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BLACK'S LAW

DICTIONARY®

Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern By HENRY CAMPBELL BLACK, M. A.

SIXTH EDITION BY THE PUBLISHER'S EDITORIAL STAFF Coauthors JOSEPH R. NOLAN Associate Justice, Massachusetts Supreme Judicial Court

and

JACQUELINE M. NOLAN-HALEY Associate Clinical Professor, Fordham University School of Law

Contributing Authors M. J. CONNOllY Associate Professor (Linguistics), College of Arts & Sciences, Boston College

STEPHEN C. HICKS Professor of Law, Suffolk University Law School, Boston, MA

MARTINA N. All BRANDI Certified Public Accountant, Bolton, MA

ST. PAUL, MINN. WEST PUBLISHING CO.

1990

"BLACK'S LAW DICTIONARY" is a registered trademark of West Publishing Co. COPYRIGHT COPYRIGHT

Registered in U.S. Patent and Trademark Office.

@ @

1891, 1910, 1933, 1951, 1957, 1968, 1979 WEST PUBLISHING CO. 1990 By WEST PUBLISHING CO. 50 West Kellogg Boulevard P.O. Box 64526 St. Paul, Mn 55164-0526

Library of Congress Cataloging-in-Publication Data Black, Henry Campbell,

1850-1927.

[Law dictionary] Black's law dictionary

by Henry Campbell Black. - 6th ed.

the publisher's editorial staff; contributing authors, Joseph R. Nolan ... let al.] p.

cm.

ISBN 0-314-76271-X 1. Law-United States-Dictionaries. I. Nolan, Joseph R. KF156.B53

2. Law-Dictionaries.

II. Title.

1990

340' .03-dc20

90-36225 CIP

ISBN

0-314-76271-X

ISBN

0-314-77165-4 deluxe

Black's Law Dictionary 6th Ed. 2nd Reprint-1990

PREFACE

This new Sixth Edition starts a second century for Black's Law Dictionary-the standard authority for legal definitions since 1891. Nearly every area of the law has undergone change and develop ment since publication of the Fifth· Edition in 1979.

This period has

seen particular change and expansion in such areas as tax, finance, commercial transactions, debtor-creditor relations, tort liability, em ployment, health care, environment, and criminal law.

Congress and

the states continue to legislate new rights and remedies;

the courts

continue to define and redefine legal terms; the states are increasingly adopting uniform or model laws and rules; and new causes of action and legal concepts continue unabated. The vocabulary of the law has likewise continued to change and expand to keep pace.

This has necessitated not only a significant

expansion of new words and terms for inclusion in this Sixth Edition, but also a reexamination of all existing entries for currentness of legal usage. Indicative of this growth is that this new edition required the addition or revision of over 5,000 legal words and terms.

Thousands of

other changes were required to update or supplement supporting cita tions. As with prior editions, considerable effort has been made in this Sixth Edition to provide more than basic definitions of legal words and terms.

In those instances where traditional legal concepts and doc

trines have over the years been either superseded, modified or supple mented by court decisions or legislation, such developments and changes are fully reflected. Additionally, because so many areas of law and practice are now governed by uniform or model acts and rules, such major sources of law as the Uniform Commercial Code, Restatements of the Law, Model Penal Code, and Federal Rules are fully reflected. Similarly, the growth and importance of federal laws, with their impact on matters that were traditionally state or local in nature, is evidenced with a considerable number of new entries and citations covering federal acts, agencies, departments and courts. Likewise, the ever expanding importance of financial terminology has necessitated the inclusion of numerous new tax, finance, and accounting terms. Examples of word usages, with citations, have been added through out to illustrate how specific terms are used or applied in various legal contexts. iii

PREFACE Because of the inter-relationship of so many legal words and terms, the number of internal cross-references has been greatly increased. The number of abbreviation entries has also been substantially expand ed, as has the Table of Abbreviations. A number of changes have been made to the pronunciation guides to make this feature even more helpful. A comprehensive explanation of these guides is set forth on pages vii-xiv with a shorter pronuncia tion Key appearing on the inside front cover. New and revised words and terms for this Sixth Edition were prepared by Joseph R. Nolan, Associate Justice, Massachusetts Su preme Judicial Court, and Jacqueline M. Nolan-Haley of Fordham University School of Law.

The pronunciation transcription system and

guides were prepared by M.J. Connolly, Associate Professor of Linguis tics, Boston College.

Words and terms of the United Kingdom were

revised and updated by Professor Stephen C. Hicks, Suffolk University Law School.

Tax and accounting terms were updated and expanded by

Martina N. Alibrandi, Certified Public Accountant, Bolton, Massachu setts. A Final Word of Caution The language of the law is ever-changing as the courts, Congress, state legislatures, and administrative agencies continue to define, rede fine and expand legal words and terms.

Furthermore, many legal

terms are subject to variations from state to state and again can differ under federal laws.

Also, the type of legal issue, dispute, or transaction

involved can affect a given definition usage.

Accordingly, a legal

dictionary should only be used as a CCstarting point" for definitions. Additional research should follow for state or federal variations, for further or later court interpretations, and for specific applications. Helpful sources for supplemental research are CCWords and Phrases" and WESTLAW.

THE PUBLISHER St. Paul, Minn.

July, 1990

CONTENTS

Page

Preface The Pronunciation of Latin

____________________________________________________________________________________

iii

______________________________________________________

vii

Outline of Latin Pronunciations Transcription System

_____________________________________________

________________________________________________________________

Guide to Pronunciation Symbols

Text of Definitions

ix xi

____________________________________________

xii

___ _______ _______ ___ _______ ______ __ _______________ ________ _______

Appendices Table of Abbreviations

__________________________________________________________

The Constitution of the United States

Time Chart of the United States Supreme Court

____________________

Organizational Chart of United States Government Table of British Regnal Years

1623 1639 1651 1655 1657

____________________________________

________________

_______________________________________________

THE PRONUNCIATION OF LATIN

A majority of the Latin terms in this revised edition of Black's Law Dictionary, and also occasional English and foreign terms, have been provid ed with pronunciation entries.

The pronunciations follow a descriptive

scheme and are based on actual usage rather than on any attempt to prescribe a uniform pronunciation.

Where alternate pronunciations exist

and philologically more cappropriate' pronunciation generally receives first listing, however.

The entries provide an acceptable pronunciation in a

transcription system compatible with the major varieties of North American English and extendable to other pronunciations. Despite its continuing decline as a working language of scholarship and jurisprudence, Latin still supplies a formidable stock of legal terms and phrases.

The ability to use a Latin phrase correctly and pronounce it with

authority and consistency belongs to the equipment of a well-rounded jurist. Those who actually study Latin today, however, will in all probability learn a pronunciation (either the reformed philological or the Italianate) at vari ance with the Anglo-Latin system which prevails in legal and medical spheres.

Injection of the cnewer' school pronunciations actually serves to

increase confusion and uncertainty:

Where masculine plural alumni and

feminine plural alumnae were once differentiated in speech as / �lamnay/ and /�lamniy/ respectively, one widespread variant of the philological pro nunciation actually reverses the opposition with masculine / �lamniy/ and feminine / �lamnay/.

The status of amicus curiae, traditionally pronounced

/ �mayk�s kyuriyiy/, now has variants I�miyk�s kuriyayI (adapted philologi cal), lamiykus kuriyeyl (Italianate), and numerous hybrids.

A parliamenta

rian of the old school, perhaps even well versed in Latin, adjourns a meeting sine die / sayniy dayiyI only to have a junior colleague suggest that the ccorrect' pronunciation is / siyney diyeyI. Strictly speaking, of course, any attempt at ccorrect' pronunciations of foreign terms can at best be only weak approximations.

The linguistic

contortions of a purist attempting to weave foreign sounds and intonations into the texture of an English sentence usually strike us as pedantic or affected.

Although Julius Caesar may have pronounced his name something

like Iyuwliyus kaysar/ and later Romans may have called him Icheyzar/, few speakers of English have place for anything other than the Anglo-Latin I juwl(i)y�s siyz�r/ . Three major systems of Latin pronunciation, outlined below, coexist in the English-speaking world. context.

Each has its proper cultural and scholarly

The reformed (or new, or philological, or Roman) pronunciation

represents a modification to English speech habits of the reconstructed sounds of Latin as it must have been in the classical period. vii

Philologists,

PRONUNCIATION OF LATIN classical historians, and most teachers of Latin employ this pronunciation in their professional activity. Anglo-Latin (or English) pronunciation, the form most commonly encountered in law, medicine, the natural sciences, and in general usage, reflects the centuries of sound change that English has undergone. *

Although it may not possess the authenticity of linguistic

reconstruction, the Anglo-Latin system enjoys the authority of a persevering and distinct cultural tradition. The Italianate pronunciation derives from the pronunciation of Later Latin and is viewed as the standard in Roman Catholicism (including canon law), in music, in art history, and in medieval studies.

Thus, a school master may leave the classroom, where he has just

taught his pupils Latin imperatives including wenite tcome' /weniyte/ (re formed philological), go to chapel to rehearse with the choir Psalm 95 in Anglican morning prayer, the Venite /vanaytiy/ (Anglo-Latin), and then actually sing the text in a Latin setting as /veyniytey eksulteymus . 1 .

(Italianate). •

Each pronunciation is correct in its own context.

There exist, in addition, various secondary pronunciations,

such as the continental one often used by scholars of Middle English literature and history.

viii

OUTLINE OF LATIN PRONUNCIATIONS

Letter

Reformed Philological

Italianate

Ia, ce, ey, �, 01

lal Ibl

b Ikl

Ichl before Ii, el Ikl elsewhere

Is, sh, z, kl

Idl

Ie, ey, �, i, iyl

ley, el

IfI

f g

Anglo-Latin

lUI before n Igl elsewhere

Ihl

Ijl before Ii, el Igl elsewhere Ignl pronounced I nyl

Ij, gl

Ihl or silent Ikl in nihil, mihi

Ihl or silent

Ii, iyl

Iyl

Ii, iy, ay, �I Ijl

Ikl

11/

Iml

In, Ul

10, a, �, owl

10, owl

Ipl

Ikwl

Irl

�

lsI

Izl between vowels Isl elsewhere

Is, z, sh, zhl

t(h)

ItI

Itsl before i plus vowels except after s, t, x ItI elsewhere

It, d, sh, chI th as 181

Iw I after q or ng luwl elsewhere

Iyuw, uw, u, y�, �, i, wI

lu, uw, wI

OUTLINE OF LATIN PRONUNCIATIONS Letter v

Reformed Philological

Anglo-Latin

Italianate /v/

/w/

/ks, gz, z, s/

/ks/ x + /ch/

/ksh/

Ii, iy/

/iy/ or Gmn ii

/z/

/z, dz/

lay, iy, i, y/ /z/

Attested forms in Anglo-Latin pronunciation sometimes fail to correspond in qualitative or accentual details with the forms we might expect on an etymological or systematic basis. Thus, bona fide appears as /b6wn� faydiy/ instead of industry appears as /ind�striy/ instead of minor appears as /mayn�r/ instead of

/b6n� fidiy/

/ind�striy/

/min�r/, etc.

Numerous developments in the sound system of English have tended to override the expected forms. Analogies with sibling or quasi-sibling forms often keep doublets flourishing side by side: licet �it is permitted' as /lays�t/ (cf. license) or /lis�tI (cf. licit) debet �one must' as /diyb�t/ or /deb�t/ (cf. debit and credit) capias �thou shouldst seize' as /keypiy�s/ (cf. cape) or /kcEpiy�s/ (cf. capture) Language traditions usually resolve such conflicts in good time, favoring �usage' over �correctness', and then promptly create new conflicts.

TRANSCRIPTION SYSTEM

The transcription system employed for these listings is derived from one of the traditional phonemic analyses of American English (Trager-Smith). The values of the symbols vary with context, i.e., their specific pronuncia tions depend on the nature of the surrounding sounds. The pronunciation habits of a normal speaker of English will, however, in practically all cases supply the accustomed variants for that speaker's usage if the elements presented in the key are substituted in accordance with the sample indica tions.

This system enables the speakers of a range of dialects to use one and

the same transcription and yet produce a pronunciation natural to their speech.

For this reason, in addition to the considerations given above

concerning the treatment of foreign terms in English, sounds foreign to English have been represented by the customary English substitutes.

Thus,

for example, the voiceless velar fricative of German Bach would be rendered with a simple stop Ikl and French front rounded eu with Iyuw/.

Readers who wish to affect the foreign sounds will find guidance in their own linguistic experience or in the appropirate grammars and dictionaries. Similarly, readers who prefer pronunciations closer to the spelling than those presented here should feel free to substitute their preferences, e.g., restoration of ufull" vowels for unaccented I�I or evert to pronouncing the t in often.

Finally, readers who already feel secure (or even superior) in their

own renderings of words and phrases should retain these.

The editors will

always appreciate information on local variants and will welcome sugges tions for improving the transcriptions. The rubrics (sets of examples) under any given major symbol should always be applied in order.

The earlier, more specific contexts take prefer

ence over the later, telsewhere' variant. The special symbols 1001 (ash)

IC51 (edh)

appear respectively after lal Idl

I�I (schwa)

IIJI (angma) (81 (theta)

lei

Inl

ItI

The reader will, of course, be aware that the transcription symbols do not necessarily have the same alphabetic values as in English.

Rather, the

symbols must be viewed as arbitrary signs, although in many cases their forms will aid the user in remembering and associating the key sounds and symbols.

GUIDE TO PRONUNCIATION SYMBOLS

layl as in the bold portions of aye, eye, I layl lie Ilayl buy, by, bye /bayI high Ihayl aisle, isle, I'll layll idea IaydiYell

�

lawl

as in out lawtl

how Ihawl

I ar I

as in bark Ibarkl

car IkarI

lal

elsewhere as in father Ifa�elr/.

18!1

as in cat Ikztl

Ibl

as in bill IbOI

Ichl

as in chill IchOI

In many dialects identical with 101.

church Ich�rchl

nature Ineychelrl

question Ikwes(h)chelnl

Idl

as in dill IdOl

odor lowdelr/.

In many dialects better, bedder may both appear as /bedelr I.

I�I

as in this I�isl

smooth Ismuw�1

thou I�awl

not to be confused with 181

[!]

leyl as in they I�eyl make Imeykl sail, sale Iseyll neigh, nay Ineyl lehrl as in error lehrelrl merry Imehriy/. In dialects where lehrl is not distinct from lerl the diacritic Ihl may be ignored. lerl as in there, their l{jerl air, e'er lerl lei elsewhere as in dell Idell bet /betl

lelhrl

as in current Ik�hrantl.

In dialects where lelhrl is not distinct

from lelrI the diacritic Ihl may be ignored. lelrl as in murder Im�rdelrl were Iw�rl mother Ima&rl world Iw�rldl whirr I(h)w�rl I�I

1-;1 (with either primary or secondary stress) as in but, butt Ib�tl blood /bladl above I elb�v I

lell

elsewhere (unstressed) as in sofa Isowfell

IfI

as in fill, Phil If01

rough ltifl xii

another leln;&rl

GUIDE TO PRONUNCIATION SYMBOLS

[!] � OJ

Igl

Ihl

always 'hard' as in gall Igoll

Gaul /gol

lag II�gl

as silent diacritic in combinations lehr, �hr, ihr, ohrl and Ich, sh, zhl otherwise as in hill Ihnl mousehole Imaws-howll

liyI

as in machine Im�shiynl

lihrl

as in irrigate lihr�geytl

be, bee, Bea IbiyI spirit Ispihr�t/.

each liychl In dialects where

lihr I is not distinct from lirI the diacritic Ihl may be ignored. lirl

as in pier, peer Ipirl

Iii

[]

hear, here Ihirl

elsewhere as in sit Isitl

Ijl

as in Jill Ijill

pretty Ipri tiyI

general Ijen(�)r�ll

edge lejl

soldier Isowlj�rl

carriage Ik�r�jI

Ikl

�

III

cool Ikuwll

as in Lill Ilill

Iml

as in mill Imill

Inl

as in nil Inill as in thing 1811)1

II)I

�

as in kill Ikill

singer Isi�rl

finger Ifil)g�rl

loyl as in boy Iboyl noise Inoyzl lowl as in know Inowl sew, so, sow (seed) Isowl IohrI as in foreign Ifohr�nl borrow IbohrowI. In dialects where IohrI is not distinct from lorI the diacritic Ihl may be ignored. lorI 101

� o

Ipl

IrI

as in bore, boar IborI

course, coarse Ikorsl

elsewhere as in rot, wrought Irotl wall Iwoll ought, aught loti law 1101. Some dialects merge 101 and lal while others treat diph thongal spellings as 101 but others as la/.

as in pill Ipnl

lip llipl

as in rill Irn/. See also the coloring function of IrI in diphthongs lar, e(h)r, �(h)r, i(h)r, o(h)r, uri.

xiii

GUIDE TO PRONUNCIATION SYMBOLS

o [!] [[)

Ishl as in shill IshOI sugar Ishug;rl lsI as in sill IsOI city Isidiyl ItI

as in till ItOI

181

as in thin 18inl

issue lishyuwl

hit Ihitl

thought 186tl not to be confused with /d/:

ether liy8;r/ either /iy&rl

luwI lurl luI

IwI

as in too, two Itiiw/ as in jury /jiiriyl

through, threw /8riiw/

elsewhere as in put Iputl

as in will Iwfll

crude Ikriiwdl

poor /piirl good Igudl

weather /we&r/.

could Ikudl

See also

Annul; Repeal.

Absconding debtor. One who absconds from his credi tors to avoid payment of debts. A debtor who has intentionally concealed himself from his creditors, or withdrawn himself from the reach of their suits, with intent to frustrate their just demands. Such act was formerly an "Act of bankruptcy" (q. v.). Absence. The state of being absent, removed, or away from one's domicile, or usual place of residence. Not present at particular time; opposite of appearance at a specified time. See also Seven years' absence. Absent. Being away from; at a distance from; not in company with. Absente Irebsentiy I. Lat. Being absent; often used in the old reports of one of the judges not present at the hearing of a cause.

Abridgment. Condensation; contraction. An epitome or compendium of another and larger work, wherein the principal ideas of the larger work are summarily con tained. Abridgments of the law are brief digests of the law, arranged alphabetically. In this context, the term "digest" (q. v.) has generally supplanted that of "abridg ment." See also Abstract; Headnote; Syllabus.

Absentee. One who is absent from his usual place of residence or domicile.

As used in First Amendment (U.S.Const.) means nei ther more nor less than what it ordinarily means; abridgement occurs when legislative act either suppress es or substantially interferes with free speech. Keene v. Meese, D.C.Cal., 619 F.Supp. 1111, 1123.

Absentee voting. Participation (usually by mail) in elections by qualified voters who, because of serious illness, military service, or absence because of travel or other reasons, are unable to appear at the polls in person on election day. See a lso Proxy with respect to absent voting by stockholder.

Abridgment of damages. The right of the court to reduce the damages in certain cases. See Remittitur. Abroad.

In English chancery law, beyond the seas.

Absente reo lrebsentiy riyow/.

The defendant being

absent.

Absentee landlord. Lessor of real property (normally the owner) who does not live on the premises.

Absentem accipere debemus eum qui non est eo loci in quo petitur Irebsent�m �ksip�riy d�biym�s iy�m kway non est iyow lowsay in kwow pet�t�r I. We ought

ABSTENTION DOCTRINE

9 to consider him absent who is not in the place where he

is demanded (or sought). Absentia ejus qui reipublicre causa abest, neque ei neque alii damnosa esse debet /rebsensh(iy)� iyj�s kwliy riyayp�bl�siy k6z� reoost, neykwiy iyay neykwiy reliyay dremn6ws� esiy diyb�t/. 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. Absoile, assoil, assoile /�s6yl/. from excommunication.

To pardon; to deliver

Absoluta sententia expositore non indiget Ici:bs�l(y)u� s�ntensh(iy)� ekspoz�t6riy non ind�jet/. An absolute sentence or proposition (one that is plain without any scruple, or absolute without any saving) needs not an expositor. Absolute. Complete; perfect; final; without any condi tion or incumbrance; as an absolute bond (simplex obli gatio) in distinction from a conditional bond. Uncondi tional; complete and perfect in itself; without relation to or dependence on other things or persons.

Free from conditions, limitations or qualifications, not dependent, or modified or affected by circumstances; that is, without any condition or restrictive provisions. Button v. Day, 205 Va. 629, 139 S.E.2d 91, 100. As to absolute Conveyance; Covenant; Delivery; Di vorce; Estate; Gift; Guaranty; Interest; Legacy; Nui sance; Nullity; Obligation; Property; Right; Rule; Sale; Title, see those titles. Absolute deed. A document of conveyance without re striction or defeasance; generally used in contradistinc tion to mortgage deed. See Deed. 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 exer cise and obligation. See also Natural law. Absolute liability. Responsibility without fault or neg ligence. Rylands v. Fletcher, 3 H.L. 330; Clark-Aiken Co. v. Cromwell-Wright Co., Inc. (Mass.), 323 N.E.2d 876.

See Strict liability. 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; that which the law or nature of things forbids to be enforced at all. Absolutely necessary may be used to make the idea of necessity more emphat ic. Independently or unconditionally, wholly or posi tively. Collins v. Hartford Accident & Indemnity Co., 178 Va. 501, 17 S.E.2d 413, 418. 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.

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. Absolutism /rebs�l(y)uwtiz�m/. 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. A government which is run by a dictator whose power is without restriction and without any checks or balances. Absolve. To set free, or release, as from obligation, debt, or responsibility. State ex reI. St. Louis Car Co. v. Hughes, 348 Mo. 125, 152 S.W.2d 193, 194. See also

Amnesty; Pardon; Release. Absorption /�bz6rpsh�n/. Act or process of absorbing. Term used in collective bargaining agreements to pro vide seniority for union members if employer's business is merged with another. Humphrey v. Moore, Ky., 375 U.S. 335, 84 S.Ct. 363, 369. Partial or complete pay ment of freight charges by seller or freight carrier. Costs not passed on to customer. Absque /rebskwiy/. Without. Occurs in phrases taken from the Latin; . such as those immediately following. Absque aliquo inde redendo /rebskwiy rebkwow indiy r�dendow/. Lat. Without reserving any rent there from; without rendering anything therefrom. A term used of a free grant by the crown. Absque consideratione curire /rebskwiy k�n sid�reyshiy6wniy kyuriyiy/. In old practice, without the consideration of the court; without judgment. Absque dubio /rebskwiy d(y)uwbiyow/. doubt.

Lat.

Without

Absque hoc /rebskwiy h6k/. 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 in ducement. See also Traverse. Absque impetitione vasti /rebskwiy imp�tishiy6wniy veystay/. Without impeachment of waste; without ac countability for waste; without liability to suit for waste. A clause anciently often inserted in leases (as the 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 com mitting waste. See Waste. Absque tali causa /rebskwiy teylay k6z�/. Lat. With out 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. Abstention doctrine. Doctrine of "abstention" permits a federal court, in the exercise of its discretion, to relinquish jurisdiction where necessary to avoid needless conflict with the administration by a state of its own affairs. Surowitz v. New York City Emp. Retirement System, D.C.N.Y., 376 F.Supp. 369, 376; Railroad Com mission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct.

ABSTENTION DOCTRINE 643, 85 L.Ed. 971. See also Equitable abstention doctrine;

Pullman abstention. Abstinence. Refraining completely from indulgence in some act such as eating or drinking, unlike temperance which presupposes moderate indulgence. Mayfield v. Fidelity & Casualty Co. of N. Y., 16 C.A.2d 611, 61 P.2d 83. Abstract hebstrrekt/, n. A lesser quantity containing the virtue and force of a greater quantity; an abridg ment. A transcript is generally defined as a copy, and is more comprehensive than an abstract. 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. See Abridge; Abridgment;

Digest; Headnote; Syllabus. Abstract I;)bstrrektl, v. To take or withdraw from; as, to abstract the funds of a bank. To remove or separate. To summarize or abridge. Abstraction. Taking from with intent to injure or de fraud. "Wrongful abstraction" is unauthorized and il legal taking or withdrawing of funds, etc., and appropri ation thereof to taker's benefit. Pacific Coast Adjust ment Bureau v. Indemnity Ins. Co. of North America, 115 CaI.App. 583, 2 P.2d 218, 219. Abstract of a fine. In old English conveyancing, one of the parts of a fine, being an abstract of the writ of covenant, and the concord, naming the parties, the par cels of land, and the agreement. 2 BI.Comm. 351. More commonly called the "note" of the fine. See Fine; Con

cord. Abstract of record. A complete history in short, abbre viated form of the case as found in the record, complete enough to show the appellate court that the questions presented for review have been properly reserved. Syn opsis or summary of facts, rather than table of contents of transcript. Abbreviated accurate and authentic histo ry of (e.g. trial court) proceedings. Brown v. Reichmann, 237 Mo.App. 136, 164 S.W.2d 201, 207. Abstract of title. A condensed history of the title to land, consisting of a synopsis or summary of the materi al or operative portion of all the conveyances, of whatev er kind or nature, which in any manner affect said land, or any estate or interest therein, together with a state ment 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. An epitome of the record evidence of title, 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 facts relied on as evidence of title, together with all such facts appear ing of record as may impair the title. State ex reI. Freeman v. Abstracters Board of Examiners, 99 Mont. 564, 45 P.2d 668, 670. Memorandum or concise state ment in orderly form of the substance of documents or facts appearing on public records which affect title to

10 real property. State ex reI. Doria v. Ferguson, 145 Ohio St. 12, 60 N.E.2d 476, 478. See also Torrens title system. Abstract question. One which does not rest upon exist ing facts or rights. Morris Plan Bank of Fort Worth v. Ogden, Tex.Civ.App., 144 S.W.2d 998, 1004. Hypotheti cal question. See also Hypothetical question; Moot. Absurdity. 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. Obviously and flatly opposed to the manifest truth; inconsistent with the plain dictates of common sense; logically contradictory; nonsensical; ridiculous. Abundans cautela non nocet I;)b;}nd:mz kotiyl;) non nos;)t/. Abundant or extreme caution does no harm. This principle is generally applied to the construction of instruments in which superfluous words have been in serted more clearly to express the intention. Ab urbe condita lreb ;}rbiy kondit;)/. From the founding of the city. See A.U.C. Abus de confiance I;)byuw d;) konfiyons ;)byuws d;) k;)nfay;)ns/. Fraudulently misusing or spending to any body's prejudice goods, cash, bills, documents, or con tracts handed over for a special object. Abuse I;)byuws/, n. Everything which is contrary to good order established by usage. Departure from rea sonable use; immoderate or improper use. Physical or mental maltreatment. Misuse. Deception.

To wrong in speech, reproach coarsely, disparage, re vile, and malign. State v. Neubauer, 2 Conn.Cir. 169, 197 A.2d 93, 96. See Defamation.

Child abuse. See Child abuse. Civil law. The destruction of the substance of a thing in using it. See Abuse, v. 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.

Discretion. "Abuse of discretion" is synonymous with a failure to exercise a sound, reasonable, and legal discre tion. It is a strict legal term indicating that appellate court is of opinion that there was commission of an error of law by the trial court. 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 de ductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law. State v. Draper, 83 Utah 115, 27 P.2d 39; Ex parte Jones, 246 Ala. 433, 20 So.2d 859, 862. A discre tion exercised to an end or purpose not justified by and clearly against reasor! and evidence. Unreasonable de parture from considered precedents and settled judicial custom, constituting error of law. Beck v. Wings Field,

ACADEMIC QUESTION

11 Inc., C.C.A.Pa., 122 F.2d 114, 116, 117. A judgment or decision by an administrative agency or judge which has no foundation in fact or in law. "Abuse of discretion" by trial court is any unreasonable, unconscionable and arbitrary action taken without proper consideration of facts and law pertaining to matter submitted. Harvey v. State, Okl.Cr., 458 P.2d 336, 338.

Drug abuse. See that title. 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. Any injury to private parts of girl constitutes "abuse" within meaning of crim inal statute proscribing abuse of girl under age of 12 years in attempt to have carnal knowledge of her; mere hurting of private parts of girl, even though they are not bruised, cut, lacerated or torn, is sufficient. Ard v. State, 57 Ala.App. 250, 327 So.2d 745, 747. See also

Female child.

Carnal abuse; Child abuse. Police officer. As used in statute prohibiting one from obstructing, resisting, or abusing an officer, word "abus es" means to wrong in speech, reproach coarsely, dispar age, revile, or malign an officer who is performing his duty. State v. Neubauer, 2 Conn.Cir. 169, 197 A.2d 93. Use of one who possesses it in a manner con trary to law. Improper use of power, distinguished from usurpation of power which presupposes exercise of pow er not vested in the offender. Swenson v. Cahoon, 111 Fla. 788, 152 So. 203, 204.

Power.

Rrocess. 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. 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. 500 West 174 St. v. Vasquez, 67 Misc.2d 993, 325 N.Y.S.2d 256, 258. Thus, where the pm'pose of a prosecution for issuance of a check without funds was to collect a debt, the prosecution is an abuse of criminal process. 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 ac tion 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. Lobel v. Trade Bank of New York, 132 Misc. 643, 229 N.Y.S. 778, 781. Fundamental elements of this tort are an ulterior purpose, and a willful act in the use of process not proper in the regular conduct of the proceeding. Bar quis v. Merchants Collection Ass'n of Oakland, Inc., Cal., 7 C.3d 94, 101 Cal.Rptr. 745, 752, 496 P.2d 817.

See also Malicious abuse of legal process; Malicious use of process.

Abuse /;byUwz/, 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 extrava gant or excessive use, as to abuse one's authority. Abused and neglected chlldren. Those who are suffer ing serious physical or emotional injury inflicted on them, including malnutrition. See Abuse (Female

child); Child abuse. Abusive. Tending to deceive; practicing abuse; prone to ill-treat by coarse, insulting words or harmful acts. Using ill treatment; injurious, improper, hurtful, offen sive, reproachful. Abut. To reach; to touch. To touch at the end; be contiguous; join at a border or boundary; terminate on; end at; border on; reach or touch with an end. The term "abutting" implies a closer proximity than the term "adjacent." No intervening land. Abuttals / ;b:}t�lz/ . The buttings or boundings of lands, showing to what other lands, highways, or places they belong or are abutting. It has been used to express the end boundary lines as distinguished from those on the sides, as "buttals and sidings". Abutter. One whose property abuts, is contiguous, or joins at a border or boundary, as where no other land, road, or street intervenes. 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;

Adjoining owners. A.C. Anno Christi, the year of Christ. Ale Abbreviation used by accountants and bookkeepers meaning "account." 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 memoran dum to identify the transaction in which the check was issued. Academic. Pertaining to college, university, or prepara tory school. Sisters of Mercy v. Town of Hooksett, 93 N.H. 301, 42 A.2d 222, 225. A question or issue which is not relevant to case or is premature or hypothetical. In re Battell's Will, 286 N.Y. 97, 35 N.E.2d 913. See

Academic question. Academic freedom. Right to teach as one sees fit, but not necessarily the right to teach evil. Kay v. Bd. of Higher Education of City of N. Y., 173 Misc. 943, 18 N.Y.S.2d 821, 829. The term encompasses much more than teaching-related speech rights of teachers. Cary v. Board of Ed. of Adams-Arapahoe School Dist. 28-.1, Aurora, Colo., C.A.Colo., 598 F.2d 535. Academic question. An issue which does not require answer or adjUdication by court because it is not neces sary to case. A hypothetical or moot question. In re Electrolux Corp., 288 N.Y. 440, 43 N.E.2d 480. See

Hypothetical question.

ACADEMY

Academy. An institution of higher learning. An associ ation of experts in some particular branch of art, litera ture, law, or science (e.g. American Academy of Matri monial Lawyers). In its original meaning, an associa tion formed for mutual improvement, or for the ad vancement of science or art; in later use, a species of educational institution, of a level between the elementa ry school and the college. V. S. ex reI. 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. In current usage, term commonly refers to private high school or one of the service academies (e. g. Air Force Academy).

See School. A crelo usque ad centrum ley siylow �skwiy red sentr::lm/. From the heavens to the center of the earth. Or more fully, Cujus est solum ejus est usque ad crelum et ad inferos. The owner of the soil owns to the heavens and also to the lowest depths. Or, Cujus est solum est u sque ad crelum,-the owner of the soil owns to the heavens. This doctrine has, however, been abrogated; the flight of airplanes and oil and gas regulations have qualified the owner's dominion not only in the heavens but in the lowest depths. See Air rights. A cancellando ley krens::llci!ndow/. BI.Comm. 46. A cancellis ley krensel::ls/.

From cancelling. 3

The Chancellor.

A cancellis curire explodi ley krensel::ls kyuriyiy ekspl6wday I. To be expelled from the bar of the court.

Acapte /::lkrept/. 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. A causa de cy ley k6z::l d::l siy I.

For this reason.

Accedas ad curiam Ireksiyd::ls red kyuriY::lm/. (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. 3 BI.Comm. 34. Accede. To consent; agree. Accelerated Cost Recovery System. (ACRS). An ac counting method whereby the cost of a fixed asset is written off for tax purposes over a prescribed period of time. Instituted by the Economic Recovery Tax Act of 1981, and modified by Tax Reform Act of 1986, the system places assets into one of various recovery periods and prescribes the applicable percentage of cost that can be deducted each year. I.R.C. § 168. See also Asset

Depreciation Range. Accelerated depreciation. Various methods of depreci ation that yield larger deductions in the earlier years of the life of an asset than the straight-line method. Ex amples include the double declining-balance and the

sum of the years' digits methods of depreciation.

See

Accelerated Cost Recovery System; Depreciation. Acceleration. The shortening of the time for the vest ing in possession of an expectant interest. Hastening of the enjoyment of an estate which was otherwise post poned 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 Ill. 147, 33 N.E.2d 199, 201.

Doctrine of "acceleration", as applied to law of proper ty, refers to hastening of owner of future interests toward status of present possession or enjoyment by reason of failure of preceding estate. Aberg v. First Nat. Bank in Dallas, Tex.Civ.App., 450 S.W.2d 403, 408. A remedy used where there has been an anticipatory repudiation or a possibility of a future breach. Rose City Transit Co. v. City of Portland, 18 Or.App. 369, 525 P.2d 1325, 1353. Acceleration clause. A provision or clause in a mort gage, note, bond, deed of trust, or other credit agree ment, that requires the maker, drawer or other obligor . to pay part or all of the balance sooner than the date or dates specified for payment upon the occurrence of some event or circumstance described in the contract. Such clause operates when there has been a default such as nonpayment of principal, interest, or failure to pay insurance premiums. General Motors Acceptance Corp. v. Shuey, 243 Ky. 74, 47 S.W.2d 968. V.C.C. § 1-208 provides that if the provision for acceleration is "at will" such demand must be made only under a "good faith" belief that the prospect of payment is impaired. Acceleration of remainders. Hastening of owner of remainder interest in property toward status of present possession or enjoyment by reason of failure preceding estate. Aberg v. First Nat'l Bank in Dallas, Tex.Civ. App., 450 S.W.2d 403, 408. Acceleration premium. creased production.

Increased rate of pay for in

Accept. To receive with approval or satisfaction; to receive with intent to retain. Morris v. State, 102 Ark. 513, 145 S.W. 213, 214. 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. Means something more than to receive, meaning to adopt, to agree to carry out provisions, to keep and retain.

In the capacity of drawee of a bill, means to recognize the draft, and engage to pay it when due. See Accept

ance. Acceptance. The taking and receiving of enything in good part, and as it were a tacit agreement to a preced ing act, which might have been defeated or avoided if such acceptance had not been made. The act of a person to whom a thing is offered or tendered by anoth er, whereby he receives the thing with the intention of retaining it, such intention being evidenced by a suffi cient act. Aetna Inv. Corporation v. Chandler Land scape & Floral Co., 227 Mo.App. 17, 50 S.W.2d 195, 197.

ACCESS

13 The exercise of power conferred by an offer by perform ance of some act. In re Larney's Estate, 148 Misc. 871, 266 N.Y.S. 564. Acceptance is the drawee's signed engagement to honor the draft as presented. It must be written on the draft, and may consist of his signature alone. It becomes operative when completed by delivery or notification. U.C.C. § 3-410. Certification of a check is acceptance. U.C.C. § 3-411. A draft may be accepted although it has not been signed by the drawer or is otherwise incomplete or is overdue or has been dishon ored. U.C.C. § 3-410(2). See also Acceptor; Banker's

Commercial paper.

acceptance; Honor. Contracts. Compliance by offeree with terms and condi tions of offer constitute an "acceptance". Davis & Clan ton v. C. I. T. Corporation, 190 S.C. 151, 2 S.E.2d 382, 383. A manifestation of assent to terms thereof made by offeree in a manner-invited or required by offer. K-Line Builders, Inc. v. First Federal Sa. & Loan Ass'n, App., 139 Ariz. 209, 677 P.2d 1317, 1320. The offeree's notification or expression to the offeror that he or she agrees to be bound by the terms of the offeror's proposal. A contract is thereby created. The trend is to allow acceptance by any means that will reasonably notify the offeror of the acceptance. See also Confirmation; Offer and acceptance. 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 is required; such must be communi cated to applicant. Limbaugh v. Monarch Life Ins. Co., Springfield, Mass., Mo.App., 84 S.W.2d 208, 212. Term as applied to policy means assent, acquiescence or agree ment to terms and conditions of policy. Baker v. St. Paul Fire & Marine Ins. Co., Mo.App., 427 S.W.2d 281, 291. U.C.C. § 2-606 provides three ways a buyer can accept goods: (1) by signifying to the seller that the goods are conforming or that he will accept them in spite of their nonconformity, (2) by failing to make an effective rejection, and (3) by doing an act inconsistent with the seller's ownership. Acceptance of a part of any commercial unit is acceptance of that entire unit.

Sale of goods.

Types of acceptance. Conditional. An engagement to pay the draft or accept the offer on the happening of a condition. A "condi tional 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 coun ter offer.

An undertaking in direct and express terms to perform the terms of the contract, pay the bill, draft, etc.; an absolute acceptance.

Express.

An undertaking to pay the draft 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 ex pressed, but may be shown by any words or acts indi cating the offeree's assent to the proposed bargain.

Implied.

Qualified. One either conditional or partial, and which introduces a variation in the sum, mode, or place of payment. In contract law, an acceptance based on a variation of the terms of the offer and hence a counter offer. In negotiable instruments, a variation in the terms of the instrument by the acceptor. Acceptance au besoin hikseptons ow b�zwren/. Fr. Acceptance in case of need. An acceptance by one whom a bill is drawn au besoin, that is, in case of refusal or failure of the drawee to accept. Acceptare Ireksepteriy I. Lat. To accept; to assent; to assent to a promise made by another. Accepteur par intervention Irekseptylir par rent�rvonsyown/. In French law, acceptor of a bill of honor. Acceptilation I reksept�leysh�nl . In the civil and Scotch law, release made by a creditor to his debtor of his debt, without receiving any consideration. It is a species of donation, but not subject to the forms of the latter, and is valid unless in fraud of creditors. The verbal extinc tion 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. Acceptor. The person (the drawee) who accepts a draft and who engages to be primarily responsible for its payment. One who engages that he will pay the draft according to its tenor at the time of his engagement or as completed pursuant to authority on incomplete in struments. U.C.C. § 3-413. Acceptor supra protest I �ksepter s(y)uwpr� prowtest/. One who accepts a bill which has been protested, for the honor of the drawer or any one of the indorsers. Access. Freedom of approach or communication; or the means, power, or opportunity of approaching, communi cating, or passing to and from. Sometimes importing the occurrence of sexual intercourse, Jackson v. Jack son, 182 Okl. 74, 76 P.2d 1062, 1066; otherwise as importing opportunity of communication for that pur pose 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. "Access" to property does not necessarily carry with it possession. People v. Bren neauer, 101 Misc. 156, 166 N.Y.S. 801, 806. See Access,

easement of. For purposes of establishing element of access by defendant in copyright infringement action, "access" is

ACCESS

ordinarily defined as opportunity to copy. Meyer, D.C.N.Y., 434 F.Supp. 32, 34.

Musto v.

Multiple access. The defense of several lovers in pater nity actions.

Yarmark v. Strickland, 193 So.2d 212.

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. See Freedom

Public records.

of Information Act. Accessary. See Accessory.

kinds: First, the formal entrance of a third nation into a treaty so that such nation becomes a party to it; and this can only be with the consent of the original parties. Second, a nation may accede to a treaty between other nations solely for the purpose of guarantee, in which case, though a party, it is affected by the treaty only as a guarantor. See Adhesion. Accessions. Goods which are installed in or affixed to other goods. V.C.C. § 9-314(1). See also Fixture.

Access, easement of liyzm:mt :;)v rekses/. 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.

Accessorium non ducit, sed sequitur suum principale Ireksesoriy:;)m non dyuws:;)t sed sekw:;)t:;)r syuw:;)m prins:;)peyliy/. That which is the accessory or incident does not lead, but follows, its principal.

Accessio lreksesh(iy)ow/. In Roman law, an increase or addition; that which lies next to a thing, and is supple mentary and necessary to the principal thing; that which arises or is produced from the principal thing; an "accessory obligation" (q. v.). One of the modes of ac quiring property, being the extension of ownership over that which grows from, or is united to, an article which one already possesses.

Accessorius sequitur naturam sui principalis Ireksesoriy:;)s sekw:;)d:;)r neytyur:;)m syuway prins:;)peyl:;)s/. An accessory follows the nature of his principal. One who is accessory to a crime cannot be guilty of a higher degree of crime than his principal.

Accessio includes both accession and accretion as used in the common law. See Adjunction. 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. The right to own things that become a part of something already ' owned; e.g. 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. See

Accretion. A principle derived from the civil law, by which the owner of property becomes entitled to all which it pro duces, 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. Generally, "accession" signifies acquisition of title to personal property by bestowing labor on it which con verts it into an entirely different thing or by incorpo ration of property into a union with other property. IDS Leasing Corp. v. Leasing Associates, Inc., Tex.Civ. App., 590 S.W.2d 607, 609. The commencement or inauguration of a sovereign's reign. The absolute or conditional accept ance by one or several nations of a treaty already concluded between other sovereignties. It may be of two

International law.

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. Adjunct or accompaniment. Louis Werner Saw Mill Co. v. White, 205 La. 242, 17 So.2d 264, 270. A thing of subordinate importance. Aiding or contributing in sec ondary way or assisting in or contributing to as a subordinate. Gilfoil v. Greenspon, La.App., 216 So.2d 829, 831.

Criminal law. Contributing to or aiding in the commis sion 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. Model Penal Code, § 2.06. One who is not the chief actor in the offense, nor present at its performance, but in some way concerned therein, either before or after the act committed. One who aids, abets, commands, or counsels another in the commission of a crime. See also Abettor; Aid and abet;

Accomplice. 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. Robinson v. State, 5 Md.App. 723, 249 A.2d 504, 507; 18 V.S.C.A. § 3. See also Harbor; Obstructing justice.

Accessory after the fact.

One who orders, counsels, encourages, or otherwise aids and abets another to commit a felony and who is not present at the commis sion of the offense. Com. v. Leach, 455 Pa. 448, 317 A.2d 293, 294. The primary distinction between the accessory before the fact and the principal in the sec ond degree is presence. Virtually all states have now expressly abrogated' the distinction between principals and accessories before the fact; the latter now being classified as principals.

Accessory before the fact.

ACCIDENT

15 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. Accessory building. Structures used for benefit of main building; e.g. tool shed. Out-buildings. Accessory contract. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others; such as suretyship, mort gage, and pledge. Accessory obligation. An obligation which is inciden tal to another or principal obligation; e.g. the obligation of a surety. Accessory use. With reference to zoning law, an "acces sory use" in its ordinary signification is a use which is dependent on or pertains to principal or main use. Town of Foxborough v. Bay State Harness Horse Racing & Breeding Ass'n, Inc., Mass.App., 366 N.E.2d 773, 777. A use which is subordinate to, clearly incidental to, customary in connection with, and ordinarily located on same lot with, principal use. Board of County Com'rs of Boulder County v. Thompson, 177 Colo. 277, 493 P.2d 1358, 1360. Access to counsel. Right of one to consult with his attorney as guaranteed by the 6th Amendment, U.S. Const. Geders v. U. S., 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592. See also Counsel, right to. Access to courts. Right of person to require fair hear ing from judiciary. Gilmore v. Lynch, D.C.Cal., 319 F.Supp. 105, 110. Accident. The word "accident" is derived from the Latin verb "accidere" signifying "fall upon, befall, hap pen, 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, happen ing 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 phenomenal, tak ing 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 in jury resulting from any unlooked for mishap or occur-

rence; any unpleasant or unfortunate occurrence, that causes injury, loss, suffering or death; some untoward occurrence aside from the usual course of events. An event that takes place without one's foresight or expec tation; an undesigned, sudden, and unexpected event. Kochring Co. v. American Auto. Ins. Co., C.A.Wis., 353 F.2d 993, 996. See also Act of God; Casualty; Inevitable

accident; Unavoidable accident. Its synonyms are chance, contingency, mishap, mis chance, misfortune, disaster, calamity, catastrophe. The word as used in automobile liability policy requiring notice of any "accident" 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. The word "accident", requiring operator of vehicle to stop immediately in case of accident, contemplates any situation occurring on the highway wherein driver so operates his automobile as to cause injury to the property or person of another using the same highway. See also Hit and run accident.

Automobiles.

An accident within accident insur ance policies is an event happening without any human agency, or, if happening through such agency, an event which, under circumstances, is unusual and not expect ed by the person to whom it happens. A more compre hensive term than "negligence," and in its common signification the word means an unexpected happening without intention or design.

Insurance contract.

"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, 171 U.S. 450, 19 S.Ct. 9, 43 L.Ed. 234. See also Perils of the sea.

Maritime law.

Unavoidable accident. One which is not occasioned in any degree, either directly or remotely, by the want of such care and prudence as the law holds every man bound to exercise. Vincent v. Johnson, Tex.Civ.App., 117 S.W.2d 135. One which could not have been pre vented by exercise of due care by both parties under circumstances prevailing. Woodiwiss v. Rise, 3 Wash. App. 5, 471 P.2d 124, 126. One which occurs while all persons concerned are exercising ordinary care, which is not caused by fault of any of persons and which could not have been prevented by any means suggested by common prudence. Cavanaugh v. Jepson, Iowa, 167 N.W.2d 616, 623. See Restatement, Second, Torts § 8. See also Unavoidable accident. Workers' compensation acts. Within meaning of Work er's Compensation Act is any unforeseen, untoward hap pening which was not to be reasonably anticipated. A.P. Green Refractories Co. v. Workmen's Compensation Appeal Bd., 8 Pa.Cmwlth. 172, 301 A.2d 914, 917. As referred to in Act is an unlooked for and untoward event which is not expected or designed by injured employee; a result produced by a fortuitous cause. Reams v.

ACCIDENT Burlington Industries, 42 N.C.App. 54, 255 S.E.2d 586, 587. Accident policy. Type of business and personal insur ance coverage that insures against loss resulting directly from bodily injuries effected during the term of the policy solely through accidental means. Accidental. Happening by chance, or unexpectedly; taking place not according to usual course of things; casual; fortuitous. Norris v. New York Life Ins. Co., C.C.A.Md., 49 F.2d 62, 63; Murphy v. Travelers Ins. Co., 141 Neb. 41, 2 N.W.2d 576, 578, 579. See also Accident. Accidental cause. That which produces result which is not foreseen; producing an unexpected effect. Fernan dez v. Flint Bd. of Ed., C.A.Mich., 283 F.2d 906, 908. See

also Accidental. Accidental death. One caused by unexpected or unin tended means. Sanders v. Metropolitan Life Ins. Co., 104 Utah 75, 138 P.2d 239. Accidental death benefit. Provision in insurance poli cy encompassing death caused by sudden, unexpected, external force. Maneval v. Lutheran Bros., Del.Super., 281 A.2d 502, 506. 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. Accidental means. Injury resulting from unintended, unforseeable, and unexpected cause. Accidental vein. See Vein. Accident proneness. Tendency towards being involved in or contributing to accidents. Accidere Ireksidariy I. 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; i.e., when they shall come to hand. Accion hiksiyown/. In Spanish law, a right of action; also the method of judicial procedure for the recovery of property or a debt. Accipere quid ut justitiam facias, non est tam acci pere quam extorquere lreksipariy kwid ;}t j;}stishiyam feyshiyas, non est teem reksipariy kwrem ekstorkwariy I. To accept anything as a reward for doing justice is rather extorting than accepting. Accipitare Ireksipateriy I. To pay relief to lords of man ors. Capitali domino accipitare, i.e., to pay a relief, homage, or obedience to the chief lord on becoming his vassal. Accola leekala/. Civil law. One who inhabits or occu pies land near a place, as one who dwells by a river, or on the bank of a river.

Feudal law. A husbandman; an agricultural tenant; a tenant of a manor. A name given to a class of villeins in Italy.

16 Accomenda lrekamenda/. 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 manda tum, 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. 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; not third person who may receive advantage. See

also Accommodation party. Accommodation Iakomadeyshan/. 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. The word implies no consideration. While a party's intent may be to aid a maker of note by lending his credit, if he seeks to accomplish thereby legitimate ob jects of his own, and not simply to aid maker, the act is not for accommodation. See Accommodation maker. Accommodation bill or note.

See Accommodation pa

per. 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. U.C.C. § 3-415. See also Indorsement. Accommodation lands. Land bought by a builder or speculator, who erects houses thereon, and then leases portions thereof upon an improved ground-rent. Accommodation line. Insurance policies accepted by insurer because agent or brokers account in general is satisfactory, even though specific policy would otherwise likely not be acceptable. Accommodation loan. Loan furnished as an act of friendship or assistance without tangible or full consid eration; money or credit extended for such reasons. 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. U.C.C. § 3-415. See also Accommodation party. Accommodation note. One to which accommodating party has put his name, without consideration, to accom modate some other party, who is to issue it and is expected to pay it. U.C.C. § 3-415. Accommodation paper. An accommodation bill or note is one to which the accommodating party, be he accep tor, drawer, or indorser, has put his name, without

ACCORD AND SATISFACTION

consideration, for the purpose of benefiting or accommo dating some other party who desires to raise money on it, and is to provide for the bill when due. Hickox v. Hickox, Tex.Civ.App., 151 S.W.2d 913, 917. Such must be executed for the purpose of loaning credit, and inci dental benefit to party is insufficient. Morrison v. Painter, Mo.App., 170 S.W.2d 965, 970. Accommodation party. One who signs commercial pa per in any capacity for purpose of lending his name (i.e. credit) to another party to instrument. U.C.C. § 3-415. Such party is a surety. 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 exclu sively. See also Easement. Accommodatum /;}kom;}deyt;}m/. modatum (q. v.).

The same as Com

Accompany. To go along with. 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 var ied facts; thus; an automobile driver under sixteen is not accompanied by an adult person unless the latter exercises supervision over the driver; an unlicensed driver is not accompanied by a licensed driver unless th� latter is near enough to render advice and assistance. Accomplice /;}k6mpl;}s/. One who knowingly, voluntar ily and with common intent unites with the principal offender in the commission of a crime. Smith v. State, Tenn.Cr.App., 525 S.W.2d 674, 676; Model Penal Code, § 2.06(3). One who is in some way concerned or associ ated 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. One who is guilty of complicity in crime charged, either by being present and aiding or abetting in it, or having advised and encour aged it, though absent from place when it was commit ted, 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 accom plice. One is liable as an accomplice to the crime of another if he gave assistance or encouragement or failed to perform a legal duty to prevent it with the intent thereby to promote or facilitate commission of the crime. See also Abet; Aid and abet; Accessory. Accomplice liability. Criminal responsibility of one who acts with another before, during or after the perpe tration of a crime. Model Penal Code, § 2.06. Accomplice witness. A person who either as principal, accomplice, or accessory, was connected with crime by unlawful act or omission on his part, transpiring either before, at time of, or after commission of offense, and whether or not he was present and participated in crime. Johnson v. State, Tex.Cr.App., 502 S.W.2d 761, 763.

Accord, n.

An agreement between two persons, one of whom has a right of action against the other, to settle the dispute. In a debtor/creditor relationship, an agree ment between the parties to settle a dispute for some partial payment. It is called an accord because the creditor has a right of action against the debtor.

A satisfaction agreed upon between the party injuring and the party injured which, when performed, is a bar to all actions upon this account. An accord being a contract, the requirements of mutual assent and consid eration must be met. Buob v. Feenaughty Machinery Co., 191 Wash. 477, 71 P.2d 559, 564. An agreement whereby one of parties undertakes to give or perform, and other to accept, in satisfaction of liquidated or disputed claim arising i��ither contract or tort some m what he is or considers thing different or less himself entitled to; and satisfaction" is execution or performance of agreement. Harris, Upham & Co., Inc. v. Ballantyne, Tex.Civ.App., 538 S.W.2d 153, 158. 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. See Accord and satisfaction;

,rry: •

Compromise and settlement; Executory accord; Satisfac tion. Accord, v. In practice, to agree or concur, as one judge with another. In agreement with. See Concur; Concur

ring opinion. Accordance. Agreement; harmony; concord; conformi ty. City and County of San Francisco v. Boyd, 22 Ca1.2d 685, 140 P.2d 666, 668. Accord and satisfaction. A method of discharging a claim whereby the parties agree to give and accept something in settlement of the claim and perform the agreement, the "accord" being the agreement and the "satisfaction" its execution or performance, and it is a new contract substituted for an old contract which is thereby discharged, or for an obligation or cause of action which is settled, and must have all of the ele ments of a valid contract. Holm v. Hansen, Iowa, 248 N.W.2d 503, 506. An executory bilateral contract of "accord" is an agreement embodying a promise, express or implied, to accept at some future time a stipulated performance in satisfaction or discharge in whole or in part of any present claim, cause of action or obligation, and a promise express or implied to render such per formance. Such 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.

Accord and satisfaction may also arise in a criminal case. See e.g. Mass.Gen.L. c. 276, § 55. In some jurisdictions, novation is a species of accord and satisfaction.

ACCORD AND SATISFACTION See Compromise and settlement; tion; Settlement. Affirmative defense.

Novation; Satisfac

A defense which must be pleaded

affirmatively in the defendant's answer.

8(c).

Fed.R.Civ.P.

itself) is not usually shown in accounts receivable. A claim against a debtor usually arising from sales or services rendered; not necessarily due or past due. For

accounts receivable insurance, see Insurance.

Account rendered. An account made out by the creditor,

Accordant I�kord�nt/ . Fr. and Eng. Agreeing; concur ring.

Accord executory. A bilateral agreement of settlement which has not yet been performed (satisfied). ment, Second, Contracts, § 281.

Restate

Accouchement I rekuwshmon/. giving birth to a child.

The act of a woman in 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 impor

tant evidence in proving parentage.

A detailed statement of the mutual demands in the nature of debit and credit between parties, arising

Account.

and presented to the debtor for his examination and acceptance. ed.

When accepted, it becomes an account stat

Account settled.

One in which the balance has been in

fact paid, thereby differing from an account stated.

Account stated. An agreed balance between parties to a

settlement. 800.

Eng v. Stein, 123 Ariz. 343, 599 P.2d 796,

An account that accumulates addi tions to another account.

Adjunct account.

Bank account. See Bank.

out of contracts or some fiduciary relation. A statement in writing, of debits and credits, or of receipts and payments; a list of items of debits and credits, with

Book account. See Book.

actions; a record or course of business dealings between

from an account stated.

their respective dates.

A statement of pecuniary trans

parties; a list or statement of monetary transactions, such as payments, losses, sales, debits, credits, accounts payable, accounts receivable, etc., in most cases showing a balance or result of comparison between items of an opposite nature.

See also Aging of accounts; Blocked account; Charge account; Community account; Custody account; Contra account; Escrow account; Impound account; Intermediate account; Liquidated account; Leger; Lang account; Mar gin account; Nominal account; Stated account; State ment of account. For Open account, see Open. Account annexed. Form of simplified statement used in pleading a common count (e.g. money had and received) impliedly authorized for use under Fed.R.Civil P. 8(a)(2).

Closed account.

An account to which no further addi

tions can be made on either side, but which remains still open for adjustment and set-off, which distinguishes it

Commercial transactions. In the check collection pro cess, "any account with a bank and includes a checking,

time, interest or savings account." U.C.C. § 4-104(1)(a). In secured transactions law, "any right to payment for

goods sold or leased or for services rendered which is not evidenced by an instrument or chattel paper, whether or not it has been earned by performance," including ordi nary accounts receivable and rights under a ship char

ter, U.C.C. § 9-106, and also the right to proceeds of a letter of credit. U.C.C. § 5-116(2).

Contra account. An account which serves to reduce the

gross valuation of an asset, also known as a valuation allowance. For example, accumulated depreciation

serves as a valuation allowance for machinery and

Account balance.

equipment.

Account debtor. Person who is obligated on an account,

Current account. An open or running or unsettled ac count between two parties; the antithesis of an account stated.

Difference between debit and credit sides of an account.

chattel paper § 9-105(1)(a).

general

intangible.

U.C.C.

Contrast with adjunct account, above.

Account payable.

Mutual accounts. Accounts comprising mutual credits between the parties; or an existing credit on one side

example, bills for materials received but not yet paid.

be a satisfaction or set-off pro tanto between the parties.

631, 639.

mutual transactions between the parties. State for Use and Benefit of State Hospital v. Hintz, N.D., 281 N.W.2d 564, 567.

A debt, owed by an enterprise, that arises in the normal course of business dealings and has not been replaced by a note payable of a debtor. For

Contract obligations owing by a person on open account. State Tax Commission v. Shattuck, 44 Ariz. 379, 38 P.2d A liability representing an amount owed to a

creditor, usually arising from purchase of merchandise

or materials and supplies; not necessarily due or past due.

Account receivable. A debt, owed to an enterprise, that

arises in the normal course of business dealings and is not supported by negotiable paper. For example, the charge accounts of a department store.

But income due

from investments (unless investments are the business

which constitutes a ground for credit on the other, or where there is an understanding that mutual debts shall A "mutual account" arises when there are items debited and credited on both sides of the account which indicate

An account which has not been finally settled or closed, but is still running or open to future

Open account.

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.

ACCOUNTING

Account,

account

render.

"Account," sometimes

called "account render," was a form of action at common law against a person who by reason of some . fiduciary

Accounting.

An act or a system of making up or set

tling accounts, consisting of a statement of account with debits and credits arising from relationship of parties.

relation (as guardian, bailiff, receiver, etc.) was bound to

State ex reI. King v. Harvey, Miss., 214 So.2d 817, 819.

Peoples Finance & Thrift Co. of Visalia v. Bowman, 58 CaI.App.2d 729, 137 P.2d 729, 731.

of a court.

render an account to another, but refused to do so.

Accountability. ble.

State of being responsible or answera

See also

Adjudicatory hearing; Adjudicatory process. A proceeding before an admin istrative agency in which the rights and duties of partic

Adjudicatory hearing.

ular persons are adjudicated after notice and opportuni

ty to be heard.

Adjudicatory proceeding. See Adjudicatory action; Ad

judicatory hearing; Adjudicatory process. Method of adjudicating factual disputes; used generally in reference to administrative proceedings in contrast to judicial proceedings.

Adjudicatory process.

Adjudicataire /;:)juwd;:)k;:)ch;:)r/. chaser at a sheriffs sale.

In Canadian law, a pur

Ad judicium hM juwdish(iy);:)m/.

To judgment; to court. Ad judicium provocare; to summon to court; to commence an action; a term of the Roman law.

Adjunct /rej�lJktl. Something added to another, but in a subordinate, auxiliary, or dependent position.

See also

Appurtenance. One associated with another in a subordinate or an auxiliary manner; an associate.

Adjunction / ;:)j�lJ(k)sh;:)n/ . to another.

Adding, affixing or attaching

Act of adjoining.

In civil law, the attach

ment or union permanently of a thing belonging to one

person to that belonging to another. The common law implicitly adopts the civil law doctrines. See Accession.

AD MAJOREM CAUTELAM

43 Adjunctum accessorium I ;}j:}IJkt;}m reks;}soriy;}m/. accessory or appurtenance.

Ad jungendum auxilium lre(d) j�njend;}m ogzil(i)y;}m/ . T o join i n aid.

See Aid prayer.

Ad jura regis lre(d) jura riyj;}s/. king;

To the rights of the

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.

Adjuration lrej;}reysh;}n/ . oath.

A swearing or binding upon

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 or controversy regarding property or estate.

To bring to

proper relations; to settle. To determine and apportion an amount due. Accounts are adjusted when they are settled and a balance is struck. Term is sometimes used in the sense of pay, when used in reference to a liqui dated claim. Combination Oil & Gas Co. v. Brady,

Tex.Civ.App., 96 S.W.2d 415, 416. Determination of amount to be paid to insured by insurer to cover loss or

damage sustained.

See Adjuster;

Adjustment;

Settle

ment. Adjustable-rate mortgage (ARM). Adjusted basis.

See Mortgage.

The cost or other basis of property

reduced by depreciation allowed or allowable and in creased by capital improvements. See Basis.

For income tax purposes, original cost plus additions to capital less depreciation results in the "adjusted cost basis." Herder v. Helvering, 70 U.S. App.D.C. 287, 106 F.2d 153, 162.

Adjusted cost basis.

The gross estate less I.R.C. §§ 2053 and 2054 expenses equals the adjusted gross estate. Generally, I.R.C. §§ 2053 and 2054 expenses

Adjusted gross estate.

include administration expenses, debts of the decedent, and losses incurred during the settlement of the estate.

Fifty percent of the adjusted gross estate measures the maximum amount of the marital deduction allowed for death tax purposes. See Administration expense; Gross

estate; Marital deduction. Adjusted gross income.

A tax determination peculiar

to individual taxpayers. Generally, it represents gross income less business expenses, expenses attributable to the production of rent or royalty income, the allowed capital loss deduction, and certain personal expenses.

See also Gross income. Adjusted ordinary gross income. A determination pe culiar to the personal holding company tax imposed by I.R.C. § 541 . Adjusted ordinary gross income is the corporation's gross income less capital gains, § 1231

gains, and certain expenses.

1.R.c. § 543(b)(2).

See also

Personal holding company income. One appointed to adjust a matter; to ascer tain or arrange or settle. One who makes any adjust ment or settlement, or who determines the amount of a claim, as a claim against an insurance company. A representative of the insurer who seeks to determine the

Adjuster.

extent of the firm's liability for loss when a claim is submitted. A person who acts for the insurance compa ny or the insured in the determination and settlement of claims. " Public" adjusters represent claimants only in presenting their claims to insurer.

"Average" adjusters

sp�cialize in adjusting marine losses.

See Claim adjuster; Claimant adjuster; Independent adjuster. An accounting entry made at the end of an accounting period to record previously unrecogniz

Adjusting entry.

ed revenue and expenses and changes in assets and liabilities.

An adjusting entry can also occur as a result

of an error made in a prior period, requiring an adjust ing or correcting entry in the current period.

An arrangement; a settlement. In the law of insurance, the adjustment of a loss is the ascer tainment of its amount and the ratable distribution of it

Adjustment.

among those liable to pay it. The settling and ascertain ing 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.

In tax practice, the correction of erroneous determina tion of deficiency. Hopper v. Government of Virgin Islands, C.A. Virgin Islands, 550 F.2d 844, 847.

Adjustment board.

See Board of adjustment.

Adjustment bond. See Bond. Stocks and bonds which are issued during a corporate reorganization.

Adjustment securities.

Adjutant general lrej;}d;}n(t) jen(;})r;}l/ .

An officer in charge of the National Guard of one of the States. The administrative head of a military unit having a general staff.

Adjuvari quippe nos, non decipi, beneficio oportet lrejuwveray

kwipiy

nows,

non

des;}pay,

ben;}

fish(iy)ow ;}port;}t/. 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.)

Ad largum Ired larg;}m/ .

At large; as, title at large; assize at large. Also at liberty; free, or unconfined. Ire ad largum, to go at large. A special verdict was former

ly called a verdict at large.

Adlegiare lredliyjiyeriy/ .

To purge one's self of a crime

Ad libitum I red libit;}m/.

At pleasure.

by oath.

Ad litem I red layt;}m/.

3 Bl.Comm. 292.

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 lucrandum vel perdendum Ired l(y)uwkrrend;}m vel

p;}rdend;}m/ . For gain or loss. Emphatic words in the old warrants of attorney. Sometimes expressed in Eng lish, "to lose and gain."

Ad majorem cautelam Ired m;}jor;}m kotiyl;}m/. greater security.

For

ADMANUENSIS

Admanuensis I redmrenyuwEms;)s/.

A person who swore

by laying his hands on the book.

Ad manum I red meyn;)m/.

At hand; ready for use. Et querens sectam habeat ad manum; and the plaintiff

immediately have his suit ready.

Admeasurement lredmezh;)rm;)nt/ .

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.

A common law 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.

In English law, a writ which lay between those that had common of pasture

Admeasurement of pasture.

appendant, or by vicinage, in cases where any one or more of them surcharged the common with more cattle than they ought. This remedy has long been abolished in England and in the United States.

A common law remedy which lay against persons who usurped more than their

Admeasurement, writ of.

share, in the two following cases: Admeasurement of dower, and admeasurement of pasture.

Ad medium filum aqure Ired miydiy;)m fayl;)m rekwiy/. To the middle thread of the stream. See Ad filum aqure.

Ad medium filum vire I red miydiy;)m fayl;)m vayiy I. the middle thread of the way.

Ad melius inquirendum I red miyliy;)s inkw;)rend;)m/.

A writ directed to a coroner commanding him to hold a second inquest.

Admensuratio lredmensy;)reysh(iy)ow/ . law, admeasurement.

In old English

Adminicle I redmin;)k;)l/.

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.

See Adminiculum.

Adminicular I redm;)niky;)l;)r I.

Auxiliary or subordinate to. "The murder would be adminicular to the robbery" (i. e., committed to accomplish it).

Adminicular evidence lredm;)niky;)br evid;)ns/.

Auxil

iary or supplementary evidence; such as is presented for the purpose of explaining and completing other evi dence. (Chiefly used in ecclesiastical law.)

Adminiculate I redm;)niky;)leytl . evidence.

To give adminicular

Adminiculator I redm;)niky;)leyt;)r I.

An officer in the Roman Catholic Church who administered to the wants of widows, orphans, and afflicted persons.

Adminiculum I redm;)niky;)l;)m/.

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 ad duced in aid or support of other evidence, which without it is imperfect.

To manage or conduct. Glocksen v. Holmes, 299 Ky. 626, 186 S.W.2d 634, 637. To discharge

Administer.

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 distrib ute the estate of a decedent.

to direct or cause to be taken.

Also, to give, as an oath;

To "administer" a decree is to execute it, to enforce its provisions, to resolve conflicts as to its meaning, to construe and to interpret its language. U. S. v. Hennen, D.C.Nev., 300 F.Supp. 256, 263. To "administer" trusts is to manage, direct or superin

tend affairs of such trusts.

Wisconsin Dept. of Taxation

v. Pabst, 15 Wis.2d 195, 1 12 N.W.2d 161, 164, 165.

To apply, as medicine or a remedy; to give, as a dose

of something beneficial or suitable. Barfield v. State, 71 Okl.Cr. 195, 1 10 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.

Administration. Management or conduct of an office or

employment; the performance of the executive duties of

an institution, business, or the like. 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 opera tions of the various organs or agencies. 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.

Administration expense. Administrative expenses im ply disbursements incidental to the management of the

estate which are deductible in computing estate taxes. Deductions are allowed for such expenses or claims only

to the extent that they "are allowable by the laws of the jurisdiction" under which the estate is being adminis tered.

I.R.C. § 2053.

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 property

Administration letters.

of an intestate.

See Administrator.

The management and set tlement of the estate of an intestate decedent, or of a testator who has no executor, performed under the su pervision of a court, by a person duly qualified and legally appointed, and usually involving: (1) the collec

Administration of estates.

tion of the decedent's assets; (2) payment of debts and claims against the estate; (3) payment of estate taxes;

(4) distribution of the remainder of the estate among those entitled thereto. The administration of an estate runs from the date of an individual's death until all assets have been distributed and liabilities paid.

Such

administration is conducted by an administrator or an executor. See Administrator; Letters of administration. Administration of estates is principally of the follow ing kinds:

ADMINISTRATIVE CRIME

45 To collect the goods of Special letters of administration granted

Ad colligendum bona defuneti. the deceased.

to one or more persons, authorizing them to collect and preserve the goods of the deceased.

Ad prosequendum. An administrator appointed to pros ecute or defend a certain action (e.g. wrongful death) or actions in which the estate is concerned.

Ancillary administration is auxiliary and subordinate to

the administration at the place of the decedent's domi cile; 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 (CTA). 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, are deceased, or refuse to act.

De bonis non (DBN).

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.

De bonis non cum testamento annexo (DBNCTA). That

which is granted when an executor dies leaving a part of the estate unadministered. That which is granted during the absence of the executor and until he has proved the wilL

Durante absentia.

Exists where an infant is made executor, in which case administration with will an

Durante minori retate.

nexed is granted to another during the minority of such executor, and until he shall attain his lawful age to act.

That which is exercised by virtue of authority properly conferred by a foreign pow er.

Foreign administration.

The grant of authority to ad minister upon the entire estate of a decedent, without

General administration.

restriction or limitation, whether under the intestate laws or with the will annexed.

Pendente lite. Administration granted during the pend ency of a suit touching the validity of a will.

Public administration is such as is conducted (in some jurisdictions) by an officer called the public administra tor, who is appointed to administer in cases where the intestate has left no person entitled to apply for letters. Authority to administer upon some few particular effects of a decedent, as opposed to authority to administer his whole estate.

Special administration.

Connotes of or pertains to administra tion, especially management, as by managing or con ducting, directing, or superintending, the execution, ap plication or conduct of persons or things. Fluet v. McCabe, 299 Mass. 173, 12 N.E.2d 89, 93. Particularly,

Administrative.

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 ex reL Van Sickle v. Austin, 20 App.Div. 1, 46 N.Y.S. 526.

Those acts which are necessary to be done to carry out legislative policies and purposes

Administrative acts.

already declared by the legislative body or such as are

devolved upon it by the organic law of its existence. Ex parte McDonough, 27 CaLApp.2d 155, 80 P.2d 485, 487. Administrative adjudication. The process by which an

administrative agency issues an order, such order being affirmative, negative, injunctive or declaratory in form. Adm. Procedure Act, 5 U.S.C.A. § 551 .

Administrative agency.

A governmental body charged

with administering and implementing particular legisla tion. Examples are worker's compensation commis sions, Federal Trade Commission, Hastings Mfg. Co. v.

Federal Trade Commission, C.C.A.6th, 153 F.2d 253,

certiorari denied 328 U.S. 853, 66 S.Ct. 1344, 90 L.Ed. 1626; tax commissions, First State Bank of Mountainair v. State Tax Commission, 40 N.M. 319, 59 P.2d 667;

public service commissions, New York Cent. R. Co. v.

Public Service Commission, 212 Ind. 329, 7 N.E.2d 957;

and the like.

In addition to "agency", such governmen

tal bodies may be called commissions, corporations (e.g. F.D.I.C.), boards, departments, or divisions.

The term "agency" includes any department, indepen

dent establishment, commission, administration, author ity, board or bureau of the United States or any corpora tion in which the United States has a proprietary inter

est, unless the context shows that such term was intend ed to be used in a more limited sense. 18 U.S.C.A. § 1 .

The power o f a n agency or its head to carry out the terms of the law creating the

Administrative authority.

agency as well as to make regulations for the conduct of

business before the agency; distinguishable from legisla tive authority to make laws. Administrative board.

This 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 "admin

istrative" 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 in

terests entrusted to boards, whereas courts are con cerned with litigating rights of parties with adverse

interests.

Rommell v. Walsh, 127 Conn. 16, 15 A.2d 6, 9.

Administrative collateral estoppel.

Principles of this

estoppel doctrine apply when agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which parties have had adequate

opportunity to litigate; threshold inquiry is whether earlier proceeding is essential equivalent of judicial pro ceeding.

City Wide Learning Center, Inc. v. William C.

Smith & Co., Inc., D.C.App., 488 A.2d 1310, 1313.

An offense consisting of a viola tion of an administrative rule or regulation and carrying with it a criminal sanction.

Administrative crime.

ADMINISTRATIVE DETERMINATION Administrative determination.

dication. Administrative deviation.

See Administrative adju.

Departure from the admin

istrative provisions of a trust by the trustee acting alone or with prior approval of the court. land, 232 Ark. 335, 336 S.W.2d 52. Administrative discretion.

Anderson v. Ry

Term 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 office to beliefs, expecta tions, or tendencies instead of facts for the exercise of

the powers conferred. Culver v. Smith, Tex.Civ.App., 74 S.W.2d 754, 757. Administrative exhaustion.

See Exhaustion of adminis

trative remedies. An oral proceeding before an administrative agency consisting of argument or trial or both. Procedural rules are more relaxed at such hear

Administrative hearing.

ings as contrasted with civil or criminal trials; e.g. rules governing admissibility of evidence are usually quite liberal.

See also

Assess; Equalization. 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." While the terms "call" and "assessment" are generally used synonymously, the latter term applies with pecu liar aptness to contributions above the par value of stock or the subscription liability of the stockholders; whereas "call" or "installments" means action of the board of directors demanding payment of all or portion of unpaid subscriptions. Fixing the amount of damages to which the successful party in a suit is entitled after 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 in satisfaction of the demand proved or the value taken.

To ascertain; fix the value of. To fix the amount of the damages or the value of the thing to be ascertained. To impose a pecuniary payment upon per sons or property. 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. To tax

Damages.

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. 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. To calculate the rate and amount of taxes. To levy a charge on the owner of property for improve ments thereto, such as for sewers or sidewalks.

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.

"Access" is sometimes used as synonymous with "levy".

See also Assessment. Assessable insurance.

Insurance policy under which insured is liable for additional premium if losses are unusually large.

Assessable stock.

Stock where the stockholder may have to pay more than his original investment if corpo rate affairs so require.

Assessed. Term is equivalent to "imposed." To value or

appraise. Abrams v. City and County of San Francisco, 48 Cal.App.2d 1, 1 19 P.2d 197, 199. Assessed valuation.

Value on each unit of which a prescribed amount must be paid as property taxes. The worth or value of property established by taxing author ities on the basis of which the tax rate is applied. Commonly, however, it does not represent the true or market value of the property.

Assessment.

In a general sense, the process of ascer taining and adjusting the shares respectively to be con tributed by several persons towards a common beneficial object according to the benefit received. A valuation or a determination as to value of property. It is often used in connection with assessing property taxes or levying of

Insurance. An apportionment made in general average

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. The periodical demands made by a mutual insurance company, under its charter and by-laws, upon the mak ers of premium notes, are also denominated "assess ments." Meaning "premiums," Ancient Order of Unit ed Workmen of Kansas v. Hobbs, 136 Kan. 708, 18 P.2d 561, 562; and being the consideration for the insurance contracts. An assessment in the nature of a tax levied upon property according to benefits conferred on the property. Davies v. City of Lawrence, 218 Kan. 551, 545 P.2d 1115, 1120. A levy upon the owners of property adjacent to a public improvement (e.g., side walks) to defray the capital cost thereof. A tax, intend ed to offset cost of local improvements such as sewer, water and streets, which is selectively imposed upon beneficiaries. Dosedel v. City of Ham Lake, Minn.App., 414 N.W.2d 751, 755. It differs from a general tax in that it is levied fc 1 specific purpose and in an amount proportioned to l.he direct benefit of the property as sessed. City of Plymouth v. Elsner, 28 Wis.2d 102, 135 N.W.2d 799, 803.

Special · assessment.

Persons convicted of federal crimes are required to pay special assessments under 18 U.S.C.A. § 3013.

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. Simikins v. City of Spartanburg, 269 S.C. 243, 237 S.E.2d 69, 70. Also determining the share of a tax to be paid by each of many persons; or apportioning the entire tax

1 17 to be levied among the different taxable persons, estab lishing the proportion due from each. Northwestern Imp. Co. v. Henneford, 184 Wash. 502, 51 P.2d 1083, 1085. It fixes the liability of the taxpayer and ascer tains 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. The process whereby the Internal Revenue Service imposes an additional tax liability. If, for example, the IRS audits a taxpayer's income tax return and finds gross income understated or deductions overstated, it will assess a deficiency in the amount of the tax that should have been paid in light of the adjustments made.

See also, Deficiency; Deficiency assessment; Jeopardy assessment. Assessment base.

Total assessed value of all property in an assessment district.

Assessment company.

In life insurance, a company in which a death loss is met by levying an assessment on the surviving members of the association.

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. See also Assessment insurance. Assessment district.

In taxation, any subdivision of territory, whether the whole or part of any municipali ty, in which by law a separate assessment of taxable property is made by the officers elected or appointed therefor.

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 Assessment.

Assessment fund.

The assessment fund of a mutual benefit association is the balance of the assessments, less expenses, out of which beneficiaries are paid.

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. Type of mutual insurance where the policyhold ers are assessed whenever there is a loss.

Assessment list.

The list of taxable persons and proper ty furnished by the assessor to the board of equalization, board of assessment, or similar body. See Assessment

roll. Assessment period.

Means taxable period. Johnson City v. Clinchfield R. Co., 163 Tenn. 332, 43 S.W.2d 386, 387.

Assessment ratio.

For purposes of taxation of property is the ratio of assessed value to fair market value. Campbell Chain Co. of Cal. v. Alameda County, 12 C.A.3d 248, 90 Cal.Rptr. 501, 504.

Assessment roll.

In taxation, the list or roll of taxable persons and property, completed, verified, and deposited by the assessors.

ASSETS Assessment work.

Under the mining laws of the Unit ed 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. 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. A person learned in some particular science or industry, who sits with the judge on the trial of a cause requiring such special knowledge and gives his advice.

Asset Depreciation Range (ADR).

The range of depre ciable lives allowed by the Internal Revenue Service for a specified depreciable asset. The ADR system applies to assets placed in service after 1970 and before 1980, at which time the ADR system was replaced by the Accel erated Cost Recovery System (ACRS). However, the ADR system has been revived under The Tax Reform Act of 1986 and is now used to assign class lives to assets depreciated under Modified Accelerated Cost Recovery System (MACRS). See Accelerated Cost Recovery Sys

tem. Asset dividend.

See Dividend.

Assets / resets/.

Property of all kinds, real and personal, tangible and intangible, including, inter alia, for certain purposes, patents and causes of action which belong to any person including a corporation and the estate of a decedent. The entire property of a person, association, corporation, or estate that is applicable or subject to the payment of his or her or its debts.

See also Dead asset; Marshalling assets. Accrued assets.

Assets arising from revenues earned

but not yet due.

Assets entre mains. L. Fr. Assets in hand; assets in the hands of executors or administrators, applicable for the payment of debts.

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.

Bankruptcy. The property or effects of debtor in bank ruptcy proceedings available for payment of his debts.

Capital assets. For income tax purposes, a capital asset is defined as all property held by a taxpayer (e.g. house, car, stocks, bonds), except for certain assets listed in I.R.C. § 1221. Under the tax laws however, a given asset may be treated as a capital asset for one purpose, and as an ordinary asset for another. Broadly speaking, all assets are capital except those specifically excluded by Internal Revenue Code. Major categories of non-capital assets include: property held for resale in the normal course of business (i.e. invento ry), trade accounts and notes receivable, depreciable property and real estate used in a trade or business (i.e. I.R.C. "§ 1231 assets"). I.R.C. § 1221.

ASSETS

1 18

Commercial assets.

The aggregate of available property,

or an appeal to conscience, whereas by an oath one

stock in trade, cash, etc., belonging to a merchant or

appeals to God as a witness of the truth of what one says.

mercantile company.

Current assets.

Assets readily convertible into cash,

e.g.

marketable securities, notes, inventories, accounts re ceivable.

See also

Personal effects. 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 capaci ty, to discharge.

Quick assets.

Accounting term used to describe cash

and receivables, including notes and sometimes market able securities, which will be converted into cash as part of normal operations.

Real assets.

See also

Confirmation. Confirmare est id firmum facere quod prius infir mum fuit Ikonf;)rmeriy est id f;}rm;)m feys;)riy kwod

pray;)s ;)nf;}rm;)m fyuw;)t/. To confirm is to make firm that which was before infirm. Confirmare nemo potest prius quam jus ei acciderit

Ikonf;)rmeriy niymow powt;)st pray;)s kwrem j;}S iyay reks;)der;)t/ . No one can confirm before the right ac crues to him. Confirmatio Ikonf;)rmeysh(iy)ow/ .

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 some other estate therein, where by a voidable estate is made sure and unavoidable, or whereby a particular estate is increased or enlarged. 2 Bl.Comm. 32l;>.

ConiIrmatio·chartarum Ikonf;)rmeysh(iy)ow kartar;)m/.

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. crescens Ikonf;)rmeysh(iy)ow kres;)nz/. An enlarging confirmation; one which enlarges a right ful estate.

Confirmatio

Confirmatio diminuens Ikonf;)rmeysh(iy)ow d;)minyu

wenzl. A diminishing confirmation. A confirmation which tends and serves to diminish and abridge the services whereby a tenant doth hold, operating as a release of part of the services. Confirmatio est nulla ubi donum prrecedens est inva lidum Ikonf;)rmeysh(iy)ow est n;}l;) yuwbay down;)m

pr;)siyden(d)z est invrel;)d;)m/. Confirmation is void where the preceding gift is invalid. 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. To give formal approval. Act or process of confirming.

Confirmation.

See also Approval; Ratification; Verification. A conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or where by a particular estate is increased. The ratification or approval of executive acts by a legislature or one house. In order to be valid, Presi dential appointments of important officers of the United States require approval by a majority of the Senate, and treatises must be approved by two-thirds of the Senate. Art. II, § 2, U.S.Const. A formal memorandum delivered by the customers or suppliers of a company to its independent auditor verify ing the amounts shown as receivable or payable. The

299

CONFLICT OF LAWS

confirmation document is originally sent by the auditor to the customer. In bankruptcy, refers to a judicial approval of a Bank ruptcy Code Chapter 11, 12, or 13 plan. 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) or the court's approval of the terms, price, and conditions of the sale.

Confirmation of sale.

Confirmatio omnes supplet defectus, licet id quod actum est ab initio non valuit Ikonf;}rmeysh(iy)ow

6mniy s�pbt d;}fekt;}s, lis;}t id kwod rekt;}m est reb ;}nish(iy)ow non vrelyuw;}t/. Confirmation supplies all defects, though that which had been done was not valid at the beginning. Ikonf;}rmeysh(iy)ow p;}fishi yenz/. A confirmation which makes valid a wrongful and defeasible title, or makes a conditional estate abso lute.

Confirmatio

perficiens

Confirmat usum qui tollit abusum Ikonf�rm;}t yuwz;}m

kwliy t6bt ;}byuwz;}m/. He confirms the use [of a thing] who removes the abuse [of it]. Confirmavi Ikonf;}rmeyviy I.

Lat. I have confirmed. The emphatic word in the ancient deeds of confirmation. In commercial law, means that the credit must carry the direct obligation of an agency which does business in the seller's financial market. U.C.C. § 2-325.

Confirmed credit.

Confirmee Ikonf;}rmiy I.

The grantee in a deed of confir

mation. A bank which engages either that it will itself honor a credit already issued by another bank or that such a credit will be honored by the issuer or a third bank. U.C.C. § 5-103.

Confirming bank.

Confirmor Ik;}nfirm;}r/.

The grantor in a deed of confir

mation. Confiscable Ik6nfisk;}b;}lIk;}nfisk;}b;}1I. Capable of being

confiscated or suitable for confiscation; liable to forfei ture. Confiscare Ikonf;}skeriy/.

In civil and old English law, to confiscate; to claim for or bring into the fisc, or treasury.

Confiscate Ik6nf;}skeyt/.

To appropriate property to the use of the government. To adjudge property to be forfeited to the public; to seize and condemn private forfeited property to public use. To take property from enemy in time of war. See also Confiscation; Forfeiture.

Confiscation Ikonf;}skeysh;}n/. Act of confiscating. The

seizure of private property by the government without compensation to the owner, often as a consequence of conviction for crime, or because possession or use of the property was contrary to law. The provisions of due process prohibit the confiscation of property without compensation except where the property is taken in the valid execution of the police power. See also Condemna-

tion; Confiscate; Eminent domain; Expropriation; Forfei ture; Seizure.

Certain acts of congress enacted during the process 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 pur poses".

Confiscation acts.

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 confisca tion acts of congress. Reported in 7 Wall. 454, 19 L.Ed. 196.

Confiscation cases.

With respect to utilities, are rates which do not afford a reasonable return on value of property at time it is used in public service; rates which do not afford net return sufficient to preserve utility's property and to attract capital necessary to enable utili ty to discharge its public duties.

Confiscatory rates.

Confisk.

An old form of confiscate.

Confitens reus Ik6nf;}tenz riy;}s/.

An accused person

who admits his guilt. Evidence offered by plaintiff and defendant, or prosecutor and defendant which is incon sistent and cannot be reconciled.

Conflicting evidence.

A division between two or more courts (generally courts of last resort) on some legal principal or application of law. May also refer to dis parity between authorities on a subject. See also Choice

Conflict of authority.

of law; Conflict of laws.

Term used iri connection with public officials and fiduciaries and their relationship to matters of private interest or gain to them. Ethical problems connected therewith are covered by statutes in most jurisdictions and by federal statutes on the federal level. The Code of Professional Responsibility and Mod el Rules of Professional Conduct set forth standards for actual or potential conflicts of interest between attorney and client. Generally, when used to suggest disqualifi cation of a public official from performing his sworn duty, term "conflict of interest" refers to a clash be tween public interest and the private pecuniary interest of the individual concerned. Gardner v. Nashville Housing Authority of Metropolitan Government of Nashville and Davison County, Tenn., C.A.Tenn., 514 F.2d 38, 41. A situation in which regard for one duty tends to lead to disregard of another. U.S. v. Miller, C.A.Mass., 463 F.2d 600, 602.

Conflict of interest.

A conflict of interest arises when a government em ployee's personal or financial interest conflicts or ap pears to conflict with his official responsibility. 18 U.S.C.A. § 203 et seq. Inconsistency or difference between the laws of different states or countries, arising in the case of persons who have acquired rights, incurred obli gations, injuries or damages, or made contracts, within

Conflict of laws.

CONFLICT OF LAWS the territory of two or more jurisdictions. Hence, that branch of jurisprudence, arising from the diversity of the laws of different nations, states or jurisdictions, in their application to rights and remedies, which recon ciles 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. Restatement, Second, Conflicts of Law, § 2. See also Center of gravity doctrine; Choice of law; Grouping of contacts; Kilberg doctrine; Lex celebra tionis; Lex contractus; Lex fori; Lex loci; Lex loci celebra tionis; Lex loci contractus; Lex situs; Lex solutionis; Lex validitatis; Renvoi doctrine.

