; Id. c. 2, §§ 137, 138.
ESCUAGE. Service of the shield. One of the
varieties of tenure ,in knight's service, the duty
i mposed being that of accompanying the king to
the wars for forty days, at the tenant's own
blades Law Dictionary Revised 4th Ed.-41
charge, or sending a substitute. In later times,
this service was commuted for a certain payment
in money, which was then called "escuage certain." See 2 Bl.Comm. 74, 75.
ESPURIO. Span. In Spanish law. A spurious
child; one begotten on a woman who has promiscuous intercourse with many men. White, New
Recop. b. 1, tit. 5, c. 2, § 1.
ESQUIRE. In English law. A title of dignity
next above gentleman, and below knight. Also a
f
given to sheriffs, serjeants, and bartitle of ofice
risters at law, justices of the peace, and others. 1
Bl.Comm. 406; 3 Steph.Comm. 15, note; Tomlins.
On the use of this term in American law, particularly as applied to justices of the peace and other
inferior judicial officers, see Christian v. Ashley
County, 24 Ark. 151; Corn. v. Vance, 15 Serg. &
R., Pa., 37.
641
ESSARTER
essoins,
e., excuses for parties who did not appear in court, according to the summons of writs.
3 Bl.Comm. 278; Boote, Suit at Law, 130; Gilb.
Com.Pl. 13; 1 Tidd, Pr. 107. But, by St. 11 Geo.
IV. and 1 Wm. IV. c. 70, § 6, these days were done
away with, as a part of the term.
ESSARTER. L. Fr. To cut down woods; to clear
land of trees and underwood; properly to thin
woods, by cutting trees, etc., at intervals. Spelman. See Assart.
ESSARTUM. Woodlands turned into tillage by
uprooting the trees and removing the underwood.
ESSENCE. That which is indispensable. Pittsburgh Iron & Steel Foundries Co. v. SeamanSleeth Co., D.C.Pa., 236 F. 756, 757. The gist or
substance of any act; the vital constituent of a
thing; that without which a thing cannot be itself. Norman v. Department of Labor and Industries, 10 Wash.2d 180, 116 P.2d 360, 362.
ESSENCE OF THE CONTRACT. Any condition
or stipulation in a contract which is mutually understood and agreed by the parties to be of such
vital importance that a sufficient performance of
the contract cannot be had without exact compliance with it is said to be "of the essence of
the contract." Flatow, Riley & Co. v. Roy Campbell Co., Tex.Com.App., 280 S.W. 517, 520; Dayvault & Newsome v. Townsend, Tex.Civ.App., 244
S.W. 1108, 1110.
ESSENDI QUIETUM DE TOLONIO. A writ to be
quit of toll; it lies for citizens and burgesses of
any city or town who, by charter or prescription,
ought to be exempted from toll, where the same is
exacted of them. Reg.Orig. 258.
ESSENTIAL. Indispensably necessary; important in the highest degree; requisite. Solter v.
Macmillan, 147 Md. 580, 128 A. 356, 358; City of
Kalamazoo v. Balkema, 252 Mich. 308, 233 N.W.
325, 326.
ESSENTIAL GOVERNMENTAL DUTIES. Those
duties which framers of Constitution intended each
member of union would assume in functioning
under form of government guaranteed by Constitution. Commissioner of Internal Revenue v. Stilwell, C.C.A.7, 101 F.2d 588, 591.
ESSENTIAL OIL. A group of volatile oils having
marked characteristic odors, occurring in fruits,
flowers, leaves, stems, etc. In re Johnston, Cust.
& Pat.App., 132 F.2d 136, 139.
ESSENTIALLY. "Substantially" is not necessarily synonymous. Robins v. Wettlaufer, Cust. &
Pat.App., 81 F.2d 882, 893.
ESSOIN, v. In old English practice. To present
or offer an excuse for not appearing in court on
an appointed day in obedience to a summons; to
cast an essoin. Spelman. This was anciently
done by a person whom the party sent for that
purpose, called an "essoiner."
ESSOIN, n. In old English law. An excuse for
not appearing in court at the return of the process. Presentation of such excuse. Spelman; 1
Sel.Pr. 4; Com.Dig. "Exoine," B 1. Essoin is not
now allowed at all in personal actions. 2 Term,
16; 16 East, 7a; 3 Bl.Comm. 278, note.
ESSOIN DAY. Formerly the first general returnday of t1ae term, on which the courts sat to receive
ESSOIN DE MALO VILL1E. When the defendant
is in court the first day; but gone without pleading, and being afterwards surprised by sickness,
etc., cannot attend, but sends two essoiners, who
openly protest in court that he is detained by
sickness in such a village, that he cannot come pro
lucrari and pro perdere; and this will be admitted, for it lieth on the plaintiff to prove whether
the essoin is true or not. Jacob.
ESSOIN ROLL. A roll upon which essoins were
formerly entered, together with the day to which
they were adjourned. Boote, Suit at Law, 130;
Rosc.Real Act. 162, 163; Gilb.Com.P1. 13.
ESSOINIATOR. A person who made an essoin.
EST ALIQUID QUOD NON OPORTET ETIAM SI
LICET; QUICQUID VERO NON LICET CERTE
NON OPORTET. Hob. 159. There is that which
is not proper, even though permitted; but whatever is not permitted is certainly not proper.
EST ASCAVOIR. It is to be understood or known;
"it is to-wit." Litt. §§ 9, 45, 46, 57, 59. A very
common expression in Littleton, especially at the
commencement of a section; and, according to
Lord Coke, "it ever teacheth us some rule of law,
or general or sure leading point." Co.Litt. 16.
EST AUTEM JUS PUBLICUM ET PRIVATUM,
QUOD EX NATURALIBUS PRJECEPTIS AUT
GENTIUM, AUT CIVILIBUS EST COLLECTUM;
ET QUOD IN JURE SCRIPT() JUS APPELLATUR, ID IN LEGE ANGLLZE RECTUM ESSE
DICITUR. Public and private law is that which
is collected from natural precepts, on the one hand
of nations, on the other of citizens; and that which
in the civil law is called "jus," that, in the law of
England, is said to be right. Co.Litt. 558.
EST AUTEM VIS LEGEM SIMULANS. Violence
may also put on the mask of law.
EST IPSORUM LEGISLATORUM TANQUAM
VIVA VOX. The voice of the legislators themselves is like the living voice; that is, the language
of a statute is to be understood and interpreted
like ordinary spoken language. 10 Coke, 101b.
EST QUIDDAM PERFECTIUS IN REBUS LICITIS. There is something more perfect in things
allowed.
ESTABLISH. This word occurs frequently in the
constitution of the United States, and it is there
used in different meanings: (1) To settle firmly,
to fix unalterably; as to establish justice, which is
the avowed object of the constitution. (2) To
make or form; as to establish a uniform rule of
naturalization, and uniform laws on the subject of
bankruptcies, which evidently does not mean that
these laws shall be unalterably established as jus-
642
ESTATE
tice. (3) To found, to create, to regulate; as:
"Congress shall have power to establish post-roads
and post-offices." (4) To found, recognize, confirm, or admit; as: "Congress shall make no law
respecting an establishment of religion." (5)
To create, to ratify, or confirm; as: "We, the people," etc., "do ordain and establish this constitution." 1 Story, Const. § 454. And see Ware v. U.
S., 4 Wall. 632, 18 L.Ed. 389; U. S. v. Smith, 4 N.J.
L. 33.
To settle or fix firmly; place on a permanent
footing; found; create; put beyond doubt or dispute; prove; convince. Smith v. Forrest, 49 N.H.
230; Rowley v. Braly, Tex.Civ.App., 286 S.W. 241,
245; Village of Villa Park v. Wanderer's Rest
Cemetery Co., 316 Ill. 226, 147 N.E. 104, 106;
Thompson v. U. S., C.C.A.N.J, 283 F. 895, 899;
Wells Lamont Corp. v. Bowles, Emp.App, 149 F.2d
364, 366.
•
ESTANDARD. L. Fr. A standard (of weights
and measures.) So called because it stands constant and immovable, and hath all other measures
coming towards it for their conformity. Termes
de la Ley.
ESTANQUES. Wears (weirs) or kiddies in rivers.
To bring into being; to build; to constitute;
to create; to erect; to form, to found; to found
and regulate, to institute, to locate; to make; to
model; to organize; to originate; to prepare; to
set up. Georgia Public Service Commission v.
Georgia Power Co., 182 Ga. 706, 186 S.E. 839, 844;
Muscatine Lighting Co. v. City of Muscatine, 205
Iowa 82, 217 N.W. 468, 470; Ronnow v. City of
Las Vegas, 57 Nev. 332, 65 P.2d 133, 140.
ESTABLISHMENT, ETABLISSEMENT. An ordinance or statute. Especially used of those ordinances or statutes passed in the reign of Edw. I.
2 Inst. 156; Britt. c. 21.
Etablissement is also used to denote the settlement of
dower by the husband tipon his wife. Britt. c. 102.
Institution, place where conducted and equipment; industrial plant and appurtenances; place
of business and fixtures; residence with grounds,
furniture, equipage, etc. State v. Scullin-Gallagher
Iron & Steel Co., 268 Mo. 178, 186 S.W. 1007, 1008,
Ann.Cas.1918E, 620; Benjamin Rose Institute v.
Myers, 92 Ohio St. 252, 110 N.E. 924, 927, L.R.A.
1916D, 1170; Walling v. American Stores Co.,
C.C.A.Pa., 133 F.2d 840, 844; Continental Baking
Co. v. Campbell, 176 Okl. 218, 55 P.2d 114, 116. In a
narrow sense, "to bring into being, create, build,
set up, etc." Gunnar v. Town of Montezuma, 229
Iowa 734, 294 N.W. 895, 897.
ESTABLISHMENT OF DOWER. The assurance
of dower made by the husband, or his friends, before or at the time of the marriage. Britt. cc. 102,
103.
ESTACHE. A bridge or stank of stone or timber.
Cowell.
ESTADAL. In Spanish law. In Spanish America,
a measure of land of sixteen square varas, or
yards. 2 White, Recop. 139.
ESTADIA (or Sobrestadia). In Spanish law. Delay in a voyage, or in the delivery of cargo, caused
by the charterer or consignee, for which demurrage is payable. The time for which the party who
has chartered a vessel, or is bound to receive the
cargo, has to pay demurrage on account of his delay in the execution of the contract.
ESTATE. The interest which any one has in
lands, or in any other subject of property. 1
Prest.Est. 20. And see Mulford v. Le Franc, 26
Cal. 103; Robertson v. VanCleave, 129 Ind. 217, 29
N.E. 781, 15 L.R.A. 68; Ball v. Chadwick, 46 Ill.
31. An estate in lands, tenements, and hereditaments signifies such interest as the tenant has
therein. 2 Bl.Comm. 103. The condition or circumstance in which the owner stands with regard
to his property. 2 Crabb, Real Prop. p. 2, § 942;
Boyd v. Sibold, 7 Wash.2d 279, 109 P.2d 535,
539. In this sense, "estate" is constantly used in
conveyances in connection with the words "right,"
"title," and "interest," and is, in a great degree,
synonymous with all of them. See Co.Litt. 345.
The degree, quantity, nature, and extent of interest
which a person has in real property is usually referred to
as an estate, and it varies from absolute ownership down
to naked possession. Nicholson Corporation v. Ferguson,
114 Okl. 10, 243 P. 195, 200; Washington Ins. Co. v. Pass,
for Use of Nalley, 64 Ga.App. 221, 12 S.E.2d 460, 461;
Gibbs v. Lester, Tex.Com.App., 41 S.W.2d 28, 29, 80 A.L.R.
431.
In another sense, "estate" designates the property (real or personal) in which one has a right
or interest; the subject-matter of ownership; the
corpus of property. Thus, we speak of a "valuable estate," "all my estate," "separate estate,"
"trust estate," etc. This, also, is its meaning in
the classification of property into "real estate" and
"personal estate." Conriertin v. Concannon, 122
Or. 387, 259 P. 290, 292; Bates v. Sparrell, 10 Mass.
323; Archer v. Deneale, 1 Pet. 585, 7 L.Ed. 272;
Den v. Snitcher, 14 N.J.L. 53.
There is no such legal entity as an "estate." Hansen v.
Stanton, 177 Wash. 257, 31 P.2d 903, 904, 92 A.L.R. 1037.
It is a convenient phrase, to identify the subject of litigation in the orphans' court, and in proceedings in rem it
may be treated as harmless superfluity, but as a designation of a party to be served with a writ it is unknown to
the law. It cannot be made the plaintiff in an action, as it
is not a person and cannot sue or be sued. In re Harrisburg Trust Co., 80 Pa.Super.Ct. 585.
The word "estate" is a word of the greatest extension,
and comprehends every species of property, real and personal. It describes both the corpus and the extent of interest. Deering v. Tucker, 55 Me. 284; Frazer v. First
Nat. Bank of Mobile, 235 Ala. 252, 178 So. 441, 444. When
used in some connections, it signifies everything of which
riches or fortune may consist. Williams v. Chicago, B. &
Q. R. Co., 155 S.W. 64, 66, 169 Mo.App. 468.
"Estate" comprehends everything a man owns, real and
personal, and ought riot to be limited in its construction,
unless connected with some other word which must necessarily have that effect. Weber v. Bardon, 92 N.J.Eq. 190,
111 A. 649, 650; Black v. Sylvania Producing Co., 105 Ohio
St. 346, 137 N.E. 904, 905.
It means, ordinarily, the whole of the property owned by
anyone, the realty as well as the personalty. Hunter v.
Husted, 45 N.C. 141; Wingard v. Harrison, 337 Ill. 387, 169
N.E. 232, 233; Miller v. Miller, 200 Iowa, 1070, 205 N.W.
870, 874, 43 A.L.R. 567; In re Quackenbush's Will, 127
Misc. 731, 217 N.Y.S. 493, 496; Jennings v. Jennings, 299
Ky. 779, 187 S.W.2d 459, 463.
643
ESTATE
A man's "estate" is that which he can sell or dispose of
at his pleasure or what he can pass on to another. Howard
v. Mitchell, 268 Ky. 429, 105 S.W.2d 128, 133.
Estates may be either absolute or conditional.
An absolute estate is a full and complete estate,
Cooper v. Cooper, 56 N.J.Eq. 48, 38 A. 198, or an estate in lands not subject to be defeated upon any
condition. In this phrase the word "absolute" is
not used legally to distinguish a fee from a lifeestate, but a qualified or conditional fee from a fee
simple. Greenawalt v. Greenawalt, 71 Pa. 483. A
conditional estate is one, the existence of which
depends upon the happening or not happening of
some uncertain event, whereby the estate may be
either originally created, or enlarged, or finally
defeated. 2 Bl.Comm. 151. Estates are also
classed as executed or executory. The former is
an estate whereby a present interest passes to and
resides in the tenant, not dependent upon any
subsequent circumstance or contingency. • They
are more commonly called "estates in possession."
2 Bl.Comm. 162. An estate where there is vested
in the grantee a present and immediate right of
present or future enjoyment. An executory estate
is an estate or interest in lands, the vesting or enjoyment of which depends upon some future contingency. Such estate may be an executory devise, or an executory remainder, which is the same
as a contingent remainder, because no present interest passes. Further, estates may be legal or
equitable. The former is that kind of estate which
is properly cognizable in the courts of common
law, though noticed, also, in the courts of equity.
1 Steph.Comm. 217. And see Sayre v. Mohney, 30
Or. 238, 47 P. 197; In re Qualifications of Electors,
19 R.I. 387, 35 A. 213. An equitable estate is an
estate an interest in which can only be enforced
in a court of chancery. Avery v. Dufrees, 9 Ohio
145. That is properly an equitable estate or interest for which a court of equity affords the only
remedy; and of this nature, especially, is the
benefit of every trust, express or implied, which
is not converted into a legal estate by the statute
of uses. The rest are equities of redemption, constructive trusts, and all equitable charges. Burt.
Comp. c. 8. Brown v. Freed, 43 Ind. 253; In re
Qualifications of Electors, 19 R.I. 387, 35 A. 213.
"Equitable estates" are in equity what legal estates are in law; the ownership of the equitable
estate is regarded by equity as the real ownership,
and the legal estate is, as has been said, no more
than the shadow always following the "equitable
estate," which is the substance. Town of Cascade
v. Cascade County, 75 Mont. 304, 243 P. 806, 808.
A contingent estate is one which depends for
its effect upon an event which may or may not
happen, as, where an estate is limited to a person
not yet born. Conventional estates are those freeholds not of inheritance or estates for life, which
are created by the express acts of the parties, in
contradistinction to those which are legal and
arise from the operation of law. A dominant estate, in the law of easements, is the estate for
the benefit of which the easement exists, or the
tenement whose owner, as such, enjoys an easement over an adjoining estate. An expectant estate is one which is not yet in possession, but the
enjoyment of which is to begin at a future time;
a present or vested contingent right of future enjoyment. Examples are remainders and reversions. A future estate is an estate which is not
now vested in the grantee, but is to commence in
possession at some future time. It includes remainders, reversions, and estates limited to commence in futuro without a particular estate to support them, which last are not good at common law,
except in the case of chattel interests. See 2 Bl.
Comm. 165. An estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination by lapse of time, or otherwise, of a precedent
estate created at the same time. Griffin v. Shepard, 124 N.Y. 70, 26 N.E. 339; Sabledowsky v. Arbuckle, 50 Minn. 475, 52 N.W. 920; A particular
estate is a limited estate which is taken out of the
fee, and which precedes a • remainder; as an estate for years to A., remainder to B. for life; or
an estate for life to A., remainder to B. in tail.
This precedent estate is called the "particular estate," and the tenant of such estate is called the
"particular tenant." 2 Bl.Comm. 165; Bunting v.
Speek, 41 Kan. 424, 21 P. 288, 3 L.R.A. 690. A
servient estate, in the law of easements, is the
estate upon which the easement is imposed or
against which it is enjoyed; an estate subjected
to a burden or servitude for the benefit of another
estate. Walker v. Clifford, 128 Ala. 67, 29 So.
588, 86 Am.St.Rep. 74; Dillman v. Hoffman, 38
Wis. 572. A settled estate, in English law, is one
created or limited under a settlement; that is, one
in which the powers of alienation, devising, and
transmission according to the ordinary rules of
descent are restrained by the limitations of the
settlement. Micklethwait v. Micklethwait, 4 C.B.,
N.S., 858. A vested estate is one in which there
is an immediate right of present enjoyment or a
present fixed right of future enjoyment; an estate as to which there is a person in being who
would have an immediate right to the possession
upon the ceasing of some intermediate or precedent estate. Flanner v. Fellows, 206 Ill. 136, 68
N.E. 1057.
Original and derivative estates. An original is
the first of several estates, bearing to each other
the relation of a particular estate and a reversion.
An original estate is contrasted with a derivative
estate; and a derivative estate is a particular interest carved out of another estate of larger extent. Prest.Est. 125.
For the names and definitions of the various
kinds of estates in land, see the different titles
below.
"Estate" and "heirs" are not equivalent terms,
Martin v. Hale, 167 Tenn. 438, 71 S.W.2d 211, 214;
Abraham v. Abraham, 245 App.Div. 302, 280 N.Y.S.
825.
"Estate" and "property" may be used synonymously, McVicar v. McVicar, 128 Kan. 394, 278
P. 36, 38; Ponsonby v. Sacramento Suburban
Fruit Lands Co., 210 Cal. 229, 291 P. 167, 168.
644
ESTATE BY THE ENTIRETY
ESTATE AT WILL. A species of estate less-than
freehold, where lands and tenements are let by
one man to another, to have and to hold at the
will of the lessor; and the tenant by force of this
lease obtains possession. 2 Bl.Comm. 145; 4 Kent,
Comm. 110; Litt. § 68; Co.Litt. 55a; Tud.L.Cas.R.
P. 10, 14. Or it is where lands are let without limiting any certain and determinate estate. 2 Crabb,
Real Prop. p. 403, § 1543.
Fast Estate
Real property. A term sometimes used in wills.
Lewis v. Smith, 9 N.Y. 502, 61 Am.Dec. 706.
Landed Estate or Property
See Landed Estate or Property.
Qualified Estate
Interests in real property which are not absolute
and unconditional including fee tail, estates on
condition, estates on limitation, and estates on conditional limitation. Carpender v. City of New
Brunswick, 135 N.J.Eq. 397, 39 A.2d 40, 43.
Real Estate
Landed property, including all estates and interests in lands which are held for life or for some
greater estate, and whether such lands be of freehold or copyhold tenure. Wharton.
As to "Homestead," "Movable," "Residuary,"
"Separate," and "Trust" estate, see those titles.
Financial or Personal Status
In a wider sense, a man's whole financial status
or condition,—the aggregate of his interests and
concerns, so far as regards his situation with reference to wealth or its objects, including debts
and obligations, as well as possessions and rights.
Thus, we speak of "debts due the estate," or say
that "A.'s estate is a stockholder in the bank."
In this sense it is a fictitious or juridical person,
the idea being that a man's business status continues his existence, for its special purposes, until its final settlement and dissolution. See Morgannelli's Estate v. City of Derby, 105 Conn. 545,
135 A. 911; In re Watson, 86 Misc. 588, 148 N.Y.S.
902, 908.
In its broadest sense, the social, civic, or political condition or standing of a person; or a
class of persons considered as grouped for social,
civic, or political purposes; as in the phrases, "the
third estate," "the estates of the realm." See 1
B1.Comm. 153.
"Estate" and "degree," when used in the sense
of an individual's personal status, are synonymous,
and indicate the individual's rank in life. State
v. Bishop, 15 Me. 122.
ESTATE AD REMANENTIAM. An estate in feesimple. Glan. 1. 7, c. 1.
ESTATE AT SUFFERANCE. The interest of a
tenant who has come rightfully into possession of
lands by permission of the owner, and continues
to occupy the same after the period for which he
is entitled to hold by such permission. 1 Washb.
Real Prop. 392; 2 Bl.Comm. 150; Co.Litt. 57b.
The estate arises where one comes into possession
of land by lawful title, but keeps it afterwards
without any title at all, and the original entry
need not have been under lease or as a tenant of
the dispossessing landlord. Malone v. Floyd, 50
Ga.App. 701, 179 S.E. 176.
The estate arises where lands or tenements are expressly demised by one person to another to be held during the
joint wills of both parties, or it may arise by implication of
law wherever one person is put in possession of another's
land with the owner's consent, but under an agreement
which does not suffice to create in the tenant an estate
of freehold or for years. Eason v. Rose, 183 Va. 359, 32 S.
E.2d 66, 68.
ESTATE BY ELEGIT. See Elegit.
ESTATE BY ENTIRETY. A form of co-ownership
of realty or personalty held by husband and wife
in which there is unity of estate, unity of possession and unity of control of entire property, and
on death of one, survivor takes estate under original conveyance. In re Cochran's Real Estate, Sel.
Orph., 66 A.2d 497, 499; In re Gallagher's Estate,
352 Pa. 476, 43 A.2d 132, 133.
ESTATE BY PURCHASE. One acquired in any
other method than descent. In re Field, 182 App.
Div. 226, 169 N.Y.S. 677, 679. See, also, Purchase.
ESTATE BY STATUTE MERCHANT. An estate
whereby the creditor, under the custom of London,
retained the possession of all his debtor's lands
until his debts were paid. 1 Greenl. Cruise, Dig.
515. See Statute Merchant.
ESTATE BY STATUTE STAPLE. See Staple.
ESTATE BY THE CURTESY. See Curtesy.
ESTATE BY THE ENTIRETY. Called also estate
in entirety, or estate by the entireties. An estate
in joint tenancy, plus the unity of the marital relation. Hoyt v. Winstanley, 221 Mich. 515, 191
N.W. 213, 214. A common-law estate, based on
the doctrine that husband and wife are one, and
that a conveyance of real property to husband and
wife creates but one estate. Klorfine v. Cole, 121
Or. 76, 252 P. 708, 709. An estate held by husband
and wife together so long as both live, and, after
the death of either, by the survivor. It is an estate held by husband and wife by virtue of a title
acquired by them jointly after marriage. Bailey
v. Smith, 89 Fla. 303, 103 So. 833, 834. A creature
of the common law created by legal fiction based
wholly on the common-law doctrine that husband
and wife are one, and hence a conveyance to husband and wife created only one estate, and each
was owner of the whole estate, and neither could
dispose of it without the consent of the other, and
on thè death of one survivor was the owner in
fee simple. Wimbush v. Danford, 292 Mo. 588,
238 S.W. 460, 466; In re Flynn, D.C.Pa., 1 F.2d
566, 567; Alexander v. Alexander, 154 Or. 317, 58
P.2d 1265, 1270, 1271.
An "estate by entireties" resembles a "joint tenancy" in
that there is a right of survivorship in both, but such an
estate is distinguishable from a joint tenancy in that the
645
ESTATE DUTY
latter may be invested in any number of natural persons
each of whom Is seized of an undivided moiety of the
whole, whereas a "tenancy by entirety" is vested in two
persons only, who in law are regarded as only one, and
each of whom becomes seized of the estate as a whole.
Heffner v. White, 113 Ind.App. 296, 45 N.E.2d 342, 346;
Carlisle v. Parker, 8 W.W.Harr. 83;188 A. 67.
ESTATE DUTY. A duty imposed in England (act
of 1894) superseding probate duty, taxing not the
interest to which some person succeeds on a death,
but the interest which ceased by reason of the
death. Hansen, Death Duties 63. It is leviable on
property which was left untouched by probate duty, such as real estate, yet it is in substance of
the same nature as the old probate duty.
ESTATE FOR LIFE. See Life Estate.
ESTATE FOR YEARS. A species of estate less
than freehold, where a man has an interest in
lands and tenements, and a possession thereof, by
virtue of such interest, for some fixed and determinate period of time; as in the case where lands
are let for the term of a certain number , of years,
agreed upon between the lessor and the lessee, and
the lessee enters thereon. 1 Steph.Comm. 263, 264.
Blackstone calls this estate a "contract" for the
possession of lands or tenements for some determinate period. 2 Bl.Comm. 140. See Hutcheson
v. Hodnett, 115 Ga. 990, 42 S.E. 422; Harbottle v.
Central Coal & Coke Co., 134 Ark. 254, 203 S.W.
1044, 1046; 2 Crabb, R.P. § 1267; Bac.Abr. Leases;
Wms.R.P. 195. Such estates are frequently called
terms.
"Estates for years" embrace all terms limited to endure
for a definite and ascertained period, however short or
long the period may be; they embrace terms for a fixed
number of weeks or months or for a single year, as well as
for any definite number of years, however great. Guy v.
Brennan, 60 Cal.App. 452, 213 P. 265, 267. Compare Metcalf Auto Co. v. Norton, 119 Me. 103, 109 A. 384.
ESTATE FROM PERIOD TO PERIOD. An estate continuing for successive periods of a year,
or successive periods of a fraction of a year, unless it is terminated. Pitney-Bowes Postage Meter
Co. v. United States, D.C.Conn., 57 F.Supp. 365, 366.
ESTATE FROM YEAR TO YEAR. An example of
an estate for years. It is of later origin and is not
found in Littleton (see § 381). It exists in cases
where the parties stipulate for it, and also where
the parties by their conduct have placed themselves in the relation of landlord and tenant without adopting any other term. If a tenar4 has
been allowed to hold over after the expiratibn of
his term in such a way as to preclude the possibility of his becoming a tenant on sufferance, it is
a tenancy from year to year. Jenks, Mod.Land
Law 88. See, also, Odger, C.L. 869; 7 Q.B. 958.
It was originally a development of a tenancy at
will, by which the tenancy was terminable only
at the time of the year at which it began, and on
notice.
ESTATE IN COMMON. An estate in lands held
by two or more persons, with interests accruing
under different titles; or accruing under the same
title, but at different periods; or conferred by
words of limitation importing that the grantees
are to take in distinct shares. 1 Steph.Comm. 323.
See Tenancy in qommon. An estate held in joint
possession by two or more persons at the same
time by several and distinct titles. 1 Washb.R.P.
415; 2 Bla.Comm. 191; 1 Pres.Est. 139.
ESTATE IN COPARCENARY. See Coparcenary.
ESTATE IN DOWER. See Dower.
ESTATE IN EXPECTANCY. One which is not
yet in possession, but the enjoyment of which is
to begin at a future time; an estate giving a present or vested contingent right of future enjoyment. One in which the right to pernancy of the
profits is postponed to some future period. Such
are estates in remainder and reversion. Underhill
v. R. Co., 20 Barb. 455; Fenton v. Miller, 108 1Vrich.
246, 65 N.W. 966; Ayers v. Trust Co., 187 Ill. 42,
58 N.E. 318.
ESTATE IN FEE SIMPLE. See Fee Simple.
ESTATE IN FEE-TAIL. See Tail, Estate in.
ESTATE IN JOINT TENANCY. See Tenancy.
ESTATE IN LANDS. Property one has in lands,
tenements or hereditaments, or conditions or. circumstances in which tenant stands as to his property. Tallman v. Eastern Illinois & Peoria R. Co.,
379 Ill. 441, 41 N.E.2d 537, 540.
ESTATE IN REMAINDER. See Remainder.
ESTATE IN REVERSION. See Reversion.
ESTATE IN SEVERALTY. An estate held by a
person in his own right only, without any other
person being joined or connected with him in point
of interest, during. his estate. This is the most
common and usual way of holding an estate. 2 Bl.
Comm. 179; Cruise, Dig. tit. 18, c. 1, § 1.
ESTATE IN VADIO. An estate in gage or pledge.
2 Bl.Comm. 157; 1 Steph.Comm. 282. See Mortgage.
ESTATE LESS THAN FREEHOLD. An estate
for years, estate at will, or estate at sufferance.
Fowler v. Marion & Pittsburg Coal Co., 315 Ill. 312,
146 N.E. 318, 319. See Estate of Freehold.
ESTATE OF FREEHOLD. See Freehold.
ESTATE OF INHERITANCE. An estate which
may descend to heirs. 1 Washb.R.P. 51; Administration & Trust Co. v. Catron, 171 Tenn. 268, 102
S.W.2d 59, 60. A species of freehold estate in
lands, otherwise called a "fee," where the tenant
is not only entitled to enjoy the land for his own
life, but where, after his death, it is cast by the
law upon the persons who successively represent
him in perpetuum, in right of blood, according to
a certain established order of descent. 1 Steph.
Comfn. 218; Litt. § 1; Nellis v. Munson, 108 N.Y.
453, 15 N.E. 739; Roulston v. Hall, 66 Ark. 305,
50 S.W. 690, 74 Am.St.Rep. 97; George v. George,
51 Ohio App. 169, 200 N.E. 142, 143.
Estates of freehold are divided into those of inheritance
and those not of inheritance. All estates of inheritance in
tenements are freehold; but, since freeholds embrace estates for life and those of indefinite duration which may
646
ESTIMATE
endure for life, all freeholds are not "estates of inheritance." Beirl v. Columbia County, 73 Or. 107, 144 P. 457,
460; Crabb, R.P. § 945.
tate having a qualification annexed to it, by which
it may, upon the happening of a particular event,
be created, or enlarged, or destroyed. 4, Kent,
Comm. 121. Uri' red States v. 1,010.8 Acres, More
or Less, Situate in Sussex County, Del., D.C.Del.,
56 F.Supp. 120, 127.
ESTATE ON CONDITIONAL LIMITATION.
An estate conveyed to one person so that, upon occurrence or failure of occurrence of some contingent event, whether conditional or limitative, the
estate shall depart from original grantee and pass
to another. Carpender v. City of New Brunswick,
135 N.J.Eq. 397, 39 A.2d 40, 43.
ESTATE ON LIMITATION. An estate originated
by the use of words denoting duration of time,
such as while, during, so long as, and the like and
when designated limitative event happens, such
estate ends naturally without any re-entry and
property reverts to grantor. Carpender v. City
of New Brunswick, 135 N.J.Eq. 397, 39 A.2d 40,
43. Sometimes referred to as "base fee", "qualified fee", "determinable fee", or "fee simple defeasible". Lehigh Valley R. Co. v. Chapman, 171
A.2d 653, 657, 35 N.J. 177.
ESTATE PUR AUTRE VIE. See Pur Autre Vie.
ESTATE SUBJECT TO A CONDITIONAL LIMITATION. The .distinction between an estate upon
condition subsequent and an "estate subject to a
conditional limitation" is that in former words
creating condition do not originally limit term, but
merely permit its termination upon happening of
contingency, while in latter words creating it limit
continuation of estate to time preceding happening
of contingency. Johnson v. Lane, 199 Ark. 740,
135 S.W.2d 853, 866.
ESTATE TAIL. See Tail, Estate in.
ESTATE TAIL, QUASI. When a tenant for life
grants his estate to a man and his heirs, as these
words, though apt and proper to create an estate
tail, cannot do so, because the grantor, being only
tenant for life, cannot grant in perpetuum, therefore they are said to create an estate tail quasi,
or improper. Brown.
ESTA'T'E TAX. An excise tax upon privilege of
transferring or transmitting property by reason of
death and is not tax on property itself. Friend
v. Commissioner of Internal Revenue, C.C.A.7, 119
F.2d 959, 960; In re Vanderbilt's Estate, 281 N.Y.
297, 22 N.E.2d 379, 390. An "estate tax" taxes,
not the interest to which some person succeeds on
a death, but the interest which ceases by reason of
the death; while the "inheritance tax" is based
on the interest to which the living person succeeds.
In re Ogden's Estate, 209 Wis. 162, 244 N.W. 571,
573.
It is an "estate tax" when the tax is required to be paid
on the entire net estate before it is divided into its several
parts to be distributed. State Tax Commission v. Backman, 88 Utah 424, 55 P.2d 171, 174.
ESTATE UPON CONDITION. An estate in lands,
the existence of which depends upon the happening or not happening of some uncertain event,
whereby the estate may be either originally created, or enlarged, or finally defeated. 2 Bl.Comm.
151; 1 Steph.Comm. 276; Co. Litt. 201a. An es-
ESTATE UPON CONDITION EXPRESSED. An
estate granted, either in fee-simple or otherwise,
with an express qualification annexed, whereby
the estate granted shall either commence, be enlarged, or be defeated upon performance or breach
of such qualification or condition. 2 Bl.Comm.
154. An estate which is so expressly defined and
limited by the words of its creation that it cannot
endure for any longer time than till the contingency happens upon which the estate is to fail. 1
Steph.Comm. 278.
ESTATE UPON CONDITION IMPLIED. An estate having a condition annexed to it inseparably
from its essence and constitution, although no
condition be expressed in words. 2 Bl.Comm. 152;
4 Kent, Comm. 121.
ESTATES OF THE REALM. The lords spiritual,
the lords temporal, and the commons of Great
Britain. 1 Bl.Comm. 153. Sometimes called the
"three estates." Inasmuch as the lords spiritual
have no separate assembly or negative hi their
political capacity, some authorities reduce the estates in Great Britain to two, the lords and commons. Webster, Dict.
Generally in feudal Europe there were three estates, the
clergy, nobles, and commons. In England (until about the
14th century) the three estates of the realm were the clergy, barons, and knights. In legal practice the lords spiritual and lords temporal are usually collectively designated
under the one name lords. Webster, Dict.
ESTENDARD, ESTENDART, or STANDARD. An
ensign for horsemen in war.
ESTER. A compound ether derived from oxygenated acid. E. I. Du Pont De Nemours & Co. v.
Byrnes, D.C.N.Y., 1 F.R.D. 34, 36.
ESTER IN JUDGMENT. L. Fr. To appear before a tribunal either as plaintiff or defendant.
Kelham.
ESTIMATE. A valuing or rating by the mind,
without actually measuring, weighing, or the like.
City of Tulsa v. Weston, 102 Okl. 222, 229 P. 108,
122. A rough or approximate calculation only.
Bair v. Montrose, 58 Utah 398, 199 P. 667, 669;
United States v. Foster, C.C.A.Iowa, 131 F.2d 3, 7;
P. M. Hennessy Const. Co. v. Hart, 141 Minn. 449,
170 N.W. 579, 598. Thus, a census is a finding of
the population, not an "estimate." State ex rel.
Reynolds v. Jost, 265 Mo. 51, 175 S.W. 591, 597,
Ann.Cas.1917D, 1102.
This word is used to express the mind or judgment of
the speaker or writer on the particular subject under consideration. It implies a calculation or computation, as to
estimate the gain or loss of an enterprise. People v. Clark,
37 Hun, N.Y., 203; New Orleans Terminal Co. v. Dixie
Rendering, La.App., 179 So. 98, 100.
As used in a contract for the sale of an estimated quantity of goods, "estimated" may mean practically the same
as "more or less." Robbins v. Hill, Tex.Civ.App., 259 S.W.
647
ESTIMATED
1112, 1115. Generally, the word "estimated" indicates that
a statement of quantity is a matter of description, and not
of the essence of the contract. Biglione v. Bronge, 192 Cal.
167, 219 P. 69, 70.
ESTIMATED COST. The "estimated cost" of a
building means the reasonable cost of a building
erected in accordance with the plans and specifications referred to, and not necessarily the amount
of some actual estimate made by a builder, nor
an estimate agreed upon by the parties, nor yet
an estimate or bid accepted by the defendant.
New Orleans Terminal Co. v. Dixie Rendering, La,
App., 179 So. 98, 100.
ESTOP. To stop, bar, or impede; to prevent; to
preclude. Co.Litt 352a; Olsgard v. Lemke, 32 N.
D. 551, 156 N.W. 102, 103. See Estoppel,
ESTOPPEL. A man's own act or acceptance
stops or closes his mouth to allege or plead the
truth. Caulfield v. Noonan, 229 Iowa 955, 295 N.
W. 466, 471; Williams v. Edwards, 163 Okl, 246,
22 P.2d 1026.
An estoppel arises when one is concluded and forbidden
by law to speak against his own act or deed. Gural v.
Engle, 128 N,J.L, 252, 25 A.2d 257, 261; an inconsistent
position, attitude or course of conduct may not be adopted
to loss or injury of another. Brand v. Farmers Mut. Protective Ass'n of Texas, Tex.Civ.App., 95 S.W.2d 994, 997.
Estoppel is a bar or impediment which precludes allegation or denial of a certain fact or state of facts, in consequence of previous allegation or denial or conduct or admission, or in consequence of a final adjudication of the
matter in a court of law, Lewis v. King, 157 La. 718, 103
So. 19, 22; Agoodash Achim of Ithaca v. Temple Beth147 Misc, 405, 263 N.Y.S. 81; Chernick V. National.
Surety Co.: 50 R.I. 419, 148 A. 418, 419 ; an equitable doctrine to accomplish justice, Sisson v. Swift, 243 Ala. 289,
9 So.2d 891, 903; Elowe v. Superior Fire Ins. Co., 307 Ill,
App, 569, 30 N.E.2d 953, 958; preclusion by act or conduct
from asserting right which might otherwise have existed.
Reynolds v. Travelers' ins. Co. 176 Wash. 36, 28 P.2d 310,
314; Tucker v. Brown, 20 Wash.2d 740, 150 P.2d 604, 652;
Preclusion from alleging or denying fact because of previous action, inaction, allegation, or denial. Steph.P1. 239;
Spear v. Farwell, 5 Cal.App.2d 111, 42 P.2d 391, 392;
Scholl v. Scholl, 123 Ohio St. 1, 173 N.E. 305, 306; preclusion from denying truth of fact which has in contemplation of law become settled by acts and proceedings of judicial or legislative officers, or by act of party himself,
either by conventional writing or by representations, express or implied in pais, May v. City of Kearney, 145 Neb.
475, 17 N.W.2d 448, 458; shield for defense but not a
weapon of attack, United States, to Use of Noland Co. v.
Maryland Casualty Co., D.C.Md., 38 F.Supp. 479, 484. It
is available only for protection, and cannot be used as a
weapon of assault. Stanio V. Berner Lohne Co., 127 Conn,
431, 17 A.2d 502, 504; It operates to put party entitled to
its benefits in same position as if thing represented were
true. May v. City of Kearney, 145 Neb. 475, 17 N.W.2d
448, 458.
Under law of "estoppel" where one of two innocent persons must suffer, he whose act occasioned loss must bear
it. Buxbaum v. Assicurazioni General!, 175 Misc. 785, 25
N.Y.S.2d 357, 360; Sackenreuther v. Winston, Tex.Civ.
App., 137 S.W.2d 93, 96.
Elements or essentials of estoppel include change of position of parties so that party against whom estoppel is invoked has received a profit or benefit or party invoking
estoppel has changed his position to his detriment, Wertz
v. Shane, 216 Iowa 768, 249 N.W. 661; Lebold v. Inland
Steel Co., C.C.A.I11., 125 F.2d 369, 375; Garmon v. Fitzgerald, 168 Miss. 532, 151 So. 726, 728; circumstances such
that a knowledge of truth is necessarily imputed to party
estopped, Froslee v. Sonju, 209 Minn. 522, 297 N.W. 1, 3, 4;
conduct intended to deceive or of such nature that reasonably prudent person would have been deceived, Cellized
Floors v. Glens Falls Indemnity Co. of New York, 9 N.J.
Misc. 1111, 156 A. 845, 846; Agnew v. Mullenix, La, App.,
11 So.2d 106, 107; direct or immediate influence Ion party
claiming benefit, of estoppel, Stanolind Oil & Gas Co. v.
Midas Oil Co., Tex.Civ.App., 173 S.W.2d 342, 345; false
representation or wrongful silence or concealment, Noxon
v. Cockburn, Tex.Civ.App., 147 S.W.2d 872, 875; Weber v.
Fohl, 111 Ind.App. 388, 41. N.E.2d 648, 650, 651; Van Antwerp v. United States, C.C.A.Cal., 92 F.2d 871, 875; inducing another to alter his position or to do that which he
would not otherwise have done, Babcock v. McKee, S.D.,
18 N.W.2d 750, 754; Wellsville East Field Irr. Co. v.
Lindsay Land & Livestock Co., 104 Utah 448, 137 P.2d 634,
647; Albermarle County V. Massey, 183 Va. 310, 32 S.E.2d.
228, 230; intent or reasonable expectation of party estopped that other would act, Bank of Sutton v. Skidmore, 113
' W.Va. 25, 167 S.E. 144, 146; Mercer Casualty Co. v. Lewis,
41 Cal.App.2d 918, 108 P.2d 65, 67; knowledge of facts by
party to be estopped, Caveney v. Caveney, 234 Wis. 637, 291
N.W. 818, 824; In re Dimon's Estate, Sur., 32 N.Y.S.2d
239, 243; lack of knowledge and means of knowledge by
party claiming estoppel, Ainscow v. Alexander, Der.Super.,
39 A.2d 54, 60; Froslee v. Sonju, 209 Minn, 522, 297 N.W.
1, 3, 4; misleading of one party by another party, Williams
,v. Middle-West Roads Co., 295 Ky. 648, 175 S.W.2d 136, 138;
United States, to Use of Noland Co. v. Marfand Casualty
Co., D.C.Md., 38 F.Supp. 479, 484; prejudice or loss or injury to party invoking estoppel, Vinton V. Atlas Assur. Co.,
107 Vt. 272, 178 A. 909, 912; Commission v, Shell Oil Co.,
Tex.Civ.App., 170 S.W.2d 568, 570; Hooper v. Bail, 133 Me.
412, 179 A. 404, 406; reliance by one party on act, word or
conduct of other party, Gosney v. Metropolitan Life Ins.
Co., C.C.A.Mo., 114 F.2d 649, 652; In re Sarvey's Estate,
206 Iowa 527, 219 N.W. 318, 321; right of party asserting
estoppel to believe party estopped intended that his conduct should be acted upon, Lusitanian-American Development Co. v. Seaboard Dairy Credit Corporation, 1 Ca1.2d
121, 34 P.2d 139, 142; wrongdoing on part of person sought
to be estopped, Sovereign Camp, W. 0. W., v. Johnson,
Tex.Civ.App., 64 S.W.2d 1084, 1087. Nor on mere delay in
asserting a claim, Peyrefitte v. Union Homestead Ass'n, La.
App., 185 So. 693, 695.
Nor on errors of judgment, Northwestern Nat. Bank v.
Commonwealth, 345 Pa. 192, 27 A.2d 20, 23; nor on error of
law, United States v. Du Pont, D.C.Del., 47 F.Supp. 894,
897.
Estoppel is or may be based on acceptance of benefits,
Rhodus Geatley, 317 Mo. 397, 147 S.W.2d 631, 637, 638,
639; Harjo v. Johnston, 187 Okl. 561, 104 P.2d 985, 992, 998;
acknowledgments of matters of fact but not acknowledgments or statements of propositions of law, McDonald v.
Richard, 203 La. 155, 13 So.2d 712, 718; acquiescence, In re
Kennedy's Estate, 321 Pa. 225, 183 A. 798, 801; acts done
under or in performance of contract, Jackson v. United
Gas Public Service Co., 196 La. 1, 198 So, 633, 640; Finch
v. Smith, 177 Okl. 307, 58 P.2d 850, 851; actual or constructive fraudulent conduct, Peterson v. Hudson Ins. Co., 41
Ariz. 31, 15 P.2d 249, 252; adjudication, Kunkel v. Eastern
Iowa Light & Power Co-op., 232 Iowa 649, 5 N.W.2d 899,
903; Citizens' Loan & Trust Co. of Washington, Ind. v.
Sanders, 99 Ind.App. 77, 187 N.E. 396, 398; admissions or
denials by which another is induced to act to his injury,
New York Life Ins. Co. v. Oates, 122 Fla, 540, 166 So. 269,
276; Wabash Drilling Co. v. Ellis, 230 Ky. 769, 20 S.W.2d
1002, 1004; agreement on and settlement of facts by force
of entering into contract, Masterson v. Bouldin, Tex.Civ.
App., 151 S.W.2d 301, 307; In re Schofield's Estate, 101
Colo. 443, 73 P.2d 1381; assertion of facts on which another relies, Fedas v. Insurance Co. of State of Pennsylvania, 300 Pa. 555, 151 A. 285, 287; assumption of position
which, if not maintained, would result in injustice to another, Harvey v. J. P. Morgan & Co., 166 Misc. 455, 2 N.Y.
5.2d 520; concealment of facts, Greer v. Franklin Life Ins.
Co., Tex.Civ.App., 109 S.W.2d 305, 315; Rosser v. Texas
Co., 173 Okl. 309, 48 P.2d 327, 330; conduct or acts amounting to a representation or a concealment, Spradling v.
Spradling, 118 W.Va. 308, 190 S.E. 537, 540; consent to
copyright infringement, whether express or implied from
long acquiescence with knowledge of the infringement,
Edwin L. Wiegand Co. v. Harold E. Trent Co., C.C.A.Pa.,
122 F.2d 920, 925; election between rights or remedies,
Hartley v. Hartley, 173 Ga. 710, 161 S.E. 358, 360; Mason
& Mason v. Brown, Tex.Civ.App., 182 S.W.2d 729, 733;
fault of party estopped, Conner v. Caldwell, 208 Minn. 502,
294 N.W. 650, 653; inaction, Utah State Building Commis-
sion, for Use and Benefit of Mountain States Supply Co., v.
Great American Indemnity Co., 105 Utah 11, 140 P.2d 763,
648
ESTOPPEL
771, 772; Hankins v. Waddell, 26 Tenn.App. 71, 167 S.W.
2d 694, 696; injury resulting from parties' conduct, In re
Bastanchury Corporation, C.C.A.Cal., 66 F.2d 653, 657; innocent misrepresentation, Countway v. Commissioner of
Internal Revenue, C.C.A.1, 127 F.2d 69, 76; lathes, Oak
Lawn Cemetery of Baltimore County v. Baltimore County
Com'rs, 174 Md. 356, 198 A. 600, 605, 115 A.L.R. 1478;
language or conduct which has induced another to act,
French Market Ice Mfg. Co. of New Orleans v. Dalton, 15
La.App-. 115, 130 So. 122, 123; Brown v. Federal Land
Bank of Houston, Tex.Civ.App., 180 S.W.2d 647, 652;
matter of record, Coral Realty Co. v. Peacock Holding Co.,
103 Fla. 916, 138 So. 622, 624; misrepresentation, Cushing
v. United States, D.C.Mass., 18 F.Supp. 83, 85; Rhoads v.
Rhoads, 342 Mo. 934, 119 S.W.2d 247, 252; negligence,
Postal v. Home State Bank for Savings, 284 Mich. 220, 279
N.W. 488, 491; Fisher v. Beckwith, 30 Wis. 55, 11 Am.
Rep. 546; omission to act, West v. Cleveland Ry. Co.,
Ohio App., 58 N.E.2d 799, 801; prejudice, Alderman v.
Town of West Haven, 124 Conn. 391, 200 A. 330, 333; prior
judgment, Morrell v. Towle, 141 Neb. 370, 3 N.W.2d 655,
664; Kelliher v. Stone & Webster, C.C.A.Fla., 75 F.2d 331,
332; Promise of future performance, Albachten v. Bradley, 212 Minn. 359, 3 N.W.2d 783, 785; provisions of a deed,
Carson v. Cochran, 52 Minn. 67, 53 N.W. 1130; Robert v.
O'Connell, 269 Mass. 532, 169 N.E. 487, 488; public policy,
Ervin v. City of Pittsburgh, 339 Pa. 241, 14 A.2d 297, 300;
Bloomfield Village Drain Dist. v. Keefe, C.C.A.Mich., 119
F.2d 157, 163, 165; representation or concealment of facts,
Kerestury v. Elkhart Packing Co., 108 Ind.App. 148, 27 N.
E.2d 383, 385; Albermarle County v. Massey, 183 Va. 310,
32 S.E.2d 228, 230; silence, Rone v. Sawrky, 197 Ark. 472,
123 S.W.2d 524, 526, 527; Brown v. Brown, 347 Mo. 45, 146
S.W.2d 553, 555.
Estoppels are sometimes said to be of three kinds: (1)
by deed; (2) by matter of record; (3) by matter in pais.
The first two are also called legal estoppels, as distinguished from the last kind, known as equitable estoppels.
Acts and Declarations
An "estoppel by acts and declarations" is such
as arises from the acts and declarations of a person by which he designedly induces another to alter his position injuriously to himself. Brauch V.
Peking, 219 Iowa 556, 258 N.W. 892,
Adjudication Distinguished
"Adjudication" and an "estoppel" from relitigating
things are different in that there is an adjudication when
a suit is repeated, but that there may be an estoppel because some fact which is controlling in both actions was
litigated and set at rest in first action. Kunkel v. Eastern
Iowa Light & Power Co-Op., 232 Iowa 649, 5 N.W.2d 899,
903.
Common Law
"Estoppel at common law" includes estoppel by record,
estoppel by deed, and certain cases of estoppel in pais
which are recognized in courts of law. Thomas v. Conyers,
198 N.C. 229, 151 S.E. 270, 273.
Election Distinguished
"Election" differs from an "estoppel in pais" in that in
order to be effective it need not be acted upon by the other
party by way of a detrimental change of his position,
provided the election is a decisive one. Phillips v. Rooker,
134 Tenn. 457, 184 S.W. 12, 14.
Estoppel Against Estoppel
Doctrine that two estoppels may destroy each
other, or that one estoppel may set another at
large. Shean v. United States Fidelity & Guaranty Co., 263 Mich. 535, 248 N.W. 892, 893.
In wife's divorce suit, evidence showed that wife in
procuring void Nevada divorce decree was under husband's
duress, domination, and compulsion, and hence there arose
an "estoppel against estoppel" destroying each other, and
wife was not barred from setting up invalidity of Nevada
decree. Lippincott v. Lippincott, 141 Neb. 186, 3 N.W.2d
207, 215, 140 A.L.R. 901.
Fraud
Estoppel is a penalty paid by perpetrator of
wrong by affirmative act which, though without
fraudulent intent, may result in legal fraud on
another. Harris v. Prince, Tex.Civ.App., 98 S.W.•
2d 1022, 1026.
A judgment procured by fraud may not be used as the
basis of an "estoppel". Seubert v. Seubert, 68 S.D. 195,
299 N.W. 873, 875; Actual or intended fraud is not an essential element of estoppel, but estoppel arises when
omission to speak is an actual or constructive fraud. Kelley-Springfield Tire Co. v. Stein, 163 Misc. 393, 297 N.Y.S.
22, 26. An act done which cannot be contravened without
fraud may be basis of estoppel, Tradesmens Nat. Bank of
New Haven v. Minor, 122 Conn. 419, 190 A. 270, 272, An essential element of "equitable estoppel" is fraudulent intent. Fleishbein v. Western Auto Supply Agency, 19 Cal.
App.2d 424, 65 P.2d 928; An estoppel does not require a
showing of fraudulent intent. New Jersey Suburban Water
Co. v. Town of Harrison, 122 N.J.L. 189, 3 A.2d 623, 625,
626, 627; An estoppel may arise although there is no designed fraud. Laraway v. First Nat. Bank of La Verne, 39
Cal.App.2d 718, 104 P.2d 95, 101; Estoppel is an equitable
principle dependent on fraud. Volk v. City of New York,
259 App.Div. 247, 19 N.Y.S.2d 53, 60.
Intent
"Estoppel" in its broadest sense is penalty paid
by one perpetrating wrong by known fraud or by
affirmative act which, though without fraudulent
intent, may result in legal fraud on another. Harris v. Prince, Tex.Civ.App., 98 S.W.2d 1022, 1026.
Actual or intended fraud is not an essential element of
estoppel but estoppel arises when omission to speak is an
actual or constructive fraud. Kelley-Springfield Tire Co.
v. Stein, 163 Misc. 393, 297 N.Y.S. 22, 26. Elements of
equitable, estoppel are representations intentionally made
under such circumstances as show that party making them
intended, or might reasonably have anticipated, that party to whom they are made, or to whom they are communicated, will rely and act on them as true, Crane Co. of
Minnesota v. Advance Plumbing & Heating Co., 177 Minn.
132, 224 N.W. 847, 848. An essential element of equitable
estoppel is fraudulent intent but careless and culpable
conduct is equivalent to intent to deceive. Fleishbein v.
Western Auto Supply Agency, 19 Cal.App.2d 424, 65 P.2d
928. An estoppel arises when one by acts, representations,
admissions or silence intentionally induces another to
change his position for the worse. Smith v. Vara, 136
Misc. 500, 241 N.Y.S. 202, 209; American Exchange Nat.
Bank v. Winder, 198 N.C. 18, 150 S.E. 489, 491. An estoppel
does not require a showing of fraudulent intent. New
Jersey Suburban Water Co. v. Town of Harrison, 122 N.J.
L. 189, 3 A.2d 623, 625, 626, 627. An estoppel may arise
where there is no intent to mislead. Mancini v. Thomas,
113 Vt. 322, 34 A.2d 105, 109.
Legal Title to Land
Estoppel affecting legal title to land requires
conduct amounting to knowing representation or
concealment relied on by other party changing his
position for the worse. Crane v. Esmond, 214
Wis. 571, 253 N.W. 780.
It requires conduct amounting to representation or concealment of material facts known to party estopped at time
of conduct, or at least under circumstances necessarily imputing knowledge thereof, and truth concerning such facts
must be unknown to other party claiming benefit of estoppel, with further requirement that conduct was done
with intention or expectation that it would be acted on,
and other party led to act thereon in reliance on conduct
so as to change his position for the worse. Jacksonville
Public Service Corporation v. Calhoun Water Co., 219 Ala.
616, 123 So. 79, 81, 64 A.L.R. 1550.
649
ESTOPPEL
Misrepresentation
See Representation, Estoppel By.
Recital
Pleading
Pleader must allege and prove not only that
person sought to be estopped made misleading
statements and representations but that pleader
actually believed and relied on them and was misled to his injury thereby. Stanolind Oil & Gas Co.
v. Midas Oil Co., Tex.Civ.App., 173 S.W.2d 342,
345.
The theory of "estoppel by recital" is that holder
of instrument is entitled to rely upon facts recited therein. Bloomfield Village Drain Dist. v.
Keefe, C.C.A.Mich., 119 F.2d 157, 163, 165.
Res Judicata Distinguished
A prior judgment between same parties, which
is not strictly res judicata because based upon different cause of action, operates as an "estoppel"
only as to matters actually in issue or points controverted. JEtna Life Ins. Co. of Hartford, Conn.,
v. Martin, C.C.A.Ark., 108 F.2d 824, 827; Cunningham v. Oklahoma City, 188 Okl. 466, 110 P.2d 1102,
1104.
A plea, replication, or other pleading, which, without
confessing or denying the matter of fact adversely alleged,
relies merely on some matter of estoppel as a ground for
excluding the opposite party from the allegation of the
fact. Steph.P1. 219; 3 Bl.Comm. 308.
A plea which neither admits nor denies the facts alleged
by the plaintiff, but denies his right to allege them. Gould,
Pl. c. 2, § 39.
A special plea in bar, which happens where a man has
done some act or executed some deed which precludes him
from averring anything to the contrary. 3 Bl.Comm. 308.
A pleader is not "estopped" by judicial allegations which
have neither deceived nor damaged anyone. Thomas v.
Leonard Truck Lines, La.App., 7 So.2d 753, 756; Hearon
v. Davis, La.App., 8 So.2d 787, 791.
Person pleading estoppel must have been misled to his
injury by acts of omission or commission of him who is
sought to be estopped. Selber Bros. v. Newstadt's Shoe
Stores, 203 La. 316, 14 So.2d 10; 13.
Plea of estoppel lacks merit unless it appears that opposing litigant has been misled, deceived or has suffered
damage from the allegations of pleader. Mounger v. Ferrell, La.App., 11 So.2d 56, 60.
Plea of "estoppel" was fatally defective where there was
no statement that defendant relied on course alleged to
have been taken by plaintiff. Sertic v. Roberts, 171 Or. 121,
136 P.2d 248, 251.
Statements in pleading in former action which are merely assertions of conclusion of law do not constitute "estoppel by pleading." Smith v. Saulsberry, 157 Wash. 270,
288 P. 927, 930.
Doctrine that issues decided may not be drawn in question in any future action between same parties or their
privies, whether cause of action in the two actions be
identical or different, is based on "estoppel" rather than
upon "res judicata". Norwood v. McDonald, 142 Ohio St.
299, 52 N.E.2d 67, 71, 74; In a later action upon a different
cause of action a judgment operates as an "estoppel" only
as to such issues in second action as were actually determined in the first action. Lorber v. Vista Irr. Dist., C.
C.A.Cal., 127 F.2d 628, 634. The doctrine of "res judicata"
is a branch of law of "estoppel". Krisher v. McAllister, 71
Ohio App. 58, 47 N.E.2d 817, 819; The plea of "res judicata"
is in its nature an "estoppel" against the losing party
from again litigating matters involved in previous action,
but the plea does not have that effect as to matters transpiring subsequently. Fort Worth Stockyards Co. v. Brown,
Tex.Civ.App., 161 S.W.2d 549, 555. Where a second action
between same parties involves different cause of action,
under doctrine of "res judicata", judgment in first action
operates as an "estoppel" only as to those matters which
were in issue and actually litigated. International Brotherhood of Electrical Workers v. Bridg,eman, 179 Va. 533, 19
S. E.2d 667, 670.
Ratification Distinguished
The substance of "estoppel" is the inducement
of another to act to his prejudice. The substance
of "ratification" is confirmation after conduct.
Citizens State Bank of Thedford v. United States
Fidelity & Guaranty Co. of Baltimore, Md., 130
Neb. 603, 266 N.W. 81, 84, 103 A.L.R. 1401; Cudahy
Bros. Co. v. West Michigan Dock & Market Corporation, 285 Mich. 18, 280 N.W. 93, 95; Gillihan v.
Morguelan, 299 Ky. 671, 186 S.W.2d 807, 809.
Suppression
The doctrine of "estoppel by concealment and
suppression" applies only where there has been
reduction to practice of invention. Bogoslowsky
v. Huse, 142 F.2d 75, 76, 31 C.C.P.A. (Patents) 1034.
By ratification party is bound because he intended to be,
while under "estoppel" he is bound because other party
will be prejudiced unless the law treats him as legally
bound. Carlile v. Harris, Tex.Civ.App., 38 S.W.2d 622,
624; doctrine of ratification is based on fact of intention
to carry out terms of certain agreement, while doctrine of
estoppel is based on right of party to deny existence of
agreement by reason of misleading acts. B. F. C. Morris
Co. v. Mason, 171 Okl. 589, 39 P.2d 1, 3; Ratification requires no change of position or prejudice. Texas & Pacific
Coal & Oil Co. v. Kirtley, Tex.Civ.App., 288 S.W. 619, 622.
Ratification is retroactive and validates all of the act involved, while estoppel extends only to so much of the act
as is affected by the conduct working the estoppel. Woodworth v. School Dist. No. 2, Stevens County, 92 Wash. 456,
1.59 P. 757, 760. Generally speaking, "ratification" applies
to a formal declaration of the approval of another's act,
whereas "estoppel" is where the party is bound by his
own act, but the legal effect is the same. Zenos v. BrittenCook Land & Live Stock Co., 75 Cal.App. 299, 242 P. 914,
917; Marian Sa y . Bank v. Leahy, 200 Iowa 220, 204 N.W.
156, 458.
Stare Decisis
The doctrine of "stare decisis" is but an application of the doctrine of "estoppel." Brown v.
Rosenbaum, 175 Misc. 295, 23 N.Y.S.2d 161, 171;
The doctrine of "stare decisis" involves no element
of "estoppel". Joslin v. State, Tex.Civ.App., 146
S.W.2d 208, 212.
Waiver Distinguished
Waiver is intentional relinquishment of a known
right. Globe Indemnity Co. v. Cohen, C.C.A.Pa.,
106 F.2d 687, 691; Beatty v. Employers' Liability
Assur. Corporation, 106 Vt. 25, 168 A. 919, 922;
but may be more narrowly and accurately defined
as intended giving up of known privilege or power. John Alt Furniture Co. v. Maryland Casualty.
Co., C.C.A.Mo., 88 F.2d 36, 41. Waiver is voluntary and intentional. Insurance Co. of North
America v. Williams, 42 Ariz. 331, 26 P.2d 117, 119;
Sentinel Fire Ins. Co. v. McRoberts, 50 Ga.App.
732, 179 S.E. 256. Waiver is voluntary surrender
or relinquishment of some known right, benefit or
advantage; estoppel is the inhibition to assert
it. Benson v. Borden, 174 Md. 202, 198 A. 419,
427, 428; Johnston v. Columbian Nat. Life Ins.
Co., 130 Me. 143, 154 A. 79, 80.
650
ESTRAY
Acts, conduct or declarations insufficient to create a
technical estoppel may create a waiver. Benson v. Borden,
174 Md. 202, 198 A. 419, 427, 428. Acts or conduct of only
one of the parties is involved in waiver while an estoppel
may arise where there is no intent to mislead. Beatty v.
Employers' Liability Assur. Corporation, 106 Vt. 25, 168 A.
919, 922; Benson v. Borden, 174 Md. 202, 198 A. 419, 427,
428. Actual intent to abandon or surrender right is essential in waiver and immaterial in estoppel. Equitable
Life Assur. Soc. of U. S. v. Pettid, 40 Ariz. 239, 11 P.2d
833, 838; Boyce v. Toke Point Oyster Co., Consol., 145 Or.
114, 25 P.2d 930; Actual or constructive fraudulent conduct
is essential to estoppel but not to waiver. Insurance Co.
of North America v. Williams, 42 Ariz. 331, 26 P.2d 117,
119; An act which operates to injury of other party is
essential to estoppel whereas there may be a waiver, although the opposite party is beneficially affected. Sentinel
Fire Ins. Co. v. McRoberts, 50 Ga.App. 732, 179 S.E. 256;
Conduct or dealings with another by which other is induced
to act or to forbear to act is basis of estoppel whereas
waiver is intentional relinquishment of a known right. De
Pasquale v. Union Indemnity Co., 50 R.I. 509, 149 A. 795;
Reynolds v. Travelers' Ins. Co., 176 Wash. 36, 28 P.2d 310,
314. Estoppel results from an act which operates to the
injury of the other party, while waiver may even affect
him beneficially. City of Glendale v. Coquat, 46 Ariz. 478,
52 P.2d 1178, 1180, 102 A.L.R. 837. Fraud may be implied
in estoppel but never in waiver. City of Glendale v. Coquat, 46 Ariz. 478, 52 P.2d 1178, 1180, 102 A.L.R. 837;
Benson v. Borden, 174 Md. 202, 198 A. 419, 427, 428. Ignorance of party who invokes estoppel, representations or conduct of party estopped which misled, and an innocent and
deleterious change of position in reliance upon such representations or conduct are essential to estoppel whereas
waiver is an intentional relinquishment. Ellis v. Metropolitan Casualty Ins. Co. of New York, 187 S.C. 162, 197 S.
E. 510; Knowledge and intention are both involved in,
waiver while an estoppel may arise where there is no intent to mislead. Benson v. Borden, 174 Md. 202, 198 A.
419, 427, 428; Beatty v. Employers' Liability Assur. Corporation, 106 Vt. 25, 168 A. 919, 922. Misleading of party to
his injury or prejudice or into altered position is essential
to estoppel but not to waiver. A-1 Cleaners & Dyers v. American Mut. Liability Ins. Co. of Boston, 307 Ill.App. 64, 30 N.
E.2d 87, 88; Beatty v. Employers' Liability Assur. Corporation, 106 Vt. 25, 168 A. 919, 922. Waiver consists merely
in renouncing some right or in ratifying what one might
repudiate. Williams v. Anaconda Copper Mining Co., 96
Mont. 204, 29 P.2d 649, 651. Waiver depends on what one
party intends to do, rather than upon what he induces his
adversary to do, as in "estoppel". Nathan Miller, Inc., v.
Northern Ins. Co. of New York, 3 Terry 523, 39 A.2d 23, 25;
Wisdom v. Board of Sup'rs of Polk County, 236 Iowa 669,
19 N.W.2d 602, 610.
Implied waiver is kin to estoppel and rests on course of
conduct evidencing intention not to insist on some performance due. Kansas City Life Ins. Co. v. Davis, C.C.A.Cal.,
95 F.2d 952, 957. It does not necessarily include all elements of estoppel. Smith v. Coutant, 232 Iowa 887, 6 N.W.
2d 421, 425.
Legal effect of waiver and estoppel is the same. Woodmen of the World Life Ins. Soc. v. Greathouse, 242 Ala. 532,
7 So.2d 89, 91.
Technically, a distinction exists between "waiver" and
"estoppel" but under insurance law, terms are used interchangeably. Boyle Road & Bridge Co. v. American Employers' Ins. Co. of Boston, Mass., 195 S.C. 397, 11 S.E.2d
438, 440, 441; The doctrine of waiver, as asserted against
insurance companies to avoid the strict enforcement of conditions contained in their policies, is only another name for
the doctrine of estoppel. Rushville Nat. Bank of Rushville v. State Life Ins. Co., 210 Ind. 492, 1 N.E.2d 445, 448.
While there are distinguishing features between "waiver"
and "estoppel," waiver belongs to family of estoppel and
the terms are frequently used as meaning the same thing
in law of insurance contracts. Ellis v. Metropolitan Casualty Ins. Co. of New York, 187 S.C. 162, 197 S.E. 510, 512.
Warranty
An estoppel based on principle of giving effect
to manifest intent of grantor and of preventing
grantor from derogating or destroying his own
grant by subsequent act. Lewis v. King, 157 La.
718, 103 So. 19, 22; Jordan v. Marks, D.C.La., 55
F.Supp. 204, 209. See, also, Deed, Estoppel By.
For "Acquiescence, Estoppel By", "Admissions,
Estoppel By", "Collateral Attack", "Concealment,
Estoppel By," "Conduct, Estoppel By", "Contract,
Estoppel By", "Deed, Estoppel By", "Election, Estoppel By", "Equitable Estoppel", "In Pais, Estoppel In", "Judgment, Estoppel By", "Judicial Estoppel," "Laches, Estoppel By," "Legal Estoppel,"
"Negligence, Estoppel By," "Promissory Estoppel," "Quasi Estoppel," "Record, Estoppel By,"
"Representation, Estoppel By," "Silence, Estoppel
By" and "Verdict, Estoppel By," see those titles.
ESTOVERIA SUNT ARDENDI, ARANDI, CONSTRUENDI ET CLAUDENDI. 13 Coke, 68. Estovers are of fire-bote, plow-bote, house-bote, and
hedge-bote.
ESTOVERHS HABENDIS. A writ for a wife
judicially separated to recover her alimony or estovers. Obsolete.
ESTOVERS. The right to use,- during lease, whatever timber there may be on leased premises necessary to promote good husbandry. Hood v. Foster, 194 Miss. 812, 13 So.2d 652, 653.
An allowance made to a person out of an estate
or other thing for his or her support, as for food
and raiment.
An allowance (more commonly called "alimony") granted to a woman divorced a mensa et
thoro, for her support out of her husband's estate.
1 Bl.Comm. 441.
The right or privilege which a tenant has to furnish
himself with so much wood from the demised premises as
may be sufficient or necessary for his fuel, fences, and other agricultural operations. 2 Bl.Comm. 35; Woodf.Landl.
& Ten. 232; Zimmerman v. Shreeve, 59 Md. 363; Van
Rensselaer v. Radcliff, 10 Wend. (N.Y.) 639, 25 Am. Dec.
582.
There is much learning in the old books relative to the
creation, apportionment, suspension, and extinguishment
of these rights, very little of which, however, is applicable
to the condition of things in this country, except perhaps
in New York, where the grants of the manor-lands have led
to some litigation on the subject. Tayl.Landl. & T. § 220.
See 4 Wash.R.P. 99; 7 Bing. 640; Richardson v. York, 14
Me. 221; Dalton v. Dalton, 42 N.C. 197; Loomis v. Wilbur,
5 Mas. 13, Fed.Cas.No.8,498.
Common of estovers, see Common.
ESTRAY. Cattle whose owner is unknown. 2
Kent, Comm. 359; Spelman. Any beast, not wild,
found within any lordship, and not owned by any
man. Cowell; 1 Bl.Comm. 297. These belonged
to the lord of the soil. Britt. c. 17. An animal
that has strayed away and lost itself; a wandering beast which no one seeks, follows, or claims.
Campbell v. Hamilton, 42 N.D. 216, 172 N.W. 810.
Estray must be understood as denoting a wandering
beast whose owner is unknown to the person who takes it
up. An estray is an animal that has escaped from its
owner, and wanders or strays about; usually defined, at
common law, as a wandering animal whose owner is
unknown. An animal cannot be an estray when on the
range where it was raised, and permitted by its owner to
run, and especially when the owner is known to the party
who takes it up. The fact of its being breachy or vicious
does not make it an estray. Kinney v. Roe, 70 Iowa, 509,
30 N.W. 776; Shepherd v. Hawley, 4 Or. 208; Lyman v.
651
ESTRAY
Gipson, 18 Pick., Mass., 426; but see Worthington v. Brent,
69 Mo. 205; State v. Apel, 14 Tex. 431.
Heifers trespassing unattended upon adjoining ranch
when taken up held "estrays" within Estray Act even if
heifers' owners were known, since act covers animals
belonging to known as well as to unknown owners. Soares
v. Ghisletta, 1 Cal.App.2d 402, 36 P.2d 668, 669.
The term is used of flotsam at sea. 15 L.Q.R.
357.
ESTREAT, v. To take out a forfeited recognizance from the records of a court, and return it to
the court of exchequer, to be prosecuted. See
Estreat, n.
A forfeited recognizance taken out from among the other
records for the purpose of being sent up to the exchequer,
that the parties might be sued thereon, was said to be
estreated. 4 Bi.Comm. 253. And see Louisiana Society v.
Cage, 45 La.Ann. 1394, 14 So. 422.
There is no "estreat" or taking a judgment of forfeiture
of a bail recognizance from the records and sending it up
to the exchequer for suit thereon in Louisiana, since the
same court which renders a judgment executes it, and the
same officers who are charged with procuring it to be rendered are also charged with procuring it to be executed.
State v. Johnson, 132 La. 11, 60 So. 702, 703.
ESTREAT, n. ( From Lat. extractum.) In English law. A copy or extract from the book of estreats, that is, the rolls of any court, in which the
amercements or fines, recognizances, etc., imposed
or taken by that court upon or from the accused,
are set down, and which are to be levied by the
bailiff or other officer of the court. Cowell;
Brown. A true copy or note of some original writing or record, and especially of fines and amercements imposed by a court, extracted from the record, and certified to a proper officer or officers
authorized and required to collect them. Fitzh.
N.B. 57, 76.
ESTRECIATUS. Straightened, as applied to
roads. Cowell.
ESTREPE. To strip; to despoil; to lay waste;
to comit waste upon an estate, as by cutting down
trees, removing buildings, etc. To injure the value
of a reversionary interest by stripping or spoiling
the estate.
ESTREPEMENT. A species of aggravated
waste, by stripping or devastating the land, to the
injury of the reversioner, and especially pending
a suit for possession.
ESTREPEMENT, WRIT OF. This was a common-law writ of waste, which lay in particular
for the reversioner against the tenant for life, in
respect of damage or injury to the land committed by the latter.
As it was only auxiliary to a real action for recovery of
the land, and as equity afforded the same relief by injunction, the writ fell into disuse in England, and was abolished by 3 & 4 Will. IV. c. 27. In Pennsylvania, by statute,
the remedy by estrepement is extended for the benefit of
specified persons. See 10 Viner, Abr. 497; Woodf. Landl.
& T. 447; Arch.Civ.PL 17; 7 Com.Dig. 659; Byrne v.
Boyle, 37 Pa. 260.
ESTUARY, is that part of the mouth or lower
course of a river flowing into the sea which is
subject to tide; especially, an enlargement of a
river channel toward its mouth in which the move-
ment of the tide Is very prominent. Alameda
County v. Garrison, 108 Cal.App. 122, 291 P. 464,
466.
ET. And. The introductory word of several Latin and law French phrases formerly in common
use.
ET ADJOURNATUR. And it is adjourned.
A phrase used in the old reports, where the argument, of
a cause was adjourned to another day, or where a second
argument was had. 1 Keb. 692, 754, 773.
ET AL. An abbreviation for et alii, "and others."
Mitchell v. Mason, 90 Fla. 192, 105 So. 404, 405.
The singular is "et alius" (q. v.). It may also
mean "and another" in the singular. Babb v.
Dowdy, 229 Ky. 767, 17 S.W.2d 1014, 1016; Glen
Falls Indemnity Co. v. Manning, La.App., 168 So.
787, 788. ,
Where the words "et al." are used in a judgment against
defendants, the quoted words include all defendants. Williams v. Williams, 25 Tenn.App. 290, 156 S.W.2d 363, 369.
ET ALIT it CONTRA. And others on the other
side.
A phrase constantly used in the Year Books, in describing a joinder in issue. P. 1 Edw. II. Prist; et alii 6 contra, et sic ad patriam: ready; and others, it contra, and
so to the country. T. 3 Edw. III. 4.
ET ALIUS. And another.
The abbreviation et al. (sometimes in the plural written
et als.) is often affixed to the name of the person first mentioned, where there are several plaintiffs, grantors, persons
addressed, etc. See In re McGovern's Estate, 77 Mont. 182,
250 P. 812, 815; Anderson v. Haas, 160 Ga. 420, 128 S.E.
178, 179; Conery v. Webb, 12 La.Ann. 282; Lyman v. Milton, 44 Cal. 630.
ET ALLOCATUR. And it is allowed.
ET CETERA (or ET C1ETERA). And others;
and other things; and others of like character;
and others of the like kind; and the rest; and so
on; and so forth. Muir v. Kay, 66 Utah, 550, 244
P. 901, 904; Osterberg v. Section 30 Development
Co., 160 Minn. 497, 200 N.W. 738, 739; State on Inf.
Haw v. Three States Lumber Co., 274 Mo. 361, 202
S.W. 1083, 1084; Wagner v. Brady, 130 Tenn. 554,
171 S.W. 1179; Fleck v. Harmstad, 304 Pa. 302,
155 A. 875, 877, 77 A.L.R. 874. In its abbreviated
form (etc.) this phrase is frequently affixed to one
of a series of articles or names to show that
others are intended to follow or understood to be
included. So, after reciting the initiatory words
of a set formula, or a clause already given in full,
etc. is added, as an abbreviation, for the sake of
convenience. And other things of like kind or
purpose as compared with those immediately
theretofore mentioned. Hisaw v. Ellison Ridge
Consolidated School Dist., 189 Miss. 664, 198 So.
557, 558.
In its abbreviated form (etc.) this phrase means and
other like purposes. Anderson & Kerr Drilling Co. v.
Bruhlme er, Tex.Civ.App., 115 S.W.2d 1212, 1214; other
things of like character. Lewis v. Ladner, 177 Miss. 473,
168 So. 431, 282; other things or the rest; and so forth;
used to indicate others of a kind specified, Potter v. Borough of Metuchen, 108 N.J.L. 447, 155 A. 369, 370; others
of the like kind; and the rest; and so on; and so forth,
Forman v. Columbia Theater Co., 20 Wash.2d 685, 148 P.2d
951, 953. In such form it Is frequently affixed to one of
652
ETHICS
a series of articles or names to show that others are intended to follow or understood to be included so, after reciting the initiatory words of a set formula, or a clause
already given in full, etc. is added, as an abbreviation, for
the sake of convenience. See Lathers v. Keogh, 39 Hun,
N.Y., 579; Morton v. Young, 173 Ky. 301, 190 S.W. 1090;
Becker v. Hopper, 22 Wyo. 237, 138 P. 179, 180, Ann.Cas.
1916D, 1041.
ET NON. Lat. And not. A technical phrase in
pleading, which introduces the negative averments
of a special traverse. It has the same force and
effect as the words absque hoc, "without this,"
and is occasionally used instead of the latter.
ET SEQ. An abbreviation for et sequentes ( masculine and feminine plural) or et sequentia (neuter), "and the following." Thus a reference to
"p. 1, et seq." means "page first and the following pages." Also abbreviated "et sqq.," which is
preferred by some authorities for a reference to
more than one following page.
ET DE CEO SE METTENT EN LE PAYS. L. Fr.
And of this they put themselves upon the country.
ET DE HOC PONIT SE SUPER PATRIAM. And
of this he puts himself upon the country. The
formal conclusion of a common-law plea in bar by
way of traverse. See 3 Bl.Comm. 313. The literal translation is retained in the modern form.
ET SIC. And so. In the Latin forms of pleading these were the introductory words of a special conclusion to a plea in bar, the object being to
render it positive and not argumentative; as et
sic nil debet.
ET EI LEGITUR IN ILEC VERBA. L. Lat. And
it is read to him in these words. Words formerly
used in entering the prayer of oyer on record.
ET SIC AD JUDICIUM. And so to judgment.
Yearb. T. 1 Edw. II. 10.
ET HABEAS IBI TUNC HOC BREVE. And have
you then there this writ. The formal words directing the return of a writ. The literal translation is retained in the modern form of a considerable number of writs.
ET SIC AD PATRIAM. And so to the country.
A phrase used in the Year Books, to record an issue to the country.
ET HABUIT. And he had it.
ET SIC FECIT. Arid he did so. Yearb. P. 9 Hen.
VI. 17.
A common phrase in the Year Books, expressive of the
allowance of an application or demand by a party. Parn.
demands la view. Et habuit, etc. M. 6 Edw. III. 49.
ET SIC PENDET. And so it hangs. A term used in the old reports to signify that a point was
left undetermined. T. Raym. 168.
ET HOC PARATUS EST VERIFICARE. And
this he is prepared to verify.
The Latin form of concluding a plea in confession and
avoidance; that is, where the defendant has confessed all
that the plaintiff has set forth, and has pleaded new matter
in avoidance. 1 Salk. 2.
These words were used, when the pleadings were in
Latin, at the conclusion of any pleading which contained
new affirmative matter. They expressed the willingness or
readiness of the party so pleading to establish by proof the
matter alleged in his pleading. A pleading which concluded in that manner was technically said to "conclude
with a verification," in contradistinction to a pleading
which simply denied matter alleged by the opposite party,
and which for that reason was said to "conclude to the
country," because the party merely put himself upon the
country, or left the matter to the jury. Brown.
ET HOC PETIT QUOD INQUIRATUR PER PATRIAM. And this he prays may be inquired of
by the country. The conclusion of a plaintiff's
pleading, tendering an issue to the country. 1
Salk. 6. Literally translated in the modern forms.
ET INDE PETIT JUDICIUM. And thereupon [or
thereof] he prays judgment. A clause at the end
of pleadings, praying the judgment of the court
in favor of the party pleading. It occurs as early
as the time of Bracton, and is literally translated
in the modern forms. Bract. fol. 57b; Crabb, Eng.
Law, 217.
ET SIC ULTERIUS. And so on; and so further;
and so forth. Fleta, lib. 2, c. 50, § 27.
ET UX. An abbreviation for et uxor,—"and
wife." Where a grantor's wife joins him in the
conveyance, it is sometimes expressed (in abstracts, etc.) to be by "A. B. et ux."
ETCHING. Strictly, the art of using acid to bite
a design on metal; in a broader sense, the word
includes the sand-blast process, which uses no
acid, but relies on abrasion by sand, emery, or a
like substance. Graphic Arts Co. v. Photo-Chromotype Engraving Co., C.C.A.Pa., 231 F. 146, 148.
ETERNAL SECURITY. The doctrine of "eternal security" means that once one becomes a Christian or has been "regenerated" his future conduct,
no matter what it may be, will not jeopardize his
salvation. Ashman v. Studebaker, 115 Ind.App.
73, 56 N.E.2d 674, 678.
ET INDE PRODUCIT SECTAM. And thereupon
he brings suit. The Latin conclusion of a declaration, except against attorneys and other officers of the court. 3 Bl.Comm. 295.
ETHICAL. "Of or relating to moral action, motive or character; as, ethical emotion; also, treating ,,of moral feelings, duties or conduct; containing precepts of morality; moral"; and secondarily as "professionally right or befitting; conforming to professional standards of conduct."
Kraushaar v. La Vin, 181 Misc. 508, 42 N.Y.S.2d
857, 859.
ET MODO AD HUNG DIEM. Lat. And now at
this day. This phrase was the formal beginning
of an entry of appearance or of a continuance.
The equivalent English words are still used in
this connection.
ETHICS. What is generally called the "ethics"
of the profession is but consensus of expert opinion as to necessity of professional standards.
Cherry v. Board of Regents of University of State
of New York, 289 N.Y. 148, 44 N.E.2d 405, 412.
653
ETHICS
ETHICS, LEGAL. See Legal Ethics.
ETIQUETTE OF THE PROFESSION. The code
of honor agreed on by mutual understanding and
tacitly accepted by members of the legal profession, especially by the bar. Wharton.
EUM QUI NOCENTEM INFAMAT, NON EST
.IEQUUM ET BONUM OB EAM REM CONDEMNARI; DELICTA ENIM NOCENTIUM NOTA
ESSE OPORTET ET EXPEDIT. It is not just
and proper that he who speaks ill of a bad man
should be condemned on that account; for it is
fitting and expedient that the crimes of bad men
should be known. Dig. 47, 10, 17; 1 Bl.Comm. 125.
EUNDO, MORANDO, ET REDEUNDO. Lat.
Going, remaining, and returning.
A person who is privileged from arrest (as a witness,
legislator, etc.) is generally so privileged eundo, morando,
at redeundo; that is, on his way to the place where his
duties are to be performed, while he remains there, and
on his return journey.
EUNDO ET REDEUNDO. Lat. In going and returning. Applied to vessels. 3 C.Rob.Adm. 141.
EUNOMY. Equal laws and a well-adjusted constitution of government.
EUNUCH. A male of the human species who has
been castrated. See Domat. liv. prel. tit. 2, § 1,
n. 10. Eckert v. Van Pelt, 69 Kan. 357, 76 P. 909,
66 L.R.A. 266.
EVASIVE. Tending or seeking to evade; elusive; shifting; as an evasive argument or plea.
Deprivation of lessee of free enjoyment of premises, and,
if it does so, deprivation need not be permanent. Title &
Trust Co. v. Durkheimer Inv. Co., 155 Or. 427, 63 P.2d 909.
EVASIVE ANSWER. One which consists in refusing either to admit or to deny a matter as to
which the defendant is necessarily presumed to
have knowledge.
Hence, where a defendant is alleged to be a corporation,
an answer declining, for want of sufficient information,
either to admit or to deny such an averment would be
evasive. Raleigh & Gaston Ry. Co. v. Pullman Co., 122 Ga.
700, 50 S.E. 1008. But an answer distinctly denying an
allegation that the defendant is a corporation, although it
may be false, is not evasive. Gaynor v. Travelers' Ins. Co.,
12 Ga.App. 601, 77 S.E. 1072, 1073.
EVE. The period immediately preceding an important event. Jarvis v. Jarvis, 286 Ill. 478, 122
N.E. 121, 123.
EVEN. Although; if. May v. Missouri Pac. R.
Co., 143 Ark. 75, 219 S.W. 756, 757.
EVENING. The closing part of the day and beginning of the night; in a strict sense, from sunset till dark; in common speech, the latter part
of the day and the earlier part of the night, until
bedtime. Golay v. Stoddard, 60 Idaho 168, 89 P.
2d 1002, 1005. The period between sunset or the
evening meal and ordinary bedtime. City of Albany v. Black, 216 Ala. 4, 112 So. 433; State v.
Foley, 89 Vt. 193, 94 A. 841, 842.
EVENINGS. In old English law. The delivery at
even or night of a certain portion of grass, or corn,
etc., to a customary tenant, who performs the
service of cutting, mowing, or reaping for his lord,
given him as a gratuity or encouragement, KenEVASIO. Lat. In old practice. An escape from , nett, Gloss.
prison or custody. Reg. Orig. 312.
EVENT. The consequence of anything, the issue,
EVASION. An act of eluding or avoiding, or
conclusion, end; that in which an action, operaavoidance by artifice. City of Wink v. Griffith
tion, or series of operations, terminates. Geis v.
Amusement Co., 129 Tex. 40, 100 S.W.2d 695, 701.
Geis, 125 Neb. 394, 250 N.W. 252; Brewer v. Ash
Grove Lime & Portland Cement Co., 223 Mo.App.
A subtle endeavoring to set aside truth or to es983, 25 S.W.2d 1086, 1088.
cape the punishment of the law.
Anything that -happens or comes to pass as distinguished
Thus, If one person says to another that he will not
from a thing that exists, Quinn v. Streeter, Sup., 175 Misc.
strike him, but will give him a pot of ale to strike first,
932, 24 N.Y.S.2d 916, 920. That which comes, arrives, or
and, accordingly, the latter strikes, the returning the blow
happens, especially an incident which is important or
is punishable; and, if the person first striking is killed, it remarkable, Schulz v. Great Atlantic & Pacific Tea Co., 331
it is murder, for no man shall evade the justice of the law
Mo. 616, 56 S.W.2d 126; the consequence, outcome, sequel,
by such a pretense. 1 Hawk.P.C. 81; Bac.Abr. Fraud, A.
or end effected by prior operation of medium or contributSo no one may plead Ignorance of the law to evade it.
ing force or agency referred to as the "means" or "cause",
Jacob.
Toups v. Penn Mut. Life Ins. Co., D.C.La., 49 F.Supp. 348,
349;
the culmination or end that means may have proArtifice or cunning is implicit in the term as applied to
duced or brought about. Whatcott v. Continental Casualty
contest between citizen and government over taxation.
Co., 85 Utah 406, 39 P.2d 733, 736; Sentinel Life Ins. Co.
Clapp v. Heiner, C.C.A.Pa., 51 F.2d 224, 225.
v. Blackmer, C.C.A.Colo., 77 F.2d 347, 350.
In a general way the words "suppression," "evasion,"
An event may be injury itself rather than means proand "concealment" mean to avoid by some device or stratducing it. Juhl v. Hussman-Ligonier Co., Mo.App., 146
egy or the concealment or intentional withholding some
S.W.2d 106, 108. An event need not necessarily be a cause,
fact which ought in good faith to be communicated. Murbut may be and generally is a result. Guillod v. Kansas
ray v. Brotherhood of American Yeomen, 180 Iowa, 626, 163
City Power & Light Co., 224 Mo.App. 382, 18 S.W.2d 97,
N.W. 421, 428.
100.
When an act is condemned as an "evasion," what is
The word includes all of steps or connected Incidents
meant is that it is on the wrong side of the line indicated
from first cause to final result, and may include both cause
by the policy if not by the mere letter of the law. Wyndand effect. Rinehart v. F. M. Stamper Co., 227 Mo.App.
moor Building & Loan Ass'n v. Power Building & Loan
653, 55 S.W.2d 729. The word is broad enough to include
Ass'n, Pa.Super., 121 Pa.Super. 236, 183 A. 367, 369; Bulan omission. Texas Cities Gas Co. v. Dickens, Tex.Civ.
len v. State of Wisconsin, Wis., 240 U.S. 625, 36 S.Ct. 473,
App., 156 S.W.2d 1010, 1016.
474, 60 L. Ed. 830.
EUTHANASIA. The act or practice of painlessly
putting to death persons suffering from incurable
and distressing disease. An easy or agreeable
death.
654
EVICT
The "making of a contract" is an "event". Brown v.
Oneida Knitting Mills, 226 Wis. 662, 277 N.W. 653, 655.
In reference to judicial and quasi judicial proceedings, "event" means the conclusion, end, or final outcome or result of a litigation; as, in the
phrase "abide the event," speaking of costs or of
an agreement that one suit shall be governed by
the determination in another. Reeves v. McGregor, 9 Adol. & El. 576; Benjamin v. Ver Nooy, 168
N.Y. 578, 61 N.E. 971; Gordon v. Krellman, 217
App.Div. 477, 216 N.Y.S. 778, 779.
Where costs are awarded to an appellant to abide the
event, the "event" which determines whether the appellant is entitled to an award of costs of appeal is his success in obtaining a judgment on the merits on the retrial.
Commercial Sealeaf Co.. v. Purepac Corporation, 169 Misc.
133, 7 N.Y.S.2d 146, 148.
EVENT OF ANY SUIT. Means legal event of
any suit. Drainage Dist. No. 1 of Lincoln County
v. Kirkpatrick-Pettis Co., 140 Neb. 530, 300 N.W.
582, 587; Geis v. Geis, 125 Neb. 394, 250 N.W. 252.
EVENTUS EST QUI EX CAUSA SEQUITUR; ET
DICITUR EVENTUS QUIA EX CAUSIS EVENIT.
9 Coke, 81. An event is that which follows from
the cause, and is called an "event" because it eventuates from causes.
EVENTUS VARIOS RES NOVA SEMPER HABET. Co. Litt. 379. A new matter always produces various events.
EVERY. Each one of all; all the separate individuals who constitute the whole, regarded one by
one. Smith v. Hall, 217 Ky. 615, 290 S.W. 480,
482; Salo v. Pacific Coast Casualty Co., 95 Wash.
109, 163 P. 384, 385, L.R.A.1917D, 613. The term
is sometimes equivalent to "all"; Erskine v. Pyle,
51 S.D. 262, 213 N.W. 500, 502; and sometimes to
"each"; Miller v. Rodd, 285 Pa. 16, 131 A. 482, 483.
EVERY CONTRACT OF HIRING, VERBAL,
WRITTEN OR IMPLIED. Means wherever and
by whomsoever made. De Gray v. Miller Bros.
Const. Co., 106 Vt. 259, 173 A. 556, 562.
EVERY CORPORATION. Statute providing that
books of "every corporation" shall be open to inspection of shareholders, held applicable to foreign
corporation doing business within state. Getridge v. State Capital Co., 129 Cal.App. 86, 18 P.
2d 375, 376.
EVERY MAN MUST BE TAKEN TO CONTEMPLATE THE PROBABLE CONSEQUENCES OF
THE ACT HE DOES. Lord Ellenborough, 9 East,
277. A fundamental maxim in the law of evidence. Best, Pres. § 1 16; 1 Phil.Ev. 444. (Every
man is presumed to intend the natural and probable consequences of his own voluntary acts. 1
Greenl.Evid. § 18; 9 B. & C. 643; 3 Maule & S.
11; Webb, Poll.Torts 35.)
EVERY OTHER THING. This phrase, as used in
requiring employer to furnish safe place of employment and to do "every other thing" reasonably necessary to protect employees, relates to
things of same kind that employer must necessarily do in making place safe. Northwestern
Casualty & Surety Co. v. Industrial Commission,
194 Wis. 337, 216 N.W. 485, 486.
EVERY OWNER. As used in law making "every
owner" of a motor vehicle liable for personal injuries in certain circumstances include a municipality. Kelly v. City of Niagara Falls, 131 Misc.
934, 229 N.Y.S. 328, 331.
EVERY PART. As used in charge on caveat to
probate of will, the signature is included in "every
part" of will. Dulin v. Dulin, 197 N.C. 215, 148
S.E. 175, 178.
EVERY PERSON. Statute making it misdemeanor for "every person" to sell appointments to public office applies to all perdvms whether public officials or not. Smalley v. State, 75 Okl.Cr. 10, 127
P.2d 869, 870.
Statute making it duty of "every person" to pay taxes
without demand includes receivers. Hood v. Bond, 42 N.M.
295, 77 P.2d 180, 188.
Statute providing for arrest of every person in city
engaged in violating law or ordinance includes female
offenders. City of Janesville v. Tweedell, 217 Wis. 395, 258
N.W. 437.
Where a law specifically excludes any person engaged in
certain transportation from definition of "contract hauler"
and defines "for hire carrier" to include "every person,"
except "certified operator" and "contract hauler," "every
person" includes those engaged in such transportation.
State ex rel. Scott v. Superior Court for Thurston County,
173 Wash. 547, 24 P.2d 87.
EVERY PERSON, FIRM OR CORPORATION.
City ordinance providing "every person, firm or
corporation" should pay gasoline tax held to include receivers. Kansas City, Mo. v. Johnson, C.
C.A.Mo., 70 F.2d 360, 361.
EVERY RESIDENT OF THIS STATE, As used
in constitutional provision partially exempting
from taxation those honorably discharged from
military service applies to every person who fulfills requirements of provision regardless of sex.
Lockhart v. Wolden, 17 Ca1.2d 628, 111 P.2d 319,
320.
EVERY RIGHT, TITLE, INTEREST OR THING.
Tender of "every right, title, interest or thing"
received is tender of everything received in action
to rescind land contract. Mathews v. Tannenbaum, 139 Cal.App. 500, 34 P.2d 233, 235.
EVERY STOCK CORPORATION. Statute making stockholders of "every stock corporation" liable for employees' services refers to domestic
stock corporations only. Bogardus v. Fitzpatrick,
139 Misc. 533, 247 N.Y.S. 692, 693.
EVERY SUCH PROVISION. In statute providing that devise for jointure of wife shall bar her
dower and that every such provision by will shall
be taken as intended in lieu of dower, "every
such provision" means devise for jointure of wife.
Shackelford v. Shackelford, 181 Va. 869, 27 S.E.2d
354, 359.
EVES-DROPPERS. See Eaves-Droppers.
EVICT. Civil law. To recover anything from a
person by virtue of the judgment of a court or
judicial sentence.
655
EVICT
Common law. To dispossess, or turn out of
the possession of lands by process of law. Also
to recover land by judgment at law. "If the land
is evicted, no rent shall be paid." 10 Coke, 128a.
The term "evicted," means deprivation by one of office,
or of salary attached thereto, to which another is, or may
be, entitled. The term "evicted" properly applies only to
realty and has been used to describe inability to get promised possession, and also, as deprivation of the possession
of lands and tenements. Hawkins v. Voisine, 292 Mich.
357, 290 N.W. 827, 828.
To "evict" a tenant is to deprive him of possession of
the leased premises or disturb him in their beneficial
enjoyment so as to cause tenant to abandon the premises.
Estes v. Gatliff, 291 Ky. 93, 163 S.W.2d 273, 276.
EVICTION. Dispossession by process of law;
the act of depriving a person of the possession of
lands which he has held, in pursuance of the judgment of a court. Reasoner v. Edmundson, 5 Ind.
395; Cowdrey v. Coit, 44 N.Y. 392, 4 Am.Rep. 690;
Home Life Ins. Co. v. Sherman, 46 N.Y. 372.
Originally and technically, the dispossession
must be by judgment of law; if otherwise, it was
an ouster; Webb v. Alexander, 7 Wend.N.Y. 285;
but the necessity of legal process was long ago
abandoned in England; 4 Term 617; and in this
country also it is settled that there . need not be
legal process; Green v. Irving, 54 Miss. 450, 28
Am.Rep. 360; Thomas v. Becker, 190 Iowa 237,
180 N.W. 285, 286. Any actual entry and dispossession, adversely and lawfully made under paramount title, will be an eviction. Rawle, Co y . §
133; Gallison v. Downing, 244 Mass. 33, 138 N.E.
315, 318.
In a more popular sense, the term denotes turning a tenant of land out of possession, either by
re-entry or by legal proceedings, such as an action of ejectment. Sweet.
By a loose extension, the term is sometimes applied to the ousting of a person from the possession of chattels; but, properly, it applies only to
realty.
A wrongful act upon the part of the landlord is involved
in eviction. Cerruti v. Burdick, 130 Conn. 284, 33 A.2d 333,
335.
An entry under paramount title, so as to interfere with
the rights of the grantee, is implied in eviction. The
object of the party making the entry is immaterial,
whether it be to take all or a part of the land itself or
merely an incorporeal right. Phrases equivalent in meaning are "ouster by paramount title," "entry and disturbance," "possession under an elder title," and the like.
Mitchell v. Warner, 5 Conn. 497.
An "eviction by title paramount" arises when a third
person establishes title to demised premises superior to
that of landlord, and by virtue of that title gains possession. John R. Thompson Co. v. Northwestern Mut. Life
Ins. Co., D.C.Ohio, 31 F.Supp. 399, 400.
Any act of landlord which deprives tenant of beneficial
enjoyment of premises. Adler v. Sklaroff, 154 Pa.Super.
444, 36 A.2d 231,,233.
Any wrong of lessor which results in substantial interference with lessee's rights. Harrison v. Fregger, 88 Mont.
448, 294 P. 372, 373.
Deprivation of lessee of possession of premises or disturbance of lessee in beneficial enjoyment so as to cause
tenant to abandon the premises. Estes v. Gatliff, 291 Ky.
93, 163 S.W.2d 273, 276.
Dispossession of tenant by landlord. Lesher v. Louisville Gas & Electric Co., D.C.Ky., 49 F.Supp. 88, 89, 90.
Dispossession under judgment, though it need not be by
force of process under judgment. Edgemont Coal Co. v.
Asher, D.C.Ky., 298 F. 1000; Walker v. Robinson, 163 Ky.
618, 174 S. W. 503, 505.
Entry on and taking possession of any part of demised
premises by landlord during continuance of lease and
exclusion of tenant. Landon v. Hill, 136 Cal.App. 560, 29
P.2d 281, 282.
Formerly the word was used to denote an expulsion by
the assertion of a paramount title or by process of law.
Port Utilities Commission of Charleston v. Marine Oil Co.,
173 S.C. 345, 175 S.E. 818.
Intentional exclusion of lessee from some part of leased
premises. Gorfinkle v. Abrams, 263 Mass. 569, 161 N.E.
795.
Interference with tenant's beneficial enjoyment of premises. Peale v. Tvete, 172 Wash. 296, 20 P.2d 12, 13; Kahn
v. Bancamerica-Blair Corporation, 327 Pa. 209, 193 A. 905,
906.
Manual or physical explusion or exclusion from demised
premises, or any part thereof is unnecessary to constitute
eviction. Kennerly v. B. F. Avery & Sons Plow Co., Tex.
Civ.App., 300 S.W. 159, 161.
Originally an eviction was understood to be a dispossession of the tenant by some act of his landlord or the failure of his title. Of later years it has come to include any
wrongful act of the landlord which may result in an interference with the tenant's possession in whole or in part.
The act may be one of omission as well as one of commission. Holden v. Tidwell, 37 Old. 553, 133 P. 54, 56, 49
L.R.A.,N.S., 369.
Something of a grave and permanent character by landlord or those acting under his authority with intent and
effect to deprive tenant of use, occupation, and enjoyment
of premises or part thereof, or the establishment or assertion against tenant of a title paramount to the landlord.
Blomberg v. Evans, 194 N.C. 113, 138 S.E. 593, 594, 53
A.L.R. 686; Aguglia v. Cavicchia, 229 Mass. 263, 118 N.E.
283, 284, L.R.A.1918C, 59; Waldorf System v. Dawson, 49
R.I. 57, 139 A. 789, 790; Automobile Supply Co. v. Scene-inAction Corporation, 340 Ill. 196, 172 N.E. 35, 37, 69 A.L.R.
1085.
When it would be useless for covenantee to attempt to
maintain his title, as where holder of superior title has
taken actual possession or threatens suit, an eviction occurs
in legal contemplation. Love v. Minerva Petroleum Corporation, Tex.Civ.App., 105 S.W.2d 892, 894.
When tenant's possession or enjoyment of premises is
interfered with by a third person not acting by landlord's
authority, or consent, there is no "eviction". Smith v.
Nortz Lumber Co., N.D., 72 N.D. 353, 7 N.W.2d 435, 437;
Prospect Point Land Improvement Co. v. Jackson, 109
N.J.L. 385, 162 A. 576, 577.
Civil Law
The abandonment which one is obliged to make of a
thing, in pursuance of a sentence by which he is condemned to do so. Poth.Contr.Sale, pt. 2, c. 1, § 2, art. 1,
no. 83. The abandonment which a buyer is compelled to
make of a thing purchased, in pursuance of a judicial sentence.
Eviction is the loss suffered by the buyer of the totality
of the thing sold, or of a part thereof, occasioned by the
right or claims of a third person. Civil Code La. art. 2500.
For "Actual Eviction," "Constructive Eviction,"
"Partial Eviction," and "Total Eviction," see those
titles.
EVIDENCE. Any species of proof, or probative
matter, legally presented at the trial of an issue,
by the act of the parties and through the medium
of witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in
the minds of the court or jury as to their contention. Hotchkiss v. Newton, 10 Ga. 567; O'Brien v.
State, 69 Neb. 691, 96 N.W. 650; Hubbell v. U. S.,
15 Ct.C1. 606; McWilliams v. Rodgers, 56 Ala. 93.
656
EVIDENCE
All circumstances in case, Including opportunity of witnesse§ for observation, interest in case, demeanor on stand,
and other circumstances. Auschwitz v. Wabash Ry. Co.,
346 Ill. 190, 178 N.E. 403, 410; all kinds of proof, Kneezle
v. Scott County Milling Co., Mo.App., 113 S.W.2d 817, 822.
All the means by which any alleged matter of fact, the
truth of which is submitted to investigation, is established
or disproved. 1 Greenl.Ev. c. 1, § 1; Bednarik v. Bednarik, 18 N.J.Misc. 633, 16 A.2d 80, 89; Latikos v. State,
17 Ala.App. 592, 88 So. 45, 47.
Any matter of fact, the effect, tendency, or design of
which is to produce in the mind a persuasion of the existence or nonexistence of some matter of fact. State v.
Heavener, 146 S.C. 138, 143 S.E. 674, 676.
Anything perceptible to the five senses constituting "evidence," when submitted to court or jury, if competent. In
re Fisher's Estate, 47 Idaho 668, 279 P. 291, 293.
As a part of procedure "evidence" signifies those rules
of law whereby it is determined what testimony should be
admitted and what should be rejected in each case, and
what is the weight to be given to the testimony admitted.
Kellman v. Stoltz, D.C.Iowa, 1 F.R.D. 726, 728.
Competent evidence is meant by statute requiring trial
court to hear evidence on controverted applications for
change of venue. State ex rel. Kansas City Public Service
Co. v. Waltner, 350 Mo. 1021, 169 S.W.2d 697, 703.
Documents and other exhibits which may properly be
submitted to jury are evidence. Madison v. State, 138 Fla.
467, 189 So. 832, 835.
Evidence legally and properly introduced is meant by
"evidence". Young v. Industrial Accident Commission, 38
Cal.App.2d 250, 100 P.2d 1062, 1066.
Exhibits are evidence, Worland v. McGill, 26 Ohio App.
442, 160 N.E. 478, 480.
Facts admitted upon trial of cause become "evidence".
American Extension School of Law v. Ragland, 232 Mo.App.
763, 112 S.W.2d 110, 113.
Facts judicially noticed are equivalent to "evidence".
Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784, 792.
Inference arising under doctrine of "res ipsa loquitur"
is "evidence". Druzanich v. Criley, 19 Ca1.2d 439, 122
P.2d 53, 56.
Medical testimony is "evidence". Farmer Motor Co. v.
Smith, 253 Ky. 151, 69 S.W.2d 1.
Opinion of expert is evidence which is to be weighed and
considered like any other evidence. Southern California
Edison Co. v. Gemmill, 30 Cal.App.2d 23, 85 P.2d 500, 502.
Reasonable inferences drawn from affirmative facts
proven are "evidence". Hepp v. Quickel Auto & Supply
Co., 37 N.M. 525, 25 P.2d 197.
Something of substance and relevant coAsequence. Broadway & Fourth Ave. Realty Co. v. Metcalfe, 230 Ky. 800, 20
S.W.2d 988, 990.
Substantial evidence is meant by word "evidence", Indianapolis Power & Light Co. v. National Labor Relations
Board, C.C.A.7, 122 F.2d 757, 761; Gelb v. Federal Trade
Commission, C.C.A.2, 144 F.2d 580, 582.
Such kinds of proof as may be legally presented ,at a
trial, by the act of the parties, and through the aid of such
concrete facts as witnesses, records or other documents.
That which demonstrates, makes clear, or ascertains the
truth of the very fact or point in issue, either on the one
side or on the other. Leonard v. State, 100 Ohio St. 456,
127 N.E. 464, 466; Lynch v. Rosenberger, 121 Kan. 601, 249
P. 682, 683, 60 A.L.R. 376.
• That which furnishes or tends to furnish proof. It is
that which brings to the mind a just conviction of the truth
or falsehood of any substantive proposition which is
asserted or denied. Wong Yee Toon v. Stump, C.C.A.Md.,
233 F. 194, 198; Ex parte Lam Pui, D.C.N.C., 217 F. 456,
467.
That which is legally submitted to a jury, to enable
them to decide upon the questions in dispute or issue, as
pointed out by the p:eadings, and distinguished from all
comment and argument. 1 Starkie, Ev. pt. 1, § 3.
That which tends to procluce conviction in the mind as
to existence of a fact. Magazine v. Shull, 116 Ind.App. 79,
60 N.E.2d 611, 613.
Black's Law Dictionary Revised 4th Ed.-42
That which tends to prove or disprove any matter in
question, or to influence the belief respecting it. Belief is
produced by the consideration of something presented to
the mind. The matter thus presented, in whatever shape
it may come, and through whatever material organ it is
derived, is evidence. Parker, Lectures on Medical Jurisprudence, in Dartmouth College.
The means sanctioned by law of ascertaining in a judicial proceeding the truth respecting a question of fact.
Cal. Code Civ.Proc. § 1823.
The word signifies, in its original sense, the state of
being evident, i. e., plain, apparent or notorious. But by
an almost peculiar inflection of our language, it is applied
to that which tends to render evident or to generate proof.
Best, Ev. §§ 10, 11; Dupont v. Pelletier, 120 Me. 114, 113
A. 11, 12.
What transpires in jury's presence and what is necessarily obvious to them is "evidence" if relevant and unprejudicial. Williamson v. Derry Electric Co., 89 N.H.
216, 196 A. 265 266.
Whatever is received to establish or disprove an alleged
fact. In re Seigle's Estate, 26 N.Y.S.2d 410, 413, 176
Misc. 15.
Whatever may be given to the jury as tending to prove a
case; includes testimony of witnesses, documents, admissions of parties, etc. Harris v. Tomlinson, 130 Ind. 426, 30
N.E. 214 ; Carroll v. Bancker, 43 La. Ann. 1078, 10 So. 192.
Whatever may properly be submitted to a court or jury
to elucidate an issue or prove a case. Superior Meat Products v. Holloway, 113 Ind.App. 320, 48 N.E.2d 83, 86.
Within prohibition against requiring an accused to give
evidence against himself, "evidence" means evidence by
accused out of court as well as in court. State v. Bates,
187 Miss. 172, 192 So. 832, 835.
Evidence may be false and of no probative value and so
it differs from proof. State v. Howard, 162 La. 719, 111 So.
72, 75.
To "evidence" means to attest, prove, show clearly, make
plain. Indiana Harbor Belt R. Co. v. Jacob Stern & Sons,
D.C.Ill., 37 F.Supp. 690, 691.
For Presumption as evidence, see Presumption;
Proof and evidence distinguished, see Proof; Testimony as synonymous or distinguishable, see
Testimony; View as evidence, see View.
For "Adminicular Evidence", "Aliunde", "Best
Evidence", "Beyond Reasonable Doubt", "Circumstantial Evidence", "Competent Evidence", "Corroborating Evidence", "Cumulative Evidence",
"Demonstrative Evidence", "Direct Evidence",
"Documentary Evidence," "Expert Evidence", "Extrajudicial Evidence", "Extraneous Evidence,"
"Extrinsic Evidence", "Fact", "Fair Preponderance", "Hearsay", "Incompetent Evidence", "Inculpatory", "Indirect Evidence", "Indispensable
Evidence", "Inference", "Intrinsic Evidence",
"Legal Evidence", "Material Evidence", "Mathematical Evidence", "Moral Evidence," "Newly-Discovered Evidence", "Opinion Evidence", "Oral Evidence", "Original Evidence", "Parol Evidence",
"Partial Evidence," "Preponderance," "Presumptive Evidence," "Prima Facie Evidence," "Primary
Evidence," "Probable Evidence," "Probative,"
"Probative Facts," "Proof," "Proper Evidence,"
"Real Evidence," "Rebutting Evidence," "Relevancy," "Satisfactory Evidence," "Scintilla of Evidence," "Second-Hand Evidence," "Secondary Evidence," "State's Evidence," "Substantive Evidence," "Substitutionary Evidence," "Traditionary
Evidence," and "Weight of Evidence," see those
titles.
657
EVIDENCE BY INSPECTION
EVIDENCE BY INSPECTION is such evidence
as is addressed directly to the senses without intervention of testimony. Kabase v..State, 31 Ala.
App. 77, 12 So.2d 758, 764.
EVIDENCE COMPLETED. Means that both
sides have offered testimony and rested, or that
plaintiff has rested and defendant has made motion for finding on plaintiff's case .and stands on
motion and declines to offer evidence. Merriam
v. Sugrue, D.C.Mun.App., 41 A.2d 166, 167.
EVIDENCE; LAW OF. The aggregate of rules
and principles regulating the admissibility, relevancy, and weight and sufficiency of evidence in
legal proceedings. See Ballinger's Ann.Codes &
St.Or.1901, § 678, Code 1930, § 9-102.
EVIDENCE OF DEBT. A term applied to written instruments or securities for the payment of
money, importing on their face the existence of
a debt. 1 Rev.St.N.Y. p. 599, § 55.
EVIDENCE OF INSURABILITY SATISFACTORY TO COMPANY. Means evidence which
would satisfy a reasonable person experienced
in the life insurance business that insured was in
an insurable condition. Bowie v. Bankers Life
Co., C.C.A.Colo., 105 F.2d 806, 808.
EVIDENCE OF TITLE. A deed or other document establishing the title to property, especially real estate.
EVIDENCE PROPER is something capable of
being weighed in scales of reason and compared
and estimated with other matter of the probative
sort. Neely v. Provident Life & Accident Ins. Co.
of Chattanooga, Tenn., 322 Pa. 417, 185 A. 784, 788.
EVIDENCE REASONABLY TENDING TO SUPPORT VERDICT. Means evidence that is competent, relevant, and material, and which to rational and impartial mind naturally leads, or
involuntarily tends to lead, to conclusion for
which there is valid, just, and substantial reason.
Kelly v. Oliver Farm Equipment Sales Co., 169
Okl. 269, 36 P.2d 888, 891,
EVIDENCE SUFFICIENT IN LAW. Substantial
evidence. Almon v. Morgan County, 245 Ala. 241,
16 So.2d 511, 516.
EVIDENCE TO SUPPORT FINDINGS. In action
to review an order of the Unemployment Compensation Commission "evidence" to support findings meant substantial evidence or such relevant
evidence as a reasonable mind might accept as
adequate to support a conclusion and enough to
justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be
drawn from it is one of fact for jury. Jordan v.
Craighead, 114 Mont. 337, 136 P.2d 526, 528.
EVIDENCE TO SUPPORT THE VERDICT.
Means some legal evidence tending to prove every
material fact in issue as to which the party in
whose favor the verdict was rendered had the
burden of proof. Nicolai-Neppach Co. v. Smith,
154 Or. 450, 58 P.2d 1016, 1024, 107 A.L.R. 1124.
EVIDENT. Clear to the understanding and satisfactory to the judgment; manifest; plain; obvious; conclusive. Russell v. State, 71 Fla. 236,
71 So. 27, 28. Noticeable; apparent to observation. Hamill v. Joseph Schlitz Brewing Co., 165
Iowa 266, 143 N.W. 99, 107. That is "evident"
that suggests more than a mental process, but no
difficulty in seeing that the thing is true. Bremner v. Marc Eidlitz & Son, 118 Conn. 666, 174 A.
172, 174.
A constitutional provision forbidding bail in capital cases
when the proof is "evident," means that, if the evidence is
such as to lead a dispassionate mind to the conclusion that
the accused is guilty, and that if the law is properly administered a conviction would be had of a capital offense, bail
should be denied. Ex parte Vermillion, 102 Tex.Cr.R. 590,
280 S.W. 771; Ex parte Bates, 90 Tex.Cr.R. 406, 235 S.W.
879, 880; Ex parte Dumas, 110 Tex.Cr.R. 1, 7 S.W.2d 90, 9L
Under constitutional provision that all prisoners shall be
bailable unless for capital offenses when the proof is evident, the word "evident" means that the accused, with a
cool and deliberate mind and formed design, did maliciously kill another, and that a dispassionate jury would,
not only convict him, but would also assess the death penalty. Ex parte Redding, 147 Tex.Cr.R. 434, 180 S.W.2d 951,
952; Ex parte Shults, 127 Tex.Cr.R. 484, 77 S.W.2d 877.
—Proof Evident. See Proof.
EVIDENTIA, L. Evidence. See Preuve.
EVIDENTIARY. Having the quality of evidence;
constituting evidence; evidencing. A term introduced by Bentham, and, from its convenience,
adopted by other writers.
EVIDENTIARY FACTS. Facts necessary to
prove the essential or ultimate fact. People ex
rel. Hudson & M. R. Co. v. Sexton, Sup., 44 N.Y.
S.2d 884, 885. Facts which furnish evidence of
existence of some other fact. General Tire &
Rubber Co. v. Cooper, 176 Miss. 491, 165 So. 420,
421; proofs and testimony. In re Britton's Will,
167 Misc. 747, 4 N.Y.S.2d 715, 719; such facts must
be found from testimony and other evidence.
Texas Employers Ins. Ass'n v. Reed, Tex.Civ.App.,
150 S.W.2d 858, 862.
Those which have a legitimate bearing on the matter or
question in issue and which are directly (not inferentially)
established by the evidence in the case. Woodiill v. Patton, 76 Ind. 579, 40 Am.Rep. 269. Facts which can be
directly established by testimony or evidence ;-distinguished from "ultimate facts." Real Estate Title, Ins. &
Trust Co. v. Lederer, D.C.Pa., 229 F. 799, 804.
•
EVIDENTLY. Means in an evident manner, perceptibly, clearly, obviously, plainly. It is employed to express the idea of full-proof conviction.
Tennes v. Tennes, 320 Ill.App. 19, 50 N.E.2d 132,
139.
EVIL. It is an "evil" within rule that either
means or end of conspiracy must be evil, to frustrate or impede a government function, whether
that function is performed under a constitutional
or an unconstitutional law. U. S. v. Rhoads, D.C.
D.C., 48 F.Supp. 175, 176.
EVIL REPUTATION. Character imputed to person in community is generally bad. People v.
Pieri, 269 N.Y. 315, 199 N.E. 495, 497.
EVOCATION. In French law. The withdrawal
of a cause from the cognizance of an inferior
658
EX CONSULTO
court, and bringing it before another court or
judge. In some respects this process resembles
the proceedings upon certiorari.
EX ANTECEDENTIBUS ET CONSEQUENTIBUS
FIT OPTIMA INTERPRETATIO. A passage in
a statute is best interpreted by reference to what
precedes and what follows it. Behrens v. State,
140 Neb. 671, 1 N.W.2d 289, 292; The best interpretation [of a part of an instrument] is made from
the antecedents and the consequents, [from the
preceding and following parts.] 2 Inst. 317.
The law will judge of a deed or other instrument, consisting of divers parts or clauses, by looking at the whole;
and will give to each part its proper office, so as to ascertain and carry out the intention of the parties. Broom,
Max. *577. The whole instrument is to be viewed and
compared in all its parts, so that every part of it may be
made consistent and effectual. 2 Kent, Comm. 555.
EVOLUTION. Every useful art has its technique
which is practiced by those who are skilled in it,
and which is broadened in its usefulness thereto
from precedent to precedent. This is the process
of "evolution"—a phenomenon in which the expectable follows the expectable. Less Car Load
Lots Co. v. Pennsylvania R. Co., D.C.N.Y., 10 F.
Supp. 642, 648.
EVOLVED. Means "developed" and may apply
to any person attaining highly developed mental
training and experience in arts and sciences and
profession of teaching, medicine, or law. In re
Carpenter's Estate, 163 Misc. 474, 297 N.Y.S. 649,
654.
EX ARBITRIO JUDICIS. At, in, or upon the discretion of the judge. 4 Bl. Comm. 394. A term
of the civil law. Inst. 4, 6, 31.
EX ASSENSU CURIAE. By or with the consent
of the court.
EWAGE. (L. Fr. Ewe, water.) In old English
law. Toll paid for water passage. Cowell. The
same as aquage or aquagium. Tomlins.
EWBRICE. Adultery; spouse-breach; marriagebreach. Cowell; Tomlins.
EWRY. An office in the royal household where
the table linen, etc., is taken care of. Wharton.
EX. A latin preposition meaning from, out of, by,
on, on account of, or according to.
A prefix, denoting removal, cessation or former.
Prefixed to the name of an office, relation, status,
etc., it denotes that the person spoken of once
occupied that office or relation, but does so no
longer, or that he is now out of it. Thus, exmayor, ex-partner, ex-judge.
A prefix which is equivalent to "without," "reserving," or "excepting." In this use, probably an
abbreviation of "except." Thus, ex-interest, excoupons.
"A sale of bonds 'ex. July coupons' means a sale reserving the coupons; that is, a sale in which the seller
receives, in addition to the purchase price, the benefit of
the coupons, which benefit he may realize either by detaching them or receiving from the buyer an equivalent consideration." Porter v. Wormser, 94 N.Y. 445.
Also used as an abbreviation for "exhibit." See
Dugan v. Trisler, 69 Ind.. 555.
EX ABUNDANTL Out of abundance; abundantly; superfluously; more than sufficient. Calvin.
EX ABUNDANT! CAUTELA. Lat. Out of abundant caution. "The practice has arisen abundanti
cautela." 8 East, 326; Lord Ellenborough, 4
Maule & S. 544.
EX ADVERSO. On the other side. 2 Show. 461.
Applied to counsel.
EX ASSENSU PATRIS. By or with the consent
of the father.
A species of dower ad ostium ecclesice, during the life of
the father of the husband; the son, by the. father's copsent expressly given, endowing his wife with parcel of his
father's lands. Abolished by 3 & 4 Wm. IV, c. 105, § 13.
EX ASSENSU SUO. With his assent. Formal
words in judgments for damages by default.
Comb. 220.
EX BONIS. Of the goods or property. A term
of the civil law; distinguished from in bonds, as
being descriptive of or applicable to property not
in actual possession. Calvin.
EX CATHEDRA. From the chair. Originally
applied to the decisions of the popes from their
cathedra, or chair. Hence, authoritative; having
the weight of authority.
EX CAUSA, L. Lat. By title.
EX CERTA SCIENTIA. Of certain or sure
knowledge. These words were anciently used in
patents, and imported full knowledge of the subject-matter on the part of the king. See 1 Coke,
40b.
EX COLORS, By color; under color of; under
pretense, show, or protection of. Thus, ex colore
officii, under color of office.
EX COMITATE. Out of comity or courtesy.
EX COMMODATO. From or out of loan. A term
applied in the old law of England to a right of
action arising out of a loan, (commodatum.)
Glanv. lib. 10, c. 13; 1 Reeve, Eng. Law, 166.
EX ZEQUITATE. According to equity; in equity.
Fleta, lib. 3, c. 10, § 3.
EX COMPARATIONE SCRIPTORUM. By a comparison of writings or handwritings. A term in
the law of evidence. Best, Pres. 218.
EX ./EQUO ET BONO. A phrase derived from
the civil law, meaning, in justice and fairness;
according to what is just and good; according
to equity and conscience. 3 Bl. Comm. 163.
EX CONCESSIS. From the premises granted.
According to what has been already allowed.
EX ALTERA PARTE. Of the other part.
EX CONSULTO. With consultation or deliberation.
659
EX CONTINENT!
EX CONTINENTL Immediately; without any interval or delay; incontinently. A term of the
civil law. Calvin.
EX CONTRACTU. From or out of a contract.
In both the civil and the common law; rights and causes
of action are divided into two classes,-those arising ex
contractu, (from a contract,) and those arising ex delicto,
(from a delict or tort.) See 3 Bl.Comm. 117; Mackeld.
Rom. Law, § 384. See Scharf v. People, 134 Ill. 240, 24 N.E.
761; Federal Life Ins. Co. v. Maxam, 70 Ind.App. 266, 117
N.E. 801, 807.
If cause of action declared in pleading arises from breach
of promise, the action is "ex contractu". Chambers v.
Birmingham Trust & Savings Co., 232 Ala. 609, 168 So.
893.
EX CURIA. Out of court; away from the court.
EX DEBITO JUSTITIZE. From or as a debt of
justice; in accordance with the requirement of
justice; of right; as a matter of right. The opposite of ex gratia, (q. v.). 3 Bl. Comm. 48, 67.
EX DEFECTU SANGUINIS. From failure of
blood; for want of issue.
EX DELICTO. From a delict, tort, fault, crime,
or malfeasance.
In both the civil and the common law, obligations and
causes of action are divided into two great classes,-those
arising ex contractu, (out of a contract,) and those ex
delicto. The latter are such as grow out of or are founded
upon a wrong or tort, e. g., trespass, trover, replevin.
These terms were known in English law at a very early,
period. See Inst. 4, 1, pr.; Mackeld.Rom.Law, § 384; 3
Bl.Comm. 117; Bract. fol. 101b; King v. New Orleans Ry.
& Light Co., 140 La. 843, 74 So. 168, 169; Lamb v. McHan,
17 Ga.App. 5, 86 S.E. 252, 253; Seney v. Knight, 292 Ill.
206, 126 N.E. 761, 763.
An action "ex delicto" is an action of tort; an action
arising out of fault, misconduct, or malfeasance. Sayers &
Muir Service Station v. Indian Refining Co., 266 Ky. 779;
100 S.W.2d 687, 689. If cause of action declared in pleading arises from breach of duty growing out of contract, it
is in form "ex delicto" and case. Chambers v. Birmingham Trust & Savings Co., 232 Ala. 609, 168 So. 893.
EX DELICTO NON EX SUPPLICIO EMERGIT
INFAMIA. Infamy arises from the crime, not
from the punishment.
EX DEMISSIONE (commonly abbreviated ex
dem.) Upon the demise. A phrase forming part
of the title of the old action of ejectment.
EX DIRECTO. Directly; immediately. Story,
Bills, § 199.
EX DIUTURNITATE TEMPORIS, OMNIA PILESUMUNTUR SOLEMNITER ESSE ACTA. From
length of time [after lapse of time] all things are
presumed to have been done in due form. Co.
Litt. 6b; Best, Ev. Introd. § 43; 1 Greenl. Ev. §
20.
EX DOLO MALO. Out of fraud; out of deceitful
or tortious conduct. A phrase applied to obligations and causes of action vitiated by fraud or
deceit.
EX DOLO MALO NON ORITUR ACTIO. Out of
fraud no action arises; fraud never gives a right
of action. No court will lend its aid to a man
who founds his cause of action upon an immoral
or illegal act. Cowp. 343; Broom, Max. 729.
EX DONATIONIBUS AUTEM FEODA MILITARIA
MAGNUM SERJEANTIUM NON CONTINENTIBUS ORITUR NOBIS QUODDAM
NOMEN GENERALE, QUOD EST SOCAGIUM.
Co. Litt. 86. From grants not containing military
fees or grand serjeanty, a kind of general name
is used by us, which is "socage."
EX EMPTO. Out of purchase; founded on purchase. A term of the civil law, adopted by Bracton. Inst. 4, 6, 28; Bract. fol. 102. See Actio ex
Empto.
EX FACIE. From the face; apparently; evidently. A term applied to what appears on the
face of a writing.
EX FACTO. From' or in consequence of a fact
or action; actually. Usually applied to an unlawful or tortious act as the foundation of a title,
etc. Sometimes used as equivalent to "de facto."
Bract. fol. 172.
EX FACTO JUS ORITUR. The law arises out of
the fact. Broom, Max. 102. A rule of law continues in abstraction and theory, until an act is
done on which it can attach and assume as it were
a body and shape. Best, Ev. Introd. § 1.
EX FICTIONE JURIS. By a fiction of law.
EX FREQUENTI DELICTO AUGETUR PCENA.
2 Inst. 479. Punishment increases with increasing
crime.
EX GRATIA. Out of grace; as a matter of grace,
favor, or indulgence; gratuitous. A term applied
to anything accorded as a favor; as distinguished
from that which may be demanded ex debito, as
a matter of right.
EX GRAVI QUERELA. (From or on the grievous
complaint.) In old English practice. The name
of a writ (so called from its initial words) which
lay for a person to whom any lands or tenements
in fee were devised by will, (within any city,
town, or borough wherein lands were devisable by
custom,) and the heir of the devisor entered and
detained them from him. Fitzh. Nat. Brev. 198,
L, et seq.; 3 Reeve, Eng. Law, 49. Abolished by
St. 3 & 4 Wm. IV. c. 27, § 36.
EX HYPOTHESI. By the hypothesis; upon the
supposition; upon the theory or facts assumed.
EX INDUSTRIA. With contrivance or deliberation; designedly; on purpose. See 1 Kent, Comm.
318; Martin v. Hunter, 1 Wheat 334, 4 L.Ed. 97.
EX INTEGRO. Anew; afresh.
EX JUSTA CAUSA. From a just or lawful cause;
by a just or legal title.
EX LEGE. By the law; by force of law; as a
matter of law.
EX LEGIBUS. According to the laws. A phrase
of the civil law, which means according to the intent or spirit of the law, as well as according to
the words or letter. Dig. 50, 16, 6. See Calvin.
660
EX PARTE
EX LICENTIA REGIS. By the king's license. 1
Bl. Comm. 168, note.
EX NECESSITATE. Of necessity. 3 Rep. Ch.
123.
EX LOCATO. From or out of lease or letting.
A term of the civil law, applied to actions or rights
of action arising out of the contract of locatum,
(q. v.) Inst. 4, 6, 28. Adopted at an early period
in the law of England. Bract. fol. 102; 1 Reeve,
Eng. Law, 168.
EX NECESSITATE LEGIS. From or by necessity of law. 4 Bl. Comm. 394.
EX MALEFICIO. Has been defined variously as
from or growing out of wrongdoing; tortious;
tortiously; growing out of, or founded on, misdoing or tort; on account of misconduct; by
virtue of or out of an illegal act. "Ex maleficio"
is probably synonymous with "malfeasance".
Lucas v. Central Missouri Trust Co., 350 Mo. 593,
166 S.W.2d 1053, 1056.
This term is frequently used in the civil law as the synonym of "ex delicto," (q. v.,) and is thus contrasted with
"ex contractu," In this sense it is of more rare occurrence
in the common law, though found in Bracton (fols. 99, 101,
102.)
EX NIHILO NIHIL FIT. From nothing nothing
comes. Jackson v. Waldron, 13 Wend. N.Y. 178,
221; Root v. Stuyvesant, 18 Wend. N.Y. 257, 301.
EX MALEFICIO NON ORITUR CONTRACTUS.
A contract cannot arise out of an act radically
vicious and illegal. 1 Term, 734; 3 Term, 422;
Broom, Max. 734.
EX MALLS MORIBUS BONZE LEGES NAIVE
SUNT. 2 Inst. 161. Good laws arise from evil
morals, i. e., are necessitated by the evil behavior
of men.
EX MALITIA. From malice; maliciously. In
the law of libel and slander, this term imports
a publication that is false and without legal excuse. Dixon v. Allen, 69 Cal. 527, 11 P. 179.
EX MERO MOTU. Of his own mere motion; of
his own accord; voluntarily and without prompting or request.
Royal letters patent which are granted at the crown's
own instance, and without request made, are said to be
granted ex mero motu. When a court interferes, of its own
motion, to object to an irregularity, or to do something
which the parties are not strictly entitled to, but which will
prevent injustice, it is said to act ex mero motu, or ex
proprio motu, or sua sponte, all these terms being here
equivalent.
EX MORA. From or in consequence of delay.
Interest is allowed ex mora; that is, where there
has been delay in returning a sum borrowed. A
term of the civil law. Story, Bailm. § 84.
EX MORE. According to custom. Calvin.
EX MULTITUDINE SIGNORUM, COLLIGITUR
IDENTITAS VERA. From a great number of
signs or marks, true identity is gathered or made
up. Bac. Max. 103, in regula 25. A thing described by a great number of marks is easily
identified, though, as to some, the description may
not be strictly correct. Id.
EX MUTUO. From or out of loan. In the old
law of England, a debt was said to arise ex mutuo
when one lent another anything which consisted
in number, weight, or measure. 1 Reeve, Eng.
Law, 159; Bract. fol. 99.
EX NECESSITATE REI. From the necessity or
urgency of • the thing or case. 2 Pow. Dev. (by
Jarman,) 308.
EX NUDO PACTO NON ORITUR [NASCITUR]
ACTIO. Out of a nude or naked pact [that is, a
bare parol agreement without consideration] no
action arises. Bract. fol. 99; Fleta, lib. 2, c. 56, • §
3; Plowd. 305. Out of a promise neither attended with particular solemnity (such as belongs to
a specialty) nor with any consideration no legal
liability can arise. 2 Steph. Comm. 113. A parol
agreement, without a valid consideration, cannot
be made the foundation of an action. A leading
maxim both of the civil and common law. Cod.
2, 3, 10; Id. 5, 14, 1; 2 Bl. Comm. 445; Smith,
Cont. 85, 86.
EX OFFICIO. From office; by virtue of the office; without any other warrant or appointment
than that resulting from the holding of a particular office.
Powers may be exercised by an officer which are not
specifically conferred uopn him, but are necessarily implied
in his office; these are ex officio. Thus, a judge has ex
officio the powers of a conservator of the peace. Courts
are bound to notice public statutes judicially and ex officio.
King v. Physicians' Casualty Ass'n of America, 97 Neb. 637,
150 N.W. 1010, 1011; Lobrano v. Police Jury of Parish of
Plaquemines, 150 La. 14, 90 So. 423, 424; Allin v. Mercer
County, 174 Ky. 566, 192 S. W. 638, 640.
EX OFFICIO INFORMATION. In English law.
A criminal information filed by the attorney general ex officio on behalf of the crown, in the court
of king's bench, for offenses more immediately affecting the government, and to be distinguished
from informations in which the crown is the
nominal prosecutor. Mozley & Whitley; 4 Steph.
Comm. 372-378.
EX OFFICIO OATH. An oath taken by offending
priests; abolished by 13 Car. II. St. 1, c. 12.
EX OFFICIO SERVICES. Services which the
law annexes to a particular office and requires
the incumbent to perform. City of Birmingham
v. Hawkins, 208 Ala. 79, 94 So. 62, 64; Nichols v.
Galveston County, 111 Tex. 50, 228 S.W. 547, 548.
"Ex officio services," which deputy attorney general may
perform in place of Attorney General, are services imposed
by law on public officer by virtue of his office and relating
to public interests or business of county or state. Chemical
Bank & Trust Co. v. Oakland County, 264 Mich. 673, 251
N.W. 395.
EX PACTO ILLICITO NON ORITUR ACTIO.
From an illegal contract an action does not arise.
Broom, Max. 742. See 7 Clark & F. 729.
EX PARTE. On one side only; by or for one
party; done for, in behalf of, or on the application of, one party only.
661
EX PARTE
A judicial proceeding, order, injunction, etc., is said to be
ex parte when it is taken or granted at the instance and for
the benefit of one party only, and without notice to, or
contestation by, any person adversely interested. Janin v.
Logan, 209 Ky. 811, 273 S.W. 531, 532; Van Alen v. Superior Court in and for Los Angeles County, 37 Cal.App. 696,
174 P. 672; Stella v. Mosele, 299 53, 19 N.E.2d 433,
435.
In its primary sense, ex parte, as applied to an application in a judicial proceeding, means that it is made by a
person who is not a party to the proceeding, but who has
an interest in the matter which entitles him to make the
application. Thus, in a bankruptcy proceeding or an
administration action, an application by A. B., a creditor,
or the like, would be described as made "ex parte A. B.,"
e., on the part of A. B.
In its more usual sense, ex parte means that an application is made by one party to a proceeding in the absence
of the other. Thus, an ex parte injunction is one granted
without the opposite party having had notice of the application. It would not be called "ex parte" if he had proper
notice of it, and chose not to appear to oppose it. Sweet.
"Ex parte," in the heading of a reported case,
signifies that the name following is that of the
party upon whose application the case is heard.
EX PARTE MATERNA. On the mother's side;
of the maternal line.
EX PARTE PATERNA. On the father's side;
of the paternal line.
The phrases "ex parte materna" and "ex parte paterna"
denote the line or blood of the mother or father, and have
no, such restricted or limited sense as from the mother or
father exclusively. Banta v. Demarest, 24 N.J.L. 431.
EX PARTE TALIS. A writ that lay for a bailiff
or receiver, who, having auditors appointed to
take his accounts, cannot obtain of them reasonable allowance, but is cast into prison. Fitzh.
Nat. Brev. 129.
EX PAUCIS DICTIS INTENDERE PLURIMA
POSSIS. Litt. § 384. You can imply many things
from few expressions.
EX PAUCIS PLURIMA CONCIPIT INGENIUM.
Litt. § 550. From a few words or hints the understanding conceives many things.
EX POST FACTO. After the fact; by an act or
fact occurring after some previous act or fact,
and relating thereto; by subsequent matter; the
opposite of ab initio. Thus, a deed may be good
ab inittio, or, if invalid at its , inception, may be
confirmed by matter ex post facto.
EX POST FACTO LAW. A law passed after the
occurrence of a fact or commission of an act,
which retrospectively changes the legal consequences or relations of such fact or deed. By
Const. U. S. art. 1, § 10, the states are forbidden
to pass "any ex post facto law." In this connection the phrase has a much narrower meaning
than its literal translation would justify, as will
appear from the extracts given below.
A statute which changes punishment which may be
imposed for a crime theretofore committed is "ex post
facto" only if it prescribes or permits imposition of a
greater sentence. People ex rel. Pincus v. Adams, 274 N.Y.
447, 9 N.E.2d 46, 110 A.L.R. 1303.
An "ex post facto law" has been defined as (1) Every law
that makes an action, done before the passing of the law,
and which was innocent when done, criminal, and punishes
such action. (2) Every law that aggravates a crime, or
makes it greater than it was when committed. (3) Every
law that changes the punishment, and inflicts a greater
punishment than the law annexed to the crime when cornmitted. (4) Every law that alters the legal rules of evidence, and receives less or different testimony than the law
required at the time of the commission of the offense, in
order to convict the offender. All these, and similar laws,
are prohibited by the constitution. But a law may be ex
post facto, and still not amenable to this constitutional.
inhibition; that is, provided it mollifies, instead of aggravating, the rigor of the criminal law. Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356; 3 Story, Const. 212; State
v. Malloy, 95 S.C. 441, 78 S.E. 995, 997, Ann.Cas.1915C, 1053;
In re Jamestown Caucus Law, 43 R.I. 421, 112 A. 900, 902;
State v. Teasley, 194 Ala. 574, 69 So. 723, 725, Ann.Cas.
1918E, 347; Beazell v. State of Ohio, 269 U.S. 167, 46 S.Ct.
68, 70 L.Ed. 216; Hernandez v. State, 43 Ariz. 424, 32 P.
2d 18, 24.
An "ex post facto law" includes every law that creates
and punishes a criminal offense which, when done before
the passing of the law, was innocent, and every law that
aggravates a crime or makes it greater than it was when
committed, and every law that inflicts a greater punishment than was attached to the crime when committed.
State v. Pleason, 56 N. D. 499, 218 N.W. 154, 155.
An "ex post facto law" is defined as a law which provides
for the infliction of punishment upon a person for an act
done which, when it was committed, was innocent; a law
which aggravates a crime or makes it greater than when it
was committed; a law that changes the punishment or
inflicts a greater punishment than the law annexed to the
crime when it was committed ; a law that changes the rules
of evidence and receives less or different testimony than
was required at the time of the commission of the offense
in order to convict the offender; a law which, assuming to
regulate civil rights and remedies only, in effect imposes a
penalty or the deprivation of a right which, when done,
was lawful; a law which deprives persons accused of crime
of some lawful protection to which they have become entitled, such as the protection of a former conviction or
acquittal, or of the proclamation of amnesty; every law
which, in relation to the offense or its consequences, alters
the situation of a person to his disadvantage. State v.
Rowe, 116 N.J.L. 48, 181 A. 706.
An "ex post facto law" is one which makes an act punishable in a manner in which it was not punishable when
it was committed. Statler v. U. S. Savings & Trust Co.,
122 Pa.Super. 189, 186 A. 290, 292; Southern Kraft Corporation v. Hardin, 205 Ark. 512, 169 S.W.2d 637, 643.
An "ex post facto law" is one which makes a crime of
an act which when committed was not a crime or a law
which increases the punishment for an act already committed. Commonwealth ex rel..Wall v. Smith, 345 Pa. 512,
29 A.2d 912, 913.
An "ex post facto law" is one which renders an act
punishable in manner in which it was not punishable when
it was committed, or which deprives accused of any substantial right or immunity possessed by him before its
passage as to prior offenses. People of U. S. ex rel.
Umbenhowar v. McDonnell, D.C.Ill., 11 F.Supp. 1014, 1015.
An ex post facto law is one which renders an act punishable in manner in which it was not punishable when
committed. Such a law may inflict penalties on the person,
or pecuniary penalties which swell the public treasury.
The legislature is therefore prohibited from passing a law
by which a man's estate, or any part of it, shall be seized
for a crime, which was not declared, by some previous law,
to render him liable to such punishment. Fletcher v. Peck,
6 Cranch, 87, 138, 3 L.Ed. 162.
An increase in possible penalty is "ex post facto" regardless of length of sentence actually imposed. Ex parte
Flora, Ohio App., 31 N.E.2d 482, 485.
The plain and obvious meaning of prohibition is that the
legislature shall not pass any law, after a fact done by any
citizen, which shall have relation to that fact, so as to
punish that which was innocent when done; or to add to
the punishment of that which was criminal; or to increase
the malignity of a crime; or to retrench the rules of evidence, so as to make conviction more easy. This definition
of an ex post facto law is sanctioned by long usage. Strong
v. State, 1 Black., Ind., 196.
662
EX TURPI
The term "ex post facto law," in the United States constitution, cannot be construed to include and to prohibit
the enacting any law after a fact, nor even to prohibit the
depriving a citizen of a vested right to property. Calder v.
Bull, 3 Da11. 386, 1 L.Ed. 648.
Any law passed after commission of offense for which the
defendant is tried which inflicts greater punishment or
which alters situation of accused is "ex post facto". United
States v. Platt, D.C.Tex., 31 F.Supp. 788, 793.
Statute which punishes as a crime an act previously comnlitted, which was innocent when done, which makes more
burdensome punishment for a crime after its commission,
or which deprives one charged with crime of any defense
available according to law at time act was committed, is
"ex post facto". People ex rel. Luciano v. Murphy, 290
N.Y.S. 1011, 1014, 160 Misc. 573.
The operation of a statute to repeal, extend the period
of, or provide for the tolling of a statute of limitations
under which a complete defense has already accrued, would
be "ex post facto". Hill v. State, 146 Tex.Cr.R. 333, 171
S.W.2d 880, 882, 883, 884.
The prohibition of "ex post facto" laws applies only to
criminal or penal matters. Bannister v. Bannister, 181 Md.
177, 29 A.2d 287, 289; Garrett Freight Lines v. State Tax
Commission, 103 Utah 390, 135 P.2d 523, 527, 146 A.L.R.
1003; Southern Kraft Corporation v. Hardin, 205 Ark. 512,
169 S.W.2d 637, 643.
To render a statute "ex post facto," it must be one which
imposes punishment for an act which was not punishable
when it was committed, or imposes additional punishment
-or alters the situation of the accused to his disadvantage.
Andrus v. McCauley, D.C.Wash., 21 F.Supp. 70.
Trial procedure may be changed by Legislature, and new
procedure may be made applicable to offenses previously
committed, without violation of constitutional provision.
People ex rel. Pincus v. Adams, 274 N.Y. 447, 9 N.E.2d 46,
49, 50, 110 A.L.R. 1303.
"Ex post facto" and "retrospective" are not convertible
terms. The latter is a term of wider signification than the
former and includes it. All ex post facto laws are necessarily retrospective, but not e converso. A curative or confirmatory statute is retrospective, but not ex post facto.
Constitutions of nearly all the states contain prohibitions
against ex post facto laws, but only a few forbid retrospective legislation in specific terms. Black, Const.Prohib. §§
170, 172, 222.
Retrospective laws divesting vested rights are impolitic
and unjust; but they are not "ex post facto laws," within
the meaning of the constitution of the United States, nor
repugnant to any other of its provisions; and, if not
repugnant to the state constitution, a court cannot pronounce them to be void, merely because in their judgment
they are contrary to the principles of natural justice.
Albee v. May, 2 Paine, 74 Fed.Cas.No.134.
Every retrospective act is not necessarily an ex post facto
law. That phrase embraces only such laws as impose or
affect penalties or forfeitures. Locke v. New Orleans, 4
Wall. 172, 18 L. Ed. 334.
Retrospective laws which do not impair the obligation of
contracts, or affect vested rights, or partake of the character of ex post facto laws, are not prohibited by the constitution. Bay v. Gage, 36 Barb., N.Y., 447.
The act providing that every sentence of death imposed
shall be by electrocution is not an "ex post facto law"
because of its retrospective effect. State ex rel. Pierre v.
Jones, 200 La. 808, 9 So.2d 42, 45, 47.
EX PRAZECEDENTIBUS ET CONSEQUENTIBUS
OPTIMA FIT INTERPRETATIO. 1 Roll. 374.
The best interpretation is made from the context.
EX PROPRIO MOTU. Of his own accord. See
Ex Mero Motu.
EX PROPRIO VIGORE. By their or its own
force. 2 Kent, Comm. 457.
EX PROVISIONE HOMINIS. By the provision of
man. By the limitation of the party, as distinguished from the disposition of the law. 11 Coke,
80b.
EX PROVISIONE MARITI. From the provision
of the husband.
EX QUASI CONTRACTU. From quasi contract.
Fleta, lib. 2, c. 60.
EX RELATIONE. Upon relation or information.
Legal proceedings which are instituted by the attorney
general (or other proper person) in the name and behalf of
the state, but on the information and at the instigation of
an individual who has a private interest in the matter, are
said to be taken "on the relation" (ex relatione) of such
person, who is called the "relator." Such a cause is
usually entitled thus : "State ex rel. Doe v. Roe."
In the books of reports, when a case is said to be
reported ex relatione, it is meant that the reporter derives
his account of it, not from personal knowledge, but from
the relation or narrative of some person who was present
at the argument.
EX RIGORE JURIS. According to the rigor or
strictness of law; in strictness of law. Fleta,
lib. 3, c. 10, § 3.
EX SCRIPTIS OLIM VISIS. From writings formerly seen.
A term used as descriptive of that kind of proof of handwriting where the knowledge has been acquired by the witness having seen letters or other documents professing fo
be the handwriting of the party, and having afterwards
communicated personally with the party upon the contents
of those letters or documents, or having otherwise acted
upon them by written answers, producing further correspondence or acquiescence by the party in some matter to
which they relate, or by the witness transacting with the
party some business to which they relate, or by any other
mode of communication between the party and the witness
which, in the ordinary course of the transactions of life,
induces a reasonable presumption that the letters or documents were the handwriting of the party. 5 Adol. & E.
730.
EX SHIP. See Ship.
EX STATUTO. According to the statute. Fleta.
lib. 5, c. 11, § 1.
EX STIPULATU ACTIO. In the civil law. An
action of stipulation. An action given to recover
marriage portions. Inst. 4, 6, 29.
EX TEMPORE. From or in consequence of time;
by lapse of time. Bract. fols. 51, 52. Ex diuturno
tempore, from length of time. Id. fol. 51b.
Without preparation or premeditation.
EX TESTAMENTO. From, by, or under a will.
The opposite of ab intestato (q. v.).
EX TOTA MATERIA EMERGAT RESOLUTIO.
The explanation should arise out of the whole subject-matter; the exposition of a statute should be
made from all its parts together. Wing. Max. 238.
EX TURPI CAUSA NON ORITUR ACTIO. Out
of a base [illegal, or immoral] consideration, an
action does [can] not arise. 1 Selw. N. P. 63;
Broom, Max. 730, 732; Story, Ag. § 195.
No disgraceful matter can ground an action. Eidson v.
Maddox, 195 Ga. 641, 24 S.E.2d 895, 897.
663
EX TURPI
EX TURK CONTRACTU ACTIO NON ORITUR.
From an immoral or iniquitous contract an action
does not arise. A contract founded upon an illegal or immoral consideration cannot be enforced by action. 2 Kent, Comm. 466; Dig. 2, 14,
27, 4.
EX UNA PARTE. Of one part or side; on one
side.
Old English law. A collector of the public moneys; a tax gatherer. Thus, exactor regis was the
name of the king's tax collector, who took up the
taxes and other debts due the treasury.
EXALTARE. In old English law. To raise; to
elevate. Frequently spoken of water, i. e., to
raise the surface of a pond or pool.
EXAMEN. L. Lat. A trial. Examen computi,
the balance of an account. Townsh. Pl. 223.
EX UNO DISCES OMNES. From one thing you
can discern all.
EX UTRAQUE PARTE. On both sides. Dyer,
126b.
EX UTRISQUE PARENTIBUS CONJUNCTI. Related on the side of both parents; of the whole
blood. Hale, Corn. Law, c. 11.
EX VI TERMINI. From or by the force of the
term. From the very meaning of the expression
used. 2 Bl. Comm. 109, 115.
EX VISCERIBUS. From the bowels. From the
vital part, the very essence of the thing. 10 Coke,
24b; Homer v. Shelton, 2 Metc. Mass. 213. Ex
visceribus verborum, from the mere words and
nothing else. 1 Story, Eq. Jur. § 980; Fisher v.
Fields, 10 Johns. N.Y. 495.
EX VISITATIONE DEI. By the dispensation of
God; by reason of physical incapacity. Anciently,
when a prisoner, being arraigned, stood silent instead of pleading, a jury was impaneled to inquire whether he obstinately stood mute or was
dumb ex visitatione Dei. 4 Steph. Comm. 394.
Also by natural, as distinguished from violent,
causes. When a coroner's inquest finds that the
death was due to disease or other natural cause,
it is frequently phrased "ex visitatione Dei."
EX VISU SCRIPTIONIS. From sight of the
writing; from having seen a person write. A
term employed to describe one of the modes of
proof of handwriting. Best, Pres. 218.
EX VOLUNTATE. Voluntarily; from freewill or
choice.
EXACTION. The wrongful act of an officer or
other person in compelling payment of a fee or
reward for his services, under color of his official
authority, where no payment is due.
Between "extortion" and "exaction" there is this difference : that in the former case the officer extorts more
than his due, when something is due to him; in the latter,
he exacts what is not his due, when there is nothing due to
him. Co.Litt. 368.
EXACTLY ALIKE. Representation that the living apartment on the first floor was exactly like
the living apartment on the second floor is specific and definite; exactly alike meaning not absolutely identical, but substantially so in size, design, finish, and fixtures. Lipsher v. Resnikoff, 99
Conn. 13, 120 A. 859.
EXACTOR.
Civil law. A gatherer or receiver of money; a
collector of taxes. Cod. 10, 19.
EXAMINATION. An investigation; search; interrogating.
Criminal Practice
An investigation by a magistrate of a person who has
been charged with crime and arrested, or of the facts and
circumstances which are alleged to have attended the crime
and to fasten suspicion upon the party so charged, in order
to ascertain whether there is sufficient ground to hold him
to bail for his trial by the proper court. U. S. W. Stanton,
C.C.A.Conn., 17 C.C.A. 475, 70 F. 890; State v. Conrad, 95
N.C. 669. The preliminary hearing to determine whether
person charged with having committed a crime should be
held for trial. Commonwealth v. Cohen, 102 Pa.Super. 397,
157 A. 32, 33.
Trial Practice
The examination of a witness consists of the series of
questions put to him by a party to the action, or his counsel, for the purpose of bringing before the court and jury
in legal form the knowledge which the witness has of the
facts and matters in dispute, or of probing and sifting his
evidence previously given.
Of a long account. This phrase does not mean
examination of the account to ascertain the result
or effect of it, but proof by testimony of correctness of items composing it. Magown v. Sinclair,
5 Daly N.Y. 63; State ex rel. Hustisford Light,
Power & Mfg. Co. v. Grimm, 208 Wis. 366, 243
N.W. 763.
Of bankrupt. This is the interrogation of a bankrupt, in the course of proceedings in bankruptcy,
or prior to the adjudication (Cameron v. United
States, 231 U.S. 710, 34 S.Ct. 244, 58 L.Ed. 448;
In re Fleischer, D.C.N.Y., 151 F. 81), concerning
the conduct of his business, the cause of his bankruptcy, his dealings with his creditors and other
persons, the amount, kind, and whereabouts of
his property, and all matters which may affect
the administration and settlement of his estate.
This is authorized by Bankruptcy Act, § 7, 30 Stat.
548, 11 U.S.C.A. § 25. The bankrupt's wife or any
other person may also be examined concerning
the bankrupt's acts, conduct, or property. Bankruptcy Act, § 21, 30 Stat. 551, as amended by Act
Feb. 5, 1903, c. 487, § 7, 32 Stat. 798, 11 U.S.C.A. §
44. In re Horgan, C.C.A.N.Y., 39 C.C.A. 118, 98
F. 414.
Of invention. An inquiry made at the patentoffice, upon application for a patent, into the novelty and utility of the alleged invention, and as
to its interfering with any other patented invention. Rev.St. U. S. § 4893, 35 U.S.C.A. § 36.
Of title. An investigation made by or for a person who intends to purchase real estate, in the
offices where the public records are kept, to ascertain the history and present condition of the title
to such land, and its status with reference to liens,
incumbrances, clouds, etc.
664
EXCEPTIO
Of wife. See Private Examination.
On his own behalf. For executor or devisee to be
"examined . on his own behalf", such executor or
devisee must be a party to the action. In re
Custer's Estate, 229 Iowa 1061, 295 N.W. 848, 852.
For "Cross-Examination," "De Bene Esse", "Direct Examination," "Preliminary Examination,"
"Pro Interesse Suo," "Reexamination," and "Separate Examination," see those titles.
EXAMINED COPY. A copy of a record, public
book, or register, and which has been compared
with the original. 1 Campb. 469.
EXAMINER. English law. A person appointed
by a court to take the examination of witnesses
in an action, e., to take down the result of their
interrogation by the parties or their counsel, either by written interrogatories or viva voce. An
examiner is generally appointed where a witness
is in a foreign country, or is too ill or infirm to
attend before the court, and is either an officer
of the court, or a person specially appointed for
the purpose. Sweet.
New Jersey. An examiner is an officer appointed by the court of chancery to take testimony in
causes depending in that court. His powers are
similar to those of the English examiner in chancery.
Patent Office. An officer in the patent-office
charged with the duty of examining the patentability of inventions for which patents are asked.
For "Special Examiner," see that title.
EXAMINER IN CHANCERY. An officer of the
court of chancery, before whom witnesses are
examined, and their testimony reduced to writing,
for the purpose of being read on the hearing of
the cause. Cowell.
EXAMINERS. Persons appointed to question
students of law in order to ascertain their qualifications before they are admitted to practice.
EXANNUAL ROLL. In old English practice. A.
roll into which (in the old way of exhibiting sheriffs' accounts). the illeviable fines and desperate
debts were transcribed, and which was annually
read to the sheriff upon his accounting, to see
what might be gotten. Cowell.
EXCAMB. In Scotch law. To exchange. 6 Bell,
App. Cas. 19, 22.
EXCAMBIATOR. An exchanger of lands; a
broker. Obsolete.
EXCAMBION, In Scotch law. Exchange. 1
Forb. Inst. pt. 2, p. 173.
EXCAMBIUM. An exchange; a place where
merchants meet to transact their business; also
an equivalent in recompense; a recompense in
lieu of dower ad ostium ecclesice.
EXCELLENCY.
America. The title is sometimes given to the chief
executive of a state or of the nation.
English law. The title of a viceroy, governor
general, ambassador, or commander in chief.
EXCEPT. But. In re Naftzger's Estate, 24 Cal.
2d 595, 150 P.2d 873, 875; Not including. In re
Kelly's Estate, 153 Misc. 445, 274 N.Y.S. 488. Other than, In re Nelson's Estate, 152 Misc. 245, 273
N.Y.S. 268; Ingram v. State, 241 Ala. 166, 3 So.2d
431, 432; Otherwise than, State v. White, 195 La.
1028, 197 So. 745, 747; Reserve. Adams v. Osage
Tribe of Indians, C.C.A.Okl., 59 F.2d 653, 655;
Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 656,
136 A.L.R. 286. To exclude from an enumeration,
the scope of statement or enactment, a privilege,
etc.; to leave out of account or consideration. In
re Garvin's Estate, 335 Pa. 542, 6 A.2d 796, 800;
Rickman v. Commonwealth, 195 Ky. 715, 243 S.W.
929.
The expression "except for" is synonymous in
many cases with "but for" and "only for." Rickman v. Commonwealth, 195 Ky. 715, 243 S.W. 929.
EXCEPT AS PROVIDED BY LAW. As used in
statute held to refer to statutory and not general
law of state, Pace v. Pace Bros. Co., 91 Utah 132,
59 P.2d 1, 8.
EXCEPT FOR THE INTESTATE SHARE OF
THE SURVIVING SPOUSE, IF ANY, OF SUCH
RELICT. Phrase as used in statute relating to
disposition of property coming from a deceased
spouse to relict dying intestate and without issue,
refers to share a surviving spouse would take under section covering generally distribution of an
intestate's property. Russell v. Roberts, 54 Ohio
App. 441, 7 N.E.2d 811, 813.
EXCEPT IN TIME OF WAR. In statute providing for delivery to civil authorities of persons
accused of crime but • subject to military law, "except in time of war", quoted words merely relieve
military authorities in time of war of duty to deliver accused persons to civil authorities. Articles
of War, art. 74, 10 U.S.C.A. § 1546. People v. Williams, 184 Misc. 510, 55 N.Y.S.2d 181, 182.
EXCEPT RIGHT OF WAY. Recitals "less the
right of way" and "except right of way" in granting clause of deed have well-defined accepted certain and unambiguous meaning by which grantor
conveys entire interest in servient estate and at
same time expressly recognizes and acknowledges
dominant estate. Jennings v. Amerada Petroleum
Corporation, 179 Okl. 561, 66 P.2d 1069, 1071.
EXCEPTING. As used in a deed, the terms "reserving" and "excepting" are used interchangeably, and their technical meaning will give way
to the manifest intent. Porter v. Warner-Caldwell Oil Co., 183 Okl. 1, 80 P.2d 252, 253.
The words "reserving" and "excepting," although
strictly distinguishable, may be used interchangeably or
indiscriminately. Stephan v. Kentucky Valley Distilling
Co., 275 Ky. 705, 122 S.W.2d 493, 496.
EXCEPTIO.
Modern civil law. A plea by which the defendant admits the cause of action, but alleges new
facts which, provided they be true, totally or
665
EXCEPTIO
partially answer the allegations put forward on
the other side; thus distinguished from a mere
traverse of the plaintiff's averments. Tomkins
& J. Mod. Rom. Law, 90. In this use, the term
corresponds to the common-law plea in confession
and avoidance.
Roman law. An exception. In a general sense,
a judicial allegation opposed by a defendant to
the plaintiff's action. Calvin. A stop or stay to
an action opposed by the defendant. Cowell.
Answering to the "defense" or "plea" of the common
law. An allegation and defense of a defendant by which
the plaintiff's claim or complaint is defeated, either according to strict law or upon grounds of equity.
In a stricter sense, the exclusion of an action that lay in
strict law, on grounds of equity, (actionis jure stricto competentis ob cequitatem exclusio.) Heinecc. A kind of limitation of an action, by which it was shown that the action,
though otherwise just, did not lie in the particular case.
Calvin. A species of defense allowed in cases where,
though the action as brought by the plaintiff was in itself
just, yet it was unjust as against the particular party sued.
Inst. 4, 13, pr.
EXCEPTIO DILATORIA. A
dilatory exception;
called also "temporalis," (temporary;) one which
defeated the action for a time, (quce ad tempus
nocet,) and created delay, (et temporis dilationem
tribuit;) such as an agreement not to sue within
a certain time, as five years. Inst. 4, 13, 10. See
Dig. 44, 1, 3.
EXCEPTIO DOLI MALI.
An exception or plea
of fraud. Inst. 4, 13, 1, 9; Bract. fol. 100b.
EXCEPTIO DOMMINII. A
circumstances on which the suit is founded, and
which may therefore be alleged b? any party in
interest, including the heirs and sureties of the
proper or original debtor. Mackeld. Rom. Law,
§ 217.
EXCEPTIO JURISJURANDI.
An exception of
oath; an exception or plea that the matter had
been sworn to. Inst. 4, 13, 4. This kind of exception was allowed where a debtor, at the instance
of his creditor, (creditors deferente,) had sworn
that nothing was due the latter, and had notwithstanding been sued by him.
EXCEPTIO METUS. An
exception or plea of fear
or compulsion. Inst. 4, 13, 1, 9; Bract. fol. 100b.
Answering to the modern plea of duress.
EXCEPTIO NON ADIMPLETI CONTRACTUS.
An exception in an action founded on a contract
involving mutual duties or obligations, to the
effect that the plaintiff is not entitled to sue because he has not performed his own part of the
agreement. Mackeld. Rom. Law, § 394.
EXCEPTIO NON SOLUTZE PECUNI1E. A
plea
that the debt in suit was not discharged by payment (as alleged by the adverse party) notwithstanding an acquittance or receipt given by the
person to whom the payment is stated to have
been made. Mackeld. Rom. Law, § 534.
claim of ownership
set up in an action for the recovery of property
not in the possession of the plaintiff. Mackeld.
Rom. Law, § 299.
EXCEPTIO NULLA EST VERSUS ACTIONEM
QUIE EXCEPTIONEM PERIMIT. There is [can
EXCEPTIO DOTIS CAUTZE NON NUMERATIE.
EXCEPTIO PACTI CONVENTI.
A defense to an action for the restitution of a
dowry that it was never paid, though promised,
available upon the dissolution of the marriage
within a limited time. Mackeld. Rom. Law, § 458.
EXCEPTIO EJUS REI CUJUS PETITUR DISSOLUTIO NULLA EST. A plea of that matter the
dissolution of which is sought [by the action] is
null, [or of no effect.] Jenk. Cent. 37, case 71.
EXCEPTIO FALSI OMNIUM ULTIMA. A
plea
denying a fact is the last of all.
EXCEPTIO FIRMAT REGULAM IN CASIBUS
NON EXCEPTIS. An exception affirms the rule
in cases not excepted. Bacon, Aph. 17.
EXCEPTIO FIRMAT REGULAM IN CONTRARIUM. An exception proves an opposite rule. See
be] no plea against an action which destroys [the
matter of] the plea. Jenk. Cent. 106, case 2.
An exception of
compact; an exception or plea that the plaintiff
had agreed not to sue. Inst. 4, 13, 3.
EXCEPTIO PECUNI1E NON NUMERATE. An
exception or plea of money not paid; a defense
which might be set up by a party who was sued
on a promise to repay money which he had never
received. Inst. 4, 13, 2.
EXCEPTIO PEREMPTORIA.
A peremptory exception; called also "perpetua: (perpetual;) one
which forever destroyed the subject-matter or
ground of the action, (quce semper rem de qua
agitur perimit;) such as the exceptio doli mall,
the exceptio metus, etc. Inst. 4, 13, 9. See Dig. 44,
1, 3.
EXCEPTIO PROBAT REGULAM. The
EXCEPTIO IN FACTUM. An
exception
proves the rule. 11 Coke, 41; 3 Term, 722. Sometimes quoted with the addition "de rebus non exceptis," ("so far as concerns the matters not excepted.")
EXCEPTIO IN PERSONAM.
EXCEPTIO QUIE FIRMAT LEGEM, EXPONIT
LEGEM. An exception which confirms the law
exceptio probat regulam. Bacon, Aph. 17.
exception on the
fact. An exception or plea founded on the peculiar circumstances of the case. Inst. 4, 13, 1.
A plea or defense
of a personal nature, which may be alleged only
by the person himself to whom it is granted by
the law. Mackeld. Rom. Law, § 217.
EXCEPTIO IN REM.
A plea or defense not of
a personal nature, but connected with the legal
explains the law. 2 Bulst. 189.
EXCEPTIO QUOQUE REGULAM DECLARAT.
The exception also declares the rule. Bacon, Aph.
17.
666
EXCEPTION
law made by the plaintiff on grounds of the insufficiency of the bail. 1 Tidd, Pr. 255.
EXCEPTIO REI JUDICATIE. An exception or
plea of matter adjudged; a plea that the subjectmatter of the action had been determined in a
previous action. Inst. 4, 13, 5.
This term is adopted by Bracton, and is constantly used
in modern law to denote a defense founded upon a previous
adjudication of the same matter. Bract. fols. 100b, 177;
2 Kent, Comm. 120. A plea of a former recovery or judgment.
EXCEPTIO REI VENDITIE ET TRADITZE. An
exception or plea of the sale and delivery of the
thing.
This exception presumes that there was a valid sale and
a proper tradition; but though, in consequence of the
rule that no one can transfer to another a greater right
than he himself has, no property was transferred, yet
because of some particular circumstance the real owner is
estopped from contesting it. Mackeld. Rom.Law, § 299.
EXCEPTIO SEMPER ULTIMO PONENDA EST.
An exception should always be put last. 9 Coke,
53.
EXCEPTIO SENATUSCONSULTI MACEDONIAN'. A defense to an action for the recovery
of money loaned, on the ground that the loan was
made to a minor or person under the paternal
power of another; so named from the decree of
the senate which forbade the recovery of such
loans. Mackeld. Rom. Law, § 432.
EXCEPTIO SENATUSCONSULTI VELLEIANI.
A defense to an action on a contract of suretyship, on the ground that the surety was a woman
and therefore incapable of becoming bound for
another; so named from the decree of the senate
forbidding it. Mackeld. Rom. Law, § 455.
EXCEPTIO TEMPORIS. An exception or plea
analogous to that of the statute of limitations in
our law; viz., that the time prescribed by law for
bringing such actions has expired. Mackeld. Rom.
Law, § 213.
EXCEPTION. Act of excepting or excluding from
a number designated or from a description; that
which is excepted or separated from others in a
general rule or description; a person, thing, or
case specified as distinct or not included; an act
of excepting, omitting from mention or leaving
out of consideration; and "except" means not including. In re Kelly's Estate, 153 Misc. 445, 274
N.Y.S. 488.
For "General Exception" and "Special Exception," see those titles.
Admiralty and Equity Practice
An exception is a formal allegation tendered
by a party that some previous pleading or proceeding taken by the adverse party is insufficient.
Peck v. Osteen, 37 Fla. 427, 20 So. 549; Arnold v.
Slaughter, 36 W.Va. 589, 15 S.E. 250.
In admiralty, an "exception" serves the function of a
demurrer in common law or equity pleading. The Nea
Hellis, C.C.A.N.Y., 116 F.2d 803, 805.
Bail
An exception to bail is an objection to the special bail put in by the defendant to an action at
Bequests
Bequests of sums made to same persons by
different paragraphs in same codicil held accumulative, where second paragraph stated that bequest was "exception" to other bequests made;
term as used meaning in addition to person's bequests. In re Kelly's Estate, 153 Misc. 445, 274 N.
Y.S. 488.
Civil Law
An exceptio or plea. Used in this sense in Louisiana. For "Declaratory Exceptions," "Dilatory
Exceptions" and "Peremptory Exceptions," see
those titles.
Constitution
Provision granting Legislature discretionary
power to tax merchants, peddlers, and privileges
is "exception" to constitutional requirement of
equality. A "proviso" and an "exception" are substantially the same thing. Evans v. McCabe, 164
Tenn. 672, 52 S'.W.2d 159, 160.
Contracts
An exception is something taken out of instrument and of kind dealt with in contract. Reliance
Ins. Co. v. Naman, 118 Tex. 21, 6 S.W.2d 743, 745.
Deeds or Conveyances
A clause by which grantor excepts something
out of that which he granted before by the deed.
Winston v. Johnson, 42 Minn. 398, 45 N.W. 958;
Cox v. Colossal Cavern Co., 210 Ky. 612, 276 S.W.
540, 542; Worcester v. Smith, 117 Me. 168, 103 A.
65; De Moss v. Sample, 143 La. 243, 78 So. 482, 485;
Beardslee v. New Berlin Light & Power Co., 207
N.Y. 34, 100 N.E. 434, 437, Ann.Cas.1914B, 1287.
An exception withdraws from operation of deed
part of thing granted which would otherwise pass
to grantee. Powell v. Big Horn Low Line Ditch
Co., 81 Mont. 430, 263 P. 692, 693; Johnson v.
Peck, 90 Utah, 544, 63 P.2d 251, 254; Slone v. Kentucky West Virginia Gas Co., 289 Ky. 623, 159 S.
W.2d 993, 994, 995.
Insurance Contract or Policy
An exclusion of one or more risks. Kirkby v.
Federal Life Ins. Co., C.C.A.Mich., 35 F.2d 126, 128;
Mancini v. Thomas, 113 Vt. 322, 34 A.2d 105, 109.
Provision of life and accident policy specifying
that indemnity should be paid only when death
occurred within thirty days after accident. Mowery v. Washington Nat. Ins. Co., 289 Ill.App. 443,
7 N.E.2d 334, 336. Things taken out. Raymond
v. Great American Indemnity Co., 86 N.H. 93, 163
A. 713, 716.
The object of an exception is to exclude that which otherwise would be included, Estabrook v. Eastern Commercial
Travelers Accident Ass'n, 308 Mass. 439, 32 N.E.2d 250, 252;
to take special cases out of a general class or to guard
against misinterpretation. Landau v. Equitable Life Assur.
Soc. of United States, 1 N.Y.S.2d 891, 895, 166 Misc. 42.
Under liability policy, excluded uses of automobile held
not "exceptions" since they were not in first instance
included within any statement of insurance. Raymond v.
Great American Indemnity Co., 86 N.H. 93, 163 A. 713, 716.
667
EXCEPTION
• an exception is always of a part of the thing granted, and
Practice
of a thing in esse. Co.Litt. 47a; 4 Kent, Comm. 468.
A formal objection to the action of the court,
A "reservation" creates some new right in grantor while
during the trial of a cause, in refusing a request
an "exception" withholds from grant title to some part of
property which would otherwise pass. Clark v. Pauley,
or overruling an objection; implying that the par291 Ky. 637, 165 S.W.2d 161, 162; Federal Land Bank of
ty excepting does not acquiesce in the decision of
New Orleans v. Cooper, 190 Miss. 490, 200 So. 729, 730, 731;
the court, but will seek to procure its reversal,
Goss v. Congdon, 114 Vt. 155, 40 A.2d 429, 430.
and that he means to save the benefit of his reA reservation does not affect the description of the propquest or objection in some future proceeding.
erty conveyed, but retains to the grantor some right upon
the
property, as an easement, whereas an exception operUnited States v. United States Fidelity & Guaranates upon the description and withdraws from the descripty Co., 236 U.S. 512, 35 S.Ct. 298, 303, 59 L.Ed. 696;
tion the excepted property. Moore v. Davis, 273 Ky. 838,
Liquid Carbonic Co. v. Rodman, 52 Okl. 211, 152 P.
117 S.W.2d 1033, 1035.
439; State v. Laundy, 103 Or. 443, 206 P. 290. It
A "reservation" is always of something taken back out of
is also somewhat used to signify other objections
that which is clearly granted, while an "exception" is of
in the course of a suit; for example, exception to
some part of the estate not granted at all. Houghtaling
v. Stoothoff, 170 Misc. 773, 12 N.Y.S.2d 207, 210; Lewis v.
bail is a formal objection that special bail offered
Standard Oil Co. of California, C.C.A.Cal., 88 F.2d 512, 514.
by defendant is insufficient. 1 Tidd, Pr. 255.
A reservation provides for return of rent or service, reAn exception is, an objection formally taken to a decigarded as issuing out of land granted. An exception withsion of the court on a matter of law. State v. Wolzenski,
holds particular portion of land granted. Cook v. Farley,
340 Mo. 1181, 105 S.W.2d 905, 907; an objection on a mat195 Miss. 638, 15 So.2d 352, 355 ; Marias River Syndicate v.
ter of law to a decision made, either before or after judgBig West Oil Co., 98 Mont. 254, 38 P.2d 599, 601.
ment, by a court, tribunal, judge, or other judicial officer
Reservation means something issuing or arising out of
in an action or proceeding. Hearn v. Gunther, 57 Cal.
thing granted while an exception means some part of the
App.2d 82, 134 P.2d 3, 5; an objection, oral or written,
estate not granted, or withdrawn from the effect of the
taken, in course of an action or proceeding, as to bail, to
grant, although the terms are often used indiscriminately
the decision or a ruling of a judge, or to something in his
and given effect according to the obvious intent of the
charge to a jury. In re Pardue's Estate, 57 Cal.App.2d 918,
parties. Vance v. Pritchard, 213 N.C. 552, 197 S.E. 182,
135 P.2d 394, 395.
185.
.An objection to a pleading or any part thereof for want
Reservation must always be in favor of and for benefit of
of substance is a general exception; an objection to the
grantor, whereas exception is mere exclusion from grant,
form in which a cause of action is stated is a special excepof some interest which may be vested in grantor or outtion. Cochran v. People's Nat. Bank, Tex.Civ.App., 271
standing in another; reservation reserves to grantor some
S.W. 433, 434.
new thing, either issuing out of or incident to thing grantObjections to report of master on bill for injunction held
ed, while exception in deed is clause exempting from oper"exceptions". Respro, Inc., v. Worcester Backing Co., 291
ation thereof and retaining in grantor title to some part of
Mass. 467, 197 N.E. 198, 200.
the thing granted or excepting some part of thing granted,
title to which is at the time in another. Klein v. Humble
To authorize review of alleged error in admitting eviOil & Refining Co., Tex.Civ.App., 67 S.W.2d 911, 915.
dence in compensation case, there must be an "exception",
that known to equity practice, and defined as act of appealReservation reserves to grantor some new interest out of
ing from rulings appearing of record, and nothing more.
thing granted, while exception excludes from operation of
Indrisano's Case, 307 Mass. 520, 30 N.E.2d 538, 539.
grant some existing part of estate. Petty v. Griffith, Mo.,
165 S.W.2d 412, 414; U. S. v. 1,010.8 Acres, More or Less,
Situate in Sussex County, Del., D.C.Del., 56 F.Supp. 120,
Proviso and Exception Distinguished
128.
A "proviso" and an "exception" are substantialThe terms "reservation" and "exception" are frequently
ly the same thing. Evans v. McCabe, 164 Tenn.
used as interchangeable for synonymous terms. Nelson v.
Bacon,
113 Vt. 161, 32 A.2d 140, 145; Murphy v. Sunset
672, 52 S.W.2d 159, 160.
Hills Ass'n, 243 Wis. 139, 9 N.W.2d 613, 615; Meaning intended must be determined by reference to subject matter
A proviso differs from an exception. 1 Barn. &
and surrounding circumstances. Federal Land Bank of
Ald. 99. An exception exempts, absolutely, from
New Orleans v. Cooper, 190 Miss. 490, 200 So. 729, 730, 731;
the operation of an engagement or an enactment;
Duus v. Town of Ephrata, 14 Wash.2d 426, 128 P.2d 510,
a proviso, properly speaking, defeats their opera511; Parties' intention, not language used, is dominating
factor in determining whether provision is reservation or
tion, conditionally. An exception takes out of an
exception. Goss v. Congdon, 114 Vt. 155, 40 A.2d 429, 430;
engagement or enactment something which would
Technical meaning will yield to the manifest intent. Jenotherwise be part of the subject-matter of it; a
sen v. Sheker, 231 Iowa 240, 1 NtW.2d 262, 267; Technical
proviso avoids them by way of defeasance or exmisnomer does not operate to defeat attempted reservation or exception. Clark v. Pauley, 291 Ky. 637, 165 S. W.
cuse. 8 Am.Jur. 242; Board of Com'rs of Noble
2d 161, 162; It has been also said that there is a diversity
County v. Whitney, 73 Okl. 160, 175 P. 112, 113;
between an exception and a saving, for an exception exPhiladelphia Life Ins. Co. v. Farnsley's Adm'r,
empts clearly, but a saving goes to the matters touched,
and does not exempt. Plowd. 361. Ogden v. Straus Bldg.
162 Ky. 27, 171 S.W. 1004, 1005; New Jersey State
Corporation, 187 Wis. 232, 202 N.W. 34, 44; Haymaker v.
Board of Optometrists v. S. S. Kresge Co., Sup.,
Windsor Reservoir & Canal Co., 81 Colo. 168, 254 P. 768,
113 N.J.L. 287, 174 A. 353, 357; Sowers Plan Crop
770; Central Bank & Trust Co. v. Wyatt, 189 N.C. 107, 126
Ins. Mut. Co. v. Hobbs, 146 Kan. 166, 68 P.2d 1110,
S.E. 93, 94; Greenspan v. Yaple, 194 N.Y.S. 658, 659, 201
App. Div. 575.
1111.
The ordinary office of an "exception" or "proviso" in a
Statutory Law
policy is to take special cases out of a general class or to
guard against misinterpretation. Landau v. Equitable Life
An exception in a statute is a clause designed
Assur. Soc. of United States, 1 N.Y.S.2d 891, 895, 166
to reserve or exempt some individuals from the
Misc. 42.
general class of persons or things to which the
language of the act in general attaches. People
Reservation and Exception as Synonymous or
v. Bailey, 103 Misc. 366, 171 N.Y.S. 394, 397.
Distinguishable
A reservation is always of a thing not in esse, but newly
An exception differs from an explanation, which, by the
created or reserved out of the land or tenement demised;
use of a videlicet, proviso, etc., is allowed only to explain
668
EXCESS
doubtful clauses precedent, or to separate and distribute
generals into particulars. Cutler v. Tufts, 3 Pick., Mass.,
272.
An "exception" exempts absolutely from the operation of
the statute, while a "proviso" generally defeats operation
of statute conditionally. Oregon Liquor Control Commission v. Coe, 163 Or. 646, 99 P.2d 29, 31; People v.
Thursam, City Ct., 23 N.Y.S.2d 706, 710, 713.
The office of an "exception" in a statute is to except
something from the operative effect of a statute or to
qualify or restrain the generality of the substantive enactment to which it is attached, and it is not necessarily
limited to the section of the statute immediately following
or preceding. Gatliff Coal Co. v. Cox, C.C.A.Ky., 142 F.2d
876, 882.
Two statutes relating to same subject must be read together, and provisions of one having special application to
particular subject will be deemed an "exception" to other
statute general in its terms. Eagleton v. Murphy, 348 Mo.
949, 156 S.W.2d 683, 685, 138 A.L.R. 749.
Zoning
An "exception" in zoning ordinance is one allowable where conditions detailed therein as those
on which exception may be permitted exist. Application of Devereux Foundation, 351 Pa. 478, 41
A.2d 744, 746.
Exceptions may be treated as a legislative process, conditions for which must be found in the zoning ordinance
and may not be varied, and variances may be treated as
judicial function through appeals from administrative orders, whereby literal enforcement of ordinance may be
disregarded. Stone v. Cray, 89 N.H. 483, 200 A. 517, 521.
EXCEPTION EN MASSE. An assignment in defendant's amended motion for new trial that
"court erred in giving Instructions Nos. 1 to 10,
inclusive", is "exception en masse". Tugg v. State,
206 Ark. 161, 174 S.W.2d 374, 376.
EXCEPTION OF LACK OF CAPACITY TO
STAND IN JUDGMENT. Challenges authority of
plaintiff to institute and prosecute suit regardless
of whether plaintiff owns or has an interest in
the claim. It is usually resorted to where plaintiff is alleged to be under some disability or where
he sues through a representative who, it is alleged,
has no authority. Riche v. Ascension Parish
School Board, La.App., 200 So. 681, 685.
EXCEPTION OF MISJOINDER seeks to restrain
plaintiff's pursuit of the cause when there is present another party whose liabilities or rights are
not connected with the exceptor. Henrichs v. New
Orleans Public Service, La.App., 179 So. 610.
EXCEPTION OF NO CAUSE OF ACTION addresses itself to sufficiency in law of the petition
and exhibits attached. Bartholomew v. Impastato,
La.App., 12 So.2d 700, 702.
EXCEPTION OF NO RIGHT OF ACTION challenges plaintiff's interest or right to assert cause
of action. McCain v. Le Blanc Bros., La.App., 10
So.2d 116, 118.
EXCEPTION OF WANT OF INTEREST or of "no
right of action" is afforded as means of challenging preliminarily either interest or right of plaintiff to assert cause of action and is not limited to
want of capacity in plaintiff as such to bring suit.
McCain v. Le Blanc Bros., La.App., 10 So.2d 116,
118.
EXCEPTIONAL CIRCUMSTANCES. -Peculiar urgency, existed where death sentence was imposed,
or defendant had not been given a reasonable opportunity to prepare for trial, or the commonwealth conceded belatedly, though not too late,
that its material evidence is perjured. Sharpe v.
Commonwealth of Kentucky, C.C.A.Ky., 135 F.2d
974, 977.
EXCEPTIS EXCIPIENDIS. Lat. With all neces.
sary exceptions.
EXCEPTOR. In old English law. A party who
entered an exception or plea.
EXCERPTA, or EXCERPTS. Extracts.
EXCESS. When a defendant pleaded to an action
of assault that the plaintiff trespassed on his land,
and he would not depart when ordered, whereupon
he, molliter manus imposuit, gently laid hands on
him, the replication of excess was to the effect
that the defendant used more force than necessary. Wharton.
Degree or amount by which one thing or number exceeds another, and the remainder or the difference between
two numbers is the excess of one over the other. In re
Bunce's Estate, 100 Misc. 385, 165 N.Y.S. 426.
Statute providing that, if capital used or invested in
business of corporations includes borrowed capital in "excess" of capital stock, surplus and undivided profits, such
excess of borrowed capital shall be added to capital stock,
surplus and undivided profits as basis for computing franchise tax, means that, if corporation uses any borrowed or
additional capital, such borrowed or additional capital
must be added to the other capital in order to form basis
for computing the tax. State v. Union Bldg. Corporation,
185 La. 598, 170 So. 7, 12.
EXCESS FEES of tax collector consist of sum remaining in collector's hands after deducting from
total of all lawful fees collected, his maximum
annual fees, his deputy hire, his official expenses
and one-fourth of remainder until such one-fourth
amounts to specified sum. American Indemnity
Co. v. Red River Nat. Bank in Clarksville, Tex.
Civ.App., 132 S.W.2d 473, 480.
EXCESS INSURANCE. No recovery for loss of
cotton which was insured under another policy
could be had except that recoverable as "excess
insurance," although the other policy also provided for its avoidance by other insurance, for, as
to such other policy, the litigated policy was not
"other" but merely "excess insurance." St. Paul.
Fire & Marine Ins. Co. v. Garza County Warehouse & Marketing Ass'n, C.C.A.Tex., 93 F.2d 590,
592; Travelers Indemnity Co. v. State Automobile
Ins. Co., 67 Ohio App. 457, 37 N.E.2d 198, 200.
Where fire and theft policy issued to conditional seller
of truck contained indorsement against accidental collision
occurring after insured had repossessed truck, and policy
provided that such insurance was excess insurance where
any specific insurance existed for benefit of insured, when
seller later repossessed truck, insurance taken by seller
became "excess insurance." Fageol Truck & Coach Co. v.
Pacific Indemnity Co., 18 Ca1.2d 731, 117 P.2d 661, 669.
Where materials which belonged to owners who carried
fire insurance covering merchandise while in possession of
contractors, were sent to contractors to be made into finished garments, fire policies of contractors covering merchandise held in trust but excluding property otherwise
specifically insured, provided only "excess insurance" in
accordance with terms thereof, as to goods in possession
669
EXCESS
of contractors who had insured themselves as bailees. Gordon v. Franklin Fire Ins. Co. of Philadelphia, 262 App.Div.
328, 28 N.Y.S.2d 480, 482.
EXCESS OF JURISDICTION. A case in which
court has initially proceeded properly within its
jurisdiction but steps out of jurisdiction in making of some order or in the doing of some judicial act. Olson v. District Court of Salt Lake
County, 93 Utah, 145, 71 P.2d 529, 534, 112 A.L.R.
438. Act within judge's general power is unauthorized in particular case. Beckwith v. McAlister, 165 S.C. 1, 162 S.E. 623, 628; Carter v. Mitchell, 225 Ala. 287, 142 So. 514, 517; In re Knox'
Estate, 52 Cal.App.2d 338, 126 P.2d 108, 112. Acts
which exceed defined power of court in any instance. Abelleira v. District Court of Appeal,
Third Dist., 17 Ca1.2d 280, 109 P.2d 942, 948, 132
A.L.R. 715.
A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has
the effect of depriving one of a constitutional right, is an
"excess of jurisdiction." Wuest v. Wuest, 53 Cal.App.2d
339, 127 P.2d 934, 937.
EXCESS OR SURPLUS WATER. Mean simply
water which is flowing in stream in addition to
what may be termed adjudicated waters. Quigley
v. McIntosh, 88 Mont. 103, 290 P. 266, 268; Any
water not needed for reasonable beneficial uses of
those having prior rights is "excess or surplus
water". City Of. Pasadena v. City of Alhambra,
Cal., 207 P.2d 17;28.
EXCESSES. Spouse's gambling habits or extravagances when carried , to excess, constitute "excesses" authorizing separation from bed and
board. Moore v. Moore, 192 La. 289, 187 So. 670,
,672.
EXCESSIVE. Greater than what is usual or proper; overmuch; a general term for what goes beyond just measure or amount. Austin St. Ry. Co.
v. Oldham, Tex.Civ.App., 109 S.W.2d 235, 237.
Tending to or marked by excess, which is the
quality or state of exceeding the proper or reasonable limit or measure. Railway Co. v. Johnston, 106 Ga. 130, 32 S.E. 78; Morrow v. Missouri
Gas & Electric Service Co., 315 Mo. 367, 286 S.W.
106, 111.
EXCESSIVE ASSESSMENT. A tax assessment
grossly disproportionate as compared with other
assessments. Southern California Telephone Co.
v. Los Angeles County, 45 Cal.App.2d 111, 113 P.
2d 773, 776.
EXCESSIVE BAIL. Bail in a sum more than will
be reasonably sufficient to prevent evasion of the
law by flight or concealment; bail which is per se
unreasonably great and clearly disproportionate
to the offense involved, or shown to be so by the
special circumstances of the particular case. In
re Losasso, 15 Colo. 163, 24 P. 1080, 10 L.R.A. 847;
Ex parte Ryan, 44 Cal. 558.
The denial of bail is not necessarily "excessive bail",
although such denial may be in a particular case the equivalent of excessive bail. People ex rel. Shapiro v. Keeper 'of
City Prison, Tombs, New York County, 265 App.Div. 474,
39 N :Y.S.2d 526, 531.
EXCESSIVE DAMAGES. See Damages.
EXCESSIVE DRUNKENNESS. Drunkenness is
excessive where a party is so far deprived of his
reason and understanding as to render him incapable of understanding character and consequences of his act. Taylor v. Koenigstein, 128 Neb. 809,
260 N.W. 544.
EXCESSIVE FINE OR PENALTY. Any fine or
penalty which seriously impairs the capacity of
gaining a business livelihood. C. F. Smith Co. v.
Fitzgerald, 270 Mich. 659, 259 N.W. 352.
EXCESSIVE OR INTEMPERATE USE OF INTOXICANTS. In benefit certificate. Habitual indulgence in intoxicating liquors to such extent as
to impair health or otherwise render insurance
risk more hazardous. Wising v. Brotherhood of
American Yeomen, ,132 Minn. 303, 156 N.W. 247,
248, Ann.Cas.1918A, 621.
EXCESSIVE OXIDATION. As used in product
patent for improvement in bleached and dyed furs
and the like, relate to what would occur if it was
attempted to effect oxidation, bleaching of a dark
skin with an ordinary bleach, such as strong hydrogen peroxide, without a protecting agent.
Steinfur Patents Corporation v. J. Meyerson, Inc.,
D.C.N.Y., 56 F.2d 372, 382.
EXCESSIVE SENTENCE. No sentence is excessive which is within limits fixed by law. Bryant
v. State, 39 Ga.App. 26, 145 S.E. 911; State v.
Brackett, 218 N.C. 369, 11 S.E.2d 146, 149.
EXCESSIVE SPEED. Automobile's speed is "excessive" whenever it places car beyond driver's
control. Esponette v. Wiseman, 130 Me. 297, 155
A. 650, 653.
EXCESSIVE TAX. One that exceeds what the
tax would be if correctly calculated at the legal
rate on the valuation as finally fixed by the county authorities. Pocomoke Guano Co. v. City of
New Bern, 172 N.C. 258, 90 S.E. 202, 203.
EXCESSIVE VERDICT. A verdict which is result of passion or prejudice. Babb v. Murray, 26
Cal.App.2d 153, 79 P.2d 159, 160.
The test of whether a verdict is `;excessive" is whether
the amount thereof is such as to shock the conscience of the
court. Scheidegger v. Thompson, Mo.App., 174 S.W.2d
216, 222.
EXCESSIVELY. To excess. Penn Mut. Life Ins.
Co. v. Nunnery, 176 Miss. 197, 167 So. 416, 419.
EXCESSIVELY INTOXICATED. Where one is so
intoxicated as to be so far deprived of his reason
and understanding as to render him incapable of
knowing the character and consequences of his
act. Keedick v. Brogan, 116 Neb. 339, 217 N.W.
583, 585.
EXCESSIVUM IN JURE REPROBATUR. EXCESSUS IN RE QUALIBET JURE REPROBATUR
COMMUNI. Co. Litt. 44. Excess in law is reprehended. Excess in anything is reprehended at
common law.
670
EXCHANGE
EXCHANGE. To barter; to swap. Dairymen's
League Co-op. Ass'n v. Metropolitan Casualty Ins.
Co. of New York, Sup., 8 N.Y.S.2d 403, 412. To
part with, give or transfer for an equivalent.
Kessler v. United States, C.C.A.Pa., 124 F.2d 152,
154; Dairymen's League Co-op. Ass'n v. Metropolitan Casualty Ins. Co. of New York, Sup., 8 N.Y.S.
2d 403, 412.
Act of giving or taking one thing for another. United
States v. Paine, D.C.Mass., 31 F.Supp. 898, 900; Kessler
v. United States, C.C.A.Pa., 124 F.2d 152, 154; contract by
terms of which specific property is given in consideration
of the receipt of property other than money. Capps v.
Mines Service, 175 Or. 248, 152 P.2d 414, 416; Mutual grant
of equal interests, the one in consideration of the other,
Hale v. Helvering, 66 App.D.C. 242, 85 F.2d 819, 821, 822;
mutual transfer of property other than for money although
one of parties may pay a sum of money in addition to
property, Law v. McLaughlin, D.C.Cal., 2 F.Supp. 601, 603;
transaction in which one piece of property, usually something other than money or its equivalent, is given in return for another piece of property, Hadley Falls Trust Co.
v. United States, C.C.A.Mass., 110 F.2d 887, 891; transfer
of property for other property, Helvering v. Nebraska
Bridge Supply & Lumber Co., C.C.A.8, 115 F.2d 288, 290;
transfer of property for property or some value other than
money, Burger-Phillips Co. v. Commissioner of Internal
Revenue, C.C.A.Ala., 126 F.2d 934, 936; transfers of enduring interests and not such as must immediately be reconveyed in fulfillment of preconceived plan, Morgan v.
Helvering, C.C.A.2, 117 F.2d 334, 336.
An exchange is two sales. Robbins v. Pacific Eastern
Corporation, 8 Ca1.2d 241, 65 P.2d 42, 56.
The criterion in determining whether a transaction is
a sale or an exchange is whether there is a determination
of value of things exchanged, and if no price is set for
either property it is an "exchange". Gruver v. Commissioner of Internal Revenue, C.C.A.4, 142 F.2d 363, 366.
The mutual transfers must be in kind, and any transaction into which money enters, either as the consideration
or as a basis of measure is excluded. Hoovel v. State, 125
Tex.Cr.R. 545, 69 S.W.2d 104, 108; Trenton Cotton Oil
Co. v. C. I. R., C.C.A.6, 147 F.2d 33, 36.
Capital Assets
Reciprocal transfers. Helvering v. William
Flaccus Oak Leather Co., 313 U.S. 247, 61 S.Ct. 878,
880, 85 L.Ed. 1310; Harwick v. Commissioner of
Internal Revenue, C.C.A.8, 133 F.2d 732, 737.
Conveyance of mortgaged realty by mortgagor in consideration of payment of past-due taxes thereon, Philips
v. Commissioner of Internal Revenue, C.C.A.3, 112 F.2d 721,
722.
Mortgagor's transfers of equity of redemption in property which constituted a capital asset of mortgagor to
mortgagee in return for release of liability on accompanying bond given to evidence or further secure the mortgage
debt. Stamler v. C. I. R., C.C.A.3, 145 F.2d 37, 39.
Commercial Law
A negotiation by which one person transfers to
another funds which he has in a certain place,
either at a price agreed upon or which is fixed by
commercial usage. Nicely v. Bank, 15 Ind.App.
563, 44 N.E. 572, 57 Am.St.Rep. 245; Iowa State
Sa y . Bank of Fairfield v. City Nat. Bank, 183
Iowa, 1347, 168 N.W. 148, 149, L.R.A.1918F, 169.
The process of settling accounts or debts between parties
residing at a distance from each other, without the intervention of money, by exchanging orders or drafts, called
bills of exchange; the payment of debts in different places
by an exchange or transfer of credits. Webster, Dict.
The profit which arises from a maritime loan, when such
profit is a percentage on the money lent, considering it in
the light of money lent in one place to be returned in an-
other, with a difference in amount in the sum borrowed
and that paid, arising from , the difference of time and
place. The term is commonly used in this sense by French
writers. Hall, Emerig, Mar. Loans, 56n.
A public place where merchants, brokers, factors, etc.,
meet to transact their business.
Conveyancing
A mutual grant of equal interests, (in lands or
tenements,) the one in consideration of the other.
2 Bl.Comm. 323; Windsor v. Collinson, 32 Or. 297,
52 P. 26; Herring Motor Co. v. 2Etna Trust & Savings Co., 87 Ind.App. 83, 154 N.E. 29, 31; Baltimore & 0. R. Co. v. Western Union Telegraph Co.,
D.C.N.Y., 241 F. 162, 169; Finke v. Boyer, 331 Mo.
1242, 56 S.W.2d 372.
Nontaxable Exchange
Elements are that property be transferred to a
corporation solely in exchange for stock or securities in corporation and that transferors immediately after exchange be in control of corporation, through ownership of 80 per cent. of all voting stock and at least 80 per cent. of all other
classes of stock of corporation. Commissioner of
Internal Revenue v. Cement Investors, C.C.A.10,
122 F.2d 380, 383.
Personal Property Law
Exchange of goods is a commutation, transmutation, or transfer of goods for other goods, as
distinguished from sale, which is a transfer of
goods for money. 2 Bl.Comm. 446; 2 Steph.
Comm. 120; Elwell v. Chamberlin, 31 N.Y. 624;
Cooper v. State, 37 Ark. 418; Preston v. Keene, 14
Pet. 137, 10 L.Ed. 387.
Exchange is a contract by which the parties
mutually give, or agree to give, one thing for another, neither thing, or both things, being money
only.
The distinction between a sale and exchange of property
is rather one of shadow than of substance. In both cases
the title to property is absolutely transferred; and the
same rules of law are applicable to the transaction, whether the consideration of the contract is money or by way of
barter. It can make no essential difference in the rights
and obligations of parties that goods and merchandise are
transferred and paid for by other goods and merchandise
instead of by money, which is but the representative of
value or property. Com. v. Clark, 14 Gray, Mass., 367.
Stock and Securities
To exchange one security for a different security of some kind or for other property or rights.
Mertz v. H. D. Hudson Mfg. Co., 194 Minn. 636,
261 N.W. 472.
Plan whereby preferred stock was issued in exchange
for half of common stock held by voting trustees and other half was split up on basis of two for one constituted a
genuine "exchange" of common stock for preferred stock
in pursuance of a plan of "recapitalization". Bass v. Commissioner of Internal Revenue, C.C.A.1, 129 F.2d 300, 307.
Where holder of nearly all of . a corporation's stock delivered securities to corporation, gave corporation his
check in payment of preferred stock,_and-received from
corporation its check in payment of his securities, and
checks, which were simultaneously deposited, cancelled
each other almost entirely, transaction was exchange.
Louis W. Gunby, Inc., v. Helvering, 74 App.D.C. 185, 122
F.2d 203, 206.
671
EXCHANGE
For "Arbitration of Exchange," "Bill of Exchange," "Dry Exchange," "First of Exchange,"
and "Owelty of Exchange," see those titles.
