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Pronunciation Guide a for all the vowel sounds in m as in motion, malice burden, circus, function, wonder n as in notice, negate a as in fact, plat ng as in long, ring ah as in balm, father 0 as in contract, loss am as in bar, start oh as in oath, impose air as in flare, lair 00 as in rule, school aw as in tall, law oor as in lure, tour ay as in page, same or as in board, court b as in balk, rob ow as in allow, oust ch as in chief, breach oy as in join, ploy d as in debt, docket p as in perjury, prize e as in leg, tenant r as in revolt, terror ee as in plea, legal s as in sanction, pace eer as in mere, tier sh as in sheriff, flash er as in merit, stationery t as in term, toxic f as in father, off th as in theory, theft g as in go, fog th as in there, whether h as in hearsay, hold uu as in took, pull hw as in whereas, while uur as in insurance, plural i as in risk, intent v as in vague, waiver I as in crime, idle w as in warranty, willful J as in jury, judge y as in year, yield k as in kidnap, flak z as in zoning, maze 1 as in lawyer, trial zh as in measure, vision Guide to the Dictionary 1. Alphabetization All headwords, including abbreviations, are alphabetized letter by letter, not word by word, Spaces, apostrophes, hyphens, virgules, and the like are ignored, An ampersand (&) is treated as ifit were the word and, For example: Pan-American Convention P&L Panduit test per annum PIE ratio per capita percentage lease per diem peremptory Numerals included in a headword precede the letter "a" and are arranged in ascending numerical order: Rule IOb-5 Rule 11 rule absolute rulemaking rule ofn ruleof78 A numeral at the beginning ofa headword is alphabetized as if the numeral were spelled out: Eighth Amendment eight-hour law 8-K ejection Commas break the letter-by-letter alphabetization if they are backward-looking (e,g" attorney, power oj), but not if they are forward-looking (e,g" right, title, and interest), 2. Pronunciations Boldface syllables receive primary stress: oligopoly (ol-<l-gop-<l-lee), n, Ifa word has more than one acceptable pronunciation, the preferred pronunciation appears first and the variant form after or: talesman (taylz-m~n ortay-leez-m~n), A pronunciation ofdubious standing is preceded by also: condition precedent (pr<l-seed-,:mt also pres-a-d;mt), For variably pronounced syllables, often only the changed syllables are included, ejusdem generis (ee-j;Js-dam jen-a-ris also ee-joos- or ee-yoos-), page-xxv GUIDE TO THE DICTIONARY Brackets in pronunciations indicate an optional sound: fiduciary (fi-d[y]oo-shee-er-ee), adj. For handy reference, the pronunciation gUide is located inside the front cover. 3. Etymologies The origins of most foreign words and phrases are given in brackets. By far the most frequent etymologies are "Latin" (Le., classical Latin used during the Roman Empire) and "Law Latin" (i.e., the Anglicized Latin formerly used in legal docu ments and proceedings). Essentially, the Law Latin tag corresponds to what some dictionaries call Late Latin and others call Medieval Latin. Other languages of origin are listed as well, including French, Law French (Le., medieval common law French), Old English, Greek, German, and Dutch. 4. Dates The parenthetical dates preceding many ofthe definitions show the earliest known use ofthe word or phrase in English. For some words, the date is merely a century (e.g., 14c), but for most ofthe recently emerging vocabulary a precise year is given. The editors hope to extend this feature to most or even all the entries in future editions. Interested researchers should know that we welcome certifiable antedat ings. 5. Tags Two types oftags appear. First, there are usage tags: Rist. == historical; no longer current in law Archaic = old-fashioned and declining in use Rare = very infrequent in modern usage Slang = very informal Second, there are many subject -matter tags thatidentify the field oflaw that a par ticular term or sense belongs to (e.g., Antitrust, Commercial law, Insurance, and Wills & estates). Two ofthese tags deserve special mention. Roman law indicates a term that can be traced back to the legal system ofthe ancient Romans. Civil law indicates a term that is used in modern civil-law systems, including much of the law in Louisiana. 6. Angle Brackets Contextual illustrations ofa headword are given in angle brackets: avail, n. 1. Use or advantage <oflittle or no avail>. 2. (pl.) Profits or proceeds, esp. from a sale of property <the avails of the trust fund>. page-xxvi GUIDE TO THE DICTIONARY 7. Bullets Bullets are used to separate definitional information (before the bullet) from information that is not purely definitional (after the bullet), such as encyclopedic information or usage notes. 8. Cognate Forms This dictionary lists corresponding parts ofspeech. For example, under the defini tion of consultation, the corresponding verb (consult) and adjectives (consulting, consultative) are listed. Ifa cognate form applies to only one sense of a headword, that form is denoted as follows: enjoin, vb. 1. To legally prohibit or restrain by injunction <the company was enjoined from selling its stock>. [Cases: Injunction 1.] 2. To prescribe, mandate, or strongly encourage <the graduating class was enjoined to uphold the highest professional standards>. -enjoinment (for sense 1), n. enjoinder (for sense 2), n. 9. Cross-references a. See The signal See is used in three ways. (1) To indicate that the definition is at another location in the dictionary: call loan. See LOAN. perpetuities, rule against. See RULE AGAINST PERPETUITIES. (2) To refer to closely related terms: nationalization, n. 1. The act of bringing an industry under govern mental control or ownership. [Cases: International Law C=' 10.16.] 2. The act of giving a person the status of a citizen. See NATURAL IZATION. [Cases: Aliens (;::>60-70.] cognovit (kog-noh-vit). [Latin "the person has conceded (a debt or an action)"] An acknowledgment of debt or liability in the form of a confessed judgment. See confession ofjudgment under JUDGMENT. (3) To refer to a synonymous subentry: binding instruction. See mandatory instruction under JURY INSTRUC TION. b. Cf. Cf is used to refer to related but contrastable terms: Gallagher agreement. A contract that gives one codefendant the right to settle with the plaintiff for a fixed sum at any time during trial and that guarantees payment of the sum regardless of the trial's outcome. City ofTucson v. Gallagher, 493 P.2d 1197 (Ariz. 1972). Cf. MARY CARTER AGREEMENT. page-xxvii GUIDE TO THE DICTIONARY false imprisonment. A restraint of a person in a bounded area without justification or consent. False imprisonment is a common-law misdemeanor and a tort. It applies to private as well as governmental detention. Cf. false arrest under ARREST. [Cases: False Imprison ment<>2.] c. Also termed The phrase also termed at the end of an entry signals a synonymous word or phrase. Variations include also spelled, also written, and often shortened to. d. Terms with multiple senses Ifthe cross-referenced term has multiple senses, the particular sense referred to is indicated in parentheses: light work. See WORK (1). rule day. See return day (3) under DAY. 10. Citations To help dictionary users find the most current caselaw, thousands of entries contain bracketed pointers to West's key-number system (preceded by Cases), identifying the topics and sections relevant to the definition: ready, willing, and able. (Of a prospective buyer) legally and financially capable of consummating a purchase. [Cases: Brokers PS4; Specific Performance <>87.] There may be a set ofdifferent citations for different senses ofa term: abatement (d-bayt-m;mt), n. The suspension or defeat of a pending action for a reason unrelated to the merits of the claim <the defendant sought abatement ofthe suit because of misnomer>. See plea in abate ment under PLEA. [Cases: Abatement and Revival 11. Quotations The editors have selected quotations on the basis of aptness, insight, and clarity. Most quotations are included because they provide information or nuances that would not otherwise be available within the strict confines ofa traditional defini tion. Quotations are set off in smaller, sans serif type: discovery abuse. 1. The misuse of the discovery process, esp. by making overbroad requests for information that is unnecessary or beyond the scope ofpermissible disclosure or by conducting discovery for an improper purpose. "The term 'discovery abuse' has been used as if it were a single concept, but it includes several different things. Thus, it is useful to subdivide 'abuse' into 'misuse' and 'overuse: What is referred to as 'misuse' would include not only direct violation of the rules, as by failing to respond to a discovery request within the stated time limit, but also more subtle attempts to harass or obstruct an opponent, as by giving obviously inadequate answers or by requesting information that clearly is outside the scope of discovery. By 'overuse' is meant asking for more discovery than is neces sary or appropriate to the particular case. 'Overuse,' in turn, can be subdivided into page-xxviii GUIDE TO THE DICTIONARY problems of 'depth' and of 'breadth,' with 'depth' referring to discovery that may be relevant but is simply excessive and 'breadth' referring to discovery requests that go into matters too far removed from the case." Charles Alan Wright, The Law ofFederal Courts 81, at 580 (5th ed, 1994), Older quotations show what scholars have said about legal terminology at par ticular points in history. Some ofthe older quotations may not fully reflect current law. 12. Subentries Many terms in this dictionary are collected by topic. For example. the different types of contracts, such as bilateral contract and gratuitous contract, are defined under the main term contract. (Cross-references in Band G will redirect the reader who looks up bilateral contract or gratuitous contract to contract.) Ifa term has more than one sense, then the corresponding subentries are placed under the appropriate sense ofthat term. 13. Typefaces The typefaces used in this dictionary are mostly self-explanatory. For instance, all headwords and cognate forms are in boldface type, and all subentries are italicized. As for headwords offoreign origin, those that are fully naturalized are in boldface Roman type, while those that are not fully naturalized are in boldface italics. Gen erally, small caps are used with "See" and "Cf." cross-references to main entries. There are, however, three other uses of small caps deserving special mention. a. Small caps refer to a synonymous headword. In the following example, the small caps suggest that you review the definition at contiguous for more infor mation: adjoining. Touching; sharing a common boundary; contiguous. adjoin, vb. b. Small caps also refer to the predominant form when it may be phrased or spelled in more than one way. For example, the following uses of small caps direct you to the entries at perjury and payor: false swearing. See PER fURY. payer. See PAYOR. c. Small caps also refer to the spelled-out form of abbreviations (the term is defined at the spelled-out headword, not the abbreviated form). For example: FDIC. abbr. FEDERAL DEPOSIT INSURANCE CORPORATION. Federal Deposit Insurance Corporation. A federal corporation that protects bank and thrift deposits by insuring accounts up to $100,000, examining banks that are not members of the Federal Reserve System, and liquidating failed institutions. Abbr. FDIC. page-xxix GUIDE TO THE DICTIONARY 14. West Key-Number System Many entries contain citations to West's key-number classification system as a legal-research tool. [Cases: Federal Civil Procedure (;::) 1261, 1278; Pretrial Procedure (:=>28.] 15. Abbreviations For a list ofabbreviations used within entries see p. xxxi. For a list ofabbreviations used within legal texts generally, see Appendix A. 16. Latin Maxims The first six editions of Black's Law Dictionary interspersed hundreds oflegal maxims (full Latin or Law French sentences) within the main body ofthe diction ary, somewhat cluttering the main text. For greater convenience, a much fuller set ofmaxims was collected into an appendix in the seventh edition. Newly corrected and amplified, that collection is now found in Appendix B. page-xxx List ofAbbreviations abbr. abbreviated as; abbreviation for adj. adjective adv. = adverb BrE = British English ca. circa cap. = capitalized cf. (confer) compare with ch. chapter conj. conjunction ed. edition; editor e.g. (exempli gratia) for example esp. especially et seq. (et sequentes) and those (pages or sections) that follow fro = from; derived from id. = (idem) in the same work i.e. (id est) that is I.e. lowercase n. noun; note no

work i.e. (id est) that is I.e. lowercase n. noun; note no. == number , paragraph pI. plural pp. pages p.pI. past participle prep. == preposition pt. =: part repr. == reprinted rev. revised by; revision section sing. Singular specif. = specifically usu. == usually vb. verb page-xxxi A a. 1. (usu. cap. & often ital.) A hypothetical person <A deeds Blackacre to B>. 2. [Latin] From; by; in; on; of; at. 3. [Law Latin] With. 4. [Law French] Of; at; to; for; in; with. 5. Securities. A letter used in a newspaper stock transaction table to indicate that cash was paid during the year in addition to regular dividends. 6. Securities. A letter used in a newspaper mutual-fund transaction table to indicate a yield that may include capital gains and losses as well as current interest. 7. (cap.) Securi ties. A letter used in a newspaper corporate earnings report to identify the American Stock Exchange as the primary market of a firm's common stock. 8. (cap.) Securities. An above-average grade given to a debt obli gation by a rating agency . The grades, as ranked by Standard & Poor's, range from AAA (highest) down to CCc. The equivalent standards from Moody's are Aaa, Aa, A, Baa, and so on down to C. 9. Marine insur ance. A rating assigned in Lloyd's Register ofShipping to ships considered to be in first-class condition. 10. abbr. ADVERSUS. 11. (cap.) Hist. A scarlet letter worn as punishment by a person convicted of adultery. 12. Roman law. An abbreviation for absolvo written on wooden tablets by criminal-court judges to indicate a vote for acqUittal. 13. Roman law. An abbreviation for antiquo ("for the old law") written on wooden tablets by the participants in a popular assembly to indicate a vote against a proposed bill. 14. (cap.) abbr. ATLANTIC REPORTER. A.2d. abbr. Atlantic Reporter Second Series. See ATLANTIC REPORTER. AAA. abbr.!. AMERICAN ARBITRATION ASSOCIATION. 2. AMERICAN ACCOUNTING ASSOCIATION. 3. AMERICAN ACADEMY OF ACTUARIES. 4. AGRICULTURAL ADJUST MENT ACT. 5. See accumulated-adjustments account under ACCOUNT. AAC. abbr. AN::-IO ANTE CHRISTUM. AACN. abbr. ANNO ANTE CHRISTUM NATUM. AALL. abbr. American Association of Law Libraries, founded in 1906 to promote law libraries and scholar ship in the field oflaw-library science. AALS. abbr. ASSOCIATION OF AMERICAN LAW SCHOOLS. AARCC. abbr. ALTERNATIVE AGRICULTURAL RESEARCH AND COMMERCIALIZATION CORPORATIO::-l. AAU. abbr. Amendment to allege use. See TRADEMARK APPLICATION AMENDMENT. a aver et tener (ayay-var [or ah ah-var] et ten-ar). [Law French] To have and to hold. See HABENDUM CLAUSE. AB. abbr. See able-bodied seaman under SEAMAN. ab, prep. [Latin] From; by; of. ABA. abbr. 1. AMERICAN BAR ASSOCIATION. 2. AMERICAN BANKERS ASSOCIATION. ahacinate (a-has-a-nayt), vb. To blind (a person) by placing a red-hot iron or metal plate in front of the eyes. abaction (ab-ak-sh:m). See ABIGEATUS. ab actis (ab ak-tis), n. [Latin "in relation to proceedings"] Roman law. An officer responsible for public records (acta), registers, journals, or minutes; a court clerk; a notary. abactor (ab-ak-tar or -tor). See ABIGEUS. ab agendo (ab a-jen-doh), adj. [Latin] Unable to act; inca pacitated for business or transactions of any kind. abalienation (ab-ayl-ya-nay-sh,m), n. [fro Latin abalien are "to alienate"] Civil law. The transfer ofan interest in or title to property; ALIENATION (2). In Roman law, the term was abalienatio ("a perfect conveyance from one Roman citizen to another"), which was anglicized to abalienation. -abalienate, vb. abamita (a-bam-a-ta). [Latin] Civil law. A great-great great aunt. abandoned application. Patents & Trademarks. An application removed from the U.S. Patent and Trade mark Office docket ofpending applications because the applicant (or the applicant's attorney or agent of record) filed an express notice ofabandonment, failed to take appropriate or timely action at some stage in the prosecution of a nonprovisional application, or failed to pay the issue fee. Abandonment ofa patent or trademark application does not automatically result in abandonment ofthe invention or the mark because an abandoned application may be revived by petition. Cf. abandoned invention under INVENTION; abandoned mark under TRADEMARK. [Cases: Patents 107.] abandoned experiment. Patents. An unsuccessful attempt to reduce an invention to practice . Unless it is publicly known, an abandoned experiment does not qualify as prior art under 102 ofthe Patent Act, so it does not bar future patents. abandoned invention. See INVENTION. abandoned mark. See abandoned trademark under TRADEMARK. abandoned property. See PROPERTY. abandoned, suppressed, or concealed, adj. Patents. Intentionally or accidentally hidden from public notice, not reduced to practice, or not patented. Another person's earlier invention will not be considered prior art if the first inventor abandoned the field to others or is held to have lost the right to patent by suppress ing or concealing the invention. But ifthe suppression 2 abandoned trademark or concealment occurred after the art was known to the public, then it still qualifies as prior art. See MPEP 2138.03. [Cases: Patents (:=>82.] abandoned trademark. See TRADEMARK. abandonee ( ..-ban-d..-nee). (1848) One to whom property rights are relinquished; one to whom something is formally or legally abandoned. abandonment, n. (1809) I. The relinquishing of a right or interest with the intention of never reclaiming it. In the context of contracts for the sale ofland, courts sometimes use the term abandonment as ifit were syn onymous with rescission, but the two should be dis tinguished. An abandonment is merely one party's acceptance ofthe situation that a nonperforming party has caused. But a rescission due to a material breach is a termination or discharge of the contract for all purposes. 2. Property. The relinquishing of or departing from a homestead, etc., with the present, definite, and permanent intention of never returning or regaining possession. 3. Family law. The act ofleaving a spouse or child willfully and without an intent to return. -Child abandonment is grounds for termination of parental rights. Spousal abandonment is grounds for divorce. Cf. DESERTION. [Cases: Divorce (:=>37; Infants "The lines of distinction between abandonment and the many forms of child neglect are often not very dear so that failure to support or to care for a child may sometimes be characterized as abandonment and sometimes as neglect." Homer H. Clark Jr., The Law of Domestic Relations in the United States 20.6, at 895 (1988). abandonment ofminor children. See NONSUPPORT. constructive abandonment. See constructive desertion under DESERTION. malicious abandonment. 1. lhe desertion ofa spouse without just cause. See criminal desertion under DESERTION. [Cases: Divorce(:=> 37.]2. See voluntary abandonment. voluntary abandonment. 1. As a ground for divorce, a final departure without the consent of the other spouse, without sufficient reason, and without the intention to return. [Cases: Divorce (:=>37.] 2. In the law of adoption, a natural parent's willful act or course ofconduct that implies a conscious disregard of or indifference to a child, as if no parental obliga tion existed. Also termed malicious abandonment. [Cases: Adoption (:=>7.4.] 4. Criminal law. RENUNCIATION (3). 5. Bankruptcy. A trustee's court-approved release of property that is bur densome or of inconsequential value to the estate, or the trustee's release of nonadministered property to the debtor when the case is closed. [Cases: Bankruptcy (:=> 3131-3137.]6. Contracts. RESCISSION (2).7. Insurance. An insured's relinqUishing ofdamaged or lost property to the insurer as a constructive total loss. Cf. SALVAGE (2). [Cases: Insurance (:=>2237.] 8. Trademarks. A mark owner's failure to maintain the mark's proper use in commerce or failure to maintain its distinctive char acter. -Abandonment is an affirmative defense to an action for trademark infringement. -Also termed nonuse. [Cases: Trademarks 1153, 1532.] 9. Hist. Copyright. An affirmative defense to a copyright infringement claim governed by pre-1989 law, based on the author's general publication of the work without a copyright notice. -Before March 1989, authors who did not affix a copyright notice to their published works risked losing legal protection for those works. Congress eliminated the copyright-notice requirement when it ratified the Berne Convention. [Cases: Copy rights and Intellectual Property (:=>50.1(4).] 10. Intel lectual property. The loss of an intellectual-property right, as by disuse, neglect offormalities, failure to pay a required fee, or (for a trade secret) failure to ensure concealment. -abandon, vb. abandonment by operation oflaw. See constructive abandonment. actual abandonment. 1. Patents. Intentional relin quishment of the right to patent protection, evi denced, for example, by more than mere inactivity or delay in filing the application. -Actual abandon ment may be express or implied, but every reasonable doubt about intent will be resolved in the inventor's favor. [Cases: Patents (:=>82.] 2. Trademarks. Inten tionalloss of trademark protection by discontinuing commercial use ofthe mark with the intention of not using it again. [Cases: Trademarks (:=>1155.] constructive abandonment. I. Patents. The closing ofa patent -application prosecution by the U.S. Patent and Trademark Office when an applicant fails to respond to an office action within the time allowed, usu. six months, or fails to pay an issue fee. -If the delay was unintentional or unavoidable, the application may be revived. [Cases: Patents (:=> 107. ] 2. Patents. Abandonment of an invention by operation of law regardless of the inventor's intention, such as when the inventor forfeits the right to patent by selling or offering to sell the invention or by describing it in a publication more than a year before seeking patent protection. 35 USCA 102. [Cases: Patents (:=>80.] 3. Trademarks. An owner's loss oftrademark protec tion, regardless ofwhether the mark is registered, by allowing the mark to lose its distinctiveness, such as by letting the name become a generiC term for that type ofgoods, or by otherwise failing to maintain the mark's distinctive character. -For example, licensing the use of the mark without retaining control over how it is used may result in constructive abandon ment. -Also termed abandonment by operation of law. [Cases: Trademarks (:=> 1164,11661. express abandonment. Patents. An applicant'S inten tional and clear termination ofa patent prosecution. An express abandonment must be made in a signed writing and received by the U.S. Patent and Trade mark Office in time for the Office to act before the patent issues. Once an application is expressly aban doned, it cannot be revived, and the applicant cannot preclude the public from freely availing itself of the invention'S benefits. Unless there is an express aban donment filed, abandonment of a patent application 3 does not result in abandonment of the invention. Also termed formal abandonment. [Cases: Patents formal abandonment. See express abandonment. implied abandonment. Patents. An inventor's failure to take steps to protect an invention, such as by failing to claim the invention when disclosed in a patent appli cation or by permitting an application to be aban doned, esp. by failing to file an answer to an office action within the time allowed. [Cases: Patents 107.] abandonment ofcontest. Patents. A party's withdrawal from an interference contest. The abandonment of contest must be in writing. The contest is dissolved as to the abandoning party. [Cases: Patents C::;> 106(5).] abandum (;l-ban-dam), n. [Law Latin] Hist. A thing that has been forfeited. -Also spelled abandun; abando num. ab ante (ab an-tee), adv. [Latin] Hist. Before; beforehand; in advance. Also termed ab antecedente. ab antiquo (ab an-tI-kwoh), adv. [Law Latin] Hist. From ancient times; ofold. Also termed ab anti

-tI-kwoh), adv. [Law Latin] Hist. From ancient times; ofold. Also termed ab antiqua. abarnare (ab-ahr-nair-ee), vb. [Law Latin] Hist. To detect or disclose a secret crime; to bring to judgment. abatable nuisance. See NUISANCE. abatamentum (a-bay-t;l-men-t;lm), n. [Law Latin] Hist. See ABATEMENT (5). ahatare (ab-;l-tair-ee), vb. [Law Latin] Hist. To abate. abatement (;l-bayt-m;lnt), n. (14c) 1. The act of elimi nat ing or nullifying <abatement of a nuisance> <abate ment of a writ>. [Cases: Nuisance IS, 77.] 2. The suspension or defeat of a pending action for a reason unrelated to the merits of the claim <the defendant sought abatement of the suit because of misnomer>. See plea in abatement under PLEA. [Cases: Abatement and Revival C=>5S.] "Although the term 'abatement' is sometimes used loosely as a substitute for 'stay of proceedings,' the two may be distinguished on several grounds. For example, when grounds for abatement of an action exist, the abatement of the action is a matter of right, but a stay is granted in the court's discretion. And in proper circumstances a court may stay a proceeding pending the outcome of another proceeding although a strict plea in abatement could not be sustained." 1 Am. Jur. 2d Abatement, Survival, and Revival 3 (1994). 3. The act oflessening or moderating; diminution in amount or degree <abatement of the debt>. 4. Wills & estates. The reduction of a legacy, general or specific, as a result ofthe estate's being insufficient to pay all debts and legacies <the abatement oflegacies resulted from the estate's insolvency>. Cf. ADEMPTION. lCases: Wills C::;>804-818.] 5. Archaic. The act oftortiously entering real estate after the owner dies and before the legal heir enters <abatement of freehold>. Also termed (in sense 5) abatamentum. -abate, vb. abatable, adj. ABC test abatement clause. (1890) A lease provision that releases the tenant from the rent obligation when an act ofGod or other specified reason precludes occupancy. abater C;l-bay-t;lr or -tor). 1. One who abates something. 2. A plea in abatement. See plea in abatement under PLEA. abator (;l-bay-t;lr or -tor). (16c) 1. A person who elimi nates a nuisance. See ABATEMENT (1). [Cases: Nuisance C::;>20, 74.] 2. Hist. A person who tortiously intrudes on an heir's freehold before the heir takes possession. See ABATEMENT (5). abatuda (ab-;l-t[y]oo-d;l), n. Law Latin abatudus "debased") Hist. A thing diminished, such as money reduced in value by dipping (moneta abatuda). abavia (;l-bay-vee-;l), n. [Latin] Civil law. A great-great grandmother. abavunculus (ab-;l-vang-kY;l-las), n. [Latin] Civil law. A great-great-great uncle. Also termed avunculus maximus. abavus (ab-a-vas), n. [Latin] Civil law. A great-great grandfather. abbacy (ah-;l-see). Eccles. law. An abbot's jurisdiction or term of tenure. abbess (ab-is). Eccles. law. A female superior or governess of a convent. Cf. ABBOT. abbey (ab-ee). Eccles. law. A monastery governed by an abbot, or a convent governed by an abbess. abbey land. (usu pi.) Hist. Real property held by an abbey in mortmain and therefore exempt from tithes. See MORTMAIN. abbot (ab-;lt). Eccles. law. A superior or governor of an abbey. Cf. ABBESS. abbreviated term sheet. See TERM SHEET. Abbreviatio Placitorum (;l-bree-vee-ay-shee-oh plas-i tor-;lm), n. [Law Latin "summary ofthe pleas"] Hist. An abstract ofpleadings culled from the rolls of the Curia Regis, Parliament, and common-law courts from the 12th to 14th centuries, compiled in the 17th century, printed in 1811, and attributed variously to Arthur Agarde, Deputy Chamberlain of the Exchequer, and to other keepers of the records. Cf. YEAR BOOKS. abbreviator. 1. One who abbreviates, abridges, or shortens. 2. Eccles. law. An officer in the court of Rome appointed as assistant to the vice-chancellor for drawing up the Pope's briefs and reducing petitions, when granted, into proper form to be converted into papal bulls. abbroachment (;l-brohch-mant), n. Hist. The act offore stalling the market by buying wholesale merchandise to sell at retail as the only vendor. Also spelled abbro chment; abbrochement. -abbroach, vb. ABC test. The rule that an employee is not entitled to unemployment insurance benefits if the employee (A) is free from the control of the employer, (B) works away from the employer's place ofbusiness, and (C) is engaged in an established trade. _ The name derives 4 ABC transaction from the A, B, and C commonly used in designating the three parts ofthe test. [Cases: Unemployment Com pensation C;:::> 16,28,29]. ABC transaction. Oil & gas. A sale ofa working interest from an owner (A) to an operator (B) in return for a cash payment and the right to another (usu. larger) payment when the well produces, followed by Ns sale of the right to the production payment to a corpora tion (C), which pays A in cash borrowed from a lender on C's pledge of the production payment. Thus A receives cash taxed at capital-gains rates, and B pays part ofthe purchase price with nontaxable production income. The tax advantages of this transaction were eliminated by the Tax Reform Act of 1969. abdication (ab-di-kay-sh;m), n. The act ofrenouncing or abandoning privileges or duties, esp. those connected with high office <Edward VIII's abdication of the Crown in 1936> <the court's abdication ofits judicial responsibility>. abdicate (ab-di-kayt), vb. abdi cable (ab-di-ka-bal), adj. -abdicator (ab-di-kay-tar), n. abditory (ab-di-tor-ee), n. [Law Latin abditorium "box, receptacle"] A repository used to hide and preserve goods or money. -Also termed abditorium (ab-di tor-ee-am). abduction (ab-d3k-shan), n. (17c) Criminal law. l. The act ofleading someone away by force or fraudulent persua sion. -Some jurisdictions have added various elements to this basic definition, such as that the abductor must have the intent to marry or defile the person, that the abductee must be a child, or that the abductor must intend to subject the abductee to concubinage or pros titution. 2. Archaic. The crime of taking away a female person, esp. one who is below a certain age (such as 16 or 18), without her effective consent by use of persua sion, fraud, or violence, for the purpose prostitution, or illicit sex. [Cases: Criminal Law 45.10.] 3. Loosely, KIDNAPPING. See ENTICEMENT OF A CHILD. abduct, vb. -abductor, n. -abductee, n. "Abduction seems not to have been a crime at early common law. but found its way thereinto through an old English statute which defined the crime substantially as the taking of a woman against her will for lucre. and afterwards marrying her. or causing her to be married to another, or defiling her, or causing her to be defiled." Justin Miller, Handbook ofCriminal Law 104. at 319 (1934). abearance (a-bair-ants), n. Archaic. Behavior; conduct. "The other species of recognizance. with sureties, is for the good abearance, or good behaviour. This includes security for the peace ... ," 4 William Blackstone. Commentaries on the Laws of England 253 (1769). ab epistolis (ab ee-pis-ta-lis), n. [Latin] Hist. An officer who maintained the correspondence (epistolae) for a superior; a secretary. Abercrombie classification. Trademarks. A characteriza tion ofa trade designation -whether by mark, name, or dress as generic, descriptive, suggestive, and arbi trary or fanciful, in increasing order ofdistinctiveness. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976). [Cases: Trademarks (;:::> 1033.] aberrant behavior (a-ber-ant). (1924) A Single act of unplanned or thoughtless criminal behavior. Many courts have held that aberrant behavior justi fies a downward departure that is, a more lenient sentence -under the federal sentencing guidelines, based on a comment in the introduction to the Guide lines Manual to the effect that the guidelines do not deal with Single acts of aberrant behavior. U.S. Sen tencing Guidelines Manual, ch. 1, pt. A, ! 4. [Cases: Sentencing and Punishment C;:::>868.] abesse (ab-es-ee), vb. [Law LatinJ Roman & civi/law. To be absent; to be away from a place where one is supposed to be (as before a court). Cf. ADESSE. abet (a-bet), vb. (14c) 1. To aid, encourage, or assist (someone), esp. in the commission ofa crime <abet a known felon>. 2. To support (a crime) by active assis tance <abet a burglary>. [Cases: Criminal Law 59(5).J See AID AND ABET. Cf. INCITE. abetment, n. abettor. A person who instigates the commission of a crime or advises and encourages others to commit it. Also spelled abetter. See principal in the second degree under PRINCIPAL. [Cases: Criminal LawC;:::>59.J ab extra (ab ek-stra), adv. [Latin] From outside; extra; beyond. abeyance (a-bay-ants), n. (17c) 1. Temporary inactivity; suspension. 2. Property. A lapse in succession during which no person is vested with title. abeyant, adj. "Abeyance. from the French bayer, to expect. is that which is in expectation. remembrance. and intendment of law. Bya prinCiple of law, in every land there is a fee simple in somebody. or else it is in abeyance; that is, though for the present it be in no man. yet it is in expectancy belonging to him that is next to enjoy the land." 1 Richard Burn. A New Law Dictionary 4 (1792). abiaticus (ab-ee-ay-td-kas), n. [Law Latin "descended from a grandfather"] Hist. A grandson in the male line; a son's son. -Also spelled aviaticus. abide, vb. (bef. 12c) 1. To tolerate or withstand <the widow found it difficult to abide the pain oflosing her husband>. 2. To obey; (with by) to act in accordance with or in conformity to <try to abide the doctor's order to quit smoking> <abide by the rules>. 3. To await <the death-row prisoners abide execution>. 4. To perform or execute (an order or judgment) <the trial court abided the appellate court's order>. 5. To stay or dwell <the right to abide in any of the 50 states>. ab identitate ration is (ab I-den-ti-tay-tee ray-shee-oh nis or rash-ee-oh-nis). [Law Latin] Hist. By identity of reason; for the same reason. abiding conviction. See CONVICTION. abigeatus (a-bij-ee-ay-tas), n. [Latin] Roman & civil law. The act ofstealing cattle by driving them away (abigere); cattle rustling. -In the later civil law, the usual term for this was abaction. -Also termed abigeat. abigeus (a-bij-ee-as), n. [Latin] Roman & civil law. One who steals cattle, esp. in large numbers; a cattle rustler. 5 abnormally dangerous activity This was known in the later civil law as an abactor. PI. abigei. 'The stealing of a single horse or ox might make a man an abigeus, but it seems that the crime could not be com mitted on less than four pigs or ten sheep. They need not however be taken all together. In such a state of the law one would expect thefts of three pigs or eight sheep to become abnormally common." 1James Fitzjames Stephen, A History of the Criminal Law ofEngland 27 (1883). ability. (l4c) The capacity to perform an act or service; esp., the power to carry out a legal act <ability to enter into a contract>. present ability. The actual, immediate power to do something (esp. to commit a crime). ab inconvenienti (ab in-k;:m-vee-nee-en-tI), adv. [Law Latin] From hardship or inconvenience. See arg

m-vee-nee-en-tI), adv. [Law Latin] From hardship or inconvenience. See argumen tum ab inconvenienti under ARGUMENTUM. ab initio (ab i-nish-ee-oh), adv. [Latin) (16c) From the beginning <the injunction was valid ab initio>. Cf. IN INITIO. ab intestato (ab in-tes-tay-toh), adv. [Latin] By intes tacy <succession ab intestato is often treated as being necessary because of the neglect or misfortune of the deceased proprietor>. Cf. EX TESTAMENTO. ab invito (ab in-vI-toh), adv. [Latin) By or from an unwill ing party; against one's will <a transfer ab invito>. Cf. IN INVITUM. ab irato (ab I-ray-toh), adv. [Latin) By one who is angry. This phrase usu. refers to a gift or devise made adversely to an heir's interests, out of anger. An action to set aside this type ofconveyance was known at common law as an action ab irato. abishering. See MISKERING. abjudge (ab-j~j), vb. Archaic. To take away or remove (something) by judicial decision. Cf. ADJUDGE. "As a result of the trial a very solemn judgment is pro nounced. The land is adjudged to the one party and his heirs, and abjudged (abiudicata) from the other party and his heirs for ever." 2 Frederick Pollock & FrederiC W. Maitland, The History of English Law Before the Time of Edward 163 (2d ed. 1899). abjudicatio (ab-joo-di-kay-shee-oh), n. [Law Latin) The act of depriving a person of a thing by judicial decision. abjuration (ab-juu-ray-sh;m), n. A renouncing by oath. abjuration ofthe realm. An oath taken to leave the realm forever. "If a malefactor took refuge [in sanctuary] ... the coroner came and parleyed with the refugee, who had his choice between submitting to trial and abjuring the realm. If he chose the latter course, he hurried dressed in pilgrim'S guise to the port that was assigned to him, and left England, being bound by his oath never to return. His lands escheated; his chattels were forfeited, and if he came back his fate was that of an outlaw." 2 Frederick Pollock & Frederic William Maitland, History ofEnglish Law Before the Time of Edward I 590 (2d ed. 1899). abjure (ab-joor), vb. 1. To renounce formally or on oath <abjure one's citizenship>. 2. To avoid or abstain from <abjure one's civic duties:>. abjuratory (ab-joor-<l tor-eel, adj. ablative fact. See divestitive fact under FACT. able, adj. Legally competent and qualified <able to transfer title>. able-bodied seaman. See SEAMAN. ablegate (ab-Id-gayt), n. A papal envoy on a special mission, such as a newly appointed cardinal's insignia ofoffice. ableism. Prejudice against or disregard of disabled people's needs and rights; discrimination that unrea sonably favors able-bodied persons. See DISCRIMINA TION (1), (2). ableist, adj. able seaman. See able-bodied seaman under SEAMAN. able to work. Labor law. (Of a worker) released from medical care and capable of employment; esp., not qualified to receive unemployment benefits on grounds ofillness or injury. [Cases: Unemployment Compensa tion (;::::;:>207.] ablocation (ab-Ioh-kay-shan). Archaic. The leasing of property for money. Cf. LOCATIO. abmatertera (ab-ma-t~r-t;)r-<l), n. [Latin) Civil law. A great-great-great aunt. See MATERTERA MAXIMA. abnepos (ab-nep-ahs or -ohs), n. [Latin] Civil law. A great-great grandson; the grandson of a grandson or granddaughter. abneptis (ab-nep-tis), n. [Latin) Civil law. A great-great granddaughter; the granddaughter of a grandson or granddaughter. abnormal law. The law as it applies to persons who are under legal disabilities such as infancy, alienage, insanity, criminality, and (formerly) coverture. abnormally dangerous activity. (1957) An undertak ing that necessarily carries with it a Significant risk of serious harm even if reasonable care is used, and for which the actor may face strict liability for any harm caused; esp., an activity (such as dynamiting) for which the actor is held strictly liable because the activity (1) involves the risk of serious harm to persons or property, (2) cannot be performed without this risk, regardless of the precautions taken, and (3) does not ordinarily occur in the community . Under the Restatement (Second) of Torts, determining whether an activity is abnormally dangerous includes analyzing whether there is a high degree of risk of harm, whether any harm caused will be substantial, whether the exercise of reasonable care will eliminate the risk, whether the activity is a matter of common usage, whether the activity is appropri ate to the place in which it occurs, and whether the activity's value to society outweighs its dangerousness. Restatement (Second) ofTorts 520 (1977). Also, esp. formerly, termed abnormally hazardous activity; extrahazardous activity; ultrahazardous activity. See strict liability under LIABILITY. [Cases: Negligence (;=: 305.] 6 abode abode. (l3c) A home; a fixed place of residence. See DOMICILE; PLACE OF ABODE. abogado (ah-boh-gah-doh), n. [Spanish) Spanish law. An advocate; a lawyer. ab olim (ab oh-lim), adj. [Law Latin] Of old. abolish, vb. To annul, eliminate, or destroy, esp. an ongoing practice or thing. abolition. (16c) 1. 1he act of abolishing. 2. TIle state of being annulled or abrogated. 3. (usu. cap.) The legal termination of slavery in the United States. [Cases: Slaves 4. Civil law. Withdrawal of a criminal accusation; a sovereign's remission of punishment for a crime. 5. Hist. Permission granted to the accuser in a criminal action to withdraw from its prosecution. See NOLLE PROSEQUI. abominable and detestable crime against nature. See SODOMY. a bon droit (ay or a bawn drwah), adv. [Law French] With good reason; justly; rightfully. ab orco usque ad coelum. [Latin] From the ground to the sky. Cf. USQUE AD COELUM. aboriginal cost. See COST (1). aboriginal title. See TITLE (2). abortee (~-bor-tee). A woman who undergoes an abortion. lCases: Abortion and Birth Control C=> 100.] aborticide. See ABORTIFACIENT. abortifacient (<l-bor-ta-fay-shant), n. A drug, article, or other thing designed or intended to produce an abortion. -Also (rarely) termed aborticide. abor tifacient, adj. abortion, n. (l6c) 1. An artificiallv induced termina tion of a pregnancy for the purp~se of destroying an embryo or fetus. _ In Roe v. Wade, the Supreme Court first recognized a woman's right to choose to end her pregnancy as a privacy right stemming from the Due Process Clause of the 14th Amendment. 410 U.S. 113,93 S.Ct. 705 (1973). Sixteen years later, in Webster v. Repro ductive Health Services, the Court permitted states to limit this right by allowing them to enact legislation that (1) prohibits public facilities or employees from performing abortions, (2) prohibits the use of public funds for family planning that includes information on abortion, or (3) severely limits the right to an abortion after a fetus becomes viable that is, could live inde pendently of its mother. 492 U.S. 490, 109 S.Ct. 3040 (1989). In 1992, the Court held that (1) before viabilitv, a woman has a fundamental right to choose to termi nate her pregnancy, (2) a law that imposes an undue burden on the woman's right to choose before viabil ity is unconstitutional, and (3) after viability, the state, in promoting its interest in potential human life, may regulate or prohibit abortion unless it is necessary to preserve the life or health ofthe mother. Planned Par enthood ofSoutheastern Pa. v. Casey, 505 U.S. 833,112 S.Ct. 2791 (1992). In 2000, the Court again considered abortion rights and reaffirmed Casey in holding the Nebraska law at issue unconstitutional because (1) it failed to provide an exception to preserve the health of the mother, and (2) it unduly burdened a woman's right to choose a late-term abortion, thereby unduly burdening her right to choose abortion itself. Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597 (2000). Formerly also termed procuring an abortion; criminal operation; criminal miscarriage; procuring miscarriage. [Cases: Abortion and Birth Control <;:2100.1 2. The spontaneous expulsion of an embryo or fetus before viability; MISCARRIAGE. abort, vb. -abortionist, n. "The word 'abortion,' in the dictionary sense, means no more than the expulsion of a fetus before it is capable of living. In this sense it is a synonym of 'miscarriage.' With respect to human beings, however, it has long been used to refer to an intentionally induced miscarriage as distinguished from one resulting naturally or by accident. There has been some tendency to use the word to mean a criminal miscarriage, and there would be distinct advan tages in assigning this meaning to it; but there are so many references to lawful abortion or justification for abortion that it is necessary to speak of 'criminal abortion' or the 'crime of abortion' to emphasize the element of culpa bility." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 186-87 (3d ed. 1982). "Modern legal historians dispute whether, and to what extent. abortion constituted a crime at English common law. One view finds that. at most, abortion was an ecclesi astical crime, and concludes that the common law allowed a woman and her abortionist to terminate a pregnancy at all stages of gestation without secular penalties. Another claims that all abortions are at least secular wrongs to the fetus and that only the problems of proving a causal relationship between some abortions and fetal death prevented the punishment of all abortions. Substantial authority exists, however, for a middle ground: although no penalties attached to abortions before the fetus had quickened, performing a postquickening abortion was a common-law crime, most likely a misdemeanor." Susan Frelich Appleton, "Abortion," in 1 Encyclopedia of Crime and Justice 1, 1 (Sanford H. Kadish ed., 1983). forced abortion. An abortion performed without the mother's consent. induced abortion. An abortion purposely and arti ficially caused either by the mother herself or by a third party. See ABORTIFACIENT. [Cases: Abortion and Birth Control late-term abortion. An abortion performed during the latter stages of pregnancy, usu. after the middle of the second trimester. [Cases: Abortion and Birth Control <.r'-:;-106.] partial-birth abortion. An abortion in which a fetus is partly extruded from the womb and then destroyed. lCases: Abortion and Birth Control C=> lO9.] spontaneous abortion. See MISCARRIAGE. therapeutic abortion. An abortion carried out to preserve the life or health of the mother. [Cases: Abortion and Birth Control C=>O.5.J "Until recently it was common to speak of 'therapeutic abortion.' The literal meaning of the term is an abortion induced for medical reasons, but it was commonly under stood to mean one for the purpose of saving the mother's life ...." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 193 (3d ed. 1982). 7 abortive child. See CHILD. abortive trial. See MISTRIAL. aboutissement (a-boo-tees-mahn), n. [Law French] An abut tal or abutment. above, adj. & adv. (Of an appellate court) having the power to review the case at issue; having dealt with an appeal in the case at issue;<the court above> <when the case was heard above, the issue was not raised>. Cf. BELOW. above-mentioned, adj. See AFORESAID. above-stated, adj. See AFORESAID. above-the-line, adj. (1973) (Of a deduction) taken after calculating gross income and before calculat ing adjusted gross income. _ Examples ofabove-the line deductions are IRA contributions and moving expenses. Formerly, individual tax returns had a dark line above which these deductions were written. Cf. BELOW-THE-LINE. [Cases: Internal Revenue <>3114.J abpatruus (ab-pa-tro

THE-LINE. [Cases: Internal Revenue <>3114.J abpatruus (ab-pa-troo-"s), n. [Latin] Roman & civil law. A great-great-great uncle. Also termed patruus maximus. A-B-Q trust. See bypass trust under TRUST. abridge, vb. (14c) 1. To reduce or diminish <abridge one's civil liberties>. 2. To condense (as a book or other writing) <the author abridged the treatise before final publication>. abridgment. 1. The reduction or diminution of some thing concrete (as a treatise) or abstract (as a legal right). 2. A condensed version ofa longer work 3. Hist. A legal digest or encyclopedia. abridgment ofdamages. 1he right ofa court to reduce the damages in certain cases. See REMITTITUR. [Cases: New Trial <>162(1).J abroad, adv. Outside a country; esp., other than in a forum country. abrogare (ab-roh-gair-ee), vb. [LatinJ Roman law. (16c) To remove something from an old law by a new law. Also termed exrogare. abrogate (ab-r<l-gayt), vb. (16c) To abolish (a law or custom) by formal or authoritative action; to annul or repeal. Cf. OBROGATE. abrogation, n. abrogation ofadoption. Family law. An action brought by an adoptive parent to terminate the parent-child relationship by annulment ofthe decree ofadoption. _ An adoption may be nullified ifit resulted from fraud, misrepresentation, or undue influence, or if nullifi cation is in the child's best interests. -Also termed annulment of adoption. Cf. WRONGFUL ADOPTION. [Cases: Adoption <>16.] ABS. abbr. 1. AMERICAN BUREAU OF SHIPPING. 2. AUTO MATED BOND SYSTEM. 3. See able-bodied seaman under SEAMAN. abscond (ab-skond), vb. (16c) 1. To depart secretly or suddenly, esp. to avoid arrest, prosecution, or service of process. 2. To leave a place, usu. hurriedly, with absolute-bar rule another's money or property. -abscondence (ab-skon d"nts), n. -absconder, n. absconding debtor. See DEBTOR. absence, n. (14c) 1. The state of being away from one's usual place of residence. 2. A failure to appear, or to be available and reachable, when expected. 3. Louisiana law. The state of being an absent person. - Also termed (in sense 3) absentia. [Cases: Absentees <>2.] absent debtor. See DEBTOR. absente (ab-sen-tee). [LatinJ In the absence of. -This term formerly appeared in law reports to note the absence of a judge <the court, absente Ellis, J., was unanimous>. absentee, adj. Not present <absentee voter>. absentee, adv. In the manner ofone who is not present <Debby voted absentee>. absentee, n. (17c) 1. A person who is away from his or her usual residence; one who is absent. 2. A person who is not present where expected. 3. A person who either resides out ofstate or has departed from the state without having a representative there. [Cases: Absen tees <>2.] "Generally, a person is an absentee when he is absent from his domicile or usual place of residence; but in light of pertinent statutes he is an absentee when he is without the state and has no representative therein." 1 c.J,S. Absentee 2, at 339 (1985). absentee ballot. 1. See BALLOT (2). 2. See absentee voting under VOTING. absentee landlord. See LANDLORD. absentee management. See absentee landlord under LANDLORD. absentee vote. See absentee voting under VOTING. absentee voting. See VOTING. absente reo (ab-sen-tee ree-oh). [LatinJ The defendant being absent. -This phrase appears syntactically as what English language grammarians term a "nomina tive absolute." absentia. 1. See ABSENCE (3). 2. IN ABSENTIA. absent parent. See noncustodial parent under PARENT. absent person. See PERSON (1). ABSO. abbr. See ANTISOCIAL BEHAVIOR ORDER. absoile (ab-soyl), vb. See ASSOIL absolute, adj. (14c) 1. Free from restriction, qualifica tion, or condition <absolute ownership>. 2. Conclu sive and not liable to revision <absolute delivery>. 3. Unrestrained in the exercise of governmental power <absolute monarchy>. -absolute, n. absolute assignee. See ASSIGNEE. absolute assignment. See ASSIGNMENT (2). absolute auction. See auction without reserve under AUCTION. absolute-bar rule. The principle that, when a creditor sells collateral without giving reasonable notice to 8 absolute contraband the debtor, the creditor may not obtain a deficiency judgment tor any amount ofthe debt that is not satisfied by the sale. -The rule governs commercially unrea sonable sales made in violation of the Ucc. [Cases: Mortgages (;=>375,559(3); Secured Transactions C= 230,240.] absolute contraband. See CONTRABAND. absolute conveyance. See CONVEYANCE. absolute covenant. See COVENANT (1). absolute deed. See DEED. absolute defense. See real defense under DEFENSE (4). absolute delivery. See DELIVERY. absolute disparity. (1976) Constitutionallaw.lhe differ ence between the percentage of a group in the general population and the percentage of that group in the pool of prospective jurors on a venire. -For example, ifAfrican-Americans make up 12% of a county's popu lation and 8% of the potential jurors on a venire, the absolute disparity of African-American veniremem bers is 4%. The reason for calculating the disparity is to analyze a claim that the jury was not impartial because the venire from which it was chosen did not represent a fair cross-section of the jurisdiction's population. Some courts criticize the absolute-disparity analysis, favoring instead the comparative-disparity analysis, in the belief that the absolute-disparity analysis under states the deviation. See FAIR-CROSS-SECTION REQUIRE MENT; DUREN TEST; STATISTICAL-DECISION THEORY. Cf. COMPARATIVE DISPARITY. [Cases: JuryC=33(1.1).] absolute divorce. See divorce a vinculo matrimonii under DIVORCE. absolute duty. See DUTY (1). absolute estate. See ESTATE (1). absolute gift. See inter vivos gift under GIFT. absolute guaranty. See GUARANTY. absolute immunity. See IMMUNITY (1). absolute interest. See INTEREST (2). absolute law. (16c) A supposed law ofnature thought to be unchanging in principle, although circumstances may vary the way in which it is applied. See NATURAL LAW. absolute legacy. See LEGACY. absolute liability. See strict liability under LIABILITY. absolute majority. See MAJORITY. absolute martial law. See MARTIAL LAW. absolute novelty. See NOVELTY. absolute nuisance. See NUISANCE. absolute nullity. See NULLITY. absolute obligation. See OBLIGATION. absolute pardon. See PARDON. absolute pollution exclusion. See pollution exclusion under EXCLUSION (3). absolute presumption. See conclusive presumption under PRESUMPTION. absolute-priority rule. Bankruptcy. The rule that a confirmable reorganization plan must provide for full payment to a class of dissenting unsecured credi tors before a junior class of claimants will be allowed to receive or retain anything under the plan. -Some jurisdictions recognize an exception to this rule when a junior class member, usu. a partner or shareholder of the debtor, contributes new capital in exchange for an interest in the debtor. 11 USCA 1129(b)(2)(B)(ii). [Cases: Bankruptcy C=3561.] absolute privilege. See PRIVILEGE (1). absolute property. See PROPERTY. absolute right. See RIGHT. absolute sale. See SALE. absolute simulated contract. See CONTRACT. absolute title. See TITLE (2). absolute veto. See VETO. absolutio (ab-s;}-loo-shee-oh). See ABSOLUTION (2). absolution (ab-sd-Ioo-sh;m). 1. Release from a penalty; the act of absolving. 2. Civil law. An acquittal of a criminal charge. -Also termed absolutio. 3. Eccles. law. Official forgiveness of a sin or sins. absolutism (ab-s;}-]oo-tiz-;}m), n. In politics, the rule of a dictator whose power has no restrictions, checks, or balances; the belief in such a dictatorship. absolutist (ab-sa-Ioo-tist), adj. & n. absolve (ab-or ;}b-zolv), vb. (15c) 1. To release from an obligation, debt, or responsibility. 2. To free from the penalties for misconduct. -absolver, n. absolvitor (ab-sol-vi-tar), n. Scots law. A decision in a civil action in favor ofthe defender; an acquittal. absolvitory, adj. absorbable risk. See RISK. absorption, n. (18c) 1. The act or process of including or incorporating a thing into something else; esp., the application of rights guaranteed by the U.S. Constitu tion to actions by the states. 2. Int'llaw. The merger of one nation into another, whether voluntarily or by subjugation. 3. Labor law. In a postmerger collective bargaining agreement, a provision allowing senior ity for union members in the resulting entity. 4. Real estate. The rate at which property will be leased or sold on the market at a given time. 5. Commercial law. A sales method by which a manufacturer pays the reseH er's freight costs, which the manufacturer accounts for before quoting the reseUer a price. -Also termed (in sense 5) freight absorption. -absorb, vb. absque (abs-kwee), adv. [Latin] Without. absque aliquo inde reddendo (abs-kwee al-a-kwoh in-dee ri-den-doh), adv. [Law Latin] Rist. Without ren dering anything therefrom. -This phrase appeared in royal grants in which no tenure was reserved. 9 absque consideratione curiae (abs-kwee kan-sid-a-ray shee-oh-nee kyoor-ee-ee), adv. [Law Latin] Without the consideration ofthe court; without judgment. absque dubio (abs-kwee d[yJoo-bee-oh), adv. [Latin] Without doubt. absque hoc (abs-kwee hok), adv. [Latin] Archaic. Without this. -The phrase was formerly used in common-law pleading to introduce the denial ofallegations. - Also termed sans ce que. See TRAVERSE. absque impetitione vasti (abs-kwee im-pa-tish-ee oh-nee vas-tIl, adv. [Law Latin] Hist. See WITHOUT IMPEACHMENT OF WASTE. absque injuria damnum (ab-skwee in-joor-ee-a dam nam). [Civil law] See DAMNUM SINE INJURIA. Often shortened to absque injuria. absque ipsius regis speciali licentia (abs-kwee ip-see-as ree-jis spesh-ee-ay-h li-sen-shee-a). [Law Latin] Hist. Without the special authority ofthe king himself. -The phrase was part ofa law forbidding Crown vassals from transferring land without a special warrant. absque tali causa (abs-kwee tay-II kaw-za), adv. [Law Latin] Without such cause. _ In common-law pleading, this was part ofthe larger phrase de injuria sua propria, absque tali causa ("of his own wrong, without such cause") appearing in a reply that a trespass plaintiff made to counter a defendant's claim of excuse. In an assault case, for example, if a defendant pleaded that he had struck the plaintiff in self-defense, the plaintiff could reply that the defendant was gUilty of his own wrong committed without such cause as alleged. See DE INJURIA. ABS Rules. Maritime law. Industry standards for the construction, maintenance, and operation ofseagoing vessels and stationary offshore facilities, as set and enforced by the American Bureau of Shipping. See AMERICAN BUREAU OF SHIPPING. [Cases: Shipping C:;:> 14.] abstain, vb. 1. To voluntarily refrain from doing some thing, such as voting in a deliberative assembly. 2. (Of a federal court) to refrain from exercising jurisdiction over a matter. [Cases: Federal Courts C:::>41-65.] abstention. (16c) 1. The act of Withholding or keeping back (something or oneself); esp., the act of abstain ing from voting. 2. A federal court's relinquishment of jurisdiction when necessary to avoid needless contlict with a state's administration ofits own affairs. 3. The legal principle underlying such a relinquishment of jurisdiction. Cf. COMITY; OUR FEDERALISM. [Cases: Federal Courts C:::

isdiction. Cf. COMITY; OUR FEDERALISM. [Cases: Federal Courts C:::>41-65.] Burford abstention. (1967) A federal court's refusal to review a state court's decision in cases involVing a complex regulatory scheme and sensitive areas of state concern. Burford v. Sun Oil Co., 319 U.S. 315,63 S.Ct. 1098 (1943). [Cases: Federal Courts C:::>43.] Colorado River abstention. (1976) A federal court's decision to abstain while relevant and parallel state court proceedings are under way. Colorado River abstract Water Conservation Dist. v. United States, 424 U.S. 800,96 S.Ct. 1236 (1976). [Cases: Federal Courts C:::> 43.] equitable abstention. A federal court's refraining from interfering with a state administrative agency's decision on a local matter when the aggrieved party has adequate relief in the state courts. permissive abstention. Bankruptcy. Abstention that a bankruptcy court can, but need not, exercise in a dispute that relates to the bankruptcy estate but that can be litigated, or is being litigated, in another forum. -In deciding whether to abstain, the bank ruptcy court must consider (1) the degree to which state law governs the case, (2) the appropriateness of the procedure to be followed in the other forum, (3) the remoteness of the dispute to the issues in the bankruptcy case, and (4) the presence of nondebtor parties in the dispute. 28 USCA 1334(c)(I). [Cases: Federal Courts ~-::>47.5.] Pullman abstention. (1963) A federal court's decision to abstain so that state courts will have an opportu nity to settle an underlying state-law question whose resolution may avert the need to decide a federal con stitutional question. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941). [Cases: Federal Courts C:::>43, 46.] Thibodaux abstention (tib-a-doh). (1974) A federal court's decision to abstain so that state courts can decide difficult issues of public importance that, if decided by the federal court, could result in unnec essary friction between state and federal authorities. Louisiana Power & Light Co. v. City afThibodaux, 360 U.S. 25, 79 S.Ct. 1070 (1959). [Cases: Federal Courts 43.] Younger abstention. (1972) 1. A federal court's decision not to interfere with an ongoing state criminal pro ceeding by issuing an injunction or granting declara tory relief, unless the prosecution has been brought in bad faith or merely as harassment. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971). Also termed equi table-restraint doctrine. [Cases: Federal Courts C:::>49, 51,54.] 2. By extension, a federal court's decision not to interfere with a state-court civil proceeding used to enforce the criminal law, as to abate an obscene nuisance. See OUR FEDERALISM. abstinence (ab-sta-n.Jnts). 1be practice of refraining completely from indulgence in some act; esp., the practice of not having sex or of not consuming alco holic beverages. abstract, n. (15c) 1. A concise statement of a text, esp. of a legal document; a summary. See ABSTRACT OF JUDGMENT; ABSTRACT OF TITLE. 2. Patents. A one-para graph summary ofan invention's design and function, including its nature, structure, purpose, and novelty. -The abstract is a required part of a patent applica tion, and also appears on the front page of the patent itself. It may not exceed 150 words. For the purpose of determining adequacy ofdisclosure, the abstract is 10 abstract compromis considered to be part ofthe specification. See 35 USCA 112. Also termed abstract ofthe disclosure; abstract ofthe specification. [Cases: Patents ~99.] abstract compromis. See general compromis under COM PROMIS. abstracter. See ABSTRACTOR. abstract idea. Intellectual Property. A concept or thought, removed from any tangible embodiment. An abstract idea is one of the categories of unpatent able subject matter, along with natural phenomena and laws ofnature. But a process that uses abstract ideas to produce a useful result can be patented. Copyright law likewise will not protect an abstract idea, but only its expression. The law ofunfair competition, on the other hand, does protect abstract ideas that meet the other criteria of a trade secret. See business-method patent under PATENT. [Cases: Patents ~6.] abstraction (ab-or <lb-strak-sh;m), n. (16c) 1. The mental process ofconsidering something without reference to a concrete instance <jurisprudence is largely the abstrac tion ofmany legal particulars>. 2. A theoretical idea not applied to any particular instance <utopia in any form is an abstraction>. 3. The summarizing and recording ofa legal instrument in public records <abstraction of the judgment in Tarrant County>. 4. The act oftaking with the intent to injure or defraud <the abstraction of funds was made possible by the forged signature on the check>. abstract (ab-strakt), vb. abstraction-filtration-comparison test. Copyright. A judicially created test for determining whether sub stantial similarity exists between two works in an action for infringement. _ First, the court dissects the copyrighted work's structure and isolates each level of abstraction or generality (abstraction test). Second, the court examines each level ofabstraction and separates out the unprotectable elements such as ideas, processes, facts, public-domain information, and merger material (filtration test). Finally, the court compares the result ing core of protectable expression with the accused work to determine whether substantial elements ofthe copyrighted work have been misappropriated (com parison test). This test was first applied by the Second Circuit in Computer Associates Int'l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). Although that case involved computer software and the test is usu. applied in software-infringement cases, the test has also been applied to nonsoftware works. -Also termed abstrac tion-filtration test. See SIMILARITY. Cf. ABSTRACTIONS TEST. [Cases: Copyrights and Intellectual PropertyG= 53(1).] abstractions test. Copyright. A means of comparing copyrighted material with material that allegedly infringes the copyright by examining whether the actual substance has been copied or whether the two works merely share the same abstract ideas. -The primary authority for the abstractions test is Judge Learned Hand's opinion in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930). Although referred to as a "test," it is not a bright-line test, but an approach to discerning the boundaries ofprotectable expression by isolating and comparing each level ofabstraction in the two works, from the lowest (most detailed) to the highest (most conceptual). Cf. ABSTRACTION-FILTRA TION-COMPARISON TEST; LOOK-AND-FEEL TEST. [Cases: Copyrights and Intellectual Property (;::>53(1).] abstract juridical act. See ACT. abstract of a fine. See NOTE OF A FINE. abstract ofconviction. A summary ofthe court's finding on an offense, esp. a traffic violation. [Cases: Automo biles ~144.2(5.1).] abstract ofjudgment. (1812) A copy or summary of a judgment that, when filed with the appropriate public office, creates a lien on the judgment debtor's nonex empt property. See judgment lien under LIEN. [Cases: Judgment ~768(1).] abstract of record. An abbreviated case history that is complete enough to show an appellate court that the questions presented for review have been preserved. [Cases: Appeal and Error Criminal Law 1103.] abstract ofthe disclosure. See ABSTRACT (2). abstract ofthe specification. See ABSTRACT (2). abstract of title. (1858) A concise statement, usu. prepared for a mortgagee or purchaser ofreal property, summarizing the history of a piece ofland, including all conveyances, interests, liens, and encumbrances that affect title to the property. Also termed brief; briefof title. [Cases: Abstracts ofTitle good and merchantable abstract oftitle. An abstract of title shOWing clear, good, and marketable title, rather than showing only the history ofthe property. See clear title, good title, and marketable title under TITLE (2). abstractor (ab-or <lb-strak-t<lr). A person who prepares abstracts of title. -Also spelled abstracter. [Cases: Abstracts ofTitle ~3.] abstract qnestion. See HYPOTHETICAL QUESTION. absurdity, n. The state or quality ofbeing grossly unrea sonable; esp., an interpretation that would lead to an unconscionable result, esp. one that the parties or (esp. for a statute) the drafters could not have intended and probably never considered. Cf. GOLDEN RULE. [Cases: Contracts ~154; Statutes 181(2).] A-B trust. See bypass trust under TRUST. ab urbe condita (ab ar-bee kon-di-t<l). [Latin] From the founding of the city (esp. Rome in 753 B.C.). -This term is sometimes used in abbreviated form in clas sical dates. For example, the date "23 A.U.C." means "23 years after the founding of Rome," or 730 B.C. - Abbr. A.V.C. abuse (<I-byoos), n. (15c) 1. A departure from legal or reasonable use; misuse. 2. Physical or mental maltreat ment, often resulting in mental, emotional, sexual, or physical injury. -Also termed cruel and abusive treat ment. Cf. NEGLECT; CRUELTY. 11 abuse o/the elderly. (1971) Abuse of a senior citizen, esp. by a caregiver or relative. Examples include deprivation of food or medication, beatings, oral assaults, and isolation. -Also termed elder abuse. [Cases: Assault and Battery C=>48.] carnal abuse. See sexual abuse (1). child abuse. (1891) 1. Intentional or neglectful physical or emotional harm inflicted on a child, including sexual molestation; esp., a parent's or caregiver's act or failure to act that results in a child's exploitation, serious physical or emotional injury, sexual abuse, or death. 2. An act or failure to act that presents an imminent risk of serious harm to a child. Child abuse can be either intentional or negligent. The first case of child abuse actually prosecuted occurred in New York City in 1874. An eight-year-old girl named Mary Ellen was found to have been severely abused. Her abusers were prosecuted under the law for pre vention ofcruelty to animals, since no law protect ing children then existed. Child abuse was first recognized as a medical concern in 1962, when Dr. e. Henry Kempe introduced the medical concept ofbattered-child syndrome. Also termed cruelty to a child; cruelty to children; child maltreatment. See abused child under CHILD; battered child under CHILD; BATTERED-CHILD SYNDROME. Cf. secondary abuse. [Cases: Infants C=> 13-13.5(2), domestic abuse. See domestic violence under VIOLENCE. elder abuse. See abuse 0/the elderly. emotional abuse. Physical or verbal abuse that causes or could cause serious emotional injury. -Also termed mental abuse; psychological abuse. mental abuse. See emotional abuse. psychological abuse. See emotional abuse. secondary abuse. Emotional harm suffered by children who, although they are not physically abused, witness domestic violence within their families. [Cases: Infants C=> 156.] sexual abuse. (1874) 1. An illegal or wrongful sex act, esp. one performed against a minor by an adult. Also termed carnal abuse. [Cases: Assault and Battery C=>59; Rape 13.] 2. RAPE (2). [Cases: Rape C=> 13.] spousal abuse. (l978) PhYSical, sexual, or psychologi cal abuse inflicted by one spouse on the other spouse; esp., wife-beating. See BATTERED-WOMAN SYNDROME. [Cases: Assault and Battery C=>48.] verbal abuse. Emotional abuse inflicted by one person on another by means ofwords, esp. spoken words, in a way that causes distress, fear, or similar emotions. Verbal abuse may include name-calling, insults, threatening gestures, excessive and unfounded criti cism, humiliation, and denigration. -Also some times termed vulgar abuse. vulgar abuse. See verbal abuse. abuse-of-rights doctrine abuse (;:)-byooz), vb. (15c) 1. To damage (a thing). 2. To depart from legal or reasonable use in dealing with (a person or thing); to misuse.

(a thing). 2. To depart from legal or reasonable use in dealing with (a person or thing); to misuse. 3. To injure (a person) phYSically or mentally. 4. In the context of child welfare, to hurt or injure (a child) by maltreatment. In most states, a finding of abuse is generally limited to mal treatment that causes or threatens to cause lasting harm to the child. abused child. See CHILD. abusee (;:)-byoo-zee), n. One who is or has been abused. abuse excuse. (l994) Criminal law. The defense that a defendant cannot tell right from wrong or control impulses because ofphYSical or mental abuse suffered as a child . Like the traditional excuse of insanity, the abuse excuse is asserted by a defendant in an effort to mitigate or avoid culpability for the crime charged. Cf. BATTERED-CHILD SYNDROME; BATTERED-WOMAN SYNDROME. [Cases: Criminal Law abuse ofdiscovery. See DISCOVERY ABUSE. abuse of discretion. (l8c) 1. An adjudicator's failure to exercise sound, reasonable, and legal decision-making. [Cases: Courts C=>26.]2. An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence. See DISCRETION (4). [Cases: Appeal and Error C=>946; Federal Courts C=>812.] abuse ofdistress. Hist. The wrongful seizure and use of another's property as a means ofcollecting damages or coercing the property's owner to perform a duty. abuse ofprocess. (1809) The improper and tortious use ofa legitimately issued court process to obtain a result that is either unlawful or beyond the process's scope. Also termed abuse oflegal process; malicious abuse ofprocess; malicious abuse o/legal process; wrongful process; wrongful process oflaw. Cf. MALICIOUS PROS ECUTION. [Cases: Process C=> l72-213.] "One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed is subject to liability to the other for harm caused by the abuse of process." Restatement (Second) of Torts 682 (1977). abuse of rights. 1. Int'llaw. A country's exercise of a right either in a way that impedes the enjoyment by other countries of their own rights or for a purpose different from that for which the right was created (e.g., to harm another country). 2. Louisiana law. A person's exercise of a right in an unneighborly spirit that provides no benefit to the person but causes damage to the neighbor. abuse-of-rights doctrine. Civil law. The principle that a person may be liable for harm caused by doing some thing the person has a right to do, if the right is exer cised (1) for the purpose or primary motive ofcausing harm, (2) without a serious and legitimate interest that is deserving ofjudicial protection, (3) against moral rules, good faith, or elementary fairness, or (4) for a purpose other than its intended legal purpose. [Cases: Torts C=>435.] 12 abuse of the elderly abuse ofthe elderly. See ABUSE. abuse-of-the-writ doctrine. (I973) Criminal procedure. The principle that a petition for a writ ofhabeas corpus may not raise claims that should have been, but were not, asserted in a previous petition. Cf. SUCCESSIVE WRIT DOCTRINE. [Cases: Habeas Corpus e:.~896.] abuser (a-byoo-zar), n. 1. One who abuses someone or something. 2. ABUSE (1). abusive (.3-byoo-siv), adj. 1. Characterized by wrongful or improper use <abusive discovery tactics>. 2. (Of a person) habitually cruel, malicious, or violent <abusive parent>. -abusively, adv. abusus (.3-byoo-s.3s), n. Civil law. The right to dispose of one's property. abut (a-b;)t), vb. (15c) To join at a border or boundary; to share a common boundary with <the company's land in Arizona abuts the Navajo Indian reservation>. abutment (a-bat-mant), n. abuttals (a-b<'Jt-alz). (17c) Land boundaries; the boundary lines of a piece of land in relation to other contiguous lands. Also termed (archaically) buttals. abutter (a-bat-.3r). 1. The owner of adjoining land; one whose property abuts another's. [Cases: Adjoining Landowners C=c 1.] "The major right of [an abutter) is that of access to his property a right of reasonable ingress and egress. He is entitled to compensation for any substantial impairment of this reasonable access. The right normally includes the right to have, at some point, a driveway onto his premises. An abutter does not have the right to the continued flow of traffic in the same amount or pattern past his premises." Osborne M. Reynolds Jr., Handbook of Local Government Law 180, at 620 (1982). 2. Land that adjoins the land in question. abutting foot. See FRONT FOOT. ale. abbr. ACCOUNT (4). academic, adj. 1. Of or relating to a school or a field of study; esp., of or relating to a field of study that is not vocational or commercial, such as the liberal arts <academic courses>. 2. Theoretical; specif., not practi calor immediately useful <academic question>. academic freedom. (1863) The right (esp. ofa university teacher) to speak freely about political or ideological issues without fear ofloss ofposition or other reprisaL [Cases: Colleges and Universities C=c8.l(3).] academic lawyer. A law professor, usu. one who main tains a law practice on the side. Academie de Droit International de La Haye. See HAGUE ACADEMY OF INTERNATIONAL LAW. academy. 1. An institution of higher learning. 2. An association dedicated to the advancement of knowledge in a particular field, such as the American Academy of Matrimonial Lawyers. 3. A private high school. 4. (cap.) A garden near Athens where Plato taught; hence, the school of philosophy that he led. a cancellando (ay kan-sd-lan-doh). [Law Latin) From canceling. "It has its name of chancery, cancellaria, from the judge who presides here, the lord chancellor or cancellaYius; who, Sir Edward Coke tells us, is so termed a cancellando, from cancelling the king's letters patents when granted contrary to law ... ." 3 William Blackstone, Commentaries on the Laws of England 46 (1768). a cancellis (ay kan-sel-is), n. [Law Latin) Rist. A chancel lor, so called because he performed the duties of office behind a cancelli ("lattice"). a cancellis curiae explodi (ay kan-sel-is kyoor-ee-I ek sploh-dI). [Law Latin] Hist. To be expelled from the bar of the court. a cause de cy (ay kaw-zd dd see), adv. [Law French] For this reason. accedas ad curiam (ak-see-das ad kyoor-ee-am), n. [Law Latin "you are to go to the court"] Hist. An original writ for removing a replevin action to a royal court from either of two feudal courts a court baron or a hundred court. -It is a recordare facias loquelam for replevin actions. See RECORDARE FACIAS LOQUELAM. accede (ak-seed), vb. 1. To consent or agree. 2. To be added (to something else) through accession. 3. To adopt. See ADOPTION (5). 4. (Of a body politic) to accept unification with or annexation into another body politic. -accession, n. accedence (ak-see dants), n. Accelerated Cost Recovery System. An accounting method that is used to calculate asset depreciation and that allows for the faster recovery of costs by assigning the asset a shorter useful life than was previously per mitted under the Internal Revenue Code. -This system applies to property put into service from 1981 to 1986. It was replaced in 1986 by the Modified Accelerated Cost Recovery System. Abbr. ACRS. [Cases: Internal RevenueC=c3476.] accelerated depreciation. See DEPRECIATION. accelerated depreciation method. See DEPRECIATION METHOD. accelerated disclosure. See accelerated discovery under DISCOVERY. accelerated discovery. See DISCOVERY. accelerated-reentry theory. See POST-EXPIRATION-SALES THEORY. accelerated remainder. See REMAINDER. acceleration, n. 1. The advancing of a loan agreement's maturity date so that payment of the entire debt is due immediately. [Cases: Bills and Notes 129(2).) 2. The shortening ofthe time for vesting in possession of an expectant interest. Also termed acceleration of remainder. [Cases: Remainders <~='5.]3. Property. The hastening ofan owner's time for enjoyment ofan estate because ofthe failure ofa preceding estate. 4. Securities. The SEC's expediting of a registration statement's effec tive date so that the registrant bypasses the required 20-day waiting period. -accelerate, vb. acceleration clause. (1905) A loan-agreement provision that requires the debtor to payoff the balance sooner 13 acceptance than the due date if some specified event occurs, such as failure to pay an installment or to maintain insurance. Cf. DEMAND CLAUSE; INSECURITY CLAUSE. [Cases: Bills and Notes (::=> 129(2).] acceleration of remainder. See ACCELERATION (2). Acceptable Identification of Goods and Services Manual. Trademarks. A U.S. Government publication that sets forth, for goods and services, known accept able international class categorizations and descriptions that may be used in trademark applications submit ted to the U.S. Patent and Trademark Office. This manual is available from the U.S. Government Printing Office, Washington, D.C. 20402 and through the PTO's website at http://www.uspto.gov. [Cases: Trademarks (::=> 1282, l369.] acceptance, n. (16c) 1. An offeree's assent, either by express act or by implication from conduct, to the terms ofan offer in a manner authorized or requested by the offeror, so that a binding contract is formed. If an acceptance modifies the terms or adds new ones, it generally operates as a counteroffer. Cf. OFFER. [Cases: Contracts (::=>22(1).] acceptance by silence. Acceptance of an offer not by explicit words but through the lack of an offeree's response in circumstances in which the relationship between the offeror and the offeree justifies both the offeror's expectation of a reply and the offeror's rea sonable conclusion that the lack of one signals accep tance. Ordinarily, silence does not give rise to an acceptance ofan offer. [Cases: Contracts (::=>22(1).] qualified acceptance. A conditional or partial accep tance that varies the original terms of an offer and operates as a counteroffer; esp., in negotiable instru ments (bills of exchange), an acceptor's variation of the terms of the instrument. [Cases: Bills and Notes (::=>83; Contracts (::=>23.] 2. A buyer's assent that the goods are to be taken in per formance ofa contract for sale . Under UCC 2-606, a buyer's acceptance consists in (1) signifying to the seller that the goods are conforming ones or that the buyer will take them despite nonconformities, (2) not making an effective rejection, or (3) taking any action inconsistent with the seller's ownership. Ifthe contract is for the sale ofgoods that are not identified when the contract is entered into, there is no acceptance until the buyer has had a reasonable time to examine the goods. But if the buyer deals with them as owner, as by resell ing them, a court may find constructive acceptance. [Cases: Sales (::=> 178(1).] "Acceptance means communicated acceptance .... [It] must be something more than a mere mental assent." William R. Anson, Principles of the Law of Contract 34 (Arthur L. Corbin ed., 3d Am. ed. 1919). [But Corbin adds:] ''This use of the word 'communicated' is open to some objection. To very many persons the word means that knowledge has been received. Frequently a contract is made even though the offeror has no such knowledge. In such case the accep tance is not 'communicated' and yet it consummates the contract." Id. n.2. "Acceptance of a conveyance or of a document containing a promise is a manifestation of assent to the terms thereof made, either before or after delivery, in accordance with any requirements imposed by the grantor or promisor. If the acceptance occurs before delivery and is not binding as an option contract, it is revocable until the moment of delivery." Restatement (Second) of Contracts 106 (1979). 3. The formal receipt of and agreement to pay a nego tiable instrument. [Cases: Bills and Notes (::=>66-84.] 4. A negotiable instrument, esp. a bill ofexchange, that has been accepted for payment. acceptance au besoin (oh b;l-zwan). [French "in case of need"] An acceptance by one who has agreed to pay the draft in case the drawee fails to do so.

in case of need"] An acceptance by one who has agreed to pay the draft in case the drawee fails to do so. acceptance for honor. An acceptance or undertaking not by a party to the instrument, but by a third party, for the purpose of protecting the honor or credit of one of the parties, by which the third party agrees to pay the debt when it becomes due if the original drawee does not. This type of acceptance inures to the benefit ofall successors to the party for whose benefit it is made. -Also termed acceptance supra protest; acceptance for honor supra protest. [Cases: Bills and Notes (::=>7l.] '''Acceptance for honour supra protest' is an exception to the rule that only the drawee can accept a bill. A bill which has been dishonoured by non-acceptance and is not overdue may, with the consent of the holder, be accepted in this way for the honour of either the drawer or an indorser (i.e., to prevent the bill being sent back upon the drawer or indorser as unpaid) by a friend placing his own name upon it as acceptor for the whole, or part only, of the amount of the bill; after a protest has been drawn up declaratory of its dishonour by the drawee. Similarly, where a bill has been dishonoured by non-payment and protested any person may intervene and pay it supra protest for the honour of any person liable thereon; the effect being to discharge all parties subsequent to the party for whose honour it is paid." 2 Stephen's Commentaries on the Laws of England 202-03 (L. Crispin Warmington ed., 21 st ed. 1950). accommodation acceptance. (1807) The acceptance of an offer to buy goods for current or prompt shipment by shipping nonconforming goods after notifying the buyer that the shipment is intended as an accommo dation. This type of "acceptance" is not truly an acceptance under contract law, but operates instead as a counteroffer ifthe buyer is duly notified. [Cases: Sales (::=>23(4).] banker'S acceptance. A bill ofexchange drawn on and accepted by a commercial bank. Banker'S accep tances are often issued to finance the sale ofgoods in international trade. -Abbr. BA. -Also termed bank acceptance. [Cases: Banks and Banking (::=> 189; Bills and Notes (::=> 15l.] blank acceptance. Acceptance by a bill-of-exchange drawee before the bill is made, as indicated by the drawee's signature on the instrument. conditional acceptance. An agreement to pay a draft on the occurrence or nonoccurrence of a particular event. [Cases: Bills and Notes (::=>83.] 14 acceptance au besoin express acceptance. A written or oral expression indi cating that the drawee has seen the instrument and does not dispute its sufficiency . While a written acceptance is typically signified by the stamped or written word "accepted" or "presented," usu. on the instrument itself, an oral acceptance must be made directly to a drawer or holder who has waived the right to a written acceptance. implied acceptance. An acceptance implied by a drawee whose actions indicate an intention to comply with the request of the drawer; conduct by the drawee from which the holder is justified in concluding that the drawee intends to accept the instrument. [Cases: Bills and Notes <>=-70.] special acceptance. An acceptance that departs from either the terms of a bill or the terms added to but not otherwise expressed in a bilL. An example is an acceptance ofa draft as payable in a particular place even though the draft contains no such limitation. Bills and Notes (;::::>83.] trade acceptance. A bill of exchange for the amount of a specific purchase, drawn on and accepted by the buyer for payment at a speCified time. [Cases: Bills and Notes (;=)1.] 5. An insurer's agreement to issue a policy ofinsurance. [Cases: Insurance (;::::> 1731.] "And in some instances, insurance companies have even specified in the application forms that acceptance of an applicant'S offer will not occur until the insurance policy is literally delivered to the applicant that is, the insurer chooses to structure the arrangement so that acceptance is to be manifested by the physical delivery of the insur ance policy to the applicant." Robert E. Keeton & Alan I. Widiss, Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices 2.1, at 39-40 (1988). 6. An heir's agreement to take an inheritance. See TACIT ACCEPTANCE. 7. See ADOPTION (5). accept, vb. acceptance au besoin. See ACCEPTANCE (4). acceptance by silence. See ACCEPTANCE (1). acceptance company. See sales finance company under FI:-lANCE COMPANY. acceptance credit. See time letter ofcredit under LETTER OF CREDIT. acceptance criteria. Intellectual Property. Agreed-on performance standards that custom-made products such as computer software or hardware or a commer cial website must meet before the customer is legally obligated to accept the product and pay for it. acceptance doctrine. Construction law. The principle that, once a property owner accepts the work ofa con tractor, the contractor is not liable to third parties for an injury arising from the contractor's negligence in performing under the contract, unless the injury results from a hidden, imminently dangerous defect that the contractor knows about and the owner does not know about. Also termed accepted-work doctrine. [Cases: Negligence 1205(8).J acceptance for honor. See ACCEPTANCE (4). acceptance-of-the-benefits rule. (1972) The doctrine that a party may not appeal a judgment after having voluntarily and intentionally received all or some part of the relief provided by it. [Cases: Appeal and Error C::c160; Federal Courts (;::::>543.] acceptance sampling. The practice of examining only a few items from a shipment to determine the accept ability ofthe whole shipment. acceptance supra protest. See acceptance for honor under ACCEPTANCE (4). acceptance testing. Intellectual Property. Formal experi ments conducted by or on behalf of the customer to determine whether computer software or hardware or a commercial website satisfies the customer's accep tance criteria . Usu., an acceptance-testing provision in a sales contract or license agreement is accompanied by a termination provision allowing the customer to back out of the contract if the product is not accept able. Also termed requirements testing. See ACCEP TANCE CRITERIA. [Cases: Copyrights and Intellectual Property (;::::> lO7.] acceptare (ak-sep4air-ee), vb. [Latin] Civil law. To accept or assent to, as a promise made by another. accepted-work doctrine. See ACCEPTANCE DOCTRINE. acceptilation (ak-sep-td-lay-sh;m), n. [fro Latin accepti latio "release"] Roman & civil law. An oral release from an obligation even though payment has not been made in full; a complete discharge, esp. through a fictitious payment. Also termed (in Roman law) acceptilatio. Cf.APOCHA. acceptor. A person or entity that accepts a negotiable instrument and agrees to be primarily responsible for its or performance. [Cases: Bills and Notes acceptor supra protest. One who accepts a bill that has been protested, for the honor of the drawer or an indorser. See acceptance for honor under ACCEPTANCE (4). [Cases: Bills and Notes C=>71,80.] accept service. To agree that process has been properly served even when it has not been. Also termed accept service ofprocess. [Cases: Process 166.] access, n. 1. An opportunity or ability to enter, approach, pass to and from, or communicate with <access to the courts>. 2. Family law. VISITATION (2). 3. Family law. The opportunity to have sexual intercourse. Cf. NON ACCESS. multiple access. Hist. In a paternity suit, the defense that the mother had one or more sexual partners other than the defendant around the time ofconcep tion. The basis for the defense is that because the mother bears the burden of proof, she must be able to prove that only the defendant could be the child's father. In some jurisdictions, this is still known by its common-law name, the exceptio plurium concuben tium defense, or simply the plurium defense. Juries or judges who wished to dismiss the case because 15 accessory of the mother's promiscuity, rather than because of the improbability of the defendant's paternity, often accepted this defense. Most states have now abro gated the defense. In recent years the issue of multiple access has declined in importance with the rise of highly accurate paternity testing. [Cases: Children Out-of-Wedlock C=;>50.] 4. Patents & Trademarks. The right to obtain infor mation about and to inspect and copy U.S. Patent and Trademark Office files of patents, patent applications, trademark applications, and inter partes proceedings pertaining to them. 5. Copyright. An opportunity by one accused of infringement to see, hear, or copy a copyrighted work before the alleged infringement took place <the duplication of the error proved that the defendant had access to the work> . Proof of access is required to prove copyright infringement unless the two works are strikingly similar. [Cases: Copyrights and Intellectual Property C=;>83(3.1).] "Since direct evidence of copying is rarely available, a plaintiff can rely upon circumstantial evidence to prove this essential element; the most important component of such circumstantial evidence to support a copyright infringement claim is proof of access. Evidence of access and substantial similarity create an inference of copying and establish a prima facie case of copying." 18 Am. Jur. 2d Copyright and Literary Property 206 (1985). 6. Copyright. The right to obtain information about and to inspect and copy U.S. Copyright Office files and deposited materials. See (for senses 3 & 4) POWER TO INSPECT. -access, vb. access easement. See EASEMENT. accessio (ak-s;}sh-ee-oh) n. [Latin] Roman law. 1. The doctrine by wp.ich something of lesser size, value, or importance is integrated into something of greater size, value, or importance. "If the identity of one thing (the accessory) is merged and lost in the identity of the other (the principal), the owner of the principal is the owner of the thing.... There is said to be accessio . ... The term is used by some com mentators (and, following them, by the French Civil Code) in a much wider sense to include all cases in which there has been an addition to my right, i.e. in which the object of my ownership has increased. The owner of an animal therefore acquires ownership of the young of the animal at birth by accessio, though in physical terms there has been not an accession but a separation. In this sense accessio includes all the original natural modes except occupatio and thesauri inventio. And there are other, intermediate, meanings. Since accessio as an abstract word is not Roman and no clear classification emerges from the texts, no one meaning or classification can be said to be 'right,' but those adopted by the French Civil Code are so wide as to be almost meaningless." Barry Nicholas, An Introduction to Roman Law 133 & n.1 (1962). 2. ACCESSION (4). accession (ak-sesh-.m). (16c) 1. The act of acceding or agreeing <the family's accession to the kidnapper's demands>. 2. A coming into possession of a right or office <as promised, the state's budget was balanced within two years after the governor's accession>. 3. Int'l law. A method by which a nation that is not among a treaty's original signatories becomes a party to it. <Italy became a party to the nuclear-arms treaty by accession>. See Vienna Convention on the Law ofTreaties, art. 15 (1155 U.N.T.S. 331, 8 LL.M. 679 (1969)). -Also termed adherence; adhesion. See INSTRUMENT OF ACCESSION. 4. The acquisition of title to personal property by bestow ing labor on a raw material to convert it to another thing <the owner's accession to the lumber produced from his land>. -Also termed (in Roman law) accessio. See ADJUNCTION (2). [Cases: Accession C=;> 1.] "Accessio is the combination of two chattels belonging to different persons into a single article: as when A's cloth is used to patch B's coat, or a vehicle let on hirepurchase has new accessories fitted to it." R.F.V. Heuston, Salmond on the Law of Torts 113 (17th ed. 1977). 5. A property owner's right to all that is added to the property (esp. land) naturally or by labor, including land left by floods and improvements made by others <the newly poured concrete driveway became the hom eowner,s property by accession> . In Louisiana law, accession is the owner's right to whatever is produced by or united with something, either naturally or arti ficially. La. Civ. Code arts. 483, 490, 507. Cf. ANNEXA TION. 6. An improvement to existing personal property, such as new shafts on golf clubs. "The problem of accessions arises infrequently, judging from reported cases, but an obvious instance of the dif ficulty arises where a motor vehicle is being financed by a secured party and the debtor in possession of necessity acquires a new engine or new tires for the vehicle .... Ifthe seller of the engine or tires reserved a security interest at the time the goods were installed, the seller should prevail over the vehicle's secured party, with a right to remove the accessions. Conversely, if the sale were on open credit with no security interest reserved, or if the seller acquired a security interest after installation of the goods, then the financer of the

with no security interest reserved, or if the seller acquired a security interest after installation of the goods, then the financer of the vehicle should prevail." Ray D. Henson, Handbook on Secured Transactions Under the Uniform Commercial Code 4-22, at 93 (2d ed. 1979). 7. The physical uniting of goods with other goods in such a manner that the identity ofthe original goods is not lost. UCC 9-102(a)(I). 8. ACCESSORYSHIP. access order. See VISITATION ORDER. accessorial (ak-s;}-sor-ee-;}l), adj. 1. (Of a promise) made for the purpose of strengthening another's credit <an accessorial pledge by way of guaranty>. -Also termed accessory. 2. Criminal law. Of or relating to the acces sory in a crime <accessorial guilt>. [Cases: Criminal Law C=;>68-77.] accessorial obligation. See COLLATERAL OBLIGATION. accessory (ak-ses-;}-ree), n. (15c) 1. Something of sec ondary or subordinate importance. 2. Criminal law. A person who aids or contributes in the commission or concealment of a crime . An accessory is usu. liable only if the crime is a felony. Cf. PRINCIPAL (2). [Cases: Criminal LawC=;>68-77; HomicideC=;>573.]- acces sory, adj. -accessoryship, n. "In most jurisdictions, the common-law distinctions between principals and accessories have largely been abolished, although the pertinent statutes vary in form and substance. Conceptually, the common-law pattern remains the same: The person who aids, abets, commands, counsels, or otherwise encourages another to commit a crime is still regarded as a party to the underlying crime 16 accessory building as at common law, even though the labels principal in the first degree, principal in the second degree, and accessory before the fact are no longer used, and even though it usually does not matter whether the aider and abettor is or is not present at the scene ofthe crime." 1 Charles E. Torcia, Wharton'S Criminal Law 35, at 202-03 (l5th ed. 1993). accessory after the fact. (I7c) An accessory who was not at the scene of the crime but knows that a crime has been committed and who helps the offender try to escape arrest or punishment. 18 USCA 3. -Most penal statutes establish the folloWing four require ments: (1) someone else must have committed a felony, and it must have been completed before the accessory's act; (2) the accessory must not be guilty as a principal; (3) the accessory must personally help the principal try to avoid the consequences of the felony; and (4) the accessory's assistance must be rendered with guilty knowledge. An accessory after the fact may be prosecuted for obstructing justice. -Some times shortened to accessory after. [Cases: Criminal Law (>74, 82.] "At common law, an accessory after the fact is one who, knowing that a felony has been committed by another, receives, relieves, comforts, or assists the felon, or in any manner aids him to escape arrest or punishment. To be guilty as an accessory after the fact one must have known that a completed felony was committed, and that the person aided was the guilty party. The mere presence of the defendant at the scene of the crime will not preclude a conviction as an accessory after the fact, where the evidence shows the defendant became involved in the crime after its commission." 21 Am. jur. 2d Criminal Law 209, at 275-76 (1998). accessory at the fact. See principal in the second degree under PRINCIPAL (2). "A principal in the second degree is one by whom the actual perpetrator of the felony is aided and abetted at the very time when it is committed; for instance, a car owner sitting beside the chauffeur who kills someone by over-fast driving, or a passenger on a dandestinejoy-riding expedition which results in manslaughter; or a bigamist's second 'wife,' if she knows he is committing bigamy. (In early law he was not ranked as a principal at ali, but only as a third kind of accessory the accessory at the fact.)" j.W. Cecil Turner, Kenny's Outlines ofCriminal Law 86 (l6th ed.1952). accessory before the fact. (17c) An accessory who assists or encourages another to commit a crime but who is not present when the offense is actually committed. -Most jurisdictions have abolished this category of accessory and instead treat such an offender as an accomplice. -Sometimes shortened to accessory before. See ACCOMPLlCE. [Cases: Criminal Law (> 68,8l.] "An accessory before the fact is a person who procures or advises one or more of the principals to commit the felony. This definition requires from him an instigation so active that a person who is merely shown to have acted as the stake-holder for a prize-fight, which ended fatally, would not be punishable as an accessory. The fact that a crime has been committed in a manner different from the mode which the accessory had advised will not excuse him from liability for it. Accordingly if A hires B to poison C, but B instead kills C by shooting him, A is none the less liable as accessory before the fact to COs murder. But a man who has counselled a crime does not become liable as accessory if, instead of any form of the crime suggested, an entirely different offence is committed." J.W. Cecil Turner, Kenny's Outlines ofCriminal Law 88 (16th ed. 1952). accessory building. See BUILDING. accessory contract. See CONTRACT. accessory obligation. See OBLlGATION. accessory right. See RIGHT. accessoryship. The status or fact ofbeing an accessory. Also termed (loosely) accession. accessory thing. See THING. accessory use. See USE (1). access to counsel. See RIGHT TO COUNSEL. access to justice. The ability within a society to use courts and other legal institutions effectively to protect one's rights and pursue claims. access-to-justice commissiou. An agency of a state's judicial system designed to encourage the judicial, executive, and legislative branches ofgovernment, the bar, law schools, legal-aid providers, and others to work together to proVide civil legal services to low-income citizens. accident, n. (14,) 1. An unintended and unforeseen inju rious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated. 2. Equity practice. An unforeseen and injurious occurrence not attributable to the victim's mistake, negligence, neglect, or misconduct; an unan ticipated and untoward event that causes harm. "The word 'accident,' in accident poliCies, means an event which takes place without one's foresight or expecta tion. A result, though unexpected, is not an accident; the means or cause must be aCCidental. Death resulting from voluntary physical exertions or from intentional acts of the insured is not aCCidental, nor is disease or death caused by the viciSSitudes of climate or atmosphere the result of an accident; but where, in the act which precedes an injury, something unforeseen or unusual occurs which produces the injury, the injury results through accident." lAjohn Alan Appleman &jean Appleman, Insurance Law and Practice 360, at 455 (rev. vol. 1981). "Policies of liability insurance as well as property and personal injury insurance frequently limit coverage to losses that are caused by 'accident.' In attempting to accommodate the layman's understanding of the term, courts have broadly defined the word to mean an occur rence which is unforeseen, unexpected, extraordinary, either by virtue of the fact that it occurred at all, or because of the extent of the damage. An aCCident can be either a sudden happening or a slowly evolving process like the percolation of harmful substances through the ground. Qualification of a particular incident as an accident seems to depend on two criteria; 1. the degree of foreseeability, and 2. the state of mind of the actor in intending or not intending the result." John F. Dobbyn, Insurance Law in a Nutshell 128 (3d ed. 1996). culpable accident. An accident due to negligence. _ A culpable accident, unlike an unavoidable accident, is no defense except in those few cases in which wrongful intent is the exclusive and necessary basis for liability. unavoidable accident. An accident that cannot be avoided because it is produced by an irresistible 17 physical cause that cannot be prevented by human skill or reasonable foresight. Examples include acci dents resulting from lightning or storms, perils ofthe sea, inundations or earthquakes, or sudden illness or death. Unavoidable accident has been considered a means of avoiding both civil and criminalliabil ity. Also termed inevitable accident; pure accident; unavoidable casualty. Cf. ACT OF GOD. lCases: Auto mobiles (::::::.201(10); Negligence (::::::-440.] "Inevitable accident ... does not mean a catastrophe which could not have been avoided by any precaution whatever, but such as could not have been avoided by a reasonable man at the moment at which it occurred, and it is common knowledge that a reasonable man is not credited with per fection of judgment." P.H. Winfield, A Textbook of the Law of Tort 15, at 43 (5th ed. 1950). "An unavoidable accident is an occurrence which was not intended and which, under all the circumstances, could not have been foreseen or prevented by the exercise of reasonable precautions. That is, an accident is considered unavoidable or inevitable at law if it was not proximately caused by the negligence of any party to the action, or to the accident:' W. Page Keeton et al.. The Law ofTorts 29, at 162 (5th ed. 1984). accidental, adj. 1. Not having occurred as a result of anyone's purposeful act; esp., resulting from an event that could not have been prevented by human skill or reasonable foresight. 2. Not having been caused by a tortious act. accidental death. See DEATH. accidental-death benefit. An insurance-policy provi sion that allows for an additional payment (often double the face amount of the policy) if the insured dies as a result of an accident, as defined in the policy, and not from natural causes. Abbr. ADB. [Cases: Insurance (,'='2599.] accidental harm. See HARM. accidentalia (ak-si-den-tay-lee-;J). [Law Latin "accidental things"] Hist. Incidents ofa contract; nonessential con tractual terms to which the parties expressly stipulate. Cf. ESSENTALIA. "Accidentalia have their existence entirely by express stipu lation, and are never presumed without it." William Bell, Bel/'S Dictionary and Digest of the Law of Scotland 406 (George Watson ed., 7th ed. 1890). accidentalia feudi (ak-si-den-tay-lee-a fyoo-dl). [Law Latin] Hist. All nonessential terms in a feudal contract; esp., those that are not essential to the fee (such as building restrictions). Cf. ESSENTIALIA FEUD!. accidental injury. See INJURY. accidental killing. (17c) Homicide resulting from a lawful act performed in a lawful manner under a reasonable belief that no harm could occur. -Also termed death by misadventure; homicide by misadventure; killing by misadventure; homicide per infortunium. Seejustifiable homicide under HOMICIDE; involuntary manslaughter under MANSLAUGHTER. Cf. MALICIOUS KILLING. [Cases: Homicide accidental stranding. See STRANDING. accommodation accident and health insurance. See health insurance under INSURANCE. accident-based insurance. See occurrence-based liability insurance under INSURANCE. accident insurance. See INSURANCE. accident policy. See INSURANCE POLICY. accidere (ak-sid-;Jr-ee), vb. [Latin] Civil law. 1. To fall down. 2. By extension, to befall or happen to. accipe ecclesiam (ak-si-pee e-klee-z[h]ee-;Jm). [Law Latin]lIist. Eccles. law. Receive this church or living. The phrase was used by Patrons in presenting an incumbent to a vacant parish. Trado tibi ecclesiam ("I deliver this church [or living] to you") was also used. Cf. TRADO TIBI ECCLESIAM. accipere (ak-sip-;Jr-ee), vb. [Latin] Civil law. To receive; esp., to take under a wilL accipitare (ak-sip-;>-tair-ee), vb. [Law Latin] Hist. To pay (a lord) in order to become a vassal; esp., to pay relief upon succeeding to an estate. acclamation. Parliamentary law. 1. Approval or election by general consent, usu. demonstrated by applause or cheering. Election by acclamation is common in large conventions where only one candidate has been nomi nated. 2. Voting by applause or shouting. accola (ak-;>-[;, n. [Latin "person living nearby"] 1. Roman law. A person who inhabits or occupies land near a certain place, such as one who dwells near a river. 2. Hist. An agricultural tenant; a tenant of a

near a certain place, such as one who dwells near a river. 2. Hist. An agricultural tenant; a tenant of a manor. accomenda (ak-;>-men-d;. Hist. Maritime law. A contract between a cargo owner and a shipmas ter whereby the parties agree to sell the cargo and divide the profits (after dedUCting the owner's costs). This contract actually consists of two agreements: a mandatum, by which the owner gives the shipmaster the power to dispose of the cargo, and a partnership contract, by which the parties divide any profits arising from the sale. See MANDATE (5). accommodated party. A party for whose benefit an accommodation party signs and incurs liability. Cf. ACCOMMODATION PARTY. [Cases: Bills and Notes (:::::: 48,122.] accommodation, n. (17c) 1. A loan or other financial favor. 2. The act of signing an accommodation paper as surety for another. See ACCOMMODATION PAPER. 3. The act or an instance of making a change or provision for someone or something; an adaptation or adjustment. 4. A convenience supplied by someone; esp., lodging and food. public accommodation. (1859) A business that provides lodging, food, entertainment, or other services to the public; esp. (as defined by the Civil Rights Act of 1964), one that affects interstate commerce or is supported by state action. [Cases: Civil Rights 1043.] reasonable accommodation. An adaptation, adjust ment, or allowance made for a disabled person's needs 18 accommodation acceptance or an employee's religious beliefs or practices without imposing an undue hardship on the party taking the action. -Under the Americans with Disabilities Act, an employer must make reasonable accommodations for an employee'S disability. Examples of reasonable accommodations that have been approved by the courts include providing additional unpaid leave, modifying the employee's work schedule, and reas signing the employee to a more appropriate, vacant position. See undue hardship under HARDSHIP. [Cases: Civil Rights (;::::; 1020, 1162, 1225.] accommodation acceptance. See ACCEPTANCE (4). accommodation bill. See ACCOMMODATION PAPER. accommodation director. See dummy director under DIRECTOR. accommodation indorsement. See INDORSEMENT. accommodation indorser. See INDORSER. accommodation land. See LAND. accommodation line. Insurance. One or more policies that an insurer issues to retain the business ofa valued agent, broker, or customer, even though the risk would not be accepted under the insurer's usual standards. accommodation loan. See LOAK. accommodation maker. See MAKER. accommodation note. See NOTE (1). accommodation paper. (18c) A negotiable instrument that one party cosigns, without receiving any consid eration, as surety for another party who remains pri marily liable. -An accommodation paper is typically used when the cosigner is more creditworthy than the principal debtor. -Also termed accommodation bill; accommodation note. [Cases: Bills and Notes 96.] accommodation party. (1812) A person who, without recompense or other benefit, signs a negotiable instru ment for the purpose ofbeing a surety for another party (called the accommodated party) to the instrument. The accommodation party can sign in any capacity (Le., as maker, drawer, acceptor, or indorser). An accommo dation party is liable to all parties except the accom modated party, who impliedly agrees to pay the note or draft and to indemnify the accommodation party for all losses incurred in having to pay it. See SURETY. Cf. ACCOMMODATED PARTY. [Cases: Bills and Notes 49,96, 122.] accommodation subpoena. Seefriendly subpoena under SUBPOENA. accommodation surety. See voluntary surety under SURETY. accommodatum (d-kom-d-day-tdm), n. See COMMODA TUM. accompany, vb. To go along with (another); to attend. _ In automobile-accident cases, an unlicensed driver is not considered accompanied by a licensed driver unless the latter is close enough to supervise and help the former. accomplice (;l-kom-plis). (1854) 1. A person who is in any way involved with another in the commission of a crime, whether as a principal in the first or second degree or as an accessory. -Although the definition includes an accessory before the fact, not all authorities treat this term as including an accessory after the fact. [Cases: Criminal Law (;::::;59.] "There is some authority for using the word 'accomplice' to include all principals and all accessories, but the preferred usage is to include all principals and accessories before the fact, but to exclude accessories after the fact. If this limitation is adopted, the word 'accomplice' will embrace all perpetrators, abettors and inciters." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 727 (3d ed. 1982). "A person is an 'accomplice' of another in committing a crime if, with the intent to promote or facilitate the com mission of the crime. he solicits, requests, or commands the other person to commit it, or aids the other person in planning or committing it." 1 Charles E. Torcia, Wharton'S Criminal Law 38, at 220 (15th ed. 1993). 2. A person who knowingly, voluntarily, and intention ally unites with the principal offender in committing a crime and thereby becomes punishable for it. See ACCESSORY. Cf. PRINCIPAL (2). "By definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commis sion of the substantive offense for which he is charged as an accomplice. State v. White, N.J. 1984,484 A.2d 691,98 N.J. 122." Model Penal Code 2.06 annot. (1997). accomplice liability. See LIABILITY. accomplice witness. See WITNESS. accompt. See ACCOUNT (1). accord, n. (14c) 1. An amicable arrangement between parties, esp. between peoples or nations; COMPACT; TREATY. 2. An offer to give or to accept a stipulated per formance in the future to satisfy an obligor's existing duty, together with an acceptance of that offer. -The performance becomes what is known as a satisfac tion. -Also termed executory accord; accord execu tory. See ACCORD AND SATISFACTION; SATISFACTION. Cf. COMPROMISE; NOVATION. [Cases: Accord and Sat isfaction (;::::; 1.1 "An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor's existing duty. Performance of the accord discharges the original duty," Restatement (Second) of Contracts 281(1) (1979). "The term executory accord is sometimes used to under score the point that the accord itself does not discharge the duty. It also reflects an historical anachronism, now generally rejected, under which an unperformed accord was not a defense to an action on the underlying duty." E. Allan Farnsworth, Contracts 4.24, at 289 n.10 (3d ed. 1999). 3. A signal used in a legal citation to introduce a case dearly supporting a proposition for which another case is being quoted directly. accord, vb.!. To furnish or grant, esp. what is suitable or proper <accord the litigants a stay of costs pending appeal>. 2. To agree <they accord in their opinions>. accord and satisfaction. (18c) An agreement to sub stitute for an existing debt some alternative form of 19 discharging that debt, coupled with the actual dis charge of the debt by the substituted performance. The new agreement is called the accord, and the discharge is called the satisfaction. Cf. COMPROMISE; NOVATION; SETTLEMENT (2), (3). [Cases: Accord and Satisfaction ~1.] "'Accord and satisfaction' means an agreement between the parties that something shall be given to, or done for, the person who has the right of action, in satisfaction of the cause of action. There must be not only agreement ('accord') but also consideration ('satisfaction'). Such an arrangement is really one of substituted performance." 1 EW. Chance, Principles ofMercantile Law 101 (PW. French ed., 13th ed. 1950). accordant (;}-kor-d;mt), adj. In agreement <accordant with these principles>. accord executory. See ACCORD (2). accouchement (;}-koosh-m;}nt or ak-oosh-mawn). [French] Childbirth. account, n. (14c) 1. ACCOUNTING (3) <the principal filed an action for account against his agent>. -Also spelled (archaically) accompt. [Cases: Account ~1-7] "The action of account lies where one has received goods or money for another in a fiduciary capacity, to ascertain and recover the balance due. It can only be maintained where there is such a relationship between the parties, as to raise an obligation to account, and where the amount due is uncertain and unliquidated." Benjamin J. Shipman, Handbook of Common-Law Pleading 56, at 144 (Henry Winthrop Ballantine ed., 3d ed. 1923). 2. ACCOUNTING (4) <the contractor filed an action for account against the nonpaying customer>. 3. A state ment by which someone seeks to describe or explain an event <Fred's account of the holdup differed sig nificantly from Martha's>. 4. A detailed statement of the debits and credits between parties to a contract or to a fidUciary relationship; a reckoning of monetary dealings <the trustee balanced the account at the end of each month>. In wills and estates, an account is a brief financial statement of the manner in which an executor or administrator has performed the official duties ofcollecting the estate's assets and paying those who are entitled. An account charges the executor or administrator with the value of the estate as shown by the inventory, plus any increase, and credits the executor with expenses and costs, duly authorized dis bursements, and the executor's commission. -Abbr. acct.; ale. -Also termed accounting. See STATEMENT OF ACCOUNT. 5. A course ofbusiness dealings or other relations for which records must be kept <open a bro kerage account>. account in trust. An account established by an individ ual to hold the account's assets in trust for someone else. [Cases: Trusts ~34.] account payable. (usu. pl.) (1936) An account reflecting a balance owed to a creditor; a debt owed by an enter prise in the normal course of business dealing. Often shortened to payable; payables. -Also termed note payable. PI. accounts payable. account account receivable. (usu. pl.) (1936) An account reflect ing a balance owed by a debtor; a debt owed by a customer to an enterprise for goods or services. Often shortened to receivable; receivables. -Also termed note receivable. PI. accounts receivable. account rendered. An account produced by the creditor and presented for the debtor's examination and accep tance. account settled. An account with a paid balance. account stated. (17c) 1. A balance that parties to a transaction or settlement agree on, either expressly or by implication . The phrase also refers to the agree ment itself or to the assent giving rise to the agree ment. [Cases: Account Stated ~1.] "An account stated is a manifestation of assent by debtor and creditor to a stated sum as an accurate computation of an amount due the creditor." Restatement (Second) of Contracts 282(1) (1979). "If a creditor and a debtor wish to compromise or liqui date a disputed or unliquidated debt, they may do so by either a substituted contract or an accord. If, however, their agreement is in the nature of a computation, it is called an account stated. An account stated, then, is a manifestation of assent by both parties to the stated sum as an accurate computation of the debt." E. Allan Farnsworth, Contracts 4.24, at 286 (1982). 2. A plaintiff's claim in a suit for such a balance. 3. Equity practice. A defendant's plea in response to an action for an accounting . The defendant states that the balance due on the statement of the account has been discharged and that the defendant holds the plaintiff's release. -Also termed stated account. accumulated-adjustments account. Tax. An item on the books of an S corporation (usu. an equity item on the corporation's balance sheet) to account for taxable-income items passed through to sharehold ers, such as accumulated earnings -earned before the corporation converted from a C corporation to an S corporation -that would have been distributed as a dividend to the shareholders if the corporation had remained a C corporation . One ofthe theories underlying the accumulated-adjustments account is that the shareholders should not be permitted to avoid dividend-tax treatment on a corporation's accumu lated earnings just because the corporation converts from C status to S status. IRC (26 USCA) 1368(e) (1). -Abbr. AAA. [Cases: Internal Revenue 3896.] adjunct account. An account that accumulates addi tions to another account. annual account. See intermediate account. assigned account. An account receivable that is pledged to a bank or factor as security for a loan. [Cases: Factors ~5;Pledges

that is pledged to a bank or factor as security for a loan. [Cases: Factors ~5;Pledges ~5; Secured Transactions ~181.] bank account. A deposit or credit account with a bank, such as a demand, time, savings, or passbook account. UCC 4-104(a). [Cases: Banks and Banking ~151.] blocked account. An account at a bank or other finan cial institution, access to which has been restricted either by the government or by an authorized person. An account may be blocked for a variety of reasons, as when hostilities erupt between two countries and each blocks access to the other's accounts. -Also termed frozen account. [Cases: Banks and Banking (;=128, 133, 151; War and National Emergency (;= 12.] book account. A detailed statement of debits and credits giving a history of an enterprise's business transac tions. [Cases: Account, Action On capital account. An account on a partnership's balance sheet representing a partner's share ofthe partnership capital. [Cases: Partnership (;=72,305.] charge account. See CHARGE ACCOUNT. client trust account. See CLIENT TRUST ACCOUNT. closed account. An account that no further credits or debits may be added to but that remains open for adjustment or setoff. community account. An account consisting ofcom munity funds or commingled funds. See COMMUNITY PROPERTY. contra account (kon-tr;t). An account that serves to reduce the gross valuation ofan asset. convenience account. An apparent joint account, but without right of survivorship, established by a creator to enable another person to withdraw funds at the cre ator's direction or for the creator's benefit. Unlike a true joint account, only one person, the creator, has an ownership interest in the depOSited funds. Con venience accounts are often established by those who need a financial manager's help and want to make it easy for the manager to pay bills. Although the man ager's name is on the account, he or she does not con tribute any personal funds to the account and can write checks or make withdrawals only at the direc tion ofor on behalf of the creator. [Cases: Banks and Banking Joint Tenancy (;=6.] current account. 1. A running or open account that is settled periodically, usu. monthly. [Cases: Account, Action On 2. A partner's account that reflects salary, withdrawals, contributions, and other trans actions in a given period. 3. Banking. A depositor's checking account. 4. The portion ofa nation's balance of payments that represents its exports, imports, and transfer payments. custodial account. An account opened on behalf of someone else, such as one opened by a parent for a minor child, and usu. administered by a responsible third party. _ Custodial accounts most often arise under the Uniform Transfers to Minors Act (1983). All states have enacted either that act or its earlier version, the Uniform Gifts to Minors Act. Property can be set aside by a donor or transferred to a third party as custodian for the benefit of a minor, usu. as an irrevocable gift. This is a much simpler mechanism than a trust. The custodian has powers and fiduciary duties similar to those of a trustee, except that the custodian is not under a court's supervision. The cus todian must account for the property and turn it over to the beneficiary when he or she reaches majority. See UNIFORM TRANSFERS TO MINORS ACT. [Cases: Infants deposit account. A demand, time, savings, passbook, or similar account maintained with a bank, savings and-loan association, credit union, or like organiza tion, other than investment property or an account evidenced by an instrument. UCC 9-102(a)(20). - Abbr. D.A. [Cases: Banks and Banking (;= 151; Building and Loan Associations (;=40.] drawing account. A temporary owner's equity account used by a sole proprietorship or a partnership to record an owner's or partner's withdrawals of cash or other assets from the business for personal use. escrow account. 1. A bank account, generally held in the name ofthe depositor and an escrow agent, that is returnable to the depositor or paid to a third person on the fulfillment ofspecified conditions. Also termed escrow deposit. See ESCROW (2). [Cases: Deposits and Escrows (;=11-26.] 2. See impound account. frozen account. See blocked account. impound account. An account of accumulated funds held by a lender for payment of taxes, insurance, or other periodic debts against real property. -Also termed escrow; escrow account; reserve account. See ESCROW (2). intermediate account. An account filed by an executor, administrator, or guardian after the initial account and before the final account. This account is usu. filed annually. -Also termed annual account. joint account. (l7c) A bank or brokerage account opened by two or more people, by which each party has a present right to withdraw all funds in the account and, upon the death of one party, the survi vors become the owners ofthe account, with no right of the deceased party's heirs or devisees to share in it. Typically, the account-holders are deSignated as "joint tenants with right of survivorship" or "joint and-survivor account-holders." In some jurisdictions, they must be so deSignated to establish a right ofsur vivorship. Abbr. JA. -Also termed joint-and-sur vivorship account. [Cases: Joint Tenancy 1,6.J lien account. A statement ofclaims that fairly informs the owner and public of the amount and nature of a lien. [Cases: Liens (;=9; Mechanics' Liens (;=116.] liquidated account. An account whose assets are clearly ascertained, either by agreement of the parties or by law. long account. An account involving numerous items or complex transactions in an equitable action, usu. referred to a master or commissioner. margin account. A brokerage account that allows an investor to buy or sell securities on credit, with the 21 accountable securities usu. serving as collateral for the broker's loan. multiple-party account. An account that has more than one owner with a current or future interest in the account. _ Multiple-party accounts include joint accounts, payable-on-death (P.O.D.) accounts, and trust accounts. Unif. Probate Code 6-201(5). mutual account. An account showing mutual trans actions between parties, as by showing debits and credits on both sides of the account. "[Elach party to a mutual account occupies both a debtor and creditor relation with regard to the other party. A mutual account arises where there are mutual dealings, and the account is allowed to run with a view to an ultimate adjustment of the balance. In order to establish a mutual account, it is not enough that the parties to the account have cross demands or cross open accounts: there must be an actual mutual agreement, express or implied, that the claims are to be set off against each other." 1 Am. Jur. 2d Accounts and Accounting 6, at 564 (1994). mutual-fund wrap account. An investment account that allocates an investor's assets only among mutual funds rather than stocks or other investments. See wrap account. negotiable-order-of-withdrawal account. See NOW account. nominal account (nahm-~-n~l). An income-statement account that is closed into surplus at the end of the year when the books are balanced. nominee account. Securities. A brokerage account in which the securities are owned by an investor but registered in the name of the brokerage firm. -The certificate and the records of the issuing company show the brokerage as the holder of record. But the brokerage records show the investor as the beneficial owner of the securities in the nominee account. Also termed street-name security. NOW account (now). An interest-bearing savings account on which the holder may write checks. Also termed negotiable-order-of-withdrawal account. [Cases: Banks and Banking G'=>305; Building and Loan Associations 0=>40.J offset account. One of two accounts that balance against each other and cancel each other out when the books are closed. open account. (ISc) 1. An unpaid or unsettled account. 2. An account that is left open for ongoing debit and credit entries by two parties and that has a fluctuat ing balance until either party finds it convenient to settle and close, at which time there is a Single liabil ity. [Cases: Account, Action On (,-,1.1,3.] partial account. (I8c) A preliminary accounting ofan executor's or administrator's dealings with an estate. [Cases: Executors and Administrators 0=>509(11).] pay-on-death account. A bank account whose owner instructs the bank to distribute the account's balance to a beneficiary upon the owner's death. Unlike a jOint-and-survivorship account, a pay-on death account does not give the beneficiary access to the funds while the owner is alive. Abbr. POD account. -Also termed pay-on-death bank account. [Cases: Banks and Banking 0=> 128, 151.] pledged account. A mortgagor's account pledged to a lender in return for a loan bearing interest at a below market rate. profit-and-loss account. A transfer account of all income and expense accounts, closed into the retained earnings of a corporation or the account of a partnership. [Cases: Corporations Partner ship 0=>305, 376.] real account. An account that records assets and liabili ties rather than receipts and payments. reserve account. See impound account. revolving charge account. See revolving credit under CREDIT (4). running account. (I8c) An open, unsettled account that exhibits the reciprocal demands between the parties. sequestered account. An account (such as a joint bank account) that a court has ordered to be separated, frozen, and impounded. share-draft account. An account that a member maintains at a credit union and that can be drawn on through the use of share drafts payable to third parties. A share-draft account operates much like a checking account operates at a bank. Also termed share account. [Cases: Building and Loan Associa tions C:-'40.] suspense account. A temporary record used in book keeping to track receipts and disbursements of an uncertain nature until they are identified and posted in the appropriate ledgers and journals . A suspense account does not appear in a final financial statement. It is a useful tool when, for example, a lump-sum receipt or expenditure must be broken down to match several transactions before posting. tax-deferred account. An interest-bearing account whose earnings are not taxable as income to the account holder before the earnings are withdrawn. -Tax-deferred accounts include most types ofIRAs, variable annuities, 401(k) plans, cash-value life insur ance, and most other types of tax-deferred savings instruments. trust account. See CLIENT TRUST ACCOUNT. wrap account. An investment account for which the investor, helped by a stockbroker, selects an account manager and pays a fee based on a percentage of the total assets to be managed. -Most wrap accounts contain a portfolio ofinvestments, including stocks, bonds, and cash. Investors generally proVide a risk profile but do not select the investments or give instructions to buy or selL -Also termed wrapJee account. See mutualJund wrap account. accountable, adj. (14c) Responsible; answerable <the company was held accountable for the employee'S neg ligence>. accountability, n. 22 accountable receipt accountable receipt. See RECEIPT. accountant. 1. A person authorized under applicable law to practice public accounting; a person whose business is to keep books or accounts, to perform finan cial audits, to design and control accounting systems, and to give tax advice . For some purposes, the term includes a professional accounting association, a cor poration, and a partnership, ifthey are so authorized. [Cases: Accountants C=> 1.] certified public accountant. An accountant who has satisfied the statutory and administrative require ments to be registered or licensed as a public accoun tant. Abbr. CPA. 2. A defendant in an action of account. accountant-client privilege. See PRIVILEGE (3). accountant ofcourt. Scots law. An official of the Court of Session who exercises supervision over the accounts of court-appointed managers and receivers of estates, such as trustees in bankruptcy and guardians ofincom petent persons. accountant's lien. See LIEN. account book. A journal in which a business's transac tions are recorded. See SHOP BOOKS. account debtor. See DEBTOR. account duty. See DUTY (4). account executive. See STOCKBROKER. account for. (17c) 1. To furnish a good reason or con vincing explanation for; to explain the cause of. 2. To render a reckoning of (funds held, esp. in trust). 3. To answer for (conduct). accounting. (I8c) 1. The act or a system ofestablishing or settling financial accounts; esp., the process ofrecord ing transactions in the financial records of a business and periodically extracting, sorting, and summariz ing the recorded transactions to produce a set of finan cial records. Also termed financial accounting. Cf. BOOKKEEPING. 2. A rendition of an account, either voluntarily or by court order . The term frequently refers to the report of all items of property, income, and expenses prepared by a personal representative, trustee, or guardian and

to the report of all items of property, income, and expenses prepared by a personal representative, trustee, or guardian and given to heirs, beneficiaries, or the probate court. See ACCOUNT (4). 3. A legal action to compel a defendant to account for and pay over money owed to the plaintiff but held by the defendant (often the plaintiff's agent); ACCOUNTING FOR PROFITS. Also termed account render; account; action ofaccount. 4. More broadly, an action for the recovery of money for services performed, property sold and delivered, money loaned, or damages for the nonperformance of simple contracts. _ Such an action is available when the rights ofparties will be adequately protected by the payment of money. -Also termed action on account; account; action ofbook debt. 5. Commercial law. An equitable proceeding for a complete settlement of all partnership affairs, usu. in connection with partner misconduct or with a winding up. See WINDING UP. [Cases: Part nership 376.]6. Secured transactions. A record that (1) is authenticated by a secured party, (2) indicates the aggregate unpaid secured obligation as ofa date no more than 35 days before or after the date of the record, and (3) identifies the components ofthe obligations in reasonable detail. DCC 9-102(a)(2}. [Cases: Secured Transactions accounting for fruits. Civil law. A claim for the return of natural or civil fruits against an adverse possessor or other person obligated by law or contract to account for fruits. See FRUIT (2). accounting for profits. (1871) An action for equitable relief against a person in a fiduciary relationship to recover profits taken in a breach ofthe relationship. Often shortened to accounting. "The term accounting, or accounting for profits, is used in several ways. In its most important meaning, it is a restitu tionary remedy based upon avoiding unjust enrichment. In this sense it reaches monies owed by a fiduciary or other wrongdoer, including profits produced by property which in equity and good conscience belonged to the plaintiff. It resembles a constructive trust in that tracing may be used to reach profits. But even if tracing fails, the plaintiff may recover a judgment for the profits due from use of his property." Dan B. Dobbs, Law of Remedies 4.3(5), at 408 (2d ed. 1993). accounting method. (1908) A system for determin ing income and expenses, profit and loss, asset value, appreciation and depreciation, and the like, esp. for tax purposes. accrual accounting method (<"l-kroo-<"ll). (1942)An accounting method that records entries of debits and credits when the revenue or liability arises, rather than when the income is received or an expense is paid. Also termed accrual basis. Cf. cash-basis accounting method. [Cases: Internal Revenue 3099; Taxation C:::::>3538.J capitalization accounting method. A method ofdeter mining an asset's present value by discounting its stream of expected future benefits at an appropriate rate. cash-basis accounting method. (1954)An accounting method that considers only cash actually received as income and cash actually paid out as an expense. Cf. accrual accounting method. [Cases: Internal Revenue C=>3100; Taxation C=>3538.] completed-contract accounting method. A method of reporting profit or loss on certain long-term contracts by recognizing gross income and expenses in the tax year that the contract is completed. [Cases: Internal Revenue Taxation C=3538.] cost accounting method. The practice ofrecording the value of assets in terms of their historical cost. Also termed cost accounting. direct charge-off accounting method. A system of accounting by which a deduction for bad debts is allowed when an account has become partially or completely worthless. equity accounting method. A method of accounting for long-term investment in common stock based 23 accrued asset on acquisition cost, investor income, net losses, and dividends. Jair-value accounting method. The valuation ofassets at present actual or market value. _ When this method is used to determine the value of a security or other financial instrument, it is also termed mark-to-market accounting method. installment accounting method. (1954) A method by which a taxpayer can spread the recognition ofgains from a sale of property over the payment period by computing the gross-profit percentage from the sale and applying it to each payment. [Cases: Internal Revenue G~3104; Taxation C=>3538.] mark-to-market accounting method. See fair-value accounting method. percentage-oj-completion method. An accounting method in which revenue is recognized gradually during the completion of the subject matter of the contract. physical-inventory accounting method. A method of counting a company's goods at the close of an accounting period. purchase accounting method. A method ofaccounting for mergers whereby the total value paid or exchanged for the acquired firm's assets is recorded on the acquiring firm's books, and any difference between the fair market value of the assets acquired and the purchase is recorded as goodwill. accounting period. (1903)A regular span of time used for accounting purposes; esp., a period used by a taxpayer in determining income and related tax liability. Accounting Research Bulletin. A publication con taining accounting practices recommended by the American Institute ofCertified Public Accountants. - Abbr. ARB. Accounting Series Release. A bulletin providing the Securities and Exchange Commission's requirements for accounting and auditing procedures to be followed in reports filed with that agency. -Abbr. ASR. account in trust. See ACCOUNT. account party. The customer in a letter-of-credit trans action. -Also termed applicant. account payable. See ACCOUNT. account receivable. See ACCOUNT. account render. See ACCOUNTING (3). account rendered. See ACCOUNT. account representative. See STOCKBROKER. account settled. See ACCOUNT. accounts-receivable insurance. See accounts-receivable insurance and credit insurance under INSURANCE. account stated. See ACCOUNT. account statement. See STATEMENT OF ACCOUNT. accouple, vb. Archaic. To unite; to marry. accredit (<'1-kred-it), vb. 1. To give official authorization or status to. 2. To recognize (a school) as having suf ficient academic standards to qualify graduates for higher education or for professional practice. [Cases: Schools C=o4.] 3. Int'llaw. To send (a person) with cre dentials as an envoy. accreditation (,,-kred-i-tay shan), n. -accredited, adj. accredited investor. See INVESTOR. accredited law school. See LAW SCHOOL. accredited representative. See REPRESENTATIVE. accredulitare (,,-kred-Yd-Id-tair-ee), vb. [Law Latin] Hist. To purge an offense by an oath. accresce (a-kres), vb. Civil law. To accrue or increase. accretion (d-kree-shan). (1830) 1. The gradual accu mulation of land by natural forces, esp. as alluvium is added to land situated on the bank of a river or on the seashore. Cf. ALLUVION; AVULSION (2); DELlCTION; EROSION. [Cases: Navigable Waters Waters and Water Courses C=>93.] 2. Any increase in trust property other than increases ordinarily considered as income. [Cases: Trusts 3. Civil law. The right of heirs or legatees to unite their shares ofthe estate with the portion of any coheirs or legatees who do not accept their portion, fail to comply with a condition, or die before the testator. 4. A beneficiary's gain through the failure ofa coheir or colegatee to take his or her share. 5. Scots law. The perfection of an imperfect or defective title by some act by the person who conveyed title to the current holder. -accretive, accretionary, adj. accroach (a-krohch), vb. (16c) To exercise power without authority; to usurp. -accroachment (a-krohch-m;mt), n. accrocher (a-kroh-shay), vb. [Law French]l. ACCROACH. 2. To delay. accrocher un proces (a-kroh-shay an proh-say). [French] To stay the proceedings in a suit. accrual, clause of. See CLAUSE OF ACCRUAL. accrual accounting method. See ACCOUNTING METHOD. accrual basis. See accrual accounting method under ACCOUNTING METHOD. accrual bond. See BOND (3). accrue (a-kroo), vb. (ISc) 1. To come into existence as an enforceable claim or right; to arise <the plaintiff's cause of action for silicosis did not accrue until the plaintiff knew or had reason to know ofthe disease>. [Cases: Action Limitation ofActions ~43-64.J 'The term 'accrue' in the context of a cause of action means to arrive, to commence, to come into existence, or to become a present enforceable demand or right. The time of accrual of a cause of action is a question of fact." 2 Ann Taylor Schwing, California Affirmative Defenses 25:3, at 17-18 (2d ed. 1996). 2. To accumulate periodically <the savings-account interest accrues monthly>. -accrual, n. accrued asset. See ASSET. 24 accrued compensation accrued compensation. See COMPENSATION. accrued depreciation. See accumulated depreciation under DEPRECIATION. accrued dividend. See accumulated dividend under DIVIDEND. accrued expense. See EXPENSE. accrued income. See INCOME. accrued interest. See INTEREST (3). accrued liability. See LIABILITY. accrued right. See RIGHT. accrued salary. See SALARY. accrued tax. See TAX. accruer. See CLAUSE OF ACCRUAL. accruing costs. See COST (3). acct. abbr. ACCOUNT (4). accumulando jura juribus (..-kyoom-p-lan-doh joor-.. joor-i-b ..s). [Law Latin] Hist. By adding rights to rights. "[Accumulando jura juribus] will be found in deeds, as expressing the intention of the maker or granter of it that the right thereby conferred on the grantee is not to be regarded as coming in place of other rights which the grantee has or may acquire otherwise, but as an addition thereto: the rights conferred are not prejudicial to other rights existing or future." John Trayner, TrayneY"s Latin Maxims 10 (4th ed. 1894). accumulated-adjustments account. See ACCOUNT. accumulated deficit. A business's net losses that are carried over on the balance sheet from earlier periods. -The deficit is shown under owners' or stockholders' equity. accumulated depreciation. See DEPRECIATION. accumulated dividend. See DIVIDEND. accumulated-earnings credit. See CREDIT (7). accumulated-earnings tax. See TAX. accumulated income. See INCOME. accumulated legacy. See LEGACY. accumulated profit. See PROFIT (1). accumulated surplus. See SURPLUS. accumulated taxable income. See INCOME. accumulatio actionum (a-kyoom-ya-Iay-shee-oh ak-shee-oh-nam). [Law Latin] Scots law. The accumu lation of actions, which was permitted only in certain circumstances, as when a widow and her children jointly sued to recover damages for the husband's and father'S death. accumulation, n. 1. The increase ofa thing by repeated additions to it; esp., the increase of a fund by the repeated addition of the income that it creates. 2. The concurrence of several titles to the same thing. 3. The concurrence of several circumstances to the same proof. 4. The retention of dividends for future distri bution. 5. Insurance. An increase in the principal sum insured for, effective upon renewal ofa policy, without a change ofpremiums. accumulate, vb. accumulations, rule against. (1924) The rule that a direction to accumulate income from property the income to be distributed later to certain beneficiaries is valid only if confined to the perpetuity period. Cf. RULE AGAINST PERPETUITIES. [Cases: Perpetuities Cr-:;:, 9.] accumulation trust. See TRUST. accumulative (a-kyoo-mya-Iay-tiv or -la-tiv), adj. Increasing by successive addition; cumulative. accumulative damages. See DAMAGES. accumulative dividend. See cumulative dividend under DIVIDEND. accumulative judgment. See JUDGMENT. accumulative legacy. See LEGACY. accumulative sentences. See consecutive sentences under SENTENCE. accusation, n. (14c) 1. A formal charge of criminal wrongdoing. -The accusation is usu. presented to a court or magistrate haVing jurisdiction to inquire into the alleged crime. 2. A statement that a person has engaged in an illegal or immoral act. malicious accusation. An accusation against another for an improper purpose and without probable cause. See MALICIOUS PROSECUTION. accusatio suspecti tutoris (ak-yoo-zay-shee-oh sa-spek