Term used to describe con flicts within a particular state arising from application of general law to racial and religious groups which have their own laws, e.g. tribal laws of the Indians.

Conflict of personal laws.

An exact copy of a document on which has been written explanations of things that could not or were not copied; e.g. written signature might be replaced on conformed copy with notation that it was signed by the person whose signature appears on the originaL

Conformed copy.

In law of sales, goods or conduct including any part of a performance are conforming or conform to the contract when they are in accordance with the obligations under the contract. U.C.C. § 2-106(2).

Conforming.

In zoning and land use planning, a use of a structure which is in conformity with those uses permitted by the particular zoning classification of the area. Compare Nonconforming use.

Conforming use.

Correspondence in form, manner, or use; agreement; harmony; congruity.

Conformity.

A term used to designate Act June 1, 1872, c. 255, § 5, 17 Stat. 197, providing that the practice, pleadings, and forms and modes of proceed ing in civil causes, other than equity and admiralty causes, in the federal district 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. Hydraulic Press Mfg. Co. v. Williams, White & Co., C.C.A.Ill.1947, 165 F.2d 489.

Conformity Act, or statute.

Conformity, Bill of. See Bill (Equity pleading and prac

tice). Hearing ordered by court to de termine whether judgment or decree directed to be prepared by the prevailing party conforms with decision of court. Commonly after court makes its findings it directs prevailing party to draw judgment or decree in conformity with such findings and decision.

Conformity hearing.

Confrairie /konfreriy/k.�mfreriy/.

Fr. In old English law, a fraternity, brotherhood, or society.

300 Confreres Ikonfrerz/k;mfrerz/.

Brethren in a religious house; fellows of one and the same society.

In criminal proceedings, the accused has a right to be "confronted with the witnesses against him." This Sixth Amendment right consists of the act of setting a witness face to face with the accused, in order that the latter may make any objection he has to the witness, or that the witness may identify the ac cused; and, does not mean merely that witnesses are to be made visible to the accused, but imports the constitu tional privilege to cross-examine them. In fact, the essence of the right of confrontation is the right to cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1 105, 39 L.Ed.2d 347. A disruptive defendant may, however, lose his right to be present in the courtroom, and, as a result, lose his right to confront witnesses. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353.

Confrontation.

Confrontation clause.

See Confrontation.

Confusio Ik:mfyuwz(h)(i)yow/.

In the civil law, the in separable intermixture of property belonging to differ ent owners; it is properly confined to the pouring to gether 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 BLComm. 405.

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. To mix or blend so that things cannot be distinguished. Spangler Candy Co. v. Crystal Pure Candy Co., D.C.IlL, 235 F.Supp. 18, 27. The mixing together of goods of two or more owners so that the independent goods cannot be identified. See also Commingle.

Confusion.

The title of that branch of equity jurisdiction which relates to the discovery and settlement of conflicting, disputed, or uncertain bound aries.

Confusion of boundaries.

Confusion of debts. An obsolete term which refers to 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 be comes 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. Results when goods belonging to two or more owners become intermixed to the point where the property of any of them no longer can be identified except as part of a mass of like goods. John son v. Covey, 1 Utah 2d 180, 264 P.2d 283. See also

Confusion of goods.

Commingle. A union of the qualities of debtor and creditor in the same person. The effect of such a

Confusion of rights.

CONJECTIO CAUSlE

30 1

union is, generally, to extinguish the debt. Baylor Univ ersity v. Bradshaw, Tex.Civ.App., 52 S.W.2d 1094, 1101. 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.

Confusion of titles.

Confute Ik:mfyuwt/.

To prove to be false, defective, or

invalid. A swindle or any arrangement in which a person is deliberately defrauded because of his trust in the one who is swindling. See also Confidence game;

Con game.

Flim-flam. Conge 1 konjey/konzhey I.

Fr. In French law, permis sion, leave, license; a passport or clearance to a vessel; a permission to arm, equip, or navigate a vessel.

Congeable Ikonjiy;}b;}l/.

L. Fr.

Lawful; permissible;

allowable. Conge d'accorder Ikonzhey dakordey I.

Leave to ac cord. A permission granted by the court, in the old process of levying a fine, to the defendant to agree with the plaintiff.

Conge d'emparler Ikonzhey domparley I.

Leave to im parl. The privilege of an imparlance aicentia loquendi}. 3 Bl.Comm. 299.

Conge d'eslire Ikonzhey delir/.

Also spelled conge d'elire, conge delire. 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.

Congenital.

A condition present at birth.

Congildones Ikol)gildowniyz/.

In Saxon law, fellow

members of a guild. Congius Ikonjiy;}s/.

An ancient measure containing about a gallon and a pint.

Conglomerate Ik;}nglom;}r;}t/.

A corporation that has diversified its operations usually by acquiring unrelated enterprises in widely varied industries. Such individual businesses are normally controlled by a single corporate entity. Merger among firms which op erate in separate and distinct markets; e.g. merger of companies with different product lines. A merger in which there are no economic relationships between the acquiring and the acquired firm. Kennecott Copper Corp. v. F. T. C., C.A.lO, 467 F.2d 67, 75. A combination of two or more companies in which neither competes directly with the other and no buyer-seller relationship exists. A merger other than a horizontal or vertical merger. U. S. v. International Tel. & Tel. Corp., D.C. Conn., 306 F.Supp. 766, 774. See also Conglomerate;

Conglomerate merger.

Merger. Congregate.

To come together; to assemble; to meet.

An assembly or gathering; specifically, an assembly or society of persons who together consti tute the principal supporters of a particular parish, or

Congregation.

habitually meet at the same church for religious exercis es. Congress 1 kOl)gr;}s 1 .

Formal meeting of delegates or representatives. The Congress of the United States was created by Article I, Section 1, of the Constitution, adopted by the Constitutional Convention on September 17, 1787, providing that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The first Congress under the Consti tution met on March 4, 1789, in the Federal Hall in New York City. The membership then consisted of 20 Sena tors and 59 Representatives. See House of Representa tives; Senate.

Congressional

apportionment.

See

Apportionment

(Representatives). A committee of the House of Representatives or of the Senate or a joint committee formed for some particular public purpose.

Congressional committee.

A geographical unit of a State from which one member of the House of Representatives is elected.

Congressional district.

Congressional immunity. See Legislative immunity.

The authority vested in the Senate and House of Representatives to enact laws, etc. as provided in U.S.Const., Art. I.

Congressional powers.

Proceedings of Congress are published in the Congressional Record, which is issued daily when Congress is in session. Publication of the Record began March 4, 1873; it was the first series officially reported, printed, and published directly by the Federal Government. The Daily Digest of the Congres sional Record, printed in the back of each issue of the Record, summarizes the proceedings of that day in each House, and before each of their committees and subcom mittees, respectively. The Digest also presents the legis lative program for each day, and at the end of the week, gives the program for the following week. Its publica tion was begun March 17, 1947. Members of Congress are allowed to edit their speeches before printing and may insert material never actually spoken by securing from their respective houses leave to print or to extend their remarks.

Congressional Record.

Congressman. Strictly, a member of the Congress of the

United States. But the common tendency is to apply this term only to a member of the House of Representa tives, as distinguished from a senator. Congressus Ik;}l)gres;}s/.

The extreme practical test of the truth of a charge of impotence brought against a husband by a wife. It is now disused.

Conjectio Ik;}njeksh(iy)ow/.

In the civil law of evidence, a throwing together. Presumption; the putting of things together, with the inference drawn therefrom.

Conjectio causa! Ik;}njeksh(iy)ow koziy/.

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.

CONJECTURAL CHOICE, RULE OF

302

of Iruwl �v k�njekch�r�l choys/. Where all theories of causation rest only on conjecture, no jury question is presented.

Conjectural choice, rule

A slight degree of credence, arising from evidence too weak or too remote to cause belief. Suppo sition or surmise. The idea of a fact, suggested by another fact; as a possible cause, concomitant, or result. 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. In popular use, synonymous with "guess." Also, the bringing together of the circumstanc es, as well as the result obtained.

Conjecture.

Conjoint robbery.

Where the act is committed by two

or more persons. Conjoints.

Persons married to each other.

Conjudex IkonjuwdeksI .

In old English law, an associ

ate judge. Conjugal Ikonj�g�l/.

Conjuratio Ikonj�reysh(iy)ow/.

In old English law, a swearing together; an oath administered to several to gether; a combination or confederacy under oath. 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.

Conjuration Ikonj�reysh�n/.

In old English law, a plot or compact made by persons combining by oath to do any public harm.

The offense at common law of having conference or commerce with evil spirits, in order to discover some secret, or effect some purpose. The English Witchcraft Act of 1735, which made conjuration an offense, was repealed by the Fraudulent Mediums Act of 1951. Conjurator Ikonj�reyt�r/.

In old English law, one who swears or is sworn with others; one bound by oath with others; a compurgator; a conspirator.

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.

Connect.

Of or belonging to marriage or the married state; suitable or appropriate to the married state or to married persons; matrimonial; connubial.

Connected.

Matrimonial rights; the right which husband and wife have to each other's society, comfort, and affection. See Consortium.

Connecting carrier.

Conjugal rights.

Conjugium Ik�njuwjiy�m/ .

One of the names of mar

riage, among the Romans. Conjuncta Ik�nj�IJkt�/.

In the civil law, things joined together or united; as distinguished from disjuncta, things disjoined or separated.

Conjunctim Ik�nj�IJkt�m/.

Lat.

In old English law,

jointly. L.

Lat. In old English law, jointly and severally. Conjunctio Ik�nj�IJksh(iy)ow/.

In the civil law, conjunc tion; connection of words in a sentence.

Conjunctio mariti et feminre est de jure naturre

Ik�nj�IJksh(iy)ow m�rayty �t fem�niy est diy juriy n�tyuriy I. The union of husband and wife is . of the law of nature. 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," con junction. Where several material facts are stated conjunctively in the complaint, an answer which undertakes to deny their averments as a whole, conjunc tively stated, is called a "conjunctive denial."

Conjunctive denial.

Conjunctive obligation Ik:mj�IJkt�v obl�geysh�n/. See Obligation.

One of several common carriers whose united lines or parts constitute the route over which shipment is to pass, and which participates in transportation of such shipment as a common carrier furnishing a necessary link in transportation. Herman v. Railway Exp. Agency, 17 N.J.Super. 10, 85 A.2d 284. In conflict of laws, legal categories such as the place of making a contract which serve to determine the choice of law in a particular case.

Connecting factors.

A thing may be put into evidence (including testimony) subject to its being con nected up with later evidence that will show its rele vance.

Connecting up doctrine.

Conjunctim et divisim Ik�nj�IJkt�m et d�viz�m/.

Conjunctive.

Joined; united by junction, by an interven ing substance or medium, by dependence or relation, or by order in a series.

The state of being connected or joined; union by junction, by an intervening substance or medi um, by dependence or relation, or by order in a series.

Connection.

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.

Connections.

Connexite Ikoneksiytey/.

In French law, this exists when two actions are pending which, although not iden tical as in lis pendens, are so nearly similar in object that it is expedient to have them both adjudicated upon by the same judges.

Nexus or connection; for purposes of ac quiring personal jurisdiction over a foreign corporation, this refers to the requirement that the cause of action arise out of the transaction or operation connected with

Connexity.

303

CONSCIENCE

or incidental to the activities of a foreign corporation in the state. Kravitz v. Gebrueder Pletscher Druck-Gus swaremfabrik, Fla.App. 3 Dist., 442 So.2d 985, 987. Connivance Ik:mayv:m(t)s/.

The secret or indirect con sent or permission of one person to the commission of an unlawful or criminal act by another. 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. As constituting defense in divorce action, is plaintiffs corrupt consent, express or implied, to offense charged against defendant. Muir v. Muir, Del.Super., 7 Terry 578, 86 A.2d 857, 858. This defense has been abolished by many states with the enactment of no-fault divorce laws.

Connive Ik:mayv I.

To co-operate secretly with, or to have a secret or clandestine understanding with. To take part or co-operate privily with another, to aid or abet. To look upon with secret favor; it implies both knowledge and assent, either active or passive. See Connivance.

Connoissement Ikoneysmon/.

In French law, an in strument, 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.

Connubium Ik:m(y)uwbiy;}m/.

In the civil law, mar riage. Among the Romans, a lawful marriage as distin guished from "concubinage" (q. v.), an inferior marriage.

Conocimiento Ikonosiym(i)yentow/.

In Spanish law, a bill of lading. In the Mediterranean ports it is called "poliza de cargamiento. " In Spanish law, a recognizance.

Conpossessio Ikomp;}zesh(iy)ow/.

In civil law, a joint

possession. Conquereur IkoIJk;}r;}r/.

In Norman and old English law, the same as "conqueror" (q. v.).

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.

Conqueror.

Conquest IkoIJkwest/.

In feudal law, acquisition by purchase; any method of acquiring the ownership of an estate other than by descent. Also an estate acquired otherwise than by inheritance.

In international law, the acquisition of the sovereignty of a country by force of arms, exercised by an indepen dent power which reduces the vanquished to the submis sion of its empire. To conquer a territory or nation by means of force. IkOIJkwest;}rIkonkwest;}rI. The title given to William of Normandy.

Conquestor

Conquets Ik;}IJkwests/k;}nkets/.

Conqueror.

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. In Louisiana, these gains are called acquets. Conquisitio IkoIJkw;}zish(iy)ow/.

lish law, acquisition.

In feudal and old Eng 2 Bl.Comm. 242.

Conquisitor Ik;}IJkw;}zayt;}r/.

er, acquirer, or conqueror.

In feudal law, a purchas 2 Bl.Comm. 242, 243.

Consanguineus Ikons;}IJgwiniy;}s/.

Lat. A person relat ed by blood; a person descended from the same common stock.

Consanguineus

est

quasi

eodem

sanguine

natus

Ikons;}IJgwiniy;}s est kweysay iyowd;}m sreIJgw;}niy neyt;}s/. A person related by consanguinity is, as it were, sprung from the same blood. Consanguineus frater Ikons;}IJgwiniy;}s freyt;}r I.

In civ il and feudal law, a half-brother by the father's side, as distinguished from {rater uterinus, a brother by the mother's side. 2 Bl.Comm. 23l.

Consanguinity IkonsreIJgwin;}diyI.

Kinship; blood rela tionship; the connection or relation of persons descend ed from the same stock or common ancestor. Consan guinity is distinguished from "affinity," which is the connection existing in consequence of a marriage, be tween each of the married persons and the kindred of the other.

Lineal and collateral consanguinity. Lineal consanguin ity 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 up wards in the direct ascending line; or between son, grandson, great-grandson, and so downwards in the di rect 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 son are related by lineal consanguinity, uncle and nephew by collateral sanguini ty. Conscience. The moral sense; the faculty of judging the

moral qualities of actions, or of discriminating between right and wrong; particularly applied to one's percep tion and judgment of the moral qualities of his own conduct, but in a wider sense, denoting a similar applica tion 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 con science being a synonym of equity. In law, especially the moral rule which requires probity, justice, and hon est 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."

CONSCIENCE, COURTS OF In English law, 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." Such courts have been superseded by county courts.

Conscience, courts of.

When an issue is sent out 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 V.S. 247, 25 L.Ed. 826. This procedure is now obsolete with the merger of law and equity into a single cause of action.

Conscience of the court.

304

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.

Consecrate.

Consecratio

est

periodus

electionis;

Successive; succeeding one another in regular order; to follow in uninterrupted succession.

Consecutive.

When one sentence of confine ment is to follow another in point of time, the second sentence is deemed to be consecutive. May also be applied to suspended sentences. Also called "from and after" sentences. See also Sentence.

Consecutive sentences.

Concedo Ikonseyoow I.

Conscientia dicitur a con et scio, quasi scire cum deo

Conseil de famille Ikonsey d;) famiy I.

Ikons(h)iyensh(iy);) dis;)t;)r ey kon et sayow, kweysay sayriy k;}m diyow I. Conscience is called from con and scio, to know, as it were, with God. One who, by reason of reli gious training and belief, is conscientiously opposed to participation in war. Such person need not be a mem ber of a religious sect whose creed forbids participation in war to be entitled to classification as a conscientious objector. V. S. v. Bowles, C.C.A.N.J., 131 F.2d 818. It is sufficient if such person has a conscientious scruple against war in any form. V. S. ex reL Phillips v. Downer, C.C.A.N.Y., 135 F.2d 521, 524, 525. Such objec tion must however be shown to be sincere. V. S. v. Miller, D.C.N.D., 337 F.Supp. 1402, 1403. In lieu of active military service, such person is subject to civilian work contributing to the national health, safety or inter est. 50 V.S.C.A. App. § 456(J).

Conscientious objector.

Refers to the situation al leged to result in markets where there are few sellers and where, although lacking in an express agreement, the sellers appear to establish their prices in a "con sciously parallel" fashion; also known as the "interde pendence theory" of oligopoly pricing. Shapiro v. Gen eral Motors Corp., D.C.Md., 472 F.Supp. 636, 647.

Conscientious parallelism.

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 con science 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.

Conscientious scruple.

est

riyowd;)s ;)lekshiyown;)s; ;)leksh(iy)ow est priyremby;)l;) kons�kreyshiyown�s/. Consecration is the termination of election; election is the preamble of consecration.

Conscience, right of.

As used in some constitutional provisions, this phrase is equivalent to religious liberty or freedom of conscience.

electio

prreambula consecrationis Ikons�kreysh(iy)ow est pi

Sp. A term used in conveyances under Mexican law, equivalent to the English word "grant."

In French law, a family counciL Certain acts require the sanction of 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 Ikonsey d;) pruwdom/.

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 200(. Beyond that amount, appeals lie to the tribunals of commerce.

Conseil d'etat Ikonsey deyta/.

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 Cabi net, and by Parliament.

Conseil judiciaire Ikonsey zhudis(i)yer/.

In French law, when a person has been subjected to an interdiction on the ground of his insane extravagance, but the interdic tion is not absolute, but limited only, the court of first instance, which grants the interdiction, appoints a coun cil, 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.

contract Ik;)nsenshuw�l kontrrekt/. 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. See also Contract.

Consensual

Consensual marriage Ik:msenshuw�l mrer�j/.

Marriage resting simply on consent per verba de prresenti be tween competent parties. See also Common-law mar ,

Compulsory enrollment and induction into military service; drafted.

Conscription.

riage.

305

Consensus ad idem Ik:msens;)s red ayt;)m/. An agree ment of parties to the same thing; a meeting of minds. Consensus est voluntas plurium ad quos res pertinet, simul juncta Ik;)nSEmS;)S est v;)l;}ntres phiriy;)m red kwows riyz p;}rt;)n;)t, saym;)l j;}IJkt;)I . Consent is the conjoint will of several persons to whom the thing be longs. Consensus facit legem Ik;)nsens;)s feys;)t liyj;)m/. Con sent makes the law. (A contract is law between the parties agreeing to be bound by it.) Consensus, non concubitus, facit nuptias vel matri monium, et consentire non possunt ante annos nu biles Ik;)nsens;)s, non k;)nkyuwb;)t;)s, feys;)t nepshiy;)s vel mretr;)mown(i)y;)m, et kons;)ntayriy non pos;)nt rentiy renows n(y)uwb;)liyz/. Consent, and not cohabitation (or coition), constitutes nuptials or marriage, and persons cannot consent before marriageable years. 1 Bl.Comm. 434. Consensus tollit errorem Ik;)nsens;)s tol;)t ;)ror;)m/. Consent (acquiescence) removes mistake. Consensus voluntas multorum ad quos res pertinet, simul juncta Ik;)nsens;)s v;)l;}ntres m;)ltor;)m red kwows riyz p;}rt;)n;)t saym;)l j;}IJkt;)I . Consent is the united will of several interested in one subject-matter. Consent. A concurrence of wills. Voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith. Agreement; approval; permis sion; the act or result of coming into harmony or accord. Consent is an act of reason, accompanied with delibera tion, the mind weighing as in a balance the good or evil on each side. It means voluntary agreement by a per son in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another. It supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers. Consent is implied in every agreement. It is an act unclouded by fraud, duress, or sometimes even mistake. Willingness in fact that an act or an invasion of an interest shall take place. Restatement, Second, Torts, § lOA. 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. 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. 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". See also Acquiescence; Age of consent; Assent; Conni vance; Informed consent.

Consent decree. See Decree. Consent dividend. See Dividend. Consent judgment. See Judgment. Express consent. That directly given, either viva voce or in writing. It is positive, direct, unequivocal consent,

CONSENT RULE requiring no inference or implication to supply its mean ing. Pacific Nat. Agricultural Credit Corporation v. Hagerman, 40 N.M. 116, 55 P.2d 667, 670.

Express or implied consent. Under motor vehicle liabili ty 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 "opera tion", but the word "responsible", and imply possession of vehicle with consent of owner and responsibility to him. Implied consent. That manifested by signs, actions, or facts, or by inaction or silence, which raise a presump tion or inference that the consent has been given. An inference arising from a course of conduct or relation ship between the parties, in which there is mutual acquiescence or a lack of objection under circumstances signifying assent. Allstate Ins. Co. v. State Farm Mutu al Automobile Ins. Co., 260 S.C. 350, 195 S.E.2d 711, 713 (use of motor vehicle). For example, when a corporation does business in a state it impliedly consents to be subject to the jurisdiction of that state's courts in the event of tortious conduct, even though it is not incorpo rated in that state. Most every state has a statute implying the consent of one who drives upon its highways to submit to some type of scientific test or tests measuring the alcoholic content of the driver's blood. In addition to implying consent, these statutes usually provide that if the result of the test shows that the alcohol content exceeds a specified percentage, then a rebuttable presumption of intoxication arises.

Consentible lines Ik;)nsent;)b;)l laynz/. See Line. Consentientes et agentes pari prena plectentur Ik;)nsenshiyentiyz et ;)jentiyz preriy piyn;) plek tent;)r/. They who consent to an act, and they who do it, shall be visited with equal punishment. Consentire matrimonio non possunt infra [ante] an nos nubiles Ikonsentayriy mretr;)mowniyow non pos;)nt infr;) [rentiy] renows nyuwb;)liyz/. Parties cannot con sent to marriage within the years of marriage [before the age of consent]. Consent judgment. See Judgment. Consent jurisdiction. Parties may agree in advance to submit their controversy to a given forum, in which case the forum is the consent jurisdiction. Consent of victim. The submission of a victim is gener ally no defense to a crime unless, as in the case of rape, the victim's consent negatives an element of the crime itself. 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.

CONSENT SEARCH

306

A search made by police after the subject of the search has consented; such consent, if freely and intelligently given, will validate a warrant less search. Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812. Consent is not freely and voluntarily given in the face of colorably lawful coercion, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920; and questions regarding duress or coercion in a consent search are determined by the totality of the circumstances. United States v. Menden hall, 466 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497. See 18 U.S.C.A. § 2236.

Consent search.

Agreement in advance to be sued in a particular form. See Cognovit judgment; Judgment (Confession ofjudgment).

Consent to be sued.

In documents which treat of the requirement of notice, (e.g. lease) a party may consent to notice beforehand or agree that notice to some other person will satisfy the requirement of notice to him.

Consent to notice.

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. See also Natural and probable consequences.

Consequence.

Consequentire non est consequentia Ikons�kwenshiyiy

non est kons�kwensh(iy)�/. The consequence of a conse quence exists not. The ancient name for what is now known as "constructive" contempt of court. See

Consequential contempt.

Contempt. Consequential damages.

See Damages.

Consequential loss. Losses not directly caused by dam

age, but rather arising from results of such damage. The concern which people have that nature be kept in as pristine a state as possible. Minne sota Public Research Group v. Butz, D.C.Minn. 358 F.Supp. 584, 596.

Conservation.

A guardian; protector; preserver. Ap pointed by court to manage affairs of incompetent or to liquidate business. Person appointed by a court to manage the estate of one who is unable to manage property and business affairs effectively. Uniform Pro bate Code §§ 1-201(6), 5-401(2). See also Guardian.

Conservator.

Officers authorized to pre serve 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 authori ty 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.

Conservators of the peace.

Conserve.

To save and protect from loss or damage.

To fix the mind on, with a view to careful examination; to examine; to inspect. To deliberate about and ponder over. To entertain or give heed to. See also Considered.

Consider.

Worthy of consideration; required to be observed. A "considerable" number, as of persons, does not necessarily mean a very great or any particular number of persons; the term "considerable" being mere ly relative.

Considerable.

Consideratio curire Ik�nsid�reysh(iy)ow kyliriyiy/.

The

judgment of the court. The inducement to a contract. The cause, motive, price, or impelling influence which induc es a contracting party to enter into a contract. The reason or material cause of a contract. Some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility, given, suf fered, or undertaken by the other. Restatement, Sec ond, Contracts, §§ 17(1), 71. Richman v. Brookhaven Servicing Corp., 80 Misc.2d 563, 363 N.Y.S.2d 731, 733. It is a basic, necessary element for the existence of a valid contract that is legally binding on the parties.

Consideration.

See also Adequate consideration; Failure of considera tion; Fair and valuable consideration; Fair consideration; Good consideration; I nadequate consideration; Love and affection; Past consideration; Valuable consideration; Want of consideration. Considerations are either executed or executory; ex press or implied; good or valuable. See definitions be low.

Concurrent consideration. One which arises at the same time or where the promises are simultaneous. Continuing consideration. One consisting in acts or performances which must necessarily extend over a con siderable period of time. 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. Ex press consideration is a consideration which is distinctly and specifically named in the written contract or in the oral agreement of the parties. Good consideration. Such as is founded on natural duty and affection, or on a strong moral obligation. A consid eration for love and affection entertained by and for one within degree recognized by law. Motives of natural duty, generosity, and prudence come under this class. The term is sometimes used in the sense of a considera tion valid in point of law, and it then includes a valuable

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or sufficient as well as a meritorious consideration. Generally, however, good is used in antithesis to valu able 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 prom ise which if enforced, would be prejudicial to the public interest or contrary to law. Implied considerations. See Express or implied consider ations, above. Impossible consideration. formed.

One which cannot be per

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 "good" or "sufficient" considera tion. Meritorious consideration. above.

See Good consideration,

Moral considerations. See Equitable or moral considera tions, above. 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 considera tion 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. Past consideration. An act done before the contract is made, which is ordinarily by itself no consideration for a promise. 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. Pecuniary consideration. A consideration for an act of 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 pro ceedings. Sufficient consideration. One deemed by the law of sufficient value to support an ordinary contract between parties, or one sufficient to support the particular trans action. Consideratum est per curiam /k:msid;mflyt�m est p;}r

kyuriy�m/. (It is considered by the court.) The formal and ordinary commencement of a judgment. Consideratur /k�nsid�reyt�r/.

L. Lat. It is considered. Held to mean the same with consideratum est.

Deemed; determined; adjudged; reason ably regarded. For example, 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.

Considered.

Consign /k�nsayn/.

To deliver goods to a carrier to be transmitted to a designated factor or agent. 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, whereby title does not pass until there is action of consignee indicating sale. See also Consignment.

Consignee /k�nsayniy/.

One to whom a consignment is made. Person named in bill of lading to whom or to whose order the bill promises delivery. U.C.C. § 7-102(b). In a commercial use, "consignee" means one to whom a consignment may be made, a person to whom goods are shipped for sale, or one to whom a carrier may lawfully make delivery in accordance with his contract of carriage, or one to whom goods are consigned, shipped, or otherwise transmitted. Power Transmission Equipment Corp. v. Beloit Corp., 55 Wis.2d 540, 201 N.W.2d 13, 15, 16. 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. Entrusting of goods to another to sell for the consignor. A bailment for sale.

Consignment.

The term "consignment", used in a commercial sense, ordinarily implies an agency and denotes that property is committed to the consignee for care or sale. Parks v. Atlanta News Agency, Inc., 115 Ga.App. 842, 156 S.E.2d 137, 140.

See also Reconsignment. Consignment of goods to anoth er (consignee) for sale under agreement that consignee will pay consignor for any sold goods and will return any unsold goods. A bailment for sale.

Consignment contract.

Consignment sale.

See Consignment.

Consignor /k�nsayn�r /.

One who sends or makes a consignment; a shipper of goods. The person named in a bill of lading as the person from whom the goods have been received for shipment. U.C.C. § 7-102(c).

Consilia multorum qureruntur in magnis /k�nsiliy�

m�lt6r�m kwir�nt�r in mregn�s/. The counsels of many are required in great things. Consiliarius /k�nsiliyeriy�s/.

In the civil law, a coun sellor, as distinguished from a pleader or advocate. An assistant judge. One who participates in the decisions.

Consilium /k�nsi1iy�m/.

A day appointed to hear the counsel of both parties. A case set down for argument. It is commonly used for the day appointed for the argument of a demurrer, or errors assigned.

Consimili casu /k�nsim�lay keysyuw/.

In old English law, 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

)

CONSIMILI CASU

308

curtesy aliened in fee or for life. 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. 3 Bl.Comm. 51. To stand together, to be composed of or made up of. See Consisting.

Consist.

Having agreement with itself or something else; accordant; harmonious; congruous; compatible; compliable; not contradictory.

Consistent.

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.

Consisting.

Consistor.

A magistrate.

Consistorium. Ikons;)storiy;)m/.

The state council of the

Roman emperors. Consistory.

An assembly of cardinals convoked by the

pope. A tribunal (prretorium). In England, the courts of diocesan bishops held in their several cathedrals (before the bish op'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. From the sentence of these courts an appeal lies to the Provincial Court of the archbishop of each province respectively.

Consistory courts.

Consobrini Ikons;)braynay/.

In the civil law, cousins german, in general; brothers' and sisters' children, con sidered in their relation to each other.

Consociatio Ik;)nsows(h)iyeysh(iy)ow/.

To make solid or firm; to unite, compress, or pack together and form into a more compact mass, body, or system. 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 1 16, 120.

See also Commingle; Consolidation; Joinder; Merger. If two or more persons are enti tled to appeal from a judgment or order of a district court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the court of appeals upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals. Fed.R.App.P. 3(b).

Consolidated appeal.

Consolidated balance sheets.

Bonds issued to replace two or more existing issues; thus, consolidating debt into single issue.

Consolidated bonds.

Consolidated corporations. See Consolidation of corpo

rations.

The financial re port of a parent corporation and it's subsidiaries or affiliates which combines the assets, liabilities, reve nues, and expenses of all of the entities. In preparing consolidated financial statements, all intercompany transactions are eliminated. See also Consolidated tax

Consolidated financial statements.

return.

A compilation of all the laws of a State in force arranged according to subject matter. See

Consolidated laws.

Lat. An associa tion, fellowship, or partnership. Applied by some of the older writers to a corporation, and even to a nation considered as a body politic.

Consolidated mortgage.

A bond that never matures but is redeemable

Consolidated securities.

Consolo

on call. I kons;)leysh;)n I . Comfort, contentment, ease, enjoyment, happiness, pleasure, satisfaction.

Consolation

Consolato del mare Ikonsowlatow del marey I.

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. In a general sense, to unite or unify into one mass or body, as to consolidate several small school districts into a large district, or to consolidate various funds. In legislative usage, to consolidate two bills is to unite them into one. The term means something more than to rearrange or redivide.

Consolidate.

See Consolidated finan

cial statements.

Code; Codification; Compilation.

Unification of several out

standing mortgages. An issue of securities suffi ciently large to provide the funds to retire two or more outstanding issues of debt securities.

A procedure whereby cer tain affiliated corporations may file a single return, combine the tax transactions of each corporation, and arrive at a single income tax liability for the group. The election to file a consolidated return is usually binding on future years. I.R.C. §§ 1501-1505. See also

Consolidated tax returns.

Consolidated financial statement.

Act of consolidating, or the status of being consolidated. Unification of two or more actions. See Consolidation of actions.

Consolidation.

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. In ecclesiastical law, the union of two or more benefic es in one.

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In corporate law, the combination of two or more corporations into a newly created corporation. Thus, A Corporation and B Corporation combine to form C Cor poration. The Revised Model Business Corporation Act eliminates the consolidation as a distinct type of corpo rate amalgamation. A consolidation may qualify as a nontaxable reorganization if certain conditions are satis fied. See also Consolidation of corporations; Merger. Consolidation loan.

See Loan.

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 sub stantially 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.

Consolidation of actions.

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Fed.R. Civil P. 42(a); New York C.P.L.R. § 602.

See also Joinder (Joinder of claims). Consolidation of cases.

See Consolidation of actions.

Occurs 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. See also Consolidation.

Consolidation of corporations.

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 corpo ration is created and · the consolidating corporations are extinguished. See also Merger. A prior declaration of a witness whose testimony has been attacked and whose credibili ty 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.

Consonant statement.

Consortio malorum me quoque malum facit Ikan

sorsh(iy)ow maloram miy kwowkwiy mrelam feysat/. The company of wicked men makes me also wicked. Consortium Ikansorsh(iy)am/.

Conjugal fellowship of husband and wife, and the right of each to the company, society, co-operation, affection, and aid of the other in every conjugal relation. Roseberry v. Starkovich, 73 N.M. 211, 387 P.2d 321, 322. Loss of "consortium" consists of several elements, encompassing not only ma terial services but such intangibles as society, guidance, companionship, and sexual relations. Countryman v. Winnebago County, 2 Dist., 135 Ill.App.3d 384, 90 Ill.

Dec. 344, 347, 481 N.E.2d 1255, 1258. Damages for loss of consortium are commonly sought in wrongful death actions, or when spouse has been seriously injured through negligence of another, or by spouse against third person alleging that he or she has caused break ing-up of marriage. Cause of action for "consortium" occasioned by injury to marriage partner, is a separate cause of action belonging to the spouse of the injured married partner and though derivative in the sense of being occasioned by injury to spouse, is a direct injury to the spouse who has lost the consortium. Peeples v. Sargent, 77 Wis.2d 612, 253 N.W.2d 459, 471. See also Alienation of affections.

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 BI.Comm. 140. In maritime law, an agreement or stipula tion between the owners of different vessels that they shall keep in company, mutually aid, instead of interfer ing with each other, in wrecking and salvage, whether earned by one vessel or both.

Consortship.

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.

Conspicuous place.

A term or clause is con spicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. For example, printing in italics or boldface or contrast ing color, or typing in capitals or underlined, is conspic uous. Rev. Model Bus.Corp. Act, § 1.40. A printed heading in capitals (as: NON-NEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is "conspicuous" if it is in larger or other contrast ing type or color. But in a telegram any stated term is "conspicuous."

Conspicuous term or clause.

Whether a term or clause is "conspicuous" or not is for decision by the court. Uniform Consumer Credit Code, § 1.301(6); U.C.C. § 1-201(10). Size of type face alone does not determine whether required disclosure is "con spicuous" for purpose of Truth in Lending Act; rather, location of disclosure, and manner in which it is set off from other information, are also determinative. Robin son v. Olin Federal Credit Union, D.C.Conn., 48 B.R. 732, 740. Conspiracy lkanspir;}siy I.

A combination or confedera cy 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 lawful 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.

CONSPIRACY

3 10

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. Model Penal Code, § 5.03. Crime of conspiracy is distinct from the crime contem plated by the conspiracy (target crime), Com. v. Dyer, 243 Mass. 472, 509, 138 N.E. 296, 314, cert. denied, 262 U.S. 751, 43 S.Ct. 700, 67 L.Ed. 1214. Some jurisdictions do not require an overt act as an element of the crime, e.g. Com. v. Harris, 232 Mass. 588, 122 N.E. 749. 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 not know each other or the part played by others; a member need not know all the details of the plan or the opera tions; he must, however, know the purpose of the con spiracy and agree to become a party to a plan to effectu ate that purpose. Craig v. U. S., C.C.A.Cal., 81 F.2d 816, 822. There are a number of federal statutes prohibiting specific types of conspiracy. See, e.g., 18 U.S.C.A. § 37l.

See also Chain conspiracy; Co-conspirator's rule; Com bination in restraint of trade; Confederacy; Seditious con spiracy; Wharton Rule. Chain conspiracy. Such conspiracy is characterized by different activities carried on with same subject of con spiracy in chain-like manner that each conspirator in chain-like manner performs a separate function which serves in the accomplishment of the overall conspiracy. Bolden v. State, 44 Md.App. 643, 410 A.2d 1085, 109l. Civil conspiracy. 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. See also Civil conspiracy. Overthrow of government. See Sedition. Term which de scribes all forms of illegal agreements such as boycotts, price fixing, etc., which have as their object interference with free flow of commerce and trade. See Antitrust acts;

Conspiracy in restraint of trade.

Clayton Act; Sherman Antitrust Act.

Persons partaking in conspiracy.

See

Conspiracy.

To engage in conspiracy. Term 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. See Conspiracy.

Conspire.

An officer of a municipal corporation (usual ly elected) whose duties are similar to those of the sheriff, though his powers are less and his jurisdiction

Constable.

In English law, 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 Bl.Comm. 356. There were formerly "high," "petty," and "special" constables. In England, the functions of these special constables have been taken over by police forces. In Medieval law, 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. Constablewick Ik:}nst�b�lwik/.

In English law, the ter ritorial jurisdiction of a constable; as bailiwick is of a bailiff or sheriff.

Constabularius Ik�nstreby�leriy�s/.

An officer of horse; an officer having charge of foot or horse; a naval com mander; an officer having charge of military affairs generally. In England his power was early diminished and restricted to those duties which related to the pres ervation of the king's peace. The office is now abolished except as a matter of ceremony. Fixed or invariable; uniform. Continually recurring, regular, steady. Pfisterer v. Key, 218 Ind. 521, 33 N.E.2d 330, 335.

Constant.

Constantly.

In a constant manner; uniformly; continu

ously. Constat Ik6nst�trretl.

Seditions conspiracy. See Sedition.

Conspirators.

smaller. He is to preserve the public peace, execute the process of magistrates' courts, and of some other tribu nals, 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. Powers and duties of constables have gener ally been replaced by sheriffs.

It is clear or evident; it appears; it is certain; there is no doubt. Non constat, it does not appear.

In England, 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. An exemplification under the great seal of the enrolment of letters patent. A certificate by an officer that certain matters therein stated appear of record. Constat d'huissier Ikonsta dwiysyey/.

In French law, an affidavit made by a huissier, setting forth the appear ance, form, quality, color, etc., of any article upon which a suit depends.

Constate Ik�nsteyt/.

To establish, constitute, or ordain.

311

CONSTITUTIONAL LIBERTY OR FREEDOM

"Constating instruments " of a corporation are its char ter, organic law, or the grant of powers to it. Constituency.

The inhabitants of an electoral district.

He who gives authority to another to act for him. The term is used as a correlative to "attor ney," to denote one who constitutes another his agent or invests the other with authority to act for him.

Constituent.

It is also used in the language of politics as a correla tive 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. The elements of a crime, tort or other type of action. Those matters which must be proved to sustain a cause of action because they consti tute the action or crime.

Constituent elements.

Constituere Ikonst;}tyuw;}riy I.

Lat. To appoint, consti tute, establish, ordain, or undertake. Used principally in ancient powers of attorney, and now supplanted by the English word "constitute."

Constituimus Ikonst;}tuw;}m;}s/.

A Latin term, signify

ing we constitute or appoint. Officers properly appointed under a constitution for the government of the people.

Constituted authorities.

Constitutio Ikonst;}t(y)uwsh(iy)ow/.

In the civil law, an imperial ordinance, decree, or constitution, distin guished from Lex, Senatus-Consultum, and other kinds of law and having its effect from the sole will of the emperor. An establishment or settlement. Used of controversies settled by the parties without a trial. A sum paid according to agreement. In old English law, an ordinance or statute. A provi sion of a statute.

Constitutio dotis Ikonst;}t(y)uwsh(iy)ow d6wt;}s/.

Estab

lishment of dower. The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its govern ment, 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. The written instrument agreed upon by the people of the Union (e.g. United States Constitution) or of a particular state, as the absolute rule of action and decision for all departments (i.e. branches) 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 (i.e. by amendment), and in opposition to which any act or ordinance of any such department or officer is null and void. The full text of the U.S. Constitution appears at the end of this dictio nary.

Constitution.

In a more general sense, any fundamental or impor tant law or edict; as the Novel Constitutions of Justini an; the Constitutions of Clarendon. Consistent with the constitution; au thorized by the cons.titution; 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 mon archy," "constitutional rights."

Constitutional.

A person of official status un der Mexican law corresponding in many respects in dignity and authority to a justice of the peace under the American system of government. Tietzel v. Southwest ern Const. Co., 48 N.M. 567, 154 P.2d 238, 242.

Constitutional alcalde.

A duly constituted assem bly of delegates or representatives of the people of a state or nation for the purpose of framing, revising, or amending its constitution. Art. V of U.S. Const. pro vides that a Constitutional Convention may be called on application of the Legislatures of two-thirds of the states.

Constitutional convention.

A court named or described and expressly protected by Constitution, or recognized by name or definite description in Constitution (e.g. Su preme Court, as provided for in Art. III, Sec. 1 of U.S.Const.) in contrast to legislatively created courts. Commonly referred to as "Article III" courts in refer ence to U.S. Constitution.

Constitutional court.

Generic term to describe the basic freedoms guaranteed by the Constitution such as the First Amendment freedoms of religion, speech, press and assembly together with protection under due pro cess clause of the 14th Amendment. See also Bill of

Constitutional freedom.

rights; Constitutional liberty or freedom.

A special interest in real estate which protects it from attachment, created by constitution and available to the head of the family. Ringer v. Bryne, 183 Okl. 46, 80 P.2d 212, 214.

Constitutional homestead.

(1) That branch of the public law of a nation or state which treats of the organization, pow ers and frame of government, the distribution of politi cal and governmental authorities and functions, the fundamental principles which are to regulate the rela tions of government and citizen, and which prescribes generally the plan and method according to which the public affairs of the nation or state are to be adminis tered. (2) That department of the science of law which treats of constitutions, their establishment, construction, and interpretation, and of the validity of legal enact ments 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 constitu tion of the particular state.

Constitutional law.

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

Constitutional liberty or freedom.

CONSTITUTIONAL LIBERTY OR FREEDOM which are guaranteed by the constitution and secured against invasion by the government or any of its agen cies. See also Bill of rights; Constitutional freedom. Those provisions of a con stitution which restrict the legislature in the types of laws which it may enact. See e.g. Art. I, Sec. 9, U.S. Constitution.

Constitutional limitations.

A public position or office which is created by a constitution as distinguished from a statutory office which is created by an enactment of the legislature.

Constitutional office.

A governmental official whose office was created by a constitution; as contrasted with an officer whose position has been created by the legisla ture. One whose tenure and term of office are fixed and defined by the constitution, as distinguished from the incumbents of offices created by the legislature.

Constitutional officer.

Constitutional powers.

See Power.

Those basic protections guaranteed by the Constitution such as due process, equal protection and the fundamental protections of the First Amendment, such as those touching speech, press and religion. See Bill of rights; Constitutional freedom.

Constitutional protections.

Those legal issues which re quire an interpretation of the Constitution for their resolution as distinguished from those of a statutory nature (e.g. Fourth Amend. search and seizure issues).

Constitutional questions.

Constitutional right. A right guaranteed to the citizens

by the United States Constitution and state constitu tions and so guaranteed as to prevent legislative inter ference therewith. See also Constitutional freedom; Con stitutional liberty or freedom; Constitutional protections. Constitutional tort.

See Tort.

Constitutiones Ikonst;}t(y)uwshiyowniyz/.

Laws prom ulgated, i.e. , enacted, by the Roman Emperor. They were of various kinds, namely, the following: (1) Edicta; (2) decreta; (3) rescripta, called also "epistolre. " Some times they were general, and intendE!d to form a prece dent 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.

Constitutiones tempore posteriores potiores sunt his ipsas prrecesserunt Ikonst;}t(y)uwshiyowniyz tempOlriy pOlstiriyoriyz s�nt hays kwiy ipSOlS presOlserOlnt/. Later laws prevail over those which preceded them. qure

3 12 Constitutum Ikonst;}t(y)uwtOlm/.

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. A day appointed for any purpose. A form of appeal.

Constitutum esse eam domum unicuique nostrum debere existimari, ubi quisque sedes et tabulas ha beret,

SUarumque

rerum

constitutionem fecisset

Ikonst(y)uwtOlm esiy iy;}m dowmOlm yuwnOlk(yuw)aykwiy nostrOlm dOlbiriy OlgzistOlmeray, yuwbay kwiskwiy siydiyz et trebyOlIOls h;}bir;}t, syuwer�mkwiy rirOlm konstOlt(y)UW shiyownOlm fOlsisOlt/. 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. Act of constraining, i.e. state of being re strained or restricted.

Constraint.

To build; erect; put together; make ready for use. To adjust and join materials, or parts of, so as to form a permanent whole. To put together constitu ent parts of something in their proper place and order. "Construct" is distinguishable from "maintain," which means to keep up, to keep from change, to preserve. See also Construction.

Construct.

Constructio legis non facit injuriam IkOlnstr�ksh(iy)ow

liyj;}s non feysOlt injuriYOlm/. The construction of the law (a construction made by the law) works no injury. The law will make such a construction of an instrument as not to injure a party. Interpretation of statute, regulation, court decision or other legal authority. The process, or the art, of determining the sense, real meaning, or proper explanation of obscure, complex 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. Drawing conclusions respecting subjects that lie beyond the direct expression of the term. The process of bringing together and correlating a number of independent entities, so as to form a definite entity. The creation of something new, as distinguished from the repair or improvement of something already exist ing. The act of fitting an object for use or occupation in the usual way, and for some distinct purpose. See

Construction.

Construct.

See Charta (Charta de

See also Broad interpretation; Comparative interpreta tion; Contemporaneous construction; Construe; Four cor ners rule; I nterpretation; Last antecedent rule; Literal construction or interpretation; Statutory construction; Strict construction.

In the civil law, one who, by a simple agreement, becomes responsible for the payment of another's debt.

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

Constitutions of Clarendon.

See Clarendon, constitu

tions of. Constitutions of the Forest.

foresta). Constitutor IkonstOltyu.wtOlr/.

313

CONSTRUCTIVE FILING Authority inferred or assumed to have been given because of the grant of some other antecedent authority. See also Authority.

liberal and extensive construction, as opposed to a liter al and restrictive. See also Strict and liberal construc tion, below.

Constructive authority.

Strict and liberal construction. Strict (or literal) con struction 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 considera tions or implications. 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, provid ed 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. 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. See also Equitable construction, above.

Constructive breaking into a house. A breaking made

Construction contract. Type of contract in which plans

and specifications for construction are made a part of the contract itself and commonly it is secured by per formance and payment bonds to protect both subcontrac tors and party for whom building is being constructed. A lien that arises by law and at taches to real estate to secure payment of a person who improved the property through the rendering of labor or other services or the furnishing of materials or other supplies. Another name for this lien is mechanics' lien (q.v.).

Construction lien.

Construction loan.

See Loan.

Interpretation which is given to provisions of will and the law to be applied therein when there is conflict as to the meaning intended by the deceased. Such function is commonly performed by Probate Court.

Construction of will.

That which is established by the mind of the law in its act of construing facts, conduct, circum stances, or instruments. That which has not the charac ter assigned to it in its own essential nature, but ac quires such character in conseqnence of the way in which it is regarded by a rule or policy of law; hence, inferred, implied, or made out by legal interpretation; the word "legal" being sometimes used here in lieu of "constructive." As to constructive Bailment; Breaking; Contempt; Con version; Delivery; Escape; Fraud; Larceny; Seisen; and Treason, see those titles.

Constructive.

Type of adverse pos session which, under certain statutes, is characterized by payment of taxes under color of right, as distin guished from actual adverse possession in which the adverse claimant is in actual possession.

Constructive adverse possession.

Constructive assent. An assent or consent imputed to a

party from a construction or interpretation of his con duct; as distinguished from one which he actually ex presses.

out by construction of law. As where a burglar gains an entry into a house by threats, fraud, or conspiracy. Conditions in contracts which are neither expressed nor implied by the words of the contract but are imposed by law to meet the ends of justice. Restatement, Second, Contracts, § 226. The cooperation of the parties to a contract is a constructive condition. In negotiable instruments, a promise or or der otherwise unconditional is not made conditional by the fact that the instrument is subject to a constructive condition. U.C.C. § 3-105(1).

Constructive condition.

A species of contracts which arise, not from the intent of the parties, but from the operation of law to avoid an injustice. These are some times referred to as quasi contracts or contracts implied in law as contrasted with contracts implied in fact which are real contracts expressing the intent of the parties by conduct rather than by words. An obligation created by law for reasons of justice without regard to expressions of assent by either words or acts. Power-Matics, Inc. v. Ligotti, 79 N.J.Super. 294, 191 A.2d 483, 489. See also Contract (Quasi contract).

Constructive contract.

The recognition of the act of intending that title to property be transferred to some one, even though the actual, physical delivery of the property is not made (because of difficulty, impossibility) (e.g., the transfer of a key to a safe constructively delivers the contents of the safe). See also Delivery.

Constructive delivery.

desertion. Occurs when one spouse, through misconduct, forces the other to abandon the marital abode. Grollman v. Grollman, D.C.App., 220 A.2d 330, 332. If a spouse is forced to leave the home because of the other's conduct, the former has been constructively deserted.

Constructive

Constructive dividend. See Dividend.

Such arises when landlord, while not actually depriving tenant of possession, has done or suffered some act by which premises are ren dered untenantable. Net Realty Holding Trust v. Nel son, 33 Conn.Sup. 22, 358 A.2d 365, 367. Any distur bance of the tenant's possession by the landlord whereby the premises are rendered unfit or unsuitable for occu pancy 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 pos session. For example, if a tenant vacates the rental property because of the absence of heat or water, he has been constructively evicted.

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. The filing of a document with a person who is the only one available to receive it,

Constructive filing.

CONSTRUCTIVE FILING though he is not the designated person to receive it, is a constructive filing. People v. Spencer, 193 Cal.App.2d 13, 13 Cal.Rptr. 881, 883.

314

be considered a constructive as contrasted with an actu al payment; e.g. a check which is mailed in payment though not yet cashed is a constructive payment.

As regards robbery, a taking by force is the gist of the crime, but the force may be either actual or constructive. Constructive force is anything which produces fear sufficient to suspend the power of resistance and prevent the free exercise of the will. Actual force is applied to the body; constructive is by threatening words or gestures and operates on the mind.

Constructive possession.

Exists where conduct, though not actually fraudulent, has all actual consequences and all legal effects of actual fraud. Agair Inc. v. Shaeffer, 232 Cal.App.2d 513, 42 Cal.Rptr. 883, 886. Breach of legal or equitable duty which, irrespective of moral guilt, is declared by law to be fraudulent because of its tendency to deceive others or violate confidence. Daves v. Law yers Sur. Corp., Tex.Civ.App., 459 S.W.2d 655, 657. See also Fraud.

Constructive receipt of income.

Constructive force.

Constructive fraud.

Conditions or quali fications to a promise which arise from the very nature of the promise and which the law recognizes as condi tioning the promise even though not expressly stated.

Constructive/implied conditions.

Exists where one should have reasonably expected or anticipated a particular result; e.g. when one does an act which is wilful and wanton resulting in injury to another, it can be said that he constructively intended the harm. Ballew v. Asheville & E. T. R. Co., 186 N.C. 704, 120 S.E. 334.

Constructive intent.

If one by exercise of reason able care would have known a fact, he is deemed to have had constructive knowledge of such fact; e.g. matters of public record. Attoe v. State Farm Mutual Auto. Ins. Co., 36 Wis.2d 539, 153 N.W.2d 575, 579. See also

Constructive knowledge.

Constructive notice.

One resulting from such injuries to the property, without its destruction, as render it value less to the assured or prevent its restoration to the original condition except at a cost exceeding its value. See also Constructive total loss.

Constructive loss.

That type of malice which the law infers from the doing of an evil act; sometimes known as implied malice.

Constructive malice.

Such notice as is implied or im puted by law, usually on the basis that the information is a part of a public record or file, as in the case of notice of documents which have been recorded in the appropri ate registry of deeds or probate. Notice with which a person is charged by reason of the notorious nature of the thing to be noticed, as contrasted with actual notice of such thing. That which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. In re Fahle's Estate, 90 Ohio App. 195, 105 N.E.2d 429, 431 .

Constructive notice.

Constructive ownership.

See Attribution.

If one charges himself with a payment and the payee has a right to demand it, it can

Constructive payment.

A person has constructive possession of property if he has power to control and intent to control such item. Com. v. Stephens, 231 Pa.Super. 481, 331 A.2d 719, 723. Exists where one does not have physical custody or possession, but is in a position to exercise dominion or control over a thing. U. S. v. DiNovo, C.A.lnd., 523 F.2d 197, 201.

As applied to tax laws, is taxable income which is unqualifiedly subject to the demand of taxpayer on cash receipts and disburse ments method of accounting, whether or not such in come has actually been received in cash. Gounares Bros. & Co. v. U. S., D.C.Ala., 185 F.Supp. 794, 798. Under this doctrine, income which is subject to unfet tered command of taxpayer and which the taxpayer is free to enjoy at his option is taxed to him, despite the fact that the taxpayer has exercised his own choice to turn his back on that income and the doctrine is one by which form of transaction is ignored in order to get to its substance. Pittsburgh-Des Moines Steel Co. v. U. S., D.C.Pa., 360 F.Supp. 597, 599. An example would be accrued interest on a savings account. Under the con structive receipt of income concept, such interest will be taxed to a depositor in the year it is available rather than the year actually withdrawn. The fact that the depositor uses the cash basis of accounting for tax pur poses makes no difference. Form of service of process other than actual service; e.g. publication in newspaper is constructive service.

Constructive service of process.

A phrase used in the law to characterize an act not amounting to an actual appropri ation of chattels, but which shows an intention to con vert them to his use; as if a person intrusted with the possession of goods deals with them contrary to the orders of the owner. With respect to constructive con demnation, see Condemnation (Inverse condemnation).

Constructive taking.

In insurance, exists whenever insured item of property has lost its total usefulness and insured is deprived of its benefit totally. See also Con

Constructive total loss.

structive loss.

A transfer of an item (e.g. a controlled substance), either belonging to an individual or under the individual's control, by some other person or agency at the instance or direction of the individual accused of such constructive transfer. Henderson v. State, Tex.App. 14 Dist., 681 S.W.2d 173, 174.

Constructive transfer.

Trust created by operation of law against one who by actual or constructive fraud, by duress or by abuse of confidence, or by commission of wrong, or by any form of unconscionable conduct, or other questionable means, has obtained or holds legal right to property which he should not, in equity and good conscience, hold and enjoy. Davis v. Howard, 19 Or.App. 310, 527 P.2d 422, 424.

Constructive trust.

CONSUETUDO TOLLIT COMMUNEM LEGEM

3 15

A constructive trust is a relationship with respect to property subjecting the person by whom the title to the property is held to an equitable duty to convey it to another on the ground that his acquisition or retention of the property is wrongful and that he would be unjust ly enriched if he were permitted to retain the property. Restatement, Second, Trusts § lee). A constructive trust which is imposed on property which a fiduciary has claimed or received in violation of his duties.

Constructive trust ex delicto.

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 indiffer ence to consequences.

Constructive willfulness.

To put together; to arrange or interpret the words of an instrument, statute, regulation, court deci sion or other legal authority. To ascertain the meaning of language by a process of arrangement, interpretation and inference. See Construction.

Construe.

Constuprate Ikonst(y);;)preyt/.

To ravish, debauch, vio

late, rape. Consuetudinarius Ikcmsw;;)ytyuwd;;)neriy;;)sI .

In ecclesi astical law, a ritual or book, containing the rites and forms of divine offices or the customs of abbeys and monasteries.

Consuetudinary law Ikcmsw;;)tyuwd;;)n(;;))ry 16/.

Custom ary law. Law derived by oral tradition from a remote antiquity.

prow n;}l;;)s heybent;;)r/. A custom should be certain; for an uncertain custom is considered null. Consuetudo est altera lex Ikonsw;;)tyuwdow est relt;;)r;;)

leks/.

Custom is another law.

est optimus interpres legum Ikon sw;;)tyUwdow est opt;;)m;;)s int;}rpriyz liyg;;)m/. Custom is the best expounder of the laws.

Consuetudo

Consuetudo et communis assuetudo vincit legem non scriptam, si sit specialis;

et interpretatur legem

Ikonsw;;)tyuwdow et k;;)myuwn;;)s resw;;)tyuwdow vins;;)t liyj;;)m non skript;;)m, say sit speshiyeyl;;)s; et int�rpr;;)teyt;;)r liyj;;)m skript;;)m, say sit jen;;)reybs/. Custom and common usage over comes the unwritten law, if it be special; and interprets the written law, if the law be general. scriptam, si lex sit generalis

Consuetudo ex certa causa rationabili usitata privat legem Ikonsw;;)tyuwdow et S;}rt;;) kosa rresh;;)neyb;;)lay yuwz;;)teyt;;) prayv;;)t k;;)myuwn;;)m liyj;;)m/. A custom, grounded on a certain and reasonable cause, supersedes the common law.

communem

Consuetudo licet sit magnre auctoritatis, nunquam tamen, prrejudicat manifestre veritati Ikonsw;;)tyuwd ow, lis;;)t sit mregniy oktohr;;)teyt;;)s, n;}I]kw;;)m tremen pr;;)juwd;;)k;;)t mren;;)festiy vehr;;)teytay I. A custom, though it be of great authority, should never prejudice manifest truth. Consuetudo loci observanda est Ikonsw;;)tyuwdow low

say obz;;)rvrend;;) est/. observed.

The custom of a place is to be

In old English law, customs. Thus, consuetudines et assisa forestre, the customs and assise of the forest.

Consuetudo manerii et loci observanda est Ikon

feudorum Ikonsw;;)tyuwd;;)niyz fyuw dor;;)m/. (Lat. feudal customs.) A compilation of the law of feuds or fiefs in Lombardy, made A.D. 1 170. It is . of great authority.

Consuetudo

Consuetudines Ikonsw;;)tyuwd;;)niyz/.

Consuetudines

Consuetudinibus et serviciis Ikonsw;;)tyuwdin;;)b;;)s et

s;;)rvishiy;;)s/. 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. Consuetudo Ikonsw;;)tyuwdowI.

Lat. A custom; an es tablished usage or practice; duties; taxes.

Consuetudo anglicana Ikonsw;;)tyuwdow reI]gl;;)keyn;;)I .

sw;;)tyuwdow m;;)niriyay et lowsay obz;;)rvrend;;) est/. custom of a manor and place is to be observed.

mercatorum Ikonsw;;)tyuwdow m;;)r k;;)tor;;)m/. Lat. The custom of merchants, the same with lex mercatoria.

Consuetudo neque injuria oriri neque tolli potest

Ikonsw;;)tyuwdow nekwiy ;;)njuriy;;) ;;)rayray nekwiy tolay powt;;)st/. Custom can neither arise from nor be taken away by injury. Consuetudo non trahitur in consequentiam Ikon-

sw;;)tyuwdow non trey(h);;)t;;)r in kons;;)kwensh(iy);;)m/. Custom is not drawn into consequence. Consuetudo

prrescripta

legitima vincit

legem

The custom of England; the ancient common law, as distinguished from lex, the Roman or civil law.

Ikonsw;;)tyuwdow pr;;)skript;;) ;;)t bjit;;)m;;) vins;;)t liyj;;)m/. A prescriptive and lawful custom overcomes the law.

Consuetudo contra rationem introducta potius usur

Consuetudo regni anglire est lex anglire Ikonsw;;)tyuw

patio

quam

consuetudo

appellari

debet

Ikonsw;;)tyuwdow kontr;;) rreshiyown;;)m intr;;)d;}kt;;) powsh(iy);;)s yuws;;)rpeysh(iy)ow kwrem konsw;;)tyuwdow rep;;)leray deb;;)t/. A custom introduced against reason ought rather to be called a "usurpation" than a "cus tom." Ikonsw;;)tyuwdow kyuriyiy I. custom or practice of a court.

Consuetudo curire

The

Consuetudo debet esse certa; nam incerta pro nulla habetur Ikonsw;;)tyuwdow deb;;)t esiy S;}rt;;), nrem ins;}rt;;)

dow regnay reI]gliyiy est leks reI]gliyiy I. The custom of the kingdom of England is the law of England. 2 Bl.Comm. 422. Consuetudo semel reprobata non potest amplius in duci Ikonsw;;)tyuwdow sem;;)l reprowbeyt;;) non powt;;)st

rempliy;;)s ind(y)uwsay/. A custom once disallowed can not be again brought forward [or relied on]. Consuetudo tollit communem legem Ikonsw;;)tyuwdow

tobt k;;)myuwn;;)m liyj;;)m/. Custom takes away the com mon law.

CONSUETUDO VINCIT COMMUNEM LEGEM Consuetudo vincit communem legem Ikonsw�tyuwd

ow vins�t k�myuwn�m liyj�m/. Custom overrules com mon law. Consuetudo volentes ducit, lex nolentes trahit Ikon

sw�tyuwdow v�l€mtiyz d(y)uws�t, leks now lentiyz trey(h)�t/. Custom leads the willing, law com pels [drags] the unwilling. Consul Ikons�l/.

An officer of a commercial character, appointed by the different nations to watch over the mercantile and tourist interests of the appointing nation 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." A public official residing in a foreign country responsible for developing and protect ing the economic interests of his government and look ing after the welfare of his government's citizens who may be traveling or residing within his jurisdiction. United States consuls form a part of the Foreign Service and are of various grades: consul general, consul, vice consul, and consular agent. In old English law, a title of an earl.

In 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. Consular courts Ikons(y)�l�r korts/.

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 had also a criminal jurisdiction, but in this respect were subject to review by the courts of the home government. The last of the United States consular courts (Morocco) was abolished in 1956. Invoice used in foreign trade signed by consul of the country for which the shipment is destined. Such facilitates entry through destination country in that quantity, value, etc. of shipment has been pre-verified.

Consular invoice.

A marriage solemnized in a for eign country by a consul or diplomatic agent of the U.S. and held to be valid in some jurisdictions.

Consular marriage.

Consulate.

The residence or headquarters of a foreign

consul. Consul general.

Consular officer of highest grade.

Consulta ecclesia Ik�ns;)lt� �kliyziy�/.

In ecclesiastical

law, a church full or provided for. Consultary response Ik�ns;)lt�riy r�spons/kons�lteriyO I.

The opinion of a court of law on a special case. Act of consulting or conferring; e.g. pa tient with doctor; client with lawyer. Deliberation of persons on some subject. A conference between the counsel engaged in a case, to discuss its questions or arrange the method of conducting it.

Consultation.

316

An old writ whereby a cause which had been wrong fully removed by prohibition out of an ecclesiastical court to a temporal court was returned to the ecclesiasti cal court. Consulto Ik�ns;)ltow/.

Lat. In the civil law, designedly;

intentionally. Consumer Ik�ns(y)uwm�r I.

One who consumes. Indi viduals who purchase, use, maintain, and dispose of products and services. Users of the final product. A member of that broad class of people who are affected by pricing policies, financing practices, quality of goods and services, credit reporting, debt collection, and other trade practices for which state and federal consumer protection laws are enacted. Consumers are to be dis tinguished from manufacturers (who produce goods), and wholesalers or retailers (who sell goods). See also Pur chaser.

A buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract). 15 U.S.C.A. § 230l. One who is given to presenting the position of the consumer or to representing him in judicial, administrative, or legislative proceedings. See also Ombudsman.

Consumer advocate.

Short term loans to individuals for purchase of consumer goods and services.

Consumer credit.

A uniform law, adopted by several states, with intent and purpose similar to that of the federal Consumer Credit Protection Act (q. v.).

Consumer Credit Code.

Federal and state acts (commonly referred to as Truth-in-Lending Acts) enacted to safeguard the consumer in connection with the utilization of credit by requiring full disclosure of the terms and conditions of finance charges in credit transactions or in offers to extend credit, by restricting the garnishment of wages, and by regulating the use of credit cards. 15 U.S.C.A. § 1601 et seq. In addition to federal and state Truth-in-Lending Acts, several states also require by statute that consumer-loan agreements be written in plain, simplified language. See also Annu

Consumer Credit Protection Act.

al percentage rate; Equal Credit Opportunity Act; Fair Credit Billing Act; Fair Credit Reporting Acts; Fair Debt Collection Practices Act; Truth-in-Lending Act; Uniform Consumer Credit Code.

Any sale with respect to which consumer credit is extended or arranged by the seller. The term includes any contract in the form of a bail ment or lease if the bailee or lessee contracts to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the property and services involved and it is agreed that the bailee or lessee will become, or for no other or for a nominal

Consumer credit sale.

CONSUMMATE LIEN

31 7

consideration has the option to become, the owner of the property upon full compliance with his obligations un der the contract. Consumer credit transaction. Credit offered or extend

ed to a natural person, in which the money, property or service which is the subject of the transaction is primari ly for personal, family, household or agricultural pur poses and for which either a finance charge is or may be imposed or which, pursuant to an agreement, is or may be payable in more than four installments. "Consumer loan" is one type of "consumer credit". Consumer debt. Debt incurred by an individual primar

ily for a personal, family, or household purpose. Bank ruptcy Code § 101. Goods which are used or bought for use primarily for personal, family or household pur poses. V.C.C. § 9-109(1). Such goods are not intended for resale or further use in the production of other products. Contrasted with capital goods. See also Con

Consumer goods.

sumer product. Consumer lease. Lease of consumer goods; also may be

applied to lease of dwelling as contrasted with commer cial lease. Article 2A of the V.C.C. is concerned with the formation, construction, effect, and enforcement of the consumer lease contracts, as well as the rights and remedies of both lessor and lessee on default. As de fined by V.C.C. § 2A-I03 is "a lease that a lessor regu larly engaged in the business of leasing or selling makes to a lessee, except an organization, who takes under the lease primarily for a personal, family, or household purpose." Disclosure of terms in certain types of consumer leas es is governed by Federal Consumer Leasing Act (which is fully integrated into the Federal Truth in Lending Act). 15 V.S.C.A. § 1667 et seq. A price index computed and issued monthly by the Bureau of Labor Statistics of the V.S. Department of Labor. The index attempts to track the price level of a group of goods and services pur chased by the average consumer. Widely used to mea sure changes in cost of maintaining given standard of living. See Cost of living clause. Compare Producer Price

Consumer Price Index.

Index.

ban hazardous consumer products. The Consumer Prod uct Safety Act also authorizes the Commission to con duct extensive research on consumer product standards, engage in broad consumer and industry information and education programs, and establish a comprehensive In jury Information Clearinghouse. Federal and state statutes governing sales and credit practices involving consumer goods. Such statutes prohibit and regulate deceptive or unconscionable advertising and sales practices, product quality, credit financing and reporting, debt collection, leases, and other aspects of consumer transactions. For examples of such statutes, see Consumer Credit Protection

Consumer protection laws.

Act; Consumer Product Safety Commission; Deceptive sales practices; Equal Credit Opportunity Act; Fair Debt Collection Practices Act; Fair Credit Billing Act; Fair Credit Reporting Acts; Magnuson-Moss Warranty Act; Truth-in Lending Act; Uniform Commercial Code; Uniform Con sumer Credit Code.

At the federal level, the major regulatory law is the Federal Trade Commission Act. More than half the states have in turn enacted "mini-FTC" laws which, like the federal, prohibit "unfair or deceptive acts or practic es." Document issued by private or gov ernmental body relative to quality of certain products, their dangers and their attributes. Document issued as to certain companies and their practices. See Fair Credit

Consumer report.

Reporting Acts.

An agency which acts for monetary fees, dues or on a cooperative nonprofit basis, which regularly engages in whole or in part in gathering or evaluating information on consumers in order to distribute such information to third parties engaged in commerce and which uses a facility of interstate com merce to prepare or distribute the reports. Porter v. Talbot Perkins Children's Services, D.C.N.Y., 355 F.Supp. 174, 176. The activities of such agencies are regulated by federal and state laws. See Fair Credit

Consumer reporting agency.

Reporting Acts.

Group which purchases con sumer goods for resale to its members, thus reducing costs by eliminating the middleman's profit.

Consumer's cooperative.

Any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (includ ing any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed). 15 V.S.C.A. § 2301. See also Consumer goods.

Consummate Ik;ms�m;}tI, adj.

An indepen dent federal regulatory agency established by act of October 27, 1972 (86 Stat. 1207) to administer and imple ment the Consumer Product Safety Act. The Commis sion has primary responsibility for establishing manda tory product safety standards, where appropriate, to reduce the unreasonable risk of injury to consumers from consumer products. In addition it has authority to

Consummate Ik6ns;}meyt/, v.

Consumer product.

Consumer Product Safety Commission.

Completed; as distin guished from initiate, or that which is merely begun. The husband of a woman seised of an estate of inheri tance 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.

To finish by completing what was intended; bring or carry to utmost point or degree; carry or bring to completion; finish; perfect; fulfill; achieve. See also Consummation. A term which may be used to de scribe the lien of a judgment when a motion for a new trial has been denied (the lien having theretofore been merely inchoate).

Consummate lien.

CONSUMMATION

318

Consummation Ikons�meysh;m/.

The completion of a thing; the completion of a marriage by cohabitation (i.e. sexual intercourse) between spouses. Act or process of consuming; waste; de cay; destruction. Using up of anything, as food, natural resources, heat, or time.

Consumption.

One capable of being transmitted by mediate or immediate contact.

Contagious disease.

Condition of impurity resulting from mixture or contact with foreign substance. American Cas. Co. of Reading, Pa. v. Myrick, C.A.Tex., 304 F.2d 179, 183. See also Adulteration; Foreign substance.

Contamination.

Contango Ikontre1Jgow I.

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 several 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 days during the settlement when these arrangements are in effect. Charge by broker for carrying customer's account to next settlement day.

Contek Ik�ntek/.

bance, opposition. the peace.

L. Fr. A contest, dispute, distur Conteckours; brawlers; disturbers of

Contemnor Ik�ntemn�r/.

One who has committed con

tempt of court. To view or consider with continued atten tion; to regard thoughtfully; to have in view as contin gent or probable as an end or intention. To ponder, to study, to plan, to meditate, to reflect. See Consider;

Contemplate.

Premeditation. Contemplation. The act of the mind in considering with

attention. Continued attention of the mind to a particu lar 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. See Consideration; Premeditation.

Contemplation of the termination of one's business because of the financial 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 formerly declared to be an "act of bankruptcy," or to make provision against the consequences of insol vency, or to defeat the general distribution of assets which would take place under a proceeding in bankrupt cy. See Act of bankruptcy; Bankruptcy proceedings.

Contemplation of bankruptcy.

Contemplation of death. The apprehension or expecta

tion of approaching dissolution; not that general expec tation which every mortal entertains, but the apprehen sion 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 mor tis." In re Cornell's Estate, 66 A.D. 162, 73 N.Y.S. 32; 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. It has been further held however, that in determining whether transfer by decedent within three years prior to date of death was made in contemplation of death, phrase "con templation of death" is not restricted in meaning to apprehension that death is imminent; inquiry is wheth er the "life" as opposed to "death" motives were the dominant controlling or impelling reasons for the trans fer. Bel v. U. S., D.C.La., 310 F.Supp. 1 189, 1 194. See also I n contemplation of death. Knowledge of, and ac tion with reference to, an existing or contemplated state of insolvency, with a design to make provision against its results or to defeat the operation of the insolvency laws. See Act of bankruptcy; Contemplation of bankrupt

Contemplation of insolvency.

cy. expositio Ik�ntemp�reyniy� eks p�zish(iy)ow/. 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

Contemporanea expositio est optima et fortissima in lege Ik�ntemp�reyniy� eksp�zish(iy)ow est 6pt�m� et

fortis�m� in liyjiy I. Contemporaneous exposition is the best and strongest in the law. A statute is best ex plained by following the construction put upon it by judges who lived at the time it was made, or soon after. A doctrine which holds that when an administrative body over a long period of time has placed an interpretation upon an ambiguous law, the interpretation of such body is enti tled to great weight in the determination of the meaning of the law. Bunch v. Town of St. Francisville, La.App. 1 Cir., 446 So.2d 1357, 1361.

Contemporaneous construction.

Rule which requires that a specific and timely objection be made to the admission of evidence for the question of its admissibili ty to be considered on appeal. Jensen v. Jensen, 205 Kan. 465, 470 P.2d 829, 831 .

Contemporaneous objection rule.

I n deciding whether allegedly obscene material has any literary, political or scientific value, the proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political or scientific value in the material, but whether a reasonable person would find such value in the material taken as a whole. Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439, 445.

Contemporary community standards.

A willful disregard or disobedience of a public authority. See also Civil contempt; Common-law

Contempt.

contempt; Contempt of Congress; Direct contempt.

Contempt of court;

CONTENT VALIDATION

3 19

Lat. Contemp In old English law, contempt, contempts.

or resistance to its lawful writ, process, order, rule, decree, or command. 18 V.S.C.A. § 401.

Deliberate interference with duties and powers of Congress. Both houses of Congress may cite an individual for such contempt.

Contempt for failure to make discovery is governed by Fed.R. Civil P. 37(b), which provides for imposition of sanctions. See also Sanction.

Contemptibiliter /k;mtEHn(p)t�bil�t�r/.

tuously.

Contempt of Congress.

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. Committed by a person who does any act in willful contravention of its authority or dignity, or tend ing 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 law ful orders or fails to comply with an undertaking which he has given.

Contempt of court.

Classification

Contempts are, generally, of two kinds, direct and constructive. Direct contempts are those committed in the immedi ate 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. People v. Edwards, 69 Ill.App.3d 626, 26 Ill.Dec. 139, 387 N.E.2d 969. They are also called "criminal" contempts, but that term is better used in contrast with "civil" contempts (see below). 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. McGill v. McGill, 3 Ohio App.3d 455, 445 N.E.2d 1163. Construc tive 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 consist 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 man date of the court was issued, and a fine is imposed for his indemnity. But criminal contempts are offenses upon the court such as wilful disobedience of a lawful writ, process, order, rule, or command of court, and a fine or imprisonment is imposed upon the contemnor for the purpose of punishment. Fed.R.Crim.Proc. 42; 18 V.S.C.A. § 402. A court of the Vnited States has power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as: (1) misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) misbehavior of any of its officers in their official transactions; (3) disobedience

Every court has inherent power to punish one for contempt of its judgments or decrees and for conduct within or proximate to the court which is contemptuous. See also Contempt of Congress; Con

Contempt power.

tempt of court; Sanction.

The judicial hearing or trial conducted to determine whether one has been in con tempt of court and to make an appropriate disposition. Such proceedings are sui generis and not necessarily connected to or identified with the proceeding out of which the contempt arose.

Contempt proceeding.

Contenementum

/k�nten�m€mt�m/.

See Wainagium;

Contentment. Contentious /k�nt€msh�s/.

Contested; adversary; liti gated between adverse or contending parties. A judicial proceeding not merely ex parte in its character, but comprising attack and defense as between opposing par ties, is so called. Character of being quarrelsome or belligerent. That part of jurisdiction of court that is concerned with contested matters, as op posed to voluntary, undisputed matters. In English ecclesiastical law, that branch of the jurisdiction of the ecclesiastical courts which is exercised upon adversary or contentious (opposed, litigated) proceedings.

Contentious jurisdiction.

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 subordina tion thereto) and that the opposition must be based on good grounds, or such as might be made the subject of litigation.

Contentious possession.

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 i;heir several qualities or states of life.

Contentment, contenement.

Comfort; consolation; pleasure; satisfaction.

ease; enjoyment; happiness;

In English parliamentary law, the "contents" are those who, in the house of lords, express assent to a bill; the "not" or "non-contents" dissent.

Contents and not contents.

Contents unknown. Words sometimes annexed to a bill

of lading of goods in cases or other packaging. Their meaning is that the carrier only means to acknowledge that the shipment, as evidenced from the external condi tion of such, is in good order. Content validation of a test re quires that an analysis of a job involved be undertaken to determine what characteristics are essential for ade-

Content validation.

CONTENT VALIDATION

320

quate performance of that job and the job analysis is then followed by formulation of a test which accurately reflects presence or absence of these necessary qualities. Com. of Pa. v. Glickman, D.C.Pa., 370 F.Supp. 724, 737. Ikont;}rm:m::ls/. Adjacent; having a common boundary; coterminous.

Conterminous

adjoining;

To assert a defense to an adverse claim in a court proceeding. To oppose, resist, or dispute the case made by a plaintiff or prosecutor. To strive to win or hold. To controvert, litigate, call in question, challenge. To defend, as a suit or other proceeding. As used in a no-contest clause in a will, means any legal proceedings designed to thwart testator's wishes. In re Holter mann's Estate, 206 C.A.2d 460, 23 Cal. Rptr. 685, 690. See Answer; Defense.

Contest, v.

Provision in an insurance policy setting forth the conditions under which, or the period of time during which, the insurer may contest or void the policy.

Contestable clause.

Contestatio litis Ikont::lsteysh(iy)ow layt::ls/.

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. In old English law, coming to an issue; the issue so produced.

Contestatio

litis

eget

terminos

contradictarios

Ikont::lsteysh(iy)ow layt::ls iyj::lt t;}rm::lnows kontr::ldikteri yows/. An issue requires terms of contradiction. To constitute an issue, there must be an affirmative on one side and a negative on the other. In an ecclesiastical cause, that stage of the suit which is reached when the defendant has answered the libel by giving in an allegation. See also Answer; Contest; Defense.

Contestation of suit.

A court or administrative proceeding that is opposed by another party or interested person. Within the meaning of the Administrative Procedure Act this means a proceeding including but not restricted to rate making, price fixing, and licensing in which the legal rights, duties or privileges of a party are required by constitution or statute to be determined by an agency after an opportunity for an evidentiary hearing. Oliver v. Teleprompter Corp., Iowa, 299 N.W.2d 683, 686.

Contested case.

An election is 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 provi sion and to such as are based on statutes.

Contested election.

Contest of will.

See Will contest.

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 sometimes be scrutinized, to aid in the interpretation of an obscure passage. See Construction.

Context.

Exists where tracts of land touch or adjoin in a reasonably substantial physical sense, but line of demarcation between reasonableness or unreasonable ness of a "contiguity" must be determined on the facts of each case. Belmont Fire Protection Dist. v. Village of Downers Grove, 92 Ill.App.3d 682, 48 Ill.Dec. 261, 264, 416 N.E.2d 292, 295.

Contiguity.

Contiguous Ik::lntigyuw::ls/.

In close proximity; neigh boring; adjoining; near in succession; in actual close contact; touching at a point or along a boundary; bounded or traversed by. The term is not synonymous with "vicinal." Ehle v. Tenney Trading Co., 56 Ariz. 241, 107 P.2d 210, 212.

Continencia IkontinensiY::l/.

In Spanish law, continen cy or unity of the proceedings in a cause.

Continens Ik6nt::ln::lnz/.

holding together. continentia.

In the Roman law, continuing; Adjoining buildings were said to be

Pertaining or relating to a continent; characteristic of a continent; as broad in scope or pur pose as a continent.

Continental.

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 del egates were in some cases chosen by the legislative assemblies in the states; in others by the people direct ly. 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 indepen dence.

Continental Congress.

Paper money issued under the authority of the continental congress.

Continental currency.

Continentia Ikont::lnensh(iY)::I/.

continuance or connection. in a cause.

In old English practice, Applied to the proceedings

Contingency Ik::lntinj::lnsiy I.

Something that may or may not happen. Quality of being contingent or casual; the possibility of coming to pass; an event which may occur; a possibility; a casualty. A fortuitous event, which comes without design, foresight, or expectation. See also Contingent. A contract, part of performance of which at least is dependent on the happening of a contingency. Sometimes used to refer to fee arrange ment with attorney who agrees to accept his fee on the contingency of a successful outcome. See Fee.

Contingency contract.

In accounting, a re serve set up to cover possible or potential losses; e.g. possible judgment against company.

Contingency reserve (or fund).

A fund created in anticipation of incidental or unfore seen expenditures. A remainder is said to be "in a contingency with double aspect," when there is another remainder limited on the same estate, not in

Contingency with double aspect.

321

CONTINUING OFFENSE

derogation of the first, but as a substitute for it in case it should fail. Contingent /k:mtinj�nt/.

Possible, but not assured; doubtful or uncertain; conditioned upon the occurrence of some future event which is itself uncertain, or ques tionable. Synonymous with provisional. 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. As to contingent Damages; Fee; Legacy; Limitation; Remainder; Trust; Use, and Will, see those titles.

Contingent beneficiary. Person who may or will bene

fit if primary beneficiary dies or otherwise loses rights as beneficiary; e.g. person who will receive life insur ance if primary beneficiary dies before insured. One which has not accrued and which is dependent on some future event that may never happen.

Contingent claim.

One which is not presently fixed, but may become so in the future with the occurrence of some uncertain event. A debt in bankruptcy which may be proved and allowed and which arises out of contract. It does not encompass a tort claim on which no action or suit has been brought prior to adjudication. Resolute Ins. Co. v. Underwood, La.App., 230 So.2d 433, 435. Term may refer to debt incurred by state to which state pledges its credit and guarantees payment if revenues from funded project prove inadequate. Rochlin v. State, 112 Ariz. 171, 540 P.2d 643. See also Contingent claim;

Contingent debt.

Contingent liability.

An estate, inter est or right which depends for its effect upon an event which may or may not happen. A contingent estate is one which is conditioned upon the existence of persons who answer the description of takers but who cannot be ascertained until the termination of a precedent or particular estate because the right to take is contingent upon the fact of their being alive or having survived until that time or upon the happening of some other uncertain event. Houston v. Harberger, Tex.Civ.App., 377 S.W.2d 673, 678.

Contingent estate, interest or right.

Contingent fee.

See Fee.

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. See also Contingency reserve.

Contingent fund.

A future interest not transmissible to the representatives of the party entitled thereto, in case he dies before it vests in possession. 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.

Contingent interest in personal property.

Black's Law Dictionary 6th Ed.-8

One which is not now fixed and absolute, but which will become so in case of the occur rence of some future and uncertain event. Warren Co. v. C. I. R., C.C.A.Ga., 135 F.2d 679, 684, 685. A potential liability; e.g. pending lawsuit, disputed claim, judgment being appealed, possible tax deficiency. See also Contin

Contingent liability.

gent claim; Contingent debt. Contingent remainder.

See Remainder.

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. 3 Bl.Comm. 175.

Continual claim.

The adjournment or postponement of a session, hearing, trial, or other proceeding to a subse quent day or time; usually on the request or motion of one of the parties. 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. Compare Recess.

Continuance.

Continuance nisi /k�ntinyuw�ns naysay /.

A postpone ment on a condition or for a specific period of time.

Continuando /k�ntinyuwrendow /.

In old pleading, a form of allegation in which the trespass, criminal of fense, 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." 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 occur rences.

Continuing.

As to continuing Breach; Consideration; Conspiracy; Covenant; Damages; G uaranty; and Nuisance, see those titles. See also Perpetuity. A contract calling for periodic performances over a space of time.

Continuing contract.

A doctrine invoked commonly in child custody or support cases by which a court which has once acquired jurisdiction continues to possess it for purposes of amending and modifying its orders therein. Curtis v. Gibbs, Tex., 511 S.W.2d 263.

Continuing jurisdiction.

Type of crime which is committed over a span of time as, for example, a conspiracy. As to period of statute of limitation, the last act of the offense controls for commencement of the period. A "continu ing offense," such that only the last act thereof within the period of the statute of limitations need be alleged in

Continuing offense.

CONTINUING OFFENSE the indictment or information, is one which may consist of separate acts or a course of conduct but which arises from that singleness of thought, purpose or action which may be deemed a single impulse. U. S. v. Benton & Co., Inc., D.C.Fla., 345 F.Supp. 1 101, 1 103. See also Crime; Offense.

The death or other withdrawal of an owner of an entity does not terminate the existence of such entity. This is a characteristic of a corporation, since the death or withdrawal of a share holder does· not affect the corporation's existence.

Continuity of life or existence.

Uninterrupted; unbroken; not intermit tent or occasional; so persistently repeated at short intervals as to constitute virtually an unbroken series. 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 Easement, see those titles.

Continuous.

Term is interchangeable with the term "uninterrupted adverse use".

Continuous adverse use.

One recurring at repeated inter vals, so as to be of repeated occurrence; not necessarily an injury that never ceases.

Continuous injury.

Under this doctrine, the time in which to bring a medical malpractice action is stayed when the course of treatment which includes wrongful acts or omissions has run continuously and is related to the same original condition or complaint. Lomber v. Farrow, 91 A.D.2d 725, 457 N.Y.S.2d 638, 640.

Continuous treatment doctrine.

Continuously. Uninterruptedly; in unbroken sequence;

without intermission or cessation; without intervening time; with continuity or continuation. Map which shows the configuration and elevation of surface areas with curved lines.

Contour map.

Against, confronting, opposite to; on the other hand; on the contrary; the reverse of.

Contra.

Contra account.

See Account (Contra).

In general, any property which is unlaw ful to produce or possess. Things and objects outlawed and subject to forfeiture and destruction upon seizure. Com. v. One 1958 Plymouth Sedan, 414 Pa. 540, 201 A.2d 427, 429. Goods exported from or imported into a country against its laws. Smuggled goods. Articles, the importation or exportation of which, is prohibited by law. See e.g. 49 U.S.C.A. § 78l. Trafficking in contraband cigarettes is a federal crime. 18 U.S.C.A. § 2341 et seq. "Contraband per se" is property the mere possession of which is unlawful, while "derivative contraband" is property innocent by itself but used in perpetration of unlawful act. Com. v. Fassnacht, 246 Pa.Super. 42, 369 A.2d 800, 802. See also Bootlegging; Counterfeit; Derivative contra

Contraband.

band; Gray market goods; Smuggling. Contraband of

war.

Certain classes of merchandise,

such as arms and ammunition, which, by the rules of international law, cannot lawfully be furnished or car-

322

ried 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. bono� mores Ik6ntr;} b6wnows m6riyzl. Against good morals. Contracts contra bonos mores are void.

Contra

Ikontr;}kozeyt;}r/. prosecuted for a crime.

Contracausator

A criminal;

one

Contraceptive. Any device or substance which prevents

fertilization of the female ovum. The offense of distributing or pre scribing contraceptives; the offense has little or no vitality today with respect to both married and unmar ried persons. Baird v. Eisenstadt, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349.

Contraceptivism.

An agreement between two or more persons which creates an obligation to do or not to do a particu lar thing. As defined in Restatement, Second, Contracts § 3: "A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the perform ance of which the law in some way recognizes as a duty." A legal relationship consisting of the rights and duties of the contracting parties; a promise or set of promises constituting an agreement between the parties that gives each a legal duty to the other and also the right to seek a remedy for the breach of those duties. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement, and mutu ality of obligation. Lamoureux v. Burrillville Racing Ass'n, 91 R.1. 94, 161 A.2d 213, 215.

Contract.