EXCHANGE BROKER. One who negotiates bills
of exchange drawn on foreign countries or on
other places in the same country; one who makes
and concludes bargains for others in matters of
money or merchandise. Little Rock v. Barton, 33
Ark. 444; Portland v. O'Neill, 1 Or. 219.
EXCHANGE OF LIVINGS. In ecclesiastical law.
This is effected by resigning them into the bishop's
hands, and each party being inducted into the
other's benefice. If either die before both are inducted, the exchange is void.
EXCHANGED means a complete divestment of
property. Lord v. Smith, 293 Mass. 555, 200 N.E.
547, 550.
EXCHEQUER. That department of the English
government which has charge of the collection of
the national revenue; the treasury department.
It is said to have been so named from the chequered
cloth, resembling a chess-board, which anciently covered
the table there, and on which, when certain of the king's
accounts were made up, the sums were marked and scored
with counters. 3 Bl.Comm. 44.
For "Court of Exchequer" and "Court of Exchequer Chamber," see those titles.
EXCHEQUER BILLS. Bills of credit issued in
England by authority of parliament. Brande.
Instruments issued at the exchequer, under the authority,
for the most part,- of acts of parliament passed for the
purpose, and containing an engagement on the part of the
government for repayment of the principal sums advanced
with interest. 2 Steph.Comm. 586. See Briscoe v. Bank of
Kentucky, 11 Pet. 328, 9 L.Ed. 709.
EXCHEQUER DIVISION. A division of the English high court of justice, to which the special
business of the court of exchequer was specially
assigned by section 34 of the judicature act of
1873. Merged in the queen's bench division from
and after 1881, by order in council under section
31 of that act. Wharton.
EXCISE. An inland imposition, paid sometimes
upon the consumption of the commodity, and frequently upon the retail sale. 1 Bl.Comm. 318;
Patton v. Brady, 184 U.S. 608, 22 S.Ct. 493, 46 L.
Ed. 713; Portland Bank v. Apthorp, 12 Mass. 256.
An excise has been defined as meaning tribute, custom,
tax, tollage, or assessment, a fixed absolute and direct
charge laid on merchandise, products, or commodities
without any regard to amount of property belonging to
those on whom it may fall, or to any supposed relation between money expended for a public object and a special
benefit occasioned to those by whom the charge is to be
paid. In re Opinion of the Justices, 282 Mass. 619, 186 N.
E. 490, 491.
An excise is an impost for a license to pursue certain
callings or to deal in special commodities or to exercise
particular franchises. East Ohio Gas Co. v. Tax Commission of Ohio, D.C.Ohio, 43 F.2d 170, 172; any tax not
falling within classification of poll or property tax, Diefendorf v. Gallet, 51 Idaho 619, 10 P.2d 307, 312; any tax
which is not directly on property or the rents or incomes
from real estate, Anne Arundel County Com'rs v. English,
182 Md. 514, 35 A.2d 135, 141; duties laid on manufacture,
sale, or consumption of commodities, or upon certain callings or occupations, In re City of Enid, 195 Okl. 365, 158
P.2d 348, 350, 159 A.L.R. 358; every form of charge im-
posed by public authority on performance of act, enjoyment of privilege, or engagement in occupation, Idaho
Gold Dredging Co. v. Balderston, 258 Idaho 692, 78 P.2d
105, 112; every form of taxation which is not laid directly
on persons or property. Gila Meat Co. v. State, 35 Ariz.
194, 276 P. 1, 2; Lutz v. Arnold, 208 Ind. 480, 193 N.E. 840;
public charges on subjects other than manufacture and sale
of commodities, such as licenses to pursue particular callings, franchises of corporations and particularly the franchise of corporate existence, and inheritance or succession
of estates. Pollock v. Farmers' L. & T. Co., 158 U.S. 601,
15 S.Ct. 912, 39 L.Ed. 1108; Albert Pick & Co. v. Jordan,
169 Cal. 1, 145 P. 506, 513, Ann.Cas.1916C, 1237; Des
Moines Union Ry. Co. v. Chicago Great Western Ry. Co.,
188 Iowa, 1019, 177 N.W. 90, 9 A.L.R. 1557; Northern Cent.
Ry. Co. v. Fidelity Trust Co., 152 Md. 94, 136 A, 66, 68, 60
A.L.R. 558; Hattiesburg Grocery Co. v. Robertson, 126
Miss. 34, 88 So. 4, 5, 25 A.L.R. 748; something cut off from
price paid on sale of goods as contribution to government,
City of Louisville v. Churchill Downs, 267 Ky. 339, 102 S.
W.2d 10, 13; tax imposed on performance of act, engagement in occupation, or, enjoyment of privilege, State v.
Fields, Ohio App., 35 N,E.2d 744, 747; tax laid on manufacture, sale, or consumption of commodities or upon licenses to pursue certain occupations or upon corporate
privileges. Alexander Theatre Ticket Office v. U. S., C.C.A.
N.Y., 23 F.2d 44, 46; City of De Land v. Florida Public
Service Co., .119 Fla. 804, 161 So. 735, 738.
An "excise tax" is often used as synonymous with
"privilege" or "license tax". Shannon v. Streckfus S'teanters, 279 Ky. 649, 131 S.W.2d 833, 838.
The terms excise tax and privilege tax are synonymous.
American Airways v. Wallace, D.C.Tenn., 57 F.2d 877, 880.
English Law
The name given to the duties or taxes laid on
certain articles produced and consumed at home,
among which spirits have always been the most
important; but, exclusive of these, the duties on
the licenses of auctioneers, brewers, etc., and on
the licenses- to keep dogs, kill game, etc., are included in the excise duties. Wharton.
Tax and Excise Distinguished
A tax
imposed directly by Legislature without
assessment and measured by amount of business
done, income previously received, or by extent to
which privilege may have been enjoyed or exercised by the taxpayer, irrespective of nature or
value of his assets or his investments in business,
is excise tax while assessed tax on valuation of
property is property tax. City of De Land v. Florida Public Service Co., 119 Fla. 804, 161 So. 735,
738.
A "property tax" is a visitational tax and is the taking
of part of taxpayer's wealth, represented by property he
owns for needs of government, and is not an "excise tax"
for privilege of owning property for period of fiscal
year. Bemis Hardwood Lumber Co. v. Graham County, N.
C., 214 N.C. 167, 198 S.E. 843, 845.
A tax directly on property is a property tax; but a tax
is an excise tax where it is not a tax on property as such,
but on certain kinds of property, having reference to their
origin and their intended use. State ex rel. Porterie v. H.
L. Hunt, Inc., 182 La. 1073, 162 So. 777, 103 A.L.R. 9.
An excise tax is an inland impost on articles of manufacture or sale, and also upon licenses to pursue certain
trades, or to deal in certain commodities, and property
tax is a tax which is not a capitation tax or a direct tax
on land or personalty. Flynn, Welch & Yates v. State
Tax Commission, 38 N.M. 131, 28 P.2d 889, 891.
As usually used, "franchise tax" is tax on intangible
values inhering to business and added value given to
tangible property, being "ad valorem" as distinguished
from "excise" or "privilege" tax. State Tax Commission
v. Petroleum Exploration, 253 Ky. 119, 68 S.W.2d 777.
672
EXCLUSIVE
If a mortgage registration tax is in effect upon the instrument itself, the tax is a "property tax", but if the tax
is imposed solely upon the privilege of registration, and
validity or use of the instrument is not affected by failure
to pay the tax, the tax is an "excise tax". Community
Public Service Co. v. James, Tex.Civ.App., 167 S.W.2d 588,
595.
Income tax is a "property tax" and not an "excise tax."
Jensen v. Henneford, 185 Wash. 209, 53 P.2d 607, 610.
The words "tax" and "excise," although often used as
synonymous, are to be considered as having entirely dist
tinct and separate significations, under Const.Mass. c. 1, §
1, art. 4. The former is a charge apportioned either among
the whole people of the state or those residing within certain districts, municipalities, or sections. It is required to
be imposed, so that, if levied for the public charges of
government, it shall be shared according to the estate, real
and personal, which each person may possess; or, if raised
to defray the cost of some local improvement of a public
nature, it shall be borne by those who will receive some
special and peculiar benefit or advantage which an expenditure of money for a public object may cause to those
on whom the tax is assessed. An excise, on the other hand,
is of a different character. It is based on no rule of auportionment or equality whatever. It is a fixed, absolute,
and direct charge laid on merchandise, products, or commodities, without any regard to the amount of property
belonging to those on whom it may fall, or to any supposed relation between money expended for a public object
and a special benefit occasioned to those by whom the
charge is to be paid. Oliver v. Washington Mills, 11 Allen,
Mass., 268.
EXCISE LAW. A law imposing excise duties on
specified commodities, and providing for the collection of revenue therefrom. In a more restricted and more popular sense, a law regulating,
restricting, or taxing the manufacture or sale of
intoxicating liquors.
A statute requiring payment of license fee for operating
motor vehicle on state highway for hire is an "excise tax
measure" rather than a "police measure." Comp. Laws
Nev. § 4437. Ziemer v. Babcock & Wilcox Co., D.C.Nev.,
22 F.Supp. 384, 385.
EXCISE LIEU PROPERTY TAX. Tax on gross
premiums received and collected by designated
classes of insurance companies held "excise lieu
property tax." United Pacific Ins. Co. v. Bakes,
57 Idaho 537, 67 P.2d 1024, 1029.
EXCLUSA. In old English law. A sluice to carry
off water; the payment to the lord for the benefit
of such a sluice. Cowell.
EXCLUSION. Denial of entry. Ex parte Domingo Corypus, D.C.Wash., 6 F.2d 336.
"Exclusions" are things barred and not admitted. Raymond v. Great American Indemnity Co., 86 N.H. 93, 163
A. 713, 716.
EXCLUSION, RULE OF. A witness, whether a
party to the cause or not, may not testify as to
his uncommunicated intent, purpose or motive.
Occidental Life Ins. Co. of Cal. v. Nichols, 97 So.2d
879, 885, 266 Ala. 521. This rule applies even
though witness' intent or state of mind is material to the issue. McCain v. City of Montgomery,
92 So.2d 678, 681, 38 Ala.App. 568.
EXCLUSIVE. Appertaining to the subject alone,
not including, admitting, or pertaining to any
others. Fellows v. Seymour, 171 Misc. 833, 13 N.Y.
S.2d 803, 805. Sole. State v. Bridges, 246 Ala. 486,
21 So.2d 316, 319. Shutting out; debarring from
interference or participation; vested in one person
alone.
Black's Law Dictionary Revised 4th Ed.--43
The term "exclusive" as used to define quantity of control of offending agency for res ipsa loquitur to apply
means that control must be exclusive as against all who
do not have a concurrent joint control. Frenkil v. Johnson National Retailers Mut. Ins. Co., 175 Md. 592, 3 A.2d
479, 485.
EXCLUSIVE AGENCY. A contract to give an
"exclusive agency" to deal with property is ordinarily interpreted as not precluding competition
by the principal generally, but only as precluding
him from appointing another agent to accomplish
the result. Navy Gas & Supply Co. v. Schoech,
105 Colo. 374, 98 P.2d 860, 861, 863, 126 A.L.R. 1225.
The grant of an "exclusive agency to sell," that is. the
exclusive right to sell the products of a wholesaler in a
specified territory, ordinarily is interpreted as precluding
competition in any form within designated area. Navy Gas
& Supply Co. v. Schoech, 105 Colo. 374, 98 P.2d 860, 861, 126
A. L. R. 1225.
Relationship such as that created by contract between
manufacturer and sole distributors within specified territory for outright sales to distributors who established retail prices. Stratton & Terstegge Co. v. Stiglitz Furnace
Co., 258 Ky. 678, 81 S.W.2d 1, 3.
EXCLUSIVE AGENCY CONTRACT means that
owner will not sell property through any other
agency. Torrey & Dean v. Coyle, 138 Or. 509, 7
P.2d 561, 562,
EXCLUSIVE CONTROL. The "exclusive control"
of thing causing accident, applies to right of control of instrumentality causing injury. Gerhart
v. Southern California Gas Co., 56 Cal.App.2d 425,
132 P.2d 874, 877.
As used in statute giving city exclusive control of school
system, means control to exclusion of control exercised by
county or state over other types of independent school districts authorized by school laws. Temple Independent
School Dist. v. Proctor, Tex.Civ.App., 97 S.W.2d 1047, 1054.
EXCLUSIVE JURISDICTION. These words preclude idea of co-existence, and mean possessed to
exclusion of others. Dunn Const. Co. v. Craig, 191
Miss. 682, 2 So.2d 166, 171.
The words "exclusive jurisdiction" when used in statutes
with respect to inferior criminal courts were only intended
to define jurisdiction of inferior criminal courts established
thereby as between themselves. People ex rel. Kawiecki
v. Carhart, 170 Misc. 894, 13 N.Y.S.2d 293, 294.
Under statute giving United States District Courts "exclusive jurisdiction" of violations of Securities Exchange
Act, all criminal or civil proceedings for violations of the
act must be brought in such courts. Wright v. Securities
and Exchange Commission, C.C.A.2, 112 F.2d 89, 95.
EXCLUSIVE LICENSE is permission to do thing
and contract not to give leave to any one else to
do same thing. Overman Cushion Tire Co. v.
Goodyear Tire & Rubber Co., C.C.A.N.Y., 59 F.2d
998, 999.
A license which binds licensor not to enlarge thereafter
the scope of other licenses already granted, or increase the
number of licenses, is an "exclusive license", Mechanical
Ice Tray Corporation v. General Motors Corporation, C.C.
A.N.Y., 144 F.2d 720, 725.
EXCLUSIVE LICENSEE. One granted exclusive
right and license to use, manufacture, and sell
673
EXCLUSIVE
designate held exclusive power. In re Skidmore's Estate,
148 Misc. 569, 266 N.Y.S. 312.
Under will giving testator's daughters power to dispose
of principal of trusts created in their favor, provided it be
bequeathed to testator's descendants, where testator's general intent was that property should be kept in the family,
but that his children should share equally, power of appointment was exclusive. Moore v. Emery, 137 Me. 259, 18
A.2d 781, 788, 792.
patented article. Deitel v. Chisholm, C.C.A.N.Y.,
42 F.2d 172, 173. One having exclusive right to
use patented method and apparatus in designated
territory. Paul E. Hawkinson Co. v. Cornell, C.
C.A.Va., 112 F.2d 396, 398.
EXCLUSIVE MOVING PICTURE RIGHTS. Granted by author in book held to include technical im
provements in motion pictures developed during
license. L. C. Page & Co. v. Fox Film Corporation, C.C.A.N.Y., 83 F.2d 196, 199.
EXCLUSIVE PRIVILEGE or FRANCHISE. A
statute does not grant an "exclusive" privilege or
franchise, unless it shuts out or excludes others
from enjoying a similar privilege or franchise.
Sunnyside Land & Investment Co. v. Bernier, 119
Wash. 386, 205 P. 1041, 1042, 20 A.L.R. 1261; Toten.
v. Stuart, 143 Va. 201,129 S.E. 217, 218.
EXCLUSIVE OF ANY OUT BUILDINGS as used
in covenant that within restricted area, no residence should be erected, "actual bona fide cost" of
which "exclusive of any outbuildings" should be
less than $10,000, meant that no buildings other
than the residence could or should be considered.
Dillingham v. Kahn, 188 Ark. 759, 67 S.W.2d 735.
EXCLUSIVE OF INTEREST AND COSTS as used
in statute defining court's pecuniary jurisdiction,
refers to interest accrued before filing of complaint, not that accruing after suit was brought.
Athan v. Hartford Fire Ins. Co., C.C.A.N.Y., 73 F.
2d 66, 67.
EXCLUSIVE ORIGINAL JURISDICTION IN ALL
CASES. Constitutional provision, giving circuit
court "exclusive original jurisdiction in all cases
in equity", established in circuit court exclusive
jurisdiction in all cases in equity involving matters
which were of exclusive equity jurisdiction under
the common law. In re Niernsee's Estate, 147 Fla.
388, 2 So.2d 737, 739.
EXCLUSIVE OWNERSHIP. Ownership free from
any kind of legal or equitable interest in any one
else. U. S. Casualty Co. v. Timmerman, 118 N.J.
Eq. 563, 180 A. 629.
EXCLUSIVE POSSESSION. Possession may be
"exclusive" so as to entitle possessor to title by adverse possession, notwithstanding that the land
is subject to exercise of easement by private party. Young v. City of Lubbock, Tex.Civ.App., 130
S.W.2d 418, 420.
Defendant, if in actual adverse open and notorious possession of land, had exclusive possession, visible to another
accepting mortgage on premises sought to be foreclosed.
Whittaker v. Farmers' Nat. Bank of Somerset, 237 Ky.
596, 36 S.W.2d 18, 19.
Exclusive possession by adverse possessor means that adverse possessor must show an exclusive dominion over the
land and an appropriation of it to his own use and benefit.
Vernon's Ann.Civ.St. art. 5510. W. T. Carter & Bro. v.
Holmes, 131 Tex. 365, 113 S.W.2d 1225, 1226.
Under lease providing that lessor should give exclusive
possession which was defined to include consent agreements
signed by lienholder satisfactory to lessee, lessor whose
mortgage was in default did not comply with lease requirement by tendering a consent agreement from a company
which agreed to refinance the mortgage. Fox Realty Co. v.
Montgomery Ward & Co., C.C.A.Ind., 124 F.2d 710, 712,
713.
EXCLUSIVE POWER. If special power permits
donee to bar one or more members of class from
receiving portion of property it is "exclusive".
Moore v. Emery, 137 Me. 259, 18 A.2d 781, 788, 792.
Power upon specified condition to appoint by will such
full-blood relations of donor to take estate as donee might
EXCLUSIVE REMEDY. Where a statute creates
a new right or imposes a new duty or liability,
unknown to the common law, and gives a remedy
for its enforcement, the remedy prescribed is "exclusive". Kosicki v. S. A. Healy Co., 312 Ill.App.
307, 38 N.E.2d 525, 528; Kosicki v. S. A. Healy Co.,
380 Ill. 298, 44 N.E.2d 27, 29.
Statute declaring right to compensation under Compensation Law exclusive remedy of employee injured by fellow
employee means that injured employee suing fellow employee without having elected to take compensation under
such law loses remedy against employer. Hall v. Hill, 158
Misc. 341, 285 N.Y.S. 815.
Statute providing method of recovery does not furnish
exclusive remedy unless its terms indicate an intent to
make statutory remedy exclusive. Kosicki v. S. A. Healy
Co., 312 III.App. 307, 38 N.E.2d 525, 528.
EXCLUSIVE RIGHT. An exclusive right is one
which only the grantee thereof can exercise, and
from which all others are prohibited or shut out.
By "exclusive right" essential to a right of way by prescription, the law means that the right should not depend
for its enjoyment upon a similar right in others; it must
be exclusive as against the right of the community at
large. Downie v. City of Renton, 162 Wash. 181, 298 P.
454, 457.
The word "exclusive," as used in deed granting exclusive
right to erect and maintain poles with wires meant that
the right was exclusive of grantor, not exclusive in grantee,
American Telephone & Telegraph Co. of Massachusetts v.
McDonald, 273 Mass. 324, 173 N.E. 502, 503.
EXCLUSIVE USE. As used in law authorizing
registration of trade-marks, means exclusive use
not only of specific mark but also any other confusingly similar mark or term. McKesson & Robbins v. Charles H. Phillips Chemical Co., C.C.A.
Conn., 53 F.2d 1011.
Exclusive use does not mean that no one may or does
not use way except claimant of easement, but means only
that claimant's right to do so does 'not depend on like right
in others, Rush v. Collins, 366 Ill. 307, 8 N.E.2d 659, 662.
Seminary property is fairly to be regarded as in "exclusive use" for educational purposes. Trustees of Phillips
Exeter Academy v. Exeter, 90 N.H. 472, 27 A.2d 569, 591.
EXCLUSIVELY. Apart from all others. Lee v.
Gulf Oil Corporation, 148 Fla. 612, 4 So.2d 868, 870,
871; People ex rel. Divico v. Adams, 264 App.Div.
315, 35 N.Y.S.2d 453, 455; Only, Lee v. Gulf Oil
Corporation, 148 Fla. 612, 4 So.2d 868, 870, 871;
Standard Oil Co. of Texas v. State, Tex.Civ.App.,
142 S.W.2d 519, 521, 522, 523. Purely. Baptist
Memorial Hospital v. Couillens, 176 Tenn. 300, 140
S.W.2d 1088, 1092. Solely. Provident Life & Acci-
674
EXCUSABLE
dent Ins. Co. v. Campbell, 18 Tenn.App. 452, 79 S.
W.2d 292, 296; Stuart v. Occidental Life Ins. Co.,
156 Or. 522, 68 P.2d 1037, 1044. Substantially all or
for the greater part. Anoka County v. City of
St. Paul, 194 Minn. 554, 261 N.W. 588, 99 A.L.R.
1137. To the exclusion of all others; without admission of others to participation; in a manner to
exclude. Standard Oil Co. of Texas v. State, Tex.
Civ.App., 142 S.W.2d 519, 521, 522, 523. Wholly.
People ex rel. Divico v. Adams, 264 App.Div. 315,
35 N.Y.S.2d 453, 455; Baptist Memorial Hospital
v. Couillens, 176 Tenn. 300, 140 S.W.2d 1088, 1092.
EXCOMMUNICATO INTERDICITUR OMNIS ACTUS LEGITIMUS, ITA QUOD AGERE NON P0TEST, NEC ALIQUEM CONVENIRE, LICET
IPSE AB ALIIS POSSIT CONVENIRI. Co. Litt.
133. Every legal act is forbidden an excommunicated person, so that he cannot act, nor sue any
person, but he may be sued by others.
EXCLUSIVELY FOR PUBLIC PURPOSES. It is
not essential to exemption from taxation under
provisions exempting from taxation public property used "exclusively for any public purpose"
that all the property that is part of the utility
unit be used for public purposes. City of Toledo
v. Jenkins, 143 Ohio St. 141, 54 N.E.2d 656, 664, 665.
EXCLUSIVELY INTERSTATE. Transportation
of passengers by motor vehicles between points
within state over route lying partly outside state
held exclusively interstate. Conlin Bus Lines v.
Old Colony Coach Lines, 282 Mass. 498, 185 N.E.
350, 352.
EXCLUSIVELY OF ALL OTHER CAUSES. Mean
that, if accident is shown to be cause of injury
for which action is brought, insured can recover.
Williams v. General Accident Fire & Life Assur.
Corporation, Limited, of Perth, Scotland, 144 Kan.
755, 62 P.2d 856, 857.
EXCLUSIVELY USED. The phrase in provision
exempting from taxation properties exclusively
used for religious worship, for schools or for purposes purely charitable, has reference to primary
and inherent as over against a mere secondary
and incidental use. Salvation Army v. Hoehn, Mo.,
354 Mo. 107, 188 S.W.2d 826, 830.
EXCOMMENGEMENT. Excommunication ( q.
v.). Co. Litt. 134a.
EXCOMMUNICATION. A sentence of censure
pronounced by one of the spiritual courts for offenses falling under ecclesiastical cognizance.
It is described in the books as two-fold : (1) The lesser
excommunication, which is an ecclesiastical censure, excluding the party from the sacraments; (2) the greater,
which excludes him from the company of all Christians.
Formerly, too, an excommunicated man was under various
civil disabilities. He could not serve upon juries, or be a
witness in any court; neither could he bring an action to
recover lands or money due to him. These penalties are
abolished by St. 53 Geo. III. c. 127. 3 Steph.Comm. 721.
EXCOMMUNICATO CAPIENDO. In ecclesiastical law. A writ issuing out of chancery, founded
on a bishop's certificate that the defendant had
been excommunicated, and requiring the sheriff
to arrest and imprison him, returnable to the
king's bench. 4 Bl.Comm. 415; Bac. Abr. "Excommunication," E.
EXCOMMUNICATO DELIBERANDO. A writ to
the sheriff for delivery of an excommunicated
person out of prison, upon certificate from the
ordinary of his conformity to the ecclesiastical
jurisdiction. Fitzh. Nat. Brev. 63.
EXCOMMUNICATO RECAPIENDO. A writ commanding that persons excommunicated, who for
their obstinacy had been committed to prison, but
were unlawfully set free before they had given
caution to obey the authority of the church, should
be sought after, retaken, and imprisoned again.
Reg. Orig. 67.
EXCULPATE is employed in sense of excuse of
justification. State v. Langdon, 46 N.M. 277, 127
P.2d 875, 876.
EXCULPATION. In Scotland the law allows of
an "exculpation", by which the prisoner is suffered
before his trial to prove the thing to be impossible. State v. Langdon, 46 N.M. 277, 127 P.2d 875,
876.
EXCULPATION, LETTERS OF. In Scotch law.
A warrant granted at the suit of a prisoner for
citing witnesses in his own defense.
EXCULPATORY. Clearing or tending to clear
from alleged fault or guilt; excusing. Moore v.
State, 124 Tex.Cr.R. 97, 60 S.W.2d 453.
EXCULPATORY CLAUSE. Such clause in favor
of a trustee in will implies that trustee has power which he purports to execute, and it exculpates
him where this power is exercised in good faith.
In re Wacht's Estate, Sur., 32 N.Y.S.2d 871, 897.
EXCUSABLE. Admitting of excuse or palliation.
As used in the law, this word implies that the act or
omission spoken of is on its face unlawful, wrong, or liable
to entail loss or disadvantage on the person chargeable, but
that the circumstances attending it were such as to constitute a legal "excuse" for it, that is, a legal •reason for
withholding or foregoing the punishment, liability, or
disadvantage which otherwise would follow.
EXCUSABLE ASSAULT. One committed by accident or misfortune in doing any lawful act by
lawful means, with ordinary caution and without
any unlawful intent. People v. O'Connor, 82 App.
Div. 55, 81 N.Y.S. 555.
EXCUSABLE HOMICIDE. See Homicide.
EXCUSABLE NEGLECT. In practice, and particularly with reference to the setting aside of a
judgment taken against a party through his "excusable neglect," this means a failure to take the
proper steps at the proper time, not in consequence of the party's own carelessness, inattention, or willful disregard of the process of the
court, but in consequence of some unexpected or
unavoidable hindrance or accident, or reliance on
the care and vigilance of his counsel or on promises made by the adverse party. See 1 Bl. Judgm.
§ 340; Brothers v. Brothers, 71 Mont. 378, 230 P.
60, 61; Westbrook v. Rice, 28 N.D. 324, 148 N.W.
675
EXCUSAT
827, 828; Boise Valley Traction Co. v. Boise City,
37 Idaho, 20, 214 P. 1037, 1038; Haas v. Scott, 115
Or. 580, 239 P. 202, 204.
EXCUSAT AUT EXTENUAT DELICTUM IN
CAPITALIBUS QUOD NON OPERATUR IDEM
IN CIVILIBUS, Bac. Max: r. 15. That may excuse or palliate a wrongful act in capital cases
which would not have the same effect in civil
injuries. See Broom, Max. 324.
EXCUSATIO. In the civil law. An excuse or reason which exempts from some duty or obligation.
EXCUSATOR.
English law. An excuser.
Old German law. A defendant; he who utterly
denies the plaintiff's claim. Du Cange.
EXCUSATUR QUIS QUOD CLAMEUM NON OPPOSUERIT, UT SI TOTO TEMPORE LITIGII
FUIT ULTRA MARE QUACUNQUE OCCASIONE.
Co. Litt. 260. He is excused who does not bring
his claim, if, during the whole period in which it
ought to have been brought, he has been beyond
sea for any reason.
EXCUSE. A reason alleged for doing or not
doing a thing. Worcester; State v. Weagley, 286
Mo. 677, 228 S.W. 817, 820; State v. Saffron, 143
Wash. 34, 254 P. 463. A matter alleged as a reason for relief or exemption from some duty or
obligation.
That which is offered as a reason for being excused, or a plea offered in extenuation of a fault
or irregular deportment; it is that plea or statement made by the accused which arises out of
the state of facts constituting and relied on as
the cause. State v. Craig, 161 S.C. 232, 159 S.E.
559, 560.
EXCUSS. To seize and detain by law.
EXCUSSIO.
Civil law. A diligent prosecution of a remedy
against a debtor; the exhausting of a remedy
against a principal debtor, before resorting to his
sureties. Translated "discussion" (q. v.).
Old English law. Rescue or rescous. Spelman.
L.R. 315; Lynch v. Figge, 192 N.Y.S. 873, 876, 200 App.
Div. 92; Perko v. Rock Springs Commercial Co., 37 Wyo.
98, 259 P. 520, 522; The execution of a contract includes
performance of all acts necessary to render it complete as
an instrument. Hofgesang v. Silver, 223 Ky. 101, 3 S.W.2d
185, 186; To make and sign contract, Glick v. Daniel, 184
Ark. 576, 42 S.W.2d 1007, 1008.
To perform; carry out according to its terms; as to
execute a contract, or a writ. State v. Miller, 104 W.Va.
226, 139 S.E. 711, 712; Harrity v. Steers, 185 N.Y.S. 704,
195 App. Div. 11.
To fulfill the purpose of ; to obey; to perform the commands of ; as to execute a writ.
A statute is said to execute a use where it transmutes
the equitable interest of the cestui que use into a legal estate of the same nature, and makes him tenant of the land
accordingly, in lieu of the feoffee to uses or trustee, whose
estate, on the other hand, is at the same moment annihilated. 1 Steph.Comm. 339.
Word "sign" as used in trial court's general oral charge
and in special written charge given at request of defendant
was synonymous with word "execute". Kinney v. Glenn,
29 Ala.App. 478, 198 So. 250, 253.
EXECUTED. Completed; carried into full effect; already done or performed; taking effect
i mmediately; now in existence or in possession;
conveying an immediate right or possession. The
opposite of executory.
A contract is "executed" by being signed. Mastin Realty
& Mining Co. v. Commissioner of Internal Revenue, C.C.A.
8, 130 F.2d 1003, 1005. A trust does not become fully "executed" until subject matter of it has been properly paid
over to beneficiaries. Harlan v. Gleason, 180 Md. 24, 22 A.
2d 579, 581. Act or course of conduct carried to completion.
Northwest Steel Rolling Mills v. Commissioner of Internal
Revenue, C.C.A.9, 110 F.2d 286, 290. Term imports idea
that nothing remains to be done. Pacific Finance Corporation v. Hendley, 119 Cal.App. 697, 7 P.2d 391, 393. Term
when applied to contract includes delivery and implies complete contract. Smith v. School Dist. No. 1, Marshall
County, 187 Okl. 184, 102 P.2d 131, 134, 135. Term when
applied to deed includes the signing thereof. National
Fire Ins. Co. v. Patterson, 170 Okl, 593, 41 P.2d 645, 647.
Generally a jail sentence is "executed" only when the
convict has actually suffered the imprisonment. State ex
rel. Libtz v. Coleman, 149 Fla. 28, 5 So.2d 60, 61.
EXECUTED CONSIDERATION. A consideration which is wholly past. 1 Pars. Cont. 391. An
act done or value given before the making of the
agreement.
EXECUTED CONTRACT. See Contract.
EXECUTED ESTATE. See Estate.
EXEAT. A permission which a bishop grants to
a priest to go out of his diocese; also leave to go
out generally. For "Ne Exeat", see that title.
EXECUTED FINE. The fine sur cognizance de
droit, come ceo que it ad de son done; or a fine
upon acknowledgment of the right of the cognizee, as that which he has of the gift of the
cognizor. Abolished by 3 & 4 Wm. IV. c. 74.
EXECUTE. To complete; to make; to perform;
to do; to follow out. Glover v. American Mortgage Corporation, Tex.Civ.App., 94 S.W.2d 1235,
1236.
EXECUTED NOTE. Under Small Loan Act note
was not "executed" until it was both signed and
delivered. Trustees System Co. of Newark v.
Stoll, 13 N.J.Misc. 490, 179 A. 372, 373.
To finish, accomplish, make complete, fulfill. To perform; obey the injunctions of.
To make; as to execute a deed, which includes signing,
sealing, and delivery; performance of all necessary formalities. Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1123,
1130; White v. Hendley, 35 Cal.App. 267, 169 P. 710, 713;
Hathaway v. Cook, 258 Ill. 92, 101 N.E. 227, 228; Williams
v. Kidd, 170 Cal. 631, 151 P. 1, 8, Ann.Cas.1916E, 703. The
"execution" of a note involves not only the signing but the
delivery of the note. Kennedy & Parsons Co. v. Lander
Dairy & Produce Co., 36 Wyo. 58, 252 P. 1036, 1038, 51 A.
EXECUTED ORAL AGREEMENT. An oral
agreement is not "executed" unless it has been
fully performed by both parties. Walther v. Occidental Life Ins. Co., 40 Cal.App.2d 160, 104 P.2d
551, 554.
EXECUTED REMAINDER. See Remainder.
EXECUTED SALE. See Sale.
676
EXECUTION
EXECUTED TRUST. See Trust.
EXECUTED USE. See Use.
EXECUTED WRIT. In practice. A writ carried
into effect by the officer to whom it is directed
The term "executed," applied to a writ, has been
held to mean "used." Amb. 61.
EXECUTIO. Lat. The doing or following up of
a thing; the doing a thing completely or thoroughly; management or administration.
In old practice. Execution; the final process in
an action.
EXECUTIO BONORUM. In old English law.
Management or administration of goods. Ad ecclesiam et ad amicos pertinebit executio bonorum, the execution of the goods shall belong to the
church and to the friends of the deceased. Bract.
fol. 60b.
EXECUTIO EST EXECUTIO JURIS SECUNDUM
JUDICIUM. 3 Inst. 212. Execution is the execution of the law according to the judgment.
EXECUTIO EST FINIS ET FRUCTUS LEGIS.
Co. Litt 289. Execution is the end and fruit of
the law.
EXECUTIO JURIS NON HABET INJURIAM. 2
Roll. 301. The execution of law does no injury.
EXECUTION. Carrying out some act or course
of conduct to its completion. Northwest Steel
Rolling Mills v. Commissioner of Internal Revenue, C.C.A.9, 110 F.2d 286, 290. Completion of an
act. Domestic Finance Corporation v. Williams,
174 Misc. 227, 20 N.Y.S.2d 467, 469. Putting into
force, Greene v. Wheeler, C.C.A.Wis., 29 F.2d
468, 469. The completion, fulfillment, or perfecting of anything, or carrying it into operation and
effect.
At common law, executions are said to be either final or
quousque; the former, where complete satisfaction of the
debt is intended to be procured by this process; the latter,
where the execution is only a means to an end, as where
the defendant is arrested on ca. sa.
The word cannot be stretched to include prescription;
the natural meaning of "execution" is "performance," including excuses for performance. Wood & Selick v. Compagnie Generale Transatlantique, C.C.A.N.Y., 43 F.2d 941,
942.
Where testatrix left residue of her estate to be divided
equally among named individuals, but provided that, if
any of those beneficiaries should be deceased at time of "execution" of the will, their share "is" to revert to testatrix'
estate, the word "execution" had reference to time when
will should take effect and not to time when will was
signed. Central Nat. Bank v. Stevenson, 25 Del.Ch. 215,
16 A.2d 114, 115.
Writ of assistance is in the nature of an "execution."
Davis v. Federal Land Bank of Columbia, 217 N.C. 145,
7 S.E.2d 373, 376.
Attachment distinguished
Term "executions" as used in Code section dealing with
commissions which sheriff may charge in cases where
sheriff has collected a judgment on execution without making a sale of the judgment debtor's property is sufficiently
broad to include attachment, Jones-Noland Drilling Co. v.
Bixby, 34 N.M. 413, 282 P. 382. 384.
Under an attachment, property of defendant is placed
in custody of law to await final determination of suit, and
the attachment is really a preliminary execution dependent for its ultimate efficacy upon the rendering of a judgment in plaintiff's favor; on the other hand, an "execution" is a remedy afforded by 4.w for the enforcement of
a judgment of the court. J. M. Radford Grocery Co. v.
Owenby, Tex.Civ.App., 34 S.W.2d 385, 387.
Criminal Law
The carrying into effect of the sentence of the law by the
infliction of capital punishment. 4 BI.Comm. 403; 4 Steph.
Comm. 470.
French Law
A method of obtaining satisfaction of a debt or claim by
sale of the debtor's property privately, ti. e., without judicial process, authorized by the deed or agreement of the
parties or by custom; as, in the case of a stockbroker, who
may sell securities of his customer, bought under his instructions or deposited by him, to indemnify himself or
make good a debt. Arg.Fr.Merc.Law, 557.
Garnishment
Execution includes writ of garnishment. Buckley v. F.
L. Riley Mercantile Co., 155 Miss. 150, 124 So. 267.
Garnishee execution is an execution against property.
In re Howard Hotel Corporation, 150 Misc. 782, 270 N.Y.S.
259.
Garnishment after judgment "is execution" within statute providing that execution , shall only be issued from
court in which judgment is rendered. Though a garnishment is not an execution, garnishment after execution is
practically an equitable execution. First Nat. Bank of
Cordell v. City Guaranty Bank of Hobart, 174 Okl. 545, 51
P.2d 573, 576.
Order of Sale
"Execution" in statute includes an order of sale. Bartlett Mortg. Co. v. Morrison, 183 Okl. 214, 81 P.2d 318, 322;
Blanscet v. Palo Duro Furniture Co., Tex.Civ.App., 68 S.
W.2d 527, 528.
Practice
The name of a writ issued to a sheriff, constable, or
marshal, authorizing and requiring him to execute the
judgment of the court. Raulerson v. Peeples, 81 Fla. 206,
87 So. 629, 630.
For "Attachment execution," see Attachment.
For "Body Execution," "Dormant Execution,"
"Equitable Execution," "General Execution,"
"Junior Execution" and "Special Execution," see
those titles.
For "Execution of Judgment or Decree," see
that title.
For "Testatum execution," see Testatum.
EXECUTION CREDITOR. See Creditor.
EXECUTION LIEN. An "execution lien" may be
created by service of execution, levy upon real
estate, and filing of a certificate of levy in the
proper office of county in which real estate is
located. Reconstruction Finance Corporation v.
Maley, C.C.A.Ill., 125 F.2d 131, 135.
EXECUTION OF INSTRUMENT. Execution includes signing, sealing, and delivering. Erie R.
Co. v. S. J. Groves & Sons Co., 111 N.J.L.
100, 166 A. 205, 207. Completion of instrument.
Domestic Finance Corporation v. Williams, 174
Misc. 227, 20 N.Y.S.2d 467, 469. Subscribing and
delivery of instrument. Miller v. Jansen, Cal.
App., 128 P.2d 97, 98.
Delivery is essential to complete execution of deed.
Barnes v. Aycock, 219 N.C. 360, 13 S.E.2d 611, 612.
Execution imports, includes or involves delivery. Miller
v. Jansen, 21 Ca1.2d 473, 132 P.2d 801, 802; .ivicCarthy Co.
677
EXECUTION
v. Commissioner of Internal Revenue, C.C.A.9, 80 F.2d 618,
620; Stocks v. Inzer, 232 Ala. 482, 168 So. 877, 878.
Execution includes performance of all acts necessary to
render instrument complete and of every act required to
give instrument validity or to carry it into effect. Northwest Steel Rolling Mills v. Commissioner of Internal Revenue, C.C.A.9, 110 F.2d 286, 290.
Execution of deed means making thereof, Turlington v.
Neighbors, 222 N.C. 694, 24 S.E.2d 648, 650.
Execution of instruments means making thereof, and
when spoken of deeds, it includes all acts such as signing,
sealing, and delivering, which are necessary to give effect
thereto. United States v. Peppa, D.C.Cal., 13 F.Supp. 669,
670.
Execution of prescription means preparation and delivery
by authorized person. U. S. v. Peppa, D.C.Cal., 13 F.Supp.
669.
"Execution" of written contract includes signing, unconditional delivery by promisor, and acceptance by promisee. Coen v. American Surety Co. of New York, C.C.A.
Mo., 120 F.2d 393, 397.
Performance and completion of all of those formal acts
essential for mortgage's effectiveness. Southern Enterprises v. Foster, La.App., 12 So.2d 842, 844.
Signing, acknowledging, delivering and acceptance of
mortgage are essential to "execution" of mortgage. Illinois Nat. Bank & Trust Co. v. Holmes, 311 Ill.App. 286, 35
N.E.2d 823, 825.
Term "execution" as employed in respect to
promissory note means both signing and delivery
of bill or note, and mere signing is insufficient.
In re Tynan's Estate, 142 Neb. 671, 7 N.W.2d 628,
630.
The signing and publication of a will.
The signing, sealing, and delivery of deeds. Turlington
v. Neighbors, 222 N.C. 694, 24 S.E.2d 648, 650.
Words "issuing" and "execution," used in statutes in relation to passing of title by tax deed, are interchangeable
terms. Lance v. Smith, 123 Fla. 461, 167 So. 366, 369.
EXECUTION OF JUDGMENT OR DECREE.
"Execution" is putting into effect of final judgment of court. Tice v. Tice, 208 Iowa 145, 224 N.
W. 571, 572.
As used in Code provision regarding right to demand
that nullity of judgment be declared unless defendant suffered judgment to be executed, means the seizure of property. Frank v. Currie, La.App., 172 So. 843, 848.
Execution embraces all appropriate means to execution
of judgment, Buckley v. F. L. Riley Mercantile Co., 155
Miss. 150, 124 So. 267.
Process to carry into effect decree or judgment is execution. Painter v. Berglund, 31 Cal.App.2d 63, 87 P.2d 360,
363; Miller v. London, 294 Mass. 300, 1 N.E.2d 198, 200.
Sometimes from the neglect of parties, or some other
cause, it became impossible to carry a decree into execution without the further decree of the court upon a bill
filed for that purpose. This happened generally in cases
where, parties having neglected to proceed upon the decree,
their rights under it became so embarrassed by a variety
of subsequent events that it was necessary to have the decree of the court to settle and ascertain them. Such a bill
might also be brought to carry into execution the judgment of an inferior court of equity, if the jurisdiction of
that court was not equal to the purpose; as in the case of
a decree in Wales, which the defendant avoided by fleeing into England. This species of bill was generally partly an original bill, and partly a bill in the nature of an
original bill, though not strictly original. Story, Eq. P1
342; Daniell, Ch.Pr. 1429.
Statutory means provided for enforcement of judgment
requiring the payment of money is execution. Lupton v.
Edmundson, 220 N.C. 188, 16 S.E.2d 840, 841.
The last stage of a suit, whereby possession is obtained
of anything recovered. It is styled "final process," and
consists in putting the sentence of the law in force. 3 Bl.
Comm. 412. The carrying into effect of the sentence or
judgment of a court. U. S. v. Nourse, 9 Pet. 28, 9 L. Ed.
31; Griffith v. Fowler, 18 Vt. 394; Hurlbutt v. Currier,
68 N.H. 94, 38 A. 502.
Within statute providing for execution of judgment after
five years from its entry, "execution" is used in broad
sense of execution or carrying into effect by such means as
are provided by law for enforcement of various classes of
judgments. Bank of America N. T. & S. A. v. Katz, 45
Cal.App.2d 138, 113 P.2d 759, 760.
Writ of execution is a civil proceeding for enforcement
of a judgment against property. Lash v. Mann, 141 Ohio
St. 577, 49 N.E.2d 689, 691.
EXECUTION PAREE, In French law. A right
founded on an act passed before a notary, by
which the creditor may immediately, without citation or summons, seize and cause to be sold the
property of his debtor, out of the proceeds of
which to receive his payment. It imports a confession of judgment, and is not unlike a warrant
of attorney. Code Proc. La. art. 732; 6 Toullier,
no. 208; 7 Toullier, no. 99.
EXECUTION SALE. A sale by a sheriff or other
ministerial officer under the authority of a writ
of execution which he has levied on property of
the debtor. Noland v. Barrett, 122 Mo. 181, 26
S.W. 692, 43 Am.St.Rep. 572; Norton v. Reardon,
67 Kan. 302, 72 P. 861, 100 Am.St.Rep. 459.
Sale under order in mortgage foreclosure proceeding is
sale on execution. Goslen v. Waddell Inv. Co., 145 Old.
269, 292 P. 362, 364.
Execution sales relate to sales under a writ of execution.
Peebler v. Olds, 56 Cal.App.2d 13, 132 P.2d 236, 237.
EXECUTION THEREOF. In ordinance providing that contractor should not have claim under
city contract unless controller certified that at
date of "execution thereof" sufficient amount
stood to credit of appropriation for contract,
words "execution thereof" mean date of certification. Edwin E. Hallenbeck, Inc., v. Hadley, 312
Pa. 176, 167 A. 574, 575.
EXECUTIONE FACIENDA. A writ commanding
execution of a judgment. Obsolete. Cowell.
EXECUTIONE FACIENDA IN WITHERNAMIUM. A writ that lay for taking cattle of one
who has conveyed the cattle of another out of
the county, so that the sheriff cannot replevy
them. Reg. Orig. 82.
EXECUTIONE J1UDICII. A writ directed to the
judge of an inferior court to do execution upon a
judgment therein, or to return some reasonable
cause wherefore he delays the execution. Fitzh.
Nat. Brev. 20.
EXECUTIONER. The name given to him who
puts criminals to death, according -to their sentence; a hangman.
EXECUTIVE. As distinguished from the legislative and judicial departments of government,
the executive department is that which is charged
with the detail of carrying the laws into effect
and securing their due observance. The word
"executive" is also used as an impersonal designation of the chief executive officer of a state or
nation. In re Railroad Com'rs, 15 Neb. 679, 50
678
EXECUTOR
N.W. 276; In re Davies, 168 N.Y. 89, 61 N.E. 118,
56 L.R.A. 855; State v. Denny, 118 Ind. 382, 21
N.E. 252, 4 L.R.A. 79.
Under constitutional provision dividing powers of government into the legislative, the executive, including the
administrative, and the judicial departments, the word "administrative" is not used as synonymous with "executive".
Tucker v. State, 218 Ind. 614, 35 N.E.2d 270, 290.
Words "executive" and "administrative" may be used
as synonymous or interchangeable terms. Saint v. Allen,
169 La. 1046, 126 So. 548, 555.
EXECUTIVE ACT.
"Executive" and "administrative" duties are such as concern the execution
of existing laws. People ex rel. Holvey v. Kapp,
355 Ill. 596, 189 N.E. 920, 923.
EXECUTIVE ADMINISTRATION, or MINISTRY. A political term in England, applicable to
the higher and responsible class of public officials
by whom the chief departments of the government of the kingdom are administered.
The number of these amounts to fifty or sixty persons.
Their tenure of office depends on the confidence of a majority of the house of commons, and they are supposed to
be agreed on all matters of general policy except such as
are specifically left open questions. Cab.Lawy.
EXECUTIVE AGENCY.
These words include collector and Secretary of Treasury. U. S. v. Paramount Publix Corporation, Cust. & Pat. App., 73
F.2d 103, 105; Selective Training and Service Act
boards. United States ex rel. Beers v. Selective
Training and Service Local Board No. 1, Rock
County, Wis., D.C.Wis., 50 F.Supp. 39, 40. Works
Projects Administration. Thomason v. Works
Projects Administration, C.C.A.Idaho, 138 F.2d 342,
343.
EXECUTIVE AGENT. President of a bank is but
the "executive agent" of board of directors. Ex
parte Lamberth, 242 Ala. 165, 5 So.2d 622, 623.
EXECUTIVE AUTHORITY.
Petition for referendum filed with clerk is filed with executive authority of municipality. State ex rel. Tietje v. Collett,
138 Ohio St. 425, 35 N.E.2d 568, 570. State ex rel.
City of Middletown v. City Commission of City of
Middletown, 140 Ohio St. 368, 44 N.E.2d 459, 463.
EXECUTIVE CAPACITY.
Duties in such capacity
relate to active participation in control, supervision, and management of business. Arkansas
Amusement Corporation v. Kempner, C.C.A.Ark.,
57 F.2d 466, 473; Wilkinson v. Noland Co., D.C.
Va., 40 F.Supp. 1009, 1012.
EXECUTIVE EMPLOYEES. Persons whose duties include some form of managerial authority,
actually directing the work of other persons.
Stanger v. Glenn L. Martin Co., D.C.Md., 56 F.
Supp. 163, 166; persons whose duties relate to active participation in control, supervision and management of business, or who administer affairs,
or who direct, manage, execute or dispense. Steiner v. Pleasantville Constructors, 181 Misc. 798, 46
N.Y.S.2d 120, 123.
The term executive employee carries the idea of supervision of or control over ordinary employees. Ralph
Knight, Inc., v. Mantel, C.C.A.Mo., 135 F.2d 514, 517.
EXECUTIVE FUNCTIONS
have relation to management of all or some part of a business and imply activity. Arkansas Amusement Corporation v.
Kempner, 182 Ark. 897, 33 S.W.2d 42, 43.
General charge, control, and conduct of taxation is "executive function." In re Opinion of the Justices, 87 N.H.
492, 179 A. 357, 110 A.L.R. 819.
EXECUTIVE OFFICER.
An officer of the executive department of government; one in whom resides the power to execute the laws; one whose
duties are to cause the laws to be executed and
obeyed. People v. Salsbury, 134 Mich. 537, 96 N.
W. 939; Petterson v. State, Tex.Cr.App., 58 S.W.
100; Mekota v. State Board of Equalization and
Assessment, Neb., 19 N.W.2d 633, 640. An administrative officer. Sheely v. People, 54 Colo. 136, '129
P. 201, 203.
Officers who are neither judicial nor legislative are executive officers. Spivey v. State, 69 Okl.Cr. 337, 104 P.2d
263, 277; -State v. Emory, 55 Idaho 649, 46 P.2d 67, 68.
One vested with power to carry out obligations intrusted
to him and charged with administrative duties relative to
executing, performing, and carrying into effect purposes of
his employment. State Automobile Mutual Ins. Ass'n of
Columbus v. Friedman, 122 Ohio St. 334, 171 N.E. 591, 592.
One who assumes command or control and directs course
of business, or some part thereof, and who outlines duties
and directs work of subordinate employees. Arkansas
Amusement Corporation v. Kempner, 182 Ark. 897, 33 S.W.
2d 42, 43.
Cashier of bank is executive officer. Mays v. Board of
Com'rs of Creek County, 164 Okl. 231, 23 P.2d 664.
President and vice president of corporation are executive
officers. Emmerglick v. Philip Wolf, Inc., C.C.A.N.Y., 138
F.2d 661, 662.
EXECUTIVE ORDER INDIAN RESERVATION
is reservation created by order of Chief Executive
withdrawing land within its boundaries from settlement or making other disposition of it under
public land laws of United States. Santa Rita Oil
& Gas Co. v. Board of Equalization, 101 Mont. 268,
54 P.2d 117, 122.
EXECUTIVE PARDON
is an executive act of
grace exempting an individual from punishment
for a crime he has committed. People ex rel.
Prisament v. Brophy, 287 N.Y. 132, 38 N.E.2d 468,
470, 139 A.L.R. 667. See Pardon.
EXECUTIVE POWERS AND DUTIES on which
Supreme Court may advise Governor, means a duty appertaining to the execution of the laws as
they exist. In re Advisory Opinion to Governor,
154 Fla. 866, 19 So.2d 370, 371.
The "executive power" vested in the Governor by the
Constitution is the power to "execute" the laws, that is, to
carry them into effect, as distinguished from the power to
make the laws and the power to judge them. Tucker v.
State, 218 Ind. 614, 35 N.E.2d 270, 291.
EXECUTIVE SALARIES.
Means salaries of officers only. Leonard v. S. G. Frantz Co., 268 App.
Div. 144, 49 N.Y.S.2d 329, 332.
EXECUTIVE WARRANT of Governor of asylum
state is but license or privilege to move within
state, and may be revoked before border is crossed.
Downey v. Schmidt, D.C.Tex., 4 F.Supp. 1, 3.
EXECUTOR. A person appointed by a testator
to carry out the directions and requests in his
679
EXECUTOR
will, and to dispose of the property according to
his testamentary provisions after his decease. In
re Lamb's Estate, 122 Mich. 239, 80 N.W. 1081;
In re Sipchen's Estate, 180 Wis. 504, 193 N.W. 385,
387; Ricks v. Johnson, 134 Miss. 676, 99 So. 142,
146.
A person to whom a testator by his will commits the execution, or putting in force, of that instrument and its codicils. Fonbl. 307.
Appointment as executor of person on whom will casts
affirmative duty to collect debts, adjust claims and make
distribution of assets, is validated. In re Hazen's Estate,
175 Misc. 851, 25 N.Y.S.2d 293, 295, 296.
One named in will as executor is an "executor" even before probate of will. McKibban v. Scott, 131 Tex. 182, 114
S.W.2d 213, 215, 115 A.L.R. 1421.
One to whom another man commits by his last will the
execution of that will and testament. 2 Bl.Comm. 503.
Person appointed under will appointing person as "administrator of my estate after my death," held testamentary "executor". Succession of Rassat, La.App., 157 So.
412, 414.
Person nominated as executor becomes "executor" only
when will is admitted to probate and when he takes oath.
Robertson v. National Spiritualists' Ass'n, Tex., 25 S.W.2d
889, 894.
Person or corporation empowered to discharge duties of
a fiduciary, appointed as such by testator in his will. In re
Watkins' Estate, 113 Vt. 126, 30 A.2d 305, 310.
Term "executor" as employed in statute providing that
county judge shall receive commission on actual cash receipts of each executor, refers to executor administering
estate of testator under control of probate court. Willis
v. Harvey, Tex., 26 S.W.2d 288, 289.
Words "custodian and administrator" in will directing
a p pointment of named person mean "executor." Frazier
v. Frazier, 83 Colo. 188, 263 P. 413, 414.
Civil Law
A ministerial officer who executed or carried into effect
the judgment or sentence in a cause.
Ecclesiastical Law
Executor a lege constitutus, an executor appointed by
law; the ordinary of the diocese.
Executor ab episcopo constitutus, or executor dativus, an
executor appointed by the bishop; an administrator to an
Intestate.
Executor a testatore constitutus, an executor appointed
by a testator. Otherwise termed "executor testamentars;" a testamentary executor.
An executor to the tenor is one who, though not directly
constituted executor by the will, is therein charged with
duties in relation to the estate which can only be performed
by the executor.
For "Coexecutor," "General Executor," "Instituted Executor," "Joint Executors," "Limited Executor," "Special Executor" and "Substituted Executor," see those titles.
EXECUTOR DATIVE. See Dative.
EXECUTOR DE SON TORT. See De Son Tort.
EXECUTOR NAMED IN WILL. Where will requested that executor named designate some person to act as executor in case of his own disability
and requested that . a bank be named as executor
in event of failure of executor named to designate
another to act in his place, and executor named
executed formal instrument requesting that the
bank be appointed in his stead, such bank was
"executor named in the will," In re Crosby's Estate, 218 Minn. 149, 15 N.W.2d 501, 505.
EXECUTOR OR ADMINISTRATOR OF A DECEASED EXECUTOR. Under statute relating to
right to require an accounting from "executor or
administrator, of a deceased executor," representative of deceased representative of deceased representative of an estate cannot be compelled to
file an account. In re Griffin's Estate, 170 Misc.
496, 1066, 10 N.Y.S.2d 161.
EXECUTOR—TRUSTEE. An executor whose duties of holding and managing assets were extended by the will beyond the period usually permissible for their administration. In re Putnam's
Will, 173 Misc. 151, 17 N.Y.S.2d 238, 239.
EXECUTORIAL DUTIES are what any layman
could perform or was capable of performing. In
re Owen's Estate, 144 Misc. 688, 259 N.Y.S. 892.
For the most part, "executorial duties" consist in ascertaining proper net amount of various parts of testator's
property after payment of debts and expenses, and distributing them among persons entitled. Keel v. First Nat.
Bank of Pikeville, 271 Ky. 745, 113 S.W.2d 33, 36, 116 A.L.
R. 151.
Generally, a power of sale given an executor which is of
an imperative nature, and the exercise of which is not left
to executor's discretion, creates an "executorial duty" rather than a "trust". Esser v. Chimel, Del.Ch., 30 A.2d 685,
687.
EXECUTORY. That which is yet to be executed
or performed; that which remains to be carried
into operation or effect; incomplete; depending
upon a future performance or event. The opposite of executed.
Right which is not vested but lies in action and which
requires resort to court of equity to invest plaintiff with
right claimed is "executory." Parks v. Classen Co., 156
Old. 43, 9 P.2d 432, 435.
As to executory "Bequests," "Contracts," "Devises," "Estates," "Remainders," "Trusts," and
"Uses," see those titles.
EXECUTOR BY SUBSTITUTION. A successor
executor appointed by testator entitled to succeed
to administration of estate following resignation
of first executor who had partially administered
upon such estate. In re Stahl's Estate, 113 Ind.
App. 29, 44 N.E.2d 529, 532.
EXECUTOR CREDITOR. See Creditor.
EXECUTOR LUCRATUS. An executor who has
assets of his testator who in his life-time made
himself liable by a wrongful interference with the
property of another. 6 Jur., N.S., 543.
EXECUTORY CONSIDERATION. A consideration which is to be performed after the contract
for which it is a consideration is made.
EXECUTORY CONTRACT TO SELL. Under
which something remains to be done by either
party before delivery and passing of title. Martin
v. John Clay & Co., Mo.App., 167 S.W.2d 407, 411.
EXECUTORY FINES. These are the fines sur
cognizance de droit tantum; sur concessit; and
sur done, grant et render. Abolished by 3 & 4
Wm. IV. C. 74.
680
EXEMPTION
EXECUTORY INTERESTS. A general term, comprising all future estates and interests in land or
personalty, other than reversions and remainders.
A right which is not vested in possession but lies in action, and which it is necessary to obtain the peculiar relief
afforded by courts of equity in order to invest plaintiff
with the right claimed, is an "executory interest". Lang
v. Shell Petroleum Corporation, Tex.Civ.App., 141 S.W.2d
667, 671.
EXECUTORY LIMITATION. A limitation of a
future interest by deed or will; if by will, it is also called an "executory devise."
EXECUTORY PROCESS. A process which can be
resorted to in the following cases, namely: (1)
When the right of the creditor arises from an
act importing confession of judgment, and which
contains a privilege or mortgage in his favor; (2)
when the creditor demands the execution of a
judgment which has been rendered by a tribunal
different from that within whose jurisdiction the
execution is sought. Code Prac. La. art. 732;
Marin v. Lalley, 17 Wall. 14, 21 L.Ed. 596.
EXECUTORY SALE.
See Sale.
EXECUTORY UNILATERAL ACCORD. Nothing
more than an offer to enter a contract. Boyd
v. Christiansen, 229 Iowa 1, 293 N.W. 826, 828.
EXECUTORY WARRANTIES. Arise where insured undertakes to perform some executory stipulation, as that certain acts will be done, or that
certain facts will continue to exist. Procacci v.
United States Fire Ins. Co., 118 N.J.L. 423, 193 A.
180, 182.
EXECUTRESS. A female executor. Hardr. 165,
473.
EXECUTRIX. A woman who has been appointed
by will to execute such will or testament.
EXECUTRY. In Scotch law. The movable estate of a person dying, which goes to his nearest
of kin. So called as falling under the distribution
of an executor. Bell.
EXEDOS. See Ejidos.
EXIDOS. See Ejidos,
EXEMPLA ILLUSTRANT NON RESTRINGUNT
LEGEM. Co. Litt. 240. Examples illustrate, but
do not restrain, the law.
EXEMPLAR. A specimen which is capable of supporting both deduction and inference. In re Fisher's Estate, 47 Idaho 668, 279 P. 291, 293.
EXEMPLARY DAMAGES. See Damages.
EXEMPLI GRATIA. For the purpose of example,
or for instance. Often abbreviated "ex. gr." or
e. g
EXEMPLIFICATION. An official transcript of a
document from public records, made in form to be
used as evidence, and authenticated as a true copy.
A writ granted for the
exemplification or transcript of an original record.
Reg. Orig. 290.
EXEMPLIFICATIONE.
EXEMPLUM. In the civil law. Copy; a written
authorized copy. This word is also used in the
modern sense of "example,"—ad exemplum constituti singulares non trahi, exceptional things
must not be taken for examples. Calvin.
EXEMPT, v. To release, discharge, waive, relieve
from liability. Davidow v. Jenks, Sup., 48 N.Y.S.
2d 586, 588.
To relieve, excuse, or set free from a duty or
service imposed upon the general class to which
the individual exempted belongs; as to exempt
from militia service. Jones v. Wells Fargo Co.
Express, 83 Misc. 508, 145 N.Y.S. 601, 602. See 1
St. at Large, 272.
To relieve certain classes of property from
bility to sale on execution.
lia-
EXEMPT, n. One who is free from liability to
military service; as distinguished from a detail,
who is one belonging to the army, but detached or
set apart for the time to some particular duty or
service, and liable, at any time, to be recalled to
his place in the ranks. In re Strawbridge, 39 Ala.
379. Relieved. In re Miller's Estate, 330 Pa. 477,
199 A. 148, 149. See Exempts.
EXEMPT FROM ALL TAXATION. In proposed
constitutional amendment, exempting specified
homesteads from taxation, mean exempt when
not restrained by Federal Constitution. Gray v.
Winthrop, 115 Fla. 721, 156 So. 270, 94 A.L.R.
804.
EXEMPTION. Freedom from a general duty or
service; immunity from a general burden, tax, or
charge. Green v. State, 59 Md. 128, 43 Am.Rep.
542; Koenig v. Railroad Co., 3 Neb. 380; Long v.
Converse, 91 U.S. 113, 23 L.Ed. 233; Poore v. Bowlin, 150 Tenn. 412, 265 S.W. 671.
A privilege allowed by law to a judgment debtor, by
which he may hold property to a certain amount, or certain classes of property, free from all liability to levy and
sale on execution or attachment. Turrill v. McCarthy, 114
Iowa, 681, 87 N.W. 667; Williams v. Smith, 117 Wis. 142,
93 N.W. 464; In re Trammell, D.C.Ga.; 5 F.2d 326, 327.
A right given by law to a debtor to retain portion of
his property free from claims of creditors. Pickens v.
Pickens, 125 Tex. 410, 83 S.W.2d 951, 954.
An "exemption" contemplated by constitutional provision forbidding exemption of property from taxation is an
exemption from all taxation in any form. Turco Paint &
Varnish Co. v. Kalodner, 320 Pa. 421, 184 A. 37, 43.
An "exemption" from inheritance tax is a deduction. In
re Maxson's Estate, 30 Cal.App.2d 566, 86 P.2d 922, 924.
As applied to taxation "exemption" is freedom from
burden of enforced contributions to expenses and maintenance of government. Washington Chocolate Co. v. King
County, 21 Wash.2d 630, 152 P.2d 981, 984.
Credit against income tax for income tax paid to other
state or country is an "exemption". Miller v. McColgan,
17 Ca1.2d 432, 110 P.2d 419, 424, 134 A.L.R. 1424; Keasbey
& Mattison Co. v. Rothensies, C.C.A.3, 133 F.2d 894, 898.
Deduction made in determining taxable income is an
"exemption," Tupelo Garment Co. of Tupelo, Miss. v.
State Tax Commission, 178 Miss. 730, 173 So. 656, 660.
681
EXEMPTION
The words "exemption from seizure" in statute providing
that a pension or other reward granted by the United
States for military service is exempt from seizure in legal
proceeding meant "not subject to debts." In re McCormick's Estate, 169 Misc. 672, 8 N.Y.S.2d 179, 188.
of option and communication of decision to optionor within life of option. Floyd v. Morgan,
60 Ga.App. 496, 4 S.E.2d 91, 95.
EXERCITALIS. A soldier; a vassal. Spelman.
EXEMPTION LAWS. Laws which provide that
a certain amount or proportion of a debtor's
property shall be exempt from execution.
EXERCITOR NAVIS. Lat. The temporary owner or charterer of a . ship. Mackeld. Rom. Law,
§ 512; The Phebe, 19 Fed.Cas. 418.
EXEMPTION, WORDS OF. It is a maxim of law
that words of exemption are not to be construed
to import any liability; the maxim expressio unsus
alterius, or its converse, exclusio
unius inclusio alterius, not applying to such a
Case. For example, an exemption of the crown
from the bankruptcy act 1869, in one specified
particular, would not inferentially subject the
crOwn to that act in any other particular. Brown.
EXERCITORIA ACTIO. In the civil law. An
action which lay agaipst the employer of a vessel
(exercitor navis) for the contracts made by the
master. Inst. 4, 7, 2; 3 Kent, Comm. 161; Mackeld. Rom. Law, § 512.
EXERCITORIAL POWER. The trust given to a
ship-master.
EXEMPTS. Persons who are not bound by law,
but excused from the performance of duties imposed upon others.
EXERCITUAL. In old English law. A heriot
paid only in arms, horses, or military accouterments.
EXENNIUM. In old English law. A gift; a new
year's gift. Cowell.
EXERCITUS. In old European law. An army;
an armed force. The term was absolutely indefinite as to number. It was applied, on various occasions, to a gathering of forty-two armed men,
of thirty-five, or even of four. Spelman.
EXEQUATUR. Lat. Let it be executed.
In French practice, this term is subscribed by judicial
authority upon a transcript of a judgment from a foreign
country, or from another part of France, and authorizes
the execution of the judgment within the jurisdiction
where it is so indorsed.
International Law
A certificate issued by the foreign department
of a state to a consul or commercial agent of another state, recognizing his official character, and
authorizing him to fulfill his duties.
EXERCISE. To make use of. Thus, to exercise
a right or power is to do something which it enables the holder to do. U. S. v. Souders, 27 Fed.
Cas. 1267; Cleaver v. Comm., 34 Pa. 284; Snead
v. Wood, 24 Ga.App. 210, 100 S.E. 714, 715.
To put in action or practice, to carry on something, to transact. Salway v. Multnomah Lumber
& Box Co., 134 Or. 428, 293 P. 420, 421.
The "exercise" of an option to purchase is merely the
election of optionee to purchase. Floyd v. Morgan, 60 Ga.
App. 496, 4 S.E.2d 91, 97.
EXERCISE OF JUDGMENT. Exercise of sound
discretion, that is, discretion exercised, not arbitrarily or willfully, but with regard to what is
right and equitable. United States v. Beckman,
C.C.A.Pa., 104 F.2d 260, 262.
EXERCISE OF JUDICIAL DISCRETION. In
practical effect, "exercise of judicial discretion"
by trial judge means doing as he pleases, unguided by law. Borger v. Mineral Wells Clay Products Co., Tex.Civ.App., 80 S.W.2d 333, 334.
EXETER DOMESDAY. The name given to a
record preserved among the muniments and
charters belonging to the dean and chapter of
Exeter Cathedral, which contains a description of
the western parts of the kingdom, comprising the
counties of Wilts, Dorset, Somerset, Devon, and
Cornwall. The Exeter Domesday was published
with several other surveys nearly contemporary,
by order of the commissioners of the public records, under the direction of Sir Henry Ellis, in a
volume supplementary to the Great Domesday,
folio, London, 1816. Wharton.
EXFESTUCARE. To abdicate or resign; to resign or surrender an estate, office, or dignity, by
the symbolical delivery of a staff or rod to the
alienee.
EXFREDIARE. To break the peace; to commit
open violence. Jacob.
EXHIEREDATIO. In the civil law. Disinheriting; disherison. The formal method of excluding
an indefeasible (or forced) heir from the entire
inheritance, by the testator's express declaration
in the will that such person shall be exhceres.
Mackeld. Rom. Law, § 711.
EXHIERES. In the civil law. One disinherited.
Vicat; Du Cange.
EXERCISED DOMINION. Open acts and conduct relative to land as evidence claim of the
right of absolute possession, use, and ownership.
Whelan v. Henderson, Tex.Civ.App., 137 S.W.2d
150, 153.
EXHAUSTION OF ADMINISTRATIVE REMEDIES. The doctrine is that, where an administrative remedy is provided by statute, relief must be
sought from administrative body and such remedy exhausted before courts will act. Abelleira
v. District Court of Appeal, Third Dist., 17 Ca1.2d
280, 109 P.2d 942, 949, 132 A.L.R. 715; Hill v. Brisbane, 66 Cal.App.2d 15, 151 P.2d 578, 582.
EXERCISING AN OPTION. Elements are decision of optionee to purchase property under terms
EXHEREDATE. In Scotch law. To disinherit;
to exclude from an inheritance.
682
EXIGI
Scotch law. An action for compelling the production of writings.
EXHIBERE. To present a thing corporeally, so
that it may be handled. Vicat. To appear personally to conduct the defense of an action at
law.
EXHIBITION VALUE. "Minimum sale" or "exhibition value" is interchangeably used with term
"price expectancy" in moving picture industry, denoting minimum receipts which distributors expect to realize from exhibition of pictures. Export & Import Film Co. v. B. P. Schulberg Productions, 125 Misc. 756, 211 N.Y.S. 838, 839.
EXHIBIT, v. To show or display; to offer or
present for inspection. To produce anything in
public, so that it may be taken into possession.
Dig. 10, 4, 2.
To present; to offer publicly or officially; to
file of record. Thus we speak of exhibiting a
charge of treason, exhibiting a bill against an
officer of the king's bench by way of proceeding
against him in that court. In re Wiltse, 5 Misc.
105, 25 N.Y.Supp. 737; Newell v. State, 2 Conn. 40.
To administer; to cause to be taken; as medicines.
EXHUMATION. Disinterment; the removal
from the earth of anything previously buried
therein, particularly a human corpse.
EXIGENCE, or EXIGENCY. Demand, want,
need, imperativeness; emergency, something arising suddenly out of the current of events; any
event or occasional combination of circumstances,
calling for immediate action or remedy; a pressing necessity; a sudden and unexpected happening or an unforeseen occurrence or condition.
United States v. Atlantic Coast Line Co., D.C.N.C.,
224 F. 160, 162; Los Angeles County v. Payne, 8
Cal.2d 563, 66 P.2d 658, 663. Something arising
suddenly out of circumstances calling for immediate action or remedy, or where something helpful needs to be done at once, yet not so pressing
as an emergency. State ex rel. Odenwald v. District Court of Tenth Judicial Dist. in and for
Fergus County, 98 Mont. 1, 38 P.2d 269, 271.
To submit to a court or officer in course of proceedings. In re Edwards' Estate, 138 Neb. 671,
294 N.W. 422, 425.
The word implies some affirmative act or at least some
conduct on part of person charged with duty of exhibiting
a thing or who exhibits it. Pecht v. Colby Management
Corporation, 131 Cal.App. 2, 20 P.2d 768, 769.
EXHIBIT, n. A paper or document produced and
exhibited to a court during a trial or hearing, or
to a commissioner taking depositions, or to auditors, arbitrators, etc., as a voucher, or in proof
of facts, or as otherwise connected with the subject-matter, and which, on being accepted, is
marked for identification and annexed to the deposition, report, or other principal document, or
filed of record, or otherwise made a part of the
case.
EXIGENCY OF A BOND. That which the bond
demands or exacts, i. e., the act, performance, or
event upon which it is conditioned.
EXIGENCY OF A WRIT. The command or imperativeness of a writ; the directing part of a
writ; the act or performance which it commands.
A paper referred to in and filed with the bill,
answer, or petition in a suit in equity, or with a
deposition. Brown v. Redwyne, 16 Ga. 68.
EXIGENDARY. In English law. An officer who
makes out exigents. See Exigenter.
EXHIBITANT. A complainant in articles of the
peace. 12 Adol. & E. 599.
EXHIBITED. Displayed. Callison v. State, Tex.
Civ.App., 146 S.W.2d 468, 469.
EXHIBITIO BILLIE. Lat. Exhibition of a bill.
In old English practice, actions were instituted by
presenting or exhibiting a bill to the court, in
cases where the proceedings were by bill; hence
this phrase is equivalent to "commencement of
the suit."
EXHIBITION. Something that one views, or at
which one looks, and at the same time hears.
Longwell v. Kansas City, 199 Mo.App. 480, 203 S.W.
657, 659.
As used in consignment of art objects, indicates a special
showing, Lion v. Lilienfeld, Sup., 30 N.Y.S.2d 866, 869.
Motion pictures are "exhibitions" subject to regulation.
Thayer Amusement Corporation v. Moulton, 63 R.I. 182, 7
A.2d 682, 686, 124 A.L.R. 236.
Ecclesiastical law. An allowance for meat and
drink, usually made by religious appropriators of
churches to the vicar. Also the benefaction settled for the maintaining of scholars in the universities, not depending on the foundation. Paroch. Antiq. 304.
EXIGENT, or EXIGI FACIAS. L. Lat. In English practice. A judicial writ made use of in the
process of outlawry, commanding the sheriff to
demand the defendant, (or cause him to be demanded, exigi faciat,) from county court to county court, until he be outlawed; or, if he appear,
then to take and have him before the court on a
day certain in term, to answer to the plaintiff's
action. 1 Tidd Pr. 132; 3 Bl. Comm. 283, 284;
Archb. N. Pr. 485. Outlawry has long been obsolete. See Allocato Comitatu; Allocatur Exigent.
EXIGENT LIST. A phrase used to indicate a list
of cases set down for hearing upon various incidental and ancillary motions and rules.
EXIGENTER. An officer of the English court of
common pleas, whose duty it was to make out
the exigents and proclamations in the process of
outlawry. Cowell. Abolished by St. 7 Wm. IV.
and 1 Viet. c. 30. Holthouse.
EXIGI FACIAS. That you cause to be demanded.
The emphatic words of the Latin form of the writ
of exigent. They are sometimes used as the
name of that writ.
683
EXIGIBLE
EXIGIBLE. Demandable; requirable.
EXIGIBLE DEBT.. A liquidated and demandable
-or matured claim. Gulf Refining Co. of Louisiana
v. Glasse11, 186 La. 190, 171 So. 846, 853.
EXILE. Banishment; the person banished.
EXILIUM. Lat. In old English law. (1) Exile;
banishment from one's country. (2) Driving
away; despoiling. The name of a species of
waste, which consisted in driving away tenants or
vassals from the estate; as by demolishing buildings, and so compelling the tenants to leave, or
by enfranchising the bond-servants, and unlawfully turning them out of their tenements. Fleta,
1. 1, c. 9.
EXILIUM EST PATRLZE PRIVATIO, NATALIS
SOLI MUTATIO, LEGUM NATIVARUM AMISSIO. 7 Coke, 20. Exile is a privation of country,
a change of natal soil, a loss of native laws.
EXIST. To live; to have life or animation; to
be in present force, activity, or effect at a given
time; as in speaking of "existing" contracts,
creditors, debts, laws, rights, or liens. Wing v.
Slater, 19 R.I. 597, 35 Atl. 302, 33 L.R.A. 566; Poe
v. Poe, 125 Ark. 391, 188 S.W. 1190; In re Havel's
Estate, 156 Minn. 253, 194 N.W. 633, 34 A.L.R.
1300. To be or continue to be. State v. Sawtooth Men's Club, 59 Idaho 616, 85 P.2d 695, 698.
See, also, Existing.
EXISTENCE. As applied to will means physical
existence. In re Kerckhof's Estate, 13 Wash.2d
469, 125 P.2d 284, 287, 290; unrevoked. In re
Flood's Estate, 47 Cal.App.2d 809, 119 P.2d 168,
169.
EXISTIMATIO. In the civil law. The civil reputation which belonged to the Roman citizen, as
such. Mackeld. Rom. Law, § 135. Called a state
or condition of unimpeached dignity or character,
(dignitatis inicesce status;) the highest standing
of a Roman citizen. Dig. 50, 13, 5, 1.
Also the decision or award of an arbiter.
EXISTING. The force of this word is not necessarily confined to the present.
EXISTING CLAIM. Claim which has arisen.
Great Western Oil Co. v. Bailey, 35 N.M. 277, 295
P. 298, 299.
EXISTING CREDITORS. As used in statute regarding validity of chattel mortgage against existing creditors, means general creditors who
have acquired a lien thereon. In re Lewis' Estate,
230 Iowa 694, 298 N.W. 842.
Persons having subsisting obligations against
debtor at time fraudulent alienation was made or
secret trust created, although claims may not
have matured or been reduced to judgment until
after such conveyance. First Nat. Bank v. Merrick, 103 N.J.Eq. 63, 142 A. 243; First State Bank
of Mobeetie v. Goodner, Tex.Civ.App., 168 S.W.
2d 941, 944.
To determine whether person is such an "existing creditor" as can invoke protection of statute of Elizabeth, inception of debt is time which
controls. Matthews v. Montgomery, 193 S.C. 118,
7 S.E.2d 841, 848.
EXISTING DEBT. To have an "existing debt"
it is sufficient if there is an absolute debt owing
though the period for its payment may not yet
have arrived. Helms v. State, 137 Old. 55, 280 P.
416, 417.
A tax may be a "debt" within meaning of agreement
to assume "existing debts". Shepard v. Commissioner of
Internal Revenue, C.C.A.7, 101 F.2d 595, 598.
EXISTING DISEASE. A chronic or definite affliction such as would be embraced in the common
understanding and meaning of the term "diseased"
or "sick." Browning v. Equitable Life Assur. Soc.
of United States, 94 Utah 532, 72 P.2d 1060, 1074.
EXISTING EQUITY implies an existing right to
future payment, and including a contingent liability, as distinguished from an "existing debt,"
implying a present, enforceable liability. Barkley v. Kerfoot, 77 Wash. 556, 137 P. 1046, 1047;
State v. Smith, 107 Ohio St. 1, 140 N.E. 737, 738.
EXISTING INDEBTEDNESS ON THE POLICY.
Reference in statute to any "existing indebtedness
on the policy," to be deducted from reserve value
in computing extended term insurance, means indebtedness created by "proper assignment of policy". Occidental Life Ins. Co. v. Jamora, Tex.Civ.
App., 44 S.W.2d 808, 812.
EXISTING LAW. As used in appropriation act for
street improvements requiring refund from street
railways under "existing law" refer to statute law.
District of Columbia v. Georgetown & T. Ry. Co.,
59 App.D.C. 335, 41 F.2d 424, 425.
As used in federal statute rendering initial carrier liable
for negligence of connecting carrier and providing that
nothing in statute should deprive holder of bill of lading of
any remedy or right of action which he has under existing
law mean existing federal law and not state law. Fort
Worth & Denver City Ry. Co. v. Motley, Tex.Civ.App., 87
S.W.2d 551, 554.
EXISTING LIABILITIES embrace conditional or
contingent obligations, which may or may not in
the future result in indebtedness. Daniels v. Goff,
192 Ky. 15, 232 S.W. 66, 67.
A tax may be a "liability" within meaning of
agreement to assume "existing liabilities." Shepard v. Commissioner of Internal Revenue, C.C.A.
7, 101 F.2d 595, 598.
EXISTING PERSON. A child conceived, but not
born, is to be deemed an "existing person" so far
as may be necessary for its interests in the event
of its subsequent birth. Comp.Laws N.D.1913, §
4337; 1 Bl.Comm. 130.
EXISTING PUBLIC SCHOOL. Mean not only
the building, but the school grounds. State ex rel.
Fronton Exhibition Co. v. Stein, 144 Fla. 387, 198
So. 82, 87.
EXISTING RAILROAD CORPORATIONS. Extends to such as are incorporated after as well as
684
EXPECT
before its passage, unless exception is provided
in their charters. Indianapolis & St. L. R. Co. v.
Blackman, 63 Ill. 117; Lawrie v. State, 5 Ind. 525;
Fox v. Edwards, 38 Iowa, 215.
EXISTING RIGHT. Rights as exist under general laws. Funk v. Inland Power & Light Co., 164
Wash. 110, 1 P.2d 872, 874.
EXISTING USE. Construction of adaptability of
a building or room for purpose, and employment
of building or room or land within the purpose.
Appeal of Yocom, 142 Pa.Super. 165, 15 A.2d 687,
690.
Utilization of premises so that they may be
known in neighborhood as being employed for given purpose. De Felice v. Zoning Board of Appeals of Town of East Haven, 130 Conn. 156, 32 A.
2d 635, 637, 638; Landay v. MacWilliams, 173 Md.
460, 196 A. 293, 297, 114 A.L.R. 984.
EXISTS OR IS KEPT OR MAINTAINED. An
actual being; something in fact in existence;
something continuing and not failing. McCarron
v. Commonwealth, 169 Va. 387, 193 S.E. 509, 512.
EXIT. Lat. It goes forth. This word is used in
docket entries as a brief mention of the issue of
process. Thus, "exit fi. fa." denotes that a writ
of fieri facias has been issued in the particular
case. The "exit of a writ" is the fact of its issuance.
EXIT WOUND. A term used in medical jurisprudence to denote the wound made by a weapon
on the side where it emerges, after it has passed
completely through the body, or through any part
of it.
EXITUS. Children; offspring. The rents, issues,
and profits of lands and tenements. An export
duty. The conclusion of the pleadings.
EXLEGALITAS. In old English law. Outlawry.
Spelman.
EXLEGALITUS. He who is prosecuted as an outlaw. Jacob.
EXLEGARE. In old English law. To outlaw;
to deprive one of the benefit and protection of the
law, (exuere aliquem beneficio legis.) Spelman.
EXLEX. In old English law. An outlaw; qui
est extra legem, one who is out of the law's protection. Bract. fol. 125. Qui beneficio legis privatur. Spelman.
EXOINE. In French law. An act or instrument
in writing which contains the reasons why a party in a civil suit, or a person accused, who has
been summoned, agreeably to the requisitions of
a decree, does not appear. Poth. Proc. Crim. § 3,
art 3. The same as "Essoin" (q. v.).
EXONERATE. To relieve, to exculpate. Standard Oil Co. of New York v. Stevens, 103 Vt. 1,
151 A. 507, 508.
EXONERATION. The removal of a burden,
charge, or duty. Particularly, the act of relieving
a person or estate from a charge or liability by
casting the same upon another person or estate.
Louisville & N. R. Co. v. Comm., 114 Ky. 787, 71
S.W. 916; Bannon v. Burnes, C.C.Mo., 39 Fed. 898.
A right or equity which exists between those who are
successively liable for the same debt. "A surety who discharges an obligation is entitled to look to the principal for
reimbursement, and to invoke the aid of a court of equity
for this purpose, and a subsequent surety who, by the
terms of the contract, is responsible only in case of the default of the principal and a prior surety, may claim exoneration at the hands of either." Bisp.Eq. § 331.
A right to have a fund applied to payment of guaranteed
claims. Stulz-Sickles Co. v. Fredburn Const. Corporation,
114 N.J.Eq. 475, 169 A. 27, 28.
The right which a person has who has been compelled to
pay what another should be forced to pay in full. Fidelity
& Casualty Ins. Co. of New York v. Sears, Roebuck & Co.,
124 Conn. 227, 199 A. 93, 94.
Scotch Law
A discharge; or the act of being legally disburdened of, or liberated from, the performance
of a duty or obligation. Bell.
EXONERATIONE SECTZE. A writ that lay for
the crown's ward, to be free from all suit to the
county court, hundred court, leet, etc., during
wardship. Fitzh. Nat. Brev. 158.
EXONERATIONE SECTIE AD CURIAM BARON.
A writ of the same nature as that last above described, issued by the guardian of the crown's
ward, and addressed to the sheriffs or stewards of
the court, forbidding them to distrain him, etc.,
for not doing suit of court, etc. New Nat. Brev. 352.
EXONERETUR. Lat. Let him be relieved or
discharged. An entry made on a bailpiece, whereby the surety is relieved or discharged from further obligation, when the condition is fulfilled by
the surrender of the principal or otherwise.
EXORBITANT. Deviating from the normal or
customary course, or going beyond the rule of established limits of right or propriety. U. S. v.
Oglesby Grocery Co., D.C.Ga., 264 F. 691, 695.
EXORDIUM. The beginning or introductory part
of a speech.
EXPATRIATION. The voluntary act of abandoning one's country, and becoming the citizen or subject of another. Ludlam v. Ludlam, 31 Barb. (N.
Y.) 489. See Emigration; Reynolds v. Haskins,
C.C.A.Kan., 8 F.2d 473, 475, 45 A.L.R. 759; United
States ex rel. Wrona v. Karnuth, D.C.N.Y., 14 F.
Supp. 770, 771; 1 Barton, Con y . 31, note; Vaugh.
227, 281; 7 Co. 16; Dy. 2, 224, 298b, 300b; 2 P.
Wms. 124; 1 Hale, Pl.Cr. 68; 1 Wood, Con y . 382;
Westl.Priv.Int.Law; Story, Confi. Laws; Cockburn, Nationality. The voluntary renunciation or
abandonment of nationality and allegiance.
Schaufus v. Attorney General of United States,
D.C.Md., 45 F.Supp. 61, 66; Perkins v. Elg, D.C.,
307 U.S. 325, 39 S.Ct. 884, 889, 83 L.Ed. 1320.
EXPECT. To await; to look forward to something intended, promised, or likely to happen. Atchison, etc., R. Co. v. Hamlin, 67 Kan. 476, 73 P.
58; Kronenberg v. Whale, 21 Ohio App. 322, 153
685
EXPECT
N.E. 302, 308; to look for mentally, to look forward to, as to something about to happen or come,
to have a previous apprehension of whether good
or evil, to look for with some confidence, and
once meant to demand, to require. Holcomb v.
Holcomb, 173 Miss. 192, 159 So. 564, 566.
The word has also a secondary meaning, in which it
i mplies a demand rather than anticipation, as where a
person, in negotiating a contract, says he will "expect" to
write half the fire insurance. Sillman v. Spokane Savings
& Loan Soc., 103 Wash. 619, 175 P. 296, 297.
Where testator gave life estate provided that after life
tenant's death he "expected" his realty to be sold the
word "expect" was almost equivalent of word "direct".
Wattjes v. Faeth, 379 Ill. 290, 40 N.E.2d 521, 524.
'EXPECTABLE RISK. Risk which is indefinite
and uncertain. Martin v. Hodson, 93 N.H. 66, 35
A.2d 402, 404.
EXPECTANCY. That which is expected or hoped
for. The condition of being deferred to a future
time, or of dependence upon an expected event;
contingency as to possession or enjoyment. With
respect to the time of their enjoyment, estates
may either be in possession or in expectancy; and
of expectancies there are two sorts,—one created
by the act of the parties, called a "remainder;"
the other by act of law, called a "reversion." 2
Bl.Comm. 163.
" 'Expectancy' as applied to property, is contingency as
to possession, that which is expected or hoped for. At
most it is a mere hope or expectation, contingent upon the
will and pleasure of the landowner, and hardly reaches the
height of a property right, much less a vested right, because where there is no obligation, there is no right. It
is a possibility for which a party may under certain circumstances properly hope." Robinson v. Eagle-Picher
Lead Co., 132 Kan. 860, 297 P. 697, 698, 75 A.L.R. 840.
EXPECTANCY OF LIFE. In the doctrine of life
annuities, the share or number of years of life
which a person of a given age may, upon an equality of chance, expect to enjoy. Wharton.
EXPECTANT. Contingent as to enjoyment. Having relation to, or dependent upon, a contingency.
EXPECTANT ESTATES, See Estate in Expectancy.
happening of some future event. Pearsall v. Great
Northern R. Co., 161 U.S. 646, 16 S.Ct. 705, 40 L.
Ed. 838; Pollack v. Meyer Bros. Drug Co., C.C.A.
Mo., 233 F. 861, 868; Adams v. Ernst, 1 Wash.2d
254, 95 P.2d 799, 804. A right is contingent, not
vested, when it comes into existence only on an
event or condition which may not happen. Wirtz
v. Nestos, 51 N.D. 603, 200 N.W. 524, 530.
EXPECTATION OF LIFE. See Expectancy of
Life.
EXPECTED. A shipping agent's letter that a ship
was "expected" to be ready to be loaded at a port
on a stated date constituted a representation of
a belief or expectation. L. N. Jackson & Co. v.
Seas Shipping Co., 185 Misc. 94, 56 N.Y.S.2d 501,
503.
EXPECTED SERVICE. Incidental to employment
is that service which an employee has no absolute
duty to perform but is of the type of duty which
has the approval of the employer. Severson v. Industrial Commission, 221 Wis. 169, 266 N.W. 235,
236.
EXPEDIENCY. Involves utility. Woolf v. Fuller,
87 N.H. 64, 174 A. 193, 196, 94 A.L.R. 1067.
EXPEDIENT. Apt and suitable to end in view.
Werner v. Biederman, 64 Ohio App. 423, 28 N.E.2d
957, 959. Whatever is suitable and appropriate
in reason for the accomplishment of a specified
object. Eustace v. Dickey, 240 Mass. 55, 132 N.E
852, 862.
EXPEDIENTE. An historical record of proceedings in connection with grant of land by the sovereign. State v. Balli, Tex.Civ.App., 173 S.W.2d 522,
526. In Mexican law, a term including all the
papers or documents constituting a grant or title
to land from government. Vanderslice v. Hanks,
3 Cal. 27, 38.
EXPEDIMENT. The whole of a person's goods
and chattels, bag and baggage. Wharton.
EXPEDIT REIPUBLICZE NE SUA RE QUIS
MALE UTATUR. It is for the interest of the state
that a man should not enjoy his own property improperly (to the injury of others). Inst. 1, 8, 2.
EXPECTANT HEIR. A person who has the expectation of inheriting property or an estate, but
small present means.
The term is chiefly used in equity, where relief is afforded to such persons against the enforcement of "catching
bargains," (q. v.) Jeffers v. Lampson, 10 Ohio St. 106;
In re Robbins' Estate, 199 Pa. 500, 49 A.. 233. "The phrase
is used not in its literal meaning, but as including every
one who has either a vested remainder, or a contingent
remainder in a family property, including a remainder in
a portion, as well as a remainder in an estate, and every
one who has the hope of succession to the property of an
ancestor, either by reason of his being the heir-apparent
or presumptive, or by reason, merely, o the expectation of
a devise or bequest on account of the supposed or presumed
affection of his ancestor or relation. More than this, the
doctrine as to expectant heirs has been extended to all
reversioners and remaindermen. So that the doctrine not
only included the class mentioned, who in some popular
sense might be called 'expectant heirs,' but also all remaindermen and reversioners." Jessel, M. R.
EXPECTANT RIGHT. A contingent right, not
vested; one which depends on the continued existence of the present condition of things until the
EXPEDIT REIPUBLICIE UT SIT FINIS LITIUM.
It is for the advantage of the state that there be
an end of suits; it is for the public good that actions be brought to a close. Co.Litt. 303b; Broom,
Max. 365-6; Belcher v. Farrar, 8 Allen, Mass. 329.
This maxim belongs to the law of all countries:
1 Phill. Int. L. 553; French v. Shotwell, 5 Johns.
Ch., N.Y., 555, 568.
EXPEDITATIE- ARBORES. Trees rooted up or
cut down to the roots. Fleta, 1. 2, c. 41.
EXPEDITATION. In old forest law. A cutting
off the claws or ball of the forefeet of mastiffs or
other dogs, to prevent their running after deer;—
a practice for the preservation of the royal fors
ests. Cart. de For. c. 17; Spelman; Cowell.
686
EXPENSES
to a particular person or use, in exclusion of all
others. Grout v. Gates, 97 Vt. 434, 124 A. 76, 80.
EXPEDITE. To hasten; to make haste; to speed.
Atchison, T. & S. F. Ry. Co. v. Ridley, 119 Okl.
138, 249 P. 289, 290.
As used in constitutional provision relating to allowable
increase over preceding fiscal year, includes all expenditures legally made by county rather than expenditures in
enforcement of law only. Crow v. Board of Sup'rs of
Stanislaus County, 135 Cal.App. 451, 27 P.2d 655.
The word "expenditure" has been defined as the spending of money; the act of expending; disbursement expense; money expended; a laying out of money; payment; expenditure. Crow v. Board of Sup'rs of Stanislaus
County, 135 Cal.App. 451, 27 P.2d 655.
EXPEDITER. An employee whose duty is to
see that shortage in material at one point in a
plant is remedied by delivery of the needed material from another part of the plant where it is
stacked or stored. American Mut. Liability Ins.
Co. v. Louisville & N. R. Co., 250 Ala. 354, 34 So.
2d 474, 476.
EXPENSLE LITIS. Costs or expenses of the suit,
which are generally allowed to the successful
party.
EXPEDITIO. An expedition; an irregular kind
of army. Spelman.
EXPEDITIO BREVIS. In old practice. The service of a writ. Townsh. Pl. 43.
EXPEDITION. A sending forth or setting forth
for the execution of some object of consequence.
Progress. An important journey or excursion for
a specific purpose; as, a military or exploring expedition; also, the body of persons making such
an excursion. Equitable Life Assur. Soc. of United States v. Dyess, 194 Ark. 1023, 109 S.W.2d 1263,
1265.
An important journey or excursion for specific
purpose; a journey, march, or voyage generally
of several or many persons for definite purpose,
such as a military or exploring expedition or a
trading expedition to the African coast; the word
carries an implication of a military exploit or of
an exploration into remote regions or over new
routes. Day v. Equitable Life Assur. Soc. of U. S.,
C.C.A.Colo., 83 F.2d 147, 149.
EXPEDITIOUS. Possessed of, or characterized
by, expedition or efficiency and rapidity in action;
performed with, or acting with, expedition; quick;
speedy. Atchison, T. & S. F. Ry. Co. v. Ridley,
119 Oki. 138, 249 P. 289, 290.
EXPEL. In regard to trespass and other torts,
this term means to eject, to put out, to drive out,
and generally with an implication of the use of
force. Perry v. Fitzhowe, 8 Q.B. 779; Smith v.
Leo, 92 Hun, 242, 36 N.Y.S. 949.
EXPEND. To pay out, use up, consume. Adams
v. Prather, 176 Cal. 33, 167 P. 534, 538, 3 A.L.R.
928; School Dist. No. 24 of Marion County v.
Smith, 82 Or. 443, 161 P. 706, 708. To pay out, lay
out, use up, and implies receiving something in return. In re Holmes' Estate, 233 Wis. 274, 289
N.W. 638, 641.
EXPENDERE. The word "expense" had its origin in the Latin word "expendere"; "ex" meaning
"out," and "pendere" meaning "to weigh." State
v. DeWitt C. Jones Co., 108 Fla. 613, 147 So. 230,
233.
EXPENDITORS. Paymasters. Those who expend
or disburse certain taxes. Especially the sworn
officer who supervised the repairs of the banks of
the canals in Romney Marsh. Cowell.
EXPENDITURE. An expending, a laying out of
money; disbursement;—it is not the same as an
"appropriation," the setting apart or assignment
EXPENSE. That which is expended, laid out or
consumed; an outlay; charge; cost; price. Rowley v. Clarke, 162 Iowa 732, 144 N.W. 908, 911.
Actual outlay or actual obligation to make outlay, U. S.
v. Block & Kohner Mercantile Co., D.C.Mo., 33 F.2d 196,
197; an actual and honest disbursement, H. B. Humphrey
Co. v. Pollack Roller Runner Sled Co., 278 Mass. 350, 180 N.
E. 164, 166; an outlay of money; the expenditure of time,
labor, and thought; the employment and consumption of
time and labor; act of expending, disbursement, expenditure, etc., State v. De Witt C. Jones Co., 108 Fla. 613, 147
So. 230, 233; expenditures, outlays, or disbursements of
money, In re McMurray, 131 Misc. 182, 227 N.Y.S. 115, 117;
laying out or expending of money or other resources, as
ti me or strength; expenditure; hence drain on resources;
detriment; loss; as, at the expense of health; the habit
of expending; money expended; outlay; charge; as, expenses for the journey, In re Bates' Will, 152 Misc. 627,
274 N.Y.S. 93; laying out or spending of money or other
resources, In re Bond & Mortgage Guarantee Co., Sup:, 39
N.Y.S.2d 760, 767.
For "Current Expenses," see that title.
EXPENSE IN CARRYING ON BUSINESS. Usual
or customary expenditure in course of business
during the year. Whitney v. Commissioner of
Internal Revenue, C.C.A.3, 73 F.2d 589, 591.
EXPENSES OF ADMINISTRATION. As used in
Revenue Act means obligations incurred after
decedent's death by his representatives in administering his estate. Mayer v. Reinecke, D.C.Ill., 28
F.Supp. 334, 339.
EXPENSES OF FAMILY. Medical and funeral expenses are "expenses of the family" within meaning of statute making expenses of family chargeable upon property of both husband and wife.
Hansen v. Hayes, 175 Or. 358, 154 P.2d 202, 205.
Under such a statute the term includes not only merchandise used by family as a whole, but also expenses,
such as medical aid, hospital services and burial attendance, incurred or supplied for one of the spouses. In re
De Nisson's Guardianship, 197 Wash. 265, 84 P.2d 1024,
1026.
EXPENSES OF RECEIVERSHIP. Comprehend
allowances to receivers' counsel, master's fees, appraisers' fees, auditors' fees, and rent and expenses
incurred by receivers in conducting business. Philadelphia Dairy Products Co. v. Summit Sweets
Shoppe, Ch., 113 N.J.Eq. 458, 167 A. 667.
EXPENSES OF THE STATE. Within constitutional provision for raising revenue has reference
to general operating expenses of state government
for fiscal year. State ex rel. Conrad v. Langer, 68
N.D. 167, 277 N.W. 504, 509.
687
EXPENSIS
EXPENSIS MILITUM NON LEVANDIS. An ancient writ to prohibit the sheriff from levying any
allowance for knights of the shire upon those who
held lands in ancient demesne. Reg.Orig. 261.
443, 445; Allen v. Tex. & N. 0. R. Go., Tex.Civ.App., 70
S.W.2d 758, 763.
Opinion of witness possessing peculiar knowledge, wisdom, skill or information regarding subject matter under
consideration, acquired by study, investigation, observation, practice or experience and not likely to be possessed
by ordinary layman or inexperienced person. Baker v.
Kansas City Public Service Co., 353 Mo. 625, 183 S.W.2d
873, 875; Ambruster v. Levitt Realty & Investment Co., 341
Mo. 364, 107 S.W.2d 74, 79.
Such as is given on questions of science, skill, or trade
by persons learned or experienced therein. Langford v.
State, 124 Tex.Cr.R. 473, 63 S.W.2d 1027.
EXPERIENCE. A state, extent, or duration of
being engaged in a particular study or work; the
real life as contrasted with the ideal or imaginary.
Arthur v. City of Pittsburgh, 330 Pa. 202, 198 A.
637, 638. A word implying skill, facility, or practical wisdom gained by personal knowledge, feeling, and action, and also the course or process by
which one attains knowledge or wisdom. Chicago,
I. & L. Ry. Co. v. Gorman, 58 Ind.App. 381, 106
N.E. 897, 898.
EXPERT WITNESSES may be men of science educated in the art, or persons possessing special or
peculiar knowledge acquired from practical experience. Empire Oil & Refining Co. v. Hoyt, C.
C.A.Mich., 112 F.2d 356, 360.
EXPERIENCE RATE. Under compensation policy
"experience rate," which is payable or applicable
rate, is made up by taking the basic rate and
considering the business conducted by the insured.
Metropolitan Casualty Ins. Co. of New York v.
Rochester Fruit & Vegetable Co., 232 App.Div. 321,
249 N.Y.S. 572, 575.
EXPERIENTIA PER VARIOS ACTUS LEGEM
FACIT, MAGISTRA RERUM EXPERIENTIA.
Co.Litt. 60; Branch, Princ. Experience by various
acts makes law. Experience is the mistress of
things.
EXPERIMENT. A trial or special test or observation made to confirm or disprove something doubtful. Stone v. City of Florence, 203 S.C. 527, 28
S.E.2d 409, 410, 150 A.L.R. 953; Bragg v. Ohio
Chemical & Manufacturing Co., 349 Mo. 577, 162
S.W.2d 832, 837.
In patent law, either a trial of an uncompleted mechanical structure to ascertain what changes or additions may
be necessary to make it accomplish the design of the projector, or a trial of a completed machine to test or illustrate its practical efficiency. In the former case, the
inventor's efforts, being incomplete, if they are then
abandoned, will have no effect upon the right of a subsequent inventor; but if the experiment proves the capacity
of the machine to effect what its inventor proposed, the
law assigns to him the merit of having produced a complete
invention. Northwestern Fire Extinguisher Co. v. Philadelphia Fire Extinguisher Co., 10 Phila. 227, 18 Fed.Cas.
394.
EXPERIMENTAL TESTIMONY. That of some
witness who, after the commission of the crime,
makes experiments for the purpose of ascertaining the effect of a certain act under certain conditions, and swears to such experiments. State
v. Harlan, Mo.Sup., 240 S.W. 197, 201.
EXPERT EVIDENCE. Testimony given in relation to some scientific, technical, or professional
matter by experts, i. e., persons qualified to speak
authoritatively by reason of their special training,
skill, or familiarity with the subject.
Evidence of persons who are skilled in some art, science,
profession, or business, which skill or knowledge is not
common to their fellow men, and which has come to such
experts by reason of special study and experience in such
art, science, profession, or business. Culver v. Prudential
Ins. Co. of America, 6 W.W.Harr. 582, 179 A. 400.
Opinion by qualified person on facts already proved involving scientific or technical knowledge, and not evidence
of thing done or measurement taken which any one is
competent to prove. Crichton v. Krouse, La.App., 150 So.
One who gives result of process of reasoning
which can be mastered only by special scientists.
Phillips v. Tidwell, 26 Tenn.App. 543, 174 S.W.2d
472, 477; one who has skilled experience or extensive knowledge in his calling, or in any branch
of learning, King v. State, 109 Tex.Cr.R. 173, 3 S.
W.2d 802, 804, 57 A.L.R. 407; one who has special
knowledge of subject, Pennsylvania Threshermen
& Farmers' Mut. Casualty Ins. Co. v. Messenger,
181 Md. 295, 29 A.2d 653, 655; Hutchens v. Humble
Oil & Refining Co., Tex.Civ.App., 161 S.W.2d 571,
573; Greenstreet v. Greenstreet, 65 Idaho 36, 139
P.2d 239, 242; one who is skilled in some art,
science, trade, profession, or other human activity,
and possesses peculiar knowledge concerning it,
Tri-State Broadcasting Co. v. Federal Communications Commission, 68 App.D.C. 292, 96 F.2d 564,
568; person competent to give expert testimony,
Ambruster v. Levitt Realty & Investment Co., 341
Mo. 364, 107 S.W.2d 74, 79.
Witnesses who have acquired ability to deduce correct
Inferences from hypothetically stated facts, or from facts
involving scientific or technical knowledge. City of Chicago
v. Lehmann, 262 Ill. 468, 104 N.E. 829, 830.
Witnesses who have had special opportunity for observation, or special training or special skill in obtaining the
facts in a case. Mills v. Richardson, 126 Me. 244, 137 A.
689, 690.
Experts. An expert is a skillful or experienced person;
a person having skill or experience, or peculiar knowledge
on certain subjects, or in certain professions; a scientific
witness. See Congress & E. Spring Co. v. Edgar, 99 U.S.
657, 25 L. Ed. 487; Koccis v. State, 56 N.J.Law, 44, 27 A.
800; Ellingwood v. Bragg, 52 N.H. 489; United States
Fidelity & Guaranty Co. v. Rochester, Tex.Civ.App., 281
S. W. 306, 311.
One possessing, with reference to particular subject, knowledge not acquired by ordinary persons,
Oklahoma Natural Gas Corporation v. Schwartz,
146 Okl. 250, 293 P. 1087, 1090; one skilled in any
particular art, trade, or profession, being possessed
of peculiar knowledge concerning the same, and
one who has given subject in question particular
study, practice, or observation. Hardy v. Dahl,
210 N.C. 530, 187 S.E. 788, 790; one who by habits
of life and business has peculiar skill in forming
opinion on subject in dispute, Robertson v. /Etna
Life Ins. Co., 37 Ga.App. 703, 141 S.E. 504, 505;
Sims v. State, 40 Ga.App. 10, 148 S.E. 769, 771;
one who can see all sides of a subject, Kentucky
& West Virginia Power Co. v. Howes, 246 Ky.
843, 56 S.W.2d 539.
688
EXPLOSION
EXPIRY OF THE LEGAL. In Scotch law and
practice. Expiration of the period within which
an adjudication may be redeemed, by paying the
debt in the decree of adjudication. Bell; 3 Jurid.
Styles, 3d ed. 1107.
Persons professionally acquainted with the science or
practice in question. Strickl.Ev. 408. Persons conversant
with the subject-matter on questions of science, skill, trade,
and others of like kind. Best, Ev. § 346; Crosby v. City of
East Orange, 84 N.J.Law, 708, 87 A. 341, 342; Pridgen v.
Gibson, 194 N.C. 289, 139 S.E. 443, 445, 54 A.L.R. 885.
Persons selected by the court or parties in a cause, on
account of their knowledge or skill, to examine, estimate,
and ascertain things and make a report of their opinions.
Merlin, Repert.
Persons who are professionally acquainted with some
science or are skilled in some art or trade, or who have
experience or knowledge in relation to matters which are
not generally known to the people. Miller v. State, 9
Okl.Cr. 255, 131 P. 717, 718, L.R.A.1915A, 1088.
EXPLEES. See Esplees.
EXPLETA, EXPLETIA, or EXPLECIA. In old
records. The rents and profits of an estate.
EXPLICATIO. In the civil law. The fourth
pleading; equivalent to the surrejoinder of the
common law. Calvin.
EXPILARE. In the civil law. To spoil; to rob
or plunder. Applied to inheritances. Dig. 47, 19;
Cod. 9, 32.
EXPLICIT. Not obscure or ambiguous, having
no disguised meaning or reservation. Eclipse
Lumber Co. v. Bitler, 213 Iowa 1313, 241 N.W. 696,
698.
EXPILATIO. In the civil law. The offense of
unlawfully appropriating goods belonging to a
succession. It is not technically theft (furtum)
because such property no longer belongs to the
decedent, nor to the heir, since the latter has not
yet taken possession.
EXPLOITATION. Act or process of exploiting,
making use of, or working up; utilization by application of industry, argument, or other means
of turning to account, as the exploitation of a
mine or a forest. State Finance Co. v. Hamacher,
171 Wash. 15, 17 P.2d 610, 613.
In the common law, the grant of letters testamentary, or
letters of administration, relates back to the time of the
death of the testator or intestate; so that the property of
the estate is vested in the executor or administrator from
that period.
EXPLORATION. In mining law. The examination and investigation of land supposed to contain
valuable minerals, by drilling, boring, sinking
shafts, driving tunnels, and other means, for the
purpose of discovering the presence of ore and
its extent. Colvin v. Weimer, 64 Minn. 37, 65
N.W. 1079.
EXPILATOR. In the civil law. A robber; a
spoiler or plunderer. Expilatores sunt atrociores
fures. Dig. 47, 18, 1, 1.
EXPIRATION. Cessation; termination from
mere lapse of time; as the expiration of a lease,
statute, and the like. Marshall v. Rugg, 6 Wyo.
270, 45 Pac. 486, 33 L.R.A. 679; Harris v. Goldberg, 111 Misc.Rep. 600, 182 N.Y.S. 262, 263. Coming to a close. Clevenger v. Kern, 100 Ind.App.
581, 197 N.E. 731, 737. Termination or end. Petition of Prime, 335 Pa. 218, 6 A.2d 530, 532.
EXPLORATOR. A scout, huntsman, or chaser.
EXPLOSION. A sudden expansion of a liquid
substance with result that gas generated by the
expansion escapes with violence, usually causing
a loud noise. Standard Accident Ins. Co. v. Harrison-Wright Co., 207 N.C. 661, 178 S.E. 235.
The record known in insurance circles as "expirations"
is in effect a copy of policy issued to insured which contains the date of issuance, name of insured, expiration,
amount, premiums, property covered and terms of insurance. Woodruff v. Auto Owners Ins. Co., 300 Mich. 54,
1 N.W.2d 450, 453; Kerr & Elliott v. Green Mountain Mut.
Fire Ins. Co., 111 Vt. 502, 18 A.2d 164, 168.
The term "expiration," as in an insurance policy, refers
to termination of the policy by lapse of time covering the
policy period, while "cancellation" refers to termination of
the policy by act of either or both parties prior to ending
of the policy period. Beha v. Breger, 223 N.Y.S. 726, 731,
130 Misc.Rep. 235; Hanson v. Royal Ins. Co., C.C.A.Tenn.,
257 F. 715, 716.
EXPIRATION OF CREDIT. As used in statute,
refers to expiration of additional period of grace
or credit extension accorded the debtor. Flesh.
man v. Whiteside, 148 Or. 73, 34 P.2d 648, 650, 93
A.L.R. 1456.
EXPIRATION OF PERIOD FOR REDEMPTION.
As used in statute concerning conveyance of title
by tax deed, it means time of application for tax
deed. Hartman v. Mimmack, 116 Mont. 392, 154
P.2d 279, 281.
EXPIRE. Where term of lease has ended, either
by lapse of time or by limitation, it has expired.
Burnee Corporation v. Uneeda Pure Orange Drink
Co., 132 Misc. 435, 230 N.Y.S. 239, 246.
Black's Law Dictionary Revised 4th Ed.-44
A sudden and rapid combustion, causing violent expansion of the air, and accompanied by a report. United Life,
Fire & Marine Ins. Co. v. Foote, 22 Ohio St. 348, 10 Am.
Rep. 735; Hartford Fire Ins. Co. v. Empire Coal Mining
Co., C.C.A.Colo., 30 F.2d 794, 798. In the common acceptance of the term, it includes the sudden bursting or breaking up from an internal or other force, and is not limited to
cases caused by combustion or fire. American Paper Products Co. v. Continental Ins. Co., 208 Mo.App. 87, 225 S.W.
1029, 1030. The ordinary idea is that the explosion is the
cause, while the rupture is the effect. Mitchell v. Ins. Co.,
183 U.S. 42, 22 S.Ct. 22, 46 L. Ed. 74.
A violent bursting or expansion with noise following the
sudden production of great pressure or a sudden release of
pressure. Lever Bros. Co. v. Atlas Assur. Co., C.C.A.Ind.,
131 F.2d 770, 775, 776.
A violent expansion of some force, accompanied by noise.
Sweeney v. Blue Anchor Beverage Co., 325 Pa. 216, 189 A.
331, 335.
Bursting of something with great noise and violence.
Lever Bros. Co. v. Atlas Assur. Co., C.C.A.Ind., 131 F.2d
770, 775, 776.
Bursting with a loud noise or detonation. Bower v.
Aetna Ins. Co., D.C.Tex., 54 F.Supp. 897, 898.
Sudden release of pressure such as disruption of steam
boiler, Travellers' Indemnity Co. v. B. & B. Ice & Coal Co.,
248 Ky. 443, 58 S.W.2d 640.
The word "explosion" is variously used in ordinary
speech, and is not one that admits of exact definition.
Every combustion of an explosive substance, whereby other
property is ignited and consumed, would not be an "explosion," within the ordinary meaning of the term. It is not
689
EXPLOSION
used as a synonym of "combustion." An explosion may be
described generally as a sudden and rapid combustion, causing violent expansion of the air, and accompanied
by a report. But the rapidity of the combustion, the violence of the expansion, and the vehemence of the report
vary in intensity as often as the occurrences multiply.
Hence an explosion its an idea of degrees; and the true
meaning of the word, in each particular case, must be settled, not by any fixed standard or accurate measurement,
but by the common experience and notions of men in matters of that sort. Insurance Co. v. Foote, 22 Ohio St. 348,
10 Am.Rep. 735. And see Insurance Co. v. Dorsey, 56 Md.
81, 40 Am.Rep. 403; Louisville Underwriters v. Durland,
123 Ind. 544, 24 N.E. 221, 7 L.R.A. 399.
The word "explosion," when used in a fire policy, is that
which ordinary men, not scientists, understand an explosion to be. Roma Wine Co. v. Hardware Mut. Fire Ins. Co.
of Minnesota, 31 Cal.App.2d 455, 88 P.2d 260, 262.
EXPLOSION OF ANY KIND. Under fire policy
exempting insurer from liability, phrase refers
not to agency producing explosion, but to kinds of
material which explode. McDonald v. Royal Ins.
Co., 98 Mont. 572, 40 P.2d 1005, 1006.
EXPLOSIVE. Any substance by whose decomposition or combustion gas is generated with such
rapidity that it can be used for blasting or in firearms. Schwartz v. Northern Life Ins. Co., C.C.
A.Cal., 25 F.2d 555, 559.
"Explosive" is compound or mixture susceptible of explosive chemical reaction, as gunpowder or nitroglycerine, and
has been construed not to cover specific things which do
explode or contain explosive material. Henderson v. Massachusetts Bonding & Ins. Co., 337 Mo. 1, 84 S.W.2d 922,
925.
EXPORT, v. To carry or to send abroad. Tennessee Oil Co. v. McCanless, 178 Tenn: 683, 157 S.W.
2d 267, 271, 272. To send, take, or carry an article of trade or commerce out of the country. To
transport merchandise from one country to another in the course of trade. To carry out or convey goods by sea. State v. Turner, 5 Har., Del.,
501.
Transportation of goods from United States to
foreign country. West India Oil Co. v. Sancho,
C.C.A.Puerto Rico, 108 F.2d 144, 147.
"Export," in its primary sense, means to carry or send
out of a place, and in secondary sense means to carry from
one state or country. McKesson & Robbins v. Collins, 18
Cal.App.2d 648, 64 P.2d 469, 470.
While the word export technically includes the landing
In as well as the shipment to a foreign country, it is often
used as meaning only the shipment from this country.
U. S. v. Chavez, 228 U.S. 525, 33 S.Ct. 595, 57 L.Ed. 950.
EXPORT, n, A thing or commodity exported.
More commonly used in the plural.
In American law, this term is only used of goods carried
to foreign countries, not of goods transported from one
state te another. Swan v. U. S., 190 U.S. 143, 23 S.Ct. 702,
47 L.Ed. 984; Rothermel v. Meyerle, 136 Pa. 250, 20 A. 583,
9 L.R.A. 366.
EXPORT TAX. A tax on goods going out and
which actually leave the country. Krauter v.
Menchacatorre, 202 App.Div. 200, 195 N.Y.S. 361,
363.
EXPORTATION. A severance of goods from
mass of things belonging to United States with
intention of uniting them to mass of things belonging to some foreign country. U. S. v. Hill,
C.C.A.N.Y., 34 F.2d 133, 135. The act of sending
or carrying goods and merchandise from one
country to another.
EXPOSE, v. To show publicly; to display; to
offer to the public view; as, to "expose" goods to
sale, to "expose" a tariff or schedule of rates, to
"expose" the person. Comm. v. Byrnes, 158 Mass.
172, 33 N.E. 343; Adams Exp. Co. v. Schlessinger,
75 Pa. 246. To "expose for sale" means to keep
and show for the purpose of selling. State v.
Hogan, 212 Mo.App. 473, 252 S.W. 90; to have
in stock. People ex rel. Goldstein v. Glass, 154
Misc. 569, 278 N.Y.S. 764.
To p lace in a p osition where the object spoken of is open
to danger, on where it is near or accessible to anything
which may affect it detrimentally; as, to "expose" a child,
or to expose oneself or another to a contagious disease or
to danger or hazard of any kind. In re Smith, 146 N.Y. 68,
40 N.E. 497, 28 L.R.A. 820; Davis v. Insurance Co., 81
Iowa, 496, 46 N.W. 1073, 10 L.R.A. 359; Eau Claire Sand &
Gravel Co. v. Industrial Commission of Wisconsin, 173 Wis.
561, 181 N.W. 718. To cast out to chance, to place abroad,
or in a situation unprotected. Shannon v. People, 5 Mich. 90.
Word "exposed" as used in pedestrian's complaint
against city meant that city negligently permitted hole to
remain in street open and unguarded. City of Birmingham
v. Chambless, 222 Ala. 249, 132 So. 313.
EXPOSE. Fr. A statement; account; recital;
explanation. The term is used in diplomatic language as descriptive of a written explanation of
the reasons for a certain act or course of conduct.
EXPOSITIO. Lat. Explanation; exposition; interpretation.
EXPOSITIO QUE EX VISCERIBUS CAUSE
NASCITUR, EST APTISSIMA ET FORTISSIMA
IN LEGE. That kind of interpretation which is
born [or drawn] from the bowels [or vitals] of a
cause is the aptest and most forcible in the law.
10 Coke, 24b.
EXPOSITION. Explanation; interpretation.
EXPOSITION DE PART. In French law. The
abandonment of a child, unable to take care of
itself, either in a public or private place.
EXPOSITORY STATUTE. One the office of
which is to declare what shall be taken to be the
true meaning and intent of a statute previously
enacted. Black, Const.Law (3d ed.) 89. And see
Lindsay v. United States Sa y . & Loan Co., 120
Ala. 156, 24 So. 171, 42 L.R.A. 783; People v.
Board of Sup'rs, 16 N.Y. 424.
They are often expressed thus: "The true intent and
meaning of an act passed * * * be and is hereby
declared to be;" "the provisions of the act shall not hereafter extend" ; or "are hereby declared and enacted not to
apply," and the like. This is a common mode of legislation.
EXPOSURE. The act or state of exposing or being exposed. See Expose.
Words "exposure to unnecessary danger" and the words
"unnecessary exposure to danger", include all cases of
exposure to unnecessary danger attributable to insured's
negligence. Oakley v. National Casualty Co., 217 N.C. 150,
7 S.E.2d 495, 496; Micca v. Wisconsin Nat. Life Ins. Co.,
C.C.A.I11., 75 F.2d 710, 712.
For "Indecent exposure", see Indecent.
690
EXPRESS
EXPOSURE OF CHILD. Placing it (with the intention of wholly abandoning it) in such a place
or position as to leave it unprotected against danger and jeopard its health or life or subject it to
the peril of severe suffering or serious bodily
harm. Shannon v. People, 5 Mich. 90.
EXPOSURE OF PERSON. In criminal law.
Such an intentional exposure, in a public place,
of the naked body or the private parts as is calculated to shock the feelings of chastity or to corrupt the morals of the community. Gilmore v.
State, 118 Ga. 299, 45 S.E. 226.
EXPRESS. Clear; definite; explicit; unmistakable; not dubious or ambiguous. In re Moon's
Will, 107 Vt. 92, 176 A. 410, 412. Clear, definite,
plain, direct. State ex rel. Andrews v. Zangerle,
101 Ohio St. 235, 128 N.E. 165, 167. Declared in
terms; set forth in words. Directly and distinctly stated. State ex rel. Ashauer v. Hostetter, 344
Mo. 665, 127 S.W.2d 697, 699. Explicit. Elliott v.
Hudson, 117 W.Va. 345, 185 S.E. 465, 467; made
known distinctly and explicitly, and not left to
inference. Minneapolis Steel & Machinery Co. v.
Federal Surety Co., C.C.A.Minn., 34 F.2d 270, 274.
Manifested by direct and appropriate language, as
distinguished from that which is inferred from
conduct. The word is usually contrasted with
"implied." State v. Denny, 118 Ind. 449, 21 N.E.
274, 4 L.R.A. 65.
"Express" necessarily implies previous knowledge of intended personal use. Burford v. Huesby, 35 Cal.App.2d 643, 96 P.2d 380, 381.
To force out by pressure; to press or squeeze
out, as the juice of a fruit; to empty by pressure
or squeezing. Strommen v. Prudential Ins. Co.,
187 Minn. 381, 245 N.W. 632, 634.
As to express "Conditions," "Consent," "Consideration," "Contracts," "Covenants," "Dedication,"
"Emancipation," "Invitation," "Malice," "Notice,"
"Obligation," "Trust," "Waiver," and "Warranty,"
see those titles.
EXPRESS ABROGATION. Abrogation by express provision or enactment; the repeal of a law
or provision by a subsequent one, referring directly to it.
Express abrogation is that literally pronounced by the
new law either in general terms, as when a final clause
abrogates or repeals all laws contrary to the provisions of
the new one, or in particular terms, as when it abrogates
certain preceding laws which are named.
EXPRESS ACTIVE TRUST. See Trust.
EXPRESS ASSUMPSIT. An undertaking to do
some act, or to pay a sum of money to another,
manifested by express terms.
EXPRESS AUTHORITY. Authority delegated to
agent by words which expressly authorize him to
do a delegable act. Greep v. Bruns, 160 Kan. 48,
159 P.2d 803, 808. Authority distinctly, plainly expressed, orally or in writing. Ulen v. Knecttle, 50
Wyo. 94, 58 P.2d 446, 449, 111 A.L.R. 565. Authority which is directly granted to or conferred upon
agent in express terms. Stevens v. Frost, 140 Me.
1, 32 A.2d 164, 168; Riefsnyder v. Dougherty, 301
Pa. 328, 152 A. 98, 100.
That which confers power to do a particular identical
thing set forth and declared exactly, plainly, and directly
with well-defined limits; an authority given in direct
terms, definitely and explicitly, and not left to inference or
i mplication, as distinguished from authority which is general, implied, or not directly stated or given. Fergus v.
Brady, 277 Ill. 272, 115 N.E. 393, 396, Ann.Cas.1918B, 220.
EXPRESS COLOR. An evasive form of special
pleading in a case where the defendant ought to
plead the general issue. Abolished by the common-law procedure act, 1852, 15 & 16 Vict. c. 76,
§ 64.
EXPRESS
Dedication.
COMMON-LAW DEDICATION.
See
EXPRESS COMPANY. A firm or corporation engaged in the business of transporting parcels or
other movable property, in the capacity of common carriers, and especially undertaking the safe
carriage and speedy delivery of small but valuable packages of goods and money. Alsop v.
Southern Exp. Co., 104 N.C. 278, 10 S.E. 297, 6
L.R.A. 271; Pfister v. Central Pac. Ry. Co., 70
Cal. 169, 11 P. 686, 59 Am.Rep. 404.
A common carrier that carries at regular and stated
times, over fixed and regular routes, money and other valuable packages, which cannot be conveniently or safely
carried as common freight; and also other articles and
packages of any description which the shipper desires or
the nature of the article requires should have safe and
rapid transit and quick delivery, transporting the same in
the immediate charge of its own messenger on passenger
steamers and express and passenger railway trains, which
it does not own or operate, but with the owners of which
it contracts for the carriage of its messengers and freights.
Pacific Exp. Co. v. Seibert, C.C.Mo., 44 F. 310.
EXPRESS DISSATISFACTION. Where will declares that any one expressing dissatisfaction with
its provisions should forfeit his interest, "dissatisfaction" is legally "expressed" when beneficiary
contests or objects in legal proceeding to enforcement of any provision of will. In re Hickman's
Estate, 308 Pa. 230, 162 A. 168, 169.
EXPRESS PERMISSION within statute respecting automobile owner's liability includes prior
knowledge of intended use and affirmative and active consent thereto. Bradford v. Sargent, 136
Cal.App. 324, 27 P.2d 93.
An assumpsit is "express" if promisor puts his engagement in distinct and definite language. Dukes v. Rogers,
67 Ga.App. 661, 21 S.E.2d 295, 297.
EXPRESS PRIVATE TRUST.
An undertaking made orally, by writing not under seal, or by matter of record, to perform act
or to pay sum of money to another. Holcomb v.
Kentucky Union Co., 262 Ky. 192, 90 S.W.2d 25,
27; Anderson v. Biesman & Carrick Co., 287 Ill.
App. 507, 4 N.E.2d 639, 640, 641.
EXPRESS REPEAL. Abrogation or annulment
of previously existing law by enactment of subsequent statute declaring that former law shall be
revoked or abrogated. Brockman v. Board of Directors of Jefferson County Bridge Dist., 188 Ark.
396, 66 S.W.2d 619. A repeal of statute is "ex-
691
See Trust.
EXPRESS
press" when it is literally declared by a subsequent statute. Stoker v. Police Jury of Sabine
Parish, La.App., 190 So. 192, 194.
EXPRESS REPUBLICATION of will occurs
where testator repeats ceremonies essential to
valid execution, with avowed intention of republishing will. In re Simeone's Estate, 141 Misc.
737, 253 N.Y.S. 683, 689.
EXPRESS REQUEST. That which occurs when
one person commands or asks another to do or
give something, or answers affirmatively when
asked whether another shall do a certain thing.
Zeidler'v. Goelzer, 191 Wis. 378, 211 N.W. 140, 144.
EXPRESS TERMS. Within provision that qualified acceptance, in "express terms," varies effect
of draft, "express terms" means clear, unambiguous, definite, certain, and unequivocal terms. International Finance Corp. v. Philadelphia Wholesale Drug Co., 312 Pa. 280, 167 A. 790, 792.
EXPRESSA NOCENT, NON EXPRESSA NON
NOCENT. Things expressed are [may be] prejudicial; things not expressed are not. Express
words are sometimes prejudicial, which, if omitted, had done no harm. Dig. 35, 1, 52; Id. 50, 17,
195. See Calvin.
EXPRESSA NON PROSUNT QUIE NON EXPRESSA PRODERUNT. 4 Coke, 73. The expression of things of which, if unexpressed, one would
have the benefit, is useless. Thing expressed may
be prejudicial which when not expressed will
profit.
EXPRESSED. Means stated or declared in direct terms, set forth in words; not left to inference or implication. Anderson v. Board of Ed.
of School Dist. No. 91, 390 Ill. 412, 61 N.E.2d 562,
567.
EXPRESSIO EORUM QU1E TACITE INSUNT NIHIL OPERATUR. The expression or express
mention of those things which are tacitly implied
avails nothing. 2 Inst. 365.
A man's own words are void, when the law speaketh as
much. Finch, Law, b. 1, c. 3, no. 26. Words used to
express what the law will imply without them are mere
words of abundance. 5 Coke, 11; Broom, Max. 669, 753;
2 Pars.Contr. 28; 4 Co. 73; Andr.Steph.P1. 366; Hob. 170;
3 Atk. 138; 11 M. & W. 569; 7 Exch. 28.
EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS. Expression of one thing is the exclusion of
another. Co.Litt. 210a; Burgin v. Forbes, 293
Ky. 456, 169 S.W.2d 321, 325; Newblock v. Bowles,
170 Oki. 487, 40 P.2d 1097, 1100. Mention of one
thing implies exclusion of another. Fazio v.
Pittsburgh Rys. Co., 321 Pa. 7, 182 A. 696, 698;
Saslaw v. Weiss, 133 Ohio St. 496, 14 N.E.2d 930,
932. When certain persons or things are specified,
in a law, contract, or will, an intention to exclude all others from its operation may be inferred. Little v. Town of Conway, 171 S.C. 27,
170 S.E. 447, 448.
Under this maxim, if statute specifies one exception to
a general rule or assumes to specify the effects of a certain
provision, other exceptions or effects are excluded, People
v. One 1941 Ford 8 Stake Truck, Engine No. 99T370053,
License No. P.8410, Cal., 159 P.2d 641, 642.
EXPRESSIO UNIUS PERSONS EST EXCLUSIO
ALTERHJS. Co.Litt. 210. The mention of one
person is the exclusion of another. See Broom,
Max. 651.
EXPRESSLY. In an express manner; in direct
or unmistakable terms; explicitly; definitely; directly. Le Ballister v. Redwood Theatres, 1 Cal.
App.2d 447, 36 P.2d 827; St. Louis Union Trust
Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685, 689. In an
express manner; in direct terms; with distinct
purpose; particularly. Hawkins v. Mattes, 171
Okl. 186, 41 P.2d 880, 891; the opposite of impliedly. Bolles v. Toledo Trust Co., 144 Ohio St. 195,
58 N.E.2d 381, 396.
EXPRESSUM FACIT CESSARE TACITUM.
That which is expressed makes that which is implied to cease, [that is, supersedes it, or controls
its effect.] Thus, an implied covenant in a deed is
in all cases controlled by an express covenant. 4
Coke, 80; Broom, Max. 651; 5 Bingh.N.C. 185; 6
B. & C. 609; 2 C. & M. 459; 2 E. & B. 856; Andover & Medford Turnpike Corp. v. Hay, 7 Mass.
106; Galloway v. Holmes, 1 Doug., Mich., 330.
Where a law sets down plainly its whole meaning the
court is prevented from making it mean what the court
pleases. Munro v. City of Albuquerque, 48 N.M. 306, 150
P.2d 733, 743.
EXPRESSUM SERVITIUM REGAT VEL DECLARET TACITUM. Let service expressed rule
or declare what is silent
EXPROMISSIO. In the, civil law. The species
of novation by which a creditor , accepts a new
debtor, who becomes bound instead of the old, the
latter being released. 1 Bouv.Inst. no. 802.
EXPROMISSOR. In the civil law. A person who
assumes the debt of another, and becomes solely
liable for it, by a stipulation with the creditor.
He differs from a surety, inasmuch as this contract is one of novation, while a surety is jointly
liable with his principal. Mackeld.Rom.Law, §
538; Dig. 12, 4, 4; 16, 1, 13; 24, 3, 64, 4; 38, 1, 37,
8.
EXPROMITTERE. In the civil law. To undertake for another with the view of becoming liable
in his place. Calvin.
EXPROPRIATION. This word primarily denotes
a voluntary surrender of rights or claims; the act
of divesting oneself of that which was previously
claimed as one's own, or renouncing it. In this
sense it is the opposite of "appropriation."
A meaning has been attached to the term, imported from
its use in foreign jurisprudence, which makes it synonymous with the exercise of the power of eminent domain,
i. e., the compulsory taking from a person, on compensation made, of his private property for the use of a railroad,
canal, or other public work. Brownsville v. Pavazos, 2
Woods 293, Fed.Cas.No.2,043. In Louisiana expropriation
is used as is taking under eminent domain in most of the
other states. In England "compulsory purchase" Is used;
Halsbury, Laws of England.
French Law
Expropriation is the compulsory realization of a
debt by the creditor out of the lands of his debtor,
692
EXTENDED
264, 266; to make more comprehensive or capricious, Meyering v. Miller, 33 Mo. 885, 51 S.W.2d 65, 66; Keetch v.
Cordner, 90 Utah 423, 62 P.2d 273, 277, 108 A.L.R. 52; to
stretch out or to draw out; Crane Enamelware Co. v.
Smith, 168 Tenn. 203, 76 S.W.2d 644; Loeffier v. Federal
Supply Co., 187 Okl. 373, 102 P.2d 862, 864.
Statute authorizing Interstate Commerce Commission to
require carriers to "extend" lines is confined to extensions
within undertaking of carriers to serve, and does not
embrace new lines reaching new territory. InterstateyCommerce Commission v. Oregon-Washington R. & Na . Co.,
Or., 288 U.S. 14, 53 S.Ct. 266, 77 L.Ed. 588.
To extend a charter is to give one which now exists
greater or longer time to operate in than that to which it
was originally limited. Fidelity & Columbia Trust Co. v.
Louisville Ry. Co., 258 Ky. 817, 81 S.W.2d 896, 900.
To "extend" a lease or contract is not necessarily the
same as "renew," for a stipulation to renew requires the
making of a new lease, while one to extend does not.
Sanders v. Wender, 205 Ky. 422, 265 S.W. 939, 941. See,
also, Nenzel v. Rochester Silver Corporation, 48 Nev. 41,
226 P. 1102, 1105; Livingston Waterworks v. City of Livingston, 53 Mont. 1, 162 P. 381, 383, L.R.A.1917D, 1074;
Buckland v. Tarble, 95 Vt. 87, 112 A. 217, 218. But whether
a clause in a lease is a covenant of renewal or an agreement for an extension depends on the parties' intention
and the use of the word "renewal"; Freiheit v. Broch, 98
Conn. 166, 118 A. 828, 829; and the two terms may be used
practically synonymously; American Press v. City of St.
Louis, 314 Mo. 288, 284 S.W. 482, 486; Orr v. Doubleday,
Page & Co., 157 N.Y.S. 1009, 1012, 172 App.Div. 96. The
word "extend" as used in a lease does not necessarily
mean the same, as "renew," but context may show intent
that the words be given a similar meaning. Candler v.
Smyth, 168 Ga. 276, 147 S.E. 552, 554.
To extend a street means to prolong and continue it in
the direction in which it already points, but does not
include deflecting it from the course of the existing portion. In re Charlotte St., 23 Pa. 288; Seattle & M. Ry. Co.
v. State, 7 Wash. 150, 34 P. 551, 22 L.R.A. 217.
or the usufruct thereof. When the debtor is cotenant with others, it is necessary that a partition
should first be made. It is confined, in the first
place, to the lands (if any) that are in hypothêque,
but afterwards extends to the lands not in hypothêque. Moreover, the debt must be of a liquidated amount. Brown.
EXPULSION. A putting or driving out. Ejectment; banishment; a cutting off from the privileges of an institution or society permanently.
John B. Stetson University v. Hunt, 88 Fla. 510,
102 So. 637, 639. The act of depriving a member
of a corporation, legislative body, assembly, society, commercial organization, etc., of his membership in the same, by a legal vote of the body
itself, for breach of duty, improper conduct, or
other sufficient cause. New York Protective
Ass'n v. McGrath, Super.Ct., 5 N.Y.S. 10; Palmetto Lodge v. Hubbell, 2 Strob., S.C., 462, 49 Am.
Dec. 604. Also, in the law of torts and of landlord and tenant, an eviction or forcible putting
out. See Expel.
"Separation" from a church by reason of a schism is
not like "expulsion" or "excommunication," which terms
necessarily involve involuntary and compulsory separation
of members. Lindstrom v. Tell, 131 Minn. 203, 154 N.W.
969, 971.
EXPUNGE. Means to destroy or obliterate; it
implies not a legal act, but a physical annihilation.
Andrews v. Police Court of City of Stockton, Cal.
App., 123 P.2d 128, 129. To blot out; to efface designedly; to obliterate; to strike out wholly.
Webster. See Cancel.
English Practice
To value the lands or tenements of a person
bound by a statute or recognizance which has become forfeited, to their full extended value. 3
Bl.Comm. 420; Fitzh.Nat.Brev. 131. To execute
the writ of extent or extendi facias (q. v.). 2
Tidd, Pr. 1043, 1044.
EXPURGATION. The act of purging or cleansing, as where a book is published without its obscene passages.
EXPURGATOR. One who corrects by expurging.
EXQUIESTOR. In Roman law. One who had
filled the office of qucestor. A title given to Tribonian. Inst. proem. § 3. Used only in the ablative case, (exqucestore.)
EXROGARE. (From ex, from, and rogare, to
pass a law.) In Roman law. To take something
from an old law by a new law. Tayl. Civil Law,
155.
EXTEND. Lends itself to .great variety of meanings, which must in each case be gathered from
context. Blouch v. Stevens, 106 N.J.L. 488, 150 A.
581, 583.
It may mean to broaden the application or action of,
Meyering v. Miller, 30 Mo. 885, 51 S.W.2d 65, 66; to carry
forward, Loeffier v. Federal Supply Co., 187 Okl. 373, 102
P.2d 862, 864; to cause to reach or continue as from point
to point, Henderson Development Co. v. United Fuel Gas
Co., 121 W.Va. 284, 3 S.E.2d 217, 219; to expand, enlarge,
prolong, lengthen, widen, carry out, further than the original limit; as, to extend the time for filing an answer, to
extend a lease, term of office, charter, railroad track, etc.,
State v. Armstrong, 31 N.M. 220, 243 P. 333, 345; LesserGoldman Cotton Co. v. Cache River Drainage Dist., 174
Ark. 160, 294 S.W. 711, 713; State v. Scott, 113 Mo. 559, 20
S.W. 1076; Moers v. Reading, 21 Pa. 201; Keetch v. Cordner, 90 Utah 423, 62 P.2d 273, 277, 108 A.L.R. 52; to give as
a privilege, Tantum v. Keller, 95 N.J.Eq. 466, 123 A. 299,
300, 301, 302; to give wider range, State ex rel. Berthot v.
Gallatin County High School Dist., 102 Mont. 356, 58 P.2d
Taxation
Extending a tax consists in adding to the assessment roll the precise amount due from each
person whose name appears thereon. "The subjects for taxation having been properly listed,
and a basis for apportionment established, nothing will remain to fix a definite liability but to
extend upon the list or roll the several proportionate amounts, as a charge against the several
taxables." Cooley, Tax'n, 2d Ed., 423.
EXTENDED. A lengthening out of time previously fixed and not the arbitrary setting of a new
date. In re Parent, D.C.N.H., 30 F.Supp. 943, 945,
Stretched, spread, or drawn out. Rathbone v.
State Board of Land Com'rs of Montana, 100
Mont. 109, 47 P.2d 47, 49.
As used in constitutional inhibition against extending
provisions of statute by reference to its title only, has reference to an attempt to add something to text of pre-existing law. Hollis & Co. v. McCarroll, 200 Ark. 523, 140
S. W.2d 420, 422.
EXTENDED INSURANCE. An option to use
dividend to procure extended insurance is one to
procure extension of term of insurance from date
693
EXTENDED
to which premiums have been paid, without further payment. Williams v. Union Central Life Ins.
Co., Tex., 291 U.S. 170, 54 S.Ct. 348, 78 L.Ed. 711,
92 A.L.R. 693.
EXTENDED LEASE. An "extended lease" is
merely enlarged upon all the terms and conditions of the instrument, while a "renewed lease"
is a new lease. Rathbone v. State Board of Land
Com'rs of Montana, 100 Mont. 109, 47 P.2d 47, 49.
EXTENDI FACIAS. Lat. You cause to be extended. In English practice. The name of a writ of
execution, (derived from its two emphatic words;)
more commonly called an "extent." 2 Tidd, Pr.
1043; 4 Steph.Comm. 43.
EXTENDING as used in agreement to extend
railroad siding at point of termination signified
making connection with. Blouch v. Stevens, 106
N.J.L. 488, 150 A. 581, 582.
EXTENSION. A part constituting an addition or
enlargement, as an annex, as to build on an extension to a house. Northwestern Light & Power
Co. v. Town of Grundy Center, 220 Iowa 108, 261
N.W. 604. Addition of existing facilities. People
ex rel. Anderson v. Baltimore & 0. S. W. R. Co.,
359 Ill. 301, 194 N.E. 568, 569. Enlargement of
main body; addition of something smaller than
that to which it is attached; to cause to reach or
continue as from point to point; to lengthen or
prolong. City of Lancaster v. Public Service Commission, 120 Pa.Super. 597, 182 A. 781, 783. That
property of a body by which it occupies a portion
of space. Newark Stove Co. v. Gray & Dudley
Co., D.C.Tenn., 39 F.Supp. 992, 993.
Renewal of paper is not a loan but an extension of time
for payment. McRoberts v. Spaulding, D.C.Iowa, 32 F.2d
315, 318.
The word "extension" ordinarily implies the existence
of something to be extended. State v. Graves, 352 Mo.
1102, 182 S.W.2d 46, 51.
Bankruptcy
An extension proposal is an agreement on part of creditors that they will extend time within which their claims
are probably to be paid, In full as to secured creditors, on
terms proposed by debtor and approved by court. Heldstab v. Equitable Life Assur. Soc. of United States, C.C.A.
Kan., 91 F.2d 655, 658.
"Extension" under Bankruptcy Act is proceeding wherein
debtor merely obtains extension of time within which to
pay in full. In re Thompson, D.C.Va., 51 F.Supp. 12, 14.
Proposal under which debts which were not settled in
full but were merely extended in time for ultimate payment in full was an "extension proposal". Mullican v.
Texas Land & Mortgage Co., C.C.A.Tex., 117 F.2d 576, 578.
Carrier's Lines
Tracks over which there are to be train movements in
the sense that such movements are a part of the actual
transportation haul from shipper to the oonsignee. Missouri Pac. R. Co. v. Chicago Great Western R. Co., 137
Kan. 217, 19 P.2d 484, 489.
"Renewal" and "extension," as used in leases with reference to options for renewal or for extension, are synonymous. Economy Stores v. Moran, 178 Miss. 62, 172 So. 865,
867.
The distinction between "extension" and "renewal" of
lease is chiefly that, in the case of renewal, a new lease is
requisite, while, in the case of extension, the same lease
continues in force during additional period upon performance of stipulated act. Carrano v. Shoor, 118 Conn. 86, 171
A. 17, 20.
The word "extension," when used in its proper and usual
sense in connection with a lease, means a prolongation Di
the previous leasehold estate. Talbot v. Rednalloh Co., 283
Mass. 225, 186 N.E. 273, 275.
Mercantile Law
An allowance of additional time for the payment of
debts. An agreement between a debtor and his creditors,
by which they allow him further time for the payment of
his liabilities. A creditor's indulgence by giving a debtor
further time to pay an existing debt. State v. Mestayer,
144 La. 601, 80 So. 891, 892. Among the French, a similar
agreement is known by the name of attermoiement. Merlin, Repert. mot Attermoiement.
Patent Law
An extension of the life of a patent for an additional
period of seven years, formerly allowed by law in the
United States, upon proof being made that the inventor had
not succeeded in obtaining a reasonable remuneration from
his patent-right. This is no longer allowed, except as to
designs. See Rev.St.U.S. § 4924.
EXTENSION OF PAYMENT.
To constitute "extension of payment" of obligation which would release sureties, there must be agreement between
obligor and obligee supported by consideration by
which obligee has precluded himself from taking
action against obligor during period of extension.
O'Banion v. Willis, 14 La.App. 638, 129 So. 440, 441.
EXTENSION OR RENEWAL OF NOTE.
Takes
place when parties agree upon valuable consideration for maturity of debt on day subsequent to that
provided in original contract. Elk Horn Bank &
Trust Co. v. Spraggins, 182 Ark. 27, 30 S.W.2d 858,
859.
EXTENSIVE. Widely extended in space, time, or
scope; great or wide or capable of being extended.
American Cannel Coal Co. v. Indiana Cotton Mills,
78 Ind.App. 115, 134 N.E. 891, 893.
EXTENSIVE RAINFALL is not same as "extraordinary rainfall," for which damages could not
be recovered; word "extensive" being applicable
to area embraced in circumference of particular
rainfall, but not implying necessarily rainfall out
of ordinary. Johnson v. Ratliff, 233 Ky. 187, 25
S.W.2d 355, 356. See Extraordinary Rainfall.
EXTENSORES. In old English law. Extenders
or appraisers.
Lease
The name of certain officers appointed to appraise and
divide or apportion lands. It was their duty to make a
survey, schedule, or inventory of the lands, to lay them out
under certain heads, and then to ascertain the value of
each, as preparatory to the division or partition. Bract.
fols. 72b, 75; Britt. c. 71.
An option for renewal implies giving of new lease on
same terms as old lease, while an option for extension contemplates a continuance of old lease for a further period.
Mutual Paper Co. v. Hoague-Sprague Corporation, 297
Mass. 294, 8 N.E.2d 802, 806.
EXTENT. Amount. Cox v. State Industrial Accident Commission, 121 P.2d 919, 921, 168 Or.
508, 23 P.2d 800, 159 A.L.R. 899.
694
EXTINCTO
English Practice
A writ of execution issuing from the exchequer upon a
debt due the crown, or upon a debt due a private person,
if upon recognizance or statute merchant or staple, by
which the sheriff is directed to appraise the debtor's lands,
and, instead of selling them, to set them off to the creditor
for a term during which the rental will satisfy the judgment. Hackett v. Amsden, 56 Vt. 201; Nason v. Fowler, 70
N.H. 291, 47 A. 263. It is so called because the sheriff is
to cause the lands to be appraised at their full extended
value before he delivers them to the plaintiff. Fitzh.N.B.
131. The term is sometimes used in the various states of
the United States to denote writs which give the creditor
possession of the debtor's lands for a limited time till the
debt be paid. Roberts v. Whiting, 16 Mass. 186.
Scotch Practice
The value or valuation of lands. Bell.
The rents, profits, and issues of lands. Skene.
For "Manorial Extent," see that title.
EXTENT IN AID. That kind of extent which issues at the instance and for the benefit of a debtor
to the crown, for the recovery of a debt due to himself. 2 Tidd, Pr. 1045; 4 Steph.Comm. 47. This
writ was much abused, owing to some peculiar
privileges possessed by crown-debtors, and its use
was regulated by Stat. 57 Geo. III. c. 117. See 3
Bla.Comm. 419. The writ used by a debtor of the
king against his debtor to enforce the right of
preference given to him because of his indebtedness to the king. United States Fidelity & Guaranty Co. v. Carter, 161 Va. 381, 170 S.E. 764, 768,
'90 A.L.R. 191.
EXTENT IN CHIEF. A summary process by
which the king's action was commenced against his
debtor and his body, personal property (tangible
and intangible), and lands at once seized for the
satisfaction of the king's debt. United States Fidelity & Guaranty Co, v. Carter, 161 Va. 381, 170
S.E. 764, 768, 90 A.L.R. 191. The principal kind of
extent, issuing at the suit of the crown, for the recovery of the crown's debt. 4 Steph.Comm. 47.
An adverse proceeding by the king, for the recovery of his own debt. 2 Tidd, Pr. 1045.
EXTENT OF SUCH PAYMENT. Under statute
extending right of subrogation to Federal Deposit
Insurance Corporation, phrase "to the extent of
such payment" is equivalent to term "pro tanto"
or words "as to the portion of the deposit paid".
Federal Deposit Ins. Corporation v. Citizens State
Bank of Niangua, C.C.A.Mo., 130 F.2d 102, 103.
EXTENTA MANERH. (The extent or survey of
a manor.) The title of a statute passed 4 Edw. I.
St. 1; being a sort of direction for making a survey or terrier of a manor, and all its appendages.
2 Reeve, Eng.Law, 140.
EXTENUATE. To lessen; to palliate; to mitigate. Connell v. State, 46 Tex.Cr.R. 259, 81 S.W.
748.
EXTENUATING CIRCUMSTANCES. Such as
render a delict or crime less aggravated, heinous,
or reprehensible than it would otherwise be, or
tend to palliate or lessen its guilt. Such circumstances may ordinarily be shown in order to reduce the punishment or damages.
EXTENUATION. That which renders a crime or
tort less heinous than i would be without it. It is
opposed to aggravation.
EXTERIOR. As used in policy means on the outside, external, pertaining to the outside part,
Northwestern Casualty & Surety Co. v. Barzune,
Tex.Civ.App., 42 S.W.2d 100, 103; the surface outside, Jackson Steam Laundry v. JEtna Casualty &
Surety Co., 156 Miss. 649, 126 So. 478, 480.
The phrase "exterior of the building" as used
in a lease of a building adjacent to another building, each having its own wall, the two against
each other forming a solid double wall, means coextensive with its external parts and including the
four walls. B. Siegel . Co. v. Codd, 183 Mich. 145,
149 N.W. 1015, 1017.
EXTERNAL. Apparent, outward, visible from
the outside, capable of being perceived. Toliver
v. Massachusetts Bonding & Insurance Co., Mo.
App., 47 S.W.2d 140, 141. Outward; exterior; relating to the outside, as of the body; really being
without; acting from without, as the external
surface of a body; and outwardly; perceptible,
visible; physical or corporeal; as distinguished
from mental or moral. Provident Life & Accident
Ins. Co. v. Campbell, 18 Tenn.App. 452, 79 S.W.2d
292, 296.
In double indemnity clause of life policy, the term
"external" applies to the force or means and not to the
injury. Hanna v. Rio Grande Nat. Life Ins. Co., Tex.Civ.
App., 181 S.W.2d 908, 911.
EXTERNAL, VIOLENT AND ACCIDENTAL
MEANS. Death through "external, violent and accidental means" necessarily implies that death did
not result indirectly from disease or bodily infirmity. Mutual Life Ins. Co. of New York v. Hassing,
C.C.A.10, 134 F.2d 714, 716.
EXTERRITORIALITY. The privilege of those
persons (such as foreign ministers) who, though
temporarily resident within a state, are not subject to the operation of its laws. The exemption
from the operation of the ordinary laws of the
state accorded to foreign monarchs temporarily
within the state and their retinue, to diplomatic
agents and the members of their household, to
consuls in non-Christian states, and to foreign
men of war in port. 1 Opp. 460-469. See Capitulation; Extraterritoriality.
EXTERUS. Lat. A foreigner or alien; one born
abroad. The opposite of civis.
EXTERUS NON .HABET TERRAS. An alien
holds no lands. Tray.Lat.Max. 203.
EXTINCT. Extinguished. A rent is said to be
extinguished when it is destroyed and put out.
Co.Litt. 147b. See Extinguishment.
EXTINCTO SUBJECTO, TOLLITUR ADJUNCTUM. When the subject [or substance] is extinguished, the incident [or adjunct] ceases. Thus,
when the business for which a partnership has
been formed is completed, or brought to an end,
695
EXTINGUISH
the partnership itself ceases. Inst. 3, 26, 6; 3
Kent, Comm. 52, note; Griswold v. Waddington,
16 Johns., N.Y., 438, 492.
tates, by confirmation, by grant, by release, and by
surrender. 1 Crabb, Real Prop. pp. 210-213, § 209.
EXTINGUISHMENT OF WAYS. This is usually
effected by unity of possession. As if a man have
a way over the close of another, and he purchase
that close, the way is extinguished. 1 Crabb, Real
Prop. p. 341,. § 384; 2 Washb.Real Prop.
EXTINGUISH. To put an end to. Onondaga Water Service Corporation v. Crown Mills, Inc., 132
Misc. 848, 230 N.Y.S. 691, 698. To put out, quench,
stifle, as to extinguish a fire or flame. Gaily v.
Wynne, 96 Cal.App. 145, 273 P. 825, 826.
EXTIRPATION. In English law. A species of destruction or waste, analogous to estrepement. See
Estrepement.
EXTINGUISHMENT. The destruction or cancellation of a right, power, contract, or estate. The
annihilation of a collateral thing or subject in the
subject itself out of which it is derived. Prest.
Merg. 9. For the distinction between an extinguishment and passing a right, see 2 Shars.Bl.
Comm. 325, note.
EXTIRPATIONE. A judicial writ, either before
or after judgment, that lay against a person who,
when a verdict was found against him for land,
etc., maliciously overthrew any house or extirpated any trees upon it. Reg.Jud. 13, 56.
"Extinguishment" is sometimes confounded with "merger," though there is a clear distinction between them.
"Merger" is only a mode of extinguishment, and applies to
estates only under particular circumstances ; but "extinguishment" is a term of general application to rights, as
well as estates. 2 Crabb, Real Prop. p. 367, § 1487. "Extinguishment" connotes the end of a thing, precluding the
existence of future life therein ; in "mergers" there is a
carrying on of the substance of the thing, except that it is
merged into and becomes a part of a separate thing with a
new identity. McRoberts v. McRoberts, 177 Okl. 156, 57
P.2d 1175, 1177.
EXTOCARE. In old records. To grub woodland,
and reduce it to arable or meadow; "to stock up."
Cowell.
EXTORSIVELY. A technical word used in indictments for extortion.
It is a sufficient averment of a corrupt intent, in an
indictment for extortion, to allege that the defendant
"extorsively" took the unlawful fee. Leeman v. State, 35
Ark. 438, 37 Am.Rep. 44. When a person is charged with
extorsively taking, the very import of the word shows that
he is not acquiring possession of his own, 4 Cox, Cr.Cas.
387. In North Carolina the crime may be charged without
using this word, State v. Dickens, 2 N.C. 406.
EXTINGUISHMENT OF COMMON. Loss of the
right to have common. This may happen from
various causes. 2 Steph.Com. 41; Co.Litt. 280; 1
Bacon, Abr. 628; Cro.Eliz. 594.
EXTORT. To compel or coerce, as a confession
or information by any means serving to overcome
one's power of resistance, or making the confession or admission involuntary. Sutton v. Commonwealth, 207 Ky. 597, 269 S.W. 754, 757.
EXTINGUISHMENT OF COPYHOLD. In English
law. A copyhold is said to be extinguished when
the freehold and copyhold interests unite in the
same person and in the same right, which may be
either by the copyhold interest coming to the freehold or by the freehold interest coming to the
copyhold. 1 Crabb, Real Prop. p. 670, § 864; Hutt.
81; Cro.Eliz. 21; Wms.R.P. 287.
To gain by wrongful methods, to obtain In am
unlawful manner, to compel payments by means
of threats of injury to person, property, or reputation. McKenzie v. State, 113 Neb. 576, 204 N.W.
60, 61; State v. Richards, 97 Wash. 587, 167 P.
47, 48. To take from unlawfully; to exact something wrongfully by threats or putting in fear.
State v. Adams, Del., 106 A. 287, 288, 7 Boyce, 335.
See Extortion.
To wrest from, to exact, to take under a claim
of protection. Commonwealth v. Neubauer, 142
Pa.Super. 528, 16 A.2d 450, 452.
EXTINGUISHMENT OF DEBTS. This takes
place by payment; by accord and satisfaction;
by novation, or the substitution of a new debtor;
by merger, when the creditor recovers a judgment or accepts a security of a higher nature than
the original obligation; by a release; by the marriage of a feme sole creditor with the debtor, or
of an obligee with one of two joint obligors; and
where one of the parties, debtor or creditor, makes
the other his executor.
EXTINGUISHMENT OF LEGACY. This occurs
in case the identical thing bequeathed is not in
existence, or has been disposed of so that it does
not form part of the testator's estate, at the time
of his death. Welch v. Welch, 147 Miss. 728, 113
So. 197, 198. See Ademption.
EXTINGUISHMENT OF LIEN. Discharge by
operation of law. Schreiber v. Cook County, 388
Ill. 297, 58 N.E.2d 40, 44, 155 A.L.R. 1162.
EXTINGUISHMENT OF RENT. If a person have
a yearly rent of lands, and afterwards purchase
those lands, so that he has as good an estate in
the land as in the rent, the rent is extinguished.
Termes de la Ley; Cowell; Co.Litt. 147. Rent
may also be extinguished by conjunction of es-
The natural meaning of the word "extort" is to obtain
money or other valuable thing either by compulsion, by
actual force, or by the force of motives applied to the will,
and often more overpowering and irresistible than physical
force. Com. v. O'Brien, 12 Cush., Mass., 90.
EXTORTIO EST CRIMEN QUANDO QUIS COLORE OFFICH EXTORQUET QUOD NON EST
DEBITUM, VEL SUPRA DEBITUIVI, VEL ANTE
TEMPUS QUOD EST DEBITUM. 10 Coke, 102.
Extortion is a crime when, by color of office, any
person extorts that which is not due, or more than
is due, or before the time when it is due.
EXTORTION. Unlawful obtaining of money from
another. People v. Parkinson, 181 Misc. 603, 41
N.Y.S.2d 331, 334.
It has also been defined as corrupt demanding or receiving by a person in office of a fee for services which should
be performed gratuitously; or, where compensation is permissible, of a larger fee than the law justifies, or a fee not
696
EXTRA
due, 2 Bish.Crim.Law, § 390; exaction of .money by reason
of oppressive conditions or circumstances, People v. Weller, 237 N.Y. 316, 143 N.E. 205, 208, 38 A.L.R. 613; obtaining of property from another, with his consent, induced by
wrongful use of force or fear, or under color of official
right. And see State v. Logan, 104 La. 760, 29 So. 336; In
re Rempfer, 51 S.D. 393, 216 N.W. 355, 359, 55 A.L.R. 1346;
Lee v. State, 16 Ariz. 291, 145 P. 244, 246, Ann.Cas.1917B,
131. Obtaining of property of another by threats to injure
him and to destroy his property, State v. Phillips, 62 Idaho
656, 115 P.2d 418, 420. Taking or obtaining of anything
from another by means of illegal compulsion or oppressive
exaction, Daniels v. U. S., C.C.A.Cal., 17 F.2d 339, 342;
whether by an officer or otherwise, United States v. Dunkley, D.C.Cal., 235 F. 1000, 1001. Unlawful taking by any
officer, by color of his office, of any money or thing of value
that is not due to him, or more than is due, or before it is
due, 4 Bla.Comm. 141; Com. v. Saulsbury, 152 Pa. 554, 25
A. 610; 1 Russ.Cr.* 144; 2 Bish.Cr.L. 390; U. S. v. Deaver, D.C.N.C., 14 F. 595; Bush v. State, 19 Ariz. 195, 168
P. 508, 509. Wrongful exaction of money or other valuable
thing, either by compulsion, actual force, or by force of
motives applied at will, Commonwealth v. Donoghue, 250
Ky. 343, 63 S.W.2d 3, 89 A.L.R. 819.
A taking under color of office is of essence of offense. La
Tour v. Stone, 139 Fla. 681, 190 So. 704, 709, 710.
At common law, any oppression by color or pretense of
right, and particularly and technically the exaction or
unlawful taking by an officer of money or thing of value,
by color of his office, either when none at all is due, or not
so much is due, or when it is not yet due. Preston v.
Bacon, 4 Conn. 480. See People v. Barondess, 16 N.Y.S.
436, 61 Hun, 571; Murray v. State, 125 Tex.Cr.R. 252, 67
S.W.2d 274, 275; State v. Anderson, 66 N.D. 522, 267 N.W.
121, 123; Whart.Cr.L. 833.
Term applies to persons who exact money either for the
performance of a duty, the prevention of injury, or the
exercise of influence, and covers the obtaining of money or
other property by operating on fear or credulity, or by
promise to conceal the crimes of others. Commonwealth v.
Mann, 111 Pa.Super. 371, 170 A. 381, 382.
Term in comprehensive or general sense signifies any
oppression under color of right, and in strict or technical
sense signifies unlawful taking by any officer, under color
of office, of any money or thing of value not due him, more
than is due, or before it is due. State v. Barts, 132 N.J.L.
74, 38 A.2d 838, 843, 844, 848; State v. Vallee, 136 Me. 432,
12 A.2d 421.
To constitute "extortion," money or other thing of value
must have been wilfully and corruptly received. La Tour
v. Stone, 139 Fla. 681, 190 So. 709, 710.
To constitute "extortion," the wrongful use of fear must
be the operating cause producing consent. People v. Biggs,
178 Cal. 79, 172 P. 152, 153.
The distinction between "bribery" and "extortion" seems
to be this: the former offense consists in the offering a
present, or receiving one, if offered; the latter, in demanding a fee or present, by color of office. Jacob.
EXTRA COMPENSATION. Within constitutional provision prohibiting Legislature from granting
extra compensation to contractor, is compensation over and above that fixed by contract for
agreed work, and is in nature of gratuity. Weston v. State, 262 N.Y. 46, 186 N.E. 197, 200, 88 A.L.
R. 1219.
For the distinction between "extortion" and
"exaction," see Exaction.
EXTRA PRIESENTIAM MARITI. Out of her
husband's presence.
EXTRA. A Latin preposition, occurring in many
legal phrases, and meaning beyond, except, without, out of, outside.
EXTRA QUATUOR MARIA. Beyond the four
seas; out of the kingdom of England. 1 Bl.
Comm. 457.
Work outside contract, performed by subcontractor was
properly claimed as an "extra." United States ex rel.
Park L. Davis Co. v. Matthew Cummings Co., D.C.Mass.,
27 F.Supp. 405, 407, 408.
EXTRA REGNUM. Out of the realm. 7 Coke,
16a; 2 Kent, Comm. 42, note.
EXTRA ALLOWANCE. In New York practice.
A sum in addition to costs, which may, in the discretion of the court, be allowed to the successful
party in cases of unusual difficulty. See Hascall
v. King, 54 App.Div. 441, 66 N.Y.S. 1112.
EXTRA SERVICES, when used with reference to
officers, means services incident to the office in
question, but for which compensation has not
been provided by law. Miami County v. Blake, 21
Ind. 32.
EXTRA COMMERCIA. Property once dedicated
to public use is "extra commercia". J. B. McCrary
Co. v. Town of Winnfield, D.C.La., 40 F.Supp. 427,
435.
EXTRA TERRITORIUM. Beyond or without the
territory. 6 Bin. 353; 2 Kent, Comm. 407. Outside the territorial limits of a state. Milne v.
Moreton, 6 Binn., Pa., 353, 6 Am.Dec. 466.
Under statutes providing for extra compensation to customs inspectors payment made by licensees to Collector at
rates fixed by Secretary of the Treasury constitute "extra
compensation" over and above the annual salary, and not
a payment from licensees. United States v. Myers, Ct.C1.,
320 U.S. 561, 64 S.Ct. 337, 341, 88 L.Ed. 312.
EXTRA COSTS. In English practice. Those
charges which do not appear upon the face of
the proceedings, such as witnesses' expenses, fees
to counsel, attendances, court fees, etc., an affidavit of which must be made, to warrant the master
in allowing them upon taxation of costs. Wharton.
EXTRA—DOTAL PROPERTY, In Louisiana this
term is used to designate that property which
forms no part of the dowry of a woman, and
which is also called "paraphernal property." Civ.
Code La. art. 2335. Fleitas v. Richardson, 147
U.S. 550, 13 S.Ct. 495, 37 L.Ed. 276.
EXTRA FEODUM. Out of his fee; out of the
seigniory, or not holden of him that claims it.
Co.Litt. lb; Reg.Orig. 97b.
EXTRA JUDICIUM. Extrajudicial; out of the
proper cause; out of court; beyond the jurisdiction. See Extrajudicial.
EXTRA JUS. Beyond the law; more than the
law requires. In jure, vel extra jus. Bract. fol.
169b.
EXTRA LEGEM. Out of the law; out of the protection of the law.
EXTRA LEGEM POSITUS EST CIVILITER
MORTUUS. Co. Litt. 130. He who is placed out
of the law is civilly dead. A bankrupt is, as it
were, civilly dead. International Bank v. Sherman, 101 U.S. 406, 25 L.Ed. 866.
697
EXTRA
EXTRA TERRITORIUM JUS DICENTI IMPUNE
NON PARETUR. One who exercises jurisdiction
out of his territory is not obeyed with impunity.
Dig. 2, 1, 20; Branch, Princ.; 10 Coke, 77; Story,
Confl.Laws, § 539. He who exercises judicial authority beyond his proper limits cannot be obeyed
with safety.
EXTRA VIAM. Outside the way. Where the defendant in trespass pleaded a right of way in justification, and the replication alleged that the trespass was committed outside the limits of the way
claimed, these were the technical words to be used. 16 East, 343, 349.
EXTRA VIRES. Beyond powers. See Ultra
Vires.
EXTRA WORK. As used in connection with construction contract, means work done not required
in performance of the contract, something done or
furnished in addition to or in excess of the requirement of the contract. Kansas City Bridge
Co. v. State, 61 S.D. 580, 250 N.W. 343; work entirely outside and independent of contract—something not required or contemplated in its performance. Bradshaw v. Wolfe City, Tex.Civ.App., 3
S.W.2d 527, 530; while additional work on the
other hand, is usually work which results from a
change or alteration in plans concerning work
which has to be done under a contract. De Martini v. Elade Realty Corp., Co.Ct., 52 N.Y.S.2d 487,
489; or such work as may fairly be presumed to
arise in the construction, and is within the contract, although not included in the plans and specifications. Wilson v. Salt Lake City, 52 Utah,
506, 174 P. 847, 850.
But in a sewer construction contract providing that the
city engineer might make such changes in the lines, grades,
and dimensions which do not entail any extra expense to
the contractor, the word "extra" was deemed equivalent to
additional work which was required in the performance of
the contract, and not necessary to such performance in the
sense that the contract could not have been carried out
without it, but necessary in the sense that by means of it
the contract Could be more conveniently and beneficially
performed in the interest of both parties thereto, and did
not include work arising out of and entirely independent of
the contract, something not required in its performance.
City of Richmond v. Burton, 115 Va. 206, 78 S.E. 560, 563.
See, also, Fetterolf v. S. & L. Const. Co., 161 N.Y.S. 549,
550, 175 App.Div. 177; McHugh v. City of Tacoma, 76
Wash. 127, 135 P. 1011, 1015.
Materials and labor not contemplated by the contract,
but which are required by changes in the plans and specifications made after the contract had been entered into, are
"extra work". Collins v. Hall, Tex.Civ.App., 161 S.W.2d
311, 314.
EXTRACT, v. To draw out or forth; to pull out
from a fixed position. Webster.
To "extract" ore within the meaning of a royalty provision in a mining lease contemplates not only the removal of
the ore from the mine and throwing it on a dump, but also
the separation of the ore from the dirt and refuse in which
it was found on the dump. Giersa v. Creech, Mo.App., 181
S. W. 588, 589.
EXTRACT, n. A portion or fragment of a writing. In Scotch law, the certified copy, by a clerk
of a court, of the proceedings in an action carried
on before the court, and of the judgment pronounced; containing also an order for execution
or proceedings thereupon. Jacob; Whishaw.
EXTRACTA CURLE. In old English law. The
issues or profits of holding a court, arising from
the customary fees, etc.
EXTRADITION. The surrender by one state to
another of an individual accused or convicted of
an offense outside its own territory and within
the territorial jurisdiction of the other, which, being competent to try and punish him, demands the
surrender. Waller v. Jordan, 58 Ariz. 169, 118 P.
2d 450, 451.
The surrender of a criminal by a foreign state to which
he has fled for refuge from prosecution to the state within
whose jurisdiction the crime was committed, upon the
demand of the latter state, in order that he may be dealt
with according to its laws. Extradition may be accorded
as a mere matter of comity, or may take place under treaty
stipulations between the two nations. It also obtains as
between the different states of the American Union. Terlinden v. Ames, 184 U.S. 270, 22 S.Ct. 484, 46 L. Ed. 534;
Fong Yue Ting v. U. S., 149 U.S. 698, 13 S.Ct. 1016, 37
L. Ed. 905.
Extradition between the states must be considered and
defined to be a political duty of imperfect obligation,
founded upon compact, and requiring each state to surrender one who, having violated the criminal laws of
another state, has fled from its justice, and is found in the
state from which he is demanded, on demand of the executive authority of the state from which he fled. Abbott.
—Extradition warrant. See Executive Warrant.
EXTRAHAZARDOUS. In the law of insurance.
Characterized or attended by circumstances or
conditions of special and unusual danger. Reynolds v. Insurance Co., 47 N.Y. 597; Russell v.
Insurance Co., 71 Iowa 69, 32 N.W. 95.
EXTRAHURA. In old English law. An animal
wandering or straying about, without an owner;
an estray. Spelman.
EXTRAJUDICIAL. That which is done, given,
or effected outside the course of regular judicial
proceedings; not founded upon, or unconnected
with, the action of a court of law; as extrajudicial
evidence, an extrajudicial oath.
That which, though done in the course of regular judicial proceedings, is unnecessary to such
proceedings, or interpolated, or beyond their
scope; as an extrajudicial opinion, (dictum.)
That which does not belong to the judge or
his jurisdiction, notwithstanding which he takes
cognizance of it.
EXTRAJUDICIAL CONFESSION. See Confession.
EXTRAJUDICIAL EVIDENCE is that which is
used to satisfy private persons as to facts requiring proof.
EXTRAJUDICIAL OATH. One taken not in the
course of judicial proceedings, or taken without
any authority of law, though taken formally before a proper person. State v. Scatena, 84 Minn.
281, 87 N.W. 764.
EXTRAJUDICIALLY. The testimony of an expert witness based upon information obtained "extrajudicially", which means in any other manner
698
EXTRAORDINARY
EXTRAORDINARY CARE. Synonymous with
greatest care, utmost care, highest degree of care.
Railroad Co. v. Baddeley, 54 Ill. 24, 5 Am.Rep. 71;
Railway Co. v. Causler, 97 Ala. 235, 12 So. 439;
Sorey v. Yazoo & M. V. R. Co., 17 La.App. 538, 136
So. 155, 158. See Care; Diligence; Negligence.
than from evidence given in court, is objectionable. State v. David, 222 N.C. 242, 22 S.E.2d 633,
640.
EXTRALATERAL RIGHT. In mining law. The
right of the owner of a mining claim duly located
on the public domain to follow, and mine, any vein
or lode the apex of which lies within the boundaries of his location on the surface, notwithstanding the course- of the vein on its dip or downward
direction may so far depart from the perpendicular as *to extend beyond the planes which would
be formed by the vertical extension downwards of
the side lines of his location. See Rev.Stat. U.S.
§ 2322, 30 U.S.C.A. § 26.
EXTRANEOUS EVIDENCE. With reference to
a contract, deed, will, or any writing, extraneous
evidence is such as is not furnished by the document itself, but is derived from outside sources;
the same as evidence aliunde. See, also, Aliunde.
EXTRAORDINARY CASE. "The extraordinary
motions or cases contemplated by the statute are
such as do not ordinarily occur in the transaction
of human affairs; as, when a man has been convicted of murder, and it afterwards appears that
the supposed deceased is still alive, or where one
is convicted on the testimony of a witness who is
subsequently found guilty of perjury in giving
that testimony, or where there has been some
providential cause, and cases of like character."
Herrington v. State, 32 Ga.App. 83, 123 S.E. 147,
148; Farmers' Union Warehouse of Metter v.
Boyd, 31 Ga.App. 104, 119 S.E. 542.
, The presence of an unexplored point of law determinative of litigation makes litigation an "extraordinary case" within statute authorizing additional allowance. National Bank of Far Rockaway v. City of New York, Sup., 46 N.Y.S.2d 153,
154.
EXTRANEOUS OFFENSE. Is one that is extra, beyond, or foreign to the offense for which
the party is on trial. Ridinger v. State, 146 Tex.
Cr.R. 286, 174 S.W.2d 319, 320.
EXTRAORDINARY DANGER. In the law of
master and servant, one not ordinarily incident to
the service. Piorkowski v. A. Leschen & Sons
Rope Co., 190 Mo.App. 597, 176 S.W. 258, 260.
EXTRANEUS.
Old English law. One foreign born; a foreigner. 7 Coke, 16.
Roman law. An heir not born in the family
of the testator. Those of a foreign state. The
same as alienus. Vicat; Du Cange.
EXTRAORDINARY DIVIDENDS. Cash disbursements by "wasting asset" companies are
apportioned as "extraordinary dividends" where
they represent, in part at least, distribution of
proceeds of capital assets. In re Nirdlinger's Estate, 327 Pa. 160, 193 A. 33.
"Extraordinary dividends" may assume unusual
form and amount, paid at irregular intervals from
accumulated surplus or earnings. In re Nirdlinger's Estate, 327 Pa. 160, 193 A. 33.
EXTRAMURAL. As applied to the powers of a
municipal corporation, its "extramural" powers
are those exercised outside the corporate limits,
as distinguished from "intramural" powers.
State v. Port of Astoria, 79 Or. 1, 154 P. 399, 404.
EXTRANEUS EST SUBDITUS QUI EXTRA TERRAM, i. e., POTESTATEM REGIS NATUS EST.
7 Coke, 16. A foreigner is a subject who is born
out of the territory, e., government of the king.
EXTRAORDINARY.
Out of the ordinary; exceeding the usual, average, or normal measure or
degree; beyond or out of the common order or
rule; not usual, regular, or of a customary kind;
remarkable; uncommon; rare. Puget Sound
Traction, Light & Power Co. v. Reynolds, D.C.
Wash., 223 F. 371, 378; Courtney v. Ocean Accident & Guaranty Corporation, 346 Mo. 703, 142 S.
W.2d 858, 861, 130 A.L.R. 234. The word is both
comprehensive and flexible in meaning. Zollman
v. Baltimore & 0. S. W. R. Co., 121 N.E. 135, 140,
70 Ind.App. 395.
Beyond or out of the common order or method; exceeding the ordinary degree; not ordinary; unusual; employed for an exceptional purpose or on a special occasion;
as a noun it is defined as, something extraordinary; especially, an extraordinary expense or allowance; specifically
(Eng.) any allowance made to troops beyond the customary
gross paid. State v. Rogers, 142 Kan. 841, 52 P.2d 1185,
1195.
EXTRAORDINARY AVERAGE.
A contribution
by all the parties concerned in a mercantile voyage, either as to the vessel or cargo, toward a loss
sustained by some of the parties in interest for
the benefit of all. Wilson v. Cross, 33 Cal. 69.
EXTRAORDINARY EXPENSES.
This term in a
constitutional provision that the state may incur
indebtedness for extraordinary expenses, means
other than ordinary expenses and such as are incurred by the state for the promotion of the general welfare, compelled by some unforeseen condition which is not regularly provided for by law,
such as flood, famine, fire, earthquake, pestilence,
war, or any other condition that will compel the
state to put forward its highest endeavors to protect the people, their property, liberty, or lives.
State v. Davis, 113 Kan. 4, 213 P. 171, 172.
EXTRAORDINARY FLOOD.
One of those unexplained visitations whose comings are not foreshadowed by the usual course of nature, Jensen v.
Buffalo Drainage Dist. of Cloud County, 148 Kan.
712, 84 P.2d 961, 965; and whose magnitude and
destructiveness could not have been anticipated
or provided against by the exercise of ordinary
foresight. Eikland v. Casey, C.C.A.Alaska, 266
F. 821, 823, 12 A.L.R. 179; Clements v. Phoenix
Utility Co., 119 Kan. 190, 237 P. 1062, 1065.
One of such unusual occurrence that it could not have
been foreseen by men of ordinary experience and prudence.
699
EXTRAORDINARY
Soules v. Northern Pac. R. Co., 34 N.D. 7, 157 N.W. 823,
830, L.R.A.1917A, 501. A flood is not extraordinary which
is such as residents of the neighborhood might expect from
their observation. City of Richmond v. Cheatwood, 130 Va.
76, 107 S.E. 830, 833.
EXTRAORDINARY GRAND JURY
is limited
in scope of its investigation which may not go beyond terms of executive proclamation, and examination of witness must be confined within those
terms, and must not be used as means of disclosing or intermeddling with extraneous matters.
People v. Doe, 247 App.Div. 324, 286 N.Y.S. 343.
EXTRAORDINARY HAZARD. If
hazards are increased by what other servants do, and injured
servant has no part in increasing them, they are
"extraordinary". Stone v. Howe, 92 N.H. 425, 32
A.2d 484, 487.
EXTRAORDINARY MOTIONS FOR NEW
TRIAL are such as do not ordinarily occur.
King v. State, 174 Ga. 432, 163 S.E. 168, 171.
EXTRAORDINARY OBSOLESCENCE. An extensive supersession of property used for transmission or generation of power or instrumentalities used for the transportation of passengers.
State ex rel. City of St. Louis v. Public Service
Commission, 341 Mo. 920, 110 S.W.2d 749, 775.
EXTRAORDINARY RAINFALL.
Not such a
downpour of rain as may not have been known to
occur, but only such rainfall that is so unusual
and extraordinary that men of ordinary prudence
-vould not have anticipated and provided for.
City of Portsmouth v. Weiss, 145 Va. 94, 133 S.E.
781, 787. Cf. Extensive Rainfall.
EXTRAORDINARY REMEDIES. The
writs of
mandamus, quo warranto, habeas corpus, and
some others are sotnetimes called "extraordinary
remedies," in contradistinction to the ordinary
remedy by action. Receivership is also said to be
an. "extraordinary remedy." Prudential Securities Co. v. Three Forks, H. & M. V. R. Co., 49
Mont. 567, 144 P. 158, 159.
EXTRAORDINARY REPAIRS.
Within the
meaning of a lease, such as • are made necessary
by some unusual or unforeseen occurrence which
does not destroy the building but merely renders
it less suited to the use for which it was intended.
Nixon v. Gammon, 191 Ky. 175, 229 S.W. 75, 77;
Courtney v. Ocean Accident & Guaranty Corporation, 346 Mo. 703, 142 S.W.2d 858, 861, 130 A.L.R.
234.
EXTRAORDINARY RISK.
The expression is
generally used to describe risks arising from the
negligence of the master. Tenney v. Baird Machine Co., 87 Conn. 119, 87 A. 352, 354; Royal Collieries Co. v. Wells, 210 Ky. 600, 276 S.W. 515, 518.
An "extraordinary risk" is one lying outside of
the sphere of the normal, arising out of conditions not usual in the master's business. Brazeale
v. Piedmont Mfg. Co., 184 S.C. 471, 193 S.E. 39,
43. It is one which is not normally and necessarily incident to the employment. Pollard v.
Weeks, 60 Ga.App. 664, 4 S.E.2d 722, 727. It is
one which is not naturally incident to occupation
and grows out of future of employer to furnish
safe place to work and proper and safe appliances
and tools for work. Snow v. Texas & P. Ry. Co.,
La.App., 166 So. 200, 203. It is one which may be
obviated by the exercise of reasonable care by
the employer. Wheeler v. Chicago & W. I. R. Co.,
267 Ill. 306, 108 N.E. 330, 336; Louisiana Ry. &
Na y . Co. of Texas v. Disheroon, Tex.Civ.App., 295
S.W. 250, 252. It is a risk which is only indirectly
connected with the employment. Emerick v. Slaronian Roman Greek Catholic Union, 93 N.J.L.
282, 108 A. 223.
As respects assumption of risks, an "extraordinary risk"
is not one which is uncommon or unusual in the sense that
it is rare, but is one which arises out of unusual conditions
not resulting in the ordinary course of business, as by reason of the master's negligence, Leyba v. Albuquerque &
Cerrillos Coal Co., 22 N.M. 455, 164 P. 823, 825; Houston
Lighting & Power Co., 1905 v. Conley, Tex.Civ.App., 171
S. W. 561, 563; it is a risk arising from the master's negligence, Simowitz v. Register, 60 Ga.App. 180, 3 S.E.2d 231,
233; it is a risk which may be obviated by exercise of reasonable care on master's part. Tyner v. Atlantic Coast
Line R. Co., 149 S.C. 89, 146 S.E. 663, 670. A servant does
not assume "extraordinary risks" unless they are known
to and appreciated by him, or are so obvious that ordinarily prudent person under circumstances would have
observed and appreciated them, Brazeale v. Piedmont Mfg.
Co., 184 S.C. 471, 193 S.E. 39, 43; unless they are known
or obvious. Pollard v. Weeks, 60 Ga.App. 664, 4 S.E.2d 722,
727. If injury results from master's breach of duty of due
care the risk is "extraordinary" and is assumed only if
servant knew or ought to have known of dangerous condition and comprehended it or must be taken to have known
of and comprehended it. Stone v. Howe, 92 N.H. 425, 32
A.2d 484, 486.
Under Federal Employers' Liability Act, "extraordinary
risks" are risks not normally and necessarily incident to
employment, Southern Ry. Co. v. Blanton, 63 Ga.App. 93,
10 S.E.2d 430, 434; an employee is not treated as assuming
extraordinary risks arising from defects due to negligence.
of employer unless he has knowledge of them or danger is
so obvious that it would be appreciated by ordinarily prudent person, Snow v. Texas & P. Ry. Co., La.App., 166 So.
200, 203.
As applied to
the care and attention of an old and infirm person,
such services as are unusual, extra, or above those
generally required or to be anticipated in usual
course of things, not such services as are rendered
to an old and feeble person, even though sick,
which are not different from those usually required by such persons in similar circumstances. Allen v. Smith, 208 Ky. 207, 270 S.W. 782, 783.
EXTRAORDINARY SERVICES.
As used in statute authorizing allowance of additional
compensation to guardian, means services in addition to
guardian's usual or regular services. In re Gislason's
Estate, 73 N.D. 731, 19 N.W.2d 447, 451, 452.
EXTRAORDINARY STORM
is not necessarily
an unprecedented one, but one that happens so
rarely that it is unusual and not ordinarily to be
expected. Spitzer v. City of Waterbury, 113 Conn.
84, 154 A. 157, 160; Oklahoma City v. Evans, 173
Okl. 586, 50 P.2d 234, 238.
EXTRAPAROCHIAL.
Out of a parish; not
within the bounds or limits of any parish. 1 Bl.
Comm. 113, 284.
EXTRATERRITORIALITY. The extraterritorial
operation of laws; that is, their operation upon
persons, rights, or jural relations, existing beyond the limits of the enacting state, but still
700
EXTREMIS
amendable to its laws. A term used, especially
formerly, to express, in lieu of the word exterritonality (q. v.), the exemption from the obligation of the laws of a state granted to foreign diplomatic agents, warships, etc. Wheaton, § 224.
The term is used to indicate jurisdiction exercised
by a nation in other countries, by treaty, as, by
the United States in China or Egypt; or by its
own ministers or consuls in foreign lands. Crime
is said to be extraterritorial when committed in
a country other than that of the forum in which
the party is tried. See 2 Moore, Int.L.Dig.; U. S.
v. Lucas, D.C.Wash., 6 F.2d 327, 328.
EXTRAVAGANTES. In canon law. Those decretal epistles which were published after the
Clementines.
They were so called because at first they were not
digested or arranged with the other papal constitutions,
but seemed to be, as it were, detached from the canon law.
They continued to be called by the same name when they
were afterwards inserted in the body of the canon law.
The first extravagantes are those of Pope John XXII., successor of Clement V. The last collection was brought down
to the year 1483, and was called the "Common Extravagantes," notwithstanding that they were likewise incorporated with the rest of the canon law. Enc.Lond.
EXTREME. At the utmost point, edge, or border; most remote. Last; conclusive. Greatest,
highest, strongest, or the like. Immoderate; violent. Webster.
EXTREME AND REPEATED CRUELTY. Acts
of physical violence producing bodily harm.
Holmstedt v. Holmstedt, 383 Ill. 290, 49 N.E.2d 25,
29; physical acts of violence, bodily harm or suffering, or such acts as endanger life or limb, or
raise a reasonable apprehension of great bodily
harm, but does not include bad temper, petulance,
rude language, want of civil attentions, or angry
and abusive words. Moore v. Moore, 362 Ill. 177,
199 N.E. 98, 99.
EXTREME CARE. Such care as prudent man
would exercise in place of danger. Schlossstein
v. Bernstein, 293 Pa. 245, 142 A. 324, 327.
EXTREME CASE. An extreme case, in which
an injunction granted inadvertently or improvidently may be dissolved ex parte, means one in
which the injunction was manifestly granted improperly, and its continuation until hearing in due
course might cause great injury. Teacle v.
Hughes, 146 La. 195, 83 So. 457, 458.
EXTREME CRUELTY is condition of extreme
discomfort and wretchedness incapacitating
spouse to discharge duties or seriously endangering health. McKee v. McKee, 107 N.J.Eq. 1, 151
A. 620, 622. It is grave and serious misconduct
which defeats marriage relation. Kennedy v. Kennedy, 101 Fla. 239, 134 So. 201, 203.
Any habitual indulgence by one spouse, that causes mental torture, undermines the health, or tends to dethrone
reason of other, is sufficient to constitute "extreme
cruelty". Bergman v. Bergman, 145 Fla. 10, 199 So. 920,
922.
As respects constructive abandonment, "extreme cruelty"
per se by husband is conduct which law presumes to be
malicious, intended to force separation, and dangerous to
life or health of wife, or ncapacitates her from performing
her duties. Fallon v. Fallon, 111 N.J.Eq. 512, 162 A. 406,
409.
Extreme cruelty is conduct or treatment which : causes
reasonable apprehension of bodily hurt, Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694, 702; constitutes aggravated
or inhuman ill treatment, having regard to the physical and
temperamental constitution of the parties and all the surrounding circumstances, Donald v. Donald, 21 Fla. 573;
Blain v. Blain, 45 Vt. 544; Poor v. Poor, 8 N.H. 315, 29
Am. Dec. 664 ; damages health, Chisholm v. Chisholm, 98
Fla. 1196, 125 So. 694, 703; destroys concord, harmony,
happiness, or affection, Hassell v. Hassell, 185 Okl. 154, 90
P.2d 885; destroys happiness and health and defeats the
very purposes of matrimony, Hassell v. Hassell, 185 Okl.
154, 90 P.2d 885; destroys legitimate ends and objects of
matrimony, Dier v. Dier, 141 Neb. 685, 4 N.W.2d 731, 734;
McCarty v. McCarty, 193 Okl. 18, 141 P.2d 103, 104;
destroys peace of mind, Dier v. Dier, 141 Neb. 685, 4
N.W.2d 731, 734; destroys peace of mind as to seriously
i mpair health or endanger life, Smith v. Smith, 61 Ariz.
373, 149 P.2d 683, 684; McCarty v. McCarty, 193 Okl. 18, 141
P.2d 103, 104; Hornor v. Hornor, 151 Okl. 292, 3 P.2d 670,
671; endangers health and prevents proper discharge of
matrimonial duties, Brinkerhoff v. Brinkerhoff, 106 N.J.Eq.
331, 150 A. 679, 680; endangers health or safety, MacArthur v. MacArthur, 135 N.J.Eq. 215, 37 A.2d 76; whether
actually inflicted or reasonably apprehended, Rosengren v.
Rosengren, 115 N.J.Eq. 283, 170 A. 660, 661; Bamberg v.
Bamberg, 123 N.J.Eq. 570, 199 A. 54, 55; endangers life or
health, Fallon v. Fallon, 111 N:J.Eq. 512, 162 A. 406, 408;
Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694, 702;
i mpairs bodily health, Dier v. Dier, 141 Neb. 685, 4 N.W.2d
731, 734; incapacitates one from performing marital duties,
Fallon v. Fallon, 111 N.J.Eq. 512, 162 A. 406, 408; inflicts
grievous bodily injury or grievous mental suffering. Civ.
Code Cal. § 94, McFall v. McFall, 58 Cal.App.2d 208, 136
P.2d 580, 583; produces bodily hurt to physical system or
reasonable apprehension thereof, Morris v. Morris, 132 Okl.
291, 133 Okl. 176, 270 P. 833, 835; produces continuous, intense mental pain and suffering, danger to health, or a
forced abnegation of the marital relation, Currie v. Currie,
120 Fla. 28, 162 So. 152; wounds, feelings, Nelson v. Nelson, 89 Okl. 318, 117 P.2d 110, 111; Smith v. Smith, 61 Ariz.
373, 149 P.2d 683, 684; renders cohabitation intolerable,
Stocker v. Stocker, 173 Okl. 64, 47 P.2d 107, 108; renders
cohabitation intolerable and unsafe, Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694, 703.
Physical violence is extreme cruelty. Baker v. Baker, 94
Fla. 1001, 114 So. 661, 663. But "extreme cruelty" is not
confined to physical violence. Henderson v. Henderson, 137
Fla. 770, 189 So. 24, 25; Bastien v. Bastien, 57 R.I. 176, 189
A. 37, 38.
To constitute "extreme cruelty" within divorce statute,
the acts must be directed toward the other party and must
be committed with a malevolent motive. Nason v. Nason,
48 Cal.App.2d 500, 120 P.2d 37, 39, 40.
Voluntary or intentional extreme cruelty is the "extreme
cruelty," which is ground for divorce, Heim v. Heim, 35
Ohio App. 408, 172 N.E. 451.
EXTREME HAZARD. To constitute extreme
hazard, the situation of a vessel must be such that
there is imminent danger of her being lost, notwithstanding all the means that can be applied to
get her off. King v. Hartford Ins. Co., 1 Conn.
421.
EXTREME LOW TIDE are tides which are lower
than lower low. State v. Edwards, 188 Wash. 467,
62 P.2d 1094, 1095.
EXTREMIS. When a person is sick, beyond the
hope of recovery, and near death, he is said to be
in extremis.
EXTREMIS PROBATIS, PRIESUMUNTUR MEDIA. Extremes being proved, intermediate things
are presumed. Tray,' Lat. Max. 207.
701
EXTREMITY
EXTREMITY. The furthest point. Roberts v.
Hart, Tex.Civ.App., 165 S.W. 473, 476.
EXTRINSIC. Foreign; from outside sources;
dehors. As to "Extrinsic Fraud", see "Fraud."
Grounds for quashing of indictment may be matters
"intrinsic" to the pleading, as defects apparent upon its
face, United States v. Frankfeld, D.C.D.C., 38 F.Supp. 1018,
1019.
EXTRINSIC AMBIGUITY. In a written contract
is an uncertainty which does not arise by the
terms of the instrument itself, but is created by
some collateral matter not appearing in the instrument. Pacific Indemnity Co. v. California
Electric Works, 29 Cal.App.2d 260, 84 P.2d 313,
320.
EXTRINSIC EVIDENCE is external evidence, or
that which is not contained in the body of an
agreement, contract, and the like. Extrinsic evidence is also said to be evidence not legitimately before the tribunal in which the determination is made. Baldwin v. City of Buffalo, 35 N.Y.
375, 382.
EXTUMZE. In old records. Relics. Cowell.
EXUERE PATRIAM. To throw off or renounce
one's country or native allegiance; to expatriate
one's self. Phillim. Dom. 18.
EXULARE. In old English law. To exile or banish. Nullus liber homo, exuletur, nisi, etc., no
freeman shall be exiled, unless, etc. Magna Charta, c. 29; 2 Inst. 47.
EXUPERARE. To overcome; to apprehend or
take. Leg. Edm. c. 2.
EY. A watery place; water. Co.Litt. 6.
EYDE. Aid; assistance; relief. A subsidy.
EYEWITNESS. A person who could testify as to
what he had seen. Wigginton v. Order of United
Commercial Travelers of America, C.C.A.Ind., 126
F.2d 659, 662, 665, 666, 667. One who saw the act,
fact, or transaction to which he testifies. Distinguished from an ear-witness, (auritus.) Bankers'
Health & Accident Ass'n v. Wilkes, Tex.Civ.App.,
209 S.W. 230, 233; Pannell v. Sovereign Camp, W.
O.W., 171 Tenn. 245, 102 S.W.2d 50, 52. Persons
able to testify from their observation. Hayes v.
Stunkard, 233 Iowa 582, 10 N.W.2d 19.
"Eye-witness" does not necessarily mean one who
obtains knowledge of an act through the sense of sight
alone, and may include one who is able to identify a person
by his voice and who could not recognize the person on
account of absence of sight. Anderson v. Commonwealth,
291 Ky. 727, 166 S.W.2d 30, 36.
EYEWITNESS RULE is that, in absence of eyewitness, or of any obtainable direct evidence as
to what deceased did or failed to do by way of precaution, at and immediately before injury, presumption is that he, prompted by natural instinct,
was in exercise of care for his own safety, obtains.
Edwards v. Perley, 223 Iowa 1119, 274 N.W. 910,
915.
EYGNE. The same as "eigne" (q. v.).
EYOTT. A small island arising in a river. Fleta,
1. 3, c. 2, § b; Bract. 1. 2, c. 2.
EYRE. A journey; a court of itinerant justices.
Justices in eyre were judges commissioned in Anglo-Norman times in England to travel systematically through the
kingdom, once in seven years, holding courts in specified
places for, the trial of certain descriptions of causes.
EYRER. L. Fr. To travel or journey; to go
about or itinerate. Britt. c. 2. See Eyre.
EZARDAR. In Hindu law. A farmer or renter
of land in the districts of Hindoostan.
702
FABRICA
F
State ex rel. Day Pulverizer Co. v. Fitts, 166 Tenn. 156, 60
S.W.2d 167; Humphries v. Frick Co., 56 Ga.App. 124, 192
S.E. 247, 248.
The term "F. 0. B." as used in contract for purchase of
scrap iron from railroad for overseas shipment, might reasonably be construed as meaning merely that purchase
price of scrap iron was fixed on basis that railroad would
transport it free of charge and not as indicating the point
of passage of title. Expression "F. 0. B." signifies generally an intention to pass title. Southern Pac. Co. v.
Hyman-Michaels Co., 63 Cal.App.2d 757, 147 P.2d 692, 696.
"F. o. b. factory" means "1. o. b. railroad cars at factory," obligating seller to deliver to carrier without cost
to buyer, who takes risk thereafter. Richter v. Zoccoli,
8 N.J.Misc. 289, 150 A. 1, 2.
Generally, place "f. o. b." where goods are sold is
regarded as place of delivery, but effect of term "t. o. b."
depends on connection in which used. Craig Brokerage
Co. v. Joseph A. Goddard Co., 92 Ind. App. 234, 175 N.E.
19, 22.
The initials "f. o. b." are generally construed as an
intention that the price is to be paid when the property is
delivered to carrier. Rudy-Patrick Seed Co. v. Roseman,
247 Iowa 597, 13 N.W.2d 347, 349, 350.
Under contract to sell sage leaves providing for shipment
"f. o, b." Greek port, buyer and not seller had the duty of
supplying ship at Greek port. Carvel v. John Kellys (London), Limited, Sup., 53 N.Y.S.2d 640, 641.
When used in connection with the price of goods, the
term is commonly construed as fixing only the price, and
not as relating to the time, place, or mode of delivery.
Lee v. Northway Motor Sales Co., R.I., 121 A. 425; Pond
Creek Mill & Elevator Co. v. Clark, C.C.A.Ill., 270 F. 482,
486; Bott v. N. Snellenburg & Co., 177 Va. 331, 14 S.E.2d
372, 374.
F. The sixth letter of the alphabet.
Under the old English criminal law, this letter was
branded upon felons upon their being admitted to clergy;
as also upon those convicted of fights or frays, or falsity.
Jacob; Cowell; 2 Reeve, Eng.Law, 392; 4 Reeve, Eng.Law,
485.
F. A. A. Federal Aviation Agency.
F. A. A. In marine insurance. "Free of all
average," denoting that the insurance is against
total loss only. Wharton.
F. A. S. Free alongside ship. Larkin v. Geisenheimer, 201 App.Div. 741, 195 N.Y.S. 577, 578;
Iwai & Co. v. Hercules Powder Co., 162 Ga. 795,
134 S.E. 763. The term implies delivery at dock
for ship named. Christenson v. Gorton-Pew Fisheries Co., C.C.A.N.Y., 8 F.2d 689, 691.
A lumber contract providing that prices were f. o. b,
f. a. s. is too indefinite for enforcement; the expression
"f. o. b." designating that the seller should bear' the
expense of loading onto the vessel, while the expression
"f. a. s." denotes that the lumber should merely be placed
within reach of the vessel's tackle. McGowin Lumber &
Export Co. v. R. J. & B. F. Lumber Co., 192 Ala. 35, 68 So.
263, 264.
The delivery of goods under contract "F. A. S." which
means free aside ship, is complete and relieves consignor
of liability after the goods have been delivered in good
order to dock where ship is to sail. Tex-O-Kan Flour Mills
Co. v. Nord, La.App., 18 So.2d 50, 54.
F. C. A. Farm Credit Administration.
F. C. C. Federal Communications Commission.
F. C. L. means Femme Couleur Libre. Sunseri v.
Cassagne, 191 La. 209, 185 So. 1, 4.
F. P. A. In marine insurance. "Free from particular average." Wharton. See Average.
F. D. A. Food and Drug Administration.
F. D. I. C. Federal Deposit Insurance Corporation.
F. G. A. In marine insurance. "Free from general average"; also, sometimes, "foreign general
average." The precise meaning of this abbreviation must be gathered from the context. Wharton.
F. H. A. Federal Housing Administration; Farmers Home Administration.
F. H. L. B. B. Federal Home Loan Bank Board.
F. M. C. S. Federal Mediation and Conciliation
Service.