SECUTION. accusatio suspecti tutoris (ak-yoo-zay-shee-oh sa-spek-tI t[y]oo-tor-is). [Latin "accusation against a suspected tutor"] Roman law. A civil action on behalf of a child under the age ofpuberty against a tutor for negligence or fraud in the performance ofthe tutor's duties. accusator (ak-yoo-zay-tar), n. [Latin] Roman law. The person who brought charges in a criminal case. Pi. accusatores. accusatorial system. See ADVERSARY SYSTEM. accusatory (~-kyoo-z .. -tor-ee), adj. Of, relating to, or constituting an accusation. accusatory body. (1877) A body (such as a grand jury) that hears evidence and determines whether a person should be charged with a crime. accusatory instrument. See CHARGING INSTRUMENT. accusatory part. The section ofan indictment in which the offense is named. accusatory pleading. See PLEADING (1). accusatory procedure. See ADVERSARY SYSTEM. accusatory stage. (1954) Criminal procedure. The pOint in a criminal proceeding when the suspect's right to counsel attaches. -This occurs usu. after arrest and once interrogation begins. Cf. CRITICAL STAGE. [Cases: Criminal Law 1718]. accusatrix (a-kyoo-z;:)-triks), n. Hist. A female accuser. accuse, vb. (14c) To charge (a person) judicially or publicly with an offense; to make an accusation against 25 acknowledgment of debt <she accused him of the crime> <he was accused as an accomplice>. accused, adj. Of or relating to someone or something implicated in wrongdoing <accused infringer>; esp., of or relating to a product that allegedly infringes some one's intellectual-property rights <accused device> <accused work>. accused, n. (I6c) 1. A person who has been blamed for wrongdoing; esp., a person who has been arrested and brought before a magistrate or who has been formally charged with a crime (as by indictment or informa tion). 2. A person against whom legal proceedings have been initiated. accuser. Eccles. law. A person who accuses another of a crime. In ecclesiastical courts, an accuser cannot be a person who has been convicted of a crime, has been excommunicated, or is otherwise disqualified. accusing jury. See GRAND JURY. a ce (a sa), adv. [Law French] For this purpose. a eel jour (d sel zhoor), adv. [Law French] At this day. ac etiam (ak ee-shee-dm or esh-ee-dm). [Law Latin] Com mon-law pleading. 1. And also. 1hese words intro duced a genuine claim in a pleading in a common-law case in which a fictitious claim had to be alleged to give the court jurisdiction. In other words, the phrase ac etiam directed the court to the real cause ofaction. Also spelled acetiam. "[TJo remedy this inconvenience, the officers of the king's bench devised a method of adding what is called a clause of ac etiam to the usual complaint of trespass; the bill of Middlesex commanding the defendant to be brought in to answer the plaintiff of a plea of trespass, and also to a bill of debt: the complaint of trespass giving cognizance to the court, and that of debt authorizing the arrest." 3 William Blackstone, Commentaries on the Laws ofEngland 288 (1768). "[Once] it was established that the King'S Bench was not exclusively a court for 'crown cases,' but could also be used for civil litigation, it was not difficult to extend the jurisdiction a step further by allowing the ordinary Citizen to allege that the defendant had committed a trespass or other breach of the peace 'and also' that the defendant was under some obligation to the plaintiff, and to treat the allegation concerning breach of the peace as a mere fiction which need not be proved, and to allow the suit to be main tained solely on the basis of the civil obligation. The Latin words 'ac etiam' were the crucial ones in the old complaint that stated the fictitious breach of the peace 'and also' the actual civil obligation." Charles Herman Kinnane, A First Book on AngloAmerican Law 269 (2d ed. 1952). 2. The clause that introduced the real allegation after a fictitious allegation of trespass. -Also termed (in sense 2) ac etiam clause. ACF. abbr. ADMINISTRATION FOR CHILDREN AND FAMILIES. achieve, vb. Hist. To do homage upon the taking of a fee or fief acid-test ratio. See QUICK-ASSET RATIO. acknowledge, vb. (15c) 1. To recognize (something) as being factual or valid <acknowledge the federal court's jurisdiction>. 2. To show that one accepts responsibility for <acknowledge paternity of the child>. 3. To make known the receipt of <acknowledged the plaintiff's letter>. 4. To confirm as genuine before an authorized officer <acknowledged before a notary public>. [Cases: Acknowledgment p 1.]5. (Of a notary public or other officer) to certify as genuine <the notary acknowledged the genuineness ofthe signature>. acknowledged father. See FATHER. acknowledgment. (16c) 1. A recognition of something as being factual. 2. An acceptance of responsibility. 3. The act of making it known that one has received some thing. 4. A formal declaration made in the presence of an authorized officer, such as a notary public, by someone who signs a document and confirms that the signature is authentic. -In most states, the officer certi fies that (1) he or she personally knows the document signer or has established the signer'S identity through satisfactory evidence, (2) the appeared before the officer on the date and in the place (usu. the county) indicated, and (3) the signer acknowledged signing the document freely. Cf. VERIFICATION (1). [Cases: Acknowledgment pl.] "An acknowledgment is a verification of the fact of execu tion, but is not a verification of the contents of the instru ment executed; in other words, an acknowledgment is the method of authenticating an instrument by showing it was the act of the person executing it, while a verification is a sworn statement as to the truth of the facts stated within an instrument." 1 A c.J,S. Acknowledgments 2 (1985). 5. The officer's certificate that is affixed to the document. Also termed (in sense 5) certificate of acknowledgment; (loosely) verification. See PROOF OF ACKNOWLEDGMENT. 6. A father's public recognition of a child as his own. Also termed acknowledgment ofpaternity. formal acknowledgment. 1. A father's recognition of a child as his own by a formal, written declaration that meets a state's requirements for execution, typi cally by signing in the presence of two witnesses . In Louisiana law, this recognition may also be made by a mother. La. Civ. Code art. 203. [Cases: Children Out-of-Wedlock 2. A father's recognition of a child as his own in the child's registry ofbirth or at the child's baptism. -In this sense, a formal acknowl edgment typically occurs when a man signs the birth certificate or baptismal certificate as the father or announces at the baptismal service that he is the father. The fact that a man is named as the father on a certificate ofbirth or baptism is not a formal acknowl edgment unless the father signs the document. informal acknowledgment. A father's recognition ofa child as his own not by a written declaration but by receiving the child into his family or supporting the child and otherwise treating the child as his own off spring. [Cases: Children Out-of-Wedlock acknowledgment money. See LAUDEMIUM. acknowledgment ofdebt. Louisiana law. Recognition by a debtor of the existence ofa debt . An acknowledg 26 acknowledgment of paternity ment of debt interrupts the running ofprescription. [Cases: Limitation of Actions C~140.] acknowledgment ofpaternity. See ACKNOWLEDGMENT (6). ACLU. abbr. (1936) AMERICAN CIVIL LIBERTIES UNION. a confectione (ay k;:m-fek-shee-oh-nee). [Law Latin] From the making. a corifectione praesentium (ay kan-fek-shee-oh-nee pri zen-shee-am). [Law Latin] From the making of the indentures. a consiliis (ay kan-sil-ee-is), n. [Law Latin "of counsel"] See APOCRISARIUS. a contrario sensu (ay k,m-trair-ee-oh sen-s[y]oo), adv. [Law Latin] On the other hand; in the opposite sense. ACP. abbr. ADMINISTRATIVE DOMAIN-NAME CHALLENGE PANEL. ACPA. abbr. 1. ANTICYBERSQUATTING CONSUMER PRO TECTION ACT. 2. ANTICOUNTERFEITING CONSUMER PROTECTION ACT. ACP challenge. Trademarks. An administrative proce dure to settle disputes over Internet domain names, conducted by an Administrative Domain-Name Chal lenge Panel (ACP) under the auspices of the World Intellectual Property Organization and in accordance with the WIPO (Revised) Substantive Guidelines . The guidelines are viewable at http://www.gtld-mou. org/docs/racps.htm. [Cases: Telecommunications 1333.] acquaintance rape. See RAPE. acquest (<I-kwest). See ACQUET. acquet (a-kay or a-kwet), n. [French acquet "acquisition"] (usu. pl.) Civil law. 1. Property acquired by purchase, gift, or any means other than inheritance . The term is most commonly used to denote a marital acquisi tion that is presumed to be community property. Also termed acquets and conquets. [Cases: Husband and Wife (;::::249-260.]2. Property acqUired by either spouse during the marriage. -Also termed acquest. See COMMUNITY PROPERTY. See also ACQUIST. acquets and conquets. See ACQUET (1). acquets and gains (<I-kets). Louisiana law. The assets comprising the community property of spouses who are subject to the Louisiana community-property laws. Often shortened to acquets. [Cases: Husband and Wife acquiesce (ak-wee-es), vb. To accept tacitly or paSSively; to give implied consent to (an act) <in the end, all the partners acquiesced in the settlement>. -acquiescent, adj. acquiescence (ak-wee-es-;mts). (17c) 1. A person's tacit or passive acceptance; implied consent to an act. commercial acquiescence. Patents. Action or inaction by a patentee's competitor that reflects the competi tor's belief that the patent is valid. A patent owner may use another person's actions or inactions, such as taking a license or attempting to design around a patent, as circumstantial evidence ofthe nonobvious ness ofa patented invention or of a patent's validity or enforceability. [Cases: Patents (;::::36.1(1).] 2. Int'llaw. Passivity and inaction on foreign claims that, according to customary international law, usu. call for protest to assert, preserve, or safeguard rights . The result is that binding legal effect is given to silence and inaction. Acquiescence, as a principle of substan tive law, is grounded in the concepts ofgood faith and equity. acquietandis plegiis (a-kwI-a-tan-dis plee-jee-is), n. [Law Latin "for acquitting sureties"] Hist. A writ to force a creditor to discharge a surety when the debt has been satisfied. acquietatus (a-kwI-a-tay-tas), adj. [Law tatin] Hist. Pro nounced not guilty by a jury; acquitted. acquire, vb. To gain possession or control of; to get or obtain. acquired allegiance. See ALLEGIANCE. acquired corporation. See CORPORATION. acquired distinctiveness. See DISTINCTIVENESS. acquired federal land. See LAND. acquired land. See LAND. acquired right. See RIGHT. acquired-rights doctrine. The principle that once a right has vested, it may not be reduced by later legisla tion. The Universal Copyright Convention applies the doctrine to copyright protections, esp. terms, that controlled before the Convention took effect. Also termed doctrine ofacqUired rights. acquired servitude. See SERVITUDE (2). acquired surplus. See SURPLUS. acquirenda, n. pl. [Latin] Hist. Things to be gained by purchase. acquisita et acquirenda (a-kwiz-i-t;) et ak-wa-ren-da). [taw Latin] Scots law. Things acquired and to be acquired . Certain legal actions (such as inhibition) affected both acquired property and property to be acqUired while some actions (such as seizure) affected only property that had already been acquired. acquisition, n. (l4c) 1. The gaining of possession or control over something <acquisition of the target company's assets>. 2. Something acquired <a valuable acquisition>. creeping acquisition. The gradual purchase ofa corpo ration's stock at varying prices on the open market . As a takeover method, a creeping acquisition does not involve a formal tender offer. although the SEC may classify

As a takeover method, a creeping acquisition does not involve a formal tender offer. although the SEC may classify it as such for regulatory purposes. Also termed creeping tender offer. derivative acquisition. An acquisition obtained from another, as by sale or gift. new acquisition. An estate not originating from descent, devise, or gift from the paternal or maternal 27 line of the owner. -For example, an estate acquired from a nonrelative is a new acquisition. See nonances tral estate under ESTATE (1). original acquisition. An acquisition that has never been the property ofanyone such as a copyright owned by an author. acquisition cost. See COST (1). acquisitive offense. See OFFENSE (1). acquisitive prescription. See PRESCRIPTION (5). acquist (~-kwist), n. Hist. The act ofobtaining (a thing); acquisition. _ The idiomatic tendency is to use acquist for the action and acquet for the result. Cf. ACQUET. acquit, vb. (l3c) 1. To clear (a person) of a criminal charge. 2. To payor discharge (a debt or claim). acquittal, n. (15c) 1. The legal certification, usu. by jury verdict, that an accused person is not guilty of the charged offense. acquittal in fact. (l7c) An acquittal by a jury verdict of not guilty. acquittal in law. (17c) An acquittal by operation oflaw, as of someone who has been charged merely as an accessory after the principal has been acquitted. implied acquittal. (1858) An acquittal in which a jury convicts the defendant of a lesser included offense without commenting on the greater offense. -Double jeopardy bars the retrial of a defendant on the higher offense after an implied acquittal. [Cases: Double Jeopardy 0= 100.1.] 2. Contracts. A release or discharge from debt or other liability; ACQUITTANCE. [Cases: Release 0=8.] 3. Hist. The obligation of a middle lord to protect a tenant from a claim, entry, or molestation by a paramount lord arising out of service that the middle lord owes the paramount lord. acquittance, n. (14c) A document by which one is dis charged from a debt or other obligation; a receipt or release indicating payment in full. [Cases: Release <::= 8.] -acquit, vb. acquitted, adj. 1. Judicially discharged from an accusa tion; absolved. 2. Released from a debt. acre. 1. An area ofland measuring 43,560 square feet. Cf. COMMERCIAL ACRE. foot acre. A one-foot -deep layer ofcoal, water, or other material spread over one acre. -This measurement method is used to value coal land for tax purposes. It is also used to measure the volume and capacity of reservoirs. 2. Hist. 1he area ofland that a man with two oxen could plow in one day. _ Beginning in the mid-13th century, this was statutorily limited to an area of 14,520 square feet. acreage-contribution agreement. Oil & gas. A support agreement under which one party promises to grant leases or interest in leases in the area ofa test well to the party who drills the test well in exchange for drilling act or geological information ifthe test well is drilled to a certain depth. See SUPPORT AGREEMENT. [Cases: Mines and Minerals 0=109.] acre-foot. A volume measurement in irrigation, equal to the amount ofwater that will cover one acre ofland in one foot of water (325,850 gallons). acre right. Hist. In New England, a citizen's share in the common lands. -The value of the acre right varied among towns but was fixed in each town. A 10-acre lot in a certain town was equivalent to 113 acres ofupland and 12 acres of meadow, and an exact proportion was maintained between the acre right and salable land. across-the-board, adj. Applying to all classes, categories, or groups <an across-the-board tax cut>. ACRS. abbr. ACCEI~ERATED COST-RECOVERY SYSTEM. act, n. (14c) L Something done or performed, esp. vol untarily; a deed. Also termed action. "'[Alet' or 'action' means a bodily movement whether vol untary or involuntary ...." Model Penal Code 1.13. 2. The process of doing or performing; an occurrence that results from a person's will being exerted on the external world; ACTION (2). -Also termed positive act; act ofcommission. "The term act is one of ambiguous import, being used in various senses of different degrees of generality. When it is said, however, that an act is one of the essential conditions of liability, we use the term in the widest sense of which it is capable. We mean by it any event which is subject to the control of the human will. Such a definition is, indeed, not ultimate, but it is sufficient for the purpose of the law:' John Salmond. jurisprudence 367 (Glanville L. Williams ed., 10th ed. 1947). 'The word 'act' is used throughout the Restatement of this Subject to denote an external manifestation of the actor's will and does not include any of its results, even the most direct, immediate, and intended." Restatement (Second) ofTorts 2 (1965). abstract juridical act. Civil law. A juridical act whose validity may be independent ofthe existence or law fulness of the underlying cause. -In some systems, examples include negotiable instruments, debt remis sion, debt acknowledgment, and the novation ofan obligation. See juridical act. act in pais (in pay). [Law French] An act performed out ofcourt, such as a deed made between two parties on the land being transferred. See IN PAIS. act in the law. (1829) An act that is intended to create, transfer, or extinguish a right and that is effective in law for that purpose; the exercise ofa legal power. -- Also termed juristic act; act ofthe party; legal act. act ofcourt. See JUDICIAL ACT. act ofGod. See ACT OF GOD. act ofltostility. See ACT OF HOSTILITY. act oflaw. See act ofthe law. act ofomission. See negative act. act ofthe law. (17c) The creation, extinction, or transfer ofa right by the operation of the law itself, without any 28 acta diurna consent on the part ofthe persons concerned. Also termed legal act; act aflaw. Cf. LEGAL ACT. act ofthe party. See act in the law. administrative act. (I818) An act made in a manage ment capacity; esp., an act made outside the actor's usual field (as when a judge supervises court per sonnel). An administrative act is often subject to a greater risk ofliability than an act within the actor's usual field. See IMMUNITY (1). bilateral act. (1895) An act that involves the consent ing wills of two or more distinct parties, as with a contract, a conveyance, a mortgage, or a lease; AGREE MENT (1). conversionary act. An act that, unless privileged, makes the actor liable for conversion. external act. (16c) An act involving bodily activity, such as speaking. intentional act. (17c) An act resulting from the actor's will directed to that end . An act is intentional when it is foreseen and desired by the doer, and this fore Sight and desire resulted in the act through the opera tion of the will. internal act. (16c) An act of the mind, such as thinking. judicial act. (16c) An act involving the exercise of judicial power. -Also termed act ofcourt. "The distinction between ajudicial and a legislative act is well defined. The one determines what the law is, and what the rights of parties are, with reference to transactions already had; the other prescribes what the law shall be in future cases arising under it." Union Pacific R.R. v. United States, 99 U.S. 700, 721 (1878) (Field,J.. dissenting). jural act (joor-Jl). (1860) An act taken in the context of or in furtherance of a society's legal system. -Also termed jural activity. "In order to identify an act as a jural act, it must be the kind of act that would be engaged in by someone who is enforcing a law, determining an infraction of the law, making or changing a law, or settling a dispute." Martin P. Golding, Philosophy of Law 23 (1975). juridical act. Civil law. A lawful volitional act intended to have legal consequences. See abstract juridical act. juristic act. See act in the law. legal act. See LEGAL ACT. ministerial act. An act performed without the inde pendent exercise of discretion or judgment.. Ifthe act is mandatory, it is also termed a ministerial duty. See ministerial duty under DUTY (2). negative act. (l7c) The failure to do something that is legally reqUired; a nonoccurrence that involves the breach of a legal duty to take positive action . This takes the form of either a forbearance or an omission. -Also termed act ofomission. negligent act. An act that creates an unreasonable risk of harm to another. predicate act. An act that must be completed before legal consequences can attach to it or to another act or before further action can be taken . In statutes, words such as "if" often precede a description of a predicate act. quasi-judicial act. See QUASI-JUDICIAL ACT. tortious act. An act that subjects the actor to liability under the principles oftort law. unilateral act. (1861) An act in which there is only one party whose will operates, as in a testamentary dis position, the exercise of a power of appointment, or the voidance ofa voidable contract. unintentional act. (1820) An act not resulting from the actor's will toward what actually takes place. verbal act. (18c) 1. An act performed through the medium of words, either spoken or written. 2. Evidence. A statement offered to prove the words themselves because oftheir legal effect (e.g., the terms of a will) . For this purpose, the statement is not considered hearsay. 3. The formal product ofa legislature or other delibera tive body; esp., STATUTE For the various types ofacts, see the subentries under STATUTE. acta diu rna (ak-tJ dl-Jr-nJ). [Latin" daily proceedings"] Roman law. A public register ofthe daily proceedings of the senate, assemblies of the people, or the courts. act and deed. 1. A formally delivered written instru ment that memorializes a bargain or transaction. 2. Hist. Words in a traditional spoken formula used when signing a legal instrument. Immediately after signing, the party would touch the seal and declare, "I deliver this as my act and deed." act and warrant. Scots law. A sheriff's order appointing a trustee in bankruptcy, upon which the trustee assumes office and becomes vested with the bankruptcy estate. acta publica (ak-tJ pab-li-kJ), n. pl. [Latin] Roman & civil law. Things of general knowledge and concern; matters transacted before certain public officers. acte (akt), n. [French] French law. 1. An instrument; a proofin writing, such as a deed, bill of sale, or birth certificate. acte authentique (akt oh-tawn-teek). A deed executed with certain prescribed formalities, in the presence of a notary or other official. acte de deces (akt dJ day-say). A death certificate. acte de francisation (akt dJ frangk-J-za-syawn). A cer tificate confirming that a ship is of French national ity. acte de mariage (akt dJ mar-yahzh). A marriage cer tificate. acte de naissance (akt dJ nay-sJnts). A birth certifi cate. acte de notoriite. A deposition made before a notary to record and preserve a claim, usu. to property . Historically, most actes de notoriete were conducted to establish the identity and genealogy ofa purported heir. The depositions were subject to exclusion as hearsay. But an acte de notoriete may also appear in a 29 actio chain oftitle. See United States v. Repentigny, 72 U.S. 211 (1866). acte extrajudiciaire (akt eks-tr..-zhuu-dee-syair). A document served by a huissier at the request of one party on another party without legal proceedings. See HUISSIER (1). l'acte de l'tUat civil (lakt d<llay-tah see-veel). A public document relating to status (e.g., birth, divorce, death). 2. An act; conduct. acte d'heritier (akt day-ri-tyay). [French "act of an heir"] Conduct by an heir indicating an intent to accept the succession. acting, adj. (I8c) Holding an interim position; serving temporarily <an acting director>. acting charge d'affaires. See CHARGE D'AFFAIRES. acting executor. See EXECUTOR. acting officer. See OFFICER (1). act in pais. See ACT. act in the law. See ACT. actio (ak-shee-oh also ak-tee-oh), n. [Latin] 1. Roman & civil law. An action; a right or claim. 2. A right of action. [Cases: Action ~1.] 3. Hist. At common law, a lawsuit. PI. actiones (ak-shee-oh-neez). actio ad exhib

At common law, a lawsuit. PI. actiones (ak-shee-oh-neez). actio ad exhibendum (ak-shee-oh ad ek-si-ben-d ..m). Roman law. An action to compel a defendant to produce property so as to establish that it is in the defendant's possession. PI. actiones ad exhiben dum. actio aestimatoria (ak-shee-oh es-ti-m ..-tor-ee-..). See DE AESTIMATO. actio arbitraria (ak-shee-oh ahr-bi-trair-ee-J). Roman law. An action in which a judex issued an interlocu tory decree ordering the defendant to do something (such as restoring property to the plaintiff) on pain of a monetary judgment payable to the plaintiff. This action was so called because the judex could assess the damage at a high figure if the defendant failed to comply with the interlocutory order. PI. actiones arbitrariae (ak-shee-oh-neez ahr-bi-trair-ee-I). actio auctoritas (ak-shee-oh awk-tor-i-tas). Roman law. A seller's guarantee against eviction from man cipated land coupled with a promise to pay twice the sale price as damages if the buyer is evicted. The guarantee was implicit in the mancipation process. See MANCIPATION. actio bonaefidei (ak-shee-oh boh-nee {I-dee-I). Roman law. One of a class of actions in which a judge could take equitable considerations into account in render ing a decision. PI. actiones bonae fidei. actio calumniae (ak-shee-oh k ..-lam-nee-ee). Roman law. An action to restrain, or collect damages for, a malicious civil suit. The victim could also pursue criminal charges. PI. actiones calumniae. See CALUMNIA. actio civilis (ak-shee-oh s..-vI-lis). [Latin "a civil action"] Roman law. An action founded on the tra ditional Roman law, rather than the innovations of magistrates. Cf. actio honoraria. PI. actiones civiles. actio commodati (ak-shee-oh kom-a-day-tr). [Latin "action on loan"] Roman law. An action for the recovery ofa thing gratuitously lent but not returned to the lender. Also termed commodati actio. See COMMODATUM. Pi. actiones commodatio actio commodati contraria (ak-shee-oh kom-a-day-tI kJn-trair-ee-J). Roman law. An action by a gratuitous borrower against a lender for extraordinary expenses or damage caused by the lender'S default. PI. actiones commodati contrariae. actio commodati directa (ak-shee-oh kom-a-day-tI di-rek-t..). Roman law. An action by a lender against a borrower for restitution for an item gratuitously lent. PI. actiones commodati directae. actio condictio indebiti (ak-shee-oh kan-dik-shee-oh in-deb-a-tr). See condictio indebiti under CONDICTlO . Strictly speaking, the headword is a solecism, since a condictio is a type ofactio, but this phrase is occa Sionally found in legal literature. PI. actiones condic tio indebiti. actio conducti (ak-shee-oh k ..n-dak-tI). [Latin "action for the thing hired"] An action by the lessee of a thing or the hirer ofanother's services to enforce the contract or claim damages for breach. Also termed actio ex conducto. Cf. actio locatio actio confessoria (ak-shee-oh kon-f ..-sor-ee-..). [Latin "action based on an admission"] 1. See vindicatio servitutis under VINDICATIO. 2. An action in which the defendant admits liability but does not express it in a fixed sum. A judge therefore assesses the damages. actio contraria (ak-shee-oh k ..n-trair-ee- ..). Roman law. A counterclaim. Cf. actio directa. Pi. actio con traria. actio criminalis (ak-shee-oh kri-md-nay-lis). Roman law. A criminal action. PI. actiones criminales. actio damni injuria (ak-shee-oh dam-nI in-joor-ee-a). Roman law. An action for damages for tortiously causing pecuniary loss. See actio legis Aquiliae. PI. actiones damni injuriae. actio de communi dividundo (ak-shee-oh dee b-myoo-m di-vi-dan-doh). [Latin "for dividing a thing held in common"] Roman & civil law. An action to partition common property. -Sometimes short ened to de communi dividundo. See ADJuDICATIO. PI. actiones de communi dividundo. actio de dolo malo (ak-shee-oh dee doh-loh mal-oh). Roman law. An action offraud. This type ofaction was widely applied in cases involVing deceitful conduct. Also termed actio doli. PI. actiones de dolo malo. 30 actio actio de in rem verso (ak-shee-oh dee in rem var soh). See action de in rem verso under ACTION (4). PI. actiones de in rem verso. actio de pauperie (ak-shee-oh dee paw-par-eel. Roman law. An action for harm done by a domestic four legged animal. The owner could either pay for the damage or surrender the animal to the injured party. Justinian extended this action to include wild animals in some circumstances. See PAUPERIES. actio de peculio (ak-shee-oh dee pa-kyoo-Iee-oh). Roman law. An action against a paterfamilias or slave owner concerning the value of the child's or slave'S separate funds (peculium). PI. actiones de peculio. actio de pecunia constituta (ak-shee-oh dee pa-kyoo nee-a kon-sti-t[y]oo-ta). Roman law. An action on a promise to pay a preexisting debt. PI. actiones de pecunia constituta. actio depositi contraria (ak-shee-oh di-poz-a-tI kan trair-ee-a). Roman law. An action that a depositary has against the depositor for unpaid expenses. PI. actiones depositi contrariae. actio depositi directa (ak-shee-oh di-poz-a-tI di-rek-ta). Roman law. An action that a depositor has against a depositary for the return of the deposited item. PI. actiones depositi directae. actio de tigno juncto (ak-shee-oh dee tig-noh jangk toh). [Latin "action for joining timber"] Roman law. An action by the owner of material incorporated without payment into the defendant's building. It was akin to a theft action. The plaintiff could recover up to twice the value of the material. PI. actiones de tigno juncto. actio directa (ak-shee-oh di-rek-ta). Roman law. 1. An action founded on strict law and conducted accord ing to fixed forms; an action based on clearly defined obligations actionable at law based on a statute or a praetor's edict. 2. A direct action, as opposed to a counterclaim (actio contraria). Cf. actio in factum; actio uti/is. PI. actiones directae. actio doli (ak-shee-oh doh-h). See actio de dolo malo. actio empti (ak-shee-oh emp-tI). Roman law. An action by a buyer to compel a seller to deliver the item sold or for damages for breach ofcontract. -Also termed actio ex empto. PI. actiones emptio actio ex conducto (ak-shee-oh eks kan-dak-toh). See actio conductio PI. actiones ex conducto. actio ex contractu (ak-shee-oh eks bn-trak-t[y]oo). Roman law. An action arising out of a contract. This term had a similar meaning at common law. PI. actiones ex contractu. actio ex delicto (ak-shee-oh eks da-lik-toh). Roman law. An action founded on a tort. PI. actiones ex delicto. actio ex empto (ak-shee-oh eks emp-toh). See actio emptio actio exercitoria (ak-shee-oh eg-zar-si-tor-ee-a). Roman law. An action against the owner or lessee (exercitor) of a vessel, esp. for contracts made by the master. PI. actiones exercitoriae. actio ex locato (ak-shee-oh eks loh-kay-toh). See actio locatio actio ex stipulatu (ak-shee-oh eks stip-ya-lay-t[y]oo). Roman law. An action brought to enforce a stipulatio. See STIPULATION (3). actio ex vendito (ak-shee-oh eks ven-da-toh). See actio venditio actio familiae erciscundae (ak-shee-oh fa-mil-ee-ee ar-sis-kan-dee). [Latin "action to divide an estate"] An action for the partition ofthe inheritance among heirs. -Sometimes shortened to fami/iae erciscun dae. See ADJUDICATIO. actio finium regundorum (ak-shee-oh fI-nee-am ri-gan-dor-am). [Latin "action for regulation of boundaries"] Roman law. An action among neighbor ing proprietors to fix or to preserve property bound aries. See ADJUDICATIO. actio furti (ak-shee-oh far-tIl. Roman law. An action by which the owner ofstolen goods can, according to the circumstances, recover a multiple of their value from the thiefby way of penalty, without prejudice to a further action to recover the goods themselves or their value. Seefurtum manifestum under FURTUM. actio honoraria (ak-shee-oh [h]on-a-rair-ee-a). PI. actiones honorariae. See ACTIONES HONORARIAE. actio hypothecaria (ak-shee-oh hI-poth-a-kair-ee-a). See HYPOTHECARIA ACTIO. actio in factum (ak-shee-oh in fak-tam). Roman law. An action granted by the praetor when no standard action was available . The closest Anglo-American equivalent is action on the case or trespass on the case. See trespass on the case under TRESPASS. Cf. actio directa; actio uti/is. actio injuriarum (ak-shee-oh in-juur-ee-ahr-am). Roman law. An action that lay against anyone who had attacked the body, reputation, or dignity of any person. -Also spelled actio iniuriarum. PI. actiones injuriarum (ak-shee-oh-neez in-juur-ee-ahr-am). actio in personam (ak-shee-oh in par-soh-nam). PI. actiones in personam. See action in personam under ACTION (4). actio in rem (ak-shee-oh in rem). PI. actiones in rem. 1. See action in rem UNDER ACTION (4). 2. See real action under ACTION (4). actio institoria (ak-shee-oh in-sti-tor-ee-a). [Latin] Roman law. An action against a principal by one who contracted with the principal's business agent, limited to matters arising out of the business. See INSTITOR. actio judicati (ak-shee-oh joo-di-kay-tI). Roman law. An action to enforce a judgment by execution on the defendant's property. PI. actiones judicatio actio legis (ak-shee-oh lee-jis). See LEGIS ACTIO. actio legis Aquiliae (ak-shee-oh lee-jis a-kwil-ee-ee). Roman law. An action under the Aquilian law; specif., 31 an action to recover for loss caused by intentional or negligent damage to another's property. Also termed actio damni injuria; actio damni injuria dati. See LEX AQUILlA. actio locati (ak-shee-oh 10h-kay-tI). [Latin "action for what has been hired out"] Roman law. An action that a lessor (the locator) of a thing might have against the hirer, or an employer against a contractor. Also termed actio ex locato (ak-shee-oh eks loh-kay-toh). Cf. actio conductio actio mandati (ak-shee-oh man-day-tr). 1. Civil law. An action to enforce a contract for gratuitous services or remuneration. 2. Hist. An action to enforce a contract for gratuitous services. See MANDATUM. PI. actiones mandati. actio mixta (ak-shee-oh mik-sta). Roman law. A mixed action; an action in which two or more features are combined, as an action for damages and for a penalty, or an action in rem and in personam. PI. actiones mixta (ak-shee-oh-neez mik-st<l). actio negatoria (ak-shee-oh neg-a-tor-ee-a). Roman law. An action brought by a landowner against anyone claiming to exercise a servitude over the landowner's property. Also termed actio negativa. PI. actiones negatoriae. actio negotiorum gestorum (ak-shee-oh na-goh-shee or-am jes-tor-am). Roman law. An action against a gestor for the mismanagement of the principal's property, or for any acquis

-am). Roman law. An action against a gestor for the mismanagement of the principal's property, or for any acquisitions made in the course of management. The gestor could bring a counter action to recover management-related expenses (actio contraria negotiorum gestorum). See NEGOTIORUM GESTOR. PI. actiones negotiorum gestorum. actio non accrevit infra sex annos (ak-shee-oh non a-kree-vit seks an-ohs). [Latin "the action did not accrue within six years"] Hist. A plea to the statute of limitations by which the defendant asserts that the plaintiff's cause of action has not accrued within the last six years. PI. actiones non accreverant infra sex annos. actio non ulterius (ak-shee-oh non <ll-teer-ee-as). [Latin "an action no further"] Hist. The distinctive clause in a plea to abate further maintenance of the action. This plea replaced the puis darrein continu ance. Cf. plea to further maintenance to the action, plea puis darrein continuance under PLEA. PI. actiones non ulterii. actio Pauliana (ak-shee-oh paw-Iee-ay-na). [Latin "action attributed to Paul" or "Paulian action"] An action to rescind a transaction (such as alienation of property) that an insolvent debtor made to deceive the debtor's creditors . This action was brought against the debtor or the third party who benefited from the transaction. Pi. actiones Paulianae. "[Ajctio Pauliana, a name which has been shewn to be inserted by a glossator, after the first publication of the Digest. It lay where the debtor had impoverished himself to the detriment of his creditors, e.g. by alienations, by incurring liabilities or allowing rights to lapse, but not for actio failing to acquire or for paying just debts .... It lay against the debtor, who might have since acquired property .... But its chief field was against acquirers privy to the fraud, or even innocent, if the acquisition was gratuitous." w.w. Buckland, A Text-Book of Roman Law from Augustus to Justinian 596 (Peter Stein ed., 3d ed. 1963). actio perpetua (ak-shee-oh p<lr-pech-oo-a). Roman law. An action that is not required to be brought within a specified time. PI. actiones perpetuae. Cf. actio temporalis. actio personalis (ak-shee-oh p<lr-sd-nay-lis). Roman law. A personal action. PI. actiones personales. actio pigneratitia (ak-shee-oh pig-na-ra-tish-ee-a). Roman law. An action of pledge; an action founded on a contract of pledge. -Also spelled actio pignera ticia; actio pignoratitia. -Also termed pigneratitia actio. See PIGNUS. PI. actiones pignoratitiae. actio poenalis (ak-shee-oh pi-nay-lis). Roman law. An action in which the plaintiff sued for a penalty rather than compensation. Cf. actio rei persecutoria. PI. actiones poenales (ak-shee-oh-neez pi-nay-Ieez). actio popularis (ak-shee-oh pop-ya-Iair-is). [Latin "popular action"] Roman law. An action that a male member of the general public could bring in the interest of the public welfare. PI. actiones populares (ak-shee-oh-neez pop-ya-Iair-eez). "Actiones populares. Actions which can be brought by 'any one among the people: ... They are of praetorian origin and serve to protect public interest .... They are penal, and in case of condemnation of the offender the plaintiff receives the penalty paid .... There are instances, however, established in statutes or local ordinances, in which the penalty was paid to the state or municipal treasury, or divided between the aerarium and the accuser, as, e.g., provided in a decree of the Senate in the case of damage to aqueducts." Adolf Berger, Encyclopedic Dictionary ofRoman Law 347 (1953). actio praejudicialis (ak-shee-oh pree-joo-dish-ee ay-lis). Roman law. A preliminary action; an action begun to determine a preliminary matter on which other litigated matters depend. PI. actiones praeju diciales. actio praetoria (ak-shee-oh pri-tor-ee-a). Roman law. A praetorian action; one introduced by a praetor rather than founded on a statute. PL actiones prae toriae (ak-shee-oh-neez pri-tor-ee-I). actio pro socio (ak-shee-oh proh soh-shee-oh). Roman law. An action brought by one partner against another. See SOCIETAS. PL actiones pro socio. actio Publiciana (ak-shee-oh pd-blish-ee-ay-na). Roman law. An action allowing a person who had acquired bonitary ownership of land to recover it from a third party, so that the person would in due course acquire full title by prescription . lhis action is named for Publici us, who might have been the first praetor to grant the action. -Also termed actio Pub liciana in rem. See bonitary ownership under OWN ERSHIP. actio quanti minoris (ak-shee-oh kwon-tI mi-nor-is). [Latin "an action for the shortfall in value"] Roman & 32 action civil law. A purchaser's action to recover for his over payment for a defective item. Cf. actio redhibitoria. PI. actiones quanti minoris. "If a defect appeared which had not been so declared the buyer, if he sued within six months, could claim rescission of the sale by the actio redhlbltoria, and, if within twelve months, could claim the difference between the price paid and the actual value of the defective slave or animal by the actio quanri minoris. In both actions the knowledge or ignorance of the seller was irrelevant: liability was strict." Barry Nicholas, An Introduction to Roman Law 181 (1962). actio quod jussu (ak-shee-oh kwod j3S-[yjoo). Roman law. An action against a paterfamilias or a slave owner for enforcement of a debt contracted on behalf ofthe paterfamilias or slaveowner by a son or a slave. actio quod metus causa (ak-shee-oh kwod mee-tds kaw-zi'l). Roman law. An action to penalize someone who wrongfully compelled the plaintiff to transfer property or to assume an obligation. The plaintiff could obtain damages of four times the value of the loss suffered. PI. actiones quod metus causa. actio realis (ak-shee-oh ree-ay-lis). [Law Latin] Hist. A real action. See real action under ACTION (4). PI. actiones reales. actio redhibitoria (ak-shee-oh red-i-bi-tor-ee-i'l). Roman & civil law. An action for restoration to cancel a sale because of defects in the thing sold. Cf. actio quanti minoris. PI. actiones redhibitoriae. actio rei persecutoria (ak-shee-oh ree-I pdr-si-kyoo tor-ee-d). [Law Latin "an action for pursuing a thing"] Roman law. An action to recover a specific thing or monetary compensation, rather than a penalty. Cf. actio poena lis. PI. actiones rei persecutoriae (ak-shee oh-neez ree-I pJr-si-kyoo-tor-ee-I). actio rerum amotarum (ak-shee-oh reer-dm am-i'l tair-dm). Roman law. An action to recover items stolen by a spouse shortly before a divorce. PI. actiones rerum amotarum. actio rescissoria (ak-shee-oh re-si-sor-ee-d). Roman law. An action to restore to the plaintiff property lost by prescription . This action was available to minors and other persons exempt from prescriptive claims against their property. PI. actiones rescissoriae. actio serviana (ak-shee-oh si'lr-vee-ay-m). Roman law. An action by which a lessor could seize, in satisfaction of unpaid rent, the lessee's personal property brought onto the leased premises. PI. actiones servianae. actio servi corrupti (ak-shee-oh Sdr-VI b-r;:lp-tr). [Latin] Roman law. An action for corrupting a slave or servant. Since the "corruption" could take the form of bribery to find out the master's confiden tial business in'formation, one scholar suggested in a famous article that it could be the precursor of the modern law oftrade secrets. A. Arthur Schiller, Trade Secrets and the Roman Law: The Actio Servi Corrupti, 30 Colum. L. Rev. 837 (1930). Other scholars strongly disagree (see quotation). "The actio servi corrupti presumably or possibly could be used to protect trade secrets and other similar commercial interests. That was not its purpose and was, at most, an incidental spinoff. But there is not the slightest evidence that the action was ever so used." Alan Watson, Trade Secrets and Roman Law: The Myth Exploded, 11 Tul. Eur. & (iv. L.F. 19 (1996). actio stricti juris (ak-shee-oh strik-tr joor-is). Roman law. A class of personal actions enforceable exactly as stated in the formula without taking equitable consid erations into account; an action ofstrict right. This type ofaction was often used to recover a definite sum of money or a particular object that was the subject ofa formal promise (stipulatio). See FORMULA (1). PI. actiones stricti juris. actio temporalis (ak-shee-oh tem-pJ-ray-lis). Roman & civil law. An action that must be brought within a specified time. Cf. actio perpetua. PI. actiones tem porales. actio tutelae (ak-shee-oh t[yloo-tee-Iee). Roman law. An action arising from a breach of the duty owed by a guardian (tutor) to the ward, such as mismanagement of the ward's property. PI. actiones tutelae. actio uti/is (ak-shee-oh yoo-td-lis). Roman law. An extension ofa direct action, founded on utility rather than strict right, available esp. to persons having an interest in property less than ownership. This type ofaction was modeled after the actio directa. Cf. actio directa; actio in factum. PI. actiones utiles. actio venditi (ak-shee-oh ven-dd-tr). Roman law. An action by which a seller could obtain his price or enforce a contract of sale. Also termed actio ex vendito. PI. actiones venditio actio vi bonorum raptorum (ak-shee-oh VI bd-nor-dm rap-tor-dm). Roman law. A penal action to recover goods taken by force . A successful plaintiff would also receive three times the value of the taken property. Cf. INTERDICTUM QUOD VI AUT CLAM. actio vulgaris (ak-shee-oh vi'll-gair-is). Hist. An ordinary action, as opposed to one granted in special circumstances. PI. actiones vulgares. legis actio. See LEGIS ACTIO. action. (14c) 1. The process ofdoing something; conduct or behavior. 2. A thing done; ACT (2). 3. Patents. OFFICE ACTION. advisory action. Patents. See advisory office action under OFFICE ACTION. 4. A civil or criminal judicial proceeding. Also termed action at law. [Cases: Action "An action has been defined to be an ordinary proceed ing in a court of justice. by which one party prosecutes another party for the enforcement or protection of a right. the redress or prevention of a wrong, or the punishment of a public offense. But in some sense this definition is equally applicable to special proceedings. More accurately, it is defined to be any judicial proceeding, which. if conducted to a determination. will result in ajudgment or decree. The action is said to terminate at judgment." 1 Morris M. Esree's Pleadings, Practice. and Forms 3, at 1 (Carter Pomeroy ed., 3d ed. 1885). "The terms 'action' and 'suit' are nearly if not quite synony mous. But lawyers usually speak of proceedings in courts of 33 law as 'actions,' and of those in courts of equity as 'suits.' in olden time there was a more marked distinction, for an action was considered as terminating whenjudgmentwas rendered, the execution forming no part of it. A suit, on the other hand, included the execution. The word 'suit,' as used in the Judiciary Act of 1784 and later Federal statutes, applies to any proceeding in a court ofjustice in which the plaintiff pursues in such court the remedy which the law affords him." Edwin E. Bryant, The Law of Pleading Under the Codes ofCivil Procedure 3 (2d ed. 1899). "'Action' in the sense of a judicial proceeding includes recoupment, counterclaim, set-off, suit in equity, and any other proceedings in which rights are determined: UCC 1-201(1). action at law. A civil suit stating a legal cause ofaction and seeking only a legal remedy. See suit at law and suit in equity under SUIT. [Cases: Action C:)21.] action de die in diem (dee dI-ee in dI-em). [Law Latin "from day to day"] Hist. 1. An action occurring from day to day; a continuing right ofaction. 2. An action for trespass for each day that an injury

occurring from day to day; a continuing right ofaction. 2. An action for trespass for each day that an injury continues. "That trespass by way of personal entry is a continuing injury, lasting as long as the personal presence of the wrongdoer, and giving rise to actions de die in diem so long as it lasts, is sufficiently obvious." R.F.V. Heuston, Salmond on the Law of Torts 42 (17th ed. 1977). action de in rem verso (dee in rem var-soh). [Latin "action for money applied to (the defendant's) advan tage"] 1. Roman & civil law. An action for unjust enrichment, in which the plaintiff must show that an enrichment was bestowed, that the enrichment caused an impoverishment, that there is no justifi cation for the enrichment and impoverishment, and that the plaintilfhas no other adequate remedy at law, including no remedy under an express or implied contract. 2. Roman law. An action brought against a paterfamilias or a slaveowner who benefited from the transaction ofa child or slave. Also termed (in both senses) actio de in rem verso. action en declaration de simulation. Louisiana law. An action to void a contract. See simulated contract under CONTRACT. action ex contractu (eks k~n-trak-t[y]oo). A personal action arising out of a contract. [Cases; Action C-=-, 27.J "Actions ex contractu were somewhat illogically classified thus: covenant, debt, assumpsit, detinue, and account. The action ofcovenant lay where the party claimed damages for a breach of contract or promise under seal. The writ ofdebt lay for the recovery of a debt; that is, a liquidated or certain sum of money alleged to be due from defendant to plaintiff. The writ ofdetinue was the ancient remedy where the plain tiff claimed the specific recovery of goods, chattels, deeds, or writings detained from him. This remedy fell into disuse by reason of the unsatisfactory mode of trial of 'wager of law,' which the defendant could claim; and recourse was had to the action of replevin. In the American States an action of replevin founded upon statute provisions is almost universally the remedy for the recovery of specific personal property." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 5 (2d ed. 1899). action ex delicto (eks d<l-lik-toh). A personal action arising out ofa tort. [Cases: Action C=::27.J action "The actions ex delicto were originally the action of trespass and the action of replevin." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 5 (2d ed. 1899). action for money had and received. At common law, an action by which the plaintiff could recover money paid to the defendant, the money usu. being recover able because (1) the money had been paid by mistake or under compulsion, or (2) the consideration was insufficient. [Cases: Implied and Constructive Con tracts C=::10-25.] "The action for money had and received lay to recover money which the plaintiff had paid to the defendant, on the ground that it had been paid under a mistake or com pulsion, or for a consideration which had wholly failed. By this action the plaintiff could also recover money which the defendant had received from a third party, as when he was accountable or had attorned to the plaintiff in respect of the money, or the money formed part of the fruits of an office of the plaintiff which the defendant had usurped." Robert Goff & Gareth Jones, The Law of Restitution 3 (3d ed.1986). action for money paid. At common law, an action by which the plaintiff could recover money paid to a third party -not to the defendant in circum stances in which the defendant had benefited. [Cases: Implied and Constructive Contracts 'The action for money paid was the appropriate action when the plaintiff's claim was in respect of money paid, not to the defendant, but to a third party, from which the defendant had derived a benefit. Historically, the plaintiff had to show that the payment was made at the defendant's request; but we shall see that the law was prepared to 'imply' such a request on certain occasions, in particular where the payment was made under compulsion of law or, in limited circumstances, in the course of intervention in an emergency on the defendant'S behalf, which in this book we shall call necessitous intervention." Robert Goff & Gareth Jones, The Law of Restitution 3 (3d ed. 1986). actionfor poinding. Hist. A creditor'S action to obtain sequestration of the land rents and goods of the debtor to satisfy the debt or enforce a distress. action for the loss ofservices. Hist. A husband's lawsuit against one who has taken away, imprisoned, or phys ically harmed his wife in circumstances in which (1) the act is wrongful to the wife, and (2) the husband is deprived ofher society or services. [Cases: Husband and Wife C=209(3).] action for the recovery ofland. See EJECTMENT. action in equity. (ISc) An action that seeks eqUitable relief, such as an injunction or specific performance, as opposed to damages. See suit in equity under SUIT. [Cases: Action C=::21.J action in personam (in p<lr-soh-nam). (1800) 1. An action brought against a person rather than property. An in personam judgment is binding on the judgment-debtor and can be enforced against all the property of the judgment-debtor. 2. An action in which the named defendant is a natural or legal person. -Also termed personal action; (in Roman and civil law) actio in personam; actio personalis, See IN PERSONAM. [Cases: Action ~'-:> 16.] Pi. actiones in personam; actiones personates. 34 action action in rem (in rem). (l8c) 1. An action determining the title to property and the rights of the parties, not merely among themselves, but also against all persons at any time claiming an interest in that property; a real action. [Cases: Action G=' 16.] 2. Louisiana law. An action brought for the protection ofpossession, own ership, or other real rights in immovable property. La. Civ. Code arts. 3651 et seq. 3. Louisiana law. An action for the recovery ofpossession ofimmovable property. La. Civ. Code art. 526. -Also termed (in Roman law) actio in rem; actio realis; real action. See IN REM. PI. actiones in rem. 4. An action in which the named defendant is real or personal property. action ofaccount. See ACCOUNTING (3). action ofassize. Hist. A real action by which the plain tiff proves title to land merely by showing an ances tor's possession. See ASSIZE. action ofbook debt. See ACCOUNTING (4). action ofdebt. See CONDITIO. action ofdeclarator. Scots law. An action brought in the Court ofSession for the purpose ofestablishing a legal status or right. -Also termed declarator; action for declaratory. action ofejectment. See EJECTMENT (3). action ofrepro bator. See REPROBATOR. action on account. See ACCOUNTING (4). action on expenditure. An action for payment of the principal debt by a personal surety. action on the case. See trespass on the case under TRESPASS. action per quod servitium amisit (pdr kwod sdr-vish ee-dm d-mI-sit). [Latin] Hist. An action for the loss of a servant's services. action quasi in rem (kway-sI in rem or kway-zI). (1883) An action brought against the defendant personally, with jurisdiction based on an interest in property, the objective being to deal with the particular property or to subject the property to the discharge of the claims asserted. See quasi in rem under IN REM. [Cases: Action G='16.] action to quiet title. (1837) A proceeding to establish a plaintiff's title to land by compelling the adverse claimant to establish a claim or be forever estopped from asserting it. -Also termed quiet-title action. [Cases: Quieting Title ~1.] action to review judgment. Rare. 1. MOTION FOR NEW TRIAL. 2. A request for judicial review ofa nonjudicial body's decision, such as an administrative ruling on a workers'-compensation claim . The grounds for review are usu. similar to those for a new trial, esp. patent errors oflaw and new evidence. amicable action. See test case (1) under CASE. civil action. (16c) An action brought to enforce, redress, or protect a private or civil right; a noncriminallitiga tion. -Also termed (if brought by a private person) private action; (if brought by a government) public action. [Cases: Action G=' 1.] "The code of New York, as originally adopted, declared, 'the distinctions between actions at law and suits in equity, and the forms of all such actions and heretofore existing, are abolished; and there shall be in this State hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.' With slight verbal changes the above provision has been enacted in most of the States and Territories which have adopted the reformed procedure." Edwin E. Bryant, The Law ofPleading Under the Codes ofCivil Procedure 106 (2d ed. 1899). class action. See CLASS ACTION. collusive action. (18c) An action between two parties who have no actual controversy, being merely for the purpose ofdetermining a legal question or receiving a precedent that might prove favorable in related litiga tion. -Also termed fictional action. [Cases: Action ~8.] common-law action. An action governed by common law, rather than statutory, equitable, or civil law. [Cases: Action ~21.] criminal action. (16c) An action instituted by the gov ernment to punish offenses against the public. [Cases: Action ~18.] cross-action. An action brought by the defendant against the plaintiff based on the same subject matter as the plaintiff's action. See CROSS-CLAIM. [Cases: Federal Civil Procedure ~786; Pleading G=' l38, 148.] derivative action. See DERIVATIVE ACTION. direct action. See DIRECT ACTION. fictional action. See collusive action. fictitious action. An action, usu. unethical, brought solely to obtain a judicial opinion on an issue of fact or law, rather than for the disposition ofa controversy. [Cases: Action ~8.] Good Samaritan action. See GOOD SAMARITAN ACTION. hypothecary action (hI-poth-d-ker-ee). Roman & civil law. An action for the enforcement of a mortgage (hypotheca); a lawsuit to enforce a creditor's claims under a hypothec or hypothecation. -Also termed actio hypothecaria. innominate action (i-nom-i-lldt). An action that has no special name by which it is known. Cf. nominate action. joint action. 1. An action brought by two or more plaintiffs. 2. An action brought against two or more defendants. [Cases: Action ~50(4.1).] local action. An action that can be brought only in the jurisdiction where the cause ofaction arose, as when the action's subject matter is a piece of real property. [Cases: Courts ~7.] matrimonial action. An action relating to the state of marriage, such as an action for separation, annul 5 action ment, or divorce. [Cases: Divorce ~1; Marriage ~ 57.] mixed action. An action that has some characteristics of both a real action and a personal action. [Cases: Action ~30.] "In early times the only mixed actions were those for the partition of lands, for which a writ was provided in the common-law courts. The remedy was further enlarged by the statute of 31 Hen. VII c. 1, and 32 Hen. VIII c. 32, which gave compulsory partition, by writ at common law. These statutes formed the basis of partition in the American States; but in England and here courts of Chancery have been found most convenient, and their procedure most favorable for the division of estates in land. The statutes at the present time, in most of the States, prescribe a pro cedure which is quite Similar to that in equity practice." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 10-11 (2d ed. 1899). nominate action (nom-i-nClt). An action that is known by a name, such as a confessory action, a petitory action, or a possessory action. Cf. innomi nate action. nonpersonal action. An action that proceeds within some category of territorial jurisdiction other than in personam -that is, jurisdiction in rem, quasi in rem, or over status. penal action. (16c) 1. A criminal prosecution. [Cases: Action ~lB.] 2. A civil proceeding in which either the state or a common informer sues to recover a penalty from a defendant who has violated a statute. Although civil in nature, a penal action resembles a criminal proceeding because the result ofa success ful action is a monetary penalty intended, like a fine, to punish the defendant. See COMMON INFORMER. [Cases: Action ~19.] "At one time it was a frequent practice, when it was desired to repress some type of conduct thought to be harmful, to do so by the machinery of the civil rather than of the criminal law. The means so chosen was called a penal action, as being brought for the recovery of a penalty; and it might be brought, according to the word

chosen was called a penal action, as being brought for the recovery of a penalty; and it might be brought, according to the wording of the particular statute creating the penal action, either by the Attorney-General on behalf of the state, or by a common informer on his own account. A common informer was anyone who should first sue the offender for the penalty. Penal actions are still possible in a few cases, and their existence renders invalid several suggested distinctions between civil wrongs and crimes." John Salmond, Jurispru dence 107 (Glanville L. Williams ed., 10th ed. 1947). "For in 'penal actions,' unless the statute expressly autho rizes private persons to act as informers, the State alone can sue and recover the penalty; and yet there is full authority for ranking such suits by it as merely civil pro ceedings." J.w. Cecil Turner, Kenny's Outlines of Criminal Law 538 (16th ed. 1952). 3. A civil lawsuit by an aggrieved party seeking recovery of a statutory fine or a penalty, such as punitive damages. [Cases: Action ~19.] "[Tlhere exists a well-known class of proceedings called 'penal actions,' by which pecuniary penalties can be recovered -in some cases by any person who will sue for them -from the doers of various prohibited acts; these acts being thus prohibited, and visited with penal ties, solely on account of their tendency to cause evil to the community at large, 'considered as a community.' For example, a person who, in advertising a reward for the return of lost property, adds that 'no questions will be asked' incurs by the Larceny Act, 1861, a penalty of 50 recoverable by anyone who will sue for it."J.w. Cecil Turner, Kenny's Outlines ofCriminal Law 533-34 (16th ed. 1952). personal action. (l7c) 1. An action brought for the recovery of debts, personal property, or damages arising from any cause. -Also termed remedial action. [Cases: Action ~30.] "Personal actions are subdiVided into those brought for the recovery of a debt or of damages for the breach of a contract, or for tort, for some injury to the person or to relative rights or to personal or real property. The most common of these actions are debt, covenant, assump sit, detinue, trespass, trespass on the case, trover, and replevin." Benjamin J. Shipman, Handbook ofCommonLaw Pleading 34, at 65 (Henry Winthrop Ballantine ed., 3d ed. 1923). 2. See action in personam. petitory action (pet-Cl-tor-ee). (17c) 1. Roman & civil law. An action to establish and enforce title to property independently of the right to possession. 2. Civil law. An action for the recognition of owner ship or other real right in immovable (or sometimes movable) property . In civil-law systems, the petitory action (revendication) is a much broader and more effective remedy than the rei-vindicatio, the Roman prototype. This action is based on, and tends to protect, real rights, that is, ownership and its dismem berments. It is therefore a real action, distinguish able from personal actions based on (and tending to protect) personal rights. Generally, the petitory action is available for the protection of the ownership of both movables and immovables. In Louisiana, however, the petitory action is for the recognition of ownership or other real right in immovable property, brought by a person who is not in possession of it. La. Code Civ. Proc. art. 3651. An action for the recognition of such a right in movable property is an innominate real action, known as a revendicatory action. -Also termed petitory suit; petitorium; revendication. [Cases: Real Actions ~6.] plenary action (plee-nCl-ree or plen-). (IB37) A full hearing or trial on the merits, as opposed to a summary proceeding. Cf. summary proceeding under PROCEEDING. possessory action (pCl-zes-Cl-ree). (17c) 1. An action to obtain, recover, or maintain possession of property but not title to it, such as an action to evict a non paying tenant. -Also termed possessorium. [Cases: Ejectment ~17; Replevin ~1.] ''The possessory action is available for the protection of the possession of corporeal immovables as well as for the protection of the quasi-possession or real rights in immov able property. It is distinguished from the petitory action which is available for the recognition and enforcement of ownership or of real rights in another's immovable, such as a usufruct, limited personal serVitudes, and predial servitudes." A.N. Yiannopoulos, Civil Law Property 333, at 653 (4th ed. 2001). 2. Maritime law. An action brought to recover pos session ofa ship under a claim oftitle. [Cases: Admi ralty~B.] 36 Action private action. See civil action. public action. See civil action. real action. (16c) 1. An action brought for the recovery ofland or other real property; specif., an action to recover the possession of a freehold estate in real property, or seisin. 2. Civil law. An action based on, and tending to protect, a real right, namely, the right ofownership and its dismemberments . It is distin guishable from a personal action, which is based on (and tends to protect) a personal right. 3. Louisiana law. An action brought for the protection of posses sion, ownership, or other real rights in immovable property. La. Code Civ. Proc. arts. 3651 Also termed action in rem; actio in rem; actio realis. See SEISIN. [Cases: Real Actions (:::::> 1-6.] "If the question be asked why it was that a large part of the really English law which Bracton undertook to expound is found in connection with the subject of real actions, while in Blackstone's treatise only the personal actions are deemed worthy of attention, the answer must be that the former were dying out. When Chitty wrote (1808) the old real actions were practically obsolete, and in the succeed ing generation such vestiges of them as remained were abolished by statute." Hannis Taylor, The Science ofJuris prudence 574 (l 908). "The principal real actions formerly in use were (1) the writs of right; (2) the writs of entry; (3) the possessory assizes, such as novel disseisin and mort d'ancestor. Real actions are those in which the demandant seeks to recover seisin from one called a tenant. because he holds the land. They are real actions at common law because the judgment is in rem and awards the seisin or possession." Benjamin J. Shipman, Handbook ofCommonLaw Pleading 32, at 63 (Henry Winthrop Ballantine ed., 3d ed. 1923). redhibitory action. Civil law. An action brought to void a sale of a thing having a defect that renders it either useless or so flawed that the buyer would not have bought it in the first place. See REDHIBITION. [Cases: Sales (;::;) 130; Vendor and Purchaser 123.] remedial action. 1. See REMEDIAL ACTION. 2. See personal action (1). representative action. 1. See CLASS ACTION. 2. See DERIVATIVE ACTION (1). rescissory action. Scots law. An action to set aside a deed. revendicatoryaction (ree-ven-di-k;:Hor-ee). See petitory action. separate action. (I8c) 1. An action brought alone by each ofseveral complainants who are all involved in the same transaction but either cannot legally join the suit or, not being required to join, choose not to join it. 2. One of several distinct actions brought by a Single plaintiff against each oftwo or more parties who are all liable to a plaintiff with respect to the same subject matter. -Also termed several action. several action. See separate action. sham action. An objectively baseless lawsuit the primary purpose of which is to hinder or interfere with a competitor's business relationships. See Profes sional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49,113 S.Ct. 1920 (1993). -Also termed sham lawsuit; sham suit. See SHAM EXCEP TION. [Cases: Antitrust and Trade Regulation 905(3).] statutory action. An action governed by statutory law rather than equitable, civil, or common law. [Cases: Action (:::::> 3.] test action. See test case (2) under CASE. third-party action. (I872) An action brought as part of a lawsuit already pending but distinct from the main claim, whereby a defendant sues an entity not sued by the plaintiff when that entity may be liable to the defendant for all or part of the plaintiff's claim . A common example is an action for indemnity or con tribution. [Cases: Federal Civil Procedure (,'::::> 281; Parties (:::::>50.] transitory action. An action that can be brought in any venue where the defendant can be personally served with process. [Cases: Venue (;::;)4.] "Transitory actions are universally founded on the supposed violation of rights which, in contemplation of law, have no locality. They are personal actions, that is, they are brought for the enforcement of purely personal rights or obliga tions. If the transaction on which the action is founded could have taken place anywhere, the action is generally regarded as transitory; but if the transaction could only have happened in a particular place ... the action is local. Some authorities, considering the effect of the distinction, define transitory actions as actions which may be tried wherever defendant may be found and served." 92 c.J.S. Venue 8, at 678-79 (1955). Action. A former independent federal agency that administered various volunteer-services programs including Foster Grandparents, Retired Senior Vol unteers, Senior Companions, Volunteers in Service to America, and Student Community Service Projects . Its functions were transferred to the Corporation for National and Community Service in 1995. See CORPO RATION FOR NATIONAL AND COMMUNITY SERVICE. action, cause of. See CAUSE OF ACTION. action, form of. See FORM OF ACTION. action, right of. See RIGHT OF ACTION. actionable, adj. (16c) Furnishing the legal ground for a lawsuit or other legal action <intentional interference with contractual relations is an actionable tort>. actionable per quod (p;}r kwod). (Of potentially defam atory words) not inherently defamatory and therefore requiring allegation and proof of special damages . For example, if the defendant says, "1he plaintiff is crazy," the utterance is actionable per quod. That is, the plaintiff must prove, in addition to the utterance, that the defendant intended the words to mean that the plaintiff was mentally impaired or deficient in business or professional capacity, and that these words caused the plaintiff to suffer special damages. See PER QUOD. [Cases: Libel and Slander (:::::>6(1), 33.] actionable per se (p;}r say). (Of defamatory words) legally and conclusively presumed defamatory . In the law of defamation, words actionable per se 37 actio personalis are inherently libelous or slanderous. For example, if a person says of a fiduciary, "That person embez zles client funds," the utterance is actionable per se. The plaintiff does not have to allege or prove special damages. See PER SE. [Cases: Libel and Slander C= 6(1), 33.] ''The terminology 'actionable per se' has proven treacher ous, in that it has invited confusion with another doctrine which obtains in defamation cases. This is the doctrine which distinguishes between words (such as, 'You are a thief') which convey a defamatory meaning on their face, and, on the other hand, words of veiled detraction whose offense is apparent only when the context and circum stances are revealed. The former are sometimes said to be defamatory 'per se' or slanderous 'per se' or libelous 'per se,' whereas the latter, to be properly pleaded, must have an accompanying 'innuendo' or explanation. Clearly this requirement has no relationship to the other rule, that certain slanders are and others are not actionable without a showing of special damage, but the use of the phrase 'per se' in both connections has produced confUSion, and we find many American courts adopting the practice of requiring, in cases where the defamation, whether slander or libel, must be explained by an 'innuendo' to reveal its defamatory meaning, that special damages be also pleaded." Charles T. McCormick, Handbook on the Law of Damages 113,at417(1935). actionable negligence. See NEGLIGENCE (1). actionable nuisance. See NUISANCE (3). actionable per quod. See ACTIONABLE. actionable per se. See ACTIONABLE. actionable word. A term that is defamatory in itself. See libel per se under LIBEL. [Cases: Libel and Slander C= 6-14.] action agenda. See action calendar under CALENDAR (4). actionare (ak-shee-::l-nair-ee), vb. [Law Latin] To bring an action; to sue. action at law. See ACTION (4). action calendar. See CALENDAR (4). action de die in diem. See ACTION (4). action de in rem verso. See ACTION (4). actio negativa. See actio negatoria under ACTIO. actio negatoria. See ACTIO. actio negotiorum gestorum. See ACTIO. actionem non habere debet. See

See ACTIO. actio negotiorum gestorum. See ACTIO. actionem non habere debet. See ACTIO NON. action en declaration de simulation. See ACTION (4). action en desaveu. Louisiana law. A lawsuit to disavow paternity brought by a man who is legally presumed to be the father ofthe child. actiones honorariae (ak-shee-oh-neez [h]on-::l-rair-ee-I). A praetorian action; a class of equitable actions intro duced by the praetors to prevent injustices. actiones legis. See LEGIS ACTIO. actiones nominatae (ak-shee-oh-neez nom-::l-nay-tee), n. pl. [Latin "named actions"] Hist. Actions for which the Chancery had well-established forms. See CASU CONSIMILI. actiones poenales (ak-shee-oh-neez pee-nay-leez), n. pl. [Latin "penal actions"] See actio poenalis under ACTIO. action ex contractu. See ACTION (4). action ex delicto. See ACTION (4). action for declarator. See DECLARATOR. action for declaratory. See action ofdeclarator under ACTION (4). action for money had and received. See ACTION (4). action for money paid. See ACTION (4). action for poinding. See ACTION (4). action for the loss ofservices. See ACTION (4). action for the recovery ofland. See EJECTMENT. action in equity. 1. See ACTION (4). 2. See suit in equity under SUIT. action in personam. See ACTION (4). action in rem. See ACTION (4). action of account. See ACCOUNTING (3). action ofassize. See ACTION (4). action ofbook debt. See ACCOUNTING (4). action ofdebt. See CONDICTIO. action ofdeclarator. See ACTION (4). action ofejectment. See EJECTMENT (3). action ofreprobator. See REPROBATOR. actio non (ak-shee-oh non). [Latin "an action not"] Hist. A declaration in a special plea denying the plain tiff's right to maintain the action . The full phrase was actionem non habere debet (ought not to have or maintain the action). See special plea under PLEA. action on account. See ACCOUNTING (4). actio non accrevit infra sex annos. See ACTIO. action on decision. A legal memorandum from attorneys in the Internal Revenue Service's litigation division to the Service's Chief Counsel, containing advice on whether the Service should acquiesce, appeal, or take some other action regarding a court's decision that is unfavorable to the Service. -Abbr. AOD. action on expenditure. See ACTION (4). action on the case. See trespass on the case under TRESPASS. actio non ulterius. See ACTIO. actio noxalis (ak-shee-oh nok-say-lis), n. See NOXAL ACTION. action per quod servitium amisit. See ACTION (4). action quasi in rem. See ACTION (4). action to quiet title. See ACTION (4). action to review judgment. See ACTION (4). actio Pauliana. See ACTIO. actio perpetua. See ACTIO. actio personalis. See ACTIO. 38 actio pigneratitia actio pigneratitia. See ACTIO. actio poenalis. See ACTIO. actio popularis. See ACTIO. actio praejudicialis. See ACTIO. actio praetoria. See ACTIO. actio pro socio. See ACTIO. actio Publiciana. See ACTIO. actio Publiciana in rem. See actio Publkiana under ACTIO. actio quanti minoris. See ACTIO. actio quodjussu. See ACTIO. actio quod metus causa. See ACTIO. actio realis. See ACTIO. actio redhibitoria. See ACTIO. actio rei persecutoria. See ACTIO. actio rerum amotarum. See ACTIO. actio rescissoria. See ACTIO. actio serviana. See ACTIO. actio servi corrupti. See ACTIO. actio stricti juris. See ACTIO. actio temporalis. See ACTIO. actio tutelae. See ACTIO. actio uliUs. See ACTIO. actio venditio See ACTIO. actio vi bonorum raptorum. See ACTIO. actio vulgaris. See ACTIO. active adoption-registry statute. See ADOPTION-REG ISTRY STATUTE. active breach ofcontract. See BREACH OF CONTRACT. active case. See CASE. active concealment. See CONCEALMENT. active conduct. See CONDUCT. active-control-of-vessel duty. See ACTIVE-OPERATIONS DUTY. active debt. See DEBT. active duty. L Military law. The full-time status of being in any of the U.S. armed forces. 2. See positive duty under DUTY (1). active euthanasia. See EUTHANASIA. active income. See INCOME. active inducement. See INDUCEMENT. active negligence. See NEGLIGENCE. active-operations duty. Maritime law. A shipowner's obligation to provide safe working conditions, in the work areas that it controls, for the longshoremen who are loading or unloading the ship. -Also termed active-control-of-vessel duty. Cf. TURNOVER DUTY; INTERVENTION DUTY. [Cases: Shipping C=>S4(3.2).] active supervision. Antitrust. Under the test for deter mining whether a private entity may claim a state action exemption from the antitrust laws, the right of the state to review the entity's anticompetitive acts and to disapprove those acts that do not promote state policy. See STATE-ACTION DOCTRINE; MIDCAL TEST. [Cases: Antitrust and Trade Regulation C=>904.J "The active supervision requirement stems from the rec ognition that where a private party is engaging in the anticompetitive activity, there is a real danger that he is acting to further his own interests, rather than the govern mental interests of the State. The requirement is designed to ensure that the stateaction doctrine will shelter only the particular anticompetitive acts that, in the judgment of the State, actually further state regulatory policies. To accomplish this purpose, the active supervision require ment mandates that the State exercise ultimate control over the challenged anti competitive conduct." Patrick v. Burget, 486 U.S. 94, 100-OJ, 108 s.Ct. 1658, 1663 (1988). active trust. See TRUST. active waste. See commissive waste under WASTE (1). activistlawyering. See CAUSE LAWYERI:>!G. activity.!. The collective acts ofone person or of two or more people engaged in a common enterprise. commercial activity. An activity, such as operating a business, conducted to make a profit. 2. See MARKET VOLUME. activity incident to service. An act undertaken by a member ofthe armed forces as a part ofa military oper alion or as a result of the actor's status as a member of the military . For example, ifa member ofthe military takes advantage of that status by flying home on a military aircraft, the flight is activity incident to service, and a claim against the government for any injuries received may be barred under the Feres doctrine. See FERES DOCTRINE. acto (ahk-toh), n. Spanish law. 1. ACT (1). 2. ACT (2). 3. An action or lawsuit. Act ofAdjournaL Scots law. A regulation issued by the High Court ofJusticiary to regulate procedure both in that court and in the lower criminal courts. Act ofAssembly. Scots law. A piece oflegislation passed by the General Assembly ofthe Church ofScotland for governing the affairs of that church and its members. act ofattainder. See BILL OF ATTAINDER. act of bankruptcy. An event, such as a debtor's fraudu lent conveyance of property, that an involun tary bankruptcy proceeding against a debtor . The 1978 Bankruptcy Reform Act abolished this require ment as a condition to an involuntary bankruptcy pro ceeding. [Cases: BankruptcyC=>22SL] act ofcommission. See ACT (2). act of Congress. (lSc) A law that is formally enacted in accordance with the legislative power granted to Congress by the U.S. Constitution . To become a law, or an act ofCongress, a bill or resolution must be passed by a majority ofthe members ofboth the House of Representatives and the Senate. Bills or resolutions 39 act of possession may generally be introduced in either chamber, except that bills for generating revenue must be introduced in the House of Representatives. When a bill or reso lution is introduced in a chamber, it is usu. assigned to a committee. Ifit is passed by the committee, it is reported to the full chamber. Ifit passes in the full chamber, it is reported to the other chamber, which then usu. assigns it to a committee in that chamber. Ifit passes by majority votes of the committee and full body in that chamber, it is reported back to the originating chamber. If its terms have changed in the second chamber, it is submitted to a conference com mittee, consisting of members from both chambers, to work out a compromise. When the bill or resolution is passed, with the same terms, by both chambers, it is signed by the Speaker of the House and the Presi dent of the Senate (usu. the President Pro Tempore), and is presented to the President of the United States for signature. Ifthe President signs it or fails to return it to Congress within ten days, the bill or resolution becomes law. But if the President vetoes the bill or reso lution, it must be passed by a two-thirds majority ofthe House ofRepresentatives and the Senate to become law. U.S. Const. art. I, 7; 3 The Guide to American Law 165-66 (West 1983). act ofcourt. 1. See judicial act under ACT. 2. Scots law. A memorandum setting forth the proceedings in a lawsuit. 3. Scots law. A rule made by a sheriff regulat ing proceedings within the sheriffalty. act of God. (18c) An overwhelming, unpreventable event caused exclUSively by forces of nature, such as an earthquake, flood, or tornado. -The definition has been statutorily broadened to include all natural phenomena that are exceptional, inevitable. and irre sistible, the effects of which could not be prevented or avoided by the exercise of due care or foresight. 42 USCA 9601(1). -Also termed act ofnature; act of prOVidence; superiorforce; vis major; irresistible super human force; vis divina. Cf. FORCE MAJEURE; unavoid able accident under ACCIDENT. [Cases: Contracts C=> 303(3), 309(1).] "Act of God may be defined as an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it. It has been sug gested that it also has the wider meaning of 'any event which could not have been prevented by reasonable care on the part of anyone.' This nearly identifies it with inevitable accident, but. however desirable this may be for SCientific arrangement of the law, there is no sufficient authority to back this View." P.H. Winfield, A Textbook ofthe Law ofTort 16, at 45-46 (5th ed. 1950). "As a technical term, 'act ofGod' is untheological and infe licitous. It is an operation of 'natural forces' and this is apt to be confusing in that it might imply positive intervention of the deity. This (at any rate in common understanding) is apparent in exceptionally severe snowfalls, thunderstorms and gales. But a layman would hardly describe the gnawing of a rat as an act of God, and yet the lawyer may, in some circumstances, style it such. The fact is that in law the essence of an act ofGod is not so much a positive interven tion of the deity as a process of nature not due to the act of man, and it is this negative side which needs emphasis." P.H. Winfield, A Textbook ofthe Law ofTort 16, at 47 (5th ed. 1950). "[AlII natural agencies, as opposed to human activities, constitute acts of God, and not merely those which attain an extraordinary degree of violence or are of very unusual occurrence. The distinction is one of kind and not one of degree. The violence or rarity of the event is relevant only in considering whether it could or could not have been prevented by reasonable care; if it could not, then it is an act of God which will relieve from liability, howsoever trivial or common its cause may have been. If this be correct, then the unpredictable nature of the occurrence will go only to show that the act of God in question was one which the defendant was under no duty to foresee or provide against. It is only in such a case that the act of God will provide a defence." R.F.V. Heuston, Salmond on the Law of Torts 330 (17th ed. 1977). act of grace. An act of clemency; esp., such an act per formed at the beginning of a monarch's reign or at some other Significant occasion. act of honor. Commercial law. A transaction, memori alized in an instrument prepared by a notary public, evidencing a third person's agreement to accept, for the credit ofone or more ofthe parties, a bill that has been protested. Ibe UCC eliminated this type oftransac tion. act of hostility. An event that may be considered an adequate cause for war; CASUS BELLI. -Also termed hostile act. [Cases: War and National Emergency 2.] act of indemnity. 1.

ed hostile act. [Cases: War and National Emergency 2.] act of indemnity. 1. A statute that relieves specified persons, esp. government officials, from some penalty to which they might be subject as a result of haVing exceeded their powers or having otherwise acted ille gally. 2. A statute that compensates persons for damage incurred as a result of either some public measure or government service. [Cases: Officers and Public Employees act oflaw. 1. See act ofthe law under ACT. 2. See LEGAL ACT. act oflegislation. 1. A formal change in the law that existed previously. 2. A statute. [Cases: Statutes 2.] act of nature. 1. See ACT OF GOD. 2. See VIS MAJOR. act ofomission. See negative act under ACT. act of Parliament. A law made bv the British sover eign, with the advice and consent of the Lords and the Commons; a British statute. act of Parliament of Scotland. 1. A statute passed by the Parliament of Scotland between its creation in the 14th century and 1707. 2. ACT OF THE SCOTTISH PAR LIAMENT. act of petition. Hist. A summary proceeding in which litigants provide brief statements supported by affi davit. _ This procedure was used in the English High Court of Admiralty. act ofpossession. (16c) 1. The exercise ofphysical control over a corporeal thing, movable or immovable, with the intent to own it. 2. Conduct indicating an intent to claim property as one's own; esp., conduct that supports a claim of adverse possession. [Cases: Adverse Posses sion 40 act of providence. 1. See ACT OF GOD. 2. See VIS MAJOR. act ofsale. An official record ofa sale ofproperty; esp., a document drawn up by a notary, signed by the parties, and attested by witnesses. [Cases: Sales C=>28.] act of sederunt (s;J-deer-;mt). Scots law. A regulation issued by the Court of Session to regulate procedure in that court or in the lower civil courts. Act of Settlement. Hist. An act of Parliament (12 & 13 Will. 3, ch. 2, 1701) that resolved the question of royal succession unsettled after the Glorious Revolution of 1688. The question was resolved by limiting the Crown to Protestant members of the House of Hanover. The Act also provided that the sovereign must be a member of the Church of England, and it established that judges would hold office during good behavior rather than at the will of the sovereign. act-of-state doctrine. Int'llaw. The principle that no nation can judge the legality of a foreign country's sovereign acts within its own territory. As origi nally formulated by the U.S. Supreme Court in 1897, the doctrine provides that "the courts of one country will not sit in judgment on the acts of the government of another done within its own territory." Underhill v. Hernandez, 168 U.S. 250, 252, 18 S.Ct. 83, 84 (1897). The Supreme Court later declared that though the act-of state doctrine is compelled by neither international law nor the Constitution, it has "institutional underpin nings." Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,423,84 S.Ct. 923, 937 (1964). [Cases: International Law C=> 10.9.] Act ofSupremacy. Hist. A statute that named the English sovereign as supreme head of the Church of England (26 Hen. 8, ch. 1). The Act was passed in 1534 during Henry VIII's reign and confirmed in 1559 (1 Eliz., ch. 1) to counteract pro-Catholic legislation enacted during the reign of Mary Tudor. In addition to making the monarch both head of state and head of the church, the Act defined some ofthe monarch's powers as head of the church, such as the power to issue injunctions relating to ecclesiastical affairs. act of the law. See ACT. act ofthe party. See act in the law under ACT. act of the Scottish Parliament. A statute passed by the Parliament of Scotland created by the Scotland Act of 1998. It is typically cited by year, the letters ASP, and a serial number. -Also termed act ofParliament of Scotland. Act of Uniformity. Hist. Any of several 16th-and 17th century acts mandating uniform religious practices in England and Ireland; specif., an act requiring the use of the Book ofCommon Prayer. Act of Union. Any of several acts of Parliament uniting various parts of Great Britain . The term applies to (1) the Laws in Wales Act (1535), which united Wales with England and made that principality subject to English law, and (2) the Union with Ireland Act (1800), which abolished the Irish Parliament and incorporated Ireland into the United Kingdom ofGreat Britain and Ireland. It is used loosely in reference to the Union with Scotland in 1707, which was made not by statute but by treaty, approved by separate acts of the parliaments of Scotland and England. The treaty dissolved each par liament and created the new state ofGreat Britain with one parliament, the Parliament of Great Britain. actor. 1. One who acts; a person whose conduct is in question. bad actor. An actor who is shown or perceived to have engaged in illegal, impermissible, or unconscionable conduct. A presumption that a person is a bad actor may be created by an adverse-inference instruction. 2. Archaic. A male plaintiff. 3. Hist. An advocate or pleader; one who acted for another in legal matters. Cf. REUS (1). 4. Roman law. (ital.) A person who sues; a claimant. -Also termed (in sense 4) petitor. PI. (in sense 4) actores. actrix (ak-triks). Archaic. A female plaintiff. acts ofassembly. See SESSION LAWS. actual, adj. (14c) Existing in fact; real <actual malice>. Cf. CONSTRUCTIVE. actual abandonment. See ABANDONMENT (10). actual agency. See AGENCY (1). actual allegiance. See ALLEGIANCE. actual assent. See ASSENT. actual authority. See AUTHORITY (1). actual bailment. See BAILMENT. actual bias. See BIAS. actual capital. See CAPITAL. actual cash value. See VALUE (2). actual cause. See but-for cause under CAUSE (1). actual change of possession. A real, rather than con structive, transfer of ownership. A creditor of the transferor cannot reach property that has actually changed possession. actual consumer confusion. See CONSUMER CONFU SION. actual controversy. 1. See CONTROVERSY (2). 2. See CON TROVERSY (3). actual damages. See DAMAGES. actual delivery. See DELIVERY. actual escape. See ESCAPE (2). actual eviction. See EVICTION. actual force. See FORCE. actual fraud. See FRAUD. actual-injury trigger. Insurance. The point at which an insured suffers damage or injury (such as the time of an automobile accident), so that there is an occurrence invoking coverage under an insurance policy. -Also termed injury-in-fact trigger. Cf. EXPOSURE THEORY; MANIFESTATION THEORY; TRIPLE TRIGGER. [Cases: Insurance C=2265.] 41 actus reus actual innocence. See INNOCENCE. actual knowledge. See KNOWLEDGE. actual loss. See LOSS. actually litigated. (1969) (Of a claim that might be barred by collateral estoppel) properly raised in an earlier lawsuit, submitted to the court for a determination, and determined. - A party is barred by the doctrine of collateral estoppel from relitigating an issue that was actually litigated -usu. including by summary judgment but not necessarily by default judgment -in an earlier suit involving the same parties, even if that suit involved different claims. Restatement (Second) ofJudgments 27 cmt. d (1980). [Cases: Judgment <8=> 652, 653, 720.] actual malice. See MALICE. actual market value. Seefair market value under VALUE (2). actual notice. See NOTICE. actual physical control. (1880) Direct bodily power over something, esp. a vehicle. -Many jurisdictions require a showing of "actual physical control" ofa vehicle by a person charged with driving while intoxicated. [Cases; Automobiles actual possession. See POSSESSION. actual reduction to practice. See REDUCTION TO PRACTICE. actual-risk test. The doctrine that, for an injured employee to be entitled to workers'-compensation benefits, the employee must prove that the injury arose from, and occurred in the course and scope of, employ ment. [Cases: Workers' Compensation <8=>608.] actual seisin. See seisin in deed under SEISIN. actual service. See personal service (1) under SERVICE (2). actual taking. See physical taking under TAKING (2). actual total loss. See LOSS. actual user confusion. See CONSUMER CONFUSION. actual value. See fair market value under VALUE (2). actuarial equivalent. The amount of accrued pension benefits to be paid monthly or at some other interval so that the total amount of benefits will be paid over the expected remaining lifetime of the recipient. [Cases: Labor and Employment C~563.] actuarially sound retirement system. A retirement plan that contains sufficient funds to pay future obligations, as by receiving contributions from employees and the employer to be invested in accounts to pay future benefits. Cf. NONACTUARIALLY SOUND RETIREMENT SYSTEM. [Cases: Pensions <8=>48.) actuarial method. A means ofdetermining the amount of interest on a loan by using the loan's annual per centage rate to separately calculate the finance charge actuarial present value. The amount ofmoney necessary to purchase an annuity that would generate a particular monthly payment, or whatever periodic payment the plan provides, for the expected remaining life span of the recipient. actuarial surplus. An estimate of the amount by which a pension plan's assets exceed its expected current and future liabilities, including the amount expected to be needed to fund future benefit payments. [Cases: Labor and Employment C~513.1 actuarial table. An organized chart of statistical data indicating life expectancies for people in various cat egories (such as age, family history, and chemical exposure). -Actuarial tables are usu. admissible in evidence. -Also termed expectancy table; mortality table; mortuary table. Cf. LIfE TABLE. actuarius (ak-choo-air-ee-~s or ak-tyoo-), n. [Latin] Roman law. 1. A notary or clerk; a shorthand writer. 2. A keeper of public records. actuary (ak-choo-air-ee), n. A statistician who deter mines the present effects offuture contingent events; esp., one who calculates insurance and pension rates on the basis of empirically based tables. actuarial (ak-choo-air-ee-ill), adj. actum (ak-tilm), n. [Latin] A done; an act or deed. actum et tractatum (ak-tilm et trak-tay-tilm). [Law Latin] Hist. (Of an instrument) done and transacted. actus (ak-t~s), n. [Latin] L An act or action; a thing done. 2. Hist. An act of Parliament; esp., one passed by both houses but not yet approved by the monarch. Cf. STATUTUM (1). 3. Roman law. A servitude for driving cattle or a carriage across another's land. -Also termed (in sense 3) jus actus. Cf. ITER (1). actus animi (ak-t~s an-~-mI). [Law Latin] Hist. An act ofthe mind; an intention. See ANIMUS. "Again, consent, which is essential to all contracts, is an actus animi, and is presumed in all cases where the contract is ex facie regular," John Trayner, Trayner's Latin Maxims 21-22 (4th ed. 1894). actus legitim us (ak-t~s lil-jit-il-mds). [Law Latin] Hist. An act in the law; a juristic act; spedf., an act the perfor mance of which was accompanied by solemn rituals. actus proximus (ak-t~s prok-si-m~s). [Law Latin] Hist. An immediate act, as distingUished from a preparatory act, esp. in the commission of a crime. actus reus (ak-tds ree-dB also raY-ds). [Law Latin "guilty act"] (1902) The wrongful deed that comprises the phYSical components of a crime and that generally must be coupled with mens rea to establish criminal liability; a forbidden act <the actus reus for theft is the taking of or unlawful control over property without the owner's consent>. Also termed deed ofcrime; overt act. See CORPUS DELICTI. Cf. MENS REA. [Cases; Criminal Law for each payment period, after crediting each payment, "The word actus connotes a 'deed.' a physical result ofwhich is credited first to interest and then to principal. human conduct. When criminal policy regards such a deed [Cases: Labor and Employment <8=>500.] as sufficiently harmful it prohibits it and seeks to prevent ACUS 42 its occurrence by imposing a penalty for its commission. It has long been the custom of lawyers to describe a deed so prohibited by law in the words actus reus. Thus actus reus may be defined as 'Such result of human conduct as the law seeks to prevent.' It

reus. Thus actus reus may be defined as 'Such result of human conduct as the law seeks to prevent.' It is important to note that the actus reus, which is the result of conduct, and therefore an event, must be distinguished from the conduct which produced the result. For example, in a simple case of murder it is the victim's death (brought about by the conduct of the murderer) which is the actus reus; the mens rea is the mur derer'S intention to cause that death. In other words, the crime is constituted by the event, and not by the activity (or in certain cases, as we shall see, by the omission to act) which caused the event." JW. Cecil Turner, Kenny's Outlines afCriminal Law 13 (16th ed. 1952). "The phrase 'deed of crime' [= actus reus] as so used does not indicate the crime itself but merely one of the ingredients of crime; and this ingredient may be present without any crime at all, just as hydrogen is one of the ingredients of water but may be present without water. The words 'deed of crime' are so suggesting of the crime itself, however, that perhaps the Latin phrase 'actus reus' is less likely to cause confusion. The actus reus is essential to crime but is not sufficient for this purpose without the necessary mens rea, just as mens rea is essential to crime but is insufficient without the necessary actus reus." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 831 (3d ed. 1982). ACUS. abbr. ADMINISTRATIVE CONFERENCE OF THE UNITED STATES. A.D. abbr. ANNO DOMINI. ad (ad), prep. [Latin] At; by; for; near; on account of; to; until; upon; with relation to; concerning. ADA. abbr. AMERICANS WITH DISABILITIES ACT. ad abundantiorem cautelam (ad ab-<ln-dan-shee-or-<lm kaw-tee-l<lm). [Law Latin] Hist. For more abundant caution. -Also termed ad cautelam ex superabundanti (ad kaw-tee-Idm eks s[y]oo-pJr-ab-<ln-dan-tI). ad admittendum clericum (ad ad-mi-ten-dam kler-J bm). [Law Latin] See DE CLERICO ADMITTENDO. ad aliud examen (ad ay-Iee-<ld eg-zay-m<ln), adv. [Law Latin] To another tribunal. ad alium diem (ad ay-lee-<lm dI-am), adv. [Law Latin] To another day. adaptation right. Copyright. A copyright holder'S exclu sive right to prepare derivative works based on the pro tected work. 17 USCA 106(2) . For example, before a movie studio can make a film version ofa book, it must secure the author's adaptation right. See derivative work under WORK (2). [Cases: Copyrights and Intellectual Property <.:;=::c 12(3).J ad assisas capiendas (ad <l-SIZ-as kap-ee-en-d<ls). [Law Latin] To take assizes; to hold assizes. a dato (ay day-toh), adv. [Law Latin] From the date. Also termed a datu. ad auctoritatem praestandam (ad awk-tor-i-tay-tJm pree-stand-ddm). [Law Latin] Hist. For interposing their authority . The phrase typically referred to tutors or curators ad litem who provided authority but incurred no personal liability in exercising their office. ad audiendam considerationem curiae (ad aw-dee-en d<lm bn-sid-<l-ray-shee-oh-nJm kyoor-ee-I), vb. [Law Latin] To hear the judgment of the court. ad audiendum et determinandum (ad aw-dee-en-dJm et di-t<lr-mi-nan-d<lm), vb. [Law Latin] To hear and deter mine. See OYER ET TERMINER. ADB. abbr. ACCIDENTAL-DEATH BENEFIT. ad barram (ad bahr- .. m), adv. [Law Latin] To the bar; at the bar. ad barram evocatus (ad bahr-Jm ee-voh-kay-tJs). [Law Latin] Called to the bar. See CALL TO THE BAR. ad campi partem (ad kam-pI pahr-t<lm or -tern). [Law Latin] For a share ofthe field or land. ad captandum lucrum (ad cap-tan-dJmloo-kr<lm). [Law Latin] Hist. For the purpose ofmaking gain. ad captum vulgi (ad kap-t<lm vdl-jI). [Law LatinI Adapted to the common understanding . The phrase appeared in reference to statutes concerning matters that people usu. handled without legal assistance. ad cautelam ex superabundant;. See AD ABUNDANTIO REM CAUTELAM. ad civilem effectum (ad s<l-vI-I<lm e-fek-tdm). [Law Latin] Hist. As to the civil effect. _ The phrase appeared in reference to the effect of an act in a civil case, as dis tingUished from the effect ofthe same act in a criminal case. ad coelum doctrine. The common-law rule that a land owner holds everything above and below the land, up to the sky and down to the earth's core, includ ing all minerals. _ This rule governs ownership of "hard" (immovable) minerals such as coal, but not "fugacious" (volatile) minerals such as oil and Cf. RULE OF CAPTURE. [Cases: Mines and Minerals Property <:;=07.] ad coelum et ad in/eros. [Law Latin) Up to the sky and down to the center ofthe earth <the ownership ofland extends ad coelum et ad in/eros>. ad colligendum (ad kol-i-jen-d<lm). [Law Latin] For col lecting <administrator ad colligendum>. ad colligendum bona defuncti (ad kol-i-jen-dJm boh-n<l di-f<lngk-tr). [Law Latin "for collecting the goods ofthe deceased"] Special letters ofadministration authoriZing a person to collect and preserve a decedent's property. ad communem legem (ad k<l-myoo-n<lm lee-j<lm), n. [Law Latin "to common law"] Hist. A writ ofentry available after the death ofa life tenant to recover a reversionary interest in land alienated by the tenant. -Also termed entry ad communem legem. ad commune nocumentum (ad b-myoo-nee nok-Y<l men-tam), adv. [Law Latin] To the common nuisance. ad comparendum (ad kom-pJ-ren-d ..m), vb. [Law Latin] To appear . This term is part of the larger phrase ad comparendum, et ad standum juri ("to appear and to stand to the law"). Also termed (in standard Latin) ad comparandum. 43 ad computum reddendum (ad k<lm-pyoo-tam ri-den dam), vb. [Law Latin] To render an account. ad consimiles casus (ad bn-sim-a-Ieez kay-sds). [Law Latin] Hist. To similar cases. See CONSIMILI CASU. ad convincendam conscientiam judicis (ad kon-vin sen-dam kon-shee-en-shee-dm joo-di-sis). [Law Latin] Scots law. Sufficient to satisfy the moral conviction of the judge . The phrase appeared in reference to cir cumstantial evidence that was admissible in paternity cases because direct proof was unavailable. adcordabilis denarii (ad-kor-day-ba-lis di-nair-ee-l), n. [Latin] Hist. Money paid by a vassal to the lord upon the sale or exchange of a feud. ad culpam (ad kal-pdm), adv. [Law Latin] Until miscon duct ad curiam (ad kyoor-ee-dm), adv. [Law Latin] At a court; to court. ad curiam vocare (ad kyoor-ee-am voh-kair-ee), vb. [Law Latin] To summon to court. ad custagia (ad k<l-stay-jee-a), adv. [Law Latin] At the costs. ad custum (ad kas-tdm), adv. [Law Latin] At the cost. add, n. Parliamentary law. A form of amendment that places new wording at the end ofa motion or ofa para graph or other readily divisible part within a motion. See amendment by adding under AMENDMENT (3). ad damnum clause (ad dam-nam). [Latin "to the damage"] (1840) A clause in a prayer for relief stating the amount of damages claimed. See PRAYER FOR RELIEF. [Cases: Federal Civil Procedure C=,679; Pleading (;::;)72.] "Where the amount the plaintiff is entitled to recover appears from the statement of facts as where the amount due the plaintiff is alleged on breach of a money demand, the demand ofjudgment may take the place of an ad damnum clause." Edwin E. Bryant, The Law ofPleading Under the Codes ofCivil Procedure 209 (2d ed. 1899). added damages. See punitive damages under DAMAGES. ad defendendum (ad di-fen-den-d~m), vb. [Latin} To defend. addendum (~-den-d~m). (17c) Something to be added, esp. to a document; a supplement. addicent (ad-i-sent), adj. Roman law. One who transfers something by official authority. addicere (~-dis-ar-ee), vb. [Latin] Roman law. To adjudge, allot, or condemn. addict (a-dikt), n. A person who habitually uses a sub stance, a narcotic drug. [Cases: Chemical Depen dents Controlled Substances addict (Cl-dikt), vb. -addictive, adj. -addiction, n. drug addict. A person who is psychologically or physi ologically dependent on a narcotic drug. addict, vb. Roman law. 1. To adjudge (to); to deliver under court order. 2. More broadly, to surrender a thing (to someone else). additional-consideration rule addictio (d-dik-shee-oh), n. [Latin] Roman law. The awarding by a magistrate of a person or thing to another, as the property of a debtor to a creditor, or as a form of conveyance. -Also termed addiction. PI. addictiones (d-dik-shee-oh-neez). addictio in diem (d-dik-shee-oh in dI-dm). [Latin "assignment for a fixed period" or "postponement to a date"] Roman law. A clause in a contract of sale in which the parties agree that the contract can be termi nated if the seller receives a better offer within a speci fied period. Also termed in diem addictio. addiction. 1. The habitual and intemperate use of a substance, esp. a potentially harmful one such as a narcotic drug. The usual requisites are (I) an emo tional dependence that leads to compulsiveness; (2) an enhanced tolerance of the substance, leading to more potent doses; and (3) phYSical dependence such that withdrawal symptoms result from deprivation. 2. ADDICTIO. [Cases: Chemical Dependents (';:.:> 1; Con trolled Substances addictive drug. See DRUG. ad diem (ad dl-dm). [Latin] At a day; at the appOinted day. addition. (17c) 1. A structure that is attached to or con nected with another building that predates the struc ture; an extension or annex. Although some courts have held that an addition is merely an appurtenant structure that might not actually be in physical contact with the other building, most courts hold that there must be physical contact. 2. A title or appellation appended to a person's name to show rank, occupation, or place of residence . In English law, there are tradi tionally four kinds of additions: (1) those of estate, such as yeoman, gentleman, or esquire; (2) those of degree (or dignity), such as knight, baron, earl, marquis, or duke; (3) those of trade or occupation, such as scriv ener, painter, mason, or carpenter; and (4) those of place of residence, such as London, Bath, or Chester. It was formerly required by the statute of additions (1 Hen. 5, ch. 5) that original writs and indictments state a person's addition, but the practice has long since been abolished. additional claims after allowance. Patents. Claims sub mitted for the first time by amendment after the U.S. Patent and Trademark Office has informed the appli cant of the patent application's allowance . Once a notice ofallowance has been issued, the applicant may not by right submit additional claims. But in some cir cumstances, such as when the applicant seeks to add only dependent claims, the supervisory examiner has authority to enter an amendment containing additional claims after allowance but on or before the date when the issue fee is paid. See amendment after allowance under PATENT- APPLICATION AMENDMENT. [Cases: Patents (;::::: 109.] additional-consideration rule. Employment law. An exception to the employment-at-will principle, whereby an employee who does not have a written contract but 44 additional damages who undertakes substantial hardship in addition to the normal job duties -as by relocating to a different city based on oral assurances of job security can maintain a breach-of-contract claim if the employer does not fulfill its agreement. [Cases: Labor and Employment (;=>34(2).] additional damages. See DAMAGES. additional extended coverage. Insurance

(;=>34(2).] additional damages. See DAMAGES. additional extended coverage. Insurance. A policy endorsement providing supplemental residential coverage for a variety of perils, including vandalism, damage from falling trees, and water damage from the plumbing system. additional grand jury. See special grand jury under GRAND JURY. additional instruction. See JURY INSTRUCTION. additional insurance. See INSURANCE. additional insured. See INSURED. additional legacy. See LEGACY. additional-perils clause. See INCHMAREE CLAUSE. additional servitude. See SERVITUDE (2). additional standard deduction. See DEDUCTION. additional tax. See stopgap tax under TAX. additional term. See TERM (5). additional work. See WORK (1). additur (ad-<l-tuur). [Latin "it is added to"] (1894) A trial court's order, issued usu. with the defendant's consent, that increases the jury's award ofdamages to avoid a new trial on grounds of inadequate damages. -The term may also refer to the increase itself, the procedure, or the court's power to make the order. Also termed increscitur. Cf. REMITTITUR. [Cases: Federal Civil Pro cedure New Trial (;=> 161.) add-on clause. (1965) An installment-contract provi sion that converts earlier purchases into security for new purchases. [Cases: Secured Transactions (;=> 114, 146.] addone (<l-doh-nee), p.pl. [Law French] Given to. Also spelled addonne. add-on interest. See INTEREST (3). add-on loan. See LOAN. address, n. 1. The place where mail or other communi cation is sent. 2. In some states, a legislature's formal request to the executive to do a particular thing, such as to remove a judge from office. 3. Equity practice. The part ofa bill in which the court is identified. See DIREC TION (5). address to the Crown. Upon a reading ofa royal speech in Parliament, the ceremonial resolution by Parliament expressing thanks to the sovereign for the gracious speech. _ Formerly, two members were selected in each house for moving and seconding the address. With the commencement ofthe 1890-1891 session, a Single reso lution was adopted. adduce (a-d[y]oos), vb. (15c) To offer or put forward for consideration (something) as evidence or authority <adduce the engineer's expert testimony>. adduc tion (<l-dak-sh<ln), n. -adducible (<l-d[y]oo-s<l-b<ll), adj. ADEA. abbr. AGE DISCRIMINATION IN EMPLOYMENT ACT. adeem, vb. To revoke or satisfy (a willed gift) by some other gift. [Cases; Wills (;=>766.] ad effectum (ad i-fek-tam). [Law Latin] To the effect. ad effectum sequentem (ad i-fek-t<lm si-kwen-t<lm). [Law Latin] To the effect following. ademptio (<l-demp-shee-oh), n. [Latin) Roman law. Ademption. _ The term referred to the revocation ofa legacy under certain circumstances, as when the item bequeathed no longer existed or when the testator no longer owned the item. The ablative form ademptione means "by ademption." PI. ademptiones (<l-demp-shee oh-neez). ademption (a-demp-sh<ln), n. (16c) Wills & estates. The destruction or extinction of a testamentary gift by reason ofa bequeathed asset's ceasing to be part ofthe estate at the time of the testator's death; a beneficiary's forfeiture ofa legacy or bequest that is no longer opera tive. -There are two theories ofademption. Under the identity theory ofademption, a devise ofa specific of property will fail if that property is not a part of the testator's estate upon his or her death. Under the intent theory ofademption, by contrast, when a specific devise is no longer in the testator's estate at the time of his or her death, the devisee will receive a gift of equal value ifit can be proved that the testator did not intend the gift to be adeemed. The intent theory has been codified in 2-606 of the 1990 Uniform Probate Code. Also termed extinguishment oflegacy. Cf. ABATEMENT; ADVANCEMENT; LAPSE (2). [Cases: Wills (;=>764-771.] adeem (a-deem), vb. -adeemed, adempted, adj. ademption by extinction. (1847) An ademption that occurs because the unique property that is the subject of a specific bequest has been sold, given away, or destroyed, or is not otherwise in existence at the time of the testator's death. [Cases: Wills (;=>767,768.] ademption by satisfaction. (1916) An ademption that occurs because the testator, while alive, has already given property to the beneficiary in lieu of the testa mentary gift. [Cases: Wills (;=>766.] I adeo (ad-ee-oh). [Latin] So; as. adequacy ofdisclosure. Patents. Satisfaction ofthe stat utory requirements that the specification in a patent application (1) gives enough detailed information to enable one skilled in the art to make and use the claimed invention (the enablement requirement); (2) discloses the best way the inventor knows to make and use the invention (the best-mode requirement); and (3) shows that the inventor was in full possession of the claimed invention on the application's filing date 45 (the written-description requirement) . A patent that fails to meet anyone of these requirements may be rejected under 35 USCA 112. Any issued patent with an inadequate disclosure is invalid, although the chal lenger has to overcome the presumption ofvalidity. Also termed sufficiency ofdisclosure. See ENABLEMENT REQUIREMENT; BEST-MODE REQUIREMENT. [Cases: Patents adequacy test. See IRREPARABLE-INJURY RULE. adequate, adj. Legally sufficient <adequate notice>. adequate assurance. See ASSURANCE. adequate care. See reasonable care under CARE. adequate cause. See adequate provocation under PROVO CATION. adequate compensation. See just compensation under COMPENSATION. adequate consideration. See CONSIDERATION (1). adequate notice. See due notice under NOTICE. adequate protection. Bankruptcy. Consideration that a debtor provides to secured creditors to protect them from the deteriorating condition or diminishing value of their collateral during the pendency of the bank ruptcy. The consideration, which can be in any form, is most commonly an additional payment, additional lien, or replacement lien. [Cases: Bankruptcy (;::::> 3062.] "Bankruptcy intends to safeguard secured creditors' encumbrances, but the stay threatens them by prevent ing the secured creditors from foreclosing or taking other actions to apply the property's value against the secured debt. Bankruptcy aims to guard against this threat by ordering relief ... for lack of adequate protection of the secured interest." David G. Epstein et aI., Bankruptcy 3-27, at 140 (1993). adequate provocation. See PROVOCATION. adequate remedy at law. See REMEDY. adequate representation. See REPRESENTATION (3). adequate-state-grounds doctrine. (1962) A judge-made principle that prevents the U.S. Supreme Court from reviewing a state-court decision based partially on state law ifa decision on a federal issue would not change the result. [Cases: Federal Courts adequate warning. See WARNING, adesse (ad-es-ee), vb. Civil law. To be present. Cf. ABESSE. adeu (<I-dyoo), adv. [Law French] Without day . This is a common term in the Year Books, indicating a final dis missal from court (alez adeu "go hence without day"). See GO HENCE WITHOUT DAY; ALLER SANS JOUR. ad eversion em juris nostri (ad i-v<lr-shee-oh-n<lm joor-is nos-tn). [Law Latin] To the overthrow ofour right. ad excambium (ad eks-kam-bee-dm). [Law Latin] For exchange; for compensation. ad exhaeredationem (ad eks-heer-<'l-day-shee-oh-n<lm). [Law Latin] To the disinheritance; to the injury of the inberitance. ad fundandam jurisdictionem "The writ of waste calls upon the tenant to appear and shew cause why he hath committed waste and destruction in the place named, ad exhaeredationem, to the disinherison of the plaintiff." 3 William Blackstone, Commentaries on the Laws ofEngland 228 (1768). ad exitum (ad ek-si-t<lm), [Law Latin] At issue; at the end (usu. of pleadings). ADF. abbr. AFRICAN DEVELOPMENT FOUNDATION. adfaciendam juratam ilIam (ad fay-shee-en-ddm jd-ray t<lm il-<lm). [Law Latin] To make up that jury. adfaciendum (ad fay-shee-en-d<lm). [Latin1 To do; to make. adfactum praestandum (ad fak-t<lm pree-stand-d"m). [Law Latin "for the performance of a particular act"] Scots law. An obligation to perform an act other than paying money; an obligation that must be strictly ful filled (such as to hand over a vase sold). "In popular language almost all obligations may be said to be of this class, but there are obligations of a peculiar character which alone are denoted by the legal signification of this phrase. The obligation of a debtor is clearly one for the performance of a certain act, namely, the payment of his debt; but a decree at the instance of his creditor would not be termed a decree ad factum praestandum. An obliga tion ad factum praestandum is one for the performance of an act within the power of the obligant ...." John Trayner, Trayner's Latin Maxims 27 (4th ed. 1894). adfeodi firmam (ad fee-<l-dI f<lr-m<lm). [Law Latin1 To fee farm. See FEE FARM. ad fidem (ad fI-d<lm), adv. [Law Latin] In allegiance; under allegiance; owing allegiance. This term appeared in a variety of phrases, including ad fidem regis ("under the king's allegiance") and natus ad fidem regis ("born in allegiance to the king"). adfilum aquae (ad fI-l<lm ak-wee), adv. [Law Latin] To the thread ofthe water; to the central line or middle of a stream . This refers to the ownership reach of a riparian proprietor. -Also termed ad medium filum aquae. adfilum viae (ad fI-l<lm vI-eel, adv. [Law Latin] To the middle of the way; to the central line of the road. Also termed ad l~ediumfilum viae. adfinem (ad fI-n<lm), adv. [Latin] To the end. This citation Signal, abbreviated in text ad fin., formerly provided only the first page of the section referred to, but now usu. directs the reader to a stated span of pages. adfinis (ad-fI-neez), n. [Latin] Roman law. A relative of one's spouse. PI. adfines. adfinitas (ad-fin-i-tas), Il. [Latin] Roman law. The con nection between a husband or wife and relatives of his or her spouse. ad firmam tradidi (ad far-m<lm tray-d<l-dr), n. [Law Latin] See FARM LET. adfundandam jurisdictionem (ad f<ln-dan-ddm joor-is dik-shee-oh-n<lm). [Law Latin] Hist. For the purpose of founding jurisdiction. See ARRESTUM JURISDICTIONIS FUNDANDAE CAUSA. 46 ad gao/am deliberandam ad gaolam deliberandam (ad jay-ldm di-lib-d-ran-ddm), vb. [Law Latin] To deliver the jail; to make jail delivery. See COMMISSION OF GAOL DELIVERY; JAIL DELIVERY. adgravamen (ad grd-vay-m;m), adv. [Latin] To the griev ance, injury, or oppression of (another person). adhere, vb. 1. (Of one house in a bicameral legislature) to reject the other house's insistence on a difference in leg islation that has passed both houses, without requesting a conference. Cf. INSIST ON. "When both houses have insisted [on differing views about an amendmentl without a request for conference, it is also in order to move to adhere. Adoption of a motion to adhere represents an unyielding attitude of the adopting house. It is unparliamentary for an adhering house to request a con ference; however, the other house may continue to insist and request a conference. It is in order for an adhering house to recede from its adherence and agree to a confer ence." National Conference of State Legislatures, Mason'S Manual of Legislative Procedure 768, at 556-57 (2000). 2. Scots law. To live together as husband and wife. 3. Scots law. (Of an appellate court) to affirm a lower court's judgment. -adherence, n. adherence. 1. ACCESSION (3). 2.

court's judgment. -adherence, n. adherence. 1. ACCESSION (3). 2. Scots law. The duty of spouses to live together. adhesion. See ACCESSION (3). adhesionary contract. See adhesion contract under CONTRACT. adhesion contract. See CONTRACT. adhesory contract. See adhesion contract under CONTRACT. adhibere (ad-hd-bair-ee), vb. [Latin] Civil law. To apply; to put (a thing) to use; to exercise. adhibere diligentiam (ad-hd-bair-ee dil-<l-jen-shee-dm), vb. [Latin] Civil law. To use care. ad hoc (ad hok), adj. [Latin "for this"] Formed for a par ticular purpose <the board created an ad hoc commit tee to discuss funding for the new arena>. ad hoc, adv. ad hoc arbitration. See ARBITRATION. ad hoc committee. See COMMITTEE. ad hoc compromis. See COMPROMIS. ad hominem (ad hom-<l-n<lm), adj. [Latin "to the person"] (16c) Appealing to personal prejudices rather than to reason; attacking an opponent's character rather than the opponent's assertions <the brief was replete with ad hominem attacks against opposing counsel>. - ad hominem, adv. ad hunc diem (ad hangk dI-<lm), adv. [Law Latin] To this day. adiate (ad-ee-ayt), vb. Roman-Dutch law. To accept as beneficiary under a will. -adiation, n. ad idem (ad I-dam). [Latin] To the same point or matter; of the same mind <the parties reached a consensus ad idem and agreed to consummate a sale>. a die confectionis (ay dI-ee bn-fek-shee-oh-nis), adv. [Law Latin] From the day of the making. a die datus (ay dI-ee day-tds), n. [Latin "given from (such-and-such) a day"] A lease provision establishing the beginning of the rental period. adieu (d-dyoo). [Law French "to God"] Farewell. This term, although etymologically distinct, appears some times in the Year Books in place of adeu. See ADEU; ALLER ADIEU. ad inde (ad in-dee), adv. [Law Latin] To that or them; thereto. ad inferos. [Law Latin] To the center of the earth. See AD COELUM ET AD INFEROS. ad infinitum (ad in-fd-nHdm). [Latin "without limit"] To an indefinite extent <a corporation has a duration ad infinitum unless the articles ofincorporation specify a shorter period>. ad informandum judicem (ad in-for-man-ddm joo-di sdm). [Law Latin] Hist. For the judge's information. Also termed ad informationem judiciS. ad informationem judicis. See AD INFORMANDUM rUDICEM. ad inquirendum (ad in-kw<l-ren-ddm), n. [Law Latin "to inquire"] Hist. A writ instructing the recipient to inves tigate something at issue in a pending case. ad instantiam parHs (ad in-stan-shee-am pahr-tis), adv. [Law Latin] Rist. At the instance ofa party. ad interim (ad in-t<lr-im), adv. [Latin] Hist. In the meantime; temporarily. ad interim copyright. See COPYRIGHT. adiratus (ad-d-ray-t<ls), adj. [Law Latin] Hist. Lost; strayed; removed. aditio (d-dish-ee-oh), n. Hist. An outsider'S informal acceptance ofheirship. aditio hereditatis (<l-dish-ee-oh h<l-red-Hay-tis). [Latin "entering on an inheritance"] Roman law. An heir's acceptance of an inheritance. -Also spelled aditio haereditatis. See CRETION. adjacent, adj. Lying near or close to, but not necessarily touching. Cf. AD10INING. adject (a-jekt), vb. To annex or adjOin. -adject, adj. adjectio dominii percontinuationem possessionis (a-jek shee-oh d<l-min-ee-r pdr k;m-tin-yoo-ay-shee-oh-nam p<l-zes[h]-ee-oh-nis). [Latin] Roman law. The acquisi tion ofthe right to property ownership by continued possession. This acquisition is otherwise known as usucapio or acquisitive prescription. See USUCAPIO; adequate prescription under PRESCRIPTION. adjective law (aj-ik-tiv). (l80S) The body ofrules govern ing procedure and practice; PROCEDURAL LAW. Also termed adjectival law. [Cases: Action C=66.] "The body of law in a State consists of two parts, substan tive and adjective law. The former prescribes those rules of civil conduct which declare the rights and duties of all who are subject to the law. The latter relates to the remedial agencies and procedure by which rights are maintained, their invasion redressed, and the methods by which such results are accomplished in judicial tribunals." Edwin 47 E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 1 (2d ed. 1899). adjoining (a-joyn-ing), adj. (lSc) Touching; sharing a common boundary; CONTIGUOUS. Cf. ADJACENT. [Cases: Adjoining Landowners LJ adjoin (a-joyn), vb. adjoining owner. See OWNER. adjourn (<l-j;nu), vb. (lSc) Parliamentary law. To end or postpone (a proceeding). Cf. RECESS (2). "A motion to recess suspends the current meeting until a later time; the unqualified motion to adjourn terminates the meeting. When an assembly reconvenes following a recess, it resumes the meeting at the point where it was interrupted by the motion to recess. When an assembly reconvenes following an adjournment, it begins an entirely new meeting, starting with the first step in the regular order of business." Alice Sturgis, The Standard Code of Parliamentary Procedure 76 (4th ed. 2001). adjourn sine die (sl-nee [or sin-ayJ dI-ee). [Latin "without date"] To end a deliberative assembly's or court's session without setting a time to reconvene. Also termed adjourn without day. See SINE DIE. Cf. RISE (4). adjourn to a day certain. To end a deliberative assem bly's or court's session while fixing a time for the next meeting. Also termed adjourn to a day and time certain;fix a day to which to adjourn. adjourn without day. See adjourn sine die. adjournatur (aj-<lr-nay-tdr). [Latin] It is adjourned. This word formerly appeared at the end ofreported decisions. adjourued. See STAND ADJOURNED. adjourned meeting. See MEETING. adjourned term. See TERM (5). adjournment (d-jdrn-mant), n. l. The act ofadjourning; specif., a putting off ofa court session or other meeting . or assembly until a later time. See ADJOURN. adjournment sine die (a-j<lrn-m<lnt sl-nee [or sin-ay] dl-ee). The ending of a deliberative assembly's or court's session without setting a time to reconvene. Also termed adjournment without day. "The term adjournment sine die (or adjournment without day) usually refers to the dose of a session of several meetings: (a) where the adjournment dissolves the assembly as in a series of mass meetings or in an annual or biennial convention for which the delegates are separately chosen for each convention; or (b) where, unless called into special session, the body will not be convened again until a time prescribed by the bylaws or constitu tion as in the case of a session of a legislature." Henry M. Robert, Robert'S Rules of Order Newly Revised 8, at 81 (10th ed. 2000). conditional adjournment. An adjournment that does not schedule another meeting, but provides for recon vening the assembly at an officer's or board's call or under other defined circumstances. 2. The period or interval between adjourning and reconvening. [Cases: Criminal Law C:::l649; Trial C=> 26.] adjudicium provocare adjournment day. See DAY. adjournment day iu error. See DAY. adjourn sine die. See ADJOURN. adjudge (<l-j<lj), vb. (14c) 1. ADJUDICATE (1). 2. To deem or pronounce to be. 3. To award judicially. Cf. ABJUDGE. 4. Scots law. (Of a creditor) to take a debtor's estate through adjudication. See ADJUDICATION (3).5. To award (some or all ofa debtor's estate) to a creditor. adjudger, n. l. One who adjudges. 2. Scots law. An adjudging creditor. adjudicataire (<l-joo-di-k<l-tair), n. Canadian law. One who buys property at a judicial sale. adjudicate (<l-joo-di-kayt), vb. 1. To rule upon judi cially. 2. ADJUDGE (2). 3. ADJUDGE (3). Also termed judicate. adjudicatee (a-joo-di-ka-teel. Civil law. A purchaser at a judicial sale. adjudicatio. Roman law. A part of a formula in a parti tion action by which the judge aSSigned the parties real rights in their shares; specif., a part ofa formula (Le., the praetor's statement ofan issue for a judex) directing the judex to apportion property in a divisory action . Adjudicatio was used to apportion property in divisory actions such as actio de communi dividundo, actio familiae erciscundae, and actio finium regundorum. It was not part ofthe formula in any other type ofaction. See FORMULA (1). adjudication (d-joo-di-kay-sh<ln), n. (17c) 1. lhe legal process of resolving a dispute; the process ofjudicially deciding a case. 2. JUDGMENT. former adjudication. See FORMER ADJUDICATION. 3. Scots law. The Court ofSession's transfer ofheritable property to a creditor as security for or in satisfaction of a debt, or its vesting title in an entitled claimant adjudicatiou hearing. See HEARING . adjudication withheld. See deferred judgment under JUDGMENT. adjudicative (<l-joo-di-b-tiv), adj. 1. Of or relating to adjudication. 2. Having the ability to judge. Also termed adjudicatory; judicative. adjudicative-claims arbitration. See ARBITRATION. adjudicative fact. See FACT. adjudicative law. See CASELAW. adjudicator (d-joo-di-kay-t<lr). A person whose job is to render binding decisions; one who makes judicial pronouncements. adjudicatory. See ADJUDICATIVE. adjudicatory hearing. See adjudication hearing under HEARIC'lG. adjudicatory proceeding. See adjudication hearing under HEARING. ad judicium provocare (ad joo-dish-ee-dID proh-v<l kair-ee), vb. [Latin] To summon to court; to commence an action. 48 adjunct adjunct (aj-;mgkt), adj. (16c) Added as an accompanying object or circumstance; attached in a subordinate or temporary capacity <an adjunct professor>. -adjunct, n. adjunct account. See ACCOUNT. adjunction (<:l-j;mgk-sh;m). 1. The act of adding to. 2. Civil law. The union of an item of personal property owned by one person with that owned by another. See ACCESSION (4). [Cases: Accession (;=J 1.] adjunctum accessorium (<:l-jangk-t<:lm ak-s<:l-sor-ee-am), n. [Law Latin] An accessory or appurtenance. ad jungendum auxilium (ad j<:ln-jen-d<:lm awg-zil ee-<:lm), vb. [Law Latin] To join in aid. ad jura regis (ad joor-<:l ree-jis), n. [Law Latin "for the rights of the king"] Hist. A writ brought against a person seeking to eject the holder of a royal benefice. The writ was available to the holder ofthe benefice. adjuration (aj-<:l-ray-sh<:ln), n. 1. The act of solemnly charging or entreating. 2. A swearing; a solemn oath. [Cases: Oath (;=J 1.] adjure (<:l-juur), vb. (14c) To charge or entreat solemnly <the President adjured the foreign government to join the alliance>. -adjuration (aj-<:l-ray-sh<:ln), n. adjuratory (<:l-juur-<:l-tor-ee), adj. -adjurer, adjuror (<:l-juur-<:lr), n. adjust, vb. 1. To determine the amount that an insurer will pay an insured to cover a loss. [Cases: Insurance (;=J 3234.] 2. To arrive at a new agreement with a creditor for the payment ofa debt. adjustable-rate mortgage. See MORTGAGE. adjustable-rate preferred stock. See STOCK. adjusted basis. See BASIS.