Under U.C.C., term refers to total legal obligation which results from parties' agreement as affected by the Code. Section 1-201(11). As to sales, "contract" and "agreement" are limited to those relating to present or future sales of goods, and "contract for sale" includes both a present sale of goods and a contract to sell goods at a future time. U.C.C. § 2-106(1). The writing which contains the agreement of parties, with the terms and conditions, and which serves as a proof of the obligation. Contracts may be classified on several different meth ods, according to the element in them which is brought into prominence. The usual classifications are as fol lows:

Blanket contract. Contract covering a number or group of products, goods, or services for fixed period of time. 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. 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 consid eration of what is done, given, or promised by the other.

323 Independent contracts are those in which the mutual acts or promises have no relation to each other, either as equivalents or as considerations.

Conditional contract. A contract whose very existence and performance depends upon the happening of some contingency or condition expressly stated therein. 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 perform ance depend upon a contingency. Consensual and real. Consensual contracts are such as are founded upon and completed by the mere agreement of the contracting parties, without any external formali ty 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). In the common law a contract respecting real property (such as a lease of land for years) is called a "real" contract. Constructive contract. See Constructive contract; also Express and implied; Quasi contract, below. Cost-plus contract. See Costs. 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 A2d 507, 509. When a consideration is entire and indivisible, and it is against law, the contract is void in toto. When the consideration is divisible, and part of it is illegal, the contract is void only pro tanto. Gelpcke v. Dubuque, 68 U.S. (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 consider ation, 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 con tract 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 corresponds to a sam ple. 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

CONTRACT distinct contracts, entered into at one time, and ex pressed 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.

Entire contract clause. A provision in the insurance contract stating that the entire agreement between the insured and insurer is contained in the contract, includ ing the application (if attached), declarations, insuring agreement, exclusions, conditions, and endorsements. Exclusive contract. contract, below.

See Requirements contract; Tying

Executed and executory. Contracts are also divided into executed and executory; executed, where nothing re mains to be done by either party, and where the transac tion 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. 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. 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 under standing. An implied contract is one inferred from conduct of parties and arises where plaintiff, without being request ed to do so, renders services under circumstances indi cating that he expects to be paid therefor, and defen dant, knowing such circumstances, avails himself of benefit of those services. Chem-Tronix Laboratories, Inc. v. Solocast Co., AD., 5 Conn.Cir. 533, 258 A2d 1 10, 113. It is an agreement which legitimately can be inferred from intention of parties as evidenced by cir cumstances and ordinary course of dealing and common understanding of men. Martin v. Little, Brown & Co., 304 Pa.Super. 424, 450 A.2d 984, 987. See also Constructive contract; and Quasi contract, below. 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 re ceived or promised as a consideration for it. It is not, however, the less gratuitous if it proceeds 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

CONTRACT the engagement or gift, or some service, interest, or condition is imposed on what is given or promised, although unequal to it in value. A gratuitous contract is sometimes called a contract of beneficence.

Investment contract. A contract in which one party invests money or property expecting a return on his investment. See also I nvestment contract; Security. 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 person has a legal right (either from the terms of the agreement or the nature of the undertaking) to enforce his individual interest sepa rately from the other parties. 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. Mutual interest, mixed, etc. Contracts of "mutual inter est" 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. Con tracts "of beneficence" are those by which only one of the contracting parties is benefited; as loans, deposit and mandate. Open end contract. Contract (normally sales contract) in which certain terms (e.g. order amount) are deliberately left open. Output contract. A contract in which one party agrees to sell his entire output and the other agrees to buy it; it is not illusory, though it may be indefinite. Such agreements are governed by V.C.C. § 2-306. See also Requirements contract, below. Parol contract. A contract not in writing, or partially in writing. At common law, a contract, though it may be in writing, not under seal. See Parol evidence rule. Personal contract. A contract relating to personal prop erty, or one which so far involves the element of person al 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. 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. Principal and accessory contract. A contract is accesso ry when it is made to provide security for the perform ance of an obligation. Suretyship, mortgage, and pledge are examples of such a contract. When the secured obligation arises from a contract, either between the same or other parties, that contract is the principal contract. Civ.Code La. art. 1913.

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Quasi contract. Legal fiction invented by common law courts to permit recovery by contractual remedy in cases where, in fact, there is no contract, but where circum stances are such that justice warrants a recovery as though there had been a promise. It is not based on intention or consent of the parties, but is founded on considerations of justice and equity, and on doctrine of unjust enrichment. 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 mon ey, or its equivalent, under such circumstances that in equity and good conscience he ought not to retain it. 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. See also Constructive contract.

In the civil law, a contractual relation arising out of transactions between the parties which give them mutu al rights and obligations, but do not involve a specific and express convention or agreement between them. 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.

Record, specialty, simple. Contracts of record are such as are declared and adjudicated by courts of competent jurisdiction, or entered on their records, including judg ments, recognizances, and statutes staple. 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. 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. Requirements contract. A contract in which one party agrees to purchase his total requirements from the other party and hence it is binding and not illusory. See also Output contract, above. Shipment contract.

See that title.

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 trans action. 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 con tracts relating to the same subject-matter. Subcontract. A contract subordinate to another con tract, made or intended to be made between .the con tracting parties, on one part, or some of them, and a

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third party (i.e. subcontractor). One made under a prior contract. 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 "subcontractor." The term "subcontractor" means one who has contracted with the original contrac tor for the performance of all or a part of the work or services which such contractor has himself contracted to perform.

Tying contract. See Tying arrangement. 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. A contract the terms of which are excessively unreasonable, overreaching and one-sided. See Adhesion contract; Unconscionability. Unenforceable contract. An unenforceable contract is one for the breach of which neither the remedy of damages nor the remedy of specific performance is avail able, but which is recognized in some other way as creating a duty of performance, though there has been no ratification. Restatement, Second, Contracts § 8. When a contract has some legal consequences but may not be enforced in an action for damages or specific performance in the face of certain defenses, such as the Statute of Frauds or a statute of limitations, the con tract is said to be "unenforceable." Unilateral and bilateral. A unilateral contract is one in which one party makes an express engagement or un dertakes 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 engage ments, such as sale or hire. Kling Bros. Engineering Works v. Whiting Corporation, 320 Ill.App. 630, 51 N.E.2d 1004, 1007. When the party to whom an engage ment 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. Es sence of a "unilateral contract" is that neither party is bound until the promisee accepts the offer by perform ing the proposed act. King v. Industrial Bank of Wash ington, D.C.App., 474 A.2d 151, 156. It consists of a promise for an act, the acceptance consisting of the performance of the act requested, rather than the prom ise to perform it. Antonucci v. Stevens Dodge, Inc., 73 Misc.2d 173, 340 N.Y.S.2d 979, 982. Compare Bilateral

Written contract. A "written contract" is one which in all its terms is in writing. Commonly referred to as a formal contract. See also Adhesion contract; Agreement; Aleatory of contract; Alteratio.1 of contract; Bilateral contract; Bottom hole contract; Breach of contract; Collateral contract; Compact; Constructive contract; Contingency contract; Entire output contract; Executory contract; Formal con tract; Futures contract; Impairing the obligation of con tracts; I ndemnity; Innominate contracts; Installment con tract; I ntegrated contract; I nvestment contract; Letter contract; Letter of intent; Literal contract; Marketing con tract; Novation; Oral contract; Parol evidence rule; Privi ty (Privity of contract); Procurement contract; Quasi con tract; Requirement contract; Severable contract; Simulat ed contract; SpeCialty. For "liberty of con tract", see Liberty. A carrier which furnishes transporta tion service to meet the special needs of shippers who cannot be adequately served by common carriers. Sa mardick of Grand Island-Hastings, Inc. v. B. D. C. Corp., 183 Neb. 229, 159 N.W.2d 310, 315. A transportation company that carries, for pay, the goods of certain customers only as contrasted to a common carrier that carries the goods of the public in general.

Contract carrier.

Contract clause. Provision in U.S.Const., Art. I, Sec. 10,

to the effect that no state shall pass a law impairing obligation of contract. Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629. "Estoppel by contract" is in tended to embrace all cases in which there is an actual or virtual undertaking to treat a fact as settled. It means party is bound by terms of own contract until set aside or annulled for fraud, accident, or mistake. Unit ed Fidelity Life Ins. Co. v. Fowler, Tex.Civ.App., 38 S.W.2d 128, 131. 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 con tract. Finch v. Smith, 177 Okl. 307, 58 P.2d 850, 851.

Contract, estoppel by.

An agreement by a seller to deliver the deed to the property when certain conditions have been met, such as completion of payments by purchaser. Often such contracts for deed are in turn resold.

Contract for deed.

Contract for sale of goods. Includes both a contract for

present sale of goods and a contract to sell goods at a future time. U.C.C. § 2-106(1). A contract which calls for conveyance of interest in real estate and requires a writing signed by party sought to be charged as being within Statute of Frauds. See also Contract for deed;

Contract for sale of land.

Contract of sale.

contract.

Contract implied in fact.

See Contract.

Usurious contract. See Usurious contract.

Contract implied in law.

See Contract.

Voidable contract. See Voidable contract. Void contract. See Void contract.

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.

Contraction.

CONTRACTION This was customary in records written in the ancient "court hand," and is frequently found in the books printed in black letter. Contract not to compete. An agreement by an employ

ee that he will not for a stated period and within a specific geographical area compete with his employer after termination of his employment. These contracts are enforceable if the time span and area are reason able.

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his work and not as to the means by which it is accom plished. Setzer v. Whitehurst, Ky., 339 S.W.2d 454, 456. One who in pursuit of independent business under takes to perform a job or piece of work, retaining in himself control of means, method and manner of accom plishing the desired result.

See also General contractor; Independent contractor; Prime contractor; Subcontractor. As applied to state prisons, this phrase signifies that the labor of the prisoners is utilized by private persons or contractors.

A contract for hiring a vessel. Peterson v. S. S. Wahcondah, D.C.La., 235 F.Supp. 698, 700. See also Affreightment.

Contract system.

A contract made for the benefit of one of the contracting parties only, as a mandate or deposit.

Contractual obligation.

Contract of affreightment.

Contract of benevolence.

A promise to pay or an assump tion of performance of some duty upon the failure of another who is primarily obligated in the first instance. Ammerman v. Miller, 488 F.2d 1285, 1293, 159 U.S.App. D.C. 385. See also Guaranty.

Contract of guaranty.

Any contract by which one of the parties for a valuable consideration, known as a premium, assumes a risk of loss or liability that rests upon the other, pursuant to a plan for the distribution of such risk, is a contract of insurance, whatever the form it takes or the name it bears. See I nsurance; Policy of

Contract of insurance.

insurance.

A contract 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 record.

A contract by which one of the con tracting parties, called the "seller," enters into an obli gation 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. Agreement under which seller agrees to convey title to property upon payment by buyer under terms of contract. See also Contract for deed; Contract for sale of land.

Contract of sale.

One who contracts to do work for another. This term is strictly applicable to any person who enters into a contract, but is commonly reserved to designate one who, for a fixed price, undertakes to procure the performance of works or services on a large scale, or the furnishing of goods in large quantities, whether for the public or a company or individual. Such are generally classified as general contractors (responsible for entire job) and sub-contractors (responsible for only portion of job; e.g. plumber, carpenter).

Contractor.

A contractor is a person who, in the pursuit of any independent business, undertakes to do a specific piece of work for another or other persons, using his own means and methods without submitting himself to their control in respect to all its details, and who renders service in the course of an independent occupation rep resenting the will of his employer only as to the result of

The obligation which arises from a contract or agreement. For centuries before the doctrine of consideration was developed, and long before informal contracts were enforced, contracts under seal were en forced. The sealed instrument required no considera tion. The required formalities are: a sufficient writing, a seal, and delivery. The seal may be actual, or im pressed on the paper, or merely recited by the word "seal" or "L.S."

Contract under seal.

Contractus.

Lat. Contract; a contract; contracts.

Contractus bome fidei /k;mtrrekt;)s b6wniy fitydiyay/.

In Roman law, contracts of good faith. Those contracts which, when brought into litigation, were not deter mined by the rules of the strict law alone, but allowed the judge to examine into the bona fides of the transac tion, 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 /k;mtrrekt;)s siv;)liyz/.

In Roman law, civil contracts. Those contracts which were recog nized as actionable by the strict civil law of Rome, or as being founded upon a particular statute, as distin guished from those which could not be enforced in the courts except by the aid of the prretor, who, through his equitable powers, gave an action upon them. The latter were called "contractus prretorii. "

Contractus est quasi actus contra actum /k;)ntrrekt;)s

est kweysay rekt;)s k6ntr;) rekt;)m/. were, act against act.

A contract is, as it

Contractus ex turpi causa, vel contra bonos mores, nullus est /k;)ntrrekt;)s eks t:}rpay k6z;), vel k6ntr;) b6w nows m6riyz, n:}};)s est/. A contract founded on a base consideration, or against good morals, is null. Contractus

legem

conventione

accipiunt

/k.mtrrekt;)s liyj;)m eks k;)nvenshiy6wniy ;)ksipiy;)nt/. Contracts receive legal sanction from the agreement of the parties. To disprove. To prove a fact contrary to what has been asserted by a witness.

Contradict.

327

CONTRAROTULATOR

A phrase of which the parts are expressly inconsistent, as e.g., "an innocent mur der"; "a fee-simple for life."

Ikontr�bgeysh(iy)ow/. In old English law, counter-obligation. Literally, counter-binding. Est enim obligatio quasi contraligatio.

Contradiction in terms.

Contraligatio

Contraescritura Ikontraeskritur�/.

Contramandatio Ikontr�mrendeysh(iy)ow/.

In Spanish law, a counter-writing; counter-letter. A document executed at the same time with an act of sale or other instru ment, and operating by way of defeasance or otherwise modifying the apparent effect and purport of the origi nal instrument.

Contrafactio Ikontr�freksh(iy)ow I.

Counterfeiting; as contrafactio sigilli regis, counterfeiting the king's seal. formam collationis Ikontr� form�m k�ley shiyown�s/. 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.

Contra

formam doni Ikontr� form�m downayI. Against the form of the grant. See Formedon.

Contra

formam feoffamenti Ikontr� form�m fiyf� mentay/. 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.

Contra

Contra formam statuti Ikontr� form�m st�ty6.wtayI.

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. Contrainte par corps Ikontreynt par kor/.

In French law, the civil process of arrest of the person, which is imposed upon vendors falsely representing their proper ty to be unincumbered, or upon persons mortgaging property which they are aware does not belong to them, and in other cases of moral heinousness.

Contra jus belli Ikontr� j�s belay I.

Lat.

Against the

law of war.

A counter manding. Contramandatio placiti, in old English law, was the respiting of a defendant, or giving him further time to answer, by countermanding the day fixed for him to plead, and appointing a new day; a sort of imparlance.

Contramandatum Ikontr�mrendeyt�m/.

A lawful ex cuse, which a defendant in a suit by attorney alleges for himself to show that the plaintiff has no cause of com plaint.

Contra negantem principia non est disputandum

Ikontr� n�grent�m prinsipiy� non est dispyuwtrend�m/. There is no disputing against one who denies first prin ciples. Contra non valentem agere nulla currit prrescriptio

Ikontr� non v�lent�m eyj�riy n�b k�hr�t pr� skripsh(iy)ow/. No prescription runs against a person unable to bring an action. Contra omnes gentes Ikontr� omniyz jentiyz/.

Against all people. Formal words in old covenants of warranty.

Contra pacem Ikontr� peys�m/.

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, i.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.

Contraplacitum Ikontr�plres�t�m/. Contrapositio Ikontr�p�zish(iy)ow/.

a plea or answer.

In old English law, A counter-position.

Contra preferentem Ikontr� prer�rent�m/.

Against the party who proffers or puts forward a thing. As a rule of strict construction, "contra proferentem," requires that contract be construed against person preparing terms thereof. Matter of City Stores Co., Bkrtcy.N.Y., 9 B.R. 717, 720.

Contra proferentem Ikontr� prOf�rent�m/.

Contra jus commune Ikontr� j�s k�myuwniy I.

Against common right or law; contrary to the rule of the com mon law.

Contra legem facit qui id facit quod lex prohibet; in fraudem vero qui, salvis verbis legis, sententiam

Used in connection with the construction of written documents to the effect that an ambiguous provision is construed most strongly against the person who selected the lan guage. U. S. v. Seckinger, 397 U.S. 203, 216, 90 S.Ct. 880, 25 L.Ed.2d 224.

ejus circumvenit Ikontr� liyj�m feys�t kway id feys�t

Contrarients Ik�ntreriy�nts/.

kwod leks pr�hib�t; in frod�m virow kway, srelv�s v�rb�s liyj�s, sentensh(iy)�m iyj�s s�rk�mriyn�tI. He does con trary 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.

Contrariorum

Contra legem terrre Ikontr� 1iyj�m rehriy I.

law of the land.

In old English law,

a counter-plea.

Against the

This word was used in the time of Edw. II to signify those who were opposed to the government, but were neither rebels nor traitors. contraria

ratio Ikontreriyor�m The reason of contrary

est

k�ntreriy� est reysh(iy)ow/. things is contrary.

Contrarotulator Ikontr�rowty�leyt�r/kontr�rowty�leyt�

r/. A controller. One whose business it was to observe

CONTRAROTULATOR

328

the money which the collectors had gathered for the use of the king or the people. Contrarotulator pipee Ikontr�rowty�leyt�r paypiy I.

An officer of the exchequer that writeth out summons twice every year, to the sheriffs, to levy the rents and debts of the pipe.

Against; conflict with.

Contrary.

opposed or in opposition to;

Against the evidence; against the weight of the evidence. the

evidence.

Contrat IkontrM.

In French law, contracts are of the following varieties: (1) Bilateral, or synallagmatique, where each party is bound to the other to do what is just and proper; or (2) unilateral, where the one side only is bound; or (3) commutatif, where one does to the other something which is supposed to be an equivalent for what the other does to him; or (4) aleatoire, where the consideration for the act of the one is a mere chance; or (5) contrat de bienfaisance, where the one party procures to the other a purely gratuitous benefit; or (6) contrat it titre onereux, where each party is bound under some duty to the other. See Contract.

Contra tabulas Ik6ntr� treby�l�s/.

In the civil law,

against the will (testament). Contratallia Ikontr�treliy�/.

In old English law, a counter-tally. A term used in the exchequer.

Contratatio rei alienee animo furandi, est furtum

Ikontr�teysh(iy)ow riyay eyliyiyniy ren�mow fy�rrenday est f;)rt�m/. The touching or removing of another's property, with an intention of stealing, is theft. Contratenere Ikontr�t�niriy I.

To hold against; to with

hold. vadium et plegium Ik6ntr� vrediy�m �t plejiy�m/ . In old English law, against gage and pledge.

Contra

A right or equity, in another person, which is inconsistent with and opposed to the equity sought to be enforced or recognized.

Contravening equity.

In French law, an act which violates the law, a treaty, or an agreement which the party has made. That infraction of the law punished by a fine which does not exceed fifteen francs and by an imprison ment not exceeding three days.

Contravention.

Contra veritatem

Contrectatio rei alienee, animo furandi, est furtum

Ikontr�kteysh(iy)ow riyay eyliyiyniy, ren�mow fy�rrenday, est f;)rt�m/. The touching or removing of another's property, with an intention of stealing, is theft. Contrefacon Ikontr�fas6n/.

Illegal; in violation of statute or legal regulations at a given time. In respect of verdict, in conflict with the law contained in court's instructions.

Contrary to law.

Contrary to

removing a thing from its place in such a manner that, if the thing be not restored, it will amount to theft.

lex nunquam aliquid permittit

Ik6ntr� v�r�teyt�m leks n;)IJkw�m rel�kw�d p�rmit�t/. The law never suffers anything contrary to truth. Contrectare Ikontr�kteriy/.

Lat. In the civil law, to handle; to take hold of; to meddle with.

In old English law, to treat. shall ill treat.

Vel male contrectet; or

Contrectatio Ikontr�kteysh(iy)ow/.

In the civil and old English law, touching; handling; meddling. The act of )

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.

Ikontre-maytr(�)/. 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.

Contre-maitre

To lend assistance or aid, or give some thing, 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. 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. See Negligence (Contributory neg ligence).

Contribute.

Generic term used to describe any factor which contributes to a result, though its causal nexus may not be immediate. See Cause; Negligence (Contributory negligence).

Contributing cause.

A criminal offense con sisting of an act or omission which tends to make a child delinquent.

Contributing to delinquency.

Right of one who has discharged a com mon liability to recover of another also liable, the ali quot portion which he ought to pay or bear. Under principle of "contribution," a tort-feasor against whom a judgment is rendered is entitled to recover proportional shares of judgment from other joint tort-feasors whose negligence contributed to the injury and who were also liable to the plaintiff. Dawson v. Contractors Transport Corp., 151 U.S.App.D.C. 401, 467 F.2d 727, 729. The share of a loss payable by an insurer when contracts with two or more insurers cover the same loss. The insurer's share of a loss under a coinsurance or similar provision. 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. A number of states have adopted the Uniform Contribution Among Tortfeasors Act.

Contribution.

In the civil law, a partition by which the creditors of an insolvent debtor divide among themselves the pro ceeds of his property proportionably to the amount of their respective credits. 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.

CONTROLLED SUBSTANCE ACTS

329

In maritime law, where the property of one of several parties interested in a vessel and cargo has been volun tarily 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 "general average".

See also General average contribution; Indemnity. Insurance clause providing that where more than one policy covers loss, insurers shall share such loss proportionally in accordance with their policy limits.

Contribution clause.

Contributione facienda /kontr;}byuwshiy6wniy freshiy

end;}/. 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. Contribution to capital. Funds or property contributed

by shareholders as the financial basis for operation of the corporation's business, and signifies resources whose dedication to users of the corporation is made the foun dation for issuance of capital stock and which became irrevocably devoted to satisfaction of all obligations of corporation. See also Capital. One who contributes or is required to contribute. 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.

Contributory, n.

Joining in purpose; lending assistance to result. Said of a pension plan as employers, make payments

Contributory, ad}.

the promotion of a given the production of a given where employees, as well to a pension fund.

As to contributory Infringement and Negligence, see those titles.

See Cause; Contributing cause; Negligence (Contributory negligence).

Contributory cause.

The intentional aiding of one person by another in the unlawful making, selling or using of a patented invention. Stamicarbon, N.V. v. McNally-Pittsburg Mfg. Corp., D.C.Kan., 302 F.Supp. 525, 531.

Contributory infringement.

Contributory negligence.

See Negligence.

Contrivance. Any device which has been arranged gen

erally to deceive. An instrument or article designed to accomplish a specific objective and made by use of measure of ingenuity. Contrive. To devise; to plan; to plot; to scheme.

Ernst and Ernst v. Hochfelder, 425 U.S. 185, 199, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668.

To exercise restraining or directing influ ence over. To regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern.

Control, v.

Power or authority to manage, direct, supe rintend, restrict, regulate, govern, administer, or over see. The ability to exercise a restraining or directing influence over something. Martin v. State, 175 Ind.App. 503, 372 N.E.2d 1194, 1197. The "control" involved in

Control, n.

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. As used in statute making it unlawful for any person to possess or "control" any narcotic drug, is given its ordinary meaning, namely, to exercise restraining or directing influence over, and also has been defined to relate to authority over what is not in one's physical possession. Speaks v. State, 3 Md.App. 371, 239 A.2d 600, 604. Rule that 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.

See also Exclusive control; I mmediate control. With reference to those whose commu nications with an attorney on behalf of a corporation are within the attorney-client privilege, this group consists of those persons who have authority to control, or sub stantially participate in, decisions regarding action to be taken on the advice of a lawyer, or who are authorized members of a group that has such power. Duplan Corp. v. Deering Milliken, Inc., D.C.S.C. 397 F.Supp. 1146, 1163.

Control group.

A company, the majority of whose voting stock is held by an individual or corpora tion. For example, a subsidiary of a parent company. The level of control depends on the amount of stock owned. See Control person.

Controlled company.

Any foreign corpora tion in which more than 50 percent of the total com bined voting power of all classes of stock entitled to vote or the total value of the stock of the corporation is owned by "U.S. shareholders" on any day during the taxable year of the foreign corporation. For purposes of this definition, a U.S. shareholder is any U.S. person who owns, or is considered as owning, 10 percent or more of the total combined voting power of all classes of voting stock of the foreign corporation. Stock owned directly, indirectly, and constructively is used in this measure.

Controlled foreign corporation.

Controlled group. A controlled group of corporations is

required to share the lower-level corporate tax rates and various other tax benefits among the members of the group. A controlled group may be either a brother-sis ter or a parent-subsidiary group. Any drug so designated by law whose availability is restricted; i.e., so designated by federal or state Controlled Substances Acts (q. v.). In cluded in such classification are narcotics, stimulants, depressants, hallucinogens, and marijuana.

Controlled substance.

Controlled Substance Acts. Federal and state acts (the

latter modeled on the Uniform Controlled Substances Act) the purpose of which is to control the distribution,

CONTROLLED SUBSTANCE ACTS classification, sale, and use of drugs. The majority of states have such acts. 21 U.S.C.A. § 801 et seq. Controller.

See Comptroller.

Controlment Ik;mtrolm;}nt/.

In old English law, the controlling or checking of another officer's account; the keeping of a counter-roll.

In securities law, a person who has actual power or influence over an issuer. Kersh v. General Council of Assemblies of God, C.A.Cal., 804 F.2d 546, 548. One who formulates and directs corporate policy or who is deeply involved in the important busi ness affairs of a corporation. State ex reI. McLeod v. C & L Corp., Inc., App., 280 S.C. 519, 313 S.E.2d 334, 34l. Sales of securities by control persons are subject to many of the requirements applicable to the sale of securities directly by the issuer.

Control person.

Refers to the pricing phenomenon by which shares that carry the power to control a corporation are more valuable per share than the shares that do not carry a power of control. The control premium is often computed not on a per share basis but on the aggregate increase in value of the "control block" over the going market or other price of shares which are not part of the "control block".

Control premium.

Controver Ik;}ntrowv;}r/.

In old English law, an inven tor or deviser of false news. A litigated question; adversary proceed ing in a court of law; a civil action or suit, either at law or in equity; a justiciable dispute. To be a "controver sy" under federal constitutional provision limiting exer cise of judicial power of United States to cases and controversies there must be a concrete case admitting of an immediate and definitive determination of legal rights of parties in an adversary proceeding upon facts alleged, and claims based merely upon assumed poten tial invasions of rights are not enough to warrant judi cial intervention. Southern Ry. Co. v. Brotherhood of Locomotive Firemen and Enginemen, D.C.Ga., 223 F.Supp. 296, 303. In the constitutional sense, it means more than disagreement and conflict; rather it means kind of controversy courts traditionally resolve. U.S. v. Nixon, U.S.Dist.Col., 418 U.S. 683, 94 S.Ct. 3090, 3102, 41 L.Ed.2d 1039. This term is important in that judicial power of the courts extends only to cases and "controver sies." See Actual controversy; Case; Cause of action;

Controversy.

330

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. See Excommunication.

Wilfully stubborn and diso bedient conduct, commonly punishable as contempt of court. See Contempt.

Contumacious conduct.

Contumacy Ikont(y);}m;}siy/.

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."

Contumax Ikont;}mreks/.

One accused of a crime who refuses to appear and answer to the charge. An outlaw.

Contumely Ikonty;}m;}liy/.

Rudeness compounded of haughtiness and contempt; scornful insolence; despite ful treatment; disdain, contemptuousness in act or speech; disgrace. 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.

Contuse.

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."

Contusion.

Contutor Ik;}ntyuwt;}r/. Conusance Ikony;}z;}ns/.

jurisdiction.

Ikony;}z;}nt/. Cognizant; acquainted with; having actual knowledge; as, if a party knowing of an agreement in which he has an interest makes no objec tion to it, he is said to be conusant.

Conusant

Conusee Ikony;}ziy I.

See Cognizee.

Conusor Ikony;}z;}r/.

See Cognizor.

Gradual recovery of health or physical strength after illness.

Convalescence. Convenable. Convene.

In Roman law, the marriage of slaves; a permitted cohabitation.

Contumace capiendo Ikont;}meysiy krepiyendow I.

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

See Cogni

zance.

To dispute; to deny; to oppose or contest; to take issue on.

Contubernium Ikont;}b�rniy;}m/.

In English law, cognizance or Conusance of pleas.

Conusance, claim of Ikleym ;}v kony;}z;}ns/.

Justiciable controversy. Controvert.

Lat. In the civil law, a co-tu

tor, or co-guardian.

In old English law, suitable; agreeable; convenient; fitting.

To call together; to cause to assemble; to convoke. In the civil law, to bring an action.

Convenience and necessity.

See Public convenience

and necessity.

Proper; just; suitable; fit; adapted; prop er; becoming appropriate.

Convenient.

Convenit Ik;}nviyn;}t/.

Lat. In civil and old English law, it is agreed; it was agreed.

Convent. The fraternity of an abbey or priory, as socie

tas is the number of fellows in a college.

A religious

331

CONVENTIONS

house, now regarded as a merely voluntary association, not importing civil death. An association or community of recluses devoted to a religious life under a superior. A body of monks, friars, or nuns, constituting one local community; now usually restricted to a convent of nuns. Sacred Heart Academy of Galveston v. Karsch, 173 Tenn. 618, 122 S.W.2d 416, 417. Ik:mvEmt:;>k:;>l/. A private assembly or meeting for the exercise of religion. The word was first an appellation of reproach to the religious assemblies 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 ap plied to the assembling of persons in places of worship licensed according to the requisitions of law.

Conventicle

Conventio Ik:;>nvensh(iy)ow/.

In Canon law, the act of summoning or calling together the parties by summon ing the defendant.

In Civil law, a compact, agreement, or convention. An agreement between two or more persons respecting a legal relation between them. 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 negotia tions 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. Conventio in unum Ik:;>nvensh(iy)ow in yUwn:;>m/.

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 pollicita tion or proposal emanating from the one, and followed by the consension or agreement of the other.

An agreement or compact; esp. interna tional agreement, e.g. Geneva Convention. An assembly or meeting of members or representatives of political, legislative, fraternal, etc. organizations.

Convention.

Constitutional convention. See Constitution. 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. Also the name of an old writ that lay for the breach of a covenant. Judicial convention.

See Judicial.

Legislative and political. 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 (i.e. constitutional convention). 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 ap proaching election.

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 pre liminary 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. An agreement between states relating to trade, finance, or other matters considered less important than those usually regulated by a treaty. See Compact; Treaty. Roman law. An agreement between parties; a pact. A convention was a mutual engagement between two per sons, possessing all the subjective requisites of a con tract, but which did not give rise to an action, nor receive the sanction of the law, as bearing an "obli gation," until the objective requisite of a solemn ceremo nial, (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 superim posed. The division of conventions into contracts and pacts was important in the Roman law. The former were such conventions as already, by the older civil law, founded an obligation and action; all the other conven tions were termed "pacts." These generally did not produce an actionable obligation. Actionability was subsequently given to several pacts, whereby they re ceived the same power and efficacy that contracts re ceived. Depending on, or arising from, the mu tual agreement of parties; as distinguished from legal, which means created by, or arising from, the act of the law.

Conventional.

As to conventional Estates; I nterest; Mortgage; Subro gation; and Trustee, see those titles. A lien is conventional where the lien, general or particular, is raised by the express agreement and stipulation of the parties, in circum stances where the law alone would not create a lien from the mere relation of the parties or the details of their transaction.

Conventional lien.

Conventional loan. Real estate loan (usually from bank

or savings and loan association) not involving govern ment participation by way of insurance (FHA) or guar antee (VA). Conventione Ik:;>nvenshiyowniy/.

The name of a writ for the breach of any covenant in writing, whether real or personal.

This name is sometimes given to com pacts or treaties with foreign countries as to the appre hension and extradition of fugitive offenders. See Extra

Conventions.

dition. Conventio privatorum non potest publico juri dero

Ik:;>nvensh(iy)ow prayv:;>tor:;>m non powt:;>st p;)bbkow juray diyr:;>geriy/. The agreement of private persons cannot derogate from public right, i.e., cannot

gare

CONVENTIO VINCIT LEGEM

332

prevent the application of general rules of law, or render valid any contravention of law.

Act of exchanging a convertible security for another security. See Convertible securities.

Conventio vincit legem Ik:mvEmsh(iy)ow vins�t liyj�m/.

Commercial instruments. An instrument is converted when: a drawee to whom it is delivered for acceptance refuses to return it on demand; or any person to whom it is delivered for payment refuses on demand either to pay or to return it; or it is paid on a forged indorsement. U.C.C. § 3-419(1).

The express agreement of parties overcomes [prevails against] the law. In ecclesiastical law, that which consists of regular clerks, professing some order or reli gion; or of dean and chapter; or other societies of spiritual men.

Conventual church.

Conventuals Ik�nvenchuw�lz/.

Religious men united in

a convent or religious house. Conventus Ik�nvent�s/.

Lat. A coming together; a convention 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. In the civil law, the term meant a gathering together of people; a crowd assembled for any purpose; also a convention, pact, or bargain.

Conventus juridicus Ik�nvent�s j�rid�k�s/.

In the Ro man law, a court of sessions held in the Roman prov inces, 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. One who is in the habit of being in a particular place is said to be conversant there. Ac quainted; familiar.

Conversant.

Conversantes Ikonv�rsrentiyz/.

In old English law, con versant or dwelling; commorant. Manner of living; behavior habits of life; conduct; as in the phrase "chaste life and conversation." Criminal conversation means seduction of another man's wife, considered as an actionable injury to the husband. See Criminal (Criminal conversation).

Conversation.

To engage in conversation; social interac tion. Reversed in order or relation. The transposition of the subject and predicate in a proposition, as: "Every thing is good in its place." Converse, "Nothing is good which is not in its place."

Converse.

A negative of a positive state ment of an essential element or elements of a cause of action as stated in a verdict-directing instruction. State v. Collins, Mo.App., 587 S.W.2d 303, 306.

Converse instruction.

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. Any unautho rized act which deprives an owner of his property per manently or for an indefinite time. Unauthorized and wrongful exercise of dominion and control over anoth er's personal property, to exclusion of or inconsistent with rights of owner. Catania v. Garage De Le Paix, Inc., Tex.Civ.App., 542 S.W.2d 239, 241. See also Embez

Conversion.

zlement; Equitable conversion; Fraudulent conversion; I n voluntary conversion.

Constructive conversion. An implied or virtual conver sion, 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. Direct conversion. The act of actually appropriating the property of another to his own beneficial use and enjoy ment, or to that of a third person, or destroying it, or altering its nature, or wrongfully assuming title in him self. Equitable conversion. 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, 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. It is sometimes necessary however for certain purposes of devolution and transfer to regard the property in its changed condi tion as though the change has not absolutely taken place. Conversion or convertibility clause. A provision in an

adjustable-rate mortgage that allows the borrower to change from an ARM to a fixed-rate loan at some point during the term. A provision in convertible securities specifying conversion rights. See Convertible securities. Conversion, custodia legis. Converting property in the

custody of the court. One who has a lien against prop erty and replevins the same to obtain possession and then sells the property to satisfy the lien before a judgment has entered in the replevin matter, commits conversion by this sale. Brunswick Corp. v. J & P, Inc., D.C.Ok!., 296 F.Supp. 544, 545. A neurosis in which there is gross loss or impairment of some somatic or physical function caused by emotional conflicts, such as hysteri cal blindness, hysterical paralysis, hysterical tremors, hysterical limping. Used by sufferer to protect himself from anxiety.

Conversion hysteria.

The transformation of an emo tion into physical manifestations. (E.g., an injured per son converts an emotional disturbance into physical symptoms.) Kilarjian v. Horvath, C.A.N.Y., 379 F.2d 547, 548.

Conversion reaction.

The securities into which con vertible securities may be converted. See Convertible

Conversion securities.

securities. Convert.

See Conversion.

CONVICTION

333 Convertible bond.

See Bond.

A bond or debenture or note which under certain conditions and at certain times may be converted into stock by the holder. See Convertible

Convertible debt.

securities.

A bond, debenture or preferred share which may be exchanged by the owner for com mon stock or another security, usually of the same company, in accordance with the terms of the issue. The ratio between the convertible and conversion securi ties is fixed at the time the convertible securities are issued, and is usually protected against dilution.

Convertible securities.

Forced conversion. Refers to a conversion of a convert ible security that follows a call for redemption at a time when the value of the conversion security into which it may be converted is greater than the amount that will be received if the holder permits the security to be redeemed. Normally, a holder of a convertible redeema ble security has a period of time after the call for redemption to determine whether or not to exercise the conversion privilege. Type of term insurance which may be changed to permanent (whole life) insur ance carrying loan values, built in values, etc.

Convertible term insurance.

To transfer or deliver to another. To pass or transmit the title to property from one to another. To transfer property or the title to property by deed, bill of sale, or instrument under seal. Used popularly in sense of "assign", "sale", or "transfer". See Conveyance.

Convey.

Conveyance Ik:mvey;ms/.

In its most common usage, transfer of title to land from one person, or class of persons, to another by deed. Term may also include assignment, lease, mortgage or encumbrance of land. Generally, every instrument in writing by which an estate or interest in the realty is created. Smalley v. Juneau Clinic Bldg. Corp., Alaska, 493 P.2d 1296, 1299. See also Alienation; Demise; Fraudulent conveyance; In voluntary conveyance.

Absolute or conditional conveyance. An absolute con veyance 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 or changed, as an ordinary deed of lands, in contradistinction to a mortgage, which is a conditional conveyance. Brown v. United States, C.C.A.Pa., 95 F.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 ben efit or estate is created or first arises; as distinguished from those whereby it may be enlarged, restrained, transferred, or extinguished. The term includes feoff ment, gift, grant, lease, exchange, and partition, and is opposed to derivative conveyances, such as release, sur render, 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. One whose business it is to prepare deeds, mortgages, examine titles to real estate, and perform other functions relating to the transfer of real property.

Conveyancer.

In England, one who holds a license to conveyance. Administration of Justice Act, 1985, Part II. Conveyancing. Act of performing the various functions

relating to the transfer of real property such as exami nation of land titles, preparation of deeds, mortgages, closing agreements, etc. In English law, certain counsel, not fewer than six in number, appointed by the lord chancellor, for the pur pose of assisting the court of chancery, or any judge thereof, with their opinion in matters of title and con veyancing.

Conveyancing counsel to the court of chancery.

Under common law rule, when a remainder was limited to heirs of grantor or testator, such heirs did not take a remainder; instead, the estate was considered a reversion in the grantor or testator, and hence, if heirs took at all, they would take by descent, not by purchase. This rule, known as rule of worthier title (Braswell v. Braswell, 195 Va. 971, 81 S.E.2d 560) has been abolished in many jurisdictions. See Worthier title doctrine.

Conveyor's heirs.

Convicia si irascaris tua divulgas; spreta exolescunt

Ik:mvish(iy)� say ayr�sker�s tyuw� d�v;}lg�s, spriyt� eksk�lesk�ntl. If you be moved to anger by insults, you publish them; if despised, they are forgotten. Convicium Ik�nvish(iy)�m/.

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. To find a person guilty of a criminal charge, either upon a criminal trial, a plea of guilty, or a plea of nolo contendere. The word was formerly used also in the sense of finding against the defendant in a civil case.

Convict, v.

One who has been adjudged guilty of a crime and is serving a sentence as a result of such conviction. A prisoner.

Convict, n.

Convicted.

See Conviction.

In a general sense, the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged. The final judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere, but does not include a final judgment

Conviction.

CONVICTION which has been expunged by pardon, reversed, set aside, or otherwise rendered nugatory. The final consummation of the prosecution including the judgment or sentence, or as is frequently the case, the judgment or sentence itself. Ex parte White, 75 Okl.Cr. 204, 130 P.2d 103, 104. The stage of a criminal proceeding where the issue of guilt is determined. Unit ed States v. Locke, 409 F.Supp. 600. 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.

Summary conviction. The conviction of a person (usual ly for a minor misdemeanor), as the result of his trial before a magistrate or court, without a jury. Such as is sufficient to establish the proposition in question, beyond hesitation, ambiguity, or reasonable doubt, in an unprejudiced mind. See Beyond

Convincing proof.

a reasonable doubt; Clear and convincing proof; Proof. Convivium I k:mviviy;}m I .

A tenure by which a tenant was bound to provide meat and drink for his lord at least once in the year.

In ecclesiastical law, the general assem bly of the clergy to consult upon ecclesiastical matters.

Convocation.

An escort for protection, either by land or sea. A naval force for the protection of merchant-ships and others, during the whole voyage, or such part of it as is known to require such protection. An association for a hostile object. In undertaking it, a nation spreads over the merchant vessel an immunity from search which belongs only to a national ship. By joining a convoy every individual ship puts off her pacific character, and undertakes for the discharge of duties which belong only to the military marine, and adds to the numerical, if not to the real strength of the convoy. The Atlanta, 16 U.S. (3 Wheat.) 409, 423, 4 L.Ed. 422.

Convoy.

A joint obligor; one bound jointly with another or others in a bond or obligation.

Co-obligor.

Cool state of blood.

In the law of homicide, this term does not mean that the defendant must be calm or tranquil or display the absence of emotion, but rather that the defendant's anger or emotion must not have been such as to disturb defendant's faculties and reason. State v. Russell Council Judge, 308 N.C. 658, 303 S.E.2d 817, 820. See also Cold blood; Cooling time; Premedita tion.

Doctrine which holds that state is deprived of all regulatory power as to subjects which "are in their nature national, or admit only of one uniform system or plan of regulation." Cooley v. Board of Wardens of Port of Philadelphia, 53 U.S. (12 How.) 299, 13 L.Ed. 996. See also Preemption.

Cooley doctrine.

Cooling off period. A period of time in which no action

of a particular sort may be taken by either side in a dispute. For example, a period of a month after a union or a company files a grievance against the other. Dur-

334

ing this period., the union may not strike and the compa ny may not lock-out the employees. A period of time in which a buyer may cancel a purchase; e.g. many states by statute require a three-day cancellation period for door-to-door sales or home improvement contracts. An automatic delay in some states, in addition to ordinary court delays, between the filing of divorce papers and the divorce hearing. Time to recover "cool blood" after severe excitement or provocation. Time for the mind to be come so calm and sedate as that it is supposed to contemplate, comprehend, and coolly act with reference to the consequences likely to ensue.

Cooling time.

To act jointly or concurrently toward a common end.

Cooperate.

Action of co-operating or acting jointly with another or other. Association of persons for com mon benefit. In patent law, unity of action to a com mon end or a common result, not merely joint or simul taneous action.

Cooperation.

That provision in insurance poli cies which requires the insured to cooperate with the insurer in defe,nse of a claim. "Co-operation" by insured within a co-operation clause means that there shall be fair and frank. disclosure of information reasonably de manded by insurer to enable it to determine whether there is genuine defense. Prudence Mut. Cas. Co. v. Dunn, 30 Ill.App.2d 469, 175 N.E.2d 286.

Cooperation clause.

Cooperative Ikowop(;})r;}t;}v I.

A corporation or associa tion organized for purpose of rendering economic servic es, without ga.in to itself, to shareholders or members who own and control it. United Grocers, Limited v. U. S., D.C.Cal., 186 F.Supp. 724, 733. Type of business that is owned by its member-customers.

Cooperatives vary widely in character and in the manner in which they function. They have been classi fied along functional lines as follows: (a) consumer coop eratives (inclu.ding consumer stores, housing coopera tives, utility cooperatives, and health cooperatives); (b) marketing cooperatives; (c) business purchasing cooper atives; (d) workers' productive cooperatives; (e) finan cial cooperatives (such as the credit union, mutual sav ings bank, savings and loan association, and production credit association); (f) insurance cooperatives; (g) labor unions; (h) trade associations; and (i) self-help coopera tives. The required form for a cooperative may differ in different states; e.g. unincorporated association, cooper ative association, nonprofit corporation.

See also Consumer's cooperative; Cooperative corpora tion.

Cooperative apartment. See that title. Farmer's cooperative. Major function of such coopera tive is to market the combined crops, produce or live stock of its farmer-owners. The cooperative attempts to sell crops and livestock at the optimum price. For example, it might store grain until the price of such rises.

COPPER AND SCALES

335

Dwelling units in a multi dwelling complex in which each owner has an interest in the entire complex and a lease of his own apartment, though he does not own his apartment as in the case of a condominium. This is organized in corporate form and is generally treated as a corporation. However, it is somewhat of a legal hybrid in that the stockholder possesses both stock and a lease and the relationship between the tenant shareholder and the owner-coopera tive is largely determined by reading together the certif icate of incorporation, stock offering prospectus, stock subscription agreement, and proprietary lease. Sanders v. Tropicana, 31 N.C.App. 276, 229 S.E.2d 304, 308.

Cooperative apartment.

Cooperative association.

See Cooperative.

A "cooperative corporation", while having a corporate existence, is primarily an organization for purpose of providing services and prof its to its members and not for corporate profit. Linnton Plywood Ass'n v. State Tax Commission, 241 Or. 1, 403 P.2d 708, 709. See Cooperative.

Cooperative corporation.

The distribution of power be tween national and local or state governments while each recognizes the powers of the other.

Cooperative federalism.

Cooperative housing.

See Cooperative apartment.

Cooperative negligence.

See Negligence (Contributory

negligence). Coopertio Ikow;}p;)rsh(iy)ow/.

In old English law, the head of branches of a tree cut down; though coopertio arborum is rather the bark of timber trees felled, and the chumps and broken wood.

Coopertus Ikow;}p;)rt;}s/.

Covert; covered.

Co-optation Ikowopteysh;}n/.

A concurring choice; the election, by the members of a close corporation, of a person to fill a vacancy.

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. lEolian-Skinner Organ Co. v. Shepard Broadcasting Service, C.C.A.Mass., 81 F.2d 392, 395. As to courts of "coordinate jurisdiction," see this term, infra, and Jurisdiction.

Coordinate.

That which is possessed by courts of equal rank, degree, or authority, equally com petent to deal with the matter in question, whether belonging to the same or different systems; concurrent jurisdiction. See Jurisdiction.

Coordinate jurisdiction.

interest and of title. Winters Nat. Bank & Trust Co. v. Riffe, Ohio Prob., 194 N.E.2d 921, 924. A species of estate, or tenancy, which exists where lands of inheri tance descend from the ancestor to two or more persons. It arose 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 representatives; in this case they all inherit, and these coheirs, are then called "coparceners," or, for brevity, "parceners" only. 2 Bl.Comm. 187. By particu lar custom, as where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, etc. 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. 2 Bl.Comm. 188. To day, this type of tenancy is obsolete. Coparceners I kowparsiyn::lrz I .

Persons to whom an es tate of inheritance descends jointly, and by whom it is held as an entire estate. 2 Bl.Comm. 187.

Coparticeps Ikowpart;}seps/.

In old English law, a co

parcener. Coparties. Parties having like status, such as, co-defen

dants. Murray v. Haverford Hospital Corp., D.C.Pa., 278 F.Supp. 5, 7. "Co-party," within rule (F.R.C.P. 13) providing that a pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of the original action, does not mean merely equal party, such as one of several original defendants, but applies to a third-party defendant brought into the case by an original defen dant on a theory of liability over. Fogel v. United Gas Imp. Co., D.C.Pa., 32 F.R.D. 202, 204. One who is a partner with one or more other persons; a member of a partnership.

Copartner.

Copartnership.

A partnership.

Federal act prohibiting wage kickbacks or rebates being imposed on employees engaged in con struction or repair of public buildings or works. See 18 U.S.C.A. § 874.

Copeland Act.

Copeman, or copesman. Copesmate Ik6wpsmeyt/.

A chapman (q. v.). A merchant; a partner in

merchandise. Copia I k6piY::l I .

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.

A method of land description. It uses a measurement based on an intersection of a de fined north-south axis and a defined east-west axis.

Copia libelli deliberanda Ik6piY::l l::lbelay d;}lib::lrrend::l/.

Two or more persons who own property, real or personal. Tenants in common of property. Broad term which may describe joint tenants as well.

In old English law, 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.

Coordinate system.

Co-owner.

Ikowparsiyn::lriy I. Such estate arises where several take by descent from same ancestor as one heir, all coparceners constituting but one heir and having but one estate and being connected by unity of

Coparcenary

Coppa Ik6p::l/.

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.

COPRINCIPAL

336

One of two or more participants in crime who actually perpetrate crime or are present aiding and abetting person who commits crime. One of two or more persons who has appointed agents whom they have right to control.

Coprincipal.

The corporal consummation of mar riage. Copula (in logic), the link between subject and predicate contained in the verb.

Copula /k6py;}I;}/.

Copulatio verborum indicat acceptationem in eodem

/kopy;}h�ysh(iy)ow v;}rb6r;}m ind;}k;}t reks;}p teyshiy6wn;}m in iy6wd;}m sens(y)uw /. Coupling of words together shows that they are to be understood in the same sense. sensu

One which is placed between two or more others to join them together.

Copulative term.

A transcript, double, imitation, or re production of an original writing, painting, instrument, or the like.

Copy; Copying.

Under best evidence rule, a copy may not be intro duced until original is accounted for. Certified copies are admissible under statutes in most jurisdictions. Similarly, photographic copies and prints from photo graphic films are admissible by statute. Copies of all pleadings, motions and other papers must be served on all parties to action under Fed.R. Civil P. 5(b). Admissions concerning the genuineness of copies of documents are governed by Fed.R. Civil P. 36(a). A duplicate is admissible in evidence to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Fed.Evid.R. 1003. In copyright law, "copying" of a literary work consists in exact or substantial reproduction of the original, using original as a model as distinguished from an independent production of same thing, and a "copy" is that which comes so near to original as to give every person seeing it the idea created by original and must be such that ordinary observation would cause it to be recognized as having been taken from the work of anoth er. Turner v. Century House Pub. Co., 56 Misc.2d 1071, 290 N.Y.S.2d 637, 642.

See also Authentication; copy; Duplicate.

Authentic copy;

Conformed

Examined copies are those which have been compared with the original or with an official record thereof. In England a species of estate at will, or customary estate, the only visible title to which consist ed of the copies of the court rolls, which were made out by the steward of the manor, on a tenant's being admit ted to any parcel of land, or tenement belonging to the manor. It was an estate at the will of the lord, yet such a will as was agreeable to the custom of the manor, which customs were preserved and evidenced by the rolls of the several courts baron, in which they were entered. 2 Bl.Comm. 95. In a larger sense, copyhold was said to import every customary tenure (that is, every tenure pending on the particular custom of a

Copyhold.

manor), as opposed to free socage, or freehold, which later (since the abolition of knight-service) was con sidered as the general or common-law tenure of the country. Under the English Law of Property Act of 1922 copyholds were enfranchised and became freehold (or in certain cases leasehold).

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 en franchisement of copyhold lands. 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 de mesnes. Copyright. The right of literary property as recognized

and sanctioned by positive law. An intangible, incorpo real right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a specified period, with the sole and exclu sive privilege of multiplying copies of the same and publishing and selling them. Copyright protection subsists in original works of au thorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, ei ther directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; and (7) sound recordings. In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, con cept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Copyright Act, 17 U.S.C.A. § 102. Prior to the 1976 Copyright Act there was a distinc tion between common law and statutory protection whereby, generally, common law copyright protected works prior to publication and the federal copyright laws protected works following publication. The 1976 Act attempted to abolish all significant aspects of com mon law copyright and create a unified protection sys tem by beginning statutory protection as soon as the work was reduced to a concrete form. 17 U.S.C.A. § 102(a). Under the 1976 Act an author is protected as soon as a work is recorded in some concrete way, since the Act protects all expressions upon fixation in a tangi ble medium. 17 U.S.C.A. § 102(a). Protection under the 1976 Act is secure until fifty years after the death of the author. 17 U.S.C.A. § 302(a).

CORNER

337 In addition to injunctive, impoundment, and civil damages relief, criminal penalties are also provided for copyright infringement. 17 V.S.C.A. § 502 et seq.; 18 V.S.C.A. § 2319.

See also Adaptation right; Collective work; Common-law copyright; Compilation; Compulsory license; Created; De rivative work; Descriptive mark; Display; Fair use doc trine; First sale rule; Infringement; Limited publication; Literary property; Literary work; Work made for hire. A necessary notice in the form re quired by law which is placed in each published copy of the work copyrighted. Copyright Act, 17 V.S.C.A. § 40l.

As term is used with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right. Copyright Act, 17 U.S.C.A. § 10l.

Coraagium, or coraage Ikor(;})eyjiy;}m/.

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.

Coram Ikor;}m/.

Lat.

Before; in presence of. Applied

to persons only. Coram domino rege Ikor;}m dom;}now riyjiy I.

Before our lord the king. Coram domino rege ubicumque tunc fuerit Anglire, before our lord the king wherever he shall then be in England.

Coram ipso rege Ikor;}m ipsow riyjiyI.

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 Ikor;}m nowb;}sl.

In our presence; before us. "Writ of error coram nobis" is procedural tool whose purpose is to correct errors of fact only, and its function is to bring before the court rendering the judgment matters of fact which, if known at time judg ment was rendered, would have prevented its rendition. Com. v. Mangini, 478 Pa. 147, 386 A.2d 482, 490. Its function is to bring attention of court to, and obtain relief from, errors of fact, such as a valid defense exist ing in facts of case, but which, without negligence on defendant's part, was not made, either through duress or fraud or excusable mistake, where facts did not appear on face of record, and were such as, if known in season, would have prevented rendition of the judgment ques tioned. People v. Tuthill, 32 Ca1.2d 819, 198 P.2d 505, 506. The essence of the common law remedy of coram nobis is that it is addressed to the very court which renders the judgment in which injustice is alleged to have been done, in contrast to appeals or review directed to another court; the words "coram nobis," meaning "our court," as compared to the common-law writ of "coram vobis," meaning "your court," clearly point this up. The writs of coram nobis and coram vobis have been abolished by Fed.R.Civil P. 60(b) and superseded by relief as provided by that rule. See also Coram vobis; Error coram nobis; Error coram vobis; Writ of error.

Coram non judice Ikor;}m non juwd;}siy/.

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.

Coram paribus Ikor;}m prer;}b;}sl.

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 Ikor;}m sekt;}tor;}b;}sl.

Before the

suitors. Coram vobis Ikor;}m vowb;}sl.

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. See Coram nobis; Writ of error.

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.

Cord.

For purposes of bankruptcy court jurisdiction, the term "core proceedings" encompasses those proceedings that arise under the Bankruptcy Code (11 V.S.C.A.), including, but not limited to, those pro ceedings which are specifically defined in 28 V.S.C.A. § 157(b)(2). In re American Energy, Inc., Bkrtcy.N.D., 50 B.R. 175, 178. Determining whether a proceeding is a core or non-core matter requires that a court analyze various causes of action raised by the parties and make findings that they sufficiently affect the debtor-creditor relationship so as to justify the issuance of final judg ment. In re Hinkley, Bkrtcy.Tex., 58 B.R. 339.

Core proceeding.

A co-defendant. A person summoned to answer a bill, petition, or libel, together with another respondent. Used for example 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.

Co-respondent.

Ordinarily term "co-respondent" denotes one joined as party defendant in equity suit. Blankenship v. Blanken ship, 239 Md. 498, 212 A.2d 294, 299. Corium forisfacere Ikoriy;}m fOr;}sfeys;}riy I.

To forfeit one's skin, applied to a person condemned to be whipped; anciently the punishment of a servant. Cori um perdere, the same. Corium redimere, to compound for a whipping.

Cornage Ikorn;}j/.

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. A combination among the dealers in a specific commodity, or outside investors, for the purpose of buy ing 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.

Corner.

CORNER

338

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 by the payment of differences, or, where the buyers insist, by actual delivery.

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. Obliterated corner. One where no visible evidence re mains of the work of the original surveyor in establish ing it. Surveying. An angle made by two boundary lines; the common end of two boundary lines, which run at an angle with each other. Cornering the market.

See Corner.

A commissioned officer of cavalry, abolished in England in 1871, and not existing in the United States army.

Cornet.

A species of protective tariff formerly in existence in England, imposing import-duties on various kinds of grain. The corn laws were abolished in 1846.

Corn laws.

Corn Products case. Where corn products manufactur

er, as an integral part of its manufacturing business and to protect itself against rises in price of raw corn, bought corn futures, accepting delivery in some cases and in other cases reselling futures upon spot purchase of corn, profits on resale of futures were taxable as ordinary income, rather than as capital gains, even though the transactions did not constitute true hedging in that there was no protection against fall in price. Corn Products Refining Co. v. Commission of Internal Reve nue, 350 U.S. 46, 76 S.Ct. 20, 100 L.Ed. 29. 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."

Corn whisky.

Corody Ikor;}diy/.

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 mainte nance 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. 1 Bl.Comm. 283.

In logic, a collateral or secondary conse quence, deduction, or inference.

Corollary.

Corona Ik;}rown;}/.

The crown. Placita coronre; pleas of the crown; criminal actions or proceedings, in which the crown was the prosecutor.

Corona mala Ik;}rown;} mreb/.

In old English law, the clergy who abuse their character were so called.

Coronare Ikor;}neriy/.

In old English law, to give the tonsure, which was done on the crown, or in the form of a crown; to make a man a priest.

Coronare filium Ikor;}neriy filiy;}m/.

In old English law, 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. 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.

Coronation oath.

Coronator Ikor;}neyt;}r/.

A coroner.

Coronatore eligendo Ikor;}n;}toriy el;}jendow I.

In Eng lish law, the name of a writ issued to the sheriff, commanding him to proceed to the election of a coroner.

Coronatore exonerando Ikor;}n;}toriy ekzon;}rrendowI.

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 Ikor;}n;}r I.

Public official, of English origin, charged with duty to make inquiry into the causes and circumstances of any death which occurs through vio lence or suddenly and with marks of suspicion; i.e. unnatural death. The functions and duties of coroners have been diminished having been replaced by medical examiners. See Coroner's inquest; Medical examiner.

In England, a tribunal of record, where a coroner holds his inquiries. In some cases a jury must be summoned for an inquest. See Coroners' Act, 1980, and Coroners' Juries Act, 1983.

Coroner's court.

An inquisition or examination into the causes and circumstances of any death happening by violence or under suspicious conditions, held by the coroner with the assistance of a jury. See also I nquest.

Coroner's inquest.

Exists when a corporation is the sole general partner in a limited partnership with numerous public investors as limited partners.

Corpnership.

Corporale sacramentum Ikorp;}reyliy srekr;}ment;}m/.

In old English law, a corporal oath. Physical inability to perform com pletely the act of sexual intercourse; not necessarily congenital, and not invariably a permanent and incura ble impotence.

Corporal imbecility.

Corporalis injuria non recipit restimationem de futu ro Ikorp;}reyl;}s ;}njuriy;} non res;}p;}t est;}meyshiyown;}m

diy fyuwtyurow I.

A personal injury does not receive

CORPORATE NAME

339

satisfaction from a future course of proceeding [is not left for its satisfaction to a future course of proceeding].

for money or its equivalent received by the corporation, sometimes secured, and sometimes not.

An oath, the external solemnity of which consists in laying one's hand upon the Holy Bible while the oath is administered to him. More generally, a solemn oath.

Corporate charter. Document issued by state agency or

Corporal oath.

Physical punishment as distin guished from pecuniary punishment or a fine; any kind of punishment of or inflicted on the body. The term may or may not include imprisonment, according to the context. The Supreme Court has upheld the use of reasonable corporal punishment in schools, Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711; though, a number of states, by statute, prohibit paddling of students. Whipping of prisoners has been found to be a form of "cruel and unusual punishment" as prohibited by the 8th Amendment. Jackson v. Bishop, C.A.Ark., 404 F.2d 571. See also Punishment (Cruel and unusual punishment ).

Corporal punishment.

Bodily touch; actual physical contact; manual apprehension.

Corporal touch.

Belonging to a corporation; as a corporate Incorporated; as a corporate body.

Corporate.

name.

Corporate acquisition. The takeover of one corporation

by another if both parties retain their legal existence after the transaction. An acquisition can be effected via a stock purchase or through a tax-free exchange of stock. See also Leveraged buyout; Reorganization; Take over bid; Merger.

A natural person or a corporation who is authorized to act for a corporation as for example in the function of accepting service of process. Broadly, term includes all employees and officers of corporation who have power to bind the corporation.

Corporate agent.

Corporate alter ego, doctrine of. Means that courts, in

ignoring form 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 perpe trated, to redress a wrong which might otherwise go without redress, or to do justice which might otherwise fail. See Piercing the corporate veil. 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 li quors, etc.

Corporate authorities.

Term is equivalent to "body corpo rate"; i.e. a corporation.

Corporate body.

Debt securities issued by corpora tions, typically having a maturity of ten years or longer. A written promise by a corporation 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

Corporate bonds.

authority (commonly Secretary of State) granting corpo ration legal existence and right to function (i.e., conduct business) as a corporation; or, may mean document filed with Secretary of State on incorporation of a business; e.g. , articles of incorporation. See also Charter; Corpo rate franchise.

Corporate status in the state of incorporation, though a foreign corporation is not a citizen for purposes of the Privileges and Immunities Clause (U.S.Const., Art. IV, § 2). Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 10 L.Ed. 274.

Corporate citizenship.

Any criminal offense committed by and hence chargeable to a corporation because of activi ties of its officers or employees (e.g. , price fixing, toxic waste dumping). Often referred to as "white-collar" crime.

Corporate crime.

The domicile of a corporation is the state of its incorporation.

Corporate domicile.

The distinct status of a corporation which sets its existence apart from the status of its shareholders; its capacity to have a name of its own, to sue and be sued in its own name as well as the right to buy, sell, lease and mortgage its property in its own name.

Corporate entity.

Term used in connection with taxa tion of a corporation engaged in interstate commerce by a state and meaning the proportion of fair cash value of all the shares constituting the capital stock on a given date as the value of the assets, both real and personal, employed within the state bears to the total assets of the corporation on that date. Alpha Portland Cement Co. v. Mass., 268 U.S. 203, 208, 45 S.Ct. 477, 69 L.Ed. 916.

Corporate excess.

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 aggre gate corporation, and their successors, to exist and do business as a corporation and to exercise the rights and powers incidental to that form of organization or neces sarily implied in the grant. See also Corporate charter. Corporate liability.

See Piercing the corporate veil.

Corporate liquidation.

See Liquidation.

Device for financing corpo rate activities which requires an indenture and an inde pendent trustee for protection of holders of bonds and debentures. The trust holds security consisting of prop erty in event of default.

Corporate mortgage trust.

When a corporation is formed, state statutes require that such be given a name and such name is kept on record with the proper state authority (e.g. Secretary of State's office). Only by and under such name may the corporation sue or be sued and do all legal acts.

Corporate name.

CORPORATE OFFICERS

340

Those persons who fill the offices which are provided for in the corporate charter such as president, treasurer, etc., though in a broader sense the term includes vice presidents, general manager and oth er officials of the corporation.

poration; Non-profit corporation; Non-stock corporation; Parent company or corporation; Person; Public corpora tions; Registered corporation; Thin corporation.

This doctrine pre cludes corporate fiduciaries from diverting to themselves business opportunities in which the corporation has an expectancy, property interest or right, or which in fair ness should otherwise belong to corporation. Klinicki v. Lundgren, 298 Or. 662, 695 P.2d 906, 910.

According to the accepted definitions and rules, corpo rations are classified as follows:

Corporate officers.

Corporate opportunity doctrine.

In reference to municipal corpora tions, and especially to their powers of taxation, a "cor porate purpose" is one which shall promote the general prosperity and the welfare of the municipality; or a purpose necessary or proper to carry into effect the object of the creation of the corporate body or one which is germane to the general scope of the objects for which the corporation was created or has a legitimate connec tion with those objects and a manifest relation thereto. State statutes commonly require that the articles of incorporation of business corporations state the purpose of the corporation.

Corporate purpose.

Corporate raider.

See Raider.

Corporate reorganization.

See Reorganization.

Term embraces all equity securities issued by a corporation, but not bonds and debentures because these represent debt rather than stock (equity). See Stock.

Corporate stock.

Those corporations which are em powered by their charter to act as trustee, such as banks and trust companies.

Corporate trustees.

An artificial person or legal entity created by or under the authority of the laws of a state. An association of persons created by statute as a legal entity. The law treats the corporation itself as a person which can sue and be sued. The corporation is distinct from the individuals who comprise it (shareholders). The corporation survives the death of its investors, as the shares can usually be transferred. Such entity subsists 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 capaci ty 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 associa tion, within the scope of the powers and authorities conferred upon such bodies by law. Dartmouth College v. Woodward, 17 U.S. (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.

Corporation.

See also Affiliate company; Brother-sister corporation; Charitable corporation; Charitable organizations; Clearing corporation; Collapsible corporation; Cooperative corpora tion; Corporation (S Corporation); Domestic corporation; Dormant corporation; Foreign corporation; Municipal cor-

Classification

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, gener ally within a particular territory or subdivision of the state, and usually invested, for that purpose, with subor dinate and local powers of legislation; such as a county, city, town, or school district. These are also sometimes called "political corporations." See M unicipal corpora tion.

Private corporations are those founded by and com posed of private individuals, for private purposes, as distinguished from governmental purposes, and having no political or governmental franchises or duties. The true distinction between public and private corpo rations is that the former are organized for governmen tal 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," it will be apparent that this is a misnomer. Again the fact that the business or opera tions 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 corpora tion is "private," as much so as if the franchises were vested in a single person. Dartmouth College v. Wood ward, 17 U.S. (4 Wheat.) 562, 4 L.Ed. 629. 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 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. While the above are strict distinctions between "pub lic" and "private" corporations, in common usage the term "public" corporation is frequently used to distin quish a business corporation whose shares are traded to and among the general public as opposed to a "private" (or "close" corporation) whose shares are not so traded.

Ecclesiastical and lay. In the English law, all corpora tions private are divided into ecclesiastical and lay, the

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former being such corporations as are composed exclu sively 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. Corpora tions formed for the purpose of maintaining or propagat ing religion or of supporting public religious services, according to the rights of particular denominations, and incidentally owning and administering real and person al property for religious uses, are called "religious corpo rations," as distinguished from business corporations; but they are "lay" corporations, and not "ecclesiastical" in the sense of the English law.

Aggregate and sole. A corporation sole is one consisting of one person only, and his successors in some particular station, who are incorporated by law 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. A corporation aggregate is one composed of a number of individuals vested with corporate powers; and a "cor poration," 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. See also Domestic corporation. 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. Other Compound and Descriptive Terms

Acquired corporation. The corporation which disap pears as a result of a merger or acquisition. Acquiring corporation. quisition.

The offeror in a merger or ac

Aggressor corporation. A corporation that attempts to obtain control of a publicly held corporation, either by a direct cash tender or public exchange offer to sharehold ers, or by way of merger, which requires the agreement or assent of the target's management. See Takeover bid. Business corporation. One formed for the purpose of transacting business in the widest sense of that term, including not only trade and commerce, but manufactur ing, mining, banking, insurance, transportation, and practically every form of commercial or industrial activ ity 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 gener al designation of "corporations not for profit."

Brother-sister corporation.

See that title.

Close corporation. A corporation whose shares, or at least voting shares, are held by a single shareholder or closely-knit group of shareholders. Generally, there are no public investors and its shareholders are active in the conduct of the business. 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. A corporation, the stock ownership of which is not widely dispersed. Instead, a few sharehold ers are in control of corporate policy and are in a position to benefit personally from such policy. Closely held corporation.

See Close corporation, above.

Collapsible corporation. A corporation formed for one specific venture such as a motion picture, or construc tion of a building, and then collapsed, allowing tax advantages to the shareholders. I.R.C. § 341. C corporation. A regular corporation governed by Sub chapter C of the Internal Revenue Code. Distinguished from S corporations, which fall under SUbchapter S of the Code. See also S corporation, below. Controlled corporation. A corporation where the majori ty of stock outstanding is held by one individual or one firm. Where there is complete domination and control of a c.orporation so that it has no independent identity, a court may disregard the corporate form and extend liability for corporate obligations beyond the confines of a corporation's separate entity whenever it is necessary to prevent fraud or achieve equity. Glenn v. Wagner, 67 N.C.App. 563, 313 S.E.2d 832, 839. Corporation by estoppel. A corporation by estoppel comes about when parties, by their agreements or con duct, estop themselves from denying the existence of the corporation. Harris v. Stephens Wholesale Bldg. Supply Co., Inc., 54 Ala.App. 405, 309 So.2d 1 15, 1 17. It is a doctrine which prevents a third person from holding an officer, director, or shareholder of a nonexistent corpora tion personally liable on an obligation entered into in the name of the nonexistent corporation. The theory is that the third person relied on the existence as a corpo ration and is now "estopped" from denying that the corporation existed. 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 corpora tion, but without actual lawful authority to do so. Its elements are a law or charter authorizing such a corpo ration, an attempt in good faith to comply with law authorizing its incorporation, and unintentional omis sion of essential requirements of the law or charter, and exercise in good faith of corporate functions under the

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law or charter. A corporation which has been defective ly formed but which is not subject to collateral attack.

Corporation de jure. That which exists by reason of full compliance by incorporators with requirements of an existing law permitting organization of such corpora tion. Corporation sole. Unusual type of corporation consist ing of only one person whose successor becomes the corporation on his death or resignation; limited in the main today to bishops and heads of dioceses. See also Aggregate and sole, above. Eleemosynary corporation. functions and purposes.

Corporation with charitable

Joint venture corporation. A corporation which has joined with other individuals or corporations within the corporate framework in some specific undertaking com monly found in oil, chemical, electronic and atomic fields. Migratory corporation. A corporation, organized under laws of another state than that of incorporators' resi dence 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 Okl. 120, 141 P.2d 571, 573. Moneyed corporations are, properly speaking, those deal ing in money or in the business of receiving deposits, loaning money, and exchange; 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. Municipal corporations.

See that title.

Non-stock corporation. Type of corporation where own ership is not recognized by stock; e.g. municipal corpora tion. Not-for-profit corporation. A corporation formed for some charitable or benevolent purpose and not for profit making and generally organized under special statutes for this purpose. Such corporations are afforded special tax treatment. See also Non-profit corporation. Professional corporation. In most states such may be organized by those rendering personal services to public of a type which requires a license or other legal authori zation and which prior to such statutory authorization could not be performed by a corporation. Includes, but is not limited to, public accountants, certified public accountants, chiropractors, osteopaths, physicians, sur geons, dentists, podiatrists, chiropodists, architects, vet erinarians, optometrists, and attorneys at law. Tax benefits are one of several reasons for professional incor poration. Incorporation does not alter professional re sponsibility or privilege nor does it insulate principal from malpractice liability. 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 public transportation, 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. See also Quasi public corporation, below.

Quasi corporation. 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 en forced, and privileges, which may be maintained, by suits at law. "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 corpo rate character, but which has not been created a corpo ration by any statute, general or special. 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. See Quasi public corporation, below. Quasi public corporation. This term is sometimes ap plied to corporations which are not strictly public, in the sense of being organized for governmental 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 com panies, and irrigation companies. More commonly and more correctly styled "public-service corporations." 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. The term is also applied to corporations of that class sometimes called "quasi municipal corporations," such as school districts, irrigation districts, township, etc.

S corporation. A small business corporation with a statutorily limited number of shareholders, which, un der certain conditions, has elected to have its taxable income taxed to its shareholders at regular income tax rates. I.R.C. § 1361 et seq. Its major significance is the fact that S corporation status usually avoids the corpo rate income tax, and corporate losses can be claimed by the shareholders. This election is for federal tax pur poses only; in terms of legal characteristics under state law, the "s" status corporation is no different than any other regular corporation.

CORPUS

343 Shell corporation. A corporate frame, containing few, if any, assets, kept alive by required filings, generally for future use. 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. Subchapter C corporation. A regular corporation sub ject to the provisions of Subchapter C (§§ 301-386) of the Internal Revenue Code. Distinguished from an S corpo ration, which is governed by SUbchapter S of the Code. Target corporation. Corporation attempted to be taken over in a tender offer or other type of takeover bid. A corporation viewed as having a good potential for take over by another corporation or individual. Trading corporations. A commercial corporation en gaged 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 corpora tions which are not trading companies. Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 669, 4 L.Ed. 629. 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. 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. 4 Bl.Comm. 58. This statute is now repealed.

Corporation Act.

Formerly, certain courts in Virgi nia 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."

Corporation courts.

A member of a corporation aggregate. Seaborn v. Wingfield, 56 Nev. 260, 48 P.2d 881, 883. See

Corporator.

I ncorporator. Corporeal Ik;)rporiy;)lI.

A term descriptive of such things as have an objective, material existence; percep tible by the senses of sight and touch; possessing a real body. Opposed to incorporeal and spiritual. There is a distinction between "corporeal" and "corporal." The former term means "possessing a body," that is, tangi ble, 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," "corpo ral touch," "corporal oath," etc.

Corporeal hereditaments Ik;)rpOriy;)1 h;)red;)t;)m;)nts/.

See Hereditaments. 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 contemplation. Thus a house is corporeal, but the annual rent payable for its occupation is incorpore al. 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.

Corporeal property.

In Roman law, the distinction between things corpore al 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 defini tion of the word includes merely that which can be touched and seen. Corpore et animo Ikorp;)riy et ren;)mow I.

Lat. By the body and by the mind; by the physical act and by the mental intent. In internation al law, ambassadors and diplomatic persons at any court or capital.

Corps diplomatique Ikor dipl;)matiyk/.

Corpse Ikorps/.

The dead body of a human being.

Corpus Ikorp;)s/ .

Lat. Body; an aggregate or mass (of men, laws, or articles); physical substance, as distin guished from intellectual conception; the principal sum or capital, as distinguished from interest or income. The main body or principal of a trust.

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. 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 physi cal ability to exercise his power over it whenever he pleases. The word occurs frequently in this sense in the civil law. As proof, it consists of showing that there exists the object of the crime (dead body in homicide case), and that such resulted from criminal act of some person. In some jurisdictions, it cannot be proved by confession of defendant in the first instance but only after extrinsic evidence (of the elements) has been offered. Downey v. People, 121 Colo. 307, 215 P.2d 892. In other states, confessional evidence is admissible in the first instance. See Corpus delicti, below.

Corpus comitatus Ikorp;)s kom;)t€�yt;)s/. The body of a county. The whole county, as distinguished from a part of it, or any particular place in it. Corpus corporatum Ikorp;)s korp;)reyt;)m/. A corpora tion; a corporate body, other than municipal. Corpus cum causa Ikorp;)s k;}m koz;)I . (The body with the cause.) An English writ which issued out of chan-

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cery, to remove both the body and the record, touching the cause of any man lying in execution upon a judg ment for debt, into the king's bench, there to remain until he satisfied the judgment.

Corpus delicti Ikorp;}s d;}liktay I. 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 deriva tive sense, the objective proof or substantial fact that a crime has been committed. The "corpus delicti" of a crime is the body, foundation or substance of the crime, which ordinarily includes two elements: the act and the criminal agency of the act. State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051, 1055. Corpus pro corpore Ikorp;}s prow korp;}riyI. In old records, body for body. A phrase expressing the liability of manucaptors. Corpus humanum non recipit restimationem Ikorp;}s

hy;}meyn;}m non res;}p;}t est;}meyshiyown;}m/. man body does not admit of valuation.

The hu

Corpus juris Ikorp;}s jur;}s/.

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 encyclopredic- state ment of the principles of American law; e.g. Corpus Juris Secundum.

Corpus juris canonici Ikorp;}s jur;}s k;}non;}sayI. 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 Ikorp;}s jur;}s siv;}l;}s/ . The body of the civil law. The system of Roman jurisprudence com piled 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. 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.

Correct attest.

Insurance policy issued after investi gation of risk to correct misstatements in policy first issued.

Corrected policy.

Discipline, treatment and rehabilitation of offenders through confinement, parole, probation, coun seling, etc. See also Correctional system.

Correction.

A generic term describing prisons, jails, reformatories and other places of correc tion and detention.

Correctional institutions.

Network of governmental agen cies concerned with prisons, jails, houses of correction

Correctional system.

and reformatories; may also refer to pardon and parole systems. A prison for the reformation of petty or juvenile offenders.

Correction, house of.

In old English law, a clerk belonging to the staple, to write and record the bargains of merchants there made.

Corrector of the staple.

Corregidor Ikoreyhidor/k;}reg;}dor/.

In Spanish law, a magistrate who took cognizance of various misdemean ors, and of civil matters.

Correi Ikowriyay I.

Lat. In the civil law, co-stipulators;

joint stipulators. Correi credendi Ikowriyay kr;}denday I.

In the civil and Scotch law, joint creditors; creditors in solido.

Correlative Ik;}rel;}div I.

Having a mutual or reciprocal relation, in such sense that the existence of one neces sarily implies the existence of the other. Father and son are correlative terms, as are claim and duty.

Refers to doctrine which is applied to owners of land and their rights to use of their land with respect to rights of adjoining or lower riparian landowners in water or oil. Alameda County Water District v. Niles Sand & Gravel Co. Inc., 37 Cal.App.3d 924, 1 12 Cal.Rptr. 846.

Correlative rights.

Interchange of written communica tions. The letters written by a person and the answers written by the one to whom they are addressed. The agreement of things with one another.

Correspondence.

An audit conducted by the In ternal Revenue Service through the use of the mail. Typically, the I.R.S. writes to the taxpayer requesting the verification of a particular deduction or exemption. The completion of a special form or the remittance of copies of records or other support is all that is requested of the taxpayer. See also Audit.

Correspondence audit.

A securities firm, bank or other finan cial organization which regularly performs services for another in a place or market to which the other does not have direct access. Securities firms may have corre spondents in foreign countries or on exchanges of which they are not members. Bank which serves as agent for another bank in performing services; e.g. carrying de posit balance for bank in another city.

Correspondent.

Correspondent bank.

See Correspondent.

Ik;}rob;}reyt/. To strengthen; to add weight or credibility to a thing by additional and con firming facts or evidence. The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of some other witnesses, or to comport with some facts otherwise known or estab lished. See Corroborating evidence.

Corroborate

Corroborating evidence Ik;}rob;}reytiIJ ev;}d;}ns/.

Evi dence supplementary to that already given and tending to strengthen or confirm it. Additional evidence of a different character to the same point. Edwards v. Ed wards, Tenn.App., 501 S.W.2d 283, 289. In some juris-

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dictions, corroborating evidence of an accomplice to the crime is given much weight. People v. Baker, 16 Il1.2d 364, 158 N.E.2d 1. Spoiled; tainted; vitiated; depraved; debased; morally degenerate. As used as a verb, to change ones morals and principles from good to bad.

Corrupt.

An act done with an intent to give some advantage inconsistent with official duty and the rights of others. 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 per son, contrary to duty and the rights of others. See Bribe;

Corruption.

Extortion.

In English law, the consequence of attainder, being that the attainted person could nei ther inherit lands or other hereditaments from his an cestor, 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, 1 10 N.Y. 317, 18 N.E. 148. 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. III, § 3.

Corruption of blood.

When used in a statute, this term, generally imports a wrongful design to acquire some pecuniary or other advantage.

Corruptly.

Doctrine invoked in assess ing crimes like bribery to determine motive of gift or payment.

Corrupt motive doctrine.

Federal and state statutes reg ulating campaign contributions and expenditures, in cluding disclosure requirements. 2 U .S.C.A. § 231 et seq.

Corrupt practices acts.

Corselet Ik6rsl;}t/.

Ancient armor which covered the

body. Corse-present Ik6rs prez;}nt/.

In old English law, a mortuary, thus termed because, when a mortuary be came 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 corpse. 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.

Corsned Ik6rsned/.

In Saxon law, the morsel of exe cration. A species of ordeal in use among the Saxons, performed by eating a piece of bread over 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. 4 Bl.Comm. 345.

Cortis I k6rt;}s I .

A court or yard before a house.

Ikorty;}leriy;}mI , or cortarium Ikorter iy;}m/. In old records, a yard adjoining a country farm.

Cortularium

Corvee Ikorvey I.

In French law, gratuitous labor exact ed from the villages or communities, especially for re pairing roads, constructing bridges.

Corvee seigneuriale Ikorvey seyny�riyal/.

Services due

the lord of the manor. Cosa juzgada Ik6wsa huwsgaoa/.

In Spanish law, a cause or matter adjudged (res judicata).

Cosas comunes Ik6wsas komuwne(y)sl.

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.

Cosbering Ik6zb;}riU/.

See Coshering.

Cosduna Ik6zduwn;}/.

In feudal law, a custom or trib

ute. Cosen, cozen Ik�z;}n/.

In old English law, to cheat.

Cosenage Ik�z(;})naj/.

(Also spelled "Cosinage," "Cousi nage.") In old English law, a writ that lay for the heir where the tresail, i.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. 3 Bl. Comm. 186. Kindred; cousinship; relationship; affini ty. 3 Bl.Comm. 186.

Cosening Ik�z(;})niu/.

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. 4 Bl.Comm. 158.

Coshering Ik6sh;}riU/.

In old English law, a feudal prerogative or custom for lords to lie and feast them selves at their tenants' houses.

Person who signs a document or instrument along with another, often assuming obligations and pro viding credit support to be shared with other obligorCs).

Cosigner.

Cosmopathic Ikozm;}preO;}k/.

Open to the access of su pernormal knowledge or emotion supposedly from a preternatural world; applied to methods of healing. Expense; price. The sum or equivalent expended, paid or charged for something. See also Actual cost;

Cost.

Costs; Net cost; Rate.

Cost accounting. The area of accounting which focuses on the method and system used to compile and analyze the costs of selling and manufacturing products. It includes the method for classifying, summarizing, re cording, reporting, and allocating the actual costs in curred and comparing them with the standard costs established. Areas of cost accounting include: job order, process, direct, and standard costing. Cost basis. In accounting, the cost of an asset is the amount paid for the asset in cash or property. The value placed on an asset in a financial statement in terms of its cost; used in determining capital gains or losses. Cost bond. See Costs, infra. Cost contract. See Cost-plus contract, infra.

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Cost depletion. In accounting and taxation, depletion computed in oil production without reference to dis covery or percentage depletion. Magale v. U. S., 118 Ct.Cl. 183, 93 F.Supp. 1004. Cost of completion. Measure of damages in breach of contract claim or action. Imputed cost. A value expressing cost which is derived from or based on factors other than actual cost records; estimated costs. Marginal cost. The increase or decrease in total cost that materializes as a result of a variation in output. Replacement cost. An appraisal method for determining value by substituting a like property. See also Replace ment cost.

Unit cost. Cost of a single unit of product or service. Total cost divided by number of units. Variable costs. Costs that change in total with changes in rate of production. Quoted sales price includes cost of goods and freight but not insurance or other special charges.

Cost and freight (C.A.F.).

Co-stipulator.

A joint promisor.

Cost of capital. The annual percent that a utility must

receive to maintain its credit, to pay a return to the owners of the enterprise and to insure the attraction of capital in amounts adequate to meet future needs. It involves a calculation of the interest a utility must pay on its borrowed capital (debt) and the cost of attracting and paying investors for its common or preferred stock (equity). Millinocket Water Co. v. Maine Public Utili ties Com'n, Me., 515 A.2d 749, 751. A provision, commonly in labor agreements, and also in certain pension, retirement, and disability benefit programs, giving an automatic wage or benefit increase tied in some way to cost-of-living rises in the economy. Cost of living is usually measured by the Consumer Price Index (CPI) (q. v.).

Cost of living clause.

May also exist in certain long term leases where, for example, rent increases are tied to Consumer Price Index. 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 there of as profits. Such contracts are used when costs of production or construction are unknown or difficult to ascertain in advance.

Cost-plus contract.

A pecuniary allowance, made to the successful party (and recoverable from the losing party), for his expenses in prosecuting or defending an action or a distinct proceeding within an action. In federal courts, costs are allowed as a matter of course to the prevailing party unless the court otherwise directs; also, specified fees and certain court expenses may be taxed as costs. Fed.R.Civil P. 54(d); Fed.R.App.P. 39; 28 U.S.C.A. § 1920. Generally, "costs" do not include attorney fees unless such fees are by a statute denominated costs or

Costs.

are by statute allowed to be recovered as costs in the case. Fees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by statute or court rule; e.g. filing and service fees.

See also Closing costs; Fee; Security for costs; Service charge.

Bill of costs. A certified, itemized statement of the amount of costs in an action or suit. 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. A bond which may be required of an appealing party in a civil case; e.g. Fed.R.App.P. 7. Purpose of bond is to cover appellee's costs in event of affirmance of judgment. Costs de incremento. Increased costs, costs of increase. Costs adjudged by the court in addition to those assessed by the jury. Costs of collection. Strictly, expenses involved in en deavoring 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. There is commonly a provision to this effect in such notes. It does not refer to costs of suit, which are recoverable by law. Costs of 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. 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. 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. Indirect costs. Costs not readily identifiable with pro duction of specific goods or services, but rather applica ble to production activity in general; e.g., overhead allocations for general and administrative activities. Interlocutory costs. Costs accruing upon proceedings in the intermediate stages of a cause, as distinguished from final costs; such as the costs of motions. Security for costs. 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. See also Cost bond, above. Statutory costs. Amounts awarded for various phases of litigation that are fixed by statute. Word "costs" gener ally refers to statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action and which statutes authorize to be taxed and included in the judgment. Terry v. Burger, 6 Ohio App.2d 53, 216 N.E.2d 383. See e.g. 28 U.S.C.A. § 1920.

COUNSEL

347 Taxation of litigation costs. generally, above.

See Taxation; also Costs,

Variable costs. Those costs which in the short run vary in close relationship with changes in output, including items such as raw materials, labor directly used in production, and per unit royalties. Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., C.A.Ill., 615 F.2d 427, 431. Quoted sales price which includes cost of goods, freight and insur ance.

Costs, insurance and freight (C.I.F.).

Costumbre I kostumbre(y) I .

In Spanish law, custom; an unwritten law established by usage, during a long space of time.

Co-sureties Ikowshur;}tiyz/.

Joint sureties; two or more sureties to the same obligation. A tenancy by several distinct titles but by unity of possession, or any joint ownership or common interest with its grantor. The term is broad enough to comprise both tenancy in common and joint tenancy.

Cotenancy.

Coterelli Ikot;}relay/.

Anciently, a kind of peasantry who were outlaws; robbers.

Coterellus Ikot;}rebs/.

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.

Coterie Ikowt;}riy I.

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.

In old English law, land held by a cottager, whether in socage or villenage.

Cotland.

Cotsethla I kotsetJl;} I kotsetl;} I .

In old English law, the little seat or mansion belonging to a small farm.

Cotsethland I kotsetJlrend I .

The seat of a cottage with

the land belonging to it. Cotsetus Ikotsiyt;}sI .

A cottager or cottage-holder who held by servile tenure and was bound to do the work of the lord.

Dwelling of farm laborer or small farmer. Small vacation house. In English law, a small dwelling house that has no land belonging to it.

Cottage.

Cottier tenancy Ik6tiy;}r ten;}nsiy I.

A species of tenan cy 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 a specified sum a year; the tenancy to be for not more than a month at a time; the landlord to keep the house in good repair. Receipts given for each bale of cotton received on storage by a public warehouse.

Cotton notes.

A term used in Domesday for peasants, boors, husbandmen.

Cotuchans.

Couchant I kawch;}nt I .