F. N. M. A. Federal National Mortgage Association.
F. 0. B. Term "f. o. b." is an abbreviation for
"free on board," and means that seller or consignor of goods will deliver them on car, vessel,
or other conveyance by which they are to be transported without expense to buyer or consignee.
Hatcher v. Ferguson, 33 Idaho, 639, 198 P. 680,
681, 16 A.L.R. 590; Swerdfeger v. United Acceptance Corporation, 9 Cal.App.2d 590, 50 P.2d
818, 820; Olsen v. McMaken & Pentzien, 139 Neb.
506, 297 N.W. 830, 832; Fernholtz Machinery Co.
v. Wilson, 118 Cal.App. 573, 5 P.2d 679, 682.
Contract provision for shipment of goods by seller
"f. o. b." place of manufacture means that they are to be
delivered to carrier by seller without ex p ense to buyer.
F. R. S. Federal Reserve System.
F. T. C. Federal Trade Commission.
FABRIC. With reference to the' reinforcement of
concrete, a union of drawn wires made up in rows.
Soule v. Northern Construction Co., 33 Cal.App.
300, 165 P. 21, 22.
A woven, felted, or krlitted material for wear or ornament, as cloth, felt, hosiery, or lace; also the material
used in its making; something that . has been fabricated,
constructed, or put together; any complex construction;
a system built up of correlated parts; structure or edifice.
Guaranty Trust Co. of New York v. Johns-Manville Corporation, D.C.N.Y., 14 F.Supp. 792, 797.
Something that has been fabricated, constructed, or put
together; the structure of anything or anything manufactured, and in a broad sense includes a flexible sheet metal.
Johns-Manville Corporation v. National Tank Seal Co.,
C.C.A.Okl., 49 F.2d 142, 145.
FABRIC LANDS. In English law. Lands given
towards the maintenance, rebuilding, or repairing
of cathedral and other churches. Cowell; Blount.
Called by the Saxons timber-lands. Spelman.
It was the custom, says Cowell, for almost every one to
give by will more or less to the fabric of the cathedral or
parish church where he lived. These lands so given were
called fabric lands, because given ad fabricam ecclesia3
reparandam (for repairing the fabric of the church).
FABRICA. In old English law. The making or
coining of money.
703
FABRIC ARE
FABRICARE. Lat. To make. Used in old English law of a lawful coining, and also of an unlawful making or counterfeiting of coin. Used in
an indictment for forging a bill of lading; 1 Salk.
341.
FABRICATE. To invent; to devise falsely. Invent is sometimes used in a bad sense, but fabricate never in any other.
To fabricate a story implies that it is so contrary to
probability as to require the skill of a workman to induce
belief in it. Crabbe, Syn. The word implies fraud or falsehood; a false or fraudulent concoction, knowing it to be
wrong. L, R. 10 Q.B. 162.
To fabricate evidence is to arrange or manufacture circumstances or indicia, after the fact committed, with the
purpose of using them as evidence, and of deceitfully making them appear as if accidental or undesigned; to devise
falsely or contrive by artifice with the intention to deceive.
Such evidence may be wholly forged and artificial, or it
may consist in so warping and distorting real facts as to
create an erroneous impression in the minds of those who
observe them and then presenting such impression as true
and genuine.
FABRICATED EVIDENCE. Evidence manufactured or arranged after the fact, and either wholly false or else warped and discolored by artifice
and contrivance with a deceitful intent. See supra.
FABRICATED FACT. In the law of evidence. A
fact existing only in statement, without any
foundation in truth. An actual or genuine fact
to which a false appearance has been designedly
given; a physical object placed in a false connection with another, or with a person on whom it is
designed to cast suspicion.
FACE AMOUNT. The "face amount" of an instrument is that shown by the mere language employed, and excludes any accrued interest. Burns
v. Corn Exch. Nat. Bank of Omaha, Neb., 33 Wyo.
474, 240 P. 683, 687. See Face of instrument.
The face amount of a policy means the amount which is,
in all events, payable under the policy as straight life
insurance without regard to any additional features, such
as accident or disability insurance, Smith v. Equitable Life
Assur. Soc. of United States, 232 Mo.App. 935, 107 S.W.2d
191, 195; face values specified in policies plus dividend
additions postdating lapse, and exclusive of accidental
death benefits, Valenti v. Prudential Ins. Co. of America,
C.C.A.Mo., 71 F.2d 229, 233.
FACE AMOUNT INSURED BY THE POLICY.
Within statute relating to extended life insurance,
means the amount which is, in all events, payable
under the policy as straight life insurance without
regard to additional features such as accident or
disability insurance. Wilkins v. Metropolitan Life
Ins. Co., 350 Mo. 185, 165 S.W.2d 858, 861, 862;
Wilkins v. Metropolitan Life Ins. Co., 236 Mo.App.
586, 159 S.W.2d 354, 356.
FACE OF BOOK. Under an act providing that a
public or private statute or the proceedings of any
legislative body purporting on the face of the book
to be printed by authority of the government of
the state are evidence without further proof, the
"face of the book" and the "title page" need not
coincide, as "face" is used in contradistinction to
"cover." Pensacola, St. A. & G. S. S. Co. v.
Brooks, 14 Ala.App. 364, 70 So. 968, 970.
FABRICATING. .The word "fabricating," in its
context, does not mean "manufacturing," but
means cutting, carving, dressing, shaping and
working over stone. Commonwealth v. Paul W.
Bounds Co., 316 Pa. 29, 173 A. 633.
FACE OF INSTRUMENT. That which is shown
by the language employed, without any explanation, modification, or addition from extrinsic facts
or evidence. Adopted in Re Stoneman, Sur., 146
N.Y.S. 172, 175; Investors' Syndicate v. Willcuts,
D.C.Minn., 45 F.2d 900, 902. Thus, if the express
terms of the paper disclose a fatal legal defect, it
is said to be "void on its face." Regarded as an
evidence of debt, the face of an instrument is the
principal sum which it expresses to be due or payable, without any additions in the way of interest
or costs. Osgood v. Bringolf, 32 Iowa, 265. See,
also, State v. Newby, 169 Wis. 208, 171 N.W. 953,
954.
FABRICATION. "Manufacture" and "fabrication," are often, in broadest sense, interchangeable in meaning; definition in particular instance
depending on environment of particular use of
either. Union Wire Rope Corporation v. _Atchison, T. & S. F. Ry. Co., C.C.A.Mo., 66 F.2d 965, 970.
The word "fabrication," meaning "making," although
not generally synonymous with "reworking," meaning a
working over, was expressly so used in railroad tariff in
question, as distinguished from "manufacture." Atchison,
T. & S. F. IL Co. v. Union Wire Rope Corporation,
D.C.Mo., 1 F.Supp. 399.
FABULA. In old European law. A contract or
formal agreement; particularly used in the Lombardic and Visigothic laws to denote a marriage
contract or a will. Burrill.
FACE.
The surface of anything; especially the front, upper, or
outer part or surface; that which particularly offers itself
to the view of a spectator. The words of a written paper
In their apparent or obvious meaning, as, the face of a
note, bill, bond, check, draft, judgment record, or contract;
the face of a judgment for which it was rendered exclusive
of interest. Cunningham v. Great Southern Life Ins. Co.,
Tex.Civ.App., 66 S.W.2d 765, 773.
That which is shown by the mere language employed without any explanation, modification, or addition from extrinsic facts or evidence, the principal sum which it expresses to be
due or payable, without any additions in the way
of interest and costs. Cunningham v. Great
Southern Life Ins. Co., Tex.Civ.App., 66 S.W.2d
765, 773. The outward appearance or aspect of a
thing.
For "Regular on its face," see that title.
FACE OF JUDGMENT. The sum for which it
was rendered, exclusive of interest. Osgood v.
Bringolf, 32 Iowa, 265. See, also, Face of instrument.
FACE OF POLICY. A phrase which, as used in
a statute forbidding life insurance policies to contain provision for any mode of settlement at maturity of less value than the amount insured on
the "face of the policy," does not mean merely the
first page, but denotes the entire insurance contract contained in the policy, including a rider at-
704
FACILITY
tached and referred to on the first page. Julius
v. Metropolitan Life Ins. Co., 299 Ill. 343, 132 N.E.
435, 437, 17 A.L.R. 956.
FACE OF RECORD. The entire record in a case,
not merely what the judgment recites. Carson
v. Taylor, Tex.Civ.App., 261 S.W. 824; San Bernardo Townsite Co. v. Hocker, Tex.Civ.App., 176
S.W. 644, 646.
The "face of the record" means, in a criminal case, the
indictment and the verdict. Jones v. State, 58 Ga.App. 374,
198 S.E. 566.
The phrases "judgment roll," "judgment record," and
"face of the record" are synonymous. Every part of trial
proceedings reserved in courts of record under direction of
court for purpose of its records constitutes the "judgment
roll." Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d
564, 566, 111 A.L.R. 1152,
FACE VALUE. This term, in a statute taxing
transfers of corporate stock, means par value.
Goodyear Tire & Rubber Co. v. U. S., 273 U.S. 100,
47 S.Ct. 263, 71 L.Ed. 558. See, also In re Stoneman, Sur., 146 N.Y.S. 172, 174.
As used in statute concerning acceptance of bonds as ball
means that value, written or printed on face of instrument
and the unmatured coupons attached thereto, without reference to the actual or market value of bonds. Wilson v. Justice's Court of Township of San Diego, 22 Cal.App.2d 278,
70 P.2d 695, 696.
The "face value" of an interest bearing note, is the principal plus accrued interest. American Nat. Bank of Portsmouth v. Ames, 169 Va. 711, 194 S.E. 784, 798.
The value which can be ascertained from the language of
the instrument without aid from extrinsic facts or evidence. Investors' Syndicate v. Willcuts, D.C.Minn., 45 F.2d
900, 902.
FACERE. Lat. To do; to make. Thus, facere
defaltam, to make default; facere duellum, to
make the duel, or make or do battle; facere finem,
to make or pay a fine; facere legem, to make
one's law; facere sacramentum, to make oath.
FACIAL DISFIGUREMENT. That which impairs or injures the beauty, symmetry, or appearance of a person, that which renders unsightly,
misshapen or imperfect or deforms in some manner. Ferguson v. State Highway Department, 197
S.C. 520, 15 S.E.2d 775, 778; Poole v. Saxon Mills,
192 S.C. 339, 6 S.E.2d 761, 764.
:
FACIA& That you cause.
Occurring in the phrases "scare facias," (that you cause
to know,) "fieri facias," (that you cause to be made,) etc.
Used also in the phrases Do ut facias (I give that you may
do), Facio ut facias (I do that you may do), two of the
four divisions of considerations made by Blackstone, 2
Comm. 444. See Facio ut des; Facio ut facias.
FACIENDO. In doing or paying; in some activity.
FACIES. Lat. The face or countenance; the exterior appearance or view; hence, contemplation
or study of a thing on its external or apparent
side.
Thus, prima facie means at the first inspection, on a preliminary or exterior scrutiny. When we speak of a "prima
facie case," we mean one which, on its own showing, on a
first examination, or without investigating any alleged
defenses, is apparently good and maintainable.
FACILE. In Scotch law. Easily persuaded; easily imposed upon. Bell.
Black's Law Dictionary Revised 4th Ed.-45
FACILITATE. To make easy or less difficult, or
to free from difficulty or impediment. Pon Wing
Quong v. United States, C.C.A.Cal., 111 F.2d 751,
756. To make more easy or less difficult; free
more or less completely from obstruction or hindrance; lessen the labor of: United States v. One
Dodge Coupe, Motor No. D14-105424, Serial No.
30284066, D.C.N.Y., 43 F.Supp. 60, 61.
'FACILITIES. That which promotes the ease of
any action, operation, transaction, or course of
conduct. Webster. The term denotes inanimate
means rather than human agencies. Sloss-Sheffield Steel & Iron Co. v. Smith, 185 Ala. 607, 64
So. 337, 338.
Also, a name formerly given to certain notes
of some of the banks in the state of Connecticut,
which were made payable in two years after the
close of the war of 1812. Springfield Bank v. Merrick, 14 Mass. 322.
As applied to carriers, means everything necessary for
the convenience of passengers and the safety and prompt
transportation of freight; everything incident to the general, prompt, safe, and impartial performance of the duties
to the public at large imposed by the state, in the proper
exercise of its police power, upon transportation or transmission companies. As applied to a ferry franchise, everything incident to the general, prompt, and safe carriage of
passengers, boats in good repair, appliances answering the
purpose, and readiness and willingness to perform the
services incident to the grant. Fraters v. Keeling, 20 Cal.
App.2d 490, 67 P.2d 118, 119.
As used in phrase "special facilities within the place of
amusement," in statute creating amusement tax, referred
to personal accommodations furnished for comfort of
patron to enable him to obtain a better view of what he
paid for when he entered the ground or to more conveniently do so. Martin v. F. H. Bee Shows, 271 Ky. 822, 113
S.W.2d 448, 452.
As used in statute giving Public Service Commission control over service and facilities of public service companies,
means something owned by or under the control of a public utility. Borough of Swarthmore v. Public Service Commission, 277 Pa. 472, 121 A. 488, 489.
Electric company which transmitted electricity from generating plant through a line to another company which
transmitted such electricity in interstate commerce, operated "facilities" subject to jurisdiction of Federal Power
Commission. Jersey Central Power & Light Co. v. Federal
Power Commission, C.C.A.3, 129 F.2d 183, 195.
Electric company's corporate organization, contracts,
accounts, memorandum, papers, and other records constituted "facilities" within Federal Power Act. The word
"facilities" embraces anything which aids or makes easier
the performance of the activities involved in the business
of a person or corporation. Hartford Electric Light Co. v.
Federal Power Commission, C.C.A.2, 131 F.2d 953, 960, 961,
962.
Freight cars are "facilities" of transportation as defined
by Interstate Commerce Act. General American Tank Car
Corporation v. El Dorado Terminal Co., Cal., 308 U.S. 422,
60 S.Ct. 325, 329, 84 L.Ed. 361.
Sidetracks constituting part of a transportation system
are "facilities" of ythe railroad, even though privately.
owned, Lehigh Na . Coal Co. v. Pennsylvania Public Utility Commission, 133 Pa.Super. 67, 1 A.2d 540, 544.
Street railroad's "facilities" include tracks and land reasonably necessary for operation of railroad and accommodation of patrons. Munoz v. Porto Rico Ry., Light &
Power Co., C.C.A.Puerto Rico, 74 F.2d 816, 821.
FACILITY. In Scotch law. Pliancy of disposition. Bell.
A switch engine and crew is a "facility" within statute
authorizing rental thereof by railroad. Nekoosa-Edwards
Paper Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 217
Wis. 426, 259 N.W. 618.
705
FACILITY
As ordinarily used, Is not as narrow a term as "instrumentality." Nekoosa-Edwards Paper Co. v. Minneapolis,
St. P. & S. S. M. Ry. Co., 217 Wis. 426, 259 N.W. 618.
Convenient means. Briggs Mfg. Co. v. U. S., D.C.Conn.,
30 F.2d 962, 964.
Where electric company transmitted electricity to
another company which transmitted it in interstate commerce, the former company's line was a "facility" subject
to jurisdiction of Federal Power Commission. Jersey Central Power & Light Co. v. Federal Power Commission, 319
U.S. 61, 63 S.Ct. 953, 959, 87 L. Ed. 1258.
FACILITY OF PAYMENT CLAUSE, is appoint..
ment by assured and beneficiary of persons authorized to receive payment. French v. Lanham,
App.D.C., 57 F.2d 422; Fulcher v. Parker, 169
Va. 479, 194 S.E. 714, 716. It confers on insurer an
option as to whom it will make payment, Metropolitan Life Ins. Co. v. Brown for Use and Benefit
of Fleming, 25 Tenn.App. 514, 160 S.W.2d 434, 438;
Rohde v. Metropolitan Life Ins. Co., 233 Mo.App.
865, 111 S.W.2d 1006.
Such clause in group policy giving employer under certain contingencies power to designate beneficiary controls
only where no other beneficiary is named. Potter v.
Young, 193 Ark. 957, 104 S.W.2d 802, 804.
FACING. In deed containing building restrictions applicable to lots "facing" and "having a
frontage" on named street, quoted words as applied to oblong lots referred to the street which
buildings to be erected on the lots were intended
to face. Aller v. Berkeley Hall School Foundation, 40 Cal.App.2d 31, 103 P.2d 1052, 1054.
FACINUS QUOS INQUINAT )SQUAT. Guilt
makes equal those whom it stains.
FACIO UT DES. (Lat. I do that you may give.)
A species of contract in the civil law (being one of the
innominate contracts) which occurs when a man agrees to
perform anything for a price either specifically mentioned
or left to the determination of the law to set a value on it;
as when a servant hires himself to his master for certain
wages or an agreed sum of money. 2 B1.Comm. 445. Also,
the consideration of that species of contract.
FACIO UT FACIAS. (Lat. I do that you may
do.)
The consideration of that species of contract in the civil
law, or the contract itself (being one of the innominate
contracts), which occurs when I agree with a man to do
his work for him if he will do mine for me; or if two
persons agree to marry together, or to do any other positive acts on both sides; or it may be to forbear on one side
in consideration of something done on the other. 2
Bl.Comm. 444.
FACSIMILE. An exact copy, preserving all the
marks of the original.
FACSIMILE PROBATE. In England, where the
construction of a will may be affected by the appearance of the original paper, the court will order
the probate to pass in facsimile, as it may possibly
help to show the meaning of the testator. 1 Williams, Ex'rs, 7th Ed., 331, 386, 566.
FACT. A thing done; an action performed or an
incident transpiring; an event or circumstance;
an actual occurrence. An actual happening in
time or space or an event mental or physical.
Fowler-Curtis Co. v. Dean, 203 App.Div. 317, 196
N.Y.S. 750, 754; German-American Ins. Co. v.
Huntley, 62 Okl. 39, 161 P. 815, 817; Rost v. Kessler, 267 App.Div. 686, 49 N.Y.S.2d 97, 99. That
which has taken place, not what might or might
not have taken place. Churchill v. Meade, 92 Or.
626, 182 P. 368, 371.
A fact is either a state of things, that is, an existence, or
a motion, that is, an event. 1 Benth.Jud.Ev. 48.
Fact (factum, fait) stands in lawbooks for : 1. An act;
2. For a completed and operative transaction brought
about by sealing and executing a certain sort of writing,
and so for the instrument itself, a deed (factuin); 3. As
designating what exists, in contradistinction to what should
exist (de facto as contrasted with de jure); 4. As indicating things, events, actions, conditions, as happening, existing, really taking place. Thayer, Evid. 190.
"Fact" was formerly used almost exclusively in the sense
of "action" or "deed." This usage survives in phrases
such as "accessory before the fact."
As used in statute providing that malice shall be presumed from publication of matter not privileged, unless
the "fact" and the testimony rebut such presumption,
means the act, the thing done, the circumstance, the publication itself. Reininger v. Prickett, 192 Okl. 486, 137 P.2d
595, 597.
As used in statute requiring statement of facts constituting cause of action, "facts" mean narrative of events, acts,
and things done which show legal liability of defendant to
plaintiff. Rhoads v. Columbia Fire Underwriters' Agency,
128 Neb. 710, 260 N.W. 174.
"Facts" to which Supreme Court is limited on certiorari
to quash Court of Appeals' decision for conflict comprise
record before Court of Appeals, evidence, documentary and
oral, and instructions and pleadings. State ex rel. Horspool v. Haid, 328 Mo. 327, 40 S.W.2d 611, 613.
Good reputation of an accused when proved is a "fact".
State v., Fenimore, 3 Terry 183, 29 A.2d 170, 171. Intent is
a "fact". Majestic Securities Corporation v. Commissioner
of Internal Revenue, C.C.A.8, 120 F.2d 12, 14. "Knowledge" is a "fact", and an "assertion of knowledge", when
knowledge does not exist, is an assertion not in accordance
with the facts. Eastern States Petroleum Co. v. Universal
Oil Products Co., 24 Del.Ch. 11, 3 A.2d 768, 775. Representations as to boundaries of land are representations of
"fact". Algee v. Hillman Inv. Co., 12 Wash.2d 672, 123
P.2d 332, 334. Where knowledge is possible, one who represents a mere belief as knowledge misrepresents a "fact",
Sovereign Pocohontas Co. v. Bond, 74 App.D.C. 175, 120
F.2d 39, 40.
Law and Fact as Distinguishable
"Fact" is very frequently used in opposition or
contrast to "law."
Thus, questions of fact are for the jury; questions of
law for the court. So an attorney at law is an officer of the
courts of justice; an attorney in fact is appointed by the
written authorization of a principal to manage business
affairs usually not professional. Fraud in fact consists in
an actual intention to defraud, carried into effect; while
fraud imputed by law arises from the man's conduct in its
necessary relations and consequences.
A "fact", as distinguished from the "law", may be taken
as that out of which the point of law arises, that which is
asserted to be or not to be, and is to be presumed or
proved to be or not to be for the purpose of applying or
refusing to apply a rule of law. Hinckley v. Town of
Barnstable, 311 Mass. 600, 42 N.E.2d 581, 584.
Law is a principle; fact is an event. Law is conceived;
fact is actual. Law is a rule of duty; fact is that which
has been according to or in contravention of the rule. The
distinction Is well illustrated in the rule that the existence
of foreign laws is matter of fact. Within the territory of
its jurisdiction, law operates as an obligatory rule which
judges must recognize and enforce; but, in a tribunal outside that jurisdiction, it loses its obligatory force and its
claim to judicial notice. The fact that it exists, if important to the rights of parties, must be alleged and proved
the same as the actual existence of any other institution.
Abbott.
Law of Evidence
A circumstance, event or occurrence as it actual..
ly takes or took place; a physical object or appearance, as it actually exists or existed. An actual and absolute reality, as distinguished from
706
FACTOR
Facts. Facta et casus, facts and cases. Bract.
fol. lb.
mere supposition or opinion; a truth, as distinguished from fiction or error. Burrill, Circ.Ev. 218.
"Circumstances" are but minor facts, Scott v. State, 57
Ga.App. 489, 195 S.E. 923, 924. Facts admitted upon trial
of cause become "evidence". American Extension School
of Law v. Ragland, 232 Mo.App. 763, 112 S.W.2d 110, 113.
Facts judicially noticed are equivalent to evidence. Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784, 792.
"Facts" and "evidence" are sometimes used interchangeably. Mackey v. First Nat. Bank, Mo.App., 293 S.W. 66, 71.
But the terms are not really synonymous; evidence,
broadly defined, being means from which an inference may
logically be drawn as to existence of a fact. Tjernstrom
v. Ford Motor Co., 285 Mich. 450, 280 N.W. 823, 825. Yet,
although "facts" and the "evidence" are quite different, it
sometimes may happen that they constitute one and the
same thing. Gates v. Haw, 150 Ind. 370, 50 N.E. 299.
Hypothetical question propounded to plaintiff's witness in
which an assumed fact was that a test made by another
expert had a specified result referred to a "fact" and not an
"opinion" of the expert. Cody v. Toiler Drug Co., 232
Iowa 475, 5 N.W.2d 824, 828.
In rule 41(b), providing for motion for dismissal at close
of plaintiff's evidence in nonjury case on ground that upon
the facts and the law plaintiff has shown no right to relief,
the "facts" referred to are the prima facie facts shown by
plaintiff's evidence viewed in light most favorable to him.
Schad v. Twentieth Cehtury-Fox Film Corporation, C.C.A.
Pa., 136 F.2d 991, 993.
Ownership of property is, generally, a "fact" to which
a witness may testify. Diamond v. Grath, 46 Cal.App.2d
443, 116 P.2d 114, 116.
Statement that cause of death was a gunshot wound was
a statement of "fact" but further statements ,,that such
wound was self-inflicted and that death was suicide were
mere expressions of "opinion". Kentucky Home Mut. Life
Ins. Co. v. Watts, 298 Ky. 471, 183 S.W.2d 499, 502.
Where person states matter which might otherwise be
only an "opinion" as an existing fact material to the
transaction, the statement clearly becomes a statement of
"fact". Fidelity & Casualty Co. of New York v. J. D. Pittman Tractor Co., 244 Ala. 354, 13 So.2d 669, 672.
Words "facts" and "circumstances" are used interchangeably in the phrase circumstantial evidence. Pulliam
v. State, 196 Ga. 782, 28 S.E.2d 139, 147.
Workmen's compensation claimant's testimony that he
was well related to a "fact" and not to an "opinion".
Texas Employers Ins. Ass'n v. Griffis, Tex.Civ.App., 141
S.W.2d 687, 690.
Truth and Fact Distinguished
The terms "fact" and "truth" are often used in
common parlance as synonymous, but, as employed in reference to pleading, they are widely
different. A fact in pleading is a circumstance,
act, event, or incident; a truth is the legal principle which declares or governs the facts and their
operative effect. Admitting the facts stated in a
complaint, the truth may be that the plaintiff is not
entitled, upon the face of his complaint, to what he
claims. The mode in which a defendant sets up
that truth for his protection is a demurrer. Drake
v. Cockroft, 4 E. D. Smith, N.Y., 37.
For "Collateral Facts," "Dispositive Facts," "Evidentiary Facts," "Finding of Fact," "Immaterial
Facts," "Jurisdictional Facts," "Material Fact,"
"Principal Fact," and "Ultimate Facts," see those
heads.
FACT MATERIAL TO RISK. See Material Fact.
FACTA. In old English law. Deeds. Facta armorum, deeds or feats of arms; that is, jousts or
tournaments. Cowell.
FACTA SUNT POTENTIORA VERBIS. Deeds
[or facts] are more powerful than words.
FACTA TENENT MULTA QUIE FIERI PROHIBENTUR. 12 Coke, 124. Deeds contain many
things which are prohibited to be done.
FACTIO TESTAMENTI. In the civil law. The
right, power, or capacity of making a will; called
"factio activa." Inst. 2, 10, 6.
The right or capacity of taking by will; called
"f actio passiva." Inst. 2, 10, 6; Vicat, Voc.Jur.
FACTO. In fact; by an act; by the act or fact.
Ipso facto, by the act itself ; by the mere effect of
a fact, without anything superadded, or any proceeding upon it to give it effect. 3 Kent, Comm.
55, 58.
FACTO ET ANIMO. In fact and intent. Northwestern Mortgage & Security Co. v. Noel Const.
Co., 71 N.D. 256, 300 N.W. 28, 31,
FACTOR. A commercial agent, employed by a
principal to sell merchandise consigned to him for
that purpose, for and in behalf of the principal,
but usually in his own name, being intrusted with
the possession and control of the goods, and being
remunerated by a commission, commonly called
"factorage." Howland v. Woodruff, 60 N.Y. 80; In
re Rabenau, D.C.Mo., 118 F. 474; Graham v. Duckwall, 8 Bush, Ky., 17; Pal.Ag. 13; Sto.Ag. § 33;
Com.Dig. Merchant, B; Malynes, Lex Merc. 81;
Beawes, Lex Merc. 44; 3 Chit.Com.L. 193; 2 Kent
622; 1 Bell, Comm. 385, § 408; 2 B. & Ald. 143.
In Scotch law, a person appointed to transact
business or manage affairs for another, but more
particularly an estate-agent or one intrusted with
the management of a landed estate, who finds
tenants, makes leases, collects the rents, etc.
In some of the states, the person who is elsewhere called "garnishee" or "trustee." See Factorizing Process.
A commercial agent to whom the possession of personalty
is entrusted by or for the owner, to be sold, for a compensation, in pursuance of the agent's usual trade or business, with title to goods remaining in principal and the
"factor" being merely a bailee for the purposes of the
agency. Neild v. District of Columbia, 71 App.D.C. 306, 110
F.2d 246, 259.
Although a "factor" is in the last analysis an agent, the
agency is a limited one. Falls Rubber Co. v. La Fon, Tex.
Civ.App., 256 S.W. 577, 579.
An agent employed to sell goods for principal, The Robin
Gray, D.C.N.Y., 53 F.2d 1037, 1041. An agent employed to
sell goods for his principal which are in his possession for
a commission and ordinary consignment contract create
relation of factor and principal. Robertson v. State, 207
Ind. 374, 192 N.E. 887, 888.
An agent employed to sell goods or merchandise consigned or delivered to him, by or for his principal, for a
compensation, commonly called factorage or commission,
and an agent for the sale of goods in his possession or consigned to him. Hughes v. Young, 17 Tenn.App. 24, 65
S.W.2d 858.
An agent, who, in pursuance of his usual trade or business, and for compensation, sells goods or merchandise consigned or intrusted to his possession for that purpose by or
707
FACTOR
for the owner. Sams v. Arthur, 135 S.C. 123, 133 S.E. 205,
207; M. H. Thomas & Co. v. Hawthorne, Tex.Civ.App., 245
S.W. 966, 971; Lemnos Broad Silk Works v. Spiegelberg,
127 Misc.Rep. 855, 217 N.Y.S. 595, 597.
An agent who, in the pursuit of an independent calling,
is employed by another to sell property for him, and is
vested by the latter with the possession or control of the
property, or authorized to receive payment therefor from
the purchaser. Civ.Code Cal. § 2026; Comp.Laws N.D.1913,
§ 6145; Comp.Laws S.D.1929, § 1288; Leland v. Oliver, 82
Cal.App. 474, 255 P. 775, 777.
One who, In pursuance of business, receives goods from
principal and sells them for compensation called factorage
or commission. Holleman v. Taylor, 200 N.C. 618, 158 S.E.
88, 89.
One whose business is to receive and sell goods for a commission, being intrusted with the possession of the goods to
be sold, and usually selling in his own name. City of
Atlanta v. York Mfg. Co., 155 Ga. 33, 116 S.E. 195, 199;
Tyson v. Jennings Produce Co., 16 Ala.App. 374, 77 So. 986,
987; G. H. Hammond Co. v. Joseph Mercantile Co., 144
Ark. 108, 222 S. W. 27, 28.
In the old law, one to whom goods are consigned to sell
by a merchant at a distance from the place of sale. Eames
v. H. B. Claflin Co., C.C.A.N.Y., 239 F. 631, 635.
Broker and Factor Distinguished
A factor differs from a "broker" in that he is intrusted with the possession, management, and control of the goods, (which gives him a special property in them,) ; while a broker acts as a mere intermediary without control or possession of the
property. A factor may buy and sell in his own
name, as well as in that of the principal, while a
broker, as such, cannot ordinarily buy or sell in
his own name. Commercial Inv. Trust v. Stewart,
235 Mich. 502, 209 N.W. 660, 661; Sutton &
Cummins v. Kiel Cheese & Butter Co., 155 Ky.
465, 159 S.W. 950, 951; Hughes v. Young, 17
Tenn.App. 24, 65 S.W.2d 858; Gadsden County
Tobacco Co. v. Corry, 103 Fla. 217, 137 So. 255, 257.
A factor or commission merchant has a lien
upon the goods for his charges, advances, and
commissions, while the broker has no control of
the property and is responsible only for bad faith.
McCornick & Co., Bankers v. Tolmie Bros., 42
Idaho 1, 243 P. 355, 358.
A factor or commission merchant is one who has the
actual or technical possession of goods or wares of another
for sale. A "merchandise broker" is one who negotiates
the sale of merchandise without having it in his possession
or control. He is simply an agent with very limited powers, J. M. Robinson, Norton & Co. v. Cotton Factory, 124
Ky. 435, 99 S.W. 305, 102 S.W. 869, 8 L.R.A.,N.S., 474.
Commission Merchants and Factors
as Synonymous
Factors are also frequently called "commission
merchants;" and it is said that there is no difference in the meaning of these terms, the latter
being perhaps more commonly used in America.
Thompson v. Woodruff, 7 Cold. 410; Duguid v.
Edwards, 50 Barb., N.Y., 288; Lyon v. Alvord, 18
Conn. 80. See, also, Commission Merchant.
A "foreign factor," as understood in marine matters, was
a person who had charge of the cargo to handle it, dispose
of it, convert it into money, or exchange it for other property, but who had nothing to do with the management of
the boat when he sailed thereon, at which time he was
called a "supercargo." Gilchrist Transp. Co. v. Worthington & Sill, 193 App.Div. 250, 184 N.Y.S. 81, 83; Beawes,
Lex Mere. 44; Liverm.Ag. 69; 1 Domat, b. 1, t. 16, § 3,
art. 2.
Judicial Factor
In Scotch law. A factor appointed by the courts
in certain cases where it becomes necessary to intrust the management of property to another
than the owner, as, where the latter is insane or
i mbecile or the infant heir of a decedent.
Supercargo as a Factor
Where an owner of goods to be shipped by sea
consigns them to the care of an agent, who sails
on the same vessel, has charge of the cargo on
board, sells it abroad, and buys a return cargo out
of the proceeds, such agent is strictly and properly
a "factor," though in maritime law and usage he
is commonly called a "supercargo." Beawes, Lex
Merc. 44, 47; Liverm.Ag. 69, 70.
FACTORAGE. The wages, allowance, or commission paid to a factor for his services. Winne v.
Hammond, 37 Ill. 103; State v. Thompson, 25 S.W.
346, 120 Mo. 12.
' FACTORING is a system involving notice to the
trade debtors, and is confined principally to the
textile industry. Corn Exchange Nat. Bank &
Trust Co., Philadelphia, v. Klauder, Pa., 318 U.S.
434, 63 S.Ct. 679, 682, 87 L.Ed. 884, 144 A.L.R. 1189.
FACTORIZING PROCESS. In American law. A.
process by which the effects of a debtor are attached in the hands of a third person. A term
peculiar to the practice in Vermont and Connecticut. Otherwise termed "trustee process," "garnishment," and process by "foreign attachment."
Cross v. Brown, 19 R.I. 220, 33 A. 147; Drake, Attach. § 451.
FACTORS' ACTS. The name given to several
English statutes (6 Geo. IV. c. 94; 5 & 6 Vict. c. 39;
40 & 41 Vict. c. 39) by which a factor is enabled to
make a valid pledge of the goods, or of any part
thereof, to one who believes him to be the bona
fide owner of the goods. Similar legislation is
not uncommon in the United States.
FACTORY,
Domestic and Foreign Factors
Factors are called "domestic" or "foreign" according as they reside and do business in the same
state or country with the principal or in a different
state or country.
American Law
A building or group of buildings appropriated
to the manufacture of goods, including the machinery necessary to produce the goods, and the
engine or other power by which the machinery is
propelled; the place where workers are employed
in fabricating goods, wares, or utensils. Cent.
Diet.; Mayhew v. Hardesty, 8 Md. 479. A structure where something is made or manufactured.
People v. R. F. Stevens Co., 178 App.Div. 306, 165
N.Y.S. 39.
A domestic factor is sometimes called a "home" factor.
Ruffner v. Hewitt, 7 W.Va. 585; 1 Term 112; 4 Maule & S.
576.
An undertaking in which the business of working at
commodities is carried on with power-driven machinery.
Gowey v. Seattle Lighting Co., 108 Wash. 479, 184 P. 339.
708
FACTUM
Any mill, workshop, or any manufacturing or business
establishment, and all buildings, sheds, structures, or other
places used for or in connection therewith where one or
more persons are employed at labor. Under such statute,
the term includes a machine shop, People v. Transit
Development Co., 165 N.Y.S. 114, 115, 178 App.Div. 288;
and a theatrical company; Ursprung v. Winter Garden Co.,
169 N.Y.S. 738, 745, 183 App.Div. 718; but not a butche:
shop; O'Connor v. Webber, 219 N.Y. 439, 114 N.E. 799.
Any premises where steam, water, or other mechanical
power is used in the aid of any manufacturing process
without reference to whether it is inclosed in a building.
Casey v. Barber Asphalt Paving Co., C.C.A.Wash., 202
F. 1, 5.
Any premises wherein power is used in manufacturing,
making, altering, adapting, ornamenting, finishing, repairing, or renovating articles for purpose of trade or gain, or
of business carried on therein. Bradley v. Blakley, La.App.,
147 So. 709, 710; Menke v. Hauber, 99 Kan. 171, 160 P.
1017, 1018.
The word does not necessarily mean a single building or
edifice, but may apply to several, where they are used in
connection with each other, for a common purpose, and
stand together in the same inclosure. Liebenstein v. Insurance Co., 45 Ill. 303. And see Hernischel v. Texas Drug
Co., 26 Tex.Civ.App. 1, 61 S.W. 419; Schott v. Harvey, 105
Pa. 227, 51 Am.Rep. 201; Amberg v. Kinley, 214 N.Y. 531,
108 N.E. 830, 833, L.R.A.1915E, 519.
To bring acts within statutory definition of "factory" as used in statute relating to employees' rest
each week, the acts must be manufacturing ones.
People v. Middletown & U. R. Co., 169 Misc. 773, 8
N.Y.S.2d 193, 195, 196.
FACTS CANNOT LIE. 18 How.State Tr. 1187;
17 How.State Tr. 1430; but see Best, Ev. 587.
FACTS IN ISSUE. Those matters of fact on
which the plaintiff proceeds by his action, and
which the defendant controverts in his pleadings.
Maeder Steel Products Co. v. Zanello, 109 Or. 562,
220 P. 155, 158; King v. Chase, 15 N.H. 9, 41 Am.
Dec. 675; Caperton v. Schmidt, 26 Cal. 494, 85
Am.Dec. 187.
English Law and Statutes
The term includes all buildings and premises
wherein, or within the close or curtilage of which,
steam, water, or any mechanical power is used to
move or work any machinery employed in preparing, manufacturing, or finishing cotton, wool, hair,
silk, flax, hemp, jute, or tow. So defined by the
statute 7 Vict. c. 15, § 73.
By later acts this definition has been extended to various
other manufacturing places. Mozley & Whitley.
Also a place where a considerable number of factors
reside, in order to negotiate for their masters or employers.
Enc. Brit.
Scotch Law
A species of contract or employment which falls
under the general designation of "agency," but
which partakes both of the nature of a mandate
and of a bailment of the kind called "locatio ad
operandum." 1 Bell, Comm. 259.
FACTUM. Lat. With respect to change of domicile, "factum" is person's physical presence in new
domicile. Guilfoil v. Hayes, 169 Va. 548, 194 S.E.
804, 807.
FACTORY ACTS. Laws enacted for the purpose
of regulating the hours of work, and the sanitary
condition, and preserving the health and morals,
of the employes, and promoting the education of
young persons employed at such labor.
FACTORY PRICES. The prices at which goods
may be bought at the factories, as distinguished
from the prices of goods bought in the market
after they have passed into the hands of third
persons or shop-keepers. Whipple v. Levett, 2
Mason, 90, Fed.Cas.No.17,518.
FACTORY RATING. Of carrying capacity of
motortrucks as used in statute imposing license
fee means customary public announcement of
manufacturer in placing motortrucks on market.
Memphis Steam Laundry Co. v. Crenshaw, 166
Tenn. 168, 61 S.W.2d 669.
FACTS. See Fact.
FACTS INCOMPLETE. A certificate of trial
judge to bill of exceptions not certifying to correctness of any recital therein and only certifying that
the bill "is facts incomplete", that is, not finished,
not perfect, defective, verifies nothing and brings
nothing before the Court of Appeals for review.
Loving v. Kamm, 34 N.E.2d 591.
FACTS OF THE CASE. With which Supreme
Court will deal in case brought from Court of
Appeal by writ of review, are facts that were
proved or admitted, not deductions or conclusions
as to duty of parties or negligence. Llorens v.
McCann, 187 La. 642, 175 So. 442, 444.
FACTS WELL PLEADED are those of a substantive nature necessary to the framing of the issue
submitted. Bushman v. Barlow, 321 Mo. 1052, 15
S.W.2d 329, 331.
Civil Law. Fact; a fact; a matter of fact, as distinguished from a matter of law. Dig. 41, 2, 1, 3.
French Law. A memoir which contains concisely
set down the fact on which a contest has happened, the means on which a party founds his
pretensions, with the refutation of the means of
the adverse party. Vicat.
Old English Law. A deed; a person's act and
deed. A culpable or criminal act; an act not
founded in law. Anything stated or made certain; a deed of conveyance; a written instrument
under seal: called, also, charta. Spelman; 2 Bla.
Comm. 295. A fact; a circumstance; particularly a fact in evidence. Bract. fol. lb. Factum probandum (the fact to be proved). 1 Greenl. Ev. §
13.
Old European Law. A portion or allotment of
land; otherwise called a hide, bovata, etc. Spelman.
Testamentary Law. The execution or due execution of a will. The factum of an instrument means
not barely the signing of it, and the formal publication or delivery, but proof that the party well
knew and understood the contents thereof, and
did give, will, dispose, and do, in all things, as in
the said will is contained. Weatherhead v. Baskerville, 11 How. 354, 13 L.Ed. 717.
FACTUM A JUDICE QUOD AD EJUS OFFICIUM
NON SPECTAT NON RATUM EST. An action of
a judge which relates not to his office is of no
force. Dig. 50, 17, 170; 10 Coke, 76; Broom, Max.
93, n.
709
FACTUM
FACTUM CUIQUE SUUM NON ADVERSARIO,
NOCERE DEBET. Dig. 50, 17, 155. A party's
own act should prejudice himself, not his adversary.
FACTUM INFECTUM FIERI NEQUIT. A thing
done cannot be undone. 1 Kames, Eq. 96, 259.
FACTUM JURIDICUM. A juridical fact. Denotes
one of the factors or elements constituting an
obligation.
FACTUM NEGANTIS NULLA PROBATIO SIT.
Cod. 4, 19, 23. There is no proof incumbent upon
him who denies a fact.
"FACTUM" NON DICITUR QUOD NON PERSEVERAT. That is not called a "deed" which does
not continue operative. That is not said to be
done which does not last. 5 Coke, 96; Shep.
Touch., Preston ed. 391.
FACTUM PROBANDUM. Lat. In the law of
evidence. The fact to be proved; a fact which
is in issue, and to which evidence is to be directed.
1 Greenl. Ev. § 13.
FACTUM PROBANS. A probative or evidentiary
fact; a subsidiary or connected fact tending to
prove the principal fact in issue; a piece of circumstantial evidence.
FACTUM UNIUS ALTERI NOCERI NON DEBET.
Co. Litt. 152. The deed of one should not hurt another.
FACULTAS PROBATIONUM NON EST ANGUSTANDA. The power of proofs [right of offering
or giving testimony] is not to be narrowed. 4
Inst. 279.
FACULTATIVE COMPENSATION is that which
operates by the will of the parties, when one of
them removes an obstacle preventing compensation, resulting from the dispositions of the law.
In re Interstate Trust & Banking Co., La.App.,
194 So. 35, 40, 42.
FACULTATIVE REINSURANCE. Under type
designated "facultative", the reinsurer has the option of accepting the tendered part of the original
insurer's risk. Lincoln Nat. Life Ins. Co. v. State
Tax Commission, 196 Miss. 82, 16 So.2d 369.
FACULTIES. In the law of divorce. The capability of the husband to render a support to the
wife in the form of alimony, whether temporary
or permanent, including not only his tangible
property, but also his income and his ability to
earn money. 2 Bish. Mar. & Div. § 446; Lovett v.
Lovett, 11 Ala. 763; Wright v. Wright, 3 Tex. 168;
Fowler v. Fowler, 61 Okl. 280, 161 P. 227, 230, L.
R.A.1917C, 89. See Allegation of Faculties.
FACULTIES, COURT OF. In English ecclesiastical law. A jurisdiction or tribunal belonging to
the archbishop.
It does not hold pleas in any suits, but creates rights to
pews, monuments, and particular places, and modes of
burial. It has also various powers under 25 Hen. VIII. c.
21, in granting licenses of different descriptions, as a license
to marry, a faculty to erect an organ in a parish church,
to level a church-yard, to remove bodies previously buried.
4 Inst. 337.
FACULTIES, MASTER OF THE. An official in
the archdiocese of Canterbury who granted dispensations. 4 Inst. 337. See Arches Court.
FACULTY.
Ecclesiastical Law. A license or authority; a
privilege granted by the ordinary to a man by
favor and indulgence to do that which by law he
may not do; e. g., to marry without banns, to
erect a monument in a church, etc. Termes de la
Ley.
Faculties are of two kinds : first, when the grant is to a
man and his heirs in gross; second, when it is to a person
and his heirs as appurtenant to a house which he holds in
the parish; 1 Term 429, 432; 12 Co. 106.
Scotch Law. A power founded on consent, as distinguished from a power founded on property.
2 Karnes, Eq. 265.
FACULTY OF A COLLEGE OR UNIVERSITY.
The corps of professors, instructors, tutors, and
lecturers. To be distinguished from the board of
trustees, who constitute the corporation.
The teaching body. West v. Board of Trustees
of Miami University and Miami Normal School,
41 Ohio App. 367, 181 N.E. 144, 150.
FACULTY OF ADVOCATES. The college or society of advocates in Scotland.
FADE THE GAME. Means that spectators of a
game of "craps" bet on the success of actual participants. Sullivan v. State, 146 Tex.Cr.R. 79, 171
S.W.2d 353.
FADERFIUM. In old English law. A marriage
gift coming from the father or brother of the
bride. Spelman.
FZEDER-FEOH. In old English law. The portion brought by a wife to her husband, and which
reverted to a widow, in case the heir of her deceased husband refused his consent to her second
marriage; i. e., it reverted to her family in case
she returned to them. Wharton.
FIESTING-MEN. Approved men who were
strong-armed; habentes homines or rich men, men
of substance; pledges or bondsmen, who, by Saxon custom, were bound to answer for each other's
good behavior. Cowell; Du Cange.
FAGGOT. A badge worn in popish times by persons who had recanted and abjured what was then
adjudged to be heresy, as an emblem of what they
had merited. Cowell.
FAGGOT VOTE. A term applied to votes manufactured by nominally transferring land to persons otherwise disqualified from voting for members of parliament.
A faggot vote occurs where a man is formally possessed
of a right to vote for members of parliament, without possessing the substance which the vote should represent; as
if he is enabled to buy a property, and at the same moment
mortgage it to its full value, for the mere sake of the vote.
See 7 & 8 Wm. III. c. 25, § 7. Wharton.
FAIDA. In Saxon law. Malice; open and deadly hostility; deadly feud.
The word designated the enmity between the family of a
murdered man and that of his murderer, which was recognized, among the Teutonic peoples, as justification for
vengeance taken by any one of the former upon any one
of the latter. Du Cange; Spelman.
710
FAILURE OF CONSIDERATION
FAILLITE. In French law. Bankruptcy; failure; the situation of a debtor who finds himself
unable to fulfill his engagements. Code de Com.
arts. 442, 580; Civil Code La. art. 3556, No. 11; 3
Masse, Droit Comm. 171; Guyot, R6pert.
FAIL. Fault, negligence, or refusal. Walker v.
Sheffield Steel Corporation, 224 Mo.App. 849, 27
S.W.2d 44, 48; Anderson v. Commercial Credit
Co., 110 Mont. 333, 101 P.2d 367, 369.
It also means:
Involuntarily to fall short of success or the attainment of
one's purpose. See Cobb v. Morrison, 197 Ala. 550, 73 So.
42; Pennsylvania Co. v. Good, 56 Ind.App. 562, 103 N.E.
672, 673; lapse, Gredig v. Sterling, C.C.A.Tex., 47 F.2d 832,
834; Wilmington Trust Co. v. Wilmington Trust Co., 25
Del.Ch. 204, 15 A.2d 830, 834; to become insolvent and
unable to meet one's obligations as they mature. Davis v.
Campbell, 3 Stew., Ala., 321; Mayer v. Hermann, 16 Fed.
Cas. 1,242; to come short of ; lack; to prove ineffective or
inoperative; to become or be found deficient or wanting,
In re Merritt's Will, 14 N.Y.S.2d 103, 107, 171 Misc. 812; to
decline, Buffalo County v. Phelps County, 129 Neb. 268, 261
N.W. 360; to keep or cease from an appointed, proper,
expected, or required action, Romero v. Department of
Public Works, 17 Ca1.2d 189, 109 P.2d 662, 665; to lapse, as
a legacy which has never vested or taken effect, Sherman
v. Richmond Hose Co., No. 2, 230 N.Y. 462, 130 N.E. 613;
to leave unperformed; to omit; to neglect; to be wanting
in action, Buffalo County v. Phelps County, 129 Neb. 268,
261 N.W. 360; A. Widemann Co. v. Digges, 21 Cal.App.
342, 131 P. 882, 883; Ginnochio v. Hydraulic Press Brick
Co., D.C.Ohio, 266 F. 564, 569.
The difference between "fail" and "refuse" is that the
latter involves an act of the will, while the former may be
an act of inevitable necessity. Taylor v. Mason, 9 Wheat.
344, 6 L.Ed. 101. See Stallings v. Thomas, 55 Ark. 326, 18
S.W. 184; Persons v. Hight, 4 Ga. 497; Maestas v. American Metal Co. of New Mexico, 37 N.M. 203, 20 P.2d 924,
928.
The words "fail to comply," however, have in general
the same operation in law as the words "refuse to comply." Ginnochio v. Hydraulic Press Brick Co., D.C.Ohio,
266 F. 564, 569. And an allegation in an indictment that
defendant "failed and refused" to comply with a statute
should not be expanded to carry the implication that there
was a deliberate, intentional, and inexcusable refusal, especially where the indictment is not good without such expansion. Mackey v. U. S., C.C.A.Tenn., 290 F. 18, 21.
The term may imply an inopportunity to act. Worthington Pump & Machinery Corporation v. City of Cudahy, 182
Wis. 8, 195 N.W. 717.
FAILING CIRCUMSTANCES. Insolvency, that
is, the lack of sufficient assets to pay one's debts.
Brown v. State, 71 Tex.Cr.R. 353, 162 S.W. 339, 346.
A person (or a corporation or institution) is said
to be in failing circumstances when he is about
to fail, that is, when he is actually insolvent and
is acting in contemplation of giving up his business because he is unable to carry it on. Appeal
of Millard, 62 Conn. 184, 25 A. 658; Utley v. Smith,
24 Conn. 310, 63 Am.Dec. 163.
A bank is in "failing circumstances" when, from any
cause, it is unable to pay its debts in the ordinary or
usual course of business, Sanders v. Owens, Mo.App., 47
S.W.2d 132, 134; when in state of uncertainty as to
whether it will be able to sustain itself, depending on
favorable or unfavorable contingencies, over which its
officers have no control. Graf v. Allen, 230 Mo.App. 721, 74
S.W.2d 61, 66.
FAILING OF RECORD. When an action is
brought against a person who alleges in his plea
matter of record in bar of the action, and avers to
prove it by the record, but the plaintiff saith nul
tiel record, viz., denies there is any such record,
upon which the defendant has a day given him
by the court to bring it in, if he fail to do it,
then he is said to fail of his record, and the plaintiff is entitled to sign judgment. Termes de la
Ley.
FAILS TO ATTEND AT THE TRIAL. Must be
such a prolonged absence and failure to attend as
to hinder and delay the orderly business of the
court. Smith v. State, 42 Okl.Cr. 308, 275 P. 1071,
1072.
FAILURE. Abandonment or defeat, State v.
Summers, 320 Mo. 189, 6 S.W.2d 883, 885. Deficiency, want, or lack; ineffectualness; inefficiency as measured by some legal standard; an unsuccessful attempt. State v. Butler, 81 Minn. 103,
83 N.W. 483; In re Moore, 79 Ind.App. 470, 138
N.E. 783. Lapse. Wilmington Trust Co. v. Wilmington Trust Co., 25 Del.Ch. 204, 15 A.2d 830,
834. See, also, Fail.
As used in municipal charter concerning "failure" to fill
certain office by certain methods, the term presupposes
efforts that had proved fruitless, and demands a bona fide
and seasonable attempt to select by such methods. Scott v.
Suitor, 103 Vt. 175, 152 A. 801, 802.
Discontinuance of business from insolvency, bankruptcy,
or the like. State v. Thompson, 333 Mo. 1069, 64 S.W.2d
277.
"Failure" of appeal tax court to reduce assessment giving right of appeal means failure to reduce after application by owner asking that assessment be reduced. Aejis
Co. v. Ray, 156 Md. 590, 144 A. 842, 844.
Insolvency. Goess v. A. D. H. Holding Corporation,
C.C.A.N.Y., 85 F.2d 72, 74.
"Failure" is not always synonymous with "insolvency."
State v. Tunnicliffe, 98 Fla. 731, 124 So. 279, 281.
Suspension or abandonment of business by a merchant,
manufacturer, bank, etc., in consequence of insolvency,
American Credit Indemnity Co. v. Carrolton Furniture Mfg.
Co., C.C.A.N.Y., 95 F. 115, 36 C.C.A. 671; Terry v. Calman,
13 S.C. 220; State v. Lewis, 42 La.Ann. 847, 8 So. 602.
The failure to note action for trial is a "neglect" or "failure" within practice rule relating to dismissal of action
without prejudice for want of prosecution. State ex rel.
Woodworth & Cornell v. Superior Court for King County, 9
Wash.2d 37, 113 P.2d 527, 530.
The neglect of any duty may be a "failure." See Christhilf v. City of Baltimore, 152 Md. 204, 136 A. 527, 528;
Washington v. State, 22 Okl.Cr. 69, 209 P. 967, 968. Compare, however, In re Green, 192 Cal. 714, 221 P. 903, 905.
But to constitute a statutory offense, such as the failure
to work on public roads, the term may imply willfulness
and the absence of sufficient excuse. Jones v. State, 7 Ala.
App. 180, 62 So. 306, 307.
FAILURE OF CONSIDERATION. As applied to
notes, contracts, conveyances, etc., this term
does not mean a want of consideration, but implies
that a consideration, originally existing and good,
has since become worthless or has ceased to exist
or been extinguished, partially or entirely. Shirk
v. Neible, 156 Ind. 66, 59 N.E. 281, 83 Am.St.Rep.
150; Williamson v. Cline, 40 W.Va. 194, 20 S.E.
920.
It means that sufficient consideration was contemplated
by the parties at time contract was entered into, but either
on account of some innate defect in the thing to be given or
nonperformance in whole or in part of that which the
promisee agreed to do or forbear nothing of value can be
or is received by the promisee. Holcomb v. Long Beach
Inv. Co., 129 Cal.App. 285, 19 P.2d 31, 36.
It occurs where the thing expected to be received by one
party and given by the other party cannot be or has not
711
FAILURE OF CONSIDERATION
been given without fault of the party contracting to give it.
Edmund D. Cook, Inc. v. Commercial Casualty Ins. Co., 15
N.J.Misc. 256, 190 A. 99, 101.
"Fraud" cannot be pleaded as defense to note on ground
that it amounts to "failure of consideration." Fraud is in.
Its essence a tort, while "failure of consideration" ordinarily involves no actionable wrong, but occurs by reason
of accident or mistake. Kothmann v. Southwest Co., Tex.
Civ.App., 92 S.W.2d 272, 276.
Want of consideration as synonymous or distinguishable
"Failure of consideration" is in fact simply a want of
consideration. Farrell v. Third Nat. Bank, 20 Tenn.App.
540, 101 S.W.2d 158, 163.
"Want of consideration" embraces transactions or
instances where no consideration was intended to pass
while "failure of consideration" implies that a valuable
consideration moving from obligee to obligor was contemplated. In re Conrad's Estate, 333 Pa. 561, 3 A.2d 697,
699; Rauschenbach v. McDaniel's Estate, 122 W.Va. 632,
11 S.E.2d 852, 854.
There is "want of consideration" when nothing of value
has ever been received, and "failure of consideration"
where something of value was originally received which
has since lost its value. Columbia Restaurant v. Sadnovick,
La.App., 157 So. 280, 282.
FAILURE OF EVIDENCE. Judicially speaking,
a total "failure of evidence" means not only the
utter absence of all evidence, but it also means a
failure to offer proof, either positive or inferential, to establish one or more of the many facts,
the establishment of all of which is indispensable
to the finding of the issue for the plaintiff. Cole
v. Hebb, 7 Gill & J., Md., 28.
FAILURE OF GOOD BEHAVIOR. Enumerated
in statute as ground for removal of a civil service
employee means behavior contrary to recognized
standards of propriety and morality, misconduct
or wrong conduct. State ex rel. Ashbaugh v.
Bahr, 68 Ohio App. 308, 40 N.E.2d 677, 680, 682.
FAILURE OF ISSUE. The failure at a fixed time,
or the total extinction, of issue to take an estate
limited over by an executory devise. A definite
failure of issue is when a precise time is fixed by
the will for the failure of issue, as in the case
where there is a devise to one, but if he dies without issue or lawful issue living at the time of his
death, etc. An indefinite failure of issue is the
period when the issue or descendants of the first
taker shall become extinct, and when there is no
longer any issue of the issue of the grantee, without reference to any particular time or any particular event. 4 Kent, Comm. 275; Huxford v.
Milligan, 50 Ind. 546; Parkhurst v. Harrower, 142
Pa. 432, 21 A. 826, 24 Am.St.Rep. 507; Woodlief
v. Duckwall, 19 Ohio Cir.Ct.R. 564.
A "failure of proof"' consists in failure to prove the
cause of action or defense in its entire scope and meaning. Breslin-Grifiltt Carpet Co. v. Asadorian, Mo.App., 145
S.W.2d 494, 496.
An omission of a material fact from special finding is
deemed a "failure of proof". Kelley, Glover & Vale v.
Heitman, 220 Ind. 625, 44 N.E.2d 981, 984.
As used in a statute authorizing dismissal of suit without prejudice on account of failure of proof, the term does
not mean failure to convince the court by preponderance
of evidence, but failure to make prima facie case. Crim v.
Thompson, 112 Or. 399, 229 P. 916, 920; Wolke v. Schmidt,
112 Or. 99, 228 P. 921, 923.
Under a statute pertaining to variance, a "failure of
proof" results when the evidence offered so far departs
from the cause of action pleaded that it may be said fairly
that the allegations of the pleading in their general scope
and meaning are unproved. Chealey v. Purdy, 54 Mont.
489, 171 P. 926, 927; Nelson v. Dowgiallo, 73 Or. 342, 143
P. 924, 925.
Where evidence is such as would support either of two
contradictory inferences, or presumptions, respecting the
ultimate facts, there is a "failure of proof". Muesenfechter
v. St. Louis Car Co., Mo.App., 139 S.W.2d 1102, 1106.
Where time is not of essence of offense, showing that
crime, which information alleged was committed "on or
about" certain day, was committed on next day, was not a
failure of proof, even had words "on or about" been omitted. State v. Woodall, Mo., 300 S.W. 712, 713.
FAILURE OF RECORD. Failure of the defendant to produce a record which he has alleged and
relied on in his plea.
See Failing of Record.
FAILURE OF TITLE. The inability or failure of
a vendor to make good title to the whole or a part
of the property which he has contracted to sell.
See Alger-Sullivan Lumber Co. v. Union Trust
Co., 207 Ala. 138, 92 So. 254, 257.
FAILURE OF TRUST. The lapsing or nonefficiency of a proposed trust, by reason of the defect
or insufficiency of the deed or instrument creating it, or on account of illegality, indefiniteness,
or other legal impediment.
FAILURE OTHERWISE THAN UPON MERITS.
Imports some action by court by which plaintiff is
defeated without a trial upon the merits. Kimberlin v. Stoley, 49 Ohio App. 1, 194 N.E. 885.
FAILURE TO ACT. Under statute setting up
system of classification of offices and giving incumbent right to an administrative appeal in case
of any failure to act by officers in charge of the
classification plan, the words "failure to act" referred to duties in connection with classification
of offices. Dolan v. Suffolk County, 310 Mass.
318, 37 N.E.2d 998, 1000.
FAILURE OF JUSTICE. The defeat of a particular right, or the failure of reparation for a particular wrong, from the lack or inadequacy of a
legal remedy for the enforcement of the one or
the redress of the other. The term is also colloquially applied to the miscarriage of justice which
occurs when the result of a trial is so palpably
wrong as to shock the moral sense.
FAILURE TO BARGAIN COLLECTIVELY. An
employer's refusal to discuss with union, as employees' bargaining agency, questions involving
conditions of employment and interpretation of
contract constituted a "failure to bargain collectively" with union. Rapid Roller Co. v. National
Labor Relations Board, C.C.A.7, 126 F.2d 452, 459.
FAILURE OF PROOF. In this phrase, the word
"failure" is of broader significance than either
"want" or "lack." State v. Davis, 154 La. 295, 97
So. 449, 456.
FAILURE TO COOPERATE. Material or intentional, or fraudulent variations of statements, of
assured's driver as given at trial and before trial
would constitute failure to co-operate with auto-
712
FAIR AND FEASIBLE
exhibition of agricultural and mechanical products. State
v. Long, 46 Ohio St. 509, 28 N.E. 1038.
A fair is usually attended by a greater concourse of people than a market, for the amusement of whom various
exhibitions are gotten up. McCulloch, Comm.Dict.; Wharton, Dict.
A fair is a franchise which is obtained by a grant from
the crown. 2d Inst. 220; 3 Mod. 123; 1 Ld.Raym. 341; 2
Saund. 172; 1 Rolle, Abr. 106; Tomlin; Cunningham, Law
Dict.
In the earlier English law, the franchise to hold a fair
conferred certain important privileges; and fairs, as
legally recognized institutions, possessed distinctive legal
characteristics. Most of these privileges and characteristics, however, are now obsolete. In America, fairs, in the
ancient technical sense, are unknown, and, in the modern
and popular sense, they are entirely voluntary and nonlegal, and transactions arising in or in connection with
them are subject to the ordinary rules governing sales, etc.
mobile insurance company. Brooks Transp. Co.
v. Merchants' Mut. Casualty Co., 6 W.W.Harr. 40,
171 A. 207.
FAILURE TO LOOK. A failure to see an object
within range of vision is equivalent. Brooks v.
City of Ste. Genevieve, Mo.App., 164 S.W.2d 164,
168.
FAILURE TO MAKE DELIVERY. Misdelivery
is "failure to make delivery". Coos Bay Amusement Co. v. American Ry. Express Co., 129 Or.
216, 277 P. 107, 109. Nondelivery is "failure to
make delivery". Mt. Arbor Nurseries v. American
Ry. Express Co., 221 Mo.App. 241, 300 S.W. 1051,
1053. This phrase is fully adequate to cover all
cases where delivery has not been made as required. Kahn v. American Railway Express Co.,
88 W.Va. 17, 106 S.E. 126, 128; Watts v. Southern
Ry. Co., 139 S.C. 516, 138 S.E. 290, 293; Georgia,
F. & A. Ry. Co. v. Blish Milling Co., 241 U.S. 190,
36 S.Ct. 541, 543, 60 L.Ed. 948.
FAIR, adj. Equitable as a basis for exchange;
reasonable; a fair value. Utah Assets Corporation v. Dooley Bros. Ass'n, 92 Utah 577, 70 P.2d
738, 741. Honest. East Bay Municipal Utility
Dist. v. Kieffer, 99 Cal.App. 240, 278 P. 476, 482.
Impartial, free from suspicion, bias, etc. Looney
v. Elliott, Tex.Civ.App., 52 S.W.2d 949, 952. Just;
equitable; even-handed; equal, as between conflicting interests.
FAILURE TO MEET OBLIGATIONS. Bank's
failure to pay depositors on demand constitutes
"failure to meet obligations" in most cases. State
of Ohio ex rel. Squire v. Union Trust Co. of Pittsburgh, 137 Pa.Super. 75, 8 A.2d 476, 480.
Where bank closed its doors and ceased to transact business or make transfers of capital stock, and thereafter
ordinary deposits could not be drawn out and checks in
process of collection were dishonored, returned unpaid, was
"failure to meet obligations". State of Ohio ex rel. Squire
v. Union Trust Co. of Pittsburgh, 137 Pa.Super. 75, 8 A.2d
476, 480.
FAIR ABRIDGMENT. In copyright law. An
abridgment consisting not merely in the arrangement of excerpts, but one involving real and substantial condensation of the materials by the exercise of intellectual labor and judgment. Folsom
v. Marsh, 9 Fed.Cas. 345.
FAILURE TO PERFORM. As regards reciprocal promises, allegation of defendant's "failure to
perform" when demanded is equivalent to allegation of "refusal to perform," unless performance
by plaintiff is condition precedent to cause of action. Brooks v. Scoville, 81 Utah 163, 17 P.2d 218,
220.
FAILURES IN REVENUE. Terms "casual deficits" and "failures in revenue," within provision
authorizing Legislature to contract debt to meet
such deficits, are synonymous. State Budget
Commission v. Lebus, 244 Ky. 700, 51 S.W.2d 965.
FAINT (or FEIGNED) ACTION. In old English.
practice. An action was so called where the party bringing it had no title to recover, although the
words of the writ were true; a false action was
properly where the words of the writ were false.
Litt. § 689; Co. Litt. 361.
FAINT PLEADER. A fraudulent, false, or collusive manner of pleading to the deception of a
third person.
FAIR, n. In English law. A greater species of
market; a privileged market. Cowell; Cunningham, Law Dict. It is an incorporeal hereditament,
granted by royal patent, or established by prescription presupposing a grant from the crown.
A public mart or place of buying or selling. 1
Bla.Comm. 274.
Though etymologically signifying a market for buying
and selling exhibited articles, it includes a place for the
FAIR AND EQUITABLE. A proposed plan to
dissolve parent public utility holding company
and to reclassify its preferred and voting common
stock is "fair and equitable", if preferred stockholders' rights are transmuted into their equitable equivalents. In re Securities and Exchange
Commission, C.C.A.Del., 142 F.2d 411, 419.
As condition of confirmation under provisions of Bankruptcy Act relating to corporate reorganization, signify
that the final arrangement must conform to principle that
unsecured creditors are entitled to priority over stockholders to full extent of their debts and that any scaling down
of claims of creditors without fair compensating advantage
to them which is prior to rights of stockholders is inadmissible. Securities and Exchange Commission v. United
States Realty & Improvement Co., 310 U.S. 434, 60 S.Ct.
1044, 1051, 84 L.Ed. 1293; In re Janson Steel & Iron Co.,
D.C.Pa., 47 F.Supp. 652, 655, 656.
Statutory requirements of "fair and equitable" railroad
reorganization are satisfied so long as creditors receive full
compensatory treatment and each group shares in securities
of the whole enterprise on an equitable basis. Ecker v.
Western Pac. R. R. Corporation, 318 U.S. 448, 63 S.Ct. 692,
713, 87 L.Ed. 892.
FAIR AND EQUITABLE VALUE. In a contract
to purchase a waterworks plant at fair and equitable value, the amount is to be determined not by
capitalization of the earnings nor limited to the
cost of reproducing the plant, but allowance
should be made for the additional value created
by connection with and supply of buildings, although the company did not own the connections.
National Waterworks Co. V. Kansas City, Mo.,
62 F. 863.
FAIR AND FEASIBLE. As test in determining
whether corporate reorganization plan should be
713
FAIR AND FULL
approved means economically expedient, without • equal, and uniform basis with other property of
like character and value throughout the county
discrimination or destruction of vested rights. In
and state. Edward Hines Yellow Pine Trustees v.
re Stanley Drug Co., D.C.Pa., 22 F.Supp. 664, 665.
Knox, 144 Miss. 560, 108 So. 907, 911.
FAIR AND FULL EQUIVALENT FOR LOSS.
FAIR AND REASONABLE COMPENSATION.
The same as a full and perfect equivalent. FonFull compensation. Pfeiffer v. Schee, Mo.App.,
ticello Mineral Springs Co. v. City of Richmond,
107 S.W.2d 170, 175.
147 Va. 355, 137 S.E. 458, 460.
FAIR AND IMPARTIAL JURY means that every
member of the jury must be a fair and impartial
juror. City of San Antonio v. McKenzie Const.
Co., 136 Tex. 315, 150 S.W.2d 989, 993.
FAIR AND IMPARTIAL SYSTEM OF SEPARATION FROM SERVICE. Of employees of department of state involves specific reasons for removal
and reasonable hearing before some designated
and proper authority. Welch v. State Board of
Social Security and Welfare, 53 Ariz. 167, 87 P.2d
109, 112.
FAIR AND IMPARTIAL TRIAL. One where accused's legal rights are safeguarded and respected.
Floyd v. State, 166 Miss. 15, 148 So. 226, 232;
Raney v. Commonwealth, 287 Ky. 492, 153 S.W.
2d 935, 937, 938.
A fair and impartial trial by a jury of one's peers contemplates counsel to look after one's defense, compulsory
attendance of witnesses, if need be, and a reasonable time
in the light of all prevailing circumstances to investigate,
properly prepare, and present the defense. Christie v.
State, 94 Fla. 469, 114 So. 450, 451.
One wherein defendant is permitted to be represented by
counsel and neither witnesses nor counsel are intimidated.
George v. Kanape, 284 Ill.App. 648, 3 N.E.2d 149. One
wherein no undue advantage is taken by the district attorney or any one else. People v. Nationwide News Service,
16 N.Y.S.2d 277, 279, 172 Misc. 752. One wherein witnesses
of litigants are permitted to testify under rules of court
within proper bounds of judicial discretion, and under law
governing testimony of witnesses with right in parties to
testify, if qualified, and of counsel to be heard. Fessenden
v. Fessenden, 32 Ohio App. 16, 165 N.E. 746, 748.
Defendant has a "fair and impartial trial" when opportunity is given him to object and except to what is done
to his prejudice upon the trial. State v. Burns, 181 Iowa
1098, 165 N.W. 346, 347.
Such a trial contemplates a trial before a jury of 12
impartial and unbiased men, neither more nor less, in the
presence and under the superintendence of a judge having
the power to instruct them as to the law and advise them
in respect to the facts, and the establishment of guilt by a
unanimous verdict of such jury. Baker v. Hudspeth, C.C.A.
Kan., 129 F.2d 779, 782, 783. It contemplates counsel,
compulsory attendance of witnesses, and time in which to
prepare for trial. Wood v. State, 155 Fla. 256, 19 So.2d 872,
875. It excludes jurors who have an opinion on the merits
of the case, based on such testimony as may reasonably
be expected to be presented on the trial, or an opinion
founded on personal ill will towards the accused. Murphy
v. State, 72 Okl.Cr. 1, 112 P.2d 438, 453, 454. It includes a
reasonable opportunity to prepare for trial. Cruthirds v.
State, 190 Miss. 892, 2 So.2d 145, 146.
It requires that the jury of 12 men chosen to sit in judgment shall have no fixed opinion concerning the guilt or
innocence of one on trial. Baker v. Hudspeth, C.C.A.Kan.,
129 F.2d 779, 782, 783. There must not only be fair and
i mpartial jury, and learned and upright judge, but there
should be atmosphere of calm in which witnesses can
deliver their testimony without fear and intimidation, in
which attorneys can assert accused's rights freely and
fully, and in which the truth may be received and given
credence without fear of violence. Raney v. Commonwealth, 287 Ky. 492, 153 S.W.2d 935, 937, 938.
FAIR AND PROPER LEGAL ASSESSMENT.
Such as places the value of property on a fair,
FAIR AND REASONABLE CONTRACT. One
which, when made with an infant, must not be
one wasting the infant's estate, but must be a
provident one, advantageous to the minor. Berglund v. American Multigraph Sales Co., 135 Minn.
67, 160 N.W. 191, 193.
FAIR AND REASONABLE MARKET VALUE.
Under statute requiring determination of fair
and reasonable market value of mortgaged premises in connection with deficiency judgment,
means market value and should be determined by
those market conditions prevailing where willing
buyers meet willing sellers and deal on that basis.
Berkshire Life Ins. Co. of Pittsfield, Mass. v. Van
Voorhis, 245 App.Div, 592, 283 N,Y.S. 95, 97, 98.
FAIR AND REASONABLE TOLLS.
The term is
broad enough to include such fair and reasonable
charges as may be deemed "fair and reasonable"
for value of privilege the toll payer obtains for
his money in use of bridge. In re Tolls on St.
Johns River Bridge, 108 Fla. 172, 146 So. 99, 100.
FAIR AND REASONABLE VALUE. This
phrase in a statute imposing a tax on property
means the best price obtainable at a voluntary
sale, to be paid at once in money, and excluding
any additional amount that might be had were
credit or terms allowed. State v. Woodward, 208
Ala. 31, 93 So. 826.
Provision of statute for appraisal of farm debtor's property at "fair and reasonable value, not necessarily market
value," for purpose of discharging debtor from his obligations, means that market value is minimum value to be
found, beyond which other circumstances may be considered to arrive at "fair and reasonable value". Louisville Joint Stock Land Bank v. Radford, C.C.A.Ky., 74 F.2d
576, 582.
FAIR AND VALUABLE CONSIDERATION.
One which is a substantial compensation for the
property conveyed, or which is reasonable, in
view of the surrounding circumstances and conditions, in contradistinction to an adequate consideration. Jones v. Wey, 124 Okl. 1, 253 P. 291, 292;
Lucas v. Coker, 189 Okl. 95, 113 P.2d 589, 590.
FAIR CASH MARKET VALUE. Terms "cash
market value", "fair market value", "reasonable
market value" or "fair cash market value" are
substantially synonymous. Housing Authority of
Birmingham Dist. v. Title Guarantee Loan &
Trust Co., 243 Ala. 157, 8 So.2d 835, 837. Terms
"market value," "fair market value," "cash market value," and "fair cash market value" are synonymous. Fort Worth & D. N. Ry. Co. v. Sugg,
Tex.Civ.App., 68 S.W.2d 570, 572.
FAIR CASH VALUE. The phrase is practically
synonymous with "reasonable value," and "actual cash value," meaning the fair or reasonable
714
FAIR EQUIVALENT
cash price for which the property can be sold
on the market. Montesano Lumber & Mfg. Co. v.
Portland Iron Works, 94 Or. 677, 186 P. 428, 432;
State v. Woodward, 208 Ala. 31, 93 So. 826, 827.
The words "fair cash value" and the words "fair market
value" are frequently treated as synonymous. Commissioner of Corporations and Taxation v. Boston Edison Co.,
310 Mass. 674, 39 N.E.2d 584, 593.
"Fair cash value" of dissenting stockholder's stock is the
intrinsic worth of the stock and not necessarily its market
price. Miller v. Canton Motor Coach, 58 Ohio App. 94, 16
N.E.2d 486, 488; Adams v. U. S. Distributing Corp., 184 Va.
134, 34 S.E.2d 244, 250, 162 A.L.R. 1227.
For tax purposes "fair cash value", means the
highest price the property would bring free of
incumbrances, at a fair and voluntary private
sale for cash. Commonwealth v. Sutcliffe, 287
Ky. 809, 155 S.W.2d 243, 245. The price that an
owner willing but not compelled to sell ought
to receive from one willing but not compelled to
buy. Assessors of Quincy v. Boston Consolidated
Gas Co., 309 Mass. 60, '34 N.E.2d 623, 626. The
price, that the property would bring at a voluntary
sale where the owner is ready, willing and able
to sell but not compelled to do so. In re 168
Adams Bldg. Corporation, C.C.A.I11., 105 F.2d 704,
708; People ex rel. McGaughey v. Wilson, 367
Ill. 494, 12 N.E.2d 5, 6; the price which some one
will pay for it in open market. Donovan v. City
of Haverhill, 141 N.E. 564, 565, 247 Mass. 69, 30
A.L.R. 358.
It is ascertained by a consideration of all elements making it attractive for valuable use to one under no compulsion to purchase, but yet willing to buy for a fair price,
attributing to each element of value the amount it adds to
the price likely to be offered by such a buyer. Massachusetts General Hospital v. Inhabitants of Belmont, 233 Mass.
190, 124 N.E. 21, 26.
Taxable "fair cash value", of annuity contract was to be
determined according to mortality tables. Evans v. Boyle
County Board of Sup'rs, 296 Ky. 353, 177 S.W.2d 137, 139.
Under corporate franchise tax statute, the term "fair
cash value" meant exchange value, Commissioner of Corporations and Taxation v. Boston Edison Co., 310 Mass. 674,
39 N.E.2d 584, 592, 593.
FAIR COMMENT. A term used in the law of
libel, applying to statements made by a writer
in an honest belief of their truth, relating to official acts, even though the statements are not
true in fact. People v. Hebbard, 96 Misc. 617, 162
N.Y.S. 80, 92. In a privileged communication the
words used, if defamatory and libelous, are excused, while in "fair comment" the words are not
a defamation and not libelous. Van Lonkhuyzen
v. Daily News Co., 203 Mich. 570, 170 N.W. 93, 99.
Defense of "fair comment" is not destroyed by circumstance that jury may believe that the comment is logically
unsound, but it suffices that a reasonable man may honestly entertain such opinion, on facts found. Cohalan v.
New York Tribune, 172 Misc. 20, 15 N.Y.S.2d 58, 60, 61.
"Fair comment" must be based on facts truly stated,
must not contain imputations of corrupt or dishonorable
motives except as warranted by the facts, and must be
honest expression of writer's real opinion. Cohalan v. New
York World-Telegram Corporation, 16 N.Y.S.2d 706, 712,
172 Misc. 1061; Hall v. Binghamton Press Co., 33 N.Y.S.2d
840, 848, 263 App.Div. 403.
Imputation to official of corrupt or dishonorable motives
is justified as "fair comment" if it is inference which fairminded man might reasonably draw from facts. Tanzer v.
Crowle y Pub. Corporation, 240 App.Div. 203, 268 N.Y.S.
620.
Mere exaggeration, slight irony, or wit, or all those
delightful touches of style going to make article readable,
do not push beyond limitations of fair comment. Briarcliff
Lodge Hotel v. Westchester Newspapers, 260 N.Y. 106, 183
N.E. 193, 197.
FAIR COMPETITION. Open, equitable, Just
competition, which is fair as between competitors
and as between any of them and his customers.
U. S. v. Sutherland, D.C.Mo., 9 F.Supp. 204, 205;
U. S. v. National Garment Co., D.C.Mo., 10 F.
Supp. 104, 107. Opposite of "unfair competition."
Wilentz v. Crown Laundry Service, 116 N.J.Eq.
40, 172 A. 331, 333; State on Complaint of Lief v.
Packard-Bamberger & Co., 123 N.J.L. 180, 8 A.2d
291, 293.
The words "fair competition" in National Industrial
Recovery Act do not include price fixing, since price regulation is the antithesis of competition, fair or otherwise.
Mississippi Valley Hardwood Co. v. McClanahan, D.C.
Tenn., 8 F.Supp. 388.
FAIR CONSIDERATION. A fair equivalent.
Farmers' Exchange Bank v. Oneida Motor Truck
Co., 202 Wis. 266, 232 N.W. 536, 538; Drury v.
State Capitol Bank of Eastern Shore Trust Co.,
163 Md. 84, 161 A. 176, 179. One which, under all
the circumstances, is honest, reasonable, and free
from suspicion, whether or not strictly "adequate"
or "full." Ferguson v. Dickson, C.C.A.N.J., 300
F. 961, 963. Payment of an antecedent debt. McDougal v. Central Union Conference Ass'n of
Seventh Day Adventists, C.C.A.Colo., 110 F.2d
939, 942. Pre-existing debt. In re Seim Const.
Co., D.C.Md., 37 F.Supp. 855, 858. Reasonable in
contractual sense, and free from suspicion of intent to evade inheritance tax, though not fraudulent. Phillips v. Gnichtel, C.C.A.N.J., 27 F.2d 662,
665.
In bankrhptcy law, one which is honest or free from
suspicion, or one actually valuable, but not necessarily
adequate or a full equivalent. Myers v. Fultz, 124 Iowa,
437, 100 N.W. 351.
Under Fraudulent Conveyance Law. An antecedent debt,
Klaseus v. Meester, 173 Minn. 468, 217 N.W. 593, 594; Barishefsky v. Cohen, 299 Mass. 360, 12 N.E.2d 832, 833; Hollander v. Gautier, 114 N.J.Eq. 485, 168 A. 860, 862; an
enforceable promise by grantee at time of transfer, Hollander v. Gautier, 114 N.J.Eq. 485, 168 A. 860, 861; full and
adequate consideration, Klaseus v. Meester, 173 Minn. 468,
217 N.W. 593, 594; good-faith satisfaction of an antecedent
debt, Bennett v. Rodman & English,' D.C.N.Y., 2 F.Supp.
355, 358; one which fairly represents the value of the property transferred, Bianco v. Lay, 313 Mass. 444, 48 N.E.2d
36, 40; one which is not disproportionate to the value of
the property conveyed. Buhl v. McDowell, 51 S.D. 603, 216
N.W. 346, 347; Klaseus v. Meester, 173 Minn. 468, 217 N.W.
593, 594; the test of "fair consideration", is whether conveyance, by debtor, which includes every payment of
money, renders the debtor execution proof. McCaslin v.
Schouten, 294 Mich. 180, 292 N.W. 696, 699.
FAIR DAMAGES are something more than nominal damages; and are even more than such damages as would compensate for injury suffered.
Gurfein v. Howell, 142 Va. 197, 128 S.E. 644, 646.
FAIR EQUIVALENT. As used in statute providing that fair consideration is given for property
exchanged at fair equivalent means value at time
of conveyance; "equivalent" means equal in
worth or value; "fair" means equitable as a basis
for exchange; reasonable; a fair value. Utah
715
FAIR EQUIVALENT
Assets Corporation v. Dooley Bros. Ass'n, 92 Utah
577, 70 P.2d 738, 741.
As used in Uniform Fraudulent Conveyance Law does not
mean that adequacy of consideration is to be determined by
weighing value of goods sold and price received in very
precise scales. Bianco v. Lay, 313 Mass. 444, 48 N.E.2d
36, 40.
The test to be used in determining what constitutes a
"fair equivalent" under Fraudulent Conveyance Act, for
conveyance by debtor, is whether the conveyance, which
includes every payment of money, renders the debtor execution proof. McCaslin v. Schouten, 294 Mich. 180, 292 N.W.
696, 699.
FAIR REARING.
One in which authority is fairly exercised; that is, consistently with the fundamental principles of justice embraced within the
conception of due process of law. U. S. ex rel.
Dean, for and on behalf of Mahfood, v. Reynolds,
D.C.Ind., 2 F.Supp. 290, 291.
A hearing before the immigration authorities is "fair"
if conducted with due regard to those rights of the alien
that are embraced in the phrase "due process of law".
United States ex rel. Eng Fon Sing v. Reimer, D.C.N.Y.,
30 F.Supp. 602, 604.
Although rules of evidence and of procedure have not
been strictly followed a hearing may be "fair." Ex parte
Bridges, D.C.Cal., 49 F.Supp. 292, 306; U. S. ex rel. Shaw
v. Van De Mark, D.C.N.Y., 3 F.Supp. 101, 102.
Fair hearing of an alien's right to enter the United
States means a hearing before the immigration officers in
accordance with the fundamental principles that inhere in
due process of law, and implies that alien shall not only
have a fair opportunity to present evidence in his favor,
but shall be apprised of the evidence against him, so that
at the conclusion of the hearing he may be in a position
to know all of the evidence on which the matter is to be decided; it being not enough that the immigration officials
meant to be fair. Ex parte Petkos, D.C.Mass., 212 F. 275,
277. See, also, Ex parte Keisuki Sata, D.C.Cal., 215 F. 173,
176.
The obligation of a local draft board to grant a registrant
a "fair hearing" on matter of classification does not mean
a trial by court or a trial in strict or formal sense. Rase
v. United States, C.C.A.Mich., 129 F.2d 204, 210; Seele v.
U. S., C.C.A.Mo., 133 F.2d 1015, 1022.
The test of a "fair hearing" before the National Labor
Relations Board is whether the issues were clearly
defined, so that the employer could address itself to the
charges made against it. National Labor Relations Board
v. Air Associates, C.C.A.2, 121 F.2d 586, 591.
Where students were charged with sale of examination
papers and expelled, a "fair hearing" did not contemplate
a trial as in a chancery court or court of law. State ex
rel. Sherman v. Hyman, 180 Tenn. 99, 171 S.W.2d 822, 826.
FAIR KNOWLEDGE OR SKILL. A
reasonable
degree of knowledge or Measure of skill. Jones
v. Angell, 95 Ind. 382.
FAIR MARKET PRICE
means not only that the
price be ascertained by sales, but that the sales
so made and the subject-matter of the sales are
to be considered. In re Spitly's Estate, 124 Cal.
App. 642, 13 P.2d 385, 386.
For inheritance tax purposes, "clear market price" Is
synonymous with "fair market price." In re Spitly's Estate, 124 Cal.App. 642, 13 P.2d 385, 386.
For tax purposes, means price fixed by manufacturer
for sale of its products where there is no market price other than price so fixed. Bourjois, Inc., v. McGowan, D.C.N.
Y., 12 F.Supp. 787, 792.
Within statute governing valuation of property for assessment of income tax, resultant of two opposing views of
willing seller and willing buyer where seller is not compelled to sell and buyer is not required to buy. Vale v.
du Pont, Del., 7 W.W.Harr. 254, 182 A. 668, 673, 674, 103 A.
L.R. 946.
Ordinarily, "actual cash value," "fair market price,"
and "market value" are synonymous terms. Butler v.
1Etna Ins. Co. of Hartford, Conn., 64 N.D. 764, 256 N.W.
214.
FAIR MARKET VALUE. Price at which a willing seller and a willing buyer will trade. Montrose Cemetery Co. v. Commissioner of Internal
Revenue, C.C.A.7, 105 F.2d 238, 242; Utah Assets
Corporation v. Dooley Bros. Ass'n, 92 Utah 577,
70 P.2d 738, 741.
It has also been defined to mean : Amount that would in
all probability have been arrived at between owner willing
to sell and purchaser desiring to buy, Karlson v. U. S.,
C.C.A.Minn., 82 F.2d 330, 337; Whitlow v. Commissioner
of Internal Revenue, C.C.A.8, 82 F.2d 569, 572; exchangeable value, Walls v. Commissioner of Internal Revenue, C.
C.A.Wyo., 60 F.2d 347, 350; price at which a willing seller
under no compulsion and a willing buyer under no compulsion will trade, Rheinstrom v. Willcuts, D.C.Minn., 26 F.
Supp. 306, 310; State ex rel. Farmers & Merchants State
Bank v. Schanke, 247 Wis. 182, 19 N.W.2d 264, 267; Talbot
v. City of Norfolk, 158 Va. 387, 163 S.E. 100, 101; price at
which specified quantity of a given economic good is actually sold, or general or future power in exchange,
Jenkins v. Smith, D.C.Conn., 21 F.Supp. 251, 253; price
such as a capable and diligent business man could presently obtain from the property after conferring with those accustomed to buy such property, Appeal of Hickey, 124 Pa.
Super. 213, 188 A. 95, 96; price which a willing purchaser
would pay a willing seller, Ozette Ry. Co. v. Grays Harbor
County, 16 Wash.2d 459, 133 P.2d 983, 988; Baetjer v. United States, C.C.A.Puerto Rico, 143 F.2d 391, 396; price
which property would bring at a fair sale between parties
dealing on equal terms, Union Nat. Bank of Pittsburgh v.
Crump, 349 Pa. 339, 37 A.2d 733, 735; sum a purchaser
willing but not obliged to buy would pay an owner willing
but not obliged to sell, Appeal of Hickey, 124 Pa.Super. 213,
188 A. 95, 96; City of Tampa v. Colgan, 121 Fla. 218, 163
So. 577, 582; City of Tulsa v. Creekmore, 167 Okl. 298, 29
P.2d 101, 103; value in money as between one who wishes
to purchase and one who wishes to sell, Wood v. United
States, Ct.C1., 29 F.Supp. 853, 859, 860; Stiles v. Commissioner of Internal Revenue, C.C.A.Fla., 69 F.2d 951, 952.
"Fair market value" assumes agreement between owner willing but not obliged to sell for
cash and buyer desirous but not compelled to
purchase. Lewis v. Beall, 162 Md. 18, 158 A. 354,
356. It implies not only a willing buyer, but a
willing seller. Syracuse Engineering Co. v.
Haight, C.C.A.N.Y., 110 F.2d 468, 471. It means
neither panic value, auction value, speculative
value, nor a value fixed by depressed or inflated
prices. In re Board of Water Supply of City of
New York, 277 N.Y. 452, 14 N.E.2d 789, 792. It
resides in estimate and determination of what is
fair, economic, just and equitable value under
normal conditions. State ex rel. Buck v. Rapp,
Sup., 36 N.Y.S.2d 790, 794.
As of a certain date. Fair market value of a given dale
means amount stock is fairly worth as marketable security
Or equity to be bought and sold in course of business,
Robertson v. Routzahn, D.C.Ohio, 1 F.Supp. 355, 356; price
that could actually have been realized on that date, Jenkins
v. Smith, D.C.Conn., 21 F.Supp. 251; price that probably
would have resulted had goods been exchanged between
willing, informed, and normal buyer and similar seller,
Jenkins v. Smith, D.C.Conn., 21 F.Supp. 251; price that
property would bring at voluntary sale to willing buyer ;
both seller and buyer having adequate knowledge of material facts affecting value, Robertson v. Routzahn, C.C.A.
Ohio, 75 F.2d 537, 539; price which intelligent and reasonable buyers and sellers, having due regard for their mercenary interests, would have most likely agreed upon. Vale
v. State School Tax Department, 6 W.W.Harr. 252, 173 A.
795.
716
FAIR TRIAL
It resides in an estimate and a determination of what
is the fair, economic, Just, and equitable value under normal conditions. In re Board of Water Supply of City of
New York, 277 N.Y. 452, 14 N.E.2d 789, 792.
"Fair market value" of stock received by taxpayer in
payment of bonuses was value of stock received in extinguishment of bonus claims and not amount credited for
bonuses. Commissioner of Internal Revenue v. Vandeveer,
C.C.A.6, 114 F.2d 719, 722.
Primary evidence of "fair market value" of stock is
what willing purchasers pay to willing sellers on open
market. Hazeltine Corporation v. Commissioner of Internal Revenue, C.C.A.3, 89 F.2d 513, 518.
Synonymous or identical terms are :
Actual cash value. Stiles v. Commissioner of Internal
Revenue, C.C.A.Fla., 69 F.2d 951, 952; actual value, Appeals of Matson, 152 Pa.Super. 424, 33 A.2d 464, 465; cash
market value, West Texas Hotel Co. v. City of El Paso,
Tex.Civ.App., 83 S.W.2d 772, 775; Housing Authority of
Birmingham Dist. v. Title Guarantee Loan & Trust Co.,
243 Ala. 157, 8 So.2d 835, 837; cash value, Thomison v.
Hillcrest Athletic Ass'n, 9 W.W.Harr. 590, 5 A.2d 236, 238;
In re Ryerson's Estate, 239 Wis. 120, 300 N.W. 782, 784,
785; clear market value, In re Ryerson's Estate, 239 Wis.
120, 300 N.W. 782, 784, 785; fair cash market value, Housing
Authority of Birmingham Dist. v. Title Guarantee Loan &
Trust Co., 243 Ala. 157, 8 So.2d 835, 837; fair cash value,
Commissioner of Corporations and Taxation v. Boston Edison Co., 310 Mass. 674, 39 N.E.2d 584, 593; market value,
Fort Worth & D. N. Ry. Co. v. Sugg, Tex.Civ.App., 68 S.
W.2d 570, 572; United States v. 3969.59 Acres of Land, D.
C.Idaho, 56 F.Supp. 831, 837; reasonable market value,
Housing Authority of Birmingham Dist. v. Title Guarantee
Loan & Trust Co., 243 Ala. 157, 8 So.2d 835, 837; true cash
value, Appeals of Matson, 152 Pa.Super. 424, 33 A.2d 464,
465; value, United States v. 3969.59 Acres of Land, D.C.
Idaho, 56 F.Supp. 831, 837.
Value of i eal property for railroad purposes approximated by capitalizing net income considered with other
factors, may be accepted as indicative of "fair market value". Appeal of Pitney, 20 N.J.Misc. 448, 28 A.2d 660, 664.
FAIR ON ITS FACE. A tax deed "fair on its
face," is one which cannot be shown to be illegal
without extraneous evidence. Denny v. Stevens,
52 Wyo. 253, 73 P.2d 308, 310, 113 A.L.R. 1337.
A process fair on its face does not mean that it must
appear to be perfectly regular or in all respects in accord
with proper practice and after the most approved form, but
that it shall apparently be process lawfully issued and such
as the officer may lawfully serve, and a process is fair on
its face which proceeds from a court, magistrate, or body
having authority of law to issue process of that nature and
which is legal in form and on its face contains nothing to
notify or fairly apprise the officer that it is issued without
authority. Brown v. Hadwin, 182 Mich. 491, 148 N.W. 693,
L. R. A. 1915B, 505.
FAIR PERSUASION means argument, exhortation, or entreaty addressed to a person without
threat of physical harm or economic loss, or persistent molestation or harassment or material
and fraudulent misrepresentations. City of Reno
v.. Second Judicial District Court in and for Washoe County, 59 Nev. 416, 95 P.2d 994, 998, 125
A.L.R. 948.
FAIR–PLAY MEN. A local irregular tribunal
which existed in Pennsylvania about the year
1769, as to which see Serg. Land Laws Pa. 77; 2
Smith, Laws Pa. 195.
FAIR PLEADER. See Beau-pleader.
FAIR PREPONDERANCE. In the law of evidence. A "clear" preponderance. M. E. Smith
& Co. v. Kimble, 38 S.D. 511, 162 N.W. 162, 163.
Evidence sufficient to create in the minds of the
triers of fact the conviction that the party upon
whom is the burden has established its case.
Jackson Furniture Co. v. Lieberman, 65 R.1 224,
14 A.2d 27, 32. The greater and weightier evidence, the more convincing evidence. Barbero
v. Pellegrino, 108 N.J.L. 156, 156 A. 765. The
greater weight of the evidence. Belmont Hotel v.
New Jersey Title Guaranty & Trust Co., 22 N.J.
Misc. 261, 37 A.2d 681, 682. Weight, credit, and
value. Chenery v. Russell, 132 Me. 130, 167 A.
857, 858.
If evidence on any material allegation is equally balanced, verdict should be for defendant. Funk v. Bonham,
204 Ind. 170, 183 N.E. 312, 317.
Such a superiority of evidence on one side that the fact
of its outweighing the evidence on the other side can be
perceived if the whole evidence is fairly considered. Bryan
v. Railroad Co., 63 Iowa, 464, 19 N.W. 295; City Bank's
Appeal, 54 Conn. 274, 7 A. 548. Such evidence as when
weighed with that which is offered to oppose it, has more
convincing power in the minds of the jury. Neely V. Detroit Sugar Co., 138 Mich. 469, 101 N.W. 665, 666.
The probability of truth; In re Oliver's Will, 126 Misc.
511, 214 N.Y.S. 154, 166; not necessarily the largest number of witnesses; Verdi v. Donahue, 91 Conn. 448, 99 A.
1041, 1043; Chenery v. Russell, 132 Me. 130, 167 A. 857, 858.
The term conveys the idea of something more than a preponderance. Bryan v. Chicago, R. I. & P. Ry. Co., 63
Iowa, 464, 19 N.W. 295, 296; De St. Aubin v. Marshall Field
& Co., 27 Colo. 414, 62 P. 199, 201; The term is not a
technical term, but simply means that evidence which outweighs that which is offered to oppose it, and does not
necessarily mean the greater number of witnesses. Devencenzi v. Cassinelli, 28 Nev. 222, 81 P. 41, 42 (quoting and
adopting definition in Strand v. Chicago & N. M. Ry. Co.,
67 Mich. 380, 34 N.W. 712) ; Hynes v. Metropolitan St.
Ry. Co., 31 Misc. 825, 64 N.Y.S. 382, 383,
FAIR PRICE. The words "fair price" have been
held to be of an ascertainable valuation. McCormick v. Tissier, 222 Ala. 422, 133 So. 22, 24. For
"Fair Market Price," see that title.
FAIR RENT. A reasonable rent. Shapiro v.
Goldstein, 113 Misc. 258, 185 N.Y.S. 234,.
FAIR RETURN. A net return upon fair value
of property. State ex rel. City of St. Louis v.
Public Service Commission, 341 Mo. 920, 110 S.W.
2d 749, 778.
A "fair return" is to be largely measured by usual returns in like investments in the same vicinity over the
same period of time. Natural Gas Pipeline Co. of America
v. Federal Power Commission, C.C.A.7, 120 F.2d 625, 633,
634.
FAIR RETURN ON INVESTMENT. A fair return on value of property used and useful in carrying on the enterprise, performing the service
or supplying the thing for which the rates are
paid. Lubin v. Finkelstein, 82 N.Y.S.2d 329, 335.
FAIR SALE. In foreclosure and other judicial
proceedings, this means a , sale conducted with
fairness and impartiality as respects the rights
and interests of the parties affected. Lalor v.
McCarthy, 24 Minn. 419. A sale at a price sufficient to warrant confirmation or approval when it
is required.
FAIR TRIAL. A hearing by an impartial and
disinterested tribunal; a proceeding which hears
before it condemns, which proceeds upon inquiry,
717
FAIR TRIAL
•
and renders judgment only after trial. Johnson
v. City of Wildwood, 116 N.J.L. 462, 184 A. 616,
617.
A legal trial or one conducted in all material things in
substantial conformity to law. Stacey v. State, 79 Okl.Cr.
417, 155 P.2d 736, 739; A trial which insures substantial
justice, Capone v. Union County Park Commission, 9 N.J.
Misc.R. 1105, 156 A. 782, 783; A trial without prejudice to
the accused, State v. Smith, 119 W.Va. 347, 193 S.E. 573,
574; an orderly trial before an impartial jury, and judge
whose neutrality is indifferent to every factor in trial but
that of administering justice. State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 698, 115 A.L.R. 857. One conducted according to due course of law; a trial before a
competent and impartial jury. Railroad Co. v. Cook, 37
Neb. 435, 55 N.W. 943; Railroad Co. v. Gardner, 19 Minn.
136, Gil. 99, 18 Am.Rep. 334. One conducted according to
rules of common law except in so far as it has been changed
by statute. Di Maio v. Reid, 132 N.J.L. 17, 37 A.2d 829, 830.
One conducted in substantial conformity to law. Sunderland v. U. S., C.C.A.Neb., 19 F.2d 202, 216; People v.
Ephraim, 77 Cal.App. 29, 245 P. 769, 774. One where accused's legal rights are safeguarded and respected. Levinson v. Mooney, 128 N.J.L. 569, 27 A.2d 9, 10; Garrett v.
State, 187 Miss. 441, 193 So. 452, 458; Johnson v. City of
Wildwood, 116 N.J.L. 462, 184 A. 616.
A full and fair trial, required in order that a foreign
judgment against a citizen be accorded credit in the courts
of the United States, means not a summary proceeding,
though sanctioned by the law of the forum, but an opportunity to be heard on the proof, where it is apparent
that the cause involves questions of fact, and to have it
considered by an unprejudiced court. Banco Minero v.
Ross, 106 Tex. 522, 172 S.W. 711, 714.
Essential factors are a fair and impartial jury and a
learned and upright judge to instruct jury and pass upon
legal questions, and an atmosphere of calm in which witnesses can deliver their testimony without fear and intimidation, in which attorneys can assert defendant's rights
freely and fully, and in which truth may be received and
given credence without fear of violence, Floyd v. State,
166 Miss. 15, 148 So. 226, 232. A trial before an impartial
judge, an impartial jury, and in an atmosphere of judicial
calm; that, while the judge may and should direct and
control the proceedings, and may exercise his right to comment on the evidence, yet he may not extend his activities
so far as to become in effect either an assisting prpsecutor
or a thirteenth juror, Goldstein v. U. S., C.C.A.Mo., 63 F.2d
609, 613; an adequate hearing and an impartial tribunal,
free from any interest, bias, or prejudice. The Reno, C.C.
A.N.Y., 61 F.2d 966, 968.
FAIR USAGE. The doctrine of "fair usage"
means that the matter which was under copyright
was neither copied nor adopted, but that the uncopyrightable underlying idea was used, since a
theme or idea is not copyrightable. Towle v. Ross,
D.C.Or., 32 F.Supp. 125, 127.
FAIR VALUATION. Present market value; such
sum as the property will sell for to a purchaser
desiring to buy, the owner wishing to sell; such
a price as a capable and diligent business man
could presently obtain from the property after
conferring with those accustomed to buy such
property; the amount the property would bring at
a sale on execution shown to have been in all
respects fair and reasonable; the fair market
value of the property as between one who wants
to purchase and one who wants to sell the prop.
erty. Market St. Nat. Bank v, Huff, 319 Pa. 286,
179 A. 582, 583.
As used in Bankruptcy Act the term means fair cash
value or fair market value of property as between one who
wants to purchase and one who wants to sell, Harman v.
Defatta, 182 La. 463, 162 So. 44; Trenton Trust Co. v.
Carlisle Tire Corporation, 110 Conn. 125, 147 A. 366, 367;
fair market value, or value that can be made promptly ef-
fective by owner of property for payment of debts, NicolaiNeppach Co. v. Smith, 154 Or. 450, 58 P.2d 1016, 1019, 107
A.L.R. 1124; In re Sedalia Farmers' Coop. Packing &
Produce Co., D.C.Mo., 268 F. 898, 900; present market value of property and the value that the debtor might realize
thereon if permitted to continue in business, Arnold v.
Knapp, 75 W.Va. 804, 84 S.E. 895, 899; value of property
taken in relation to business of debtor as a going concern,
In re Gibson Hotels, D.C.W.Va., 24 F.Supp. 859, 863. It
is not the value that would or did prevail at sacrified or
forced sale. Bank of Forest v. Capital Nat. Bank, 176
Miss. 163, 169 So. 193, 198. Where no definite market value
can be established and expert testimony must be relied on,
fair valuation is the amount which the property ought to
give to a going concern as a fair return, if sold to some
one who is willing to purchase under ordinary selling conditions. In re Kobre, D.C.N.Y., 224 F. 106, 117. The term
is not synonymous with "salable value." In re Crystal
Ice & Fuel Co., D.C.Mont., 283 F. 1007, 1009.
In determining "fair valuation" of property, court should
consider all elements entering into the intrinsic value, as
well as the selling value, and also the earning power of the
property. In re Gibson Hotels, D.C.W.Va., 24 F.Supp. 859,
863; the "fair valuation" of accounts is what with reasonable diligence can be realized from their collection
within a reasonable time, Matthews v. Concrete Engineering Co., 228 Iowa 493, 292 N.W. 64, 65, 133 A.L.R. 1270.
FAIR VALUE. Present market value; such sum
as the property will sell for to a purchaser desiring to buy, the owner wishing to sell; such a price
as a capable and diligent business man could presently obtain from the property after conferring
with those accustomed to buy such property; the
amount the property would bring at a sale on
execution shown to have been in all respects fair
and reasonable; fair market value of the property as between one who wants to purchase
and one who wants to sell the property. Market
St. Nat. Bank v. Huff, 319 Pa. 286, 179 A. 582, 583.
"Actual value," "market value," "fair value," and the
like, may be used as convertible terms. Kerr v. Clinchfield Coal Corporation, 169 Va. 149, 192 S.E. 741, 744.
In determining depreciation, "fair value" implies consideration of all factors material in negotiating sale and purchase of property, such as wear, decay, deterioration, obsolescence, inadequacy, and redundancy. Idaho Power Co.
v. Thompson, D.C.Idaho, 19 F.2d 547, 566.
Price which a seller, willing but not compelled to sell,
would take, and a purchaser, willing but not compelled to
buy, would pay, Masonite Corporation v. Robinson-Slagle
Lumber Co., D.C.La., 3 F.Supp. 754, 755; U. S. v. Crary,
D.C.Va., 2 F.Supp. 870, 879. Price which buyers of the
class which would be interested in buying property would
be justified in paying for it. In re Crane's Estate, 344 Pa.
141, 23 A.2d 851, 855. Value which willing purchaser and
seller would likely agree on. In re Aranoff & Son, D.C.Ga.,
1 F.Supp. 708, 710.
As affecting stockholder's right to participate in reorganization plan, "fair value" of corporate debtor's property, connotes fair market value in dealing with certain
kinds of property, and in certain cases stock exchange
quotations are the best index of value, but bonds of Republic of Cuba, secured by apparently adequate pledges
of revenues, should be valued at par rather than market
price in absence of specific showing that Cuba might default. In re Warren Bros. Co., D.C.Mass., 39 F.Supp. 381,
384, 385.
Dissenting stockholder is entitled on combination or
merger of corporations to "fair value" of stock determined
by an ascertainment of all assets and liabilities of corporation, intrinsic value of stock, and not merely its market
value, when traded in by the public. American General
Corporation v. Camp, 171 Md. 629, 190 A. 225, 228.
For purpose of credit upon a deficiency claim arising out
of a mortgage foreclosure proceeding, that sum which
the mortgagee purchaser ought, under all circumstances,
reasonably expect to realize from the acquired premises
either by way of sale in the future or upon the basis of
718
FAITHFUL
a permanent investment. Fidelity Union Trust Co. v. Ritz
Holding Co., 126 N.J.Eq. 148, 8 A.2d 235, 245.
Reproduction cost of a public utility's property is an essential element in ascertainment of its "fair value". Peoples Natural Gas Co. v. Pennsylvania Public Utility Commission, 153 Pa.Super. 475, 34 A.2d 375, 380.
Under Deficiency Judgment Act, fair market value at
time of execution sale as based on testimony of qualified
witnesses. Market St. Nat. Bank v. Huff, 319 Pa. 286, 179
A. 582, 583.
Within a Revenue Act levying an excise tax on corporations measured by the fair value of their capital stock,
"fair value" is the exact equivalent of "actual value."
Central Union Trust Co. of New York v. Edwards, C.C.A.
N.Y., 287 F. 324, 327.
Within statute requiring fair value of mortgaged premises to be credited on mortgage debt, interest, and costs
before confirmation of foreclosure sale or rendition of deficiency judgment, that amount which under all circumstances of case will not shock conscience of court. Northwestern Loan & Trust Co. v. Bidinger, 226 Wis. 239, 276
N.W. 645, 648.
Rate Purposes
"Fair value" rule requires that consideration be given
to original cost of construction, amount expended in permanent improvements, amount and market value of bonds
and stock, present cost of construction, probable earning
capacity under rates prescribed, operating expenses, accrued depreciation, market value of land, working capital,
going concern value, and future costs of construction.
State ex rel. and to Use of City of St. Louis v. Public
Service Commission, 326 Mo. 751, 34 S.W.2d 507, 510.
A "fair value" for rate making is not the value for exchange, but such a value found after considering all relevant facts as will give the public utility a reasonable return and the public a reasonable rate. It is one which will
enable the public utility to realize the expense of operating
and keeping up its road and meeting its financial obligations for investments with a reasonable excess for dividends
and ordinary contingencies. City of Rochester v. New
York State Rys., 127 Misc. 766, 217 N.Y.S. 452, 458.
"Fair value" must include increase in value over original.
cost. Northern States Power Co. v. Public Service Commission, 73 N.D. 211, 13 N.W.2d 779, 786, 787.
"Fair value of the property" is not necessarily synonymous with "reconstruction cost depreciated." State ex rel.
Oregon-Washington Water Service Co. v. Department of
Public Works of Washington, 184 Wash. 45, 51 P.2d 610,
612.
Historical cost, provided consideration is given to changes
in price level, reproduction cost at time of inquiry, less
accrued depreciation, provided reproduction cost of components can be found with reasonable certainty, financial
history of utility, and other relevant facts, may be considered in determining "fair value" of a utility's property.
State v. Tri-State Telephone & Telegraph Co., 204 Minn.
516, 284 N.W. 294, 306.
Reproduction cost of a utility is an element in ascertainment of "fair value". Solar Electric Co. v. Pennsylvania
Public Utility Commission, 137 Pa.Super. 325, 9 A.2d 447,
456, 460, 463, 464, 466.
Reproduction cost of telephone company's property, less
actual depreciation, is not the legal equivalent of "fair
value" but is merely evidence of value. New York Telephone Co. v. Prendergast, D.C.N.Y., 36 F.2d 54, 59.
The book cost of a telephone company's exchange plant
b.nd the "reproduction cost new" basis are recognized
methods of ascertaining "fair value" of the company's
property. Application of Northwestern Bell Tel. Co., 69
S.D. 36, 6 N.W.2d 165, 169.
The "fair value" as a rate base and the "value" in
money for purposes of taxation of a public utility are not
necessarily the same. State ex rel. Public Service Commission v. Southern Pac. Co., 95 Utah 84, 79 P.2d 25, 34.
The "fair value" of a utility's property is the cost of
reproduction, less depreciation at time in question, whether
more or less than original cost. Citizens' Gas Co. of Hannibal v. Public Service Commission of Missouri, D.C.Mo.,
8 F.2d 632, 633. It is the reasonable value of property, used
and useful, for the service of the public at the time the
property is being so used. Northern States Power Co. v.
Board of Railroad Com'rs, 71 N.D. 1, 298 N.W. 423, 431.
Value of additions completed and in use by a utility
should be allowed in rate case in determining "fair value".
Northern States Power Co. v. Board of Railroad Com'rs,
71 N.D. 1, 298 N.W. 423, 431.
FAIRLY. Equitably, honestly, impartially. Looney v. Elliott, Tex.Civ.App., 52 S.W.2d 949, 952. In
good faith, People v. Mancuso, 255 N.Y. 463, 175
N.E. 177, 179. Justly; rightly. With substantial
correctness. Reasonably. Conway v. Robinson,
216 Ala. 495, 113 So. 531, 533. Equitably. Satcher
v. Satcher's Adm'r, 41 Ala. 40, 91 Am.Dec. 498.
"Fairly merchantable" conveys the idea of mediocrity in quality, or something just above it.
Warner v. Ice Co., 74 Me. 479.
"Fairly" is not synonymous with "truly," and "truly"
should not be substituted for it in a commissioner's oath,
to take testimony fairly. Language may be truly, yet unfairly, reported; that is, an answer may be truly written
down, yet in a manner conveying a different meaning from
tliat intended and conveyed. And language may be fairly
reported, yet not in accordance with strict truth. Lawrence v. Finch, 17 N.J.Eq. 234.
FAIRWAY. A strip of land, where the grass is
kept mowed, and at the opposite ends of which
are a green and a tee. Page v. Unterreiner, Mo.
App., 106 S.W.2d 528, 532.
The middle and deepest or most navigable channel.
Water on which vessels of commerce habitually move;
Horst v. Columbia Contract Co., 89 Or. 344, 174 P. 161, 163.
The word "thalweg" (q.v.), from which it is apparently derived, has reference more particularly to navigable
channels as boundaries. Johnnsson v. American Tugboat
Co., 147 P. 1147, 85 Wash. 212.
FAIT. L. Fr. Anything done. A deed; act;
fact.
A deed lawfully executed. Corn. Dig.
Ferne (or Femme) . de fait. A wife de facto.
FAIT ENROLLE. A deed enrolled, as a bargain
and sale of freeholds. 1 Keb. 568.
FAIT JURIDIQUE. In French law. A juridical
fact. One of the factors or elements constitutive
of an obligation.
FAITH. Confidence; credit; reliance. Thus, an
act may be said to be done "on the faith" of certain representations.
Belief ; credence; trust. Thus, the constitution provides
that "full faith and credit" shall be given to the judgments of each state in the courts of the others.
Purpose; intent; sincerity; state of knowledge or design. This is the meaning of the word in the phrases
"good faith" and "bad faith."
Scotch Law. A solemn pledge; an oath. "To
make faith" is to swear, with the right hand uplifted, that one will declare the truth. 1 Forb.
Inst. pt. 4, p. 235.
Trusty, honest, trustworthy.
FAITHFUL.
Wright v. Fidelity & Deposit Co. of Maryland, 176
Okl. 274, 54 P.2d 1084, 1087.
As used in the rule that executors must be "faithful,"
means that they must act in good faith. In re McCafferty's
Will, 147 Misc. 179, 264 N.Y.S. 38.
The guaranty required by statute and bond of "faithful"
discharge of school district treasurer's duties is a guaranty
not only of treasurer's personal honesty but also of his
719
FAITHFUL
competency, skill and diligence in discharge of his duties.
Thurston County, to Use of Vesely, v. Chmelka, 138 Neb.
696, 294 N.W. 857, 863, 132 A.L.R. 1077.
Where a public officer gives a bond for the "faithful"
discharge of his duties, "faithful" implies that he has assumed that measure of responsibility laid on him by law
had no bond been given. Thurston County, to Use of Vesely, v. Chmelka, 138 Neb. 696, 294 N.W. 857, 863, 132 A.L.R.
1077; London & Lancashire Indemnity Co. of America v.
Community Savings & Loan Ass'n, 102 Ind.App. 665, 4 N.E.
2d 688, 693.
FAITHFULLY. Conscientious diligence or faithfulness, adequate to due execution of object of
bailment, or just regard of adherence to duty, or
due observance of undertaking of contract. Commonwealth v. Polk, 256 Ky. 100, 75 S.W.2d 761, 765.
Diligently, and without unnecessary delay;—not
synonymous with "fairly" or "impartially." Den
v. Thompson, 16 N.J.L. 72, 73. Truthfully, sincerely, accurately. Kansas City, M. & 0. R. Co.,
of Texas v. Whittington & Sweeney, Tex.Civ.App.,
153 S.W. 689, 690.
As used in bonds of public and private officers, this term
imports not only honesty, but also a punctilious discharge
of all the duties of the office, requiring competence, diligence, and attention, without any malfeasance or nonfeasance, aside from mere mistakes. State v. Chadwick,
10 Or. 468; Hoboken v. Evans, 31 N.J.L. 343; Harris v.
Hanson, 11 Me. 245.
FAITOURS. Idle persons; idle livers; vagabonds. Termes de la Ley; Cowell; Blount; Cunningham, Law Dict.
FALCIDIAN LAW. In Roman law. A law on
the subject of testamentary disposition.
It was enacted by the people during the reign of Augustus, in the year of Rome 714, on the proposition of the
tribune Falcidius. By this law, the testator's right to burden his estate with legacies was subjected to an important
restriction. It prescribed that no one could bequeath more
than three-fourths of his property in legacies, and that
the heir should have at least one-fourth of the estate, and
that, should the testator violate this prescript, the heir
may have the right to make a proportional deduction from
each legatee, so far as necessary. Mackeld.Rom.Law, §
771; Inst. 2, 22; Heinecc.Elem. lib. 2, tit. 22.
A similar principle exists in Louisiana. See Legitime.
In some of the states the statutes authorizing bequests
and devises to charitable corporations limit the amount
which a testator may give, to a certain fraction of his
estate.
FALCIDIAN PORTION. That portion of a testator's estate which, by the Falcidian law, was
required to be left to the heir, amounting to at
least one-fourth.
FALD, or FALDA. A sheep-fold. Cowell.
FALDA. Span. In Spanish law. The slope or
skirt of a hill. Fossat v. United States, 2 Wall.
673, 17 L.Ed. 739.
FALDIE CURSUS. In old English law. A foldcourse; the course (going or taking about) of a
fold. Spelman. A sheep walk, or feed for sheep.
2 Vent. 139.
FAKE. To make or construct. A "faked alibi"
is a made, manufactured, or false alibi. U. S. v.
Heftier, D.C.I11., 274 F. 401, 409.
FAKER. A petty swindler. National Automobile Ass'n v. Strunk, 122 Neb. 890, 240 N.W. 294.
FAKIR. A term applied among the Mohammedans to a kind of religious ascetic or beggar,
whose claim is that he "is in need of mercy, and
poor in the sight of God, rather than in need of
worldly assistance." Hughes, Dict. of Islam.
Sometimes spelled Faqueer or Fakeer. It is commonly
used in English to designate a person engaged in some useless or dishonest business. Fake is also so used and also
to designate the quality of such business.
A street peddler who disposes of worthless wares, or of
any goods above their value, by means of any false representation, trick, device, lottery, or game of chance. Mills'
227.
1400, '35 C.S.A. c. 48,
Ann.St.Colo.
FALANG. In old English law. A jacket or close
coat. Blount.
FALCARE. In old English law. To mow. For
"Jus Folcandi", see that title.
Falcare prata, to mow or cut grass in meadows laid in
for hay. A customary service to the lord by his inferior
tenants. Kennett, Gloss.
Falcata, grass fresh mown, and laid in swaths. That
which was mowed. Kennett, Gloss.; Cowell; Jacobs.
Faicatio, a mowing. Bract. fols. 35b, 230.
Falcator, a mower; a servile tenant who performed the
labor of mowing.
Falcatura, a day's mowing. Falcatura una. Once mowing the grass.
FALCARIOUS. See Falsarius,
FALCIDIA. In Spanish law. The Falcidian portion; the portion of an inheritance which could
not be legally bequeathed away from the heir,
viz., one-fourth.
FALDAGE. The privilege which anciently several lords reserved to themselves of setting up
folds for sheep in any fields within their manors,
the better to manure them, and this not only with
their own but their tenants' sheep. Called, variously, "recta faldare," "fold-course," "free-hold,"
Cowell; Spelman; Cunningham,
"faldagii."
Law Dict.
FALDATA. In old English law. A flock or fold
of sheep. Cowell.
FALDFEY. Sax. A fee or rent paid by a tenant
to his lord for leave to fold his sheep on his own
ground. Blount; Cunningham, Law Dict,
FALDISDORY. In ecclesiastical law. The bishop's seat or throne within the chancel.
FALDSOCA.
Sax. The liberty or privilege of
foldage.
A place at the south side of the
altar at which the sovereign kneels at his coronation. Wharton.
A folding seat similar to a camp stool, made either of
wood or metal, sometimes covered with silk or other ma-
FALDSTOOL.
terial. It was used by a bishop when officiating in other
than his own cathedral church. Encyc.Dic.
FALDWORTH. In Saxon law. A person reckoned old enough to become a member of the decennary, and so subject to the law of frank-pledge.
Spelman; Du Fresne.
720
FALSE
described. Mere false description does not make
an instrument inoperative. Broom, Max. 629; 6
Term, 676; 11 Mees. & W. 189; Cleaveland v.
Smith, 2 Story, 291, Fed.Cas.No.2,874. See 1
Greenleaf, Evidence, § 301; 2 Pars. Contr. 62, n.;
4 C. B. 328; 14 C. B. 122; Sargent v. Adams, 3
Gray (Mass.) 78, 63 Am.Dec. 718.
FALERIE. In old English law. The tackle and
furniture of a cart or wain. Blount.
FALESIA. In old English law. A hill or down
by the sea-side. Co. Litt. 5b; Domesday.
FALK-LAND. See Folc-Land.
FALL, n. One of the four seasons of the year,
embracing the three months commencing with the
1st of September and terminating with the last
day of November. Rosenau v. Lansing, 113 Or.
638, 232 P. 648; Horn v. State, 19 Ala.App. 572,
99 So. 58. But a finding that certain persons occupied a house until the fall of each year has
been held ambiguous, since "fall" covers a period
of time of upward of three months. Clegg v.
Bishop, 105 Conn. 564, 136 A. 102, 104.
FALSA DEMONSTRATIONE LEGATUM NON
PERIMI. A bequest is not rendered void by an
erroneous description. Inst. 2, 20, 30; Broom,
Max. 645; Roman Catholic Orphan Asylum v.
Emmons, 3 Bradf. Sur., N.Y., 144, 149.
FALL, v. In Scotch law. To lose or loose. To
fall from a right is to lose or forfeit it. 1 Kames, Eq. 228.
As used in fire policy provision that if building or any
part thereof "fall," except as result of fire, all insurance
on contents of building should immediately cease, includes
any situation where building once erect lies prostrate.
Nalley v. Hanover Fire Ins. Co., 56 Ga.App. 555, 193 S.E.
619, 622.
The statute provision concerning holding of courts which
fall between January and June, both inclusive, includes
any term which begins in June, the word "fall" meaning
to come, become, occur, or arise. West v. F. W. Woolworth
Co., 214 N.C. 214, 198 S.E. 659, 660.
FALL OF LAND. In English law. A quantity of
land six ells square superficial measure.
FALSA MONETA. In the civil law. False or
counterfeit money. Cod. 9, 24.
FALSA ORTHOGRAPHIA NON VITIAT
CHARTAM, CONCESSIONEM. False spelling
does not vitiate a deed. Shep. Touch. 55, 87;
9 Coke, 48a; Wing. Max. 19; Bart. Max. 164.
FALSARE. In old English law. To counterfeit.
Quia falsavit sigillum, because he counterfeited
the seal. Bract. fol. 276b.
FALSARIUS (or FALCARIOUS). A counterfeiter. Townsh. PL 260.
FALLING. When the one object descends upon
the other, we do not speak of it as colliding with
the second, but as "falling" upon it. Atlas Assur.
Co. v. Lies, 70 Ga.App. 162, 27 S.E.2d 791, 794.
FALLO. In Spanish law. The final decree or
judgment given in a controversy at law.
FALLOPIAN TUBE. An essential part of the
female reproductive system, consisting of a narrow conduit, some four inches in length, that
extends on each side of a woman's body from the
base of the womb to the ovary upon that side.
Smith v. Board of Examiners of Feeble-Minded,
85 N.J.L. 46, 88 A. 936, 965.
FALLOW. Barren or unproductive. May v.
American Trust Co., 153 Cal.App. 385, 27 P.2d 101.
FALLOW-LAND. Land plowed, but not sown,
and left uncultivated for a time after successive
crops; land left untilled for a year or more.
FALLUM. In old English law. An unexplained
term for some particular kind of land. Cowell;
Jacob, L. Dic.
FALSA DEMONSTRATIO. In the civil law.
False designation; erroneous description of a person or thing in a written instrument. Inst. 2, 20,
30.
FALSA DEMONSTRATIO NON NOCET, CUM
DE CORPORE (PERSONA) CONSTAT. False
description does not injure or vitiate, provided the
thing or person intended has once been sufficiently
Black's Law Dictionary Revised 4th Ed.-46
FALSA GRAMMATICA NON VITIAT CONCESSIONEM. False or bad grammar does not vitiate
a grant. Shep. Touch. 55; 9 Coke, 48a. Neither
false Latin nor false English will make a deed
void when the intent of the parties doth plainly
appear. Shep. Touch. 87.
FALSE. Not true. State v. Arnett, 338 Mo. 907,
92 S.W.2d 897, 900; Sentinel Life Ins. Co. v. Blackmer, C.C.A.Colo., 77 F.2d 347, 352.
It also means:
Artificial. U. S. v. Darby, D.C.Md., 2 F.Supp. 378, 379;
Sentinel Life Ins. Co. v. Blackmer, C.C.A.Colo., 77 F.2d
347, 352; assumed or designed to deceive. Sentinel Life
Ins. Co. v. Blackmer, C.C.A.Colo., 77 F.2d 347, 352; North
American Accident Ins. Co. v. Tebbs, C.C.A.Utah, 107 F.2d
853, 855; contrary to fact. In re Davis, 349 Pa. 651, 37 A.
2d 498, 499; counterfeit, Sentinel Life Ins. Co. v. Blackmer,
C.C.A.Colo., 77 F.2d 347, 352; North American Accident
Ins. Co. v. Tebbs, C.C.A.Utah, 107 F.2d 853, 855; deceitful;
deliberately and knowingly false, People v. Mangan, 140
Misc. 783, 252 N.Y.S. 44, 52; designedly untrue, W. T.
Rawleigh Co. v. Brantley, 97 Miss. 244, 19 So.2d 808, 811,
157 A.L.R. 188; erroneous, Abel v. Paterno, 153 Misc. 248,
274 N.Y.S. 749; Gilbert v. Inter-Ocean Casualty Co. of
Cincinnati, Ohio, 41 N.M. 463, 71 P.2d 56, 59; hypocritical;
sham; feigned, Sentinel Life Ins. Co. v. Blackzrfer, C.C.A.
Colo., 77 F.2d 347, 352; North American Accident Ins. Co.
v. Tebbs, C.C.A.Utah, 107 F.2d 853, 855; incorrect, State
v. Arnett, 338 Mo. 907, 92 S.W.2d 897, 900; intentionally
untrue. In re Venturella, D.C.Conn., 25 F.Supp. 332, 333;
In re Cleveland, D.C.Mich., 40 F.Supp. 343; not according
to truth or reality. State v. Arnett, 338 Mo. 907, 92 S.W.
2d 897, 900; North American Accident Ins. Co. v. Tebbs,
C.C.A.Utah, 107 F.2d 853, 855; not genuine or real; U. S.
v. Darby, D.C.Md., 2 F.Supp. 378, 379; North American
Accident Ins. Co. v. Tebbs, C.C.A.Utah, 107 F.2d 853, 855;
uttering falsehood; unveracious; .given to deceit; dishonest, Wilensky v. Goodyear Tire & Rubber Co., C.C.A.
Mass., 67 F.2d 389, 390; wilfully and intentionally untrue.
In re Brown, D.C.N.Y., 37 F.Supp. 526, 527; North American Accident Ins. Co. v. Tebbs, C.C.A.Utah, 107 F.2d 853,
855.
Court's substitution in charge of term "fraudulent" in
place of term "false" held not misleading. Wood v. Williams, Tex.Civ.App., 46 S.W.2d 332, 334.
721
FALSE
In law, this word usually means something more than
untrue; it means something designedly untrue and deceitful, and implies an intention to perpetrate some treachery
or fraud. Hatcher v. Dunn, 102 Iowa, 411, 71 N.W. 343, 36
L.R.A. 689; Masofi. v. Association, 18 U.C.C.P. 19; State v.
Leonard, 73 Or. 451, 144 P. 113, 118; State v. Smith, 63 Vt.
201, 22 A. 604. It implies either conscious wrong or
culpable negligence, and signifies knowingly or negligently
untrue. United States v. Ninety-Nine Diamonds, C.C.A.
Minn., 139 F. 961, 72 C.C.A. 9, 2 L.R.A.,N.S., 185.
The word "false" has two distinct and well-recognized
meanings ; (1) intentionally or knowingly or negligently
untrue; (2) untrue by mistake or accident, or honestly aftet the exercise of reasonable care. Metropolitan Life Ins.
Co. v. Adams, D.C.Mun.App., 37 A.2d 345, 350. In jurisprudence, "false" and "falsely" are oftenest used to characterize a wrongful or criminal act, such as involves an error
or untruth, intentionally or knowingly put forward. A
thing is called "false" when it is done, or made, with
knowledge, actual or constructive, that it is untrue or illegal, or is said to be done falsely when the meaning is
that the party is in fault for its error. Fouts v. State,
113 Ohio St. 450, 149 N.E. 551, 554; Monahan v. Mutual
Life Ins. Co. of New York, 192 Wis. 102, 212 N.W. 269, 271.
The word "false" in its juristic use implies something
more than a mere untruth, Dombroski v. Metropolitan Life
Ins. Co., 126 N.J.L. 545, 19 A.2d 678, 680.
The word "false" sometimes connotes an intent to deceive, People v. Wahl, 39 Cal.App.2d Supp. 771, 100 P.2d
550, 551; Salt's Textile Mfg. Co. v. Ghent, 107 Conn. 211,
139 A. 694, 695.
which to meet the same, and which he had no
reason to believe would honor such check upon
presentation at said bank for payment, is obtaining money by use of a false check. Gunther v.
State, 42 Okl.Cr. 129, 276 P. 237, 238.
FALSE ACTION, See Feigned Action.
FALSE DEMONSTRATION. Where description
of person or thing in will is partly true and partly
false, if part which is true describes subject or
object of gift with sufficient certainty, untrue part
may be rejected and gift sustained, under doctrine
of "false demonstration." In re Heins' Estate, 132
Cal.App. 131, 22 P.2d 549.
FALSE CLAIM, in the forest law, was where a
man claimed more than his due, and was amerced
and punished for the same. Manw. c. 25; Tomlins.
As used in a statute making it a felony to present to
any state, county, or city board or officer a false or fraudulent claim, a "false claim" is something more than a merely excessive claim. Burke v. Knox, 59 Utah, 596, 206 P. 711,
714. The act of knowingly making untruthful statements
of material facts in "reasons for refund" of excise taxes,
supported by fictitious copies of letters and cards attached
thereto, constitutes "false claim" against government,
within Criminal Code, § 35 (18 T.JSCA §§ 80, 82-86). Evans
v. U. S., C.C.A.S.C., 11 F.2d 37, 39.
FALSE DECRETALS. A collection of canon law,
dated about the middle of the 9th century, probably by a Frankish ecclesiastic who called himself
Isadon. It continued to be the chief repertory of
the canon law till the 15th century when its untrustworthy nature was demonstrated.
FALSE AND FRAUDULENT. The phrase "false
and fraudulent" in Food and Drugs Act of 1906
means that the statement must have been made
with actual intent to deceive. United States v.
Dr. David Roberts Veterinary Co., C.C.A.Wis., 104
F.2d 785, 788.
To amount to actionable "false and fraudulent representations", they must have been as to existing fact or
known by one making them, from his superior knowledge,
to have been untrue when made. Burlison v. Weis, Mo.
App., 152 S.W.2d 201, 203.
FALSE AND MISLEADING STATEMENT. Failure to state material fact made letter a "false
and misleading statement" within rule of Securities and Exchange Commission. Securities and
Exchange Commission v. Okin, C.C.A.N.Y., 132
F.2d 784, 787.
FALSE ANSWER. In pleading. A sham answer;
one which is false in the sense of being a mere
pretense set up in bad faith and without color of
fact. Howe v. Elwell, 57 App.Div. 357, 67 N.Y.
Supp. 1108; Farnsworth v. Halstead, Sup., 10 N.Y.
S. 763.
FALSE ARREST. Any unlawful physical restraint by one of another's liberty, whether in
prison or elsewhere. Gariety v. Fleming, 121 Kan.
42, 245 P. 1054, 1055; Russell v. Levinsohn, 5 N.J.
Misc. 765, 138 A. 205; Great Atlantic & Pacific
Tea Co. v. Phillips, 253 Ky. 126, 69 S.W.2d 5.
FALSE CHARACTER. Personating the master
or mistress of a servant, or any representative of
such master or mistress, and giving a false character to the servant is an offense punishable in
England with a fine of £20. St. 32 Geo. III. c. 56.
FALSE CHECKS. Obtaining money by means
and use of a check upon a bank, in which the
drawer at the time had no funds or credit with
•
FALSE ENTRY. An entry in books of a bank or
trust company which is intentionally made to represent what is not true or does not exist, with
intent either to deceive its officers or a bank examiner or to defraud the bank or trust company.
Agnew v. U. S., 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed.
624; Fricke v. State, 112 Neb. 767, 201 N.W. 667,
670; Commonwealth v. Bardolph, 111 Pa.Super.
85, 169 A. 574, 575; U. S. v. Mulloney, D.C.Mass.,
5 F.Supp. 77, 79.
An untrue statement of items of account by written
words, figures, or marks. United States v. Herrig, D.C.
Mont., 204 F. 124, 125. One making an original false entry
makes a false entry in every book which is made up in
regular course from the entry or entries from the original
book of entry. State v. Davidson, 46 N.D. 564, 180 N.W. 31,
32.
Where entry upon books of bank of matter contained in
deposit slip is not true it is a "false entry," Adams v.
State, 179 Ark. 1047, 20 S.W.2d 130, 133.
Entries made by cashier of balance in insurance company's account after deducting unauthorized withdrawals
made by cashier as agent of insurance company held "false
entries" within statute. 18 U.S.C.A. § 1005. Laws v. U. S.,
C.C.A.Okl., 66 F.2d 870, 873.
FALSE FACT. In the law of evidence. A
feigned, simulated, or fabricated fact; •a fact not
founded in truth, but existing only in assertion;
the deceitful semblance of a fact.
FALSE IMPERSONATION. To impersonate another falsely, and iri such assumed character to
do any act whereby any benefit might accrue to
the offender or to another person. People v.
Horkans, 109 Colo. 177, 123 P.2d 824.
722
FALSE PRETENSES
FALSE IMPRISONMENT. See Imprisonment.
FALSE INSTRUMENT. A counterfeit; one
made in the similitude of a genuine instrument
and purporting on its face to be such. U. S. v.
Howell, 11 Wall. 435, 20 L.Ed. 195; U. S. v. Owens,
C.C.Tenn., 37 Fed. 115; State v. Willson, 28 Minn.
52, 9 N.W. 28.
FALSE JUDGMENT. In old English law. A
writ which lay when a false judgment had been
pronounced in a court not of record, as a county
court, court baron, etc. Fitzh. Nat. Brev. 17, 18.
In old French law. The defeated party in a
suit had the privilege of accusing the judges of
pronouncing a false or corrupt judgment, whereupon the issue was determined by his challenging
them to the combat or duellum. This was called
the "appeal of false judgment." Montesq. Esprit
des Lois, liv. 28, c. 27.
FALSE LATIN. When law proceedings were
written in Latin, if a word were significant though
not good Latin, yet an indictment, declaration, or
fine should not be made void by it; but if the
word were not Latin, nor allowed by the law, and
it were in a material point, it made the whole
vicious. (5 Coke, 121; 2 Nels. 830.) Wharton.
FALSE LIGHTS AND SIGNALS. Lights and signals falsely and maliciously displayed for the
purpose of bringing a vessel into danger. See
stat. 24 & 25 Vict. c. 97, § 47; 18 U.S.C.A. § 488.
FALSE MAKING. An essential element of forgery, where material alteration is not involved.
Term has reference to manner in which writing
is made or executed rather than to its substance
or effect. A falsely made instrument is one that
is fictitious, not genuine, or in some material particular something other than it purports to be and
without regard to truth or falsity of facts stated
therein. Wright v. U. S., C.A.Ariz., 172 F.2d 310,
311.
FALSE NEWS. Spreading false news, whereby
discord may grow between the queen of England and her people, or the great men of the
realm, or which may produce other mischiefs,
still seems to be a misdemeanor, under St. 3 Edw.
I. c. 34. Steph. Cr. Dig. § 95.
FALSE OATH. To defeat discharge in bankruptcy "false oath" must contain all the elements
involved in "perjury" at common law, namely, an
intentional untruth in matter material to a material issue, In re , Bergman, D.C.N.Y., 6 F.Supp.
898, 901, it must have been knowingly and fraudulently made. In re Stone, D.C.N.H., 52 F.2d
639, 641. See, also, Perjury.
FALSE OR FRAUDULENT CLAIM. A "false or
fraudulent claim" within meaning of statute providing for punishment of any one receiving proceeds of fraudulent audit or payment, since to be
"false or fraudulent," must be a claim for services or materials not actually rendered or furnished. People v. Dally, 175 Misc. 680, 24 N.Y.S.2d
692, 695.
FALSE PAPER. In a statute defining an offense
of willfully and knowingly subscribing to "false
papers" to deceive bank examiners, the term refers not to one which is forged or spurious, but
to a paper duly subscribed by the person purporting to sign it, and containing an untrue statement
in the body of the instrument. State v. Pierson,
101 Wash. 318, 172 P. 236, 238.
FALSE PERSONATION. The criminal offense
of falsely representing some other person and
acting in the character thus unlawfully assumed,
in order to deceive others, and thereby gain some
profit or advantage, or enjoy some right or privilege belonging to the one so personated, or subject him to some expense, charge, or liability. See
4 Steph. Comm. 181, 290.
FALSE PLEA, See Sham Plea.
FALSE PRETENSES. Designed misrepresentation of existing fact or condition whereby person
obtains another's money or goods. People v.
Gould, 363 Ill. 348, 2 N.E.2d 324.
Elements of offense include actual fraud, State
v. Nuser, 199 Minn. 315, 271 N.W. 811, 812; State v.
Mayer, 196 N.C. 454, 146 S.E. 64, 65; assertion of a
present or past fact, Slaughter v. Commonwealth,
222 Ky. 225, 300 S.W. 619, 621, 56 A.L.R. 1209;
State v. Nuser, 199 Minn. 315, 271 N.W. 811, 812,
falsity of representation, State v. Mayer, 196 N.C.
454, 146 S.E. 64, 65; People v. Leaverton, 107 Cal.
App. 51, 289 P. 890, 892; intent to cheat and defraud. Commonwealth v. Campbell, 116 Pa.Super. 180, 176 A. 246, 250; State v. Johnson, 195
N.C. 506, 142 S.E. 775, 776; knowledge of the
falsity, fraud. Couch v. State, 31 Ala.App. 586,
20 So.2d 57, 58; Dennis v. Thomson, 240 Ky.
727, 43 S.W.2d 18, 25; obtaining of property or
something of value. State v. Johnson, 195 N.C.
506, 142 S.E. 775, 776; Couch v. State, 31 Ala.App.
586, 20 So.2d 57, 58; perpetration of fraud by
means of such false pretenses, State v. Hintz, 200
Wis. 636, 229 N.W. 54, 55; reliance on representation, State v. Howley, 220 N.C. 113, 16 S.E.2d 705,
708, 709; use of pretenses or false representations, Dennis v. Thomson, 240 Ky. 727, 43 S.W.2d
18, 25; State v. Mayer, 196 N.C. 454, 146 S.E. 64,
65.
Other definitions of "false pretenses" include:
False representation of existing fact or condition by
which a party obtains property of another, People ex rel.
Courtney v. Sullivan, 363 Ill. 34, 1 N.E.2d 206, 208; false
representation of existing fact, whether by oral or written
words or conduct, calculated to deceive, intended to deceive, and does in fact deceive, whereby one person obtains value from another without compensation, Commonwealth v. Johnson, 312 Pa. 140, 167 A. 344, 345, 89 A.L.R.
333; State v. Alick, 62 S.D. 220, 252 N.W. 644; false representation of existing or past fact calculated to induce
confidence on part of one to whom representation is made,
and accompanied by or blended with a promise to do something in future, State v. Parkinson, 181 Wash. 69, 41 P.2d
1095, 1097; false representation of existing fact, made
with knowledge of falsity, with intent that party to whom
it is made should act upon it, and acted upon by such
party to his detriment. Griffith v. State, 93 Ohio St. 294,
112 N.E. 1017, 1018; State v. Hathaway, 168 Wis. 518, 170
N.W. 654, 656; State v. Whitney, 43 Idaho, 745, 254 P. 525,
526; Smith v. State, 74 Fla. 594, 77 So. 274, 276; false representation of past or existing fact, made with knowledge
of falsity, with intent to deceive and defraud, and which
723
FALSE PRETENSES
is adapted to deceive person to whom made, State v. Alick,
62 S.D. 220, 252 N.W. 644; false representations and statements, made with a fraudulent design to obtain money,
goods, wares, or merchandise, with intent to cheat, 2 Bouv.
Inst. no. 2308; false statement made with knowledge of
its falsity, which is intended to deceive, and which in fact
does deceive, and injury results, Morris Plan Bank of
Richmond v. Henderson, D.C.N.C., 57 F.2d 326, 327; fraudulent representation of fact by one who knows it not to be
true as is adapted to induce person to whom made to part
with something of value, Fisher v. 'State, 161 Ark. 586, 256
S.W. 858, 860; State v. Tanner, 22 N.M. 493, 164 P. 821,
822, L.R.A.1917E, 849; State v. Luff, 1 Boyce (Del.) 152, 74
A. 1079, 1080; State v. Barr, 63 Idaho 59, 117 P.2d 282, 286;
misrepresentation of past fact, knowingly made to induce
another to part with his property, People v. Martin, 372
Ill. 484, 24 N.E.2d 380, 381, 382; misstatement of fact,
Carr v. State, 60 Ga.App. 590, 4 S.E.2d 500, 501; representation of some fact or circumstance, calculated to mislead
or deceive, which is not true, State v. Grant, 86 Iowa 216, 53
N.W. 120; Commonwealth v. McKnight, 289 Mass. 530, 195
N.E. 499, 506.
A "false pretense" must be as to an existing or past fact.
State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 689; Commonwealth v. Becker, 151 Pa.Super. 169, 30 A.2d 195, 197.
A pretense is the holding out or offering to others something false and feigned. This may be done either by words
or actions, which amount to false representations. In fact,
false representations are inseparable from the idea of a
pretense. Without a representation which is false there
can be no pretense. State v. Joaquin, 43 Iowa, 132.
Gist of offense of "obtaining money by false pretenses"
is the fraud and deception by the perpetrator, his motive,
and the result-the fact that a person was deceived and
defrauded. Frazier v. Commonwealth, 291 Ky. 467, 165
S.W.2d 33, 34.
Giving of worthless check is, in itself, "false pretense".
State v. Augustine, 114 W.Va. 143, 171 S.E. 111, 113; Laird
v. Employers Liability Assur. Corporation, Limited, of
London, England, 2 Terry 216, 18 A.2d 861, 862.
In "false pretenses" owner intends to part with his property in 'money or chattel but it is obtained from him by
fraud. People v. Santora, 51 Cal.App.2d 707, 125 P.2d 606,
608.
One distinction between "embezzlement" and "false pretenses" is that in the former case the defendant does not
have title to the property, while in the latter, he has.
State v. Serkau, 128 Conn. 153, 20 A.2d 725, 727.
Confidence game distinguished
A "confidence game" is any swindling operation in which advantage is taken of the confidence reposed by the victim in the swindler. It
consists of gaining the possession of money or
property by means of some trick, device, or swindling operation in which advantage is taken of the
confidence of the victim reposed in the swindler.
In obtaining money by "false pretenses," the false
pretenses used must have been believed and relied
on by the defrauded party and been the means
of inducing the victim to part with his property.
People v. Blume, 345 Ill. 524, 178 N.E. 48, 52.
"Confidence game" is not established by mere proof that
property has been obtained by false pretense. Clark v.
State, 53 Ariz. 416, 89 P.2d 1077, 1080.
Larceny and false pretenses distinguished
In larceny owner has no intention to part with his property, although he may intend to part with possession,
while in false pretenses the owner does intend to part
with the property but it is obtained from him by fraud.
People v. Shwartz, 43 Cal.App. 696, 185 P. 686, 687. Roberta
v. State, 181 Ind. 520, 104 N.E. 970, 971.
In larceny owner has no intention to part with title to
and possession of property taken, while in false pretenses
he does so intend, but it is obtained from him by fraud.
Simmons v. State, 165 Md. 155, 167 A. 60, 64.
Only a very narrow distinction exists between "larceny"
and "false pretense"; the character of the crime depending on the intention of the parties. Riley v. State, 64 Okl.
Cr. 183, 78 P.2d 712, 716.
The intention of owner of property not to part with title when relinquishing possession of property is vital point
to be determined in distinguishing between "larceny by
fraud" and obtaining property by "false pretenses". Dobson v. State, 74 Okl.Cr. 341, 126 P.2d 95, 101.
Obtaining money or property by false pretenses
Elements are intent to defraud, actual fraud, false pretense, and fraud resulting therefrom, Simmons v. State,
165 Md. 155, 167 A. 60, 64; false pretenses, that property
was obtained thereby, that false pretenses were made with
intent to cheat and defraud, and that money was paid in
reliance upon and under inducement of false pretenses,
People v. Sloane, 165 Misc. 444, 300 N.Y.S. 1032, 1035.
It is sufficient if false pretenses are a part of the moving cause, and, without them, the defrauded party would
not have parted with the property. State v. Faulkner, 139
Kan. 665, 33 P.2d 175, 177.
The distinction between "obtaining money by false pretenses" and forgery is that in the former, the acquisition
of the money is the principal thing, while in forgery the
making, altering, uttering, or publishing of the written
instrument is the principal part, and money need not necessarily be obtained. State v. Hobl, 108 Kan. 261, 194 P.
921, 924.
The false representations may be made by implication.
Johnson v. People, 110 Colo. 283, 133 P.2d 789, 792.
The "false pretense" may be the failure to speak when
it was necessary to do so. People v. Etzler, 292 Mich. 489,
290 N.W. 879, 880.
The ‘ "false pretense" must relate to existing fact, or to
fact which has theretofore occurred. Jones v. State, 236
Ala. 30, 182 So. 404, 405.
FALSE RECORD. The Fair Labor Standards Act
prohibiting the making of "false records" refers
to falsification of payroll records customarily
made available to a wage and hour inspector.
United States v. Selman-Reinstein, Inc., D.C.
Minn., 52 F.Supp. 208, 209, 210.
FALSE REPRESENTATION. A representation
which is untrue, willfully made to deceive another to his injury. See, also, Deceit and Fraud.
A deceitful representation, or one contrary to the fact,
made knowingly and with the design and effect of inducing
the other party to enter into the contract to which it relates; a declaration of present intention, false when made,
to perform act in future, Pease & Elliman v. Wegeman,
223 App.Div. 682, 229 N.Y.S. 398, 400; a representation
known to be false by person making it, or made without
knowledge as a positive statement of known fact upon
which another relied and acted, Platte Valley Bank v.
Lemke, 141 Neb. 218, 3 N.W.2d 396, 399; a representation
of what is true, which nevertheless creates an impression
which is false. Newark Trust Co. v. Lackawanna Inv. Co.,
88 N.J.Eq. 541, 103 A. 168, 169; McClellan v. Tobin, Ind.,
219 Ind. 563, 39 N.E.2d 772, 774; an assertion of knowledge
which in fact one does not have, Tone v. Halsey, Stuart &
Co., 286 Ill.App. 169, 3 N.E.2d 142, 147; an assertion of
something as true which one does not know to be true,
Hargrove v. Henderson, 108 Cal.App. 667, 292 P. 148; such
representations as will deceive persons of ordinary prudence. Union Central Life Ins. Co. v. Kerron, 128 Or. 70,
264 P. 453, 455; Holmberg v. Prudential Savings & Loan
Ass' n, 130 Or. 1, 278 P. 943, 945.
A "false representation" may arise from any conduct
capable of being turned into a statement of fact. Bundesen
v. Lewis, 291 Ill.App. 83, 9 N.E.2d 327, 334.
A "false representation" may be made scienter, so as to
afford a right of action in damages, in any of the following
ways : (1) With actual knowledge of its falsity; (2) without knowledge either of its truth or falsity; or (3) under
circumstances in which the person making it ought to have
known if he did not know of its falsity. Horton v. Tyree,
724
FALSE WORDS
104 W.Va. 238, 139 S.E. 737, 738; Sebastian County Bank
v. Gann, 121 Ark. 145, 180 S.W. 754, 755.
A false representation, within Bankruptcy Act not affected by discharge, must involve moral turpitude or intentional wrong. Hisey v. Lewis-Gale Hospital, D.C.Va., 27
F.Supp. 20, 23.
False statements although future in form may be "false
representations" of existing facts and conditions. National Theatre Supply Co. v. Rigney, Mo.App., 130 S.W.2d
258, 263.
To maintain an action for damages for "false representation," the plaintiff, in substance, must allege and must
prove by a preponderance of the evidence the following elements: (1) What representation was made; (2) that it
was false; (3) that the defendant knew it was false, or else
made it without knowledge as a positive statement of
known fact; (4) that the plaintiff believed the representation to be true; (5) that the plaintiff relied on and acted
upon the representation; (6) that the plaintiff was thereby
injured; and (7) the amount of the damages. Peterson v.
Schaberg, 116 Neb. 346, 217 N.W. 586, 587.
FALSE RETURN. See Return.
FALSE STATEMENT. Under statutory provision, making it unlawful for officer or director of
corporation to make any false statement in regard to corporation's financial condition, the
phrase means something more than merely untrue or erroneous, but implies that statement is
designedly untrue and deceitful, and made with
intention to deceive person to whom false' statement is made or exhibited. State v. Johnston,
149 S.C. 138, 146 S.E. 657, 660.
As used in bankruptcy statute provision concerning
discharge, these words denote or connote guilty scienter on
part of bankrupt, In re Krulewitch, D.C.N.J., 60 F.2d 1039,
1041; Wilensky v. Goodyear Tire & Rubber Co., C.C.A.
Mass., 67 F.2d 389, 390. They mean an incorrect statement
made or acquiesced in with knowledge of incorrectness or
with reckless indifference to actual facts and with no
reasonable ground to believe it correct. International Shoe
Co. v. Lewine, C.C.A.Miss., 68 F.2d 517, 518; statement
false to bankrupt's knowledge and made with fraudulent
intent, In re Johnson, D.C.Conn., 1 F.Supp. 649, 651; statement knowingly false, or made recklessly without honest
belief in its truth, and with purpose to mislead or deceive,
Third Nat. Bank v. Schatten, C.C.A.Tenn., 81 F.2d 538,
540; In re Venturella, D.C.Conn., 25 F.Supp. 332. They
mean more than erroneous or untrue and import intention to deceive, Schapiro v. Tweede Footwear Corporation,
C.C.A.Pa., 131 F.2d 876, 878.
Bank's statement which gives result showing bank substantially stronger than it is in fact; constitutes "false
statement" within statute defining offense of making or
publishing false statement. Rosenberg v. State, 212 Wis.
434, 249 N.W. 541.
FALSE SWEARING. The essential elements of
"false swearing" consist in willfully, knowingly,
absolutely and falsely swearing under oath or affirmation on a matter concerning which a party
could legally be sworn and on oath 'administered
by one legally authorized to administer it. Smith
v. State, 66 Ga.App. 669, 19 S.E.2d 168, 169.
To constitute "false swearing", it must appear
that matter sworn to was judicially pending or
was being investigated by grand jury, or was
a subject on which accused could legally have
been sworn, or on which he was required to be
sworn. Capps v. Commonwealth, 294 Ky. 743,
172 S.W.2d 610, 611. The oath need not be taken
in a matter judicially pending or any matter material to any point in question. Capps v. Commonwealth, 294 Ky. 743, 172 S.W.2d 610, 611. See,
also, Perjury.
As used in provision concerning denial of liability under
policy, means false statement willfully made with respect
to a material matter with intention of thereby deceiving
insurer, Sands v. Bankers' Fire Ins. Co., 168 Va. 645, 192
S.E, 617; false statements made knowingly and willfully,
with intent to deceive insurer concerning matter material
to insurance, Buccola v. National Fire Ins. Co. of Hartford,
Conn., 18 La.App. 353, 137 So. 346, 350; knowingly and intentionally stating upon oath what is not true, or statement of a fact as true, which the party does not know to
be true, Harwood v. United States Fire Ins. Co., 136 Me.
223, 7 A.2d 899, 902; knowingly and willfully false swearing to deceive or mislead insurers, Young v. California Ins.
Co., 55 Idaho 682, 46 P.2d 718, 722; misstatement in proofs
of loss willfully made, Palace Cafe v. Hartford Fire Ins.
Co., C.C.A.Ind., 97 F.2d 766, 769; statements which are not
only untrue but knowingly and intentionally made with
knowledge of their untruthfulness or those statements
which are made as the truth when party did not know them
to be true and had no reasonable grounds for believing
them to be true, and statements must be made for purpose
of defrauding insurer, United States Fire Ins. Co. v. Merrick, 171 Md. 476, 190 A. 335, 342; swearing knowingly
and intentionally false and not through mere mistake.
Knight v. Boston Ins. Co., 113 N.J.L. 132, 172 A. 594, 595.
"Perjury" and "false swearing" may be interchangeable.
Ray v. Times Pub. Co., Tex.Com.App., 12 S.W.2d 165, 166.
The misdemeanor committed in English law by a person
who swears falsely before any person authorized to administer an oath upon a matter of public concern, under
such circumstances that the false swearing would have
amounted to perjury if committed in a judicial proceeding;
as where a person makes a false affidavit under the bills of
sale acts. Steph.Cr.Dig. p. 84. And see O'Bryan v. State,
27 Tex.App. 339, 11 S.W. 443. In Texas, it is not necessary,
to complete the offense, that the affidavit be used for the
purpose for which it was intended. Welch v. State, 71 Tex.
Cr.R. 17, 157 S.W. 946. Under the Texas and Kentucky
statutes, however, "false swearing" is distinct from the
common-law crime of perjury; Commonwealth v. Hinkle,
177 Ky. 22, 197 S.W. 455, 456; Shipp v. State, 81 Tex.Cr.R.
328, 196 S.W. 840, 842; inasmuch as "false swearing" consists in making a false oath on a subject about which the
party could legally be sworn, and before a person legally
authorized to administer the oath; Commonwealth v.
Bradshaw, 210 Ky. 405, 276 S.W. 124, 125; it not being
necessary, as in perjury, that the testimony be material;
Sullivan v. Commonwealth, 158 Ky. 536, 165 S.W. 696, 697.
FALSE TOKEN. In criminal law. A false document or sign of the existence of a fact,—in general used for the purpose of fraud. See 3 Term,
98; 2 Starkie, Ev. 563; 1 Bish. Cr. L. 585; People
v. Haynes, 14 Wend., N.Y., 570, 28 Am.Dec. 530;
Smith v. State, 74 Fla. 594, 77 So. 274, 276; State
v. Renick, 33 Or. 584, 56 P. 275, 44 L.R.A. 266.
A written release of fictitious claim was a "false token"
People v. Beilfuss, 59 Cal.App.2d 83, 138 P.2d 332, 339.
FALSE VERDICT. See Verdict.
FALSE WEIGHTS. False weights and measures
are such as do not comply with the standard prescribed by the state or government, or with the
custom prevailing in the place and business in
which they are used.
FALSE WITNESS. One who is intentionally
rather than merely mistakenly false. State v.
Weston, 109 Or. 19, 219 P. 180, 189.
FALSE WORDS, which may be eliminated from
descriptions in wills, deeds, etc., are misdescriptions of property that are not applicable to any
property owned or intended to be devised or conveyed. Brown v. Ray, 314 Ill. 570, 145 N.E. 676,
679; Armstrong v. Armstrong, 327 III. 85, 158
N.E. 356, 358.
725
FALSEDAD
FALSEDAD. In Spanish law. Falsity; an alteration of the truth. Las Partidas, pt. 3, tit. 26,
1. 1.
FALSI CRIMEN. Fraudulent subornation or concealment, with design to darken or hide the truth,
and make things appear otherwise than they are.
It is committed (1) by words, as when a witness
swears falsely; (2) by writing, as when a person
antedates a contract; (3) by deed, as selling by
false weights and measures. Wharton. See Crimen Falsi.
Deception; fraud. Id. pt. 3, tit. 32, 1. 21.
FALSEHOOD. A statement or assertion known
to be untrue, and intended to deceive. A willful
act or declaration contrary to the truth. Putnam v. Osgood, 51 N.H. 207.
FALSIFICATION. In equity practice. The showing an item in the debit of an account to be either
wholly false or in some part erroneous. 1 Story,
Eq. Jur. § 525. And see Phillips v. Belden, 2 Edw.
Ch. 23; Pit v. Cholmondeley, 2 Ves. Sr. 565; Tate
v. Gairdner, 119 Ga. 133, 46 S.E. 73; Armstrong
v. Toler, 11 Wheat., U.S., 237, 6 L.Ed. 468.
The term is perhaps generally used in the second sense
here given. It is committed either by the wilful act of the
party, or by dissimulation, or by words.
Crabbe thus distinguishes between falsehood and untruth: "The latter is an untrue saying, and may be unintentional, in which case it reflects no disgrace on the agent.
A falsehood and a lie are intentional false sayings, differing only in degree of the guilt of the offender; falsehood
being not always for the express purpose of deceiving, but
a lie always for the worst of purposes." See Rosc.Cr.Ev.
362; Deceit; Fraud; Misrepresentation.
FALSIFY. To disprove; to prove to be false or
erroneous; to avoid or defeat; spoken of verdicts,
appeals, etc. Co. Litt. 104b.
A fabrication. Werner v. Southern Cal. Associated Newspapers, Cal.App., 206 P.2d 952, 961.
To counterfeit or forge; to make something false; to
give a false appearance to anything. To make false by
mutilation or addition; to tamper with; as, to falsify a
record or document. Pou v. Ellis, 66 Fla. 358, 63 So. 721,
722.
To show, as in an accounting before a master in chancery, that a charge has been inserted which is wrong; that
is, either wholly false or in some part erroneous. Pull.
Accts. 162; 1 Story, Eq.Jur. § 525. See Shores-Mueller Co.
v. Bell, 21 Ga.App. 194, 94 S.E. 83, 84; Falsification.
The word "falsify" may be used to convey two distinct
meanings-either that of being intentionally or knowingly
untrue, made with intent to defraud, or mistakenly and accidentally untrue. Washer v. Bank of America Nat. Trust
& Savings Ass'n, 21 Ca1.2d 822, 136 P.2d 297, 301.
Scotch Law
A fraudulent imitation or suppression of truth, to the
prejudice of another. Bell. "Something used and published falsely." An old Scottish nomen juris. "Falsehood
is undoubtedly a nominate crime, so much so that Sir
George Mackenzie and our older lawyers used no other
term for the falsification of writs, and the name 'forgery'
has been of modern introduction." "If there is any distinction to be made between 'forgery' and 'falsehood,' I
would consider the latter to be more comprehensive than
the former." 2 Broun, 77, 78.
FALSELY. In a false manner, erroneously, not
truly, perfidiously or treacherously. Dombroski
v. Metropolitan Life Ins. Co., 126 N.J.L. 545, 19 A.
2d 678, 680. Knowingly affirming without probable cause. Hicks v. State, 67 Ga.App. 475, 21 S.E.
2d 113, 118. See, also, False.
FALSIFYING A JUDGMENT. A term sometimes used for reversing a judgment. See 4 Steph.
Com. 553.
FALSIFYING A RECORD. A high offense
against public justice, punishable in England by
24 & 25 Vict. c. 98, §§ 27, 28, and in the United
States, generally, by statute. See U. S. Rev.Stat.
§ 5394, 18 U.S.C.A. § 1506.
As applied to making or altering a writting in order to
make it forgery, implies that the paper or writing is not
genuine; that in itself it is false or counterfeit. People v.
Kramer, 352 Ill. 304, 185 N.E. 590, 591.
The use of the word falsely in a statute (against counterfeiting) implies that there must be a fraudulent or criminal intent in the act; U. S. v. King, 5 McLean 208, Fed.
Cas.No.15,535. See, also, 4 B. & C. 329; 6 Com.Dig. 58;
Stark, Cr.P1. 86.
The word "falsely", particularly in a criminal statute,
suggests something more than a mere untruth and includes perfidiously or treacherously or with intent to defraud. United States v. Achtner, C.C.A.N.Y., 144 F.2d 49,
52.
Usually used in the sense of designedly untrue and deceitful, and as implying an intention to perpetrate some
treachery or fraud. Fouts v. State, 113 Ohio St. 450, 149
N.E. 551, 554; State v. Merlo, 92 Or. 678, 173 P. 317, 319;
McDonald v. McNeil, 92 Vt. 356, 104 A. 337, 339; Cro.Eliz.
201; 7 D. & R. 665. But see 1 Den.C.C. 157.
FALSING. In Scotch law. False making; forgery. "Falsing of evidentis." 1 Pitc. Crim. Tr. pt.
1, p. 85.
Making or proving false.
FALSING OF DOOMS. In Scotch law. The
proving the injustice, falsity, or error of the doom
or sentence of a court. Tomlins; Jacob. The
reversal of a sentence or judgment; an action to
set aside a decree. Skene. Protesting against a
sentence and taking an appeal to a higher tribunal. Bell, Dict.
FALSITY implies more than erroneous or untrue;
it indicates knowledge of untruth. Abercrombie
v. Hair, 185 Ga. 728, 196 S.E. 447, 451.
FALSELY IMPERSONATE. To "falsely impersonate" may mean to pretend to be a particular
person without lawful authority. People v. Hors
kans, 109 Colo. 177, 123 P.2d 824, 826.
FALSELY MAKE, means to make an instrument
which has no original as such and no genuine
maker whose work is copied, although in form
it may resemble a type of recognized security.
Pines v. United States, C.C.A.Iowa, 123 F.2d 825,
828.
FALSO RETORNO BREVIUM. In old English.
law. A writ which formerly lay against the sheriff who had execution of process for false returning of writs. Reg. Jud. 43b; Cunningham, Law
Dict.
I
FALSONARIUS. A forger; a counterfeiter.
Hov. 424.
726
FAMILY
FALSUM. Lat. In the civil law. A false or
forged thing; a fraudulent simulation; a fraudulent counterfeit or imitation, such as a forged
signature or instrument. Also falsification, which
may be either by falsehood, concealment of the
truth, or fraudulent alteration, as by cutting out
or erasing part of a writing.
FAMACIDE. A killer of reputation; a slanderer.
FAMILIA.
Old English Law. A household; the body of
household servants; a quantity of land, otherwise
called "mansa," sufficient to maintain one family.
Du Cange; Cowell; Cunningham, Law Dict.;
Creasy, Church Hist.
FALSUS. Lat. False; fraudulent; erroneous.
Deceitful; mistaken.
Roman Law. A household; a family. On the
composition of the Roman family, see Agnati;
Cognati; and see Mackeld. Rom. Law, § 144.
In the sense of "deceiving" or "fraudulent," it is applied
to persons in respect to their acts and conduct, as well as
to things; and in the sense of "erroneous," it is applied to
persons on the question of personal identity.
Family right; the right or status of being the head of a
family, or of exercising the patria potestas over others.
This could belong only to a Roman citizen who was a "man
in his own right," (homo sui juris.) Mackeld.Rom.Law, §§
133, 144.
FALSUS IN UNO, FALSUS IN OMNIBUS. False
in one thing, false in everything. Commonwealth
v. Billings, 97 Mass. 406; Mercer v. Wright, 3 Wis.
645; State v. Williams, 47 N.C. 257; Dawson v.
Bertolini, 70 R.I. 325, 38 A.2d 765, 768.
The doctrine means that, if testimony of a witness on a
material issue is willfully false and given with an intention to deceive, jury may disregard all the witness' testimony. Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d 820,
823.
The maxim deals only with weight of evidence, Metropolitan Life Ins. Co. v. Wright, 190 Miss. 53, 199 So. 289,
290. It does not relieve jury from passing on credibility of
the whole testimony of a false swearing witness or excuse
jury from weighing the whole testimony. State v. Willard,
346 Mo. 773, 142 S.W.2d 1046, 1052. It is a mere rule of
evidence affirming a rebuttable presumption of fact, under
which the jury must consider all the evidence of the witness, other than that which is found to be false, and it is
their duty to give effect to so much of it, if any, as is
relieved from the presumption against it and found to be
true. Levine Bros. v. Mantell, 90 W.Va. 166, 111 S.E. 501,
504; Shecil v. United States, C.C.A.Wis., 226 F. 184, 187.
It is not a rule of law and false statement, State v. Sturchio, 127 N.J.L. 366, 22 A.2d 235, 237. It is not a rule of
the law of evidence, but is merely an aid in weighing and
sifting of evidence. Dawson v. Bertolini, 70 R.I. 325,
38 A.2d 765, 768. It is particularly applied to the testimony
of a witness who, if he is shown to have sworn falsely in
one detail, may be considered unworthy of belief as to all
the rest of his evidence. Grimes v. State, 63 Ala. 168; Wilson v. Coulter, 51 N.Y.S. 804, 29 App. Div. 85; White v.
Disher, 67 Cal. 402, 7 P. 826.
The rule is merely permissive and not mandatory. Bankers' Health & Life Ins. Co. v. Nichols, 44 Ga.App. 536, 162
S.E. 161.
Where a party is clearly shown to have embezzled one
article of property, it is a ground of presumption that he
may have embezzled others also. The Boston, 1 Sumn. 328,
356, Fed.Cas.No.1,673; The Santissima Trinidad, 7 Wheat.
339, 5 L. Ed. 454.
FAMA. Lat. Fame; character, reputation; report of common opinion.
FAMA, FIDES ET OCULUS NON PATIUNTUR
LUDUM. 3 Bulst. 226. Fame, faith, and eyesight
do not suffer a cheat.
FAMA QU1E SUSPICIONEM INDUCIT, ORIRI
DEBET APUD BONOS ET GRAVES, NON QUIDEM MALEVOLOS ET MALEDICOS, SED PROVIDAS ET FIDE DIGNAS PERSONAS, NON
SEMEL SED SIEPIUS, QUIA CLAMOR MINUIT
ET DEFAMATIO MANIFESTAT. 2 Inst. 52. Report, which induces suspicion, ought to arise from
good and grave men; not, indeed, from malevolent and malicious men, but from cautious and
credible persons; not only once, but frequently;
for clamor diminishes, and defamation manifests.
Spanish Law. A family, which might consist of
domestics or servants. It seems that a single person owning negroes was the "head of a family,"
within the meaning of the colonization laws of
Coahuila and Texas. State v. Sullivan, 9 Tex. 156.
FAMILLE EMPTOR. In Roman law. An intermediate person who purchased the aggregate inheritance when sold per ces et libram, in the process of making a will under the Twelve Tables.
This purchaser was merely a man of straw, transmitting the inheritance to the hceres proper.
Brown.
FAMILLE ERCISCUNDIE. In Roman law. An
action for the partition of the aggregate succession of a familia, where that devolved upon cohceredes. It was also applicable to enforce a contribution towards the necessary expenses incurred
on the familia. See Mackeld. Rom. Law, § 499;
Stair, Inst. 1. 1, tit. 7, § 15.
FAMILIAR. The word is equivalent to the word
"know." Smiley v. Lenane, 363 Ill. 66, 1 N.E.2d
213, 216.
FAMILIARES REGIS. Persons of the king's
household. The ancient title of the "six clerks"
of chancery in England. Crabb, Com. Law, 184;
2 Reeve, Eng. Law, 249, 251.
FAMILIARITY. Acquaintance expresses less than
"familiarity"; familiarity less than intimacy. Acquaintance springs from occasional intercourse,
familiarity from daily intercourse, intimacy from
unreserved intercourse; acquaintance, having
some knowledge, familiarity, from long habit, intimacy, by close connection. Atkins Corporation
v. Tourny, 6 Cal.2d 206, 57 P.2d 480, 483.
FAMILY. The word is used to designate many
relationships. Collins v. Northwest Casualty Co.,
180 Wash. 347, 39 P.2d 986, 989, 97 A.L.R. 1235;
State ex rel. Kemp v. Arnold, 234 Mo. 154, 113 S.
W.2d 143, 146.
In broad or primary sense "family" means:
a collective body of any two persons living together in one house as their common home for
the time; In re Barnes' Estate, 149 Misc. 149, 267
N.Y.S. 634; a collective body of persons, living
together in one home, in a permanent and domestic character, under one head or management,
727
FAMILY
State ex rel. Kemp v. Arnold, 234 Mo. 154, 113 S.
W.2d 143, 146; a collective body of persons who
live in one house and under one head or management, Fratellanza Italiana v. Nugnes, 114 N.J.Eq.
185, 168 A. 589, 590; a group of blood-relatives;
all the relations who descend from a common ancestor, or who spring from a common root, Civil
Code La. art. 3556, no. 12; 9 Ves. 323; a group of
kindred persons, Hartley v. Bohrer, 52 Idaho 72,
11 P.2d 616, 618; husband and wife and their
children. Franklin Fire Ins. Co. v. Shadid, Tex.
Com.App., 68 S.W.2d 1030, 1032.
In most common use, the word implies father,
mother and children, immediate blood relatives.
Collins v. Northwest Casualty Co., 180 Wash. 347,
39 P.2d 986, 989, 97 A.L.R. 1235.
In narrow or restricted sense "family" means:
a father, mother, and children, whether living
together or not, Higgins v. Safe Deposit & Trust
Co. of Baltimore, 127 Md. 171, 96 A. 322, 323.,
group of parents and children founded on principle of monogamy, In re Schmidt's Estate, 159
Misc. 373, 289 N.Y.S. 247, 250; husband and wife
and their children, State ex rel. Kemp v. Arnold,
234 Mo.App. 154, 113 S.W.2d 143, 146.
In ordinary conversation, the word is descriptive of a person's wife and children. Adams v.
Carrie F. Wright Hospital, 82 N.H. 260, 132 A.
525, 526.
In restricted sense, the word "family" may be
used interchangeably with household. Collins v.
Northwest Casualty Co., 180 Wash. 347, 39 P.2d
986, 989, 97 A.L.R. 1235.
In secondary meaning, "family" means those
who are of the same lineage, or descend from one
common progenitor. Fratellanza Italiana v. Nugnes, 114 N.J.Eq. 185, 168 A. 589, 590.
The word conveys the notion of some relationship, blood
or otherwise. Collins v. Northwest Casualty Co., 180 Wash.
347, 39 P.2d 986, 989, 97 A.L.R. 1235.
The word may mean: a body of persons who live in one
house and under one head or manager, Lumbermens Mut.
Casualty Co. v. Pulsifer, D.C.Me., 41 F.Supp. 249, 252;
Collins v. Northwest Casualty Co. 180 Wash. 347, 39 P.2d
986, 989, 97 A.L.R. 1235. A collection of persons living
under a common roof, or constituting a domestic circle, In
re Keegan's Estate, Sur., 37 N.Y.S.2d 368, 370, 371. A collective body of any two persons living together in one
house as their common home for the time, In re Barnes'
Estate, 267 N.Y.S. 634, 149 Misc. 149; a collective body of
persons, consisting of parents or children, or other relatives, domestics, or servants, residing together in one house
or on the same premises, Sullivan v. Walburn, 9 N.J.Misc.
280, 154 A. 617, 619. A collective body of persons living
together in one house or within the curtilage. Sullivan v.
Walburn, 9 N.J.Misc. 280, 154 A. 617, 619. A collective body
of persons who form one household under one head and
one domestic government. Sullivan v. Walburn, 9 N.J.Misc.
280, 154 A. 617, 619. A collective body of persons who form
one household under one head and one domestic government and who have reciprocal natural and moral duties to
support and care tor one another, Krug v. Mills, 159 Md.
670, 152 A. 493, 495; Hartley v. Bohrer, 52 Idaho 72, 11 P.2d
616, 618. A collective body of persons who live in one
home under one head or management. Dalton v. Poinsett,
Mo.App., 164 S.W.2d 124, 128; Vaughn v. American Alliance
Ins. Co. of New York, 138 Kan. 731, 27 P.2d 212; a collective body of persons who live in one house or within the
same curtilage and under one head or management
(thereby including domestic servants, lodgers, boarders,
guests, etc.). Jarboe v. Jarboe, 106 Mo.App. 459, 79 S. W.
1162; Wilson v. Else, 204 Iowa 857, 216 N.W. 33, 37; City
of Mexico v. Gray, 203 Mo.App. 547, 219 S.W. 707, 709; Wilson v. Cochran, 31 Tex. 680, 98 Am.Dec. 553; a group, comprising immediate kindred, consisting of the parents and
their children, whether actually living together or not,
Uden v. B. F. Goodrich Co., 58 Ohio App. 151, 16 N.E.2d
277, 279; a group of blood relatives; a group of kindred
persons, Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616, 618;
a household. Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A.
617, 619; a household composed of parents or children, or
other relatives or domestics and servants, Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619; a small select corps
attached to an army chief, Boston-Edison Protective Ass'n
v. Paulist Fathers, 306 Mich. 253, 10 N.W.2d 847, 849, 148
A.L.R. 364; a whole sect, such as Shakers, Boston-Edison
Protective Ass'n v. Paulist Fathers, 306 Mich. 253, 10
N.W.2d 847, 849, 148 A.L.R. 364; all members of the household living under the authority of the head thereof, Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619; all persons of the blood of a common ancestor, Collins v. Northwest Casualty Co., 180 Wash. 347, 39 P.2d 986, 989, 97
A.L.R. 1235; all the relations who descend from a common
ancestor or who spring from a common root; all who are
descended from a not too distant common progenitor, In
re Lund's Estate, 26 Ca1.2d 472, 159 P.2d 643, 655; an entire
household. Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A.
617, 619; any group of persons closely related by blood, In
re Schmidt's Estate, 289 N.Y.S. 247, 250, 159 Misc. 373;
any group of persons constituting a distinct domestic body,
Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619; or
socf11 body, Boston-Edison Protective Ass'n v. Paulist
Fathers, 306 Mich. 253, 10 N.W.2d 847, 849, 148 A.L.R. 364;
group of parents and children founded on principles of monogamy, In re Schmidt's Estate, 289 N.Y.S. 247, 250, 159
Misc. 373; immediate domestic circle of a particular person, Collins v. Northwest Casualty Co., 180 Wash. 347, 39 P.
2d 986, 989, 97 A.L.R. 1235; immediate members of one's
household, Niemes v. Niemes, 97 Ohio St. 145, 119 N.E. 503,
506; members of the domestic circle, Sullivan v. Walburn,
9 N.J.Misc. 280, 154 A: 617, 619; one or more persons living
together in same house who are supported by one in whole
or in part and are dependent on him therefore, where . he is
under natural or moral obligation to render such support,
Umbarger v. State Farm Mut. Automobile Ins. Co., 218
Iowa 203, 254 N.W. 87; the genealogical stock from which
a man and those related to him by blood have sprung,
Albright v. Albright, 116 Ohio St. 668, 157 N.E. 760, 764;
the personnel of the home. Sullivan v. Walburn, 9
N.J.Misc. 280, 154 A. 617, 619; those members of the household who are dependent on the householder to whom he
owes some duty, Cheshire v. Burlington, 31 Conn. 326;
those who are of the same lineage, or descend from one
common progenitor, Fratellanza Italiana v. Nugnes, 114
N.J.Eq. 185, 168 A. 589, 590; those who live in one house,
In re Lund's Estate, 26 Ca1.2d 472, 159 P.2d 643, 655; those
who live in same household subject to general management
and control of the head thereof, McGee v. Crawford, 205
N.C. 318, 171 S.E. 326, 327; those who live with the pater
familias, Vaughn v. American Alliance Ins. Co. of New
York, 138 Kan. 731, 27 P.2d 212; Indemnity Ins. Co. of
North America v. Sanders, 169 Okl. 378, 36 P.2d 271, 273;
those whom it is the natural or moral duty of one to support, or who are dependent on him for support, Finn v.
Eminent Household of Columbia Woodmen, 163 Ky. 187,
173 S.W. 349, 350.
The word may mean, include or embrace an adult child,
Watson v. Burley, 105 W.Va. 416, 143 S.E. 95, 96, 64 A.L.R.
839; Yadon v. Yadon, 202 Ark. 634, 151 S.W.2d 969, 970;
aunts, In re Schmidt's Estate, 289 N.Y.S. 247, 250, 159 Misc.
373; blood relatives, Boston-Edison Protective Ass'n v.
Paulist Fathers, 306 Mich. 253, 10 N.W.2d 847, 849; In re
Keegan's Estate, Sur., 37 N.Y.S.2d 368, 370, 371; children,
In re Dooling's Will, 285 N.Y.S. 603, 609, 158 Misc. 333; In
re Schmidt's Estate, 289 N.Y.S. 247, 250, 159 Misc. 373;
cousins, In re Schmidt's Estate, 289 N.Y.S. 247, 250, 159
Misc. 373; father and child, Hinds v. Buck, 177 Tenn. 444,
150 S.W.2d 1071, 1072; father, mother, and all children,
wherever they may reside, Barrett v. Commercial Standard
Ins. Co., Tex.Civ.App., 145 S.W.2d 315, 318; group of parents and children founded on principle of monogamy, In re
Schmidt's Estate, 289 N.Y.S. 247, 250, 159 Misc. 373; husband and wife, In re De Nisson's Guardianship, 197 Wash.
265, 84 P.2d 1024, 1027, 1028; Boston-Edison Prctective
Ass'n v. Paulist Fathers, 306 Mich. 253, 10 N.W.2d 847, 849;
Hinds v. Buck, 177 Tenn. 444, 150 S.W.2d 1071, 1072; husband and wife and their children, Franklin Fire Ins. Co.
728
FAMILY
v. Shadid, Tex.Com.App., 68 S.W.2d 1030, 1032; State ex
rel. Kemp v. Arnold, 234 Mo.App. 154, 113 S.W.2d 143, 146;
husband or wife and children. In re Keegan's Estate, Sur.,
37 N.Y.S.2d 368, 370, 371; parents, In re Schmidt's Estate,
289 N.Y.S. 247, 250, 159 Misc. 373; parents and children, In
re Schmidt's Estate, 289 N.Y.S. 247, 250, 159 Misc. 373;
Uden v. B. F. Goodrich Co., 58 Ohio App. 151, 16 N.E.2d
277, 279; parents, children, and servants, and, as the case
may be, lodgers or boarders, Cleaves v. Funk, D.C.Okl.,
3 F.Supp. 804, 805; In re Schmidt's Estate, 289 N.Y.S. 247,
250, 159 Misc. 373; parents or children, or other relatives,
or domestics and servants, Sullivan v. Walburn, 9 N.J.Misc.
280, 154 A. 617, 619; parents with their children whether
they dwell together or not, In re Schmidt's Estate, 289
N.Y.S. 247, 250, 159 Misc. 373; Higgins v. Safe Deposit &
Trust Co. of Baltimore, 127 Md. 171, 96 A. 322, 323; spouse
and the issue of designated person, and no other persons,
Restatement, Property, § 293; uncles, In re Schmidt's
Estate, 289 N.Y.S. 247, 250, 159 Misc. 373.
Sisters of a religious order who were employed in hospital and lived together in a community as members of a
"family". Goss v. Klipfel, 112 Colo. 87, 146 P.2d 217, 218.
Son-in-law is not a member of father-in-law's family, nor
is his daughter, after she becomes son-in-law's wife. Bryant v. Keen, 43 Ga.App. 251, 158 S.E. 445, 446.
Widow who lived with her children in her father-in-law's
house and received board for herself and children for keeping house was member of father-in-law's "family". Ho111baugh v. School Dist. No. 89, 131 Neb. 727, 269 N.W. 819,
820.
Allowances
Where marriage between decedent and his widow
occurred years before decedent's death, parties lived
together for about three weeks and never resumed their
relationship as husband and wife, widow was not entitled
to statutory allowance for the benefit of decedent's family.
In re Feciuch's Estate, Sur., 26 N.Y.S.2d 390, 391.
Widow constitutes "family" within statute providing for
allowance for maintenance from husband's estate. In re
Hilleware's Estate, 159 Wash. 580, 294 P. 230, 231.
Word "family" in code provision authorizing family
allowance where property set apart is insufficient for support of widow and children, does not include husband, Hills
v. Superior Court in and for Los Angeles County, 207 Cal.
666, 279 P. 805, 806, 65 A.L.R. 266.
Beneficial and fraternal associations
As used in beneficial association's by-law providing that
death benefit should be payable to member's family, the
word means next of kin, including widow. Fratellanza
Italiana v. Nugnes, 114 N.J.Eq. 185, 168 A. 589, 590.
As used in statutes or charters relating to who may
become beneficiaries in fraternal associations, the word is
not to receive a restrictive construction, and it may include
stepchildren. Brotherhood of Locomotive Firemen and
Enginemen v. Hogan, D.C.Minn., 5 F.Supp. 598, 603.
When used in constitution of benefit society, declaring its
purpose among others as that of aiding the families of
members, the word means such persons as habitually reside
under one roof and form one domestic circle, or such persons as are dependent on each other for support or among
whom there is legal or equitable obligation to furnish support and in its widest scope it would include all descendants
of a common progenitor, Logan v. St. Louis Police Relief
Ass'n, Mo.App., 133 S.W.2d 1048, 1049, 1050.
Compensation Law
A collective body of persons who live in one house and
under one head or management is the significance ordinarily attributed to the word "family". Roney's Case, 316
Mass. 732, 56 N.E.2d 859, 864, 866.
Deceased adult son was a member of his parents' "family" though at time of his death he lived apart from his
parents but contributed to support of parents. Baker v.
Western Power & Light Co., 147 Kan. 571, 78 P.2d 36, 40.
Persons related by kinship or marriage, though not living
in same household, may be members of "family". Moore's
Case, 294 Mass. 557, 3 N.E.2d 5.
Descent and descendants
As used in act changing descent as between relatives of
half blood, "family" comprehends only the descendants
of ancestor, those who have his blood running in their
veins; in that sense is nearly if not quite of same import
as the word "issue." Ryder v. Myers, 113 N.J.Eq. 360, 167
A. 22, 24.
The word "family" may mean: all descendants of a
common progenitor, Logan v. St. Louis Police Relief Ass'n,
Mo.App., 133 S.W.2d 1048, 1049, 1050; In re Lund 's Estate,
26 Ca1.2d 472, 159 P.2d 643, 645; those who are of the same
lineage, or descend from one common progenitor. Fratellanza Italiana v. Nugnes, 114 N.J.Eq. 185, 168 A. 589, 590.
Homestead and exemption laws
A "family" is a collection of persons living together
under one head, Holsomback v. Slaughter, 177 Miss. 553,
171 So. 542. 543; a collection of persons living together,
where there is an obligation, legal or moral, on head of the
house to support the others or some of them, Logue v. Von
Almen, 379 Ill. 208, 40 N.E.2d 73, 80, 140 A.L.R. 251; a collective body of persons, consisting of parents or children, or
other relatives, domestics, or servants, residing together
in one house or upon the same premises, and person to be
member of family must be member in good faith, Lobban
v. Vander Vries Realty & Mortgage Co., 48 Ariz. 180, 60
P.2d 933, 935; a collective body of persons who live in one
house and under one head or manager, Hurt v. Perryman,
173 Tenn. 646, 122 S.W.2d 426, 427; a group of two or more
persons dwelling together under one head, and which cannot consist of but one person, Zuniga v. Evans, 87 Utah,
198, 48 P.2d 513, 524, 101 A.L.R. 532.
A husband dying leaving a wife from whom he was not
judicially separated left a "family". In re Zalewski's
Estate, 30 N.Y.S.2d 658, 664, 177 Misc. 384.
An unmarried adult daughter who remains continuously
with the "family" is member. Reconstruction Finance
Corporation v. Burgess, Tex.Civ.App., 155 S.W.2d 977, 980.
Constitution and statute exempting homestead in each
"head of a family" include not only a father, or husband,
in his lifetime, but a widow, and after death of both, any
minor children. Whitfield v. People's Union Bank & Trust
Co., 168 Tenn. 24, 73 S.W.2d 690, 691.
"Family", continues to exist so long as widow lives and
remains widow. Miers v. Miers, 160 Miss. 746, 133 So. 133,
134.
Husband who, after wife had abandoned him and remarried without obtaining divorce, purchased release of wife's
right in his estate and abandoned her held not entitled to
exemption provided on death of person leaving family. In
re Schmidt's Estate, 287 N.Y.S. 44, 47, 247 App.Div. 505.
Husband, who had lived apart from wife prior to her
death and had not contributed to her support held entitled
to exemption provided on death of person having family.
In re Gluer's Will, 278 N.Y.S. 994, 155 Misc. 41.
Persons who may constitute a family include: husband
and wife. Bigelow v. Dunphe, 144 Fla. 330, 198 So. 13;
husband and wife living together, Miller v. Finegan, 26 Fla.
29, 7 So. 140, 6 L.R.A. 813; Oppenheim v. Myers, 99 Va.
582, 39 S.E. 218; Dye v. Cooke, 88 Tenn. 275, 12 S.W. 631,
17 Am.St.Rep. 882; husband and wife so long as marriage
continues in existence, In re Brown's Will, 274 N.Y.S. 924,
153 Misc. 282; mother and children living under father's
authority, Washington Bank & Trust Co. v. Carrier, 178 La.
902, 152 So. 560, 561; school teacher on whom moral obligation rested to support and care for her sister. Standard
Paving Co. v. Tolson, Tex.Civ.App., 86 S.W.2d 789, 791.
Sister, owning property, and semi-invalid brother, who was
cared for and supported by sister, and younger sister, who
contributed to household expenses. Real Estate Land Title
& Trust Co. v. Street, Tex.Civ.App., 85 S.W.2d 341, 342;
stepchildren and stepfather living together after stepfather's divorce from children's mother, Smith Bros. v.
Lucas, Tex.Com.App., 26 S.W.2d 1055, 1056. With particular reference to homestead laws, one parent and his or her
children; Carle v. Bamberger, 53 Okl. 777, 158 P. 599, 600;
Solnar v. Solnar, 205 Iowa, 701, 216 N.W. 288, 290; and
even a widow or widower, though without children; Coleman v. Bosworth, 180 Iowit, 975, 164 N.W. 238, 240; may
constitute a "family." See, also, In re Hooper's Estate,
117 Wash. 463, 201 P. 740, 742.
729
FAMILY
Test of whether husband has a "family" within statute
providing for exemptions to widow if husband dies having
a family cannot be measured by number of years husband
and wife lived apart nor by distance of miles separating
them. In re Brown's Will, 274 N.Y.S. 924, 153 Misc. 282.
To constitute family, status must be social and head of
family must be legally or morally obligated to support
other members, who must be dependent on such support.
United Fidelity Life Ins. Co. v. Plainview Building & Loan
Ass'n, Tex.Civ.App., 81 S.W.2d 1092, 1093; Lobban v. Vander Vries Realty & Mortgage Co., 48 Ariz. 180, 60 P.2d 933,
935.
To constitute family there must be one whom law designates or recognizes as head of family who by natural ties
or by legal or moral obligation is under duty to support
others of the household. Owens v. Altsheller & Co., 263
Ky. 727, 93 S.W.2d 844, 846.
To constitute persons living with another in same house
a "family", it must appear that they are being supported
by that other in whole or in part, and are dependent on
him therefor, and that he is under a natural or moral
obligation to render such support. Poffinbarger v. Administrator of Poffinbarger's Estate, 206 Iowa 961, 221 N.W. 550.
Where relatives live together because such arrangement
is more convenient or economical, or for reasons of friendship or affection, such relation does not constitute them
"family". Rock Island Bank & Trust Co. v. Lamont, 361
Ill. 432, 198 N.E. 430.
Household
A "family" is a collective body of persons who form
one household under one head and one domestic government, Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619;
a collective body of persons forming one household under
one head and domestic government, having reciprocal,
natural and moral duties to care for one another. Hartley
v. Bohrer, 52 Idaho 72, 11 P.2d 616, 618; Krug v. Mills, 159
Md. 670, 152 A. 493, 495; a household, Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619; a household composed of parents or children or other relatives, or domestics
and servants, Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A.
617, 619; all members of the household living together
under the authority of the head thereof, Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619; all persons who
dwell together under a common head as a household, Hoff
v. Hoff, 132 Pa.Super. 431, 1 A.2d 506, 508; an entire Household, Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619;
the immediate members of one's household, as wife, children, brothers, and sisters or father and mother. Niemes
v. Niemes, 97 Ohio St. 145, 119 N.E. 503, 506; those who
live in same household subject to general management and
control of the head thereof, McGee v. Crawford, 205 N.C.
318, 171 S.E. 326, 327.
Family and household are substantially synonymous,
Umbarger v. State Farm Mut. Automobile Ins. Co., 218
Iowa 203, 254 N.W. 87; the words are often used interchangeably, Indemnity Ins. Co. of North America v.
Sanders, 169 Okl. 378, 36 P.2d 271, 273 ; Brovdy v. Jones &
Laughlin Steel Corporation, 145 Pa.Super. 602, 21 A.2d
437, 438; while in a restricted sense the word "family"
may be used interchangeably with "household," there is a
difference in the ideas suggested by the two words, Collins
v. Northwest Casualty Co., 180 Wash. 347, 39 P.2d 986, 989,
97 A.L.R. 1235.
Insane Persons
Under statute providing for support of family of insane
person out of his estate, "family" includes those whom insane person under normal circumstances would be under
legal duty to support, such as wife and children, and under
some circumstances may include others. Woman who had
become insane person's stepmother when he was infant and
had cared for him during his infancy and to whose support
he had contributed during his minority and until he joined
Army held member of his "family" so as to be entitled to
support. In re Freeman's Estate, 171 Miss. 147, 157 So.
253.
Insurance
Accident policy condition that insurer should have opportunity to be present at autopsy performed with consent of insured's "family" held to apply to person who, as
surviving wife or husband, or next of kin, had right of
possession of body. If insured left no wife, and sister
was nearest kin, sister held "family" within such condition. Sheehan v. Commercial Travelers' Mut. Acc. Ass'n,
283 Mass. 543, 186 N.E. 627, 631, 88 A.L.R. 975.
Pauper
Duty of town to support "family" of pauper includes
only those persons whom head of family is bound by
law to support. Town of St. Johnsbury v. Town of Sutton,
102 Vt. 451, 150 A. 133, 135.
Reservation lands
Words "family" and "heirs," within statute providing
for holding of reservation lands by Seneca Indians, mean
family and heirs which Indians themselves recognize.
Woodin v. Seeley, 141 Misc. 207, 252 N.Y.S. 818, 826.
Servants
A family is a body of persons who live in one household
under one head or management; a household including
parents, children and servants, and, as the case may be,
lodgers or boarders. Cleaves v. Funk, D.C.Okl., 3 F.Supp.
804, 805.
Domestic servants, when living in establishment, are included in term "family" for purposes of serving summons.
Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619.
Service of Process
A domestic servant may be included in term "family."
Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619.
Defendant's mother, who maintained permanent home,
but who usually visited in defendant's home during winter
months, held not a member of defendant's "family."
Cleaves v. Funk, C.C.A.Okl., 76 F.2d 828, 829.
The word "family", as used in acts regulating service of
process, is given its restricted meaning and held to include
only a father, a mother, and their children, but the relationship between the person receiving a 'copy of the summons and the person on whom service is attempted must
be more confidential and intimate than in most employer
and employee or master and servant relationships in order
that the receipt by the former may be deemed valid service on the latter. Moore v. Kasishke, 189 Okl. 336, 117 P.2d
113, 115, 136 A.L.R. 1502.
Support of persons
A "family" is a collection of persons living together under one head, under such circumstances or conditions that
the head is under a legal or moral obligation to support
the other members, and the other members are dependent
upon him for support, Hurt v. Perryman, 173 Tenn. 646, 122
S.W.2d 426, 427; those entitled by law to look to person
for support and protection, In re Fulton's Estate, 15 Cal.
App.2d 202, 59 P.2d 508, 510; those members of the household who are dependent on the householder to whom he
owes some duty, Brokaw v. Ogle, 170 Ill. 115, 48 N.E. 394;
those whom it is the natural or moral duty of one to support, or who are dependent on him for support, Finn v.
Eminent Household of Columbia Woodmen, 163 Ky. 187, 173
S. W. 349, 350.
Bankrupt whose minor children were living separately
from him in custody of his divorced wife held person having "family dependent on him for support". In re McFarland, D.C.Wash., 49 F.2d 342, 343.
"Family," within statute imposing liability for articles
going to support of "family," held to include wife as well
as children. Baledes v. Greenbaum, 112 Conn. 64, 151 A.
333, 334.
He upon whom law imposes duty to support growing out
of status and not out of contract, and persons to whom he
owes this duty if dwelling together in a domestic establishment constitute a "family" of which he is the head.
Owens v. Altsheller & Co., 263 Ky. 727, 93 S.W.2d 844, 846.
Householder's sister and her husband living with householder and dependent upon him may constitute "family".
Rock Island Bank & Trust Co. v. Lamont, 361 III. 432, 198
N.E. 430.
Moral duty to support arising from ties of blood or possibly other similar relations will be sufficient to support
claim that one is head of a family. Owens v. Altsheller &
Co., 263 Ky. 727, 93 S.W.2d 844, 846.
730
FAMILY CAR DOCTRINE
Sister on whom moral obligation rested to support her
sister and such sister constituted "family." Standard Paving Co. v. Tolson, Tex.Civ.App., 86 S.W.2d 789, 791.
To constitute "family" within homestead or exemption
provision there must be legal or moral or natural obligation of one to support other members and corresponding dependence of others. L. E. Whitham & Co. v. Briggs' Estate, Tex.Com.App., 58 S.W.2d 49; Lobban v. Vander Vries
Realty & Mortgage Co., 48 Ariz. 180, 60 P.2d 933, 935;
Wineblood v. Payne, 129 Okl. 103, 263 P. 669, 671.
Town of residence of head of "family" held not liable
to reimburse another town for support furnished stepchildren. Town of St. Johnsbury v. Town of Sutton, 102
Vt. 451, 150 A. 133, 135.
Wills
As respects construction of will, the word "family" denotes a group of persons related to each other by marriage
or blood living together under a single roof and comprising a household whose head is usually the father or husband, but the word is not one of inflexible meaning and
its significance to a large extent depends upon the context
and the purpose for which it is employed. The word "family" includes those who have left father's home and have
married and established their own homes when context
and purpose indicate such significance should be attributed
to the word. Magill v. Magill, 317 Mass. 89, 56 N.E.2d 892,
894, 896, 154 A.L.R. 1406.
Testamentary precatory trust created in favor of any of
testatrix' "family" held to comprehend those who would
take under statute of distribution. Ryder v. Myers, 113 N.
J.Eq. 360, 167 A. 22, 24.
Testatrix in creating trust for benefit of granddaughter
during her life and providing that upon granddaughter's
death without issue principal should go to then living
members of granddaughter's father's "family" did not use
word family to designate those who comprised her son's
household, where testatrix knew when she executed will
that son was dead and that his widow and daughter made
their homes with testatrix and his other children lived
separate from each other. Magill v. Magill, 317 Mass. 89,
56 N.E.2d 892, 894, 896, 154 A.L.R. 1406.
The use of the word "family" disclosed a testamentary
intent to make a gift to a class including those who would
have been distributees of the deceased brothers of testatrix
had such brothers died as of the date of death of testatrix
and included therein the widows of such brothers. In re
Keegan's Estate, Sur., 37 N.Y.S.2d 368, 370, 371.
Under will of widow, providing that "I wish my husband's family to share and share alike the remainder of
my property," the word "family" is equivalent to "heirs,"
In re McCrum's Estate, 97 Cal.App. 576, 275 P. 971, 972.
When the word "family" is used to designate those entitled to receive a legacy, the intended meaning of the
word depends upon the context of the will and upon a
showing as to whom were the objects of the testator's
bounty by reason of kinship or friendship. Where a legacy
was to a class, consisting of family of testatrix' deceased
brother who was survived by widow and three children,
each of which children maintained separate households,
"family" included widow and three children. In re Keegan's Estate, Sur., 37 N.Y.S.2d 368, 370, 371.
Where testatrix created trust for benefit of granddaughter during her life and, knowing that one of granddaughter's brothers was already dead, provided that any issue
granddaughter might leave should share equally with then
living members of granddaughter's father's "family" in
division of principal of trust and thereafter upon death of
another grandson leaving a widow and two infant children
executed a codicil giving grandson's legacy under another
provision of will to his widow, word "family" was used to
designate lineal descendants of granddaughter's father
where such construction was consistent with provisions of
the will and carried out intention of testatrix. Magill v.
Magill, 317 Mass. 89, 56 N.E.2d 892, 894, 896, 154 A.L.R.
1406.
FAMILY ARRANGEMENT. A term denoting an.
agreement between a father and his children, or
between the heirs of a deceased father, to dispose
of property, or to partition it in a different manner than that which would result if the law alone
directed it, or to divide up property without administration. In these cases, frequently, the mere
relation of the parties will give effect to bargains
otherwise without adequate consideration. 1 Chit.
Pr. 67; 1 Turn. & R. 13; Boyd v. Robinson, 93
Tenn. 1, 23 S.W. 72; De Hatre v. De Hatre, 50 Mo.