GAGE. adjustable-rate preferred stock. See STOCK. adjusted basis. See BASIS. adjusted book value. See BOOK VALUE. adjusted cost basis. See BASIS. adjusted gross estate. See ESTATE (3). adjusted gross income. See INCOME. adjusted ordinary gross income. See INCOME. adjusted present value. See PRESENT VALUE. adjuster. One appointed to ascertain, arrange, or settle a matter; esp., an independent agent or employee ofan insurance company who investigates claimed losses, and negotiates and settles claims against the insurer. Also termed claims adjuster. [Cases: Insurance (;=J 3222.] average adjuster. Maritime law. An adjuster who deter mines the proportionate value of sacrificed cargo as a percentage of the total value ofthe ship, cargo, and freight, and who allocates contribution among the owners of the surviving properties. See CONTRIBU TION (4). [Cases: Shipping (::2166.] "The mutual contributions are settled by the 'statements' of persons called average adjusters, who are not truly arbi trators or umpires between the parties, but who can, by their impartiality, command so high a degree of respect for their 'statements,' that they are likely to be accepted by the parties; unless indeed there should arise an important question of principle calling for judicial determination." 2 Stephen's Commentaries on the Laws of England 247 (L. Crispin Warmington ed., 21st ed. 1950). independent adjuster. An adjuster who solicits business from more than one insurance company; one who is not employed by, and does not work exclusively for, one insurance company. adjusting entry. An accounting entry made at the end of an accounting period to record previously unrec ognized revenue and expenses, as well as changes in assets and liabilities. adjustment board. An administrative agency charged with hearing and deciding zoning appeals. -Also termed board ofadjustment; board ofzoning appeals. [Cases: Zoning and Planning (;=J354.] adjustment bond. See BOND (3). adjustment ofstatus. Immigration law. The changing of an alien'S classification from nonimmigrant or parolee (temporary) resident to immigrant (permanent) resident. This is a technical term used only in United States immigration filings. Cf. 245(1) WAIVER. [Cases: Aliens, Immigration, and Citizenship (;=J309.] adjustment security. See SECURITY. adjutant general (aj-<:l-t<:lnt), n. (usu. cap.) 1. The admin istrative head of a military unit having a general staff. [Cases: Armed Services (;=J4, 6.1.] 2. An officer in charge ofthe National Guard ofa state. [Cases: Militia (;=J3,7.] ad largum (ad lahr-g<:lm), adj. [Law Latin] At large; at liberty; unconfined. adlegiare (ad-lee-jee-air-ee), vb. [Law Latin] To purge (oneself) of a crime by oath. See PURGATION. ad levandam conscientiam (ad l<:l-van-d<:lm kon-shee en-shee-<:lm). [Law Latin] Scots law. For the purpose of easing the conscience . The phrase typically described certain confessions that a criminal suspect voluntarily made when apprehended and that could be used as evidence in the criminal trial. But an arrested suspect's responses to questions posed by the arresting officer were usu. not admissible because only a magistrate could ask such questions. ad libellum rescribere (ad l<:l-bel-<:lm ri-skrI-b<:l-ree), vb. [Latin] Roman law. To write an answer to a petition, esp. one to the emperor. See RESCRIPT (3). ad libitum (ad lib-i-t<:lm), adv. [Law Latin] At pleasure. The modern term ad-lib (adj. & vb.), borrowed from drama and music, is essentially the same; it means "at the performer's pleasure," and allows the performer discretion in innovating a part impromptu. "[Blut in actions where the damages are precarious, being to be assessed ad libitum by ajury, as in actions for words, ejectment, or trespass, it is very seldom possible for a plaintiff to swear to the amount of his cause of action; and therefore no special bail is taken thereon .... " 3 William Blackstone, Commentaries on the Laws ofEngland 292 (1768). 49 administration ad litem (ad II-tern or -t;}m). [Latin "for the suit"] (I8c) For the purposes of the suit; pending the suit. See guardian ad litem under GUARDIAN. ad longum (ad long-gam). [Law Latin) Hist. At length. ad lucrandum vel perdendum (ad loo-kran-d;}m vel p;}r den-d;}m), adv. [Law Latin) For gain or loss. _ These were emphatic words in a warrant of attorney. It is sometimes expressed "to lose and gain." See WARRANT OF ATTORNEY. ad majorem cautelam (ad ma-jor-;}m kaw-tee-Iam), adv. [Law Latin) For greater security. admanuensis (ad-man-yoo-en-sis), n. [Law Latin fro Latin ad-+ manus "a hand"] Hist. An oath-taker who places a hand on the Bible. Cf. AMANUENSIS. ad manum (ad may-nam), adj. [Latin] At hand; ready for use. admeasurement (ad-mezh-ar-mant), n. (l6c) 1. Ascer tainment, assignment, or apportionment by a fixed quantity or value, or by certain limits <the ship's admeasurement is based on its crew, engine, and capacity>. 2. A writ obtained for purposes of ascer taining, assigning, or apportioning a fixed quantity or value or to establish limits; esp., a writ available against persons who usurp more than their rightful share of property. admeasure (ad-mezh-<lr), vb. admeasurement ofdower. Hist. A writ available to an heir (or the heir's guardian if the heir is an infant) to reduce the dower ofthe ancestor's widow who, while the heir was an infant, was assigned more dower than she was entitled to. -Also termed admensuratione dotis. "If the heir or his guardian do not assign her dower within the term of quarantine, or do assign it unfairly, she has her remedy at law, and the sheriff is appointed to assign it. Or if the heir (being under age) or his guardian assign more than she ought to have, it may be afterwards remedied by writ of admeasurement of dower." 2 William Blackstone, Commentaries on the Laws ofEngland 136 (1766). admeasurement ofpasture. Hist. A writ against a person whose cattle have overgrazed a common pasture. ad medium filum aquae. See AD FILUM AQUAE. ad medium filum viae. See AD FILUM VIAE. ad melius inquirendum (ad mee-Iee-;:ls in-kw;}-ren-d;}m), n. [Law Latin "for making better inquiry"] Hist. A writ commanding a coroner to hold a second inquest. admensuratio (ad-men-sha-ray-shee-oh), n. [Law Latin] Hist. Admeasurement. admensuratione dotis. See admeasurement of dower under ADMEASUREMENT. adminicle (ad-min-i-kal), n. 1. Corroborative or explan atory proof. 2. Scots law. A writing that tends to estab lish the existence or terms ofan otherwise unavailable document, such as a lost will or deed. Also termed adminiculum. adminicular (ad-ma-nik-y;}-I;}r), adj. Corroborative or auxiliary <adminicular evidence>. adminicular evidence. See EVIDENCE. adminicuJate (ad-m;}-nik-p-layt), vb. Scots law. To give corroborating evidence. adminiculum (ad-m<l-nik-ya-l;}m), n. [Latin "support"] Roman law. Legal or evidentiary means of supporting one's case; ADMINICLE. administration, n. (14c) l. The management or per formance of the executive duties of a government, institution, or business. 2. In public law, the practical management and direction of the executive depart ment and its [Cases: Administrative Law and Procedure 3. A judicial action in which a court undertakes the management and distribution ofproperty. _ Examples include the administration of a trust, the liquidation of a company, and the realiza tion and distribution of a bankrupt estate. See JOINT ADMINISTRATION. 4. 1he management and settlement of the estate of an intestate decedent, or of a testator who has no executor, by a person legally appointed and supervised by the court. -Administration ofan estate involves realizing the movable assets and paying out ofthem any debts and other claims against the estate. It also involves the division and distribution of what remains. [Cases: Executors and Administrators 1-516.]- administer, vb. administrative, adj. administration cum testamento annexo (k;)m tes-t;} men-toh <l-nek-soh). [Latin "with the will annexed") An administration granted when (1) a testator's will does not name any executor or when the executor named is incompetent to act, is deceased, or refuses to act, and (2) no successor executor has been named or is qualified to serve. Abbr. c.t.a. -Also termed administration with the will annexed. [Cases: Execu tors and Administrators (;:::>21.] administration de bonis non (dee boh-nis non). [Latin "of the goods not administered"] An administration granted for the purpose ofsettling the remainder of an intestate estate that was not administered by the former administrator. Abbr. d.b.n. [Cases: Execu tors and Administrators (:::::,37.] administration de bonis non cum testamento annexo (de boh-nis non kam tes-t;}-men-toh ;}-nek-soh). An administration granted to settle the remainder of a testate estate not settled by a previous administra tor or executor. -This type ofadministration arises when there is a valid will, as opposed to an admin istration de bonis non, which is granted when there is no wilL Abbr. d.b.n,c.t.a. [Cases: Executors and Administrators administration durante absentia (d[yJuu-ran-tee ab-sen-shee-<l). An administration granted during the absence of either the executor or the person who has precedence as administrator. administration durante minore aetate (d[y]uu-ran tee mi-nor-ee ee-tay-tee). An administration granted during the minority ofeither a child executor or the person who has precedence as administrator. 50 administration bill administration pendente lite (pen-den-tee II-tee). An administration granted during the pendency of a suit concerning a will's validity. Also termed pendente lite administration; special administration. See PENDENTE LITE. [Cases: Executors and Admin istrators C:::>22.] administration with the will annexed. See administra tion cum testamento annexo. ancillary administration (an-s~-ler-ee). (1814) An administration that is auxiliary to the administra tion at the place of the decedent's domicile, such as one in another state . The purpose ofthis process is to collect assets, to transfer and record changed title to real property located there, and to pay any debts in that locality. -Also termed foreign administration. [Cases: Executors and Administrators "The object of ancillary administration is to collect assets of nonresident decedents found within the state and remit the proceeds to the domiciliary executor or administrator .... One of the principal purposes of ancillary administration is to protect local creditors of nonresident decedents by collecting and preserving local assets for their benefit." 31 Am. Jur. 2d Executors and Administrators 1057-58, at 686 (2002). caeterorum administration (set-<:l-ror-~m). [Latin "of the rest"] An administration granted when limited powers previously granted to an administrator are inadequate to settle the estate's residue. domiciliary administration (dom-~-sil-ee-er-ee). (1850) The handling of an estate in the state where the decedent was domiciled at death. foreign administration. See ancillary administration. general administration. (I8c) An administration with authority to deal with an entire estate. Cf. special administration. limited administration. (18c) An administration for a temporary period or for a special purpose. [Cases: Executors and Administrators C:::>22.] original administration. An administration that is not ancillary to a domiciliary administration. pendente lite administration. See administration pendente lite. public administration. (1893) In some jurisdictions, an administration by an officer appointed to admin ister for an intestate who has left no person entitled to apply for letters (or whose possible representatives refuse to serve). [Cases: Executors and Administra tors (;=-,24.] special administration. (18c) 1. An administration with authority to deal with only some ofa decedent's property, as opposed to administering the whole estate. 2. See administration pendente lite. Cf. general administration. [Cases: Executors and Administra tors <':=::22.] temporary administration. (18c) An administration in which the court appoints a fiduciary to adminis ter the affairs of a decedent's estate for a short time before an administrator or executor can be appointed and qualified. [Cases

ter the affairs of a decedent's estate for a short time before an administrator or executor can be appointed and qualified. [Cases: Executors and Administrators C:::>22.] administration hill. See BILL (3). administration expense. Tax. A necessary expenditure made by an administrator in managing and distribut ing an estate . These expenses are tax-deductible even if not actually incurred by the time the return is filed. [Cases: Executors and Administrators C:::> 108.] Administration for Children and Families. A unit in the U.S. Department of Health and Human Services responsible for health, economic, and social well-being issues involving children and families, refugees, legal ized aliens, and people with developmental disabili ties. -Abbr. ACF. administration letters. See LETTERS OF ADMINISTRA TION. administration of justice. The maintenance of right within a political community by means ofthe physical force ofthe state; the state's application ofthe sanction offorce to the rule of right. Administration on Aging. A unit in the U.S. Depart ment of Health and Human Services responsible for promoting the welfare of the elderly, often in collabora tion with governmental agencies that prOVide services to the elderly and to caregivers ofthe elderly. administration pendente lite. See ADMINISTRATION. administration with the will annexed. See administra tion cum testamento annexo under ADMINISTRATION. administrative act. See ACT. administrative adjudication. The process used by an administrative agency to issue regulations through an adversary proceeding. Cf. RULEMAKING. [Cases: Administrative Law and Procedure administrative agency. See AGENCY (3). administrative collateral estoppel. See COLLATERAL ESTOPPEL. Administrative Conference of the United States. A former independent federal agency that provided a forum where agency heads, private attorneys, univer sity professors, and others studied ways to improve the procedures that agencies use in administering federal programs. It was abolished in 1995. Abbr. ACUS. administrative-control rule. Tax. The rule making the grantor of a trust liable for tax if the grantor retains control that may be exercised primarily for the grant or's own benefit. IRC (26 USCA) 675. [Cases: Internal Revenue C:::>4025, 4028.] administrative-convenience exception. Bankruptcy. A provision permitting a bankruptcy plan to have a separate classification for small, unsecured claims, to the extent that the separate classification will assist in a more efficient disposition of the estate, as by paying or eliminating the small claims earlier than other claims. 11 USCA 1122(b). [Cases: Bankruptcy C:::>3550.] administrative crime. See CRIME. 51 administrative deviation. A trustee's unauthorized departure from the terms ofthe trust. administrative discharge. See DISCHARGE (8). administrative discretion. See DISCRETION (4). Administrative Domain-Name Challenge Panel. Trademarks. A board of experts convened under the auspices of the World Intellectual Property Organi zation to decide Internet domain-name disputes. - Abbr. ACP. administrative expense. l. OVERHEAD. 2. Bankruptcy. A cost incurred by the debtor, after filing a bankruptcy petition, that is necessary for the debtor to continue operating its business . Administrative expenses are entitled to payment on a priority basis when the estate is distributed. 11 USCA 503(b). See general admin istrative expense under EXPENSE. [Cases: Bankruptcy C=:' 2871-2879.] administrative freeze. Bankruptcy. The refusal by a debtor's bank to permit withdrawals from the debtor's bank account after the bank learns that the debtor has filed bankruptcy, usu. because the debtor owes money to the bank in addition to maintaining funds on deposit. [Cases: Bankruptcy C=:'2678.] administrative hearing. An administrative-agency pro ceeding in which evidence is offered for argument or trial. [Cases: Administrative Law and Procedure C=:' 469.] administrative interpretation. See INTERPRETATION. administrative law. (1896) The law governing the orga nization and operation of administrative agencies (including executive and independent agencies) and the relations of administrative agencies with the leg islature, the executive, the judiciary, and the public . Administrative law is divided into three parts: (1) the statutes endowing agencies with powers and establish ing rules ofsubstantive law relating to those powers; (2) the body ofagency-made law, consisting ofadministra tive rules, regulations, reports, or opinions containing findings offact, and orders; and (3) the legal principles governing the acts of public agents when those acts conflict with private rights. [Cases: Administrative Law and Procedure C=:' 1.] "Administrative law deals with the field of legal control exercised by lawadministering agencies other than courts, and the field of control exercised by courts over such agencies'" Felix Frankfurter, The Task ofAdministrative Law, 75 U. Pa. L. Rev. 614, 615 (1927). "[Ajdministrative law is to labor law, securities regulation, and tax what civil procedure is to contracts, torts, and commercial law. Administrative law studies the way govern ment institutions do things. It is therefore the procedural component to any practice that affects or is affected by government decision makers other than just the courts. Its study goes beyond traditional questions; it explores a variety of procedures and it develops ideas about decision making and decisionmakers" 1 Charles H. Koch, Adminis trative Law and Practice 1.2, at 2 (2d ed. 1997). international administrative law. l. The internal law and rules of international organizations. 2. The sub stantive rules of international law that directly refer administrative subpoena to the administrative matters of individual states. 3. Domestic administrative law specifically concerned with international problems or situations. -Also termed administrative international law. administrative-law judge. (1972) An official who presides at an administrative hearing and who has the power to administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations. 5 USCA 556(c). -Abbr. ALJ. Also termed hearing examiner; hearing officer; trial examiner. [Cases: Administrative Law and Procedure C=:'443.] Administrative Office ofthe United States Courts. An office in the judicial branch of the federal government responsible for administering the nonjudicial business of the federal courts (except the Supreme Court), dis bursing funds, collecting statistics, fixing certain salaries, and purchasing supplies and equipment. Created in 1939 the Office is supervised by the Judicial Conference of the United States. 28 USCA 601 et seq. -Abbr. AOUSC; AO. See JUDICIAL CONFERENCE OF THE UNITED STATES. [Cases: Courts C=:'55.] administrative officer. See OFFICER (1). administrative order. See ORDER (2). administrative patent judge. See JUDGE. Administrative Procedure Act. l. A federal statute establishing practices and procedures to be followed in rulemaking and adjudication . The Act was designed to give citizens basic due-process protections such as the right to present evidence and to be heard by an independent hearing officer. 2. A similar state statute. -Abbr. APA. [Cases: Administrative Law and Procedure C=:'4.] administrative proceeding. (1841) A hearing, inquiry, investigation, or trial before an administrative agency, usu. adjudicatory in nature but sometimes quasi-legis lative. -Also termed evidentiary hearing;full hearing; trial-type hearing; agency adjudication. [Cases: Admin istrative Law and Procedure C=:'309, 341-513.] administrative process. l. The procedure used before administrative agencies. [Cases: Administrative Law and Procedure C=:'309.] 2. The means of summoning witnesses to an agency hearing. [Cases: Administrative Law and Procedure C=:'464.] administrative remedy. See REMEDY. administrative review. See REVIEW. administrative rule. (1856) An officially promulgated agency regulation that has the force oflaw. Admin istrative rules typically elaborate the requirements of a law or policy. [Cases: Administrative Law and Pro cedure C=:'381.] administrative rulemaking. See RULEMAKING. administrative search. See SEARCH. administrative search warrant. See administrative warrant under WARRANT (1). administrative subpoena. See SUBPOENA. 52 administrative tribunal administrative tribunal. An administrative agency before which a matter may be heard or tried, as dis tinguished from a purely executive agency; an admin istrative agency exercising a judicial function. [Cases: Administrative Law and Procedure ~309.] administrative warrant. See WARRANT (1). administrator (ad-min-a-stray-tar). (15c) l. A person who manages or heads a business, public office, or agency. court administrator. An official who supervises the nonjudicial functions of a court, esp. the court's calendar, judicial assignments, budget, and nonjudi cial personnel. [Cases: Courts ~)55.] local administrator. Conflict oflaws. An administra tor appointed in the state where property is located or where an act is done. 2. A person appointed by the court to manage the assets and liabilities of an intestate decedent . This term once referred to males only (as opposed to administratrix), but legal writers now generally use administrator to refer to someone of either sex. In the Restatement of Property, the term administrator includes the term executor unless specifically stated otherwise. Cf. EXECUTOR (2). [Cases: Executors and Administrators administrator ad colligendum (ad kol-i-jen-dam). An administrator appointed solely to collect and preserve the decedent's estate. - Also termed administrator ad colligendum bona. [Cases: Executors and Admin istrators 122.J administrator ad litem (ad II-tern or -tam). A special administrator appOinted by the court to represent the estate's interest in an action usu. either because there is no administrator of the estate or because the current administrator has an interest in the action adverse to that of the estate. [Cases: Executors and Administrators ~22.] administrator ad prosequendum (ad prahs-a-kwen d..m). An administrator appointed to prosecute or defend a certain action or actions involVing the estate. (Cases: Executors and Administrators ~22.1 administrator c.t.a. See administrator cum testamento annexo. administrator cum testamento annexo (hm tes-ta men-toh a-nek-soh). An administrator appointed by the court to carry out the provisions of a will when the testator has named no executor, or the executors named refuse, are incompetent to act, or have died before performing their duties. -Also termed admin istrator c.t.a.; administrator with the will annexed. [Cases: Executors and Administrators ~21.1 administrator d.b.n. See administrator de bonis non. administrator de bonis non (dee boh-nis non). An administrator appOinted by the court to administer the decedent'S goods that were not administered by an earlier administrator or executor. -If there is no will, the administrator bears the name administrator de bonis non (abbr. administrator d.b.n.), but if there is a will, the full name is administrator de bonis non cum testamento annexo (abbr. administrator d.b.n.c.t.a.). [Cases: Executors and Administrators administrator durante absentia (d[yJuu-ran-tee ab-sen-shee-a). An administrator appointed to act while an estate's executor or an administrator with precedence is temporarily absent. administrator durante minore aetate (d[y]uu-ran-tee mi-nor-ee ee-tay-tee). An administrator who acts during the minority of a person who either is named by the testator as the estate's executor or would be appointed as the estate's administrator but for the person's youth. [Cases: Executors and Administra tors C=Y29(l).] administrator pendente lite. See special administra tor. administrator with the will annexed. See administra tor cum testamento annexo. ancillary administrator (an-sa-ler-ee). (1825) A court appointed administrator who oversees the distribu tion of the part of a decedent's estate located in a jurisdiction other than where the decedent was domi ciIed (the place ofthe main administration). [Cases: Executors and Administrators domiciliary administrator. A person appointed to administer an estate in the state where the decedent was domiciled at death. [Cases: Executors and Admin istrators ~518.] foreign administrator. An administrator appointed in another jurisdiction. [Cases: Executors and Admin istrators ~517.] general administrator. (18c) A person appointed to administer an intestate decedent's entire estate. public administrator. (1809) A state-appointed officer who administers intestate estates that are not admin istered by the decedent's relatives . This officer's right to administer is usu. subordinate to the rights of cred itors, but in a few jurisdictions the creditors' rights are subordinate. [Cases: Executors and Administra tors~24.] special administrator. (18c) 1. A person appointed to administer only a specific part of an intestate dece dent's estate. [Cases: Executors and Administrators

person appointed to administer only a specific part of an intestate dece dent's estate. [Cases: Executors and Administrators <8::)22.] 2. A person appOinted to serve as adminis trator of an estate solely because of an emergency or an unusual situation, such as a will contest. Also termed (in sense 2) administrator pendente lite. administrator ad colligendum. See ADMINISTRATOR (2). administrator ad colligendum bona. See ADMINISTRA TOR (2). administrator's bond. See fidUciary bond under BOND (2). administrator's deed. See DEED. administratrix (ad-min-a-stray-triks or ad-min a-stra-triks). Archaic. A female administrator. Pl. 53 administratrixes, administratrices. See ADMINIS TRATOR (2). admiraIitas (ad-m,,-ral-,,-tas), n. [Law Latinl1. Admi ralty; an admiralty court. 2. SOCIETAS NAVALIS. admiral's mast. See MAST (1). admiralty (ad-m"-r,,l-tee), n. 1. A court that exer cises jurisdiction over all maritime contracts, torts, injuries, or offenses. _ The federal courts are so called when exercising their admiralty jurisdiction, which is conferred by the U.S. Constitution (art. III, 2, cI. 1). Also termed admiralty court; maritime court. [Cases: Admiralty 1.] 2. The system of jurispru dence that has grown out of the practice of admiralty courts; MARITIME LAW. 3. Narrowly, the rules govern ing contract, tort, and workers'-compensation claims arising out ofcommerce on or over navigable water. Also termed (in senses 2 & 3) admiralty law. -admi ralty, adj. Admiralty, First Lord. See FIRST LORD OF THE ADMI RALTY. admiralty and maritime jurisdiction. The exercise of authority over maritime cases by the U.S. district courts sitting in admiralty. See 28 USCA 1333. -Often shortened to admiralty jurisdiction; maritime jurisdic tion. See ADMIRALTY (1); SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS. [Cases: Admiralty (;::'1-25.] Admiralty Clause. The clause of the U.S. Constitution giving the federal courts jurisdiction over admiralty and maritime cases. U.S. Const. art. III, 2, d. L admiralty court. See ADMIRALTY (1). Admiralty Extension Act. A 1948 statute extend ing admiralty-tort jurisdiction to include all cases in which damage or injury is caused by a vessel on navi gable water, regardless of where the injury or damage occurred. 46 USCA app. 740. Specifically, the Act extended jurisdiction over damages and injuries that a vessel causes on land, such as to bridges and piers or to people on them. Abbr. AEA. [Cases: Admiralty (:::;17.] admiralty jurisdiction. See ADMIRALTY AND MARITIME JURISDICTION. admiralty law. 1. See ADMIRALTY (2). 2. See ADMIRALTY (3). admissibility (ad-mis-,,-bil-a-tee), n. (18e) The quality or state of being allowed to be entered into evidence in a hearing, trial, or other official proceeding. [Cases: Federal Civil Procedure Trial C=>43.] 'Admissibility' can best be thought of as a concept consist ing of two quite different aspects: disclosure to the trier of fact and express or implied permission to use as 'evidence.' If we think of admissibility as a question of disclosure or nondisclosure, it is usually easy to say whether or not an item of evidence has been admitted. When we consider the question of permissible use, the concept seems much more complex. In the first place, evidence may be 'admissible' for one purpose but not for another.... In the second place, questions of the permissible use of evidence do not arise only at the time of disclosure to the trier of fact. The court admission may have to consider admissibility in deciding whether to give the jury a limiting instruction, whether or not an opponent's rebuttal evidence is relevant, and whether or not counsel can argue to the jury that the evidence proves a particular point." 22 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure 5193, at 184 (1978). conditional admissibility. (1904) The evidentiary rule that when a piece of evidence is not itself admissi ble, but is admissible if certain other facts make it relevant, the evidence becomes admissible on con dition that counsel later introduce the connecting facts. -If counsel does not satisfy this condition, the opponent is entitled to have the conditionally admitted piece of evidence struck from the record, and to have the judge instruct the jury to disregard it. [Cases: Criminal Law 681; Federal Civil Procedure C=>2014; Trial curative admissibility. (1904) The rule that an inad missible piece ofevidence may be admitted ifoffered to cure or counteract the effect ofsome similar piece of the opponent's evidence that itself should not have been admitted. [Cases: Criminal Law <8='396; Evidence C=>155.] limited admissibility. (1910) The principle that tes timony or exhibits may be admitted into evidence for a restricted purpose. _ Common examples are admitting prior contradictory testimony to impeach a witness but not to establish the truth, and admit ting evidence against one party but not another. The trial court must, upon request, instruct the jury properly about the applicable limits when admitting the evidence. Fed. R. Evid. 105. [Cases: Criminal Law C=>385, 673; Trial C=>S4, 207.] multiple admissibility. (1904) The evidentiary rule that, although a piece of evidence is inadmissible under one rule for the purpose given in offering it, it is nev ertheless admissible if relevant and offered for some other purpose not forbidden by the rules ofevidence. [Cases: Criminal Law C=>385; Trial admissible (ad-mis-;l-b"l), adj. (17c) 1. Capable ofbeing legally admitted; allowable; permissible <admissible evidence>. 2. Worthy of gaining entry or being admitted <a person is admissible to the bar upon obtaining a law degree and passing the bar exam>. admissible evidence. See EVIDENCE. admission (ad-mish-;ln), n. (15e) 1. Any statement or assertion made by a party to a case and ~ffered against that party; an acknowledgment that facts are true. Cf. CONFESSION. [Cases: Criminal Law Evidence C=>200-205.] admission against interest. (1828) A person's statement acknowledging a fact that is harmful to the person's position, esp. as a litigant. -An admission against interest must be made either by a litigant or by one in privity with or occupying the same legal position as the litigant; as an exception to the hearsay rule, it is admissible whether or not the person is available as a witness. Fed. R. Evid. 801(d)(2). A declaration 54 admission tax against interest, by contrast, is made by a nonlitigant who is not in privity with a litigant; a declaration against interest is also admissible as an exception to the hearsay rule, but only when the declarant is unavailable as a witness. Fed. R. Evid. 804(b)(3). See declaration against interest under DECLARATION (6). [Cases: Evidence admission by employee or agent. An admission made by a party-opponent's agent during employment and concerning a matter either within the scope of the agency or authorized by the party-opponent. [Cases: Criminal Law Evidence <>.237-245.] admission by party-opponent. (1959) An opposing party's admission, which is not considered hearsay ifit is offered against that party and is (I) the party's own statement, in either an individual or a represen tative capacity; (2) a statement ofwhich the party has manifested an adoption or belief in its truth; (3) a statement by one authorized by the party to make such a statement; (4) a statement by the party's agent concerning a matter within the scope of the agency or employment and made during the existence of the relationship; or (5) a statement by a coconspira tor of the party during the course of and in further ance ofthe conspiracy. Fed. R. Evid. 80l(d)(2). [Cases: Criminal Law <r~405-41O; Evidence C=)221-253.] admission by silence. (1867) Ihe failure of a party to speak after another party's assertion of fact that, if untrue, would naturally compel a person to deny the statement. [Cases: Criminal Law C-=>407; Evidence ~")220.] admission in judicio. See judiCial admission. adoptive admission. (1940) An action by a party that indicates approva I of a statement made by another, and thereby acceptance that the statement is true. [Cases: Criminal Law 407; Evidence ('f-=>220.] extrajudicial admission. (1824) An admission made outside court proceedings. implied admission. (18c) An admission reasonably inferable from a party's action or statement, or a party's failure to act or speak. Also termed tacit admission. [Cases: Evidence ~265(12).] incidental admission. An admission made in some other connection or involved in the admission of some other fact. incriminating admission. An admission of facts tending to establish guilt. [Cases: Criminal Law (;= 405.] judicial admission. (18c) A formal waiver of proof that relieves an opposing party from having to prove the admitted fact and bars the party who made the admission from disputing it. Also termed solemn admission; admission in judicio; true admission. [Cases: Criminal Law (;::::>406(4); Evidence (;::::> 206, 265(7).] quasi-admission. (1813) An act or utterance, usu. extrajudicial, that creates an inconsistency with and discredits, to a greater or lesser degree, a present claim or other evidence of the person creating the inconsis tency. [Cases: Evidence ~200.] solemn admission. See judicial admission. tacit admission. See implied admission. true admission. See judicial admission. 2. Acceptance of a lawyer by the established licensing authority, such as a state bar association, as a member of the practicing bar, usu. after the lawyer passes a bar examination and supplies adequate character refer ences <admission to the bar> . The entry of a lawyer on the rolls of an integrated bar, usu. after the fulfill ment oftwo prerequisites: graduating from law school and passing a state bar examination. -Also termed admission to practice law. [Cases: Attorney and Client (;=-4-7.] admission on motion. Permanent admission of a lawyer who is in good standing in the bar ofa different state without the need for a full bar examination. [Cases: Attorney and Client admission pro hac vice (proh hak VI-see or proh hak vee-chay). Temporary admission of an out-of-juris diction lawyer to practice bet ore a court in a speci fied case or set of cases. See PRO HAC VICE. [Cases: Attorney and Client (;=-10.] 3. Patents. A concession or representation by a patent applicant that an activity, knowledge, or a publication is prior art. An admission requires the U.S. Patent and Trademark Office examiner to consider the relevant item as prior art, even if it does not technically qualify as prior art. Also termed admission ofprior art. [Cases: Patents admission tax. See TAX. admission to bail. An order to release an accused person from custody after payment of bail or receipt of an adequate surety for the person's appearance for trial. See BAIL (1). [Cases: Bail (;=-39.] admission to practice law. See ADMISSION (2). admission to sufficient facts. See SUBMISSION TO A FINDING. admittance. 1. The act of entering a building, locality, or the like. 2. Permission to enter. 3. Hist. The act of giving seisin of a copyhold estate . Admittance cor responded with livery ofseisin ofa freehold. Copyhold estates were abolished by the Law of Property Act of 1922. See COPYHOLD. admitted asset. See ASSET. admitted corporation. See CORPORATION. admittendo clerico (ad-mi-ten-doh kler-d-koh). See DE CLERICO ADMITTENDO. admittendo in socium (ad-mi-ten-doh in soh-shee-dm). [Latin] Hist. A writ for associating certain persons, such as knights, to justices ofassize on the circuit. admixture (ad-miks-chdr). l. The mixing of things. 2. A substance formed by mixing. 55 admonition (ad-ma-nish-;m), n. (14c) 1. Anv authori tative advice or caution from the court t~ the jury regarding their duty as jurors or the admissibility of evidence for consideration <the judge's admoni tion that the jurors not discuss the case until they are charged>. [Cases: Trial C::::> 13

i tion that the jurors not discuss the case until they are charged>. [Cases: Trial C::::> 133.6, 30l.] 2. A reprimand or cautionary statement addressed to counsel by a judge <the judge's admonition that the lawyer stop speaking out of turn>. [Cases: Criminal Law C::::>730; Trial C::::> 133.4.]3. Eccles. law. An authoritatively issued warning or censure. -admonish (ad-mon-ish), vb. admoni tory (ad-mon-a-tor-ee), adj. admonitio trina (ad-ma-nish-ee-oh trI-na), n. [Law Latin "triple warning"] Rist. A threefold warning advising a defendant charged with a capital crime that refusal to answer questions about the offense would in itself be considered a capital crime punishable by death. See PEINE FORTE ET DURE. ad mordendum assuetus (ad mor-den-dam a-swee-tas), adj. [Law Latin] Hist. Accustomed to bite. -This phrase was a common charge in a declaration of damage done by a dog to a person or to another animal. admortization (ad-mor-ta-zay-shan). Hist. The reduc tion ofproperty oflands or tenements to mortmain. adnepos (ad-nep-ohs), n. [Latin] Hist. A great-great grandson. adneptis (ad-nep-tis), n. [Latin] Hist. A great-great granddaughter. adnihilare (ad-nr-ha-Iair-ee), vb. [Law Latin] Hist. To annul; to make void. ad nocumentum (ad nok-yoo-men-tam), adv. [Law Latin] Hist. To the nuisance; to the hurt or injury. ad non executa (ad non ek-sa-kyoo-t<l), adv. [Latin] Hist. For the things not executed (as by an executor). adnotatio (ad-noh-tay-shee-oh), n. [Latin] Roman law. A note written in the margin of a document; esp., the reply of the emperor in his own hand to a petition addressed to him. See RESCRIPT (3). PI. adnotationes (ad-noh-tay-shee-oh-neez). ad omissa vel male appretiata (ad oh-mis-a vel mal-ee a-pree-shee-ay-ta). [Law Latin] Scots law. Concerning things omitted or undervalued. -The phrase refers to an executor's duty to include in an estate's inventory previously omitted items or to reevaluate undervalued items in the estate's inventory. adoptability, n. Family law. 1. A child's availability to be adopted, esp. by reason ofall legal impediments having been removed. 2. The likelihood of a child's being adopted; a prospective adoptee's desirability from the prospective parents' point of view. adoptable, adj. [Cases: Infants C~)155.] adopted child. See CHILD. adoptee. A person who has become the legal child of one or two non biological parents. Also termed adopted child. [Cases: Adoption adoption adoption, n. (I4c) 1. Family law. The creation of a par ent-child relationship by judicial order between two parties who usu. are unrelated; the relation of parent and child created by law between persons who are not in fact parent and child. -This relationship is brought about only after a determination that the child is an orphan or has been abandoned, or that the parents' parental rights have been terminated by court order. Adoption creates a parent-child relationship between the adopted child and the adoptive parents with all the rights, privileges, and responsibilities that attach to that relationship, though there may be agreed exceptions. Adoption is distinguishable from legitimation and from fosterage. Adoption usu. refers to an act between persons unrelated by blood; legitimation refers to an act between persons related by blood. Universally, a decree of adoption confers legitimate status on the adopted child. Adoption is permanent; fosterage is a temporary arrangement for a child's care. See adopted child,foster child under CHILD. Cf. LEGITIMATION (2); FOSTER CARE (1). [Cases: Adoption C::::> 1.] "Although adoption is found in many societies, ancient and modern, primitive and civilized, and is recognized by the civil law, it was unknown at common law. Accordingly, adoption is entirely a creature of statute ...." Elias Clark et aI., Gratuitous Transfers: Wills, Intestate Succession, Trusts, Gifts, Future Interests, and Estate and Gift Taxation Cases and Materials 73~74 (4th ed. 1999). adoption by estoppel. (1933) 1. An equitable adoption of a child by one who promises or acts in a way that precludes the person and his or her estate from denying adopted status to the child. 2. An equitable decree ofadoption treating as done that which ought to have been done. -Such a decree is entered when no final decree of adoption has already been obtained, even though the principal has acted as ifan adoption has been achieved. A petitioner must show an agree ment ofadoption, relinquishment ofparental author ity by the child's biological parents, assumption of parental responsibility by the foster parents, and a de facto relationship of parent and child over a sub stantial period. Such a claim typically occurs when an adoptive parent has died intestate, and the child tries to be named an heir. In a minority ofstates, adoption by estoppel may be a basis for allowing a child to par ticipate in a wrongful-death action. -Also termed equitable adoption; virtual adoption. See ESTOPPEL (1). 3. See de facto adoption. [Cases: Adoption (;::::)6.] adoption by will. Roman law. A posthumous adoption effected by a testator's written statement declaring the intention to adopt and naming the person adopted. The only legal effect ofsuch an adoption was to entitle the adopted person to assume the testator's family name and be regarded as the testator's child. Because the adopted person was never subject to the testator's legal control (patria potestas), the person could not acquire agnatic rights or make a claim on the estate beyond any specific testamentary grants. adult adoption. The adoption ofone adult by another. Many jurisdictions do not allow adult adop tions. Those that do often impose restrictions, as by 56 adoption requiring consent of the person to be adopted, but may not look too closely at the purpose for which adoption is sought. [Cases: Adoption ~5.l agency adoption. An adoption in which parental rights are terminated and legal custody is relinquished to an agency that finds and approves the adoptive parents . An agency adoption can be either public or private. In all states, adoption agencies must be licensed, and in most they are nonprofit entities. Parents who volun tarily place a child for adoption most commonly use a private agency. Cf. private adoption. [Cases: Infants ~226.l black-market adoption. 1. An illegal adoption in which an intermediary (a broker) receives payment for his or her services. 2. Baby-selling. [Cases: Adoption ~ 7.5.] closed adoption. An adoption in which the biologi cal parent relinquishes his or her parental rights and surrenders the child to an unknown person or persons; an adoption in which there is no disclosure ofthe identity of the birth parents, adopting parent or parents, or child . Adoptions by stepparents, blood relatives, and foster parents are exceptions to the no disclosure requirement. Also termed confidential adoption. Cf. open adoption; cooperative adoption. [Cases: Adoption ~7.3.] cooperative adoption. A process in which the birth parents and adoptive parents negotiate to reach a voluntary agreement about the degree and type of continuing contact after adoption, including direct visitation or more limited arrangements such as communication by telephone or mail, the exchange of either identifying or nonidentifying information, and other forms ofcontact. Cf. adoption; closed adoption. [Cases: Adoption de facto adoption. An adoption that falls short of the statutory requirements in a particular state. The adoption agreement may ripen to a de jure adoption when the statutory formalities have been met or if a court finds that the requirements for adoption by estoppel have been met. -Also termed adoption by estoppel. [Cases: Adoption de facto stepparent adoption. See second-parent adoption. direct-placement adoption. See private adoption. embryo adoption. Slang. The receipt of a frozen embryo that is implanted into a recipient's womb . Donors must waive all parental rights before the recipients of the embryo assume legal ownership or custody. The process is not considered to be a legal adoption because American law does not treat embryos as children. [Cases: Adoption equitable adoption. See adoption by estoppel. gray-market adoption. See private adoption. identified adoption. See private adoption. independent adoption. See private adoption. intercountry adoption. See international adoption. international adoption. An adoption in which parents domiciled in one nation travel to a foreign country to adopt a child there, usu. in accordance with the laws of the child's nation . International adoptions first became popular after World War II and escalated after the Korean Conflict because ofthe efforts ofhumani tarian programs working to find homes for children left orphaned by the wars. More recently prospective parents have turned to international adoption as the number of healthy babies domestically available for adoption has steadily declined. -Also termed trans national adoption; intercountry adoption. See MULTI ETHNIC PLACEMENT ACT OF 1994. [Cases: Adoption interracial adoption. See transracial adoption. interstate adoption. An adoption in which the pro spective parents live in one state and the child lives in another state. See INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN. [Cases: Adoption Infants joint adoption. An adoption in which the prospec tive parents apply as a couple and are approved or rejected as a couple, as opposed to filing separate and individual applications to adopt a child . Although the term most often applies to adoption by a married couple, it also applies to an adoption petition by two unmarried partners who are adopting a child. [Cases: Adoption ~4.1 open adoption. An adoption in which the biological mother (sometimes with the biological father) chooses the adoptive parents and in which the child often con tinues to have a post-adoption relationship with his or her biological family . Typically the birth parents meet the adoptive parents and participate in the sepa ration and placement process. The birth parents relin quish all legal, moral, and nurturing rights over the child, but usu. retain the right to continuing contact and to knowledge ofthe child's welfare and location. Cf. closed adoption; cooperative adoption. [Cases: Adoption Cr~6.1 posthumous adoption. An adoption that becomes legally final after the death of either an adoptive parent or the adopted child . Few states recognize posthumous adoptions; most require all parties to an adoption to be alive at the time the final judgment is rendered. [Cases: Adoption C=)4, 5, 20.] private adoption. (1865) An adoption that occurs inde pendently between the biological mother (and some times the biological father) and the adoptive parents without the involvement of an agency. A private adoption is usu. arranged by an intermediary such as a lawyer, doctor, or counselor. Legal custody -though sometimes not physical custody -remains with the biological parent or parents until the termination and adoption are complete. -Also termed private placement adoption; direct-placement adoption; direct adoption; gray-market adoption; identified adoption; independent adoption. Cf. agency adoption. 57 private-placement adoption. See private adoption. pseudo-stepparent adoption. See second-parent adoption. second-parent adoption. An adoption by an unmarried cohabiting partner of a child's legal parent, not involv ing the termination of a legal parent's rights; esp., an adoption in which a lesbian, gay man, or unmarried heterosexual person adopts his or her partner's bio logical or adoptive child. See Restatement (Third) of Property: Wills and Other Donative Transfers 2.5 cmt. i. Although not all jurisdictions recognize sec ond-parent adoption, the practice is becoming more widely accepted. See In re Adoption ofB.L.V.B., 628 A.2d 1271 (Vt. 1993); In re Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993); In re Adoption ofEvan, 583 N.y'S.2d 997 (Sur. Ct. 1992). -Also termed de facto stepparent adoption; pseudo-stepparent adoption. Cf. stepparent adoption. [Cases: Adoption ~4.] stepparent adoption. The adoption of a child by a step father or stepmother . Stepparent adoptions are the most common adoptions in the United States. Cf. second-parent adoption. [Cases: Adoption ~4.] transnational adoption. See international adoption. trans racial adoption. An adoption in which at least one adoptive parent is ofa race different from that ofthe adopted child . Under federal law, child-placement agencies may not use race as a factor in approving adoptions. 42 USCA 5115a. -Also termed inter racial adoption. See MULTIETHNIC PLACEMENT ACT OF 19

a. -Also termed inter racial adoption. See MULTIETHNIC PLACEMENT ACT OF 1994. [Cases: Adoption ~4.] virtual adoption. See adoption by estoppel. wrongful adoption. See WRONGFUL ADOPTION. 2. Roman law. The legal process of creating a parent child relationship with a young person who is still under the power of another father. The adopted person became part of the new paterfamilias's agnatic family with exactly the same standing as children (or grandchildren) by blood. This was later modified by Justinian. 3. Contracts. The process by which a person agrees to assume a contract previously made for that person's benefit, such as a newly formed corporation's acceptance of a preincorporation contract. Cf. ADROGA TION. [Cases: Corporations ~448(2).]4. Trademarks. The mental act necessary to acquire legal rights in a trademark, consisting of knowledge and intention to use a trademark on or in connection with a product or service in commerce. [Cases: Trademarks ~1131, 1135.] 5. Parliamentary law. A deliberative assem bly's approval or endorsement by vote of a motion or report. -Also termed acceptance; consent; passage; ratification. -adopt, vb. -adoptive, adj. adoption agency. A licensed establishment where a bio logical parent can voluntarily surrender a child for adoption. See agency adoption under ADOPTION. Adoption and Safe Families Act. A 1997 federal law that requires states to provide safe and permanent homes for abused and neglected children within shorter periods adoptive parent than those required by earlier state and federal laws . The primary focus is on the safety and well-being of the child, in contrast to the previously paramount rights of the parents. The ASFA signaled a dramatic shift in the philosophy of child-protection proceedings that had controlled since 1980 under the Adoption Assistance and Child Welfare Act. -Abbr. ASFA. See ADOPTION ASSISTANCE AND CHILD WELFARE ACT; FOSTER-CARE DRIFT. [Cases: Infants ~226.] Adoption Assistance and Child Welfare Act. A 1980 federal statute whose purpose was to force states to use reasonable efforts (1) to avoid removing children from their homes, (2) to reunite families when children had been removed because of abuse or neglect, and (3) when reunification failed, to terminate parental rights and place the children in permanent homes. 42 USCA 620 et seq.; 670 et seq . The Act provided funds for foster-care placement, Child Protective Services, family preservation and reunification, and foster care reform to states complying with the Act. Its aim was to prevent the unnecessary removal of children from homes and to hasten the return of children in foster care to their families. It has now been essentially overruled in philosophy by the 1997 enactment of the Adoption and Safe Families Act. See ADOPTION AND SAFE FAMILIES ACT. [Cases: Infants ~155.] adoption-assistance plan. An employer-sponsored program that provides financial assistance to employ ees for adoption-related expenses. adoption by estoppel. See ADOPTION (1). adoption by reference. See INCORPORATION BY REFER ENCE (1). adoption by will. See ADOPTION. adoption-registry statute. A law that provides for the release of adoption information if the biological parent, the adoptive parent, and the adoptee (after he or she reaches a certain statutorily prescribed age) all offi cially record their desire for its release. -Also termed voluntary-registry law. active adoption-registry statute. A registry statute that authorizes a state authority to seek out parties' desires to obtain or release adoption information when one party expresses a desire for that information. passive adoption-registry statute. A registry statute allowing parties to register their desires for release of adoption information after an adopted child reaches a specified age. adoptive admission. See ADMISSION (1). adoptive-admissions rule. (1949) Evidence. The prin ciple that a statement offered against an accused is not inadmissible hearsay ifthe accused is aware of the state ment and has, by words or conduct, indicated accep tance that the statement is true. See adoptive admission under ADMISSION (1). [Cases: Criminal Law~407.] adoptive father. See adoptive parent under PARENT. adoptive mother. See adoptive parent under PARENT. adoptive parent. See PARENT. ad opus 58 ad opus (ad oh-pas), adv. [Law Latin] For the benefit; for the use . This term indicated an intent to create a use to benefit another. See USE (4). ad ostendendum (ad ah-sten-den-dam), vb. [Law Latin] To show. ad ostium ecclesiae (ad ah-stee-am e-klee-z[h]ee-ee), adv. [Law Latin] At the church door. See dower ad ostium ecclesiae under DOWER. ad paratam executionem (ad pa-ray-tam ek-si-kyoo shee-oh-nam). [Law Latin] Hist. For execution on completed diligence . The phrase appeared in judg ments. ad pares casus (ad par-eez kay-sas). [Law Latin] Hist. To similar cases. ad perpetuam rei memoriam (ad par-pech-oo-<lm reC-I ma-mor-ee-am). (Latin] Hist. For a perpetual record of the matter. "By the statute 1685, a register-book is appointed to be kept, in which entails are to be recorded, with the name of the maker, the heirs, the provisions and conditions of the entail, 'all to remain in the said register ad perpetuam rei memoriam.'" John Trayner, Trayners Latin Maxims 29-30 (4th ed. 1894). ad perpetuam remanentiam (ad pJr-pech-oo-Jm rem a-nen-shee-am). [Law Latin] Hist. To remain forever. When a vassal surrendered the right of property to the superior ad perpetuam remanentiam, the surren der was in favor of the superior, as distinguished from a transfer in favorem, in which the vassal transferred the property to the superior to be regranted in favor ofa purchaser. ad pios usus (ad pI-ohs yoo-sas or yoo-zas), adv. [Law Latin] For pious (religious or charitable) uses or purposes. This phrase was used in reference to gifts and bequests. ad pristinum statum (ad pris-ti-n;lm stay-t;lm). [Latin] Hist. To its pristine condition. adpromission (ad-pra-mish-;ln). [fro Latin adpromis sio] Roman law. 1. A suretyship contract in which the surety promises to be liable for no more than the debtor owes. Roman law had three types of adpromission: (1) sponsion; (2) fidepromission; and (3) fidejussion. In addition, mandatum and pactum de constitutio could indirectly be used by way of guarantee. 2. A suretyship relation. Also termed adpromissio. adpromissor (ad-prom-is-;lr), n. [Latin] Roman law. A surety for a debtor under a promise by stipulation. See ADPROMISSION. ad prosequendam (ad prahs-a-kwen-dam), vb. [Law Latin] To prosecute. ad punctum temporis (ad p;lngk-tdm tem-p;l-ris), adv. [Law Latin] At the point oftime. ad quaerimoniam (ad kweer-a-moh-nee-;lm), adv. [Law Latin] On complaint of. ad quem (ad kwem), adv. lLatin] To which. This term is used as a correlative to a quo in computation oftime or distance. For example, the terminus a quo is the point ofbeginning or departure; the terminus ad quem is the end ofthe period or point ofarrival. ad quod curia concordavit (ad kwod kyoor-ee-J kon kor-day-vit). [Law Latin] To which the court ad quod damnum (ad kwod dam-nam). [Latin "to what damage"] Hist. A writ directing the sheriff to inquire of jurors under oath to what damage a grant (as of a fair, market, liberty, or other franchise) would be to various people if the king were to make the grant. The writ was issuable from the court ofchancery. Also termed writ ofad quod damnum. ad quod non juit responsum (ad kwod non fyoo-it ri-spon-s<lm). [Law Latin] To which there was no answer. This phrase was used in law reports to indicate an unresponded-to argument or objection. ADR. abbr. 1. ALTERNATIVE DISPUTE RESOLUTION. 2. ASSET-DEPRECIATION RANGE. 3. AMERICAN DEPOSI TORY RECEIPT. ad rationem ponere (ad ray-shee-oh-nam poh-nd-ree), vb. [Law Latin "to give a reason"] To cite (a person) to appear. The Exchequer summoned persons to appear and explain a charge with this phrase. ad recognoscendum (ad ree-kog-nJ-sen-dam), vb. [Law Latin] To recognize . These were formal words in writs . adrectare (ad-rek-tair-ee), vb. [Law Latin] Hist. To do right; to satisfy. ad rectum (ad rek-tam), vb. [Law Latin] To right; to meet an accusation. ad reparationem etsustentationem (ad rep-J-ray-shee oh-nJm et s;l-sten-tay-shee-oh-nam), adv. [Law Latin] For repairing and keeping in suitable condition. ad reprimendam improbitatem huius generis hominum (ad rep-ri-men-ddm im-proh-bi-tay-tdm hI-dS [or hWI-dS] jen-d-ris hom-d-nam). [Latin] Hist. To repress the dishonesty of this class ofmen. The phrase appeared in reference to obligations that the law imposed on certain persons (such as innkeep ers) because they were in a unique position to receive and misappropriate valuables entrusted to them. Cf. NAUTAE, CAUPONES, STABULARJI. ad respondendum (ad ree-spon-den-ddm). [Latin] To answer. See capias ad respondendum under CAPIAS; habeas corpus ad respondendum under HABEAS CORPUS. ad rimandam veritatem (ad ri-man-dJm ver-i-tay-tam). [Latin] Hist. For the investigation of the truth. Parol testimony was sometimes allowed ad rimandam veri tatem. adrogate (ad-roh-gayt), vb. Roman law. (Of a man) to adopt a son or daughter who is not already under another father's power (patria potestas) . Daughters became eligible for adoption in the later Empire. adrogation (ad-roh-gay-shan), n. [fro Latin arroga tio (a-roh-gay-shee-oh)] Roman law. An adoption of a person of full capacity (sui juris) into another 59 adulterini family. -Also termed adrogatio (ad-roh-gay-shee-oh). Cf. ADOPTION (3). adrogate, vb, "When the person to be adopted was suijuris, and not in the power of a paterfamilias, the ceremony of adoption was called adrogatio." Lord Mackenzie, Studies in Roman Law 132 Uohn Kirkpatrick ed., 7th ed. 1898). ADS. abbr. See AMERICAN DEPOSITARY SHARE. ads. abbr, AD SECTAM. ad satisfaciendum (ad sat-is-fay-shee-en-dam), [Latin] To satisfy. See capias ad satisfaciendum under CAPIAS. adscendentes (ad-sen-den-teez), n. pi. [Latin] Civil law. Ascendants, adscripti glebae (ad-skrip-tI glee-bee), n. [Latin "(tenants) tied to the soW] Roman law. Tenants or serfs bound to the land. Ifthe land was conveved, the serfs were conveyed along with it. Also ter{ued glebae ascriptitii. adscriptitius (ad-skrip-tish-ee-<ls), n. [Latin] Roman law. 1. A supernumerary citizen or soldier. 2. A tenant bound to the land. -Also spelled adscripticius; ascrip ticius. adscriptus (ad-skrip-tas), adj. [Latin] Roman law. 1. Added, annexed, or bound by or in writing; enrolled or registered. 2. Bound, as in servus colonae adscrip Ius (a tenant bound to an estate as a cultivator) or fundus adscriptus (an estate bound to or burdened with a duty). -Also spelled ascriptus; ascriptitius. See ADSCRIPTUS GLEBAE. adscriptus glebae (ad-skrip-t .. s glee-bee). [Latin "(a tenant) tied to the soil"] Roman law. A tenant or serf bound to the land . Ifthe land was conveyed, the serfs were conveyed along with it, but in other respects they were free citizens. Also termed glebae ascriptitius. PI. adscripti glebae. ad sectam (ad sek-t ..m), adj. [Law Latin] At the suit of. This term, in abbreviated form, was used in indexing the names ofcases by defendant -for example, "B ads. !\' ifB is the defendant. Abbr. ads.; adsm. adsessor (

example, "B ads. !\' ifB is the defendant. Abbr. ads.; adsm. adsessor (ad-ses-ar), n. [Latin] 1. Roman law. A legally qualified assistant or adviser to a judge. 2. Hist. Assessor. This was a title ofa master in chancery. Also spelled assessor. ad similes casus (ad sim-<l-Ieez kaY-S<ls). [Law Latin] Hist. To like cases. See CONSIMILI CASU. adsm. abbr. AD SECTAM. adstipulator (ad-stip-Y<l-Iay-t ..r), n, [Latin] Roman law. An additional party to a contract who could enforce the contract along with the principal (i.e., the stipulator) . An adstipulator who enforced an agreement would have to, in turn, pay the stipulator. An adstipulator was brought in to avoid the rule that a person could not directly stipulate for payment after death. ad sustinenda anera matrimonii (ad s<ls-ti-nen-d<l on-<lr- .. ma-tr ..-moh-nee-l). [Latin] Scots law. To bear the burdens or expenses of the married state. The phrase appeared in reference to the purpose for which the dowry was used. ad tentandas vires haereditatis (ad ten-tan-das VI-reez h..-red-i-tay-tis). [Latin] Hist. For the purpose oftesting the strength of the inheritance. ad terminum annorum (ad tar-m ..-n..m <l-nor-<lm), adv. [Law Latin] For a term ofyears. ad terminum qui praeteriit (ad tar-m ..-n..m kWI pri ter-ee-it). [Law Latin "for a term which has passed"] A writ ofentry to recover land leased out to a holdover tenant. -Also termed entry ad terminum qui prae teriit. ad testificandum (ad tes-ti-fi-kan-d .. m). [Latin] To testify. See habeas corpus ad testificandum under HABEAS CORPUS; subpoena ad testificandum under SUBPOENA. ad tunc. [Latin] Then and there. ad tunc et ibidem (ad tangk et i-bI-d ..m or ib-i-d .. m), adv. [Latin] Hist. Then and there being found . This phrase was formerly used in indictments. adult ( ..-dalt or ad-<llt), n. (17c) A person who has attained the legal age ofmajority, generally 17 in criminal cases and 18 for other purposes. -Also termed major. Cf. MINOR (1). [Cases: Infants C:::>1,68.5.] adult (a-dalt), adj. vulnerable adult. An adult who is physically or mentally disabled; esp., one dependent on institu tional services. adult adoption. See ADOPTION. adult correctional institution. See PRISON. adult disabled person. See PERSON (1). adulter (..-dOll-tar), n. [Latinl Roman law. An adulterer; a man guilty of adultery. adultera (a-dal-t ..-r<l), n, [Latin] Roman law. An adulter ess; a woman guilty ofadultery. adulterate ( ..-dal-t;}-rayt), vb. To debase or make impure by adding a foreign or inferior substance. [Cases: Adul teration C:::>4.J adulteration, n. adulterated drug. See DRUG. adulterator (<l-dal-ta-ray-t .. r), n. [Latin fro adulterare "to adulterate"] Civil law. A corrupter; a forger; a coun terfeiter, as in adulteratores monetae ("counterfeiters of money"). adulterine ( .. -dal-ta-rin), adj. 1. Characterized by adul teration. 2. Illegal; unlicensed. 3. Born of adultery. 4. Ofor involving adultery' adulterous, adulterine, n. Archaic. An illegitimate child. adulterine bastard. See BASTARD. adulterine gnild. Hist. A group oftraders who act like a corporation without a charter and who pay an annual fine for permission to exercise their usurped privi leges. adulterini (..-d..l-ta-rI-nI). [Law Latin] Hist. Children begotten adulterously. Cf. INCESTUOSI. 60 adulterium adulterium (ad-al-teer-ee-am), n. [Latin] Roman & civil law. L The crime of adultery. 2. A punishment imposed for the offense of adultery. "Adulterium .... [Aldultery ... was considered a criminal offense only when committed by a married woman (adultera). .. [Before the Lex Julia de adulteriis coercen dis of 18 B.C.], customary law admitted only immediate revenge of the husband .... Under the Julian statute, the father of the adulterous woman was permitted to kill her and her partner (adulter) if he surprised them in his or her husband's house. The husband's rights were rather limited: he was forced to divorce her, for otherwise he made himself guilty of matchmaking [panderingl .. . Besides, he or his father had to accuse the adulteress of adulterium which now became a public crime prosecuted before a criminal court.' Adolf Berger, Encyclopedic Dictionary ofRoman Law 352 (1953). adultery (a-d~l-ta-ree), n. (15c) Voluntary sexual inter course between a married person and someone other than the person's spouse . In many jurisdictions, adultery is a crime, but it is rarely prosecuted. In states that still permit fault divorce, proof of adultery is a ground on which a divorce may be granted. A court may also use proof of adultery as a reason to reduce the offending spouse's marital-property award in a property division. Judges traditionally viewed adultery as a reason for denying the offending spouse primary custody of a child in a child-custody dispute. But today, only the deleterious effect of immoral behavior on the child is typically considered relevant. Formerly also termed spouse-breach; avowtry. Cf. FORNICATION; INFIDELITY. [Cases: Adultery (~=)I; Divorce C:::c26.] adulterous, adj. -adulterer, adulteress, n. "Returning to the question of adultery, evidently this word cannot be interpreted today in precisely the meaning it bore for the Old Testament patriarchs. On Old Testament principles one may marry several wives, even two sisters; and a married man may and should beget children for his dead brother. When Sarah found herself childless, she advised her husband Abraham to go in unto her maid, so that she might obtain children by the maid. Such acts, though evidently not adulterous within the original meaning of the Decalogue, would be regarded as adulter ous by the laws and customs of Western society at the present day." Glanville Williams, The Sanctity of Life and the Criminal Law 134 (1957). "If a statute provided for the punishment of adultery without definition of the term, this gave rise to a difficulty as to the meaning ofthe word. In England, (1) the common law meaning of the word was sex with another'S wife, but this was not a common-law offense: (2) as the name of an offense it referred to sex by a married person with one other than the spouse, but that was recognized only in the ecclesiastical court." Rollin M. Perkins & Ronald N. Boyce, Criminal Law455 (3d ed. 1982). "In some states, sexual intercourse between two married persons, who are not married to each other, constitutes adultery on the part of both; sexual intercourse between a married person and an unmarried person likewise consti tutes adultery on the part of both. In other states, adultery can be committed only by a married person. Thus, sexual intercourse between two married persons, who are not married to each other, constitutes adultery on the part of both; but if only one party to the sexual intercourse is married, the intercourse constitutes adultery on the of the married person and fornication on the part of unmarried person. In other states, sexual intercourse constitutes adultery only where the woman is the married party. Thus. sexual intercourse between a married woman and a married man other than her spouse or sexual inter course between a married woman and an unmarried man constitutes adultery on the part of both; but if the woman is unmarried, neither party is guilty of adultery even if the man is married." 2 Charles E. Torcia, Wharton's Criminal Law 211, at 531 (15th ed. 1994). double adultery. Adultery between persons who are both married to other persons. [Cases: Adultery 1; Divorce incestuous adultery. Adultery between relatives; adultery committed by persons who are closely related. [Cases: Adultery C::::> 1; Incest open and notorious adultery. Archaic. Adultery in which the parties reside together publicly, as if married, and the community is generally aware of the living arrangement and the fact that the couple is not married. [Cases: Marriage C=53.] single adultery. Adultery in which only one of the persons is married. [Cases: Adultery,> I; Divorce C=;>26.] adult offender. See OFFENDER. Adult Protective Services. A governmental agency with responsibility for investigating allegations of elder abuse and neglect and for responding appropriately . Every state has such an agency_ -Abbr. APS_ ad usum et commodum (ad yoo-sam [or -zam] et kom a-dam), adv. [Law Latin) To the use and benefit. ad valentiam (ad v<J-Ien-shee-am), adv. [Law Latin] To the value. ad valorem (ad v<J-lor-am), adj. [Latin "according to the value"] (Of a tax) proportional to the value of the thing taxed. [Cases: Taxation C=:-o2061.] -ad valorem, adv. ad valorem duty. See DUTY (4). ad valorem tariff. See TARIFF (2). ad valorem tax. See TAX. advance, n. (17c) 1. The furnishing of money or goods before any consideration is received in return. 2. The money or goods furnished. advance bill. See BILL (6). advance-decline index. See INDEX (2). advance directive. (1984) 1. A document that takes effect upon one's incompetency and deSignates a sur rogate decision-maker for healthcare matters. _ The Uniform Health-Care Decision Act (1993) states that the power ofattorney for healthcare must be in writing and signed by the principal. Unless otherwise stated, the authority is effective only upon a determination that the principal lacks capacity, and it ceases to be effective once the principal regains his capacity. The agent must make decisions in accordance with the principal's relevant instructions, if there are any, or in the principal's best interests. -Also termed power of attorney for healthcare; healthcare proxy. See POWER OF ATTORNEY; UNIFORM HEALTH-CARE DECISION ACT. 2. A legal document explaining one's wishes about medical treatment if one becomes incompetent or unable to 61 adversarius communicate. -Often shortened to directive. -Also termed medical directive; physician's directive; written directive. See NATURAL-DEATH ACT; PROXY DIREC TIVE. Cf. LIVING WILL. 3. DO-NOT-RESUSCITATE ORDER. [Cases: Health <8='916.] Advanced Television Enhancement Forum. A stan dard-setting organization that defines the protocols for HTML-based enhanced television. -The organiza tion is an alliance ofrepresentatives from broadcast and cable networks, the consumer electronics and personal computer industries, and television-transport compa nies. -Abbr. ATVEF. advance-fee fraud. See FRAUD. advancement, n. (15c) A payment or gift to an heir (esp. a child) during one's lifetime as an advance share of one's estate, with the intention of reducing or extin guishing or diminishing the heir's claim to the estate under intestacy laws. -In some jurisdictions, the donor's intent is irrelevant ifall the statutory elements of an advancement are present. A few jurisdictions define the relationship between the donor and donee to include inter vivos transfers between ancestors and descendants. See SATISFACTION (4). Cf. ADEMPTION. [Cases; Descent and Distribution <8='93-118; Wills <8=' 757-762.] -advance, vb. "It is sometimes difficult to know whether money which a parent has given to his child is an advancement or not, but, generally speaking, an advancement is money which is given either to start a child in life or to provide for him, and does not include casual payments, so that a child is not bound to account for every sum received from a parent." G.c. Cheshire, Modern Law of Real Property 784 (3d ed. 1933). advance payment. See PAYMENT. advance premium. See PREMIUM (1). advance pricing agreement. Tax. A usu. binding arrangement made between a multinational company and one or more national tax authorities about what method the company will use to calculate transfer prices. -The agreement's purpose is to reduce or elimi nate double taxation. -Abbr. APA. bilateral advance pricing agreement. An advance pricing agreement made between a company and two tax authorities. multilateral advance pricing agreement. An advance pricing agreement made between a company and more than two tax authorities. unilateral advance pricing agreement. An advance pricing agreement made

made between a company and more than two tax authorities. unilateral advance pricing agreement. An advance pricing agreement made between a company and one tax authority. _ This does not necessarily allow a company to avoid double taxation. A tax authority that is not a party to the agreement is not bound by the transfer-pricing method specified in the agree ment. advance sheets. (1868) A softcover pamphlet containing recently reported opinions by a court or set of courts. -Advance sheets are published during the interim between an opinion's announcement and its inclusion in a bound volume oflaw reports. Cf. slip opinion (1) under OPINION (1); REPORT (3). [Cases: Courts <8=' 103; Reports "As a bound volume of any series of reports is not published until sufficient matter has accumulated to fill it, it neces sarily results in the holding of the first decisions rendered after the preceding volume has been issued, until there are enough more to justify the publication of the next volume. Even after enough material has been accumulated to fill a volume, there is necessarily considerable time consumed in its printing, indexing, and binding before the book is ready for delivery. Hence, it is customary. as soon as a part of the volume has come from the press, to issue such part in pamphlet form; and these paper-bound copies are known as 'advance sheets.' They are portions of the next volume issued in advance offinal publication, being paged as they will appear in the bound volume. Advance sheets enable the enterprising lawyer to obtain the decisions right down almost to the date of his search for the law." Frank Hall Childs, Where and How to Find the Law 21 (1922). advancing market. See bull market under MARKET. advantagium (ad-van-tay-jee-Jm), n. [Law Latin] Hist. An advantage. advena (ad-vJ-nJ). n. [Latin] Roman law. One who has come from abroad, esp. for a temporary stay; a sojourner. adventitia bona (ad-ven-tish-ee-a boh-nJ). See BONA ADVENTITIA. adventitia dos (ad-ven-tish-ee-a dohs), n. [Latin] Civil law. A dowry given by someone other than the wife's paterfamilias. PI. adventitiae dotes. adventitious property. See PROPERTY. ad ventrem inspiciendum (ad ven-tram in-spish-ee-en dam). n. [Latin] See DE VENTRE INSPICIENDO. adventura (ad-ven-t[y]oor-J). n. [Law Latin] Hist. An adventure. -Flotsam, jetsam, and lagan were styled adventurae maris ("adventures of the sea"). adventure. (17c) 1. A commercial undertaking that has an element of risk; a venture. Cf. JOINT VENTURE. 2. Marine insurance. A voyage involVing financial and insurable risk, as to a shipment of goods. Often shortened to venture. [Cases: Insurance <8='2214.] common adventure. A maritime enterprise, charac terized as an undertaking in which all participants. including the carrier, everyone with an interest in the cargo. and the insurers of all share the risks of the perils ofthe sea. _ The principle of shared risk is fundamental to maritime law. -Also termed joint adventure; common venture. [Cases: Shipping <8=' 186.) gross adventure. A loan on bottomry, so called because the lender will be liable for the gross (or general) average. See BOTTOMRY. joint adventure. 1. See common adventure. 2. See JOINT VENTURE. adventurer. A person who undertakes a hazardous action or enterprise; one with a stake in a commercial adventure. adversarius (ad-vJr-sair-ee-Js). n. [Latin] Roman law. An adversary in a lawsuit. 62 adversary adversary (ad-vdr-ser-ee), n. (14c) An opponent; esp., opposing counsel. -adversary, adversarial, adj. adversary procedure. See ADVERSARY SYSTEM. adversary proceeding. (1744) 1. A hearing involving a dispute between opposing parties <Judge Adams preSided over the adversary proceeding between the landlord and tenant>. 2. Bankruptcy. A lawsuit that is brought within a bankruptcy proceeding, governed by special procedural rules, and based on conflicting claims usu. between the debtor (or the trustee) and a creditor or other interested party <the Chapter 7 trustee filed an adversary proceeding against the party who received $100,000 from the debtor one week before the bankruptcy filing>. [Cases: Bankruptcy ~2156.] adversary system. (1936) A procedural system, such as the Anglo-American legal system, involving active and unhindered parties contesting with each other to put forth a case before an independent decision-maker. Also termed adversary procedure; (in criminal cases) accusatorial system; accusatory procedure. Cf. INQUISI TORIAL SYSTEM. "The term adversary system sometimes characterizes an entire legal process, and sometimes it refers only to criminal procedure. In the latter instance, it is often used interchangeably with an old expression of continental European origin, 'accusatorial procedure,' and is juxta posed to the 'inquisitorial,' or 'nonadversary,' process. There is no precise understanding, however, of the insti tutions and arrangements denoted by these expressions." Mirjan Damaska, "Adversary Procedure," in 1 Encyclope dia ofCrime and Justice 24, 24-25 (Sanford H. Kadish ed., 1983). adverse. I. Against; opposed (to). 2. Having an opposing or contrary interest, concern, or position. 3. Contrary (to) or in opposition (to). 4. HOSTILE. adverse action. A decision or event that unfavorably affects a person, entity, or association. -Common examples of adverse actions include a decrease in one's pay by an employer or a denial ofcredit by a lender. adverse-agent doctrine. The rule that an agent's knowl edge will not be imputed to the principal if the agent is engaged in fraudulent activities that are concealed as part of the fraud. [Cases: Principal and Agent 180.] adverse authority. See AUTHORITY (4). adverse-domination doctrine. The equitable principle that the statute of limitations on a breach-of-fiduciary duty claim against officers and directors (esp. a corpo ration's action against its own officers and directors) is tolled as long as a corporate plaintiff is controlled by the alleged wrongdoers. -The statute is tolled until a majority of the disinterested directors discover or are put on notice ofthe claim against the wrongdoers. The purpose ofthis doctrine is to prevent a director or officer from successfully hiding wrongful or fraudulent conduct during the limitations period. FDIC v. Shrader & York, 991 F,2d 216, 227 (5th Cir. 1993). This doctrine is available only to benefit the corporation. -Also termed adverse dominion; doctrine ofadverse domina tion. [Cases: Limitation of Actions ("'-::::>58(4,5).] adverse dominion. 1. See ADVERSE-DOMINATION DOCTRINE. 2. Torts. Rare. The unlawful exercise of authority or control over goods so that the true owner is dispossessed. See CONVERSION (2). 3. Rare. See ADVERSE POSSESSION. [Cases: Limitation of Actions ~58(4, 5).] adverse easement. See prescriptive easement under EASEMENT. adverse employment action. An employer's decision that substantially and negatively affects an employee's job, such as a termination, demotion, or pay cut. -Also termed adverse job action. adverse enjoyment. See ENJOYMENT. adverse impact. See DISPARATE IMPACT. adverse inference. See INFERENCE. adverse-inference rule. See ADVERSE-INTEREST RULE. adverse interest. (17c) An interest that is opposed or contrary to that ofsomeone else. adverse-interest rule. (1904) The principle that ifa party fails to produce a witness who is within its power to produce and who should have been produced, the judge may instruct the jury to infer that the witness's evidence is unfavorable to the party's case. -Also termed empty-chair doctrine; adverse-inference rule. [Cases: Criminal Law Evidence ~77;Trial ~211.] adverse job action. See ADVERSE EMPLOYMENT ACTION. adverse opinion. See OPINION (2). adverse party. See PARTY (2). adverse possession. (lSc) 1. The enjoyment of real property with a claim ofright when that enjoyment is opposed to another person's claim and is continuous, exclusive, hostile, open, and notorious. _ In Louisiana, it is the detention or enjoyment of a corporeal thing with the intent to hold it as one's own. La. Civ. Code art. 3421. Also termed adverse dominion. Cf. PRESCRIP TION (5). [Cases: Adverse Possession ~1-95.] constructive adverse possession. (1823) 1. Adverse pos session in which the claim arises from the claimant's payment of taxes under color of right rather than by actual possession of the land. 2. Louisiana law. Adverse possession by operation oflaw. _ When a possessor holds title to the property and corporeally possesses part ofit, the possessor is deemed to have constructive possession of the rest of the property described in the title. La. Civ. Code art. 3426. [Cases: Adverse Possession 2. The doctrine by which title to real property is acquired as a result of such use or enjoyment over a specified period of time. See POSSESSION. [Cases: Adverse Possession adverse presumption. See adverse inference under INFERENCE. adverse title. See TITLE (2). 63 ad vitandum perjurium adverse use. See USE (1). adverse witness. See hostile witness under WITNESS. adversus (ad-vdr-s;>s), prep. [Latin] Against. -The first letter of this term was formerly used in law reports in place ofthe more commonly used v. ("versus"). Abbe. a. adversus bonos mores. See CONTRA BONOS MORES. advertent negligence. See NEGLIGENCE. advertising. 1. The action ofdrawing the public's atten tion to something to promote its sale. 2. The business ofproducing and circulating advertisements. comparative advertising. Advertising that specifically compares the advertised brand with another brand of the same product. competitive advertising. AdvertiSing that contains little information about the advertised product, and that is used only to help a producer maintain a share of the market for that product. informative advertising. Advertising that gives information about the suitability and quality of a product. advertising injury. See INJURY. advertiSing substantiation. A doctrine of the Federal Trade Commission making it an unfair and deceptive act to put out an advertisement unless the advertiser first has a reasonable basis for believing that each claim in the advertisement is true. advice (ad-vIs). 1. Guidance offered by one person, esp. a lawyer, to another. See ADVICE OF COUNSEL. 2. Notice of the drawing ofa draft for goods or services. See LETTER OF ADVICE; ADVICE OF CREDIT. -advise (ad-vIz), vb. remittance advice. Notice that a sum of money has been sent (esp. by mail) for goods or services. See REMITTANCE. advice and consent. The right of the U.S. Senate to par ticipate in making and ratifying treaties and appoint ing federal officers, provided by U.S. Const. art II, 2. -As to treaties, the Senate's advice and consent gen erally includes Senate involvement in the negotiation process, and the need for a two-thirds majority of the Senate for ratification. As to public officers, the Senate's advice and consent generally includes the right to vote on approval of an appointment. [Cases: United States (>35; Treaties (>3.] advice ofcounsel. (17c) l. 1be gUidance given by lawyers to their clients. 2. A defense in which a party seeks to avoid liability or punishment by claiming that he or she acted reasonably and in good faith on the attor ney's advice. _ Such a defense usu. requires waiver of the attorney-client privilege, and the attorney cannot have knowingly participated in implementing an illegal plan. [Cases: Criminal Law (>37.20.] 3. In a mali cious-prosecution lawsuit, a defense requiring both a complete presentation of facts by the defendant to his or her attorney and honest compliance with the attorney's advice. See MALICIOUS PROSECUTION. [Cases: Malicious Prosecution (.::::>21, 25(2).] "Advice of counsel is a defense to a limited number of torts involving lack of probable cause, bad faith, or malice as an element of the cause of action. By far the most frequent cause of action against which the defense is asserted is malicious prosecution. The defense may also be asserted to avoid liability for punitive damages on the reasoning that good faith reliance on advice of counsel defeats the malice necessary to an award of punitive damages. In civil matters, the advice is typically obtained from the defen dant's own attorney; when the underlying proceeding is criminal, the advice may be obtained from the district attorney'S office or similar source and may take the form of action by that officer rather than advice followed by action by the defendant." 4 Ann Taylor Schwing, California Affirmative Defenses 41:26, at 8

action by the defendant." 4 Ann Taylor Schwing, California Affirmative Defenses 41:26, at 82 (2d ed. 1996). advice-of-counsel defense. Patents. In an action for infringement, an assertion that after learning ofthe owner's rights, the defendant sought, obtained, and relied on an attorney's well-reasoned opinion before continuing the challenged act. _ Courts treat the asser tion as a factor in determining whether an act was willful (to support enhanced damages). It is not a true defense. Cf. willful infringement under INFRINGEMENT. [Cases: Patents (.::::>227.] advice of credit. Notice by an adviSing bank of the issuance ofa letter ofcredit. Cf. ADVICE. [Cases: Banks and Banking (.::::> 191.10.] ad vindictam publicam (ad vin-dik-t;>m pab-li-kdm). [Latin] Scots law. For vindicating the public interest. The phrase appeared in reference to the purpose for which government prosecuted crimes. advisare (ad-vi-zair-ee), vb. [Law Latin] To consult, deliberate, or consider. See CURIA ADVISARI VULT. advisement (ad-vlZ-mdnt). (l4c) Careful consideration; deliberation <the judge took the matter under advise ment and promised a ruling by the next day>. advisory action. Patents. See advisory office action under OFFICE ACTION. advisory committee. A committee formed to make suggestions to an executive or legislative body or to an official; esp., anyone offive committees that propose to the Standing Committee on Rules of Practice and Procedure amendments to federal court rules, the five committees being responsible for appellate, bankruptcy, dvil, criminal, and evidence rules. [Cases: Federal Civil Procedure (>31.] advisory counseL See COUNSEL advisory jury. See JURY. advisory office action. See OFFICE ACTION. advisory opinion. See OPINION (1). ad vitam (ad vI-t;}m), adj. [Latin] For life. ad vitam aut culpam (ad vI-t;>m awt kal-p;>m), adj. [Law Latin] For life or until misbehavior. -This phrase described a tenure ofoffice. ad vitandum perjurium (ad vI-tan-d;}m p;>r-juur ee-am). [Latin] Scots law. For avoiding perjury. See OB METUM PERJURIL advocacy 64 advocacy. 1. The work or profession ofan advocate. 2. 1he act of pleading for or actively supporting a cause or proposal. advocare (ad-va-kair-ee), vb. [Law Latin) 1. To advocate, defend, or protect. 2. To acknowledge or admit openly, as to acknowledge paternity of a child (advocare filium). advocassie (ad-va-ka-see), n. [Law French] Advocacy. advocata (ad-va-kay-ta), n. [Law Latin] Hist. A patroness; a woman holding the right to present to a church. advocate (ad-va-kit), n. (14c) 1. A person who assists, defends, pleads, or prosecutes for another. public advocate. An advocate who purports to repre sent the public at large in matters of public concern, such as utility rates or environmental quality. 2. Civil & Scots law. A barrister; specif., a member of the Faculty of Advocates (the Scottish counterpart of a barrister) or ofthe Society ofAdvocates in Aberdeen (a society ofsolicitors). A member of the Aberdeen society is designated "advocate in Aberdeen." Cf. BAR RISTER. 3. Hist. Eccles. law. A person who is trained in both canon and secular law and can (1) appear in an ecclesiastical or admiralty court on another's behalf, and (2) give legal advice . Members of the College of Advocates (also known as Doctors' Commons) bore the title ofadvocate. After the dissolution ofthe College in 1857, the term became indistinguishably associ ated with barrister. -advocate (ad-va-kayt), vb. advocacy (ad-va-b-see), n. advocate-depute. Scots law. One ofa number of advo cates appointed by the Lord Advocate to prosecute criminal cases in his or her name. Advocate General. Scots law. An officer appointed under the Scotland Act of 1998 to advise the British govern ment on Scotland and to represent it in court. advocate of the faith. Eccles. law. Counsel for the pros ecution in a heresy trial. advocate's bias. See BIAS. advocate-witness rule. See LAWYER-WITNESS RULE. advocati ecclesiae (ad-va-kay-tI e-klee-z[h]ee-ee), n. pl. [Latin "church advocates"] Hist. Eccles. law. 1. Church patrons who had a right to present a clerk to a benefice. See ADVOWSON. 2. Legal advocates retained to argue cases relating to a church. advocatio (ad-va-kay-shee-oh), n. [Law Latin] Hist. 1. An inferior's management of a business for a superior. 2. The defense ofa religious establishment. 3. ADVOWSON. 4. Civil law. The quality, function, privilege, office, or service of an advocate; legal assistance. advocation (ad-va-kay-shan), n. Scots law. The removal ofa criminal case from a lower court to the High Court ofJusticiary for verdict. advocatione decimarum (ad-va-kay-shee-oh-nee des-a mair-am), n. [Law Latin] Hist. A writ to collect a tithe belonging to the church. advocator (ad-voh-kay-tar), n. [Law Latin] Hist. 1. A person who calls on another to warrant a title. 2. A warrantor. 3. The patron ofa benefice. advocatus (ad-voh-kay-tas). [Latin "advocate"]!. Roman law. A legal adviser; a person who assists clients with cases before judicial tribunals. Cf. CAUSIDICUS. 2. Hist. The patron 'who has an advowson. Also termed advowee; avowee. See ADVOWSO:N. 3. Hist. A person called on by another to warrant a title. advocatus diaboli (ad-voh-kay-tas dI-ab-a-lr), n. [Latin "devil's advocate") Eccles. law. An official who argues against a person's beatification or canonization. advocatus ecdesiae (ad-va-kay-tas e-klee-z[h]ee-ee). [Law Latin] Hist. Eccles. law. The patron ofa benefice. advocatusfisci (ad-voh-kay-tas fisk-I). [Latin] Roman law. An official responsible for representing the emperor in cases involving the public fisc. ad voluntatem (ad vol-an-tay-tam), adv. & adj. [Law Latin] At will. advoutrer (ad-vow-trar), 11. [Law French] Hist. An adul terer. Also termed advouter; advouterer; advoutre. advoutry (ad-vow-tree), 11. [Law French] Hist. Adultery between two married persons. Also spelled advowtry. advowee (ad-vow-ee). A patron who holds an advowson; ADVOCATUS (2). -Also spelled avowee. advowee paramount. The sovereign, or highest patron. advowson (ad-vow-zan). Eccles. law. Ihe right of pre senting or nominating a person to a vacant benefice in the church. The person enjoying this right is called the "patron" (patron us) of the church, and was formerly termed "advocatus:' the advocate or defender, or in English, the "advowee." The patron presents the nominee to the bishop (or, occasionally, another church dignitary). Ifthere is no patron, or ifthe patron neglects to exercise the right within six months, the right lapses and a title is given to the ordinary (usu. the bishop) to appoint a cleric to the church. Cf. PRESENTATION (2); INSTITUTION (5). "A right of presentation has always been regarded as a valuable object of a sale, a species of real property which can be transferred and dealt with generally in the same way as a fee simple estate in lands .... Thus an advowson may be conveyed away in fee simple, fee tail, for life or years, or the conveyance may be limited to the right of next presentation or of a specified number of future pre sentations." G.c. Cheshire, Modern Law of Real Property 1l 0 (3d ed. 1933). "An advowson is the perpetual right of presentation to an ecclesiastical living. The owner of an advowson is known as the patron. When a living becomes vacant, as when a rector or vicar dies or retires, the patron of the living has a right to nominate the clergyman who shall next hold the living. Subject to a right of veto on certain specified grounds, the Bishop is bound to institute (formally appoint) any duly qualified person presented. This is a relic of the days when it was common for the lord of a manor to build and endow a church and in return have the right of patron age." Robert E. Megarry & P.V. Baker, A Manual of the Law ofReal Properev 414 (4th ed. 1969). 65 affecting commerce advowson appendant ("-pen-d,mt). An advowson annexed to a manor, and passing as incident to it, whenever the manor is conveyed to another. -The advowson passes with the manor even ifit is not men tioned in the grant. advowson collative (b-Iay-tiv). An advowson for which there is no separate presentation to the bishop because the bishop happens to be the patron as well. In this case, the one act by which the benefice is conferred is called "collation." advowson donative (don-..-tiv or doh-n..-tiv). An advowson in which the patron has the right to put a cleric in possession by a mere gift, or deed ofdonation, without any presentation to the bishop. -This type of advowson was converted into the advowson presen tative by the Benefices Act of 1898. Also termed donative advowson. "An advowson donative is when the king, or any subject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction. This is said to have been anciently the only way of con ferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of archbishop Becket in the reign of Henry 11." 2 William Blackstone, Commentaries on the Laws of England 23 (1766). advowson in gross. An advowson that is separated from the manor and annexed to a person. All advowsons that have been separated from their original manors are advowsons in gross. advowson presentative (pri-zen-t ..-tiv). The usual kind of advowson, in which the patron has the right to make the presentation to the bishop and to demand that the nominee be instituted, ifthe bishop finds the nominee canonically qualified. donative advowson. See advowson donative. AEA. abbr. See ADMIRALTY EXTENSION ACT. aedes (ee-deez), n. {Latin] Roman law. A building; esp., a temple (aedes sacra). aedificare (ee-da-fi-kair-ee), vb. [Latin] Roman law. To erect a building. aedile (ee-dIl). Roman law. A magistrate charged with policing the city, managing public buildings and services, supervising markets, and arranging public games. Also spelled edile. aedilitium edictum (ee-d..-lish-ee-am ee-dik-tam). See edictum aedilicium under EDICTUM. aegrotus (ee-groh-tas), adj. [Latin] Sick; indisposed by illness. aemulationis causa (ee-my..-Iay-shee-oh-nis kaw-za). [Latin] Hist. For the purpose ofrivaling or annoying. aemulatio vicini (ee-my..-lay-shee-oh vis-i-nee). [Latin] Scots law. The use ofland in a way injurious to a neighbor. aenum. See ordeal by water (2) under ORDEAL. aequitas (ek-wa-tas oree-kwa-tas), n. [Latin] Roman law. Equity, as opposed to jus strictum orjus summum. aequus (ee-kwas), adj. [Latin] Equal; even. _ A provision in a will, for example, might divide the residuary estate ex aequis (the adverbial form) among the legatees. aerarium (i-rair-ee-am), n. [Latin fr. aes "money"] Roman law. The treasury ofthe Roman Republic. See FISCUS. aes (eez), n. [Latin] Roman law. 1. Copper. 2. Money, of whatever metal. aes alienum (eez ay-Iee-ee-nam or al-ee-), n. [Latin "another's money"] Roman law. Money owed to another; borrowed money. aesnecia (ees-neesh-ee-a). [Law Latin] See

owed to another; borrowed money. aesnecia (ees-neesh-ee-a). [Law Latin] See ESNECY. aes suum (eez s[y]oo-am), n. [Latin "one's own money"] Roman law. Money lent to a borrower. aesthetic functionality. See FUNCTIONALITY. aesthetic zoning. See ZONING. aestimatio (es-t..-may-shee-oh). [Latin] Roman law. An agreement by which the owner ofgoods handed them over to another person with the understanding that the other would sell what he could for the most he could get, paying the owner an agreed price for whatever goods sold and returning the others. PI. aestimationes (es-t .. -may-shee-oh-neez). aetas (ee-tas), n. [Latin] Roman law. Age. aetas infantiae proxima (ee-tas in-fan-shee-ee prok sa-m..), n. [Latin] Roman law. The first part of the period of childhood between infancy (up to 7 years) and puberty (12 to 14 years); esp., for males, the period between 7 and 1OY2 years ofage. Cf. AETAS PUBERTATI PROXIMA; PUERITIA. aetas legitima (ee-tas !;'}-jit-a-ma), n. [Latin] Roman law. Lawful age. aetas perfecta (ee-tas par-fek-ta), n. [Latin] Roman law. Complete age; the age ofmajority. aetasprima (ee-tas prl-m..), n. [Latin] Roman law. First age. See INFANTIA. aetas pubertati proxima (ee-tas pyoo-bar-tay-tI prok s..-m..), n. [Latin] Roman law. The second period of childhood, (for males) from 10% to 14 years ofage. Cf. AETAS INFANTIAE PROXIMA; PUERITIA. aetate probanda (ee-tay-tee proh-ban-da). See DE AETATE PROBANDA. AFDC. abbr. AID TO FAMILIES WITH DEPENDENT CHILDREN. athl. abbr. Affirmed. affect, vb. 1. Most generally, to produce an effect on; to influence in some way. 2. Civil law. To pledge (property or revenues) as security for a loan; HYPOTHECATE. 3. Scots law. To seize (debtor's property, etc.). affectation doctrine. See AFFECTS DOCTRINE. affecting commerce. (Of an industry, activity, etc.) touching or concerning business, industry, or trade; esp., under the Labor-Management Relations Act, burdening or obstructing commerce, or having led or tending to lead to a labor dispute that burdens or obstructs the free flow of commerce. 29 USCA 152(7). affection. 1. Fond attachment, devotion, or love <alien ation of affections>. 2. Hist. The pawning or mort gaging of a thing to ensure the payment of money or performance ofsome other obligation. affects doctrine. (1996) Constitutional law. The principle allowing Congress to regulate intrastate activities that have a substantial effect on interstate commerce . The doctrine'is so called because the test is whether a given activity "affects" interstate commerce. Also termed effects doctrine or (erroneously) affectation doctrine. [Cases: Commerce (;:::>7(2).) affectus (<l-fek-tas), n. [Latin] Rist. Intent; disposition of mind. affectus sine effectu (e-fek-tas sl-nee e-fek-t[yJoo). [Latin "an intention without effect") Hist. An intention that is not carried out. affeer (a-feer), vb. [fro Old French. affeurer "to tax"] Hist. To fix the amount ofan amercement. -affeerment, n. affeeror (a-feer-ar), n. Hist. An official responsible for assessing amercements in cases in which no precise penalty is given by statute. affermer (a-f<lr-may), vb. [Law French]l. To let to farm. 2. To make sure; to confirm. aff'g. abbr. Affirming. affiance (<l-fl-ants). 1. Archaic. The act of confiding. 2. The pledging of faith; specif., the act of promising to wed. affiant (<l-fI-;mt). (1S07) 1. One who makes an affida vit. Also termed deponent. [Cases: Affidavits (;:::>2.] 2. COMPLAINANT (2). affidare (af-<l-dair-ee), vb. [Law Latin] To swear faith to; esp., a tenant's pledge offaith to a lord. affidatio dominorum (af-<l-day-shee-oh dom-<l-nor-am), n. [Law LatinJ Hist. An oath taken by lords in Parlia ment. affidatus (af-a-day-tds), n. [Law Latin] Hist. A tenant by fealty. affidavit (af-<l-day-vit). (16c) A voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths . A great deal ofevidence is submitted by affidavit, esp. in pretrial matters such as summary-judgment motions. Cf. DECLARATION (1), (8). [Cases: Affidavits (;:::> 1.] affidavit after appeal. Patents. A sworn statement submitted to the U.S. Patent and Trademark Office after the filing ofa notice of appeal from an adverse determination by an examiner. An affidavit or dec laration submitted after a case has been appealed will not be admitted without a showing ofgood and suffi cient reasons why it was not presented earlier. [Cases: Patents (;:::>111.] affidavit after final rejection. Patents. A sworn state ment submitted to the U.S. Patent and Trademark Office after an application's final rejection. Also termed declaration after final rejection. [Cases: Patents (;:::> 108.] affidavit for the record. An affidavit made by a surveyor or engineer to supplement, correct, update, or other wise alter existing information in official real-estate records. affidavit ofclaim. An affidavit in which a plaintiff asserts that he or she has a meritorious cause of action. [Cases: Pleading affidavit ofcontinued use. See DECLARATION OF USE. affidavit ofdefense. See affidaVit ofmerits. affidavit ofincontestability. See DECLARATION OF INCONTESTABILITY. affidavit ofincrease. Hist. An affidavit that lists and seeks reimbursement from the opposing party for the additional costs (above the filing fee and other basic fees charged by the court clerk) incurred by a party in taking a matter through trial. Attorney fees, witness payments, and the like were included in this affidavit. See COSTS OF INCREASE. affidavit ofinquiry. (1925) An affidavit, required in certain states before substituted service ofprocess on an absent defendant, in which the plaintiff's attorney or a person with knowledge of the facts indicates that the defendant cannot be served within the state. [Cases: Process (;:::>74, 96(4).] affidavit ofmerit. See certificate ofmerit. affidavit ofmerits. An affidavit in which a defendant asserts that he or she has a meritorious defense. Also termed affidaVit ofdefense. [Cases: Judgment <8:::> 160,391.] affidavit ofnonprosecution. An affidavit in which a crime victim requests that the perpetrator not be prosecuted. In many cases, ifthe victim files an affi davit ofnonprosecution, the prosecutor will withdraw or not file criminal charges against the perpetrator on grounds that there is no victim. Sometimes, though, the prosecutor will go forward with the prosecution even ifthe victim files an affidavit ofnonprosecution. [Cases: Criminal Law (;:::>40.] affidaVit of notice. An affidavit stating that the declarant has given proper notice ofhearing to other parties to the action. affidavit ofservice. (ISc) An affidavit certifying the service ofa notice, summons, writ, or process. [Cases: Process (;:::> 137.] affidavit ofuse. See DECLARATION OF USE. affidavit ofverification. See VERIFICATION (1). affidavit under 8. See DECLARATION OF USE. affidavit under 15. See DECLARA nON OF INCONTEST ABILITY. 67 affirmance counteraffidavit. An affidavit made to contradict and oppose another affidavit. [Cases: Affidavits IFP affidavit. See poverty affidavit. in forma pauperis affidavit. See poverty affidavit. pauper's affidavit. See poverty affidavit. poverty affidavit. (1887) An affidavit made by an indigent person seeking public assistance, appoint ment of counsel, waiver of court fees, or other free public services. 28 USCA 1915. -Also termed pauper's affidavit; in forma pauperis affidavit; IFP affidavit. [Cases: Federal Civil Procedure ~2734.1 search-warrant affidavit. An affidavit, usu. by a police officer or other law-enforcement agent, that sets forth facts and circumstances supporting the existence of probable cause and asks the judge to issue a search warrant. [Cases: Searches and Seizures ~105.] self-proving affidavit. (1964) An affidavit attached to a will and Signed by the testator and witnesses certify ing that the statutory requirements of due execution ofthe will have been complied with. -lhe affidavit, which recites the facts ofthe will's proper execution, permits the will to be probated without the necessity ofhaving the witnesses appear and prove due execu tion by their testimony. [Cases: Wills sham affidavit. An affidavit that contradicts clear testimony given by the same witness, usu. used in an attempt to create an issue of fact in response to a motion for summary judgment. [Cases: Federal Civil Procedure ~2539; Judgment ~185.2(8).] supplemental affidavit. An affidavit made in addition to a previous one, usu. to supply additional facts. [Cases: Affidavits ~16.] affidavit for the record. See AFFIDAVIT. affilare (af-d-Iair-ee), vb. [Law Latin] To put on record; to file. affile (d-fIl), vb. Archaic. To file. affiliate (d-fiI-ee-it), n. (I930) 1. A corporation that is related to another corporation by shareholdings or other means ofcontrol; a subsidiary, parent, or sibling corporation. [Cases: Corporations ~1.5.] 2. Securi ties. One who controls, is controlled by, or is under common control with an issuer ofa security. SEC Rule Wb-18(a)(1) (17 CFR 240.Wb-18(a)(1. See CONTROL PERSON. Cf. ASSOCIATED PERSON. -affiliate (a-fil-ee ayt), vb. -affiliation (d-fil-ee-ay-sh;m), n. affiliate click frand. See FRAUD. affiliated director. See outside director under DIRECTOR. affiliated group. A chain ofcorporations that can elect to file a consolidated tax return because at least 80% of each corporation is owned by others in the group. [Cases: Criminal Law ~40.1 affiliated purchaser. See PURCHASER (1). affiliation order. Seefiliation order under ORDER (2). affine (d-fIn). A relative by marriage. affinitas (d-fin-a-tas). [Latin] Roman law. Relationship by marriage. affinitas affinitatis (a-fin-i-tas d-fin-i-tay-tis), n. [Law Latin "affinity of affinity"] Hist. Relationship by two marriages, e.g., with one's stepmother's stepchild; a con nection that arises from marriage but is neither consan guinity nor affinity. Cf. CONSANGUINITY; AFFINITY. affinity (d-fin-a-tee). (14c) 1. A close agreement. 2. The relation that one spouse has to the blood relatives ofthe other spouse; relationship by marriage. 3. Any familial relation resulting from a marriage. Cf. CONSANGUINITY. See relative by affinity under RELATIVE. Cf. AFFINITAS AFFINITATIS; CONSANGUINITY. [Cases: Marriage 10.] 'There is no affinity between the blood relatives of one spouse and the blood relatives of the other. A husband is related by affinity to his wife'S brother, but not to the wife of his wife'S brother. There is no affinity between the hus band's brother and the wife's sister; this is called affinitas affinitatis." 2 Charles E. Torcia, Wharton's Criminal Law 242, at 573 (l5th ed. 1994). collateral affinity. The relationship of a spouse's rela tives to the other spouse's relatives. -An example is a wife's brother and her husband's sister. direct affinity.lhe relationship ofa spouse to the other

a wife's brother and her husband's sister. direct affinity.lhe relationship ofa spouse to the other spouse's blood relatives . An example is a wife and her husband's brother. quaSi-affinity. Civil law. The affinity existing between two persons, one of whom has been engaged to a relative ofthe other. secondary affinity. The relationship ofa spouse to the other spouse's marital relatives. _ An example is a wife and her husband's sister-in-law. affinity fraud. See FRAUD. affirm, vb. (14c) 1. To confirm (a judgment) on appeal. Sometimes, the verb is used without a direct object <We affirm>. The equivalent expression in British English is to deny the appeal. [Cases: Appeal and Error ~ 1124-1145; Criminal Law ~ll82; Federal Courts 926.] 2. To solemnly declare rather than swear under oath. 3. To testify or declare by affirmation. affirmance, n. (16c) l. A ratification, reacceptance, or confirmation. [Cases: Contracts ~97, 134.] "A party who has the power of avoidance may lose it by action that manifests a willingness to go on with the contract. Such action is known as 'affirmance' and has the effect of ratifying the contract. See Restatement of Restitution 68. The rule stated in this Section is a special application of that stated in 85, under which a promise to perform a voidable duty is binding. On ratification, the affirming party is bound as from the outset and the other party continues to be bound." Restatement (Second) of Contracts 380 emt. a (1979). 2. The formal confirmation by an appellate court of a lower court's judgment, order, or decree. [Cases: Appeal and Error ~1124-1145; Criminal Law 1182; Federal Courts ~926.] 3. The manifestation of a choice by someone with the power of avoidance to treat a voidable or unauthorized transaction as valid or authorized. 4. The manifestation ofa choice, by one on 68 affirmance day general whose behalf an unauthorized act has been performed. to treat the act as authorized. Restatement (Second) of Agency 83 (1958). affirm, vb. affirmance day general. See DAY. affirmant. A person who testifies under affirmation and not under oath. [Cases: Witnesses C=-227.J affirmation, n. (lSc) A solemn pledge equivalent to an oath but without reference to a supreme being or to swearing; a solemn declaration made under penalty of perjury, but without an oath. Fed. R. Evid. 603; Fed. R. Civ. P. 43(b). While an oath is "sworn to," an affir mation is merely "affirmed," but either type ofpledge may subject the person making it to the penalties for perjury. Cf. OATH. [Cases: Oath C=-4; Witnesses 227.] affirm, vb. affirmatory, adj. affirmative, adj. (15c) 1. Supporting the existence of certain facts <affirmative evidence>. 2. Involving or requiring effort <an affirmative duty>. affirmative action. (1961) A set of actions designed to eliminate existing and continuing discrimination, to remedy lingering effects ofpast discrimination, and to create systems and procedures to prevent future dis crimination. See reverse discrimination under DISCRIM 1NATION. [Cases: Civil Rights C=-1033(3), 1236.] affirmative charge. See affirmative instruction under JURY INSTRUCTION. affirmative condition. See positive condition under CON DITION (2). affirmative converse instruction. See JURY INSTRUC TION. affirmative covenant. 1. See COVENANT (1). 2. See COVENANT (4). affirmative defense. See DEFENSE (1). affirmative duty. See DUTY (1). affirmative easement. See EASEMENT. affirmative injunction. See mandatory injunction under INJUNCTION. affirmative instruction. See JURY INSTRUCTION. affirmative misconduct. See MISCONDUCT. affirmative plea. See pure plea under PLEA (3). affirmative pregnant. (1807) A positive statement that ambiguously implies a negative; a statement that does not explicitly deny a charge, but instead answers an unasked question and thereby implies culpability, as when a person says "I returned your car yester day" to the charge "You stole my car!" Cf. NEGATIVE PREGNANT. affirmative proof. See PROOF. affirmative relief. See RELIEF. affirmative representation. See REPRESENTATION (1). affirmative servitude. See positive servitude under SER VITUDE (2). affirmative statute. See STATUTE. affirmative testimony. See TESTIMONY. affirmative warranty. See WARRANTY (3). affirmative waste. See commissive waste under WASTE (1). affix (;}-fiks), vb. (16c) 1. To attach, add to, or fasten on permanently. See FIXTURE. 2. Trademarks. To attach, physically or functionally, a trademark or service mark to the goods or services it represents . A mark must be affixed to show that it is used in trade. Where phYSical attachment is impossible or impracticable, the mark may be used on a container or tag, or (esp. with service marks) displayed prominently in advertising. [Cases: Trademarks C=-1l42.] -affixation, n. (af-ik say-shan). affixus (;}-fik-s;}s). [Latin] Roman law. Affixed or fastened to. afforare (af-;}-rair-ee), vb. [Law Latin] To set a price or value on a thing. afforce (;}-fors), vb. To strengthen (a jury) by adding new members. afforcement (;}-fors-m;mt), n. [Law Latin] Hist. 1. A reinforcement or fortification; esp., the reinforcing of a court on a solemn or extraordinary occasion. 2. A fortress. -Also termed afforciament (a-for-sh;}-mant); afforciamentum (a-for-shee-;)-men-t;)m). afforcing the assize. Hist. A method of securing a jury verdict from a hung jury either by denying food and drink to the members until they reached a verdict or by bringing in new jurors until 12 would agree. afforest, vb. To convert (land) into a forest, esp. by sub jecting it to forest law. -afforestation, n. affranchir (a-frahn-sheer). See AFFRANCHISE. affranchise (;)-fran-chIz), vb. Archaic. To set free; to liberate from servitude or an obligation. The equiv alent verb in Law French was affranchir. affray (a-fray). (14c) The fighting, by mutual consent, of two or more persons in some public place, to the terror ofonlookers. The fighting must be mutual. If one person unlawfully attacks another who resorts to self-defense, the first is guilty of assault and battery, but there is no affray. -Also termed fray. Cf. RIOT; unlawful assembly under ASSEMBLY; ROUT. [Cases: Criminal Law C=-45.15.] "An affray differs from a riot, a rout, or an unlawful assembly in that an affray is not premeditated and in order to constitute a riot, a rout, or an unlawful assembly at least three participants are essential, while ... an affray may be committed by only two. Moreover, an affray is more of a private nature than a riot." 2A c.j.S. Affrav 3, at 519 (1972). "The word 'affray' comes from the same source as the word 'afraid,' and the tendency to alarm the community is the very essence of this offense." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 479 (3d ed. 1982). casual affray. See CHANCE-MEDLEY. mutual affray. See MUTUAL COMBAT. affrectamentum (a-frek-ta-men-tam). See AFFREIGHT MENT. 69 against the weight of the evidence affreightment (d-frayt-m;mt). The contracting ofa ship to carry cargo. Also termed charter ofaffreightment; (in French law) affretement; (in Law Latin) affrecta mentum. See CONTRACT OF AFFREIGHTMENT. [Cases: Shipping (;:::>104.] affretement. See AFFREIGHTMENT. a fine force (ay fIn fors). [Law French] Ofpure neces sity. AFIS. abbr. AMERICAN FORCES INFORMATION SERVICE. AFL-CIO. abbr. AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS. AF ofM. abbr. AMERICAN FEDERATION OF MUSICIANS. aforce (ay fors). [Law French] Ofnecessity. aforce et armes (ay fors et ahr-mis). (Law French] With force and arms. Also spelled a force et armis. See VI ET ARMIS. aforesaid (a-for-sed), adj. (l4c) Mentioned above; referred to previously. -Also termed aforementioned; above-mentioned; above-stated; said. aforethought (d-for-thawt), adj. (I6c) Thought of in advance; deliberate; premeditated <malice afore thought>. See MALICE AFORETHOUGHT. a fortiori (ay for-shee-or- I or ah for-shee-or-ee), adv. [Latin] (16c) By even greater force oflogic; even more so <if a 14-year-old child cannot sign a binding contract, then, a fortiori, a 13-year-old cannot>. Cf. A MULTO FORTIORI. African Development Foundation. A nonprofit federal foundation that supports the self-help efforts of poor people in African countries by making grants and by making and guaranteeing loans to any African entity engaged in peaceful activities that enable African people to develop more fully. -ADF was created by the African Development Foundation Act and began operating in 1984. 22 USCA 290h. -Abbr. ADF. after-acquired domicile. See DOMICILE. after-acquired-evidence doctrine. Employment law. The rule that, if an employer discharges an employee for an unlawful reason and later discovers misconduct sufficient to justify a lawful discharge, the employee cannot win reinstatement. _ The doctrine either shields the employer from liability or limits the available relief when, after an employee has been terminated, the employer learns for the first time that the employee engaged in wrongdOing that would have resulted in a discharge anyway. McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, US S.Ct. 879 (1995). [Cases: Labor and Employment (;:::>855.] after-acquired property. 1. Secured transactions. A debtor's property that is acquired after a security trans action and becomes additional security for payment of the debt. UCC 9-204. -Also termed future acquired property. [Cases: Secured Transactions 13,116.] 2. Bankruptcy. Property that the bankruptcy estate acquires after commencement ofthe bankruptcy proceeding. 11 USCA 541(a)(7). [Cases: Bankruptcy (;:::>2558.] 3. Wills & estates. Property acqUired by a person after making a will. -The old rule was that a testamentary gift ofpersonal property spoke at the time ofthe testator's death, whereas a gift oflands spoke from the date of the will's execution (so that after acquired property was not disposed of), but this has been changed by legislation in most states. (Cases: Wills (;:::>8, 578.] after-acquired-property clause. A mortgage provision that makes any later-acquired real estate subject to the mortgage. [Cases: Mortgages (;:::> 131.] after-acquired title. See TITLE (2). after-acquired-title clause. Oil & gas. A provision in an oil-and-gas lease extending the lease's coverage to include any interest in the property that the lessor may obtain after the lease is signed. - A common formula tion is "This lease covers all the interest now owned by or hereafter vested in the lessor ...." [Cases: Mines and Minerals (;:::>73.1.] after-acquired-title doctrine. (1940) The principle that title to property automatically vests in a person who bought the property from a seller who acquired title only after purporting to sell the property to the buyer. [Cases: Vendor and Purchaser (;:::>8,66.] afterborn child. See CHILD. afterborn heir. See HEIR. aftercare. See juvenile parole under PAROLE. after cost. See COST (1). aftermarket. See secondary market under MARKET. after the fact. (16c) Subsequent to an event oflegal sig nificance <accessory after the fact>. AFTRA. abbr. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS. AG. abbr. (1889) ATTORNEY GENERAL. against the form of the statnte. (16c) Contrary to the statutory requirements. -This formal phrase, which traditionally concludes an indictment, indicates that the conduct alleged contravenes the cited statute and there

which traditionally concludes an indictment, indicates that the conduct alleged contravenes the cited statute and therefore constitutes a criminal offense. In modern contexts, the full conclusion often reads: "against the form of the statute in such case made and provided." The phrase is a translation of the Law Latin contra formam statuti. [Cases: Indictment and Information (;:::>32(4).] againstthe peace and dignity ofthe state. (18c) A con cluding phrase in an indictment, used to condemn the offending conduct generally (as opposed to the specific charge of wrongdoing contained in the body of the instrument). -This phrase derives from the Law Latin contra pacem domini regis Cagainst the peace of the lord the king"), a charging phrase formerly used in indict ments and in civil actions oftrespass. Cf. KING'S PEACE. [Cases: Indictment and Information (;:::>32(3).] against the weight ofthe evidence. (I8c) (Of a verdict or judgment) contrary to the credible evidence; not suf 70 against the will ficiently supported by the evidence in the record. See WEIGHT OF THE EVIDENCE. against the will. (1Sc) Contrary to a person's wishes . Indictments use this phrase to indicate that the defen dant's conduct was without the victim's consent agalma (~-gal-m~). [Greek] A figure or design on a seaL agard (~-gahrd). [Law French] An award. See NUL FAIT AGARD. agarder (ah-gahr-day), vb. [Law French] To award, adjudge, or determine; to sentence or condemn. age, n. (Be) A period oftime; esp., a period ofindivid ual existence or the duration of a person's life . In American usage, age is stated in full years completed (so that someone 15 years ofage might actually be 15 years and several months old). State statutes define various types ofages, as shown in the subentries. age ofcapacity. (1847) The age, usu. defined by statute as 18 years, at which a person is legally capable of agreeing to a contract, maintaining a lawsuit, or the like. A person may be authorized to make certain critical personal decisions at an earlier age than the general age ofcapacity, such as the decision whether to bear a child, to donate blood, to obtain treatment for sexually transmitted diseases, to marry, or to write a will. The age ofcapacity to write a will is typically not 18, but 14. Also termed age ofmajority; legal age; lawful age. See CAPACITY (2). [Cases: Infants C=> 1,2.] age ofconsent. (16c) The age, usu. defined by statute as 16 years, at which a person is legally capable of agreeing to marriage (without parental consent) or to sexual intercourse . Ifa person over the age of consent has sexual intercourse with a person under the age ofconsent, the older person may be prosecuted for statutory rape regardless ofwhether the younger person consented to the act. See statutory rape under RAPE. [Cases: Infants Marriage C=>19.] age ofcriminal responsibility. The age at which a child may be held responsible for a criminal act. In American criminal law, some state statutes allow a child as young as 7 to be held responsible (as a juvenile) for some acts. See, e.g., N.D. Cent. Code 12.1-04-01. The minimum age for imposing adult liability is as low as 10. See, e.g., Ind. Code Ann. 31-30-3-4(3). But in some circumstances, at least one state allows an offender to be tried as an adult at any age. See, e.g., Mich. Compo Laws Ann. 712A.2d. [Cases: Marriage 19; Rape age ojdiscretion. 1. The age at which a person is con sidered responsible for certain acts and competent to exercise certain powers. -For example, a person must be a legal adult to be eligible to serve a summons. 2. PUBERTY. age ofmajority. (16c) 1. The age, usu. defined by statute as 18 years, at which a person attains full legal rights, esp. civil and political rights such as the right to vote. The age of majority must be the same for men and women. In almost all states today, the age ofmajority is 18, but the age at which a person may legally purchase and consume alcohol is 21. -Also termed lawful age; legal age. 2. See age ofcapacity. -Also termed (in both senses) full age. [Cases: Child Support Infants Parent and Child C=> 16.] age ofreason. (1884) The age at which a person becomes able to distinguish right from wrong and is thus legally capable of committing a crime or tort. _ The age of reason varies from jurisdiction to jurisdiction, but 7 years is traditionally the age below which a child is conclUSively presumed not to have committed a crime or tort, while 14 years is uSU. the age below which a rebuttable presumption applies. A child of 14 or older has traditionally been considered legally competent to commit a crime and therefore held accountable. With the creation ofjuvenile courts and their inves titure ofdelinquency jurisdiction over children from birth to age 18, these traditional distinctions have nearly vanished. They surface from time to time in murder cases when a juvenile court considers whether to certify or transfer a very young child for trial in criminal court or when a prosecutor seeks to bypass the juvenile court by filing criminal charges against a young child. [Cases: Infants C=>S9, 66.J drinking age. The age at which it is legal to purchase and consume alcoholic beverages in a given jurisdic tion. [Cases: Intoxicating Liquors C=> 159.] fighting age. The age at which a person becomes eligible to serve in (or liable to conscription into) a military unit. [Cases: Armed Services C=>17,20.4(1).] full age. See age ofmajority. lawful age. 1. See age ofcapacity. 2. See age ofmajority (1). legal age. 1. See age ofcapacity. 2. See age ofmajority (1). age discrimination. See DISCRIMINATION. Age Discrimination in Employment Act. A federal law prohibiting job discrimination based on a person's age, esp. unfair and discriminatory employment decisions that negatively affect someone who is 40 years old or older. 29 USCA 621-634. Passed in 1967, the Act applies to businesses with more than 20 employees and to all governmental entities. -Abbr. ADEA. [Cases: Civil Rights C=> 1199.] agency. (17c) 1. A fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalfof another party (the principal) and bind that other party by words or actions. See AUTHORITY (1). [Cases: Principal and Agent "The basic theory of the agency device is to enable a person, through the services of another, to broaden the scope of his activities and receive the product of another's efforts, paying such other for what he does but retaining for himself any net benefit resulting from the work per formed." Harold Gill Reuschlein & William A. Gregory, The Law ofAgency and Partnership 1, at 3 (2d ed. 1990). 71 agency actual agency. (1835) An agency in which the agent is in fact employed by a principaL [Cases: Principal and Agent (;::>96, 99.] agency by estoppel. (1882) An agency created by opera tion oflaw and established by a principal's actions that would reasonably lead a third person to conclude that an agency exists. Also termed apparent agency; ostensible agency; agency by operation oflaw. [Cases: Principal and Agent (;::>25(3), 137.] agency by necessity. See agency ofnecessity. agency by operation oflaw. See agency by estoppel. agency coupled with an interest. (1844) An agency in which the agent is granted not only the power to act on behalf of a principal but also a legal interest in the estate or property involved . This type ofagency is irrevocable before the interest expires, unless the parties agree otherwise when creating the interest. The agency survives even if the principal becomes insane or dies. See power coupled with an interest under POWER (3). [Cases: Principal and Agent (;::> 34,43(2).] agency from necessity. See agency ofnecessity. agency in fact. An agency created voluntarily, as by a contract. Agency in fact is distinguishable from an agency relationship created by law, such as agency by estoppel. [Cases: Principal and Agent (;::>8.] agency ofnecessity. An agency arising during an emer gency that necessitates the agent's acting without authorization from the principal; the relation between a person who in exigent circumstances acts in the interest ofanother without being authorized to do so. It is a quasi-contractual relation formed by the operation oflegal rules and not by the agreement of the parties. Also termed agency from necessity; agency by necessity. See NEGOTIORUM GESTIO. [Cases: Principal and Agent 99.] . apparent agency. See agency by estoppel. exclusive agency. (1805) The right to represent a prin cipal -esp. either to sell the principal's products or to act as the seller's real-estate agent -within a particular market free from competition . Strictly speaking, an exclusive agency merely excludes all other brokers, but not the owner, from selling the products or property. Also termed exclusive agency to sell; exclusive franchise; sole selling agency. Cf. EXCLUSIVE RIGHT OF SALE. "Contracts involving the element of exclusive agency gen erally fall into three classes: (1) where the contract does not prevent the principal from making direct sales but deprives him of the right to appoint other agents; (2) where the agent is the only one with any right to sell; and (3) where the exclusive agency is accompanied with a stipulated right to commissions on all sales whether made through the agent or not." 3 Am.Jur. 2d Agency 268, at 768 (1986). express agency. (18c) An actual agency arising from the principal's written or oral authorization ofa person to act as the principal's agent. Cf. implied agency. [Cases: Principal and Agent (;::>14(1), 99.] financing agency. A bank, finance company, or other entity that in the ordinary course of business (1) makes advances against goods or documents oftitle, or (2) by arrangement with either the seller or the buyer intervenes to make or collect payment due or claimed under a contract for sale, as by purchasing or paying the seller's draft, making advances against it, or taking it for collection, regardless of whether docu ments of title accompany the draft. VCC 2-102(a) (20). general agency. (18c) A principal's delegation to an agent, without restriction, to take any action con nected with a particular trade, business, or employ ment. -Also termed universal agency. [Cases: Principal and Agent (;::>93.] implied agency. (18c) An actual agency arising from the conduct by the principal that implies an intention to create an agency relationship. Cf. express agency. [Cases: Principal and Agent C::::'J 14(1),99.] ostensible agency. See agency by estoppel. special agency. (1808) An agency in which the agent is authorized only to conduct a single transaction or a series oftransactions not involving continuous service. [Cases: Principal and Agent (;::>94.] undisclosed agency. (1871) An agency relationship in which an agent deals with a third party who has no knowledge that the agent is acting on a principal's behalf . The fact that the agency is undisclosed does not prohibit the third party from seeking redress from the principal or the agent. [Cases: Principal and Agent (;::>138-146.] universal agency. See general agency. 2. An agent's place of business. 3. A governmental body with the authority to implement and administer particular legislation. -Also termed (in sense 3) gov ernment agency; administrative agency; public agency; regulatory agency. [Cases: Administrative Law and Pro cedure (;::> 1Ol.] federal agency. (1859) A department or other instru mentality ofthe executive branch of the federal gov ernment, including a government corporation and the Government Printing Office . The Administra tive Procedure Act defines the term agency negatively as being any U.S. governmental authority that does not include Congress, the courts, the government of the District of Columbia, the government of any territory or possession, courts-martial, or military authority. 5 VSCA 551. 1he caselaw on this defini tion focuses on authority: generally, an entity is an agency ifit has authority to take binding action. Other federal statutes define agency to include any executive department, government corporation, government controlled corporation, or other establishment in the executive branch, or federal regulatory board. [Cases: Administrative Law and Procedure (;::> 101; United States (;::>30.] independent agency. (1902) A federal agency, commis sion, or board that is not under the direction of the 72 agency adjudication executive, such as the Federal Trade Commission or the National Labor Relations Board. -Also termed independent regulatory agency; independent regula tory commission. [Cases: United States C=>29.] local agency. A political subdivision ofa state . Local agencies include count

Cases: United States C=>29.] local agency. A political subdivision ofa state . Local agencies include counties, cities, school districts, etc. quasi-governmental agency. (1904) A government sponsored enterprise or corporation (sometimes called a government-controlled corporation), such as the Federal National Mortgage Corporation. [Cases: United States C=>53.] state agency. An executive or regulatory body ofa state. State agencies include state offices, departments, divisions, bureaus, boards, and commissions. -Also termed state body. [Cases: States C=>45.] agency adjudication. See ADMINISTRATIVE PROCEED ING. agency adoption. See ADOPTION. Agency for Healthcare Research and Quality. An agency in the U.S. Department ofHealth and Human Services responsible for conducting research into improving the quality of health care, reducing its cost, and broadening access to essential healthcare services. Agency for International Development. See UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT. Agency for Toxic Substances and Disease Registry. An agency in the U.S. Department of Health and Human Services responsible for evaluating the impact on public health of the release of hazardous substances into the environment, for maintaining a registry of contami nated waste sites, and for conducting research on the effects of hazardous substances on human health. - Abbr. ATSDR. [Cases: Environmental Law C=>436.] agency jurisdiction. See JURISDICTION. agency records. Under the Freedom ofInformation Act, documents that are created or obtained by a govern ment agency, and that are in the agency's control at the time the information request is made. 5 USCA 552; United States Dep't ofJustice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. 2841 (1989). [Cases: Records C=>54.] agency regulation. See REGULATION (3). agency security. See government security under SECURITY. agency shop. See SHOP. agency-shop membership. See FINANCIAL-CORE MEM BERSHIP. agenda. A list of things to be done, as items to be con sidered at a meeting, usu. arranged in order ofconsid eration. -Also termed calendar; calendar ofbusiness; order ofbusiness. Cf. PROGRAM (1). action agenda. See action calendar under CALENDAR (4). consent agenda. See consent calendar under CALENDAR (4). debate agenda. See debate calendar under CALENDAR (4). final agenda. An agenda that a deliberative assembly has adopted, or that has been adopted for a delib erative assembly by an officer or board charged with setting such an agenda. proposed agenda. An agenda offered, usu. with the notice calling the meeting that the agenda covers, for a deliberative assembly's consideration. -Also termed tentative agenda. report agenda. See report calendar under CALENDAR (4). special-order agenda. See special-order calendar under CALENDAR (4). tentative agenda. See proposed agenda. unanimous-consent agenda. See consent calendar under CALENDAR (4). agens (ay-jenz). [Latin] 1. One who acts or does an act; an agent. Cf. PATIENS. 2. A plaintiff. agent. (15c) 1. Something that produces an effect <an intervening agent>. See CAUSE (1); ELECTRONIC AGENT. 2. One who is authorized to act for or in place of another; a representative <a professional athlete'S agent>. -Also termed commissionaire. Cf. PRINCIPAL (1); EMPLOYEE. [Cases: Principal and Agent C=> 1,3.] "Generally speaking, anyone can be an agent who is in fact capable of performing the functions involved. The agent normally binds not himself but his principal by the contracts he makes; it is therefore not essential that he be legally capable to contract (although his duties and liabili ties to his principal might be affected by his status). Thus an infant or a lunatic may be an agent, though doubtless the court would disregard either'S attempt to act as if he were so young or so hopelessly devoid of reason as to be completely incapable of grasping the function he was attempting to perform." Floyd R. Mechem, Outlines of the Law ofAgency 8-9 (Philip Mechem ed., 4th ed. 1952). "The etymology of the word agent or agency tells us much. The words are derived from the Latin verb, ago, ague; the noun agens, agentis. The word agent denotes one who acts, a doer, force or power that accomplishes things." Harold Gill Reuschlein & William A. Gregory, The Law of Agency and Partnership I, at 2-3 (2d ed. 1990). apparent agent. (1823) A person who reasonably appears to have authority to act for another, regard less of whether actual authority has been conferred. Also termed ostensible agent. [Cases: Principal and Agent C=>99.] bail-enforcement agent. See BOUNTY HUNTER. bargaining agent. A labor union in its capacity ofrep resenting employees in collective bargaining. [Cases: Labor and Employment C=> 1160.] broker-agent. See BROKER. business agent. See BUSINESS AGENT. clearing agent. Securities. A person or company acting as an intermediary in a securities transaction or pro viding facilities for comparing data regarding securi ties transactions . The term includes a custodian of securities in connection with the central handling 73 agent of securities. Securities Exchange Act 3(a)(23)(A) (15 USCA 78c(a)(23)(A. -Also termed clearing agency. [Cases: Securities Regulation (::::>60.32, 185.16.] closing agent. See settlement agent. co-agent. A person who shares with another agent the authority to act for the principal. -Also termed dual agent. Cf. common agent. commercial agent. 1. BROKER. 2. A consular officer responsible for the commercial interests ofhis or her country at a foreign port. 3. See mercantile agent. common agent. An agent who acts on behalfof more than one principal in a transaction. Cf. co-agent. corporate agent. (1819) An agent authorized to act on behalf of a corporation; broadly, all employees and officers who have the power to bind the corporation. [Cases: Corporations (::::>397-399.] county agent. See juvenile officer under OFFICER (1). del credere agent (delkred-d-ray or kray-dd-ray). (1822) An agent who guarantees the solvency of the third party with whom the agent makes a contract for the principal. _ A del credere agent receives possession of the principal's goods for purposes ofsale and guaran tees that anyone to whom the agent sells the goods on credit will pay promptly for them. For this guaranty, the agent receives a higher commission for sales. The promise of such an agent is almost universally held not to be within the statute offrauds. -Also termed del credere factor. [Cases: Factors (::::>29.] diplomatic agent. A national representative in one of four categories: (1) ambassadors, (2) envoys and ministers plenipotentiary, (3) ministers resident accredited to the sovereign, or (4) charges d'affaires accredited to the minister offoreign affairs. [Cases: Ambassadors and Consuls (::::> 1-8.] double agent. See dual agent (2). dual agent. 1. See co-agent. 2. An agent who repre sents both parties in a single transaction, esp. a buyer and a seller. Also termed (in sense 2) double agent. [Cases: Brokers (::::>32.] emigrant agent. One engaged in the business ofhiring laborers for work outside the country or state. enrolled agent. See ENROLLED AGENT. escrow agent. The third-party depositary ofan escrow; ESCROW (3). -Also termed escrow holder; escrowee; escrow officer. [Cases: Deposits and Escrows (::::> 13.] fiscal agent. A bank or other financial institution that collects and disburses money and services as a deposi tory ofprivate and public funds on another's behalf. foreign agent. A person who registers with the federal government as a lobbyist representing the interests of a foreign nation or corporation. forwarding agent. 1. See FREIGHT FORWARDER. 2. A freight-forwarder who assembles less-than-carload shipments (small shipments) into carload shipments, thus taking advantage oflawer freight rates. [Cases: Carriers (::::>178.] general agent. (17c) An agent authorized to transact all the principal's business of a particular kind or in a particular place. _ Among the common types ofgeneral agents are factors, brokers, and partners. [Cases: Insurance (::::> 1634(2); Principal and Agent (::::>93.] "Although the distinction between general and special agents can be difficult to apply, the terminology is some times used by courts and the distinction plays a major role in the Restatement of Agency. A general agent ... is an integral part of the principal's business and does not need fresh authorization for each separate transaction. A manager of a store is an example of a general agent." J. Dennis Hynes, Agency, Partnership, and the LLC in a Nutshell21 (1997). government agent. (1805) 1. An employee or repre sentative of a governmental body. [Cases: United States (::::> 36.] 2. A law-enforcement official, such as a police officer or an FBI agent. 3. An informant, esp. an inmate, used by law enforcement to obtain incriminating statements from another inmate. An accused's Sixth Amendment right to counsel is triggered when the accused is questioned by a gov ernment agent. high-managerial agent. An agent of a corporation or other business, having authority to formulate corpo rate policy or supervise employees. Also termed superior agent. independent agent. (17c) An agent who exercises personal judgment and is subject to the principal only for the results of the work performed. Cf. non servant agent. innocent agent. (1805) Criminal law. A person whose action on behalf of a principal is unlawful but does not merit prosecution because the agent had no knowl edge of the principal's illegal purpose; a person who lacks the mens rea for an offense but who is tricked or coerced by the principal into committing a crime. Although the agent's conduct was unlawful, the agent might not be prosecuted if the agent had no knowl edge ofthe principal's illegal purpose. The principal is legally accountable for the innocent agent's actions. See Model Penal Code 2.06(2)(a). [Cases: Criminal Law (::::>59(4).] insurance agent. See INSURANCE AGENT. jural agent. See rURAL AGENT. land agent. See LAND MANAGER. listing agent. (1927) The real-estate broker'S representa tive who obtains a listing agreement with the owner. Cf. selling agent. [Cases: Brokers local agent. An agent appointed to act as another's (esp. a company's) representative and to transact business within a specified district. [Cases: Principal and Agent (::::>1, 50.] managing agent. (1812) A person with general power involVing the exercise of judgment and discretion, as opposed to an ordinary agent who acts under the agent 74 direction and control of the principal. -Also termed business agent. [Cases: Principal and Agent C=>50.] mercantile agent. An agent employed to sell goods or merchandise on behalf of the principal. -Also termed commercial agent. nonservant agent. An agent who agrees to act on the principal's behalf but is not subject to the principal's control over how the task is performed. A princi pal is not liable for the physical torts ofa non servant agent. See INDEPENDENT CONTRACTOR. Cf. indepen dent agent; SERVANT. [Cases: Principal and Agent C=> 1.] ostensible agent. See apparent agent. patent agent. A specialized legal professional -not necessarily a licensed lawyer -who prepares and prosecutes patent applications before the Patent and Trademark Office. Patent agents must be licensed by the Patent and Trademark Office. -Also termed patent solicitor; registered patent agent. [Cases: Patents C=>97.] primary agent. An agent who is directly authorized by a principal. A primary agent generally may hire a subagent to perform all or part of the agency. Cf. subagent. [Cases: Principal and Agent C=> 1.] private agent. An agent acting for an individual in that person's private affairs. [Cases: Principal and Agent C=>92(3).] process agent. (1886) A person authorized to accept service of process on behalf of another. [Cases: Cor porations C=>668(4); Federal Civil Procedure C=>500, 503; Process C=>58.] procuring agent. A person who obtains drugs on behalf of another person and delivers the drugs to that person. In criminal-defense theory, the procuring agent does not sell, barter, exchange, or make a gift of the drugs to the other person because the drugs already belong to that person, who merely employs the agent to pick up and deliver them. [Cases: Con trolled Substances C=>47.] public agent. A person appointed to act for the public in matters pertaining to governmental administra tion or public business. [Cases: Officers and Public Employ

the public in matters pertaining to governmental administra tion or public business. [Cases: Officers and Public Employees C=> 1.] real-estate agent. An agent who represents a buyer or seller (or both, with proper disclosures) in the sale or lease ofreal property . A real-estate agent can be either a broker (whose principal is a buyer or seller) or a salesperson (whose principal is a broker). Cf. REALTOR. [Cases: Brokers C=>6.] record agent. See INSURANCE AGENT. registered agent. (1809) A person authorized to accept service of process for another person, esp. a corpo ration, in a particular jurisdiction. -Also termed resident agent. [Cases: Corporations C=>507(5), 668(4); Federal Civil Procedure C=>444, 498, 499; Process C=>58.] selling agent. (1839) The real-estate broker'S represen tative who sells the property, as opposed to the agent who lists the property for sale. Cf. LISTING AGENT. [Cases: Brokers C=> 18.] settlement agent. An agent who represents the pur chaser or buyer in the negotiation and closing of a real-property transaction by handling financial cal culations and transfers of documents. -Also termed closing agent. See also settlement attorney under ATTORNEY. [Deposits and Escrows C=> 13.] soliciting agent. 1. Insurance. An agent with limited authority relating to the solicitation or submission of applications to an insurance company but usu. without authority to bind the insurer, as by accept ing the applications on behalf of the company. [Cases: Insurance C=>1634(3).] 2. An agent who solicits orders for goods or services for a principal. 3. A managing agent of a corporation for purposes of service of process. [Cases: Corporations C=>668(5).] special agent. 1. An agent employed to conduct a par ticular transaction or to perform a specified act. [Cases: Principal and Agent C=>94.] 2. See INSUR ANCEAGENT. specially accredited agent. An agent with whom a third person has been specially invited to deal by the prin cipal under circumstances leading the third person to believe that he or she will be notified ifthe authority is altered or revoked. statutory agent. (1844) An agent deSignated by law to receive litigation documents and other legal notices for a nonresident corporation . In most states, the secretary of state is the statutory agent for such cor porations. [Cases: Corporations C=>507(5, 12),646, 668(14).] stock-transfer agent. An organization that oversees and maintains records of transfers ofshares for a cor poration. [Cases: Corporations C=> 128.1.] subagent. A person to whom an agent has delegated the performance ofan act for the principal; a person designated by an agent to perform some duty relating to the agency . Ifthe principal consents to a primary agent's employment of a subagent, the subagent owes fiduciary duties to the principal, and the principal is liable for the subagent's acts. Cf. primary agent. Also termed subservant. [Cases: Principal and Agent C=>73.] "By delegation ... the agent is permitted to use agents of his own in performing the function he is employed to perform for his principal, delegating to them the discretion which normally he would be expected to exercise person ally. These agents are known as subagents to indicate that they are the agent's agents and not the agents of the prin cipal. Normally (though of course not necessarily) they are paid by the agent. The agent is liable to the principal for any injury done him by the misbehavior of the agent's sub agents." Floyd R. Mechem, Outlines of the Law ofAgency 79, at 51 (Philip Mechem ed., 4th ed. 1952). successor agent. An agent who is appointed by a prin cipal to act in a primary agent's stead if the primary agent is unable or unwilling to perform. 75 aggravating factor superior agent. See high-managerial agent. transfer agent. An organization (such as a bank or trust company) that handles transfers ofshares for a publicly held corporation by issuing new certificates and overseeing the cancellation of old ones and that usu. also maintains the record ofshareholders for the corporation and mails dividend checks . Generally, a transfer agent ensures that certificates submitted for transfer are properly indorsed and that the right to transfer is appropriately documented. [Cases: Cor porations ~128.1.] undercover agent. (1930) 1. An agent who does not disclose his or her role as an agent. 2. A police officer who gathers evidence ofcriminal activity without dis closing his or her identity to the suspect. universal agent. (l8c) An agent authorized to perform all acts that the principal could personally perform. [Cases: Principal and Agent ~50.] vice-commercial agent. Hist. In the consular service ofthe United States, a consular officer who was sub stituted temporarily to fill the place of a commer cial agent who was absent or had been relieved from duty. 3. Patents. A person who is not an attorney but who has fulfilled the U.S. Patent and Trademark Office require ments as a lay representative and is registered to prepare and prosecute patent applications before the PTO . To be registered to practice before the PTO, a candi date must establish mastery ofthe relevant technology (by holding a specified technical degree or equivalent training) in order to advise and assist patent applicants. The candidate must also pass a written examination (the "Patent Bar") that tests knowledge of patent law and PTO procedure. -Also termed patent agent. Cf. PATENT ATTORNEY. [Cases: Patents ~97.] agent not recognized. Patents. A patent applicant's appointed agent who is not registered to practice before the U.S. Patent and Trademark Office . A power ofattorney appointing an unregistered agent is void. associate agent. An agent who is registered to practice before the U.S. Patent and Trademark Office, has been appointed by a principal agent, and is authorized to prosecute a patent application through the filing ofa power ofattorney . An associate agent is often used by outside counsel to assist in-house counsel. agent provocateur (ay-jant pra-vok-a-t,}r or a-zhawn praw-vaw-ka-tuur), n. (1877) 1. An undercover agent who instigates or participates in a crime, often by infil trating a group suspected ofillegal conduct, to expose and punish criminal activity. 2. A person who entraps another, or entices another to break the law, and then informs against the other as a lawbreaker. agent's lien. See LIEN. agent's power. See POWER (3). age ofcapacity. See AGE. age ofconsent. See AGE. age ofcriminal responsibility. See AGE. age ofdiscretion. See AGE. age ofmajority. See AGE. age ofreason. See AGE. ager (ay-jar), n. [Latin] Roman law. Land or territory; esp., a portion of land enclosed by definite boundar ies. ager arcifinius (ay-jar ahr-si-fin-ee-as). [Latin "land having irregular boundaries; unsurveyed land"] Roman law. Land enclosed only as a means of iden tification, not as a limit. PI. agri arcifinii. Cf. ager limitatus. ager limitatus (ay-jar lim-i-tay-tas). [Latin "field limited" or "land enclosed by boundaries"] Roman & civil law. Land with settled boundaries; esp., land whose boundaries have been fixed by a surveyor . The term applied to land belonging to the state by right of conquest, then granted and sold in individual plots. Cf. ager arcifinius. Pl. agri limitaU (ag-n lim i-tay-tI). "The agri limitati of the Roman law were lands detached from the public domain, and converted into private property, by sale or grant, beyond the limits of which the owners could claim nothing." John Trayner, Trayner's Latin Maxims 36 (4th ed. 1894). ager publicus (ay-jar pab-li-kas). Land of the people; public land. aggravated, adj. (17c) 1. (Of a crime) made worse or more serious by circumstances such as violence, the presence of a deadly weapon, or the intent to commit another crime <aggravated robbery>. Cf. SIMPLE (1). 2. (Of a tort) made worse or more serious by circumstances such as intention to cause harm or reckless disregard for another's safety <the defendant's negligence was aggravated by malice>. [Cases: Negligence ~272- 276.] 3. (Of an injury) harmful to a part of the body previously injured or debilitated <an aggravated bone fracture>. See AGGRAVATION RULE. [Cases: Damages (;::::;;;58.] aggravated arson. See ARSON. aggravated assault. See ASSAULT. aggravated battery. See BATTERY. aggravated damages. See punitive damages under DAMAGES. aggravated kidnapping. See KIDNAPPING. aggravated larceny. See LARCENY. aggravated misdemeanor. See serious misdemeanor under MISDEMEANOR. aggravated robbery. See ROBBERY. aggravated sodomy. See SODOMY. aggravating circumstance. See CIRCUMSTANCE. aggravating element. See aggravating circumstance under CIRCUMSTANCE. aggravating factor. See aggravating circumstance under CIRCUMSTANCE. 76 aggravation. 1. The fact of being increased in gravity or seriousness. 2. Eccles. law. A censure threatening the recipient with an increase in the penalties associ ated with excommunication, usu. because the recipi ent disregarded an earlier sentence . For example, a person who spurned a sentence of excommunication might be subjected to an anathema (a formal ban or curse). aggravate, vb. aggravation rule. Workers' compensation. The principle that when an on-the-job injury combines with a pre existing injury, resulting in a greater disability than that which would have resulted from the on-the-job injury alone, the entire disability is compensable as if it had occurred at work. [Cases: Workers' Compensa tion (;::;:)552.] aggravator. 1. One who commits a crime with an aggra vating circumstance. [Cases: Sentencing and Punish ment C=>S3, 1652.] 2. See aggravating circumstance under CIRCUMSTANCE. Cf. MITIGATOR. aggregate (ag-ra-git), adj. (15c) Formed by combining into a Single whole or total <aggregate income>. aggregately, adv. aggregate (ag-rd-git), n. An assemblage of particulars; an agglomeration <aggregate ofinterests>. aggregate (ag-rd-gayt), vb. To collect into a whole <aggre gate the claims>. aggregate concept. Tax. An approach to taxing business organizations whereby an organization is viewed as a collection of its individual owners, not as a separate taxable entity. [Cases: Internal Revenue C=>3879; Taxation C=>3485.] aggregate corporation. See CORPORATION. aggregate demand. See DEMAND (4). aggregate income. See INCOME. aggregate sentence. See SENTENCE. aggregate supply. See SUPPLY. aggregate theory ofpartnership. (1913) The theory that a partnership does not have a separate legal existence (as does a corporation), but rather is only the totality ofthe partners who compose it. Cf. ENTITY THEORY OF PARTNERSHIP. [Cases: Partnership C=>63.] aggregatio mentium (ag-ra-gay-shee-oh men-shee-dm). [Latin "gathering together ofminds"] See MEETING OF THE MINDS. aggregation. Patents. 1. A set ofparts that do not cooper ate in structure or function, and are therefore unpatent able as an invention; the opposite ofa combination. [Cases: Patents C=>25.] 2. Hist. A patent examiner's label for a claimed invention that mayor may not be a patentable combination but whose claims do not clearly explain how the parts cooperate to produce a new or unexpected result . As a term ofart, aggregation lost its usefulness when it was replaced by a statutory test in 103 ofthe Patent Act of1952. -Also termed jux taposition. Cf. COMBINATION (4). "I think of a football team as a combination; one passes, one receives, another runs, and still others hold the line. Eleven men are dOing different things, each in his own way, and not always simultaneously; yet they are working to a common end, to advance the ball; and they coact as a unit. I think of a track team as an aggregation; one runs, another hurdles, another jumps, another throws. They all work for a common general end, to amass points for their alma mater; but there is lacking the vital spark of cooperation or coordination. They work, not as one unit, but as several." Skinner v. Oil, 54 F.2d 896, 898-99 (10th Or. 1931). 'The mere combining of old machine parts, each operat ing in the old way and accomplishing the old result, is an aggregation, and hence unpatentable; whereas, if a new result be produced by the joint action of the elements, and if such a result be not the mere adding together of the contributions of the separate elements, then there exists a patentable combination." Roger Sherman Hoar, Patent Tactics and the Law