Lying down; squatting. Cou chant 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.

Coucher, or courcher Ikawch;}r/.

A factor who contin ues abroad for traffic; also the general book wherein any corporation, etc., register their acts.

Coulisse Ikuliysl.

The stockbrokers' curb market in

Paris. An assembly of persons for the purpose of concerting measures of state or municipal policy. The legislative body in the government of cities or boroughs. An advisory body selected to aid the executive; i.e. a body appointed to advise and assist the governor in his executive or judicial capacities or both. See also City

Council.

council; Legislative council; Metropolitan council.

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." Privy Council.

See that title.

Select Council. The name given, in some states, to the upper house or branch of the council of a city. In England, by the Acts 30 & 31 Vict., c. 105, power was 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 pow er 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.

Council of conciliation.

A body composed of mem bers 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. Established in 1852.

Council of Legal Education.

In England, a court instituted by Henry VIII, in 1537, to administer justice in Yorkshire and the four other northern counties. Under the presi dency of Stratford, the court showed great rigor, border ing, it is alleged, on harshness. It was abolished by 16 Car. I, the same act which abolished the Star Chamber.

Council of the north.

Counsel Ikawns;}l/.

Attorney or counsellor (q. v.).

Advice and assistance given by one person to another in regard to a legal matter, proposed line of conduct, claim, or contention. See also Counsel, right to.

COUNSEL The words "counsel" and "advise" may be, and fre quently 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. See Accomplice; Aid and abet.

See also Legislative counsel; Of counsel. 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 attorney; lawyer.

Member of the legal profession who gives legal advice and handles the legal affairs of client, including, if necessary, appearing on his or her behalf in civil, criminal, or administrative actions and proceedings. Attorney whose appearance has been filed with court papers.

Counsel of record.

Constitutional right of criminal de fendant to court appointed attorney if he is financially unable to retain private counsel; guaranteed by Sixth and Fourteenth Amendments to U.S. Constitution, and as well by court rule (Fed.R.Crim.P. 44), and statute (18 U.S.C.A. § 3006A). Such right to counsel exists with respect to felonies (Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792); misdemeanors when the sentence is to a jail term (Argersinger v. Hemlin, 407 U.S. 25, 92 S.Ct. 2006), and to juvenile delinquency proceedings (In re Gault, 387 U.S. 1, 87 S.Ct. 1428). The extent of this right extends from the time that judicial proceedings have been initiated against the accused, whether by way of formal charge, preliminary hearing, indictment, infor mation, or arraignment (Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232), through to sentencing (Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254) and appeal (Douglas v. California, 372 U.S. 353, 83 S.Ct. 814). There is no absolute right to appointed counsel in postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539. "Counsel" however within Sixth Amendment does not include a lay person but refers only to person authorized to practice law. U. S. v. Grismore, C.A.Colo., 546 F.2d 844, 847. See also Assist

Counsel, right to.

ance of counsel; Critical stage; Effective assistance of counsel; Escobedo Rule; Miranda Rule; Public defender.

In pleading, to declare; to recite; to state a case; to narrate the facts constituting a plaintiffs cause of 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, v.

348

An earl.

Common counts. Certain general counts or forms insert ed 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 gener al scope of the action. The various forms of an action of assumpsit. 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. tiffs claim.

One stating in a general way the plain

Money counts. A species of common counts, so called from the subject-matter of them; embracing the indebi tatus 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. 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. Several counts. Where a plaintiff has several distinct causes of action, he is allowed to pursue them cumula tively in the same action, subject to certain rules which the law prescribes. See e.g. Fed.R. Civil P. 8(e). 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 plaintiffs claim is set forth with all needed particulari ty. In old English law, the most eminent dignity of a subject before the Conquest. He was prrefectus or prrepositus comitatus, and had the charge and custody of the county; but this authority is now vested in the sheriff.

Countee.

In old English law, credit; estimation. Also, encouragement; aiding and abetting.

Countenance.

Adverse; antagonistic; opposing or con tradicting; contrary.

Counter, adj.

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.

In pleading, the plaintiffs statement of a cause of action; a separate and independent claim. Used also to signify the several parts of an indictment, each charging a distinct offense. Fed. R. Crim. P. 7(c)(I), 8. The usual organizational subunit of an indictment. Sanabria v. United States, 437 U.S. 54, 69 n. 23, 98 S.Ct. 2170, 2181 n. 23, 57 L.Ed.2d 43.

Counter-deed. A secret writing, either before a notary or under a private seal, which destroys, invalidates, or alters a public one.

"Count" and "charge" when used relative to allega tions in an indictment or information are synonymous. State v. Puckett, 39 N.M. 511, 50 P.2d 964, 965.

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

Count, n.

Counter-bond. Bond which indemnifies a surety. Counter-security below. Counterclaim.

See

See that title.

COUNTERPART WRIT

349

intended as security for a loan of money, and by it he agrees to reconvey the property on payment of a speci fied sum. The two instruments, taken together, consti tute what is known in Louisiana as an "antichresis" (q. v.).

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. Counter-security. A security given to one who has en tered into a bond or become surety for another; a countervailing bond of indemnity. A claim presented by a defendant in opposition to or deduction from the claim of the plain tiff. Fed.R. Civil P. 13. If established, such will defeat or diminish the plaintiffs claim. Vnder federal rule practice, and also in most states, counterclaims are either compulsory (required to be made) or permissive (made at option of defendant).

Counterclaim.

A counterclaim may be any cause of action in favor of one or more defendants or a person whom a defendant represents against one or more plaintiffs, a person whom a plaintiff represents or a plaintiff and other persons alleged to be liable. New York C.P.L.R. § 3019(a). For requisite content of counterclaim under Federal Rules of Civil Procedure, see Complaint. Compare Cross claim. See also Offset; Recoupment; Set-off; Transaction or occurrence test.

Compulsory counterclaim. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire juris diction to render a personal judgment on that claim. Fed.R. Civil P. 13(a). For claim to constitute a compulsory counterclaim, it must be logically related to original claim and arise out of same subject matter on which original claim is based; many of same factual legal issues, or offshoots of same basic controversy between parties must be involved in a compulsory counterclaim. Tasner v. Billera, D.C.Ill., 379 F.Supp. 809, 813. See also Transaction or occurrence test.

Permissive Counterclaim. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. Fed.R. Civil P. 13(b).

Counterfeit /kawnt�rfit/.

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 or secu rities. 18 V.S.C.A. § 471 et seq. Counterfeit in common parlance signifies fabrication of false image or represen tation; counterfeiting an instrument means falsely mak ing it; and in its broadest sense means making of copy without authority or right and with view to deceive or defraud by passing copy as original or genuine. Smith v. State, 7 Md.App. 457, 256 A.2d 357, 360, 361. See also Bootlegging; False making; Falsify; Forgery; Gray market goods; Imitation.

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.

Counterfeit coin.

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 simili tude to that which is lawful and genuine, with an intention of deceiving and imposing upon another.

Counterfeiter.

Counter-feisance.

The act of forging.

An agreement to reconvey where prop erty has been passed by absolute deed with the intention that it shall serve as security only.

Counter letter.

A change or revocation of orders, au thority, or instructions previously issued. It may be either express or implied; the former where the order or instruction already given is explicitly annulled or re called; the latter where the party's conduct is incompa tible with the further continuance of the order or in struction, as where a new order is given inconsistent with the former order.

Countermand.

Statement made by the offeree to the offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer. Thurmond v. Wieser, Tex.App. 10 Dist., 699 S.W.2d 680, 681 . A statement by the offeree which has the legal effect of rejecting the offer and of proposing a new offer to the offeror. Re statement, Second, Contracts, § 59. However, the provi sions of V.C.C. § 2-207(1)(2) modifies this principle of contract law as regards sales of goods by providing that the "additional terms are to be construed as proposals for addition to the contract."

Counteroffer.

In conveyancing, the corresponding part of an instrument; a duplicate or copy. Where an in strument 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. See Dupli

Counterpart.

cate.

A copy of the original writ, autho rized to be issued to another county when the court has

Counterpart writ.

COUNTERPART WRIT jurisdiction of the cause by reason of the fact that some of the defendants are residents of the county or found therein. In English law, the rolls which sheriffs have with the coroners, containing particulars of their proceedings, as well of appeals as of inquests, etc.

Counter-rolls.

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. See also Attestation. As a verb, to sign in addition to the signature of another in order to attest the authenticity. Counter-signature.

See Countersign.

To counterbalance; to avail against with equal force or virtue; to compensate for, or serve as an equivalent of or substitute for.

Countervail.

Countervailing equity.

See Equity.

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.

Countervail livery.

Counteur Ikawntyur/.

In the time of Edward I, a plead er; also called a Nurrator, and Serieant-Counteur. See Countors.

Countez Ikawntiyz/.

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 BI.Comm. 340, note (u).

Countors Ikawnt�rz/.

Advocates, or serjeants at law, whom a man retains to defend his cause and speak for him in court, for their fees. The territory occupied by an independent na tion or people, or the inhabitants of such territory. In the primary meaning "country" denotes the population, the nation, the state, or the government, having posses sion and- dominion over a territory.

Country.

Rural, as distinguished from urban areas. Within statute providing for deportation of aliens means country of alien's nativi ty, where domicile has not been acquired elsewhere. Immigration Act 1924, § 13; Schenck ex reI. Capodilupo v. Ward, C.C.A.Mass., 80 F.2d 422, 426. 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 129-133.

Country whence he came.

County. The largest territorial division for local govern

ment in state. Its powers and importance vary from state to state, and as well within the given state. In certain New England states, it exists mainly for judicial administration. In Louisiana, the equivalent unit is

350

called a parish. Counties are held in some jurisdictions to be municipal corporations, and are sometimes said to be involuntary municipal corporations. Other cases, seeking to distinguish between the two, hold that coun ties are agencies or political subdivisions of the state for governmental purposes, and not, like municipal corpora tions, incorporations of the inhabitants of specified re gions for purposes of local government. Counties are also said to be merely quasi corporations. Jefferson County ex reI. Grauman v. Jefferson County Fiscal Court, 274 Ky. 91, 118 S.W.2d 181, 184.

Body of the county. The county at large, as distin guished from any particular place within it. A county considered as a territorial whole. County affairs. Those relating to the county in its organic and corporate capacity and included within its governmental or corporate powers. County attorney. Attorney employed by county to repre sent it in civil matters; also, the prosecuting attorney in many counties. County auditor. County official whose responsibility is examination of accounts and financial records of the county. County board. The administrative body which governs a county. County board of equalization. A body created for the purpose of equalizing values of property subject to taxa tion. County board of supervisors. 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. 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. County business. All business pertaining to the county as a corporate entity. All business of the county, and any other business of such county connected with or interrelated with the business of any other county prop erly within the jurisdiction of the county commissioners' court. County commissioners. Officers of a county, charged with a variety of administrative and executive duties, but principally with the management 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". County courts. The powers and jurisdiction of such courts are governed by state constitutions or statutes; some with strictly administrative, or strictly judicial functions, or a combination of both; some with only criminal jurisdiction, or only civil, or both; some have exclusive jurisdictions, others concurrent jurisdiction; such jurisdictional powers may, in addition, be either general or specific. In England, such are the main civil courts. County Courts Act, 1984; Courts Act, 1971.

See the

COURSE

351

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. Public officers who fill a posi tion 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 carry ing out certain acts with the performance of which it is charged in behalf of the public. County palatine. A term bestowed upon certain coun ties in England, the lords of which in former times enjoyed especial privileges. They might pardon trea sons, 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 disap peared after the Judicature Act of 1925, § 18 and the Courts Act of 1971. County powers. Such only as are expressly provided by law or which are necessarily implied from those ex pressed. County property. That which a county is authorized to acquire, hold, and sell. County purposes. Those exercised by the county acting as a municipal corporation. 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 is concerned and will profit. 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. 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. County supervisors.

See County commissioners, above.

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. County-town. The county-seat; the town in which the seat of government of the county is located. 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. Foreign county. Any county having a judicial and mu nicipal 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. Coup d'etat /kuwdeyta/.

Political move to overthrow existing government by force.

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 distin guished from the proceeds or profits resulting from the exercise of the agency.

Coupled with an interest.

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 gener ally 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 payor. That portion of a bond redeemable at a specified date for interest payment.

Coupons.

Coupons are written contracts for the payment of a definite 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 instru ments 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 sepa rable promise, distinct from the promises to pay the bonds or the other coupons, and gives rise to a separate cause of action. Thompson v. Perrine, 106 U.S. 589, 1 S.Ct. 564, 27 L.Ed. 298.

Coupon bonds. Bonds to which are attached coupons for the several successive installments of interest to maturi ty. 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. Coupon rate of interest. The interest rate stated on a bond. The coupon rate of interest times the par, or principal, value of a bond determines the periodic dollar interest payments received by the bondholder. Coupon securities. Such securities usually provide for the payment of principal to the bearer thereof, and for payment of an installment of interest to the bearer of the respective interest coupons upon presentation there of upon their respective due dates. Coupon securities are usually in the denomination of $1,000. Ownership of the security and/or coupons is transferred by delivery thereof. Such a security is negotiable under the Uni form Commercial Code. U.C.C. §§ 8-105, 8-302. Cour de cassation /kur d::l kasasyown/.

The supreme judicial tribunal of France, having appellate jurisdiction only.

Course. In surveying, the direction of a line with refer

ence to a meridian.

COURSE OF BUSINESS

352

Course of business. What is usually and normally done

in the management of trade or business.

See also

Course of dealing; Regular course of business.

In worker'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 hav ing for their purpose the preservation of the premises or the appliances used in the business. 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 circumstanc es 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. A sequence of previous acts and conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct. U.C.C. § 1-205(1). See also Trade usage; Usage (Usage of trade).

Course of dealing.

These words as applied to compensation for injuries within the purview of work er's compensation acts, refer to the time, place, and circumstances under which the accident takes place. A worker 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. Generally, in order that an injury may arise out of and in the course of employment, it must be received while the worker 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 con nected therewith.

Course of employment.

The expression "in the course of his employment," in the rule that an employer is liable for the torts of an employee done in the course of employment, means while engaged in the service of the employer while engaged generally in the employer's work, as distin guished from acts done when the employee steps outside of employment to do an act for himself or herself not connected with the employer's business. The test as to whether an injury has arisen out of the "course of employment" is whether there is a causal connection between the duties of employment and the injury suf fered. Tri-State Commodities, Inc. v. Stewart, Colo. App., 689 P.2d 712, 713. State statutes and decisions differ as to the types and scope of activities which fall within "course of employ ment".

See also Arising out of and in the course of employment; Deviation; Scope of employment. The understandings of per formance which develop by conduct without objection between two parties during the performance of an exec utory contract.

Course of performance.

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. 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.

Course of the voyage.

What is customarily or ordinarily done in the management of trade or business. See also

Course of trade.

Course of business.

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.

Course of vein.

Course of vessel. In navigation, the "course" of a vessel

is her apparent course, and not her heading at any given moment. It is her actual course. A method or form for describ ing real estate in deeds and mortgages by setting forth the distances in one direction as a boundary, followed by other distances and the direction thereof until the entire parcel has been described. See also Metes and bounds.

Courses and distances.

A space which is uncovered, but which may be partly or wholly inclosed by buildings or walls. 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.

Court.

A legislative assembly. Parliament is called in the old books a court of the king, nobility, and commons assembled. 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 legisla ture. The person and suit 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. 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. The presence of a sufficient number of .the members of such a body regularly con vened in an authorized place at an appointed time, engaged in the full and regular performance of its functions. 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. 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. An organized body with de fined 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

COURT ADMINISTRATOR

353 execute its commands, and secure due order in its pro ceedings. The words "court" and "judge," or "judges," are fre quently used in statutes as synonymous. When used with reference to orders made by the court or judges, they are to be so understood. General Classification

Courts may be classified and divided according to several methods, the following being the more usual:

Appellate courts. Such courts review decisions of inferi or courts, and may be either intermediate appellate courts (court of appeals) or supreme courts. See Court of Appeals; Supreme Court.

Article III courts.

See Constitutional court.

Civil and criminal courts. The former being such as are established for the adjudication of controversies between individual parties, 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. While in some states there are both civil and criminal courts, in most states the trial court is a court of general Jurisdic tion (q. v.). 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 (normally the trial court). Court in bank (en bane). A meeting of all the judges of a court, usually for the purposes of hearing arguments on demurrers, motions for new trial, etc., as distinguished from sessions of the same court presided over by a single judge or panel of judges. See Full court, below. Court of competent Jurisdiction. One having power and authority of law at the time of acting to do the particu lar act. One recognized by law as possessing the right to adjudicate a controversy. One having jurisdiction under the Constitution and/or laws to determine the question in controversy. Court of general Jurisdiction. A court having unlimited trial jurisdiction, both civil and criminal, though its judgments and decrees are subject to appellate review. A superior court; a court having full jurisdiction within its own jurisdictional area. Court of limited Jurisdiction. Court with jurisdiction over only certain types of matters; e.g. probate or juve nile court. When a court of general jurisdiction pro ceeds under a special statute, it is a "court of limited jurisdiction" for the purpose of that proceeding, and its jurisdiction must affirmatively appear. Court of original Jurisdiction. Courts where actions are initiated and heard in first instance. Court of record. A court that is required to keep a record of its proceedings, and that may fine or imprison. Such record imports verity and cannot be collaterally impeached.

De facto court. One established, organized, and exercis ing 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. Equity courts and law courts. The former being such as possess the jurisdiction of a chancellor, apply the rules and principles of chancery (i.e. equity) 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. Under Rules of Civil Procedure, however, equity and law have been merged at the procedural level, and as such this distinc tion no longer exists in the federal courts nor in most state courts, though equity substantive jurisprudence remains viable. Fed.R.Civil P. 2. See Court of Chancery; Court of Equity.

Full court. A session of a court, which is attended by all the judges or justices composing it. See Court in bank, above. Spiritual courts. In English law, the ecclesiastical courts, or courts Christian. 3 Bl.Comm. 61. See Ecclesi astical courts.

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 particu lar group or system of courts of high powers, and all others are called "inferior courts". Trial courts. Generic term for courts where civil actions or criminal proceedings are first commenced at the state level such are variously called municipal, circuit, superi or, district, or county courts. At the federal level, the U.S. district courts are the trial courts. As to the division of courts according to their Jurisdic tion, see Jurisdiction. As to several names or kinds of courts not specifically described in the titles immediately following, see Admi ralty court; Appellate court; Arches Court; Bankruptcy proceedings (Bankruptcy courts); Circuit courts; City courts; Claims court; Commonwealth court; ConSistory courts; Constitutional court; Consular courts; County (County courts); Court-baron; Court of High Commission; Customs Court; District (District courts); Ecclesiastical courts; Family court; Federal courts; Forest courts; In stance court; Insular courts; International Court of Justice; Justice' s courts; Kangaroo court; Land court; Legislative courts; Maritime court; Mayor' s court; Military courts; Moot court; Municipal courts; Orphan ' s courts; Police court; Prerogative court; Prize courts; Probate court; Su perior (Superior courts); Supreme court; Surrogate court; Tax court; United States Courts.

Generally, a non-judicial officer whose responsibility is the administration of the courts

Court administrator.

COURT ADMINISTRATOR

354

as to budgets, juries, judicial assignments, calendars and non-judicial personnel. In English law, a court which, although not one of record, was incident to every manor, and could not 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. Customary court-baron was one appertaining entirely to copyholders. 3 Bl.Comm. 33. Freeholders ' court-baron was one held before the freeholders who owed suit and service to the manor. It was the court-baron proper.

Court-baron.

A list of cases for trial or appellate argument prepared for a given period of time as a week, month or even a term of the sitting of the court. Such may include scheduling of motions and other pretrial matters. See also Docket.

Court calendar.

The ecclesiastical courts in England often so called, as distinguished from the civil courts. 1 Bl.Comm. 83; 3 Bl.Comm. 64.

Court Christian.

A person appointed by a judge to take testimony and find facts or to carry out some specific function connected with a case, such as selling property which is the subject of a petition to partition. See also Commissioner; Court administrator; Magistrate;

Court commissioner.

Master; Referee. Court en banc Ikurt om bOIJk/.

See Court (Court in

bank). Courtesy.

See Curtesy.

Court for Consideration of Crown Cases Reserved.

In England, a court established by St. 11 & 12, Vict., c. 78, composed of such of the judges of the superior courts of Westminister as were able to attend, for the consider ation 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. 4 Steph. 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 Crimi nal Appeal was created and the Court for Crown Cases Reserved was abolished. 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 ':!ourt consisted of the lord chancellor, the three chiefs, and three senior puisne judges of the common-law courts, and the judge ordi nary, who together constituted, and still constitute, the "full court." The judge ordinary heard almost all mat ters in the first instance. By the judicature act, 1873, § 3, the jurisdiction of the court was transferred to the supreme court of judicature.

Court for Divorce and Matrimonial Causes.

The name 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 Correction of Errors.

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. Abolished by the Bankruptcy Act of 1861. 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 assem bly. See also Impeachment.

Court for the Trial of Impeachments.

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 the important quality of durability.

Court-hand.

The writing of this hand, with its peculiar abbrevia tions 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. The building occupied for the public ses sions of a court, with its various offices. The building occupied and appropriated according to law for the hold ing of courts.

Court-house.

Court, Hundred. See Hundred Court. Court-Lands. Domains or lands kept in the lord's hands

to serve his family. The name of an English court of record held once in the year, and not oftener, within a particu lar 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.

Court-Leete

An ad hoc military court, convened un der authority of government and the Uniform Code of Military Justice, 10 U.S.C.A. § 801 et seq., for trying and punishing offenses in violation of the Uniform Code of Military Justice committed by persons subject to the Code, particularly members of the armed forces. Courts-martial are courts of law and courts of justice although they are not part of the federal judiciary established under Article III of the Constitution. They are legislative criminal courts established in the armed forces under the constitutional power of congress to regulate the armed forces. Their jurisdiction is entirely penal and disciplinary. They may be convened by the

Court-Martial.

355 president, secretaries of military departments and by senior commanders specifically empowered by law. The type (e.g. summary, special, or general) and composition of courts-martial varies according to the gravity of of fenses. Generally they are designed to deal with the internal affairs of the military when summary command discipline is inadequate to achieve corrective results, but they have concurrent jurisdiction with civil courts over a wide range of civil offenses. See Courts of Military Review; Court of Military Appeals. See also Code of M ilitary Justice.

A court having jurisdiction of admiralty and maritime matters; such jurisdiction be ing possessed by federal district courts. See Admiralty

Court of Admiralty.

Court.

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 pro bate, divorce, and admiralty division of the high court of justice. The Justice Act of 1970 established a new Admiralty Court as part of the Queens Bench Division of the High Court. Now governed by Supreme Court Act, 1981, §§ 4, 5. 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.

Court of Ancient Demesne.

Formerly, the chief appellate tribunal of England. It was established by the judicature acts of 1873 and 1875, and invested with the jurisdiction formerly exercised by the court of appeal in chancery, the exchequer chamber, the judicial commit tee of the privy council in admiralty and lunacy appeals, and with general appellate jurisdiction from the high court of justice. It consists of the Lord Chancellor, Lord Chief Justice, Master of the Rolls, President of the Family Division, former Lord Chancellors, Lords of Ap peal in Ordinary and Lords Justices of Appeal. There are two divisions: (1) Criminal Division which hears appeals from the Crown Court. (2) Civil Division which hears appeals from various civil tribunals. Appeal lies from both divisions to the House of Lords.

Court of Appeal, His Majesty's.

In those states with courts of ap peals, such courts are usually intermediate appellate courts (with the highest appellate court being the state Supreme Court). In New York, Maryland, and the District of Columbia, however, such are the highest appellate courts. In West Virginia the Supreme Court of Appeals is the court of last resort. Alabama, Okla homa, Tennessee, and Texas have Courts of Criminal Appeals, with those in Oklahoma and Texas being the highest appellate courts for criminal matters. Alabama, Oklahoma, and Texas have Courts of Civil Appeals, which are intermediate appellate courts. See also Su

Court of Appeals.

preme Court.

COURT OF BROTHERHOOD The United States is divided into thirteen federal judicial circuits in each of which there is established a court of appeals known as the United States Court of Appeals for the circuit. Included in these thirteen judi cial circuits is the Court of Appeals for the District of Columbia and the Court of Appeals for the Federal Circuit. 28 U.S.C.A. §§ 41, 43. See Courts of Appeals, U.S. Court of Appeals for the Federal Circuit. See Courts

of Appeals, U.S. 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 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). Such court is now virtually obsolete. Court of Assistants. Formerly a court in Massachusetts

organized in 1630, consisting of the governor, deputy governor and assistants. It exercised the whole power both legislative and judicial of the colony and an exten sive chancery jurisdiction as welL Court of Attachments. In old English law, the lowest of

the three courts held in the forests. It has fallen into total disuse. 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. An ecclesiastical court, in which the primates once exercised in person a considerable part of their jurisdiction. Such courts, which existed in England for both the Archbishop of Canterbury and York, have long since been disused.

Court of Audience.

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 augmenta tion 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.

Court of Augmentation.

Federal court established in each judicial district, as an adjunct to the U.S. district court for such district, with general jurisdiction over bankruptcy matters. 28 U.S.C.A. §§ 151, 1334. See also

Court of Bankruptcy.

Bankruptcy proceedings.

In old English law, an assembly of the mayors or other chief officers of the principal towns of the Cinque Ports in England, originally admin istering the chief powers of those ports, now almost extinct.

Court of Brotherhood.

COURT OF CHANCERY A court administering equity and proceeding according to the forms and principles of equity. In England, prior to the Judicature Acts of 1925 (whereby the Court was superseded by the Chancery Division), the style of the court possessing the largest equitable powers and jurisdiction was the "High Court of Chancery." By the Supreme Court of Judicature Act, 1925, all three divisions of the High Court administer both law and equity. See now, Supreme Court Act, 1981, § 49.

Court of Chancery.

In some of the United States, the title "court of chancery" is applied to a court possessing general equity powers, distinct from the courts of law. Courts of chan cery (equity courts) have been abolished by all states that have adopted Rules of Civil Procedure. See also Court of Equity.

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. It had jurisdiction as to contracts and other matters 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 (except for one case in 1955, after a lapse of 200 years) 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 Chivalry.

Such exist as intermediate appellate courts in Alabama, Oklahoma, and Texas. The Texas Court of Civil Appeals has appellate jurisdic tion of cases decided in district and county courts.

Court of Civil Appeals.

The federal Court of Claims was established in 1855. The Federal Courts Improvement Act of 1982 abolished this Court and created a new United States Claims Court. Combined with the also abolished United States Court of Customs and Patent Appeals, the former Court of Claims became the new United States Court of Appeals for the Federal Circuit (C.A.F.C.). The "Trial Division" of the former Court of Claims became the newly created U.S. Claims Court. See

Court of Claims.

Claims Court, U.S.; Tucker Act.

A number of states also have courts of claims (e.g., Illinois, Michigan, New York, Ohio). 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 exclu sive jurisdiction of all real actions and of communia placita, or common pleas, i.e., between subject and sub ject. It was presided over by a chief justice with four puisne judges (later five, by virtue of 31 & 32, Vict., c. 125, § 11, subsec. 8). Appeals lay anciently to the king's bench, but afterwards to the exchequer chamber. See 3

Court of Common Pleas.

356

Bl.Comm. 37, et seq. Its jurisdiction was altogether confined to civil matters, having no cognizance in crimi nal cases, and was concurrent with that of the queen's bench and exchequer in personal actions and ejectment. In 1873 the court became the Common Pleas Division of the High Court of Justice. In 1880 by Order in Council that division was merged into the Queen's Bench Divi sion. In the United States, such courts exist in Pennsylva nia wherein all civil and criminal actions are begun (except such as are brought before courts of inferior jurisdiction). Most such courts have been abolished, however, with their jurisdiction being transferred to district, circuit, or superior courts. Court of Conciliation. A court which proposes terms of

adjustment, so as to avoid litigation; e.g. conciliation between debtor and creditor over disputed debt. May also function to aid in resolving marital disputes. See also Small Claims Court. The same as courts of request (q. v.). This name was also frequently applied to the courts of equity or of chancery, not as name but as a description. See also Conscience.

Court of Conscience.

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 was in the nature of an ecclesiastical parliament; and, so far as its judicial functions extend, it had juris diction of cases of heresy, schism, and other purely ecclesiastical matters. An appeal was to the king in council.

Court of County Commissioners.

In some states, a

court of record in each county. Court of Criminal Appeals. See Court of Appeals. Court of Customs and Patent Appeals.

See Customs

and Patent Appeals Court.

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 court were, by 2 & 3 Wm. IV, c. 92, transferred to the privy council. 3 Bl.Comm. 66. A commission of review was formerly granted, in extraor dinary cases, to revise a sentence of the court of del egates, when that court had apparently been led into material error.

Court of Delegates.

A court which has jurisdiction in equity, which administers justice and decides controver sies in accordance with the rules, principles, and prece dents of equity, and which follows the forms and proce dure of chancery; as distinguished from a court having the jurisdiction, rules, principles, and practice of the common law. Equity courts have been abolished in all states that have adopted Rules of Civil Procedure; law and equity actions having been merged procedurally into a single form of "civil action". Fed.R. Civil P. 2. See also Court of Chancery.

Court of Equity.

COURT OF INQUIRY

357

An expression formerly applied espe cially in England to the court of exchequer chamber and the house of lords, as taking cognizance of error brought. It was formerly applied in some of the United States (e.g. Connecticut) 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 Error.

Formerly, the court of last resort in the states of New Jersey and New York.

Court of Errors and Appeals.

Court of Exchequer Ikort �v ekschek�r/.

In English law, a very ancient court of record, set up by William the Conqueror as a part of the aula regis, and after wards 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" and by Orders in Council under Sec. 32 of that Act the Exchequer Division was in turn merged in the Queen's Bench Division.

In English law, a court of criminal jurisdiction held in each county once in every quarter of a year, but in the county of Middlesex twice a month. When held at other times than quarterly, the sessions were called "general sessions of the peace." Quarter sessions were abolished by the Courts Act of 1971, with most jurisdiction trans ferred to the Crown Court (q. v.). The name given in some states to a court of general original jurisdiction in crimi nal cases.

Court of General Sessions.

A court formerly held in Wales; abolished by 1 1 Geo. IV, and 1 Wm. IV, c. 70 (1830) and the Welsh judicature incorporated with that of England.

Court of Great Sessions in Wales.

In old English law, an assembly of the members of the Court of Brotherhood (supra) togeth er with other representatives of the corporate members of the Cinque Ports, invited to sit with the mayors of the seven principal towns.

Court of Guestling.

In English law, an ecclesi astical court of formidable jurisdiction, for the vindica tion of the peace and dignity of the church, by reform ing, ordering, and correcting the ecclesiastical state and persons, and all manner of errors, heresies, schisms, abuses, offenses, contempts, and enormities. Under such jurisdiction the Court exercised enormous despotic power. 3 Bl.Comm. 67. It was erected by St. 1 Eliz., c. 1 (1588), and abolished in 1640. James II attempted to resurrect it. The Bill of Rights declared it illegal in 1688.

Court of High Commission.

Court of Exchequer Chamber Ikort �v ekschek�r

In old English law, a court having jurisdiction to hear and redress injuries or affronts to a man's honor or personal dignity, of a nature not cogniza ble by the ordinary courts of law, or encroachments upon his rights in respect to heraldry, coat-armor, 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.

cheymb�r I. 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. By the judicature act (1873) the jurisdiction of this court was transferred to the court of appeal.

The name is also given in some European countries to a tribunal of army officers (more or less distinctly recog nized by law as a "court") convened for the purpose of inquiring into complaints affecting the honor of brother officers and punishing derelictions from the code of honor and deciding on the causes and occasions for fighting duels, in which officers are concerned, and the manner of conducting them.

Court of Faculties Ikort �v frek�ltiyz/.

A tribunal of the archbishop in England. It does not hold pleas in any suits, but grants special dispensations, and creates rights to pews, monuments, and other mortuary mat ters. It has also various other powers as given by the Ecclesiastical Licenses Act of 1533.

A court of original or primary jurisdiction, e.g. trial court. Courts of this title may be found in the jurisprudence of the Philippine Islands.

Court of First Instance.

Court of General Quarter Sessions of the Peace. For

merly, a court of criminal jurisdiction in New Jersey.

Court of Honor.

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. Since the abolition of all real and mixed actions except ejectment, the jurisdiction of this court has fallen into comparative desuetude. Formerly, a local court in some parts of Virginia. In English law, a court sometimes appointed by the crown to ascertain whether it be prop er to resort to extreme measures against a person

Court of Inquiry.

COURT OF INQUIRY charged before a court-martial. Also a court for hearing the complaints of private soldiers. 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. 1 15, 1 16. Repealed by Act June 4, 1920, c. 227, § 4, 41 Stat. 812. 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 re port thereon. They could not compel the attendance of witnesses nor require them to testify. In Texas when a judge of any county or district court of this state, acting in his capacity as magistrate, has good cause to believe that an offense has been commit ted against the laws of this state, he may summon and examine any witness in relation thereto in accordance with the rules hereinafter provided, which procedure is defined as a "Court of Inquiry". This federal court was originally established as the Board of United States General Appraisers in 1890, and in turn was superseded by the United States Customs Court in 1926. In 1956 the Customs Court was established as an Article III court. The Customs Court Act of 1980 constituted the court as the United States Court of International Trade and revised its jurisdiction. As so reconstituted, the court has jurisdiction over any civil action against the United States arising from federal laws governing im port transactions and also jurisdiction to review deter minations as to the eligibility of workers, firms, and communities for adjustment assistance under the Trade Act of 1974. Civil actions commenced by the United States to recover customs duties, to recover on a customs bond, or for certain civil penalties alleging fraud or negligence are also within its exclusive jurisdiction. The court is composed of a chief judge and eight judges, not more than five of whom may belong to any one political party.

Court of International Trade.

In English law, the principal of Called also Court of the Chief Justice

Court of Justice Seat.

the forest courts. in Eyre (q. v.).

In English law, the supreme court of common law in the kingdom; merged in the Supreme Court by the Judicature Act, 1873, § 6. 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 King's (or Queen's) Bench.

The Queen's Bench Division of the High Court is today one of three divisions of the High Court. The others are the Chancery Division and the Family Divi sion. Its jurisdiction and composition are governed by the Supreme Court Act, 1981, §§ 4(4), 61(1). Court which handles the final appeal on a matter; e.g., the U.S. Supreme Court for federal cases.

Court of last resort.

358 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 proceeding according to the course of the common law and governed by its rules and principles, as contrasted with a "court of equity (q. v.)."

Court of Magistrates and Freeholders. 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 /kort

:;IV marsh:;llsiy /. 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 do mestic 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, Vict., c. 101, § 13 (1849).

Court of Military Appeals. This court was established

by Congress in 1950 (10 U.S.C.A. § 867). It is the primary civilian appellate tribunal responsible for re viewing court-martial convictions of all the services. It is exclusively an appellate criminal court. The court, consisting of three civilian judges appointed by the pres ident, is called upon to exercise jurisdiction as to ques tions of law in all cases extending to death; questions certified to the court by the Judge Advocates General of the armed services, and by the general counsel of the Department of Transportation, acting for the Coast Guard; petitions by accused who have received a sen tence of a year or more confinement, and/or a punitive discharge. Decisions of this court are subject to review by the Supreme Court by a writ of certiorari. The Supreme Court may not review by a writ of certiorari, however, any action of this court in refusing to grant a petition for review. 10 U.S.C.A. § 867(3)(h)(i). See also Courts of Military Review. Court of Nisi Prius /kort

:;IV naysay pray:;ls/. Though this term is frequently used as a general designation of any court exercising general, original 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 abol ished by the constitution of 1874. See Assize; Courts of

Assize and Nisi Prius; Nisi prius.

In Georgia such courts formerly had exclusive and general jurisdiction over probate of wills; granting letters testamentary, or of administra tion, and revocation of same; management, disposition and distribution of estate of decedents, idiots, lunatics and insane persons and of all such other matters and things as appertain or relate to same; appointment and removal of guardians of minors and persons of unsound mind and all controversies as to right of guardianship; receiving and hearing applications for homestead and exemption and granting same; and concurrently with

Court of Ordinary.

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judge of the county court, jurisdiction in binding out of orphans and apprentices, and all controversies between master and apprentice. The Probate Court now has jurisdiction over such matter. Court of Orphans Ikort ;)v 6rf;)nz/.

In Maryland and Pennsylvania, a court, elsewhere known as a "Probate" or "Surrogates" court, with general jurisdiction over matters of probate and administration of estates, or phans, wards, and guardians. of Oyer and Terminer Ikort ;)v 6y;)r �nd t:)rm;)n;)r/. In England, formerly, a court for the trial of cases of treason and felony. The commissioners of as sise and nisi prius were judges selected by the king and appointed and authorized under the great seal, includ ing 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, both civil and criminal. They sat by virtue of several commissions, each of which, in reality, constituted them a separate and dis tinct court. The commission of oyer and terminer gave 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 possessed full criminal jurisdiction. The assize courts have since been abolished and replaced by the Crown Court.

Court

In American law, this name was generally used (some times, 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 common ly applied to such courts as may try felonies, or the higher grades of crime. Such courts existed in Dela ware and Pennsylvania. They were abolished in New York and New Jersey in 1895. Court of Oyer and Terminer and General Gaol (or Jail) Delivery Ikort ;)v 6y;)r �nd t:)rm;)n;)r rend jen;)r;)l

jeyl d;)liv;)riy/. In American law, formerly, a court of criminal jurisdiction in the state of Pennsylvania. It was held at the same time with the court of quarter sessions, as a general rule, and by the same judges. Pa.Const. art. 5, § 1. In English law, formerly a tribunal for the examina tion and trial of criminals. Such jurisdiction is now in the Crown Court. In England, this court had jurisdiction of personal actions arising within twelve miles of the palace at Whitehall. Abolished by 12 & 13, Viet., c. 101. See Court of the Steward and

Court of Palace at Westminster.

Marshal.

In England, an inferior court, pos sessing 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 had the same jurisdiction in admiralty matters as the Lancashire county court. Such court was abolished by the Courts Act of 1971.

Court of Passage.

Court of Peculiars Ikort ;)v p;)kyuwly;)rz/.

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 metropoli tan only. All ecclesiastical causes arising within these peculiar or exempt jurisdictions are originally cogniza ble by this court, from which an appeal lies to the Court of Arches. Most of such courts have been abolished by legislation. See also Arches Court.

Court of Piepoudre Ikort ;)v payp6wd;)r I.

(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 to have been so called from the dusty feet of the suitors. It was a court of record incident to every fair and market, was held by the steward, and had jurisdiction to admin ister justice for all commercial injuries and minor of fenses done in that same fair or market (not a preceding one). An appeal lay to the courts at Westminster. This court long ago fell into disuse. 3 Bl.Comm. 32. In England, a court of the county palatine of Durham, having a local common-law jurisdic tion. It was abolished by the judicature act, which transferred its jurisdiction to the high court. 3 Bl. Comm. 79.

Court of Pleas.

In England, a court c. 12 (1601), to determine between merchants, con The court was formally Vict., c. 125 (1863). 3

Court of Policies of Assurance.

established by statute 43 Eliz., in a summary way all causes cerning policies of insurance. abolished by Stat. 26 & 27, Bl.Comm. 74.

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 Private Land Claims.

A court existing in many states 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 over divorce, custody, adop tion and change of name matters and of the estates of minors, including the appointment of guardians and the settlement of their accounts, and of the estates of luna tics, habitual drunkards, and spendthrifts. And in some states these courts possess a limited jurisdiction in civil and criminal cases. They are also called in some juris dictions "Orphans' courts" (e.g. Maryland, Pennsylvania) and "Surrogate's courts" (e.g. N.Y.).

Court of Probate.

In England, the name of a court established in 1857, under the probate act of that year (20 & 21 Vict., c. 77), to be held in London, to which court was transferred the

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testamentary jurisdiction of the ecclesiastical courts. The probate court was merged in the Supreme Court of Judicature in 1873, and its jurisdiction is now split between the Chancery and Family divisions. Court established in England to administer the property of mentally disabled persons, as defined in the Mental Health Act, 1983.

Court of Protection.

Court of Pypowder, Py-Powder, or Py-Powders Ikort

�v paypawd�r(z)/. See Court of Piepoudre. Formerly, a court of criminal jurisdiction in the state of Pennsylva nia, having power to try misdemeanors, and exercising certain functions of an administrative nature.

Court of Quarter Sessions of the Peace.

Court of Queen's Bench. Court of Record.

See Court of King's Bench.

See Court, supra.

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 has long since been obsolete. 3 Bl.Comm. 71, 72.

Court of Regard.

Courts of criminal jurisdiction exist ing in only a few states.

Court of Sessions.

In old English law, 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 was abolished by 18 & 19 Vict., c. 48.

Court of Shepway.

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.

Court of Special Sessions.

Court of Stannaries Ikort �v stren�riyz/.

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 was a court of record, with a special jurisdiction. By the Stannaries Court (Abolition) Act of 1896 their jurisdiction was transferred to country courts.

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 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 Car. I, c. 10, to

the general satisfaction of the Habeas Corpus Act of 1640. 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 Survey.

Court of Sweinmote Ikort �v sweynmowt/.

(Spelled, also, Swainmote, Swain-gemote.) Saxon, swang, an at tendant, a freeholder, and mote or gemote, a meeting. In England, 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 compos ing 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.

Court of the Chief Justice in Eyre.

In England, 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. After the Restoration, the forest laws fell into disuse. The office was abolished in 1817.

Court of the Clerk of the Market. An English court of

inferior jurisdiction formerly held in every fair or mar ket for the punishment of misdemeanors committed therein. The jurisdiction over weights and measures formerly exercised was taken away by Stat. 526 Will. IV, c. 63. In England, formerly a court of record to inquire, when any one died in prison, or came to a violent or sudden death, by what manner he came to his end. 4 Bl.Comm. 274. Such functions are now performed by the coroner or by a coroner's inquest. See

Court of the Coroner.

Coroner.

In English law, a species of private court which formerly appertained to the counties palatine of Lancaster and Durham.

Court of the Counties Palatine.

Court of the Duchy of Lancaster. In England, 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. Though not formerly abolished, such court has not sat since 1835. In the reign of William the Conqueror the marshal was next in rank to the con stable, 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, Court-

Court of the Earl Marshal.

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36 1

Martial. 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. See Constable; Court of Chivalry; Court-Martial. 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 mari time 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. In English law, a court formerly instituted for the trial, during the recess of parliament, of peers indicted for treason or felony, or for misprision of either. This court was not a perma nent body, but was created when occasion required and for the time being, only; and the lord high steward, so constituted, with such of the temporal lords as may take the proper oath, and act, constituted the court. Privi lege of peerage was abolished by Sec. 30 of the Criminal Justice Act of 1948.

Court of the Lord High Steward.

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 univ ersity at Oxford or Cambridge who were indicted for treason, felony, or mayhem. 3 Bl.Comm. 83. This court, the Court of the "Official Principal" of the Archbishop of Canter bury, is more commonly called the Arches Court, or Court of the Arches. See Arches Court.

Court of the Official Principal.

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 house hold for twelve miles, which circuit was called the "verge." It had also jurisdiction of actions of debt and covenant, where both the parties were of the household. 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 and Marshal.

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 repealed by the Statute Law Revi sion Act of 1948. 4 Bl.Comm. 276, 277.

Court of the Steward of the King's Household.

The U.S. Court of Veter ans Appeals is an Article I court created in 1988 to review decisions of the Board of Veterans' Appeals. Appeals from this Court are to the U.S. Court of Appeals for the Federal Circuit. 38 U.S.C.A. § 4051 et seq.

Court of Veterans Appeals.

A court of record, estab lished 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." This court was not only for the manage ment 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. It was abol ished by St. 12 Car. II, c. 24.

Court of Wards and Liveries.

An attempt by President F. D. Roosevelt in 1937 to replace those justices of the U.S. Supreme Court who did not subscribe to his social phi losophy with men whose views were consonant with his.

Court packing plan.

Court record.

See Record.

A person who transcribes by short hand, stenographically takes down, or electronically records testimony during court proceedings, or at trial related proceedings such as depositions. If an appeal is to be taken wherein an official record is required, the reporter prepares an official transcript from his or her record. A reporter may also constitute the person re sponsible for publication of the opinions of the court; sometimes called "Reporter of Decisions".

Court reporter.

In England, the rolls of a manor, contain ing 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. Under the law of Property Act of 1922 copyholds became freeholds and manorial rights were extinguished subject to the provi sions therein contained.

Court rolls.

That portion of a courthouse in which the actual proceedings (i.e. trial, motions, etc.) take place. Compare Chamber.

Court room.

Regulations with the force of law governing practice and procedure in the various courts. They may cover all procedures in a trial court system (e.g. Federal Rules of Civil and Criminal Procedure), or govern only procedures before a specific court (e.g. U.S. Supreme Court Rules), or only certain aspects of procedure (e.g. Federal Rules of Evidence), or they may be so called housekeeping rules which govern internal court practic es and procedures. Most states have adopted in whole, or substantially, rules patterned on the Federal Rules of Civil Procedure to govern civil cases. Also, a growing number of states have adopted Rules of Criminal Proce dure and Rules of Appellate Procedure modeled after the Federal Rules of Criminal and Appellate Procedure. In addition, a number of states have adopted Rules of Evidence patterned on the Federal Rules of Evidence.

Court rule.

Courts martial.

See Court-Martial.

Intermediate appellate courts created by Congress in 1891 and known until 1948 as United States Circuit Courts of Appeals, sitting in elev en numbered circuits, the District of Columbia, and the

Courts of Appeals, U. S.

COURTS OF APPEALS, U. S. Court of Appeals for the Federal Circuit. Normally cases are heard by divisions of three judges sitting together, but on certain matters all the judges of a circuit may hear a case. Courts of Appeals have appel late jurisdiction over most cases decided by United States District Courts and review and enforce orders of many federal administrative bodies. The decisions of the courts of appeals are final except as they are subject to discretionary review on appeal by the Supreme Court. 28 U.S.C.A. §§ 41, 43, 1291. See also Temporary Emer gency Court of Appeals.

Court of Appeals for the Federal Circuit. Federal court, established in 1982, with appellate jurisdiction over ac tions arising under the laws relating to patents, plant variety protection, copyrights, trademarks, contract and property claims against the United States, appeals from the United States Claims Court, Patent and Trademark Office, the United States Court of International Trade, the Merit Systems Protection Board, the Court of Veter ans Appeals, as well as appeals under the Plant Variety Protection Act, the Contract Disputes Act, decisions by the United States International Trade Commission re lating to unfair import practices, and decisions by the Secretary of Commerce relating to import tariffs. 28 U.S.C.A. § 1295. Courts of Assize and Nisi Prius /korts ;}v ;}sayz rend

naysay pray;}s/. Courts in England composed of two or more commissioners, called "judges of assize" (or of "assize and nisi prius"), who were 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 fact as were there under dispute in the courts of Westminster Hall. With the establishment of the Crown Court (1971), these courts were abolished. These intermediate appel late criminal courts, formerly constituted as Boards of Review, were established by the Military Justice Act of 1968 (10 U .S.C.A. § 866) to review court-martial convic tions of their respective services. These courts are oper ated by the Army, Air Force, Navy/Marine Corps and the Coast Guard. Each court has one or more panels and each panel is composed of at least three appellate military judges. The court may sit in panels or en banco The courts possess independent fact-finding powers and may weigh evidence, judge witness credibility, and deter mine controverted questions of fact, giving due defer ence to the findings of the trial court. The court re views cases in which the punishment imposed extends to death, dismissal or punitive discharge, or confinement for one year or more, except when the service member voluntarily waives the right to appeaL The court also possesses extraordinary writs power. Its opinions are subject to review by the United States Court of Military Appeals. See Court of Military Appeals.

Courts of Military Review.

Those courts whose proceedings are permanently recorded, and which have the power to fine or imprison for contempt.

Courts of record.

362

Inferior courts, in England, having local jurisdiction in claims for small debts, established in various parts of the kingdom by special acts of par liament. They were superseded in 1846 by the county courts.

Courts of Request.

Courts held for the enforcement of the forest laws. See Forest courts.

Courts of the Forest.

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 varie ties of lesser franchises. Some of these franchises were recognized as existing by the County Courts Acts, 18461888.

Courts of the Franchises.

"Court of the United States" includes the Supreme Court of the United States, courts of appeals, district courts, Court of Inter national Trade, and any court created by Act of Con gress the judges of which are entitled to hold office during good behavior. 28 U.S.C.A. § 451. Also, the senate sitting as a court of impeachment.

Courts of the United States.

The superior courts, both of law and equity, were for centuries fixed at Westmin ster, 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 king dom 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.

Courts of Westminster Hall.

The network of courts in a particular e.g. trial, appellate, juvenile, land, etc.,

Court system.

jurisdiction; courts.

A corrupted form of "curtilage", signifying a space of land about a dwelling house, which not only might be inclosed, but within which appurtenant build ings and structures might be erected.

Courtyard.

Cousin /k�z:m/.

Kindred in the fourth degree, being the issue (male or female) of the brother or sister of one's father or mother.

Those who descend from the brother or sister of the father of the person spoken of are called "paternal cousins", "maternal cousins" are those who are descend ed from the brothers or sisters of the mother. Cousins german are first cousins.

First cousins. Cousins-german; the children of one's uncle or aunt. Quarter cousin. Properly, a cousin in the fourth degree; but the term has come to express any remote degree of

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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.

Second cousins. Persons who are related to each other by descending from the same great-grandfather or great grandmother. The children of one's first cousins are his second cousins. These are sometimes called "first cous ins once removed." Cousinage.

See Cosenage.

(Fr. Coutum.) See Custom and usage.

Coustom.

Custom; duty; toll; tribute.

Ikuwt(y)um(i)yey/. (Otherwise spelled "Coustumier" or "Coutumier. " ) In old French law, a collection of customs, unwritten laws, and forms of pro cedure. Two such volumes are of especial importance in juridical history, viz., the Grand Coustumier de Norman die, and the Coutumier de France or Grand Coutumier.

Coustoumier

Couthutlaugh IkuwO;}tlOi .

A person who willingly and knowingly received an outlaw, and cherished or con cealed him; for which offense he underwent the same punishment as the outlaw himself.

Couverture Ikuwvertyur/.

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.

Covenable Ik;)v;}n;}b;}l/kon;}b;}l/.

A French word signify ing convenient or suitable; as convenably endowed. An ciently written "convenable."

Covenant Ik;)v;}n;}nt/.

An agreement, convention, or promise of two or more parties, by deed in writing, signed, and delivered, by which either of the parties pledges himself to the other that something is either done, or shall be done, or shall not be done, or stipulates for the truth of certain facts. At common law, such agreements were required to be under seaL The term is currently used primarily with respect to promises in conveyances or other instruments relating to real estate. In its broadest usage, means any agreement or con tract. The name of a common-law form of action ex contrac tu, which lies for the recovery of damages for breach of a covenant, or contract under seaL General Classification

Covenants may be classified according to several dis tinct principles of division:

Absolute or conditional. An absolute covenant is one which is not qualified or limited by any condition. Affirmative or negative. The former are those in which the party binds himself to the existence of a present state of facts as represented or to the future perform ance of some act; while the latter are those in which the covenantor obliges himself not to do or perform some act.

An "affirmative covenant" is an agreement whereby the covenantor undertakes that something shall be done. City of New York v. Turnpike Development Corp., 36 Misc.2d 704, 233 N.Y.S.2d 887, 891, 892.

Declaratory or obligatory. The former are those which serve to limit or direct uses; while the latter are those which are binding on the party himself. Dependent, concurrent, and independent. Covenants are either dependent, concurrent, or mutual and indepen dent. The first depends on the prior performance of some act or condition, and, until the condition is per formed, the other party is not liable to an action on his covenant. In the second, mutual acts are to be per formed 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. Mutual and independent cove nants 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 dam ages for the injury sustained by breach. 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 perform ance 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.

Disjunctive covenants. Those which are for the perform� ance of one or more of several things at the election of the covenantor or covenantee, as the case may be. 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. 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 ex press) them. An implied covenant is one which may reasonably be inferred from whole agreement and cir cumstances attending its execution. Anderson v. Britt, Ky., 375 S.W.2d 258, 260. Express covenants are also called covenants "in deed," as distinguished from cove nants "in law." 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.

COVENANT Inherent and collateral. The former being such as im mediately affect the particular property, while the latter affect some property collateral thereto or some matter collateral to the grant or lease. 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 conver sant 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 cove nantors together; the latter bind each of them separate ly. 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, but must be either joint or several only. 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. Principal and auxiliary. The former being those which relate directly to the principal matter of the contract entered into between the parties; while auxiliary cove nants are those which do not relate directly to the principal matter of contract between the parties, but to something connected with it. Real. 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 inher ent 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. Transitive or intransitive. The former being those per sonal 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 covenantor himself, and does not pass over to his representative. Other Compound and Descriptive Terms

Continuing covenant. One which indicates or necessar ily 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. Full covenants. As this term is commonly used, it includes: 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.

364

Restrictive covenant.

See that title.

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 enjoy ment," "further assurance," "general warranty," "right to convey," and "against incumbrances." Collectively they are called covenants for title to distinguish them from restrictive covenants. See Covenants for title, be low. Specific Covenants

Covenants against incumbrances. A covenant that there are no incumbrances on the land conveyed. A stipula tion 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. Covenant appurtenant. A covenant which is connected with land of the grantor, and not in gross. A covenant running with the land and binding heirs, executors and assigns of the immediate parties. 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 perfect ing 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. Covenant for possession. A covenant by which the grantee or lessee is granted possession. Covenant for quiet enjoyment. An assurance against the consequences of a defective title, and of any disturbances thereupon. A promise by the landlord or grantor that the tenant or grantee will not be evicted or disturbed by the grantor or a person having a lien or superior title. 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 continu ance of the title transferred to the grantee. They com prise covenants for seisin, for right to convey, against incumbrances, or quiet enjoyment, sometimes for fur ther assurance, and almost always of warranty. Covenant in gross.

Such as do not run with the land.

Covenant not to compete. An agreement, generally part of a contract of employment or a contract to sell a business, in which the covenantor agrees for a specific period of time and within a particular area to refrain from competition with the covenantee. Such covenant restrictions must be reasonable in scope and duration or backed by adequate consideration. Covenant not to sue. A covenant by one who has a right of action at the time of making it against another

COVERT

365

person, by which he agrees not to sue to enforce such right of action. Such covenant does not extinguish a cause of action and does not release other joint tort-fea sors even if it does not specifically reserve rights against them. Van Cleave v. Gamboni Const. Co., 665 P.2d 250, 252, 99 Nev. 544.

Covenant of non-claim. A covenant formerly sometimes employed, particularly in the New England states, and in deeds of extinguishment of ground rents in Pennsyl vania, that neither the vendor, nor his heirs, nor any other person, etc., shall claim any title in the premises conveyed. Covenant of right to convey. An assurance by the cove nantor 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. 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. 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. A covenant is said to run with the land, when not only the original parties or their representa tives, but each successive owner of the land, will be entitled to its benefit, or be liable (as the case may be) to its obligation. Or, in other words, it is so called when either the liability to perform it or the right to take advantage of it passes to the assignee of the land. 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. Essentials of such a covenant are that the grantor and grantee must have intended that the covenant run with the land, the covenant must affect or concern the land with which it runs, and there must be privity of estate between party claiming the benefit and the party who rests under the burden. Greenspan v. Rehberg, 56 Mich.App. 310, 224 N.W.2d 67, 73. 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 is such a covenant. See also Covenants for title, above. Covenant to convey. A covenant by which the covenan tor 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 speci fied 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. Covenant to stand seised. A conveyance adapted to the case where a person seised of land in possession, rever-

sion, or vested remainder, proposes to convey it to his wife, child, or kinsman. In its terms it consists of a covenant by him, in consideration 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 covenan tee; but by that act this use is converted into the legal estate, and the covenant therefore operates as a convey ance of the land to the covenantee. It is now almost obsolete. Covenantee /k�v:m;)ntiy /.

The party to whom a cove

nant is made. Covenantor /k�v;)n;)nt;)r/.

The party who makes a cove

nant. A contraction, in the old books, of the word "convent."

Covent.

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 BI.Comm. 207.

Coventry Act.

To protect by means of insurance; sometimes orally pending issuance of policy. See also Binder; Cov

Cover.

er note.

The right of a buyer, after breach by a seller, to purchase goods in open market in substitution for those due from the seller if such purchase is made in good faith and without unreasonable delay. The buyer may then recover as damages the difference between the cost of cover and the contract price plus any incidental and consequential damages but less expenses saved in conse quence of the seller's breach. V.C.C. § 2-712(1), (2). In insurance, amount and extent of risk contractually covered by insurer. The assumption of risk of occurrence of the event insured against before its occurrence. Continental Ins. Co. v. Paccar, Inc., 26 Wash. App. 850, 614 P.2d 675, 684.

Coverage.

Automatic coverage. In insurance, coverage of addition al property or for other perils by an existing contract without specific request by the insured. A provision in a document which purportedly embraces all eventualities of which the par ties are aware as possibilities.

Cover-all clause.

The phrase "covered into the treasury," as used in acts of Congress and the practice of the Vnited 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. V. S. v. Johnston, 124 V.S. 236, 8 S.Ct. 446, 31 L.Ed. 389.

Cover into.

Written statement by insurance agent that coverage is in effect. Distinguished from binder which is prepared by company. See Binder.

Cover note.

Covert /k�v;)rt/.

Covered, protected, sheltered. ert act is a concealed, not apparent act.

A cov

COVERT BARON Covert baron, or covert de baron Ik�v;:}rt (d;:}) brer;:}n/.

Under the protection of a husband; married. La feme que est covert de baron, the woman which is covert of a husband. Coverture Ik�v;:}rch;:}r/.

The condition or state of a married woman. Sometimes used elliptically to describe the legal disability which formerly existed at common law from a state of coverture whereby the wife could not own property free from the husband's claim or control. Such restrictions were removed by state Married Wom an's Property Acts.

Cover-up. To conceal.

366

Toyota Motor Sales, U.S.A. Inc., 121 Wis.2d 338, 360 N.W.2d 2, 6. Crassus Ikrres;:}s/.

Large; gross; excessive; extreme. Crassa ignorantia Ikrres;:} ign;:}rrensh(iy);:}1 gross igno rance.

Crassa negligentia Ikrres;:} negl;:}jensh(iy);:}/. Gross ne glect; absence of ordinary care and diligence. Crastino Ikrrest;:}now I.

Lat. On the morrow, the day after. In old English law, the return-day of writs; be cause the first day of the term was always some saint's day, and writs were returnable on the day after.

As a crime, the act of concealing or hiding something wrong or criminal. See also Harbor;

Crave.

Misprision of felony.

Craven Ikreyv;:}n/.

Covin Ik�v;:}n/.

A secret conspiracy or agreement be tween two or more persons to injure or defraud another.

Covinous Ik�v;:}n;:}s/.

To ask or demand; as to crave oyer. See Oyer.

In old English law, a word of dis grace and obloquy, pronounced on either champion, in the ancient trial by battle, proving recreant, i.e., yield ing.

Deceitful; fraudulent; having the nature of, or tainted by covin.

Creamer.

Pusillanimity; fear; misbehavior through fear in relation to some duty to be performed.

Creamus Ikriyeym;:}s/.

Cowardice. C.P.

An abbreviation for common pleas.

C.P.A.

Certified Public Accountant.

An abbreviation for curia regis; also for chancery reports.

C.R.

Craft.

Generally, any boat, ship or vessel.

A trade or occupation of the sort requiring skill and training, particularly manual skill combined with a knowledge of the principles of the art. A lso the body of persons pursuing such a calling; a guild. Guile, artful cunning, trickiness. Not a legal term in this sense, though often used in connection with such terms as "fraud" and "artifice." Craft union. A labor union all of whose members do the

same kind of work (i.e. trade) such as plumbing or carpentry for different employers and industries. In bankruptcy, colloquial expression that describes court confirmation of a Bankruptcy Code Chapter 11, 12 or 13 plan, notwithstanding creditor opposition. Matter of U.S. Truck Co., Inc., Bkrtcy.Mich., 47 B.R. 932, 935.

Cram down.

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.

Cranage.

Crank. A term vulgarly applied to a person of eccentric,

A foreign merchant, but generally taken for one who has a stall in a fair or market.

Lat. We create. One of the words by which a corporation in England was formerly created by the king. 1 Bl.Comm. 473.

Creance Ikreyons/.

In French law, a claim; a debt; also

belief, credit, faith. Creancer Ikriy;:}ns;:}r/.

In French law, one who trusts or gives credit; a creditor.

Creansor Ikriy;:}ns;:}r/.

A creditor.

To bring into being; to cause to exist; to pro duce; as, to create a trust, to create a corporation.

Create.

In copyright law, a work is "created" when it is fixed in a copy or phonorecord, for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work. Copyright Act, 17 U.S.C.A. § 1OI.

Created.

Credentials Ikr;:}densh;:}lz/.

Documentary evidence of a person's authority; commonly in the form of letters, licenses or certificates which on their face indicate the authority and capacity of the bearer.

Worthiness of belief; that quality in a witness which renders his evidence worthy of belief. After the competence of a witness is allowed, the consid eration of his credibility arises, and not before. As to the distinction between competency and credibility, see Competency. See also Character; Reputation.

Credibility.

ill-regulated, and unpractical mental habits; an ill-tem pered person.

Credible. Worthy of belief; entitled to credit. See Com

Doctrine which imposes liability upon a manufacturer in a vehicular collision case for design defects which do not cause the initial accident but which cause additional or more severe injuries when the driver or passenger subsequently impacts with the defective interior or exterior of the vehicle. Sumnicht v.

Credible evidence. Evidence to be worthy of credit must not only proceed from a credible source but must, in addition, be "credible" in itself, by which is meant that it shall be so natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe it, and credible testimony is

Crashworthiness.

petency; Character; Reputation.

CREDIT INSURANCE

367 that which meets the test of plausibility. Indiana Metal Products v. N.L.R.B., C.A.Ind., 442 F.2d 46, 52.

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 reli able, not only on account of his good reputation for veracity, but also on account of his intelligence, knowl edge of the circumstances, and disinterested relation to the matter in question. Also one who is competent to testify. Burleson v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019, 1020. Credible witness. One who is competent to give testimo ny in court; also one who is worthy of belief. Burleson v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019, 1020. See Credibility.

The statement in a pleading or affidavit, that one is "credibly informed and verily be lieves" 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.

Credibly informed.

The ability of a business or person to borrow money, or obtain goods on time, in consequence of the favorable opinion held by the particular lender as to solvency and past history of reliability. In re Ford, D.C.Wash., 14 F.2d 848, 849. Confidence in buyer's ability to meet financial obligations at some future time. Time allowed to the buyer of goods by the seller, in which to make payment for them. The correlative of a debt; that is, a debt considered from the creditor's standpoint, or that which is incoming or due to one. 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.

Credit.

Availability of funds from financial institution or from letter of credit. "Credit" means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment. Uniform Consumer Credit Code, Section 1.301(7). In accounting, a credit is a component of a journal entry which increases revenues, liabilities, and equity; and decreases assets and expenses. In taxation, credits reduce the tax liability as comput ed, as opposed to deductions which reduce the taxable income. Examples of tax eredits include; credit for child and dependent care expenses, credit for the elderly or permanently disabled, etc.

See also Confirmed credit; Credit line; Fair Credit Re porting Acts; Installment credit; Investment tax credit; Letter of credit; Notation credit; Open credit; Open-end credit; Revocable credit; Revolving credit; Tax credit. Compare Debit. Bank credit. Money that bank owes or will lend individ ual or person.

Bill of credit. See Bill. Consumer credit. See Consumer credit; Consumer Code; Consumer Credit Protection Act; Consumer sale; Consumer credit transaction; Credit card; Credit Opportunity Act; Fair Credit Billing Act; Fair Reporting Acts; Truth-in-Iending Act.

Credit credit Equal Credit

Credit insurance. See Credit insurance. Extortionate credit. Line of credit.

See Extortion; Loansharking.

See Credit line; Line.

Open credit. See Open credit; Open-end credit. Secured credit. See Secured transaction. An advertisement which aids, pro motes or assists directly or indirectly the extension of credit. Federal and state statutes regulate such adver tising.

Credit advertising.

Credit balance. In accounting, the status of an account

when the sum of the credit entries exceeds the sum of the debit entries. Establishinents which make a business of collecting information relating to the credit, charac ter, responsibility and reputation of individuals and businesses, for the purpose of furnishing the information (i.e. credit reports) to subscribers (i.e. merchants, banks, suppliers, etc.). Practices of credit bureaus are regulat ed by federal (e.g. Fair Credit Reporting Act) and often state statutes. See also Credit rating; Credit report.

Credit bureau.

Credit card. Any card, plate, or other like credit device

existing for the purpose of obtaining money, property, labor or services on credit. The term does not include a note, check, draft, money order pr other like negotiable instrument. Federal (e.g. Consumer Credit Protection Act) and often state statutes regulate the issuance and use of credit cards. A person commits an offense if he uses a credit card for the purpose of obtaining property or services with knowledge that: (1) the card is stolen or forged; or (2) the. card has been revoked or cancelled; or (3) for any other reason his use of the card is unautho rized. Model Penal Code, § 224.6.

Credit card crime.

Credit disclosure. See Annual percentage rate; Consum

er Credit Protection Act; Truth-in-Lending Act.

The alternative to paid. Lynchburg Trust & Savings Bank v. Commissioner of Internal Revenue, C.C.A.4, 68 F.2d 356, 358.

Credited.

Credit foncier Ikreydiy fonsyey I.

A company or corpo ration formed for the purpose of carrying out improve ments, by means of loans and advances on real estate security.

A contract whereby the insurer promises, in consideration of a premium paid, and sub ject to specified conditions as to the persons to whom credit is to be extended, to indemnify the insured, whol ly or in part, against loss that may result from the death, disability, or insolvency of persons to whom he may extend credit within the term of the insurance.

Credit insurance.

CREDIT INSURANCE The requirement of such, as well as the full disclosure of the terms and cost, is regulated by federal and state consumer protection statutes.

Credit life, accident, and health insurance. Term insur ance on lives of debtors, with the creditors of the insured debtor as beneficiary. The amount payable on death of insured debtor is an amount at least sufficient to dis charge debtor's indebtedness; and in event of total per manent disability an amount is payable which is at least sufficient to meet installment payments on debtor's in debtedness as they mature during the period of disabili ty. Superior Life Ins. Co. v. U. S., D.C.S.C., 322 F.Supp. 921, 924. See also Insurance (Credit insurance). In banking and commerce, that amount of money or merchandise which a banker, merchant, or supplier agrees to supply to a person on credit and generally agreed to in advance. See also Line (Line of credit).

Credit line.

In motion pictures, the preliminary statement which gives the names of the players, producer, director, etc. May also refer to similar acknowledgments of contribu tors or assistants in authorship of books, production of plays, or the like. A document used by a seller to inform a buyer that the buyer's account receivable is being credited (reduced) because of errors, returns, or allowances.

Credit memorandum.

Credit mobilier Ikreydiy mowbiylyey I.

A company or association formed for carrying on a banking business or for the construction of public works, building or rail roads, operation of mines, or other such enterprises, by means of loans or advances on the security of personal property.

Creditor. A person to whom a debt is owing by another

person who is the "debtor." 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. 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. 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. In its broad sense the word 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. In statutes the term has various special meanings, dependent upon context, purpose of statute, etc. The term "creditor," within the common-law and stat utes 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, and includes not merely the holder of a fixed and certain present debt, but every one having a

368

right to require the performance of any legal obligation, contract, or guaranty, or a legal right to damages grow ing 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 spe cific performance. Under U.C.C., term includes a general creditor, a secured creditor, a lien creditor and any representative of creditors, including an assignee for the benefit of creditors, a trustee in bankruptcy, a receiver in equity and an executor or administrator of an insolvent debt or's or assignor's estate. U.C.C. § 1-201(12). Under Bankruptcy Code, term includes entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor. Bank ruptcy Code, § 101. "Creditors" subject to Federal Truth in Lending Act are those who regularly extend or arrange for extension to consumers of credit for which a finance charge is required. Garza v. Chicago Health Clubs, Inc., D.C.Ill., 347 F.Supp. 955, 963. Classification

A creditor may be 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.

Attaching creditor. One who has caused an attachment to be issued and levied on property of his debtor. See Attachment.

Certificate creditor. A creditor of a municipal corpora tion who receives a certificate of indebtedness for the amount of his claim, there being no funds on hand to pay him. 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 circumstanc es did not entitle him, thus involving loss to other creditors not in his confidence. 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. Domestic creditor. One who resides in the same state or country in which the debtor has his domicile or his property. Double creditor. See that title. Execution creditor. One who, having recovered a judg ment against the debtor for his debt or claim, has also caused an execution to be issued thereon. See Execution. Foreign 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.

369

CREDIT SALE

Joint creditors. Persons jointly entitled to require satis faction of the same debt or demand. Judgment creditor.

See that title.

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. Creditor whose claim ranks below other credi tors in rights to the debtor's property. For example, a creditor with an unperfected security interest in a prop erty is a junior creditor to one holding a perfected security interest. Lien creditor. A creditor who has acquired a lien on the property involved by attachment, levy or the like and includes an assignee for benefit of creditors from the time of assignment, and a trustee in bankruptcy from the date of the filing of the petition or a receiver in equity from the time of appointment. U.C.C. § 9-301. See also Lien creditor. Preferred creditor.

See that title.

Principal creditor. One whose claim or demand very greatly exceeds the claims of all other creditors in amount is sometimes so called. Secondary creditors. One whose claim is secondary to preferred creditor(s). Secured creditor. See Secured creditor; also, Lien credi tor, above. Single creditor.

See that title.

Subsequent creditor. One whose claim or demand ac crued or came into existence after a given fact or trans action, such as the recording of a deed or mortgage or the execution of a voluntary conveyance. See also Jun ior creditor, above.

process. Sackin v. Kersting, 105 Ariz. 464, 466 P.2d 758. By use of the creditor's bill, a judgment creditor can reach any nonexempt property interest of the debtor that is alienable or assignable under state law. A suit by judgment creditor in equity for purpose of reaching property which cannot be reached by execution at law. 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 enforced in equity. Under rules of civil procedure, such action is simply a civil action in which demand is made for this type of equitable relief because of the merger of law and equity. Fed.R. Civil P. 2. Generic term to describe any right which a creditor has against his debtor. For recovery in bankruptcy, such must be provable. See also Claim.

Creditor's claim.

In bankruptcy, a committee of representative creditors elected (in Chapter 7) or ap pointed (in Chapter 1 1) to consult with the bankruptcy trustee or United States Trustee, and to perform other services in the interest of the represented creditors. Bankruptcy Code, §§ 705, 1102, 1103.

Creditors' committee.

In bankruptcy, first meeting of creditors and equity security holders, at which time a trustee may be elected and the debtor examined under oath. Bankruptcy Code, § 341. See also Meeting of

Creditors' meeting.

creditors. Creditors' suit. See Creditor's bill

suit.

Creditorum appellatione non hi tantum · accipiuntur qui pecuniam crediderunt, sed omnes quibus ex qualibet causa debetur Ikred;}tor;}m rep;}leyshiyowniy

Warrant creditor. A creditor of a municipal corporation to whom is given a municipal warrant for the amount of his claim, because there are no funds in hand to pay it.

non hay trent;}m ;}ksipiy�nt;}r kway p;}kyuwniy;}m kred;}dir;}nt, sed omniyz kwib;}s eks kweyl;}b;}t koz;} d;}biyt;}r/. Under the head of "creditors" are included, not alone those who have lent money, but all to whom from any cause a debt is owing.

Creditor beneficiary. A third person to whom perform

Credit rating. The evaluation of a person's or business'

ance of promise comes in satisfaction of legal duty. A creditor who has rights in a contract made by the debtor and a third person, where the terms of the contract obligate the third person to pay the debt owed to the creditor. The creditor beneficiary can enforce the debt against either party.

ability and past performance in paying debts. General ly established by a credit bureau and used by merchants, suppliers and bankers to determine whether a loan should be granted or a line of credit given. Credit reporting practices are regulated by the federal Fair Credit Reporting Act.

Where performance of a promise in a contract will benefit a person other than the promisee, that person is a creditor beneficiary if no purpose to make a gift appears from the terms of the promise in view of the accompanying circumstances and performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary, or a right of the beneficiary against the promisee which has been barred by the Statute of Limitations or by a discharge in bankruptcy, or which is unenforceable because of the Statute of Frauds. Restatement, Second, Contracts.

Credit report. A document from a credit bureau setting

Equitable proceeding brought to enforce payment of debt out of property or other interest of debtor which cannot be reached by ordinary legal

Creditor's bill or suit.

Black's Law Dictionary 6th Ed.-9

forth a credit rating and pertinent financial data con cerning a person or a company and used by banks, merchants, suppliers and the like in evaluating a credit risk. Credit reporting practices are regulated by the federal Fair Credit Reporting Act. Creditrix Ikred;}triks/.

A female creditor.

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. See also Credit; Tax

Credits.

credit.

A sale in which the buyer is permitted to pay for the goods at a later time, as contrasted with a

Credit sale.

CREDIT SALE

370

cash sale. Any sale with respect to which consumer credit is extended or arranged by the seller. The term includes any contract in the form of a bailment or lease if the bailee or lessee contracts to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the property and services in volved and it is agreed that the bailee or lessee will become, or for no other or for a nominal consideration has the option to become, the owner of the property upon full compliance with his obligations under the contract. See also Installment sale.

Crew. Usually referred to and is primarily thought of as

A document generally given by stores and suppliers when a person returns merchandise and which permits the customer to purchase another item, or re ceive the equivalent in cash or open credit for future purchases, in return for the credit extended by the slip.

Crew list.

Credit slip.

Cooperative association that uses money deposited by a closed group of persons (e.g. fellow em ployees) and lends it out again to persons in the same group at favorable interest notes. Credit unions are commonly regulated by state banking boards or commis sions.

Credit union.

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 sys tem of religious belief. Cummings v. Weinfeld, 177 Misc. 129, 30 N.Y.S.2d 36, 38. A small stream less than a river. 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.

Creek.

The act or practice of reducing a corpse to ashes by means of extreme heat or fire. See also Dead

Cremation.

body. Crementum comitatus Ikr;}ment;}m kom;}teyt;}s/.

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 Ikr;}periy 6ky;}l;}m/.

In Saxon law, to put out an eye; which had a pecuniary punishment of fifty shillings annexed to it.

Crepusculum Ikr;}p�sky;}l;}m/.

Twilight. In the com mon law of burglary, this term 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.

Crescente malitia crescere debet et prena Ikr;}sentiy

m;}lish(iy);} kres;}riy deb;}t et piyn;}/. punishment ought also to increase.

Vice increasing,

A term used in heraldry; it signifies the devices set over a coat of arms. High point of an action or process. Highest or upper edge, prominence, level, or limit.

Crest.

Cretio Ikriysh(iy)ow/.

Lat. In the civil law, a certain number of days allowed an heir to deliberate whether he would take the inheritance or not.

those who are on board and aiding in the navigation; e.g. flight crew, ship's crew. 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. Crew does not have an absolutely unvarying legal significance or any well-defined factual significance. Schantz v. American Dredging Co., C.C.A.Pa., 1 38 F.2d 534, 537. A list of the crew of a vessel or aircraft; one of a ship's or aircraft's papers. This instrument is required by statute and sometimes by treaties. 46 U.S. C.A. §§ 322, 323.

Crier Ikray;}r/.

An officer of a court, who makes procla mations. His principal duties are to announce the open ing 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. An auctioneer (cryer). See also Bailiff.

Criez la peez Ikrayiyz b piys/.

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 attendance to recite or read aloud the concord or agreement between the parties, as to the lands intended to be conveyed. An abbreviation for "criminal conversa tion," denoting adultery.

Crim. Con.

A positive or negative act in violation of penal law; an offense against the State or United States.

Crime.

"Crime" and "misdemeanor", properly speaking, are synonymous terms; though in common usage "crime" is made to denote such offenses as are of a more serious nature. In general, violation of an ordinance is not a crime. A crime may be defined to be any act done in violation of those duties which an individual owes to the commu nity, and for the breach of which the law has provided that the offender shall make satisfaction to the public. . 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, or a combina tion, of the following punishments: (1) death; (2) impris onment; (3) fine; (4) removal from office; or (5) disquali fication to hold and enjoy any office of honor, trust, or profit. While many crimes have their origin at common law, most have been created by statute; and, in many states, such have been codified. In addition, there are both state and federal crimes (as to the latter, see Title 18, U.S.C.A.).

See also Classification of crimes; Compounding crime; Continuing offense; Criminal; Degrees of crime; Elements

371

CRIME

of crime; Federal crimes; Felony; I nchoate crimes; I n stantaneous crime; Lesser included offense; Misdemean or; Offense; Petty offense; Political crime; Vehicular crimes. General Classification

Crimes are classified for various purposes, the princi pal classification being that which divides crimes into felonies and misdemeanors. Other classifications are: (a) crimes which are mala in se versus crimes mala prohibita; (b) infamous crimes versus crimes which are not infamous; (c) crimes involving moral turpitude ver sus those which do not involve moral turpitude; (d) major crimes versus petty crimes; and (e) common law crimes versus statutory crimes.

Capital crime.

Crime punishable by death.

Common law crimes. Such crimes as are punishable by the force of the common law, as distinguished from crimes created by statute. 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. Crime against law of nations. Term which is under stood to include crimes which all nations agree to pun ish such as murder and rape. Crime against nature. Deviate sexual intercourse per os or per anum between human beings who are not hus band and wife and any form of sexual intercourse with an animal. Model Penal Code, § 213.0. Crime of bug gery or sodomy. Crime against property. Term used to describe a crime, the object of which is property as contrasted with per son; e.g. larceny. Crime insurance. See Insurance. Crime of omission. Any offense, the gravamen of which is the failure to act when there is an obligation to act. May amount to manslaughter if the failure is wilful, wanton and reckless. Crime of passion. A crime committed in the heat of passion. See Heat of paSSion. Crime of violence. An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C.A. § 16. Crimes of violence include voluntary manslaughter, murder, rape, mayhem, kidnaping, robbery, burglary or housebreaking in the nighttime, extortion accompanied by threats of violence, assault with a dangerous weapon or assault with intent to commit any offense punishable by imprisonment for more than one year, arson punisha-

ble as a felony, or an attempt or conspiracy to commit any of the foregoing offenses.

Crimes mala in se. Crimes mala in se embrace acts immoral or wrong in themselves, such as burglary, lar ceny, arson, rape, murder, and breaches of peace. Crimes mala prohibita. Crimes mala prohibita embrace things prohibited by statute as infringing on others' rights, though no moral turpitude may attach, and con stituting crimes only because they are so prohibited. Felony. See Felony. Infamous crime. A crime which entails infamy upon one who has committed it. The term "infamous"-i.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 falsi. 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 amend ment 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." Mac kin 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." Whether an offense is infamous depends on the punish ment which may be imposed therefor, not on the punish ment which was imposed. United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 370, 66 L.Ed. 700. Misdemeanor. See Misdemeanor. Organized crime. Term used to describe that form of crime which is the product of groups and organizations as contrasted with the crime planned and committed by individuals without organizational backing; gambling and narcotics are common subjects of organized crime. 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 tam actions and forfeitures im posed 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 involun tary, where a penalty is given, whether recoverable by criminal or civil process. 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. D.W.!. (driving while in toxicated) offenses are sometimes classified as quasi crimes.

CRIME

372

Statutory crimes. Those created by statutes, as distin guished from such as are known to, or cognizable by, the common law. See e.g. U.S.Code, Title 18. White-collar crime. Generally included under this clas sification of crimes are antitrust violations, bribery, computer crime, criminal copyright infringement, envi ronmental crimes, extortion, food and drug violations, government contract fraud, mail and wire fraud, RICO offenses, securities and tax fraud, theft of trade secrets. Multifaceted legislation designed to curb crime by e.g. , legislating new types of crimes, redefining existing crimes, increasing sentences, adding new prosecutors, judges, and prisons, etc. Examples are federal Comprehensive Crime Control Act of 1984; Drug Abuse Act of 1988 (as incorporated in U.S.Code Titles 18 and 21).

Crime Control Acts.

Crimen Ikraym:m/.

Lat. Crime. Also an accusation or

charge of crime.

Crimen lresre majestatis Ikraym;}n liyziy mrej;}s;}teyt;}s/.

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. Crimen lresre majestatis omnia alia crimina excedit quoad prenam Ikraym;}n liyziy mrej;}steyt;}s 6mniy;} ey

liy;} krim;}n;} ;}ksiyd;}t kw6wred piyn;}m/. The crime of treason exceeds all other crimes in its punishment. Crimen omnia ex se nata vitiat Ikraym;}n 6mniy;} eks

Crimen furti Ikraym;}n f�rtay I. The crime or offense of theft. Crimen incendii Ikraym;}n ;}nsendiyay I. 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. Crimen innominatum Ikraym;}n ;}nom;}neyt;}m/. The nameless crime; the crime against nature; sodomy or buggery. Crimen raptus Ikraym;}n rrept;}s/.

inventow, briyviy;} kartresviy konsigneyv;}r;}t/. 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.

The crime of rape.

Crimen roberire Ikraym;}n r;}b�riyiy I. robbery.

The offense of

Flagrans crimen; Locus criminis; Particeps criminis.

See

those titles. Crimen falsi Ikraym;}n f61(t)say/.

Term generally refers to crimes in the nature of perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense which involves some element of deceitfulness, untruthfulness, or falsification bearing on witness' propensity to testify truthfully. Government of Virgin Islands v. Toto, C.A.Virgin Is lands, 529 F.2d 278, 282.

At common law, any crime which rendered the perpe trator incompetent to be a witness, such as forgery, perjury, sobornation of perjury and other crimes affect ing the administration of justice. 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. Crimen falsi dicitur, cum quis illicitus, cui non fuerit ad hrec data auctoritas, de sigillo regis, rapto vel invento, brevia, cartasve consignaverit Ikraym;}n

f6ltsay dis;}t;}r, k�m kwis ;}lis;}t;}s, k(yuw)ay non fyuw;}r;}t red hiyk deyt;} okt6hr;}tres, diy s;}jilow riyj;}s, rreptow vel

siy neyt;} vishiy;}t/. springs from it.

Crime vitiates everything which

trahit personam Ikraym;}n trey(h);}t p;}rs6wn;}m/. 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).

Crimen

Those figures compiled by federal and state agencies showing the incidence of various types of crime on a geographical basis.

Crime statistics.

One who has committed a criminal offense; one who has been legally convicted of a crime; one adjudged guilty of crime. See also Dangerous criminal;

Criminal,. n.

Habitual criminal.

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. Of the nature of or involving a crime.

Criminal, adj.

Criminal act.

Commission of a crime.

Criminal action. Proceeding by which person charged with a crime is brought to trial and either found not guilty or guilty and sentenced. An action, suit, or cause instituted to punish an infraction of the criminal laws. See also I ndictment; Penal action; Prosecution. Criminal anarchy. The doctrine that organized govern ment should be overthrown by force and violence or other unlawful means. The advocacy of such doctrine has been made a felony. Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; 18 U.S.C.A. § 2384. Criminal Appeals Act. Federal Act which allows the United States to appeal to a court of appeals from certain judgments, orders, or rulings of district courts. 18 U.S.C.A. § 3731. Criminal attempt. Crime of a criminal attempt consists of an attempt to commit the crime and some step or overt act towards commission of the crime. State v. Harvill, 106 Ariz. 386, 476 P.2d 841. A substantial step towards a criminal offense with specific intent to com-

CRIMINAL

373 mit that particular crime. A criminal attempt is de fined as an overt act done in pursuance of intent to do a specific thing, tending to the end but falling short of complete accomplishment of it; such overt act must be sufficiently proximate to intended crime to form one of natural series of acts which intent requires for its full execution. Com. v. McCloskey, 234 Pa.Super. 577, 341 A.2d 500, 503. See also Attempt.

Criminal behavior. Conduct which causes any social harm which is defined and made punishable by law. Criminal capacity. Legal qualifications necessary to commit a crime such as voluntariness of the act, age and mental condition. See also Capacity; Insanity. Criminal charge. An accusation of crime, formulated in a written complaint, information, or indictment, and taking shape in a prosecution. Criminal coercion. See Coercion. Criminal conspiracy. An agreement or confederacy of two or more persons to do a criminal or unlawful act or to do a lawful act in an unlawful or criminal manner. In many jurisdictions, an overt act in furtherance of the confederacy is required. See also Conspiracy. Criminal contempt. A crime which consists in the ob struction of judicial duty generally resulting in an act done in the presence of the court; e.g. contumelious conduct directed to the judge or a refusal to answer questions after immunity has been granted. Conduct directed against the majesty of the law or the dignity and authority of the court or judge acting judiciously, whereas a "civil contempt" ordinarily consists in failing to do something ordered to be done by a court in a civil action for the benefit of an opposing party therein. Sullivan v. Sullivan, 16 Ill.App.3d 549, 306 N.E.2d 604, 605. See also Contempt. Criminal conversation. Sexual intercourse of an outsid er with husband or wife, or a breaking down of the covenant of fidelity. Tort action based on adultery, considered in its aspect of a civil injury to the husband or wife entitling him or her to damages; the tort of debauching or seducing of a wife or husband. Often abbreviated to crim. con. Statutes in several states prohibit actions for criminal conversation. See Adultery; Alienation of affections; Heart balm statutes.

Criminal forfeiture. The taking by the government of property because of its involvement in a crime; e.g. an automobile used to smuggle narcotics; gun used in hunt ing without license or out of season. See e.g. 18 V.S.C.A. § 982; 21 V.S.C.A. § 853. See also Confiscate; Forfei ture; Seizure.

Criminal fraud. In taxation, the attempt to evade the payment of lawfully due taxes by willfully filing a false or fraudulent tax return. I.R.S. §§ 7201, 7207. In other contexts, the crime of larceny by false pretenses or larceny by trick. See also Fraud. 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 reck-

less 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. See also Crimi nal negligence, below.

Criminal insanity. See Insanity. Criminal instrumentality rule. Where the wrong is ac complished 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. Includes those consequences which represent the very purpose for which an act is done, regardless of the likelihood of occurrence, or are known to be substantially certain to result, regardless of desire. May be general or specific intent; mens rea. See also Knowingly; Mens rea; Pre meditation; Specific intent.