App. 1.
FAMILY AUTOMOBILE DOCTRINE. The doctrine is that one who owns and maintains an automobile for the general use of his household
makes use of automobile for such purposes a part
of his business so that any member using automobile for those purposes under general authority to
do so becomes his representative, for whose negligence he is responsible. Durso v. A. D. Cozzolino,
Inc., 128 Conn. 24, 20 A.2d 392, 394.
It is an extension of the principle of respondeat superior to the relation created by operation
of family use automobile. Buss v. Wachsmith,
190 Wash. 673, 70 P.2d 417, 421. See, also, Family
Car Doctrine and Family Purpose Doctrine.
It is based on theory that members of family were en-
gaged in a joint enterprise or that child was agent of parents. Paulson v. McMillan, 8 Wash.2d 295, 111 P.2d 983,
989.
If an automobile is owned and maintained by a family
corporation for general use of a family, such as that of
corporation's manager and one of its principal stockholders,
corporation may be held liable under the "family automobile doctrine" to third parties. Durso v. A. D. Cozzolino,
Inc., 128 Conn. 24, 20 A.2d 392, 394.
FAMILY BIBLE. A Bible containing a record of
the births, marriages, and deaths of the members
of a family. As to its admissibility in evidence,
see Whart. Ev. § 219; Tayl. Ev. 572; 1 Greenl. Ev.
§ 104; L. R. 1 Ex. 255; Greenleaf v. R. Co., 30
Iowa, 301; Southern Life Ins. Co. v. Wilkinson, 53
Ga. 535; Weaver v. Leiman, 52 Md. 709.
FAMILY CAR. Automobile used to send owner's
children to school was "family car." Coleman v.
Rollo, Tex.Civ.App., 50 S.W.2d 391, 392.
FAMILY CAR DOCTRINE. The doctrine rests
upon the basis that the automobile is furnished
by the husband in his individual capacity and as
common-law head of the family for the use of the
family, and not as the agent of the community.
Donn v. Kunz, 52 Ariz. 219, 79 P.2d 965. It rests
on theory that operator is husband's agent and
runs automobile in husband's "business," Hart v.
Hogan, 173 Wash. 598, 24 P.2d 99; that wife is
husband's agent in carrying out one of the purposes for which the automobile is purchased and
owned, Moffitt v. Krueger, 11 Wash.2d 658, 120 P.
2d 512, 513.
Under the doctrine, a father furnishing automobile for pleasure and convenience of family makes
the use of automobile by family his business and
any member of family driving automobile with
father's express or implied consent is the father's
agent and the father is liable for the member's
negligence. Donn v. Kunz, 52 Ariz. 219, 79 P.2d
965, 966, 967.
See, alsp, Family Automobile Doctrine and Family Purpose Doctrine.
731
FAMILY CAR DOCTRINE
The person upon whom it is sought to fasten liability
under the doctrine must own, provide, or maintain an automobile for the general use, pleasure, and convenience of
the family. Liability under the doctrine is not confined
to owner or driver. It depends upon control and use. A
widow, wife, or mother may be liable as well as a husband
or father. Hart v. Hogan, 173 Wash. 598, 24 P.2d 99. To
bring a case within doctrine, it must be shown that automobile was in fact a family pleasure automobile, but automobile purchased and used for business purposes may come
within the doctrine, where it is also used for family pleasure. ; Dillon v. Burnett, 197 Wash. 371, 85 P.2d 656, 658.
FAMILY COUNCIL. See Family Arrangement;
Family Meeting; Conseil de Famille.
FAMILY DEPENDENT UPON HIM FOR SUPPORT. Bankrupt whose minor children were living separately from him in custody of his divorced
wife held to have "family dependent on him for
support." In re McFarland, D.C.Wash., 49 F.2d
342, 343.
FAMILY EXPENSES. Obligations incurred for
something intended for the use or comfort of the
collection spoken of as the family, as distinguished
from individual or personal expenses. Vose v.
Myott, 141 Iowa, 506, 120 N.W. 58, 21 L.R.A.,N.S.,
277.
Purchase price of team of horses used on farm was a
"family expense". Wall v. Crawford, 103 Colo. 66, 82 P.2d
749, 750.
Tuition for education of children of taxpayer held "family expense". Channing v. U. S., D.C.Mass., 4 F.Supp. 33,
34.
FAMILY GROUP, within purview of the family
ear doctrine, is not confined to persons related to
the owner, but includes members of the collective
body of persons living in his household for whose
convenience the car is maintained and who have
authority to use it. Smart v. Bissonette, 106 Conn.
447, 138 A. 365, 366; Hart v. Hogan, 173 Wash. 598,
24 P.2d 99. See Family Purpose Doctrine, infra.
The children of trust settlor including an adult son are
members of the settlor's "family group" for income tax
purposes. Commissioner of Internal Revenue v. Wilson, C.
C.A.?, 125 F.2d 307, 310.
FAMILY HOTEL. A "family hotel", as distinguished from an ordinary "public hotel", in construction of covenant, is designed primarily for
the accommodation of permanent guests. Kew
Gardens Corporation v. Ciro's Plaza, 175 Misc.
475, 23 N.Y.S.2d 957, 959.
FAMILY LIBRARY. Which one spouse cannot
mortgage without consent of other may be composed of such books as family or head of family
chooses to select. Lupton v. Merchants' Nat. Bank
of Topeka, 140 Kan. 615, 38 P.2d 125, 127.
FAMILY MEETING. An institution of the laws
of Louisiana, being a council of the relatives (or,
if there are no relatives, of the friends) of a minor,
for the purpose of advising as to his affairs and
the administration of his property.
The family meeting is called by order of a judge, and
presided over by a justice or notary, and must consist of
at least five persons, who are put under oath. In re Bothick, 44 La.Ann. 1037, 11 So. 712; Civ. Code La. art. 305.
It corresponds to the "conseil de famille" of French law,
q. v. See Lemoine v. Ducote, 45 La.Ann. 857, 12 So. 939;
Commaux v. Barbin, 6 Mart.La. N.S. 455.
FAMILY PHYSICIAN. A physician who regularly attends and is consulted by the members of the
family as their medical adviser; but he need not
attend in all cases or be consulted by all the
members of the family. Price v. Ins. Co., 17 Minn.
519, Gil. 473, 10 Am.Rep. 166; Reid v. Ins. Co., 58
Mo. 424; Cromeens v. Sovereign Camp, W. O. W.,
Mo.App., 247 S.W. 1033, 1034.
FAMILY POOL. A species of contract that must
Lave something to stand on besides wishful thinking, and the parties to it must be conscious that
they are in it and contributing to it to be bound
by it. Sherman v. Florida Tar & Creosote Corp.,
160 Fla. 696, 36 So.2d 267, 269.
FAMILY PURPOSE DOCTRINE. A doctrine that
the owner of a car, who gives it over to the use
of his family and permits it to be operated by the
members thereof, is liable for the injuries inflicted
while being operated by a member of the family.
Turoff v. Burch, 60 App.D.C. 221, 50 F.2d 986, 987;
McNamara v. Prother, 277 Ky. 754, 127 S.W.2d
160, 161; Schwartz v. Johnson, 152 Tenn. 586, 28a
S.W. 32, 33, 47 A.L.R. 323. The doctrine, that the
owner of an automobile purchased or maintained
for the pleasure of his family is liable for injuries inflicted by the machine while being used
by the members of the family for their own pleasure. Doss v. Monticello Electric Light & Power
Co., 193 Ky. 499, 236 S.W. 1046, 1047; Thompson
v. Kansas City Rys. Co., 113 Kan. 74, 213 P. 633.
See, also, Family Automobile Doctrine; Family
Car Doctrine; Family Group.
The doctrine imputes relationship of principal and agent
where one maintains an automobile for pleasure or other
use of member of his family. United States Fidelity &
Guaranty Co. v. Brann, 297 Ky. 381, 180 S.W.2d 102, 104;
it is based on theory that each family member in using such
car for own pleasure is carrying out the purpose for which
it is furnished, and is the owner's agent or servant, Behseleck v. Andrus, 60 S.D. 204, 244 N.W. 268, 269, 88 A.L.R.
596; Hackley v. Robey, 170 Va. 55, 195 S.E. 689, 692; Ener
v. Gandy, Tex.Civ.App., 141 S.W.2d 772, 775. It is founded
upon principles of agency or of master and servant. Kalil
v. Spivey, 70 Ga.App. 84, 27 S.E.2d 475, 479; Baptist v.
Slate, 162 Va. 1, 173 S.E. 512, 515; It is restricted to automobiles maintained by owner for comfort, pleasure, and
convenience of members of his family. Mitchell v. Mullen,
45 Ga.App. 285, 164 S:E. 278, 280; Commonwealth of Kentucky, for Use and Benefit of Kern, v. Maryland Casualty
Co. of Baltimore, Md., C.C.A.Ky., 112 F.2d 352, 356.
A father is not liable merely because he is head of family, but the one who owns or provides the automobile is
liable. McNamara v. Prather, 277 Ky. 754, 127 S.W.2d 160,
161, 162. A wife may be held liable for the torts of her
husband under the doctrine. Goldstein v. Johnson, 64 Ga.
App. 31, 12 S.E.2d 92, 94. Agency is the very genesis of the
doctrine, Vaughn v. Booker, 217 N.C. 479, 8 S.E.2d 603, 604,
605; Grandmother standing in loco parentis to grandson
was liable under the doctrine for grandson's negligent operation of her automobile. Rutherford v. Smith, 284 Ky.
592, 145 S.W.2d 533, 536; Where wife owned automobile,
husband was not liable under "family purpose doctrine,"
for minor son's negligent operation of the automobile, notwithstanding husband paid part of gasoline and garage
bills. McNamara v. Prather, 277 Ky. 754, 127 S.W.2d 160,
161, 162.
It has been said that the family purpose doctrine
has been accepted by the courts of about half of the
states. Jacobsen v. Dailey, 36 N.W.2d 711, 228 Minn. 201.
Among those states are Georgia, Nebraska, North Carolina, and Oregon.
•
On the other hand,
the doctrine has been specifically rejected, or not adopted, by fully one-half of the
732
FARE
FAMOSUS. In the civil and old English law. Relating to or affecting injuriously the character or
reputation; defamatory; slanderous; scandalous.
states, including California, Illinois, Mississippi, New
York, Pennsylvania, Virginia, and Wisconsin. In Minnesota it has been held that the doctrine has been su§
perseded by a financial responsibility statute (M.S. A.
170.54). Ellingboe v. Guerin, 36 N.W.2d 598, 228 Minn.
211. For a full discussion of the subject, see Blashfield,
Cyc. of Automobile Law and Prac., Perm.Ed., § 3111 et seq.
FAMOSUS LIBELLUS. A libelous writing. A
term of the civil law denoting that species of injuria which corresponds nearly to libel or slander.
FAMILY RELATION. A relationship which may
exist between one taken into the family by the
head of the family, notwithstanding the absence
of blood relationship or of legal adoption. Nelson
v. Poorman's Estate, Mo.App., 215 S.W. 753, 754.
FANAL. Fr. In French marine law. A large
lantern, fixed upon the highest part of a vessel's
stern.
Such relation exists : between two sisters when there
Is moral obligation on part of one to support and care for
the other and when necessity for such care and support
exists, Standard Paving Co. v. Tolson, Tex.Civ.App., 86 S.
W.2d 789, 791; when child, receives from parent services,
maintenance, or gifts reasonably frequent to lead to expectation of future enjoyment thereof. Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549, 551; Where brother owes
moral obligation to support sister and necessity for such
support exists, Central Life Assur. Soc. (Mutual) v. Gray,
Tex.Civ.App., 32 S.W.2d 259, 260. Where father. lives on
homestead after mother's death with two adult sons, his
only heirs, one of whom marries and remains on with father until father's death, Cumberland & Liberty Mills v.
Keggin, 139 Fla. 133, 190 So. 492, 493. Where there is legal
or moral obligation on head of family to support the other
members, and there is dependence upon such members for
support, Standard Paving Co. v. Tolson, Tex.Civ.App., 86
S.W.2d 789, 791.
FAMILY SERVICE RULE. Under "family-purpose doctrine" or "family-service rule" or "familyautomobile doctrine" or "family-car rule", family
head maintaining automobile for use of family is
liable for injury resulting from negligence of
minor son who is member of family while operating automobile with knowledge and consent of
family head for comfort or pleasure of family.
Cohen v. Whiteman, 75 Ga.App. 286, 43 S.E.2d 184,
186.
FAMILY SETTLEMENT. An agreement between
members of a family settling the distribution of
family property among them. Fitzgerald v. Nelson, 159 Or. 264, 79 P.2d 254, 255.
An arrangement or an agreement, between heirs of a
deceased person, by which they agree on distribution or
management of estate without administration by court
having jurisdiction of such administration proceedings.
Wright v. Saltmarsh, 174 Okl. 226, 50 P.2d 694, 703.
An agreement made between a father and his son or
children or between brothers to dispose of property in a
different manner from that which would otherwise take
place. Peterson v. Hegna, 158 Minn. 289, 197 N.W. 484, 487.
A term of practically the same signification as "family arrangement," q. v. supra. See Willey v. Hodge, 104 Wis.
81, 80 N.W. 75, 76 Am.St.Rep. 852.
Where decedent's widow and son were only parties concerned in distribution of decedent's estate, an agreement
between the widow and son for division of the estate was
a "family settlement". Stark v. Stark, 201 Ark. 133, 143
S.W.2d 875, 878.
FAMILY USE. That use ordinarily made by and
suitable for the members of a household whether
as individuals or collectively. Spring Valley Water Works v. San Francisco, 52 Cal. 120. The supply of water in a municipal corporation for family
use includes the supply of jails, hospitals, almhouses, schools, and other municipal institutions;
id.
FANATIC. A religious enthusiast; a bigot; a
person entertaining wild and extravagant notions,
or affected by zeal or enthusiasm, especially upon
religious subjects.
Also, a person pretending to be inspired;—formerly applied to Quakers, Anabaptists, and all other sectaries, and
factious dissenters from the Church of England. St. 13
Car. II. c. 6. Jacob.
FANCIFUL TRADE-NAME. Trade-names are
"fanciful" when they do not, by their usual and
ordinary meaning, denote or describe products to
which they are applied, but indicate their purpose
by application and association. Skinner Mfg. Co.
v. General Foods Sales Co., D.C.Neb., 52 F.Supp.
432, 445.
FANEGA. In Spanish law. A measure of land
varying in different provinces, but in the Spanish
settlements in America consisting of 6,400 square
varas or yards. Diccionario de la Acad.; 2 White
Recop. 49; 138.
FAQUEER, See Fakir.
FARANDMAN. In Scotch law. A traveler or
merchant stranger. Skene.
FARDEL OF LAND. In old English law. The
fourth part of a yard-land. Spelman. Noy says
an eighth only, because, according to him, two
fardels make a nook, and four nooks a yard-land.
Wharton. See Noy, Complete Lawyer 57; Cowell;
Cunningham, Law Dict.
FARDELLA. In old English law. A bundle or
pack; a fardel. Fleta, lib. 1, c. 22, § 10.
FARDING-DEAL. The fourth part of an acre of
land. Spelman.
FARE. A voyage or passage by water; also the
money paid for a passage either by land or by water. Cowell.
The sum paid or to be paid for carrying a passenger. Chase v. New York Cent. R. Co., 26 N.Y.
526; Clark v. Southern Ry. Co., 69 Ind.App. 697,
119 N.E. 539, 543.
As used in connection with interstate transportation,
means a rate of charge for the carriage of passengers, as
approved by the proper governmental agency. Krause v.
Pacific Mut. Life Ins. Co. of California, 141 Neb. 844, 5 N.
W.2d 229, 232.
In case of a water company it means the tax or compensation which the company may charge for furnishing a
supply of water. McNeal Pipe & Foundry Co. v. Howland,
111 N.C. 615, 16 S.E. 857, 20 L.R.A. 743.
733
FARE
FARE 1AYING PASSENGER is a passenger
who pays the legal fare. Krause v. Pacific Mut.
Life Ins. Co. of California, 141 Neb. 844, 5 N.W.
2d 229, 232.
FARINAGIUM. A mill; a toll of meal or flour.
Jacob; Spelman.
FARLEU (or FARLEY). Money paid by tenants
in lieu of a heriot. It was often applied to the
best chattel, as distinguished from heriot, the best
beast. Cowell.
FARLINGARII. Whoremongers; adulterers.
FARM, n. A body of land under one ownership,
devoted to agriculture, either to raising crops, or
pasture, or both. Dorsett v. Watkins, 59 Oki. 198,
158 P. 608, 9 A.L.R. 278. With the development
particularly of the western states, a large part of
whose wealth consists of cattle, the word "farm"
has acquired a somewhat broader meaning, and in
its generic sense is as applicable to a stock farm
as to one where grain is raised. Porter v. Yakima
County, 77 Wash. 299, 137 P. 466, 467. A certain
amount of provision reserved as the rent of a
messuage. Spelman. A considerable tract of land
cultivated or used in some one of the usually
recognized ways of farming. Mattison v. Dunlap,
191 Okl. 168, 127 P.2d 140, 141. A term, a lease of
lands; a leasehold interest. 2 Bl.Comm. 17; 1
Reeve, Eng. Law, 301, note. The land itself, let
to farm or rent. 2 Bl.Comm. 368. Rent generally
which is reserved on a lease; when it was to be
paid in money, it was called "blanche firme."
Spelman; 2 Bl.Comm. 42.
Old English Law. A lease of other things than
land, as of imposts. There were several of these,
such as "the sugar farm," "the silk farm," and
farms of wines and currants, called "petty farms."
See 2 How. State Tr. 1197-1206.
The word has been defined to mean : a considerable tract
.of land, or a number of small tracts, devoted wholly or
partially to agricultural purposes or pasturage of cattle
but may also include woodland, Jones v. Holloway, 183
Md. 40, 36 A.2d 551, 554, 152 A.L.R. 933; A large tract or
portion of land taken by a lease under a yearly rent payable by the tenant, Tomlin, Law Diet. ; a parcel or group
of parcels of land cultivated as a unit, Supervisors of Manhelm Tp., Lancaster County, v. Workman, 154 Pa.Super.
146, 35 A.2d 747, 749; a piece of land held under lease for
cultivation; Supervisors of Manheim Tp., Lancaster County, v. Workman, 154 Pa.Super. 146, 35 A.2d 747, 749; a
piece of land used wholly or principally for agricultural
purposes. State Industrial Accident Commission v. Eggiman, 172 Or. 19, 139 P.2d 565, 567; a plot or tract of land
devoted to the raising of domestic or other animals;
as a chicken farm; a fox farm; Hagenburger v. City of
Los Angeles, 51 Cal.App.2d 161, 124 P.2d 345, 347; a portion
of land used for agricultural purposes, either wholly or in
part; a tract of land devoted in part, at least, to cultivation, for agricultural purposes, without reference to its extent, or to the tenure by which it is held. People ex rel.
Rogers v. Caldwell, 142 Ill. 434, 32 N.E. 691; Fleckles v.
Hille, 83 Ind.App. 715, 149 N.E. 915.
A tract of land devoted to agricultural purposes. Hagenburger v. City of Los Angeles, 51 Cal.App.2d 161, 124 P.2d
345, 347; a tract of land devoted to agriculture, stock raising, or some allied industry, Winship v. Inspector of Buildings of Town of Wakefield, 274 Mass. 380, 174 N.E. 476, 477;
:a tract of land devoted to general or special cultivation
under single control. Supervisors of Manheim Tp., Lancaster County, v. Workman, 154 Pa.Super. 146, 35 A.2d
747, 749.; a tract of land used for raisir.g crops or rearing
animals. Gordon v. Buster, 113 Tex. 382, 257 S.W. 220; a
wheat, fruit, dairy or market farm, Township of Marple
v. Lynam, 151 Pa.Super. 288, 30 A.2d 208, 210.
Both grazing and cultivated lands, sold on mortgage
foreclosure, constituted "farm," State ex rel. Wahluke Inv.
Co. v. Superior Court for Walla Walla County, 168 Wash.
142, 10 P.2d 986, 987.
The original meaning of the word was "rent," and by a
natural transition it came to mean the land out of which
the rent issued.
The term does not necessarily include only the land under cultivation and within a fence. It may include all
the land which forms part of the tract, and may also include several connected parcels under one control. Succession of Williams, 132 La. 865, 61 So. 852, 853.
The word "farm" within town zoning by-law, means land
used for production of crops, livestock grazing, raising of
hay for cows to produce milk and other dairy products„
raising of poultry and sale of chickens and eggs, or growing of fruit. Town of Lincoln v. Murphy, 314 Mass. 16, 49
N.E.2d 453, 455, 146 A.L.R. 1196.
Usually the chief messuage in a village or town whereto
belongs a great demesne of all sorts. Cowell; Cunningham, Law Diet. ; Termes de la Ley.
FARM, v. To lease or let; to demise or grant
for a limited term and at a stated rental.
FARM CROSSING. A roadway over a railroad
track at grade for the purpose of reaching tillage
land cut off by the track. True v. Maine Cent. R.
Co., 113 Me. 375, 94 A. 183, 184. See, also, In re
Colvin Street in City of Buffalo, 155 App.Div. 808,
140 N.Y.S. 882, 883.
A conveyance of strip of land across farm to railroad as
right of way, which reserved to grantor right to maintain
two "farm crossings" over right of way, is broad enough
to permit installation of an underground conduit for purpose of supplying electricity to farm of grantor for domestic and farm purposes. New York Cent. R. Co. v. Yarian,
719 Ind. 477, 39 N.E.2d 604, 607, 139 A.L.R. 455.
A farm crossing is a crossing used in connection with a
farm and not property within city limits. Chicago, M., St.
P. & P. R. Co. v. Cross, 212 Iowa 218, 234 N.W. 569, 572.
FARM LABOR. Agricultural employment and
farm labor are used as practically synonymous
and include all farm work and work incidental
thereto. Smythe v. Phoenix, 63 Idaho 585, 123 P.
2d 1010, 1012.
Ordinarily, the term "farm labor" connotes the tilling
of the soil, its products and the raising and caring for
such domestic animals as are usually found in those surroundings. Tucker v. Newman, 217 Minn. 473, 14 N.W.2d
767, 771, 772.
Under Unemployment Insurance Law an employee employed on a farm devoted to the raising of fur-bearing
animals was engaged in "farm labor". In re Bridges, 262
App.Div. 19, 28 N.Y.S.2d 312, 314.
FARM LABORER. Generally, a man hired to go
on a farm. Klein v. McCleary, 154 Minn. 498, 192
N.W. 106, 107. The term "farm laborer" is ordinarily synonymous with the term "hired man."
Lowe v. North Dakota Workmen's Compensation
Bureau, 66 N.D. 246, 264 N.W. 837, 107 A.L.R. 973.
One employed as a laborer on a farm, especially one
who does all kinds of farm work, In re Keaney, 217 Mass.
5, 104 N.E. 438; one employed in or about business of
farming. Pridgen v. Murphy, 44 Ga.App. 147, 160 S.E. 701,
702; one employed on a farm in customary types of farm
work or employed and paid directly by a farmer in transporting his raw produce. Cedarburg Fox Farms v. Industrial Commission, 241 Wis. 604, 6 N.W.2d 687, 689, 690 ;
one who devotes his time to ordinary farm labor as gainful occupation with some reasonable degree of regularity
and continuity, Adams v. Ross, 230 App.Div. 216, 243 N.Y.S.
734
FARMER
464, 466; Makeever v. Marlin, 92 Ind.App. 158, 174 N.E.
517, 518; one who labors on a farm in raising crops, or in
doing general farm work. H. Duys & Co. v. Tone, 125
Conn. 300, 5 A.2d 23, 28; Wayland v. Kleck, 57 Ariz. 135,
112 P.2d 207, 208..
On question whether the term as used in Workmen's
Compensation Acts includes an employee on a corn husking
or a grain threshing outfit, or the like, which goes from
one farm to another for compensation, the decisions are
conflicting. See Slycord v. Horn, 179 Iowa, 936, 162 N.W.
249, 252, 7 A.L.R. 1285. For cases contra, holding that such
an employee is not a farm laborer, see In re Boyer, 65 Ind.
App. 408, 117 N.E. 507, 508; Industrial Commission of State
of Colorado v. Shadowen, 68 Colo. 69, 187 P. 926, 927, 13
A.L.R. 952.
The term includes a compensation claimant hired to feed
and water poultry and clean poultry bins and houses and
collect eggs, Bennett v. Stoneleigh Farms, 254 App.Div.
790, 4 N.Y.S.2d 255, 256; a ranch laborer, Gordon v. Buster, 113 Tex. 382, 257 S.W. 220; a sheep herder, Davis v.
Industrial Commission, 59 Utah, 607, 206 P. 267, 268;
Finger v. Northwest Properties, 63 S.D. 176, 257 N.W. 121;
employee injured while carting firewood for domestic use
from a farm that employer was operating on shares, Butterfield v. Brown, 261 App.Div. 1022, 25 N.Y.S.2d 803, 804;
employee of independent contractor engaged in business of
spraying trees for owners of citrus orchards, Maryland
Casualty Co. v. Dobbs, 128 Tex. 547, 100 S.W.2d 349, 350.
Employee of owner of farm land employed solely to dig
ditch, Culpepper v. White, 52 Ga.App. 740, 184 S.E. 349;
farm hand injured while cranking tractor furnishing power
for buzz saw used to saw wood of employer's neighbor,
McAllister v. Cobb, 237 App.Div. 674, 263 N.Y.S. 349;
nurseryman's helper or employee, held "farm laborer",
Georgia Casualty Co. v. Hill, Tex.Civ.App., 30 S.W.2d 1055,
1057; In re Bronxville Nurseries, 258 App.Div. 1019, 17
N.Y.S.2d 95.
FARM LAND. A term applicable to all the land
contained in a farm, and not necessarily merely
to land which has been plowed. De Woffe v. Kupers, 106 Or. 176, 211 P. 927, 930.
FARM LEASE. A contract upon a printed lease
form, containing all provisions of standard Nebraska farm leases, was a "farm lease," notwithstanding inserted provision that first party employed second party to farm the premises and
would pay second party half the corn and hay. In
re Mulligan, D.C.Neb., 45 F.Supp. 763, 766.
FARM LET. Technical words in a lease creating
a term for years. Co. Litt. 45 b; 1 Washb. R. Pr.
Index, Lease. Operative words in a lease, which
strictly mean to let upon payment of a certain
e., in agricultural produce.
rent in farm;
FARM OUT. To let for a term at a stated rental.
Among the Romans the collection of revenue was farmed
out, and the same system existed in France before the revolution of 1789; in England the excise taxes were farmed
out, and thereby their evils were greatly aggravated. The
farming of the excise was abolished in Scotland by the union, having been before that time abandoned in England.
In all these cases the custom gave rise to great abuse and
oppression of the people, and in France most of the farmers-general, as they were called, perished on the scaffold.
FARM PRODUCTS. Include swine, horses, meat
cattle, sheep, manure, cordwood, hay, as well as
vegetables, fruit, eggs, milk, butter, lard, and
other provisions for the mouth. Keeney v. Beasman, 169 Md. 582, 182 A. 566, 569, 103 A.L.R. 1515.
FARM-TO-MARKET ROADS. Within act designating purposes for which road funds were allotted to counties, held to mean county public highways leading directly to, or intersecting, state
highways leading to markets. Hastings v. Pfeiffer, 184 Ark. 952, 43 S.W.2d 1073, 1074.
FARM UTENSILS. A term which, in an insurance policy, is broader than the term garden tools,
and includes any instrumentalities within the
meaning of the word utensils made use of on a
farm, including a stock scale or a new windmill
not erected. Murphy v. Continental Ins. Co., 17&
Iowa 375, 157 N.W. 855, L.R.A.1917B, 934.
FARM WAGON. This term in an exemption statute includes a farm wagon moved by mechanical
as well as by animal power. People v. Corder, 82
Colo. 318, 259 P. 613.
FARMER. A cultivator; a husbandman; an agriculturist. Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d
1017, 1018. One who assumes the collection of the
public revenues, taxes, excise, etc., for a certain
commission or percentage; as a farmer of the.
revenues. The lessee of a farm. It is said that
every lessee for life or years, although it be but
of a small house and land, is called "farmer."'
This word implies no mystery, except it be that of
husbandman. Cunningham; Cowell; 3 Sharsw.
Bla.Comm. 318. There may also be a farmer of
other personal property as well as of revenue and.
of lands. Plowd._ 195; Cunn. Law Diet.
The word "farmer" also includes: an individual : primarily, bona fide, personally engaged in producing products of the soil, in dairy farming, the production of poultry
or live stock, the production of poultry or live stock products, or the principal part of whose income is derived from
any one or more of the foregoing operations, In re Davis,
D.C.Iowa, 22 F.Supp. 12, 13; employer cutting valuable
timber off land incidental to his occupation of agriculture,
Robinson v. Stockley, 166 Tenn. 380, 61 S.W.2d 677. One
continuously and profitably engaged in farming, though
much of his efforts were devoted to unprofitable seed business, Stoller v. Cleveland Trust Co., C.C.A.Ohio, 133 F.2d'
180, 181; one engaged exclusively in raising tomato plants
to sell to others who -actually grow the tomatoes for market, In re Horner, C.C.A.I11., 104 F.2d 600, 602; one engaged in agricultural pursuits as a livelihood or business,
Skinner v. Dingwell, C.C.A.Iowa, 134 F.2d 391, 393; oneengaged in dairy farming and in production of poultry or
livestock, Leonard v. Bennett, C.C.A.Or., 116 F.2d 128, 131,
132, 134; one engaged in the business of cultivating land'
or employing it for the purpose of husbandry, Kaslovitz v.
Reid, C.C.A.Utah, 128 F.2d 1017, 1018; one living on his
farm from revenue thereof and personally operating it on
large scale as his primary activity, In re Lindsay, D.C.
Tex., 41 F.Supp. 948, 950, 951; one personally engaged in.
farming. Shyvers v. Security-First Nat. Bank of Los Angeles, C.C.A.Cal., 108 F.2d 011, 612, 613, 126 A.L.R. 674;.
In re Davis, D.C.Iowa, 22 F.Supp. 12, 13; one primarily engaged in agricultural pursuits. Leonard v. Bennett, C.C.A.
Or., 116 F.2d 128, 131, 132, 134; one who cultivates a considerable tract of land in some one of the usual recognized
ways of farming, Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d
1017, 1018; Matteson v. Dunlap, 191 Okl. 168, 127 P.2d 140,
141; one who cultivates a farm either as owner or lessee.
Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d 1017, 1018; one
who cultivates a farm, whether the land be his own or another's; one who directs the business of a farm and. works
at farm labor. Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d
1017, 1018; Stoner v. New York Life Ins. Co., Mo.App., 90
S. W.2d 784, 795; one who expends his energies and production efforts in tilling the soil, raising crops and marketing
them, thereby promoting his financial interest and advancement, Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d 1017, 1018;
one who is devoted to the tillage of the soil, Kaslovitz v.
Reid, C.C.A.Utah, 128 F.2d 1017, 1018; one who is primarily,
personally, and bona fide engaged in farming although he
does not spend all of his time therein, work farm without
assistance, or refrain from engaging in secondary activities,
In re Lindsay, D.C.Tex., 41 F.Supp. 948, 950, 951; one who,
735
FARMER
owns and resides on a farm, Kaslovitz v. Reid, C.C.A.Utah,
128 F.2d 1017, 1018; one who resides on a farm with his
family, cultivating such farm, and mainly deriving his
support from it, Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d
1017, 1018; one who resides on and cultivates a farm, mainly deriving his support therefrom, State v. Hines, 94 Or.
607, 186 P. 420, 422.
The term "farmer" in Bankruptcy Act includes an administrator, Harris v. Zion Sa y . Bank & Tyust Co., 317 U.
S. 447, 63 S.Ct. 354, 357, 87 L.Ed. 390; personal representative of a deceased farmer. In re Stoner, C.C.A.Pa., 133 F.
2d 696, 697.
FARMER GENERAL. See Farm Out.
FARMING. Tillage of the soil. In re Brown,
D.C.Mo., 284 F. 899, 900; Hart-Parr Co. v. Barkley,
C.C.A.Okl., 231 F. 913, 914.
Other definitions include:
Act or business of cultivating the land, Hagenburger v.
City of Los Angeles, 51 Cal.App.2d 161, 124 P.2d 345, 347;
business of cultivating land or employing it for the purposes of husbandry, Kaslovitz v. Reid, C.C.A.Utah, 128 F.
2d 1017, 1018; business of tilling the soil, Hagenburger
v. City of Los Angeles, 51 Cal.App.2d 161, 124 P.2d 345,
347; commercial production of any plant, even horticultural or annual which has economic value, Township of Marple
v. Lynam, 151 Pa.Super. 288, 30 A.2d 208, 210; conduct of
a farm, State Industrial Accident Commission v. Eggiman,
172 Or. 19, 139 P.2d 565, 567, 569; cultivation and fertilization of the soil as well as caring for and harvesting the
crops, Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d 1017, 1018;
cultivation of land for production of agricultural crops with
incidental enterprises, Collins v. Mills, 198 Ga. 18, 30 S.E.
2d 866, 870; cultivation of the soil for the production of
crops, Chudnov v. Board of Appeals of Town of Bloomfield,
113 Conn. 49, 154 A. 161, 162; operation of a farm, In re
McMurray, D,C.Iowa, 8 F.Supp. 449, 454; operation of a
nursery from which no sales were made on lots within
zoning district, Hagenburger v. City of Los Angeles, 51
Cal.App.2d 161, 124 P.2d 345, 347, 348; stock raising and
dairying if in connection with and incidental to tillage of
the soil, In re Brown, D.C.Wash., 251 F. 365, 370; to produce crops or animals on a farm. Hagenburger v. City of
Los Angeles, 51 Cal.App.2d 161, 124 P.2d 345, 347.
Cultivation of an indefinite quantity of land, and including gardening or horticulture, fruit growing, raising of
vegetables, trees, shrubs, plants and similar products is
farming within zoning ordinance. Hagenburger v. City of
Los Angeles, 51 Cal.App.2d 161, 124 P.2d 345, 347, 348.
Pasturing sheep is "farming or agriculture". Weddle v.
Parrish, 135 Or. 345, 295 P. 454, 455.
"Farming" implies that the operator is dealing with the
natural products of the soil in a natural manner, Dye v.
McIntyre Floral Co., 176 Tenn. 527, 144 S.W.2d 752, 753.
To be engaged in "farming" within Bankruptcy Act,
debtor need not be actually engaged in manual farm work,
but may operate farm himself, or may operate many farms
through overseers and wage hands. Florida Nat. Bank v.
Evans, D.C.Ga., 28 F.2d 67, 68.
FARMING BUSINESS. A farmer's employee engaged in delivering a farm product to market or
to buyer is employed in the "farming business".
Hayes v. Barras, La.App., 6 So.2d 66, 68; Robichaux v. Realty Operators, 195 La. 70, 196 So. 23,
26.
FARMING OPERATIONS within statute providing for relief to farm debtors, means production
of raw food or other material by natural processes of growth, and includes production of poultry and eggs. In re Knight, D.C.Conn., 9 F.Supp.
502.
Clearing wood land, if a mere incident to farming operations, is itself a "farming operation," Stahl v. Patrick,
206 Minn. 413, 288 N.W. 854, 855.
Persons employed to pack tobacco in warehouses by corporation which grew its own tobacco were engaged in
"farming operations" where there was no market for
tobacco at time it was brought to warehouses. American
Sumatra Tobacco Corporation v. Tone, 127 Conn. 132, 15
A.2d 80, 82.
FARMING PRODUCTS. All things are considered
as "farming products" or "agricultural products"
which have a situs of their production upon the
farm and which are brought into condition for
uses of society by labor of those engaged in agricultural pursuits as contradistinguished from
manufacturing or other industrial pursuits. In re
Rodgers, 134 Neb. 832, 279 N.W. 800, 803.
FARMING PURPOSES. These words are not
li mited in meaning to mere cultivation of soil and
maintenance of improvements thereon for such
purposes, but include raising of live stock, as well
as production of farm crops directly from soil.
State v. Superior Court for Walla Walla County,
168 Wash. 142, 10 P.2d 986, 987.
FARO. An unlawful game of cards, in which
all the other players play against the banker or
dealer, staking their money upon the order in
which the cards will lie and be dealt from the
pack. Webster; Ward v. State, 22 Ala. 19; U. S.
v. Smith, 27 Fed.Cas. 1149; Patterson v. State, 12
Tex.App. 224.
FARO LAY—OUT. A board commonly covered
with green cloth to which the entire spade suit
is affixed in a certain order. State v. Williams,
157 P. 957, 52 Mont. 369.
FARRAGO LIBELLI. Lat. An ill-composed book
containing a collection of miscellaneous subjects
not properly associated nor scientifically arranged.
Wharton.
FARRIER. One who takes upon himself the public employment of shoeing horses. See 1 B1.Comm.
431; 2 Salk. 440; Hanover, Horses 215.
FARTHING. The fourth part of an English
penny.
FARTHING OF _GOLD. An ancient English coin,
containing in value the fourth part of a noble. 9
Hen. V. c. 7.
FARTHING OF LAND. A great quantity of land,
differing much from farding-deal, q. v.
FARVAND. Standing by itself, this word signifies
"passage by sea or water." In charter-parties, it
means voyage or passage by water. 18 C.B. 880.
FARYNDON INN. The ancient designation of
Serjeants' Inn, Chancery Lane, London.
FAS. Lat. Right; justice; the divine law. 3 BL
Comm. 2; Calvin.
In primitive times it was the will of the gods, embodied
in rules regulating not only ceremonials but the conduct of
all men, Taylor, Science of Jurispr. 65.
FASCISM. Is defined as the principles and organization of the patriotic and anti-communist
movement in Italy started during the great war,
culminating in the virtual dictatorship of Signor
736
FATUA
Mussolini and imitated ' by fascist or blackshirt
organizations in other countries. Luotto v. Field,
Sup., 49 N.Y.S.2d 785, 788.
FASCIST. A member of the Fascisti, pertaining
to, sponsored by or embodying the principles of
the Fascisti, which principles are described as nationalist and conservative and embodying principles of syndicalism, whether applied to an Italian party or to a similar party in other countries.
Luotto v. Field, Sup., 49 N.Y.S.2d 785, 788.
A totalitarian; a believer in the corporate state;
one opposed to the exercise of democratic methods or of civil liberties; high handed. A name
of opprobium sometimes given to those who oppose proposed reforms or who are conservative
in their political views.
FASIUS. In old English law. A faggot of wood.
FAST BILL OF EXCEPTIONS. One which may
be taken in Georgia in injunction suits and similar
cases, at such time and in such manner as to bring
the case up for review with great expedition. It
must be certified within twenty days from the
rendering of the decision. Sewell v. Edmonston,
66 Ga. 353.
FAST-DAY. A day of fasting and penitence, or
of mortification by religious abstinence. As to
counting it in legal proceedings, see 1 Chit. Archb.
Pr., 12th Ed., 160, et seq.
FAST ESTATE. See Estate.
FASTERMANS, FASTERMANNES, or FASTINGMEN. Men in repute and substance; pledges,
sureties, or bondsmen, who, according to the Saxon polity, were fast bound to answer for each
other's peaceable behavior. Spelman; Enc. Lond.
FASTL In Roman law. Lawful. Dies fasti, lawful days; days on which justice could lawfully be
administered by the prEetor. See Dies Fasti.
FAT SPOT. A "fat spot" is a spot where there is
an excessive amount of bituminous material on
the surface of the pavement. Karl v. State, 279
N.Y. 555, 18 N.E.2d 852, 853.
FATAL ERRORS. Are such only as may reasonably be held to have worked injury to complaining party. Willard v. Stauffer, 91 Ind.App. 119,
170 N.E. 332, 334.
FATAL INJURY. A term embracing injuries resulting in death, which, as used in accident and
disability insurance policies is distinguished from
"disability," which embraces injuries preventing
the insured from performing the work in which
he is usually employed, but not resulting in death.
Provident Life & Accident Ins. Co. v. Johnson,
Tex.Civ.App., 235 S.W. 650, 652.
402, 405; People v. Mizer, 37 Cal.App.2d 148, 99
P.2d 333, 335, 336; it must be misleading or serve
to mislead the adverse party, Lorenz v. Santa
Monica City High School Dist., 51 Cal.App.2d 393,
124 P.2d 846, 851; it must be substantial and material, Miller v. Arliskas, 324 Ill.App. 588, 58 N.E.
2d 743.
Attempt to introduce evidence of special damages from
breach of tort or breach of contract, under general averment of damage is a "fatal variance". W. C. Hardesty Co.
v. Schaefer, Mo.App., 139 S.W.2d 1031, 1035.
The general rule with respect to proof of time when an
offense is committed is that there is no "fatal variance"
from the allegation that it was committed on a particular
date, to show that it was actually committed on or about
or near that date unless the variance results in misleading
defendant so as to prevent him from making his defense to
the charge or to deprive him of the benefit of a plea of
former jeopardy in event of another trial for the same offense. People v. Tracy, 50 Cal.App.2d 460, 123 P.2d 138,
140, 141.
FATETUR FACINUS QUI JUDICIUM FUGIT.
He who flees judgment confesses his guilt. 3 Inst.
14; 5 Co. 109b. But see Best, Pres. § 248.
FATHER. A male parent. In re Clark's Estate,
228 Iowa 75, 290 N.W. 13, 32. He by whom a
child is begotten. Natural father; procreator of
a child. In re Dexheimer's Estate, 197 Wis. 145,
221 N.W. 737. For "Putative Father," see that
title.
As used in law, this term may (according to the context
and the nature of the instrument) include a putative as
well as a legal father, also a stepfather, an adoptive father,
or a grandfather, but is not as wide as the word "parent,"
and cannot be so construed as to include a female. Thornburg v. American Strawboard Co., 141 Ind. 443, 40 N.E.
1062, 50 Am.St.Rep. 334; McGaughey v. Grand Lodge, A.
0. U. W. of State of Minnesota, 148 Minn. 136, 180 N.W.
1001; Fienup v. Stamer, Mo.App., 28 S.W.2d 437, 439. The
term may, however, be so limited as to mean only the father of a legitimate child. People v. Wolf, 216 App.Div.
771, 215 N.Y.S. 95, 96; Howard v. U. S., D.C.Ky., 2 F.2d
170, 173.
As used in law, this term may mean natural father and
not adoptive parent. McKinney v. Minkler, Tex.Civ.App.,
102 S.W.2d 273, 279; Jackson's Adm'x v. Alexiou, 223 Ky.
95, 3 S.W.2d 177, 178, 56 A.L.R. 1345.
As used in statute providing that father may inherit from
his illegitimate children, includes heirs of the father. State
v. Chavez, 42 N.M. 569, 82 P.2d 900, 906.
As used in statutes relating to duty of a father and
other relatives to support adult children likely to become
public charges, refers to foster father after adoption, Betz
v. Horr, 276 N.Y. 83, 11 N.E.2d 548, 550, 114 A.L.R. 491.
The appellation "Father" indicates that the one to whom
it is applied is a priest of the Catholic Church, Sweeney v.
Newspaper Printing Corporation, 177 Tenn. 196, 147 S.W.2d
406, 407.
The word may be used in will as equivalent of "parent,"
which is defined as meaning father and mother. In re
Frist's Estate, 18 Del.Ch. 409, 161 A. 918.
FATHER-IN-LAW. The father of one's wife or
husband.
FATAL VARIANCE. A variance tending to mislead defendant in making defense or one preventing plea of former jeopardy. Burke v. U. S., C.C.
A.Cal., 58 F.2d 739, 741.
FATHOM. A nautical measure of six feet in
length. Occasionally used as a superficial measure
of land and in mining, and in that case it means
a square fathom or thirty-six square feet. Nahaolelua v. Kaaahu, 9 Hawaii, 601.
A variance in order to be "fatal" must be material. Whittier v. Leifert, 72 N.D. 528, 9 N.W.2d
FATUA MULIER. A whore. Du Fresne.
Black's Law Dictionary Revised 4th Ed.-47
737
FATUITAS
FATUITAS. In old English law. Fatuity; idiocy.
Reg. Orig. 266.
FATUM. Lat. Fate; a superhuman power; an
event or cause of loss, beyond human foresight
or means of prevention.
FATUOUS PERSON. In Scotch law. One entirely destitute of reason; is qui omnino desipit.
Ersk. Inst. 1, 7, 48. An idiot. Jacob. One who is
incapable of managing his affairs, by reason of a
total defect of reason. He is described as having
uniform stupidity and inattention of manner and
childishness of speech. Bell's Law Dict.
FATUUM JUDICIUM. A foolish judgment or
verdict. As applied to the latter it is one rather
false by reason of folly than criminally so, or as
amounting to perjury. Bract. fol. 289.
FATUUS. An idiot or fool. Bract. fol. 420b.
Foolish; silly; absurd; indiscreet; or ill considered. See Fatuum judicium.
FATUUS, APUD JURISCONSULTOS NOSTROS,
ACCIPITUR PRO NON COMPOS MENTIS; ET
FATUUS DICITUR, QUI OMNINO DESIPIT. 4
Coke, 128. Fatuous, among our jurisconsults, is
understood for a man not of right mind; and he
is called "fatuus" who is altogether foolish.
relation. Amberson v. Amberson, 349 Ill. 214, 181 N.E
825, 826.
As used in Unemployment Qompensation Act protecting
persons unemployed through no fault of their own, means
failure or volition, White v. Review Board of Indiana
Employment Security Division, 114 Ind.App. 383, 52 N.E.2d
500, 502.
The word "fault," the primary lexical meaning of which
is defect or failing, in the language of the law and in the
interpretation of statutes signifies a failure of duty, and Is
the equivalent of negligence. Milliken v. Fenderson, 110
Me. 306, 86 A. 174, 175; Marston v. Pickwick Stages, 78
Cal.App. 526, 248 P. 930, 933. But see Liberty Highway Co.
v. Callahan, 24 Ohio App. 374, 157 N.E. 708, 714.
Civil Law. Negligence; want of care. An improper act or omission, injurious to another, and
transpiring through negligence, rashness, or ignorance.
There are in law three degrees of faults,—the gross, the
slight, and the very slight fault. The gross fault is that
which proceeds from inexcusable negligence or ignorance;
it is considered as nearly equal to fraud. The slight fault
is that want of care which a prudent man usually takes of
his business. The very slight fault is that which is excusable, and for which no responsibility is incurred. Civil
Code La. art. 3556, par. 13.
Commercial Law. Defect; imperfection; blemish.
See With All Faults.
Mining Law. A dislocation of strata; particularly, a severance of the continuity of a vein or lode
by.the dislocation of a portion of it.
FATUUS PRZESUMITUR QUI IN PROPRIO
NOMINE ERRAT. A man is presumed to be
simple who makes a mistake in his own name.
Code, 6, 24, 14; Van Alst v. Hunter, 5 Johns. Ch.,
N.Y. 148, 161.
FAUTOR. Old English law. A favorer or supporter of others; an abettor. Cowell; Jacob. A
partisan. One who encouraged resistance to the
execution of process.
FAUBOURG. In French law, and in Louisiana.
A district or part of a town adjoining the prin.
cipal city; a suburb. See City Council of Lafayette v. Holland, 18 La. 286.
FAUX.
FAUCES TERR1E. (Jaws of the land.) Narrow
headlands and promontories, inclosing a portion
or arm of the sea within them. 1 Kent, Comm.
367, and note; Hale, De Jure Mar. 10; The Harriet, 1 Story, 251, 259, Fed. Cas. No. 6,099; 16 Yale
L.J. 471.
FAULT.
American Law. Negligence; an error or defect
of judgment or of conduct; any deviation from
prudence, duty, or rectitude; any shortcoming, or
neglect of care or performance resulting from
inattention, incapacity, or perversity; a wrong
tendency, course, or act; bad faith or mismanagement; neglect of duty. School Dist. v. Boston, H.
& E. R. Co., 102 Mass. 553, 3 Am.Rep. 502; Dorr
v. Harkness, 49 N.J.Law, 571, 10 A. 400, 60 Am.
Rep. 656; Cochrane v. Forbes, 257 Mass. 135, 153
N.E. 566, 570; Continental Oil Co. v. Horsey, 175
Md. 609, 3 A.2d 476, 478; Continental Ins. Co. v.
Sabine Towing Co., C.C.A.Tex., 117 F.2d 694, 697.
As respects wife's fault as ground for divorce, it means
more than a deviation from the rules of propriety and also
means a blemish or impairment of excellence. Barnett v.
Barnett, 292 Ky. 672, 167 S.W.2d 845, 847.
As used in statute respecting suits for separate maintenance, means voluntary separation, or failure of duty or
misconduct materially contributing to disruption of marital
Spanish Law. Accomplice; the person who aids
or assists another in the commission of a crime.
Civil Law. The fraudulent alteration of the truth.
The same with the Latin falsum or crimen falsi.
French Law. A falsification or fraudulent alteration or suppression of a thing by words, by writings, or by acts without either. Biret.
"Faux may be understood in three ways. In its most
extended sense it is the alteration of truth, with or without
intention; it is nearly synonymous with 'lying.' In a less
extended sense, it is the alteration of truth, accompanied
with fraud, mutatio veritatis cum dolo facta. And lastly,
in a narrow*, or rather the legal, sense of the word, when
it is a question to know if the faux be a crime, it is the
fraudulent alteration of the truth in those cases ascertained and punished by the law." Touillier, t. 9, n. 188.
Old English Law. False; counterfeit. Faux action, a false action. Litt. § 688. Faux money,
counterfeit money. St. Westm. 1, c. 15. Faux
peys, false weights. Britt. c. 20. Faux serement,
a false oath. St. Westm. 1, c. 38.
FAVOR, n. An act of kindness or generosity, as
distinguished from one that is inspired by regard
for justice, duty, or right. Ross v. Davis, 138 Misc.
863, 248 N.Y.S. 441, 443. Bias; partiality; lenity;
prejudice. See Challenge.
FAVOR, v. To regard with favor; to aid or to
have the disposition to aid; to show partiality or
unfair bias towards;—practically synonymous
with "support." United States v. Schulze, D.C.
738
FECIAL
FEAR. Apprehension of harm; dread; consciousness of approaching danger.
Cal., 253 F. 377, 379. The word implies a mental
attitude or intent. Schulze v. United States,
C.C.A.CaI., 259 F. 189, 190.
Apprehension of harm or punishment, as exhibited by outward and visible marks of emotion.
An evidence of guilt in certain cases. See Burrill,
Circ. Ev. 476.
FAVORABILIA IN LEGE SUNT FISCUS, DOS,
VITA, LIBERTAS. Jenk. Cent. 94. Things favorably considered in law are the treasury, dower,
life, liberty.
The "fear" which renders evidence of female's utmost
resistance unnecessary to support conviction of "rape" is a
fear of death or great bodily harm, or a fear that so overpowers female that she dares not resist, or a fear and terror so extreme as to preclude resistance, or a fear which
renders female's mind well nigh incapable of continuing
her resistance. State v. Hoffman, 228 Wis. 235, 280 N.W.
357, 359, 361.
Statutes defining crime of extortion and providing punishment therefor must be read together, and "fear," within
statute defining term as obtaining of property from another
with his consent induced by "fear," must be induced by
threats, and hence threat is necessary ingredient of crime.
State v. Anderson, 66 N.D. 522, 267 N.W. 121, 124.
FAVORABILIORES REI, POTIUS QUAM ACTORES, HABENTUR. The condition of the defendant must be favored, rather than that of the
plaintiff. In other words, melior est condiao defendentis. Dig. 50, 17, 125; Broom, Max. 715. See
Hunt v. Rousmanier's Adm'r, 8 Wheat. U.S. 195,
196, 5 L.Ed. 589.
FAVORABILIORES SUNT EXECUTIONES
ALIIS PROCESSIBUS QUIBUSCUNQUE. Co.
Litt. 289. Executions are preferred to all other
processes whatever.
FEASANCE. A doing; the doing of an act; a
performing or performance. See Malfeasance;
Misfeasance; Nonfeasance.
FAVORED BENEFICIARY. Within rule that confidential relations and activity by favored beneficiary in the execution of the will raises a prima
facie presumption of undue influence, is one who
in the circumstances has been favored over others
having equal claims to testator's bounty. Mindler v. Crocker, 245 Ala. 578, 18 So.2d 278, 281.
A making; the making of an indenture, release,
or obligation. Litt. § 371; Dyer, (Fr. Ed.) 56b.
The making of a statute. Keilw. lb.
FEASANT. Doing, or making, as, in the term
"damage feasant," (doing damage or injury,)
spoken of cattle straying upon another's land.
FAVORES AMPLIANDI SUNT; ODIA RESTRINGENDA. Jenk. Cent. 186. Favors are to be enlarged; things hateful restrained.
FEAL. Faithful; truthful; true. Tenants by
knight service swore to their lords to be teal and
Zeal; e., faithful and loyal. Feal homager,
faithful subject.
FEAL AND DIVOT. A right in Scotland, similar
to the right of turbary in England, for fuel, etc.
Wharton; Ersk. ii. tit. ix. s. 17.
FEALTY. In feudal law. Fidelity; allegiance
to the feudal lord of the manor; the feudal obligation resting upon the tenant or vassal by
which he was bound to be faithful and true to his
lord, and render him obedience and service. See
De Peyster v. Michael, 6 N.Y. 497, 57 Am.Dec.
470; Littleton §§ 117, 131; Wright, Ten. 35;
Termes de la Ley; 1 Washb. R. P. 19; 1 Poll. &
Maitl. 277-287; Stubbs, Const. Hist. § 462 n; Co.
Lit. 67b; 3 Kent 510.
This fealty was of two sorts: that which is general, and
is due from every subject to his prince; the other special,
and required of such only as in respect of their fee are
tied by this oath to their landlords; 1 Bla.Comm. 367;
Cowell.
Fealty signifies fidelity, the phrase "feal and leal" meaning simply "faithful and loyal." Tenants by knights'
service and also tenants in socage were required to take an
oath of fealty to the king or others, their immediate lords;
and fealty was one of the conditions of their tenure, the
breach of which operated a forfeiture of their estates.
Brown.
Although foreign jurists considered fealty and homage as
convertible terms, because in some continental countries
they are blended so as to form one engagement, yet they
are not to be confounded in our country, for they do not
i mply the same thing, homage being the acknowledgment
of tenure, and fealty, the vassal oath of fidelity, being the
essential feudal bond, and the animating principle of a
feud, without which it could not subsist. Wharton.
FEASIBLE. Capable of being done, executed, or
affected. Lowe v. Chicago Lumber Co. of Omaha,
135 Neb. 735, 283 N.W. 841, 844.
It also means: capable of being successfully done or accomplished. Gilmartin v. D. & N. Transp. Co., 123 Conn.
127, 193 A. 726, 729, 113 A.L.R. 1322; fit to be dealt with
successfully, Hinchman v. City Water Co., 179 Tenn. 545,
167 S.W.2d 986, 990; practically possible or capable of being managed, utilized, or dealt with successfully, In re
Washakie Needles Irr. Dist., 52 Wyo. 518, 76 P.2d 617, 621.
A "feasible method of liquidation", as used in section of
Bankruptcy Act setting out conditions precedent to confirmation of agricultural extension proposal, means that
court must be convinced before confirming proposal that
proposal to creditors is one that probably can be carried
out by debtor and result in liquidation to secured creditors
and rehabilitation for farmer, and that it is to best interests of all creditors. Heldstab v. Equitable Life Assur.
Soc. of United States, C.C.A.Kan., 91 F.2d 655, 659.
The word "feasible", within meaning of rule that a plan
of corporate reorganization must be feasible, does not connote absolute insurance of success but only reasonable assurance of success. In re Waern Bldg. Corporation, C.C.A.
Ill., 145 F.2d 584, 588.
FEASOR. Doer; maker. Feasors del estatute,
makers of the statute. , Dyer, 3b. Also used in the
compound term, "tort-feasor," one who commits or
is guilty of a tort.
FEASTS. Certain established festivals or holidays in the ecclesiastical calendar. These days
were anciently used as the dates of legal instruments, and in England the quarter-days, for paying rent, are four feast-days. The terms of the
courts, in England, before 1875, were fixed to begin on certain days determined with reference to
the occurrence of four of the chief feasts.
FECIAL LAW. The nearest approach to a system
of international law known to the ancient world.
It was a branch of Roman jurisprudence, con-
739
FECIALES
cerned with embassies, declarations of war, and
treaties of peace. It received this name from the
feciales, (q. v.,) who were charged with its administration.
FECIALES. Among the ancient Romans, that
order of priests who discharged the duties of ambassadors. Subsequently their duties appear to
have related more particularly to the declaring war
and peace. Calvin.; 1 Kent, Comm. 6.
FEDERAL.
American Law. Belonging to the general government or union of the states. Founded on or organized under the constitution or laws of the United States.
The United States has been generally styled, in American
political and judicial writings, a "federal government."
The term has not been imposed by any specific constitutional authority, but only expresses the general sense and
opinion upon the nature of the form of government. In
recent years, there is observable a disposition to employ
the term "national" in speaking of the government of the
Union. Neither word settles anything as to the nature or
powers of the government. "Federal" is somewhat more
appropriate if the government is considered a union of
the states; "national" is preferable if the view is adopted
that the state governments and the Union are two distinct
systems, each established by the people directly, one for
local and the other for national purposes. See United
States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Abbott;
Mills, Representative Government 301; Freeman, Fed.
Gov't.
Constitutional Law. A term commonly used to
express a league or compact between two or more
states, to become united under one central government. Montana Auto Finance Corporation v. British & Federal Underwriters of Norwich Union
Fire Ins. Soc., 72 Mont. 69, 232 P. 198, 199, 36 A.L.
R. 1495.
FEDERAL CENSUS. A census of each state or
territory or of a certain state or of any subdivision or portion of any state, provided it is taken
by and under the direction and supervision of the
Census Bureau of the United States, and approved
and certified by it as the census of that state or
subdivision. In re Cleveland's Claim, 72 Okl. 279,
180 P. 852, 885.
FEDERAL COMMON LAW is a body of decisional law developed by the federal courts untrammeled by state court decisions. O'Brien v. Western Union Telegraph Co., C.C.A.Mass., 113 F.2d
539, 541.
FEDERAL COURTS. The courts of the United
States. See Courts of the United States.
FEDERAL GOVERNMENT. The system of government administered in a state formed by the
union or confederation of several independent or
quasi, independent states; also the composite state
so formed.
In strict usage, there is a distinction between a confederation and a federal government. The former term denotes
a league or permanent alliance between several states, each
of which is fully sovereign and independent, and each of
which retains its full dignity, organization, and sovereignty, though yielding to the central authority a controlling
power for a few limited purposes, such as external and
diplomatic relations. In this case, the component states
are the units, with respect to the confederation, and the
central government acts upon them, not upon the individual
citizens. In a federal government, on the other hand, the
allied states form a union,—not, indeed, to such an extent
as to destroy their separate organization or deprive them
of quasi sovereignty with respect to the administration of
their purely local concerns, but so that the central power is
erected into a true state or nation, possessing sovereignty
both external and internal,—while the administration of national affairs is directed, and its effects felt, not by the separate states deliberating as units, but by the people of all,
in their collective capacity, as citizens of the nation. The
distinction is expressed, by the German writers, by the use
of the two words "Staatenbund" and "Bundesstaat;" the
former denoting a league or confederation of states, and
the latter a federal government, or state formed by means
of a league or confederation.
FEDERAL INSTRUMENTALITY. A means or
agency used by the federal government. Capitol
Building & Loan Ass'n v. Kansas Commission of
Labor and Industry, 148 Kan. 446, 83 P.2d 106, 107,
118 A.L.R. 1212. A government agency immune
from state control. Waterbury Sa y . Bank v. Danaher, 128 Conn. 78, 20 A.2d 455, 458.
FEDERAL PROHIBITION OFFICER. An officer
of the federal government charged with the enforcement of the national prohibition statute. De
Marco v. U. S., C.C.A.Va., 296 F. 667, 668.
FEDERAL QUESTION. Cases arising under
Constitution of United States, Acts of Congress,
or treaties, and involving their interpretation and
application, and of which jurisdiction is given to
federal courts, are commonly described as involving a "federal question." McAllister v. St.
Louis Merchants' Bridge Terminal Ry. Co., 324
Mo. 1005, 25 S.W.2d 791, 792.
FEDERAL TRADE COMMISSION. An administrative body created by statute, with only the
duties and powers granted expressly or by fair
implication. Chamber of Commerce of Minneapolis v. Federal Trade Commission, C.C.A.8, 13
F.2d 673, 683. See 15 U.S.C.A. §§ 41-51.
FEDERALIST, THE. A series of 85 essays by
Alexander Hamilton, James Ma disc :, and John
Jay, expounding and advocating the adoption of
the Constitution of the United States. All but six
of the essays were first published in the "Independent Journal" of New York City from October,
1787, to April, 1788. Webster, New Int. Dict.
"The opinion of the Federalist has always [been]
considered as of great authority." Cohens v. Virginia, 6 Wheat. 264, 418, 5 L.Ed. 257.
FEDERATED STATE. An independent central
organism, having its own machinery absorbing,
in view of international law, all the individual
states associated together. Molina v. Comision
Reguladora Del Mercado De Henequen, 91 N.J.L.
382, 103 A. 397, 400.
FEDERATION. Ordinarily, an unincorporated
association of persons for a common purpose.
Hughes v. State, 109 Ark. 403, 160 S.W. 209.
FEE. A charge fixed by law for services of public officers or for use of a privilege under control
of government. Fort Smith Gas Co. v. Wiseman,
189 Ark. 675, 74 S.W.2d 789, 790. A recompense
for an official or professional service or a charge
740
FEE-FARM
or emolument or compensation for a particular
act or service. Craig v. Shelton, 201 Ky. 790, 258
S.W. 694. A fixed charge or perquisite charged
as recompense for labor and trouble, a reward,
compensation, or wage given to a person for performance of professional services or something
done or to be done. People v. Goulding, 275 Mich.
353, 266 N.W. 378, 379.
A contingent fee is a fee stipulated to be paid to an attorney for his services in conducting a suit or other forensic proceeding only in case he wins it; it may be a percentage of the amount recovered. Adopted in Gray v.
Stern, 85 Wash. 645, 149 P. 26, 28.
For docket fee, see Docket.
Estates
Ordinarily, word "fee" or "fee simple" is applied to an estate in land, but term is applicable
to any kind of hereditament, corporeal or incorporeal, and is all the property in thing referred
to or largest estate therein which person may
have. In re Forsstrom, 44 Ariz. 472, 38 P.2d 878,
888.
A freehold estate in lands, held of a superior lord, as a
reward for services, and on condition of rendering some
service in return for it. The true meaning of the word
"fee" is the same as that of "feud" or "fief," and in its
original sense it is taken in contradistinction to "allodiurn," which latter is defined as a man's own land, which
he possesses merely in his own right, without owing any
rent or service to any superior. 2 Bl.Comm. 105. See Wendell v. Crandall, 1 N.Y. 491.
In modern English tenures, "fee" signifies an estate of inheritance, being the highest and most extensive interest
which a man can have in a feud; and when the term is
used simply, without any adjunct, or in the form "feesimple," it imports an absolute inheritance clear of any
condition, limitation, or restriction to particular heirs, but
descendible to the heirs general, male or female, lineal or
collateral. 2 Bl.Comm. 106; Cowell; Termes de la Ley;
1 Washb.R.P. 51; Co.Litt. 1 b; 1 Prest. Est. 420; 3 Kent
514.
Base fee. A determinable or qualified fee; an estate having the nature of a fee, but not a fee simple absolute. In
re Douglass' Estate, 94 Neb. 280, ,143 N. W. 299, 302.
Conditional fee. An estate restrained to some particular
heirs, exclusive of others, Blume v. Pearcy, 204 S.C. 409, 29
S.E.2d 673, 674, as to the heirs of a man's body, by which
only his lineal descendants were admitted, in exclusion of
collateral; or to the heirs male of his body, in exclusion of
heirs female, whether lineal or collateral. It was called a
"conditional fee," by reason of the condition expressed or
i mplied in the donation of it that, if the donee died without
such particular heirs, the land should revert to the donor.
2 Bl.Comm. 110. The term includes a fee that is either
to commence or determine on some condition, 10 Co. 950;
Prest.Est. 476; Fearne, Cont.Rem. 9; and is sometimes
used interchangeably with "base fee," that is, one to determine or be defeated on the happening of some contingent event or act. Citizens' Electric Co. v. Susquehanna Boom Co., 270 Pa. 517, 113 A. 559, 561; Glass v.
Johnson, 297 111. 149, 130 N.E. 473, 474.
Determinable fee. Also called a "base" or "qualified"
fee. Stubbs v. Abel, 114 Or. 610, 233 P. 852, 859. One
which has a qualification subjoined to it, and which must
be determined whenever the qualification annexed to it is
at an end. Littleton § 254; Co.Litt. 27a, 220; 1 Prest.Est.
449; 2 Bla.Comm. 109; Cruise, Dig. tit. 1, § 82. An estate
in fee which is liable to be determined by some act or
event expressed on its limitation to circumscribe its continuaAce, or inferred by law as bounding its extent. 1
Washb. Real Prop. 62; McLane v. Bovee, 35 Wis. 36. An
estate which may last forever is a "fee," but if it may end
on the happening of a merely possible event, it is a
"determinable," or "qualified fee." Reichard v. Chicago,
B. & Q. R. Co., 231 Iowa 563, 1 N.W.2d 721, 727.
Determinable fee or fee simple. Estate created with special limitation which delimits duration of estate in land.
P C K Properties, Inc., v. City of Cuyahoga Falls, 176
N.E.2d 441, 444, 112 Ohio App. 492.
Fee damages. See Damages.
Fee expectant. A name sometimes applied to an estate
created where lands are given to a man and his wife and
the heirs of their bodies. See also Frank-Marriage.
Fee simple defeasible. Title created in trustees where legal title in fee simple to active trust estate is by will
placed in trustees who are required to distribute property
in fee simple upon happening of event. Also called a
"determinable fee", "base fee", or "qualified fee". Kanawha Val. Bank v. Hornbeck, W.Va., 151 S.E.2d 694, 700.
Great fee. In feudal law, the designation of a fee held
directly from the crown.
Knight's fee. See Knight's Fee,
Limited fee. An estate of inheritance in lands, which is
clogged or confined with some sort of condition or qualification. Such estates are base or qualified fees, conditional
fees, and fees-tail. The term is opposed to "fee-simple."
2 Bl.Comm. 109; Lott v. Wyckoff, 1 Barb., N.Y., 575; Paterson v. Ellis, 11 Wend., N.Y., 259.
Plowman's fee. In old English law, was a species of tenure peculiar to peasants or small farmers, somewhat like
gavelkind, by which the lands descended in equal shares to
all the sons of the tenant.
Qualified fee. In English law. A fee having a qualification subjoined thereto, and which must be determined
whenever the qualification annexed to it is at an end; otherwise termed a "base fee." 2 Bl.Comm. 109; 1 Steph.
Comm. 225. An interest which may continue forever, but
is liable to be determined, without the aid of a conveyance,
by some act or event, circumscribing its continuance or
extent. 4 Kent, Comm. 9; Moody v. Walker, 3 Ark. 190;
U. S. v. Reese, 27 Fed.Cas. 744. An interest given to a man
and certain of his heirs at the time of its limitation. • See
Kelso v. Stigar, 75 Md. 397, 24 A. 18.
Quasi fee. An estate gained by wrong. Wharton.
Also, the land which is held in fee.
American Law
An estate of inheritance without condition, belonging to the owner, and alienable by him or
transmissible to his heirs absolutely and simply,
and is an absolute estate in perpetuity and the
largest possible estate a man can have, being, in
fact, allodial in its nature. Stanton v. Sullivan,
63 R.I. 216, 7 A.2d 696, 698, 699.
Every estate which is not for life, for years or at will.
Chance v. Weston, 96 Or. 390, 190 P. 155, 157.
Terms "fee," "fee simple," and "fee simple absolute,"
are equivalent. Boon v. Boon, 348 Ill. 120, 180 N.E. 792,
794.
FEE AND LIFE-RENT. In Scotch law, two estates in land—the first of which is the full right
of proprietorship, the second the limited right
of usufruct during life—may be held together, or
may co-exist in different persons at the same
time. See Bell, Prin. § 1712; Ersk. Prin. 420;
Fiar.
FEE-FARM. A species of tenure, where land is
held of another in perpetuity at a yearly rent,
without fealty, homage, or other services than
such as are specially comprised in the feoffment.
It corresponds very nearly to the "emphyteusis"
of the Roman law. Cowell. Fealty, however,
was incident to a holding in fee-farm, according
to some authors. Spelman; Termes de la Ley.
Fee-farm is where an estate in fee is granted subject to a
rent in fee of at least one-fourth of the value of the lands
at the time of its reservation. Such rent appears to be
called "fee-farm" because a grant of lands reserving so
741
FEE-FARM
considerable a rent is indeed only letting lands to farm in
fee-simple, instead of the usual method of life or years. 2
Bl. Comm. 43; 1 Steph.Comm. 676.
Fee-farms are lands held in fee to render for them annually the true value, or more or less; so called because
a farm rent is reserved upon a grant in fee. Such estates
are estates of inheritance. They are classed among estates
in fee-simple. No reversionary interest remains in the
lessor, and they are therefore subject to the operation of
the legal principles which forbid restraints upon alienation
in all cases where no feudal relation exists between grantor
and grantee. De Peyster v. Michael, 6 N.Y. 497, 57 Am.Dec.
470.
FEE-FARM RENT. The rent reserved on granting a fee-farm. It might be one-fourth the value
of the land, according to Cowell; one-third, according to other authors. Spelman; Termes de la
Ley; 2 Bl. Comm. 43. Fee-farm rent is a rentcharge issuing out of an estate in fee; a perpetual
rent reserved on a conveyance in fee-simple. De
Peyster v. Michael, 6 N.Y. 467, 495, 57 Am.Dec.
470.
FEE SIMPLE.
Absolute
A fee simple absolute is an estate limited absolutely to a man and his heirs and assigns forever without limitation or condition. Rathbun v.
State, 284 Mich. 521, 280 N.W. 35, 40.
Conditional
At the common law, an estate in fee simple conditional was a fee limited or restrained to some
particular heirs, exclusive of others. But the statute "De Donis" converted all such estates into
estates tail. 2 Bl. Comm. 110.
American Law
An absolute or fee-simple estate is one in which
the owner is entitled to the entire property, with
unconditional power of disposition during his life,
and descending to his heirs and legal representatives upon his death intestate. Code Ga. 1882, §
2246 (Civ.Code 1910, § 3657). Friedman v. Steiner,
107 Ill. 131; Woodberry v. Matherson, 19 Fla.
785; Lyle v. Richards, 9 Serg. & R., Pa. 374. Unlimited as to duration, disposition, and descendibility. Slayden v. Hardin, 257 Ky. 685, 79 S.W.
2d 11, 12.
The estate which a man has where lands are
given to him and to his heirs absolutely without
any end or limit put to his estate. 2 Bl. Comm.
106; Plowd. 557; 1 Prest. Est. 425; Litt. § 1. The
word "fee," used alone, is a sufficient designation
of this species of estate, and hence "simple" is
not a necessary part of the title, but it is added
as a means of clearly distinguishing this estate
from a fee-tail or from any variety of conditional
estates.
Fee-simple signifies a pure fee; an absolute estate of
inheritance clear of any condition or restriction to particular heirs, being descendible to the heirs general, whether
male or female, lineal or collateral. It is the largest estate
and most extensive interest that can be enjoyed in land.
Haynes v. Bourn, 42 Vt. 686; Powers v. Trustees of Caledonia County Grammar School, 93 Vt. 220, 106 A. 836, 841;
Smith v. Smith's Ex'r, 122 Va. 341, 94 S.E. 777, 779. When
a person owns in common with another, he does not own
the entire fee,—a fee-simple; it is a fee divided or shared
with another. Brackett v. Ridlon, 54 Me. 426.
Terms "fee," "fee simple," and "fee simple absolute,"
are equivalent. Boon v. Boon, 348 Ill. 120, 180 N.E. 792,
794.
English Law
A freehold estate of inheritance, absolute and
unqualified. It stands at the head of estates as
the highest in dignity and the most ample in extent; since every other kind of estate is derivable
thereout, and mergeable therein. It may be enjoyed not only in land, but also in advowsons,
commons, estovers, and other hereditaments, as
well as in personalty, as an annuity or dignity,
and also in an upper chamber, though the lower
buildings and soil belong to another. Wharton;
Co.Litt. 1 b; 2 Bla. Comm. 106.
FEE TAIL. A freehold estate in which there is
a fixed line of inheritable succession limited to the
issue of the body of the grantee or devisee, and
in which the regular and general succession of
heirs at law is cut off. Coleman v. Shoemaker,
147 Kan. 689, 78 P.2d 905, 907.
An estate tail; an estate of inheritance given to a man
and the heirs of his body, or limited to certain classes of
particular heirs. It corresponds to the feudum talliatum
of the feudal law, and the idea is believed to have been
borrowed from the Roman law, where, by way of fldei
commissa, lands might be entailed upon children and freedmen and their descendants, with restrictions as to alienation. 1 Washb.Real Prop. *66. For the varieties azad
special characteristics of this kind of estate, see Tail,
Estate in.
FEED. To lend additional support; to strengthen
ex post facto. "The interest when it accrues feeds
the estoppel." Christmas v. Oliver, 5 Mood. &
R. 202. Similarly, a subsequent title acquired
by the mortgagor is said "to feed the mortgage."
The word is used in its ordinary sense with reference to
cattle and hogs which are said to be made marketable by
feeding. Brockway v. Rowley, 66 Ill. 102.
It is also used in the phrase feeding of a cow by and on
the land to signify from the land while there is food on it,
and with hay by the owner of the land at other times; 2
Q. B. Div. 49.
FEGANGI. In old English law, a thief caught
while escaping with the stolen goods in his possession. Spelman.
FEHMGERICHTE. The name given to certain
secret tribunals which flourished in Germany
from the end of the twelfth century to the middle
of the sixteenth, usurping many of the functions
of the governments which were too weak to maintain law and order, and inspiring dread in all
who came within their jurisdiction. Enc. Brit.
Such a court existed in Westphalia (though with
greatly diminished powers) until finally suppressed by Jerome Bonaparte in 1811. See Bork,
Geschichte der Westphaelischen Vehmgerichte;
Paul Wigand, Das Fehmgericht Westphaleus.
FEIGNED. Fictitious; pretended; supposititious; simulated.
FEIGNED ACCOMPLICE. One who pretends to
consult and act with others in the planning_Dr
commission of a crime, but only for the purpose
of di$covering their plans and confederates and
742
FELONIOUS
securing evidence against them. State v. Ver-ganadis, 50 Nev. 1, 248 P. 900, 903; People v. Bolanger, 71 Cal. 17, 11 P. 800.
FEIGNED ACTION. In- practice, an action
brought on a pretended right, when the plaintiff
has no true cause of action, for some illegal purpose. In a feigned action the words of the writ
are true. It differs from false action, in which
case the words of the writ are false. Co. Litt.
361.
FEIGNED DISEASES. Simulated maladies. Diseases are generally feigned from one of three
causes,—fear, shame, or the hope of gain.
FEIGNED ISSUE. An issue framed to try questions of fact. Miles v. Layton, 8 W.W.Harr. 411,
193 A. 567, 574, 112 A.L.R. 786.
An issue made up by the direction of a court of equity,
(or by consent of parties,) and sent to a common-law court,
for the purpose of obtaining the verdict of a jury on some
disputed matter of fact which the court has not jurisdiction, or is unwilling, to decide. It rests upon a supposititious wager between the parties. See 3 Bl.Comm. 452.
Under the reformed codes of some states issues may be
framed in certain exceptional cases. In England, the practice has been disused since the passing of the stat. 8 and 9
Vict. c. 109, s. 19, permitting any court to refer any question of fact to a jury in a direct form. The act 21 and 22
Vict. c. 27, provided for trial by jury in the court of chancery.
FELAGUS. In Saxon law, one bound for another by oath; a sworn brother. A friend bound
in the decennary for the good behavior of another. One who took the place of the deceased.
Thus, if a person was murdered, the recompense
due from the murderer went to the felagus of
the slain, in default of parents or lord. Cunningham; Cowell; Du Cange.
FELD. A field; in composition, wild. Blount.
FELE, FEAL. L. Fr. Faithful. See Feal.
FELLATIO, or FELLATION. The offense committed with the male sexual organ and the mouth.
State v. Murry, 136 La. 253, 66 So. 963. See Sodomy.
FELLOW. A co-worker; a partaker or sharer
of; a companion; one with whom we consort;
one joined with another in some legal status or
relation; a member of a college or corporate
body.
FELLOW-HEIR. A co-heir; partner of the same
inheritance.
FELLOW SERVANT. One who serves and is
controlled by the same master. Walsh v. Eubanks, 183 Ark. 34, 34 S.W.2d 762, 764.
Those engaged in the same common pursuit, under the
same general control. Cooley, Torts 541. Those who derive
authority and compensation from the same common source,
and are engaged in the same general business, though it
may be in different grades or departments of it. 2 Thomp.
Neg. p. 1026, § 31; Southern Ry. Co. v. Taylor, 57 App.D.C.
21, 16 F.2d 517, 519; Brush Electric Light Co. v. Wells, 110
Ga. 192, 35 S.E. 365. When servants are employed and paid
by the same master, and their duties are such as to bring
them into such relation that negligence of one in doing his
work may injure other in performance of his, then they are
engaged in the same common business, and are "fellow
servants." Hercules Powder Co. v. Hammack, 145 Miss.
304, 110 So. 676, 677. But it has been held that an inferior
employee is not a "fellow servant" of a superior employee.
McDonald v. Louisville & N. R. Co., 232 Ky. 734, 24 S.W.2d
585, 587.
Convicts in involuntary servitude, having no power to
refuse to enter upon the service to which they have been
hired out by the state, or to quit it, are not "fellow servants." Sloss-Sheffield Steel & Iron Co. v. Weir, 179 Ala.
227, 60 So. 851, 853.
FELLOW-SERVANT RULE. The rule that the
master is not liable for injuries to a servant,
caused by the negligence of a fellow servant engaged in the same general business, where the
master has exercised due care in selection of servants. Setzkorn v. City of Buffalo, 219 App.Div.
416, 219 N.Y.S. 351, 352.
FELO DE SE. A felon of himself; a suicide ar
murderer of himself.
Where a man of the age of discretion (14 years at common law) and compos mentis voluntarily kills himself.
Southern Life & Health Ins. Co. v. Wynn, 29 Ala.App. 207,
194 So. 421, 422. One who commits some unlawful or malicious act which results in his own death. Hale, P.C. 411;
4 Bl.Comm. 189; Life Ass'n v. Waller, 57 Ga. 536.
FELON. A person who commits a felony. In re
La Grange, 153 Misc. 236, 274 N.Y.S. 702. One
convicted of felony.
But a person who has committed a felony, been convicted, served his sentence, and been discharged, may be
deemed, at least for some purposes, to be no longer a
felon; 3 Exch. Div. 352.
FELONIA. Felony. The act or offense by which
a vassal forfeited his fee. Spelman; Calvin.
Per feloniam, with a criminal intention. Co. Litt.
391.
FELONIA, EX VI TERMINI SIGNIFICAT
QUODLIBET CAPITALE CRIMEN FELLEO ANIMO PERPETRATUM. Co. Litt. 391. Felony, by
force of the term, signifies any capital crime perpetrated with a malignant mind.
FELONIA IMPLICATUR IN QUALIBET PRODITIONE. 3 Inst. 15. Felony is implied in every
treason.
FELONICE. Feloniously. Cunningham, Law
Dict.
Anciently an indispensable word in indictments for felony, and classed by Lord Coke among those voces artis
( words of art) which cannot be expressed by any periphrasis or circumlocution. 4 Coke, 39; Co.Litt. 391a; 4
Bl.Comm. 307.
FELONIOUS. A technical word of law which
means done with intent to commit crime; of the
grade or quality of a felony; such an assault on
the person as, if consummated, would subject
party making it, on conviction, to punishment of
a felony. Martin v. State, 163 Miss. 454, 142 So.
15, 16. Malicious; villainous; traitorous. People
v. Knapp, 152 Misc. 368, 274 N.Y.S. 85. Malignant. People v. Moore, 37 Hun, N.Y., 93. Wrongful. State v. Uhler, 32 N.D. 483, 156 N.W. 220,
226. Proceeding from an evil heart or purpose.
Gatewood v. Commonwealth, 215 Ky. 360, 285 S.W.
193, 194. Wickedly and against the admonition
of the law; unlawfully. State v. Allister, 317 Mo.
743
FELONIOUS
common law; State v. Murphy, 17 R.I. 698, 24 A.. 473, 16
L.R.A. 550.
348, 295 S.W. 754, 757. In the law of larceny,
"felonious" is synonymous with fraudulent; State
v. Albert, 117 Or. 179, 242 P. 1116, 1117; and means
done "animo furandi," that is, with intent to steal.
Fountain v. State, 92 Fla. 262, 109 So. 463, 464.
FELONIOUS ASSAULT. Such an assault upon
the person as, if consummated, would subject the
party making it, upon conviction, to the punishment of a felony, that is, to imprisonment in the
penitentiary. Hinkle v. State, 94 Ga. 595, 21 S.E.
595.
FELONIOUS HOMICIDE. Killing of human being without justification or excuse. State v. Plumlee, 171 La. 687, 149 So. 425, 431. There are two
degrees: manslaughter and murder. It may include killing oneself. 4 Bl. Comm. 188, 190; 4
Steph. Comm. 108, 111; State v. Symmes, 40 S.C.
383, 19 S.E. 16.
FELONIOUSLY. Of, pertaining to, or having,
the quality of felony. People v. Thomas, 58 Cal.
App. 308, 208 P. 343, 344.
Means proceeding from an evil heart or purpose
done with a deliberate intention of committing a
crime. Golden v. Commonwealth, 245 Ky. 19, 53
S.W.2d 185, 186. Without color of right or excuse.
State v. Enanno, 96 Conn. 420, 114 A. 386, 387.
Malignantly; maliciously. State v. Horne, 62
Utah, 376, 220 P. 378, 381. Wickedly and against
the admonition of the law. State v. Young, 314
Mo. 612, 286 S.W. 29, 34. With a felonious intent.
An indispensable word at common law in indictments for
felony, as felonice was in the Latin forms. 4 Bl.Comm.
307; State v. Jesse, 19 N.C. 300; Com.Dig. Indictment
( G 6) ; Bac.Abr. Indictment (G 1) ; 2 Hale, Pl.Cr. 172, 184;
1 Ben. & H. Lead. Cr.Cas. 154. It is still necessary in
describing a common-law felony, or where its use is prescribed by statute; Whart.Cr.P1. § 260; Bowler v. State,
41 Miss. 570; Cain v. State, 18 Tex. 387.
FELONY. A crime of a graver or more atrocious nature than those designated as misdemeanors. Ex parte Ramirez, 49 Cal.App.2d 709, 122 P.
2d 361, 362. Generally an offense punishable by
death or imprisonment in penitentiary. People
v. Pointer, 348 Ill. 277, 180 N.E. 796, 797, or state
prison. State v. Harwood, 206 N.C. 87, 173 S.E.
24, 25. And at common law, an offense occasioning total forfeiture of either land or goods to
which capital or other punishment might be superadded according to degree of guilt. Bell v.
Commonwealth, 167 Va. 526, 189 S.E. 441, 443.
Felony, compounding of. See Compounding
Felony.
Misprision of felony. See Misprision.
Reducible felony. A felony upon conviction of
which the offender may be punished as for a
misdemeanor, upon recommendation of the jury.
Atkins v. State, 154 Ga. 540, 114 S.E. 878.
American Law
The term has no very, definite or precise meaning, except
in some cases where it is defined by statute. In general,
what is felony under the English common law is such under
ours, 1 Bish.Cr.L. § 617; Clark, Cr.L. 33. A crime is not
a felony unless so declared by statute, or it was such at the
Whether an offense is a "felony" depends on whether the
offense may be punished by confinement in the penitentiary
and not on whether such punishment of necessity follows
conviction of that offense. Lashley v. State, 236 Ala. 1. 1.80
So. 717, 718, 719. Sentence actually given determines
nature of offense. People v. Brown, 52 Cal.App.2d 428, 126
P.2d 406, 408.
Under U. S. Cr. Code, § 335, 18 U.S.C.A. § 1, offenses
punishable by death or imprisonment for a term exceeding
one year are felonies. Joplin Mercantile Co. v. United
States, C.C.A.Mo., 213 F. 926, 935, Ann.Cas.1916C, 470.
English Law
This term meant originally the state of having forfeited
lands and goods to the crown upon conviction for certain
offenses, and then, by transition, any offense upon conviction for which such forfeiture followed, in addition to
capital or any other punishment prescribed by law; as
distinguished from a "misdemeanor," upon conviction for
which no forfeiture followed. All indictable offenses are
either felonies or misdemeanors, but a material part of the
distinction is taken away by St. 33 & 34 Vict. c. 23, which
abolishes forfeiture for felony. Wharton; 4 B1&Comm. 94;
1 Russ.Cr. 78; Co.Litt. 391; 1 Hawk Pl.Cr. c. 37; U. S. v.
Smith, 5 Wheat., U. S., 153, 5 L.Ed. 57; 1 Bish. New Cr.L.
§ 616.
At early common law the term was applied to describe
the more serious offenses cognizable in the royal courts,
conviction for which entailed forfeiture of life, limb and
chattels and escheat of lands to the felon's lord after a year
and a day in the king's hands. Subsequently, however, the
classification was so greatly enlarged that many offenses
not involving moral turpitude were included therein. In re
Donegan, 282 N.Y. 285, 26 N.E.2d 260, 261.
Feudal Law
An act or offense on the part of the vassal, which cost
him his fee, or in consequence of which his fee fell into the
hands of his lord; that is, became forfeited.' (See Felonia.) Perfidy, ingratitude, or disloyalty to a lord.
FELONY ACT. The statute 33 & 34 Vict. c. 23,
abolishing forfeitures for felony, and sanctioning
the appointment of interim curators and administrators of the property of felons. Mozley &
Whiteley; 4 Steph. Comm. 10, 459.
FELONY-MURDER RULE. Any homicide committed while perpetrating or attempting felony is
first-degree murder. Payne v. State, 406 P.2d 922,
924, 81 Nev. 503; Element of legal malice is supplied from the commission of the felony. Corn. v.
Cater, 152 A.2d 259, 261, 396 Pa. 172.
FELTING. In the process of "felting," as applied to the manufacture of fur felt hats, the fur
fibers become interlocked with the wool fibers, or
with other fibers of fur, for their whole length.
Matteawan Mfg. Co. v. Emmons Bros. Co., C.C.A.
Mass., 253 F. 372, 375. See, also, Werk v. Parker,
C.C.A.Pa., 231 F. 121, 123.
FEMALE. The sex which conceives and gives
birth to young. Also a member of such sex. The
term is generic, but may have the specific mean-
ing of "woman," if so indicated by the context.
State v. Hemm, 82 Iowa, 609, 48 N.W. 971; State
v. Phillips, 26 N.D. 206, 144 N.W. 94, 95, 49 L.R.A.,
N.S., 470, Ann.Cas.1916A, 320.
Unmarried female, is a term descriptive not only of those
who have never married, but also of widows and divorced
women. People v. Weinstock, 27 N.Y.Cr.R. 53, 140 N.Y.S.
453, 458.
744
FEODARY
FEME, FEMME. L. Fr. A woman. Ducre v.
Milner, La.App., 146 So. 734, 736. Also, a wife,
as in the phrase "baron et feme" (q. v.).
FEME COVERT. A married woman. Generally
used in reference to the legal disabilities of a married woman, as compared with the condition of a
feme sole. Hoker v. Boggs, 63 I11.161.
FEME SOLE. A single woman, including those
who have been married, but whose marriage has
been dissolved by death or divorce, and, for most
purposes, those women who are judicially separated from their husbands. Mozley & Whiteley; 2
Steph. Comm. 250. Kirkley v. Lacey, 7 Houst.
Del. 213, 30 A. 994.
FEME SOLE TRADER. In English law, a married woman, who, by the custom of London, trades
on her own account, independently of her husband; so called because, with respect to her
trading, she is the same as a feme sole. Jacob;
Cro. Car. 68. The term is applied also to women
deserted by their husbands, who do business as
femes sole. Rhea v. Rhenner, 1 Pet. 105, 7 L.Ed.
72.
The custom was recognized as common law in South
Carolina, but did not extend beyond trading in merchandise; McDaniel v. Cornwell, 1 Hill, S.C., 429; Newbiggin
v. Pillans, 2 Bay, S.C., 164. By statute in several states a
similar custom is recognized, as in Pennsylvania, by act of
Feb. 22, 1718, 48 P.S. § 41. Black v. Tricker, 59 Pa. 13;
People's Sa y . Bank v. Denig, 131 Pa. 241, 18 A. 1083.
FEMICIDE. The killing of a woman. Wharton.
One who kills a woman.
FEMININE. Of or belonging to females.
FEMME COULEUR LIBRE. Up to the time of
Civil War, term applied to all persons not of the
white race, including Indians. Sunseri v. Cassagne, 191 La. 209, 185 So. 1, 4.
FENCE-MONTH, or DEFENSE-MONTH. In old
English law, a period of time, occurring in the
middle of summer, during which it was unlawful
to hunt deer in the forest, that being their fawning season. Probably so called because the deer
were then defended from pursuit or hunting.
Manwood; Cowell; Spelman.
FENCING PATENTS. Patents procured in an
effort to broaden the scope of the invention beyond the article or process which is actually intended to be manufactured or licensed. Special
Equipment Co. v. Coe, 79 U.S.App.D.C. 133, 144 F.
2d 497, 499.
FENDER. A guard or protection against danger.
Cape May, D. B. & S. P. R. Co. v. Cape May, 59
N.J.L. 396, 36 A. 696, 36 L.R.A. 653. A safety device sometimes called life guard, on street cars.
Tampa Electric Co. v. Bazemore, 85 Fla. 164, 96
So. 297, 298; Galveston Electric Co. v. Swank,
Tex.Civ.App., 188 S.W. 704, 706.
FENERATION. Usury; the gain of interest;
the practice of increasing money by lending.
Sometimes applied to interest on money lent. See
Colebrook, Dig. Hindu Law, I. 7.
FENGELD. In Saxon law, a tax or imposition,
exacted for the repelling of enemies. Spelman.
FENIAN. A champion, hero, giant. This word,
in the plural, is generally used to signify invaders
or foreign spoilers. The modern meaning of
"Fenian" is a member of an organization of persons of Irish birth, resident in the United States,
Canada, and elsewhere, having for its aim the
overthrow of English rule in Ireland. Webster.
FEOD. The same as feud or fief. 2 Bla. Comm.
45; Spelman.
FENATIO (or FEONATIC). In forest law, the
fawning of deer; the fawning season. Spelman.
FEODAL. Belonging to a fee or feud; feudal.
More commonly used by the old writers than
feudal.
FENCE, v. In old Scotch law, to defend or protect by formalities.
FEODAL ACTIONS. Real actions. 3 Bla. Comm.
117.
To "fence a court" was to open it in due form, and interdict all manner of persons from disturbing their proceedings. This was called "fencing," q. d., defending or protecting the court. Pitcairn, Cr.Law, pt. 1, p. 75.
FEODAL SYSTEM. See Feudal System.
FENCE, n. A hedge, structure, or partition, erected for the purpose of inclosing a piece of land, or
to divide a piece of land into distinct portions, or
to separate two contiguous estates. Kimball v.
Carter, 95 Va. 77, 27 S.E. 823, 38 L.R.A. 570; Estes
v. Railroad Co., 63 Me. 309.
An enclosure about a field or other space, or about any
object; especially an enclosing structure of wood, iron or
other materials, intended to prevent intrusion from without or straying from within. Mutual Lumber Co. v. Sheppard, Tex.Civ.App., 173 S.W.2d 494, 499.
A colloquial characterization of a receiver of
stolen property. People v. Fishel, 270 Mich. 82,
258 N.W. 217.
FENCE COUNTY. A county where the stock law
has not been adopted. McKenzie v. Powell, 68
Ga.App. 285, 22 S:E.2d 735, 736.
FEODALITY. Fidelity or fealty. Cowell. See
Fealty.
FEODARUM (or FEUDARAM) CONSUETUDINES. The customs of feuds. The name of a
compilation of feudal laws and customs made at
Milan in the twelfth century. It is the most ancient work on the subject, and was always regarded, on the continent of Europe, as possessing the
highest authority.
FEODARY. An officer of the court of wards,
appointed by the master of that court, under 32
Hen. VIII. c. 26, whose business it was to be present with the escheator in every county at the finding of offices of lands, and to give evidence for
the king, as well concerning the value as the tenure; and his office was also to survey the land of
the ward, after the office found, and to rate it.
745
FEODATORY
He also assigned the king's widows their dower;
and received all the rents, etc. Abolished by 12
Car. II. c. 24. Wharton; Kennett, Gloss.; Cowell.
FEOFFATOR. In old English law, a feoffer or
feoffor; one who gives or bestows a fee; one
who makes a feoffment. Bract. fols. 12b, 81.
FEODATORY, or FEUDATORY. In feudal law,
the grantee of a feod, feud, or fee; the vassal or
tenant who held his estate by feudal service.
Termes de la Ley. Blackstone uses "feudatory!'
2 B1. Comm. 46.
FEOFFATUS. In old English law, a feoffee; one
to whom a fee is given, or a feoffment made.
Bract. fols. 17b, 44b.
FEODI FIRMA. In old English law, fee-farm
(q. v.).
FEODI FIRMARIUS. The lessee of a fee-farm.
FEODUM. This word (meaning a feud or fee)
is the one most commonly used by the older English law-writers, though its equivalent, "feudum"
(q. v.), is used generally by the more modern
writers and by the feudal law-writers. Litt. § 1;
Spelman.
There were various classes of feoda, among which may
be enumerated the following: Feodum laicum, a lay fee.
Feodum militare, a knight's fee.. Feodum improprium, an
i mproper or derivative fee. Feodum proprium, a proper
and original fee, regulated by the strict rules of feudal succession and tenure. Feodum simplex, a simple or pure fee;
fee-simple. Feodum talliatum, a fee-tail. See 2 BI.Comm.
58, 62; Litt §§ 1, 13; Bract. fol. 175; Glan. 13, 23.
In old English law, a seigniory or jurisdiction.
Fleta, lib. 2, c. 63, § 4. A fee, a perquisite or compensation for a service. Fleta, lib. 2, c. 7.
FEODUM ANTIQUUM. A feud which devolved
upon a vassal from his intestate ancestor.
FEODUM EST QUOD QUIS TENET EX QUACUNQUE CAUSA SIVE SIT TENEMENTUM
SIVE REDDITUS. Co. Litt. 1. A fee is that
which any one holds from whatever cause, whether tenement or rent.
FEODUM NOBILE. A fief for which the tenant
did guard and owed homage. Spelman.
FEODUM NOVUM. A feud acquired by a vassal
himself.
FEODUM SIMPLEX QUIA FEODUM IDEM EST
QUOD ILEREDITAS, ET SIMPLEX IDEM EST
QUOD LEGITIMUM VEL PURUM; ET SIC FEODUM SIMPLEX IDEM EST QUOD HAZEREDITAS
LEGITIMA VEL H1EREDITAS PURA. Litt. § 1.
A fee-simple, so called because fee is the same as
inheritance, and simple is the same as lawful or
pure; and thus fee-simple is the same as a lawful inheritance, or pure inheritance.
FEODUM TALLIATUM, I. e., HIEREDITAS IN
QUANDAM CERTITUDINEM LIMITATA. Litt.
§ 13. Fee-tail,
e., an inheritance limited in a
definite descent.
FEOFFAMENTUM. A feoffment. 2 Bl. Comm.
310.
FEOFFARE. To enfeoff; to bestow a fee. The
bestower was called "feoff ator," and the grantee
or feoffee, "feoff atus." 1 Reeve, Hist. Eng. Law,
91.
FEOFFEE. He to whom a fee is conveyed. Litt.
§ 1; 2 Bl. Comm. 20.
FEOFFEE TO USES. A person to whom land
was conveyed for the use of a third party. (The
latter was called "cestui que use.") One holding
the same position with reference to a use that a
trustee does to a trust. 1 Greenl. Cruise, Dig. 333.
He answers to the hares fiduciarius of the Roman
law.
FEOFFMENT. The gift of any corporeal hereditament to another (2 Bl. Comm. 310), operating by transmutation of possession, and requiring,
as essential to its completion, that the seisin be
passed (Watk. Con y . 183), which might be accomplished either by investiture or by livery of
seisin. 1 Washb. Real Prop. 33. Thatcher v.
Omans, 3 Pick., Mass., 532; French v. French, 3
N.H. 260. A gift of a freehold interest in land
accompanied by livery of seisin. The essential
part is the livery of seisin, 3 Holdsw. Hist. E. L.
187.
Also the deed or conveyance by which such corporeal hereditament is passed.
A feoffment originally meant the grant of a feud or fee;
that Is, a barony or knight's fee, for which certain services
were due from the feoffee to the feoffor. By custom it
came afterwards to signify also a grant (with livery of
seisin) of a free inheritance to a man and his heirs, referring rather to the perpetuity of the estate than to the
feudal tenure. 1 Reeve, Eng.Law, 90, 91. It was for ages
the only method (in ordinary use) for conveying the freehold of land in possession, but has now fallen in great
measure into disuse, even in England, having been almost
entirely supplanted by some of that class of conveyances
founded on the statute law of the realm. 1 Steph.Comm.
467, 468; Dane, Abr. c. 104; Stearn, Real Act. 2; Green v.
Liter, 8 Cranch, U.S., 229, 3 L. Ed. 545.
FEOFFMENT TO USES. A feoffment of lands
to one person to the use of another.
In such case the feoffee was bound in conscience to hold
the lands according to the use, and could himself derive no
benefit. Sometimes such feoffments were made to the use
of the feoffer. The effect of such conveyance was entirely
changed by the statute of uses. See Wms.R.P., 6th Ed.,
155; 2 Sand.Us. 13; Watk.Conv. 288.
FEOFFOR. The person making a feoffment, or
enfeoffing another in fee. 2 Bl. Comm. 310; Litt.
§§ 1, 57.
FEOH. This Saxon word meant originally cattle,
and thence property or money, and, by a second
transition, wages, reward, or fee. It was probably the original form from which the words "feod,"
"feudum," "fief," "feu," and "fee" (all meaning a
feudal grant of land) have been derived. Spelman, Feuds.
FEONATIO, In forest law, the fawning season
of deer.
746
FERRY
FEORME. A certain portion of the produce of
the land due by the grantee to the lord according
to the terms of the charter. Spel. Feuds, c. 7.
FERME. A farm; a rent; a lease; a house or
land, or both, taken by indenture or lease. Plowd.
195; Vicat; Cowell. See Farm.
FERZE BESTIIE. Wild beasts.
FERMENTATION. A decomposition produced in
an organic substance by the physiological action
of a living organism, or by certain unorganized
agents. U. S. v. Dodson, D.C.Cal., 268 F. 397, 403.
FERIE NATURIE, Lat. Of a wild nature or
disposition.
Animals which are by nature wild are so designated, by
way of distinction from such as are naturally tame, the latter being called "dotnitce natu,rce." Fleet v. Hegeman, 14
Wend., N.Y., 43; State v. Taylor, 27 N.J.L. 119, 72 Am.
Dec. 347; Gillet v. Mason, 7 Johns., N.Y., 17.
FERMENTED LIQUORS. Beverages produced
by, or which have undergone, a process of alcoholic fermentation, to which they owe their intoxicating properties, including beer, wine, hard cider,
and the like, but not spirituous or distilled liquors.
State v. Lemp, 16 Mo. 391; State v. Biddle, 54 N.
H. 383; People v. Foster, 64 Mich. 715, 31 N.W.
596; Hill v. State, 174 Md. 137, 197 A. 795, 799.
FERCOSTA. Ital. A kind of small vessel or
boat. Mentioned in old Scotch law, and called
"fercost." Skene.
FERDELLA TERRIE. A fardel-land; ten acres;
or perhaps a yard-land. Cowell.
FERMER, FERMOR. A lessee; a farmer. One
who holds a term, whether of lands or an incorporeal right, such as customs or revenue.
F'ERDFARE. Sax. A summons to serve in the
army. An acquittance from going into the army.
Fleta, lib. 1, c. 47, § 23.
FERMIER. In French law, one who farms any
public revenue.
FERDINGUS. A term denoting, apparently, a
freeman of the lowest class, being named after
the cotsetti. Anc. Inst. Eng.
FERMISONA. In old English law, the winter
season for killing deer.
FERDWITE. In Saxon law, an acquittance of
manslaughter committed in the army; also a
fine imposed on persons for not going forth on a
military expedition. Cowell.
FERIA. In old English law, a weekday; a holiday; a day on which process could not be served;.
a fair; a ferry. Cowell; Du Cange; Spelman;
4 Reeve, Hist. Eng. Law 17.
FERLIE. In Roman law, holidays; generally
speaking, days or seasons during which free-born
Romans suspended their political transactions and
their lawsuits, and during which slaves enjoyed
a cessation from labor.
All ferice were thus dies nefasti. All fence were divided
into two classes,—"ferice publicce" and "ferice privatce."
The latter were only observed by single families or individuals, in commemoration of some particular event which had
been of importance to them or their ancestors. Smith,
Diet. Anti q.
Numerous festivals were called by this name in the early
Roman empire. In the later Roman empire the single days
occurring at intervals of a week apart, commencing with
the seventh day of the ecclesiastical year, were so called.
Du Cange.
FERIAL DAYS. Originally and properly, days
free from labor and pleading; holidays. In statute 27 Hen. VI. c. 5, working-days; weekdays,
as distinguished from Sunday. Cowell.
FERITA. In old European law, a wound; a
stroke. Spelman.
FERLING. In old records, the fourth part of a
penny; also the quarter of a ward in a borough.
FERLINGATA. A fourth part of a yard-land.
FERLINGUS, or FERLINGUM. A furlong. Co.
Litt. 5 b.
FERM, or FEARM. A house or land, or both, let
by lease. Cowell.
FERMORY. In old records, a place in monasteries, where they received the poor, (hospicio excipiebant,) and gave them provisions (ferm, firma.) Spelman. Hence the modern infirmary,
used in the sense of a hospital.
FERNIGO. In old English law, a waste ground,
or place where fern grows. Cowell.
FERRATOR. A farrier (q. v.).
FERRI. In the civil law, to be borne; that is on
or about the person. This was distinguished from
portari, (to be carried,) which signified to be carried on an animal. Dig. 50, 16, 235.
FERRIAGE. The toll or fare paid for the transportation of persons and property across a ferry.
Literally speaking, it is the price or fare fixed by law
for the transportation of the traveling public, with such
goods and chattels as they may have with them, across a
river, bay, or lake. People v. San Francisco & A. R. Co.,
35 Cal. 606.
FERRIFODINA. In old pleading, an iron mine.
Townsh.Pl. 273.
FERRUERE, or FERRURA. The shoeing of
horses. Kelham. See Ferrum.
FERRUM. Iron. In old English law, a horseshoe. Ferrura, shoeing of horses.
FERRY. A place of transit across a river or arm
of the sea. Woolr.Ways 217. In law it is treated
as a franchise, and defined as the exclusive right
to carry passengers across a river, or arm of the
sea, from one vill to another, or to connect a continuous line of road leading from township or vill
to another. Canadian Pac. Ry. Co. v. U..S., C.C.A.
Wash., 73 F.2d 831, 832.
A continuation of the highway from one side
of the water over which it passes to the other, for
transportation of passengers or of travelers with
747
FERRY
their teams and vehicles and such other property
as they may carry or have with them. U. S. v.
Puget Sound Na y . Co., D.C.Wash., 24 F.Supp. 431,
432.
A liberty to have a boat on a stream, river, arm
of the sea, lake, or other body of water for the
transportation of men, horses, and vehicles with
their contents, for a reasonable toll. Sometimes
limited to the landing place. State Highway Commission v. Smith, 250 Ky. 269, 62 S.W.2d 1044.
It may be said to be necessary service by specially constructed boat to carry passengers and property across rivers
or bodies of water from place on one shore to point conveniently opposite on other shore and continuation of highway making connection with thoroughfare at each terminus. U. S. v. Canadian Pac. Ry. Co., D.C.Wash., 4 F.Supp.
851, 853. It comprises not merely the exclusive privilege of
transportation, but also the use for that purpose of the
respective landings, with the outlets therefrom. Hale v.
Record, 74 Old. 77, 176 P. 756, 757.
A public ferry is one to which all the public have the
right to resort, for which a regular fare is established, and
the ferryman is a common carrier, bound to take over all
who apply, and bound to keep his ferry in operation and
good repair. Hudspeth v. Hall, 111 Ga. 510, 36 S.E. 770;
Broadnax v. Baker, 94 N.C. 681, 55 Am.Rep. 633.
A private ferry is one mainly for the use of the owner,
and though he may take pay for ferriage, he does not follow it as a business. His ferry is not open to the public
at its demand, and he may or may not keep it in operation.
Hudspeth v. Hall, supra; St. Paul Fire & Marine Ins. Co.
v. Harrison, 140 Ark. 158, 215 S.W. 698.
FERRY FRANCHISE. The public grant of a
right to maintain a ferry at a particular place; a
right conferred to land at a particular point and
secure toll for the transportation of persons and
property from that point across the stream. Mills
v. St. Clair County, 7 Ill. 208. A grant to a named
person empowering him to continue an interrupted land highway over the interrupting waters.
U. S. v. Puget Sound Na y. Co., D.C.Wash., 24 F.
Supp. 431, 432.
FERRYBOAT. A vessel traversing any of the
waters of the state between two constant points
regularly employed for the transfer of passengers
and freight, authorized by law so to do, and also
any boat employed as a part of the system of a
railroad for the transfer of passengers and freight
plying at regular and stated periods between two
points. Pol.Code Cal. § 3643; Lake Tahoe Ry. &
Transp. Co. v. Roberts, 168 Cal. 551, 143 P. 786,
789, Ann.Cas.1916E, 1196.
FERRYMAN. One employed in taking persons
across a river or other stream, in boats or other
contrivances, at a ferry. Covington Ferry Co. v.
Moore, 8 Dana, Ky., 158; State v. Clarke, 2 McCord, S.C., 48, 13 Am.Dec. 701.
FESTA IN CAPPIS. In old English law, grand
holidays, on which choirs wore caps. Jacob.
FESTINATIO JUSTITLE EST NOVERCA INFORTUNII. Hob. 97. Hasty justice is the stepmother of misfortune.
FESTING–MAN. In old English law, a bondsman; a surety; a frank-pledge, or one who was
surety for the good behavior of another. Monasteries enjoyed the privilege of being "free from
festing-men," which means that they were "not
bound for any man's forthcoming who should
transgress the law." Cowell. See Frank-Pledge.
FESTING--PENNY. Earnest given to servants
when hired or retained. The same as arles-penny.
Cowell.
FESTINUM REMEDIUM. Lat. A speedy remedy.
A term applied to those cases where the remedy for the
redress of an injury is given without any unnecessary
delay. Bacon, Abr. Assise, A. The action of dower is
festinum remedium. The writ of assise was also thus characterized (in comparison with the less expeditious remedies
previously available) by the statute of Wdstminster 2 (13
Edw. I. c. 24.)
FESTUCA. In Frankish law, a rod or staff or (as
described by other writers) a stick, on which imprecatory runs were cut, which was used as a gage
or pledge of good faith by a party to a contract,
or for symbolic delivery in the conveyance or
quit-claim of land, before a court of law, anterior
to the introduction of written documents by the
Romans. 2 Poll. & Maitl. 86, 184, 190; Maitl.
Domesday Book and Beyond 323.
FESTUM. A feast, holiday, or festival. Festum
stultorum, the feast of fools.
FETICIDE. In medical jurisprudence, destruction of the fetus; the act by which criminal abortion is produced. 1 Beck, Med.Jur. 288; Guy, Med.
Jur. 133. See, also, Prolicide.
FETTERS. Chains or shackles for the feet; irons
used to secure the legs of convicts, unruly prisoners, etc. Similar chains securing the wrists
are called "handcuffs."
FEU. In Scotch law, a holding or tenure where
the vassal, in place of military service, makes his
return in grain or money. Distinguished from
"wardholding," which is the military tenure of
the country. Bell; Erskine, Inst. lib. tit. 3, §
7.
FEU ANNUALS. In Scotch law, the reddendo,
or annual return from the vassal to a superior
in a feu holding. Wharton, Diet., 2d Lond.Ed.
FEU ET LIEU. Fr. In old French and Canadian
law, hearth and home. A term importing actual
settlement upon land by a tenant.
FEU HOLDING. A holding by tenure of rendering grain or money in place of military service.
Bell.
FEUAR. In Scotch law, the tenant or vassal of
a feu; a feu-vassal. Bell.
FEUD. Feudal law. An estate in land held of
a superior on condition of rendering him services.
2 Bl.Comm. 105. An inheritable right to the use
and occupation of lands, held on condition of rendering services to the lord or proprietor, who himself retains the property in the lands. See Spel.
Feuds, c. 1.
In this sense the word is the same as "feod,"
"feodum," "feudum," "fief," or "fee." 1 Sullivan
748
FEUDORUM
and possibly furthered by notions taken from the
Roman jurisprudence,
Lect. 128; 1 Spence, Eq.Jur. 34; Dalrymple, Feud.
Pr. 99; 1 Washb.R.P. 18; Mitch.R.P. 80.
Saxon and Old German Law
An enmity, or species of private war, existing
between the family of a murdered man and the
family of his slayer. In Scotland and the north
of England, a combination of all the kin to revenge the death of any of the blood upon the
slayer and all his race. Termes de la Ley; Whishaw. See Deadly Feud; Faida.
Military Feuds
The genuine or original feuds which were in the
hands of military men, who performed military
duty for their tenures.
FEUDA. Feuds or fees.
FEUDAL. Pertaining to feuds or fees; relating to or growing out of the feudal system or
feudal law; having the quality of a feud, as distinguished from "allodial."
FEUDAL ACTIONS. An ancient name for real
actions, or such as concern real property only. 3
Bl.Comm. 117.
FEUDAL COURTS. In the 12th century a lord
qua lord had the right to hold a court for his
tenants.
In the 13th century, they became of less importance and
for three reasons: The feudal principle would have led to
a series of courts one above the other, and the dominions
of the large landowners were usually scattered, so that
great feudal courts became impossible. The growth of the
jurisdiction of the king's court removed the necessity for
feudal courts. All the incidents of the feudal system came
to be regarded in a commercial spirit-as property. Its
jurisdiction became merely appendant to landowning. 1
Holdsw.Hist.E.L. 64.
FEUDAL LAW. The body of jurisprudence relating to feuds; the real-property law of the feudal system; the law anciently regulating the property relations of lord and vassal, and the creation,
incidents, and transmission of feudal estates.
The body of laws and usages constituting the "feudal
law" was originally customary and unwritten, but a compilation was made in the twelfth century, called "Feodarum
Consuetudines," which has formed the basis of later
digests. The feudal law prevailed over Europe from the
twelfth to the fourteenth century, and was introduced into
England at the Norman Conquest, where it formed the
entire basis of the law of real property until comparatively
modern times. Survivals of the feudal law, to the present
day, so affect and color that branch of jurisprudence as to
require a certain knowledge of the feudal law in order to
the perfect comprehension of modern tenures and rules of
real-property law.
FEUDAL POSSESSION. The equivalent of "seisin" under the feudal system.
FEUDAL SYSTEM. The system of feuds. A political and social system which prevailed throughout Europe during the eleventh, twelfth, and thirteenth centuries, and is supposed to have grown,
out of the peculiar usages and policy of the Teutonic nations who overran the continent after the
fall of the Western Roman Empire, as developed
by the exigencies of their military domination,
It was introduced into England, in its completeness, by
William I., A. D. 1085, though it may have existed in a
rudimentary form among the Saxons before the Conquest.
It formed the entire basis of the real-property law of England in medieval times; and survivals of the system,- in
modern days, so modify and color that branch of jurisprudence, both in England and America, that many of its
principles require for their complete understanding a
knowledge of the feudal system. The feudal system originated in the relations of a military chieftain and his followers, or king and nobles, or lord and vassals, and especially their relations as determined by the bond established
by a grant of land from the former to the latter. From
this it grew into a complete and intricate complex of rules
for the tenure and transmission of real estate, and of correlated duties and services; while, by tying men to the
land and to those holding above and below them, it created
a close-knit hierarchy of persons, and developed an aggregate of social and political institutions. For an account of
the feudal system in its juristic relations, see 2 Bl.Comm.
44; 1 Steph.Comm. 160; 3 Kent, Comm. 487; Spel.Feuds;
Litt.Ten.; Su11.Lect. ; Spence, Eq.Jur.; 1 Washb.Real.
Prop. 15; Dalr.Feu.Prop. For its political and social relations, see Hall, Middle Ages; Maine, Anc.Law; Rob. Car.
V.; Montesq. Esprit des Lois, bk. 30; Guizot, Hist.Civilization.
FEUDAL TENURES. The tenures of real estate
under the feudal system, such as knight-service,
socage, villenage, etc.
FEUDALISM. The feudal system; the aggregate
of feudal principles and usages.
It is a vague term to describe a congeries of customs and
legal relations by no means uniform throughout Europe
and never static. But feudalism had one basic characteristic traceable through all its variations: It rested on
relations to land, the primary factor in a relatively primitive agrarian civilization. United States v. Forness, C.C.A.
N.Y., 125 F.2d 928, 933.
FEUDALIZE. To reduce to a feudal tenure; to
conform to feudalism. Webster.
FEUDARY. A tenant who holds by, feudal tenure, (also spelled "feodatory" and "feudatory.")
Held by feudal service. Relating to feuds or feudal tenures.
FEUDBOTE. A recompense for engaging in a
feud, and the damages consequent, it having been
the custom in ancient times for all tale kindred to
engage in their kinsman's quarrel. Jacob.
FEUDE. An occasional early form of "feud" in
the sense of private war or vengeance. Termes
de la Ley. See Feud.
FEUDIST. A writer on feuds, as Cujacius, Spelman, etc.
FEUDO. In Spanish law, feud or fee. White,
New Recop. b. 2, tit. 2, c. 2.
FEUDORUM LIBER. The book of feuds.
This was a compilation of feudal law, prepared by order
of the emperor Frederick I., and published at Milan in
1170. It comprised five books, of which only the first two
are now extant with fragmentary portions of the others,
printed at the end of modern editions of the Corpus Juris
Civilis. Giannone, b. 13, c. 3; Cruise, Dig. prel. diss. c.
1, 31.
FEUDORUM LIBEL The Books of Feuds published during the reign of Henry about the
year 1152.
749
FEUDORUM
The particular customs of Lombardy as to feuds began
about the year 1152, to be the standard of authority to
other nations, by reason of the greater refinement with
which that branch of learning had been there cultivated.
This compilation was probably known in England, but does
not appear to have had any other effect than to influence
English lawyers to the more critical study of their own
tenures, and to induce them to extend the learning of real
property so as to embrace more curious matter of similar
kind. 2 Reeves, Hist.Eng.Law, 55.
FEUDUM NOVUM. A new feud or fief; a fief
which began in the person of the feudatory, and
did not come to him by succession. Spelman; 2
Bl.Comm. 212; Priest v. Cummings, 20 Wend. N.Y.
349.
FEUDUM NOVUM UT ANTIQUUM. A new fee
held with the qualities and incidents of an ancient
one. 2 Bl.Comm. 212.
FEUDUM. L. Lat. A feud, fief, or fee. A right
of using and enjoying forever the lands of another, which the lord grants on condition that
the tenant shall render fealty, military duty, and
other services. Spelman. It is not properly the
land, but a right in the land.
This form of the word is used by the feudal writers. The
earlier English writers generally prefer the form feodum.
There was an older word feum.
Its use by the Normans is exceedingly obscure. "Feudal"
was not in their vocabulary. Usually it denoted a stretch
of land, rarely a tenure or mass of rights. It came to be
applied to every person who had heritable rights in land.
Maitl.Domesday Book and Beyond 152.
FEUDUM ANTIQUUM. An ancient feud or fief;
a fief descended to the vassal from his ancestors.
2 Bl.Comm. 212, 221. A fief which ancestors had
possessed for more than four generations. Spelman; Priest v. Cummings, 20 Wend. N.Y. 349.
FEUDUM APERTUM. An open feud or fief; a
fief resulting back to the lord, where the blood of
the person last seised was utterly extinct and
gone or where the tenant committed a crime, or
gave other legal cause. Spelman; 2 Bl.Comm.
245.
FEUDUM FRANCUM. A free feud. One which
was noble and free from talliage and other subsidies to which the plebeia feuda (vulgar feuds)
were subject. Spelman.
FEUDUM HAUBERTICUM. A fee held on the
military service of appearing fully armed at the
ban and arriere ban. Spelman.
FEUDUM IMPROPRIUM. An improper or derivative feud or fief. 2 Bl.Comm. 58.
FEUDUM INDIVIDUUM. An indivisible or impartible feud or fief; descendible to the eldest son
alone. 2 Bl.Comm. 215.
FEUDUM LAICUM. A lay fee.
FEUDUM LIGIUM. A liege feud or fief; a fief
held immediately of the sovereign; one for which
the vassal owed fealty to his lord against all persons. 1 Bl.Comm. 367; Spelman.
FEUDUM MATERNUM. A maternal fief; a fief
descended to the feudatory from his mother. 2
Bl.Comm. 212.
FEUDUM MILITARE. A knight's fee, held by
knight service and esteemed the most honorable
species of tenure. 2 Bla.Comm. 62.
FEUDUM NOBILE. A fee for which the tenant
did guard and owed fealty and homage. Spelman.
FEUDUM PATERNUM. A fee which the paternal
ancestors had held for four generations. Calvin.;
Spelman. One descendible to heirs on the paternal side only. 2 Bl.Comm. 223. One which might
be held by males only. Du Cange.
FEUDUM PROPRIUM. A proper, genuine, and
original feud or fief; being of a purely military
character, and held by military service. 2 Bl.
Comm. 57, 58.
FEUDUM TALLIATUM. A restricted fee. One
li mited to descend to certain classes of heirs. 2
Bl.Comm. 112, note; 1 Washb. Real Prop. 66;
Spelman.
FEUM. An older form of feudum. Maitl. Domesday Book and Beyond 152.
FEW. Not many; of small number. U. S. V.
Margolis, C.C.A.N.J., 138 F.2d 1002, 1003. An indefinite expression for a small or limited number. Pittsburgh, C., C. & St. L. Ry. Co. v. Broderick, 56 Ind.App. 58, 102 N.E. 887, 893. Indicating
a small number of units or individuals which
constitute a whole. Provident Loan Bank v. Parham, 137 Tenn. 483, 194 S.W. 570. A relative term
of great elasticity of meaning. Klann v. Minn,
161 Wis. 517, 154 N.W. 996.
FF. A Latin abbreviation for "Fragmenta," designating the Digest or Pandects in the Corpus
Juris Civilis of Justinian; so called because that
work is made up of fragments or extracts from
the writings of numerous jurists. Mackeld. Rom.
Law, § 74.
FI. FA. An abbreviation for fieri facias, ( which
see.)
FIANCER. L. Fr. To pledge one's faith. Kelham.
FIANZA. Sp. In Spanish law, trust, confidence,
and correlatively a legal duty or obligation arising therefrom.
The term is sufficiently broad in meaning to include both
a general obligation and a restricted liability under a single
instrument. Martinez v. Runkle, 57 N.J.L. 111, 30 A. 593.
But in a special sense, it designates a surety or guarantor,
or the contract or engagement of suretyship; the contract
by which one person engages to pay the debt or fulfil the
obligations of another if the latter should fail to do so.
FIAR. In Scotch law, he that has the fee or feu.
The proprietor is termed "flar," in contradistinction to the life renter. 1 Karnes, Eq. Pref. One
whose property is charged with a life-rent. Where
a right is taken to a husband and wife in conjunct
fee and life-rent, the husband, as the persona
dignior, is the only flan Ersk. Prin. 421.
750
FICTITIOUS
FIARS PRICES. The value of grain in the different counties of Scotland, fixed yearly by the
respective sheriffs, in the month of February, with
the assistance of juries. These regulate the prices of grain stipulated to be sold at the fiar prices,
or when no price has been stipulated. Ersk. 1, 4,
6.
FIAT. (Lat. "Let it be done.") In English practice, a short order or warrant of a judge or magistrate directing some act to be done; an authority
issuing from some competent source for the doing
of some legal act. See 1 Tidd Pr. 100.
One of the proceedings in the English bankrupt
practice, being a power, signed by the lord chancellor, addressed to the court of bankruptcy, authorizing the petitioning creditor to prosecute his
complaint before it. 2 Steph.Comm. 199. By the
statute 12 & 13 Vict. c. 116, fiats were abolished.
Joint fiat. In English law, a fiat in bankruptcy,
issued against two or more trading partners.
FIAT JUSTITIA. Let justice be done. On a petition to the king for his warrant to bring a writ
of error in parliament, he writes on the top of the
petition, "Fiat justitia," and then the writ of error
is made out, etc. Jacob.
FIAT JUSTITIA, RUAT C(ELUM. Let right be
done, though the heavens should fall. Branch,
Princ. 161.
FIAT PROUT FLERI CONSUEVIT, (NIL TEMERE
NOVANDUM.) Let it be done as it hath used to
be done, (nothing must be rashly innovated.)
Jenk. Cent. 116, case 39; Branch, Princ.
FIAT UT PETITUR. Let it be done as it is asked.
A form of granting a petition.
FLAUNT. An order; command. See Fiat.
FICTIO. In Roman law, a fiction; an assumption
or supposition of the law.
"Fictio" in the old Roman law was properly a term of
pleading, and signified a false averment on the part of the
plaintiff which the defendant was not allowed to traverse;
as that the plaintiff was a Roman citizen, when in truth
he was a foreigner. The object of the fiction was to give
the court jurisdiction. Maine, Anc.Law, 25.
FICTIO CEDIT VERITATI. FICTIO JURIS NON
EST UBI VERITAS. Fiction yields to truth.
Where there is truth, fiction of law exists not 11
Co. 51.
FICTIO EST CONTRA VERITATEM, SED PRO
VERITATE HABETUR. Fiction is against the
truth, but it is to be esteemed truth.
FICTIO JURIS NON EST UBI VERITAS. Where
truth is, fiction of law does not exist.
FICTIO LEGIS INIQUE OPERATUR ALICUI
DAMNUM VEL INJURIAM. A legal fiction does
not properly work loss or injury. 2 Coke, 35; 3
Coke, 36; Broom, Max. 129; Gilb. 223. Fiction of
law is wrongful if it works loss or injury to anyone.
FICTIO LEGIS NEMINEM L/EDIT. A fiction of
law injures no one. 2 Rolle, 502: 3 Bl.Comm. 43;
Low v. Little, 17 Johns. N.Y. 348.
FICTION. An assumption or supposition of law
that something which is or may be false is true,
or that a state of facts exists which has never
really taken place. New Hampshire Strafford
Bank v. Cornell, 2 N.H. 324; Hibberd v. Smith,
67 Cal. 547, 4 P. 473, 56 Am.Rep. 726; Murphy v.
Murphy, 190 Iowa 874, 179 N.W. 530, 533. An assumption, for purposes of justice, of a fact that
does not or may not exist. Dodo v. Stocker, 74
Colo. 95, 219 P. 222, 223.
A rule of law which assumes as true, and will
not allow to be disproved, something which is
false, but not impossible. Best, Ev. 419.
These assumptions are of an innocent or even beneficial
character, and are made for the advancement of the ends
of justice. They secure this end chiefly by the extension of
procedure from cases to which it is applicable to other cases
to which it is not strictly applicable, the ground of inapplicability being some difference of an immaterial character. Brown.
Fictions are to be distinguished from presumptions of
law. By the former, something known to be false or unreal
is assumed as true ; by the latter, an inference is set up,
which may be and probably is true, but which, at any rate,
the law will not permit to be controverted. It may also
be said that a presumption is a rule of law prescribed for
the purpose of getting at a certain conclusion, though
arbitrary, where the subject is intrinsically liable to doubt
from the remoteness, discrepancy, or actual defect of
proofs.
Fictions are also to be distinguished from estoppels; an
estoppel being the rule by which a person is precluded
from asserting a fact by previous conduct inconsistent
therewith on his own part or the part of those under whom
he claims, or by an adjudication upon his rights which he
cannot be allowed to question.
Best distinguishes legal fictions from presumptions juris
et de jure, and divides them into three kinds,—affirmative
or positive fictions, negative fictions, and fictions by relation. Best, Pres. p. 27, 24.
FICTION OF LAW. Something known to be false
is assumed to be true. Ryan v. Motor Credit Co.,
130 N.J.Eq. 531, 23 A.2d 607, 621.
FICTITIOUS. Founded on a fiction; having the
character of a fiction; pretended; counterfeit.
People v. Carmona, 79 Cal.App. 159, 251 P. 315,
317; State v. Tinnin, 64 Utah 587, 232 P. 543, 545,
43 A.L.R. 46. Feigned, imaginary, not real, false,
not genuine, nonexistent. Bill alleging that
amount of mortgage sought to be canceled was
"fictitious" held to allege that mortgage was without consideration. Kinney v. Kinney, 230 Ala. 558,
161 So. 798, 800. Arbitrarily invented and set up,
to accomplish an ulterior object. West Virginia
Mortgage & Discount Corporation v. Newcomer,
101 W.Va. 292, 132 S.E. 748, 749.
FICTITIOUS ACTION. An action brought for
the sole purpose , of obtaining the opinion of the
court on a point of law, not for the settlement
of any actual controversy between the parties.
Smith v. Junction Ry. Co., 29 Ind. 551.
FICTITIOUS NAME. A counterfeit, feigned, or
pretended name taken by a person, differing in
some essential particular from his true name,
(consisting of Christian name and patronymic,)
751.
FICTITIOUS
with the implication that it is meant to deceive or
mislead. Pollard v. Fidelity F. Ins. Co., 1 S.D. 570,
47 N.W. 1060; Carlock v. Cagnacci, 88 Cal. 600,
26 P. 597; Mangan v. Schuylkill County, 273 Pa.
310, 116 A. 920, 921.
FIDE-JUSSIO. An act by which any one binds
himself as an additional security for another. This
giving security does not destroy the liability of the
principal, but adds to the security of the surety.
Vicat, Voc.Jur.; Hallifax, Annals, b. 2, c. 16, n. 10.
FICTITIOUS PAYEE. Negotiable instrument is
drawn to fictitious payee whenever payee named
in it has no right to it, and its maker does not intend that such payee shall take anything by it;
whether name of payee used by maker is that of
person living or dead or one who never existed is
immaterial. Goodyear Tire & Rubber Co. of California v. Wells Fargo Bank & Union Trust Co.,
1 Cal.App.2d 694, 37 P.2d 483.
FIDE-JUSSOR. In Roman law, a guarantor; one
who becomes responsible for the payment of another's debt, by a stipulation which binds him to
discharge it if the principal debtor fails to do so.
Mackeld.Rom.Law, § 452; 3 Bl.Comm. 108. He differs from a co-obligor in this, that the latter is
equally bound to a debtor, with his principal, while
the former is not liable till the principal has failed
to fulfil his engagement; Dig. 12, 4, 4; 16, 1, 13;
24, 3, 64; 38, 1, 37; 50, 17, 110; 6, 14, 20; Hall,
Pr. 33; Dunl.Adm.Pr. 300; Clerke, Prax. tit. 63.
"Fictitiousness" depends on the intention to pay,
rather than on the payee's existence. Norton v.
City Bank & Trust Co., C.C.A.Va., 294 F. 839, 844;
Mueller & Martin v. Liberty Ins. Bank, 187 Ky.
44, 218 S.W. 465, 466.
FICTITIOUS PERSON. A person, who, though
named as payee in a check has no right to it or its
proceeds because the drawer of it so intended.
Johnston v. Exchange Nat. Bank of Tampa, 152
Fla. 228, 9 So.2d 810, 811, 812.
FICTITIOUS PLAINTIFF. A person appearing
in the writ or record as the plaintiff in a suit, but
who in reality does not exist, or who is ignorant
of the suit and of the use of his name in it. It is
a contempt of court to sue in the name of a fictitious party. See 4 Bl.Comm. 134.
The obligation of the fide-jussor was an accessory contract; for, if the principal obligation was not previously
contracted, his engagement then took the name of mandate. Lec. Elem. § 872; Code Nap. 2012.
The sureties taken on the arrest of a defendant, in the
court of admiralty, were formerly denominated "fide jussors." 3 Bl.Comm. 108.
FIDE-PROMISSOR. See Fide-Jussor.
FIDELITAS. Fealty; fidelity. See Fealty.
FICTITIOUS PROMISE. See Promise.
FIDELITAS. DE NULLO TENEMENTO, QUOD
TENETUR AD TERMINUM, FIT HOMAGII; FIT
TAMEN INDE FIDELITATIS SACRAMENTUM.
Co.Litt. 676. Fealty. For no tenement which is
held for a term is there the oath of homage, but
there is the oath of fealty.
FIDE-COMMISSARY. A term derived from the
Latin "fidei-commissarius," and occasionally used
by writers on equity jurisprudence as a substitute
for the law French term "cestui, que trust," as
being more elegant and euphonious. See Brown
v. Brown, 83 Hun, 160, 31 N.Y.S. 650.
FIDELITY BOND. Contract of fidelity insurance.
Runcie v. Corn Exchange Bank Trust Co., Sup., 6
N.Y.S.2d 616, 620. A guaranty of personal honesty
of officer furnishing indemnity against his defalcation or negligence. Phillips v. Board of Education
of Pineville, 283 Ky. 173, 140 S.W.2d 819, 822.
FIDEI-COMMISSARIUS. In the civil law, this
term corresponds nearly to our "cestui que trust?'
It designates a person who has the real or beneficial interest in an estate or fund, the title or
administration of whieh is temporarily confided to
another. See Story, Eq.Jur. § 966; 1 Greenl.Cruise,
Dig. 295.
According to Du Cange, the term was sometimes used to denote the executor of a will.
FIDELITY INSURANCE. See Insurance.
FIDEI-COMMISSUM. In the civil law, a species
of trust; being a gift of property (usually by will)
to a person, accompanied by a request or direction
of the donor that the recipient will transfer the
property to another, the latter being a person not
capable of taking directly under the will or gift.
In re Courtin, 144 La. 971, 81 So. 457, 459; Succession of Reilly, 136 La. 347, 67 So. 27, 33; Gortario v. Cantu, 7 Tex. 44.
FIDE-JUBERE. In the civil law, to order a thing
upon one's faith; to pledge one's self; to become
surety for another. Fide-jubes? Fide-jubeo: Do
you pledge yourself ? I do pledge myself. Inst.
3, 16, L One of the forms of stipulation.
FIDEM MENTIRI. Lat. To betray faith or fealty. A term used in feudal and old English law of
a feudatory or feudal tenant who does not keep
that fealty which he has sworn to the lord. Leg.
Hen. L c. 53.
FIDES. Lat. Faith; honesty; confidence; trust;
veracity; honor. Occurring in the phrases "bona
fides" (good faith), "mala fides" (bad faith), and
"uberrima fides," (the utmost or most abundant
good faith.)
FIDES EST OBLIGATIO CONSCEENTLE ALICUJUS AD INTENTIONEM ALTERIUS. Bacon. A
trust is an obligation of conscience of one to the
will of another.
FIDES FACTA. Among the Franks and Lombards undertakings were guaranteed by "making
one's faith"—fides facta. This was symbolized by
such formal acts as the giving of a rod; in suretyship giving the "festuca" or "vadium." 2
Holdsw.Hist.E.L. 73.
752
FIDUCIARY
FIDES SERVANDA EST. Faith must be observed. An agent must not violate the confidence
reposed in him. Story, Ag. § 192; Coolidge v.
Brigham, 1 Metc., Mass., 551.
FIDES SERVANDA EST; SIMPLICITAS JURIS
GENTIUM PRIEVALEAT. Faith must be kept;
the simplicity of the law of nations must prevail.
A rule applied to bills of exchange as a sort of
sacred instruments. 3 Burrows, 1672; Story, Bills,
§ 15.
FU)UCIA. In Roman law, an early form of mortgage or pledge, in which both the title and possession of the property were passed to the creditor by
a formal act of sale, (properly with the solemnities of the transaction known as mancipatio,) there
being at the same time an express or implied
agreement on the part of the creditor to reconvey
the property by a similar act of sale provided the
debt was , duly paid; but on default of payment,
the property became absolutely vested in the creditor without foreclosure and without any right of
redemption.
In course of time, this form of security gave place to that
known as hypotheca, while the contemporary contract of
*gnus or pawn underwent a corresponding development.
See Mackeld.Rom.Law, § 334; Tomk. & J. Mod.Rom.Law,
182; Hadley, Rom.Law, 201-203; Pothier, Pand. tit.
"Fiducia."
FIDUCIAL. An adjective having the same meaning as "fiduciary;" as, in the phrase "public or
fiducial office." Ky.St. § 3752; Moss v. Rowlett,
112 Ky. 121, 65 S.W. 153.
FIDUCIARIUS HIERES. See Fiduciary Heir.
FIDUCIARIUS TUTOR. In Roman law, the elder brother of an emancipated pupillus, whose father had died leaving him still under fourteen
years of age.
FIDUCIARY. The term is derived from the Roman law, and means (as a noun) a person holding
the character of a trustee, or a character analogous to that of a trustee, in respect to the trust
and confidence involved in it and the scrupulous
good faith and candor which it requires. Svanoe
v. Jurgens, 144 Ill. 507, 33 N.E. 955; Stoll v. King,
8 How.Prac.,N.Y., 299. A person having duty, created by his undertaking, to act primarily for another's benefit in matters connected with such undertaking. Haluka v. Baker, 66 Ohio App. 308, 34
N.E.2d 68, 70. As an adjective it means of the
nature of a trust; having the characteristics of
a trust; analogous to a trust; relating to or
founded upon a trust or confidence.
FIDUCIARY CAPACITY. One is said to act in
a "fiduciary capacity" or to receive money or contract a debt in a "fiduciary capacity," when the
business which he transacts, or the money or
property which he handles, is not his own or for
his own benefit, but for the benefit of another person, as to whom he stands in a relation implying
and necessitating great confidence and trust on
the one part and a high degree of good faith on
the other part. The term is not restricted to technical or express trusts, but includes also such ofBlack's Law Dictionary Revised 4th Ed.-48
fices or relations as those of an attorney at law, a
guardian, executor, or broker, a director of a
corporation, and a public officer. Templeton v.
Bockler, 73 Or. 494, 144 P. 405, 409; Madison Tp.
v. Dunkle, 114 Ind. 262, 16 N.E. 593. As used in
the Bankruptcy Act, § 17, subd. 4, 11 U.S.C.A. §
35, however, the term imports a technical trust,
actually and expressly constituted, and not such
merely as the law implies, and has no application
to debts or obligations merely because they were
created under circumstances in which trust or
confidence in the popular sense of those terms was
reposed in debtor. Culp v. Robey, Tex.Civ.App.,
294 S.W. 647, 651; American Agricultural Chemical Co. v. Berry, 110 Me. 528, 87 A. 218, 45 L.R.A.,
N.S., 1106, Ann.Cas.1915A, 1293.
FIDUCIARY CONTRACT. An agreement by
which a person delivers a thing to another on the
condition that he will restore it to him. Cicero,
de Ofjle, lib. 3, cap. 17; Lee. du Dr.Civ.Rom. § 237.
See Chapman v. Forsyth, 2 How., U.S., 202, 11 L.
Ed. 236; Fisk v. Sarber, 6 W. & S., Pa., 18; McGinn v. Shaeffer, 7 Watts, Pa., 415.
FIDUCIARY DEBT. A debt founded on or arising from some confidence or trust as distinguished
from a "debt" founded simply on contract. Montgomery v. Phillips Petroleum Co., Tex.Civ.App.,
49 S.W.2d 967, 973.
FIDUCIARY DEBTORS. Only public officers and
trustees, not agents, factors, commission men, and
the like, within the meaning of Bankruptcy Act,
§ 14, subd. 4, 11 U.S.C.A. § 32. Keefauver v. He y
-enor,163Ap.Div548NYS3,5.
FIDUCIARY HEIR. The
Roman laws called a
fiduciary heir the person who was instituted heir,
and who was charged to deliver the succession to
a person designated by the testament. Merlin,
Rëpert. But Pothier, Pand. vol. 22, says that fiduciarius hceres properly signifies the person to
whom a testator has sold his inheritance under
the condition that he should sell it to another.
FIDUCIARY OR CONFIDENTIAL RELATION.
A very broad term embracing both technical fiduciary relations and those informal relations which
exist wherever one man trusts in or relies upon
another. State v. Gautier, 108 Fla. 390, 147 So.
240, 242. One founded on trust or confidence reposed by one person in the integrity and fidelity
of another. Kerrigan v. O'Meara, 71 Mont. 1, 227
P. 819, 821.
The origin of the confidence and the source of the
influence are immaterial. Quinn v. Phipps, 93 Fla. 805, 113
So. 419, 420, 54 A.L.R. 1173. The relations and duties
involved need not be legal but may be moral, social, domestic, or merely personal. Trustees of Jesse Parker Williams
Hospital v. Nisbet, 191 Ga. 821, 14 S.E.2d 64, 76. See also,
Fiduciary Relation.
FIDUCIARY RELATION. An expression including both technical fiduciary relations and those
informal relations which exist whenever one man
trusts and relies upon another. Peckham v. Johnson, Tex.Civ.App., 98 S.W.2d 408, 416. It exists
where there is special confidence reposed in onewho in equity and good conscience is bound to-
753
FIDUCIARY
act in good faith and with due regard to interests
of one reposing the confidence. Neagle v. McMullen, 334 Ill. 168, 165 N.E. 605, 608. A relation
subsisting between two persons in regard to a
business, contract, or piece of property, or in regard to the general business or estate of one of
them, of such a character that each must repose
trust and confidence in the other and must exercise a corresponding degree of fairness and good
faith.
Out of such a relation, the law raises the rule that neither party may exert influence or pressure upon the other,
take selfish advantage of his trust, or deal with the subjectmatter of the trust in such a way as to benefit himself or
p
rejudice the other except in the exercise of the utmost
good faith and with the full knowledge and consent of that
other, business shrewdness, hard bargaining, and astuteness to take advantage of the forgetfulness or negligence
of another being totally prohibited as between persons
standing in such a relation to each other. Examples of
fiduciary relations are those existing between attorney and
client, guardian and ward, principal and agent, executor
and heir, trustee and cestui que trust, landlord and tenant,
etc. Robins v. Hope, 57 Cal. 497; Thomas v. Whitney, 186
Ill. 225, 57 N.E. 808; Central Nat. Bank v. Connecticut Mut.
L. Ins. Co., 104 U.S. 68, 26 L.Ed. 693. The relation need
not be legal, but may be moral, social, domestic, or merely
personal. Miranovitz v. Gee, 163 Wis. 246, 157 N.W. 790,
792; Higgins v. Chicago Title & Trust Co., 312 Ill. 11, 143
N.E. 482, 484. It is one in which, if a wrong arise, the
same remedy exists against the wrongdoer on behalf of the
principal as would exist against a trustee on behalf of a
cestui que trust. Smith v. Smith, 222 Mass. 102, 109 N.E.
830, 832. Sometimes confidential and fiduciary relations are
regarded as synonymous; In re Cover's Estate, 188 Cal.
133, 204 P. 583, 588; but on the other hand, a technical
distinction may be taken between a "fiducial relation"
which is more correctly applicable to legal relationships
between parties, such as guardian and ward, administrator and heirs, and other similar relationships, and a "confidential relation" which includes the legal relationships,
and also every other relationship wherein confidence is
rightfully reposed and is exercised. Roberts v. Parsons,
195 Ky. 274, 242 S.W. 594, 596.
FIEF. A fee, feod, or feud.
FIEF D'HAUBERT (or D'HAUBERK). Fr. In
Norman feudal law, a fief or fee held by the tenure of knight-service; a knight's fee. 2 Bl.Comm.
62. A fee held on the military tenure of appearing fully armed on the ban and arriêre-ban. Feudum hauberticum. Spelman; Calvinus, Lex.; Du
Cange.
FIEF-TENANT. In old English law, the holder
of a fief or fee; a feeholder or freeholder.
FIEL. In Spanish law, a sequestrator; a person
in whose hands a thing in dispute is judicially deposited; a receiver. Las Partidas, pt. 3, tit. 9,
1. 1.
FIELD. A cultivated tract of land; State v.
Mack, 92 Vt. 103, 102 A. 58, 59; but not a oneacre lot used for cultivating vegetables; Simons
v. Lovell, 7 Heisk., Tenn., 510. This term might
well be considered as definite and certain a description as "close," and might be used in law;
but it is not a usual description in legal proceedings. 1 Chit.Gen.Pr, 160.
Armies away from the home base on an operational, hostile mission are in the "field". In re
Di Bartolo, D,C.N.Y., 50 F.Supp. 929, 933.
FIELD-ALE, or FILKDALE. An ancient custom
in England, by which officers of the forest and
bailiffs of hundreds had the right to compel the
hundred to furnish them with ale. Tomlin&
FIELD BOOK. A description of the courses and
distances of the lines, and of the corners of the
lots of the town as they were surveyed, and as
they appear by number and division on the town
plan. Neill v. Ward, 103 Vt. 117, 153 A. 219, 225.
FIELD HOSPITAL. See Hospital.
FIELD NOTES. A description of a survey. Outlaw v. Gulf Oil Corporation, Tex.Civ.App., 137 S.
W.2d 787, 794.
FIELD REEVE. An officer elected, in England,
by the owners of a regulated pasture to keep in
order the fences, ditches, etc., on the land, to regulate the times during which animals are to be admitted to the pasture, and generally to maintain
and manage the pasture subject to the instructions
of the owners. (General Inclosure Act, 1845, §
118.) Sweet.
FIELD VISION. The general vision used in
catching in sight, following and locating objects;
—distinguished from "binocular vision" (q. v.).
Turpin v. St. Regis Paper Co., 199 App.Div. 64,
192 N.Y.S. 85, 87.
FIELD WORK. Work in the field, specifically
the task of gathering scientific data from the field.
Includes the sphere of practical operation, as of an
organization or enterprise; also, the place or territory where direct contacts, as with a clientele
may be made or first-hand knowledge may be gained; sphere of action or place of contest, either
literally or figuratively; hence, any scene of operations or opportunity for activity. State ex rel.
McPherson v. Snell, 168 Or. 153, 121 P.2d 930, 937,
FIELDAD, In Spanish law, sequestration. This
is allowed in six cases by the Spanish law where
the title to property is in dispute. Las Partidas,
pt. 3, tit. 3, 1. 1.
FIERDING COURTS. Ancient Gothic courts of
an inferior jurisdiction, so called because four
were instituted within every inferior district or
hundred. 3 Bl.Comm. 34; 3 Steph.Com. 393;
Stiernhook, De Jure Goth. 1, c. 2.
FIERI. Lat. To be made; to be done. See In
Fieri,
FIERI FACIAS. Means that you cause to be
made. In practice, a writ of execution commanding the sheriff to levy and make the amount of a
judgment from the goods and chattels of the judgment debtor.
FIERI FACIAS DE BONIS ECCLESIASTIC'S.
When a sheriff to a common fi, fa. returns nulla
bona, and that the defendant is a beneficed clerk,
not having any lay fee, a plaintiff may issue a fi.
fa. de bonis ecclesiasticis, addressed to the bishop
of the diocese or to the archbishop, (during the
vacancy of the bishop's see,) commanding him to
754
FILE
make of the ecclesiastical goods and chattels belonging to the defendant within his diocese the
sum therein mentioned. 2 Chit.Archb.Pr. (12th
Ed.) 1062.
FIERI FACIAS DE BONIS TESTATORIS. The
writ issued on an ordinary judgment against an
executor when sued for a debt due by his testator.
If the sheriff returns to this writ nulla bona, and
a devastavit, (q. v.,) the plaintiff may sue out a
fieri facias de bonis propriis, under which the
goods of the executor himself are seized. Sweet.
FIERI FECI. Means I have caused to be made.
In practice, the return made by a sheriff or other
officer to a writ of fieri fackts, where he has collected the whole, or a part, of the sum directed to
be levied. 2 Tidd, Pr. 1018. The return, as actually made, is expressed by the word "Satisfied"
indorsed on the writ.
FIERI NON DEBET, (DEBUIT,) SED FACTUM
VALET. It ought not to be done, but [if] done,
it is valid. Shep. Touch. 6; 5 Coke, 39; T.Raym.
58; 1 Strange, 526. A maxim frequently applied
in practice. Nichols v. Ketcham, 19 Johns., N.Y.,
84, 92.
The
also by Cowell "forisfactura pugnce."
amount was one hundred and twenty shillings.
Cowell.
A payment to a lord possessing soc over a place
where a wrong was done. 2 Holdsw. Hist.E.L. 35.
FIGURES. Artificial representations of a form,
as in sculpture, drawing, or painting, especially
the human body represented by art of any kind.
People v. Eastman, 89 Misc. 596, 152 N.Y.S. 314,
317.
Numerals. They are either Roman, made with
letters of the alphabet:
for example,
MDCCLXXVI; or they are Arabic, as follows:
1776.
FILACER. An officer of the superior courts at
Westminster, whose duty it was to file the writs
on which he made process. There were fourteen
filacers, and it was their duty to make out all
original process. Cowell; Blount; Jacob L.Dict.
It is used in 8 Mod. 284. The office was abolished
in 1837.
FILARE. In old English practice, to file.
Townsh.Pl. 67.
FIFTEENTHS. In English law, this was originally a tax or tribute, levied at intervals by act of
parliament, consisting of one-fifteenth of all the
movable property of the subject or personalty in
every city, township, and borough.
Under Edward III., the taxable property was assessed,
and the value of its fifteenth part (then about £29,000) was
recorded in the exchequer, whence the tax, levied on that
valuation, continued to be called a "fifteenth," although as
the wealth of the kingdom increased, the name ceased to
be an accurate designation of the proportion of the tax to
the value taxed. See 1 B1.Comm. 309; Co. 2d Inst. 77; 1
Poll. & Maitl. 604; Cowell.
FIFTH DEGREE OF KINSHIP. The degree of
kinship between a deceased intestate and the children of decedent's first cousin, sometimes designated as "first cousins once removed", was in the
"fifth degree". Simonton v. Edmunds, 202 S.C.
397, 25 S.E.2d 284, 285.
FIFTY DECISIONS. Ordinances of Justinian
(529-532) upon the authority of which all moot
points were settled in the preparation of the second edition of the Code. Taylor, Science of Jurispr. 144.
FIGHT. "Fight" means combat or battle, as hostile encounter or engagement between opposing
forces, suggesting primarily the notion of a brawl
or unpremeditated encounter, or that of a pugilistic combat. Gitlow v. Kiely, D.C.N.Y., 44 F.2d
227, 232.
An encounter, with blows or other personal violence,
between two persons. Carpenter v. People, 31 Colo. 284, 72
P. 1072; Coles v. New York Casualty Co., 87 App. Div. 41,
83 N.Y.S. 1063. The term does not necessarily imply that
both parties, should give and take blows. It is sufficient
that they,voluntarily put their bodies in position with that
intent; State v. Gladden, 73 N.C. 155; Tate v. State, 46 Ga.
148.
FIGHTWITE. Sax. A mulct or fine for making
a quarrel to the disturbance of the peace. Called
FILCHING. "Filching" means to steal money,
commonly of little value, secretly or underhandedly. Peck v. Bez, W.Va., 40 S.E.2d 1, 10.
FILE, n. A record of the court. Milton v. United States, C.C.A.La., 105 F.2d 253, 255. A thread,
string, or wire upon which writs and other exhibits in courts and offices are fastened or filed
for the more safe-keeping and ready turning to
the same. Spelman; Cowell; Tomlins. Papers
put together and tied in bundles. A paper is said
also to be filed when it is delivered to the proper
officer, and by him received to be kept on file.
13 Vin.Abr. 211; 1 Litt. 113; 1 Hawk.P.C. 7, 207;
Beebe v. Morrell, 76 Mich. 114, 42 N.W. 1119, 15
Am.St.Rep. 288. But, in general, "file," or "the
files," is used loosely to denote the official custody
of the court or the place in the offices of a court
where the records and papers are kept. The "file"
in a cause includes original subpoenas and all papers belonging thereto. Jackson v. Mobley, 157
Ala. 408, 47 So. 590.
FILE, v. To lay away papers for presentation
and reference. Murphy v. Burlington Overall Co.,
225 Mo.App. 866, 34 S.W.2d 1035, 1037. In practice, to put upon the files, or deposit in the custody or among the records of a court. To deliver
an instrument or other paper to the proper officer for the purpose of being kept on file by him
in the proper place. Gallagher v. Linwood, 30
N.M. 211, 231 P. 627, 629, 37 A.L.R. 664; Dillon v.
Superior Court of Nevada County, 24 Cal.App. 760,
142 P. 503, 505; Pendrey v. Brennan, 31 Idaho, 54,
169 P. 174, 175. It carries the idea of permanent
preservation as a public record. In re Gubelman,
C.C.A., 10 F.2d 926, 929.
The term "filed" is used to denote the paper placed with
the clerk, and assigned by law to his official keeping. Ex
parte Leifeste, 127 Tex.Cr.R. 445, 77 S.W.2d 675, 676.
"To file" a paper, on the part of a party, is to place it
in the official custody of the clerk. "To flle," on the part
755
FILE
of the clerk, is to indorse upon the paper the date of its
reception, and retain it in his office, subject to inspection
by whomsoever It may concern. Holman v. Chevaillier,.14
Tex. 339.
FILIUS FAMILIAS. In the civil law, the son of
a family; an unemancipated son. Inst. 2, 12, pr.;
Id. 4, 5, 2; Story, Confl.Laws, § 61.
"Filing a bill" in equity is an equivalent expression to "commencing a suit."
FILIUS IN UTERO MATRIS EST PARS VISCERUM MATRIS. 7 Coke, 8. A son in the mother's womb is part of the mother's vitals.
FILE WRAPPER ESTOPPEL. The doctrine depends upon the fact that, when an applicant has
accepted the rejection of a broad claim he may
not later assert that another claim, deliberately
restricted to secure its allowance, is its equivalent. Tampax, Inc. v. Personal Products Corporation, C.C.A.N.Y., 123 F.2d 722, 723.
FILED FOR RECORD. Left with recorder or
registrar for recording. In re Grodzins, D.C.Cal.,
27 F.Supp. 521, 523, 524.
F1LEINJAID. Brit. A name given to villeins in
the laws of Hoel Dda. Barring. Obs.St. 302.
FILIATE. To fix a bastard child on some one, as
its father. To declare whose child it is. 2 W.B1.
1017.
FILIUS MULIERATUS. In old English law, the
eldest legitimate son of a woman, who previously
had an illegitimate son by his father. Glanv. lib.
7, c. 1. Otherwise called "mulier." 2 Bl.Comm.
248.
FILIUS NULLIUS. An illegitimate child; son
of nobody. In re Ellis' Estate, 225 Iowa 1279, 282
N.W. 758, 762, 120 A.L.R. 975.
FILIUS POPULI, A son of the people. In re
Clark's Estate, 228 Iowa 75, 290 N.W. 13, 29. Natural child.
FILL. To make full; to complete; to satisfy or
fulfill; to possess and perform the duties of; to
occupy the whole capacity or extent of, so as to
leave no space vacant.
FILIATIO NON POTEST PROBARI. Co.Litt.
126. Filiation cannot be proved; that is, the husband is presumed to be the father of a child born
during coverture. But see 7 & 8 Vict. c. 101.
FILIATION. The relation of parent and child,
but does not import legitimacy, although often a
step to that end. Rodrigues v. Rodrigues, 286
Mass. 77, 190 N.E. 20, 22. Correlative to "paternity."
The judicial assignment of an illegitimate child
to a designated man as its father.
In the civil law, the descent of son or daughter,
with regard to his or her father, mother, and their
ancestors.
FILIATION PROCEEDING. A special statutory
proceeding, criminal in form, but in the nature of
a civil action to enforce a civil obligation or duty
specifically for the purpose of establishing parentage and the putative father's duty to support
his illegitimate child. State v. Morrow, 158 Or.
412, 75 P.2d 737, 738, 739, 744.
FILICETUM. In old English law, a ferny or
bracky ground; a place where fern grows. Co.
Lit. 4b; Shep.Touch. 95.
FILIOLUS (or FILIOUS). In old records, a godson. Spelman.
FILIUS. Lat. A son; a child.
As distinguished from heir filius is a term of nature,
hceres a term of law. 1 Powell, Dev. 311. In the civil law
the term was used to denote a child generally. Calvinus,
Lex.; Vicat, Voc.Jur.
A distinction was sometimes made, in the civil law,
between "filii" and "liberi;" the latter word including
grandchildren, (nepotes,) the former not. Inst. 1, 14, 5.
But, according to Paulus and Julianus, they were of
equally extensive import. Dig. 50, 16, 84; Id. 50, 16, 201.
FILIUS EST NOMEN NATURE, SED ILERES
NOMEN JURIS. 1 Sid. 193. 1 Pow.Dev. 311.
Son is a name of nature, but heir is a name of law.
Word "fill" in agreement to "take and fill" a certain
number of shares, amounts to a promise to pay assessments. Bangor Bridge Co. v. McMahon, 10 Me. 478.
To fill a prescription is to furnish, prepare, and combine
the requisite materials in due proportion as prescribed.
Ray v. Burbank, 61 Ga. 505, 34 Am.Rep. 103.
To "fill" embroidery is to stuff out the figure, which is
the ornamentation, by covering the stuffing with the silk,
cotton, or other threads used by the embroiderer. G. Reis
& Bro. v. Reform Initial Co., C.C.A.N.Y., 266 F. 219.
The term "fill," used in relation to shipments of live
stock, means feeding and watering stock just prior to sale
so as to increase their weight and thus enhance their value.
Texas & P. Ry. Co. v. West Bros., Tex.Com.App., 207 S.W.
918, 922.
FILLED MILK. Milk to which has been added fat
or oil other than milk fat so that the resulting
product is in imitation or semblance of milk,
cream, or skim milk. State v. Hershman, 346
Mo. 892, 143 S.W.2d 1025, 1026.
FILLING CHAMBER. A place in which a bottle
mouth is held so as to cut off communication with
open air while the bottle is being filled with gaseous liquids to be sealed in it under pressure.
Crown Cork & Seal Co. of Baltimore City v. Carper Automatic Bottling Mach. Co. of Baltimore
City, D.C.Md., 229 F. 748, 750.
FILLING STATION. A building or structure
where motor vehicle fuel is stored for sale to the
public. Hanes v. Carolina Cadillac Co., 176 N.C.
350, 97 S.E. 162.
FILLY. A young mare; a female colt. An indictment charging the theft of a "filly" is not
sustained by proof of the larceny of a "mare."
Lunsford v. State, 1 Tex.App. 448, 28 Am.Rep. 414.
FILTHY. Under Cr.Code, § 211, 18 U.S.C.A. §
1461, an unmailable filthy letter is morally foul,
polluted, nasty. United States v. Davidson, D.C.
N.Y., 244 F. 523, 526. Dirty, vulgar, indecent, offensive to the moral sense, morally depraving, de-
756
FINAL
basing. Tyomies Pub. Co. v. United States, C.C.A.
Mich., 211 F. 385, 390.
In Federal Food, Drug, and Cosmetic Act, §
402(a) (3), 21 U.S.C.A. § 342(a) (3), word "filthy"
is used in its usual and ordinary meaning, and is
not to be confined to any scientific or medical
definition. U. S. v. Lazere, D.C.Iowa, 56 F.Supp.
730, 732.
FILUM. Lat. In old practice, a file, i. e., a
thread or wire on which papers were strung, that
being the ancient method of filing.
An imaginary thread or line passing through
the middle of a stream or road, as in the titles
following.
FILUM AQUAE. A thread of water; a line of
water; the middle line of a stream of water, supposed to divide it into two equal parts, and constituting in many cases the boundary between the
riparian proprietors on each side. Ingraham v.
Wilkinson, 4 Pick., Mass., 273, 16 Am.Dec. 342.
Medium alum is sometimes used with no additional meaning. Cf. Thalweg.
FILUM FOREST1E. The border of the forest.
2 Bla.Comm. 419; 4 Inst. 303; Manw. Purlieu.
FILUM WE. The thread or middle line of a
road. The boundary between the owners of the
land on each side of a road. 2 Smith, Lead.Cas.
Am.Ed., 98, note. City of Chicago v. Rumsey, 87
Ill. 348; Cox v. Freedley, 33 Pa. 124, 75 Am.Dec.
584.
FIN. Fr. An end, or limit; a limitation, or period of limitation.
FIN DE NON RECEVOIR. In French law, an exception or plea founded on law, which, without
entering into the merits of the action, shows that
the plaintiff has no right to bring it, either because
the time during which it ought to have been
brought has elapsed, which is called "prescription," or that there has been a compromise, accord
and satisfaction, or any other cause which has destroyed the right of action which once subsisted.
Poth.Proc. Civile, pt. 1, c. 2, § 2, art. 2; Story,
Confl.Laws, § 580.
FINAL. Last; conclusive. Standard Oil Co. (New
Jersey) v. U. S., Ct.C1., 10 F.Supp. 550, 560. Decisive; definitive. State ex rel. Grodin v. Barns,
119 Fla. 405, 161 So. 568, 574. Terminating; completed. In its use in jurisprudence, this word is
generally contrasted with "interlocutory." Johnson v. New York, 48 Hun, 620, 1 N.Y.S. 254; Garrison v. Dougherty, 18 S.C. 488; U. S. v. Broude,
D.C.Minn., 299 F. 332, 333.
As to final "Costs," "Decree," "Judgment," "Inlunction," "Order," "Process," "Recovery," "Sentence," and "Settlement," see those titles.
FINAL ARCHITECT'S CERTIFICATE. One
which is issued after a job is done and which finally determines the rights of the parties as to
money and disputes. Johnson v. Hogg, 202 Ill.
App. 253, 255; Hunt v. Owen Bldg. & Inv. Co.,
Mo.App., 219 S.W. 138, 140.
FINAL DECISION. One which leaves nothing
open to further dispute and which sets at rest
cause of action between parties. Hammond v.
Boston Terminal Co., 295 Mass. 566, 4 N.E.2d 328.
One which settles rights of parties respecting the
subject-matter of the suit and which concludes
them until it is reversed or set aside. Orwig v.
Conley, 322 Ill. 291, 153 N.E. 371, 372; Pawtucket
Cabinet & Builders' Finish Co. v. People's Excursion Line, 45 R.I. 426, 123 A. 354. See, however,
Wyman v. Hageman, 318 Ill. 64, 148 N.E. 852, 855.
The filing of signed findings and conclusions and
order for judgment. Crane v. First Nat. Bank, 26
N.D. 268, 144 N.W. 96, 97. Synonymous with final
judgment or decree. In re Tiffany, 252 U.S. 32,
40 S.Ct. 239, 240, 64 L.Ed. 443. Also, a decision from which no appeal or writ of error can be
taken. Moore v. Mayfield, 47 Ill. 167; 6 El. &
Bl. 408; U. S. v. Tod, C.C.A.N.Y., 1 F.2d 246, 251;
Blanding v. Sayles, 23 R.I. 226, 49 A. 992.
FINAL DETERMINATION. Final judgment is
synonymous. The final settling of the rights of
the parties to the action beyond all appeal. Quarture .v. Allegheny County, 141 Pa.Super. 356, 14
A.2d 575, 578. See Judgment.
FINAL DISPOSITION. Such a conclusive determination of the subject-matter embraced in a
submission to arbitrators, that after the award
is made nothing further remains to fix the rights
and obligations of the parties, and no further controversy or litigation can arise thereon. Quarture
v. Allegheny County, 141 Pa.Super. 356, 14 A.2d
575, 578. It is such an award that the party
against whom it is made can perform or pay it
without any further ascertainment of rights or
duties. Colcord v. Fletcher, 50 Me. 401.
FINAL HEARING. Describes that stage of proceedings relating to the determination of a suit
upon its merits as distinguished from those of
preliminary questions. Menard v. Bowman Dairy
Co., 296 Ill.App. 323, 15 N.E.2d 1014, 1015. It may
also be used with reference to a dismissal on the
motion of plaintiff. Christensen v. General Electric Co., D.C.N.Y., 248 F. 284, 286.
FINAL PASSAGE. The vote on a passage of a
bill or resolution in either house of the legislature
after it has received the prescribed number of
readings and has en subjected to such action as
is required by the fundamental law governing the
body or its own rule. State v. Buckley, 54 Ala.
613. The actual final vote necessary to a bill becoming a law, regardless of parliamentary fictions.
Roane Iron Co. v. Francis, 130 Tenn. 694, 172 S.
W. 816.
FINAL RECEIVER'S RECEIPT. An acknowledgment by the government that it has received
full payment for public land, that it holds the legal title in trust for the entryman, and will in due
course issue to him a patent. Bovey-Shute Lumber Co. v. Erickson, 41 N.D. 365, 170 N.W. 628, 630.
FINAL SETTLEMENT. In probate proceeding, a
direct adjudication that the estate is fully administered; that the administrator has completely
757
FINAL
executed his trust and has accounted for all moneys received as the law requires. In re Braun's
Estate, 140 Kan. 188, 34 P.2d 94, 95.
The final determination of amount due contractor by proper governmental authority. Consolidated Indemnity & Insurance Co. v. W. A. Smoot
& Co., C.C.A.Va., 57 F.2d 995, 996.
A formal determination by commissioners' court,
in cases involving contract with county, of amount
finally due under contract. Austin Bros. Bridge
Co. v. Love, Tex.Com.App., 34 S.W.2d 574, 577.
FINAL SUBMISSION. Exists when nothing remains to be done to render submission complete.
Thompson v. Schalk, 228 Iowa 705, 292 N.W. 851,
852.
Where the whole case, both requested instructions and
evidence, is submitted to the court for its ruling and the
court takes the case under advisement, there is a "final
submission" of the entire case. Piatt v. Heim & Overly
Realty Co., 342 Mo. 772, 117 S.W.2d 327, 329.
FINAL TRIAL. Under a statute such trial in the
court having original trial jurisdiction as is the
basis of entry of judgment finally disposing of action in that court; the term does not apply to proceedings in the appellate court. Wynne v. Smith,
23 Ga.App. 330, 98 S.E. 271, 272.
deal within the required time. Hersh v. Garau, 218
Cal. 460, 23 P.2d 1022.
FINANCIER. A person employed in the economical management and application of public money;
one skilled in matters appertaining to the judicious management of money affairs.
FIND. To come upon by seeking or by effort.
Shields v. Shields, 115 Mont. 146, 139 P.2d 528, 530.
To discover; to determine; to ascertain and declare.
To announce a conclusion, as the result of judicial investigation, upon a disputed fact or state of facts; as a jury
are said to, "find a will." To determine a controversy in
favor of one of the parties; as a jury "find for the plaintiff." State v. Bulkeley, 61 Conn. 287, 23 A. 186, 14 L.R.A.
657. The term usually means to ascertain by judicial
inquiry, State ex inf. of Barker v. Crandall, 269 Mo. 44, 190
S.W. 889, 893; in contradistinction to acts by a clerk of
court, State v. Halaby, 148 La. 1, 86 So. 561, 563; or by
administrative boards, Union Pac. R. Co. v. Board of
Com'rs of Weld County, Colo., C.C.A.Colo., 217 F. 540, 541.
But the term does not always require a judicial or official
finding. City of Chicago v. Atwood, 269 Ill. 624, 110 N.E.
127, 128.
FINDER. One who discovers and takes possession of another's personal property, which was
then lost. Kincaid v. Eaton, 98 Mass. 139, 93 Am.
Dec. 142.
FINALIS CONCORDIA. A final or conclusive
agreement.
A searcher employed to discover goods imported
or exported without paying custom. Jacob.
In the process of "levying a fine," this was a final agreement entered by the litigating parties upon the record, by
permission of court, settling the title to the land, and which
was binding upon them like any judgment of the court.
1 Washb.Real Prop. *70.
FINDER'S FEE. A sum of money paid by a
banker to one who brings to him a deal out of
which he makes money. Cray, McFawn & Co. v.
Hegarty, Conroy & Co., D.C.N.Y., 27 F.Supp. 93, 97,
98, 100, 101.
FINANCE CHARGE. The consideration for privilege of deferring payment of purchase price. Cowart v. Lang, 252 App.Div. 720, 298 N.Y.S. 875.
FINANCES. Money resources generally. The
state of the finances of an individual or corporation, being his condition in a monetary point of
view. The cash he has on hand, and that which
he expects to receive, as compared with the engagements he has made to pay.
The public wealth of a state or government, considered
either statically (as the property or money which a state
now owns) or dynamically, (as its income, revenue, or
public resources.) Monetary affairs, funds in a treasury or
accruing to it, etc. City of Newburgh v. Dickey, 150 N.Y.S.
175, 177, 164 App.Div. 791.
FINANCIAL. Fiscal. Armstrong v. State Bank
of Mayville, 177 App.Div. 265, 165 N.Y.S. 5, 8.
Dealing in money. Crown Finance Corporation v.
McColgan, 23 Cal.2d 280, 144 P.2d 331, 333.
FINANCIAL RESPONSIBILITY. Obligation to
pay to a third party. Christensen v. Hennepin
Transp. Co., 215 Minn. 394, 10 N.W.2d 406, 415, 147
A.L.R. 945.
FINANCIAL WORTH. The value of one's property less what he owes, or the value of his resources less his liabilities. Boney v. Central Mut.
Ins. Co. of Chicago, 213 N.C. 470, 196 S.E. 837, 841.
FINANCIALLY ABLE. Means purchaser must be
able to command the necessary funds to close the
FINDING. The result of the deliberations of a
jury or a court. Denslow v. Moore, 2 Day (Conn.)
12; U. S. v. Moller, 16 Blatchf. 65, Fed.Cas.No.
15,794. A decision upon a question of fact reached
as the result of a judicial examination or investigation by a court, jury, referee, coroner, etc. Benton v. Roberts, 53 Ga.App. 121, 185 S.E. 292, 294.
A recital of the facts as found. Crighton v. Jacobs,
100 Conn. 281, 123 A. 437, 438. The word commonly applies to the result reached by a judge, Maeder
Steel Products Co. v. Zanello, 109 Or. 562, 220 P.
155, 158; it being sometimes, however, as a matter
of interpretation, treated as a ruling of law, Garden Cemetery Corporation v. Baker, 218 Mass. 339,
105 N.E. 1070, 1072, Ann.Cas.1916B, 75.
FINDING OF FACT. A determination of a fact
by the court, averred by one party and denied by
the other, and founded on evidence in case. C.I.T.
Corp. v. Elliott, 66 Idaho 384, 159 P.2d 891, 897.
A conclusion by way of reasonable inference from
the evidence. Barker v. Narragansett Racing
Ass'n, 65 R.I. 489, 16 A.2d 495, 497. Also the answer of the jury to a specific interrogatory propounded to them as to the existence or non-existence of a fact in issue. Miles v. McCallan, 1 Ariz.
491, 3 P. 610; Murphy v. Bennett, 68 Cal. 528, 9
P. 738.
The term is not applicable, with special reference to
review on appeal, to a mere conclusion that the evidence
is insufficient to authorize relief, Monetaire Mining Co. v.
Columbus Rexall Consol. Mines Co., 53 Utah, 413, 174 P.
758
FINE
172, 174; nor to the opinion of the trial court, delivered in • Council of Wilmington, 9 W.W.Harr. 336, 199 A.
announcing judgment, Rogers v. Harris, 76 Okl. 215, 184
283, 287.
P. 459, 462; nor to a memorandum of the decision of the
The word "penalty" is broader than word "fine", which
trial judge, Preston v. Preston, 102 Conn. 96, 128 A. 292,
is always a penalty; whereas, a penalty may be a fine or
296; nor to a transcript of the evidence, State v. Chin
it may designate some other form of punishment. McHugh
Lung, 106 Conn. 701, 139 A. 91, 97.
v. Placid Oil Co., 206 La. 511, 19 So.2d 221.
A general finding by a court is a general statement that
the facts are in favor of a party or entitle him to judgExecuted Fine
ment. It is a complete determination of all matters, and is
a finding of every special thing necessary to be found to
See Executed.
sustain the general finding. Miller v. Thompson, 80 Okl.
70, 194 P. 103, 105.
Joint Fine
A special finding is a specific setting forth of the ultimate
facts established by the evidence and which are determinaIn old English law. "If a whole vill is to be
tive of the judgment which must be given. Rhodes v.
fined, a joint fine may be laid, and it will be good
United States Nat. Bank, Ill., 66 F. 514, 13 C.C.A. 612, 34
for the necessity of it; but, in other cases, fines
L.R.A. 742; Humphreys v. Third Nat. Bank, Ohio, 75 F.
856, 21 C.C.A. 538. It is only a determination of the ultifor offenses are to be severally imposed on each
mate facts on which the law must be determined, Societe
particular offender, and not jointly upon all of
Nouvelle d'Armement v. Barnaby, C.C.A.Wash;, 246 F. 68,
them." Jacob.
70. A special finding may also be said to be one limited to
the fact issue submitted. Ex parte Woodward Iron Co.,
Law of Tenure
212 Ala. 220, 102 So. 103, 106.
The term "fact" in the phrase "finding of fact" denotes
A money payment made by a feudal tenant to
the inferences drawn by the trior from ascertained facts.
his lord.
Porter v. Industrial Commission of Wisconsin, 173 Wis. 267,
131 N.W. 317, 318.
The most usual fine is that payable on the admittance of
a new tenant, but there are also due in some manors fines
upon alienation, on a license to demise the lands, or on the
FINE, v. To impose a pecuniary punishment or
death of the lord, or other events. Elton, Copyh. 159; De
Peyster v. Michael, 6 N.Y. 495, 57 Am.Dec. 470.
mulct.
To sentence a per-son convicted of an offense to
pay a penalty in money. Goodman v. Durant B.
& L. Ass'n, 71 Miss. 310, 14 So. 146; State v. Belle,
92 Iowa 258, 60 N.W. 525.
FINE AND RECOVERY ACT. The English statutes 3 & 4 Wm. IV. c. 74, for abolishing fines and
recoveries. 1 Steph.Comm. 514, et seq.
FINE ANULLANDO LEVATO DE TENEMENTO
QUOD FUIT DE ANTIQUO DOMINICO. An
abolished writ for disannulling a fine levied of
lands in ancient demesne to the prejudice of the
lord. Reg.Orig. 15.
FINE, n. A sum of money paid at the end, to
make an end of a transaction, suit, or prosecution;
mulct; penalty. Railroad Co. v. State, 22 Kan. 15;
Sunderland Bros. Co. v. Chicago, B. & I. R. Co.,
104 Neb. 319, 177 N.W. 156, 157. A forfeit or forfeiture. Keinath, Schuster & Hudson v. Reed, 18
N.M. 358, 137 P. 841, 844; Bryant v. Rich's Grill,
216 Mass. 344, 103 N.E. 925, 927, Ann.Cas.1915B,
869.
FINE CAPIENDO PRO TERRIS. An obsolete
writ which lay for a person who, upon conviction
by jury, had his lands and goods taken, and his
body imprisoned, to be remitted his imprisonment,
and have his lands and goods redelivered to him,
on obtaining favor of a sum of money, etc. Reg.
Orig. 142.
Conveyancing
An amicable composition or agreement of a suit,
either actual or fictitious, by leave of the court, by
which the lands in question become, or are acknowledged to be, the right 'of one of the parties.
2 Bl.Comm. 349; Christy v. Burch, 25 Fla. 942, 2
So. 258; Hitz v. Jenks, 123 U.S. 297, 8 S.Ct. 143, 31
L.Ed. 156. Fines were abolished in England by
St. 3 & 4 Wm. IV. c. 74, substituting a disentailing
deed. (q. v.).
FINE FOR ALIENATION. A fine anciently payable upon the alienation of a feudal estate and
substitution of a new tenant. It was payable to
the lord by all tenants holding by knight's service
or tenants in capite by socage tenure. Abolished
by 12 Car. II. c. 24. See 2 BI.Comm. 71, 89; De
Peyster v. Michael, 6 N.Y. 467, 495, 57 Am.Dec.
470.
A fine is so called because it puts an end not only to the
suit thus commenced, but also to all other suits and controversies concerning the same matter. The party who
parted with the land, by acknowledging the right of the
other, was said to levy the fine, and was called the "cognizor" or "conusor," while the party who recovered or
received the estate was termed the "cognizee" or "conusee," and the fine was said to be levied to him.
Criminal Law
A pecuniary punishment imposed by lawful tribunal upon person convicted of crime or misdemeanor. In re Chester School District's Audit, 301
Pa. 203, 151 A. 801, 808. A pecuniary penalty.
Hanks v. Shreveport Yellow Cabs, La.App., 187 So.
817, 819. It may include a forfeiture or penalty
recoverable in a civil action. Vitelli v. Mayor and
FINE FOR ENDOWMENT. A fine anciently payable to the lord by the widow of a tenant, without
which she could not be endowed of her husband's
lands. Abolished under Henry I., and by Magna
Charta. 2 Bl.Comm. 135; Mozley & Whitley.
FINE NON CAPIENDO PRO PULCHRE PLACITANDO. An obsolete writ to inhibit officers of
courts to take fines for fair pleading.
FINE PRO REDISSEISINA CAPIENDO. An old
writ that lay for the release of one imprisoned for
a redisseisin, on payment of a reasonable fine.
Reg.Orig. 222.
FINE ROLLS. See Oblate Rolls,
759
FINE
FINE SUR COGNIZANCE DE DROIT, CUM
CEO QUE IL AD DE SON DONE. A fine upon
acknowledgment of the right of the cognizee as
that which he hath of the gift of the cognizor.
By this the deforciant acknowledged in court a
former feoffment or gift in possession to have
been made by him to the plaintiff. 2 Bl.Comm.
352.
FINIS REI ATTENDENDUS EST. 3 Inst. 51.
The end of a thing is to be attended to.
FINE SUR COGNIZANCE DE DROIT TANTUM.
A fine upon acknowledgment of the right merely,
and not with the circumstance of a preceding gift
from the cognizor.
FINIUM REGUNDORUM ACTIO. In the civil
law, action for regulating boundaries. The name,
of an action which lay between those who had
lands bordering on each other, to settle disputed
boundaries. Mackeld.Rom.Law, § 499.
This was commonly used to pass a reversionary interest
which was in the cognizor, of which there could be no feoffment supposed. 2 Bl.Comm. 353; 1 Steph.Comm. 519;
Jacob, Law Diet.; Corn., Dig.
FINE SUR CONCESSIT. A fine upon concessit
(he hath granted). A species of fine, where the
cognizor, in order to make an end of disputes,
though he acknowledged no precedent right, yet
granted to the cognizee an estate de novo, usually
for life or years, by way of supposed composition.
2 Bl.Comm. 353; 1 Steph.Comm. 519.
FINE SUR DONE GRANT ET RENDER. A double fine, comprehending the fine sur cognizance de
droit come ceo and the fine sur concessit.
It might be used to convey particular limitations of
estates, whereas the fine sur cognizance de droit come ceo,
etc., conveyed nothing but an absolute estate, either of
inheritance, or at least freehold. In this last species of
fines, the cognizee, after the right was acknowledged to be
in him, granted back again or rendered to the cognizor, or
perhaps to a stranger, some other estate in the premises.
2 Bl.Comm. 353; Viner, Abr. Fine; Comyns, Dig. Fine.
FINE-FORCE. An absolute necessity or inevitable constraint. Plowd. 94; 6 Coke, 11; Cowell;
Old N.B. 78.
FINEM FACERE. To make or pay a fine. Bract.
106; Skene.
FINES LE ROY. In old English law, the king's
fines. Fines formerly payable to the king for any
contempt or offense, as where one committed any
trespass, or falsely denied his own deed, or did
anything in contempt of law. Termes de la Ley.
FINGER. The loss of the use of a thumb cannot
be considered the loss of a finger within Work-
men's Compensation Law. Doris v. James Butler,
Inc., 199 App.Div. 116, 192 N.Y.S. 515.
FINGER PRINTS. See Anthropometry.
FINIRE. In old English law, to fine, or pay a
fine. Cowell. To end or finish a matter.
FINIS. Lat. An end; a fine; a boundary or
treminus; a limit. Also in L. Lat., a fine (q. v.).
FINIS EST AMICABILIS COMPOSITIO ET FINALIS CONCORDIA EX CONCENSU ET CONCORDIA DOMINI REGIS VEL JUSTICIARUM.
Glan. lib. 8, c. 1. A fine is an amicable settlement
and decisive agreement by consent and agreement
of our lord, the king, or his justices.
FINIS FINEM LITIBUS IMPONIT. A fine puts
an end to litigation. 3 Inst. 78,
FINIS UNIUS DIEI EST PRINCIPIUM ALTER!•
US. 2 Bulst. 305. The end of one day is the beginning of another.
FINITIO. An ending; death, as the end of life.
Blount; Cowell.
FINORS. Those that purify gold and silver, and
part them by fire and water from coarser metals;
and therefore, in the statute of 4 Hen. VII. c. 2,
they are also called "porters." Termes de la Ley.
FIRDFARE. Sax. In old English law, a summoning forth to a military expedition, (indictio
ad profectionem militarem.) Spelman.
FIRDIRINGA. Sax. A preparation to go into
the army. Leg. Hen. I.
FIRDSOCNE. Sax. In old English law, exemption from military service. Spelman.
FIRDWITE. In old English law, a fine for refusing military service ( mulcta detrectantis militiam.) Spelman. A mulct or penalty imposed on
military tenants for their default in not appearing
in arms or coming to an expedition. Cowell.
A fine imposed for murder committed in the
army; an acquittance of such fine. Fleta, lib. 1, c.
47.
FIRE. The effect of combustion. The juridical
meaning of the word does not differ from the
vernacular. 1 Pars.Mar.Law, 231, et seq.
The word "fire," as used in insurance policies, does nothave the technical meaning developed from analysis of its
nature, but more nearly the popular meaning, being an
effect rather than an elementary principle, and is the effect
of combustion, being equivalent to ignition or burning, but
heat is not fire, though fire may proximately cause loss
from heat. Lavitt v. Hartford County Mut. Fire Ins. Co.,
105 Conn. 729, 136 A. 572.
The ordinary meaning of the word as used in an insurance policy includes the idea of visible heat or light. Security Ins. Co. of New Haven, Conn., v. Choctaw Cotton Oil
Co., 149 Okl. 140, 299 P. 882, 884. Damage to wool by
spontaneous combustion with smoke and great heat, but
withont any visible flame or glow, is held not to be fire.
The "fire is always caused by combustion, but combustion
does not always cause fire." Western Woolen Mill Co. v.
Assurance Co., Kan., 139 F. 637, 72 C.C.A. 1.
Under a fire policy it must be a "hostile fire," that is
one which becomes uncontrollable or breaks out from
where it was intended to be and becomes a hostile element.
Mode, Limited, v. Fireman's Fund Ins. Co., 62 Idaho 270,
110 P.2d 840, 842, 133 A.L.R. 791.
FIRE AND SWORD, LETTERS OF. In old Scotch
law, letters issued from the privy council in Scotland, addressed to the sheriff of the county, authorizing him to call for the assistance of the county to dispossess a tenant retaining possession,
contrary to the order of a judge or the sentence of_
a court. Wharton; Bell, Dict.
760
FIRM
FIREARM. An instrument used in the propulsion of shot, shell, or bullets by the action of
gunpowder exploded within it. A weapon which
acts by force of gunpowder. People v. Simons,
124 Misc. 28, 207 N.Y.S. 56, 57. This word comprises all sorts of guns, fowling-pieces, blunderbusses, pistols, etc.; Harris v. Cameron, 81 Wis.
239, 51 N.W. 437, 29 Am.St.Rep. 891; Atwood v.
State, 53 Ala. 509; Whitney Arms Co. v. Barlow, 38
N.Y.Super.Ct. 563; fountain pen primarily intended for discharge of tear gas, People v. Anderson,
236 App.Div. 586, 260 N.Y.S. 329; but not an air
pistol. People v. Schmidt, 221 App.Div, 77, 222
N.Y.S. 647, 650.
FIRE FIGHTING MACHINE. An instrument of
public utility designed and used exclusively for
putting out fires; the average or normal firefighting machine is in all its parts essentially
designed for that purpose. American-La France
Fire Engine Co. v. Riordan, C.C.A.N.Y., 6 F.2d
964, 966.
FIREBARE. A beacon or high tower by the seaside, wherein are continual lights, either to direct
sailors in the night, or to give warning of the approach of an enemy. Cowell.
FIRE POLICY. A contract for payment of indemnity to insured in case of loss. Converse v. Boston
Safe Deposit & Trust Co., 315 Mass. 544, 53 N.E.2d
841, 843. See Insurance.
FIREBOTE. Allowance of wood or estovers to
maintain competent firing for the tenant. A sufficient allowance of wood to burn in a house. 1
Washb.Real Prop. 99.
FIRE-PROOF. Incombustible; not in danger
from the action of fire.
FIRE INSURANCE. See Insurance.
FIREMAN. A person engaged in the fighting and
extinguishment of fires. City of Galveston v. Fredrickson, Tex.Civ.App., 174 S.W.2d 994, 995.
FIRE ORDEAL. See Ordeal.
To say of a building that it is fire-proof excludes the idea
that it is of wood, and necessarily implies that it is of
some substance fitted for the erection of fire-proof buildings. To say of a certain portion of a building that it is
fire-proof warrants conclusion that it is of a different
material. Hickey v. Morrell, 102 N.Y. 459, 7 N.E. 321, 55
Am. Rep. 824. A "fire-proof safe" within an insurance
policy is one which, in the judgment of prudent men in
locality of property insured, is sufficient, National Liberty
Ins. Co. of America v. Spharler, 172 Ark. 715, 290 S.W. 594,
596; or one which is of the kind commonly regarded as
fire-proof; Knoxville Fire Ins. Co. v. Hird, 4 Tex.Civ.App.
82, 23 S. W. 393.
FIREBUG. A popular phrase referring to persons
guilty of the crime of arson; commonly understood to mean an incendiary or pyromaniac.
Blechner v. Kraser, Co.Ct., 157 N.Y.S. 256.
FIRE DAMP. "Fire damp" consists of light carburated hydrogen, and is so called from its tendency to explode when mixed with atrpospheric
air and brought into contact with flame. Wells'
Adm'r v. Sutherland Coal & Coke Co., 116 Va. 1003,
83 S.E. 384, 385.
FIRE DISTRICT. One of the districts into which
a city may be (and commonly is) divided for the
purpose of more efficient service by the fire department in the extinction of fires. Des Moines v.
Gilchrist, 67 Iowa 210, 25 N.W. 136. Under a statute, a territorial subdivision of the state, established to provide protection against fire within its
limits, maintain street lights, etc., and, although
composed of one or more towns, it is in substance
a quasi municipal corporation of definitely restricted powers, and as such it may raise money
by taxation for its legitimate uses. President, etc.,
of Williams College v. Inhabitants of Town of
Williamstown, 219 Mass. 46, 106 N.E. 687, 688.
FIRE DOOR. A fireproof barrier for closing openings to prevent the spread of fire. People v. One
Hundred and Thirty-One Boerum St. Co., 233 N.Y.
268, 135 N.E. 327, 328.
FIRE ESCAPE. An apparatus constructed to afford a safe and convenient method of escape from
a burning building. The term includes fire ladders of such sort and location as to permit safe
descent of persons caught in a building on fire,
but not a balcony or an interior staircase in a
hotel. West v. Spratling, 204 Ala. 478, 86 So. 32,
36.
FIRE EXIT. A reasonable, practicable, safe exit.
Keefe v. Annpaul Realty Co., 215 App.Div. 301, 213
N.Y.S. 637, 642.
FIRE RAISING. In Scotch law, the wilfully setting on fire buildings, growing or stored cereals,
growing wood, or coalheughs. Ersk.Pr. 577, See
Arson.
FIRE WALL. This term, as used in a municipal
building code, has been held to refer to a wall
that is noncombustible, and to require that such
quality adhere to the openings in the wall as well
as the solid wall itself. Robenson v. Turner, 199
Ky. 642, 251 S.W. 857, 860.
FIRE-WOOD. Wood suitable for fuel, not including standing or felled timber which is suitable and
valuable for other purposes. Hogan v. Hogan, 102
Mich. 641, 61 N.W. 73.
FIREWORKS. Contrivances of inflammable and
explosive materials combined of various proportions for purpose of producing in combustion
beautiful or amusing scenic effects, or to be used
as night signal, on land or sea or for 'various purposes in war. Henderson v. Massachusetts Bonding & Ins. Co., 337 Mo. 1, 84 S.W.2d 922, 925.
FIRKIN. A measure of capacity, equal to nine
gallons. The word is also used to designate a
weight, used for butter and cheese, of fifty-six
pounds avoirdupois.
FIRLOT. A Scotch measure of capacity, containing two gallons and a pint. Spelman.
FIRM. The word "firm" is conventional term,
applicable only to persons who are members of
firm on particular occasion when name is used,
761
FIRM
and means name, title, or style under which a
company transacts business, a partnership of two
or more persons, or a commercial house, and is
synonymous with "company", "house", "partnership", and "concern". Firestone Tire & Rubber
Co. v. Webb, 207 Ark. 820, 182 S.W.2d 941, 943;
1 Chitty, Bailm. 49.
FIRM NAME.
The name or title of a firm in bus-
•
strong or high degree of belief, and is equivalent
to saying that he "verily" believes it. Bradley
v. Eccles, 1 Browne, Pa., 258; Thompson v. White,
4 Serg. & R., Pa., 137. The operative words in a
bond or recognizance, that the obligor is held and
"firmly bound," are equivalent to an acknowledgment of indebtedness and promise to pay. Shattuck v. People, 5 Ill. 477.
iness.
FIRMURA. In old English law, liberty to scour
FIRMA. In old English law, the contract of lease
and repair a mill-dam, and carry away the soil,
etc. Blount.
or letting; also the rent (or farm) reserved upon
a lease of lands, which was frequently payable in
provisions, but sometimes in money, in which latter case it was called "alba firma," white rent.
Spelman, Gloss.; Cunningham, Law Dict.
A messuage with the house, garden, or lands,
etc., connected therewith. Co.Litt. 5 a; Shepp.
Touchst. 93.
A banquet; supper; provisions for the table.
Du Cange.
A tribute or custom paid towards entertaining
the king for one night. Domesday; Cowell.
FIRMA BURGI.
The right, in medieval days, to
take the profits of a borough, paying for them a
fixed sum to the crown or other lord of the borough. 2 Holdsw.Hist.E.L. 276.
FIRMA FEODI.
In old English law, a farm or
lease of a fee; a fee-farm.
FIRMAN. A
Turkish word denoting a decree
or grant of privileges, or passport to a traveler.
A passport granted by the Great Mogul to captains of foreign vessels to trade within the territories over which he has jurisdiction; a permit.
FIRMARATIO.
The right of a tenant to his lands
and tenements. Cowell.
FIRMARIUM. In old records, a place in monasteries, and elsewhere, where the poor were received and supplied with food. Spelman. Hence the
word "infirmary."
FIRMARIUS. L.
Lat. A fermor. A lessee of a
term. Firmarii comprehend all such as hold by
lease for life or lives or for year, by deed or without deed. 2 Inst. 144, 145; 1 Washb.Real Prop.
107; Sackett v. Sackett, 8 Pick. (Mass.) 312; 7
Ad. & E. 637.
FIRMATIO. The doe season. Also a supplying
with food. Cowell.
FIRST.
Preceding all others; foremost; used as
an ordinal of one, as earliest in time or succession or foremost in position; in front of or in
advance of all others. Colgate-Palmolive-Peet Co.
v. U. S., C.C.A.Del., 130 F.2d 913, 915. Initial;
leading; chief; entitled to priority or preference
above others. Redman v. Railroad Co., 33 N.J.Eq.
165; Thompson v. Grand Gulf R. & B. Co., 3 How.
Miss. 247, 34 Am.Dec. 81; Hapgood v. Brown, 102
Mass. 452.
The word commonly, but not necessarily, connotes precedence. Hill v. Prior, 79 N.H. 188, 106 A. 641; Beckley v.
Ailing, 91 Conn. 362, 99 A. 1034, 1035. Thus, under a contract that, if the purchaser should "first" make payment,
the vendor would convey, payment was to precede the execution of the conveyance. Walker v. Hewitt, 109 Or. 366,
220 P. 147, 151, 35 A.L.R. 100. But in a will the word
"first" may not import precedence of one bequest over
another. Everett v. Carr, 59 Me. 330; Swasey v. American
Bible Society, 57 Me. 523.
As to first "Cousin," "Distress,"
gage," see those titles.
and "Mort-
FIRST BLUSH.
By the phrase "first blush," within the rule that damages, to justify reversal, must
be so great as to strike the mind at first blush
as having been superinduced by passion or prejudice on the part of the jury, is meant that immediately the judicial mind is shocked and surprised at the great disproportion of the size of the
verdict to what the facts of the case would authorize. Cole & Crane v. May, 185 Ky. 135, 214 S.W.
885, 887.
FIRST-CLASS.
Of the most superior or excellent grade or kind; belonging to the head or chief
or numerically precedent of several classes into
which the general subject is divided. See Pacific
Feed Co. v. Kennel, 63 Cal.App. 108, 218 P. 274, 275.
FIRST-CLASS MAIL-MATTED.
In the postal
laws, all mailable matter containing writing and
all else that is sealed against inspection.
In old English law, an assurance of
some privilege, by deed or charter.
i In English
law. Under the prisons act (28 & 29 Vict. c. 126,
§ 67) prisoners in the county, city, and borough
prisons convicted of misdemeanor, and not sentenced to hard labor, are divided into two classes,
one of which is called the "first division;" and it
is in the discretion of the court to order that
such a prisoner be treated as a misdemeanant of
the first division, usually called "first-class misdemeanant," and as such not to be deemed a criminal prisoner, i. e., a prisoner convicted of a crime.
FIRMLY. A
FIRST-CLASS TITLE. A marketable title, shown
FIRME.
In old records, a farm.
FIRMIOR ET POTENTIOR EST OPERATIO
LEGIS QUAM DISPOSITIO HOMINIS. The operation of the law is firmer and more powerful
[or efficacious] than the disposition [or will] of
man. Co.Litt. 102a.
FIRMITAS.
statement that an affiant "firmly
believes" the contents of the affidavit imports a
FIRST-CLASS
by a clean record, or at least not depending on pre-
762
FIRST TRIAL
sumptions that must be overcome or facts that
are uncertain. Vought v. Williams, 120 N.Y. 253,
24 N.E. 195, 8 L.R.A. 591, 17 Am.St.Rep. 634.
FIRST DEGREE BURN. One which produces an
inflammation of the outer layer of the skin, like
a sunburn. Smith v. Beard, 56 Wyo. 375, 110 P.
2d 260, 261, 262.
FIRST DEVISEE. The person to whom the estate is first given by the will, term "next devisee" referring to the person to whom the remainder is given. Young v. Robinson, 5 N.J.L.
689; Wilcox v. Heywood, 12 RI. 198.
FIRST DOMESTIC PROCESSING. Refining or
saponification of coconut oil is a "processing" or
use thereof, and if the refining or saponification is
the first processing or use of the oil in the United
States, and occurs in the course of the manufacture or production of any article intended for sale,
it is the "first domestic processing" within the
statute taxing the first domestic processing. Revenue Act of 1934, § 602 1/2 (a), 26 U.S.C.A. § 2470(a).
Cincinnati Soap Co. v. U. S., D.C.Ohio, 22 F.Supp.
141.
FIRST FRUITS. In English ecclesiastical law,
the first year's whole profits of every benefice or
spiritual living, anciently paid by the incumbent to
the pope, but afterwards transferred to the fund
called "Queen Anne's Bounty," for increasing the
revenue from poor livings.
In feudal law, one year's profits of land which
belonged to the king on the death of a tenant in
capite; otherwise called "primer seisin." One of
the incidents to the old feudal tenures. 2 Bl.
Comm. 66, 67.
FIRST HEIR. The person who will be first entitled to succeed to the title to an estate after the
termination of a life estate or estate for years.
Winter v. Perratt, 5 Barn. & C. 48.
FIRST IMPRESSION. First examination. First
presentation to a court for examination or decision. A case is said to be "of the first impression"
when it presents an entirely novel question of law
for the decision of the court, and cannot be governed by any existing precedent.
FIRST IN, FIRST OUT RULE. It is not a rule
of law nor of logic, but a rule of thumb. It is a
presumption of fact and really a regulation of the
burden of proof. What is first sold is presumed to
be what was first bought. Ninth Bank & Trust
Co. v. U. S., D.C.Pa., 15 F.Supp. 951, 952.
FIRST INVENTOR. Within the meaning of that
phrase as used in the fourth paragraph of Rev.St.
§ 4920 (35 U.S.C.A. § 69), providing that it shall
be a defense to a suit for infringement that the
patentee was not the original or first inventor, a
person who perfects his invention, the only evidence of such perfected invention ordinarily derivable from any patent being a union of disclosure and claim. Davis-Bournonville Co. v. Alexander Milburn Co., C.C.A.N.Y., 1 F.2d 227, 232.
FIRST LIEN. One which takes priority or precedence over all other charges or incumbrances upon the same piece of property, and which must be
satisfied before such other charges are entitled to
participate in the proceeds of its sale.
FIRST MEETING. As used in a statute providing that, for insulting words or conduct to reduce
homicide to manslaughter, killing must occur immediately or at "first meeting" after slayer is
informed thereof, quoted words mean first time
parties are in proximity under such circumstances
as would enable slayer to act in the premises.
Smith v. State, 288 S.W. 458, 462, 105 Tex.Cr.R.
327.