the separate elements, then there exists a patentable combination." Roger Sherman Hoar, Patent Tactics and the Law 38 (3d ed. 1950). aggregation doctrine. (1942) 1. The rule that precludes a party from totaling all claims for purposes ofmeeting the minimum amount necessary to give rise to federal diversity jurisdiction under the amount-in-controversy reqUirement. See diversity jurisdiction under JURIS DICTION; AMOUNT IN CONTROVERSY. [Cases: Federal Courts C=>344.] 2. Constitutional law. A rule that allows Congress, under its Commerce Clause powers, to regulate purely private acts, such as growing wheat for one's own consumption, if the consequences of many such acts, taken together, would have an effect on interstate commerce. See Wickard v. Filburn, 317 U.S. lll, 63 S.Ct. 82 (1942). [Cases: Commerce C=>7(2).] aggregation ofclaims. Patents. In a patent application, an excessive number of claims that do not differ sig nificantly in scope and are essentially duplicative . Although a patent applicant may claim an invention and its various features in a reasonable number ofways, each claim must differ materially from the others. Also termed multiplicity ofclaims; undue multiplicity ofclaims. [Cases: Patents (;::;>124.] aggregation rejection. See REJECTION. aggression. Int'llaw. A grave breach ofinternational law by a nation. The prohibition ofaggression is a peremptory rule (jus cogens). Aggressors are guilty ofan international crime. But there is no generally accepted definition ofwhat constitutes aggression despite many attempts over the years to devise one. In 1974, the United Nations General Assembly adopted a Resolu tion on the Definition of Aggression (Resolution 3314 (XXIX) of December 14, 1974). It defines aggression, in part, as "the use of armed force by a State against the sovereignty, territorial integrity, or political inde pendence ofanother country, or in amanner inconsis tent with the Charter ofthe United Nations ...." The definition does not extend to measures that, in certain circumstances, might constitute aggression, nor does it recognize exceptional circumstances that would make the enumerated acts defensive rather than offen sive. The U.N. Security Council has never expressly relied on the resolution when determining whether a nation's acts constitute a "threat to the peace, breach of the peace, or act of aggression." See U.N. Charter art. 77 39, 59 Stat. 1031. The difficulty of finding a generally accepted definition ofaggression is reflected in Article 5 ofthe Statute ofthe International Criminal Court (37 LL.M. 999). It confers jurisdiction on the Court over "the crime of aggression" but also requires the parties to the Statute to define the crime before the Court can exercise jurisdiction. [Cases: War and National Emer gency (>1, 19.] "Although classical aggression has generally been thought to involve direct military operations by regular national forces under government control, today subjugation and control of peoples may well result from resort to nonmili tary methods. Economic pressures on the other states; demands couched in traditional diplomatic terms but laden with implied threats to compel action or inaction; fifth column activities; the endless propaganda harangue urging another state's peoples to rise against their government; the aiding and abetting of rebel bands intent on overthrow ing another government; and a wide range of other modern techniques must be included in the concept of aggression in so far as they are delicts at international law, for they are directed against the sovereign independence of a state." Ann Van Wynen Thomas & A.J. Thomas Jr., The Concept of Aggression in International Law69 (1972). direct aggression. Aggression in which a state's regular armed forces participate. indirect aggression. Aggression carried out by some means other than through a state's regular armed forces. "[I]ndirect aggression would seem to have two prime meanings: (1) delictual acts armed or unarmed and con ducted vicariously by the aggressor state through third parties which endanger the essential rights of a state, rights upon which its security depends, and (2) delictual acts taken directly by the governing authorities of a state against another state or vicariously through third-party groups which do not involve the use of armed force, but which do endanger the essential rights of a state upon which its security depends. No directly military opera tions by the regular armed forces of a state are involved in either case; therefore the aggression can be regarded as an indirect method of constraint carried on by the aggres sor state." Ann Van Wynen Thomas & AJ. Thomas Jr., The Concept ofAggression in International Law 69 (1972). aggressor corporation. See CORPORATION. aggressor doctrine. (1947) The principle precluding tort recovery for a plaintiff who acts in a way that would provoke a reasonable person to use physical force for protection, unless the defendant in turn uses excessive force to repel the plaintiff. [Cases: Assault and Battery (>13.] aggrieved, adj. (Of a person or entity) haVing legal rights that are adversely affected; having been harmed by an infringement oflegal rights. aggrieved party. See PARTY (2). AGI. abbr. See adjusted gross income under INCOME. agillarius (aj-<l-lair-ee-<ls), n. [Law Latin] Hist. A keeper ofa herd ofcattle in a common field; a hayward. aging of accounts. A process of classifying accounts receivable by the time elapsed since the claim came into existence for the purpose ofestimating the balance of uncollectible accounts as ofa given date. agnatus aging-out, n. A foster child's or minor ward's reaching the age at which any legal right to care expires. Aging-out usu. occurs when the child reaches the age ofmajority and becomes ineligible for foster care. Some states allow an extension of eligibility up to age 21 ifthe child is still in school or cannot live independently, or if it is otherwise in the child's best interests to remain in foster care and the child consents. See INDEPENDENT LIVING PROGRAM. [Cases: Infants 230.1.] agio (aj-ee-oh or ay-jee-oh). The premium paid for the exchange of one kind of money for another, such as paper currency for coin or one country's currency for another's. agiotage (aj-ee-<l-tij). 1. The business of dealing in foreign exchange. 2. The speculative buying and selling ofsecu rities. agist (<l-jist), vb. To allow animals to graze on one's pasture for a fee. agister (<l-jis-t<lr). One who takes and pastures grazing animals for a fee; a person engaged in the business of agistment. An agister is a type ofbailee for hire. Also spelled agistor. -Also termed gisetake r. [Cases: Animals (>21.] agister's lien. See LIEN. agistment (a-jist-mant). 1. A type ofbailment in which a person, for a fee, allows animals to graze on his or her pasture; the taking in ofcattle or other livestock to feed at a per-animal rate. [Cases: Animals (>21.] 2. A charge levied upon the owner or occupier ofland. Also termed gisement. See TITHE OF AGISTMENT. agistment ofsea-banks. Hist. A charge on land used to pay for the upkeep ofdikes that prevent the encroach ment of the sea. agistor. See AGISTER. agnate (ag-nayt), adj. Related or akin through male descent or on the father's side. agnate, n. (16c) 1. A blood relative whose connection is through the male line. 2. A relative on the father'S side, whether or not traced exclUSively through the male line. Cf. COGNATE. agnatic (ag-nat-ik), adj. (Of a relationship) restricted to affiliations through the male line. Also termed agnatical (ag-nat-i-kal). agnatio (ag-nay-shee-oh). [Latin] Roman law. Kinship through the male line, not necessarily involving blood ties; specif., an affiliation offree persons ofeither sex in the power (patria potestas) of the senior living male or of a male who would be in his power ifhe were living. -An agnatic relationship could be created either by adoption or by a blood relationship (cognatio) traced solely through the male side of a family. See COGNATIO; patria potestas under POTESTAS. agnation (ag-nay-sh<ln), n. The relationship ofagnates. agnatus (ag-nay-tas), n. [Latin] Roman law. A person related through the male line. Cf. COGNATUS. agnomen 78 "[Agnati werel all individuals subject for the time being to the same patria potestas, or who would be so subject were the common ancestor alive. Brothers and sisters, with their uncles, aunts, nephews, nieces, and other collaterals (not having been received into another family), if related through males, were agnates. The civil issue of the state was the Agnatic Family. Cognates were all persons who could trace their blood to a single ancestor or ancestress, and agnates were those cognates who traced their connec tion exclusively through males." John Bouvier, Bouvier's Law Dicrionary(8th ed. 1914). agnomen (ag-noh-m<ln). [Latin]l. An additional name or title; a nickname. 2. Roman law. An additional name, given in recognition ofsome achievement or to reflect adoption by a different gens. See NOMEN. agrarian (<l-grair-ee-<ln), adj. Ofor relating to land, land tenure, or a division oflanded property. -agrarian, n. agrarian law. Roman & civil law. The body oflaw govern ing the ownership, use, and distribution ofrural land. agrarium (<l-grair-ee-<lm). [Law Latin] Hist. A tax upon, or tribute payable out of, land. a gratia (ay gray-shee-<l). [Law Latin] EX GRATIA. agreamentum (a-gree-a-men-t<lm). [Law Latin] Agree ment; an agreement. agree, vb. 1. To unite in thought; to concur in opinion or purpose. 2. To exchange promises; to unite in an engagement to do or not do something. 3. Parliamen tary law. To adopt (usu. in the phrase agree to). See ADOPTION (5). agreed-amount clause. An insurance-policy provi sion that the insured will carry a stated amount of coverage. agreed boundary. See BOUNDARY. agreed-boundary doctrine. (1941) The principle by which adjacent landowners resolve uncertainties over land boundaries by permanently fixing the boundar ies by agreement; specif., the rule that owners ofcon tiguous land may agree on the boundary between the parcels, as long as the actual boundary is uncertain, there is agreement between the two owners about the boundary line, there is acquiescence in the agreed line for a time exceeding the statute of limitations, and the agreed boundary is identifiable on the ground. Also termed doctrine ofpractical location. See agreed boundary under BOUNDARY. [Cases: Boundaries (;:::> 46,48.] agreed case. See agreed statement offacts under STATE MENT OF FACTS. agreed decree. See DECREE. agreed dismissal. See dismissal agreed under DISMISSAL (1). agreed judgment. See JUDGMENT. agreed price. See PRICE. agreed statement offads. See STATEMENT OF FACTS. agreed statement on appeal. See agreed statement of facts under STATEMENT OF FACTS. agreed value. See VALUE (2). agreement. (15c) 1. A mutual understanding between two or more persons about their relative rights and duties regarding past or future performances; a mani festation of mutual assent by two or more persons. [Cases: Contracts 2. The parties' actual bargain as found in their language or by implication from other circumstances, including course of dealing, usage of trade, and course of performance. DCC 1-201(3). [Cases: Contracts (;:::> l.] "The term 'agreement,' although frequently used as syn onymous with the word 'contract,' is really an expression of greater breadth of meaning and less technicality. Every contract is an agreement; but not every agreement is a contract. In its colloquial sense, the term 'agreement' would include any arrangement between two or more persons intended to affect their relations (whether legal or otherwise) to each other. An accepted invitation to dinner. for example, would be an agreement in this sense; but it would not be a contract, because it would neither be intended to create, nor would it in fact create, any legal obligation between the parties to it. Further, even an agree ment which is intended to affect the legal relations of the parties does not necessarily amount to a contract in the strict sense of the term. For instance, a conveyance of land or a gift of a chattel. though involving an agreement, is ... not a contract; because its primary legal operation is to effect a transfer of property. and not to create an obliga tion." 2 Stephen's Commentaries on the Laws ofEng/and 5 (L. Crispin Warmington ed., 21st ed. 1950). "An agreement, as the courts have said, 'is nothing more than a manifestation of mutual assent' by two or more parties legally competent persons to one another. Agree ment is in some respects a broader term than contract, or even than bargain or promise. It covers executed sales, gifts, and other transfers of property." Samuel Williston, A

than bargain or promise. It covers executed sales, gifts, and other transfers of property." Samuel Williston, A Treatise on the Law of Contracts 2, at 6 (Walter H.E. Jaeger ed., 3d ed. 1957). agreement incident to divorce. See DIVORCE AGREE MENT. agreement of sale. An agreement that obligates someone to sell and that may include a correspond ing obligation for someone else to buy. [Cases: Sales (;:::> 1.] agreement to agree. 1. An unenforceable agreement that purports to bind two parties to negotiate and enter into a contract; esp., a proposed agreement negotiated with the intent that the final agreement will be embodied in a formal written document and that neither party will be bound until the final agree ment is executed. 2. A fully enforceable agreement containing terms that are sufficiently definite as well as adequate consideration, but leaving some details to be worked out by the parties. [Cases: Contracts "Although the parties [to an agreement with open terms) expect that they will reach agreement on the missing terms, what they expect to happen if they fail to reach agreement is often unclear. They may understand that there will be no contract at all or they may understand that there will be a contract with the missing term supplied as a matter of law. If the latter is their understanding, a question arises whether the agreement is one with open terms sufficiently definite to be enforceable or whether it is a mere unenforceable 'agreement to agree." E. Allan Farnsworth, Contracts 3.29, at 217 (3d ed. 1999). 79 agreement agreement to sell. An agreement that obligates someone to sell. [Cases: Sales C=:> 1.] antenuptial agreement. See PRENUPTIAL AGREE MENT. binding agreement. (lSc) An enforceable contract. See CONTRACT. [Cases: Contracts C=:> 1.] business-continuation agreement. An agreement for the disposition ofa business interest in the event ofthe owner's death, disability, retirement, or withdrawal from the business. The agreement may be between the business and its individual owners, among the individual owners themselves, or between the indi vidual owners and a key person, family member, or outsider. - Abbr. BCA. Cf. cross-purchase agreement; third-party business-buyout agreement. closing agreement. Tax. A written contract between a taxpayer and the Internal Revenue Service to resolve a tax dispute. [Cases: Internal Revenue C=:>4761.] cohabitation agreement. See COHABITATION AGREE MENT. criss-cross agreement. See cross-purchase agreement. cross-purchase agreement. An agreement between a business's individual owners to purchase the interest of a withdrawing or deceased owner in order to continue operating the business. -Also termed criss cross agreement. Cf. business-continuation agreement; third-party business-buyout agreement. divorce agreement. See DIVORCE AGREEMENT. exchange agreement. An agreement to exchange real properties, usu. like-kind properties. See1031 EXCHANGE; TAX-FREE EXCHANGE. formal agreement. (l7c) An agreement for which the law requires not only the consent of the parties but also a manifestation ofthe agreement in some partic ular form (e.g., a signed writing), in default ofwhich the agreement is unenforceable. Cf. formal contract under CONTRACT. [Cases: Contracts C=:>30.] integrated agreement. See INTEGRATED CONTRACT. invalid agreement. See invalid contract under CONTRACT. living-together agreement. See COHABITATION AGREE MENT. marital agreement. See MARITAL AGREEMENT. marital settlement agreement. See DIVORCE AGREE MENT. negotiated agreement. See NEGOTIATED AGREEMENT. noncircumvention agreement. See NONCIRCUMVEN TION AGREEMENT. outsourcing agreement. See OUTSOURCING AGREE MENT. point-and-click agreement. See POINT-AND-CLICK AGREEMENT. postnuptial agreement. See POSTNUPTIAL AGREE MENT. prenuptial agreement. See PRENUPTIAL AGREEMENT. property settlement agreement. See PROPERTY SETTLE MENT (2). reconciliation agreement. See RECONCILIATION AGREE MENT. redemption agreement. See STOCK-REDEMPTION AGREEMENT. separation agreement. See SEPARATION AGREEMENT. side agreement. 1. An agreement that is ancillary to another agreement. 2. Int'llaw. An international accord that is specifically negotiated to supplement a broader trade treaty. For example, NAFTA contains no provisions about labor standards or environmental protection. But two side agreements about those areas were negotiated separately and deSigned to supple ment NAFTA, making the treaty more attractive to the ratifying bodies. -Also termed supplemental agreement. simple agreement. (ISc) An agreement for which the law requires nothing for its effective operation beyond some manifestation that the parties have consented. stock-retirement agreement. See STOCK-REDEMPTION AGREEMENT. subordination agreement. An agreement bywhich one who holds an otherwise senior interest agrees to sub ordinate that interest to a normally lesser interest, usu. when a seller agrees to subordinate a purchase-money mortgage so that the buyer can obtain a first-mort gage loan to improve the property. [Cases: Secured Transactions C=:> 147.] supplemental agreement. See side agreement. surrogate-parenting agreement. See SURROGATE-PAR ENTING AGREEMENT. takeover agreement. An agreement under which a defaulting party's surety agrees to perform the original contract in the defaulting party's stead. [Cases: Principal and Surety C=:>SO.] third-party business-buyout agreement. An agreement by a business's owners to sell all or part ofthe business to an outside person who will continue to operate it. Cf. business-continuation agreement; cross-purchase agreement. trust agreement. See declaration oftrust (2) under DEC LARATION (1). unconscionable agreement (.m-kon-sh::l-n::l-b::ll). (lS17) An agreement that no promisor with any sense, and not under a delusion, would make, and that no honest and fair promisee would accept. For commercial contexts, see VCC 2-302. -Also termed uncon scionable contract; unconscionable bargain. [Cases: Contracts C=:> 1.] underwriting agreement. An agreement between a corporation and an underwriter covering the terms and conditions ofa new securities issue. [Cases: Cor porations C=:>79.] valid agreement. See valid contract under CONTRACT. 80 agreement of imperfect obligation voidable agreement. See voidable contract under CONTRACT. void agreement. See void contract under CONTRACT. agreement ofimperfect obligation. See unenforceable contract under CONTRACT. agreement of rescission. See RESCISSION (2). agreement ofsale. See AGREEMENT. Agreement on Trade-Related Aspects of Intellectual Property Rights. See TRIPS. Agreement Relating to Liability Limitation of the Warsaw Convention and The Hague Protocol. See MONTREAL AGREEMENT. agreement to agree. See AGREEMENT. agreement to marry. See marriage promise under PROMISE. agreement to sell. See AGREEMENT. agri (ag-n), n. pl. [Latin] Lands. agribusiness. The pursuit of agriculture as an occupation or profit-making enterprise, including labor, land-use planning, and financing the cost ofland, equipment, and other necessary expenses . This term generally excludes smaller family-owned and -operated farms. Agricultural Adjustment Act. A 1933 federal statute that paid farmers not to produce crops in an effort to raise crop prices . The U.S. Supreme Court declared the Act unconstitutional in 1936 on grounds that Congress had overstepped its power to regulate commerce. A second, more limited Agricultural Adjustment Act was enacted in 1938. Abbr. AAA. [Cases: AgricultureC=3.1.] Agricultural Cooperative Service. The federal agency within the U.S. Department of Agriculture responsi ble for helping farmers to organize farm cooperatives. The Service also collects statistical information on co-ops and publishes Farmer Cooperatives, a monthly magazine. agricultural-disparagement law. A statute deSigned to protect food producers from and provide remedies for pecuniary harm resulting from false and malicious reports of food contamination . A typical statute applies to false and disparaging public statements implying or claiming that a perishable food product is unsafe for human consumption. It typically applies when the speaker or writer knows that the statements are false because the claim or implication has no basis in reliable scientific inquiry, facts, or data. -Also termed veggie-libellaw; perishable-food-disparagement act; agricultural-product-disparagement law;food-dis paragement law. agricultural fixture. See FIXTURE. agricultural labor. Work that is performed on a farm or ranch, or that pertains to the production of com modities, such as harvesting crops, raising livestock, or obtaining milk, honey, or other animal products . Agricultural labor is often excluded from certain labor laws, such as unemployment insurance and workers' compensation. agricultural lien. See LIEN. Agricultural Marketing Service. An agency in the U.S. Department of Agriculture responsible for compil ing and publishing marketing information, establish ing and enforcing quality standards for agricultural products, testing those products, and making grants to states and farmers. Itwas established by the Secretary ofAgriculture in 1972. Abbr. AMS. agricultural-product-disparagement law. See AGRICUL TURAL-DISPARAGEMENT LAW. Agricultural Research Service. An agency in the U.S. Department ofAgriculture responsible for conducting agricultural research to ensure the production of high quality food and food products. Abbr. ARS. agriculture. The science or art of cultivating soil, har vesting crops, and raising livestock. [Cases: Agriculture C=3.1.] "'Agriculture' is broader in meaning than 'farming'; and while it includes the preparation of soil, the planting of seeds, the raising and harvesting of crops, and all their incidents, it also includes gardening, horticulture, viticul ture, dairying, poultry, bee raising, and ranching." 3 Am. Jur. 2d Agriculture 1, at 934-35 (1986). agri limitati (ag-rI lim-i-tay-tI). See ager limitatus under AGER. Aguilar-Spinelli test (ah-gee-Iahr spi-nel-ee or ag-wa lahr). Criminal procedure. A standard for determining whether hearsay (such as an informant's tip) is suffi ciently reliable to establish probable cause for an arrest or search warrant. Under this two-pronged test which has been replaced by a broader, totality-of-the circumstances approach the reliability of both the information and the informant must be assessed inde pendently. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584 (1969). Cf. TOTALITY-OF-THE-CIRCUMSTANCES TEST. [Cases: Criminal Law C=211(3); Searches and Seizures C=118.1 agunah (ah-goo-nah), n.lewish law. 1. A woman whose husband has deserted her or otherwise disappeared . She may not remarry until either proving his death or obtaining a divorce. 2. A woman whose husband will not agree to a divorce. AGVA. abbr. AMERICAN GUILD OF VARIETY ARTISTS. ahupuaa (ah-hoo-poo-ah-ah). [Hawaiian] A variable measure of Hawaiian land, traditionally understood to stretch from the sea to the mountains, to allow the people to obtain the various materials needed for sub sistence offered at different elevations. -Also spelled ahupua>a. AICPA. abbr. American Institute of Certified Public Accountants. [Cases: Accountants AID. abbr. 1. See artificial insemination by donor under ARTIFICIAL INSEMINATION. 2. UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT. aid, n. 1. A contribution toward defense costs from a third party who has a joint interest in the defense but has not been sued. 2. Hist. A subSidy or tax granted 81 to the king for an extraordinary purpose. 3. Hist. A benevolence or tribute (Le., a sum of money) granted by the tenant to his lord in times ofdifficulty and distress. Over time, these grants evolved from being discre tionary to mandatory. The three principal aids were: (1) to ransom the lord's person ifhe was taken prisoner; (2) to contribute toward the ceremony ofknighting the lord's eldest son; and (3) to provide a suitable dowry for the lord's eldest daughter. aid and abet, vb. (17c) To assist or facilitate the commis sion of a crime, or to promote its accomplishment. Aiding and abetting is a crime in most jurisdictions. Also termed aid or abet; counsel and procure. [Cases: Criminal Law aider and abettor, n. "The phrase 'aid and abet' and 'aider and abettor' seem unnecessarily verbose .... [AJny aid given with mens rea is abetment; hence to add the word 'aid' to the word 'abet' is not necessary

given with mens rea is abetment; hence to add the word 'aid' to the word 'abet' is not necessary and is sometimes misleading." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 724-25 (3d ed. 1982). "In connection with the principal in the second degree or accessory before the fact, the terms 'aid' and 'abet' are frequently used interchangeably, although they are not synonymous. To 'aid' is to assist or help another. To 'abet' means, literally, to bait or excite, as in the case of an animal. In its legal sense, it means to encourage, advise, or instigate the commission of a crime." 1 Charles E. Torcia, Wharton'S Criminal Law 29, at 181 (15th ed. 1993). aid and comfort. (16c) Help given by someone to a national enemy in such a way that the help amounts to treason . The phrase is a loan translation of the French aide et confort, which appears in the early 15th century in a French translation of the Bible. The first English-language use appears to have been in Grafton's Chronicles of 1568. [Cases: Treason C:=>6.] "Aid and comfort may be given in various ways, such as buying a vessel and fitting it for service in aid ofthe enemy, delivering prisoners and deserters to the enemy, or selling critical materials with knowledge of the fact that the pur chaser buys them to use in the manufacture of gunpowder for the enemy, or otherwise to aid him in his prosecution of the war. And the courts have given short shrift to the claim that such a sale was not intended to aid the enemy but only to make a profit." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 502 (3d ed. 1982). aided-awareness survey. Trademarks. A trademark survey in which interviewees are asked to choose from a spectrum of choices that prominently feature the desired response. -Aided-awareness surveys are often discounted or entirely disregarded by courts in trademark-infringement actions. Also termed aided recall survey. (Cases: Trademarks C:=>1619,1629(4).] aide-memoire (ayd-mem-wahr). [French] Int'llaw. A diplomatic document that a diplomatic agent leaves with the receiving state's department offoreign affairs on the occasion of a demarche . The aide-memoire presents the receiving state with a precise record of the substance of the diplomatic agent's mission. It is typically written in an impersonal style, without men tioning either the addressee or the author. It appears on printed letterhead and is dated, but it is not Signed, initialed, or embossed with a seal. See DEMARCHE. AIH aider, n. 1. An act ofaiding; the curing of a defect. 2. One who aids another. aider by pleading over. (1860) The cure of a pleading defect by an adversary's answering the pleading without an objection, so that the objection is waived. [Cases: Pleading C:=>406(3).] aider by subsequent pleading. The cure of a pleading defect by an adversary's answer that refers to or admits a material fact or allegation that was not mentioned in the pleading, or an answer that shows the correct basis for the plaintiff's pleading. Also termed express aider. (Cases: Pleading C:=>403.] aider by verdict. (1824) The cure ofa pleading defect by a trial verdict, based on the presumption that the record contains adequate proof of the necessary facts even if those facts were not specifically alleged. -Also termed cure by verdict. (Cases: Indictment and Information C:=>200-203; Pleading C:=>432-437.] "AIDER BY VERDICT. Wherever a pleading states the essential requisites of a cause of action or ground of defense, it will be held sufficient after a general verdict in favor of the party pleading, though the statement be informal or inaccurate; but a verdict will never aid the statement of a title or cause of action inherently defective." Benjamin J. Shipman, Handbook ofCommon-Law Pleading 332, at 531 (Henry Winthrop Ballantine ed., 3d ed. 1923). aiding an escape. The crime of helping a prisoner escape custody. [Cases: Escape C:=>5.] aid of the king. Rist. A request of the king made by a tenant for relief from another'S demand for rent. aid or abet. See AID AND ABET. aid or abet infringement. Patents. Through some affir mative act or conduct, to actively induce or assist with another person's infringement. -Aiding or abetting patent infringement is actionable under 271(b) of the Patent Act. Cf. infringement in the inducement under INFRINGEMENT. [Cases: Patents C:=>259(1).J aid prayer. Hist. A plea by a life tenant or other holder of less than a fee simple to bring into the action another who holds an interest in the estate (such as a rever sioner or remainderman) to help defend the title. Also termed prayer in aid. aids. See AID (2). Aid to Families with Dependent Children. Obsolete. A federally funded, state-administered welfare program that provided financial assistance to needy families with dependent children. _ Aid to Families with Dependent Children has been replaced by Temporary Assistance to Needy Families. -Abbr. AFDC. See TEMPORARY ASSISTANCE TO NEEDY FAMILIES. aiel (aY-<ll), n. [Law French] Hist. 1. A grandfather. 2. A writ by an heir of a grandfather for recovery of the grandfather's estate, which had been wrongfully pos sessed by a stranger. -Also spelled aile; ayel; ayle. Also termed (in sense 2) writ of aiel. Cf. BESAYEL; COSINAGE. AIH. abbr. See artificial insemination by husband under ARTIFICIAL INSEMINATION. 82 Aiken exemption Aiken exemption. Copyright. An exception in the law of infringement that permits retail establishments with less than 2,000 square feet ofspace to play radio and television broadcasts for employees and patrons without obtaining a license. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,95 S. Ct. 2040 (1975). Also termed store-receiver exemption. [Cases; Copy rights and Intellectual Property ~48.l.J aimable compositeur (ay-mah-bl .. kon-poh-zee-tuur). [French] See AMIABLE COMPOSITOR. AlP. abbr. See AMERICAN INSTITUTE OF PARLIAMENTAR IANS. AIPA. abbr. AMERICAN INVENTORS PROTECTION ACT. AIPLA. abbr. AMERICAN INTELLECTUAL PROPERTY LAW ASSOCIATION. airbill. A document serving as a bill oflading for goods transported by air. -The term includes air consign ment notes and air waybills. [Cases: Carriers ~51.] aircraft piracy. See air piracy under PIRACY (2). air law. The part oflaw, esp. international law, relating to civil aviation. airman's certificate. A license that every aircraft pilot must have to operate an aircraft in U.S. airspace. 49 USCA 44701-44711; 14 CFR 61.3. [Cases: Aviation ~122.] Airman's Information Manual. A publication of the Federal Aviation Administration, providing the funda mental requirements ofany pilot who flies in national airspace. air piracy. See PIRACY (2). air pollution. Environmental law. Any harmful sub stance or energy emitted directly or indirectly into the air, esp. if the harm is to the environment or to the public health or welfare. [Cases: Environmental Law ~241-301.] air-quality-control region. Environmental law. A fed erally deSignated area in which communities share an air-pollution problem, often involVing several states; an interstate area or major intrastate area that the Envi ronmental Protection Agency designates for monitor ing and ameliorating ambient air-quality standards. 42 USCA 7407(c). [Cases: Environmental Law ~ 254-301.] air-quality criteria. Environmental law. The legal limits that the Environmental Protection Agency sets for atmospheric or airborne pollutants in a defined area and at a specified time. [Cases: Environmental Law <~::>255.] air right. (1922) The right to use all or a portion of the airspace above real property. air-services agreement. See AIR-TRANSPORT AGREE MENT. airspace. The space that extends upward from the surface ofland, esp. so far as is necessary for the owner or pos sessor to have reasonable use and enjoyment ofthe inc i-dents ofits ownership or possession. Cf. OUTER SPACE. [Cases: Property~7.] national airspace. Int'llaw. The pillar of air above a nation's territory including internal waters and the territorial sea over which it has complete and exclusive sovereignty and through which foreign aircraft have no right of innocent passage . There is no agreement on the boundary between national airspace and outer space. navigable airspace. The area above the legally estab lished minimum flight altitudes, including the area needed to ensure safe takeoffs and landings of aircraft. 49 USCA 40l02(a)(30). [Cases: Aviation ~3,231.] air-transport agreement. A contract governing the operation of air services; esp., an intergovernmental agreement governing the operation of international air services between their territories. -Also termed air services agreement. air waybill. See WAYBILL. aisiamentum (ay-shee- ..-men-t ..m). [Law Latin] An easement or privilege. aisne. See EIGNE. a issue (ah is[h]-yoo). [Law French] At issue. AJS. abbr. AMERICAN JUDICATURE SOCIETY. a jure suo cadunt (ay joor-ee s[y]oo-oh kay-dant). [Latin] Scots law. They fall from their right. _ The phrase appeared in reference to those who lose a property right through loss of possession or through abandonment. a.k.a. abbr. (1955) Also known as. al (ahl), prep. [Law French] At. a la grande grevaunce (ah la grawnd gr ..-vawns). [Law French] To the great grievance. a large (ah lahrzh). [Law French] Free; at large. Alaska trust. See asset-protection trust (1) under TRUST (3). a latere (ay lat-..-ree). [Latin) From the side; collaterally. -This term was formerly used to denote collateral suc cession rather than lineal succession. albacea (ahl-b ..-thay- ..), n. Spanish law. An executor; the person named by a testator to carry out the direc tions ofa wilL albafirma (al-b .. far-rna). [Law Latin] See WHITE RENT. albanus (al-bay-n ..s), n. [Law Latin] See ADVENA. al barre (ahl bahr). [Law French] At the bar. album breve (al-b ..m breev or bree-vee). See BREVE. alb us tiber (ai-bas h-b..r). [Law Latin "white book"] Hist. An ancient book containing a compilation of the laws and customs of the city of London. -Also termed White Book. alcalde (ahl-kahl-day or al-kal-dee). [fro Arabic aI-qadi "the Cadi" or "the judge"] Spanish law. 1. Hist. A judicial officer. -The alcalde'S functions typically resembled those ofa justice ofthe peace. 2. The mayor 83 alias of a Spanish or Spanish-American town, usu. with a judicial element. This is the modern sense. Alcohol and Tobacco Tax and Trade Bureau. A bureau in the U.S. Department of the Treasury that adminis ters the laws governing the production, use, and dis tribution ofalcohol and tobacco products, and collects excise taxes on firearms and ammunition . The Bureau has the tax-enforcement functions ofthe former Bureau ofAlcohol, Tobacco, and Firearms. Abbr. TTB. alcoholometer. See BREATHALYZER. alderman. A member of a city councilor other local governing body. Also termed alderperson. [Cases: Municipal Corporations C=>84.] alderman nus (al-d;>r-man-;>s). [Law Latin] Hist. An alderman. aldermannus civitatis vel burgi (siv-i-tay-tis vel b<)r-jr). An alderman ofa city or borough. aldermannus hundredi seu wapentachii (han-dri-dr syoo wahp-an-tay-kee-r). An alderman ofa hundred or wapentake. aldermannus regis (ree-jis). An alderman ofthe king, so called because he is appointed by the king or gives the king's judgment in the premises allotted to him. aldermannus totiusAngliae (toh-shee-;;)s ang-glee-ee). An alderman of all England, similar to the chief justi ciary of England in later times. See JUSTICIARY. alderperson. See ALDERMAN. alderwoman. A female member ofa city council or other local governing body. [Cases: Municipal Corporations C=>84.] alea (ay

a city council or other local governing body. [Cases: Municipal Corporations C=>84.] alea (ay-Iee-;;), n. [Latin] Roman law. I. A game ofchance. 2. The chance ofgain or loss in a contract. aleator (ay-Iee-ay-t;;)r). [Latin] Roman law. A gambler; dice player. aleatory (ay-Iee-;;)-tor-ee), adj. (l7c) Dependent on uncer . tain contingencies . The word aleatory derives from the Latin word aleator, meaning "a gambler," which itself comes from alea (a die used in gaming). Also termed aleatoric. aleatory contract. See CONTRACT. aleatory promise. See PROMISE. alegal, adj. (1991) Outside the sphere oflaw; not clas sifiable as being legal or illegal <the law often treats the promises ofunmarried cohabitants as contractual words rather than alegal words of commitment>. alegality, n. aler a Dieu. See ALLER ADIEU. aler sans jour. See ALLER SANS TOUR. ale silver. Hist. A rent or tribute paid annually to the lord mayor of London by persons who sold ale within the city. alevosia. Spanish law. See MALICE. See Pico v. United States, 228 U.S. 225, 33 S.Ct. 482 (1913). alez adeu (ah-lay ah-duu). See ADEU. alfet (al-fet). Hist. A cauldron filled with boiling water, used to scald the arm ofa person undergoing an ordeal. See ordeal by water (2) under ORDEAL. Alford plea. (1971) A guilty plea that a defendant enters as part of a plea bargain, without actually admitting guilt. This plea is not considered compelled within the language ofthe Fifth Amendment if the plea rep resents a voluntary, knowing, and intelligent choice between the available options <the defendant -real izing the strength ofthe prosecution's evidence and not wanting to risk receiving the death penalty -entered into an Alford plea>. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). Cf. NO CONTEST. [Cases: Criminal Law C=>273(4.1), 273.1(2).] algOrithm. Patents. A mathematical or logical process consisting of a series of steps, designed to solve a specific type of problem. Algorithms were long considered abstract ideas and therefore unpatentable subject matter. But in 1998, the U.S. Court of Appeals for the Federal Circuit found valid a patent on finan cial software as "a practical application ofa mathemati cal algorithm [that] produces a useful, concrete and tangible result." State St. Bank & Trust Co. v. Signa ture Fin. Group, 149 F.3d 1368 (Fed. Cir. 1998). That precedent makes it easier to patent computer software, which consists almost entirely ofalgorithms. [Cases: Patents C=>6.] algorithm exception. Patents. The general rule that an abstract mathematical function, such as an algo rithm, cannot be patented. The exception was first articulated by the U.S. Supreme Court in Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253 (1972). The rule was undermined by State St. Bank & Trust Co. v. Signature Fin. Group, 149 F.3d 1368 (Fed. Cir. 1998). In that case, the court decided that a machine's transformation of numerical data into a calculated share price was a suf ficient and practical application ofa mathematical algo rithm, formula, or calculation, because the final share price was "a useful, concrete and tangible result." Also termed mathematical-algorithm exception. [Cases: Patents C=>6.J ALI. abbr. AMERICAN LAW INSTITUTE. alia enormia (ay-lee-<l i-nor-mee-;;). [Law Latin "other serious wrongs"] Hist. A general allegation of injuries made at the conclusion ofthe declaration by a plaintiff in a trespass action. [Cases: Trespass C=>40(5).J aliamenta (al-ee-;;)-men-t;;)). [Latin] A liberty ofpassage or open way, such as a path through another's hedge or drainage for a waterway. alias (ay-Iee-;;)s), adj. Issued after the first instrument has not been effective or resulted in action. alias, adv. 1. Otherwise called or named; also known as <William Grimsby, alias the Grim Reaper>. 2. At another time. alias, n. (17c) 1. An assumed or additional name that a person has used or is known by. -Also termed assumed name;jictitious name. Cf. PSEUDONYM. [Cases: 84 alias dictus Names C::=> 14.] 2. Hist. A second writ issued after the first has failed. See alias writ under WRIT. Pi. aliases. alias dictus (ay-lee-as dik-tas), adv. [Latin] Otherwise called; ALIAS (1). alias execution. See EXECUTION. alias process. See PROCESS. alias subpoena. See SUBPOENA. alias summons. See SUMMONS. alias writ. See WRIT. a libellis (ay Ii-bel-is). [Law Latin] Roman law. 1. An officer having charge of petitions (libelli) addressed to the emperor or sovereign. 2. CHANCELLOR OF THE EXCHEQUER. a libello ut libellatur (ay l;:~-bel-oh at lib-a-lay-tar). [Law Latin] Rist. From the libel as laid. _ The phrase appeared in a dismissal in favor ofa defendant. alibi (al-a-bI), n. [Latin "elsewhere"] (l8c) 1. A defense based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime at the relevant time. Fed. R. Crim. P. 12.1. [Cases: Criminal Law C::=>31.5.] 2. The fact or state of having been elsewhere when an offense was committed. alibi, vb. To offer or provide an alibi for <the conspirators alibied for each other>. alibi witness. See WITNESS. alien (ay-Iee-an or ayl-yan), n. (I4c) A person who resides within the borders of a country but is not a citizen or subject of that country; a person not owing allegiance to a particular nation. -In the United States, an alien is a person who was born outside the jurisdiction ofthe United States, who is subject to some foreign govern ment, and who has not been naturalized under U.S. law. [Cases: Aliens, Immigration, and Citizenship 104, 121,786, 116, 116.J alien ami. See alien friend. alien amy. See alien friend. alien enemy. A citizen or subject of a country at war with the country in which the citizen or subject is living or traveling. Also termed enemy alien. [Cases: War and National Emergencyc::=> 11.] "In its natural meaning, the term 'alien enemy' indicates a subject of a State with which this country is at war; but in considering the enforcement of civil rights, the test is not nationality, but residence or place of business. Hence, if a person is voluntarily resident in or is carrying on business in an enemy country, then he is an alien enemy even though he be a British subject or the subject of a neutral State ...." 1 EW. Chance, Principles ofMercantile Law 5253 (P.W. French ed., 13th ed. 1950). alien friend. An alien who is a citizen or subject of a friendly power. -Also termed (in Law French) alien amy; alien ami. alien immigrant. See IMMIGRANT. deportable alien. A alien who has entered the United States but is subject to removal. enemy alien. See alien enemy. excludable alien. A alien ineligible for admission or entry into the United States. illegal alien. (1901) An alien who enters a country at the wrong time or place, eludes an examination by officials, obtains entry by fraud, or enters into a sham marriage to evade immigration laws. Also termed undocumented alien. [Cases: Aliens, Immigration, and Citizenship C::=> 121, 786.J inadmissible alien. A deportable or excludable alien. See 8 USCA 1182(a). nonresident alien. (1801) A person who is neither a resident nor a citizen of the United States. [Cases: Aliens, Immigration, and Citizenship C::=> 116.] resident alien. (18c) An alien who has a legally estab lished domicile in the United States. See NATURALIZA TION. [Cases: Aliens, Immigration, and Citizenship C::=> 116.] undocumented alien. See illegal alien. alien, vb. See ALIENATE. alienable (ay-Iee-a-na-bal or ayl-ya-), adj. Capable of being transferred to the ownership of another; trans ferable <an alienable property interest>. -alienabil ity, n. alienage (ay-Iee-a-nij or ayl-ya-nij), n. The condition or status of being an alien. [Cases: Aliens, Immigration, and Citizenship C::> 104.] declaration ofalienage. See DECLARATION (1). alien ami. See alien friend under ALIEN. alien amy. See alien friend under ALIEN. Alien and Sedition Acts. Hist. Four statutes passed in 1798 deSigned to silence critics of the Federalist party by tightening reSidency requirements for citizenship, granting to the President the power to jail aliens consid ered dangerous to the country, and restricting freedoms ofthe press and speech by criminalizing speech hostile to the government. - All the acts had expired or been repealed by 1802. alienate (ay-Iee-a-nayt or ayl-ya-), vb. (16c) To transfer or convey (property or a property right) to another. Also termed alien. alienator, n. alienatio feud; (ay-Iee-a-nay-shee-oh fyoo-dI). [Law Latin] Hist. DispOSition of a feudal right. alienatio feudifirmae feudifirmarum (ay-Iee-a-nay shee-oh fyoo-di-far-mee fyoo-di-far-mair-am). [Law Latin" disposition ofa feuholding offeuholders"J Hist. A conveyance to avoid the prohibition on alienation of Crown lands. -It was nullified by statute in 1597. alienation (ay-Iee-a~nay-shan or ayl-ya-nay-shan), n. (14c) 1. Withdrawal from former attachment; estrange ment <alienation of affections>. 2. Conveyance or transfer of property to another <alienation of one's estate>. [Cases: PropertyC::=> 11.] alienative (ay-Iee a-nay-Bv or ayl-ya-), adj. 85 "[AJny transfer of real estate short of a conveyance of the title is not an alienation of the estate: 4AJohn Alan Appleman & Jean Appleman, Insurance Law and Practice 2741, at 325 n.12 (rev. vol. 1969). involuntary alienation. Alienation against the wishes of the transferor, as by attachment. -Also termed involuntary conveyance. alienation clause. (1877) 1. A deed provision that either permits or prohibits the further conveyance of the property. [Cases: Deeds (:::::> 144(1), 149.] 2. Insurance. A clause in an insurance policy voiding coverage ifthe policyholder alienates the insured property. [Cases: Insurance (:::::>3051.] alienation ofaffections. (1867) A tort claim for willful or malicious interference with a marriage by a third party without justification or excuse . Where the cause of action still exists, the elements are (1) some wrongful conduct by the defendant with the plaintiff's spouse, (2) the loss of affection or loss ofconsortium ofthe plain tiff's spouse, and (3) a causal relationship between the defendant's conduct and the loss of consortium. Only a few states allow this cause ofaction. But the doctrine thrives elsewhere. For example, a North Carolina court has upheld a $1 million award to an ex-wife who filed an alienation-of-affections action against her ex-husband's new wife. Hutelmyer v. Cox, 514 S.E.2d 554 (N.C. Ct. App. 1999). See CONSORTIUM; HEARTBALM STATUTE. [Cases: Husband and Wife (:::::>322-337.] alienation office. See OFFICE. alienative fact. See FACT. alien corporation. See foreign corporation under COR PORATION. alienee (ay-lee-<l-nee or ayl-Y<l-nee), n. (16c) One to whom property is transferred or conveyed. -Also termed disponee. fraudulent alienee. One who knOWingly receives an asset by means of fraudulent alienation. [Cases: Fraudulent Conveyances (:::::> 156-158.] alien enemy. See

: Fraudulent Conveyances (:::::> 156-158.] alien enemy. See ALIEN. alien friend. See ALIEN. alienigena (ay-lee-a-nij-a-na). [Latin1 Hist. An alien. C INDIGENA. alieni generis (ay-lee-ee-m [or al-ee-] jen-d-ris). [Latin] Ofanother kind; ofa foreign kind. alieni juris (ay-Iee-ee-nr [or al-ee-] joor-is), adj. [Latin] Roman law. Subject to the power or authority of another. Also spelled alieni iuris. alien immigrant. See IMMIGRANT. alienism. The state, condition, or character of an alien. alienist. (1864) Archaic. A psychiatrist, esp. one who assesses a criminal defendant's sanity or capacity to stand trial. alienor (ay-Iee-<l-nar or -nor), n. (16c) One who trans fers or conveys property to another. Also termed disponor. alimony Alien Tort Claims Act. A section in the Judiciary Act of 1789 giving federal courts jurisdiction to hear tort claims brought by foreigners who allege a violation of international law or a treaty to which the United States is a party. 28 USCA 1350. The statute was largely dormant until the 1980s, when it was invoked in several cases involVing torture, disappearances, or killings committed by non-Americans in foreign countries. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). Later, alien plaintiffs began using the law to sue large corporations and the United States government or those acting at the government's direction. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739 (2004); Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. 2001). Also termed Alien Tort Statute. [Cases; Aliens, Immigration, and Citizenship (:::::>760-766.] alienus (ay-Iee-or al-ee-ee-nas), adj. [Latin] Roman law. Belonging to another. Alienus homo means "another'S slave." aliment. Scots law. The financial support that an indigent person is entitled to receive from a spouse or, ifunmar ried, from a relative or relatives in a prescribed order, beginning with the person's children. Also termed (in English law) alimony. alimenta (al-a-men-td). [Latin] Roman law. Things nec essary to sustain life, such as food and clothing. alimentary-canal smuggling. See SMUGGLING. alimony (al-a-moh-nee). (17c) 1. A court-ordered allow ance that one spouse pays to the other spouse for maintenance and support while they are separated, while they are involved in a matrimonial lawsuit, or after they are divorced . Alimony is distinct from a property settlement. Alimony payments are taxable income to the receiving spouse and are deductible by the payor spouse; payments in settlement of property rights are not. The Supreme Court has held unconsti tutional a statute that imposed alimony obligations on the husband only. Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102 (1979). -Also termed spousal support; maintenance. Cf. CHILD SUPPORT; DIVORCE AGREEMENT. [Cases: Divorce (:::::>208,230.] "'Alimony,' which signifies literally nourishment or suste nance, means, in a general sense, the allowance required by law to be made to a spouse from the other spouse's estate for support or maintenance, either during a matri monial suit or at its termination, where the fact of marriage is established and the right to a separate maintenance is proved. Similarly stated, alimony is the allowance which a party may be compelled to pay to his or her spouse for maintenance when they are living apart or after they have been divorced." 278 CJS Divorce 306, at 102-03 (1986). alimony in gross. Alimony in the form of a Single and definite sum not subject to modification. -Also termed lump-sum alimony. [Cases: Divorce (:::::> 241.] alimony pendente lite (pen-den-tee II-tee). [Latin pendente lite "pending litigation"] See temporary alimony. final alimony. See permanent alimony. 86 alimony trust lump-sum alimony. See alimony in gross. periodic alimony. See permanent alimony. permanent alimony. Alimony payable in usu. weekly or monthly installments either indefinitely or until a time specified by court order . This kind ofalimony may usu. be modified for changed circumstances of either party. It terminates upon the death of either spouse and usu. upon the remarriage ofthe obligee. Also termed final alimony; periodic alimony. [Cases: Divorce (-.>230.] provisional alimony. See temporary alimony. rehabilitative alimony. Alimony found necessary to assist it divorced person in acquiring the education or training required to find employment outside the home or to reenter the labor force . It usu. has time limitations, such as a maximum ofone or two years. Also termed short-term alimony; transitional alimony. [Cases: Divorce C=>247.] reimbursement alimony. Alimony deSigned to repay a spouse who during the marriage made financial con tributions that directly enhanced the future earning capacity ofthe other spouse . An example is alimony for a wife who worked full-time supporting herself and her husband with separate-property earnings while he earned a medical degree. [Cases: Divorce temporary alimony. Interim alimony ordered by the court pending an action for divorce or separation in which one part y has made a claim for permanent alimony. Also termed provisional alimony; alimony pendente lite; allowance pendente lite. [Cases: Divorce C=>208.] transitional alimony. See rehabilitative alimony. 2. English law. ALIMENT. alimony trust. See TRUST. alio intuitu (ay-Iee-oh in-t[y]oO-,H[y]oo), adv. [Latin "under a different aspect"] In a different view; with respect to another case or condition. alioquisuccessurus (ay-Iee-oh-kwI s;lk-ses-;l-r;ls). [Latin] Hist. (Of an heir) otherwise entitled to succeed . The phrase appeared in reference to an heir who would have succeeded to the property by law, even without a deed granting succession rights. Also spelled alioquin successurus. "In the general case, an heir who succeeds to an estate, incurs by his succession liability for the debts and obliga' tions of his ancestor .... But if the heir succeeding to the estate can take it up in a different character from that of heir of the last proprietor, if he be alioqui successuyus, such liability is not incurred." John Trayner, TrayneY's Latin Maxims 38 (4th ed. 1894). aliqualis probatio (al-i-kway-lis proh-bay-shee-oh). [Law Latin] Hist. proof of some sort. The phrase referred to evidence that, although not meeting strict legal requirements, was the best available under the circumstances. aliquot (al-;l-kwot), adj. (16c) Contained in a larger whole an exact number of times; fractional <5 is an aliquot part of30>. aliquot-part rule. (1947) The principle that a person must intend to acquire a fractional part ofthe owner ship ofproperty before a court can declare a resulting trust in the person's favor. [Cases: Trusts C=>62-90.] aliter (al-;l-t;lr). [Latin] Otherwise; it would be other wise. "If I trespass on another's land, and make an excavation there Without leaving any rubbish on the land, the trespass ceases as soon as I leave the land, and does not continue until I have filled the excavation up again. Consequently only one action will lie, and in it full damages are recov erable for both the past and the future. Aliter if I have brought a heap of soil and left it on the plaintiff's land: R.F.V. Heuston, Salmond on the Law ofTorts 42 (17th ed. 1977). ALI test. See SUBSTANTIAL-CAPACITY TEST. aliud (ay-Iee-;ld). [Latin] Something else; another thing. aliud examen (ay-Iee-;ld ig-zay-man). [Latin "another investigation" or "another trial "] A different or foreign mode of triaL aliud simulatum, aliud actum (ay-Iee-;ld sim-y;l-lay t;lm, ay-lee-;ld ak-t;lm). [Latin] Hist. One thing pre tended, another thing done. aliunde (ay-Iee-y;m-dee), adj. [Latin] (17c) From another source; from elsewhere <evidence aliunde>. See extrin sic evidence under EVIDENCE. aliunde rule. (1943) Evidence. The doctrine that a verdict may not be impeached by a juror's testimony unless a foundation for the testimony is first made by competent evidence from another source. [Cases: Criminal Law C=>957; Federal Civil Procedure New Trial C=>143; Trial C=>344.] ALJ. abbr. ADMINISTRATIVE-LAW JUDGE. all and singular. (16c) Collectively and individually. all-claims rule. Patents. 1he now-abandoned doctrine that a patent is invalid unless every inventor named in the patent made an inventive contribution to every claim in the patent . Section 116 of the Patent Act now expressly provides that inventors may apply for a patent jointly even though each did not make a con tribution to the subject matter ofevery claim. [Cases: Patents allegata (al-;l-gay-t;l). [Latin] pl. ALLEGATUM. allegatio falsi (al-;l-gay-shee-oh fal-s! or fawl-sI). [Latin] Hist. An untrue allegation. Cf. EXPRESSIO FALSI. allegation, n. (15c) 1. The act ofdeclaring something to be true. 2. Something declared or asserted as a matter of fact, esp. in a legal pleading; a party's formal statement of a factual matter as being true or provable, without its having yet been proved. -allege, vb. defensive allegation. Eccles. law. A defendant's response in an ecclesiastical action; speci., a defen dant's pleading of the facts relied upon that require 87 alliance the plaintiff's response under oath. Cf. primary alle gation (2). "The proceedings in the ecclesiastical courts are therefore regulated according to the practice ofthe civil and canon laws .... [Tlheir ordinary course of proceeding is; first, by citation, to call the party injuring before them. Then ... to set forth the complainant's ground of complaint. To this succeeds the defendant's answer upon oath; when, if he denies or extenuates the charge, they proceed to proofs by witnesses examined, and their depositions taken down in writing, by an officer of the court. if the defendant has any circumstances to offer in his defence, he must also propound them in what is called his defenSive allegation, to which he is entitled in his turn to the plaintiff's answer upon oath, and may from thence proceed to proofs as well as his antagonist." 3 William Blackstone, Commentaries on the Laws ofEngland 100 (1768). disjunctive allegation. (1814) A statement in a pleading or indictment that expresses something in the alter native, usu. with the conjunction "or" <a charge that the defendant murdered or caused to be murdered is a disjunctive allegation>. [Cases: Federal Civil Pro cedure (;:=:>675; Indictment and Information Pleading (;:=:>20, 53.] material allegation. (18c) In a pleading, an assertion that is essential to the claim, charge, or defense <a material allegation in a battery case is harmful or offensive contact with a person>. primary allegation. (1847) 1. The principal charge made against an adversary in a legal proceeding. 2. Eccles. law. The opening pleading in an action in ecclesiastical court. -Also termed primary plea. Cf. defensive allegation. 3. Eccles. law. The entire state ment offacts to be used in a contested suit. allegation of faculties. Family law. Archaic. A state ment detailing a husband's or wife's property, made by a spouse who seeks alimony. See FACULTIES. allegation of use. See amendment to allege use under TRADEMARK APPLICATION AMENDMENT. allegations-of-the-complaint rule. See EIGHT-CORNERS RULE. allegatum (al-"-gay-t,,m), n. [Latin] A fact alleged in a pleading; ALLEGATION. PL allegata. Cf. PROBATUM. alleged (,,-lejd), adj. (15c) 1. Asserted to be true as des

UM. alleged (,,-lejd), adj. (15c) 1. Asserted to be true as described <alleged offenses>. 2. Accused but not yet tried <alleged murderer>. allegiance. 1. A citizen's or subject's obligation offidelity and obedience to the government or sovereign in return for the benefits of the protection of the state. Alle giance may be either an absolute and permanent obli gation or a qualified and temporary one. acquired allegiance. The allegiance owed by a natural ized citizen or subject. actual allegiance. The obedience owed by one who resides temporarily in a foreign country to that country's government . Foreign sovereigns, their representatives, and military personnel are typically excepted from this requirement. -Also termed local allegiance. natural allegiance. The allegiance that native-born citizens or subjects owe to their nation. permanent allegiance. The lasting allegiance owed to a state by its citizens or subjects. temporary allegiance. The impermanent allegiance owed to a state by a resident alien during the period of residence. 2. Hist. A vassal's obligation to the liege lord. See LIEGE. all-elements rule. Patents. The principle that under the doctrine ofequivalents, there can be no patent infringe ment ifeven one element ofa claim or its eqUivalent is not present in the accused device . This rule acts to limit the doctrine of eqUivalents and prevent the doc trine's application to an entire claim, rather than the claim's constituent elements. Also termed all-limi tations rule; rule against vitiation ofa claim element. Cf. ALL-STEPS RULE, INHERENCY DOCTRINE. [Cases: Patents (;:=:>226.6.] Allen charge. (1940) Criminal procedure. A supplemen tal jury instruction given by the court to encourage a deadlocked jury, after prolonged deliberations, to reach a verdict. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154 (1896). -Also termed dynamite charge; dynamite instruction; nitroglycerine charge; shotgun instruction; third-degree instruction. [Cases: Criminal Law 865(1.5).] aller a Dieu (a-lay" dyuu or dyoo). [Law French] To go to God . This phrase prays for the case to be dis missed from court. Sometimes spelled aler aDieu. Cf. ADIEU. aller sans jour (a-lay san zhoor). [Law French] To go without day . This phrase prays for a final dismissal of a case. Also spelled aler sans jour. See GO HENCE WITHOUT DAY; ADEU. all-estate clause. See ALL-THE-ESTATE CLAUSE. all-events test. (1954) Tax. A requirement that all events fixing an accrual-method taxpayer's right to receive income or incur expense must occur before the taxpayer can report an item ofincome or expense. [Cases: Internal Revenue (;:=:>3373.] alleviare (,,-lee-vee-air-ee), vb. [Law Latin] To levy or pay a fine or composition. all faults, with. See AS IS. all fours. See ON ALL FOURS. all-holders rule. Securities. 1. An SEC rule that prohibits a public offering by the issuer of shares to some, but not all, ofthe holders of a class of shares. 2. An SEC rule requiring a tender offeror to make its offer to all the target company's shareholders. [Cases: Securities Regulation (;:=:>52.30-52.50.] alliance. 1. A bond or union between persons, families, states, or other parties. Cf. STRATEGIC ALLIANCE. 2. Int'llaw. A union or association of two or more states or nations, usu. formed by league or treaty, esp. for jointly waging war or mutually protecting against and 88 allied offense repelling hostile attacks . An example is the North Atlantic Treaty Organization (NATO). Cf. DETENTE; ENTENTE. allied offense. See OFFENSE (1). all-inclusive mortgage. See wraparound mortgage under MORTGAGE. allision (;J-lizh-.;m), n. Maritime law. The contact of a vessel with a stationary object such as an anchored vessel or a pier . In modern practice, "collision" is often used where "allision" was once the preferred term. Cf. COLLISION. [Cases: Shipping C:=>81.] allide (;J-hd), vb. all-limitations rule. See ALL-ELEMENTS RULE. allocable (al-;J-k;J-b;Jl), adj. Capable ofbeing allocated. allocation, n. (16c) A designation or apportionment for a specific purpose; esp., the crediting ofa receipt or the charging of a disbursement to an account <allocation offunds>. allocate, vb. -allocable, adj. alloca tor, n. allocatione facienda (al-;J-kay-shee-oh-nee fay-shee end;J), n. See DE ALI.OCATIONE FACIENDA. allocatur (al-;J-kay-t;Jr). [Law Latin] It is allowed . This word formerly indicated that a writ, bill, or other pleading was allowed. It is still used today in Pennsyl vania to denote permission to appeal. -Also termed allogatur. special allocatur. An allowance ofa writ (such as a writ of error) that is legally required in certain cases. allocute (al-;J-kyoot), vb. To deliver an allocution in court. allocution (al-<lkyoo-sh;Jn), n. Criminal procedure. 1. A trial judge's formal address to a convicted defendant, asking him or her to speak in mitigation ofthe sentence to be imposed . This address is required under Fed. R. Crim. P. 32(c)(3)(C). 2. An unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence. This statement is not subject to cross-examination. [Cases: Sentencing and Punishment V-~J_'J'I victim allocution. A crime victim's address to the court before sentencing, usu. urging a harsher punishment. [Cases: Sentencing and Punishment C:=>361.] allocutory (;)-lok-y;J-tor-ee), adj. Of or relating to an allocution <allocutory pleas for mercy>. allocutus. See ARREST OF JUDGMENT. allod (al-;Jd), n. Hist. The domain ofa household. allodial (<l-loh-dee-;J!), adj. (17c) Held in absolute owner ship; pertaining to an allodium. -Also spelled alodial. Cf. FEUDAL. allodially, adv. 'The term -alodial' originally had no necessary reference to the mode in which the ownership of land had been con ferred; it simply meant land held in absolute ownership, not in dependence upon any other body or person in whom the proprietary rights were supposed to reside, or to whom the possessor of land was bound to render service. It would thus properly apply to the land which in the original settle ment had been allotted to individuals, while bookland was primarily applicable to land the title to which rested on a formal grant. Before long, however, the words appear to have been used synonymously to express land held in absolute ownership, the subject of free disposition inter vivos or by will." Kenelm E. Digby, An Introduction to the History of the Law ofReal Property 11-12 (5th ed. 1897). allodium (;)-loh-dee-<lm), n. (17c) An estate held in fee simple absolute. -Also spelled alodium. Also termed alod; alode. [Cases: Estates in PropertyC:=>5.] "In this country. one who has full ownership of land is said to own it allodially that is, free of feudal services and incidents." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Inteyests 18 (2d ed. 1984). allogatur. See ALLOCATUR. allograph (al-;)-graf). (1954) An agent's writing or sig nature for the principal. This is the antonym ofauto graph. [Cases: Principal and Agent C:=> 132(1).] allonge (a-Iawnzh). (1859) A slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements . Former UCC 3-202 required that indorsements be made on the instrument unless there was no space -and only then could an allonge be used. Current 3-3-204(a) eliminates that requirement and provides that "a paper affixed to the instrument is part of the instrument." The UCC comment makes it clear that the allonge is valid even ifspace is available on the instrument. [Cases: Bills and Notes C:=> 183.) all-or-none offering. See OFFERING. all-or-none order. See ORDER (8). all-or-nothing rule. (1954) A gloss on the rule against perpetuities holding that a class gift is invalid in its entirety if it is invalid in part. The effect is to invali date a class member'S interest even ifit vests within the period of the rule because it may be subject to partial divestment by the remote interest of another class member. allotment, n. (16c) 1. A share or portion of something, such as property previously held in common or shares in a corporation, or time assigned to speakers or sides in a deliberative assembly. [Cases: Common Lands 14.]2. In American Indian law, the selection ofspecific land awarded to an individual allottee from a com man holding. [Cases: Indians C:=> 161.] allot, vb. allotment certificate. Securities. A document that records the essential elements ofa subscription ofshares, such as how many shares are to be purchased, the price to be paid, and the payment and delivery schedule. allotment note. English law. A seaman's written assign ment ofa portion ofhis wages to a wife, parent, grand parent, or sibling. These notes are governed by the Merchant Shipping Act of 1970, 13(1). allotment system. English law. The practice of dividing land into small portions for cultivation by agricultural laborers and others. 89 allurement allottee. One to whom an allotment is made; a recipient of an allotment. allowable state. Patents. Ofa patent claim, the condition of containing patentable subject matter in an accept able form. allowance. (l4c) 1. A share or portion, esp. of money that is assigned or granted. allowance pendente lite. See temporary alimony under ALIMONY. backhaul allowance. A price discount given to custom ers who get their goods from a seller's warehouse as a reflection ofthe seller's freight-cost savings. family allowance. (1869) A portion ofa decedent's estate set aside by statute for a surviving spouse, children, or parents, regardless of any testamentary disposition or competing claims . Every state has a statute autho rizing the probate court to award an amount for the temporary maintenance and support ofthe surviving spouse (and often for dependent children). The allow ance may be limited for a fixed period (18 months under the Uniform Probate Code) or may continue until all contests are resolved and a decree of distri bution is entered. This support, together with probate homesteads and personal-property allowances, is in addition to whatever interests pass by the will or by intestate succession. See probate homestead under HOMESTEAD. Cf. spousal allowance. [Cases: Execu tors and Administrators (;::J 173-201.] gratuitous allowance. A pension voluntarily granted by a public entity . The gratuitous (rather than con tractual) nature of this type of allowance gives the pensioner no vested rights in the allowance. [Cases: Officers and Public Employees (;::J 101.5(1).] spousal allowance. (1985) A portion of a decedent's estate set aside by statute for a surviving spouse, regardless of any testamentary disposition or com peting claims. This allowance is superior to the claims of general creditors. In some states, it is even preferred to the expenses ofadministration, funeral, and last illness ofthe spouse. Also termed widow's allowance: widower's allowance. See probate home stead under HOMESTEAD. Cf.Jamily allowance. [Cases: Executors and Administrators (;::J 173-201.] widower's allowance. See spousal allowance. widow'S allowance. See spousal allowance. 2. The sum awarded by a court to a fiduciary as payment for services. 3. A deduction. depletion allowance. A tax deduction for the owners of oil, gas, mineral, or timber resources corresponding to the reduced value of the property resulting from the removal of the resource. [Cases: Internal Revenue (;::J3490, 3501, 3504.J 4. Archaic. A special sum that a court awards to the prevailing party in addition to the usual costs ofcourt, esp. in a difficult case. -Also termed extra allowance; special allowance. 5. Patents. The U.S. Patent and Trade mark Office's decision to issue a patent to an applicant: specif., the patent examiner'S approval of at least one of an application's claims . Once a Notice of Allow ance is sent, the inventor must

iner'S approval of at least one of an application's claims . Once a Notice of Allow ance is sent, the inventor must pay an issue fee before the PTO issues the patent. [Cases: Patents 107.] 6. Trademarks. The U.S. Patent and Trademark Office's decision to approve a trademark for which the applica tion was made under l(b) of the Lanham Act. If a trademark application made under l(b) is approved by the PTO, the Office publishes the mark and -unless it is successfully opposed -issues a certificate of reg istration and publishes notice ofthe registration in the Official Gazette. [Cases: Trademarks (;::J 1287.] allowed application. See PATENT APPLICATION. allow the appeal. See REVERSE. alloynour (d-loy-ndr). [Law French] Hist. One who conceals, steals, or furtively carries off something. all-purpose public figure. See PUBLIC FIGURE. all rights reserved. Copyright. A phrase required as part of a valid copyright notice under the Buenos Aires Convention . Because other international copyright treaties do not require the phrase, and all signatories to the Buenos Aires Convention are parties to other treaties, the phrase is now surplusage. [Cases: Copy rights and Intellectual Property (;::J50.1(2).j all-risk insurance. See INSURANCE. all-steps rule. Patents. The doctrine that in order for a method or process claim to be literally infringed by an accused process, the accused process must have every step and limitation-or an equivalent-of the infringed claim. Cf. ALL-ELEMENTS RULE. [Cases: Patents (;::J 229.] all substantial rights. Patents. Every right in a patent (whether or not held by the grantor) that is of value when the patent rights or an undivided interest in a patent is transferred . A transfer is not a transfer of all substantial rights to a patent if: (1) it is territorially restricted; (2) its term is less than the patent term; (3) it contains field-of-use limitations; or (4) it does not convey rights to all claims in the patent. [Cases: Patents (;::J202(1).] all-the-estate clause. English law. The provision in a con veyance transferring "all the estate, right, title, interest, claims, and demand" of the grantor in the property conveyed. Also termed all-estate clause. "It was also usual before 1882 to add what was called an 'all estate clause' with the object of ensuring that the entire interest of the grantor should be transferred. This was as a matter of fact quite ineffective to transfer anything that would not pass automatically, and it is now omitted in reliance on the enactment that, unless a contrary inten tion is expressed, every conveyance is effectual to pass all the estate, right, title, interest, claim, and demand which the conveying parties respectively have in, to, or on the property." C.c. Cheshire, Modem Law of Real Property 679-80 (3d ed. 1933). allurement. (1873) Torts. An attractive object that tempts a trespassing child to meddle when the child ought to abstain. See ATTRACTIVE-NUISANCE DOCTRINE. Cf. 90 alluvial mining attractive nuisance under NUISANCE. [Cases: Negli gence (>1l72-1178.] alluvial mining. (1894) The practice of removing sand and gravel from a riverbed. alluvio maris (a-Ioo-vee-oh mar-is). [Latin "alluvion of the sea"] The formation ofsoil or land from the sea. alluvion (a-Ioo-vee-an). [fro Latin alluvio "flood"] (16c) Roman & civil law. 1. Strictly, the flow or wash ofwater against a shore or riverbank. 2. An accumulation of soil, clay, or other material deposited by water; esp., in land law, an addition ofland caused by the buildup of deposits from running water, the added land then belonging to the owner of the property to which it is added. -Also termed alluvium. 3. Louisiana law. An accumulation ofsoil, clay, or other material deposited on the bank of a river . In Louisiana, lands formed on a seashore or the bank of a navigable lake are not alluvion. They belong to the state rather than the riparian owners. Cf. ACCRETION (1); AVULSION (2); DELICTION; EROSION. [Cases: Waters and Water Courses (>92,93.] -alluvial, adj. -alluviate, vb. -alluvia tion, n. alluvium. See ALLUVION (2). All Writs Act. A federal statute that gives the U.S. Supreme Court and all courts established by Congress the power to issue writs in aid oftheir jurisdiction and in conformity with the usages and principles oflaw. 28 USCA 1651(a). [Cases: Federal Courts (>10.1.] ally. Int'llaw. 1. A nation tied to another by treaty or alliance. 2. A citizen or subject ofan allied nation. almaria (al-mair-ee-a). [Latin "cupboard, bookcase"] The archives of a church or library. -Also termed armaria. almoign (al-moyn). [Law French "alms"] 1. Alms; a church treasury; an ecclesiastical possession. 2. FRANKALMOIN. almoin. See FRANKALMOIN. almoner (al-ma-nar). A person charged with distribut ing the alms of a monarch, religious house, or other institution. This office was first instituted in religious houses and although formerly one of importance is now almost a sinecure. alms (ahmz or ahlmz). Charitable donations; any type of relief bestowed on the poor. alms fee. Hist. A fee held by frankalmoin. See FRANKA LMOIN. almshouse. Archaic. A dwelling for the publicly or pri vately supported poor ofa city or county. alms land. Hist. Land held in frankalmoin. See FRANKA LMOIN. alnager (al-na-jar). [Law Latin] Hist. A royal official responsible for collecting taxes (the alnage) on woolen cloth. The tax was abolished in 1699. alod. See ALLODIUM. alode. See ALLODIUM. alodium. See ALLODIUM. a lour foy (ah loor fwah). [Law French "in their faith"] In their allegiance. alpha subclass. Patents. In U.S. patent law, a patent clas sification that has an alphabetic suffix. alpha testing. Intellectual property. The first phase of operational experimenting with a software program before the program's production release, usu. at the developer's site . Often, alpha testing involves only modular or component testing and not system testing. Alpha testing is usu. followed by beta testing, in which the entire system is tested at a customer's site before the product is released to the general public. Cf. BETA TESTING. ALTA. abbr. American Land Title Association. alta proditio (al-ta proh-dish-ee-oh). [Law Latin] See TREASON. altarage (awl-tar-ij). Eccles. law. 1. The offerings made upon an altar or to a church. 2. An endowment or hon orarium received by a priest for services performed at the altar. alta via (al-ta VI-a). [Law Latin] A highway. alteration. 1. Property. A substantial change to real estate, esp. to a structure, usu. not involving an addition to or removal of the exterior dimensions of a build ing's structural parts . Although any addition to or improvement of real estate is by its very nature an alteration, real-estate lawyers habitually use alteration in reference to a lesser change. Still, to constitute an alteration, the change must be substantial- not simply a trifling modification. structural alteration. (1905) A Significant change to a building or other structure, essentially creating a different building or structure. 2. An act done to an instrument, after its execution, whereby its meaning or language is changed; esp., the changing ofa term in a negotiable instrument without the consent of all parties to it. Material alterations void an instrument, but immaterial ones do not. An alteration is material if it (1) changes the burden of a party (as by changing the date, time, place, amount, or rate of interest), (2) changes the liabilities or duties of any party (as by adding or removing the name of a maker, drawer, indorser, payee, or cosurety), or (3) changes the operation of the instrument or its effect in evidence (as by adding words or negotiability, changing the form of an indorsement, or changing the liability from joint to several). [Cases: Alteration ofInstruments (>1-30.] "With respect to written instruments, 'alteration' gener ally means a change in an instrument's sense of language caused by a party to the instrument, and does not include such changes by non-parties or 'strangers' to the instru ment. Although the distinction is not always observed, technically an alteration by a non-party or stranger to the instrument is a 'spoliation,' not an alteration, which does not invalidate it or change the rights or liabilities of the parties in interest, so long as the original writing 91 remains legible." 4 Am. Jur. 2d Alteration of Instruments 1 (1995). material alteration. (l7c) 1. A significant change in something; esp., a change in a legal instrument suffi cient to alter the instrument's legal meaning or effect. [Cases: Alteration ofInstruments C=>1.] 2. An unau thorized change in an instrument or an addition to an incomplete instrument resulting in the modification ofa party's obligations. UCC 3-407. lCases: Altera tion ofInstruments C=>1-30.] altercation. A vehement dispute; a noisy argument. "altercation. The traditional view is that this word refers to 'a noisy brawl or dispute,' not rising to the seriousness of physical violence .... But in AmE, the word now often denotes some type of scuffling or fighting, especially in police jargon." Bryan A. Garner, A Dictionary of Modern American Usage 34 (1998). alter ego. (1879) A corporation used by an individual in conducting personal business, the result being that a court may impose liability on the individual by piercing the corporate veil when fraud has been perpe trated on someone dealing with the corporation. See PIERCING THE CORPORATE VEIL. [Cases: Corporations C=> 1.4(4).J alter-ego rule. (1939) 1. Corporations. The doctrine that shareholders will be treated as the owners of a cor poration's property, or as the real parties in interest, whenever it is necessary to do so to prevent fraud or to do justice. [Cases: Corporations C=>1.4(4).]2. Criminal law. The principle that one who defends another against attack stands in the position of that other person and can use only the amount offorce that the other person could use under the circumstances. [Cases: Assault and Battery Homicide C=>757.] altering or amending a judgment. A trial court's act of correcting a substantive mistake in a judgment, as by correcting a manifest error of law or fact. Fed. R. Civ. P. 59(e). [Cases: Federal Civil ProcedureC=>2641-2662; . Judgment alternat (awl-tC)r-nit or al-ter-nah). [French] The rotation in precedence among states, diplomats, etc., esp. in the signing of treaties. -This practice gives each diplomat a copy ofthe treaty with the diplomat'S Signature appear ing first. alternate. Parliamentary law. A proxy for a delegate, usu. chosen in the same manner as the delegate rather than chosen by the delegate. See DELEGATE (2); PROXY (1). alternate legacy. See LEGACY. alternate valuation date. Tax. The date six months after a decedent's death. -Generally, the estate can elect to appraise the decedent's property either as of the date of the decedent's death or as ofthe alternate valuation date. See BASIS. [Cases; Internal Revenue C=>4184.20; Taxation alternatim (al-tC)r-nay-tim or awl-), adv. [Latin] Inter changeably; by turns. Alternative Agricultural Research and Commercializa tion Corporation. A federally chartered corporation alternative promise in the U.S. Department of Agriculture responsible for funding the development and marketing of new nonfood products made from farm and forestry mate rials. Abbr. AARCC. alternative constituency. See NONSHAREHOLDER CON STITUENCY. alternative contract. See CONTRACT. alternative devise. See DEVISE. alternative dispute resolution. (1978) A procedure for settling a dispute by means other than litigation, such as arbitration or mediation. -Abbr. ADR. Also termed dispute resolution. See ARBITRATION; MEDIA TION. [Cases: Alternative Dispute Resolution 441,500.] "ADR can be defined as encompassing all legally permitted processes ofdispute resolution other than litigation. While this definition (or something like it) is widely used, ADR proponents may object to it on the ground that it privi leges litigation by giving the impression that litigation is the normal or standard process ofdispute resolution, while alternative processes are aberrant or deviant. That impres sion is false. litigation is a relatively rarely used process of dispute resolution. Alternative processes, especially negotiation, are used far more frequently. Even disputes involving lawyers are resolved by negotiation far more often than litigation

used far more frequently. Even disputes involving lawyers are resolved by negotiation far more often than litigation. So ADR is not defined as everything butlitigation because litigation is the norm. Litigation is not the norm. ADR is defined as everything-butlitigation because litigation, as a matter of law, is the default process of dispute resolution." Stephen J. Ware, Alternative Dispute Resolution 1.5, at 5-6 (2001). alternative expression. Patents. In a patent claim, a recitation of two or more elements or limitations that perform the same function <iron, steel, or other magnetic material> . Although once contrary to U.S. Patent and Trademark Office policy, alternative expres sions are now permitted ifthey present no uncertainty or ambiguity about the scope or clarity of the claims. Also termed alternative language. [Cases: Patents 101(5).] alternative judgment. See JUDGMENT. alternative liability. See LIABILITY. alternative mandamns. See MANDAMUS. alternative-means doctrine. (1968) Criminal law. The principle that when a crime may be committed in more than one way, the jury must be unanimous on the defendant's guilt but need not be unanimous on the possible different methods of committing the crime, as long as each possible method is supported by substan tial evidence. [Cases: Criminal Law C=>872.5.] alternative-methods-of-performance contract. See alternative contract under CONTRACT. alternative minimum tax. See TAX. alternativeness rejection. See REJECTION. alternative obligation. See OBLIGATION. alternative order. 1. ORDER (2). 2. ORDER (8). alternative pleading. See PLEADING (2). alternative promise. See PROMISE. 92 alternative relief alternative relief. See RELIEF. alternative remainder. See REMAINDER. alternative sentence. See SENTENCE. alternative writ. See WRIT. altern is vicibus (al-t3r-nis vis-i-b ..s). [Law Latin] Hist. Eccles. law. By turn; alternately. _ The patrons of two united churches could exercise their right ofpresenta tion to a benefice alternis vicibus. alterum non laedere (al-t3r-3m [orawl-] non lee-d3-ree). [Latin "not to injure another"] Roman & civil law. To hurt no one by word or deed. _ This was one of the three ge~eral precepts in which Justinian expressed the requirements ofthe law (Digest 1.1.10.1; Institutes 1.1.3). Cf. HONESTE VIVERE; SUUM CUIQUE TRIBUERE. alteruter (al-t3r-yoo-t3r or awl-). [Law Latin] One oftwo; either. altius non tollendi (al-shee-3s non t3-1en-dr). [Latin "of not raising higher"] Roman & civil law. A servitude prohibiting a landowner from building a house above a certain height. altius tollendi (al-shee-3s t .. -Ien-dI). [Latin "of raising higher"] Roman & civil law. A servitude that allows a landowner to build a house as high as desired. alto et basso. See DE ALTO ET BASSO. altum mare (al-t3m mair-ee or mahr-ee), n. [Law Latin] Hist. The high seas; the deep seas. a lui et a ses heritiers pour toujours (a lwee ay a sayz e-ree-tyay poor too-zhoor). [Law French] To him and his heirs forever. See and his heirs under HEIR. alvei mutatio (al-vee-I myoo-tay-shee-oh). [Latin fro alveus "the bed or channel ofa stream") Hist. A change in a stream's course. alveus (al-vee-3s), n. [Law Latin] Hist. The bed or channel through which a stream flows in its ordinary course. [Cases: Waters and Water Courses (;::>89.] always-speaking statute. See speaking statute under STATUTE. ALWD (ahl-w3d or al-w..d). abbr. See ASSOCIATION OF LEGAL WRITING DIRECTORS. ALWD Citation Manual. A gUide to American legal citation written and edited by legal-wri profes sionals affiliated with the Association ofL Writing Directors. -First published in 2000 as an alternative to the Bluebook, it contains one citation system for all legal documents and does not distinguish between citations in law-journal footnotes and those in other writings. The full name is the ALWD Citation Manual: A Professional System ofCitation. Often shortened to ALWD Manual. Cf. BLUEBOOK. a.m. abbr. ANTE MERIDIEM. AMA. abbr. (1911) 1. American Medical Association. 2. Against medical advice. a ma intent (ah mah an-tawn). [Law French) On my action. amalgamation (3-mal-g3-may-sh3n), n. (17c) The act of combining or uniting; consolidation <amalgamation of two small companies to form a new corporation>. See MERGER (1). [Cases: Corporations (;::>581.] -amal gamate, vb. -amalgamator, n. Amalphitan Code (3-mal-f..-t3n). Hist. A compilation of maritime law made late in the 11th century at the port of Amalfi near Naples. _ The Code was regarded as a primary source of maritime law throughout the Mediterranean to the end ofthe 16th century. -Also termed Amalphitan Table; Laws ofAmalfi; Tablets of Amalfi a manibus (ay man-3-b3s), n. [Law Latin] Hist. A royal scribe. amanuensis (<l-man-yoo-en-sis), n. [fro Latin ab-"from" + manus "hand"] 1. One who takes dictation; a scribe or secretary. 2. An assistant, esp. one with scribal respon sibilities. 3. A protege. See PROTEGJ:! (1). a manu servus (ay man-yoo S;)r-v3s). [Latin] A handser vant; scribe; secretary. ambactus (am-bak-t ..s). [Latin] Hist. 1. A messenger. 2. A servant whose services are hired out by the master. ambasciator (am-bash-ee-ay-t ..r). [Law Latin] Hist. A person sent about in the service ofanother; an ambas sador. ambassador. 1. A diplomatic officer ofthe highest rank, usu. designated by a government as its resident repre sentative in a foreign state. -Ambassadors represent the sovereign as well as the nation and enjoy many priv ileges while abroad in their official capacity, including immunity. Ambassadors are distinguished from min isters and envoys, who represent only the state where they are from and not the sovereign. Ambassadors are also generally distinguished from certain legates who have only ecclesiastical authority. But the papal nuncio and some legates, such as the legate a latere, bear the rank of ambassador. See NUNCIO; LEGATE. [Cases: Ambassadors and Consuls (;::> 1-8.] 2. A representative appointed by another. 3. An unofficial or nonappointed representative. Also spelled (archaically) embassa dor. -ambassadorial, adj. ambassadorship, n. ambassador extraordinary. An ambassador who is employed for a particular purpose or occasion and has limited discretionary powers. Cf. ambassador plenipotentiary. ambassador leger. See resident ambassador. ambassador ordinary. See resident ambassador. ambassador plenipotentiary. An ambassador who has unlimited discretionary powers to act as a sovereign's or government's deputy, esp. to carry out a particu lar task, such as treaty negotiations. -Also termed minister plenipotentiary; envoy plenipotentiary. Cf. ambassador extraordinary. ordinary ambassador. See resident ambassador. resident ambassador. An ambassador who resides in a foreign country as the permanent representative of a sovereign or nation. _ A resident ambassador has 93 the right to request a personal interview with the host nation's head of state. Also termed ambassador leger; ordinary ambassador; ambassador ordinary. [Cases: Ambassadors and Consuls C=>3.] AMBER. abbr. See AMBER ALERT. Amber Alert. A system by which the police can rapidly broadcast to the general public a report of a missing or endangered child by means of radio and televi sion announcements. _ The alert is named for Amber Hagerman ofTexas, a nine-year-old who was abducted and murdered in 1996 by an unknown person. The system has been adopted by many communities in the U.S. and Canada. Local variations exist. In Arkansas, for example, the system is called the Morgan Nick Alert after a child who was abducted by a stranger in 1995. When the first word is in all capital letters, AMBER is an acronym meaning America's Missing: Broadcast Emergency Response. Also termed Amber Plan. See AMBER'S LAW. Cf. CODE ADAM. Amber Hagerman Act. See AMBER'S LAW. Amber's law. A federal law that requires, among other things, life in prison without parole for two-time sex offenders whose victims are children, and reports to Congress about judges whose sentences fall below federal guidelines. _ The law was named for Amber Hagerman of Texas, a nine-year-old girl who was abducted and murdered by an unknown person in 1996. -Also termed Amber Hagerman Act. See AMBER ALERT. [Cases: Sentencing and Punishment C=>1236.] A.M. Best Company. An investment-analysis and -advisory service. _ A.M. Best rates the financial strength of businesses from A++ (strongest) to A+, A, A-, B++, and so on to C-and D. A grade of E means that the company is under state supervision, and an F indicates that the company is in liquidation. ambidexter. 1. A judge or embracer who takes bribes from both sides in a dispute. 2. A lawyer who abandons the party that he or she initially represented in a dispute to represent the opposing party in the same suit. 3. A person who engages in double-dealing. "Ambidexter is he that, when a matter is in suit between men, takes money of the one side and of the other, either to labour the suit, or such like; or if he be of the jury, to give his verdict." William Rastell, Termes de /a Ley 28 (lst. Am. ed. 1812). ambiguitas latens (am-bi-gyoo-a-tas lay-tenz). See latent ambiguity under AMBIGUITY. ambiguitas latens et ambiguitas patens (am-bi-gyoo-a tas lay-tenz et am-bi-gyoo-a-tas pay-tenz). [Latin] Hist. Latent and patent ambiguity. See latent ambiguity and patent ambigUity under AMBIGUITY. ambiguitas patens (am-bi-gyoo-a-tas pay-tenz). See patent ambiguity under AMBIGUITY. ambiguity (am-bi-gyoo-a-tee), n. (15c) An uncertainty of meaning or intention, as in a contractual term or statutory provision. Cf. MEANING. [Cases: Contracts ambiguity C=> 143(2); Statutes (;::::> 190.] ambiguous (am-big yoo-as), adj. "In the context of statutory interpretation the word most frequently used to indicate the doubt which ajudge must entertain before he can search for and, if possible, apply a secondary meaning is 'ambiguity'. In ordinary language this term is often confined to situations in which the same word is capable of meaning two different things, but, in relation to statutory interpretation, judicial usage sanc tions the application of the word 'ambigUity' to describe any kind of doubtful meaning of words, phrases or longer statutory proviSions. Hinchy's case prompted the sugges tion that if, in a particular context, words convey to differ entjudges a different range of meanings 'derived from, not fanciful speculations or mistakes about linguistic usage, but from true knowledge about the use of words, they are ambiguous.'" Rupert Cross, Statutory Interpretation 76-77 (1976). ambiguity on the factum. An ambigUity relating to the foundation of an instrument, such as a question relating to whether a testator intended for a particular clause to be part of an agreement, whether a codicil was intended to republish a former will, or whether the residuary clause was accidentally omitted. calculated ambiguity. A purposeful use of unclear language, usu. when two negotiating parties cannot agree on clear, precise language and therefore leave a decision-maker to sort out the meaning in case of a dispute. -Strictly speaking, this is a misnomer: the more precise term is vagueness, not ambiguity. See VAGUENESS (1). extrinsic ambiguity. See latent ambiguity. intrinsic ambiguity. See patent ambiguity. latent ambiguity. (lSc) An ambiguity that does not readily appear in the language of a document, but instead arises from a collateral matter when the docu ment's terms are applied or executed <the contract contained a latent ambiguity: the shipping terms stated that the goods would arrive on the Peerless, but two ships have that name>. Also termed extrinsic ambiguity; equivocation; ambiguitas latens. [Cases; Contracts C=>143(2); Evidence C=>452.] "Instead of this word 'equivocation,' the phrase 'latent ambiguity' is sometimes used by courts, 'latent' because it does not develop until we seek to apply it and then discover the equivocation

is sometimes used by courts, 'latent' because it does not develop until we seek to apply it and then discover the equivocation. This phrase was invented by Lord Bacon, in one of his maxims, and it long held sway; but it has only served to confuse discussion, and his other word for the same thing, 'equivocation,' is more suitable, and has come into general use since Professor Thayer's masterly analysis of the subject some fifty years ago: John H. Wigmore, A Students' Textbook of the Law ofEvidence 529 (1935). ~In fact, the usual term today is latent ambiguity. ~Eds. patent ambiguity (pay-tant). (ISc) An ambigUity that dearly appears on the face of a document, arising from the language itself <the nonperformance was excused because the two different prices expressed in the contract created a patent ambiguity>. Also termed intrinsic ambiguity; ambiguitas patens. [Cases: Contracts C=> 143(2); Evidence C=>45Lj "[Llatent ambiguity ... must be carefully distinguished from patent ambiguity, where words are omitted, or con tradict one another; for in such cases explanatory evidence 94 ambiguity doctrine is not admissible. Where a bill of exchange was expressed in words to be drawn for 'two hundred pounds' but in figures for '245,' evidence was not admitted to show that the figures expressed the intention of the parties." William R. Anson, Principles of the Law of Contract 401 (Arthur L Corbin ed., 3d Am. ed. 1919). ambiguity doctrine. See CONTRA PROFERENTEM. ambit (am-bit). (14c) 1. A boundary line or limit; esp., the scope ofa statute or regulation, or the sphere of influ ence and authority of an agency, committee, depart ment' or the like. 2. A space surrounding a house or town. ambitus (am-bi-tas), n. [Latin ambitus "deviousness, corruption"] Hist. The procuring of a public office by money or gifts; the unlawful buying and selling of a public office. ambulance chaser. 1. A lawyer who approaches victims ofaccidents in hopes of persuading them to hire the lawyer and sue for damages. 2. A lawyer's agent who engages in this activity. 3. Tendentious slang. An attorney. [Cases; Attorney and Client (;=>32(9).] ambulance-chasing, n. ambulance-chasing. A blatant form of solicitation in which the lawyer (either personally or through an agent) urges injured people to employ the lawyer to rep resent them. [Cases; Attorney and Client (;=>32(9).] ambulatory (am-bya-Ia-tor-ee), adj. (16c) 1. Able to walk <the accident victim is still ambulatory>. 2. Capable of being altered or revised; not yet legally :fixed <a will is ambulatory because it is revocable until the testator's death>. ambulatory automatism. See AUTOMATISM. ambulatory disposition. See DISPOSITION (2). ambulatory wilL See WILL. a me (ay mee), [Latin] From me. -This phrase was used in feudal grants to denote tenure held directly of the chieflord. The phrase is short for a me de superiore mea (ay mee dee s[y]oo-peer-ee-or-ee mee-oh), meaning "from me ofmy superior." Cf. DE ME. a me de superiore meo (ay mee dee s[y]oo-peer-ee-or-ee mee-oh). [Law Latin] Hist. From me, ofmy superior. In a feudal land grant, this phrase provided that when feudal title was completed, the grantee would hold the land ofthe grantor's superior. ameliorate (a-meel-ya-rayt), vb. (l8c) 1. To make better <the charity tries to ameliorate the conditions of the homeless>. 2. To become better <with time, the situa tion ameliorated>. ameliorating waste. See WASTE (1). amelioration, n. 1. The act ofimproving something; the state ofbeing made better. 2. An improvement. -ame liorative, adj. ameliorative waste. See ameliorating waste under WASTE (1). amenable (<J-mee-n<J-b<JI or -men-), adj. (16c) Legally answerable; liable to being brought to judgment <amenable to process>. -amenability, n. amend, vb. (13c) 1. To make right; to correct or rectify <amend the order to :fix a derical error>. 2. To change the wording of; sped., to formally alter (a statute, constitution, motion, etc.) by striking out, inserting, or substituting words <amend the legislative bill>. See AMENDMENT (3). amendable, adj. amendabil ity, n. amend a previous action. See amend something previ ously adopted. amend something previously adopted. Parliamentary law. (Of a deliberative assembly) to change an oth erwise final text. Also termed amend a previous action. amendatory (a-men-da-tor-ee), adj. Designed or serving to amend; corrective <an amendatory rider to an insur ance policy>. amended complaint. See COMPLAINT. amended pleading. See PLEADING (1). amended return. See TAX RETURN. amende honorable (<J-mend on-a-ra-b",l or a-mawnd on-a-rah-bal). [French "honorable reparation"] Hist. A formal reparation for an offense or injury, done by making an open and usu. humiliating acknowledg ment and apology so as to restore the victim's honor. This apology could be accomplished, for example, by walking into church with a rope around the neck and a torch in hand, begging forgiveness from the injured party. amende profitable (a-mend proh-fee-tahb-Ia), n. Roman Dutch law. In a defamation action, reparations made by a defendant who pays a sum that the plaintiff has named under oath as being less than full satisfaction for the claim. amender, n. One who amends (a document, etc.). amendment. (17c) 1. A formal revision or addition proposed or made to a statute, constitution, pleading, order. or other instrument; specif., a change made by addition, deletion, or correction; esp., an alteration in wording. [Cases: Constitutional Law Federal Civil Procedure Pleading (;=>229; Statutes 131.] 2. The process of making such a revision. amendment as ofcourse. An amendment, usu. to pleadings, that a party has a statutory right to apply for without the court's permission. [Cases; Federal Civil Procedure (;=>825; Pleading (;=>231.] amendment on court's own motion. A change to a pleading or other document by the judge without a motion from a party. [Cases: Federal Civil Procedure (;=>826; Pleading (;=>232.] nunc pro tunc amendment (n;mgk proh tangk or nuungk proh tuungk). An amendment that is given retroactive effect, usu. by court order. [Cases; Judgment (;=>326; Motions (;=>56(2).] 3. Parliamentary law. A motion that changes another motion's wording by striking out text, inserting or 95 adding text, or substituting text. See AMEND (2). Cf. BLANK (2). amendment by adding. An amendment that places new wording at the end of a motion or of a paragraph or other readily divisible part within a motion . Some authorities treat amendment by adding as a form of amendment by inserting. Cf. amendment by insert ing. amendment by inserting. An amendment that places new wording within or around a motion's current wording. _ Some authorities distinguish amend ment by adding, which places new wording after the current wording, from amendment by inserting. Cf. amendment by adding. amendment by striking out. An amendment that removes wording from a motion's current wording. amendment by striking out and inserting. An amend ment that removes wording and replaces it with alter native wording . The motion can properly apply only to inserting wording in place of the wording being struck out; it cannot strike out some wording and insert new wording in a different place. See amend ment by substituting; CREATE A BLANK. amendment by substituting. 1. A special type ofamend ment by striking out and inserting that replaces an entire main motion or a paragraph or other readily divisible part within a main motion; an amendment of greater scope than a perfecting amendment. Cf. perfecting amendment. 2. An amendment by striking out and inserting. See amendment by striking out and inserting. -Also termed amendment in the nature ofa substitute (in sense 1); substitute; substitution; substitute amendment. _ Parliamentary writers differ on when an amendment by striking out and inserting qualifies as an amendment by substitut ing. Some manuals treat the two as equivalent and apply the same rules to them. Others maintain that an amendment is not a substitute unless it replaces the entire main motion or at least a readily divisible part within the main motion and apply different rules to an amendment by substituting than to a less drastic amendment. amendment in the nature ofa substitute. See amend ment by substituting (1). amendment ofthe first degree. See primary amend ment. amendment of the first rank. See primary amend ment. amendment of the second degree. See secondary amendment. amendment ofthe second rank. See secondary amend ment. amendment to the amendment. See secondary amend ment. amendment to the main question. See primary amend ment. amendment to the text. See primary amendment. amendment committee amendment. An amendment to a motion reported by a committee to which the motion was referred. first-degree amendment. See primary amendment. floor amendment. An amendment offered from the floor by an individual member, as distinguished from a committee amendment. Cf. committee amend ment. friendly amendment. An amendment that the mover ofthe motion being amended supports, and to which no other member objects. 'The term 'friendly amendment' is often used to describe an amendment offered by someone who is in sympathy with the purposes of the main motion, in the belief that the amendment will either improve the statement or effect of the main motion, presumably to the satisfaction of its maker, or will increase the chances of the main motion's adoption. Regardless of whether or not the maker of the main motion 'accepts' the amendment, it must be opened to debate and voted on formally (unless adopted by unani mous consent) and is handled under the same rules as amendments generally." Henry M. Robert, Robert's Rules of Order Newly Revised 12, at 154 (lOth ed. 2000). "Often, such an amendment is proposed as a 'friendly amendment: simply indicating that the member propos ing the amendment feels it will be acceptable to the maker of the main motion. If the maker of the original motion does not wish to accept the amendment, the amendment must then receive a second to come before the assembly, and will receive the usual consideration by the assembly. However, even the acceptance of the proposed amend ment by the maker of the motion is simply a statement of support, and every member of the assembly retains the right to object to the amendment's adoption by general consent, and to debate and vote on the amendment." Alice Sturgis, The Standard Code ofParliamentary Procedure 53 (4th ed. 2001). hostile amendment. An amendment that is opposed by the supporters ofthe main motion. killer amendment. An amendment that has the effect, intended or not, ofensuring the defeat of the main motion. nongermane amendment. An amendment that adds an unrelated rider . A nongermane amendment is out oforder in most ordinary assemblies and many legislative bodies. But some legislative bodies, in juris dictions where legislation may embrace more than one subject, allow nongermane amendments to a bill. See RlDER. perfecting amendment. An amendment that merely edits the form ofa main motion or a primary amend ment but does not substantially change its content; an amendment of lesser scope than an amendment by substituting. Cf. amendment by substituting (1). primary amendment. An amendment that directly amends the main motion. Cf. secondary amend ment. pro forma amendment. An amendment moved solely for the purpose ofobtaining the floor and treated as withdrawn once the mover has spoken. -The custom ary pro forma amendment in Congress is a motion "to strike the last word." 96 amendment after allowance secondary amendment. An amendment that alters a pending primary amendment. Cf. primary amend ment. second-degree amendment. See secondary amend ment. substitute amendment. 1. A secondary amendment that substantially replaces rather than edits a primary amendment. 2. See amendment by substituting. amendment after allowance. See PATENT-APPLICATION AMENDMENT. amendment after appeal. See PATENT-APPLICATION AMENDMENT. amendment after final action. See PATENT-APPLICATION AMENDMENT. amendment after payment of issue fee. See PATENT APPLICATION AMENDMENT. amendment before first action. See preliminary amend mentunder PATENT-APPLICATION AMENDMENT. amendment by implication. A rule ofconstruction that allows a person to interpret a repugnant provision in a statute as an implicit modification or abrogation of a provision that

allows a person to interpret a repugnant provision in a statute as an implicit modification or abrogation of a provision that appears before it. Amendments by implication are not favored. See United States v. Welden, 377 U.S. 95, 102 n.12, 84 S.Ct. 1082, 1087 n.12 (1964). [Cases: Statutes amendment in excess offiling fee. See PATENT-APPLI CATION AMENDMENT. amendment ofindictment. (1828) The alteration ofthe charging terms of an indictment, either literally or in effect, after the grand jury has made a decision on it. The indictment usu. cannot be amended at trial in a way that would prejudice the defendant by haVing a trial on matters that were not contained in the indictment. To do so would violate the defendant's Fifth Amendment right to indictment by grand jury. [Cases: Indictment and Information ~159.] constructive amendment ofindictment. The admission ofevidence that modifies the indictment by modify ing the elements of a charged offense or by establish ing an offense different from or in addition to those in the indictment. [Cases: Indictment and Informa tion~159.] amendment ofregistration. See TRADEMARK-APPLICA TION AMENDMENT. amendment on court's own motion. See AMENDMENT (2). amendment to allege use. See TRADEMARK-APPLICA TION AMENDMENT. amendment to different register. See TRADEMARK APPLICATION AMENDMENT. amends, n. Compensation given for a loss or injury; reparation. amenity. [fro Latin amoenitas "pleasantness"] Something tangible or intangible that increases the enjoyment ofreal property, such as location, view, landscaping, security, or access to recreational facilities. a mensa et thoro (ay men-S<l et thor-oh). [Latin "from board and hearth"] (17c) (Of a divorce decree) effecting a separation ofthe parties rather than a dissolution of the marriage <a separation a mensa et thoro was the usual way for a couple to separate under English law up until 1857>. Not all states provide for such a pro ceeding. See divorce a mensa et thoro under DIVORCE; SEPARATION; A VINCULO MATRIMONII. [Cases: Divorce ~155.] amerce (<l-mars), vb. 1. To impose a fine or penalty that is not fixed but is left to the court's discretion; to punish by amercement. 2. To fine or punish in any manner. amerceable (<l-mar-s<l-b<ll), amerciable (<l-m3r-See <l-bal), adj. 'There were two more aspects to this financial scheme of permitting suitors to use the royal courts for a con sideration. The practice developed of 'amercing' or fining those who were 'in the mercy of the king' because they had put forward a false claim, or had made a false defense. In other words the loser of the suit had to pay a fine for his supposedly unjust effort to deny or resist the claim of his opponent." Charles Herman Kinnane, A First Book on Anglo-American Law 272 (2d ed. 1952). amercement (a-m3rS-m<lnt), n. [fro Law French estre a merci "to be at the mercy (of another)," fro Latin merces "payment"] (14c) 1. The imposition ofa discretionary fine or penalty by a court, esp. on an official for mis conduct <an amercement proceeding>. 2. The fine or penalty so imposed <an amercement charged to the sheriff for failing to return the writ ofexecution>. Also termed cashlite; (archaically) amerciament; mer ciament. [Cases: Sheriffs and Constables ~125.] American Academy ofActuaries. A national organiza tion ofactuaries whose members must meet specified educational requirements and have at least three years of actuarial work experience . Created in 1965, the Academy promotes public awareness ofthe actuarial profession, represents the profession before federal and state governments, and sponsors continUing-education conferences. Abbr. AAA. See ACTUARY. American Accounting Association. An organization of accounting practitioners, educators, and students, founded in 1916 to promote accounting as an academic discipline by sponsoring research projects and continu ing-education seminars. -Abbr. AAA. American Arbitration Association. A national orga nization that maintains a panel of arbitrators to hear labor and commercial disputes. Abbr. AAA. [Cases: Alternative Dispute Resolution ~238; Labor and Employment ~1576.] American Bankers Association. A voluntary trade association of banking institutions, including banks, trust companies, and savings banks and associations, whose members represent the vast majority ofbanking deposits in the United States . The association was founded in 1875. -Abbr. ABA. 97 American Bar Association. A voluntary national orga nization oflawyers organized in 1878. Among other things, it participates in law reform, law-school accredi tation, and continuing legal education in an effort to improve legal services and the administration of justice. Abbr. ABA. American Bar Foundation. An outgrowth of the American Bar Association involved with sponsoring and funding projects in law-related research, education, and social studies. -Abbr. ABF. American Bureau of Shipping. An organization of marine underwriters, shipbuilders, and marine carriers charged with conducting research, technological devel opment, officer training, and standards of building, maintaining, and operating seagoing vessels and sta tionary offshore facilities . The organization was founded in 1862 as the American Shipbuilders' Associa tion. Its name was changed in 1898, and it was formally recognized in the Merchant Marine Act of 1920. Its core mission is to promulgate rules for evaluating the design ofnew vessels and structures and for maintain ing all existing vessels and structures. Abbr. ABS. See ABS RULES. [Cases: Shipping <>11, 12.] American Civil Liberties Union. A national organi zation whose primary purpose is to help enforce and preserve individual rights and liberties guaranteed by federal and state constitutions. Abbr. ACLU. American clause. Marine insurance. A policy provision that prevents an insurer from claiming contribution from a policy later purchased by the insured. [Cases: Insurance <>2247.J American common law. See COMMON LAW (2). American depositary receipt. A negotiable instrument issued by an American bank as a substitute for stock shares in a foreign-based corporation . ADRs are the most common method by which foreign companies secure American shareholders. Companies that offer ADRs maintain a stock listing in their domestic market in their domestic currency, while the ADRs are held in U.S. dollars and listed on a U.S. stock exchange, usu. the New York Stock Exchange. The holder ofthe receipt is entitled to receive the specified securities upon presen tation ofthe ADR to the depositary institution -Abbr. ADR. Also termed American depository receipt. Cf. AMERICAN DEPOSITARY SHARE. American depositary share. A foreign security that is exempt from reporting requirements and deposited in an American bank to be held for private sale . American depositary receipts are used to transfer the securities. Abbr. ADS. Cf. AMERICAN DEPOSITARY RECEIPT. American depository receipt. See AMERICAN DEPOSI TARY RECEIPT. American Experience Table ofMortality. Insurance. A chart developed by insurers in the 18608 to predict mortality rates and thereby more accurately set insur ance rates . The Table was widely used by insurers to establish rates until the 1950s. American Inventors Protection Act American Federation ofLabor and Congress of Indus trial Organizations. A voluntary affiliation of more than 100 labor unions that operate autonomously yet benefit from the affiliation's political activities and its establishment of broad policies for the national labor movement. -Abbr. AFL-CIO. American Federation of Musicians. A labor union composed of musicians, orchestra leaders, contractors, copyists, orchestrators, composers, and arrangers . In the recording industry, artists hired by record compa nies that have agreements with the union must be paid according to the union's set scale. -Abbr. AF ofM. American Federation ofTelevision and Radio Artists. A labor union composed of actors, announcers, nar rators, and vocalists. In the entertainment industry, performers hired by producers that have agreements with the union must be paid according to the union's set scale. It is affiliated with the AFL-CIO. -Abbr. AFTRA. American Forces Information Service. An agency in the u.s. Department of Defense responsible for oper ating the Armed Forces Radio and Television Service, the Armed Forces Press and Publications Service, and a Broadcast Center . Established in 1977, the Service publishes various periodicals and pamphlets and the Stars and Stripes newspapers. -Abbr. AFIS. American Guild of Variety Artists. A labor union composed of performers in nightclubs, cabarets, theaters, and other areas of live entertainment. _ The Guild regulates its members' contracts with agents through an agreement with the Artists' Representa tives Association. Abbr. AGVA. American Indian law. See NATIVE AMERICAN LAW. American Inns ofConrt Foundation. See INN OF COURT (2). American Institute of Parliamentarians. A national nonprofit educational organization founded in 1958 to improve and promote the rules of parliamentary pro cedure as a way of implementing sound democratic principles. Abbr. AlP. American Intellectnal Property Law Association. A national bar association oflawyers who practice patent, trademark, copyright, trade-secret, and unfair-compe tition law. The association was formerly known as the American Patent Law Association. Membership is also open to law students who are interested in intellectual property law. -Abbr. AIPLA. American Inventors Protection Act. Patents. A 1999 statute designed to (1) curb deceptive practices by invention-promotion companies, (2) reduce patent fees, (3) provide a defense against infringement for a party who in good faith reduced a patented invention to practice at least one year before a patent's effective filing date, (4) extend the patent term when the PTO is responsible for a delay in issuance, and (5) require publication of a patent application 18 months after its filing unless the applicant requests otherwise. Pub. L. No. 106-113, 113 Stat. 1537-544. -Abbr. AIPA. 98 American Judicature Society American Judicature Society. An organization made up of judges, lawyers, and lay people for the purpose ofimproving the administration of justice. The AJS was founded in 1913. Its interests include ensuring the judiciary's independence, improving judicial selection and the performance ofjuries, and educating the public about the justice system. Abbr. AJS. American Law Institute. An organization of lawyers, judges, and legal scholars who promote consistency and simplification of American law by publishing the Restatements of the Law, and other model codes and treatises, as well as promoting continuing legal educa tion. Abbr. ALI. American Law Institute test. See SUBSTANTIAL-CAPAC ITY TEST. American Lloyd's. See LLOYD'S UNDERWRITERS. American National Standards Institute. A private non profit organization, founded in 1918, that administers the U.S. standardization- and conformity-assessment system and coordinates voluntary participants in the system. Abbr. ANSI. American option. See OPTION. American Patent Law Association. See AMERICAN INTELLECTUAL PROPERTY LAW ASSOCIATION. American Printing House for the Blind. A federally aided institution that assists blind children by distrib uting Braille books, talking books, and educational aids without charge . The printing house was incorporated in Kentucky in 1858. Abbr. APH. American rule. (1868) 1. The general policy that allliti gants, even the prevailing one, must bear their own attorney's fees . The rule is subject to bad-faith and other statutory and contractual exceptions. Cf. ENGLISH RULE. [Cases: Costs ~194.16; Federal Civil Procedure ~2737.1.] 2. The doctrine that a witness cannot be questioned on cross-examination about any fact or cir cumstance not connected with the matters brought out in the direct examination. [Cases: Witnesses ~269.] American share. See SHARE (2). American Society of Composers, Authors & Publish ers. Copyright. One ofthe u.s. performing-rights soci eties that licenses and polices the public performance of nondramatic musical works on behalf ofthe copyright owners. Abbr. ASCAP. American Society ofWriters on Legal Subjects. The formal name for Scribes, an association oflawyers dedi cated to the improvement oflegal writing . Founded in 1953, it sponsors annual writing competitions and publishes The Scribes Journal ofLegal Writing, the first journal devoted exclusively to legal writing. American Stock Exchange. An organized stock exchange and self-regulating organization under the Securities Exchange Act of 1934, located in New York City and engaged in national trading of corporate stocks . It often trades in the securities of young or small com panies because its listing requirements are less strict than those of the New York Stock Exchange. Abbr. AMEX; ASE. [Cases: Exchanges Securities Regulation ~40.l0-40.16.J American-style option. See American option under OPTION

Regulation ~40.l0-40.16.J American-style option. See American option under OPTION. Americans with Disabilities Act. A federal statute that prohibits discrimination in employment, public services, and public accommo' inst any person because of the person's disability physical or mental impairment that substantially limits one or more ofthe major life activities"). 42 USCA 12101 12213. Under the ADA and related regulations and caselaw, major life activities include those that an average person in the general population can perform with little or no difficulty, such as seeing, hearing, sleeping, eating, walking, traveling, and working. The statute applies to both private and governmental entities but not to a private employer having fewer than 15 employees. 42 USCA 1211l(5)(A). Abbr. ADA. See DISABILITY (2); MAJOR LIFE ACTIVITY. [Cases: Civil Rights ~1016, 1053, 1215.] AMEX (am-eks). abbr. (1961) AMERICAN STOCK EXCHANGE. ami (;}-mee), n. [Law French, fro Latin amicus] A friend. This term appears in several traditional legal phrases, such as prochein ami ("next friend"). Also spelled amy. See NEXT FRIEND. amiable compositor. Int'llaw. An unbiased third party, often a head of state or high government official, who suggests a solution that disputing countries might accept of their own volition. -Also termed aimable compositeur. amicable action. See test case (1) under CASE. amicable compounder. See COMPOUNDER (1). amicable scire facias to revive a judgment. See SCIRE FACIAS. amicable suit. See test case (1) under CASE. amicus. 1. See AMICUS CURIAE. 2. See amicus briefunder BRIEF (1). amicus brief. See BRIEF (1). amicus curiae (;}-mee-k;}s kyoor-ee- lor;}-mI-k;}s kyoor ee-ee also am-i-bs). [Latin "friend ofthe court"] (17c) A person who is not a party to a lawsuit but who peti tions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. -Often shortened to amicus. -Also termed friend ofthe court. PI. amici curiae (;l-mee-kee or ;}-ml-SI or ;}-ml-kI). [Cases: Amicus Curiae ~1-3.J Amish exception. An exemption of the Amish from compulsory-school-attendance laws under the Free Exercise Clause of the First Amendment . In Wis consin V. Yoder, 406 U.S. 205, 92 S.Ct. 1526 (1972), the Supreme Court held that Amish children could not be compelled to attend high school even though they were within the age range of the state's compulsory-atten dance law. The Court has very narrowly construed the Amish exception and has refused to extend it to non 99 Amish children. See COMPULSORY-ATTENDANCE LAW; FREE EXERCISE CLAUSE. [Cases: Constitutional Law (;::;> 1343; Schools (;::;>160.] amita (am-;:l-t;:l). [Latin] Civil law. The sister of one's father; an aunt on the father's side. PI. amitae. amitina (am-;:l-tI-n;:l). [Latin] Civil law. The daughter of a paternal aunt or maternal uncle; a female first cousin. Pl. amitinae. amitinus (am-;:l-tl-n;:ls). [Latin] Civil law. The son of a paternal aunt or maternal uncle; a male first cousin. PI. amitini. amittere curiam (;:l-mit-;:l-ree kyoor-ee-;:lm), vb. [Law Latin] Rist. To lose the privilege ofattending court. amittere legem terrae (;:l-mit-;:l-ree lee-j;:lm ter-ee). See LIBERAM LEGEM AMITTERE. amittere liberam legem (;:l-mit-;:l-ree Hb-dr-;:lm lee-jam). See LIBERAM LEGEM AMITTERE. amnesty, n. (16c) A pardon extended by the govern ment to a group or class ofpersons, usu. for a political offense; the act ofa sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted <the 1986 Immigration Reform and Control Act provided amnesty for undocu mented aliens already present in the country>. -Unlike an ordinary pardon, amnesty is usu. addressed to crimes against state sovereignty that is, to political offenses with respect to which forgiveness is deemed more expedient for the public welfare than prosecution and punishment. Amnesty is usu. general, addressed to classes or even communities. Also termed general pardon. See PARDON. [Cases: Pardon and Parole (;::;> 26.] amnesty, vb. "Amnesty . .. derives from the Greek amnestia (,forget ting'), and has come to be used to describe measures of a more general nature, directed to offenses whose criminal ity is considered better forgotten." Leslie Sebba, "Amnesty and Pardon," in 1 Encyclopedia ofCrime and justice 59, 59 (Sanford H. Kadish ed., 1983). express amnesty. Amnesty granted in direct terms. implied amnesty. Amnesty indirectly resulting from a peace treaty executed between contending parties. amnesty clause. A clause, esp. one found in a peace treaty, that wipes out past offenses such as treason, sedition, rebellion, and even war crimes. - A sover eign may grant amnesty to all guilty persons or only to certain categories of offenders. Amnesty International. An international nongov ernmental organization founded in the early 1960s to protect human rights throughout the world. -Its mission is to secure throughout the world the obser vance ofthe Universal Declaration ofHuman Rights." Amnesty Int'l Statute, art. 1. a morte testatoris (ay mor-tee tes-td-tor-is). [Latin] Rist. From the death of the testator. -The phrase appeared in reference to the moment when a legacy vests in the beneficiary. amount realized amortization (am-;:lr-t;:l-zay-sh;:ln), n. (1851) 1. The act or result of gradually extinguishing a debt, such as a mortgage, usu. by contributing payments of principal each time a periodic interest payment is due. negative amortization. An increase in a loan's princi pal balance caused by monthly payments insufficient to pay accruing interest. 2. The act or result of apportioning the initial cost of a usu. intangible asset, such as a patent, over the asset's useful life. Cf. DEPRECIATION. Sometimes also termed amortizement. amortization reserve. See RESERVE. amortization schedule. A schedule of periodic payments of interest and principal owed on a debt obligation; specif., a loan schedule showing both the amount of principal and interest that is due at regular intervals over the loan term and the remaining unpaid principal balance after each scheduled payment is made. amortize, vb. (1867) 1. To extinguish (a debt) gradu ally, often by means of a sinking fund. 2. To arrange to extinguish (a debt) by gradual increments. 3. Rist. To alienate or convey lands to a corporation (that is, in mortmain). -Also spelled amortise. See MORTMAIN. amortized loan. See LOAN. amortized mortgage. See MORTGAGE. amortizement. See AMORTIZATION. amotion. (17c) 1. A turning out, as the eviction of a tenant or the removal of a person from office. [Cases: Landlord and Tenant (;::;>275; Officers and Public Employees 70.] 2. The common-law procedure available to share holders to remove a corporate director for cause. [Cases: Corporations (;::;>294.] ''The cases do not distinguish clearly between disfranchise ment and amotion. The former applies to members, and the latter only to officers; and if an officer be removed for good cause, he may still continue to be a member of the corporation. Disfranchisement is the greater power, and more formidable in its application; and in joint stock or moneyed corporations no stockholder can be disfran chised, and thereby deprived of his property or interest in the general fund, by any act of the corporation, Without at least an express authority for that purpose." 2James Kent, Commentaries on American Law *298 (George Comstock ed., 11th ed. 1866). 3. The wrongful moving or carrying away ofanother's personal property. amount in controversy. (1809) The damages claimed or relief demanded by the injured party in a lawsuit. For a federal court to have diversity jurisdiction, the amount in controversy must exceed $75,000. 28 USCA 1332(a). -Also termed jurisdictional amount; matter in controversy. See DIVERSITY OF CITIZENSHIP; AGGRE GATION DOCTRINE. [Cases: Courts C=>119, 167; Federal Courts (;::;>335.] amount realized. Tax. The amount received by a taxpayer for the sale or exch an asset, such as cash, property, services recei or debts assumed by a buyer. Cf. GAIN (3); LOSS (2). [Cases: Internal Revenue (;::;>3194; Taxation (;::;>3466.] 100 amove amove, vb. To remove (a person) from an office or position. -amoval, n. amoveas manus (ay-moh-vee-;Js man-;Js). [Law Latin "that you remove your hands") Hist. 1. A judgment ordering the Crown to relinquish possession ofland to the complainant . The judgment is so called from the emphatic words quod manus domini regis amoveantur ("that the hands of the king be removed"). 2. The writ issued on the judgment. amparo. Mexican law. A summary proceeding intended to vindicate an individual's or company's rights without necessarily establishing a precedent for similarly situated parties. -Also termed judicio de amparo. ampliatio (am-plee-ay-shee-oh), n. [Latin) Roman law. 1. The act of deferring or reserving judgment. 2. In a criminal trial before a comitia, the repeating of evidence at the jury's request. PI. ampliationes (am plee-ay-shee-oh-neez). ampliation (am-plee-ay-sh;Jn). Civil law. An extending; a postponement of the decision in a case. amplius (am-plee-;Js), adj. & adv. [Latin) Hist. More; further. AMS. abbr. AGRICULTURAL MARKETING SERVICE. AMT. abbr. See alternative minimum tax under TAX. Amtrak. See NATIONAL RAILROAD PASSENGER CORPO RATION. a multo fortiori (ay m;Jl-toh for-shee-or-I). [Latin) By far the stronger reason. Cf. AFORTIORI. amusement tax. See TAX. amy (;J-mee), n. [Law French) A friend . This is an alter native spelling ofami. See AMI. anaconda clause. See MOTHER HUBBARD CLAUSE (1). anacrisis (an-;J-krI-sis). Civil law. An investigation or inquiry, esp. one conducted by torture. analog. Patents. A different material, usu. a chemical or DNA sequence, that produces the same result as the specified material when used in a certain way. To prevent others from free-riding on their innova tion without technically infringing their exclusive rights, patent applicants often include analogs in their claims. -Also spelled analogue. -Also termed func tional analog; equivalent. analogous art. See ART. analogous use. 1. Patents. The application of a process already known in one field of art to produce a similar result in another field . Unless the fields are so unre lated or the outcomes so different as to produce a novel, useful, and nonobvious result, an analogous use is not patentable. [Cases: Patents (::::>27(1).) 2. Trade marks. The use of a mark in marketing and advertis ing a product or service before the actual sale of the product or service, in order to establish the mark's use in commerce . For the owner to take advantage of the analogous-use doctrine, the marketing campaign must be substantial and the product or service must be available soon after the campaign. An owner who files an intent-to-use application may tack on the period of analogous use for purposes of priority and incontest ability. analytical jurisprudence. See JURISPRUDENCE. analytical memorandum. See research memorandum under MEMORANDUM. anarchist, n. (l7c) One who advocates the overthrow of organized government by force or who believes in the absence of government as a political ideal. -anar chism (the philosophy), n. anarchy, n. (l6c) 1. Absence of government; lawlessness. 2. A sociopolitical theory holding that the only legit imate form of government is one under which indi viduals govern themselves voluntarily, free from any collective power structure enforcing compliance with social order. -anarchic, adj. criminal anarchy. (1831) A doctrine advocating the overthrow of organized government by force or violence, by assassinating a head of government, or by some other unlawful act

throw of organized government by force or violence, by assassinating a head of government, or by some other unlawful act . Most states have laws limiting speech that incites criminal anarchy. The laws do not apply to abstract philosophical expres sions or predictions or like expressions protected by the First and Fourteenth Amendments. Criminal anarchy statutes (e.g., 18 USCA 2385) apply only to speech that is calculated to induce forceful and violent activity, such as attempts to incite people to riot, or that otherwise generates some "clear and present danger" that the advocated violent overthrow may be attempted or accomplished. See Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630 (1925). [Cases: Insurrection and Sedition (::::>2.) anathema (;J-nath-;J-m;J), n. An ecclesiastical curse that prohibits a person from receiving communion (as in excommunication) and bars the person from contact with members ofthe church. -anathematize, vb. anatocism (;J-nat-;J-siz-;Jm), n. [fro Greek anatokismos "to lend on interest again"] Rare. 1. Compound interest. See compound interest under INTEREST (3). 2. The practice ofcompounding interest. anatomical gift. See GIFT. ancestor, n. A person from whom an estate has passed; ASCENDANT . This word is the correlative of heir. Cf. HEIR (1). common ancestor. A person to whom the ancestry of two or more persons is traced. ancestral debt. See DEBT. ancestral estate. See ESTATE (1). ancestry. (14c) A line ofdescent; lineage. anchorage. Maritime law. 1. An area where ships anchor. 2. A duty paid by shipowners for the use of a port; a toll for anchoring. [Cases: Shipping (::::>7.) ancient, adj. Evidence. (l4c) Having existed for a long time without interruption, usu. at least 20 to 30 years <ancient deed> <ancient map>. Ancient items are usu. presumed to be authentic even if proof of 101 authenticity cannot be made. Fed. R. Evid. 901(b)(8). [Cases: Evidence ancient, n. See ANCIENTS. ancient demesne. See DEMESNE. ancient document. See DOCUMENT. ancient fact. See FACT. ancient house. See HOUSE. ancient law. The law ofantiquity, considered esp. either from an anthropological standpoint or from the stand point oftracing precursors to modern law. "Ancient law uniformly refuses to dispense with a single gesture, however grotesque; with a single syllable, however its meaning may have been forgotten; with a single witness, however superfluous may be his testimony. The entire solemnities must be scrupulously completed by persons legally entitled to take part in them, or else the conveyance is nUll, and the seller is re-established in the rights of which he had vainly attempted to divest himself." Henry S. Maine, Ancient Law 225-26 (1 7th ed. 1901). ancient-lights doctrine. The common-law principle by which a landowner acquired, after 20 years ofuninter rupted use, an easement preventing a neighbor from building an obstruction that blocks light from passing through the landowner's window . The window (or other opening) is termed an ancient light. This doctrine has rarely been applied in the United States. -Also termed ancient-windows doctrine. [Cases: Easements "[AJ notice 'Ancient lights,' which is often seen affixed to the wall of a building, only denotes a claim by or on behalf of the owner that he has acquired, by prescription or otherwise, a right to a reasonable amount of light, free from interruption, over adjoining land: but it must not be supposed that such a notice is necessary in order to protect a legal right." 2 Stephen's Commentaries on the Laws of Eng/and 347 (Crispin Warmington ed., 21st ed. 1950). "Under the English doctrine of ancient lights, which has been soundly repudiated in this country, if a landowner had received sunlight across adjoining property for a specified period of time, the landowner was entitled to continue to receive unobstructed access to sunlight across the adjoin ing property; the landowner acquired a negative prescrip tive easement and could prevent the adjoining landowner from obstructing access to light." 1 Am. Jur. 2d Adjoining Landowners 90, at 889 (1994). ancient readings. Hist. Lectures on ancient English statutes, formerly having substantial legal authority. ancient rent. Hist. The rent reserved at the time the lease is made, if the estate was not then under lease. ancients. Hist. Certain members ofseniority in the Inns of Court and Chancery . In Gray's Inn, the society consisted ofbenchers, ancients, barristers, and students under the bar, with the ancients being the oldest bar risters. In the Middle Temple, those who passed the readings were termed ancients. 'The Inns ofChancery consisted ofboth ancients and students or clerks. Also termed (in singular) ancient. ancient serjeant. Hist. English law. The eldest of the Crown's serjeants. -The last serjeant to hold this office died in 1866. ancient wall. See WALL. and other good and valuable consideration ancientwaterconrse. See WATERCOURSE. ancient-windows doctrine. See ANCIENT-LIGHTS DOC TRINE. ancient writing. See ancient document under DOCU MENT. ancilla (an-sil-;:I), n. [Latin] Hist. A female auxiliary or assistant. ancillary (an-s;:I-ler-ee), adj. (17c) Supplementary; sub ordinate <ancillary claims>. ancillarity (an-s;:I-Ia[iJ r-;:I-tee), n. ancillary administration. See ADMINISTRATION. ancillary administrator. See ADMINISTRATOR (2). ancillary attachment. See ATTACHMENT (3). ancillary bill. See ancillary suit under SUIT. ancillary claim. See CLAIM (4). ancillary guardianship. See GUARDIANSHIP. ancillary jurisdiction. See JURISDICTION. ancillary legislation. See LEGISLATION. ancillary letters testamentary. See LETTERS TESTAMEN TARY. ancillary proceeding. See ancillary suit under SUIT. ancillary process. See ancillary suit under SUIT. ancillary receiver. See RECEIVER. ancillary receivership. See RECEIVERSHIP. ancillary suit. See SUIT. ancillary to priority. Patents. (Of a legal issue) so logi cally related to the issue of priority ofinvention that it cannot be separated from the issue of priority. The question whether an issue is ancillary to priority was once used to challenge the jurisdiction ofthe U.S. Patent and Trademark Office, but the Board of Patent Appeals and Interferences now has explicit jurisdiction over ancillary issues. [Cases: Patents (;:::>90(1).] ancipitis usus. See conditional contraband under CONTRABAND. Anders brief. See BRIEF. and his heirs. A term ofart formerly required to transfer complete title (a fee simple absolute) to real estate <A conveys Blackacre to B and his heirs> . This phrase originated in the translation of a Law French phrase used in medieval grants (a lui et a ses heritiers pour toujours "to him and his heirs forever"). See FEE SIMPLE. "The development reached its culmination when the words 'and his heirs' in a transfer were thought to give full dura tional ownership to the immediate transferee and no own ership whatever to his heirs. This notion was expressed in the statement that the words 'and his heirs' are words of limitation and not words of purchase. They indicate the durational character of an estate, not its taker." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 93~94 (2d ed. 1984). and other good and valuable consideration. See other consideration under CONSIDERATION. 102 androlepsy androlepsy (an-dra-Iep-see). [fro Greek "seizure ofmen"] Hist. The taking by one nation ofcitizens or subjects of another nation either in reprisal or to enforce some claim (as to surrender or punish a fugitive). -Also termed androlepsia (an-dra-Iep-see-a). anecius (a-nee-shee-as), n. [Law Latin] Hist. The eldest; the firstborn; the senior, as contrasted with puisne ("the younger"). angaria (ang-gair-ee-a). [Greek] 1. ANGARY. 2. Roman law. (ital.) A compulsory service consisting in the trans port ofgoods or persons for the imperial post; a public Pony Express rider. 3. Hist. A service exacted by a lord beyond what is due. PI. angariae. angary (ang-gd-ree). Int'llaw. A country's right, in war or other urgent circumstances, to seize -for tempo rary use -neutral merchant ships in its inland or terri torial waters as well as aircraft within its territory, with full indemnity by the country. -Also termed right of angary; jus angariae; angaria. "In many respects the content and scope of the right of angary remain unclear and there is little evidence of State practice on several controversial questions. In practice, the right has been exercised mainly in wartime. Nevertheless, several writers consider it to be applicable in times of peace and in cases of absolute necessity, such as the evacuation of the population in the event of a national emergency." Rainer Lagoni, "Angary, Right of," in 1 Encvclopedia of Public International Law (1992). angel. Mergers & acquisitions. An investor who infuses enough cash to close a deal or who comes in at the last minute to save a deal that otherwise would not close. angel investor. See INVESTOR. Anglice (ang-gla-see), adv. [French] In English. -This term formerly appeared in pleadings to Signal an English translation or restatement ofa previous Latin word or phrase <panis, Anglice, bread>. Anglo-American common law. See American common law under COMMON LAW (2). Anglo-Saxon law. 1he body of royal decrees and cus tomary laws developed by the Germanic peoples who dominated England from the 5th century to 1066. anhlote, n. Hist. A Single tribute or tax paid according to custom, such as scot and lot. See SCOT AND LOT. aniente (an-ee-cmt or an-ee-ent), adj. [Law French] (Of a law, etc.) having no force or effect; void. -Also spelled anient. -Also termed aniens. animal. Any living creature other than a human being. Also termed creature. animalferae naturae. See wild animal. animal mansuetae naturae. See domestic animal. dangerous animal. An animal that has harmed or has threatened to harm a person or another animal. domestic animal. 1. An animal that is customarily devoted to the service ofhumankind at the time and in the place where it is helped. See DOMITAE NATURAE; MANSUETAE NATURAE. 2. Any animal that is statutorHy so deSignated. -Also termed animal mansuetae naturae. [Cases: Animals (:::;:> 1.5(3).] domesticated animal. 1. A feral animal that has been tamed. 2. An animal that has customarily lived peace ably with people, such as farm animals and pets. See DOMITAE NATURAE. feral animal. A domestic animal that has returned to a wild state. -Feral animals, unlike others of their species, are usu. unsocialized to people. vicious animal.!. An animal that has shown itself to be dangerous to humans. 2. Loosely, one belonging to a breed or species that is known or reputed to be dangerous. - A vicious animal may be domestic, feral, or wild. See VICIOUS PROPENSITY. [Cases: Animals (:::;:>66.2,66.5(2).] wild animal. 1. An animal that, as a matter ofcommon knowledge, are naturally untamable, unpredictable, dangerous, or mischievous. See FERAE NATURAE. 2. Any animal not statutorily designated as a domestic animal. -Also termed wild creature; animal ferae naturae. [Cases: Animals (:::;:> 1.5(2).] "Wild creatures, such as game, are part of the land and pass with it, though it cannot be said that they are within the ownership of any particular person. Wild creatures which have been tamed belong to the person who has tamed them, and animals too young to escape belong to the owner ofthe land on which they are, but in each case the owner has only a qualified property in them, for the moment they gain or regain their natural liberty the owner ship is lost." G.c. Cheshire, Modern Law ofReal Property 118 (3d ed. 1933). Animal and Plant Health Inspection Service. An agency in the U.S. Department ofAgriculture responsible for controlling or eliminating pests and plant diseases by regulating the shipment ofagricultural products within the United States -Established in 1977, some of its functions were transferred to the U.S. Department of Homeland Security in 2003. Abbr. APHIS. [Cases: Agriculture (:::;:>9.] animal ferae naturae. See wild animal under ANIMAL. animal law, n. lhe field oflaw dealing with vertebrates other than humans. -The field cuts across many tra ditional doctr