Criminal jurisdiction. Power of tribunal to hear and dispose of criminal cases. Criminal laws. See Penal code; Penal laws. Criminal libel. Criminal libel is the malicious publica tion of durable defamation. 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. It is a misdemeanor at common law and also under modern statutes unless it has been made a felony which is not common. Four elements are included: (1) def amation, (2) durable, (3) pUblication and (4) malice. It should be noted however that criminal sanctions for defamation of public officials is subject to same constitu tional limitations as for civil actions. Garrison v. State of Louisiana, 379 V.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125. See also Libel. Criminal malversion. A broad category of corrupt offi cial practices. Jimenez v. Aristeguieta, C.A.Fla., 311 F.2d 547, 562. See e.g. Bribery. Criminal mischief. A species of wilful and malicious injury to property made punishable by statutes in most jurisdictions. Criminal motive. Something in the mind or that condi tion of the mind which incites to action or induces action, or gives birth to a purpose. Distinguishable from intent which represents the immediate object in view while motive is the ulterior intent. Criminal negligence. See Criminal gross negligence, above; also, Negligence. Criminal non-support. The wilful and unreasonable failure to support one whom the law requires a person to support (i.e. spouse and children). See Non-support; Support.

CRIMINAL 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 commit ted and punishing the offender; as distinguished from a "civil" proceeding, which is for the redress of a private injury. Strictly, a "criminal proceeding" means some step taken before a court against some person or persons charged with some violation of the criminal law. See also Criminal procedure. Criminal process. Process which issues to compel a person to answer for a crime or misdemeanor; e.g. arrest warrant. See also I ndictment; Information; Pro cess; Warrant.

Criminal prosecution. An action or proceeding institut ed in a proper court on behalf of the public, for the purpose of securing the conviction and punishment of one accused of crime. A proceeding instituted by the state to obtain punishment against the person charged with and found guilty of a public offense; it embraces not only the accusation, whether by indictment or infor mation, and the determination of guilt or innocence, but also, in case of a conviction, the imposition of sentence. State v. Parker, 194 Conn. 650, 485 A.2d 139, 142. Criminal syndicalism. Any doctrine or precept advocat ing, teaching or aiding and abetting the commission of crime of sabotage or unlawful acts of force and violence or unlawful methods of terrorism as a means of accom plishing a change in industrial ownership or control or affecting any political change. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. The advocacy of sabotage, violence, terrorism, or other unlawful methods for revolutionary purposes. See also Syndicalism. Criminal trespass. The offense committed by one who, without license or privilege to do so, enters or surrepti tiously remains in any building or occupied structure. Model Penal Code, § 221.2. Offense is committed when a person without effective consent enters or remains on property or in building of another knowingly or inten tionally or recklessly when he had notice that entry was forbidden or received notice to depart but failed to do so. Day v. State, Tex.Cr.App., 532 S.W.2d 302, 306. Criminalist. One versed in criminal law, one addicted to

criminality, and, also, a psychiatrist dealing with crimi nality. People v. Taylor, 152 CaLApp.2d 29, 312 P.2d 731, 734; Douglas v. State, 42 Ala.App. 314, 163 So.2d 477, 486. See Recidivist. The science of crime detection, based upon the application of chemistry, physics, physiology, psychology, and other sciences. See also Criminology.

Criminalistics.

Criminaliter Ikrim;meyh�t;}r/.

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.

The rendering of an act criminal (e.g. by statutory enactment) and hence punishable by the government in a proceeding in its name.

Criminalization.

374

The network of courts and tribunals which deal with criminal law and its enforce ment.

Criminal justice system.

The substantive criminal law is that law which for the purpose of preventing harm to society, (a) declares what conduct is criminal, and (b) prescribes the punishment to be imposed for such conduct. It includes the definition of specific offenses and general principles of liability. Substantative criminal laws are commonly codified into criminal or penal codes; e.g. U .S.C.A. Title 18, California Penal Code, Model Penal Code. Compare

Criminal law.

Criminal procedure.

The rules of law governing the procedures by which crimes are investigated, prosecuted, adjudicated, and punished. Generic term to describe the network of laws and rules which govern the proce dural administration of criminal justice; e.g. laws and court rules (e.g. Rules of Criminal Procedure) governing arrest, search and seizure, bail, etc. Compare Criminal law. See also Code of criminal procedure.

Criminal procedure.

An accessory after the fact to a felony. Skelly v. U. S., 10th Cir., 76 F.2d 483. One who aids or harbors a felon after the commission of a crime.

Criminal protector.

Statutes in certain jurisdictions require that persons who are convicted felons register with the police so that their presence in the community will be known at all times. Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228. Subversive orga nizations are required to register under 18 U.S.C.A. § 2386.

Criminal registration.

Punishments attached to convic tion of crimes such as fines, restitution, probation and sentences. See also Civil death.

Criminal sanctions.

Federal and state laws enacted by legislative bodies which define, classify, and set forth punishments for specific crimes; e.g. Title 18 of United States Code; Model Penal Code.

Criminal statutes or codes.

Crimina morte extinguuntur Ikrim;}n;} mortiy eks

tiIJgw�nt;}r/ . Crimes are extinguished by death. To charge one with crime; to furnish ground for a criminal prosecution; to implicate, accuse, or expose a person to a criminal charge. A witness cannot be compelled to answer any question which has a tendency to criminate him. See Incriminate; Self-incrimi

Criminate.

nation. Criminology. The study of the nature of, causes of, and

means of dealing with crime. One who decoys and plunders sailors under cover of harboring them.

Crimp.

The word "crippling" is equivalent of words "physical disability" and is defined as to deprive of use of limbs, particularly of leg or foot; to deprive of strength, activity or capability for service or use and to disable.

Crippling.

A crucial point or situation in the course of things; a turning point; a very tense moment; an unstable or crucial time.

Crisis.

CROSS-DEMAND

375 Critical evidence. Material evidence of substantial pro

bative force that could induce a reasonable doubt in the minds of enough jurors to avoid a conviction. Gray v. Rowley, C.A.La., 604 F.2d 382, 383. Critical stage in a criminal proceeding at which accused is entitled to counsel is one in which a defendant's rights may be lost, defenses waived, privi leges claimed or waived, or in which the outcome of the case is otherwise substantially affected. See Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254. Test of "critical stage" of criminal proceeding as it relates to right to counsel is whether proceeding either requires or offers opportunity to take procedural step which will have prejudicial ef fects in later proceedings, or whether events transpire that are likely to prejudice ensuing trial. Miller v. State of S. C., D.C.S.C., 309 F.Supp. 1287, 1290. See also

Critical stage.

Counsel, right to; Custodial interrogation. Crocia Ikrows(h)iy�/.

The crosier, or pastoral staff.

Crociarius Ikrowsiyeriy;)s/.

A cross-bearer, who went

before the prelate. A little close adjoining a dwelling-house, and inclosed for pasture and tillage or any particular use. A small place fenced off in which to keep farm-cattle. The word is now entirely obsolete.

Croft.

Croises IkroyZ;)ZI kroyziyz I .

Pilgrims; so called as wear ing the sign of the cross on their upper garments. The knights of the order of St. John of Jerusalem, created for the defense of the pilgrims.

Croiteir.

A crofter; one holding a croft.

A person given to crooked or fraudulent practic es; a swindler, sharper, thief, forger, or the like. Term 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.

Crook.

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. Products of the soil, as are annually grown, raised, and harvested. Growing crops are considered "goods" under U.C.c. § 2-105(1). Term includes fruit grown on trees, and grass used for pasturage. See also

Crop.

Basic crops; Growing crop. Crop insurance. Cropper.

See Insurance.

See Sharecropper.

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 in 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.

Cross.

As an adjective, the word is applied to various de mands and proceedings which are connected in subject matter, but opposite or contradictory in purpose or ob ject. 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. An action brought by one who is defen dant in a suit against the party who is plaintiff in such suit, or against a co-defendant, upon a cause of action growing out of the same transaction which is there in controversy, whether it be a contract or tort. An inde pendent suit brought by defendant against plaintiff or co-defendant. See also Counterclaim; Cross-claim;

Cross-action.

Cross-complaint.

An appeal by the appellee. In the feder al courts a cross appeal is argued with the initial appeal of the appellant. Fed.R.App.P. 34(d). See also Appeal.

Cross appeal.

Cross-claims against co-parties are gov erned in the federal district courts and in most state trial courts by Rule of Civil Procedure 13(g): "A plead ing may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the origi nal action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant." See also New York C.P.L.R. § 3019(b).

Cross-claim.

For requisite content of cross-claim under Rules of Civil Procedure, see Complaint. See also Cross-complaint; Transaction or occurrence test.

Counterclaim distinguished. "Cross-claims" are litigat ed by parties on the same side of the main litigation, while "counterclaims" are litigated between opposing parties to the principal action. Resource Engineering, Inc. v. Siler, 94 Idaho 935, 500 P.2d 836, 840. Security given by both parties to a contract or undertaking for performance or payment.

Cross collateral.

A defendant or cross-defendant may file a cross-complaint setting forth either or both of the following: (a) Any cause of action he has against any of the parties who filed the complaint against him. (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint, (1) arises out of the same transac tion, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him. Calif. Code of Civil Proc. § 428.10. See also Cross-claim.

Cross-complaint.

Where a person against whom a de mand is made by another, in his turn makes a demand against that other, these mutual demands are called

Cross-demand.

CROSS·DEMAND "cross-demands." A set-off is a familiar example. also Counterclaim; Cross-claim; Cross-complaint. Crossed check.

376

See

See Check.

Errors being assigned by the respondent in a writ of error; the errors assigned on both sides are called "cross-errors."

Cross-errors.

Cross-examination. 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. The examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examina tion of the witness. Generally the scope of examination is limited to matters covered on direct examination and matters affecting the credibility of the witness; though the court may in its discretion permit inquiry into additional matters as if on direct examination. Fed.R. Civil P. 43(b); Fed.Evid.Rule 611. Compare Direct exami nation; Redirect examination.

A portion of a street over which pedestrians may lawfully cross from one side to the other. With reference to railroads, that portion of the right of way covered by intersection with a street or highway. In a broader sense, the term includes embankments con structed as necessary approaches to a railroad track, and approaches or embankments reasonably necessary to enable crossings or bridges to be used. For Farm Crossing, see that title.

Crossing.

Cross interrogatory. A party to an action who has been

interrogated may serve cross questions on all other parties. Fed.R. Civil P. 31(a). Permission or right to use a thing or property given in exchange between two or more par ties. Exchange of licenses by two or more patent hold ers in order that each may use or benefit from the patents of the other.

Cross-licensing.

Under this type of arrangement, the surviving owners of a business agree to buy out the withdrawing owner. Assume, for example, R and S are equal shareholders in T Corpora tion. Under a cross-purchase buy and sell agreement, R and S would contract to purchase the other's interest should that person decide to withdraw from the busi ness.

Cross-purchase buy and sell agreement.

Partnership insurance plan wherein each partner in dividually purchases and maintains enough insurance on the life or lives of other partners to fund the pur chase of the others' equity. See also Buy and sell agree - ment.

Cross remainders are remainders which are so limited after particular estates to two or more persons in several parcels of land, or in several undivided shares in the same parcel of land, that, on the determination of the particular estates in any of the several parcels of undivided shares, they remain over to the other grantees, and the reversioner or ulterior re mainderman is not let in until the determination of all

Cross remainder.

of the particular estates. Hartford Nat. Bank & Trust Co. v. Harvey, 143 Conn. 233, 121 A.2d 276. Crown. The sovereign power and position of a monarch.

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. In English law, criminal prosecutions on behalf of the crown, as representing the public; causes in the criminal courts.

Crown cases.

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 Superseded by criminal division of Court of Appeal. New court, created in 1971 in England and Wales to replace the criminal jurisdiction of the Assize Courts and all the jurisdiction of the Courts of Quarter Sessions, consisting in 90 separate centers. Ap peal lies to it from magistrates' courts, Supreme Court Act, 1981, § 108. Appeal from it lies to the Court of Appeal, Criminal Appeal Act, 1968 § 45, 52.

Crown court.

In England, debts due the crown, which are put, by various statutes, upon a different footing from those due to a subject. Bankruptcy does not dis charge such debts unless Commissioners of the Treasury certify in writing their consent to discharge.

Crown debts.

The demesne lands of the crown. In England and Canada, lands belonging to the sovereign personally or to the government or nation, as distin guished from such as have passed into private owner ship.

Crown lands.

Criminal law in England is sometimes so termed, the crown being always the prosecutor in crimi nal proceedings.

Crown law.

Name for an interest free demand loan, usually from a parent to a child. The borrowed funds are invested and the income from the investment is taxed at the child's rate. This type of loan got its name from Harry Crown of Chicago, who was the first to use it. In 1984, the Supreme Court ruled that the market rate of interest must be imputed on each loan, and treated as a gift subject to gift taxes. See Kiddie tax.

Crown loan.

In England, the criminal side of the former court of king's bench. The king's attorney in this court was called "master of the crown office". Now the Crown Office and Associates' Department of the Central Office of the Supreme Court.

Crown office.

Crown office in chancery. Formerly one of the offices

of the English high court of chancery; later transferred to the high court of justice. The principal official, the clerk of the crown, was an officer of parliament, and of the lord chancellor, in his nonjudicial capacity, rather than an officer of the courts of law.

377

CUI BONO

A paper containing the list of criminal cases, which await the hearing or decision on the Crown side of the Queen's Bench Division.

Crown paper.

Members of the Crown Prosecu tion Service whose duty it is to take over the conduct of all criminal proceedings on behalf of the police. Prose cution of Offenses Act, 1985, § 3(1).

Crown prosecutors.

That jurisdiction of Queen's Bench Divi sion by which it takes jurisdiction of criminal cases.

Crown side.

In England, the solicitor to the trea sury acts, in state prosecutions, as solicitor for the crown in preparing the prosecution. Public prosecutions are now handled either by the Director of Public Prosecu tions or by police or some other public authority.

Crown solicitor.

Cruce signati Ikruwsiy sayneytiy/.

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. A flexible term depending largely on context. In natural state; raw; unrefined; not artificially al tered; unfinished. Vulgar.

Crude.

As ground for divorce, consists of unwarranted and unjustifiable conduct on part of defendant causing other spouse to endure suffer ing and distress, thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. Well ing v. Welling, 144 Ind.App. 182, 245 N.E.2d 173, 176.

Cruel and inhuman treatment.

Cruel and unusual punishment.

See Corporal punish

ment; Punishment.

The intentional and malicious infliction of physical or mental suffering upon living creatures, par ticularly 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; outrage.

Cruelty.

Chiefly used in the law of divorce, in such phrases as "cruel and abusive treatment," "cruel and barbarous treatment," or "cruel and inhuman treatment" (q. v.J. In domestic relations, term includes mental injury as well as physical. Williams v. Williams, 351 Mich. 210, 213, 88 N.W.2d 483, 484. Generally, single act of cruel ty is not sufficient for divorce-there must be course of cruel conduct over period of time, Richardson v. Rich ardson, 258 S.C. 135, 187 S.E.2d 528. This ground for divorce is of limited importance with the enactment by most states of no-fault divorce laws.

See also Legal cruelty; Mental anguish; Mental cruelty. 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. A person commits a misdemeanor if he purposely or recklessly: (1) subjects any animal to cruel mistreat-

ment; or (2) subjects any animal in his custody to cruel neglect; or (3) kills or injures any animal belonging to another without legal privilege or consent of the owner. Model Penal Code, § 250.11.

Cruelty to children. Most jurisdictions have "battered child" statutes in which both emotional and physical injuries are embraced in the term "cruelty." See also Child abuse.

Legal cruelty. See Legal cruelty. Crush. To break by means of pressure. 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. To defeat. To call out aloud; to proclaim; to publish; to sell at auction. A clamor raised in the pursuit of an escap ing felon. See Hue and cry.

Cry.

Cry de pais, or cri de pais Ikray d� peyz/.

The hue and cry raised by the people in ancient times, where a felony had been committed and the constable was absent.

Cryer Ikray�r/.

An auctioneer. One who calls out aloud; one who publishes or proclaims. See Crier.

Crypta Ikript�/.

A chapel or oratory underground, or under a church or cathedral.

C.S.C.

Civil Service Commission.

An abbreviation for cum testamento annexo, in describing a species of administration.

C.T.A.

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." 4 Bl.Comm. 169.

Cucking-stool.

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.

Cuckold.

Cueillette.

A term of French maritime law.

See A

cueillette. ante divortium Ikyuway rentiy d�v6rsh(iy)�m Ik(w)ayO I. (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. 3 Bl.Comm. 183. Abolished in 1833.

Cui

bono Ikyuway b6wnow/k(w)ayO Ik(w)ayO I. For whose good; for whose use or benefit. "Cui bono is ever of great weight in all agreements." Sometimes translat ed, for what good, for what useful purpose.

Cui

CUI IN VITA

378

Cuicunque aliquis quid concedit concedere videtur et id, sine quo res ipsa esse non potuit

Ik(yUw)ayk;}ukwiy (H�kw�s kwid k�nsiyd�t k�nsiyd�riy v�diyt�r et id sayniy kwow riyz ips� esiy non p6tuw�t/. Whoever grants anything to another is supposed to grant that also without which the thing itself would be of no effect. Cui in vita IkyUway �n vayt�/.

(L. Lat. The full phrase was, Cui in vita sua ipsa contradicere non potuit, whom in 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. 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 was rendered obso lete in England by force of 32 Hen. VIII, c. 28, § 6.

Cui jurisdictio data est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari non po test Ik(yuw)ay jur�sdiksh(iy)ow deyt� est, iy� kw6wkwiy

k�nses� esiy v�dent�r, sayniy kwib�s jur�sdiksh(iy)ow ekspl�keray non p6wt�st/ . To whomsoever a jurisdic tion is given, those things also are supposed to be grant ed, without which the jurisdiction cannot be exercised. The grant of jurisdiction implies the grant of all powers necessary to its exercise. Cui jus est donandi, eidem et vendendi et concedendi jus est IkyUway j;}s est d�neenday iyayd�m et v�ndenday

et kons�denday j;}S est/. He who has the right of giving has also the right of selling and granting. Cuilibet in arte sua perito est credendum Ikyuway

lib�t in artiy syUw� p�raytow est kr�dend�m/. Any person skilled in his peculiar art or profession is to be believed [i.e., when he speaks of matters connected with such art]. Credence should be given to one skilled in his peculiar profession.

Cujus est dare, ejus est disponere Ikyuwj�s est deriy,

iyj�s est disp6wn�riy / . Whose it is to give, his it is to dispose; or, "the bestower of a gift has a right to regulate its disposal." Cujus est divisio, alterius est electio IkyUwj�s est

d�vizh(iy)ow olt�riyis est �leksh(iy)ow/. Whichever [of two parties] has the division [of an estate], the choice [of the shares] is the other's. In partition between co parceners, where the division is made by the eldest, the rule in English law is that she shall choose her share last. 2 Bl.Comm. 189. Cujus est dominium ejus est periculum Ikyuwj�s est

d�miniy�m iyj�s est p�riky�l�m/. The risk lies upon the owner of the subject. Cujus est instituere, ejus est abrogare Ikyuwj�s est

inst�tyuw�riy iyj�s est rebr�geriy I. Whose right it is to institute, his right it is to abrogate. Cujus est solum, ejus est usque ad crelum IkyUwj�s est

s6wl�m, iyj�s est ;}skwiy red siyl�m/. Whose is the soil, his it is up to the sky. He who owns the soil, or surface of the ground, owns, or has an exclusive right to, every thing which is upon or above it to an indefinite height. 2 Bl.Comm. 18; 3 Bl.Comm. 217. Cujus est solum, ejus est usque ad crelum et ad inferos Ikyuwj�s est s6wl�m, iyj�s est ;}skwiy red siyl�m

�d red inf�rows/. 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. Cujus juris (i.e., jurisdictionis) est principale, ejus dem juris erit accessorium /kyuwj�s jur�s est

prins�peyliy, iyj;}sd�m jur�s ehr�t reks�s6riy�m/. An accessory matter is subject to the same jurisdiction as its principal.

renunciare

Cujus per errorem dati repetitio est, ejus consulto dati donatio est /kyuwj�s p�r �r6r�m deytay rep�

Ikyuwayl�b�t lays�t juriy prow siy intr�d;}ktow r�n;)nsiyeriy I. Any one may waive or renounce the benefit of a principle or rule of law that exists only for his protection.

tish(iy)ow est, lYJ�S bns;}ltow deytay d�ney sh(iy)ow est/. He who gives a thing by mistake has a right to recover it back; but, if he gives designedly, it is a gift.

Cuilibet licet juri

pro

introducto

Cui licet quod majus, non debet quod minus est non licere Ikyuway lays�t kwod meyj�s, non deb�t kwod

mayn�s est non l�siriy I. 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. Cui pater est populus non habet ille patrem Ikyuway

peyt�r �st p6py�l�s non heyb�t iliy p(Hr�m/. whom the people is father has not a father.

He to

Cuique in sua arte credendum est Ikyuwaykwiy in

s(y)uw� artiy kr�dend�m est/. lieved in his own art.

Everyone is to be be

Cujus est commodum ejus debet esse incommodum

IkyUwj�s est k6m�wd�m lYJ�S deb�t eSlY in k6moo�m/. Whose is the advantage, his also should be the disadvantage.

Cujusque

rei

potissima

pars

est

principium

Ikyuwj;}skwiy riyay p�tis�m� parz est prinsipiy�m/. The chiefest part of everything is the beginning. Culagium Ik�leyjiy�m/.

In old records, the laying up a ship in a dock, in order to be repaired.

Cui de sac Ik;}l d� seek/.

(Fr. the bottom of a sack.) A blind alley; a street which is open at one end only. A street closed at one end. Beckham v. State, 64 Cal. App.2d 487, 149 P.2d 296, 300.

Culpa Ik;}lp�/.

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 of these degrees are precise ly the same as those in our law. This term is to be distinguished from dolus, which means fraud, guile, or deceit.

CUM GRANO SALIS

379 Culpabilis Ik;)lpeyb;)bs/.

Lat. In old English law, guilty. Culpabilis de intrusione, guilty of intrusion. Non culpabilis (abbreviated to non cul.), the plea of "not guilty." See Culprit.

Culpability Ik�lp;)bil;)tiy I.

Blameworthiness. Except in cases of absolute liability, a person's criminal culpability requires a showing that he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense. Model Penal Code, § 2.02(1).

Culpable conduct I k;}lp;)b;)l I .

Blamable; censurable; criminal; at fault; involving the breach of a legal duty or the commission of a fault. That which is deserving of moral blame.

Cultivator.

A cropper.

Cultura Ik;}ltyur;}I .

See Sharecropper.

A parcel of arable land.

Culvertage Ik;}lv;}rt;}j/.

In old English law, a base kind of slavery. The confiscation or forfeiture which takes place when a lord seizes his tenant's estate.

Cum actio fuerit mere criminalis, institui poterit ab initio criminaliter vel civiliter Ik;}m reksh(iy)ow fyuw;}r;}t miriy krim;}neyl;}s, instityuway pot;}r;}t reb ;}nish(iy)ow krim;}neyl;}t;}r vel s;}vil;}t;}r/. When an ac tion is merely criminal, it can be instituted from the beginning either criminally or civilly. Cum adsunt testimonia rerum, quid opus est verbis?

Ik;}m reds;}nt test;}mowniy;} rir;}m, kwid OWp;}s est v;}rb;}s/. When the proofs of facts are present, what need is there of words?

Such conduct normally involves something more than simple negligence and implies conduct which is blama ble, censurable, involving the breach of a legal duty or the commission of a fault. It implies that the act or conduct spoken of is reprehensible or wrong, but not that it involves malice or a guilty purpose. Werner v. Upjohn Co., Inc., C.A.Md., 628 F.2d 848, 856.

Cum confitente sponte mitius est agendum Ik;}m

As to culpable Homicide; Ignorance; Neglect; Negli gence; and Wantonness, see those titles.

konf;}tentiy spontiy mish(iy);}s est ;}j€md;}m/. One con fessing willingly should be dealt with more leniently.

Culpa caret qui scit sed prohibere non potest Ik;}lp;)

krer;)t kway sit sed prowh;}biriy non powt;}st/. clear of blame who knows, but cannot prevent.

He is

Culpa est immiscere se rei ad se non pertinenti Ik;}lp;}

est ;}mis;}riy siy riyay red siy non p�rt;}nentay/. It is a fault for any one to meddle in a matter not pertaining to him. Culpa in contrahendo Ik;}lp;} in kontr;}hendow/.

Term used to describe the liability which attaches to breach of contract, especially a breach by the offeror after the offeree has begun performance in a unilateral contract and is stopped by the offeror before completion of the performance which is also the acceptance of the offer in a unilateral contract. Ik;}lp;} leyt;} dowlow ekw;}p;}reyt;}r/. Gross negligence is held equivalent to intentional wrong.

Culpa lata dolo requiparatur

tenet [teneat] suos auctores Ik;}lp;} ten;}t s(y)uwows oktoriyz/"teniy;)tO I. Misconduct binds [should bind] its own authors. It is a never-failing axiom that every one is accountable only for his own delicts.

Culpa

One accused or charged with commission of crime. Also, commonly used to mean one guilty of a crime or fault.

Culprit.

Blackstone believes this term to be an abbreviation of the old forms of arraignment, whereby, on the prisoner's pleading not guilty, the clerk would respond, "culpabilis, prit", i.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. The ordinary deriva tion is from culpa.

Cum aliquis renunciaverit societati, solvitur societas

Ik;}m rebkwis r;}n�nsiyeyv;}r;}t S;}Say;}teytay, solv;}t;}r S;}Say;}tres/. When any partner renounces the partner ship, the partnership is dissolved.

Cum copula Ik�m kopy;}l;}I .

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 consum mated by sexual connection.

Cum de lucro duorum qureritur, melior est causa possidentis Ik;}m diy l(y)uwkrow dyuwor;}m kwir;}t;}r,

miyliy;}r est koz;} p;}sidiyent;}s/. When the question is as to the gain of two persons, the cause of him who is in possession is the better. Cum dividend Ikyuwm div;}dend/.

Means that when a share of stock is sold after a dividend is declared, the buyer has the right to the dividend; lit., with dividend. See also Dividend (Cumulative dividend).

Cum duo inter se pugnantia reperiuntur in testamen ultimum ratum est Ik;}m d(y)uwow int;}r siy p;}gnrensh(iy);} r;}p;}riy;}nt;}r in test;}mentow, ;}It;}m;}m reyt;}m est/. Where two things repugnant to each other are found in a will, the last shall stand. to,

Cum duo jura concurrunt in una persona requum est ac si essent in duobus Ik;}m d(y)uwow jur;} k;}nk;}r;}nt in yuwn;} p;}rsown;} iykw;}m est rek say es;}nt in d(y)uwowb;}s/. When two rights meet in one person, it is the same as if they were in two persons. Cum grano salis Ik;}m greynow seyl;}s/kum grrenow

srel;}s/. (With a grain of salt.) exaggeration.

With allowance for

Cum in corpore dissentitur, apparet nullam esse ac ceptionem Ik;}m in korp;)riy d;}sent;}t;}r, ;}prer;}t n;}l;}m esiy ;}ksepshiyown;}m/. When there is a disagreement in the substance, it appears that there is no acceptance. Cum in testamento ambigue aut etiam perperam scriptum est benigne interpretari et secundum id

CUM ONERE

380

Dividend on pre ferred stock which, if declared at the end of a particular year, must be paid before any common stock dividend is paid. See also Dividend.

quod credibile est cogitatum credendum est Ik�m in

Cumulative preferred dividend.

test�mEmtow rembigyuwiy ot esh(iy)�m p�rp�r�m skript�m est b�nigniy int;}rpr�teray et s�k�nd�m id kwod kr�dib�liy est koj�teyt�m kr�dEmd�m estI . 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.

Cumulative remedy.

Cum legitimre nuptire factre sunt, patrem liberi se quuntur Ik;}m l�jit�miy n�pshiyiy frektiy s;}nt, pretr�m

lib�ray s�kw�nt�r I. Children born under a legitimate marriage follow the condition of the father. Cum onere Ik;}m 6wn�riy /.

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 pet itor et melior habetur possessoris causa Ik;}m par

d�likt�m est d(y)uw6r�m, semp�r own�reyt�r pet�t�r et miyl(i)y�r h�biyt�r powzes6r�s k6z�/. When both parties are in fault the plaintiff must always fail, and the cause of the person in possession be preferred. Cum pertinentiis Ik;}m p�rt�nEmshiy�s/.

With the ap

purtenances. Cum quod ago non valet ut ago, valeat quantum valere potest /k�m kwod eygow non vrel�t �t eygow,

vreliy�t kw6nt�m v�liriy p6wt�st/. 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.

Lit. with rights; a share of stock sold under conditions which permit the buyer to buy new stock of the issuer in a stated amount.

Cum rights.

Cum testamento annexo Ik;}m test�mentow �neksowI.

L. Lat. With the will annexed. A term applied to administration granted where a testator makes an in complete will, without naming any executors, or where he names incapable persons, or where the executors so named refuse to act. If the executor has died, an administrator de bonis non cum testamento annexo (of the goods not [already] administered upon with the will annexed) is appointed. Often abbreviated d. b. n. c. t. a. Cumulative Ikyumy�l�t�v/.

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. As to cumulative Dividend, Punishment, and Stock, see those titles. Additional or corroborative evi dence to the same point. That which goes to prove what has already been established by other evidence. See also Corroborating evidence;

Cumulative evidence.

Legacies given in addition to a prior legacy, as when one legacy is given in a will and another legacy is given to the same person in a codicil. See also Legacy.

Cumulative legacies.

One which can be committed only by a repetition of acts of the same kind but committed on different days or times.

Cumulative offense.

Cumulative preferred stock.

See Stock.

A remedy created by statute in addition to one which still remains in force. Wulff-Han sen & Co. v. Silvers, Cal.App., 120 P.2d 677, 680. Any sentence which is to take effect after the expiration of a prior sentence; also known as "from and after" sentence. See also Sentence.

Cumulative sentence.

Type of voting in which a stock holder may cast as many votes for directors as he has shares of stock multiplied by the number of directors to be elected. The stockholder may cast all his votes for one or more but fewer than all the directors on the slate, and hence, minority representation is promoted. It is a method of voting that allows substantial minority share holders to obtain representation on the board of di rectors. Cumulative voting is required under the corpo rate laws of some states, while in most states such voting can be included or expressly excluded at the option of the corporation in its articles of incorporation. See, e.g., Rev.Model Bus.Corp. Act § 7.28. Compare

Cumulative voting.

Noncumulative voting.

A system of minority representation which is used for the election of members of the lower house of the Illinois legislature. Each voter has three votes which he may lump together on one candidate or distribute among two or three candidates as he chooses. Cunades Ikuwnaoes/.

In Spanish law, affinity; alli ance; relation by marriage.

Cuneator Ikyuwniyeyd�rl Lat. Ikyuwniyeyt�r/.

er. Cuneare Ikyuwniyeriy/, to coin. Ikyuwniy�s/, the die with which to coin. Ikyuwniyeyt�/, coined.

A coin Cuneus Cuneata

Cunnilingus Ik;}n�liIJg�sl .

An act of sex committed with the mouth and the female sexual organ.

Cur.

A common abbreviation of curia.

Cura /kyur�/.

Lat. Care; charge; oversight; guardian ship. In the civil law a species of guardianship which commenced at the age of puberty (when the guardian ship called "tutela" expired), and continued to the com pletion of the twenty-fifth year.

Curagulos /kyureygy�l�s/.

One who takes care of a

thing. Curate Ikyur�t/.

In ecclesiastical law, 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 Eng lish church, who represents the proper incumbent; be ing regularly employed either to serve in his absence or as his assistant, as the case may be. He may be tempo rary or stipendiary or perpetual.

Curateur Ikyuratyur I.

In French law, a person charged with supervising the administration of the affairs of an

CURIA

38 1

emancipated minor, gIvmg him advice, and assisting him in the important acts of such administration. Curatio Iky;m:�yshow/.

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.

Curative Ikyur::lt::lv/.

Intended to cure (that is, to obvi ate the ordinary legal effects or consequences of) defects, errors, omissions or irregularities. The word is defined as relating to, or employed in, the cure of diseases; tending to cure; a remedy.

Curative admissibility of evidence. The doctrine of "cur ative admissibility" allows evidence which is otherwise inadmissible to be presented because similar evidence has been introduced by the adverse party. People v. Wilbert, 15 Ill.App.3d 974, 305 N.E.2d 173, 179. In some jurisdictions, an opponent may counter or answer evi dence which has been admitted without objection though otherwise inadmissible to cure the effect of such evidence. This rule is not of universal application or acceptance. Curative statute. A law, retrospective in effect, which is designed to remedy some legal defect in previous trans actions. A form of retrospective legislation which reaches back into the past to operate upon past events, acts or transactions in order to correct errors and irreg ularities and to render valid and effective many at tempted acts which would otherwise be ineffective for the purpose intended. As applied to conveyances they supply one or more ingredients of a legal act which the parties intended to perform but which they failed to accomplish completely or which they executed only im perfectly. Curator Iky�r::lt::lr/kY::lreyt::lr/.

A temporary guardian or conservator appointed by the court to care for the prop erty or person or both of an incompetent, spendthrift, or a minor. One in charge of museum, art gallery, or the like. In Louisiana, a person appointed to take care of the estate of an absentee.

Curator ad hoc IkY::lreyt::lr red h6k/. A guardian or other person appointed to take charge or care of a single matter or transaction; a special guardian. Curator ad litem IkY::lreyt::lr ;}d layd::lm/. the suit or action.

Guardian for

Curator bonis IkY::lreyt::lr b6wn::ls/. In the civil law, a guardian or trustee appointed to take care of property in certain cases; as for the benefit of creditors. The office of a curator or guardian. Com pare Tutorship.

Curatorship.

Curatrix I kY::lreytr::lks I .

A woman who has been ap pointed to the office of curator; a female guardian.

Curatus non habet titulum IkY::lreyt::ls non heyb::lt

titY::lI::lm/. A curate has no title [to tithes].

The act of healing; restoration to health from disease, or to soundness after injury.

Cure.

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 contin ues. Calmar S. S. Corporation v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 653, 82 L.Ed. 993. See also Maintenance and cure.

The right of a seller under U.C.C. to correct a non-con forming delivery of goods to buyer within the contract period. § 2-508. Term as used in Chapter 13 bankruptcy proceedings (adjustment of debts of an individual) refers to provision in repayment plan for "curing" defaults in debt obli gations. Bankruptcy Code § 1322(b)(3). In common law pleading, the rectifica tion or rendering nugatory of a defect in the pleadings by the rendition of a verdict; the court presuming after a verdict, that the particular thing omitted or defective ly stated in the pleadings was duly proved at the trial. This function is served by Rule of Civil Procedure 15 which permits amendment of pleadings to conform to the evidence.

Cure by verdict.

In ecclesiastical law, the ecclesiastical or spiritual charge of a parish, including the usual and regular duties of a minister in charge.

Cure of souls.

A law (commonly an ordinance) which imposes on people (particularly children) the obligation to re move themselves from the streets on or before a certain time of night.

Curfew.

An institution supposed to have been introduced into England by order of William the Conqueror, which con sisted in the ringing of a bell or bells at eight o'clock at night, at which signal the people were required to extin guish 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 Wil liam 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. It was doubtless intend ed as a precaution against fires, which were very fre quent and destructive when most houses were built of wood. It appears to have met with so much opposition that in 1 103 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 then as a still subsisting custom. Shakespeare frequently refers to it in the same sense. Curia IkyuriY::l/.

In old European law, a court. The palace, household, or retinue of a sovereign. A judicial

CURIA

382

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. A lord's court held in his manor. The tenants who did suit and service at the lord's court. A manse. In Roman law, a division of the Roman people, said to have been made by Romulus. They were divided into three tribes, and each tribe into ten curire, making thirty curire in all. 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 decu riones assembled. See Decurio. Curia admiralitatis

/kyuriy� ,Mm�r,H�teyt�s/.

The

court of admiralty. Curia advisari vult /kyuriy� redv�seray v�lt/.

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 ques tion, 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 /kyuriy� b�r6wn�s;ob�r6w

n�m/. In old English law, a court-baron. The court of chancery is the

Curia christianitatis /kyUriy� kristiyren�teyt�s/.

The

ecclesiastical court. Curia claudenda /kyuriy� klodend�/.

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 plain tiffs. Now obsolete.

Curia comitatus /kyuriy� kom�teyt�s/.

The county

court (q. v.). Curia domini /kyuriy� d6m�nay/.

In old English law, the lord's court, house, or hall, where all the tenants met at the time of keeping court.

Curia magna /kyuriy� mregn�/.

In old English law, the great court; one of the ancient names of parliament.

Curia majoris /kyuriy� m�j6r�s/.

In old English law,

the mayor's court.

Curia persona: /kyuriy� p�rs6wniy/ .

In old records, a

parsonage-house, or manse. Curia regis /kyuriy� riyj�s/.

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).

Removal of defects from land title which render such unmarketable. "Clearing", "curing", "straightening out", or "removing cloud from" title de notes acts or proceedings necessary to render title mar ketable. See Action to quiet title.

Curing title.

Curiosa et captiosa interpretatio in lege reprobatur

/kyuriy6ws� et krepshiy6ws� int;}rpr�teysh(iy)ow in liyjiy repr�beyt�r/. A curious [overnice or subtle] and cap tious interpretation is reprobated in law. Curnock /k�rn�k/.

In old English law, a measure con taining four bushels or half a quarter of corn. 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. See also Blocked currency; Comptroller of Currency; Cur

Currency.

rent money; Legal tender.

Running; now in transit; present existence; now in progress; whatever is at present in course of passage, as "the current month." American Fruit Growers v. United States, C.C.A.Cal., 105 F.2d 722, 726. Most recent; up-to-date. A continuous movement in the same direction, as a fluid 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 or 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.

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. Kel ler, C.C.A., 59 F.2d 499, 501 . See e.g. usages that follow below. An open, running, or unsettled ac count between two parties.

Current account.

Curia militum /kyuriy� mn�t�m/.

A court so called, anciently held at Carisbrook Castle, in the Isle of Wight.

Curia palatii /kyuriy� p�leyshiyay/ .

the palace court. 101 .

In old English law, the court of piedpoudre or pie pouders. See Court of Piepoudre.

Current.

Curia cancellaria: officina justitia: /kyuriy� krens�leri

yiy of�sayn� j�stishiyiy/. workshop of justice.

Curia pedis pulverizati /kyuriy� piyd�s p;}lv�r�zeytay/.

In old English law, It was abolished by 12 & 13 Vict., G.

Curia parliamenti suis propriis

legibus

subsistit

/kyuriy� parl(y)�mentay syuw�s pr6wpriy�s liyj�b�s s�bsist�t/. The court of parliament is governed by its own laws.

Any property that will be or could be converted into cash in the normal operation of a busi ness or at an earlier date, usually within one year. Short-term assets; e.g. cash, accounts receivable, inven tory.

Current assets.

Ordinary, regular, recurring, and continuing expenditures for the maintenance of proper ty, the carrying on of a business, an office, municipal government, etc.

Current expenses.

CURTESY

383 Cash and other assets readily convert ible into cash. Money which circulates as legal tender. Formerly, this phrase meant gold or silver, or something equivalent thereto, and convertible at pleasure into coin money. Bull v. First National Bank, 123 U.S. 105, 8 S.Ct. 62, 31 L.Ed. 97. See Current money.

Current funds.

Income which is due within the present accounting period.

Current income.

An obligation that will be paid in the ordinary course of a business or within one year. A current liability is paid by expending a current asset. The phrase "current liability" carries with it the idea of a liability that is presently enforceable. Warren Co. v. Commissioner of Internal Revenue, C.A.Ga., 135 F.2d 679, 684, 685.

Current liabilities.

Current maintenance. The expense occasioned in keep

ing the physical property in the condition required for continued use during its service life. Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151, 54 S.Ct. 658, 78 L.Ed. 1 182.

The set of studies or courses for a particu lar period, designated by a school or branch of a school.

Curriculum.

Currit quatuor pedibus /k�hr;}t kwotuw;}r pM;}b;}s/.

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."

Currit

tempus

contra

desides

sui juris

jur;}s kontem(p)toriyz/. Time runs against the slothful and those who neglect their rights. Malediction; imprecation; execration; pro fane words intended to convey hate and to invoke harm; swearing.

Cursing.

Cursitor baron /k�rs;}t;}r brer;}n/.

In old English law, 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.

Current market value.

Cursitors /k�rs;}t;}rz/.

Current money. The currency of the country; whatever

Cursory examination /k�rs(;})riy ;}gzrem;}neysh;}n/.

The value of an asset which may be realized by liquidation within the present ac counting period. Present value which may be realized in an arms length transaction between a willing buyer and a willing seller. See also Fair market value.

is intended to and does actually circulate as currency; every species of coin or currency. In this phrase the adjective "current" is not synonymous with "convert ible". It is employed to describe money which passes from hand to hand, from person to person, and circu lates through the community, and is generally received. Money is current which is received as money in the common business transactions, and is the common medi um in barter and trade. See also Currency; Legal tender. Such as are presently enforceable and not past due. Naylor v. Gutteridge, Tex.Civ.App., 430 S.W.2d 726, 733. See also Current liabilities.

Current obligations.

This term means the same as "market value", "market price", "going price", the price that runs or flows with the market. See also Current market

Current price.

value; Fair market value. Current revenues. Current value.

See Current income.

See Current market value; Fair market

value.

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 or deferred. See also Minimum wage.

Current wages.

The year now running. Ordinarily, a calendar year in which the event under discussion took place; though the current fiscal year of a business may run from JUly 1st to June 30th, or some other twelve month period.

Current year.

con

temptores /k�r;}t temp;}S kontr;} diys;}diyz et syuway

In old English law, 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.

Cursor /k�rs;}r/ .

An inferior officer of the papal court.

An inspection for defects visible or ascertainable by ordi nary examination; contrasted from a thorough examina tion.

Cursus curiee est lex curlee /k�rs;}s kyu.riyiy est leks

kyuriyiy/ . court.

The practice of the court is the law of the

To cut off the end or any part of; hence to shorten, abridge, diminish, lessen, or reduce; and term has no such meaning as abolish. State v. Edwards, 207 La. 506, 21 So.2d 624, 625.

Curtail.

Curtesy /k�rt;}siy /.

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.

In some jurisdictions, there is no requirement that issue be born of the union. This estate has gradually lost much of its former value and now in some jurisdic tions it attaches only to the real estate which the wife owns at death, rather than to the real estate owned by the wife during the marriage, while in most states it has been abolished or otherwise materially altered. . See also Dower.

Initiate and consummate. Curtesy initiate is the inter est 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

384

curtesy consummate." Hopper v. Gurtman, 126 N.J. 263, 18 A.2d 245, 246, 250. Curtilage Ik;)rt;:)l;:)j /.

A word derived from the Latin cohors (a place enclosed around a yard) and the old French cortilliage or courtillage which today has been corrupted into court-yard. Originally, it referred to the land and outbuildings immediately adjacent to a castle that were in turn surrounded by a high stone wall; today, its meaning has been extended to include any land or building immediately adjacent to a dwelling, and usually it is enclosed some way by a fence or shrubs. V.S v. Romano, D.C.Pa., 388 F.Supp. 101, 104. For search and seizure purposes, includes those out buildings which are directly and intimately connected with the habitation and in proximity thereto and the land or grounds surrounding the dwelling which are necessary and convenient and habitually used for family purposes and carrying on domestic employment. State v. Hanson, 1 13 N.H. 689, 313 A.2d 730, 732.

Curtiles terrre Ik;:)rbiyliyz tehriy/.

In old English law,

court lands. See Court lands. Curtillium Ik;:)rtil(i)y;:)m/.

A curtilage (q. v.); the area or space within the inclosure of a dwellinghouse.

Curtis I k;)rt;:)s I .

A garden; a space about a house; a house, or manor; a court, or palace; a court of justice; a nobleman's residence. Ik;)st;:)/, custagium I kesteyj(iy);:)m I , custantia Ik;)strensh(iy);:)/. Costs.

Custa

custode amovendo Ik;)st;:)diy ,edm;:)tendow, k;)st;:)diy eym;:)vendow/. Writs for the ad mitting and removing of guardians.

Custode admittendo,

Custodes Ik;:)stowdiyz/.

In Roman law, guardians; ob servers; inspectors. Persons who acted as inspectors of elections, and who counted the votes given. In old English law, keepers; guardians; conservators.

Custodes libertatis anglire auctoritate parliamenti

Ik;:)stowdiyz lib;:)rteyt;:)s oktor;:)teytiy rel)gliyiy parl(y);:)mentay I. The style in which writs and all judi cial processes were made out during the great revolu tion, from the execution of King Charles I, till Oliver Cromwell was declared protector. Custodes pacis Ik;:)stowdiyz peys;:)sl.

peace.

Guardians of the

1 BI.Comm. 349.

An account established on behalf of someone else. For example, when a parent opens an account for a minor child, or when a son or daughter opens and controls a bank account of an infirm parent.

Custodial account.

Custodial arrest. Confinement or detention by police or

government authorities during which a person is enti tled to certain warnings as to his rights when ques tioned. Miranda v. Arizona, 384 V.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See Custodial interrogation. Custodia legis Ik;:)stowdiy;:) liyj;:)sl.

In the custody of the law. Doctrine of "custodia legis" provides that when personal property is repossessed under writ of replevin, property is considered to be in custody of the court,

though actual possession may be in either of the parties to the replevin action, and that property remains in custody of court until judgment in replevin action final ly determines whether replevining party or prior holder is entitled to possession. Brunswick Corp. v. J & P, Inc., C.A.Okl., 424 F.2d 100, 102. This doctrine is nothing more than a practical "first come, first serve" method of resolving jurisdictional disputes between two courts with concurrent jurisdiction, and, under such doctrine, court that first secures custody of property administers it. Coastal Production Credit Ass'n v. Oil Screw "Santee", D.C.Ga., 51 B.R. 1018, 1020. Custodial interrogation. Custodial interrogation, with

in Miranda rule requiring that defendant be advised of his constitutional rights, means questioning initiated by law enforcement officers after person has been taken into custody or otherwise deprived of his freedom in any significant way; custody can occur without formality of arrest and in areas other than in police station. Mi randa v. Arizona, 384 V.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Brewer v. Williams, 430 V.S. 387, 97 S.Ct. 1232. See I nterrogation; Miranda Rule. Custodiam lease Ik;:)stowdiy;:)m liysl.

In old English law, a grant from the crown under the exchequer seal, by which the custody of lands, etc., seised in the king's hands, was demised or committed to some person as custodee or lessee thereof. General term to describe person or financial institution that has charge or custody of property, secu rities, papers, assets, etc.

Custodian.

In bankruptcy proceedings, refers to a third party (e.g. receiver or trustee) acting under mandatory authority who takes charge of debtor's assets for the benefit of debtor's creditors as a whole. In re Cash Currency Exchange, Inc., D.C.IlI., 37 B.R. 617, 627. See Bankrupt cy Code § 101 (11 V.S.C.A.). The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preserva tion or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, abso lute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man's person by virtue of lawful process or authority.

Custody.

The term is very elastic and may mean actual impris onment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Within statute requiring that petitioner be "in custody" to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liber ty. V. S. ex reI. Wirtz v. Sheehan, D.C.Wis., 319 F.Supp. 146, 147. Accordingly, persons on probation or parole or released on bail or on own recognizance have been held to be "in custody" for purposes of habeas corpus proceed ings.

CUSTOMARY FREEHOLD

385

See Chain of custody; Custodial interrogation; Custody of children; In custody; Pare mal Kidnapping Prevention Act; Protective custody. A type of agency account in which the custodian has the obligation to preserve and safe keep the property entrusted to him for his principal.

Custody account.

The care, control and mainte nance of a child which may be awarded by a court to one of the parents as in a divorce or separation proceeding. See also Guardianship; Parental Kidnapping Prevention

Custody of children.

Act.

Divided custody. Divided custody is where child lives with each parent part of the year with reciprocal visita tion privileges; in divided custody, parent with whom child is living has complete control over child during that period. In re Marriage of Ginsberg, Ind.App., 425 N .E.2d 656, 658. Joint custody. Joint custody involves both parents shar ing responsibility and authority with respect to the children; it may involve joint "legal" custody and joint "physical" custody. In re Marriage of Ginsberg, Ind. App., 425 N.E.2d 656, 658. Such includes physical shar ing of child in addition to both parents participating in decisions affecting child's life, e.g., education, medical problems, recreation, etc.; "joint custody" does not mean fifty-fifty sharing of time, since each case depends on child's age, parent's availability and desires, and other factors. Plemer v. Plemer, La.App. 4 Cir., 436 So.2d 1348, 1349. Temporary custody. Awarding of custody of a child to a parent temporarily, pending the outcome of a separation or divorce action. The care, control and maintenance of a child which may be awarded by a court to one of the parents as in a divorce or separation proceeding.

Uniform Child Custody Jurisdiction Act. A uniform law adopted in all states, cf. N.Y. McKinney's Domestic Relations Law, §§ 75-a to 75-z, to deal with multi-state child custody and visitation disputes. Enacted in part to deter parental kidnapping, it generally recognizes juris diction in a child's "home state." 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. See Forfeiture; Seizure.

Custody of the law.

Term generally implies habitual practice or course of action that characteristically is repeated in like circumstances. Jones v. City of Chicago, C.A.7 Ill., 787 F.2d 200, 204. See also Custom and usage.

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. It results from a long series of actions, constantly repeated, which have, by such repetition and by uninterrupted acquiescence,

Custom and usage.

acquired the force of a tacit and common consent. Louisville & N. R. Co. v. Reverman, 243 Ky. 702, 49 S.W.2d 558, 560. An habitual or customary practice, more or less widespread, which prevails within a geo graphical or sociological area; usage is a course of conduct based on a series of actual occurrences. Corbin Dykes Elec. Co. v. Burr, 18 Ariz.App. 101, 500 P.2d 632, 634. Parol evidence rule does not bar evidence of custom or usage to explain or supplement a contract or memoran dum of the parties. U.C.C. § 2-203.

Classification. Customs are general, local or particular. General customs are such as prevail throughout a coun try and become the law of that country, and their existence is to be determined by the court. Or as applied to usages of trade and business, a general cus tom 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. Local customs are such as prevail only in some particular district or locality, or in some city, county, or town. Particular customs are nearly the same, being such as affect only the inhab itants of some particular district. Usage distinguished. "Usage" is a repetition of acts, and differs from "custom" in that the latter is the law or general rule which arises from such repetition; while there may be usage without custom, there cannot be a custom without a usage accompanying or preceding it. U. S. for Use of E & R Const. Co., Inc. v. Guy H. James Const. Co., D.C.Tenn., 390 F.Supp. 1 193, 1209. See also Usage.

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.

Customarily.

According to custom or usage; founded on, or growing out of, or dependent on, a custom (q. v.); ordinary; usual; common.

Customary.

Customary court-baron.

See Court-baron.

Due diligence according to law ful, reasonable and well-known custom of port or ports involved. Context and conditions existing or contem plated will, of course, affect the meaning of the phrase. Taisho Kaiun Kabushiki Kaisha v. Gano Moore Co., D.C.Del., 14 F.2d 985, 986.

Customary dispatch.

Estates which owe their origin and existence to the custom of the manor in which they are held. 2 Bl.Comm. 149.

Customary estates.

In old 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.

Customary freehold.

CUSTOMARY INTERPRETATION Customary interpretation.

386

See I nterpretation.

Customary tenants.

Tenants holding by custom of the

manor. Custom duties.

See Customs duties.

One who regularly or repeatedly makes pur chases of, or has business dealings with, a tradesman or business. 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. A buyer, purchaser, consumer or patron.

Customer.

In banking, any person having an account with a bank or for whom a bank has agreed to collect items and includes a bank carrying an account with another bank. U.C.C. § 4-104(e). As to letters of credit, a buyer or other person who causes an issuer to issue credit or a bank which procures issuance or confirmation on behalf of that bank's customer. U.C.C. § 5-103(g). This term as used in statement of claim on fire policy referring to merchandise destroyed as "customers' goods," in its ordinary sense, means goods belonging to insured's customers in his custody as a bailee for the purpose of his trade.

Customers' goods.

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 employ ee of a brokerage house who solicits or processes orders from the investing public for the purchase and sale of commodities and securities to be executed upon various commodities and securities exchanges. Such persons also give investment advice to customers about the pur chase and sale of securities. Clothier v. Beane, 187 Ok!. 693, 105 P.2d 752, 756.

Customers' man.

Custome

Ik�st;} sehr;} prayz(iy) Custom shall be taken [is to be construed]

serra prise stricte

strikt(iy)I . strictly.

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 re ceived; and where ships are cleared out, etc. A public establishment for the inspection and assessment of duties on imported goods. See also Bureau of Customs·

Custom-house.

Customs broker; Customs Service.

One whose occupation it is, as an agent, to arrange entries and other custom-house papers, or transact business, at any port of entry, relat ing to the importation or exportation of goods, wares, or merchandise. A person authorized by the commission ers of customs to act for parties, at their option, in the entry or clearance of ships and the transaction of gener al business.

Custom-house broker.

This term is usually applied to those taxes which are payable upon goods and merchandise import ed or exported. Pollock v. Farmer's Loan & Trust Co., 158 U.S. 601, 15 S.Ct. 912, 39 L.Ed. 1108. The duties, toll, tribute, or tariff payable upon merchandise export ed or imported. Federal agency responsible for assess ing imported goods collecting duties. See 19 U.S.C.A. See also Customs duties; Custom-house; Customs Ser

Customs.

Such as are due by ancient cus tom or prescription only.

Customary services.

vice; Tariff.

This court was established in 1929 under Article III of the Constitution of the United States as successor to the United States Court of Customs Appeals. The Court was abolished by the Federal Courts Improvement Act of 1982. Matters formerly handled by this Court are now under the jurisdiction of the United States Court of Appeals for the Federal Circuit. See Courts of Appeals, U.S. See also Court of International Trade.

Customs and Patent Appeals Court.

Licensed agent or broker whose func tion is to handle the process of clearing goods through customs.

Customs broker.

Customs Court. A court created in 1890 as the Board of

United States General Appraisers and given this name in 1926. The name of the Court was changed in 1980 to the Court of International Trade. See that Court. Customs duties. Taxes on the importation and exporta

tion of commodities, merchandise and other goods. The tariff or tax assessed upon merchandise, imported from, or exported to a foreign country. See 19 U.S.C.A. Tax levied by federal government on goods shipped into U.S., though in other countries it may include export taxes as well. See also Customs; Tariff. Customs House.

See Custom-house; Customs Service.

The United States Customs Service collects the revenue from imports and enforces customs and related laws and also administers the Tariff Act of 1930, as amended, and other customs laws. Some of the responsibilities which the Customs Service is specifically charged with are as follows: properly assessing and collecting customs duties, excise taxes, fees, and penal ties due on imported merchandise; interdicting and seizing contraband, including narcotics and illegal drugs; processing persons, carriers, cargo, and mail into and out of the United States; administering certain navigation laws; detecting and apprehending persons engaged in fraudulent practices designed to circumvent customs and related laws; protecting American business and labor by enforcing statutes and regulations such as the Anti-dumping Act; countervailing duty; copyright, patent, and trademark provisions; quotas; and marking requirements for imported merchandise. See also Bu

Customs Service.

reau of Customs; Custom-house.

Lat. A custodian, guard, keeper, or warden; a magistrate.

Custos Ik�st;}s/.

In England, the keeper of the writs. A principal clerk belonging to the courts of queen's bench and common pleas, whose office

Custos brevium Ik�st;}s briyviy;}m/.

CY·PRES

387

it was to keep the writs returnable into those courts. The office was abolished by 1 Wm. IV, c. 5. Custos ferarum Ik�st;}s f;}rer;}m/.

A gamekeeper.

Custos horrei regii Ik�st;}s hohriyay riyjiyay I.

In old English law, protector of the royal granary. 2 Bl.Comm. 394.

Custos maris Ik�st;}s mrer;}s/.

In old English law, ward en of the sea. The title of a high naval officer among the Saxons and after the Conquest, corresponding with admiral.

Custos morum Ik�st;}s mor;}m/.

als.

The guardian of mor The court of queen's bench has been so styled.

Custos placitorum coronre Ik�st;}s plres;}tor;}m k;}row

niy/. In old English law, keeper of the pleas of the crown. Cowell supposes this office to have been the same with the custos rotulorum. But it seems rather to have been another name for "coroner." Custos rotulorum Ik�st;}s roty;}lor;}m/.

Keeper of the rolls. An officer in England who had the custody of the rolls or records of the sessions of the peace, and also of the commission of the peace itself. He was always a justice of the quorum in the county where appointed and was the principal civil officer in the county. 1 Bl.Comm. 349; 4 Bl.Comm. 272.

Custos spiritualium Ik�st;}s spir;}tyuweyliy;}m/.

In Eng lish ecclesiastical law, keeper of the spiritualities. He who exercised the spiritual jurisdiction of a diocese during the vacancy of the see.

Custos statum hreredis in custodia existentis melior em, non deteriorem, facere potest Ik�st;}s steyt;}m h;}riyd;}s in k;}stowdiy;} egz;}stent;}s miyliyor;}m, non d;}tiriyor;}m, feys;}riy powt;}st/. A guardian can make the estate of an existing heir under his guardianship better, not worse. Custos temporalium Ik�st;}s temp;}reyliy;}m/.

In Eng lish 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 excheq uer.

Custos terrre Ik�st;}s tehriy/.

In old English law, guardi an, warden, or keeper of the land.

Custuma antiqua sive magna Ik�sty;}m;} rentaykw;} say

viy mregn;} I . (Lat. Ancient or great duties.) In old English law, 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 Ik�sty;}m;} parv;} et nowv;} I .

(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.

To penetrate, separate or lacerate as with a sharp instrument. To shorten or reduce in content, time or amount. To divide into parts or segments. One's share of something.

Cut.

Cuth, couth IkuwOI.

Sax. Known, knowing. unknown. See Couthutlaugh; Uncuth.

Cuthred Ik�Or;}d/.

Uncuth,

A knowing or skillful counsellor.

Land which has been logged; which desired timber has been removed.

Cut-over land.

from

Cutpurse Ik�tp�rs/.

One who steals by the method of cutting purses; a common practice in old England when men wore their purses at their girdles, as was once the custom.

Cutter of the tallies Ik�t;}r ;}v d;} treliyz/.

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.

See Clean Water Acts.

CWA. CWAS.

Contractor Weighted Average Share In Cost

Risk. Cwt.

A hundred-weight.

Cy I siy I.

In law French, here. (Cy-apres I siy;}prey I, hereafter; cy-devant Isiy d;}von/, heretofore.) Also as, so. A measure of time; a space in which the same revolutions begin again; a periodical space of time.

Cycle.

Cyne-bot Ikin;}bowt/, or cyne-gild Ikin;}gild I .

In feudal law, the portion belonging to the nation of the mulct for slaying the king, the other portion or were being due to his family.

Cynebote Ikin;}bowt/.

A mulct anciently paid by one who killed another, to the kindred of the deceased.

Cyphonism Isayf;}niz;}m/.

That kind of punishment used by the ancients, and later by the Chinese, called by Staunton the "wooden collar," by which the neck of the malefactor is bent or weighed down.

Cy-pres Isiyprey/.

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 inten tion as far as the rule against perpetuities will allow. So in the case of bequests to charitable uses; and partic ularly where the language used is so vague or uncertain that the testator's design must be sought by construc tion. Equitable power which makes it possible for court to carry out testamentary trust established for particular charitable purpose if testator has expressed general charitable intent, and for some reason his purpose can not be accomplished in manner specified in the will. In re Gatlin's Estate, 16 C.A.3d 644, 94 Cal.Rptr. 295, 296.

CYRICBRYCE Cyricbryce

/ch�r(�)chbriych/.

388

breaking

into

church. Cyricsceat / ch�r(�)chshiyt/.

(From eyrie, church, and sceat, a tribute). In Saxon law, a tribute or payment due to the church.

Cyrographarius /sayr;;')gr;;')feriy;;')s/.

In old English law, a cyrographer; an officer of the bancus, or court of common bench.

Cyrographum /sayrogr;;')f;;')m/. Czar Izar/(t)sar/.

A chirograph.

(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. The Slavonic word ultimately represents the Latin Caesar, but came through the medium of a Germanic language in which the word had the general sense uemperor.u

In the beginning of the 10th century the Bulgarian prince Symeon assumed this title, which remained at tached to the Bulgarian crown. In 1346 it was adopted by Stephen Duschan, king of Serbia. Among the Rus sians 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. Peter the Great introduced the title imperator, uemperor,u and the official style then became uEmperor of all the Russias, Tsar of Poland, and Grand Duke of Finlandu; but the Russian popular appellation contin ued to be tsar (the preferable modern spelling). The last tsar was Nicholas II, who abdicated on March 15, 1917, and was later executed.

D Fictitious names of places, used in the English books, as examples "The manor of Dale and the manner of Sale, lying both in Vale."

The letter "D" is used as an abbreviation for a num ber of words, the more important and usual of which are as follows:

Dale and sale.

1. Digestum, or Digesta, that is, the Digest or Pan dects in the Justinian collections of the civil law. Cita tions to this work are sometimes indicated by this abbre viation, but more commonly by "Dig."

Dalus, dailus, dailia I deyl;}s, deyliy;}(s)I .

2. Dictum. A remark or observation, as in the phrase "obiter dictum " (q. v.).

A certain mea sure of land; such narrow slips of pasture as are left between the plowed furrows in arable land.

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 under stand every loss or diminution of what is a man's own, occasioned by the fault of another. The harm, detri ment, or loss sustained by reason of an injury. See also

Damage.

3. Demissione. "On the demise." An action of eject ment 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"; "J.D.," "juris doctor." 5. "District. " Thus, "U.S. Dist. Ct. W.D. Pa." stands for United States District Court for the Western District of Pennsylvania. 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.

Damages; Damage to person; Injury; Loss.

In old English law, 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 ac tions 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 execu tion 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-cleer, or anything in lieu thereof, he forfeited treble the value.

Damage-cleer.

dabo Ideyb;}s? deybow/. Lat. (Will you give? I will give.) In the Roman law, one of the forms of making a verbal stipulation.

Dabis?

Dacion Idasyown/.

In Spanish law, the real and effec tive delivery of an object in the execution of a contract.

Dactylography I drekt;}logr;}fiy I.

Dactylography is the scientific study of finger prints as a means of identifica tion.

Every day; every day in the week; every day in the week except one. A newspaper which is published six days in each week has been held to be a "daily" newspaper.

Daily.

Daily balances;

balances for the interest is to be for the interest balances divided period.

average daily balance. The various different days in the period for which paid, and the "average daily balance" period means the sum of these daily by the number of days in the interest

Damage feasant or faisant I dremaj fiyz;}nt/.

Doing damage. A term formerly 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. This phrase seems to have been introduced in the reign of Edward III, in place of the older expression ''l!n son damage " (in damno suo).

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. A sum of money awarded to a person injured by the tort of another. Restatement, Second, Torts, § 12A. Money compensa tion sought or awarded as a remedy for a breach of contract or for tortious acts.

Damages.

The same as "usual occupation". International Brotherhood of Boiler Makers, Iron Ship builders & Helpers of America v. Huval, 133 Tex. 136, 126 S.W.2d 476, 478.

Daily occupation.

Obtained by multiplying hourly rate by number of hours in normal working day, though actual number of hours worked may be fewer.

Daily rate of pay.

389

DAMAGES

390

Damages may be compensatory or punitive according to whether they are awarded as the measure of actual loss suffered or as punishment for outrageous conduct and to deter future transgressions. Nominal damages are awarded for the vindication of a right where no real loss or injury can be proved. Generally, punitive or exemplary damages are awarded only if compensatory or actual damages have been sustained.

See also Economic loss; Loss; Pain and suffering.

I njury;

Just compensation;

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. Synonymous with "compensatory damages" and with "general damages." Benefit-of-the-bargain damages. Difference between the value received and the value of the fraudulent party's performance as represented. Civil Damage Acts. See Dram Shop Acts. 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. Damages awarded to a person as compensation, indem nity, or restitution for harm sustained by him. The rationale behind compensatory damages is to restore the injured party to the position he or she was in prior to the injury. Northwestern Nat. Cas. Co. v. McNulty, C.A.Fla., 307 F.2d 432, 434. Equivalent of Actual dam ages, above. Compensatory or actual damages consist of both gen eral and special damages. General damages are the natural, necessary, and usual result of the wrongful act or occurrence in question. Special damages are those "which are the natural, but not the necessary and inevitable result of the wrongful act."

Consequential damages. Such damage, loss or injury as does not flow directly and immediately from the act of the party, but only from some of the consequences or results of such act. Richmond Redevelopment and Housing Authority v. Laburnum Const. Corp., 195 Va. 827, 80 S.E.2d 574, 580. Damages which arise from intervention of special circumstances not ordinarily pre dictable. Roanoke Hospital Ass'n v. Doyle & Russell, Inc., 215 Va. 796, 214 S.E.2d 155, 160. Those losses or injuries which are a result of an act but are not direct and immediate. Consequential damages resulting from a seller's breach of contract include any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise, and injury to person or property proximately resulting from any breach of warranty. U.C.C. § 2-715(2). See also Hadley v. Baxendale, rule of; and Incidental damages, below.

Continuing damages. Such as accrue from the same injury, or from the repetition of similar acts, between two specified periods of time. Criminal damage. Criminal damage to property is by means other than by fire or explosive: (a) Willfully injuring, damaging, mutilating, defacing, destroying, or SUbstantially impairing the use of any property in which another has an interest withput the consent of such other person; or (b) Injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property with intent to injure or defraud an insurer or lienholder. See Arson. Damages ultra. Additional damages claimed by a plain tiff not satisfied with those paid into court by the defendant. Direct damages. Direct damages are such as follow immediately upon the act done. Damages which arise naturally or ordinarily from breach of contract; they are damages which, in ordinary course of human experi ence, can be expected to result from breach. Roanoke Hospital Ass'n v. Doyle & Russell, Inc., 215 Va. 796, 214 S.E.2d 155, 160. 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. See Remittitur. Excess liability damages. A cause of action in tort by an insured against his liability carrier for the negligent handling of settlement negotiations which result in a judgment against the insured in excess of his policy limits. G. A. Stowers Furniture Co. v. American Indem nity Co., Tex.Com.App., 15 S.W.2d 544. Exemplary or punitive 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 aggravations 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 "vindic tive" damages. Unlike compensatory or actual dam ages, punitive or exemplary damages are based upon an entirely different public policy consideration-that of punishing the defendant or of setting an example for similar wrongdoers, as above noted. In cases in which it is proved that a defendant has acted willfully, malicious ly, or fraudulently, a plaintiff may be awarded exempla ry damages in addition to compensatory or actual dam ages. Damages other than compensatory damages which may be awarded against person to punish him for outrageous conduct. Wetherbee v. United Ins. Co. of America, 18 C.A.3d 266, 95 Cal.Rptr. 678, 680. Such are given as an enhancement of compensatory damages be cause of wanton, reckless, malicious or oppressive char-

391

DAMAGES

acter of acts complained of. Cape Publications, Inc. v. Bridges, Fla.App., 387 So.2d 436, 440.

at law would not compensate the parties and place them in the position in which they formerly stood.

Expectancy damages. As awarded in actions for nonper formance of contract, such damages are calculable by subtracting the injured party's actual dollar position as a result of the breach from that party's projected dollar position had performance occurred. The goal is to ascer tain the dollar amount necessary to ensure that the aggrieved party's position after the award will be the same-to the extent money can achieve the identity-as if the other party had performed. Alover Distrib., Inc. v. Kroger Co., C.A.Ill., 513 F.2d 1137, 1140.

Incidental damages. Under U.C.C. § 2-710, such dam ages include any commercially reasonable charges, ex penses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the buyer's breach, in connection with the return or resale of the goods or otherwise resulting from the breach. Also, such damages, resulting from a seller's breach of contract, include expenses reasonably incurred in in spection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense inci dent to the delay or other breach. U.C.C. § 2-715(1). See also Consequential damages, above.

Fee damages. Damages sustained by and awarded to an abutting owner of real property occasioned by the con struction 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 ease ments of light, air, and access, and these are parts of the fee. Foreseeable damages. Loss that the party in breach had reason to know of when the contract was made. Future damages. Those sums awarded to an injured party for, among other things, residuals or future effects of an injury which have reduced the capability of an individual to function as a whole man, future pain and suffering, loss or impairment of earning capacity, and future medical expenses. Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618, 631. Those damages that flow as a natural and necessary result of the act claimed of, while "special damages" are damages which actually result from the act by reason of the special circumstances of the case and not as a necessary result of the act. Porter v. Crawford & Co., Mo.App., 611 S.W.2d 265, 271. Compare Special dam ages, below.

General damages. 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. Myers v. Stephens, 43 Cal.Rptr. 420, 433, 233 C.A.2d 104. Hedonic damages. Damages awarded in some jurisdic tions for the loss of enjoyment of life, or for the value of life itself, as measured separately from the economic productive value that an injured or deceased person would have had. Compensation to a personal injury victim "for the limitations on the person's life created by the injury." Thompson v. National Railroad Passenger Corp., C.A.Tenn., 621 F.2d 814, 824. Many courts hold that such loss is included in damages for disability and pain and suffering. 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

Irreparable damages. In the law pertaining to injunc tions, damages for which no certain pecuniary standard exists for measurement. Damages not easily ascertain able at law. 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. 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 depreci ation of, land adjoining that taken. See Just compensa tion; also, Severance damages, below, this topic. Limitation of damages. Provision in contract or agree ment by which parties agree in advance as to the amount or limit of damages for breach. U.C.C. § 2-718. See also Liquidated damages and penalties, below. Liquidated damages and penalties. The term is applica ble when the amount of the damages has been ascer tained 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. Stein v. Bruce, 366 S.W.2d 732, 735. The purpose of a penalty is to secure perform ance, while the purpose of stipulating damages is to fix the amount to be paid in lieu of performance. The essence of a penalty is a stipUlation as in terrorem while the essence of liquidated damages is a genuine covenant ed preestimate of such damages. Liquidated damages is the sum which party to con tract agrees to pay if he breaks some promise and, which having been arrived at by good faith effort to estimate actual damage that will probably ensue from breach, is recoverable as agreed damages if breach occurs. In re Plywood Co. of Pa., C.A.Pa., 425 F.2d 151, 154. Such are those damages which are reasonably ascertainable at time of breach, measurable by fixed or established exter nal standard, or by standard apparent from documents upon which plaintiffs based their claim. Ramada Devel opment Co. v. U.S. Fidelity & Guaranty Co., C.A.Mich., 626 F.2d 517, 525.

DAMAGES Damages for breach by either party may be liquidated in the agreement but only at an amount which is rea sonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtain ing an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. V.C.C. § 2-718(1).

Compare Unliquidated damages, below. Mitigation of damages. Although the law of damages contemplates full and just compensation for negligently inflicted injuries, the law likewise prescribes, as a recip rocal principle, that a tortfeasor should not sustain liability for those damages not attributable to the injury producing event. Consequently, a plaintiff may not recover damages for the effects of an injury which reasonably could have been avoided or substantially ameliorated. This limitation on recovery is generally denominated as "mitigation of damages" or "avoidance of consequences." Mitigation of damages or avoidance of consequences arises only after the injury producing event has occurred. Necessary damages. A term said to be of much wider scope in the law of damages than "pecuniary." It em braces all those consequences of an injury usually de nominated "general" damages, as distinguished from special damages; whereas the phrase "pecuniary dam ages" covers a smaller class of damages within the larger class of "general" damages. 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, al though there has been a real injury, the plaintiffs evidence entirely fails to show its amount. 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 calculation and of recompense in money. Those damages (either gener al or special) which can be accurately calculated in monetary terms. Ellis v. Crockett, 51 Haw. 45, 86, 451 P.2d 814, 820. See also Pecuniary loss. Presumptive damages. A term occasionally used as the equivalent of "exemplary" or "punitive" damages. Prospective damages. Damages which are expected to follow from the act or state of facts made the basis of a plaintiffs 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 imme diate and direct damages and natural results of the act complained of, and such as are usual and might have been expected. Remote damages rendow rir::>m

d::>min(i)yow I. things. Dead.

Of (about) acquiring the ownership of

See Death.

Worthless asset which has no realizable value; e.g. uncollectable account receivable.

Dead asset.

Deadbeat. Slang term for one who fails to pay his debts.

A corpse. deprived of life.

Dead body.

The body of a human being,

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). This is also the doctrine of the civil law.

Dead-born.

DEAD FREIGHT

398

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.

Dead freight.

A term sometimes applied to a law that has become obsolete by long disuse, and also to a letter that is undeliverable by the postal service because of insufficient address or postage and absence of return address.

Dead letter.

Deadlocked.

Unable to agree.

Corporation. Deadlock in a closely held corporation arises when a control structure permits one or more factions of shareholders to block corporate action if they disagree with some aspect of corporate policy. A dead lock often arises with respect to the election of directors, e.g., by an equal division of shares between two factions, but may also arise at the level of the board of directors itself. Term as used in statute empowering court to dissolve corporation when directors are deadlocked, means corporation which, because of decision or indeci sion of stockholders, cannot perform its corporate pow ers. Kollbaum v. K & K Chevrolet, Inc., 196 Neb. 555, 244 N.W.2d 173, 177. See Rev.Model Bus.Corp. Act § 14.30(2) (involuntary dissolution at request of share holder). Jury. Jury which cannot agree on verdict; sometimes called "hung jury". Trial court should not repeatedly give an "anti-deadlock" instruction to "deadlocked jury," which is one which trial judge has concluded is genuinely deadlocked, giving due consideration to such things as nature and complexity of trial issues, duration of trial, length of jury deliberations, and representations of jury to court about state of deliberations. Epperson v. U.S., D.C.App., 495 A.2d 1170, 1172. See also Dynamite instruction.

The degree of force that may result in the death of the person against whom the force is applied. Force likely or intended to cause death or great bodily harm; may be reasonable or unreasonable, depending on the circumstances.

Deadly force.

Any firearm, or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury. Model Penal Code, § 210.0. See also 18 U.S.C.A. § 921.

Deadly weapon.

Such weapons or instruments as are made and de signed for offensive or defensive purposes, or for the destruction of life or the infliction of injury. One which, from the manner used, is calculated or likely to produce death or serious bodily injury. Austin v. State, Fla. App., 336 So.2d 480, 481.

See also Dangerous weapon; deadly weapon.

Malicious assault with

A weapon which of itself is deadly or one which would ordinarily result in death by its use; e.g. gun. Baylor v. State, 151 Tex.Cr.R. 365, 208 S.W.2d 558, 561.

Deadly weapon per see

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; be ing, where the deceased leaves a widow and children, one-third; where he leaves only a widow or only chil dren, 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.

Dead man's part.

An evidential disqualification which renders inadmissible oral promises or declara tions of a dead person when offered in support of their claims by those who bring claims against the estate of the dead person. The last vestige of the disqualification of witnesses by reason of interest as this existed at common law, though many states admit such testimony under certain statutory conditions. The standard type of state dead man statute would be applicable under Fed.R.Evid. 601 only if testimony of the witness con cerned claims or defenses, or elements thereof, which were governed by state law.

Dead man's statute.

De admensuratione / diy redmensh:m�yshiy6wniy /.

Of admeasurement. Thus, de admensuratione dotis was a writ for the admeasurement of dower, and de admensu ratione pasturre was a writ for the admeasurement of pasture.

Dead-pledge.

A mortgage, mortuum vadium.

In English law, a rent payable on a mining lease in addition to a royalty, so called because it is payable although the mine may not be worked.

Dead rent.

Dead stock.

Goods in inventory for which there is no

market. The storage, especially of automobiles in public garages, where automobiles not in use are to remain uninterruptedly for a time, sometimes for the season.

Dead storage.

Time which does not count for any purpose, e.g. time for which a person is not paid wages, or time when employee is not working due to no fault of his own (e.g. because of machinery breakdown), or time for which a prisoner does not get credit in serving his sentence.

Dead time.

Dead use.

A future use.

De advisamento consilii nostri / diy redvayz�m€mtow

k�nsiliyay n6stray /. L. Lat. With or by the advice of our council. A phrase used in the old writs of summons to parliament. De requitate / diy ekw�teytiy /.

In equity, de jure stricto, nihil possum vendicare, de requitate tamen, nullo modo hoc obtinet; in strict law. I can claim nothing, but in equity this by no means obtains.

De restimato /diy est�meytow/ .

In Roman law, one of the innominate contracts, and, in effect, a sale of land or goods at a price fixed (restimato ), and guarantied by some third party, who undertook to find a purchaser.

399

DE ASSISA PROROGANDA

De retate probanda Idiy iyteytiy prowbrend�/.

For prov ing 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.

Deafforest I diy�fohr�stl .

See Disafforest.

Any person whose hearing is totally im paired or whose hearing is so seriously impaired as to prohibit the person from understanding oral communi cations when spoken in a normal conversational tone. See Code of Ga.Ann. § 30-1-l.

Deaf person.

An arrangement to attain a desired result by a combination of interested parties; the prime object be ing usually the purchase, sale, or exchange of property for a profit. Also, an act of buying and selling; a bargain to purchase at a favorable price. See Bargain.

Deal, n.

To traffic; to transact business; to bargain or trade. Also, to act between two persons, to intervene, or to have to do with.

Deal, v.

As to dealing in futures, see Futures contract.

In the popular sense, one who buys to sell; not one who buys to keep, or makes to sell. One who purchases goods or property for resale to final custom ers; a retailer. See also Retailer.

Dealer.

The term "dealer" means any person engaged in the business of buying and selling securities for his own account, through a broker or otherwise, but does not include a bank, or any person insofar as he buys or sells securities for his own account, either individually or in some fiduciary capacity, but not as a part of a regular business. Securities Exchange Act of 1934, § 3.

ty. Administrator in charge of counseling and disciplin ing students in college or secondary school. In England, 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 ap pointed to superintend ten canons or prebendaries. 1 Bl.Comm. 382. De anna bissextili Idiy renow baysekstaylay I.

Of the bissextile or leap year. The title of a statute passed in the twenty-first year of Henry III, which in fact, how ever, 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.

De annua pensione Idiy renyuw� penshiyowniy I.

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 0'" prior, for the person named in the writ.

De annuo reditu I diy renyuwow red�tyuw I.

For a year ly rent. A writ to recover an annuity, no matter how payable, in goods or money. In England, the presiding judge of the Court of Arches (q.v.).

Dean of the Arches.

De apostata capiendo Idiy reposteyt� krepiyendow I.

The puffing of goods to induce the sale thereof; not regarded in law as fraudulent unless ac companied by some artifice to deceive the purchaser and throw him off his guard or some concealment of intrin sic defects not easily discoverable. See Puffing.

Breve. Writ for taking an apostate. A writ which anciently lay against one who, having entered and pro fessed 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.

Transactions in the course of trade or busi

De arbitratione facta I diy arb�treyshiyowniy frekt�/ .

Dealer's talk.

Dealings.

ness. I diy rebkeyshiyowniy feys(h)iyend�/. 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.

allocatione

facienda

De alto et basso I diy reltow et bresow I.

Of high and low. A phrase anciently used to denote the absolute submis sion of all differences to arbitration.

De ambitu Idiy remb�tyuwI.

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 Idiy rempliyoray greysh(iy)�/.

more abundant or especial grace. Administrative or academic head of school, col lege or university. There may be several kinds of deans in larger schools (e.g. dean of student affairs, academic dean) and also deans of specific schools within universi-

Dean.

(Lat. O f arbitration had.) A writ formerly used when an action was brought for a cause which had been settled by arbitration. De arrestandis bonis ne dissiperitur I diy rer�strend�s

bown�s niy d�s�pent�r/ . An 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. arrestando ipsum qui pecuniam recepit Idiy rer�strendow ips�m kway p�kyuwniy�m r�siyp�t/ . 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.

asportatis religiosorum Idiy resp�rteyt�s r� lijiyowsor�ml . Concerning the property of religious per sons 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.

De assisa proroganda I diy �sayz� prowr�grend�/.

For proroguing assise.)

(Lat. A writ to put off an assise,

400

DE ASSISA PROROGANDA issuing to the justices, where one of the parties is en gaged in the service of the king. Death. The cessation of life; permanent cessations of all

vital functions and signs. Numerous states have enact ed statutory definitions of death which include brain-re lated criteria. For example, many states have adopted, sometimes with variations, the Uniform Determination of Death Act definition: "An individual who has sus tained either (1) irreversible cessation of circulatory and respiratory function, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards." See, e.g. , Calif.Health & Safety Code, § 7180. See also Swafford v. State, Ind., 421 N .E.2d 596, 602.

See also Contemplation of death; Presumption of death; Simultaneous Death Act; Wrongful death action.

Brain death. See Brain death; and Natural Death Acts, below. Civil death. See Civil death. Death benefits. Amount paid under insurance policy on death of insured. A payment made by an employer to the beneficiary or beneficiaries of a deceased employee on account of the death of the employee. A death benefit is also provided for under the Social Security Act. Death by wrongful act. Statutory action arising from act to which law attaches liability as in the case of serving unwholesome food that results in death, the action for which may be brought by personal representa tive of deceased. See also Wrongful death statutes. Death certificate. Official document issued by Register of Deaths or some other public official which certifies that a person has died. Generally such certificate speci fies the cause of death, and is commonly required to be signed by the attending or an examining physician. Fed.Evid.R. 803(9) provides a hearsay exception for ad missibility of death certificates.

Death warrant. A warrant from the proper executive authority appointing the time and place for the execu tion of the sentence of death upon a convict judicially condemned to suffer that penalty. Fetal death. See Fetal death. Instantaneous death. Term to describe death following accident within a very short time such as 15-20 min utes; such concept is important in death actions in which a claim is made for pain and suffering. Natural death. A death which occurs by the unassisted operation of natural causes, as distinguished not only from "civil death", but also from "unnatural" (e.g. vio lent) death. Natural Death Acts. Such statutes (e.g. Cal. Health & Safety Code § 7185 et seq.) authorize an adult to make a written directive instructing his physician to withhold life-sustaining procedures in the event of a terminal condition. In the directive, which is to be executed in a prescribed manner and made a part of the patient's medical records, the declarant directs that if he has been certified by two physicians as being afflicted with a terminal condition, he is to be permitted to die natural ly. The Act removes all civil or criminal liability from physicians who act in accordance with its provisions. It has been held that unwritten right of privacy is broad enough to include patient's decision to decline medical treatment in certain circumstances. Matter of Quinlan, 70 N.J. 10, 355 A.2d 647, 663. See also Brain death; Will (Living will). Presumptive death. That which is presumed from proof of a long continued absence unheard from and unex plained. The general rule, as provided by state statutes, 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. Violent death. One caused or accelerated by the inter ference of human agency; distinguished from "natural death."

Death duty. See Death taxes, below.

Death action. See Wrongful death action.

Death penalty. Supreme penalty exacted as punishment for murder and other capital crimes. The death penalty has been held to not be, under all circumstances, cruel and unusual punishment within prohibitions of 8th and 14th Amends., U.S. Const., Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; nor does the 6th Amendment require a jury trial on the sentencing issue of life or death, Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340.

Death Knell Doctrine.

Death records. Official records of deaths kept by town or city Register of Deaths or by some other public official with like functions. See Death certificate, above.

Doctrine which allows immedi ate appeal from interlocutory order where delay of re view until final judgment will cause irreparable loss of substantial rights and where order has practical effect of permanently foreclosing relief on claim. Moshe Myer owitz, D.C., P.A. v. Howard, Me., 507 A.2d 578, 580. Federal Act which provides for a pecuniary recovery for death "caused by wrongful act, neglect or default occurring on the high seas beyond a marine league from the shore of any state [territory or dependency]." 41 U.S.C.A. § 761 et seq. Mobil Oil Corp. v. Higginbotham, 98 S.Ct. 2010, 56 L.Ed.2d 581.

Death on High Seas Act.

The executioner; hangman; person that executes capital punishment.

Death sentence. See Death penalty, above.

Deathsman.

Death taxes. Generic term to describe all taxes imposed on property or on transfer of property at death of owner. Includes estate and inheritance taxes. See Estate tax;

Death's part. See Dead man's part.

I nheritance tax.

A structure or situation involving immi nent risk of death or a place apparently safe but actual-

Death trap.

401

DEBET ET DETINET

ly very dangerous to life. Benson v. Missouri, K. & T. R. Co., Tex.Civ.App., 200 S.W.2d 233, 240. De attornato recipiendo / diy ret�rneytow r�sipiyen

dow / . A writ which lay to the judges of a court, requir ing them to receive and admit an attorney for a party. audiendo et terminando / diy odiy{mdow et t;}rm�nrendow / . For hearing and determining; to hear and determine. The name of a writ, or rather commis sion granted to certain justices to hear and determine cases of heinous misdemeanor, trespass, riotous breach of the peace, etc. See Oyer and terminer.

/diy �v�riy�s krept�s �n wid�rneymiy�m/. Writ for taking cattle in withernam. A writ which lay where the sheriff re turned to a pluries writ of replevin that the cattle or goods, etc., were eloined, etc.; by which he was com manded to take the cattle of the defendant in wither nam (or reprisal), and detain them until he could re plevy the other cattle. See Withernam.

averiis

captis in withernamium

De averiis replegiandis /diy �v�riy�s r�pliyjiyrend�s/.

A writ to replevy beasts. 3 Bl.Comm. 149.

witness is unable to attend in person at that time or cannot be produced. See e.g. Fed.R.Civil P. 26, 27. Debenture /d�benty�r /.

Long term unsecured debt in strument, issued pursuant to an indenture. A promisso ry note or bond backed by the general credit and earn ing history of a corporation and usually not secured by a mortgage or lien on any specific property; e.g. , an unse cured bond. Holders of corporate debentures are credi tors of the corporation and entitled to payment before shareholders upon dissolution. See also Bond; Inden ture. Compare Secured bond. Certificate issued by customs to an importer for the deduction or refund of duties on merchandise imported and then exported by such importer.

Convertible debenture. Debenture which may be changed or converted into some other security (e.g. stock) usually at the option of the holder. Convertible subordinated debenture. Debenture which is subject or subordinate to prior payment of other indebt edness but which may be converted into another form of security.

De banco /diy breIJkow/.

Of the bench. A term former ly applied in England to the justices of the court of common pleas, or "bench," as it was originally styled.

Sinking fund debenture. Debenture which is secured by periodic payments into sinking fund, commonly managed by trustee for purpose of retiring such debt.

Debarment. To bar, exclude or preclude from having or

Subordinate debenture. Debenture which is subject to or subordinate to prior payment of other indebtedness.

doing something. Exclusion from government contract ing and subcontracting. See also Disbarment. Reducing the weight of gold and silver in coins of standard value or of increasing the amount of alloy in such coins. Such has the effect of reducing the intrinsic value.

Debasement.

Debauch / d�b6ch/.

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. 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 its modern legal sense, the word carries with it the idea of "carnal knowledge," aggravated by assault, violent seduction, ravishment. See also Debauchery.

Debauchery /d�b6ch�riy/.

In general, excessive indul gence in sensual pleasures; in a narrower sense, sexual immorality or excesses, or the unlawful indulgence of lust.

De bene esse /diy biyniy esiy / d� biyniy· /.

Conditional ly; 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.