FIRST OF EXCHANGE. Where a set of bills of
exchange is drawn in duplicate or triplicate, for
greater safety in their transmission, all being of
the same tenor, and the intention being that the
exceptance and payment of any one of them
(the first to arrive safely) shall cancel the others
of the set, they are called individually the "first of
exchange," "second of exchange," etc. See Bank
of Pittsburgh v. Neal, 22 How. 96, 110, 16 L.Ed.
323.
FIRST POLICY YEAR. This phrase in a statute
eliminating suicide of insured after such year as
defense, means year for which policy, annually renewed, was first issued. Carter v. Standard Acc.
Ins. Co., 65 Utah, 465, 238 P. 259, 267, 41 A.L.R.
1495. The year beginning with the issuance of
the policy. American Nat. Ins. Co. v. Thompson,
Tex.Civ.App., 186 S.W. 254, 255.
FIRST PROCESSING. The processing that first
results in a marketable product. Hendricks v. Di
Giorgio Fruit Corporation, D.C.Cal., 49 F.Supp.
573, 575, 576.
FIRST PURCHASER. In the law of descent, this
term signifies the ancestor who first acquired (in
any other manner than by inheritance) the estate
which still remains in his family or descendants.
Blair v. Adams, C.C.Tex., 59 F. 247.
FIRST RETURN. The "first return", within statute as to depletion deduction is a first return listing items of gross income and deductions arising
out of the property. Commissioner of Internal
Revenue v. Alta Mines, C.C.A.10, 139 F.2d 580, 582.
FIRST TRIAL. Under a statute providing when
a case at law is tried by a jury, and the successful party excepts to the granting of a new trial
for insufficiency of the evidence, and the evidence
is certified, the appellate court, if there have been
two trials below, shall first look to the evidence
and proceedings on the first trial, and, if the setting aside of the first verdict was error, all proceedings subsequent thereto shall be annulled,
and judgment rendered thereon, the "first trial"
means the first at-which exceptions to the granting of a new trial were taken. Chesapeake & 0.
Ry. Co. v. Parker's Adm'r, 116 Va. 368, 82 S.E. 183,
187.
763
FISC
FISC. A treasury of a kingdom or state; a money chest. Daly v. Beery, 45 N.D. 287, 178 N.W.
104, 109. An Anglicized form of the Latin "fiscus," ( which see.)
FISCAL. Of or pertaining to the public treasury or revenue, of or pertaining to financial matters generally. Wall v. Close, 203 La. 345, 14 So.
2d 19, 26. Belonging to the fisc, or public treasury. Relating to accounts or the management of
revenue. Of or pertaining to the public finances
of a government. Daly v. Beery, 45 N.D. 287, 178
N.W. 104, 109. Financial. Armstrong v. State
Bank of Mayville, 177 App.Div. 265, 165 N.Y.S. 5,
8.
FISCAL AGENT. This term does not necessarily
imply a depositary of the public funds, so as, by
the simple use of it in a statute, without any directions in this respect, to make it the duty of the
state treasurer to deposit with him any moneys
in the treasury. State v. Dubuclet, 27 La.Ann. 29.
FISCAL COURT. A ministerial and executive
body in some states. Stone v. Winn, 165 Ky. 9,
176 S.W. 933, 941.
FISCAL JUDGE. A public officer named in the
laws of the Ripuarians and some other Germanic
peoples, apparently the same as the "Graf,"
"reeve," "comes," or "count," and so called because charged with the collection of public revenues, either directly or by the imposition of fines.
See Spelman, voc. "Grafio."
FISCAL OFFICERS. Those charged with the
collection and distribution of public money, as, the
money of a state, county, or municipal corporation.
The treasury of a noble, or of any private person. Spelman.
FISH. An animal which inhabits the water,
breathes by means of gills, swims by the aid of
fins, and is oviparous. The term includes crabs,
State v. Savage, 96 Or. 53, 184 P. 567, 570; escallops, State v. Dudley, 182 N.C. 822, 109 S.E. 63, 65;
and mussels and other shellfish, Gratz v. McKee,
C.C.A.Mo., 258 F. 335, 336.
The object to be removed from oil well is known
as a "fish." Raymond v. Wickersham, Cust. &
Pat.App., 110 F.2d 863, 864.
FISH COMMISSIONER. A public officer of the
United States, created by act of congress of February 9, 1871, R.S. § 4395, whose duties principally concerned the preservation and increase
throughout the country of fish suitable for food.
Office of Commissioner of Fisheries was abolished
and functions were transferred to the U. S. Fish
and Wildlife Service, 16 U.S.C.A. § 241 notes.
FISH POTS. Contrivances in the nature of
screens and traps, placed at the junction of low
dams or walls extending out from each shore and
somewhat down stream, in such a way as to collect the water and send it through the pot, so
that fish may be screened out there. Middlekauff
v. Le Compte, 149 Md. 621, 132 A. 48.
Cf. Pound Net.
FISH ROYAL. These were the whale and the
sturgeon, which, when thrown ashore or caught
near the coast of England, became the property
of the king by virtue of his prerogative and in
recompense for his protecting Ole shore from pirates and robbers. Brown; 1 Bl.Comm. 290. Arnold v. Mundy, 6 N.J.L. 86, 10 Am.Dec. 356. Some
authorities include the porpoise. Hale, De Jure
Mar. pt. 1, c. 7; Plowd. 305; Bracton, L 3, c. 3.
FISCAL YEAR. The year by or for which accounts are reckoned, or the year between one annual time of settlement or balancing of accounts
and another. People ex rel. Pollastrini v. Whealan, 353 Ill. 500, 187 N.E. 491, 494. An accounting
period of 12 months. U. S. v. Mabel Elevator Co.
D.C.Minn., 17 F.2d 109, 110; U. S. v. Carroll Chain
Co., D.C.Ohio, 8 F.2d 529, 530. A period of twelve
months (not necessarily concurrent with the calendar year) with reference to which appropriations are made and expenditures authorized, and
at the end of which accounts are made up and the
books balanced. Shaffner v. Lipinsky, 194 N.C. 1,
138 S.E. 418, 419.
FISHERY. A place prepared for catching fish
with nets or hooks. This is commonly applied to
the place of drawing a seine or net. Hart v. Hill,
1 Whart., Pa., 131, 132,
A right or liberty of taking fish; a species of
incorporeal hereditament, anciently termed "piscary," of which there are several kinds. 2 Bl.
Comm. 34, 39; 3 Kent, Comm. 409-418; Arnold v.
Mundy, 6 N.J.L. 22, 10 Am.Dec. 356; Gould v.
James, 6 Cow., N.Y., 376; Hart v. Hill, 1 Whart.,
Pa., 124.
FISCUS. Roman law. The treasury of the prince
or emperor, as distinguished from "cerarium,"
which was the treasury of the state. Spelman;
Paillet, Droit Public, 21, n. This distinction was
not observed in France. In course of time the
Fiscus absorbed the cerarium and became the treasury of the state. Gray, Nature and Sources of
Law 58. See Law 10, ff. De jure Fisci.
The treasury or property of the state, as distinguished from the private property of the sovereign.
English law. The king's treasury, as the repository of forfeited property.
Common fishery. A fishing ground where all persons
have a right to take fish. Bennett v. Costar, 8 Taunt. 183;
Albright v. Park Com'n, 68 N.J.L. 523, 53 A. 612. Not to be
confounded with "common of fishery," as to which see
Common, n.
Free fishery. A franchise in the hands of a subject,
existing by grant or prescription, distinct from an ownership in the soil. It is an exclusive right, and applies to a
public navigable river, without any right in the soil. 3
Kent, Comm. 410. Arnold v. Mundy, 6 N.J.L. 87, 10 Am.
Dec. 356.
Right of fishery. The general and common right of the
citizens to take fish from public waters, such as the sea,
great lakes, etc. Shively v. Bowlby, 152 U.S. 1, 14 S.Ct.
548, 38 L. Ed. 331.
Several fishery. A fishery of which the owner is also
the owner of the soil, or derives his right from the owner
764
of the soil. 2 BI.Com. 39, 40; 1 Steph.Corrun. 671, note.
One by which the party claiming it has the right of fishing, independently of all other, so that no person can have
a coextensive right with him in the object claimed; but
a partial and independent right in another, or a limited
liberty, does not derogate from the right of the owner. 5
Burr. 2814.
FISHERY LAWS. A series of statutes passed in
England for the regulation of fishing, especially
to prevent the destruction of fish during the breeding season, and of small fish, spawn, etc., and the
employment of improper modes of taking fish. 3
Steph.Comm. 165.
FISHGARTH. A dam or weir in a river for taking fish. Cowell.
FISHING BANKS. A fishing ground of comparative shoal water in the sea. Parker v. Thomson,
21 Or. 523, 28 P. 502.
FISHING BILL. A bill showing no cause of action and endeavoring to compel defendants to
disclose one in plaintiff's favor. White v. National Paving Co., Tex.Civ.App., 101 S.W.2d 588,
590. Or seeking disclosure by adversary of facts
supporting suit. Puget Sound Na y . Co. v. Associated Oil Co., D.C.Wash., 56 F.2d 605, 606. A discovery sought on general, loose, and vague allegations. Story, Eq.P1. § 325; In re Pacific Ry.
Com'n, C.C.Cal., 32 F. 263; or on suspicion, surmise, or vague guesses. Marietta Mfg. Co. v.
Hedges-Walsh-Weidner Co., 9 W.W.Harr. 511, 2
A.2d 922, 926.
Where purpose of proposed examination of witness was
to examine books and records to determine status of an
account on which petitioner expected to sue, the proceeding was a "fishing expedition". State ex rel. Pitcher v.
District Court of Fifth Judicial Dist. in and for Madison
County, 114 Mont. 128, 133 P.2d 350, 353.
FISK. In Scotch law, the fiscus or fist. The revenue of the crown. Generally used of the personal
estate of a rebel which has been forfeited to the
crown. Bell.
particularly, such attacks occurring in epilepsy.
In a more general sense, the period of an acute
attack of any disease, physical or mental, as, a
fit of insanity. See Gunter v. State, 83 Ala. 96, 3
So. 600. Also used in the plural, in which sense
it is a layman's term for epilepsy. Westphal' v.
Metropolitan Life Ins. Co., 27 Cal.App. 734, 151
P. 159, 162.
FITZ. A Norman word, meaning "son." It is
used in law and genealogy; as Fitzherbert, the
son of Herbert; Fitzjames, the son of James;
Fitzroy, the son of the king. It was originally
applied to illegitimate children.
FIVE-MILE ACT. An act of parliament, passed
in 1665, against non-conformists, whereby ministers of that body who refused to take the oath of
non-resistance were prohibited from coming within five miles of any corporate town, or place where
they had preached or lectured since the passing
of the act of oblivion in 1660, nullified by act of
1689. Brown.
FIX. Adjust or regulate. McKann v. Town of
Irvington, 133 N.J.L. 63, 42 A.2d 391, 393. Determine; settle. Bunn v. Kingsbury County, 3 S.D.
87, 52 N.W. 673; In re McLure's Estate, 68 Mont.
556, 220 P. 527, 530. Make permanent. Kendall
v. Stafford, 178 N.C. 461, 101 S.E. 15, 17. It imports finality and stability. MacNeill v. Bazemore, 194 Ga. 406, 21 S.E.2d 414, 416. Certainty
and definiteness. Commercial Casualty Ins. Co.
v. State Board of Tax Appeals, 119 N.J.L. 94, 194
A. 390, 391.
To liquidate or render certain. To fasten a liability
upon one. To transform a possible or contingent liability
into a present and definite liability. Zimmerman v. Canfield, 42 Ohio St. 468; Polk v. Minnehaha County, 5 Dak.
129, 37 N.W. 93; Logansport & W. V. Gas Co. v. Peru,
C.C.Ind., 89 F. 187.
FISSURE VEIN. In mining law, a vein or lode
of mineralized matter filling a pre-existing fissure
or crack in the earth's crust extending across the
strata and generally extending indefinitely downward. See Crocker v. Manley, 164 Ill. 282, 45 N.E.
577, 56 Am.St.Rep. 196.
FIX UP. A promise by a debtor to visit his creditor and "fix it up" with him was not a sufficient
promise to pay to toll the statute of limitations, as
the expression "fix it" would ordinarily be understood as meaning "make some kind of agreement or adjustment that may dispose of it."
Shaw v. Bubier, 119 Me. 83, 109 A. 373, 374.
FISTUCA, or FESTUCA. In old English law, the
rod or wand, by the delivery of which the property
in land was formerly transferred in making a feoffment. Called, also, "baculum," "virga," and
lustis." Spelman. See Festuca.
FIXED. In a charter entered into by the captain
of a ship, containing the condition, "Provided
ship not fixed previously," "fixed" was equivalent
to "tied up," "closed," "not free." Richichi v.
James B. Drake & Sons, D.C.Me., 280 F. 421, 424.
FISTULA. In the civil law, a pipe for conveying
water. Dig. 8, 2, 18.
Prices are "fixed" when they are agreed upon.
United States v. Masonite Corporation, N.Y., 316
U.S. 265, 62 S.Ct. 1070, 1076, 86 L.Ed. 1461.
FIT. Suitable or appropriate. Whisnant v. State,
39 Okl.Cr. 214, 264 P. 837, 839. Conformable to a
duty. Adapted to, designed, prepared. Thomas v.
State, 34 Okl.Cr. 49, 244 P. 816. Proper. Hanes v.
Southern Public Utilities Co., 191 N.C. 13, 131 S.E.
402, 406.
FIXED ASSET. An asset essential to continuance of undertaking and proper operation of business. Ruden v. City of Platte, 62 S.D. 175, 252
N.W. 32.
FIT, n. In medical jurisprudence, an attack or
spasm of muscular convulsions, generally attended with loss of self-control and of consciousness;
FIXED CAPITAL. Cost of total plant and general equipment. Lindheimer v. Illinois Bell Telephone Co., Ill., 292 U.S. 151, 54 S.Ct. 658, L.Ed.
1182.
765
FIXED
FIXED INDEBTEDNESS. An established or settled indebtedness; not contingent. State ex rel.
Hawkins v. State Board of Examiners, 97 Mont.
441, 35 P.2d 116, 120.
FIXED LIABILITIES. Those certain and definite as to both obligation and amount. National
Commercial Title & Mortgage Guaranty Co. v.
City of Newark, 18 N.J.Misc. 186, 11 A.2d 759, 763.
FIXED OPINION. A conviction, prejudgment,
disqualifying juror to impartially consider whole
evidence and apply free from bias law as given in
charge by court. Peterson v. State, 227 Ala. 361,
150 So. 156, 159.
FIXED PRICES. Agreed prices. United States
v. Food and Grocery Bureau of Southern California, D.C.CaI., 43 F.Supp. 966, 972.
FIXED SALARY. One which is definitely ascertained and prescribed as to amount and time of
payment, and does not depend upon the receipt
of fees or other contingent emoluments; not necessarily a salary which cannot be changed by competent authority. Sharpe v. Robertson, 5 Grat.,
Va., 518; Hedrick v. U. S., 16 Ct.C1. 101. Established or settled, to remain for a time. Board of
Sup'rs of Yavapai County v. Stephens, 177 P. 261,
262, 20 Ariz. 115.
` FIXING BAIL. In practice, rendering absolute
the liability of special bail.
FIXTURE. A chattel attached to realty, In re
Triborough Bridge Approach, City of New York,
159 Misc. 617, 288 N.Y.S. 697, 707. Becoming accessory to it and part and parcel of it. Farmers
& Merchants Bank v. Sawyer, 26 Ala.App. 520,
163 So. 657. And ordinarily the property of the
owner of the land. Hill.; Atlantic Refining Co. v.
Feinberg, 1 W.W.Harr., Del., 183, 112 A. 685, 687;
Red Diamond Clothing Co. v. Steidemann, 169 Mo.
App. 306, 152 S.W. 609, 617.
A. thing is deemed to be affixed to land when it is attached to it by roots, imbedded in it, permanently resting
upon it, or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or
screws. Civ.Code Cal. § 660; Big Sespe Oil Co. v. Cochran,
C.C.A.Cal., 276 F. 216, 225.
Ordinarily, requisites are actual annexation to realty,
or something appurtenant thereto, appropriation to use or
purpose of realty, and intention to make article permanent
accession to freehold as gathered from nature of articles
affixed, relation and situation of person making annexation, structure and mode of annexation, and purpose or
use for which it has been made. Bankers Life Ins. Co. v.
Ohrt, 131 Neb. 858, 270 N.W. 497, 502.
It has been said, however, that a "fixture" formerly
meant any chattel which on becoming affixed to the soil
became a part of the realty; but it now means those things
which formed an exception to that rule and can be removed by the person who affixed them to the soil, L.R. 4
Ex. 328; if they can be taken away without material injury to the realty. Boise Ass'n of Credit Men v. Ellis, 26
Idaho, 438, 144 P. 6, 9, L.R.A.1915E, 917.
It has also been said that it is generally understood to
comprehend any article which a tenant has the power to
remove. Sheen v. Rickie, 5 Mees. & W. 174; Rogers v. Gilinger, 30 Pa. 185, 189, 72 Am. Dec. 694.
The general result seems to be that three views have
been taken. One is that "fixture" means something which
has been affixed to the realty, so as to become a part of it;
it is fixed, irremovable. An opposite view is that "fixture"
means something which appears to be a part of the realty,
but is not fully so; it is only a chattel fixed to it, but removable. An intermediate view is that "fixture" means a
chattel annexed, affixed, to the realty, but imports nothing as to whether it is removable; that is to be determined by considering its circumstances and the relation
of the parties. Abbott; New Castle Theater Co. v. Ward,
57 Ind.App. 473, 104 N.E. 526, 527; Review Printing Co.
v. Hartford Fire Ins. Co., 133 Minn. 213, 158 N.W. 39, 40.
Things fixed or affixed to other things. The rule of law
regarding them is that which is expressed in the maxim,
"accessio cedit principali," "the accessory goes with, and
as part of, the principal subject-matter." Brown.
That which is fixed or attached to something
permanently as an appendage, and not removable.
Webster. Something fixed or immovable. Worcester.
A piece of metal having the same function as a jig, except that the operation upon the casting, which it is designed to facilitate, is an operation of grooving and planing, instead of drilling holes. Commonwealth Trust Co.
of Pittsburgh v. Harkins, 312 Pa. 402, 167 A. 278, 280.
Agricultural fixtures. Those annexed for the purpose
of farming. In re Shelar, D.C.Pa., 21 F.2d 136, 138.
Domestic fixtures. All such articles as a tenant attaches
to a dwelling house in order to render his occupation more
comfortable or convenient, and which may be separated
from it without doing substantial injury, such as furnaces,
stoves, cupboards, shelves, bells, gas fixtures, or things
merely ornamental, as painted wainscots, pier and chimney
glasses, although attached to the walls with screws, matble
chimney pieces, grates, beds nailed to the walls, window
blinds and curtains. Wright v. Du Bignon, 40 S.E. 747,
114 Ga. 765, 57 L.R.A. 669.
Trade fixtures. Articles placed in or attached to rented
buildings by the tenant, to prosecute the trade or business
for which he occupies the premises, or to be used in connection with such business, or promote convenience and
efficiency in conducting it. Herkimer County L. & P. Co.
v. Johnson, 37 App.Div. 257, 55 N.Y.Supp. 924; Brown v.
Reno Electric L. & P. Co., C.C.Nev., 55 F. 231; Northwestern Lumber & Wrecking Co. v. Parker, 125 Minn. 107,
145 N.W. 964, 965. Such chattels as merchants usually possess and annex to the premises occupied by them to enable them to store, handle, and display their goods, which
are generally removable without material injury to the
premises. Lovett v. Bermingham-Seaman-Patrick Co., 192
Mich. 372, 158 N.W. 881, 883.
FLACO. A place covered with standing water.
FLAG. A national standard on which are certain
emblems; ark ensign; a banner.
It is carried by soldiers, ships, etc., and commonly displayed at forts and many other suitable places.
In common parlance, the word "flag," when used as denoting a signal, does not necessarily mean the actual use
of a flag, but by figure of speech the word is used in the
secondary sense and signifies a signal given as with a flag,
that is to say, as by a waiving of the hand for the purpose
of communicating information. Bergfeld v. Kansas City
Rys. Co., 285 Mo. 654, 227 S.W. 106, 110.
FLAG, DUTY OF THE. This was an ancient ceremony in acknowledgment of British sovereignty
over the British seas, by which a foreign vessel
struck her flag and lowered her top-sail on meeting the British flag.
FLAG, LAW OF. In maritime law. The law of
that nation or country whose flag is flown by a
particular vessel.
A shipowner who sends his vessel into a foreign port
gives notice by his flag to all who enter into contracts
with the master that he intends the law of that flag to
regulate such contracts, and that they must either submit
766
FLETA
to its operation or not contract with him. Ruhstrat v.
People, 185 Ill. 133, 57 N.E. 41, 49 L.R.A. 181, 76 Am.St.Rep.
30.
single family. Cent.Dict. A building, the various
floors of which are fitted up as flats, either residential or business.
FLAG OF THE UNITED STATES. By the act entitled "An act to establish the flag of the United
States," (Rev.St. §§ 1791, 1792), it was provided
"that, from and after the fourth day of July next,
the flag of the United States be thirteen horizontal stripes, alternate red and white; that the union be twenty stars, white in a blue field; that, on
the admission of every new state into the Union,
one star be added to the union of the flag; and
that such addition shall take effect on the fourth
day of July then next succeeding such admission." See Act July 30, 1947, c. 389, §§ 1, 2, 61
Stat.. 641; 4 U.S.C.A. §§ 1, 2.
A contrivance upon which lumber is piled and
is not movable by wheels affixed thereto but must
be moved by the use of jacks. Mengel Co. v. Parker, 192 Miss. 634, 7 So.2d 521, 522.
FLATTERY. False or excessive praise, insincere
complimentary language or conduct. Smith v.
State, 13 Ala.App. 399, 69 So. 402, 404.
FLAVIANUM JUS. In Roman law, the title of a
book containing the forms of actions, published by
Cneius Flavius, A. U. C. 449. Mackeld.Rom.Law,
§ 39. Calvin.
FLECTA. A feathered or fleet arrow. Cowell.
FLAG OF TRUCE. A white flag displayed by one
of two belligerent parties to notify the other party
that communication and a cessation of hostilities
are desired.
FLAGELLAT. Whipped; scourged. An entry on
old Scotch records. 1 Pitc.Crim.Tr. pt. 1, p. 7.
FLAGRANS. Lat. Burning; raging; in actual
perpetration.
FLAGRANS BELLUM. A war actually going on.
FLAGRANS CRIMEN. In Roman law, a fresh
or recent crime. This term designated a crime
in the very act of its commission, or while it was
of recent occurrence.
FLAGRANT DELIT. In French law, a crime
which is in actual process of perpetration or which
has just been committed. Code d'Instr. Crim. art.
41.
FLAGRANT NECESSITY. A case of urgency rendering lawful an otherwise illegal act, as an assault to remove a man from impending danger.
FLAGRANTE BELLO. During an actual state of
war.
FLAGRANTE DELICTO. In the very act of corm
mitting the crime. 4 Bl.Comm. 307.
FLAGRANTLY AGAINST EVIDENCE. Without
any substantial support in evidence. Williams v.
Commonwealth, 276 Ky. 754, 125 S.W.2d 221, 223.
So much against weight of evidence as to shock
conscience and clearly indicate passion and prejudice of jury. Smith v. Commonwealth, 216 Ky. 813,
288 S.W. 752, 754.
FLASH CHECK. A check drawn upon a banker
by a person who has no funds at the banker's and
knows that such is the case.
FLAT. A place covered with water too shallow
for navigation with vessels ordinarily used for
commercial purposes. The space between high
and low water mark along the edge of an arm of
the sea, bay, tidal river, etc. Thomas v. Hatch, 23
F.Cas. 946; Church v. Meeker, 34 Conn. 424; Jones
v. Janney, 8 Watts & S., Pa., 443, 42 Am.Dec. 309.
A floor or separate division of a floor, fitted for
housekeeping and designed to be occupied by a
FLEDWITE. A discharge or freedom from
amercements where one, having been an outlawed
fugitive, cometh to the place of our lord of his own
accord. Termes de la Ley.
The liberty to hold court and take up the amercements for beating and striking. Cowell.
The fine set on a fugitive as the price of obtaining the king's freedom. Spelman.
FLEE FROM JUSTICE. Removing one's self
from or secreting one's self within jurisdiction
wherein offense was committed, Renner v. Renner,
13 N.J.Misc. 749, 181 A. 191, or leaving one's home,
residence, or known place of abode, or concealing
one's self therein, with intent, in either case, to
avoid detection or punishment for some public
offense. Streep v. U. S., 160 U.S. 128, 16 S.Ct. 244,
40 L.Ed. 365; Lay v. State, 42 Ark. 110; U. S. v.
O'Brian, 3 Dill. 381, F.Cas.No.15,908.
FLEE TO THE WALL. A metaphorical expression, used in connection with homicide done in selfdefense, signifying the exhaustion of every possible means of escape, or of averting the assault,
before killing the assailant.
FLEET. A place where the tide flows; a creek,
or inlet of water; a company of ships or navy; a
prison in London (so called from a river or ditch
formerly in its vicinity,) now abolished by 5 & 6
Vict. c. 22. See Fleta.
FLEM. In Saxon and old English law, a fugitive
bondman or villein. Spelman.
The privilege of having the goods and fines of
fugitives.
FLEMENE FRIT, FLEMENES FRINTHE, OR
FLYMENA FRYNTHE. (A corrupt pseudo-archaic form is ftemens-firth, representing the old
law Latin form, ftemenaferth, of the Anglo-Saxon
fiyman fyrmth or flymena fyrmth. Cent. Diet.)
The reception or relief of a fugitive or outlaw.
Jacob.
FLEMESWITE. The possession of the goods of
fugitives. Fleta, lib. 1, c. 147.
FLET. In Saxon law, land; a house; home.
FLETA. The name given to an ancient treatise
on the laws of England, founded mainly upon the
767
FLEXIBLE
writings of Bracton and Glanville, and supposed
to have been written in the time of Edw. I. The
author is unknown, but it is surmised that he was
a judge or learned lawyer who was at that time
confined in the Fleet prison, whence the name of
the book.
fabrication, such as wool and flax, products in the warehouses of manufacturers or merchants, such as cloth and
linen, and money for wages, and stores. De Laveleye,
Pol.Ec.
FLOATING CHARGE. A continuing charge on
the assets of the company creating it, but permitting the company to deal freely with the property
in the usual course of business until the security
holder shall intervene to enforce his claim. Pennsylvania Co. for Insurance on Lives and Granting
Annuities v. United Railways of Havana & Regla
Warehouses, D.C.Me., 26 F.Supp. 379, 387, 388.
FLEXIBLE PARTICIPATION BANK NIGHT. A
scheme whereby some method is employed by
means of which some persons obtain chances to
win without purchasing theater tickets. Commonwealth v. Lund, 142 Pa.Super. 208, 15 A.2d 839, 842.
FLEXIBLE PARTICIPATION SCHEME. A
scheme whereby sum of money is given to member
of audience holding registered number drawn from
a hopper at theater. The scheme is one form of a
lottery. Commonwealth v. Lund, 142 Pa.Super.
208, 15 A.2d 839, 846.
FLICHWITE. In Saxon law, a fine on account of
brawls and quarrels. Spelman.
FLIGHT. The evading of the course of justice
by voluntarily withdrawing one's self in order to
avoid arrest or detention, or the institution or continuance of criminal proceedings, regardless of
whether one leaves jurisdiction. Commonwealth
v. Myers, 131 Pa.Super. 258, 200 A. 143, 146. Also
comprehends continued concealment. Commonwealth v. Fusel, 153 Pa.Super. 617, 35 A.2d 93, 95.
"Flim-flam" is a form of bunco or
confidence game. Commonwealth v. Townsend,
149 Pa.Super. 337, 27 A.2d 462, 463.
FLOAT. Checks in process of collection. Lewis
v. West Side Trust & Savings Bank, 376 Ill. 23, 32
N.E.2d 907, 914; Hillmer v. Chicago Bank of Commerce, 375 Ill. 266, 31 N.E.2d 309, 316.
In American land law, especially in the western
states, a certificate authorizing the entry, by the
holder, of a certain quantity of land not yet specifically selected or located. U. S. v. Central Pac. R.
Co., C.C.Cal., 26 F. 480; Hays v. Steiger, 76 Cal.
555, 18 P. 670; Wisconsin Cent. R. Co. v. Price
County, 133 U.S. 496, 10 S.Ct. 341, 33 L.Ed. 687.
FLOATABLE. Used for floating. A floatable
stream is a stream used for floating logs, rafts,
etc. Gerrish v. Brown, 51 Me. 260, 81 Am.Dec. 569;
Gaston v. Mace, 33 W.Va. 14, 10 S.E. 60, 5 L.R.A.
392, 25 Am.St.Rep. 848; Fortson Shingle Co. v.
Skagland, 77 Wash. 8, 137 P. 304, 305.
FLOATING DEBT. Loans for which no permanent provision was required to be made, which
have been obtained for temporary purposes, with
intention of paying them off within a brief period.
State Budget Commission v. Lebus, 244 Ky. 700,
51 S.W.2d 965.
Lawful and valid claims against the corporation
for the payment of which there is no money in the
corporate treasury specifically designed, nor any
taxation nor other means of providing money to
pay particularly provided. People v. Wood, 71 N.
Y. 374; City of Huron v. Second Ward Say . Bank,
S.D., 30 C.C.A. 38, 86 F. 276, 49 L.R.A. 534.
Debt not in the form of bonds or stocks bearing
regular interest. Pub.St.Mass.1882, p. 1290. State
v. Faran, 24 Ohio St. 541; People v. Carpenter, 31
App.Div. 603, 52 N.Y.S. 781.
FLOATING POLICY. A policy intended to supplement specific insurance on property and attaches
only when the latter ceases to cover the risk, and
the purpose of such policy is to provide indemnity
for property which cannot, because of its frequent
change in location and quantity, be covered by specific insurance. Davis Yarn Co. v. Brooklyn Yarn
Dye Co., 293 N.Y. 236, 56 N.E.2d 564, 570.
FLOATING SECURITY. An equitable charge on
the assets for the time being of a going concern.
Lord Macnaghten in Government Stock Inv. Co.
v. Manila Ry. Co., [18971 A.C. 81. Pennsylvania
Co. for Insurance on Lives and Granting Annuities
v. United Railways of Havana & Regla Warehouses, D.C.Me., 26 F.Supp. 379, 387.
FLODE-MARK. Flood-mark, high-water mark.
The mark which the sea, at flowing water and
highest tide, makes on the shore. Blount.
FLOGGING. Thrashing or beating with a whip
or lash.
FLOATING BOG. A mass of grass reeds or other acquatic vegetation growing and floating on the
water. Attorney General v. Bay Boom Wild Rice
& Fur Farm, 172 Wis. 363, 178 N.W. 569, 572.
FLOOD. An inundation of water over land not
FLOATING CAPITAL (or circulating capital).
Capital retained for the purpose of meeting current expenditure.
The capital which is consumed at each operation
of production and reappears transformed into new
products.
Ordinary and extraordinary floods. Extraordinary or
unprecedented floods are floods which are of such unusual
occurrence that they could not have been foreseen by men
of ordinary experience and prudence. Ordinary floods are
those, the occurrence of which may be reasonably anticipated from the general experience of men residing in the
region where such floods happen. Soules v. Northern Pac.
Ry. Co., 34 N.D. 7, 157 N.W. 823, 830, L.R.A.1917A, 501;
Eikland v. Casey, C.C.A.Alaska, 12 A.L.R. 179, 266 F. 821,
823; Clements v. Phoenix Utility Co., 119 Kan. 190, 237 P.
1062, 1065.
At each sale of these products the capital is represented.
In cash, and it is from its transformations that profit is derived. Floating capital includes raw materials destined for
usually covered by it. Such an accident is an Act
of God. McHenry v. R. Co., 4 Harr. (Del.) 449.
See Act, of God. Of variable meaning. City of
Tulsa v. Grier, 114 Okl. 93, 243 P. 753, 757.
768
FLOWING
FLOOD WATERS. Waters which escape from
stream or other body of water and overflow adjacent territory, Poole v. Sun Underwriters Ins. Co.
of New York, 65 S.D. 422, 274 N.W. 658, 660;
under conditions which do not usually occur.
Thomson v. Public Service Commission, 241 Wis.
243, 5 N.W.2d 769, 771; Everett v. Davis, 18 Cal.
2d 389, 115 P.2d 821, 823, 824.
ing them on the floor of the dealer, so that dealer
may resell automobiles to his retail trade. Associates Discount Corporation v. Haynes Garage,
304 Mass. 526, 24 N.E.2d 685, 687.
Where a stream coming out of the mouth of a canyon
has left a cone of detritus and flows down one side thereof,
but in a time of high water it breaks out of its channel to
flow down the other slope of the cone, such waters are
"flood waters", it being immaterial that the escaping
waters have made for themselves a channel or follow some
natural channel, gulley, or depression. Horton v. Goodenough, 184 Cal. 451, 194 P. 34, 35 ; Motl v. Boyd, 116
Tex. 82, 286 S.W. 458, 468; Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607, 610.
FLOORED. In automobile law. An automobile
is floored when it is financed under a trust receipt
or similar title retention document, whereby retail dealer obtains possession of automobile from
distributor for exhibition and sale through payment to distributor by finance company. Commercial Credit Co. v. Barney Motor Co., 10 Ca1.2d
718, 76 P.2d 1181, 1183; Blashfield, Cyc. of Automobile Law and Prac., Perm. Ed., § 4755.
FLOOR PLANNING. Financing automobiles for
dealers. Associates Discount Corporation v.
Haynes Garage, 304 Mass. 526, 24 N.E.2d 685, 687.
FLOOR. A section of a building between horizontal planes. Lowell v. Strahan, 145 Mass. 1, 12
N.E. 401, 1 Am.St.Rep. 422. A story, including
outer walls. Leominster Fuel Co. v. Scanlon, 243
Mass. 126, 137 N.E. 271, 24 A.L.R. 1459.
The word "floor" may mean the mere bottom plane of an
inclosure or artificial structure, the surface on which we
walk, ride, or travel, or it may mean such surface or plane,
together with the timbers, framework, and materials which
enter into and form part of its construction. So of the
word "flooring," If used without reference to a structure
in its completed form, it would ordinarily convey the idea
of materials suitable for use in constructing a floor, or in
a narrower sense the boards or planks for covering the
framework of a floor. When used with reference to a
completed structure, it may mean either the materials of
which the floor is composed, or the completed floor structure. When not attempting to speak with technical, exactness, the words "floor" and "flooring" may be, and often
are, used as synonymous or interchangeable terms, Cedar
Rapids & M. C. R. Co. v. City of Cedar Rapids, 173 Iowa
386, 155 N.W. 842; Missouri Pac, R. Co. v. Holt, C.C.A.
Ark. 293 F. 155, 157.
A term used metaphorically, in parliamentary
practice, to denote the exclusive right to address
the body in session.
A member who has been recognized by the chairman,
and who is in order, is said to "have the floor," until his
remarks are concluded. Similarly, the "floor of the house"
means the main part of the hall where the members sit,
as distinguished from the galleries, or from the corridors
or lobbies.
In England, the floor of a court is that part between the
judge's bench and the front row of counsel. Litigants appearing in person, in the high court or court of appeal, are
supposed to address the court from the floor.
FLOOR BROKER. Broker's sub-agent. Helfhat v.
Whitehouse, 258 N.Y. 274, 179 N.E. 493, 496.
FLOOR PLAN. A horizontal section drawing
showing the thickness of walls and partitions, arrangement of passages, apartments, and openings
at any floor of a building. Webster.
FLOOR PLAN RULE. Rule by which an owner
who has placed an automobile on the floor of a
retail dealer's showroom for sale is estopped to
deny the title of an innocent purchaser from such
dealer in the ordinary retail dealing, without
knowledge of any conflicting claim. National
Guarantee & Finance Co. v. Russell, Ohio App.,
36 N.E.2d 1015, 1018.
FLOOR PLAN SERVICE. The buying and financing of automobiles by finance company and placBlack's Law Dictionary Revised 4th Ed.-49
FLORENTINE PANDECTS. A copy of the Pandects discovered accidentally about the year 1137,
at Amalphi, a town in Italy, near Salerno.
FLORIN. A coin originally made at Florence,
now of the value of about two English shillings.
FLOTAGES. Such things as by accident float on
the top of great rivers or the sea. Blount.
A commission paid to water bailiffs. Cun.Dict.
FLOTERIAL DISTRICT. A legislative district
which includes within its boundaries several separate districts or political subdivisions which independently would not be entitled to additional
representation but whose conglomerate population
entitles the entire area to another seat in the particular legislative body being apportioned. Kilgarlin v. Martin, D.C.Tex., 252 F.Supp. 404, 419;
Davis v. Mann, Va., 84 S.Ct. 1441, 1446, 377 U.S.
678, 12 L.Ed.2d 609.
FLOTSAM, FLOTSAN. A name for the goods
which float upon the sea when cast overboard for
the safety of the ship, or when a ship is sunk. Distinguished from "jetsam" and "ligan." Bract. lib.
2, c. 5; 5 Coke, 106; 1 B1.Comm. 292.
FLOUD-MARKE. In old English law, high-water
mark; flood-mark. 1 And. 88, 89.
FLOURISH. The act of brandishing or waving;
a swinging or whirling movement as flourish of
a whip or sword; to fling or whirl about while
holding in the hand, brandish, flaunt, as, he- flourished his whip. State v. Boyles, 24 N.M. 464, 174
P. 423.
FLOWAGE. The natural flow or movement of water from an upper estate to a lower one is a servitude which the owner of the latter must bear,
though the flowage be not in a natural water
course with well defined banks. Leidlein v. Meyer,
95 Mich. 586, 55 N.W. 367; Ogburn v. Connor, 46
Cal. 346, 13 Am.Rep. 213; Gray v. McWilliams, 98
Cal. 157, 32 P. 976, 21 L.R.A. 593, 35 Am.St.Rep.
163.
FLOWING. Movement, as if in a current or
stream. Homer Brooke Glass Co. v. HartfordFairmont Co., C.C.A.Conn., 262 F. 427, 431.
769
FLOWING
FLOWING LANDS. Imports raising and setting
back water on another's land, by a dam placed
across a stream or water course which is the natural drain and outlet for surplus water on such
land. Call v. Middlesex County Com'rs, 2 Gray,
Mass., 235.
FLUCTUS. Flood; flood-tide. Bract. fol. 255.
215 N.Y. 400, 109 N.E. 564, 565, Ann.Cas.1917A,
429; Carlisle v. Norris, 157 App.Div. 313, 142 N.
Y.S. 393, 396.
FOAL, v. To bring forth young; said of animals
of the horse family. O'Rear v. Richardson, 17
Ala.App. 87, 81 So. 865, 866.
FOCAGE. House-bote; fire-bote. Cowell.
FLUME. Primarily, a stream or river, but usually
used to designate an artificial channel applied to
some' definite use, and may mean either an open
or a covered aqueduct. Talbot v. Joseph, 79 Or.
308, 155 P. 184, 186.
FOCALE. In old English law, firewood. The
right of taking wood for the fire. Fire-bote. Cunningham.
FLUMEN.
In Roman law, a servitude which consists in the
right to conduct the rain-water, collected from
the roof and carried off by the gutters, onto the
house or ground of one's neighbor. Mackeld.Rom.
Law, § 317; Ersk.Inst. 2, 9, 9. Also a river or
stream.
In old English law, flood; flood-tide.
FODERTORIUM. Provisions to be paid by custom
to the royal purveyors. Cowell.
FLUMINA ET PORTUS PUBLICA SUNT, IDEOQUE JUS PISCANDI OMNIBUS COMMUNE EST.
Rivers and ports are public. Therefore the right
of fishing there is common to all. Day. Ir. K. B.
55; Branch, Princ.
FODDER. Food for horses or cattle. In feudal
law, the term also denoted a prerogative of the
prince to be provided with corn, etc., for his horses
by his subjects in his wars.
FODERUM. See Fodder.
FODINA. A mine. Co.Litt. 6a.
F1EDUS. In international law, a treaty; a league;
a compact.
FCEMINA VIRO CO-OPERTA. A married woman; a feme covert.
FLUVIUS. Lat. A river; a public river; flood;
flood-tide.
FCEMINZE AB OMNIBUS OFFICIIS CIVILIBUS
VEL PUBLICIS REMOTIE SUNT. Women are
excluded from all civil and public charges or offices. Dig. 50, 17, 2; 1 Exch. 645; 6 Mees. & W.
216.
FLUXUS. In old English law, flow. Per fluxum et
refluxum marls, by the flow and reflow of the sea.
Dal. p1.10.
FCEMINZE NON SUNT CAPACES DE PUBLICIS
OFFICIIS. Jenk.Cent. 237. Women are not admissible to public offices.
FLY FOR IT. Anciently, it was the custom in a
criminal trial to inquire after a verdict, "Did he
fly for it?" After the verdict, even if not guilty,
forfeiture of goods followed conviction upon such
inquiry. Abolished by 7 & 8 Geo. IV. c. 28. Wharton.
FCENERATION. Lending money at interest; the
act of putting out money to usury.
FLUMINAZE VOLUCRES. Wild fowl; waterfowl.
11 East, 571, note.
FLYING MACHINE. A heavier-than-air machine
capable of soaring in the air and susceptible to
being guided by a pilot into different altitudes
when aloft. Myers v. United States, Ct.C1., 25 F.
Supp. 500, 501.
FLYING SWITCH. In railroading, a flying switch
is made by uncoupling the cars from the engine
while in motion, and throwing the cars onto the
side track, by turning the switch, after the engine
has passed it upon the main track. Greenleaf v.
Illinois Cent. R. Co., 29 Iowa 39, 4 Am.Rep. 181;
Hanson v. Chicago, M. & St. P. R. Co., 157 Wis.
455, 146 N.W. 524, 525.
FLYMA. In old English law, a runaway; fugitive;
one escaped from justice, or who has no "hlaford."
FLYMAN-FRYMTH. See Flemene Frit.
FLY-POWER. A written assignment in blank,
whereby, on being attached to a stock certificate,
the stock may be transferred. Carlisle v. Norris,
FCENUS. Lat. In the civil law, interest on money; the lending of money on interest.
FCENUS NAUTICUM. Nautical or maritime interest.
FCENUS UNCIARIUM. Interest of one-twelfth,
that is, interest amounting annually to one-twelfth
of the principal, hence at the rate of eight and
one-third per cent. per annum. This was the highest legal rate of interest in the early times of the
Roman republic. See Mackeld.Rom.Law, § 382.
An extraordinary rate of interest agreed to be paid for
the loan of money on the hazard of a voyage; sometimes
called "usura maritima." Dig. 22, 2; Code, 4, 33; 2 Bl.
Comm. 458. The extraordinary rate of interest, proportioned to the risk, demanded by a person, lending money
on a ship, or on "bottomry," as it is termed. The agreement for such a rate of interest is also called "fcenus nauticum." (2 B1.Comm. 458; 2 Steph.Comm. 93.) Mozley
& Whitley.
FU SA. In old records, grass; herbage. 2 Mon.
Angl. 906b; Cowell.
FETICIDE. See Feticide.
FCETURA. In the civil law, the produce of animals, and the fruit of other property, which are
770
FOLLOW
acquired to the owner of such animals and property by virtue of his right. Bowyer, Mod.Civil
Law, c. 14, p. 81
right of folding. The right of fording on another's
land, which is called "common foldage." Co.Litt.
6a, note 1.
FETUS. In medical jurisprudence, an unborn
child. An infant in ventre sa mere.
FOLD-SOKE. A
feudal service which consisted
in the obligation of the tenant not to have a fold
of his own but to have his sheep lie in the lord's
fold.
FOG. In maritime law, any atmospheric condition (including not only fog properly so called,
but also mist or falling snow) which thickens the
air, obstructs the view, and so increases the perils
of navigation. Flint & P. M. R. Co. v. Marine Ins.
Co., C.C.Mich., 71 F. 210; Dolner v. The Monticello,
7 F.Cas. 859.
He was said to be consuetus ad foldam, tried to his lord's
fold. The basis of his service is thus expressed by a recent writer : "It is manure that the lord wants; the demand for manure has played a large part in the history of
the human race." Maitland, Domesday Book 76. In East
Anglia the peasants had sheep enough to make this an important social institution; id. 442.
FOGAGIUM. In old English law, foggage or fog;
FOLDAGE. A privilege possessed in some places
a kind of rank grass of late growth, and not eaten
in summer. Spelman; Cowell.
by the lord of a manor, which consists in the right
of having his tenant's sheep to feed on his fields,
so as to manure the land. The name of foldage is
also given in parts of Norfolk to the customary
fee paid to the lord for exemption at certain times
from this duty. Elton, Com. 45, 46.
FOL
In French feudal law, faith; fealty. Guyot,
Inst.Feod. c. 2.
FOINESUN. In old English law, the fawning of
deer. Spelman.
FOLGARII. Menial servants; followers. Bract.
FOLGERE. In old English law, a freeman, who
FOIRFAULT.
In old Scotch law, to forfeit. 1
How.State Tr. 927.
FOERTHOCHT.
has no house or dwelling of his own, but is the
follower or retainer of another, (heorthfcest,) for
whom he performs certain predial services.
FOITERERS.
FOLGERS. Menial servants or followers. Cowell.
In old Scotch law, forethought;
premeditated. 1 Pitc.Crim.Tr. pt. 1, p. 90.
Vagabonds. Blount.
FOLC-GEMOTE
(spelled, also, folkmote, folcmote,
folkgemote; from folc, people, and gemote, an assembly). In Saxon law, a general assembly of
the people in a town or shire.
It appears to have had judicial functions of a limited
nature, and also to have discharged political offices, such
as deliberating upon the affairs of the commonwealth or
complaining of misgovernment, and probably possessed
considerable powers of local self-government. The name
was also given to any sort of a popular assembly. See
Spelman; Manwood; Cunningham.
FOLC-LAND.
In Saxon law, land of the folk or
people. Land belonging to the people or the public.
Folc-land was the property of the community. It might
be occupied in common, or possessed in severalty; and, in
the latter case, it was probably parceled out to individuals
in the folc-gemote or court of the district, and the grant
sanctioned by the freemen who were there present. But,
while it continued to be folc-land, it could not be alienated
in perpetuity; and therefore, on the expiration of the term
for which it had been granted, it reverted to the community, and was again distributed by the same authority. It
was subject to many burdens and exactions from which
boc-land was exempt. Wharton.
FOLC-MOTE. A general assembly of the people,
under the Saxons. See Folc-Gemote.
FOLC-RIGHT.
FOLGOTH. Official dignity.
FOLIE BRIGHTIQUE, See Insanity.
FOLIE CIRCULAERE, See Insanity.
FOLIO. A leaf. In the ancient lawbooks it was
the custom to number the leaves, instead of the
pages; hence a folio would include both sides of
the leaf, or two pages. The references to these
books are made by the number of the folio, the
letters "a" and "b" being added to show which of
the two pages is intended; thus "Bracton, fol.
100a."
A large size of book, the page being obtained
by folding the sheet of paper once only in the binding. Many of the ancient lawbooks are folios.
When used in connection with legal documents,
it means a certain number of words varying from
72 to 100, but generally in the United States consisting of 100. Reed v. Sackett, 135 Okl. 69, 273
P. 1002, 1004.
In pleading denying allegations of a specified
folio, it refers to a division in a document for purpose of measurement or reference. Mahin v. Mahin, 131 Fla. 546, 179 So. 651.
The common right of all the people. 1 Bl.Comm. 65, 67.
FOLK-LAND; FOLK-MOTE. See Folc-Land;
The jus commune, or common law, mentioned in the
laws of King Edward the Elder, declaring the same
equal right, law, or justice to be due to persons of all degrees. Wharton.
FOLLOW. To
FOLD-COURSE. In English law, land to which
the sole right of folding the cattle of others is
appurtenant. Sometimes it means merely such
Folc-Gemote.
conform to, comply with, or be
fixed or determined by; as in the expressions
"costs follow the event of the suit," "the situs of
personal property follows that of the owner," "the
offspring follows the mother," (partus sequitur
ventrem).
771
FOLLOW
To walk in, to attend upon closely, as a profession or calling. Spears v. Ford, 247 S.W. 713, 197
Ky. 575.
of footgeld is to have the privilege of keeping
dogs in the forest unlawed without punishment
or control. Manwood.
FOLLOWS THE PROPERTY. Synonymous with
"adheres to the property." Tonopah Mining Co.
of Nevada v. Commissioner of Internal Revenue,
C.C.A.3, 127 F.2d 239, 244.
FOOT OF THE FINE. The fifth part of the conclusion of a fine. It includes the whole matter,
reciting the names of the parties, day, year, and
place, and before whom it was acknowledged or
levied. 2 Bl.Comm. 351.
FONDS ET BIENS. Fr. In French law, goods
and effects. Adams v. Akerlund, 168 Ill. 632, 48
N.E. 454.
Including realty. Erickson v. Carlson, 95 Neb.
182, 145 N.W. 352, approved and followed. Engen
v. Union State Bank of Harvard, 118 Neb. 105, 223
N.W. 664, 666.
FONDS PERDUS. In French law, a capital is
said to be invested a fonds perdus when it is stipulated that in consideration of the payment of
an amount as interest, higher than the normal
rate, the lender shall be repaid his capital in
this manner. The borrower, after paying the interest during the period determined, is free as regards the capital itself. Arg.Fr.Merc.Law, 560.
FONSADERA. In Spanish law, any tribute or
loan granted to the king for the purpose of enabling him to defray the expenses of a war.
FONTANA.
233.
A
fountain or spring. Bract. fol.
FOOT. A measure of length containing twelve
inches or one-third of a yard. Spicer v. Hartford
Fire Ins. Co. of Hartford, Conn., 171 Va. 428, 199
S.E. 499, 501.
The base, bottom, or foundation of anything;
and, by metonomy, the end or termination; as
the foot of a fine.
The terminal part of the leg. Reno v. Holmes,
238 Mich. 572, 214 N.W. 174, 175. That part of
leg at or below ankle joint. Mills v. Mills & Connelly, 214 Ky. 675, 283 S.W. 1010, 1011. Embraces
the arch. Trustees for Arch Preserver Shoe Patents v. James McCreery & Co., Cust. & Pat.App.,
49 F.2d 1068, 1071.
FOOT ACRE. One acre of coal one foot thick.
In re Hudson Coal Co., 327 Pa. 247, 193 A. 8, 10.
FOOT DROP. A loss of ability to turn the foot
inward, a loss of ability to extend the toes and
to raise them, and a loss of sensation in the lower frontal portions of the leg below the knee, and
the greater portion of the top of the foot. Engelking v. Carlson, Cal.App., 80 P.2d 96, 97.
FOOT-FRONTAGE RULE. Under rule, assessment is confined to actual frontage on line of improvement, and depth of lot, number or character
of improvements, or value thereof, is immaterial.
Borough of Berwick v. Smethers, 105 Pa.Super.
40, 160 A. 148.
FOOTGELD. In the forest law, an amercement
for not cutting out the ball or cutting off the claws
of a dog's feet, (expeditating, him.) To be quit
FOOT POUND. A unit of energy, or work, equal
to work done in raising one pound avoirdupois
against the force of gravity to the height of one
foot. Webster, Dict. Healey v. Moran Towing
& Transportation Co., C.C.A.N.Y., 253 F. 334, 337.
FOOTPRINTS. In the law of evidence, impressions made upon earth, snow, or other surface by
the feet of persons, or by the shoes, boots, or other
covering of the feet. Burrill, Circ.Ev. 264.
FOR. Fr. In French law, a tribunal. Le for interieur, the interior forum; the tribunal of conscience. Poth.Obl. pt. 1, c. 1, § 1, art. 3, § 4.
FOR. In behalf of, in place of, in lieu of, instead
of, representing, as being which, or equivalent to
which, and sometimes imports agency. Medler
v. Henry, 44 N.M. 63, 97 P.2d 661, 662.
During; throughout; for the period of; as,
where a notice is required to be published "for"
a certain number of weeks or months. Wilson v.
Northwestern Mut. L. Ins. Co., C.C.A.Kan., 65 F.
39, 12 C.C.A. 505; Northrop v. Cooper, 23 Kan.
432; Burdine v. Sewell, 92 Fla. 375, 109 So. 648,
653. Duration, when put in connection with time.
Progressive Building & Loan Ass'n v. McIntyre,
169 Tenn. 491, 89 S.W.2d 336, 337.
In consideration for; as an equivalent for; in
exchange for; in place of; as where property is
agreed to be given "for" other property or "for"
services. Norton v. Woodruff, 2 N.Y. 153; Duncan v. Franklin Tp., 10 A. 546, 43 N.J.Eq. 143;
Mudge v. Black, Sheridan & Wilson, C.C.A.Mo.,
224 F. 919, 921.
Belonging to, exercising authority or functions
within; as, where one describes himself as "a
notary public in and for the said county."
By reason of; with respect to; for benefit of;
for use of; in consideration of. Basler v. Sacramento Electric, Gas & Ry. Co., 166 Cal. 33, 134 P.
993, 994; Elmore-Schultz Grain Co. v. Stonebraker, 202 Mo.App. 81, 214 S.W. 216, 221; Work v.
U. S., ex rel. Rives, 54 App.D.C. 84, 295 F. 225,
226. The cause, motive or occasion of an act,
state or condition. American Ins. Co. v. Naylor,
103 Colo. 461, 87 P.2d 260, 265. Used in sense of
"because of," "on account of," or "in consequence
of." Kelly v. State Personnel Board of California, 31 Ca1.App.2d 443, 88 P.2d 264, 266. By means
of, or growing out of. Cormier v. Hudson, 284
Mass. 231, 187 N.E. 625, 626.
It connotes the end with reference to which
anything is, acts, serves, or is done. Bates v.
Schillinger, 128 Me. 14, 145 A. 395, 399. In consideration of which, in view of which, or with reference to which, anything is done or takes place.
772
FORCE
A loan "for use" is one in which the bailee has the right
to use and enjoy the article, but without consuming or
destroying it, in which respect it differs from a loan "for
consumption." In re Houk's Estate, 186 Cal. 643, 200 P.
417, 418.
Fleming v. Atlantic Co., D.C.Ga., 40 F.Supp. 654,
660. In direction of; with view of reaching; with
reference to needs, purposes or uses of; appropriate or adapted to; suitable to purpose, requirement, character or state of. Robert v. Clapp Co.
v. Fox, 124 Ohio St. 331, 178 N.E. 586, 588.
FOR VALUE. See Holder.
FOR VALUE RECEIVED. See Value Received.
FOR ACCOUNT OF. Introduces name of person
entitled to receive proceeds of indorsed note or
draft. Freiberg v. Stoddard, 161 Pa. 259, 28 A.
1111; White v. Miners' Nat. Bank, 102 U.S. 658,
26 L.Ed. 250; Equitable Trust Co. of New York
v. Rochling, 275 U.S. 248, 48 S.Ct. 58, 59, 72 L.Ed.
264.
FOR WHOM IT MAY CONCERN. Phrase creates presumption of intention on part of named
insured to cover any persons who may have an
insurable interest in the property. Allemannia
Fire Ins. Co. v. Winding Gulf Collieries, D.C.W.
Va., 60 F.Supp. 65, 68.
FOR AND DURING SUCH TIME, FOR SO LONG
AS. Temporarily. Burdine v. Sewell, 92 Fla. 375,
109 So. 648, 653.
FORAGE. Hay and straw for horses, particularly
in the army. Jacob.
FORAGIUM. Straw when the corn is threshed
out. Cowell.
FOR AT LEAST. As applied to a number of days
required for notice this phrase includes either the
first or last day, but not both. Stroud v. Water
Co., 56 N.J.L. 422, 28 A. 578.
FORAKER ACT. A name usually given to the
act of congress of April 12, 1900, 31 Stat.L. 77, c.
191 (48 U.S.C.A. § 731 et seq.), which provided
civil government for Porto Rico. See a synopsis
of it by Harlan, J., in Downes v. Bidwell, 182 U.S.
244, 390, 21 S.Ct. 770, 45 L.Ed. 1088.
FOR CAUSE. Means for reasons which law and
public policy recognize as sufficient warrant for
removal and such cause is "legal cause" and not
merely a cause which the appointing power in
the exercise of discretion may deem sufficient.
State ex rel. Nagle v. Sullivan, 98 Mont. 425, 40
P.2d 995, 998, 99 A.L.R. 321.
FORANEUS. One from without; a foreigner;
a stranger. Calvin.
FORATHE. In forest law, one who could make
oath, i. e., bear witness for another. Cowell;
Spelman.
FOR COLLECTION. A form of indorsement on
a note or check where it is not intended to transfer title to it or to give it credit or currency, but
merely to authorize the transferee to collect the
amount of it. Central R. Co. v. Bank, 73 Ga. 383;
Sweeny v. Easter, 1 Wall. 166, 17 L.Ed. 681. But
see In re Ziegenhein, Mo.App., 187 S.W. 893, 895.
FORBALCA. In old records, a forebalk; a balk
(that is, an unplowed piece of land) lying forward
or next the highway. Cowell.
FORBANNITUS. A pirate; an outlaw; one banished.
FOR HIRE OR REWARD. To transport passengers or property of other persons than owner or
operator of the vehicle for a reward or stipend,
to be paid by such passengers, or persons for
whom such property is transported, to owner or
operator. Michigan Consol. Gas Co. v. Sohio Petroleum Co., 32 N.W.2d 353, 356, 321 Mich. 102.
FORBARRER. L.Fr. To bar out; to preclude;
hence, to estop.
FORBATUDUS. In old English law, the aggressor slain in combat. Jacob.
FOR PURPOSE OF. With the intention of.
State v. Derrickson, 1 W.W.Harr., Del., 342, 114 A.
286, 288.
FOR THAT. In pleading, words used to introduce the allegations of a declaration. "For that"
is a positive allegation; "For that whereas" is a
recital. Ham. N.P. 9.
FOR THAT WHEREAS. In pleading, formal
words introducing the statement of the plaintiff's
case, by way of recital, in his declaration, in all
actions except trespass. 1 Instr.Cler. 170; 1 Burrill, Pr. 127. In trespass, where • there was no
recital, the expression used was, "For that." Id.;
1 Inst.Cler. 202.
FOR USE. (1) For the benefit or advantage of
another. Thus, where an assignee is obliged to
sue in the name of his assignor, the suit is entitled "A. for use of B. v. C." (2) For enjoyment
or employment without destruction.
FORBEARANCE. Act by which creditor waits
for payment of debt due him by debtor after it
becomes due. Upton v. Gould, 64 Cal.App.2d 814,
149 P.2d 731, 733. A delay in enforcing rights.
Shaw v. Philbrick, 129 Me. 259, 151 A. 423, 74 A.
L.R. 290. Indulgence granted to a debtor. Dry
Dock Bank v. American Life Ins., etc., Co., 3 N.
Y. 354.
Refraining from action. The term is used in
this sense in general jurisprudence, in contradistinction to "act."
Within usury law, term signifies contractual obligation
of lender or creditor to refrain, during given period of
ti me, from requiring borrower or debtor to repay loan or
debt then due and payable. Hafer v. Spaeth, 22 Wash.2d
378, 156 P.2d 408, 411.
FORCE. Power dynamically considered, that is,
in motion or in action; constraining power, compulsion; strength directed to an end. Usually the
word occurs in such connections as to show that
unlawful or wrongful action is meant. Watson v.
Railway Co., 7 Misc.Rep. 562, 28 N.Y.S. 84; Plank
773
FORCE
Road Co. v. Robbins, 22 Barb., N.Y., 667; Temple
Lumber Co. v. Living, Tex.Civ.App., 289 S.W. 746,
749; Hafner Mfg. Co. v. City of St. Louis, 262 Mo.
621, 172 S.W. 28, 34.
Unlawful violence. It is either simple, as entering upon another's possession, without doing any
other unlawful act; compound, when some other
violence is committed, which of itself alone is
criminal; or implied, as in every trespass, rescous,
or disseisin. Lambert v. Helena Adjustment Co.,
69 Mont. 510, 222 P. 1057, 1058.
It may mean either exact pressure times exact area
to which the pressure is applied, or it may mean simply
an operative physical power without taking account of the
exact quantity applied. Hydraulic Press Corporation v.
Coe, 77 U.S.App.D.C. 251, 134 F.2d 49, 56.
Such display of physical power as is reasonably calculated to inspire fear of physical harm to those opposing
possession of premises by trespasser. Smith .v. Sinclair
Refining Co., Tex.Civ.App., 77 S.W.2d 894, 895.
Terms "violence" and "force" are synonymous when used
in relation to assault. People v. James, 9 Cal.App.2d 162,
48 P.2d 1011, 1012.
Power statically considered; that is at rest, or
latent, but capable of being called into activity
upon occasion for its exercise. Efficacy; legal validity. This is the meaning when we say that a
statute or a contract is "in force."
As used in divorce statute, "force" or "coercion" are
synonymous. Santer v. Santer, 115 Pa. Super. 1, 174 A.
651, 652.
In old English law, a technical term applied to
a species of accessary before the fact.
In Scotch law, coercion; duress. Bell.
—Of force. See that title.
FORCE AND ARMS. A phrase used in declarations of trespass and in indictments, but now unnecessary in declarations, to denote that the act
complained of was done with violence. 2 Chit.P1.
846, 850.
FORCE AND FEAR, called also "vi metuque,"
means that any contract or act extorted under
the pressure of force (vis) or under the influence
of fear ( metus) is voidable on that ground, provided, of course, that the force or the fear was
such as influenced the party. Brown.
FORCE MAJESTURE. Includes lightnings, earthquakes, storms, flood, sunstrokes, freezing, etc.,
wherein latter two can be considered hazards
in contemplation of employer within Compensation Act. Fogg v. Van Saun Coal Co., N.J.Dept.
Labor, 12 N.J.Misc. 680, 174 A. 419, 420.
FORCE MAJEURE. Fr. In the law of insurance, superior or irresistible force. Emerig. Tr.
des Ass. c. 19
FORCED HEIRS. Those persons whom the testator or donor cannot deprive of the portion of
his estate reserved for them by law, except in
cases where he has a just cause to disinherit them.
Civil Code La. art. 1495. And see Crain v. Crain,
17 Tex. 90; Hagerty v. Hagerty, 12 Tex. 456; Miller v. Miller, 105 La. 257, 29 So. 802.
FORCED SALE. In practice, a sale made at the
time and in the manner prescribed by law, in
virtue of execution issued on a judgment already
rendered by a court of competent jurisdiction;
a sale made under the process of the court, and
in the mode prescribed by law. Sampson v. Williamson, 6 Tex. 110, 55 Am.Dec. 762.
A sale against the consent of the owner. The term
should not be deemed to embrace a sale under a power in
a mortgage. Patterson v. Taylor, 15 Fla. 336.
FORCES. The military and naval power of the
country.
FORCHEAPUM. Pre-emption; forestalling the
market. Jacob.
FORCIBLE DETAINER. Exists where one originally in rightful possession of realty refuses
to surrender it at termination of his possessory
right. Sayers & Muir Service Station v. Indian
Refining Co., 266 Ky. 779, 100 S.W.2d 687, 689.
The offense of violently keeping possession of lands and
tenements, with menaces, force, and arms, and without
the authority of law. 4 Bl.Comm. 148; 4 Steph.Comm.
280.
Forcible detainer may ensue upon a peaceable entry, as
well as upon a forcible entry; but it is most commonly
spoken of in the phrase "forcible entry and detainer."
FORCIBLE ENTRY. Violently taking possession
of lands and tenements with menaces, force, and
arms, against the will of those entitled to the
possession, and without the authority of law.
4 31. Comm. 148; 4 Steph. Comm. 280; Code Ga.
1882, § 4524 (Pen. Code, 1910, § 344). Accompanied with circumstances tending to excite terror in
the occupant, and to prevent him from maintaining his rights. Barbee v. Winnsboro Granite Corporation, 190 S.C. 245, 2 S:E.2d 737, 739. Angry
words and threats of force may be sufficient. Calidino Hotel Co. of San Bernardino v. Bank of
America Nat. Trust & Savings Ass'n, 31 Cal.App.
2d 295, 87 P.2d 923, 931.
Every person is guilty of forcible entry who either (1)
by breaking open doors, windows, or other parts of a
house, or by any kind of violence or circumstance of terror, enters upon or into any real property; or (2) who,
after entering peaceably upon real property, turns out
by force, threats, or menacing conduct the party in possession. Code Civil Proc.Cal. § 1159.
In many states, an entry effected without consent of
rightful owner, or against his remonstrance, or under circumstances which amount to no more than a mere trespass, is now technically considered "forcible," while a
detainer of the property consisting merely in the refusal to
surrender possession after a lawful demand, is treated as a
"forcible" detainer, the "force" required at common law
being now supplied by a mere fiction. See Vernon's Tex.
Ann.Civ.St. art. 3975; Goldsberry v. Bishop, 2 Duv., Ky.,
144; Wells v. Darby, 13 Mont. 504, 34 P. 1092; Willard
v. Warren, 17 Wend., N.Y. 261; California Products v.
Mitchell, 52 Cal.App. 312, 198 P. 646.
FORCIBLE ENTRY AND DETAINER. A summary proceeding for restoring to possession of
land one who is wrongfully kept out or has been
wrongfully deprived of the possession. Wein v.
Albany Park Motor Sales Co., 312 Ill.App. 357,
38 N.E.2d 556, 559.
The title cannot be inquired into for any purpose. Davis
v. Robinson, 374 Ill. 553, 30 N.E.2d 52, 54. The inquiry is
confined to the actual and peaceable possession of the
plaintiff and the unlawful or forcible ouster or detention
774
FOREIGN
The term is also loosely applied to any of the various
methods, statutory or otherwise, known in different jurisdictions, of enforcing payment of the debt secured by a
mortgage, by taking and selling the mortgaged estate.
Dikeman v. Jewel Gold Mining Co., C.C.A.Alaska, 13 F.2d
118; Realty Mortgage Co. v. Moore, 80 Fla. 2, 85 So. 155,
156.
Foreclosure is also applied to proceedings founded upon
some other liens; thus there are proceedings to foreclose a
mechanic's lien. Insurance Co. of North America v. Cheathem, 221 Ky. 668, 299 S. W. 545, 547. It is a proceeding in
court or out of court, when provided for by a valid contract, to subject property or part thereof covered by a lien
to payment of debt secured by the lien, and it has effect of
extinguishing all right, title, or interest, if any, of defendants in the property. Southwestern Peanut Growers
Ass'n v. Womack, Tex.Civ.App., 179 S.W.2d 371, 373.
Statutory foreclosure. The term is sometimes applied
to foreclosure by execution of a power of sale contained
in the mortgage, without recourse to the courts, as it must
conform to the provisions of the statute regulating such
sales. See Mowry v. Sanborn, 11 Hun, N.Y., 548.
Strict foreclosure. A decree of strict foreclosure of a
mortgage finds the amount due under the mortgage, orders
its payment within a certain limited time, and provides
that, in default of such payment, the debtor's right and
equity of redemption shall be forever barred and foreclosed its effect is to vest the title of the property absolutely in the mortgagee, on default in payment, without
any sale of the property. Champion v. Hinkle, 45 N.J.Eq.
162, 16 A. 701; Lightcap v. Bradley, 186 Ill. 510, 58 N.E.
221; Warner Bros. Co. v. Freud, 138 Cal. 651, 72 P. 345.
by defendant; the object of the law being to prevent the
disturbance of the public peace by the forcible assertion
of a private right. Gore v. Altice, 33 Wash. 335, 74 P. 556;
Eveleth v. Gill, 97 Me. 315, 54 A. 757; Harris v. Harris,
190 Ala. 619, 67 So. 465, 466; Long v. Bagwell, 38 Okl. 312,
133 P. 50, 51.
FORCIBLE TRESPASS. In North Carolina, this
is an invasion of the rights of another with respect to his personal property, of the same character, or under the same circumstances, which
would constitute a "forcible entry and detainer"
of real property at common law. It consists in
taking or seizing the personal property of another by force, violence, or intimidation or in
forcibly injuring it. State v. Lawson, 123 N.C.
740, 31 S.E. 667, 68 Am.St.Rep. 844; State v. Holder, 188 N.C. 561, 125 S.E. 113, 114.
There must be actual violence used, or such demonstration of force as is calculated to intimidate or tend to a
breach of the peace. It is not necessary that the person be
actually put in fear. State v. Stinnett, 167 S.E. 63, 64, 203
N.C. 829.
FORDA. In old records, a ford or shallow, made
by damming or penning up the water. Cowell.
FORDAL. A butt or headland, jutting out upon
other land. Cowell.
FORDANNO. In old European law, he who first
assaulted another. Spelman.
FORDIKA. In old records, grass or herbage
growing on the edge or bank of dykes or ditches.
Cowell.
FORE. Sax. Before. Fr. Out. Kelham.
git
FORE—MATRON. In a jury of women this word
corresponds to the foreman of a jury. She was
sworn in separately; 8 Carr. & P. 264.
FORE—OATH. Before the Norman Conquest, an
oath required of the complainant in the first instance (in the absence of manifest facts) as a
security against frivolous suits. Pollock, 1 Sel.
Essays Anglo-Amer. Leg. Hist. 93.
FOREBALK. See Headland.
FORECLOSE. To shut out; to bar; to terminate. State v. Darling, 39 S.D. 558, 165 N.W.
536, 537.
Method of terminating mortgagor's right of
redemption. Hibernia Savings & Loan Soc. v.
Lauffer, 41 Cal.App.2d 725, 107 P.2d 494, 497.
FORECLOSURE. To shut out, to bar, to destroy
an equity of redemption. Anderson v. Barr, 178
Okl. 508, 62 P.2d 1242, 1246. A termination of all
rights of the mortgagor or his grantee in the
property covered by the mortgage. Levin v. Century Indemnity Co., 279 Mass. 256, 181 N.E. 223,
225.
A process in chancery by which all further right existing
in a mortgagor to redeem the estate is defeated and lost
to him, and the estate becomes the absolute property of
the mortgagee; being applicable when the mortgagor has
forfeited his estate by non-payment of the money due on
the mortgage at the time appointed, but still retains the
equity of redemption. 2 Washb. Real Prop. 237. Goodman
v. White, 26 Conn. 322; Trustees of Schools v. St. Paul
Fire & Marine Ins. Co., 296 Ill. 99, 129 N.E. 567, 568.
FORECLOSURE DECREE. Properly speaking,
a decree ordering the strict foreclosure of a mortgage; but the term is also loosely and conventionally applied to a decree ordering the sale of
the mortgaged premises and the satisfaction of
the mortgage out of the proceeds. Hanover F.
Ins. Co. v. Brown, 77 Md. 64, 25 A. 989, 39 Am.St.
Rep. 386.
FORECLOSURE SALE. A sale of mortgaged
property to obtain satisfaction of the mortgage
out of the proceeds, whether authorized by a decree of the court or by a power of sale contained
in the mortgage. Johnson v. Cook, 96 Mo.App.
442, 70 S.W. 526.
FORECLOSURE SUIT. A proceeding for legal
determination of existence of lien, ascertainment
of its extent, and subjection to sale of estate
pledged for its satisfaction, and to settle conflicting claims by selling equity of redemption. Reichert v. McCool, 92 Ind.App. 406, 169 N.E. 86, 88.
FOREFAULT. In Scotch law, to forfeit; to lose.
FOREGIFT. A premium for a lease.
FOREGOERS. Royal purveyors. 26 Edw. III. c.
5.
FOREHAND RENT. In English law, rent payable in advance; or, more properly, a species of
premium or bonus paid by the tenant on the making of the lease, and particularly on the renewal
of leases by ecclesiastical corporations.
FOREIGN. Belonging to another nation or coun7
try; belonging or attached to another jurisdiction; made, done, or rendered in another state
or jurisdiction; subject to another jurisdiction;
operating or solvable in another territory; extrinsic; outside; extraordinary. Nonresident.
775
FOREIGN
Blanchette v. New England Telephone & Telegraph
Co., 90 N.H. 207, 6 A.2d 161, 162.
As to foreign "Administrator," "Assignment,"
"Attachment," "Bill of Exchange," "Charity,"
"Commerce," "Corporation," "County," "Creditor," "Divorce," "Document," "Domicile," "Factor," "Judgment," "Jury," "Minister," "Plea,"
"Port," "State," "Vessel," and "Voyage," see those
titles.
FOREIGN ANSWER. In old English practice,
an answer which was not triable in the county
where it was made. (St. 15 Hen. VI. c. 5.) Blount.
FOREIGN APPOSER. An officer in the exchequer who examines the sheriff's estreats, comparing them with the records, and apposeth (interrogates) the sheriff what he says to each particular sum therein. 4 Inst. 107; Blount; Cowell.
FOREIGN BOUGHT AND SOLD. A custom in
London which, being found prejudicial to sellers
of cattle in Smithfield, was abolished. Wharton.
FOREIGN COINS. Coins issued as money under
the authority of a foreign government. As to
their valuation in the United States, see 46 Stat.
739, 31 U.S.C.A. § 372.
FOREIGN COURTS. The courts of a foreign
state or nation. In the United States, this term
is frequently applied to the courts of one of the
states when their judgments or records are introduced in the courts of another.
FOREIGN DOMINION. In English law this
means a country which at one time formed part
of the dominions of a foreign state or potentate,
but which by conquest or cession has become a
part of the dominions of the British crown. 5
Best & S. 290.
FOREIGN ENLISTMENT ACT. The statute 59
Geo. III. c. 69, prohibiting the enlistment, as a
soldier or sailor, in any foreign service. 4 Steph.
Comm. 226. A later and more stringent act is
that of 33 & 34 Vict. c. 90.
FOREIGN EXCHANGE. Drafts drawn on a foreign state or country.
FOREIGN—GOING SHIP. By the English merchant shipping act, 1854, (17 & 18 Vict. c. 104,) § 2,
any ship employed in trading, going between some
place or places in the United Kingdom and some
place or places situate beyond the following limits, that is to say: The coasts of the United Kingdom, the islands of Guernsey, Jersey, Sark, Alderney, and Man, and the continent of Europe, between the river Elbe and Brest, inclusive. Hometrade ship includes every ship employed in trading
and going between places within the last-mentioned limits.
FOREIGN JUDGMENT. See Judgment.
FOREIGN JURISDICTION. Any jurisdiction foreign to that of the forum. Also the exercise by
a state or nation of jurisdiction beyond its own
territory, the right being acquired by treaty or
otherwise.
FOREIGN LAWS. The laws of a foreign country,
or of a sister state. People v. Martin, 38 Misc.
Rep. 67, 76 N.Y.S. 953; Bank of Chillicothe v.
Dodge, 8 Barb., N.Y., 233. Foreign laws are
often the suggesting occasions of changes in, or
additions to, our own laws, and in that respect are
called "jus receptum." Brown.
FOREIGN MATTER. In old practice, matter
triable or done in another county. Cowell.
FOREIGN OFFICE. The department of state
through which the English sovereign communicates with foreign powers. A secretary of state
is at its head. Till the middle of the last century,
the functions of a secretary of state as to foreign
and home questions were not disunited.
FOREIGN SERVICE, in feudal law, was that
whereby a mesne lord held of another, without
the compass of his own fee, or that which the
tenant performed either to his own lord or to the
lord paramount out of the fee. (Kitch. 299.)
Foreign service seems also to be used for knight's
service, or escuage uncertain. (Perk. 650.) Jacob.
FOREIGN TRADE. Commercial interchange of
commodities from different countries; export and
import trade. Standard Oil Co. of New Jersey v.
United States, 29 Cust. & Pat.App. 82, 120 F.2d
340, 342.
FOREIGN WILL. Will of person not domiciled
within state at time of death. De Tray v. Hardgrove, Tex.Com.App., 52 S.W.2d 239, 240. •
FOREIGNER. In old English law, this term,
when used with reference to a particular city,
designated any person who was not an inhabitant
of that city. According to later usage, it denotes
a person who is not a citizen or subject of the
state or country of which mention is made, or
any one owing allegience to a foreign state or
sovereign.
For the distinctions, in Spanish law, between
"domiciliated" and "transient" foreigners, see
Yates v. lams, 10 Tex. 168.
FOREIN. An old form of foreign (q. v.). Blount.
FOREJUDGE. In old English law and practice,
to expel from court for some offense or misconduct. When an officer or attorney of a court
was expelled for any offense, or for not appearing to an action by bill filed against him, he was
said to be forejudged the court. Cowell.
To deprive or put out of a thing by the judgment of a court. To condemn to lose a thing.
To expel or banish.
FOREJUDGER. In English practice, a judgment
by which a man is deprived or put out of a thing;
a judgment of expulsion or banishment.
776
FORESTARIUS
of forest, chase, and warren, to rest and abide in the safe
protection of the prince for his princely delight and pleasure, having a peculiar court and officers. Manw. For.
Laws, c. 1, no. 1; Termes de la Ley; 1 Bl.Comm. 289.
A royal hunting-ground which lost its peculiar character
with the extinction of its courts, or when the franchise
passed into the hands of a subject. Spelman; Cowell.
The word is also used to signify a franchise or right,
being the right of keeping, for the purpose of hunting, the
wild beasts and fowls of forest, chase, park, and warren,
in a territory or precinct of woody ground or pasture set
apart for the purpose. 1 Steph.Comm. 665.
FOREMAN. The presiding member of a grand
or petit jury, who speaks or answers for the jury.
Person designated by master to direct work of
employees; superintendent, overseer. White v.
Kansas City Stockyards Co., 104 Kan. 90, 177 P.
522; Browning v. Smiley-Lampert Lumber Co.,
68 Or. 502, 137 P. 777, 780; Brokaw v. Cottrell,
114 Neb. 858, 211 N.W. 184, 187.
FORENSIC. Belonging to courts of justice.
FOREST COURTS. In English law. Courts instituted for the government of the king's forest
in different parts of the kingdom and for the
punishment of all injuries done to the king's deer
or venison, to the vert or greensward, and to
the covert in which such deer were lodged. They
consisted of the courts of attachments, of regard,
of sweinmote, and of justice-seat; but in later
times these courts are no longer held. 3 Bl.
Comm. 71.
FORENSIC MEDICINE, or medical jurisprudence, as it is also called, is "that science which
teaches the application of every branch of medical knowledge to the purposes of the law; hence
its limits are, on the one hand, the requirements
of the law, and, on the other, the whole range of
medicine. Anatomy, physiology, medicine, surgery, chemistry, physics, and botany lend their
aid as necessity arises; and in some cases all
these branches of science are required to enable
a court of law to arrive at a proper conclusion
on a contested question affecting life or property."
Tayl. Med. Jur. 1.
FOREST LAW. The system or body of old law
relating to the royal forests.
FORESTAGE. A duty or tribute payable to the
king's foresters. Cowell.
FORENSIS.
In Civil law, belonging to or connected with a
court; forensic. Forensis homo, an advocate;
a pleader of causes; one who practices in court.
Calvin.
In old Scotch law, a strange man or stranger;
an out-dwelling man; an "unfreeman," who dwells
not within burgh.
FORESTAGIUM. A duty or tribute payable to
the king's foresters. Cowell.
FORESTALL. To intercept or obstruct a passenger on the king's highway. Cowell. To beset
the way of a tenant so as to prevent his coming
on the premises. 3 Bl. Comm. 170. To intercept
a deer on his way to the forest before he can
regain it. Cowell.
FORESAID. Used in Scotch law as aforesaid
is in English, and sometimes, in a plural form,
foresaids. 2 How. State Tr. 715. Forsaidis occurs in old Scotch records. "The Loirdis assesouris forsaidis." 1 Pitc. Crim, Tr. pt. 1, p. 107.
FORESCHOKE. Foresaken; disavowed. 10
Edw. II. c. 1.
FORESEEABILITY. The ability to see or know
in advance, hence, the reasonable anticipation
that harm or injury is a likely result of acts or
omissions. Emery v. Thompson, 347 Mo. 494, 148
S.W.2d 479, 480.
FORESHORE. The strip of land that lies between the high and low water marks and that is
alternately wet and dry according to the flow of
the tide. Tenenbaum v. Sea Gate Ass'n, 253 App.
Div. 166, 1 N.Y.S.2d 224, 227. According to the
medium line between the greatest and least range
of tide (spring tides and neap tides). Sweet.
See, also, Shore.
FORESIGHT. Heedful thought for the future;
reasonable anticipation of result of certain acts or
omissions. Emery v. Thompson, 347 Mo. 494, 148
S.W.2d 479.
FOREST. A tract of land covered with trees
and one usually of considerable extent. Forest
Preserve Dist. of Cook County v. Jirsa, 336 Ill.
624, 168 N.E. 690, 691.
In old English law, a certain territory of wooded ground
and fruitful pastures, privileged for wild beasts and fowls
FORESTALLER. In old English law, obstruction; hindrance; the offense of stopping the
highway; the hindering a tenant from coming to
his land; intercepting a deer before it can regain
the forest. Also one who forestalls; one who
commits the offense of forestalling. 3 Bl. Comm.
170; Cowell.
FORESTALLING. Obstructing the highway. Intercepting a person on the highway.
FORESTALLING THE MARKET. Securing control of commodities on way to market. Raney v.
Montgomery County Com'rs, 170 Md. 183, 183 A.
548, 551.
The act of the buying or contracting for any merchandise
or provision on its way to the market, with the intention
of selling it again at a higher price; or the dissuading
persons from bringing their goods or provisions there; or
persuading them to enhance the price when there. 4 Bl.
Comm. 158. Barton v. Morris, 10 Phila., Pa., 361. This
was formerly an indictable offense in England, but is now
abolished by St. 7 & 8 Vict. c. 24. 4 Steph.Comm. 291, note.
FORESTARIUS.
In English law, a forester. An officer who takes
care of the woods and forests. De forestario apponendo, a writ which lay to appoint a forester
to prevent further commission of waste when a
tenant in dower had committed waste. Bract.
316; Du Cange.
In Scotch law, a forester or keeper of woods, to
whom, by reason of his office, pertains the bark
777
FORESTER
and the hewn branches. And, when he rides
through the forest, he may take a tree as high as
his own head. Skene de Verb. Sign.
FORESTER. A sworn officer of the forest, appointed by the king's letters patent to walk the
forest, watching both the vert and the venison,
attaching and presenting all trespassers against
them within their own bailiwick or walk. These
letters patent were generally granted during good
behavior; but sometimes they held the office in
fee. Blount.
FORETHOUGHT FELONY. In Scotch law, murder committed in consequence of a previous design. Ersk. Inst. 4, 4, 50; Bell.
FORFANG. In old English law, the taking of
provisions from any person In fairs or markets
before the royal purveyors were served with necessaries for the sovereign. Cowell. Also the
seizing and rescuing of stolen or strayed cattle
from the hands of a thief, or of those having illegal possession of them; also the reward fixed
for such rescue.
FORFEIT. To lose, or lose the right to, by some
error, fault, offense, or crime, or to subject, as
property, to forfeiture or confiscation. State v.
Cowen, 231 Iowa 1117, 3 N.W.2d 176, 180. To lose,
in consequence of breach of contract, neglect of
duty, or offense, some right, privilege, or property
to another or to the State. United States v. Chavez, C.C.A.N.M., 87 F.2d 16, 19.
To incur a penalty; to become liable to the
payment of a sum of money, as the consequence
of a certain act. Sands v. Holbert, 93 W.Va. 574,
117 S.E. 896, 899; Ford v. Ellison, 287 Mo. 683, 230
S.W. 637, 640.
To lose an estate, a franchise, or other property belonging to one, by the act of the law, and as a consequence of
some misfeasance, negligence, or omission. Cassell v.
Crothers, 193 Pa. 359, 44 A. 446; State v. De Gress, 72 Tex.
242, 11 S.W. 1029; State v. Baltimore & 0. R. Co., 12 Gill
& J., Md., 432, 38 Am.Dec. 319. The further ideas connoted
by this term are that it is a deprivation, (that is, against
the will of the losing party,) and that the property is either transferred to another or resumed by the original grantor.
FORFEITABLE. Liable to be forfeited; subject
to forfeiture for non-user, neglect, crime, etc.
FORFEITURE. Something to which the right is
lost by the commission of a crime or fault or the
losing of something by way of penalty. Ridgeway v. City of Akron, Ohio App., 42 N.E.2d 724,
726. A deprivation or destruction of a right in
consequence of the nonperformance of some obligation or condition. Connellan v. Federal Life
& Casualty Co., 134 Me. 104, 182 A. 13, 14.
1. A punishment annexed by law to some illegal act or
negligence in the owner of land, tenements, or hereditaments whereby he loses all interest therein. Hammond v.
Johnson, 94 Utah 20, 66 P.2d 894, 900. And which go to the
party injured as a recompense for the wrong which he
alone, or the public together with himself, hath sustained.
2 Bl.Comm. 267. Wiseman v. McNulty, 25 Cal. 237; Stephenson v. Calliham, Tex.Civ.App., 289 S.W. 158, 159; Fratt
v. Daniels-Jones Co., 47 Mont. 487, 133 P. 700, 701.
2. The loss of land by a tenant to his lord, as the consequence of some breach of fidelity. 1 Steph.Cornm. 166.
3. The loss of lands and goods to the state, as the consequence of crime. 4 Bl.Comm. 381, 387; 4 Steph.Comm.
447, 452; 2 Kent, Comm. 385; 4 Kent, Comm. 426; Avery
v. Everett, 110 N.Y. 317, 18 N.E. 148, 1 L.R.A. 264, 6 Am.
St.Rep. 368.
4. The loss of goods or chattels, as a punishment for
some crime or misdemeanor in the party forfeiting, and as
a compensation for the offense and injury committed
against him to whom they are forfeited. 2 Bl.Comm. 420.
5. The loss of office by abuser, non-user, or refusal to
exercise it. City of Williamsburg v. Weesner, 164 Ky.
769, 176 S.W. 224, 225.
6. The loss of a corporate franchise or charter in consequence of some illegal act, or of malfeasance or nonfeasance. Murphy v. Missouri & Kansas Land & Loan Co.,
28 N.D. 519, 149 N.W. 957, 959; Village of Fredonia v.
Fredonia Natural Gas Light Co., 87 Misc. 592, 149 N.Y.S.
964, 965.
7. The loss of the right to life, as the consequence of
the commission of some crime to which the law has affixed
a capital penalty. In re New Jersey Court of Pardons, 97
N.J.Eq. 555, 129 A. 624, 630.
8. The incurring a liability to pay a definite sum of
money as the consequence of violating the provisions of
some statute, or refusal to comply with some requirement
of law. State v. Marion County Com'rs, 85 Ind. 493.
9. A thing or sum of money forfeited. Something imposed as a punishment for an offense or delinquency. The
word in this sense is frequently associated with the word
"penalty." Van Buren v. Digges, 11 How. 477, 13 L.Ed.
771; Bryant v. Rich's Grill, 216 Mass. 344, 103 N.E. 925,
927, Ann.Cas.1915B, 869; Miller v. Bopp, 136 La. 788, 67 So.
831; Missouri, K & T. Ry. Co. v. Dewey Portland Cement
Co., 113 Okl. 142, 242 P. 257, 259.
10. In mining law, the loss of a mining claim held by
location on the public domain (unpatented) in consequence
of the failure of the holder to make the required annual
expenditure upon it within the time allowed. McKay v.
McDougall, 25 Mont. 258, 64 P. 669, 87 Am.St.Rep. 395; St.
John v. Kidd, 26 Cal. 271.
FORFEITURE OF BOND. A failure to perform
the condition upon which obligor was to be excused from the penalty in the bond. Hall v.
Browning, 71 Ga.App. 835, 32 S.E.2d 424, 427.
FORFEITURE OF MARRIAGE. A penalty incurred by a ward in chivalry who married without the consent or against the will of the guardian. See Duplex Valor Maritagii.
FORFEITURE OF SILK, supposed to lie in the
docks, used, in times when its importation was
prohibited, to be proclaimed each term in the exchequer.
FORFEITURES ABOLITION ACT. Another
name for the felony act of 1870, abolishing forfeitures for felony in England.
FORGABULUM, or FORGAVEL. A quit-rent; a
small reserved rent in money. Jacob.
FORGE. To fabricate by false imitation. Carter
v. State, 135 Tex.Cr.R. 457, 116 S.W.2d 371, 377.
To fabricate, construct, or prepare one thing in
imitation of another thing, with the intention of
substituting the false for the genuine, or otherwise deceiving and defrauding by the use of the
spurious article. To counterfeit or make falsely.
Especially, to make a spurious written instrument with the intention of fraudulently substituting it for another, or of passing it off as genuine;
or to fraudulently alter a genuine instrument to
another's prejudice; or to sign another person's
778
FORISJUDICATIO
FORINSIC. In old English law, exterior; foreign; extraordinary.
name to a document, with a deceitful and fraudulent intent. In re Cross, D.C.N.C., 43 F. 520;
U. S. v. Watkins, 28 Fed.Cas. 445; Johnson v.
State, 9 Tex.App. 251; Longwell v. Day, 1 Mich.
N.P. 290.
To forge (a metaphorical expression, borrowed from the
occupation of the smith) means, properly speaking, no
more than to make or form, but in our law it is always
taken in an evil sense. 2 East, P. C. p. 852, c. 19, § 1.
To forge is to make in the likeness of something else;
to counterfeit is to make in imitation of something else,
with a view to defraud by passing the false copy for genuine or original. Both words, "forged" and "counterfeited," convey the idea of similitude. State v. McKenzie, 42
Me. 392.
In common usage, however, forgery is almost always
predicated of some private instrument or writing, as a
deed, note, will, or a signature; and counterfeiting denotes
the fraudulent imitation of coined or paper money or some
substitute therefor.
In feudal law, the term "forinsic services" comprehended
the payment of extraordinary aids or the rendition of
extraordinary military services, and in this sense was opposed to "intrinsic services." 1 Reeve, Eng. Law, 273.
FORIS. Lat. Abroad; out of doors; on the outside of a place; without; extrinsic.
FORISBANITUS. In old English law, banished.
FORISFACERE. Lat. To forfeit; to lose an estate or other property on account of some criminal or illegal act. To confiscate.
To act beyond the law, i. e., to transgress or infringe the law; to commit an offense or wrong;
to do any act against or beyond the law. See Co.
Litt. 59a; Du Cange; Spelman.
FORISFACERE, e., EXTRA LEGEM SEU CONSUETUDINEM FACERE. Co. Litt. 59. Forisfacere, e., to do something beyond law or custom.
FORGERY.
Criminal Law
The false making or material altering, with
intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or
the foundation of a legal liability. People v.
Routson, 354 Ill. 573, 188 N.E. 883, 885; 2 Bish.
Crim. Law, § 523; McCornack v. Central State
Bank, 203 Iowa 833, 211 N.W. 542, 545, 52 A.L.R.
1297. A fraudulent making and alteration of
writing to prejudice of another man's right, or a
false making, a making malo animo of any instrument, for the purpose of fraud or deceit. Iberville Trust & Saving Bank v. City Café, La.App.,
143 So. 73. See Forge.
The thing itself, so falsely made, imitated or
forged; especially a forged writing. A forged
signature is frequently said to be "a forgery."
FORISFACTUM. Forfeited. Bona forisfacta,
forfeited goods. 1 Bl. Comm. 299. A crime. Du
Cange; Spelman.
FORISFACTURA. A crime or offense through
which property is forfeited.
A fine or punishment in money.
Forfeiture. The loss of property or life in
consequence of crime.
FORISFACTURA PLENA. A forfeiture of all
a man's property. Things which were forfeited.
Du Cange. Spelman.
FORISFACTUS. A criminal. One who has forfeited his life by commission of a capital offense.
Spelman.
Evidence
The fabrication or counterfeiting of evidence.
The artful and fraudulent manipulation of physical objects, or the deceitful arrangement of
genuine facts or things, in such a manner as to
create an erroneous impression or a false inference in the minds of those who may observe them.
See Burrill, Circ. Ev. 131, 420.
FORGERY ACT, 1870. The statute 33 & 34 Vict.
c. 58, was passed for the punishment of forgers
of stock certificates, and for extending to Scotland certain provisions of the forgery act of
1861. Mozley & Whitley.
FORISFACTUS SERVUS. A slave who has been
a free man, but has forfeited his freedom by
crime. Du Cange.
FORISFAMILIARE. In old English and Scotch
law, literally, to put out of a family (fortis familiam ponere). To portion off a son, so that he
could have no further claim upon his father.
Glanv. lib. 7, c. 3.
To emancipate, or free from paternal authority.
FORISFAMILIATED. In old English law, portioned off.
FORHERDA. In old records, a herdland, headland, or foreland. Cowell.
FORT DISPUTATIONES. In the civil law, discussions or arguments before a court. 1 Kent,
Comm. 530.
FORINSECUS. Lat. Foreign; exterior; outside; extraordinary.
Servitium forinsecum, the payment of aid, scutage, and
other extraordinary military services. Forinsecum manerium, the manor, or that part of it which lies outside the
bars or town, and is not included within the liberties of it.
Cowell; Blount; Jacob; 1 Reeve, Eng.Law, 273.
A son was said to be forisfamiliated (forisfamiliari) if his
father assigned him part of his land, and gave him seisin
thereof, and did this at the request or with the free consent of the son himself, who expressed himself satisfied
with such portion. 1 Reeve, Eng. Law, 42, 110.
FORISFAMILIATUS. In old English law, put
out of a family; portioned off; emancipated;
forisfamiliated. Bract. fol. 64.
FORISJUDICATIO. In old English law, forejudger. A forejudgment. A judgment of court
whereby a man is put out of possession of a
thing. Co. Litt. 100b.
779
FORISJUDICATUS
FORISJUDICATUS. Forejudged; sent from
court; banished. Deprived of a thing by judgment of court. Bract. fol. 250b; Co. Litt. 100b;
Du Cange.
hence the inhibition or command which it may
contain; used in the phrase (in criminal pleading) "against the form of the statute in that case
made and provided."
FORISJURARE. To forswear; to abjure; to
abandon.
FORMA. Lat. Form; the prescribed form of
judicial proceedings.
Provinciam forisjurare. To forswear the country.
Spelman.
FORMA DAT ESSE. Form gives being. Called
"the old physical maxim." Lord Henley, Ch., 2
Eden, 99.
FORISJURARE PARENTILAM. To remove oneself from parental authority. The person who
did this lost his rights as heir. Du Cange.
FORMA ET FIGURA JUDICH. The form and
shape of judgment or judicial action. 3 Bl. Comm.
271.
FORJUDGE. See Forejudge.
FORJURER. L. Fr. In old English law, to forswear; to abjure.
FORJURER ROYALME. To abjure the realm.
Britt. cc. 1, 16.
FORLER-LAND. Land in the diocese of Hereford, which had a peculiar custom attached to it,
but which has been long since disused, although
the name is retained. But. Surv. 56.
FORM. A model or skeleton of an instrument
to be used in a judicial proceeding, containing the
principal necessary matters, the proper technical
terms or phrases, and whatever else is necessary
to make it formally correct, arranged in proper
and methodical order, and capable of being adapted to the circumstances of the specific case.
In contradistinction to "substance," "form"
means the legal or technical manner or order to
be observed in legal instruments or juridical proceedings, or in the construction of legal documents or processes.
Antithesis of "substance." Phoenix Building &
Homestead Ass'n v. Meraux, 189 La. 819, 180 So.
648, 649.
Common Form, Solemn Form. See Probate.
Forms of Action. This term is the general designation of the various species or kinds of personal actions known to the common law, such as
trover, trespass, debt, assumpsit, etc. These differ in their pleadings and evidence, as well as in
the circumstances to which they are respectively
applicable. Truax v. Parvis, 7 Houst. (Del.) 330,
32 A. 227.
Matter of Form. In pleadings, in indictments,
in affidavits, conveyances, etc., matter of form
(as . distinguished from matter of substance) is
all that relates to the mode, form, or style of
expressing the facts involved, the choice or arrangement of words, and other such particulars,
without affecting the substantial validity or sufficiency of the instrument, or without going to
the merits. Railway Co. v. Kurtz, 10 Ind.App.
60, 37 N.E. 303; Meath v. Mississippi Levee
Com'rs, 109 U.S. 268, 3 S.Ct. 284, 27 L.Ed. 930;
State v. Amidon, 58 Vt. 524, 2 A. 154.
Form of the Statute. This expression means
the words, language, or frame of a statute, and
FORMA LEGALIS FORMA ESSENTIALIS. Legal form is essential form. 10 Coke, 100.
FORMA NON OBSERVATA, INFERTUR AD-.
NULLATIO ACTUS. Where form is not observed, a nullity of the act is inferred. 12 Coke,
7. Where the law prescribes a form, the nonobservance of it is fatal to the proceeding, and
the whole becomes a nullity. Best, Ev. Introd. §
59.
FORMA PAUPERIS. See In Forma Pauperis.
FORMAL. Relating to matters of form; as,
"formal defects"; inserted, added, or joined pro
forma. See Parties.
FORMALITIES. In England, robes worn by the
magistrates of a city or corporation, etc., on solemn occasions. Enc. Lond.
FORMALITY. The conditions, in regard to method, order, arrangement, use of technical expressions, performance of specific acts, etc., which
are required by the law in the making of contracts or conveyances, or in the taking of legal
proceedings, to insure their validity and regularity. Succession of Seymour, 48 La.Ann. 993, 20
So. 217.
FORMATA. In canon law, canonical letters.
Spelman.
FORMATA BREVIA. Formed writs; writs of
form. See Brevia Formata.
FORMED ACTION. An action for which a set
form of words is prescribed, which must be strictly adhered to. 10 Mod. 140, 141.
FORMED DESIGN. In criminal law, and particularly with reference to homicide, this term
means a deliberate and fixed intention to kill,
whether directed against a particular person or
not. Mitchell v. State, 60 Ala. 33; Wilson v.
State, 128 Ala. 17, 29 So. 569; Ake v. State, 30 Tex.
473.
FORMEDON. An ancient writ in English law
which was available for one who had a right to
lands or tenements by virtue of a gift in tail.
It was in the nature of a writ of right, and was the
highest action that a tenant in tail could have; for he
could not have an absolute writ of right, that being confined to such as claimed in fee-simple, and for that reason
this writ of formedon was granted to him by the statute
780
FORNIX
de donis, (Westm. 2, 13 Edw. I. c. 1,) and was emphatically called "his" writ of right. The writ was distinguished
into three species, viz. : Formedon in the descender, in the
remainder, and in the reverter. It was abolished in England by St. 3 & 4 Wm. IV. c. 27. See 3 B1.Comm. 191; Co.
Litt. 316; Fitzh.Nat.Brev. 255.
FORMEDON IN THE DESCENDER. A writ of
formedon which lay where a gift was made in
tail, and the tenant in tail aliened the lands or
was disseised of them and died, for the heir in
tail to recover them, against the actual tenant
of the freehold. 3 Bl. Comm. 192.
FORMEDON IN THE REMAINDER. A writ of
formedon which lay where a man gave lands to
another for life or in tail, with remainder to a
third person in tail or in fee, and he who had the
particular estate died without issue inheritable,
and a stranger intruded upon him in remainder,
and kept him out of possession. In this case he
in remainder, or his heir, was entitled to this
writ. 3 Bl. Comm. 192.
FORMEDON IN THE REVERTER. A writ of
formedon which lay where there was a gift in
tail, and afterwards, by the death of the donee
or his heirs without issue of his body, the reversion fell in upon the donor, his heirs or assigns. In such case, the reversioner had this
writ to recover the lands. 3 Bl. Comm. 192.
FORMELLA. A certain weight of above 70 lbs.,
mentioned in 51 Hen. III. Cowell.
FORMER ACQUITTAL. See Autrefois.
FORMER ADJUDICATION. An adjudication in
a former action. See Res Judicata.
Either a final determination of the rights of
the parties or an adjudication of certain questions of fact. Johnson v. Fontana County Fire
Protection Dist., 101 P.2d 1092, 1097, 15 Cal.2d
380; Johnson v. Fontana County Fire Protection
Dist., Cal.App., 87 P.2d 426, 430.
FORMER JEOPARDY. Plea of "former jeopardy," that a man cannot be brought into danger
of his life or limb for the same offense more than
once, is fundamental common law and constitutional right of defendant, affording protection
against his being again tried for the same offense, and not against the peril of second punishment. State v. Fredlund, 200 Minn. 44, 273 N.W.
353, 355, 113 A.L.R. 215.
United States, where a uniform course of proceeding under
codes of procedure has taken their place. But the principles regulating the distinctions between the common-law
actions are still found applicable even where the technical
forms are abolished.
FORMULA. In common-law practice, a set form
of words used in judicial proceedings.
In the civil law, an action. Calvin.
FORMULA DEAL. An agreement between motion picture distributors and independent or affiliated circuits to exhibit a feature in all theatres at
specified percentage of national gross receipts
realized from such feature by all theatres in the
United States. U. S. v. Paramount Pictures, D.C.
N.Y., 66 F.Supp. 323, 333, 347.
FORMULA INSTRUCTION. An instruction intended to be complete statement of law upon
which jury may base verdict. Harvey v. Aceves,
115 Cal.App. 333, 1 P.2d 1043, 1045.
FORMULIE. In Roman law, when the legis actiones were proved to be inconvenient, a mode of
procedure called "per formulas," (i. e., by means
of formulce,) was gradually introduced, and eventually the legis actiones were abolished by the
Lex .Xbutia, B. C. 164, excepting in a very few
exceptional matters.
The formulce were four in number, namely : (1) The
Demonstratio, wherein the plaintiff stated, i. e., showed,
the facts out of which his claim arose; (2) the Intentio,
where he made his claim against the defendant; (3) the
Adjudicatio, wherein the judex was directed to assign or
adjudicate the property or any portion or portions thereof
according to the rights of the parties; and (4) the Condemnatio, in which the judex was authorized and directed to
condemn or to acquit according as the facts were or were
not proved. These formulae were obtained from the
magistrate, (in jure,) and were thereafter proceeded with
before the judex, (in judicio). Brown. See Mackeld.Rom.
Law, § 204.
FORMULARIES. Collections of formulce, ,Jr
forms of forensic proceedings and instruments
used among the Franks, and other early continental nations of Europe. Among these the formulary of Marculphus may be mentioned as of considerable interest. Butl. Co. Litt. note .77, lib. 3.
FORNAGIUM. The fee taken by a lord of his
tenant, who was bound to bake in the lord's common oven (in furno domini), or for a commission
to use his own.
FORMS OF ACTION. This term comprehends
the various classes of personal action at common
law, viz.: trespass, case, trover, detinue, replevin,
covenant, debt, assumpsit, scire facias, and revivor, as well as the nearly obsolete actions of
account and annuity, and the modern action of
mandamus.
FORNICATION. Unlawful sexual intercourse between two unmarried persons. Further, if one of
the persons be married and the other not, it is
fornication on the part of the latter, though adultery for the former. In some jurisdictions, however, by statute, it is adultery on the part of both
persons if the woman is married, whether the
man is married or not. Banks v. State, 96 Ala.
78, 11 So. 404; Hood v. State, 56 Ind. 263, 26 Am,
Rep. 21; State v. Phillips, 26 N.D. 206, 144 N.W.
94, 95, 49 L.R.A.,N.S., 470, Ann.Cas.1916A, 320;
State v. Ling, 91 Kan. 647, 138 P. 582, Ann.Cas.
1915D, 374.
They are now abolished in England by the Judicature
Acts of 1873 and 1875, and in many of the states of the
FORNIX, Lat. A brothel; fornication.
FORMER RECOVERY. Recovery in a former
action. See Res Judicata.
FORMIDO PERICULI, Lat. Fear of danger. 1
Kent, Comm. 23.
781
FORNO
FORNO. In Spanish law, an oven. Las Partidas,
pt. 3, tit. 32, 1. 18.
FORO. In Spanish law, the place where tribunals
hear and determine causes,—exercendarum litium
locus.
FOROS. In Spanish law, emphyteutic rents.
Schm. Civil Law, 309.
FORPRISE. An exception; reservation; excepted; reserved. Anciently, a term of frequent use
in leases and conveyances. Cowell; Blount.
In another sense, the word is taken for any
exaction.
FORSCHEL. A strip of land lying next to the
highway.
FORSES. Waterfalls. Camden, Brit.
FORSPEAKER. An attorney or advocate in a
cause. Blount; Whishaw.
FORSPECA. In old English law, prolocutor;
paranymphus.
FORSTAL. See Forestall.
FORSTELLARIUS EST PAUPERUM DEPRESSOR ET TOTIUS COMMUNITATIS ET PATRLE
PUBLICUS INIMICUS. 3 Inst. 196. A forestaller
is an oppressor of the poor, and a public enemy
of the whole community and country.
FORSWEAR. In criminal law, to make oath to
that which the deponent knows to be untrue.
This term is wider in its scope than "perjury,"
for the latter, as a technical term, includes the
idea of the oath being taken before a competent
court or officer, and relating to a material issue,
which is not implied by the word "forswear."
Fowle v. Robbins, 12 Mass. 501; Tomlinson v.
Brittlebank, 4 Barn. & A. 632; Railway Co. v.
McCurdy, 114 Pa. 554, 8 A. 230, 60 Am.Rep. 363.
FORT. This term means "something more than
a mere military camp, post, or station. The term
implies a fortification, or a place protected from
attack by some such means as a moat, wall, or
parapet." U. S. v. Tichenor, C.C.Or., 12 F. 424.
FORTALICE, or FORTELACE. A fortress or
place of strength, which anciently did not pass
without a special grant. 11 Hen. VII. c. 18.
FORTALITIUM. In old Scotch law, a fortalice;
a castle. Properly a house or tower which has
a battlement or a ditch or moat about it.
FORTAXED. Wrongly or extortionately taxed.
ment as may be entered. If the property be forthcoming, no liability ensues. U. S. Fidelity & Guaranty Co. v. Sabath, 286 Ill.App. 320, 3 N.E.2d 330,
335.
A bond given to a sheriff who has levied on property,
conditioned that the property shall be forthcoming, i. e.,
produced, when required. On the giving of such bond, the
goods are allowed to remain in the possession of the debtor.
Hill v. Manser, 11 Grat., Va., 522 ; Nichols v. Chittenden,
14 Colo.App. 49, 59 P. 954; Burnham-Munger-Root Dry
Goods Co. v. Strahl, 102 Neb. 142, 166 N.W. 266.
FORTHWITH. Immediately; without delay, directly, hence within a reasonable time under the
circumstances of the case; promptly and with
reasonable dispatch. State ex rel. Board of Education of City of Tulsa v. Morley, 168 Okl. 259,
34 P.2d 258, 261; 1 Chit. Archb. Pr. (12th Ed.)
164. Within such time as to permit that which
is to be done, to be done lawfully and according
to the practical and ordinary course of things to
be performed or accomplished. Harris v. Stewart, 187 Miss. 489, 193 So. 339, 342. The first opportunity offered. Abbott v. State, 117 Neb. 350,
220 N.W. 578, 579.
FORTIA. Force. In old English law. Force
used by an accessory, to enable the principal to
commit a crime, as by binding or holding a person while another killed him, or by aiding or counseling in any way, or commanding the act to be
done. Bract. fols. 138, 138b.
According to Lord Coke, fortia was a word of art, and
properly signified the furnishing of a weapon of force to
do the fact, and by force whereof the fact was committed,
and he that furnished it was not present when the fact was
done. 2 Inst. 182.
FORTIA FRISCA. Fresh force (q. v.).
FORTILITY. In old English law, a fortified place;
a castle; a bulwark. Cowell; 11 Hen. VII. c. 18.
FORTIOR. Lat. Stronger. A term applied, in
the law of evidence, to that species of presumption, arising from facts shown in evidence, which
is strong enough to shift the burden of proof to
the opposite party. Burrill, Circ.Ev. 64, 66.
FORTIOR EST CUSTODIA LEGIS QUAM HOMINIS. 2 Rolle, 325. The custody of the law is
stronger than that of man.
FORTIOR ET POTENTIOR EST DISPOSITIO
LEGIS QUAM HOMINIS. The disposition of the
law is of greater force and effect than that of man.
Co.Litt. 234a; Shep.Touch. 302; 15 East, 178.
The law in some cases overrides the will of the
individual, and renders ineffective or futile his
expressed intention or contract. Broom, Max.
697.
FORTHCOMING. In Scotch law, the action by
which an arrestment (garnishment) is made effectual. It is a decree or process by which the
creditor is given the right to demand that the
sum arrested be applied for payment of his claim.
2 Kames, Eq. 288, 289; Bell.
FORTIS. Lat. Strong. Fortis et sana, strong
and sound; staunch and strong; as a vessel.
Townsh.Pl. 227.
FORTHCOMING BOND. A bond conditioned on
the forthcoming of property to answer such judg-
FORTLETT. A place or port of some strength;
a little fort. Old Nat. Brev. 45.
FORTIORI. See A Fortiori.
782
FORUM
FORTUIT. In French law, accidental; fortuitous.
Cas fortuit, a fortuitous event. Fortuitement, accidentally; by chance; casually.
FORTY–DAYS COURT. In old English forest
law, the court of attachment in forests, or woodmote court.
FORTUITOUS. Happening by chance or accident.
Kermani v. Insurance Co. of North America, 142
Misc. 542, 255 N.Y.S. 687, 689. Occurring unexpectedly, or without known cause. Stanton v. Minneapolis St. Ry. Co., 195 Minn. 457, 263 N.W. 433,
434. Accidental; undesigned; adventitious. Resulting from unavoidable physical causes. Zappala v. Industrial Ins. Commission, 82 Wash. 314,
144 P. 54, L.R.A.1916A, 295.
FORUM. Lat. A court of justice, or judicial tribunal; a place of jurisdiction; a place of litigation. 3 Story, 347. Place where remedy is pursued. Rubin v. Gallagher, 294 Mich. 124, 292 N.W.
584, 586.
FORTUITOUS COLLISION. In maritime law,
the accidental running foul of vessels. Peters v.
Warren Ins. Co., 14 Pet. 112, 10 L.Ed. 371.
FORTUITOUS EVENT. In the civil law, that
which happens by a cause which cannot be resisted. An unforeseen occurrence, not caused by
either of the parties, nor such as they could prevent.
In French it is called "cads fortuit." Civ. Code La. art.
3556, no. 15.
There is a difference between a fortuitous event, or inevitable accident, and irresistible force. By the former,
commonly called the "act of God," is meant any accident
produced by physical causes which are irresistible; such
as a loss by lightning or storms, by the perils of the seas,
by inundations and earthquakes, or by sudden death or illness. By the latter is meant such an interposition of human agency as is, from its nature and power, absolutely
uncontrollable. Of this nature are losses occasioned by the
inroads of a hostile army, or by public enemies. Story,
Baffin. § 25. In Workmen's Compensation Acts fortuitous
event is accidental happening, or accident that takes place
without design or expectation, or thing that happens from
irresistible cause. The term is expressly defined in several
acts. Stolp v. Department of Labor and Industries, 138
Wash. 685, 245 P. 20, 21; Stertz v. Industrial Insurance
Commission of Washington, 91 Wash. 588, 158 P. 256, 259,
Ann.Cas.1918B, 354; Zappala v. Industrial Ins. Commission, 82 Wash. 314, 144 P. 54, L.R.A.1916A, 295.
FORTUNA. Lat. Fortune; also treasure-trove.
Jacob.
FORTUNAM FACIUNT JUDICEM. They make
fortune the judge. Co. Litt. 167. Spoken of the
process of making partition among coparceners
by drawing lots for the several purparts.
FORTUNE TELLER. One who professes to tell
future events in the life of another. People v.
Plaskett, 171 Misc. 563, 13 N.Y.S.2d 682, 684.
In English law, persons pretending or professing to tell fortunes, and punishable as rogues and
vagabonds or disorderly persons. 4 Bl.Comm. 62.
FORTUNIUM. In old English law, a tournament
or fighting with spears, and an appeal to fortune
therein.
FORTY. In land laws and conveyancing, in those
regions where grants, transfers, and deeds are
made with reference to the subdivisions of the
government survey, this term means forty acres
of land in the form of a square, being the tract
obtained by quartering a section of land (640
acres) and again quartering one of the quarters.
Lente v. Clarke, 22 Fla. 515, 1 So. 149.
In Roman law, the market place, or public
paved court, in the city of Rome, where such public business was transacted as the assemblies of
the people and the judicial trial of causes, and
where also elections, markets, and the public exchange were held.
FORUM ACTUS. The forum of the act. The
forum of the place where the act was done which
is now called in question.
FORUM BOVARIUM. See Bovarius.
FORUM CONSCIENTIZE. The forum or tribunal
of conscience.
FORUM CONTENTIOSUM. A contentious forum
or court; a place of litigation; the ordinary court
of justice, as distinguished from the tribunal of
conscience. 3 Bl.Comm. 211.
FORUM CONTRACTUS. The forum of the contract; the court of the place where a contract is
made; the place where a contract is made, considered as a place of jurisdiction. 2 Kent, Comm.
463.
FORUM CONVENIENS. Place where testamentary trustee may be reached by process. In re
Knox' Estate, 52 Ca1.App.2d 338, 126 P.2d 108, 113.
FORUM DOMESTICUM. A domestic forum or
tribunal. The visitatorial power is called a "forum
domesticum," calculated to determine, sine strepitu, all disputes that arise within themselves. 1
W.B1. 82.
FORUM DOMICILII. The forum or court of the
domicile; the domicile of a defendant, considered
as a place of jurisdiction. 2 Kent, Comm. 463.
FORUM ECCLESIASTICUM. An ecclesiastical
court. The spiritual jurisdiction, as distinguished
from the secular.
FORUM LIGEANTIZE REI. The forum of defendant's allegiance. The court or jurisdiction
of the country to which he owes allegiance.
FORUM NON CONVENIENS. The doctrine is
patterned upon the right of the court in the exercise of its equitable powers to refuse the imposition upon its jurisdiction of the trial of cases even
though the venue is properly laid if it appears
that for the convenience of litigants and witnesses and in the interest of justice the action should
be instituted in another forum where the action
might have been brought. Hayes v. Chicago, R. I.
& P. R. Co., D.C.Minn., 79 F.Supp. 821, 824. The
doctrine presupposes at least two forums in which
the defendant is amenable to process and fur-
783
FORUM
nishes criteria for choice between such forums.
Wilson v. Seas Shipping Co., D.C.Pa., 78 F.Supp.
464, 465; Neal v. Pennsylvania R. Co., D.C.N.Y., 77
F.Supp. 423, 424. The application of the doctrine
rests in the sound discretion of the court and the
factors to be considered in the doctrine are the
private interests of the litigant and the interest of
the public. Cullinan v. New York Cent. R. Co., D.
C.N.Y., 83 F.Supp. 870, 871. And a court, either
state or federal, will generally decline to interfere
with or control by injunction or otherwise the
management of internal affairs of a corporation
organized under the laws of another state, leaving
controversies as to such matters to courts of state
of domicile. Garrett v. Phillips Petroleum Co.,
Tex.Civ.App., 218 S.W.2d 238, 240; Murray v. Union Pac. R. Co., D.C.Ill., 77 F.Supp. 219; Kelley v.
American Sugar Refining Co., C.C.A.Mass., 139 F.
2d 76; Tiuoli Realty v. Interstate Circuit, C.C.A.
Tex., 167 F.2d 155; Rogers v. Guaranty Trust Co.,
288 U.S. 123, 53 S.Ct. 295, 77 L.Ed. 652, 89 A.L.R.
720.
The rule is an equitable one embracing the discretionary
power of a court to decline to exercise jurisdiction which it
has over a transitory cause of action when it believes that
the action may be more appropriately and justly tried
elsewhere. Leet v. Union Pac. R. Co., 155 P.2d 42, 44, 25
Ca1.2d 605.
In determining whether doctrine should be applied, court
should consider relative ease of access to sources of proof,
availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing wig
nesses, possibility of view of premises, and all other practical problems that make trial easy, expeditious and inexpensive. Di Lella v. Lehigh Val. R. Co., D.C.N.Y., 7 F.R.
D. 192, 193.
FORUM ORIGINIS. The court of one's nativity.
The place of a person's birth, considered as a
place of jurisdiction.
FORUM REGIUM. The king's court. St. Westm.
2, c. 43.
FORUM REI. This term may mean either (1) the
forum of the defendant, that is, of his residence
or domicile; or (2) the forum of the res or thing
in controversy, that is, of the place where the
property is situated. The ambiguity springs from
the fact that rei may be the genitive of either
reus or res.
FORUM REI GESTAZE. The forum or court of a
res fiesta (thing done;) the place where an act
is done, considered as a place of jurisdiction and
remedy. 2 Kent, Comm. 463.
FORUM REI SIT2E. The court where the thing
in controversy is situated. The place where the
subject-matter in controversy is situated, considered as a place of jurisdiction. 2 Kent, Comm.
463.
FORUM SECULARE. A secular, as distinguished
from an ecclesiastical or spiritual, court.
27 A.L.R. 1479; Katcher v. American Express Co.,.
94 N.J.L. 165, 109 A. 741, 742.
FORWARDING MERCHANT, or FORWARDER.
One who receives and forwards goods, taking upon himself the expenses of transportation, for
which he receives a compensation from the owners, having no concern in the vessels or wagons
by which they are transported, and no interest in,
the freight, and not being deemed a common carrier, but a mere warehouseman and agent. Story,
Bailm. §§ 502, 509. Schloss v. Wood, 11 Colo. 287,.
17 P. 910; Bush v. Miller, 13 Barb. N.Y. 488.
FOSSA. In the Civil law, a ditch; a receptacle of
water, made by hand. Dig. 43, 14, 1, 5.
In Old English law, a ditch. A pit full of water,
in which women committing felony were drowned.
A grave or sepulcher. Spelman.
FOSSAGIUM. In old English law, the duty levied
on the inhabitants for repairing the moat or ditch
round a fortified town.
FOSSATORUM OPERATIO. In old English law,
fosse-work; or the service of laboring, done by inhabitants and adjoining tenants, for the repair
and maintenance of the ditches round a city or
town, for which some paid a contribution, called
"fossagium." Cowell.
FOSSATUM. A dyke, ditch, or trench; a place
inclosed by a ditch; a moat; a canal.
FOSSE-WAY, or FOSSE. One of the four ancient
Roman ways through England. Spelman.
FOSSELLUM. A small ditch. Cowell.
FOSTER PARENT. One who has performed the
duties of a parent to the child of another by rearing the child as his own child; "foster child." In
re Norman's Estate, 209 Minn. 19, 295 N.W. 63, 66.
FOSTERAGE. Care of a foster child, brother,
sister, parent, etc.—one considered as holding the
relationship indicated in consequence of nursing
and rearing, though not related by blood. In re
Norman's Estate, 295 N.W. 63, 66, 209 Minn. 19.
FOSTERING. A ancient custom in Ireland, in
which persons put away their children to fosterers.
Fostering was held to be a stronger alliance than
blood, and the foster children participated in the
fortunes of their foster fathers. Mozley & Whit.
ley.
FOSTERLAND. Land given, assigned, or allotted
to the finding of food or victuals for any person
or persons; as in monasteries for the monks, etc,
Cowell; Blount.
FORURTH. In old records, a long slip of ground.
Cowell.
FOSTERLEAN. The remuneration fixed for the
rearing of a foster child; also the jointure of a
wife. Jacob.
FORWARD. To send forward; to send toward
the place of destination; to transmit. Nicoletti
v. Bank of Los Banos, 190 Cal. 637, 214 P. 51, 52,
FOUJDAR. In Hindu law, under the Mogul gov.
ernment a magistrate of the police over a large
district, who took cognizance of all criminal mat-
784
FOX'S
FOUNDEROSA. Founderous; out of repair, as a
road. Cro. Car. 366.
ters within his jurisdiction, and sometimes was
employed as receiver general of the revenues.
Wharton.
FOUNDLING. A deserted or exposed infant; a
child found without a parent or guardian, its relatives being unknown. It has a settlement in the
district where found. State ex rel. Wilson v.
Pierre, 155 La. 510, 99 So. 421.
FOUJDARRY COURT. In Hindu law, a tribunal
for administering criminal law.
FOUND. A person is said to be found within a
state when actually present therein. Patient removed to a sanitarium in county was "found" in
county. In re Cash, 383 Ill. 409, 50 N.E.2d 487,
490. But only if a person is in a place voluntarily
and not by reason of plaintiff's fraud, artifice, or
trick for purpose of obtaining service. Shields v.
Shields, 115 Mont. 140, 139 P.2d 528, 530, 531. It
does not necessarily mean physical presence: defendant who, after removal of action for breach
of contract to federal court, entered general appearance, defended on the merits, and filed counterclaim, was "found" in the district. Freeman v.
Bee Mach. Co., Mass., 319 U.S. 448, 63 S.Ct. 1146,
1149, 87 L.Ed. 1509.
As applied to a corporation it is necessary that
it be doing business in such state through an officer or agent or by statutory authority in such
manner as to render it liable then to suit and to
constructive or substituted service of process. Romaine v. Ins. Co., C.C.Tenn., 55 F. 751; Venner v.
Pennsylvania Steel Co. of New Jersey, D.C.N.J.,
250 F. 292, 295; Haskell v. Aluminum Co. of America, D.C.Mass., 14 F.2d 864, 867. And to such an
extent that actual presence is established. Westor Theatres v. Warner Bros. Pictures, D.C.N.J.,
41 F.Supp. 757, 760.
FOUNDLING HOSPITALS. Charitable institutions which exist in most countries for taking care
of infants forsaken by their parents, such being
generally the offspring of illegal connections. The
foundling hospital act in England is the 13 Geo.
II. c. 29.
FOUR. Fr. In old French law, an oven or bakehouse. Four banal, an oven, owned by the seignior
of the estate, to which the tenants were obliged to
bring their bread for baking. Also the proprietary right to maintain such an oven.
FOUR CORNERS. The face of a written instrument.
That which is contained on the face of a deed (without
any aid from the knowledge of the circumstances under
which it is made) is said to be within its four corners, because every deed is still supposed to be written on one entire skin, and so to have but four corners.
To look at the four corners of an instrument is to examine the whole of it, so as to construe it as a whole,
without reference to any one part more than another. 2
Smith, Lead.Cas. 295.
FOUR SEAS. The seas surrounding England.
These were divided into the Western, including the
Scotch and Irish; the Northern, or North sea; the
Eastern, being the German ocean; the Southern,
being the British channel.
FOUNDATION. The founding or building of a college or hospital. The incorporation or endowment
of a college or hospital is the foundation; and
he who endows it with land or other property is
the founder. Dartmouth College v. Woodward, 4
Wheat. 667, 4 L.Ed. 629; Seagrave's Appeal, 125
Pa. 362, 17 A. 412; Union Baptist Ass'n v. Hunn,
7 Tex.Civ.App. 249, 26 S.W. 755.
FOURCHER. Fr. To fork. This was a method
of delaying an action anciently resorted to by
defendants when two of them were joined in the
suit. Instead of appearing together, each would
appear in turn and cast an essoin for the other,
thus postponing the trial.
FOUNDED. Based upon; arising from, growing
out of, or resting upon; as in the expressions
"founded in fraud," "founded on a consideration,"
"founded on contract," and the like. In re Grant
Shoe Co., C.C.A.N.Y., 130 F. 881, 66 C.C.A. 78;
Palmer v. Preston, 45 Vt. 158, 12 Am.Rep. 191;
Steele v. Hoe, 14 Adol. & El. 431; In re Morales,
D.C.Fla., 105 F. 761.
FOUNDED ON. To serve as a base or basis for.
Keen v. Mid-Continent Petroleum Corp., D.C.Iowa,
58 F.Supp. 915, 922.
FOUNDER. The person who endows an eleemosynary corporation or institution, or supplies the
funds for its establishment. See Foundation.
FOUNDERS' SHARES. In English Company
Law, shares issued to the founders of (or vendors to) a public company as a part of the consideration for the business, or concession, etc.,
taken over, and not forming a part of, the ordinary capital. As a rule, such shares only participate in profits after the payment of a fixed minimum dividend on paid-up capital. Encyc. Dict.
Black's Law Dictionary Revised 4th Ed.-50
FOURIERISM. A form of socialism. See 1 Mill,
Pol. Ec. 260.
FOURTEENTH AMENDMENT. The Fourteenth
Amendment of the constitution of the United
States.
It became a part of the organic law July 28, 1868, and its
i mportance entitles it to special mention. It creates or at
least recognizes for the first time a citizenship of the United States, as distinct from that of the states; forbids the
making or enforcement by any state of any law abridging
the privileges and immunities of citizens of the United
States; and secures all "persons" against any state action
which is either deprivation of life, liberty, or property
without due process of law or denial of the equal protection of the laws.
FOWLS OF WARREN. Such fowls as are preserved under the game laws in warrens. According to Manwood, these are partridges and pheasants. According to Coke, they are partridges,
rails, quails, woodcocks, pheasants, mallards, and
herons. Co. Litt. 233.
FOX'S LIBEL ACT. In English law, this was the
statute 52 Geo. III. c. 60, which secured to juries,
785
FOY
upon the trial of indictments for libel, the right
of pronouncing a general verdict of guilty or not
guilty upon the whole matter in issue, and no
longer bound them to find a verdict of guilty on
proof of the piblication of the paper charged to
be a libel, and of the sense ascribed to it in the:
indictment. Wharton.
FOY. L. Fr. Faith; allegiance; fidelity.
FR. A Latin abbreviation for "fragmentum," a
fragment, used in citations to the Digest or Pandects in the Corpus Juris Civilis of Justinian, the
several extracts from juristic writings of which
It is composed being so called.
FRACTIO. Lat. A breaking; division; fraction;
a portion of a thing less than the whole.
FRACTION. A breaking, or breaking up; a fragment or broken part; a portion of a thing, less
than the whole. Jory v. Palace Dry Goods Co., 30
Or. 196, 46 P. 786.
FRACTION OF A DAY. A portion of a day. The
dividing a day. Generally, the law does not allow
the fraction of a day. 2 Bl.Comm. 141.
FRACTIONAL. As applied to tracts of land, particularly townships, sections, quarter sections, and
other divisions according to the government survey, and also mining claims, this term means that
the exterior boundary lines are laid down to include the whole of such a division or such a claim,
but that the tract in question does not measure
up to the full extent or include the whole acreage,
because a portion of it is cut off by an overlapping
survey, a river or lake, or some other external
interference. Tolleston Club v. State, 38 N.E. 214,
141 Ind. 197; Parke v. Meyer, 28 Ark. 287; Goitermann v. Schiermeyer, 111 Mo. 404, 19 S.W. 487.
Any irregular division whether containing more or
less than conventional amount of acreage. Graysonia-Nashville Lumber Co. v. Wright, 117 Ark.
151, 175 S.W. 405; South Florida Farms Co. v.
Goodno, 84 Fla. 532, 94 So. 672, 675.
FRACTIONEM DIEI NON RECIPIT LEX. Lofft,
572. The law does not take notice of a portion of
a day.
FRACTITIUM. Arable land. Mon. Angl.
FRACTURA NAVIUM. Lat. The breaking or
wreck of ships; the same as naufragium, (q. v.)
FRAGMENTA. Lat. Fragments. A name sometimes applied (especially in citations) to the Digest or Pandects in the Corpus Juris Civilis of Justinian, as being made up of numerous extracts
or "fragments" from the writings of various jurists. Mackeld. Rom. Law, § 74.
FRAIS. Fr. Expense; charges; costs. Frais d'un
procês, costs of a suit.
FRAIS DE JUSTICE. In French and Canadian
law, costs incurred incidentally to the action.
FRAIS JUSQU'A BORD. Fr. In French commercial law, expenses to the board; expenses incurred
on a shipment of goods, in packing, cartage, commissions, etc., up to the point where they are actually put on board the vessel. Bartels v. Redfield, C.C.N.Y., 16 F. 336.
FRAME-UP. Conspiracy or plot, especially for
evil purpose, as to incriminate person on false evidence. State v. Bissell, 106 Vt. 80, 170 A. 102, 108.
FRAMED. When used to describe evidence, word
is generally accepted as implying that willful perjurers, suborned by and conspiring with parties
in interest to litigation, are swearing or have
sworn to matters without any basis ih fact. TriState Transit Co. of Louisiana v. Westbrook, 207
Ark. 270, 180 S.W.2d 121. 125.
FRANC. A French coin of the value of a little
over eighteen cents. Levy v. Cleveland, C., C. &
St. L. Ry. Co., 210 App.Div. 422, 206 N.Y.S. 261, 262.
FRANC ALEU. In French feudal law, an allod;
a free inheritance; or an estate held free of any
services except such as were due to the sovereign.
FRANC TENANCIER. In French law, a freeholder.
FRANCHILANUS. A freeman. Chart. Hen. IV.
A free tenant. Spelman.
FRANCHISE. A special privilege conferred by
government on individual or corporation, and
which does not belong to citizens of country generally of common right. Elliott v. City of Eugene,
135 Or. 108, 294 P. 358, 360. In England it is defined to be a royal privilege in the hands of a
subject.
A "franchise," as used by Blackstone in defining quo
warranto, (3 Corn. 262 [4th Am. Ed.] 322), had reference
to a royal privilege or branch of the king's prerogative
subsisting in the hands of the subject, and must arise from
the king's grant, or be held by prescription, but today we
understand a franchise to be some special privilege conferred by government on an individual, natural or artificial,
which is not enjoyed by its citizens in general. State v.
Fernandez, 106 Fla. 779, 143 So. 638, 639, 86 A.L.R. 240.
In this country a franchise is a privilege or immunity of
a public nature, which cannot be legally exercised without legislative grant. To be a corporation is a franchise.
The various powers conferred on corporations are franchises. The execution of a policy of insurance by an insurance company, and the issuing a bank-note by an incorporated bank, are franchises. People v. Utica Ins. Co.,
15 Johns., N.Y., 387, 8 Am.Dec. 243. But it does not embrace the property acquired by the exercise of the franchise. Bridgeport v. New York & N. H. R. Co., 36 Conn.
255, 4 Am. Rep. 63. Nor involve interest in land acquired
by grantee. Whitbeck v. Funk, 140 Or. 70, 12 P.2d 1019,
1020. In a popular sense, the political rights of subjects
and citizens are franchises, such as the right of suffrage,
etc. Pierce v. Emery, 32 N.H. 484; State v. Black Diamond Co., 97 Ohio St. 24, 119 N.E. 195, 199, L.R.A.1918E,
352.
Elective Franchise. The right of suffrage; the right or
privilege of voting in public elections.
Exclusive Franchise. See Exclusive Privilege or Franchise.
General and Special. The charter of a corporation is its
"general" franchise, while a "special" franchise consists
in any rights granted by the public to use property for a
public use but with private profit. Lord v. Equitable Life
Assur. Soc., 194 N.Y. 212, 87 N.E. 443, 22 L.R.A.,N.S., 420.
Personal Franchise. A franchise of corporate existence,
or one which authorizes the formation and existence of a
786
FRANK
corporation, is sometimes called a "personal" franchise,
as distinguished from a "property" franchise, which authorizes a corporation so formed to apply its property to
some particular enterprise or exercise some special privilege in its employment, as, for example, to construct and
operate a railroad. See Sandham v. Nye, 9 Misc.Rep. 541,
30 N.Y.S. 552.
Secondary Franchises. The franchise of corporate existence being sometimes called the "primary" franchise of
a corporation, its "secondary" franchises are the special
and peculiar rights, privileges, or grants which it may receive under its charter or from a municipal corporation,
such as the right to use the public streets, exact tolls,
collect fares, etc. State v. Topeka Water Co., 61 Kan.
547, 60 P. 337; Virginia Canon Toll Road Co. v. People,
22 Colo. 429, 45 P. 398, 37 L.R.A. 711. The franchises of a
corporation are divisible into (1) corporate or general
franchises; and (2) "special or secondary franchises."
The former is the franchise to exist as a corporation, while
the latter are certain rights and privileges conferred upon
existing corporations. Gulf Refining Co. v. Cleveland Trust
Co., 166 Miss. 759, 108 So. 158, 160.
Special Franchises. See Secondary Franchises, supra.
FRANCHISE TAX. A tax on the franchise of a
corporation, that is, on the right and privilege of
carrying on business in the character of a corporation, for the purposes for which it was created, and in the conditions which surround it. In re
Commercial Safe Deposit Co. of Buffalo, 148 Misc.
527, 266 N.Y.S. 626.
Though the value of the franchise, for purposes of taxation, may be measured by the amount of business done, or
the amount of earnings or dividends, or by the total value
of the capital or stock of the corporation in excess of its
tangible assets, a franchise tax is not a tax on either property, capital, stock, earnings, or dividends. Home Ins. Co.
v. New York, 134 U.S. 594, 10 S.Ct. 593, 33 L.Ed. 1025;
Worth v. Petersburg R. Co., 89 N.C. 305; People v. Knight,
174 N.Y. 475, 67 N.E. 65, 63 L.R.A. 87; Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S.Ct. 673, 678, 61 L.Ed.
1280, Ann.Cas.1917E, 88; American Refining Co. v. Staples,
Tex.Com.App., 269 S.W. 420, 421. Nor a tax on franchise
in technical sense, but on all intangible property of such a
corporation, not otherwise taxed, used in state as component part of corporation's entire system. Western Union
Telegraph Co. v. Weaver, D.C.Neb., 5 F.Supp. 493, 497.
It is tax on intangible values inhering to business and
added value given to tangible property, being "ad valorem"
as distinguished from "excise" or "privilege" tax. State
Tax Commission v. Petroleum Exploration, 253 Ky. 119, 68
S.W.2d 777.
FRANK, adj. In old English law, free. Occurring in several compounds.
FRANK-ALMOIGNE. In English law, free alms.
A spiritual tenure whereby religious corporations,
aggregate or sole, held lands of the donor to them
and their successors forever.
They were discharged of all other except religious services, and the trinoda necessitas. It differs from tenure by
divine service, in that the latter required the performance
of certain divine services, whereas the former, as its name
i mports, is free. This tenure is expressly excepted in the
12 Car. II. c. 24, § 7, and therefore still subsists in some
few instances. 2 Broom & H. Comm. 203.
FRANK BANK. In old English law, free bench.
Litt. § 166; Co. Litt. 110b. See Free-Bench.
FRANK-CHASE. A liberty of free chase enjoyed
by any one, whereby all other persons having
ground within that compass are forbidden to cut
down wood, etc., even in their own demesnes, to
the prejudice of the owner of the liberty. Cowell.
See Chase.
FRANK-FEE. Freehold lands exempted from all
services, but not from homage; lands held otherwise than in ancient demesne. That which a man
holds to himself and his heirs, and not by such
service as is required in ancient demesne, according to the custom of the manor. Cowell.
FRANK FERM. In English law, a species of estate held in socage, said by Britton to be "lands
and tenements whereof the nature of the fee is
changed by feoffment out of chivalry for certain
yearly services, and in respect whereof neither
homage, ward, marriage, nor relief can be demanded." Britt. c. 66; 2 Bl.Comm. 80.
FRANK-FOLD. In old English law, free-fold; a
privilege for the lord to have all the sheep of his
tenants and the inhabitants within his seigniory,
in his fold, in his demesnes, to manure his land.
Keilw. 198.
FRANCIA. France. Bract. fol. 427b.
FRANK-LAW. An obsolete expression signifying
the rights and privileges of a citizen, or the liberties and civic rights of a freeman.
FRANCIGENA. A man born in France. A designation formerly given to aliens in England.
See Frenchman.
FRANK-MARRIAGE. A species of entailed estates, in English law, now grown out of use, but
still capable of subsisting.
FRANCUS. L. Lat. Free; a freeman; a Frank.
Spelman.
FRANCUS BANCUS. Free bench (q. v.).
FRANCVS HOMO. In old European law. A free
man. Domesday.
FRANCUS PLEGIUS. In old English law, a frank
pledge, or free pledge. See Frank-Pledge.
FRANCUS TENENS. A freeholder. See FrankTenement.
FRANK, v. To send matter through the public
mails free of postage, by a personal or official
privilege.
When tenements are given by one to another, together
with a wife, who is a daughter or cousin of the donor, to
hold in frank-marriage, the donees shall have the tenements to them and the heirs of their two bodies begotten,
i. e., in special tail. For the word "frank-marriage,"
ex vi termini, both creates and limits an inheritance, not
only supplying words of descent, but also terms of procreation. The donees are liable to no service except fealty,
and a reserved rent would be void, until the fourth degree of consanguinity be passed between the issues of the
donor and donee, when they were capable by the law of
the church of intermarrying. Litt. § 19; 2 BI.Comm. 115.
FRANK-PLEDGE. In old English law, a pledge
or surety for freemen; that is, the pledge, or
corporate responsibility, of all the inhabitants of
a tithing for the general good behavior of each
free-born citizen above the age of fourteen, and
for his being forthcoming to answer any infraction of the law. Termes de la Ley; Cowell.
787
FRANK
FRANK-TENANT. A freeholder. Litt. § 91.
FRATERNAL INSURANCE. The form of life (or
accident) insurance furnished by a fraternal beneficial association, consisting in the payment to a
member, or his heirs in case of death, of a stipulated sum of money, out of funds raised for that
purpose by the payment of dues or assessments by
all the members of the association.
•
FRANK-TENEMENT. In English law, a free
tenement, freeholding, or freehold. 2 Bl.Comm.
61, 62, 104; 1 Steph.Comm. 217; Bract. fol. 207.
Used to denote both the tenure and the estate.
FRANKING PRIVILEGE. The privilege of sending certain matter through the public mails without payment of postage, in pursuance of a personal or official privilege.
FRANKLEYN (spelled, also, "Francling" and
"Franklin"). A freeman; a freeholder; a gentleman. Blount; Cowell.
FRASSETUM. In old English law, a wood or
wood-ground where ash-trees grow. Co. Litt. 4b.
FRATER. In the civil law, a brother. Frater
consanguineus, a brother having the same father,
but born of a different mother. Frater uterinus,
a brother born of the same mother, but by a different father. Frater nutricius, a bastard brother.
FRATER FRATRI UTERINO NON SUCCEDET
IN HizEREDITATE PATERNA. A brother shall
not succeed a uterine brother in the paternal inheritance. 2 Bl.Comm. 223; Fortes. de Laud. c.
5. A maxim of the common law of England, now
superseded by the statute 3 & 4 Wm. IV. c. 106,
9. See Broom, Max. 530.
FRATERIA. In old records, a fraternity, brotherhood, or society of religious persons, who were
mutually bound to pray for the good health and
life, etc., of their living brethren, and the souls
of those that were dead. Cowell.
FRATERNAL. Brotherly; relating or belonging
to a fraternity or an association of persons formed
for mutual aid and benefit, but not for profit. In
re Mason Tire & Rubber Co., 56 App.D.C. 170, 11 F.
2d 556, 557.
FRATERNAL BENEFIT ASSOCIATION. One
whose members have adopted the same, or a very
similar, calling, avocation, or profession, or who
are working in unison to accomplish some worthy
object, and who for that reason have banded
themselves together as an association or society
to aid and assist one another, and to promote the
common cause. Alpha Rho Alumni Ass'n v. City
of New Brunswick, 126 N.J.L. 233, 18 A.2d 68, 70.
An association having a representative form of
government and a lodge system with a ritualistic
form of work for the meeting of its chapters, or
other subordinate bodies. Fain v. Feldman, 191
Ga. 519, 13 S.E.2d 179, 181. A society or voluntary
association organized and carried on for the mutual aid and benefit of its members, not for profit; which ordinarily has a lodge system, a ritualistic form of work, and a representative government, makes provision for the payment of death
benefits, and (sometimes) for benefits in case of
accident, sickness, or old age, the funds therefor
being derived from dues paid or assessments levied on the members. National Union v. Marlow,
Mo., 74 F. 778, 21 C.C.A. 89; Walker v. Giddings,
103 Mich. 344, 61 N.W. 512.
FRATERNIA. A fraternity or brotherhood.
FRATERNITY. A body of men associated for
their common interest, business or pleasure. Woman's Club of Little Falls v. Township of Little
Falls, 20 N.J.Misc. 278, 26 A.2d 739, 741; Alpha
Rho Alumni Ass'n v. City of New Brunswick, 126
N.J.L. 233, 18 A.2d 68, 71. Organizations composed
of either or both sexes. State v. Allen, 189 Ind.
369, 127 N.E. 145, 146. Brotherly regard and sympathy for others. Donnelly v. Sovereign Camp
W. 0. W., 111 Neb. 499, 197 N.W. 125, 127.
In American colleges, a student organization, either a
nationally chartered society comprising many affiliated
chapters or a single chapter in one institution formed
chiefly to promote friendship and welfare among the members, and usually having secret rites and a name consisting
of Greek letters. Woman's Club of Little Falls v. Township of Little Falls, 20 N.J.Misc. 278, 26 A.2d 739, 741;
Alpha Rho Alumni Ass'n v. City of New Brunswick, 126
N.J.L. 233, 18 A.2d 68, 71.
In old English law, "some people of a place united together in respect to a mystery or business into a company,
and their laws and ordinances cannot bind strangers."
Cuddon v. Eastwick, 1 Salk. 192.
FRATRES CONJURATI. Sworn brothers or companions for the defense of their sovereign, or for
other purposes. Hoved. 445.
FRATRES PYES. In old English law, certain
friars who wore white and black garments. Walsingham, 124.
FRATRIAGE. A younger brother's inheritance.
FRATRICIDE. One who has killed a brother or
sister; also the killing of a brother or sister.
FRAUD. An intentional perversion of truth for
the purpose of inducing another in reliance upon
it to part with some valuable thing belonging to
him or to surrender a legal right; a false representation of a matter of fact, whether by words or
by conduct, by false or misleading allegations,
or by concealment of that which should have been
disclosed, which deceives and is intended to deceive another so that he shall act upon it to his
legal injury. Brainerd Dispatch Newspaper Co.
v. Crow Wing County, 196 Minn. 194, 264 N.W.
779, 780. Any kind of artifice employed by one
person to deceive another. Goldstein v. Equitable
Life Assur. Soc. of U. S., 160 Misc. 364, 289 N.Y.S.
1064, 1067. A generic term, embracing all multifarious means which human ingenuity can devise,
and which are resorted to by one individual to
get advantage over another by false suggestions
or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair
way by which another is cheated. Johnson v. McDonald, 170 Okl. 117, 39 P.2d 150. "Bad faith" and
"fraud" are synonymous, and also synonyms of
dishonesty, infidelity, faithlessness, perfidy, unfair-
788
FRAUDULENT
ness, etc. Joiner v. Joiner, Tex.Civ.App., 87 S.W.
2d 903, 914, 915.
It consists of some deceitful practice or willful device,
resorted to with intent to deprive another of his right, or
some manner to do him an injury. As distinguished
from negligence, it is always positive, intentional. Maher
v. Hibernia Ins. Co., 67 N.Y. 292; Alexander v. Church,
53 Conn. 561, 4 A. 103; Studer v. Bleistein, 115 N.Y. 316,
22 N.E. 243, 7 L.R.A. 702; McNair v. Southern States Finance Co., 191 N.C. 710, 133 S.E. 85, 88. It comprises all
acts, omissions, and concealments involving a breach of a
legal or equitable duty and resulting in damage to another.
Coppo v. Coppo, 163 Misc. 249, 297 N.Y.S. 744, 750. And
includes anything calculated to deceive, whether it be a
single act or combination of circumstances, whether the
suppression of truth or the suggestion of what is false,
whether it be by direct falsehood or by innuendo, by speech
or by silence, by word of mouth, or by look or gesture.
People v. Gilmore, 345 Ill. 28, 177 N.E. 710, 717. Fraud,
as applied to contracts, is the cause of an error bearing
on a material part of the contract, created or continued by
artifice, with design to obtain some unjust advantage to
the one party, or to cause an inconvenience or loss to the
other. Civil Code La. art. 1847. Strauss v. Insurance Co.
of North America, 157 La. 661, 102 So. 861, 865; Jesse
French Piano & Organ Co. v. Gibbon, Tex.Civ.App., 180 S.
W. 1185, 1187.
Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by
which an undue and unconscientious advantage is taken
of another. 1 Story, Eq.Jur. § 187; Howard v. West Jersey
& S. S. R. Co., 102 N.J.Eq. 517, 141 A. 755, 757.
Fraud is either actual or constructive.
Actual fraud
consists in deceit, artifice, trick, design, some direct and
active operation of the mind ; it includes cases of the intentional and successful employment of any cunning, deception, or artifice used to circumvent or cheat another;
it is something said, done, or omitted by a person with
the design of perpetrating what he knows to be a cheat or
deception. Constructive fraud consists in any act of commission or omission contrary to legal or equitable duty,
trust, or confidence justly reposed, which is contrary to
good conscience and operates to the injury of another. Or,
as otherwise defined, it is an act, statement or omission
which operates as a virtual fraud on an individual, or
which, if generally permitted, would be prejudicial to the
public welfare, and yet may have been unconnected with
any selfish or evil design. Or, according to Story, constructive frauds are such acts or contracts as, though not originating in any actual evil design or contrivance to perpetrate a positive fraud or injury upon other persons, are
yet, by their tendency to deceive or mislead other persons,
or to violate private or public confidence, or to impair or
injure the public interests, deemed equally reprehensible
with actual fraud. 1 Story, Eq.Jur. § 258. Code Ga.1882, §
3173 (Civ.Code 1910, § 4622) ; People v. Kelly, 35 Barb.,
N.Y., 457; Jackson v. Jackson, 47 Ga. 99; Massachusetts
Ben. L. Ass'n v. Robinson, 104 Ga. 256, 30 S.E. 918, 42 L.R.
A. 261; Allen v. United States Fidelity & Guaranty Co.,
269 Ill. 234, 109 N.E. 1035, 1038.
Fraud is also classified as fraud in fact and fraud in law.
The former is actual, positive, intentional fraud. Fraud
disclosed by matters of fact, as distinguished from constructive fraud or fraud in law. McKibbin v. Martin, 64
Pa. 356, 3 Am.Rep. 588; Cook v. Burnham, 3 Kan.App. 27,
44 P. 447. Fraud in law is fraud in contemplation of law;
fraud implied or inferred by law; fraud made out by construction of law, as distinguished from fraud found by a
jury from matter of fact; constructive fraud (q. v.). See 2
Kent, Comm. 512-532; Delaney v. Valentine, 154 N.Y. 692,
49 N.E. 65; Lovato v. Catron, 20 N.M. 168, 148 P. 490, 492,
L.R.A.1915E, 451; Furst & Thomas v. Merritt, 190 N.C. 397,
130 S.E. 40, 43.
Fraud is also said to be legal or positive. The former is
fraud made out by legal construction or inference, or the
same thing as constructive fraud. Newell v. Wagness, 1 N.
D. 62, 44 N.W. 1014. Positive fraud is the same thing as
actual fraud. Douthitt v. Applegate, 33 Kan. 395, 6 P.
575, 52 Am.Rep. 533; Nocatee Fruit Co. v. Fosgate, C.C.A.
Fla., 12 F.2d 250, 252.
Actionable fraud. See Actionable.
Extrinsic or collateral fraud justifying equitable relief
against a judgment or decree means some intentional act
or conduct by which the prevailing party has prevented the
unsuccessful party from having a fair submission of the
controversy. Farley v. Davis, 10 Wash.2d 62, 116 P.2d 263,
268.
Pious fraud is a subterfuge or evasion considered morally justifiable on account of the ends sought to be promoted;
particularly applied to an evasion or disregard of the laws
in the interests of religion or religious institutions, such
as circumventing the statutes of mortmain.
Statute of Frauds. This is the common designation of a
very celebrated English statute, (29 Car. II. c. 3,) passed in
1677, and which has been adopted, in a more or less modified form, in nearly all of the United States. Its chief
characteristic is the provision that no suit or action shall
be maintained on certain classes of contracts or engagements unless there shall be a note or memorandum thereof
in writing signed by the party to be charged or by his
authorized agent. Its object was to close the door to the
numerous frauds and perjuries. It is more fully named as
the "statute of frauds and perjuries." Smith v. Morton,
70 Okl. 157, 173 P. 520, 521; Housley v. Strawn Merchandise Co., Tex.Com.App., 291 S.W. 864, 867; Norman v. Bullock County Bank, 187 Ala. 33, 65 So. 371, 372; Garber v.
Goldstein, 92 Conn. 226, 102 A. 605, 606.
FRAUD IN TREATY. Arises where a person is
induced by some fraudulent representation or pretense to execute the very instrument intended to
be executed but under a misrepresentation as to
the contents thereof. Meyers v. Murphy, 181 Md.
98, 28 A.2d 861, 862.
FRAUD ORDER. A name given to orders issued
by the postmaster general, under Rev.St. §§ 3929,
4041, 39 U.S.C.A. §§ 259, 732, for preventing the use
of the mails as an agency for conducting schemes
for obtaining money or property by means of false
or fraudulent pretences, etc.
They are not restricted to schemes which lack all the elements of legitimate business, but the statute applies "when
a business, even if otherwise legitimate, is systematically
and designedly conducted upon the plan of inducing its
p
atrons by means of false representations to part with their
money in the belief that they are purchasing something
different from, superior to, and worth more than, what is
actually sold;" Harris v. Rosenberger, Mo., 145 F. 449, 16
C.C.A. 225, 13 L.R.A.,N.S., 762.
The fraud order is issued to the postmaster of the office
through which the person affected by it receives his mail.
It forbids the post-master to pay any postal money order
to the specified person, and instructs the postmaster to
return all letters to the senders if practicable, or if not, to
the dead letter office, stamped in either case with the word
"fraudulent." The method of testing the validity of the
fraud order is to apply to the federal court for an injunction to restrain the postmaster from executing it. The decision of the postmaster-general is not the exercise of a
judicial function; if he exceeds his jurisdiction, the party
injured may have relief in equity; Degge v. Hitchcock, 229
U.S. 162, 33 S.Ct. 639, 57 L. Ed. 1135.
FRAUDARE.
Lat. In the civil law, to deceive,
cheat, or impose upon; to defraud.
FRAUDULENT.
Based on fraud; proceeding
from or characterized by fraud; tainted by fraud;
done, made, or effected with a purpose or design
to carry out a fraud. For "False and Fraudulent"
and "False or Fraudulent Claim," see those titles.
FRAUDULENT ALIENATION. In a
general
sense, the transfer of property with an intent to
defraud creditors, lienors, or others. In a particular sense, the act of an administrator who wastes
789
FRAUDULENT
the assets of the estate by giving them away or
selling at a gross undervalue. Rhame v. Lewis,
13 Rich.Eq., S.C., 269.
FRAUDULENT ALIENEE. One who knowingly
receives from an administrator assets of the estate under circumstances which make it a fraudulent alienation on the part of the administrator.
Rhame v. Lewis, 13 Rich.Eq., S.C., 269.
FRAUDULENT CONCEALMENT. The hiding or
suppression of a material fact or circumstance
which the party is legally or morally bound to
disclose. Magee v. Insurance Co., 92 U.S. 93, 23
L.Ed. 699; Small v. Graves, 7 Barb., N.Y., 578.
The test of whether failure to disclose material facts
constitutes fraud is the existence of a duty, legal or
equitable, arising from the relation of the parties ; failure
to disclose a material fact with intent to mislead or defraud under such circumstances being equivalent to an
actual "fraudulent concealment." Newell Bros. v. Hanson,
97 Vt. 297, 123 A. 208, 210.
Fraudulent concealment justifying a rescission of a contract is the intentional concealment of some fact known to
the party charged, which is material for the party injured
to know to prevent being defrauded; the concealment of a
fact which one is bound to disclose being the equivalent
of an indirect representation that such fact does not exist.
Long v. Martin, Tex.Civ.App., 234 S.W. 91, 94.
To suspend running of limitations, it means employment
of artifice, planned to prevent inquiry or escape investigation and mislead or hinder acquirement of information disclosing a right of action, and acts relied on must be of an
affirmative character and fraudulent. McNaughton v.
Rockford State Bank, 261 Mich. 265, 246 N.W. 84, 86.
FRAUDULENT CONVERSION. Receiving into
possession money or property of another and
fraudulently withholding, converting, or applying
the same to or for one's own use and benefit, or to
use and benefit of any person other than the one
to whom the money or property belongs. Commonwealth v. Mitchneck, 130 Pa.Super. 433, 198 A.
463, 464.
FRAUDULENT CONVEYANCE. A conveyance or
transfer of property, the object of which is to defraud a creditor, or hinder or delay him, or to
put such property beyond his reach. Seymour v.
Wilson, 14 N.Y. 569; Lockyer v. De Hart, 6 N.J.L.
458; Surratt v. Eskridge, 131 Va. 325, 108 S.E.
677, 679; Dean v. Davis, 242 U.S. 438, 37 S.Ct. 130,
61 L.Ed. 419. Conveyance made with intent to
avoid some duty or debt due by or incumbent on
person making transfer. Farmers Elevator Co. v.
Peck, 134 Neb. 305, 278 N.W. 499, 501.
FRAUDULENT CONVEYANCES, STATUTES OF,
OR AGAINST. The name given to two celebrated
English statutes,—the statute 13 Eliz. c. 5, made
perpetual by 29 Eliz. c. 5; and the statute 27 Eliz.
c. 4, made perpetual by 29 Eliz. c. 18.
FRAUDULENT OR DISHONEST ACT. One
which involves bad faith, a breach of honesty, a
want of integrity, or moral turpitude. Hartford
Acc. & Indem. Co. v. Singer, 185 Va. 620, 39 S.E.
2d 505, 507, 508.
FRAUDULENT PREFERENCES. In English law,
every conveyance or transfer of property or
charge thereon made, every judgment made, every
obligation incurred, and every judicial proceeding
taken or suffered by any _person unable to pay
his debts as they become due from his own moneys, in favor of any creditor, with a view of giving such creditor a preference over other creditors, shall be deemed fraudulent and void if the
debtor become bankrupt within three months. 32
& 33 Vict. c. 71, § 92.
FRAUDULENT REPRESENTATION. A false
statement as to material fact, made with intent
that another rely thereon, which is believed by
other party and on which he relies and by which
he is induced to act and does act to his injury,
and statement is fraudulent if speaker knows
statement to be false or if it is made with utter
disregard of its truth or falsity. Osborne v. Simmons, Mo.App., 23 S.W.2d 1102, 1104.
As basis for law action, establishment of representation, falsity, scienter, deception, and injury,
is required. Gray v. Shell Petroleum Corporation,
212 Iowa, 825, 237 N.W. 460, 463.
But a promise made without intent to perform
constitutes "fraudulent representation," which
generally affords ground for rescission. Mitchell
v. Mitchell, 206 N.C. 546, 174 S.E. 447, 448.
FRAUNC, FRAUNCHE, FRAUNKE. See Frank.
FRAUNCHISE. L. Fr. A franchise.
FRAUS. Lat. Fraud. More commonly called, in
the civil law, "dolus," and "dolus malus" (q. v.).
A distinction, however, was sometimes made between "fraus" and "dolus;" the former being held
to be of the most extensive import. Calvin.
FRAUS DANS LOCUM CONTRACTUI. A misrepresentation or concealment of some fact that is
material to the contract, and had the truth regarding which been known the contract would not
have been made as made, is called a "fraud dans
locum contractui;" e., a fraud occasioning the
contract, or giving place or occasion for the contract.
FRAUS EST CELARE FRAUDEM. It is a fraud
to conceal a fraud. 1 Vern. 240; 1 Story, Eq. Jur.
§§ 389, 390.
FRAUS EST ODIOSA ET NON PRIESUMENDA.
Fraud is odious, and not to be presumed. Cro.
Car. 550.
FRAUS ET DOLUS NEMINI PATROCINARI
DEBENT. Fraud and deceit should defend or
excuse no man. 3 Coke, 78; Fleta, lib. 1, c. 13, §
15; Id. lib. 6, c. 6, § 5.
FRAUS ET JUS NUNQUAM COHABITANT.
Wing. 680. Fraud and justice never dwell together.
FRAUS LATET IN GENERALIBUS. Fraud lies
hid in general expressions.
FRAUS LEGIS. Lat. In the civil law, fraud of
law; fraud upon law. See In Fraudem Legis.
790
FREE
word "free" means that every one entitled to vote
should have a reasonable opportunity to do so,.
a reasonable manner of doing so, etc., and the
word "equal" means that every vote cast should
have its decisive effect in the selection or choice
to be made at the election. McKinney v. Barker,
180 Ky. 526, 203 S.W. 303, 304, L.R.A.1918E, 581.
The term means that the voter shall not be physically restrained in the exercise of his right of franchise, by either civil or military authority, and
that every voter shall have the same right as
every other voter. Asher v. Arnett, 280 Ky. 347,
132 S.W.2d 772, 775.
FRAUS MERETUR FRAUDEM. Plowd. 100.
Fraud merits fraud.
FRAXINETUM. In old English law, a wood of
ashes; a place where ashes grow. Co. Litt. 4b;
Shep. Touch. 95.
FRAY. See Affray.
FRECTUM. In old English law, freight. Quoad
frectum navium suarum, as to the freight of his
vessels. Blount.
FREDNITE. In old English law, a liberty to hold
courts and take up the fines for beating and
wounding. To be free from fines. Cowell.
FREDSTOLE. Sanctuaries; seats of peace.
FREDUM. A fine paid for obtaining pardon when
the peace had been broken. Spelman; Blount.
A sum paid the magistrate for protection against
the right of revenge.
FREDWIT, or FREDWITE. k liberty to hold
courts and take up the fines for beating and
wounding. Jacob, Law Dict.
FREE. Not subject to legal constraint of another.
Unconstrained; having power to follow the dictates of his own will. Not subject to the dominion
of another. Not compelled to involuntary servitude. Used in this sense as opposed to "slave."
Not bound to service for a fixed term of years;
in distinction to being bound as an apprentice.
A "free and equal" election is one at which every person entitled to vote may do so if he desires, although it
can hardly be said that, if only a few are prevented from
voting, the election is not free and equal In the constitutional sense. Wallbrecht v. Ingram, 164 Ky. 463, 175 S.W.
1022, 1026.
It is the essence of free elections that the right of suffrage be untrammeled and unfettered, and that the ballot
represent and express the electors' own intelligent judgment and conscience, and there can be no "free election"
unless there is freedom of opinion. An election to be free
must be without coercion of any description or any deterrent from the elector's exercise of his free will by means
of any intimidation or influence whatever, although there
is no violence or physical coercion. Neelley v. Farr, 61
Colo. 485, 158 P. 458, 467, Ann.Cas.1918A, 23.
FREE-BENCH. A widow's dower out of copyholds to which she is entitled by the custom of
some manors. It is regarded as an excrescence
growing out of the husband's interest, and is indeed a continuance of his estate. Wharton.
Enjoying full civic rights.
Available to all citizens alike without charge;
.as a free school.
Available for public use without charge or toll;
.as a free bridge.
Not despotic; assuring liberty; defending individual rights against encroachment by any person or class; instituted by a free people; said of
governments, institutions, etc. Webster.
Certain, and also consistent with an honorable
degree in life; as free services, in the feudal law.
Confined to the person possessing, instead of
being shared with others; as a free fishery.
Not engaged in a war as belligerent or ally;
neutral; as in the maxim, "Free ships make free
goods."
FREE ALMS. The name of a species of tenure.
See Frank-almoigne.
FREE-BORD. In old records, an allowance of
land over and above a certain limit or boundary,
as so much beyond or without a fence. Cowell;
Blount. The right of claiming that quantity.
Termes de la Ley.
FREE BOROUGH MEN. Such great men as did
not engage, like the frank-pledge men, for their
decennier. Jacob.
FREE CHAPEL. In English ecclesiastical law, a
place of worship, so called because not liable to
the visitation of the ordir.ary. It is always of
royal foundation, or founded at least by private
persons to whom the crown has granted the privilege. 1 Burn, Ecc. Law, 298.
FREE COURSE. In admiralty law, a vessel having the wind from a favorable quarter is said to
sail on a "free course," or said to be "going free"
when she has a fair (following) wind and her
yards braced in. The Queen Elizabeth, D.C.N.Y.,
100 F. 876.
FREE AND CLEAR (and like phrases). The title
to property is said to be "free and clear" when
it is not incumbered by any liens; but it is said
that an agreement to convey land "free and clear"
is satisfied by a conveyance passing a good . title.
Meyer v. Madreperla, 68 N.J.L. 258, 53 A. 477, 96
Am.St.Rep. 536; Smith v. Toth, 61 Ind.App. 42,
111 N.E. 442, 444; Grisso v. MiLsey, 104 Okl. 173,
230 P. 883, 889.
FREE ELECTION. Where each voter is allowed
to cast his ballot as his own conscience dictates.
Moran v. Bowley, 347 Ill. 148, 179 N.E. 526, 531.
See Free and Equal, supra.
FREE AND EQUAL. As used in a constitutional
provision that election shall be free and equal, the
FREE ENTRY, EGRESS, AND REGRESS. An
expression used to denote that a person has the
FREE ENTERPRISE. The right to conduct a legitimate business for profit. Lafayette Dramatic
Productions v. Ferentz, 305 Mich. 193, 9 N.W.2d 57,
62, 145 A.L.R. 1158.
791
FREE
to accrue. Lehigh Valley n. Co. v. Maas & Waldstein Co., 102 N.J.L. 332, 131 A. 884; Central of
Georgia Ry. Co. v. Leverette, 34 Ga.App. 304, 129
S.E. 292, 293.
right to go on land again and again as often as
may be reasonably necessary. Thus, in the case
of a tenant entitled to emblements.
FREE FISHERY, See Fishery.
FREE WARREN. See Warren.
FREE ICE. All ice in navigable streams not included within that authorized to be appropriated
is sometimes called "free" ice, and does not belong
to the adjacent riparian owners, but to the person who first appropriates it. Hudson River Ice
Co. v. Brady, 158 App.Div. 142, 142 N.Y.S. 819, 821.
FREE LAW. A term formerly used in England
to designate the freedom of civil rights enjoyed
by freemen. It was liable to forfeiture on conviction of treason or an infamous crime. McCafferty v. Guyer, 59 Pa. 116.
FREE LOVE. Consorting with opposite sex at
pleasure without marriage. Robinson v. Casey,
Tex.Civ.App., 272 S.W. 536, 538.
FREE MEN. Before the Norman Conquest, a
free man might be a man of small estate dependent on a lord. Every man, not himself a lord, was
bound to have a lord or be treated as unworthy
of a free man's right. Among free men there
was a difference in their estimation for Wergild.
See Liber Homo.
FREE ON BOARD. Means that the subject of
sale is to be loaded for shipment without expense
to the buyer. Olsen v. McMaken & Pentzien, 139
Neb. 506, 297 N.W. 830, 832.
FREE PASS. The power of riding over a railroad without payment of the customary fare.
Coco v. Oden, 143 La. 718, 79 So. 287, 288, 8 A.L.R.
679; Tripp v. Michigan Cent. R. Co., C.C.A.Mich.,
238 F. 449, 458, L.R.A.1918A, 758.
FREE SCHOOL. Where no charge is made for
tuition. Vincent v. County Board of Education of
Talladega County, 222 Ala. 216, 131 So. 893, 894.
FREE SERVICES. In feudal and old English law,
such feudal services as were not unbecoming the
character of a soldier or a freeman to perform;
as to serve under his lord in the wars, to pay a
sum of money, and the like. 2 Bl.Comm. 60, 61.
FREE SHAREHOLDERS. The free shareholders
of a building and loan association are subscribers to its capital stock who are not borrowers
from the association. Steinberger v. Independent
B. & S. Ass'n, 84 Md. 625, 36 A. 439.
FREE SHIPS. In international law, ships of a
neutral nation. The phrase "free ships shall make
free goods" is often inserted in treaties, meaning
that goods, even though belonging to an enemy,
shall not be seized or confiscated, if found in neutral ships. Wheat. Int. Law, 507, et seq.
FREE WHITE PERSONS. "Free white persons"
referred to in Naturalization Act, as amended by
Act July 14, 1870, has meaning naturally given t&
it when first used in 1 Stat. 103, c. 3, meaning all
persons belonging to the European races then
commonly counted as white, and their descendants, including such descendants in other countries
to which they have emigrated.
It includes all European Jews, more or less intermixed
with peoples of Celtic, Scandinavian, Teutonic, Iberian,
Latin, Greek, and Slavic descent. It includes Magyars,
Lapps, and Finns, and the Basques and Albanians. It includes the mixed Latin, Celtic-Iberian, and Moorish inhabitants of Spain and Portugal, the mixed Greek, Latin,
Phoenician, and North African inhabitants of Sicily, and
the mixed Slav and Tarter inhabitants of South Russia.
It does not mean Caucasian race, Aryan race, or IndoEuropean races, nor the mixed Indo-European, Dravidian,
Semitic and Mongolian peoples who inhabit Persia. A.
Syrian of Asiatic birth and descent will not be entitled to
become a naturalized citizen of the United States as being
a free white person. Ex parte Shahid, D.C.S.C., 205 F.
812, 813; United States v. Cartozian, D.C.Or., 6 F.2d 919,
921; Ex parte Dow, D.C.S.C., 211 F. 486, 487; In re En
Sk Song, D.C.Cal., 271 F. 23. Nor a native-born Filipino.
U. S. v. Javier, 22 F.2d 879, 880, 57 App.D.C. 303. Nor a
native of India who belonged to Hindu race. Kharaitf
Ram Samras v. United States, C.C.A.Cal., 125 F.2d 879, 881.
FREE WOMAN OF COLOR. Term, up to the'
time of the Civil War, applied to all persons not
of the white race, including Indians. Sunseri v.
Cassagne, 191 La. 209, 185 So. 1, 4.
FREEDMAN. In Roman law, one who was set
free from a state of bondage; an emancipated
slave. The word is used in the same sense in the.
United States, respecting negroes who were formerly slaves. Fairfield v. Lawson, 50 Conn. 513, 47
Am.Rep. 669; Davenport v. Caldwell, 10 S.C. 333.
FREEDOM. The state of being free; liberty;
self-determination; absence of restraint; the op.
posite of slavery.
The power of acting, in the character of a moral
personality, according to the dictates of the will,
without other check, hindrance, or prohibition
than such as may be imposed by just and necessary laws and the duties of social life.
The prevalence, in the government and constitution of a country, of such a system of laws and
institutions as secure civil liberty to the individual
citizen.
FREE SOCAGE. See Socage.
FREEDOM OF RELIGION. Embraces the concept of freedom to believe and freedom to act, the
first of which is absolute, but the second of which
remains subject to regulation for protection of society. Oney v. Oklahoma City, C.C.A.Okl., 120 F.
2d 861, 865.
FREE TENURE. Tenure by free services; freehold tenure.
FREEDOM OF SPEECH AND OF THE PRESS.
See Liberty.
FREE TIME. Period that railroad car may remain unloaded before demurrage charges begin
FREEDOM OF THE CITY, In English law, this
phrase signifies immunity from county juris-
792
FREIGHT
diction, and the privilege of corporate taxation
and self-government held under a charter from
the crown. This freedom is enjoyed of right, subject to the provision of the charter, and is often
conferred as an honor on princes and other distinguished individuals. The freedom of a city
carries the parliamentary franchise. Encyc. Dict.
The rights and privileges possessed by the burgesses or freemen of a municipal corporation under the old English law; now of little importance,
and conferred chiefly as a mark of honor. See 11
Chic. L. J. 357.
The phrase has no place in American law, and as frequently used in addresses of welcome made to organizations visiting an American city, particularly by mayors,
has no meaning whatever except as an expression of good
will.
The form of the grant made by the city of New York
to Andrew Hamilton of Philadelphia as quoted at large in
13 Law Notes 150.
FREEHOLD. An estate for life or in fee. Intermountain Realty Co. v. Allen, 60 Idaho 228, 90 P.
2d 704, 706, 122 A.L.R. 647.
A "freehold estate" is a right of title to land
Cohn v. Litwin, 311 Ill.App. 55, 35 N.E.2d 410, 413.
An estate in land or other real property, of uncertain duration; that is, either of inheritance or
which may possibly last for the life of the tenant
at the least, (as distinguished from a leasehold; )
and held by a free tenure, (as distinguished from
copyhold or villeinage.) Nevitt v. Woodburn, 175
Ill. 376, 51 N.E. 593; Railroad Co. v. Hemphill, 35
Miss. 22; Ralston Steel Car Co. v. Ralston, 112
Ohio St. 306, 147 N.E. 513, 516, 39 A.L.R. 334;
Lakeside Irr. Co. v. Markham Irr. Co., 116 Tex.
65, 285 S.W. 593, 596.
An oil and gas lease. Cravens v. Hubble, 375
Ill. 51, 30 N.E.2d 622, 623.
A 99-year lease renewable forever is a "freehold
estate". Baltimore & 0. R. Co. v. Carman, 71 Ohio
App. 508, 50 N.E.2d 358, 359.
Such an interest in lands of frank-tenement as may endure not only during the owner's life, but which is cast
after his death upon the persons who successively represent
him, according to certain rules elsewhere explained. Such
persons are called "heirs," and he whom they thus represent, the "ancestor." When the interest extends beyond
the ancestor's life, it Is called a "freehold of inheritance,"
and, when it only endures for the ancestor's life, it is a
freehold not of inheritance.
An estate to be a freehold must possess these two qualities ; (1) Immobility, that is, the property must be either
land or some interest issuing out of or annexed to land;
and (2) indeterminate duration, for, if the utmost period of
time to which an estate can endure be fixed and determined, it cannot be a freehold. Wharton.
Freehold in deed is the real possession of land or tenements in fee, fee-tail, or for life. Freehold in law is the
right to such tenements before entry. The term has also
been applied to those offices which a man holds in fee or
for life. Mozl. & W. Diet. ; 1 Washb. R. P. 71, 637. See
Gage v. Scales, 100 Ill. 221; State v. Ragland, 75 N.C. 12,
L.R. 11 Eq. 454; Liberum Tenementum.
Determinable freeholds are estates for life, which may
determine upon future contingencies before the life for
which they are created expires, as if an estate be granted
to a woman during her widowhood, or to a man until he be
promoted to a benefice. In these and similar cases, whenever the contingency happens,—when the widow marries, or
when, the grantee obtains the benefice,—the respective estates are absolutely determined and gone. Yet, while they
subsist, they are reckoned estates for life; because they
may by possibility last for life, if the contingencies upon
which they are to determine do not sooner happen. 2 Bl.
Comm. 121.
Freehold in law is a freehold which has descended to a
man, upon which he may enter at pleasure, but which he
has not entered on. Termes de la Ley.
FREEHOLD LAND SOCIETIES. Societies in England designed for the purpose of enabling mechanics, artisans, and other workingmen to purchase at the least possible price a piece of freehold land of a sufficient yearly value to entitle
the owner to the elective franchise for the county
in which the land is situated. Wharton.
FREEHOLDER. One having title to realty. State
ex rel. Peterson v. City of Fraser, 191 Minn. 427,
254 N.W. 776. Either of inheritance or for life.
Warren v. Chouteau County, 82 Mont. 115, 265 P.
676, 680. Either legal or equitable title. Daniels
v. Fossas, 152 Wash. 516, 278 P. 412, 413.
A person who possesses a freehold estate. Shively v.
Lankford, 174 Mo. 535, 74 S.W. 835. Statutory meaning not
Infrequently differs from common law meaning of the
term. Payne v. Fiscal Court of Carlisle County, 200 Ky.
41, 252 S.W. 127, 129; In re Consolidation of School Dists.
in Blue Earth County, 140 Minn. 475, 168 N.W. 552; Gordon v. White, 33 S.D. 234, 145 N.W. 439.
FREEMAN. A person in the possession and enjoyment of all the civil and political rights accorded to the people under a free government.
In the Roman law, it denoted one who was either born
free or emancipated, and was the opposite of "slave." In
feudal law, it designated an allodial proprietor, as distinguished from a vassal or feudal tenant. (And so in
Pennsylvania colonial law. Fry's Election Case, 71 Pa. 308,
10 Am.Rep. 698.) In old English law, the word described
a freeholder or tenant by free services; one who was not
a villein. In modern legal phraseology, it is the appellation of a member of a city or borough having the right
of suffrage, or a member of any municipal corporation invested with full civic rights.
FREEMAN'S ROLL. A list of persons admitted
as burgesses or freemen for the purposes of the
rights reserved by the municipal corporation act,
(5 & 6 Wm. IV. c. 76.) Distinguished from the
Burgess Roll. 3 Steph.Comm. 197. The term was
used, in early colonial history, in some of the
American colonies.
FREIGHT. Freight is properly the price or compensation paid for the transportation of goods by
a carrier, at sea, from port to port. The Bill, D.
C.Md., 55 F.Supp. 780, 783. But the term is also
used to denote the hire paid for the carriage of
goods on land from place to place, (usually by a
railroad company, not an express company,) or
on inland streams or lakes. The name is also applied to the goods or merchandise transported by
any of the above means. Brittan v. Barnaby, 21
How. 533, 16 L.Ed. 177; Christie v. Davis Coal Co.,
D.C.N.Y., 95 F. 837, 838; Paradise v. Sun Mut. Ins.
Co., 6- La.Ann. 596.
The sum agreed on for the hire of a ship, entirely or in
part, for the carriage of goods from one port to another.
13 East, 300. All rewards or compensation paid for the use
of ships. Giles v. Cynthia, 1 Pet.Adm. 206, Fed.Cas.No.
5,424.
The reward, if any, to be paid for its carriage is called
"freightage ;" the person who delivers the freight to the
carrier is called the "consignor ;" and the person to whom
793
FREIGHT
it is to be delivered is called the "consignee." Civil Code
Cal. § 2110; Comp.Laws N.D.1913, § 6197; Comp.Laws S.D.
1929, § 1119.
FREOLING. (Sax. freoh, free, plus ling, progeny.) A freeman born. Wharton. See Frilingi.
Property carried is called "freight." LymanRichey Sand & Gravel Co. v. State, 123 Neb. 674,
243 N.W. 891, 893, 83 A.L.R. 1301.
FREQUENT, v. To visit often; to resort to often
or habitually. Green v. State, 109 Ind. 175, 9
N.E. 781; Ex parte Werner, 46 R.I. 1, 124 A.
195, 196.
"Dead freight" is money payable by a person who has
chartered a ship and only partly loaded her, in respect of
the loss of freight caused to the ship-owner by the deficiency of cargo. L.R. 2 H.L. Sc. 128; The Rosemary, C.
C.A.Miss., 277 F. 674, 678.
FREIGHT BOOKING. The making of specific
arrangements for the transportation of goods
by particular vessel in advance of its sailing day.
Iwai & Co., Limited, v. Hercules Powder Co., 162
Ga. 795, 134 S.E. 763, 765.
FREIGHT CAR. A railroad car adapted to the
transportation from one point to another of movable articles of every kind, character, and description, and a box car while so used is at least temporarily a car carrying freight. State v. Jones,
84 W.Va. 85, 99 S.E. 271, 274.
FREIGHT IS THE MOTHER OF WAGES. 2
Show. 283; 3 Kent, Comm. 196. Where a voyage
is broken up by vis major, and no freight earned,
no wages, eo nomine, are due.
FREIGHT THEN PENDING. Earnings of the
voyage. The C. F. Coughlin, D.C.N.Y., 25 F.Supp.
649, 650.
FREIGHT TRAIN. A train that carries freight
alone, having a caboose attached for use of crew.
Arizona Eastern R. Co. v. State, 29 Ariz. 446, 242
P. 870, 871; Mammoth Cave R. Co. v. Commonwealth, 176 Ky. 747, 197 S.W. 406, 407.
FREIGHTER. In maritime law, the party by
whom a vessel is engaged or chartered; otherwise called the "charterer." 2 Steph. Comm. 148.
In French law, the owner of a vessel is called the
"freighter" (frëteur); the merchant who hires it
is called the "affreighter" (affrëteur). Emerig.
Tr. des Ass. ch. 11, § 3.
FRENCH POOL. A system of gambling, especially on horse races, now generally known as
"pari mutuel" (q. v.).
FRENCHMAN. In early times, in English law,
this term was applied to every stranger or "outlandish" man. Bract. lib. 3, tr. 2, c. 15.
FRENDLESMAN. Sax. An outlaw. So called
because on his outlawry he was denied all help
of friends after certain days. Cowell; Blount.
FRENDWITE. In old English law, a mulct or
fine exacted from him who harbored an outlawed
friend. Cowell; Tomlins.
FRENETICUS. In old English law, a madman,
or person in a frenzy. Fleta, lib. 1, c. 36.
FREOBORGH. A free-surety, or free-pleage.
Spelman. See Frank-Pledge.
FREQUENTER. Any person not an employee
who may go in or be in place of employment or
public building under circumstances which render
him other than trespasser. Tomlin v. Chicago,
M., St. P. & P. Ry. Co., 220 Wis. 325, 265 N.W. 72.
FREQVENTIA ACTUS MULTUM OPERATUR.
The frequency of an act effects much. 4 Coke, 78;
Wing. Max. p. 719, max. 192. A continual usage
is of great effect to establish a right.
FRERE. Fr. A brother. Frère eyne, elder brother. Frère puisne, younger brother. Britt. c. 75.
FRESCA. In old records, fresh water, or rain
and land flood.
FRESH. Immediate; recent; following without
any material interval.
FRESH DISSEISIN. By the ancient common
law, where a man had been disseised, he was
allowed to right himself by force, by ejecting the
disseisor from the premises, without resort to law,
provided this was done forthwith, while the disseisin was fresh, (fiagrante disseisina.) Bract.
fol. 162b. No particular time was limited for
doing this, but Bracton suggested it should be
fifteen days. Id. fol. 163. See Britt. cc. 32, 43, 44,
65.
FRESH FINE. In old English law, a fine that
had been levied within a year past. St. Westm.
2, c. 45; Cowell.
FRESH FORCE. Force done within forty days.
Fitzh. Nat. Brev. 7; Old Nat. Brev. 4. The heir
or reversioner in a case of disseisin by fresh force
was allowed a remedy in chancery by bill before
the mayor. Cowell.
FRESH PURSUIT. A pursuit instituted immediately and with intent to reclaim or recapture,
after an animal escaped, a thief flying with stolen
goods, etc. People v. Pool, 27 Cal. 578; White v.
State, 70 Miss. 253, 11 So. 632.
FRESH SUIT. In old English law, immediate
and unremitting pursuit of an escaping thief.
"Such a present and earnest following of a robber as never ceases from the time of the robbery
until apprehension." Staundef, P. C. 3, cc.
10, 12; 1 Bl. Comm. 297.
FRESHET. A flood, or overflowing of a river,
by means of rains or melted snow; an inundation.
Stover v. Insurance Co., 3 Phila., Pa., 42; Harris
v. Social Mfg. Co., 9 R.I. 99, 11 Am.Rep. 224.
794
FRIVOLOUS
FRET. Fr. In French marine law, freight. Ord.
Mar. liv. 3, tit. 3.
utes regulating these societies were consolidated
and amended by St. 38 & 39 Vict. c. 60. Wharton.
FRETER. Fr. In French marine law, to freight
a ship; to let it. Emerig. Tr. des Ass. c. 11, § 3.
FRETUM. Lat. A strait.
FRIENDLY SUIT. A suit brought by a creditor
in chancery against an executor or administrator,
being really a suit by the executor or administrator, in the name of a creditor, against himself,
in order to compel the creditors to take an equal
distribution of the assets. 2 Williams, Ex'rs, 1915.
Also any suit instituted by agreement between
the parties to obtain the opinion of the court upon
some doubtful question in which they are interested.
FRETUM BRITANNICUM. The strait between
Dover and Calais.
FRIGIDITY. Impotence. Johnson. The term in
this sense is obsolete. Webster's New Int. Dict.
FRIARS. An order of religious persons, of whom
there were four principal branches, viz.: (1)
Minors, Grey Friars, or Franciscans; (2) Augustines ; (3) Dominicans, or Black Friars; (4) White
Friars, or Carmelites, from whom the rest descend. Wharton.
FRILINGI. Persons of free descent, or freemen
born; the middle class of persons among the
Saxons. Spelman. See Freoling.
FRETEUR. Fr. In French marine law, freighter.
The owner of a ship, who lets it to the merchant.
Emerig. Tr. des Ass. c. 11, § 3.
FRETTUM, FRECTUM. In old English law, the
freight of a ship; freight money. Cowell.
FRIBURGH. (Also, Frithborg, Frithborgh, Friborg, Froborg, and Freoburgh.) (Sax.) A kind
of frank-pledge whereby the principal men were
bound for themselves and servants. Fleta, lib.
1, cap. 47. Cowell says it is the same as frankpledge.
FRISCUS. Fresh uncultivated ground. Mon.
Angl. t. 2, p. 56. Fresh; not salt. Reg. Orig. 97.
Recent or new. See Fresh, and subtitles thereunder.
FRISK, v. The running of hands rapidly over
another's person, as distinguished from "search,"
which is to strip and examine contents more particularly. Kalwin Business Men's Ass'n v. Mc•
Laughlin, 126 Misc. 698, 214 N.Y.S. 99, 102.
FRIBUSCULUM. In the civil law, a temporary
separation between husband and wife, caused by
a quarrel or estrangement, but not amounting to
a divorce, because not accompanied with an intention to dissolve the marriage.
FRITH. Sax. Peace, security, or protection.
FRIDBORG, FRITHBORG. Frank-pledge. Cowell. Security for the peace. Spelman.
FRITHBOTE. A satisfaction or fine, for a breach
of the peace.
FRIMIBURGUS. In old English law, a kind of
frank-pledge, by which the lords or principal men
were made responsible for their dependents or
servants. Bract. fol. 124b.
FRITHBREACH. The breaking of the peace.
FRIEND. One favorably disposed. Ned v. Robinson, 181 Okl. 507, 74 P.2d 1156. Varying in degree from greatest intimacy to acquaintance more
or less casual. United States Trust Co. of Newark v. Montclair Trust Co., 133 N.J.Eq. 579, 33
A.2d 901, 903.
FRIEND OF THE COURT. See Amicus Curiae.
This word occurs in many compound terms used in
Anglo-Saxon law.
FRITHBORG. Frank-pledge. Cowell.
FRITHGAR. The year of jubilee, or of meeting
for peace and friendship.
FRITHGILDA. Guildhall; a company or fraternity for the maintenance of peace and security;
also a fine for breach of the peace. Jacob.
FRITHMAN. A member of a company or fraternity.
FRITHSOCNE. Surety of defense. Jurisdiction
of the peace. The franchise of preserving the
peace. Also spelled "frithsoken."
FRIENDLESS MAN. In old English law, an outlaw; so called because he was denied all help of
friends. Bract. lib. 3, tr. 2, c. 12.
FRITHSPLOT. A spot or plot of land, encircling
FRIENDLY FIRE. Fire burning in place where
it was intended to burn, although damages may
result. Progress Laundry & Cleaning Co. v. Reciprocal Exchange, Tex.Civ.App., 109 S.W.2d 226,
227.
FRITHSTOOL. The stool of peace. A stool or
chair placed in a church or cathedral, and which
was the symbol and place of sanctuary to those
who fled to it and reached it.
FRIENDLY SOCIETIES. In English law, associations supported by subscription, for the relief
and maintenance of the members, or their wives,
children, relatives, and nominees, in sickness, infancy, advanced age, widowhood, etc. The stat-
some stone, tree, or well, considered sacred, and
therefore affording sanctuary to criminals.
FRIVOLOUS. An answer is "frivolous" where it
appears from bare inspection to be lacking in
legal sufficiency, and, where in any view of the
facts pleaded, it does not present a defense. Neefus v. Neefus, 209 Minn. 495, 296 N.W. 579, 581.
Any pleading is called "frivolous" when it is clear-
795
FRIVOLOUS
ly insufficient on its face, and does not controvert the material points of the opposite pleading,
and is presumably interposed for mere purposes
of delay or to embarrass the opponent. Erwin
v. Lowery, 64 N.C. 321; Strong v. Sproul, 53 N.Y.
499; Gray v. Gidiere, 4 Strob., S.C., 442; In re
Beam, 93 N.J.Eq. 593, 117 A. 613, 614; Milberg v.
Keuthe, 98 N.J.L. 779, 121 A. 713, 714.
"Frivolous pleas" are those which are so clear.
ly and palpably bad as to require no argument
to convince the court thereof, and which would be
pronounced by the court indicative of bad faith
in the pleader on a mere inspection. U. S. V.
Delaney, D.C.N.J., 8 F.Supp. 224, 227.
A frivolous demurrer has been defined to be
one which is so clearly untenable, or its insufficiency so manifest upon a bare inspection of the
pleadings, that its character may be determined
without argument or research. Cottrill v. Cramer, 40 Wis. 558.
A "frivolous appeal" is one presenting no justiciable question and so readily recognizable as devoid of merit on face of record that there is little
prospect that it can ever succeed. Treat v. State
ex rel. Mitton, 121 Fla, 509, 163 So. 883.
A sham plea is good on its face, but false in fact; it
may, to all appearances, constitute a perfect defense, but
is a pretense because false and because not pleaded in good.
faith. A frivolous plea may be perfectly true in its allegations, but yet is liable to be stricken out because totally
insufficient in substance. Andrew v. Bandler, Sup., 56 N.Y.
S. 614; Brown v. Jenison, 1 Code R.N.S., N.Y., 157;
Sheets v. Ramer, 125 Minn. 98, 145 N.W. 787. See, further,
Answer.
FRODMORTEL, or FREOMORTEL. An immunity for committing manslaughter. Mon. Angl. t.
1, p. 173.
FROM. Implies a starting point, whether it be
of time, place, or condition; and meaning: Having a starting point of motion; noting the point
of departure, origin, withdrawal, etc.; out of,
starting at, as, he traveled "from" New York to
Chicago. Silva v. MacAuley, 135 Cal.App. 249, 26
P.2d 887. Word "from" or "after" an event or day
does not have an absolute and invariable meaning, but each should receive an inclusion or exclusion construction according to intention with
which such word is used. Acme Life Ins. Co. v.
White, Tex.Civ.App., 99 S.W.2d 1059, 1060. Words
"from" and "to," used in contract, may be given
meaning to which reason and sense entitles them,
under circumstances of case. Woodruff v. Adams,
134 Cal.App. 490, 25 P.2d 529.
As to whether the word was to be treated as inclusive or
exclusive of a terminus a quo, whether of time or place, a
critical writer formulated a rule that when referring to a
certain point as a terminus a quo, though in vulgar acceptation it were capable of being taken indifferently, either
inclusively or exclusively, yet in law it has obtained a certain fixed import and is always taken as exclusive of the
terminus a quo. Powell, Powers 449. It generally excludes the day to which it relates, but the general rule
will yield to the intent of parties; Kendall v. Kingsley,
120 Mass. 94. The views of Lord Mansfield, in Cowp. 714
(overruling his own decision of three years before, id. 189),
was that it is either exclusive or inclusive according to
context and subject-matter, and the court will construe it
to effectuate the intent of parties and not to destroy it.
Lowman v. Shotkoski, 106 Neb. 540, 184 N.W. 107, 108;
Allen v. Effler, 144 Tenn. 685, 235 S.W. 67, 68; Martin v.
Travelers' Ins. Co., 310 Mo. 411, 276 S.W. 380, 382, 41 A.L.
R. 1372; Piatt v. Flaherty, 96 Kan. 42, 149 P. 734.
As to time, after an examination of authorities, Washington, J., laid down what he considered the settled principles to be deduced from them : (1) When time is cornputed from an act done, the day of its performance is included; (2) when the words are from the date, if a present
interest is to commence, the day is included, if it is a
terminus from which to impute time the day is excluded;
Pearpoint v. Graham, 4 Wash.C.C. 240, Fed.Cas.No.10,877;
where the latter principle was applied to a lease, as it was
90 in Lord Raym. 84; and to a bond; Lysle v. Williams,
15 S. & R., Pa., 135; and the first proposition has been laid
down with reference to the words "from and after the
passage of this act;" Arnold v. U. S., 9 Cra., U.S., 104, 3
L.Ed. 671; U. S. v. Williams, 1 Paine 261, Fed.Cas.No.
16,723; contra, Lorent v. Ins. Co., 1 Nott. & McC., S.C.,
505. See U. S. v. Heth, 3 Cra., U. S., 399, 2 L. Ed. 479.
From is generally held a word of exclusion ; Wilcox v.
Wood, 9 Wend., N.Y., 346; Ordway v. Remington, 12 R.I.
319, 34 Am.Rep. 646. But a promise made November 1st,
1811, and sued November 1st, 1817, was held barred by
statute of limitation; Presbrey v. Williams, 15 Mass. 193.
Where an act was to be done in a given number of days
from the time of the contract, the day on which the contract was made was included; Brown v. Buzan, 24 Ind. 194;
but if the contract merely says in so may days it means so
many days from the day of date, and that is excluded ;
Blake v. Crowninshield, 9 N.H. 304. A fire policy from one
given date to another includes the last day; whether the
first is included was not decided; L.R. 5 Exch. 296. In
most cases when something is required to be done in a
given time from the day on which an event has happened,
that day is excluded, as in case of proving claims against
the estate of a decedent or insolvent; Weeks v. Hull, 19
Conn. 376, 50 Am.Dec. 249; enrolling deeds, after execution; Seawell v. Williams, 5 Hayw., Tenn., 283; appeal
from arbitrators, afterward; Browne v. Browne, 3 S. &
R., Pa., 496; issuing a scire facias to revive a judgment,
after entry; Appeal of Green, 6 W. & S., Pa., 327; the
time an execution runs, after its date; Homan v. Liswell,
6 Cow., N.Y., 659; redemption from execution sale; id.
518; allowing appeal from a justice; Ex parte Dean, 2
Cow., N.Y., 605, 14 Am.Dec. 521. The principle is thus
well expressed. When time is to be computed from a
particular day or a particular event, as when an act is to be
performed within a specified period from or after a day
named, that day is excluded and the last day included;
Sheets v. Selden, 2 Wall., U.S., 177, 17 L.Ed. 822. But it
was held that in considering the question of barring a writ
of error, the day of the decree is included; Chiles v.
Smith's Heirs, 13 B.Monr., Ky., 460. Six months from
testator's death allowed a legatee to give security not to
marry, are exclusive of that day; 15 Ves. 248.
Whenever they are used with respect to places it is said
that "from," "to," and "at" are taken inclusively according to the subject-matter; Union Pac. R. Co. v. Hall, 91
U.S. 343, 23 L.Ed. 428 (fixing the terminus of a railroad
under an act of congress). From an object to an object in
a deed excludes the terminus referred to; Bonney v. Morrill, 52 Me. 252; State v. Bushey, 84 Me. 459, 24 A. 940.
From place to place means from one place in a town to
another in the same town; Com. v. Inhabitants of Cambridge, 7 Mass. 158; Com. v. Waters, 11 Gray, Mass., 81.
From a street means from any part of it according to circumstances; City of Pittsburg v. Cluley, 74 Pa. 259. From
a town is not always and indeed is seldom exclusive of the
place named; it generally means from some indefinite
place within the town; Chesapeake & 0. Canal Co. v.
Key, 3 Cra.C.C. 599, 606, Fed.Cas.No.2,649. Authority in a
railroad charter to construct a railroad from a city to
another point gives power to construct the road from any
point within the city; Hazlehurst v. Freeman, 52 Ga. 244;
contra North-Eastern R. Co. v. Payne, 8 Rich.L., S.C., 177.
But from a town to another in an indictment for transportation of liquor does not charge it as done within the town ;
State v. Bushey, 84 Me. 459, 24 A. 940. To construe reasonably the expression a road from a village to a creek
within the same village, in a statute, requires that it be
taken inclusively; Smith v. Helmer, 7 Barb., N.Y., 416.
Sailing from a port means out of it; U. S. v. La Coste, 2
Mass. 129, Fed.Cas.No.15,548.
Descent from a parent cannot be construed to mean
through a parent, it must be immediate, from tithe person
796
FRUCTUS
provement and without regard to benefits conferred. Davy v. McNeill, 31 N.M. 7, 240 P. 482,
488.
designated; Gardner v. Collins, 2 Pet., U.S., 58, 86, 7 L.Ed.
347; but the words from the part of the father include a
descent, either immediately from the father or from any
person in the line of the father; Shippen v. Izard, 1 S. &
R., Pa., 222.
From the loading in a marine policy ordinarily means
that the risk is covered after the goods are on board, but
this meaning may be qualified by any words in the policy
indicating a different intention, 16 East 240; L.R. 7 Q.B.
580, 702.
From day to day, In reference to adjournments, usually
means to the next day but, under a statute authorizing the
adjournment of a sale from day to day, a sale is good if
made by adjournment to a day, certain, which did not
i mmediately succeed the first, Burns v. Lyon, 4 Watts, Pa.,
36.3. From henceforth in a lease means from the delivery;
5 Co. 1; so also does one from March 25th last past (the
execution being March 25th) ; 4 B. & C. 272; or one from
an impossible date (as February 30th), or no date, but if
it has a sensible date, the word date in other parts of it
means date, not delivery; 4 B. & C. 908.
FRONTAGE, FRONTAGER. Frontage denotes
line of property on street. Smidt v. McKee, 262
N.Y. 373, 186 N.E. 869, 870. Extent of front along
road or street. Tzeses v. Barbahenn, 125 N.J.L.
643, 17 A.2d 539, 540. Space available for erection
of buildings, and does not include cross streets
or space occupied by sidewalk or any ornamental
spaces in plat between sidewalks and curb. Wallace v. Kramer, 296 Mich. 680, 296 N.W. 838, 842.
FROM ONE PLACE TO ANOTHER. From premises owned by one person to premises owned by
another person in some legal subdivision or from
one legal subdivision to another. Liquor Transportation Cases, 140 Tenn. 582, 205 S.W. 423, 426;
Ready v. State, 155 Tenn. 15, 290 S.W. 28, 29;
State v. White, 111 Kan. 196, 206 P. 903, 904.
FROM PERSON. Includes taking from presence
of person assaulted as well as taking of property
in actual contact with person of one robbed. People v. Kubish, 357 Ill. 531, 192 N.E. 543, 545.
FROM, THROUGH, OR UNDER. The term refers to origin or devolution of property, and unless some title to or interest therein has been
derived by assignment or otherwise from party
adverse to decedent's estate, statute barring testimony is inapplicable. In re Iwers' Estate, 225
Iowa 389, 280 N.W. 579, 582.
FROM TIME TO TIME. Occasionally, at intervals, now and then. Spade v. Hawkins, 60 Ind.
App. 388, 110 N.E. 1010, 1012. See From.
FRONT. Forepart, as opposed to the back or
rear. State v. Read, 162 Iowa, 572; 144 N.W. 310,
311; Howland v. Andrus, 81 N.J.Eq. 175, 86 A. 391,
393.