, n. lhe field oflaw dealing with vertebrates other than humans. -The field cuts across many tra ditional doctrinal areas (e.g., contracts, torts, admin istrative law) as well as jurisprudence. Topics include wildlife-management law, laws concerning treatment oflaboratory animals, and laws relating to companion animals. [Cases: Animals (:::;:>3.5(1).] animal mansuetae naturae. See domesticated animal under ANIMAL. animo (an-d-moh). [Latin] See ANIMUS (2). animo et corpore (an-tl-moh et kor-ptl-ree), adv. [Latin] By the mind and by the body; by the intention and by the physical act of control <possession is acquired animo et corpore>. animo etfacto (an-tl-moh et fak-toh). [Latin] Hist. By act and intention. "Thus, for example, in acquiring a domicile, mere residence is not suffiCient, if there be not the intention to acquire 103 it, as domicile can only be acquired animo et facto." John Trayner, Trayner's Latin Maxims 21 (4th ed. 1894). animo felonico (an-<J-moh f<J-lon-<J-koh), adv. [Latin] With felonious intent; with the intention to commit a felony. animus (an+m<Js). [Latin] (1816) 1. III will; animosity. class-based animus. A prejudicial disposition toward a discernible, usu. constitutionally protected, group of persons. A class-based animus is an essential element ofa civil-rights conspiracy case. [Cases: Civil Rights C:=> 1033(1), 1137; Conspiracy C:=>7.5(1).] 2. Intention. All the following Latin "animus" phrases have analogous adverbial forms beginning with "animo" (the definition merely needing "with" at the outset). For example, animo furandi means "with the intention to steal," animo testandi means "with testa mentary intention," etc. animus adimendi (an-<J-m<Js ad-i-men-dr). [Latin] The intention to adeem. animus belligerendi (an-<J-m<Js b<J-lij-<J-ren-dr). [Latin] The intention to wage war. animus cancellandi (an-<J-m<Js kan-s<J-Ian-dr). [Latin] The intention to cancel. This phrase usu. refers to a will. animus capiendi (an-<J-m<Js kap-ee-en-dr). [Latin] The intention to take or capture. animus contrahentium (an-<J-m<Js kon-tr<J-hen shee-<Jm). [Latin] The intention of the contracting parties. animus dedicandi (an-<J-m<Js ded-<J-kan-dr). [Latin] The intention to donate or dedicate. animus defamandi (an-<J-m<Js def-<J-man-dr). [Latin] The intention to defame. [Cases: Libel and Slander C:=>2.] animus derelinquendi (an-<J-m<Js dee-rel-ing-kwen dr). [Latin] The intention to abandon. animus deserendi (an-<J-m<Js des-<"l-ren-dr). [Latin] The intention to desert (usu. a spouse, child, etc.). animus differendi (an-<J-m<Js dif-<J-ren-dr). [Latin] The intention to obtain a delay . The phrase animo differ endi ("with the intention to obtain a delay") appeared in reference to a presumption that certain actions ofa defendant were designed to obtain a delay. animus domini (an-<J-m<Js dom-<"l-nr). [Latin] Roman law. The intent to exercise dominion over a thing; the intent to own something. Cf. animus possidendi. "All possession has two elements, a physical and a mental, which the Romans distinguish as corpus and animus. The first is the physical relation of the possessor to the object. The second is his sense of that relation. If he is minded to deal with the thing as his own (animus domini -animus sibi habendi), no matter whether rightfully or wrongfully, he possesses in the fullest sense." R.W. Lee, The Elements of Roman Law 179-80 (4th ed. 1956). animus donandi (an-<J-moh doh-nan-dr). [Latin] The intention of donating; the intention to give. [Cases: Gifts C:=> 15.] animus animus et factum (an-<J-m<Js et fak-t<Jm). [Latin "mind and deed"] The intention and the deed. This phrase can refer to a person's intent to reside in a given country permanently or for an indefinite period. animus felonicus (an-<J-m<Js fe-loh-ni-k<"ls). [Latin] The intention to commit a felony. [Cases: Criminal Law C:=>20.] animus furandi (an-<J-m<Js fyuu-ran-dr). [Latin] The intention to steal. In Roman law, the focus was on the unauthorized use of property rather than an intent to permanently deprive the owner ofit. [Cases: Larceny C:=> 1, 3.] "[An] intent to deprive the owner of his property per manently, or an intent to deal with another's property unlawfully in such a manner as to create an obviously unreasonable risk of permanent deprivation, [is] all that is required to constitute the animus furandi-or intent to steal." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 332-33 (3d ed. 1982). animus gerendi (an-<J-m<Js j<J-ren-dr). [Latin] The inten tion to act as heir. animus immiscendi et adeundi hereditatem (an-<J m<Js im-i-sen-dr et ad-ee-an-dr h<J-red-i-tay-t<Jm). [Latin] The intention to meddle with and take up a succession. animus indorsandi (an-<J-moh in-dor-san-dr). [Law Latin] Hist. The intention of indorsing. One who indorsed a check animo indorsandi would be liable for the amount ifthe check was dishonored. animus injuriandi (an-<J-m<Js in-j[y]oor-ee-an-dr). [Latin] The intention to injure, esp. to insult. animus lucrandi (an-<J-m<Js loo-kran-dr). [Latin] The intention to make a gain or profit. animus malus (an-<J-m<Js mal-<Js). [Latin] Evil intent. animus manendi (an-<J-m<Js m<J-nen-dr). [Latin "will to remain"] The intention to remain; the intention to establish a permanent residence. -Also termed animus remandendi. [Cases: Domicile C:=>4(2).] animus morandi (an-<J-m<Js m<J-ran-dr). [Latin "will to tarry"] The intention to remain. Although animus morandi is broadly synonymous with animus manendi, morandi suggests less permanency. animus nocendi (an-<J-m<Js noh-sen-dr). [Latin] The intention to harm. animus obligandi (an-<J-m<Js ahb-li-gan-dr). [Latin] The intention to enter into an obligation. animus occidendi (an-<J-m<Js ahk-si-den-dr). [Latin] The intention to kill. animus possidendi (an-<J-m<Js pah-s<J-den-dr). [Latin] Roman law. The intent to possess a thing. Cf. animus domini. animus quo (an-<J-m<Js kwoh). [Latin] The intent with which; motive. animus recipiendi (an-<J-m<Js ri-sip-ee-en-dr). [Latin] The intention to receive. 104 Annapolis animus recuperandi (an-a-mas ri-k[y]oo-pa-ran-dl). [Latin] The intention to recover. animus remanendi (an-a-mas rem-a-nen-dr). [Latin] See animus manendi. animus republicandi (an-a-mas ree-pub-Ia-kan-dI). [Latin] The intention to republish. animus restituendi (an-a-mas ra-sti-tyoo-en-dI). [Latin] The intention to restore. animus revertendi (an-a-mas ree-var-ten-dI). [Latin] The intention to return (to a place). _ In Roman law, this intent was a factor to deciding whether animals, such as doves and bees, remained in a person's own ership. animus revocandi (an-a-mas rev-oh-kan-dI). [Latin] The intention to revoke (a will) <her destruction of the will indicated that she had animus revocandi>. [Cases: Wills ()::::> 170.] animus signandi (an-a-mas sig-nan-dI). [Latin] The intention to sign. [Cases: Wills ()::::>n.] animus testandi (an-a-mas tes-tan-dI). [Latin] Testa mentary intention. animus ulciscendi (an-a-mds al-si-sen-dI). [Latin] The intention to take revenge. Annapolis. See UNITED STATES NAVAL ACADEMY. annates (an-ayts or an-its), n. [fro Law Latin annata] See FIRST FRUITS (2). annats (an-ats). See FIRST FRUITS (2). annex, n. (l6c) Something that is attached, such as a document to a report or an addition to a bUilding. annexation, n. (17c) 1. The act of attaching; the state of being attached. 2. Property. The point at which a fixture becomes a part of the realty to which it is attached. [Cases: Fixtures ()::::>6.] 3. A formal act by which a nation, state, or municipality incorporates land within its dominion. _ In international law, the usual formali ties ofannouncing annexation involve having specially commissioned officers hoist the national flag and read a proclamation. [Cases: Municipal Corporations 29.] 4. The annexed land itself. Cf. ACCESSION (5). annex, vb. cherry-stem annexation. 1. Annexed land that resem bles (on a map) a cherry because the annexed ter ritory the cherry -is not contiguous to the acquiring municipality, and the narrow corridor of annexed land leading to the targeted area resembles a stem. [Cases: Municipal Corporations ()::::>29(4).] 2. The process of annexing land with this configu ration. anniversary date. Insurance. The annually recurring date ofthe initial issuance ofa policy. Cf. POLICY YEAR. ann, jour, et wast (an, zhoor, ay wayst). [Law French] See YEAR, DAY, AND WASTE. anno ante Christum (an-oh an-tee kris-tam), adv. [Latin] In the year before Christ. Abbr. A.A.C. anna ante Christum natum (an-oh an-tee kris-tam nay-tam), adv. [Latin] In the year before the birth of Christ. Abbr. A.A.e.N. Anno Domini (an-oh dom-a-m or -nee). [Latin "in the year of the Lord"] Since the supposed year in which Jesus Christ was born; ofthe current era <A.D. 1776>. Abbr. A.D. -Also termed in the year ofOur Lord. Cf C.E. annonae civiles (a-noh-nee sa-vI-leez), n. [Latin] Rist. Yearly rents issuing out ofparticular lands and payable to certain monasteries. an no orbis conditi (an-oh or-bis kon-di-tI), n. [Latin] The year ofthe creation of the world. -Abbr. AOe. Anno Regni (an-oh reg-m). [Latin) In the year of the reign. -A.R.V.R. 22, for example, is an abbreviated reference to Anno Regni Victoriae Reginae vicesimo secundo ("in the twenty-second year of the reign of Queen Victoria"). -Abbr. A.R. annotatio (an-oh-tay-shee-oh). [Latin] RESCRIPT (3). annotation (an-a-tay-shan), n. (lSc) 1. A brief summary of the facts and decision in a case, esp. one involving statutory interpretation. 2. A note that explains or criti cizes a source oflaw, usu. a case. -Annotations appear, for example, in the United States Code Annotated (USCA). 3. A volume containing such explanatory or critical notes. 4. RESCRIPT (3). Cf. NOTE (2). annotate (an-a-tayt), vb. annotative (an-a-tay-tiv), adj. annotator (an-a-tay-tar), n. "One of the most important classes of Search Books is those included in the category of Annotations. They are important and valuable. in that they often purport to give. in very condensed form. some indication of the law, deduced from the cases or statutes. as well as to point out where similar cases can be found: William M. Lile et aI., Brief Making and the Use of Law Books 84 (3d ed. 1914). announce,

Brief Making and the Use of Law Books 84 (3d ed. 1914). announce, vb. To make publicly known; to proclaim formally <the judge announced her decision in open court>. annoyance. See NUISANCE (1). annual account. See intermediate account under ACCOUNT. annual crops. See CROPS. annual depreciation. See DEPRECIATION. annual exclusion. See EXCLUSION (1). annual gift-tax exclusion. See annual exclusion under EXCI.USION. annual meeting. See MEETING. annual message. See MESSAGE. annual percentage rate. See INTEREST RATE. annual permit. A permit, required by some states, that must be paid each year by a corporation that does business in the state. -In some states, the permit fee is set according to the corporation's capitalization. annual report. A yearly corporate financial report for shareholders and other interested parties. -The Securities Exchange Act of 1934 requires registered 105 corporations to file an annual report on the SEC's Form lO-K. An annual report includes a balance sheet, income statement, statement ofchanges in financial position, reconciliation of changes in owners' equity accounts, a summary of significant accounting prin ciples, other explanatory notes, the auditor's report, and comments from management about prospects for the coming year. Also termed annual statement; financial report. annual value. See VALUE (2). annua pensione. See DE ANNUA PENSIONE. annuitant (<l-n[Y]OO-<l-t<lnt), n. (18c) A beneficiary ofan annuity. [Cases: Annuities C=>27.] annuity (<l-n[y]oo-<l-tee). (15c) 1. An obligation to pay a stated sum, usu. monthly or annually, to a stated recipient. These payments terminate upon the death of the designated beneficiary. [Cases: Annuities 15.]2. A fixed sum ofmoney payable periodically. 3. A right, often acquired under a life-insurance contract, to receive fixed payments periodically for a specified duration. Cf. PENSION. 4. Patents. See MAINTENANCE FEE. 5. A savings account with an insurance company or investment company, usu. established for retirement income. Payments into the account accumulate tax free, and the account is taxed only when the annuitant withdraws money in retirement. annuity certain. An annuity payable over a specified period, regardless ofwhether the annuitant dies before the period ends. Also termed term annuity. annuity due. An annuity that makes payments at the beginning of each pay period. Cf. ordinary annuity. cash-refund annuity. An annuity providing for a lump-sum payment after the annuitant's death ofthe difference between the total received and the price paid. constituted annuity. Louisiana law. An annuity that has a maximum duration of lO years and, under some circumstances, can be redeemed before the term's expiration. La. Civ. Code art. 2796. contingent annuity. 1. An annuity that begins making payments when some future event occurs, such as the death of a person other than the annuitant. 2. An annuity that makes an uncertain number of payments, depending on the outcome ofa future event. continuing annuity. See survivorship annuity. deferred annuity. An annuity that begins making payments on a specified date if the annuitant is alive at that time. Also termed deferred-payment annuity. Cf. immediate annuity. fixed annuity. An annuity that guarantees fixed payments, either for life or for a specified period. group annuity. An annuity payable to members of a group, esp. employees, who are covered by a single annuity contract, such as a group pension plan. annuity immediate annuity. An annuity paid for with a single premium and that begins to pay benefits within the first payment interval. Cf. deferred annuity. joint annuity. An annuity payable to two annuitants until one of them dies, at which time the annuity terminates for the survivor (unless the annuity also provides for survivorship rights). See survivorship annuity. life annuity. An annuity payable only during the annuitant's lifetime, even if the annuitant dies pre maturely. life-income period-certain annuity. An annuity that pays a specified number of payments even if the annuitant dies before the minimum amount has been paid. nonrefund annuity. An annuity with guaranteed payments during the annuitant's life, but with no refund to anyone at death. Also termed straight life annuity; pure annuity. ordinary annuity. An annuity that makes payments at the end ofeach pay period. Cf. annuity due. private annuity. An annuity from a private source rather than from a public or life-insurance company. pure annuity. See nonrefund annuity. refund annuity. An annuity that, upon the annuitant's death, pays to the annuitant's estate the difference between the purchase price and the total payments received during the annuitant's lifetime. retirement annuity. An annuity that begins making payments only after the annuitant's retirement. Ifthe annuitant dies before retirement, an agreed amount will usu. be refunded to the annuitant's estate. single-premium deferred annuity. An annuity for which a party pays a lump-sum premium in exchange for receiving a specified sum at a future date . The income earned on the investment is tax-free until it is withdrawn. Abbr. SPDA. [Cases: Annuities C=> 15.] straight annuity. An annuity that makes payments in fixed amounts at periodic intervals. Cf. variable annuity. straight life annuity. See nonrefund annuity. survivorship annuity. An annuity providing for con tinued payments to a survivor, usu. a spouse, after the original annuitant dies. Also termed continu ing annuity. tax-deferred annuity. See 403(b) plan under EMPLOYEE BENEFIT PLAN. tax-sheltered annuity. See 403(b) plan under EMPLOYEE BENEFIT PLAN. term annuity. See annuity certain. variable annuity. An annuity that makes payments in varying amounts depending on the success of the 106 annuity bond underlying investment strategy. See variable annuity contract under CONTRACT. Cf. straight annuity. annuity bond. See BOND (3). annuity certain. See ANNUITY. annuity depredation method. See DEPRECIATION METHOD. annuity insurance. See INSURANCE. annuity policy. An insurance policy providing for monthly or periodic payments to the insured to begin at a fixed date and continue through the insured's life. annuity t~nst. See TRUST. annulment (a-nal-mant), n. (15c) 1. The act ofnullifying or making void; VOIDANCE. 2. A judicial or ecclesias tical declaration that a marriage is void. -An annul ment establishes that the marital status never existed. So annulment and dissolution ofmarriage (or divorce) are fundamentally different: an annulment renders a marriage void from the beginning, while dissolution of marriage terminates the marriage as of the date of the judgment of dissolution. Although a marriage terminated by annulment is considered never to have occurred, under modern ecclesiastical law and in most states today a child born during the marriage is not con sidered illegitimate after the annulment. C DIVORCE. [Cases: Children Out-of-Wedlock C=> 1; Marriage 56.] 3. A rescission. See RESCIND (3). -annul (a-nal), vb. annulment of adoption. See ABROGATION OF ADOPTION. annulment ofjudgment. A retroactive obliteration of a judicial decision, haVing the effect of restoring the parties to their pretrial positions. -Types ofannulment include reversal and vacation. See REVERSE; VACATE (1). annum luctus (an-am lak-tas), n. [Latin "year of mourning"] Roman law. The year following the death of a married man during which his widow could not remarry, because ofthe confusion that would ensue in determining the parentage ofa child born a few months after a second marriage within that year. -Also some times termed year in mourning. annus (an-<ls). [Latin] A year. annus continuus (an-as kan-tin-yoo-ds). [Latin "a con tinuous year"] Roman law. A straight 365-day period, without interruption. Cf. ANNUS UTILIS. ann us deliberandi (an-as dil-lib-a-ran-dI). [Latin "the year for deliberating"] Scots law. The year during which an heir could determine whether to enter an inheritance and represent an ancestor. The period was later short ened to six months. See DAMNOSA AUT LUCROSA. ''The entry of an heir infers serious responsibilities, and therefore the year is allowed for consideration. The annus deliberandi commences on the death of the ancestor, unless in the case of a posthumous heir, in which case the year runs from the heir's birth." William Bell, Bell's Diction aryand Digest of the Law of Scotland 47 (George Watson ed., 7th ed. 1890). annus, dies, et vastum (an-as, dI-eez, et vas-tam). [Law Latin] See YEAR, DAY, AND WASTE. annus et dies (an-as et dI-eez). [Law Latin] A year and a day. See YEAR-AND-A-DAY RULE. annus utitis (an-dS yoo-td-lis). [Latin "a year that can be used"] Roman law. A 365-day period during which legal rights could be exercised, not including days when the courts were closed or when a person could not otherwise pursue those rights; a year made up ofthe available days for conducting legal business. Cf. ANNUS CONTINUUS. annuus reditus (an-as red-a-tds). [Law Latin] A yearly rent. anomalous indorsement. See irregular indorsement under INDORSEMENT. anomalous jurisdiction. See JURISDICTION. anomalous-jurisdiction rule (a-nom-d-Ias). The prin ciple that a court ofappeals has provisional jurisdiction to review the denial ofa motion to intervene in a case, and if the court of appeals finds that the denial was correct, then its jurisdiction disappears -and it must dismiss the appeal for want ofjurisdiction because an order denying a motion to intervene is not a final, appealable order. 'Ihis rule has been criticized by courts and commentators. Many appellate courts, upon finding that the trial court properly denied a motion to intervene, will affirm the denial instead of dismiss ing the appeal for want ofjurisdiction. Sometimes shortened to anomalous rule. [Cases: Federal Courts 587.] anomalous plea. See PLEA (2). anomalous pleading. See PLEADING (1). anomalous rule. See ANOMALOUS-JURISDICTION RULE. a non domino (ay non dom-d-noh). [Law Latin] Hist. From one who is not the proprietor. a non habente potestatem (ay non ha-ben-tee poh-tes tay-tdm). [Latin] Scots law. From one not having power. -This phrase appeared most commonly in a convey ance in reference to a seller who was not the owner. "If A. disponed ground, which he held on a personal title, to B., he could not grant warrant for the infeftment of B. himself being uninfeft; but he could assign to B. the unexe cuted precept of sasine in his (A.'s) own favour, and on it B. could complete his feudal title. If, instead of thus assigning a valid precept, A. himself granted a precept for the infeft ment of B., such a precept was a non habente potestatem, and ineffectual. This was a defect, however, which was remedied by prescription." John Trayner, Trayner's Latin Maxims 5 (4th ed. 1894). anonymous, adj. (17c) Not named or identified <the police arrested the defendant after a tip from an anony mous informant>. anonymity (an-a-nim-a-tee), n. anouymous case. A reported case in which the word "anonymous" is substituted for at least one party's name to conceal the party's identity. See, e.g., Anonymous v. Anonymous, 735 N'y.S.2d 26 (App. Div. 2001). anonymous work. See WORK (2). 107 anoysance (a-noy-z;mts), n. [Law French] Hist. An annoyance or nuisance. See NUISANCE. ANSI. abbr. AMERICAN NATIONAL STANDARDS INSTI TUTE. answer, n. (bef. 12c) 1. A defendant's first pleading that addresses the merits ofthe case, usu. by denying the plaintiffs allegations. An answer usu. sets forth the defendant's defenses and counterclaims. [Cases: Federal Civil Procedure (;:::;, 731-786; Pleading 76-100, 146.] false answer. (18c) A sham answer in a pleading. See sham pleading under PLEADING (

false answer. (18c) A sham answer in a pleading. See sham pleading under PLEADING (1). [Cases: Federal Civil Procedure (;:::;, 1139; Pleading (;:::;,359.] 2. A person's, esp. a witness's, response to a question posed. evasive answer. (17c) A response that neither directly admits nor denies a question . In discovery, this is considered a failure to answer. Fed. R. Civ. P. 37(a) (3). unresponsive answer. (1891) Evidence. A response from a witness (usu. at a deposition or hearing) that is irrel evant to the question asked. -Also termed nonre sponsive answer. [Cases: Witnesses (;:::;,248.] 3. Patents. A patent applicant's response to an office action. [Cases: Patents (;:::;,104.] answer, vb. (12c) 1. To respond to a question, a pleading, or a discovery request <the company failed to answer the interrogatories within 30 days>. [Cases: Pretrial Procedure (;:::>301; Pleading (;:::;,76-100; Federal Civil Procedure 1531.1 2. To assume the liability of another <a guarantor answers for another person's debt>. 3. To pay (a debt or other liability) <she promised to answer damages out ofher own estate>. answer date. See answer day under DAY. answer day. See DAY. answer in subsidium. Hist. In equity pleading, an answer supporting a plea. antapocha (ant-ap-a-b). [Latin "counter-receipt"] Roman & civil law. A counterpart to a receipt (i.e., an apocha), Signed by the debtor and delivered to the creditor as proofofpayment. Cf. APOCHA. ante (an-tee), prep. [Latin] Before. Cf. POST. antea (an-tee-a), adv. [LatinJ Formerly; heretofore. antecedent (an-t,,-see-d~nt), adj. (14c) Earlier; preexist ing; previous. antecedent (preceding thing), n. antecedence (quality or fact ofgoing before), n. antecedent basis. Patents. A general word or phrase in a patent claim or description to which a later specific word or phrase must refer. Claims will be rejected as impermissibly vague or indefinite ifthe latter word is not clearly connected to its antecedent, because the wording becomes ambiguous. In general, a term is first introduced with an indefinite article and is later referred to with the definite article (or said). [Cases: Patents (;::.::> 101(6).J antenatus antecedent claim. A preexisting claim. Under the UCC, a holder takes an instrument for value if it is taken for an antecedent claim. UCC 3-303. antecedent debt. See DEBT. antecessor (an-ta-ses-~r or an-ta-ses-ar), n. [Latin]!. Roman law. A professor oflaw. 2. Hist. An ancestor. 3. Hist. A predecessor to an office. antedate (an-ti-dayt), vb. (16c) 1. To affix with a date earlier than the true date; BACKDATE (1) <antedate a check>. 2. To precede in time <the doctrine antedates the Smith case by many years>. Also termed predate. Cf. POSTDATE. -antedate, n. antedating ofa prior-art reference. Patents. The removal ofa publication, a U.S. patent, or a foreign patent cited as prior art against the application by filing an affidavit or declaration establishing the applicant's completion ofthe invention in this country, or in another NAFTA or WTO member country, before the effective date ofthe cited reference . The term applies only to U.S. patent applications. An issued patent may also antedate a prior-art reference ifthe conception predates the prior art and the inventor used due diligence in reducing the concept to practice. -Also termed antedating a ref erence; swearing behind a prior art reference; carrying back the date ofinvention. [Cases: Patents (;:::>62(1).] ante exhibitionem billae (an-tee ek-si-bish-ee-oh-nam bil-ee). Before the exhibition of the bill; i.e., before a suit has begun. ante factum. A thing done before; a previous act or fact. Also spelled ante-factum. ante litem. [Latin] Before litigation. ante litem motam (an-tee iI-tern moh-tdm). [Law Latin "before the lawsuit was started"] Hist. Before an action has been raised; before a legal dispute arose i.e., at a time when the declarant had no motive to lie . This phrase was generally used in reference to the eviden tiary requirement that the acts upon which an action is based occur before the action is brought. In Scotland, the phrase also referred to the obligation ofan estate intromitter to become confirmed as executor of the estate before a creditor could sue the estate. Other wise, the intromitter could be held personally liable for the decedent's debts. -Sometimes shortened to ante litem. ante meridiem (an-tee ma-rid-ee-dm). [Latin] Before noon. -Abbr. a.m.; A.M. ante mortem. [Latin] Before death. ante mortem interest (an-tee mor-t~m). [Latin] An interest existing before (but not after) a transferor's death. ante mortem statement. See dying declaration under DECLARATION (6). antenatus (an-tee-nay-tas). [Law Latin] A person born before a certain political event that affected the person's political rights; esp., a person born before the signing of the Declaration ofIndependence. Cf. POSTNATUS. Pi. antenati. 108 antenuptial antenuptial (an-ti-nap-shal), adj. See PRENUPTIAL. antenuptial agreement. See PRENUPTIAL AGREEMENT. antenuptial contract. See PRENUPTIAL AGREEMENT. antenuptial gift. See prenuptial gift under GIFT. antenuptial will. See prenuptial will under WILL. ante omnia (an-tee ahm-nee-a). [Latin] Hist. 1. Before anything else is done; first of all. -Objections that could bar the litigation were usu. discussed ante omnia. 2. Above all other things. ante redditas rationes (an-tee red-a-tas ray-shee-oh nis or rash-). [Law Latin] Scots law. Before accounts are rendered. - A tutor could not file an action against a minor to recover payments unless the tutor first provided an accounting ofthe ward's estate. anthropometry (an-thr;)-pom-;)-tree). A system of measuring the human body, esp. the size relation ships among the different parts. -Before the advent of fingerprinting, minute measurements of the human body taken and compared to other persons' mea surements were used to identifv criminals and deceased persons. Cf. BERTILLON SYSTEM. -anthro pometric, adj. Anti-Assignment Act. A federal statute prohibiting the assignment or transfer of claims against the United States. 31 USCA 3727. [Cases: United States C=> llll anti-assignment-in-gross rule. Trademarks. The doctrine that an assignment of a mark without the goodwill symbolized by the mark is invalid. -Although trademark rights are not destroyed when a mark is assigned in gross, the failure ofthe assignor to continue to use the mark, coupled with an ineffective transfer, may result in abandonment. -See assignment in gross under ASSIGNMENT. [Cases: Trademarks C=> 1201.] antibootleg, adj. Copyright. Ofor pertaining to an effort to combat or discourage illegal recording, distribution, and sale of unauthorized reproductions of live and broadcast performances. -The federal antibootleg statute, 18 USCA 2319A, and the antibootleg statutes ofseveral states criminalize bootlegging activities. See ANTIBOOTLEG STATUTE. [Cases: Copyrights and Intel lectual PropertyC=>70.j antibootlegging, n. antibootleg statute. Copyright. A law, esp. a state law, that prohibits making, distributing, or selling an unau thorized recording of a live performance. [Cases: Copy rights and Intellectual Property C=> 108.] antichresis (an-ti-kree-sis). [Latin "in place ofinterest"] Roman & civil law. A mortgage in which the mortgagee retains possession of the mortgaged property and takes the fruits (such as rents) of the property in lieu of interest on the debt. La. Civ. Code art. 3176. [Cases: Mortgages "Under the Civil Code of Louisiana, taken from the Code Napoleon, there are two kinds of pledges: the pawn, when a movable is given as security, and the antichresis, when the security given consists in immovables or real estate. Under the latter the creditor acquires the right to take the rents and profits of the land, and to credit, annually, the same to the interest, and the surplus to the principal of the debt, and is bound to keep the estate in repair, and to pay the taxes. Upon default upon the part of the debtor, the creditor may prosecute the debtor, and obtain a decree for selling the land pledged." 3 James Kent, Commentaries on American Law*403-04 (George Comstock ed., 11th ed. 1866). antichurning rule. Tax. A statutory or regulatory provi sion that denies certain tax advantages, esp. accelerated depreciation and amortization schedules, to taxpayers who acquire property in a transaction that does not result in a significant change in the property's owner ship or use. See CHURNING (2). anticipated, adj. Patents. (Of a patent claim) having all the same elements ofa prior-art reference. -Ifa claim is anticipated by a previous invention or publication, that claim is not allowable; ifa patent has already been issued it will be declared invalid. -Also termed fully met. [Cases: Patents anticipated compromis. See general compromis under COMPROMIS. anticipation. 1. The distribution or receipt of trust income before it is due. 2. Patents. The prior inven tion or disclosure ofthe claimed invention by another, or the inventor's own disclosure ofthe claimed inven tion by publication, sale, or offer to sell if that disclo sure predates the date of the patent-application filing by more than one year. -By disproving the claim's novelty, anticipation bars the allowance ofa claim and provides a defense to an action for infringement based on that claim. See NOVELTY; prior art under ART. [Cases: Patents C=>50.1.] anticipate, vb. "Anticipation implies spoiling something for someone, by getting in ahead; obviously this can only be done by a device (or description of a device), and only to a patent." Roger Sherman Hoar, Patent Taaics and the Law 51 (3d ed. 1950), anticipatory breach. See BREACH OF CONTRACT. anticipatory filing. The bringing of a lawsuit or regula tory action against another with the expectation that the other party is preparing an action of its own. -If properly brought, an anticipatory filing may determine procedural matters such as jurisdiction and venue. See FIRST-TO-FILE RULE; RACE TO THE COURTHOUSE. [Cases: Federal Courts C=> 1145.] anticipatory nuisance. See NUISANCE. anticipatory offense. See inchoate offense under OFFENSE (1). anticipatory replication. See REPLICATION. anticipatory repudiation. See REPUDIATION. anticipatory search warrant. See SEARCH WARRANT. anticircumvention device. Copyright. An apparatus deSigned to prevent bypassing, avoiding, removing, deactivating, or impairing a technological measure that controls access to a work protected by copyright; an apparatus in a media player or receiver, such as a DVD or a TV satellite dish, deSigned to prevent unauthor ized use or duplication of copyrighted material. [Cases: Copyrights and Intellectual Property C=>67.3.] 109 anticompetitive, adj. Having a tendency to reduce or eliminate competition . This term describes the type ofconduct or circumstances generally targeted by anti trust laws. Cf. PROCOMPETITIVE. anticompetitive conduct. Antitrust. An act that harms or seeks to harm the market or the process of com petition among businesses, and that has no legitimate business purpose. anticontest clause. See NO-CONTEST CLAUSE. Anticounterfeiting Consumer Protection Act. Trade marks & Copyright. A federal law to discourage coun terfeiting oftrademarks and copyrighted merchandise such as computer programs, phonorecords, and motion pictures. The law imposes criminal liability for traf ficking in counterfeit goods and services (18 USCA 2318), provides for the seizure of counterfeit goods (15 USCA 1116 (d)(9), and provides enhanced statu tory civil penalties (IS USCA 1117(c. -Abbr. ACPA. [Cases: Copyrights and Intellectual Property (;::>70; Trademarks (;::> 1432.] Anticybersquatting Consumer Protection Act. Trade marks. A 1999 federal law authorizing a trademark owner to obtain a federal-court order transferring ownership ofa domain name from a cybersquatter to the trademark owner. A mark's owner must show that (1) the mark and the domain name are identical or conf

the trademark owner. A mark's owner must show that (1) the mark and the domain name are identical or confusingly similar; (2) the mark was distinctive when the domain name was first registered; (3) the trade mark's owner used the mark commercially before the domain name was registered; and (4) the domain reg istrant acted in bad faith and intended to profit from the trademark's use. Registering a domain name with the intent to sell it to the trademark owner is presump tively an act ofbad faith. But ifa defendant can prove a legitimate reason for the domain-name registration, the defendant may be allowed to keep the name. -Abbr. ACPA. Also termed Trademark Cyberpiracy Preven tion Act. [Cases: Trademarks (;::> 1490-1503.] antidefidency legislation. See LEGISLATION. antideficiency statute. See antideficiency legislation under LEGISLATION. antidestructibility statute. See DESTRUCTIBILITY OF CONTINGENT REMAINDERS. antidestruction clause. A provision in a security pro tecting a shareholder's conversion rights, in the event of a merger, by granting the shareholder a right to convert the securities into the securities that will replace the company's stock when the merger is complete. See con vertible security under SECURITY. antidilution act. Trademarks. A statute prohibiting actions that are likely to lessen, diminish, or erode a famous mark's capacity to identify and distinguish goods and services, without regard to whether the action creates a likelihood ofconfusion, mistake, or deception. The Federal Trademark Dilution Act provides relief against another's commercial use ofa mark or tradename that dilutes the distinctive quality of a famous mark. More than half the states also have Anti-Injunction Act antidilution statutes, which are based on the Inter national Trademark Association's 1964 Model State Trademark Bill. -Also termed antidilution statute. [Cases: Trademarks (;::> 1450-1473.] antidilution provision. A convertible-security provision that safeguards the conversion privilege from share splits, share dividends, or other transactions that might affect the conversion ratio. See CONVERSION RATIO; DILUTION (2). [Cases: Corporations 116.] antidissection rule. Trademarks. A rule. applied in com paring potentially conflicting marks, that requires that the marks be compared as a whole or as they are viewed by consumers in the marketplace, not broken down into their component parts. The antidissection rule does not preclude an analysis ofthe dominant and sub ordinate features ofa mark to determine which features of the mark make the most significant impression on consumers, but the mark must still be considered in its entirety. See TOUT ENSEMBLE. [Cases: Trademarks (;::>1097.] antidumping duty. See antidumping tariff under TARIFF (3). antidumping law. A statute designed to protect domestic companies by preventing the sale of foreign goods at less than fair value, as defined in the statute (for example, at a price below that ofthe domestic market). See DUMPING. [Cases: Customs Duties antidumping tariff. See TARIFF (2). anti-evolution statute. Hist. A law that forbids the teaching ofthe theory of evolution in schools. Such statutes were held unconstitutional as violative ofthe Establishment Clause in Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266 (1968). -Also termed evolution statute. See CREATIONISM. [Cases: Constitutional Law (;::> 1354(2); Schools (;::> l64.] antifraud rule. See RULE lOB-5. antigraph (an-ti-graf). Archaic. A copy or counterpart ofan instrument. antigraphus (an-tig-ra-fas), n. [Law Latin] Hist. An officer who maintains tax revenues; a comptroller. antiharassment order. See ORDER (2). antihazing statute. A (usu. criminal) law that prohibits an organization or members of an organization from requiring a prospective member, as a condition of membership, to do or submit to any act that presents a substantial risk of physical or mental harm. In 1874 Congress passed the first antihazing statute, directed at stopping haZing by midshipmen at the United States Naval Academy. Most states have passed their own antihazing statutes. -Also termed hazing statute. anti-heartbalm statute. See HEARTBALM STATUTE. Anti-Injunction Act. A federal statute providing that a federal court may not enjoin state-court proceed ings unless an injunction is (1) expressly authorized by Congress, (2) necessary for the federal court's in rem jurisdiction, or (3) necessary to prevent relitigation of a judgment rendered by the federal court. 28 USCA 110 anti-john law 2283. See NORRIS-LA GUARDIA ACT. [Cases: Courts C;:::>S08.j anti-john law. A criminal-law statute punishing prosti tutes' customers. [Cases: Prostitution C;:::>16.] antilapse statute. (1937) Wills & estates. A statute that substitutes certain heirs ofsome types oftestamentary beneficiaries when the beneficiary has predeceased the testator and permits them to take the gift, which would otherwise fail and thus pass to the residuary beneficiary (if any) or to the intestate heirs . Under the common law and the laws of all states, a testamentary benefi ciary must survive a testator or else the gift is said to lapse. Ahhough most states have enacted antilapse statutes, their terms vary from state to state. -Also termed lapse statute; nonlapse statute. [Cases: Wills C;:::>774-777.] antilynching law. A statute that criminalizes any unjus tified act of violence by two or more people against another, regardless of race . Such laws were originally passed to stop all forms of extralegal violence aimed at black people. -Also termed lynching law. [Cases: Homicide C;:::>S04.] antimanifesto. Int'llaw. A proclamation in which a bel ligerent power asserts that the war is a defensive one for that power. antimarital-facts privilege. See marital privilege (2) under PRIVILEGE (3). antinomia (an-ti-noh-mee-,,). [Greek] Roman law. An ambiguity in the law. See ANTINOMY. antinomy (an-tin-,,-mee), n. (16c) A contradiction in law or logic; esp., a conflict ofauthority, as between two decisions <antinomies in the caselaw>. antinomic (an-ti-nom-ik), adj. antipiracy, adj. Copyright & Trademarks. Of or per taining to an effort to combat or discourage illegal reproduction, distribution, or use of copyrighted or trademarked products <an antipiracy group>. [Cases: Copyrights and Intellectual Property C;:::>70; Trade marks C;:::> 1423.] antiqua custuma (an-tl-kwa kils-t[y]oo-m,,). [Law Latin "ancient customs"] Hist. A tax on wool, woolfells, and leather, under St. 3 Edw . The distinction between antiqua custuma and nova custuma arose when the king imposed new taxes on the same articles in the 22nd year ofhis reign. Cf. NOVA CUSTUMA. antiqua et nova (an-tI-kw" et noh-v,,). [Latin] Hist. Old and new (rights). "Antiqua et nova .... The technical terms in our law equivalent to these Latin terms are, heritage and conquest; heritage (antiqua) being that estate to which anyone succeeds as heir; conquest (nova) that which he succeeds to or acquires by purchase, gift, or any singular title. The distinction between heritage and conquest is now abol ished, 37 & 38 Vict. cap. 94, 37:John Trayner, Trayner's Latin Maxims 50 (4th ed. 1894). antiquare (an-ti-kwair-ee), vb. [Latin] Roman law. 1. To reject a proposal for a new law . Ihose who voted against a proposed law wrote on their ballots the letter "A:' for antiquo ("I am for the old law"). 2. To repeal a law. antiqua statuta (an-tI-kw" sta-t[yJoo-t,,). See VETERA STATUTA. antiquum dominicum (an-tI-kw"m da-min-i-bm). [Law Latin] Ancient demesne. See DEMESNE. antiquus et novus extentus (an-tl-kw"s et noh-vas ek-sten-tas). [Law Latin] Scots law. Old and new extent. The phrase appeared in reference to the valuation ofland for tax purposes, with old valuations assessed in the year 1280, and new valuations assessed several times after that date. Cf. QUANTUM NUNC VALENT; QUANTUM VALUERUNT TEMPORE PACIS. antishelving clause. Patents. A provision in a patent licenSing contract, usu. one in which payment is based on royalties, requiring the licensee to put the patented article into commercial use within a specified time and to notify the patentee if the licensee decides to stop selling or manufacturing it. The licensee generally agrees to commercially exploit the patent or else risk lOSing the license or exclUSivity. Antishelving clauses are also used in trademark licenses. Also termed antishelving provision; shelving clause; shelVing provi sion. [Cases: Patents C;:::>21l(1).] antisocial behavior order. English law. A judicial order prohibiting a person from certain types of conduct, potentially including conduct that is otherwise legal, where the conduct is likely to cause harm or distress to a nonoccupant of the individual's household. ABSOs were introduced in Great Britain by the Crime and Disorder Act 1998. Abbr. ABSO or ASBO. antisocial personality disorder. See PSYCHOPATH. antispamming law. A statute enacted to combat or crim inalize the sending of unsolicited commercial e-maiL Many states have such a law. See SPAM. [Cases: Tele communications C;:::> 1343.] antistructuring statute. A federal law that forbids struc turing monetary transactions with the intent to evade federal reporting requirements. [Cases: United States antisubrogation rule (an-tee-s"b-roh-gay-sh"n). Insur ance. The principle that an insurance carrier has no right of subrogation -that is, no right to assert a claim on behalf of the insured or for payments made under the policy against its own insured for the risk covered by the policy. See SUBROGATION. [Cases: Insur ance C;:::>3SlO.] antisuit, adj. Of or relating to a court order forbidding the defendant in a lawsuit, pending or resolved, from filing a similar action against the same party in another jurisdiction. _ The purpose ofan antisuit order is usu. to prevent forum-shopping. See RES JUDICATA; COL LATERAL ESTOPPEL. [Cases: Courts C;:::>S16; Injunction 32,33.] antisuit injunction. See INJUNCTION. antitakeover measure. A provision in a company's organizational documents intended to discourage 111 unwanted takeover bids by setting forth the actions the company may take, as a target, to avoid an invol untary takeover. antitakeover statute. A state law deSigned to protect companies based in the state from hostile takeovers. antithetarius (an-tith-a-tair-ee-as). [Law Latin] Hist. An accused person who asserts that his or her accuser is guilty ofthe crime. Cf. APPROVER (1). Antitrust Civil Process Act. A federal law prescrib ing the procedures for an antitrust action by way of a petition in U.S. District Court. 15 USCA 1311 et seq. Antitrust Guidelines for the Licensing of Intellectual Property. A set of criteria, jOintly issued by the Anti trust Division ofthe U.S. Justice Department and the FTC, that those agencies apply in deciding whether to initiate an investigation or enforcement action as a result ofrestrictions in patent, copyright, trade-secret, and know-how licenses. 4 Trade Reg. Rep. (CCH) ~ 13,132 (April 6, 1995). antitrust law. 1. The body oflaw deSigned to protect trade and commerce from restraints, monopolies, price-fix ing, and price discrimination . The principal federal antitrust laws are the Sherman Act (15 USCA 1-7) and the Clayton Act (I5 USCA 12-27). "As legislative history and case law both disclose, the general objective of the antitrust laws is the maintenance of competition. Competition per se thus becomes a goal of the legal order. Yet, competition is not a concept which defines itself; notions about the desirability of competition may shape judgments about how the law should apply, at least at its indistinct edges." Lawrence A. Sullivan, Handbook ofthe Law ofAntitrust 5, at 20 (1977). 2. (cap.) SHERMAN ANTITRUST ACT. antlike persistency. (1924) Patents. Slang. The steady tenacity ofa patent practitioner or applicant who tries to wear down the U.S. Patent and Trademark Office by prosecuting patent claims in the hope that the Office will eventually relent . Judge Learned Hand coined

demark Office by prosecuting patent claims in the hope that the Office will eventually relent . Judge Learned Hand coined this pejorative expression in Lyon v. Boh, 1 F.2d 48, 49-50 (S.D.N.Y. 1924). AO. abbr. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. AOC. abbr. 1. ANNO ORBIS CONDITL 2. And other con sideration. See other consideration under CONSIDER ATION. AOD. abbr. ACTION ON DECISION. AOGI. abbr. See adjusted ordinary gross income under INCOME. AOUSC. abbr. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. APA. abbr. 1. ADMINISTRATIVE PROCEDURE ACT. 2. ADVANCE PRICING AGREEMENT. a pais (ah payor pays). [Law French] Hist. At or to the country; at issue. a pari (ay par-I). [Law Latin] Hist. Equally; in like manner. apocrisarius apartheid (a-pahrt-hayt or a-pahr-tIt). Racial segrega tion; speci, a comprehensive governmental policy of racial discrimination and segregation, as it was prac ticed in South Africa. apertum breve. See BREVE. apertum factum (a-par-tam fak-t3m). [Latin "open deed"] An overt act. apertura testamenti (ap-ar-t[yJoor-a tes-ta-men-tI). [Latin "opening ofthe testament"] Roman law. A proce dure for proving a will by which the witnesses acknowl edged their signatures and seal before a magistrate and the will was opened and publicly read. apex deposition. See DEPOSITION. apex juris (ay-peks joor-is). [Latin "summit oflaw"] An extreme point or subtlety oflaw, such as a merely tech nical objection in pleading or an extreme interpretation ofa doctrine. Cf. APICES LITIGANDI. apex rule. Mining law. The principle that a vein ofore may be mined ifit extends beyond the vertical bound aries ofthe surface claim on which the vein apexes. Also termed extra lateral right. Cf. INTRALIMINAL RIGHT. [Cases: Mines and Minerals (;:;>30.] APH. abbr. AMERICAN PRINTING HOUSE FOR THE BLIND. APHIS. abbr. ANIMAL AND PLANT HEALTH INSPECTION SERVICE. apices litigandi (ay-pi-seez lit-i-gan-dI). [Law Latin] Extremely fine points (or subtleties) oflitigation. Cf. APEX rURIS. APJ. abbr. See administrative patent judge under rUDGE. apocha (ap-a-ka). Roman & civil law. A receipt acknowl edging payment. An apocha discharges only the obli gation represented by the payment, in contrast to an acceptilation, which discharges an entire debt. Also spelled apoca. Cf. ACCEPTILATION; ANTAPOCHA. apochae oneratoriae (ap-a-kee oh-nar-ay-tor-ee-ee). [Law Latin "cargo receipt"] Hist. Bills oflading. apocha trium annorum (ap-a-ka tn-am a-nor-3m). [Latin "receipt for three years"] Scots law. Hist. Receipts for three consecutive periodic payments, the produc tion of which gave rise to a presumption that prior installments had been properly paid. "The production by the debtor of receipts for the last three consecutive installments of a termly payment, such as feu duty, rent, wages or interest, raises a presumption, the apocha trium annorum, rebuttable by parol eVidence, that all prior instalments have been duly paid. The same infer ence is notjustified by one receipt, even for three or more instalments. Nor do receipts for three instalments justify an inference that a bill, granted for earlier arrears, has been paid." 2 David M. Walker, Principles ofScottish Private Law 143 (4th ed. 1988). apocrisarius (a-pok-ri-sair-ee-as), n. [Latin] Hist. Eccles. law. 1. An ambassador; a messenger, such as a Pope's legate. 2. One who answers for another; esp., an officer who presented church matters to the emperor and conveyed the answers to the petitioners. 3. One who, upon consultation, gives advice in ecclesiastical matters. -Also termed responsalis; a responsis; secre tarius; consiliarius; referendarius; a consiliis. apographa (a-pog-ra-fa), n. pl. [fro Greek apographein "to copy"]l. Civil law. An examination and enumera tion ofthings possessed; an inventory. 2. Copies; tran scripts. apographal, adj. apostasy (a-pos-ta-see). 1. Hist. A crime against religion consisting in the total renunciation of Christianity by one who had preViously embraced it. 2. Eccles. law. Abandonment of religiOUS vows without dispensa tion. apostata capiendo. See DE APOSTATA CAPIENDO. apostate (a-pos-tayt). A person who has forsaken religion or a particular religion. -Also termed (archaically) apostata (ap-a-stay-ta). a posteriori Cay pos-teer-ee-or-I or ah pos-teer-ee-or-ee), adv. [Latin "from what comes after"] (16c) Inductively; from the particular to the general, or from known effects to their inferred causes <as a legal analyst, she reasoned a posteriori from countless individual cases to generalized rules that she finally applied>. Cf. APRIORI. a posteriori, adj. apostille (a-pos-til). [French "postscript, footnote"] Int'l law. A marginal note or observation; esp., a standard certification provided under the Hague Convention for authenticating documents used in foreign countries. Also spelled apostil. See CERTIFICATE OF AUTHORITY (1). apostle (a-pos-al), n. Civil & maritime law. L A letter sent from a trial court to an appellate court, stating the case on appeal. 2. The record or papers sent up on appeal. Also termed apostoli. 3. DIMISSORY LETTERS. apostolus (a-pos-ta-l<ls), n. [fro Greek apostolos "one sent from another"] Hist. A messenger, ambassador, legate, or nuncio. PI. apostoli (a-pos-t~-h). apotheca (ap-a-thee-b), n. [fro Greek apotheke "store") Civil law. A repository, as for wine or books. Pl. apoth ecae. apparatus. See MACHINE. apparatusdaim. See PATENT CLAIM. apparatus limitation. Patents. The inclusion ofa struc ture or phYSical apparatus in a method or process claim. An apparatus limitation, while not objection able, carries little weight toward establishing the pat entability ofa method or process claim. apparent, adj. (14c) 1. Visible; manifest; obvious. 2. Ostensible; seeming. apparent agency. See agency by estoppel under AGENCY (1). apparent agent. See AGENT (2). apparent assent. See ASSENT. apparent authority. See AUTHORITY (1). apparent danger. See DANGER. apparent defect. See patent defect under DEFECT. apparent easement. See EASEMENT. apparent heir. See heir apparent under HEIR. apparent principal. See PRINCIPAL (1). apparent servitude. See SERVITUDE (2). apparent title. See COLOR OF TITLE. apparitor (a-par-~-t<lr or -tor). 1. Roman law. (ital.) An officer who served a court, esp. as secretary, messen ger (viator), or herald. -Also termed viator. 2. Civil law. An officer who attends court to execute judicial orders. 3. Eccles. law. An officer who executes orders and decrees, esp. by serving summonses. apparlement (~-pahrl-m<mt), n. [Law French) Hist. like lihood, as in the apparlement ofwar. apparura (ap-a-ruur-<l), n. [fro Law Latin apparare "to furnish"] Hist. Furniture, apparel, implements, or tackle. appeal, n. (13c) 1. A proceeding undertaken to have a decision reconsidered by a higher authority; esp., the submission ofa lower court's or agency's decision to a higher court for review and possible reversal <the case is on appeal>. Also termed petition in error; (in Scots law) falsing ofdooms. See CERTIORARI. [Cases: Appeal and Error (;=0 1.] appeal as ofright. See appeal by right. appeal by application. An appeal for which permission must first be obtained from the reviewing court. Also termed appeal by leave. [Cases: Appeal and Error (;=0358.] appeal by right. An appeal to a higher court from which permission need not be first obtained. -Also termed appeal as ofright; appeal ofright. [Cases: Appeal and Error (;=0358.] appeal de novo. An appeal in which the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's rulings. -Also termed de novo review; de novo judicial review. [Cases: Appeal and Error (;=0 892; Federal Courts (;=0776.] appealfrom the decision ofthe chair. Parliamentary law. A motion by which a member invokes the assem bly's right ofreviewing its chair's decision on a point oforder. Also termed appeal from the ruling ofthe chair. appealfrom the ruling ofthe chair. See appeal from the decision ofthe chair. appeal in forma pauperis (in for-rna paw-p<lr-is). An appeal by an indigent party, for whom court costs are waived. Fed. R. App. P. 24. See IN FORMA PAUPERIS. [Cases: Appeal and Error (;=0389; Federal Courts 662.] consolidated appeal. An appeal in which two or more parties, whose interests were similar enough to make a joinder practicable, proceed as a Single appellant. [Cases: Appeal and Error (;=0325,328,816; Federal Courts <.r'=>651.] 113 cross-appeal. An appeal by the appellee, usu. heard at the same time as the appellant's appeal. [Cases: Appeal and Error 14(4).] delayed appeal. An appeal that takes place after the time for appealing has expired, but only when the reviewing court has granted permission because of special circumstances. [Cases: Appeal and Error 356,357.] devolutive appeal (di-vol-y;:Hiv). An appeal that does not suspend the execution of the underlying judgment. [Cases: Appeal and Error C=::>460.j direct appeal. An appeal from a trial court's decision directly fo the jurisdiction's highest court, thus bypassing review by an intermediate appellate court. Such an appeal may be authorized, for example, when the case involves the constitutionality ofa state law. duplicitous appeal. An appeal from two separate judg ments, from a judgment and an order, or from two orders. [Cases; Appeal and Error (;:::;0418.] federal appeal. An appeal to a federal appellate court usu. from (1) a federal district court to a United States circuit court, (2) a United States circuit court to the Supreme Court of the United States, or (3) a state supreme court to the Supreme Court of the United States. [Cases; Federal Courts C=445, 541.] frivolous appeal. (18c) An appeal having no legal basis, usu. filed for delay to induce a judgment creditor to settle or to avoid payment of a judgment . Federal Rule ofAppellate Procedure 38 provides for the award of damages and costs if the appellate court deter mines that an appeal is frivolous. Fed. R. App. P. 38. [Cases; Costs C==>260; Federal Civil Procedure 2839,2840.] interlocutory appeal. An appeal that occurs before the trial court's final ruling on the entire case. 28 USCA 1292(b) . Some interlocutory appeals involve legal points necessary to the determination of the case, while others involve collateral orders that are wholly separate from the merits of the action. See INTERLOC UTORY APPEALS FINAL-JUDGMENT RULE. [Cases: Appeal and Error Federal Courts C=::>572.L] judgment-roll appeal. An appeal based only on the pleadings, the findings ofthe court, and the judgment. [Cases: Appeal and Error limited appeal. An appeal from only certain portions of a decision, usu. only the adverse or unfavorable portions. precautionary appeal. See protective appeal. protective appeal. A precautionary appeal filed by counsel when the client might otherwise lose an effective right to appeal. A protective appeal is typically filed when (1) a client's motion to intervene has been denied, and the trial court is entering other orders that the client wants to appeal, (2) counsel has doubts about where to appeal, (3) counsel has doubts about the length ofthe appeal period, or (4) the client appearance must preserve uncertain or contingent rights. Also termed precaution

length ofthe appeal period, or (4) the client appearance must preserve uncertain or contingent rights. Also termed precautionary appeal. state appeal. An appeal to a state appellate court, either from a court of first instance to any intermediate appellate court or from a lower court to the highest court in the state-court system. [Cases; Appeal and Error L] suspensive appeal. An appeal that stays the execution ofthe underlying judgment. [Cases; Appeal and Error 460.] 2. Hist. The charging ofsomeone with a crime; speci., an accusation ofa crime, esp. treason or a felony. appeal, vb. 1. To seek review (from a lower court's decision) by a higher court <petitioner appeals the conviction>. 2. Hist. To charge with a crime; accuse. appealability, n. appealable decision. See DECISION. appeal as of right. See appeal by right under APPEAL. appeal bond. See BOND (2). appeal brief. See BRIEF. appeal by leave. See appeal by application under APPEAL. appeal by right. See APPEAL. appeal court. See appellate court under COURT. appeal de novo. See APPEAL. appealer. Archaic. APPELLANT. appeal from the chair. Parliamentary law. An assembly member's formal objection to a decision made by the chair. If the appeal is seconded, the chair must state what question was answered and explain the reasons for the chair's decision, then allow the members present to vote in support of or against that decision. appeal in forma pauperis. See APPEAL. appeal of felony. Hist. A procedure by which a person accused another of a crime, demanded proof of inno cence by wager of battle, or informed against an accom plice. Also termed appellum de felonia. appeal of right. See appeal by right under APPEAL. appeals council. A commission that hears appeals of rulings by administrative-law judges in social-security matters. [Cases; Welfare (~8.15, 142.5.J appeals court. See appellate court under COURT. appearance, n. (l4c) Procedure. A coming into court as a party or interested person, or as a lawyer on behalf of a party or interested person; esp., a defendant's act of taking part in a lawsuit, whether by formally partici pating in it or by an answer, demurrer, or motion, or by taking post judgment steps in the lawsuit in either the trial court or an appellate court. [Cases: Appear ance Federal Civil ProcedureC=::>561-574.] appear, vb. 'The English courts did not, until modern times, daimjuris diction over the person of the defendant merely by service of summons upon him. It was deemed necessary to resort to further process by attachment of his property and arrest of his person to compel 'appearance,' which is not mere presence in court, but some act by which a person who is sued submits himself to the authority and jurisdiction of the court. Any steps in the action, such as giving bail upon arrest, operated as an appearance or submission." Benjamin j. Shipman, Handbook ofCommon-Law Pleading 5, at 24 (Henry Winthrop Ballantine ed., 3d ed. 1923). 'The term 'appearance' is used particularly to signify or designate the overt act bywhich one against whom suit has been commenced submits himself to the court's jurisdic tion, although in a broader sense it embraces the act of either plaintiff or defendant in coming into court .... An appearance may be expressly made by formal written or oral declaration, or record entry, or it may be implied from some act done with the intention of appearing and submit ting to the court's jurisdiction." 4 Am. Jur. 2d Appearance I, at 620 (1995). appearance de bene esse. See special appearance. appearance pro hac vice (proh hak VI-see or proh hahk vee-chay). [Latin) An appearance made by an out-of state lawyer for one particular case, usu. by leave of court. For more on the pronunciation of this term, see PRO HAC VICE. [Cases: Attorney and Client 10.] , appearance under protest. English & Canadian law. See special appearance. compulsory appearance. An appearance by one who is required to appear by having been served with process_ [Cases: Appearance (;=> 1.] general appearance. A general-purpose appearance that waives a party's ability later to dispute the court's authority to enter a binding judgment against him or her. [Cases: Appearance C=.8-1O, 16-25; Federal Civil Procedure (;:=:0566.] initial appearance. A criminal defendant's first appear ance in court to hear the charges read, to be advised of his or her rights, and to have bail determined . The initial appearance is usu. required by statute to occur without undue delay. In a misdemeanor case, the initial appearance may be combined with the arraignment. See ARRAIGNMENT. [Cases: Arrest 70; Criminal Law (;=>261-264.] limited appearance. See special appearance. special appearance. 1. A defendant's pleading that either claims that the court lacks personal jurisdic tion over the defendant or objects to improper service of process. 2. A defendant's showing up in court for the sole purpose of contesting the court's assertion of personal jurisdiction over the defendant. Special appearances have been abolished in federal court. Fed. R. Civ. P. 12(b). Also termed limited appear ance; appearance de bene esse; (in English &Canadian law) appearance under protest. [Cases: Appearance (;=>9(2, 3); Federal Civil Procedure (;=>565.] voluntary appearance. An appearance entered by a party's own will, without the service of process. [Cases: Appearance appearance bond. See bail bond under BOND (2). appearance date. See answer day under DAY. appearance day. See answer day under DAY. appearance de bene esse. See speCial appearance under APPEARANCE. appearance docket. See DOCKET (I). appearance doctrine. (1972) In the law of self-defense, the rule that a defendant's use offorce is justified ifthe defendant reasonably believed it to be justified. [Cases: Assault and Battery <8;:::;67; Homicide C=795.] appearance pro hac vice. See APPEARANCE. appearance term. See TERM (5). appearance ticket. See CITATION (2). appearance under protest. English & Canadian law. See special appearance under APPEARANCE. appellant (<l-pel-<lnt). (ISc) A party who appeals a lower court's decision, usu. seeking reversal of that decision. Also termed (archaically) plaintiffin error; (formerly) appealer. Cf. APPELLEE. [Cases: Appeal and Error (;=>321.] appellate (<l-pel-it), adj. (18c) Ofor relating to an appeal or appeals generally. appellate brief. See BRIEF (1). appellate counsel. See COUNSEL. appellate court. See COURT. appellate division. A department of a superior court responsible for hearing appeals; an intermediate appel late court in some states, such as New York and New Jersey. [Cases: Courts appellate jurisdiction. See JURISDICTION. appellate record. See RECORD ON APPEAL. appellate review. See REVIEW. appellate rules. A body of rules governing appeals from lower courts. [Cases: Courts (;=>80(4); Federal Courts Appellate Term. A division of the New York Supreme Court established to hear both appeals from decisions of the civil and criminal courts of New York City and appeals from district courts, town courts, and other lower courts . The Appellate Term's decisions are often unpublished but are binding authority on the lower courts. [Cases: Courts (;=>50, 107.] appellatio (ap-<l-lay-shee-oh), n. [Latin] Roman law. An appeal from a lower court. PI. appellationes (ap-<l-lay shee-oh-neez). appellation oforigin. Trademarks. Representation ofa product's geographic origin by use of a mark -such as symbol, word, phrase, or graphic element such as a map -whose use is regulated to ensure that the products so marked reflect some well-known feature peculiar to the region . This term usu. applies to a product whose quality or some characteristic feature has been gained by natural means, such as by the nature of the local climate or soil, or by the nature of the way it is made, such as by local customs of production. For example, the appellation burgundy can be used only for wines made from certain types ofvarietal grapes 115 from particular regions ofFrance. [Cases: Trademarks <r~104S.1 appellator (ap-<l-lay-tar), n. [Latin] Roman & civil law. An appellant. appellee (ap-<l-Iee). (16c) A party against whom an appeal is taken and whose role is to respond to that appeal, usu. seeking affirmance of the lower court's decision. See RESPONDENT. Cf. APPELLANT. [Cases: Appeal and Error~326.1 appello (<I-pel-oh), vb. [Latin] Roman law. I appeal. This was the form of making an appeal apud acta (in the presence. of the judge). appellor (<I-pel-or or ap-a-Ior). lUst. English law. A person who formally accuses another of a crime, chal lenges a jury, or informs against an accomplice. appellum deielonia. See APPEAL OF FELONY. appendant (<I-pen-d<lnt), adj. (ISc) Attached or belong ing to property as an additional but subsidiary right. appendant, n. appendant claim. See dependent claim under PATENT CLAIM. appendant easement. See easement appurtenant under EASEMENT. appendant power. See POWER (s). appenditia (ap-en-dish-ee-a), n. [Law Latin] Hist. The appendages or appurtenances of an estate. appendix, n. (16c) 1. A supplementary document attached to the end of a writing <the brief includes an appendix of exhibits>. For the requirements of an appendix to a federal appellate brief, see Fed. R. App. P. 30.2. English law. A volume that contains material doc uments and other evidence presented in a lower court. The volume is used by the House of Lords or Privy Council when functioning as an appellate tribunal. PI. appendixes, appendices. appensura (ap-en-s[y]oor-d), n. [fro Latin appel1dere "to weigh out"] Hist. The payment of money by weight rather than by count. applicable exclusion amount. Tax. The dollar value of an estate that is exempt from federal estate and gift taxes. See unified estate-and-gift-tax credit under TAX CREDIT. applicable exclusion credit. See unified estate-and-gift tax credit under TAX CREDIT. applicando singula singulis (ap-li-kan-doh sing-gy<l-l<l sing-gYd-lis). [Law Latin) Hist. By applying each to each; to apply each condition to . The phrase was used in deed constructions. applicant. (18c) 1. One who requests something; a petitioner, such as a person who applies for letters of administration. 2. ACCOUNT PARTY. application. (ISc) 1. A request or petition. See copy RIGHT APPLICATION; PATENT APPLICATION; TRADE MARK APPLICATION. 2. MOTION. applied cost ex parte application. See ex parte motion under MOTION (1). interlocutory application. A motion for equitable or legal relief sought before a final decision. 3. Bankruptcy. A request for an order not requiring advance notice and an opportunity for a hearing before the order is issued. [Cases: Bankruptcy ~21S6.1 Application Division. Patents. The part of the U.S. Patent and Trademark Office that is responSible for accepting patent applications, assigning them serial numbers, checking them for completeness and formali ties, placing them in file wrappers, and assigning them to an appropriate art group based on the invention's class and subclass of technology. application for a reissue patent. See PATENT APPLICA TION. application for leave to appeal. (1882) A motion asking an appellate court to hear a party's appeal from a judgment when the party has no appeal by right or when the party's time limit for an appeal by right has expired. The reviewing court has discretion whether to grant or reject such a motion. [Cases: Appeal and Error ~361;Federal Courts ~660.] application for transfer. In some jurisdictions, a request to a state's highest court to hear an appeal from an intermediate court of appeal. The appeal is heard as though it had been appealed to the highest court origi nally. The court may typically ignore the intermediate court's decision and may consider an error that was not raised in the intermediate court. [Cases: Courts ~487(1), 488(1).] application number. Patents & Trademarks. The eight digit sequential number assigned by the U.S. Patent and Trademark Office to a patent or trademark application . Applications are typically referred to by an applica tion number, which consists ofa two-digit series code, a slash, and a six-digit serial number. References to patent applications also include the filing date <application no. 08/944,183, filed September 20, 1978>. Also termed serial number. application service provider. A business that hosts software on its computers and gives subscribers access as needed . The subscriber does not need to purchase a license to use the software

software on its computers and gives subscribers access as needed . The subscriber does not need to purchase a license to use the software before the proVider sends it to the subscriber's computer, usu. over the Internet or a private electronic network. -Abbr. ASP. applied-art doctrine. Copyright. The rule that a picto rial, graphic, or sculptural work that has an inherent use apart from its appearance, and is also an expres sive work apart from its utility, may qualify for copy right protection . Examples have included bookends, lamps, and sundials. In contrast to applied art, indus trial designs are not copyrightable, although they may be protected by design patents instead. Also termed useful-article doctrine. [Cases: Copyrights and Intel lectual Property ~4.J applied cost. See COST (1). 116 apply apply, vb. (14c) 1. To make a formal request or motion <apply for a loan> <apply for injunctive relief>. 2. To employ for a limited purpose <apply payments to a reduction in interest>. 3. To put to use with a particular subject matter <apply the law to the facts> <apply the law only to transactions in interstate commerce>. appointed counsel. See assigned counsel under COUNSEL. appointee. (18c) 1. One who is appointed. 2. One who receives the benefit of a power of appointment. See POWER OF APPOINTMENT. [Cases: Powers permissible appointee. A person to whom appointive prope'rty may be assigned under a power of appoint ment. Also termed object ofthe power ofappoint ment; object ofthe power; object ofa power. appointive asset. See ASSET. appointive property. See PROPERTY. appointment, n. (15c) 1. The designation of a person, such as a nonelected public official, for a job or duty; esp., the naming of someone to a nonelected public office <Article II of the U.S. Constitution grants the President the power of appointment for principal federal officials, subject to senatorial consent>. [Cases: Officers and Public Employees United States (;= 35.] at-pleasure appointment. See pleasure appointment. pleasure appointment. The assignment of someone to employment that can be taken away at any time, with no requirement for cause, notice, or a hearing. -Also termed at-pleasure appointment. [Cases: Officers and Public Employees C='60.] public appointment. An appointment to a public office. [Cases: Officers and Public Employees (;=8.] recess appointment. An appointment, including a judicial appointment, made by the President when the Senate is not in session, subject to the Senate's later ratification. [Cases: Judges (;=3; United States 2. An office occupied by someone who has been appointed <a high appointment in the federal gov ernment>. 3. Parliamentary law. The naming of an officer, the members of a committee, or the holder of any other title in an organization by means other than the organization's election. 4. The act of disposing of property, in exercise ofa power granted for that purpose <the tenant's appOintment oflands>. See POWER OF APPOINTMENT. [Cases: Powers 1.] -appoint, vb. appointer (for senses 1-3), n. appointor (for sense 4), n. illusory appointment. A nominal, unduly restrictive, or conditional transfer of property under a power of appointment. [Cases: Powers (;=36(3).] "Like many other theories which are very plausible in the abstract, experience has shown that the doctrine of illusory appointments is difficult in application, since the term 'illusory' is vague and indefinite. And, because of the difficulty of formulating rules for determining what is an illusory appointment and the evils resulting from attempts to substitute the judicial will for the intent of the donor and donee of the power, the doctrine has been condemned or rejected by many courts." 62 Am.Jur. 2d Powers ofAppoint ment 186 (1990). Appointments Clause. (1976) The clause of the U.S. Con stitution giving the President the power to nominate federal judges and various other officials. U.S. Const. art. II, 2. [Cases: United States (;=35.] apport (;;I-port), n. [Law French] Hist. A tax, expense, tribute, or payment. apportionment, n. (16c) 1. Division into proportion ate shares; esp., the division of rights and liabilities between two or more persons or entities. 2. Tax. The act of allocating or attributing moneys or expenses in a given way, as when a taxpayer allocates part of profits to a particular tax year or part of the use of a personal asset to a business. [Cases: Taxation 3477.] 3. Distribution of legislative seats among districts; esp., the allocation ofcongressional representatives among the states based on population, as required by the 14th Amendment. -The claim that a state is denying the right of representation to its citizens through improper apportionment presents a justiciable issue. -Also termed legislative apportionment. See REAPPORTION MENT. [Cases: Elections (;=12(6).]4. The division (by statute or by the testator's instruction) of an estate tax liability among persons interested in an estate. apportion, vb. apportionment clause. Insurance. A policy provision that distributes insurance proceeds in proportion to the total coverage. [Cases: Insurance (;=2193.] apportionment ofliability. (1855) Torts. The parceling out ofliability for an injury among multiple tortfea sors, and possibly the plaintiff as well. _ Apportion ment of liability encompasses such legal doctrines as joint and several liability, comparative responsibility, indemnity, and settlements. See Restatement (Third) of Torts: Apportionment of Liability (1999). [Cases: Neg ligence (;=484, 549; Torts (;=125.] apportionment rule. Oil & gas. The minority doctrine that royalties accrued under an oil-and-gas lease on land that is subdivided during the lease term must be shared by the landowners in proportion to their inter ests in the land. -For example, ifGrey granted a lease to Simms, then sold one-half of the land to Metcalfe, Simms and Metcalfe would each be entitled to one-half of any royalty from the land, no matter where the pro ducing well is located. Only California, Mississippi, and Pennsylvania follow this rule. Cf. NONAPPORTIONMENT RULE. [Cases: Mines and Minerals (;=79.1(3).] apportum (;;I-por-t;;lm), n. [Law Latin] Hist. The revenue, profit, or emolument that something brings to its owner. -This was often used in reference to a pension. appose (;;I-pohz), vb. Hist. 1. To interrogate, esp. with difficult questions. 2. To confront (someone) with objections to something. 3. To examine the books and accounts of; audit. 117 apposer (J-pohz-Jr). Hist. 1. A questioner; interroga tor. 2. An Exchequer officer who examined sheriffs' accounts; speci., an officer responsible for examin ing the sheriff's estreat (book of fines), comparing the entries with those in court records, and apposing (interrogating) the sheriff on each sum in the estreat. This office was abolished in England in 1833. Also termed foreign apposer. apposite (ap-<l-zit), adj. Suitable; appropriate. appraisal, n. (1817) 1. The determination of what con stitutes a fair price; valuation; estimation of worth. 2. TIle report of such a determination. -Also termed appraisement. Cf. ASSESSMENT (3). appraise, vb. appraisal clause. An insurance-policy provision allowing either the insurer or the insured to demand an independent estimation of a claimed loss. [Cases: Insurance (;::::'3249.] appraisal remedy. The statutory right ofcorporate share holders who oppose some extraordinary corporate action (such as a merger) to have their shares judicially appraised and to demand that the corporation buy back their shares at the appraised value. Also termed appraisal right; dissenters' right; right of dissent and appraisal. [Cases: Corporations (;:::: 182.4(4)-182.4(6), 584.] appraisal trinity. The three most commonly accepted methods of appraising real property: the market approach, the cost approach, and the income approach. See MARKET APPROACH; COST APPROACH; INCOME APPROACH. [Cases: Evidence appraisement. (17c) 1. APPRAISAL. 2. An ADR method used for resolving the amount or extent of liability on a contract when the issue of liability itself is not in dispute. _ Unlike arbitration, appraisement is not a quasi-judicial proceeding but instead an informal determination of the amount owed on a contract. [Cases: Alternative Dispute Resolution appraiser. An impartial person who estimates the value ofsomething, such as real estate, jewelry, or rare books. Also termed valuer. business appraiser. An appraiser who specializes in determining the value of commercial enterprises and property, including real estate and intellectual property. merchant appraiser. See MERCHANT APPRAISER. appreciable, adj. Capable of being measured or per ceived. appreciate, vb. 1. To understand the Significance or meaning of. 2. To increase in value. appreciation, n. (18c) An increase in an asset's value, usu. because ofintlation. Cf. DEPRECIATION. appre ciate, vb. appreciable, adj. appreciation surplus. See revaluation surplus under SURPLUS. appreciation test. (1970) Criminal law. A test for the insanity defense requiring proof by clear and appropriation convincing evidence that at the time of the crime, the defendant suffered from a severe mental disease or defect preventing him or her from appreciating the wrongfulness of the conduct. This test, along with the accompanying plea of not guilty by reason of insanity, was established by the Insanity Defense Reform Act of 1984.18 USCA 17. -Also termed Insanity Defense Reform Act of1984 test. See INSANITY DEFENSE. [Cases: Criminal Law apprehensio (ap-ri-hen-see-oh). [Latin] 1. APPREHEN SION (1). 2. Civil law. Seizure; a procedure for acquir ing something that belongs to no one. -It is a type of occupatio. apprehension, n. (14c) 1. Seizure in the name ofthe law; arrest <apprehension of a criminal>. [Cases: Arrest (:::::68(3).] 2. Perception; comprehension; belief <the tort of assault requires apprehension by the plaintiff of imminent contact>. 3. Fear; anxiety <most people approach public speaking with some apprehension>. apprehend, vb. apprentice. 1. Hist. A person bound by an indenture to work for an employer for a specified period to learn a craft, trade, or profession. "Apprentices, in the strict legal sense, are servants. usually but not necessari Iy infants, who agree to serve their masters with a view to learning some trade or bUSiness, and whose masters on their part agree to instruct them. The contract is usually for a term of years and is normally embodied in a deed, in which case the apprentice is said to be bound by an indenture of apprenticeship. It is cus tomary for the father of the apprentice (or some person standing in loco parentis), as well as the apprentice himself to execute the deed or other instrument, and thus become liable for the due observance by the apprentice of his obligations thereunder. When an apprentice deliberately misconducts himself in such a way that, in the case of any other servant, his behaviour would amount to a repudia tion of the agreement, and thereupon the master decides to accept the repudiation and dismisses him, the appren tice's repudiation is not effective, and the contract is not terminated, unless the Court find that such a course would be for the infant's benefit. Otherwise the infant could do indirectly what he could not do directly -namely, bring about a rescission of the contract." 2 Stephen's Commentar ies on the Laws of England 133-34 (L. Crispin Warmington ed., 21 st ed. 1950). 2. A learner in any field ofemployment or business, esp. one who learns by hands-on experience or technical on-the-job training by one experienced in the field. apprentice of the law. Hist. 1. A law student. 2. A bar rister ofjunior status. Also termed apprentice en la ley; apprenticius ad legem. apprenticius ad legem (a-pren-tish-ee-<ls ad lee-j<lm). [Law Latin] APPRENTICE Of THE LAW. apprize, vb. To appraise; to assign a value to. approach, right of. See RIGHT OF APPROACH. appropriated retained earnings. See EARNINGS. appropriated surplus. See SURPLUS. appropriation, n. (14c) 1. The exercise of control over property; a taking of possession. Cf. EXPROPRIATION (1); MISAPPROPRIATION (1). 2. A legislative body's act of 118 appropriations bill setting aside a sum of money for a public purpose. _ If the sum is earmarked for a precise or limited purpose, it is sometimes called a specific appropriation. [Cases: States C=) 129.] 3. The sum ofmoney so voted.

a specific appropriation. [Cases: States C=) 129.] 3. The sum ofmoney so voted. 4. Torts. An invasion of privacy whereby one person takes the name or likeness of another for commercial gain. [Cases: Torts 386.]5. The transfer of a benefice, together with all its interests, to a spiritual corpora tion. See spiritual corporation under CORPORATro". Cf. IMPROPRIATION. 6. The benefice so transferred. appropriate, vb. appropriable, adj. -appropria tor, n. appropriations bilL See BILL (3). appropriator, n. Hist. Eccles. law. The corporate pos sessor ofan appropriated benefice -that is, a benefice that has been perpetually annexed to a spiritual cor poration, often a monastic house. approval sale. See sale on approval under SALE. approve, vb. 1. To give formal sanction to; to confirm authoritatively. 2. Parliamentary law. To adopt. See ADOPTION (5). approval, n. Approved Drug Products with Therapeutic Equiva lence Evaluations. See ORANGE BOOK. approved indorsed note. See NOTE (1). approved list. See LEGAL LIST. approvement. 1. English law. The right of an owner of common lands to enclose them partially and receive income arising from them. -This right -originally granted by the Statute ofMerton (1235) is still avail able, but a landowner seeking to approve land must receive the government's consent to do so. 2. Hist. The act of avoiding a capital conviction by accusing an accomplice; turning king's evidence. approver (<l-proo-v<lr), n. Hist. 1. One who offers proof; esp., a criminal who confesses and testifies against one or more accomplices. See relative confession under CON FESSION. Cf. ANTITHETARIUS. 2. An agent or bailiff; esp., one who manages a farm or estate for another. approximation, doctrine of. See DOCTRINE OF APPROXI MATION. appruare (ap-roo-air-ee), vb. [Law Latin] Hist. To obtain a benefit from land by making improvements. appurtenance (a-part-[<l-]n<lnts), n. (14c) Something that belongs or is attached to something else <the garden is an appurtenance to the land>. [Cases: Deeds C=117.] "The word 'appurtenances' which in former times at least was generally employed in deeds and leases is derived from the word apparenrir which is Norman French and means to belong to. Speaking broadly, the word means anything corporeal or incorporeal which is an incident of, and belongs to some other thing as principal. At a time when the construction of conveyances was of a more technical character than it is at present the word was con sidered of much greater importance than it is now and it was considered that in its absence from a lease or other conveyance a very restricted meaning should attach to the words of the description of the premises conveyed." 1 H.C. Underhill, A Treatise on the Law of Landlord and Tenant 291, at 442-43 (1909). appurtenant, adj. (14c) Annexed to a more important thing. -Also termed (in Scots law) part and perti nent. appurtenant easement. See easement appurtenant under EASEMENT. APR. abbr. See annual percentage rate under INTEREST RATE. d prendre (ah prawn-dr .. or -d..r). [French] (17c) For taking; for seizure. See PROFIT APRENDRE. a priori (ay pn-or-I or ah pree-or-ee), adv. [Latin "from what is before"] (17c) Deductively; from the general to the particular <as an analyst, he reasoned a priori from seemingly self-evident propositions to particular conclusions>. Cf. A POSTERIORI. a priori, adj. a provisione viri (ay pr<l-vizh-ee-oh-nee vl-n). [Latin] By the provision ofa man (Le., a husband). APS. abbr. 1. ADULT PROTECTIVE SERVICES. 2. AUTO MATED PATENT SYSTEM. apud acta (ap-<ld ak-t<l). [Latin] Roman & civil law. Among the acts; among the judicial proceedings recorded in writing. _ This phrase refers to appeals taken orally in the presence of the judge. apud judicem. See IN JUDICIO. APV. abbr. See adjusted present value under PRESENT VALUE. a qua (ay kway or kwah). [Latin] See A QUO. aqua (ak-w<l), n. [Latin] Roman law. 1. Water. 2. A water course. PI. aquae (ak-wee). aqua aestiva (ak-w<l es-tI-V<l). Summer water; water used only in the summer. aqua currens (ak-w<l kar-enz). See aqua profluens. aqua dulcis (ak-w<l d31-sis). Fresh water. -Also termed aqua frisca. aquafontanea (ak-wa fon-tay-nee-<l). Springwater. aquafrisca (ak-w.. fris-k<l). See aqua dulds. aqua profluens (ak-w.. prof-loo-enz). Flowing or running water. Also termed aqua currens. aqua quotidiana (ak-wa kwoh-tid~ee-ay-na). Daily water; water that can be drawn at all times of the year. Also spelled aqua cottidiane. aqua salsa (ak-wa sal-s<l). Salt water. aquaeductus (ak-wee-d<lk-t<ls), n. [Latin "conveying of water"] See servitus aquae ducendae under SERVITUS. aquae ferventis judicium. [Latin] Eccles. law. See ordeal by water (2) under ORDEAL. aquae frigidae judicium. [Latin1Eccles. law. See ordeal by water (1) under ORDEAL. aquaehaustus (ak-wee-haws-t<ls), n. [Latin "drawing of water"] A servitude granting the right to draw water from a well, pool, spring, or stream on another's land. -Also termed jus aquaehaustus; servitus aquae haustus; servitus aquae hauriendae. 119 aquae immittendae (ak-wee im-;l-ten-dee). [Latin "waters to be discharged"] A servitude consisting in the right of one whose house is surrounded by other buildings to discharge wastewater on the neighboring roofs or yards. -This is similar to common-law drip rights. -Also termed stillicidium. Cf. servitus stillicidii under SERVITUS; DRIP RIGHTS. aqua fontanea. See AQUA. aqua frisca. See aqua dulcis under AQUA. aquagium (J-kway-jee-;lm), n. [Law Latin] Hist. 1. A canal for draining water, esp. from marshy land. 2. A payment for supplying water to a mill or carrying goods bywater. . aqua projluens. See AQUA. aqua quotidiana. See AQUA. aqua salsa. See AQUA. aquatic right. See WATER RIGHT. Aquilian law. See LEX AQL'ILIA. a quo (ah or ay kwoh), adv. [LatinJ From which. Also termed a qua. See AD QUEM; court a quo under COURT. a quo invito aliquid exigi potest (ay kwoh in-vI-toh al-i-kwid ek-SJ-jI poh-test). [Latin] Scots law. From whom something may be exacted against his will. The phrase appeared in reference to the position of a debtor under a legal obligation, as distinguished from his position under a natural, voluntary obligation. A.R. abbr. ANNO REGNI. arabant (J-ray-b.:mt). [Latin]lbey plowed. -This term was applied to those who held by the tenure ofplowing and tilling the lord's lands within the manor. arable land. See LAND. aralia (J-ray-lee-,,), n. See arable land under LAND. aratia (;l-ray-shee-J), n. See arable land under LAND. arator (,,-ray-tdr), n. [Law Latin] Rist. A farmer ofarable land. aratrum terrae (J-ray-tr;lm ter-ee), n. [Law Latin] Hist. The amount ofland that can be plowed with a single plow; plowland. araturia (ar-<=l-t[y]oor-ee-<=l), n. [Law Latin] See arable land under LAND. ARB. abbr. ACCOUNTING RESEARCH BULLETIN. arbiter (ahr-b;l-tJr). (14c) One with the power to decide disputes, such as a judge <the Supreme Court is the final arbiter oflegal disputes in the United States>. Cf. ARBITRATOR. arbitrage (ahr-b;l-trahzh), n. The simultaneous buying and selling ofidentical securities in different markets, with the hope of profiting from the price difference between those markets. Also termed space arbitrage. [Cases: Securities Regulation 53.17(4).] arbi trager (ahr-bJ-trazh-;lr), arbitrageur (ahr-b<=l-trah zh;)r), n. convertible arbitrage. See kind arbitrage. arbitration covered-interest arbitrage. The simultaneous invest ment in a currency and execution of spot- and forward-rate foreign-exchange contracts to take advantage of exchange-rate and interest-rate differ entials between currencies without assuming foreign exchange risk. currency arbitrage. The simultaneous purchase of a currency in one market and sale of it in another to take advantage of differences or fluctuations in exchange rates. kind arbitrage. Purchase of a security that, having no restriction other than the payment of money, is exchangeable or convertible within a reasonable time to a second security, with a simultaneous offsetting sale of the second security. -Also termed convert ible arbitrage. risk arbitrage. Arbitrage ofassets that are probably, but not necessarily, equivalent; esp., arbitrage of corpo rate stock in a potential merger or takeover, whereby the target company's stock is bought and the acquir ing company's stock is sold simultaneously. time arbitrage. Purchase of a commodity against a present sale ofthe identical commodity for a future delivery; esp., the simultaneous buying and selling of securities for immediate delivery and future delivery, with the hope of profiting from the difference in prices. arbitrage bond. See BOND (3). arbitrament (ahr-bi-trJ-m<1nt). (15c) 1. The power to decide for oneself or others; the power to decide finally and absolutely. 2. The act of deciding or settling a dispute that has been referred to arbitration. [Cases: Alternative Dispute Resolution C=>30I-336.] 3. AWARD. Also spelled (archaically) arbitrement. arbitrament and award. A plea that the same matter has already been decided in arbitration. [Cases: Alternative Dispute Resolution e=-380, 406.] arbitrary, adj. (I5c) 1. Depending on individual discre tion; speci., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. _ This type of decision is often termed arbitrary and capricious. Cf. CAPRICIOUS. arbitrary mark. See arbitrary trademark under TRADE MARK. arbitrary name. See arbitrary trademark under TRADE MARK. arbitrary trademark. See TRADEMARK. arbitration, n. (15c) A method of dispute resolution involving one or more neutral third parties who are usu. agreed to by the disputing parties and whose decision is binding. -Also termed (redundantly) binding arbi tration. Cf. MEDIATION (1). [Cases: Alternative Dispute Resolution Gc::: 111.] -arbitrate, vb. arbitral, adj. ad hoc arbitration. (1931) Arbitration of only one issue. 120 arbitration act adjudicative-claims arbitration. (I972) Arbitration designed to resolve matters usu. handled by courts (such as a tort claim), in contrast to arbitration of labor issues, international trade, and other fields tra ditionally associated with arbitration. compromissory arbitration. An international arbi tration grounded on a mutual promise to define the scope of the dispute and abide by the arbitrator's decision. See COMPROMIS. compulsory arbitration. (l8B) Arbitration required by law or forced by law on the parties. court-ordered arbitration. See judicial arbitration. final-offer arbitration. (197l) Arbitration in which each party must submit a "final offer" to the arbitra tor, who may choose only one. -This device gives each party an incentive to make a reasonable offer or risk the arbitrator's accepting the other party's offer. The purpose of this type of arbitration is to counteract arbitrators' tendency to make compromise decisions halfway between the two parties' demands. grievance arbitration. 1. Arbitration that involves the violation or interpretation of an existing contract. The arbitrator issues a final decision regarding the meaning ofthe contractual terms. 2. Labor law. Arbi tration of an employee's grievance, usu. relating to an alleged violation of the employee's rights under

tration of an employee's grievance, usu. relating to an alleged violation of the employee's rights under a collective-bargaining agreement. -The arbitra tion procedure is set out in the collective-bargaining agreement. Grievance arbitration is the final step in grievance procedure. -Also termed rights arbitra tion. See GRIEVANCE PROCEDURE. [Cases: Labor and Employment "The great majority of today's collective bargaining agree ments provide for an impartial arbitrator to hear and decide grievances under the bargaining agreement. The details of grievance arbitration vary considerably among agreements." Douglas L. leslie, Labor Law in a Nutshell 264 (3d ed. 1 992). interest arbitration. Arbitration that involves settling the terms of a contract being negotiated between the parties; esp., in labor law, arbitration of a dispute concerning what provisions will be included in a new collective-bargaining agreement. -When the parties cannot agree on contractual terms, an arbitra tor decides. This type ofarbitration is most common in public-sector collective bargaining. [Cases: Labor and Employment judicial arbitration. Court-referred arbitration that is final unless a party objects to the award. Also termed court-ordered arbitration. rights arbitration. See grievance arbitration. voluntary arbitration. (18c) Arbitration by the agree ment of the parties. arbitration act. (1807) A federal or state statute provid ing for the submission of disputes to arbitration. [Cases: Labor and Employment c:=> 1520.] arbitration and award. An affirmative defense assert ing that the subject matter of the action has already been settled in arbitration. [Cases: Alternative Dispute Resolution arbitration hoard. A panel of arbitrators appointed to hear and decide a dispute according to the rules of arbitration. [Cases: Alternative Dispute Resolution C:=>220.] arbitration bond. A performance bond executed by the parties in an arbitration. See PERFORMANCE BOND (1). [Cases: Alternative Dispute Resolution arbitration clause. (1828) A contractual provision man dating arbitration and thereby avoiding litigation ofdisputes about the contracting parties' rights, duties, and liabilities. [Cases: Arbitration C= 1.1.] arbitration ofexchange. The simultaneous buying and selling of bills of exchange in different international markets, with the hope of profiting from the price dif ference of the currencies in those markets. See ARBI TRAGE; DRAFT (1). arbitrator, n. (ISc) A neutral person who resolves disputes between parties, esp. by means of formal arbitration. Also termed impartial chair; (in Latin) compromissarius. Cf. MEDIATOR; ARBITER. [Cases: Alternative Dispute Resolution C:=>220.] arbitra torship, n. arbitrement. Archaic. See ARBITRAMENT. arbitrium (ahr-bi-tree-<lm). [Law Latin] An award; a decision of an arbitrator. arbor civilis (ahr-b<lr siv-<l-lis). [Latin "civil tree"] A genealogical tree. Also termed arbor consanguini taUs. arbor consanguinitatis. See ARBOR CIVILIS. arbor finalis (ahr-b<lr fi-oay-lis). [Latin] Hist. A boundary tree; a tree used for marking a boundary line. arborum furtim caesarum (ahr-bor-<lm f3r-tim si-sair-<lm or si-zair-). [Latin] Roman law. A civil action in tort for secretly cutting down trees on another's land. arcana imperii (ahr-kay-n<l im-peer-ee-I). [Latin] State secrets. arcarius (ahr-kair-ee-<ls). [Latin] Hist. A treasurer; a keeper ofpublic money. Archaionomia (ahr-kee-<l-noh-mee-<l). A Latin trans lation of Saxon laws, published in 1568 by William Lambarde. archbishop. Eccles. law. A church officer who has author ity over all ecclesiastical matters within a province. Within the Church of England, the Archbishop of Can terbury is superior in rank to but does not control the Archbishop ofYork, who has supreme authority in the province of York. Both are appointed for life by land's monarch (as head of the Church ofEngland), on the advice of the Prime Minister, and are members of the House of Lords. archbishopric. Eccles. law. An archbishop's jurisdiction or province. 121 archdeaconry. Eccles. law. 1. An archdeacon's jurisdic tion. 2. The office or rank of an archdeacon. Archdeacon's Court. See COURT OF ARCHDEACON. Archdiaconal Court. See COURT OF ARCHDEACON. Arches Court ofCanterbury. See COURT OF ARCHES. archicapellanus (ahr-kee-kap-d-Iay-nds). [Law Latin] Hist. A chief or high chancellor. Architect of the Capitol. The officer in the legislative branch ofthe federal government responsible for main taining the buildings and grounds of the U.S. Capitol, the Supreme Court, and the Library ofCongress. -The Architect also plans and supervises new building con struction. The office was established in 1876. 2 USC A 1801, 181 L architect's lien. See LIE1\. architectural review. See DESIGN REVIEW. architectural work. See WORK (2). archival copy. Copyright. A copy of an original piece of software, made by the consumer for backup. -An owner may make archival copies of software without infringing its copyright. But ifthe owner transfers the original software, all archival copies must also be trans ferred or else destroyed. 17 USCA 117. [Cases: Copy rights and Intellectual Property (~67.3.) archive, n. (usu. pl.) 1. A place where public, historical, or institutional records are systematically preserved. [Cases: Records 13.] 2. Collected and preserved public, historical, or institutional papers and records. 3. Any systematic compilation of materials, esp. writings, in physical or electronic form. -archive, vb. Archivist of the United States. The federal officer in charge of the National Archives and Records Admin istration. arcifinious (ahr-sd-fin-ee-ds), adj. [fr. Latin arcijin ius "having irregular boundaries"] Civil law. 1. (Of . a landed estate) having natural boundaries such as woods, mountains, or rivers. 2. (Of a country) having a frontier that forms a natural defense. arcta et salva custodia (ahrk-td et sal-vd kd-stoh-dee-a). [Law Latin] Hist. In close and safe custody . A defen dant arrested under the writ of capias ad satisfacien dum was said to be kept arcta et salva custodia. ardour. [Law French] Hist. An arsonist. area bargaining. Negotiation of collective-bargaining agreements by a union with several employers in a par ticular geographic area. area-rate clause. Oil & gas. A price-escalation provi sion in a long-term gas contract permitting an auto matic increase in the contract price if any regulatory agency prescribes or allows a higher price on gas sold in the area. Also termed FPC clause. [Cases: Gas 14.1(3).] area-standards picketing. Labor law. The practice that a union undertakes to protect its members in a particular region by picketing employers that may undercut the argumentative market through the potentially lower labor costs of a nonunion workforce. area variance. See VARIANCE (2). Areeda-Turner test. Antitrust. An economic test for predatory pricing whereby a price below average variable cost is presumed to be predatory and there fore illegal. -This test is widely accepted by federal courts. Its name derives from the coauthors ofan influ entiallaw-reviewarticle: Phillip Areeda & Donald F. Turner, Predatory Pricing and Practices Under Section 2 ofthe Sherman Act, 88 Harv. L. Rev. 692 (1975). They reformulated their test in 3 Phillip Areeda & Donald F. Turner, Antitrust Law ~~ 7l0-722 (1978). See PREDA TORY PRICING. Ii rendre (ah rawn-drd or -ddr). [Law French] To render; to yield. arentare (ar-an-tair-ee). [Law Latin] To rent out; to let out at a certain rent. A reorganization. See REORGANIZATION (2). arere (a-reer), adj. [Law French] Behind in payment (as ofrent); in arrears. See ARREAR (1). a responsis (ay ri-spon-sis), 11. [Law Latin] See APOCRI SARIUS. argo abbr. ARGUENDO (2). argentarius (ahr-j;m-tair-ee-as), n. [Latin] Roman law. A moneylender; a banker. argentarius miles (ahr-jdn-tair-ee-as ml-leez), n. [Law Latin] His!. A money porter who carries money from the lower to the upper Exchequer to be examined and tested. argentum (ahr-jen-t<lm), n. [Latin] Silver; esp., silver coinage. argentum dei (ahr-jen-tam dee-I), n. [Law Latin) See DENARIUS DEI. arguendo (ahr-gyoo-en-doh). [Latin "in arguing"] (1817) 1. For the sake ofargument <assuming arguendo that discovery procedures were correctly followed, the court still cannot grant the defendant's motion to dismiss>. 2. During the course ofargument <counsel mentioned arguendo that the case has been followed in three other decisions>. -Abbr. argo arguer. One who makes an oral argument; esp., an attorney, often one ofseveral attorneys representing the same client, who presents an oral argument in court. argument. (14c) 1. A statement that attempts to persuade; esp., the remarks ofcounsel in analyzing and pointing out or repudiating a desired inference, for the assis tance of a decision-maker. 2. The act or process of attempting to persuade. See ORAL ARGUMENT; CLOSING ARGUMENT. "[W]e may define ... an argument as a course of reasoning which firmly establishes a matter about which there is some doubt." Cicero, De Inventione; De Optimo Genere Oratorum; Topica 387 (H.M. Hubbell trans. 1949) (repr. 2006). argumentative, adj. (lSc) 1. Ofor relating to argument or persuasion <an argumentative tone of voice>. 2. 122 argumentative instruction Expressing not only facts, but also inferences and conclusions drawn from facts <the judge sustained the prosecutor's objection to the argumentative question>. argumentative instruction. See JURY INSTRUCTION. argumentative pleading. See PLEADING (1). argumentative question. A question in which the examiner interposes a viewpoint under the guise of asking a question. This is considered an abuse of interrogation. [Cases: Witnesses ~236.] argumentum (ahr-gyoo-men-t<lm), n. [Latin] An argument. PI. argumenta. argumentum ab auctoritate (ahr-gyoo-men-t<lmab awk-tor-<l-tay-tee). [Latin] An argument from author ity (of a statute or case). argumentum ab impossibili (ahr-gyoo-men-t<lmab im-pah-sib-<:>-lr). [Latin] An argument from impos sibility. argumentum ab inconvenienti (ahr-gyoo-men-t<:>m ab in-bn-vee-nee-en-tr). (Latin] An argument from inconvenience; an argument that emphasizes the harmful consequences offailing to follow the position advocated. argumentum a contrario (ahr-gyoo-men-t<:>m ay bn trair-ee-oh). [Latin] An argument for contrary treat ment. argumentum ad baculum (ahr-gyoo-men-t<:>m ad bak y<:>-l<:>m). [Latin] An argument depending on physical force to back it up. argumentum ad captandum (ahr-gyoo-men-t<:>m ad kap-tan-d<lm). [Latin] An argument appealing to the emotions ofa crowd. argumentum ad crumenam (ahr-gyoo-men-t<lm ad kroo-mee-n<:>m). [fro Latin crumena "purse"] An argument appealing to the purse (or one's desire to save money). argumentum ad hominem (ahr-gyoo-men-t<:>m ad hom-<:>-n<:>m or -nem). [Latin "argument to the man"] An argument based on disparagement or praise of another in a way that obscures the real issue. argumentum ad ignorantiam (ahr-gyoo-men-t<:>mad ig-m-ran-shee-<:>m). [Latin] An argument based on an adversary's ignorance of the matter in dispute. argumentum ad invidiam (ahr-gyoo-men-tam ad in-vid-ee-<:>m). [Latin] An argument appealing to one's hatreds or prejudices. argumentum ad judicium (ahr-gyoo-men-t<lm ad joo dish-ee-dm). [Latin] An argument addressed to the judgment; a proofbased on knowledge or probabil ity. argumentum ad misericordiam (ahr-gyoo-men t<:>m ad miz-<l-ri-kor-dee-<:>m). [Latin] An argument appealing to pity. argumentum ad populum (ahr-gyoo-men

e-<:>m). [Latin] An argument appealing to pity. argumentum ad populum (ahr-gyoo-men-t<:>mad pop-y<l-l<lm). [Latin] An argument appealing to the crowd. argumentum ad rem (ahr-gyoo-men-t<lm ad rem). [Latin] An argument on the point at issue. argumentum ad verecundiam (ahr-gyoo-men-t<:>m ad ver-<:>-k;m-dee-<:>m). [Latin] An argument appealing to the listener's modesty; an argument based on the opinions ofpeople who are considered authorities. argumentum a simili (ahr-gyoo-men-t<lm ay sim-d-b). [Latin "argument from a like case"] An argument by analogy or similarity. argumentum baculinum (ahr-gyoo-men-tdm bak p-h-n<:>m). [fro Latin baculus "a rod or scepter"] An argument appealing to force. argumentum ex concesso (ahr-gyoo-men-t<:>m eks k<:>n-ses-oh). [Latin] An argument based on an earlier admission by the adversary. argumentum ex silentio (ahr-gyoo-men-tam eks si len-shee-oh). [Latin] An argument from silence i.e., based on the absence of express evidence to the contrary. arimanni (ar-d-man-r), n. [Law Latin] Hist. A fine for not joining the army when summoned. arise, vb. (bef. 12c) 1. To originate; to stem (from) <a federal claim arising under the U.S. Constitution>. 2. To result (from) <litigation routinely arises from such accidents>. 3. To emerge in one's consciousness; to come to one's attention <the question of appealabil ity then arose>. 4. (Of a court) to adjourn; to suspend sitting. arising-in jurisdiction. See JURISDICTION. aristocracy. 1. A privileged class of persons, esp. the hereditary nobility. 2. A government ruled by a privi leged class. aristodemocracy. A government consisting of both democratic and aristocratic elements; a government in which power is divided between the nobility (or more powerful group) and the rest ofthe people. Arkansas rule. Secured transactions. 1he principle that the collateral securing a loan is presumed to be worth at least as much as the loan's balance, and that the creditor has the burden to prove that a sale of the collateral would not satisfy the loan amount. Norton v. National Bank ofCommerce, 398 S.w.2d 538 (Ark. 1966). [Cases: Secured Transactions 0::>229, 240.] ARM. abbr. See adjustable-rate mortgage under MORTGAGE. arma (ahr-m<l), n. pl. [Latin] Roman law. 1. Arms; weapons. 2. Military service. arma moluta (ahr-md m<l-loo-t<:. [Law Latin] Sharp weapons that cut, as contrasted with blunt instru ments that bruise or break. arma reversata (ahr-m<:> ree-v<:>r-say-t<:. [Law Latin] Reversed arms. This was a punishment for a felon or traitor. 123 armaria. See ALMARIA. armata vis (ahr-may-ta vis). See VIS ARMATA. armed, ad). 1. Equipped with a weapon <an armed robber>. 2. Involving the use of a weapon <armed robbery>. armed conflict. Int'llaw. 1. A state of open hostil ity between two nations, or between a nation and an aggressive force . A state of armed contlict may exist without a formal declaration of war by either side. 2. A military action taken under Article 42 of the United Nations Charter. -Also termed police action. armed neutrality. See NEUTRALITY. armed peace. See PEACE. armed robbery. See ROBBERY. Armed Services Board of Contract Appeals. A quasi judicial board that reviews appeals from final decisions of contracting officers involving disputes relating to contracts made by elements of the Department of Defense and designated civilian agencies . Its deci sions are subject to judicial review. -Abbr. ASBCA. [Cases: United States C='73(15).] armiger (ahr-ma-jar), n. [Latin fro arma "arms" +gerere "to bear"] Rist. 1. One who bears arms; an armor bearer; an esquire. 2. A servant who carried the armor of a knight. 3. A tenant by scutage; a valet. arm-in-arm, adj. (2000) Of, relating to, or involving a transaction between parties whose personal interests are involved. Cf. ARM'S-LENGTH. armiscara (ahr-ma-skair-a), n. [Law Latin] Hist. 1. A punishment consisting of carrying a saddle on one's back as a sign ofsubjection. 2. A fine. armistice. See TRUCE. arm ofthe court. An officer of the court who performs tasks or duties related to the court's functions. [Cases: . Courts C=~55.1 arm ofthe sea. The portion of a river or bay in which the tide ebbs and flows. It may extend as far into the interior as the water of the river is propelled backward by the tide. [Cases: Navigable Waters C':'1(4).] arm ofthe state. (1953) An entity created by a state and operating as an alter ego or instrumentality of the state, such as a state university or a state department of transportation . The lIth Amendment of the U.S. Constitution generally bars suits in federal court by individuals against states. The Amendment has been interpreted as protecting arms of the state as well as the state itself. Cities and local school districts have been held not to be arms of the state. [Cases: Federal Courts (::::c269, 270.1 arms, law of. 1. Rules concerning conditions of war, such as the treatment of prisoners. 2. The law relating to the right to bear arms. [Cases: Weapons (;C:,1.] 3. The law relating to armorial bearings, i.e., coats of arms granted by the College ofHeralds in England, Lord Lyon King of Arms in Scotland, and corresponding officers in some other countries. array arms, right to bear. See RIGHT TO BEAR ARMS. arms control. Int'llaw. A policy of minimizing insta bilities in the military field by lessening the possibil ity of the outbreak of war while redUcing in number a country's weapons of mass destruction. Cf. DISARMA MENT. arm's-length, adj. Ofor relating to dealings between two parties who are not related or not on close terms and who are presumed to have roughly equal bargaining power; not involving a confidential relationship <an arm's-length transaction does not create fidUciary duties between the parties>. Cf. ARM-IN-ARM. [Cases: Contracts 1; Fraud arm's-length price. See PRICE. arm's-length transaction. See TRANSACTION. army. 1. A military force, esp. of ground troops. [Cases: Armed Services C':'4.] 2. Any substantial group of individuals armed for combat. 3. A vast, organized group. regular army. The permanent military establishment, maintained during both war and peacetime. arra (ar-d), n. [Latin "earnest, deposit"] Roman & civil law. Earnest money; money given as evidence of a com pleted bargain. See DE:;rARIUS DEL Cf. GOD'S PENNY. Also spelled arrha. PI. arrae. arraignment, n. (16c) The initial step in a criminal pros ecution whereby the defendant is brought before the court to hear the charges and to enter a plea. Fed. R. Crim. P. 10. Cf. PRELIMINARY HEARING; initial appear ance under APPEARANCE. [Cases: Criminal Law G~ 261-264.] arraign, vb. arrangement in order of breadth. Patents. The place ment of claims in a patent application in order ofscope so that the first claim in the application or patent is the broadest and later claims are progressively narrower. [Cases: Patents <:;:::>98.] arrangements committee. See COMMITTEE. arrangement with creditors. Bankruptcy. A debtor's agreement with creditors for the settlement, satisfac tion, or extension of time for payment of debts. See BANKRUPTCY PLAN. [Cases: BankruptcyG-'-::>3661.100 3661.115.] arranger for disposal. Envirollmentallaw. An entity that owns or possesses hazardous substances, and either disposes ofthem or has an obligation to control them. An arranger for disposal can be held liable for envi ronmental cleanup costs under CERCLA. [Cases: Envi ronmental Law C':'445(l).] array, n. (14c) 1. A panel of potential jurors; VENIRE (1) <the array of mostly wealthy professionals seemed to favor the corporate defendant>. [Cases: Jury 66, 114.] 2. The jurors actually empaneled <the array hearing the case consisted of seven women and five men>. 3. A list or roster of empaneled jurors <the plaintiff obtained a copy of the array to help prepare for voir dire>. [Cases: Jury (;::>69.] 4. Order; arrange ment <the array of jurors from oldest to youngest>. 5. 124 array A militia <the array organized antigovernment rallies>. 6. A series of statistics or a group ofelements <a math ematical array>. array, vb. (16c) 1. To empanel a jury for trial. 2. To call out the names ofjurors, one by one, as they are empan eled. arrear, n. (usu. pl.) (l7c) 1. The state ofbeing behind in the payment ofa debt or the discharge ofan obligation <the creditor filed alawsuit against the debtor who was in arrears>. Also termed arrearage. 2. An unpaid or overdue debt <the creditor reached an agreement with the debtor on settling the arrears>. 3. An unfinished duty <the arrears of work have accumulated>. See IN ARREARS. arrearage. 1. See ARREAR (l). 2. An unpaid dividend from a past period that is due to a holder of preferred stock. See cumulative dividend under DIVIDEND. arrent (il-rent), vb. Hist. To let at a fixed rent; specif., to give royal permission to enclose (a portion of public land) in exchange for annual rent. arrest, n. (14c) 1. A seizure or forcible restraint. 2. 1he taking or keeping of a person in custody by legal author ity, esp. in response to a criminal charge; specif., the apprehension of someone for the purpose of securing the administration of the law, esp. of bringing that person before a court.] arrest, vb. [Cases: Arrest C=>68(3).] "The question of what constitutes an arrest is a difficult one. On one end of the spectrum, it seems apparent that detention accompanied by handcuffing, drawn guns, or words to the effect that one is under arrest qualifies as an 'arrest' and thus requires probable cause. At the other end, a simple questioning on the street will often not rise to the level of an arrest. Somewhere in between lie investigative detentions at the stationhouse ...." Charles H. Whitebread, Criminal Procedure 3.02, at 61 (1980). arrest by warrant. See lawful arrest under ARREST. arrest in execution. See arrest on final process. arrest in quarters. Military law. A nonjudicial punish ment that can be given to officers and warrant officers only by a general, a flag officer in command, or an officer exercising general court-martial jurisdiction. See BREACH OF ARREST. [Cases: Military Justice arrest on final process. Hist. Arrest in a civil case after the conclusion of a trial. -Also termed arrest in execution. arrest on mesne process (meen). Hist. Arrest in a civil case before trial takes place. citizen's arrest. (1941) An arrest ofa private person by another private person on grounds that (1) a public offense was committed in the arrester's presence, or (2) the arrester has reasonable cause to believe that the arrestee has committed a felony. [Cases: Arrest {"'>64.] civil arrest. Hist. An arrest and detention ofa civil-suit defendant until bail is posted or a judgment is paid . Civil arrest is prohibited in most states. dragnet arrest. A sweeping arrest of people suspected ofpossible involvement in criminal activity or a civil disturbance . This type of arrest is illegal because it is based not on probable cause but on unsupported suspicion or belief. Also termed round-up; whole sale arrest. [Cases; Arrest C=>63.4(17).] false arrest. (lSc) An arrest made without proper legal authority. Cf. FALSE IMPRISONMENT. house arrest. See HOUSE ARREST. lawful arrest. (ISc) The taking of a person into legal custody either under a valid warrant or on probable cause that the person has committed a crime. -Also termed arrest by warrant; warrant arrest. Cf. unlawful arrest. malicious arrest. (18c) An arrest made without probable cause and for an improper purpose; esp., an abuse of process by which a person procures the arrest (and often the imprisonment) of another by means of judicial process, without any reasonable cause. Malicious arrest can be grounds for an action for abuse of

means of judicial process, without any reasonable cause. Malicious arrest can be grounds for an action for abuse ofprocess, false imprisonment, or malicious prosecution. material-witness arrest. An arrest of a witness to a crime for the purpose ofindUcing the witness to talk to police . lbis type of arrest requires a warrant based on probable cause. [Cases: Witnesses parol arrest (pa-rohl or par-ill). (1904) An arrest ordered by a judge or magistrate from the bench, without written complaint, and executed immedi ately, such as an arrest of a person who breaches the peace in open court. See CONTEMPT. pretextual arrest. (1968) An arrest of a person for a minor offense to create an opportunity to investigate the person's involvement in a more serious offense for which there is no lawful ground to make an arrest. Also termed pretext arrest. rearrest. A warrantless arrest of a person who has escaped from custody, violated parole or probation, or failed to appear in court as ordered. subterfuge arrest. An arrest of a suspect for the stated purpose of obtaining evidence of one crime but with the underlying intent to search the suspect for evidence of a different crime. [Cases: Arrest C=> 63.4(1).] unlawful arrest. The taking of a person into custody either without a valid warrant or without probable cause to believe that the person has committed a crime. Cf. lawful arrest. [Cases: Arrest C=>63.4(0.5), 65.] warranted arrest. (1950) An arrest made under author ity of a warrant. [Cases: Arrest (;::::)65.] warrantless arrest. (l958) A legal arrest, without a warrant, based on probable cause of a felony, or for a misdemeanor committed in a police officer's presence. -Also termed arrest without a warrant. See WARRANT. [Cases: ArrestC=>62.] wholesale arrest. See dragnet arrest. 125 3. lvIaritime law. The taking of a ship and sometimes its cargo into custody by virtue of a court's warrant. [Cases: Admiralty <::;:=>48.) arrestable offense. See OFFENSE (1). arrestandis bonis ne dissipentur. See DE ARREST ANDIS BONIS NE DISSIPENTUR. arrestando ipsum qui pecuniam recepit. See DE ARRE STANDO IPSUM QUI PECUNIAM RECEPIT. arrestatio (ar-a-stay-shee-oh), n. [Law Latin) Hist. An arrest. arrest by warrant. See lawful arrest under ARREST. arrestee. (1844) 1. A person who has been taken into custody by legal authority; a person who has been arrested. 2. Scots law. One who holds property attached by arrestment. arrester. One who arrests. -Also spelled arrestor. arrest in execution. See arrest on final process under ARREST. arrest in quarters. See ARREST. arrestment. 1. 'The arrest of a person or of personal effects. 2. Scots law. The taking or attachment of property belonging to another person but in the pos session of a third party, either to obtain security or to found jurisdiction. -'The process of attachment is similar to garnishment: the property holder is ordered to withhold the property from the debtor. The court may order that the property be transferred to the creditor. arrestment in execution. Post judgment arrestment to preserve property on which to collect the judgment. arrestment in security. See arrestment on the depen dence. arrestment on the dependence. Prejudgment arrest ment to secure payment of a judgment against a debtor who is likely to leave the country to escape the creditor. -The arrestment may be ordered even though the creditor has not begun an action on the debt or an action is still pending. -Also termed arrestment in security. arrestment to found jurisdiction. Arrestment for the purpose of conferring legitimate legal authority on a court, esp. when the debtor is a foreigner who is not present in and does not own land in a given place. 3. The action of checking or stopping something. arresto facto super bonis mercatorum alienigenorum (<I-res-toh fak-toh s[y]oo-par boh-nis mClr-ka-tor-Clm ay-Iee-ee-m-ja-nor-am or al-ee-). [Latin "seizure of the goods of foreign merchants"] Hist. A writ to seize the goods of an alien, taken in recompense ofgoods taken from an English subject living abroad. arrest of inquest. A plea that a matter proposed for inquiry has already been investigated and should there fore not be reexamined. arrest ofjudgment. (17c) The staying ofa judgment after its entry; esp., a court's refusal to render or enforce a arriere vassal judgment because of a defect apparent from the record. At common law, courts have the power to arrest judgment for intrinsic causes appearing on the record, as when the verdict differs materially from the plead ings or when the case alleged in the pleadings is legally insufficient. Today, this type of defect must typically be objected to before trial or before judgment is entered, so that the motion in arrest ofjudgment has been largely superseded. -Also termed allocutus. [Cases: Criminal Law <::;:=>966-976; Federal Civil Procedure <::;:=>2571; Judgment <::;:=>259-269.] "An arrest ofjudgment [under common lawl was the techni cal term describing the act of a trial judge refusing to enter judgment on the verdict because of an error appearing on the face of the record that rendered the judgment invalid." United States V. Sisson, 399 U.S. 267, 280-81,90 S.Ct. 2117, 2125 (1970). arrest on final process. See ARREST. arrest on mesne process. See ARREST. arrest record. (1930) 1. A form completed by a police officer when a person is arrested. 2. A cumulative list of the instances when a person has been arrested. Also termed police blotter; (in sense 2) bench blotter; blotter; log. arrestum jurisdictionis fundandae causa (a-res-tam juur-is-dik-shee-oh-nis fun-dan-dee kaw-za). [Law Latin "an arrestment for the purpose offounding juris diction"] Scots law. An arrestment to bring a foreigner under the jurisdiction of Scottish courts . This type of arrestment originated in Dutch law. See JURISDIC TIONIS FUNDANDAE. arrest warrant. See WARRANT (1). arrest without a warrant. See warralltless arrest under ARREST. arret (ah-ret or -ray). [French] Civil law. 1. A judgment, sentence, or decree of a court with competent jurisdic tion. 2. A sovereign's decree. PI. arrets. arret de reglement (a-re da re-glCl-mahn), n. [French] Hist. Civil law. A decision issued by Parliament to establish a rule ofprocedure, civil law, or custom. arretted (Cl-ret-id), adj. [Law French) (Of an accused) brought before a judge and charged with a crime. arrha (ar-a). See ARRA. arrha sponsalitia (ar-ee spon-sa-lish-ee-a). [Latin] Roman law. A payment made to guarantee fulfillment of a promise to marry. arriage and carriage (ar-ij). Hist. Indefinite services formerly demandable from tenants, but prohibited by statute in the 18th century. arriere-ban (ah-ree-air-bahn or ar-ee-air-ban), n. [French] Hist. 1. A king's proclamation summoning vassals to military service. 2. The group of vassals so summoned. arriere fee. See arriere fee under FEE (2). arriere fief. See arriere fee under FEE. arriere vassal. See VASSAL. 126 arrogatio arrogatio. See ADROGATION. arrogation (ar-<l-gay-sh;m), n. (16c) 1. TI1e act ofclaiming or taking something without the right to do so <some commentators argue that limited military actions uni laterally ordered by the President are an arrogation of Congress's power to declare war>. 2. Roman & civil law. The adoption of an adult; specif., the adoption of a person sui juris, as a result of which the adoptee loses independence and comes within the paternal power (patria potestas) of the adopting father. [Cases: Adoption (;::'5.]- arrogate, vb. ARS. abbr. AGRICULTURAL RESEARCH SERVICE. arser in ie main (ahr-say an IJ man or an l<l man), n. [French "burning in the hand"] Hist. A punishment ofburning or branding the left thumb ofa lay offender who falsely claimed and was allowed the benefit of clergy, so that the offender would be distinguished ifhe tried to claim the benefit again. Also termed arsure en Ie main (ahr-soor awn IJ man or awn l<l man). arson, n. (17c) 1. At common law, the malicious burning of someone else's dwelling house or outhouse that is either appurtenant to the dwelling house or within the curtilage. [Cases: Arson <:;:=) L] "The thing that is burnt must be a 'house', but this word has a large meaning; already in 1220 we find the burning of a barn that was full of corn treated as a felony." 2 Frederick Pollock & Frederic William Maitland, History ofEnglish Law Before the Time of Edward 1492 (2d ed. 1899). "The burning of one's own dwelling to collect insurance did not constitute common-law arson. It was generally assumed in early England that one had the legal right to destroy his own property in any manner he chose." Denis Binder, "Arson: Legal Aspects," in 1 Encyclopedia ofCrime and Justice 80, 80 (Sanford H. Kadish ed., 1983). "At common law, arson is the wilful and malicious burning of the dwelling house of another. It may occur during the nighttime or the daytime, and it is an offense against the security of habitation or occupancy, rather than against ownership or property." 3 Charles E. Torcia, Wharton'S Criminal Law 334. at 324-25 (15th ed. 1995). 2. L;nder modern statutes, the intentional and wrongful burning of someone else's property (as to destroy a building) or one's own property (as to fraudulently collect insurance). See Model Penal Code 220.1(1). Also termed (in Latin) crimen incendii; (in sense 2) stat utory arson. Cf. HOUSEBURNING; CRIMINAL DAMAGE TO PROPERTY. "The term 'statutory arson' is employed to designate the entire area of statutory proscription which is analo gous to. but does not constitute, common-law arson. It is important to have mutually exclusive labels here not only for the reasons mentioned in the preceding section, but because some of the state statutes provide a penalty for arson without defining the word and hence adopt the common-law definition." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 287 (3d ed. 1982). "(1) Arson. A person is guilty of arson, a felony of the second degree, if he starts a fire or causes an explosion with the purpose of: (a) destroying a building or occupied structure of another; or (b) destroying or damaging any property, whether his own or another's, to collect insurance for such loss. It shall be an affirmative defense to prosecution under this paragraph that the actor's conduct did not recklessly endanger any building or occupied structure of another or place any other person in danger of death or bodily injury." Model Penal Code 220.1 (1997). aggravated arson. Arson accompanied by some aggra vating factor, as when the offender foresees or antici pates that one or more persons will be in or near the property being burned. [Cases: Arson 12.] arsonable, adj. (1902) (Of property) ofsuch a nature as to give rise to a charge of arson if maliciously burned <only real property, and not personal property, is arson able>. [Cases: Arson (;::'5.] arson clause. Insurance. An insurance-policy provi sion that excludes coverage of a loss due to fire if the insured intentionally started the fire. [Cases: Insurance (;::'2166(3).] arsonist. (1864) One who commits arson; INCENDIARY (1). arsonous, adj. Of, relating to, or involving arson <an arsonous purpose>. arsura (ahr-s[y]oor-a), n. [Law Latin] Hist. 1. The trial of money by heating it after it is coined. 2. The loss in weight from this process. arsure en la main (ahr-soor awn lah man), n. [Law French] See ARSER IN LE MAIN. ART. abbr: ASSISTED REPRODUCTIVE TECHNOLOGY. art. (Be) 1. Creative expression, or the product ofcreative expression. 2. An occupation or business that requires skill; a craft. 3. Patents. A field of useful endeavor; the methodical application ofknowledge or skill in creating something new. [Cases: Patents (;::':5.1 analogous art. Patents. A technique, product, applica tion, machine, or method that is reasonably related to the problem addressed by the invention, and with which the inventor is assumed to be familiar. Also termed pertinent

to the problem addressed by the invention, and with which the inventor is assumed to be familiar. Also termed pertinent art. See NONOBVIOUSNESS. [Cases: Patents (;=,16(3).] nuisance prior art. Patents. Information that appears to anticipate or obviate an invention, but does not actually do so because the earlier described invention was neither reduced to practice nor adequately dis closed in any documents . Nuisance prior art does not bar a patent's issuance, but it may prolong the prosecution. The term does not apply to efforts that are not prior art at all, such as descriptions of unsuc cessful attempts to reduce an invention to practice, or to writings that do not disclose real inventions or technology, such as science-fiction. [Cases: Patents 16(2).] pertinent art. 1. See analogous art. 2.See relevant art. prior art. Patents. Knowledge that is publicly known, used by others, or available on the date of invention to a person of ordinary skill in an art, including what would be obvious from that knowledge. Prior art includes (1) information in applications for previously patented inventions; (2) information that was pub lished more than one year before a patent application is filed; and (3) information in other patent applica tions and inventor's certificates filed more than a year 127 before the application is filed. The u.s. Patent and Trademark Office and courts analyze prior art before deciding the patentability ofa comparable invention. 35 USCA 102. [Cases: Patents ~16(2).] relevant art. Patents. Art to which one can reasonably be expected to look for a solution to the problem that a patented device tries to solve. -The term includes not only knowledge about a problem in a particular industry, but also knowledge accumulated in scien tific fields whose techniques have been commonly employed to solve similar problems. Also termed pertinent art. 4. Hist. In a seduction case, the skillful and systematic coaxing of another to engage in sexual activity. art and part, adj. & adv. English & Scots law. Aiding in or contributing to the commission ofa crime <the lookout was involved in the burglary on an art-and-part basis> <the baker acted art and part in the prisoner's escape by producing a cake with a file in it>. See ACCESSORY (2). art and part, n. Scots law. Participation in or encourage ment of a crime; criminal guilt by assisting, adviSing, or participating in the crime. Cf. OPE ET CO:-lSILIO. "Scots law never distinguished between degrees of partici pation in a crime, between what English law distinguished as accession before the fact, concomitant accession, and accession after the fact. In treason all participants were treated as principal offenders and indictments in other cases charged the accused as 'actor or art and part'. The Criminal Procedure (Scotland) Act 1887 made this an unnec essary but implied charge in all indictments." 6 David M. Walker, A Legal History ofScotland 397 (2001). artful pleading. See PLEADING (2). art group. Patents. A collection of art units in the U.S. Patent and Trademark Office, led by a group director. article, n. (13c) L Generally, a particular item or thing <article ofclothing>. proprietary article. (often pl.) A product manufactured under an exclusive right to sell it 2. A separate and distinct part (as a clause or stipula tion) of a writing, esp. in a contract, statute, or consti tution <Article III>. 3. (pl.) An instrument containing a set ofrules or stipulations <articles ofwar> <articles of incorporation>. 4. A nonfictional literary composi tion forming an independent part ofa publication, such as a law review or journal <a well-researched, timely article>. 5. Patents. A workpiece, product, or thing that is operated on, modified, or changed by a machine or process. 6. Patents. An article of manufacture. See MA:-IUFACTURE. 7. Eccles. law. In an ecclesiastical court, one of a plaintiff's complaints or charges against the defendant. The complaint or charge may be presented by oral declaration or by a written document. article, vb. 1. To bring charges against by an exhibition ofarticles. 2. To be an articled clerk. article of manufacture. See MA:-IUFACTURE. article of merchandise. 1. See MERCHANDISE (1). L See MERCHANDISE (2). articles of amendment Article I court. (1955) 1. See legislative court under COURT. 2. A type of federal legislative court that is not bound by the requirements of or protected under U.S. Const. art. III, 2, and that performs functions similar to those of an administrative agency, such as issuing advisory opinions. U.S. Const. art. I, 8. Cf. ARTICLE III COURT. [Cases: Federal Courts "Congress also has the power, within certain limits, to create what are called ... Article I tribunals .... These Article I tribunals are really akin to administrative agencies; that is, the 'judges' do not have any constitutionally guar anteed lifetime tenure and protection from salary diminu tion; they are not governed by the case or controversy limitation of Article Ill. .. At the present time, Article I courts include territorial courts, certain courts in the District of Columbia, courts martial, and legislative courts and administrative agencies that adjudicate 'public rights.'" John E. Nowak & Ronald D. Rotunda, Constitutional Law 22-23 (4th ed. 1991). Article I judge. (1958) A U.S. bankruptcy judge, magis trate judge, or administrative-law judge appointed for a term of years as authorized by Congress under Article I of the U.S. Constitution. 28 USCA 151 et seq., 631 et seq. [Cases: Bankruptcy ~2123; U.S. Magistrates ILl 2. A federal judge temporarily appointed by the President without prior Senate approval. The appointment power derives from the recess-appoint ment clause, which allows the President to appoint tem porary government officers while Congress is not in session. U.S. Const. art. II, 2, cl. 3. See recess appoint ment under APPOINTMENT (I). Article III court. (1949) A federal court that, deriving its jurisdiction from U.S. Const. art. III, 2, hears cases arising under the Constitution and the laws and treaties of the United States, cases in which the United States is a party, and cases between the states and between citizens of different states. -Also termed consti tutional court. Cf. ARTICLE I COURT. [Cases: Federal Courts Article III judge. (1937) A U.S. Supreme Court, Court of Appeals, or District Court judge appointed for life under Article III of the U.S. Constitution. [Cases: Judges~l.J Article 15. See nonjudicial punishment under PUNISH MENT. articled clerk. English law. A clerk who works for a solicitor in exchange for learning the profession; a clerk bound by articles of apprenticeship. article of manufacture. See MANUFACTURE. articles of agreement. A writing that records matters that the parties agreed on when forming a partnership or business or transferring real property. -Unlike a contract, articles of agreement usu. contain only agreements and not express promises ofperformance, e.g., "the parties agree that it isn't possible to guar antee delivery within 10 days." Articles of agreement often supplement a contract. They may be informal or detailed. [Cases: Partnership ~22.1 articles of amendment. (1891) A document filed to effectuate an amendment or change to a corporation's 128 articles of apprenticeship articles of incorporation. [Cases: Corporations 40.] articles ofapprenticeship. Hist. A contract under which a minor agrees to work for a master for a specified time in exchange for learning a trade. articles ofassociation. (17c) 1. ARTICLES OF INCORPORA TION. 2. A governing document similar to articles of incorporation that legally creates a non stock or non profit organization. -Often shortened (informally) to articles. Also termed articles oforganization. See gov erning document under DOCT:MENT (1). [Cases: Associa tions C:=>5; Corporations (;::::0 18.] Articles ofConfederation. The instrument that governed the association ofthe 13 original states from March 1, 1781 until the adoption of the U.S. Constitution (Sep tember 17, 1787). They were prepared by the Conti nental Congress, submitted to the states in 1777, and later ratified by representatives ofthe states empowered by their respective legislatures for that purpose. articles of dissolution. (1802) A document that a dis solving corporation must file with the appropriate gov ernmental agency, usu. the secretary ofstate, after the corporation has settled all its debts and distributed all its assets. [Cases: Corporations <610(1).] articles of impeachment. (17c) A formal document alleging the specific charges against a public official and the reasons for removing that official from office . It is similar to an indictment in a criminal proceeding. See IMPEACHMENT (1). [Cases: United States (;::::035.] articles ofincorporation. (18c) A governing document that sets forth the basic terms ofa corporation's exis tence, including the number and classes ofshares and the purposes and duration of the corporation . In most states, the articles of incorporation are filed with the secretary of state as part of the process of forming the corporation. In some states, the articles serve as a certificate ofincorporation and are the official recogni tion of the corporation's existence. In other states, the government issues a certificate of incorporation after approving the articles and other required documents. Often shortened (informally) to articles. Also termed articles ofassociation; articles oforganization; certificate ofincorporation. Cf. BYLAW (1); CHARTER. See govern ing document under DOCUMENT (1). [Cases: Corpora tions 18.] articles of organization. 1. See ARTICLES OF INCORPO RATION. 2. See ARTICLES OF ASSOCIATION (2). articles of partnership. See PARTNERSHIP AGREEMENT. Articles ofthe Clergy. Hist. A statute enacted in 1315 to settle the jurisdictions ofthe ecclesiastical and temporal courts. Also termed Articuli CIeri. articles ofthe eyre (air). Hist. A series of questions put to the members ofa community by the justices in eyre to discover what breaches ofthe law had occurred during the court's absence . The inquiry enabled the justices to fine criminal behavior and to raise revenue for the Crown through the levying ofpenalties. See EYRE. Cf. CHAPITER. -Also termed capitula itineris. articles of the peace. English law. A sworn complaint in which a person alleges that a named person poses a threat to the complainant's person, family, or property. Articles of Union. Hist. The 25 articles agreed to by the English and Scottish parliaments in 1707 for the union of the two kingdoms. articles ofwar. 1. The rules and regulations that govern the activities of an army and navy. 2. (cap.) The body oflaws and procedures that governed the U.S. military until replaced in 1951 by the Uniform Code ofMilitary Justice. articulated pleading. See PLEADING (1). articuli (ahr-tik-Yci-h), n. [Latin] Articles; items . 'Ihis term was applied to several English statutes and trea tises. Articuli Cieri (ahr-tik-p-h kleer-I). [Law Latin] See ARTICLES OF THE CLERGY. articuli magnae chartae (ahr-tik-Yci-h mag-nee kahr tee), n. [Latin] Hist. The 49 preliminary articles on which Magna Carta was founded. Articuli super Cartas (ahr-tik-p-ll s[y]OO-pcif kahr-tcis). [Law Latin "articles upon the charters"] Hist. A statute passed in 1300 to confirm and enlarge many particulars ofMagna Carta and the Forest Charter. articulo mortis. See IN ARTICULO MORTIS. artifice (ahr-tci-fis). A clever plan or idea, esp. one intended to deceive. artificer. 1. A skilled worker, such as a mechanic or craftsman; an artisan. 2. One who builds or contrives; an inventor. artificial, adj. 1. Existing only by virtue ofor in can sid eration ofthe law <artificial presumption > . This term is often used in reference to a company or a corpora tion. See artificial person under PERSON (3). 2. Made Of produced by a human or human intervention rather than by nature <artificial condition>. 3. Ofor relating to artifice <an artificial demeanor>. artificial condition. See CONDITION (5). artificial day. See DAY. artificial force. Patents. A natural force that is so trans formed in character or energies by human power as to become something new. artificial insemination. Family law. A process for achieving conception, whereby semen is inserted into a woman's vagina by some means other than inter course. If the woman is married when the artificial insemination and the birth occur, and her husband has consented to the insemination, and the insemination is performed by a licensed phYSician, the husband is con sidered the father of the child. Ifthe woman is unmar ried at the time of the insemination, several factors, varying from jurisdiction to jurisdiction, determine whether the donor is considered the father of