Examination de bene esse. A provisional examination of a witness. An examination of a witness whose testimo ny 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

Bonds not secured by any specific property but issued against the general credit of a corporation or government.

Debenture bond.

An indenture containing obli gations not secured by a mortgage or other collateral; a key instrument in the process of long term debt financ ing for general business corporations. Its effect is to put the debenture-holder in substantially the same practical position as a bondholder secured by a first mortgage. See also Indenture.

Debenture indenture.

In England, a stock or fund repre senting money borrowed by a company or public body 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 led to their being in many cases superseded by debenture stock.

Debenture stock.

Debet esse finis litium / deb�tesiy fayn�s lish(iy)�m/.

There ought to be an end of suits; there should be some period put to litigation. Debet et detinet / deb�t et det�n�t/.

(Lat. He owes and detains.) Words anciently used in the original writ (and now, in English, in the plaintiffs declaration), 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 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

402

DEBET ET DETINET 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. 3 Bl.Comm. 155. Debet quis juri subjacere ubi delinquit 1 deb�t kwis

juray s�bjres�riy yuwbay d�liIJkw�t/. One [every one] ought to be subject to the law [of the place] where he offends. Debet sine breve 1deb�t sayniy briyviy I.

owes without declaration filed.) confession of judgment.

(Lat. He Used in relation to a

Debet sua cuique domus esse perfugium tutissimum

Ideb�t syuw� kyuwaykwiy dowm�s eSlY p�r fyuwjiy�m tyuwtis�m�m/. Every man's house should be a perfectly safe refuge. De bien et de mal Id� byen ey d� mrell.

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 deliv ery.

De biens Ie mort Id� biynz l� mor(t)/.

L. Fr.

Of the

goods of the deceased. De bigamis 1 diy big�m�sl.

Concerning men twice mar ried. The title of the English statute 4 Edw. I, St. 3; so called from the initial words of the fifth chapter.

Debile fundamentum fallit opus 1 deb�liy f�nd�ment�m

frel�t owp�sl. A weak foundation frustrates [or renders vain] the work [built upon it]. When the foundation fails, all goes to the ground; as, where the cause of action fails, the action itself must of necessity fail. Debit 1 deb�t/.

A sum charged as due or owing. An entry made on the asset side of a ledger or account. The term is used in book-keeping to denote the left side 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. As a noun, an entry on the left-hand side of an account. As a verb, to make an entry on the left-hand side of an account. A term used in accounting or book-keeping which results in an increase to an asset and an expense account and a decrease to a liability, revenue, or owner's equity account.

Compare Credit. Debita laicorum 1 deb�t� ley�kor�m/.

L. Lat. In old English law, debts of the laity, or of lay persons. Debts recoverable in the civil courts.

Debita sequuntur personam debitoris Ideb�t� s�k

w;)nt�r p�rsown�m deb�tor�s/.

Debts follow the person

of the debtor; that is, they have no locality, and may be collected wherever the debtor can be found. Account balance showing money owed to lender or seller. Accounting condition where there is an excess of debit over credit entries.

Debit balance.

Debitor 1 deb�br I.

In the civil and old English law, a

debtor. non prresumitur donare 1 deb�t�r non pr;}zyuwm�t�r d�neriy I. 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. 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.

Debitor

Debitorum pactionibus creditorum petitio nec tolli minui potest 1 deb�tor;}m preksh(iy)own�b;}s kred�tor�m p�tish(iy)ow nek tolay nek miyuway powt�st/. The rights of creditors can neither be taken away nor diminished by agreements among (or of) the debtors. nec

Debitrix Ideb�tr;}ks/. Debitum 1 deb�t�m/.

A female debtor. Something due, or owing, a debt.

Debitum et contractus sunt nullius loci 1deb�t�m et

k;}ntrrekt� s�nt n�lay�s lowsay I. Debt and contract are of [belong to] no place; have no particular locality. The obligation in these cases is purely personal, and actions to enforce it may be brought anywhere. Debitum in prresenti solvendum in futuro 1 deb;}t�m in

pr;}zentay solvend�m in fy�tyurow I. A debt or obli gation complete when contracted, but of which the per formance cannot be required till some future period. Debitum sine brevi 1 deb�t�m sayniy briyvay I.

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 some times applied to a debt evidenced by confession of judg ment without suit. The equivalent Norman-French phrase was "debit sans breve." Both are abbreviated to d.s.b.

De bone memorie 1diy bowniy mem�riy I.

L. Fr.

good memory; of sound mind. De bonis asportatis 1diy bown�s resp:)rteyt;}sl.

For goods taken away; for taking away goods. The action of trespass for taking personal property is technically called "trespass de bonis asportatis."

De bonis non 1 diy bown;}s non/.

An abbreviation of De

bonis non administratis (q. v.). administratis 1 diy bown�s non �d min�streyt�sl . 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 "administration de bonis non; " that is, of the goods not already administered.

De bonis non

non amovendis 1 diy b6wn�s non eym �vend�s/. Writ for not removing goods. A writ ancient-

De bonis

403

DEBT

ly directed to the sheriffs of London, commanding them, in cases where a writ of error was brought by a defen dant 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. De bonis propriis / diy bown;}s prowpriy;}s/.

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 administravit.

or intestati / diy bown;}s tes t;}tor;}s/"intesteytay/. Of the goods of the testator, or intestate. A term applied to a judgment awarding exe cution against the property of a testator or intestate, as distinguished from the individual property of his execu tor or administrator.

De bonis testatoris,

De bonis testatoris ac si / diy bown;}s test;}tor;}s rek say/.

(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 re lease, or, generally, in any case where he is to be charged in case his testator's estate is insufficient. De bono et malo /diy bownow et mrelow /.

See De bien

et de mal. De bono gestu /diy bownow jestyuw /.

For good behav

ior; for good abearance. A sum of money due by certain and express agreement. A specified sum of money owing to one person from another, including not only obligation of debtor to pay but right of creditor to receive and enforce payment. State v. Ducey, 25 Ohio App.2d 50, 266 N.E.2d 233, 235. Liability on a claim. Bankruptcy Code § 101.

Debt.

Common-law action. 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. 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 evi denced in a certain manner. It is said to lie in the debet 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.

Consumer debt. See Consumer debt. Contingent debt. See Contingent debt. Convertible debt. Debt which may be changed or con verted by creditor into another form of security, e.g. shares of stock. See Debenture (Convertible debenture). 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. 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 Bl.Comm. 465. Existing debt. See Existing debt. Floating debt. Short-term or current debt, not repre sented by securities. 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.

A fixed and certain obligation to pay money or some other valuable thing or things, either in the present or in the future. In a still more general sense, that which is due from one person to another, whether money, goods, or services. 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. 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.

Installment debt. Debt which is to be repaid in install ments; e.g. retail installment contract.

Active debt. One due to a person. Used in the civil law.

Judgment debt. See Judgment debt.

Ancestral debt. One of an ancestor which the law compels the heir to pay.

Legal debts. Those that are recoverable in a court of law, as debt on a bill of exchange, a bond, or a simple contract.

Antecedent debt.

See that title.

Bad debt. Uncollectible account receivable. Under Na tional Bank Act, an unsecured debt on which interest or payment is past due for at least six months. See also Bad debt; Bad debt reserve.

Bonded debt. Debt represented by bonds. See Bonded debt.

Funded debt. Debt represented by bonds or other secu rities. General debt.

See that title.

Hypothecary debt.

One which is a lien upon an estate.

Liquid debt. One which is immediately and uncondi tionally due. See also Liquidated debt. Mutual debts. Money due on both sides between two persons. Such debts must be due to and from same persons in same capacity. Cross debts in the same capacity and right, and of the same kind and quality.

DEBT

404

Passive debt. A debt upon which, by agreement be tween the debtor and creditor, no interest is payable, as distinguished from active debt; i.e., a debt upon which interest is payable. As used in another sense, 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 re gards the debtor. Preferential debts.

See that title.

Privileged debt. One which is to be paid before others in case a debtor is insolvent; e.g. secured debt. Proof of debt. See Proof. Public debt. That which is due or owing by the govern ment of a state or nation. Secured debt. Debt secured by collateral; e.g. by mort gage, securities, deed, etc. See Secured transaction. Simple contract debt. At common law, 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. Specialty debt. See Debt by specialty or special contract, above. Unliquidated debt. See Unliquidated debt. Engagement in the business of making contracts, express or implied, with a debtor whereby the debtor agrees to pay a certain amount of money periodi cally to the person engaging in the debt adjusting busi ness who shall for a consideration distribute the same among certain specified creditors. See also Debt adjust

Debt adjusting.

ment; Debt pooling; Wage earner's plan.

Settlement of dispute regarding debt obligation by compromise and adjustment. Term also refers to adjustment of debts of an individual with regular income as provided for under Chapter 13 of the Bankruptcy Code. See also Bankruptcy proceedings;

Debt adjustment.

Compromise and settlement; Debt pooling; Wage earner's plan.

Under federal tax law, discharge or cancellation of indebtedness ordinarily results in income to debtor when he settles debt for less than amount which he owes. I.R.C. § 61(a)(12). See Bankruptcy pro

Debt cancellation.

ceedings. Debt consolidation. Debtee.

See Debt pooling.

A person to whom a debt is due; a creditor.

An amount arrived at by dividing total liabilities by total equity of an entity (e.g. , total liabilities of corporation divided by total shareholders' equity). A high debt ratio is an indication that the entity may have difficulty meeting obligations which come due. A bank may be reluctant to provide financ-

Debt-equity ratio.

ing to an entity with a high debt ratio due to the risks associated with repayment. See also Debt ratio. Debt financing. Raising funds by issuing bonds or notes

or borrowing from a financial institution. Contrasted with equity financing which is raising funds by issuing and selling stocks. Corporate borrowing of money, gen erally on a long term basis for acquiring working capital or for retiring current indebtedness. Written promise to repay debt; e.g., promissory note, bill, bond, commercial paper.

Debt instrument.

Ceiling placed on amount of borrow ings by individuals, corporations or governments. Cer tain state constitutions prohibit deficit spending by government.

Debt limitations.

One who owes a debt to another who is called the creditor; one who may be compelled to pay a claim or demand; anyone liable on a claim, whether due or to become due. First Nat. Bank & Trust Co. in Macon v. Kunes, 128 Ga.App. 565, 197 S.E.2d 446, 449.

Debtor.

"Debtor" means "the person who owes payment or other performance of the obligation secured, whether or not he owns or has rights in the collateral, and includes the seller of accounts or chattel paper. Where the debtor and the owner of the collateral are not the same person, the term 'debtor' means the owner of the collat eral in any provision of the Article dealing with the collateral, the obligor in any provision dealing with the obligation, and may include both where the context so requires." U.C.C. § 9-105(1)(d). In bankruptcy law, person who files a voluntary peti tion or person against whom an involuntary petition is ""' filed. Person or municipality concerning which a bank ruptcy case has been commenced. Bankruptcy Code, § 101 . See Bankruptcy.

See also Absconding debtor; Joint debtors. Judgment debtor. One who owes money as a result of a judgment in favor of a creditor. In bankruptcy, refers to debtor in a Bankruptcy Code Chapter 11 or Chapter 12 case. For example, in a Chapter 11 case either the debtor will remain in control of its business or assets or a trustee will be appointed to take control of the business or assets.

Debtor in possession.

The English statute 32 & 33 Vict. c. 62, abolishing imprisonment for debt in England, and for the punishment of fraudulent debtors.

Debtor's Act of 1869.

Arrangement by which debtor adjusts many debts by distributing his assets among several creditors, who may or may not agree to take less than is owed; or, an arrangement by which debtor agrees to pay in regular installments a sum of money to one creditor who agrees to discharge all his debts. Such activities may constitute unauthorized practice of law (as in e.g. Mass.), and formerly could be an act of bankruptcy. See

Debt pooling.

Act of bankruptcy; Arrangement with creditors; Assign ment (Assignment for benefit of creditors); Bankruptcy proceedings; Wage earner's plan.

405

DECEM TALES

Amount of long-term debt divided by total of company's capital. See also Debt-equity ratio.

Debt ratio.

Debt retirement.

Repayment of debt.

Any form of corporate security reflected as debt on the books of the corporation in contrast to equity securities such as stock; e.g. bonds, notes and debentures are debt securities.

Debt security.

The interest and charges currently pay able on a debt, including principal payments.

Debt service.

De cretero /diy siyt�row / .

Henceforth.

calceto reparando / diy kci!ls�tow rep�rrendow / . Writ for repairing a causeway. An old English writ by which the sheriff was commanded to distrain the inhab itants of a place to repair and maintain a causeway, etc.

Decalogue /dek�log/.

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 /dek�neyt�s/.

A deanery. A company of ten persons. Also (and in this sense sometimes spelled Decania, or Decana), a town or tithing, consisting origi nally of ten families of freeholders. Ten tithings com pose a hundred. 1 Bl.Comm. 1 14.

Decania /d�keyniy�/.

The office, jurisdiction, territory, or command of a decanus, or dean.

Decanus /d�keyn�s/.

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 ecclesire; 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 offi cer 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. Deca nus militaris; a military officer having command of ten soldiers.

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. capitalibus dominis feodi / diy krep�tE�ybb�s d6m�nay fiy(�)day/. Of the chief lords of the fee.

Decapitation. The act of beheading.

A mode of capital

punishment by cutting off the head. De capite minutis /diy krep�tiy m�nyuwt�s/.

Of those who have lost their status, or civil condition. The name of a title in the Pandects. See Capitis deminutio.

De cartis reddendis / diy kart�s r�dend�s/.

For restor ing charters. A writ to secure the delivery of charters or deeds; a writ of detinue.

De catallis reddendis /diy btrebs r�dend�s/.

For re storing chattels. A writ to secure the return specifically of chattels detained from the owner.

De cautione admittenda / diy koshiyowniy redm�tend�/.

Writ to take caution or security. A writ which ancient ly lay against a bishop who held an excommunicated person in prison for his contempt, notwithstanding he had offered sufficient security (idoneam cautionem) to obey the commands of the church; commanding him to take such security and release the prisoner. Decease, n.

Death;

not including civil death.

See

Death. Decease,

Deceased.

To die; to depart life, or from life. A dead person.

See 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.

Decedent.

Property, both real and personal, which person possesses at the time of his death, and title to it descends immediately to his heirs upon his death subject to the control of the probate court for the pur poses of paying debts and claims and after distribution the estate ceases to exist. Mathey v. Mathey, 109 Mont. 467, 98 P.2d 373, 375.

Decedent's estate.

A fraudulent and deceptive 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. 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. See also Fraud; Misrepresentation; Reliance. For larceny by deceit, see

Deceit.

Larceny.

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. 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 of his not having been summoned by the sheriff, or by the collusion of his attorney. Decem tales / des�m teyliyz/.

Ten such; or ten tales, jurors. In practice, the name of a writ which issued in England, where, on a trial at bar, ten jurors were neces sary to make up a full panel, commanding the sheriff to summon the requisite number. 3 Bl.Comm. 364.

DECEMVIRI LITIBUS JUDICANDIS litibus judicandis Id:>semv:>ray lliyt:>b:>s juwd:>krend:>sl. Lat. In the Roman law, ten persons (five senators and five equites) who acted as the council or assistants of the prretor, when he decided on matters of law.

Decemviri

Decency.

Propriety of action, speech, dress, etc.

Decenna Id:>sen:>/.

In old English law, a tithing or decennary; the precinct of a frank-pledge; consisting of ten freeholders with their families.

Decennarius I des:>neriy:>sl.

Lat. One who held one half a virgate of land. One of the ten freeholders in a decennary. Decennier. One of the decennarii, or ten freeholders making up a tithing. 1 Bl.Comm. 1 14.

Decennary Id:>sen:>riyI.

At common law a tithing, com posed of ten neighboring families. 1 Bl.Comm. 114.

Deception. The act of deceiving; intentional misleading

by falsehood spoken or acted. Synonymous with fraud. Jackman v. Mau, 78 C.A. 234, 177 P.2d 599, 605. Know ingly and willfully making a false statement or repre sentation, express or implied, pertaining to a present or past existing fact. See also Bait and switch; Deceit; Fraud; Misrepresentation; Theft (theft by deception). Deceptione I d:>sepshiyownyI.

An old writ which lay properly against one that deceitfully did anything in the name of another, for one that was damaged thereby. It was either original or judicial.

Deceptis non decipientibus, jura subveniunt I d:>sept:>s

406 Such practices may encompass any type of business practice or action which deceives consumers, but acts or practices which are not among those listed by statute present jury question of whether action was deceptive. Southwest Lincoln-Mercury, Inc. v. Ross, Tex.Civ.App., 580 S.W.2d 2, 5. See, e.g., Bait and switch.

See also Consumer protection laws; Deceptive advertis ing. De certificando Idiy s�rt:>f:>krendowI.

A writ requiring a thing to be certified. A kind of certiorari.

Process through which a group of em ployees decides it no longer wants a union to be its bargaining unit. The process involves an election con ducted by the National Labor Relations Board.

Decertification.

De certiorando Idiy s�rsh(iy):>rrendow/.

A writ for certi fying. A writ directed to the sheriff, requiring him to certify to a particular fact.

Decessus Id:>ses:>sl.

In the civil and old English law,

death; departure. Decet tamen principem servare leges quibus ipse servatus est I diys:>t trem:>n prins:>p:>m s:>rveriy liyjiyz

kwib:>s ipsiy s:>rveyt:>s est/. It behooves, indeed, the prince to keep the laws by which he himself is pre served. De champertia Idiy kremp�rsh(iy):>/.

Writ of champer ty. A writ directed to the justices of the bench, com manding the enforcement of the statute of champertors.

non d:>sipiyent:>b:>s, jur:> s�bviyniy:>nt/. The laws help persons who are deceived, not those deceiving.

De char et de sank Id:> char ey d:>sreIJ(k)/.

False and misleading advertis ing. Advertisement which contains any assertion, rep resentation or statement of fact which is untrue or misleading.

De chimino I diy kim:>now I.

Deceptive advertising.

Where the public are not cautious or watchful in their buying habits and are likely to be misled, the legislature may require not only the absence of active deception in advertising, but also affirmative measures to prevent misunderstanding. Com. v. Ferris, 305 Mass. 233, 25 N.E.2d 378. See, e.g., Mass.G.L. c. 266, § 91; 15 U.S. C.A. § 52 et seq.

See also Deceptive sales practices. Deceptive sales practices. The Federal Trade Commis

sion and statutes in most states make deceptive sales practices unlawful. Historically, an act was deceptive if it had any tendency to deceive a nontrivial number of customers. A more recent reformulation of the test defines a deceptive act as one which is likely to deceive a consumer acting reasonably in the circumstances. See, e.g., Mass.G.L. c. 93A, § 21(Z ); 15 U.S.C.A. § 45(a)(1). As term is used in consumer protection statutes, may

import less than common law fraud in sale of goods or services though there must be some measure of deceit. Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 N.E.2d 768, 779. A sales practice may be deceptive if it could reasonably be found to have caused person to act differently from way he otherwise would have acted. Kazmaier v. Wooten, C.A.Mass., 761 F.2d 46.

L. Fr. Of flesh and blood. Affaire rechat de char et de sank. Words used in claiming a person to be a villein, in the time of Edward II. A writ for the enforcement

of a right of way. De cibariis utendis I diy s:>beriy:>s yuwtend:>sl.

Of vict uals to be used. The title of a sumptuary statute passed 10 Edw. III, St. 3, to restrain the expense of entertain ments.

To arrive at a determination. 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. See Decision.

Decide.

Decies tantum I deshiyiyz trent:>m/.

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.

Decimre Ides:>miy/.

In ecclesiastical law, tenths, or tithes. The tenth part of the annual profit of each living, payable formerly to the pope. There were sever al 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.

Decimre debentur parocho Ides:>miy d:>bent:>r p:>row

kow I.

Tithes are due to the parish priest.

407

DECLARATION

Decimre de decimatis solvi non debent Ides;;)miy diy

des;;)meyt;;)s solvay non deb;;)nt/. Tithes are not to be paid from that which is given for tithes. Decimre de jure divino et canonica institutione perti nent ad personam I des;;)miy diy juriy d;;)vliynow et

k;;)non;;)k;;) inst;;)tyuwshiyowniy p�rt;;)n;;)nt red p;;)rsown;;)m/. Tithes belong to the parson by divine right and canoni cal institution. Decimre non debent solvi, ubi non est annua renova tio;

annuatis

renovantibus

simul

semel

Ides;;)miy non deb;;)nt solvay, yUwbay non est renyuw;;) ren;;)veysh(iy)ow; et eks renyuweyt;;)s ren;;)vrent;;)b;;)s sliym;;)l sem;;)lI. Tithes ought not to be paid where there is not an annual renovation, and from annual renova tions once only. The punishing of every tenth soldier by lot, for mutiny or other failure of duty. This was termed "decimatio legion is " by the Romans. Sometimes only the twentieth man was punished (vicesimatio), or the hundredth (centesimatio).

Decimation.

Decipi quam fallere est tutius I des;;)pay kwrem frel;;)riy

est tyuwsh(iy);;)s/. deceive.

It is safer to be deceived than to

A determination arrived at after considera tion of facts, and, in legal context, law. A popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning. It may be em ployed as referring to ministerial acts as well as to those that are judicial or of a judicial character.

Decision.

A determination of a judicial or quasi judicial nature. A judgment, decree, or order pronounced by a court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it. The term is broad enough to cover both final judgments and interlocutory orders. And though sometimes limit ed to the sense of judgment, the term is at other times understood as meaning simply the first step leading to a judgment; or as an order for judgment. The word may also include various rulings, as well as orders, including agency and commission orders. U. S. v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 291, 64 L.Ed. 333. The findings of fact and conclusions of law which must be in writing and filed with the clerk. Wilcox v. Sway, 69 Cal.App.2d 560, 160 P.2d 154, 156. "Decision" is not necessarily synonymous with "opin ion." 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. But the two words are sometimes used interchangeably.

See also Decree; Final decision; Opinion; Order; Verdict.

Finding; Judgment;

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 subse quent suit on same cause of action. Eulenberg v. Tor ley's Inc., 56 Cal.App.2d 653, 133 P.2d 15, 17. Decisive, or decisory, oath.

See Oath.

Under the "Decker test," an employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation's lawyer is privileged where the employee made the communication at the direction of his supervisors and where the subject mat ter on which the lawyer's advice was sought by the corporation and dealt with in the communication was with the performance by the employee of the duties of his employment. Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co., D.C.Va., 68 F.R.D. 397, 401.

Decker test.

D e clamea admittenda i n itinere per attornatum Idiy

kleymiy;;) redm;;)tend;;) in aytin;;)riy p;;)r ret;;)rneyt;;)m/. See Clamea admittenda, etc. Declarant.

A person who makes a declaration.

In common-law 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 or action. It commonly comprises several sections or divisions, called "counts", and its formal parts follow each other in this general order: Title, venue, commencement, cause of action, counts, conclusion. The declaration, at common law, answers to the "libel" in ecclesiastical and admiral ty law, the "bill" in equity, the "petition" in civil law, the "complaint" in code and rule pleading, and the "count" in real actions. The term "complaint" is used in the federal courts and in all states that have adopted Rules of Civil Procedure.

Declaration.

In law of evidence, an unsworn statement or narration of facts made by 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 de ceased, which are admissible in evidence in some cases, contrary to the general rule, e.g., "dying declarations" (q. v.). See also Declaration against interest, below. Listing by person entering United States of merchan dise or other goods brought into country by him. The basic governing document or "constitution" for a condominium. A document by the owner of property which is record ed in order to establish a legal order upon the property, such as a condominium (by a declaration of condomin ium or master deed), a system of cross-easements (by a declaration of easements) or a homeowners association (by declaration of covenants, restrictions and ease ments).

Declarations against interest. An out of court statement by a declarant who is unavailable as a witness is admis sible as an exception to the rule against hearsay if the statement was against his interest at the time it was made. Under the common law the statement must have been against the pecuniary or proprietary interest of the declarant. Under Federal Rule of Evidence 804(bX3) and the law of some states, the statement may also be admitted if it was against the penal interest of the declarant. However, the Federal Rule provides that a statement which tends to expose the declarant to crimi-

DECLARATION

408

nal liability and which is "offered to exculpate the accused" is not admissible "unless corroborating circum stances clearly indicate the trustworthiness of the state ment." Such declarations are evidence of the fact declared, and are therefore distinct from admissions, which amount to a waiver of proof. They are statements which, when made, conflict with the pecuniary or pro prietary interest of the person making them, or so far tend to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.

Declaration in chief cause of action.

A declaration for the principal

Declaration of dividend. The act of a corporation in setting aside a portion of its net or surplus income for distribution among the stockholders according to their respective stock ownership. First Nat. Bank & Trust Co. v. Glenn, D.C.Ky., 36 F.Supp. 552, 554. See also Dividend.

Declaration of homestead. Statement required to be filed with proper state or local official or agency show ing property ownership for purposes of securing home stead exemption rights. 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 convey ance 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. Alloway, 173 Wash. 404, 23 P.2d 408. See also Homestead. Declaration of Independence. A formal declaration or announcement, proIhulgated July 4, 1776, by the Con gress of the United States of America, in the name and behalf of the people of the colonies, asserting and pro claiming their independence of the British crown, vindi cating their pretensions to political autonomy, and an nouncing themselves to the world as a free and indepen dent 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 for eign prince, potentate, state, or sovereignty whereof at the time he may be a citizen or subject. 8 U.S.C.A. § 1445. Declaration of legitimacy. Formal pronouncement that a person is a legitimate child. Declaration of pain. Exception to hearsay rule which permits testimony of out of court statement consisting of declarant's exclamation of present pain. Fed.Evid.R. 803(3). Declaration of right. See Bill of Rights. Declaration ofstate of mind. Exception to hearsay rule which permits testimony of out of court statement con-

cerning person's state of mind, e.g. Evid.R. 803(3).

"I am sad".

Fed.

Declaration of trust. The act by which the person who holds the legal title to property or an estate acknowl edges 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. Declaration of war. A public and formal proclamation by a nation, through its executive or legislative depart ment, 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. Rosenau v. Idaho Mut. Ben. Ass'n, 65 Idaho 408, 145 P.2d 227, 230. See Art. I, Sec. 8, cl. 11, U.S. Const.

Dying declarations. Statements made by a person who believes he is about to die 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 suspect ed of having committed them. Such statements are admissible in evidence as an exception to the hearsay rule 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. Generally, the admissibility of such declarations is limited to use in prosecutions for homicide; but is ad missible on behalf of accused as well as for prosecution. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death is not excluded by the hearsay rule. Fed.Evid.R. 804(b)(2). Selfserving 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. The day on which directors of a corporation declare a dividend as contrasted with date on which the dividend is actually paid. See Ex dividend.

Declaration date.

A tax payment proce dure whereby non-wage earner individuals, and wage earners with other income not subject to withholding, as well as corporations are required to file declarations of estimated tax and make periodic payments of such. This requirement assures current collection of taxes from taxpayers whose incomes are not taxed, or fully taxed, by means of payroll withholdings. I.R.C. §§ 6015, 6154. See Estimated tax.

Declaration of estimated tax.

Declaration of Paris. The name given to an agreement

announcing four important rules of international law

409

DE COMMUNI DIVIDUNDO

effected between the principal European powers at the Congress of Paris in 1856. These rules are: (1) Priva teering 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. Federal law governing taking of private property for public use under eminent domain. 40 U.S.C.A. §§ 58a-258e; U. S. v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336. See Eminent do

Declaration of Taking Act.

main.

A common law action resorted to against a trustee who holds property upon titles ex facie for his own benefit.

Declarator of trust.

Explanatory; designed to fix or elucidate what before was uncertain or doubtful.

Declaratory.

Declaratory action.

See Declaratory judgment.

Statutory (see Declaratory Judg ment Act) remedy for the determination of a justiciable controversy where the plaintiff is in doubt as to his legal rights. A binding adjudication of the rights and status of litigants even though no consequential relief is award ed. Brimmer v. Thomson, Wyo., 521 P.2d 574, 579. Such judgment is conclusive in a subsequent action between the parties as to the matters declared and, in accordance with the usual rules of issue preclusion, as to any issues actually litigated and determined. Seaboard Coast Line R. Co. v. Gulf Oil Corp., C.A.Fla., 409 F.2d 879.

Declaratory judgment.

Declaratory Judgment Act. Federal statute enacted in

1934, 28 U.S.C.A. § 2201, which permits bringing of complaint for a declaration of rights if there is an actual controversy between the parties. The judgment is bind ing as to present and future rights of the parties to the action. See Fed.R.Civil P. 57. Most states have statutes of a like or similar nature; many of which are patterned on The Uniform Declaratory Judgments Act. See also Declaratory judgment.

That which clearly defines rights to be observed and wrongs to be eschewed.

Declaratory part of a law.

Declaratory relief. See Declaratory judgment.

One enacted for the purpose of removing doubts or putting an end to conflicting deci sions in regard to what the law is in relation to a particular matter. It may either be expressive of the common law, 1 Bl.Comm. 86; 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.

Declaratory statute.

To make known, manifest, or clear. To signi fy, to show in any manner either by words or acts. To publish; to utter; to announce clearly some opinion or resolution. 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. See Declaration.

Declare.

De claro die Idiy klerow day(iy)/.

By daylight.

De clauso fracto I diy k16zow frrektow I.

Of close broken;

of breach of close. See Clausum fregit. De clerico admittendo I diy klehr�kow redm�tendow I.

See Admittendo clerico. De clerico capto per statutum mercatorium deliber

I diy klehr�kow kreptow par st�tyUwt�m mark�t6riy�m d�lib�rrendow/. 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. ando

clerico convicto deliberando I diy klehr�kow k�nviktow d�lib�rrendow I. See Clerico convicto, etc.

De clerico infra sacros ordines constituto non eligen do in officium I diy klehr�kow infr� srekrows 6rd�niyz konst�tyuwtow non el�jendow in �fis(h)iy�m/. See Cleri co infra sacros, etc. De clero Idiy klirow/.

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.

Declination. Document filed in court by a fiduciary who

chooses not to serve in his named capacity. At common law, a plea to the courts' jurisdiction on the ground that the judge is personally interested in the suit. Declinatoires Ideykliynatwarz/.

In French law, pleas to the jurisdiction of the court; also of lis pendens, and of connexite (q. v.). exceptions I d�klayn�toriy �ksepsh�nsl . Such dilatory exceptions as merely decline the jurisdic tion of the judge before whom the action is brought. A plea to the jurisdiction ratioTUe persoTUe.

Declinatory

Declinatory plea I d�klayn�toriy pliy I.

In English prac tice, the plea of sanctuary, or of benefit of clergy, before trial or conviction. 4 Bl.Comm. 333. Now abolished.

A failing process, a tendency to a worse state; to become gradually impaired; a falling off or downward tendency. Also, to refuse or reject.

Decline.

Decoctor Id�k6kt�r/.

In the Roman law, a bankrupt; a spendthrift; a squanderer of public funds.

Idiykoleysh(iy)ow/. In old English and Scotch law, decollation; the punishment of beheading.

Decollatio

combustione domorum I diy k�mbast(i)y6wniy dam6r�m/. of house burning. One of the kinds of appeal formerly in use in England.

De communi dividundo I diy k�myuwnay div�d:indowI.

For dividing a thing held in common. The name of an action given by the civil law.

DE COMON DROIT De comon droit Id;} k6m;}n dr6ytl.

410 L. Fr. Of common

from office for some cause therein assigned. 1 Bl.Comm. 348.

A state of decomposition. A separation into components; specifically, decay or dissolution. In re Vetter, Cust. & Pat.App., 96 F.2d 999, 1000.

De corpore comitatus I diy k6rp;}riy kom;}teyt;}s/. From

right; that is, by the common law. Decomposed.

De computo Idiy k6mpy;}tow/. Writ of account.

A writ commanding a defendant to render a reasonable account to the plaintiff, or show cause to the contrary. The foundation of the modern action of account.

De concilio curire Idiy k;}nsiliyow kyuriyiy I.

By the

advice (or direction) of the court. 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.

Deconfes.

De conflictu legum Idiy k;}nflikt(y)uw liyg;}m/.

Con cerning the conflict of laws. The title of several works written on that subject.

I diy k;}nj:ilJkt;}m fiyfeyt;}s/. 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 disseis in, and other writs, pleading that some one else was seised jointly with them.

De conjunctim feoffatis

De consanguineo, and de consanguinitate I diy kCln

sreIJgwiniyowI diy konsreIJgwin;}teytiy I. nage (q. v.).

Writs of cosi

De consilio Idiy k;}nsiliyow/.

counsel; crime.

In old criminal law, of concerning counsel or advice to commit a

De consilio curire I diy bnsiliyow kyuriyiy I.

By the

advice or direction of the court. De continuando assisam I diy k;}ntinyuwrendow ;}say

z;}m/. Writ to continue an assise. De contumace capiendo I diy konty;}meysiy krepiyen

dow/. 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 ecclesi astical court to be contumacious, and in contempt. It is a commitment for contempt. copia libelli deliberanda I diy k6wpiy;} bbelay' d;}lib;}rrend;}I . 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. The writ in the register was directed to the Dean of the Arches, and his commissary.

De coronatore eligendo I diy kor;}n;}t6riy ebjendowI.

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. De coronatore exonerando I diy kor;}n;}t6riy ;}kson

;}rrendow/. Writ for discharging or removing a coroner. A writ by which a coroner in England may be removed

the body of the county at large, as distinguished from a particular neighborhood (de vicineto). 3 Bl.Comm. 360. Used with reference to the composition of a jury. corrodio habendo I diy br6wdiyow h;}bendowI. Writ for having a corody. A writ to exact a corody from a religious house. See Corody.

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. Compare Entrapment. A letter prepared and mailed for the purpose of detecting a criminal, particularly one who is perpetrating frauds upon the postal or revenue laws.

Decoy letter.

The judgment of a court of equity or chancery, answering for most purposes to the judgment of a court of 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 con science. It is a declaration of the court announcing the legal consequences of the facts found. With the proce dural merger of law and equity in the federal and most state courts under the Rules of Civil Procedure, the term "judgment" has generally replaced "decree". See Fed.R. Civil P. 54(a). See also Decision; Judgment; Order.

Decree.

General 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. An interlocutory decree is a provisional or pre liminary decree, which is not final and does not deter mine the suit, but directs some further proceedings preparatory to the final decree. It is a decree pro nounced for the purpose of ascertaining matter of law or fact preparatory to a final decree. Where something more than the ministerial execution of the decree as rendered is left to be done, 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.

Consent decree. A judgment entered by consent of the parties whereby the defendant agrees to stop alleged illegal activity without admitting guilt or wrongdoing. Agreement by defendant to cease activities asserted as illegal by government (e.g. deceptive advertising practic es as alleged by F.T.C.). Upon approval of such agree-

411

DECROWNING

ment by the court the government's action against the defendant is dropped. Also, a decree entered in an equity suit on consent of both 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. It binds only the consenting parties; and is not binding upon the court.

Decree nisi /d;)kriy miysay/ . A provisional decree, which will be made absolute on motion unless cause be shown against it. Interlocutory judgment or decree in divorce action. 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 a certain period (which period ' may be shortened by the court), and then , unless suffi cient cause be shown, it is made absolute on motion, and the dissolution takes effect, subject to appeal. It effects a conditional divorce, becoming absolute only upon the happening of a prescribed contingency.

for the valuation of teinds), determining the extent and value of teinds. Decrementum maris / dekr�ment�m mrer�s/.

Lat. In old English law, decrease of the sea; the receding of the sea from the land. See Reliction.

Decrepit /d;)krep�tI. This term designates a person who

is disabled, incapable, or incompetent, either from physi cal 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. 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. Decreta /d;)kriyt�/.

In the Roman law, judicial sen tences given by the emperor as supreme judge.

Decreta

conciliorum

non

ligant

The granting or denying of reme dy sought. State v. Reagan County Purchasing Co., Tex.Civ.App., 186 S.W.2d 128, 134.

Decretal order / d�kriyt;)l ord;)r /.

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.

Decretals / d�kriyt;)lz/.

A preliminary order that determines no question upon the merits and estab lishes no right.

In ecclesiastical law, letters of the pope, written at the suit or instance of one or more persons, determining some point or question in ecclesias tical law, and possessing the force of law, within the Roman Catholic Church. The decretals form the second part of the body of canon law.

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 consequent ly taken "as confessed." It is merely an admission of the allegations of the bill well pleaded.

Decreto /deykreytow/.

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.

Decretum /d�kriyt�m/.

For Execution of decree, see Execution. Decreet absolvitor / d�kriyt ;)bzolv�t�r/ .

A decree dis missing a claim, or acquitting a defendant.

Decreet arbitral /d�kriyt arb;)tr�l/.

An award of arbi

trators. / d�kriyt kognishiyown�s koz�/. 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 causa.

Decreet cognitionis causa

Decreet condemnator /d�kriyt kond�mneyt;)r /.

One

where the decision is in favor of the plaintiff. of valuation of teinds /d�kriyt ;)v vrelyuweysh�n ;)v tiyndz/. A sentence of the court of sessions (who are now in the place of the commissioners

Decreet

nostros

Decretal / d;)kriyt�l/ .

Decree of distribution. An instrument by which heirs receive property of a deceased; it is a final determina tion of the parties to a proceeding.

Decree of nullity. One entered in a suit for the annul ment of a marriage, and adjudging the marriage to have been null and void ab initio. See NUllity.

reges

/ d�kriyt� k�nsiliyor�m non lig�nt riyjiyz nostrows/. The decrees of councils bind not our kings.

This is also the title of the second of the two great divisions of the canon law, the first being called the "Decree" (decretum). In Spanish colonial law, an or der emanating from some superior tribunal, promul gated in the name and by the authority of the sovereign, in relation to ecclesiastical matters.

In the civil law, a species of imperial constitution, being a judgment or sentence giv en by the emperor upon hearing of a cause (quod imper ator cognoscens decrevit). In canon law, an ecclesiastical law, in contradistinc tion to a secular law (lex).

Decretum gratiani /d�kriyt�m greyshiyeynay/.

Gra tian's decree, or decretum. A collection of ecclesiastical law in three books or parts, made in the year 1 151, by Gratian, a Benedictine monk of Bologna, being the old est as well as the first in order of the collections which together form the body of the Roman canon law. 1 Bl.Comm. 82. An official act generally accom plished by legislation, in which an act or omISSIon, formerly criminal, is made non-criminal and without punitive sanctions.

Decriminalization.

Decrowning.

The act of depriving of a crown.

DECRY

412

To cry down; to deprive of credit; to deprecate, disparage or belittle. "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.

Decry.

Dedi I diyday I.

De cujus Idiy kyuwj�s/.

Dedicate.

De curia claudenda I diy kyuriy� klodend�/.

Dedication.

Lat. From whom. A term used to designate the person by, through, from, or under whom another claims.

An obso lete 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.

Decurio Id�kyuriyowI.

Lat. A decurion. In the pro vincial administration of the Roman empire, the decu rions 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.

De cursu I diy k�rsyuw I.

Of course. The usual, neces sary, 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 I diy k�st6wdiy redm�tendow I.

Writ for admitting a guardian. De custode amovendo I diy k�st6wdiy eym�vendowI.

Writ for removing a guardian. De custodia terrre et hreredis I diy k�st6wdiy� tehriy et

h�riyd�s/. 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. 3 Bl. Comm. 141. Dedbana Idedbeyn�/.

In Saxon law, an actual homicide

or manslaughter. De debito ldiy deb�tow/.

A writ of debt.

De debitore in partes secando Idiy deb�t6riy in partiyz

s�krendow I. 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 con tend that the language of this law must be taken figura tively, denoting a cutting up and apportionment of the debtor's estate. De deceptione I diy d�sepshiy6wniy I.

A writ of deceit which lay against one who acted in the name of another whereby the latter was damnified and deceived.

De deoneranda pro rata portionis I diy diyown�rrend�

prow reyt� porshiy6wn�s/. Writ that lay where one was distrained for rent that ought to be paid by others proportionably with him.

(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.

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.

The appropriation of land, or an easement therein, by the owner, for the use of the public, and accepted for such use by or on behalf of the public. Such dedication may be express where the appropriation is formally declared, or by implication arising by opera tion of law from the owner's conduct and the facts and circumstances of the case. Varallo v. Metropolitan Government of Nashville and Davidson County, Tenn. App., 508 S.W.2d 342, 346. 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. Consolidated Realty Co. v. Richmond Hotel & Building Co., 253 Ky. 463, 69 S.W.2d 985. See also Dedication and reservation.

By adverse user. A dedication may arise from an ad verse exclusive use by the public under a claim of right with the knowledge, actual or imputed, and acqui escence of the owner. 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 regu lating the subject, and is of course necessarily express. 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. Copyright law. At common law, the creator of a work has the right to copy and profit from it and distribute it or show it to a limited class of persons for a limited purpose without losing such right, and the right contin ues until the creator allows general publication of the work to occur. A general publication of work occurs when the work is made available to members of the public at large without regard to whom they are or what they propose to do with it, and common law copyright may be lost by general publication or by an unrestricted sale of a single copy. Clark Equipment Co. v. Harlan Corp., D.C.Kan., 539 F.Supp. 561. Dedication of work to the public domain is a question of law, not intent of proprietor. Data Cash Systems, Inc. v. JS & A Group, Inc., C.A.Ill., 628 F.2d 1038, 1043. 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 im plied dedication may be shown by some act or course of

413

DEDUCTION

conduct on the part of the owner from which a reason able inference of intent may be drawn, or which is inconsistent with any other theory than that he intend ed a dedication.

Statutory dedication. Such occurs when owner of prop erty files or records a plat which marks or notes on plat portions of premises as donated or granted to public; it results in conveyance of dedicated portions in fee simple to public. Water Products Co. of Illinois, Inc. v. Gabel, 2 Dist., 120 Ill.App.3d 668, 76 Ill.Dec. 194, 197, 458 N.E.2d 594, 597. The dedicator may im pose reasonable conditions, restrictions and limitations, and compliance therewith is essential unless waived. Dedicator may reserve a new right in himself by way of implied grant and may include rights personal or rights appurtenant to the land. At common law, a reservation in a dedication is not perpetuaL

Dedication and reservation.

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 there; and such assemblies were allowed as lawfuL It was usual for the people to feast and to drink on those days.

Dedication-day.

De die in diem /diy dayiy in day;}m/.

From day to day.

Dedi et concessi / diyday et k;}nsesay /.

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 convey ances are made. 2 BLComm. 53, 316, 317. /ded;}m;}s et k;}nses;}m;}s/. (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 et concessimus

/ded;}m;}s powt;}steyt;}m/. (We have given power.) In old 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 BLComm. 447. It was anciently al lowed for many purposes not now in use, as to make an attorney, to take the acknowledgment of a fine, etc.

Dedimus potestatem

In the United States, a commission to take testimony was sometimes termed a "dedimus potestatem. " Dedimus potestatem de attorno faciendo / ded;}m;}s

powt;}steyt;}m diy ;}t�rnow feys(h)iyendow/ . In old Eng� lish practice, a writ, issued by royal authority, empower ing 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 /d;}dish;}n/.

The act of yielding up anything;

surrender. Dedititii /diyd;}tayshiyay/.

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. De diversis regulis juris antiqui /diy d;}v�rs;}s regy;}bs

jur;}s rentaykway/. 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. De dolo malo / diy d6wlo m�How /.

Of or founded upon

fraud. See Actio de dolo malo. De domo reparanda /diy d6wmow rep;}rrend;}/.

A writ which lay for one tenant in common to compel his cotenant to contribute towards the repair of the common property.

De donis /diy d6wn;}s/.

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. 2 Bl.Comm. 1 12.

De dote assignanda /diy d6wtiy res;}gnrend;}/.

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.

De dote unde nihil habet / diy d6wtiy �ndiy nay;}l

heyb;}t/. 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 was some times used in the United States. Deductible. That which may be taken away or subtract

ed. In taxation, an item which may be subtracted from gross income or adjusted gross income in determining taxable income (e.g. , interest expenses, charitable contri butions, certain taxes, etc.). See also Deduction. The portion of an insured loss to be borne by the insured before he is entitled to recovery from the insur er. See Deductible clause. Clause in insurance policy provid ing that insured will absorb first part of loss (e.g. first $100) with insurer paying the excess.

Deductible clause.

That which is deducted; the part taken away; abatement; as deductions from gross income in arriving at net income for tax purposes.

Deduction.

In the civil law, 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.

See also Charitable deduction; Deductible; Marital de duction; Orphan's deduction. Itemized deductions. Those expenses which are allowed as deductions from adjusted gross income, itemized in detail under their appropriate captions, and subtracted to arrive at income subject to tax (e.g. taxes, charitable contributions, etc.). I.R.C. §§ 161-188. See also Deduct ible.

DEDUCTION Standard deduction. An option available to all individ ual taxpayers whereby they can deduct a specified amount from adjusted gross income instead of itemizing their deductions. This option is generally used by tax payers who do not have deductions which exceed the standard deduction assigned to them. The Tax Reform Act of 1986 changed the standard deduction amounts. The standard deduction amounts for 1989 and subse quent years are indexed for inflation. 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.

Deduction for new.

Deductions ac crued to the point of death but not recognizable on the final income tax return of a decedent because of the method of accounting used. Such items are allowed as deductions on the estate tax return and on the income tax return of the estate or the heir. An example of a deduction in respect of a decedent would be interest expense accrued up to the date of death by a cash basis debtor.

Deductions in respect of a decedent.

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. A written instrument, signed, and delivered, by which one person conveys land, tene ments, or hereditaments to another.

Deed.

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. 2 Bl.Comm. 295. A writing under seal by which lands, tenements, or hereditaments are conveyed for an estate not less than freehold. 2 Bl. Comm. 294. It is no longer necessary that the instru ment be sealed.

See also Ancient deed; Bargain and sale deed; Contract for deed; Quitclaim deed; Sheriff's deed; Special warranty deed; Tax deed; Trust (Trust deed); Warranty deed. Deed absolute. Deed which conveys absolute title as contrasted with mortgage deed which is defeasible on fulfillment of mortgage conditions. 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 indented, or indenture. In common-law conveyanc ing, 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

414 commonly by notching or nicking the paper at the edge. 2 Bl.Comm. 295, 296.

Deed in fee. A deed conveying the title to land in fee simple with the usual covenants. 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 distribution. Deed of fiduciary by which real estate of decedent is conveyed. Deed of gift. A deed executed and delivered without consideration. Deed of release. One releasing property from the incum brance 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 exe cuted, 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. 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. 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 pri vate affairs. They are now regulated by articles of association. Deed of trust. An instrument in use in some states, taking the place and serving the uses of a 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. Though differing in form from mortgage, it is essentially a security. In re Title Guaranty Trust Co., Mo.App., 113 S.W.2d 1053, 1057. See also Mortgage; Potomac mort gages; Trust ( Trust deed). Deed poll. A deed which is made by one party only. A deed in which only the party making it executes it or binds himself by it as a deed. 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 common law deed made before a fine or common recovery, to show the object thereof.

415 Defeasible deed. A deed containing a condition subse quent the happening of which will cause title to the property to revert to the grantor or to go to some third party. Gratuitous deed. One made without consideration. See Deed of gift above. Statutory deed. A warranty deed form prescribed by state statute. By statute in such states there are cer tain warranties and covenants that are legally regarded as being a part of all statutory deeds, although such are not included in the printed form. Wild deed. A deed not in the chain of title. An instrument which is recorded but, because some previ ous instrument connecting it to the chain of title has not been recorded, will never be discovered in the indexes. "Estoppel by deed" is a bar which precludes one party to a deed and his privies from asserting as against the other party and his privies any right or title in derogation of the deed or from denying the truth of any material facts asserted in it. Denny v. Wilson County, 198 Tenn. 677, 281 S.W.2d 671, 675. Such estoppel precludes a party from denying a certain fact recited in deed executed or accepted by him in an action brought on the deed by party who would be detrimentally affected by such denial. Cleveland Boat Service v. City of Cleveland, 102 Ohio App. 255, 130 N.E.2d 421, 425.

Deed, estoppel by.

De ejectione custodire /diy ;}jekshiyowniy k;}stowdiyiy /.

A writ which lay for a guardian who had been forcibly ejected from his wardship. De ejectione firmre / diy ;}jekshiyowniy f�rmiy /.

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 BI.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 general ly. 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. To hold; consider; adjudge; believe; condemn; determine; treat as if; construe.

Deem.

The person holding an interest in a trust the expiration of which will lead to the imposi tion of a generation-skipping tax. Assume, for example, GF creates a trust, income payable to S (GF's son) for life and, upon S's death, remainder to GS (GF's grand son). Upon S's death, he will be the "deemed transfer or" and the trust will be included in his gross estate for purposes of determining the generation-skipping trans fer tax. I.R.S. § 2612. See Generation-skipping trust.

Deemed transferor.

A person or corporation of substantial wealth and resources from which a claim or judgment may be made.

Deep pocket.

DE EXCOMMUNICATO RECAPIENDO Under the Ctdeep pocket" theory in antitrust law, parent corporation's substantial assets will have an im pact on competition in which subsidiary is engaged. U.S. v. Connecticut Nat. Bank, D.C.Conn., 362 F.Supp. 240, 277. A principle in bankruptcy law by which unfair or inequitable claims presented by control ling shareholders of bankrupt corporations may be sub ordinated to claims of general or trade creditors. The doctrine received its name from the corporate name of the subsidiary involved in the leading case articulating the doctrine. Taylor et al. v. Standard Gas & Electric Co. et aI., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669.

Deep Rock doctrine.

De escreta /diy ;}schiyt;}/ . Writ of escheat.

A writ which a lord had, where his tenant died without heir, to recover the land.

De escambio monetre / diy ;}skrembiyow m;}niytiy /.

A writ of exchange of money. An ancient writ to autho rize a merchant to make a bill of exchange (literas cambitorias facere). essendo quietum de tolonio / diy ;}sendow kwayiyt;}m diy t;}lowniyow /. A writ which lay for those who were by privilege free from the payment of toll, on their being molested therein.

De essonio de malo lecti / diy ;}sowniyow diy mrelow

lektay /. A writ which issued upon an essoin of malum lecti being cast, to examine whether the party was in fact sick or not. / diy est;}viriy;}s h;}bend;}s/ . Writ for having estovers. A writ which lay for a wife divorced a mensa et thoro , to recover her alimony or estovers. 1 BI.Comm. 441.

De estoveriis habendis

rye estrepamento /diy ;}strep;}mentow /.

A writ which lay to prevent or stay waste by a tenant, during the pendency of a suit against him to recover the lands.

De eu et trene /d;} yuw ey treyn/ .

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.

De eve et de treve / d;} ev ey d;} trev /.

A law French phrase, equivalent to the Latin de avo et de tritavo, descriptive of the ancestral rights of lords in their vil leins. Literally, "from grandfather and from great grandfather's great-grandfather." It occurs in the Year Books.

De excommunicato capiendo / diy eksk;}myuwn;}keytow

krepiyendow / . A writ commanding the sheriff to arrest one who was excommunicated, and imprison him till he should become reconciled to the church. 3 BI.Comm. 102. De excommunicato deliberando /diy eksk;}myuwn;}

keytow d;}lib;}rrendow /. A writ to deliver an excommu nicated person, who had made satisfaction to the church, from prison. 3 Bl.Comm. 102. De excommunicato recapiendo /diy eksk;}myuwn;}key

tow r;}krepiyendow /.

Writ for retaking an excommuni-

416

DE EXCOMMUNICATO RECAPIENDO cated person, where he had been liberated from prison without making satisfaction to the church, or giving security for that purpose. De excusationibus I diy �kskyuwzeyshiyown�b�s/. "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 I diy eks�kyuwshiyowiy fces(h)iy€md� in wi3�rneymiy�m/. Writ for making execution in withernam. A species of capias in withernam. De executione judicii I diy eks�kyuwshiyowniy juwdishi yay I. A writ directed to a sheriff or bailiff, command ing him to do execution upon a judgment. De exemplificatione I diy �gzempl�f�keyshiyowniyI. Writ of exemplification. A writ granted for the exem plification of an original. De exoneratione sectce Idiy �gzon�reyshiyowniy sektiyI. 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. De expensis civium et burgensium I diy �kspens�s siviy�m �t b�rjensiy�m/. An obsolete writ addressed to the sheriff to levy the expenses of every citizen and burgess of parliament. De expensis militum levandis I diy �kspens�s mil�t�m l�vrend�s/. Writ for levying the expenses of knights. A writ directed to the sheriff for levying the allowance for knights of the shire in parliament. Deface. To mar or destroy the face (that is, the physical appearance of written or inscribed characters as expres sive of a definite meaning) of a written instrument, signature, inscription, etc., by obliteration, erasure, can cellation, or superinscription, so as to render it illegible or unrecognizable. To mar, injure or spoil. State v. Kasnett, 30 Ohio App.2d 77, 283 N.E.2d 636, 638. Also used in respect of injury to monument, buildings and other structures. See Cancel; Defile; Desecrate; Mar; Mutilation; Obliteration.

De facto Idiy frektow/. 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 accept ed for all practical purposes, but is illegal or illegit imate. Thus, an office, position or status existing under a claim or color of right such as a de facto corporation. 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. MacLeod v. United States, 229 U.S. 416, 33 S.Ct. 955, 57 L.Ed. 1260. A wife de facto is one whose marriage is voidable by decree, as distinguished from a wife de jure, or lawful wife. 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 main tained, as distinguished from a mere paper blockade. Compare De jure. "De facto doctrine" will validate, on grounds of public policy and prevention of failure of public justice, the acts of officials who function under color of law. People v. Davis, 86 Mich.App. 514, 272 N.W.2d 707, 710. As to de facto Corporation; Court; Domicile; Govern ment, Merger, 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. De facto adoption. An agreement to adopt according to statutory procedures in a given state which will ripen into de jure adoption when the petition is properly presented. In The Matter of The Estate of Schultz, 220 Or. 350, 348 P.2d 22. An equitable adoption (q. v.). De facto contract I diy frektow kontrcekt/. One which has purported to pass the property from the owner to another but is defective in some element. De facto court. See Court. 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 govern ment by setting up its own in lieu thereof. Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1145. De facto judge. A judge who functions under color of authority but whose authority is defective in some pro cedural form. Riley v. Bradley, 252 Ala. 282, 41 So.2d 641. De facto marriage. A marriage in which the parties live together as husband and wife under color of validity but which is defective for reasons of form, etc. De facto officer. One who, while in actual possession of the office, is not holding such in a manner prescribed by law. Trost v. Tynatishon, 12 Ill.App.3d 406, 299 N.E.2d 14. De facto segregation. Segregation which is inadvertent and without assistance of school authorities and not caused by any state action, but rather by social, econom ic and other determinates. DeFunis v. Odegaard, 82 Wash.2d 11, 507 P.2d 1169. Compare De jure segrega tion.

De facto taking. This type of taking occurs when an entity clothed with power of eminent domain substan tially deprives an owner of the use and enjoyment of his property. City of Philadelphia v. Sorrentino, 95 Pa. Cmwlth. 236, 505 A.2d 373, 374. Such occurs in extraor-

417

DEFAULT.JUDGMENT

dinary circumstances when entity having power of emi nent domain substantially deprives property owner of right to beneficial use and enjoyment of property as consequence of nonappropriative rather than appropria tive act. In re Condemnation By Com., Dept. of Transp., 96 Pa.Cmwlth. 68, 506 A.2d 990, 993. De faire echelle /d� fer eyshel/.

In French law, a clause commonly inserted in policies of marine insur ance, equivalent to a license to touch and trade at intermediate ports.

Defalcation / diyfolkeysh�n/ .

The act of a defaulter; act of embezzling; failure to meet an obligation; misappro priation of trust funds or money held in any fiduciary capacity; failure to properly account for such funds. Commonly spoken of officers of corporations or public officials.

For purposes of Bankruptcy Code section making non dischargeable a debt resulting from fraud or defalcation by debtor while acting in fiduciary capacity, is failure to meet an obligation, misappropriation of trust funds or money held in any fiduciary capacity, and failure to properly account for such funds. In re Anderson, Bkrtcy.N.D.I1l., 64 B.R. 331, 334. Also set-off, recoupment or counterclaim. The dimi nution of a debt or claim by deducting from it a smaller claim held by the debtor or payor. See Defalk. To set off one claim against another; to deduct a debt due to one from a debt which one owes. This verb corresponds only to the second meaning of "defalca tion" as given above; i.e. a public officer or trustee who misappropriates or embezzles funds in his hands is not said to "defalk."

Defalk.

De falso judicio /diy f61sow juwdishiyow/ .

Writ of false

judgment. De falso moneta /diy f61sow m�niyt�/.

Of false money. The title of the English 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.

Defamacast / d�feym�krestl.

Defamation by broadcast. American Broadcasting-Paramount Theatres, Inc. v. Simpson, 106 Ga.App. 230, 126 S.E.2d 873, 879.

An intentional false communication, ei ther published or publicly spoken, that injures another's reputation or good name. Holding up of a person to ridicule, scorn or contempt in a respectable and consid erable part of the community; may be criminal as well as civil. Includes both libel and slander.

Defamation.

Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him. Statement which exposes person to contempt, hatred, ridicule or obloquy. McGowen v. Prentice, La. App., 341 So.2d 55, 57. The unprivileged publication of false statements which naturally and proximately result in injury to another. Wolfson v. Kirk, Fla.App., 273 So.2d 774, 776. Black's Law Dictionary 6th Ed.-10

To recover against a public official or public figure, plaintiff must prove that the defamatory statement was published with malice. Malice as used in this context means that it was published either knowing that it was false or with a reckless disregard as to whether it was true or false. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estima tion of the community or to deter third persons from associating or dealing with him. The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was in tended to express. Restatement, Second, Torts §§ 559, 563.

See also Actionable per quod; Actionable per se; Jour nalist's privilege; Libel; Slander. Calumnious; containing defamation; inju rious to reputation; libelous; slanderous. See Def

Defamatory.

amation.

Written, permanent form of def amation as contrasted with slander which is oral def amation. See Libel.

Defamatory libel.

Defamatory per quod / d�frem�toriy p�r kw6d/.

In re spect of words, those which require an allegation of facts, aside from the words contained in the publication, by way of innuendo, to show wherein the words used libel the plaintiff. See Actionable per quod.

Defamatory per se / d�frem�toriy p�r siy /.

words, those which by themselves, reference to extrinsic proof, injure person to whom they are applied. mers Mfg. Co., 228 Mo.App. 817, See Actionable per se. Defames / d�feymiyz/ .

In respect of and as such, without the reputation of the Conrad v. Allis-Chal 73 S.W.2d 438, 446.

L. Fr. Infamous.

By its derivation, a failure. An omission of that which ought to be done. Town of Milton v. Bruso, 111 Vt. 82, 10 A.2d 203, 205. Specifically, the omission or failure to perform a legal or contractual duty, Easter wood v. Willingham, Tex.Civ.App., 47 S.W.2d 393, 395; to observe a promise or discharge an obligation (e.g. to pay interest or principal on a debt when due), Bradbury v. Thomas, 135 Cal.App. 435, 27 P.2d 402; or to perform an agreement, Eastman v. Morgan, D.C.N.Y., 43 F.Supp. 637, 641. The term also embraces the idea of dishon esty, and of wrongful act, Greco v. S. S. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 562; or an act of omission discreditable to one's profession, Hilkert v. Canning, 58 Ariz. 290, 119 P.2d 233, 236.

Default.

Under the U.C.C. "default" is left undefined, §§ 9501-507, though it is precisely what the parties agree that it is. Borochoff Properties, Inc. v. Howard Lumber Co., 115 Ga.App. 691, 155 S.E.2d 651. Judgment entered against a party who has failed to defend against a claim that has been brought by another party. Under Rules of Civil Proce dure, when a party against whom a judgment for affirm ative relief is sought has failed to plead (i.e. answer) or

Default-judgment.

418

DEFAULT-JUDGMENT otherwise defend, he is in default and a judgment by default may be entered either by the clerk or the court. Fed.R.Civil P. 55. See also Judgment. One who is in default. One who misappro priates money held by him in an official or fiduciary character, or fails to account for such money.

Defaulter.

Defeasance /d�fiyz:ms/ .

An instrument which defeats the force or operation of some other deed, estate, or will. A collateral deed made at the same time with a feoff ment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated or totally undone. 2 Bl.Comm. 327.

An instrument accompanying a bond, recognizance, or judgment, containing a condition which, when per formed, defeats it. See also Defeasance clause; Defea sible. Defeasance clause. That provision in a mortgage which

assures the revesting of title in the mortgagor when all the terms and conditions of the mortgage have been met. A clause which permits the mortgagor-borrower to defeat the temporary and conditional conveyance by discharging the debt and thus causing a release of any interests in the real estate. 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 condi tional limitation. An estate which is not absolute, i.e., one which is determinable or subject to an executory limitation or condition subsequent. Usually spoken of estates and interests in land. For instance, a mortgag ee's estate is defeasible (liable to be defeated) by the mortgagor's equity of redemption. An estate in fee that is liable to be defeated by some future contingency; e.g., a vested re mainder which might be defeated by the death of the remainderman before the time fixed for the taking ef fect of the devise. Giltner's Trustee v. Talbott, 253 Ky. 474, 69 S.W.2d 981.

Defeasible fee.

One that is liable to be annulled or made void, but not one that is already void or an absolute nullity.

Defeasible title.

Gift over to remainder man which, though not subject to condition precedent as in the case of a contingent remainder, is subject to divestment on the happening of a condition subsequent.

Defeasibly vested remainder.

Describes counterclaim which, if it prevails, will defeat right of plaintiffs to recover. Hayden v. Collins, 90 Utah 238, 63 P.2d 223, 225.

Defeasive.

To prevent, frustrate, or circumvent; as in the phrase "hinder, delay, or defeat creditors." To over come or prevail against in any contest; as in speaking of the "defeated party" in an action at law, or "defeated candidate" in an election. Norcop v. Jordan, 216 Cal. 764, 17 P.2d 123, 124.

Defeat.

To annul, undo, or terminate; as, a title or estate. See Defeasible.

The want or absence of some legal requisite; deficiency; imperfection; insufficiency. Galloway v. City of Winchester, 299 Ky. 87, 184 S.W.2d 890, 892, 893. The absence of something necessary for completeness or perfection; a deficiency in something essential to the proper use for the purpose for which a thing is to be used. Some structural weakness in part or component which is responsible for damage. Egan v. Washington General Ins. Corp., Fla.App., 240 So.2d 875, 877. In a strict liability action, may consist of a manufacturing flaw, a design defect, or an inadequate warning. Butler v. PPG Industries, Inc., 201 N.J.Super. 558, 493 A.2d 619, 621. See also Apparent defects; Defective; Hidden

Defect.

defect; Latent defect.

Design defect. A "design defect" occurs when product is manufactured in conformity with intended design but design itself poses unreasonable dangers to consumers. Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843, 846. Fatal defect. tract.

Of such serious nature as to nullify con

Latent defect. One which is not apparent to buyer by reasonable observation. Patent defect. One which is apparent to buyer on nor mal observation. Defect in highway or street.

Ordinarily anything in the condition of 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.

Lacking in some particular which is essential to the completeness, legal sufficiency, or security of the object spoken of; as a "defective" service of process or return of service. A product is "defective" if it is not fit for the ordinary purposes for which such articles are sold and used, Manieri v. Volkswagenwerk, A.G., 151 N.J.Super. 422, 376 A.2d 1317, 1322; or if it is danger ous because it fails to perform in manner to be expected in light of its nature and intended function, Knapp v. Hertz Corp., 17 Ill.Dec. 65, 59 Ill.App.3d 241, 375 N.E.2d 1349, 1353. See also Defect; Warranty.

Defective.

A product is in a defective condi tion unreasonably dangerous to the user when it has a propensity for causing physical harm beyond that which would be contemplated by the ordinary user or consum er who purchases it, with the ordinary knowledge com mon to the foreseeable class of users as to its character istics. A product is not defective or unreasonably dan gerous merely because it is possible to be injured while using it. Moomey v. Massey-Ferguson, Inc., C.A.N.M., 429 F.2d 1184. See Strict liability.

Defective condition.

Failure to comply with require ments in executing document with the result that doc ument is legally inadequate or defective.

Defective execution.

Complaint, answer, cross-claim, counterclaim, etc. which fail to meet minimum stan dards of sufficiency or accuracy in form or substance. Such defects may usually be cured by amendment. Fed. R.Civil P. 15.

Defective pleadings.

419 Defective product.

DEFENSE See Defect; Defective.

May refer to record on appeal which does not conform to requisites of appellate rules. May also refer to state of title to real estate based on defects on the record in registry of deeds.

Defective record.

Defective title. With respect to negotiable paper within

U.C.C. Article 3 (§ 3-201) 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. See also Title (Defective title); U nmarketable

defend the donee, if any one go about to lay any incum brance on the thing given other than what is contained in the deed of donation. (Fr.) To deny; to defend; to conduct a suit for a defendant; to forbid; to prevent; to protect. See

Defender.

Public defender.

In Scotch and canon law, a defendant. Defendere se per corpus suum / d�fend�riy siy p�r

k6rp�s s(y)uw�m/. To offer duel or combat as a legal trial and appeal. Abolished by 59 Geo. III, § 46. See Battel. unica manu / d�fend�riy (siy) yuwn�k� mren(y)uw/. To wage law; a denial of an accusation upon oath. See Wager of law.

title.

Defendere

Verdict lacking legitimacy because of some irregularity or inadequacy and hence one on which a judgment may not be based.

Defender of the faith. A peculiar title belonging to the

Defective verdict.

An imperfection in the style, manner, arrangement, or non-essential parts of a legal instru ment, plea, indictment, etc., as distinguished from a "defect of substance" (q. v.).

Defect of form.

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. Rules of Civil Procedure have relaxed some of the former rigidity in require ments of joinder, but not all. Fed.R.Civ.P., Rules 19, 20. See Joinder.

Defect of parties.

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.

Defect of substance.

Defectus / d�fekt�s/ .

Lat. Defect; default; want; im perfection; 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. To oppose, repel, or resist. To protect, to shield, to make a stand for, or uphold by force or argument. To vindicate, to maintain or keep secure, to guaranty, to agree to indemnify. To represent defen dant in administrative, civil or criminal proceeding. See also Defense.

Defendant. The person defending or denying; the party

against whom relief or recovery is sought in an action or suit or the accused in a criminal case. See also Joint defendants; Nominal defendant. Defendare / def�nderiy /.

To answer for; to be respon

sible for. Defendemus / def�niym�s/.

Lat. A word used in grants and donations, which binds the donor and his heirs to

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. Defendit vim et injuriam / d�fend�t vim et injuriy�m/.

He defends the force and injury. Defendour / deyfondur /.

L. Fr. A defender or defen dant; the party accused in an appeal.

Defeneration / d�fen�reysh�n/.

The act of lending mon

ey on usury. / diyfen�streysh�n/ . Act of throwing something or somebody out of a window.

Defenestration

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. That which is put forward to diminish plaintiffs cause of action or defeat recovery. Evidence offered by accused to defeat criminal charge.

Defense.

With respect to defenses to a commercial instrument of which a holder in due course takes free, the term "defense" means a legally recognized basis for avoiding liability either on the instrument itself or on the obli gation underlying the instrument. A response to the claims of the other party, setting forth reasons why the claims should not be granted. The defense may be as simple as a flat denial of the other party's factual allegations or may involve entirely new factual allegations. In the latter situation, the defense is an affirmative defense. Under Rules of Civil Procedure, many defenses may be raised by motion as well as by answer (Rule 12(b), while others must be pleaded affirmatively (Rules 8(c), 9). See Affirmative de fense; Answer; Equitable defense; Justification.

As regards defense to criminal charge, such defenses include alibi, consent, "corporate" liability defenses, de minimis infraction, duress, entrapment, ignorance or mistake, infancy, insanity, intoxication, law enforce ment authority, necessity, protection of property, public

DEFENSE duty, legal impossibility, self defense and protection of others. Defense also means the forcible repelling of an attack made unlawfully with force and violence, such as the defense of one's person or property or nation in time of war. See Self-defense.

Affidavit of defense. See Affidavit. Frivolous defense. One which at first glance can be seen to be merely pretensive, setting up some ground which cannot be sustained by argument. On motion, such defense may be ordered stricken from the pleadings. Fed.R.Civil P. 12(f). Legal defense. A defense which is complete and ade quate in point of law. A defense which may be set up in court of law, as distinguished from an "equitable de fense", which is cognizable only in a court of equity or court possessing equitable powers. This later distinction is no longer applicable with the procedural merger of law and equity under Rules of Civil Procedure. Meritorious defense. One going to the merits, substance, or essentials of the case, as distinguished from dilatory or technical objections. For purposes of vacating default judgment is defense presumptively established when al legations of defendant's answer, if established on trial, would constitute a complete defense to the action, and defendant need not establish its defense beyond doubt in its pleading. Hritz v. Woma Corp., C.A.Pa., 732 F.2d 1178, 1181. 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.

420 Sham defense. A false or fictitious defense, interposed in bad faith, and manifestly untrue, insufficient, or irrelevant on its face. Lawyer who files appearance in be half of defendant and represents such in civil or crimi nal case. See Public defender.

Defense attorney.

Defense au fond en droit / deyfons ow fond on dr(w)6I.

(Called, also, defense en droit). A demurrer. Defense au fond en fait / deyfons ow fond on fey/. Defense bonds.

Vnited States Savings Bonds.

In criminal law, right to use force to defend one's home; interposed in criminal case in defense of crime. See Defense of property.

Defense of habitation.

In criminal cases, an affirmative defense interposed to prove that defendant lacked essen tial mental capacity which is required for criminal re sponsibility. Model Penal Code, § 4.01. Fed.R.Crim.P. 12.2 requires the defendant to notify the prosecutor prior to trial of intention to assert such defense. See

Defense of insanity.

Insanity.

A justification defense available when one harms or threatens another in defense of a person other than oneself. See e.g., Model Penal Code § 3.05. See also Self-defense.

Defense of others.

Affirmative defense in criminal case consisting of justified force in protecting one's prop erty though such force must be reasonable under all circumstances.

Defense of property.

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.

Defense of self. See Self-defense.

Personal defense. In negotiable instruments law, a de fense 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 defens es. V.C.C. § 3-305.

Defensive allegation.

Pretermitted defense. One which was available to a party and of which he might have had the benefit if he had pleaded it in due season, but which cannot after wards be heard as a basis for affirmative relief.

Defensive collateral estoppel.

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 infancy, and such other incapacity, or duress, or illegality of the transaction, as renders the obligation of the party a nullity, and fraud in the factum. These defenses are good even against a holder in due course because, where they exist, no contract was formed. V.C.C. § 3-305(2). See also Real defenses.

Self defense. See Self-defense.

The

general issue.

Defensiva /der:msayv�/ .

In old English law, a lord or earl of the marches, who was the warden and defender of his country.

In English ecclesiastical law, a species of pleading, where the defendant, instead of denying the plaintiffs charge upon oath, has any cir cumstances to offer in his defense. This entitles him, in his turn to the plaintiffs answer upon oath, upon which he may proceed to proofs as well as his antagonist. 3 Bl.Comm. 100.

Doctrine precluding plaintiff from relitigating identical issues by merely switching adversary; thus, defensive collateral estoppel gives plaintiff strong incentive to join all possible defen dants in first action if possible. Baron v. Bryant, D.C. Hawaii, 556 F.Supp. 531, 536. See also Collateral estop pel.

Defenso / d�fensow/.

In old England, 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 an ciently 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.

421

DEFICIENCY

Canon law. The advocate or patron of a church. An officer who had charge of the temporalities of the church. Civil law. A defender; one who assumed the defense of another's case in court. Also an advocate. A tutor or curator. Old English law. A guardian, defender, or protector. The defendant in an action. A person vouched in to warranty. Defensor civitatis / d;;,fens;;,r siv;;,teyt;;,s/.

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. He had the powers of a judge, with jurisdiction of pecuniary causes to a limited amount, and the lighter species of offenses. 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 / d;;,fens;;,r faydiyay /.

Defender of the

faith. See Defender. Defensum / d;;,fens;;,m/.

A prohibition. An inclosure of land; any fenced ground. See Defenso. 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.

Defer.

A postponement or extension to a later time as in the case of one called to serve in the Armed Forces. See 50 U .S.C.A. § 456.

Deferment.

Deferral.

Act of delaying, postponing or putting off.

Deferral of taxes. Postponement of taxes from one year

to a later year. For example, individuals can defer taxes by contributing money to an individual retirement account (where contributions, as well as any earnings on the contributions, are taxed only when actually with drawn from the IRA). Within meaning of Age Discrimination in Employment Act is state which has its own anti-dis crimination legislation and enforcement mechanism. E.E.O.C. v. Chrysler Corp., D.C.Mich., 546 F.Supp. 54, 64.

Deferral state.

Time span within which payment of expense, premium, interest, or the like, is delayed or in which income is postponed. See also Grace period.

Deferral period.

An agreement in which the terms require payment to begin after a certain period of time has elapsed; e.g., payment will begin when the annuitant reaches the age of 60. See Annuity.

Deferred annuity contract.

Expense not recognized currently on the income statement and which is carried on the bal ance sheet; e.g. discount on bonds. Expenditure not recognized as an expense of the period when made but carried forward as an asset to be written off in future periods, such as for advance rent payments or insurance premiums.

Deferred charge.

Claims which are postponed to a future date or to a subsequent accounting period.

Deferred claims.

Compensation that will be taxed when received and not when earned. An example is contributions by an employer to a qualified pension or profit-sharing plan on behalf of an employee. Such contributions will not be taxed to the employee until the funds are made available or distributed to the employee (e.g., upon retirement).

Deferred compensation.

Nonqualified deferred compensation plans. Compensa tion arrangements which are frequently offered to exec utives. Such plans may include stock options, restricted stock, etc. Generally, an executive may defer the recog nition of taxable income to future periods and the em ployer does not receive a tax deduction until the employ ee is required to include the compensation in income. Credits which are required to be spread over subsequent accounting periods such as the premium on bonds issued.

Deferred credits.

Income received but not yet earned, i.e., prepaid rent or insurance. Deferred income is re corded as a liability on the balance sheet until such time as the income is earned and recorded as revenue.

Deferred income.

Bonds which carry a provi sion that interest payments are postponed for a certain period of time.

Deferred interest bonds.

Lien postponed or delayed in its effect until a future time as contrasted with a present lien; usually possessory in nature.

Deferred lien.

Payments of principal or interest postponed to a future time; installment payments. See also Deferred income.

Deferred payments.

A sentence, the pronouncement of which has been postponed. It does not operate as a suspension of sentence. See Probation.

Deferred sentence.

Deferred stock.

See Stock.

Defiance / d;;,fay;;,ns/.

A contemptuous opposition or dis regard openly expressed in words or action. State v. Mohar, 169 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. Defiant challenge or opposition to authority. A lack, shortage, or insufficiency. The amount by which the tax properly due exceeds the sum of the amount of tax shown on a taxpayer's return plus amounts previously assessed or collected as a deficiency, less any credits, refunds or other payments due the taxpayer; i.e., the amount a taxpayer is deficient in his tax payments. See Deficiency assessment; Deficiency

Deficiency.

notice.

That part of a debt secured by mortgage not realized from sale of mortgaged property. A judgment or decree for the amount of such deficiency is called a "deficiency judgment" or "decree." See Deficiency judgment.

DEFICIENCY ASSESSMENT In taxation, the excess of the amount of tax computed by the Internal Revenue Ser vice over the amount computed by the taxpayer. I.R.C. § 6211 et seq. See also Deficiency; Deficiency notice;

Deficiency assessment.

Jeopardy assessment. Deficiency bill. In parliamentary practice, an appropri

ation bill covering items of expense omitted from the general appropriation bill or bills, or for which insuffi cient appropriations were made. If intended to cover a variety of such items, it is commonly called a "general deficiency bill"; if intended to make provision for ex penses which must be met immediately, or which cannot wait the ordinary course of the general appropriation bills, it is called an "urgent deficiency bill." Deficiency dividends.

See Dividend.

In mortgage law, imposition of personal liability on mortgagor for unpaid balance of mortgage debt after foreclosure has failed to yield full amount of due debt. In re Pittsburgh-Duquesne Devel opment Co., C.A.Pa., 482 F.2d 243, 246. If a foreclosure sale yields less than the mortgage debt, most states permit the mortgagee to obtain a judgment for the difference. Such deficiency judgments are subject, how ever, to a substantial amount of statutory regulation. May also apply to debt due after repossession of person al property subject to security interest. See also Judg

Deficiency judgment.

ment.

Notice of tax deficiency (90 day letter) which is mailed to taxpayer by I.R.S. and which is prerequisite to jurisdiction of Tax Court. I.R.C. § 6212. See also Ninety day letter.

Deficiency notice.

In mortgage law, action to recover difference between debt and amount realized on fore closure. See also Deficiency judgment.

Deficiency suits.

An excess of expenditures over revenues. Ex cess of liabilities and debts over income and assets. A negative balance in the earnings and profits account. Financial loss in operation of business. Something wanting, generally in the accounts of one intrusted with money, or in the money received by him. The term is broad enough to cover defalcation, misappropriation, shrinkage, or costs, and, in its popular meaning, signi fies deficiency from any cause. In accounting, opposite of surplus on the balance sheet. May represent accumulated losses. A negative balance in the earnings and profits acco�nt.

Deficit.

Expenditures in excess of income; usually from borrowed funds rather than from actual revenues or surplus.

Deficit spending.

422 impugned for error either of law or fact. 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. 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. De fidei lresione Idiy faydiyay liyz(h)iyowniy I.

breach of faith or fidelity. To corrupt purity or perfection of; to debase; to make ceremonially unclean; to pollute; to sully; to dishonor. State v. Kasnett, 30 Ohio App.2d 77, 283 N.E.2d 636, 638. 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. See also Desecrate.

Defile.

Defilement Id�faylm�nt/.

Uncleanness; impurity; cor ruption of morals or conduct. To explain or state the exact meaning of words and phrases; to state explicitly; to limit; to determine essential qualities of; to determine the precise significa tion of; to settle; to establish or prescribe authoritative ly; to make clear. Walling v. Yeakley, C.C.A.Colo., 140 F.2d 830, 832. To declare that a certain act shall constitute an offense is defining that offense. U. S. v. Arjona, 120 U.S. 479, 7 S.Ct. 628, 30 L.Ed. 728. See also

Define.

Definition.

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 al ready is not "defining." Redlands Foothill Groves v. Jacobs, D.C.Cal., 30 F.Supp. 995, 1004. De fine force Idiy fayniy fors/ .

pure necessity.

L. Fr. Of necessity; of

See Fine-force.

De ime non capiendo pro pulchre placitando I diy

fayniy non krepiyendow prow p�lkriy plres�trendow I. A writ prohibiting the taking of fines for beau pleader.

De fide et officio judicis non recipitur qurestio, sed de

De ime pro redisseisina capiendo Idiy fayniy prow

scientia, sive sit error juris, sive facti I diy faydiy et

riyd�siyz�n� krepiyendow I. A writ which lay for the release of one imprisoned for a re-disseisin, on payment of a reasonable fine.

�fishiyow juwd�s�s non r�sip�t�r kwes(h)t(iy)ow, sed diy sayensh(iy)�, sayviy sit ehr�r jur�s sayviy frektay/ . Con cerning the fidelity and official conduct of a judge, no question is [will be] entertained; but [only] concerning his knowledge whether the error [committed] be of law or of fact. The bona fides and honesty of purpose of a judge cannot be questioned. but his decision may be ,

De finibus levatis Idiy fayn�b�s l�veybs/.

Concerning fines levied. The title of the English statute 27 Edw. I, requiring fines thereafter to be levied. to be read openly and solemnly in court.

423 Definite.

DE GRATIA Fixed, determined, defined, bounded.

Sentence calling for imprisonment for specified number of years as contrasted with indeter minate sentence which leaves duration to prison author ities (e.g. parole boards) and good behavior of prisoner. Also called "determinate sentence".

Definite sentence.

Definitio / def;mish(iy)ow/ .

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, i.e., the attempt to bring the law within the boundaries of precise definitions is hazard ous, as there are but few cases in which such a limita tion cannot be subverted.

A description of a thing by its properties; an explanation of the meaning of a word or term. The process of stating the exact meaning of a word by means of other words. Such a description of the thing defined, including all essential elements and excluding all nones sential, as to distinguish it from all other things and classes. See also Define.

Definition.

That which finally and completely ends and settles a controversy. For example, a definitive sen tence or judgment as opposed to an interlocutory judg ment. See Definite sentence.

Definitive.

Definitive sentence.

See Definite sentence.

Decline in price of goods and services. Com pare Disinflation.

Deflation.

To turn aside, to deviate from a straight or horizontal line or from a proper position, to swerve.

Deflect.

Defloration /diyfl;m�ysh;m/.

Seduction or debauching. The act by which a woman is deprived of her virginity. In old English law, to withhold wrongfully; to withhold the possession of lands from one who is lawful ly entitled to them. 3 Bl.Comm. 172.

Deforce.

Deforcement is where a man wrongfully holds lands to which another person is entitled. It therefore includes disseisin, abatement, discontinuance, and intrusion. But it is applied especially to cases, not falling under those heads, where the person entitled to the freehold has never had possession. 3 Bl.Comm. 172. Also, to detain dower from widow.

Deforcement.

Deforciant / diyf6rsh:mt/.

One who wrongfully keeps the owner of lands and tenements out of the possession of them. 2 Bl.Comm. 350.

Deforciare / d�fors(h)iyeriy/ .

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.

Deforciatio / d�fors(h)iyeysh(iy)ow /.

L. Lat. In old Eng lish law, a distress, distraint, or seizure of goods for satisfaction of a lawful debt.

De forisfactura maritagii / diy for�sfrekchur� mrer�tey

jiyay/. Writ of forfeiture of marriage. A deformed or misshapen condition; an unnatural growth, or a distorted or misshapen part or member; disfigurement, as a bodily deformity.

Deformity.

Defossion / d�f6sh�n/.

The punishment of being buried

alive. De frangentibus prisonam / diy frcimjent�b�s priz�n�m/.

Concerning those that break prison. The title of the English 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. To make a misrepresentation of an existing material fact, knowing it to be false or making it reck lessly without regard to whether it is true or false, intending one to rely and under circumstances in which such person does rely to his damage. To practice fraud; to cheat or trick. To deprive a person of property or any interest, estate, or right by fraud, deceit, or artifice. See also Collusion; Deceit; Fraud; Material fact; Misrepre

Defraud.

sentation.

Intent to defraud means an intention to deceive anoth er person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property. Defraudation.

Privation by fraud.

Having ceased to exist; no longer operative. Deceased; a deceased person. A business which has ceased to function.

Defunct.

Defunctus / d�f;}lJ(k)t�s/ .

Lat. Dead. prole," dead without (leaving) issue.

"Defunctus sine

De furto / diy f;}rtow / .

Of theft. One of the kinds of criminal appeal formerly in use in England.

Degaster /deygrestey/ .

L. Fr. To waste.

De gestu et fama /diy jestyuw �t feym�/ .

Of behavior and reputation. An old writ which lay in cases where a person's conduct and reputation were impeached. A deprivation of dignity; dismissal from rank or office; act or process of degrading. Moral or intellectual decadence; degeneration; deterioration.

Degradation.

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 orna ments 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 was likewise a degradation of a lord or knight at common law, and also by act of parliament. Degradations / degr�deysh�nz/. A term for waste in the

French law. Degrade. See Degradation.

Reviling; holding one up to public obloquy; lowering a person in the estimation of the public; expos ing to disgrace, dishonor, or contempt.

Degrading.

De gratia /diy greysh(iy)�/ .

Of grace or favor, by favor. De speciali gratia, of special grace or favor.

DEGREE Degree. Extent, measure or scope of an action, condition

or relation. Legal extent of guilt or negligence. Title conferred on graduates of school, college, or university. The state or civil condition of a person. The grade or distance one thing may be removed from another; 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. That measure of cogency required to prove a case depending upon the nature of the case. In a criminal case such proof must be beyond a reasonable doubt, whereas in most civil cases such proof is by a fair preponderance of the evidence. See also Burden of proof; Proof (Proof beyond a reasonable doubt); Preponderance

Degree of proof.

of evidence; Reasonable doubt.

A term used to refer to similar conduct that is punished to a greater or a lesser extent depending on the existence of one or more factors. A division or classification of one specific crime into sever al grades or stadia of guilt, according to the circum stances attending its commission. For example, in most states there are degrees of murder as "first" and "sec ond" degree murder. Also, a division of crimes general ly. Thus, a felony is punishable by imprisonment in state prison whereas a misdemeanor carries a maximum punishment of a short term sentence to a jail or house of correction and/or a fine. In some jurisdictions there are also petty misdemeanors. In addition, criminal codes in certain states classify felonies and misdemeanors into classes (e.g. class A, B, etc.) with corresponding punish ment or sentencing categories. See also Classification of

Degrees of crime.

crimes; Crime.

The relationship between a deceased and the survivors which govern descent and distribu tion. See also Descent.

Degrees of kin.

The different grades of negli gence which govern the liability of persons; e.g. ordi nary negligence as contrasted with gross negligence. See Negligence.

Degrees of negligence.

De hrerede deliberando illi qui habet custodiam terrre

I diy h;}riydiy d;}lib;}rrendow Hay kway heyb;}t k;}stow diy;}m tehriy/ . 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. De hrerede rapto et abducto I diy h�riydiy rreptow et

�bd�ktow/. Writ concerning an heir ravished and car ried 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. De hreretico comburendo Idiy h�ret�kow komb(y)�r€m

dow I. (Lat. For burning a heretic.) An ancient writ which formerly issued from the secular courts for the execution, by burning, of a heretic, who had been con victed in the ecclesiastical courts of heresy, had abjured,

424 and had relapsed into heresy.

4 Bl.Comm. 46.

See

Hreretico comburendo. De homagio respectuando Idiy h�meyjiyow r�spek

tyuwrendow I. age.

A writ for respiting or postponing hom

De homine capto in withernam I diy hom�niy kreptow

�n wid;}rn�m/. (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 Idiy hom�niy r�pliyjiyrendowI.

(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. 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. Dehors Id�hor/diyhorz/.

L. Fr. Out of; without; be yond; 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.

De identitate nominis I diy �dent�teytiy nom;}n;}s/.

A writ which lay for one arrested in a personal action and committed to prison under a mistake as to his identity, the proper defendant bearing the same name.

Dei gratia Idiyay greysh(iy);}/ .

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 incorporat ed in the titles of inferior officers (especially ecclesiasti cal), but in later use was reserved as an assertion of "the divine right of kings."

De iis qui ponendi sunt in assisis I diy ay�s kway

p;}n{mday s;)nt �n ;}sayz�s/. Of those who are to be put on assises. The title of a statute passed 21 Edw. I, defining the qualifications of jurors. Dei judicium Idiyay juwdish(iy)�m/.

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 accord ing to the will and pleasure of Divine Providence.