Any side or face of a building Is a front, although the
word is more commonly used to denote the entrance side.
In re McInerney, 47 Wyo. 258, 34 P.2d 35, 43. As applied
to a bare lot, it Is that side of lot towards which, in ordinary circumstances, house, when built, will most likely
face, and very general usage of building houses with their
main entrance toward shorter street line results in common
understanding that this is side intended when front of lot
is referred to. Rhinehart v. Leitch, 107 Conn. 400, 140 A.
763.
FRONT FOOT. As respects assessment, synonymous with "abutting foot." Moberly v. Hogan,
131 Mo. 19, 32 S.W. 1014.
The rate of assessment is obtained by having the total
cost of the work divided by the total number of square
feet of paving done under the contract; and the quotient
multiplied by one-half of the number of linear feet in the
width of the pavement opposite the property lines. City of
Crowley v. Police Jury of Acadia Parish, 138 La. 488, 70
So. 487, 488.
FRONT-FOOT RULE. One by which cost of improvement is to be apportioned among several
properties in proportion to their frontage on im-
In English law a frontager is a person owning or occupying land which abuts on a highway, river, seashore, or the
like. The term is ge rally used with reference to the liability of frontagers o streets to contribute towards the
expense of paving, drat ing, or other works on the highway carried out by a local authority, in proportion to the
frontage of their respective tenements. Sweet.
The term is also in a similar sense in American law, the
expense of local improvements made by municipal corporations (such as paving, curbing, and sewering) being generally assessed on abutting property owners in proportion
to the "frontage" of their lots on the street or highway,
and an assessment so levied being called a "frontage assessment." Neenan v. Smith, 50 Mo. 531; Lyon v. Tonawanda,
C.C.N.Y., 98 F. 366; City of Youngstown v. Fishel, 89 Ohio
St. 247, 104 N.E. 141, 143, 50 L.R.A.,N.S., 921, Ann.Cas.
1915D, 1073; Standard Oil Co. of Indiana v. Kamradt, 319
Ill. 51, 149 N.E. 538, 539.
FRONTING AND ABUTTING. Very often,
"fronting" signifies abutting, adjoining, or bordering on, depending largely on the context. Rombauer v. Compton Heights Christian Church, 328
Mo. 1, 40 S.W.2d 545, 551. As used in statutes
relating to assessment for improvements, property between which and the improvement there
is no intervening land. Oklahoma Ry. Co. v.
Severns Paving Co., 67 Okl. 206, 170 P. 216-218,
10 A.L.R. 157; Flynn v. Chiappari, 191 Cal. 139,
215 P. 682, 686.
FRONTIER. In international law, that portion
of the territory of any country which lies close
along the border line of another country, and so
"fronts" or faces it. The term means something
more than the boundary line itself, and includes a
tract or strip of country, of indefinite extent, contiguous to the line. Stoughton v. Mott, 15 Vt. 169.
FROZEN SNAKE. A term used to impute ingratitude and held libelous, the court taking judicial
notice of its meaning without an innuendo. 12
Ad. & El. 624.
FRUCTUARIUS. Lat. In the civil law, one who
had the usufruct of a thing; i. e., the use of the
fruits, profits, or increase, as of land or animals.
Inst. 2, 1, 36, 38. Bracton applies it to a lessee,
fermor, or farmer of land, or one who held lands
ad firmam, for a farm or term. Bract. fol. 261.
FRUCTUS. Lat. In the civil law, fruit, fruits;
produce; profit or increase; the organic productions of a thing.
The right to the fruits of a thing belonging to
another.
The compensation which a man receives from
another for the use or enjoyment of a thing, such
797
FRUCTUS
as interest or rent. See Mackeld. Rom. Law, §
167; Inst. 2, 1, 35, 37; Dig. 7, 1, 33; Id. 5, 3, 29;
Id. 22, 1, 34.
FRUGES. In the civil law, anything produced
from vines, underwood, chalk-pits, stone-quarries.
Dig. 50, 16, 77.
FRUCTUS AUGENT HAEREDITATEM. The
yearly increase goes to enhance the inheritance.
Dig. 5, 3, 20, 3.
Grains and leguminous vegetables. In a more
restricted sense, any esculent growing in pods.
Vicat, Voc. Jur.; Calvin.
FRUCTUS CIVILES. All revenues and . recompenses which, though not fruits, properly speaking, are recognized as such by the law. The term
includes such things as the rents and income of
real property, interest on money loaned, and annuities. Civ.Code La. 1900, art. 545.
FRUIT. The produce of a tree or plant which
contains the seed or is used for food. Klas v.
Kuehl, 159 Wis. 561, 150 N.W. 973, 975.
This term, in legal acceptation, is not confined
to the produce of those trees which in popular
language are called "fruit trees," but applies also
to the produce of oak, elm, and walnut trees.
Bullen v. Denning, 5 Barn. & C. 847.
FRUCTUS FUNDI. The fruits (produce or yield)
of land.
FRUCTUS INDUSTRIALES. Industrial fruits,
or fruits of industry. Those fruits of a thing,
as of land, which are produced by the labor and
industry of the occupant, as crops of grain; as
distinguished from such as are produced solely
by the powers of nature. Emblements are so
called in the common law. 2 Steph. Comm. 258;
1 Chit. Gen. Pr. 92. Sparrow v. Pond, 49 Minn.
412, 52 N.W. 36, 16 L.R.A. 103, 32 Am.St.Rep. 571;
Twin Falls Bank & Trust Co. v. Weinberg, 44
Idaho 332, 257 P. 31, 33, 54 A.L.R. 1527. Annual
crops obtained by yearly labor and cultivation.
Koerner v. Wilson, 85 Colo. 140, 274 P. 737, 738, 63
A.L.R. 227.
FRUCTUS LEGIS. The fruit of the law, i. e.
execution.
FRUCTUS NATURALES. Those products which
are produced by the powers of nature alone; as
wool, metals, milk, the young of animals. Spar.
row v. Pond, 49 Minn. 412, 52 N.W. 36, 16 L.R.A.
103, 32 Am.St.Rep. 571; Clark v. Strohbeen, 190
Iowa 989, 181 N.W. 430, 433, 13 A.L.R. 1419.
FRUCTUS PECUDUM. The produce or increase
of flocks or herds.
FRUCTUS PENDENTES. Hanging fruits; those
not severed. The fruits united with the thing
which produces them. These form a part of the
principal thing.
FRUCTUS PENDENTES PARS FUNDI VIDENTUR. Hanging fruits make part of the land.
Dig. 6, 1, 44; 2 Bouv. Inst. no. 1578.
FRUCTUS PERCEPTOS VILLAE NON ESSE
CONSTAT. Gathered fruits do not make a part
of the farm. Dig. 19, 1, 17, 1; 2 Bouv. Inst. no.
1578.
Fruit fallen. The produce of any possession detached therefrom, and capable of being enjoyed
by itself. Thus, a next presentation, when a vacancy has occurred, is a fruit fallen from the advowson. Wharton.
FRUITS, FRUITS OF THE LAND. In replevy
bond, "fruits" includes natural accession to livestock. Southern Surety Co. v. Adams, Tex.Civ.
App., 278 S.W. 943, 946. Includes the increase and
the clip of replevied goats and sheep; "offspring"
and "that which is produced." Southern Surety
Co. v. Adams, 119 Tex. 489, 34 S.W.2d 789, 798.
The right of a possessor to "fruits of the land"
does not permit possessor to extract mineral oil
and gas from land. Elder v. Ellerbe, 135 La. 990,
66 So. 337.
Civil fruits, in the civil law, (fructus civiles)
are such things as the rents and income of real
property, the interest on money loaned, and annuities. Civ.Code La. art. 545. Rents and revenues of an immovable. Posey v. Fargo. 187 La.
122, 174 So. 175, 179.
Natural fruits. The produce of the soil, or of
fruit-trees, bushes, vines, etc., which are edible or
otherwise useful or serve for the reproduction of
their species. The term is used in contradistinction to "artificial fruits," i. e., such as by metaphor
or analogy are likened to the fruits of the earth.
Of the latter, interest on money is an example.
See Civ.Code La. art. 545.
FRUITS OF CRIME. In the law of evidence.
material objects acquired by means and in consequence of the commission of crime, and sometimes constituting the subject-matter of the crime.
Burrill, Circ. Ev. 445; 3 Benth. Jud. Ev. 31.
FRUMENTA QUIE SATA SUNT SOLO CEDERE
INTELLIGUNTUR. Grain which is sown is understood to form a part of the soil. Inst. 2, 1, 32.
FRUCTUS REI ALIENIE. The fruits of another's property; fruits taken from another's estate.
FRUMENTUM. In the civil law, grain. That
which grows in an ear. Dig. 50, 16, 77.
FRUCTUS SEPARATI. Separate fruits; the
fruits of a thing when they are separated from
it. Dig. 7, 4, 13.
FRUMGYLD. Sax. The first payment made to
the kindred of a slain person in recompense for
his murder. Blount.
FRUCTUS STANTES. Standing fruits; those
not yet severed from the stalk or stem.
FRUMSTOLL. Sax. In Saxon law, a chief seat,
or mansion house. Cowell.
798
FUERO
FRUSCA TERRA. In old records, uncultivated
and desert ground. 2 Mon. Angl. 327; Cowell.
FRUTECTUM. In old records, a place overgrown
with shrubs and bushes. Spelman; Blount.
FRUSSURA. A breaking; plowing. Cowell.
FRUTOS. In Spanish law, fruits; products; produce; grains; profits. White, New Recop. b. 1,
tit. 7, c. 5, § 2.
FRUSTRA. Lat. Without effect, in vain, to no
purpose, uselessly; without reason or cause,
groundlessly; in error. Harpers' Lat. Dict.
FRYMITH. In old English law, the affording harbor and entertainment to any one.
FRUSTRA AGIT QUI JUDICIUM PROSEQUI
NEQUIT CUM EFFECTU. He sues to no purpose who cannot prosecute his judgment with effect, [who cannot have the fruits of his judgment.] Fleta, lib. 6, c. 37, § 9.
FRYTHE. Sax. In old English law, a plain between woods. Co.Litt. 5b.
An arm of the sea, or a strait between two,
lands. Cowell.
FRUSTRA [VANA] EST POTENTIA QUIE NUNQUAM VENIT IN ACTUM. That power is to no
purpose which never comes into act, or which is
never exercised. 2 Coke, 51.
FUAGE, FOUAGE, or FEUAGE. Hearth money.
A tax laid upon each fire-place or hearth. An imposition of a shilling for every hearth, levied by
Edward III. in the dukedom of Aquitaine. Spelman; 1 Bl.Comm. 324.
FRUSTRA EXPECTATUR EVENTUS CUJUS EFFECTUS NULLUS SEQUITUR. An event is vainly expected from which no effect follows.
FUER. In old English law, flight. It is of two
kinds: (1) Fuer in fait, or in facto, where a person does apparently and corporally flee; (2) fuer
in ley, or in lege, when, being called in the coanty
court, he does not appear, which legal interpretation makes flight. Wharton.
FRUSTRA FERUNTUR LEGES NISI SUBDITIS
ET OBEDIENTIBUS. Laws are made to no purpose, except for those that are subject and obedient. Branch, Princ.
FRUSTRA FIT PER PLURA, QUOD FIERI P0TEST PER PAUCIORA. That is done to no purpose by many things which can be done by fewer.
Jenk.Cent. p. 68, case 28. The employment of more
means or instruments for effecting a thing than
are necessary is to no purpose.
FRUSTRA LEGIS AUXILIUM INVOCAT
[QUJERIT] QUI IN LEGEM COMMITTIT. He
vainly invokes the aid of the law who transgresses the law. Fleta, lib. 4, c. 2, § 3; 2 Hale,
P.C. 386; Broom, Max. 279, 297.
FRUSTRA PETIS QUOD MOX ES RESTITURUS. In vain you ask that which you will have
immediately to restore. 2 Kames, Eq. 104; 5 Man.
& G. 757.
FRUSTRA PETIS QUOD STATIM ALTERI REDDERE COGERIS. Jenk.Cent. 256. You ask in
vain that which you might immediately be compelled to restore to another.
A grant of privileges and immunities. Conceder
fueros, to grant exemptions.
A charter granted to a city or town. Also designated as "cartas pueblas."
An act of donation made to an individual, a
church, or convent, on certain conditions.
A declaration of 'a magistrate, in relation to taxation, fines, etc.
A charter granted by the sovereign, or those
having authority from him, establishing the franchises of towns, cities, etc.
A place where justice is administered.
A peculiar forum, before which a party is amenable.
FRUSTRA PROBATUR QUOD PROBATUM NON
RELEVAT. That is proved to no purpose which,
when proved, does not help. Halk.Lat.Max. 50.
FRUSTRATION. Where, from nature of contract
and surrounding circumstances, parties from beginning must have known it could not be fulfilled
unless, when time thereof arrived, some particular
condition continued to exist, under doctrine of
"frustration", in absence of warranty that such
condition of things shall exist, contract is to be
construed as subject to implied condition that parties shall be excused in case, before breach, performance becomes impossible or purpose frustrated from such condition ceasing to exist without default of either. Johnson v. Atkins, 53 Cal.
App.2d 430, 127 P.2d 1027, 1028, 1029, 1030.
FRUSTRUM TERIVE. A piece or parcel of land
lying by itself. Co.Litt. 5b.
FUERO. In Spanish law, a law; a code.
A general usage or custom of a province, having the force of law. Strother v. Lucas, 12 Pet.
446, 9 L.Ed. 1137. Ir contra fuero, to violate a received custom.
The jurisdiction of a tribunal, which is entitled
to take cognizance of a cause; as fuero ecclesiastico, fuero militar. See Schm.Civil Law, Introd.
64.
FUERO DE CASTILLA. The body of laws and
customs which formerly governed the Castilians.
FUERO DE CORREOS Y CAMINOS. A special
tribunal taking cognizance of all matters relating
to the post-office and roads.
FUERO DE GUERRA. A special tribunal taking
cognizance of all matters in relation to persons
serving in the army.
FUERO DE MARINA. A special tribunal taking
cognizance of all matters relating to the navy and
to the persons employed therein.
799
FUERO
FUERO JUZGO. The Forum Judicium; a code of
laws established in the seventh century for the
Visigothic kingdom in Spain. Some of its principles and rules are found surviving in the modern
jurisprudence of that country. Schm.Civil Law,
Introd. 28.
FUERO MUNICIPAL. The body of laws granted
to a city or town for its government and the administration of justice.
FUERO REAL. The title of a code of Spanish law
promulgated by Alphonso the Learned, (el Sabio,)
A.D. 1255. It was the precursor of the Partidas.
Schm.Civil Law, Introd. 67.
FUERO VIEJO. The title of a compilation of
Spanish law, published about A.D. 992. Schm.
Civil Law, Introd. 65.
FUGA CATALLORUM. In old English law. A
drove of cattle. Blount.
FUGACIA. A chase. Blount.
FUGAM FECIT. Lat. He has made flight; he
fled. A clause inserted in an inquisition, in old
English law, meaning that a person indicted for
treason or felony had fled. The effect of this is to
make the party forfeit his goods absolutely, and
the profits of his lands until he has been pardoned
or acquitted.
FUGATOR. In old English law, a privilege to
hunt. Blount.
A driver. Fugatores carrucarum, drivers of
wagons. Fleta, lib. 2, c. 78.
FUGITATE. In Scotch practice, to outlaw by the
sentence of a court; to outlaw for non-appearance in a criminal case. 2 Alis. Crim. Pr. 350.
FUGITATION. When a criminal does not obey
the citation to answer, the court pronounces sentence of fugitation against him, which induces a
forfeiture of goods and chattels to the crown.
FUGITIVE. One who flees; always used in law
with the implication of a flight, evasion, or escape
from some duty or penalty or from the consequences of a misdeed.
FUGITIVE FROM JUSTICE. A person who, having committed a crime, flees from jurisdiction of
court where crime was committed or departs from
his usual place of abode and conceals himself
within the district. United States ex rel. Demarois
v. Farrell, C.C.A.Minn., 87 F.2d 957, 960. State v.
Clough, 71 N.H. 594, 53 A. 1086, 67 L.R.A. 946;
People v. Hyatt, 172 N.Y. 176, 64 N.E. 825, 60 L.R.
A. 774, 92 Am.St.Rep. 706.
To be regarded as a "fugitive from justice," it is not
necessary that one shall have left the state for the very
purpose of avoiding prosecution; it being sufficient that,
having committed there an act constituting a crime, he
afterwards has departed from its jurisdiction, and when
sought to be prosecuted is found in another state. Hogan
v. O'Neill, 255 U.S. 52, 41 S.Ct. 222, 65 L.Ed. 497; People
ex rel. Gottschalk v. Brown, 237 N.Y. 483, 143 N.E. 653,
654, 32 A.L.R. 1164; State v. Hayes, 162 La. 917, 111 So.
327, 329 (one who did not flee).
No matter for what purpose or with what motive or
under what belief he leaves state, and even though at time
of leaving he had no belief he had violated criminal laws
and did not contemplate fleeing from justice to avoid prosecution for crime with which he is charged. Ex parte Morris, 131 Tex.Cr.R. 596, 101 S.W.2d 259.
FUGITIVE OFFENDERS. In English law, where
a person accused of any offense punishable by imprisonment, with hard labor for twelve months
or more, has left that part of his majesty's dominions where the offense is alleged to have been
committed, he is liable, if found in any other part
of his majesty's dominions, to be apprehended
and returned in manner provided by the fugitive
offenders' act, 1881, to the part from which he is a
fugitive. Wharton.
FUGITIVE OIL. Oil escaping from well which
was out of control and flowing down creek to
point 10 or 12 miles below the well where it was
picked up was "fugitive" or "waste oil" and belonged to the first taker who might reduce it to
his possession. Linkenhoger v. Brown, Tex.Civ.
App., 128 S.W.2d 163, 164.
FUGITIVE SLAVE. One who, held in bondage,
flees from his master's power.
FUGITIVE SLAVE LAW. An act of congress
passed in 1793 (and also one enacted in 1850) providing for the surrender and deportation of slaves
who escaped from their masters and fled into the
territory of another state, generally a "free" state.
FUGITIVE'S GOODS. Under the old English Law,
where a man fled for felony, and escaped, his
own goods were not forfeited as bona fugitivorum
until it was found by proceedings of record (e. g.
before the coroner in the case of death) that he
fled for the felony. Foxley's Case, 5 Co. 109 a.
FUGITIVUS. In the civil law, a fugitive; a runaway slave. Dig. 11, 4; Cod. 6, 1. See the various
definitions of this word in Dig. 21, 1, 17.
FUGUES. Fr. In medical jurisprudence. Ambulatory automatism. See Automatism.
FULL. Abundantly provided, sufficient in quantity or degree, complete, entire, and detailed. City
of Orlando v. Evans, 132 Fla. 609, 182 So. 264, 268.
Having no open space. In re California Land
Buyers Syndicate, D.C.Cal., 22 F.Supp. 183, 186.
Ample; perfect; mature; not wanting in any essential quality. Mobile School Com'rs v. Putnam,
44 Ala. 537; McCrary v. McCrary, Tex.Civ.App.,
230 S.W. 187, 207.
FULL AGE. The age of legal majority, twentyone years at common law, twenty-five in the civil
law. 1 B1.Comm. 463; Inst. 1, 23, pr.
FULL ANSWER. In pleading, a complete and
meritorious answer, not wanting in any essential.
requisite. Frizell v. Northern Trust Co. of Chicago, Ill., 144 Kan. 481, 61 P.2d 1344, 1345, 1346.
FULL BLOOD. Relations of the "full blood,"
"whole blood," or "entire blood" are those derived
not only from the same ancestor, but from the
800
FUNCTION
same couple of ancestors. In re Skidmore's Estate, 148 Misc. 569, 266 N.Y.S. 312.
in equity) without any exceptions or reservations.
Bank of Mississippi v. Duncan, 52 Miss. 740.
Brothers and sisters of full blood are those who are born
of the same father and mother, or, as Justinian calls them,
"ex utroque parente conjuncti." Nov. 118, cc. 2, 3;
Mackeld.Rom.Law, § 145. The more usual term in modern
law is "whole blood" (q. v.).
FULL LIFE. Life in fact and in law. See In Full
Life.
FULL-PAID STOCK. Stock on which no further
payments can be demanded by the issuing company. Middleton v. Wooster, 184 App.Div. 165, 171
N.Y.S. 593, 595.
FULL COPY. In equity practice, a complete and
unabbreviated transcript of a bill or other pleading, with all indorsements, and including a copy
of all exhibits. Finley v. Hunter, 2 Strob. Eq., S.
C., 210, note.
FULL COURT. In practice, a court in banc. A
court duly organized with all the judges present.
Court containing permissible complement of
judges, as distinguished from a quorum of two.
Textile Mills Securities Corporation v. Commissioner of Internal Revenue, 314 U.S. 326, 62 S.Ct.
272, 277, 86 L.Ed. 249.
FULL COUSIN. Son or daughter of one's uncle
or aunt. Culver v. Union & New Haven Trust Co.,
120 Conn. 97, 179 A. 487, 489, 99 A.L.R. 663.
FULL COVENANTS. See Covenant.
FULL DEFENSE. In pleading, the formula of
defense in a plea, stated at length and without
abbreviation, thus: "And the said C. D., by E. F.,
his attorney, comes and defends the force (or
wrong) and injury when and where it shall behoove him, and the damages, and whatsoever else
he ought to defend, and says," etc. Steph. Pl. p.
481.
FULL FAITH AND CREDIT. "Full faith and
credit" clause of Const. U. S. art. 4, § 1, requires
that foreign judgment be given such faith and
credit as it had by law or usage of state of its
origin. First Nat. Bank v. Terry, 103 Cal.App.
501, 285 P. 336, 337. That foreign statutes are to
have force and effect to which they are entitled
in home state. Flahive v. Missouri, K. & T. R. Co.,
131 Misc. 586, 227 N.Y.S. 587, 588. And that a judgment or record shall have the same faith, credit,
conclusive effect, and obligatory force in other
states as it has by law or usage in the state from
whence taken. Christmas v. Russell, 5 Wall. 302,
18 L.Ed. 475; McElmoyle v. Cohen, 13 Pet. 326,
10 L.Ed. 177; Pennsylvania Fire Ins. Co. of Philadephia v. Gold Issue Min. & Mill. Co., 243 U.S. 93,
37 S.Ct. 344, 61 L.Ed. 610.
FULL HEARING. Embraces not only the right
to present evidence, but also a reasonable opportunity to know the claims of the opposing party,
and to meet them. Morgan v. U. S., 304 U.S. 1,
58 S.Ct. 773, 776, 777, 82 L.Ed. 1129.
One in which ample opportunity is afforded to all parties
to make, by evidence and argument, a showing fairly adequate to establish the propriety or impropriety from the
standpoint of justice and law of the step asked to be taken.
Akron, C. & Y. Ry. Co. v. U. S., 261 U.S. 184, 43 S.Ct. 270,
67 L.Ed. 605; State v. Hunt, 137 Tenn. 243, 192 S.W. 931,
932.
FULL INDORSEMENT. See Indorsement.
FULL JURISDICTION. Complete jurisdiction
over a given subject-matter or class of actions (as,
Black's Law Dictionary Revised 4th Ed.-51
FULL PARTICULARS. Where contract of insurance requires giving "full particulars" of an
accident as a condition precedent to liability, unnecessary details are not required, but only such
as enables insurer to determine, whether a claim
was likely to be made, and the insured was not
required to make an exhaustive investigation of
all the attendant circumstances or decide what the
facts were on conflicting evidence. Silberstein v.
Vellerman, 241 Mass. 80, 134 N.E. 395, 397.
FULL POWERS. A document issued by the government of a state empowering its diplomatic
agent to conduct special business with a foreign
government.
FULL PROOF. In the civil law, proof by two witnesses, or a public instrument. Hallifax, Civil.
Law, b. 3, c. 9, nn. 25, 30; 3 Bl.Comm. 370. Evidence which satisfies the minds of the jury of the
truth of the fact in dispute, to the entire exclusion
of every reasonable doubt. Kane v. Hibernia Mut.
F. Ins. Co., 38 N.J.L. 450, 20 Am.Rep. 409.
FULL RIGHT. The union of a good title with actual possession.
FULL SETTLEMENT. Implies an adjustment of
all pending matters, the mutual release of all prior
obligations existing between the parties. Hickox
v. Hickox, Tex.Civ.App., 151 S.W.2d 913, 918.
FULLUM AQUIE. A fleam, or stream of water.
Blount.
FULLY ADMINISTERED. The English equivalent of the Latin phrase "plene administravit;"
being a plea by an executor or administrator that
he has completely and legally disposed of all the
assets of the estate, and has nothing left out of
which a new claim could be satisfied. See Ryans
v. Boogher, 169 Mo. 673, 69 S.W. 1048.
FUMAGE. In old English law, the same as fuage,
or smoke farthings. 1 Bl.Comm. 324. See Fuage.
FUNCTION. Derived from Latin "functus," the
past participle of the verb "fungor" which means
to perform, execute, administer. McNamara v.
Powell, Sup., 52 N.Y.S.2d 515, 551.
The nature and proper action of anything; activity appropriate to any business or profession.
Rosenblum v. Anglim, D.C.Cal., 43 F.Supp. 889,
892.
Office; duty; fulfillment of a definite end or
set of ends by the correct adjustment of means.
The occupation of an office. By the performance
of its duties, the officer is said to fill his function.
801
FUNCTIONAL
Dig. 32, 65, 1. State v. Hyde, 121 Ind. 20, 22 N.E.
644. The proper activities or duties of municipality. Bean v. City of Knoxville, 180 Tenn. 448,
175 S.W.2d 954, 955.
FUNCTIONAL CLAIM. One which claims function. In re Tucker, Cust. & Pat. App., 46 F.2d 214,
216. See Claim.
FUNCTIONAL DEPRECIATION. Results from
necessary replacement of equipment before it is
worn out, by reason of invention and improved
appliances which render more efficient and satisfactory service. Guaranty Trust Co. of New York
v. Grand Rapids, G. H. & M. Ry, Co., D.C.Mich., 7
F.Supp. 511, 521,
FUNCTIONAL DISEASE. In medical jurisprudence, one which prevents, obstructs, or interferes
with the due performance of its special functions
by any organ of the body, without anatomical defect or abnormality in the organ itself. See Higbee v. Guardian Mut. L. Ins. Co., 66 Barb., N.Y.
472. Distinguished from "organic" disease, which
is due to some injury to, or lesion or malformation in, the organ in question.
FUNCTIONARY. A public officer or employee.
An officer of a private corporation is also sometimes so called.
Functus officio. Lat. A task performed. Board
of School Trustees of Washington City Administrative Unit v. Benner, 222 N.C. 566, 24 S.E.2d 259,
263.
Having fulfilled the function, discharged the office, or
accomplished the purpose, and therefore of no further force
or authority. Applied to an officer whose term has expired,
and who has consequently no further official authority;
and also to an instrument, power, agency, etc., which has
fulfilled the purpose of its creation, and is therefore of no
further virtue or effect. Blanton Banking Co. v. Taliaferro,
Tex.Civ.App., 262 S.W. 196.
used it must be understood as referring to a debt embodied
in securities of a permanent character and to the payment
of which certain property has been applied or . pledged.
Wells v. Wells, Super.N.Y., 24 N.Y.S. 874.
Funding system. The practice of borrowing money to
defray the expenses of government, and creating a "sinking
fund," designed to keep down interest, and to effect the
gradual reduction of the principal debt. Merrill v. Monticello, C.C.Ind., 22 F. 596.
FUND,
A generic term and all-embracing as
compared with term "money," etc., which is specific. Bivins V. State, 47 Ga.App. 391, 170 S.E.
513, 516.
A sum of money set apart for a specific purpose, or available for the payment of debts or
claims. State v. Finney, 141 Kan. 12, 40 P.2d 411,
421.
In its narrower and more usual sense, "fund" signifies
"capital," as opposed to "interest" or "income;" as where
we speak of a corporation funding the arrears of interest
due on its bonds, or the like, meaning that the interest is
capitalized and made to bear interest in its turn until it is
repaid. Sweet.
In the plural, this word has a variety of slightly different meanings, as follows:
Moneys and much more, such as notes, bills,
checks, drafts, stocks and bonds, and in broader
meaning may include property of every kind.
State v. Finney, 141 Kan. 12, 40 P.2d 411, 421.
Money in hand; assets; cash; money available
for the payment of a debt, legacy, etc. Galena
Ins. Co. v. Kupfer, 28 Ill. 335, 81 Am.Dec. 284;
U. S. v. Jenks, D.C.Pa., 264 F. 697, 698; Johnson
v. State, 37 Ga.App. 129, 139 S.E. 118, 119.
The proceeds of sales of real and personal estate, or the proceeds of any other assets converted into money. Doane v. Insurance Co., 43 N.J.
Eq. 533, 11 A. 739; Illinois Christian Missionary
Soc. v. American Christian Missionary Soc., 277
Ill. 193, 115 N.E. 118, 120.
Corporate stocks or government securities; in
this sense usually spoken of as the "funds."
FUND, v. To capitalize with a view to the production of interest. Stephen v. Milnor, 24 N.J.
Eq. 376. Also, to put into the form of bonds,
stocks, or other securities, bearing regular interest, and to provide or appropriate a fund or
permanent revenue for the payment thereof. Merrill v. Monticello, C.C.Ind., 22 F. 596. City of Long
Beach v. Lisenby, 180 Cal. 52, 179 P. 198, 201.
To fund a debt is to pledge a specific fund to
keep down the interest and reduce the principal.
Assets, securities, bonds, or revenue of a state
or government appropriated for the discharge of
its debts. State v. Hudson, 93 W.Va. 435, 117 S.E.
122, 126; Broadway Bank of St. Louis, Mo., v.
McGee Creek Levee & Drainage Dist., 292 Ill. 560,
127 N.E. 165, 166; State v. Board of Education of
Sharples Village School Dist., 114 Ohio St. 602,
151 N.E. 669, 670.
Funded debt. As applied to states or municipal corporations, a funded debt is one for the payment of which
(interest and principal) some fund is appropriated, either
specifically, or by provision made for future taxation and
the quasi pledging in advance of the public revenue.
Ketchum v. Buffalo, 14 N.Y. 356; People v. Carpenter, 52
N.Y.S. 781, 31 App.Div. 603. As applied to the financial
management of corporations (and sometimes of estates in
course of administration or properties under receivership)
funding means the borrowing of a sufficient sum of money
to discharge a variety of floating or unsecured debts, or
debts evidenced by notes or secured by bonds but maturing
within a short time, and creating a new debt in lieu
thereof, secured by a general mortgage, a series of bonds,
or an issue of stock, generally maturing at a more remote
period, and often at a lower rate of interest. The new debt
thus substituted for the pre-existing debts is called the
"funded debt." Ketchum v. Buffalo, 14 N.Y. 356; Lawrey
v. Sterling, 41 Or. 518, 69 P. 460. This term is very seldom
applied to the debts of a private individual; but when so
Current funds. Current money, whatever is receivable
and current by law as money. Henderson v. Farmers' Say.
Bank of Harper, 199 Iowa 496, 202 N.W. 259, 261; Feder v.
Elliott, 198 Iowa 447, 199 N.W. 288, 289, 36 A.L.R. 1353.
General fund. This phrase, in New York, is a collective
designation of all the assets of the state which furnish the
means for the support of government and for defraying the
discretionary appropriations of the legislature. People v.
Orange County Sup'rs, 27 Barb., N.Y., 575, 588. It has also
been used in Delaware in the messages of the governor and
other state papers to distinguish such funds as. are available
in the hands of the state treasurer for general purposes
from assets of a special character, such as the school fund.
General revenue fund. As used in connection with municipal finances, the usual, ordinary, running, and incidental
expenses of a municipality. Atchison, T. & S. F. Ry. Co.
v. City of Topeka, 95 Kan. 747, 149 P. 697.
No funds. This term denotes a lack of assets or money
for a specific use. It is the return made by a bank to a
802
FURIOSITY
check drawn upon it by a person who has no deposit to his
credit there; also by an executor, trustee, etc., who has no
assets for the specific purpose.
Public funds. An untechnical name for (1) the revenue
or money of a government, state, or municipal corporation;
(2) the bonds, stocks, or other securities of a national or
state government. Money, warrants, or bonds, or other
paper having a money value, and belonging to the state, or
to any county, city, incorporated town or school district.
Crawford & Moses' Dig. (Ark.) § 2835; Bank of Blytheville v. State, 148 Ark. 504, 230 S.W. 550, 553. The term
applies to funds of every political subdivision of state
wherein taxes are levied for public purposes. JEtna Casualty & Surety Co. v. Bramwell, D.C.Or., 12 F.2d 307, 309.
Revolving fund. Usually, a renewable credit over a
defined period. In simple parlance it relates usually to a
situation where a banker or merchant extends credit for a
certain amount which can be paid off from time to time and
then credit is again given not to exceed the same amount.
It may also mean a fund, which, when reduced, is replenished by new funds from specified sources. U. S. v. Butterworth-Judson Corporation, C.C.A.N.Y., 297 F. 971, 979.
Sinking fund. The aggregate of sums of money (as those
arising from particular taxes or sources of revenue) set
apart and invested, usually at fixed intervals, for the extinguishment of the debt of ,a government or corporation, by
the accumulation of interest. Elser v. Ft. Worth, Tex.Civ.
App., 27 S.W. 740; Brooke v. Philadelphia, 162 Pa. 123, 29
A. 387, 24 L.R.A. 781. A fund arising from particular
taxes, imposts, or duties, which is appropriated towards the
payment of the interest due on a public loan and for the
gradual payment of the principal. Union Pac. R. Co. v.
Buffalo Co., 9 Neb. 453, 4 N.W. 53; Sidney Spitzer & Co. v.
Commissioners of Franklin County, 188 N.C. 30, 123 S.E.
636, 639. A fund created for extinguishing or paying a
funded debt. Ketchum v. Buffalo, 14 N.Y. 379, cited in
Chicago & I. R. Co. v. Pyne, C.C.N.Y., 30 F. 89.
Sinking fund tax. A tax raised to be applied to the payment of interest on, and principal of public loan. Sidney
Spitzer & Co. v. Commissioners of Franklin County, 188
N.C. 30, 123 S.E. 636, 639; Union Pac. R. Co. v. York
County, 10 Neb. 612, 7 N.W. 270.
FUNDAMENTAL ERROR. See Error.
FUNDAMENTAL LAW. The law which determines the constitution of government in a state,
and prescribes and regulates the manner of its
exercise; the organic law of a state; the constitution.
FUNDAMUS. We found. One of the words by
which a corporation may be created in England.
1 Bl.Comm. 473; 3 Steph.Comm. 173.
FUNDATIO. Lat. A founding or foundation.
Particularly applied to the creation and endowment of corporations.
As applied to eleemosynary corporations such as colleges
and hospitals, it is said that "fundatio incipiens" is the
incorporation or grant of corporate powers, while "fundatio perficiens" is the endowment or grant or gift of funds
or revenues. Dartmouth College v. Woodward, 4 Wheat.
667, 4 L. Ed. 629.
FUNDATOR. A founder (q. v.).
FUNDI PATRIMONIALES. Lands of inheritance.
FUNERAL EXPENSES. Money expended in procuring the interment, cremation, or other disposition of a corpse, including suitable monument, perpetual care of burial lot and entertainment of
those participating in wake. Gooch v. Beasley,
137 Tenn. 407, 193 S.W. 132, 133; Nelson v. Schoonover, 89 Kan. 388, 131 P. 147, 149; In re Borchardt's Will, 184 Wis. 561, 200 N.W. 461, 464;
Oster's Ex'r v. Ohlman, 187 Ky. 341, 219 S.W. 187,
190; In re Gilchrist's Estate, 110 N.J.Eq. 666, 128
A. 876.
FUNGIBLE THINGS. Movable goods which may
be estimated and replaced according to weight,
measure, and number. Things belonging to a
class, which do not have to be dealt with in specie.
Standard Bank of Canada v. Lowman, D.C.Wash.,
1 F.2d 935, 940; Edwards v. Cleveland Mill & Power Co., 193 N.C. 780, 138 S.E. 131, 134, 53 A.L.R.
1404.
Those things one specimen of which is as good as
another, as is the case with half-crowns, or pounds of rice
of the same quality. Horses, slaves, and so forth, are nonfungible things, because they differ individually in value,
and cannot be exchanged indifferently one for another.
Holl.Jur. 88.
Where a thing which is the subject of an obligation
( which one man is bound to deliver to another) must be
delivered in specie, the thing is not fungible; that very
individual thing, and not another thing of the same or
another class, in lieu of it, must be delivered. Where the
subject of the obligation is a thing of a given class, the
thing is said to be fungible; i. e., the delivery of any
object which answers to the generic description will satisfy
the terms of the obligation. Aust.Jur. 483, 484.
FUNGIBILES RES. Lat. In the civil law, fungible things. See that title.
FUR. Lat. A thief. One who stole secretly or
without force or weapons, as opposed to robber.
FUR MANIFESTUS. In the civil law, a manifest
thief. A thief who is taken in the very act of
stealing.
FURANDI ANIMUS. Lat. An intention of stealing.
FURCA. In old English law, a fork. A gallows
or gibbet. Bract. fol. 56.
FURCA ET FLAGELLUM. Gallows and whip.
Tenure ad furcam et flagellum, tenure by gallows
and whip. The meanest of servile tenures, where
the bondman was at the disposal of his lord for
life and limb. Cowell.
FURCA ET FOSSA. Gallows and pit, or pit and
gallows. A term used in ancient charters to signify a jurisdiction of punishing thieves, viz., men
by hanging, women by drowning. Spelman;
Cowell.
FURIAN LAW. See Lex Furia Caninia.
FUNDI PUBLIC!. Public lands.
FURIGELDUM. A fine or mulct paid for theft.
FUNDITORES. Pioneers. Jacob.
FUNDUS. In the civil and old English law, land;
land or ground generally; land, without considering its specific use; land, including buildings
generally; a farm.
FURIOSI NULLA VOLUNTAS EST. A madman
has no will. Dig. 50, 17, 40; Broom, Max. 314.
FURIOSITY. In Scotch law, madness, as distinguished from 'fatuity or idiocy.
803
FURIOSUS
FURIOSUS. Lat. An insane man; a madman; a
lunatic.
FURIOSUS ABSENTIS LQCO EST. A madman
is the same with an absent person, [that is, his
presence is of no effect.] Dig. 50, 17, 24, 1.
FURIOSUS NULLUM NEGOTIUM CONTRA..
HERE POTEST. A madman can contract nothing, [can make no contract]. Dig. 50, 17, 5.
FURIOSUS SOLO FURORE PUNITUR. A madman is punished by his madness alone; that is,
he is not answerable or punishable for his actions.
Co.Litt. 247b; 4 Bl.Comm. 24, 396; Broom, Max.
15.
FURIOSUS STIPULARE NON POTEST NEC
ALIQUID NEGOTIUM AGERE, QUI NON INTELLIGIT QUID AGIT. 4 Coke, 126. A madman
who knows not what he does cannot make a bargain, nor transact any business.
FURLINGUS. A furlong, or a furrow one-eighth
part of a mile long. Co.Litt. 5b.
FURLONG. A measure of length, being forty
poles, or one-eighth of a mile.
FURLOUGH. A leave of absence. Smith v. Sovereign Camp, W. 0. W., 204 S.C. 193, 28 S.E.2d
808, 811. A temporary leave of absence to one in
the armed service of the country, or to a government official or an employee, indicating some voluntary act on part of employee as contrasted with
the phrase "lay-off" which contemplates action by
employer. Jones v. Metropolitan Life Ins. Co.,
156 Pa.Super. 156, 39 A.2d 721, 725. Also the document granting leave of absence.
In United States army furloughs are given only to
enlisted men, officers being given leaves of absence. In
United States navy furlough is an extended leave of
absence, or a suspension from duty by an executive order,
on half leave-of-absence pay, given only to an officer. A
permit or passport. As a transitive verb, it means "to
grant a furlough to; broadly, to allow leave of absence
to." Ex parte Roach, D.C.Ala., 244 F. 625, 628.
FURNAGE. See Fornagium; Four.
FURNISH. To supply or provide. Talbott v.
Caudill, 58 S.W.2d 385, 248 Ky. 146. For use in
the accomplishment of a particular purpose. William M. Graham Oil & Gas Co. v. Oil Well Supply
Co., 128 Okl. 201, 264 P. 591, 599. Implying some
degree of active effort to accomplish the designated end. In re Opinion of the Justices, Mass., 304
Mass. 172, 14 N.E.2d 392, 393, 115 A.L.R. 1158. To
provide for, to provide what is necessary for, to
give, or afford. Juno v. Northland Elevator Co.,
56 N.D. 223, 216 N.W. 562, 563. Equip synonymous. State ex rel. Davis v. Barber, 139 Fla. 706,
190 So. 809. To deliver, whether gratuitously or
otherwise. Delp v. Brewing Co., 123 Pa. 42, 15
A. 871; Wyatt v. Larimer & W. Irr. Co., 1 Colo.
App. 480, 29 P. 906. As used in the liquor laws,
"furnish" means to provide in any way, and includes giving as well as selling. State v. Freeman, 27 Vt. 520; State v. Tague, 76 Vt. 118, 56 A.
535; Creel v. U. S., C.C.A.Okl., 21 F.2d 690; In
re American Lime Co., D.C.Tenn., 201 F. 433, 434.
To supply or provide in any way other than by
sale. State v. McDermott, 108 Vt. '58, 182 A. 191.
192.
FURNITURE. This term includes that which furnishes, or with which anything is furnished or
supplied; whatever must be supplied to a house,
a room, place of business, or public building or the
like, to make it habitable, convenient, or agreeable; goods, vessels, utensils, and other appendages necessary or convenient for housekeeping;
whatever is added to the interior of a house or
apartment, for use or convenience. Bell v. Golding, 27 Ind. 173; C. Ludwig Baumann & Co.,
Brooklyn, v. Manwit Corporation, 213 App.Div.
300, 207 N.Y.S. 437, 439; Fire Ass'n of Philadelphia
v. Powell, Tex.Civ.App., 188 S.W. 47, 49; Smalley
v. Dent County, Mo.Sup., 177 S.W. 620, 623.
The word comprehends only such furniture as is intended
for use and ornament of apartments, but not libraries
which happen to be there, nor plate. Civ.Code La. art.
477.
The term embraces everything about the house that has
been usually enjoyed therewith, including plate, linen,
china, and pictures, rugs, draperies and furnishings. Endicott v. Endicott, 41 N.J.Eq. 96, 3 A. 157; In re Kathan's
Estate, 153 N.Y.S. 366, 368, 90 Misc.Rep. 540; Peckham v.
Peckham, 97 N.J.Eq. 174, 127 A. 93. Readily movable articles which would be serviceable generally as household
furniture. Farm & Home Savings & Loan Ass'n of Missouri v. Empire Furniture Co., Tex.Civ.App., 87 S.W.2d
1111, 1112.
Household furniture includes all personal chattels that
may contribute to the use or convenience of the householder, or the ornament of the house; as plate, linen,
china, both useful and ornamental, and pictures. But goods
in trade, books, and wines will not pass by a bequest of
household furniture. 1 Rop.Leg. 203.
FURNITURE OF A SHIP. This term includes
everything with which a ship requires to be furnished or equipped to make her seaworthy; it
comprehends all articles furnished by ship chandlers, which are almost innumerable. Weaver v.
The S. G. Owens, 1 Wall.Jr. 369, Fed.Cas.No.17,310.
FURNIVAL'S INN. Formerly an inn of chancery. See Inns of Chancery.
FUROR BREVIS. A sudden transport of passion.
Mosby v. Commonwealth, 168 Va. 688, 190 S.E.
152, 155.
FUROR CONTRAHI MATRIMONIUM NON SIN..
IT, QUIA CONSENSU OPUS EST. Insanity prevents marriage from being contracted, because
consent is needed. Dig. 23, 2, 16, 2; 1 Ves. & B.
140; 1 Bl.Comm. 439; Wightman v. Wightman, 4
Johns.Ch., N.Y., 343, 345.
FURST AND FONDUNG. In old English law,
time to advise or take counsel. Jacob:
FURTA. A right derived from the king as supreme lord of a state to try, condemn, and execute thieves and felons within certain bounds or
districts of an honour, manor, etc. Cowell seems
to be doubtful whether this word should not read
furca, which means directly a gallows. Cowell;
Holthouse, L.Dict.
FURTHER. Not word of strict legal or technica2
import, and may be used to introduce negation
804
FUSEL
FURTHERANCE. Act of furthering, helping
forward, promotion, advancement, or progress.
Maryland Casualty Co. v. Smith, Tex.Civ.App., 40
S.W.2d 913, 914.
or qualification of some precedent matter, but
generally when used as an adverb it is word of
comparison, and means "additional," and is equivalent to "moreover, or furthermore, something beyond what has been said or likewise, or also."
Hollman v. Hollman, 88 Cal.App. 748, 264 P. 289,
290. Wider, or fuller, or something new. In re
Andrus' Will, 156 Misc. 268, 281 N.Y.S. 831. Occasionally it may mean any, future, or other. London & S. F. Bank v. Parrott, 125 Cal. 472, 58 P.
164, 73 Am.St.Rep. 64; Galpin v. City of Chicago,
269 Ill. 27, 109 N.E. 713, 717, L.R.A.1917B, 176;
Smith v. Craig, 211 N.Y. 456, 105 N.E. 798, 800,
Ann.Cas.1915B, 937.
FURTHERANCE OF BUSINESS OF EMPLOYER. Discharge of duties of employment, as respects employer's liability for employees' torts.
West v. F. W. Woolworth Co., 215 N.C. 211, 1 S.E.
2d 546, 548.
FURTIVE. In old English law, stealthily; by
stealth. Fleta, lib. 1, c. 38, § 3.
FURTUM. Lat. Theft. The fraudulent appropriation to one's self of the property of another,
with an intention to commit theft without the
consent of the owner. Fleta, L 1, c. 36; Bract.
fol. 150; 3 Inst. 107.
The thing which has been stolen. Bract. fol.
151.
FURTHER ADVANCE. A second or subsequent
loan of money to a mortgagor by a mortgagee,
either upon the same security as the original loan
was advanced upon, or an additional security.
Equity considers the arrears of interest on a mortgage security converted into principal, by agreement between the parties, as a further advance.
Wharton.
FURTUM CONCEPTUM. In Roman law, the
theft which was disclosed where, upon searching
any one in the presence of witnesses in due form,
the thing stolen was discovered in his possession.
FURTHER ASSURANCE, COVENANT FOR.
See Covenant.
FURTHER CONSIDERATION. In English practice, upon a motion for judgment or application
for a new trial, the court may, if it shall be of
opinion that it has not sufficient materials before
it to enable it to give judgment, direct the motion
to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be
taken and made, as it may think fit. Rules Sup.
Ct. xl, 10.
FURTUM EST CONTRECTATIO REI ALLENZE
FRAUDULENTA, CUM ANIMO FURANDI, INVITO ILLO DOMINO CUJUS RES ILLA FUERAT. 3 Inst. 107. Theft is the fraudulent handling
of another's property, with an intention of stealing, against the will of the proprietor, whose property it was.
FURTHER DIRECTIONS. Where a master made
a separate report, or one not in pursuance of a
decree or decretal order, a petition for consequential directions had to be presented, since the cause
could not be set down for further directions under
such circumstances. See 2 Daniell, Ch.Pr. (5th
Ed.) 1233, note.
FURTHER HEARING, or FURTHER PROCEEDINGS. In practice, hearing at another time; new
trial; or other proceedings directed by appellate
court. C. W. Hunt Co. v. Boston Elevated Ry.
Co., 217 Mass. 319, 104 N.E. 728, 729; Morgan Esgineering Co. v. Cache River Drainage Dist., 122
Ark. 491, 184 S.W. 57, 59. Not a new proceeding
but rather a continuation of an existing proceeding. In re Mills' Estate, 171 Misc. 42, 11 N.Y.S.2d
929, 932.
FURTHER INSTRUCTIONS. Additional instructions given to jury after they have once been instructed and have retired. White v. Sharpe, 219
Mass. 393, 107 N.E. 56.
FURTHER MAINTENANCE OF ACTION, PLEA
TO. A plea grounded upon some fact or facts
which have arisen since the commencement of the
suit, and which the defendant puts forward for
the purpose of showing that the plaintiff should
not further maintain his action. Brown.
FURTUM GRAVE. In Scotch law, an aggravated
degree of theft, anciently punished with death. It
still remains an open point what amount of value
raises the theft to this serious denomination. 1
Broun, 352, note. See 1 Swint. 467.
FURTUM MANIFESTUM. Open theft. Theft
where a thief is caught with the property in his
possession. Bract. fol. 150b.
FURTUM NON EST UBI INITIUM HABET DETENTIONIS PER DOMINIUM REI. 3 Inst. 107.
There is no theft where the foundation of the detention is based upon ownership of the thing.
FURTUM OBLATUM. In the civil law, offered
theft. Oblatum furtum dicitur cum res furtiva
ab aliquo tibi oblata sit, eaque apud to concepta
sit. Theft is called "oblatum" when a thing stolen is offered to you by any one, and found upon
you. Inst. 4, 1, 4.
FUSE PLUG LEVEES. Under Mississippi Flood
Control Act lower points for possible flood spillways were designated "fuse plug levees." U. S. v.
Sponenbarger, Ark., 308 U.S. 256, 60 S.Ct. 225, 227,
84 L.Ed. 230.
FUSEL OIL. A volatile oily liquid obtained in
the rectification of spirituous liquors made from
the fermentation of grain, potatoes, the mart of
grapes, and other material; its chief constituent
being amyl alcohol, a direct nerve poison. Cal-
805
FUST
kins v. National Travelers' Ben. Ass'n of Des
Moines, 200 Iowa 60, 204 N.W. 406, 407, 41 A.L.R.
363.
FUST. See Fuz.
FUSTIGATIO. In old English law, a beating with
sticks or clubs; one of the ancient kinds of punishment of malefactors. Bract. fol. 104b, lib. 3,
tr. 1, c. 6.
FUSTIS. In old English law, a staff, used in making livery of seisin. Bract. fol. 40.
A baton, club, or cudgel.
FUTHWITE, or FITHWITE. A fine for fighting
or breaking the peace. Cowell; Cun.L.Dict.
FUTURE ACQUIRED PROPERTY. Mortgages,
especially of railroad companies are frequently
made in terms to cover after-acquired property;
such as rolling stock, etc. Philadelphia, W. & B.
R. Co. v. Woelpper, 64 Pa. 366, 3 Am.Rep. 596;
Shaw v. Bill, 95 U.S. 10, 24 L.Ed. 333; L.R. 16 Eq.
383. This may include future net earnings; Dunham v. Isett, 15 Iowa 284; the proceeds to be received from the sale of surplus lands; L.R. 2 Ch.
201; a ditch or flume in process of construction,
which was held to cover all improvements and
fixtures thereafter to be put on the line thereof;
De Arguello v. Greer, 26 Cal. 620; rolling stock
etc.; Philadelphia, W. & B. R. Co. v. Woelpper,
64 Pa. 366, 3 Am.Rep. 596; Benjamin v. R. Co.,
49 Barb., N.Y., 441. Future calls of assessments
on stock cannot be mortgaged; L.R. 10 Eq. 681;
but calls already made can be; id.
A will speaks as of the death of the testator
and ordinarily passes property acquired after its
date.
FUTURE DEBT. In Scotch law, a debt which is
created, but which will not become due till a future day. 1 Bell, Comm. 315.
FUTURE EARNINGS. A convenient way of designating earnings which, if it had not been for injury, could have been made in future, but which
were lost as result of injury. Nowlin v. Kansas
City Public Service Co., Mo.App., 58 S.W.2d 324.
FUTURE ESTATE. See Estate.
The nominal seller does not have or expect to have the
stock or merchandise he purports to sell, nor does the
nominal buyer expect to receive it or to pay the price.
Instead of that, a percentage or margin is paid, which is
increased or diminished as the market rates go up or down,
and accounted for to the buyer. King v. Quidnick Co., 14
R.I. 138; Lemonius v. Mayer, 71 Miss. 514, 14 So. 33;
Plank v. Jackson, 128 Ind. 424, 26 N.E. 568; S. M. Weld &
Co. v. Austin, 107 Miss. 279, 65 So. 247, 248.
FUTURI. Lat. Those who are to be. Part of
the commencement of old deeds. "Sciant prcesentes et futuri, quod ego talis, dedi et concessi,"
etc., (Let all men now living and to come know
that I, A. B., have, etc.) Bract. fol. 34b.
FUZ, or FUST. A Celtic word, meaning a wood
or forest.
F. W. C. Free Woman of Color, up to the time
of Civil War, applied to all persons not of the
white race, including Indians. Sunseri v. Cassagne, 191 La. 209, 185 So. 1, 4.
FYHTWITE. One of the fines incurred for homicide.
FYKE. A fish-trap consisting of several successive conical nets with widestretched mouths. Mitchell v. Curtis, 135 Or. 595, 296 P. 1078. A bownet for catching fish. Pub.St.Mass.1882, p. 1291.
Cf. Pound Net.
FYLE. In old Scotch law, to defile; to declare
foul or defiled. Hence, to find a prisoner guilty.
FYLIT. In old Scotch practice, fyled; found guilty. See Fyle.
FYNDERINGA. (Sax.) An offense or trespass
for which the fine or compensation was reserved
to the king's pleasure. Leges Hen. L c. 10. Its
nature is not known. Spelman reads fynderinga,
and interprets it treasure trove; but Cowell reads
fyrderinga, and interprets it a joining of the
king's fird or host, a neglect to do which was punished by a fine called firdwite. See Spelman,
Gloss. Du Cange agrees with Cowell.
FYRD. Sax. In Anglo-Saxon law, the military
array or land force of the whole country. Contribution to the fyrd was one of the imposts forming the trinoda necessitas. ( Also spelled "ferd"
and "fird.")
FYRDFARE. A summoning forth to join a military expedition; a summons to join the fyrd or
army.
FUTURE INTERESTS. Interests In land or other things in which the privilege of possession or
of enjoyment is future and not present. Commissioner of Internal Revenue v. Wells, C.C.A.6, 132
F.2d 405, 407.
FYRDSOCNE, (or fyrdsoken.) Exemption from
military duty; exemption from service in the
fyrd.
FUTURES. This term has grown out of those
purely speculative transactions, in which there is
a nominal contract of sale for future delivery, but
where in fact none is ever intended or executed.
FYRDWITE. A fine imposed for neglecting to
join the fyrd when summoned. Also a fine imposed for murder committed in the army; also
an acquittance of such fine.
806
GALE
G
Gage, estates in. Those held in vadio, or pledge.
They are of two kinds: (1) Vivum vadium, or living pledge, or vifgage; (2) mortuum vadium, or
dead pledge, better known as "mortgage."
G. In the Law French orthography, this letter
is often substituted for the English W, particularly as an initial. Thus, "gage" for "wage,"
"garranty" for "warranty," "gast" for "waste."
G. A. O. General Accounting Office.
GAGER DE DELIVERANCE. In old English law,
when he who has distrained, being sued, has not
delivered the cattle distrained, then he shall not
only avow the distress, but gager deliverance, i. e.,
put in surety or pledge that he will deliver them.
Fitzh.Nat.Brev.
G. S. A. General Services Administration.
GABEL. An excise; a tax on movables; a rent,
custom, or service. Co.Litt. 142a, 213.
A tax, impost, or excise duty, especially in continental
Europe; formerly, in France, specifically the tax on salt,
but also applied to taxes on other industrial products.
"The gabels of Naples are very high on oil, wine, tobacco
* * s ." Cent. Dict.
GAGER DEL LEY. Wager of law (q. v.).
—Land Gabel. See Land Gabel.
GABELLA. The Law Latin form of "gabel,"
(q. v.).
Also, in . Teutonic and early English history, the peasantry constituting a village or hamlet; the holdings of such
a group of freemen and serfs, or of either. The original significance of the word seems to be in its indication of a small rent-paying community, the rents being
rendered in kind or in labor. Cent. Dict. "So that GabeIta
meant all the member of a family having an interest in
a certain holding, and sometimes meant the holding itself."
W. K. Sullivan.
GABLATORES. Persons who paid gabel, rent, or
tribute. Domesday; Cowell.
GABLUM. A rent; a tax. Domesday; Du Cange.
The gable-end of a house. Cowell.
GABULUS DENARIORUM. Rent paid in money.
Seld.Tit.Hon. 321.
GAIN. Profits; winnings; increment of value.
Gray v. Darlington, 15 Wall. 65, 21 L.Ed. 45; Thorn
v. De Breteuil, 86 App.Div. 405, 83 N.Y.S. 849.
Difference between receipts and expenditures; pecuniary gain. Stanton v. Zercher, 101 Wash. 383,
172 P. 559, 562; Rooney v. City of Omaha, 105 Neb.
447, 181 N.W. 143, 145. Difference between cost
and sale price. Weil v. State, 237 Ala. 293, 186
So. 467, 469.
"Gain derived from capital," is a gain, profit, or something of exchangeable value proceeding from the property,
severed from the capital however invested, and received or
drawn by claimant for his separate use, benefit, and disposal. Commissioner of Internal Revenue v. Simmons Gin
Co., C.C.A.10, 43 F.2d 327, 328.
GAINAGE. The gain or profit of tilled or planted
land, raised by cultivating it; and the draught,
plow, and furniture for carrying on the work of
tillage by the baser kind of sokemen or villeins.
Bract. 1.
c. 9.
GADSDEN PURCHASE. A term commonly applied to the territory acquired by the United States
from Mexico by treaty of December 30, 1853,
known as the Gadsden Treaty.
GAINERY. Tillage, or the profit arising from it,
or from the beasts employed therein.
GAFFOLDGILD. The payment of custom or tribute. Scott.
GAFFOLDLAND. Property subject to the gaffoldgild, or liable to be taxed. Scott.
GAFOL. The same word as "gabel" or "gavel."
Rent; tax; interest of money.
GAGE, v. In old English law, to pawn or pledge;
to give as security for a payment or performance;
to wage or wager.
GAGE, n.
In old English law, a pawn or pledge; something deposited as security for the performance
of some act or the payment of money, and to
be forfeited on failure or non-performance. Glanv.
lib. 10, c. 6; Britt. c. 27.
A mortgage is a dead-gage or pledge; for, whatsoever profit it yields, it redeems not itself, unless
the whole amount secured is paid at the appointed
time. Cowell.
In French law, the contract of pledge or pawn;
also the article pawned.
GAINFUL. Profitable, advantageous, or lucrative.
Smith v. Mutual Life Ins. Co. of New York, La.
App., 165 So. 498, 500.
GAINFUL OCCUPATION. Within disability
clause of policy, term means ordinary employment
of particular insured, or such other employment,
if any, as insured may fairly be expected to follow. Mutual Life Ins. Co. of New York v. Barron,
198 Ga. 1, 30 S.E.2d 879, 882.
GAINOR. In old English law, a sokeman; one
who occupied or cultivated arable land. Old Nat.
Brev. fol. 12.
GAIUS, INSTITUTES OF. See Institutes.
GAJUM. A thick wood. Spelman.
GALE. The payment of a rent, tax, duty, or annuity.
A gale is the right to open and work a mine.
within the Hundred of St. Briavel's, or a stone
quarry within the open lands of the Forest of
Dean.
The right is a license or interest in the nature of real
estate, conditional on the due payment of rent and observ-
807
GALEA
ance of the obligations imposed on the galee. It follows
the ordinary rules as to the devolution and conveyance of
real estate. The gale" pays the crown a rent known as a
"galeage rent," "royalty," or some similar name, proportionate to the quantity of minerals got from the mine or
quarry. Sweet.
GALEA. In old records, a piratical vessel; a galley.
GALENES. In old Scotch law, amends or compensation for slaughter. Bell.
GALLI-HALFPENCE. A kind of coin which, with
suskins and doitkins, was forbidden by St. 3 Hen.
V. c. 1.
GALLIVOLATIUM. A cock-shoot, or cock-glade.
GALLON. A liquid measure containing 231 cubic
inches, or four quarts; the standard gallon of the
United States. State v. Standard Oil Co. of Louisiana, 188 La. 978, 178 So. 601, 607. The imperial
gallon contains about 277, and the ale gallon 282,
cubic inches. Hollender v. Magone, C.C.N.Y., 38
F. 914; Nichols v. Beard, C.C.Mass., 15 F. 437.
GALLOWS. A scaffold; a beam laid over either
one or two posts, from which malefactors are
hanged.
GAMACTA. In old European law, a stroke or
blow. Spelman.
GAMALIS. A child born in lawful wedlock; also
one born to betrothed but unmarried parents.
Spelman.
GAMBLING DEVICE. Such device, apparatus,
and the like, as is used and employed for gambling,
in the sense that in using it, money or the like is
staked, wagered, won, or lost as a direct result of
its employment or operation. Commonwealth v.
Mihalow, 142 Pa.Super. 433, 16 A.2d 656, 659. A
machine, implement, or contrivance of any kind
for the playing of an unlawful game of chance or
hazard. In re Lee Tong, D.C.Or., 18 F. 257; State
v, McTeer, 129 Tenn. 535, 167 S.W. 121, 122.
GAMBLING POLICY. In life insurance, one issued to a person, as beneficiary, who has no pecuniary interest in the life insured. Otherwise
called a "wager policy." Gambs v. Covenant Mut.
L. Ins. Co., 50 Mo. 47.
GAME. Wild birds and beasts. The word includes all game birds, game fowl, and game animals. State ex rel. Sofeico v. Heffernan, 41 N.M.
219, 67 P.2d 240, 246.
Birds and beasts of a wild nature, obtained by fowling
and hunting. Bacon, Abr. Coolidge v. Choate, 11 Metc.,
Mass., 79. The term is said to include (in England) hares,
pheasants, partridges, grouse, heath, or moor game, black
game, and bustards. Brown. 1 & 2 Wm. IV. c. 32. Graves
v. Dunlap, 87 Wash. 648, 152 P. 532, 533, L.R.A.1916C, 338,
Ann.Cas.1917B, 944.
A sport, pastime or contest. Lasseter v. O'Neill,
162 Ga. 826, 135 S.E. 78, 80, 49 A.L.R. 1076; Everhart v. People, 54 Colo. 272, 130 P. 1076, 1077. A
contrivance which has for its object to furnish
sport, recreation, or amusement. Ex parte Williams, 127 Cal.App. 424, 16 P.2d 172, 173. See Gaming.
GAME-KEEPER. One who has the care of keeping and preserving the game on an estate, being
appointed thereto by a lord of a manor.
GAMBLE. To play, or game, for money or other
stake; hence to stake money or other thing of
value on an uncertain event. It involves, not only
chance, but a hope of gaining something beyond
the amount played. State v. Mint Vending Machine No. 195084, 85 N.H. 22, 154 A. 224, 226.
The word "gamble" is perhaps the most apt and substantial to convey the idea of unlawful play that our language affords. It is inclusive of hazarding and betting as
well as playing. Bennett v. State, 2 Yerg., Tenn., 474.
Allen v. Commonwealth, 178 Ky. 250, 198 S.W. 896, 897.
It is not necessary that the player shall hazard what he
plays, but it is equally "gambling" if he may win by
chance more than the value expended by him. Nelson v.
State, 37 Okl.Cr. 90, 256 P. 939, 940; City of Moberly v.
Deskin, 169 Mo.App. 672, 155 S.W. 842, 843.
To constitute "gambling," winner must either pay consideration for his chance to win, or without paying anything in advance stand chance to lose or win. R. J. Williams Furniture Co. v. McComb Chamber of Commerce, 147
Miss. 649, 112 So. 579, 580, 57 A.L.R. 421; Almy Mfg. Co.
v. City of Chicago, 202 Ill.App. 240.
Commercialized gambling is such gambling as is a source
of sure and steady profit. State v. Gardner, 151 La. 874, 92
So. 368, 371.
A common gambler is one who furnishes facilities for
gamblin g , or keeps or exhibits a gambling table, establishment, device, or apparatus. People v. Sponsler, 1 Dak. 291,
46 N.W. 459, citing cases.
GAMBLER. One who follows or practices games
of chance or skill, with the expectation and purpose of thereby winning money or other property.
Buckley v. O'Niel, 113 Mass. 193, 18 Am.Rep. 466;
Brannon v. State, 16 Ala.App. 259, 76 So. 991, 993.
GAME LAWS. Laws passed for the preservation
of game, usually forbidding the killing of specified
game during certain seasons, Poulos v. State, 49
Ga.App. 20, 174 S.E. 253, or by certain described
means. As to English game-laws, see 2 Steph.
Comm. 82; 1 & 2 Wm. IV. c. 32.
GAME OF CHANCE. One in which result as to
success or failure depends less on skill and experience of player than on purely fortuitous or accidental circumstances incidental to game or manner
of playing it or device or apparatus with which it
is played, but not under control of player. People
v. Cohen, 160 Misc. 10, 289 N.Y.S. 397, 400.
GAMING. An agreement between two or more
persons to play together at a game of chance for a
stake or wager which is to become the property of
the winner, and to which all contribute. In re
Stewart, D.C.N.J., 21 F. 398; People v. Todd, 51
Hun, 446, 4 N.Y.S. 25; Carpenter v. Beal-McDonnell
& Co., D.C.Ark., 222 F. 453, 460.
"Gaming" and "gambling," in statutes, are similar in
meaning, and either one comprehends the idea that, by a
bet, by chance, by some exercise of skill, or by the trail,
spiring of some event unknown until it occurs, something
of value is, as the conclusion of premises agreed, to be
transferred from a loser to a winner. Bish.St.Crimes, §
858. Town of Eros v. Powell, 137 La. 342, 68 So. 632, 634;
Reinmiller v. State, 93 Fla. 462, 111 So. 633, 635.
808
GARBLER
GAOL DELIVERY. In criminal law, the delivery
or clearing of a gaol of the prisoners confined
therein, by trying them.
"Gaming" is properly the act or engagement of the players. If by-standers or other third persons put up a stake
or wager among themselves, to go to one or the other
according to the result of the game, this is more correctly
termed "betting."
GAMING CONTRACTS. See Wager.
In popular speech, the clearing of a ga&l by the
escape of the prisoners.
GAMING HOUSE. A building, place, or room kept
for use as a place to gamble, or to keep or exhibit
for the purpose of gaming, any bank, table, alley,
machine, wheel, or device, Davis v. State, Tex.Civ.
App., 165 S.W.2d 757, 758; as the business of the
occupants. 1 Russ.Crimes, 299; Rosc.Crim.Ev.
663; People v. Jackson, 3 Denio, N.Y., 101, 45 Am.
Dec. 449.
General Gaol Delivery. In English law, at the assizes
(q. v.) the judges sit by virtue of five several authorities,
one of which is the commission of "general gaol delivery."
This empowers them to try and deliverance make of every
prisoner who shall be in the gaol when the judges arrive
at the circuit town, whether an indictment has been preferred at any previous assize or not. 4 Bl.Comm. 270. This
is also a part of the title of some American criminal courts,
as, in Pennsylvania, the "court of oyer and terminer and
general jail delivery."
GAMING TABLE. Any table that may be used for
playing games of chance for money or property.
State v. Leaver, 171 Mo.App. 371, 157 S.W. 821, 822;
Everhart v. People, 54 Colo. 272, 130 P. 1076, 1080.
GAOL LIBERTIES, GAOL LIMITS. A district
around a gaol, defined by limits, within which
prisoners are allowed to go at large on giving security to return. It is considered a part of the
gaol. Singer v. Knott, 237 N.Y. 110, 142 N.E. 435,
436.
GANANCIAL PROPERTY. In Spanish law, a
species of community in property enjoyed by husband and wife, the property being divisible between them equally on a dissolution of the marriage. 1 Burge, Confl.Law, 418. Cartwright v.
Cartwright, 18 Tex. 634; Cutter v. Waddingham,
22 Mo. 254. See Community.
GANANCIALES. A Spanish term, used as either
a noun or adjective, and applied to property acquired during marriage. Discussed in Sanchez
v. Bowers, C.C.A.N.Y., 70 F.2d 715, 716. See
Ganancial Property, supra.
GANANCIAS. In Spanish law, gains sat profits.
GANG. Any company of persons who go about together or act in concert, in modern use mainly
for criminal purposes. State v. Gaynor, 119 N.J.L.
582, 197 A. 360, 362.
GANG–WEEK. The time when the bounds of the
parish are lustrated or gone over by the parish
officers,—rogation week. Enc.Lond.
GANGIATORI. Officers in ancient times whose
business it was to examine weights and measures.
Skene.
GANGSTER. A member of a gang of roughs,
hireling criminals, thieves, or the like. State v.
Gaynor, 119 N.J.L. 582, 197 A. 360, 362.
GANSER SYNDROME. A state in which questions are given nonsensical answers from which a
hidden relevancy may be inferred. This is observed in prisoners who wish to gain leniency by
simulating mental clouding.
GANTELOPE (pronounced "gauntlett.") A military punishment, in which the criminal running
between the ranks receives a lash from each man.
Enc.Lond. This was called "running the gauntlett.
PP
GAOL. A prison for temporary confinement; a
jail; a place for the confinement of offenders
against the law.
As distinguished from "prison," it is said to be a place
for temporary or provisional confinement, or for the punishment of the lighter offenses and misdemeanors. See,
also, Jail.
GAOLER. A variant of "jailer" (q. v.).
GARAGE. A place in which motor vehicles are
stored and cared for. Legum v. Carlin, 168 Md.
191, 177 A. 287, 290, 99 A.L.R. 536.
GARANDIA, or GARANTIA. A warranty. Spelman.
GARANTIE. In French law, this word corresponds to warranty or covenants for title in English law. In the case of a sale this garantie extends to two things: (1) Peaceful possession of
the thing sold; and (2) absence of undisclosed defects, (defauts caches.) Brown.
GARATHINX. In old Lombardic law, a gift; a
free or absolute gift; a gift of the whole of a
thing. Spelman.
GARAUNTOR. L. Fr. In old English law, a
warrantor of land; a vouchee; one bound by a
warranty to defend the title and seisin of his
alienee, or, on default thereof, and on eviction
of the tenant, to give him other lands of equal value. Britt. c. 75.
GARBA. In old English law, a bundle or sheaf.
Blada in garbis, corn or grain in sheaves. Reg.
Orig. 96; Bract. fol. 209.
GARBA SAGITTARUM. A sheaf of arrows, containing twenty-four. Otherwise called "schaffa
sagittarum." Skene.
GARBALES DECIIVUE. In Scotch law, tithes of
corn, (grain.) Bell.
GARBLE. In English statutes, to sort or cull out
the good from the bad in spices, drugs, etc. Cowell.
GARBLER OF SPICES. An ancient officer in the
city of London, who might enter into any shop,
warehouse, etc., to view and search drugs and
spices, and garble and make clean the same, or
see that it be done. Mozley & Whiteley.
809
GARCIO
GARCIO STOLIE. "Groom of the stole" (q. v.).
GARCIONES. Servants who follow a camp.
Wals. 242.
GARD, or GARDE. L. Fr. Wardship; care;
custody; also the ward of a city.
GARDEIN. A keeper; a guardian.
GARDEN. A small piece of land, appropriated
to the cultivation of herbs, fruits, flowers, or vegetables. People v. Greenburgh, 57 N.Y. 550; Ferry
v. Livingston, 115 U.S. 542, 6 S.Ct. 175, 29 L.Ed.
489; Hubel v. McAdon, 190 Iowa 677, 180 N.W.
994, 995.
GARDEN SEEDS. Seeds for kitchen gardens.
Ross & Co. v. U. S., 9 Ct.Cust.App. 235.
GARDEN TOOLS. Instruments or devices movable in character and operated by hand, or possibly
by other motive power in the performance of work
in the garden or on the farm. Murphy v. Continental Ins. Co., 178 Iowa 375, 157 N.W. 855, 857,
L.R.A.1917B, 934.
GARDIA. L. Fr. Custody; wardship.
GARDIANUS. In old English law, a guardian,
defender, or protector. In feudal law, gardio.
Spelman.
A warden. Gardianus ecclesioe, a churchwarden.
Gardianus quinque portuum, warden of the Cinque Ports. Spelman.
GARDINUM. In old English law, a garden. Reg.
Orig. lb, 2.
GARENE. L. Fr. A warren; a privileged place
for keeping animals.
GARNESTURA. In old English law, victuals,
arms, and other implements of war, necessary for
the defense of a town or castle. Mat.Par. 1250.
GARNISH, n. In English law, money paid by a
prisoner to his fellow-prisoners on his entrance
into prison.
GARNISH, v. To warn or summon.
To issue process of garnishment against a person.
GARNISHEE. One garnished; a person against
whom process of garnishment is issued; one who
has money or property in his possession belonging to a defendant, or who owes the defendant a
debt, which money, property, or debt is attached in
his hands, with notice to him not to deliver or pay
it over until the result of the suit be ascertained.
Welsh v. Blackwell, 14 N.J.L. 348; Smith v. Miln,
22 Fed.Cas. 606; Edwards v. Stein, 94 N.J.Eq. 251,
119 A. 504, 505.
GARNISHMENT. A warning to a person in whose
hands the effects of another are attached, not to
pay the money or deliver the property of the defendant in his hands to him, but to appear and
answer the plaintiff's suit. Drake, Attachm. § 451;
National Bank of Wilmington v. Furtick, 2 Marv.,
Del., 35, 42 A. 479, 44 L.R.A. 115, 69 Am.St.Rep. 99;
Jeary v. American Exch. Bank, 2 Neb. (Unof.) 657,
89 N.W. 772.
A statutory proceeding whereby person's property, money, or credits in possession or under
control of, or owing by, another are applied to
payment of former's debt to third person by proper statutory process against debtor and garnishee.
Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042.
It is an incident to or an auxiliary of judgment rendered
in principal action, and is resorted to as a means of obtaining satisfaction of judgment by reaching credits or property of judgment debtor in hands of garnishee. Graber v.
Ft. Dearborn Casualty Underwriters of Chicago, Ill., Mo.
App., 35 S.W.2d 933, 934. Or by reaching goods, moneys,
or effects of debtor in possession of another, or by applying
on a judgment, debts or credits due to debtor by another.
Nacy v. Le Page, 341 Mo. 1039, 111 S.W.2d 25, 114
A. L. R. 259.
Also a warning to any one for his appearance,
in a cause in which he is not a party, for the information of the court and explaining a cause.
Cowell; Crawford State Bank of Crawford v.
Murphy, 142 Neb. 795, 7 N.W.2d 762, 763.
Equitable garnishment, is sometimes applied to the statutory proceedings authorized in some states, upon the
return of an execution unsatisfied, whereby an action something like a bill of discovery may be maintained against the
judgment debtor and any third person, to compel the disclosure of any money or property or chose in action belonging to the debtor or held in trust for him by such third
person, and to procure satisfaction of the judgment out of
such property. Geist v. St. Louis, 156 Mo. 643, 57 S.W. 766,
79 Am.St.Rep. 545. See St. Louis v. O'Neil Limber Co., 114
Mo. 74, 21 S. W. 484.
Execution. See Execution.
GARNISTURA. In old English law, garniture;
whatever is necessary for the fortification of a
city or camp, or for the ornament of a thing. 8
Rymer, 328; Du Cange; Cowell; Blount.
GARRISON. The permanent home of the army
in time of peace, where soldiers are given proper
training with a view of having them prepared for
the intelligent performance of duty in event of
conflict. Hines v. Mikell, C.C.A.S.C., 259 F. 28, 31.
GARROTING. A method of inflicting the death
penalty on convicted criminals practiced in Spain,
Portugal, and some Spanish-American countries,
consisting in strangulation by means of an iron
collar which is mechanically tightened about the
neck of the sufferer, sometimes with the variation
that a sharpened screw is made to advance from
the back of the apparatus and pierce the base of
the brain. Also, popularly, any form of strangling resorted to to overcome resistance or induce
unconsciousness, especially as a concomitant to
highway robbery.
GARSUMME. In old English law, an amerciament or fine. Cowell.
GARTER. A string or ribbon by which the stocking is held upon the leg.
The mark of the highest order of English
knighthood, ranking next after the nobility.
This military order of knighthood is said to have been
first instituted by Richard I., at the siege of Acre, where
he caused twenty-six knights who firmly stood by him to
810
GAVELLER
which ejectment will lie; 2 Stra. 1084, 1 Term 137; and
are entirely distinct from right of common. The right is
sometimes connected with the duty of repairing the gates
of the pasture; and perhaps the name comes from this.
wear thongs of blue leather about their legs. It is also
said to have been perfected by Edward III. and to have
received some alterations, which were afterwards laid
aside, from Edward VI. The badge of the order is the
i mage of St. George, called the "George," and the motto is
"Honi soit qui mal y pense." Wharton.
This order called "Knights of the Garter" is otherwise
called "Knights of the Order of St. George." They form
the highest order of knights.
GAUDIES. A term used in the English universities to denote double commons.
GAUGE. The measure of width of a railway, fixed, with some exceptions, at 4 feet 8 1/2 inches in
Great Britain and America, and 5 feet 3 inches in
Ireland.
GARTH. In English law, a yard; a little close
or homestead in the north of England. Cowell;
Blount.
GAUGEATOR. A gauger. Lowell.
A dam or wear in a river, for the catching of
fish.
GARYTOUR. In old Scotch law, warder. 1 Pitc.
Crim. Tr. pt. 1, p. 8.
GAS. An aeriform fluid. Lamar v. Iowa State
Traveling Men's Ass'n, 216 Iowa 371, 249 N.W. 149,
92 A.L.R. 159. That gas used for illuminating
purposes and for fuel. Birss v. Order of United
Commercial Travelers of America, 109 Neb. 226,
190 N.W. 486, 487.
Casing-head gas is gas which flows from oil wells, coming
between casing and tubing. Humble Oil & Refining Co. v.
Poe, Tex.Com.App., 29 S.W.2d 1019, 1020.
Natural gas is the gas obtained from wells in coal and
oil regions, and used for lighting and heating. Dry natural
gas is natural gas which does not contain an appreciable
amount of readily condensible gasoline; it is usually not
intimately associated with petroleum. Wet natural gas is
natural gas from which a gasoline can be extracted in sufficient quantities to warrant the installation of a plant, or
natural gas which contains readily condensible gasoline.
Mussellem v. Magnolia Petroleum Co., 107 Okl. 183, 231 P.
526, 530.
It is a colorless inflammable fluid, the first and highest
distillant of crude petroleum. Being the most volatile component of petroleum, it readily separates from it, and, in
the process of distillation, is the oil drawn off at the lowest
temperature. Locke v. Russell, 75 W.Va. 602, 84 S.E. 948,
949; Hammett Oil Co. v. Gypsy Oil Co., 95 Oki. 235, 218 P.
501, 504, 34 A.L.R. 275.
GASOLINE. A volatile, inflammable hydrocarbon mixture used as a fuel, especially for internal combustion engines. Coleman v. United States,
Ct.C1., 37 F.Supp. 273, 277.
GAST. L. Fr. Waste. See the letter "G," supra.
GASTALDUS. A temporary governor of the
country. Blount. A bailiff or steward. Spelman.
GASTEL. L. Fr. Wastel; wastel bread; the finest sort of wheat bread. Britt. c. 30: Kelham.
GASTINE. L. Fr. Waste or uncultivated ground.
Britt. c. 57.
GATE (Sax. geat), at the end of names of places,
signifies way or path. Cunningham, Law Dict.
In the words beast-gate and cattle-gate, it
means a right of pasture.
In modern railroad practice, movable barriers
which close entrance through which public is permitted to enter upon, pass over, and leave property of railway company inclosed within its right
of way fences. Jeffery v. Kewaunee, G. B. & W.
Ry. Co., 189 Wis. 207, 207 N.W. 283, 284.
These rights are local to Suffolk and Yorkshire respectively; they are considered as corporeal hereditaments, for
GAUGER. A surveying officer under the customs, excise, and internal revenue laws, appointed to examine all tuns, pipes, hogsheads, barrels
and tierces of wine, oil, and other liquids, and to
give them a mark of allowance, as containing lawful measure. There are also private gaugers in
large seaport towns, who are licensed by government to perform the same duties. Rapal. & L.
GAUGETUM. A gauge or gauging; a measure
of the contents of any vessel.
GAVEL. In English law, custom; tribute; toll;
yearly rent; payment of revenue; of which there
were anciently several sorts; as gavel-corn, gavelmalt, oat-gavel, gavel-fodder, etc. Termes de la
Ley; Cowell; Co.Litt. 142a.
GAVEL—MAN. A tenant liable to the payment of
gavel or tribute. Somn. Gavelkind, 23.
GAVELBRED. Rent reserved in bread, corn, or
provision; rent payable in kind. Cowell.
GAVELCESTER. A certain measure of rent-ale.
Cowell.
GAVELET. An obsolete writ. An ancient and
special kind of cessavit, used in Kent and London
for the recovery of rent. The statute of gavelet
is 10 Edw. II. 2 Reeve, Eng.Law, c. 12, p. 298.
See Emig v. Cunningham, 62 Md. 460.
GAVELGELD. That which yields annual profit
or toll. The tribute or toll itself. Cowell; Du
Cange.
GAVELHERTE. A service of plowing performed
by a customary tenant. Cowell; Du Cange.
GAVELING MEN. Tenants who paid a reserved
rent, besides some customary duties to be done
by them. Cowell.
GAVELKIND. A species of socage tenure common in Kent, in England, where the lands descend
to all the sons, or heirs of the nearest degree, together; may be disposed of by will; do not escheat for felony; may be aliened by the heir at
the age of fifteen; and dower and curtesy is given of half the land. Stim.Law Gloss.
GAVELLA. See Gabella.
GAVELLER. An officer of the English crown
having the general management of the mines, pits,
and quarries in the Forest of Dean and Hundred of
St. Briavel's, subject, in some respects, to the con-
811
GAVELMED
trol of the commissioners of woods and forests.
He grants gales to free miners in their proper order, accepts surrenders of gales, and keeps the
registers required by the acts. There is a deputygaveller, who appears to exercise most of the ga y
-elr'sfunctio.Swe
GAVELMED. A customary service of mowing
meadow-land or cutting grass (consuetudo falcandi). Blount.
GAVELREP. Bedreap or bidreap; the duty of
reaping at the bid or command of the lord. Somn.
Gavelkind, 19, 21; Cowell.
GELDING. A horse that has been castrated, and
which is thus distinguished from the horse in his
natural and unaltered condition. A "ridgling" (a
half-castrated horse) is not a gelding, but a horse,
within the denomination of animals in the statutes. Brisco v. State, 4 Tex.App. 219, 30 Am.Rep.
162.
GELT. As a verb, an alternative form of the
past tense of "geld," commonly "gelded." See
Gelding.
As a noun, used incorrectly for geld (q. v.).
Webster, New Int. Dict.
GAVELWERK. A customary service, either
manuopera, by the person of the tenant, or carropera, by his carts or carriages. Blount; Somn.
Gavelkind, 24; Du Cange.
GEMMA. Lat. In the civil law, a gem; a precious stone. Gems were distinguished by their
transparency; such as emeralds, chrysolites, amethysts. Dig. 34, 2, 19, 17.
GAZETTE. The official publication of the English government, also called the "London Gazette,"
GEMOT. In Saxon law, a meeting or moot; a
convention; a public assemblage.
It is evidence of acts of state, and of everything done by
the king in his political capacity. Orders of adjudication in
bankruptcy are required to be published therein; and the
production of a copy of the "Gazette," containing a copy
of the order of adjudication, is evidence of the fact. Mozley & Whitley.
These were of several sorts, such as the witena-gemot, or
meeting of the wise men; the folo-gemot, or general assembly of the people; the shire-gemot, or county court; the
burg-gemot, or borough court; the hundred-gemot, or hundred court; the hali-gemot, or court-baron; the hal-mote,
a convention of citizens in their public hall; the holy-mote,
or holy court; the swein-gemote, or forest court; the
ward-mote, or ward court. Wharton; Cunningham.
GDN. Equivalent to guardian. National Surety
Co. v. McNeill's Guardian, 251 Ky. 509, 65 S.W.2d
721.
GEBOCCED, An Anglo-Saxon term, meaning
"conveyed."
GEBOCIAN. In Saxon law, to convey; to transfer boc land, (book-land or land held by charter.)
The grantor was said to gebocian the alienee.
See 1 Reeve, Eng.Law, 10.
GENEALOGY. The summary history or table of
a family, showing how the persons there named
are connected together.
GENEARCH. The head of a family.
GENEATH. In Saxon law, a villein, or agricultural tenant, (villanus villicus;) a hind or farmer, (firmarius rusticus.) Spelman.
GEBRAUCHSMUSTER. Issued in accordance
with law of Germany, it is a patent. Permutit
Co. v. Graver Corporation, D.C.Ill., 37 F.2d 385,
390.
GENER. Lat. In the civil law, a son-in-law; a
daughter's husband. ( Filice vir.) Dig. 38, 10, 4,
6.
GEBUR (Sax.). A boor.
GENERAL. From Latin word genus. It relates
to the whole kind, class, or order. Leuthold v.
Brandjord, 100 Mont 96, 47 P.2d 41, 45. Pertaining
to or designating the genus or class, as distinguished from that which characterizes the species
or individual; universal, not particularized, as
opposed to special; principal or central, as opposed to local; open or available to all, as opposed
to select; obtaining commonly, or recognized universally, as opposed to particular; universal or unbounded, as opposed to limited; comprehending
the whole or directed to the whole, as distinguished from anything applying to or designed for a
portion only. Board of Sup'rs of Attala County
v. Illinois Cent. R. Co., 186 Miss. 294, 190 So. 241.
Extensive or common to many. Record v. Ellis,
97 Kan. 754, 156 P. 712, 713, L.R.A.1916E, 654, Ann.
Cas.1917C, 822; McNeill v. McNeill, 166 Iowa,
680. 148 N.W. 643. 651.
As a noun, the word is the title of a principal
officer in the army, usually one who commands a
whole army, division, corps, or brigade. In the
United States army, the rank of "general" is one
of the highest, next to the commander in chief,
and is only occasionally created. The officers next
His services varied in different places--to work for his
lord two or more days a week; to pay gafols in money,
barley, etc.; to pay hearth money, etc. He was a tenant
with a house and a yard land or virgate or two oxen.
Maitl. Domesday and Beyond 37.
GEBURSCRIPT. In old English law, neighborhood or adjoining district. Cowell.
GEBURUS. In old English law, a country neighbor; an inhabitant of the same geburscript, or
village. Cowell.
GELD. In Saxon law, money or tribute. A
mulct, compensation, value; price.
Angeld was the single value of a thing; twigeld, double
value, etc. So, weregeld was the value of a man slain;
or/geld, that of a beast. Brown. A land tax of so much
per hide or carucate. Maitl. Domesday Book 120. The
compensation for a crime.
GELDABILIS. In old English law, taxable;
geldable.
GELDABLE. Liable to pay geld; liable to be taxed. Kelham.
812
GENERAL EXCEPTION
in rank are lieutenant general, major general, and
brigadier general.
As to general "Acceptance," "Administration
of Estates," "Agent," "Appearance," "Assignment," "Average," "Benefit," "Challenge," "Character," "Charge," "Covenant," "Creditor," "Custom," "Damages," "Demurrer," "Denial," "Deposit," "Device," "Election," "Finding," "Franchise,"
"Fund," "Gaol Delivery," "Guardian," "Guaranty,"
"Imparlance," "Insurance," "Intent," "Issue,"
"Legacy," "Letter of Credit," "Malice," "Meeting,"
"Monition," "Mortgage," "Occupant," "Orders,"
"Owner," "Partnership," "Power," "Property,"
"Replication," "Restraint of Trade," "Retainer,"
"Return Day," "Rules," "Sessions," "Ship," "Statute," "Tail," "Tenancy," "Term," "Traverse," "Usage," "Verdict," "Warrant," and "Warranty," see
those titles.
GENERAL AGENCY BUSINESS. One engaged
in such general agency business is one not engaged as agent for single firm or person, but holding
himself out to public as being engaged in business
of being agent. Corner v. State Tax Commission
of New Mexico, 41 N.M. 403, 69 P.2d 936, 939.
GENERAL ASSEMBLY. State Senate and House
of Representatives. Pirtle v. Brown, C.C.A.Tenn.,
118 F.2d 218, 220.
The policy making body of the United Nations.
It is composed of from one to five delegates from
each member nation, although each member nation has but one vote.
The highest "judicatory" of the Presbyterian
church, representing in one body all of the particular churches of the denomination. Trustees of
Pencader Presbyterian Church in Pencader Hundred v. Gibson, 26 Del.Ch. 375, 22 A.2d 782, 788.
GENERAL ASSIGNMENT FOR BENEFIT OF
CREDITORS. A transfer of legal and equitable
title to all debtor's property to trustee, with authority to liquidate debtor's affairs and distribute
proceeds equitably to creditors. Central Fibre
Products Co. v. Hardin, C.C.A.Tex., 82 F.2d 692,
694.
GENERAL ASSUMPSIT. An action of assumpsit
brought upon the promise or contract implied by
law in certain cases. Holcomb v. Kentucky Union
Co., 262 Ky. 192, 90 S.W.2d 25, 28.
GENERAL AVERAGE CONTRIBUTION. A contribution by all parties in a sea adventure to make
good loss sustained by one of their number on account of sacrifices voluntarily made of part of
ship or cargo to save residue and lives of those on
board from an impending peril or for extraordinary expenses necessarily incurred by one or more
of the parties for the general benefit of all the interests embarked in the enterprise. Pacific
Freighters Co. v. St. Paul Fire & Marine Ins. Co.,
C.C.A.Cal., 109 F.2d 310, 312.
GENERAL AVERAGE STATEMENT. Statement of account and admission on shipowner's
part as to amount dm cargo owner. Kohler &
Chase v. United American Lines, D.C.N.Y., 60 F.
2d 530, 533.
GENERAL BEQUEST. One not segregated or
withdrawn from estate under terms of will but to
be paid in money or property as latter directs.
In re McDougald's Estate, 149 Fla. 468, 6 So.2d
274.
GENERAL BOARD OF THE NAVY. A general
advisory board to the Secretary of the Navy as
to the preparation, maintenance and distribution
of the fleet, plans of campaign, number and types
of vessels, etc., number and ranks of officers and
number and ratings of enlisted men, etc.
GENERAL BUILDING SCHEME. One under
which owner of large tract of land divides it into
building lots, to be sold to different persons for
separate occupancy by deeds which contain uniform covenants restricting the use which the several grantees may make of their premises. Besch
v. Hyman, 221 App.Div. 455, 223 N.Y.S. 231, 233.
GENERAL CIRCULATION. That of a general
newspaper only, as distinguished from one of a
special or limited character; 1 Lack.Leg.N., Pa.,
114. It is not determined by number of subscribers but by the diversity of subscribers. Eisenberg
v. Wabash, 355 Ill. 495, 189 N.E. 301, 302.
GENERAL COUNCIL. (1) A council consisting
of members of the Roman Catholic Church from
most parts of the world, but not from every part,
as an ecumenical council. (2) One of the names
of the English parliament.
GENERAL COURT. The name given to the legislature of Massachusetts and of New Hampshire,
in colonial times, and subsequently by their constitutions; so called because the colonial legislature of Massachusetts grew out of the general
court or meeting of the Massachusetts Company.
Cent.Dict. See Citizens' Sa y . & Loan Ass'n v.
Topeka, 20 Wall. 666, 22 L.Ed. 455.
GENERAL CREDIT. The character of a witness
as one generally worthy of credit. A distinction
is sometimes insisted upon between this and "particular credit," which may be affected by proof
of particular facts relating to the particular action. See Bemis v. Kyle, 5 Abb.Prac.,N.S., N.Y.,
233.
GENERAL ESTATE. Customarily, the entire estate held by a person in his individual capacity.
In re Shipley's Estate, 337 Pa. 580, 12 A.2d 347,
348.
In will requiring estate taxes to be paid out of general
estate, "general estate" referred to "residuary estate"
remaining after gift of personalty and use of realty to
testator's wife, and hence gift to wife was exempt from
contribution to estate taxes and interest thereon. In re
Chambers' Estate, Sur., 54 N.Y.S.2d 88, 90.
GENERAL EXCEPTION. General exception is
an objection to a pleading, or any part thereof,
for want of substance, while a special exception
is an objection to the form in which a cause of
action is stated. Cochran v. People's Nat. Bank,
Tex.Civ.App., 271 S.W. 433, 434.
813
GENERAL EXECUTION
GENERAL EXECUTION. A writ commanding
an officer to satisfy a judgment out of any personal property of the defendant. If authorizing
him to levy only on certain specified property, the
writ is sometimes called a "special" execution.
Pracht v. Pister, 30 Kan. 568, 1 P. 638.
GENERAL EXECUTOR.
One whose power is
not limited either territorially or as to the duration or subject of his trust. One who is to have
charge of the whole estate, wherever found, and
administer it to a final settlement.
GENERAL FEE CONDITIONAL. A grant to a
person and heirs of his body. Blume v. Pearcy,
204 S.C. 409, 29 S.E.2d 673, 674.
GENERAL FIELD.
Several distinct lots or pieces of land inclosed and fenced in as one common
field. Mansfield v. Hawkes, 14 Mass. 440.
GENERAL
IMPROVEMENT. Where primary
purpose and effect of improvement is to benefit
public generally, though it may incidentally benefit property owners in particular locality. Hinman v. Temple, 133 Neb. 268, 274 N.W. 605, 608,
111 A.L.R. 1217.
GENERAL
INCLOSURE ACT. The statute 41
Geo. III, c. 109, which consolidates a number of
regulations as to the inclosure of common fields
and waste lands.
GENERAL
INSTRUCTION. An explanation of
legal terms specifically provided for by statute.
Humble Oil & Refining Co. v. Owings, Tex.Civ.
App., 128 S.W.2d 67, 76.
GENERAL INTEREST.
In regard to admissibility of hearsay evidence, a distinction has been taken between "public" and "general" interest, the
term "public" being strictly applied to that which
concerns every member of the state, and the term
"general" being confined to a lesser, though still
a considerable, portion of the community. Tayl.
Ev. § 609.
GENERAL JURISDICTION. Such as extends to
all controversies that may be brought before a
court within the legal bounds of rights and remedies; as opposed to special or limited jurisdiction, which covers only a particular class of cases,
or cases where the amount in controversy is below a prescribed sum, or which is subject to specific exceptions. The terms "general" and "special," applied to jurisdiction, indicate the difference between a legal authority extending to the
whole of a particular subject and one limited to
a part; and, when applied to the terms of court,
the occasion upon which these powers can be respectively exercised. Gracie v. Freeland, 1 N.Y.
232.
GENERAL LAND OFFICE. Formerly an office
of the United States government, being a division
of the Department of the Interior, having charge
of all executive action relating to the public lands,
including their survey, sale or other disposition,
and patenting; originally constituted by Act of
Congress in 1812. The General Land Office and
the U. S. Grazing Service were consolidated into
the Bureau of Land Management under the Department of the Interior by 1946 Reorganization
Plan No. 3, § 403. See notes to 43 U.S.C.A. § 1.
GENERAL LAW. A law that affects the community at large. A general law as contradistinguished from one that is special or local, is a law
that embraces a class of subjects . or places, and
does not omit any subject or place naturally belonging to such class. Van Riper v. Parsons, 40
N.J.Law, 1; Mathis v. Jones, 84 Ga. 804, 11 S.E.
1018; Brooks v. Hyde, 37 Cal. 376; Arms v. Ayer,
192 Ill. 601, 61 N.E. 851, 58 L.R.A. 277, 85 Am.St.
Rep. 357.
A law, framed in general terms, restricted to no locality,
and operating equally upon all of a group of objects, which,
having regard to the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves, is not a special
or local law, but a general law. Jones v. Power County, 27
Idaho, 656, 150 P. 35, 37; Scarbrough v. Wooten, 23 N.M.
616, 170 P. 743; Toombs v. Sharkey, 140 Miss. 676, 106 So.
273, 275; Van Riper v. Parsons, 40 N.J.L. 123, 29 Am. Rep.
210.
GENERAL LIEN. A general lien is a right to
detain a chattel, etc., until payment be made, not
only of any debt due in respect of the particular
chattel, but of any balance that may be due on
general account in the same line of business. A
general lien, being against the ordinary rule of
law, depends entirely upon contract, express or
implied, from the special usage of dealing between
the parties. Wharton. Crommelin v. Railroad
Co., 10 Bosw., N.Y., 80; McKenzie v. Nevius, 22 Me.
150, 38 Am.Dec. 291; Brooks v. Bryce, 21 Wend.,
N.Y., 16; 3 B. & P. 494.
GENERAL MANAGER. One having general direction and control of corporation's affairs, and
who may do everything which corporation could
do in transaction of its business. Continental Supply Co. v. Forrest E. Gilmore Co. of Texas, Tex.
Civ.App., 55 S.W.2d 622. A manager for all general purposes of the corporation. Phcenix Finance
Corporation v. Iowa-Wisconsin Bridge Co., 2 Terry
130, 16 A.2d 789, 793.
GENERAL POWER OF APPOINTMENT. One
exercisable in favor of any person the donee may
select. Johnstone v. Commissioner of Internal
Revenue, C.C.A.9, 76 F.2d 55, 57.
GENERAL TAXES. Those imposed by and paid
to state as a state which return taxpayer no special benefit other than the protection afforded him
and his property by government, and promotion
of schemes which have for their benefit the welfare of all. Pacific Gas & Electric Co. v. Sacramento Municipal Utility Dist., D.C.Cal., 17 F.Supp.
685, 686. A tax, imposed solely or primarily for
purpose of raising revenue and merely granting
person taxed right to conduct business or profession. American Can Co. v. City of Tampa, 152
Fla. 798, 14 So.2d 203, 210.
GENERAL WORDS. Such words of a descriptive
character as are used in conveyances in order to
convey, not only the specific property described,
814
GENTOO
but also all kinds of easements, privileges, and
appurtenances which may possibly belong to the
property conveyed.
Such words are in general unnecessary; but are properly
used when there are any easements or privileges reputed to
belong to the property not legally appurtenant to it.
Such words are rendered unnecessary by the English
conveyancing act of 1881, under which they are presumed to
be included.
See, as to the effect of such words in deeds, 4 M. & S.
423; in a will; 1 P.Wms. 302; in a lease; 2 Moo. 592; in
a release; 3 Mod. 277; i sn a covenant; 3 Moo. 703; in a
statute; 1 Bla.Com. 88; 2 Co. 46.
GENERALE. The usual commons in a religious
house, distinguished from pietantice, which on extraordinary occasions were allowed beyond the
commons. Cowell.
GENERALE DICTUM GENERALITER EST INTERPRETANDUM. A general expression is to be
interpreted generally. 8 Coke, 116a.
GENERALE NIHIL CERTUM IMPLICAT. A general expression implies nothing certain. 2 Coke,
34b. A general recital in a deed has not the effect
of an estoppel. Best, Ev. p. 408, § 370.
GENERALE TA NTUM VALET IN GENERALIBUS, QUANTUM SINGULARE IN SINGULIS.
What is general is of as much force among general things as what is particular is among things
particular. 11 Coke, 59b.
GENERALIA PRIECEDUNT, SPECIALIA SEQUUNTUR. Things general precede, things special follow. Reg.Brev.; Branch, Princ.
GENERALIA SPECIALIBUS NON DEROGANT.
Jenk.Cent. 120, cited L.R. 4 Exch. 226. General
words do not derogate from special.
GENERALIA SUNT PRZEPONENDA SINGULARIBUS. Branch, Princ. General things are
to precede particular things.
GENERATIO. The issue or offspring of a mothermonastery. Cowell.
GENERATION. May mean either a degree of
removal in computing descents, or a single succession of living beings in natural descent. McMillan
v. School Committee, 107 N.C. 609, 12 S.E. 330, 10
L.R.A. 823.
GENEROSA. Gentlewoman. Cowell; 2 Inst. 668.
GENEROSI FILIUS. The son of a gentleman.
Generally abbreviated "gen. fil."
GENEROSUS. Lat. Gentleman; a gentleman.
Spelman.
GENICULUM. A degree of consanguinity. Spelman.
GENOESE LOTTERY. Also known as the "numerical" lottery. As distinguished from the
"class" lottery (see the title Dutch Lottery), it is
a scheme by which, out of 90 consecutive numbers, five are to be selected or drawn by lot. The
players have fixed on certain numbers, wagering
that one, two, or more of them will be drawn
among the five, or that they will appear in a certain order. Fleming v. Bills, 3 Or. 286.
GENS. Lat. In Roman law, a tribe or clan; a
group of families, connected by common descent
and bearing the same name, being all free-born and
of free ancestors, and in possession of full civic
rights.
GENS DE JUSTICE. In French law, officers of a
court.
GENTES. Lat. People. Contra omnes gentes,
against all people. Bract. fol. 37b. Words used in
the clause of warranty in old deed.
GENTILES. In Roman law, the members of a
gens or common tribe.
GENERALIA VERBA SUNT GENERALITER INTELLIGENDA. General words are to be understood generally, or in a general sense. 3 Inst. 76;
Broom, Max. 647.
GENTLEMAN. Refers to a man of birth, but not
noble; a man raised above the vulgar by his character or past. Bramblett v. Trust Co. of Georgia,
182 Ga. 87, 185 S.E. 72, 76. In English law. A
person of superior birth.
GENERALIBUS SPECIALIA DEROGANT. Special things take from generals. Halk.Lat.Max.
51.
Under the denomination of "gentlemen" are comprised
all above yeoman; whereby noblemen are truly called
"gentlemen." Smith de Rep. Ang. lib. 1, cc. 20, 21.
A "gentleman" is defined to be one who, without any
title, bears a coat of arms, or whose ancestors have been
freemen; and, by the coat that a gentleman giveth, he is
known to be, or not to be, descended from those of his
name that lived many hundred years since. Jacob. See
Cresson v. Cresson, 6 Fed.Cas. 809.
GENERALIS CLAUSULA NON PORRIGITUR
AD EA QUJEANTEA SPECIALITER SUNT COM- •
PREHENSA. A general clause does not extend
to those things which are previously provided
for specially. 8 Coke, 154b. Therefore, where a
GENTLEMAN USHER. One who holds a post at
deed at the first contains special words, and aftercourt to usher others to the presence, etc.
wards concludes in general words, both words, as
well general as special, shall stand.
GENTLEWOMAN. The word is a relative one
without any legal significance. It refers to a woGENERALIS REGULA GENERALITER EST INman of the same rank or status as that of a "genTELLIGENDA. A general rule is to be understood
tleman." Bramblett v. Trust Co. of Georgia, 182
generally. 6 Coke, 65.
Ga. 87, 185 S.E. 72, 76. A woman of birth above
the common, or equal to that of a gentleman; an
GENERALS OF ORDERS. Chiefs of the several
addition of a woman's state or degree.
orders of monks, friars, and other religious societies.
GENTOO LAW. See Hindu Law.
815
GENUINE
GENUINE. As applied to notes, bonds, and other
written instruments, this term means that they
are truly what they purport to be, and that they
are not false, forged, fictitious, simulated, spurious, or counterfeit. Baldwin v. Van Deusen, 37
N.Y. 492; Smeltzer v. White, 92 U.S. 392, 23 L.Ed.
508; Krug v. Sinclaire, 57 Cal.App. 563, 207 P. 696,
697. A will that has been revoked by later instrument and not revived by republication is not "genuine," within Surrogate's Court Act, § 144. In re
Kiltz's Will, 125 Misc. 475, 211 N.Y.S. 450, 461.
GENUS. In the civil law, a general class or division, comprising several species. In toto jure
generi per speciem derogatur, et illud potissimum
habetur quod ad speciem directum est, throughout the law, the species takes from the genus, and
that is most particularly regarded which refers
to the species. Dig. 50, 17, 80.
A man's lineage, or direct descendants.
In logic, it is the first of the universal ideas,
and is when the idea is so common that it extends
to other ideas which are also universal; e. g., incorporeal hereditament is genus with respect
to a rent, which is species. Woolley, Introd. Log.
45; 1 Mill, Log. 133.
GEORGE-NOBLE.
6s. 8d.
An English gold coin, value
In old New York law, a court
messenger or constable. O'Callaghan, New Neth.
322.
GERECHTSBODE.
GEREFA. In Saxon law, greve, reve, or reeve;
a ministerial officer of high antiquity in England;
answering to the grave or graf (grafio) of the
early continental nations. The term was applied
to various grades of officers, from the scyre-gerefa,
shire-grefe, or shire-reve, who had charge of the
county, (and, whose title and office have been perpetuated in the modern "sheriff,") down to the
tungerefa, or town-reeve, and lower. Burrill.
GERENS. Bearing. Gerens datum, bearing date.
1 Ld. Raym. 336; Hob. 19.
GERMAN. Whole, full, or own, in respect to relationship or descent. Brothers-german, as opposed to half-brothers, are those who have both the
same father and mother. Cousins-german are
"first" cousins; that is, children of brothers or
sisters.
GERMANE. In close relationship, appropriate,
relative, pertinent. State ex rel. Riley v. District
Court of Second Judicial Dist. in and for Silver
Bow County, 103 Mont. 576, 64 P.2d 115, 119.
GERONTOCOMIUM. In the civil law, an institution or hospital for taking care of the old. Cod. 1,
3, 46, 1; Calvin.
GERRYMANDER.
A name given to the process
of dividing a state or other territory into the authorized civil or political divisions, but with such
a geographical arrangement as to accomplish a
sinister or unlawful purpose, as, for instance, to
secure a majority for a given political party in
districts where the result would be otherwise if
they were divided according to obvious natural
lines, or to arrange school districts so that children
of certain religions or nationalities shall be
brought within the district and those of a different
religion or nationality in another district. State
v. Whitford, 54 Wis. 150, 11 N.W. 424.
GERSUMARIUS. In old English law, finable;
liable to be amerced at the discretion of the lord
of a manor. Cowell.
GERSUME. In old English law, expense; reward;
compensation; wealth. It is also used for a fine
or compensation for an offense. 2 Mon.Angl. 973.
GEST. In Saxon law, a guest. A name given to
a stranger on the second night of his entertainment in another's house. Twanight gest.
GESTATION. The time during which a woman
carries a fetus in her womb, from conception to
birth. But, as used in all medical authorities, this
phrase does not mean the actual number of days
from conception to birth. Dazey v. Dazey, 50 Cal.
App.2d 15, 122 P.2d 308, 309.
GESTIO. In the civil law, behavior or conduct.
Management or transaction. Negotiorum gestio, the doing of another's business; an interference in the affairs of another in his absence, from
benevolence or friendship, and without authority.
Dig. 3, 5, 45; Id. 46, 3, 12, 4; 2 Kent, Comm. 616,
note.
GESTIO PRO 111EREDE. Behavior as heir.
This expression was used in the Roman law, and adopted
in the civil law and Scotch law, to denote conduct on the
part of a person appointed heir to a deceased person, or
otherwise entitled to succeed as heir, which indicates an
intention to enter upon the inheritance, and to hold himself
out as heir to creditors of the deceased ; as by receiving the
rents due to the deceased, or by taking possession of his
title-deeds, etc. Such acts will render the heir liable to the
debts of his ancestor. Mozley & Whitley.
GESTOR. In the civil law, one who acts for another, or transacts another's business. Calvin.
GESTU ET FAMA. An ancient and obsolete writ
resorted to when a person's good behavior was
impeached. Lamb.Eir. 1. 4, c. 14.
GERMANUS. Lat. Descended of the same stock,
or from the same couple of ancestors; of the
whole or full blood. Mackeld.Rom.Law, § 145.
GERMEN TERR1E. Lat. A sprout of the earth.
A young tree, so called.
GERONTOCOMI. In the civil law, officers appointed to manage hospitals for the aged poor.
GESTUM. Lat. In Roman law, a deed or act; a
thing done. Some writers affected to make a distinction between "gestum" and "factum." But the
best authorities pronounced this subtile and indefensible. Dig. 50, 16, 58.
GET, n. Under Hebraic law, evidence of the
granting of a divorce. Kopit v. Zilberszmidt, Sup.,
35 N.Y.S.2d 558, 560. A bill of divorce among the
816
GIFT
Md. 241, 134 A. 210, 213, 47 A.L.R. 730; Starks v. Lincoln,
316 Mo. 483, 291 S. W. 132, 134.
As distinguished from a gift In trust, it is one where not
only the legal title but the beneficial ownership as well is
vested in the donee. Watkins v. Bigelow, 93 Minn. 210,
100 N.W. 1104; Allen v. Hendrick, 104 Or. 202, 206 P. 733,
740.
The only important difference between a "gift" and a
"voluntary trust" is that in the case of a gift the thing
itself passes to the donee, while in the case of a trust the
actual, beneficial, or equitable title passes to the cestui que
trust, while the legal title is transferred to a third person,
or retained by the person creating it. In re Alberts' Estate,
38 Cal.App.2d 42, 100 P.2d 538, 540.
Jews which is drawn in the Aramaic language,
uniformly worded and carefully written by a proper scribe, and after proper ceremonies and questionings by the rabbi, especially as to whether
both parties agree to the divorce, the husband
hands to the wife in the presence of ten witnesses. Shilman v. Shilman, 105 Misc. 461, 174 N.Y.S.
385, 386.
GEVILLOURIS. In old Scotch law. Gaolers. 1
Pitc.Crim.Tr. pt. 2, p. 234.
GEWINEDA. In Saxon law, the ancient convention of the people to decide a cause.
In English law, a conveyance of lands in tail;
a conveyance of an estate tail in which the operative words are "I give," or "I have given."
2 Bl.Comm. 316; 1 Steph.Comm. 473.
GEWITNESSA. In Saxon and old English law,
the giving of evidence.
-Gift in Default of Appointment. One implied on
failure of donee to exercise a power of appointment where it was his duty to do so or where donor expresses an intention to make a legal gift to
members of class in default of appointment. Restatement, Real Property, vol. 3, Topic 9, § 367.
GEWRITE. In Saxon law, deeds or charters;
writings. 1 Reeve, Eng.Law 10.
GIBBET. A gallows; the post on which malefactors are hanged, or on which their bodies are exposed. It differs from a common gallows, in that
it consists of one perpendicular post, from the top
of which proceeds one arm, except it be a double
gibbet, which is formed in the shape of the Roman
capital T. Enc.Lond.
GIFT CAUSA MORTIS. A gift of personalty
made in expectation of death, then imminent, on an
essential condition that property shall belong fully
to donee in case donor dies as anticipated, leaving
donee surviving him, and gift is not in meantime
revoked. Flint v. Varney, 220 Iowa 1241, 264 N.W.
277, 278, 279.
GIBBET LAW. Lynch law; in particular a custom anciently prevailing in the parish of Halifax,
England, by which the free burghers held a summary trial of any one accused of petit larceny,
and, if they found him guilty, ordered him to be decapitated.
GIFT DEED. A deed for a nominal sum. Bertelsen v. Bertelson, 49 Cal.App.2d 479, 122 P.2d 130,
133.
GIFT. A voluntary transfer of personal property
without consideration. Gordon v. Barr, Cal.App.,
82 P.2d 955, 956, 957. A parting by owner with
property without pecuniary consideration. Hays'
Adm'rs v. Patrick, 266 Ky. 713, 99 S.W.2d 805, 809.
A voluntary conveyance of land, or transfer of
goods, from one person to another, made gratuitously, and not upon any consideration of blood or
money. 2 Bl.Comm. 440; 2 Steph.Comm. 102; 2
Kent, Comm. 437. Ingram v. Colgan, 106 Cal. 113,
38 P. 315, 28 L.R.A. 187, 46 Am.St.Rep. 221; Gray
v. Barton, 55 N.Y. 72, 14 Am.Rep. 181; Hynes v.
White, 47 Cal.App. 549, 190 P. 836, 838; In re Van
Alstyne, 207 N.Y. 298, 100 N.E. 802, 804.
GIFT ENTERPRISE. A scheme for the division
or distribution of articles to be determined by
chance amongst those who have taken shares in
the scheme. City of Oxford v. Ritz Theatre, Miss.,
180 So. 88, 89; State v. Shugart, 138 Ala. 86, 35
So. 28, 100 Am.St.Rep. 17; Winston v. Beeson, 135
N.C. 271, 47 S.E. 457, 65 L.R.A. 167.
A sporting artifice by which, for example, a merchant or
tradesman sells his wares for their market value, but, by
way of inducement, gives to such purchaser a ticket which
entitles him to a chance to win certain prizes to be determined after the manner of a lottery. Code 1933, § 26-6501.
Barker v. State, 56 Ga.App. 705, 193 S.E. 605, 607, 609.
Essential requisites of "gift" are capacity of donor,
intention of donor to make gift, completed delivery to or
for donee, and acceptance of gift by donee. In re Greenberg's Will, 286 N.Y.S. 56, 58, 158 Misc. 446.
In popular language, a voluntary conveyance or assignment is called a "deed of gift"
An "advancement" is a gift made with the intention that
it shall be charged to the donee in the distribution of the
donor's estate, while a "gift" is made without any purpose
that it shall be thereafter accounted for. Hon v. Connelly,
253 Ky. 181, 69 S.W.2d 23.
An absolute gift, or gift inter vivos, as distinguished from
a testamentary gift, or one made in contemplation of death,
is one by which the donee becomes in the lifetime of the
donor the absolute owner of the thing given, whereas a
donatio mortis causa leaves the whole title in the donor,
unless the event occurs (the death of the donor) which is
to divest him. Buecker v. Carr, 60 N.J.Eq. 300, 47 A. 34;
Goodan v. Goodan, 184 Ky. 79, 211 S.W. 423, 424; Baker v.
Baker, 123 Md. 32, 90 A. 776, 779; McCoy v. Shawnee
Building & Loan Ass'n, 122 Kan. 38, 251 P. 194, 195, 49
A.L.R. 1441; First Nat. Bank v. Liberty Trust Co., 151
Black's Law Dictionary Revised 4th Ed.-52
GIFTS INTER VIVOS. Gifts between the living,
which are perfected and become absolute during
lifetime of donor and donee. Neal v. Neal, 194
Ark. 226, 106 S.W.2d 595, 600.
GIFT OVER. A gift to one for life, and from and
after his deceased to another, created a "gift over."
In re Feeney's Estate, 293 Pa. 273, 142 A. 284, 289.
GIFT TO A CLASS. A gift of aggregate sum to
body of persons uncertain in number at time of
gift, to be ascertained at future time, who are all
to take in equal shares, or some other definite proportion; share of each being dependent for its
amount upon ultimate number taking. In re Murphy's Estate, 99 Mont. 114, 43 P.2d 233, 236; Wessborg v. Merrill, 195 Mich. 556, 162 N.W. 102, 106,
L.R.A.1918E, 1074; Blackstone v. Althouse, 278 Ill.
481, 116 N.E. 154, 157, L.R.A.1918B, 230.
817
GIFTA
GIFTA AQUAE. The stream of water to a mill.
Mon.Angl. tom. 3.
GIFTOMAN. In Swedish law, the right to dispose of a woman in marriage, or the person possessing such right,—her father, if living, or, if
he be dead, the mother.
GILD. In Saxon law, a tax or tribute. Spelman.
A fine, mulct, or amerciament ; a satisfaction or
compensation for an injury.
A fraternity, society, or company of persons
combined together, under certain regulations, and
with the king's license, and so called because its
expenses were defrayed by the contributions (geld,
gild) of its members. Spelman. In other words,
a corporation; called, in Latin, "societal," "collegium," "f ratria," "f raternitas," "sodalitium,"
"adunatio;" and, in foreign law, "gildonia." Spelman. There were various kinds of these gilds,
as merchant or commercial gilds, religious gilds,
and others. 3 Turn.Anglo Sax. 98; 3 Steph.Comm.
173, note u. See Gilda Mercatoria.
A friborg, or decennary; called, by the Saxons,
"gyldscipes," and' its members, "gildones" and
"congildones." Spelman.
GILD-HALL. See Guildhall.
GILD-RENT. Certain payments to the crown
from any gild or fraternity.
GILDA MERCATORIA. A gild merchant, or merchant gild; a gild, corporation, or company of
merchants. 10 Coke, 30.
GILDABLE. In old English law, taxable, tributary, or contributory; liable to pay tax or tribute.
Cowell; Blount.
GILDO. In Saxon law, members of a gild or decennary. Oftener spelled "congildo." Du Cange;
Spelman.
GILL. A measure of capacity, equal to one-fourth
of a pint.
GILOUR. L. Fr. A cheat or deceiver. Applied in
Britton to those who sold false or spurious things
for good, as pewter for silver or laten for gold.
Britt. c. 15.
GILT EDGE. As applied to commercial paper, a
colloquialism, meaning of the best quality or highest price, first class, and not implying that a note
which is not gilt edge is not collectible, or that
the maker is irresponsible. Martin v. Moreland,
93 Or. 61, 180 P. 933, 934.
GIN MEN. In mining. Men employed in coal
mines who have no specific work to do, but are
hired to do general work, or any kind of work
they are directed to do. The word "gin" in this
expression is apparently a contraction of the word
"general." Smith v. North Jellico Coal Co., 114
S.W. 785, 786, 131 Ky. 196, 28 L.R.A.N.S. 1266.
GINNING ADVANCES. Include cost to grower of
picking crop, wages of weigher, rent of sleeping
tents for pickers, and cost of trucking cotton from
field to gin and other such expenses. Schumann
v. California Cotton Credit Corporation, 105 Cal.
App. 136, 286 P. 1068, 1070.
GIRANTE. An Italian word, which signifies the
drawer of a bill. It is derived from "girare," to
draw.
GIRDLE, v. To "girdle" a tree for the purpose
of obtaining crude turpentine is to cut off a ring
of bark around the trunk. Howard v. State, 17
Ala.App. 9, 81 So. 345, 346.
GIRTH. In Saxon and old English law, a measure
of length, equal to one yard, derived from the girth
or circumference of a man's body.
GIRTH AND SANCTUARY. In old Scotch law,
an asylum given to murderers, where the murder
was committed without any previous design, and
in chaude mella, or heat of passion. Bell.
GISEMENT. L. Fr. Agistment; cattle taken in
to graze at a certain price; also the money received for grazing cattle.
GISER. L. Fr. To lie. Gist en le bouche, it lies
in the mouth. Le action biers gist, the action well
lies. Gisant, lying.
GISETAKER. An agister; a person who takes
cattle to graze.
GISLE. In Saxon law, a pledge. Fredgisle, a
pledge of peace. Gislebert, an illustrious pledge.
GIST. In pleading, the essential ground or object
of the action in point of law, without which there
would be no cause of action. Gould, Pl. c. 4, § 12.
The cause for which an action will lie, the
ground or foundation of a suit, without which it
would not be maintainable, the essential ground
or object of the suit without which there is no
cause of action. Casavalo v. D'Auria, 12 N.J.
Misc. 81, 169 A. 520.
GIVE. To transfer ownership or possession without compensation. University of Vermont v. Wilbur's Estate, 105 Vt. 147, 163 A. 572, 575. To bestow upon another gratuitously or without consideration. Neblett v. Smith, 142 Va. 840, 128 S.E. 247,
251.
To transfer or yield to, or bestow upon, another. One of
the operative words in deeds of conveyance of real property, importing at common law, a warranty or covenant for
quiet enjoyment during the lifetime of the grantor. Mack
v. Patchin, 29 How.Prac., N.Y., 23; Young v. Hargrave, 7
Ohio, 69, pt. 2; Dow v. Lewis, 4 Gray, Mass., 473.
GIVE AND BEQUEATH. These words, in a will,
import a benefit in point of right, to take effect upon the decease of the testator and proof of the will,
unless it is made in terms to depend upon some
contingency or condition precedent. Eldridge v.
Eldridge, 9 Cush., Mass., 519.
GIVE BAIL. To furnish or put in bail or security
for one's appearance.
GIVE COLOR. To admit an apparent or colorable
right in the opposite party.
818
GLOSSA
Under the ancient system a plea of confession and avoidance must give color to the affirmative averments of the
complaint, or it would be fatally defective. The "giving
color" was simply the absence of any denials, and the
express or silent admission that the declaration, as far as
it went, told the truth. Smith v. Marley, 39 Idaho, 779,
230 P. 769, 770. See Color.
GIVE JUDGMENT. To render, pronounce, or declare the judgment of the court in an action at
law; not spoken of a judgment obtained by confession. Schuster v. Rader, 13 Colo. 329, 22 P.
505.
GIVE NOTICE. To communicate to another, in
any proper or permissible legal manner, Information or warning of an existing fact or state of
facts or (more usually) of some intended future
action. O'Neil v. Dickson, 11 Ind. 254; In re
Devlin, 7 Fed.Cas. 564; St. Louis, B. & M. Ry. Co.
v. Hicks, Tex.Civ.App., 158 S.W. 192, 194.
GIVE TIME. Extending the period at which, by
the contract between them, the principal debtor
was originally liable to pay the creditor. Buffalo
Forge Co. v. Fidelity & Casualty Co. of New York,
142 Misc. 647, 256 N.Y.S. 329, 334.
GIVE WAY. In the rules of navigation, one vessel is said to "give way" to another when she deviates from her course in such a manner and to
such an extent as to allow the other to pass without altering her course. See Lockwood v. Lashell,
19 Pa. 350.
GIVER. A donor; he who makes a gift.
GIVING IN PAYMENT. In Louisiana law, a
phrase (translating the Fr. "dation en paiement")
which signifies the delivery and acceptance of
real or personal property in satisfaction of a debt,
instead of a payment in money. See Civil Code
La. art. 265.
GIVING RINGS. A ceremony anciently performed in England by serjeants at law at the time of
their appointment. The rings were inscribed with
a motto, generally in Latin.
GLADIOLUS. A little sword or dagger; a kind
of sedge. Mat. Paris.
GLADIUS. Lat. A sword. An ancient emblem
of defense. Hence the ancient earls or comites
(the king's attendants, advisers, and associates
in his government) were made by being girt with
swords, (gladio succincti.)
The emblem of the executory power of the law
in punishing crimes. 4 Bl.Comm. 177.
In old Latin authors, and in the Norman laws,
this word was used to signify supreme jurisdiction, (jus gladii.)
GLAIVE. A sword, lance, or horseman's staff.
One of the weapons allowed in a trial by combat.
GLANS. In the civil law, acorns or nuts of the
oak or other trees. In a larger sense, all fruits
of trees.
GLASS—MEN. A term used in St. 1 Jac. I, c. 7,
for wandering rogues or vagrants.
GLAVEA. A hand dart. Cowell.
GLEANING. The gathering of grain after reapers, or of grain left ungathered by reapers. Held
not to be a right at common law. 1 H.B1. 51.
GLEBA. A turf, sod, or clod of earth. The soil
or ground; cultivated land in general. Church
land (solum et dos ecclesice). Spelman. See
Glebe.
GLEBIE ASCRIPTITII. Villein-socmen, who
could not be removed from the land while they
did the service due. Bract. c. 7; 1 Reeve, Eng.
Law, 269.
GLEBARI2E. Turfs dug out of the ground.
Cowell.
GLEBE. In Ecclesiastical law, the land possessed
as part of the endowment or revenue of a church
or ecclesiastical benefice.
In Roman law, a clod; turf; soil. Hence, the
soil of an inheritance; an agrarian estate. Servi
addicti glebe were serfs attached to and passing
with the estate. Cod. 11, 47, 7, 21; Nov. 54, 1.
GLIDER. A form of aircraft similar to an airplane but without any engine. Spychala v. Metropolitan Life Ins. Co., 339 Pa. 237, 13 A.2d 32, 33.
GLIDING. Art of flying a glider. Spychala v.
Metropolitan Life Ins. Co., 339 Pa. 237, 13 A.2d
32, 33.
GLISCYWA. In Saxon law, a fraternity.
GLOBE DOCTRINE. That where the National
Labor Relations Board could conclude that either
a craft or a plant unit would be appropriate for
collective bargaining purposes and where either
contention if unopposed would be adopted by the
Board, it normally gives paramount weight to the
wishes of the employees within the craft unit.
International Ass'n of Machinists, Tool and Die
Makers' Lodge No. 35 v. National Labor Relations
Board, 71 App.D.C. 175, 110 F.2d 29, 45.
GLOMERELLS. Commissioners appointed to determine differences between scholars in a school
or university and the townsmen of the place.
Jacob.
GLOS. Lat. In the civil law, a husband's sister.
Dig. 38, 10, 4, 6.
GLOSS. An interpretation, consisting of one or
more words, interlinear or marginal; an annotation, explanation, or comment on any passage in
the text of a work, for purposes of elucidation or
amplification. Particularly applied to the comments on the Corpus Juris.
GLOSSA. Lat. A gloss, explanation, or interpretation.
The glossce of the Roman law are brief illustrative comments or annotations on the text of Justinian's collections,
made by the professors who taught or lectured on them
about the twelfth century, (especially at the law school of
Bologna,) and were hence called "glossators."
These
glosses were at first inserted in the text with the words to
which they referred, and were called "glossce interline-
819
GLOSSA
ares;" but afterwards they were placed in the margin,
partly at the side, and partly under the text, and called
"glossce marginales." A selection of them was made by
Accursius, between A. D. 1220 and 1260, under the title of
"glossa Ordinaria," which is of the greatest authority.
Mackeld.Rom.Law, § 90.
GO WITHOUT DAY. Words used to denote that
a party is dismissed the court. He is said to go
without day, because there is no day appointed
for him to appear again.
GLOSSA VIPERINA EST QUIE CORRODIT VISCERA TEXTUS. 11 Coke, 34. It is a poisonous
gloss which corrupts the essence of the text.
GOAF. In coal mining a space from which material has been removed or the waste left in old
work. Harlan Ridgeway Mining Co. v. Jackson,
278 Ky. 767, 129 S.W.2d 585, 586.
GLOSSATOR. In the civil law, a commentator
or annotator. A term applied to the professors
and teachers of the Roman law in the twelfth
century, at the head of whom was Irnerius. Mackeld. Rom. Law, § 90.
GLOUCESTER, STATUTE OF. The statute is
the 6 Edw. I, c. 1, A.D. 1278. It takes its name
from the place of its enactment, and was the first
statute giving costs in actions.
GLOVE SILVER. Extraordinary rewards formerly given to officers of courts, etc.; money formerly
given by the sheriff of a county in which no offenders are left for execution to the clerk of assize and judges' officers. Jacob.
GLOVES. It was an ancient custom on a maiden
assize, when there was no offender to be tried, for
the sheriff to present the judge with a pair of
white gloves. It is an immemorial custom to remove the glove from the right hand on taking
oath. Wharton.
GLYN. A hollow between two mountains; a valley or glen. Co.Litt. 5b.
GO. To be dismissed from a court. To issue
from a court. "The court said a mandamus must
go." 1 W.B1. 50. "Let a supersedeas go." 5 Mod.
421 "The writ may go." 18 C.B. 35.
GO BAIL. To assume the responsibility of a
surety on a bail-bond.
GO FIFTY-FIFTY. Division into halves of something under discussion by the parties at the time.
Boyer v. Bowles, 310 Mass. 134, 37 N.E.2d 489, 493.
GO HENCE. To depart from the court; with the
further implication that a suitor who is directed
to "go hence" is dismissed from further attendance upon the court in respect to the suit or proceeding which brought him there, and that he is
finally denied the relief which he sought, or, as
the case may be, absolved from the liability sought
to be imposed upon him. See Hiatt v. Kinkaid, 40
Neb. 178, 58 N.W. 700.
GO TO. In a statute, will, or other instrument, a
direction that property shall "go to" a designated
person means that it shall pass or proceed to such
person, vest in and belong to him. In re Hitchins'
Estate, 43 Misc. 485, 89 N.Y.S. 472; Plass v. Plass,
121 Cal. 131, 53 P. 448.
GO TO PROTEST. Commercial paper is said to
"go to protest" when it is dishonored by nonpayment or non-acceptance and is handed to a notary for protest.
GOAT, GOTE. In old English law, a contrivance
or structure for draining waters out of the land into the sea. Callis describes goats as "usual engines erected and built with portcullises and doors
of timber and stone or brick, invented first in Lower Germany." Callis, Sewers, (91), 112, 113. Cowell defines "gote," a ditch, sewer, or gutter.
GOB. In coal mining a space from which material has been removed or the waste left in old
work. Harlan Ridgeway Mining Co. v. Jackson,
278 Ky. 767, 129 S.W.2d 585, 586. Space between
face of coal and where props had been set by machine operators on previous trip. New Union
Coal Co. v. Suit, 172 Ark. 753, 290 S.W. 580, 581
GOD AND MY COUNTRY. The answer made
by a prisoner, when arraigned, in answer to the
question, "How will you be tried?"
In the ancient practice he had the choice (as appears by
the question) whether to submit to the trial by ordeal (by
God) or to be tried by a jury, (by the country;) and it is
probable that the original form of the answer was, "By
God or my country," whereby the prisoner averred his
innocence by declining neither of the modes of trial.
GOD-BOTE. An ecclesiastical or church fine paid
for crimes and offenses committed against God.
Cowell.
GOD-GILD. That which is offered to God or his
service. Jacob.
GOD'S PENNY. In old English law, earnest-money; money given as evidence of the completion of
a bargain. This name is probably derived from
the fact that such money was given to the church
or distributed in alms.
GOGING-STOLE. An old form of the word "cucking-stool" (q. v.). Cowell.
GOING. In various compound phrases (as those
which follow) this term implies either motion,
progress, active operation, or present and continuous validity and efficacy.
GOING AND COMING RULE. Declares that employees while going to or returning from their
places of employment are not within the scope of
their employment. Robinson v. George, 16 Cal.
2d 238, 105 P.2d 914, 917, 918.
GOING BEFORE THE WIND. In the language
of mariners and in the rules of navigation, a vessel is said to be going "before the wind" when the
wind is free as respects her course, that is, comes
from behind the vessel or over the stern, so that
her yards may be braced square across. She is
said to be "going off large" when she has the' wind
free on either tack, that is, when it blows from
820
GOOD
some point abaft the beam or from the quarter.
Hall v. The Buffalo, 11 Fed.Cas. 216; Ward v. The
Fashion, 29 Fed.Cas. 188.
GOING CONCERN. An enterprise which is being carried on as a whole, and with some particular object in view. The term refers to an existing solvent business, which is being copducted in
the usual and ordinary way for which it was organized. When applied to a corporation, it means
that it continues to transact its ordinary business.
State ex rel. Sorensen v. Lincoln Hail Ins. Co.,
133 Neb. 496, 276 N.W. 169, 174. A firm or corporation which, though embarrassed or even insolvent, continues to transact its ordinary business. White, etc., Mfg. Co. v. Pettes Importing
Co., C.C.Mo., 30 F. 865; Corey v. Wadsworth, 99
Ala. 68, 11 So. 350, 23 L.R.A. 618, 42 Am.St.Rep.
55; Pioneer Telephone & Telegraph Co. v. State,
64 Old. 304, 167 P. 995, 1000, L.R.A.1918C, 138;
City and County of Denver v. Denver Union Water Co., 246 U.S. 178, 38 S.Ct. 278, 62 L.Ed. 649.
GOING CONCERN VALUE. The value which inheres in a plant where its business is established,
as distinguished from one which has yet to establish its business. East Bay Water Co. v. McLaughlin, D.C.Cal., 24 F.Supp. 222, 226.
GOING INTO EFFECT OF ACT. Becoming operative as a law. State ex rel. Bishop v. Board of
Education of Mt. Orab Village School Dist., Brown
County, 139 Ohio St. 427, 40 N.E.2d 913, 919.
GOING OFF LARGE. See "Going Before the
Wind," supra.
GOING PRICE. The prevalent price; the current market value of the article in question at the
time and place of sale. Kelsea v. Haines, 41 N.H.
254; Hoff v. Lodi Canning Co., 51 Cal.App. 299,
196 P. 779, 780.
GOING THROUGH THE BAR. The act of the
chief of an English common-law court in demanding of every member of the bar, in order of seniority, if he has anything to move.
This was done at the sitting of the court each day in
term, except special paper days, crown paper days in the
queen's bench, and revenue paper days in the exchequer.
On the last day of term this order is reversed, the first and
second time round. In the exchequer the postman and tubman are first called on. Wharton.
GOING TO THE COUNTRY. When a party, under the common-law system of pleading, finished
his pleading by the words "and of this he puts
himself upon the country," this was called "going
to the country." It was the essential termination
of a pleading which took issue upon a material
fact in the preceding pleading. Wharton.
GOING VALUE. A value or asset which arises
from having an established or going business.
Southern Bell Telephone & Telegraph Co. v. Louisiana Public Service Commission, 187 La. 137, 174
So. 180, 195. Oshkosh Waterworks Co. v. Railroad
Commission of Wisconsin, 161 Wis. 122, 152 N.W.
859, 861, L.R.A.1916F, 592; Public Service Gas Co.
v. Board of Public Utility Com'rs, 84 N.J.L. 463,
87 A. 651, 657, L.R.A.1918A, 421. •
GOING WITNESS. One who is about to take
his departure from the Jurisdiction of the court,
although only into a state or country under the
general sovereignty; as from one to another of
the United States, or from England to Scotland.
GOLD BOND. One payable in gold coin or its
equivalent, which means any money acceptable to
United States government in payment of debts
due it. Huron Lodge No. 444, B. P. 0. E. v. McNamara, 53 S.D. 153, 220 N.W. 468, 470.
GOLDA. A mine. Blount. A sink or passage
for water. Cowell.
GOLDSMITHS' NOTES. Bankers' cash notes (i.
e., promissory notes given by a banker to his
customers as acknowledgments of the receipt of
money) were originally called in London "goldsmiths' notes," from the circumstance that all the
banking business in England was originally transacted by goldsmiths. Wharton.
GOLDWIT. A mulct or fine in gold.
GOLIARDUS. L. Lat. A jester, buffoon, or
juggler. Spelman, voc. "Goliardensis."
GOMASHTAH. In Hindu law, an agent; a steward; a confidential factor; a representative.
GONORRHCEA. In medical jurisprudence, a venereal disease, characterized by a purulent inflammation of the urethra in the male and the vagina
in the female. Vulgarly called "clap." Sally v.
Brown, 220 Ky. 576, 295 S.W. 890, 891.
GOOD. Valid; sufficient in law; effectual; unobjectionable; sound. Morrison v. Farmers' &
Traders' State Bank, 70 Mont. 146, 225 P. 123, 125;
McNabb v. Juergens (Iowa) 180 N.W. 758, 761;
Raney & Hamon v. Hamilton & White, Tex.Civ.
App., 234 S.W. 229, 230.
Responsible; solvent; able to pay an amount
specified.
Of a value corresponding with its terms; collectible. A note is said to be "good" when the
payment of it at maturity may be relied on. Curtis v. Smallman, 14 Wend., N.Y., 232; Cooke v.
Nathan, 16 Barb., N.Y., 344; In re Parker Bros.
& Johnson, D.C.N.C., 279 F. 425, 428.
Writing the word "Good" across the face, of a check is
the customary mode in which bankers at the present day
certify that the drawer has funds to meet it, and that it
will be paid on presentation for that purpose. Merchants'
Nat. Bank v. State Nat. Bank, 10 Wall. 645, 19 L.Ed. 1008;
Irving Bank v. Wetherald, 36 N.Y. 335.
Public good. Under a statute providing that the Public
Service Commission shall make an order permitting a transfer of the property of a public utility, when it is for the
public good, such transfer is for the public good whenever
it is not contrary to law and is reasonable, since it is not
for the public good that such utilities be unreasonably
restrained of their liberties. Grafton County Electric Light
& Power Co. v. State, 77 N.H. 539, 94 A. 193, 194.
GOOD ABEARING. See Abearance.
GOOD AND CLEAR RECORD TITLE, FREE
FROM ALL INCUMBRANCES. A title which on
the record itself can be again sold as free from
obvious defects and substantial doubts, and differs
821
GOOD
from a "good, marketable title," which is an actual title, but which may be established by evidence independently of the record. O'Meara v.
Gleason, 246 Mass. 136, 140 N.E. 426, 427.
love and affection; that founded on motives of
generosity, prudence, and natural duty. Belknap
v. Northwestern Mut. Life Ins. Co., 108 Vt. 421,
188 A. 897, 899.
GOOD AND LAWFUL MEN. Those qualified for
service on juries. Bonds v. State, Mart. & Y.,
Tenn. 146, 17 Am.Dec. 795; Turner v. State, 128
Tenn. 27, 157 S.W. 67, 68, Ann.Cas.1914D, 693.
GOOD COUNTRY. In Scotch law, good men of
the country. A name given to a jury.
GOOD AND SUBSTANTIAL DEPOT. A depot
suitable to take care of both passenger and freight
business. Louisville & N. R. Co. v. Letcher County Coal & Improvement Co., 195 Ky. 29, 243 S.W.
45, 48.
GOOD AND SUFFICIENT BRAKES. Brakes
adequate to promptly check and slacken speed of
motor vehicle and bring it to complete stop (Comp.
St.1922, § 8395). Ziskovsky v. Miller, 120 Neb.
255, 231 N.W. 809, 811.
GOOD AND VALID. Reliable, sufficient, and unimpeachable in law; adequate; responsible.
GOOD AND WORKMANLIKE MANNER. In a
manner generally considered skillful by those capable of judging such work in the community of
the performance. Burnett & Bean v. Miller, 205
Ala. 606, 88 So. 871, 872; Morris v. Fox, 79 Ind.
App. 389, 135 N.E. 663, 664.
GOOD BEHAVIOR. Orderly and lawful conduct;
behavior such as is proper for a peaceable and
law-abiding citizen. Huyser v. Com., 25 Ky.L.
Rep. 608, 76 S.W. 175; In re Spenser, 22 Fed.Cas.
921. "Good behavior," as used in an order suspending sentence upon a defendant during good
behavior, means merely conduct conformable to
law, or to the particular law theretofore breached.
Ex parte Hamm, 24 N.M. 33, 172 P. 190, 191, L.R.
A.1918D, 694; Baker v. Commonwealth, 181 Ky.
437, 205 S.W. 399, 401.
GOOD CAUSE. Substantial reason, one that affords a legal excuse. Pines v. District Court in
and for Woodbury County, 233 Iowa 1284, 10 N.
W.2d 574, 580, 583. Legally sufficient ground or
reason. Jackson v. U. S., C.C.A.Ariz., 295 F. 620,
622; Lockwood v. Lockwood, 19 Ariz. 215, 168 P.
501, 502.
As respects discharging employees in classified service,
"good cause" includes any ground which is put forward by
authorities in good faith and which is not arbitrary, irrational, unreasonable or irrelevant to the duties with which
such authorities are charged, and is not limited to some
form of inefficiency or of misconduct on the part of the
person dismissed. Nephew v. Wills, 298 Mich. 187, 298
N.W. 376, 377, 135 A.L.R. 1340.
As respects Industrial Accident Commission's rescinding
its decision, "good cause" included a mistake of law, unless
the award had been sustained on appeal. Stearns Coal &
Lumber Co. v. Vanover, 262 Ky. 808, 91 S.W.2d 518.
"Good cause" for extension of time in which to serve bill
of exceptions exists if delay was for good reason, or that
there was justification or excuse for the delay. Kisten v.
Kisten, 229 Wis. 479, 282 N.W. 629, 632.
GOOD CONSIDERATION. "Good consideration"
and "valuable consideration" are synonymous
terms, although technically "good consideration"
was defined as consideration of blood, or natural
GOOD FAITH. Honesty of intention, and freedom from knowledge of circumstances which
ought to put the holder upon inquiry. Siano v.
Helvering, D.C.N.J., 13 F.Supp. 776, 780. An honest intention to abstain from taking any unconscientious advantage of another, even through
technicalities of law, together with absence of all
information, notice, or benefit or belief of facts
which render transaction unconscientious. Warfield Natural Gas Co. v. Allen, 248 Ky. 646, 59 S.
W.2d 534, 91 A.L.R. 890; Crouch v. First Nat.
Bank, 156 Ill. 342, 40 N.E. 974; Waugh v. Prince,
121 Me. 67, 115 A. 612, 614.
GOOD HEALTH. "Good health," as employed in
insurance contract, ordinarily means a reasonably
good state of health. Kroon v. Travelers' Ins.
Co., 290 Ill.App. 35, 7 N.E.2d 935, 937. It means
that the applicant has no grave, important, or serious disease, and is free from any ailment that
seriously affects the general soundness and healthfulness of the system. Mincy v. Washington Nat.
Ins. Co., 130 Pa.Super. 285, 196 A. 893, 897. Not
mere temporary indisposition not tending to weaken or undermine constitution. Zogg v. Bankers'
Life Co. of Des Moines, Iowa, C.C.A.W.Va., 62 F.
2d 575, 578. It does not mean a condition of perfect health. White v. Sovereign Camp, W. 0. W.,
184 S.C. 215, 192 S.E. 161, 165.
GOOD JURY. A jury of which the members are
selected from the list of special jurors. See L.R.
5 C.P. 155.
GOOD, MERCHANTABLE ABSTRACT OF TITLE. An abstract showing a good title, clear
from incumbrances, and not merely an abstract
of matters of record affecting the title, made by
one engaged in the business of making abstracts in
such form as is customary, as passing current
among persons buying and selling real estate and
examining titles. Geithman v. Eichler, 265 Ill.
579, 107 N.E. 180, 182.
GOOD OF SERVICE. Discharge of a civil service employee for "good of the service" or "for
cause" implies some personal misconduct, or fact,
rendering incumbent's further tenure harmful to
the public interest. State ex rel. Eckles v. Kansas
City, Mo.App., 257 S.W. 197, 200.
GOOD RECORD TITLE. A "good record title,"
without words of limitation, means that the proper records shall show an unincumbered, fee-simple
title, the legal estate in fee, free and clear of all
valid claims, liens, and incumbrances. Riggins v.
Post, Tex.Civ.App., 172 S.W. 210, 211.
GOOD REPUTE. An expression, synonymous
with and meaning only "of good reputation."
State v. Wheeler, 108 Mo. 658, 665, 18 S.W. 924.
822
GOPHER
726; Acme, Palmers & De Mooy Foundry Co. v.
Weiss, D.C.Ohio, 21 F.2d 492, 493.
GOOD SAMARITAN DOCTRINE. One who sees
a person in imminent and serious peril through
negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attempting
to effect a rescue, provided the attempt is not
recklessly or rashly made. Jobst v. Butler Well
Servicing, Inc., 372 P.2d 55, 59, 190 Kan. 86. Under doctrine, negligence of a volunteer rescuer
must worsen position of person in distress before
liability will be imposed. U. S. v. DeVane, C.A.
Fla., 306 F.2d 182, 186.
GOODRIGHT, GOODTITLE. The fictitious plaintiff in the old action of ejectment, most frequently called "John Doe," was sometimes called
"Goodright" or "Goodtitle."
GOODS. A term of variable content. It may
include every species of personal property or it
may be given a very restricted meaning. Cate
v. Merrill, 116 Me. 235, 102 A. 235, 236, 237; Canales v. Earl, Mun.Ct.N.Y., 168 N.Y.S. 726, 727.
In contracts, the term "goods" is not so wide
as "chattels," for it applies to inanimate objects,
and does not include animals or chattels real, as a
lease for years of house or land, which "chattels"
does include. Co. Litt. 118; St. Joseph Hydraulic
Co. v. Wilson, 133 Ind. 465, 33 N.E. 113; Putnam
v. Westcott, 19 Johns, N.Y., 76.
GOOD TITLE. One free from reasonable doubt,
that is, not only a valid title in fact, but one that
can again be sold to a reasonable purchaser or
mortgaged to a person of reasonable prudence.
Langford v. Berry, 68 Ga.App. 193, 22 S.E.2d 349,
351, a title free from litigation, palpable defects
and grave doubts. Collins v. Martin, Tex.Civ.
App., 6 S.W.2d 126, 128; Williams v. Hefner, 89
Mont. 361, 297 P. 492, 496.
GOOD WILL. The favor which the management
of a business wins from the public. Seneca Hotel Co. v. U. S., Ct.C1., 42 F.2d 343, 344. The fixed
and favorable consideration of customers arising
from established and well-conducted business.
Colton v. Duvall, 254 Mich. 346, 237 S.W.2d 48, 49.
The favorable consideration shown by the purchasing public to goods known to emanate from
a particular source. White Tower System v.
White Castle System of Eating Houses Corporation, C.C.A.Mich., 90 F.2d 67, 69. Something in
business which gives reasonable expectancy of
preference in race of competition. In re Witkind's
Estate, 167 Misc. 885, 4 N.Y.S.2d 933, 947. The custom or patronage of any established trade or business; the benefit or advantage of having established a business and secured its patronage by the
public. The advantage or benefit which is acquired by an establishment, beyond the mere value
of the capital, stocks, funds, or property employed
therein, in consequence of the general public patronage and encouragement which it receives
from constant or habitual customers, on account
of its local position, or common celebrity, or reputation for skill or affluence or punctuality, or
from other accidental circumstances or necessities, or even from ancient partialities or prejudices. Story, Partn. § 99; Haverly v. Elliott, 39
Neb. 201, 57 N.W. 1010. And as property incident to business sold, favor vendor has won from
public, and probability that all customers will
continue their patronage. Nye Odorless Incinerator Corporation v. Felton, 5 W.W.Harr. 236,
162 A. 504, 511. It means every advantage, every
positive advantage, that has been acquired by a
proprietor in carrying on his business, whether
connected with the premises in which the business
is conducted, or with the name under which it is
managed, or with any other matter carrying with
it the benefit of the business. Glen & Hall Mfg.
Co. v. Hall, 61 N.Y. 226, 19 Am.Rep. 278; In re
Ball's Estate, 161 App.Div. 79, 146 N.Y.S. 499,
501; Whittle v. Davie, 116 Va. 575, 82 S.E. 724.
In wills, "goods" is nomen generalissimum, and,
if there is nothing to limit it, will comprehend all
the personal estate of the testator, as stocks,
bonds, notes, money, plate, furniture, etc. Kendall v. Kendall, 4 Russ. 370; Chamberlain v. Western Transp. Co., 44 N.Y. 310, 4 Am.Rep. 681; Keyser v. School Dist., 35 N.H. 483.
GOODS AND CHATTELS. This phrase is a general denomination of personal property, as distinguished from real property; the term "chattels" having the effect of extending its scope to
any objects of that nature which would not properly be included by the term "goods" alone, e. g.,
living animals, emblements, and fruits, and terms
under leases for years. Larson v. Judd, 200 Ill.
App. 420. The general phrase also embraces
choses in action, as well as personalty in possession. In wills. The term "goods and chattels"
will, unless restrained by the context, pass all the
personal estate, including leases for years, cattle,
corn, debts, and the like. Ward, Leg. 208, 211.
GOODS SOLD AND DELIVERED. A phrase frequently used in the action of assumpsit, when the
sale and delivery of goods furnish the cause.
GOODS, WARES, AND MERCHANDISE. A general and comprehensive designation of such chattels as are ordinarily the subject of traffic and
sale. The phrase is used in the statute of frauds,
and is frequently found in pleadings and other
instruments. As to its scope, see State v. Brooks,
4 Conn. 449; French v. Schoonmaker, 69 N.J.L. 6,
54 A. 225; Sewall v. Allen, 6 Wend., N.Y., 355;
Smith v. Wilcox, 24 N.Y. 358, 82 Am.Dec. 302;
Banta v. Chicago, 172 Ill. 204, 50 N.E. 233, 40 L.
R.A. 611; Basset v. City of Boston, 226 Mass. 64,
114 N.E. 1035; Culp v. Holbrook, 76 Ind.App. 272,
129 N.E. 278, 280.
GOOLE. In old English law, a breach in a bank
or sea wall, or a passage worn by the flux and reflux of the sea. St. 16 & 17 Car. II. c. 11.
GOPHER HOLING. The " 'gopher hole' method
of blasting" consists in boring holes, horizontally
into the bank of earth and inserting therein charg-
823
GORCE
es of powder, the explosion of which dislodges
the bank. Bartnes v. Pittsburg Iron Ore Co., 123
Minn. 131, 143 N.W. 117.
GORCE, or GOES. A wear, pool, or pit of water.
Termes de la Ley.
GORE. In old English law, a small, narrow slip
of ground. Cowell. In modern land law, a small
triangular piece of land, such as may be left between surveys which do not close. In some of the
New England states (as Maine and Vermont) the
term is applied to a subdivision of a county, having a scanty population and for that reason not
organized as a town.
GORGE. A defile between hills or mountains,
that is a narrow throat or outlet from a region
of country. Gibbs v. Williams, 25 Kan. 214, 37
Am.Rep. 241.
GOSSIPRED. In canon law, compaternity; spiritual affinity.
GOUT. In medical jurisprudence, an inflammation of the fibrous and ligamentous parts of the
joints, characterized or caused by an excess of
uric acid in the blood; usually, but not invariably,
occurring in the joints of the feet, and then
specifically called "podagra."
GOVERN. To direct and control the actions or
conduct of, either by established laws or by arbitrary will; to direct and control, rule, or regulate, by authority. Tucker v. State, 218 Ind. 614,
35 N.E.2d 270, 291. To be a rule, precedent, law
or deciding principle for. Asnon v. Foley, 105
Cal.App. 624, 288 P. 792, 795.
GOVERNMENT. From the Latin gubernaculum.
Signifies the instrument, the helm, whereby the
ship to which the state was compared, was guided
on its course by the "gubernator" or helmsman,
and in that view, the government is but an agency
of the state, distinguished as it must be in accurate thought from its scheme and machinery of
government. State v. Chase, 175 Minn. 259, 220
N.W. 951, 953.
The system of polity in a state; that form of
fundamental rules and principles by which a nation or state is governed, or by which individual
members of a body politic are to regulate their
social actions; a constitution, either written or
unwritten, by which the rights and duties of citizens and public officers are prescribed and defined, as a monarchical government, a republican
government, etc. Webster.
An empire, kingdom, state or independent political community; as in the phrase, "Compacts between independent governments."
The sovereign or supreme power in a state or
nation.
The machinery by which the sovereign power
in a state expresses its will and exercises its functions; or the framework of political institutions,
departments, and offices, by means of which the
executive, judicial, legislative, and administrative
business of the state is carried on.
The whole class or body of office-holders or
functionaries considered in the aggregate, upon
whom devolves the executive, judicial, legislative,
and administrative business of the state. Stokes
v. United States, C.C.A.Mo., 264 F. 18, 22.
In a colloquial sense, the United States or its
representatives, considered as the prosecutor in
a criminal action; as in the phrase, "the government objects to the witness."
The regulation, restraint, supervision, or control which is exercised upon the individual members of an organized jural society by those invested with authority; or the act of exercising
supreme political power or control. Chicago, B.
& Q. R. Co. v. School Dist. No. 1 in Yuma County,
63 Colo. 159, 165 P. 260, 263.
Federal government. The government of the
United States of America, as distinguished from
the governments of the several states.
Local government. The government or administration of a particular locality; especially, the
governmental authority of a municipal corporation, as a city or county, over its local and individual affairs, exercised in virtue of power delegated to it for that purpose by the general government of the state or nation.
Mixed government. A form of government
combining some of the features of two or all of
the three primary forms, viz., monarchy, aristocracy, and democracy.
Republican government. One in which the powers of sovereignty are vested in the people and
are exercised by the people, either directly, or
through representatives chosen by the people, to
whom those powers are specially delegated.
Black, Const. Law (3d Ed.) 309; In re Duncan,
139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219; Minor v.
Happersett, 21 Wall. 175, 22 L.Ed. 627.
GOVERNMENT ANNUITIES SOCIETIES. Societies formed in England under 3 & 4 Wm. IV.
c. 14, 7 & 8 Vict. c. 83, 16 & 17 Vict. c. 45, and 27
& 28 Vict. c. 43, to enable the industrious classes
to make provisions for themselves by purchasing,
on advantageous terms, a government annuity for
life or term of years. Wharton.
GOVERNMENT DE FACTO. A government of
fact. A government actually exercising power
and control in the state, as opposed to the true
and lawful government; a government not established according to the constitution of the state,
or not lawfully entitled to recognition or supremacy, but which has nevertheless supplanted or
displaced the government de jure. A government
deemed unlawful, or deemed wrongful or unjust,
which, nevertheless, receives presently habitual
obedience from the bulk of the community. Aust.
Jur. 324.
There are several degrees of what is called "de facto government." Such a government, in its highest degree,
assumes a character very closely resembling that of a lawful government. This is when the usurping government
expels the regular authorities from their customary seats
and functions, and establishes itself in their place, and so
824
GOVERNMENTAL
becomes the actual government of a country. The distinguishing characteristic of such a government is that adherents to it in war against the government de jure do not
incur the penalties of treason; and, under certain limitations, obligations assumed by it in behalf of the country or
otherwise will, in general, be respected by the government
de jure when restored.
Such a government might be more aptly denominated a
"government of paramount force," being maintained by
active military power against the rightful authority of an
established and lawful government; and obeyed in civil
matters by private citizens. They are usually administered
directly by military authority, but they may be administered, also, by civil authority, supported more or less by
military force. Thorington v. Smith, 8 Wall. 8, 9, 19 L.Ed.
361.
GOVERNMENT DE JURE. A government of
right; the true and lawful government; a government established according to the constitution
of the state, and lawfully entitled to recognition
and supremacy and the administration of the
state, but which is actually cut off from power
or control. A government deemed lawful, or
deemed rightful or just, which, nevertheless, has
been supplanted or displaced; that is to say, which
receives not presently (although it received formerly) habitual obedience from the bulk of the
community. Aust. Jur. 324.
GOVERNMENT INSTRUMENTALITY DOCTRINE. The doctrine that government instrumentalities are tax exempt.
The dominion exercised over the estate of deceased fullblood restricted Creek Indian, would not vest in the government a control sufficient to exempt the estate from
estate taxes under the "government instrumentality doctrine". Landman v. Commissioner of Internal Revenue,
C.C.A.10, 123 F.2d 787, 789.
One owning and operating trucks under contract with
federal government for transportation of mail held not
entitled to have trucks exempted from state motor vehicle
registration tax, on ground that trucks were immune from
state taxation as agencies and instrumentalities of United
States government. Moody v. Louwein, Tex.Civ.App., 300
S. W. 957, 958.
GOVERNMENTAL. Of, pertaining to, or proceeding from government.
Generally, what are purely governmental duties of a city
can be settled only by the particular facts. City of Waco
v. Thompson, Tex.Civ.App., 127 S.W.2d 223, 225.
GOVERNMENTAL ACT. An act in exercise of
police power or in exercise of legislative, discretionary, or judicial powers conferred on municipality for benefit of public. Broome v. City of
Charlotte, 208 N.C. 729, 182 S.E. 325. Any act
a state may lawfully perform or authorize and,
as applied to the federal government, it is its every action within its constitutional power. Orme
v. Atlas Gas & Oil Co., 217 Minn. 27, 13 N.W.2d
757, 762. A step physically taken by persons
capable of exercising the sovereign authority of
the foreign nation. Banco de Espana v. Federal
Reserve Bank of New York, C.C.A.N.Y., 114 F.2d
438, 444.
GOVERNMENTAL ACTION. Any action of the
federal government within its constitutional power. Graves v. People of State of New York ex
rel. O'Keefe, N.Y., 306 U.S. 466, 59 S.Ct. 595, 596,
83 L.Ed. 927, 120 A.L.R. 1466; Chapman v. State,
179 Miss. 507, 176 So. 391, 392.
GOVERNMENTAL ACTIVITY. A function of
government in providing for its own support or
in providing services to the public. For example
taxation and the collection of taxes, Goble v. Zolot, 144 Neb. 70, 12 N.W.2d 311, 312; maintenance
of firehouse property, Haynes v. City of New
York, 259 App.Div. 837, 19 N.Y.S.2d 164, 165.
Generally when a municipality's activity is for advantage
of state as a whole, or is in performance of a duty imposed
by sovereign power, activity is "public" and "governmental." Department of Treasury v. City of Evansville,
Ind., 223 Ind. 435, 60 N.E.2d 952, 955.
GOVERNMENTAL AGENCY. A subordinate
creature of the sovereign created to carry out a
governmental function. Frequently, a political
subdivision or corporation. Hence a charitable
hospital which cared for free patients, sent to it
by city, Jewish Hospital of Brooklyn v. Doe, 252
App.Div. 581, 300 N.Y.S. 1111, 1117; city fire department, Ring v. Minneapolis St. Ry. Co., 173
Minn. 265, 217 N.W. 130, 131; county, Jefferson
County ex rel. Grauman v. Jefferson County Fiscal Court, 274 Ky. 91, 118 S.W.2d 181, 184; county
water district, Laguna Beach County Water Dist.
v. Orange County, 30 Cal.App.2d 740, 87 P.2d 46,
48; irrigation district, Outlook Irr. Dist. v. Fels,
176 Wash. 211, 28 P.2d 996, 998; municipal corporation, Town of Falls Church v. Arlington
County Board, 166 Va. 192, 184 S.E. 459, 463; Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42,
44; National Guard, Lind v. Nebraska National
Guard, 144 Neb. 122, 12 N.W.2d 652, 656, 150 A.L.
R. 1449; poor district, Managers for Relief and
Employment of Poor of Germantown Tp. v. Witkin, 329 Pa. 410, 196 A. 837, 840; school district,
State ex rel. Klimek v. School Dist. No. 70, Otter
Tail County, 204 Minn. 279, 283 N.W. 397, 399;
Tennessee Valley Authority, Posey v. Tennessee
Valley Authority, C.C.A.Ala., 93 F.2d 726, 727; and
every agency which Congress can constitutionally
create. Graves v. People of State of New York
ex rel. O'Keefe, N.Y., 306 U.S. 466, 59 S.Ct. 595,
597, 83 L.Ed. 927, 120 A.L.R. 1466.
GOVERNMENTAL AGENTS. Those performing
duties of a public character for benefit of all citizens of community. The term includes firemen
and policemen. Miller v. City of Albany, 158 Misc.
720, 287 N.Y.S. 889, 891.
GOVERNMENTAL BODY. See Governmental
Agency.
GOVERNMENTAL CAPACITY. In its "governmental capacity," a municipality acts mainly as
an arm of the state for convenient administration of government in incorporated territory, for
public good on behalf of the state rather than
for itself. Public Service Co. of Oklahoma v.
City of Tulsa, 174 Okl. 58, 50 P.2d 166, 168; Oklahoma Natural Gas Corporation v. City of Enid, 179
Okl. 283, 65 P.2d 440, 442.
GOVERNMENTAL CHARACTER. See Governmental Capacity.
GOVERNMENTAL DUTIES. Those duties of a
municipality have reference to some part or ele-
825
GOVERNMENTAL
rnent of the state's sovereignty granted it to be exercised for the benefit of the public, and all other
duties are "proprietary". City of Miami v. Oates,
152 Fla. 21, 10 So.2d 721, 723.
Those duties that the framers of the Constitution intended each member of the union of states
would assume in order adequately to function under the form of government guaranteed by the
Constitution. First State Bank of Gainesville v.
Thomas, D.C.Tex., 38 F.Supp. 849, 851.
sion, 171 Okl. 140, 41 P.2d 918; liquor control
commission, Pacific Fruit & Produce Co. v. Oregon
Liquor Control Commission, D.C.Or., 41 F.Supp.
175, 179.
GOVERNMENTAL ENTERPRISE. A project or
undertaking by the government of a more or less
permanent nature, such as a drainage district.
Rorick v. United States Sugar Corporation, C.C.A.
Fla., 120 F.2d 418, 421.
Powers exercised by city as agency of state.
State ex rel. Gebhardt v. City Council of Helena,
102 Mont. 27, 55 P.2d 671, 673.
GOVERNMENTAL EXPENDITURE OR EXPENSE. One made in preserving health, good
order, and peace of community (Const. art. 8, §
10). Town of Amherst v. Erie County, 236 App.
Div. 58, 258 N.Y.S. 76, 81; keeping and dieting of
prisone-s and taking care of jail, Breathitt County v. Cockrell, 250 Ky. 743, 63 S.W.2d 920, 92 A.L.
R. 626.
GOVERNMENTAL FACILITY. A building or institution provided by the government to care for
a specified need, such as a court house or county
jail. Haney . v. Town of Rainelle, 125 W.Va. 397,
25 S.E.2d 207, 211.
GOVERNMENTAL FUNCTION. Duties imposed
by state on municipal corporation, which latter
must perform at peril. Seafeldt v. Port of Astoria, 141 Or. 418, 16 P.2d 943, 945. Where duty
involves general public benefit not in nature of
corporate or business undertaking for corporate
benefit and interest of municipality, function is
"governmental," whether duty be directly imposed
or voluntarily assumed. Gebhardt v. Village of
La Grange Park, 354 Ill. 234, 188 N.E. 372, 374.
Those conferred upon municipality as local agency
of prescribed and limited jurisdiction to be employed in administering the affairs of the state
and promoting the public welfare generally. State
ex rel. Gebhardt v. City Council of Helena, 102
Mont. 27, 55 P.2d 671, 673, 675.
GOVERNMENTAL IMMUNITY. A doctrine of
implied limitation of the power of the federal
government to tax a state or any of its instrumentalities, and of power of state to tax federal government or any of its instrumentalities, and is
applicable only to taxing relations of federal and
state governments, and does not apply to state and
municipalities therein. Marson v. City of Philadelphia, 342 Pa. 369, 21 A.2d 228, 229, 230. See, also,
Sovereign Immunity of State from Liability.
GOVERNMENTAL INSTRUMENTALITY. Any
agency constitutionally created by Congress. Unemployment Compensation Commission of North
Carolina v. Wachovia Bank & Trust Co., 215 N.C.
491, 2 S.E.2d 592, 595, 596; Home Owners' Loan
Corporation v. Hardie & Caudle, 171 Tenn. 43, 100
S.W.2d 238, 239, 108 A.L.R. 702; Indian oil lease,
Barnsdall Refineries v. Oklahoma Tax Commis-
GOVERNMENTAL POWERS. Those pertaining
to making and enforcing by a city of police regulations to prevent crime, preserve public health,
prevent fires, care for the poor, and educate the
young. Huffman v. City of Columbus, Ohio App.,
51 N.E.2d 410, 412.
GOVERNMENTAL PURPOSE. One which has
for its objective the promotion of the public health,
safety, morals, general welfare, security, prosperity and contentment of the inhabitants of a
given political division. Green v. Frazier, 44 N.D.
395, 176 N.W. 11, 17.
It has been held that, if an electric plant is used by a city
for furnishing light and power for its own use and the
use of its inhabitants, it is a "governmental purpose".
Chadwick v. City of Crawfordsville, 216 Ind. 399, 24 N.E.2d
937, 941, 129 A.L.R. 469; State v. Lincoln County Power
Dist. No. 1, 60 Nev. 401, 111 P.2d 528, 531.
A lot purchased for jail but actually used to store cordwood used in county buildings and to store county road
machinery, was prima facie used for "governmental purposes". Security State Bank v. Dent County, 345 Mo. 1050,
137 S.W.2d 960, 964.
Some courts distinguish between public purpose
and governmental purpose. Spalding v. United
States, D.C.Cal., 17 F.Supp. 957, 961.
GOVERNMENTAL SUBDIVISION. An agency
created to carry out a governmental purpose or
function. It has been held to include a public
corporation authorized to use waters of natural
stream for irrigation and for development of electric power, Platte Valley Public Power and Irrigation Dist. v. Lincoln County, 144 Neb. 584, 14
N.W.2d 202, 206, 155 A.L.R. 412; and a housing authority, Lennox v. Housing Authority of City of
Omaha, 137 Neb. 582, 290 N.W. 451, 459; but not
to include the Mortgage Commission Service Corporation, In re Batter, 257 App.Div. 546, 14 N.Y.S.
2d 42, 44; or a receiver operating for the account
of the United States. The Southern Cross, C.C.A.
N.Y., 120 F.2d 466, 468.
GOVERNOR. The chief executive official of a
state in the United States, State ex rel. Martin v.
Heil, 242 Wis. 41, 7 N.W.2d 375, 380; and territories of the United States; and also of the chief
magistrate of some colonies, provinces, and dependencies of other nations.
GRABBOTS. Oilmill motes, composed of small
particles of refuse cotton, detached from, but left
with, the seed in the first ginning process and
generally separated and recovered by a process of
reginning. Chicago, R. I. & P. Ry. Co. v. Cleveland, 61 Okl. 64, 160 P. 328, 330.
GRACE. A favor or indulgence as distinguished
from a right. State v. Boston, Iowa, 234 Iowa
1047, 14 N.W.2d 676, 679. Thus, in St. 22 Edw. III.,
the lord chancellor was instructed to take cogniz-
826
GRAMMAR
ance of matters of grace, being such subjects of
equity jurisdiction as were exclusively matters of
equity. Brown.
A faculty, license, or dispensation; also general
and free pardon by act of parliament. See Act of
Grace.
For Of Grace, see that title.
GRACE, DAYS OF. Time of indulgence granted
to an acceptor or maker for the payment of his
bill of exchange or note. It was originally a gratuitous favor, (hence the name,) but custom has
rendered it a legal right.
GRACE PERIOD. In Insurance Law. A period
beyond the due date of premium during which
insurance is continued in force and during which
payment may be made to keep policy in good
standing. The grace period for payment of premium does not contemplate free insurance or operate to continue the policy in force after it expires
by agreement of the parties. Miller v. Travelers
Ins. Co., 143 Pa.Super. 270, 17 A.2d 907, 909.
GRADATE I. In old English law, by degrees or
steps; step by step; from one degree to another.
Bract. fol. 64.
GRADE, v. To establish a level by mathematical
points and lines, and then to bring the surface
of the street or highway to the level by the elevation or depression of the natural surface to the
line fixed. Gas & Electric Securities Co. v. Manhattan & Queens Traction Corporation, C.C.A.N.Y.,
266 F. 625, 639; Louisville & N. R. Co. v. State,
137 Tenn. 341, 193 S.W. 113; Giles v. City of Olympia, 115 Wash. 428, 197 P. 631, 633, 16 A.L.R. 493.
To bring property to the level of an abutting highway. Nassau County v. O'Connell, Sup., 37 N.Y.S.
2d 1009, 1012.
GRADE, n. Used in reference to streets: (1)
The line of the street's inclination from the horizontal; (2) a part of a street inclined from the
horizontal. Cent. Dict. The hypothetical line to
which the work is to be constructed. Musto-Keenan Co. v. City of Los Angeles, 139 Cal.App. 506,
34 P.2d 506, 509. The street wrought to the line;
Little Rock v. Ry. Co., 56 Ark. 28, 19 S.W. 17;
Austin v. Tillamook City, 121 Or. 385, 254 P. 819,
824.
"Grades of crime" in legal parlance are understood as higher or lower in grade or degree, according to the measure of punishment attached
and meted out on conviction and the consequences
resulting to the party convicted. State v. Doucet,
202 La. 1074, 13 So.2d 353, 361.
Quality, value, relative position, rank, status,
or standing. Mossman v. Chicago & Southern Air
Lines, 236 Mo.App. 282, 153 S.W.2d 799, 801, 802.
GRADE CROSSING. A place where a railroad is
crossed at grade by a public or private road, or
by another railroad, or where one highway crosses another. Armour & Co. v. New York, N. H. &
H. R. Co., 41 R.I. 361, 103 A. 1031, 1033.
GRADED OFFENSE. One for which offender is
subject to a more severe penalty for a higher
grade than for a lower grade of offense according
to terms of statute. State v. Doucet, 202 La. 1074,
13 So.2d 353, 361.
GRADUATE. One who has taken a degree in a
college or university. State v. Ins. Co., 40 La.
Ann. 463, 4 So. 504; Valentine v. Independent
School District of Casey, 191 Iowa 1100, 183 N.W.
434, 437.
GRADUS. In the civil and old English law, a
measure of space. A degree of relationship.
A step or degree generally; e. g., gradus honorum, degrees of honor. Vicat. A pulpit; a year;
a generation. Du Cange.
A port; any place where a vessel can be brought
to land. Du Cange.
GRADUS PARENTELAE. A pedigree; a table of
relationship.
GRAFFARIUS. In old English law, a graffer,
notary, or scrivener. St. 5 Hen. VIII. c. L
GRAFFER. A notary or scrivener. See St. 5 Hen.
VIII, c. 1. The word is a corruption of the French
"greffier," (q. v.)
GRAFFIUM. A writing-book, register, or cartulary of deeds and evidences. Cowell.
GRAFIO. A baron, inferior to a count. A fiscal
judge. An advocate. Spelman; Cowell.
GRAFT. The popular meaning is the fraudulent
obtaining of public money unlawfully by the corruption of public officers. Smith v. Pure Oil Co.,
278 Ky. 430, 128 S.W.2d 931, 933.
A term used in equity to denote the confirmation, by relation back, of the right of a mortgagee
in premises to which, at the making of the mortgage, the mortgagor had only an imperfect title,
but to which the latter has since acquired a good
title.
Advantage or personal gain received because of peculiar
position or superior influence of one holding position of
trust and confidence without rendering compensatory services, or dishonest transaction in relation to public or official
acts, and sometimes implies theft, corruption, dishonesty,
fraud, or swindle, and always want of integrity. Mount v.
Welsh, 118 Or. 568, 247 P. 815, 822; Cooper v. Romney, 49
Mont. 119, 141 P. 289, 291; Gill v. Ruggles, 95 S.C. 90, 78
S.E. 536, 540.
GRAIN. In Troy weight, the twenty-fourth part
of a pennyweight. Any kind of corn sown in the
ground.
GRAIN RENT. A payment for the use of land
in grain or other crops; the return to the landlord paid by croppers or persons working the land
on shares. Railroad Co. v. Bates, 40 Neb. 381, 58
N.W. 963.
GRAINAGE. An ancient duty in London under
which the twentieth part of salt imported by aliens
was taken.
GRAMMAR SCHOOL. In England, this term designates a school in which such instruction is giv-
827
GRAMMATICA
hence, figuratively, an act done to draw applause.
Webster, Diet.
en as will prepare the student to enter a college
or university, and in this sense the phrase was
used in the Massachusetts colonial act of 1647,
requiring every town containing a hundred householders to set up a "grammar school." Jenkins v.
Andover, 103 Mass. 97. But in modern American
usage the term denotes a school, intermediate between the primary school and the high school, in
which English grammar and other studies of that
grade are taught.
GRANDCHILD.
Generally, child of one's child.
Rieck v. Richards, 40 Ohio App. 201, 178 N.E. 276,
278. Descendant of second degree. Spencer v.
Title Guarantee Loan & Trust Co., 222 Ala. 221,
132 So. 32, 34. The word may, however, be enlarged by context. Ball v. Weightman, 273 Pa.
120, 116 A. 653, 654; Davidson v. Blackwell, 152
Ga. 48, 108 S.E. 469, 471; Splitdoff Electrical Co.
v. King, 90 N.J.Law, 421, 103 A. 674.
GRAMMATICA FALSA NON VITIAT CHARTAM. 9 Coke, 48. False grammar does not vitiate a deed.
GRANDFATHER.
GRAMMATOPHYLACIUM. (Grieco-Lat.) In the
civil law, a place for keeping writings or records.
Dig. 48, 19, 9, 6.
GRANDFATHER CLAUSE.
GRAMME. The unit of weight in the metric system. The gramme is the weight of a cubic centimeter of distilled water at the temperature of 4°
C. It is equal to 15.4341 grains troy, or 5.6481
drachms avoirdupois.
GRANATARIUS. In old English law, an officer
having charge of a granary. Fleta, lib. 2, c. 82,
§ 1; Id. c. 84.
GRAND, n. In cant of gangsters, thieves, and
underworld, one thousand dollars.
As to grand "Assize," "Bill of Sale," "Cape,"
"Distress," "Jury," "Larceny," and "Serjeanty,"
cee those titles.
GRAND COUTUMIER. A collection of customs,
laws, and forms of procedure in use in early times
in France. See Coutumier.
GRAND DAYS. In English practice, certain days
in the terms, which are solemnly kept in the inns
of court and chancery, viz., Candlemas day in
Hilary term, Ascension day in Easter, St. John
the Baptist day in Trinity, and All Saints in
Michaelmas; which are dies non juridici. Termes
de la Ley; Cowell; Blount. They are days set
apart for peculiar festivity; the members of the
respective inns being on such occasions regaled
at their dinner in the hall, with more than usual
sumptuousness. Holthouse.
GRAND REMONSTRANCE. A constitutional
document passed by the British House of Commons in November, 1641.
It was in the nature of an appeal to the country, setting
forth political grievances. It consisted of a preamble of 20
clauses and the body of the remonstrance with 206 clauses,
each of which was voted separately. Its first remedial
measure was against papists; its second demanded that all
illegal grievances and exactions should be presented and
punished at the sessions and assizes and that judgds and
justices should be sworn to the due execution of the Petition of Rights and other laws. The third was a series of
precautions to prevent the employment of evil councillors.
See Taswell-Langmead, Engl.Const.Hist. 464; Forsher,
Grand Remonstrance. The text will be found in History
for Ready Reference, II, 833.
GRAND-STAND PLAY.
In baseball, etc., a play
made more showily than necessary in order to
draw the applause of those in the grand stand;
The father of either of one's
parents.
A clause introduced
into several of the constitutions of the southern
states, limiting the right to vote to those who can
read and write any article of the constitution of
the United States, and have worked or been regularly employed in some lawful employment for
the greater part of the year next preceding the
time they offer to register unless prevented from
labor or ability to read or write by physical disability, or who own property assessed at three
hundred dollars upon which the taxes have been
paid; but excepting those who have served in the
army or navy of the United States or in the Confederate States in time of war, their lawful descendants in every degree, and persons of good
character who understand the duties and obligations of citizenship under a republican form of
government.
One of the original purposes of the "grandfather" clause of the Motor Carrier Act was to permit the operation of carrier businesses already
established. Transamerican Freight Lines v.
United States, D.C.Del., 51 F.Supp. 405, 409.
GRANDMOTHER. The mother of either of one's
parents.
GRANGE. A farm furnished with barns, granaries, stables, and all conveniences for husbandry. Co. Litt. 5a.
GRANGEARIUS. A keeper of a grange or farm.
GRANGER CASES. A name applied to six cases
decided by the supreme court of the United States
in 1876, which are reported in Munn v. Illinois, 94
U.S. 113, 24 L.Ed. 77; Chicago, B. & Q. R. Co. v.
Iowa, 94 U.S. 155, 24 L.Ed. 94; Peik v. Ry. Co., 94
U.S. 165, 24 L.Ed. 97; Chicago, M. & St. P. R. Co.
v. Ackley, 94 U.S. 179, 24 L.Ed. 99; Winona &
St. Peter R. Co. v. Blake, 94 U.S. 180, 24 L.Ed. 99;
those most frequently cited being Munn v. Illinois,
and C., B. & Q. R. Co. v. Iowa. They are so called
because they arose out of an agitation commenced
by the grangers which resulted in the enactment
of statutes for the regulation of the tolls and
charges of common carriers, warehousemen, and
the proprietors of elevators.
The enforcement of these acts was resisted and their constitutionality questioned. The supreme court affirmed the
common-law doctrine that private property appropriated by
the owner to a public use is thereby subjected to public
regulation. They also held that the right of regulation was
not restrained by the prohibition of the fourteenth amend-
828
GRATIS
and a covenant for quiet enjoyment; Stott v.
Rutherford, 92 U.S. 107, 23 L.Ed. 486.
ment of the federal constitution against the taking by the
states of private property without due process of law. A
text writer, who was at that time a member of the court,
says of these cases: "But these decisions left undecided
the question how far this legislative power of regulation
belonged to the States, and how far it was in the congress
of the United States"; Miller, Const.U.S. 397.
GRANGIA. A grange. Co. Litt. 5a.
GRANT. To bestow; to confer, Traylor v. State,
117 Tex.Cr.R. 323, 36 S.W.2d 506, 507; upon some
one other than the person or entity which makes
the grant. Porto Rico Ry., Light & Power Co.
v. Colom, C.C.A.Puerto Rico, 106 F.2d 345, 354.
Deed. Walker v. Deppe, 346 Mo. 354, 141 S.W.
2d 783, 785. A conveyance. Dearing v. Brush
Creek Coal Co., 182 Tenn. 302, 186 S.W.2d 329,
331. Transfer of property real or personal by
deed or writing. Commissioner of Internal Revenue v. Plestcheeff, C.C.A.9, 100 F.2d 62, 64, 65.
A generic term applicable to all transfers of
real property, 3 Washb. Real Prop. 181, 353; including transfers by operation of law as well as
voluntary transfers. White v. Rosenthal, 140 Cal.
App. 184, 35 P.2d 154,1.55.
A transfer by deed of that which cannot be
passed by livery. Williams, Real Prop. 147, 149;
Jordan v. Indianapolis Water Co., 159 Ind. 337,
64 N.E. 680.
An act evidenced by letters patent under the
great seal, granting something from the king to
a subject. Cruise, Dig. tit. 33, 34; Downs v. United States, C.C.A.Md., 113 F. 147, 51 C.C.A. 100.
GRANT AND TO FREIGHT LET. Operative
words in a charter party, implying the placing
of the vessel at the disposition of the charterer
for the purposes of the intended voyage, and gen.
erally, transferring the possession. See Christie
v. Lewis, 2 Brod. & B. 441.
GRANT, BARGAIN, AND SELL. Operative
words in conveyances of real estate. Muller v.
Boggs, 25 Cal. 187; Hawk v. McCullough, 21 Ill.
221.
GRANT OF PERSONAL PROPERTY.
A method
of transferring personal property, distinguished
from a gift by being always founded on some consideration or equivalent. 2 Bl. Comm. 440, 441.
Its proper legal designation is an "assignment,"
or "bargain and sale." 2 Steph. Comm. 102.
GRANT TO USES. The common grant with uses
superadded, which has become the favorite mode
of transferring realty in England. Wharton.
GRANTEE. One to whom a grant is made. Commissioner of Internal Revenue v. Plestcheeff, C.C.
A.9, 100 F.2d 62, 65.
GRANTOR.
The person by whom a grant is
made.
GRANTOR'S LIEN.
A technical term made use of in deeds of conveyance of lands to import a transfer. 3 Washb.
Real Prop. 378-380.
As distinguished from a mere license, a grant passes
some estate or interest, corporeal or incorporeal, in the
lands which it embraces. Jamieson v. Millemann, 3 Duer,
N.Y., 255, 258.
The term "grant," in Scotland, is used in reference (1)
to original dispositions of land, as when a lord makes
grants of land among tenants; (2) to gratuitous deeds.
Paterson. In such case, the superior or donor is said to
grant the deed; an expression totally unknown in English
law. Mozley & Whitley.
By the word "grant," in a treaty, is meant not only a
formal grant, but any concession, warrant, order, or permission to survey, possess, or settle, whether written or
parol, express, or presumed from possession. Such a grant
may be made by law, as well as by a patent pursuant to a
law. Strother v. Lucas, 12 Pet. 436, 9 L. Ed. 1137; Bryan
v. Kennett, 113 U.S. 179, 5 S.Ct. 413, 28 L.Ed. 908; Hastings v. Turnpike Co., 9 Pick., Mass., 80; Dudley v. Sumner, 5 Mass. 470.
For office grant, see Office.
Private land grant. A grant by a public authority vesting title to public land in a private (natural) person. United Land Ass'n v. Knight, 85
Cal. 448, 24 P. 818.
Public grant. A grant from the public; a grant
of a power, license, privilege, or property, from,
the state or government to one or more individuals, contained in or shown by a record, conveyance, patent, charter, etc.
GRANT AND DEMISE. In a lease for years
these words create an implied warranty of title
Lien which exists for payment of purchase money when title is transferred.
Kosters v. Hoover, 69 App.D.C. 66, 98 F.2d 595,
596.
GRANTZ. In
old English law, noblemen or gran-
dees. Jacob.
GRASS HEARTH.
In old records, the grazing
or turning up the earth with a plow. The name
of a customary service for inferior tenants to
bring their plows, and do one day's work for their
lords. Cowell.
GRASS WEEK.
Rogation week, so called anciently in the inns of court and chancery.
GRASS WIDOW. A slang term for a woman separated from her husband by abandonment or prolonged absence; a woman living apart from her
husband. Webster. A divorcee.
GRASSON, or GRASSUM. A fine paid upon the
transfer of a copyhold estate. See Gressume.
GRATIFICATION. A gratuity; a recompense or
reward for services or benefits, given voluntarily,
without solicitation or promise.
GRATIS.
Without reward or consideration.
Highway Department of Georgia v. Bass, 197 Ga.
356, 29 S.E.2d 161, 169. Freely; gratuitously.
GRATIS DICTUM. A voluntary assertion; a
statement which a party is not legally bound to
make, or in which he is not held to precise accuracy. 2 Kent, Comm. 486; Medbury v. Watson, 6
Metc., Mass., 260, 39 Am.Dec. 726.
829
GRATUITOUS
GRATUITOUS. Without valuable or legal consideration. A term applied to deeds. of conveyance
and to bailments and other contracts.
In old English law, voluntary; without force,
fear, or favor. Bract. fols. 11, 17.
As to gratuitous "Bailment," "Contract," and
"Deposit," see those titles.
GRATUITOUS ALLOWANCE. A pension. Moran v. Firemen's and Policemen's Pension Fund
Commission of Jersey City, 20 N.J.Misc. 479, 28 A.
2d 885, 887. State ex rel. Parker v. Board of Education of City of Topeka, 155 Kan. 754, 129 P.2d
265, 267.
GRATUITOUS GUEST. In automobile law. A
person riding at invitation of owner or authorized
agent without payment of a consideration or fare.
McLain v. Atlantic Ice & Coal Corporation, 54 Ga.
App. 103, 187 S.E. 153; Hart v. Hogan, 173 Wash.
598, 24 P.2d 99; Blashfield, Cyc. of Automobile
Law and Prac., Perm. Ed., § 2292.
GRATUITOUS LICENSEE. Any licensee other
than a business visitor. Smith v. Southwest Missouri R. Co., 333 Mo. 314, 62 S.W.2d 761.
GRATUITOUS PASSENGER. See Gratuitous
Guest.
GRATUITY. Something acquired without bargain or inducement. State ex rel. Stafford v. FoxGreat Falls Theatre Corporation, 114 Mont. 52, 132
P.2d 689, 697. Something given freely or without
recompense; a gift; something voluntarily given
in return for a favor or especially a service, hence,
a bounty; a tip; a bribe. McCook v. Long, 193 Ga.
299, 18 S.E.2d 488, 490.
GRAVA. In old English law, a grove; a small
wood; a coppice or thicket. Co. Litt. 4b.
A thick wood of high trees. Blount.
GRAVAMEN. The material part of a grievance,
.charge, etc. Williamson v. Pacific Greyhound
Lines, 67 Cal.App.2d 250, 153 P.2d 990, 991. The
burden or gist of a charge; the grievance or injury specially complained of.
In English Ecclesiastical law, a grievance complained of by the clergy before the bishops in convocation.
GRAVATIO. In old English law,
an
accusation
GRAVEN DOCK. A "graven dock" is distinguished from a "floating dock," in that it is permanently
attached to, and in that manner is, a part of land.
Butler v. Robins Dry Dock & Repair Co., 240 N.Y.
23, 147 N.E. 235; Manufacturers' Liability Ins. Co.
v. Hamilton, 129 Misc. 665, 222 N.Y.S. 394.
GRAVEYARD. A cemetery; a place for the interment of dead bodies; sometimes defined in
statutes as a place where a minimum number of
persons (as "six or more") are buried. See Stockton v. Weber, 98 Cal. 433, 33 P. 332; Gray v. Craig,
103 Kan. 100, 172 P. 1004, 1005.
GRAVEYARD INSURANCE. A term applied to
insurances fraudulently obtained (as, by false
personation or other means) on the lives of infants, very aged persons, or those in the last stages of disease. Also occasionally applied to an insurance company which writes wager policies,
takes extra-hazardous risks, or otherwise exceeds
the limits of prudent and legitimate business. See
McCarty's Appeal, 110 Pa. 379, 4 A. 925.
GRAVIS. Grievous; great. Ad grave damnum,
to the grievous damage. 11 Coke, 40.
GRAVIUS. A graf ; a chief magistrate or officer.
A term derived from the more ancient "grafio,"
and used in combination with various other words,
as an official title in Germany; as Margravius,
Rheingravius, Landgravius, etc. Spelman.
GRAVIUS EST DIVINAM QUAM TEMPORALEM
LAEDERE MAJESTATEM. It is more serious to
hurt divine than temporal majesty. 11 Coke, 29.
GRAY'S INN. An inn of court. See Inns of Court.
GREAT. Considerable in magnitude, power, intensity or degree. Thompson v. Anderson, 107
Utah 331, 153 P.2d 665, 666. As 'used in various
compound legal terms, this word generally means
extraordinary, that is, exceeding the common or
ordinary measure or standard, in respect to physical size, or importance, dignity, etc. Gulf, etc., R.
Co. v. Smith, 87 Tex. 348, 28 S.W. 520; San Christina Inv. Co. v. City and County of San Francisco,
167 Cal. 762, 141 P. 384, 388, 52 L.R.A.,N.S., 676;
American Express Co. v. Terry, 126' Md. 254, 94 A.
1026, 1030, Ann.Cas.1917C, 650.
For presumption great, see Proof.
As to great "Care," "Ponds," "Seal," "Tithes,"
see those titles.
All manner of beasts except
sheep and yearlings. 2 Rolle, 173.
or impeachment. Leg. Ethel. c. 19.
GREAT CATTLE.
GRAVE. An excavation in earth in which a dead
body is or is to be buried, or place for interment
of a corpse, such as a tomb, or a sepulcher. Leaphart v. Harmon, 186 S.C. 362, 195 S.E. 628, 629.
GREAT CHARTER. Magna Charta (q. v.).
GREAT—GRANDCHILDREN. Children of one's
GRAVEL. Small stones, or fragments of stone
often intermixed with particles of sand. Fellows
v. Dorsey, 171 Mo.App. 289, 157 S.W. 995, 1000.
GRAVEL PIT. An excavation from which gravel
is removed. Walker v. Dwelle, 187 Iowa 1384, 175
N.W. 957, 964.
grandchildren. Jenkins v. Harris, 135 Miss. 457,
100 So. 280.
GREAT LAW, THE, or "The Body of Laws of the
Province of Pennsylvania and Territories thereunto belonging, Past at an Assembly held at
Chester alias Upland, the 7th day of the tenth
month, called 'December,' 1682." This was the
first code of laws established in Pennsylvania, and
830
GROCER
is justly celebrated for the provision in its first
chapter for liberty of conscience.
be in gremio legis; that is, in the protection or
keeping of the law.
GREAT TITHES. In ecclesiastical law, the more
valuable tithes: as, corn, hay, and wood. 3 Burn,
Eccl. Law, 680, 681; 3 Steph. Comm. 127. See
Tithes.
GRENVILLE ACT. The statute 10 Geo. III. c..
16, by which the jurisdiction over parliamentary
election petitions was transferred from the whole
house of commons to select committees. Repealed by 9 Geo. IV. c. 22, § 1.
GREAT WRIT OF LIBERTY. The writ of "habeas corpus and subjiciendum", issuing at common law out of courts of Chancery, King's Bench,
Common Pleas, and Exchequer. Ex parte Kelly,
123 N.J.Eq. 489, 198 A. 203, 207.
GRESSUME. In English law, a customary fine
due from a copyhold tenant on the death of the
lord. 1 Strange, 654; 1 Crabb, Real Prop. p. 615,
§ 778. Spelled also "grassum," "grossome," and.
"gressame."
GREE. Satisfaction for an offense committed or
injury done. Cowell.
In Scotland grassum is a fine paid for the making or renewing of a lease. Paterson.
GREEK CROSS. See Cross.
GRETNA GREEN MARRIAGE. A marriage cel-
GREEK KALENDS. A colloquial expression to
signify a time indefinitely remote, there being no
such division of time known to the Greeks.
ebrated at Gretna, in Dumfries, (bordering on the
county of Cumberland,) in Scotland.
By the law of Scotland a valid marriage may be con
by consent alone, without any other formality.
When the marriage act (26 Geo. II. c. 33) rendered the
publication of banns, or a license, necessary in England, it
became usual for persons who wished to marry clandestinely to go to Gretna Green, the nearest part of Scotland,
and marry according to the Scotch law; so a sort of chapel
was built at Gretna Green, in which the English marriage
service was performed by the village blacksmith. Wharton..
GREEN CLOTH. In English law, a board or
court of justice held in the countinghouse of the
king's (or queen's) household, and composed of
the lord steward and inferior officers. It takes
its name from the green cloth spread over the
board at which it is held. Wharton; Cowell.
GREEN SILVER. A feudal custom in the manor
of Writtel, in Essex, where every tenant whose
front door opens to Greenbury shall pay a halfpenny yearly to the lord, by the name of "green
silver" or "rent." Cowell.
GREEN WAX. In English law, the name of the
estreats in the exchequer, delivered to the sheriff
under the seal of that court which was impressed
upon green wax.
GREENBACK. The popular and almost exclusive
name applied to all United States treasury issues.
Hickey v. State, 23 Ind. 23; U. S. v. Howell, D.C.
Cal., 64 F. 114.
GREENHEW. In forest law, the same as vent (q.
v. ) . Termes de la Ley.
GREFFIERS. In French law, registrars, or clerks
of the courts.
They are officials attached to the courts to assist the
judges in their duties. They keep the minutes, write out
the judgments, orders, and other decisions given by the
tribunals, and deliver copies thereof to applicants.
GREGORIAN CODE. The code or collection of
constitutions made by the Roman jurist Gregorius. See Codex Gregorianus.
GREGORIAN EPOCH. The time from which the
Gregorian calendar or computation dates; i. e.,
from the year 1582.
GREMIO. In Spanish law, a guild; an association of workmen, artificers, or merchants following the same trade or business; designed to protect and further the interests of their craft.
GREMIUM. Lat. The bosom or breast; hence,
derivatively, safeguard or protection. In English law, an estate which is in abeyance is said to
GREVA. In old records, the sea shore, sand, or
beach. 2 Mon. Angl. 625; Cowell.
GREVE. A word of power or authority. Cowell.
GRIEVANCE. An injury, injustice or wrong
which gives ground for complaint because it is
unjust and oppressive. In re Borough of North.
Braddock, 126 Pa.Super. 53, 190 A. 357, 361.
GRIEVED. Aggrieved. 3 East, 22.
GRIEVOUS. Causing grief or sorrow, painful,.
afflictive, hard to bear, offensive, harmful. State
v. Bowers, 178 Minn. 589, 228 N.W. 164, 165.
GRIFF. A word said to have a definite meaning
in Louisiana, indicating the offspring of a Negro,
and a mulatto; a person too black to be a mulatto
and too pale in color to be readily identified as a
Negro. State v. Treadaway, 52 So. 500, 508, 126
La. 300, 139 Am.St.Rep. 514, 20 Ann.Cas. 1297.
Also spelled griffe, and applied to a person of
mixed Negro and American Indian blood. Webster, New Int. Dict.
GRITH. In Saxon law, peace; protection:
GRITHBRECH, or GRITHBRECHE. Breacn of
the peace. Cowell.
GRITHSTOLE. A place of sanctuary. Cowell.
GROAT. An English silver coin (value four.
pence) issued from the fourteenth to the seventeenth century. See Reg. v. Connell, 1 Car. & K.
191.
GROCER. In old English law, a merchant ortrader who engrossed all vendible merchandise;
an engrosser. St. 37 Edw. III. c. 5. See Engrosser.
831
GROG-SHOP
GROG–SHOP. A liquor saloon, barroom, or
dram-shop; a place where intoxicating liquor is
sold to be drunk on the premises. See Leesburg
v. Putnam, 103 Ga. 110, 29 S.E. 602.
GROSSE AVENTURE. Fr. In French marine
law, the contract of bottomry. Ord. Mar. liv. 3, tit.
5.
GRONNA. In old records, a deep hollow or pit;
a bog or miry place. Cowell.
GROSSEMENT. L. Fr. Largely, greatly.
Grossement enseint, big with child. Plowd. 76.
GROOM OF THE STOLE. In England, an officer
of the royal household, who has charge of the
king's wardrobe.
GROSSOME. In old English law, a fine, or sum
of money paid for a lease. Plowd. 270, 271. Supposed to be a corruption of gersuma (q. v.). See
Gressume.
GROOM PORTER. Formerly an officer belonging
to the royal household. Jacob.
GROSS. Great; culpable. General. Absolute.
A thing in gross exists in its own right, and not
as an appendage to another thing. Before or
without diminution or deduction. Standard Chemical Co. v. Curtis, 77 Colo. 10, 233 P. 1112, 1113;
Smith v. Toth, 61 Ind.App. 42, 111 N.E. 442, 444;
Klafter v. State Board of Examiners of Architects,
259 Ill. 15, 102 N.E. 193, 195, 46 L.R.A.,N.S., 532,
Ann.Cas.1914B, 1221. Whole; entire; total; as
the gross sum, amount, weight—opposed to net.
State v. Hallenberg-Wagner Motor Co., 341 Mo.
771, 108 S.W.2d 398, 401.
Out of all measure; beyond allowance; not to
be excused; flagrant; shameful; as a gross dereliction of duty; a gross injustice; gross carelessness. State Board of Dental Examiners v. Savelle, 90 Colo. 177, 8 P.2d 693, 697.
As to gross "Adventure," "Average," "Earnings," "Fault," "Negligence," and "Weight," see
those titles.
GROSSE BOIS. Timber. Cowell.
GROUND. Soil; earth; the earth's surface appropriated to private use and under cultivation
or susceptible of cultivation.
Though this term is sometimes used as equivalent to
"land," it is properly of a more limited signification,
because it applies strictly only to the surface, and always
means dry land. See Wood v. Carter, 70 Ill App. 218; State
v. Jersey City, 25 N.J.L. 529; Corn. v. Roxbury, 9 Gray,
Mass., 491.
A foundation or basis; points relied on. People v. Wilkins, 67 Cal.App. 758, 228 P. 367; People v. Preciado, 31 Cal.App. 519, 160 P. 1090, 1091;
In re Egan, 36 S.D. 228, 154 N.W. 521, 522.
GROUND ANNUAL. In Scotch law, an annual
rent of two kinds: First, the feu duties payable
to the lords of erection and their successors;
second, the rents reserved for building lots in a
city, where sub-feus are prohibited. This rent
is in the nature of a perpetual annuity. Bell;
Ersk. Inst. 11, 3, 52.