insemination, several factors, varying from jurisdiction to jurisdiction, determine whether the donor is considered the father ofthe child. 129 Cf. IN VITRO FERTILIZATION; GAMETE INTRAFALLO PIAN TRANSFER; ZYGOTE INTRAFALLOPIAN TRANSFER. [Cases: Child CustodyC=>274.5; Children Out-of-Wed lock C=> 15; Parent and Child (:=:;20.] artificial insemination by donor. Artificial insemi nation in which the semen donor is someone other than the recipient's husband. -Abbr. AID. -Also termed heterologous artificial insemination; exoga mous insemination. [Cases: Child CustodyC='274.5; Parent and Child C=>20.] artificial insemination by husband. Artificial insemi nation in which the semen donor is the recipient's husband. ~Abbr. AIH. -Also termed homologous insemination; endogenous insemination. [Cases: Child Custody C=>274.5; Parent and Child C:=>20.] endogenous insemination. See artificial insemination by husband. exogamous insemination. See artificial insemination by donor. heterologous artificial insemination. See artificial insemination by donor. homologous artificial insemination. See artificial insemination by husband. artificial person. See PERSON (3). artificial presumption. See presumption oflaw under PRESUMPTION. artificial succession. See SUCCESSION (4). artificial watercourse. See WATERCOURSE. artisan. 1. An artist; esp., a skilled crafter. 2. Patents. A person ofordinary skill in an art, for purposes ofdeter mining whether a patent application meets the enable ment requirement of 35 USCA 112. In patent-law terms, the disclosure in the application must teach the artisan how to practice the invention. -Also termed skilled artisan. artisan's lien. See mechanic's lien under LIEN. artistic license. See LICENSE. artistic work. See WORK (2). art unit. Patents. A group ofpatent examiners in the U.S. Patent and Trademark Office specializing in a particu lar field oftechnology . Each art unit is led by a senior patent examiner. a rubro ad nigrum (ay roo-broh ad DI-grdm). [Latin] From the red to the black i.e., from the title of a statute (formerly often printed in red letters) to its body (often printed in black letters). as (as), n. [Latin]l. Roman law. A pound weight or a coin weighing a pound, divisible into 12 parts, called unciae. As and the multiples ofits unciae were used to denote interest rates. See UNCIA. 2. Roman & civil law. A whole inheritance; the whole ofan asset. PI. asses. as-applied challenge. See CHALLENGE (1). ASBCA. abbr. See ARMED SERVICES BOARD OF CONTRACT APPEALS. asis ASCAP. abbr. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS. ascendant (d-sen-ddnt), n. (l7c) One who precedes in lineage, such as a parent or grandparent. -Also termed ancestor. Cf. DESCENDANT. ascendant, adj. collateral ascendant. (1832) Loosely, an aunt, uncle, or other relative who is not strictly an ancestor. -Also termed collateral ancestor. lineal ascendant. A blood relative in the direct line of ascent; ancestor . Parents, grandparents, and great grandparents are lineal ascendants. ascent. (l7c) The passing ofan estate upwards to an heir in the ascending line. Cf. DESCENT. ascripticius. See ADSCRIPTITIUS. ascriptitius (as-krip-tish-ee-ds), n. See ADSCRIPTITIUS. ascriptus. See ADSCRIPTUS. ASE. abbr. AMERICAN STOCK EXCHANGE. as eft'eirs. See EFFEIRS, AS. as-extracted collateral. See COLLATERAL. asexualization. See STERILIZATION. asexually reproducing plant. Patents. A plant that repro duces other than by seeds. Examples ofasexual repro duction include cutting, grafting, and budding. Only new, distinctive, and nonobvious species of asexually reproducing plants may be protected under the Plant Patent Act. 35 USCA 161. [Cases: Patents (:=) 14.] ASFA. abbr. ADOPTION AND SAFE FAMILIES ACT. Ashwander rules. (1953) A set ofprinciples outlining the U.S. Supreme Court's policy ofdeciding constitutional questions only when necessary, and ofaVOiding a con stitutional question if the case can be decided on the basis of another issue . These rules were outlined in Justice Brandeis's concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466 (1936). They include the policy that the court should not decide a constitutional question in a friendly suit, should not anticipate a question of constitutional law, should not create a rule of constitutional law that is broader than that called for by the facts of the case, should not decide a constitutional issue if the case can be decided on another ground, should not rule on the constitutionality ofa statute unless the plaintiff is harmed by the statute or if the plaintiff has accepted the benefits of the statute, and should not rule on the constitutionality of an act of Congress without first analyzing whether the act can be fairly construed in a way that would avoid the constitutional question. Also termed Brandeis rules. [Cases: Constitutional Law C:=>975, 976, 994.] as is, adv. & adj. In the existing condition without modi fication <the customer bought the car as is>. L'nder UCC 2-316(3)(a), a seller can disclaim all implied war ranties by stating that the goods are being sold "as is" or "with all faults." Generally, a sale ofproperty "as is" means that the property is sold in its existing condi tion, and use ofthe phrase as is relieves the seller from liability for defects in that condition. Also termed with allfaults. [Cases: Contracts C=205.30; Sales 267.] as-is warranty. See WARRANTY (2). asked price. See PRICE. asking price. See PRICE. as of right. By virtue of a legal entitlement <the case is not one triable to a jury as of right>. ASP. abbr. APPLICATION SERVICE PROVIDER. as per. (I8c) In accordance with; PER (3). This phrase has traditionally been considered a barbarism, per being the preferred form in commercialese <per your request>. But even per can be improved on <as you requested>. aspirin wars. Slang. A series offalse-advertising lawsuits between makers of over-the-counter pain relievers in the 19805, all centering on the boundaries ofcompara tive advertiSing. asportation (as-p;lr-tay-sh;ln), n. (lSc) The act of carrying away or removing (property or a person) . Asporta tion is a necessary element oflarceny. Also termed carrying away. See LARCENY. [Cases: Kidnapping 17; Larceny C= 17; Robbery C::; 10.] asport, vb. asportative, adj. ''There is no larceny unless the personal goods of another which have been taken by trespass are 'carried away,' but this technical requirement may be satisfied by a very slight movement. There must be 'asportation,' to use the word commonly found in the early cases, but the slightest start of the carryingaway movement constitutes asportation." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 323 (3d ed.1982). 'To constitute larceny, there must be a taking or caption and carrying away or asportation of the property of another. There is a caption when the defendant takes possession. He takes possession when he exercises dominion and control over the property. There is an asportation when he carries away the property; any carrying away movement, however slight, is sufficient. An asportation presupposes a prior caption; therefore, there can be no asportation unless there has first been a caption." 3 Charles E. Torcia, Whar ton's Criminal Law 357, at 412-13 (15th ed. 1995). asportavit (as-por-tay-vit). [Law Latin] He carried away. ASR. abbr. ACCOUNTING SERIES RELEASE. assailant. (16c) 1. One who physically attacks another; one who commits an assault. [Cases: Assault and Battery C=-48.] 2. One who attacks another using nonphysical means; esp., one who attacks another's position or feelings, as by criticism, argument, or abusive language. assart. Rist. 1. The act ofpulling up trees and bushes in a forest to make the land arable . 'This was a crime if done without a license. 2. A piece ofland made arable by dearing a forest. assassination, n. (17c) The act of deliberately killing someone, esp. a public figure, usu. for hire or for politi cal reasons. -assassinate, vb. assassin, n, assault, n. (14c) 1. Criminal & tort law. The threat or use offorce on another that causes that person to have a rea sonable apprehension of imminent harmful or offensive contact; the act of putting another person in reason able fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery. [Cases: Assault and Battery 48.] 2. Criminal law. An attempt to commit battery, requiring the specific intent to cause physical injury. Also termed (in senses 1 and 2) simple assault; common assault. 3. Loosely, a battery. 4. Popularly, any attack. Cf. BATTERY. assault, vb. assaultive, adj. "Ordinary usage creates a certain difficulty in pinning down the meaning of 'assault.' Etymologically, the word is com pounded of the Latin ad + saltare, to jump at. In popular language, it has always connoted a physical attack. When we say that D assaults V, we have a mental picture of D attacking V, by striking or pushing or stabbing him. In the middle ages, however, the terms 'assault' and 'battery' were given technical meanings which they have retained ever since. It became settled that though an assault could be committed by physical contact, it did not require this, since a show of force raising an apprehension in the mind of the victim was sufficient. Also, a 'battery' did not require an actual beating; the use of any degree of force against the body would suffice. The acts of spitting on a person and kissing Without consent are both batteries." Glanville Williams, Textbook ofCriminal Law 135-36 (1978). "In addition to the classic definitions of assault, some juris dictions have used assault as a generic term to describe either assault or battery. Thus, a defendant who intention ally injures somebody may be convicted of assault rather than battery." Arnold H. Loewy, Criminal Law in a Nutshell 57 (2d ed. 1987). aggravated assault. (l8c) Criminal assault accompa nied by circumstances that make it more severe, such as the intent to commit another crime or the intent to cause serious bodily injury, esp. by using a deadly weapon. See Model Penal Code 211.1(2). [Cases: Assault and Battery "The common law did not include any offense known as 'aggravated assault: However, it did make provision for certain situations in this field, under other names. If, for example, the intended application of force to the person would have resulted In murder, mayhem, rape or robbery, if successful, and the scheme proceeded far enough to constitute an attempt the prosecution was for an attempt to commit the intended felony." Rollin M. Perkins &Ronald N. Boyce, Criminal Law 180 (3d ed. 1982). assault by contact. The offense of knowingly or inten tionally touching another person when the actor knows or believes that the touch will offend or provoke the other person. assault purpense (;l-sawlt poor-pawn-say). [French] Hist. Premeditated assault. -Also termed assultus premeditatus (J-Sal-t;ls pree-med-J-tay-tis). "Even before the conquest, ... deliberately planned assas sinations came to be distinguished and put into the list of Crown pleas as forsteal. The original sense of this word was lying in wait to am bush the victi m. After the conquest this is expressed in various terms in French and Latin, but frequently takes the form of assault purpense, or assultus premeditatus. In time this yields before malitia excogi tata, and so introduces us to the very troublesome word 'malice'." Theodore F.T. Plucknett, A Concise History of the Common Law444 (5th ed. 1956). 131 assault to rape. See assault with intent to commit rape. assault with a dangerous weapon. See assault with a deadly weapon. assault with a deadly weapon. (1803) An aggra vated assault in which the defendant, using a deadly weapon, threatens the victim with death or serious bodily injury. Also termed assault with a dangerous weapon. [Cases: Assault and Battery C:=> 56.] assault with intent. (17c) Any of several assaults that are carried out with

y C:=> 56.] assault with intent. (17c) Any of several assaults that are carried out with an additional criminal purpose in mind, such as assault with intent to murder, assault with intent to rob, assault with intent to rape, and assault with intent to inflict great bodily injury. These are modern statutory inventions that are often found in state criminal codes. [Cases: Homicide 725; Rape 16; Robbery C:=> 13.] assault with intent to commit rape. An assault carried out with the additional criminal purpose of raping the victim. -Also termed assault to rape. [Cases: Rape C:=> 16.] atrocious assault. An assault that causes severe wounding or maiming. [Cases: Assault and Battery attempted assault. (1870) An attempt to commit an assault; an attempted battery that has not progressed far enough to be an assault, as when a person intends to harm someone physically but is captured while or after trying to locate the intended victim in his or her place ofemployment. -Traditionally, most commen tators held that an attempted assault could not exist because assault was in itself an attempt to commit a crime. Many modern authorities, however, assert that an attempted assault can occur, and that it should be punishable. Also termed attempt to assault. See ATTEMPT TO ATTEMPT. [Cases: Assault and Battery <>:::>61.) "[I]t is apparent that reference may be made to an 'attempt to assault' without logical absurdity. There is nothing absurd in referring to an attempt to frighten, which would constitute, if successful, a criminal assault in most juris dictions.... It is not surprising, therefore, that there is a tendency to break away from the ancient view that there is no such offense known to the law as an attempt to commit an assault." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 168 (3d ed. 1982). "By far the most interesting cases in this area are the attempted assault cases. Where assault is defined as intentionally putting another in fear of a battery, there is ofcourse no basis for denying the possibility ofan attempt. Where, however, assault is defined as an attempted battery, attempted assault looks very much like the forbidden 'attempt to attempt' a battery. For this reason some courts have held that there is no such crime as attempted assault. Other courts, however, have held that an attempted assault can exist, defining it as an attempted battery which has not progressed far enough to be an assault." Arnold H. Loewy, Criminal Law in a Nutshell 223-24 (2d ed. 1987). civil assault. (1892) An assault considered as a tort and not as a crime. _ Although the same assaultive conduct can be both a tort and a crime, this term assault and battery isolates the legal elements that give rise to civilliabil ity. [Cases: Assault and Battery C:=>2.] conditional assault. (1971) An assault expressing a threat on condition, such as "your money or your life." criminal assault. (1835) An assault considered as a crime and not as a tort. _ This term isolates the legal elements that give rise to criminal liability even though the act might also have been tortious. [Cases: Assault and Battery C:=>48.] excusable assault. An assault committed by accident or while doing a lawful act by lawful means, with ordinary caution and without any unlawful intent. felonious assault. An assault that is ofsufficient severity to be classified and punished as a felony. See aggra vated assault; assault with a deadly weapon. [Cases: Assault and Battery C:=>60.] indecent assault. See sexual assault (2). indecent assault by contact. See sexual assault (2) indecent assault by exposure. See INDECENT EXPOSURE. intoxication assault. An assault that occurs when an inebriated person causes bodily injury to another person. [Cases: Automobiles C:=> 347.J malicious assault with a deadly weapon. An aggra vated assault in which the victim is threatened with death or serious bodily harm from the defendant's use of a deadly weapon. -Malice is inferred from both the nature of the assault and the weapon used. [Cases: Assault and Battery C:=>56.] sexual assault. (1880) 1. Sexual intercourse with another person who does not consent. -Several state statutes have abolished the crime ofrape and replaced itwith the offense ofsexual assault. [Cases: Rape 1.] 2. Offensive sexual contact with another person, exclusive ofrape. -The Model Penal Code lists eight circumstances under which sexual contact results in an assault, as when the offender knows that the victim is mentally incapable ofappreciating the nature of the conduct, either because ofa mental disease or defect or because the offender has drugged the victim to prevent resistance. Model Penal Code 213.4. -Also termed (in sense 2) indecent assault; sexual assault by contact; indecent assault by contact. Cf. RAPE. [Cases: Assault and BatteryC~59.] sexual assault by contact. See sexual assault (2). simple assault. I. See ASSAULT (1). 2. See ASSAULT (2). "(1) Simple Assault. A person is guilty of assault if he: (a) attempts to cause or purposely, knowingly or reck lessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon; or (c) attempts by physical menace to put another in fear of imminent serious bodily injury." Model Penal Code 211.1 (1997). assault and battery. (16c) Loosely, a criminal battery. See BATTERY. "Although the term assault and battery is frequently used when a battery has been committed, one who commits a battery cannot also be punished for committing an assault, since the lesser offense of assault blends into the actual battery." Paul Marcus, "Assault and Battery," in I Encyclo pedia ofCrime and Justice 88, 88 (Sanford H. Kadish ed.. 1983). assault by contact. See ASSAULT. assaultee. A person who is assaulted. assaulter. A person who assaults another. assault with a dangerous weapon. See assault with a deadly weapon under ASSAULT. assault with a deadly weapon. See ASSAULT. assay, n. 1. A proofor tria\, by chemical experiments, of the purity of metals, esp. gold and silver. 2. An exami nation ofweights and measures. assayator regis. See ASSAYER OF THE KING. as sayer. One who makes assays of precious metals. assayer of the king. Hist. An officer of the royal mint, appointed by St. 2 Hen. 6, ch. 12, who receives and tests bullion taken in for coining. -Also termed assayator regis. assecurare (a-sek-ya-rair-ee), vb. [Law Latin] Hist. To make secure, as by pledges. assecuration (a-sek-ya-ray-shan). Marine insurance. Insurance. assecurator (a-sek-ya-ray-tar), Marine insurance. An insurer. assembly. (14c) 1. A group ofpersons organized and united for some common purpose. delegate assembly. See CONVENTION (4). deliberative assembly. Parliamentary law. A body that transacts business according to parliamentary law. A deliberative assembly typically has several distin gUishing characteristics: (1) it is a group ofpeople who meet to propose, discuss, and possibly vote on courses of action to be undertaken in the group's name; (2) participants are free to use their own judgment; (3) enough people participate so that a certain degree offormality in the proceedings is desirable; (4) each participant has one vote and may dissent without fear of expulsion; and (5) when some members are absent, the members actually present have the authority to act for the entire group (subject to quorum and other requirements). See Henry M. Robert, Robert's Rules of Order Newly Revised 1, at 2 (lOth ed. 2000). ordinary assembly. Parliamentary law. A deliberative assembly other than a legislative body. riotous assembly. Hist. An unlawful assemblage of 12 or more persons causing a disturbance of the peace. See RIOT. [Cases: Riot C=c 1.] unlawful assembly. (16c) A meeting of three or more persons who intend either to commit a violent crime or to carry out some act, lawful or unlawful, that will constitute a breach of the peace. Cf. RIOT. [Cases: Unlawful Assembly "In order that the assembly may be 'unlawful,' it is not necessary that the object of the meeting should itself be illegal. The test is, not the illegality of the purpose for which the persons are met, but the danger to the peace which their meeting involves. The mere fact, therefore, that the purpose is unlawful is not enough; it must be shown that it involves reasonable apprehension of a breach of the peace. Thus, if a number of persons meet to plan a fraud, they may be guilty of a conspiracy, but their meeting is not an unlawful assembly." 4 Stephen's Commentaries on the Laws of England 135-36 (L. Crispin Warmington ed., 21sted.1950). "An unlawful assembly differs from a riot in that if the parties assemble in a tumultuous manner, and actually execute their purpose with violence, it is a riot; but if they merely meet on a purpose, which, if executed, would make them rioters, and, having done nothing, they separate without carrying their purpose into effect, It is an unlawful assembly." 77 c.JS. Riot; Insurrection 2, at 565 (1994). 2. In many states, the lower house of a legislature. 3. Parliamentary law. CONVENTION (4). 4. Patents. In a patent claim, a collection ofparts used to form a struc ture. assembly, right of. See RIGHT OF ASSEMBLY. assensio mentium (a-sen-see-oh men-shee-am). [Latin "assent of minds"] See MEETING OF THE MINDS. assent, n. (14c) Agreement, approval, or permission; esp., verbal or nonverbal conduct reasonably interpreted as willingness. See CONSENT. assent, vb. "The requirement of 'assent,' which is fundamental to the formation of a binding contract, implies in a general way that both parties to an exchange shall have a reasonably clear conception of what they are getting and what they are giving up." Marvin A. Chirelstein, Concepts and Case Analysis in the Law ofContracts 66 (l 990). actual assent. Assent given by words or conduct intended to express willingness. apparent assent. Assent given by language or conduct that, while not necessarily intended to express will ingness, would be understood by a reasonable person to be so intended and is actually so understood. constructive assent. (1811) Assent imputed to someone based on conduct. express assent. (16c) Assent dearly and unmistakably communicated. implied assent. (18c) Assent inferred from one's conduct rather than from direct expression. mutual assent. (17c) Agreement by both parties to a contract, llSU. in the form of offer and acceptance. In modern contract law, mutual assent is determined by an objective standard -that is, by the apparent intention ofthe parties as manifested by their actions. Cf. MEETING OF THE MINDS. lCases: Contracts C=c IS.] assented stock. See STOCK. assenting-silence doctrine. (1976) The principle that an accusation will be taken as true, despite silence by the accused, if the accusation was made under cir cumstances in which silence can be fairly said to be an agreement. _ This doctrine is usu. held to be invalid as a measure of a criminal defendant's guilt. [Cases: Criminal Law C=c407.] 133 assert, vb. 1. To state positively. 2. To invoke or enforce a legal right. -assertory, assertive, adj. -assertor, n. assertion, n. (I5c) 1. A declaration or allegation. 2. A person's speaking, writing, acting, or failing to act with the intent of expressing a fact or opinion; the act or an instance of engaging in communicative behavior. See assertive conduct under CONDUCT. -assert, vb. assertor, n. assertive conduct. See CONDUCT. assertive question. Civil law. A question asked of a witness at a criminal trial, by which inadmis sible evidence is sought, to provide the jury with details regarding another crime. Cf. INTERROGATIVE QUESTION. assertory covenant. See COVENANT (1). assertory oath. See OATH. assessable insurance. 1. See INSURANCE. 2. See assess able policy (1) under INSURANCE POLlCY. assessable policy. 1. See INSURANCE POLlCY. 2. See assessable insurance (1) under INSURANCE. assessable security. See SECURITY. assessable stock. See STOCK. assessed valuation. See VALUATIOK. assessed value. See VALUE (2). assessee (as-;l-see), n. A person against whom a payment is assessed. assessment, n. (16c) 1. Determination of the rate or amount of something, such as a tax or damages <assessment of the losses covered by insurance>. [Cases: Damages C='95-126; Internal Revenue <>::> 4520; Taxation (>:>2428, 2512-2527.] 2. Imposition of something, such as a tax or fine, according to an established rate; the tax or fine so imposed <assess ment of a luxury tax>. [Cases: Internal Revenue .4520; Taxation (

imposed <assess ment of a luxury tax>. [Cases: Internal Revenue .4520; Taxation (>::>2428, 2512-2527.] "There is a distinction between public improvements, which benefit the entire community, and local improve ments, which benefit particular real estate or limited areas of land. The latter improvements are usually financed by means of special, or local, assessments. These assessments are, in a certain sense, taxes. But an assessment differs from a general tax in that an assessment is levied only on property in the immediate vicinity of some local municipal improvement and is valid only where the property assessed receives some special benefit differing from the benefit that the general public enjoys." Robert Kratovil, Real Estate Law465 (6th ed. 1974). assessment for benefits. See special assessment. deficiency assessment. An assessment by the IRS after administrative review and tax-court adjudi cation of additional tax owed by a taxpayer who underpaid. See DEFICIENCY (2). [Cases: Internal Revenue <8=)4520.] double assessment. The act of requiring that tax be paid twice for the same property. See double taxation under TAXATION. [Cases: Taxation C=2150-2156, 3435.] assessment for benefits erroneous assessment. An assessment that deviates from the law and creates a jurisdictional defect, and that is therefore invalid. excessive assessment. A tax assessment that is grossly disproportionate as compared with other assess ments. [Cases: Taxation (;::=)2127.] frontage assessment. (1877) A municipal tax charged to a property owner for local improvements that abut a street or highway, such as sidewalks, pavements, or sewage lines. [Cases: Municipal Corporations (>::> 469.] jeopardy assessment. An assessment by the IRS without the usual review procedures ofadditional tax owed by a taxpayer who underpaid, based on the IRS's belief that collection ofthe deficiency would be jeopardized by delay. IRC (26 USCA) 6811 et seq. [Cases: Internal Revenue C-'='4548.] local assessment. A tax to pay for improvements (such as sewers and sidewalks) in a deSignated area, levied on property owners who will benefit from the improvements. Also termed local-improvement assessment. [Cases: Municipal Corporations 405.] "Since there is [an] important and fundamental distinc tion between the tax in the more limited sense and the local assessment, the question often arises whether provi sions in constitutions and statutes which refer by name to taxes, include also local assessments. This is primarily a question of legislative intention. In the absence of anything to show the specific intention of the legislature, the general rule is that the local assessment possesses such marked peculiarities differentiating it from the tax in the more limited sense of the term, that the use of the term 'tax' does not prima facie show an intention to include local assessments." 1 William H. Page & Paul Jones, A Treatise on the Law of Taxation by Local and Special Assessments 39, at 67 (1909). maintenance assessment. See MAINTENANCE FEE (2). political assessment. Hist. A charge levied on office holders and political candidates by a political party to defray the expenses for a political canvass. special assessment. The assessment of a tax on property that benefits in some important way from a public improvement. Also termed assessment for benefits. [Cases: Municipal Corporations (>::>405.] 3. Official valuation ofproperty for purposes of taxation <assessment of the beach house>. -Also termed tax assessment. Cf. APPRAISAL. [Cases: Taxation (>::>2431.] 4. An audit or review <internal financial assessment> <environmental site assessment>. -assess, vb. assessment bond. See BOND (3). assessment company. An association that offers its members life insurance, and then pays for death losses by levying an assessment on the surviving members of the association. assessment contract. See CONTRACT. assessment district. See DISTRICT. assessment for benefits. See special assessment under ASSESSMENT. 134 assessment fund assessment fnnd. The balance of the assessments of a mutual benefit association, minus expenses, from which beneficiaries are paid. [Cases: Beneficial Asso ciations 17.] assessment insurance. See INSURANCE. assessment list. See ASSESSMENT ROLL. assessment period. A taxable period. assessment ratio. For property tax purposes, the ratio of assessed value to fair market value. assessment roll. A record of taxable persons and property, prepared by a tax assessor. Also termed assessrn,ent list; (in some New England states) grand list. [Cases: Taxation <.r'-::::>2576.] assessment work. Mining law. The annual labor (such as improvements) that must be performed on an unpatented mining claim to continue to hold the claim. [Cases: Mines and Minerals 0='23.] assessor. (14c) 1. An official who evaluates or makes assessments, esp. for purposes of taxation. Also termed (specif.) tax assessor. [Cases: Taxation 2431, 2434.J 2. A person who advises a judge or magis trate about scientific or technical matters during a trial. See MASTER (2). 3. ADSESSOR. assessorial (as-;:l-sor ee-;:ll), adj. assessorship, n. asset. (16c) 1. An item that is owned and has value. 2. (pl.) The entries on a balance sheet showing the items ofproperty owned, including cash, inventory, equip ment, real estate, accounts receivable, and goodwilL 3. (pl.) All the property of a person (esp. a bankrupt or deceased person) available for paying debts or for distribution. accrued asset. An asset arising from revenues earned but not yet due. admitted asset. An asset that by law may be included in evaluating the financial condition of an insurance company. Cf. nonadmitted asset. [Cases: Insurance C=:>1363.J appointive asset. An asset distributed under a power of appointment. assets by descent. The portion of an estate that passes to an heir and is sufficient to charge the heir with the decedent's speCialty debts. -Also termed assets per descent. assets in hand. The portion of an estate held by an executor or administrator for the payment of debts chargeable to the executor or administrator. -Also termed assets entre main; assets entre mains. assets per descent. See assets by descent. asset under management. A securities portfolio for which an investment adviser provides ongoing, regular supervisory or management services. capital asset. 1. A long-term asset used in the operation of a business or used to produce goods or services, such as equipment, land, or an industrial plant. Also termed jixed asset. 2. For income-tax purposes, assets specifically excluded by the Internal Revenue Code. Excluded from the definition are, among other things, stock in trade, inventory, and property held by the taxpayer primarily for sale to customers in the ordinary course of trade or business. [Cases: Internal Revenue 0='3230.1-3261.) commercial assets. The aggregate of available property, stock in trade, cash, and other assets belonging to a merchant. current asset. An asset that is readily convertible into cash, such as a marketable security, a note, or an account receivable. Also termed liqUid asset; quick asset; near money;jinancial asset. "Current assets are assets expected to be converted to cash. sold. or consumed during the next twelve months, or within the business's normal operating cycle if the cycle is longer than a year. The operating cycle is the period from the time that cash is used to acquire goods and services, these goods and services are sold to customers, and the accounts receivable from these customers are collected in cash. For a small retail store, the operating cycle may be only a few weeks or months. For a shipbuilding company, however, the normal operating cycle could run several years." Jay Alix & Elmer E. Heupel, FinanCial Handbook foy Bankruptcy Professionals 9.2, at 354 (1991). dead asset. A worthless asset; an asset that has no real izable value, such as an uncollectible account receiv able. earning asset. (usu. pI.) An asset (esp. of a bank) on which interest is received . Banks consider loans to be earning assets. equitable asset. An asset that is subject to payment only in a court of equity. financial asset. See current asset. fixed asset. See capital asset (1). frozen asset. An asset that is difficult to convert into cash because of court order or other legal process. hard asset. See real asset. hidden asset. An asset carried on the books at a sub stantially reduced or understated value that is con siderably less than market value. illiquid asset. An asset that is not readily convertible into cash, usu. because of (1) the lack of demand, (2) the absence of an established market, or (3) the sub stantial cost or time required for liquidation (such as for real property, even when it is desirable). individual asset. (usu. pl.) Property belonging to a member of a partnership as personal property, separate from the partnership's property. [Cases: Partnership (;:::)67.] intangible asset. Any nonphysical asset or resource than can be amortized or converted to cash, such as patents, goodwill, and computer programs, or a right to something, such as services paid for in advance. junk asset. See troubled asset. legal asset. A decedent's asset that by law is subject to any of most assets held by a taxpayer except those i the claims of creditors or legacies. -Also termed 135 probate asset. [Cases: Executors and Administrators C--:>38.] liquid asset. See current asset. mass asset. An intangible asset, such as a dominant market position, that is made up ofseveral compo nents but that is considered a single entity for purposes of depreciation, because the loss of any component ofthe asset is replaced by new components, so that the whole asset has little or no fluctuation in value. An entity with a dominant market position might lose a vendor but, because of its dominant market position, still be able to replace the loss with a new vendor. The market position is therefore considered a mass asset. net assets. See net worth under WORTH. net quick assets. The excess of quick assets less current liabilities. See QUICK-ASSET RATIO. new asset. Wills & estates. In the administration of a decedent's estate, property that the administrator or executor receives after the time has expired to file claims against the estate. nominal asset. An asset whose value is difficult to assess, such as a judgment or claim. nonadmitted asset. An asset that by law may not be included in evaluating the financial condition of an insurance company because it cannot be converted quickly into cash without a finandalloss. Cf. admitted asset. [Cases: Insurance (;=-1363.] nonprobate asset. Property that passes to a named beneficiary upon the owner's death according to the terms of some contract or arrangement other than a will. Such an asset is not a part of the probate estate and is not ordinarily subject to the probate court's jurisdiction (and fees), though it is part of the taxable estate. Examples include life-insurance contracts, joint property arrangements with right of survivorship, pay-an-death bank accounts, and inter vivos trusts. Also termed nonprobate property. Cf. WILL SUBSTITUTE. [Cases: Wills ~4.] personal asset. An asset in the form of money or chattels. premarital asset. Property that a spouse owned before marrying. In most jurisdictions, this is part of the spouse's separate property. See SEPARATE PROPERTY. Cf. COMMUNITY PROPERTY. [Cases: Divorce 252.3(3); Husband and Wife ~248.5.] probate asset. See legal asset. quick asset. 1. Cash and other current assets other than inventory. 2. See current asset. real asset. 1. An asset in the form ofland. 2. Loosely, any tangible asset. -Also termed hard asset. tangible asset. An asset that has a physical existence and is capable ofbeing assigned a value. toxic asset. See troubled asset. troubled asset. A debt-related asset, such as a mortgage loan, for which the debt has become or is likely to assignable become un collectable, resulting in a sudden, sharp decrease in the asset's value. -Also termed toxic asset; junk asset. wasting asset. An asset exhausted through use or the loss ofvalue, such as an oil well or a coal deposit. asset acquisition. Acquisition of a corporation by pur chasing all its assets directly from the corporation itself, rather than by purchasing shares from its sharehold ers. Also termed asset purchase. Cf. SHARE ACQUI sITIoN. asset allocation. The spreading offunds between differ ent types of investments with the intention ofdecreas ing risk and increasing return. asset-backed security. See SECURITY. asset-based financing. See FINANCING. asset-coverage test. Accounting. A bond-indenture restriction that permits additional borrowing only if the ratio ofassets (typically net tangible assets) to debt (typically long-term debt) does not fall below a speci fied minimum. asset-depreciation range. (1971) Tax. The IRS's range of depreciation lifetimes allowed fOf assets placed in service between 1970 and 1980 and for assets depreci ated under the Modified Accelerated Cost Recovery System under the Tax Reform Act of 1986. -Abbr.

ated under the Modified Accelerated Cost Recovery System under the Tax Reform Act of 1986. -Abbr. ADR. See ACCELERATED COST RECOVERY SYSTEM. [Cases: Internal Revenue ~3476.] asset dividend. See DIVIDEND. asset-protection trust. See TRUST (3). asset purchase. See ASSET ACQUISITION. asset sale and liquidation. Mergers & acquisitions. A merger in which a corporation's board and a majority of the stockholders approve a sale of most or all of the corporation's assets to another corporation in exchange for cash or debt. assets by descent. See ASSET. assets entre main. See assets in hand under ASSET. assets in hand. See ASSET. assets per descent. See assets by descent under ASSET. asset under management. See ASSET. asset value. See NET ASSET VALUE. asseverate (;>-sev-;>-rayt), vb. (1744) To state solemnly or positively; to aver. See AVERMENT. -asseveration (;>-sev-;>-ray-sh;>n), n. assign, n. (usu. pl.) See ASSIGNEE. assign, vb. 1. To convey; to transfer rights or property <the bank assigned the note to a thrift institution>. [Cases: Assignments 1.] 2. To assert; to pOint out <the appellant aSSigned as errors two of the trial court's rulings>. See ASSIGNMENT OF ERROR. assignable, adj. (1809) Able to be assigned; transferable from one person to another, so that the transferee has the same rights as the transferor had <assignable right>. Cf. NEGOTIABLE. [Cases: Assignments ~1.] 136 assignable lease assignable lease. See LEASE. assignation (as-ig-nay-shcm), n. 1. Archaic. An appoint ment of a time and place to meet, esp. for engaging in illicit sex. 2. Eccles. law. A specific allegation in a detendant's counterpleading. 3. French law. A plaintiff's complaint; a writ of summons. assignation house. See DISORDERLY HOUSE. assign dower. To set out the legal description of a widow's share of her deceased husband's estate. See DOWER. assigned account. See ACCOUNT. assigned wunsel. See COUNSEL. assigned error. See ERROR. assigned risk. See RISK. assignee (;:I-sl-nee or as-;:I-nee). (l4c) One to whom property rights or powers are transferred by another. Use of the term is so widespread that it is difficult to ascribe positive meaning to it with any specificity. Courts recognize the protean nature of the term and are therefore often forced to look to the intent of the assignor and assignee in making the assignment rather than to the formality of the use of the term assignee -in defining rights and responsibilities. Also termed assign. [Cases: Assignments C-~90.] absolute assignee. A person who is assigned an unqual ified interest in property in a transfer of some or all of the incidents of ownership. assignee ad interim. An assignee appointed between the time of bankruptcy and the appointment of a regular assignee. assignee for value. An assignee who has paid for or otherwise given consideration for the assignment. collateral assignee. A lender who is assigned an interest in property (usu. real property) as security for a loan. gratuitous assignee. An assignee under an assignment not given for value. subassignee. A person to whom a right is aSSigned by one who is a previous assignee of the right. assignee clause. (1925) A provision ofthe Judiciary Act of 1789 that prevented a litigant without diversity of citizenship from assigning a claim to another who did have the required diversity . In 1948 the assignee clause was replaced by 28 USCA 1359, which denies federal jurisdiction when a party is improperly or col lUSively jOined, by assignment or otherwise, merely to invoke jurisdiction. assignee estoppel. See ESTOPPEL. assigner. See ASSIGNOR. assignment. (14c) 1. The transfer of rights or property <assignment of stock options>. [Cases: Assignments (;:='31.] 2. The rights or property so transferred <the aunt aSSigned those funds to her niece, who promptly invested the assignment in mutual funds>. "An assignment is a transfer or setting over of property, or of some right or interest therein, from one person to another; the term denoting not only the act of transfer, but also the instrument by which it is effected. In these senses the word is variously applied in law." Alexander M. Burrill, A Treatise on the Law and Practice of Voluntary Assignments for the Benefit of Creditors 1, at I (James Avery Webb ed., 6th ed. 1894). "Negotiability differs from assignment, with which it has obvious affinities, in at least two respects. In the first place no notice need be given of the transfer of a negotiable instrument, and in the second place the transfer of such an instrument is not subject to equities. Thus whereas an assignor only transfers his rights subject to any defences which could be pleaded against him, a transfer of a nego tiable instrument to someone in good faith passes a good title, free from any such defences. For instance a person who receives a cheque in good faith obtains a good title, even though the cheque may have been stolen. It is not, of course, any document which has the attributes of nego tiability. Only those documents recognized by the custom of trade to be transferable by delivery (or endorsement) are negotiable. Other documents can only be transferred by assignment." P.S. Atiyah. An Introduction to the Law of Contract 278-79 (3d ed. 1981). absolute assignment. An aSSignment that leaves the assignor no interest in the aSSigned property or right. [Cases: Assignments C:::>71.] assignment by operation oflaw. A transfer of a right or obligation as a necessary consequence ofa change in legal status, regardless of the affected party's intent. For example, a right and a corresponding obliga tion may disappear ifthey vest in the same person, as might happen in a merger or acquisition. assignmentfor value. An assignment given in exchange for consideration. [Cases: Assignments (;:='53.] assignment in gross. A transfer of a company's trade mark separately from the goodwill of the business. Courts often hold that such an assignment passes nothing of value to the transferee. -Also termed naked assignment. See ANTl-ASSIGNMENT-IN-GROSS RULE. [Cases: Trademarks Cd 1201.] assignment ofaccount. An assignment that gives the assignee the right to funds in an account, usu. to satisfy a debt. [Cases: Assignments C:::> 10.] assignment ofapplication. 1. Patents. The U.S. Patent and Trademark Office's formal routing of a patent or trademark application to the examining group to which it appears to belong based on subject matter. [Cases: Patents C:::> 104; Trademarks ~-,1287.]2. The transfer of the right to prosecute a patent or register a trademark . The assignee must show ownership in the property to be patented or registered and, if less than absolute, the extent of ownership. See 37 CFR 3.73. [Cases: Patents C:::> 183; Trademarks 1197.] assignment ofdower (dow-;:Ir). The act ofsetting apart a widow's share of her deceased husband's real property. [Cases: Dower and Curtesy 0:::::'65-112.] assignment ofincome. See assignment ofwages. assignment oflease. An assignment in which a lessee transfers the entire unexpired remainder ofthe lease 137 term, as distinguished from a sublease transfer ring only a portion of the remaining term. [Cases: Landlord and Tenant (;::::::>74-79.] assignment of realty. A transfer of a real-property interest that is less than a freehold . The term includes debt-security interests in land. assignment ofwages. A transfer of the right to collect wages from the wage earner to a creditor. -Also termed assignment ofincome. [Cases: Assignments assignment pro tanto. An assignment that results when an order is drawn on a third party and made payable from a particular fund that belongs to the drawer. The drawee becomes an assignee with respect to the drawer's interest in that fund. [Cases: Assignments (;::;:J49.] collateral assignment. An assignment of property as collateral security for a loan. [Cases: Secured Trans actions C:::::> 181.] common-law assignment. An assignment for the benefit of creditors made under the common law, rather than by statute. [Cases: Debtor and Creditor 1.] conditional assignment. An assignment of income (such as rent payments or accounts receivable) to a lender, made to secure a loan . The lender receives the assigned income only if the assignor defaults on the underlying loan. [Cases: Mortgages 199(2); Secured Transactions (;::;:J 181.] effective assignment. An assignment that terminates the assignor's interest in the property and transfers it to the assignee. equitable assignment. An assignment that, although not legally valid, will be recognized and enforced in equity for example, an assignment of a chose in action or of future acquisitions of the assignor . To accomplish an "equitable assignment," there must be an absolute appropriation by the assignor ofthe debt or fund sought to be assigned. [Cases: Assignments C-~48.1 fly-power assignment. A blank written assignment that, when attached to a stock certificate, renders the stock transferable. [Cases: Corporations C~125.] foreign assignment. An assignment made in a foreign country or in another jurisdiction. general assignment. Assignment ofa debtor's property for the benefit ofall the assignor's creditors, instead of only a few. -Also termed voluntary assignment. See ASSIGNMENT FOR THE BENEFIT OF CREDITORS. [Cases: Debtor and Creditor 1.] gratuitous assignment. An assignment not given for value; esp., an assignment given or taken as security for -or in total or partial satisfaction of - a preex isting obligation. [Cases: Assignments C:::::>54.] mesne assignment (meen). A middle or intermediate assignment; any assignment before the last one. assignment for the benefit of creditors naked assignment. See assignment-in-gross. partial assignment. The immediate transfer ofpart but not all of the assignor's right. [Cases: Assignments C:::::> 30.] preferential assignment. See PREFERENTIAL TRANS FER. total assignment. An assignment empowering the assignee to enforce the entire right for the benefit of the assignor or others. Examples are assignment to secure an obligation and assignment to a trustee. voluntary assignment. See general assignment. wage assignment. An aSSignment by an employee of a portion ofthe employee's pay to another (such as a creditor). [Cases: Assignments (;::;:J 11.1.] 3. The instrument of transfer <the assignment was appended to the contract>. [Cases: Assignments (;:::>31.] 4. A welfare recipient's surrender ofhis or her rights to child support (both current and past due) in favor ofthe state as a condition ofreceiving governmental financial assistance <the assignment made economic sense to her because her child support amounted to $200 a month, while she received $400 a month in welfare>. 5. A task, job, or appointment <the student's math assignment> <assignment as ambassador to a foreign country>. 6. The act of assigning a task, job, or appointment <the assignment ofvarious duties>. assignment ofthe floor. Parliamentary law. The process by which the chair recognizes who is entitled to speak. 7. In litigation practice, a point that a litigant advances <the third assignment oferror>. new assignment. Hist. A plaintiff's restatement of a claim because the first complaint did not contain suf ficient details . The purpose was to allow a plain tiff to reply to a defendant's responsive plea that did not address the plaintiff's specific claim because the complaint was too general. New aSSignment has been replaced by amended pleadings. -Also termed novel assignment. "A new assignment is a restatement in the replication of the plaintiff's cause of action. Where the declaration in an action is ambiguous and the defendant pleads facts which are literally an answer to it, but not to the real claim set up by the plaintiff, the plaintiff's course is to reply by way of new assignment; that is, to allege that he brought his action, not for the cause supposed by the defendant, but for some other cause, to which the plea has no appli cation." Benjamin j. Shipman, Handbook of Common Law Pleading 214, at 370 (Henry Winthrop Ballantine ed., 3d ed.1923). assignment clause. Oil &gas. See CHANGE-OF-OWNER SHIP CLAUSE. Assignment Division. 'The section of the U.S. Patent and Trademark Office that is responsible for record ing assignments and other documents affecting title to patent and trademark applications, patents, and reg istrations. assignment for the benefit ofcreditors. (18c) Assign ment of a debtor's property to another person in trust 138 assignment of dower so as to consolidate and liquidate the debtor's assets for payment to creditors, any surplus being returned to the debtor. _This procedure serves as a state-law substitute for federal bankruptcy proceedings. The debtor is not discharged from unpaid debts by this procedure since creditors

federal bankruptcy proceedings. The debtor is not discharged from unpaid debts by this procedure since creditors do not agree to any discharge. [Cases: Debtor and Creditor C=:> 1.] assignment ofdower (dow-dr). See ASSIGNMENT (2). assignment of error. (l7c) A specification of the trial court's alleged errors on which the appellant relies in seeking an appellate court's reversal, vacation, or mod ification of an adverse judgment. PI. assignments of error. S~e ERROR. Cf. WRIT OF ERROR. [Cases: Appeal and Error 0::>718; Criminal Law C=:> 1129.] assignment of income. See assignment ofwages under ASSIGNMENT (2). assignment-of-income doctrine. Family law. The com mon-law principle that the person who has earned income is the person taxed on it, regardless of who receives the proceeds. _ Under this doctrine, future income assigned to another is taxable to the assignor. For example, in Lucas v. Earl, 281 U.S. 111,50 S.Ct. 241 (1930), the Court held that a husband who was the sole wage-earner could not assign to his wife half his income and then pay the federal income tax on only the unassigned part. assignment oflease. See ASSIGNMENT (2). assignment of property. See EQUITABLE DISTRIBU TION. assignment ofrealty. See ASSIGNMENT (2). assignment-of-rents dause. A mortgage provision or separate agreement that entitles the lender to collect rents from the mortgaged premises if the borrower defaults. [Cases: Mortgages C=:> 199(2).] assignment of rights. (I8c) Contracts. The transfer of rights, esp. contractual rights, from one party to another. [Cases: Assignments C:::> 17.] assignment ofwages. See ASSIGNMENT (2). assignment pro tanto. See ASSIGNMENT (2). assignor (as-d-nor or ~-SI-n~r or ~-sI-nor). (17c) One who transfers property rights or powers to another. -Also spelled aSSigner. [Cases: Assignments assignor estoppel. See ESTOPPEL. Assimilative Crimes Act. A federal statute proViding that state law applies to a crime committed within a federal enclave in that state (such as a reservation or military installation) if the crime is not punishable under federal law. 18 USCA 13. -This statute uses local laws as gap-fillers for federal criminal law. [Cases: Criminal Law (;=, 16.J assisa armorum (<l-SI-Zd ahr-mor-dm). [Law Latin "assize ofarms"] Hist. A statute requiring the keeping ofarms for the common defense. -Also termed assize ofarms. See Assize ofArms under ASSIZE (2). assisa cadere (<l-Sl-Z~ kad-d-ree), vb. [Law Latin] Hist. To fail in the assize, as by being nonsuited. assisa continuanda (<l-SI-Zd kdn-tin-yoo-an-dd) [Law Latin] Hist. A writ addressed to the justices of assize for the continuation ofa case. assisa de foresta (~-SI-Z<l dee for-es-td), n. [Law Latin "assize ofthe forest"] Hist. A statute concerning orders to be observed in the royal forest. -Also termed ordi natio forestae; assisa forestae. assisa de mensuris (a-sl-z3 dee men-s[y]oor-is), n. [Law Latin "assize of measures"] Hist. A common rule for weights and measures, established by Richard I in the eighth year of his reign. assisa de morte antecessoris. See assize ofmort d 'ancestor under ASSIZE (6). assisa de nocumento (d-SI-Zd dee nok-Y<l-men-toh), n. [Law Latin "assize ofnuisance"]. See assize ofnuisance under ASSIZE (8). assisa de utrum (d-SI-Zd dee yoo-trdm), n. [Law Latin "assize of utrum"] See ASSIZE UTRUM. assisa forestae. See ASSISA DE FORESTAE. assisa friscae fortiae. See assize offresh force under ASSIZE (7). assisa mortis d'ancestoris (3-SI-Zd mor-tis dan-ses-tor is), n. [Law Latin] See assize ofmort d'ancestor under ASSIZE (6). assisa novae disseysinae (~-SI-Zd noh-vee di-see-zin-ee), n. [Law Latin] See ASSIZE OF KOVEL DISSEISIN. assisa panis et cerevisiae (<l-SI-Zd pan-is et ser-<l-vish ee-ee), n. [Law Latin "assize ofbread and ale"] Hist. A statute passed in the 51st year ofthe reign ofHenry III, regulating the sale of bread and ale. Also termed statute ofbread and ale. assisa proroganda. See DE ASSISA PROROGANDA. assisa ultimae praesentationis (d-SI-Zd al-ti-mee pree z3n-tay-shee-oh-nis or preZ-dn-), n. [Law Latin] See assize ofdarrein presentment under ASSIZE (7). assisa venalium (a-sI-zd v~-nay-lee-dm), n. [Law Latin] Hist. The assize ofsalable commodities. assise. See ASSIZE. assiser. See ASSIZER. assistance. Civil law. Compensation for an effort to save a threatened vessel, cargo, or ship personnel at sea. Cf. NO CURE, NO PAY. assistance, writ of. See WRIT OF ASSISTANCE. assistance ofcounsel. (17c) Representation by a lawyer, esp. in a criminal case. -The phrase in its modern uses derives from the Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." U.S. Con st. amend. VI. See RIGHT TO COUNSEL. [Cases: Criminal Law C=:> 1710-1975.] effective assistance ofcounsel. (1937) A conscientious, meaningful legal representation, whereby the defen dant is advised of all rights and the lawyer performs all required tasks reasonably according to the prevail ing profeSSional standards in criminal cases. See Fed. 139 R. Crim. P. 44; 18 USC A 3006A. [Cases: Criminal Law 1870-1975.] "The law is in flux on precisely what constitutes the 'effective' assistance of counsel. The Supreme Court has yet to set forth a definitive standard, and lower courts have adopted differing ones. Prior to the 19705 the most common standard was the 'mockery of justice' standard, under which counsel's assistance was 'ineffective' only when it was so inadequate that it reduced the trial 'to a farce' or rendered it a 'mockery ofjustice: Since that time, most courts have abandoned this formulation in favor of more stringent requirements, stipulating, for example, that 'counsel must exercise [the] normal skill and knowledge which normally prevails at the time and place' (Moore v. United States, 432 F.2d 730 (3d Or. 1970)), that counsel must render the 'reasonably competent assistance of an attorney acting as his diligent advocate' (United States v. Decoster, 487 F.2d 1197 (D.C. Or. 1973, or that counsel's representation must be 'within the range of competence demanded of attorneys in criminal cases' (Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977. All of these new standards beg the questions of what traditional level of practice is to be regarded as 'customary,' 'diligent,' or 'rea sonable.' Thus, little has been definitively resolved by the new, higher standards." Arval A. Morris, "Right to Counsel," in 1 Encyclopedia of Crime and Justice 278, 283 (Sanford H. Kadish ed., 1983). inadequate assistance ofcounsel. See ineffective assis tance ofcounsel. ineffective assistance ofcounsel. (1957) A representa tion in which the defendant is deprived of a fair trial because the lawyer handles the case unreasonably, usu. either by performing incompetently or by not devoting full effort to the defendant, esp. because of a conflict of interest . In determining whether a criminal defendant received ineffective assistance of counsel, courts generally consider several factors: (1) whether the lawyer had previously handled criminal cases; (2) whether strategic trial tactics were involved in the allegedly incompetent action; (3) whether, and to what extent, the defendant was prejudiced as a result of the lawyer's alleged ineffectiveness; and (4) whether the ineffectiveness was due to matters beyond the lawyer's control. Also termed inad equate assistance ofcounsel. [Cases: Criminal Law C=> 1870-1975.] "The Sixth Amendment right to assistance of counsel has been held to imply the 'right to the effective assistance of counsel.' The Court has often said that the converse inef fective assistance of counsel is a constitutional denial of the Sixth Amendment right, even if the lawyer has been retained by rather than appointed for the defendant. 'Inef fective' does not necessarily mean incompetent or unpre pared; it means an inability to perform as an independent lawyer devoted to the defendant.. . However, counsel's assistance is not necessarily ineffective because the lawyer made mistakes. Only very serious errors, such as would likely have produced an entirely different outcome at trial, will suffice to require a new trial." Jethro K. Lieberman, The Evolving Constitution 263-64 (1992). Assistant Commissioner for Patents. See commissioner for patents under COMMISSIONER. Assistant Commissioner for Trademarks. See commis sioner for trademarks under COMMISSIONER. assistant jurisdiction. See JURISDICTION. assize Assistant United States Attorney. See UNITED STATES ATTORNEY. assisted conception. Family law. The fertilization of a woman's egg with a man's sperm by some means other than sexual intercourse. See ARTIFICIAL INSEMINA TION; IN VITRO FERTILIZATION; GAMETE INTRAFALLO PIAN TRANSFER; ZYGOTE INTRAFALLOPIAN TRANSFER. [Cases: Child CustodyC=>274.5; Children Out-of Wed lock C=>15; Parent and Child C-~20.] assisted reproductive technology. Family law. Any medical means of aiding human reproduction, esp. through laboratory procedures. -Abbr. ART. Also termed assisted reproduction; assisted-reproductive therapy. [Cases: Child Custody C-::o274.5; Children Out-of-Wedlock C= 15; Parent and Child C=>20.] assisted self-determination. See assisted suicide under SUICIDE. assisted suicide. See SUICIDE. assize (a-sIz), n. (14c) 1. A session ofa court or council. maiden assize. Hist. 1. An assize in which no prisoner is sentenced to death. 2. An assize in which the sheriff presents the judges with white gloves because there are no prisoners to try . This practice stemmed from a custom in which a prisoner who was convicted of murder but pardoned by the Crown presented gloves to the judges as a fee. 2. A law enacted by such a body, usu. one setting the measure, weight, or price of a thing. Assize ofArms. An 1181 statute requiring every man to keep arms suitable to his station in life. See ASSISA ARMORUM. Assize ofClarendon (klar-~:m-d<:m). Hist. A decree issued in 1166 by Henry II to the justices in eyre and sheriffs concerning criminal procedure . The Assize expanded the reach of the king's courts by asserting royal jurisdiction over serious crimes. See CO.NSTITU TIONS OF CLARENDON. Assize ofNorthampton. Hist. A decree issued in 1176 by Henry II as an expansion and reissue ofthe Assize of Clarendon, instructing judges esp. on questions of tenure, relief, and dower. 3. The procedure provided for by such an enact ment. 4. The court that hears cases involving that pro cedure. 5. A jury. grand assize. (often cap.) A sworn panel summoned by judicial writ to resolve disputes concerning real property. Henry II instituted the Grand Assize in the 12th century as an alternative to trial by battle. Also termed magna assisa. petite assize. A jury convened to decide questions of posseSSion. 6. Ajury trial. assize ofmort d'ancestor (mor[t] dan-ses-t<lr). An action for the recovery ofland belonging to the claim ant's ancestor . Mort d'ancestor was abolished in the early 19th century. -Also termed assisa mortis d'ancestoris; assisa de morte antecessoris. judicial assize. An assize begun by judicial writ and deriving from pleas of gage, mort d'ancestor, and darrein presentment. petty assize. An assize begun by an original writ . Petty assizes were characterized by the form of the writ, which specified the questions to be put to the panel, and ordered that a panel be assembled. The petty assizes were novel disseisin, mort

to be put to the panel, and ordered that a panel be assembled. The petty assizes were novel disseisin, mort d'ancestor, utrum, and darrein presentment. "The word 'Assisa' means originally the sitting of a court or assembly. It then comes to denote the things done, the enactments passed, at such a court or assembly. Thus we speak of the Assize of Clarendon, or the Assize of Northampton. Certain of these enactments in Henry II's reign introduced a new procedure for the trial of questions as to the ownership or possession of lands held by free tenure. The Grand Assize introduced this new procedure for the determination of questions of ownershi p; the pos sessory assizes for the determination of question of pos session." 1 William Holdsworth, A History of English Law 275 (7th ed. 1956). 7. A jury's finding. 8. A writ. -Also spelled assise; assisa. assize afdarrein presentment (dar-ayn pri-zent-mant), n. [fr. French dernier presentation "last presentment"] Hist. A writ allOWing a person with a right of advowson that had been disturbed by another claimant to have a jury determine who last had last presented a clerk to a benefice and then to allow that person to present again and to recover damages for interference . This was abolished by the Real Property Limitation Act of 1833 and was replaced by the quare impedit action. Also spelled darreign. -Also termed darreign pre sentment; assize oflast presentation; assisa ultimae praesentationis; assize de ultima presentatione. See ADVOWSON; QUARE IMP EDIT. "An assise of darrein presentment, or last presentation, lies when a man, or his ancestors, under whom he claims, have presented a clerk to a benefice, who is instituted; and afterwards upon the next avoidance a stranger presents a clerk. and thereby disturbs him that is the real patron. In which case the patron shall have this writ, directed to the sheriff to summon an assise or jury, to enquire who was the last patron that presented to the church now vacant, of which the plaintiff complains that he is deforced by the defendant: and, according as the assise determines that question, a writ shall issue to the bishop; to institute the clerk of that patron, in whose favour the determination is made, and also to give damages ...." 3 William Blackstone, Commentaries on the Laws ofEng/and 245 (1768). "[Alt some time or another during his reign Henry gave a possessory action, the assize of darrein presentment, .. which stands to the writ of right ofadvowson in somewhat the same relation as that in which the novel disseisin stands to the writ of right for land. If the church is vacant and two persons are quarrelling about the advowson, it is very nec essary that some provisional, some possessory judgment should be given .... The principle of the new assize is. simply stated, this: 'He who presented last time, let him present this time also; but this without prejudice to any question of right.' An inquest of neighbours is summoned to declare who it was that presented the last parson," 1 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward 1148-49 (2d ed. 1898). assize offreshforce. Hist. A writ available in urban areas to disseise another's land . This writ is so called because it was available only within the first 40 days after title accrued to the person seeking it. -Also termed assisa friscae fortiae. assize ofnovel disseisin. Hist. A writ for a tenant who has been disseised of lands and tenements . This institution of English law flourished for about 300 years -from the 12th century to the 15th. It had become wholly obsolete by the mid-17th century. Also termed assisa novae disseysinae. "[Up to the 15th century,] 'assize of novel disseisin' was a series of perfectly plain words, as plain as the words 'proceeding in recent ejectment: which translate them into modern English, would be to us. Even to humble contemporaries whose linguistic horizons did not extend beyond English, the institution itself apart from its name was perfectly straightforward. It meant that ifa freeholder of land was ejected from his property he could require the sheriff to set up ajury of twelve, have them go look at the land, and bring them before the king's justices when they next came to hold court in the county. The justices asked the jurors whether the freeholder had been illegally put out of his holding, as he complained, and if they said that he had then the court would restore the land to him at once." Donald W. Sutherland, The Assize ofNovel Disseisin 1-2 (1973). assize ofnuisance. Hist. A writ available to a landowner suffering from a nuisance on another's land; a writ to abate a nuisance . This writ also entitled a suc cessful plaintiff to damages. Also termed assisa de nocumento. "The assize of nuisance. This was supplementary to the famous assize of novel disseisin which was limited to redressing any act of the defendant that interfered with the plaintiff's seisin of land. It was therefore useless if the injury to the plaintiff began wholly on the defendant's land (e.g., if he erected there a dam which diverted water from the plaintiff's land), for the injury was not a disseisin as there was no entry on the plaintiff's land. This gap was filled by the assize of nuisance as early as the thirteenth century. It extended both to injuries to servitudes stricto sensu and to common rights." P.H. Winfield, A Textbook of the Law of Tort 130, at 443 (5th ed. 1950). assizer, n. Hist. 1. A member ofa grand assize. See grand assize under ASSIZE (5). 2. Scots law. A juror. 3. One having custody of the standards of weight and measure; esp., one who fixes the assize of bread, ale, and other items ofgeneral consumption. -Also spelled assizor; assiser; assisor. Assizes de Jerusalem (a-slz-az da ja-roo-sa-lam). A code of feudal law intended to serve as the law of the lands conquered by the Crusaders . The code was prepared in the 12th century after the lO99 conquest of Jerusa lem. assize utrum (yoo-tram). [Latin] Hist. A writ to deter mine whether land claimed by a church was held by lay or spiritual tenure . This writ is named after its emphatic word, which required the fact-finder to determine whether (utrum) the land belonged to the church. -Also termed (erroneously) assize ofutrum; assize de utrum. 141 "In the assize utrum a jury was summoned to decide whether land was held by lay or spiritual tenure a pre liminary question to any litigation about it, for the Church claimed jurisdiction over spiritual land. later the Church was to lose this jurisdiction, and the assize utrum became the parson's substitute for the writ of right. This curious development was brought about in this way. A parson could not use the writs of right, for. like a life tenant. he could not trace his title back to the seisin of an ancestor. The assize utrum could be made to serve the parson, however, for the question asked in the writ was whether certain land in a parish was 'the free alms of the Church of x.' If the answer was 'yes,' then it followed that it was the parson of the parish's land." Brian Simpson. An Introduction to the History ofthe Land Law 30-31 (1961). "[TJhe 'assize utrum' ... is important as being the first instance known to us of the general use of the royal pro cedure by way of inquest in a matter of private litigation. If the answer of the inquest was that this land was held in frankalmOign. then the case went to the ecclesiastical coun; if that it was lay fee, then to the appropriate lay tribunal. In the course of the thirteenth century the ecclesi astical courts lost their jurisdiction over land held by spiri tual tenure, and the 'assize utrum' came to be used not as a merely preliminary procedure but as a mode of deciding in royal courts a question of title to glebe land." Geoffrey Radcliffe & Geoffrey Cross, The English Legal System 33-34 (G.J. Hand & D.J. Bentley eds., 6th ed. 1977). assizor. See ASSIZER. associate, n. (16c) 1. A colleague or companion. 2. A junior member ofan organization or profession; esp., a lawyer in a law firm, usu. with fewer than a certain number of years in practice, who may, upon achiev ing the requisite seniority, receive an offer to become a partner or shareholder. -Also termed associate attorney. 3. Hist. English law. An officer of a common law court responsible for maintaining the court's records, attending jury trials, and entering verdicts . In 1894, associates' duties were taken over by the staff of the Central Office. See CLERK OF ASSIZE; CENTRAL OFFICE. associate agent. See AGENT (3). associate attorney. See ATTORNEY. associated person. Securities. 1. A partner, officer, director, branch manager ofa broker or dealer, or any person performing similar functions or occupying a similar status, any person directly or indirectly con trolling, controlled by, or under common control with the broker or dealer, or any employee of the broker or dealer -with two exceptions: (1) those whose functions are solely clerical or ministerial, and (2) those required to register under state law as a broker or dealer solely because they are issuers ofsecurities or associated with an issuer of securities. 15 USCA 78(a}(21), (49). [Cases: Securities Regulation ~40.12.] 2. A natural person who is a partner, officer, director, or employee of: (1) the issuer; (2) a general partner ofa limited partnership issuer; or (3) a company or partnership that controls, is controlled by, or is under common control with the issuer. Cf. AFFILIATE (2). associate judge. See JUDGE. associate justice. See JUSTICE (2). association-in-fact enterprise association. (16c) 1. The process of mentally collecting ideas, memories, or sensations. 2. A gathering ofpeople for a common purpose; the persons so joined. 3. An unincorporated organization that is not a legal entity separate from the persons who compose it . If an association has sufficient corporate attributes, such as centralized management, continuity ofexistence, and limited liability, it may be classified and taxed as a cor poration. -Also termed unincorporated association; voluntary association. [Cases: Associations 1.] beneficial association. See benevolent association. benefit association. See benevolent association. benevolent association. An unincorporated, nonprofit organization that has a philanthropic or charitable purpose. -Also termed beneficial association; benefit association; benevolent society; fraternal society; friendly society. [Cases: Associations homeowners' association. 1. An association ofpeople who own homes in a given area and have united to improve or maintain the area's quality. [Cases: Associ ations ~1; Condominium (:;::::>8.] 2. An association formed by a land developer or homebuilder to manage and maintain property in which the developer or the builder owns an undivided common interest. Homeowners' associations which are regulated by statute in many states -are commonly formed by restrictive covenant or a declaration ofrestrictions. Also spelled homeowners association. -Also termed owners' association. nonprofit association. A group organized for a purpose other than to generate income or profit, such as a sci entific, religiOUS. or educational organization. [Cases: Associations ~1; Charities ~1, 39. 46.] owners' association. 1. See homeowners' association. 2. See OWNERS' ASSOCIATION. professional association. (1837) 1. A group of profes sionals organized to practice their profession together. though not necessarily in corporate or partnership form. 2. A group ofprofeSSionals organized for educa tion, social activity. or lobbying, such as a bar associa tion. -Abbr. P.A. [Cases: Attorney and Client 31; Health ~295.] trade association. (1909) An association of business organizations having similar concerns and engaged in similar fields, formed for mutual protection, the interchange ofideas and statistics, and the establish ment and maintenance of industry standards. A trade association may be composed of members of a Single industry (e.g., the Chemical Manufacturers Association) or members having a common interest or purpose (e.g., the Consumer Mortgage Coalition). Among the joint actions that a trade association often takes are conecting industry data, advertiSing, mar keting, and engaging in public relations and govern ment relations. association-in-fact enterprise. Under RICO, a group of people or entities that have not formed a legal entity. but that have a common or shared purpose, and maintain 142 Association of American Law Schools an ongoing organizational structure through which the associates function as a continuing unit. A RICO violation is not shown merely by proving that an enter prise, including an association-in-fact, exists. A pattern of racketeering activity must also be proved. 18 USCA 1961(4); United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524 (1981). [Cases: Racketeer Influenced and Corrupt Organizations (::=>36.] Association ofAmerican Law Schools. An organization of U.S. law schools that have each

Organizations (::=>36.] Association ofAmerican Law Schools. An organization of U.S. law schools that have each graduated at least three annual classes of students. -Abbr. AALS. Association of Legal Writing Directors. A nonprofit corporation composed of the directors and former directors oflaw-schoollegal-writing programs, mostly in the United States. Created in 1996 to improve those programs, it supports research and scholarship; holds a biennial conference; conducts (with the Legal Writing Institute) an annual survey of the programs; maintains a listserv; represents writing teachers before the American Bar Association; and publishes various resources, including the ALWD Citation Manual. - Abbr. ALWD (aI-wid). See ALWD CITATION MANUAL. assoil (<I-soyt), vb. [l.aw French] Hist. To acquit or absolve; to deliver from excommunication. -Also spelled assoi/e. Also termed absoile; (Issoilyie. assultus premeditatus. See assault purpense under ASSAULT. assumed bond. See guaranteed bond (1) under BOND (3). assnmed name. (17c) 1. ALIAS (1). 2. The name under which a business operates or by which it is commonly known <Antex Corporation's assumed name is Computer Warehouse> . Many states require an indi vidual or business operating under an assumed name to file an assumed-name certificate, usu. in the secretary of state's office or the county clerk's office where the principal place of business is located. -Also termed fictitious name. See D/B/A. Cf. corporate name under NAME. [Cases: Corporations ~46.1 assume or reject. Bankruptcy. (Of a debtor-in-possession or a trustee) to make an election under the Bankruptcy Code concerning an executory contract or an unex pired lease within a prescribed period, depending on the chapter of the Code under which the case is pro ceeding and the subject matter of the contract . The timing, procedure, and consequences of the election are described in 11 USCA 365. [Cases: Bankruptcy ~3102.1.] assumpsit (;J-sam[p]-sit). fLaw Latin "he undertook"] (16c) 1. An express or implied promise, not under seal, by which one person undertakes to do some act or pay something to another <an assumpsit to pay a debt>. 2. A common-law action for breach of such a promise or for breach of a contract <the creditor's assumpsit against the debtor>. [Cases: Assumpsit, Action of~ 1.] "It was early known as 'trespass on the case upon promises,' but in time came to be designated assumpsit (he assumed or promised), and lies for damages for breach of all contracts, parol or simple, whether written or verbal, express or implied." Edwin E. Bryant, The Law of Pleading Under the Codes ofCivil Procedure 9-10 (2d ed. 1899). "In its origin an action of tort, [assumpsit] was soon trans formed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract. Based at first only upon an express promise, it was afterwards supported upon an implied promise, and even upon a ficti tious promise. Introduced as a special manifestation of the action on the case, it soon acquired the dignity of a distinct form of action, which superseded Debt, became concurrent with Account, with Case upon a bailment, a warranty, and bills of exchange, and competed with Equity in the case of the essentially equitable quasi-contracts growing out of the principle of unjust enrichment. Surely, it would be hard to find a better illustration of the flexibility and power of self development of the Common Law:' James Barr Ames, "The History ofAssumpsit," in 3 Select Essavs in Anglo-American Legal Historv 298 (1909). general assumpsit. (18c) An action based on the defen dant's breach of an implied promise to pay a debt to the plaintiff. -Also termed common assumpsit; indebitatus assumpsit. [Cases: Assumpsit, Action of "General assumpsit is brought for breach of a fictitious or implied promise raised by law from a debt founded upon an executed consideration. The basiS of the action is the promise implied by law from the performance of the con sideration. or from a debt or legal duty resting upon the defendant." Benjamin J. Shipman, Handbook of Common Law Pleading 59, at 153 (Henry Winthrop Ballantine ed., 3d ed. 1923). "[TJhe word 'assumpsit' suggest[s] the making of a promise. While that is true in the case of the action of special assump sit, the promise alleged in the action of general assumpsit was only a fiction. Accordingly in the latter action, the word 'assumpsit' no more means that an obligation exists as the result of making a contract, than that a contract is involved because the obligation is described as quasi-contractual." Charles Herman Kinnane, A First Book on AngloAmerican Law 633-34 (2d ed. 1952). indebitatus assumpsit (in-deb-i-tay-tds a-sam[p]-sit). [Latin "being indebted, he undertook"]!. A form of action in which the plaintiff alleges that the defen dant contracted a debt and, as consideration, had undertaken (Le., promised) to pay . 1he action was eqUivalent to the common-law action for debt (an action based on a sealed instrument), but could be used to enforce an oral debt. In England, indebitatus assumpsit was abolished in 1873 by the Judicature Act. But it is still used in several American states, such as California. See CONCESSIT SOLVERE. 2. See general assumpsit. "[I]f I verbally agree to pay a man a certain price for a certain parcel of goods, and fail in the performance, an action of debt lies against me; for this is a determinate contract: but if I agree for no settled price, I am not liable to an action of debt, but a special action on the case, accord ing to the nature of my contract. And indeed actions of debt are now seldom brought but upon special contracts under seal .... [Tlhe plaintiff must recover the whole debt he claims, or nothing at all. For the debt is one single cause of action, fixed and determined; and which therefore, if the proof varies from the claim, cannot be looked upon as the same ... action of debt .... But in an action on the case, on what is called an indebitatus assumpsit, which is not brought to compel a specific performance of the 143 contract, but to recover damages for its non-performance, the implied assumpsit, and consequently the damages for the breach of it, are in their nature indeterminate; and will therefore adapt and proportion themselves to the truth of the case which shall be proved, without being confined to the precise demand stated in the declaration." 3 William Blackstone, Commental'ies on the Laws of England 154 (1768). special assumpsit. An action based on the defendant's breach ofan express contract. -Also termed express assumpsit. [Cases: Assumpsit, Action ofC=6.] "Special assumpsit lies for the recovery of damages for the breach of simple contract, either express or implied in fact. The term 'special contract' is often used to denote an express ~r explicit contract as contrasted with a promise implied in law." Benjamin J. Shipman, Handbook of Com monLaw Pleading 58, at 148 (Henry Winthrop Ballantine ed., 3d ed. 1923). "From the allegations concerning the 'assumpsit,' a new action which split off from the action on the case came to be known as the action of assumpsit. Since, however, the plaintiff had to allege and prove a specific or special promise, in order to get a judgment, the action came to be known as the action of 'special assumpsit.' When the special promise came to be regarded as the basis of the action, the action came to be regarded as a contract action, rather than one based on unclassified 'wrongs.'" Charles Herman Kinnane, A First Book on Anglo-American Law 633-34 (2d ed. 1952). assumption, n. (l3c) 1. A fact or statement taken as true or correct; a supposition <a logical assumption>. 2. The act of taking (esp. someone else's debt or other obligation) for or on oneself; the agreement to so take <assumption ofa debt>. -assume, vb. assumption ofmortgage or trust deed. The acquisi tion of real property coupled with the assumption of personal liability for debt secured by that property. [Cases: Mortgages C=279.] implied assumption. (1852) The imposition ofpersonal liability on a land purchaser who buys subject to a mortgage and who deducts the mortgage amount from the purchase price, so that the purchaser is treated as having assumed the debt. [Cases: Mort gages C=279.] assumption clause. 1. A mortgage provision that pro hibits another from assuming the mortgage without the permission of the mortgagee. [Cases: Mortgages C::>272.] 2. A provision by which the transferee of an instrument agrees to assume an obligation ofthe trans feror. assumption fee. A lender's charge for processing records for a new buyer's assumption of an existing mortgage. [Cases: Mortgages C=>279.J assumption of mortgage or trust deed. See ASSUMP TION. assumption of the risk. (1824) Torts. 1. The act or an instance of a prospective plaintiff's taking on the risk of loss, injury, or damage <the skydiver's assumption ofthe risk>. -Also termed assumption ofrisk. [Cases: Negligence "[Assumption of risk] has been a subject of much con troversy, and has been surrounded by much confusion, assumption of the risk because 'assumption of risk' has been used by the courts in several different senses, which traditionally have been lumped together under the one name, often Without realiz ing that any differences exist. There are even courts which have limited the use of the term 'assumption of risk' to cases in which the parties stand in the relation of master and servant, or at least some other contractual relation; but they have been compelled to invent other names for other cases, such as 'incurred risk,' or 'volenti non fit injuria.' This appears to be largely a distinction without a differ ence; and most courts have made general use of the one term.... In its most basiC sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone." W. Page Keeton et aI., Prosser and Keeton on the Law of Torts 68, at 480-81 (5th ed. 1984). 2. The principle that one who takes on the risk of loss, injury, or damage cannot maintain an action against a party that causes the loss, injury, or damage <assump tion ofthe risk was not a valid defense> . Assumption ofthe risk was originally an affirmative defense, but in most jurisdictions it has now been wholly or largely subsumed by the doctrines ofcontributory or compara tive negligence. Ihe risk assumed by the person was often termed an incurred risk. implied assumption ofthe risk. An assumption based on the plaintiff's conduct that seems to consent to relieve another ofliability for negligence . For this defense to apply, the plaintiffs conduct must suggest (1) open consent to the risk, (2) voluntary participa tion in the activity, and (3) full understanding of the danger. See VOLENTI NON FIT INJURIA. primary assumption ofthe risk. A legal conclusion that the defendant was not negligent because the defen dant either did not owe a duty of care to the injured party or did not breach any duty owed. Courts decide questions of duty through policy judgments, which include the relative balance between risks and utilities. [Cases: Negligence (;~554.4.] "Primary assumption of risk occurs when the plaintiff voluntarily participates in an activity involving certain inherent risks and encounters one of the inherent risks; the defense is a complete bar to recovery because there is no duty of care to protect another from the risks inherent in a voluntary activity." 4 Ann Taylor Schwing, California Affirmative Defenses 2d 48:24, at 59 (1996). "Primary assumption of risk is sometimes viewed as a misnomer. This concept is frequently described as a noduty rule because the plaintiff, by engaging in a known and potentially risky activity, has relieved the defendant of the duty of care normally owed to the plaintiff. Under the primary-assumption-of-risk/noduty doctrine, 'there [would bel no liability because the defendant did not breach a duty of care to the plaintiff.' [Kenneth S. Abraham, The Forms and Functions of Tort Law 155 (1997).] Traditionally, the no-duty rule completely bars a plaintiff's recovery. Courts limit the use of primary assumption of risk in com parative negligence jurisdictions because of the harshness of this rule. Recently, some comparative-negligence jurisdictions have started to review primary assumption-of-risk claims within the framework of their comparativefault system, refusing to automatically bar the plaintiff's entire recovery." Luke Ellis, Note, Talking About My Generation: Assumption ofRisk and the Rights ofInjured Concert Fans in the Twenty First Century, 80 Texas L. Rev. 607, 618 (2002). secondary assumption ofrisk. 1. The act or an instance of voluntarily encountering a known unreasonable risk that is out ofproportion to any advantage gained . With secondary assumption

of voluntarily encountering a known unreasonable risk that is out ofproportion to any advantage gained . With secondary assumption of the risk, the fact finder considers the reasonableness of the plaintiff's conduct in the particular case, balancing the risks and utilities under the circumstances. 2. An affirmative defense to an established breach ofa duty, based on a claim that the plaintiff acted unreasonably in encoun tering a known risk. See contributory negligence under NEGLIGENCE. [Cases: Negligence (;:::>554.4.] voluntary assumption ofthe risk. An intentional and unreasonable exposure ofoneself to danger created by another's negligence, when one knows or has reason to know of the danger. assurance, n. (14c) 1. Something that gives confidence; the state ofbeing confident or secure <self-assurance>. 2. English law. See life insurance under INSURANCE <she obtained assurance before traveling abroad, naming her husband as the beneficiary>. 3. The act oftransfer ring real property; the instrument by which it is trans ferred <the owner's assurance of the farm to his son>. 4. A pledge or guarantee <adequate assurances of the borrower's solvency>. assure, vb. adequate assurance. 1. Contracts. A circumstance or a contractual obligor's act that gives an obligee reason to be confident that the contract will be duly performed. Ifthe obligee has good reason to feel insecure and justifiably demands assurance, an obligor's failure to provide adequate assurance may constitute a repudia tion of the contract. UCC 2-609. [Cases; Sales 152, 184.] 2. Bankruptcy. Evidence that a debtor will probably be able to perform its obligations under a contract, such as the posting of a bond or a showing that the debtor will generate sufficient income to pay any arrearages and future payment obligations. [Cases; Bankruptcy (;:::>2481,3114.] collateral assurance. A pledge made in addition to the principal assurance of an agreement. common assurance. See MUNIMENT OF TITLE. further assurance. (17c) A covenant, usu. contained in a warranty deed, whereby the grantor promises to execute any document that might be needed in the future to perfect the title that the original instrument purported to transfer. assured, n. Insurance. One who is indemnified against loss; INSURED. [Cases: Insurance (;:::>2100.J assurer. See LNSURER. as their interests may appear. See A TIMA. astipulation (as-tip-Yd-Iay-sh;m). Archaic. Agreement; assent. astitution (as-t;l-t[yjoo-sh;m). Archaic. See ARRAIGN MENT. astrarius (as-trair-ee-ds), n. [Law Latin "hearth owner"] Hist. The owner or occupant ofa house. Also termed astrer (as-trdr). See heres astrarius under HERES. astronomical day. See solar day (2) under DAY. asylee (d-5I-Iee). A refugee applying for asylum; an asy lum-seeker. [Cases: Aliens, Immigration, and Citizen ship (;:::>504-543.] asylum. (15c) 1. A sanctuary or shelter. 2. Protection of usu. political refugees from arrest by a foreign juris diction; a nation or embassy that affords such protec tion. Also termed political asylum. [Cases: Aliens, Immigration, and Citizenship (;::=504-543.] 3. An institution for the protection and relief of the unfor tunate, esp. the mentally ilL Also termed (in sense 3, archaically) insane asylum. [Cases: Asylums and Assisted Living Facilities (;:::> 10; Mental Health 31.] atamita (;l-tam-i-td), n. [Latin] Civil law. A great-great great-grandfather's sister. at arm's length. See ARM'S-LENGTH. atavia (;l-tay-vee-;l), n. [Latin] Roman & civil law. A great-great-great grandmother. atavunculus (at-d-v<lngk-y;J-I;lS), n. (Latin] Civil law. A great-great-great-grandfather's brother. atavus (at-;l-V;JS), n. [Latin] Roman & civil law. The male ascendant in the fifth degree; a great-grandfather's or great-grandmother's grandfather; a fourth grandfa ther. at bar. (l7c) Now before the court <the case at bar>. Also termed at bench; at the bar . at bench. See AT BAR. at equity. According to equity; by, for, or in equity. a terme (a tairm). [Law French] For a term. a terme de sa vie (a tairm dd sa vee). [Law French] For the term ofhis life. a terme que n'est mye encore passe (a tairm b nay mee awn-kor pahs). [Law French] For a term that has not yet passed. a terme que passe est (a tairm b pahs ay). [Law French] For a term that has passed. ATF. abbr. BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES. Atilian law. See LEX ATILIA. ATIMA (;Hee-m;l). abbr. As their interests may appear. The phrase is sometimes used in insurance policies to show that the named insured has an interest, usu. an unspecified one, in the property covered by the policy and is entitled to benefits to the extent of that interest. The phrase is also used in a policy's mortgage clause to protect the mortgagee's real-property interest. See INSURABLE INTEREST; MORTGAGE CLAUSE. [Cases: Insurance (;:::> 3450.] Atinian law. See LEX ATINIA. at issue. (18c) Taking opposite sides; under dispute; in question <the federal appeals courts are at issue over a question oflaw>. at-issue waiver. (1985) An exemption from the attorney client privilege, whereby a litigant is considered to have waived the privilege by taking a position that cannot 145 be effectively challenged without analyzing privileged information. Cf. OFFENSIVE-USE WAIVER. [Cases: Privi leged Communications and Confidentiality (::::'j 168.] Atlantic Reporter. A set of regionallawbooks, part of the West Group's National Reporter System, containing every published appellate decision from Connecticut, Delaware, Maine, Maryland, New Hampshire, New Jersey, Pennsylvania, Rhode Island, and Vermont, as well as the decisions of the District of Columbia Munic ipal Court of Appeals, from 1885 to date . The first series ran from 1885 to 1938; the second series is the current one. -Abbr. A.; A.2d. at large. (14,) 1. Free; unrestrained; not under control <the suspect is still at large>. 2. Not limited to any particular place, person, matter, or question <at-large election>. 3. Chosen by the voters ofan entire political entity, such as a state, county, or city, rather than from separate districts within the entity <council member at large>. 4. Not ordered in a topical way; at random <statutes at large>. 5. Fully; in detail; in an extended form <there wasn't time to discuss the issue at large>. at-large election. See election at large under ELECTION. at law. (16c) According to law; by, for, or in law. atmatertera (at-may-tar-tar-a), n. [Latin] Civil law. A great-great-great-grandmother's sister. Also termed abmatertera magna (ab-may-tar-tdr-d mag-nd). at maturity. See date ojmaturity under DATE. atort (a-tor), adv. [Law French] Hist. Wrongfully. a tort et a travers (a tor tay a tra-vair). [Law French] Without consideration or discernment. a tort ou a droit (a tor 00 a drwah). [Law French) Right or wrong. at par, adj. (Of a stock or bond) issued or selling at face value. . atpatruus (at-pa-troo-dS), n. [Latin] Civil law. A brother ofa great-great-grandfather. at-pleasure appointment. See pleasure appointment under APPOINTMENT (1). at-risk rules, n. pl. (1977) Statutory limitations ofa tax payer's deductible losses to the amount the taxpayer could actually lose, to prevent the taxpayer from shel tering income. [Cases: Internal Revenue (::::'3389.] atrocious assault. See ASSAULT. atrocious felony. See FELONY. ATS. abbr. At the suit of. ATSDR. abbr. AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY. attach, vb. (14c) 1. To annex, bind, or fasten <attach the exhibit to the pleading>. 2. To take or seize under legal authority <attach the debtor's assets>. [Cases: Attach ment 1; Federal Civil Procedure (;:::::>581.] 3. To become attributed; to adhere <jeopardy attaches when the jury is sworn>. attachment attache (at-<l-shay or a-ta-shay), n. A person who serves as a technical adviser to an embassy. [Cases: Ambas sadors and Consuls attachiamenta bonorum (<l-tach-ee-<l-men-t<l b<l-nor-<lm), n. [Law Latin] Hist. A distress taken on goods and chattels by bailiffs, as security to answer an action for debt. attachiamentum (a-tach-ee-d-men-t<lm), n. [Law Latin] An attachment. PI. attachiamenta. attaching creditor. See CREDITOR. attachment. (14c) 1. The seizing of a person's property to secure a judgment or to be sold in satisfaction of a judgment. -Also termed (in civil law) proviSional seizure. Cf. GARNISHMENT; SEQUESTRATION (1). [Cases: Attachment 1; Federal Civil Procedure C:='581 590.] attachment ofwages. The attachment by a plaintiff of a defendant's earnings as an employee . In some juris dictions, an attachment-of-earnings order requires the defendant's employer to deduct a specified sum or percentage of the defendant's wages or salary and to pay the money into court. The court then sends the money to the plaintiff. Federal law provides a garnish ment statute for satisfaction of judgments for child support and alimony. Under this statute, up to 50% of a wage-earner's disposable income can be seized if the wage-earner has another family of dependents and up to 60% if there is only one family. Ifthe obligor is more than three months in arrears, an additional 5% can be seized until the arrearage is paid. 15 USCA 1673(b)(2). -Also termed attachment ojearnings; wage-Withholding; automatic wage-withholding; wage assignment. Cf. GARNISHMENT; INCOME-WITHHOLD ING ORDER. [Cases: Execution C:='420.5; Garnish ment C'::::> 1.] prejudgment attachment. An attachment ordered before a case is decided. Cf. provisional attachment . provisional attachment. A prejudgment attachment in which the debtor's property is seized so that if the creditor ultimately prevails, the creditor will be assured of recovering on the judgment through the sale of the seized property . Ordinarily, a hearing must be held before the attachment takes place, and most courts require the creditor to post a bond for any damages that result from the seizure (esp. if the creditor ultimately loses in the lawsuit). Cf. prejudg ment attachment. 2. The arrest of a person who either is in contempt of court or is to be held as security for the payment of a judgment. [Cases: Contempt C:='56; Execution C~421; Federal Civil Procedure C'-::>27 14.] 3. A writ ordering legal seizure of property (esp. to satisfy a creditor's claim) or of a person. -Also termed writ ojattach ment. [Cases: Attachment Federal Civil Pro cedure C:='581.] ancillary attachment. An attachment that results in seizure and holding ofproperty pending a resolution 146 attachment bond ofthe plaintiff's claim. Also termed attachment on mesne process. [Cases: Attachment 4. The creation ofa security interest in property, occur ring when the debtor agrees to the security, receives value from the secured party, and obtains rights in the collateral. DCC 9-203. Cf. PERFECTION. [Cases: Secured Transactions <>::: 133.] 5. The act ofaffixing or connecting; something (as a document) that is affixed or connected to something else. attachment bond. See BOND (2). attachment lien. See LIEN. attachmen.t ofearnings. See attachment ofwages under ATTACHMENT (1). attachment ofrisk. (I900) The point when the risk ofloss ofpurchased goods passes from the seller to the buyer. DCC 2-509. [Cases: Sales ~198.] attachment ofwages. See ATTACHMENT (1). attachment on mesne process. See ancillary attachment under ATTACH

ofwages. See ATTACHMENT (1). attachment on mesne process. See ancillary attachment under ATTACHMENT (3). attainder (;J-tayn-d;Jr), n. (1Sc) 1. At common law, the act of extinguishing a person's civil rights when that person is sentenced to death or declared an outlaw for committing a felony or treason. 2. Hist. A grand jury proceeding to try whether a jury has given a false verdict. 3. 1he conviction ofa jury so tried. See BILL OF ATTAINDER. -attaint (;J-taynt), vb. "The word attainder is derived from the Latin term aUine tus, Signifying stained or polluted, and includes, in its meaning, all those disabilities which flow from a capital sentence. On the attainder, the defendant is disqualified to be a witness in any court; he can bring no action, nor perform any of the legal functions which before he was admitted to discharge; he is, in short, regarded as dead in law." 1 Joseph Chitty, A Practical Treatise on the Criminal Law 725 (2d ed. 1826). attaint (;J-taynt), adj. (14c) Maligned or tarnished repu tationally; under an attainder for crime. . attaint, n. Hist. A writ to inquire whether a 12-member jury gave a false verdict. -Ifit was so found (by a 24-member jury), the judgment based on the verdict was overturned. The writ was abolished in England in 1826. attempt, n. (16c) 1. The act or an instance ofmaking an effort to accomplish something, esp. without success. 2. Criminal law. An overt act that is done with the intent to commit a crime but that falls short of completing the crime. _ Attempt is an inchoate offense distinct from the intended crime. Under the Model Penal Code, an attempt includes any act that is a substantial step toward commission ofa crime, such as enticing, lying in wait for, or following the intended victim or unlaw fully entering a building where a crime is expected to be committed. Model Penal Code 5.01. -Also termed criminal attempt; offer. See DANGEROUS-PROXIMITY TEST; INDISPENSABLE-ELEMENT TEST; LAST-PROXI MATE-ACT TEST; PHYSICAL-PROXIMITY TEST; PREPARA TION; PROBABLE-DESISTANCE TEST; RES IPSA LOQUITUR TEST; PREPARATION; SUBSTANTIAL-STEP TEST. Cf. CONSPIRACY; SOLICITATION (2). [Cases: Criminal Law 44.J attempt, vb. "An attempt to commit an indictable offence is itself a crime. Every attempt is an act done with intent to commit the offence so attempted. The existence of this ulterior intent or motive is the essence of the attempt .. , . (Yet] raj Ithough every attempt is an act done with intent to commit a crime, the converse is not true. Every act done with this intent is not an attempt, for it may be too remote from the completed offence to give rise to criminal liability, not withstanding the criminal purpose of the doer. I may buy matches with intent to burn a haystack, and yet be clear of attempted arson; but if I go to the stack and there light one of the matches, my intent has developed into a criminal attempt." John Salmond, Jurisprudence 387 (Glanville L. Williams ed., 10th ed. 1947). "Attempt ... is the most common of the preliminary crimes. It consists of steps taken in furtherance of an indictable offence which the person attempting intends to carry out if he can. As we have seen there can be a long chain of such steps and it is necessary to have some test by which to deCide that the particular link in the chain has been reached at which the crime of attempt has been achieved; that link will represent the actus reus of attempt ...."J.W. Cecil Turner, Kenny's Outlines of Criminal Law 79 06th ed.1952). attempted assault. See ASSAULT. attempted marriage. See void marriage under MARRIAGE (1). attempted monopolization. See MONOPOLIZATION. attempted suicide. See SUICIDE. attempt to assault. See attempted assault under ASSAULT. attempt to attempt. (1903) A first step made toward a criminal attempt of some sort, such as a failed effort to mail someone a note inciting that person to engage in criminal conduct. _ As a general rule, courts do not recognize an attempt to commit a crime that is itself an attempt. But some jurisdictions recognize this offense, esp. when the attempted crime is defined to be an independent substantive crime. For example, some jurisdictions recognize an attempted assault if assault is defined as placing a person in apprehension ofbodily injury (as opposed to being defined merely as an attempted battery). In this situation, courts have been willing to punish conduct that falls short of the attempted crime but constitutes more than mere preparation to commit it. See attempted assault under ASSAULT. [Cases: Criminal Law ~44.] attendance officer. See TRUANCY OFFICER. ! attendant, adj, (lSc) Accompanying; resulting <atten dant circumstances>. attendant circumstance. See CIRCUMSTANCE. attendant term. See TERM (4). attentate (d-ten-tayt), 11. His!. 1. A criminal attempt. 2. An assault. 3. An erroneous step taken by a lower-court judge after a case has been stayed or appealed. attenuation doctrine (<l-ten-Yd-way-sh,m). (1962) Criminal procedure. The rule providing that evidence obtained by illegal means may nonetheless be admis I sible if the connection between the evidence and the 147 illegal means is sufficiently attenuated or remote. This is an exception to the fruit-of-the-poisonous tree doctrine. See FRUlT-OF-THE-POISONOUS-TREE DOCTRINE. [Cases: Criminal Law <:;::>394.1(3).] atterminare (a-tar-mi-nair-ee), vb. [Law Latin] 1. To put off to a succeeding term; to adjourn. 2. To prolong the time to pay a debt. atterminement (a-tar-min-mant). 1. The granting of a delay for some purpose; esp., the extension of time to pay a debt. 2. The fixing of a time limit. attermine, vb. attermoiement (at-af-moy-a-mant). [Law FrenchJ Eccles. law. COMPOSITION (1). attest (a-test), vb. (16c) 1. To bear witness; testify <attest to the defendant's innocence>. 2. To affirm to be true or genuine; to authenticate by signing as a witness <attest the will>. [Cases: Wills C=> 113.] attestation (a-te stay-shan), n. attestative (;J-tes-td-tiv), adj. attestation clause. (18c) A provision at the end of an instrument (esp. a will) that is signed by the instru ment's witnesses and that recites the formalities required by the jurisdiction in which the instrument might take effect (such as where the will might be probated). The attestation strengthens the presump tion that all the statutory requirements for executing the will have been satisfied. -Also termed witness ing part. Cf. TESTIMONIUM CLAUSE. [Cases: Wills 113.] attested copy. See certified copy under COPY. attested will. See WILL. attester (a-tes-tdr). One who attests or vouches for. Also spelled attestant; attestator; attestor. attesting witness. See WITNESS. at the bar. See AT BAR. at the courthonse door. (Of the posting of a notice of judicial sale, etc.) on the courthouse door, or in direct proximity to the door, as on a bulletin board that is located just outside the door and that is regularly used for the posting of legal notices . Some statutes may specify that the notice be actually posted on the door. See POSTING (5). at-the-market price. See PRICE. attorn (;)-tarn), vb. (Isc) l. To agree to be the tenant of a new landlord. -Also termed attorn tenant. [Cases: Landlord and Tenant Is.J 2. To transfer (money, goods, etc.) to another. attornatus (at-df-nay-tds). [Law LatinJ One who is attorned, or put in the place ofanother; an attorney. attorney. (14c) 1. Strictly, one who is designated to transact business for another; a legal agent. -Also termed attorney-in-fact; private attorney. 2. A person who practices law; LAWYER. Also termed (in sense 2) attorney-ai-law; public attorney. Cf. COUNSEL (2). Abbr. att'y. PI. attorneys. [Cases: Attorney and Client (:::::>63.J attorney associate attorney. 1. See ASSOCIATE (2). 2. Patents. An attorney who is registered to practice before the U.S. Patent and Trademark Office, who has been appOinted by a principal attorney, and who is autho rized to prosecute a patent application through the filing of a power of attorney. [Cases: Patents C'='97.] attorney ad litem (ad II-tern or -t;)m). A court appointed lawyer who represents a child during the course of a legal action, such as a divorce, termina tion, or child-abuse case. _ The attorney owes to the child the duties ofloyalty, confidentiality, and compe tent representation. A child'8 right to legal representa tion in a juvenile proceeding was mandated in In re Gault, 387 U.S.!, 87 S.Ct. 1428 (1967). The appoint ment ofan attorney ad litem is a limited one --only for a specific lawsuit. -Also termed child's attorney; attorney for the child. Cf. guardian ad litem under GUARDIAN. [Cases: Infants (:::::>j90.] attorney not ofrecord. 1. A lawyer who is not recog nized as a party's legal representative. Cf. attorney ofrecord (1). [Cases: Attorney and Client C=>72.] 2. Patents & trademarks. An attorney whose name is not included in a power of attorney on file with the u.s. Patent and Trademark Office for a patent or trade mark application. An attorney not of record may nevertheless prosecute a patent application if regis tered to practice before the U.S. Patent and Trade mark Office and appointed by the principal attorney. 37 CFR 1.34(a). Cf. attorney not recognized. attorney not recognized. Patents. An attorney appointed by a patent applicant but not registered to practice before the U.S. Patent and Trademark Office. A power of attorney appointing an unregistered attorney is void. Cf. attorney not ofrecord. [Cases: Patents (;:::::>97.] attorney ofrecord. 1. The lawyer who appears for a party in a lawsuit and who is entitled to receive, on the party's behalf, all pleadings and other formal docu ments from the court and from other parties. -Also termed counsel ofrecord. See OF RECORD (1). [Cases: Appearance (>:::>3.J 2. Patents & Trademarks. The attorney or agent whose name is included in the power of attorney filed by an applicant for a patent or a trademark registration . For a patent applica tion, the attorney of record must be a patent attorney or a patent agent. [Cases: Patents C=>97.) briefing attorney. 1. An attorney who specializes in brief-writing, particularly appellate briefs and legal memoranda. 2. CLERK (5). panel attorney. (1951) A private attorney who rep resents an indigent defendant at the government's expense. A panel attorney is usu. a member of an affiliated list and aSSigned by a court to a particular client. research attorney. 1. An attorney who specializes in proViding legal support by researching, by writing memoranda, and by preparing drafts ofdocuments. 2. CLERK (5). -In some jurisdictions, a research attorney 148 attorney, power of is a midlevellaw clerk, above a briefing attorney but below a staff attorney. settlement attorney. An attorney who specializes in negotiating resolutions for disputes, such as pending lawsuits, or in finalizing negotiated transactions, such as real-property sales. Sometimes also termed (in real-property sales) settlement agent. special attorney. See special counsel under COUNSEL. staffattorney. (1934) 1. A lawyer who works for a court, usu. in a permanent position, on matters such as reviewing motions, screening docketing state ments, preparing scheduling orders, and examin ing habeas corpus petitions. -Staff attorneys do not rule on motions or decide cases, but they review and research factual and legal points, and recommend proposed rulings to judges, as well as drafting the orders implementing those rulings. See CLERK (5). [Cases: Courts (;::::;)55.] 2. An in-house lawyer for an organization, esp. a nonprofit organization but some times for a corporation. Cf. in-house counsel under COUNSEL. 3. A lawyer who works for a law firm and performs the functions ofan associate but who is not on a partnership track. attorney, power of. See POWER OF ATTORNEY. attorney-at-law. See ATTORNEY (2). attorney-client privilege. See PRIVILEGE (3). attorney-client relationship. See RELATIONSHIP. attorney fees

ge. See PRIVILEGE (3). attorney-client relationship. See RELATIONSHIP. attorney fees. See ATTORNEY'S FEES. attorney for the child. See attorney ad litem under ATTORNEY. attorney general. (l6c) The chieflaw officer ofa state or of the United States, responsible for advising the gov ernment on legal matters and representing it in liti gation. _ "General" is a postpositive adjective, not an honorific, so the title should not, strictly speaking, be shortened. -Abbr. AG. PI. attorneys general. [Cases: Attorney General attorney general's opinion. (1808) 1. An opinion fur nished by the U.S. Attorney General to the President or another executive official on a request concerning a question oflaw. [Cases: Attorney General ~6.1 2. A written opinion by a state attorney general, usu. given at the request of a public official, interpreting a legal provision. attorney in charge. See lead counsel (1) under COUNSEL. attorney-in-fact. See ATTORNEY (1). attorney malpractice. See legal malpractice under MAL PRACTICE. attorney not ofrecord. See ATTORNEY. attorney not recognized. See ATTORNEY. attorney of record. See ATTORNEY. Attorneys and Agents Registered to Practice Before the U.S. Patent and Trademark Office. A PTO publication listing all registered patent attorneys and agents by name and location. attorney's fees. (i8c) The charge to a client for services performed for the client, such as an hourly fee, a flat fee, or a contingent fee. -Also spelled attorneys'fees. Also termed attorney fees. Cf. RETAINER (2). [Cases: Attorney and Client (;:::::' 137, 142.1, 146.1.] attorney's lien. See LIEN. attorney-witness rule. See LAWYER-WITNESS RULE. attorney work product. See WORK PRODUCT. attorney-work-product privilege. See WORK-PRODUCT RULE. attornment (;l-tarn-mant), n. (16c) 1. A tenant's agree ment to hold the land as the tenant of a new landlord. [Cases: Landlord and Tenant C=-':-15.]2. A constructive delivery involVing the transfer of mediate possession while a third person has immediate possession; esp., a bailee's acknowledgment that he or she will hold the goods on behalf ofsomeone other than the bailor. -For the other two types of constructive delivery, see CON STITUTUM POSSESSORIUM; TRADITIO BREVI MANU. attorn, vb. "[Another] form of constructive delivery is that which is known to English lawyers as attornment .... The mediate possessor of a thing may deliver it by procuring the imme' diate possessor to agree with the transferee to hold it for the future on his account, instead of on account of the transferor. Thus if I have goods in the warehouse of A and sell them to B, I have effectually delivered them to B so soon as A has agreed with B to hold them for him, and no longer for me." John Salmond, Jurisprudence 306-07 (Glanville L. Williams ed., 10th ed. 1947). attorn tenant. See ATTORN (1). attractive nuisance. See NUISANCE. attractive-nuisance doctrine. (I903) Torts. The rule that a person who owns property on which there is a dangerous thing or condition that will foreseeably lure children to trespass has a duty to protect those children from the danger <the attractive-nuisance doctrine imposed a duty on the school to protect the children from the shallow, polluted pond on school property>. -Also termed turntable doctrine; torpedo doctrine. See ALLUREMENT; DANGEROUS INSTRUMEN TALITY. [Cases: Negligence (;:::>1l72-1178.] attribution, n. The process outlined in the Internal Revenue Code -by which a person's or entity's stock ownership is assigned to a related family member or related entity for tax purposes. Also termed stock attribution. [Cases: Internal Revenue ~3626.1 attribute, vb. attributive, adj. attribution right. Copyright. A person's right to be credited as a work's author, to have one's name appear in connection with a work, or to forbid the use ofone's name in connection with a work that the person did not create. -Attribution rights constitute one aspect of the moral rights recognized primarily in civil-law countries. Under the Visual Artists Rights Act of 1990, the creators of a very limited class of works-called works ofvisual art-have certain statutory attribution rights. 17 USCA 106A. Under the Berne Convention Implementation Act, attribution rights afforded foreign copyright owners may be enforceable in the U.S. Also termed rights ofattribution; paternity; maternity. Cf. INTEGRITY RIGHT; MORAL RIGHT. [Cases: Copyrights and Intellectual Property C=>36.] att'y. abbr. ATTORNEY. ATVEF. abbr. ADVANCED TELEVISION ENHANCEMENT FORUM. at will. (14c) Subject to one's discretion; as one wishes or chooses; esp. (of a legal relationship), able to be ter minated or discharged by either party without cause <employment at will>. at-will employment. See employment at will under EMPLOYMENT. at-will tenancy. See tenancy at will under TENANCY. Atwood doctrine. The principle that, to the extent an ERISA plan and its summary-plan description conflict regarding the circumstances under which benefits may be denied, the summary-plan description controls. Atwood v. Newmont Gold Co., 45 F.3d 1317 (9th Cir. 1995); 29 USCA 1022. See SUMMARY-PLAN DESCRIP TION. [Cases: Labor and Employment C=>483(2).) au besoin (oh bd-zwan). [French "in case of need") A des ignation in a bill ofexchange stating who is responsible for payment if the drawee fails or refuses to pay . For example, au besoin is part ofthe phrase au besoin, chez Messrs. Garnier et DuCloux (meaning "in case ofneed, apply to Messrs. Garnier and DuCloux"). A.U.C. abbr. AB URBE CONDITA. auction, n. (l6c) A public sale ofproperty to the highest bidder. Under UCC 2-328, a sale at auction is ordi narily complete when the auctioneer so announces in a customary manner, as by pounding a hammer. Also termed auction sale. [Cases: Auctions and Auctioneers 1,7.) auction, vb. auction without reserve. An auction in which the property will be sold to the highest bidder, no minimum price will limit bidding, the owner may not withdraw property after the first bid is received, the owner may not reject any bids, and the owner may not nullify the bidding by outbidding all other bidders. In an auction without reserve, the owner essentially becomes an offeror, and each successively higher bid creates a contingent acceptance, with the highest bid creating an enforceable contract. Also termed absolute auction. See WITHOUT RESERVE. [Cases: Auctions and Auctioneers auction with reserve. An auction in which the property will not be sold unless the highest bid exceeds a minimum price. See WITH RESERVE. [Cases: Auctions and Auctioneers C-~7.l Dutch auction. 1. An auction in which property is ini tially offered at an excessive price that is gradually lowered until the property is sold. 2. An auction in which several identical items are offered simultane~ ously, one to a bidder, and sold to the highest bidders for the amount of the lowest winning bid. 3. Secu rities. A method of tendering stock shares whereby a corporation provides a price range, shareholders indicate how many shares they will sell and at what price, and the corporation buys however many shares it wants at the lowest prices offered. -Also termed Dutch-auction tender method. [Cases: Auctions and Auctioneers <::=7.]4. Securities. An auction ofsecuri ties, usu. other than stock, in which a security's price is gradually lowered until it meets an acceptable bid and is sold. 5. Securities. An auction of a new issue of stock in which there is a stated minimum price per share, but bidders may offer a higher price for any number of shares until the highest price offered becomes the final price at which all the shares issued will be sold. -Also termed (in sense 4) offer for sale by tender. knock-out auction. An auction at which two or more bidders have agreed in advance not to bid against one another. At common law, knock-out auctions were not forbidden, on grounds that a person could not be constrained to make an offer. But most jurisdic tions now have statutes that (1) forbid dealers (those who buy at auctions with the intention of reselling to others) from giving or offering an inducement to abstain from bidding at an auction, and (2) penalize the person who seeks such an inducement from a dealer. lCases: Auctions and Auctioneers C=>7.J auctioneer, n. A person legally authorized to sell goods or lands of other persons at public auction for a com mission or fee. The auctioneer is the property owner's agent up to the moment when a purchaser's bid is accepted, when the auctioneer becomes the purchaser's agent. -Formerly also termed vendue master. (Cases: Auctions and Auctioneers auction market. See MARKET. auction sale. See AUCTION. auctor (ahk-tor), n. [Latin "author") 1. The source of a right or title, such as a grantor; AUTHOR (2). 2. A prin cipal. auctore praetore (awk-tor-ee pree-tor-ee). [Latin) 1. Roman law. On the authority of the praetor. 2. Scots law. With the sanction ofa judge. auctorin rem suam (awk-tor in rem s[y]oo-;}m). [Latin) Rist. One who acts on one's own behalf; a principal in one's own affairs. auctoritate judicis (awk-tor-;}-tay-tee joo-di-sis). [Latin) Rist. By judicial authority. audience, n. A hearing before judges. See RIGHT OF AUDIENCE. audience test. Copyright. A judicial analysis used to determine whether the lay observer or an ordinary, reasonable audience would conclude that the protect able expression in a copyrighted work is substantially similar to the expression in the accused work. -Also termed ordinary-observer test; ordinary-lay-observer 150 Audio Home Recording Act test. [Cases: Copyrights and Intellectual Property<:;:=' 53(1).1 Audio Home Recording Act. Copyright. A 1992 federal law designed to prevent copyright-infringement suits based on the manufacture, importation, distribution, or sale of digital-audio technology . Manufacturers ofdigital recording devices must pay royalties on sales of the devices and related media, and build security mechanisms into each device. The security mechanisms allow the owner of a digital-recording device to make a copy from the original medium, but not to make a copy from the copy. 17 USCA 1001-1010. -Abbr. AHRA. Copyrights and Intellectual Property audiovisual work. See WORK (2). audit, n. (15c) A formal examination ofan individual's or organization's accounting records, financial situation, or compliance with some other set of standards. See GENERALLY ACCEPTED AUDITING STANDARDS. audit, vb. auditor, n. audit ofreturn. See tax audit. compliance audit. An audit conducted by a regulatory agency, an organization, or a third party to assess compliance with one or more sets oflaws and regu lations. correspondence audit. An IRS audit of a taxpayer's return conducted by mail or telephone. [Cases: Internal Revenue (:::>4443.] desk audit. A review of a civil-service position to deter mine whether its duties and responsibilities fit the prescribed job classification and pay scale. [Cases: Officers and Public Employees (;:::::c 11.8.: double audit. An audit ofthe same subject performed separately by two independent auditors. environmental audit. A company's voluntary self-audit to evaluate its environmental-management programs and to determine whether it is in compliance with environmental regulations. event-driven audit. An audit that focuses on particu lar transactions or activities that may raise signifi cant legal issues . Unlike routine periodic audits, an event-driven audit can focus substantial auditing resources on analyzing a particular event. field audit. An IRS audit conducted at the taxpayer's business premises, accountant's offices, or lawyer's offices. [Cases: Internal Revenue C~'4443.1 independent audit. An audit conducted by an outside person or firm not connected with the person or orga nization being audited. internal audit. An audit performed by an organiza tion's personnel to ensure that internal procedures, operations, and accounting practices are in proper order. office audit. An IRS audit of a taxpayer's return con ducted in the IRS agent's office. [Cases: Internal Revenue C='4443.) periodic audit. An audit conducted at regular intervals to assess a company's current condition. post audit. An audit of funds spent on

. An audit conducted at regular intervals to assess a company's current condition. post audit. An audit of funds spent on a completed capital project, the purpose being to assess the effi ciency with which the funds were spent and to compare expected cash-flow estimates with actual cash flows. tax audit. The review of a taxpayer's return by the IRS, including an examination of the taxpayer's books, vouchers, and records supporting the return. -Also termed audit ofreturn. [Cases: Internal Revenue 4443.] transactional audit. An audit performed for due diligence purposes to determine whether there are potentially significant problems with a transaction. Transactional audits are often conducted in real property transactions to identify any environmen tal problems. In that context, the audit is sometimes called a site assessment. audita querela (aw-dI-td kWd-ree-Id). [Law Latin "the complaint having been heard"] A writ available to a judgment debtor who seeks a rehearing of a matter on grounds of newly discovered evidence or newly existing legal defenses. [Cases: Audita Querela (;:::::c 1.1 "The writ of audita querela (= quarrel having been heard) ... , introduced during the time of Edward Ill, was available to reopen ajudgment in certain circumstances. It was issued as a remedy to defendant where an important matter concerning his case had arisen since the judgment. Its issue was based on equitable, rather than common law principles." L.B. (urzon, English Legal History 103 (2d ed. 1979). "Audita querela is distinguished from coram nobis in that coram nobis attacks the judgment itself. whereas audita querela may be directed against the enforcement, or further enforcement, of ajudgment which when rendered was just and unimpeachable." 7A c.J.S. Audita Querela 2, at 901 (1980). audit committee. See COMMITTEE. audit letter. A written request for an attorney, banker, or someone else to give financial auditors informa tion about a person or entity being audited, including information about pending or threatened litigation . The recipient ofan audit letter usu. sends the response (called an audit-letter response) directly to the financial auditors. See AUDIT RESPONSE. audit-letter response. See AUDIT RESPONSE. audit of return. See tax audit under AUDIT. audit opinion. See OPINIOK (2). auditor. A person or firm, usu. an accountant or an accounting firm, that formally examines an individ ual's or entity's financial records or status. city auditor. A municipal official responsible for examines a city's accounts and financial records. county auditor. An official who examines a county's accounts and financial records. state auditor. The appointed or elected official respon sible for overseeing state fiscal transactions and 151 auditing state-agency accounts. See AUDIT. [Cases: States C:>76.] audit privilege. In an intellectual-property license agree ment, the right of the licensor to inspect the licensee's books and records. Also termed audit rights. [Cases: Copyrights and Intellectual Property C'"::) 107.] audit report. An independent auditor's written state ment, usu. accompanying a company's financial state ment, expressing the auditor's opinion ofthe accuracy ofthe company's financial condition as set forth in the financial statement. audit respo.nse. A letter that an attorney provides to a client's financial auditors, usu. at the client's request, regarding matters such as pending or threatened litigation. Audit responses should comply with the American Bar Association's Statement of Policy Regarding Lawyer's Responses to Auditors' Requests for Information, published in December 1975. -Also termed audit-letter response. See AUDIT LETTER. audit rights. See AUDIT PRIVILEGE. audit trail. (1954) The chain of evidence connecting account balances to original transactions and calcu lations. augmented estate. See ESTATE (3). aula regis (aw-b ree-jis). [Latin "king's hall"] Hist. See CURIA REGIS. AuntJemima doctrine. Trademarks. The principle that a trademark is protected not only from use on a directly competing product, but also from use on a product so closely related in the marketplace that consumers would be confused into thinking that the products came from a Single source. Aunt Jemima Mills Co. v. Rigney & Co., 247 F. 407 (2d Cir. 1917); 15 l;SCA 1114. In the namesake case, the name used on pancake flour was later used on syrup. lhe issue was not whether a competitor was trying to pass off goods, but whether it was fair to let the name's second user jeopardize the goodwill built up by the first user. See COMPLEMEN TARY GOODS. [Cases: Trademarks 1104.] aural acquisition. (1968) Criminal law. l;nder the Federal Wiretapping Act, hearing or tape-recording a communication, as opposed to tracing its origin or destination. 18 USCA 2510(4). [Cases: Telecommu nications AUSA. abbr. See assistant United States attorney under ;';NITED STATES ATTORNEY. Australian ballot. See BALLOT (4). aut dedere autjudicare. [Latin "extradite or prosecute"] International law. The principle that a nation where a fugitive from justice is found has a duty to either extra dite the fugitive to the nation from which the person has fled or to prosecute the person in its own courts. This is an emerging prinCiple, and not accepted as a customary rule in international law. Cf. AUT DEDERE AUT POENAM PERSEQUI; AUT DEDERE AUT JUDICARE AUT TRANSFERERE. author aut dedere aut judicare aut transferere. [Latin "extra dite, prosecute, or transfer"] International law. An emerging principle that a nation may choose neither to extradite nor to prosecute a person accused of a crime but instead may" deliver" the person to a third nation . This is not a de facto extradition because the receiving state may also refuse to surrender the accused person to the requesting state. Cf. AUT DEDERE AUT j;';DICARE; AUT DEDERE AUT POENAM PERSEQUL aut dedere aut poenam persequi. [Latin "extradite or enforce the sanction"] International law. The rule that a sentence handed down by a court against a person who flees or has ned to another nation should be enforced by that nation ifit chooses not to extradite the person. Cf. AUT DEDERE AUT JUDICARE; AUT DEDERE AUT JUDICARE AUT TRANSFERERE. authentic act. Civil law. 1. A writing signed before a notary public or other public officer. [Cases: Acknowl~ edgment C:> 1.]2. A certified copy ofa writing. [Cases: Evidence (;:::;;)343.] authenticate, vb. 1. To of(a thing). [Cases: Criminal Law C:>366-381.] 2. To render authoritative or authentic, as by attestation or other legal formality. See UCC 9-102(a)(7). authentication, n. (lSc) 1. Broadly, the act of proving that something (as a document) is true or genuine, esp. so that it may be admitted as evidence; the condition of being so proved <authentication of the handwriting>. [Cases: Criminal Law Evidence C:> 366-381.] 2. Specif., the assent to or adoption ofa writing as one's own. "The concept of authentication, although continually used by the courts without apparent difficulty. seems almost to defy precise definition. Some writers have construed the term very broadly, as does Wigmore when he states that 'when a claim or offer involves impliedly or expressly any element of personal connection with a corporeal object, that connection must be made to appear ... .' So defined, 'authentication' is not only a necessary preliminary to the introduction of most writings in evidence, but also to the introduction of various other sorts of tangibles." John W. Strong et aI., McCormick on Evidence 218, at 350 (5th ed. 1999) (italics in original). self-authentication. (1939) Authentication without extrinsic evidence of truth or genuineness . In federal courts, certain writings, such as notarized documents and certified copies ofpublic records, may be admitted into evidence by self-authentication. Fed. R. Evid. 902. [Cases: Criminal Law C-'"::)444; Evidence C:>366-381.] authentic interpretation. See INTERPRETATION. authenticum (aw-then-t<1-k<1m). Roman & civil law. 1. An original instrument. 2. (cap.) A Latin version of 134 Novels promulgated by Justinian mostly in Greek between A.D. 535 and 556. Also termed Authenti cae. author. 1. Copyright. The person who creates an expressive work, or the person or business that hires another to create an expressive work. In copyright law, "author" applies to a broad range ofoccupations, 152 authoritative precedent including writers, artists, programmers, choreogra phers, and translators. [Cases: Copyrights and Intel lectual Property C=:>41(1).] 2. One from whom a right or title derives in some way other than by descent. See AUCTOR (1). authoritative precedent. See binding precedent under PRECEDENT. authority. (Bc) 1. The right or permission to act legally on another's behalf; esp., the power of one person to affect another's legal relations by acts done in accor dance with the other's manifestations of assent; the power delegated by a principal to an agent <authority to sign the contract>. -Also termed power over other persons. See AGENCY. [Cases: Principal and Agent 96.] "The term 'authority,' like the term 'contract; may easily be used in three senses, and is therefore a term to be avoided when accurate reasoning is desirable. It may be used to mean (1) the operative acts of the principal, (2) a physical document executed by the principal, or (3) the legal rela tions consequent upon the preceding operative facts (l) and (2), and especially the legal power conferred upon the agent to bring the principal into new legal relations without any further action by the principal. The operative facts may be spoken words, a document together with the acts neces sary to execute it, or other conduct by the principal appar ently expressing an intention to create a power. Hereafter, the word 'authority' will be used to denote these opera tive facts; in other cases the word power will usually be substituted. This latter word is not so likely to be taken in shifting senses, in spite of the fact that 'power ofattorney' generally means a physical document under seal." William R. Anson, Principles of the Law ofContract 508 n.1 (Arthur l. Corbin ed., 3d Am. ed. 1919). actual authority. (l8c) Authority that a principal intentionally confers on an agent or authority that the agent reasonably believes he or she has as a result of the agent's dealings with the principaL. Actual authority can be either express or implied. -Also termed real authority. [Cases: Principal and Agent (::::,96,99.] "Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess." Cal. Civ. Code 2316. apparent authority. (1808) Authority that a third party reasonably believes an agent has, based on the third party's dealings with the principal, even though the principal did not confer or intend to confer the authority. Apparent authority can be created by law even when no actual authority has been con ferred. -Also termed ostensible authority; authority by estoppel. [Cases: Principal and Agent (:::::c99.] "The term 'apparent authority' means that a legal power is vested in the agent in the absence of any intention by the principal that it should exist, or even in spite of his inten tion that it should not exist. The operative facts causing this power to exist are acts of the principal which, consid ered along with surrounding facts, induce the third person with whom the agent deals to believe reasonably that the principal intended the power to exist. The power is real and not merely apparent. The agent is indeed a wrongdoer in exercising the power. He possesses the power but not the legal privilege of using it. Likewise, the authority (meaning the action of the principal creating the agent's power) is real. It is only the intention of the principal to create such a power that is merely apparent (i.e., non-existent)." William R. Anson, Principles of the Law ofContract 510 n.1 (Arthur L Corbin ed., 3d Am. ed. 1919). '''Apparent authority' of an insurance agent means such authority as an insurer knowingly permits the agent to assume, or which it holds him out as possessing, that is, such authority as he appears to have by reason of actual authority or such authority as a reasonably prudent man would suppose the agent to possess." John Alan Appleman &Jean Appleman, Insurance Law and Practice 8674 (1981). authority coupled with an interest. (17c) Authority given to an agent for valuable consideration . This authOrity cannot be unilaterally terminated by the principal. Cf. naked authority. [Cases: Principal and Agent (:::::c34.1 constructive authority. (1823) Authority that is inferred because ofan earlier grant ofauthority. express authority. (l6c) Authority given to the agent by explicit agreement, either orally or in writing. Also termed stipulated authority. [Cases: Principal

agent by explicit agreement, either orally or in writing. Also termed stipulated authority. [Cases: Principal and Agent (;:::'96.] general authority. (17c) A general agent's authority, intended to apply to all matters arising in the course ofthe principal's business. implied authority. (18c) Authority intentionally given by the principal to the agent as a result of the principal's conduct, such as the principal's earlier acquiescence to the agent's actions. -Also termed presumptive authority. [Cases: Principal and Agent C=:>99.J incidental authority. (18c) Authority needed to carry out actual or apparent authority . For example, the actual authority to borrow money includes the inci dental authority to sign commercial paper to bring about the loan. Also termed inferred authority. [Cases: Principal and Agent (;:=>99.] inherent authority. (l7c) Authority ofan agent arising from the agency relationship. naked authority. (18c) Authority delegated to an agent solely for the principal's benefit, without a beneficial interest in the matter for the agent. This author ity can be revoked by the principal at any time. Cf. authority coupled with an interest. ostensible authority. See apparent authority. presumptive authority. See implied authority. real authority. See actual authority. special authority. (l8c) AuthOrity limited to an indi vidual transaction. stipulated authority. See express authority. supervisory authority. See SUPERVISORY AUTHORITY. 2. Governmental power or jurisdiction <within the court's authority>. 3. A governmental agency or cor poration that administers a public enterprise <transit authority>. Also termed public authority. [Cases: Municipal Corporations (;:;::>2.] 153 constituted authority. (often pl.) Each of the legisla tive, executive, and judicial departments officially and rightfully governing a nation, people, municipality, or other governmental unit; an authority properly appointed or elected under organic law, such as a constitution or charter. examining authority. A self-regulatory organization registered with the Securities and Exchange Com mission and vested with the authority to examine, inspect, and otherwise oversee the activities ofa reg istered broker or dealer. 4. A legal writing taken as definitive or decisive; esp., a judicial or administrative decision cited as a precedent <that case is good authority in Massachusetts> . The term includes not only the decisions of tribunals but also statutes, ordinances, and administrative rulings. [Cases: Courts C=>88.] adverse authority. (18c) Authority that is unfavorable to an advocate's position . Most ethical codes require counsel to disclose adverse authority in the control ling jurisdiction even ifthe opposing counsel has not cited it. imperative authority. Authority that is absolutely binding on a court. -Also termed binding author ity. Cf. binding precedent under PRECEDENT. persuasive authority. (1842) Authority that carries some weight but is not binding on a court. "It may be well to call attention to the fact that the word 'authority' is used by lawyers in at least two senses, one abstract and the other concrete. The word [in its concrete sense] refer[s] to the book or other repository to which one resorts to find propositions of law, and sometimes the word is used in an even narrower sense to mean reported cases. In its abstract sense, however, 'authority' is sub stantially equivalent to 'influence' or 'power,' and in this sense 'authority' may be diVided into two grades, in that the force of a statement of law is either imperative (that is to say, absolutely binding upon the courts) or simply persuasive. The use of the terms 'primary' and 'second ary' authority, as applied in the concrete sense, must not be confused with the use of the terms 'imperative' and 'persuasive' authority, as used in the abstract sense. That is to say, a book of primary authority may be either impera tive or persuasive, according to the circumstances.. ,or it may be of no force at all. Books of secondary authority are, in the nature of things, usually merely of persuasive authority." William M. Lile et aI., Brief Making and the Use ofLawBooks12(3ded.1914). primary authority. (1826) Authority that issues directly from a law-making body; legislation and the reports oflitigated cases. secondary authority. (1826) Authority that explains the law but does not itself establish it, such as a treatise, annotation, or law-review article. S. A source, such as a statute, case, or treatise, cited in support of a legal argument <the brief's table of authorities>. authority by estoppel. See apparent authority under AUTHORITY (1). authorization clause. Patents. A Patent Act provi sion directing that if a person uses or manufactures autolimitation something protected by a valid U.S. patent, acts on behalf of the U.S. government, and acts with the gov ernment's authorization or consent, the U.S., not the person, is deemed the infringing user or manufacturer . Ifan infringing act is done by a government contrac tor or subcontractor working for the U.S. and the act is covered by the authorization or consent clause, the patent owner's only recourse is a suit against the U.S. in the U.S. Claims Court for compensation. The autho rization or consent clause is in the second paragraph of 28 USCA 1498(a). Also termed consent clause. [Cases: United States ~97.] authorization to sell. See LISTING (I). authorize, vb. (14c) 1. To give legal authority; to empower <he authorized the employee to act for him>. 2. To formally approve; to sanction <the city authorized the construction project>. authorization, n. authorized capital. See nominal capital under CAPITAL. authorized capital stock. See capital stock (1) under STOCK. authorized committee. See SPECIAL LITIGATION COM MITTEE. authorized shares. See capital stock (1) under STOCK. authorized stock. See capital stock (1) under STOCK. authorship. See work ofauthorship under WORK (2). author's right. Copyright. The system of protecting the moral and economic rights of the creator ofa work, esp. in civil-law countries. Also termed (in French) droit d'auteur; (in German) Urheberrecht; (in Italian) diritto d' autore; (in Spanish) derecho de autor. "[O]n almost every point of consequence, the traditions of copyright and author's right are far more alike than they are unlike. One reason is that the Berne Convention bridges the two traditions, with the result that its extensive minimum standards have dictated substantively similar rules for countries in both camps." Paul Goldstein, Interna tional Copyright: Principles, Law, and Practice 4 (2001). author's share. Copyright. An author's portion ofroyal ties, as determined by an agreement with the publisher. [Cases: Copyrights and Intellectual Property C=>48.] autocracy (aw-tok-r<l-see), n. (l7c) Government by one person with unlimited power and authority; unlim ited monarchy. autocratic (aw-t<l-krat-ik), adj. autocrat (aw-t<l-krat), n. autograph, n. A person's own writing or signature; HOLOGRAPH. Cf. ALLOGRAPH. autolimitation, n. An authority's establishment of rules that, in effect, limit the authority's own power. autolimit, vb. "The theory ofJellinek (Allgemeine Staatslehre), so far as the writer understands it, is not an explanation either. In his view something which he calls the State, not defined, but, as it seems, a group of persons, finds itself in posses sion of power, and establishes rules. These are the law. This process he calls 'autolimitation.' It is true that a body with supreme power does make law. An autocrat, man or group, without rules, may do justice, though it probably will not, but it does not make law there is no Rechtsstaat. 154 Automated Bond System But autolimitation is, as Professor Brierly notes ... , a con tradiction in terms. If the State's power is limited, it must be by some superior power. But even accepting the analysis, we are no better off." W.W. Buckland, Some Reflections on Jurisprudence 24 (1945). Automated Bond System. The New York Stock Exchange's computerized network that enables sub scribers to electronically transmit quotations and execute orders for bond trades. Abbr. ABS. Automated Patent System. A computerized database of patents, maintained by the C.S. Patent and Trademark Office database. Abbr. APS. Also termed auto mated p!tent search system. automated transaction. (1977) A contract formed or performed, in whole or in part, by electronic means or by electronic messages in which neither party's elec tronic actions or messages establishing the contract are intended to be reviewed by an individual in the ordinary course. UCITA 2-102(a)(7), 102:lOUC; UETA 14. automatic-adjustment clause. A provision in a utility rate schedule that allows a public utility to increase its rates without a public hearing or state review, ifcertain operating costs, such as the price of fuel, increase. Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742, 102 S.Ct. 2126 (1982). [Cases: Electricity (:=:, 11.3(4,6); Public Utilities C:)128.] automatic-assignment doctrine. Trademarks. The rule that, absent evidence to the contrary, the sale of an entire business carries with it and transfers to the pur chaser any common-law marks used in that business without the need for a written assignment. _ For marks registered under the Lanham Act or under some state registration schemes, a written assignment is required to transfer an interest in a registered mark or in a pending application to register a mark. [Cases: Trade marks <>1201(2).] automatic disclosure. See DISCLOSURE (2). automatic perfection. See PERFECTION. automatic stay. See STAY. automatic suspension. See automatic stay under STAY. automatic-transfer statute. See TRANSFER STATUTE. automatic wage-withholding. See attachment of wages under ATTACHMENT (1). automatism (aw-tom-;3-tiz-;3m), n. (1838) 1. Action or conduct occurring without will, purpose, or reasoned intention, such as sleepwalking; behavior carried out in a state of unconsciousness or mental dissociation without full awareness. _ Automatism may be asserted as a defense to negate the requisite mental state of voluntariness for commission of a crime. [Cases: Criminal Law <>46.] 2. The state of a person who, though capable ofaction, is not conscious ofhis or her actions. -automaton, n. "How far is automatism a defence? It has been defined as involuntary action performed in a state of unconscious ness not amounting to insanity. Theoretically the defence is that no act in the legal sense took place at all the plea is that there was no volition or psychic awareness." George Whitecross Paton, A Textbook ofJurisprudence 315 (G.W. Paton & David P. Derham eds . 4th ed. 1972). ambulatory automatism. Automatism that consists in irresponsible or purposeless wanderings. automobile exception. (1970) The doctrine that when probable cause exists, a law-enforcement officer need not obtain a warrant before searching a movable vehicle (such as a car or boat) in which an individual has a lessened expectation of privacy . 1his is an excep tion to the Fourth Amendment's warrant requirement for search and seizure; exigent circumstances are presumed to exist. Once the right to conduct a war rantless search arises, the actual search may take place at a later time. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280 (1925); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464 (1974); California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982 (1991). See exigent circumstances under ClRCUMSTA::'-ICE. [Cases: Controlled Substances (;=-114; Searches and Seizures <>60.] automobile exclusion. See EXCLUSION (3). automobile-guest statute. See GUEST STATUTE. automobile homicide. See vehicular homicide under HOMICIDE. automobile insurance. See INSURANCE. autonomic law (aw-ta-no m-ik). (1832) An internal regu lation that has its source in various forms ofsubordi nate and restricted legislative authority possessed by private persons and bodies ofpersons . Examples are corporate bylaws, university regulations, and the rules of the International Monetary Fund. autonomous tariff. See TARIFF (2). autonomy (aw-tahn-a-mee), n. (17c) 1. The right ofself government. 2. A self-governing nation. 3. An individ ual's capacity for self-determination. autonomous (aw-tahn-;3-m;3s), adj. autonomy ofthe parties. See FREEDOM OF CONTRACT. autonomy privacy. See PRIVACY. autopsy (aw-top-see). (1678) 1. A medical examination of a corpse to determine the cause of death, esp. in a criminal investigation. Also termed postmortem; necropsy. [Cases: Coroners 2. The evidence of one's own senses. "To a

necropsy. [Cases: Coroners 2. The evidence of one's own senses. "To a rational man of perfect organization, ... the best and highest proof of which any fact is susceptible is the evidence of his own senses. Hence autopsy, or the evidence of one's own senses, furnishes the strongest probability and indeed the only perfect and indubitable certainty of the existence of any sensible fact." Centry v. McMinnis, 3 Dana 382 (1835) (as quoted in John H. Wigmore, A Students' Textbook of the Law of Evidence 214 (1935)). autoptic evidence (aw-top-tik). See demonstrative evidence under EVIDENCE. autoptic proference (proh-far-;mts). 1. The presentation of an item for inspection by the court. 2. See demon strative evidence under EVIDENCE. [Cases: Criminal Law <>404.35; Evidence <>188.] 155 "Yet another form of proof that may present difficulties in defining evidence is what Wigmore calls 'autoptic profer ence.' By this barbarism, the learned author was referring to those few cases in which it is possible to bring before the jury the material fact itself, rather than evidence of the fact." 22 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure 5163, at 33 (1978). autre action pendant (oh-tr;l ak-see-awn pahn-dahn). [Law French] Another action pending. This phrase was formerly used in pleas of abatement. autre droit (oh-tr;l drwah). [Law French] In right of another. This phrase describes the manner in which a trustee holds property for a beneficiary. autrefois (oh-tr;l-fwah or oh-t;lr-foyz). [Law French] On another occasion; formerly. autrefois acquit (;l-kwit or a-kee). [Law French "previ ously acquitted"] A plea in bar of arraignment that the defendant has been acquitted of the offense. Also termed former acquittal. See DOUBLE JEOPARDY. [Cases: Criminal Law C=>289-297; Double Jeopardy C=>100.] "Suppose that a transgressor is charged and acquitted for lack of evidence, and evidence has now come to light showing beyond doubt that he committed the crime. Even so, he cannot be tried a second time. He has what is termed, in legal Frenglish, the defence of autrefois acquit. Similarly, if he is convicted, even though he is let off very lightly, he cannot afterwards be charged on fresh evidence, because he will have the defence of autrefois convict. These uncouth phrases have never been superseded, though they might well be called the defence of 'previous acquittal' and 'previous conviction'; and 'double jeopardy' makes an acceptable generic name for both." Glanville Williams, Textbook of Criminal Law 24 (1978). autrefois attaint (;l-taynt). Hist. A plea in bar that the defendant has already been attainted for one felony and therefore cannot be prosecuted for another. This plea was abolished in 1827. autrefois convict. [Law French "previously convicted"] A plea in bar of arraignment that the defendant has been convicted ofthe offense. See DOUBLE JEOPARDY. [Cases: Criminal Law C=>289-297; Double Jeopardy C=>lOS.] autre vie (oh-tr;l vee). [Law French "another's life"] 1. See PUR AUTRE VIE. 2. See VIE. auxiliary (awg-zil-y;l-ree), adj. 1. Aiding or supporting. 2. Subsidiary. 3. Supplementary. auxiliary covenant. See COVENANT (1). auxiliary jnrisdiction. See assistant jurisdiction under JURISDICTION. auxiliator (awg-zil-ee-ay-t;lr), n. [Latin] Hist. A helper; an assistant. auxilium (awg-zil-ee-;lm), n. [Latin] Hist. Aid; esp., compulsory aid such as a tax or tribute to be paid by a vassal to a lord as an incident of the tenure by knight's service. auxilium ad filium militem faciendum etfiliam mari tandam (awg-zil-ee-;lm ad fil-ee-;lm mil-;l-tem fay shee-en-d;lm et fil-ee-am mar-;l-tan-d;lm), n. [Law Latin] Hist. A writ ordering a sheriff to levy a tax toward average the knighting ofa son and the marrying of a daughter oftenants in capite of the Crown. auxilium curiae (awg-zil-ee-;lm kyoor-ee-I or kyoor ee-ee). [Latin] Hist. A court order summoning a party to appear and assist another party already before the court. auxilium regis (awg-zil-ee-;lm ree-jis), n. [Latin] Hist. The Crown's tax levied for royal use and public service, such as a tax granted by Parliament. auxilium vice comiti (awg-zil-ee-;lm VI-see kom-;l-tr), n. [Latin] Hist. An ancient tax paid to sheriffs. avail, n. (ISc) 1. Use or advantage <of little or no avail>. 2. (pI.) Profits or proceeds, esp. from a sale ofproperty <the avails of the trust fund>. available, adj. Legally valid <available claims> <avail able defenses>. available for work, adj. (Of a person) ready, willing, and able to accept temporary or permanent employment when offered. availment, n. (17c) The act of making use or taking advantage of something for oneself <availment of the benefits of public office>. -avail, vb. avail of marriage. See VALOR MARITAGIl. aver (;l-var), vb. (ISc) To assert positively, esp. in a pleading; to allege. average, n. 1. A single value that represents the midpoint of a broad sample of subjects; esp., in mathematics, the mean of a series. 2. The ordinary or typical level; the norm. 3. Maritime law. Accidental partial loss or damage to an insured ship or its cargo during a voyage. [Cases: Shipping C=> 186-202.] -average, vb. & adj. extraordinary average. A contribution by all the parties concerned in a commercial voyage -whether for vessel or cargo -toward a loss sustained by some of the parties in interest for the benefit of all. general average. Average resulting from an intentional partial sacrifice ofship or cargo to avoid total loss . The liability is proportionately shared by all parties who had an interest in the voyage. -Abbr. GA. Also termed gross average; general-average contribu tion. [Cases: Shipping C=>186-202.] "[Gleneral average refers to certain extraordinary sacrifices made or expenses incurred to avert a peril that threat ens the entire voyage. In such a case the party sustaining the loss confers a common benefit on all the parties to the maritime venture. As a result the party suffering the loss has a right -apart from contract or tort -to claim contribution from all who participate in the venture. The doctrine of general average is thus an equitable principle derived from the general maritime law. General average is an exception to the principle of particular average that losses lie where they fall; rather the loss becomes 'general,' meaning that it is spread ratably among all the parties involved in the maritime adventure. The doctrine of general average is of ancient vintage, and can be traced back to remotest antiquity." ThomasJ. Schoenbaum, Admiralty and Maritime Law 161, at 522-23 (1987). particular average. Average resulting from an acci dental partial loss or damage. Any average that is not general is termed particular. The liability is borne solely by the person who suffered the loss. Also termed simple average; partial average; petty average. 4. Hist. A service, esp. one of carriage, due from a feudal tenant to a lord. The average is mentioned in the Domesday Book, but the exact nature of the service is unclear. Based on etymological studies, some authorities believe the term referred to the performance of work with or by beasts of burden. But because the term's origin is unclear, this theory is not universally accepted. average adjuster. See ADJUSTER. average bond. See general-average bond under BOND (2). average cost. See COST (1). average daily balance. See DAILY BALANCE. average gross sales. See SALE. average tax rate. See TAX RATE. average variable cost. The average cost per unit ofoutput, arrived at by dividing the total variable expenses ofpro duction by the total units of output. See COST (1). Cf. LONG-RUN INCREMENTAL COST. averaging down. An investment strategy in which shares in the same company are purchased at successively lower prices to achieve a lower average cost basis than the first purchase . An investor may buy any number ofshares in each transaction, not necessarily the same number each time. Cf. AVERAGING UP. averaging up. An investment strategy in a rising market in which equal numbers ofshares in the same company are purchased at successively higher prices to reduce the investment's average cost basis . For example, if an investor buys an equal number ofshares at $10, $13, $15, and $lS, the average cost basis per share is $14. Cf. AVERAGING DOWN. averment (;:)-v;Jr-m;mt), n. (lSc) A positive declaration or affirmation offact; esp., an assertion or allegation in a pleading <the plaintiff's averment that the defendant ran a red light>. Cf. ASSEVERATE. immaterial averment. (lSc) An averment that alleges something in needless detail; a statement that goes far beyond what is in issue. This type of averment may be ordered struck from the pleading. [Cases: Federal Civil Procedure ~6S2, 1125; Pleading C::::o 22,362(3), 364.] negative averment. (lSc) An averment that is negative in form but affirmative in substance and that must be proved by the alleging party. An example is the statement "she was not old enough to enter into the contract," which is more than just a simple deniaL Cf. TRAVERSE. [Cases: Federal Civil Procedure C::::o 741; Pleading C='7S, 119-123.] averment of notice. A statement in a pleading that someone else has been properly notified about some fact, esp. in special actions ofassumpsit. See NOTICE. aviation easement. See avigational easement under EASEMENT. aviation insurance. See INSURANCE. avigational easement. See EASEMENT. avigation easement. See avigational easement under EASEMENT. a vinculo matrimonii (ay ving-ky;:)-loh ma-tp-moh nee-I). [Latin] From the bond of matrimony. -Often shortened to a vinculo. See divorce a vinculo matrimonii under DIVORCE. avizandum (av-i-zan-d;:)m). [Law Latin] Scots law. Delib eration; advisement. The judge is said later to "advise" the case -that is, to give an opinion. ''To make avizandum with a process, or part of it, is to take it from the public court to the private consideration of the judge." William Bell, Bel/'s Dictionarv and Digest ofthe Law ofScotland 82 (George Watson ed., 7th ed. 1890). avoid, vb. (14c) To render void <because the restric tive covenant was overbroad, the court avoided it> . Because this legal use of avoid can be easily confused with the ordinary sense of the word, the verb to void is preferable. avoidable, adj. 1. Not inevitable; subject to prevention <an avoidable accident>. practically avoidable. (Of harm) capable ofbeing elim inated in whole or substantial part without incurring prohibitive expense or hardship. 2. Capable ofbeing refrained from <avoidable habits>. 3. Voidable. avoidable-consequences doctrine. See MITIGATION-OF DAMAGES DOCTRINE. avoidable cost. See COST (1). avoidance, n. (l4c) 1. The act of evading or escaping <avoidance of tax liability>. See TAX AVOIDANCE. 2. The act of refraining from (something) <avoidance of an argument>. 3. RESCISSION (1) <avoidance of the agreement>. 4. VOIDANCE <avoidance ofa penalty>. 5. ANNULMENT (1) <avoidance of the marriage>. 6. CON FESSION AND AVOIDANCE <the defendant filed an avoid ance in an attempt to avert liability>. -avoid, vb. avoiding power. See POWER (5). avoision (.:J-voy-zh;:)n), n. An ambiguous act that falls between legal avoidance and illegal evasion of the law. The term, coined by Arthur Seldon, an economist, is a blend of evasion and avoidance. Avoision usu. refers to financial acts that are not clearly legal tax avoid ance or illegal tax evasion, but it may appear in other contexts. "The book is in three parts, divided into tiny chapter lets. forty-two in all. The first part takes up what Katz calls 'avoision': a fusion of 'avoidance' and 'evasion' that denotes cases in which it is unclear whether a person's conduct should be considered lawful avoidance of the law's prohibitions or illegal evasion. Two actresses are vying for the same part. Mildred knows that Abigail has been unfaithful to her husband. If she threatens to tell the husband unless Abigail forgoes the audition, that would be blackmail, and