De incremento Idiy il)kr;}mentow I.

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.

De ingressu Idiy �l)gres(y)uw/. De injuria Idiy injuriy�/.

A writ of entry.

Of [his own] wrong. In the technical language of common law pleading, a replica tion de injuria is one that may be made in an action of tort where the defendant has admitted the acts com plained 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 griev ances in question "of hiS own wrong, and without any ,

425

DELECTUS PERSONtE

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 caused 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. Such technical pleading no longer exists under current rules practice. De inofficioso testamento I diy in�fis(h)iyowsow tes

t�m€mtow I. Concerning an inofficious or undutiful wilL A title of the civil law. De integro Idiy int�grow/.

Anew; a second time. As it

was before. De intrusione I diy �ntruwzhiyowniy I.

A writ of intru sion; where a stranger entered after the death of the tenant, to the injury of the reversioner.

Dejaci6n I deyhasyown/.

In Spanish law, surrender; re lease; 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 abandon ment of insured property to the underwriters.

De jactura evitanda Idiy jrektyur� ev�trend�/ .

For avoiding a loss. A phrase applied to a defendant, as de lucro captando is to a plaintiff.

Dejeration Idiyj�reysh�n/.

A taking of a solemn oath.

De jure I diy juriy I.

Descriptive of a condition in which there has been total compliance with all requirements of law. Of right; legitimate; lawful; by right and just title. In this sense it is the contrary of de facto (q. v.). 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 requitate; here meaning "by law," as the latter means "by equity." Corporation which has been cre ated as result of compliance with all of the constitution al or statutory requirements of state of incorporation. Harris v. Stephens Wholesome Bldg. Supply Co. Inc., 54 Ala.App. 405, 309 So.2d 115.

De jure corporation.

De jure decimarum, originem ducens de jure patro natus, tunc cognitio spectat at legem civilem, i.e.,

With regard to the right of tithes deduc ing its origin from the right of the patron, then the cognizance of them belongs to the civil law; that is, the common law.

communem.

De jure government.

See Government.

De jure judices, de facto juratores respondent Idiy

juriy juwd�siyz, diy frektow jur�toriyz r�spond�nt/. The judges find the law, the jury the facts. Generally refers to segregation directly intended or mandated by law or otherwise issu-

De jure segregation.

ing from an official racial classification or in other words to segregation which has or had the sanction of law. Term comprehends any situation in which the activi ties of school authorities have had a racially discrimina tory impact contributing to the establishment or contin uation of a dual system of schools, while "de facto segregation" is limited to that which is inadvertent and without the assistance or collusion of school authorities. State ex reL Citizens Against Mandatory Bussing v. Brooks, 80 Wash.2d 121, 492 P.2d 536, 542.

Compare De facto segregation. De la pluis beale, or belle Id� la pl(y)uw bell.

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.

De latere I diy lret�riy I.

From the side; on the side; collaterally; of collaterals.

Delatio Id�leysh(iy)ow/.

In the civil law, an accusation

or information. Delator I d�leyd�r I.

An accuser; an informer; a syco

phant. Delatura Id�l�tyur�/ .

In old English law, the reward of

an informer. To retard; obstruct; put off; postpone; defer; procrastinate; prolong the time of or before; hinder; interpose obstacles; as, when it is said that a convey ance was made to "hinder and delay creditors." The term does not necessarily, though it may, imply dishon esty or involve moral wrong.

Delay.

Rent, usually on oil and gas leases, paid for additional time in which to utilize land. Periodic payments, usually annual, by oil and gas lessee for privilege of deferring exploration during primary term of lease. Amber Oil and Gas Co. v. Bratton, Tex.App. Austin, 711 S.W.2d 741, 743. It does not depend on oil or gas produced, does not exhaust substance of land, and resembles a bonus payment, which is an advance royal ty. 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.

Delay rental.

Del bien estre Idel biyn e(s)tr�/.

practice, of well being; of form. esse.

L. Fr. In old English The same as de bene

Del credere Idel kreyd�rey I.

An agreement by which a factor, when he sells goods on credit, for an additional commission (called a "del credere commission"), guaran ties 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. Agent who is obligated to indemnify his principal in event of loss to principal as result of credit extended by agent to third party.

Delectus personre I d�lekt�s p�rsowniy I.

Lat. Choice of the person. By this term is understood the right of a partner to exercise his choice and preference as to the

DELECTUS PERSONJE

426

admission of any new members to the firm, and as to the persons to be so admitted, if any. The doctrine is equally applicable to close and family corporations and is exemplified in the use of restrictions for the transfer of shares of stock. An obligation which may be performed by another. Some duties are not delegable such as those which are highly personal, e.g. , contract to sing for another. Contract rights are delegable in most instanc es. See U.C.C. § 2-210(1).

Delegable duty.

Delegata

potestas

non potest

p�testres non p6wt�st del�geray/ . cannot be delegated.

/ del�geyt� A delegated power

delegari

A person who is appointed, authorized, del egated or commissioned to act in the stead of another. Landro v. Pacific Atlantic S. S. Co., D.C.Wash., 30 F.Supp. 538, 539. Transfer of authority from one to another. A person to whom affairs are committed by another.

Delegate.

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 convention. Person selected by a constituency and authorized to act for it at a party or State political convention. As a verb, it means to transfer authority from one person to another; to empower one to perform a task in behalf of another, e.g. , a landlord may delegate his agent to collect rents.

See also Delegable duty; Delegation. 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.

Delegates, the high court of.

A sending away; a putting into commis sion; the assignment of a debt to another; the intrust ing another with a general power to act for the good of those who depute him; a body of delegates. The trans fer of authority by one person to another. The act of making or commissioning a delegate.

Delegation.

The body of delegates from a State to a national nominating convention or from a county to a State or other party convention. The whole body of delegates or representatives sent to a convention or assembly from one district, place, or political unit are collectively . spo ken of as a "delegation." In 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 him self in his stead to the creditor, or to the person appoint ed by him so that the first debtor is acquitted and his obligation extinguished, and the creditor contents him self 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. 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. Perfect delegation ex ists when the debtor who makes the obligation is dis charged by the creditor. Imperfect delegation exists when the creditor retains his rights against the original debtor. Transfer of authority by one branch of government in which such authority is vested to some other branch or administrative agency.

Delegation of powers.

U.S. Constitution delegates different powers to the executive, legislative and judicial branches of govern ment. Exercise by the executive branch of the powers delegated to the legislative branch offends this separa tion and delegation of powers and hence is unconstitu tional. Schechter Poultry Corp. v. U. S., 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570. Certain powers may not be delegated from one branch of government to another such as the judicial powers or such congressional powers as power to declare war, impeach, or admit new states. For distinction between delegated powers and various other types of constitutional powers, see Power (Constitu tional powers). De legatis et fidei commissis /diy l�geyt�s et faydiyay

k�mis�s/. Of legacies and trusts. The name of a title of the Pandects. Delegatus non potest delegare /del�geyt�s non p6wd�st

del�geriy /. A delegate cannot delegate; an agent can not 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. Delete / d�liyt/.

To erase; to remove; to strike out.

Deleterious /del�tiriy�s/.

Hurtful, morally or physical ly; injurious, as influence; poisonous; unwholesome.

De libera falda /diy lib�r� f6Id�/.

Writ of free fold. A

species of quod permittat. De libera piscaria /diy lib�r� p�skeriy�/.

Writ of free

fishery. A species of quod permittat. v. To weigh, ponder, discuss, regard upon, consider. To examine and consult in order to form an opinion. 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 Cal.2d 880, 156 P.2d 7, 17, 18. See also Deliberation.

Deliberate,

Well advised; carefully considered; not sudden or rash; circumspect; slow in determining. Willful rather than merely intentional. Formed, ar rived 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, espe cially 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

Deliberate, adj.

427

DELIMITATION

step; slow in action; unhurried; characterized by reflec tion; dispassionate; not rash. People v. Thomas, 25 Ca1.2d 880, 156 P.2d 7, 17, 18.

De libertatibus allocandis

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 mo tives and consequences. See also Deliberation; Premedi

tation.

Willfully; with premeditation; intention ally; purposely; in cold blood. Averheart v. State, 158 Ark. 639, 238 S.W. 620, 621.

Deliberately.

Phrase used in mandate to deseg regate public schools and means such speed as is consist ent with the welfare of all people of the state, with the maintenance of law and order and with the preserva tion, if possible, of the common school system. Calhoun v. Members of Bd. of Ed., City of Atlanta, D.C.Ga., 188 F.Supp. 401, 404; Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873.

Deliberate speed.

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.

Deliberation.

In the context of jury function means that a properly formed jury, comprised of the number of qualified per sons required by law, are within the secrecy of jury room analyzing, discussing and weighing evidence which they have heard with a view to reaching a verdict based upon law applicable to facts of case as they find them to be; such deliberation can only be carried on by a lawful number of jurors in the presence of all. Rushing v. State, Tenn.Cr.App., 565 S.W.2d 893, 895. As used in context of an essential element of first-de gree murder, is a weighing in the mind of consequences of course of conduct, as distinguished from acting upon a sudden impulse without exercise of reasoning powers. Davis v. State, 251 Ark. 771, 475 S.W.2d 155, 156. For purposes of first-degree murder statute, "delibera tion" means intent to kill carried out by defendant in cool state of blood, in furtherance of fixed design for revenge or to accomplish unlawful purpose and not under influence of violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Ham let, 312 N.C. 162, 321 S.E.2d 837, 842. See also Deliberate; Premeditation.

Idiy Hb;}row p;}seyjiow I. Writ of free passage. A species of quod permittat.

De libero passagio

Idiy Hb;}rreytiy pr;}brend;}/. Writ for proving liberty. A writ which lay for such as, being demanded for villeins or niefs, offered to prove them selves free.

De libertate probanda

I diy Hb;}rreyt;}b;}s rebkren d;}s/. A writ of various forms, to enable a citizen to recover the liberties to which he was entitled. licentia transfretandi Idiy l;}sensh(iy);} trrens fr;}trenday/. Writ of permission to cross the sea. An 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.

Criminal offense; tort; a wrong. In Roman law 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 del icts;" 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. A quasi delict in Roman law was an act whereby a person, without malice, but by fault, negli gence, or imprudence not legally excusable, caused inju ry to another. They were four in number, viz.: (1) Qui judex litem suam fecit, being the offense of partiality or excess in the judex (juryman). (2) Dejectum 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) Damnum infectum, being the offense of hanging dangerous arti cles over the heads of persons passing along the king's highway. (4) Torts committed by one's agents in the course of their employment.

Delict.

Id;}Hktyuw;}1 folt/. An act, productive of obligations, which takes place between persons juridical ly strangers to each other; it supposes the absence of obligation and its result is the creation of one. Reserve Ins. Co. v. Fabre, 243 La. 982, 149 So.2d 413, 416.

Delictual fault

Id;}Hkt;}m/. 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 condito defendentis". A challenge of a juror propter delictum is for some crime or misdemeanor that affects his credit and ren ders him infamous. 3 Bl.Comm. 363.

Delictum

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; to limit; bound. Walling v. Yeakley, C.C.A.Colo., 140 F.2d 830, 832.

Delimit.

The act of fixing, marking off, or describ ing the limits or boundary line of a territory, country, authority, right, statutory exception or the like. See

Delimitation.

Delimit.

428

DELINQUENCY Failure, omISSIOn, violation of law or duty. Failure to make payment on debts when due. State or condition of one who has failed to perform his duty or obligation.

Delinquency.

As used in the commercial cred it field, generally refer to specific pecuniary sums that are assessed against the borrower solely because of his failure to make his payment in timely manner. John son v. McCrackin-Sturman Ford, Inc., C.A.Pa., 527 F.2d 257, 265.

Delinquency charges.

Delinquent, n.

Person who has been guilty of some crime, offense, or failure of duty or obligation.

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 due and unpaid taxes or mortgage payments.

An infant of not more than specified age who has violated criminal laws or engages in diso bedient, indecent or immoral conduct, and is in need of treatment, rehabilitation, or supervision. In re Garner, 230 Pa.Super. 426, 326 A.2d 581, 584. Defined by a state statute as: A child who (A) violates any federal or state law, or municipal or local ordinance; or (B) with out just cause runs away from his parental home or other properly authorized and lawful place of abode; or (C) is beyond the control of his parents, parent, guardian or other custodian; or (D) has engaged in indecent or immoral conduct; or (E) has been habitually truant or, while in school, has been continuously and overtly defi ant of school rules and regulations; or (F) has violated any lawful order of court. See 18 V.S.C.A. § 5001 et seq. See also Disobedient child. With respect to parental liability for acts of delin quent child, see Parental liability.

Delinquent child.

Delinquent taxes.

Past due and unpaid taxes.

/ d�liriy�m/. Disturbed mental state charac terized by a combination of motor restlessness display ing excitement, confusion, incoherence, perplexity, and disorientation, in combination with a dream-like state and some sensory disturbance, such as hallucinations and delusions. Sometimes caused by an infection or a toxic chemical substance.

Delirium

/ d�liriy�m febr�liy /. A form of mental aberration incident to fevers, and sometimes to the last stages of chronic diseases.

Delirium febrile

/ d�liriy�m triym�nz/. A delirium due to alcohol (Korsakow's Syndrome) or other drug poisoning or withdrawal, or to dietary metabolic depri vation resulting from sudden abstinence from alcohol.

Delirium tremens

The process by which the privileges of a security listed on an exchange are suspended for failure to meet the requirements of listing. Such delisting may be permanent or temporary. See also Deregistration.

Delisting.

The verdict rendered by a jury. At common law, 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

Deliverance.

same distress again delivered to him, on giving the same security as before. 3 Bl.Comm. 150. The act by which the res or substance there of is placed within the actual or constructive possession or control of another. Poor v. American Locomotive Co., C.C.A.Ill., 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, Jones v. Young, Tex.Civ.App., 539 S.W.2d 901, 904; e.g. "deliver" includes mail. Rev. Model Bus. Corp. Act, § 1.40. See also Drop shipment delivery; Misdelivery.

Delivery.

Absolute and conditional.

An absolute delivery, as dis tinguished from conditional delivery or delivery in es crow, is one which is complete upon the actual transfer of the instrument from the possession of the grantor. A conditional delivery is one which passes the thing sub ject 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. One of the exceptions to parol evidence rule which permits introduction of evidence to the effect that document was delivered on condition that some thing be done and it is understood that document does not become operative until such action be taken. 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. It is a formal immediate transfer of the property to the vendee. Constructive delivery is a general term, comprehend ing 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. 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, 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. "Con structive delivery" is a term comprehending all those acts which, although not truly conferring a real posses sion of the vendee, have been held by construction of law equivalent to acts of real delivery. Lakeview Gar dens, Inc. v. State ex reI. Schneider, Kan., 557 P.2d 1286, 1290. See also Symbolical delivery, below. Commercial law. Delivery with respect to instruments, documents of title, chattel paper or securities means voluntary transfer of possession. V.C.C. § 1-201(14).

The act by which seller parts with possession and buyer acquires possession. Delivery occurs whenever seller does everything necessary to put goods completely and unconditionally at buyer's disposal. Crowder v. Aurora Co-op. Elevator Co., 223 Neb. 704, 393 N.W.2d 250, 256. Conditional delivery. Issuance of an instrument with the understanding that the instrument is ineffective, that is, the maker or drawer is not liable thereon, unless

DEMAND

429 and until a specified event, i.e., a condition precedent, occurs. Deed. The final and absolute transfer of a deed, proper

ly executed, to the grantee, or to some person for his use, in such manner that it cannot be recalled by the grantor. Controlling factor in determining if there has been delivery of a deed is the intention of the grantor; to constitute "delivery" the deed must be placed in the hands of the grantee or within his control, with the intention that it is to become presently operative as a conveyance. Jones v. Young, 539 S.W.2d 901, 904. Delivery bond. A bond given upon the seizure of goods

(as under the revenue laws) conditioned for their resto ration to the defendant, or the payment of their value, if so adjudged. A guaranteed undertaking by a defendant whose prop erty has been seized through attachment promising that, in exchange for return of the property to him pending resolution of the main action, he will surrender the property or its value in satisfaction of judgment against her. Another name for this bond is "forthcoming bond." Delivery in escrow.

Transfer physically of something such as a deed to escrow agent to be held on some condition which is not inconsistent with the primary transaction and which is to be released on the occur rence of some specific event or happening. See Escrow. Delivery order. A written order to deliver goods directed

to a warehouseman, carrier or other person who in the ordinary course of business issues warehouse receipts or bills of lading. V.C.C. § 7-102(1)(d). The primary func tion of the delivery order is to aid in the breaking down into smaller lots of one large lot of goods (whether fungible or otherwise) which is represented by one bill of lading. Drugs. In the context of illegal transfer of drugs, "deliv

er" means the actual, constructive, or attempted trans fer from one person to another of a controlled substance. State v. Medina, 87 N.M. 394, 534 P.2d 486, 489. Gift. "Delivery" for purposes of creating a gift consists of irrevocable surrender of dominion and control over the subject matter of the gift. Bray v. Illinois Nat. Bank of Springfield, 37 Ill.App.3d 286, 345 N.E.2d 503, 505. Second delivery. The legal delivery by the depositary of a deed placed in escrow. 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 representa tive 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.

/ diy l(y)uwnret�kow iIJkw�r{m dow / . The name of a writ directed to the sheriff, directing him to inquire by good and lawful men wheth er the party charged is a lunatic or not.

De lunatico inquirendo

False, unshakeable belief which is (a) con trary to fact, (b) inappropriate to the person's education,

Delusion.

intelligence or culture, and (c) adhered to in spite of tangible evidence that it is false. A reality judgment which cannot be accepted by people of the same class, education, race and period of life as the person who expresses it and which cannot be changed by logical, argument or evidence against it. Three common delu sions are: (1) delusions of persecution; (2) delusions of grandeur; and (3) delusions of personal unworthiness. The first two are common to schizophrenia. Delusion appears to spring from a distorted world view created by the subject in order to satisfy his inner needs or to reconcile conflicting elements of his personality. See Insane delusion. Dem.

An abbreviation for "demise"; e.g., Doe demo

Smith, Doe, on the demise of Smith.

/ diy mregn� �sayz� el�jend�/. A writ by which the grand assise was chosen and sum moned.

De magna assisa eligenda

Demain.

See Demesne.

/diy m�j6ray at Concerning greater and

De majori et minori non variant jura

m�n6ray non vreriy�nt jur�/. less laws do not vary.

/ diy mrelow/ . 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 vilire, of illness in the town where the court sat.

De malo

Demand, v.

To claim as one's due; to require; to ask relief. To summon; to call in court.

Demand, n.

The assertion of a legal right; a legal obligation asserted in the courts. 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. Request for payment of debt or amount due. An asking with authority, claiming or challenging as due. Smith v. Municipal Court of Glen dale Judicial Dist., Los Angeles County, 167 Cal.App.2d 534, 334 P.2d 93l. 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. See also Call; Liquidated demand; On demand; Payable on demand.

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. See Counterclaim; Cross claim.

Demand clause.

Provision in note which allows holder to compel full payment if maker fails to meet any installment. See Demand note, below. Demand deposits.

Any bank deposit which the deposi tor may demand (withdraw) at any time in contrast to time deposit which requires depositor to wait the speci-

DEMAND

430

fied time before withdrawing or pay a penalty for early withdrawal. Funds accepted by bank subject to immedi ate withdrawal; such represent largest element in mon ey supply of the United States. U. S. v. Philadelphia Na.t. Bank, D.C.Pa., 201 F.Supp. 348, 360. Demand draft.

Sight draft; draft payable on demand.

Demand instrument. An instrument that is payable on

demand, at sight or on presentation. See U.C.C. § 3-108 (when an instrument is payable on demand). See also Demand note, below. Demand loan.

Loan which may be called by lender at any time because there is no fixed maturity date. A loan payable upon request by the creditor rather than on a specific date. See Demand note, below. Demand note. A note with no set maturity date which

expressly states that it is payable on demand, on presen tation, or at sight. A note in which no time for payment is expressed. Kent v. Lampman, 59 Cal.App.2d 407, 139 P.2d 57, 59. A note issued, accepted or indorsed when overdue, as regards person so issuing, accepting or in dorsing it. Nees v. Hagan, 22 Tenn.App. 78, 118 S.W.2d 566, 568. See also Demand instrument, above; and Sight draft.

Legal demand.

A demand properly made, as to form, time, and place, by a person lawfully authorized.

Personal demand.

A demand for payment of a bill or note, made upon the drawer, acceptor or maker, in person. I d�mrend;mt/. The plaintiff or party suing in a real action.

Demandant

Demandress

I d�mrendr�sl. A female demandant.

Idiy mren�krepshiy6wniy/. 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 main pernors or bail.

De manucaptione

Idiy mren�t�nendow/. Writ of main tenance. A writ which lay against a person for the offense of maintenance.

De manutenendo

The marking of a boundary line on the ground by physical means or a cartographic representa tion. State ex reI. Buckson v. Pennsylvania R. Co., Del., 267 A.2d 455, 459.

Demarcation.

I d�miyn�rI. As respects a witness or other person, relates to physical appearance; outward bearing or behavior. Faircloth v. State, 44 Ala.App. 295, 208 So.2d 66, 70. 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.

Demeanor

Demeanor evidence. Species of real evidence consisting

of behavior of witness on the witness stand and which may be considered by trier of fact on issue of credibility. Demease

Id�miyz/. In old English law, death.

I diy miydiy�teytiy liIJgwiy I. 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 speak ing or understanding English. It was composed of six English denizens or natives and six of the alien's own countrymen.

De medietate lingure

I diy miydiyowI. 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 ten ant para vail to be distrained upon by the lord para mount for the rent due him from the mesne lord.

De medio

Idiy miyliy6r�b�s dremn�s/. Of or for the better damages. A term used in practice to denote the election by a plaintiff against which of sever al defendants (where the damages have been assessed separately) he will take judgment.

De melioribus damnis

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. Idiymenz/ . One whose mental faculties are enfeebled; one who has lost his mind; distinguished from amens, one totally insane.

Demens

Demented

I d�m{mt�d/. Of unsound mind.

I d� me(y)nt�n6nt on �v6n(t)/. L. Fr. From this time forward.

Dementenant en avant

Id�mensh(iy)�/. Form of mental disorder in which cognitive and intellectual functions of the mind are prominently affected; impairment of memory is early sign; total recovery not possible since organic cerebral disease is involved. See also Insanity.

Dementia

Id�mensh(iy)� priykoks/. 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 he bephrenia. See also Insanity.

Dementia praecox

Idiy m�rk�t6r�b�s/. "Concerning mer chants." The name of an English statute passed in the eleventh year of Edw. I (1233), more commonly called the "Statute of Acton Burnel," authorizing the recogni zance by statute merchant. 2 Bl.Comm. 161.

De mercatoribus

I d�miynl d�meyn/. Domain; dominical; held in one's own right, and not of a superior; not allotted to tenants.

Demesne

431

DEMISSIO

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. 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. Demesne lands.

In old 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. 2 Bl.Comm. 90. Demesne lands of the crown. That share of lands re served to the crown at the original distribution of landed property, or which came to it afterwards by forfeiture or otherwise. 1 Bl.Comm. 286. Demesnial.

Pertaining to a demesne.

De minimis non curat lex. The law cares not for small

things. Idemiy-I. Fr. Half; the half. Used chiefly in composition. As to demi Mark; Official; Vill, see those titles.

Demi

Demidietas

I demiyday�tresl .

In old records, a half or

moiety. De minimis doctrine.

See De minimis non curat lex.

any conveyance in fee, for life, or for years. "Demise" is synonymous with "lease" or "let". The use of the term in a lease imports a covenant for quiet enjoyment, Sixty-Third & Halsted Realty Co. v. Chicago City Bank & Trust Co., 299 Ill.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. 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.

Demise charter.

Under a demise (or "bareboat") char ter, 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 limited period. McGahern v. Koppers Coal Co., C.C.A.Pa., 108 F.2d 652, 653. One under which control of vessel is taken from owner and vested in the charterer who mans and navigates vessel during rental period. F. Jacobus Transp. Co. v. Galla gher Bros. Sand & Gravel Corp., D.C.N.Y., 161 F.Supp. 507, 511. There must be relinquishment of all control over ship, barge or scow. B. W. King, Inc. v. Consolidat ed Iron & Metal Co., D.C.N.Y., 310 F.Supp. 471, 474. 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.

I diy min�m�s non kyUr�t leksI . The law does not care for, or take notice of, very small or trifling matters. The law does not concern itself about trifles. Provision is made under certain criminal statutes for dismissing offenses which are "de minimis." See, e.g., Model Penal Code § 2.12.

Several demises.

Idiy min�s/. Writ of threats. A writ which lay where a person was threatened with personal vio lence, or the destruction of his property, to compel the offender to keep the peace.

Single demise.

De minimis non curat lex

De minis

Idiym�n(y)uwsh(iy)ow/. In the civil law, a taking away; loss or deprivation. See Capitis diminutio.

Deminutio

Demi-sangue,

demy-sangue

I demiysreI](k)/.

Half

blood. Demise, v.

To convey or create an estate for years or life. To lease; to bequeath or transmit by succession or inheritance.

Demise, n.

A conveyance of an estate to another for life, for years, or at will (most commonly for years); a lease. Originally a posthumous grant. Commonly a lease or conveyance for a term of years; sometimes applied to

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.

A declaration in ejectment might con tain either one demise or several. When it contained only one, it was called a "declaration with a single demise." That property, or portion of a prop erty which is leased to a tenant.

Demised premises.

Demisi

Id�mayzayI.

Lat.

I have demised or leased.

Demisi, concessi, et ad firmam tradid�· 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, 31B. Id�mish(iy)ow/. 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

Demissio

DEMISSIO

432

plaintiff (a fictitious person) held the estate "on the demise" of, that is, by a lease from, the real plaintiff. / diy m;}tendow t;}nor;}m r;}korday /. A writ to send the tenor of a record, or to exemplify it under the great seal.

De mittendo tenorem recordi

The dismissal of an army or body of troops from active service.

Demobilization.

That form of government in which the sovereign power resides in and is exercised by the whole body of free citizens directly or indirectly through a system of representation, as distinguished from a mon archy, aristocracy, or oligarchy.

Democracy.

/ diy mod;}reyt;} miz;}r;}kordiy;} krepiyend;}/. 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 amerce ment of the party.

De moderata misericordia capienda

De modo decimandi

/ diy mowdow des;}mrenday /. Of a

modus of tithing. A term applied in English ecclesiasti

cal law to a prescription to have a special manner of tithing. 2 Bl.Comm. 29. De molendino de novo erecto non jacet prohibitio

/ diy m;}lend;}now diy nowvow ;}rektow non jeys;}t prow (h);}bish(iy)ow /. A prohibition lies not against a newly erected mill. To throw or pull down; to raze; to destroy the fabrication of; to pull to pieces; hence to ruin or destroy. Star Mfg. Co. v. Quarries, 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.

Demolish.

/ diymon;}t;}zeysh;}n/. The disuse of a particular metal for purposes of coinage. The withdraw al of the value of a metal as money. For example, in the United States gold has been demonetized.

Demonetization

To teach by exhibition of samples; to derive from admitted premises by steps of reasoning which admit of no doubt; to prove indubitably. To show or prove value or merits by operation, reasoning, or evidence.

Demonstrate.

/ dem;}nstreysh(iy)ow /. Lat. Description; addition; denomination. Occurring often in the phrase, 'Palsa demonstratio non nocet" (a false description does not harm). 2 Bl.Comm. 382.

Demonstratio

Description; pointing out. That which is said or written to designate a thing or person. Show or display of attitudes toward a person, cause, or issue. See also False demonstration.

Demonstration.

A testamentary gift which, by its terms, must be paid from a specific fund; e.g. bequest of one thousand dollars to be paid from testator's shares of stock in X Corporation. Hence, it is partly a general bequest and partly a specific bequest. See also Legacy.

Demonstrative bequest.

That evidence addressed di rectly to the senses without intervention of testimony. Such evidence is concerned with real objects which illustrate some verbal testimony and has no probative value in itself. People v. Diaz, 1 1 1 Misc.2d 1083, 445 N.Y.S.2d 888, 889. Real ("thing") evidence such as the gun in a trial of homicide or the contract itself in the trial of a contract case. Evidence apart from the testi mony of witnesses concerning the thing. Such evidence may include maps, diagrams, photographs, models, charts, medical illustrations, X-rays.

Demonstrative evidence.

Demonstrative legacy.

See Legacy.

One who stands, walks or parades in public in support of a cause to inform the public of the legitimacy of the cause and to enlist support for such cause.

Demonstrator.

/diy mor tiy hom;}n;}s n:}l;} est k;}IJkteysh(iy)ow IOIJg;}/. Where the death of a human being is concerned [in a matter of life and death], no delay is [considered] long.

De morte hominis nulla est cunctatio longa

A reduction to lower rank or grade, or to lower type of position, or to lower pay scale. See also

Demotion.

Degradation.

/d;}m�r/. 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.

Demur

/d;}m�r;}b;}l/. 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.

Demurrable

/d;}m�r;}j/. 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. With respect to railroads a charge exacted by a carrier from a shipper or consignee on account of a failure on the latter's part to load or unload cars within the specified time prescribed by the applicable tariffs; the purpose of the charge is to expedite the loading and unloading of cars, thus facilitating the flow of com merce, which is in the public interest. St. Louis, South western Ry. Co. v. Mays, D.C.Ark., 177 F.Supp. 182, 183. Demurrage is extended freight and is the amount pay able for delays by receiver in loading or unloading cargo; it is stipulated damages for detention. Hellenic Lines, Limited v. Director General of India Supply Mission for and on Behalf of Union of India, D.C.N.Y., 319 F.Supp. 821, 831.

Demurrage

Carrier's right to possession of goods for unpaid demurrage charges.

Demurrage lien.

/d;}m�r;}nt/. One who demurs; the party who, in pleading, interposes a demurrer.

Demurrant

An allegation of a defendant, which, admit ting the matters of fact alleged by complaint or bill (equity action) to be true, shows that as they are therein

Demurrer.

433

DEMURRER TO INTERROGATORIES

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 complaint or 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. 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. An assertion that complaint does not set forth a cause of action upon which relief can be granted, and it admits, for purpose of testing sufficiency of com plaint, all properly pleaded facts, but not conclusions of law. Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85, 87. A legal objection to the sufficiency of a pleading, attacking what appears on the face of the document. People v. Hale, 232 Cal.App.2d 1 12, 42 Cal.Rptr. 533, 538. See Calif. Code of Civil Proc. § 430. 10. See also Demurrer to evidence.

By Federal Rules of Civil Procedure (adopted in whole or part in most states) demurrers, pleas and exceptions for insufficiency of a pleading are abolished. Rule 7(c). Every defense 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. While the Federal Rules do not provide for the use of a demurrer, an equivalent to a general demurrer is provided in the motion to dismiss for failure to state a claim on which relief may be granted. Fed.R. Civil P. 12(b). Objections to the pleadings by means of demurrer still exists how ever in certain states; see e.g. Calif. Code of Civil Proc. § 430.10 et seq. Classification of Demurrers

General demurrer.

A general demurrer is a demurrer framed in general terms, without showing specifically the nature of the objection, and which is usually resort ed to where the objection is to matter of substance. Thus, a demurrer on the ground that the complaint sets forth no cause of action is a general demurrer (see e.g. Calif. Code of Civil Proc. § 430.10(e)), and a motion to dismiss a bill on ground that there is no equity apparent on the face thereof or that court has no jurisdiction is treated as a general demurrer. 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. The Federal Rules equivalent to a general demurrer is a motion to dismiss for failure to state a claim on which relief may be granted. Fed.R. Civil P. 12(b). Special demurrer. 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. Cameron v. Evans Securi ties Corp., 1 19 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. Johanson v. Cudahy Packing Co., 107 Utah 1 14, 152 P.2d 98, 105. See e.g. Calif. Code of Civil Proc. §§ 430.50, 430.60. The Federal Rules analogue of the special de murrer is the motion to make more definite and certain. Fed.R. Civil P. 12(e). Speaking demurrer. 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 com mon law and the code system of pleading. Preston A. Blair Co. v. Rose, 56 Idaho 1 14, 51 P.2d 209, 212. A speaking demurrer is one which alleges some new mat ter, not disclosed by the pleading against which the demurrer is aimed and not judicially known or legally presumed to be true. Parol demurrer.

A parol demurrer (not properly a de murrer at all) was a staying of the pleadings; a suspen sion of the proceedings in an action during the nonage of an infant, especially in a real action. Now abolished. 3 Bl.Comm. 300.

A record of the issue on a demurrer at law, containing a transcript of the pleadings, with prop er entries; and intended for the use of the court and counsel on the argument.

Demurrer book.

An objection to the introduction of any evidence on the ground that the complaint or petition fails to state a cause of action. 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. It should be considered as a general demurrer only.

Demurrer ore tenus.

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 insuf ficient in point of law (whether true or not) to make out his case or sustain the issue. The practice has been largely superseded by motions for nonsuit and directed verdict. Thus, a motion to nonsuit, a motion to dismiss at close of plaintiffs evidence for failure to prove essen tial facts, and a defendant's motion for a directed ver dict, made at close of the evidence, have been held to be equivalent to a "demurrer to the evidence" for insuffi ciency to sustain a verdict for plaintiff. 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 conse quences resulting from deferring the motion to exclude. Thornhill v. Thornhill, 172 Va. 553, 2 S.E.2d 318, 319.

Demurrer to evidence.

Where a witness objects a question propounded (particularly on the taking of a

Demurrer to interrogatories. to

434

DEMURRER TO INTERROGATORIES deposition) and states his reason for objecting or re fusing to answer, it is called a "demurrer to the inter rogatory," though the term cannot here be understood as used in its technical sense. or demy sangue Idemiy srelJ(k)/. blood. A corruption of demi-sang.

Demy sanke,

Half

Iden �n(d) strand/. In old English law, liberty for ships or vessels to run aground, or come ashore (strand themselves).

Den and strond

Id�neriy�tI. In old English law, as much land as is worth one penny per annum.

Denariate

Id�neriyay/. An ancient general term for any sort of pecunia numerata, or ready money. The French use the word "denier" in the same sense,-payer de ses propres deniers.

Denarii

Id�neriy�s diyay/. (Lat. "God's penny.") Earnest money; money given as a token of the comple tion of a bargain. It differs from arrhre in this: that arrhre 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.

Denarius Dei

As applied to a person, the act of depriving him of national rights or status. As applied to an industry or function, the act of returning it to private ownership and control after a period of national or sovereign ownership and control.

Denationalization.

I diy neyt�vow h�bendowI. 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.

De nativo habendo

I diy n�tyur� briyviy�m/. (Lat.) Concerning the nature of writs. The title of more than one textbook of English Medireval law.

De natura brevium

A traverse in the pleading of one party of an allegation of fact asserted by the other; a defense. A response by the defendant to matter(s) alleged by the plaintiff in the complaint. Under Rules of Civil Proce dure, denials must be specific and directed at the partic ular allegations controverted. Denials may be made in part (i.e. , specific denial) or in whole (i.e., general deni al), but in the main should be specific and "fairly meet the substance of the averments denied." Fed.R. Civil P. 8(b). Averments in pleadings to which a responsive pleading is required are admitted unless denied. Rule 8(d).

Denial.

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 aver ments or any of them. A specific denial is a separate denial applicable to one particular allegation of the complaint. An answer 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. Id�nay�r/. L. Fr. In old English law, denial; refusal. Denier is when the rent (being demanded upon the land) is not paid.

Denier

Id�nyey a dyuw/. In French law, earnest money; a sum of money given in token of the comple tion of a bargain. The phrase is a translation of the Latin denarius Dei (q. v.).

Denier a Dieu

I dEm�zeysh�n/. The act of making one a denizen; the conferring of the privileges of citizenship upon an alien born. See Denizen.

Denization

Denize

I d�nayzl. To make a man a denizen or citizen.

Iden�z�n/. 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. 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 natural ized subject, being able to take lands by purchase or devise (which an alien could not unti1 1870 do), but not able to take lands by descent (which a natural-born or naturalized subject may do). 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. Naturalization of aliens is now governed by British Nationality Act. 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. 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 reI. D'Esqui va 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. Unit ed States ex reI. 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.

Denizen

I(lord) denm�nz rekt/. 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 inca pacity, from crime or interest, from giving evidence.

Denman's (Lord) Act

I(mist�r) denm�nz rekt/. An Eng lish statute, for the amendment of procedure in criminal trials (28 & 29 Vict., c. 18), allowing counsel to sum up

Denman's (Mr.) Act

435

DENUNTIATIO

the evidence in criminal as in civil trials, provided the prisoner be defended by counsel. /d;mobr�mon/. 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.

Denombrement

/ d�nom�ney sh(iy)ow fay�ray deb�t ey digniyor�b�s/. Denomination should be made from the more worthy.

Denominatio fieri debet a dignioribus

The act of naming. A society of indi viduals known by the same name, usually a religious society.

Denomination.

Denominational, adj.

/ d�nom�neysh�n�l/. taining to, a denomination; sectarian.

Of, or per

Institution controlled or operated by a religious sect or organization and hence forbidden to receive governmental aid because of consti tutional separation of church and state.

Denominational institution.

De nomine proprio non est curandum cum in sub stantia non erretur;

quia nomina mutabilia sunt,

/ diy nom�niy prowpriyow non est ky�rrend�m k;)m in s�bstrensh(iy)� non �riyt�r, kway� nom�n� myuwt�biliy� s;)nt, riyz ot�m imowb�liyz/. As to the proper namei it is not to be regarded where it errs not in substance, because names are changeable, but things immutable. res autem immobiles

De non apparentibus, et non existentibus, eadem est

/diy non rep�rent�b�s et non egz�stent�b�s iyeyd�m est reysh(iy)ow/. As to things not apparent, and those not existing, the rule is the same. ratio

/diy non des�mrendow/ . 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 decimando

/diy non prows�dendow red �sayz�m/. A writ forbidding the justices from hold ing an assise in a particular case.

De non procedendo ad assisam

/ diy non rez�densh(iy)� kler�say riyj�s/. An ancient writ where a parson was employed in the royal service, etc., to excuse and dis charge him of non-residence.

De non residentia clerici regis

non sane memorie /diy non seyniy m�m6riyiyl"sreniy mem�riy/. L. Fr. Of unsound memory or mind; a phrase synonymous with non compos mentis.

To declare (an act or thing) to be a crime and prescribe a punishment for it. To pronounce or condemn something as being evil or morally wrong. The word is also used (not technically but popularly) as the equivalent of "accuse" or "inform against."

Denounce.

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 dimoncer means to declare, to lodge an information against.

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 con travention of the mining law. Castillero v. U. S., 67 U.S. 17, 2 Black 17, 17 L.Ed. 360; Stewart v. King, 85 Or. 14, 166 P. 55, 56. An application for the acquisition of land for mining purposes, under certain rules pre scribed 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. In Spanish and Mexican law, a judicial proceeding for the forfeiture of land held by an alien.

Denouncement.

nunciatione / diy nowvay owp�r�s n�nsiyeyshiyowniy /. In the civil law, a form of interdict or injunction which lies in some cases where the defen dant is about to erect a "new work" (q. v.) in derogation or injury of the plaintiffs rights.

De novi operis

/ diy nowvow /. Anew; afresh; a second time. 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.

De novo

De novo hearing. See Hearing de novo.

Trying a matter anew; the same as if it had not been heard before and as if no decision had been previously rendered. Farmingdale Supermarket, Inc. v. U. S., D.C.N.J., 336 F.Supp. 534, 536.

De novo trial.

Density zoning.

See Zoning.

De nullo, quod est sua natura indivisibile, et divi sionem non patitur, nullam partem habebit vidua,

/diy n�low, kwod est s(y)uw� n�t(y)ur� indiv�zib�liy et d�viz(h)iyown�m non pret�t�r, n�l�m part�m h�biyb�t vid(y)uw�, sed sret�sfey shiy�t iyay red v�lenshiy�m/. 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. sed satisfaciat ei ad valentiam

De nullo tenemento, quod tenetur ad terminum, fit

/diy n�low ten�mentow, kwod t�niyt�r red t�rm�n�m, fit h�meyjiyay, fit trem�n indiy f�diyl�teyt�s srekr� ment�m/. In no tenement which is held for a term of years is there an avail of homage; but there is the oath of fealty. homagii, fit tamen inde fidelitatis sacramentum

Denumeration.

The act of present payment.

Act of denouncing. In the civil law, the act by which an individual in forms a public officer, whose duty it is to prosecute offenders, that a crime has been committed. The giving of an information in the ecclesiastical courts by one who was not the accuser.

Denunciation.

/d�n;)nsiyeysh(iy)ow/. In old English law, a public notice or summons.

Denuntiatio

DENY Deny. To traverse. To give negative answer or reply to. To refuse to grant or accept. To refuse to grant a petition or protest. Safeway Stores v. Brown, Em.App., 138 F.2d 278, 280. See Denial. Deodand / diy�drend/. (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. De odio et atia /diy 6wdiyow ed eysh(iy)�/. 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. De onerando pro rata portione /diy own�ramdow prow reyt� porshiy6wniy/. 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. De pace et legalitate tenenda / diy peysiy et l�grel�tey tiy t�nend�/. For keeping the peace, and for good behavior. De pace et plagis / diy peysiy et pleyj�s/. 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.

436 Department of State. See State Department. Departure. A deviation or divergence, from a standard rule, measurement or course of conduct. A variance between pleading and proof. Kintner v. U. S., C.C.A.Colo., 71 F.2d 961, 962. In common law pleading, the statement of matter in a replication, re joinder, 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. Under Rules of Civil Procedure, no provision is made for "departure" but there are liberal amend ment provisions. Fed.R. Civil P. 15. See also Variance. 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." Depecage. The process whereby different issues in a single case arising out of a single set of facts are decided according to the laws of different states. Broome v. Antlers' Hunting Club, 595 F.2d 921, 923 n. 5 (3rd Cir., 1979). Under "depecage" choice of law theory, court considers issues on which there is disagreement among the contact states over which rule of law is applicable to each issue. Lazzara v. Howard A. Esser, Inc., D.C.Ill., 622 F.Supp. 382, 384. Depeculation. In English law, a robbing of the prince or commonwealth; an embezzling of the public treasure. Dependable, adj.

Trustworthy or reliable; evidence.

De pace et roberia /diy peysiy et rob�riy�/ . 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.

Dependence. A state of looking to another for support, maintenance, food, clothing, comfort and protection of a home and care. Soderstrom v. Missouri Pac. R. Co., Mo.App., 141 S.W.2d 73, 79. See Dependent.

De parco fracto /diy parkow frrektow/. A writ or action for damages caused by a pound-breach (q. v.). It has long been obsolete. 3 Bl.Comm. 146.

Dependency. A territory distinct from the country in which the supreme sovereign power resides, but belong ing rightfully to it, and subject to the laws and regula tions which the sovereign may think proper to prescribe. Posadas v. National City Bank of N. Y., Phil. Islands, 296 U.S. 497, 56 S.Ct. 349, 350, 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. Dependencies of the United States include Puerto Rico, Virgin Islands, Guam and other Pacific islands. See 48 U.S.C.A. § 731 et seq. A relation between two persons, where one is sus tained by another or looks to or relies on aid of another for support or for reasonable necessaries consistent with dependent's position in life. See Dependent; Partial de

Depart. To go away from; leave; die. De partitione facienda /diy partishiy6wniy fey s(h)iyend�/. A writ which lay to make partition of lands or tenements held by several as coparceners, tenants in common, etc. Department. One of the territorial divisions of a coun try. 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 govern mental purposes, to the division of an American state into counties. One of the major administrative divisions of the exec utive branch of the government usually headed by an officer of cabinet rank; e.g. Department of State. Gen erally, a branch or division of governmental administra tion. Also, a division of a business, or of something comparable thereto. U. S. v. Elgin, J. & E. Ry. Co., Ill., 298 U.S. 492, 56 S.Ct. 841, 80 L.Ed. 1300.

pendency.

Dependency exemption. An amount which may be subtracted in computing taxable income for each person who qualifies as a dependent of the taxpayer and whose gross income is less than the exemption amount or who is a child of the taxpayer and who has either not

437 attained the age of 19 or who is a full time student. I.R.C. § 151(e). Dependent, n.

One who derives his or her main support from another. Means relying on, or subject to, someone else for support; not able to exist or sustain oneself, or to perform anything without the will, power, or aid of someone else. Fox-Vliet Wholesale Drug Co. v. Chase, Okl., 288 P.2d 391, 393. Generally, for workers' com pensation purposes, "dependent" is one who relies on another for support or favor and one who is sustained by another. Industrial Indem. Co. v. Industrial Acc. Com mission, 243 Cal.App.2d 700, 52 Cal.Rptr. 647, 651, 653. One who has relied upon decedent for support and who has reasonable expectation that such support will con tinue. Wheat v. Red Star Exp. Lines, 156 Conn. 245, 240 A.2d 859, 862, 863. See also Lawful dependents. In taxation, a person who receives more than half of his or her support from the taxpayer during the calen dar year; is a relative of the taxpayer, i.e., brother, child, parent, aunt, etc.; and is a citizen or resident of the U.S. See Dependency exemption.

Dependent, adj.

Deriving existence, support, or di rection from another; conditioned, in respect to force or obligation, upon an extraneous act or fact.

Dependent conditions. Mutual covenants which go to the whole consideration on both sides. Dependent contract. One which depends or is condition

al 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. Dependent covenant. See Covenant. Dependent coverage.

Provision in life and health insur ance for protection of dependents of named insured.

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. A conclusory label used by the common law to refer to a cause that intervenes between the defendant's behavior and a given result such that it is still fair to hold the defendant responsible for the result. See also Cause.

Dependent intervening cause.

The doctrine which regards as mutually dependent the acts of one destroy ing a will and thereupon substituting another instru ment for distribution of estate, when both acts are result of one plan, so that, if second act, through incomplete ness 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. In re Cuneo's Estate, 60 Cal.2d 196, 32 Cal.Rptr. 409, 412, 384 P.2d l .

Dependent relative revocation.

Pending or undetermined; in progress. In patent law, a convenient means of saying that the parts of a device were so attached as to have a right-an-

Depending.

DEPLETION gle relationship to each other, not a gravitational hang ing of one part upon another. Alemite Mfg. Corporation v. Rogers Products Co., C.C.A.N.J., 42 F.2d 648, 651. / diy p�rremby�leyshiyow niy fres(h)iy{md�/. 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.

De perambulatione facienda

/d�peys�sr-z/. In Spanish-American law, spaces of ground in towns reserved for commons or public pasturage.

Depesas

pignore surrepto furti, actio heksh(iy)ow diy pignoriy s�reptow f;}rtay/. In the civil law, an action to recover a pledge stolen.

/diy plres�tow/ . Of a plea; of or in an action. Formal words used in declarations and other proceed ings, as descriptive of the particular action brought.

De placito

/ diy pleyj�s et m�hiymiyow /. Of wounds and mayhem. The name of a criminal appeal formerly in use in England, in cases of wounding and maiming. See Appeal.

De plagis et mahemio

/diy pleynow /. Lat. On the ground; on a level. A term of the Roman law descriptive of the method of hearing causes, when the prretor 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 plano

/diy pliyjiy�s �kway�trend�s/. 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.

De plegiis acquietandis

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. Spalding v. U. S., C.C.A. Cal. , 97 F.2d 697, 700; U. S. v. Spalding, C.C.A.Cal., 97 F.2d 701, 704. See Depletion.

Depletable economic interest.

To reduce or lessen, as by use, exhaustion, or waste. McKnight v. U. S., C.C.A.Cal., 78 F.2d 931, 933.

Deplete.

An emptying, exhausting or wasting of as sets. A reduction during taxable year of oil, gas or other mineral deposits or reserves (i.e., wasting assets) as a result of production. The process by which the cost or other basis of a natural resource (e.g. , an oil and gas interest) is recovered upon extraction and sale of the resource.

Depletion.

Depletion allowance.

The tax laws allow a depletion allowance (deduction) to owners of oil, gas, mineral, and timber resources as such are exhausted. The two ways to determine the depletion allowance are the cost and percentage (or statutory) methods. Under the cost meth od, each unit of production sold is assigned a portion of the cost or other basis of the interest. This is deter-

DEPLETION

438

mined by dividing the cost or other basis by the total units expected to be recovered. I.R.C. § 611. Under the percentage (or statutory) method the tax law provides a special percentage factor for different types of minerals and other natural resources. Such depletion is based on a percentage of the estimated gross income to be earned during the period from a natural resource, without reference to the cost of the resource. This percentage is multiplied by the gross income from the interest to arrive at the depletion allowance. I.R.C. §§ 613 and 613A. See also Amortization. Depletion allowance.

See Depletion.

Depletion deduction.

See Depletion.

In accounting, a charge to income to reflect the decrease in value of a wasting asset such as an oil well.

Depletion reserve.

I diy p:mendow s�jibm red �ksepshiy6wn�m/. 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.

De ponendo sigillum ad exceptionem

I d�p6wn�nt/. One who deposes (that is, testi fies) 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. One whose deposi tion is given. A witness; an affiant. See Depose; Dep

Deponent

osition. •

Idiypopy�leysh(iy)ow �gr6r�m/. In old English law, the crime of destroying, ravaging, or laying waste a country. 4 BI.Comm. 373.

Depopulatio agrorum

In old English law, a species of waste by which the population of the kingdom was diminished. DepopUlation of houses was a public offense.

Depopulation.

Idiyporteysh(iy)ow/. 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.

Deportatio

Banishment to a foreign country, attend ed with confiscation of property and deprivation of civil rights. A punishment derived from the deportatio (q. v.) of the Roman law. The transfer of an alien, excluded or expelled, from the United States to a foreign country. Petition for Milanovic, D.C.N.Y., 162 F.Supp. 890, 892. The removal or sending back of an alien to the country from which he came because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated. The list of grounds for depor tation are set forth at 8 U.S.C.A. § 1251, and the procedures are provided for in §§ 1252-1254. See also Banishment. Compare Extradition.

Deportation.

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. See Deponent; Deposition.

Depose.

To deprive an individual of a public employment or office against his will. The term is usually applied to the deprivation of all authority of a sovereign. 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 reI. Grauman v. Jefferson County Fiscal Court, 273 Ky. 674, 1 17 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 bailment of goods to be kept by the bailee without reward, and delivered according to the object or purpose of the original trust. In general, an act by which a person receives the property of another, binding himself to preserve it and return it in kind. The deliv ery of chattels by one person to another to keep for the use of the bailor. The giving of the possession of person al property by one person to another, with his consent, to keep for the use, benefit, and safekeeping of the first or of a third person. Something intrusted to the care of another, either for a permanent or a temporary disposi tion. Money placed 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. The act of placing 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. 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. A quantity of ore or other mineral substances occur ring naturally in the earth; as, a deposit of gold, oil, etc. See Bailment; Earnest money; Escrow. General Classification

According to the classification of the civil law, depos its 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 con fided to any person whom the depositor may meet with out proper opportunity for reflection or choice, and thence it is called "miserabile depositum. " (2) Volun tary, which arises from the mere consent and agreement of the parties. The common law has made no such division. The civilians again divide deposits into "sim ple 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

DEPOSITARY

439 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 Louisi ana statutes, it is said that the difference between "sequestration" and "deposit" is that the former may have for its object both movable and immovable proper ty, while the latter is confined to movables. There is another class of deposits called "involun tary," which may be without the assent or even knowl edge of the depositor; as lumber, etc., left upon anoth er'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. Another class of deposits is 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. A regular deposit is a strict or special deposit; a deposit which must be returned in specie; i.e., the thing deposited must be returned. A quasi deposit is a kind of implied or involuntary deposit, which takes place where a party comes lawfully to the possession of another person's property, by finding it. Particularly with reference to money, deposits are also classed as general or special. A general deposit is where the mon ey deposited is not itself to be returned, but an equiva lent in money (that is, a like sum) is to be returned. It is equivalent to a loan, and the money deposited be comes the property of the depositary. 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. 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 origi nally, 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 custodire;" if, on the other hand, the bailee pays for the use of it, it is "locatio rei." (See Locatio.) But in the modern law, 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. See also Certificate of deposit; Involuntary deposit; Se curity deposit. For bank deposit, see Bank.

Demand deposit.

Bank deposit which may be with drawn at any time by the depositor, without prior notice to bank. Compare Time deposit, below. Deposit box.

Commonly referred to as safe deposit box in which a person may keep valuables. See Safe deposit

box.

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. See Depositary; Depository. Deposit contract. Agreement between a payor bank and

a customer that governs the rights and duties of the parties with respect to funds deposited by the customer in a demand or other account maintained at the bank, and that specifies, among other things, the circumstanc es under which items drawn against the account are properly payable and properly charged against the ac count. Deposit in court. Person who acknowledges liability but

is in doubt as to whom the liability runs may pay into court the sum of money representing his liability and be bound by the court's determination of who is entitled to it. See e.g. Fed.R. Civil P. 67. May also embrace payment into court pursuant to court order as in the case of rent pending outcome of eviction case. Deposit insurance.

Insurance coverage (e.g. Federal De posit Insurance Corporation) for bank depositors protect ing them from loss resulting from bank failure. See' Deposit Insurance Corporation.

Deposit of title-deeds. A method of pledging real proper

ty as security for a loan, by placing the title-deeds of the land in the keeping of the lender as pledgee. Deposit premium.

The initial premium paid by the insured on a provisional basis pending a premium ad justment in the case of policies subject to adjustment. Deposit ratio.

Ratio of total deposits to total capital.

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. Time deposit. Bank deposit which is to remain for specified period of time, or on which notice must be given to bank before withdrawal.

The party or institution (e.g. bank or trust company) 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. 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 origi nal trust. This term should not be confused with "de pository" which is the physical place of deposit.

Depositary.

DEPOSIT INSURANCE ACT Federal act creating Federal Deposit Insurance Corporation (F.D.I.C.) to insure depos its of qualifying banks. 12 U.S.C.A. § 181 1 et seq. See

Deposit Insurance Act.

Deposit Insurance Corporation.

Independent federal agency (Federal Deposit Insurance Corporation) created to insure bank deposits up to a specified amount in national and most state banks, including commercial and savings and loan banks, and to protect depositors from hazards of bank closings. See Federal Deposit

Deposit Insurance Corporation.

I nsurance Corporation.

The testimony of a witness taken upon oral question or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authen ticated, and intended to be used in preparation and upon the trial of a civil action or criminal prosecution. A pretrial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. The person who is deposed is called the deponent. The deposition is conducted under oath outside of the courtroom, usually in one of the lawyer's offices. A transcript-word for word account-is made of the deposition. Testimony of witness, taken in writing, under oath or affirmation, before some judicial officer in answer to questions or interrogatories. Fed.R. Civil P. 26 et seq.; Fed.R. Crim.P. 15. See also Discovery; I nterrogatories. 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.

Deposition.

Oral deposition. Form of discovery by addressing ques tions orally to person interrogated. Fed.R. Civil Proc. 30. Written questions. Form of discovery in which written questions are addressed to person interrogated. Fed.R. Civil Proc. 3l.

/ dep;}zish::m diy biyniy esiy /. 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.

Deposition de bene esse

/deyposiytow/. In Spanish law, deposit; the species of bailment so called. A real contract by which one person confides to the custody of another an object on the condition that it shall be returned to him whenever he shall require it.

Deposito

One who makes a deposit. One who delivers and leaves money with a bank on his order or subject to check.

Depositor.

The place where a deposit (q. v.) is placed and kept; e.g. bank, savings and loan institutions, credit union, trust company. Place where something is depos ited or stored as for safekeeping or convenience; e.g. safety deposit box.

Depository.

440 This term should not be confused with "depositary" which is the person or institution taking responsibility for the deposit, rather than the place itself. United States depositories are banks selected and des ignated to receive deposits of the public funds (e.g. taxes) of the United States. The first bank to which an item is transferred for collection even though it may also be the payor bank. U.C.C. § 4-105(a).

Depository bank.

An unsigned, non negotiable check used to transfer funds from a local collection bank to a concentration bank.

Depository transfer check (DTC).

/d;}poz;}t;}m/. 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. See Deposit. One of the four real contracts specified by Justinian, and having the following characteristics: (1) The deposi tary 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.

Depositum

/ diy powst d;}siyz;}n;}/. Writ of post disseisin. A writ which lay for him who, having recov ered lands or tenements by prrecipe quod reddat, on default, or reddition, was again disseised by the former disseisor.

De post disseisina

/ deypow /. 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) sequestre, which is a deposit made 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.

Depot

/ diy pr;}rog;}tayva riyj;}s/. The English statute 17 Edw. I, St. 1, c. 9, defining the prerogatives of the crown on certain subjects, but espe cially directing that the king shall have ward of the lands of idiots, taking the profits without waste, and finding them necessaries.

De prrerogativa regis

/ diy pr;}zentay/. Of the present; in the present tense. See Per verba de prresenti.

De prresenti

To defame; to corrupt morally; vilify; exhibit contempt for. Corrupt, perverted or immoral state of mind.

Deprave.

As an adjective means marked by debase ment, corruption, perversion or deterioration. State v. Weso, 60 Wis.2d 404, 210 N.W.2d 442, 446.

Depraved.

An inherent deficiency of moral sense and rectitude, equivalent to statutory phrase "depravity of heart" defined as highest grade of malice. A corrupt, perverted, or immoral state of mind. As required for conviction of second-degree murder, is one which is indifferent to the life of others. Jones v. State, 70 Wis.2d 41, 233 N.W.2d 430, 435. Such state of mind is

Depraved mind.

441

DEPRESSION

equatable with malice in commonly understood sense of ill will, hatred, spite or evil intent. Weaver v. State, Fla.App., 220 So.2d 53, 60.

undepreciated balance existing at the start of each peri od. No salvage value is used in the calculation.

Assets subject to depreciation; assets that decline in value or usefulness over a period of time through use or obsolescence. An example of depreciable assets includes machinery and equipment; land is a non-depreciable asset. See Depreciation.

ation of an asset in which the value is fixed in terms of replacement cost.

Depreciable.

For an asset, the time period over which depreciable cost is to be allocated. For tax re turns, depreciable life may be shorter than estimated service life.

Depreciable life.

/ d:lpriyshiyeysh:m/. In accounting, spreading out the cost of a capital asset over its estimat ed useful life. Depreciation expense reduces the taxable income of an entity but does not reduce the cash. A decline in value of property caused by wear or obso lescence and is usually measured by a set formula which reflects these elements over a given period of useful life of property. State Highway Commission v. Tubbs, 147 Mont. 296, 411 P.2d 739, 744. Consistent, gradual pro cess of estimating and allocating cost of capital invest ments over estimated useful life of asset in order to match cost against earnings. Coca-Cola Bottling Co. of Baltimore v. U.S., 203 Ct.Cl. 18, 487 F.2d 528, 534. The depreciation expense recorded on the entity's tax return may differ from that recorded on the entity's financial statements. An entity usually uses an accelerated method on its tax return and the straight-line method on its financial statements due to the larger write-offs in the early years. As to intangible assets, see Amortization. As to natural resources, see Depletion. See also Acceler

Depreciation

ated Cost Recovery System; Accrued depreciation; Annu al depreciation; Asset Depreciation Range; Recapture of depreciation; Useful life. Depreciation Methods

Accelerated depreciation.

Various methods of deprecia tion that yield larger deductions in the earlier years of the life of an asset than the straight-line method. Ex amples include the double declining-balance and the sum of the years' digits methods of depreciation.

Accrued depreciation. See Accrued depreciation, and Ac cumulated depreciation, below. Accumulated depreciation.

Total depreciation recorded on an asset to date. On the balance sheet, accumulated depreciation reflects the book value of an asset. See also Accrued depreciation.

Declining balance method. Under the declining balance

method, the annual depreciation allowance is computed by multiplying the undepreciated cost of the asset each year by a uniform rate up to double the straight-line rate or 150 percent, as the case may be. Double declining method. Spreading the initial cost of a capital asset over time by deducting in each period double the percentage recognized by the straight-line method and applying that double percentage to the

Replacement cost method. The amortization or depreci

Sinking fund method. A process of recovering the value of an asset by setting up a sinking fund. Straight-line method. Under the straight-line method of depreciation, the cost or other basis (e.g., fair market

value in the case of donated assets) of the asset, less its estimated salvage value, if any, is determined first; then this amount is written off in equal amounts over the period of the estimated useful life of the asset. Taking the initial cost of a capital asset, deducting the expected salvage value at the time it is expected to be discarded, and spreading the difference in equal installments per unit of time over an estimated life of the asset. Sum-of-the-year's digits method.

Under this method, the annual depreciation allowance is computed by multi plying the depreciable cost basis (cost less salvage value) by a constantly decreasing fraction. The numerator of the fraction is represented by the remaining years of useful life of the asset at the beginning of each year, and the denominator is always represented by the sum of the years' digits of useful life at the time of acquisition. Unit method. A depreciation or amortization method used in which an asset is written off in direct relation to the productivity of the asset. The cost of the asset is divided by the estimated total number of units to be produced. This unit cost is then multiplied by the number of units sold during the year resulting in the depreciation or amortization expense for the year.

An account kept on the books, as of a public utility, to offset the depreciation of the property due to time and use. It does not represent the actual depreciation of its properties which is to be de ducted from the reproduction cost new to ascertain the present value for rate purposes; but only what observa tion and experience suggest as likely to happen, with a margin over. In taxation, when gain is realized on disposition of depreciable property the gain must be reported as ordinary income, not capital gain, to the extent of depreciation previously taken as a deduction. I.R.C. §§ 1245, 1250.

Depreciation reserve.

/depr:ldeysh:ln/. 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.

Depredation

A period of economic stress; usually ac companied by poor business conditions and high unem ployment. McCuiston v. Haggard, 21 Tenn.App. 277, 109 S.W.2d 413. A sharp decline in aggregate business activity that persists over an extended period of time. In economic parlance, a "depression" is more severe than a "recession." A hole or hollow.

Depression.

442

DEPRESSION Mental syndrome manifested by sense of inadequacy, self-depreciation, melancholy, and guilt feelings. Mental or emotional condition, precipitated by some external factor and manifested by guilt, self-depreciation, psychomotor retardation, defec tion and/or sense of inadequacy; generally considered to be a neurosis.

Depressive reaction.

/depr;}veysh:m/. A taking away or confis cation; as the deprivation of a constitutional right or the taking of property under eminent domain without due process of law (i.e. without just compensation). See also Deprivation of property.

Deprivation

Due process guaranty which is abridged when government takes private property without just compensation except under extraordinary circumstances of the police power, though for depriva " tion of property there is not required an actual, physical taking for private or public use. Even a temporary deprivation of property constitutes a "deprivation" with in meaning of Fourteenth Amendment. Remm v. Lan drieu, D.C.La., 418 F.Supp. 542, 545. See Condemnation;

Deprivation of property.

Eminent domain; Expropriation; Just compensation; Tak ing.

As used in the statute proscribing the offense of receiving stolen property means to withhold property from the owner permanently or to use or dispose of the property in a manner that makes recovery of the proper ty by the owner unlikely. State v. Freeman, Mo.App., 667 S.W.2d 443, 446. See Deprive permanently.

Deprive.

permanently. To "deprive permanently" means to: (a) Take from the owner the possession, use or benefit of his property, without an intent to restore the same; or (b) Retain property without intent to restore the same or with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; or (c) Sell, give, pledge or otherwise dispose of any interest in property or subject it to the claim of a person other than the owner.

Deprive

/diy pro(w)s;}dendow red juwdish(iy);}m/. An old English writ proceeding out of chancery and ordering the judges of any court to pro ceed to judgment. 3 BLComm. 109.

De procedendo ad judicium

As the term has become known, is the process whereby individuals who are members of certain religious groups are subjected to a scheme of brain-washing or mind control in an attempt to dissuade them of their religious beliefs. Baer v. Baer, D.C.CaL, 450 F.Supp. 481, 485.

Deprogramming.

proprietate probanda /diy pr;}pray;}teytiy pr;}brend;}/. Writ for proving property. An old English 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.

To appoint a deputy; to appoint or commis sion 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

Deputize.

it is almost always restricted to the substitution of a person appointed to act for an officer of the law. 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. One appointed to substitute for another with power to act for him in his name or behalf. A substitute for another and is empowered to act for him in his name and behalf in all matters in which principal may act. Williams v. Ferrentino, Fla.App., 199 So.2d 504, 511.

Deputy.

Deputy consul. See Consul. 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 "undersher iff') 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. Deputy steward.

In English law steward of a manor could depute or authorize another to hold a court; and the acts done in a court so holden were as legal as if the court had been holden by the chief steward in person. So an under steward or deputy could 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.

Special deputy.

One appointed to exercise some special function or power of the official or person for whom he is appointed. See also Deputy sheriff, above.

/diy kwor;}ntayn;} h;}bend;}/. 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.

De quarantina habenda

De quibus sur disseisin

/diy kwib;}s s;}r d;}siyz;}n/. An

ancient writ of entry. / diy kwow/ and de quibus / diy kwib;}s/. 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."

De quo

/diy kwowt;} layt;}s/. 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.

De quota litis

/ d;}reyn/ . To prove; to vindicate; to disprove allegations.

Deraign

Derangement.

See Insanity.

/diy rrept(y)uw v:lrj;}n;}m/. Of the ravishment of maids. The name of an appeal formerly in use in England in cases of rape.

De raptu virginum

443

DERIVATIVE ACTION

Idiy rresh:mabibbas davayzas/. 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.

De rationabilibus divisis

I diy rresh(iy)aneybalay partiy b:moram/. 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 person alty, after payment of his debts, or to recover their reasonable part or share of his goods. 2 Bl.Comm. 492.

De rationabili parte bonorum

Derecho

Idereychow/.

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 contribution. Idiy rakordow et prasesyuw matendas/. Writ to send the record and process of a cause to a superior court; a species of writ of error.

De recordo et processu mittendis

De recto

Idiy rektow/. Writ of right. See Writ of right.

Idiy rektow diy redvakey shiyowniy/. Writ of right of advowson. An old English writ which lay for one who had an estate in an advow son to him and his heirs in fee-simple, if he were disturbed to present. Abolished by St. 3 & 4 Wm. IV, c. 27.

De recto de advocatione

Idiy rektow diy rreshaneybalay partiy/. Writ of right, of reasonable part. An old English 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 or her share by another. Abolished by St. 3 & 4 Wm. IV, c. 27.

recto

rationabili

De recto patens

parte

Idiy rektow peytenz/. Writ of right

patent. Idiy riydasiyzana/. 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.

De redisseisina

Deregistration of an issuer of securities occurs when the number of securities holders of an issuer registered under section 12 of the Securities Ex change Act of 1934 has declined to the point where registration is no longer required. See also Delisting;

Deregistration.

Registered corporation.

Reduction of government regulation of business to permit freer markets and competition.

Deregulation.

Ideraliktl . Forsaken; abandoned; deserted; cast away. Personal property abandoned or thrown away by the owner in such manner as to indicate that he intends to make no further claim thereto.

Derelict

Land left uncovered by the receding of water from its former bed. See Dereliction.

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. 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. When the crew have left their vessel temporarily, with the inten tion of returning to resume possession, she is not techni cally a derelict, but is what may be termed a "quasi derelict." I deralikshan/. The gaining of land from the water, in consequence of the sea, river, or stream shrink ing back below the usual water mark; the opposite of alluvion (q. v.). Mexico Beach Corp. v. St. Joe Paper Co., 97 So.2d 708, 710. Also, land left dry by running water retiring imperceptibly from one of its shores and en croaching on the other. "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. See also Accretion; Avul

Dereliction

sion; Reliction.

In the civil law, the voluntary abandonment of goods by the owner, without the hope or the purpose of re turning to the possession. reparatione facienda Idiy repareyshiyowniy fres(h)iyenda/. A writ by which one tenant in common sought to compel another to aid in repairing the proper ty held in common.

Idiy rask:lsyuw/. Writ of rescue or rescous. A writ which lay where cattle distrained, or persons arrested, were rescued from those taking them.

De rescussu

I diy ratornow habendow I. 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. 3 Bl.Comm. 149. Applied also to the sureties given by the plaintiff on commencing the action.

De retorno habendo

An abbreviation used for De ea re ita censuere (concerning that matter have so decreed), in recording the decrees of the Roman senate.

D.E.R.I.C.

Ida riyn k:llpaball. L. Fr. Guilty of nothing; not guilty.

De rien culpable

Coming from another; taken from some thing preceding; secondary. That which has not its origin in itself, but owes its existence to something foregoing. Anything obtained or deduced from another.

Derivative.

A suit by a shareholder to enforce a corporate cause of action. The corporation is a neces sary party, and the relief which is granted is a judgment against a third person in favor of the corporation. Price v. Gurney, Ohio, 324 U.S. 100, 65 S.Ct. 513, 516, 89 L.Ed. 776. An action is a derivative action when the action is based upon a primary right of the corporation, but is asserted on its behalf by the stockholder because of the

Derivative action.

444

DERIVATIVE ACTION corporation's failure, deliberate or otherwise, to act upon the primary right. Lehrman v. Godebaux Sugars, 207 Misc. 314, 138 N.Y.S.2d 163, 168. Procedure in such actior-s in federal courts is governed by Fed.R. Civil P. 23.1 . Most states also have similar procedural rules or statutes for such actions. Term is also used in reference to actions based on injury to another; e.g., action for loss of consortium by husband against third person for injuries to wife. See Consortium; also, Derivative liability. Items of property not other wise illegal but subject to forfeiture according to use to which they are put. Kane v. McDaniel, D.C.Ky., 407 F.Supp. 1239, 1242.

Derivative contraband.

Conveyances which presup pose 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 de feasances. 2 Bl.Comm. 324.

Derivative conveyances.

Evidence which is derived or spawned from other illegally obtained evidence is inad missible because of the primary taint. See Fruit of

Derivative evidence.

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 from specified source.

Ider;}geysh:m/. The partial repeal or abol ishing 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.

Derogation

Provision in an instrument of transfer such as a deed which diminishes or militates against the grant itself.

Derogation from grant.

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. Such a pro vision is anomalous.

Derogatory clause.

poisonous tree doctrine.

Derogatur legi, cum pars detrahitur; abrogatur legi,

Under this doctrine, a case is not properly removable unless it is within the subject matter jurisdiction of the state court from which it is removed. Harvey v. Price, D.C.Ill., 603 F.Supp. 1205, 1207.

Desafuero

Derivative jurisdiction doctrine.

There are two distinct categories of "derivative liability": in the first category is the action which a plaintiff may institute to redress a wrong done to another; in the second category is the action which a plaintiff may institute to redress a wrong done to himself which is proximately caused by a wrong done to another. Garfield v. U.S., D.C.Wis., 297 F.Supp. 891, 900. See also Derivative action; Vicarious liability.

Derivative liability.

Derivative suit. See Derivative action.

The common-law principle, codified repeatedly in the U.C.C., that a transferee of property acquires only the transferor's rights therein.

Derivative title.

Tort liability may be imposed on a principal for wrong committed by agent and to this extent the principal's liability is derivative. See also

Derivative tort.

Derivative liability; Vicarious liability.

Under the copyright law, a work based on a pre-existing work, such as · a translation, musical arrangement, fictionalization, motion picture version, abridgment or any other form in which a work may be recast, transformed or adapted, is a derivative work. Only the holder of copyright in the underlying work (or one acting with his permission) may prepare a derivative work. The preparation of such a work by any other party constitutes infringement. See Copyright Act, 17 U.S.C.A. § 101.

Derivative work.

To receive from a specified source or orIgm. Crews v. Commissioner of Internal Revenue, C.C.A.lO,

Derive.

Ider;}geyt;}r liyjay, k�m parz d;}trey(h);}t;}r; rebr;}geyt;}r liyjay, k�m prors;}s tol;}t;}r/. To derogate from a law is to take away part of it; to abrogate a law is to abolish it entirely.

cum prorsus tollitur

Ideysaf(u)werow/. In Spanish law, an irregu lar action committed with violence against law, custom, or reason. Idiy srelv;} gardiy;}/. A writ of safe guard allowed to strangers seeking their rights in Eng lish courts, and apprehending violence or injury to their persons or property.

De salva gardia

De salvo conductu

Idiy srelvow k;}nd�kt(y)uw/ . A writ

of safe conduct. I deysamortiysasyown/. 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 �quivalent in English.

Desamortizacion

Id;} sa viy/. L. Fr. Of his or her life; of his own life; as distinguished from pur autre vie, for anoth er's life.

De sa vie

I diy sk;}keriyow I. Of or concerning the exchequer. The title of a statute passed in the fifty-first year of Henry III.

De scaccario

To pass by succession; as when the estate vests by operation of law in the heirs immediately upon the death of the ancestor. 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. To go or pass to; often used as a word of transfer. As used in wills, the word is often regarded as a general expression equivalent to the words "go to" or "belong to," and as indicating a passing

Descend.

445

DESCRIPTION

of title by the force of the will rather than of the statute.

altero, another ancestor intervening between them.

See Descent.

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 neph ew, 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 consan guinity.

Descendant or descendent.

Those persons who are in the blood stream of the ancestor. Term means those descended from another, persons who proceed from a body of another such as a child or grandchild, to the remotest degree; it is the opposite of "ascendants". Bassett v. Merlin, Inc., Fla.App., 304 So.2d 543, 544. In the plural, the term means issue, offspring or posterity in general. Also, all those to whom an estate descends, whether it be in a direct or collateral line from the intestate. See Descent. Lineal descendant. One who is in the line of descent from the ancestor. The term may include an adopted child.

Descender.

Descent; in the descent.

See Formedon.

Legal suitability of a future interest such as a remainder or executory interest to pass by inheritance on death of the holder.

Descendibility of future interests.

Capable of passing by descent, or of being inherited or transmitted by devise (spoken of estates, titles, offices, and other property).

Descendible.

Hereditary succession. Succession to the own ership 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 anoth er, acquires the real estate of the latter as his heir at law. 2 Bl.Comm. 201. The title by inheritance is in all cases called descent, although by statute law the title is sometimes made to ascend. The division among those legally entitled thereto of the real property of intestates. See also Per capita; Per stirpes.

Descent.

Classification

Descents are of two sorts, lineal and collateral. Lin eal descent is descent in a direct or right line, as from father or grandfather to son or grandson. 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. 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 immediate ness 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 cui. 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 me diate, when the kindred is derived from him mediante

Descent was denoted, in the Roman law, by the term which is also used by Bracton, from which has been derived the succession of the Scotch and French jurisprudence. "successio,

Line of Descent

The order or series of persons who have descended one from the other or all from a common ancestor, con sidered 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 com mon descent from the same ancestor. Direct line.

A line of descent traced through those persons only who are related to each other directly as ascendants or descendants.

Maternal line. A line of descent or relationship be tween two persons which is traced through the mother of the younger. Paternal line.

A similar line of descent traced through

the father. The devolving of realty upon the heir on the death of his ancestor intestate.

Descent cast.

Another name for what was formerly called a "de scent 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. To narrate, express, explain, set forth, relate, recount, narrate, depict, delineate, portray; sketch. Of land, to give the metes and bounds.

Describe.

A delineation or account of a particular subject by the recital of its characteristic accidents and qualities.

Description.

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. 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.

DESCRIPTION

446

That part of a conveyance, advertisement of sale, etc., which identifies the land or premises intended to be affected. A fair portrayal of the chief features of the proposed law in words of plain meaning, so that it can be under stood by the persons entitled to vote. Sawyer Stores v. Mitchell, 103 Mont. 148, 62 P.2d 342, 348. That part of affidavit for search warrant describing the place to be searched. See also Identification.

Id;}skripsh(iy)ow p;}rsQwniy/. 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 intima tion 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.

Descriptio personre

In wills, it sometimes happens that the word heir is used as a descriptio persorue. A legacy "to the eldest son" of A would be a designation of the person. Containing a description; serving or aim ing to describe; having the quality of representing. Sawyer Stores v. Mitchell, 103 Mont. 148, 62 P.2d 342, 348. See also Identification.

Descriptive.

A trademark which merely de scribes the goods to which it is affixed. A descriptive mark will only be protected or registrable if the user can demonstrate secondary meaning. See also Secondary

Descriptive mark.

meaning.

If trademark imparts information directly, it is "de scriptive"; if it stands for an idea which requires some operation of the imagination connected with the goods, it is "suggestive"; the information imparted may con cern a characteristic, quality or ingredient of the prod uct. Union Carbide Corp. v. Ever-Ready, Inc., C.A.Ill., 531 F.2d 366, 378. See Descriptive mark.

Idiy skyuwteyjiyow h;}b€mdow I. 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 substi tutes or to pay escuage; that is a sum of money. 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.

De scutagio habendo

I diy siy biyniy j;}rendow I. behaving himself well; for his good behavior.

De se bene gerendo

For

To violate sanctity of, to profane, or to put to unworthy use. Offense consists of defacing, damaging,

Desecrate.

desecration.

Idiy sekt;} eM m;}lend;m;}m/. Of suit to a mill. An old English writ which lay to compel one to continue his custom (of grinding) at a mill. 3 Bl.Comm. 235.

De secta ad molendinum

The judicial mandate eliminating color of a person as a basis for disqualification to attend the school of his or her choice or to work at place of employment of his or her choice. See Brown decision;

Desegregation.

For description of criminal suspect, see Lineup.

Descriptive term.

polluting or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover his action. Model Penal Code, § 250.9. See also Deface; Defile; Flag

Discrimination.

To leave or quit with an intention to cause a permanent separation; to forsake utterly; to abandon. It is essentially willful in nature.

Desert.

The act by which a person abandons and forsakes, without justification, or unauthorized, a sta tion or condition of public, social, or family life, renounc ing its responsibilities and evading its duties. A willful abandonment of an employment or duty in violation of a legal or moral obligation.

Desertion.

Criminal desertion is a husband's or wife's abandon ment or willful failure without just cause to provide for the care, protection or support of a spouse who is in ill health or necessitous circumstances. See also Abandonment;

Desertion and non-support;

Non-support.

Adoption.

As used in statute providing that parental consent to adoption is not required when parent has wilfully deserted child evinces settled purpose to forego, abandon, or desert all parental duties and parental rights in child. Moody v. Voorhies, 257 Or. 105, 475 P.2d 579, 581.

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. For example, where one spouse, by his or her 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. Divorce law.

As a ground for divorce, an actual aban donment 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 marital relations, occurring without legal justifi cation either in the consent or the wrongful conduct of the other party. The elements of offense of "desertion" as ground for divorce are a voluntary intentional aban donment of one party by the other, without cause or justification and without consent of party abandoned. See also Constructive desertion, above; and Desertion and non-support.

447

DESIGNED

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. Desertion, within statute providing for forfeiture of wages of deserting seaman, consists of seaman's unconsented abandonment of duty by quitting ship before termination of engagement specified in arti cles he signed, without justification and with intention of not returning. Petition of Russo, D.C.Cal., 232 F.Supp. 650, 65l. Military law. Any member of the armed forces who

(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to re main away therefrom permanently; (2) quits his unit, organization, or place of duty with intent to avoid haz ardous duty or to shirk important service; or (3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or anoth er one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion. Code of Mili tary Justice, 10 U.S.C.A. § 885. Non-support.

Desertion is frequently accompanied by non-support, which may be a crime. See also Desertion and non-support; Non-support.

Obstinate desertion.

See Obstinate desertion.

While both desertion and non-support go hand in hand in many cases, they are distinguishable because a man may be guilty of deser tion and not guilty of non-support. The converse is also true because a man may be guilty of wilfully failing to support though he remains in the marital home. See also Desertion; Non-support.

Desertion and non-support.

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.

Deserving.

/deysonora/. In Spanish law, dishonor; inju ry; slander.

Deshonra

To form plan or scheme of, conceive and ar range in mind, originate mentally, plan out, contrive. Also, the plan or scheme conceived in mind and intend ed for subsequent execution; preliminary conception of idea to be carried into effect by action; contrivance in accordance with preconceived plan. A project, an idea. As a term of art, the giving of a visible form to the conceptions of the mind, or invention.

Design.

In evidence, purpose or intention, combined with plan, or implying a plan in the mind.

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. Design, in the view of the patent law, is that characteristic of a physi cal substance which, by means of lines, images, configu ration, and the like, taken as a whole, makes an impres sion, 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 total ensemble-in that indefinable whole that awakens some sensation in the observer's mind. Im pressions 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 unique ness and character. To indicate, select, appoint, nominate, or set apart for a purpose or duty, as to designate an officer for a command. To mark out and make known; to point out; to name; indicate. New Haven Federation of Teachers v. New Haven Bd. of Ed., 27 Conn.Sup. 298, 237 A.2d 373, 380. See also Identification.

Designate.

Means used to designate a candi date for a party nomination at a primary election or for election to party position.

Designating petition.

Designatio justiciariorum est a rege; jurisdictio vero ordinaria a lege /dez�gneysh(iy)ow j�stishiyeriyor�m est ey riyjiy; jur�sdiksh(iy)ow vir� ord�neriy� ey liyjiy/ The appointment of justices is by the king, but their ordinary jurisdiction by the law.

An addition to a name, as of title, profes sion, trade, or occupation, to distinguish the person from others. 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. The act of pointing out, distinguishing by marks of description, or calling by a distinctive title. See also Identification.

Designation.

/dez�gneysh(iy)\.iw p�rsowniy /. The description of a person or a party to a deed or contract. See also Descriptio personre.

Designatio personre

Designatio unius est exclusio alterius, et expressum

/dez�gneysh(iy)ow yuwmiy�s est �kskluwzh(iy)ow olt�ruyyes, et �kspres�m feys�t s�seriy tres�t�m/. 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.)

facit cessare tacitum

Contrived or taken to be employed for a particular purpose. Fit, adapted, prepared, suitable, appropriate. Intended, adapted, or designated. The term may be employed as indicating a bad purpose with evil intent.

Designed.

DESIGNEDLY Sometimes equivalent to the words "wilful ly," "knowingly," "unlawfully," and "feloniously."

Designedly.

De similihus ad similia eadem ratione procedendum

Idiy s�mil�b�s red s�miliy� iyeyd�m reyshiyowniy prows�dend�m 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]. est

I diy s�mibb�s ayd�m est juwd�krend�m/. Of [respecting] like things [in like cases], the judgment is to be the same.

De similihus idem est judicandum

To ask, to request. Sometimes, to empower or authorize. According to context or circumstances, the word may import a request or even a demand, but ordinarily means to wish for more or less earnestly. This term, used in a will in relation to the manage ment 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. The word "desire" may be as effective as if the word "devise" or "bequeath" had been used. Drin kard v. Hughes, Tex.Civ.App., 32 S.W.2d 935, 936. See also Intent.

Desire.

448 This word, in its original and most simple acceptation, signifies master and supreme lord; it is synonymous with monarch. A ruler with absolute pow er and authority, but taken in bad sense, as it is usually employed, it signifies a tyrant. In some nations, despot is the title given to the sovereign, as king is given in others.

Despot.

Idesp�tiz�m/. That abuse of government where the sovereign power is not divided, but united and unlimited in the hands of a single man, whatever may be his official title. It is not, properly, a form of govern ment.

Despotism

"Despotism" is not exactly synonymous with "autocra cy," 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. Ideseyziysmon/. In French law, when a person is declared bankrupt, he is immediately de prived of the enjoyment and administration of all his property; this deprivation, which extends to all his rights, is called "dessaisissement."

Dessaisissement

Idiy st�tyUwtow m�rk�teriyow/. The writ of statute merchant.

Id�sistm�nt/. The name of a doctrine un der which the court, in construing a foreign will, applies the law of the forum on the theory that · there is a hiatus.

De statuto mercatorio

I deysliyndey I. A term used in the Spanish law, denoting the act by which the boundaries of an estate or portion of a country are determined.

Destination.

Desistement

Deslinde

Ideysmemoriyaoows/. In Spanish law, persons deprived of memory.

Desmemoriados

Id� sown tor(t)/. L. Fr. Of his own wrong. An executor de son tort is an executor of his own wrong. A person who assumes to act as executor of an estate without 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, he is called in law an "executor of his own wrong," de son tort. 2 Bl.Comm. 507.

De son tort

Id� sown tor(t) d�miyn/. Of his own wrong. The law French equivalent of the Latin phrase de injuria (q. v.).

De son tort demesne

Despitus

I desp�t�s/. Contempt. A contemptible person.

I d�spoyl/. This word involves, in its significa tion, violence or clandestine means by which one is deprived of that which he possesses.

Despoil

IdeyspowharI. 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.

Despojar

I d�sponseysh�n/. The act of betrothing each other.

Desponsation

persons

I despowsoriyow I. In Spanish law� espous als; mutual promises of future marriage.

Desposorio

I diy st�tyuwtow steyp�liy I. writ of statute staple.

De statuto stapulre

The

The purpose to which it is intended an article or a fund shall be applied. Act of appointing or setting aside for a purpose. A testator gives a destina tion to a legacy when he prescribes the specific use to which it shall be put. Place to which something is sent; place set for end of journey; terminal point to which one directs his course. Instead of issuing a bill of lading to the consignor at the place of shipment a carrier may at the request of the consignor procure the bill to be issued at destination or at any other place designated in the request. Vpon request of anyone entitled as against the carrier to control the goods while in transit and on surrender of any outstanding bill of lading or other receipt covering such goods, the issuer may procure a substitute bill to be issued at any place designated in the request. V.C.C. § 7-305.

Destination hill.

Contract between seller and buy er by which risk of loss passes to buyer upon seller's tender of goods at destination. V.C.C. § 2-509(1)(b).

Destination contract.

Idest�nasyown dyllw per d� f�miyI. 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.

Destination du pare de famille

Not possessing necessaries of life; in condi tion of extreme want; bereft; lacking possessions and resources. Destitute of Bennington County by Van Santvoord v. Henry W. Putnam Memorial Hospital, 125 Vt. 289, 215 A.2d 134, 138. See also Indigent.

Destitute.

449

DETECTOR

or necessitous circumstances. Circumstanc es in which one needs the necessaries of life, which cover not only primitive physical needs, things absolutely in dispensable to human existence and decency, but those things, also, which are in fact necessary to the particu lar person left without support.

Destitute

Term is susceptible of applications in a variety of contexts, but in general, it means to ruin completely and may include a taking. State v. Robinson, 266 Minn. 166, 123 N.W.2d 812. To ruin the structure, organic existence or condition of a thing; to demolish; to injure or mutilate beyond possibility of use; to nullify. State by Clark v. Wolkoff, 250 Minn. 504, 85 N.W.2d 401, 410.

Destroy.

As used in policies of insurance, leases, and in mari time 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 demol ish or annihilate it. 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. Capability of being destroyed by some action or turn of events or by operation of law. In estates, a characteristic of contingent remainders which requires them to have become vested remainders on or before the time they are to become possessory or else suffer total destruction. See term below.

Destructibility.

Doctrine dealing with future interest which may be destroyed by failure of condition. Such destructible future interest as a contingent remainder is subject to Rule Against Perpe tuities unlike future interest which is destructible by act of the grantor or owner of present estate.