GROUND LANDLORD. The grantor of an estate on which a ground-rent is reserved.
GROUND OF ACTION. The basis of a suit; the
foundation or fundamental state of facts on which
an action rests; the real object of the plaintiff in
bringing his suit. Nash v. Adams, 24 Conn. 39;
Appeal of Huntington, 73 Conn. 582, 48 A. 766.
GROSS INADEQUACY. In compensation cases.
Compensation so unreasonably small as to shock
sense of justice and evince lack of fair and intelligent consideration. Albertsen v. Swift & Co.,
117 Kan. 337, 230 P. 1057, 1058.
GROSS INCOME. The term may mean the
"gross receipts" of a business before deduction or
expenditures for any purpose being equivalent to
"gross proceeds" or "gross receipts" as distinguished from "net income," which is that portion
of the receipts which remain after paying wages
and paying for materials, or, in the narrower
sense, profits over and above interest on capital
invested. First Trust Co. of St. Paul v. Commonwealth Co., C.C.A.S.D., 98 F.2d 27, 31, 32.
GROSS PREMIUM. Net premium plus loading
for expenses and contingencies; e., the net
premium represents the cost of insurance. Fox
v. Mutual Ben. Life Ins. Co., C.C.A.Mo., 107 F.2d
715, 719.
GROSS PROFIT. Excess of price received over
price paid for goods before deductions are made
for cost of operation. Hill v. City of Richmond,
181 Va. 744, 26 S.E.2d 48, .54.
GROSS WEIGHT. The total weight of goods or
merchandise, with the chests, bags, and the like,
from which are to be deducted tare and tret.
GROUND RENT. A perpetual rent reserved to
himself and his heirs, by the grantor of land in
fee-simple, out of the land conveyed. It is in
the nature of an emphyteutic rent. Also, in English law, rent paid on a building lease. Hart v.
Anderson, 48 A. 636, 198 Pa. 558; Sturgeon v. Ely,
6 Pa. 406; Franciscus v. Reigart, 4 Watts., Pa.,
116.
GROUND WRIT. Prior to the English commonlaw procedure act, 1852, c. 121 a ca. sa. or fi. fa.
could not be issued into a county different from
that in which the venue in the action was laid,
without first issuing a writ, called a "ground writ,"
into the latter county, and then another writ,
which was called a "testatum writ," into the former. Wharton.
GROUNDAGE. A custom or tribute paid for the
standing of shipping in port. Jacob.
GROUP INSURANCE. A contract of "group insurance" is one between insurer and employer for
benefit of employees. Crawford v. Metropolitan
Life Ins. Co., Mo.App., 167 S.W.2d 915, 924. In its
nature group insurance is similar, if not identical
832
GUARANTY
S.W.2d 193. A promise to answer for payment of
debt or performance of obligation if person liable
in first instance fails to make payment or perform obligation. McGee v. F. W. Poe Mfg. Co.,
176 S.C. 288, 180 S.E. 48, 51, 99 A.L.R. 1468. An
undertaking by one person to be answerable for
the payment of some debt, or the due performance
of some contract or duty, by another person, who
himself remains liable to pay or perform the same.
Story, Prom. Notes, § 457. A promise to answer
for the debt, default, or miscarriage of another
person. Civil Code Cal. § 2787.
with that form of insurance known as term insurance. Watkins v. Metropolitan Life Ins., Co.,
La.App., 174 So. 885, 888.
GROWING CROP. A crop must be considered
and treated as a growing crop from the time the
seed is deposited in the ground, as at that time
the seed loses the qualities of a chattel, and becomes a part of the freehold, and passes with a
sale of it. Wilkinson v. Ketler, 69 Ala. 435.
Things commonly planted, cultivated, and harvested for use or profit of husbandman. Pelham v.
State, 20 Ala.App. 359, 102 So. 462, 463.
A guaranty is a contract that some particular thing shall
be done exactly as it is agreed to be done, whether it is to
be done by one person or another, and whether there be a
prior or principal contractor or not. Redfield v. Haight,
27 Conn. 31.
The definition of a "guaranty," by text-writers, is an
undertaking by one person that another shall perform his
contract or fulfill his obligation, or that, if he does not, the
guarantor will do it for him. A guarantor of a bill or note
is said to be one who engages that ,the note shall be paid,
but is not an indorser or surety. Gridley v. Capen, 72
Ill. 13.
GROWTH HALF-PENNY. A rate paid in some
places for the tithe of every fat beast, ox, or other
unfruitful cattle. Clayt. 92.
GRUARII. The principal officers of a forest.
GRUB STAKE. In mining law, a contract between two parties by which one undertakes to
furnish the necessary provisions, tools, and other
supplies, and the other to prospect for and locate
mineral lands and stake out mining claims thereon, the interest in the property thus acquired inuring to the benefit of both parties, either equally
or in such proportion as their agreement may fix.
Berry v. Woodburn, 107 Cal. 512, 40 P. 804; Hartney v. Gosling, 10 Wyo. 346, 68 P. 1118, 98 Am.St.
Rep. 1005; Mattocks v. Gibbons, 94 Wash. 44, 162
P. 19, 22.
GUADALUPE HIDALGO, TREATY OF. A treaty
between the United States and Mexico, terminating the Mexican War, dated February 2, 1848.
See Gadsden Purchase.
GUADIA. In old European law, a pledge. Spelman; Calvin. A custom. Spelman. Spelled also
"wadia."
GUARANTEE. One to whom a guaranty is made.
Dallas v. Wagner, 204 N.C. 517, 168 S.E. 838, 839.
This word is also used, as a noun, to denote the
contract of guaranty or the obligation of a guarantor, and, as a verb, to denote the action of assuming the responsibilities of a guarantor.
GUARANTEE STOCK. "Guarantee stock" of a
building and loan association is a fixed non-withdrawal investment which guarantees to all other
investors in the association a fixed rate of dividend or interest. Stumph v. Wheat Belt Building
& Loan Ass'n of Pratt, 148 Kan. 25, 79 P.2d 896,
899.
GUARANTIED STOCK. See Stock.
GUARANTOR. He who makes a guaranty. In re
Ford, D.C.Wash., 14 F.2d 848, 849.
GUARANTY, v. To undertake collaterally to
answer for the payment of another's debt or the
performance of another's duty, liability, or obligation; to assume the responsibility of a guarantor;
to warrant. See Guaranty, n.
GUARANTY, n. A collateral agreement for performance of another's undertaking. Kelly-Springfield Tire Co. v. Hamilton, 230 Mo.App. 430, 91
Black's Law Dictionary Revised 4th Ed.-53
Synonyms
The terms guaranty and suretyship are sometimes used
interchangeably; but they should not be confounded. The
contract of a guarantor is his own separate contract. It is
in the nature of a warranty by him that the thing guarantied to be done by the principal shall be done, not merely
an engagement jointly with the principal to do the thing.
The original contract of the principal is not his contract,
and he is not bound to take notice of its non-performance.
Durham v. Manrow, 2 N.Y. 548; Nading v. McGregor, 121
Ind. 465, 23 N.E. 283, 6 L.R.A. 686; Hoosier Brick Co. v.
Floyd County Bank, 64 Ind.App. 445, 116 N.E. 87, 90; W. T.
Rawleigh Co. v. Salter, 31 Ga.App. 329, 120 S.E. 679, 681.
Guaranty and warranty are derived from the same root,
and are in fact etymologically the same word, the "g" of
the Norman French being interchangeable with the English
"w." They are often used colloquially and in commercial
transactions as having the same signification, as where a
piece of machinery or the produce of an estate is "guarantied" for a term of years, "warranted" being the more
appropriate term in such a case. Accumulator Co. v. Dubuque St. R. Co., Iowa, 64 P. 70, 12 C.C.A. 37; Martinez v.
Earnshaw, 36 Wkly.Notes Cas., Pa., 502. A distinction is
also sometimes made in commercial usage, by which the
term "guaranty" is understood as a collateral warranty
(often a conditional one) against some default or event in
the future, while the term "warranty" is taken as meaning
an absolute undertaking in prcesenti, against the defect, or
for the quantity or quality contemplated by the parties in
the subject-matter of the contract. Sturges v. Bank of
Circleville, 11 Ohio St. 169, 78 Am.Dec. 296. But in strict
legal usage the two terms are widely distinguished in this,
that a warranty is an absolute undertaking or liability on
the part of the warrantor, and the contract is void unless
it is strictly and literally performed, while a guaranty is
a promise, entirely collateral to the original contract, and
not imposing any primary liability on the guarantor, but
binding him to be answerable for the failure or default of
another. Masons' Union L. Ins. Ass'n v. Brockman, 20 Ind.
App. 206, 50 N.E. 493.
Absolute guaranty. An unconditional undertaking by a
guarantor that debtor will pay debt or perform the obligation. An unconditional promise of payment or performance of principal contract on default of principal debtor or
obligor. Robey v. Walton Lumber Co., 17 Wash.2d 242, 135
P.2d 95, 102, 145 A.L.R. 924.
Collateral guaranty. A contract by which the guarantor
undertakes, in case the principal fails to do what he has
promised or undertaken to do, to pay damages for such
failure; distinguished from an engagement of suretyship
in this respect, that a surety undertakes to do the very
thing which the principal has promised to do, in case the
latter defaults. Woody v. Haworth, 24 Ind.App. 634, 57
N.E. 272; Nading v. McGregor, 121 Ind. 470, 23 N.E. 283,
6 L.R.A. 686.
833
GUARANTY
Conditional guaranty. One which depends upon some
extraneous event, beyond the mere default of the principal,
and generally upon notice of the guaranty, notice of the
principal's default, and reasonable diligence in exhausting
proper remedies against the principal. Yager v. Title Co.,
112 Ky. 932, 66 S. W. 1027; Tobacco Co. v. Heid, D.C.
Alaska, 62 F. 962; Wall v. Eccles, 61 Utah, 247, 211 P. 702,
703.
Continuing guaranty. One relating to a future liability
of the principal, under successive transactions, which either
continue his liability or from time to time renew it after
it has been satisfied. Sewing Mach. Co. v. Courtney, 141
Cal.
6'74, 75 P. 296; Buck v. Burk, 18 N.Y. 340; German
y
Sa . Bank v. Drake, Iowa, 79 N.W. 121; Glaser, Kohn &
Co. v. U. S., C.C.A./11., 224 F. 84, 86; Hirning v. Jacobsen, 51 S.D. 270, 213 N.W. 505, 507.
Special guaranty. A guaranty which is available only to
the particular person to whom it is offered or addressed;
as distinguished from a general guaranty, which will operate in favor of any person who may accept
it. Everson
y
v. Gere, 40 Hun, N.Y., 250; Tidioute Sa . Bank v. Libbey,
101 Wis. 193, 77 N.W. 182, 70 Am.St.Rep. 907; Jobes v.
Miller, 201 Mo.App. 45, 209 S.W. 549, 550.
Guaranty. company. A corporation authorized to transact the business of entering into contracts of guaranty and
suretyship; as, one which, for fixed premiums, becomes
surety on judicial bonds, fidelity bonds, and the like. See
'Etna L. Ins. Co. v. Coulter, 25 Ky.L.Rep. 193, 74 S.W.
1050.
GUARANTY FUND. Statutes have made provision for depositors' guaranty funds to be raised,
in whole or in part, by assessments on banks and
to be used to pay the depositors of an insolvent
bank. Noble State Bank v. Haskell, 219 U.S. 104,
31 S.Ct. 1.86, 55 L.Ed. 112, 32 L.R.A.,N.S., 1062, Ann.
Cas.1912A, 487; Shallenberger v. Bank, 219 U.S.
114, 31 S.Ct. 189, 55 L.Ed. 117; Assaria State Bank
v. Dolley, 219 U.S. 121, 31 S.Ct. 189, 55 L.Ed. 123;
Abilene Nat. Bank v. Dolley, 228 U.S. 1, 33 S.Ct.
409, 57 L.Ed. 707.
GUARANTY INSURANCE. See Insurance.
GUARDAGE.
A state of wardship.
A guardian is a person lawfully
invested with the power, and charged with the
duty, of taking care of the person and managing
the property and rights of another person, who,
for some peculiarity of status, or defect of age,
understanding, or self-control, is considered incapable of administering his own affairs. Bass
v. Cook, 4 Port., Ala., 392; Sparhawk v. Allen, 21
N.H. 27; Burger v. Frakes, 67 Iowa, 460, 23 N.W.
746; Fleming v. Leibe, 95 N.J.Eq. 129, 122 A. 616.
One who legally has the care and management
of the person, or the estate, or both, of a child
during its minority. Reeve, Dom. Rel. 311.
GUARDIAN.
This term might be appropriately used to designate the
person charged with the care and control of idiots, lunatics,
habitual drunkards, spendthrifts, and the like; but such
person is, under many of the statutory systems authorizing
the appointment, styled "committee," and in common usage the name "guardian" is applied only to one having the
care and management of a minor.
Classification
A testamentary guardian is one appointed by the deed or
last will of the child's father; while a guardian by election
is one chosen by the infant himself in a case where he
would otherwise be without one.
A general guardian is one who has the general care and
control of the person and estate of his ward; while a
special guardian is one who has specie] or limited powers
and duties with respect to his ward, e. g., a guardian who
has the custody of the estate but not of the person, or vice
versa, or a guardian ad litem.
A domestic guardian is one appointed at the place where
the ward is legally domiciled; while a foreign guardian derives his authority from appointment by the courts of another state, and generally has charge only of such property
as may be located within the jurisdiction of the power appointing him.
A guardian ad litem is a guardian appointed by a court of
justice to prosecute or defend for an infant in any suit to
which he may be a party, 2 Steph.Comm. 342; Crawford
v. Amusement Syndicate Co., Mo., 37 S.W.2d 581, 584.
Most commonly appointed for infant defendants, infant
plaintiffs generally suing by next friend. This kind of
guardian has no right to interfere with the infant's person
or property. 2 Steph.Comm. 343; Richter v. Leiby, 107
Wis. 404, 83 N.W. 694; Morris v. Standard Oil Co., 192
Cal. 343, 219 P. 998, 1000, 30 A.L.R. 1103.
A guardian by appointment of court has custody of the
infant until the attainment of full age. 2 Steph.Comm.
341; 2 Kent, Comm. 226.
A guardian by nature is the father, and,,,on nis death,
the mother, of a child. 1 Bl.Comm. 461; 2 Kent, Comm.
219; Daniels v. Metropolitan Life Ins. Co., 135 Pa.Super.
450, 5 A.2d 608, 611. This guardianship extends only to the
custody of the person of the child to the age of twenty-one
years. Sometimes called "natural guardian," but this is
rather a popular than a technical mode of expression. 2
Steph.Comm. 337; Kline v. Beebe, 6 Conn. 500; Mauro v.
Ritchie, 16 Fed.Cas. 1171.
A guardian by statute is a guardian appointed for a
child by the deed or last will of the father, and who has
the custody both of his person and estate until the attainment of full age. This kind of guardianship is founded on
the statute of 12 Car. II. c. 24, and ,has been pretty extensively adopted in this country. 1 Bl.Comm. 462; 2 Steph.
Comm. 339, 340; 2 Kent, Comm. 224-226; Huson v. Green,
88 Ga. 722, 16 S.E. 255.
A guardian for nurture is the father, or, at his decease,
the mother, of a child. This kind of guardianship extends
only to the person, and determines when the infant arrives
at the age of fourteen. 2 Kent, Comm. 221; 1 Bl.Comm.
461; 2 Steph.Comm. 338; Mauro v. Ritchie, 16 Fed.Cas.
1171; Arthurs' Appeal, 1 Grant Cas., Pa., 56.
Guardian in chivalry. In the tenure by knight's service,
in the feudal law, if the heir of the feud was under the age
of twenty-one, being a male, or fourteen, being a female,
the lord was entitled to the wardship (and marriage) of
the heir, and was called the "guardian in chivalry." This
wardship consisted in having the custody of the body and
lands of such heir, without any account of the profits. 2
Bl.Comm. 67.
Guardian in socage. At the common law, this was a
species of guardian who had the custody of lands coming
to the infant by descent, as also of the infant's person,
until the latter reached the age of fourteen. Such guardian was always "the next of kin to whom the inheritance
cannot possibly descend." 1 Bl.Comm. 461; 2 Steph.Comm.
338; Byrne v. Van Hoesen, 5 Johns., N.Y., 67; Combs v.
Jackson, 2 Wend., N.Y., 157, 19 Am.Dec. 568.
Natural guardian. The father of a child, or the mother if
the father be dead.
"Guardian de son tort," sometimes described as "quasi
guardian" or "guardian by estoppel," is one who assumes
to act as guardian without valid authority. Rear v. Olson,
219 Wis. 322, 263 N.W. 357.
GUARDIAN DE L'EGLISE. A church-warden.
GUARDIAN DE L'ESTEMARY. The warden of
the stannaries or mines in Cornwall, etc.
GUARDIAN OF THE PEACE. A warden or conservator of the peace.
GUARDIAN OF THE POOR. In English Jaw, a
person elected by the ratepayers of a parish to
have the charge and management of the parish
work-house or union. See 3 Steph. Comm. 203,
215.
834
GUILLOTINE
GUEST-TAKER. An agister; one who took cattle in to feed in the royal forests. Cowell.
GUARDIAN OF THE SPIRITUALITIES. The
person to whom the spiritual jurisdiction of any
diocese is committed during the vacancy of the
see.
GUET. In old French law, watch. Ord. Mar. liv.
4, tit. 6.
GUARDIAN OF THE TEMPORALITIES. The
person to whose custody a vacant see or abbey
was committed by the crown.
GUIA. In Spanish law, a right of way for narrow carts. White, New Recop. 1. 2, c. 6, § 1.
GUIDAGE. In old English law, that which was
given for safe conduct through a strange territory, or another's territory. Cowell.
GUARDIAN OR WARDEN, OF THE CINQUE
PORTS. A magistrate who has the jurisdiction
of the ports or havens which are called the
"Cinque Ports," ( q. v.). This office was first created in England, in imitation of the Roman policy,
to strengthen the sea-coasts against enemies, etc.
The office of guiding of travelers through dangerous and unknown ways. 2 Inst. 526.
GUIDE-PLATE. An iron or steel plate to be attached to a rail for the purpose of guiding to their
place on the rail wheels thrown off the track.
Pub. St. Mass. 1882, p. 1291.
GUARDIANSHIP. The office, duty, or authority
of a guardian. Also the relation subsisting between guardian and ward.
GUARDIANUS. A guardian, warden, or keeper.
Spelman.
GUIDON DE LA MER. The name of a treatise
on maritime law, by an unknown author, supposed
to have been written about 1671 at Rouen, and considered, in continental Europe, as a work of high
authority.
GUARENTIGIO. In Spanish law, a written authorization to a court to enforce the performance
of an agreement in the same manner as if it had
been decreed upon regular legal proceedings.
GUILD. A voluntary association of persons pursuing the same trade, art, profession, or business,
such as printers, goldsmiths, wool merchants, etc..
united under a distinct organization of their own,
analogous to that of a corporation, regulating the
affairs of their trade or business by their own laws
and rules, and aiming, by co-operation and organization, to protect and promote the interests of
their common vocation.
GUARNIMENTUM. In old European law, a provision of necessary things. Spelman. A furnishing or garnishment.
GUASTALD. One who had the custody of the
royal mansions.
GUBERNATOR. Lat. In Roman law, the pilot
or steersman of a ship.
In medieval history these fraternities or guilds played
an important part in the government of some states; as at
Florence, in the thirteenth and following centuries, where
they chose the council of government of the city. The
word is said to be derived from the Anglo-Saxon "gild" or
"geld," a tax or tribute, because each member of the society was required to pay a tax towards its support.
GUERILLA PARTY. In military law, an independent body of marauders or armed men, not
regularly or organically connected with the armies of either belligerent, who carry on a species
of irregular war, chiefly by depredation and massacre.
GUILD RENTS. Rents payable to the crown by
any guild, or such as formerly belonged to religious guilds, and came to the crown at the general
dissolution of the monasteries. Tomlins.
GUERPI, GUERPY. L. Fr. Abandoned; left;
deserted. Britt. c. 33.
GUERRA, GUERRE. War. Spelman.
GUILDHALL. The hall or place of meeting of a
guild, or gild.
GUEST. A person entertained for pay at inn,
tavern, or hotel on general undertaking of keeper
thereof. Murray v. Hagens, La.App., 143 So. 505,
506, 507. A traveler who lodges at an inn or tavern with the consent of the keeper. Bac. Abr.
"Inns," C, 5; 8 Coke, 32; McDaniels v. Robinson,
26 Vt. 316, 62 Am.Dec. 574.
The place of meeting of a municipal corporation. 3 Steph. Comm. 173, note. The mercantile
or commercial gilds of the Saxons are supposed
to have given rise to the present municipal corporations of England, whose place of meeting is
still called the "Guildhall."
A guest, as distinguished from a boarder, is bound for
no stipulated time. He stops at the inn for a short or as
long time as he pleases, paying, while he remains, the customary charge. Stewart v. McCready, 24 How.Prac. N.Y.
62; McIntosh v. Schops, 92 Or. 307, 180 P. 593, 595; Goodyear Tire & Rubber Co. v. Altamont Springs Hotel Co.,
206 Ky. 494, 267 S.W. 555, 557.
A "guest" in an automobile is one who takes
ride in automobile driven by another person, merely for his own pleasure or on his own business,
and without making any return or conferring any
benefit on automobile driver. Elliott v. Camper,
8 W.W.Harr. 504, 194 A. 130, 133; Blashfield, Cyc.
of Automobile Law and Prac., Perm. Ed., § 2291.
GUILDHALL SITTINGS. The sittings held in the
Guildhall of the city of London for city of London causes.
GUILLOTINE. An instrument for decapitation,
used in France for the infliction of the death penalty on convicted criminals, consisting, essentially,
of a heavy and weighted knife-blade moving perpendicularly between grooved posts, which is
made to fall from a considerable height upon the
neck of the sufferer, immovably fixed in position
to receive the impact.
835
GUILT
GUILT. In criminal law, that quality which imparts criminality to a motive or act, and renders
the person amenable to punishment by the law.
That disposition to violate the law which has
manifested itself by some act already done. The
opposite of innocence. See Ruth. Inst. b. 1, c. 18,
§ 10.
GUTI. Jutes; one of the three nations who migrated from Germany to Britain at an early period. According to Spelman, they established
themselves chiefly in Kent and the Isle of Wight.
GUTTER. The diminutive of a sewer. Callis,
Sew. (80,) 100. In modern law, an open ditch or
conduit designed to allow the passage of water
from one point to another in a certain direction,
whether for purposes of drainage, irrigation, or
otherwise. Warren v. Henly, 31 Iowa 31; Willis
v. State, 27 Neb. 98, 42 N.W. 920.
GUILTY. Having committed a crime or tort;
the word used by a prisoner in pleading to an indictment when he confesses the crime of which he
is charged, and by the jury in convicting. Corn.
v. Walter, 83 Pa. 108, 24 Am.Rep. 154; Jessie v.
State, 28 Miss. 103; State v. White, 25 Wis. 359.
Responsible for a delinquency, crime, or sin, and
the connotation of such word is "evil", "wrong.
doing", or "culpability". Hilkert v. Canning, 58
Ariz. 290, 119 P.2d 233, 236.
GWABR MERCHED. Maid's fee. A British word
signifying a customary fine payable to lords of
some manors on marriage of the tenant's daughters, or otherwise on their committing incontinence. Cowell.
GUINEA. A coin formerly issued by the English
mint, but all these coins were called in the time
of Wm. IV. The word now means only the sum
of £1 18., in which denomination the fees of counsel are always given.
GWALSTOW. A place of execution. Jacob.
GWAYF. Waif, or waived; that which has been
stolen and afterwards dropped in the highway for
fear of a discovery. Cowell.
GULA-THING. A collection of Scandinavian
customs in force in the southern part of Norway.
The Frosta-thing was in force in the more northerly division of Dronheim. They are said to help
to an understanding of the law prevailing in the
northern part of England, where the Danish influence was strongest. 2 Holdsw. Hist. E. L. 23.
GULE OF AUGUST. The first of August, being
the day of St. Peter ad Vincula.
GULES. The heraldic name of the color usually
called "red." The word is derived from the Arabic
word "gule," a rose, and was probably introduced
by the Crusaders. Gules is denoted in engravings
by numerous perpendicular lines. Heralds who
blazoned by planets and jewels called it "Mars,"
and "ruby." Wharton.
GUN. A firearm for throwing a projectile with
gunpowder. Highsaw v. Creech, 17 Tenn.App. 573,
69 S.W.2d 249. A portable firearm such as a rifle,
shotgun, carbine, etc. Henderson v. State, 75 Fla.
464, 78 So. 427, 428. A pistol or revolver. State
v. Christ, 189 Iowa, 474, 177 N.W. 54, 57.
GURGES. Lat. Properly a whirlpool, but in old
English law and conveyancing, a deep pit filled
with water, distinguished from "stagnum," which
was a shallow pool or pond. Co. Litt. 5; Johnson
v. Rayner, 6 Gray, Mass., 107.
GURGITES. Wears. Jacob.
GUST. See Gest.
GYLPUT. The name of a court which was held
every three weeks in the liberty or hundred of
Pathbew in Warwick. Jacob.
GYLTWITE, or GUILTWIT. Sax. Compensation for fraud or trespass. Cowell.
GYNARCHY, or GYNIECOCRACY. Government
by a woman; a state in which women are legally
capable of the supreme command; e. g., in Great
Britain.
GYNECOLOGIST. A physician specializing in
diseases of the female organs. Simonet v. Frank
F. Pellissier & Sons, 61 Cal.App.2d 41, 141 P.2d
922, 924.
GYNECOLOGY. The science which treats of the
structure and diseases of women. Zerr v. Zerr,
188 Ky. 233, 221 S.W. 550, 551.
GYRATION. Movement about a fixed point.
Great Western Mfg. Co. v. Lowe, D.C.Mich., 13
F.2d 880, 881.
GYRATORY STONE-CRUSHER. A machine
with a shaft or crushing means which, instead
of rotating, gyrates or moves in a circular course
under the control of an eccentric. Traylor Engineering & Mfg. Co. v. Worthington Pump & Machinery Co., C.C.A.Pa., 1 F.2d 833.
GYROVAGI. Wandering monks.
GYVES. Fetters or shackles for the legs.
836
HABEAS
H
Misc. 573, 290 N.Y.S. 1011. The office of the writ is not to
determine prisoner's guilt or innocence, and only issue
which it presents is whether prisoner is restrained of his
liberty by due process. Ex parte Presnell, 58 Okl.Cr. 50,
49 P.2d 232.
H. This letter, as an abbreviation, stands for
Henry (a king of that name) in the citation of
English statutes. In the Year Books, it is used
as an abbreviation for Hilary term. In tax assessments and other such official records, "h" may be
used as an abbreviation for "house," and the
courts will so understand it. Alden v. Newark,
36 N.J.L. 288; Parker v. Elizabeth, 39 N.J.L. 693.
HABEAS CORPUS ACT. The English statute of
31 Car. II. c. 2, is the original and prominent habeas corpus act. It was amended and supplemented by St. 56 Geo. III. c. 100. And similar statutes
have been enacted in all the United States. This
act is justly regarded as the great constitutional
guaranty of personal liberty.
H. A. An abbreviation for hoc anno, this year,
in this year.
H. B. An abbreviation for house bill, i. e., a bill
in the house of representatives, as distinguished
from a senate bill.
H. B. M. An abbreviation for His (or Her) Britannic Majesty.
H. C. An abbreviation for house of commons, or
for habeas corpus.
H. H. F. A. Housing and Home Finance Agency.
H. I. H. His (or Her) Imperial Highness.
H. L. An abbreviation for house of lords.
H. R. An abbreviation for house of representatives.
H. T. An abbreviation for hoc titulo, this title,
under this title; used in references to books.
H. V. An abbreviation for hoc verbo or how voce,
this word, under this word; used in references to
dictionaries and other works alphabetically arranged.
HABE, or HAVE. Lat. A form of the salutatory
expression "Ave" (hail) in the titles of the constitutions of the Theodosian and Justinian Codes.
Calvin; Spelman.
HABEAS CORPUS AD DELIBERANDUM ET
RECIPIENDUM. A writ which is issued to remove, for trial, a person confined in one county
to the county or place where the offense of which
he is accused was committed. Bac. Abr. "Habeas
Corpus," A; 1 Chit. Crim. Law, 132. Ex parte
Bollman, 4 Cranch, 97, 2 L.Ed. 554. Thus, it has
been granted to remove a person in custody for
contempt to take his trial for perjury in another
county. 1 Tyrw. 185.
HABEAS CORPUS AD FACIENDUM ET RECIPIENDUM. A writ issuing in civil cases to remove
the cause, as also the body of the defendant, from
an inferior court to a superior court having jurisdiction, there to be disposed of. It is also called
"habeas corpus cum causa." Ex parte Bollman,
4 Cranch, 97, 2 L.Ed. 554.
HABEAS CORPUS AD PROSEQUENDUM. A
writ which issues when it is necessary to remove
a prisoner in order to prosecute in the proper
jurisdiction wherein the fact was committed. 3
Bl. Comm. 130; State ex rel. Deeb v. Fabisinski,
111 Fla. 454, 152 So. 207, 210.
HABEAS CORPORA JURATORUM. A writ commanding the sheriff to bring up the persons of
jurors, and, if need were, to distrain them of their
lands and goods, in order to insure or compel their
attendance in court on the day of trial of a cause.
It issued from the Common Pleas, and served the
same purpose as a distringas juratores in the
King's Bench. It was abolished by the C. L. P.
Act, 1852, § 104. Brown.
HABEAS CORPUS. Lat. (You have the body.)
The name given to a variety of writs, (of which
these were anciently the emphatic words,) having for their object to bring a party before a court
or judge. In common usage, and whenever these
words are used alone, they are understood to mean
the habeas corpus ad sub jiciendum, (see infra.)
Dancy v. Owens, 126 Okl. 37, 258 P. 879, 884; In re
McDevitt, 101 Misc. 588, 168 N.Y.S. 433; U. S. v.
Tod, 263 U.S. 149, 44 S.Ct. 54, 57, 68 L.Ed. 221;
Payne v. Graham, 20 Ala.App. 439, 102 So. 729,
731.
The sole function of the writ is to release from unlawful imprisonment. People ex rel. Luciano v. Murphy, 160
HABEAS CORPUS AD RESPONDENDUM. A
writ which is usually employed in civil cases to
remove a person out of the custody of one court
into that of another, in order that he may be sued
and answer the action in the latter. 2 Sell. Pr.
259; 2 Mod. 198; 3 Bl. Comm. 129; 1 Tidd, Pr. 300.
HABEAS CORPUS AD SATISFACIENDUM. In
English practice. A writ which issues when a
prisoner has had judgment against him in an action, and the plaintiff is desirous to bring him up
to some superior court, to charge him with process
of execution. 3 Bl. Comm. 129, 130; 3 Steph.
Comm. 693; 1 Tidd, Pr. 350.
HABEAS CORPUS AD SUBJICIENDUM. A writ
directed to the person detaining another, and
commanding him to produce the body of the prisoner, (or person detained,) with the day and
cause of his caption and detention, ad faciendum,
sub jiciendum et recipiendum, to do, submit to, and
receive whatsoever the judge or court awarding
the writ shall consider in that behalf. 3 Bl. Comm.
131; 3 Steph. Comm. 695.
This is the well-known remedy for deliverance from illegal confinement, called by Sir William Blackstone the
837
HABEAS
most celebrated writ in the English law, and the great and
efficacious writ in all manner of illegal confinement. 3 Bl.
Comm. 129. The "great writ of liberty," issuing at common law out of courts of Chancery, King's Bench, Common
Pleas, and Exchequer. Ex parte Kelly, 123 N.J.Eq. 489,
198 A. 203, 207.
HABEAS CORPUS AD TESTIFICANDUM. At
common law, the writ, meaning "you have the
body to testify", used to bring up a prisoner detained in a jail or prison to give evidence before
the court. Hottle v. District Court in and for
Clinton County, 233 Iowa 904, 11 N.W.2d 30, 34; 3
Bl. Comm. 130; 2 Tidd, Pr. 809. Ex parte Marmaduke, 91 Mo. 250, 4 S.W. 91, 60 Am.Rep. 250.
HABEAS CORPUS CUM CAUSA. (You have the
body, with the cause.) Another name for the writ
of habeas corpus ad faciendum et recipiendum,
(q. V.) 1 Tidd, Pr. 348, 349.
HABEMUS OPTIMUM TESTEM, CONFITENTEM REUM. 1 Phil. Ev. 397. We have the best
witness,—a confessing defendant. "What is taken pro confess° is taken as indubitable truth. The
plea of guilty by the party accused shuts out all
further inquiry. Habemus con fitentem reum is
demonstration, unless indirect motives can be assigned to it?' 2 Hagg. Eccl. 315.
HABENDUM. Lat. Portion of deed beginning
with the words "To have and to hold". Bannin v.
Peck, 266 App.Div. 209, 41 N.Y.S.2d 668, 670. The
clause usually following the granting part of the
premises of a deed, which defines the extent of
the ownership in the thing granted to be held and
enjoyed by the grantee. 3 Washb. Real Prop. 437;
New York Indians v. U. S., 170 U.S. 1, 18 S.Ct. 531,
42 L.Ed. 927; Freudenberger Oil Co. v. Simmons,
75 W.Va. 337, 83 S.E. 995, 997, Ann.Cas.1918A,
873; In re Tamargo, 220 N.Y. 225, 115 N.E. 462,
464.
The office of the "habendum" is properly to determine
what estate or interest is granted by the deed, though office may be performed by the premises, in which case the
habendum may lessen, enlarge, explain, or qualify, but
not totally contradict or be repugnant to, estate granted
in the premises. Claridge v. Phelps, Ind.App., 105 Ind.
App. 344, 11 N.E.2d 503, 504.
HABENDUM ET TENENDUM. In old conveyancing, to have and to hold. Formal words in
deeds of land from a very early period. Bract.
fol. 17b.
HABENTES HOMINES. In old English law, rich
men; literally, having men. The same with fcesting-men, (q. v.) Cowell.
HABENTIA. Riches. Mon. Angl. t. 1, 100.
HABERE. Lat. In the civil law, to have. Sometimes distinguished from tenere, (to hold,) and
possidere, (to possess;) habere referring to the
right, tenere to the fact, and possidere to both.
Calvin.
HABERE FACIAS POSSESSIONEM. Lat. That
you cause to have possession. The name of the
process commonly resorted to by the successful
party in an action of ejectment, for the purpose
of being placed by the sheriff in the actual pos-
session of the land recovered. It is commonly
termed simply "habere facias," or "hab. fa."
HABERE FACIAS SEISINAM. L. Lat. That you
cause to have seisin. The writ of execution in
real actions, directing the sheriff to cause the demandant to have seisin of the lands recovered. It
was the proper process for giving seisin of a freehold, as distinguished from a chattel interest in
lands.
HABERE FACIAS VISUM. Lat. That you cause
to have a view. A writ to cause the sheriff to take
a view of lands or tenements.
HABERE LICERE. Lat. In Roman law, to allow [one] to have [possession.] This phrase denoted the duty of the seller of property to allow
the purchaser to have the possession and enjoyment. For a breach of this duty, an actio ex empto might be maintained.
HABERGEON. A diminutive of hauberk (q. v.),
denoting a short coat of mail without sleeves.
Blount.
HABERJECTS. A cloth of a mixed color. Magna
Charta, c. 26.
HABETO TIBI RES TUAS. Lat. Have or take
your effects to yourself. One of the old Roman
forms of divorcing a wife. Calvin.
HABILIS. Lat. Fit; suitable; active; useful, (of
a servant.) Proved; authentic, (of Book of
Saints.) Fixed; stable, (of authority of the king.)
Du Cange.
HABIT. A disposition or condition of the body
or mind acquired by custom or a usual repetition
of the same act or function. Conner v. Citizens'
St. R. Co., 146 Ind. 430, 45 N.E. 662; State v. Skillicorn, 104 Iowa, 97, 73 N.W. 503; Corn. v. Whitney,
5 Gray, Mass., 85. The customary conduct, to pursue which one has acquired a tendency, from frequent repetition of the same acts. Knickerbocker
Life Ins. Co. v. Foley, -105 U.S. 350, 26 L.Ed. 1055;
National Council of Knights and Ladies of Security v. Fowler, 66 Okl. 294, 168 P. 914, 915, 6 A.L.R.
591; Woodmen of the World Life Ins. Soc. v.
Reese, 206 Ark. 530, 176 S.W.2d 708, 714.
HABIT AND REPUTE. Applied in Scotch law
to a general understanding and belief of something's having happened: thus, by the law of Scotland, marriage may be established by "habit and
repute" where the parties cohabit and are at the
same time held and reputed as man and wife.
See Bell. The same rule obtains in some of the
United States.
HABITABLE REPAIR. A covenant by a lessee
to "put the premises into habitable repair" binds
him to put them into such a state that they may
be occupied, not only with safety, but with reasonable comfort, for the purposes for which they
are taken. Miller v. McCardell, 19 R.I. 304, 33 A.
445, 30 L.R.A. 682; 2 Mood. & R. 186.
HABITANCY. That fixed place of abode to which
a person intends to return habitually when absent.
838
HABITUAL
times convicted of a misdemeanor. Crim.Code
N.Y. § 510; Rev.St.Utah, 1898, § 4067 (Comp.Laws
1917, § 7907). In a more general sense, one made
subject to police surveillance and arrest on suspicion, on account of his previous criminal record
and absence of honest employment.
Owens v. Huntling, C.C.A.Or., 115 F.2d 160, 162.
Settled dwelling in a given place; fixed and 'permanent residence there.
This term is more comprehensive than "domicile," for
one may be domiciled in a given place though he does not
spend the greater portion of his time there, or though he
may be absent for long periods. It is also more comprehensive than "residence," for one may reside in a given
place only temporarily or for short periods on the occasion
of repeated visits. But in neither case could he properly be
called an "inhabitant" of that place or be said to have his
"habitancy" there. Atkinson v. Washington & Jefferson
College, 54 W.Va. 32, 46 S.E. 253; Hairston v. Hairston,
27 Miss. 711, 61 Am.Dec. 530; Abington v. North Bridgewater, 23 Pick., Mass., 170. And see Domicile; Residence.
It is difficult to give an exact definition of "habitancy."
In general terms, one may be designated as an "inhabitant" of that place which constitutes the principal seat of
his residence, of his business, pursuits, connections, attachments, and of his political and municipal relations.
The term, therefore, embraces the fact of residence at a
place, together with the intent to regard it and make it a
home. The act and intent must concur. Lyman v. Fiske,
17 Pick., Mass., 231, 28 Am.Dec. 293.
HABITUAL CRIMINALS ACT. The statute 32 &
33 Vict. c. 99. By this act power was given to apprehend on suspicion convicted persons holding
license under the penal servitude acts, 1853, 1857,
and 1864. The act was repealed and replaced by
the prevention of crimes act, 1871, (34 & 35 Vict.
c. 112.)
HABITUAL DRUNKARD. One who has a fixed
habit of frequently getting drunk, though not
oftener drunk than sober, and though sober for
weeks at a time. Patton v. Commonwealth, 273
Ky. 307, 116 S.W.2d 652, 653.
HABITANT. Fr. In French and Canadian law,
a resident tenant; a settler; a tenant who kept
hearth and home on the seigniory. A native of
Canada of French descent, particularly of the
peasant or farming class.
One who frequently and repeatedly becomes intoxicated
by excessive indulgence in intoxicating liquor so as to
acquire a fixed habit and an involuntary tendency to become intoxicated as often as the temptation is presented,
even though he remains sober for days or even weeks at a
ti me. Leonard v. Leonard, 221 Iowa 722, 266 N.W. 537,
538.
HABITATIO. Lat. In the civil law, the right of
dwelling; the right of free residence in another's
house. Inst. 2, 5; Dig. 7, 8.
A person given to inebriety or the excessive use of intoxicating drink, who has lost the power or the will, by
frequent indulgence, to control his appetite for it. Ludwick v. Com., 18 Pa. 174; Gourlay v. Gourlay, 16 R.I. 705,
19 A. 142; McBee v. McBee, 22 Or. 329, 29 P. 887, 29 Am.St.
Rep. 613.
HABITATION.
In the civil law. The right of a person to
live in the house of another without prejudice to the property. It differed from a usufruct, in this: that the usufructuary might apply
the house to any purpose, as of a store or manufactory; whereas the party having the right of
habitation could only use it for the residence of
himself and family. 1 Browne, Civil Law, 184.
In Estates. A dwelling-house; a homestall. 2
Bl.Comm. 4; 4 Bl.Comm. 220; Holmes v. Oregon
& C. R. Co., D.C.Or., 5 F. 527; Nowlin v. Scott, 10
Grat., Va., 65; Harvard College v. Gore, 5 Pick.,
Mass., 372.
In its generic sense, the term denotes a place of abode,
but as used in a restrictive building covenant it may be
synonymous simply with "dwelling." Goodhue v. Fennell,
164 App.Div. 821, 150 N.Y.S. 435, 436.
HABITUAL. Customary, usual, of the nature of
a habit; its synonyms are customary, common,
regular; while its antonyms are unusual, unwonted, extraordinary, rare. Illinois Bankers Life
Ass'n v. Theodore, 47 Ariz. 314, 55 P.2d 806, 811.
Formed or acquired by or resulting from habit; frequent use or custom. Moore v. State, 111
Tex.Cr.R. 461, 14 S.W.2d 1041. The "habitual" indulgence in violent and ungovernable temper as
a ground for divorce is not synonymous with "frequent." Kellogg v. Kellogg, 93 Fla. 261, 111 So.
637, 638.
HABITUAL CRIMINAL. By statute in several
states, one who is convicted of a felony, having
been previously convicted of any crime (or twice
so convicted), or who is convicted of a misdemeanor and has previously (in New York) been five
It is not necessary that the person shall have lost his will
power so that he cannot resist stimulants, Lester v.
Sampson, Mo.App., 180 S.W. 419, 421; or that he be intoxicated so often as to incapacitate him from attending
to his business for a considerable portion of time. Runkle
v. Southern Pac. Milling Co., 184 Cal. 714, 195 P. 398, 400,
16 A.L.R. 275.
In England, defined by the habitual drunkards act, 1879,
(42 & 43 Vict. c. 19,) which authorizes confinement in a
retreat, upon the party's own application, as "a person
who, not being amenable to any jurisdiction in lunacy, is,
notwithstanding, by reason of habitual intemperate drinking of intoxicating liquor, at times dangerous to himself,
or herself, or others, or incapable of managing himself or
herself, or his or her affairs."
HABITUAL DRUNKENNESS, INTOXICATION,
or INTEMPERANCE. The custom or habit of
getting drunk; the constant indulgence in stimulants, whereby intoxication is produced; not the
ordinary use, but the habitual use of them; the
habit should be actual and confirmed, but need
not be continuous, or even of daily occurrence.
Williams v. Goss, 43 La.Ann. 868, 9 So. 750; Short
v. Morrison, 159 La. 193, 105 So. 286, 288. As a
cause for divorce, the fixed habit of frequently
getting drunk; it does not necessarily imply continual drunkenness. Moor v. Moor, 211 Ala. 56, 99
So. 316, 318; Holm v. Holm, 44 Utah, 242, 139 P.
937, 938. That degree of intemperance from the
use of intoxicating drinks which disqualifies the
person a great portion of the time from properly
attending to business, or which would reasonably
inflict a course of great mental anguish upon the
innocent party. Rev.Codes Idaho, § 2652 (Code
1932, § 31-608). It has no reference to the excessive or habitual use of drugs. Hayes v. Hayes, 86
Fla. 350, 98 So. 66, 67; Smith v. Smith, 7 Boyce,
Del., 283, 105 A. 833.
839
HABITUALLY
HABITUALLY. Customarily; by frequent practice or use. It does not mean entirely or exclusively. Stanton v. French, 91 Cal. 274, 27 P. 657, 25
Am.St.Rep. 174.
HABITUM ET TONSURAM CLERICALEM.
Clerical attire and tonsure. 4 Bl.Comm. 367.
HABLE, L. Fr. In old English law, a port or
harbor; a station for ships. St. 27 Hen. VI. c. 3.
son, the same being carried away by another person. Old Nat. Brev. 93.
HIEREDE DELIBERANDO ALTERI QUI HABET
CUSTODIUM TERRIE. An ancient writ, directed
to the sheriff, to require one that had the body of
an heir, being in ward, to deliver him to the person
whose ward he was by reason of his land. Reg.
Orig. 161.
HIEREDE RAPTO. An ancient writ that lay for
the ravishment of the lord's ward. Reg. Orig. 163.
HACIENDA. In Spanish law, the public domain;
the royal estate; the aggregate wealth of the
state. The science of administering the national
wealth; public economy.
HLEREDEM DEUS FACIT, NON HOMO. God
makes the heir, not man. Co. Litt. 7b; Bract. 62b.
Also an estate or farm belonging to a private
person.
HIEREDES. Lat. In the civil law, heirs. The
plural of hceres (q. v.).
A royal estate. Newman & B. Dict.
HACK STAND. A private hack stand is a station where taxicabs or other vehicles are kept
standing to solicit trade from the public indiscriminately at all hours. Borland v. Curto, 121 Misc.
336, 201 N.Y.S. 236, 237.
HACKNEY. Let out for hire, or devoted to common use; as, "hackney coaches," "hackney carriages." State v. Jarvis, 89 Vt. 239, 95 A. 541,
543.
HACKNEY CARRIAGES. Carriages plying for
hire in the street. 2 C. 13, 877; Masterson v.
Short, 33 How.Pr., N.Y., 481; 17 & 18 Vict. c. 86;
Corn. v. Matthews, 122 Mass. 60.
HAD. As used in a statute providing that no suit,
action or proceeding to foreclose a mortgage or
trust deed shall be had or maintained, "had"
means commenced or begun. Friel v. Alewel, 318
Mo. 1, 298 S.W. 762, 764.
HADBOTE. In Saxon law, a recompense or satisfaction for the violation of holy orders, or violence offered to persons in holy orders. Cowell;
Blount.
HADD. In Hindu law, a boundary or limit. A
statutory punishment defined by law, and not arbitrary. Mozley & Whitley.
HADERUNGA. In old English law, hatred; ill
will; prejudice, or partiality. Spelman; Cowell.
Respect or distinction of persons, Jacob.
HADGONEL. In old English law, a tax or mulct.
Jacob.
HIEC EST CONVENTIO. Lat. This is an agreement. Words with which agreements anciently
commenced. Yearb. H. 6 Edw. II. 191.
HIEC EST FINALIS CONCORDIA. L. Lat. This
is the final agreement. The words with which the
foot of a fine commenced. 2 Bl.Comm. 351.
HJEREDA. In Gothic law, a tribunal answering
to the English court-leet or hundred court.
HIEREDE ABDUCTO. An ancient writ that lay
for the lord, who, having by right the wardship
of his tenant under age, could not obtain his per-
H1EREDES PROXIMI. Nearest or next heirs.
The children or descendants of the deceased.
HIEREDES REMOTIORES. More remote heirs.
The kinsmen other than children or descendants.
HiEREDES SUI ET NECESSARII. In Roman
law, own and necessary heirs;
e., the lineal descendants of the estate-leaver. They were called
"necessary" heirs, because it was the law that
made them heirs, and not the choice of either the
decedent or themselves. But since this was also
true of slaves (when named "heirs" in the will)
the former class were designated "sui et necessarii," by way of distinction, the word "sui" denoting that the necessity arose from their relationship to the decedent. Mackeld. Rom. Law, § 733.
HLEREDIPETA. Lat. In old English law, a seeker of an inheritance; hence, the next heir to lands.
Du Cange.
H1EREDIPETZE SUO PROPINQUO VEL EXTRANEO PERICULOSO SANE CUSTODI NULLUS COMMITTATUR. To the next heir, whether
a relation or a stranger certainly a dangerous
guardian, let no one be committed. Co. Litt. 88b.
HZEREDITAS.
In Roman law. The hcereditas was a universal
succession by law to any deceased person, whether
such person had died testate or intestate, and
whether in trust (ex fideicommisso) for another
or not. The like succession according to
torian law was bonorum possessio.
The hcereditas was called "jacens," until the hceres took
it up, i. e., made his aditio hcereditatis; and such hceres,
if a suus hceres, had the right to abstain, (potestas abstinendi,) and, if an extraneus hceres, had the right to consider whether he would accept or decline, (potestas deliberandi,) the reason for this precaution being that (prior to
Justinian's enactment to the contrary) a hceres after his
aditio was liable to the full extent of the debts of the deceased person, and could have no relief therefrom, except
in the case of a damnum emergens or damnosa hcereditas,
i. e., an hcereditus which disclosed (after the aditio) some
enormous unsuspected liability. Brown. The theory was
that, though the physical person of the deceased had
perished, his legal personality survived and descended
unimpaired on his heirs in whom his legal identity was
continued.
In Old English Law. An estate transmissible
by descent; an inheritance. Co. Litt. 9.
840
HIERES
HIEREDITAS, ALIA CORPORALIS, ALIA INCORPORALIS; CORPORALIS EST, QU1E TANGI
POTEST ET VIDERI; INCORPORALIS QUZE
TANGI NON POTEST NEC VIDERI. Co. Litt. 9.
An inheritance is either corporeal or incorporeal.
Corporeal is that which can be touched and seen;
incorporeal, that which can neither be touched
nor seen.
HIEREDITAS DAMNOSA. A burdensome inheritance; one which would be a burden instead of a
benefit, that is, the debts to be paid by the heir
would exceed the assets.
HIEREDITAS EST SUCCESSIO IN UNIVERSUM
JUS QUOD DEFUNCTUS HABUERIT. Co. Litt.
237. Inheritance is the succession to every right
which the deceased had.
HIEREDITAS JACENS. In civil law, a prostrate
or vacant inheritance. The inheritance left to a
voluntary heir was so called so long as he had not
manifested, either expressly or by silence, his acceptance or refusal of the inheritance. So long as
no one had acquired the inheritance, it was termed
"hcereditas jacens;" and this, by a legal fiction,
represented the person of the decedent. Mackeld.
Rom. Law, § 737. The estate of a person deceased,
where the owner left no heirs or legatee to take
it, called also "caduca;" an escheated estate. Cod.
10, 10, 1; 4 Kent, Comm. 425. The term has also
been used in English law to signify an estate in
abeyance; that is, after the ancestor's death, and
before assumption of heir. Co. Litt. 342b. An inheritance without legal owner, and therefore open
to the first occupant. 2 Bl.Comm. 259.
HIEREDITAS LEGITIMA. A succession or inheritance devolving by operation of law (intestate
succession) rather than by the will of the decedent. Mackeld. Rom. Law, § 654.
HIEREDITAS LUCTUOSA. A sad or mournful inheritance or succession; as that of a parent to
the estate of a child, which was regarded as disturbing the natural order of mortality (turbato
ordine mortalitatis.) Cod. 6, 25, 9; 4 Kent, Comm.
397. It was sometimes termed tristis successio.
HIEREDITAS NIHIL ALIUD EST, QUAM SUCCESSIO IN UNIVERSUM JUS, QUOD DEFUNCTUS HABUERIT. The right of inheritance is
nothing else than the faculty of succeeding to all
the rights of the deceased. Dig. 50, 17, 62.
HIEREDITAS NUNQUAM ASCENDIT. An inheritance never ascends. Glanv. lib. 7, c. 1; 2 Bl.
Comm. 211. A maxim of feudal origin, and which
invariably prevailed in the law of England down
to the passage of the statute 3 & 4 Wm. IV. c. 106,
§ 6, by which it was abrogated. 1 Steph.Comm.
378. See Broom, Max. 527, 528.
HIEREDITAS TESTAMENTARIA. Testamentary inheritance, that is, succession to an estate
under and according to the last will and testament
of the decedent. Mackeld. Rom. Law, § 654.
HIEREDUM APPELLATIONE VENIUNT WEREDES HAEREDUM IN INFINITUM. By the title
of heirs, come the heirs of heirs to infinity. Co.
Litt. 9.
ILERES.
In Roman Law. The heir, or universal successor in the event of death. The heir is he who
actively or passively succeeds to the entire property of the estate-leaver. He is not only the successor to the rights and claims, but also to the
estate-leaver's debts, and in relation to his estate
is to be regarded as the identical person of the
estate-leaver, inasmuch as he represents him in all
his active and passive relations to his estate. Mackeld. Rom. Law, § 651.
The institution of the hceres was the essential characteristic of a testament: if this was not done, the instrument
was called a codicillus. Mack.C.L. §§ 632, 650.
It should be remarked that the office, powers, and duties
of the hceres, in Roman law, were much more closely assimilated to those of a modern executor than to those of an
heir at law. Hence "heir" is not at all an accurate translation of "hceres," unless it be understood in a special,
technical sense.
In Common Law. An heir; he to whom lands,
tenements, or hereditaments by the act of God
and right of blood to descend, of some estate of
inheritance. Co. Litt. 7b.
HIERES ASTRARIUS. In old English law, an
heir in actual possession of the house of his ancestor. Bract. 85, 267b.
HIERES DE FACTO. In old English law, heir
from fact; that is, from the disseisin or other
act of his ancestor, without or against right. An
heir in fact, as distinguished from an heir de jure,
or by law.
HIERES EST ALTER IPSE, ET FILIUS EST
PARS PATRIS. An heir is another self, and a
son is part of the father. 3 Coke, 12b.
HIERES EST AUT JURE PROPRIETATIS AUT
JURE REPRESENTATIONIS. An heir is either
by right of property, or right of representation.
3 Coke, 40b.
HIERES EST EADEM PERSONA CUM ANTECESSORE. An heir is the same person with his
ancestor. Co. Litt. 22; Branch, Princ. See Nov.
48, c. 1, § 1.
HIERES EST NOMEN COLLECTWUM. "Heir"
is a collective name or noun. 1 Vent. 215.
HIERES EST NOMEN JURIS; FILIUS EST NOMEN NATURIE. "Heir" is a name or term of
law; "son" is a name of nature. Bac. Max. 52, in
reg. 11.
HIERES EST PARS ANTECESSORIS. An heir is
a part of the ancestor. So said because the ancestor, during his life, bears in his body (in judgment
of law) all his heirs. Co. Litt. 22b; Schoonmaker
v. Sheely, 3 Hill, N.Y., 165, 167.
HIERES EX ASSE. In the civil law, an heir
to the whole estate; a sole heir. Inst. 2, 23, 9.
841
ILERES
HARES EXTRANEUS. In the civil law, a
strange or foreign heir; one who was not subject to the power of the testator, or person who
made him heir. Qui testatoris juri subjecti non
sunt, extranei hceredes appellantur. Inst. 2, 19, 3.
HARES FACTUS. In the civil law, an heir made
by will; a testamentary heir; the person created
universal successor by will. Story, Confl. Laws,
§ 507; 3 Bl.Comm. 224. Otherwise called "hceres
ex testamento," and "hceres institutus." Inst. 2,
9, 7; Id. 2, 14.
HARES FIDEICOMMISSARIUS. In the civil
law, the person for whose benefit an estate was
given to another (termed "hceres fiduciarius," q.
v.) by will. Inst. 2, 23, 6, 7, 9. Answering nearly to the cestui que trust of the English law.
HARES FIDUCIARIUS. A fiduciary heir, or heir
in trust; a person constituted heir by will, in trust
for the benefit of another, called the "fideicommissarius."
HARES H1EREDIS NEI EST MEUS HARES.
The heir of my heir is my heir. Wharton, Law
Dict.
HARES INSTITUTUS. A testamentary heir; one
appointed by the will of the decedent.
HARES LEGITIMUS. A lawful heir; one pointed out as such by the marriage of his parents.
HARES LEGITIMUS EST QUEM NUPTI1E REMONSTRANT. He is a lawful heir whom marriage points out as such; who is born in wedlock.
Co. Litt. 7b; Bract. fol. 88; Fleta, lib. 6, c. 1;
Broom, Max. 515; Mirror of Just. 70; Dig. 2, 4, 5.
( As to the application of the principle when the
marriage is subsequent to the birth of the child,
see 2 Cl. & F. 571; 6 Bingh. N. C. 385; 5 Wheat.
226, 262, n., 5 L.Ed. 70.)
HARES MINOR UNO ET VIGINTI ANNIS NON
RESPONDEBIT, NISI IN CASU DOTIS. Moore,
348. An heir under twenty-one years of age is not
answerable, except in the matter of dower.
HARES NATUS. In the civil law, an heir born;
one born heir, as distinguished from one made
heir, (hceres factus, q. v.;) an heir at law, or by
intestacy, (ab intestato;) the next of kin by blood,
in cases of intestacy. Story, Confi. Laws, § 507;
3 Bl.Comm. 224. This is the only form of heirship
recognized in the English law. Wms. R. P., 6th
Am. ed. 96.
HARES NECESSARIUS. In the civil law, a necessary or compulsory heir. This name was given
to the heir when, being a slave, he was named
"heir" in the testament, because on the death of
the testator, whether he would or not, he at once
became free, and was compelled to assume the
heirship. Inst. 2, 19, 1.
HARES NON TENETUR IN ANGLIA AD DEBITA ANTECESSORIS REDDENDA, NISI PER ANTECESSOREM AD HOC FUERIT OBLIGATUS,
PR1ETERQUAM DEBITA REGIS TANTUM. Co.
Litt 386. In England, the heir is not bound to
pay his ancestor's debts, unless he be bound to it
by the ancestor, except debts due to the king. But
now, by 3 & 4 Wm. IV. c. 104, he is liable.
HARES RECTUS. In old English law, a right
heir. Fleta, lib. 6, c. 1, § 11.
HARES SUUS. In the civil law, a man's own
heir; a decedent's proper or natural heir. This
name was given to the lineal descendants of the
deceased. Persons who were in the power of the
testator but became sui juris at his death. Inst.
2, 13; 3, 1, 4, 5. Those descendants who were under the power of the deceased at the time of his
death, and who are most nearly related to him.
Calvin.
HIERETARE. In old English law, to give a right
of inheritance, or make the donation hereditary
to the grantee and his heirs. Cowell.
H1ERETICO COMBURENDO. The statute 2 Hen.
IV. c. 15, de hceretico comburendo, was the first
penal law enacted against heresy, and imposed
the penalty of death by burning against all heretics who relapsed or who refused to abjure their
opinions. It was repealed by the statute 29 Car.
II. c. 9. Brown. This was also the name of a writ
for the purpose indicated. See, also, De HEeretico
Comburendo.
HAFNE. A haven or port. Cowell.
HAFNE COURTS. Haven courts; courts anciently held in certain ports in England. Spelman.
HAG. A division of a coppice or wood on which
timber was cut annually by the proprietor. Ersk.
Pr. 222.
HAGA. A house in a city or borough. Scott.
HAGIA. A hedge. Mon. Angl. tom. 2, p. 273.
HAGNE. A little hand-gun. St. 33 Hen. VIII. c.
6.
HAGNEBUT. A hand-gun of a larger description
than the hagne. St. 2 & 3 Edw. VI. c. 14; 4 & 5
P. & M. c. 2.
HAGUE TRIBUNAL. The Court of Arbitration
established by the Hague Peace Conference of
1899.
The object of the establishment was to facilitate the immediate recourse to arbitration for the settlement of international differences by providing a permanent court, "accessible at all times, and acting, in default of agreement to
the contrary between the parties, in accordance with the
rules of procedure inserted in the present convention."
The court is given jurisdiction over all arbitration cases,
provided the parties do not agree to institute a special
tribunal. An international Bureau was likewise established
to serve as a registry for the court and to be the channel of
communications relative to the meetings of the court. The
court, although called "permanent," is really so only in the
fact that there is a permanent list of members from among
whom the arbitrators in a given case are selected. At the
Second Hague Conference of 1907, apart from minor
changes made in the court, it was provided that, of the
two arbitrators appointed by each of the parties, only one
should be a national of the appointing state. 1 Scott, 274318, 423-464.
HAIA. In old Ength.. h law, a park inclosed. A
hedge. Cowell.
842
HALIFAX
HALF ENDEAL OR HALFEN-DEAL. A
H.AIEBOTE.
In old English law, a permission or
liberty to take thorns, etc., to make or repair
hedges. Blount.
HALF-KINEG.
HAILL.
In Scotch law, whole; the whole. "All
and haill" are common words in conveyances. 1
Bell, App.Cas. 499.
HAILWORKFOLK
(i. e., holyworkfolk.) Those
who formerly held lands by the service of defending or repairing a church or monument. See, also, Halywercfolk.
HAIMHALDARE.
In old Scotch law, to seek restitution of one's own goods and gear, and bring
the same home again. Skene de Verb. Sign.
HAIMSUCKEN.
In Scotch law, the crime of assaulting a person in his own house. Bell. See
Hamesecken.
HAIR.
A capillary outgrowth from the skin. It
has been held not to include the bristles of animals. Von Stade v. Arthur, 13 Blatchf. 251, Fed.
Cas. No. 16,998.
HAKH.
Truth; the true God; a just or legal
prescriptive right or claim; a perquisite claimable
under established usage by village officers. Wilson, Gloss. Ind.
HAKHDAR.
The holder of a right. Moz. & W.
See Hakh.
HALAKAR.
The realization of the revenue. Wilson, Gloss. Ind.; Moz. & W.
One of two equal parts into which anything may be divided. Hoyne v. Schneider, 138
Kan. 545, 27 P.2d 558.
A moiety. Prentiss v. Brewer, 17 Wis. 644, 86
Am.Dec. 730.
HALF BLOOD. See Blood.
HALF BROTHER, HALF SISTER.
Persons who
have the same father, but different mothers; or
the same mother, but different fathers. Wood v.
Mitcham, 92 N.Y. 379; In re Weiss' Estate, 1
Montg. Co. Law Rep'r, Pa., 210.
HALF CENT.
A copper coin of the United States,
of the value of five mills, and of the weight of
ninety-four grains. The coinage of these was
discontinued in 1857.
HALF CHEST.
In connection with tea, a "half
chest" is a chest containing 75 to 80 pounds, but
the weight varies according to the kind of tea.
Japan Tea Co. v. Franklin MacVeagh & Co., 142
Minn. 152, 171 N.W. 305, 307.
HALF DEFENSE. See Defense.
HALF DIME. A silver (now nickel)
coin of the
United States, of the value of five cents.
A silver coin of the United
States, of the value of fifty cents, or one-half the
value of a dollar.
HALF EAGLE.
A gold coin of the United States,
of the value of five dollars.
In Saxon law, half-king, (semirex.) A title given to the aldermen of all England. Crabb, Eng. Law, 28; Spelman.
HALF-MARK.
A noble, or six shillings and eight
pence in English money.
HALF NEPHEW OR HALF NIECE.
Son or
daughter of a half brother or half sister. Pierson
v. National Fire Proofing Corporation, 117 N.J.L.
600, 190 A. 73, 74.
HALF PILOTAGE.
Compensation for services
which a pilot has put himself in readiness to perform, by labor, risk, and cost, and has offered to
perform, at half the rate he would have received
if the services had actually been performed.
Gloucester Ferry Co. v. Pennsylvania, 114 U.S.
196, 5 S.Ct. 826, 29 L.Ed. 158.
HALF-PROOF.
In the civil law, proof by one
witness, or a private instrument. Hallifax, Civil
Law, b. 3, c. 9, no. 25; 3 Bl.Comm. 370. Or prima
facie proof, which yet was not sufficient to found
a sentence or decree.
HALF-SEAL.
That which was formerly used in
the English chancery for sealing of commissions
to delegates, upon any appeal to the court of delegates, either in ecclesiastical or marine causes.
8 Eliz. c. 3.
HALF SECTION.
HALF.
HALF DOLLAR.
moiety
or half of a thing.
In American land law, the half
of a section of land according to the divisions of
the government survey, laid off either by a northand-south or by an east-and-west line, and containing 320 acres. See Brown v. Hardin, 21 Ark. 324.
HALF-TIMER.
A child who, by the operation
of the English factory and education acts, is employed for less than the full time in a factory or
workshop, in order that he may attend some
"recognized efficient school." See factory and
workshop act, 1878, § 23; elementary education
act, 1876, § 11.
HALF-TONGUE.
A jury half of one tongue or
nationality and half of another. See De Medietate Lingua.
HALF YEAR.
In legal computation, the period
of one hundred and eighty-two days; the odd
hours being rejected. Co. Litt. 135b; Cro. Jac.
166; Yet. 100; 1 Steph.Comm. 265; Pol. Code Cal.
1903, § 3257.
HALT.
A man employed in ploughing. Wilson,
Gloss. Ind.; Moz. & W.
HALIFAX LAW. A
synonym for lynch law, or
the summary (and unauthorized) trial of a person
accused of crime and the infliction of death upon
him; from the name of the parish of Halifax, in
England, where anciently this form of private
justice was practised by the free burghers in the
case of persons accused of stealing; also called
"gibbet law."
843
HALIGEMOT
HALIGEMOT, or HALIMOTE. In Saxon law, the
meeting of a hall, (conventus aulce,) that is, a
lord's court; a court of a manor, or court-baron.
Spelman. So called from the hall, where the tenants or freemen met, and justice was administered. Crabb, Eng. Law, 26.
tence; as, when the patient imagines that he sees
an object when there is none, or hears a voice or
other sound when nothing strikes his ear. See
Staples v. Wellington, 58 Me. 459; McNett v.
Cooper, C.C.Mich., 13 F. 590; People v. Krist, 168
N.Y. 19, 60 N.E. 1057.
It was sometimes used to designate a convention of
citizens in their public hall and was also called folkmote
and halimote. The word halimote rather signifies the
lord's court or a court baron held in a manor in which the
differences between the tenants were determined. Cunn.
L.Dict.; Cowell.
"Furthermore, it seems to have been a common practice
for a wealthy abbey to keep a court, known as a halimote,
on each of its manors, while in addition to these manorial
courts it kept a central court, a libera curia for all its
greater freehold tenants. And we may now and again
meet with courts which are distinctly called courts of honors. The rule then was not merely this, that the lord of
a manor may hold a court for the manor; but rather this,
that a lord may hold a court for his tenants." 1 Poll. &
Mai tl. 573.
An error, a blunder, a mistake, a fallacy; and
when used in describing the condition of a person,
does not necessarily carry an imputation of insanity. Foster's Ex'rs v. Dickerson, 64 Vt. 233, 24
A. 253.
HALIMAS. In English law, the feast of All
Saints, on the 1st of November; one of the crossquarters of the year, was computed from Halimas
to Candlemas. Wharton.
HALIWORKFOLK. See Halywercfolk.
HALL. A building or room of considerable size,
used as a place for the meeting of public assemblies, conventions, courts, etc.; as, the city hall,
the town hall.
In English law, a name given to many manorhouses because the magistrate's court was held
in the hall of his mansion; a chief mansion-house.
Cowell.
Hence, hall day, a court day.
HALL-MARK. An official stamp affixed by the
goldsmiths upon articles made of gold or silver
as an evidence of genuineness, and hence used to
signify any mark of genuineness. "The power of
free alienation is the 'hall-mark' of a fee-simple
absolute." Rand. Em. Dom. § 206.
HALLAGE. In old English law, a fee or toll due
for goods or merchandise vended in a hall. Jacob;
6 Co. 62.
A toll due to the lord of a fair or market, for
such commodities as were vended in the common
hall of the place. Cowell; Blount.
HALLAZCO. In Spanish law, the finding and taking possession of something which previously had
no owner, and which thus becomes the property
of the first occupant. Las Partidas, 3, 5, 28; 5, 48,
49; 5, 20, 50.
HALLE-GEMOTE. In Saxon law, haligemot (q.
V.).
HALLMOOT. See Haligemot.
HALLUCINATION. In medical jurisprudence, a
trick or deceit of the senses; a morbid error either of the sense of sight or that of hearing, or
possibly of the other senses; a psychological state,
such as would be produced naturally by an act of
sense-perception, attributed confidently, but mistakenly, to something which has no objective exis-
The perception by any of the senses of an object which
has no existence. The conscious recognition of a sensation
of sight, hearing, feeling, taste, or smell which is not due
to any impulse received by the perceptive apparatus from
without, but arises within the perceptive apparatus itself.
A false perception in contradistinction to a delusion or
false belief. Wood, Am. Text-Book of Med.
Hallucinations are tricks of the senses, differing from delusions in that hallucinations pass away while delusions
remain. Bensberg v. Washington University, 251 Mo. 641,
158 S.W. 330, 333.
HALMOTE. See Haligemot.
HALYMOTE. A holy or ecclesiastical court.
A court held in London before the lord mayor
and sheriffs, for regulating the bakers.
It was anciently held on Sunday next before St.
Thomas' day, and therefore called the "holymote,"
or holy court. Cowell.
HALYWERCFOLK. Sax. In old English law,
tenants who held land by the service of repairing
or defending a church or monument, whereby
they were exempted from feudal and military
services. Especially in the county of Durham,
those who held by service of defending the corpse
of St. Cuthbert. Jacob, Law Dict.
HAM. A place of dwelling; a homeclose; a little
narrow - meadow. Blount. A house or little village. Cowell.
HAMA. In old English law, a hook; an engine
with which a house on fire is pulled down. Yel.
60.
A piece of land.
HAMBLING, or HAMELING. In forest law, the
hoxing or hock-sinewing of dogs; an old mode of
laming or disabling dogs. Termes de la Ley. Expeditation (q. v.).
HAMEL, HAMELETA, or HAMLETA. A hamlet.
HAMESECKEN. In Scotch law, the violent entering into a man's house without license or against
the peace, and the seeking and assaulting him
there. Skene de Verb. Sign.; 2 Forb. Inst. 139.
The crime of housebreaking or burglary. 4 Bl.
Comm. 223. Spelled, also, "hamesucken."
The common genus of offences that comes under the
name of hamesucken is that which is usually called housebreaking; which sometimes comes under the common
appellation of burglary, whether committed in the day or
night to the intent to commit felony; so that house-breaking of this kind is of two natures. 1 Hale, P1.Cr. 547;
Com. v. Hope, 22 Pick., Mass., 4.
See also, Hamsocne.
844
IIANDSALE
In the plural, the term may be synonymous with
"possession"; as, the "hands" of an executor,
garnishee, etc. Brownwood Gas Co. v. Belser, Tex.
Civ.App., 257 S.W. 605, 607.
In old English law, an oath. For the meaning
of the terms "strong hand" and "clean hands,"
see those titles.
HAMFARE. (Sax. From ham, a house.) In
Saxon law, an assault made in a house; a breach
of the peace in a private house. Cowell. This
word by some is said to signify the freedom of a
man's house. Holthouse. See, also, Hamsocne.
HAMLET. A small village; a part or member
of a vill. It is the diminutive of "ham," a village.
Cowell. See Rex v. Morris, 4 Term, 552.
A "village" or "hamlet" in a rural community may be no
more than a store, a school, a church, and two or three
residences. Rantoul Rural High School Dist. No. 2, Franklin County, v. Davis, 99 Kan. 185, 160 P. 1008, 1009.
HAMMA. A close joining to a house; a croft;
a little meadow. Cowell.
HAMMER. Metaphorically, a forced sale or sale
at public auction. "To bring to the hammer," to
put up for sale at auction. "Sold under the hammer," sold by an officer of the law or by an auctioneer.
HAND DOWN. To announce or file an opinion
in a cause. Used originally and properly of the
opinions of appellate courts transmitted to the
court below; but in later usage the term is employed more generally with reference to any decision by a court upon a case or point reserved
for consideration.
HAND-FASTING. In old English law, betrothment.
HAMSOCNE. In Saxon law, the word is variously spelled hamsoca, hamsocna, haimsuken, hamesaken, hamsocn. The right of security and privacy in a man's house. Du Cange. The breach of
this privilege by a forcible entry of a house is
breach of the peace. Anc. Laws & Inst. of Eng.
Gloss.; Du Cange; Bracton, lib. 3, tr. 2, c. 2, § 3.
The right to entertain jurisdiction of the offence.
Spelman; Du Cange. Immunity from punishment
for such offence. Du Cange; Fleta, lib. 1, c. 47, §
18. An insult offered in one's own house (insultus
factus in domo). Brompton, p. 957; Du Cange.
Among the Anglo-Saxons it was breaking into
a house; perhaps the time of the day was not an
element. See 3 Holdsw. Hist. E. L. 293; 2 Poll.
& Maitl. 492. See, also, Hamesecken.
HANAPER. A hamper or basket in which were
kept the writs of the court of chancery relating
to the business of a subject, and their returns; 5
& 6 Vict. c. 113; 10 Ric. II. c. 1; 3 Bl.Comm. 49;
equivalent to the Roman fiscus. According to
others, the fees accruing on writs, etc., were there
kept. Spelman; Du Cange.
HANAPER-OFFICE. An office belonging to the
common-law jurisdiction of the court of chancery,
so called because all writs relating to the business
of a subject, and their returns, were formerly kept
in a hamper, in hanaperio. 5 & 6 Vict. c. 103.
See Yates v. People, 6 Johns., N.Y., 363.
HAND. A measure of length equal to four inches,
used in measuring the height of horses.
A person's signature. Salazar v. Taylor, 18 Colo.
538, 33 P. 369; 10 Mod. 103.
In anatomical usage the hand, or manus, includes the phalanges, or fingers and thumb; the
metacarpus, or hand proper; and the carpus, or
wrist; but in popular usage the wrist is often excluded. Champlin Refining Co. v. State Industrial
Commission, 153 Okl. 45, 4 P.2d 751, 752. The
arm up to but not including the elbow. Gondak v.
Wilson Gas Coal Co., 148 Pa.Super. 566, 25 A.2d
854, 855.
HAND-GRITH. Peace or protection given by the
king with his own hand; used in the laws of
Henry I. Tomlin; Cowell; Moz. & W.; Stat,
Hen. I. c. 13.
HAND MONEY. Money paid in hand to bind a
bargain; earnest money, when it is in cash.
HANDBILL. A written or printed notice displayed to inform those concerned of something
to be done. Kelly v. Board of Trustees of Evarts
Common Graded School Dist., 162 Ky. 612, 172
S.W. 1047, 1048; People v. McLaughlin, 33 Misc.
691, 68 N.Y.S. 1108.
HANDBOROW. In Saxon law, a hand pledge; a
name given to the nine pledges in a decennary or
friborg; the tenth or chief, being called "headborow," (q. v.). So called as being an inferior
pledge to the chief. Spelman.
HANDCUFFS. See Fetters,
HANDLE. To control, direct, to deal with, to act
upon, to perform some function with regard to or
to have passed through one's hands, to buy and
sell, or to deal or trade in. State ex rel. Bell v.
Phillips Petroleum Co., 349 Mo. 360, 160 S.W.2d
764, 769. To manage or •operate. The term includes the act of placing a truck on a depot platform for the purpose of loading. Wells Fargo
& Co. v. Lowery, Tex.Civ.App., 197 S.W. 605, 608.
HANDHABEND, or HAND-HABENDE. In Saxon law, one having a thing in his hand; that is, a
thief found having the stolen goods in his possession. Jurisdiction to try such thief. See Laws of
Hen. I. c. 59; Laws of Athelstane § 6;' Fleta, lib.
1, c. 38, § 1; Britton p. 72; Du Cange, Handhabenda. See, also, Backberend.
HANDSALE. Anciently, among all the northern
nations, shaking of hands was held necessary to
bind a bargain,—a custom still retained in verbal
contracts. A sale thus made was called "handsale," (venditio per mutuam manum complexionem.) In process of time the same word was used
to signify the price or earnest which was given immediately after the shaking of hands, or instead
thereof. 2 Bl.Comm. 448.
845
HANDSEL
HANDSEL. Handsale, or earnest money.
HANDWRITING. The chirography of a person;
Merchandise known as grass cloth, made by pasting a
fabric of weed bark sewed with cotton thread on a paper
backing and dyeing the surface, imported to be used as
wall hangings, is dutiable as dyed hanging paper. Downing & Co. v. U. S., 12 Ct.Cust.App. 451.
the cast or form of writing peculiar to a person, including the size, shape, and style of letters, tricks
of penmanship, and whatever gives individuality
to his writing, distinguishing it from that of other
persons. In re Hyland's Will, 1 Gib. 41, 58 St.R.
798, 27 N.Y.S. 961, 963.
HANGWITE.
Anything written by hand; an instrument written by the hand of a person, or a specimen of his
writing.
HANIG.
Handwriting, considered under the law of evidence,
includes not only the ordinary writing of one able to write,
but also writing done in a disguised hand, or in cipher, and
a mark made by one able or unable to write. 9 Amer. &
Eng.Enc.Law, 264. See Com. v. Webster, 5 Cush., Mass.,
301, 52 Am. Dec. 711.
Typewriting is not "handwriting" within a statute allowing experts' opinions as to who executed a writing. Wolf
v. Gall, 176 Cal. 787, 169 P. 1017, 1019.
HANDY MAN.
A man of all work. Sovereign
Camp, W. 0. W., v. Craft, 208 Ala. 467, 94 So. 831,
834.
HANG.
In old practice, to remain undetermined.
"It has hung long enough; it is time it were made
an end of." Holt, C. J., 1 Show. 77.
Thus, the present participle means pending; during the pendency. "If the tenant alien, hanging
the prcecipe."
Co.Litt. 266a. Remaining undetermined. 1 Show. 77.
HANGED, DRAWN AND QUARTERED.
A method of executing traitors in England, said to have
been introduced in 1241. The traitor was carried
on a sled, or hurdle to the gallows (formerly
dragged there tied to the tail of a horse) ; hanged
till half dead and then cut down; his entrails cut
out and burnt; his head cut off and his body to be
divided into quarters, which, with his head, were
hung in some public place. In practice the executioner usually cut out the heart and held it up to
view. See Andrews, Old Time Punishments; 1
Eng.Rep. 87.
HANGING. In criminal law, suspension by the
neck; the mode of capital punishment used in
England from time. immemorial, and generally
adopted in the United States. 4 Bl.Comm. 403.
HANGING IN CHAINS.
In atrocious cases it was
at one time usual, in England, for the court to
direct a murderer, after execution, to be hanged
upon a gibbet in chains near the place where the
murder was committed, a practice quite contrary
to the Mosaic law. (Deut. xxi. 23.) Its legality
was declared by acts in 1751 and 1828. Abolished
by 4 & 5 Wm. IV, c. 26. Wharton.
HANGING PAPER.
Ordinarily, paper for hanging or hangings, or paper which hangs. Within
the meaning of the Tariff Act (19 U.S.C.A. § 121),
paper used for covering walls, ceiling, etc., whether such paper is tinted or decorative or not ,—a.
more inclusive term than "paper hangings," meaning tinted or decorative paper used for the purpose mentioned. Downing & Co. v. U. S., 12 Ct.
Cust.App. 451, 454.
HANGMAN.
An executioner. One who executes
condemned criminals by hanging.
In Saxon law, a fine for illegal
hanging of a thief, or for allowing him to escape.
Immunity from such fine. Du Cange.
Some customary labor to be performed.
Holthouse.
HANSE.
An alliance or confederation among merchants or cities, for the good ordering and protection of the commerce of its members. An imposition upon merchandise. Du Cange.
HANSE TOWNS.
The collective name of certain
German cities, including Lubeck, Hamburg, and
Bremen, which formed an alliance for the mutual
protection and furtherance of their commercial
interests, in the twelfth century. The powerful
confederacy thus formed was called the "Hanseatic
League." The league framed and promulgated
a code of maritime law, which was known as the
"Laws of the Hanse Towns," or Jus Hanseaticum
Maritimum.
The years 1356 to 1377 marked the zenith
of the league's power. The league gradually
declined till, in 1669, the last general assembly was held and Lubeck, Hamburg and Bremen
were left alone to preserve the name and small
inheritance of the "Hansa."
HANSE TOWNS, LAWS OF THE.
The maritime
ordinances of the Hanseatic towns, first published
in German at Lubeck, in 1597, and in May, 1614,
revised and enlarged.
HANSEATIC. Pertaining to a hance or commercial alliance; but, generally, the union of the
Hanse towns is the one referred to, as in the expression the "Hanseatic League."
HANSGRAVE.
The chief of a company; the head
man of a corporation.
HAOLE. White foreign. Refers to rank rather
than to race. International Longshoremen's &
Warehousemen's Union v. Ackerman, D.C.Hawaii,
82 F.Supp. 65, 76.
HANTELOD, or HANTELODE. In old European
law, an arrest, or attachment. Spelman; Du
Cange; Toml.; Holthouse.
HAP.
To catch. Thus, "hap the rent," "hap the
deed-poll," were formerly used.
HAPPINESS. Comfort, consolation, contentment,
ease, enjoyment, pleasure, satisfaction. National
Surety Co. v. Jarrett, 121 S.E. 291, 295, 95 W.Va,
420.
The constitutional right of men to pursue their "happiness" means the right to pursue any lawful business or
vocation, in any manner not inconsistent with the equal
rights of others, which may increase their prosperity, ordevelop their faculties, so as to give to them their highest
846
HARMONIC
enjoyment.. Butchers' Union Co. v. Crescent City Co., 111
U.S. 757, 4 S.Ct. 652, 28 L.Ed. 585; 1 Bl.Comm. 41. English v. English, 32 N.J.Eq. 750.
HAQUE. In old statutes, a hand-gun, about threequarters of a yard long.
HARACIUM. In old English law, a race of horses
and mares kept for breed; a stud. Spelman.
HARBINGER. In England, an officer of the royal
household.
HARBOR, n. A haven, or a space of deep water
so sheltered by the adjacent land as to afford a
safe anchorage for ships. Rowe v. Smith, 51 Conn.
271, 50 Am.Rep. 16; The Aurania, D.C.N.Y., 29 F.
103; People v. Kirsch, 67 Mich. 539, 35 N.W. 157;
The Cuzco, D.C.Wash., 225 F. 169, 176. A port or
haven for ships; a sheltered place, natural or artificial, on the coast of a sea, lake, or other body of
water. State v. Savidge, 95 Wash. 240, 163 P.
738, 740.
"Port" is a word of larger import than "harbor," since
it implies the presence of wharves, or at any rate the means
and opportunity of receiving and discharging cargo. See
7 M. & G. 870; Martin v. Hilton, 9 Metc., Mass., 371; 2
B. & Ald. 460. Thus, we have the "said harbor, basin,
and docks of the port of Hull." 2 B. & Ald. 60. But they
are generally used as synonymous. Webster, Diet.
HARBOR, v. To afford lodging to, to shelter, or
to give a refuge to. Hancock v. Finch, 126 Conn.
121, 9 A.2d 811. To clandestinely shelter, succor,
and protect improperly admitted aliens. Susnjar
v. U. S., C.C.A.Ohio, 27 F.2d 223, 224. To receive
clandestinely and without lawful authority a person for the purpose of so concealing him that another having a right to the lawful custody of such
person shall be deprived of the same. Jones v.
Van Zandt, 5 How. 215, 227, 12 L.Ed. 122. Or, in a
less technical sense, it is the reception of persons
improperly. Poll.Torts 275; Wood v. Gale, 10
N.H. 247, 34 Am.Dec. 150; Eells v. People, 4 Scam.,
Ill., 498. It may be aptly used to describe the furnishing of shelter, lodging, or food clandestinely or
with concealment, and under certain circumstances, may be equally applicable to those acts
divested of any accompanying secrecy. U. S. v.
Grant, C.C.Or., 55 F. 415.
As used in U. S. Criminal Code, § 42, 18 U.S.C.A. § 1381,
the word "harbor" means to lodge, to care for, after
secreting the deserter. Firpo v. U. S., C.C.A.N.Y., 261 F.
850, 853.
To "harbor" a dog involves the idea of protection, and
of treating it as living at one's house, and undertaking to
control its actions. Hagenau v. Millard, 182 Wis. 544, 195
N.W. 718, 719. See, also, Markwood v. McBroom, 110
Wash. 208, 188 P. 521, 522.
HARBOR AUTHORITY. In England a harbor authority is a body of persons, corporate or unincorporate, being proprietors of, or intrusted with the
duty of constructing, improving, managing, or
lighting, any harbor. St. 24 & 25 Viet. c. 47.
HARBOR LINE. A line marking the boundary of
a certain part of a public water which is reserved
for a harbor. Engs v. Peckham, 11 R.I. 224. The
line beyond which wharves and other structures
cannot be extended. Garrison v. Greenleaf Johnson Lumber Co., C.C.A.Va., 215 F. 576, 579.
HARD. As applied to liquors, rough; acid; sour.
In re Stiller, 161 N.Y.S. 594, 597, 175 App.Div. 211.
HARD CASES. A , phrase used to indicate decisions which, to meet a case of hardship to a party,
are not entirely consonant with the true principle
of the law. It is said of such: Hard cases make
bad law. Hard cases must not make bad equity
any more than bad law; Moore v. Pierson, 6
Iowa 279, 71 Am.Dec. 409. Hard cases are the
quicksands of the law. Metropolitan Nat. Bank of
Kansas City, Mo. v. Campbell Commission Co.,
C.C.Mo., 77 F. 705.
HARD CIDER. Cider which has lost its sweetness from fermentation—fermented cider possessing a stimulating and intoxicating effect, due to its
acquisition of a substantial and potent alcoholic
content, through fermentation. People v. Emmons, 178 Mich. 126, 144 N.W. 479, 481, Ann.Cas.
1915D, 425.
HARD LABOR. A punishment,. additional to mere
imprisonment, sometimes imposed upon convicts
sentenced to a penitentiary. But the labor is not,
as a rule, any harder than ordinary mechanical
labor. Thompson v. State, 19 Ala.App. 328, 97 So.
258, 260. Compulsory labor. In re Danton, 108
Kan. 451, 195 P. 981, 983.
HARD MONEY. Lawful coined money. Henry v.
Bank of Salina, 5 Hill (N.Y.) 523, 536.
HARD OF HEARING. A relative term, applied
to one that cannot hear as well as one possessing
normal faculties of hearing or does not hear as
well as the average person. Sharps v. Jones, 100
W.Va. 662, 131 S.E. 463, 464.
HARDHEIDIS. In Old Scotch law, lions; coins
formerly of the value of three half-pence. 1 Pitc.
Crim.Tr. pt. 1, p. 64, note.
HARDPAN. Any earth not popularly recognized
as rock through which it is hard to dig or to make
excavation of any sort. It may be: (1) Semiindurated clay, with or without admixture of stony
matter; (2) cemented gravel; or (3) clay, with
or without admixture of stony matter, which is
very tough because of its strong cohesion. Baker
v. Multnomah County, 118 Or. 143, 246 P. 352, 355.
HARDSHIP. The severity with which a proposed
construction of the law would bear upon a particular case, founding, sometimes, an argument
against such construction, which is otherwise
termed the "argument ab inconvenienti." See
Hard Cases.
HARIOT. The same as heriot (q. v.) Cowell;
Termes de la Ley. Sometimes spelled Harriott.
Wms. Seis. 203.
HARMFUL or HARMLESS ERROR. See Error.
HARMONIC PLANE. The zero adopted by the
United States Coast and Geodetic Survey of the
Department of Commerce upon which its tidal
tables, charts, and maps are based. It is an arbitrary plane, and, in Puget Sound, is the lowest
847
HARMONIZE
plane of the tide recognized by that department.
State v. Scott, 89 Wash. 63, 154 P. 165, 168.
HARMONIZE. Though not strictly synonymous
with the word "reconcile," it is not improperly used
by a court in instructing the jury that it is their
duty to "harmonize" conflicting evidence if possible. Holdridge v. Lee, 3 S.D. 134, 52 N.W. 265.
HARMONY. The phrase "in harmony with" is
synonymous with "in agreement, conformity, or
accordance with." Brown Real Estate Co. v. Lancaster County, 110 Neb. 665, 194 N.W. 897, 898.
HARNASCA. In old European law, the defensive
armor of a man; harness. 'Spelman.
HARNESS. The defensive armor of a soldier or
knight. All warlike instruments. In modern poetical sense, a suit of armor. Sometimes, the trappings of a war-horse.
The tackle or furniture of a ship.
HARO, HARRON. Fr. In Norman and early
English law, an outcry, or hue and cry after felons
and malefactors. Cowell. The original of the
clamour de haro comes from the Normans. Moz.
& W.
HARRIOTT. The old form of "heriot," (q. v.)
Williams, Seis. 203.
HART. A stag or male deer of the forest, generally over five years old.
HARTER ACT. A name commonly applied to the
act of congress of February 13, 1893, c. 105, providing; (§ 1) that agreements in a bill of lading relieving the owner, etc., of a vessel sailing between
the United States and foreign ports, from liability
for negligence or fault in proper loading, storage,
custody, care, or delivery of merchandise, are void
(46 U.S.C.A. § 190) ; (§ 2) that no bill of lading
shall contain any agreement whereby the obligations of the owner to exercise due diligence, properly equip, man, provision and outfit a vessel and
make it seaworthy, and whereby the obligations of
the master, etc., carefully to handle, store, care
for and deliver the cargo, are in any way lessened,
weakened or avoided (46 U.S.C.A. § 191) ; ( § 3)
that if the owner shall exercise due diligence to
make such vessel in all respects seaworthy and
properly manned, equipped and supplied, neither
the xessel nor her owners, etc., shall be liable for
loss resulting from faults or errors in navigation
or management, nor for losses arising from dangers of the sea, acts of God, or public enemies, or
the inherent defect of the thing carried, or insufficiency of package, or seizure under legal process, or any act or omission of the shipper of the
goods, or from saving or attempting to save life
at sea, or deviation in rendering such service (46
U.S.C.A. § 192).
crop, the rent of live stock, implements, and the
cost of labor. Betts v. Orton, 34 Cal.App. 397, 167
P. 1147, 1148.
HASP AND STAPLE. In old Scotch law, the form
of entering an heir in a subject situated within a
royal borough. It consisted of the heir's taking
hold of the hasp and staple of the door (which was
the symbol of possession,) with other formalities.
Bell; Burrill. A mode of entry in Scotland by
which a bailee declared a person heir on evidence
brought before himself, at the same time delivering the property over to him by the hasp and staple of the door. Bell; Ersk.Pr. 433.
HASPA. In old English law, the hasp of a door;
by which livery of seisin might anciently be made,
where there was a house on the premises.
HASTA. Lat. A spear. In the Roman law, a
spear was the sign of a public sale of goods or
sale by auction. Hence the phrase "hastce subjicere" (to put under the spear) meant to put up
at auction. Calvin.
In feudal law, a spear, the symbol used in making investiture of a fief. Feud. lib. 2, tit. 2.
HAT MONEY. In maritime law, primage; a small
duty paid to the captain and mariners of a ship.
HATCH. A nautical term, generally signifying
an opening in the deck of a ship. State v. Armstrong, 97 Neb. 343, 149 N.W. 786, 788, Ann.Cas.
1917A, 554.
HATCHWAY. Specifically, an opening in the
deck of a boat; hence any similar opening, as in
a floor or sidewalk; a trapdoor. Kelly v. Theo.
Hamm Brewing Co., 140 Minn. 371, 168 N.W. 131,
132. The term is inapplicable to the head of a
stairway; Peterson v. Shapiro, 171 Minn. 408, 214
N.W. 269, 270; or to basement ways; State v.
Armstrong, 97 Neb. 343, 149 N.W. 786, 788, Ann.
Cas.1917A, 554.
HAUBER. 0. Fr. A high lord; a great baron.
Spelman.
HAUBERK. A long coat or tunic of ring or chain
mail. Sometimes applied loosely to a habergeon
(q. v.).
HAUGH, HOUGH, or HOWGH. Low-lying rich
lands, lands which are occasionally overflowed.
Encyc.Dict. A green plot in a valley.
HAUL. To pull or draw with force; to drag; to
transport by hauling. Denius v. North Dakota
Workmen's Compensation Bureau, 68 N.D. 506, 281
N.W. 361, 363.
HAULA. See Aula.
HARVESTING. The gathering of crops of any
kind. Cook v. Massey, 38 Idaho 264, 220 P. 1088,
1091.
HAULAGE ROYALTY. Damages at a certain
amount per ton for coal from adjacent lands
hauled through subterranean passageways of lessor's land. Quality Excelsior Coal Co. v. Reeves,
206 Ark. 713, 177 S.W.2d 728, 732.
HARVESTING EXPENSES. Includes expenses
for repairs of machinery used in harvesting the
HAULM. See Helm.
848
HAZAR-ZAMIN
wealth v. Bergeron, 296 Mass. 60, 5 N.E.2d 31, 32.
A peddler who uses beast of burden to carry wares
and who cries out merits of wares in street. City
of Washington v. Reed, 229 Mo.App. 1195, 70 S.W.
2d 121, 122. See Hawking.
HAUR. In old English law, hatred. Used in the
laws of William the Conqueror. Toml.; Leg.Wm.
I. c. 16; Blount.
HAUSTUS. Lat. In the civil law, a species of
servitude, consisting in the right to draw water
from another's well or spring, in which the iter,
(right of way to the well or spring,) so far as it
is necessary, is tacitly included. Dig. 8, 3, 1;
Mackeld.Rom.Law, § 318; Fleta, 1. 4, c. 27, § 9.
It is perhaps not essential to the idea, but is generally
understood from the word, that a hawker is to be one who
not only carries goods for sale, but seeks for purchasers,
either by outcry, which some lexicographers conceive as
intimated by the derivation of the word, or by attracting
notice and attention to them, as goods for sale, by an
actual exhibition or exposure of them, by placards or
labels, or by a conventional signal, like the sound of a
horn for the sale of fish. Graffty v. Rushville, 107 Ind. 502,
8 N.E. 609, 57 Am. Rep. 128.
One who goes about a village carrying samples and taking orders for a non-resident firm is not a hawker or peddler. Village of Cerro Gordo v. Rawlings, 135 Ill. 36, 25
N.E. 1006.
HAUT CHEMIN. L. Fr. Highway. Yearb. M.
4 Hen. VI. 4.
HAUT ESTRET. L. Fr. High street; highway.
Yearb. P. 11 Hen. VI. 2.
HAUTHONER. In old English law, a man armed
with a coat of mail. Jacob.
HAWKING. The act of offering goods for sale on
the streets by outcry or by attracting the attention
of persons by exposing goods in a public place, or
by placards, labels, or signals. Pastorino v. City
of Detroit, 182 Mich. 5, 148 N.W. 231, 235, Ann.
Cas.1916D, 768.
HAVE. Lat. A form of the salutatory expression
"Ave," used in the titles of some of the constitutions of the Theodosian and Justinian Codes. See
Cod. 7, 62, 9; Id. 9, 2, 11.
HAVE. Imports ownership, and has been defined
to mean "to keep," "to hold in possession," "to
own." Busteed v. Cambridge Sa y . Bank, 306 Mass.
9, 26 N.E.2d 983, 986. To bear (children). Nickerson v. Hoover, 70 Ind.App. 343, 115 N.E. 588, 593.
To possess corporally. Walker v. Trollinger, 192
N.C. 744, 135 S.E. 871, 873.
The business of peddling is distinct from that of a manufacturer selling his own products, and those who raise or
produce what they sell, such as farmers and butchers, are
not peddlers. Ex parte Hogg, 70 Tex.Cr.R. 161, 156 S.W.
931, 932. The occupation of a dairyman, going about delivering the milk from his farm to his regular customers
according to their previous orders, is not, within the ordinary meaning of the term, peddling or hawking. State ex
rel. Brittain v. Hayes, 143 La. 39, 78 So. 143, 144.
"No one, at common law, was said to have or to be in
possession of land, unless it were conveyed to him by the
livery of seisin, which gave him the corporal investiture
and bodily occupation thereof." Bl.Law Tracts, 113.
HAY. Commonly means grasses or seeds which
have been harvested. Sandall v. Hoskins, 104 Utah
50, 137 P.2d 819, 823. In statute, term does not
apply to the stalks, stems, and other residue, left
after bean plants have been threshed and the bean
kernel or seeds -removed. State v. Choate, 41 Idaho 251, 238 P. 538, 540.
HAVE AND HOLD. A common phrase in conveyancing, derived from the habendum et tenendum of the old common law. See Habendum et
Tenendum.
HAVEN. A place of a large receipt and safe riding of ships, so situate and secured by the land
circumjacent that the vessels thereby ride and
anchor safely, and are protected by the adjacent
land from dangerous or violent winds; as Milford
Haven, Plymouth Haven, and the like. Hale de
Jure Mar. par. 2, c. 2; The Cuzco, D.C.Wash., 225
F. 169, 176; 15 East 304, 305. Lowndes v. Board
of Trustees, 14 S.Ct. 758, 153 U.S. 1, 38 L.Ed. 615;
De Lovio v. Boit, 7 Fed.Cas. 429.
HAW. A small parcel of land so called in Kent;
houses. Co.Litt. 5; Cowell.
HAWBERK, or HAWBERT. A coat or shirt of
mail; hence, derivatively (in feudal law) one who
held a fief on the duty or service of providing himself with such armor and standing ready, thus
equipped, for military service when called on.
Wharton. See Fief d'Haubert.
HAWGH, HOWGH. In old English law, a valley.
Co.Litt. 5b. See Haugh.
HAWKER. An itinerant or traveling trader, who
carries goods about, in order to sell them, and who
actually sells them to purchasers, in contradistinction to a trader who has goods for sale and
sells them in a fixed place of business. CommonBlack's Law Dictionary Revised 4th Ed.-54
HAY IN STACK. A stack of hay, grain, straw,
or the like is a large quantity thereof collected
and usually built up in layers in conical, oblong,
or rectangular form to a point or ridge at the top
so that it will be preserved against the inclemencies of the weather. A policy covering "hay in
stack" does not cover hay in the mow of a barn.
Murphy v. Continental Ins. Co., 178 Iowa 375, 157
N.W. 855, 856, L.R.A.1917B, 934.
HAY-BOTE. Another name for "hedge-bote," being one of the estovers allowed to a tenant for life
or years, namely, material for repairing the necessary hedges or fences of his grounds, or for
making necessary farming utensils. 2 Bl.Comm.
35; 1 Washb.Real Prop. 129.
HAYWARD. In old English law, an officer appointed in the lord's court to keep a common herd
of cattle of a town; so called because he was to
see that they did not break or injure the hedges of
inclosed grounds. His duty was also to impound
trespassing cattle, and to guard against poundbredches. Kitch. 46; Cowell. Adams v. Nichols,
1 Aikens (Vt.) 319.
HAZAR-ZAMIN. A bail or surety for the personal attendance of another. Moz. & W.
849
HAZARD
HAZARD. In old English law, an unlawful game
at dice, those who play at it being called "hazardors." Jacob.
In modern law, any game of chance or wagering.
Cheek v. Corn., 100 Ky. 1, 37 S.W. 152; Somers v.
State, 5 Sneed (Tenn.) 438.
A risk or peril, assumed or involved, whether in
connection with contract relation, personal relation, or golf or gambling. State v. Hagan, 44 N.D.
306, 175 N.W. 372, 377. A danger or risk lurking
in a situation which by change or fortuity develops into an active agency of harm. Hough v. Contributory Retirement Appeal Board, 309 Mass. 534,
36 N.E.2d 415, 417, 418. Exposure to the chance of
loss or injury. Caminetti v. Guaranty Union Life
Ins. Co., 52 Cal.App.2d 330, 126 P.2d 159, 163.
A stationary unlighted freight train upon a railroad
crossing at night. Plante v. Canadian Nat. Rys., 138 Me.
215, 23 A.2d 814, 817. An accident incidental to or result of
an act done while in the course of one's employment. Tipple v. High Street Hotel Co., 70 Ohio App. 397, 41 N.E.2d
879, 885.
In insurance law, the risk, danger, or probability that the event insured against may happen,
varying with the circumstances of the particular
case. See State Ins. Co. v. Taylor, 14 Colo. 499, 24
P. 333, 20 Am.St.Rep. 281.
Moral hazard. In fire insurance, the risk or
danger of the destruction of the insured property
by fire, as measured by the character and interest
of the insured owner, his habits as a prudent and
careful man or the reverse, his known integrity
or his bad reputation, and the amount of loss he
would suffer by the destruction of the property
or the gain he would make by suffering it , to burn,
and collecting the insurance. Davenport v. Firemen's Ins. Co. of Newark, N. J., 47 S.D. 426, 199
N.W. 203, 205.
HAZARDOR. In old English law, one who played
at a hazard, i. e., an unlawful game of dice. Jacob.
HAZARDOUS. Exposed to or involving danger;
perilous; risky.
Involving risk of loss. Caminetti v. Guaranty
Union Life Ins. Co., 52 Cal.App.2d 330, 126 P.2d
159, 162, 163.
The terms "hazardous," "extra-hazardous," "specially
hazardous," and "not hazardous" are well-understood
technical terms in the business of insurance, having distinct and separate meanings. Although what goods are
included in each designation may not be so known as to
dispense with actual proof, the terms themselves are distinct and known to be- so. Russell v. Insurance Co., 50
Minn. 409, 52 N.W. 906.
HAZARDOUS CONTRACT. See Contract.
HAZARDOUS INSURANCE. Insurance effected
on property which is in unusual or peculiar danger of destruction by fire, or on the life of a man
whose occupation exposes him to special or unusual perils.
HAZARDOUS NEGLIGENCE. See Negligence.
HE. Properly a pronoun of the masculine gender,
but commonly construed in statutes to include
both sexes as well as corporations. Dickson v.
Strickland, 114 Tex. 176, 265 &W. 1012, 1021; City
of Janesville v. Tweedell, 217 Wis. 395, 258 N.W.
437. May be read "they". Buono v. Yankee Maid
Dress Corporation, C.C.A.N.Y., 77 F.2d 274, 278.
HE WHO COMES INTO A COURT OF EQUITY
MUST COME WITH CLEAN HANDS.
HE WHO HAS COMMITTED INIQUITY SHALL
NOT HAVE EQUITY. Francis, Max.
HE WHO IS SILENT WHEN CONSCIENCE REQUIRES HIM TO SPEAK SHALL BE DEBARRED FROM SPEAKING WHEN CONSCIENCE
REQUIRES HIM TO BE SILENT.
HE WHO SEEKS EQUITY MUST DO EQUITY.
This expression means that the party asking the
aid of an equity court must stand in a conscientious relation toward his adversary and the transaction from which his claim arises must be fair
and just and the relief must not be harsh and oppressive upon defendant. Jacklich v. Baer, 57 Cal.
App.2d 684, 135 P.2d 179, 184. And that court will
not confer equitable relief on party seeking its aid,
unless he has acknowledged and conceded or will
admit and provide for all equitable rights, claims,
and demands justly belonging to adverse party
and growing out of or necessarily involved in subject matter of controversy. Bates v. Dana, 345
Mo. 311, 133 S.W.2d 326, 329. It is in pursuance of
this maxim that equity enforces the right of the
wife's equity to a settlement. Snell, Eq. (5th Ed.)
374. Drake v. Sherman, 67 Ill.App. 440.
HE WHO WILL HAVE EQUITY DONE TO HIM
MUST DO EQUITY TO THE SAME PERSON. 4
Bouv.Inst. 3723.
HEAD. Chief; leading; principal; the upper
part or principal source of a stream.
The principal person or chief of any organization, corporation, or firm.
HEAD MONEY. A sum of money reckoned at a
fixed amount for each head (person) in a designated class.
Particularly (1) a capitation or poll tax. (2) A bounty
offered by the laws of the United States for each person on
board an enemy's ship or vessel, at the commencement of a
naval engagement, which shall be sunk or destroyed by a
ship or vessel of the United States of equal or inferior
force, the same to be divided among the officers and crew
in the same manner as prize money. In re Farragut, 7 D.C.
97. A similar reward is offered by the British statutes. (3)
The tax or duty imposed by act of congress of Aug. 3, 1882,
on owners of steamships and sailing vessels for every immigrant brought into the United States. Head Money Cases,
112 U.S. 580, 5 Sup.Ct. 247, 28 L.Ed. 798. (4) A bounty or
reward paid to one who pursues and kills a bandit or outlaw and produces his head as evidence; the offer of such a
reward being popularly called "putting a price on his
head."
HEAD OF A FAMILY. An individual who actually supports and maintains in one household one
or more individuals who are closely connected
with him by blood relationship, relationship by
marriage, or by adoption, and whose right to exercise family control and provide for the dependent
individuals is based upon some moral or legal obligation. Miller v. Glenn, D.C.Ky., 47 F.Supp. 794,
796, 797.
850
HEALSFANG
HEADLAND. In old English law, a narrow piece
of unplowed land left at the end of a plowed field
for the turning of the slow. Called, also, "Butt."
2 Leon. 70, case 93; 1 Litt. 13.
A term used in homestead and exemption laws to designate a person who maintains a family; a householder. Not
necessarily a husband or father, but any person who has
charge of, supervises, and manages the affairs of the household or the collective body of persons residing together and
constituting the family. Armstrong-McClenahan Co. v.
Rhoads, 180 Iowa, 710, 163 N.W. 356, 357; The term may
thus include an abandoned wife maintaining minor children, Mennell v. Wells, 51 Mont. 141, 149 P. 954, 955; and
also a widow, Wilkey v. Wilkey, 130 Tenn. 430, 171 S.W.
78; Burrell Tp. v. Pittsburg Guardians of Poor, 62 Pa.
475, 1 Am. Rep. 441.
There must be at least two persons who live together in
relation of one family. Whidden v. Abbott, 124 Fla. 293,
168 So. 253, 254.
To be the head of a family, one must either have a
responsibility (i. e., at least a natural or moral obligation)
to support, or have parental authority over, another member of the family. Whyte v. Grant, 142 La. 822, 77 So-. 643.
"Head of family," within exemption laws, must be under
some obligation to support other members, and the other
members must be dependent on the head. Lena v. Clinkenbeard, 172 Okl. 6, 44 P.2d 2, 4, (but see In re Taylor, D.C.,
282 F. 315, 316).
HEAD-NOTE. A syllabus to a reported case; a
summary of the points decided in the case, which
is placed at the head or beginning of the report.
HEAD-PENCE. An exaction of 40d. or more, collected by the sheriff of Northumberland from the
people of that county twice in every seven years,
without account to the king. Abolished by 23
Hen. VI. c. 6, in 1444. Cowell.
HEADRIGHT. Under the Allotment Act (Act
Cong. June 28, 1906 [34 Stat. 5391), creating a
trust fund from all tribal funds which included
funds from sale of tribal lands, funds allowed on
claims against the United States and received from
tribal oil, gas, and mineral rights, each allottee
owned his pro rata share of the trust fund, and
this pro rata beneficial interest is commonly called a "headright." Cook v. First Nat. Bank, 145
Okl. 5, 291 P. 43, 46.
HEAD OF CREEK. This term means the source
of the longest branch, unless general reputation
has given the appellation to another. Davis v.
Bryant, 2 Bibb. (Ky.) 110.
HEAD OF DEPARTMENT. One of the members
of the president's cabinet, and not a mere bureau
head. Brooks v. United States, D.C.N.Y., 33 F.
Supp. 68, 69.
The expression "head of any department of the state
government" is one of varied and therefore of equivocal
meaning. construed in one statute as having been employed
in a narrow, restricted sense, and in another to have been
used in its general popular sense, depending on effectuation
of the legislative objective as the controlling element.
Rainey v. Malone, Tex.Civ.App., 141 S.W.2d 713, 715.
HEAD OF STREAM. The highest point on the
stream which furnishes a continuous stream of
water, not necessarily the longest fork or prong.
Uhl v. Reynolds, 64 S.W. 498, 23 Ky.Law Rep. 759;
State v. Coleman, 13 N.J.Law, 104.
HEAD OF WATER. In hydraulic engineering,
mining, etc., the effective force of a body or volume of water, expressed in terms of the vertical
distance from the level of the water in the pond,
reservoir, dam, or other source of supply, to the
point where it is to be mechanically applied, or expressed in terms of the pressure of the water per
square inch at the latter point. Shearer v. Middleton, 88 Mich. 621, 50 N.W. 737.
HEADBOROUGH. In Saxon law, the head or
chief officer of a borough; chief of the frankpledge tithing or decennary. This office was afterwards, when the petty constableship was created, united with that office.
HEAD-COURTS. Certain tribunals in Scotland,
abolished by 20 Geo. II. c. 50. Ersk. 1, 4, 5.
HEADERS. In mining, a "cap" is a square piece
of plank or block wedged between the top of posts
and the roof to better hold the roof, and "headers"
are longer pieces of plank supported by a prop
at each end and supporting a larger area of the
roof with fewer posts. Big Branch Coal Co. v.
Wrenchie, 160 Ky. 668, 170 S.W. 14, 16.
HEADRIGHT CERTIFICATE. In the laws of the
republic of Texas, a certificate issued under authority of an act of 1839, which provided that
every person immigrating to the republic between
October 1, 1837, and January 1, 1840, who was the
head of a family and actually resided within the
government with his or her family should be entitled to a grant of 640 acres of land, to be held
under such a certificate for three years, and then
conveyed by absolute deed to the settler, if in
the meantime he had resided permanently within
the republic and performed all the duties required of citizens. Cannon v. Vaughan, 12 Tex. 401.
HEAD-SILVER. A name sometimes given to a
Common Fine (q. v.). By a payment of a certain
sum of money to the lord, litigants might try their
suits nearer home. Blount.
HEAFODWEARD. In old English law, one of the
services to be rendered by a thane, or a geneath
or villein, the precise nature of which is unknown.
Anc.Eng.Inst.
HEALER. One who heals or cures; specifically,
one who professes to cure bodily diseases without
medicine or any material means, according to the
tenets and practices of so-called "Christian
Science," whose beliefs and practices, being founded on their religious convictions, are not per se
proof of insanity. In re Brush's Will, 72 N.Y.S.
425, 35 Misc. 689.
HEALGEMOTE. In Saxon law, a court-baron;
an ecclesiastical court; Haligemot (q. v.).
HEALING ACT. Another name for a curative
act or statute. See Lockhart v. Troy, 48 Ala. 584.
HEALSFANG. In Saxon law, a sort of pillory,
by which the head of the culprit was caught between two boards, as feet are caught in a pair of
stocks. Cowell. It was very early disused, no
mention of it occurring in the laws of the Saxon
851
HEALTH
kings. Anc.Laws & Inst. of Eng. Gloss.; Spelman, Gloss.
HEALTH. State of being hale, sound, or whole
in body, mind or soul, well being. Venable v.
Gulf Taxi Line, 105 W.Va. 156, 141 S.E. 622, 624.
Freedom from pain or sickness; the most perfect
state of animal life. Not synonymous with "sanitation." Black v. Lambert, Tex.Civ.App., 235 S.W.
704, 706. The right to the enjoyment of health is
a subdivision of the right of personal security, one
of the absolute rights of persons. 1 Bl.Comm. 129,
134. As to injuries affecting health, see 3 Bl.
Comm. 122.
Bill of health. See Bill.
Board of health. See Board.
Health laws. Laws prescribing sanitary measures, and designed to promote or preserve the
health of the community.
Health officer. The officer charged with the
execution and enforcement of health laws. The
powers and duties of health officers are regulated
by local laws.
Public health. As one of the objects of the police power of the state, the "public health" means
the prevailingly healthful or sanitary condition of
the general body of people or the community in
mass, and the absence of any general or widespread disease or cause of mortality. The wholesome sanitary condition of the community at
large. State ex rel. Pollock v. Becker, 289 Mo. 660,
233 S.W. 641, 649.
Sound Health. See "Sound."
HEALTHY. Free from disease or bodily ailment,
or any state of the system peculiarly susceptible
or liable to disease or bodily ailment. Bell v. Jeffreys, 35 N.C. 356.
HEARING. Proceeding of relative formality,
generally public, with definite issues of fact or of
law to be tried, in which parties proceeded against
have right to be heard, and is much the same as a
trial and may terminate in final order. In re Securities and Exchange Commission, D.C.N.Y., 14
F.Supp. 417, 419. Synonymous with trial, and in,cludes reception of evidence and arguments thereon. Grant v. Michaels, 94 Mont. 452, 23 P.2d 266.
It is frequently used in a broader and more popular significance to describe whatever takes place
before magistrates clothed with judicial functions
and sitting without jury at any stage of the pror
.ceedings subsequent to its inception, and may in.
clude proceedings before an auditor. Menard v.
Bowman Dairy Co., 296 Ill.App. 323, 15 N.E.2d
1014, 1015.
In equity practice. The trial of the case, in-eluding introduction of evidence, argument of
counsel, and decree of court. Wolfe v. Wolfe, 144
Neb. 55, 12 N.W.2d 368, 369.
The words "final hearing" have long been used to designate the trial of an equity case upon the merits, as distinguished from the hearing of any preliminary questions
arising in the cause, which are termed "interlocutory."
Akerly v. Vilas, 24 Wis. 171, 1 Am.Rep. 166.
The term is broad enough to include judicial examination of issue between the parties whether of law or of fact.
Keown v. Keown, 231 Mass. 404, 121 N.E. 153, 154.
In criminal law. The examination of a prisoner charged with a crime or misdemeanor, and of
the witnesses for the accused.
Fair hearing. See Fair Hearing.
Final hearing. See Final.
Preliminary examination. The examination of
a person charged with crime, before a magistrate.
Van Buren v. State, 65 Neb. 223, 91 N.W. 201.
Preliminary hearing. In criminal law. Synonymous with "preliminary examination." State v.
Rogers, 31 N.M. 485, 247 P. 828, 833.
The hearing given to a person accused of crime,
by a magistrate or judge, exercising the functions
of a committing magistrate, to ascertain whether
there is evidence to warrant and require the commitment and holding to bail of the person accused.
See Bish. New Cr.L. §§ 32, 225.
It is in no sense a trial for the determination of accused's
guilt or innocence, but simply a course of procedure
whereby a possible abuse of power may be prevented, and
accused discharged or held to answer, as the facts warrant.
State v. Langford, 293 Mo. 436, 240 S.W. 167, 168.
Unfair hearing. See that title.
HEARING DE NOVO. Generally, a new hearing
or a hearing for the second time, contemplating
an entire trial in same manner in which matter
was originally heard and a review of previous
hearing. On hearing "de novo" court hears matter as court of original and not appellate jurisdiction. Collier & Wallis v. Astor, 9 Ca1.2d 202, 70
P.2d 171, 173.
HEARSAY. Evidence not proceeding from the
personal knowledge of the witness, but from the
mere repetition of what he has heard others say.
That which does not derive its value solely from
the credit of the witness, but rests mainly on the
veracity and competency of other persons. The
very nature of the evidence shows its weakness,
and it is admitted only in specified cases from necessity. State v. Ah Lee, 18 Or. 540, 23 P. 424, 425.
Young v. Stewart, 191 N.C. 297, 131 S.E. 735, 737.
It is second-hand evidence, as distinguished from original
evidence; it is the repetition at second-hand of what would
be original evidence if given by the person who originally
made the statement. Literally, it is what the witness says
he heard another person say. Stockton v. Williams, 1
Doug., Mich., 546, 570 (citing 1 Starkie, Ev. 229). Evidence,
oral or written, is hearsay when its probative force depends
in whole or in part on the competency and credibility of a
person other than the witness. State v. Kluttz, 206 N.C.
726, 804, 175 S.E. 81. Hearsay is a statement made by a
person not called as a witness, received in evidence on the
trial. People v. Kraft, 36 N.Y.S. 1034, 1035, 91 Hun, 474.
The term is sometimes used synonymously with "report",
State v. Vettere, 76 Mont 574, 248 P. 179, 183; and with
"rumor".
HEARTH MONEY. A tax levied in England by
St. 14 Car. II. c. 10, consisting of two shillings on
every hearth or stove in the kingdom. It was extremely unpopular, and was abolished by 1 W. &
852
HEEL
HECCAGIUM. In feudal law, rent paid to a lord
of the fee for a liberty to use the engines called
"becks."
M. St. 1, c. 10. This tax was otherwise called
"chimney money."
HEARTH SILVER. In English law, a species of
modus or composition for tithes; Anstr. 323, 326;
viz.: a prescription for cutting down and using
for fuel the tithe of wood. 2 Burn, Eccl.Law 304.
HECK. An engine to take fish in the river Ouse.
23 Hen. VIII. c. 18.
HECK DAY. See Hoke Day.
HEAT OF PASSION. In criminal law, a state of
violent and uncontrollable rage engendered by a
blow or certain other provocation given, which
will reduce a homicide from the grade of murder
to that of manslaughter. Disney v. State, 72 Fla.
492, 73 So. 598, 601.
Passion or anger suddenly aroused at the time
by some immediate and reasonable provocation,
by words or acts of one at the time. State v.
Seaton, 106 Mo. 198, 17 S.W. 169.
HEAT PROSTRATION. Sunstroke. U. S. Fidelity & Guaranty Co. v. Hoflinger, Ark., 45 S.W.2d
866, 867.
HEAT STROKE. Sunstroke. A sudden prostration resulting from exposure to excessive heat regardless of the source from which the heat emanates. Herbert v. State, 124 Neb. 312, 246 N.W.
454. A depression of the vital powers; due to exposure to excessive heat, and manifesting itself as
prostration with syncope, etc. (heat exhaustion),
as prostration with insensibility, fever, etc. (true
sunstroke), or rarely as acute meningitis; sunstroke or insolation (in the wider sense). Smith
v. Standard Sanitary Mfg. Co., 211 Ky. 454, 277 S.
W. 806, 807.
HEAVE TO. In maritime parlance and admiralty
law, to stop a sailing vessel's headway by bringing
her head "into the wind," that is, in the direction
from which the wind blows. A steamer is said
to be "hove to" when held in such a position that
she takes the heaviest seas upon her quarter.
The Hugo, D.C.N.Y., 57 Fed. 411.
HEBBERMAN. An unlawful fisher in the
Thames below London bridge; so called because
they generally fished at ebbing tide or water. 4
Hen. VII, c. 15; Jacob.
HEBBERTHEF. In Saxon law, the privilege of
having the goods of a thief, and the trial of him,
within a certain liberty. Cowell.
HEBBING-WEARS. A device for catching fish in
ebbing water. St. 23 Hen. VIII, c. 5.
HEBDOMAD. A week; a space of seven days.
HEBDOMADIUS. A week's man; the canon or
prebendary in a cathedral church, who had the peculiar care of the choir and the offices of it for
his own week. Cowell.
HEBOTE. The king's edict commanding his subjects into the field.
HEBREW. Not the same as Yiddish. U. S. ex
rel. Engel v. Tod, C.C.A.N.Y., 294 F. 820, 822. See
Yiddish.
HEDA. A small haven, wharf, or landing place.
HEDAGIUM. Toll or customary dues at the hithe
or wharf, for landing goods, etc., from which exemption was granted by the crown to some particular persons and societies. Wharton; Cowell.
HEDGE. A purchase of grain to protect against
loss due to fluctuations in price. Aberdeen Farmers' Equity Exchange v. Sand, 53 S.D. 574, 221 N.
W. 597. See Hedging.
To safeguard one's self from loss on a bet or
speculation by making compensatory arrangements on the other side. Whorley v. Patton-Kjose
Co., 90 Mont. 461, 5 P.2d 210, 214.
HEDGE—BOTE. An allowance of wood for repairing hedges or fences, which a tenant or lessee
has a right to take off the land let or demised to
him. 2 Bl.Comm. 35; Livingston v. Ten Broeck, 16
Johns. (N.Y.) 15, 8 Am.Dec. 287.
HEDGE—PRIEST. A vagabond priest in olden
time.
A hedge-parson; specifically, in Ireland, formerly, a priest who has been admitted to orders directly from a hedge-school, without preparation
in theological studies at a regular college. Cent.
Dict.
HEDGING. A means by which collectors and exporters of grain or other products, and manufacturers, who make contracts in advance for the sale
of their goods, secure themselves against the fluctuations of the market by counter contracts for
the purchase or sale of an equal quantity of the
product or of the material of manufacture. Whorley v. Patton-Kjose Co., 90 Mont. 461, 5 P.2d 210,
214. The action of one who buys commodities in
selling an equal amount of such commodities on
exchange for the purpose of insurance against
fluctuations in price. Fraser v. Farmers' Co-op.
Co., 167 Minn. 369, 209 N.W. 33, 36.
The term "hedge," as used in the milling business, means
when the miller enters into a contract for the delivery of
flour at a future date, he buys wheat on the stock exchange
for future delivery, and when he purchases wheat for
actual delivery from the grain elevator to fulfill the contract which he had previously made to furnish flour, he
sells the wheat which he has bought on the stock exchange.
Bluefield Milling Co. v. Western Union Telegraph Co., 104
W.Va. 150, 139 S.E. 638, 55 A.L.R. 636.
HEEDLESS. It is almost as strong as word
"reckless" and includes the element of disregard
of the rights of others. State v. Sullivan, 58 N.D.
732, 227 N.W. 230, 232. Careless. Bordonaro v.
Senk, 109 Conn. 428, 147 A. 136, 137.
HEEL BLANK. Several heel lifts cemented to.
gether, forming the height of the heel minus the
853
HEEL
rand and a bottom or finishing lift. Brockton
Heel Co. v. International Shoe Co., D.C.N.H., 19
F.2d 145.
HEEL LOG. Succession of heel lifts coated with
an adhesive, piled one upon the other, to which
pressure has been applied, making a log of some
indeterminate length. Brockton Heel Co. v. International Shoe Co., D.C.N.H., 19 F.2d 145.
HEEL LOG SECTION. A portion of a heel log
of any convenient length. Brockton Heel Co. v.
International Shoe Co., D.C.N.H., 19 F.2d 145.
HEELER. An opprobrious term, meaning in common acceptation a person who is the lackey or
hangeron of another, and in a political sense an
unscrupulous and disreputable person. Winnsboro Cotton Oil Co. v. Carson, Tex.Civ.App., 185
S.W. 1002, 1008.
HEGEMONY. The leadership of one among several independent confederate states.
HEGIRA. The epoch or account of time used by
the Arabians and the Turks, who begin the Mohammedan era and computation from the day that
Mohammed was compelled to escape from Mecca.
to Medina which happened on the night of Thursday, July 15, A.D. 622, under the reign of the Emperor Heraclius. Townsend, Dict. Dates; Wilson,
Gloss. The era begins July 16. The word is
sometimes spelled hejira but the former is the
ordinary usage. It is derived from hijrah, in one
form or another, an oriental term denoting flight,
departure.
The flight of Mohammed from Mecca. Webster,
Dict.
HEGUMENOS. The leader of the monks in the
Greek Church.
HEIFER. A young cow; a cow that has not had
a calf. Fletcher v. State, 198 Ark. 376, 128 S.W.
2d 997, 999.
HEIR. At common law. The person appointed
by law to succeed to the estate in case of intestacy. 2 Bla.Comm. 201; Dukes v. Faulk, 37 S.C. 255,
16 S.E. 122, 34 Am.St.Rep. 745.
One who inherits property, whether real or
personal. Hartford-Connecticut Trust Co. v. Lawrence, 106 Conn. 178, 138 A. 159, 160.
A person who succeeds, by the rules of law, to an estate
in lands, tenements, or hereditaments, upon the death of
his ancestor, by descent and right of relationship. Hoover
v. Smith, 96 Md. 393, 54 A. 102. Sewall v. Roberts, 115
Mass. 268. He who is born or begotten in lawful wedlock,
and upon whom the law casts the inheritance immediately
upon the death of his ancestor. Moffett v. Conley, 63 Okl.
3, 163 P. 118, 120.
One who would receive his estate under statute
of descent and distribution. Faulkner's Guardian
v. Faulkner, 237 Ky. 147, 35 S.W.2d 6, 7.
Moreover, the term is frequently used in a popular sense to designate a successor to property
either bly will or by law. Wallace v. Privett, 198
Cal. 746, 247 P. 906, 907.
According to many authorities, heir may be
nomen collectivum, as well in a deed as in a will,
and operate in both in the same manner as the
word heirs. 1 Rolle, Abr. 253; Ambl. 453; Cro.
Eliz. 313; 1 Burr. 38. But see 2 Prest.Est. 9, 10.
The word must be construed according to testator's intention as gathered from whole will.
Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121.
See, also, Heirs.
In the civil law. A universal successor in the
event of death. He who actively or passively succeeds to the entire property or estate, rights and
obligations, of a decedent, and occupies his place.
The term is indiscriminately applied to all persons who
are called to the succession, whether by the act of the party
or by operation of law. The person who is created universal successor by a will is called the "testamentary
heir ;" and the next of kin by blood is, in cases of intestacy, called the "heir at law," or "heir by intestacy." The
executor of the common law in many respects corresponds
to the testamentary heir of the civil law. Again, the
administrator in many respects corresponds with the heir
by intestacy. By the common law, executors and administrators have no right except to the personal estate of the
deceased ; whereas the heir by the civil law is authorized
to administer both the personal and real estate. Story,
Confl. Laws, §§ 57, 508; 1 Brown, Civ. Law, 344.
The term "heir" has several significations. Sometimes it
refers to one who has formally accepted a succession and
taken possession thereof ; sometimes to one who is called
to succeed, but still retains the faculty of accepting or
renouncing, and it is frequently used as applied to one who
has formally renounced. Mumford v. Bowman, 26 La.Ann.
417.
In Scotch law. The person who succeeds to the
heritage or heritable rights of one deceased. 1
Forb.Inst. pt. 3, p. 75. The word has a more extended signification than in English law, comprehending not only those who succeed to lands, but
successors to personal property also. Wharton.
Right heir. This term was formerly used, in
the case of estates tail, to distinguish the preferred heir, to whom the estate was limited, from
the heirs in general, to whom, on the failure of
the preferred heir and his line, the remainder over
was usually finally limited. With the abolition of
estates tail, the term has fallen into desuetude,.
but when still used, in modern law, it has no other meaning than "heir at law." Brown v. Wadsworth, 168 N.Y. 225, 61 N.E. 250.
HEIR APPARENT. An heir whose right of inheritance is indefeasible, provided he outlive the
ancestor; as in England the eldest son, or his issue, who must, by the course of the common law,
be heir to the father whenever he happens to die._
2 Bl.Comm. 208; 1 Steph.Comm. 358; Jones v.
Fleming, 37 Hun. (N.Y.) 230. One who, before
the death of the ancestor, is next in the line of
succession, provided he be heir to the ancestor
whenever he happens to die. Reese v. Stires, 87
N.J.Eq. 32, 103 A. 679. See, also, Apparent Heir.
HEIR AT LAW. He who, after his ancestor dies
intestate, has a right to all lands, tenements, and
hereditaments which belonged to him or of which
he was seised. The same as "heir general." Forrest v. Porch, 100 Tenn. 391, 45 S.W. 676.
854
HEIR OF THE BODY
The heir at common law is that person who succeeds to
the real estate in case of intestacy.. Walker v. Walker, 283
111. 11, 118 N.E. 1014, 1019. In its strict sense and technical
i mport, the person or persons appointed by law to succeed
to the estate in case of intestacy. Albright v. Albright, 116
Ohio St. 668, 157 N.E. 760, 762. In a comprehensive and
popular sense, one who inherits either real or personal
property: Gross v. Hartford-Connecticut Trust Co., 100
Conn. 332, 123 A. 907, 908. Next of kin, Meeker v. Forbes,
84 N.J.Eq. 271, 93 A. 887, 888.
In the term "heir at law," as used in will, suffix "at law"
adds merely expectant feature of one's statutory position
toward an ancestor or source of title who is considered as
still living, whereas word "heir" alone denotes that ancestor has already died. In re Ward's Estate, 297 N.Y.S. 16,
19, 162 Misc. 855.
A deceased person's "heirs at law" are those who succeed
to his estate of inheritance under statutes of descent and
distribution, in absence of testamentary disposition, and
not necessarily his_heirs at common law, who are persons
.succeeding to deceased's realty in case of his intestacy. In
re Towndrow's Will, 47 N.M. 173, 138 P.2d 1001, 1003.
HEIRS AT LAW SHALL NOT BE DISINHERITED BY CONJECTURE, BUT ONLY BY EXPRESS
WORDS OR NECESSARY IMPLICATION.
.Schoul. Wills § 479.
HEIR BENEFICIARY. In the civil law, one who
has accepted the succession under the benefit of
an inventory regularly made.
Heirs are divided into two classes, according to the manner in which they accept the successions left to them,
to-wit, unconditional and beneficiary heirs. Unconditional
heirs are those who inherit without any reservation, or
without making an inventory, whether their acceptance be
express or tacit. Beneficiary heirs are those who have
accepted the succession under the benefit of an inventory
regularly made. Civ.Code La. art. 883. If the heir apprehend that the succession will be burdened with debts
beyond its value, he accepts with benefit of inventory, and
in that case he is respopsible only for the value of the succession.
HEIR BY ADOPTION. An adopted child, "who is
in a limited sense made an heir, not by the law,
but by the contract evidenced by the deed of adoption." In re Sessions' Estate, 70 Mich.. 297, 38 N.
W. 249, 14 Am.St.Rep. 500.
HEIR BY CUSTOM. In English law, one whose
right of inheritance depends upon a particular and
local custom, such as gavelkind, or borough English. Co.Litt. 140.
HEIR BY DEVISE. One to whom lands are devised by will; a devisee of lands. Answering to
the hceres factus (q. v.) of the civil law.
HEIR COLLATERAL. One who is not lineally
related to the decedent, but is of collateral kin;
e. g., his uncle, cousin, brother, nephew.
HEIR CONVENTIONAL. In the civil law, one
who takes a succession by virtue of a contract or
settlement entitling him thereto.
HEIR INSTITUTE. In Scotch law, one to whom
the right of succession is ascertained by disposition or express deed of the deceased. 1 Forb.Inst.
pt. 3, p. 75.
HEIR, IRREGULAR. In Louisiana, irregular
heirs are those who are neither testamentary nor
legal, and who have been established by law to
take the succession. See Civ.Code La. art. 878.
When there are no direct or collateral relatives
surviving the decedent, and the succession consequently devolves upon the surviving husband or
wife, or illegitimate children, or the state, it is
called an "irregular succession."
HEIR, LEGAL. In the civil law, a legal heir is
one who takes the succession by relationship to
the decedent and by force of law.
This is different from a testamentary or conventional
heir, who takes the succession in virtue of the disposition
of man. See Civ.Code La. arts. 877, 879. The term is also
used in Anglo-American law in substantially the same
sense, that is, the person to whom the law would give the
decedent's property, real and personal, if he should die
intestate. Waller v. Martin, 106 Tenn. 341, 61 S.W. 73, 82
Am.St.Rep. 882. In legal strictness, the term signifies one
who would inherit real estate, but it is also used to indicate one who would take under the statute of distribution.
Morse v. Ward, 92 Conn. 408, 103 A. 119, 120.
HEIR, MALE. In Scotch law, an heir institute,
who, though not next in blood to the deceased, is
his nearest male relation that can succeed to him.
1 Forb.Inst. pt. 3, p. 76. In English law, the nearest male blood-relation of the decedent, unless
further limited by the words "of his body," which
restrict the inheritance to sons, grandsons, and
other male descendants in the right line. Jordan
v. Adams, 6 C.B.,N.S., 764; Goodtitle v. Herring,
1 East, 275; Ewan v. Cox, 9 N.J.Law, 14.
HEIR OF CONQUEST. In Scotch law, one who
succeeds to the deceased in conquest, i. e., lands
or other heritable rights to which the deceased
neither did nor could succeed as heir to his predecessor.
HEIR OF LINE. In Scotch law, one who succeeds
lineally by right of blood; one who succeeds to
the deceased in his heritage;
e., lands and other
heritable rights derived to him by succession as
heir to his predecessor. 1 Forb.Inst. pt. 3, p. 77.
HEIR OF PROVISION. In Scotch law, one who
succeeds as heir by virtue of a particular provision in a deed or instrument.
HEIR OF TAILZIE. In Scotch law, he on whom
an estate is settled that would not have fallen to
him by legal succession. 1 Forb.Inst. pt. 3, p. 75.
HEIR, FORCED. One who cannot be disinherited. See Forced Heirs.
HEIR OF THE BLOOD. An inheritor who succeeds to the estate by virtue of consanguinity with
the decedent, either in the ascending or descend..
ing line, including illegitimate children, but excluding husbands, wives, and adopted children.
Hayden v. Barrett, 172 Mass. 472, 52 N.E. 530, 70
Am.St.Rep. 295.
HEIR GENERAL. An heir at law. The ordinary
heir by blood, succeeding to all the lands. Forrest v. Porch, 100 Tenn. 391, 45 S.W. 676.
HEIR OF THE BODY. An heir begotten or borne
by the person referred to, or a child of such heir;
any lineal descendant of the decedent, excluding
HEIR EXPECTANT. One whose parents were
living, as respects lots to which parents had title.
Adams v. Adams, 348 Mo. 1041, 156 S.W.2d 610, 616.
855
HEIR OF TILE BODY
a surviving husband or wife, adopted children,
and collateral relations; bodily heir. Ratliffe v.
Ratliffe, 182 Ky. 230, 206 S.W. 478, 479. Clarkson
v. Hatton, 143 Mo. 47, 44 S.W. 761, 39 L.R.A. 748,
65 Am.St.Rep. 635.
May be used in either of two senses : In their unrestricted sense, as meaning the persons who from generation to
generation become entitled by descent under the entail;
and in the sense of heirs at law, or those persons who are
descendants of him whom the statute of descent appoints
to take intestate estate. Bunn v. Butler, 300 Ill. 269, 133
N.E. 246, 247. Unless the will discloses an intention to the
contrary, the term "heirs of the body" is not synonymous
with children. Clark v. Cammack, 216 Ala. 346, 113 So. 270,
271. And ordinarily, such words are words of limitation
and not of purchase. Kirby v. Hulette, 174 Ky. 257, 192
S. W. 63, 65; contra: Owen v. Trail, 302 Mo. 292, 258 S. W.
699, 701. The words are sometimes deemed equivalent to
"issue" or "descendants" ; Rhode Island Hospital Trust
Co. v. Bridgham, 42 R.I. 161, 106 A. 149, 152, 5 A.L.R. 185;
and sometimes not; In re English's Estate, 270 Pa. 1, 112
A. 913, 914.
HEIR PRESUMPTIVE. The person who, if the
ancestor should die immediately, would, in the
present circumstances of things, be his heir, but
whose right of inheritance may be defeated by
the contingency of some nearer heir being born;
as a brother or nephew, whose presumptive succession may be destroyed by the birth of 'a child.
2 Bl.Comm. 208; 1 Steph.Comm. 358; Jones v.
Fleming, 37 Hun., N.Y., 230.
In Louisiana, the presumptive heir Is he who Is the nearest relation of the deceased capable of inheriting. This
quality is given to him before the decease of the person
from whom he is to inherit, as well as after the opening of
the succession, until he has accepted or renounced it. La.
Civ.Code, art. 880.
HEIR SPECIAL. In English law, the issue in
tail, who claims per formam Boni; by the form
of the gift.
HEIR SUBSTITUTE, IN A BOND. In Scotch law,
he to whom a bond is payable expressly in case
of the creditor's decease, or after his death. 1
Forb.Inst. pt. 3, p. 76.
HEIR TESTAMENTARY. In the civil law, one
who is named and appointed heir in the testament
of the decedent. This name distinguishes him
from a legal heir, (one upon whom the law casts
the succession,) and from a conventional heir,
(one who takes it by virtue of a previous contract
or settlement.)
HEIR UNCONDITIONAL. In the civil law and in
Louisiana, one who inherits without any reservation, or without making an inventory, whether his
acceptance be express or tacit. Distinguished
from heir beneficiary. La.Civ.Code, art. 882.
HEIRDOM. Succession by inheritance.
HEIRESS. A female heir to a person having an
estate of inheritance. When there are more than
one, they are called "co-heiresses," or "co-heirs."
HEIRLOOMS. Such goods and chattels as, contrary to the nature of chattels, shall go by special
custom to the heir along with the inheritance, and
not to the executor. The termination "loom"
(Sax.) signifies a limb or member; so that an
heirloom is nothing else but a limb or member of
the inheritance. They are generally such things
as cannot be taken away without damaging or dismembering the freehold; such as deer in a park,
doves in a cote, deeds and charters, etc. 2 Bl.
Comm. 427.
This word seems to be compounded of heir, and loom,
that is, a frame, viz, to weave in. Some derive the word
loom from the Saxon Loma, or geloma, which signifies
utensils or vessels generally. However, this may be, the
word loom, by time, is drawn to a more general signification than it bore at the first, comprehending all implements of household, as tables, presses, cupboards, bedsteads, wainscots, and which, by the custom of some countries, having belonged to a house are never inventoried
after the decease of the owner as chattels, but accrue to
the heir with the house itself. Minshew; 2 Poll. & Maitl.
361.
HEIRS. Technically, those persons designated by
law to succeed to the estate in case of intestacy.
Potter v. Potter, 306 Ill. 37, 137 N.E. 425, 426. See,
also, Heir.
A word used in deeds of conveyance, (either
solely, or in connection with others,) where it is
intended to pass a fee.
It is generally a word of limitation, and is not to be construed as a word of purchase unless there are other controlling words showing such intention by the person using it.
McKnight v. Black, 240 Ky. 818, 43 S.W.2d 53, 54.
In the word is comprehended heirs of heirs in infinitum.
Co. Litt. 7b, 9a; Larew v. Larew, 146 Va. 134, 135 S.E. 819,
820.
It may have different meanings, just as under the English law the singular form, "heir," might have different
meanings, but, if there is no context, the word "heirs"
must be held to indicate the indefinite succession by inheritance. .7Etna Life Ins. Co. v. Hoppin, C.C.A., 214 F. 928,
932. Under the terms of particular wills, however, or
under statutes abolishing the rule in Shelley's Case, Menard v. Campbell, 180 Mich. 583, 147 N.W. 556, 558, Ann.Cas.
1916A, 802; it may be a word of purchase, and is frequently deemed synonymous with "children," Cultice v.
Mills, 97 Ohio St. 112, 119 N.E. 200, 201; Williams v. J. C.
Armiger & Bro., 129 Md. 222, 98 A. 542, 544.
A devise or bequest to "heirs" primarily means those
who are heirs at the testator's death, and it is only when a
contrary intention appears that this presumption fails. In
re Bump's Will, 234 N.Y. 60, 136 N.E. 295, 296.
Bodily heirs. In a technical sense, the same as
"heirs of the body." Hartman v. Flynn, 189 N.C.
452, 127 S.E. 517, 519.
Normally, words of limitation, not of purchase. Stamey
v. McGinnis, 145 Ga. 226, 88 S.E. 935, 936. But they may
be used synonymously with "children." Scott v. Scott, 172
Ky. 658, 190 S.W. 143.
Joint heirs. Co-heirs. The term is also applied
to those who are or will be heirs to both of two
designated persons at the death of the survivor
of them, the word "joint" being here applied to
the ancestors rather than the heirs. See Gardiner
v. Fay, 182 Mass. 492, 65 N.E. 825.
Lawful heirs. The same as "heirs." In re
Irish's Estate, 89 Vt. 56, 94 A. 173, 174, Ann.Cas.
1917C, 1154. In a general sense, those whom the
law recognizes as the heirs of a decedent, but in
a special and technical sense, lineal descendants
only. Abbott v. Essex Co., 18 How. 215, 15 L.Ed.
352.
Legitimate heirs. Children born in lawful wedlock and their descendants, not including collateral
heirs or issue in indefinite succession. Lytle v.
856
HEPTARCHY
the hemiplegia is sometimes "alternate" or crossed, that is, occurring on the opposite side of the
body from the initial lesion.
Beveridge, 58 N.Y. 605; Prindle v. Beveridge, 7
Lans., N.Y., 231. Sometimes synonymous with
"lawful" heir. Corison v. Williams, 58 Cal.App.
282, 208 P. 331, 334.
Lineal heir. See Lineal Heir.
Paralysis of half of the body, as of both legs or of both
arms, or an arm and leg. Gray v. United States, C.C.A.
Ark., 109 F.2d 728. 729. If the disease comes on rapidly or
suddenly, it is called "quick" hemiplegia; if slowly or
gradually, "chronic." The former variety is more apt to
affect the mental faculties than the latter; but, where
hemiplegia is complete, the operations of the mind are generally much impaired. Baughman v. Baughman, 32 Kan.
538, 4 P. 1003.
Living heirs. Technically words of description
instead of purchase. Johnson v. Coler, 187 Iowa,
734, 174 N.W. 654, 655.
Under a will giving the testator's wife an estate for life,
at her death all the property to be equally divided between
"our living children or to their living heirs," the words
"living heirs" should be given their technical meaning as
Including all the legal heirs of the deceased children of
testator that died after the death of testator. Potter v.
Potter, 306 Ill. 37, 137 N.E. 425, 427.
Natural heirs. Heirs by consanguinity as distinguished from heirs by adoption, and also as distinguished from collateral heirs. Smith v. Pendell, 19 Conn. 112, 48 Am.Dec. 146; children; heirs
of the body, Maynard v. Henderson, 117 Ark. 24,
173 S.W. 831, 832, Ann.Cas.1917A, 1157. Yarrington v. Freeman, 201 Ky. 135, 255 S.W. 1034, 1035.
HEIRS AND ASSIGNS. Ordinarily words of limitation and not of purchase. In re Knapp's Will, 6
N.Y.S.2d 100, 168 Misc. 487. At common law, the
words were essential to conveyance granting title
in fee simple, and though they are unnecessary
for that or any purpose under statute when used
in wills or deeds, words still have that meaning.
In re Denari's Will, 300 N.Y.S. 1279, 165 Misc. 450.
HEIRSHIP. The quality or condition of being
heir, or the relation between the heir and his ancestor. It is a legal right, regulated by law, to be
enjoyed subject to the provisions of the statute.
Winke v. Olson, 164 Wis. 427, 160 N.W. 164, 166.
HEIRSHIP MOVABLES. In Scotch law. The
movables which go to the heir, and not to the
executor, that the land may not go to the heir
completely dismantled, such as the best of furniture, horses, cows, etc., but not fungibles. Erskine, Inst. 3. 8. 13-17.
HELD. In reference to the decision of a court,
decided. See, also, Hold.
HELL. The name formerly given to a place under the exchequer chamber, where the king's debtors were confined. Rich.Dict.
HELM. Thatch or straw; a covering for the head
in war; a coat of arms bearing a crest; the tiller
or handle of the rudder of a ship.
HEMOLDBORH, or HELMELBORCH. A title to
possession. The admission of this old Norse
term into the laws of the Conqueror is difficult
to be accounted for; it is not found in any AngloSaxon law extant. Wharton.
HENCEFORTH. A word of futurity, which, as
employed in legal documents, statutes, and the
like, always imports a continuity of action or condition from the present time forward, but excludes
all the past. Thomson v. American Surety Co.,
170 N.Y. 109, 62 N.E. 1073.
HENCHMAN. A page; an attendant; servant;
a herald. See Barnes v. State, 88 Md. 347, 41 A.
781. A footman; one who holds himself at the
bidding of another. It has come to mean here a
political follower; used in a rather bad sense.
Gates v. State, 140 Tex.Cr.R. 228, 143 S.W.2d 780,
783, 784.
HENEDPENNY. A customary payment of money instead of hens at Christmas; a composition
for eggs. Cowell.
HENFARE. A fine for flight on account of murder. Domesday Book.
HENGHEN. In Saxon law. A prison, a goal, or
house of correction.
HENGWYTE. Sax. In old English law. An acquittance from a fine for hanging a thief. Fleta,
lib. 1, c. 47, § 17.
HENRICUS VETUS. Henry the Old, or Elder.
King Henry L is so called in ancient English chronicles and charters, to distinguish him from the
subsequent kings of that name. Spelman.
HEORDFAETE, or HUDEFIEST. In Saxon law.
A master of a family, keeping house, distinguished from a lower class of freemen, viz., folgeras,
(folgarii,) who had no habitations of their own,
but were house-retainers of their lords.
HELOWE-WALL. The end-wall covering and defending the rest of the building. Paroch. Antiq.
573.
HEORDPENNY. Peter-pence (q. v.).
HELSING. A Saxon brass coin, of the value of
a half-penny.
HEPBURN ACT. The name commonly given to
an act of Congress, June 29, 1906, amending §§
1, 6, 14, 15, 16 and 20 of the Interstate Commerce
Act, Feb. 4, 1887. (49 U.S.C.A. §§ 1, 6, 11, 14, 15, 16,
18, 20).
HE3IIPLEGIA. In medical jurisprudence. Unilateral paralysis; paralysis of one side of the body,
commonly due to a lesion in the brain, but sometimes originating from the spinal cord, as in
"Brown-Sequard's paralysis," unilateral paralysis
with crossed ancesthesia. In the cerebral form,
HEORDWERCH. In Saxon law. The service of
herdsmen, done at the will of their lord.
HEPTARCHY. A government exercised by seven
persons, or a nation divided into seven governments. In the year 5G0, seven different monarchies
857
HERALD
had been formed in England by the German tribes,
namely, that of Kent by the Jutes; those of Sussex, Wessex, and Essex by the Saxons; and those
of East Anglia, Bernicia, and Deira by the Angles.
To these were added, about the year 586, an eighth,
called the "Kingdom of Mercia," also founded by
the Angles, and comprehending nearly the whole
of the heart of the kingdom. These states formed
what has been designated the "Anglo-Saxon Octarchy," or more commonly, though not so correctly, the "Anglo-Saxon Heptarchy," from the custom of speaking of Deira and Bernicia under the
single appellation of the "Kingdom of Northumberland." Wharton.
HERALD. In ancient law, a herald was a diplomatic messenger who carried messages between
kings or states, and especially proclamations of
war, peace, or truce. In English law, a herald is
an officer whose duty is to keep genealogical lists
and tables, adjust armorial bearings, and regulate the ceremonies at royal coronations and funerals.
HERALDRY. The art, office, or science of heralds. Also an old and obsolete abuse of buying
and selling precedence in the paper of causes for
hearing.
HERALDS' COLLEGE. In England. An ancient
royal corporation, first instituted by Richard III.
in 1483. It comprises three kings of arms, six
heralds, and four marshals or pursuivants of
arms, together with the earl marshal and a secretary. The heralds' books, compiled when progresses were solemnly and regularly made into
every part of the kingdom, to inquire into the
state of families, and to register such marriages
and descents as were verified to them upon oath,
are allowed to be good evidence of pedigrees. The
heralds' office is still allowed to make grants of
arms and to permit change of names. 3 Starkie,
Ev. 843; Wharton.
HERBAGE. In English law. An easement or
liberty, which consists in the right to pasture cattle on another's ground.
Feed for cattle in fields and pastures. Bract.
fol. 222; Co.Litt. 46; Steph.Touch. 97. A right to
herbage does not include a right to cut grass, or
dig potatoes, or pick apples. Simpson v. Coe, 4
N.H. 303.
HERBAGIUM ANTERIUS. The first crop of
grass or hay, in opposition to aftermath or second
cutting. Paroch.Antiq. 459.
HERBENGER, or HARBINGER. An officer in
the royal house, who goes before and allots the
noblemen and those of the household their lodgings; also an innkeeper.
HERBERGAGIUM. Lodgings to receive guests
in the way of hospitality. Cowell.
HERBERGARE. To harbor; to entertain.
HERBERGATUS. Harbored or entertained in an
inn. Cowell.
HERBERY, or HERBURY. An inn. Cowell.
HERCIA. A harrow. Fleta, lib. 2, c. 77.
HERCIARE. To harrow. 4 Inst. 270.
HERCIATURA. In old English law. Harrowing;
work with a harrow. Fleta, lib. 2, c. 82, § 2.
HERCISCUNDA. In the civil law. To be divided.
Familia herciscunda, an inheritance to be divided.
Actio familice herciscundce, an action for dividing
an inheritance. Erciscunda is more commonly
used in the civil law. Dig. 10, 2; Inst. 3, 28, 4; Id.
4, 6, 20.
HERD, n. An indefinite number, more than a few,
of cattle, sheep, horses, or other animals of the
larger sorts, assembled and kept together as one
drove and under one care and management. Boland v. Cecil, 65 Cal.App.2d Supp. 832, 150 P.2d
819, 822.
HERD, v. To tend, take care of, manage, and control a herd of cattle or other animals, implying
something more than merely driving them from
place to place. Phipps v. Grover, 9 Idaho 415, 75
P. 65.
HERDER. One who herds or has charge of a herd
of cattle, in the senses above defined. Hooker v.
McAllister, 12 Wash. 46, 40 P. 617.
HERDEWICH. A grange or place for cattle or
husbandry. Mon.Angl. pt. 3.
HERDWERCH, HEORDWERCH. Herdsmen's
work, or customary labor, done by shepherds and
inferior tenants, at the will of the lord. Cowell.
HEREAFTER. A word of futurity, always used in
statutes and legal documents as indicative of future time, excluding both the present and the past.
Tremont & S. Mills v. Lowell, 165 Mass. 265, 42
N.E. 1134.
HEREBANNUM. In old English law. A proclamation summoning the army into the field. A.
mulct or fine for not joining the army when summoned. Spelman. A tax or tribute for the support of the army. Du Cange.
HEREBOTE. The royal edict summoning the
people to the field. Cowell.
HEREDAD. In Spanish law. A piece of land under cultivation; a cultivated farm, real estate; an
inheritance or heirship.
HEREDAD YACENTE. From Lat. "Hcereditas jacens," (q. v.) In Spanish law. An inheritance not
yet entered upon or appropriated. White, New
Recop. b. 2, tit. 19, c. 2, § 8.
HEREDERO. In Spanish law. Heir; he who, by
legal or testamentary disposition, succeeds to the
property of a deceased person. "Hceres censeatur
cum defunct° una eademque persona." Las Partidas, 7, 9, 13. Emeric v. Alvarado, 64 Cal. 529,
2 P. 433.
858
HERIOT
HEREDITY. That biological law by which all liv
ing beings tend to repeat themselves in their descendants. Prewitt v. State, 106 Miss. 82, 63 So.
330, 331, 6 A.L.R. 1476.
HEREDITAGIUM. In Sicilian and Neapolitan
law. That which is held by hereditary right; the
same with hereditamentum (hereditament) in
English law. Spelman.
HEREFARE. Sax. A going into or with an army;
a going out to war, (profectio militarist) an expedition. Spelman.
HEREDITAMENTS. Things capable of being inherited, be it corporeal or incorporeal, real, personal, or mixed, and including not only lands and
everything thereon, but also heirlooms, and certain
furniture which, by custom, may descend to the
heir together with the land. Co.Litt. 5b; 2 Bl.
Comm. 17; Nellis v. Munson, 108 N.Y. 453, 15
N.E. 739. Sox v. Miracle, 35 N.D. 458, 160 N.W.
716, 719.
HEREGEAT. A heriot, (q. v.)
HEREGELD. Sax. In old English law. A tribute or tax levied for the maintenance of an army.
Spelman.
HEREMITORIUM. A place of retirement for hermits. Mon.Angl. tom. 3, p. 18.
Things which may be directly inherited, as contrasted
with things which go to the personal representative of a
deceased. Denver Joint Stock Land Bank of Denver v.
Dixon, 57 Wyo. 523, 122 P.2d 842, 846, 140 A.L.R. 1270.
At common law corporeal hereditaments were physical
objects, comprehended under the term land, and were said
to lie in livery, while incorporeal hereditaments existed
only in contemplation of law, were said to lie in grant and
were affiliated with chattel interests. National Supply Co.
v. McLeod, 116 Kan. 477, 227 P. 350.
The term includes a few rights unconnected with land,
but it is generally used as the widest expression for real
property of all kinds, and is therefore employed in conveyances after the words "lands" and "tenements," to
include everything of the nature of realty which they do
not cover. Sweet.
HEREMONES. Followers of an army.
HERENACH. An archdeacon. Cowell.
HERES. Heir; an heir. A form of hceres, very
common in the civil law. See Flres.
HERESCHIP. In old Scotch law. Theft or robbery. 1 Pitc.Crim.Tr. pt. 2, pp. 26, 89.
HERESLITA, HERESSA, HERESSIZ. A hired soldier who departs without license. 4 Inst. 128.
HERESY. In English law. An offense against
religion, consisting not in a total denial of Christianity, but of some of its essential doctrines, publicly and obstinately avowed. 4 Bl.Comm. 44, 45.
An opinion on divine subjects devised by human
reason, openly taught, and obstinately maintained.
1 Hale, P.C. 384.
Corporeal Hereditaments. Substantial permanent objects which may be inherited. The term
"land" will include all such. 2 Bl.Comm. 17; Sox
v. Miracle, 35 N.D. 458, 160 N.W. 716, 719.
Incorporeal Hereditaments. Anything, the subject of property, which is inheritable and not tangible or visible. 2 Woodd.Lect. 4.
This offense is now subject only to ecclesiastical
correction, and is no longer punishable by the secular law. 4 Steph.Comm. 233.
A right issuing out of a thing corporate (whether real or
personal) or concerning or annexed to or exercisable within
the same. 2 Bl.Comm. a0; 1 Washb.Real Prop. 10. A
right growing out of, or concerning, or annexed to, a corporeal thing, but not the substance of the thing itself.
Huston v. Cox, 103 Kan. 73, 172 P. 992.
HERETOCH. A general, leader, or commander;
also a baron of the realm. Du Fresne.
HERETOFORE. This word simply denotes time
past, in distinction from time present or time future, and has no definite and precise signification
beyond this. Andrews v. Thayer, 40 Conn. 157;
Millers' Mut. Fire Ins. Co. v. City of Austin, Tex.
Civ.App., 210 S.W. 825, 827.
HEREDITARY. That which is the subject of inheritance.
HEREDITARY DISEASE. Physical ailment transmitted or transmissible from parent to child in consequence of the infection of the former or the presence of the disease in his system, and without exposure of the latter to any fresh source of infection or contagion. South Atlantic Life Ins. Co. v.
Hurt's Adm'x, 115 Va. 398, 79 S.E. 401, 404.
HERETUM. In old records. A court or yard for
drawing up guards or military retinue. Cowell.
HEREDITARY RIGHT TO THE CROWN. The
crown of England, by the positive constitution of
the kingdom, has ever been descendible, and so
continues, in a course peculiar to itself, yet subject
to limitation by parliament; but, notwithstanding
soh limitation, the crown retains its descendible
quality, and becomes hereditary in the prince to
whom it is limited. 1 Bl.Comm. 191.
HEREDITARY SUCCESSION. Inheritance by
law; title by descent; the title whereby a person,
on the death of his ancestor, acquires his estate
by right of representation as his heir at law. In
re Yahola's Heirship, 142 Okl. 79, 285 P. 946.
HEREZELD. In Scotch law. A gift or present
made or left by a tenant to his lord as a token of
reverence. Skene.
HERGE. In Saxon law. Offenders who joined in
a body of more than thirty-five to commit depredations.
HERIGALDS. In old English law. A sort of garment. Cowell.
HERIOT. In English law. A customary tribute
of goods and chattels, payable to the lord of the
fee on the decease of the owner of the land.
Heriots are divided into heriot service and heriot custom.
The former expression denotes such as are due upon a
special reservation in a grant or lease of lands, and there-
859
HERISCHILD
fore amount to little more than a mere rent; the latter
arise upon no special reservation whatever, but depend
solely upon immemorial usage and custom. 2 BI.Comm.
422. See Adams v. Morse, 51 Me. 501.
HERISCHILD. In old English law. A species of
military service, or knight's fee. Cowell.
HERISCHULDA. In old Scotch law. A fine or
penalty for not obeying the proclamation made
for warfare. Skene.
HERISCINDIUM. A division of household goods.
Blount.
HERISLIT. Laying down of arms. Blount. Desertion from the army. Spelman.
HERISTAL. The station of an army; the place
where a camp is pitched. Spelman.
HERMAPHRODITUS TAM MASCULO QU AM
FCEMINIE COMPARATUR, SECUNDUM PRIEVALENTIAM SEXUS INCALESCENTIS. An hermaphrodite is to be considered male or female according to the predominance of the exciting sex.
Co.Litt. 8; Bract. fol. 5.
HERMENEUTICS. The science or art of construction and interpretation. By the phrase "legal
hermeneutics" is understood the systematic body
pf rules which are recognized as applicable to the
construction and interpretation of legal writings.
HERMER. A great lord. Jacob.
HERMOGENIAN CODE. See Codex Hermogenianus.
HERNESCUS. A heron. Cowell.
HERITABLE. Capable of being taken by descent.
A term chiefly used in Scotch law, where it enters
into several phrases.
HERNESIUM, or HERNESIUM. Household
goods; implements of trade or husbandry; the rigging or tackle of a ship. Cowell.
HERITABLE BOND. A bond for a sum of money
to which is added, for further security of the creditor, a conveyance of land or heritage to be held by
the creditor as pledge. 1 Ross, Con y . 76; 2 Ross,
Cony . 324.
HERNIA. A protrusion of any organ through an
abnormal opening in wall of the containing cavity;
rupture. In re Frihauf, 135 P.2d 427, 430, 58 Wyo.
479; Stoddard v. Mason's Blue Link Stores, 55
Idaho 609, 45 P.2d 597, 600.
HERITABLE JURISDICTIONS. Grants of criminal jurisdiction formerly bestowed on great families in Scotland, to facilitate the administration of
justice. Whishaw. Abolished in effect by St. 20
Geo. II. c. 50. Tomlins.
HEROUD, HERAUD. L. Fr. A herald.
HERPEX. A harrow. Spelman.
HERPICATIO. In old English law. A day's work
with a harrow. Spelman.
HERITABLE OBLIGATION. In Louisiana. An
obligation is heritable when the heirs and assigns
of one party may enforce the performance against
the heirs of the other. Civ.Code La. art. 1997.
HERRING SILVER. This was a composition in
money for the custom of supplying herrings for
the provision of a religious house. Wharton.
HERITABLE RIGHTS. In Scotch law. Rights of
the heir; all rights to land or whatever is connected with land, as mills, fishings, tithes, etc.
HERSHIP. The crime, in Scotland, of carrying
off cattle by force; it is described as "the masterful driving off of cattle from a proprietor's
grounds." Bell.
HERITABLE SECURITY. Security constituted
by heritable property. Encyc. Dict.
HERITAGE. In the civil law. Every species of
immovable which can be the subject of property;
such as lands, houses, orchards, woods, marshes,
ponds, etc., in whatever mode they may have been
acquired, either by descent or purchase. 3 Toullier, No. 472.
In Scotch law. Land, and all property connected
with land; real estate, as distinguished from movables, or personal estate. Bell.
HERITOR. In Scotch law. A proprietor of land.
1 Kames, Eq.Pref.
HERMANDAD. In Spanish law. A fraternity
formed among different towns and villages to prevent the commission of crimes, and to prevent the
abuses and vexations to which they were subjected
by men in power. Bouvier.
HERMAPHRODITE. In medical jurisprudence.
A person of doubtful or double sex; one possessing, really or apparently, and in more or less developed form, some or all of the genital organs
of both sexes.
HERUS. Lat. A master. Servus tacit ut herus
det, the servant does [the work] in order that the
master may give [him the wages agreed on.]
Herus dat ut servus facit, the master gives [or
agrees to give, the wages,] in consideration of,
or with a view to, the servant's doing [the work.]
2 Bl.Comm. 445.
HESIA. An easement. Du Cange.
HEST CORN. In old records. Corn or grain given or devoted to religious persons or purposes. 2
Mon.Angl. 367/3,, Cowell.
HESTA, or HESTHA. A little loaf of bread. A
capon or young cockerel.
HETIERARCHA. The head of a religious house;
the head of a college; the warden of a corporation.
HETIERIA. In Roman law. A company, society,
or college.
HEUVELBORH. Sax. In old English law. A
surety, (warrantus.)
860
HIGHNESS
HEYLODE. In old records. A customary burden
upon inferior tenants, for mending or repairing
hays or hedges.
writ," "Probability rule," "School," "Sea," "Sheriff," "Tide," `Treason," and "Water-Mark," see
those titles.
HEYMECTUS. A hay-net; a net for catching
conies. Cowell.
HIGH COMMISSION COURT. See Court of High
Commission.
HIBERNAGIUM. The season for sowing winter
corn. Cowell.
HIGH COURT OF ADMIRALTY. See Court of
Admiralty.
MDAGE. An extraordinary tax formerly payable to the crown for every hide of land. This
taxation was levied, not in money, but provision of
armor, etc. Cowell.
HIGH COURT OF DELEGATES. See Court of
Delegates.
HIGH COURT OF ERRORS AND APPEALS.
See Court of Errors and Appeals.
HIDALGO. In Spanish law. A noble; a person
entitled to the rights of nobility. By hidalgos
are understood men chosen from good situations in.
life, (de buenos lugures,) and possessed of property, (algo.) White, New Recop. b. 1, tit. 5, c. 1.
HIDALGUIA. In Spanish law. Nobility by descent or lineage. White, New Recop. b. 1, tit. 5, c.
3, § 4.
HIGH COURT OF JUSTICE. See Supreme Court
of Judicature.
HIGH COURT OF PARLIAMENT. See Parliament.
HIGH DEGREE OF CARE AND DILIGENCE.
See Care.
HIDE. In old English law. A measure of land,
being as much as could be worked with one plow.
It is variously estimated at from 60 to 100 acres,
but was probably determined by local usage. Another meaning was as much land as would support
one family or the dwellers in a mansion-house.
Also a house; a dwelling-house. A hide was anciently employed as a unit of taxation. 1 Poll. &
Maitl. 347, such tax being called hidegild.
HIDE AND GAIN. In English law. A term anciently applied to arable land. Co.Litt. 85b.
HIDE LANDS. In Saxon law. Lands belonging
to a hide; that is, a house or mansion. Spelman.
HIDEL. In old English law. A place of protection; a sanctuary. St. 1 Hen. VII. cc. 5, 6; Cowell.
HIDGILD. A sum of money paid by a villein or
servant to save himself from a whipping. Fleta,
1. 1, c. 47, § 20.
HIERARCHY. Originally, government by a body
of priests. Now, the body of officers in any church
or ecclesiastical institution, considered as forming an ascending series of ranks or degrees of
power and authority, with the correlative subjection, each to the one next above. Derivatively, any
body of men, taken in their public capacity, and
considered as forming a chain of power, as above
described.
HIGH. This term, as used in various compound
legal phrases, is sometimes merely an addition of
dignity, not importing a comparison; but more
generally it means exalted, either in rank or location, or occupying a position of superiority, and
in a few instances it implies superiority in respect
to importance, size, or frequency or publicity of
use, e. g., "high seas," "highway."
As to high "Bailiff," "Constable," "Crimes,"
"Justice," "Justiciar," "License," "Prerogative
HIGHBINDER. A rough, one of a Chinese secret
society composed of blackmailers. People v. Ho
Kim You, 24 Cal.App. 451, 141 P. 950, 956.
HIGHER AND LOWER SCALE. In the practice of the English supreme court of judicature
there are two scales regulating the fees of the
court and the fees which solicitors are entitled to
charge. The lower scale applies (unless the court
otherwise orders) to the following cases: All
causes and matters assigned by the judicature
acts to the king's bench, or the probate, divorce,
and admiralty divisions; all actions of debt, contract, or tort; and in almost all causes and matters assigned by the acts to the chancery division
in which the amount in litigation is under £1,000.
The higher scale applies in all other causes and
matters, and also in actions falling under one of
the above classes, but in which the principal relief sought to be obtained is an injunction. Sweet.
HIGHEST DEGREE OF CARE. A standard of
care exacted in some jurisdictions of common carriers of passengers. The standard is relative, not
absolute, and is sometimes regarded as no more
than reasonable care measured by the circumstances. See Blashfield, Cyc. of Automobile Law
and Prac., Perm. Ed., § 2151.
HIGHEST PROVED VALUE. In an action of
trover the amount which the jury from a consideration of all the evidence, may find to be the
highest value of the property during the period
between the conversion and the trial. Durden v.
Durden, 58 Ga.App. 46, 197 S.E. 493, 494.
HIGHGRADING. The practice of stealing ore,
in mining vernacular. People v. Siderius, 29 Cal.
App.2d 361, 84 P.2d 545, 547.
HIGH-JACKER. Hi-jacker. Another name for
robber. State v. One Certain Buick Sedan, 209
Iowa, 791, 229 N.W. 173, 176.
HIGHNESS. A title of honor given to princes.
The kings of England, before the time of James I,
861
HIGHWAY
were not usually saluted with the title of "Majesty," but with that of "Highness." The children of
crowned heads generally receive the style of
"Highness." Wharton.
lic for twenty years, or dedicated by the owner of
the soil and accepted by the proper authorities and
for the maintenance of which they are responsible.
State v. Gross, 119 N.C. 868, 26 S.E. 91.
HIGHWAY. An easement acquired by the public
in the use of a road or way for thoroughfare. Bolender v. Southern Michigan Telephone Co., 182
Mich. 646, 148 N.W. 697, 700.
It includes roads, streets, alleys, lanes, courts, places,
trails, and bridges, laid out or erected as such by the public, or, if laid out and erected by others, dedicated or abandoned to the public, or made such in actions for the partition of real property. Patterson v. Munyan, 93 Cal. 128, 29
P. 250.
A free and public roadway, or street; one which
every person has the right to use. Abbott v. Duluth, C.C.Minn., 104 F. 837. Illinois Cent. R. Co. v.
Bennett, C.C.A.Miss., 296 F. 436, 437. Its prime
essentials are the right of common enjoyment on
the one hand and the duty of public maintenance
on the other. Hildebrand v. Southern Bell Telephone & Telegraph Co., 219 N.C. 402, 14 S.E.2d 252,
254, 255.
It has been said that if the word "highway" is given
its customary meaning, the phrase "public highway" is an
example of tautology—the needless or useless repetition
of the same idea, of which the law seems to furnish so
many illustrations. See Galloway v. Wyatt Metal & Boiler
Works, 181 So. 187, 189 La. 837; Blashfield, Cyc. of Automobile Law and Prac., Perm. Ed., § 3.
The generic name for all kinds of public ways, whether
carriage-ways, bridle-ways, foot-ways, bridges, turnpike
roads, railroads, canals, ferries or navigable rivers; 6 Mod.
255; Ang.Highw. c. 1; 3 Kent 432; City of St. Louis v.
Bell Place Realty Co., 259 Mo. 126, 168 S.W. 721, 722. As
to streets and alleys, Iowa Telephone Co. v. City of Keokuk, D.C., 226 F. 82, 87; Burns v. Kendall, 96 S.C. 385, 80
S.E. 621, 622. Every public thoroughfare. Oregon Short
Line R. Co. v. Pfost, 53 Idaho 559, 27 P.2d 877. It refers
to roadway or street which can be used for travel, as distinguished from way upon which road can be or is being
constructed. Allen v. Jones, 47 S.D. 603, 201 N.W. 353.
There is a difference in the shade of meaning conveyed
by two uses of the word. Sometimes it signifies right of
free passage, in the abstract, not importing anything about
the character or construction of the way. Thus, a river
is called a "highway ;" and it has been not unusual for
congress, in granting a privilege of building a bridge, to
declare that it shall be a public highway. Again, it has
reference to some system of law authorizing the taking a
strip of land, and preparing and devoting it to the use of
travelers. In this use it imports a roadway upon the soil,
constructed under the authority of these laws. Abbott.
Royal Highways. There were four royal highways in Yorkshire, three by land and one by water, where the king claimed all forfeitures. Maitl.
Domesd. Book and Beyond 87.
HIGHWAYMAN. A bandit; one who robs travelers upon the highway. Anderson v. Hartford
Accident & Indemnity Co., 77 Cal.App. 641, 247 P.
507, 510.
HIGLER. In English law. A hawker or peddler.
A person who carries from door to door, and sells
by retail, small articles of provisions, and the
like.
HIGUELA. In Spanish law. A receipt given by
an heir of a decedent, setting forth what property
he has received from the estate.
HIIS TESTIBUS. Words formerly used in deeds,
signifying these being witness. They have been
disused since Henry VIII. Co.Litt.; Cowell.
HI-JACKER. High-Jacker. See that title.
HIKENILD STREET. One of the four
Commissioners of Highways. Public officers
appointed in the several counties and municipalities, in many states, to take charge of the opening, altering, repair, and vacating of highways
within their respective jurisdictions.
great
Roman roads of Britain. More commonly called
"Ikenild Street."
Common highway. A road to be used by the
community at large for any purpose of transit
or traffic. Ham. N. P. 239; Railway Co. v. State,
23 Fla. 546, 3 So. 158, 11 Am.St.Rep. 395.
Highway Acts, or Laws. The body or system of
laws governing the laying out, repair, and use of
highways.
Highway Crossing. A place where the track of
a railroad crosses the line of a highway.
Highway-rate. In English law. A tax for the
maintenance and repair of highways, chargeable
upon the same property that is liable to the poorrate.
Highway Robbery. See Robbery.
Highway Tax. A tax for and applicable to the
making and repair of highways. Stone v. Bean,
15 Gray (Mass.) 44.
Public Highway. One under the control of and
kept by the public, established by regular proceed.
ings for the purpose, or generally used by the pub-
HILARY
RULES. A collection of orders and
forms extensively modifying the pleading and
practice in the English superior courts of common
law, established in Hilary term, 1834. Stimson.
HILARY TERM. In English law. A term of
court, beginning on the 11th and ending on the
31st of January in each year. Superseded (1875)
by Hilary sittings, which begin January 11th, and
end on the Wednesday before Easter.
HINDENI HOMINES.
A society of men. The
Saxons ranked men into three classes, and valued
them, as to satisfaction for injuries, etc., accord.
ing to their class. The highest class were valued
at 1,200s., and were called "twelf hindmen;" the
middle class at 600s., and called "sexhindmen;"
the lowest at 200s., called "twyhindmen." Their
wives were termed "hindas." Brompt. Leg. Alfred. c. 12.
HINDER AND DELAY. A phrase used to signify an act amounting to an attempt to defraud,
rather than a successful fraud; to put some obstacle in the path of, or interpose some time, unjustifiably, before a creditor can realize what is ow-
862
IILOTIIBOTE
ed out of his debtor's property. Walker v. Sayers, 5 Bush., Ky., 582.
for a price, stipend, or recompense, while borrowing 14
merely gratuitous. 2 Bl.Comm. 453; Neel v. State, 33 Tex.
Cr.R. 408, 26 S.W. 726.
HINDU LAW. The system of native law prevailing among the Gentoos, and administered by the
government Of British India. It is not the law
of India or of any defined region. It is the law
of castes, class, orders and even families which
the Hindus carry. about with them. 17 L.Q.R. 209.
Bryce, Extension of Law in 1 Sel. Essays in Anglo-Amer. Leg. Hist. 597.
HIRING AT WILL. A general or indefinite hiring. Long v. Forbes, 58 Wyo. 533, 136 P.2d 242,
246.
HIRST, HURST. In old English laws A wood.
Co.Litt. 4b.
HIS. This pronoun, generically used, may refer
to a person of either sex. Danforth v. Emmons,
124 Me. 156, 126 A. 821, 823; Wilmette v. Brachle,
110 Ill.App. 356.
HINE, or HIND. In old English law. A husbandry servant.
Its use in a written instrument, in referring to a person
whose Christian name is designated therein by a mere initial, is not conclusive that the person referred to is a male;
it may be shown by parol that the person intended is a
female. Berniaud v. Beecher, 71 Cal. 38, 11 P. 802.
HINEFARE. In old English law. The loss or
departure of a servant from his master. Domesday.
HINEGELD. A ransom for an offense committed
by a servant. Cowell.
HIPOTECA. In Spanish law. A mortgage of
real property.
HIRCISCUNDA. See Herciscunda.
HIRE, v. To purchase the temporary use of a
thing, or to stipulate for the labor or services of
another. See Hiring.
For definitions of the various species of this
class of contracts, under their Latin names, see
Locatio and following titles.
To engage in service for a stipulated reward, as to hire a
servant for a year, or laborers by the day or month; to
engage a man to temporary service for wages. To "employ" is a word of more enlarged signification. A man
hired to labor is employed, but a man may be employed in
a work who is not hired. Ozark Minerals Co. v. Murphy,
384 Ill. 94, 51 N.E.2d 197, 201.
HIRE, n. Compensation for the use of a thing,
or for labor or services. State v. Kenyon, Inc.,
Tex.Civ.App., 153 S.W.2d 195, 197.
A bailment in which compensation is to be given for the use of a thing, or for labor and services
about it. 2 Kent 456; Story, Bailm. § 359. The
divisions of this species of contract are denoted
by Latin names.
HIREMAN. A subject. Du Cange.
HIRER. One who hires a thing, or the labor or
services of another person. Turner v. Cross, 83
Tex. 218, 18 S.W. 578, 15 L.R.A. 262.
HIRING. A contract by which one person grants
to another either the enjoyment of a thing or the
use of the labor and industry, either of himself or
his servant, during a certain time, for a stipulated compensation, or by which one contracts for
the labor or services of another about a thing bailed to him for a specified purpose.
A contract by which one gives to another the temporary
possession and use of property, other than money, for
reward, and the latter agrees to return the same to the
former at a future time.
Synonyms
"Hiring" and "borrowing" are both contracts by which a
qualified property may be transferred to the hirer or borrower, and they differ only in this, that hiring is always
HIS EXCELLENCY. In English law. The title
of a viceroy, governor general, ambassador, or
commander in chief.
In American law. This title is given to the
governor of Massachusetts by the constitution of
that state; and it is commonly given, as a title of
honor and courtesy, to the governors of the other
states and to the president of the United States.
It is also customarily used by foreign ministers
in addressing the secretary of state in written
communications.
HIS HONOR. A title given by the constitution of
Massachusetts to the lieutenant governor of that
commonwealth. Mass. Const. part 2, c. 2, § 2,
art. 1. It is also customarily given to some inferior magistrates, as the mayor of a city.
HIS TESTIBUS. Lat. These being witnesses.
The attestation clause in old deeds and charters.
See Hiis Testibus.
HISSA. A lot or 'portion; a share of revenue or
rent. Wilson's Gloss. Ind.
HITHERTO. In legal use, this term always restricts the matter in connection with which it is
employed to a period of time already passed. Mason v. Jones, 13 Barb. (N.Y.) 479.
HIWISC. In old English law. A hide of land.
According to Maitland (Domesday Book 359), a
household.
HLAF ZETA. Sax. A servant fed at his master's
cost.
HLAFORD. Sax. A lord. 1 Spence, Ch. 36.
HLAFORDSOCNA. Sax. A lord's protection.
Du Cange.
HLAFORDSWICE. Sax. In Saxon law. The
crime of betraying one's lord, (prodittio donitini;)
treason. Crabb, Eng.Law, 59, 301.
HLASOCNA. Sax. The benefit of the law. Du
Cange.
HLOTHBOTE. In Saxon law. A fine for being
present at an unlawful assembly. Spelman.
863
IELOTHE
HLOTHE. In Saxon law. An unlawful assembly a HOGASTER. In old English law. A sheep of the
from eight to thirty-five, inclusive. Cowell.
second year. Fleta, lib. 2, c. 79, §§ 4, 12. A young
hog. Cowell.
HOASTMEN. In English law. An ancient gild
or fraternity at Newcastle-upon-Tyne, who dealt
HOGGUS, or HOGIETUS. A hog or swine. Cowin sea coal. St. 21 Jac. I. c. 3.
ell.
HOBBIT. A measure of weight in use in Wales,
equal to 168 pounds, being made up of four Welsh
pecks of 42 pounds each. Hughes v. Humphreys,
26 Eng. L. & Eq. 132.
HOBBLERS. In old English law. Light horsemen or bowmen; also certain tenants, bound by
their tenure to maintain a little light horse for
giving notice of any invasion, or such like peril,
towards the seaside. Camden, Brit.
HOC. Lat. This. Hoc intuitu, with this expectation. Hoc loco, in this place. Hoc nomine, in this
name. Hoc titulo, under this title. Hoc voce, under this word.
HOC PARATUS EST VERIFICARE. Lat. This
he is ready to verify.
HOC QUIDEM PERQUAM DURUM EST, SED
ITA LEX SCRIPTA EST. Lat. This indeed is exceedingly hard, but so the law is written; such is
the written or positive law. An observation quoted
by Blackstone as used by Ulpian in the civil law;
and applied to cases where courts of equity have
no power to abate the rigor of the law. Dig. 40,
9, 12, 1; 3 Bl. Comm. 430.
HOC SERVABITUR QUOD INITIO CONVENIT.
This shall be preserved which is useful in the
beginning. Dig. 50, 17, 23; Bract. 73b.
HOCCUS SALTIS. A hoke, hole, or lesser pit of
salt. Cowell.
HOCK DAY. See Hock-Tuesday Money, infra.
HOCK-TUESDAY MONEY. This was a duty given to the landlord that his tenants and bondmen
might solemnize the day on which the English
conquered the Danes, being the second Tuesday
after Easter week. Cowell. See Hoke Day, infra.
HOCKETTOR, or HOCQUETEUR. A knight of
the post; a decayed man; a basket carrier. Cowell.
HODGE-PODGE ACT. A name applied to a statute which comprises a medley of incongruous subjects.
HOGHENHYNE.
In Saxon law. A house-servant.
Any stranger who lodged three nights or more at
a man's house in a decennary was called "hoghenhyne," and his host became responsible for his
acts as for those of his servant.
HOGSHEAD. A measure of a capacity containing
the fourth part of a tun, or sixty-three gallons.
Cowell. A large cast, of indefinite contents, but
usually containing from one hundred to one hundred and forty gallons. Webster.
HOKE DAY (Heck Day). A day of feasting or
mirth kept formerly in England on the second or
third Tuesday after Easter; Cent. Dict.; or, as a
recent writer concludes, the first Sunday after Easter; 28 L.Q.Rev. 283, where it is suggested that
it was originally the great spring festival of the
pre-Roman British. See Hock-Tuesday Money,
supra.
HOLD, v. 1. To possess in virtue of a lawful
title; as in the expression, common in grants, "to
have and to hold," or in that applied to notes, "the
owner and holder." Chicago Home for Girls v.
Carr, 300 Ill. 478, 133 N.E. 344, 346.
2. To be the grantee or tenant of another; to
take or have an estate from another. Properly,
to have an estate on condition of paying rent, or
performing service.
3. To adjudge or decide, spoken of a court, particularly to declare the conclusion of law reached
by the court as to the legal effect of the facts disclosed.
4. To maintain or sustain; to be under the necessity or duty of sustaining or proving; as when
it is said that a party "holds the affirmative" or
negative of an issue in a cause.
5. To bind or obligate; to restrain or constrain; to keep in custody or under an obligation;
as in the phrases "hold to bail," "hold for court,"
"held and firmly bound," etc.
HOG. This word may include a sow; Shubrick
v. State, 2 S.C. 21; a pig; Lavender v. State, 60
Ala. 60; Washington v. State, 58 Ala. 355; and
may refer to dead as well as a living animal;
Whitson v. Culbertson, 7 Ind. 195; Hunt v. State,
55 Ala. 140; Reed v. State, 16 Fla. 564; contra,
State v. Hedrick, 272 Mo. 502, 199 S.W. 192, L.R.A.
1918C, 574; and it is synonymous with swine;
Rivers v. State, 10 Tex.App. 177.
6. To administer; to conduct or preside at;
to convoke, open, and direct the operations of ;
as to hold a court, hold pleas, etc. Smith v.
People, 47 N.Y. 334.
7. To prosecute; to direct and bring about officially; to conduct according to law; as to hold
an election.
8. To possess; to occupy; to be in possession
and administration of; as to hold office.
9. To keep; to retain; to maintain possession
of or authority over. Dimock State Bank v. Boehnen, 46 S.D. 50, 190 N.W. 485.
HOGA. In old English law. A hill or mountain.
In old English, a how. Grene hoga, Grenehow.
Domesday; Spelman.
Hold over. To retain possession as tenant of
property leased, after the end of the term. To continue in possession of an office and continue to ex-
864
HOMAGE
A.2d 190, 192. A day upon which the usual operations of business are suspended and the courts
.
closed, and, generally, no legal process is served.
United Cigar Stores Co. v. Worth-Gyles Grain Co.,
212 Ill.App. 26.
ercise its functions, after the end of the officer's
lawful term. State v. Simon, 20 Or. 365, 26 P. 174.
Hold pleas. To hear or try causes. 3 B1.Comm.
35, 298.
HOLD, n. In old law. Tenure. A word constantly occurring in conjunction with others, as
freehold, leasehold, copyhold, etc., but rarely met
with in the separate form.
Legal holiday. See Legal Holiday.
Public holiday. A legal holiday.
HOLM. An island in a river or the sea. Spelman. Plain grassy ground upon water sides or in
the water. Blount. Low ground intersected with
streams. Spelman.
HOLDER. The holder of a bill of exchange, promissory note, or check is the person who has legally
acquired possession of the same, by indorsement
or delivery, and who is entitled to receive payment
of the instrument. Crocker-Woolworth Nat. Bank
v. Nevada Bank, 139 Cal. 564, 73 P. 456, 63 L.R.A.
245, 96 Am.St.Rep. 169.
HOLOGRAFO. In Spanish law. A holograph.
An instrument (particularly a will) wholly in the
handwriting of the person executing it; or which,
to be valid, must be so written by his own hand.
HOLDER IN DUE COURSE. A holder who has
taken a bill of exchange (check or note) complete
and regular on the face of it, under the following
conditions, namely: (a) That he became the holder of it before it was overdue, and without notice
that it had been previously dishonored, if such
was the fact. (b) That he took the bill (check
or note) in good faith and for value, and that at
the time it was negotiated to him he had no notice
of any defect in the title of the person who negotiated it. Uniform Negotiable Instrument Act, §
52; Peoples Loan & Finance Co. v. Ledbetter, 69
Ga.App. 729, 26 S.E.2d 671, 674.
HOLOGRAPH. A will or deed written entirely
by the testator or grantor with his own hand.
Estate of Billings, 64 Cal. 427, 1 P. 701; In re
Irvine's Estate, 114 Mont. 577, 139 P.2d 489, 147
A.L.R. 882.
HOLT. Sax. In old English law. A wood or
grove. Spelman; Cowell; Co. Litt. 4b.
HOLY ORDERS. In ecclesiastical law. The orders of bishops, (including archbishops,) priests,
and deacons in the Church of England. The Roman canonists had the orders of bishop, (in which
the pope and archbishops were included,) priest,
deacon, subdeacon, psalmist, acolyte, exorcist,
reader, ostiarius. 3 Steph.Comm. 55, and note a.
HOLDES. Sax. In Saxon law. A military commander. Spelman.
HOLDING. In English law. A piece of land held
under a lease or similar tenancy for agricultural,
pastoral, or similar purposes.
In Scotch law. The tenure or nature of the right
given by the superior to the vassal. Bell.
General
Holding over. See Hold, v.
Holding up the hand. In criminal practice. A
formality observed in the arraignment of prisoners. Held to be not absolutely necessary. 1 W.
Bl. 3, 4.
HOLDING COMPANY. A super-corporation
which owns or at least controls such a dominant interest in one or more other corporations that it is
enabled to dictate their policies through voting
power; a corporation organized to hold the stock
of other corporations; any company, incorporated
or unincorporated, which is in a position to control
or materially influence the management of one or
more other companies by virtue, in part at least,
of its ownership or securities in the other company or companies. Cities Service Co. v. Koeneke,
137 Kan. 7, 20 P.2d 460, 469, 87 A.L.R. 16; Kelley,
Glover & Vale v. Heitman, 220 Ind. 625, 44 N.E.2d
981, 985.
HOLIDAY. A religious festival; a day set apart
for commemorating some important event in history; a day of exemption from labor. Webster;
Lamberti v. City of Stamford, 131 Conn. 396, 40
Black's Law Dictionary Revised 4th Ed.-55
HOMAGE. In feudal law. A service (or the ceremony of rendering it) which a tenant was bound
to perform to his lord on receiving investiture of
a fee, or succeeding to it as heir, in acknowledgment of the tenure. It is described by Littleton
as the most honorable service of reverence that
a free tenant might do to his lord. The ceremony
was as follows: The tenant, being ungirt and with
bare head, knelt before the lord, the latter sitting,
and held his hands extended and joined between
the hands of the lord, and said: "I become your
man [home] from this day forward, of life and
limb and earthly honor, and to you will be faithful and loyal, and bear you faith, for the tenements that I claim to hold of you, saving the
faith that I owe unto our sovereign lord the king,
so help me God." The tenant then received a kiss
from the lord. Homage could be done only to the
lord himself. Litt. § 85; Glanv. lib. 9, c. 1; 1' Bract.
fols. 77b, 78-80; Wharton.
"Homage" is to be distinguished from "fealty," another
incident of feudalism, and which consisted in the solemn
oath of fidelity made by the vassal to the lord, whereas
homage was merely an acknowledgment of tenure. If the
homage was intended to include fealty, it was called "liege
homage ;" but otherwise it was called "simple homage."
Brown.
HOMAGE ANCESTRAL. In feudal law. Homage
was called by this name where a man and his
ancestors had immemorially held of another and
his ancestors by the service of homage, which
bound the lord to warrant the title, and also to
hold the tenant clear of all services to superior
865
HOMAGE
lords. If the tenant aliened in fee, his alienee was
a tenant by homage, but not by homage ancestral.
Litt. § 143; 2 Bl.Comm. 300.
HOMAGE JURY. A jury in a court-baron, consisting of tenants that do homage, who are to
inquire and make presentments of the death of
tenants, surrenders, admittances, and the like.
HOMAGE LIEGE. That kind of homage which
was due to the sovereign alone as supreme lord,
and which was done without any saving or exception of the rights of other lords. Spelman.
Home is not synonymous with domicil, as used in international law, but has a more restricted meaning, Inhabitants of Jefferson v. Washington, 19 Me. 293.
Home includes place where one eats, bathes, reads, visits
and rests, as well as sleeping place, Jakeway v. John V.
Bauer Co., 218 N.Y.S. 193, 195, 218 App. Div. 302; and, as
used in deed or will may include care or right of maintenance, Gwinn v. Hobbs, 83 Ind.App. 263, 141 N.E. 812, 818;
In re Burr's Estate, 144 N.Y.S. 926, 927, 83 Misc. 240.
HOME BREW. An intoxicating home made beer.
Jones v. State, 31 Ala.App. 378, 17 So.2d 545.
HOMAGER. One who does or is bound to do
homage. Cowell.
HOMAGIO RESPECTUANDO. A writ to the escheator commanding him to deliver seisin of lands
to the heir of the king's tenant, notwithstanding
his homage not done. Fitzh. Nat. Brev. 269.
HOMAGIUM. L. Lat. Homage
regard to which he retains residence or to which
he intends to return. Dicey, Confl. L. 81-; Langhammer v. Munter, 80 Md. 518, 31 A. 300, 27 L.R.
A. 330.
(q. v.).
HOMAGIUM LIGIUM. Liege homage; that kind
of homage which was due to the sovereign alone
as supreme lord, and which was done without any
saving or exception of the rights of other lords.
Spelman. So called from ligando, (binding,) because it could not be renounced like other kinds
of homage.
HOMAGIUM, NON PER PROCURATORES NEC
PER LITERAS FIERI POTUIT, SED IN . PROPRIA PERSONA TAM DOMINI QUAM TENENTIS CAPI DEBET ET FIERI. Co. Litt. 68. Homage cannot be done by proxy, nor by letters, but
must be paid and received in the proper person,
as well of the lord as the tenant.
HOMAGIUM PLANUM. In feudal law. Plain
homage; a species of homage which bound him
who did it to nothing more than fidelity, without
any obligation either of military service or attendance in the courts of his superior. 1 Robertson's
Car. V., Appendix, note 8.
HOME OFFICE. The department of state through
which the English sovereign administers most of
the internal affairs of the kingdom, especially
the police, and communicates with the judicial
functionaries. As applied to a corporation, its principal office within the state or country where it
was incorporated or formed.
HOME PORT. In maritime law, the home port
of a vessel is either the port where she is registered or enrolled, or the port at or nearest to
which her owner usually resides, or, if there be
more than one owner, the port at or nearest to
which the husband, or acting and managing owner
resides. Corn. v. Ayer & Lord Tie Co., 77 S.W. 688,
25 Ky.Law Rep. 1068. But for some purposes any
port where the owner happens at the time to be
with his vessel is its home port. Lever Transp.
Co. v. 011inger, 205 Ala. 22, 87 So. 597, 598.
HOME RULE. In constitutional and statutory
law, local self-government, or the right thereof.
Attorney General v. Lowrey, 131 Mich. 639, 92 N.
W. 289. In British politics, a programme or plan
(or a more or less definitely formulated demand)
for the right of local self-government for Ireland
under the lead of an Irish national parliament.
Lemaire v. Crockett, 116 Me. 263, 101 A. 302, 303.
HOME, or HOMME. L. Fr. Man; a man.
HOMAGIUM REDDERE. To renounce homage.
This was when a vassal made a solemn declaration of disowning and defying his lord; for which
there was a set form and method prescribed by
the feudal laws. Bract. 1. 2, c. 35, § 35.
HOME NE SERA PUNY PUR SUER DES BRIEFES EN COURT LE ROY, SOIT IL A DROIT OU A
TORT. A man shall not be punished for suing
out writs in the king's court, whether he be right
or wrong. 2 Inst. 228.
HQMAGIUM SIMPLEX. In feudal law. Simple
homage; that kind of homage which was merely
an acknowledgment of tenure, with a saving of
the rights of other lords. Harg. Co. Litt. note 18,
lib. 2.
HOMBRE BUENO. In Spanish law. The judge
of a district. Also an arbitrator chosen by the
parties to a suit. Also a man in good standing;
one who is competent to testify in a suit.
HOME. One's own dwelling place; the house in
which one lives; especially the house in which
one lives with his family; the habitual abode of
one's family; a dwelling house. Mann v. Haines,
146 Kan. 988, 73 P.2d 1066, 1072. That place in
which one in fact resides with the intention of residence, or in which he has so resided, and with
HOMESOKEN, HOMSOKEN. See Hamesecken.
HOMESTALL. A mansion-house. Dickinson v.
Mayer, 11 Heisk. (Tenn.) 521.
HOMESTEAD. The home, the house and the adjoining land where the head of the family dwells;
the home farm. The fixed residence of the head
of a family, with the land and buildings surrounding the main house. Oliver v. Snowden, 18 Fla.
825, 43 Am.Rep. 338.
Technically, and under the modern homestead
laws, an artificial estate in land, devised to protect the possession and enjoyment of the owner
against the claims of his creditors, by withdrawing
the property from execution and forced sale, so
long as the land is occupied as a home. Bucking-
866
HOMICIDE
ham v. Buckingham, 81 Mich. 89, 45 N.W. 504. For
"Family," see that title.
Business Homestead. In Texas, a place or property (distinct from the home of a family) used
and occupied by the head of a family as a place
to exercise his calling or business, which is exempt
by law. Spence v. State Nat. Bank of El Paso,
Tex.Civ.App., 294 S.W. 618, 623. A curious misnomer, the word "homestead" in this phrase having lost entirely its original meaning, and being
retained apparently only for the sake of its remote and derivative association with the idea of
an exemption.
Homestead Corporations. Corporations organized for the purpose of acquiring lands in large
tracts, paying off incumbrances thereon, improving and subdividing them into homestead lots or
parcels, and distributing them among the shareholders, and for the accumulation of a fund for
such purposes. Civ. Code Cal. § 557.
Homestead Entry. See Entry.
Homestead Exemption Laws. Laws passed in
most of the states allowing a householder or head
of a family to designate a house and land as his
homestead, and exempting the same homestead
from execution for his general debts.
Homestead Right. The personal right to the
beneficial, peaceful and uninterrupted use of the
home property free from claims of creditors. Hill
v. Fir§t Nat. Bank, 79 Fla. 391, 84 So. 190, 192, 20
A.L.R. 270.
Probate Homestead. A homestead set apart by
the court for the use of a surviving husband or
wife and the minor children out of the common
property, or out of the real estate belonging to
the deceased. In re Noah's Estate, 73 Cal. 590, 15
P. 290, 2 Am.St.Rep. 834.
Rural Homestead. See Urban Homestead, infra.
Urban Homestead. The residence or dwelling
place of a family in a city, claimed or set apart
as a homestead, including the principal house and
lot, and such lots as are used in connection therewith, contributing to its enjoyment, comfort, and
convenience. Harris v. Matthews, 36 Tex. 424, 81
S.W. 1204. Nevertheless, property may be located
within the corporate limits of a town or city, and
still constitute a "rural homestead," or it may be
without the corporate limits, and constitute an
"urban homestead." Boerner v. Cicero Smith
Lumber Co., Tex.Civ.App., 293 S.W. 632, 636.
HOMICIDAL. Pertaining to homicide; relating
to homicide, impelling to homicide; as a homicidal mania. (See Insanity.)
HOMICIDE. The killing of any human creature.
4 Bl.Comm. 177. The killing of one human being
by the act, procurement, or omission of another.
Pen. Code N. Y. § 179. The act of a human being
in taking away the life of another human being.
Sanders v. State, 113 Ga. 267, 38 S.E. 84,2. Hogan
v. State, 127 Tex.Cr.R. 182, 74 S.W.2d 988, 994.
Homicide is not necessarily a crime. It is a necessary
ingredient of the crimes of murder and manslaughter, but
there are other cases in which homicide may be committed
without criminal intent and without criminal consequences,
as, where it is done in the lawful execution of a judicial
sentence, in self-defense, or as the only possible means of
arresting an escaping felon. The term "homicide" is
neutral; while it describes the act, it pronounces no judgment on its moral or legal quality. People v. Connors, 35
N.Y.S. 475, 13 Misc. 582.
Classification
Homicide is ordinarily classified as "justifiable," "excusable," and "felonious." For the definitions of these terms,
and of some other compound terms, see infra.
Culpable homicide
Described as a crime varying from the very lowest culpability, up to the very verge of murder. Lord Moncrieff,
Arkley, 72.
Excusable homicide
The killing of a human being, either by misadventure or
in self-defense. U. S. v. King, C.C.N.Y., 34 F. 306. The
name itself imports some fault, error, or omission, so trivial, however, that the law excuses it from guilt of felony,
though in strictness it judges it deserving of some little
degree of punishment. 4 Bl.Comm. 182. It is of two sorts,
—either per infortunium, by misadventure, or se defendendo, upon a sudden affray. Homicide per infortunium is
where a man, doing a lawful act, without any intention of
hurt, unfortunately kills another; but, if death ensue from
any unlawful act, the offense is manslaughter, and not misadventure. Homicide se defendendo is where a man kills
another upon a sudden affray, merely in his own defense,
or in defense of his wife, child, parent, or servant, and not
from any vindictive feeling. 4 BI.Comm. 182.