. If she threatens to tell the husband unless Abigail forgoes the audition, that would be blackmail, and a crime. Instead she tells Abigail that she is mailing a letter addressed to the husband that reveals Abigail's infidelity and that has been timed to arrive the morning of the audition. Knowing that Abigail will stay home to intercept the letter, Mildred will have achieved the same end as she would have done by committing black mail, yet her conduct is not criminal." Richard A. Posner, "The Immoralist," New Republic, July 15, 1996, at 38. avoucher (;3-vow-ch;3r). 1. Hist. A tenant's calling upon a warrantor of title to the land to help the tenant defend the title. 2. One who declares a probable truth, cor roborates, confirms, or confesses. avoutry. See ADULTERY. avowal (;3-VOW-;3l), n. 1. An open declaration. 2. OFFER OF PROOF..-avow, vb. avowant (;3-vow-;3nt), n. A person who makes avowry in an action of replevin. avowee. See ADVOCATUS. avowry (;3-vow-ree), n. Common-law pleading. An acknowledgment -in an answer to a replevin action that one has taken property, and a justification for that taking <the defendant's avowry was based on alleged damage to the property by the plaintiff>. Cf. COGNI zANcE (4). [Cases: Replevin ~64.] -avow, vb. avowter. Hist. An adulterer. The crime was called avowtry. -Also spelled advouterer; avowterer; avouter; advowter. avowtry. See ADULTERY. avulsion (;3-v;3l-sh;3n), n. (17c) 1. A forcible detachment or separation. 2. A sudden removal of land caused by change in a river's course or by flood . Land removed by avulsion remains the property ofthe original owner. Cf. ALLUVION; ACCRETION (1); DELICTION; EROSION. 3. A tearing away ofa body part surgically or accidentally. [Cases: Navigable Waters ~4S; Waters and Water Courses ~94.1 -avulse, vb. avunculus (;3-v;mgk-y;3-I;3s), n. [Latin] Roman & civil law. A maternal uncle; one's mother's brother. avunculus maximus (mak-s;3-m;3s). See ABAVUNCU LUS. avus (av-;3s or ay-v;3s), n. [Latin] Roman & civil law. A grandfather. award, n. (I4c) A final judgment or decision, esp. one by an arbitrator or by a jury assessing damages. -Also termed arbitrament. award, vb. (14c) To grant by formal process or by judicial decree <the company awarded the contract to the low bidder> <the jury awarded punitive damages>. award in interference. See PRIORITY AWARD. away-going crops. See CROPS. AWOL. abbr. (1921) Absent without leave; missing without notice or permission. [Cases: Armed Services ~36;Military Justice ~667.] axiom (ak-see-;3m), n. (ISc) An established principle that is universally accepted within a given framework of reasoning or thinking <"innocent until proven guilty" is an age-old axiom of criminal law>. -axiomatic (ak-see-;3-mat-ik), adj. ayant cause (aY-;3nt). Civil law. 1. One to whom a right has been assigned by will, gift, sale, or exchange; an assignee. 2. One who has a "cause" or standing in one's own right. aye (I), n. Parliamentary law. An affirmative vote. ayel (aY-;3I). See AIEL. ayle (ayl). See AIEL. B B. abbr. BARON (3). B2B. abbr. BUSINESS-TO-BUSINESS <a B2B transac tion>. B2C. abbr. BUSINESS-TO-CONSUMER <a B2C transac tion>. BA. abbr .. See banker's acceptance under ACCEPTANCE (4) baby act, pleading the. Slang. The act of asserting a person's infancy as a defense to a contract claim. baby-bartering. See BABY-SELLING. baby bond. See BOND (3). baby-brokering. See BABY-SELLING. Baby Doe. (1974) A generic pseudonym for a very young child involved in litigation . Today a gender designa tion is often added: Baby Girl Doe or Baby Boy Doe. The generic term is used to shield the child's identity. Baby FTC Act. (1988) A state statute that, like the Federal Trade Commission Act, outlaws deceptive and unfair trade practices. Baby Moses law. See SAFE-HAVEN LAW. baby-selling. The exchange of money or something of value for a child . All states have prohibitions against baby-selling. It is not considered baby-selling for pro spective adoptive parents to pay money to a birth mother for pregnancy-related expenses. -Also termed baby-brokering; bally-bartering. baby-snatching. See child-kidnapping under KIDNAP PING. BAC. abbr. BLOOD ALCOHOL CONTENT. bachelor. 1. An unmarried man. 2. The usual title of the first degree that is conferred on a university graduate. 3. English law. A member of one of the orders of chivalry, such as the Order of the Bath. -Also termed (in sense 3) knight bachelor. bachelor oflaws. See LL.B. back, vb. (ISc) 1. To indorse: to sign the back of a negotia ble instrument. 2. To sign so as to show acceptance or approval. 3. To sign so as to indicate financial respon sibility for (someone or something). 4. Hist. (Of a mag istrate) to sign (a warrant issued in another county) to permit execution in the signing magistrate's county. "[Although) the warrant of the judge of the Court of King's Bench extends over the whole realm, ... that of ajustice of the peace cannot be executed out of his county, unless it be backed. that is, indorsed by ajustice of the county, in which it is to be carried into execution. It is said. that formerly there ought in strictness to have been a fresh warrant in every fresh county, but the practice of backing warrants has long been observed, and was at last sanctioned by the statute 23 Geo. 2. c. 26. s. 2, and 24 Geo. 2. c. 55." 1 Joseph Chitty, A Practical Treatise on the Criminal Law 45 (2d ed. 1826). backadation. See BACKWARDATION. backberend (bak-ber-;md). [Old English] Hist. 1. The bearing of stolen goods upon one's back or about one's person . Backberend is sometimes modernized to backbearing. 2. A person caught carrying stolen goods. Also spelled bacberende: backberinde. Cf. HANDHABEND. "Backberinde signifieth bearing upon the Back, or about a Man. Bracton useth it for a Sign or Circumstance of Theft apparent, which the Civilians call Furtum manifestum .... " Giles Jacob, A New Law-Dictionary (8th ed. 1762). back carry. Hist. The crime of carrying, on one's back, unlawfully killed game. backdate, vb. (1944) 1. To put a date earlier than the actual date on (something, as an instrument) . Under UCC 3-113(a), backdating does not affect an instru ment's negotiability. Cf. POSTDATE; ANTEDATE (1). 2. To make (something) retroactively valid. back door to Berne. Copyright. A U.S. copyright owner's simultaneous publication of the copyrighted work in both the United States and in a Berne Convention country in order to obtain Berne Convention protec tion. -This backdoor method was used before March 1989, when the United States became a member of the Berne Convention. [Cases: Copyrights and Intellectual Property (:.:::> 34.] back-end load. See load fund under MUTUAL FUND. background of the invention. Patents. In a U.S. patent application and any resulting patent, the section that identifies the field of art to which the invention pertains, summarizes the state of the art, and describes the problem solved by the invention. _ The Background of the Invention section usu. includes two subsections: "Field of the Invention" and "Description of the Related Art." A mistaken inclusion in this section of a reference that postdates the date of invention may be construed as an admission. [Cases: Patents (:'::::'99.] backhaul allowance. See ALLOWANCE (1). backing. Endorsement, esp. of a warrant by a magistrate. See BACK (4). back-in right. Oil & gas. A reversionary interest in an oil-and-gas lease entitling an assignor to a share of the working interest after the assignee has recovered speci fied costs from production. back lands. (17c) Generally, lands lying away from not next to a highway or a watercourse. backpay. The wages or salary that an employee should have received but did not because of an employer's 159 unlawful action in setting or paying the wages or salary. Also written back pay. Cf. FRONTPAY. backpay award. A judicial or quasi-judicial body's decision that an employee or ex-employee is entitled to accrued but uncollected wages or benefits. -Some times shortened to backpay. backspread. Securities. In arbitrage, a less than normal price difference in the price of a currency or commod ity. See ARBITRAGE; SPREAD (3). back taxes. See back tax under TAX. back-title certificate. See BACK-TITLE LETTER. back-title letter. An official letter from a title insurer advising about the condition of title to land as of a certain date . With this information, the title can be examined from that date forward. -Also termed back title certificate. back-to-back loan. See LOAN. back-to-work agreement. A contract between a union and an employer covering the terms under which the employees will return to work after a strike. backwardation. Securities. A fee paid by the seller of securities so that the buyer will allow delivery after their original delivery date. Also termed backada tion; inverted market. backward integration. See INTEGRATION (5). backwater. See WATER. baculus (bak-ya-las or bak-a-Ias). Hist. A rod or staff used to symbolize the conveyance of unimproved land. See LIVERY OF SEISIN; FESTUCA. bad, adj. Invalid or void; legally unsound <bad service of process> <bad law>. bad actor. See ACTOR (1). bad-boy disqualification. Securities. An issuer's disqual ification from certain SEC-registration exemptions as a result of the issuer's securities-law violations. bad-boy provision. Securities. A statutory or regulatory clause in a blue-sky law stating that certain persons, because of their past conduct, are not entitled to any type of exemption from registering their securities. _ Such clauses typically prohibit issuers, officers, direc tors, control persons, or broker-dealers from being involved in a limited offering if they have been the subject of an adverse proceeding concerning securi ties, commodities, or postal fraud. bad character. (17c) A person's propensity for or tendency toward unlawful or immoral behavior. _ In limited cir cumstances, proof of bad character may be introduced into evidence to discredit a witness. Fed. R. Evid. 608, 609. See character evidence under EVIDENCE. bad check. See CHECK. bad-conduct discharge. See DISCHARGE (8). bad debt. See DEBT. bad-debt loss ratio. The proportion of a business's uncol lectible debt to a business's total receivables. badger game bad-debt reserve. See RESERVE. bad faith, n. (I7c) L Dishonesty of belief or purpose <the lawyer filed the pleading in bad faith>. Also termed mala fides (mal-d-fI-deez). "A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evaSion of the spirit of the bargain. lack of diligence and slacking off, Willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance." Restatement (Second) of Con tracts 205 emt. d (1979). 2. Insurance. An insurance company's unreasonable and unfounded (though not necessarily fraudulent) refusal to provide coverage in violation of the duties of good faith and fair dealing owed to an insured . Bad faith often involves an insurer's failure to pay the insured's claim or a claim brought by a third party. 3. Insurance. An insured's claim against an insurance company for an unreasonable and unfounded refusal to provide coverage. Cf. GOOD FAITH. [Cases: Insurance (;=>3335,3336.]- bad-faith, adj. bad-faith enforcement. Patents. l. The filing of an infringement action by a patentee who knows that the accused product or process does not infringe or that

of an infringement action by a patentee who knows that the accused product or process does not infringe or that the patent is invalid or unenforceable. [Cases: Patents 325.11(4).] 2. In an infringement action, a counterclaim alleging that at the time of filing suit, the patentee knew that the accused product or process did not infringe or that the patent was invalid or unenforceable . A coun terclaim for bad-faith enforcement arises under 2 of the Sherman Act and under the common law of unfair competition. Cf. PATENT-MISUSE DOCTRINE. [Cases: Antitrust and Trade Regulation (;=>587(3).] bad-faith filing, n. Bankruptcy. The act of submitting a bankruptcy petition that is inconsistent with the purposes of the Bankruptcy Code or is an abuse of the bankruptcy system (that is, by not being filed in good faith) . A court may dismiss a bankruptcy case if it finds that the petition was filed in bad faith. [Cases: Bankruptcy (;=> 2253.J badge of fraud. (18c) A circumstance generally consid ered by courts as an indicator that a party to a trans action intended to hinder or defraud the other party, such as a transfer in anticipation of litigation, a trans action outside the usual course of business, or a false statement. See FRAUD. [Cases: Fraud (::;=3; Fraudulent Conveyances (;=> 13-16.] badge of slavery. (17c) 1. Strictly, a legal disability suffered by a slave, such as the inability to vote or to own property. 2. Broadly, any act of racial discrimina tion -public or private -that Congress can prohibit under the 13th Amendment. [Cases: Constitutional Law (;=> 1101.] badger game. (1858) A scheme to extort money or some other benefit by arranging to catch someone in a com promising position and then threatening to make that person's behavior public. 'The 'badger game' is a blackmailing trick, usually in the form of enticing a man into a compromising position with a bad-man theory woman whose real or pretended husband comes upon the scene and demands payment under threat of prosecution or exposure." Rollin M. Perkins & Ronald N. Boyce, Criminal Law451 (3d ed. 1982). bad-man theory. (1938) The jurisprudential doctrine or belief that a bad person's view of the law represents the best test of what the law actually is because that person will carefully calculate precisely what the rules allow and will operate up to the rules' limits. -Ihis theory was first expounded by Oliver Wendell Holmes in his essay The Path of the Law, 10 Harv. 1. Rev. 457 (1897). In the essay, Holmes maintained that a society's legal system is defined by predicting how the law will affect a person, as opposed to considering the ethics or morals supposedly underlying the law. Under Holmes's theory, the prediction is best made by viewing the law as would a "bad man" who is unconcerned with morals. Such a person is not concerned with acting morally or in accord with a grand philosophical scheme. Rather, that person is concerned with whether and to what degree certain acts will incur punishment by the public force of the law. See LEGAL REALISM. Also termed predic tion theory. bad motive. See MOTIVE. bads, n. Slang. In economics, the counterpart of "goods," characterized by a negative correlation between the amount consumed and the consumer's wealth; speciL the kinds of products that tend to be bought only by poor people. "Some products are termed 'bads' because consumption of the product tends to decrease with increasing wealth. Spam is one example of a bad, while beef tenderloin is generally thought to be a good." Donald S. Chisum et aI., Principles of Patent Law 54 (1998). bad title. See TITLE (2). baga (bag-<'l). [Law Latin] Hist. A bag or purse, esp. one in which original writs were kept by the Chancery. bagman. Slang. (1928) A person who collects and dis tributes illegally obtained money; esp., an intermediary who collects a bribe for a public officiaL bail, n. (I5c) 1. A security such as cash or a bond; esp., security required by a court for the release of a prisoner who must appear in court at a future time <bail is set at $500>. Cf RECOGNIZANCE. [Cases: Bail bail absolute, A fiduciary bond conditioning a surety's liability on the failure of an estate administrator, executor, or guardian to properly account for estate funds. See fiduciary bond under BOND (2). cash bail. A sum of money (rather than a surety bond) posted to secure a prisoner's release from jaiL Also termed stationhouse bail. [Cases: Bail C;)73.] civil bail. A bond or deposit of money given to secure the release of a person arrested for failing to pay a court-ordered civil debt. -The bail is conditioned on the payment of the debt. [Cases: Bail excessive bail. (17c) Bail that is unreasonably high con Sidering both the offense with which the accused is charged and the risk that the accused will not appear 160 for trial. -The Eighth Amendment prohibits exces sive bail. [Cases: Bail stationhouse bail. See cash bail. 2. The process by which a person is released from custody either on the undertaking of a surety or on his or her own recognizance. 3. Release of a prisoner on security for a future court appearance; esp., the delivery of a person in custody to a surety <the court refused bail for the accused serial killer>. [Cases: Bail C=>39.] 4. One or more sureties for a criminal defendant <the attorney stood as bail for her client>. See BAILER (1). "As a noun, and in its strict sense, bail is the person in whose custody the defendant is placed when released from jail, and who acts as surety for defendant's later appear ance in court .... The term is also used to refer to the undertaking by the surety, into whose custody defendant is placed, that he will produce defendant in court at a stated time and place." 8 c.J,S. Bail 2 (1988). bail above. See bail to the action. bail below. See bail to the sheriff. bail common. Hist. A fictitious surety filed by a defen dant in a (usu. minor) civil action. -Also termed common bail; straw bail. "[Tlhe Common Pleas made a distinction between common and special bail, allowing the former, in cases where the defendant voluntarily appeared to the process, or where the damage expressed in it appeared to be but of a trifling amount, and requiring the latter only, when the plaintiff's demand or the damage he had sustained appeared to be something conSiderable. In time therefore, in common cases, every defendant took the liberty of offering John Doe and Richard Roe, for his bail .... " I George Crompton, Practice Common-Placed: Rules and Cases of Practice in the Courts of King's Bench and Common Pleas Ixi (3d ed. 1787). bail to the action. Hist. A surety for a civil defendant arrested by a mesne process (Le., a process issued during the lawsuit) . If the defendant lost the lawsuit, the bail to the action was bound either to pay the judgment or to surrender the defendant into custody. -Also termed bail above; special bail. Cf. bail to the sheriff. bail to the sheriff. Hist. A person who pledged to the sheriff that a defendant served with process during a civil action would appear on the writ's return day. - Also termed bail below. Cf. bail to the action. "This kind of bail is called bail to the sheriff, because given to that officer, and for his security; and bail be/ow, because subordinate or preliminary to bail to the action or speCial bail, which is termed bail above." 1 Alexander M. Burrill, A Law Dictionary and Glossary 174 (2d ed. 1867). common bail. See bail common. discretionary bail. Bail set in an amount that is subject to judicial discretion. [Cases: Bail special bail. See bail to the action. straw bail. See bail common. S. Archaic. Legal custody of a detainee or prisoner who obtains release by giving surety for a later appearance. 6. Canadian law. A lease. bail-a-rente. A lease in perpetuity. 161 bail emphyteotique. A renewable lease for a term of years that the lessee may prolong indefinitely. bail, vb. (l6c) 1. To obtain the release of (oneself or another) by providing security for a future appearance in court <his parents bailed him out of jail>. [Cases: Bail C= 39.] 2. To release (a person) after receiving such security <the court bailed the prisoner>. [Cases: Bail C=39.] 3. To place (personal property) in someone else's charge or trust <bail the goods with the ware house>. bailable, ad). (Of an offense or person) eligible for bail. bailable offense. See OPPENSE (1). bailable process. See PROCESS. bail above. See bail to the action under BAIL (4). bail absolute. See BAIL (1). bail-a.-rente. See BAIL (6). bail below. See bail to the sheriff under BAIL (4). bail bond. See BOND (2). bail bondsman. See BAILER (1). Bail Clause. The clause in the Eighth Amendment to the U.S. Constitution prohibiting excessive bail. This clause was derived from similar language in England's Bill of Rights (1689). bail commissioner. 1. An adjudicator or official empow ered to hold an emergency hearing to set bail when a hearing cannot be held during regular court hours . A bail commissioner does not review other judge's bail decisions. 2. An officer appOinted to take bail bonds. - Also termed commissioner of bail. [Cases: Bail C=48.] 3. Hist. A court-appointed officer who made a written acknowledgement of bail in civil cases. bail common. See BAIL (4). Bail Court. Hist. An ancillary court of Queen's Bench responsible for ensuring that bail sureties were worth the sums pledged (i.e., hearing justifications) and for handling other procedural matters . The court was established in 1830 and abolished in 1854. -Also termed Practice Court. bail dock. A small compartment in a courtroom used to hold a criminal defendant during trial. -Often short ened to dock. -Also spelled bale dock. See DOCK (3). bailee. (16c) A person who receives personal property from another, and has possession of but not title to the property . A bailee is responsible for keeping the property safe until it is returned to the owner. See BAILMENT. [Cases: Bailment bailee policy. See INSURANCE POLICY. bail emphytiotique. See BAIL (6). bail-enforcement agent. See BOUNTY HUNTER. bailer. (16c) 1. One who provides bail as a surety for a criminal defendant's release. -Also spelled bailor. Also termed bail bondsman; bailsman. 2. BAILOR (1). bailiff. (l4c) 1. A court officer who maintains order during court proceedings . In many courts today, bailiwick the bailiff also acts as crier, among other responsibili ties. See CRIER. Also termed (in England and Wales) usher; (in Scotland) macer. 2. A sheriff's officer who executes writs and serves processes. [Cases: Sheriffs and Constables C::J24.] bailiff-errant. Hist. A bailiff appointed by the sheriff to deliver writs and other process within a county. Cf. bailiffs of franchises. bailiffs offranchises. His!. Bailiffs who executed writs and performed other duties in privileged districts that were outside the Crown's (and therefore the sheriffs) jurisdiction. Cf. bailiffs-errartt. "Bailiffs of Franchises are those who are appointed by every Lord within his Uberty, to do such Offices therein, as the Bailiff Erran t does at large in the County." Thomas Blount, Noma-Lexicon: A Law-Dictionary (1670). bailiffs of hun dreds . Hist. Bailiffs appointed by a sheriff to collect fines, summon juries, attend court sessions, and execute writs and process in the county district known as a hundred. See HUNDRED. bailiffs of manors. Hist. Persons appointed to super intend the estates of the nobility . These bailiffs col lected fines and rents, inspected buildings, and took account of waste, spoils, and misdemeanors in the forests and demesne lands. bound bailiff. Hist. A deputy sheriff placed under bond to ensure the faithful performance of assigned duties. Also termed bumbailiff "The sheriff being answerable for the misdemesnors of these bailiffs, they are therefore usually bound in a bond for the due execution of their office, and thence are called bound-bailiffs; which the common people have corrupted into a much more homely appellation [Le., bumbailiff]." 1 William Blackstone, Commentaries on the Laws of England 334 (1765). bumbailiff. 1. BrE. S

aries on the Laws of England 334 (1765). bumbailiff. 1. BrE. Slang. A bailiff of the lowest rank who performs the most menial tasks, such as arrest ing debtors and serving writs . In British English, "bum" is slang for a person's buttocks. Some sources suggest that bumbailiffs are so called because they often approached debtors from behind before arrest ing them. 2. See bound bailiff high bailiff. Hist. A bailiff attached to a county court, responsible for attending court sessions, serving sum monses, and executing orders, warrants, and writs. special bailiff. Hist. A deputy sheriff appointed at a liti gant's request to serve or execute some writ or process related to the lawsuit. bail in error. Security given by a defendant who intends to bring a writ of error on a judgment and desires a stay of execution in the meantime. See appeal bond, supersedeas bond under BOND (2). bailivia. See BAILIWICK. bailiwick (bay-l;::l-wik). The office, jurisdiction, or district of a bailiff; esp., a bailiffs territorial jurisdiction. -Also termed bailivia; baliva; balliva. Cf. constablewick. "In the early days a village was called a 'wick.' Each village had a bailiff who was its peace officer. His authority was limited to the territory of the wick. A bailiff was popularly bail-jumping referred to as a 'bailie,' and before long a bailie's wick was expressed as his 'bailiwick.' And in time this word came to be used to indicate the special territory over which a peace officer exercises his authority as such. Although it may be changed by statute, the normal situation is that the bailiwick of a policeman is his city, the bailiwick of a sheriff is his county and the bailiwick of a state officer, such as a member of the Highway Patrol, is the state." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 1096 (3d ed. 1982). bail-jumping, n. (1881) The criminal offense of failing to appear in court after having been released on bail. See Model Penal Code 242.8. See rUMP BAIL. [Cases: Bail bail-jumper, n. bailment:(16c) 1. A delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose, usu. under an express or implied-in-fact contract. -Unlike a sale or gift of personal property, a bailment involves a change in pos session but not in title. Cf. PAWN. [Cases: Bailment ~ 1.] "The customary definition of a bailment considers the transaction as arising out of contract. Thus Justice Story defines a bailment as 'a delivery of a thing in trust for some special object or purpose, and upon a contract express or implied, to conform to the object or purpose of the trust' Uoseph Story, Bailments 5 (9th ed. 1878)]. There has, however, been a vigorous dissent to this insistence on the contractual element in bailments. Professor Williston ... defines bailments broadly 'as the rightful possession of goods by one who is not the owner' [4 Samuel Williston, Law of Contracts 2888 (rev. ed. 1936)] .... It is obvious that the restricted definition of a bailment as a delivery of goods on a contract cannot stand the test of the actual cases. The broader definition of Professor Williston is pref erable." Ray Andrews Brown, The Law of Personal Property 73, at 252,254 (2d ed. 1955). "Although a bailment is ordinarily created by the agreement of the parties, resulting in a consensual delivery and accep tance of the property, such a relationship may also result from the actions and conduct of the parties in dealing with the property in question. A bailment relationship can be implied by law whenever the personal property of one person is acquired by another and held under circum stances in which principles of justice require the recipient to keep the property safely and return it to the owner." SA Am. Jur. 2d Bailment 1 (1997). actual bailment. (1821) A bailment that arises from an actual or constructive delivery of property to the bailee. bailment for hire. A bailment for which the bailee is compensated, as when one leaves a car with a parking attendant. Also termed lucrative bailment. Cf. bailment for mutual benefit. bailment for mutual benefit. (1868) A bailment for which the bailee is compensated and from which the bailor receives some additional benefit, as when one leaves a car with a parking attendant who will also wash the car while it is parked. Cf. bailment for hire. bailment for sale. A bailment in which the bailee agrees to sell the goods on behalf of the bailor; a consign- ment. [Cases: Bailment Sales ~457.1 bailment for sole benefit of bailor. See gratuitous bailment. 162 constructive bailment. (1843) A bailment that arises when the law imposes an obligation on a possessor of personal property to return the property to its rightful owner, as with an involuntary bailment. Cf. involuntary bailment. gratuitous bailment. (1811) A bailment for which the bailee receives no compensation, as when one borrows a friend's car. _ A gratuitous bailee is liable for loss of the property only if the loss is caused by the bailee's gross negligence. Also termed naked bailment; depositum; naked deposit; gratuitous deposit; deposit; bailment for sole benefit of bailor. involuntary bailment. (1840) A bailment that arises when a person accidentally, but without any negli gence, leaves personal property in another's posses sion. _ An involuntary bailee who refuses to return the property to the owner may be liable for conver sion. Also termed involuntary deposit. See aban doned property, lost property, mislaid property under PROPERTY. Cf. constructive bailment. lucrative bailment. See bailment for hire. naked bailment. See gratuitous bailment. 2. The personal property delivered by the bailor to the bailee. [Cases: Bailment ~4.13. The contract or legal relation resulting from such a delivery. [Cases: Bailment 4. The act of posting bail for a criminal defen dant. 5. The documentation for the posting of bail for a criminal defendant. bailor (bay-lor or bay-lilr). (17c) 1. A person who delivers personal property to another as a bailment. Also spelled bailer. 2. BAILER (1). bailout, n. 1. A rescue of an entity, usu. a corporation or an industry, from financial trouble. 2. An attempt by a business to receive favorable tax treatment of its profits, as by withdrawing profits at capital-gain rates rather than distributing stock dividends that would be taxed at higher ordinary-income rates. [Cases: Internal Revenue~37501 bailout stock. See STOCK. bailpiece. 1. Hist. A document recording the nature of the bail granted to a defendant in a civil action; specif., a surety issued to attest the act of offering bail 2. More modernly, a warrant issued to a surety upon which the surety may arrest the person bailed by him. -The bail piece was filed with the court and usu. was Signed by the defendant's sureties. See BAIL (2); RECOGNIZANCE. Sometimes written bail piece. Cf. EXONERETUR. bail-point scale. A system for determining a criminal defendant's eligibility for bail, whereby the defendant either will be released on personal recognizance or will have a bail amount set according to the total number of points given, based on the defendant's background and behavior. bail revocation. (1950) The court's cancellation of bail previously granted to a criminal defendant. [Cases: Bail ~73.LJ bailsman. See BAILER (1). 163 bail to the action. See BAIL (4). bail to the sheriff. See BAIL (4). bairn's part. See LEGITIM. bait advertising. See BAIT AND SWITCH. bait and switch. (1967) 1. A sales practice whereby a merchant advertises a low-priced product to lure cus tomers into the store only to induce them to buy a higher-priced product. Most states prohibit the bait and switch when the original product is not actually available as advertised. Cf. LOSS LEADER. Also termed bait advertising. [Cases: Antitrust and Trade Regulation 163, 477.] 2. The unethical practice of offering im attractive rate or premium to induce a person to apply for a loan or contract, with approval contingent on some condition, and then telling the person that the offered rate is not available but that a higher one can be substituted. [Cases: Antitrust and Trade Regulation 477.] Baker v. Selden doctrine. See MERGER DOCTRINE (1). balance, vb. (16c) 1. To compute the difference between the debits and credits of (an account) <the accoun tant balanced the company's books>. 2. To equalize in number, force, or effect; to bring into proportion <the company tried to balance the ratio of mid-level managers to assembly-line workers>. 3. To measure competing interests and offset them appropriately <the judge balanced the equities before granting the motion>. -balance, n. balance billing. A healthcare provider's practice of requiring a patient or other responsible party to pay any charges remaining after insurance and other payments and allowances have been applied to the total amount due for the provider's services. balanced budget. See BUDGET. balanced economy. See ECONOMY. balanced fund. See MUTUAL FUND. balance of convenience. A balancing test that courts use to decide whether to issue a preliminary injunc tion stopping the defendant's allegedly infringing or unfair practices, weighing the benefit to the plaintiff and the public against the burden on the defendant. - Also termed balance of hardship. [Cases: Injunction (;=c 138.15.] balance of power. Int' llaw. A relative equality of force between countries or groups of countries, as a result of which peace is encouraged because no country or group is in a position to predominate. balance of probability. See PREPONDERANCE OF THE EVIDENCE. balance of sentence suspended. (1942) A sentencing dis position in which a criminal defendant is sentenced to jail but is credited with the time already served before sentencing, resulting in a suspension of the remaining sentence and release of the defendant from custody. Cf. SENTENCED TO TIME SERVED. [Cases: Sentencing and Punishment 1158.] ballot balance sheet. (18c) A statement of an entity's current financial position, disclosing the value of the entity's assets, liabilities, and owners' equity. Also termed statement of financial condition; statement of condi tion; statement of financial position. Cf. INCOME STATE MENT. balance-sheet insolvency. See INSOLVENCY. balance-sheet test. See balance-sheet insolvency under INSOLVENCY. balancing test. (1951) A judicial doctrine, used esp. in constitutional law, whereby a court measures com peting interests as between individual rights and governmental powers, or between state authority and federal supremacy -and decides which interest should prevail. bale. A package of goods wrapped in cloth and marked so as to be identifiable on a bill oflading. baliva. See BAILIWICK. ballistics. (18c) 1. The science of the motion of projec tiles, such as bullets. 2. The study of a weapon's firing characteristics, esp. as used in criminal cases to deter mine a gun's firing capacity and whether a particular gun fired a given bullet. balliva. See BAILIWICK. ballivo amovendo (bCl-h-voh ay-moh-ven-doh). [Latin "a bailiff to be removed"] Hist. A writ to remove from office a bailiff who does not have sufficient land in the bailiwick as required by the Statute of Westminster (1285). balloon loan. See LOAN. balloon note. See NOTE (1). balloon payment. See PAYMENT. balloon-payment mortgage. See MORTGAGE. ballot, n. 1. An instrument, such as a paper or ball, used for casting a vote. [Cases: Elections C=:, 126(5),215.] 2. The system of choosing officers by a recorded vote, such as by marking a paper. absentee ballot. A ballot that a voter submits, some times by mail, before an election. Also termed absentee vote. See absentee voting under VO'I'lNG. [Cases: Elections (;=c 126(6),216.1.1 bullet ballot. See bullet vote under VOTE (1). butterfly ballot. A punchcard ballot that opens like a book and usu. has arrows pointing to the punchhole beside a candidate's name . The butterfly ballots used in Florida during the 2000 presidential elections produced widespread controversy because the layout of the candidates' names on the ballots allegedly confused voters and caused them to cast votes mis takenly for candidates they did not support. [Cases

the ballots allegedly confused voters and caused them to cast votes mis takenly for candidates they did not support. [Cases: Elections exhausted ballot. See exhausted vote under VOTE (1). joint ballot. A vote by legislators of both houses sitting together as one body. ballot box preferential ballot. See preferential vote under VOTE (1). secret ballot. A vote cast in such a way that the person voting cannot be identified. Cf Australian ballot. [Cases: Elections 126(6),215.] 'The secret ballot, when used to protect citizens when choosing their representatives, is a hallmark of a demo cratic system of government; but, when it is used to conceal a public official's vote, it violates the fundamental tenet of an elected or appointed official's ultimate accountability to the electorate," Op. Tex. Att'y Gen. H-1l63 (1978). spoiled ballot. A ballot reflecting a vote that cannot be counted because it was cast in a form or manner that does not comply with the applicable rules. See illegal vote under VOTE (1). [Cases: Elections ~ 186(4).] 3. A vote in a series of votes that is not conclusive until one candidate attains the necessary majority or supermajority <the candidate was nominated on the 21st ballot>. 4. A list of candidates running for office <four candidates are on the ballot>. ballot, vb. Australian ballot. A uniform ballot printed by the gov- ernment, listing all eligible candidates, and marked in secret . Before Australian ballots became standard, candidates often printed their own ballots with only their name, and watchers at polling places could see whose ballot a voter was casting. Loosely termed secret ballot. [Cases: Elections C~:> 126(5), 164.) Massachusetts ballot. A ballot in which, under each office, the candidates' names appear in alphabetical order alongside their party designations . This is a type of Australian ballot. office-block ballot. A ballot that lists the candidates' names under the title of the office sought without mentioning the candidates' party affiliations. [Cases: Elections (;:::::c 126(5), 168(1), 173.] party-column ballot. A ballot that lists the candidates' names in separate columns by political party regard less of the offices sought by the candidates. [Cases: Elections 168(1),173.] Texas ballot. A ballot that the voter marks for the can didates that he or she does not want elected . The Texas ballot is particularly useful when the number of candidates only slightly exceeds a large number of representatives being elected. [Cases: Elections ~ 180(1).] ballot box. A locked box into which ballots are depos ited. Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement of Hazardous Wastes Within Africa. A 1991 treaty prohibiting the importation of hazardous wastes into Africa and restricting the transfer of wastes among African nations . The treaty's objectives are to protect human health and the environment from the dangers posed by hazardous wastes by banning their importa tion, banning the dumping of waste in seas and internal waters, and reducing waste generation. Only a nation that is a member of the Organization of African Unity 164 (OAU) can become a party to the Bamako Conven tion. Often shortened to Bamako Convention. ban, n. 1. Hist. A public proclamation or summons . Bans dealt with a variety of matters, such as the calling to arms of a lord's vassals or the proclamation that an offender was henceforth to be considered an outlaw. 2. Eccles. law. An authoritative ecclesiastical prohibition; an interdict or excommunication. 3. BANNS OF MATRI MONY. -Also spelled bann. ban, vb. To prohibit, esp. by legal means. banality (b<l-nal-i-tee), n. Hist. Fr. Can. law. A lord's right to make his vassals use his own wine press, oven, mill, etc. bane (bangk or bongk). [French) A bench; esp., the bench on which one or more judges sit. -Also spelled bank. Also termed bancus. See EN BANC. banco (bang-koh). 1. A seat or bench of justice. See EN BANC. 2. A tract ofland cut offby the shifting of a river's course; esp., land that has become cut offin such a manner from the country it originally belonged to. See AVULSION (2). bancus (bang-k<ls). [Law Latin "bench"] Hist. English law. A court or tribunal. bancus reginae (bang-k<ls r<l-jI-nee). See QUEEN'S BENCH. bancus regis (bang-bs ree-j<ls). See KING'S BENCH. bancus superior (bang-bs s<>-peer-ee-<lr). Upper bench . The King's Bench was so called during the Protectorate (1653-1659). -Abbr. b.s. -Also termed bancus publicus ("public bench"). Band E. abbr. Breaking and entering. See BURGLARY (2). bands. Two strips of white cloth suspended from the front of a clerical-style collar, worn by advocates when appearing in the courts of the United Kingdom. bane. Hist. A malefactor or murderer; a person whose criminal act calls for the raising of the hue and cry. banish, vb. See EXILE. bank. (ISc) 1. A financial establishment for the deposit, loan, exchange, or issue of money and for the transmis sion of funds; esp., a member of the Federal Reserve System . Under securities law, a bank includes any financial institution, whether or not incorporated, doing business under federal or state law, if a sub stantial portion of the institution's business consists of receiving deposits or exercising fiduciary powers similar to those permitted to national banks and if the institution is supervised and examined by a state or federal banking authority; or a receiver, conservator, or other liquidating agent of any of the above institutions. 15 USC A 78c(a)(6). [Cases: Banks and Banking C=: 2, 232,289,359.]2. The office in which such an establish ment conducts transactions. "A bank is a quasi public institution, for the custody and loan of money, the exchange and transmission of the same by means of bills and drafts, and the issuance of its own promissory notes, payable to bearer. as currency, 165 or for the exercise of one or more of these functions, not always necessarily chartered, but sometimes so, created to subserve public ends, or a financial institution regulated by law .... A bank is wholly a creature of statute doing business by legislative grace and the right to carryon a banking business through the agency of a corporation is a 'franchise' which is dependent on a grant of corporate powers by the state." 1A Michie on Banks and Banking 2, at 5-6 (1993). bank for cooperatives. A bank within a system of banks established to provide a permanent source of credit to farmers' cooperatives and supervised by the Farm Credit Administration. [Cases: Banks and Banking <:::='401-409.] collecting bimk. (1834) In the check-collection process, any bank handling an item for collection, except for the payor bank. UCC 4-105(5). [Cases: Banks and Banking C=>156-163.] commercial bank. (18c) A bank authorized to receive both demand and time deposits, to make loans, to engage in trust services, to issue letters of credit, to rent time-deposit boxes, and to provide similar services. correspondent bank. A bank that acts as an agent for another bank, or engages in an exchange of services with that bank, in a geographical area to which the other bank does not have direct access. custodian bank. A bank or trust company that acts as custodian for a clearing corporation and that is super vised and audited by a state or federal authority. depositary bank. (1848) The first bank to which an item is transferred for collection. UCC 4-105(2). [Cases: Banks and Banking <:::=' 120, 121, 137, 158.] drawee bank. See payor bank. Federal Home Loan Bank. See FEDERAL HOME LOAN BANK. federal intermediate credit bank. One of a system of twelve regional banks created in 1923 to discount obli gations of agricultural credit corporations and similar institutions making short-term loans to farmers and ranchers . The system is now merged with federal land banks to create the federal farm-credit system. [Cases: United States <:::='53(7).] federal land bank. See FEDERAL LAND BANK. intermediary bank. (1896) A bank to which an item is transferred in the course of collection, even though the bank is not the depositary or payor bank. UCC 4-105(4). investment bank. A bank whose primary purpose is to acquire financing for businesses, esp. through the sale of securities . An investment bank does not accept deposits and, apart from selling securities, does not deal with the public at large. See INVEST MENT BANKER. [Cases: Brokers C=>2.] member bank. A bank that is a member of the Federal Reserve System. -Also termed reserve bank. See FEDERAL RESERVE SYSTEM. [Cases: Banks and Banking <:::='359.] bank mutual savings bank. A bank that has no capital stock and in which the depositors are the owners. See SAV INGS-AND-LOAN ASSOCIATION. [Cases: Banks and Banking <:::='289; Building and Loan Associations <:::=' 1.] national bank. A bank incorporated under federal law and governed by a charter approved by the Comptrol ler of the Currency. A national bank must use the term "national," "national bank," or "national associa tion" as part of its name. [Cases: Banks and Banking <:::='232,238.] negotiating bank. A financial institution that discounts or purchases drafts drawn under a letter of credit issued by another bank. [Cases: Banks and Banking <:::=' 191.] nonbank bank. A financial institution that either accepts demand deposits or makes commercial loans, but, unlike traditional banks, does not do both at the same time and therefore can avoid federal regula tions on bank ownership . Nonbank banks were esp. prolific in the 1980s, but amendments to the definition of a bank under federal law have essentially closed this loophole. nonmember bank. A bank that is not a member of the Federal Reserve System. See FEDERAL RESERVE SYSTEM. payor bank. (1911) A bank that is asked to pay the amount of a negotiable instrument and, on the bank's acceptance, is obliged to pay that amount; a bank by which an item is payable as drawn or accepted . Because the bank is the drawee of a draft, it is also termed a drawee bank. UCC 4-105(3). [Cases: Banks and Banking <:::=' 137, 158.] presenting bank. (1862) A nonpayor bank that presents a negotiable instrument for payment. UCC 4-105(6). [Cases: Banks and Banking <:::=' 158.] private bank. An unincorporated banking institution owned by an individual or a partnership and, depend ing on state statutes, mayor may not be subject to state regulation. remitting bank. A payor or intermediary bank that pays or transfers an item. reserve bank. See member bank. respondent bank. A bank, association, or other entity that exercises fiduciary powers, that holds securities on behalf of beneficial owners, and that deposits the securities for safekeeping with another bank, associa tion, or other entity exercising fiduciary powers. SEC Rule 14a-1(k) (17 CFR 240.14a-1(k)). savings-and-loan bank. See SAVINGS-AND-LOAN ASSO CIATION. savings bank. (1817) A bank that makes primarily home mortgage and some other consumer loans, receives deposits and pays interest on them, and may offer checking accounts . Historically, savings banks did not provide any checking services. [Cases: Banks and Banking <:::='289.] state bank. A bank chartered by a state and super vised by the state banking department. .A state bank must have FDIC insurance on deposits but need not become a member of the Federal Reserve System to obtain the insurance. A state bank that is a member of the Federal Reserve is regulated by the state banking department and by the Federal Reserve. Nonmember state banks are regulated by both the state banking department and the FDIC. [Cases: Banks and Banking ~2-6.] bank, vb. (l8c) 1. To keep money at <he banks at the downtown branch>. 2. To deposit (funds) in a bank <she banked the prize money yesterday>. 3. Slang. To lend money to facilitate (a transaction) <who banked the deal?> . The lender's consideration usu. consists of a fee or an interest in the property involved in the transaction. bankable paper. See PAPER. bank acceptance. See banker's acceptance under ACCEP- TANCE (4). bank account. See ACCOUNT. bank-account trust. See Totten trust under TRUST. bank bill. See BANKNOTE. bankbook. See PASSBOOK. bank charter. See CHARTER (3). bank credit. See CRED

bankbook. See PASSBOOK. bank charter. See CHARTER (3). bank credit. See CREDIT (4). bank discount. The interest that a bank deducts in advance on a note. See DISCOUNT (2). bank draft. See DRAFT. banker. A person who engages in the business of banking. bankerout, adj. Archaic. Indebted beyond the means of payment; bankrupt. -Also spelled bankrout. banker's acceptance. See ACCEPTANCE (4). banker's bill. See finance bill under BILL (6). banker's lien. See LIEN. banker's note. See NOTE (1). bank examiner. A federal or state official who audits banks with respect to their financial condition, man agement, and policies. -Sometimes shortened to examiner. [Cases: Banks and Banking ~ 17.] bank for cooperatives. See BANK. bank fraud. See FRAUD. bank holding company. A company that owns or controls one or more banks . Ownership or control of 25 percent is usu. enough for this purpose. -Abbr. BHC. [Cases: Banks and Banking ~521-528.] banking. The business carried on by or with a bank. Banking Act of 1933. See GLASS-STEAGALL ACT. banking day. (l8c) 1. Banking hours on a day when a bank is open to the public for carrying on substantially all its banking functions . Typically, if the bookkeep ing and loan departments are closed by a certain hour, the remainder of that day is not part of that bank's banking day. 2. A day on which banks are open for banking business. "'Banking day' is defined in [UCC ] 4-104(l)(c) [now 4-1 04(a)(3)]. The definition was designed to exclude from the 'banking day' all bank holidays (although some states added specifics on holidays) as well as the portions of a day on which one or more of the substantial departments of the bank closed off their services to the public, even though it remained open for accepting deposits and withdrawing funds as well as continuously processing items for payment or for dispatch. Clearly, when night depositaries came into vogue, their existence did not extend the 'banking day.' The present existence and growing use of so-called 24-hour teller machines also does not extend the banking day. The nature of the banking day is sufficiently tenuous that banks would do well to fix a definite cutoff hour under subsection 4-107(1)." William D. Hawkland, Uniform Com mercial Code Series 4-104:01, at 4-43 (1984). banking game. A gambling arrangement in which the house (Le., the bank) accepts bets from all players and then pays out winning bets and takes other bettors' losses. [Cases: Gaming ~6, 68(0.5).] bank night. A lottery in which a prize is awarded to a person (often a theater patron) whose name is drawn randomly from a hopper. [Cases: Lotteries ~3.] banknote. A bank-issued promissory note that is payable to bearer on demand and that may circulate as money. -Also written bank note. -Also termed bank bill. [Cases: Banks and Banking ~ 196-212.] spurious banknote. 1. A banknote that is legitimately made from a genuine plate but that has forged sig natures of the issuing officers, or the names of ficti tious officers. 2. A banknote that is not a legitimate impression from a genuine plate, or is made from a counterfeit plate, but that is signed by the persons shown on it as the issuing officers. -Also termed spurious bank bill. bank rate. See INTEREST RATE. bankrout. See BANKEROUT. Bankr. Rep. abbr. Bankruptcy Reporter. -Also abbre viated B.R. bankrupt, adj. Indebted beyond the means of payment; insolvent. -Also spelled (archaically) bankerout; bankrout. -bankrupt, vb. bankrupt, n. (16c) 1. A person who cannot meet current financial obligations; an insolvent person . This term was used in bankruptcy statutes until 1979, and is still commonly used by nonbankruptcy courts. But the Bankruptcy Code uses debtor instead of bankrupt. 2. DEBTOR (2). cessionary bankrupt. Archaic. A person who forfeits all property so that it may be divided among creditors. For the modern near-equivalent, see CHAPTER 7. [Cases: Bankruptcy ~2221.] bankruptcy. (l8c) 1. A statutory procedure by which a (usu. insolvent) debtor obtains financial relief and undergoes a judicially supervised reorganization or liq uidation of the debtor's assets for the benefit of credi tors; a case under the Bankruptcy Code (Title 11 of the 167 United States Code) . For various types of bankruptcy under federal law, see the entries at CHAPTER. -Also termed bankruptcy proceeding; bankruptcy case. [Cases: Bankruptcy ~200l.1 "There are two general forms of bankruptcy: (1) liquidation and (2) rehabilitation. Chapter 7 of the Code is entitled 'Liquidation.' The terms 'straight bankruptcy' and 'bank ruptcy' often are used to describe liquidation cases under the bankruptcy laws because the vast majority of bank ruptcy cases are liquidation cases. In a typical Chapter 7 liquidation case, the trustee collects the nonexempt property of the debtor, converts that property to cash, and distributes the cash to the creditors. The debtor gives up all the nonexempt property she owns at the time of the filing of the bankruptcy petition and hopes to obtain a discharge. Chapters 11, 12, and 13 of the Bankruptcy Code contemplate debtor rehabilitation. In a rehabilitation case, creditors look to future earnings of the debtor, not to the property of the debtor at the time of the initiation of the bankruptcy proceeding, to satisfy their claims. The debtor generally retains its assets and makes payments to creditors, usually from postpetition earnings, pursuant to a court-approved plan." David G. Epstein et aI., Bankruptcy 1-5, at 8-9 (1993). family-farmer bankruptcy. See CHAPTER 12 (2). farmer bankruptcy. See CHAPTER 12 (2). involuntary bankruptcy. (1842) A bankruptcy case commenced by the debtor's creditors (usu. three or more), or, if the debtor is a partnership, by fewer than all the general partners. 11 USCA 303(b). -Also termed involuntary proceeding. [Cases: Bankruptcy ~2281.1 liquidation bankruptcy. See CHAPTER 7 (2). malicious bankruptcy. An abuse of process by which a person wrongfully petitions to have another person adjudicated a bankrupt or to have a company wound up as insolvent. [Cases: Bankruptcy~2187.1 straight bankruptcy. See CHAPTER 7 (2). voluntary bankruptcy. (18c) A bankruptcy case com menced by the debtor. 11 USCA 301. [Cases: Bank ruptcy ~2251.1 2. The field oflaw dealing with the rights of debtors who are financially unable to pay their debts and the rights of their creditors. -Also termed bankruptcy law. 3. The status of a party who has declared bankruptcy under a bankruptcy statute. -Also termed statutory insol vency. 4. Informally, the fact of being financially unable to pay one's debts and obligations as they become due; insolvency . The roots of bankruptcy are the Latin bancus (table) and ruptus (broken). The English word bankruptcy derives from the Italian banca rotta, refer ring to the medieval Italian custom of breaking the counter of a financially failed merchant. -Also termed (in sense 4) failure to meet obligations. Bankruptcy Act. The Bankruptcy Act of 1898, which governed bankruptcy cases filed before October 1, 1979. bankruptcy case. A proceeding commenced by filing a voluntary or involuntary petition under a bankruptcy statute. See BANKRUPTCY (1). bankruptcy clause. See IPSO FACTO CLAUSE. Bank Secrecy Act Bankruptcy Code. Title I of the Bankruptcy Reform Act of 1978 (as amended and codified in 11 USCA), which governs bankruptcy cases filed on or after October 1. 1979. [Cases: Bankruptcy ~2011.1 Bankruptcy Court. A U.S. district court subunit com prising the bankruptcy judges within the district and exclusively concerned with administering bankruptcy proceedings. [Cases: Bankruptcy ~2121, 2123.] bankruptcy crime. A crime committed in connection with a bankruptcy case, such as a trustee's embez zling from the debtor's estate. 18 USCA 152-57. See bankruptcy fraud under FRAUD. [Cases: Bankruptcy ~3861.] bankruptcy estate. A debtor's legal and equitable inter ests in property at the beginning of a bankruptcy case where the property is subject to administration. See 11 USCA 541. [Cases: Bankruptcy~2491-2559.1 bankruptcy fraud. See FRAUD. bankruptcy judge. See JUDGE. bankruptcy law. 1. INSOLVENCY LAW. 2. Traditionally, a statute that provides some relief and protection to an insolvent debtor or to the debtor's creditors. Cf. INSOL VENCY LAW. 3. BANKRUPTCY (2). bankruptcy petition. See voluntary petition under PETITION. bankruptcy plan. (1944) A detailed program of action formulated by a debtor or its creditors to govern the debtor's rehabilitation, continued operation or liqui dation, and payment of debts . The bankruptcy court must approve the plan before it is implemented. - Often shortened to plan. -Also termed plan of reor ganization (for Chapter 11); plan of rehabilitation (for Chapter 13). See ARRANGEMENT WITH CREDITORS. [Cases: Bankruptcy~3531-3570, 3704.] bankruptcy proceeding. (1828) 1. BANKRUPTCY (1). 2. Any judicial or procedural action (such as a hearing) related to a bankruptcy. [Cases: Bankruptcy ~ 2156.] bankruptcy-remote entity. A business entity formed in a manner designed to minimize the risk of becoming a debtor in a bankruptcy case . The entity's organi zational charter usu. requires at least one independent director to be appointed, as well as a unanimous vote by the entity's directors, before a bankruptcy petition may be filed. The business is usu. a special-purpose entity established to perform limited functions, such as to purchase and hold accounts receivable or other finan cial assets that generate revenue. It also has only one or a few primary creditors, to reduce the likelihood of an involuntary bankruptcy. A bankruptcy-remote entity will sometimes issue securities instead of receiving a loan from a financial institution. See SINGLE-PURPOSE PROJECT; SPECIAL-PURPOSE ENTITY; project financing under FINANCING. bankruptcy trustee. See TRUSTEE (2). Bank Secrecy Act. A federal statute that requires banks and other financial institutions to maintain records of customers' transactions and to report certain domestic and foreign transactions . This act, passed by Congress in 1970, is designed to help the federal government in criminal, tax, and other regulatory investigations. 12 USCA lS29b; 31 USCA 5311. [Cases: Banks and Banking C=> 16; United States C=>34.] bank statement. See STATEMENT OF ACCOUNT (1). bank-statement rule. (1974) Commercial law. The prin ciple that if a bank customer fails to examine a bank statement and any items returned with it, and report to the bank within a reasonable time any unauthorized payments because of a material alteration or forgery, the customer may be precluded from complaining about the alteration or forgery. UCC 4-406. [Cases: Banks and Banking C=> 14S(3, 4), 174.] bann, n. [Law Latin] 1. BAN. 2. Hist. The power of a court to issue an edict, esp. one relating to the public peace. 3. Hist. The edict itself. -Also termed bannum. "An essential attribute of judicial power in the later periods is the bann, the right to command and forbid. Etymologi cally, bann comes from a root signifying loud speech. It may have meant at first the order issued by the leader in war; later an administrative command or ordinance. Hence it covers the official proclamation of peace in the court, and then it comes to mean the peace itself. In the older Frank sources, bann appears in the Latin as sumo, and sumo regis is the king's peace. Extra sermonem regis ponere means to put out of the peace. Another Latin or rather Latinized German word is forisbannire, from which comes our word 'banish.'" Munroe Smith, The Development of European Law 35 (1928). bannitio (bd-nish-ee-oh or ba-). [Law Latin] Hist. Expul sion by a ban or public proclamation; banishment. See EXILE; BAN (1). bannitus (ban-d-tds). [Law Latin] Hist. A person under a ban; an outlaw. See BAN (1). banns of matrimony. Family law. Public notice of an int

ban; an outlaw. See BAN (1). banns of matrimony. Family law. Public notice of an intended marriage . The notice is given to ensure that objections to the marriage would be voiced before the wedding. Banns are still common in many churches. - Also spelled bans of matrimony. -Also termed banns of marriage. [Cases: Marriage C=>24.] "A minister is not obliged to publish banns of matrimony unless the persons to be married deliver to him, at least seven days before the intended first publication, a notice in writing stating the Christian name and surname and the place of residence of each of them and the period during which each has resided there .... Banns are to be published in an audible manner and in the form of words prescribed by the rubric prefixed to the office of matrimony in the Book of Common Prayer on three Sundays preceding the solemnisation of marriage during morning service or, if there be no morning service on a Sunday on which they are to be published, during evening service." Mark Hill, Ecclesiastical Law 136 (2d ed. 2001) (dealing with practice in the Church of England). bannum. See BANN. bar, n. (14c) 1. In a courtroom, the railing that separates the front area, where court business is conducted, from the back area, which provides seats for observers; by extension, a similar railing in a legislative assembly <the spectator stood behind the bar>. 2. The whole body oflawyers qualified to practice in a given court or jurisdiction; the legal profession, or an organized subset of it <the attorney's outrageous misconduct disgraced the bar>. See BAR ASSOCIATION. [Cases: Attorney and Client C=>31.] integrated bar. A bar association in which membership is a statutory requirement for practicing law; a usu. statewide organization oflawyers in which member ship is compulsory in order for a lawyer to have a law license. -Also termed unified bar. specialty bar. A voluntary bar association for lawyers with special interests, specific backgrounds, or common practices. voluntary bar. A bar association that lawyers need not join to practice law. 3. A particular court or system of courts <case at bar>. Originally, case at bar referred to an important case tried "at bar" at the Royal Courts ofJustice in London. 4. BAR EXAMINATION <Pendarvis passed the bar>. 5. A barrier to or the destruction of a legal action or claim; the effect of a judgment for the defendant <a bar to any new lawsuit>. Cf. MERGER (6). 6. A plea arresting a lawsuit or legal claim <the defendant filed a bar>. See PLEA IN BAR. [Cases: Pleading C=> lOS, 109.] 7. Patents. Statutory preclusion from patentability, based on pub lication, use, sale, or other anticipatory activity that occurred before an invention's critical date and thereby negated the invention's novelty . Under 102 of the Patent Act, a person is not entitled to a patent if (1) before the date of invention, the same invention was publicly known or used by others in this country or was patented or described in a printed publication anywhere in the world; (2) more than one year before the U.S. filing date, the invention was patented or described in a printed publication anywhere in the world or was in public use, on sale, or offered for sale in the U.S.; (3) the invention has been abandoned by the applicant; (4) the invention was first patented by the applicant or its representatives in a foreign country before the U.S. filing date, and the foreign application was filed more than 12 months before the U.S. filing; (5) before the date of invention, the invention was described in a patent granted on an application filed by someone else in the U.S.; (6) the inventor did not invent the subject matter of the application; or (7) the invention was pre viously made in this country by someone else who has not abandoned, suppressed, or concealed it. -Also termed statutory bar. [Cases: Patents c=>so.]8. Trade marks. Statutory preclusion of certain marks from listing on the Principal Register. Under 15 USCA 1052, a mark is not entitled to registration if: (1) it consists of immoral, deceptive, or scandalous matter; (2) it falsely suggests a connection with, or brings into contempt or disrepute, a living or dead person, an insti tution, a belief, or a nation's symbols; (3) it depicts or simulates the flag, coat of arms, or other insignia of the U.S., a state, a municipality, or a foreign nation; (4) it consists of a geographic designation that, when used on wines or spirits, designates a place other than the goods' actual origin; (5) it consists of the name, 169 signature, or portrait of a living person who has not consented to registration; (6) it is likely to deceive or to cause confusion or mistake because when applied to specific goods and services it resembles someone else's unabandoned mark registered in the u.s. Patent and Trademark Office, or an unabandoned mark or trade name previously used in the U.S.; (7) it is descriptive or deceptively misdescriptive of the goods or services; (8) it is primarily geographically descriptive or primarily geographically misdescriptive of the goods or services; (9) it is primarily a surname; or (10) it comprises matter that, as a whole, is functional. [Cases: Trademarks 1072, 1073.]. bar, vb. (l6c) To prevent, esp. by legal objection <the statute of limitations barred the plaintiff's wrongful death claim>. bar association. (1872) An organization of members of the legal profeSSion <several state bar associations sponsor superb CLE programs>. See BAR (2). [Cases: Attorney and Client (::::::>31.] local bar association. A bar association organized on a local level, such as an association within a county or city . Local bar associations are voluntary in mem bership. state bar association. (1883) An association or group of attorneys that have been admitted to practice law in a given state; a bar association organized on a statewide level, often with compulsory membership . State bar associations are usu. created by statute, and member ship is often mandatory for those who practice law in the state. Unlike voluntary, professional-development bar associations such as the American Bar Associa tion, state bar associations often have the author ity to regulate the legal profession, by undertaking such matters as disciplining attorneys and bringing lawsuits against those who engage in the unauthor ized practice of law. bar date. Patents. The date by which a u.s. patent appli cation must be filed to avoid losing the right to receive a patent. In the U.S., the bar date for a patent appli cation is one year after the invention is disclosed in a publication or patented in another country, or put into public use, sold, or offered for sale in the U.S. <Since the invention was offered for domestic sale on January 1, 2000, the bar date for the U.S. patent application is January 1,2001.> Cf. absolute novelty under NOVELTY. [Cases: Patents (::::::>67.1.] bareboat charter. See CHARTER (8). barebones indictment. See INDICTMENT. bare-bones legislation. See skeletal legislation under LEGISLATION. bare license. See LICENSE. bare licensee. See LICENSEE. bare ownership. See trust ownership under OWNER SHIP. bare possibility. See naked possibility under POSSIBIL ITY. bargain and sale bare promise. See gratuitous promise under PROMISE. bare steerageway. Maritime law. The lowest speed neces sary for a vessel to maintain course. [Cases: Collision C=82(2).] bare trustee. See TRUSTEE (1). bar examination. (1875) A written test that a person must pass before being licensed to practice law . The exam varies from state to state. -Often shortened to bar. [Cases: Attorney and Client Multistate Bar Examination. A nationally standard ized part of a state bar examination given as a multi ple-choice test covering broad legal subjects, including constitutional law, contracts, criminal law, evidence, property, and torts. Abbr. MBE. bar examiner. (1902) One appointed by the state to test applicants (usu. law-school graduates) by prepar ing, administering, and grading the bar examination. [Cases: Attorney and Client (::::::>6.] bargain, n. (14c) An agreement between parties for the exchange of promises or performances . A bargain is not necessarily a contract because the consideration may be insufficient or the transaction may be illegal. See BARGAIN SALE; informal contract under CONTRACT. [Cases: Contracts (::::::>l.J bargain, vb. "A bargain is an agreement of two or more persons to exchange promises, or to exchange a promise for a per formance. Thus defined, 'bargain' is at once narrower than 'agreement' in that it is not applicable to all agreements, and broader than 'contract' since it includes a promise given in exchange for insufficient consideration. It also covers transactions which the law refuses to recognize as contracts because of illegality." Samuel Williston, A Treatise on the Law of Contracts 2A, at 7 (Walter H.E. Jaeger ed., 3d ed. 1957). catching bargain. An agreement on unconscionable terms to purchase real property from -or loan money secured by real property to - a person who has an expectant or reversionary interest in the property. illegal bargain. A bargain whose formation or perfor mance is criminal, tortious, or otherwise contrary to public policy. plea bargain. See PLEA BARGAIN. time-bargain. See FUTURES CONTRACT. unconscionable bargain. See unconscionable agree- ment under AGREEMENT. bargain and sale. (16c) 1. A negotiated transaction, usu. for goods, services, or real property. 2. Hist. A written agreement for the sale ofland whereby the buyer would give valuable consideration (recited in the agreement) without having to enter the land and perform livery of seisin, so that the parties equitably "raised a use" in the buyer. The result of the transaction was to leave the leg'al estate in fee simple in the seller and to create an equitable estate in fee simple in the buyer until legal title was transferred to the buyer by delivery of a deed. In most jurisdictions, the bargain and sale has been bargain-and-sale deed replaced by the statutory deed of grant. [Cases: Deeds ~22.] bargain-and-sale deed. See DEED. bargained-for exchange. Contracts. A benefit or det riment that the parties to a contract agree to as the price of performance . The Restatement of Contracts (Second) defines consideration exclusively in terms of bargain, but it does not mention benefit or detriment. [Cases: Contracts bargainee. The buyer in a bargained-for exchange. bargaining agent. See AGENT (2). bargaining unit. A group of employees authorized to engage in collective bargaining on behalf of all the employees of a company or an industry sector. [Cases: Labor and Employment C:::;, 1171.J bargain money. See EARNEST MONEY. bargainor (bahr-gan-or or bahr-gd-nar). The seller in a bargained -for \;;)l'_ll~'l1l'1.\;;. bargain purchase. See BARGAIN SALE. bargain sale. (1898) A sale of property for less than its fair market value . For tax purposes, the difference between the sale price and the fair market value must be taken into account. And bargain sales between family members may lead to gift-tax consequences. - Also termed bargain purchase. bargain theory of consideration. (1927) The theory that a promise or performance that is bargained for in exchange for a promise is consideration for the promise. This theory underlies all bilateral contracts. See bilat eral contract under CONTRACT. [Cases: Contracts 50.] "[C]lassical contract theory tended to associate the doctrine of consideration with the concept of bargain. The emphasis of classical law shifted away from actual benefits and detri ments to the mutual promises which constitute a wholly executory contract. American lawyers developed from this trend a 'bargain theory of consideration' and similarly in English law a more modern basis for the doctrine of con sideration was found by some lawyers in the notion that a contract is a bargain in which the consideration is the price of the bargain. Allied to this is the supposed rule that nothing can be treated as a consideration unless it is seen by the parties as the 'price' of the bargain." P.S. Atiyah, An Introduction to the Law of Contract 119 (3d ed. 1981). barometer stock. See STOCK. baron. 1. Hist. A man who held land directly from the Crown in exchange for military service. 2. Hist. A husband. See BARON ET FEME. 3. One of the judges of the former English or Scottish Courts of Exchequer. - Abbr. B. See BARONS OF THE EXCHEQUER. 4. A noble rank; specif., the lowest rank in the British peerage. 5. Generally, a lord or nobleman. barones scaccarii. See BARONS OF THE EXCHEQUER. baronet. Hist. A non-noble hereditary title that descends in the male line only . Baronets originated in 1611 when James I began selling the title as a way to raise revenue. 170 baron et feme (bar-an ay fem). [Law French] Hist. Husband and wife. See COVERTURE;

on et feme (bar-an ay fem). [Law French] Hist. Husband and wife. See COVERTURE; FEME COVERT. baronial court. See COURT. Baron Parke's rule. See GOLDEN RULE. Barons of the Exchequer. Hist. The six judges of the Court of Exchequer . After the 1873 transfer of the Court's jurisdiction to the High Court ofJustice, the judges were known as justices of the High Court. Also termed barones scaccarii. See COURT OF EXCHEQUER. barony (bar-dn-ee). 1. See BARON (1). 2. See TENURE (2). bar pilot. See branch pilot under PILOT. barra (bah-fa). [Law French "bar"] Hist. 1. See PLEA IN BAR. 2. A barrister. Also spelled barre. barrator (bar-d-tdr), n. (ISc) 1. One who commits barratry (in any sense). 2. A fomenter of quarrels and lawsuits; one who stirs up dissension and litigation among people. - Also spelled barretor. Cf. CHAMPERTOR. "Barrator or Barater(Fr. Barateur, a Deceiver) Is a common mover or maintainer of Suits, Quarrels, or Parts. either in Courts or elsewhere in the Country, and is himself never quiet, but at variance with one or other." Thomas Blount, Nomo-Lexicon: A LawDictionary (1670). barratry (bar-;J-tree or bair-), n. (I5c) 1. Vexatious incitement to litigation, esp. by soliciting potential legal clients . Barratry is a crime in most jurisdictions. A person who is hired by a lawyer to solicit business is called a capper. See CAPPER (1). [Cases: Champerty and Maintenance ~4(.5), 5(.5),9.] 2. Maritime law. Fraudulent or grossly negligent conduct (by a master or crew) that is prejudicial to a shipowner. [Cases: Seamen ~14; Shipping~61.J "[S]ailing out of port in violation of an embargo, or without paying the port duties, or to go out of the regular course upon a smuggling expedition, or to be engaged in smug gling against the consent of the owner, are all of them acts of barratry, equally with more palpable and direct acts of violence and fraud, for they are wilful breaches of duty by the master. It makes no difference in the reason of the thing, whether the injury the owner suffers be owing to an act of the master, induced by motives of advantage to himself, or of malice to the owner, or a disregard of those laws which it was the master's duty to obey, and which the owner relied upon him to observe. It is, in either case, equally barratry." 3 James Kent, Commentaries on American Law*305-06 (George Comstock ed., 11th ed. 1866). 3. The buying or selling of ecclesiastical or governmen tal pOSitions. 4. The crime committed by a judge who accepts a bribe in exchange for a favorable decision. Cf. BRIBE. -barratrous (bar~;Hr;)s), adj. barrier to entry. An economic factor that makes it dif ficult for a business to enter a market and compete with existing businesses. "Strictly speaking, a barrier to entry is a condition that makes the longrun costs of a new entrant into a market higher than the long-run costs of the existing firms in the market; a good example is a regulatory limitation on entry. The term is also used, more questionably, as a synonym for heavy startup costs." Richard A. Posner, Economic AnalYSis ofLaw 10.8, at 227 (2d ed. 1977). barring of entail. (18c) The freeing of an estate from the limitations imposed by an entail and permitting its free 171 disposition . This was anciently done by means of a fine or common recovery, but later by a deed in which the tenant and next heir join. -Also termed breaking of entail; disentailment. See ENTAIL. [Cases: Deeds 127; Estates in Property C=> 12.] barrister (bar-is-tar), n. (ISc) In England or Northern Ireland, a lawyer who is admitted to plead at the bar and who may argue cases in superior courts . In many other Commonwealth nations, the legal profession is similarly divided into barristers and solicitors. Cf. SOLICITOR (4). barristerial (bar-a-steer-ee-al), adj. inner barrister. 1. QUEEN'S COUNSEL. 2. A student member of an Inn of Court. outer barrister. A barrister called to the bar, but not called to plead from within it, as a Queen's Counsel or (formerly) serjeant-at-law is permitted to do; a bar rister belonging to the outer bar. -Also termed utter barrister. See CALL TO THE BAR; OUTER BAR. vacation barrister. A barrister who, being newly called to the bar, for at least three years must attend inn of court functions that are held during the long vacation. barter, n. (15c) The exchange of one commodity for another without the use of money. -barter, vb. base, adj. Servile; (of a villein) holding land at the will of the lord. See base estate under ESTATE (1). base and meridian. Property. The east-west and north south lines used by a surveyor to demarcate the position of the boundaries of real property . A base line runs east to west. A meridian line runs north to south. base court. See COURT. based on. Copyright. Derived from, and therefore similar to, an earlier work . If one work is "based on" an earlier work, it infringes the copyright in the earlier work. To be based on an earlier work, a later work must embody substantially similar expression, not just substantially . similar ideas. See derivative work under WORK (2). base estate. See ESTATE (1). base fee. (1800) 1. See FEE (2). 2. See fee simple determin able under FEE SIMPLE. Basel Conventiou on the Control of Transboundary Movements of Hazardous Waste and Their DisposaL A 1992 treaty establishing formal rules and procedures for the transportation and disposal of hazardous waste across national borders. -The United States had not ratified the treaty as of 2003. -Often shortened to Basel Convention. [Cases: Treaties baseline.lnt'llaw. The line that divides the land from the sea, by which the extent of a state's coastal jurisdiction is measured. [Cases: International Law baseline documentation. The record of a parcel of real property's condition and conservation values at a specific time, Signed by the landowner and the land trust when a conservation easement is created, and used to monitor and enforce the easement's terms. See IRS Reg. 1.170A-14(g)(5). basis basement court. (1995) Slang. A low-level court of limited jurisdiction, such as a police court, traffic court, municipal court, or small-claims court. base-point pricing. 1. A pricing method that adds the price at the factory to the freight charges, which are calculated as the cost of shipping from a set location to the buyer's location . The chosen shipping base point may be the same for all customers, or it may be a specific, established location, such as a manufacturing plant nearest to the buyer. 2. A uniform pricing policy in which the cost of transportation to all locations is presumed to be the same. base service. Hist. Agricultural work performed by a villein tenant in exchange for the lord's permission to hold the land. Cf. KNIGHT-SERVICE. base tenure. See TENURE. bask crops. See CROPS. bask-form policy. See INSURANCE POLICY. basic mistake. See MISTAKE. bask norm. See NORM. basic patent. See pioneer patent under PATENT (3). basilica (ba-sil-i-k<}). [Greek] Hist. 1. (cap.) A 60-book Greek summary ofJustinian's Corpus Juris Civilis, with comments (scholia) . The Basilica ("royal law") was begun by the Byzantine emperor Basil I, and it served as a major source of the law of the Eastern Empire from the early 10th century until Constantinople's fall in 1453.2. A colonnaded hall used as a law court or for trading; specif., in ancient Rome, a public building usu. used as a court of justice . A basilica typically featured a nave with two aisles and an apse. Architects adopted the basilica's layout for the design of early Christian churches. basis. (14c) 1. A fundamental principle; an underlying fact or condition. 2. Tax. The value assigned to a taxpay er's investment in property and used primarily for com puting gain or loss from a transfer of the property . Basis is usu. the total cost of acquiring the asset, includ ing the purchase price plus commissions and other related expenses, less depreciation and other adjust ments. When the aSSigned value represents the cost of acquiring the property, it is also called cost basis. - Also termed tax basis. [Cases: Internal Revenue 3195; Taxation PI. bases. adjusted basis. (1932) Basis increased by capital improvements and decreased by depreciation deduc tions. [Cases: Internal Revenue C=>3197; Taxation C=>3467-3469.] "[lit is well to consider the word 'adjusted' in the term 'adjusted basis: Often, after property is acquired, certain adjustments (increases or decreases to the dollar amount of the original basis) must be made. After these adjust ments, the property then has an 'adjusted basis.'" Michael D. Rose & John C. Chommie. Federal Income Taxation 6.04, at 300 (3d ed. 1988). adjusted cost basis. (1934) Basis resulting from the original cost of an item plus capital additions minus depreciation deductions. basis point carryover basis. (1952) The recipient's basis in property transferred by gift or in trust, equaling the transf:' eror's basis. -Also termed substituted basis. [Cases: Internal Revenue C:=:' 3201.] stepped-up basis. (1951) The beneficiary's basis in property transferred by inheritance, equaling the fair market value of the property on the date of the decedent's death or on the alternate valuation date. [Cases: Internal Revenue substituted basis. (1932) 1. The basis of property transferred in a tax-free exchange or other specified transaction. [Cases: Internal RevenueC:=:'3184.]2. See carryover basis. basis point. One-hundredth of 1 %; .01% . Basis points are used in computing investment yields (esp. of bonds) and in apportioning costs and calculating interest rates in real-estate transactions. -Abbr. bp. Basket Clause. See NECESSARY AND PROPER CLAUSE. basse justice (bahs zhoo-stees). [Law French "low justice"] Hist. A feudal lord's right to personally try a person charged with a minor offense. bastard. (14c) 1. See illegitimate child under CHILD. 2. A child born to a married woman whose husband could not be or is otherwise proved not to be the father . Because the word is most commonly used as a slur, its use in family-law contexts is much in decline. [Cases: Children Out-of-Wedlock adulterine bastard. A child born to a married woman whose husband is not the father of the child . The rebuttable presumption is generally that a child born of the marriage is the husband's child. A child born to a woman by means of artificial insemination may be termed an adulterine bastard, but most jurisdictions prohibit a husband who has consented to the artificial insemination from denying paternity and responsi bility for the child. Cf. ARTIFICIAL INSEMINATION. bastard eisne. See EISNE. bastardy. See ILLEGITIMACY. bastardy proceeding. See PATERNITY SUIT. bastardy process. See PATERNITY SUIT. bastardy statute. Archaic. A criminal statute that punishes an unwed father for failing to support his child . These statutes have been found unconsti tutional because they unfairly discriminate against fathers and do not punish unwed mothers. So they are unenforceable. batable ground (bay-t;)-b;)l). (16c) Land of uncertain ownership . Batable (or debatable) ground originally referred to certain lands on the border of England and Scotland before the 1603 union of the two kingdoms. batch number. See SERIES CODE. Bates number. See BATES-STAMP NUMBER. Bates stamp, n. 1. A self-advancing stamp machine used for affixing an identifying mark, usu. a number, to a document or to the individual pages of a document. 2. 172 BATES-STAMP NUMBER. -Sometimes (erroneously) written Bate stamp. Bates-stamp, vb. To affix a mark, usu. a number, to a document or to the individual pages of a document for the purpose of identifying and distinguishing it in a series of documents <the paralegal is Bates-stamping the records described in the request for discovery>. Sometimes (erroneously) written Bate-stamp. Bates-stamp number. The identifying number that is affixed to a document or to the individual pages of a document. The term gets its name from a self-advanc ing stamp machine made by the Bates Manufacturing Company

document. The term gets its name from a self-advanc ing stamp machine made by the Bates Manufacturing Company.lhe number is typically used to identify doc uments produced during discovery. -Often shortened to Bates number; Bates stamp. bathtub conspiracy. See intra-enterprise conspiracy under CONSPIRACY. Batson challenge. See CHALLENGE (1). battered child. See CHILD. battered-child syndrome. (1962) Family law. A con stellation of medical and psychological conditions of a child who has suffered continuing injuries that could not be accidental and are therefore presumed to have been inflicted by someone close to the child, usu. a caregiver . Diagnosis typically results from a radiological finding of distinct bone trauma and per sistent tissue damage caused by intentional injury, such as twisting or hitting with violence. The phrase was first used by Dr. Henry Kempe and his colleagues in a 1962 article entitled "The Battered Child Syndrome," which appeared in the Journal of the American Medical Association. As a result of research on battered-child syndrome, the Children's Bureau of the United States Department of Health, Education, and Welfare drafted a model statute requiring physicians to report serious cases of suspected child abuse. See CHILD-ABUSE AND -NEGLECT REPORTING STATUTE. [Cases: Criminal Law (::;:::474.4(4).] battered-person syndrome. See BATTERED-WOMAN SYNDROME. battered-spouse syndrome. See BATTERED-WOMAN SYNDROME. battered-wife syndrome. See BATTERED-WOMAN SYNDROME. battered woman. Family law. A woman who is the victim of domestic violence; a woman who has sufFered physical, emotional, or sexual abuse at the hands of a spouse or partner. See domestic violence under VIOLENCE. battered-woman syndrome. (1984) Family law. A con stellation of medical and psychological conditions of a woman who has suffered phYSical, sexual, or emotional abuse at the hands of a spouse or partner. Battered woman syndrome was first described in the early 19705 by Dr. Lenore Walker. It consists of a three-stage cycle of violence: (1) the tension-building stage, which may include verbal and mild physical abuse; (2) the acute 173 battering stage, which includes stronger verbal abuse, increased physical violence, and perhaps rape or other sexual abuse; and (3) the loving-contrition stage, which includes the abuser's apologies, attentiveness, kindness, and gift-giving. This syndrome is sometimes proposed as a defense to justify or mitigate a woman's killing of a man. Sometimes (more specif) termed battered-wife syndrome; (more broadly) battered-spouse syndrome; (broadly) battered-person syndrome. [Cases: Criminal Law (';:::>474.4(3).] battery, n. (16c) 1. Criminal law. The use of force against another, resulting in harmful or offensive contact. - Also termed criminal battery. [Cases: Assault and Battery "Criminal battery, sometimes defined briefly as the unlawful application offorce to the person of another, may be divided into its three basic elements: (1) the defendant's conduct (act or omission); (2) his 'mental state,' which may be an intent to kill or injure, or criminal negligence, or perhaps the doing of an unlawful act; and (3) the harmful result to the victim, which may be either a bodily injury or an offensive touching." Wayne R. LaFave & Austin W. Scott Jr., Criminal Law 7.15, at 685 (2d ed. 1986). aggravated battery. (IS B) A criminal battery accom panied by circumstances that make it more severe, such as the use of a deadly weapon or the fact that the battery resulted in serious bodily harm . In most state statutes, aggravated battery is classified as both a misdemeanor and a felony. [Cases: Assault and Battery (:;:::> 54.] sexual battery. (1974) The forced penetration of or contact with another's sexual organs or the perpe trator's sexual organs . In most state statutes, sexual battery is classified as both a misdemeanor and a felony. Cf. RAPE. [Cases: Assault and Battery Rape~l.l simple battery. (I877) A criminal battery not accom panied by aggravating circumstances and not result ing in serious bodily harm . Simple battery is usu. a misdemeanor but mav rise to a felony if the victim is, for instance, a child 0; a senior citizen. [Cases: Assault and Battery C=48.] 2. Torts. An intentional and offensive touching of another without lawful justification. Also termed tortious battery. [Cases: Assault and Cf. ASSAULT. batter, vb. "A battery is the actual application of force to the body of the prosecutor. It is, in other words, the assault brought to completion. Thus, if a man strikes at another with his cane and misses him, it is an assault; if he hits him, it is a battery. But the slightest degree of force is suffiCient, provided that it be applied in a hostile manner; as by pushing a man or spitting in his face. Touching a man to attract his attention to some particular matter, or a friendly slap on the back is not battery, owing to the lack of hostile intention." 4 Stephen's Commentaries on the Laws of England 62-63 (L. Crispin Warmington ed., 21st ed. 1950). battle of the forms. (1947) The conflict between the terms of standard forms exchanged between a buyer and a seller during contract negotiations . In its original version, UCC 2-207 attempted to resolve battles of the forms by abandoning the common-law BeA requirement of mirror-image acceptance and provid ing that a definite expression of acceptance may create a contract for the sale of goods even though it contains different or additional terms. -Also termed UCC battle oftheforms. See MIRROR-IMAGE RULE. [Cases; Sales (>;;)22(4),23(4).] "The rules of offer and acceptance are difficult to apply in certain circumstances known as the 'battle of the forms' where parties want to enter into a contract, but jockey for position in an attempt to use the rules of law so as to ensure that the contract is on terms of their choosing." P.S. Atiyah, An Introduction to the Law of Contract 54 (3d ed. 1981). batture (b<'J-tyoor or ba-toor). [French] Soil, stone, or other material that builds under water and mayor may not break the surface . If batture builds against a bank and breaks the surface, it becomes alluvion. See ALLUVION (2). [Cases: Navigable Waters (;::::>44(6); Waters and Water Courses (:;:::>93.] Baumes Law. A statute that provides for stricter criminal prosecution and penalties up to life imprisonment for an offender who has four convictions for felonies or certain misdemeanors . The first Baumes Law, named for New York state Senator Caleb H. Baumes, was passed by the New York legislature in 1926. Cf. THREE-STRIKES LAW. [Cases: Sentencing and Punish ment (;::::> 1200-1426.] bawd. Archaic. A person, usu. a woman, who solicits customers for a prostitute; a madam. See DISORDERLY HOUSE (2). Cf. PIMP. lCases; Prostitution (:;:::> 17.] bawdy house. See DISORDERLY HOUSE (2). bay. Int'llaw. An inlet of the sea, over which the coastal country exercises jurisdiction to enforce its environ mental, immigration, and customs laws. [Cases: Inter national Law (>;:::>5.] historic bay. A bay that, because of its shape, would not be considered a bay subject to the coastal country's jurisdiction, except for that country's long-standing unilateral claim over it; a bay over which the coastal country has traditionally asserted and maintained dominion. Bayh-Dole Act. Patents. A federal statute that permits the U.S. Government to take title to or require licensing of nongovernmental inventions made by small busi nesses and nonprofit organizations while participat ing in federally funded programs . Under the Act, an entity funded by the federal government must timely disclose any invention made in the course of a federally funded program. The entity may elect to retain title and to file and prosecute a patent application covering the invention. If the entity retains title to the invention, the government may still "march in" to force the entity to grant exclusive or nonexclusive licenses in appro priate circumstances. The Act is codified in 35 USCA 200-212. Also termed Patent and Trademark Law Amendments Act. See MARCH-IN RIGHTS. [Cases: Patents United States (';=,97.] BCA. abbr. See business-continuation agreement under AGREEMENT. BCD BCD. See bad-conduct discharge under DISCHARGE (8). BCD special court-martial. See COURT-MARTIAL. BCIA. abbr. BERNE CONVENTION IMPLEMENTATION ACT. BEA. abbr. BUREAU OF ECONOMIC ANALYSIS. beadle (beed-dl). 1. Hist. A court crier with duties similar to those of a constable. See NUNTIUS (3). 2. Hist. Eccles. law. A minor parish officer who serves the vestry's needs in various ways, including giving notice of the vestry's meetings, executing its orders, and attending its inquests. 3. A macebearer at Oxford University or Cambridge University. Also spelled bedel. beak. ErE Slang. A magistrate or justice of the peace. bear, vb. 1. To support or carry <bear a heavy load>. 2. To produce as yield <bear interest>. 3. To give as testi mony <bear witness>. bear drive. See BEAR RAID. bearer. (l3c) One who possesses a negotiable instru ment marked "payable to bearer" or indorsed in blank. Banks and Banking 137; Bills and Notes U8,1S3.] bearer bill oflading. See BILL OF LADING. bearer bond. See BOND (3). bearer document. See bearer paper under PAPER. bearer instrument. See bearer paper under PAPER. bearer paper. See PAPER. bearer security. See SECURITY. bear hug. Slang. A (usu. hostile) takeover strategy in which the acquiring entity offers the target firm a price per share that is Significantly higher than market value, intending to squeeze the target into accepting. reverse bear hug. A maneuver by which a takeover target responds to a bidder's offer by showing a will ingness to negotiate but demanding a much higher price than that offered . This is usu. an antitakeover tactic. bear market. See MARKET. bear raid. Slang. High-volume stock selling by a large trader in an effort to drive down a stock price in a short time . Bear raids are prohibited by federal law. -Also termed bear drive. beat, n. 1. A law-enforcement officer's patrol territory. 2. A colloquial term for the principal county subdivision in some southern states, such as Alabama, Mississippi, and South Carolina. 3. A voting precinct. be at the horn. Scots law. See PUT TO THE HORN. beaupleader (boh-plee-dar). [Law French "fair pleading"] Hist. 1. A fine imposed for bad or unfair pleading. 2. A writ of prohibition that prevented a sheriff from taking a fine for bad pleading . 1he Statute of Marlbridge (1267) prohibited the taking of fines for this type of pleading. See PROHIBITION (2). 174 beauty contest. Slang. A meeting at which a major client interviews two or more law firms to decide which firm to hire. bederepre. See BEDRIP. bedrip. Hist. A copyhold tenant's service of reaping the landlord's grain. -Also spelled bederepre; biderepe. before-and-after theory. Antitrust. A method of deter mining damages tor lost profits (and sometimes over charges), whereby the plaintiff's profits are examined before, during, and after the violation to estimate the reduction in profits due to the defendant's violation. Also termed before-and-after method. Cf. YARDSTICK THEORY; MARKET-SHARE THEORY (1). [Cases: Antitrust and Trade Regulation (:::::e98S.] "In its simplest form. the [before-and-after] theory looks at the plaintiff's net profits before and after the injury period, discounts all dollars to their present value, and gives the plaintiff a sum that, before trebling, will bring its earnings during the injury period up to the same average level as its earnings during the noninjury periods." Herbert Hovenkamp, Economics and Federal Antitrust Law 16.7, at 450 (1985). before first action, adv. Patents. After the filing of a patent application but before the mailing of any office action by the U.S. Patent and Trademark Office examiner . For example, an applicant typically files an information disclosure statement before first action, and often files preliminary amendments as well. [Cases: Patents (:::::e 104.] before the fact. (17c) In advance of an event oflegal sig

Patents (:::::e 104.] before the fact. (17c) In advance of an event oflegal sig nificance. beg, vb. 1. To request earnestly; to beseech. 2. Hist. To request to be appointed as guardian for (a person). 3. Hist. To request that someone be appointed as guardian for. 4. To ask for charity, esp. habitually or pitiably. beggar, n. A person who communicates with people, often in public places, asking for money, food, or other necessities for personal use, often as a habitual means of making a living. beggar-thy-neighbor policy. A government's protec tionist course of action taken to discourage imports by raising tariffs and instituting nontariffbarriers, usu. to reduce domestic unemployment and increase domestic output. This term is sometimes applied to competitive currency devaluation. behavioral science. The body of disciplines (psychology, sociology, anthropology) that study human behavior. behoof, n. Archaic. A use, profit, or advantage that is part of a convevance <to his use and behoof>. behoove, vb. ' beige book. Slang. The popular name of the Federal Reserve's Summary of Commentary on Current Economic Conditions by Federal Reserve District, a publication that summarizes the economic conditions in each of the 12 Federal Reserve Bank regions . Each Federal Reserve Bank gathers information from reports submitted by bank and branch directors; through interviews with economists, market experts, and key 175 business contacts; and from other sources. The beige book is published eight times each year. Bekanntmachung im Patentblatt. [German] Patents. The date on which a Gebrauchsmuster (German petty patent) is published and made available to the public. belief, n. A state of mind that regards the existence of something as likely or relatively certain. belief-action distinction. (1966) Constitutional law. rn First Amendment law, the Supreme Court's distinc tion between allowing a person to follow any chosen belief and allowing the state to intervene if necessary to protect others from the practices of that belief. belief-duster. In critical legal studies, a group of uncon nected ideas or opinions that appear to be related when considered together in reference to a specific subject, such as racism, sexism, or religious intolerance. believe, vb. 1. To feel certain about the truth of; to accept as true. Cf. SUSPECT, vb. reasonably believe. To believe (a given fact or combina tion offacts) under circumstances in which a reason able person would believe. 2. To think or suppose. belligerency. Int 'llaw. 1. The status assumed by a nation that wages war against another nation. [Cases: War and National EmergencyC.:::> 1.]2. The quality of being bel ligerent; the act or state of waging war. belligerent, n. A country involved in a war or other armed international conflict. Cf. NEUTRAL (1). bel ligerent, adj. bellum (bel-am). [Latin] See WAR (1). bellum inter duos (bel-am in-tdr d[yjoo-ahs). [Law Latin] Hist. War between two persons; a duel. bellum jllstum (bel-am jas-tam). [Latinj Int'llaw. A just war; one that the proponent considers morally and . legally justifiable, such as a war against an aggressive, totalitarian regime. -Under Roman law, before war could be declared, the fetiales (a group of priests who monitored international treaties) had to certify to the Senate that just cause for war existed. With the adoption of the U.N. Charter, the bellum justum concept has lost its legal significance. The Charter outlaws the use of force except in self-defense. U.N. Charter arts. 2(4), 51 (59 Stat. 1031). -Also termed just war; justifiable war. bellwether stock. See barometer stock under STOCK. belong, vb. 1. To be the property of a person or thing <this book belongs to the judge>. See OWNERSHIP. 2. To be connected with as a member <they belong to the state bar>. belongings. 1. Personal property; EFFECTS. See personal property under PROPERTY. 2. All property, including realty. below, prep., adv. & ad}. 1. Beneath; under; underneath. 2. (Of a lower court) having heard or having the power to hear the case at issue in the first instance <court bench below>; at a lower level <the motion was heard below>. Cf. ABOVE. below-market loan. See interest-free loan under LOAN. below-the-line, adj. (1970) (Of a deduction) taken after calculating adjusted gross income and before calcu lating taxable income . Examples of below-the-line deductions are medical payments and local taxes. Cf. ABOVE-THE-LINE. Ben Avon Doctrine. The principle that due process entitles public utilities to judicial review of rates set by public-service commissions. Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287,40 S.Ct. 527 (1920). [Cases: Constitutional Law (;::=436l.] bench. (l3c) 1. The raised area occupied by the judge in a courtroom <approach the bench>. 2. The court consid ered in its official capacity <remarks from the bench>. 3. Judges collectively <bench and bar>. 4. The judges of a particular court <the Fifth Circuit bench>. cold bench. A court, esp. an appellate court, in which the judges are largely unfamiliar with the facts and issues of a case, typically because they have not reviewed the briefs or the record before hearing oral arguments. Cf. hot bench; lukewarm bench. "Let's take the cold bench ... The judges have read neither the briefs nor the record; they know nothing of the case, unless it is one of the few highly publicized cases that reach the newspapers a Dr. Sheppard or a Texas Gulf Sulphur case and represent less than 1 percent of all appellate cases. The judges have no preconceived notions as to how your case should be decided. They listen to your argument with an open mind." Samuel E. Gates, "Hot Bench or Cold Bench: When the Court Has Not Read the Brief before Oral Argument," in Counsel on Appeal 1 07, 115 (Arthur A. Char pentier ed., 1968). hot bench. A court, esp. an appellate court, in which, before oral argument, the judges thoroughly familiar ize themselves with the facts and issues of the case, usu. by reading the briefs and the record, and often prepare questions for counseL. In the United States today, courts are generally expected to be hot. Cf. cold bench; lukewarm bench. "[Al hot bench, in the narrow sense, is one on which all the judges have read the briefs and the salient parts of the record. The court, therefore, is generally familiar with the facts and the legal issues and has devoted some time to thinking about the case, perhaps even to the point of jotting down questions. Obviously, if the appellate tribunal reviewed your case at some prior stage in the proceedings, it must be conSidered hot. Likewise, if the court has had a good deal of experience in the area of law in which your case falls, I am inclined to classify that bench also as hot." Samuel E. Gates, "Hot Bench or Cold Bench: When the Court Has Not Read the Brief before Oral Argument," in Counsel on Appeal 107, 115-16 (Arthur A. Charpentier ed" 1968). lukewarm bench. A court, esp. an appellate court, in which only some of the judges, before oral argument, have familiarized themselves with the facts and issues of the case. Also termed tepid bench. Cf. hot bench; cold bench. "I must digress, for a moment to discuss what I choose to call the 'tepid,' or 'lukewarm,' bench. That'S the bench on which one or more of the panel try to read the briefs or are engaged in conversation with a colleague while the bench blotter argument is being presented. The judges cannot concen trate on either the brief or the oral argument. You can only hope that the chandelier will fall and fix their attention on at least one thing and that their consciences will so prick them that later, in the quiet of their chambers, they will apply themselves to a study of the briefs without distrac tion." Samuel E. Gates, "Hot Bench or Cold Bench: When the Court Has Not Read the Brief before Oral Argument," in Counsel on Appeal 107, 121-22 (Arthur A. Charpentier ed.,1968). tepid bench. See lukewarm bench. bench blotter. See ARREST RECORD (2). bench brief. See BRIEF. bench conference. See SIDEBAR CONFERENCE (1). bench docket. See DOCKET (1). bencher. A governing officer of an English Inn of Court; one of the Masters of the Bench. See INN OF COURT (1). bench legislation. See JCDGE-MADE LAW (2). benchmark. 1. Property. A mark made on a permanent object by a surveyor to serve as a uniform reference point in making topographic surveys and tidal obser vations. -Formerly also written bench mark. 2. A standard unit used as a basis for comparison. bench memo. (1975) 1. A short brief submitted by a lawyer to a trial judge, often at the judge's request. 2. A legal memorandum prepared by an appellate judge's law clerk to help the judge in preparing for oral argument and perhaps in drafting an opinion . A trial-court judge may similarly assign a bench memo to a law clerk, for use in preparing for hearing or trial or in drafting an opinion. 3. A memo that summarizes the facts and issues in a case, usu. prepared for a judge by a law clerk. bench parole. See bench probation under PROBATION. bench probation. See PROBATION. bench ruling. (1971) An oral ruling issued by a judge from the bench. bench trial. See TRIAL. bench warrant. See WARRANT (1). bene factum (ben-ay fak-t<lm). See BONUM FACTUM. benefice (ben-d-fis). 1. Hist. A feudal estate in land, held during the life of the tenant. See BENEFICIUM (4). "[TJhe vassal no longer owns the land, but 'holds' it 'of' the lord -the vassal has become a 'tenant' (from the Latin, 'tenere', to hold). The vassal's interest in the land so held, first called a 'benefice', is now a 'feudum', anglicised in modern law as 'fee.'" Peter Butt, Land Law 52 (3d ed. 1996). 2. Hist. Eccles. law. An estate held by the Catholic Church in feudal tenure. See BENEFICIUM (1), (2). 3. An ecclesiastical office such as a bishopric or parish; a preferment. 4. BENEFICIUM (3). benefice (bay-nay-fees). [French "benefit"] French law. A benefit or advantage; esp., a privilege given by law rather than by agreement of the parties. 176 benefice de discussion. [French] BENEFIT OF DISCUS SION. benefice de division. [French] BENEFIT OF DIVISION. benefice d'inventaire. [French] BENEFIT OF INVEN TORY. beneficial, adj. (15c) 1. Favorable; producing benefits <beneficial ruling>. 2. Consisting in a right that derives from something other than legal title <benefi cial interest in a trust>. beneficial association. See benevolent association under ASSOCIATION. beneficial enjoyment. See ENJOYMENT. beneficial holder of securities. A holder of equitable title to corporate stock . The stock is not registered under the holder's name in the corporation's records. beneficial improvement. See valuable improvement under IMPROVEMENT. beneficial interest. See INTEREST (2). beneficial owner. See OWNER. beneficial ownership. See OWNERSHIP. beneficial power. See POWER (5). beneficial use. See USE (1). beneficiary (ben-d-fish-ee-er-ee or ben-<l-fish-<l-ree), n. (17c) 1. A person for whose benefit property is held in trust; esp., one deSignated to benefit from an appoint ment, dispOSition, or assignment (as in a will, insur ance policy, etc.), or to receive something as a result of a legal arrangement or instrument. 2. A person to whom another is in a fiduciary relation, whether the relation is one of agency, guardianship, or trust. 3. A person who is initially entitled to enforce a promise, whether that person is the promisee or a third party. beneficiary, adj. contingent beneficiary. (1867) L A person deSignated by the testator to receive a gift if the primary benefi ciary is unable or unwilling to take the gift. Also termed contingency beneficiary. 2. A person deSig nated in a life-insurance policy to receive the proceeds if the primary beneficiary is unable to do so. -Also termed secondary beneficiary. [Cases: Insurance 3483,3485.] creditor beneficiary. (1894) A third-party beneficiary of a contract who is owed a debt that is to be satisfied by another party's performance under the contract. [Cases: Contracts (;:c;::, 187(1).] direct beneficiary. See intended benef

[Cases: Contracts (;:c;::, 187(1).] direct beneficiary. See intended beneficiary. donee beneficiary. (1925) A third-party beneficiary who is intended to receive the benefit of the contract's performance as a gift from the promisee. expectant beneficiary. See expectant distributee under DISTRIBUTEE. favored beneficiary. A beneficiary of a will who receives disproportionate amounts of the testator's property as compared with others having equal claims to the property, raising the specter of the beneficiary's undue 177 influence over the testator. See UNDUE INFLUENCE. [Cases: Wills ~ 154-166.] incidental beneficiary. (1901) 1. A third-party benefi ciary who is not intended to benefit from a contract and thus does not acquire rights under the contract. Cf. intended beneficiary. [Cases: Contracts ~ 187(1).] 2. A person to whom a settlor of a trust does not manifest an intention to give a beneficial interest but who may benefit from the trust's performance. income beneficiary. (1945) A person entitled to income from property; esp., a person entitled to receive trust income. [Cases: Trusts ~273.] intended beneficiary. (1845) A third-party benefi ciary who is intended to benefit from a contract and thus acquires rights under the contract as well as the ability to enforce the contract once those rights have vested. -Also termed direct beneficiary. Cf. inciden tal beneficiary. [Cases: Contracts ~ 187(1).] life beneficiary. (1953) One who receives payments or other benefits from a trust for life. [Cases: Trusts ~ 140.] primary beneficiary. (1850) The person designated in a life-insurance policy to receive the proceeds when the insured dies. secondary beneficiary. See contingent beneficiary (2). third-party beneficiary. (1894) A person who, though not a party to a contract, stands to benefit from the contract's performance . For example, if Ann and Bob agree to a contract under which Bob will render some performance to Chris, then Chris is a third party beneficiary. [Cases: Contracts ~ 187(1).] unborn beneficiary. A person who, though not yet born, is named in a general way as sharing in an estate or gift . An example might be a grandchild not yet born when a grandparent specifies, in a will, that Blackacre is to go to "my grandchildren." beneficiary heir. See HEIR. beneficio primo ecclesiastico habendo (ben-d-fish ee-oh pry-moh d-klee-z[h]ee-as-td-koh hd-ben-doh). [Latin "having the first ecclesiastical benefice"] Hist. A writ from the king to the lord chancellor ordering the appointment of a named person to the first vacant benefice. beneficium (ben-d-fish-ee-dm), n. [Latin "benefit"] 1. Roman law. A privilege, remedy, or benefit granted by law, such as the beneficium abstinendi ("privilege of abstaining"), by which an heir could refuse to accept an inheritance (and thereby avoid the accompanying debt). 2. Hist. A lease, generally for life, given by a ruler or lord to a freeman . Beneficium in this sense arose on the continent among the German tribes after the collapse of the Roman Empire. "All those to whom the Frankish king had given land and to whom the Frankish emperor had granted political authority had received it on certain conditions. They were the recipi' ents of royal favor -a beneficium. Their holding came to be so styled." Max Radin, Handbook of AngloAmerican Legal History 126 (1936). beneficium cedendarum actionum 3. Hist. English law. An estate in land granted by the king or a lord in exchange for services . Originally, a beneficium could not be passed to the holder's heirs, in contrast to feuds, which were heritable from an early date. Tenants, however, persisted in attempting to pass the property to their heirs, and over time the beneficium became a heritable estate. As this process occurred, the meaning of beneficium narrowed to a holding of an ecclesiastical nature. See BENEFICE (2). "Beneficia were formerly Portions of Land, etc. given by Lords to their Followers for their Maintenance; but after wards as these Tenures became Perpetual and Hereditary, they left their Name of Beneficia to the Livings of the Clergy, and retained to themselves the Name of Feuds. And Beneficium was an estate in land at first granted for Life only, so called, because it was held ex mero Beneficio of the Donor ... [blut at Length, by the Consent of the Donor, or his Heirs, they were continued for the Lives of the Sons of the Possessors, and by Degrees past into an Inheritance .... " Giles Jacob, A New LawDictionary (8th ed. 1762). "In England from almost, if not quite, the earliest moment of its appearance, the word feodum seems not merely to imply, but to denote, a heritable, though a dependent right. But if on the continent we trace back the use of this word, we find it becoming interchangeable with beneficium, and if we go back further we find beneficium interchangeable with precarium. A tenancy at will has, we may say, become a tenancy in fee .... The Norman conquest of England occurs at a particular moment in the history of this process. It has already gone far; the words feum, feudum, feodum are fast supplanting beneficium .... " 1 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward 167-68 (2d ed. 1898). 4. Hist. Eccles. law. A feudal tenure for life in church owned land, esp. land held by a layperson . Over time, this sense of beneficium faded, and it came to be restricted to that of an ecclesiastical living, i.e., a benefice. See BENEFICE (2), (3). "The pope became a feodal lord; and all ordinary patrons were to hold their right of patronage under this universal superior. Estates held by feodal tenure, being originally gratuitous donations, were at that time denominated bene ficia: their very name as well as constitution was borrowed, and the care of the souls of a parish thence came to be denominated a benefice." 4 William Blackstone, Commen taries on the Laws of England 106 (1769). 5. Hist. A benefit or favor; any particular privilege, such as benefit of clergy (beneficium clericale). 6. BENEFICE (3). -Also termed (in senses 3-5) benefice. beneficium abstinendi (ben-d-fish-ee-dm ab-sti-nen dI). [Latin "privilege of abstaining"] Roman law. The right of an heir to refuse an inheritance and thus avoid liability for the testator's debts. "[Tlhese heirs came also to be protected by the praetor, viz. by the jus or beneficium abstinendi. Provided they took care not to act as heir in any kind of way, then, whether they formally demanded the privilege or not, their own property could not be made liable for their ancestor's debts." RW. Leage, Roman Private Law 220 (C.H. Ziegler ed., 2d ed. 1930). beneficium cedendarum actionum (ben-d-fish-ee-dm see-den-day-rdm ak-shee-oh-ndm). [Latin "privilege of having actions made over"] Roman & Scots law. The right of a cosurety who might or might not have paid the debt to compel the creditor to give over the right of action against the debtor and the other cosure ties . Under Scots law, a cosurety's (or cocautioner's) right of action against the nonpaying cosurety arises on payment, without the necessity of compelling the creditor to assign the action. But in Roman law) the right of action arose before the paying of the debt. beneficium competentiae (ben-C1-fish-ee-C1m kom-pCl ten-shi-ee). [Latin "privilege of competency"] Roman & Scots law. A debtor's right to be ordered to pay only as much as the debtor reasonably could) so that after assigning his or her estate to creditors, the debtor kept enough to live on. See assignment for the benefit of creditors under ASSIGNMENT; SALVO BENEFICIO COM PETENTIAE. beneficium divisionis (ben-d-fish-ee-C1m di-vizh-ee-oh nis). See BENEFIT OF DIVISION. beneficium inventarii (ben-d-fish-ee-C1m in-ven-tay ree-I or in-ven-tair-ee-I). [Latin "with the benefit of inventory"] Roman law. The right of an heir to take an inventory within a set time before deciding whether to accept an inheritance . An heir could provision ally take the succession and disclaim responsibility for debts beyond the estate's value until the inventory was completed and the inheritance accepted or rejected. This right was introduced by Justinian. Also termed cum beneficio inventarii (kdm ben-d-fish-ee-oh in-ven tair-ee-I). beneficium ordinis (ben-a-fish-ee-C1m or-dCl-nis). [Latin "privilege of order"] Roman & Scots law. A surety's right to require a creditor to seek payment from the princi pal debtor belore seeking payment from the surety. See BENEFICE DE DISCUSSION. "Beneficium Ordinis ... by the civil law and our own, a cautioner, simply bound as such, is entitled to insist that the prinCipal be first discussed by extreme diligence." Hugh Barclay, A Digest of the Law of Scotland 76 (3d ed. 1865). beneficium separationis (ben-d-fish-ee-dm sep-d-ray shee-oh-nis). [Latin "privilege of separation"] Roman law. The right of a creditor of the deceased to have the property of the deceased separated from an heir's property . This separation protected the creditors by ensuring that the deceased's property was not used to pay the heir's creditors. -Also termed separatio bonorum. benefit, n. (14c) 1. Advantage; privilege <the benefit of owning a car>. 2. Profit or gain; esp., the consideration that moves to the promisee <a benefit received from the sale>. Also termed legal benefit; legal value. Cf. DETRIMENT (2). death benefit. (usu. pl.) (1873) A sum or sums paid to a beneficiary from a life-insurance policy on the death of an insured. fringe benefit. (1952) A benefit (other than direct salary or compensation) received by an employee from an employer, such as insurance, a company car, or a tuition allowance. -Often shortened (esp. in pl.) to benefit. [Cases: Labor and Employment (;=J 179.] general benefit. (1925) Eminent domain. The whole community's benefit as a result of a taking . It cannot be considered to reduce the compensation that is due the condemnee. [Cases: Eminent Domain peculiar benefit. See special benefit. pecuniary benefit. (17c) A benefit capable of monetary valuation. private benefit. See PRIVATE BENEFIT. special benefit. (1857) Eminent domain. A benefit that accrues to the owner of the land in question and not to any others . Any special benefits justify a reduc tion in the damages payable to the owner of land that is partially taken by the government during a public project. Also termed peculiar benefit. [Cases: Eminent Domain (;:::: 146.] 3. Financial assistance that is received from an employer, insurance, or a public program (such as social security) in time of sickness, disability, or unemploy ment <a benefit from the welfare office>. [Cases: Social Security and Public Welfare (;=J 140.5; Unemployment Compensation ~>40.] -benefit, vb. benefit association. See benevolent association under ASSOCIATION. benefit certificate. A written obligation to pay a named person a specified amount upon stipulated conditions. Benefit certificates are often issued by fraternal and beneficial societies. [Cases: Beneficial Associations (;:::: 18(1).] benefit of an earlier filing date. Patents & Trademarks. For a patent or trademark applicant, the advantage of being assigned the filing date of a related, earlier-filed application . Under 35 USCA 119: (1) a U.S. patent application is given the filing date of an earlier toreign application filed in accordance with the Paris Conven tion as long as the U.S. filing occurs not more than one year after the foreign filing; and (2) a continuing appli cation filed in accordance with 35 USCA 120 is given the filing date of an earlier-filed U.S. application. Simi larly, under 15 USCA 11 26(d), a U.S. trademark appli cant receives the filing date of an earlier-filed foreign application if: (I) the foreign application was filed in a Paris Convention country; and (2) the U.S. applica tion is filed within six months after the foreign applica tion. -Also termed benefit of priority filing date; claim of priority. [Cases: Patents (;=J 110.] benefit-of-bargain rule. See BENEFlT-OF-THE-BARGAIN RULE. benefit of cession. Civil law. A debtor's immunity from imprisonment for debt . The immunity arises when the debtor's property is assigned to