Destructibility of contingent remainders.

Trust susceptible of being terminat ed or destroyed by happening of certain events or by operation of law.

Destructible trust.

/ desw;)t(y)uwd/. Disuse; cessation or discon tinuance of use, especially in the phrase, "to fall into desuetude." Applied to obsolete practices and statutes.

Desuetude

/ diy suwp;)rown;)rey shiyowniy prestyUriy /. Old English writ of surcharge of pasture. A judicial writ which lay for him who was impleaded in the county court, for surcharging a com mon with his cattle, in a case where he was formerly impleaded for it in the sam,e court, and the cause was removed into one of the courts at Westminster.

superoneratione

pasturre

/ diy treby;)bs egz;)b€md;)s/. showing the tablets of a will.

De tabulis exhibendis

/d;)treshyeriy /. To seize or take into custody another's goods or person by writ of attachment or course of law.

Detachiare

Detail, Detail,

v. n.

To enumerate minutely, specify, particularize. An individual part, an item, a particular.

One who belongs to the army, but is only detached, or set apart, for the time to some particular duty or ser vice, and who is liable at any time to be recalled to his place in the ranks. To retain as the possession of personalty. To arrest, to check, to delay, to hinder, to hold, or keep in custody, to retard, to restrain from proceeding, to stay, to stop, to withhold. State v. King, 303 S.W.2d 930, 934. See Confinement; Custody.

Detain.

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. See also

Detainer.

Forcible detainer; Unlawful detainer.

Request filed by criminal justice agency with institu tion in which prisoner is incarcerated, asking institution either to hold prisoner for agency or to notify agency when release of prisoner is imminent. Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516. Under Interstate Agreement on Detainers, a "detainer" is a notification filed with institution in which prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction. It must be a formal notice initiated by a prosecuting or law enforcement agency within member state where crimi nal charges are pending that prisoner is wanted to face criminal charges and notice must be filed with institu tion in which prisoner is serving a sentence. Act of detaining. This term is used in policies of marine insurance, in the clause relating to "arrests, restraints, and detainments." The last two words are construed as equivalents, each meaning the effect of superior force operating directly on the vessel.

Detainment.

tallagio non concedendo /diy t;)leyjiyow non kons;)dendow /. Of not allowing talliage. The name given to the English statutes 25 and 34 Edw. I, restrict ing the power of the king to grant talliage.

A discovery or laying open of that which was hidden; investigation.

Detection.

One whose business it is to detect criminals or discover matters of secret and pernicious import for the protection of the pUblic. Such may be either a private detective engaged by an individual, or a member of a police force.

Detective.

Device which reveals the presence of electric waves or radioactivity or the presence of metal or indi cates the presence of eavesdropping equipment ("bug"). See also Polygraph; Wiretapping.

Detector.

De tempore cujus contrarium memoria hominum existit / diy temp;)riy kyuwj;)s k;)ntreriy;)m m;)moriy;) hom;)n;)m non ;)gzist;)t/. From time whereof the memory of man does not exist to the contrary.

non

/ diy temp;)riy in temp;)s ed red omniy;) remp;)r;)/. From time to time, and at all times.

De tempore in tempus et ad omnia tempora

DETENTIO

450

Id::l ton down mem::lriy n::l kur/. L. Fr. From time whereof memory runneth not; time out of memory of man.

De temps dont memorie ne court

Id::ltensh(iy)ow/. In the civil law, that condi tion 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.

Detentio

The act of keeping back, restraining or with holding, either accidentally or by design, a person or thing. Detention occurs whenever police officer accosts individual and restrains his freedom to walk away, or approaches and questions individual or stops individual suspected of being personally involved in criminal activi ty. People v. RICO, 97 C.A.3d 124, 158 Cal.Rptr. 573, 576. See Confinement; Detain; Detainer; Imprisonment;

Detention.

Preventive detention.

Judicial or quasi judicial proceed ing used to determine the propriety of detaining a per son on bail or a juvenile in a shelter facility. P. F. M. v. District Court In and For County of Adams, 184 Colo. 393, 520 P.2d 742. See Preliminary hearing.

Detention hearing.

A punishment or measure of prevention where a juvenile offender is sentenced to be sent to a reformatory school, to be there detained for a certain period of time.

Detention in a reformatory.

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 mo tive for the act.

Deter.

With respect to a commodity, consists of a constitutional hurt or impairment, involving some degeneration in the substance of the thing, such as that arising from decay, corrosion, or disintegration. With respect to values or prices, a decline.

Deterioration.

Liable to come to an end upon the happening of a certain contingency. Susceptible of be ing determined, found out, definitely decided upon, or settled. As to determinable Fee and Freehold, see those titles.

Determinable.

That which is ascertained; what is partic ularly designated.

Determinate.

Fixed period of hospital ization pursuant to civil commitment.

Determinate hospitalization. Determinate obligation.

See Obligation.

Sentence to confinement for a fixed period as specified by statute as contrasted with an indeterminate sentence, the duration of which is only partly governed by statute; the duration of the latter, in the main, being governed by behavior of prisoner. See also Sentence.

Determinate sentence.

The decision of a court or administra tive agency. It implies an ending or finality of a contro versy or suit. Piccone v. U. S., 186 Ct.CL 752, 407 F.2d 866, 873. To settle or decide by choice of alternatives or possibilities. The ending or expiration of an estate or

Determination.

interest in property, or of a right, power, or authority. The coming to an end in any way whatever. A "determination" is a "final judgment" for purposes of appeal when the trial court has completed its adjudi cation of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken, 90 Wis. 236, 279 N.W.2d 459, 463. Also, an estimate. As respects an assessment, the term implies judgment and decision after weighing the facts. See also Determination; Decision; Decree; Finding; Judgment; Opinion.

Document issued by a District Director of Internal Revenue Service, upon request of a taxpayer, giving an opinion as to the tax significance of a past or prospective transaction. Determination letters are most frequently used to clarify employee status, to determine whether a retirement or profit-sharing plan "qualifies" under the Internal Revenue Code, and to determine the tax exempt status of certain non-profit organizations.

Determination letter.

issues. The "determinative issues" which are to be embraced in a special verdict form are the ultimate issues which, when decided, will definitely settle the entire controversy between or among the parties and leave nothing for the court to do but enter judgment for party, or parties, in whose favor such determinative issues have been resolved by jury. Miller v. McAllister, 169 Ohio St. 487, 160 N.E.2d 231, 237.

Determinative

A philosophy which teaches that human behavior is governed, in the main, by pre-existing condi tions such as environment and family patterns and leaves no room for freedom of the will.

Determinism.

Anything which impedes or has a tendency to prevent; e.g. punishment is a "deterrent" to crime.

Deterrent.

I diy Oiy;)lowniyow I. A writ which lay for a person who was prevented from taking toll.

De theolonio

Idet::ln::ltl. 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. 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 demand ed. 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.

Detinet

Idet::ln(y)uw/ . 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. Possessory action for recovery of personal chattels un justly detained. Durst v. Durst, 232 Md. 311, 193 A.2d 26. See also Replevin. The action of detinue 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

Detinue

451

DE VENTRE INSPICIENDO Response by promisee by way of act to offer of promisor in a unilateral contract. See also Promissory estoppel.

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 tor tiously taken. But it is, upon principle, very unimpor tant in what manner the defendant's possession com menced, since the gist of the action is the wrongful detainer, and not the original taking. It is only incumbent upon the plaintiff to prove prop erty in himself, and possession in the defendant. The action of detinue is proper in every case where the owner prefers recovering the specific property to dam ages for its conversion, and no regard is had to the manner in which the defendant acquired the possession.

Detrimental reliance.

Idet:m(y)uw ;)v g6.dz in frreIJk mrer;)j/. A writ formerly available to a wife after a divorce, for the recovery of the goods given with her in marriage.

Deuterogamy

Detinue of goods in frank marriage

I d;)tinyuw;)t/. 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 judg ment of the court upon his title to the property claimed.

Detinuit

A temporary turning aside from usual or regu lar route, course or procedure or from a task or employ ment. See also Deviation. A temporary road or a longer road in temporary use because of an obstruction or state of disrepair on regu larly used road.

Detour.

The misappropriation by a servant of funds the property of his master; fraudulent abstraction of documents; or "abus de confiance" which is fraudu lently misusing or spending to anybody's prejudice goods, cash, bills, documents, or contracts handed over for a special object. See also Embezzlement.

Detournement.

The removal of property from one state to another upon a transfer of the title to it by will or inheritance.

Detraction.

De transgressione

I diy trrenzgreshiyowniy I.

A writ of

trespass. De transgressione, ad audiendum et terminandum

Idiy trrenzgreshiyowniy, red odiyend;)m et t;)rm;)nrend;)m/. A writ or commission for the hearing and determining any outrage or misdemeanor. 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, 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. See Consideration; Legal detriment.

Detriment.

In contracts, consideration of fered by promisee to promisor, especially in a unilateral contract which calls for an act from the promisee though the promisor may revoke his offer before the completion of the act. See also Consideration; Culpa in

Detriment to promisee.

contrahendo. Detunicari

Id;)tyuwn;)keray I. To discover or lay open to

the world. Idiy yuwn;) partiy I. 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 deed inter partes (q. v.).

De una parte

Id(y)uwt;)rog;)miy I. The act, or condition, of one who marries after the death of a former wife or husband.

I diy ;)ksoriy rrept;) ed ;)bd�kt;)/. Old English writ which lay where a man's wife had been ravished and carried away. A species of writ of trespass. 3 Bl.Comm. 139.

De uxore rapta et abducta

Devadiatus, or divadiatus

Id;)vrediyeyt;)sl. In old Eng lish law, an offender without sureties or pledges. Reduction in value of a currency or of a standard monetary unit. See also Revaluation.

Devaluation.

Wasteful use of the property of a deceased person, as for extravagant funeral or other unnecessary expenses. 2 Bl.Comm. 508.

Devastation.

I d;)vrest;)vir;)nt/. They have wasted. A term applied in old English law to waste by executors and administrators, and to the process issued against them therefor. See Devastavit.

Devastaverunt

I dev;)steyv;)t/. 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. A breach of trust or misappropriation of assets held in a fiduciary character; any violation or neglect of duty by an executor or administrator, involv ing loss to the decedent's estate, which makes him personally responsible to heirs, creditors, or legatees.

Devastavit

Idiy vrestow/ . Writ of waste. Old English 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 exhreredationem) of the plaintiff. 3 Bl.Comm. 227, 228. Abolished by St. 3 & 4 Wm. IV, c. 27.

De vasto

Idiy ventriy ;)nspis(h)iyendowI . A common law writ to inspect the body, where a woman feigned to be pregnant, to see whether she was with child. It lay for the heir presumptive to examine a widow suspected to be feigning pregnancy in order to

De ventre inspiciendo

DE VENTRE INSPICIENDO enable a supposititious heir to obtain the estate. 1 Bl.Comm. 456. It lay also where a woman sentenced to death pleaded pregnancy. 4 Bl.Comm. 395. This writ was also formerly recognized in America. See Matrons, jury of.

/ diy v;}rbow in v;}rb;)m/. Word for word. Literally, from word to word.

De verbo in verbum

To deprive or dispossess of a title or right (e.g. of an estate).

Devest.

Departure from established or usual conduct or ideology. 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 Cal.2d 815, 108 P.2d 425, 429. A voluntary departure by railroad carrier, without necessity or reasonable cause, from the regular 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. A wandering from the way, variation from the common way, from an established rule, standard, or position. S. J. Groves & Sons Co. v. West Virginia Turnpike Commission, D.C.W.Va., 164 F.Supp. 816, 821. In employment, departure of employee from his course of employment and duties to employer for pur poses entirely personal. Such term comes into use and is applied in workers' compensation cases and in actions against employer by third persons for injuries caused by employee. See also Scope of employment. In insurance, term refers to variance from the risks insured against, as described in the policy, without ne cessity or just cause, after the risk has begun. Such deviation may void the liability or responsibility of the insurer. In shipping, a voluntary, unnecessary or unexcused departure without reasonable cause from the course of the voyage insured, or an unreasonable delay in pursu ing the voyage, or the commencement of an entirely different voyage. The Willdomino v. Citro Chemical Co. of America, 272 U.S. 718, 47 S.Ct. 261, 262, 71 L.Ed. 491.

Deviation.

In wills and trusts, principle which permits variation from terms of trust where circum stances are such that purposes of trust would otherwise be defeated. Connecticut Bank & Trust Co. v. Johnson Memorial Hospital, 30 Conn.Sup. 1, 294 A.2d 586, 591. In agency, principle which permits agent to vary activity slightly from scope of master's permission. Johnson v. Maryland Casualty Co., C.C.A.Wis., 125 F.2d 337.

Deviation doctrine.

Examination permitted under Fed.Rules Civ.Proc., Rule 34 to determine whether a well is bottomed under another person's land. Williams v. Continental Oil Co., C.A.Okl., 215 F.2d 4.

Deviation well survey.

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. A plan or project; a scheme to trick or deceive; a stratagem or artifice, as in the laws relating to fraud and cheating. Also, an emblem, pictorial representation, or distin-

Device.

452 guishing mark or sign of any kind; as in the laws prohibiting the marking of ballots used in public elec tions with "any device." In patent law, a plan or contrivance, or an applica tion, adjustment, shaping, or combination of materials or members, for the purpose of accomplishing a particu lar result or serving a particular use, chiefly by mechan ical means and usually simple in character or not highly complex, but involving the exercise of the inventive faculty. That which is devised, or formed by design; a contri vance; an invention. Ernst and Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668. / diy v;)sin;)tow/ . From the neighborhood, or vicinage. 3 Bl.Comm. 360. A term applied to a jury.

De vicineto

/diy viiy ley;)k;) eym;)vend;)/. 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.

De vi laica amovenda

/dev;)lil) /. A term used in London of a barris ter recently admitted to the bar, who assists a junior barrister in his professional work, without appearing in any way in the matter.

Devilling

An instrument of torture, formerly used to extort confessions, etc. It was made of several irons, which were fastened to the neck and legs, and wrenched together so as to break the back.

Devil on the neck.

Devisable.

Capable of being devised.

/dev;)zeyv;)t vel non/. 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.

Devisavit vel non

/ d;)viiyz/. A testamentary disposition of land or realty; a gift of real property by the last will and testament of the donor. When used as a noun, means a testamentary disposition of real or personal property and when used as a verb, means to dispose of real or personal property by will. Uniform Probate Code, § 1-201(7). See also Bequest; Executory devise; Legacy. To contrive; plan; scheme; invent; prepare.

Devise

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 time 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. Devises are also classed as general or specific. A general devise is one

DIAGNOSIS

453 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. Specific devises are devises of lands particu larly 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 my other lands," is a general devise or a residuary devise. But all devises are (in effect) specific, even residuary devises being so. 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. A conditional devise is one which depends upon the occur rence 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 particu lar 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 limited 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. 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. A future interest taking effect as a fee in derogation of a defeasible fee devised or con veyed 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. 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. 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. 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. See also general definition above.

/ d:wayziy/. The person to whom lands or other real property are devised or given by will. In the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees. Uniform Probate Code, § 1-201(8).

Devisee

Residuary devisee. The person named in a will, who is

to take all the real property remaining over and above the other devises. /d�vayz�r / . A giver of lands or real estate by will; the maker of a will of lands; a testator.

Devisor

/d�v6y(�)r/d�vwar/. Fr. Duty. It is used in the statute of 2 Rich. II, c. 3, in the sense of duties or customs.

Devoir

The transfer or transition from one person to another of a right, liability, title, estate, or office. Transference of property from one person to another. Hermann v. Crossen, Ohio App., 160 N.E.2d 404, 408. See also Descent. 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.

Devolution.

/d�v6Iv/. 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 per�;on dying to a person living. See Descent; Devolution.

Devolve

Devy

/d�vay/. L. Fr. Dies; deceases.

/diy wohrrensh(iy)� kartiy/. Writ of warranty of charter. A writ which lay for him who was enfeoffed, with clause of warranty [in the charter of feoffment], 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. Abolished by St. 3 & 4 Wm. IV, c. 27.

De warrantia chartre

/diy worrensh(iy)� dayiyay/. 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 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.

De warrantia diei

Dextrarius

/dekstreriy�s/.

One at the right hand of

another. /dekstr�s deriy/ . To shake hands in token of friendship; or to give up oneself to the power of another person.

Dextras dare

Diaconate Diaconus

/ diyrek�n�t/ dayo / .

The office of a deacon.

/ diyrek�n�s/ . A deacon.

/ day�gn6ws�s/. 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

Diagnosis

DIAGNOSIS

454

of its symptoms. The art or act of recogmzmg the presence of disease from its symptoms, and deciding as to its character, also the decision reached, for determi nation of type or condition through case or specimen study or conclusion arrived at through critical percep tion 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. Tests to determine and identify the nature of a disease; including laboratory and explorato ry tests.

Diagnostic tests.

I dayalektaks/. That branch of logic which teaches the rules and modes of reasoning.

Dialectics

IdayrelajiyI. A rhetorical figure in which argu ments are placed in various points of view, and then turned to one point.

Diallage

Idayrelagas diy skakeriyow I. In old English law, 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.

Dialogus de scaccario

I dayanretakl . A logical reasoning in a progres sive manner, proceeding from one subject to another.

Dianatic

Idayeriyam/. suffice for the day.

Diarium

I dayeytam/. from day to day.

Diatim

Daily food, or as much as will In old records, daily; every day;

Idayka/. In old English law, a tally for accounts, by number of cuts (taillees), marks, or notches. See

Dica

Tallia; Tally.

I daykrestl. An officer in ancient Greece answer ing 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.

Dicast

Idiy kolona/. 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.

Di colonna

Idikta/. Opinions of a judge which do not embody the resolution or determination of the specific case be fore the court. Expressions in court's opinion which go beyond the facts before court and therefore are individu al views of author of opinion and not binding in subse quent cases as legal precedent. State ex reI. Foster v. Naftalin, 246 Minn. 181, 74 N.W.2d 249. See also Dic

Dicta

tum.

To order or instruct what is to be said or written. To pronounce, word by word, what is meant to be written by another. See Dictation.

Dictate.

In Louisiana, this term is used in a technical sense, and means to pronounce orally what is destined

Dictation.

to be written at the same time by another. It is used in reference to nuncupative wills. 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 not the identi ty of words used by him. One in whom supreme authority in any line is invested, one who rules autocratically, and one who prescribes for others authoritatively, and offer oppres sively. Houston Printing Co. v. Hunter, Tex.Civ.App., 105 S.W.2d 312, 317. In Roman law, 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.

Dictator.

Dictores. Dictum

Arbitrators.

I diktam/. A statement, remark, or observation.

Gratis dictum; a gratuitous or voluntary representation; one which a party is not bound to make. Simplex dictum; a mere assertion; an assertion without proof.

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, princi ple, or application of law, or the solution of a question suggested by the case at bar, but not necessarily in volved 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. 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 adjudica tion. Wheeler v. Wilkin, 98 Colo. 568, 58 P.2d 1223, 1226. Dicta are opinions of a judge which do not em body 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. In old English law, dictum meant an arbitrament, or the award of arbitrators. In French law, the report of a judgment made by one of the judges who has given it. 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.

Dictum de Kenilworth.

v. To expire; cease to live; the equivalent to the phrase "lose his life." See also Death.

Die,

Idayiyay diksh(iy)ow/. 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

Diei dictio

455

DIES UTILES

appointed, the name of the accused, and the crime charged. I day�m kloz�t �kstriym�m/. (Lat. He has closed his last day, i.e. 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. 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.

Diem clausit extremum

I dayiyz/. 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.

Dies

Idayiz �mor�s/. 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.

Dies amoris

Idayiyz ey kwow I. (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.

Dies a quo

I dayiyz siyd�t/. 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.

Dies cedit

in banco I dayiyz k�myuwniyz in breIJkow I. Regular days for appearance in court; called, also "common return-days."

Dies communes

Idayiyz deyt�s/. A day given or allowed (to a defendant in an action); amounting to a continuance. But the name was appropriate only to a continuance before a declaration filed; if afterwards allowed, it was called an "imparlance."

Dies datus

I dayiyz deyt�s in breIJkow I. A day given in the bench (or court of common pleas). A day given in bank, as distinguished from a day at nisi prius.

Dies datus in banco

Idayiyz deyt�s part�b�s/. A day given to the parties to an action; an adjournment or continuance.

Dies datus partibus

Dies

datus

parsh�ml .

prece partium Idayiyz deyt�s priysiy A day given on the prayer of the parties.

Dies dominicus

Idayiyz d�min�k�s/.

The Lord's day;

Sunday. I dayiyz d�min�k�s non est j�rid�k�s/. Sunday is not a court day, or day for judicial proceedings, or legal purposes.

Dies dominicus non est juridicus

I dayiyz �kskriys�nz/. In old English law, the added or increasing day in leap year.

Dies excrescens

Idayiyz frestay I. In Roman law, days on which the courts were open, and justice could be legally administered; days on which it was lawful for the prretor to pronounce {farO the three words "do ", "dico ': "addico". Hence called " triverbial days," answering to the dies juridici of the English law.

Dies fasti

Dies feriati

Idayiyz f�riyeytay/.

In the civil law, holi

days. Idayiyz greyshiyiy I. In old English practice, a day of grace, courtesy, or favor. The quarto die post was sometimes so called.

Dies gratire

Idayiyz �nsept�s A day begun is held as

Dies inceptus pro completo habetur

prow k�mpliytow h�biyt�r/. complete.

Idayiyz �ns�rt�s An uncertain day is

Dies incertus pro conditione habetur

prow k�ndishiyowniy h�biyt�r I. held as a condition.

Idayiyz int�rsayzay/. In Roman law, di vided days; days on which the courts were open for a part of the day.

Dies intercisi

I dayiyz j�rid�k�s/. A lawful day for the transaction of judicial or court business; a day on which the courts are or may be open for the transaction of business.

Dies juridicus

I dayiyz l�jit�m�s/. In the civil and old English law, a lawful or law day; a term day; a day of appearance.

Dies legitimus

Idayiyz markiyiy/. In old English law, the day of meeting of English and Scotch, which was annually held on the marches or borders to adjust their differences and preserve peace.

Dies marchire

Idayiyz niyfrestay I. In Roman law, days on which the courts were closed, and it was unlawful to administer justice; answering to the dies non juridici of the English law.

Dies nefasti

Dies non

I dayiyz non/.

An abbreviation of Dies non

juridicus (q. v.).

I dayiyz non j�rid�k�s/. A day not juridical; not a court day. A day on which courts are not open for business, such as Sundays and some holi days.

Dies non juridicus

Idayiyz peys�s/. (Days of peace.) The year was formerly divided into the days of the peace of the church and the days of the peace of the king, including in the two divisions all the days of the year.

Dies pacis

Idayiyz s�ler�s/. In old English law, a solar day, as distinguished from what was called "dies lunar is " (a lunar day); both composing an artificial day. See

Dies solaris

Day.

Idayiyz sowl�s/. In the civil and old English law, Sunday (literally, the day of the sun).

Dies solis

Idayiyz yuwt�liyz/. Juridical days; useful or available days. A term of the Roman law, used to designate those especial days occurring within the limits

Dies utiles

DIES UTILES

456

of a prescribed period of time upon which it was lawful, or possible, to do a specific act. A general legislative assembly is sometimes so called on the continent of Europe.

Diet.

/dayiyt�/. A day's journey; a day's work; a day's expenses.

Dieta

/day �t fay/(d�lektow et f�diylay)/. L. Lat. In old writs, an abbreviation of dilecto et fideli (to his beloved and faithful).

Di. et fi.

/dyuw ey mon dr(w)6/. Fr. God and my right. The motto of the royal arms of England, first assumed by Richard I.

Dieu et mon droit

/dyuw son aktl. L. Fr. In old law, God his act; God's act. An event beyond human foresight or controL See Act of God.

Dieu son acte

Die without issue. Diffacere

See Dying without issue.

/d�feys�riy/ .

To destroy; to disfigure or de

face. In an agreement for submission to arbitra tion, a disagreement or dispute. As respects contract specifications or material described therein, a state of being unlike. Disagreement in opinion, interpretation or conclusion. Instance or cause of disagreement. See also Disagreement.

Difference.

/ d�fors(h)(i)yeriy/ . 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.

Difforciare

Diffuse.

To spread widely; scatter; disperse.

or digamy /dig�miy /. Second marriage; mar riage to a second wife after the death of the first, as "bigamy," in law, is having two wives at once. Original ly, a man who married a widow, or married again after the death of his wife, was said to be guilty of bigamy.

Digama,

A collection or compilation, embodying the chief matter of numerous books, articles, court decisions, etc. in one, disposed under proper heads or titles, and usual ly by an alphabetical arrangement, for facility in refer ence.

Digest.

A reference to the "Digest," or "Dig.," is often under stood to designate the Digest (or Pandects) of the Justini an collection; that being the digest par eminence, and the authoritative compilation of the Roman law. American Digest System.

The American Digest System is a subject classification scheme whereby digests of decisions that were reported chronologically in the vari ous units of the National Reporter System are rear ranged by subject, bringing together all cases on a similar point of law. The system divides the subject of law into seven main classes. Each class is then divided into sub-classes and then each sub-class into topics. There are over 400 digest topics, each of which corre sponds to a legal concept. The system consists of a Century Digest (1658-1896), eight Decennial Digests (1897-1905, 1906-1915, 1916-1925, 1926-1935, 19361945, 1946-1955, 1956-1966, and 1966-1976), (the Ninth Decennial Digest, Part 1 (1976-1981), the Ninth Decen nial Digest, Part 2 (1981-1986), and the General Digest, 7th Series (1986 to date). The American Digest System is the master index to all reported case law. See also Key number system; and Special digests, below. Special digests.

Decisions included in the American Digest System are as well included in special digests covering the federal courts and also in regional, state, and topical digests. The "U.S. Supreme Court Digest" covers decisions of the U.S. Supreme Court. The Feder al Digest (cases decided prior to 1939), Modern Federal Practice Digest (1939-1961), West's Federal Practice Di gest 2d (1961-1975) and West's Federal Practice Digest 3rd and 4th (1975 to date) cover Federal court cases. Specialty federal digests include the Bankruptcy Digest, the Claims Court Digest, and West's Military Justice Digest. State court decisions from geographical areas are also published in "Regional Digests" (Atlantic, Northwestern, Pacific, Southeastern, Southern Digests; several of these are in 1st and 2d series). A lso, individu al "State Digests" are published for most states. Other specialty digests include West's Education Law Digest and the Merit Systems Protection Board Digest. /d�jest�/. Digests. Pandects of Justinian.

Digesta

An index to reported cases, providing brief statements of court holdings or facts of cases, which is arranged by subject and subdivided by jurisdiction and courts. See American Digest System; Special digests, below.

Digests.

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 particu lar 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.

Dignitary.

One of the titles of the

The ordinary name of the Pandects of Justini an, which are now usually cited by the abbreviation "Dig." instead of "Ff.," as formerly. Sometimes called "Digest," in the singular. See also Digest.

In canon law, a person holding an ecclesias tical benefice or dignity, which gave him some pre-emi nence 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.

In English distinction of honor. real hereditaments, property or estate.

Dignity.

law, an honor; a title, station, or Dignities are a species of incorpo in which a person may have a 2 BLComm. 37; 1 BLComm. 396.

/dayjuwd�keysh�n/ . Judicial decision or determination.

Dijudication

457 Idiylasy6wn/. 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.

Dilacion

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 build ings 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 build ings 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 BLComm. 91.

Dilapidation.

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 state of decay, or the pulling down of the building or any part of it. I d�leyshiy6wniyz in liyjiy s:lnt owdiy6wsiy I. Delays in law are odious.

Dilationes in lege sunt odiosre

Idil�t(o)riy/. Tending or intended to cause de lay or to gain time or to put off a decision.

Dilatory

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. See also Dilatory pleas.

Dilatory defense.

Such as do not tend to defeat the action, but only to retard its progress.

Dilatory exceptions.

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. Davis v. Thie de, 138 Ind.App. 537, 203 N.E.2d 835. Under modern civil procedure such defenses are raised by motion or answer. See Plea (Plea in abatement).

Dilatory pleas.

Vigilant activity; attentiveness; or care, of which there are infinite shades, from the slightest mo mentary thought to the most vigilant anxiety. Atten tive and persistent in doing a thing; steadily applied; active; sedulous; laborious; unremitting; untiring. National Steel & Shipbuilding Co. v. U. S., 190 Ct.CL 247, 419 F.2d 863, 875. The attention and care required of a person in a given situation and is the opposite of negligence. Turnquist v. Kjelbak, N.D., 77 N.W.2d 854, 861.

Diligence.

The civil law is in perfect conformity with the com mon law. It lays down three degrees of diligence,-ordi-

DI:hIGENT INQUIRY nary (diligentia); extraordinary (exactissima diligentia); slight (levissima diligentia). 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. 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 dil igence, 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. See also Care. Due diligence. Such a measure of prudence, activity, or

assiduity, as is properly to be expected from, and ordi narily exercised by, a reasonable and prudent man un der the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case. 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. 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. 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 protection 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. 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.

Reasonable diligence.

A fair, proper and due degree of care and activity, measured with reference to the partic ular circumstances; such diligence, care, or attention as might be expected from a man of ordinary prudence and activity.

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 diligence of an ordinary person or non-specialist.

Attentive and persistent in doing a thing; steadily applied; active; sedulous; laborious; unremit ting; untiring.

Diligent.

Such inquiry as a diligent man, in tent upon ascertaining a fact, would ordinarily make, and it is inquiry made with diligence and good faith to

Diligent inquiry.

DILIGENT INQUIRY

458

ascertain the truth, and must be an inquiry as full as the circumstances of the situation will permit. Lie pelt v. Baird, 17 Il1.2d 428, 161 N.E.2d 854, 857. / d;}lijiyeyt;}s/ .

Diligiatus

(Fr.

De lege ejectus, Lat.)

Outlawed. Rule used in construction of statutes delegating authority to local government: " . . [AJ municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily implied or nec essarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable . " Merriam v. Moody's Execu tors, 25 Iowa 163, 170 (1868).

Dillon's Rule.

In corporate law, refers to the reduction in value of outstanding shares resulting from the issuance of additional shares. The dilution may be of voting power if shares are not issued proportionately to the holdings of existing shareholders, or it may be financial, if shares are issued disproportionately and the price at which the new shares are issued is less than the market or book value of the outstanding shares prior to the issuance of the new shares.

Dilution.

A trademark doctrine protecting strong marks against use by other parties even where there is no competition or likelihood of confusion. Con cept is most applicable where subsequent user used the trademark of prior user for a product so dissimilar from the product of the prior user and there is no likelihood of confusion of the products or sources, but where the use of the trademark by the subsequent user will lessen uniqueness of the prior user's mark with the possible future result that a strong mark may become a weak mark. Holiday Inns, Inc. v. Holiday Out in America, C.A.Fla., 481 F.2d 445, 450.

Dilution doctrine.

Dimidia,

dimidium,

dimidius

/ d;}midiy;}(m)/ d;}miy

diy;}(s)/. Half; a half; the half. Dimidietas

/dim;}day;}tres/ .

The moiety or half of a

thing. This doctrine recog nizes that although an accused was not suffering from a mental disease or defect when the offense was commit ted sufficient to exonerate him from all criminal respon sibility, his mental capacity may have been diminished by intoxication, trauma, or mental disease so that he did not possess the specific mental state or intent essential to the particular offense charged. State v. Correra, R.I., 430 A.2d 1251, 1253. See also Diminished responsibility

Diminished capacity doctrine.

doctrine.

/d;}min;}sht r;}spon s�bil�tiy d6ktr�n/. Term used to refer to lack of capaci ty to achieve state of mind requisite for commission of crime. McGuire v. Superior Court for Los Angeles County, 274 Cal.App. 583, 79 Cal.Rptr. 155, 161. The concept of diminished responsibility, also known as par tial insanity, permits the trier of fact to regard the impaired mental state of the defendant in mitigation of

Diminished responsibility doctrine

the punishment or degree of the offense even though the impairment does not qualify as insanity under the pre vailing test. A number of courts have adopted the concept. In some jurisdictions, mental retardation and extremely low intelligence will, if proved, serve to re duce first degree murder to manslaughter. See also Insanity.

/dim�n(y)uwsh(iy)ow/. In the civil law, dimi nution; a taking away; loss or deprivation. Diminutio capitis, loss of status or condition. See Capitis diminutio.

Diminutio

/dim�n(y)uwsh�n/. Incompleteness. Act or process of diminishing, taking away, or lessening. A word signifying that the record sent up from an inferior to a superior court for review is incomplete, or not fully certified.

Diminution

Rule of damages which provides for difference between "before" and "after" value of property which has been damaged or taken. Big Rock Mountain Corp. v. Stearns-R6ger Corp., C.A.S.D., 388 F.2d 165, 168. If breach of contract results in defective or unfinished construction, and loss in value to injured party is not proved with sufficient certainty, the affected party may recover damages based on diminution in market price of property caused by breach. Restate ment, Second, Contracts, § 348(2)(a). See also Damages (Expectancy damages).

Diminution in value.

Diminution of damages.

See Mitigation of damages.

/ d�maysay/. In old conveyancing, I have de mised. 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.

Dimisi

/ d�mays�tI. mised. See Dimisi.

Dimisit

In old conveyancing, [heJ has de

/ dim�s6riyiy lit�riy/. In the civil law, letters dimissory or dismissory, commonly called "apostles" (qure vulgo apostoli dicuntur). See Apostoli,

Dimissorire litterre

Apostles.

/ dim�soriy let�rz/. Where a candi date 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.

Dimissory letters

Dinarchy

/daynarkiy/.

A government of two persons.

/day6s�s;}n/. Belonging to a diocese; a bishop, as he stands related to his own diocese.

Diocesan

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 jurisdic tion, and administering the other branches of the eccle siastical law.

Diocesan courts.

A mission which does missionary work in single diocese.

Diocesan mission.

/day�s�s/. The territorial extent of a bishop'S jurisdiction. The circuit of every bishop's jurisdiction.

Diocese

459

DIRECT ESTOPPEL

/dayiykiy;}/. The district over which a bishop exercised his spiritual functions.

Dioichia

In the civil law, a royal charter; letters pat ent granted by a prince or sovereign. Instrument con ferring some honor, privilege, or authority. Commonly used to denote document given by educational institu tion on graduation and awarding of degree.

Diploma.

The art and practice of conducting negotia tions between foreign governments for the attainment of mutually satisfactory political relations. Negotiation or intercourse between nations through their representa tives. The rules, customs, and privileges of representa tives at foreign courts.

Diplomacy.

In international law, a general name for all classes of persons charged with the negotia tion, transaction, or superintendence of the diplomatic business of one nation with that of another. See also

Diplomatic agent.

Ambassador.

Established and formal commu nications and acknowledgment between one country and another in which diplomatic agents are exchanged.

Diplomatic relations.

The science of diplomas, or of ancient writings and documents. The art of judging of ancient charters, public documents, diplomas, etc., and discrimi nating the true from the false.

Diplomatics.

/dips;}meyn(i)y;}/. A mental disease charac terized by an uncontrollable desire for intoxicating drinks. An irresistible impulse to indulge in intoxi cation, either by alcohol or other drugs.

Dipsomania

An action by insured directly against insurer rather than against tortfeasor's indemnity poli cy. Hand v. Northwestern Nat. Ins. Co., 255 Ark. 802, 502 S.W.2d 474. Action by a stockholder to enforce right of action existing in him as contrasted with a derivative suit in behalf of corporation. Citizens Nat'l Bank of St. Petersburg v. Peters, Fla.App., 175 So.2d 54, 56.

Direct action.

Direct and proximate cause. See Direct cause.

A direct attack on a judgment or decree is an attempt, for sufficient cause, to have it annulled, 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. Er nell v. O'Fiel, Tex.Civ.App., 441 S.W.2d 653, 655. A direct attack on a judicial proceeding is an attempt to void or correct it in some manner provided by law. Compare Collateral attack.

Direct attack.

That which sets in motion train of events which brings about result without intervention of any force operating or working actively from new and inde pendent source; or, as one without which the injury would not have happened. Norbeck v. Mutual of Oma ha Ins. Co., 3 Wash.App. 582, 476 P.2d 546, 547. See

Direct cause.

Cause; Proximate cause.

A method of accounting for bad debts whereby a deduction is permitted only when an account becomes partially or completely worthless.

Direct charge-off method.

/ dips;}meyniyrek/. A person subject to dip somania. One who has an irresistible desire for alcohol ic liquors. See Insanity.

Direct contempt.

/ diptik;}/. Diptychs; tablets of wood, metal, or other substance, used among the Romans for the pur pose 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.

Direct costs.

Dipsomaniac

Diptycha

To point to; guide; order; command; in struct. To advise; suggest; request.

Direct,

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. Carter v. Carter Coal Co., App.D.C., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1 160. 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. In the usual or regular course or order, as distinguished from that which diverts, interrupts, or opposes. The opposite of cross, contrary, collateral or remote. Without any intervening medium, agency or influ ence; unconditional.

Such contempt consists of contuma cious words or acts expressed in presence of court, while "indirect contempt" consists of similar misconduct or other disobedient acts performed outside court's pres ence. State v. Wisniewski, 103 N.M. 430, 708 P.2d 1031, 1035. See also Contempt.

Costs of direct material and labor, and variable overhead incurred in producing a product.

Direct damages.

See Damages.

In a case in which the party with the burden of proof has failed to present a prima facie case for jury consideration, the trial judge may order the entry of a verdict without allowing the jury to consider it, because, as a matter of law, there can be only one such verdict. Fed.R.Civil P. 50(a). In a criminal case, in federal court, the judge may render a judgment of acquittal in favor of defendant (in place of a motion for directed verdict, what has been abolished). Fed.R. Crim.P. 29. A directed verdict may be granted either on the court's own initiative or on the motion of a party. See also Verdict.

Directed verdict.

Form of estoppel by judgment where issue has been actually litigated and determined in action between same parties based upon same cause of action. Napper v. Anderson et aI., C.A.Tex., 500 F.2d 634, 636. See also Collateral estoppel doctrine.

Direct estoppel.

DIRECT EVIDENCE

460

Evidence in form of testimony from a witness who actually saw, heard or touched the subject of questioning. State v. Baker, 249 Or. 549, 438 P.2d 978, 980. Evidence, which if believed, proves existence of fact in issue without inference or presumption. State v. McClure, Mo.App., 504 S.W.2d 664, 668. 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 evi dence, which is often called "indirect." Direct evidence means evidence which in the first instance applies di rectly to the factum probandum, or which immediately 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.

Direct evidence.

Evidence that directly proves a fact, without an infer ence or presumption, and which in itself, if true, conclu sively establishes that fact. Calif.Evid.Code. Compare Circumstantial evidence.

The first interrogation or exami nation of a witness, on the merits, by the party on whose behalf he is called. The first examination of a witness upon a matter that is not within the scope of a previous examination of the witness. Calif.Evid.Code.

Direct examination.

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 con ducted 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. Compare Cross examination. tion; Redirect examination.

See also

Duplicity.

Appeal from two separate judg ments or from judgment and order or from two indepen dent orders, both of which are appealable. City of Duncan v. Abrams, 171 Okl. 619, 43 P.2d 720, 723.

Duplicitous appeal.

The technical fault in common law 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. Such duplicity of pleading in civil actions is permitted under Rule of Civil Procedure 8(e).

Duplicity.

Rule of "duplicity" prohibits the simultaneous charg ing of several distinct, unrelated crimes in one indict ment. Mechling v. Stayton, D.C.Va., 361 F.Supp. 770, 772. The joining in a single count of two or more distinct and separate offenses. State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 472 A.2d 1050, 1057. See e.g. Fed.R.Crim.P. 8(a). See also Multiplicity of actions or suits.

Deliberate deception or double dealing. A pathological condition in volving the palmar fascia of the hands.

Dupuytren's contraction.

Durable goods.

See Goods.

Leases reserving a rent payable annu ally, 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.

Durable leases.

Durable power of attorney.

See Power of attorney.

Dura mater Id(y)ur;;, meyt;;,r/.

The tough, membranous, outer covering of the brain and spinal cord.

Durante Id(y);;,rrentiy/.

Lat. During. A word of limita

tion in old conveyances. Durante absentia Id(y);;,rrentiy ;;,bsensh(iy);;,/.

During absence. In some jurisdictions, administration of a dece dent'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 Id(y);;,rrentiy biyniy plres;;,tow/.

During good pleasure. The ancient tenure of English judges was durante bene placito. 1 Bl.Comm. 267, 342.

Double right.

Durante minore retate I d(y);;,rrentiy m;;,noriy iyteytiyI.

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. Such duplicity was not permitted in common law pleading, but is allowed under Rule of Civil Procedure 8(e). In an information, the joinder of separate and distinct offenses in one and the same count. State v. Seward, 163 Kan. 136, 181

During minority. 2 Bl.Comm. 503. Words taken from the old form of letters of administration.

Duplicitous Id(y)uwplis;;,t;;,s/.

Durante viduitate Id(y);;,rrentiy v;;,dyuw;;,teytiy/.

During widowhood. 2 Bl.Comm. 124. Durante casta viduitate, during chaste widowhood.

Durante virginitate I d(y);;,rrentiy v;;,rjin;;,teytiy I.

virginity (so long as she remains unmarried). Durante vita Id(y);;,rrentiy vayt;;,/.

During life.

During

DURATION Extent, limit or time. during which anything exists.

Duration.

504 The portion of time

Interest. The period of time during which an interest in property lasts. Trust. The period of time during which a trust exists before its termination. Any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise would not (or would). Subjecting person to improper pressure which overcomes his will and coerces him to comply with demand to which he would not yield if acting as free agent. Head v. Gadsden Civil Service Bd., Ala.Civ.App., 389 So.2d 516, 519. Application of such pressure or constraint as compels man to go against his will, and takes away his free agency, destroying power of refusing to comply with unjust demands of another. Haumont v. Security State Bank, 220 Neb. 809, 374 N.W.2d 2, 6. A condition where one is induced by wrongful act or threat of another to make a contract or perform a tortious act under circumstances which deprive him of exercise of his free will. Hyde v. Lewis, 25 Ill.App.3d 495, 323 N.E.2d 533, 537. Includes any conduct which overpowers will and coerces or constrains performance of an act which otherwise would not have been per formed. Williams v. Rentz Banking Co., 1 12 Ga.App. 384, 145 S.E.2d 256, 258. Duress may be a defense to a criminal act, breach of contract, or tort because an act to be criminal or one which constitutes a breach of contract or a tort must be voluntary to create liability or responsibility. A contract entered into under duress by physical compulsion is void. Also, if a party's manifestation of assent to a contract is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim. Re statement, Second, Contracts §§ 174, 175. As a defense to a civil action, it must be pleaded affirmatively. Fed.R.Civil P. 8(c). As an affirmative defense in criminal law, one who, under the pressure of an unlawful threat from another human being to harm him (or to harm a third person), commits what would otherwise be a crime may, under some circumstances, be justified in doing what he did and thus not be guilty of the crime in question. See Model Penal Code § 2.09. See also Coercion; Economic duress; Extortion; Undue

Duress.

influence.

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 surren der, the act is "duress of goods". Sistrom v. Anderson, 51 Cal.App.2d 213, 124 P.2d 372, 376.

Duress of goods.

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. See also Duress.

Duress of imprisonment.

Duressor /d(y)�res�r/.

One who subjects another to duress; one who compels another to do a thing, as by menace.

Duress per minas / d(y)�res p;}r mayn�s/.

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. See Metus.

Durham / d�hr�m/.

A county palatine in England, the jurisdiction of which was vested in the Bishop of Dur ham until the statute 6 & 7 Wm. IV, c. 19 vested it as a separate franchise and royalty in the crown. The juris diction of the Durham Court of Pleas was transferred to the Supreme Court of Judicature by the Judicature Act of 1873. 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. This test of criminal responsibility (as first adopted in 1954 by the Court of Appeals of the District of Columbia in the cited case) was rejected by the same Court in 1972 when it adopted the ALI criterion of insanity of Model Penal Code § 4.01(1). U.S. v. Brawner, 471 F.2d 969. This same Model Penal Code test has also been adopted by a number of other courts. See Insanity.

Durham rule.

Throughout the course of; throughout the con tinuance 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.

Within workers' compen sation law, means working-hours plus reasonable peri ods for ingress and egress. See also Course of employ

During the hours of service.

ment.

Period beginning with swearing of jury and ending with rendition of verdict. Period com mencing with presentation of indictment by grand jury to court and terminating with final judgment.

During the trial.

Dutch auction. See Auction.

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.

Dutch lottery.

505 In its most usual signification this word is the synonym of imposts or customs; i.e. tax on imports; but it is sometimes used in a broader sense, as including all manner of taxes, charges, or governmental impositions. See also Customs; Most favored nation clause; Tariff;

Duties.

Toll; Tonnage-duty.

Taxes levied upon the removal from one state to another of property acquired by succes sion or testamentary disposition. Fredrickson v. Louisi ana, 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 of detraction.

Duties on imports Id(y)uwtiyz 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. See Customs Duties. A human action which is exactly conformable to the laws which require us to obey them. Legal or moral obligation. An obligation that one has by law or con tract. Obligation to conform to legal standard of reason able conduct in light of apparent risk. Karrar v. Barry County Road Com'n, 127 Mich.App. 821, 339 N.W.2d 653, 657. Obligatory conduct or service. Mandatory obligation to perform. Huey v. King, 220 Tenn. 189, 415 S.W.2d 136. An obligation, recognized by the law, re quiring actor to conform to certain standard of conduct for protection of others against unreasonable risks. Samson v. Saginaw Professional Bldg., Inc., 44 Mich. App. 658, 205 N.W.2d 833, 835. See also Legal duty;

Duty.

Obligation.

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. " Sometimes, however, the term is used synonymously with debt. 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. In negligence cases term may be defined as an obli gation, to which law will give recognition and effect, to comport to a particular standard of conduct toward another, and the duty is invariably the same, one must conform to legal standard of reasonable conduct in light of apparent risk. Merluzzi v. Larson, 96 Nev. 409, 610 P.2d 739, 741 . The word "duty" is used throughout the Restatement of Torts to denote the fact that the actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor's conduct is a legal cause. Restatement, Second, Torts § 4. See Care; Due care. 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.

DWELLING It also denotes a tax or impost due to the government upon the importation or exportation of goods. See 19 V.S.C.A. See also Customs; Customs duties; Tariff; Toll; Tonnage-dUty.

Judicial duty.

See Judicial.

Products or merchandise of foreign origm that are not subject to import or export taxes. See

Duty free.

Customs duties.

A charge upon a vessel as an instru ment of commerce for entering, lying in or leaving a port, and includes all taxes and duties, regardless of name or form. Marine Lighterage Corporation v. Luck enbach S. S. Co., 139 Misc. 612, 248 N.Y.S. 71, 72.

Duty of tonnage.

Such a quantity of water necessary when economically conducted and applied to land with out unnecessary loss as will result in the successful growing of crops.

Duty of water.

Obligation to take some action to prevent harm to another and for failure of which there may or may not be liability in tort depending upon the circum stances and the relationship of the parties to each other. See Emergency doctrine; Humanitarian doctrine.

Duty to act.

Duumviri Id(y)uwamv;}ray/.

(From duo, two, and viri, men.) A general appellation among the ancient Ro mans, given to any magistrates elected in pairs to fill any office, or perform any function.

Duumviri municipales were two annual magistrates in the towns and colonies, having judicial powers. Duumviri navales were officers appointed to man, equip, and refit the navy. Dux I daksl .

A military governor of a province. A military officer having charge of the borders or frontiers of the empire, called "dux limitis. " 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. In feudal and old European law, duke; a title of honor, or order of nobility. 1 Bl.Comm. 397. To have an abode; to reside; to inhabit; to live in a place. More than mere physical presence is some times required. It must be in conformity with law. Kaplan v. Tod, 267 V.S. 228, 45 S.Ct. 257, 69 L.Ed. 585. To abide as a permanent residence or for a time. Term is synonymous with inhabit, live, sojourn, reside, stay, rest. See also Domicile; Residence.

Dwell.

The house or other structure in which a person or persons live; a residence; abode; habitation; the apartment or building, or group of buildings, occu pied by a family as a place of residence. Structure used as place of habitation.

Dwelling.

In conveyancing, includes all buildings attached to or connected with the house. In criminal law (e.g. burgla ry), means a building or portion thereof, a tent, a mobile home, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or resi dence.

DWELLING

506

Under statute prohibiting breaking and entering a "dwelling house" the test for determining if a building is such a house is whether it is used regularly as a place to sleep. Wallace v. State, 63 Md.App. 399, 492 A.2d 970, 973. In most jurisdictions, a person in his dwelling is permitted to use even deadly force to protect himself, his household and the house itself from attack on the principle that a person's house is his castle. State v. Couch, 52 N.M. 127, 193 P.2d 405. Model Penal Code §§ 3.11, 3.06(3)(d).

Dwelling defense.

In genealogical tables, a common abbreviation for "died without issue." Also, abbreviation for offense of "driving while intoxicated" (q. v.).

D.W.I.

National Motor Vehicle Theft Act (1919) which makes it a criminal offense to transport a stolen motor vehicle in interstate or foreign commerce know ing it to be stolen or to receive or conceal such a motor vehicle in interstate or foreign commerce knowing it to be stolen, though knowledge of its interstate transporta tion is not essential to guilt. Odom v. U. S., C.A.Fla., 377 F.2d 853. 18 U.S.C.A. §§ 2311-2313.

Dyer Act.

Dying declaration.

See Declaration.

Dying without a child either before or after the decedent's death. At common law this phrase imports an indefinite failure of issue, and not a dying without issue surviving at the time of the death of the first taker. But this rule has been changed in many decisions, with many states having held that the expression "dying without issue," and like expres sions, have reference to the time of the death of the party, and not to an indefinite failure of issue. See also

Dying without issue.

Failure of issue.

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. 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. 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. Further instruction given by the trial judge to jury when the jury have reported an inability to agree on a verdict in a criminal case. In the further instructions, the judge advises them of their obligation to consider the opinions of their fellow jurors and to yield their own views where possible. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. This type of jury instruction (also called "Allen charge") is prohibited in certain states; e.g. California, People v. Gainer, 19 Ca1.3d 835, 566 P.2d 997, 139 Cal.Rptr. 86l . See also Allen charge.

Dynamite instruction.

Dynasty / dayn�stiy/ din�stiy /.

A succession of rules in the same line or family. Powerful and influential group or family which continues in existence for a considerable time.

Dysnomy /disn�my /.

Bad legislation; the enactment of

bad laws. Dyspareunia /disp�riiwniy�/.

Incapacity of a woman to sustain the act of sexual intercourse except with great difficulty and pain; anaphrodisia.

E As an abbreviation, this letter may stand for ItEx_ chequer," "English," "Edward," "Equity," "East," "East ern," "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.

Ealder leld�r/,

Sax. The water or river; also the mouth of a river on the shore between high and low water-mark.

Ealdor-biscop I eld�rbish�p/.

Ea.

A distributive adjective pronoun, which denotes or refers to every one of the persons or things men tioned; 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. The word "any" is equivalent to "each." Conerty v. Richtsteig, 308 IlLApp. 321, 31 N.E.2d 351. "Each" is synonymous with "all" and agrees in inclusiveness but differs in stress; "all" col lects and "each" distributes. Knox Jewelry Co., Inc. v. Cincinnati Ins. Co., 130 Ga.App. 519, 203 S.E.2d 739, 740.

eldir or chief.

Ealderman I eld�rm�n/, or ealdorman I 6ld�rm�n/.

The name of a Saxon magistrate; alderman; analogous to earl among the Danes, and senator among the Romans. See Alderman.

Ealdorburg

chief city.

Each.

and selling beer.

eadem

liyeyd�m est The same reason, the

est

reysh(iy)ow, iyeyd�m est leks/. same law.

lex

Ea est accipienda interpretatio, qure vitio caret liy�

the

The privilege of assising

liy� kwiy, kom�ndrenday koz�, in vendishiyown�b�s d�k;)nt�r, say prel�m �preriy�nt, vend�tor�m non obl�g�nt/. 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. Ea qure dari impossibilia sunt, vel qure in rerum natura non sunt, pro non adjectis habentur liy� kwiy deray impos�biliy� s�nt, vel kwiy in rir�m n�tyur� non s;)nt prow non �jekt�s h�bent�r/. 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]. Ea qure in curia nostra rite acta sunt debitre execu tioni demandari debent liy� kwiy in kyuriy� n6str� raytiy rekt� s�nt deb�tiy eks�kyuwshiyownay d�mrenderay deb�ntl. Those things which are properly transacted in our court ought to be committed to a due execution.

Eadem mens prresumitur regis qure est juris et qure esse debet, prresertim in dubiis liyeyd�m menz pr�z(y)uwm�t�r riyj�s kwiy est jur�s et kwiy esiy deb�t, pr�z;)rt�m in d(y)uwbiy�s/. 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 mat ters.

Sax. Obsolete.

The metropolis;

tur, si palam appareant, venditorem non obligant

d�v;)rs�s rreshiy6wn�b�s k6r�m juwdis�b�s �kliyziy rest�s�s et seky�ler�b�s vent�leyt�r/. The same cause is argued upon different principles before ecclesiastical and secular judges. ratio,

An archbishop.

Sax.

Ea qure, commendandi causa, ill venditionibus dicun�

clesiasticis et secularibus ventilatur liyeyd�m k6z�

est

Ield�rb�rg/. Obsolete.

Ealhorda I eylhord�/.

Eadem causa diversis rationibus coram judicibus ec

Eadem

or ealding leldig/. In old Saxon law, an

Ea qure raro accidunt non temere in agendis negotiis computantur liy� kwiy rerow reks�d�nt non t�miriy in �jend�s n�gowshiy�s kompy�trent�r/. Those things which rarely happen are not to be taken into account in the transaction of business without sufficient reason.

A title of nobility, formerly the highest in Eng land, 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 sheriffs 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,

Earl.

est �ksipiyend� int�rpr�teysh(iy)ow kwiy vish(iy)ow krer�t/. That interpretation is to be received [or adopted] which is free from fault [or wrong]. The law will not intend a wrong. A gold coin of the United States of the value of ten dollars.

Eagle.

Ea intentione liy� intenshiy6wniy/.

With that intent. Held not to make a condition, but a confidence and trust.

507

EARL

508

but merely confers nobility and an hereditary seat in the house of lords. 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.

Earldom.

Earles-penny,

payment.

or earl's penny. See Earnest.

Money given in part

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.

Earlier maturity rule.

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.

Earl Marshal of England.

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.

Ear-mark.

Property is said to be ear-marked when it can be identified or distinguished from other property of the same nature. To set apart from others. Money has no ear-mark, but it is an ordinary term for a privy mark made by any one on a coin. Rule that through the process of com mingling 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.

Ear-mark rule.

To acquire by labor, service or performance. Hartford Electric Light Co. v. McLaughlin, 131 Conn. 1, 37 A.2d 361, 363. Earned means to merit or deserve, as for labor or service. To do that which entitles one to a reward, whether the reward is received or not; to ac quire by labor, service or performance. Cold Metal Process v. C.I.R., C.A., 247 F.2d 864, 872.

Earn.

Income from services (e.g. , salaries, wages, or fees); distinguished from passive, portfolio, and other unearned income. See I.R.C. § 911. In taxa tion, term generally is meant to include all income not representing return on capital. U.S. v. Van Dyke, C.A. Fed., 696 F.2d 957, 962. See also Earnings; Income.

Earned income.

A refundable tax credit on earned income up to a certain amount for low income workers who maintain a household for dependent chil dren. The amount of the credit is reduced dollar for dollar if earned income (or adjusted gross income) is greater than a specified amount.

Earned income credit.

In insurance, that portion of the premium properly allocable to policy period which has expired. An "earned premium" is difference between premium paid by insured and portion returnable to him by insurance company on cancellation of policy during

Earned premium.

its term. Price v. Guaranty Nat. 1m;, Co., Okl., 456 P.2d 108, 1 1 1 . Retained earnings. That species of surplus which has been generated from profits as con trasted with paid-in surplus. Term relates to net accu mulation of profits; it is a part of surplus that repre sents net earnings, gains or profits, after deduction of all losses, but has not been distributed a� gividends, or transferred to stated capital or capital surplus, or ap plied to other purposes permitted by law. Conine v. Leikam, Okl., 570 P.2d 1156, 1160.

Earned surplus.

Earner. One whose personal efforts produce income

(e.g. wage earner) or who owns property which produces it, or combination of both. Wells v. Commissioner of Internal Revenue, C.C.A.Minn., 63 F.2d 425, 430. 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. A token or pledge passing between the parties, by way of evidence, or ratification of the sale. See Earnest money.

Earnest.

Earnest money. A sum of money paid by a buyer at the

time of entering a contract to indicate the intention and ability of the buyer to carry out the contract. Normally such earnest money is applied against the purchase price. Often the contract provides for forfeiture of this sum if the buyer defaults. A deposit of part payment of purchase price on sale to be consummated in future. Bishop Ryan High School v. Lindberg, N.D., 370 N.W.2d 726, 728. Import of term in real estate contract is that when comparatively small sum is paid down, it is an assurance that party is in earnest and good faith and that if his being in earnest and good faith fails, it will be forfeited. Mortenson v. Financial Growth, Inc., 23 Utah 2d 54, 456 P.2d 181, 184. See also Binder; Down pay ment.

Term refers to capability of worker to sell his labor or services in any market reasonably accessible to him, taking into consideration his general physical functional impairment resulting from his acci dent, any previous disability, his occupation, age at time of injury, nature of injury and his wages prior to and after the injury. Sims v. Industrial Commission, 10 Ariz.App. 574, 460 P.2d 1003, 1006. Term 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 pos sessed, an individual is capable of earning.

Earning capacity.

"Earning capacity" of husband or wife for purpose of determining amount of support which he or she may be required to pay spouse is not that amount which an individual could theoretically earn but is amount which individual could realistically earn under circumstances, including health, age, mental and physical condition and training. Com. ex reI. Malizia v. Malizia, 229 Pa.Super. 108, 324 A.2d 386, 388. Fitness, readiness and willingness to work, considered in connection with opportunity to work. Earning power.

See Earning capacity.

EASEMENT

509 Income. That which is earned; i.e., money earned from performance of labor, services, sale of goods, etc. Revenue earned by an individual or busi ness. Earnings generally include but are not limited to: salaries and wages, interest and dividends, and income from self-employment. Term is broader in meaning than "wages." See also Commissions; Compensation;

Earnings.

Dividend; Gross earnings; Income;

Premium; Real earn

ings; Retained earnings; Salary; Wages.

Gross earnings. Total income from all sources without considering deductions, personal exemptions, or other reductions of income in order to arrive at taxable in come. See also Gross income. Net earnings. Net earnings (income) is the excess of gross income over expenses incurred in connection with the production of such income. For tax purposes, net earnings is the number used to determine taxable in come. For accounting purposes, net earnings is general ly determined after deduction of income taxes. See also Net income.

Surplus earnings. See Surplus. Earnings and profits.

A tax concept peculiar to corpo rate taxpayers which measures economic capacity to make a distribution to shareholders that is not a return of capital. Such a distribution will result in dividend income to the shareholders to the extent of the corpora tion's current and accumulated earnings and profits. See also Accumulated earnings tax; Accumulated taxable income.

Earnings per share. One common measure of the value

of common stock. The figure is computed by dividing the net earnings for the year (after interest and prior dividends) by the number of shares of common stock outstanding. Businesses' statement of profit and loss; commonly issued quarterly by publically-held com panies.

Earnings report.

Soil of all kinds, including gravel, clay, loam, and the like, in distinction from the firm rock.

Earth.

In the law of evidence, one who attests or can attest anything as heard by himself. See also Voice

Ear-witness.

print.

Comfort, consolation, contentment, enjoyment, happiness, pleasure, satisfaction.

Ease.

A right of use over the property of another. Traditionally the permitted kinds of uses were limited, the most important being rights of way and rights concerning flowing waters. The easement was normally for the benefit of adjoining lands, no matter who the owner was (an easement appurtenant), rather than for the benefit of a specific individual (easement in gross). The land having the right of use as an appurtenance is known as the dominant tenement and the land which is subject to the easement is known as the servient tene ment.

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. An interest which one person has in the land of another. A primary characteristic of an easement is that its burden falls upon the possessor of the land from which it issued and that characteristic is expressed in the statement that the land constitutes a servient tene ment and the easement a dominant tenement. Potter v. Northern Natural Gas Co., 201 Kan. 528, 441 P.2d 802, 805. An interest in land in and over which it is to be enjoyed, and is distinguishable from a "license" which merely confers personal privilege to do some act on the land. Logan v. McGee, Miss., 320 So.2d 792, 793.

See also Affirmative easement; Non-continuous ease ment; Prescriptive easement.

Access easement. See Access. 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. Apparent easement. One the existence of which appears from the construction or condition of one of the tene ments, so as to be capable of being seen or known on inspection. Appendent easement. See Appurtenant easement, below. Appurtenant easement. An incorporeal right which is attached to a superior right and inheres in land to which it is attached and is in the nature of a covenant running with the land. Fort Dodge, D. M. & S. Ry. v. American Community Stores Corp., 256 Iowa 1344, 131 N.W.2d 515, 521. There must be a dominant estate and servient estate. An easement interest which attaches to the land and passes with it. First Nat. Bank of Amaril lo v. Amarillo Nat. Bank, Tex.Civ.App., 531 S.W.2d 905, 907. An "incorporeal right" which is attached to and belongs with some greater and superior right or some thing 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. Discontinuing easement. Discontinuous, non-continu ous, 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. Easement by estoppel. Easement which is created when landlord voluntarily imposes apparent servitude on his property and another person, acting reasonably, believes that servitude is permanent and in reliance upon that belief does something that he would not have done otherwise or refrains from doing something that he would have done otherwise. U. S. v. Thompson, D.C. Ark., 272 F.Supp. 774, 784. Easement by implication. Easement created by law and grounded in court's decision in reference to particular transaction in land where owner of two parcels had so used one parcel to the benefit of other parcel that on selling the benefited parcel purchaser could reasonably have expected, without further inquiries, that these ben-

EASEMENT

510

efits were included in sale. Boyd v. McDonald, 81 Nev. 642, 408 P.2d 717, 721.

the transaction. Wagner v. Fairlamb, 151 Colo. 481, 379 P.2d 165, 167.

Easement by prescription. A mode of acquiring an ease ment in property by immemorial or long-continued en joyment, and refers to personal usage restricted to claimant and his ancestors or grantors. The uninter rupted use of the land must generally be for the same statutory period of time as for adverse possession.

Intermittent easement. One which is usable or used only at times, and not continuously.

Easement in gross. An easement in gross is not appurte nant to any estate in land or does not belong to any person by virtue of ownership of estate in other land but is mere personal interest in or right to use land of another; it is purely personal and usually ends with death of grantee. Shingleton v. State, 260 N.C. 451, 133 S.E.2d 183, 185. Easement of access. Right of ingress and egress to and from the premises of a lot owner to a street appurtenant to the land of the lot owner. Easement of convenience. One which increases the facil ity, comfort, or convenience of the enjoyment of the dominant estate, or of 80me right connected with it. Easement of natural support. Easement which creates right of lateral support to land in its natural condition entitling the holder thereof to have his land held in place from the sides by neighboring land. Easement of necessity. One in which the easement is indispensable to the enjoyment of the dominant estate. Such arises by operation of law when land conveyed is completely shut off from access to any road by land retained by grantor or by land of grantor and that of a stranger. Tarr v. Watkins, 180 Cal.App.2d 362, 4 Cal. Rptr. 293, 296. 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 fre quently applied to building restrictions in a deed. Exclusive easement. Grant of "exclusive easement" con veys unfettered rights to owner of easement to use that easement for purposes specified in grant to exclusion of all others. Latham v. Garner, 105 Idaho 854, 673 P.2d 1048, 1050. Flowage easement. Common law right of lower land to allow water from higher land to flow across it. Implied easement. One which the law imposes by infer ring the parties to a transaction intended that result, although they did not express it. Schwob v. Green, Iowa, 215 N.W.2d 240, 242. An easement resting upon the principle that, where the owner of two or more adjacent lots sells a part thereof, he grants by implica tion to the grantee all those apparent and visible ease ments 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. One not expressed by parties in writing but arises out of existence of certain facts implied from

Light and air easement. An easement obtained from an adjoining land owner to protect against the obstruction of light and air which would result if a building or structure was constructed on the grantor's property. Negative easement. Those where the owner of the ser vient estate is prohibited from doing something other wise 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). As to Reciprocal negative easement, see that title below. Private or public easements. A private easement is one in which the enjoyment 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 naviga tion on a stream. 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. " Reciprocal negative easement. I f 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." Reserved easement. An easement created by the grantor of property, benefitting the retained property and bur dening the granted property. 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. In the absence of other words qualifying its mean ing, the word "east" describing boundaries means due east. Livingston Oil & Gas Co. v. Shasta Oil Co., Tex. Civ.App., 1 14 S.W.2d 378, 381. The general direction of sunrise. Point directly opposite to west. See also East

East.

erly.

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 celebrat ed since the time of the apostles, and is one of the most important festivals in the Christian calendar, being that

Easter.

511

ECCLESIA

which regulates and determines the times of all the other movable feasts. A coin struck by Richard II which is sup posed by some to have given rise to the name of "ster ling," as applied to English money. Easterly. This word, when used alone, will be construed Easterling.

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 mean. See also East.

or Easter-dues. In 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-offerings,

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 was abolished so far as con cerns the administration of justice, and replaced by sittings. See also Hilary, Michaelmas and Trinity terms;

Easter term.

comprehensible outside, without the consent of the per son or persons entitled to privacy therein; or (c) Install ing or using any device or equipment for the intercep tion of any telephone, telegraph or other wire communi cation without the consent of the person in possession or control of the facilities for such wire communication. Such activities are regulated by state and federal stat utes, and commonly require a court order. At common law, the offense of listening under walls or windows, or the eaves of a house, and thereupon to frame slanderous and mischievous tales. 4 Bl.Comm. 168. It was a misdemeanor at common law.

See also Invasion of property; Pen register; Wiretapping. Ebba. In old English law, ebb.

Ebba et fluctus; ebb and flow of tide; ebb and flood. 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. The coming in and going out of tide. An expression used formerly to denote the limits of admiral ty jurisdiction.

Ebb and flow.

/(h)ebdom;}deriy�s/. In ecclesiastical law, an officer in cathedral churches who supervised the regular performance of divine service, and prescribed the particular duties of each person in the choir.

Ebdomadarius

Session.

Eberemorth, eberemors, eberemurder.

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.

EBIT. Abbreviation for

East Greenwich.

Originally established for prose cuting the trade between England and India, which they acquired a right to carry on exclusively. The company's political affairs became of more importance than their commerce. In 1858, by 21 & 22 Vict., c. 106, the government of the territories of the company was trans ferred to the crown. The company was finally dissolved in 1874.

East India Company.

Eastinus. EAT.

An easterly coast or country.

Abbreviation for earnings after taxes.

Eat inde sine die /iy�t indiy sayniy day(iy)/.

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.

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 Drip rights; Stillicidium.

Eaves-drip.

Eavesdropping is knowingly and with out lawful authority: (a) Entering into a private place with intent to listen surreptitiously to private conversa tions or to observe the personal conduct of any other person or persons therein; or (b) Installing or using outside a private place any device for hearing, recording, amplifying, or broadcasting sounds originating in such place, which sounds would not ordinarily be audible or

Eavesdropping.

See Aberemur

der.

earnings before interest and tax es (also called operating earnings).

Ebriety

/ �bray�diy /.

Drunkenness;

alcoholic intoxi

cation. Ecce modo mirum, quod femina fert breve regis, non nominando virum, conjunctum robore legis /eksiy mowdow mayr�m, kwod fem�n� f�rt briyviy riyj�s, non nom�nrendow v�r�m, k�nj�1Jkt�m rowb�riy liyj�s/. Be hold, indeed, a wonder! that a woman has the king's writ without naming her husband, who by law is united to her.

Personal or individual peculiarities of mind and disposition which markecly distinguish the subject from the ordinary, normal, or average types of men, but do not amount to mental unsoundness or insanity.

Eccentricity.

Ecclesia /�kliyz(i)y�/.

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.

Ecclesia

ecclesire

decimas

solvere non debet /�k

liyz(i)y� �kliyz(h)(i)yiy des�m�s solv�riy non deb�t/. church ought not to pay tithes to a church.

Ecclesia est domus mansionalis omnipotentis dei

/�kliyz(i)y� est dowm�s mrensh�neyl�s omn� powtent�s diyay/. The church is the mansionhouse of the Omnipotent God. Ecclesia est infra retatem et in custodia domini regis, qui tenetur jura et hrereditates ejusdem manu ten-

ECCLESIA NON MORITUR

512

ere et defendere I �kliyz(i)y� est infr� �teyt�m et in k�stowdiy� dom�nay riyj�s kway t�niyt�r jur� et h�red�teytiyz iyj�sd�m mren(y)uw t�niriy et d�fend�riy I. The church is under age, and in the custody of the king, who is bound to uphold and defend its rights and inheri tances. Ecclesia fungitur vice minoris; meliorem condition em

suam

facere

potest,

deteriorem

nequaquam

I �kliyz(i)y� f�nj�t�r vliysiy m�nor�s; miyliyor�m k�ndishiyown�m s(y)uw�m fres�riy powt�st, d�tiriyor�m n�kweykw�m/. The church enjoys the privilege of a minor; it can make its own condition better, but not worse. magis favendum est quam personre I �k liyz(i)yiy meYJ�s f�vend�m est kwrem p�rsow niy I. The church is to be more favored than the parson (or an individual).

Ecclesire

Ecclesia non moritur I �kliyz(i)y� non mor�t�r I.

The

church does not die. Ecclesire sculptura I�kliyz(i)yiy sk�lptyur�/.

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 memo ry of some famous churches.

Ecclesiarch I �kliyziyark/.

The ruler of a church.

Ecclesia.stic I�kliyziyrest�kl .

A clergyman; a priest; a man consecrated to the service of the church; as, a bishop, a priest, a deacon.

Ecclesiastical I �kliyziyrest�k�lI.

Pertaining to anything belonging to or set apart for the church, as distinguished from "civil" or "secular," with regard to the world. In England, the clergy, un der 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 coun sel and instruction. The several orders of the clergy are: (1) Archbishops and bishops; (2) deans and chap ters; (3) archdeacons; (4) rural deans; (5) parsons (under whom are included appropriators) and vicars; (6) cu rates. 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. See Ecclesiastical courts.

Ecclesiastical authorities.

In England, a body cor porate, erected by St. 6 & 7 Wm. IV, c. 77, empowered to suggest measures conducive to the efficiency of the es tablished church, to be ratified by orders in council. As a body, Ecclesiastical Commissioners have been dis solved and their functions, rights, property, etc. vested in Church Commissioners.

Ecclesiastical commissioners.

Ecclesiastical corporation.

See Corporation.

In New England, formerly a church court or tribunal, having functions partly judi cial and partly advisory, appointed to determine ques tions relating to church discipline, orthodoxy, standing of ministers, controversies between ministers and their

Ecclesiastical council.

churches, differences and divisions in churches, and the like. Ecclesiastical courts (called, also, "Courts Christian").

A generic name for certain courts having cognizance mainly of spiritual matters. 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 (now practically obsolete), Consistory Court, Provincial Courts (i.e. Court of Arches of Canterbury and Chancery Court of York), Court of Faculties, and Court of Final Appeal (Judicial Committee of the Privy Council). Modern jurisdiction is limited to matters of ecclesiastical discipline and church property. This is a division into provinces, dioceses, archdeaconries, rural deaneries, and parishes.

Ecclesiastical division of England.

Jurisdiction over ecclesias tical cases and controversies; such as appertains to the ecclesiastical courts.

Ecclesiastical jurisdiction.

The body of jurisprudence adminis tered 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.

Ecclesiastical law.

matter. One that concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of need ful 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.

Ecclesiastical

This term, as used in the canon law, includes church buildings, church property, ceme teries, and property given to the church for the support of the poor or for any other pious use.

Ecclesiastical things.

Ecdicus lekd�bsl.

The attorney, proctor, or advocate of

a corporation. Echantillon leyshontiyown/.

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. " In French law, a municipal officer correspond ing with alderman or burgess, and having in some instances a civil jurisdiction in certain causes of trifling importance.

Echevin.

lekowleyliy�rlreliy�/. The constant and senseless repetition of particular words or phrases, rec ognized as a sign or symptom of insanity or of aphasia.

Echolalia

Echouement

stranding.

leyshuwmon/ .

In French marine law,

EDICTUM THEODORICI

513 In general, the study or science of the relation ships between organisms and their environments; study of the environment. See Ecosystems.

Ecology.

Any form of discrimination within the field of commerce such as a boycott of a particular product or price fixing. See Boycott; Price

Economic discrimination.

discrimination; Price-fixing.

Defense of "economic duress," or business compulsion, arises where one individual, acting upon another's fear of impending financial injury, un lawfully coerces the latter to perform an act in circum stances which prevent his exercise of free will. Mancino v. Friedman, 69 Ohio App.2d 30, 23 O.O.3d 27, 429 N.E.2d 1181, 1186.

Economic duress.

Useful or profitable life of property, which may be shorter than the physical life. See also

Economic life.

Economic obsolescence.

In a products' liability action, recovery of damages for "economic loss" includes recovery for costs of repair and replacement of defective property which is the subject of the transaction, as well as com mercial loss for inadequate value and consequent loss of profits or use. Salmon Rivers Sportsman Camps Inc. v. Cessna Aircraft Co., 97 Idaho 348, 544 P.2d 306, 310.

Economic loss.

Loss of desirability and useful life of property due to economic developments (e.g. dete rioration of neighborhood or zoning change) rather than deterioration (functional obsolescence). Term as used with respect to valuation of property for taxation is a loss of value brought about by conditions that environ a structure such as a declining location or down-grading of a neighborhood resulting in reduced business volume. Piazza v. Town Assessor of Town of Porter, 16 A.D.2d 863, 228 N.Y.S.2d 397, 398. See also Obsolescence.

Economic obsolescence.

Refusal to work because of dispute over wages, hours or working conditions or other condi tions of employment. An economic strike is one neither prohibited by law nor by collective bargaining agree ment nor caused by employer unfair labor practices, but is typically for purpose of enforcing employer compli ance with union collective bargaining demands, and economic strikers possess more limited reinstatement rights than unfair labor practice strikers. N. L. R. B. v. Transport Co. of Tex., c.A. Tex. , 438 F.2d 258, 262. See also Strike.

Economic strike.

Economic waste.

An overproduction or excessive drill

ing of oil or gas. Frugality; prudent expenditure of money or use of resources. 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. Economic structure of country.

Economy.

E contra /iy kontr;)I .

From the opposite; on the con

trary. E converso liy k;)nv�rsow/.

Conversely. On the other hand; on the contrary. Equivalent to e contra. Black's Law Dictionary 6th Ed.-12

The totality of cycles and processes which constitute the ecology system.

Ecosystems.

I eky;)men;)k;)l/iyky;)men;)k;)l/. universal; as an ecumenical council.

Ecumenical

General;

Edderbreche led;)rbriych/.

In Saxon law, the offense (now obsolete) of hedge-breaking. One located on the edge of an oil bearing structure. Carter Oil Co. v. Mitchell, C.C.A.Okl., 100 F.2d 945, 947.

Edge lease.

A formal decree, command, or proclamation. 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

Edict.

Decree; Edictum; Mandate. Edicts of Justinian liydikts �v j;)stin(i)y;)n/.

Thirteen constitutions or laws of this prince, found in most edi tions of the Corpus Juris Civilis, after the Novels. Be ing confined to matters of police in the provinces of the empire, they have long since been of little use.

Edictum I;)dikt;)m/.

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. 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. A general order published by the prretor, on entering upon his office, containing the system of rules by which he would administer justice during the year of his office.

Edictum annuum I ;)dikt;)m renyuw;)m/.

The annual edict or system of rules promulgated by a Roman prretor immediately upon assuming his office, setting forth the principles by which he would be guided in determining causes during his term of office.

Edictum perpetuum I ;)dikt;)m p;)rpetyuw;)m/.

The per petual edict. A compilation or system of law in fifty books, digested by Julian, from the prretor'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. provinciale I;)dikt;)m pr;)vinshiyeyliy/. An edict or system of rules for the administration of justice, similar to the edict of the prretor, put forth by the proconsuls and proprretors in the provinces of the Ro man Empire.

Edictum

Edictum Theodorici I ;)dikt;)m Oiy;)d;)rliysay I.

This is the first collection of law that was made after the downfall of the Roman power in Italy. It was promul gated by Theodoric, king of the Ostrogoths, at Rome in A.D. 500. It consists of 154 chapters, in which we

EDICTUM THEODORICI

514

recognize parts taken from the Code and Novellre of

individual for a new trade or business. Ronald F. Weisz

Theodosius, from the Codices Gregorianus and Hermo

mann v. Commissioner of Internal Revenue, 443 F.2d 29.

genianus, and the Senten tire 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. Edictum tralatitium /;}dikt;}m trcel;}tish(iy);}m/.

Where

a Roman prretor, 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." The total number of copies of a publication

Edition.

printed from a single typesetting or at one specified time.

May also refer to the form which a pUblication

takes such as a hardbound or paperback edition.

Also,

the means of identifying the various versions of a given publication; e.g. first, second, etc. edition.

One of the

several issues of a newspaper for a single day. Editor.

One who directs or supervises the policies, con

tent and contributions of a newspaper, magazine, book, work of reference, or the like.

The term is held to

include not only the person who writes, edits 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 /ed;}t;}s/.

Educational institution.

A school, seminary, college,

university, or other educational establishment, not nec essarily a chartered institution.

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 develop ment.

Commissioners of District of Columbia v. Shan

non & Luchs Const. Co., 57 App.D.C. 67, 17 F.2d 219, 220. Educational purposes.

Term as used in constitutional

and statutory provisions exempting property so used from taxation, includes systematic instruction in any and all branches of learning from which a substantial public benefit is derived, and is not limited to such school properties as would relieve some substantial edu cational burden from the state.

McKee v. Evans, Alas

ka, 490 P.2d 1226, 1230. E.E.O.C.

Equal Empioyment Opportunity Commission.

Effect,

To do; to produce; to make; to bring to pass;

to execute; enforce; accomplish. Effect,

That which is produced by an agent or cause;

result; outcome; consequence.

State by Clark v. Wol

koff, 250 Minn. 504, 85 N.W.2d 401, 410.

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

In old English law, put forth or promul

used, the forms employed, or other materials for con

gated, when speaking of the passage of a statute; and

struing it.

brought forth, or born, when speaking of the birth of a

an act.

child.

into operation," etc., are used interchangeably.

Edmunds Act.

An act of Congress of March 22, 1882,

punishing polygamy. Educate.

To prepare and fit oneself for

any calling or business, or for activity and usefulness in life.

With success; as, to prosecute an action

Effecting loan.

To bring about a loan.

fulfill, produce or make a loan.

To accomplish,

It means the result or

consequence of bringing into operation a loan;

while

"renewal" is not a loan, but an extension of the time of

Education.

Comprehends not merely the instruction

received at school or college, but the whole course of training;

moral, religious, vocational, intellectual, and

physical.

Education may be particularly directed to

either the mental, moral, or physical powers and facul ties, but in its broadest and best sense it relates to them all.

With effect. with effect.

To give proper moral, as well as intellectual

and physical, instruction.

The operation of a law, of an agreement, or

The phrases "take effect," "be in force," "go

Acquisition of all knowledge tending to train and

develop the individual.

See also

Alternative pleading; Alternative relief; Equitable election.

General election.

One for a definite purpose, regularly

reoccurring at fixed intervals without any requirements other than the lapse of time.

Bolin v. Superior Court In

and For Maricopa County, 85 Ariz. 131, 333 P.2d 295, 298.

See also

Election by spouse; Equitable election. Election conducted at a time other

than the presidential election year.

Popular election. Election by people as a whole, rather than by a select group.

Election of remedies. The liberty of choosing (or the act

he has chosen one of them.

in lieu of some estate which he is entitled to, but which is taken from him by the terms of the will.

Offyear election.

The selection of a particular de

defending a criminal charge.

forms of action.

that a legatee or devisee under a will is put to the choice of accepting the beneficial interest offered by the donor

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

Presidential election. See U.S.Const. Amends. XII, XX, XXII-XXVI.

Primary election.

An election by the voters of a ward,

precinct, or other small district, belonging to a particu lar 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.

Also, an election to select candidates for office

by a political organization, the voters being restricted to the members or supporters of such organization.

election, preliminary in nature, the purpose being to narrow in number the candidates that will appear on the final, official ballot.

Recall election. Election where voters have opportunity to remove public official from elected office.

Regular election. One recurring at stated times fixed by law.

A general, usual, or stated election.

When applied

to elections, the terms "regular" and "general" are used interchangeably and synonymously.

The word "regu

lar" is used in reference to a general election occurring

distinguished from an election of officers for a particular

throughout the state.

locality only.

Special election. An election for a particular emergency

Also, one held for the selection of an

See also

Louisiana) is practically synonymous with the term "em

any reason, with intention to not return, with design to reside elsewhere.

one section to another of the same country. Deportation; Immigration.

ing.

Emergent year. The epoch or date whence any people Emigrant I em:lgr;mtl.

ship 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 sometimes used in reference to the removal from

It is to be distin

ty under the laws of eminent domain.

Compensation

must be based on damages or benefits to the remaining property, as well as the part taken.

See Condemnation.

Emissary lem:lseriy/. A person sent upon a mission as

guished from "expatriation" which means the abandon

the agent of another; also a secret agent sent to ascer

ment of one's country and renunciation of one's citizen-

tain the sentiments and designs of others, and to propa-

EMISSARY

524

gate opinions favorable to his employer. dor;

See Ambassa

Emission. The discharge, ejection or throwing out of; e.g. a pollutant from a factory or any secretion or other matter from the body.

To give forth with authority; to give out or discharge; to put into circulation. See Bill (Bill of credit ).

Emolument /am61yam:mtl.

The profit arising from of

compensation for services, or which is annexed to the possession of office as salary, fees, and perquisites.

Any

perquisite, advantage, profit, or gain arising from the McLean v. United States, 226

U.S. 374, 38 S.Ct. 122, 124, 57 L.Ed. 260; State ex reI. Todd v. Reeves, 196 Wash. 145, 82 P.2d 173, 175.

Emotion. A strong feeling of hate, love, sorrow and the like arising within a person and not as a result, neces sarily, of conscious activity of the mind.

indicate to the jury that they have especial importance

produced by a violent excitement of the emotions or passions, though the reasoning faculties may remain A passion, effecting for a space of time

complete derangement of accused's intellect, or an im pulse, which his mind is not able to resist, to do the act. Fannon v. Commonwealth, 295 Ky. 817, 175 S.W.2d 531,

See Insanity; Irresistible impulse.

Emphyteusis / emfatyuwsas/.

In the Roman and civil

law, a contract by which a landed estate was leased to a 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.

Bl.Comm. 232. The right granted by such a contract (jus emphyteuti

cum, or emphyteuticarium).

The real right by which a

person is entitled to enjoy another's estate as if it were done without deteriorating it.

Emphyteuta /emfatyuwta/. In the civil law, the person to whom an emphyteusis is granted; the lessee or tenant under a contract of emphyteusis. Emphyteuticus /emfatyuwtakas/.

the

civil

law,

founded on, growing out of, or having the character of, an emphyteusis;

held under an emphyteusis.

3 Bl.

Comm. 232.

Empalement /ampeylmantl. In ancient law, a mode of inflicting punishment, by thrusting a sharp pole up the fundament.

Empire.

The dominion or jurisdiction of an emperor;

the region over which the dominion of an emperor extends; imperial power; supreme dominion; sovereign command.

Empannel. See Impanel.

Empiric /ampirak/. A practitioner in medicine or sur

Emparlance. See Imparlance.

gery, who proceeds on experience only, without science

Emparnours /amparnarz/. L. Fr. Undertakers of suits. Emperor. The title of the sovereign ruler of an empire. This designation was adopted by the rulers of the Ro man 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.

Robinson v. Ross, Mo., 47

S.W.2d 122, 125.

his own, and to dispose of its substance, as far as can be

Emotional insanity. The species of mental aberration

533.

ed from the evidence and mentioned in such a way as to

tenant, either in perpetuity or for a long term of years,

fice, employment, or labor; that which is received as a

unimpaired.

a verdict, but nevertheless some fact or facts are select

when that is not justified.

Emit. To put forth or send out; to issue. "No state shall emit bills of credit." Art. 1, § 10, U.S. Const.

possession of an office.

Emphasizing facts. A jury instruction is said to empha size facts which may contain sufficient facts to authorize

Diplomatic agent.

In western speech the

former sovereigns of Turkey and China were called emperors. The title "emperor" seems to denote a power and dignity superior to that of a "king."

It appears 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 king doms or other quasi sovereign states; as was the case

or legal qualification; a quack.

Empirical. That which is based on experience, experi ment, or observation.

Emplazamiento /emplasimyentow/.

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;

accuse.

Emploi /omplwa!. 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.

Employ. To engage in one's service; to hire; to use as

with the German empire from 1871 to 1918. The proper

an agent or substitute in transacting business; to com

meaning of emperor is the chief of a confederation of

mission and intrust with the performance of certain acts

In general, an

or functions or with the management of one's affairs;

emperor is the holder of a sovereignty extending over conquered or confederated peoples, a king is ruler of a

and, when used in respect to a servant or hired laborer,

single people.

and a contract for a compensation. Tennessee Coal Iron

states of which kings are members.

the term is equivalent to hiring, which implies a request

EMPRESARIOS

525 & R. Co. v. Muscoda Local No. 123, Ala., 321 U.S. S.Ct. 698, 703, 705, 88 L.Ed. 949.

590, 64

To make use of, to

keep at work, to entrust with some duty.

ployer's Liability Act; Workers' Compensation Acts) de

See also

fining or limiting the occasions and the extent to which

Performing work under an employer-em

(compensation) for injuries to their employees occurring

public and private employers shall be liable in damages

Employment.

Employed.

Employers' liability acts. Statutes (e.g. , Federal Em

ployee relationship.

Term 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.

Employee. A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed. Riverbend Country Club v. Patterson, Tex.Civ.App., 399 S.W.2d 382, 383.

One who

works for an employer; a person working for salary or wages. Generally, when person for whom services are per formed has right to control and direct individual who performs services not only as to result to be accom plished by work but also as to details and means by which result is accomplished, individual subject to di rection is an "employee". "Servant" is synonymous with "employee".

Tennes

see Valley Appliances v. Rowden, 24 Tenn.App. 487, 146 S.W.2d 845, 848.

However, "employee" must be distin

guished from "independent contractor," "officer," "vice principal," "agent," etc.

in the course of their employment, and particularly 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 and also the defenses of contributory negligence and assumption of risk.