Felonious homicide
The wrongful killing of a human being, of any age or
either sex, without justification or excuse in law; of which
offense there are two degrees, manslaughter and murder.
4 Bl.Comm. 190; 4 Steph.Comm. 111.
Homicide by misadventure
The accidental killing of another, where the slayer is
doing a lawful act, unaccompanied by any criminally careless or reckless conduct. Commonwealth v. Flax, 331 Pa.
145, 200 A. 632, 637. The same as "homicide per infortunium." State v. Disalvo, Del., 2 W.W.Harr. 232, 121 A.
661, 663.
Homicide by necessity
A species of justifiable homicide, because it arises from
some unavoidable necessity, without any will, intention, or
desire, and without any inadvertence or negligence in the
party killing, and therefore without any shadow of blame.
As, for instance, by virtue of such an office as obliges one,
in the execution of public justice, to put a malefactor to
death who has forfeited his life to the laws of his country.
But the law must require it, otherwise it is not justifiable.
4 Bl.Comm. 178.
Homicide per infortunium
Homicide by misfortune, or accidental homicide; as
where a man doing a lawful act, without any intention of
hurt, unfortunately kills another; a species of excusable
homicide. 4 BI.Comm. 182; 4 Steph.Comm. 101.
Homicide se defendendo
Homicide in self-defense; the killing of a person in selfdefense upon a sudden affray, where the slayer had no
other possible (or, at least, probable) means of escaping
from his assailant. 4 Bl.Comm. 183-186; 4 Steph.Comm.
103-105. A species of excusable homicide. Id.; 1 Russ.
Crimes, 660.
Justifiable homicide
Such as is committed intentionally, but without any evil
design, and under such circumstances of necessity or duty
as render the act proper, and relieve the party from any
shadow of blame; as where a sheriff lawfully executes a
sentence of death upon a malefactor, or where the killing
takes place in the endeavor to prevent the commission of
felony which could not be otherwise avoided. Moran v.
People, 163 Ill. 382, 45 N.E. 230. "Justifiable homicide" is
the taking of a human life under circumstances of justification, as a matter of . right, such as self-defense or other
causes set out in the statute. Gaunce v. State, 22 Okl.Cr.
867
HOMICIDE
361, 211 P. 517, 518. "Justifiable homicide" is the killing
of a human being by commandment of the law in execution
of public justice; by permission of the law in advancement of public justice; in self-defense; or in defense of
habitation, property or person, against one who manifestly
intends or endeavors, by violence or surprise, to commit a
felony on either. Paramore v. State, 161 Ga. 166, 129 S.E.
772, 778.
Negligent homicide
In Texas, the act of causing the death of another by negligence and carelessness in the performance of a lawful act.
Anderson v. State, 27 Tex. App. 177, 11 S. W. 33, 3 L.R.A.
644, 11 Am.St.Rep. 189.
HOMICIDIUM, Lat. Homicide (q. v.).
Homicidium ex casu, homicide by accident.
Homicidium ex justitia, homicide in the administration of justice, or in the execution of the sentence of the law.
Homicidium ex necessitate, homicide from inevitable necessity, as for the protection of one's
person or property.
Homicidium ex voluntate, voluntary or willful
homicide. Bract. fols. 120b, 121.
HOMINATIO. The mustering of men; the doing
of homage.
HOMINE CAPTO IN WITHERNAMIUM. A writ
to take him that had taken any bond man or woman, and led him or her out of the country, so
that he or she could not be replevied according
to law. Reg. Orig. 79.
HOMINE ELIGENDO. In old English law. A.
writ directed to a corporation, requiring the members to make choice of a man to keep one part
of the seal appointed for statutes merchant, when
a former is dead, according to the statute of Acton Burnell. Reg. Orig. 178; Wharton.
HOMINE REPLEGIANDO. In English law. A
writ which lay to replevy a man out of prison,
or out of the custody of any private person, in
the same manner that chattels taken in distress
may be replevied. Brown.
HOMMES FEODAUX. Fr. In feudal law. Feudal tenants; the same with hommes de fief (q. v.).
Montesq., Esprit des Lois, liv. 28, c. 36.
HOMO. Lat. A man; a human being, male or
female; a vassal, or feudal tenant; a retainer,
dependent, or servant.
HOMO CHARTULARIUS. A slave manumitted
by charter.
HOMO COMMENDATUS. In feudal law. One
who surrendered himself into the power of another for the sake of protection or support. See Commendation.
HOMO ECCLESIASTICUS. A church vassal;
one who was bound to serve a church, especially
to do service of an agricultural character. Spelman.
HOMO EXERCITALIS. A man of the army, (exercitus;) a soldier.
HOMO FEODALIS. A vassal or tenant; one who
held a fee, (feodum,) or part of a fee. Spelman.
HOMO FISCALIS, or FISCALINUS. A servant
or vassal belonging to the treasury or fiscus.
HOMO FRANCUS. In old English law. A freeman. A Frenchman.
HOMO INGENUUS. A freeman. A free and lawful man. A yeoman.
HOMO LIBER. A free man; a freeman lawfully
competent to act as juror. Ld. Raym. 417; Kebl.
563. An allodial proprietor, as distinguished from
a vassal or feudatory. This was the sense of the
term in the laws of the barbarous nations of Europe. Calvinus, Lex. Alode.
HOMO LIGIUS. A liege man; a subject; a king's
vassal. The vassal of a subject.
HOMINES. Lat. In feudal law. Men; feudatory
tenants who claimed a privilege of having their
causes, etc., tried only in their lord's court.
Paroch. Antiq. 15.
HOMO NOVUS. In feudal law. A new tenant or
vassal; one who was invested with a new fee.
Spelman. Also one who, after conviction of a
crime, had been pardoned, thus "making a new
man of him."
HOMINES LIGII. Liege men; feudal tenants or
vassals, especially those who held immediately of
the sovereign. 1 Bl.Comm. 367.
HOMO PERTINENS. In feudal law. A feudal
bondman or vassal; one who belonged to the
soil, (qui glebce adscribitur.)
HOMINUM CAUSA JUS CONSTITUTUM EST.
Law is established for the benefit of man.
HOMO POTEST ESSE HABILIS ET INHABILIS
DIVERSIS TEMPORIBUS. 5 Coke, 98. A man
may be capable and incapable at different times.
HOMIPLAGIUM. In old English law. The maiming of a man. Blount.
HOMO REGIUS. A king's vassal.
HOMME. Fr. Man; a man. The term "man"
as sometimes used may include a woman or women. This is expressly stated in Civ. Code La. art.
3556, No. 1.
HOMO ROMANUS. A Roman. An appellation
given to the old inhabitants of Gaul and other
Roman provinces, and retained in the laws of the
barbarous nations. Spelman.
HOMMES DE FIEF. Fr. In feudal law. Men
of the fief; feudal tenants; the peers in the lords'
courts. Montesq., Esprit des Lois, liv. 28, c. 27.
HOMO TRIUM LITTERARUM. A man of the
three letters; that is, the three letters, "f," "u,"
"r;" the Latin word fur meaning "thief."
.868
HONORARY
HONOR, n. In English law, a seigniory of several manors held under one baron or lord paramount. Also those dignities or privileges, degrees
of nobility, knighthood, and other titles, which
flow from the crown as the fountain of honor.
Wharton.
In American law. The customary title of courtesy given to judges of the higher courts, and occasionally to some other officers; as "his honor,"
"your honor."
HOMO VOCABULUM EST NATURZE; PERSONA JURIS CIVILIS. Man (homo) is a term
of nature; person (persona) of civil law. Calvin.
HOMOLOGACION. In Spanish law. The tacit
consent and approval inferred by law from the
omission of the parties, for the space of ten days,
to complain of the sentences of arbitrators, appointment of syndics, or assignees of insolvents,
settlements of successions, etc. Also the approval
given by the judge of certain acts and agreements
for the purpose of rendering them more binding
and executory. Escriche.
Act of honor. When a bill has been protested,
and a third person wishes to take it up, or accept
it, for the "honor" (credit) of one or more of the
parties, the notary draws up an instrument, evidencing the transaction, which is called by this
name.
HOMOLOGARE. In the civil law. To confirm or
approve; to consent or assent; to confess. Calvin.
HOMOLOGATE. In modern civil law. To approve; to confirm; as a court homologates a proceeding. See Homologation. Literally, to use the
same words with another; to say the like. Viales
v. Gardenier, 9 Mart. 0. S. (La.) 324. To assent
to what another says or writes.
HOMOLOGATION. In the Civil law. Approbation; confirmation by a court of justice; a judgment which orders the execution of some act.
Merl. Repert. The term is also used in Louisiana.
Hecker v. Brown, 104 La. 524, 29 So. 232.
In English law. An estoppel in pais. L.R. 3
App.Cas. 1026.
In Scotch law. An act by which a person approves of a deed. The effect of which is to render
that deed, though in itself defective, binding upon
the person by whom it is homologated. Bell.
Confirmation of a voidable deed.
HOMONYMIZE. A term applied in the civil law
to cases where a law was repeated, or laid down
in the same terms or to the same effect, more than
once. Cases of iteration and repetition. 2 Kent,
Comm. 489, note.
HONDHABEND. Sax. Having in hand. See
Handhabend.
HONESTE VIVERE. Lat. To live honorably,
creditably, or virtuously. One of the three general
precepts to which Justinian reduced the whole doctrine of the law, (Inst. 1, 1, 3; Bract. fols. 3, 3b,)
the others being alterum non lcedere, (not to injure others,) and suum cuique tribuere, (to render to every man his due.)
HONESTUS. Lat. Of good character or standing. Coram duobus vel pluribus viris legalibus et
honestis, before two or more lawful and good men.
Bract. fol. 61.
HONI. See Hony.
HONOR, v. To accept a bill of exchange, or to
pay a note, check, or accepted bill, at maturity and
according to its tenor. Peterson v. Hubbard, 28
Mich. 199; Clarke v. Cock, 4 East, 72; Lucas v.
Groning, 7 Taunt. 168. .
Honor courts. Tribunals held within honors or
seigniories.
Office of honor. As used in constitutional and
statutory provisions, this term denotes a public
office of considerable dignity and importance, to
which important public trusts or interests are
confided, but which is not compensated by any
salary or fees, being thus contrasted with an "office of profit." See Dickson v. People, 17 Ill. 193.
HONORABLE. A title of courtesy given in England to the younger children of earls, and the children of viscounts and barons; and, collectively, to
the house of commons. In America, the word is
used as a title of courtesy for various classes of
officials, but without any clear lines of distinction.
HONORABLE DISCHARGE. A formal final judgment passed by the government upon the entire
military record of a soldier, and an authoritative
declaration by the government that he has left
the service in a status of honor. Parker v. Anderson, 112-Vt. 371, 25 A.2d 41, 44, Zearing v. Johnson, 10 Cal.App.2d 654, 52 P.2d 1019, 1020.
HONORARIUM. In the civil law. An honorary
or free gift; a gratuitous payment, as distinguished from hire or compensation for service; a lawyer's or counsellor's fee. Dig. 50, 13, 1, 10-12.
A voluntary reward for that for which no remuneration
could be collected by law. Cunningham v. Commissioner of
Internal Revenue, C.C.A., 67 F.2d 205. A voluntary donation, in consideration of services which admit of no compensation in money ; in particular, to advocates at law,
deemed to practice for honor or influence, and not for
fees. McDonald v. Napier, 14 Ga. 89.
HONORARIUM JUS. Lat. In Roman law. The
law of the praetors and the edicts of the cediles.
HONORARY. As applied to public offices and
other positions of responsibility or trust, this term
means either that the office or title is bestowed
upon the incumbent as a mark of honor or compliment, without intending to charge him with
the active discharge of the duties of the place, or
else that he is to receive no salary or other compensation in money, the honor conferred by the
incumbency of the office being his only reward.
Haswell v. New York, 81 N.Y. 258. In other connections, it means attached to or growing out of
869
HONORARY
some honor or dignity or honorable office, or else
it imports an obligation or duty growing out of
honor or trust only, as distinguished from legal
accountability.
HONORARY CANONS. Those without emolument. 3 & 4 Vict. c. 113, § 23.
HONORARY FEUDS. Titles of nobility, descendible to the eldest son, in exclusion of all the rest.
2 BL Comm. 56.
HONORARY SERVICES. In feudal law. Special
services to be rendered to the king in person,
characteristic of the tenure by grand serjeanty;
such as to carry his banner, his sword, or the like
or to be his butler, champion, or other officer, at
his coronation. Litt. § 153; 2 Bl. Comm. 73.
HONORARY TRUSTEES. Trustees to preserve
contingent remainders, so called because they are
bound, in honor only, to decide on the most proper
and prudential course. Lewin, Trusts, 408.
HONORLS RESPECTUM. By reason of honor or
privilege. See Challenge.
HONTFONGENETHEF. In Saxon law. A thief
taken with hondhabend; e., having the thing
stolen in his hand. Cowell.
HONY. L. Fr. Shame; evil; disgrace. Hony
soit qui mal y pense, evil be to him who evil
thinks. Preferably written honi. See Garter.
HOO. In old English law. A hill. Co. Litt. 5b.
HOOKLAND. Land plowed and sown every year.
HOOTCH. Intoxicating liquor illicitly distilled for
beverage purposes. State v. Cook, 318 Mo. 1233, 3
S.W.2d 365, 369.
HOPCON. In old English law. A valley. Cowell.
HOPE, n. In old English law. A valley. Co. Litt.
4b.
HOPE, v. As used in a will, this term is a precatory word, rather than mandatory or dispositive,
but it is sufficient, in proper cases, to create a
trust in or in respect to the property spoken of.
Curd v. Field, 103 Ky. 293, 45 S.W. 92.
HOPPO. A Chinese term for a collector; an overseer of commerce.
HORA. Lat. An hour; the hour.
HORA AURORIE. In old English law. The morning bell, as ignitegium or coverfeu (curfew) was
the evening bell.
HORA NON EST MULTUM DE SUBSTANTIA
NEGOTII, LICET IN APPELLO DE EA ALIQUANDO FIAT MENTIO. The hour is not of
much consequence as to the substance of business, although in appeal it is sometimes mentioned. 1 Bulst. 82.
RORIE JURIDICE or JUDICLE. Hours during
which the judges sat in court to attend to judicial
business.
HORCA. In Spanish law. A gallows; the punishment of hanging. White, New Recop. b. 2, tit.
19, c. 4,§1.
HORDA. In old records. A cow in calf.
HORDERA. In old English law. A treasurer.
Du Cange.
HORDERIUM. In old English law. A hoard; a
treasure, or repository. Cowell.
HORDEUM. In old records. Barley. Hordeum
palmale, beer barley, as distinguished from common barley, which was called "hordeum quadragesimale." Blount.
HORIZONTAL PRICE-FIXING CONTRACTS.
Contracts between producers or between wholesalers or between retailers as to sale or resale
prices. Seagram-Distillers Corporation v. Old
Dearborn Distributing Co., 363 Ill. 610, 2 N.E.2d
940, 942.
HORN. In old Scotch practice. A kind of trumpet used in denouncing contumacious persons rebels and outlaws, which was done with three blasts
of the horn by the king's sergeant. This was
called "putting to the horn;" and the party so denounced was said to be "at the horn." Bell. See
Horning.
HORN-BOOK. A primer; a book explaining the
rudiments of any science or branch of knowledge.
The phrase "horn-book law" is a colloquial designation of the rudiments or most familiar principles of law.
HORN TENURE. In old English law. Tenure by
cornage; that is, by the service of winding a horn
when the Scots or other enemies entered the land,
in order to warn the king's subjects. This was a
species of grand serjeanty. Litt. § 156; 2 Bl.
Comm. 74.
HORN WITH HORN, or HORN UNDER HORN.
The promiscuous feeding of bulls and cows or all
horned beasts that are allowed to run together
upon the same common. Spelman.
HORNER. A narcotic addict who inhales or
snuffs heroin rather than one who takes it by
injection. People v. Carner, 255 P.2d 835, 836,
117 C.A.2d 362.
HORNGELD. Sax. In old English law. A tax
within a forest, paid for horned beasts. Cowell;
Blount.
HORNING. In Scotch law. "Letters of horning"
is the name given to a judicial process issuing on
the decree of a court, by which the debtor is summoned to perform his obligation in terms of the
decree, the consequence of his failure to do so
being liability to arrest and imprisonment. It was
anciently the custom to proclaim a debtor who
had failed to obey such process a rebel or outlaw,
which was done by three blasts of the horn by the
king's sergeant in a public place. This was called
"putting to the horn," whence the name.
870
HOSTES
HORNSWOGGLE. To triumph over; overcome;
beat; bedevil. U. S. Fidelity & Guaranty Co. v.
Rochester, Tex.Civ.App., 281 S.W. 306, 314.
HORREUM. Lat. A place for keeping grain; a
granary. A place for keeping fruits, wines, and
goods generally; a store-house. Calvin.; Bract.
fol. 48.
HORS. L. Fr. Out; out of; without.
HORS DE SON FEE. Out of his fee. In old
pleading, this was the name of a plea in an action
for rent or services, by which the defendant alleged that the land in question was out of the compass of the plaintiff's fee. Mather v. Wood, 12 Pa.
Co. Ct. R. 4.
HORS PRIS. Except. Literally translated by the
Scotch "out taken."
HORS WEALH. In old English law. The wealh,
or Briton who had care of the king's horses.
HORS WEARD. In old English law. A service or
corvëe, consisting in watching the horses of the
lord. Anc. Inst. Eng.
HORSE. An animal of the genus equus and species caballus. In a narrow and strict sense, the
term is applied only to the male, and only to
males of four years old or thereabouts, younger
horses being called "colts." But even in this sense
the term includes both stallions and geldings. In
a wider sense, and as generally used in statutes,
the word is taken as nomen generalissimum, and
includes not only horses strictly so called, but
also colts, mares and fillies, and mules and asses.
Pullen v. State, 11 Tex.App. 91; Ex parte Hancock,
61 Okl.Cr. 167, 66 P.2d 954, 955.
HORSE GUARDS. The directing power of the
military forces of the kingdom of Great Britain.
The commander in chief, or general commanding
the forces, is at the head of this department. It is
subordinate to the war office, but the relations
between them are complicated. Wharton.
HORSE POWER. A unit of power capable of
lifting 33,000 pounds a foot a minute. Foltz Grocery & Baking Co. v. Brown, 111 Ohio St. 646; 146
N.E. 97, 99.
Net Horse Power
Actually available horse power as distinguished
from theoretical horse power. Kimberly-Clark Co.
v. Patten Paper Co., 153 Wis. 69, 140 N.W. 1066,
1073.
HORTUS. Lat. In the civil law. A garden. Dig.
32, 91, 5.
HOSPES. Lat. A guest. 8 Coke, 32.
HOSPES GENERAL'S. A great chamberlain.
Base Hospital
One established at a definite military or naval
base of operations.
Field Hospital
One set up near the field of operations. It is
generally equipped to care for emergency cases
and can be moved readily.
Public Hospitals
Hospitals which appeal to the public for voluntary contributions, or those which are supported
by compulsory contributions in the form of a rate.
HOSPITALIZATION. Placing a sick person in a
hospital. Edwards v. West Texas Hospital, Tex.
Civ.App., 89 S.W.2d 801, 815.
HOSPITALLERS. The knights of a religious order, so called because they built a hospital at
Jerusalem, wherein pilgrims were received. All
their lands and goods in England were given to
the sovereign by 32 Hen. VIII. c. 24.
HOSPITATOR. A host or entertainer.
Hospitator communis. An innkeeper. 8 Coke,
32.
Hospitator magnus. The marshal of a camp.
HOSPITIA. Inns. Hospitia communia, common
inns. Reg. Orig. 105. Hospitia curice, inns of
court. Hospitia cancellarice, inns of chancery.
Crabb, Eng. Law, 428, 429; 4 Reeve, Eng. Law,
120.
HOSPITICIDE. One that kills his guest or host.
HOSPITIUM. An inn; a household. Cromwell
v. Stephens, 2 Daly (N.Y.) 17.
HOSPODAR. A Turkish governor in Moldavia or
Wallachia.
HOST. L. Fr. An army. Britt. c. 22. A military expedition; war. Kelham.
HOSTAGE. A person who is given into the possession of the enemy, in a public war, his freedom
(or life) to stand as security for the performance
of some contract or promise made by the belligerent power giving the hostage with the other.
HOSTELAGIUM. In old records. A right to receive lodging and entertainment, anciently reserved by lords in the houses of their tenants.
Cowell.
HOSTELER. See Hostler.
HOSPITAL. An institution for the reception and
care of sick, wounded, infirm, or aged persons;
generally incorporated, and then of the class of
corporations called "eleemosynary" or "charitable." Also the building used for such purpose.
In re Curtiss (Sur.) 7 N.Y.S. 207; Noble v. First
Nat. Bank of Anniston, 241 Ala. 85, 1 So.2d 289,
290.
HOSTES. Lat. Enemies. Hostes humani generis, enemies of the human race; i. e., pirates.
HOSTES SUNT QUI NOBIS VEL QUIBUS NOS
BELLUM DECERNIMUS; CIETERI PROMTORES VEL PRIEDONES SUNT. 7 Coke, 24.
Enemies are those with whom we declare war, or
who declare it against us; all others are traitors
or pirates.
871
HOSTIA
HOSTIA. In old records. The hostbread, or consecrated wafer, in the eucharist. Cowell.
sion, or of equalizing the shares of all the children. 2
Kent, Comm. 421, 422; In re Howlett's Estate, 275 Mich.
596, 267 N.W. 743, 744. This answers to or resembles the
collatio bonorum, or collation of the civil law. Law v.
Smith, 2 R.I. 249; In re Farmers' Loan & Trust Co., 168
N.Y.S. 952, 959, 181 App. Div, 642.
HOSTICIDE. One who kills an enemy.
HOSTILARIA, HOSPITALARIA. A place or
room in religious houses used for the reception of
guests and strangers.
HOTEL. An inn; a public house or tavern; a
house which is held out to well-behaved members
of the traveling public, who are willing to pay reasonable rates for accommodations, as a place
where they will be received and entertained as
guests for compensation, and will be furnished
with food, drink, and lodging, and everything
which they have occasion for while on their way.
City of St. Louis v. Siegrist, 46 Mo. 593; People v.
Gold, Sp.Sess., 6 N.Y.S.2d 264, 267. For "Family
Hotel", see that title.
HOSTILE. Having the character of an enemy;
standing in the relation of an enemy. 1 Kent,
Comm. c. 4.
HOSTILE EMBARGO. One laid upon the vessels
of an actual or prospective enemy.
HOSTILE FIRE. One which becomes uncontrollable or breaks out from where it was intended to
be and becomes hostile element. Swerling v. Connecticut Fire Ins. Co., 55 R.I. 252, 180 A. 343. Reliance Ins. Co. v. Naman, 6 S.W.2d 743, 744, 118
Tex. 21.
HOSTILE POSSESSION. See Possession.
HOSTILE WITNESS. A witness who manifests
so much hostility or prejudice under examination
in chief that the party who has called him, or his
representative, is allowed to cross-examine him,
i. e., to treat him as though he had been called by
the opposite party. Wharton.
HOSTILITY. In the law of nations. A state of
open war. "At the breaking out of hostility." An
act of open war. "When hostilities have commenced." 1 Kent, Comm. 56, 60.
A hostile character. "Hostility may attach only
to the person." 1 Kent, Comm. 56.
HOSTLER. In Norman and old English law, this
was the title of the officer in a monastery charged
with the entertainment of guests. It was also applied (until about the time of Queen Elizabeth) to
an innkeeper, and afterwards, when the keeping of
horses at livery became a distinct occupation, to
the keeper of a livery stable, and then (under the
modern form "ostler") to the groom in charge of
the stables of an inn. Cromwell v. Stephens, 2
Daly (N.Y.) 20.
In the language of railroading, an "ostler" or
"hostler" at a roundhouse is one whose duty it is
to receive locomotives as they come in from the
road, care for them in the roundhouse, and have
them cleaned and ready for departure when wanted. Louisville and N. R. Co. v. McCoy, 270 Ky. 603,
110 S.W.2d 433, 435.
HOTCHPOT. The blending and mixing property
belonging to different persons, in order to divide
it equally. 2 Bl, Comm. 190.
Anciently applied to the mixing and blending of lands
given to one daughter in frank marriage, with those
descending to her and her sisters in fee-simple, for the purpose of dividing the whole equally among them; without
which the daughter who held in frank marriage could
have no share in the lands in fee-simple. Litt. §§ 267, 268;
Co. Litt. 177a; 2 Bl.Comm. 190.
Hotchpot, or the putting in hotchpot, is applied in modern law to the throwing the amount of an advancement
made to a particular child, in real or personal estate, into
the common stock, for the purpose of a more equal divi-
Synonyms
In law, there is no difference whatever between the terms
"hotel," "inn," and "tavern," except that in some states a
statutory definition has been given to the word "hotel,"
especially with reference to the grant of licenses to sell
liquor, as, that it shall contain a certain number of separate rooms for the entertainment of guests, or the like.
But none of the three terms mentioned will include a
boarding house (because that is a place kept for the entertainment of permanent boarders, while a hotel or inn is
for travelers and transient guests), nor a lodging house
(because the keeper thereof does not furnish food for
guests, which is one of the requisites of a hotel or inn), nor
a restaurant or eating-house, which furnishes food only
and not lodging. Martin v. State Ins. Co., 44 N.J.Law, 485,
43 Am.Rep. 397; Debenham v. Short, Tex.Civ.App., 199
S. W. 1147.
HOT-WATER ORDEAL. In old English law.
This was a test, in cases of accusation, by hot
water; the party accused and suspected being appointed by the judge to put his arms up to the
elbows in seething hot water, which, after sundry
prayers and invocations, he did, and was, by the
effect which followed, judged guilty or innocent.
Wharton.
HOUGH. A valley. Co. Litt. 5b. See Haugh.
HOUR. The twenty-fourth part of a natural day;
sixty minutes of time.
Hour of cause. In Scotch practice. The hour
when a court is met. 3 How. State Tr. 603.
Office hours. See Office.
HOUSE. A dwelling; a building designed for the
habitation and residence of men. Satterthwait v.
Gibbs, 288 Pa. 428, 135 A. 862, 863.
"House" means, presumptively, a dwelling house; a
building divided into floors and apartments, with four
walls, a roof, and doors and chimneys; but it does not
necessarily mean precisely this. Surman v. Darley, 14
Mees. & W. 183. It may mean any sort of structure or part
thereof, whether used for human habitation or not. Dennis
v. State, 71 Tex.Cr.R. 162, 158 S.W. 1008; Walker v. Terrell, Tex.Civ.App., 189 S.W. 75, 78.
"House" is not synonymous with "dwelling house."
While the former is used in a broader and more comprehensive sense than the latter, it has a narrower and more
restricted meaning than the word "building." State v.
Garlty, 46 N.H. 61.
A legislative assembly, or (where the bicameral system
obtains) one of the two branches of the legislature; as the
-house of lords," "house of representatives." Also a
quorum of a legislative body. State of Ohio v. Cox, D.C.
Ohio, 257 F. 334, 346.
872
HOUSEHOLD
peerage under the act of union, and twenty-eight
Irish peers elected under similar provisions. The
house of lords, as a judicial body, has ultimate
appellate jurisdiction, and may sit as a court for
the trial of impeachments.
The name "house" is also given to some collections of men other than legislative bodies, to some
public institutions, and (colloquially) to mercantile firms or joint-stock companies.
Ancient House. One which has stood long
enough to acquire an easement of support against
the adjoining land or building. 3 Kent Comm. 437.
House of Refuge. A prison for juvenile delinquents. A house of correction or reformatory.
House of Representatives. The name of the
body forming the more popular and numerous
branch of the congress of the United States; also
of the similar branch in many of the state legislatures.
Bawdy House. A brothel; a house maintained
for purposes of prostitution.
Beer House. See Beer.
Boarding House. See that title.
Duplex House. A double house. Kenwood
Land Co. v. Hancock Inv. Co., 169 Mo.App. 715,
155 S.W. 861, 864.
Dwelling House. See that title.
House of Worship. A building or place set
apart for and devoted to the holding of religious
services or exercises or public worship; a church
or chapel or place similarly used. Old South Soc.
v. Boston, 127 Mass. 379.
Inner House, Outer House. See those titles.
House-bote. A species of estovers, belonging to
a tenant for life or years, consisting in the right to
take from the woods of the lessor or owner such
timber as may be necessary for making repairs
upon the house. Co.Litt. 41b.
Mansion House. See Mansion.
House-burning. See Arson.
House-duty. A tax on inhabited houses imposed
by 14 & 15 Vict. c. 36, in lieu of window-duty, which
was abolished.
House of Commons. One of the constituent
houses of the British parliament, composed of
representatives of the counties, cities, and boroughs. The lower house, so called because the
commons of the realm, that is, the knights, citizens, and burgesses returned to parliament, representing the whole body of the commons, sit there.
House of Correction. A reformatory. A place
for the imprisonment of juvenile offenders, or
those who have committed crimes of lesser magnitude. Ex parte Moon Fook, 72 Cal. 10, 12 P. 804.
House of Delegates. The official title of the
lower branch of the legislative assembly of several of the American states, e. g., Maryland and
Virginia.
House of Ill Fame. A bawdy house; a brothel;
a dwelling allowed by its chief occupant to be
used as a resort of persons desiring unlawful
sexual intercourse. People v. Lee, 307 Mich. 743,
12 N.W.2d 418, 421.
The authorities are conflicting as to whether and in what
circumstances a house used solely by one woman for illicit
intercourse is a house of ill fame. Fisher v. City of Paragould, 127 Ark. 268, 192 S.W. 219, 220.
House of Keys. The name of the lower branch
of the legislative assembly or parliament of the
Isle of Man, consisting of twenty-four representatives chosen by popular election.
House of Lords. The upper chamber of the
British parliament. It comprises the archbishops
and bishops, (called "Lords Spiritual,") the English peers sitting by virtue of hereditary right, six'teen Scotch peers elected to represent the Scotch
Public House. An inn or tavern; a house for the
entertainment of the public, or for the entertainment of all who come lawfully and pay regularly.
Whatley v. State, 68 So. 491, 492, 12 Ala.App. 201.
A place of public resort, particularly for purposes
of drinking or gaming. In a more general sense,
any house made public by the occupation carried
on in it and the implied invitation to the public to
enter, such as inns, taverns, drinking saloons,
gambling houses, and perhaps also shops and
stores. Cole v. State, 28 Tex.App. 536, 13 S.W.
859, 19 Am.St.Rep. 856.
Tippling House. A place where intoxicating liquors are sold in drams or small quantities to be
drunk on the premises, and where men resort for
drinking purposes.
HOUSEAGE. A fee paid for housing goods by a
carrier, or at a wharf, etc.
HOUSEBREAKING. In criminal law. Breaking
and entering a dwelling-house with intent to commit any felony therein. If done by night, it comes
under the definition of "burglary."
Under statute housebreaking may consist in
"breaking out" of a house after access had been
gained without breaking. Lawson v. Commonwealth, 160 Ky. 180, 169 S.W. 587, 588, L.R.A. 1915
D, 972.
HOUSEHOLD, adj. Belonging to the house and
family; domestic. Webster.
HOUSEHOLD, n. A family living together.
Schurler v. Industrial Commission, 86 Utah, 284,
43 P.2d 696, 699, 100 A.L.R. 1085. Those who dwell
under the same roof and compose a family. Webster. A man's family living together constitutes
his household, though he may have gone to another state.
For "Family," see that title.
Synonymous with "family," but broader, in that It
includes servants or attendants; all who are under one
domestic head. Engebretson v. Austvold, 199 Minn. 399,
271 N.W. 809, 810.
873
HOUSEHOLD
HOUSEHOLD FURNITURE. See Furniture.
HOUSEHOLD SERVANTS AND HOUSEHOLD
EMPLOYEES. Those employed in the mansion
house, and do not embrace those who work out
of doors upon the home place, and not regularly
employed to do work within the curtilage. Raines
v. Osborne, 184 N.C. 599, 114 S.E. 849.
HOUSEHOLD STUFF. This phrase, in a will,
includes everything which may be used for the
convenience of the house, as tables, chairs, bedding, and the like. But apparel, books, weapons,
tools for artificers, cattle, victuals, and choses in
action will not pass by those words, unless the
context of the will clearly show a contrary intention. 1 Rop. Leg. 206. See Appeal of Hoopes,
60 Pa. 227, 100 Am.Dec. 562.
HOUSEHOLDER. The occupier of a house.
Brande. More correctly, one who keeps house
with his family; the head or master of a family.
Webster; 18 Johns. 302. Berghean v. Berghean,
113 Ind.App. 412, 48 N.E.2d 1001, 1003. One who
has a household; the head of a household. Gomez v. State, 75 Tex.Cr.R. 239, 170 S.W. 711, 713.
HUEBRAS. In Spanish law. A measure of land
equal to as much as a yoke of oxen can plow in
one day. 2 White, Recop. (38), 49; Strother v.
Lucas, 12 Pet. 443, 9 L.Ed. 1137.
HUI. Under the law of Hawaii. An association
of persons in the ownership of land, members of
which ordinarily hold the property as tenants
in common. De Fries v. Scott, C.C.A.Hawaii, 268
F. 952, 959.
HUISSERIUM. A ship used to transport horses.
Also termed "uffer."
HOUSE LAW. A peculiar type of regulatory code,
now largely obsolete, promulgated by the head
of a royal or noble family, or of a prominent private family, governing intra-family relationships
and acts with respect to policies of marriage, disposition of property, inheritance and the like.
Usually these codes had no legal authority but
were enforced within the family by sufficient
personal and economic sanctions.
HOVEL. A place used by husbandmen to set
their plows, carts, and other farming utensils out
of the rain and sun. A shed; a cottage; a mean
house.
HOWE. In old English law. A hill. Co. Litt. 5b.
HUISSIERS. In French law. Marshals; ushers;
process-servers; sheriff's officers. Ministerial officers attached to the courts, to effect legal service
of process required by law in actions, to issue executions, etc., and to maintain order during the
sitting of the courts.
HULKA. In old records. A hulk or small vessel.
Cowell.
HULKS. A place of punishment for convicts in
England, abandoned with the reform in the punishment of convicts which began in England about
1840.
HULL. In a statute, 33 U.S.C.A. § 319, requiring
ships of a certain size to carry lights, etc., it includes the forecastle deck. The Europe, 190 Fed.
475, 111 C.C.A. 307.
HULLUS. In old records. A hill. 2 Mon. Angl.
292; Cowell.
HOWGH. See Haugh.
HOY. A small coasting vessel, usually slooprigged, used in conveying passengers and goods
from place to place, or as a tender to larger vessels in port. Webster.
HOYMAN. The master or captain of a hoy.
HUCKSTER. A petty dealer and retailer of small
articles of provisions, particularly farm and garden produce; a hawker; peddler. Hughes v.
City of Detroit, 217 Mich. 567, 187 N.W. 530, 531.
RUDE-GELD. In old English law. An acquittance for an assault upon a trespassing servant.
Supposed to be a mistake or misprint in Fleta for
"hinegeld." Fleta, lib. 1, c. 47, § 20. Also the price
HUE AND CRY. In old English law. A loud
outcry with which felons (such as robbers, burglars, and murderers) were anciently pursued, and
which all who heard it were bound to take up, and
join in the pursuit, until the malefactor was taken.
Bract. fols. 115b, 124; 4 Bl. Comm. 293. A written
proclamation issued on the escape of a felon from
prison, requiring all officers and people to assist
in retaking him. 3 How. State Tr. 386.
HUIS. L. Fr. A door. "Al huis del esglise," at
the door of the church. Bendloe, 133.
HOUSEKEEPER. One who is in actual possession of and who occupies a house, as distinguished
from a "boarder," "lodger," or "guest." See Bell
v. Keach, 80 Ky. 45. Head of a family. January
v. Marler, 274 Mo. 543, 203 S.W. 817.
HUCUSQUE. In old pleading. Hitherto. 2 Mod.
24.
of one's skin, or the money paid by a servant to
save himself from a whipping. Du Cange.
HUMAGIUM. A moist place. Mon. Angl.
HUMANITARIAN DOCTRINE. Another name
for the doctrine of the last clear chance. See
Last.
HUNDRED. Under the Saxon organization of
England, each county or shire comprised an indefinite number of hundreds, each hundred containing ten tithings, or groups of ten families of
freeholders or frankpledges. The hundred was
governed by a high constable, and had its own
court; but its most remarkable feature was the
corporate responsibility of the whole for the
crimes or defaults of the individual members. The
introduction of this plan of organization into England is commonly ascribed to Alfred, but the idea,
as well of the collective liability as of the division,
874
HUSBAND
was probably known to the ancient German peoples, as we find the same thing established in the
Frankish kingdom under Clothaire, and in Denmark. See 1 Bl. Comm. 115; 4 Bl. Comm. 411.
HUNDREDWEIGHT. A denomination of weight
containing, according to the English system, 112
pounds; but in this country, generally, it consists
of 100 pounds avoirdupois.
HUNDRED COURT. In English law. A larger
court-baron, being held for all the inhabitants of
a particular hundred, instead of a manor. The
free suitors are the judges, and the steward the
registrar, as in the case of a court-baron. It is
not a court of record, and resembles a court-baron
in all respects except that in point of territory it
is of greater jurisdiction. These courts have long
since fallen into desuetude. 3 Bl. Comm. 34, 35;
3 Steph. Comm. 394, 395.
HUNG JURY. A jury so irreconcilably divided
in opinion that they cannot agree upon any verdict.
HUNGER. The desire to eat. Hunger is no excuse for larceny; 1 Hale, Pl. Cr. 54; 4 Bla. Comm.
31. As to death from hunger, see Death.
HUNTING. The act of pursuing and taking wild
animals; the chase. Commonwealth v. Bailey, 97
S.E. 774, 124 Va. 800. Robinson v. State, 76 S.E.
1061, 11 Ga.App. 847.
HUNDRED GEMOTE. Among the Saxons, a
meeting or court of the freeholders of a hundred,
which assembled, originally, twelve times a year,
and possessed civil and criminal jurisdiction and
ecclesiastical powers. 1 Reeve, Eng. Law, 7.
HURDEREFERST. A domestic; one of a family.
HURDLE. In English criminal law. A kind of
sledge, on which convicted felons were drawn to
the place of execution. See Draw, v.
HUNDRED LAGH. The law of the hundred, or
hundred court; liability to attend the hundred
court. Spelman.
HUNDRED PENNY. In old English law. A tax
collected from the hundred, by the sheriff or lord
of the hundred.
HUNDRED ROLLS. Rolls embodying the result
of investigations made by the commissioners in
1274 as to usurpations of the royal rights. 1
Holdsw. Hist. E. L. 48.
HUNDRED SECTA. The performance of suit
and service at the hundred court.
HUNDRED SETENA. In Saxon law. The dwellers or inhabitants of a hundred. Cowell; Blount.
Spelman suggests the reading of sceatena from
Sax. "sceat," a tax.
HUNDRED—FECTA. The performance of suit
and service at the hundred court. Wharton.
HURRICANE. A storm of great violence or intensity, of which the particular characteristic is
the high velocity of the wind. There is naturally
no exact measure to distinguish between an ordinary storm and a hurricane, but the wind should
reach a velocity of at least 50 or 60 miles an hour
to be called by the latter name, or, as expressed
in some of the cases, it should be sufficient to
"throw down buildings." A hurricane is properly
a circular storm in the nature of a cyclone. Pelican Ins. Co. v. Troy Co-op. Ass'n, 13 S.W. 980, 77
Tex. 225; Queen Ins. Co. v. Hudnut Co., 8 Ind.App.
22, 35 N.E. 397; George A. Hoagland and Co. v.
Insurance Co. of North America, 131 Neb. 105,
267 N.W. 239, 241.
HURST, HYRST, HERST, or HIRST. A wood or
grove of trees. Co. Litt. 4b.
HURT. In such phrases as "to the hurt or annoyance of another," or "hurt, molested, or restrained
in his person or estate," this word is not restricted
to physical injuries, but includes also mental pain,
as well as discomfort or annoyance. Thurston v.
Whitney, 2 Cush., Mass., 110.
HUNDREDARIUS. In old English law. A hundredary or hundredor. A name given to the chief
officer of a hundred, as well as to the freeholders
who composed it. Spel. voc. "Hundredus."
HUNDREDARY. The chief or presiding officer of
a hundred.
HURTARDUS, or HURTUS. A ram or wether.
HUNDREDES EARLpOR, or HUNDREDES
MAN. The presiding officer in the hundred court.
Anc. Inst. Eng.
HUNDREDORS. In English law. The inhabitants or freeholders of a hundred, anciently the
suitors or judges of the hundred court. Persons
impaneled or fit to be impaneled upon juries,
dwelling within the hundred where the cause of
action arose. Cromp. Jur. 217. It was formerly
necessary to have some of these upon every panel
of jurors. 3 Bl. Comm. 359, 360; 4 Steph. Comm.
370. The term "hundredor" was also used to signify the officer who had the jurisdiction of a hundred, and held the hundred court, and sometimes
the bailiff of a hundred. Termes de la Ley; Cow?1.
HURTO. In Spanish law. Theft. White, New
Recop. b. 2, tit. 20.
HUSBAND. A married man; one who has a lawful wife living. The correlative of "wife." People
v. Snyder, 353 Ill. 184, 187 N.E. 158, 160, 88 A.L.R.
1012.
Etymologically, the word signified the "house
bond;" the man who, according to Saxon ideas
and institutions, held around him the family, for
whom he was in law responsible.
HUSBAND AND WIFE. One of the great domestic relationships; being that of a man and
woman lawfully joined in marriage, by which, at
common law, the legal existence of a wife is incorporated with that of her husband.
875
HUSBAND
• HUSBAND LAND. In old Scotch law. A quantity
of land containing commonly six acres. Skene.
also (metaphorically) a human being born of the
union of persons of different races.
HUSBAND OF A SHIP. See, Ship's Husband.
HYD. In old English law. Hide; skin. A measure of land, containing according to some, a hundred acres, which quantity is also assigned to it in
the Dialogus de Scaccario. It seems, however,
that the hide varied in different parts of the kingdom.
HYDAGE. See Hidage.
HYDROMETER. An instrument for measuring
the density of fluids. Being immersed in fluids, as
in water, brine, beer, brandy, etc., it determines
the proportion of their density, or their specific
gravity, and thence their quality. See Rev. St.
U. S. § 2918 (19 U.S.C.A. § 390).
HUSBANDMAN. A farmer; a cultivator or tiller
of the ground. The word "farmer" is colloquially
used as synonymous with "husbandman," but originally meant a tenant who cultivates leased
ground.
HUSBANDRIA. In old English law. Husbandry.
Dyer, (Fr. Ed.) 35b.
HUSBANDRY. Agriculture; cultivation of the
soil for food; farming, in the sense of operating
land to raise provisions. Simons v. Lovell, 7
Heisk. (Tenn.) 516; State ex rel. Boynton v. Wheat
Farming Co., 137 Kan. 697, 22 P.2d 1093.
HUSFASTNE. He who holds house and land.
Bract. L 3, t. 2, c. 10.
HYDROSTATIC TEST. A method of determining
whether or not a deceased infant was born alive,
involving the removal of the lungs and the placing of them in a vessel of water; if the infant
had breathed, the air in the lungs will cause them
to float, though they may also float if decomposition has set in and gas has formed in the body.
Morgan v. State, 256 S.W. 433, 148 Term. 417.
Called, also, "docimasia pulmonum."
HYEMS, HIEMS. Lat. In the civil law. Winter.
Dig. 43, 20, 4, 34. Written, in some of the old
books, "uems." Fleta, lib. 2, c. 73, §§ 16, 18.
HUSGABLUM. In old records. House rent; or
a tax or tribute laid upon a house. Cowell;
Blount.
HYGIENE. A system of principles or rules designed for the promotion of health. Lunn v. City
of Auburn, 110 Me. 241, 85 A. 893, 894.
HUSBREC• In Saxon law. The crime of housebreaking or burglary. Crabb, Eng. Law, 59, 308.
HUSCARLE. In old English law. A house servant or domestic; a man of the household. Spelman. A king's vassal, thane, or baron; an earl's
man or vassal. A term of frequent occurrence in
Domesday Book.
HUSH-MONEY. A colloquial expression to designate a bribe to hinder information; pay to secure
silence.
HUSTINGS. Council; court; tribunal. Apparently so called from being held within a building,
at a time when other courts were held in the open
air. It was a local court. The county court in the
city of London bore this name. There were hustings at York, Winchester, Lincoln, and in other
places similar to the London hustings. Also the
raised place from which candidates for seats in
parliament address the constituency, on the occasion of their nomination. Wharton.
In Virginia, some of the local courts are called "hustings," as in the city of Richmond. Smith v. Corn., 6 Grat.
Va., 696. The municipal courts established (in Virginia) in
any city of over, 5,000 inhabitants were at one time called
hustings courts. Cent. Dict.
HUTESIUM ET CLAMOR. Hue and cry. See Hue
and Cry.
HUTILAN. Taxes. Mon. Angl. 1. 586.
HWATA, HVVATUNG. In old English law. Augury; divination.
HYBERNAGIUM. In old English law. The season for sowing winter grain, between Michaelmas and Christmas. The land on which such
grain was sown. The grain itself; winter grain
or winter corn. Cowell.
HYBRID. A mongrel; an animal formed of the
union of different species, or different genera;
HYPNOTIC OR SOMNIFACIENT DRUGS. Drugs
that produce sleep. State v. Jordan, 171 So.2d 650,
653, 247 La. 367.
HYPNOTISM. A condition, artificially produced,
in which the person hypnotized, apparently asleep,
acts in obedience to will of operator. Louis v.
State, 24 Ala.App. 120, 130 So. 904, 905.
HYPOBOLUM. In the civil law. The name of
the bequest or legacy given by the husband to
his wife, at his death, above her dowry.
HYPOCHONDRIA; HYPOMANIA. See Insanity.
HYPOSTASIS. In medical jurisprudence. (1)
The morbid deposition of a sediment of any kind
in the body. (2) A congestion or flushing of the
blood vessels, as in varicose veins. Post-mortem
hypostasis, a peculiar lividity of the cadaver.
HYPOTHEC. In Scotland, the term "hypothec"
is used to signify the landlord's right which, independently of any stipulation, he has over the
crop and stocking of his tenant. It gives a security to the landlord over the crop of each year for
the rent of that year, and over the cattle and
stocking on the farm for the current year's rent,
which last continues for three months after the
last conventional term for the payment of the
rent. Bell.
HYPOTHECA. "Hypotheca" was a term of the
Roman 'law, and denoted a pledge or mortgage.
As distinguished from the term "pignus," in the
same law, it denoted a mortgage, whether of lands
or of goods, in which the subject in pledge remained in the possession of the mortgagor or debt-
876
HYSTERIA
or; whereas in the pignus the mortgagee or creditor was in the possession. Such an hypotheca
might be either express or implied; express, where
the parties upon the occasion of a loan entered
into express agreement to that effect; or implied,
as, e. g., in the case of the stock and utensils of a
farmer, which were subject to the landlord's right
as a creditor for rent; whence the Scotch law of
hypothec.
The word has suggested the term "hypothecate,"
as used in the mercantile and maritime law of
England. Thus, under the factor's act, goods are
frequently said to be "hypothecated;" and a captain is said to have a right to hypothecate his
vessel for necessary repairs. Brown. See Mackeld. Rom. Law, §§ 334-359.
HYPOTHECARIA ACTIO. Lat. In the civil law.
An hypothecary action; an action for the enforcement of an hypotheca, or right of mortgage; or
to obtain the surrender of the thing mortgaged.
Inst. 4, 6, 7; Mackeld. Rom. Law, § 356. Adopted
in the Civil Code of Louisiana, under the name of
"l'action hypothkarie," (translated, "action of
mortgage.") Civ. Code La. arts. 1433-1443; Code
Prac. La. art. 61.
HYPOTHECARII CREDITORES. Lat. In the
civil law. Hypothecary creditors; those who
loaned money on the security of an hypotheca,
(q. v.) Calvin.
HYPOTHECARY ACTION. The name of an action allowed under the civil law for the enforcement of the claims of a creditor by the contract
of hypotheca. Lovell v. Cragin, 136 U.S. 130, 10
Sup.Ct. 1024, 34 L.Ed. 372.
An hypothecary action is a real action, which the creditor
brings against the property which has been hypothecated
to him by his debtor, in order to have it seized and sold
for the payment of his debt. Code Prac.La. art. 61. In the
hypothecary action proper, there is no pursuit of the person; the thing mortgaged is the debtor, and the action is
directed against it. In this sense, the action is real. Wisdom v. Parker, 31 La. Ann. 52.
HYPOTHECATE. To pledge a thing without delivering the possession of it to the pledgee. "The
master, when abroad, and in the absence of the
owner, may hypothecate the ship, freight, and
cargo, to raise money requisite for the completion
of the voyage." 3 Kent, Comm. 171. Ogden v.
Lathrop, 31 N.Y.Super.Ct. 651.
HYPOTHECATION. The term borrowed from the
civil law. In so far as it is naturalized in English
and American law, it means a contract of mortgage or pledge in which the subject-matter is not
delivered into the possession of the pledgee or
pawnee; or, conversely, a conventional right existing in one person over specific property of another, which consists in the power to cause a sale
of the same, though it be not in his possession, in
order that a specific claim of the creditor may be
satisfied out of the proceeds. Whitney v. Peay, 24
Ark. 27.
The term is frequently used in our textbooks and reports,
particularly upon the law of bottomry and maritime liens;
thus a vessel is said to be hypothecated for the demand of
one who has advanced money for supplies.
In the common law, there are but few, if any, cases of
hypothecation, in the strict sense of the civil law; that is,
a pledge without possession by the pledgee. The nearest
approaches, perhaps, are cases of bottomry bonds and
claims of materialmen, and of seamen for wages; but these
are liens and privileges, rather than hypothecations: Story,
Bailm. § 288.
HYPOTHECATION BOND. A bond given in the
contract of bottomry or respondentia.
HYPOTHEQUE. In French law. Hypothecation;
a mortgage on real property; the right vested in
a creditor by the assignment to him of real estate as security for the payment of his debt, whether or not it be accompanied by possession. See
Civ. Code La. art. 3397.
It corresponds to the mortgage of real property in English law, and is a real charge, following the property into
whosesoever hands it comes. It may be W ale, as in the
case of the charge which the state has over the lands of its
accountants, or which a married woman has over those of
her husband; judicicare, when it is the result of a judgment of a court of justice; and conventionelle, when it is
the result of an agreement of the parties. Brown.
HYPOTHESIS. A supposition, assumption, or
theory; a theory set up by the prosecution, on a
criminal trial, or by the defense, as an explanation of the facts in evidence, and a ground for
inferring guilt or innocence, as the case may be,
or as indicating a probable or possible motive for
the crime.
HYPOTHETICAL QUESTION. A combination of
assumed or proved facts and circumstances, stated in such form as to constitute a coherent and
specific situation or state of facts, upon which
the opinion of an expert is asked, by way of evidence on a trial. Howard v. People, 185 Ill. 552,
57 N.E. 441; State v. Smoak, 213 N.C. 79, 195 S.E.
72, 81.
It should be so framed as to recite all the facts in evidence which are relevant to the formation of an opinion
and then, assuming the facts recited to be true, the witness
should be asked whether he is able to form an opinion
therefrom and if so to state his opinion. McMurrey v.
State, 145 Tex.Cr.R. 439, 168 S.W.2d 858, 860.
HYPOTHETICAL YEARLY TENANCY. The basis, in England, of rating lands and hereditaments
to the poor-rate, and to other rates and taxes that
are expressed to be leviable or assessable in like
manner as the poor-rate.
HYRNES. In old English law. A parish.
HYSTERIA. A paroxysmal disease or disorder of
the nervous system, more common in females than
males, not originating in any anatomical lesion,
due to psychic rather than physical causes, and
attended, in the acute or convulsive form, by extraordinary manifestations of secondary effects of
extreme nervousness.
Hysteria is a state in which ideas control the body and
produce morbid changes in its functions. Mcebius. A
special psychic state, characterized by symptoms which
can also be produced or reproduced by suggestion, and
which can be treated by psychotherapy or persuasion,
hysteric and hypnotic states being practically equivalent to
each other. Babinski. A purely psychic or mental disorder
due to hereditary predisposition. Charcot. A state resulting from a psychic lesion or nervous shock, leading to
repression or aberration of the sexual instinct. Freud.
Hysteria is much more common in women than in men, and
877
HYSTERIA
was formerly thought to be due to some disorder of the
uterus or sexual system; but it is now known that it may
occur in men, in children, and in very aged persons of
either sex.
In the convulsive form of hysteria, commonly called
"hysterics" or "a fit of hysterics," there is nervestorm
characterized by loss or abandonment of self-control in the
expression of the emotions, particularly grief, by paroxysms of tears or laughter or both together, sensations of
constriction as of a ball rising in the throat (globes hystericus), convulsive movements in the chest, pelvis, and
abdomen, sometimes leading to a fall with apparent unconsciousness, followed by a relapse into semiunconsciousness
or catalepsy. In the non-convulsive forms, all kinds of
organic paralyses may be simulated, as well as muscular
contractions and spasms, tremor, loss of sensation (anesthesia) or exaggerated sensation (hypercesthesia), disturbances of respiration, disordered appetite, accelerated pulse,
hemorrhages in the skin (stigmata), pain, swelling, or even
dislocation of the joints, and great amenability to suggestion.
HYSTERO–EPILEPSY. See Epilepsy.
HYSTEROPOTMOL Those who, having been
thought dead, had, after a long absence in foreign countries, returned safely home; or those
who, having been thought dead in battle, had afterwards unexpectedly escaped from their enemies
and returned home. These, among the Romans,
were not permitted to enter their own houses at
the door, but were received at a passage opened
in the roof. Enc. Lond.
HYSTEROTOMY. The Caesarean operation. See
Caesarean Section.
HYTHE, In English law. A port, wharf, or small
haven to embark or land merchandise at. Cowell;
Blount.
878
IDEM
I
I. The initial letter of the word "Instituta," used
by some civilians in citing the Institutes of Justinian. Tayl. Civil Law, 24.
I. C. C. Interstate Commerce Commission; Indian Claims Commission.
I—CTUS. An abbreviation for "jurisconsultus,"
one learned in the law; a jurisconsult.
I. E. An abbreviation for "id est," that is; that
is to say.
I 0 U. A memorandum of debt, consisting of
these letters, ("I owe you,") a sum of money, and
the debtor's signature, is termed an "I 0 U."
Kinney v. Flynn, 2 R.I. 329.
I. R. S. Internal Revenue Service.
IBERNAGIUM. In old English law. The season
for sowing winter corn. Also spelled "hibernaglum" and "hybernagium" (q. v.).
IBI SEMPER DEBET FIERI TRIATIO UBI JURATORES MELIOREM POSSUNT HABERE NOTITIAM. 7 Coke, lb. A trial should always be had
where the jurors can be the best informed.
ID QUOD NOSTRUM EST SINE FACTO NOSTRO
AD ALIUM TRANSFERRI NON POTEST. That
which is ours cannot be transferred to another
without our act. Dig. 50, 17, 11.
ID SOLUM NOSTRUM QUOD DEBITIS DEDUCTIS NOSTRUM EST. That only is ours which
remains to us after deduction of debts. Tray. Lat.
Max. 227.
IDEM. Lat. The same. According to Lord Coke,
"idem" has two significations, sc., idem syllabus
seu verbis, (the same in syllabus or words,) and
idem re et sense, (the same in substance and in
sense.) 10 Coke, 124a.
IBIDEM. Lat. In the same place; in the same
book; on the same page, etc. Abbreviated to
"ibid." or "ib."
ICENI. The ancient name for the people of Suffolk, Norfolk, Cambridgeshire, and Huntingdon.
shire, in England.
In Old Practice. The said, or aforesaid; said,
aforesaid. Distinguished from "prcedictus" in old
entries, though having the same general signification. Townsh. P1.15, 16.
IDEM AGENS ET PATIENS ESSE NON POTEST.
Jenk. Cent. 40. The same person cannot be both
agent and patient;
e., the doer and person to
whom the thing is done.
ICONA. An image, figure, or representation of
a thing. Du Cange.
ICTUS. In old English law. A stroke or blow
from a club or stone; a bruise, contusion, or swelling produced by a blow from a club or stone, as
distinguished from "plaga," (a wound.) Fleta, lib.
1, c. 41, § 3.
ICTUS ORBIS. In medical jurisprudence. A
maim, a bruise, or swelling; any hurt without
cutting the skin. When the skin is cut, the injury is called a "wound." Bract. lib. 2, tr. 2, cc.
5, 24.
ID CERTUM EST QUOD CERTUM REDDI POTEST. That is certain which can be made certain. 2 B1.Comm. 143; 1 B1.Comm. 78; 4 Kent,
Comm. 462; Broom, Max. 624.
ID CERTUM EST QUOD CERTUM REDDI POTEST, SED ID MAGIS CERTUM EST QUOD DE
SEMETIPSO EST CERTUM. That is certain
which can be made certain, but that is more certain which is certain of itself. 9 Coke, 47a.
ID EST. Lat. That is. Commonly abbreviated
"i. e."
ID PERFECTUM EST QUOD EX OMNIBUS SUIS
PARTIBUS CONSTAT. That is perfect which
consists of all its parts. 9 Coke 9.
ID POSSUMUS QUOD DE JURE POSSUMUS.
Lane, 116. We may do only that which by law
we are allowed to do.
ID QUOD EST MAGIS REMOTUM, NON TRAHIT
AD SE QUOD EST MAGIS JUNCTUM, SED E
CONTRARIO IN OMNI CASU. That which is
more remote does not draw to itself that which
is nearer, but the contrary in every case. Co. Litt.
164.
IDEM EST FACERE, ET NON PROHIBERE CUM
POSSIS; ET QUI NON PROHIBIT, CUM PROHIBERE POSSIT, IN CULPA EST, (AUT JUBET.)
3 Inst. 158. To commit, and not to prohibit when
in your power, is the same thing; and he who
does not prohibit when he can prohibit is in fault,
or does the same as ordering it to be done.
IDEM EST NIHIL DICERE, ET INSUFFICIENTER DICERE. It is the same thing to say nothing, and to say a thing insufficiently. To say a
thing in an insufficient manner is the same as not
to say it at all. Applied to the plea of a prisoner.
2 Inst. 178.
IDEM EST NON ESSE, ET NON APPARERE.
It is the same thing not to be as not to appear.
Jenk. Cent. 207. Not to appear is the same thing
as not to be. Broom, Max. 165.
IDEM EST NON PROBARI ET NON ESSE; NON
DEFICIT JUS, SED PROBATIO. What is not
proved and what does not exist are the same; it
is not a defect of the law, but of proof.
IDEM EST SCIRE AUT SCIRE DEBERE AUT
POTUISSE. To be bound to know or to be able to
know is the same as to know.
IDEM PER IDEM. The same for the same. An
illustration of a kind that really adds no additional
element to the consideration of the question.
879
IDEM
equivalents. Electric Railroad Signal Co. v. Hall Railroad
Signal Co., 114 U.S. 87, 5 Sup.Ct. 1069, 29 L. Ed. 96; Latta
v. Shawk, 14 Fed.Cas. 1188. "Identity of design" means
sameness of appearance, or, in other words, sameness of
effect upon the eye,—not the eye of an expert, but of an
ordinary intelligent observer. Smith v. Whitman Saddle
Co., 148 U.S. 674, 13 Sup.Ct. 768, 37 L.Ed. 606.
IDEM SEMPER ANTECEDENTI PROXIMO REFERTUR. Co. Litt. 685. "The same" is always
referred to its next antecedent.
IDEM SONANS. Sounding the same or alike;
having the same sound. A term applied to names
which are substantially the same, though slightly
varied in the spelling, as "Lawrence" and "Lawn
ance," and the like. 1 Cromp. & M. 806; 3 Chit.
Gen. Pr. 171; Golson v. State, 15 Ala.App. 420, 73
So. 753.
Two names are said to be "idem sonantes" if the attentive ear finds difficulty in distinguishing them when pronounced, or if common and long-continued usage has by
corruption or abbreviation made them identical in pronunciation. State v. Griffle, 118 Mo. 188, 23 S.W. 878. The
rule of "idem sonans" is that absolute accuracy in spelling
names is not required in a legal document or proceedings
either civil or criminal; that if the name, as spelled in the
document, though different from the correct spelling
thereof, conveys to the ear, when pronounced according to
the commonly accepted methods, a sound practically identical with the correct name as commonly pronounced, the
name thus given is a sufficient identification of the individual referred to, and no advantage can be taken of the clerical error. State v. Hattaway, 180 La. 12, 156 So. 159. But
the doctrine of "idem sonans" has been much enlarged by
modern decisions, to conform to the growing rule that a
variance, to be material, must be such as has misled the
opposite party to his prejudice.
IDENTICAL. Exactly the same for all practical
purposes. Cam v. Moore, 74 Fla. 77, 76 So. 337,
340.
IDEO. Lat. Therefore. Calvin.
IDEO CONSIDERATUM EST. Lat. Therefore it
is considered. These were the words used at the
beginning of the entry of judgment in an action,
when the forms were in Latin. They are also used
as a name for that portion of the record.
IDEOT. An old form for idiot (q. v.).
IDES. A division of time among the Romans.
In March, May, July, and October, the Ides were
on the 15th of the month; in the remaining
months, on the 13th. This method of reckoning
is still retained in the chancery of Rome, and in
the calendar of the breviary. Wharton.
Under the word "Ides" in Bouvier's Law Diet., Rawle's
3d Rev., p. 1486, will be found a complete table of the
calends, nones, and ides.
IDIOCHIRA. Graeco-Lat. In the civil law. An
instrument privately executed, as distinguished
from such as were executed before a public officer.
Cod. 8, 18, 11; Calvin.
IDIOCY, IDIOPATHIC INSANITY. See Insanity.
IDIOPATHIC DISEASE. A morbid state or condition not preceded or occasioned by any other
disease. Christ v. Pacific Mutual Life Ins. Co.,
231 Ill.App. 439.
IDENTIFICATION. Proof of identity; the proving that a person, subject, or article before the
court is the very same that he or it is alleged,
charged, or reputed to be; as where a witness
recognizes the prisoner at the bar as the same
person whom he saw committing the crime; or
where handwriting, stolen goods, counterfeit coin,
etc., are recognized as the same which once passed
under the observation of the person identifying
them. Hall v. Cotton, 167 Ky. 464, 180 S.W. 779,
781, L.R.A.1916C, 1124.
IDIOT. A person who has been without understanding from his nativity, and whom the law,
therefore, presumes never likely to attain any.
Shelf. Lun. 2. See Insanity. State v. Haner, 186
Iowa, 1259, 173 N.W. 225; Jones v. Commonwealth,
154 Ky. 752, 159 S.W. 568, 569.
IDIOTA. In the Civil Law. An unlearned, illiterate, or simple person. Calvin. A private man;
one not in office.
IDENTITAS VERA COLLIGITUR EX MULTITUDINE SIGNORUM. True identity is collected
from a multitude of signs. Bac. Max.
In Common Law. An idiot or fool,
IDENTITATE NOMINIS. In English law. An ancient writ (now obsolete) which lay for one taken
and arrested in any personal action, and commit.
ted to prison, by mistake for another man of the
same name. Fitzh. Nat. Brev. 267.
IDENTITY. In the Law of Evidence. Sameness;
the fact that a subject, person, or thing before
a court is the same as it is represented, claimed,
or charged to be. Burrill, Circ. Ev. 382, 453, 631,
644.
In Patent Law. Such sameness between two
designs, inventions, combinations, etc., as will constitute the one an infringement of the patent
granted for the other.
To constitute "identity of invention," and therefore
infringement, not only must the result obtained be the
same, but, in case the means used for its attainment is a
combination of known elements, the elements combined in
both cases must be the same, and combined in the same
way, so that each element shall perform the same function:
provided that the differences alleged are not merely colorable according to the rule forbidding the use of known
IDIOTA INQUIRENDO, WRIT DE. This is the
name of an old writ which directs the sheriff to
inquire whether a man be an idiot or not. The
inquisition is to be made by a jury of twelve men.
Fitzh. Nat. Brev. 232. And, if the man were found
an idiot, the profits of his lands and the custody
of his person might be granted by the king to any
subject who had interest enough to obtain them.
1 Bl.Comm. 303.
IDONEUM SE FACERE; IDONEARE SE. To
purge one's self by oath of a crime of which one
is accused.
IDONEUS. Lat. In the civil and common law.
Sufficient; competent; fit or proper; responsible;
unimpeachable. Idoneus homo, a responsible or
solvent person; a good and lawful man. Sufficient; adequate; satisfactory. Idonea cautio, sufficient security.
IDONIETAS. In old English law. Ability or fitness (of a parson). Artic. Cleri, c. 13.
880
IGNORANTIA
structive knowledge. Luck v. Buffalo Lakes, Tex.
Civ.App., 144 S.W.2d 672, 676.
Essential ignorance is ignorance in relation to
some essential circumstance so intimately connected with the matter in question, and which so
influences the parties, that it induces them to act
in the business. Poth. Vente, nn. 3, 4; 2 Kent,
Comm. 367.
Nonessential or accidental ignorance is that
which has not of itself any necessary connection
with the business in question, and which is not the
true consideration for entering into the contract.
IF. In deeds and wills, this word, as a rule, implies a condition precedent, unless it be controlled
by other words. 2 Crabb, Real Prop. p. 809, §
2152; Sutton v. West, 77 N.C. 431. Hughes v. John
Hancock Mut. Life Ins. Co., 297 N.Y.S. 116, 122, 163
Misc. 31.
IFUNGIA. In old English law. The finest white
bread, formerly called "cocked bread." Blount.
IGLISE. L. Fr. A church. Kelham. Another
form of "eglise."
IGNIS JUDICIUM. Lat. The old judicial trial by
fire. Blount.
Involuntary ignorance is that which does not
proceed from choice, and which cannot be overcome by the use of any means of knowledge
known to a person and within his power; as the
ignorance of a law which has not yet been promulgated.
IGNITEGIUM. In old English law. The curfew,
or evening bell. Cowell. See Curfew.
IGNOMINY. Public disgrace; infamy; reproach;
dishonor. Ignominy is the opposite of esteem.
Wolff, § 145. See Brown v. Kingsley, 38 Iowa
220.
Voluntary ignorance exists when a party might,
by taking reasonable pains, have acquired the
necessary knowledge. For example, every man
might acquire a knowledge of the laws which
have been promulgated. Doct. & Stud. 1, 46;
Plowd. 343.
IGNORAMUS. Lat. "We are ignorant;" "We
ignore it." Formerly the grand jury used to write
this word on bills of indictment when, after having heard the evidence, they thought the accusation against the prisoner was groundless, intimating that, though the facts might possibly be true,
the truth did not appear to them; but now they
usually write in English the words "Not a true
bill," or "Not found," if that is their verdict; but
they are still said to ignore the bill. Brown.
IGNORANTIA. Lat. Ignorance; want of knowledge. Distinguished from mistake, (error,) or
wrong conception. Mackeld. Rom. Law, § 178;
Dig. 22, 6. Divided by Lord Coke into ignorantia
facti (ignorance of fact) and ignorantia juris
(ignorance of law). And the former, he adds, is
twofold—lectionis et linquce (ignorance of reading
and ignorance of language). 2 Coke, 3b.
IGNORANCE. The want or absence of knowledge.
Ignorance of law is want of knowledge or acquaintance
with the laws of the land in so far as they apply to the act,
relation, duty, or matter under consideration. Ignorance
of fact is want of knowledge of some fact or facts constituting or relating to the subject-matter in hand. Marshall v.
Coleman, 187 Ill. 556, 58 N.E. 628.
Ignorance is not a state of the mind in the sense in
which sanity and insanity are. When the mind is ignorant
of a fact, its condition still remains sound; the power of
thinking, of judging, of willing, is just as complete before
communication of the fact as after ; the essence or texture,
so to speak, of the mind, is not, as in the case of insanity,
affected or impaired. Ignorance of a particular fact consists in this : that the mind, although sound and capable of
healthy action, has never acted upon the fact in question,
because the subject has never been brought to the notice
of the perceptive faculties. Meeker v. Boylan, 28 N.J.Law,
274.
Synonyms
"Ignorance" and "error" or "mistake" are not
convertible terms. The former is a lack of information or absence of knowledge; the latter, a
misapprehension or confusion of information, or
a mistaken supposition of the possession of knowledge. Error as to a fact may imply ignorance
of the truth; but ignorance does not necessarily
i mply error. Cuibreath v. Culbreath, 7 Ga. 70, 50
Am.Dec. 375.
General
Culpable ignorance is that which results from
a failure to exercise ordinary care to acquire
knowledge, and knowledge which could be acquired by the exercise of ordinary care is by law
i mputed to the person and he is held to have conBlack's Law Dictionary Revised 4th Ed.-56
IGNORANTIA EORUM QUIE QUIS SCIRE TENETUR NON EXCUSAT. Ignorance of those things
which one is bound to know excuses not. Hale, P.
C. 42; Broom, Max. 267.
IGNORANTIA FACTI EXCUSAT. Ignorance of
fact excuses or is a ground of relief. 2 Coke, 3b.
Acts done and contracts made under mistake or
ignorance of a material fact are voidable and relievable in law and equity. 2 Kent, Comm. 491,
and notes.
IGNORANTIA FACTI EXCUSAT, IGNORANTIA
JURIS NON EXCUSAT. Ignorance of the fact
excuses; ignorance of the law excuses not. Every
man must be taken to be cognizant of the law;
otherwise there is no saying to what extent the
excuse of ignorance may not be carried. 1 Coke,
177; Broom, Max. 253.
IGNORANTIA JURIS QUOD QUISQUE TENETUR SCIRE, NEMINE1YI EXCUSAT. Ignorance
of the [or a] law, which every one is bound to
know, excuses no man. A mistake in point of law
is, in criminal cases, no sort of defense. 4 Bl.
Comm. 27; 4 Steph.Comm. 81; Broom, Max. 253;
7 Car. & P. 456. And, in civil cases, ignorance
of the law, with a full knowledge of the facts,
furnishes no ground, either in law or equity, to
rescind agreements, or reclaim money paid, or
set aside solemn acts of the parties. 2 Kent,
Comm. 491, and note.
881
IGNORANTIA
IGNORANTIA JURIS SUI NON PRIEJUDICAT
JURI. Ignorance of one's right does not prejudice the right. Lofft, 552.
such disorderly places are called "houses of ill
fame," and a person who frequents them is a person of ill fame. See Boles v. State, 46 Ala. 206.
IGNORANTIA LEGIS NEMINEM EXCUSAT.
Ignorance of law excuses no one. 4 Bouv. Inst. no.
3828; 1 Story, Eq. Jur. § 111; 7 Watts, 374.
ILLATA ET INVECTA. Lat. Things brought into the house for use by the tenant were so called,
and were liable to the jus hypothecce of Roman
law, just as they are to the landlord's right of
distress at common law.
IGNORANTIA PRIESUMITUR UBI SCIENTIA
NON PROBATUR. Ignorance is presumed where
knowledge is not proved. Bouvier.
IGNORARE LEGIS EST LATA CULPA. To be
ignorant of the law is gross neglect. Bouvier.
IGNORATIO ELENCHI. Lat. A term of logic,
sometimes applied to pleadings and to arguments
on appeal, which signifies a mistake of the question, that is, the mistake of one who, failing to
discern the real question which he is to meet and
answer, addresses his allegations or arguments to
a collateral matter or something beside the point.
Case upon the Statute for Distribution, Wythe
Va. 309.
IGNORATIS TERMINIS ARTIS, IGNORATUR ET
ARS. Where the' terms of an art are unknown,
the art itself is unknown also. Co. Litt. 2a.
IGNORE. To be ignorant of, or unacquainted
with. To disregard willfully; to refuse to recognize; to decline to take notice of. Cleburne
County v. Morton, 69 Ark. 48, 60 S.W. 307.
To reject as groundless, false or unsupported by
evidence; as when a grand jury ignores a bill of
indictment.
IGNOSCITUR EI QUI SANGUINEM SUUM
QUALITER REDEMPTUM VOLUIT. The law
holds him excused from obligation who chose to
redeem his blood (or life) upon any terms. Whatever a man may do under the fear of losing his
life or limbs will not be held binding upon him in
law. 1 Bl.Comm. 131.
IKBAL. Acceptance (of a bond, etc.). Wilson's
Gloss. Ind.
IKBAL DAWA. Confession of judgment. Wilson's Gloss. Ind.
IKENILD STREET. One of the four great Roman
roads in Britain; supposed to be so called from
the Iceni.
IKRAH. Compulsion; especially constraint exercised by one person over another to do an illegal
act, or to act contrary to his inclination. Wilson's
Gloss. Ind.
IKRAR. Agreement, assent, or ratification. Wilson's Gloss. Ind.
ILLEGAL. Not authorized by law; illicit; unlawful; contrary to law; Protest of Downing, 164
Okl. 181, 23 P.2d 173.
Sometimes this term means merely that which lacks
authority of or support from law; but more frequently it
i mports a violation. Etymologically, the word seems to
convey the negative meaning only. But in ordinary use it
has a severer, stronger signification; the idea of censure or
condemnation for breaking law is usually presented. But
the law implied in illegal is not necessarily an express statute. Things are called "illegal" for a violation of commonlaw principles. And the term does not imply that the act
spoken of is immoral or wicked; it implies only a breach
of the law. Tiedt v. Carstensen, 61 Iowa, 334, 16 N.W. 214.
ILLEGAL CONDITIONS. All those that are impossible, or contrary to law, immoral, or repugnant to the nature of the transaction.
ILLEGAL CONTRACT. An agreement with unlawful object and not merely lacking in valid subject-matter, but made for positively invalid purpose. American-LaFrance & Foamite Industries
v. Arlington County, 169 Va. 1, 192 S.E. 758, 761.
ILLEGAL INTEREST. Usury; interest at a higher rate than the law allows. Parsons v. Babcock,
40 Neb. 119, 58 N.W. 726.
ILLEGAL TRADE. Such traffic or commerce as
is carried on in violation of the municipal law, or
contrary to the law of nations. See Illicit.
ILLEGALITY. That which is contrary to the
principles of law, as contradistinguished from
mere rules of procedure. It denotes a complete
defect in the proceedings. Ex parte Davis, 118 Or.
693, 247 P. 809, 811.
ILLEGITIMACY. The condition before the law,
or the social status, of a bastard; the state or
condition of one whose parents were not intermarried at the time of his birth.
ILLEGITIMATE. That which is contrary to raw;
it is usually applied to bastards, or children born
out of lawful wedlock.
The Louisiana Code divided illegitimate children into two
classes : (1) Those born from two persons who, at the
moment when such children were conceived, could have
lawfully intermarried; and (2) those who are born from
persons to whose marriage there existed at the time some
legal impediment. Both classes, however, could be
acknowledged and take by devise. Compton y. Prescott,
12 Rob., La., 56.
ILLEVIABLE. Not leviable; that cannot or
ought not to be levied. Cowell.
IKRAR NAMA. A deed of assent and acknowledgment. Wilson's Gloss. Ind.
ILLICENCIATUS. In old English law. Without
license. Fleta, lib. 3, c. 5, § 12.
ILL. In old pleading. Bad; defective in law;
null; naught; the opposite of good or valid.
ILL FAME. Evil repute; notorious bad character.
Houses of prostitution, gaming houses, and other
ILLICIT. Not permitted or allowed; prohibited;
unlawful; as an illicit trade; illicit intercourse.
State v. Miller, 60 Vt. 90, 12 A. 526.
882
IMBROCUS
ILLICIT CONNECTION. Unlawful sexual intercourse. State v. King, 9 S.D. 628, 70 N.W. 1046.
ILLICIT COHABITATION. The living together
as man and wife of two persons who are not lawfully married, with the implication that they habitually practice fornication. Thomas v. United
States, D.C.Mass., 14 F.2d 228, 229.
ILLICIT DISTILLERY. One carried on without
a compliance with the provisions of the laws of
the United States relating to the taxation of spirituous liquor. U. S. v. Johnson, C.C.Ga., 26 F.
684.
ILLICIT TRADE. Policies of marine insurance
usually contain a covenant of warranty against "illicit trade," meaning thereby trade which is forbidden, or declared unlawful, by the laws of the
country where the cargo is to be delivered. I Pars.
Mar. Ins. 614.
"It is not the same with 'contraband trade,' although the
words are sometimes used as synonymous. Illicit or prohibited trade is one which cannot be carried on without
a distinct violation of some positive law of the country
where the transaction is to take place."
ILLICITE. Lat. Unlawfully. This word has a
technical meaning, and is requisite in an indictment where the act charged is unlawful; as in
the case of a riot. 2 Hawk. P. C. c. 25, § 96.
ILLICITUM COLLEGIUM. Lat. An illegal corporation.
ILLITERATE. Unlettered; ignorant; unlearned.
Generally used of one who cannot read and write.
In re Succession of Carroll, 28 La.Ann. 388.
ILLNESS. In insurance law. A disease or ailment of such a character as to affect the general
soundness and healthfulness of the system seriously, and not a mere temporary indisposition
which does not tend to undermine or weaken the
constitution of the insured. Prudential Ins. Co. of
America v. Sellers, 54 Ind.App. 326, 102 N.E. 894,
897. Zogg v. Bankers' Life Co. of Des Moines,
Iowa, C.C.A.W.Va., 62 F.2d 575, 578.
ILLOCABLE. Incapable of being placed out or
hired.
ILLUD. Lat. That.
ILLUD, QUOD ALIAS LICITUM NON EST,
NECESSITAS FACIT LICITUM; ET NECESSITAS INDUCIT PRIVILEGIUM QUOAD JURA
PRIVATA. Bac. Max. That which is otherwise
not permitted, necessity permits; and necessity
makes a privilege as to private rights.
with the reality, is perverted, distorted, or wholly mistaken, the error being attributable to the
imagination of the observer, not to any defect in
the organs of sense. See Hallucination, and see
"Delusion," under Insanity.
ILLUSORY. Deceiving by false appearances;
nominal, as distinguished from substantial; fallacious; illusive. Bolles v. Toledo Trust Co., 144
Ohio St. 195, 58 N.E.2d 381, 390.
ILLUSORY APPOINTMENT. Formerly the appointment of a merely nominal share of the property to one of the objects of a power, in order to
escape the rule that an exclusive appointment
could not be made unless it was authorized by the
instrument creating the power, was considered illusory and void in equity. But this rule has been
abolished in England. (1 Wm. IV. c. 46; 37 & 38
Vict. c. 37.) Sweet. Brown v. Fidelity Union
Trust Co., 126 N.J.Eq. 406, 9 A.2d 322.
ILLUSORY APPOINTMENT ACT. The statute
1 Wm. IV. c. 46. This statute enacts that no appointment made after its passing, (July 16, 1830,)
in exercise of a power to appoint property, real
or personal, among several objects, shall be invalid, or impeached in equity, on the ground that
an unsubstantial, illusory, or nominal share only
was thereby appointed, or left unappointed, to devolve upon any one or more of the objects of such
power; but that the appointment shall be valid
in equity, as at law. See, too, 37 & 38 Vict. c. 37.
Wharton.
ILLUSTRIOUS. The prefix to the title of a prince
of the blood in England.
IMAGINE. In English law. In cases of treason
the law makes it a crime to imagine the death
of the king. But, in order to complete the crime,
this act of the mind must be demonstrated by
some overt act. The terms "imagining" and "compassing" are in this connection synonymous. 4
Bl. Comm. 78.
IMAN, IMAM, or IMAUM. A Mohammedan
prince having supreme spiritual as well as temporal power; a regular priest of the mosque.
IMBARGO. An old form of "embargo,"
St. 18 Car. II. c. 5.
(q.
v.)
IMBASING OF MONEY. The act of mixing the
specie with an alloy below the standard of sterling,
1 Hale, P. C. 102.
IMBECILITY. See Insanity.
ILLUD, QUOD ALTERI UNITUR, EXTINGUITUR, NEQUE AMPLIUS PER SE VACARE LICET. Godol. Ecc. Law, 169. That which is united
to another is extinguished, nor can it be any more
independent.
IMBEZZLE. An occasional or obsolete form of
"embezzle" (q. v.).
ILLUSION. In medical jurisprudence. An image
or impression in the mind, excited by some external object addressing itself to one or more of
the senses, but which, instead of corresponding
IMBRACERY. See Embracery.
883
IMBLADARE. In old English law. To plant or
sow grain. Bract. fol. 176b.
IMBROCUS. A brook, gutter, or water-passage.
Cowell.
IMITATION
IMITATION. The making of one thing in the
similitude or likeness of another; as, counterfeit
coin is said to be made "in imitation" of the genuine. Wagner v. Daly, 67 Hun. 477, 22 N.Y.S. 493.
An imitation of a trade-mark is that which so far resembles the genuine trade-mark as to be likely to induce the
belief that it is genuine, whether by the use of words or
letters similar in appearance or in sound, or by any sign,
device, or other means.
The test of "colorable imitation" is, not whether a difference may be recognized between the names of two competing articles when placed side by side, but whether the
difference will be recognized by the purchaser with no
opportunity for comparison. The Best Foods v. Hemphill
Packing Co., D.C.Del., 5 F.2d 355, 357.
IMMATERIAL. Not material, essential, or necessary; not important or pertinent; not decisive;
of no substantial consequence; without weight;
of no significance. State v. Cordaro, 211 Iowa 224,
233 N.W. 51, 53.
IMMATERIAL AVERMENT. An averment alleging with needless particularity or unnecessary circumstances what is material and necessary, and
which might properly have been stated more generally, and without such circumstances and particulars; or, in other words, a statement of unnecessary particulars in connection with and as
descriptive of what is material. Dunlap v. Kelly,
105 Mo.App. 1, 78 S.W. 664; Bulova v. E. L. Barnett, Inc., 111 Misc. 150, 181 N.Y.S. 247, 250.
IMMATERIAL FACTS. Those which are not essential to the right of action or defense.
IMMATERIAL ISSUE. In pleading. An issue
taken on an immaterial point; that is, a point not
proper to decide the action. Steph. Pl. 99, 130;
2 Tidd, Pr. 921.
IMMATERIAL VARIANCE. Discrepancy between the pleading and proof of a character so
slight that the adverse party cannot say that he
was misled thereby. E. B. Ryan Co. v. Russell,
52 Mont. 596, 161 P. 307, 308.
IMMEDIATE. Present; at once; without delay;
not deferred by any interval of time.. In this
sense, the word, without any very precise signification, denotes that action is or must be taken
either instantly or without any considerable loss
of time. A reasonable time in view of particular
facts and circumstances of case under consideration. Mullins v. Masonic Protective Ass'n, 181 Mo.
App. 394, 168 S.W. 843, 844. George v. Aetna Casualty and Surety Co., 121 Neb. 647, 238 N.W. 36,
38. Next in line or relation; directly connected;
not secondary or remote. Bunner v. Patti, 343
Mo. 274, 121 S.W.2d 153, 155. Not separated in
respect to place; not separated by the intervention of any intermediate object, cause, relation, or
right. Thus we speak of an action as prosecuted
for the "immediate benefit" of A., of a devise as
made to the "immediate issue" of B., etc.
IMMEDIATE CAUSE. The last of a series or
chain of causes tending to a given result, and
which, of itself, and without the intervention of
any further cause, .directly produces the result or
event. Deisenrieter v. Kraus-Merkel Malting Co.,
72 N.W. 735, 97 Wis. 279; Longabaugh v. Railroad Co., 9 Nev. 271. See, also, Proximate.
A cause may be immediate in this sense, and yet not
"proximate ;" and conversely, the proximate cause (that
which directly and efficiently brings about the result) may
not be immediate. The familiar illustration is that of a
drunken man falling into the water and drowning. His
intoxication is the proximate cause of his death, if it can
be said that he would not have fallen into the water when
sober; but the immediate cause of death is suffocation by
drowning.
IMMEDIATE CONTROL (of motor vehicle upon
approaching or traversing railroad crossing).
Such constant control as would enable driver to
instantly govern vehicle's movements, including
the power to stop within a distance in which such
a vehicle, in good mechanical condition, driven by
a reasonably skillful driver, and traveling at a
'lawful rate of speed, could be stopped. Central of
Georgia Ry. Co. v. Burton, 125 S.E. 868, 33 Ga.
App. 199.
IMMEDIATE DESCENT. See Descent.
IMMEDIATE NOTICE. As required by policy as
for proof of loss means within a reasonable time.
Lydon v. New York Life Ins. Co., C.C.A.Mo., 89
F.2d 78, 82.
IMMEDIATELY. Without interval of time, without delay, straightway, or without any delay or
lapse of time. Drumbar v. Jeddo-Highland Coal
Co., 155 Pa.Super. 57, 37 A.2d 25, 27.
The words, "immediately" and "forthwith" have the
same meaning. They are stronger than the expression
"within a reasonable time" and imply prompt, vigorous action without any delay. Alsam Holding Co. v. Consolidated Taxpayers' Mut. Ins. Co., 4 N.Y.S.2d 498, 505, 167 Mac.
732.
IMMEMORIAL. Beyond human memory; time
out of mind.
IMMEMORIAL POSSESSION. In Louisiana.
Possession of which no man living has seen the
beginning, and the existence of which he has
learned from his elders. Civ.Code La. art. 766.
IMMEMORIAL USAGE. A practice which has
existed time out of mind; custom; prescription.
Miller v. Garlock, 8 Barb. (N.Y.) 154.
IMMEUBLES. Fr. These are, in French law, the
immovables of English law. Things are immeubles from any one of three causes: (1) From
their own nature, e. g., lands and houses; (2)
from their destination, e. g., animals and instruments of agriculture when supplied by the landlord; or (3) by the object to which they are annexed, e. g., easements. Brown.
IMMIGRATION. The coming into a country of
foreigners for purposes of permanent residence.
The correlative term "emigration" denotes the act
of such persons in leaving their former country.
IMMINENT. Near at hand; mediate rather than
immediate; close rather than touching; impending; on the point of happening; threatening;
menacing; perilous. Furlow v. State, 72 Fla. 464,
73 So. 362; Jaroniec v. C. 0. Hasselbarth, Inc.,
228 N.Y.S. 302, 304, 223 App.Div. 182.
884
IMPALARE
IMMORALITY. That which is contra bonos mores. See Immoral.
IMMINENT DANGER. In relation to homicide
in self-defense, this term means immediate danger, such as must be instantly met, such as cannot
be guarded against by calling for the assistance of
others or the protection of the law. State v.
Smith, 43 Or. 109, 71 P. 973. Or, as otherwise defined, such an appearance of threatened and impending injury as would put a reasonable and
prudent man to his instant defense. State v. Fontenot, 50 La.Ann. 537, 23 So. 634, 69 Am.St.Rep.
455.
IMMOVABLES. In the civil law. Property which,
from its nature, destination, or the object to which
it is applied, cannot move itself, or be removed.
Breaux v. Ganucheau, 3 La.App. 481, 482; Scott
v. Brennan, 3 La.App. 452, 453.
Immovable things are, in general, such as cannot either
move themselves or be removed from one place to another.
But this definition, strictly speaking, is applicable only. to
such things as are immovable by their own nature, and not
to such as are so only by the disposition of the law.
IMMINENTLY DANGEROUS ARTICLE. One
that is reasonably certain to place life or limb
in peril. Employers' Liability Assur. Corporation
v. Columbus McKinnon Chain Co., D.C.N.Y., 13
F.2d 128.
IMMUNITY. Exemption, as from serving in an
office, or performing duties which the law generally requires other citizens to perform. Ex parte
Levy, 43 Ark. 54, 51 Am.Rep. 550. Freedom from
duty or penalty. Leatherwood v. Hill, 10 Ariz.
243, 89 P. 521, 523. The term aptly describes an
exemption from taxation. Buchanan v. Knoxville
& 0. R. Co., C.C.A.Tenn., 71 F. 324, 334, 18 C.C.A.
122. A particular privilege. Webster, Dict.; Sacramento Orphanage, etc., Home v. Chambers, 25
Cal.App. 536, 144 P. 317, 319.
IMMISCERE. Lat. In the civil law. To mix or
mingle with; to meddle with; to join with. Calvin.
IMMITTERE. Lat. In the Civil Law. To put or
let into, as a beam into a wall. Calvin.; Dig. 50,
17, 242, 1.
In old English law, to put cattle on a common.
Fleta, lib. 4, c. 20, § 7.
IMPAIR. To weaken, to make worse, to lessen in
power, diminish, or relax, or otherwise affect in an
injurious manner. Davey v. IEtna L. Ins. Co.,
C.C.N.J., 20 F. 482; State ex rel. Woman's Ben.
Ass'n v. Port of Palm Beach Dist., 121 Fla. 746,
164 So. 851, 856.
IMMOBILIA SITUM SEQUUNTUR. Immovable
things follow their site or position; are governed
by the law of the place where they are fixed. 2
Kent, Comm. 67. Cf. Mobilia Sequuntur Personam.
IMPAIRING THE OBLIGATION OF CONTRACTS. A law which impairs the obligation of
a contract is one which renders the contract in itself less valuable or less enforceable, whether by
changing its terms and stipulations, its legal qualities and conditions, or by regulating the remedy
for its enforcement. City of Indianapolis v. Robison, 186 Ind. 660, 117 N.E. 861.
IMMOBILIS. Lat. Immovable. Immobilia or res
immobiles, immovable things, such as lands and
buildings. Mackeld. Rom. Law, § 160.
IMMODERATE. Exceeding just, usual, or suitable bounds; not within reasonable limits. United States v. Oglesby Grocery Co., D.C.Ga., 264 F.
691, 695; People v. McMurchy, 249 Mich. 147, 228
N.W. 723, 726.
IMMORAL. Contrary to good morals; inconsistent with the rules and principles of morality;
inimical to public welfare according to the standards of a given community, as expressed in law or
otherwise. Exchange Nat. Bank of Fitzgerald v.
Henderson, 139 Ga. 260, 77 S.E. 36, 37, 51 L.R.A.
( N.S.) 549. Morally evil; impure; unprincipled;
vicious; or dissolute. U. S. v. One Book, Entitled
"Contraception," by Marie C. Stopes, D.C.N.Y., 51
F.2d 525, 527.
IMMORAL CONDUCT. Within rules authorizing
disbarment of attorney is that conduct which is
willful, flagrant, or shameless, and which shows a
moral indifference to the opinions of the good and
respectable members of the community. Warkentin v. Kleinwachter, 166 Okl. 218, 27 P.2d 160.
IMMORAL CONSIDERATION. One contrary to
good morals, and therefore invalid. Contracts
based upon an immoral consideration are generally void.
IMMORAL CONTRACTS. Contracts founded upon considerations contra bonos mores are void.
To "impair the obligation of a contract" within Const.
U.S. art. 1, § 10, is to weaken it, lessen its value, or make
it worse in any respect or in any degree, and any law
which changes the intention and legal effect of the parties,
giving to one a greater and to the other a less interest or
benefit, or which imposes conditions not included in the
contract or dispenses with the performance of those
included, impairs the obligation of the contract. O'Connor
v. Hartford Accident & Indemnity Co., 97 Conn. 8, 115 A.
484, 486.
A statute "impairs the obligation of a contract" when by
its terms it nullifies or materially changes existing contract obligations. Oil Fork Development Co. v. Huddleston, 202 Ky. 261, 259 S.W. 334, 335; McNee v. Wall,
D.C.Fla., 4 F.Supp. 496, 498.
The word "impair" means, according to the standard
writers in our language, simply "to diminish; to injure;
to make worse," etc. It is remarkable that in framing the
provision of the federal Constitution providing that no law
should be passed, "impairing the obligation of any contract," the convention did not use the term "lessen" or
"decrease" or "destroy," but one more comprehensive,
which prohibited making worse in any respect a contract
legitimate in its creation. The object, then, of its provision, may have been to establish an important principle,
and that was the entire inviolability of contracts. Blair v.
Williams, 14 Ky. (4 Litt.) 34, 35; Lapsley v. Brashears, 14
Ky. (4 Litt.) 47, 69.
See 2 Story, Const. §§ 1374-1399; 1 Kent, Comm.
413-422; Pom. Const. Law; Black, Const. Law
(3d Ed.) p. 720 et seq.
IMPALARE. To impound. Du Cange.
885
IMPANEL
IMPANEL. In English practice. To impanel a
jury signifies the entering by the sheriff upon a
piece of parchment, termed a "panel," the names
of the jurors who have been summoned to appear
in court on a certain day to form a jury of the
country to hear such matters as may be brought
before them. Brown.
In American practice. Besides the meaning
above given, "impanel" signifies the act of the
clerk of the court in making up a list of the jurors who have been selected for the trial of a particular cause. All the steps of ascertaining who
shall be the proper jurors to sit in the trial of a
particular case up to the final formation. People
v. Poole, 284 Ill. 39, 119 N.E. 916.
Impaneling has nothing to do with drawing, selecting, or
swearing jurors, but means simply making the list of those
who have been selected. Porter v. People, 7 How.Prac.
( N.Y.) 441; State ex rel. Green v. Pearson, 153 Fla. 314,
14 So.2d 565, 567.
IMPARCARE. In old English law. To impound.
Reg. Orig. 92b. To shut up, or confine in prison.
Inducti sunt in carcerem et imparcati, they were
carried to prison and shut up. Bract. fol. 124.
IMPARGAMENTUM. The right of impounding
cattle.
IMPARL. To have license to settle a litigation
amicably; to obtain delay for adjustment.
IMPARLANCE. In early practice, imparlance
meant time given to either of the parties to an
action to answer the pleading of the other. It thus
amounted to a continuance of the action to a further day. Literally the term signified leave given
to the parties to talk together; i. e., with a view
to settling their differences amicably. But in
modern practice it denotes a time given to the
defendant to plead.
A general imparlance is the entry of a general prayer and
allowance of time to plead till the next term, without
reserving to the defendant the benefit of any exception; so
that after such an imparlance the defendant cannot object
to the jurisdiction of the court, or plead any matter in
abatement. This kind of imparlance is always from one
term to another. Colby v. Knapp, 13 N.H. 175; Mack v.
Lewis, 67 Vt. 383, 31 Atl. 888.
A general special imparlance contains a saving of all
exceptions whatsoever, so that the defendant after this may
plead not only in abatement, but he may also plead a plea
which affects the jurisdiction of the court, as privilege. He
cannot, however, plead a tender, and that he was always
ready to pay, because by craving time, he admits that he is
not ready, and so falsifies his plea.
A special imparlance reserves to the defendant all exceptions to the writ, bill, or count; and therefore after it the
defendant may plead in abatement, though not to the jurisdiction of the court. 1 Tidd, Pr. 462, 463.
IMPARSONEE. L. Fr. In ecclesiastical law.
One who is inducted and in possession of a benefice. Parson imparsonee (persona impersonata).
Cowell; Dyer, 40.
IMPARTIAL. Favoring neither; disinterested;
treating all alike; unbiased; equitable, fair, and
just. Evans v. Superior Court in and for Los
Angeles County, 107 Cal.App. 372, 290 P. 662, 666.
The provision of the Bill of Rights requiring that the
accused shall have a fair trial by an impartial jury, means
that the jury must be not partial, not favoring one party
more than another, unprejudiced, distinterested, equitable,
and just, and that the merits of the case shall not be prejudged. Duncan v. State, 79 Tex.Cr.R. 206, 184 S.W. 195,
196.
IMPARTIAL JURY. Within constitutional provision is one which is of impartial frame of mind
at beginning of trial, is influenced only by legal
and competent evidence produced during trial, and
bases its verdict upon evidence connecting defendant with the commission of the crime charged.
Const.U.S. Amend. 6. Durham v. State, 182 Tenn.
577, 188 S.W.2d 555, 558, 160 A.L.R. 746.
For "Fair and Impartial Jury," and "Fair and
Impartial Trial," see those titles.
IMPARTIBLE FEUD. See Feudum Individuum.
IMPATRONIZATION. In ecclesiastical law. The
act of putting into full possession of a benefice.
IMPEACH. To accuse; to charge a liability upon;
to sue. To dispute, disparage, deny, or contradict;
as, to impeach a judgment or decree; or as used
in the rule that a jury cannot "impeach their verdict." Wolfgram v. Schoepke, 123 Wis. 19, 100 N.
W. 1056. To proceed against a public officer for
crime or misfeasance, before a proper court, by
the presentation of a written accusation called
"articles of impeachment."
In the Law of Evidence. To call in question the
veracity of a witness, by means of evidence adduced for that purpose, or the adducing of proof
that a witness is unworthy of belief. Johnston v.
Belk-McKnight Co. of Newberry, 188 S.C. 149, 198
S.E. 395, 399.
IMPEACHMENT. A criminal proceeding against
a public officer, before a quasi political court, instituted by a written accusation called "articles
of impeachment;" for example, a written accusation by the house of representatives of the United
States to the senate of the United States against
an officer.
"Impeachment" of the Governor, within the meaning of
section 16, art. 6, of the Constitution, is the adoption of
articles of impeachment by the House of Representatives,
and the presentation thereof to the Senate, and the indication by that body that the same are accepted for the purpose of permitting prosecution thereof, and the impeachment of the Governor operates to suspend him; the duties
and emoluments of the office automatically devolving upon
the Lieutenant Governor for the remainder of the term or
until the disability is removed by the acquittal of the Governor of the charges preferred against him. State v. Chambers, 96 Okl. 78, 220 P. 890, 891, 30 A.L.R. 1144; People
ex rel. Robin v. Hayes, 143 N.Y.S. 325, 329, 82 Misc. 165.
In England, a prosecution by the house of commons
before the house of lords of a commoner for treason, or
other high crimes and misdemeanors, or of a peer for any
crime.
Evidence
The adducing of proof that a witness is unworthy of belief. State v. Roybal, 33 N.M. 540,
273 P. 919, 922.
General
Articles of impeachment. The formal written
allegation of the causes for an impeachment, answering the same purpose as an indictment in an
ordinary criminal proceeding.
886
IMPERTINENT
IMPERATOR. Emperor. The title of the Roman
emperors, and also of the Kings of England before the Norman conquest. Cod. 1, 14, 12; 1 BL
Comm. 242. See Emperor.
Collateral impeachment. See Collateral attack.
Impeachment of annuity. A term sometimes
used in English law to denote anything that operates as a hindrance, impediment or obstruction
of the making of the profits out of which the annuity is to arise. Pitt v. Williams, 4 Adol. & El.
885.
IMPERFECT. As used in various legal compound
terms, this word means defective or incomplete;
wanting in some legal or formal requisite; wanting in legal sanction or effectiveness; as in speaking of imperfect "obligations," "ownership,"
"rights," "title," "usufruct," or "war." See those
nouns.
Impeachment of waste. Liability for waste committed; or a demand or suit for compensation for
waste committed upon lands or tenements by a
tenant thereof who, having only a leasehold or
particular estate, had no right to commit waste.
2 Bl. Comm. 283; Sanderson v. Jones, 6 Fla. 480,
63 Am.Dec. 217.
IMPERII MAJESTAS EST TUTELIE SALUS.
Co. Litt. 64. The majesty of the empire is the
safety of its protection.
Impeachment of witness. Adducing proof that a
witness who has testified in a cause is unworthy
of credit. White v. Railroad Co., 142 Ind. 648, 42
N.E. 456.
IMPERITIA. Lat. Unskillfulness; want of skill.
IMPERITIA CULP1E ADNUMERATUR. Want
of skill is reckoned as culpa; that is, as blamable
conduct or neglect. Dig. 50, 17, 132.
IMPECHIARE. To impeach, to accuse, or prosecute for felony or treason.
IMPERITIA EST MAXIMA MECHANICORUM
PCENA. Unskillfulness is the greatest punishment of mechanics; [that is, from its effect in
making them liable to those by whom they are employed.] 11 Coke, 54a. The word "pcena" in some
translations is erroneously rendered "fault."
IMPEDE. To obstruct; hinder; check; delay.
Erie R. Co. v. Board of Public Utility Com'rs, 98 A.
13, 19, 89 N.J.L. 57.
IMPEDIATUS. Disabled from mischief by expeditation (q. v.). Cowell.
IMPERIUM. The right to command, which includes the right to employ the force of the state
to enforce the laws. This is one of the principal
attributes of the power of the executive. 1 Toullier, no. 58.
IMPEDIENS. In old practice. One who hinders;
an impedient. The defendant or deforciant in a
fine was sometimes so called. Cowell; Blount.
IMPERSONALITAS. Lat. Impersonality. A
mode of expression where no reference is made to
any person, such as the expression "ut dicitur,"
(as is said.) Co. Litt. 352b.
IMPEDIMENTO. In Spanish law. A prohibition
to contract marriage, established by law between
certain persons.
IMPEDIMENTS. Disabilities, or hindrances to
the making of contracts, such as coverture, infancy, want of reason, etc.
IMPERSONALITAS NON CONCLUDIT NEC
LIGAT. Co. Litt. 352 b. Impersonality neither
concludes nor binds.
In the Civil Law. Bars to marriage.
Absolute impediments are those which prevent
the person subject to them from marrying at all,
without either the nullity of marriage or its being
Dirimant impediments are those
punishable.
which render a marriage void; as where one of
the contracting parties is unable to marry by reason of a prior undissolved marriage. Prohibitive
impediments are those which do not render the
marriage null, but subject the parties to a punishment. Relative impediments are those which regard only certain persons with respect to each
other; as between two particular persons who are
related within the prohibited degrees. Bowyer,
Mod. Civil Law, 44, 45.
IMPERTINENCE.
Irrelevancy; the fault of not
properly pertaining to the issue or proceeding.
The introduction of any matters into a bill, answer, or other pleading or proceeding in a suit,
which are not properly before the court for decision, at any particular stage of the suit. Story,
Eq. Pl. § 266; Harrison v. Perea, 18 S.Ct. 129, 168
U.S. 311, 42 L.Ed. 478.
In Practice. A question propounded to a witness, or evidence offered or sought to be elicited,
is called "impertinent" when it has no logical bearing upon the issue, is not necessarily connected
with it, or does not belong to the matter in hand.
1 Whart. Ev. § 20.
IMPEDITOR.
In old English law. A disturber in
the action of quare impedit. St. Marlb. c. 12.
IMPENSIE. Lat. In the civil law. Expenses;
outlays. Mackeld. Rom. Law, § 168; Calvin. Divided into necessary, (necessaries,) useful, (utiles,) and tasteful or ornamental, (voluptuarice.)
Dig. 50, 16, 79. See Id. 25, 1.
IMPERATIVE.
Mandatory. See Directory.
On the distinction between pertinency and relevancy, we
may quote the following remark of Dr. Wharton : "Relevancy is that which conduces to the proof of a pertinent
hypothesis ; a pertinent hypothesis being one which, if
sustained, would logically influence the issue."
IMPERTINENT.
In Equity Pleading. That
which does not belong to a pleading, interrogatory,
or other proceeding; out of place; superfluous;
irrelevant. Chew v. Eagan, 87 N.J.Eq. 80, 99 A.
611; Bean v. Central Maine Power Co., 133 Me. 9,
173 A. 498, 501.
887
IMPERTINENT
In construing a will conjecture must not be taken for
i mplication; but necessary implication means, not natural
necessity, but so strong a probability of intention that an
intention contrary to that which is imputed to the testator
cannot be supposed. 1 Ves. & B. 466.
At Law. A term applied to matter not necessary to constitute the cause of action or ground
of defense. Cowp. 683; 5 East, 275; Tucker v.
Randall, 2 Mass. 283. It constitutes surplusage,
( which see.)
"Implication" is also used in the sense of "inference;"
e., where the existence of an intention is inferred from acts not done for the sole
purpose of communicating it, but for some other
purpose. Sweet.
IMPESCARE. In old records. To impeach or accuse. Impescatus, impeached. Blount.
IMPETITIO VASTI. Impeachment of waste, (q.
v.)
Necessary implication
In construing a will, necessary implication means not
natural necessity, but so strong a probability of intention
that an intention contrary to that which is imputed to the
testator cannot be supposed. Wilkinson v. Adam, 1 Ves. &
B. 466; Gilbert v. Craddock, 67 Kan. 346, 72 P. 869.
IMPETRARE. In old English practice. To obtain by request, as a writ or privilege. Bract. fols.
57, 172b. This application of the word seems to be
derived from the civil law. Calvin.
IMPETRATION. In old English law. The obtaining anything by petition or entreaty. Particularly,
the obtaining of a benefice from Rome by solicitation, which benefice belonged to the disposal of
the king or other lay patron. Webster; Cowell.
IMPLIED. This word is used in law as contrasted
with "express;" e., where the intention in regard to the subject-matter is not manifested by
explicit and direct words, but is gathered by implication or necessary deduction from the circumstances, the general language, or the conduct of
the parties.
IMPIER. Umpire (q. v.).
IMPEERMENT. Impairing or prejudicing. Jacob.
IMPIGNORATA. Pledged; given in pledge, (pignori data;) mortgaged. A term applied in Bracton to land. Bract. fol. 20.
IMPIGNORATION. The act of pawning or putting to pledge.
As to implied "Abrogation," "Agreement," "Assumpsit," "Condition," "Confession," "Consent,"
"Consideration," "Contract," "Covenant," "Dedication," "Easement," "Invitation," "Malice," "Notice," "Obligation," "Powers," "Trust," "Use,"
"Waiver," and "Warranty," see those titles.
IMPORTATION. The act of bringing goods and
merchandise into a country from a foreign country. Cunard Steamship Co. v. Mellon, 43 S.Ct. 504,,
262 U.S. 100, 67 L.Ed. 894, 27 A.L.R. 1306.
IMPIUS ET CRUDELIS JUDICANDUS EST QUI
LIBERTATI NON FAVET. He is to be judged
impious and cruel who does not favor liberty. Co.
Litt. 124.
IMPORTED. This word, in general, has the same
meaning in the tariff laws that its etymology
shows, in porto, to carry in. To "import" is to
bear or carry into. An "imported" article is one
brought or carried into a country from abroad.
The Conqueror, 49 Fed. 99. See Imports.
IMPLACITARE. Lat. To implead; to sue.
EVIPLEAD. In practice. To sue or prosecute by
due course of law. People v. Clarke, 9 N.Y. 368.
IMPLEADED. Sued or prosecuted; used particularly in the titles of causes where there are several defendants; as "A. B., impleaded with C. D."
IMPORTS. Importations; goods or other property imported or brought into the country from a
foreign country.
IMPLEMENTS. Such things as are used or employed for a trade, or furniture of a house. Whatever may supply wants; particularly applied to
tools, utensils, vessels, instruments of labor; as,
the implements of trade or of husbandry. Goddard v. Chaffee, 2 Allen (Mass.) 395, 79 Am.Dec.
796. Mississippi Road Supply Ca. v. Hester, 185
Miss. 839, 188 So. 281, 287, 124 A.L.R. 574.
IMPORTUNITY. Pressing solicitation; urgent
request; application for a claim or favor which is
urged with troublesome frequency or pertinacity.
Webster.
IMPLICATA. A term used in mercantile law, derived from the Italian. In order to avoid the risk
of making fruitless voyages, merchants have been
in the habit of receiving small adventures, on
freight, at so much per cent, to which they are
entitled at all events, even if the adventure be
lost; and this is called "implicata." Wharton.
IMPLICATION. Intendment or inference, as distinguished from the actual expression of a thing
in words. In a will, an estate may pass by mere
implication, without any express words to direct
its course. 2 Bl. Comm. 381.
An inference of something not directly declared, but
arising from what is admitted or expressed.
IMPOSE. To levy or exact as by authority; to
lay as a burden, tax, duty or charge. State v.
Nickerson, 97 Neb. 837, 151 N.W. 981, 982.
IMPOSITION. An impost; tax; contribution.
Paterson v. Society, 24 N.J.L. 400; Singer Mfg. Co.
v. Heppenheimer, 58 N.J.L. 633, 34 A. 1061, 32 L.
R.A. 643; Town of Brandon v. Harvey, 105 Vt.
435, 168 A. 708, 710.
IMPOSSIBILITY. That which, in the constitution
and course of nature or the law, no man can do
or perform. Klauber v. San Diego Street-Car Co.,
95 Cal. 353, 30 P. 555.
Impossibility of performance of contract, absolving party
from liability for nonperformance, means not only strict
i mpossibility, but impracticability because of extreme arid
unreasonable difficulty, expense, injury or loss involved.
888
IMPRISONMENT
Fisher v. United States Fidelity & Guaranty Co., 313 Ill.
App. 66, 39 N.E.2d 67, 70; Transbay Const. Co. v. City and
County of San Francisco, D.C.Cal., 35 F.Supp. 433, 436.
impossibie contract. One which the law will not hold
binding upon the parties, because of the natural or legal
impossibility of the performance by one party of that
which is the consideration for the promise of the other.
7 Wait, Act. & Def. 124.
Impossible contracts, which will be deemed void in the
eye of the law, or of which the performance will be
excused, are such contracts as cannot be performed, either
because of the nature of the obligation undertaken, or
because of some supervening event which renders the performance of the obligation either physically or legally
impossible. 10 Amer. & Eng.Enc.Law, 176.
person's trees, or conies, etc., make their nests or
burrows in a person's land, and have young there,
such person has a qualified property in them till
they can fly or run away, and then such property
expires. 2 Steph.Comm. (7th Ed.) 8.
IMPOUND. To shut up stray animals or distrained goods in a pound. Chenango County Humane
Soc. v. Polmatier, 177 N.Y.S. 101, 103, 188 App.Div.
419. To take into the custody of the law or of a
court. Thus, a court will sometimes impound a
suspicious document produced at a trial.
Impossibility is of the following several sorts:
An act is physically impossible when it is contrary to the course of nature. Such an impossibility may be either absolute, i. e., impossible in
any case, (e. g., to stop earth rotation) or relative, (sometimes called "impossibility in fact")
i. e., arising from the circumstances of the case,
(e. g., for A. to make a payment to B., he being
a deceased person.) To the latter class belongs
what is sometimes called "practical impossibility," which exists when the act can be done, but
only at an excessive or unreasonable cost. An
act is legally or juridically impossible when a rule
of law makes it impossible to do it; e. g., for A.
to make a valid will before his majority. This
class of acts must not be confounded with those
which are possible, although forbidden by law, as
to commit a theft. An act is logically impossible
when it is contrary to the nature of the transaction, as where A. gives property to B. expressly
for his own benefit, on condition that he transfers
it to C. Sweet.
IMPOSSIBILIUM NULLA OBLIGATIO EST.
There is no obligation to do impossible things.
Dig. 50, 17, 185; Broom, Max. 249.
IMPOSTS. Taxes, duties, or impositions levied
for divers reasons. Crew Levick Co. v. Commonwealth of Pennsylvania, 38 S.Ct. 126, 245 U.S.
292, 62 L.Ed. 295.
Impost is a tax received by the prince for such merchandises as are brought into any haven within his dominions
from foreign nations. It may in some sort be distinguished
from customs, because customs are rather that profit the
prince maketh of wares shipped out; yet they are frequently confounded. Cowell.
IMPOTENCE. In
medical jurisprudence. Inability to copulate. Properly used of the male;
but it has also been used synonymously with
"sterility." Smith v. Smith, 206 Mo.App. 646, 229
S.W. 398; Heinemann v. Heinemann, 118 Or. 178,
245 P. 1082, 1083.
IMPRESCRIPTIBILITY.
The state or quality of
being incapable of prescription; not of such a
character that a right to it can be gained by prescription.
IMPRESCRIPTIBLE RIGHTS.
Such rights as a
person may use or not, at pleasure, since they
cannot be lost to him by the claims of another
founded on prescription.
IMPRESSION,
CASE OF FIRST. One without a
precedent; one presenting a wholly new state of
facts; one involving a question never before determined.
IMPRESSMENT. A power possessed by the English crown of taking persons or property to aid
in the defense of the country, with or without the
consent of the persons concerned. It is usually
exercised to obtain hands for the royal ships in
time of war, by taking seamen engaged in merchant vessels, (1 Bl.Comm. 420; Maud & P. Shipp.
123;) but in former times impressment of merchant ships was also practiced. The admiralty issues protections against impressment in certain
cases, either under statutes passed in favor of certain callings (e. g., persons employed in the Greenland fisheries) or voluntarily. Sweet.
IMPREST MONEY.
Money paid on enlisting or
impressing soldiers or sailors.
IMPRETIABILIS. Lat. Beyond price; invaluable.
IMPRIMATUR.
Lat. Let it be printed. A license or allowance, granted by the constituted authorities, giving permission to print and publish a
book. This allowance was formerly necessary, in
England, before any book could lawfully be printed, and in some other countries is still required.
IMPRIMERE. To press upon; to impress or
press; to imprint or print.
Impotency as a ground for divorce means want of potentia copulandi or incapacity to consummate the marriage,
and not merely incapacity for procreation. Reed v. Reed,
26 Tenn.App. 690, 177 S.W.2d 26, 27.
IMPRIMERY. In some of the ancient English
statutes this word is used to signify a printingoffice, the art of printing, a print or impression.
IMPOTENTIA EXCUSAT LEGEM.
IMPRIMIS. Lat. In the first place; first of all.
Co.Litt. 29.
The impossibility of doing what is required by
the law excuses from the performance.
IMPOTENTIAM, PROPERTY PROPTER. A
qualified property, which may subsist in animals
ferce naturce on account of their inability, as
where hawks, herons, or other birds build in a
IMPRISON. To put in a prison; to put in a place
of confinement. To confine a person, or restrain
his liberty, in any way.
IMPRISONMENT. The act of putting or confining a man in prison; the restraint of a man's personal liberty; coercion exercised upon a person
889
IMPRISONMENT
to prevent the free exercise of his powers of locomotion. State v. Shaw, 73 Vt. 149, 50 A. 863.
It is not a necessary part of the definition that the con-
finement should be in a place usually appropriated to that
purpose; it may be in a locality used only for the specific
occasion; or it may take place without the actual application of any physical agencies of restraint, (such as locks or
bars,) but by verbal compulsion and the display of available force. Pike v. Hanson, 9 N.H. 491. Every confinement
of the person is an "imprisonment," whether it be in a
common prison, or in a private house, or in the stocks, or
even by forcibly detaining one in the public streets. Norton v. Mathers, 222 Iowa 1170, 271 N.W. 321, 324.
False imprisonment
The unlawful arrest or detention of a person without
warrant, or by an illegal warrant, or a warrant illegally
executed, and either in a prison or a place used temporarily
for that purpose, or by force and constraint without confinement. Eberling v. State, 136 Ind. 117, 35 N.E. 1023.
False imprisonment consists in the unlawful detention of
the person of another, for any length of time, whereby he
is deprived of his personal liberty. Mahan v. Adam, 144
Md. 355, 124 A. 901, 904. The unlawful detention of the
occupant of an automobile may be accomplished by driving so rapidly that he cannot alight. Blashfleld, Cyc. of
Automobile Law and Prac., Perm.Ed., § 5528.26.
The term is also used as the name of the action which
lies for this species of injury. 3 Bl.Comm. 138; Buttrey v.
Wilhite, 208 Ala 573. 94 So. 585; Christ v. McDonald, 152
Or. 494, 52 P.2d 655, 658.
IMPRISTI.
Adherents; followers. Those who
side with or take the part of another, either in his
defense or otherwise.
IMPROBABLE.
Unlikely to be true, or to occur,
not to be readily believed. Johnson v. Tregle, La.
App., 8 So.2d 755, 758.
IMPROBATION.
In Scotch law. An action
brought for the purpose of having some instrument declared false and forged. 1 Forb.Inst. pt.
4, p. 161. The verb "improve" (q, v.) was used in
the same sense.
IMPROPER.
Not suitable; unfit; not suited to
the character, time, and place. Godbey v. Godbey,
70 Ohio App. 455, 44 N.E.2d 810, 813.
IMPROPER CUMULATION OF ACTIONS.
An
attempt to join in one proceeding inconsistent
causes of action. Toms v. Nugent, La.App., 12
So.2d 713, 715.
IMPROPER FEUDS.
These were derivative
feuds; as, for instance, those that were originally bartered and sold to the feudatory for a price,
or were held upon base or less honorable services,
or upon a rent in lieu of military service, or were
themselves alienable, without mutual license, or
descended indifferently to males or females.
Wharton.
IMPROPER INFLUENCE.
v.)
Undue influence (q.
Millican v. Millican, 24 Tex. 446.
IMPROPER NAVIGATION.
Anything improperly done with the ship or part of the ship in the
course of the voyage. L.R. 6 C.P. 563. See, also,
53 Law J.P.D. 65.
IMPROPRIATION.
In ecclesiastical law. The
annexing an ecclesiastical benefice to the use of
a lay person, whether individual or corporate, in
the same way as appropriation is the annexing of
any such benefice to the proper and perpetual use
of some spiritual corporation, whether sole or aggregate, to enjoy forever. Brown.
IMPROPRIATE RECTOR.
In ecclesiastical law.
Commonly signifies a lay rector as opposed to a
spiritual rector; just as impropriate tithes are
tithes in the hands of a lay owner, as opposed to
appropriate tithes, which are tithes in the hands
of a spiritual owner. Brown.
IMPROVE.
In Scotch law. To disprove; to invalidate or impeach; to prove false or forged. 1
Forb. Inst. pt. 4, p. 162.
To improve a lease means to grant a lease of
unusual duration to encourage a tenant, when the
soil is exhausted, etc. Bell; Stair, Inst. p. 676, §
23.
To meliorate, make better, to increase the value
or good qualities of, mend, repair, as to "improve"
a street by grading, parking, curbing, paving, etc.
State ex rel. County of Ramsey v. Babcock, 186
Minn, 132, 242 N.W. 474, 476.
IMPROVED. Improved land is such as has been
reclaimed, is used for the purpose of husbandry,
and is cultivated as such, whether the appropriation is for tillage, meadow, or pasture. "Improve"
is synonymous with "cultivate." Clark v. Phelps,
4 Cow. (N.Y.) 190.
IMPROVEMENT. A
valuable addition made to
property (usually real estate) or an amelioration
in its condition, amounting to more than mere repairs or replacement of waste, costing labor or
capital, and intended to enhance its value, beauty
or utility or to adapt it for new or further purposes. Spencer v. Tobey, 22 Barb., N.Y., 269; Allen v. McKay, 120 Cal. 332, 52 P. 828.
In American land law. An act by which a locator or settler expresses his intention to cultivate
or clear certain land; an act expressive of the actual possession of land; as by erecting a cabin,
planting a corn-field, deadening trees in a forest;
or by merely marking trees, or even by piling up
a brush-heap. Burrill. In re Leet Tp. Road, 159
Pa. 72, 28 A. 238.
An "improvement," under our land system, does not
mean a general enhancement of the value of the tract from
the occupant's operations. It has a more limited meaning,
which has in view the population of our forests, and the
increase of agricultural products. All works which are
directed to the creation of homes for families, or are substantial steps towards bringing lands into cultivation, have
in their results the special character of "improvements,"
and, under the land laws of the United States and of the
several states, are encouraged. Sometimes their minimum
extent is defined as requisite to convey rights. In other
cases not. But the test. which runs through all the cases
is always this : Are they real, and made bona fide, in
accordance with the policy of the law, or are they only
colorable, and made for the purpose of fraud and speculation? Simpson v. Robinson, 37 Ark. 137.
In the law of patents. An addition to, or modification of, a previous invention or discovery, intended or claimed to increase its utility or value.
2 Kent, Comm. 366-372. Steiner Sales Co. v.
Schwartz Sales Co., C.C.A.Utah, 98 F.2d 999, 1010.
890
IN IEQUALI
It includes two necessary ideas: the idea of a
complete and practical operative art or instrument and the idea of some change in such art or
instrument not affecting its essential character
but enabling it to produce its appropriate results
in a more perfect or economical manner. Rob.
Pat. § 210.
he is personally cognizant of it or responsible for
it, but because another person is, over whom he
has control or for whose acts or knowledge he is
responsible.
IMPUTED KNOWLEDGE. This phrase is sometimes used as equivalent to "implied notice," i. e.,
knowledge attributed or charged to a person (often contrary to the fact) because the facts in question were open to his discovery and it was his duty
to inform himself as to them. Roche v. Llewellyn
Iron Works Co., 140 Cal. 563, 74 P. 147.
Local improvement. See Local Improvement.
IMPROVEMENTS. A term used in leases, of
doubtful meaning. It would seem to apply principally to buildings, though generally it extends
to the amelioration of every description of property, whether real or personal; but, when contained in any document, its meaning is generally
explained by other words. 1 Chit. Gen. Pr. 174.
IMPROVIDENCE. As used in a statute excluding one found incompetent to execute the duties
of an administrator by reason of improvidence,
means that want of care and foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe,
and liable to be lost or diminished in value, in case
the administration should be committed to the
improvident person. In re Fulper's Estate, 99 N.
J.Eq. 293, 132 A. 834, 843.
IMPROVIDENTLY. A judgment, decree, rule,
injunction, etc., when given or rendered without
adequate consideration by the court, or without
proper information as to all the circumstances affecting it, or based upon a mistaken assumption
or misleading information or advice, is sometimes
said to have been "improvidently" given or issued.
IMPRUIARE. In old records. To improve land.
Impruiamentum, the improvement so made of it.
Cowell.
IMPUBES. Lat. In the civil law. A minor under the age of puberty; a male under fourteen
years of age; a female under twelve. Calvin.;
Mackeld.Rom.Law, § 138.
IMPULSE. As to "irresistible" or "uncontrollable" impulse, see Insanity.
IMPUNITAS CONTINUUM AFFECTUM TRIBUIT DELINQUENDI. 4 Coke, 45. Impunity confirms the disposition to commit crime.
IMPUTED NEGLIGENCE. Negligence which is
not directly attributable to the person himself, but
which is the negligence of a person who is in privity with him, and with whose fault he is chargeable. Smith v. Railroad Co., 38 N.Y.S. 666, 4 App.
Div. 493.
IMPUTED NOTICE. Information as to a given
fact or circumstance charged or attributed to a
person, and affecting his rights or conduct on the
ground that actual notice was given to some person whose duty was to report it to the person to
be affected, as, his agent or his attorney of record.
IN. In the law of real estate, this preposition has
always been used to denote the fact of seisin, title, or possession, and apparently serves as an
elliptical expression for some such phrase as "in
possession," or as an abbreviation for "intitled" or
"invested with title." Thus, in the old books, a
tenant is said to be "in by lease of his lessor."
Litt. § 82.
An elastic preposition in other cases, expressing
relation of presence, existence, situation, inclusion, action, etc.; inclosed or surrounded by limits,
as in a room; also meaning for, in and about, on,
within, etc., according to context. Ex parte Perry,
71 Fla. 250, 71 So. 174, 176. Rester v. Moody &
Stewart, 172 La. 510, 134 So. 690, 692.
IN ACTION. Attainable or recoverable by action;
not in possession. A term applied to property of
which a party has not the possession, but only a
right to recover it by action. Things in action are
rights of personal things, which nevertheless are
not in possession. See Chose in Action.
IMPUNITIES SEMPER AD DETERIORA INVITAT. 5 Coke, 109. Impunity always invites
to greater crimes.
IN ADVERSUM. Against an adverse, unwilling,
or resisting party. "A decree not by consent, but
in adversum." 3 Story, 318.
IMPUNITY. Exemption or protection from penalty or punishment. Dillon v. Rogers, 36 Tex. 153.
IN ZEDIFICIIS LAPIS MALE POSITUS NON
EST REMOVENDUS. 11 Coke, 69. A stone badly placed in buildings is not to be removed.
IMPUTATIO. Lat. In the civil law. Legal liability.
IMPUTATION OF PAYMENT. In the civil law.
The application of a payment made by a debtor
to his creditor.
IMPUTED. As used in legal phrases, this word
means attributed vicariously; that is, an act, fact,
or quality is said to be "imputed" to a person
when it is ascribed or charged to him, not because
IN IEQUA MANU. In equal hand. Fleta, lib. 3,
c. 14, § 2.
IN ,EQUALI JURE. In equal right; on an equality in point of right.
IN LEQUALI JURE MELIOR EST CONDITIO
POSSIDENTIS. In [a case of] equal right the
condition of the party in possession is the better
Plowd. 296; Broom, Max. 713.
891
IN ZEQUALI
IN ZEQUALI MANU. In equal hand; held equally or indifferently between two parties. Where an
instrument was deposited by the parties to it in
the hands of a third person, to keep on certain
conditions, it was said to be held in cequali mane.
Reg. Orig. 28.
IN ALIENO SOLO. In another's land. 2 Steph.
Comm. 20.
IN ALIO LOCO. In another place.
IN ALTA PRODITIONE NULLUS POTEST ESSE
ACCESSORIUS SED PRINCIPALIS SOLUMMODO. 3 Inst. 138. In high treason no one can be
an accessary but only principal.
IN ALTERNATIVIS ELECTIO EST DEBITORIS.
In alternatives the debtor has the election.
IN AMBIGUA VOCE LEGIS EA POTIUS ACCIPIENDA EST SIGNIFICATIO QUIE VITIO
CARET, PRIESERTIM CUM ETIAM VOLUNTAS
LEGIS EX HOC COLLIGI POSSIT. In an ambiguous expression of law, that signification is to
be preferred which is consonant with equity, especially when the spirit of the law can be collected
from that. Dig. 1, 3, 19; Broom, Max. 576.
IN AMBIGUIS CASIBUS SEMPER PRAESUMITUR PRO REGE. In doubtful cases the presumption is always in favor of the king.
IN AMBIGUIS ORATIONIBUS MAXIME SENTENTIA SPECTANDA EST EJUS QUI EAS PRO-.
TULISSET. In ambiguous expressions, the intention of the person using them is chiefly to be regarded. Dig. 50, 17, 96; Broom, Max. 567.
IN AMBIGUO. In doubt.
IN AMBIGUO SERMONE NON UTRUMQUE DICIMUS SED ID DUNTAXAT QUOD VOLUMUS.
When the language we use is ambiguous, we do
not use it in a double sense, but in the sense in
which we mean it. Dig. 34. 5. 3; 2 De G. M. & G.
313.
IN ANGLIA NON EST INTERREGNUM. In England there is no interregnum. Jenk. Cent. 205;
Broom, Max. 50.
IN APERTA LUCE. In open daylight; in the
day-time. 9 Coke, 65b.
IN APICIBUS JURIS. Among the subtleties or
extreme doctrines of the law. 1 Kames, Eq. 190.
See Apex Juris.
IN ARBITRIUM JUDICIS. At the pleasure of the
judge.
IN ATROCIORIBUS DELICTIS PUNITUR AFFECTUS LICET NON SEQUATUR EFFECTUS.
2 Rolle R. 82. In more atrocious crimes the intent is punished, though an effect does not follow.
IN AUTRE DROIT. L. Fr. In another's right.
As representing another. An, executor, administrator, or trustee sues in autre droit.
IN BANCO. In bank; in the bench. A term applied to proceedings in the court in bank, as distinguished from the proceedings at nisi prius.
Also, in the English court of common bench.
IN BEING. In existence or life at a given moment of time, as, in the phrase "life or lives in
being" in the rule against perpetuities. An unborn
child may, in some circumstances be considered
as "in being." Phillips v. Herron, 55 Ohio St. 478,
45 N.E. 720.
IN BLANK. A term applied to the indorsement
of a bill or note where it consists merely of the
indorser's name, without restriction to any particular indorsee. 2 Steph.Comm. 164.
IN BONIS. Among the goods or property; in
actual possession. Inst. 4, 2, 2. In bonis defuncti,
among the goods of the deceased.
IN BULK. As a whole; as an entirety, without
division into items or physical separation in packages or parcels. Standard Oil Co. v. Corn., 119
Ky. 75, 82 S.W. 1022.
IN CAHOOTS. Jointly interested in property, or
common participants in enterprise. Clark v. State,
154 Miss. 457, 122 So. 534.
IN CAMERA. In chambers; in private. A cause
is said to be heard in camera either when the
hearing is had before the judge in his private
room or when all spectators are excluded from
the courtroom.
IN CAPITA. To the heads; by heads or polls.
Persons succeed to an inheritance in capita when
they individually take equal shares. So challenges
to individual jurors are challenges in capita, as
distinguished from challenges to the array.
IN CAPITE. In chief. 2 Bl.Comm. 60. Tenure
in capite was a holding directly from the king.
IN CASE. If, in the event. Barmore v. Darragh,
Tex.Civ.App., 231 S.W. 472, 478.
IN CASU EXTREME NECESSITATIS OMNIA
SUNT COMMUNIA. Hale, P. C. 54. In cases of
extreme necessity, everything is in common.
IN CASU PROVISO. In a (or the) case provided.
In tali casu editum et provisum, in such case made
and provided. Townsh. P1.164, 165.
IN ARCTA ET SALVA CUSTODIA. In close and
safe custody. 3 Bl.Comm. 415.
IN ARTICULO. In a moment; immediately. Cod.
1, 34, 2.
IN CAUSA. In the cause, as distinguished from
in initialibus (q. v.) A term in Scotch practice.
1 Brown, Ch. 252.
IN ARTICULO MORTIS. In the article of death;
at the point of death. Jackson v. Vredenbergh,
1 Johns. (N.Y.) 159.
IN CHARGE OF. Means in the care or custody
of, or intrusted to the management or direction
892
IN DIEM
IN CONTINENTI. Immediately; without any interval or intermission. Calvin. Sometimes written as one word "incontinenti."
of. Sky v. Keystone Mut. Casualty Co., 150 Pa.
Super. 613, 29 A.2d 230, 232.
IN CHIEF.
Principal; primary; directly obtained. A term applied to the evidence obtained
from a witness upon his examination in court by
the party producing him.
Tenure in chief, or in capite, is a holding directly of the king or chief lord.
IN CONTRACTIBUS, BENIGNA; IN TESTAMENTIS, BENIGNIOR; IN RESTITUTIONIBUS,
BENIGNISSIMA INTERPRETATIO FACIENDA
EST. Co. Litt. 112. In contracts, the interpretation is to be liberal; in wills, more liberal; in
restitutions, most liberal.
IN CIVILIBUS MINISTERIUM EXCUSAT, IN
CRIMINALIBUS NON ITEM. In civil matters
IN CONTRACTIBUS, REI VERITAS POTIUS
QUAM SCRIPTURA PERSPICI DEBET. In con-
agency (or service) excuses, but not so in criminal
matters. Lofft, 228; Tray. Lat. Max. 243.
tracts, the truth of the matter ought to be regarded rather than the writing. Cod. 4, 22, 1.
IN CLARIS NON EST LOCUS CONJECTURIS.
IN CONTRACTIBUS, TACITE INSUNT EVENEUNT] QUIE SUNT MORIS ET CONSUETUDINIS. In contracts, matters of custom and usage
In things obvious there is no room for conjecture.
IN COMMENDAM.
In commendation; as a commended living. 1 Bl.Comm. 393. See Commenda.
A term applied in Louisiana to a limited partnership, answering to the French "en commandite." Civil Code La. art. 2810.
are tacitly implied. A contract is understood to
contain the customary clauses, although they are
not expressed. Story, Bills, § 143; 3 Kent, Comm.
260, note; Broom, Max. 842.
IN CONTRAHENDA VENDITIONE, AMBIGUUM
PACTUM CONTRA VENDITOREM INTERPRETANDUM EST. In the contract of sale, an am-
IN COMMODATO IIEC PACTIO, NE DOLUS
PRJESTETUR, RATA NON EST. In the contract
of loan, a stipulation not to be liable for fraud is
not valid. Dig. 13, 7, 17, pr.
biguous agreement is to be interpreted against
the seller. Dig. 50, 17, 172. See Id. 18, 1, 21.
IN COMMON.
Shared in respect to title, use, or
enjoyment, without apportionment or division into
individual parts; held by several for the equal
advantage, use, or enjoyment of all. Hewit v.
Jewell, 59 Iowa 37, 12 N.W. 738.
IN CONVENTIONIBUS, CONTRAHENTIUM
VOLUNTAS POTIUS QUAM VERBA SPECTARI
PLACUIT. In agreements, the intention of the
contracting parties, rather ti- an the words used,
should be regarded. Broom, Max. 551; Jackson
v. Wilkinson, 17 Johns. (N.Y.) 150.
IN CONLMUNI. In common. Fleta, lib. 3, c. 4, § 2.
IN CONJUNCTION WITH. In association with.
IN CORPORE.
In body or substance; in a material thing or object.
Blaisdell v. Inhabitants of Town of York, 110 Me.
500, 87 A. 361, 370.
On the morrow. In crastino Animarum, on the morrow of All Souls. 1 Bl.Comm.
IN CRASTINO.
IN CONJUNCTIVIS, OPORTET UTRAMQUE
PARTEM ESSE VERAM. In conjunctives it is
342.
necessary that each part be true. Wing, Max. 13,
max. 9. In a condition consisting of divers parts
in the copulative, both parts must be performed.
IN CONSIDERATIONE INDE.
IN CRIMINALIBUS, PROBATIONES DEBENT
ESSE LUCE CLARIORES. In criminal cases, the
proofs ought to be clearer than light. 3 Inst. 210.
In consideration
IN CONSIDERATIONE LEGIS.
IN CRIMINALIBUS, SUFFICIT GENERALIS
MALITIA INTENTIONIS, CUM FACTO PARIS
GRADUS. In criminal matters or cases, a general
IN CONSIDERATIONE PRZEMISSORUM. In
malice of intention is sufficient, Cif united] with
an act of equal or corresponding degree. Bac.
Max. p. 65, reg. 15; Broom, Max. 323.
thereof. 3 Salk. 64, pl. 5.
In consideration
or contemplation of law; in abeyance. Dyer, 102b.
consideration of the premises. 1 Strange, 535.
IN CONSIMILI CASU.
IN CRIMINALIBUS, VOLUNTAS REPUTABITUR
PRO FACTO. In criminal acts, the will will be
See Consimili Casu.
IN CONSIMILI CASU, CONSIMILE DEBET ESSE
REMEDIUM. Hardr. 65. In a similar case the
remedy should be similar.
IN CONSPECTU EJUS.
In his sight or view. 12
Mod. 95.
IN CONSUETUDINIBUS, NON DIUTURNITAS
TEMPORIS SED SOLIDITAS RATIONIS EST
CONSIDERANDA. In customs, not length of
time, but solidity of reason, is to be considered.
Co. Litt. 141a. The antiquity of a custom is to be
less regarded than its reasonableness.
taken for the deed. 3 Inst. 106.
IN CUJUS REI TESTIMONIUM. In testimony
whereof. The initial words of the concluding
clause of ancient deeds in Latin, literally translated in the English forms.
IN CUSTODIA LEGIS.
In the custody or keeping
of the law. 2 Steph.Comm. 74.
IN DELICTO.
In fault. See In Pari Delicto, etc.
IN DIEM. For a day; for the
Calvin.
893
space of a day.
IN DISJUNCTIVIS
IN DISJUNCTIVIS SUFFICIT ALTERAM PARTEM ESSE VERAM. In disjunctives it is sufficient that either part be true. Where a condition
is in the disjunctive, it is sufficient if either part
be performed. Wing. Max. 13, max. 9; Broom,
Max. 592; 7 East, 272.
IN EVIDENCE. Included in the evidence already
adduced. The "facts in evidence" are such as
have already been proved in the cause.
IN DOMINICO. In demesne. In dominico suo ut
de feodo, in his demesne as of fee.
IN EXCAMBIO. In exchange. Formal words in
old deeds of exchange.
IN DORSO. On the back. 2 Bl.Comm. 468; 2
Steph.Comm. 164. In dorso recordi, on the back of
the record. 5 Coke, 45. Hence the English indorse, indorsement, etc.
IN EXECUTION AND PURSUANCE OF. Words
used to express the fact that the instrument is
intended to carry into effect some other instrument, as in case of a deed in execution of a power.
They are said to be synonymous with "to effect
the object of;" U. S. v. Nunnemacher, 7 Biss. 129,
Fed. Cas. No. 15,903.
IN DUBIIS, BENIGNIORA PRZEFERENDA
SUNT. In doubtful cases, the more favorable
views are to be preferred; the more liberal interpretation is to be followed. Dig. 50, 17, 56; 2
Kent, Comm, 557.
IN DUBIIS, MAGIS DIGNUM EST ACCIPIENDUM. Branch, Princ. In doubtful cases, the more
worthy is to be accepted.
IN DUBIIS, NON PR1ESUMITUR PRO TESTAMENTO. In cases of doubt, the presumption is
not in favor of a will. Branch, Princ. But see
Cro. Car, 51.
IN DUBIO. In doubt; in a state of uncertainty, or
in a doubtful case.
IN DUBIO, 112EC LEGIS CONSTRUCTIO QUAM
VERBA OSTENDUNT. In a case of doubt, that is
the construction of the law which the words indicate. Branch, Princ.
IN DUBIO, PARS MITIOR EST SEQUENDA. In
doubt, the milder course is to be followed.
IN DUBIO, PRO LEGE FORI. In a doubtful case,
the law of the forum is to be preferred. "A false
maxim." Meili, Int. L. 151.
IN EST DE JURE. (Lat.) It is implied of right
or by law.
IN EXITU. In issue. De materia in exitu, of the
matter in issue. 12 Mod. 372.
IN EXPOSITIONE INSTRUMENTORUM, MALA
GRAMMATICA, QUOD FIERI POTEST, VITANDA EST. In the construction of instruments, bad
grammar is to be avoided as much as possible.
6 Coke, 39; 2 Pars, Cont. 26.
IN EXTENSO. In extension; at full length; from
beginning to end, leaving out nothing.
IN EXTREMIS. In extremity; in the last extremity; in the last illness. 2 Bl.Comm. 375, 500;
Prince v. Hazleton, 20 Johns. (N.Y.) 502, 11 Am.
Dec, 307. Agens in extremis, being in extremity.
Bract. fol. 373b. Declarations in extremis, dying
declarations. 1 Greenl. Ev. § 156; State v. Burton,
111 S.C. 526, 98 S.E. 856, 863. In extremis does
not always mean in articulo mortis. In re Mallery's Will, 127 Misc. 784, 217 N.Y.S. 489, 492.
IN FACIE CURIAE. In the face of the court.
Dyer, 28.
IN DUBIO, SEQUENDUM QUOD TUTIUS EST.
In doubt, the safer course is to be adopted.
IN DUPLO. In double. Damna in duplo, double
damages. Fleta, lib. 4, c. 10, § 1.
IN EADEM CAUSA. In the same state or condition. Calvin.
IN EMULATIONEM VICINI. In envy or hatred
of a neighbor. Where an act is done, or action
brought, solely to hurt or distress another, it is
said to be in emulationem vicini. 1 Karnes, Eq.
56.
IN EO QUOD PLUS SIT, SEMPER INEST ET
MINUS. In the greater is always included the
less also. Dig. 50, 17, 110.
IN EQUITY. In a court of equity as distinguished from a court of law; in the purview, consideration, or contemplation of equity; according to
the doctrines of equity.
IN ESSE. In being. Actually existing. Distinguished from in posse, which means "that which is
not, but may be." A child before birth is in posse;
after birth, in esse.
IN FACIE ECCLESLE. In the face of the church.
A term applied in the law of England to marriages, which are required to be solemnized in a
parish church or public chapel, unless by dispensation or license. 1 Bl.Comm. 439; 2 Steph.Comm.
288, 289. Applied in Bracton to the old mode of
conferring dower. Bract. fol. 92; 2 Bl.Comm. 133.
IN FACIENDO. In doing; in feasance; in the
performance of an act. 2 Story, Eq. Jur. § 1308.
IN FACT. Actual, real; as distinguished from
implied or inferred. Resulting from the acts of
parties, instead of from the act or intendment of
law.
IN FACTO. In fact; in deed. In facto dicit, in
fact says. 1 Salk. 22, p1.1.
IN FACTO QUOD SE HABET AD BONUM ET
MALUM, MAGIS DE BONO QUAM DE MALO
LEX INTENDIT. In an act or deed which admits
of being considered as both good and bad, the law
intends more from the good than from the bad;
the law makes the more favorable construction.
Co. Litt. 78b.
894
IN INDIVIDUO
IN GENERALI PASSAGIO. In the general pas-
IN FAVORABILIBUS MAGIS ATTENDITUR
QUOD PRODEST QUAM QUOD NOCET. In
things favored, what profits is more regarded
than what prejudices. Bac. Max. p. 57, in reg.
12.
IN FAVOREM VITAE. In favor of life.
sage; that is, on the journey to Palestine with
the general company or body of Crusaders. This
term was of frequent occurrence in the old law
of essoins, as a means of accounting for the absence of the party, and was distinguished from
simplex passagium, which meant that he was performing a pilgrimage to the Holy Land alone.
IN FAVOREM LIBERTATIS, ET INNOCENTI1E, OMNIA PRIESUMUNTUR. In favor of
life, liberty, and innocence, every presumption is
made. Lofft, 125.
IN GENERALIBUS VERSATUR ERROR. Error
dwells in general expressions. Pitman v. Hooper,
3 Sumn. 290, Fed. Cas. No. 11,186; Underwood
v. Carney, 1 Cush. (Mass.) 292.
IN FEODO. In fee. Bract. fol. 207; Fleta, lib. 2,
c. 64, § 15. Seisitus in feodo, seised in fee. Fleta,
lib. 3, c. 7, § 1.
IN GENERE. In kind; in the same genus or
class; the same in quantity and quality, but not
individually the same. In the Roman law, things
which may be given or restored in genere are distinguished from such as must be given or restored
in specie; that is, identically. Mackeld. Rom.
Law, § 161.
IN FAVOREM LIBERTATIS. In favor of liberty.
IN FICTIONE JURIS SEMPER )EQUITAS EXISTIT. In the fiction of law there is always equity; a legal fiction is always consistent with equity.
11 Coke 51a; Broom, Max. 127, 130.
IN GREMIO LEGIS. In the bosom of the law;
in the protection of the law; in abeyance. 1 Coke,
131a; T. Raym. 319; Hooper v. Farmers' Union
Warehouse Co., 21 Ala.App. 91, 105 So. 725, 726.
IN FIERI. In being made; in process of formation or development; hence, incomplete or inchoate. Legal proceedings are described as in fieri
until judgment is entered.
IN GROSS. In a large quantity or sum; without
division or particulars; by wholesale. Green v.
Taylor, 10 Fed.Cas.No.1,126. At large; not annexed to or dependent upon another thing. Common in gross is such as is neither appendant nor
appurtenant to land, but is annexed to a man's
person. 2 Bl.Comm. 34.
IN FINE. Lat. At the end. Used, in references,
to indicate that the passage cited is at the end of
a book, chapter, section, etc.
IN FORMA PAUPERIS. In the character or manner of a pauper. Describes permission given to a
poor person to sue without liability for costs.
IN HAC PARTE. In this behalf; on this side.
IN FORO. In a (or the) forum, court, or tribunal.
IN
words.
IN FORO CONSCIENTIIE. In the tribunal of
conscience; conscientiously; considered from a
moral, rather than a legal, point of view.
IN HIEREDES NON SOLENT TRANSIRE ACTIONES QUIE PCENALES EX MALEFICIO
SUNT. 2 Inst. 442. Penal actions arising from
anything of a criminal nature do not pass to heirs.
IN FORO CONTENTIOSO. In the forum of contention or litigation.
IN FORO ECCLESIASTICO. In an ecclesiastical
forum; in the ecclesiastical court. Fleta, lib. 2,
c. 57, § 13.
IN FORO SIECULARI. In a secular forum or
court. Fleta, lib. 2, c. 57, § 14; 1 Bl.Comm. 20.
IN FRAUDEM CREDITORUM. In fraud of creditors; with intent to defraud creditors. Inst. 1,
6, pr. 3.
IN FRAUDEM LEGIS. In fraud of the law. 3
Bl.Comm. 94. With the intent or view of evading
the law. Jackson v. Jackson, 1 Johns. (N. Y.) 424,
432.
IN FULL. Relating to the whole or full amount.,
as a receipt in full. Complete; giving all details. Bard v. Wood, 3 Mete. (Mass.) 75.
IN FULL LIFE. Continuing in both physical and
civil existence; that is, neither actually dead nor
civiliter mortuus.
IN FUTURO. In future; at a future time; the
opposite of in prcesenti. 2 Bl.Comm. 166, 175.
VERBA. In these words; in the same
IN HIS ENIM QU)E SUNT FAVORABILIA ANIQUAMVIS SUNT DAMNOSA REBUS, FIAT
ALIQUANDO EXTENTIO STATUTI. In things
that are favorable to the spirit, though injurious
to property, an extension of the statute should
sometimes be made. 10 Coke, 101.
IN HIS QUIE DE JURE COMMUNI OMNIBUS
CONCEDUNTUR, CONSUETUDO ALICUJUS
PATRIIE VEL LOCI NON EST ALLEGENDA. 11
Coke, 85. In those things which by common right
are conceded to all, the custom of a particular district or place is not to be alleged.
IN HOC. In this; in respect to this.
IN IIS QUIE SUNT MERZE FACULTATIS NUNQUAM PR4ESCRIBITUR. Prescription does not
run against a mere power or faculty to act. Tray.
Leg. Max.
IN IISDEM TERMINIS. In the same terms. 9
East, 487.
IN INDIVIDUO. In the distinct, identical, or individual form; in specie. Story, Bailm. § 97.
895
IN INFINITUM
IN INFINITUM. Infinitely; indefinitely. Imports indefinite succession or continuance.
IN INITIALIBUS. In the preliminaries. A term
in Scotch practice, applied to the preliminary examination of a witness as to the following points:
Whether he knows the parties, or bears ill will to
either of them, or has received any reward or
promise of reward for what he may say, or can
lose or gain by the cause, or has been told by any
person what to say. If the witness answer these
questions satisfactorily, he is then examined in
causa, in the cause. Bell, Dict. "Evidence."
IN INITIO. In or at the beginning. In initio litis,
at the beginning, or in the first stage of the suit.
Bract. fol. 400.
IN INTEGRUM. To the original or former state.
Calvin.
IN INVIDIAM. To excite a prejudice.
IN INVITUM. Against an unwilling party;
against one not assenting. A term applied to proceedings against an adverse party, to which he
does not consent.
IN IPSIS FAUCIBUS. In the very throat or entrance. In ipsis faucibus of a port, actually entering a port. 1 C.Rob.Adm. 233, 234.
IN ITINERE. In eyre; on a journey or circuit.
In old English law, the justices in itinere (or in
eyre) were those who made a circuit through the
kingdom once in seven years for the purposes of
trying causes. 3 Bl.Comm. 58. In course of transportation; on the way; not delivered to the vendee. In this sense the phrase is equivalent to
"in transitu."
IN JUDGMENT. In a court of justice; in a seat
of judgment. Lord Hale is called "one of the
greatest and best men who ever sat in judgment."
1 East, 306.
IN JUDICIIS, MINOR! ZETATI SUCCURRITUR.
In courts or judicial proceedings, infancy is aided
or favored. Jenk.Cent. 46, case 89.
IN JUDICIO. In Roman law. In the course of an
actual trial; before a judge, (judex.) A cause,
during its preparatory stages, conducted before
the prtor, was said to be in jure; in its second
stage, after it had been sent to a judex for trial,
it was said to be in judicio.
IN JUDICIO NON CREDITUR NISI JURATIS.
Cro.Car. 64. In a trial, credence is given only to
those who are sworn.
IN JURE. In law; according to law.
In the Roman practice, the procedure in an action was
divided into two stages. The first was said to be in jure;
it took place before the prtor, and included the formal
and introductory part and the settlement of questions of
law. The second stage was committed to the judex, and
comprised the investigation and trial of the facts; this
was said to be in judicio.
IN JURE ALTERIUS. In another's right. Hale,
Anal. § 26.
IN JURE, NON REMOTA CAUSA SED PROXIMA
SPECTATUR. Bac.Max. reg. 1. In law, the proximate, and not the remote, cause is regarded.
IN JURE PROPRIO. In one's own right. Hale,
Anal. § 26.
IN JUS VOCARE. To call, cite, or summon to
court. Inst. 4, 16, 3; Calvin. In jus vocando, summoning to court. 3 Bl.Comm. 279.
IN KIND. In the same kind, class, or genus. A
loan is returned "in kind" when not the identical
article, but one corresponding and equivalent to it,
is given to the lender. See In Genere.
The agreement that a collector of taxes was to
receive his commission "in kind" means the same
kind of funds in which the tax is collected; Wilson
v. State, 51 Ark. 213, 10 S.W. 491.
IN LAW. In the intendment, contemplation, or
inference of the law; implied or inferred by law;
existing in law or by force of law. See In Fact.
IN LECTO MORTALI. On the deathbed. Fleta,
lib. 5, c. 28, § 12.
IN LIBERAM ELEMOSINAM. In free alms.
Land given for a charitable motive was said to be
so given. See Frankalmoin.
IN LIEU OF. Instead of; in place of; in substitution of. State v. Escalade, 91 So. 135, 136, 150 La.
638; Joiner v. Joiner, 117 Miss. 507, 78 So. 369, 370.
IN LIMINE. On or at the threshold; at the very
beginning; preliminarily.
IN LITEM. For a suit; to the suit. Greenl.Ev. §
348.
IN LOCO. In place; in lieu; instead; in the place
or stead. Townsh.Pl. 38.
IN LOCO PARENTIS. In the place of a parent;
instead of a parent; charged, factitiously, with a
parent's rights, duties, and responsibilities. Wetherby v. Dixon, 19 Ves. 412; Brinkerhoff v. Merselis,
24 N.J.L. 683; Howard v. United States, D.C.Ky., 2
F.2d 170, 174; Meisner v. United States, D.C.Mo.,
295 F. 866, 868.
IN MAJORE SUMMA CONTINETUR MINOR. 5
Coke, 115. In the greater sum is contained the
less.
IN MAJOREM CAUTELAM. For greater security. 1 Strange, 105, arg.
IN MALAM PARTEM. In a bad sense, so as to
wear an evil appearance.
IN MALEFICIIS VOLUNTAS SPECTATUR, NON
EXITUS. In evil deeds regard must be had to the
intention, and not to the result. Dig. 48, 8, 14;
Broom, Max. 324.
IN MALEFICIO, RATIHABITIO MANDATO
COMPARATUR. In a case of malfeasance, ratification is equivalent to command. Dig. 50, 17,
152, 2.
896
IN OMNIBUS
IN NULLO EST ERRATUM. In nothing is there
error. The name of the common plea or joinder
in error, denying the existence of error in the record or proceedings; which is in the nature of a demurrer, and at once refers the matter of law arising thereon to the judgment of the court. 2 Tidd,
Pr. 1173; Booth v. Com., 7 Mete. (Mass.) 285, 287.
IN MAXIMA POTENTIA MINIMA LICENTIA.
In the greatest power there is the least freedom.
Hob. 159.
IN MEDIAS RES. Into the heart of the subject,
without preface or introduction.
IN MEDIO. Intermediate. A term applied, in
Scotch practice, to a fund held between parties
litigant.
IN OBSCURA VOLUNTATE MANUMITTENTIS,
FAVENDUM EST LIBERTATI. Where the expression of the will of one who seeks to manumit
a slave is ambiguous, liberty is to be favored.
Dig. 50, 17, 179.
IN MERCIBUS ILLICITIS NON SIT COMMERCIUM. There should be no commerce in illicit or
prohibited goods. 3 Kent, Comm. 262, note.
IN MERCY. To be in mercy is to be at the discretion of the king, lord, or judge in respect to the imposition of a fine or other punishment.
IN OBSCURIS, INSPICI SOLERE QUOD VERISIMILIUS EST, AUT QUOD PLERUMQUE FIERI
SOLET. In obscure cases, we usually look at
what is most probable, or what most commonly
happens. Dig. 50, 17, 114.
IN MISERICORDIA. The entry on the record
where a party was in mercy was, "Ideo in misericordia," etc. Sometimes "misericordia" means the
being quit of all amercements.
IN OBSCURIS, QUOD MINIMUM EST SEQUIMUR. In obscure or doubtful cases, we follow
that which is the least. Dig. 50, 17, 9; 2 Kent,
Comm. 557.
IN MITIORI SENSU. In the milder sense; in
the less aggravated acceptation.
In actions of slander, it was formerly the rule that, if the
words alleged would admit of two constructions, they
should be taken in the less injurious and defamatory sense,
or in mitiori sense,
IN ODIUM SPOLIATORIS. In hatred of a despoiler, robber, or wrong-doer. The Saratoga, 1
Gall. 174, Fed.Cas.No.12,355; Arthur v. The Cassius, 2 Story, 99, Fed.Cas.No.564. 1 Greenl.Ev. §
348.
IN MODUM ASS'S/E. In the manner or form
of an assize. Bract. fol. 183b. In modum juratce,
in manner of a jury. Id. fol. 181b.
IN ODIUM SPOLIATORIS OMNIA PRIESUMUNTUR. To the prejudice (in condemnation) of
a despoiler all things are presumed; every presumption is made against a wrongdoer. 1 Vern.
452.
IN MORA. In default; literally, in delay. In the
civil law, a borrower who omits or refuses to return the thing loaned at the proper time is said
to be in mora. Story, Bailm. §§ 254, 259.
In Scotch law. A creditor who has begun without completing diligence necessary for attaching
the property of his debtor is said to be in mora.
Bell.
IN MORTUA MANU. Property owned by religious societies was said to be held in mortua manu,
or in mortmain, since religious men were civiliter
mortui. 1 Bl.Comm. 479; Tayl.Gloss.
IN NOMINE DEI, AMEN. In the name of God,
Amen. A solemn introduction, anciently used in
wills and many other instruments. The translation is often used in wills at the present day.
IN OMNI RE NASCITUR RES QUZE IPSAM
REM EXTERMINAT. In everything there arises
a thing which destroys the thing itself. Everything contains the element of its own destruction.
2 Inst. 15.
IN NOTIS. In the notes.
IN NOVO CASU, NOVUM REMEDIUM APPONENDUM EST. 2 Inst. 3. A new remedy is to
be applied to a new case.
IN NUBIBUS. In the clouds; in abeyance; in custody of law. In nubibus, in mare, in terra, vel in
custodid legis, in the air, sea, or earth, or in the
custody of the law. Tayl.Gloss. In case of abeyance, the inheritance is figuratively said to rest in
nubibus, or in gremio legis.
IN NULLIUS BONIS. Among the goods or property of no person; belonging to no person, as
treasure-trove and wreck were anciently considered.
Black's Law Dictionary Revised 4th Ed.--57
IN OMNI ACTIONE UBI DUX CONCURRUNT
DISTRICTIONES, VIDELICET, IN REM ET IN
PERSONAM, ILLA DISTRICTIO TENENDA EST
QUPE MAGIS TIMETUR ET MAGIS LIGAT. In
every action where two distresses concur, that is,
in rem and in personam, that is to be chosen which
is most dreaded, and which binds most firmly.
Bract. fol. 372; Fleta, 1. 6, c. 14, § 28.
IN OMNIBUS. In all things; on all points. "A
case parallel in omnibus." 10 Mod. 104.
IN OMNIBUS CONTRACTIBUS, SIVE NOMINATIS SIVE INNOMINATIS, PERMUTATIO CONTINETUR. In all contracts, whether nominate or
innominate, an exchange [of value, i. e., a consideration] is implied. Gravin. lib. 2, § 12; 2 Bl.
Comm. 444, note.
IN OMNIBUS OBLIGATIONIBUS IN QUIBUS
DIES NON PONITUR, PRIESENTI DIE DEBETUR. In all obligations in which a date is not put,
the debt is due on the present day; the liability
accrues immediately. Dig. 50, 17, 14.
897
IN OMNIBUS
IN OMNIBUS [FERE] P(ENALIBUS JUDICIIS,
ET 2ETATL ET IMPRUDENTI2E SUCCURRITUR. In nearly all penal judgments, immaturity
of age and imbecility of mind are favored. Dig.
50, 17, 108; Broom, Max. 314.
IN OMNIBUS QUIDEM, MAXIME TAMEN IN
JURE, ZEQUITAS SPECTANDA SIT. In all
things, but especially in law, equity is to be regarded. Dig. 50, 17, 90; Story, Bailm. § 257.
IN PACATO SOLO. In a country which is at
peace.
IN PACE DEI ET REGIS. In the peace of God
and the king. Fleta, lib. 1, c. 31, § 6. Formal
words in old appeals of murder.
IN PAIS. This phrase, as applied to a legal transaction, primarily means that it has taken place
without legal proceedings. Thus a widow was
said to make a request in pais for her dower when
she simply applied to the heir without issuing a
writ. (Co. Litt. 32b.) So conveyances are divided into those by matter of record and those by
matter in pais. In some cases, however, "matters in pais" are opposed not only to "matters of
record," but also to "matters in writing," i. e.,
deeds, as where estoppel by deed is distinguished from estoppel by matter in pais. Id. 352a.)
Sweet. See, also, Pais.
IN PAIS, ESTOPPEL IN. An estoppel not arising from deed or record or written contract.
Steph.Pl. 197; Duke v. Griffith, 9 Utah 476, 35
P. 512. The doctrine is that a person may be precluded by his act or conduct or silence, when it is
his duty to speak, from asserting a right which
he otherwise would have had. Marshall v. Wilson, 175 Or. 506, 154 P.2d 547, 551. The effect of
a party's voluntary conduct whereby he is precluded from asserting rights as against another
person who has in good faith relied upon such conduct and has been led thereby to change his condition for the worse and who acquires some corresponding right of property or contract. Oswego
Falls Corporation v. City of Fulton, 265 N.Y.S. 436,
148 Misc. 170.
Elements or fundamentals of "estoppel in pals" include
admission, statement, or act inconsistent with claim afterwards asserted, National Match Co. v. Empire Storage &
Ice Co., 227 Mo.App. 1115, 58 S.W.2d 797; Peyrefitte v.
Union Homestead Ass'n, La.App., 185 So. 693, 697; change
of position to loss or injury of party claiming estoppel,
Personal Finance Co. of Providence v. Henley-Kimball Co.,
61 R.I. 402, 1 A.2d 121, 125, 117 A.L.R. 1476; Malloy v.
City of Chicago, 369 Ill. 97, 15 N.E.2d 861, 865; circumstances such that party estopped knew or should have
known facts to be otherwise or pretended to know facts
which he did not know, Briscoe v. O'Connor, 119 N.J.Eq.
378, 182 A. 855; false representation or concealment of
material facts, Pickens v. Maryland Casualty Co., 141 Neb.
105, 2 N.W.2d 593, 596; inducement to alter position, Haschenberger v. Dennis, 118 Neb. 411, 225 N.W. 25, 26, 63
A.L.R. 493; Wollenberger v. Hoover, 346 Ill. 511, 179 N.E.
42, 67; intention that false representation or concealment
be acted on, Malloy v. City of Chicago, 369 Ill. 97, 15
N.E.2d 861, 865; Peterson v. City of Parsons, 139 Kan. 701,
33 P.2d 715, 720; knowledge of facts, by party to be
estopped, Darling Stores v. Fidelity-Bankers Trust Co.,
178 Tenn. 165, 156 S.W.2d 419, 424; Peterson v. City of
Parsons, 139 Kan. 701, 33 P.2d 715, 720; lack of knowledge
or means of knowledge of party claiming estoppel, Triplex
Shoe Co. v. Rice & Hutchins, 17 Dei.Ch. 356, 152 A. 342,
350, 72 A.L.R. 932; Sinclair Refining Co. v. Jenkins Petroleum Process Co., C.C.A.Me., 99 F.2d 9, 13, 14; misleading
of one person by another person to his prejudice or injury,
Garmon v. Davis, 63 Ga.App. 815, 12 S.E.2d 209, 211; Current News Features v. Pulitzer Pub. Co., C.C.A.Mo., 81 F.2d
288, 292; prejudice or loss or injury to party claiming estoppel, City of St. Louis v. Mississippi River Fuel Corporation, D.C.Mo., 57 F.Supp. 549, 554; In re Bremer's Estate,
141 Neb. 251, 3 N.W.2d 411, 413, 414; reliance by one party
on belief induced by other party, Clover v. Peterson, 203
Minn. 337, 281 N.W. 275, 278; Strand v. State, 16 Wash.2d
107, 132 P.2d 1011, 1016.
Ratification is distinguishable in that the substance of
"ratification" is confirmation of the unauthorized act or
contract after it has been done or made, whereas substance
of "estoppel" is the principal's inducement to another to
act to his prejudice. Harvey v. J. P. Morgan & Co.,
Mun.Ct., 2 N.Y.S.2d 520, 531, 166 Misc. 455.
Silence when one should speak may be the basis of estoppel, Thomas v. Conyers, 198 N.C. 229, 151 S.E. 270, 273;
waiver is distinguishable in that it is not essential to waiver that the opposite party do anything on the strength of
the statement relied upon, Langley v. Norris, Tex.Civ.App.,
167 S.W.2d 603, 613; waiver designates act or consequence
of act of one person only; it is voluntary act and implies
abandonment of right or privilege. McDanels v. General
Ins. Co. of America, 1 Cal.App.2d 454, 36 P.2d 829, 832.
See, also, Equitable Estoppel.
IN PAPER. A term formerly applied to the proceedings in a cause before the record was made
up. 3 Bl.Comm. 406; 2 Burrows, 1098. Probably
from the circumstance of the record being always
on parchment. The opposite of "on record." 1
Burrows, 322.
IN PARI CAUSA. In an equal cause. In a cause
where the parties on each side have equal rights.
IN PARI CAUSA POSSESSOR POTIOR HABERL DEBET. In an equal cause he who has the
possession should be preferred. Dig. 50, 17, 128, 1.
IN PARI DELICTO. In equal fault; equally culpable or criminal; in a case of equal fault or
guilt. Rozell v. Vansyckle, 11 Wash. 79, 39 Pac.
270.
A person who is in part delicto with another differs from
a particeps criminis in this, that the former term always
includes the latter, but the latter does not always include
the former. 8 East, 381.
IN PARI DELICTO POTIOR EST CONDITIO
POSSIDENTIS, [DEFENDENTIS.] In a case of
equal or mutual fault [between two parties] the
condition of the party in possession [or defending] is the better one. 2 Burrows, 926.
Where each party is equally in fault, the law favors him
who is actually in possession. Broom, Max. 290, 729.
Where the fault is mutual, the law will leave the case as it
finds it. Story, Ag. § 195; Reaves Lumber Co. v. CainHurley Lumber Co., 152 Tenn. 339, 279 S.W. 257, 258.
IN PARI MATERIA. Upon the same matter or
subject. Statutes in pari materia are to be construed together. State v. Gerhardt, 145 Ind. 439,
44 N.E. 469, 33 L.R.A. 313.
IN PATIENDO. In suffering, permitting, or allowing.
IN PECTORE JUDICIS. In the breast of the
judge. Latch, 180. A phrase applied to a judgment.
898
IN PROPRIA
DT PEJOREM PARTEM. In the worst part; on
the worst side. Latch, 159, 160.
IN PLACE. In mining law, rock or mineralized
matter is "in place" when remaining as nature
placed it, that is, unsevered from the circumjacent
rock, or which is fixed solid and immovable in
the form of a vein or lode. Williams v. Gibson,
84 Ala. 228, 4 So. 350, 5 Am.St.Rep. 368.
IN PERPETUAM REI MEMORIAM. In perpetual memory of a matter; for preserving a record
of a matter. Applied to depositions taken in order to preserve the testimony of the deponent.
IN PERPETUITY. Endless duration; forever.
Central R. Co. of New Jersey v. New York Telephone Co., 101 N.J.L. 353, 128 A. 160, 161.
IN PERPETUAM REI TESTIMONIUM. In perpetual testimony of a matter; for the purpose of
declaring and settling a thing forever. 1 Bl.
Comm. 86.
IN PERSON. A party, plaintiff or defendant, who
sues out a writ or other process, or appears to
conduct his case in court himself, instead of
through a solicitor or counsel, is said to act and
appear in person.
IN PERSONAM, IN REM. In the Roman law,
from which they are taken, the expressions "in
rem" and "in personam" were always opposed to
one another, an act or proceeding in personam being one done or directed against or with reference
to a specific person, while an act or proceeding
in rem was one done or directed with reference
to no specific person, and consequently against or
with reference to all whom it might concern, or
"all the world." The phrases were especially applied to actions; an actio in personam being the
remedy where a claim against a specific person
arose out of an obligation, whether ex contractu
or ex maleficio, while an actio in rem was one
brought for the assertion of a right of property,
easement, status, etc., against one who denied or
infringed it. See Inst. 4, 6, 1; Gaius, 4, 1, 1-10.
From this use of the terms, they have come to be applied to signify the antithesis of "available against a particular person," and "available against the world at large."
Thus, Jura in personam are rights primarily available
against specific persons; Jura in rem, rights only available
against the world at large. Hook v. Hoffman, 147 P. 722,
727, 16 Ariz. 540; Beck v. Natalie Oil Co., 143 La. 153, 78
So. 430.
So a judgment or decree is said to be in rem when it
binds third persons. Such is the sentence of a court of
admiralty on a question of prize, or a decree of nullity or
dissolution of marriage, or a decree of a court in a foreign
country as to the status of a person domiciled there.
Lastly, the terms are sometimes used to signify that a
judicial proceeding operates on a thing or a person. Thus,
it is said of the court of chancery that it acts in personam,
and not in rem, meaning that its decrees operate by compelling defendants to do what they are ordered to do, and
not by producing the effect directly. Sweet. See Cross v.
Armstrong, 44 Ohio St. 613, 10 N.E. 160.
IN PLENA VITA. In full life. Yearb. P. 18 Hen.
VI. 2.
IN PLENO COMITATU. In full county court. 3
Bl.Comm. 36.
IN PLENO LUMINE. In public; in common
knowledge; in the light of day.
IN PCENALIBUS CAUSIS BENIGNIUS INTERPRETANDUM EST. In penal causes or cases,
the more favorable interpretation should be adopted. Dig. 50, 17, (197), 155, 2; Plowd. 86b, 124; 2
Hale, P.C. 365.
IN POSSE. In possibility; not in actual existence. See In Esse.
IN POTESTATE PARENTIS. In the power of a
parent. Inst. 1, 8, pr.; Id. 1, 9; 2 Bl.Comm. 498.
IN PRAEMISSORUM FIDEM. In confirmation or
attestation of the premises. A notarial phrase.
IN PRAEPARATORIIS AD JUDICIUM FAVETUR
ACTORI. 2 Inst. 57. In things preceding judgment the plaintiff is favored.
IN PRIESENTI. At the present time. 2 Bl.
Comm. 166. Used in opposition to in futuro. Van
Wyck v. Knevals, 1 S.Ct. 336, 106 U.S. 360, 27 L.
Ed. 201.
IN PRIESENTIA MAJOR'S POTESTATIS, MINOR POTESTAS CESSAT. In the presence of the
superior power, the inferior power - ceases. Jenk.
Cent. 214, c. 53. The less authority is merged in
the greater. Broom, Max. 111.
IN PRENDER. L. Fr. In taking. A term applied to such incorporeal hereditaments as a party
entitled to them was to take for himself; such
as common. 2 Steph.Comm. 23; 3 Bl.Comm. 15.
See In Render.
IN PRETIO EMPTIONIS ET VENDITIONIS, NAT1URALITER LICET CONTRAHENTIBUS SE
CIRCUMVENIRE. In the price of buying and
selling, it is naturally allowed to the contracting
parties to overreach each other. 1 Story, Cont.
606.
IN PRIMIS. In the first place. A phrase used in
argument.
Judgment in Personam
See that title.
IN PRINCIPIO. At the beginning.
IN PERSONAM ACTIO EST, QUA CUM EO AGIMUS QUI OBLIGATUS EST NOBIS AD FACIENDUM ALIQUID VEL DANDUM. The action in
personam is that by which we sue him who is
under obligation to us to do something or give
something. Dig. 44, 7, 25; Bract. 101b.
IN PROPRIA CAUSA NEMO JUDEX. No one
can be judge in his own cause. 12 Code, 13.
IN PIOS USUS. For pious uses; for religious
purposes. 2 Bl.Comm. 505.
IN PROPRIA PERSONA. In one's own proper
person.
IN PROMPTU. In readiness; at hand. Usually
written impromptu.
899
IN PROPRIA
It is a rule in pleading that pleas to the jurisdiction of
the court must be plead in propria persona, because if
pleaded by attorney they admit the jurisdiction, as an attorney is an officer of the court, and he is presumed to
plead after having obtained leave, which admits the jurisdiction. Lawes, PI. 91.
In some jurisdictions, however, this rule is no longer recognized. 1 C.J. 255.
IN QUO QUIS DELINQUIT, IN EO DE JURE
EST PUNIENDUS. In whatever thing one offends, in that is he rightfully to be punished. Co.
Litt. 233b; Wing. Max. 204, max. 58. The punishment shall have relation to the nature of the offense.
IN RE. In the affair; in the matter of; concerning; re. This is the usual method of entitling a
judicial proceeding in which there are not adversary parties, but merely some res concerning
which judicial action is to be taken, such as a
bankrupt's estate, an estate in the probate court,
a proposed public highway, etc. It is also sometimes used as a designation of a proceeding where
one party makes an application on his own behalf, but such proceedings are more usually entitled "Ex parte
."
IN RE COMMUNI MELIOR EST CONDITIO
PROHIBENTIS. In common property the condition of the one prohibiting is the better. In other words, either co-owner has a right of veto
against the acts of the other. Gulf Refining Co.
of Louisiana v. Carroll, 145 La. 299, 82 So. 277, 279.
IN RE COMMUNI NEMINEM DOMINORUM
JURE FACERE QUICQUAM, INVITO ALTERO,
POSSE. One co-proprietor can exercise no authority over the common property against the will
of the other. Dig. 10, 3, 28. In other words, either co-owner has a right of veto against the acts
of the other. Gulf Refining Co. of Louisiana v.
Carroll, 145 La. 299, 82 So. 277, 279.
IN RE COMMUNI POTIOR EST CONDITIO PROHIBENTIS. In a partnership the condition of one
who forbids is the more favorable.
IN RE DUBIA, BENIGNIOREM INTERPRETATIONEM SEQUI, NON MINUS JUSTIUS EST
QUAM TUTIUS. In a doubtful matter, to follow
the more liberal interpretation is not less the
juster than the safer course. Dig. 50, 17, 192, 1.
IN RE DUBIA, MAGIS INFICIATIO QUAM AFFIRMATIO INTELLIGENDA. In a doubtful matter, the denial or negative is to be understood, [or
regarded,] rather than the affirmative. Godb. 37.
IN RE LUPANARI, TESTES LUPANARES ADMITTENT1UR. In a matter concerning a brothel,
prostitutes are admitted as witnesses. Van Epps
v. Van Epps, 6 Barb. (N.Y.) 320, 324.
IN RE PARI POTIOREM CAUSAM ESSE PROHIBENTIS CONSTAT. In a thing equally shared [by several] it is clear that the party refusing
[to permit the use of it] has the better cause.
Dig. 10, 3, 28. A maxim applied to partnerships,
where one partner has a right to withhold his assent to the acts of his copartner. 3 Kent.Comm.
45.
.
IN RE PROPRIA INIQUUM ADMODUM EST ALICUI LICENTIAM TRIBUERE SENTENTIJE.
It is extremely unjust that any one should be
judge in his own cause.
IN REBUS (Lat.) In things, cases, or matters.
IN REBUS MANIFESTIS, ERRAT QUI AUCTORITATES LEGUM ALLEGAT; QUIA PERSPICUA VERA NON SUNT PROBANDA. In
clear cases, he mistakes who cites legal authorities; for obvious truths are not to be proved. 5
Coke, 67a. Applied to cases too plain to require
the support of authority; "because," says the report, "he who endeavors to prove them obscures
them."
IN REBUS QU1E SUNT FAVORABILIA ANIMA,
QUAMVIS SUNT DAMNOSA REBUS, FIAT ALIQUANDO EXTENSIO STATUTI. 10 Coke, 101.
In things that are favorable to the spirit, though
injurious to things, an extension of a statute
should sometimes be made.
IN REGARD TO. Concerning; relating to; in
respect of; with respect to; about. Hart v. Hart,
181 Iowa 527, 164 N.W. 849, 850.
IN REM. A technical term used to designate proceedings or actions instituted against the thing,
in contradistinction to personal actions, which are
said to be in personam. See In Personam.
It is true that, In a strict sense, a proceeding in rem is
one taken directly against property, and has for its object
the disposition of property, without reference to the title
of individual claimants; but, in a larger and more general
sense, the terms are applied to actions between parties,
where the direct object is to reach and dispose of property
owned by them, or of some interest therein. Such are
cases commenced by attachment against the property of
debtors, or instituted to partition real estate, foreclose a
mortgage, or enforce a lien. So far as they affect property
in this state, they are substantially proceedings in rem In
the broader sense which we have mentioned. Pennoyer v.
Neff, 95 U.S. 734, 24 L. Ed. 565; Continental Gin Co. v.
Arnold, 66 Oki. 132, 167 P. 613, 617, L.R.A.1918B, 511.
In the strict sense of the term, a proceeding "In rem" is
one which is taken directly against property or one which
is brought to enforce a right in the thing itself. Austin
v. Royal League, 316 Ill. 188, 147 N.E. 106, 109.
A divorce suit is a "suit in rem," the essential characteristic of which is found in the power of the state through
the decree or judgment of its court to dispose of the subject-matter of the suit, the res, in accordance with the object of the suit, whether that subject-matter be physical
property or the status of one or both of the parties litigant,
which decree operates immediately and absolutely upoh
the status of the suitor which is the res in the suit without the necessity of execution, attachment, or contempt
proceedings to enforce it. Lister v. Lister, 86 N.J.Eq. 30,
97 A. 170, 173.
A proceeding "in rem" is in effect a proceeding against
the owner, as well as a proceeding against the goods, for it
is his breach of the law which has to be proven to establish the forfeiture, and it is his property which is sought
to be forfeited. Mack v. Westbrook, 148 Ga. 690, 98 S.E.
339, 343.
Judgment in rem. See that title.
Quasi in rem. A term applied to proceedings
which are not strictly and purely in rem, but are
brought against the defendant personally, though
the real object is to deal with particular property
or subject property to the discharge of claims asserted; for example, foreign attachment, or pro-
900
IN TERROREM
that is, it is joint and several. Henderson v.
Wadsworth, 6 S.Ct. 140, 115 U.S. 264, 29 L.Ed.
377. Possession in solidum is exclusive possession.
ceedings to foreclose a mortgage, remove a cloud
from title, or effect a partition. Freeman v. Alderson, 7 S.Ct. 165, 119 U.S. 187, 30 L.Ed. 372; Hill
v. Henry, 66 N.J.Eq. 150, 57 A. 555.
When several persons obligate themselves to the obligee
by the terms "in solido," or use any other expressions
which clearly show that they intend that each one shall be
separately bound to perform the whole of the obligation,
it is called an "obligation in solido" on the part of the obligors. Civ.Code La. art. 2082.
IN REM ACTIO EST PER QUAM REM NOSTRAM QUIE AB ALIO POSSIDETUR PETIMUS,
ET SEMPER ADVERSUS EUM EST QUI REM
POSSIDET. The action in rem is that by which
we seek our property which is possessed by another, and is always against him who possesses
the property. Dig. 44, 7, 25; Bract. fol. 102.
IN SOLIDUM. For the whole. Si plures sint
fide jussores, quotquot erunt numero, singuli in
solidum tenentur, if there be several sureties,
however numerous they may be, they are individually bound for the whole debt. Inst. 3, 21, 4.
In parte sive in solidum, for a part or for the
whole. Id. 4, 1, 16. See Id. 4, 6, 20; Id. 4, 7, 2.
IN RENDER. A thing is said to lie in render
when it must be rendered or given by the tenant;
as rent. It is said to lie in prender when it consists in the right in the lord or other person to
take something. See In Prender.
IN SOLO. In the soil or ground. In solo alieno,
in another's ground. In solo proprio, in one's
own ground. 2 Steph.Comm. 20.
IN REPUBLICA MAXIME CONSERVANDA
SUNT JURA BELLI. In a state the laws of war
are to be especially upheld. 2 Inst. 58.
IN RERUM NATURA. In the nature of things;
in the realm of actuality; in existence. In a dilatory plea, an allegation that the plaintiff is not
in rerum natura is equivalent to averring that the
person named is fictitious. 3 Bl.Comm. 301.
In civil law, this phrase is applied to things.
Inst. 2, 20, 7. It is a broader term than in rebus
humanis: g. before quickening, an infant is in
rerum natura, but not in rebus humanis; after
quickening, he is in rebus humanis as well as in
rerum natura. Calvinus, Lex.
IN SPECIE. Specific; specifically. Thus, to decree performance in specie is to decree specific
performance. In kind; in the same or like form.
A thing is said to exist in specie when it retains
its existence as a distinct individual of a particular class.
IN STATU QUO. In the condition in which it
was. See Status Quo. McReynolds v. Harrigfeld,
26 Idaho 26, 140 P. 1096, 1098.
IN RESTITUTIONEM, NON IN PCENAM HIERES SUCCEDIT. The heir succeeds to the restitution, not to the penalty. An heir may be compelled to make restitution of a sum unlawfully appropriated by the ancestor, but is not answerable
criminally, as for a penalty. 2 Inst. 198.
IN STIPULATIONIBUS CUM QUIERITUR QUID
ACTUM SIT VERBA CONTRA STIPULATOREM
INTERPRETANDA SUNT. In the construction
of agreements words are interpreted against the
person using them. Thus, the construction of the
stipulatio is against the stipulator, and the construction of the promissio against the promissor.
Dig. 45, 1, 38, 18; Broom, Max. 599.
IN RESTITUTIONIBUS BENIGNISSIMA INTERPRETATIO FACIENDA EST. Co.Litt. 112. The
most benignant interpretation is to be made in
restitutions.
IN STIPULATIONIBUS, ID TEMPUS SPECTATOR QUO CONTRAHIMUS. In stipulations, the
time when we contract is regarded. Dig. 50, 17,
144, 1.
IN SATISFACTIONIBUS NON PERMITTITUR
AMPLIUS FIERI QUAM SEMEL FACTUM EST.
In payments, more must not be received than has
been received once for all. 9 Coke, 53.
IN STIRPES. In the law of intestate succession.
According to the roots or stocks; by representation; as distinguished from succession per capita.
See Per Stirpes; Per Capita.
IN SCRINIO JUDICIS. In the writing-case of the
judge; among the judge's papers. "That is a
thing that rests in scrinio judicis, and does not appear in the body of the decree." Hardr. 51.
IN SUBSIDIUM. In aid.
IN SUO QUISQUE NEGOTIO HEBETIOR EST
QUAM IN ALIENO. Every one is more dull in
his own business than in another's.
IN SEPARALI. In several; in severalty. Fleta,
lib. 2, c. 54, § 20.
IN TALI CASU EDITUM ET PROVISUM. See
In Casu Proviso.
IN SIMILI MATERIA. Dealing with the same or
a kindred subject-matter.
IN TANTUM. In so much; so much; so far; so
greatly. Reg. Orig. 97, 106.
IN SIMPLICI PEREGRINATIONE. In simple
pilgrimage. Bract. fol. 338. A phrase in the old
law of essoins. See In Generali Passagio.
IN TERMINIS TERMINANTIBUS. In terms of
determination; exactly in point. 11 Coke, 40b.
In express or determinate terms. 1 Leon. 93.
IN SOLIDO. In the civil law. For the whole;
as a whole. An obligation in solido is one where
each of the several obligors is liable for the whole;
IN TERROREM. In terror or warning; by way
of threat. Applied to legacies given upon condition that the recipient shall not dispute the valid-
901
IN TERROREM
ity or the dispositions of the will; such a condition being usually regarded as a mere threat.
IN UTROQUE JURE. In both laws;
IN TERROREM POPULI. Lat. To the terror of
the people. A technical phrase necessary in indictments for riots. 4 Car. & P. 373.
IN VACUO. Without object; without concomit-
e., the
civil and canon law.
IN TESTAMENTIS PLENIUS TESTATORIS INTENTIONEM SCRUTAMUR. In wills we more
especially seek out the intention of the testator.
3 Bulst. 103; Broom, Max. 555.
IN TESTAMENTIS PLENIUS VOLUNTATES
TESTANTIUM INTERPRETANTUR. Dig. 50, 17,
12. In wills the intention of testators is more especially regarded. "That is to say," says Mr.
Broom, (Max., 568,) "a will will receive a more
liberal construction than its strict meaning, if
alone considered, would permit."
IN TESTAMENTIS RATIO TACITA NON DEBET CONSIDERARI, SED VERBA SOLUM
SPECTARI DEBENT; ADEO PER DIVINATIONEM MENTIS A VERB'S RECEDERE DURUM
EST. In wills an unexpressed meaning ought not
ants or coherence.
IN VADIO. In gage or pledge. 2 Bl.Comm. 157.
IN VENTRE SA MERE. L. Fr. In his mother's
womb; spoken of an unborn child.
IN VERAM QUANTITATEM FIDEJUSSOR TENEATUR, NISI PRO CERTA QUANTITATE ACCESSIT. Let the surety be holden for the true
quantity, unless he agree for a certain quantity,
Bean v. Parker, 17 Mass. 597.
IN VERBIS, NON VERBA, SED RES ET RATIO,
QUIERENDA EST. Jenk. Cent. 132. In the construction of words, not the mere words, but the
thing and the meaning, are to be inquired after.
IN VINCULIS. In chains; in actual custody.
Gilb. Forum Rom. 97.
to be considered, but the words alone ought to be
looked to; so hard is it to recede from the words
by guessing at the intention.
Applied also, figuratively, to the condition of a
person who is compelled to submit to terms which
oppression and his necessities impose on him. 1
Story, Eq.Jur. § 302.
IN TESTIMONIUM. Lat. In witness; in evi-
IN VIRIDI OBSERVANTIA. Present to the
dence whereof.
minds of men, and in full force and operation.
IN THE FIELD. Any place, on land or water,
IN VOCIBUS VIDENDUM NON A QUO SED AD
QUID SUMATUR. In discourses, it is to be con-
apart from permanent cantonments or fortifications where military operations are being conducted. Hines v. Mikell, C.C.A., 259 F. 28, 30.
IN THE PEACE OF THE STATE. In definition
of murder as unlawful and felonious killing of human being "in the peace of the state," the quoted
phrase means the same as "in the king's peace"
under the English common law, and negatives the
idea that deceased was actually engaged in waging war against the state. State v. Corneille, 153
La. 929, 96 So. 813, 817.
precisely the same words; word for word.
the concluding clause in deeds: "In witness whereof the said parties have hereunto set their hands,"
etc. A translation of the Latin phrase "in cujus
rei testimonium."
INADEQUATE. Insufficient; disproportionate;
lacking in effectiveness or in conformity to a prescribed standard or measure.
S.W.2d 158, 163.
IN TOTO. In the whole; wholly; completely; as
the award is void in toto.
INADEQUATE DAMAGES. See Damages.
IN TOTO ET PARS CONTINETUR. In the whole
INADEQUATE PRICE. A term applied to indi-
the part also is contained. Dig. 50, 17, 113.
IN TRADITIONIBUS SCRIPTORUM, NON QUOD
DICTUM EST, SED QUOD GESTUM EST, INSPICITUR. In the delivery of writings, not what
is said, but what is done, is looked to. 9 Coke,
137a.
IN TRAJECTU. In the passage over; on the voyage over. Sir William Scott, 3 C.Rob.Adm. 141.
IN TRANSITU. In transit; on the way or pas-
Am.St.Rep. 65. On the voyage. 1 C.Rob.Adm.
338.
IN WITNESS WHEREOF. The initial words of
INADEQUATE CONSIDERATION. One not adequate or equal in value to the thing conveyed.
Farrell v. Third Nat. Bank, 20 Tenn.App. 540, 101
IN TOTIDEM VERBIS. In so many words; in
sage; while passing from one person or place to
another. 2 Kent.Comm. 540-552. Amory Mfg.
Co. v. Gulf, etc., R. Co., 89 Tex. 419, 37 S.W. 856, 59
sidered not from what, but to what, it is advanced.
Ellesmere, Postn. 62.
cate the want of a sufficient consideration for a
thing sold, or such a price as would ordinarily be
entirely incommensurate with its intrinsic value.
State v. Purcell, 131 Mo. 312, 33 S.W. 13.
INADEQUATE REMEDY AT LAW. Within the
meaning of the rule that equity will not entertain
a suit if there is an adequate remedy at law, this
does not mean that there must be a failure to collect money or damages at law, but the remedy is
considered inadequate if it is, in its nature and
character, unfitted or not adapted to the end in
view, as, for instance, when the relief sought is
preventive rather than compensatory. Cruickshank v. Bidwell, 20 S.Ct. 280, 176 U.S. 73, 44 L.
Ed. 377.
902
INCERTIE
Legal incapacity
This expression implies that the person in view has the
right vested in him, but is prevented by some impediment
from exercising it; as in the case of minors, femes covert,
lunatics, etc. An administrator has no right until letters
are issued to him. Therefore he cannot benefit (as respects
the time before obtaining letters) by a saving clause in a
statute of limitations in favor of persons under a legal incapacity to sue. Cates v. Brattle, 1 Root (Conn.) 187.
INADMISSIBLE. That which, under the established rules of law, cannot be admitted or received; e. g., parol evidence to contradict a written
contract.
INADVERTENCE. Heedlessness; lack of attention; want of care; carelessness; failure of a person to pay careful and prudent attention to the
progress of a negotiation or a proceeding in court
by which his rights may be affected. Used chiefly
in statutory enumerations of the grounds on which
a judgment or decree may be vacated or set aside;
as, "mistake, inadvertence, surprise, or excusable
neglect." Skinner v. Terry, 107 N.C. 103, 12 S.E.
118. State ex rel. Regis v. District Court of Second Judicial Dist. in and for Silver Bow County,
102 Mont. 74, 55 P.2d 1295, 1298.
Total incapacity
In Workmen's Compensation Acts, such disqualification
from performing the usual tasks of a workman that he cannot procure and retain employment. Western Indemnity
Co. v. Corder, Tex.Civ.App., 249 S.W. 316, 317; Georgia
Casualty Co. v. Ginn, Tex.Civ.App., 272 S.W. 601, 603;
Moore v. Peet Bros. Mfg. Co., 99 Kan. 443, 162 P. 295, 296.
Incapacity for work is total not only so long as the
injured employee is unable to do any work of any character, but also while he remains unable, as a result of his
injury, either to resume his former occupation or to procure remunerative employment at a different occupation
suitable to his impaired capacity. Such period of total incapacity may be followed by a period of partial incapacity,
during which the injured employee is able both to procure
and to perform work at some occupation suitable to his
then-existing capacity, but less remunerative than the work
in which he was engaged at the time of his injury. That
situation constitutes "partial incapacity." Austin Bros.
Bridge Co. v. Whitmire, 121 S.E. 345, 346, 31 Ga.App. 560.
Synonymous with "total disability." Consolidation Coal
Co. v. Crislip, 289 S.W. 270, 273, 217 Ky. 371. See Disability.
INIEDIFICATIO. Lat. In the civil law. Building on another's land with one's own materials,
or on one's own land with another's materials.
INALIENABLE. Not subject to alienation; the
characteristic of those things which cannot be
bought or sold or transferred from one person to
another, such as rivers and public highways, and
certain personal rights; e. g., liberty.
INAUGURATION. The act of installing or inducting into office with formal ceremonies, as the
coronation of a sovereign, the inauguration of a
president or governor, or the consecration of a
prelate. A word applied by the Romans to the
ceremony of dedicating a temple, or raising a man
to the priesthood, after the augurs had been consulted.
INCARCERATION. Imprisonment; confinement
in a jail or penitentiary. See Imprisonment.
This term is seldom used in law, though found occasionally in statutes. When so used, it appears always to mean
confinement by competent public authority or under due
legal process, whereas "imprisonment" may be effected by
a private person without warrant of law. and if unjustifiable is called "false imprisonment." No occurrence of
such a phrase as "false incarceration" has been noted.
INBLAURA. In old records. Profit or product of
ground. Cowell.
INCASTELLARE. To make a building serve as a
castle. Jacob.
INBOARD. In maritime law, and particularly
with reference to the stowage of cargo, this term
is contrasted with "outboard." It does not necessarily mean under deck, but is applied to a cargo
so piled or stowed that it does not project over
the "board" (side or rail) of the vessel. Allen v.
St. Louis Ins. Co., 46 N.Y.Super.Ct. 181.
INCAUSTUM, or ENCAUSTUM. Ink. Fleta, 1,
2, c. 27, § 5.
INCAUTE FACTUM PRO NON FACTO RABETUB. A thing done unwarily (or unadvisedly)
will be taken as not done. Dig. 28, 4, 1.
INCENDIARY. A house-burner; one guilty of
arson; one who maliciously and willfully sets another person's building on fire.
INBORH. In Saxon law. A security, pledge, or
hypotheca, consisting of the chattels of a person
unable to obtain a personal "borg," or surety.
INCENDIUM /ERE ALIENO NON EXUIT DEBITOREM. Cod. 4, 2, 11. A fire does not release a
debtor from his debt.
INBOROW. A forecourt or gate-house. A certain barony was inborow and outborow between
England and Scotland. Cowell.
INBOUND COMMON. An uninclosed common,
marked out, however, by boundaries.
INC. Incorporated. Goldberg, Bowen & Co. v.
Dimick, 169 Cal. 187, 146 P. 672, 673; Norwood
Bldg. v. Jackson, • Tex.Civ.App., 175 S.W.2d 262,
265.
INCAPACITY. Want of capacity; want of power or ability to take or dispose; want of legal ability to act. Ellicott v. Ellicott, 90 Md. 321, 45 A.
183, 48 L.R.A. 58. Inefficiency; incompetency;
lack of adequate power. Travelers' Ins. Co. v.
Richmond, Tex.Com.App., 291 S.W. 1085, 1087.
INCEPTION. Commencement; opening; initiation. The beginning of the operation of a contract
or will, or of a note, mortgage, lien, etc.; the beginning of a cause or suit in court. Oriental Hotel
Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 L.R.A.
765, 53 Am.St.Rep. 790.
INCERTA PRO NULLIS HABENTUR. Uncertain things are held for nothing. Da y .Ir.K.B. 33.
INCERTA QUANTITAS VITIAT ACTUM. 1
Rolle R. 465. An uncertain quantity vitiates the
act.
INCERTIE PERSONAE. Uncertain persons, as
posthumous heirs, a corporation, the poor, a ju-
903
INCEST
INCHARTARE. To give, or grant, and assure
anything by a written instrument.
ristic person, or persons who cannot be ascertained until after the execution of a will. Sohm.Inst.
Rom.L.104, 458.
INCHOATE. Imperfect; partial; unfinished; begun, but not completed; as a contract not executed by all the parties. Good v. Crist, 23 Ohio App.
484, 156 N.E. 146, 148. Pacific Freight Lines v.
Pioneer Express Co., 39 Cal.App.2d 609, 103 P.2d
1056, 1058.
INCEST. The crime of sexual intercourse or cohabitation between a man and woman who are related to each other within the degrees wherein
marriage is prohibited by law. People v. Stratton, 141 Cal. 604, 75 P. 166. Signs v. State, 35 Okl.
Cr. 340, 250 P. 938, 940.
INCESTUOSI. Those offspring incestuously begotten. Mack.Rom.L. § 143.
INCESTUOUS ADULTERY. The elements of
this offense are that defendant, being married to
one person, has had sexual intercourse with another related to the defendant within the prohibited degrees. Cook v. State, 11 Ga. 53, 56 Am.Dec.
410.
INCESTUOUS BASTARDS. Incestuous bastards
are those who are produced by the illegal connection of two persons who are relations within the
degrees prohibited by law. Civ.Code La. art. 183.
INCH. A measure of length, containing onetwelfth part of a foot; originally supposed equal
to three barleycorns.
Inch of candle. A mode of sale at one time
in use among merchants. A notice is first given
upon the exchange, or other public place, as to the
time of sale. The goods to be sold are divided
into lots, printed papers of which, and the conditions of sale, are published. When the sale takes
place, a small piece of candle, about an inch long
is kept burning, and the last bidder, when the
candle goes out, is entitled to the lot or parcel for
which he bids. Wharton.
Inch of water. The unit for the measurement of a volume of water or of hydraulic power,
being the quantity of water which, under a given
constant head or pressure, will escape through an
orifice one inch square (or a circular orifice having a diameter of one inch) in a vertical plane.
Jackson Milling Co. v. Chandos, 82 Wis. 437, 52 N.
W. 759.
Miner's inch. The quantity of water which will
escape from a ditch or reservoir through an orifice in its side one inch square, the center of the
orifice being six inches below the constant level of
the water, equivalent to about 1.6 cubic feet of
water per minute. Defined by statute in Colorado
as "an inch-square orifice under a five-inch pressure, a five-inch pressure being from the top of the
orifice of the box put into the banks of the ditch
to the surface of water." Mills' Ann.St.Colo. §
4643 (Comp.Laws 1921, § 4111). See Longmire v.
Smith, 26 Wash. 439, 67 P. 246, 58 L.R.A. 308.
The standard miner's inch of water, as fixed by
1
St.Ca1.1901, p. 660, is the equivalent of 1 /2 cubic
feet of water per minute measured through any
aperture or orifice, making it equivalent to onefortieth of a second foot. Lillis v. Silver Creek &
Panoche Land & Water Co., 32 Cal.App. 668, 163
P. 1040, 1043.
INCHOATE DOWER. A wife's interest in the
lands of her husband during his life, which may
become a right of dower upon his death. Smith
v. Shaw, 150 Mass. 297, 22 N.E. 924.
A contingent claim or possibility of acquiring dower by
outliving husband and arises, not out of contract, but as
an institution of law constituting a mere chose in action
incapable of transfer by separate grant but susceptible
of extinguishment, which is effected by wife joining with
husband in deed, which operates as release or satisfaction
of interest and not as conveyance. Auerbach v. Chase Nat.
Bank of City of New York, 296 N.Y.S. 487, 489, 251 App.
Div. 543.
INCHOATE INSTRUMENT. Instruments which
the law requires to be registered or recorded are
said to be "inchoate" prior to registration, in that
they are then good only between the parties and
privies and as to persons having notice. Wilkins
v. McCorkle, 112 Tenn. 688, 80 S.W. 834.
INCHOATE INTEREST. An interest in real estate which is not a present interest, but which
may ripen into a vested estate, if not barred, e