's immunity from imprisonment for debt . The immunity arises when the debtor's property is assigned to the debtor's credi tors. See CESSIO BONORUM. benefit of clergy. 1. At common law, the privilege of a cleric not to be tried for a felony in the King's Court <in the Middle Ages, any man who could recite the "neck verse" was granted the benefit of clergy> . Although clergy includes monks and nuns as well as priests, there are no known cases of women claiming or being 179 granted benefit of clergy. Congress outlawed benefit of clergy in federal courts in April 1790. It was abolished in England in 1827 but survived even longer in some American states, such as South Carolina, where it was successfully claimed in 1855. State v. Bosse, 42 S.C.L. (3 Rich.) 276 (1855). Also termed clergy privilege; clericale privilegium. See NECK VERSE. "Benefit of clergy was a remarkable privilege which, although now obsolete, was for centuries of great impor tance in criminal law. Some knowledge of it is even now essential for a proper understanding of common law crimes. After William the Conqueror separated the eccle siastical from the secular courts, the clergy put forward the claim that all persons in holy orders should be exempt from secular jurisdiction in all proceedings, civil or criminal. Eventually the rule was established that 'clerks' of all kinds, who committed any of the serious crimes termed felonies, could be tried only in an ecclesiastical court, and therefore were only amenable to such punishments as that court could inflict. Any clerk accused of such crime was accord ingly passed over to the bishop's court. He was there tried before a jury of clerks by the oaths of twelve compurgators; a mode of trial which usually ensured him an acquittaL" J.w. Cecil Turner, Kenny's Outlines of Criminal Law 75 (16th ed. 1952). "'Benefit of clergy,' in its origin, was the right of a clergy man not to be tried for felony in the King's Court. tn ancient times, when the Church was at the peak point of its power, it preempted jurisdiction over felony charges against cler gymen. It demanded that in any case in which a clergy man was charged with felony, the case be transferred to the Ecclesiastical Court for trial. The benefit was extreme because conviction of felony in the King's Court resulted in the sentence of death, whereas the Ecclesiastical Court did not make use of capital punishment." Rollin M. Perkins & Ronald N. Boyce, Criminal Law4 (3d ed. 1982). 2. Loosely, religious approval as solemnized by church ritual <the couple had several children without benefit of clergy> . This common use of the phrase is premised on a misunderstanding of its original meaning (sense 1). benefit of counsel. See RIGHT TO COUNSEL (1). benefit of discussion. Civil law. A guarantor's right to require a creditor to seek payment from the principal debtor before seeking payment from the guarantor. Also termed (in French law) benefice de discussion; (in Scots law) right of discussion. [Cases: Guaranty ~ 42(1),45,77(2).] "Benefit of Discussion. By common law a cautioner, bound simply as such, had right to insist that the creditor should discuss the prinCipal debtor, that is, exhaust his estate by diligence, before coming upon him for payment of the debt." William K. Morton & Dale A. Whitman, Manual of the Law of Scotland 299 (1896). benefit of division. Civil law. A surety's right to be sued only for a part of the debt proportionate to the number of solvent cosureties. Also termed (in Roman law) beneficium divisionis; (in French law) benefice de division; (in Scots law) right of division. [Cases: Princi pal and Surety ~66, 168, 169, 194.] benefit of inventory. Civil law. 1he principle that an heir's liability for estate debts is limited to the value of what is inherited, if the heir so elects and files an inventory of the estate's assets. Also termed benefice d'inventaire. [Cases: Descent and Distribution ~ 119.] bequest benefit of priority filing date. See BENEFIT OF AN EARLIER FILING DATE. benefit-of-the-bargain damages. See DAMAGES. benefit-of-the-bargain rule. (1913) 1. The principle that a party who breaches a contract must pay the aggrieved party an amount that puts that person in the same financial position that would have resulted if the contract had been fully performed. [Cases: Damages ~ 117.] 2. Ihe principle that a defrauded buyer may recover from the seller as damages the difference between the value of the property as represented and the actual value received. -Also termed benefit-of bargain rule. Cf. OUT-OF-POCKET RULE. [Cases: Fraud C:::>59(2).] benevolent association. See ASSOCIATION. benevolentia regis habenda (ben-<:l-v<:l-Ien-shee-<:l ree-jis h<:l-ben-d<:l). [Latin "the king's benevolence to be had"] Hist. A fine paid to receive the king's pardon and a res toration of place, title, or estate. benevolent society. See benevolent association under ASSOCIATION. Benthamism. See hedonistic utilitarianism under UTILI TARIANISM. Benthamite, adj. Of or relating to the utilitarian theory ofJeremy Bentham. See hedonistic utilitarianism under UTILITARIANISM. BEP. abbr. BUREAU OF ENGRAVING AND PRINTING. bequeath (b<:l-kweeth), vb. (12c) 1. To give property (usu. personal property) by will. [Cases: Wills ~ 1.]2. Hist. To assign or transfer real or personal property by formal declaration, either inter vivos or after death. bequeathal. See BEQCEST. bequest (b<:l-kwest), n. (I4c) 1. The act of giving property (usu. personal property) by will. [Cases: Wills ~ 1.J 2. Property (usu. personal property other than money) disposed of in a will. Also termed bequeathal (b<:l-kwee-th<:ll). Cf. DEVISE; LEGACY. charitable bequest. (18c) A bequest given to a philan thropic organization. See CHARITABLE ORGANIZA TION. [Cases: Charities conditional bequest. (18c) A bequest whose effective ness or continuation depends on the occurrence or nonoccurrence of a particular event. An example might be a testator's gift of "the income from the farm to my daughter, Betty, until she remarries." If a con dition prohibits certain legal conduct, such as using tobacco or growing a beard, it is sometimes termed a reformation condition or character-improvement COl1- dition. [Cases; Wills ~639-668.1 demonstrative bequest. (1905) A bequest that, by its terms, must be paid out of a specific source, such as a stock fund. [Cases: Wills ~755.] executory bequest. (18c) A bequest of a future, deferred, or contingent interest in personal property. [Cases: Wills (.~'625.1 Berlin Act general bequest. (I8c) 1. A bequest of a general benefit, rather than a particular asset, such as a gift of money or a gift of all the testator's stocks. 2. A bequest payable out of the general assets of the estate. [Cases: Wills monetary bequest. See pecuniary bequest. money bequest. See pecuniary bequest. pecuniary bequest. (I8c) A testamentary gift of money; a legacy. Also termed monetary bequest; money bequest. [Cases: Wills 567.] remainder bequest. See residuary bequest. residuqry bequest. (18c) A bequest of the remain der of the testator's estate, after the payment of the debts, legacies, and specific bequests. -Also termed remainder bequest. lCases: Wills C'=586.] specific bequest. (l8c) A bequest of a specific or unique item of property, such as any real estate or a particular piece of furniture. [Cases: Wills Berlin Act. Copyright. A 1908 revision of the Berne Con vention prohibiting formalities as a requirement for copyright protection, recommending (but not requir ing) a term of protection equal to the life of the author plus 50 years, and expanding the types of works eligible for copyright protection . Motion pictures were included in copyright protection for the first time. - Also termed Berlin Act of 1908; 1908 Berlin Act. Berne Additional Protocol. Copyright. A 1914 amend ment to the Berne Convention providing for reprisals against a foreign national who publishes simultane ously in both a member nation and the author's own nonmember and nonreciprocating country . The reprisal was aimed at the United States, which until 1989 refused to join the Berne Convention but whose citizens could enjoy Berne protection by first publish ing in a member nation. See BACK DOOR TO BERNE. Berne Convention. Copyright. An international copy right treaty providing that works created by citizens of one signatory nation will be fully protected in other signatory nations, without the need for local formal ities . The treaty was drafted in Berne in 1886 and revised in Berlin in 1908. It is now administered by the World Intellectual Property Organization and pre scribes minimum levels and terms of copyright protec tion. The United States ratified the Berne Convention in 1989 and changed several aspects of U.S. copyright law to comply with the treaty's terms. Also termed Berne Copyright Convention; Berne Convention for the Protec tion of Lite ra ry and Artistic Property. See CONGRESS OF AUTHORS AND ARTISTS. [Cases: Copyrights and Intel lectual Property G=::C34.] Berne Convention Implementation Act. Copyright.lhe 1988 federal law making the United States a signatory to the Berne Convention, 102 years after the convention was first opened for signatures . The law ended rigid formalities for registration and marking, although reg istration is still required before United States-copyright owners can sue for infringement. Pub. L. No. 100-568, 180 102 Stat. 2853. -Abbr. BCIA. [Cases: Copyrights and Intellectual Property Berne Copyright Convention. See BERNE CONVEN TION. Berne-minus, adj. Copyright. Of or relating to the second sentence of Art. 9(1) of the TRIPs Agreement, which provides that intellectual-property rights and duties under the Berne Convention will not be expressly enforced on noncomplying signators through the TRIPs Agreement. U.S. reluctance to expressly protect moral rights of authors and artists has been criticized as a "Berne-minus" attitude. Berne Paris Act. Copyright. A 1971 revision of the Berne Convention reducing the obligations of nations that became members as colonies of signatories. Also termed 1971 Paris Act of the Berne Convention. Berne-plus, adj. Copyright. Of or relating to a copyright treaty provision that affords greater intellectual-prop erty protection than the minimum required by the Berne Convention, either by granting stronger rights or by extending protection to new forms of subject matter. The term arose during negotiations over the TRIPs Agreement, reflecting the principle that the treaty should incorporate and build on existing international law. The WIPO treaties are said to be "Berne-plus" treaties because they incorporate Berne protections and add additional protections of their own. Berne Safeguard Clause. Copyright. A provision in the Universal Copyright Convention barring protection in Berne Union countries for the works of any country that withdraws from the Berne Union after January 1, 1951. The purpose of the clause was to prevent countries from withdrawing from the Berne Union in favor of the more relaxed copyright -protection stan dards of the Convention. The clause was amended in 1971 to give developing countries the right to opt out of its mandate. [Cases: Copyrights and Intellectual Property C:::>34.] Berne Union. Copyright. The treaty alliance of Berne Convention member nations. [Cases: Copyrights and Intellectual Property Berry rule. (1956) The doctrine that a defendant seeking a new trial on grounds of newly discovered evidence must show that (1) the evidence is newly discovered and was unknown to the defendant at the time of trial; (2) the evidence is material rather than merely cumulative or impeaching; (3) the evidence will probably produce an acquittal; and (4) the failure to learn of the evidence was not due to the defendant's lack of diligence. Berry v. State, 10 Ga. 511 (1851). [Cases: Criminal Law 938(1).] Bertillon system (bilr-t;l-lon or bair-tee-yawn). A system of anthropometry once used to identify criminals by measuring and describing them. _ The Bertillon system is named for Alphonse Bertillon, the French anthro pologist who developed the technique early in the 20th century. It has been largely replaced by fingerprinting. Cf. ANTHROPOMETRY. 181 "The system of identification known as the Bertillon system is worked out on the assumption that an individ ual's physical measurements are constant after maturity

identification known as the Bertillon system is worked out on the assumption that an individ ual's physical measurements are constant after maturity is attained. Such measurements include height, span of arms, sitting height, length of head, width of right ear, length of left foot, length of left middle finger, length of left little finger, and length of left forearm. The Bertillon system also records photographs (front and profile), hair and eye color, complexion, scars, tattoo marks and any asymmetrical anomalies." Encyclopedia of Criminology 81'82 (Vernon c. Branham & Samuel B. Kutash eds., 1949), s.v. "Criminalistics." bes (bes), n. [Latin] 1. Roman law. Two-thirds of the Roman as, or pound, consisting of eight unciae (ounces) out of twelve. See AS; UNCIA. 2. Civil law. Two-thirds of an inheritance. besayel (bes-aY-Jl). [Law French] Hist. L A writ of right used by a great -grandfather's heirs to recover property held by the great-grandfather. See assize of mort d'ancestor under ASSIZE (6). 2. A great-grandfather. Also spelled besaiel; besaile; bisaile; besayle. Cf. AIEL; COSINAGE. besluit (bi-sloyt), n. [Dutch "decision"] Roman-Dutch law. A legislative resolution or decree. bespeaks-caution doctrine. Securities. 'The principle that if soft information in a prospectus is accompanied by cautionary language that adequately warns investors that actual results or events may affect performance, then the soft information may not be materially mis leading to investors. -Soft information includes fore casts, estimates, opinions, and projections about future performance. The doctrine was codified in the Private Securities Litigation Reform Act of 1995. [Cases: Secu rities Regulation (;=60.27(5).] best bid. See BID (1). best edition. Copyright. A particular version of a copy righted work that is published in the U.S. before the date of deposit and that is designated by the Library of Congress, in its discretion, as the most suitable for its purposes. -Two copies of a copyrighted work, in the selected best-edition form, must be deposited with the Library. [Cases: Copyrights and Intellectual Property (;'-=>50.10.] best efforts. (17c) Diligent attempts to carry out an obli gation <the contractor must use best efforts to complete its work within the stated time>. -As a standard, a best-efforts obligation is stronger than a good-faith obligation. Best efforts are measured by the measures that a reasonable person in the same circumstances and of the same nature as the acting party would take. Also termed best endeavors. Cf. due diligence (l) under DILIGENCE; GOOD FAITH. [Cases: Contracts C=" 189.] best-efforts contract. See CONTRACT, best-efforts underwriting. See UNDERWRITING. best embodiment. See BEST MODE. best endeavors. See BEST EFFORTS. best evidence. See EVIDENCE. best-evidence rule. (1894) The evidentiary rule providing that, to prove the contents of a writing (or a recording best-interests-of-the-child doctrine or photograph), a party must produce the original writing (or a mechanical, electronic, or other familiar duplicate, such as a photocopy) unless it is unavailable, in which case secondary evidence -the testimony of the drafter or a person who read the document -may be admitted. Fed. R. Evid. 1001-1004. -Also termed documentary-originals rule; original-writing rule; origi nal-document rule. [Cases: Criminal Law (;= 398-403; Evidence C-~,) 157-187.] "Down to a century or more ago, the term 'best eVidence' was a good deal used; 'the best evidence that the nature of the thing will afford' was said to be required. But this loose expression never represented a concrete rule. The only positive and concrete rules of the kind are those above named. And today, though the cant phrase is sometimes invoked, and though an inference may be made against a party who fails to produce what might be better evidence, yet no court will in general exclude relevant evidence because there might be better evidence available," John H. Wigmore, A Students' Textbook of the Law of Evidence 219 (1935). bestiality (bes-chee-al-<l-tee). (l4c) Sexual activity between a human and an animaL -Some authorities restrict the term to copulation between a human and an animal of the opposite sex. See SODOMY. [Cases: Sodomy C=> 1.] best interests of creditors. Bankruptcy. A test for con firmation of a reorganization plan whereby the court inquires into whether the plan ensures that the value of property to be distributed to each creditor is at least the amount that the creditor would receive if the debtor's estate were liquidated in a Chapter 7 case. - A court may not confirm a plan in a Chapter 9, Chapter 12, or Chapter 13 case unless it is in the best interests of the creditors. In a Chapter 11 case, a court may confirm a plan even though some creditors do not vote to accept it if the court finds that the plan is in the creditors' best interest. 11 USCA 944(7), 1129(a)(7), 1225(a) (4), 1325(a)(4). Also written best interest of creditors. [Cases: Bankruptcy (;=3481, 3560,3682,3710(7).] best interests of the child. Family law. A standard by which a court determines what arrangements would be to a child's greatest benefit, often used in deciding child-custody and visitation matters and in deciding whether to approve an adoption or a guardianship. - A court may use many factors, including the emotional tie between the child and the parent or guardian, the ability of a parent or guardian to give the child love and gUidance, the ability of a parent or guardian to provide necessaries, the established living arrange ment between a parent or guardian and the child, the child's preference if the child is old enough that the court will consider that preference in making a custody award, and a parent's ability to foster a healthy rela tionship between the child and the other parent. - Abbr. BIC. Also termed best interest of the child. Cf. PARENTAL-PREFERENCE DOCTRINE. [Cases: Adoption Child Custody 178; Guardian and Ward (;= 10.] best-interests-of-the-child doctrine. Family law. The principle that courts should make custody decisions best mode based on whatever best advances the child's welfare, regardless of a claimant's particular status or relation ship with the child. _ One important factor entering into these decisions is the general belief that the child's best interests normally favor custody by parents, as opposed to grandparents or others less closely related. The doctrine is quite old, haVing been stated, for example, in the early 19th-century case of Com monwealth v. Briggs, 33 Mass. 203 (1834). -Some times shortened to best-interests doctrine; best-interest doctrine. See PARENTAL-PREFERENCE DOCTRINE. [Cases: Child Custody (;::::>76.] best mode. Patents. The best way that the inventor knows to work the invention described and claimed in a patent or patent application. - A patent application must disclose the best mode known to the inventor at the time of the filing. Failure to disclose the best mode can render a patent invalid. 35 USCA 112,' L Also termed best embodiment. Cf. ENABLEMENT REQUIRE MENT. [Cases: Patents C::::>'98.j best-mode requirement. Patents. 1he requirement that a patent application show the best phYSical method known to the inventor for using the invention. Cf. ENABLEMENT REQUIREMENT. [Cases: Patents C::::>98.] bestow, vb. (l4c) To convey as a gift <bestow an honor on another>. -bestowal, n. best use. See highest and best use under USE (1). bet, n. Something (esp. money) staked or pledged as a wager. [Cases: Gaming 1.] -bet, vb. -betting, n. bettor, n. layoff bet. A bet placed by a bookmaker to protect against excessive losses or to equalize the total amount placed on each side of the wager. See LAYOFF BETTOR. [Cases: Gaming C::::>62.] beta. A statistical measure of a security's risk, based on how widely a particular security's return swings as compared to the overall return in the market for that security. -The market's beta is set at 1.0; a security with a beta lower than 1.0 is less risky than the general market, while a security with a beta higher than 1.0 is more so. beta-test agreement. Intellectual property. A software license agreement, usu. between a software developer and a customer, permitting the customer to use the software program in a "live" environment before its release to the general public. -Beta-test agreements differ from more conventional software licenses in that they typically (1) have more significant limitations on liability; (2) contain few, if any, warranties; and (3) require user evaluation and feedback. -Also termed software beta-test agreement. [Cases: Copyrights and Intellectual Property C::::>, 107.] beta testing. Intellectual property. The process of testing products and services, esp. software, under real-life conditions. -Consumers often engage in beta testing at no cost in exchange for reporting to the developer how satisfied they are, any problems they encounter, and any suggested improvements. To protect a trade 182 secret or to avoid a statutory bar, the developer may require the user to sign a nondisclosure agreement. Cf. ALPHA TESTING. bet din. See BETH DIN. beth din. Family law. A rabbinical tribunal empowered by Jewish law to decide and enforce matters of Jewish law and custom; esp., a tribunal consisting of three rabbis who decide questions of Jewish law. -Also spelled bet din. See BETH TORAH. beth Torah. The judgment rendered by a panel of rabbis. See BETH DIN. betrothal. 1. Eccles. law. A religiOUS ceremony con firming an agreement to marry. _ Historically, a betrothal was performed months or years before the parties wedded. It was in theory as legally binding as a marriage and created an impediment to marriage with any other person, but not an insurmountable impedi ment. In modern form, the betrothal is usu. part of the marriage ceremony. -Also termed betrothment. See ENGAGEMENT (2). Cf. precontract under CONTRACT; ESPOUSALS. 2. Slang. A corporate merger agreement. betrothment. See BETROTHAL (1). betterment. (18c) l. An improvement that increases the value of real property; esp., an enhancement in the nature of an alteration or addition that goes beyond repair or restoration to a former condition. [Cases: Improvements C::::> 1.]2. An improvement of a highway, railroad, or building that goes beyond repair Of resto ration. 3. An increase in value, esp. real-estate value, attributable to improvements. See IMPROVEMENT. betterment act. (1819) A statute requiring a landowner to compensate an occupant who improves the land under a mistaken belief that the occupant is the real owner. _ The compensation usu. equals the increase in the land's value generated by the improvements. - Also termed occupying-claimant act; occupant statute. [Cases: Improvements CJ4.] betterment tax. A tax for the improvement of highways. betting. See PARIMUTUEL BETTING. beyond a reasonable doubt. See REASONABLE DOUBT. beyond seas. (16c) Hist. 1. (Of a person) being absent from a jurisdiction or nation; out of the country, esp. across the ocean. -This term was used when a person could not be served with a summons, notice, etc. because the person was absent from the jurisdiction. Some jurisdictions toll the statute oflimitations during a defendant's absence. 2. Out-of-state. _ Although originally beyond seas meant "out of the country," the U.S. Supreme Court declared that the term includes absence from a state. Murray's Lessee v. Baker, 16 U.S. 541, 545 (1818). -Also termed beyond sea; beyond the seas; ultra mare. "[lIt has been provided that if any person or persons against whom there shall be any cause of action shall at the time of its accrual be beyond seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons within such 183 time as before limited, after his or their return from beyond seas." John Indermaur, Principles of the Common Law 240 (Edmund H. Bennett ed., 1st Am. ed. 1878). b.f. abbr. BONUM FACTUM. BFOQ. abbr. BONA FIDE OCCUPATIONAL QUALIFICA- TION. BFP. See bona fide purchaser under PURCHASER (1). BHC. abbr. BANK HOLDING COMPANY. BIA. abbr. 1. BUREAU OF INDIAN AFFAIRS. 2. BOARD OF IMMIGRATION APPEALS. bias, n. (16c) Inclination; prejudice; predilection <the juror's bias prompted a challenge for cause>. -bias, vb. biased, adj. actual bias. Genuine prejudice that

prompted a challenge for cause>. -bias, vb. biased, adj. actual bias. Genuine prejudice that a judge, juror, witness, or other person has against some person or relevant subject. Cf. implied bias. advocate's bias. The bias that attorneys often develop in favor of a client involved in a dispute and that may potentially cause such missteps as overlooking certain arguments or misjudging the way facts or cases may appear to a dispassionate outsider. implied bias. Prejudice that is inferred from the expe riences or relationships of a judge, juror, witness, or other person. -Also termed presumed bias. Cf. actual bias. judicial bias. A judge's bias toward one or more of the parties to a case over which the judge presides . Judicial bias is usu. not enough to disqualify a judge from presiding over a case unless the judge's bias is personal or based on some extrajudicial reason. [Cases: Judges (;:::::'49.] BIC. abbr. BEST INTERESTS OF THE CHILD. bicameral, adj. (Of a legislature) having two legislative houses (usu. called the House of Representatives, or the Assembly, and the Senate) . The federal government and all states except Nebraska have bicamerallegisla- tures. [Cases: States C::)26.J bicameralism, n. Bicameral Clause. The constitutional provision that creates the two legislative chambers of Congress. See U.S. Const. art.!, 1. bid, n. (18c) 1. A buyer's offer to pay a specified price for something that mayor may not be for sale <a bid at an auction> <a takeover bid>. best bid. The highest auction bid; in the letting of a contract, the lowest bid by a qualified bidder. [Cases: Auctions and Auctioneers (;:::::'7.] bid in. A bid made by the owner of auctioned property to ensure that the property is not sold below actual value. [Cases: Auctions and Auctioneers bid off. To purchase by bid at auction or judicial sale. [Cases: Auctions and Auctioneers Judicial Sales (;:::::'19.] upset bid. A bid in a judicial sale made for more than the purchaser's bid so that the sale will be set aside (Le., upset). [Cases: Judicial Sales C:::> 19.J biens 2. A submitted price at which one will perform work or supply goods <the subcontractor's bid>. See BID- SHOPPING. bid, vb. -bidder, n. competitive bid. A bid submitted in response to public notice of an intended sale or purchase. firm bid. (1907) A bid that, by its terms, remains open and binding until accepted or rejected . A firm bid commonly contains no unusual conditions that might defeat acceptance. open bid. (1849) A bid that the bidder may alter after submission so as to meet competing bids. sealed bid. (1849) A bid that is not disclosed until all submitted bids are opened and considered simulta neously. bid and asked. Securities. A notation describing the range of prices quoted for securities in an over-the counter stock exchange . Bid denotes the highest price the buyer is willing to pay, and asked denotes the lowest price the seller will accept. See SPREAD (2). [Cases: Exchanges 13.] bid bond. See BOND (2). bidding up. (1823) The act or practice of raising the price for an auction item by making a series of progressively higher bids . Bidding up is unlawful if the bids are made collusively by persons with an interest in raising the bids. ct BY-BIDDING; SHILLING (1). [Cases: Auctions and Auctioneers (;:::::'7.] biderepe. See BEDRIP. bid in. See BID (1). bid off. See BID (1). bid peddling. See BID-SHOPPI)lG. bid price. See PRICE. bid quote. Securities. The price a broker will pay for a security or commodity. bid-shopping. (1964) A general contractor's effort after being awarded a contract to reduce its own costs by finding a subcontractor that will submit a lower bid than the one used in calculating the total contract price. If a lower bid is obtained, the general contractor will receive a windfall profit because the savings are usu. not passed on to the property owner. The subcontrac tor whose bid is used in the initial proposal can seek to avoid bid-shopping by insisting that it be irrevocably named in the contract as the project's subcontractor. bid wanted. Securities. A dealer's notation that bids are being sought from anyone on a security for sale . The notation appears in the pink sheets. -Abbr. BW. See PINK SHEET. biennial session. See SESSION (1). biennium (bI-en-ee-;3m). 1. A two-year period. 2. The period for which many state legislatures make appro priations. [Cases: States (;:::::' 131.] biens (beenz or byenz). [French] Hist. Goods; property. Biens includes real property in most civil-law juriS dictions. Cf. BONA. bifactoral obligation. See OBLIGATION. bifurcated divorce. See divisible divorce under DIVORCE. bifurcated trial. See TRIAL. bigamous (big-~-m~s), adj. 1. (Of a person) guilty of bigamy. 2. (Of a marriage) involving bigamy. bigamus (big-~-m~s), n. Hist. 1. One who commits bigamy; a bigamist. 2. A man who marries a widow, or who remarries. _ Under ecclesiastical law, a bigamus could be denied benefit of clergy. bigamy, n. (13c) 1. The act of marrying one person while legally married to another. -Bigamy is distinct from adultery: It is a criminal offense if it is committed know ingly. In 1878, the U.S. Supreme Court held that the government was not constitutionally prohibited from banning Mormon polygamy. Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878). [Cases: BigamyC=> 1; Marriage 2. Eccles. law. The act of marrying a widow or widower, or a divorced person . Somewhat surprisingly, sense 2 is valid even under modern ecclesiastical law, but it is not an offense, only a bar to entering holy orders. - Also termed sequential marriage. See DEUTEROGAMY. Cf. POLYGAMY; MONOGAMY; ADULTERY. -bigamist, n. big bath. Slang. A write-oil of significant costs, taken to shed an unprofitable business line or to remove the necessity for future write-offs. Big Board. 1. The New York Stock Exchange . This sense of Big Board may have derived from the former name of the NYSE -New York Stock and Exchange Board. 2. A quotation display showing the current prices of securi ties listed on the New York Stock Exchange. big pot. See MAIN POT. bilagines (bIlay-j~-neez). [Law Latin] Hist. Town bylaws; laws made by a town's inhabitants for their own gov ernment. bilan (bee-Iahn). [French "balance sheet"] Civil law. A book used by bankers and merchants to record all that they owe and all that is owed to them; a balance sheet. bilanciis deferendis (b~-lan-shee-is def-~r-en-dis). Hist. An obsolete writ ordering a corporation to carry weights to a given place to weigh wool licensed for transportation. bilateral, adj. (l8c) Affecting or obligating both parties <a bilateral contract>. bilateral act. See ACT. bilateral advance pricing agreement. See ADVANCE PRICING AGREEMENT. bilateral contract. See CONTRACT. bilateral mistake. See mutual mistake (1) under MISTAKE. bilateral monopoly. See MONOPOLY. bilboes (bil-bohz). Hist. 1. A device for punishment at sea consisting of a board with holes that secure an offender's hands and feet. Cf. STOCKS. 2. An iron bar with sliding shackles for confining the ankles of pris oners, esp. on shipboard. bill, n. (14c) 1. A formal written complaint, such as a court paper requesting some specific action for reasons alleged. 2. An equitable pleading by which a claimant brings a claim in a court of equity . Before the merger oflaw and equity, the bill in equity was analogous to a declaration in law. The nine parts of every equitable bill are (1) the address to the person holding the great seal, (2) the introduction, which identifies the parties, (3) the premises, which state the plaintiff's case, (4) the confed erating part, in which the defendants are charged with combination, (5) the charging part, in which the plain tiff may try to overcome defenses that the defendants may allege, (6) the jurisdictional clause, showing that the court has jurisdiction, (7) the interrogating part, inserted to try to compel a full and complete answer, (8) the prayer for relief, and (9) the prayer for process to compel the defendants to appear and answer. Also termed bill in equity. See DECLARATION (7). -Also termed bill in chancery; bill of chancery; bill of equity; bill for foreclosure. [Cases: Equity (';::::: 128-153.] "The statement of the plaintiff's cause of action in equity is called the bill. To this bill the defendant (unless he could protect himself by a demurrer or a plea) was obliged to put in an answer under oath." George Tucker Bispham, The Principles of Equity: A Treatise on the System of Justice Administered in Courts of Chancery 9, at 12 (11th ed. 1931). bill for a new trial. A bill in equity to enjOin a judgment and to obtain a new trial because of some fact that would render enforcement of the judgment inequi table . The fact must have been either unavailable or unknown to the party at trial through fraud or accident. Cf. MOTION FOR NEW TRIAL. [Cases: New Trial C=> 167.1 billfor redemption. See bill of redemption . bill in aid of execution. A bill filed by a judgment creditor to set aside a fraudulent encumbrance or COI1- veyance. [Cases: Fraudulent Conveyances bill in perpetuam rei memoriam. See bill to perpetu- ate testimony. bill in the nature of a bill of review. A post judgment bill of review filed by someone who was neither a party to the original suit nor bound by the decree sought to be reversed. Also termed supplemental bill in the nature of a bill of review. [Cases: Equity (>442.] bill in the nature of a bill of revivor. A bill filed when a litigant dies or becomes incapacitated before the liti gant's interest in property could be determined . 'The purpose of the bill is to resolve who holds the right to revive the original litigation in the deceased's stead. [Cases: Equity (::::::303.] bill in the nature of a supplemental bill. A bill bringing to court new parties and interests arising from events that occur after the suit is filed . A supplemental bill, in contrast, involves parties or interests already before the court. [Cases: Equity C:::>294.] bill in the nature of interpleader. A bill of interpleader filed by a person claiming an interest in interpleaded property. [Cases: Interpleader C:::>23.J 185 bill of certiorari. (18c) A bill in equity seeking removal of an action to a higher court. See CERTIORARI. [Cases: Certiorari ~42(.5).1 bill of complaint. An original bill that begins an action in a court of equity. See COMPLAINT (1). [Cases: Equity (.::::'128-153.] "A suit in equity, under the procedure of the English Court of Chancery, which was generally adopted in the American States prior to the code, is instituted by the plaintiff filing a bill of complaint. The plaintiff is usually called the com plainant, in the Federal courts the complainant or plain tiff indifferently. The bill is in substance a petition to the chancellor, or judge of the court of equity, setting forth at large the grounds of the suit, and praying the process of the court;its subpoena, to bring the defendant into court and compel him to answer the plaintiff's bill, and, also, for such relief by decree or interlocutory remedy, by way of injunction, etc., as the plaintiff supposes himself entitled to." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 55 (2d ed. 1899). bill of conformity. A bill filed by an executor or admin istrator who seeks the court's guidance in administer ing an estate. -The bill is usu. filed to adjust creditors' claims. bill of costs. (l6c) A certified, itemized statement of the amount of costs owed by one litigant to another, prepared so that the prevailing party may recover the costs from the losing party. Also termed cost bill. [Cases: Costs ~202; Federal Civil Procedure ~ 2742.1.] bill of discovery. (17c) A bill in equity seeking disclo sure of facts within the opposing party's knowledge. See DISCOVERY. [Cases: Equity C-=' 129.] bill of evidence. A transcript of testimony heard at trial. bill of exceptions. (l7c) 1. A formal

evidence. A transcript of testimony heard at trial. bill of exceptions. (l7c) 1. A formal written state ment -Signed by the trial judge and presented to the appellate court -of a party's objections or excep tions taken during trial and the grounds on which they are founded. -These bills have largely been replaced by straight appeals under the Federal Rules of Civil Procedure. See EXCEPTION (1). [Cases: Excep tions, Bill of~ 1.]2. In some jurisdictions, a record made to preserve error after the judge has excluded evidence. bill of foreclosure. A bill in equity filed by a lender to have mortgaged property sold to satisfy all or part of the secured, unpaid debt. [Cases: Mortgages ~ 444.] bill of interpleader. An original bill filed by a party against two or more persons who claim from that party the same debt or duty. -The requesting party asks the court to compel the contenders to litigate and establish their rights to the debt or the duty. See INTERPLEADER. [Cases: Interpleader C=23.] "The common law offered the stakeholder no relief, in that if he paid in good faith to one claimant, he might never theless be sued by and required to pay another claimant. And a judgment at law in favor of one claimant against the stakeholder was no defense to an action against the stakeholder by another claimant. However, in equity the bill or suit of interpleader offers him a remedy in that he bill may interplead (bring) into one action all of the claim ants, turn the money or property over to the court, be himself dismissed from the proceeding, and have the court deCide which of the claimants is entitled to the fund or property .... " William Q. de Funiak, Handbook of Modern Equ;ty 108, at 241-42 (2d ed. 1956). bill of peace. (18c) An equitable bill filed by one who is threatened with multiple suits involVing the same right, or with recurrent suits on the same right, asking the court to determine the question once and for all, and to enjoin the plaintiffs from proceeding with the threatened litigation. -One situation involves many persons having a common claim but threatening to bring separate suits; another involves one person bringing a second action on the same claim. [Cases: Equity ~51(1).1 "By a bill of peace we are to understand a bill brought by a person to establish and perpetuate a right which he claims, and which, from its nature, may be controverted by differ ent persons, at different times, and by different actions; or, where separate attempts have already been unsuccessfully made to overthrow the same right, and justice requires that the party should be quieted in the right, if it is already sufficiently established; or if it should be sufficiently estab lished under the direction of the court. The obvious design of such a bill is to procure repose from perpetual litigation, and therefore, it is justly called a bill of peace." Joseph Story, Commentaries on Equity jurisprudence 853, at 567 (W.E. Grigsby ed., 1st English ed. 1884). "If there was a dispute as to some right involving a mul tipliCity of persons (e.g., as to a man's right to take tolls, or to a right of way traversing many estates), a bill of peace could be brought in equity to establish the right and so secure repose from the prospect of incessant or multifarious litigation. Bills of peace have now in practice been superseded by modern procedural provisions for the joinder of parties and for representative actions." Robert E. Megarry & P.V. Baker, Snell's Principles of Equity 570 (27th ed. 1973). bill of privilege. Rist. The formal process for suing an attorney or officer of the court. "Attorneys and all other persons attending the courts of justice (for attorneys, being officers of the court, are always supposed to be there attending) are not liable to be arrested by the ordinary processes of the court, but must be sued by a bill, called usually a bill of privilege, as being personally present in court." William BlaCkstone, 3 Commentaries on the Laws of England 289 (1768). bill of redemption. A bill in equity filed to enforce a right to redeem real property, usu. following a mortgage foreclosure or a delinquent-tax sale. -Also termed bill for redemption. bill of review. (17c) A bill in equity requesting that a court reverse or revise a prior decree. [Cases: Equity (;:::=:c442.] bill of revivor. (17c) A bill filed for the purpose of reviving and continuing a suit in equity when the suit has been abated before final consummation. - 'Ibe most common cause of such an abatement is the death of either the plaintiff or the defendant. [Cases: Equity C=;> 303.] bill of revivor and supplement. A compound of a sup plemental bill and a bill of revivor, joined for con venience. -Its distinct parts must be framed and bill proceeded on separately. [Cases: Equity (::::::>294- 309.] bill quia timet. An equitable bill used to guard against possible or prospective injuries and to preserve the means by which existing rights are protected from future or contingent violations. _ It differs from an injunction, which corrects past and present -or imminent and certain -injuries. One example is a bill to perpetuate testimony. See QUIA TIMET. [Cases: Equity (::::::> 17.] bill to carry a decree into execution. A bill brought when a decree could not be enforced without further court order because of the parties' neglect or for some other reason. -Also termed bill to enJorce a decree. [Cases: Equity C:J438.] bill to perpetuate testimony. (l8c) An original bill to preserve the testimony of a material witness who may die or leave the jurisdiction before a suit is com menced, or to prevent or avoid future litigation. - Also termed bill in perpetuam rei memoriam. [Cases: Federal Civil Procedure c> 1293; Pretrial Procedure bill to suspend a decree. A bill brought to set aside a decree. [Cases: EquityC:~430.1 bill to take testimony de bene esse (dee or dJ bee-nee es-ee also day ben-ay es-ay). A bill brought to take tes timony pertinent to pending litigation from a witness who may be unavailable at the time of triaL [Cases: Federal Civil Procedure (::::::> 1293; Pretrial Procedure cost bill. See bill oj costs. cross-bill. A bill brought by the defendant against the plaintiff in the same suit, or against other defendants in the same suit, relating to the matters alleged in the original bilL [Cases: Equity (::::::> 195-206.] nonoriginal bill. A bill relating to some matter already litigated by the same parties. -It is an addition to or a continuation of an original bilL original bill. A bill relating to some matter that has never before been litigated by the same parties with the same interests. [Cases: Equity C=) 128-153.] skeleton bill oj exceptions. A bill of exceptions that, in addition to the formal parts, contains only the court's directions to the clerk to copy or insert necessary doc uments into the record for appellate review, but does not contain the actual evidence or trial-court rulings. -For example, the statement "the clerk will insert the official transcript here" is typically a skeleton bilL [Cases: Exceptions, Bill of C='23.] supplemental bill. A bill filed for the purpose of adding something to an original bilL -This addition usu. results from the discovery of new facts or from a new understanding of facts after the defendant has put on a defense. [Cases: Equity (::::::>294-301.] supplemental bill in the nature of a bill oj review. See bill in the nature oj a bill oj review. 186 3. A legislative proposal offered for debate before its enactment. [Cases: Statutes (::::::>1-23.] administration bill. A bill drafted and submitted by the executive branch. appropriations bill. (18c) A bill that authorizes gov ernmental expenditures. _ The federal government cannot spend money unless Congress has appropri ated the funds. u.s. Canst. art. I, 9, cl. 7. -Also termed spending bill. See APPROPRIATION (2), (3). [Cases: United States (::::::>85.] budget bill. A bill designating how money will be allo cated for the following fiscal year. dean bill. A bill that has been changed so much by a legislative committee that it is better to introduce a new bill (a "clean" one) than to explain the changes made. Also termed committee substitute. companion bill. A bill introduced in the other house of a bicameral legislature in a substantially identical form. deficiency bill. An appropriations bill covering expenses omitted from the general appropriations bills, or for which insufficient appropriations were made. -An urgent deficiency bill covers immediate expenses usu. for one item, and a general deficiency bill covers a variety of items. engrossed bill. (ISc) 1. A bill in a form ready for final passage by a legislative chamber. 2. A bill in the form passed by one house of the legislature. See ENGROSS (3); ENGROSSMENT (2). "An engrossment is a proofreading and verification in order to be certain that the bill before the house is identical with the original bill as introduced with all amendments that have been adopted correctly inserted." National Confer ence of State Legislatures, Mason's Manual of Legislative Procedure 735-2, at 525 (2000). enrolled bill. (l8c) A bill passed by both houses of the legislature and signed by their presiding officers. See E:-.IROLL (2); ENROLLED-BILL RULE. [Cases: Statutes (::::::>37.] house bill. (often cap.) (1871) A legislative bill being considered by a house of representatives. -Abbr. H; H.B. money bill. See revenue bill. must-pass bill. Legislation of vital importance, such as an appropriation without which the government will shut down. - A must-pass bill will often attract unrelated riders. See RIDER. omnibus bill. (1840) 1. A Single bill containing various distinct matters, usu. drafted in this way to force the executive either to accept all the unrelated minor provisions or to veto the major provision. 2. A bill that deals with all proposals relating to a particular subject, such as an "omnibus judgeship bill" covering all proposals for new judgeships or an "omnibus crime bill" dealing with different subjects such as new crimes and grants to states for crime control. 187 pre filed bill. A bill that has been drafted and submitted before a legislative session begins. private bill. A bill relating to a matter of personal or local interest only. Cf. special law under LAW. "A private Bill is a measure for the interest of some person or class of persons, whether an individual, a corporation, or the inhabitants of a county, town, parish, or other locality, and originates on the motion of some member of the [leg' islature] in which the Bill is introduced." Courtenay P. libert, Legislative Methods and Forms 28 (1901). public bill. (ISc) A bill relating to public policy in the whole community. revenue bill. (ISc) A bill that levies or raises taxes . Federal revenue bills must originate in the House of Representatives. U.S. Const. art. I, 7, d. 1. -Also termed money bill. senate bill. (often cap.) (1S57) A legislative bill being considered by a senate. -Abbr. S.B. spending bill. See appropriations bill. 4. An enacted statute <the GI Bill>. 5. An itemized list of charges; an invoice <hospital bill>. See FEE STATE MENT. bill of parcels. 1. A seller's itemized list of goods and prices. intended to assist a buyer in detecting any mistakes or omissions in a shipment of goods. 2. INVOICE. bill payable. See account payable under ACCOUNT. bill receivable. See account receivable under ACCOUNT. bill rendered. See account rendered under ACCOUNT. 6. A bill of exchange; a draft <the bank would not honor the unsigned bill>. See DRAFT (1). [Cases: Bills and Notes P 1.) advance bill. A bill of exchange drawn before the shipment of the goods. banker's bill. See finance bill. blank bill. A bill with the payee's name left blank. Cf. DRAFT (1). domestic bill. 1. A bill of exchange that is payable in the state or country where it is drawn. [Cases: Bills and Notes 128.] 2. A bill on which both the drawer and drawee reside within the same state or country. - Also termed (in sense 2) inland bill of exchange. Cf. foreign bill. [Cases: Bills and NotesP13.] finance bill. A bill of exchange drawn by a bank in one country on a bank in another country to raise short term credit. Finance bills are often issued in tight money periods, and usu. have maturity dates of more than 60 days. Also termed banker's bill; working capital acceptance. foreign bill. A bill of exchange drawn in one state or country and payable in another. Cf. domestic bill. [Cases: Bills and Notes P 13, 128. J inland bill of exchange. See domestic bill (2). investment bill. A bill

13, 128. J inland bill of exchange. See domestic bill (2). investment bill. A bill of exchange purchased at a discount and intended to be held to maturity as an investment. bill broker 7. A formal document or note; an instrument <bill of sale>. "The expression 'bill of sale' includes bills of sale, assign ments. transfers, declarations of trust without transfer, inventories of goods with receipts thereto attached, or receipts for purchase-monies of goods, and other assur ances of personal chattels, and also powers of attorney, authorities, or licences to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred .... " Joshua Williams, Principles of the Law of Personal Property 60 (11th ed. 1881) (tracking the definition in the [U.K.] Bills of Sale Act of 1878). "A transfer may be either an absolute assignment by way of gift or sale, or an assignment by way of mortgage or security only; but in either case when a written document of any sort is used to effect the transfer, the document is called technically a 'bill of sale.''' Arthur Weldon & H. Gibson Rivington, Gibson's Conveyancing 302 (14th ed. 1933). bill obligatory. A written promise to pay; a promissory note under seal. -Also termed single bond. See NOTE (1). [Cases: Bills and Notes (;:::::>41.] bill of debt. A debt instrument, such as a bill obligatory or promissory note. [Cases: Bills and Notes P2S.] bill of lading. See BILL OF LADING. bill penal. A written promise to pay that carries a penalty in excess of the underlying debt for failure to pay. Cf. bill single. bill single. A written promise to pay that is not under seal and has no penalty for failure to pay. Also termed Single bill. Cf. bill penal. grand bill of sale. 1. Hist. An instrument used to transfer title to a ship that is at sea. 2. An instrument used to transfer title of a ship from the builder to the first purchaser. single bill. See bill single. skeleton bill. A bill drawn, indorsed, or accepted in blank. 8. A piece of paper money <a $10 bill>. 9. A promissory note <the debtor Signed a bill for $7,000>. [Cases: Bills and Notes (;:::::>28.) billable hour. (196S) A unit of time used by an attorney, law clerk, or paralegal to account for work performed and chargeable to adient. Billable hours are usu. divided into quarters or tenths of an hour. [Cases: Attorney and Client C:> 140.] billable time. (1966) An attorney's, law clerk's, or para legal's time that is chargeable to a client. Cf. NONBILL ABLE TIME. [Cases: Attorney and Client P 140.J billa cassetur (bil-a kd-see-tar). See CASSETUR BILLA. billa excambii (bil-a eks-kam-bee-l). [Latin] See BILL OF EXCHANGE. billa exonerationis (bit-a ig-zon-a-ray-shee-oh-nis). [LatinJ See BILL OF LADING. billa vera (bil-d veer-d). [Latin) See TRUE BILL. bill broker. A middleman who negotiates the purchase or sale of commercial paper. Bill Chamber. Hist. Scots law. A division of the Court of Session in which some remedies could be granted. -The Lord Ordinary on the Bills presided over the court. It was abolished in 1933 and merged into the Court of Session. billeta (bil-;:J-t;:J). Rist. A proposed statute or petition pre sented in Parliament. billhead. A printed invoice containing a business's name and address. bill in aid of execution. See BILL (2). bill in equity. See BILL (2). billing cy~le. The period between billings for goods sold or services rendered. bill in perpetuam rei memoriam. See bill to perpetuate testimony under BILL (2). bill number. The number assigned to a proposed piece of legislation, typically designating the house in which it was introduced (S for senate or HR for house of repre sentatives) followed by a sequential number. bill of adventure. Maritime law. A shipper's written statement that the shipped property belongs to another and is conveyed at the owner's risk. bill of attainder. (l7c) 1. Archaic. A special legislative act that imposes a death sentence on a person without a trial. 2. A special legislative act prescribing punish ment, without a trial, for a specific person or group. _ Bills of attainder are prohibited by the U.S. Constitu tion (art.!' 9, c1. 3; art. I, 10, cl. 1). Also termed act of attainder. See ATTAINDER; BILL OF PAINS AND PENALTIES. [Cases: Constitutional Law ~ 1095.] bill of credit. 1. Legal tender in the form of paper, issued by a state and involving the faith of the state, designed to circulate as money in the ordinary uses ofbusiness. U.S. Const. art. I, 10. [Cases: States (;::::::-145.] 2. LETTER OF CREDIT. bill of debt. See BILL (7). bill of entry. Maritime law. A written description of goods filed by an importer with customs officials to obtain permission to unload a ship's goods. bill of exchange. See DRAFT (1). bill of health. Maritime law. A statement certifying the healthy condition of a ship's cargo and crew. -The bill is issued by the port authority from which a vessel sails and is shown to the port authority at the ship's destination as proof that the ship's cargo and crew are disease-free. A "clean" bill states that no conta gious or infectious diseases were present at the port; a "touched" or "foul" bill states that the named disease was suspected, anticipated, or actually present. [Cases: Shipping bill of indemnity. 1. Hist. An act of Parliament passed annually to protect officeholders who unwittingly fail to take a required oath from liability for acts done in an official capacity. - A more general statute, the Promis sory Oaths Act, replaced the bill of indemnity in 1868. 2. A law protecting a public official from liability for official acts. [Cases: Officers and Public Employees 114.] 3. An initial pleading by which a plaintiff seeks to require another (often an insurance company) to dis charge the plaintiff's liability to a third person. bill of indictment. (16c) An instrument presented to a grand jury and used by the jury to declare whether there is enough evidence to formally charge the accused with a crime. See INDICTMENT; NO BILL; TRUE BILL. bill of information. 1. INFORMATION. 2. Rist. A civil suit begun by the Crown or by those under its protection, such as a charity. bill of interpleader. See BILL (2). bill oflading (layd-ing). (l6c) A document acknowledg ing the receipt of goods by a carrier or by the shipper's agent and the contract for the transportation of those goods; a document that indicates the receipt of goods for shipment and that is issued by a person engaged in the business of transporting or forwarding goods. UCC 1-201(6). - A negotiable bill oflading is a document of title. -Abbr. B/L. -Cf. WAYBILL; AIRBILL. [Cases: Carriers Shipping C:=', 106.] "A bill of lading may be regarded in three several aspects. (l) It is a receipt given by the master of a ship acknowledg ing that the goods specified in the bill have been put on board; (2) it is the document [that] contains the terms ofthe contract for the carriage of the goods agreed upon between the shipper of the goods and the shipowner (whose agent the master of the ship is); and (3) it is a 'document of title' to the goods, of which it is the symbol. It is by means of this document of title that the goods themselves may be dealt with by the owner of them while they are still on board ship and upon the high seas." William R. Anson, Principles of the Law of Contract 380 (Arthur L. Corbin ed . 3d Am. ed. 1919). bearer bill of lading. A negotiable bill oflading that authorizes the carrier or holder of freight to deliver it to the bearer. claused bill of lading. See unclean bill o.flading. clean bill of lading. A bill oflading containing no clause or notation qualifying the bill's terms. -Possible clauses or notations could include a provision for deck storage or a recording of cargo damage. Cf. unclean bill of lading. [Cases: Carriers ~52(2).1 destination bill of lading. A bill procured to be issued at the destination point or any other place than the place of shipment. UCC 7-305. [Cases: ShippingC:::, 106(3).] foul bill of lading. See unclean bill of lading. long-form bill of lading. A bill oflading that expressly contains all the terms of the transportation contract. Cf. short-form bill of lading. negotiable bill of lading. A bill oflading calling for the delivery of goods to the bearer or to a named person's order. UCC 7-104. [Cases: Carriers ~54; Shipping ~106(5).1 nonnegotiable bill of lading. See straight bill of lading. 189 ocean bill of lading. A negotiable bill oflading used in shipment by water. -Often shortened to ocean bill. [Cases: Shipping (:::::c 106.J onboard bill of lading. A bill oflading reflecting that goods have been loaded onto a ship . In multimodal shipments, an on board bill of lading may include goods loaded onto land vehicles also. Often short ened to onboard bill. order bill of lading. A negotiable bill oflading stating that the goods are consigned to the order of the person named in the bilL [Cases: Carriers 054.J overseas bill of lading. A bill oflading used for overseas shipment by water or air. UCC 2-323 . In air freight, an overseas bill of lading is called an air waybill. Often shortened to overseas bill. [Cases: Shipping C=~ 106(1).J short-form bill of lading. A bill of lading that does not expressly contain all the terms of the transporta tion contract, but incorporates them by reference to another document, usu. one at the office of the carrier. [Cases: Shipping (:::::c 140.J spent bill of lading. A negotiable bill of lading that is not produced, canceled, or surrendered after the carrier has delivered the goods. -Often shortened to spent bill. straight bill of lading. A nonnegotiable bill of lading that specifies a consignee to whom the carrier is con tractually obligated to deliver the goods . In some countries, including England, a document is not a bill oflading unless it is negotiable. -Also termed non negotiable bill of lading. [Cases: Carriers <)::;;51.] through bill of lading. A bill oflading by which a carrier agrees to transport goods to a designated destination, even though the carrier will have to use a connecting carrier for part of the passage. UCC 7-302. Often shortened to through bill. [Cases: Carriers (;::::051.J unclean bill of lading. A bill oflading that shows on its face that the goods were damaged or that there was a shortage of goods at the time of shipment. -Also termed claused bill oflading;foul bill of lading. Cf. clean bill of lading. bill of Middlesex. Hist. A process by which the Court of the King's Bench in Middlesex obtains jurisdiction over a defendant who resides in a county outside the Court's jurisdiction, by alleging a fictitious trespass in a county over which the court has jurisdiction . Once the sheriff returns the bill noting that the defendant is not in the county where the trespass occurred, a latitat is issued to the sheriff of the defendant's actual resi dence. See LATITAT. "The bill of Middlesex is a kind of capias, directed to the sheriff of that county, and commanding him to take the defendant, and have him before our lord the king at West minster on a day prefixed, to answer to the plaintiff of a plea of trespass. For this accusation of trespass it is, that gives the court of king's bench jurisdiction in other civil causes, as was formerly observed; since when once the defendant is taken into custody ... , he, being then a prISoner of this court, may here be prosecuted for any bill of sight other species of injury." 3 William Blackstone, Commentar ies on the Laws of England 285 (1768). bill of mortality. Hist. A record of the number of deaths occurring in a given district. Bills of mortality were compiled -often week to week in England from late in the 16th century to the 19th century as a way to keep track of the plague and other highly contagious diseases. bill of pains and penalties. (ISc) A legislative act that, though similar to a bill of attainder, prescribes pun ishment less severe than capital punishment. Bills of pains and penalties are included within

attainder, prescribes pun ishment less severe than capital punishment. Bills of pains and penalties are included within the U.S. Con stitution's ban on bills of attainder. U.S. Const. art I, 9. [Cases: Constitutional Law C=> 1095.] bill of parcels. See BILL (5). bill of particulars. (1831) A formal, detailed statement of the claims or charges brought by a plaintiff or a pros ecutor, usu. filed in response to the defendant's request for a more specific complaint . The bill of particulars has been abolished in federal civil actions and replaced by the motion for a more definite statement. See Fed. R. Civ. P. 12(e). But it is still used in some states (such as California) and in federal criminal cases. See Fed. R. Crim. P. 7(f). Also termed statement of particulars. See MOTION FOR MORE DEFINITE STATEMENT. [Cases: Federal Civil Procedure 0943; Indictment and Infor mation (;:::::) 121; Pleading 0:;;313.J "Although it has been said that the bill of particulars is not a discovery device, it seems plain that it is a means of discovery, though of a limited nature. It is the one method open to a defendant in a criminal case to secure the details ofthe charge against him." 1 Charles Alan Wright, Federal Practice and Procedure 129. at 646-47 (3d ed. 1999). bill of peace. See BILL (2). bill of privilege. See BILL (2). bill of redemption. See BILL (2). bill of review. See BIl.L (2). bill of revivor. See BILL (2). bill of revivor and supplement. See BILL (2). bill of rights. (lSe) 1. (usu. cap.) A section or addendum, usu. in a constitution, defining the situations in which a politically organized society will permit free, spon taneous, and individual activity, and guaranteeing that governmental powers will not be used in certain ways; esp., the first ten amendments to the U.S. Constitu tion. [Cases: Constitutional Law C:::o 1067.]2. (cap.) One of the four great charters of English liberty (1 W. & M. (1689)), embodying in statutory form all the prin ciples of the other three charters, namely, Magna Carta, the Petition of Right (3 Car. I, 1628), and the Habeas Corpus Act (31 Car. 2,1679). bill of sale. (16c) An instrument for conveying title to personal property, absolutely or by way of security. Cf. DEED. [Cases: Sales 141, bill of sight. Maritime law. A declaration made to a customs officer by an importer who is unsure about bill of store what is being shipped . The bill of sight allows an importer to inspect the goods before paying duties. bill of store. Hist. A license authorizing a merchant to carry necessary stores and provisions free of duty. bill of sufferance. Hist. A license authorizing a merchant to trade between English ports without paying customs duties. bill payable. See account payable under ACCOUNT. bill penal. See BILL (7). bill quia timet. See BILL (2). bill receivable. See account receivable under ACCOUNT. bill rendered. See account rendered under ACCOUNT. bills and notes. 1. See PAPER (1). 2. See PAPER (2). bills in a set. A bill oflading made up of a series ofinde pendent parts, each bearing a number and providing that goods delivered against anyone part voids the other parts . Traditionally, in overseas-goods ship ments, the parts of this type of bill were sent under separate cover so that if one was lost, the buyer could take delivery of the goods with another one. UCC 7-304. bill single. See BILL (7). bill status. The current state of a proposed law in the leg islative process, such as its assignment to a committee, its schedule for a hearing or a vote, and its passage or defeat by one or both houses. bill taken pro confesso (proh bn-fes-oh). [Latin "as if admitted"] Hist. An order issued by a court of equity when a defendant fails to file an answer. bill to carry a decree into execution. See BILL (2). bill to enforce a decree. See bill to carry a decree into execution under BILL (2). bill to perpetuate testimony. See BILL (2). bill to suspend a decree. See BILL (2). bill to take testimony de bene esse. See BILL (2). bimetallism. A monetary system in which currency is defined in terms of two metals (usu. gold and silver), both being legal tender and with a fixed rate of exchange between them . The American money system was based on a bimetallic standard from 1792 to 1873. bind, vb. (I5c) 1. To impose one or more legal duties on (a person or institution) <the contract binds the parties> <courts are bound by precedent>. 2. Hist. To indenture; to legally obligate to serve. binding, adj. -bind ingness, n. bind day. See BOON DAY. binder. 1. A document in which the buyer and the seller of real property declare their common intention to bring about a transfer of ownership, usu. accompa nied by the buyer's initial payment. 2. Loosely, the buyer's initial payment in the sale of real property. Cf. EARNEST MONEY. 3. An insurer's memorandum giving the insured temporary coverage while the application for an insurance policy is being processed or while the 190 formal policy is being prepared. [Cases: Insurance (;::-.:> 1748.] Also termed binding receipt; binding slip. binding, adj. (14c) 1. (Of an agreement) having legal force <a binding contract>. 2. (Of an order) requiring obedience <the temporary injunction was binding on the parties>. binding agreement. See AGREEMENT. binding arbitration. See ARBITRATION. binding authority. 1. See binding precedent under PREC EDENT. 2. See imperative authority under AUTHORITY. binding instruction. See mandatory instruction under JURY INSTRUCTION. binding precedent. See PRECEDENT. binding receipt. See BINDER. binding slip. See BINDER. bind over, vb. (16c) 1. To put (a person) under a bond or other legal obligation to do something, esp. to appear in court. 2. To hold (a person) for trial; to turn (a defen dant) over to a sheriff or warden for imprisonment pending further judicial action . A court may bind over a defendant if it finds at a preliminary examination that there is enough evidence to require a trial on the charges against the defendant. [Cases: Criminal Law C=:>240.] -binding over, n. bindover, a~i. bindover hearing. See PRELIMINARY HEARING. biochemical warfare. See WARFARE. biological, adj. 1. Of or relating to biology or life <bio logical study>. 2. Genetically related <biological parents>. biological child. See natural child (1) under CHILD. biological father. See FATHER. biological material. Patents. Patentable microorgan isms -such as bacteria, fungi, algae, protozoa, and viruses that are capable of self-replication . To satisfy the Patent Act's enablement requirement, bio logical material that is the subject of a U.S. patent application must be depOSited in an appropriate cell depository before the patent is granted. biological mother. See MOTHER. biological parent. See PARENT. biological terrorism. See bioterrorism under TERROR ISM. biological warfare. See WARFARE. biotechnology. Patents. A branch of molecular biology dealing with the use of biological processes to produce useful medical and industrial materials. Cf. GENETIC ENGINEERING. Biotechnology Patent Process Protection Act. Patents. A 1995 federal statute that made biotechnological processes per se patentable if either the process or the resulting material is novel and nonobvious. 35 USCA 103(b). Also termed Biotechnology Act. bioterrorism. See TERRORISM. 191 bipartite, adj. (l6c) (Of an instrument) executed in two parts by both parties. bird-dog fee. Slang. 1. Money paid by a business to a person who directs consumers to the business. 2. An illegal payment to a person who arranges a business deal; KICKBACK. BIRPI. See INTERNATIONAL BUREAU FOR THE PROTEC TION OF INTELLECTUAL PROPERTY. birretum (b~-ret-~m). [Law Latin] A cap or coif formerly worn by British judges and serjeants-at-law. birth. The complete emergence of a newborn baby from the mothet:'s body . The quotation below states the traditional legal view of birth. In a few jurisdictions, the state of the law may be changing. In South Carolina, for example, a child does not have to be born alive to be a victim of murder; a woman can be convicted of fetal murder ifher baby is stillborn because of the mother's prenatal drug abuse. "For purposes of criminal law and also for those of property law, e.g. to become a holder of property and so transmit it again to new heirs, or to enable the father to obtain curtesy of his wife's lands birth consists in extrusion from the mother's body, i.e. in having 'come into the world.' If but a foot be unextricated, there can be no murder, the extrusion must be complete, the whole body of the infant must have been brought into the world. But it is not necessary that the umbilical cord should have been severed. And to be born alive the child must have been still in a living state after having wholly quitted the body of the mother." j.W. Cecil Turner, Kenny's Outlines of Criminal Law 104 (l6th ed. 1952). birth certificate. A formal document that records a person's birthdate, birthplace, and parentage . In all 50 states, an adopted child receives a second birth certificate reflecting his or her adoptive parents. In such a case, the original birth certificate is usu. sealed and can be opened only by court order. Some states allow limited access, depending on the year when an adoptee was born and (sometimes) on whether the birth parents consent. The trend today is to open records if (1) both the child and the biological parent consent - for example, through an adoption registry, or (2) the child requests and, upon notification, the biological parent does not veto the request. Oregon enacted the first statute to permit access to birth records upon the unilateral demand of the adopted child, once the child reaches the age of majority. See ADOPTION-REGISTRY STATuTE.lCases: Health (:::::>397.] birth control. 1. Any means of preventing concep tion and pregnancy, usu. by mechanical or chemical means, but also by abstaining from intercourse. 2. More narrowly, contraception. [Cases: Abortion and Birth Control (:::::> 132.] birthday club. See GIFTING CLUB. birth father. See biological father under FATHER. birth injury. Harm that occurs to a fetus during the birth process, esp. during labor and delivery. Cf. PRENATAL INJURY. birth mother. See MOTHER. Black Act birth parent. See PARENT. birth records. (1854) Statistical data kept by a govern mental entity concerning people's birthdates, birth places, and parentage. [Cases: Health (;=>397.] BIS. abbr. BUREAU OF INDUSTRY AND SECURITY. bi-scot. Hist. English law. A fine imposed for not repair ing banks, ditches, and causeways. bishop. The chief superintendent and highest-ranking member of the clergy within a diocese . The bishop is subject to the archbishop of a province. [Cases: Reli gious Societies "[AJ bishop ... has several courts under him, and may visit at pleasure every part of his diocese. His chancellor is appointed to hold his courts for him, and to assist him in matters of ecclesiastical law .... " 1 William Blackstone, Commentaries on the Laws of England 370 (1765). bishopric (bish-a-prik). l. DIOCESE. 2. The office of a bishop. bishop's court. l. An ecclesiastical court usu. held in the diocese cathedral and presided over by the bishop's chancellor. 2. Hist. Eccles. law. (cap.) A court (usu.) held in the cathedral of a diocese, the judge being the bishop's chancellor, who applied civil canon law . The jurisdiction included appeals from the Court of Archdeacon. In a large diocese, the bishop's chancel lor would have commissaries in remote parts who held conSistory courts. See CONSISTORY COURT. biting rule. A rule of construction that once a deed or will grants a fee simple, a later provision attempting to cut down, modify, or qualify the grant will be held void. [Cases: Deeds (:::::> 124; Wills (:::::>601(2).] Bivens action. (1972) A lawsuit brought to redress a federal official's violation of a constitutional right. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). A Bivens action allows federal officials to be sued in a manner similar to that set forth at 42 USCA 1983 for state officials who violate a person's

a manner similar to that set forth at 42 USCA 1983 for state officials who violate a person's constitutional rights under color of state law. [Cases: United States ('':;:;50.1.] .biz. Trademarks. A top-level domain name assigned by ICANN for use by businesses as distinct from indi vidual, personal, or noncommercial use. See DOMAIN NAME; INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS. B/L. abbr. BILL OF LADING. Blackacre. (I7c) A fictitious tract ofland used in legal dis course (esp. law-school hypotheticals) to discuss real property issues . When another tract of land is needed in a hypothetical, it is often termed Whiteacre." "Blackacre is the most celebrated tract of land in the world of the law, ... Blackacre is wholly mythical, yet totally real. It is a concept, living in the realm of the mind and doubly valuable since much of the law of property has the same type of reality." John E. Cribbet, p,.inciples of the Law of Property 2 (2d ed. 1975). Black Act. Hist. An English statute (9 Geo. ch. 22) estab lishing the death penalty for the unlawful killing or maiming of animals . The statute was passed in 1722 in the wake of crimes committed by persons with faces blackened or otherwise disguised. The statute was repealed in 1827. The classic study of this law is E.P. Thompson, Whips and Hunters: The Origins of the Black Act (1975). Black Acts. Scots law. Statutes of the Scottish Parlia ment passed from 1535 to 1594 and recorded in a book printed in black letter. Black Book of the Admiralty. English law. A medieval code of maritime law containing admiralty laws, ordi nances, and proceedings, decisions, and acts of the monarch, the Lord High Admiral, and the Court of Admiralty . The Black Book is considered a defini tive source for customary English maritime law. It also contains a copy of the Rules of Ole ron, an 11th-century compilation of common maritime law. Black Book of the Exchequer. Hist. A record book con taining treaties, conventions, charters, papal bulls, and other English state documents . It dates from the l3th century. -Also termed Liber Niger Parvus. black cap. A square cap worn by English judges on certain state or solemn occasions . The black cap was formerly worn by judges when handing down a death sentence. black codes. (usu. cap.) Hist. 1. Antebellum state laws enacted to regulate slavery. 2. Laws enacted shortly after the Civil War in the ex-Confederate states to restrict the liberties of the newly freed slaves to ensure a supply of inexpensive agricultural labor and to maintain white supremacy. "Clearly, leaders of the old South who survived the war were in no mood for racial equality. It was a bitter enough pill that the slaves were legally free; there was no inclination to go beyond the formal status. The Black Codes of 1865, passed in almost all of the states of the old Confederacy, were meant to replace slavery with some kind of caste system and to preserve as much as possi ble of the prewar way of life." Lawrence M. Friedman, A History of American Law 504 (2d ed. 1985). black economy. See SHADOW ECONOMY. Black Hand. Hist. Any of several secret societies that were active in the late 19th and early 20th centuries . Most of these organizations were composed of anar chists or separatists and engaged in terrorism. In the late 19th and early 20th centuries, a loosely knit Sicilian-Italian criminal organization called the Black Hand extorted money from Italian immigrants to the U.S. through threats and acts of violence. Chapters of the organization were established throughout the United States and Canada. The New York City Police Department created the nation's first bomb squad to deal with the bombs used by the Black Hand. A band of Spanish anarchists in the late 19th century and a group of Serbian anarchists in the early 20th century were also called the Black Hand. The organizations were not related. -blackhander, n. black-leg labor. See SCAB. blackletter law. (18c) One or more legal principles that are old, fundamental, and well settled . The term refers to the law printed in books set in Gothic type, which is very bold and black. -Also termed hornbook law. blacklist, vb. (I8c) To put the name of (a person) on a list of those who are to be boycotted or punished <the firm blacklisted the former employee>. blacklist, n. black-lung disease. See PNEUMOCONIOSIS. blackmail, n. (I6c) 1. A threatening demand made without justification; EXTORTION. Cf. FEEMAIL; GRAYMAIL; GREENMAIL (1), (2). [Cases: Extortion and Threats <>25.1.1 blackmail, vb. "[Blackmail isl a certain rate of Money, Corn, Cattle, or other conSideration, paid to some inhabiting upon, or near the borders, being persons of name and power, allied with ... known Robbers ... to be thereby by them freed and pro tected from the danger of those SpOil-takers." Thomas Blount, Noma-Lexicon: A Law-Dictionary (1670). '''Black-mail' (black rent) was anciently used to indicate 'rents reserved in work, grain or baser money' (i.e. baser than silver). It was also employed at one time to refer to 'a tribute formerly exacted in the north of England and in Scotland by freebooting chiefs for protection from pillage.' [Quoting American College Dictionary(1948).1 Such practice was extortion, in the literal sense, and hence 'blackmail' is frequently used to indicate statutory extortion or some times an extorsive threat. And the federal statute forbid ding the sending of an extorsive threat by mail has been referred to as the 'blackmail statute.'" Rollin M. Perkins & Ronald N. Boyce, Criminal Law451 (3d ed. 1982). 2. BLACK RENT. blackmail suit. See SUIT. black maria. Slang. A locked van used by the police to transport prisoners to and from jaiL black market. 1. See MARKET. 2. See SHADOW ECONOMY. black-market adoption. 1. See ADOPTION. 2. See SHADOW ECONOMY. blackout period. Trademarks. The time between the examining attorney's approval of an intent-to-use application for publication in the Official Gazette and the issuance of a notice of allowance after publication, during which the applicant may not file a statement of use or make any other substantive amendment to the application. [Cases: Trademarks <> 1284, 1287.] black-rage insanity defense. See INSANITY DEFENSE. black rent. Hist. Peudal rents paid in work, grain, or money baser than silver. -Also termed blackmail. Cf. WHITE RENT. Black-Scholes formula. A mathematical model used to estimate the present value of stock options or warrants based on the exercise price, the length of the option's or warrant's exercise period, and the fair market value and volatility of the underlying security . The term derives from Escher Black and Myron Scholes, the names of the economists who presented the formula in The Pricing of Options and Corporate Liabilities, 81 J. PoL Econ. 637 (1973). Blackstone lawyer. Slang. 1. A lawyer with a broad knowledge of black letter principles. 2. A self-educated 193 lawyer (esp. in antebellum America) whose legal training consists primarily of reading Blackstone's Commentaries. black ward. Hist. A subvassal; a vassal of the king's vassal. Blaine amendment. A provision in a state constitu tion for stricter separation of church and state than is required by the Establishment Clause . In 1875, at the request of President Ulysses S. Grant, Senator James G. Blaine proposed an amendment to the U.S. Consti tution, applying the Free Exercise and Establishment Clause to the states, and specifically prohibiting the use of any state' funds to support any religiOUS institutions, including private church-run schools (esp. Roman Catholic). The House of Representatives passed the amendment, but the Senate narrowly voted against it. Many states, however, amended their constitutions to include a "Blaine Amendment" strictly prohibiting the use of public money for the support of religious institu tions. [Cases: Constitutional Law C:::) 1334.] blame, n. 1. An act of attributing fault; an expression of disapproval <the judge said that all the plaintiff's attorneys were to blame>. 2. Responsibility for some thing wrong <blame rested with all the defendants>. blame, vb. -blameworthy, blamable, adj. blanc seign (blahnk sayn). [Law French] Civil law. A Signed paper entrusted to someone with the power to bind the signer within the limits of the agreement between the signer and the grantee. See POWER OF ATTORNEY (1). blank. Parliamentary law. 1. A ballot cast without a vote, effectively an abstention. 2. A name, number, time, or other term left open in a motion, to be filled in by vote after taking proposals from the floor . An election is a common form of filling a blank: each nomina tion is effectively a proposal for filling the blank in the question, "Resolved, That is elected." See CREATE A BLANK; FILL A BLANK. blank acceptance. See ACCEPTANCE (4). blank bar. Hist. A plea in bar interposed by a defendant in a trespass action. -This type of plea was filed to compel the plaintiff to state exactly where the alleged trespass occurred. -Also termed common bar. blank bilL See BILL (6). blank bond. See BOND (2). blank check. See CHECK. blank consent. A general authorization from a natural parent who voluntarily relinquishes a child for private adoption and allows adoption proceedings without further consent. -Jurisdictions are divided over whether a blank consent is valid if the natural parents do not identify and approve the prospective adoptive parents. -Also termed blanket consent; general consent. [Cases: Adoption 7.5.] blanket agreement. Labor law. A collective-bargaining agreement that applies to workers throughout an orga-blended fund nization, industry, or geographical area. [Cases: Labor and Employment (;=:; 1288.] blanket bond. See BOND (2). blanket contract. See CONTRACT. blanket license. See LICENSE. blanket lien. See LIEN. blanket mortgage. See MORTGAGE. blanket order. 1. A judicial order that covers a broad subject or class. Also termed umbrella order. See ORDER (2). 2. See blanket protective order under PRO TECTIVE ORDER. 3. An order negotiated by a customer with a supplier for multiple purchases and deliveries of specified goods over a stated period, as an alternative to placing a separate order for each transaction. -Also termed blanket purchase agreement; blanket purchase order. See PURCHASE AGREEMENT; PURCHASE ORDER. [Cases: Records blanket policy. See INSURANCE POLICY. blanket protective order. See PROTECTIVE ORDER. blanket purchase agreement. See BLANKET ORDER (3). blanket purchase order. See BLANKET ORDER (3). blanket search warrant. See SEARCH WARRANT. blank form. Copyright. A form, usu. one for record keeping and business purposes, that does not convey information until it has been filled in . Blank forms are not eligible for copyright protection. Also termed business form. See BLANK-FORMS RULE. [Cases: Copy rights and Intellectual Property G'=' 10.4.] blank-forms rule. Copyright. TIle principle that forms are not protectable by copyright if they are deSigned for recording information but do not themselves convey any information. _ The rule, first promulgated by the U.S. Supreme Court in Baker v. Selden, 101 U.S. 99 (1880), is now a U.S. Copyright Office regulation, 37 CFR 202.1(c). See MERGER DOCTRINE (1). [Cases: Copyrights and Intellectual Property 10.4.] blank indorsement. See INDORSEMENT. blank stock. See STOCK. blasphemy (blas-f;:l-mee), n. (13c) Irreverence toward God, religion, a religious icon, or something else con sidered sacred . Blasphemy was a crime at common law and remains so in some U.S. jurisdictions, but it is rarely if ever enforced because of its questionable con stitutionality under the First Amendment. Cf. PROFAN ITy. [Cases: Criminal Law (.'='45.20.] -blaspheme (blas-feem or blas-feem), vb. -blasphemous (blas-fd m;:ls), adj. blasphemer (bias-fcc-mJr), n. "Blasphemy is the malicious revilement of God and religion. In England blasphemy was the malicious revilement of the Christian religion .... Blasphemy has been held to be a commonlaw crime [in the United States] because of its tendency to stir up breaches of the peace. It is expressly made punishable by some of the statutes." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 474,475 (3d ed. 1982). blended family. See FAMILY. blended fund. See FUND (1). blended sentence. See SENTENCE. blended trust. See TR

blended fund. See FUND (1). blended sentence. See SENTENCE. blended trust. See TRUST. blending clause. (1947) A provision in a will disposing of both the testator's own property and the property over which the testator has a power of appointment, so that the two types of property are treated as a unit. [Cases: Wills ~589.] blind bidding. Copyright. In the licensing of movies for first-run engagements, the practice by film distributors of requiring theater owners to bid for and book movies without haVing seen them . By statute, some states prohibit blind bidding. l Cases: Antitrust and Trade Regulation blind entry. See ENTRY (2). blind pig. See BLIND TIGER. blind plea. See PLEA (1). blind selling. (I946) The sale of goods without giving a buyer the opportunity to examine them. blind tiger. Slang. A place where intoxicants are illegally sold . This term was commonly used during Prohibi tion. Also termed blind pig. See PROHIBITION (3). blind trust. See TRUST. bloc. (I903) A group of persons or political units aligned with a common interest or purpose, even if only tem porarily <voting bloc>. block, n. (18c) 1. A municipal area enclosed by streets <three blocks away>. See LOT (1). 2. A quantity of things bought or sold as a unit <a block of preferred shares>. 3. SQUARE (1). blockade. Int'llaw. A belligerent's prevention of access to or egress from an enemy's ports by stationing ships to intercept vessels trying to enter or leave those ports. To be binding, a blockade must be effective that is, it must be maintained by a force sufficient to prevent access to ports. Also termed simple blockade; de facto blockade. [Cases: War and National Emergency~ 19.] "A blockade must be existing in point of fact; and in order to constitute that existence. there must be a power present to enforce it. All decrees and orders, declaring extensive coasts and whole countries in a state of blockade. without the presence of an adequate naval force to support it, are manifestly illegal and void, and have no sanction in public law." 1 James Kent, Commentaries on American Law *144 (George Comstock ed., 11th ed. 1866). "The word blockade properly denotes obstructing the passage into or from a place on either element, but is more especially applied to naval forces preventing com munication by water. Unlike siege it implies no intention to get possession of the blockaded place. With blockades by land or ordinary Sieges neutrals have usually little to do," Theodore D. Woolsey, Introduction to the Study of IntemQ tional Law 202, at 351 (5th ed. 1878). pacific blockade. Int'llaw. A blockade that is estab lished without a declaration of war. public blockade. Int'llaw. An established blockade of which the blockading nation gives formal notice to the governments of neutral nations. [Cases: War and National Emergency C:::c~ 19(2).1 blockage rule. Tax. The principle that a large block of stock shares may be valued at less than the total value of the individual shares because such a large block may be difficult to sell at full price. [Cases: Internal Revenue (;:::'4534; Taxation ~3531.] block booking. n. Copyright. In the licensing or use of movies, the practice by film distributors of condition ing the license or use on the acceptance of an entire package or block of films, which typically includes unwanted or inferior films . In United States v. Loew's Inc., 371 U.S. 38, 83 S.Ct. 97 (1962), the U.S. Supreme Court condemned block booking as an illegal tying arrangement that violates the Sherman Act. [Cases: Antitrust and Trade Regulation Blockburger test. Crimina/law. A test, for double-jeop ardy purposes, of whether a defendant can be punished separately for convictions on two charges or prosecuted later on a different charge after being convicted or acquitted on a charge involving the same incident; a comparison of two charges to see if each contains at least one element that the other does not. Although the test is frequently called the same-evidence test, that term is misleading since the analysis involves the elements of the charged offenses rather than the facts of the incident. Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 192 (1932). -Also termed same-elements test; actual-evidence test. Cf. SAME-CONDUCT TEST; SAME-TRANSACTION TEST. [Cases: Double Jeopardy 135,136.] blockbusting. (1954) The act or practice, usu. by a real estate broker, of persuading one or more property owners to sell their property quickly, and often at a loss, to avoid an imminent influx of minority groups. Blockbusting is illegal in many states. l Cases: Brokers C=' 1,4; Civil Rights ~ 1076.] blocked account. See ACCOlJNT. blocked currency. See CURRENCY. blocked income. See INCOME. block grant. An unrestricted grant of federal funds. [Cases: United States blocking patent. See PATENT (3). block interest. See add-on interest under INTEREST (3). block policy. See INSURANCE POLICY. block voting. A shareholders' agreement to cast their votes in a single block. See voting trust under TRUST. Blonder-Tongue doctrine. Patents. The rule that a patentee is barred by collateral estoppel from relitigat ing the validity of a patent that has been held invalid in an earlier proceeding in which the patentee had a full and fair opportunity to litigate the patent's validity . The rule was adopted by the U.S. Supreme Court in Blonder-Tongue Laboratory, Inc. v. University of Illinois, 402 U.S. 313, 91 S.Ct. 1434 (1971). -Also termed Blonder-Tongue rule. [Cases: Patents ~327(l3).1 blood. (Be) A relationship between persons arising by descent from a common ancestor. See RELATIVE. entire blood. See full blood. full blood. (1812) The relationship existing between persons having the same two parents; unmixed ancestry. Also termed whole blood; entire blood. half blood. (l7c) The relationship existing between persons having the same father or mother, but not both parents in common. -Sometimes written half blood. See relative of the half blood under RELATIVE. [Cases: Descent and Distribution heritable blood. Hist. A relationship between an ancestor and an heir that the law recognizes for purposes of passing good title to property. Also termed j'nheritable blood. [Cases: Descent and Dis tribution mixed blood. (1817) Archaic. The relationship between persons whose ancestors are of different races or nationalities. "The term 'mixed bloods,' as used in treaties and statutes, has been held to include persons of half. or more or less than half, Indian blood. derived either from the father or from the mother." 42 C.J,5. Indians 3 (1991). whole blood. See full blood. blood, corruption of the. See CORRUPTlO:-r OF BLOOD. blood alcohol content. (1926) The concentration of alcohol in one's bloodstream, expressed as a percentage. -Blood alcohol content is used to determine whether a person is legally intoxicated, esp. under a driving while-intoxicated law. In many states, a blood alcohol content of .08% is enough to charge a person with an offense. Abbr. BAC. -Also termed blood alcohol count; blood alcohol concentration. See DRIVI:'llG UNDER THE DRIVING WHILE INTOXICATED. [Cases: Automobiles 411.] blood border. Slang. The dividing line between adjoin ing states that have different minimum drinking ages. _ The term derives from the fact that juveniles from the state with the higher minimum age drive to the state with a lower minimum age, purchase and consume alcohol, and drive home intoxicated. blood diamond. See CONFLICT DIAMOND. blood feud. See FEUD (4). blood-grouping test. (1930) A test used in paternity and illegitimacy cases to determine whether a particular man could be the father of a child, examples being the genetic-marker test and the human-leukocyte antigen test. _ The test does not establish paternity; rather, it eliminates men who could not be the father. See PATER NITY TEST; GENETIC-MARKER TEST; HUMAN-LEUKO CYTE ANTIGEN TEST. [Cases; Children Out-of-Wedlock blood money.!. Hist. A payment given by a murderer's family to the next of kin of the murder victim. Also termed wer. 2. A reward given for the apprehension of a person charged with a crime, esp. capital murder. blood relative. See RELATIVE. blood test. The medical analysis of blood, esp. to estab lish paternity or (as required in some states) to test for sexually transmitted diseases in marriage-license appli cants. See SEROLOGICAL TEST. Children Out-of Wedlock ~45, 58; Marriage bloodwite. Hist. I. EFFUSIO SANGUINIS (1). 2. EFFUSIO SANGUINIS (2). 3. The right to levy a fine involving the shedding of blood. 4. The exemption from the payment of a fine involving the shedding of blood. 5. Scots law. A penalty for a brawl or riot in which blood is shed. blotter. I. See ARREST RECORD. 2. See WASTE BOOK. BLS. abbr. BUREAU OF LABOR STATISTICS. blue-blue-ribbon jury. See blue-ribbon jury under JURY. Blue Book. 1. A compilation of session laws. See SESSION LAWS (2). 2. A volume formerly published to give parallel citation tables for a volume in the National Reporter System. 3. English law. A government publi cation, such as a Royal Commission report, issued in a blue paper cover. Bluebook. The citation guide formerly titled A Uniform System of Citation that is generally considered the authoritative reference for American legal citations. - The book's complete title is The Bluebook: A Uniform System of Citation. Although it has been commonly called the Bluebook for decades, the editors officially included Bluebook in the title only in the mid-1990s. The book is compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and The Yale Law Journal. Cf. ALWD CITATION MANUAL. bluebook, vb. To ensure the conformity of citations with The Bluebook: A Uniform System of Citation. blue books. See SESSION LAWS. blne chip, n. A corporate stock that is considered a safe investment because the corporation has a history of stability, consistent growth, and reliable earnings. - The term is said to come from poker, in which the blue chips usu. have the highest value. Also termed blue chip stock. -blne-chip, adj. blue law. (1762) A statute regulating or prohibiting com mercial activity on Sundays. -Although blue laws were formerly common, they have declined since the 19805, when many courts held them invalid because of their origin in religion (Le., Sunday being the Christian Sabbath). Blue laws usu. pass constitutional challenge if they are enacted to support a nonreligiOUS purpose, such as a day of rest for workers. Also termed Sunday law; Sunday-closing law; Sabbath law; Lord's Day Act. [Cases: Sunday<'>~3-30(8).] Blne List. Securities. A daily listing (on blue paper) of secondary-market offerings of municipal bonds. "Municipal bonds available for resale in the secondary market are listed by state in The Blue List. along with such information as the number of bonds offered. issuer, maturity date. coupon rate, price, and dealer making the offering. Ratings are not included. But there are sections on settlement dates of recent new offerings. prerefunded bonds, and miscellaneous offerings (some u.s. government and agency obligations, railroad equipment trust certifi cates. corporate bonds, and even preferred stocks). The blue note dollar value of listings, referred to as the floating supply, gives an indication of the size and liquidity of the second ary municipal market." The New York Institute of Finance, How the Bond Market Works 185 (1988). blue note. See NOTE (1). blue-pendl test. (1921) A judicial standard for deciding whether to invalidate the whole contract or only the offending words . Under this standard, only the offending words are invalidated if it would be possible to delete them simply by running a blue pencil through them, as opposed to changing, adding, or rearranging words. [Cases: Contracts C=> 137.] blue-ribbon jury. See JURY. blue-sky, vb. (1931) To approve (the sale of securities) in accordance with blue-sky laws <the company's IPO has not yet been blue-skyed>. blue-sky, adj. (1906) (Of a security) having little value. The term was first used in reference to the assets at issue in Lowell v. People, BIll!. App. 137 (1907) ("hot air and blue sky"). blue-sky law. (1912) A state statute establishing stan dards for offering and selling securities, the purpose being to protect citizens from investing in fraudulent schemes or unsuitable companies . Such a stat

ities, the purpose being to protect citizens from investing in fraudulent schemes or unsuitable companies . Such a statute typi cally includes provisions for licensing brokers, register ing securities, and formal approvals of the offerings by the appropriate government agencies. [Cases: Securities Regulation C:::>248-273.J "Although the public is probably more aware of the exis tence and operation of the several federal statutes admin istered by the Securities and Exchange Commission, most state legislation in this area is broader in scope. State securities laws, commonly referred to as 'blue sky' laws, were enacted long before the Securities Act of 1933, and Congress specifically preserved these laws instead of attempting to preempt the field for federal legislation." Louis Loss & Edward M. Cowett, Blue Sky Law 3 (1958). "The first legislative attempts to regulate securities trans actions were effected on the state level, with the first general securities law being said to have been enacted by the State of Kansas in 1911, and with 48 jurisdictions having enacted such statutes by 1933. These statutes were said to be enacted to stop the sale of stock in fly-by-night concerns, visionary oil wells, distant gold mines, and other fraudulent exploitations. A similar description of the early legislative purpose is that such acts were aimed at 'specula tive schemes which have no more basis than so many feet of blue sky,' and this description has had a lasting influence in that state securities acts are commonly referred to as 'blue sky laws,'" 69A Am. Jur. 2d Securities Regulation - State 1 (1993). "The state legislatures entered the arena of securities regu lation more than twenty years before Congress .... [T] he statutes, which vary widely in their terms and scope, are commonly referred to as 'blue sky' laws. an appella tion with several suggested origins. It has been said, for example, that the Kansas legislature was spurred by the fear of fast-talking eastern industrialists selling everything including the blue sky." 1 Thomas Lee Hazen, Treatise on the Law of Securities Regulation 8.1, at 490-92 (3d ed. 1995). bluewater seaman. See able-bodied seaman under SEAMAN. 196 blurring, n. Trademarks. A form of dilution in which goodwill in a famous mark is eroded through the mark's unauthorized use by others on or in connec tion with dissimilar products or services . Blurring is one type of dilution that is actionable under the Federal Trademark Dilution Act, 15 USCA 1125(c). <The court found that Nabisco's use of a fish shape in its animal crackers diluted Pepperidge Farm's famous Goldfish trademark.> -Also termed dilution by blurring; dim inution. Cf. TARNISHMENT. [Cases: Trademarks 1462.] "Blurring is a lessening of the fame possessed by a famous mark. One might begin to think about blurring by recalling 'free association' exercises or games, in which one player says a word and the other player must respond instantly with the first word that pops into his or her head, By definition, a strong or famous mark is likely to produce both a prompt and a uniform 'free association' response when mentioned to most consumers. Thus when I say ROLEX, you-and almost everyone else-will likely say 'watches.' ... On the other hand, a weak mark will produce no response at all, or a variety of responses from different consumers .... If the owners of the ROLEX mark had no way to prevent the use of that mark on pencils, or pianos, or pistachio nuts. because those products are so remote from watches that they could not prove any likelihood of confusion, eventually, the automatic free association of the ROLEX mark with watches, and watches alone, would be destroyed. The mark would be less famous than before. It would be blurred." Roger E. Schechter & John R. Thomas, Intellectual Property 30.3. at 710-11 (2003). BMI. abbr. BROADCAST MUSIC, INC. board. 1. A group of persons having managerial, super visory, or advisory powers <board of directors> . In parliamentary law, a board is a form of deliberative assembly and is distinct from a committee -which is usu. subordinate to a board or other deliberative assembly -in haVing greater autonomy and author ity. 2. Daily meals furnished to a guest at an inn, board inghouse, or other lodging <room and board>. [Cases: Contracts 3. BOARD OF DIRECTORS. board-certified, adj. (1938) (Of a professional) recog nized by an official body as a specialist in a given field oflaw or medicine <board -certified in civil litigation>. See BOARD OF LEGAL SPECIALIZATION. board lot. See round lot under LOT (3). board of adjustment. See ADJUSTMENT BOARD. board of aldermen. See CITY COUNCIL. Board of Appeals. Patents & Trademarks. Hist. A quasi judicial body within the U.S. Patent and Trademark Office that was empowered to hear appeals by appli cants whose patent applications had been wholly or partially rejected by patent examiners. -Its work is now done by the Board of Patent Appeals and Inter ferences. See BOARD OF PATENT APPEALS A.:--ID INTER FERENCES. board of directors. (18c) 1. The governing body of a corporation, elected by the shareholders to establish corporate policy, appoint executive officers, and make major business and financial decisions. -Also termed (esp. in charitable organizations) board of trustees. See DIRECTOR. [Cases: Corporations C=>297.] 2. The 197 governing body of a corporation, partnership, associa tion, or other organization, elected by the shareholders or members to establish policy, elect or appoint officers and committees, and make other governing deci sions. -Often shortened (informally) to board. -Also termed board of governors; board of managers; board of trustees (esp. in charitable and educational organiza tions); executive board. See DIRECTOR. staggered board of directors. A board of directors whose members' terms of service overlap so that only part of the board's makeup is voted on in any single election. _ Typically, members serve terms of two or more -years, with some members' terms expiring at each annual election. See Del. Code Ann. tit. 8, 141 (1991) (authorizing classified boards with two or three classes having two-or three-year terms). Also termed classified board of directors. [Cases: Corpora tions (;:= 291.] board of education. A state or local agency that governs and manages public schools within a state or local district. Cf. SCHOOL BOARD. [Cases: Schools board of equalization. See EQUALIZATION BOARD. board of examiners. See EXAMINING BOARD. board of fire underwriters. Insurance. An unincorpo rated voluntary association made up of fire insurers. [Cases: Insurance <8:;:) 1218.] board of governors. 1. See BOARD OF DIRECTORS. 2. (cap.) FEDERAL RESERVE BOARD OF GOVERNORS. Board of Green Cloth. Hist. A group of persons respon sible for governing the royal-household staff, esp. in financial matters such as accounting for expenses and paying servants' wages. -lhe Board consisted of the Lord Steward and inferior officers, and its name derived from the green cloth that covered the table used by the Board to conduct its duties. In more ancient times, it kept the peace and maintained courts of justice within the area around the royal household (Le., the verge). Also termed Counting House of the King's Household; Green Cloth. board of health. A municipal or state agency rn<lr<'PI1 with protecting the public health. [Cases: Health 361.] Board ofImmigration Appeals. The highest administra tive tribunal for interpreting and applying United States immigration law, esp. reviewing appeals from adverse decisions of immigration judges and district directors of the Department of Homeland Security . The Board may have up to 15 permanent members appointed by the Attorney General. Abbr. BIA. -Also termed Immigration Appeals Board. [Cases: Aliens, Immigra- tion, and Citizenship 577.] board oflegal specialization. (l969) A body, usu. an arm of a state bar association, that certifies qualified lawyers as specialists within a given field. -Typically, to qualify as a specialist, a lawyer must meet a specified level of experience, pass an examination, and provide favor-board of zoning appeals able recommendations from peers. [Cases: Attorney and Client board of managers. See BOARD OF DIRECTORS. Board of Medical Examiners. See EXAMINING BOARD. board of pardons. (1872) A state agency, of which the governor is usu. a member, authorized to pardon persons convicted of crimes. lCases: Pardon and Parole (;:='55.1.] board of parole. See PAROLE BOARD. Board of Patent Appeals and Interferences. Patents & Trademarks. The quasi-judicial body in the U.S. Patent and Trademark Office that hears (1) appeals from patent applicants whose claims have been rejected by a patent examiner, and (2) interference contests between two or more applicants trying to patent the same invention. - This tribunal assumed the work previously handled by the Board of Appeals and the Board of Patent Interfer ences. The U.S. Court of Appeals for the Federal Circuit hears appeals from this tribunaL See INTERFERENCE (3). [Cases: Patents board of police commissioners. An administrative tribunal vested with diSciplinary powers over law enforcement personnel. [Cases: Municipal Corpora tions C~ 181.] board of regents. A group of persons appointed to super vise an educational institution, esp. a university. [Cases: Colleges and Universities board of registration. A state agency authorized to license and discipline members of a trade or profes- sion. [Cases: Licenses 38.] board of review. 1. A bodv that reviews administrative agency decisions. [Cases~ Administrative Law and Pro cedure (;:::>513.] 2. A body that reviews property-tax assessments. [Cases: Taxation (;::J2653-2682.] 3. In some cities, a board that reviews allegations of police misconduct. [Cases: Municipal Corporations 185(12).] Board of Tax Appeals. See TAX COURT, U.s. board oftrade. 1. A federation of business executives dedicated to advancing and protecting business inter ests. 2. An organization that runs a commodities exchange. See CHICAGO BOARD OF TRADE. [Cases: Commodity Futures Trading Regulation G=~6.] 3. Hist. The Lords of the Committee of the Privy Council that had jurisdiction over trade and foreign plantations. - Today, the responsibilities once assigned to this com mittee are carried out by the Ministry for Trade and Industry. board of trustees. See BOARD OF DIRECTORS. Board of Veterans' Appeals. The agency in the U.S. Department of Veterans' Appeals responsible for reviewing decisions on entitlements to veterans' benefits. _ The Board's decisions are subject to review by the U.S. Court of Appeals for Veterans Claims. - Abbr. BVA. [Cases: Armed Services (;:=135,154.] board of zoning appeals. See ADJUSTMENT BOARD. boatable, adj. See NAVIGABLE. boatable water. See NAVIGABLE WATER (1). boc (bok), n. Hist. A written document, esp. one that conveys land. -Also spelled bock. bockland. See BOOKLAND. bocland. See BOOKLAND. bodily harm. See HARM. bodily heir. See heir of the body under HEIR. bodily injury. See INJURY. body. (15c) l. The main part of a written instrument, such as the central part of a statute (after the title and preamble) or the middle part of a complainant's bill in equity. 2. A collection oflaws. -Also termed body of laws. See CORPUS JURIS. 3. An artificial person created by a legal authority. See CORPORATION. 4. An aggregate of individuals or groups. See BODY POLITIC. 5. A delib erative assembly <legislative body>. See deliberative assembly under ASSEMBLY. 6. An aggregate of individu als or groups <student body>. 7. BODY OF A CLAIM. body corporate. See CORPORATION. body execution. l. See CAPIAS. 2. See EXECUTION. body of a claim. Patents. The portion of a patent claim that defines the elements or steps of the invention . The body of the claim follows the preamble and tran sition phrase. In a combination claim, the body of a claim sets forth the elements of a patentable combina tion. Cf. PREAMBLE (2); TRANSITION PHRASE. [Cases: Patents C=> 101(1).] body of a county. A county as a whole. body oflaws. See BODY (2). body politic. (ISc) A group of people regarded in a politi cal (rather than private) sense and organized under a common governmental authority. body-snatching, n. The unlawful removal of a corpse, esp. from a grave. -body-snatcher, n. bogus (boh-g;ls), adj. Not genuine; counterfeit; SPURIOUS (1). Cf. GENUINE. bogus check. See bad

; counterfeit; SPURIOUS (1). Cf. GENUINE. bogus check. See bad check under CHECK. bogus will. See WILL. boilerplate, n. (1893) l. Ready-made or all-purpose language that will fit in a variety of documents . Orig inally, the term may have denoted a steel plate affixed to a boiler. But the modern sense comes from copy and artwork etched on metal plates (or molds made from a master plate) and distributed to newspapers and printers. The copy could not be edited. 2. Fixed or standardized contractual language that the proposing party often views as relatively nonnegotiable. [Cases: Contracts 1.] -boilerplate, adj. boiler-room transaction. (1988) Slang. A high-pressure telephone sales pitch, often of a fraudulent nature. Cf. PHISHING; TELESCAM. Bolger test. The judicial test for determining whether a statement is commercial speech, by examining (1) whether it is an advertisement; (2) whether it refers to a specific product or service; and (3) whether the speaker has an economic motivation for making the statement. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,66-67, 103 S.Ct. 2875, 2879-80 (1983) . An affirma tive answer to all three questions is "strong support" that the speech is commercial, but it is not dispositive; rather, the decision should be based on common sense. [Cases: Constitutional LawC=>1536.] bolster, vb. To enhance (unimpeached evidence) with additional evidence . This practice is often considered improper when lawyers seek to enhance the credibility of their own witnesses. [Cases: Witnesses C=>318.] bolts. Hist. Student-argued cases in the Inns of Court. These practice cases were held privately, in contrast to the more formal and public moots. -Also termed boltings. bombardment. Int'llaw. An attack from land, sea, or air with weapons that are capable of destroying enemy targets at a distance with bombs, missiles, or projec tiles. bona (boh-n;l), n. [Latin "goods"] Chattels; personal property. Cf. BIENS. bona adventitia (boh-n;l ad-ven-tish-ee-;l). [Latin] 1. Roman law. Goods acquired by free persons in some way other than through their paterfamilias, or by slaves in a way other than through their owner. 2. Civil law. Goods acquired fortuitously, but not by inheritance. -Also spelled bona adventicia. -Also termed adventitia bona. bona confiscata (boh-n;l kon-fi-skay-t;l). Goods con fiscated by -or forfeited to -the Crown. bonafelonum (boh-n;l f;l-loh-n;lm). Personal property belonging to a convicted felon. bona forisfacta (boh-n;l for-is-fak-t;l). Forfeited goods. bona fugitivorum (boh-m fyoo-j;l-ti-vor-;lm). Goods belonging to a fugitive. -Also termed bona utlaga torum. bona immobilia (boh-n;l i-moh-bil-ee-;l). Immovable property. bona mobilia (boh-n;l moh-bil-ee-;l). [Latin] Movable property. See MOVABLE. bona notabilia (boh-n;l noh-t;l-bil-ee-;l). Notable goods; property worth accounting for in a decedent's estate. [Cases: Executors and Administrators C=> 11, 12.] bona paraphernalia (boh-n;l par-;l-f;lr-nay-Iee-;l). Clothes, jewelry, and ornaments not included in a married woman's dowry. bona peritura (boh-n;l per-;l-t[y]uur-;l). Perishable goods; goods that an executor or trustee must dili gently convert into money. bona utlagatorum (boh-n;l ;It-Iay-g;l-tor-;lm). See bona fugitivorum. 199 bona vacantia (boh-nd vd-kan-shee-<l). [Latin "vacant goods"] 1. Property not disposed of by a decedent's will and to which no relative is entitled under intes tacy laws. See ESCHEAT. 2. Ownerless property; goods without an owner. -Bona vacantia often resulted when a deceased person died without an heir willing and able to make a claim. The property either belonged to the finder or escheated to the Crown. - Sometimes shortened to vacantia. Also termed vacantia bona. bona waviata (boh-nd way-vee-ay-td). Stolen goods thrown away in flight by a thief . The goods escheated to the Crown as a penalty to the owner for failing to pursue the thief and recover the goods. vacantia bona. See bona vacantia. bona activa (boh-n<l ak-tI-vd). [Latin "active goods"] 1. Assets. See ASSET (1). 2. The claims that a person has against others. Cf. BONA PASSIVA. bona castrensia et quasi castrensia (boh-nd ka-stren shee-<l et kway-sI [or kway-zI] ka-stren-shee-<l). [Latin "goods acquired for military or quaSi-military (i.e., public) service"] Roman law. The property that a son could dispose of, by testament or otherwise, without his paterfamilias's consent. See PATERFAMILIAS. bona confiscata. See BONA. bonae fidei (boh-nee fl-dee-I). [Latin] Of good faith; in good faith. bonae fidei possessor (boh-nee fI -dee-I pd-zes-dr). [Latin] Roman law. A good-faith possessor of property owned by another. _ Unless the owner sued to recover the property, the possessor became the rightful owner after a specified time elapsed, unless the property had been stolen or taken by force. See USCAPIO. bona et catalla (boh-n<l et kd-tal-<l). [Law Latin] Goods and chattels. bona felonum. See BONA. bona fide (boh-n<l fId or boh-n<1 fI-dee), adj. [Latin "in good faith"] (17c) 1. Made in good faith; without fraud or deceit. 2. Sincere; genuine. See GOOD FAITH. bona fide, adv. bona fide contract. See CONTRACT. bona fide emptor (boh-n<l fld-ee emp-tdr). [Latin] Good faith purchaser. See bona fide purchaser under PUR CHASER (1). bona fide holder for value. See HOLDER FOR VALUE. bona fide intent to use. Trademarks. A specific, good faith intention to use a mark in the ordinary course of trade in interstate commerce and not merely to reserve it for later use, as determined by objective drcumstan tial evidence. _ A federal registration obtained under Lanham Act l(b) requires a bona fide intent to use the mark. If the required intent is later determined to be lacking, the registration may be invalidated. bona fide judgment creditor. See JUDGMENT CREDITOR. bona mobilia bona fide occupational qualification. (1945) An employ ment qualification that, although it may discriminate against a protected class (such as sex, religion, or national origin), relates to an essential job duty and is considered reasonably necessary to the operation of the particular business. -Such a qualification is not illegal under federal employment-discrimination laws. - Abbr. BFOQ. [Cases: Civil Rights ~ 11l8, 1529.] "The bona fide occupational qualification is a complete defense. It is invoked when the defendant makes a distinc tion expressly forbidden by Title VII, such as the refusal to hire women or women with preschoolage children, the reassignment of pregnant employees, or the exclusion of particular ethnic groups from particular jobs .... The employer's motivation for excluding the protected class is not significant in evaluating the BFOQ defense. The inquiry focuses on the necessity of using an expressly for bidden classification. The fact that the employer adopted the exclusion for invidious reasons, rather than for the business consideration on which the defense is based, is not material. Thus, if the exclusion, in fact, is proved to be necessary it may be used, even if invidiously motivated." Mack A. Player, Employment Discrimination Law 5.29, at 282-83 (1988). bona fide operation. A real, ongOing business. bona fide perceptio et consumptio (boh-nd fI-dee p<lr-sep-shee-oh et bn-sump-shee-oh). [Latin] Hist. Gathering and consuming in good faith. -The phrase appeared in reference to the rights of a bona fide pos sessor to keep fruit that the possessor gathers in good faith and consumes in good faith. bona fide possession. See POSSESSION. bona fide purchaser. See PURCHASER (1). bona fide purchaser for value. See bona fide purchaser under PURCHASER (1). bona fides (boh-n<) fl-deez), n. [Latin]!. GOOD FAITH. 2. Roman law. The standard of conduct expected of a reasonable person, esp. in making contracts and similar actions; acting without fraudulent intent or malice. bona fide sale. See SALE. bona fiscalia (boh-n<1- fis-kay-lee-<l), n. Public property. bona forisfacta. See BONA. bona fugitivorum. See BONA. bona gratia (boh-nd gray-shee-<l). [Latin] Roman law. In goodwill; in a friendly way. -The phrase typically referred to a divorce by mutual consent. bona gratia matrimonium dissolvitur (boh-nd gray shee-d ma-tr<l-moh-nee-<1m di-sol-vd-t<1r). [Law Latin "the marriage is dissolved in a friendly way"] Rist. A consensual divorce. bona immobilia. See BONA. bona memoria (boh-nd m<l-mor-ee-;J). [Latin] Good memory. -Bona memoria, as used in the phrase sanae mentis et bonae memoria (of sound mind and good memory), refers to a testator's mental capacity. See MIND AND MEMORY. bona mobilia. See BONA. bona notabilia. See BONA. bona paraphernalia. See BONA. bona passim (boh-n;.l pa-SI-V;.l). Roman law. Liabilities. Cf. BONA ACTIVA. bona peritura. See BONA. bona utlagatorum. See bona fugitivorum under BONA. bona vacantia. See BONA. bona waviata. See BONA. bond, n. (16c) 1. An obligation; a promise. "[Aln obligation, or in English a 'bond,' is a document written and sealed containing a confession of a debt; in later ti'mes 'contract' is the genus, 'obligation' the species." 2 Frederick Pollock & Frederic W. Maitland, The History of English Law 207 (2d ed. 1899). 2. A written promise to pay money or do some act if certain circumstances occur or a certain time elapses; a promise that is defeasible upon a condition subse quent; esp., an instrument under seal by which (1) a public officer undertakes to pay a sum of money if he or she does not faithfully discharge the responsibilities of office, or (2) a surety undertakes that if the public officer does not do so, the surety will be liable in a penal sum. ''The fact that an instrument is called a 'bond' is not con clusive as to its character. It is necessary to disregard nomenclature and look to the substance of the bond itself. The distinguishing feature of a bond is that it is an obliga' tion to pay a fixed sum of money, at a definite time, with a stated interest, and it makes no difference whether a bond is designated by that name or by some other, if it possesses the characteristics of a bond. There is no distinc' tion between bonds and certificates of indebtedness which conform to all the characteristics of bonds." 1 Silvester E. Quindry, Bonds & Bondholders Rights & Remedies 2, at 3-4 (1934). administrator's bond. See fiduciary bond. appeal bond. (18c) A bond that an appellate court may require from an appellant in a civil case to ensure payment of the costs of appeal; a bond required as a condition to bringing an appeal or staying execu tion of the judgment appealed from. Fed. R. App. P. 7. Cf: supersedeas bond. [Cases: Appeal and Error C=> 373-395; Federal Courts C=>661, 687.] appearance bond. See bail bond. arbitration bond. See ARBITRATION BOND. attachment bond. A bond that a defendant gives to recover attached property. The plaintiff then looks to the bond issuer to satisfy a judgment against the defendant. [Cases: Attachment C=>261; Federal Civil Procedure C=>585.] average bond. See general average bond. bail bond. (17c

Civil Procedure C=>585.] average bond. See general average bond. bail bond. (17c) A bond given to a court by a criminal defendant's surety to guarantee that the defendant will duly appear in court in the future and, if the defendant is jailed, to obtain the defendant's release from confinement. The effect of the release on bail bond is to transfer custody of the defendant from the officers of the law to the custody of the surety on the bail bond, whose undertaking is to redeliver the defendant to legal custody at the time and place appointed in the bond. -Also termed appearance bond; recognizance. See BAIL. [Cases: Bail C=>54.1.] bid bond. A bond filed in public construction projects to ensure that the bidding contractor will enter into the contract. The bid bond is a type of performance bond. [Cases: Public Contracts C=>9.] blank bond. Archaic. A bond in which the space for the creditor's name is left blank. blanket bond. 1. A bond covering several persons or projects that require performance bonds. 2. See fidelity bond. bond for land. A bond given by the seller of land to a buyer, binding the seller to convey once the buyer tenders the agreed price. -Also termed bond for a deed. Cf. BINDER (1). [Cases: Vendor and Purchaser C=>27.] bond of corroboration. An additional obligation undertaken to corroborate the debtor's original obli gation. bond to keep the peace. See peace bond. bottomry bond. A contract for the loan of money on a ship, usu. at extraordinary interest, for maritime risks encountered during a certain period or for a certain voyage . The loan can be enforced only if the vessel survives the voyage. -Also termed bot tom age bond. Cf. respondentia bond. [Cases: Shipping C=>89-100.] "A bottomry bond, strictly speaking, is a mortgage or pledge of a ship by the owner or agent, to secure the repayment of money lent for the use of the ship; and the conditions of it are, that if the ship is lost, the lender loses his money; but if it arrives, then, not only the ship itself is liable, but also the person of the borrower." John Indermaur, Principles of the Common Law 169 (Edmund H. Bennett ed., 1 st Am. ed. 1878). "[TJhe bottomry bond ... is a sort of mortgage on a ship, entered into for the purpose of raising money in case of necessity in a foreign port. The advance of communica tions has caused bottomry and respondentia bonds to pass virtually out of use." Grant Gilmore & Charles L. Black Jr., The Law of Admiralty 110, at 25 n.85 (2d ed. 1975). claim-property bond. See replevin bond. common-defeasance bond. See penal bond. common-law bond. A performance bond given by a construction contractor. A common-law bond exceeds the requirements of a statutory performance bond because it provides additional coverage for con struction projects. Cf. PERFORMANCE BOND. [Cases: Principal and Surety C=>65, 66(1), 82.] common money bond. A promise to pay money as a penalty for failing to perform a duty or obligation. contract bond. See PERFORMANCE BOND. cost bond. A bond given by a litigant to secure the payment of court costs. [Cases: Costs C=> 120-124; Federal Civil Procedure C=>2732.] counterbond. A bond to indemnify a surety. delivery bond. See forthcoming bond. 201 depository bond. A bond given by a bank to protect a public body's deposits should the bank become insol vent. discharging bond. (I8c) A bond that both permits a defendant to regain possession of attached property and releases the property from the attachment lien. Also termed dissolution bond. See forthcoming bond. [Cases: Attachment ~261.J executor's bond. A bond given to ensure the execu tor's faithful administration of the estate. See fidu ciary bond. [Cases: Executors and Administrators ~26.] 'The English law did not require an executor to give bond because he was appointed by the testator and his authority was derived from the will rather than court appointment. Some American jurisdictions do not require a bond of an executor. In the majority of our states a testator may by will dispense with the executor's bond, but in absence of such testamentary provision a bond will be required." Thomas E. Atkinson, Handbook of the Law of Wills 113, at 621 (2d ed. 1953). fidelity bond. A bond to indemnify an employer or business for loss due to embezzlement, larceny, or gross negligence by an employee or other person holding a position of trust. Also termed blanket bond. [Cases: Insurance ~ 1014,2400.] fiduciary bond. (1831) A type of surety bond required of a trustee, administrator, executor, guardian, con servator, or other fiduciary to ensure the proper per formance of duties. -Also termed administrator's bond. [Cases: Executors and Administrators Trusts C=' 161.J forthcoming bond. 1. A bond guaranteeing that some thing will be produced or forthcoming at a particu lar time, or when called for. 2. A bond (usu. given to a sheriff) to permit a person to repossess attached property in exchange for that person's commitment to surrender the property in the event of an adverse judgment; specif., a bond required of a defendant as a condition of retaining or regaining possession of a chattel in an attachment or replevin action, whereby the surety agrees to surrender the chattel and to pay its value if the plaintiff wins the lawsuit. Also termed delivery bond. Cf. replevin bond. lCases: Attachment C::::-;261.] general-average bond. Maritime law. A bond given to the captain of a ship by consignees of cargo subject to general average, guaranteeing payment of their contribution once it is ascertained . 'When the con tribution amounts are disputed, the carrier requires this bond before agreeing to unload the ship. It may also be reqUired when the amounts are undisputed, as security for payment. -Also termed average bond. See general average under AVERAGE (3). [Cases: Shipping ~ 198.) guaranty bond. A bond combining the features of a fidelity and a surety bond, securing both payment and performance. heritable bond. Scots law. A bond secured by land. bond hypothecation bond. Maritime law. A bond given in the contract of bottomry or respondentia. [Cases: Shipping ~89-100.) indemnity bond. A bond to reimburse the holder for any actual or claimed loss caused by the issuer's or some other person's conduct. [Cases: Indemnity ~ 28.) injunction bond. A bond required of an injunction applicant to cover the costs incurred by a wrongfully enjoined party; a bond required as a condition of the issuance or continuance of a bond. Fed. R. Civ. P. 65(c). [Cases: Injunction ~ 148.] interim bond. 1. A bond set by a police officer when a person is arrested for a minor offense, such as a mis demeanor, without a warrant. Although the bond allows the arrestee to be released, it requires that the person be available for arraignment. 2. A bond set by a judge or magistrate and attached to a misdemeanor warrant. judicial bond. (18c) A bond to indemnify an adverse party in a lawsuit against loss occasioned by delay or by deprivation of property resulting from the lawsuit. Judicial bonds are usu. classified according to the nature of the action in which they are required, as with appeal bonds, injunction bonds, attachment bonds, replevin bonds, forthcoming or redelivery bonds, and bail bonds. A bond of a fiduciary such as a receiver, administrator, executor, or guardian is often reqUired as a condition to appointment. liability bond. A bond intended to protect the assured from a loss arising from some event specified in the bond. license bond. A bond required of a person seeking a license to engage in a specified business or to receive a certain privilege. -Also termed permit bond. [Cases: Licenses C~/ 26.] maintenance bond. A bond guaranteeing against con struction defects for a period after the completion of the contracted-for work. [Cases: Principal and Surety ~82; Public Contracts ~45.] negotiable bond. A bond that can be transferred from the original holder to another. [Cases: Bonds 74.] official bond. 1. A bond given by a public officer requir ing the faithful performance of the duties of office. 2. A bond filed by an executor, guardian, trustee, or other fiduciary. See fidUCiary bond. [Cases: Officers and Public Employees C-::::>37.J payment bond. (1877) A bond given by a surety to cover any amounts that, because of the general contractor's default, are not paid to a subcontractor or materials supplier. [Cases: Principal and Surety ~82; Public Contracts "[TJhe bond serves two purposes: it assures the owner a lien-free project, and it induces suppliers and subcontrac tors to accept work on the project, perhaps at a lower price, because of the assurance that they will be paid. Since no additional charge is generally made for a payment bond when a performance bond is being purchased, the two are usually issued simultaneously." Grant S. Nelson, Real Estate Finance Law 12.2, at 881 (3d ed. 1994). peace bond. (1846) A bond required by a court from a person who has breached or threatened to breach the peace. -Also termed bond to keep the peace. See BREACH OF THE PEACE. [Cases: Protection of Endan gered Persons C=>35; Criminal Law ~ 1223.] penal bond. (17c) A bond requiring the obligor to pay a specified sum as a penalty if the underlying obligation is not performed. -Also termed penal bill; common defeasance bond. [Cases: Bonds ~ 1, 50.] performance bond. See PERFORMANCE BOND. permit bond. See license bond. personal bond. 1. See bail bond. 2. A written document in which an obligor formally recognizes an obligation to pay money or to do a specified act. 3. Scots law. A bond containing a promise without security. probate bond. A bond, such as that filed by an executor, required by law to be given during a probate proceed ing to ensure faithful performance by the person under bond. [Cases: Executors and Administrators ~26.] redelivery bond. See replevin bond. refunding bond. A bond given to assure an executor that a legatee will return an estate distribution should the remaining estate assets be insufficient to pay the other legacies. [Cases: Executors and Administrators ~299.] registered bond. A governmental or corporate obliga tion to pay money, represented by a single certificate delivered to the creditor. The obligation is regis tered in the holder's name on the books of the debtor. [Cases: Corporations ~471; Municipal Corpora tions ~936.] removal bond. 1. A bond to cover possible duties owed by a person who removes goods from a warehouse for export. 2. A bond required in some states when a litigant seeks to remove an action to another court. [Cases: Removal of Cases ~88.] replevin bond (ri-plev-in). 1. A bond given by a plain tiff to replevy or attach property in the defendant's possession before judgment is rendered in a replevin action . The bond protects the attaching officer and ensures the property's safekeeping until the court decides whether it should be returned to the defen dant. -Also termed replevy bond. See REPLEVIN. [Cases: Replevin ~33.] 2. A bond given by a defen dant in a replevin action to regain attached property pending the outcome of litigation . The bond does not discharge the attachment lien. [Cases: Replevin ~49.] -Also termed replevy bond; claim-property bond; redelivery bond. Cf.forthcoming bond. respondentia bond (re-spon-den-shee-Cl or ree-). A contract containing the pledge of a ship's cargo; a mortgage of a ship's cargo. Cf. bottomry bond. [Cases: Shipping ~89-100.] "A respondentia bond is a loan upon the pledge of the cargo, though an hypothecation of both ship and cargo may be made in one instrument; and generally, it is only a personal obligation on the borrower, and is not a specific lien on the goods, unless there be an express stipulation to that effect in the bond; and it amounts, at most, to an equitable lien on the salvage in case of loss." 3 James Kent, Commentaries on American Law *354-55 (George Comstock ed., 11th ed. 1866). simple bond. 1. A bond without a penalty. 2. A bond payable to a named obligee on demand or on a certain date. statutory bond. A bond that literally or substantially meets the requirements of a statute. [Cases: Bonds ~31, 50.] straw bond. (1876) A bond, usu. a bail bond, that carries either a fictitious name or the name of a person who is unable to pay the sum guaranteed; a worthless or inadequate bond. submission bond. A bond given by a litigant who agrees to submit a lawsuit to arbitration and to be bound

submission bond. A bond given by a litigant who agrees to submit a lawsuit to arbitration and to be bound by an arbitrator's award. [Cases: Alternative Dispute Resolution ~ 167.] supersedeas bond (soo-pClr-see-dee-Cls). (18c) An appel lant's bond to stay execution on a judgment during the pendency of the appeal. Fed. R. Civ. P. 62(d); Fed. R. App. P. 8(b). -Often shortened to supersedeas. See SUPERSEDE (2). Cf. appeal bond. [Cases: Appeal and Error ~460; Execution ~ 158(2); Supersedeas ~5.l surety bond. See PERFORMANCE BOND. ten-percent bond. A bail bond in the amount of 10% of the bond otherwise required for a defendant's release. This type of bond usu. allows a defendant to arrange a bond without the services of a bondsman or other surety. unsecured bail bond. A bond that holds a defendant liable for a breach of the bond's conditions (such as failure to appear in court), but that is not secured by a deposit of or lien on property. See RECOGNIZANCE. [Cases: Bail ~40, 55.] 3. A long-term, interest-bearing debt instrument issued by a corporation or governmental entity, usu. to provide for a particular financial need; esp., such an instrument in which the debt is secured by a lien on the issuer's property. Cf. DEBENTURE. "Typically debt securities are notes, debentures, and bonds. Technically a 'debenture' is an unsecured corporate obliga tion while a 'bond' is secured by a lien or mortgage on corporate property. However, the word 'bond' is often used indiscriminately to cover both bonds and debentures .... A 'bond' is a long term debt security while a 'note' is usually a shorter term obligation. Bonds are historically bearer instruments, negotiable by delivery, issued in multiples of $1,000 with interest payments represented by coupons that are periodically clipped and submitted for payment." Robert W. Hamilton, The Law of Corporations in a Nutshell 128 (3d ed. 1991). accrual bond. A bond -usu. the last collateralized mortgage-obligation issue -from which no princi pal or interest payment will be made until any bonds 203 issued earlier have been fully paid. -Also termed Z-bond. adjustment bond. A bond issued when a corporation is reorganized. Also termed reorganization bond. annuity bond. A bond that lacks a maturity date and that perpetually pays interest. -Also termed consol; perpetual bond; continued bond; irredeemable bond. [Cases: Annuities <> 19,22.] arbitrage bond. A municipal bond, the proceeds of which are invested in bonds paying a higher yield than that paid by the municipality on its own bonds. Under the Internal Revenue Code, the tax-free aspect of municipal-bond income may be lost if the bonds are classified as arbitrage bonds. See ARBI TRAGE. [Cases: Internal Revenue <>3132.10.] assessment bond. A municipal bond repaid from property assessment taxes. [Cases: Municipal Cor porations <>950.] assumed bond. See guaranteed bond (1). baby bond. A bond usu. having a face value of $1 ,000 or less. bearer bond. (1887) A bond payable to the person holding it. The transfer of possession transfers the bond's ownership. C. registered bond. [Cases: Bonds 86.] bond and mortgage. A bond that is backed by a mortgage on realty. -Also termed mortgage bond. C' DEBENTURE (3). book-entry bond. A bond for which no written certifi cate is issued to reflect ownership. callable bond. (1926) See redeemable bond. chattel-mortgage bond. A bond secured by a mortgage on personal property. closed-end mortgage bond. A mortgage bond with pro visions prohibiting the debtor from issuing additional bonds against the bond's collateral. collateral trust bond. 1. A bond representing a debt secured by the deposit of another security with a trustee. Also termed collateral trust certificate. 2. A long-term corporate bond that is secured by other companies' mortgage bonds held by the corporation, which pledges and depOSits the mortgage bonds in trust. The interest on these collateral trust bonds is typically lower than that received on the bonds pledged; the surplus is used to form a sinking fund to redeem the collateral trust bonds. A holding company often issues these bonds by pledging the stock of a subsidiary. commodity-backed bond. A bond with interest payments or principal repayment tied to the price of a specific commodity, such as gold . This type of bond, which has a low interest rate but prOVides a hedge against inflation because the commodity price will usu. rise, is often issued by a firm with a stake in the commodity. bond consolidated bond. 1. A railroad bond secured by a mortgage on the entire railroad line formed by several consolidated railroads. Cf. divisional bond. 2. A single bond that replaces two or more outstanding issues. construction bond. A bond issued by a governmental entity for a building project. [Cases: Municipal Cor porations <>911.] continued bond. See annuity bond. convertible bond. (1857) A bond that can be exchanged for stock shares in the corporation that issued the bond. [Cases: Corporations <>470.) corporate bond. 1. An interest-bearing instrument con taining a corporation's promise to pay a fixed sum of money at some future time . A corporate bond be secured or unsecured. [Cases: Corporations 470.] 2. A bond issued by a corporation, usu. having a maturity of ten years or longer. county bond. A county-issued bond paid through a levy on a special taxing district, whether or not the district is coextensive with the county. [Cases: Counties 187.) coupon bond. A bond with attached interest coupons that the holder may present to receive interest payments. See BOND COUPON. cumulative income bond. See income bond. cushion bond. A bond paying an uncommonly high interest rate. debenture bond. See DEBENTURE (3). deferred-interest bond. A bond whose interest payments are postponed for a time. discount bond. (l918) A bond sold at its current market value, which is less than its face value. -Also termed non-interest-bearing bond. divisional bond. A railroad bond secured by a mortgage on a specific segment of a consolidated railroad system. Cf. consolidated bond (1). endorsed bond. See guaranteed bond (1). equipment trust bond. A bond secured by tangible property, such as an airplane . A trustee usu. holds title to the equipment, which is leased to the issuer. Also termed equipment trust certificate. ex coupon bond. A bond sold without coupons at tached. ex legal municipal bond. A municipal bond that does not have the legal opinion of a bond-law firm printed on it. Cf. municipal bond. first-mortgage bond. A long-term bond that has the first claim on specified assets. flat bond. A bond that trades without accrued inter" est. floating-interest bond. A bond with an interest rate that moves up and down with changing economic conditions. bond flower bond. A Treasury bond redeemable before maturity if used to settle federal estate taxes . Flower bonds were issued before April 1971 and reached final maturity in 1998. Two etymological theories have been advanced to explain the term. The first, and more likely, is that the bonds had flowers engraved on their reverse side. The second is that they "blossomed" upon the death of their owner. Internal Revenue (;:=04830.] foreign bond. A bond issued in a currency different from that used where the issuer is located, such as a Canadian-government bond that is denominated in U.S. dollars and issued in the United States. full-faith-and-credit bond. See general-obligation bond. general-mortgage bond. A corporate bond secured by a blanket mortgage on property . The general-mort gage bond, however, is often less valuable because it is subordinate to prior mortgages. [Cases: Corpora tions <::=>470.) general-obligation bond. A municipal bond payable from general revenue rather than from a special fund . Such a bond has no collateral to back it other than the issuer's taxing power. Often shortened to obligation bond. -Also termed full-faith-and-credit bond. [Cases: Municipal Corporations "There are two main types of bonds issued by local govern ments: general obligation bonds and revenue bonds .... Bonds will be assumed to be general obligation unless they themselves contain a clear promise to pay only out of a special fund."' Osborne M. ReynoldsJr., Handbook of Local Government Law 104, at 323 (1982). gold bond. 1. Hist. A bond payable in gold coin or U.S. currency at the election of the bondholder . This type of bond existed until 1933, when the U.S. monetary system abandoned the gold standard. 2. A commodity-backed bond that is secured by gold and issued by a gold-mining company. government bond. 1. See savings bond. 2. See govern ment security under SECURITY. guaranteed bond. 1. A bond issued by a corporation and guaranteed by a third party . This type of bond is common among railroads. Also termed endorsed bond; assumed bond; joint bond. 2. A bond issued by a subsidiary corporation whose parent corporation guarantees the principal and interest payments. high-yield bond. A high-risk, high-yield subordinated bond issued by a company with a credit rating below investment grade. Also termed junk bond; high yield debt obligation. improvement bond. See revenue bond. income bond. A corporate bond secured by the cor poration's net income, after the payment of interest on senior debt. Sometimes this type of bond is a cumulative-income bond, in which case, if the income in any year is insufficient to pay the full interest, the deficit is carried forward as a lien on any future 204 income. Also termed cumulative income bond. [Cases: Corporations <8=:'470.) indeterminate bond. A callable bond with no set maturity date. industrial-development bond. 1. A type of revenue bond in which interest and principal payments are backed by a corporation rather than a municipality. This type of bond usu. finances a private business facility. 2. A tax-exempt municipal bond that finances a Will. local industry. -Also termed industrial-reve nue bond. [Cases: Municipal Corporations (;:=0912.] interchangeable bond. A bond that can be exchanged for a different type of bond, such as a coupon bond that may be exchanged for a registered bond. interest bond. A bond paid in lieu of interest due on other bonds. investment-grade bond. A bond with a rating of BBB or better by the leading bond rating services. See INVESTMENT-GRADE RATING. irredeemable bond. See annuity bond. joint and several bond. A bond in which the principal and interest are guaranteed by two or more obligors. [Cases: Bonds (;:=051.] joint bond. A bond signed by two or more obligors . In contrast to a joint and several bond, all the obligors must be joined if an action is brought on the bond. [Cases: Bonds G:::>51, 122.] junior bond. A bond subordinate in priority to another bond. junk bond. (1974) See high-yield bond. leasehold-mortgage bond. A bond issued by a lessee and secured by the lessee's leasehold interest. Lloyd's bond. Hist. English law. A corporate bond issued on work done or goods delivered . A bond issued in this manner avoids any restriction on indebtedness existing either in law or in corporate bylaws. The term supposedly derives from an English lawyer named Lloyd, who is credited with devising the method. mortgage bond. A bond secured by the issuer's real property. multimaturity bond. See put bond. municipal bond. (1858) A bond issued by a nonfed eral government or governmental unit, such as a state bond to finance local improvements . The interest received from a municipal bond may be exempt from federal, state, and local taxes. -Often shortened (in plural) to municipals; munies. -Also termed munic ipal security. Cf. ex legal municipal bond. [Cases: Municipal Corporations C="o91 1.] noncallable bond. See noncallable security under SECURITY. non-interest-bearing bond. See discount bond. nonstatutory bond. See voluntary bond. obligation bond. See general obligation bond. 205 open-end mortgage bond. A mortgage bond that can be used as security for another bond issue. optional bond. A bond that the holder may redeem before its maturity date if the issuer agrees. option tender bond. See put bond. participating bond. A bond that entitles the holder to a share of corporate profits but does not have a fixed interest rate. passive bond. A bond bearing no interest. See passive debt under DEBT. [Cases: Bonds perpetual bond. See annuity

no interest. See passive debt under DEBT. [Cases: Bonds perpetual bond. See annuity bond. post-obit bond. An agreement by which a borrower promises to pay to the lender a lump sum (exceeding the amount advanced) upon the death of a person whose property the borrower expects to inherit. - Equity traditionally enforces such bonds only if the terms are just and reasonable. Also termed post obit agreement. premium bond. (1871) A bond with a selling price above face or redemption value. See PREMIUM (3). put bond. A bond that gives the holder the right to redeem it for full value at specified times before maturity. -Also termed multimaturity bond; option tender bond. Cf. put option under OPTION. railroad-aid bond. A bond issued by a public body to fund railway construction. redeemable bond. A bond that the issuer may call for payment. -Also termed callable bond. re-funding bond. A bond that retires an outstanding bond. [Cases: Municipal Corporations registered bond. (1865) A bond that only the holder of record may redeem, enjoy benefits from, or transfer to another. Cf. bearer bond. [Cases: Bonds 86.] reorganization bond. See adjustment bond. revenue bond. A government bond repayable from public funds. -Also termed improvement bond. [Cases: Municipal Corporations C:::>950(15).] savings bond. (1948) A nontransferable bond issued by the U.S. government. -Also termed government bond. [Cases: United States C:::>91.] school bond. A bond issued by a city or school district to fund school construction. [Cases: Schools secured bond. (1849) A bond backed by some type of security. Cf. DEBENTURE (1), (3). [Cases: Corporations C:::>473.] serial bond. (1889) A bond issued concurrently with other bonds having different maturity dates. series bonds. (1920) A group of bonds issued under the authority of the same indenture, but offered publicly at different times and with different maturity dates and interest rates. single bond. See bill obligatory under BILL (7). bonded debt sinking-fund bond. A bond backed by a sinking fund for bond redemption. See sinkingfund under FUND (1). [Cases: Municipal Corporations special-tax bond. A municipal bond secured by taxes levied for a specific governmental purpose, usu. improvements. -Also termed special-assessment bond. [Cases: Municipal Corporations state bond. A bond issued by a state. 147.1 statutory bond. A bond given in accordance with a statute. [Cases: Bonds (;31,50.] subordinated bond. See junior bond. tax-exempt bond. A bond that pays tax-free interest. [Cases: Internal Revenue C:::>3132.l0; Taxation 3410,3462.] term bond. A bond that matures concurrently with other bonds in that issue. TIPS bond. See TREASURY BOND. Treasury bond. See TREASURY BOND. unsecured bond. See DEBENTURE (3). voluntary bond. A bond not required by statute but given anyway. -Also termed nonstatutory bond. Z-bond. See accrual bond. zero-coupon bond. (1979) A bond paying no interest. -It is sold at a discount price and later redeemed at face value, the profit being the difference. Also termed passive bond. See zero-coupon security under SECURITY. bond, vb. (16c) 1. To secure payment by providing a bond <at the creditor's insistence, Gabriel consolidated and bonded his various loans>. 2. To provide a bond for (a person) <the company bonded its off-site workers>. bondable, adj. Capable of obtaining a bond to protect another person; of or relating to a person whose record is sufficiently clear of criminal convictions or other evidence of questionable character that a bonding agency would be willing to guarantee the person's conduct. See BOND (2). bond and mortgage. See BO:-.!D (3). bond conversion. The exchange of a convertible bond for another asset, usu. stock. bond coupon. The part of a coupon bond that is clipped by the holder and surrendered to obtain an interest payment. See coupon bond under BOND (3). bond covenant. A bond-indenture provision that protects bondholders by specifying what the issuer mayor may not do, as by prohibiting the issuer from issuing more debt. See BOND INDENTURE (1). bond creditor. See CREDITOR. bond discount. See DISCOUNT (3). bond dividend. See DIVIDEND. bonded, adj. (1945) (Of a person or entity) acting under, or placed under, a bond <a bonded court official>. bonded debt. See DEBT. bonded warehouse bonded warehouse. See WAREHOUSE. bond for a deed. See bond for land under BOND (2). bond for deed. 1. See CONVEYANCE (6). 2. See BOND FOR TITLE. bond for land. See BOND (2). bond for title. Real estate. The seller's retention of legal title until the buyer pays the purchase price. Also termed bond for deed. Cf. contract for deed under CONTRACT. [Cases: Vendor and Purchaser bond fund. See MUTUAL FUND. bondhol4er. One who holds a government or business bond. bond indenture. (1891) 1. A contract between a bond issuer and a bondholder outlining a bond's face value, interest rate, maturity date, and other features. 2. A mortgage held on specified corporate property to secure payment of the bond. bonding company. See COMPANY. bond issue. See ISSUE (2). bondman. See BONDSMAN (2). bond of corroboration. See BOND (2). bond premium. See PREMIUM (3). bond rating. A system of evaluating and appraising the investment value of a bond issue. bond retirement. (1897) 1be cancellation of a bond that has been called or paid. bondsman. (Be) L One who guarantees a bond; a surety. 2. Rist. A serf or peasant; VILLEIN. Also termed (in sense 2) bondman. bond table. A schedule used in determining a bond's current value by its coupon rate, its time to maturity, and its effective yield if held to maturity. bond trust. See TRUST. bones gents (bohn jents). [Law French "good men"] Rist. Qualified or competent persons; esp., men qualified to serve on a jury. bonification (bahn-d-fi-kay-sh;:m). A tax remission, usu. on goods intended for export. -Bonification enables a commodity to be sold in a foreign market as if it had not been taxed. boni homines (boh-m hom-d-neez). [Law Latin "good men") Hist. Free tenants who judged each other in their lord's court. "[WJe may find traces of juries in the laws of all those nations which adopted the feodal system, as in Germany, France. and Italy; who had all of them a tribunal composed of twelve good men and true, 'boni homines' .... " 3 William Blackstone. Commentaries on the Laws of England 349 (1768). bonis cedere (boh-nis see-do:l-ree). [Latin "to cede one's goods"] Civil law. A transfer or surrender of property, usu. from a debtor to a creditor. bonis non amovendis. See DE BONIS NON AMOVENDIS. 206 bonitarian (bahn-d-tair-ee-in), adj. Roman law. L Equi table or beneficial. -Also termed bonitary. Cf. QUIRI TARIAN. 2. Hist. Pertaining to or designating a property interest governed by praetorian edict rather than civil law. See edictum praetoris under EDICTUM. bonitary (bahn-d-tair-ee-in), adj. Equitable; BONITAR IAN (1). bonitaryownership. See OWNERSHIP. bono et malo (boh-noh et mal-oh). See DE BO:NO ET MALO. bonorum possessio contra tabulas (bd-nor-dm po:l-zes(hj ee-oh kahn-trd tab-Yd-Ids). [Latin "possession of goods contrary to the terms of the will "] Roman law. An order authorizing the applicant to take possession of an estate contrary to the testament. -Magistrates made such orders in certain cases, as where a testator passed over a daughter or an emancipated son who was not expressly disinherited. The legacies in the will remained valid, but if the testator passed over any male in the testator's power (patria potestas), the will was invalidated and intestacy resulted. -Also termed contra tabulas. The Praetor could not affect the civil validity of a will; he could not make or unmake a heres. He could. however, give bonorum possessiO to a person, heres or not at civil law, which gave him power to take possession of the goods by appropriate steps, bonorum possessio contra tabu las .... " WW. Buckland, A Text-Book of Roman Law from Augustus to Justinian 324 (Peter Stein ed., 3d ed. 1963). bonum factum (boh-ndm fak-tdm). [Latin] A good or proper act or deed. -Abbr. b.f Also termed bene factum. bonus. (18c) 1. A premium paid in addition to what is due or expected <year-end bonus>. -In the employment context, workers' bonuses are not a gift or gratuity; they are paid for services or on consideration in addition to or in excess of the compensation that would ordinarily be given. 2. BOUNTY (3). 3. Oil & gas. A payment that is made in addition to royalties and rent as an incen tive tor a lessor to sign an oil-and-gas lease <the lessee received a large bonus at dosing>. [Cases: Mines and Minerals ~79.l(2).] "The amount of bonus paid, usually referred to as a per acre amount. may fluctuate widely between properties. The amount paid depends upon the nature of the development activity in the vicinity. If the land is located in a semiproven area, or in a logical extension of a proven field, the bonus paid may be substantial." Richard W. Hemingway, The Law of Oil and Gas 2.5, at 57 (3d ed. 1991). performance bonus. A bonus given as a reward for out- standing productivity. bonus share. See bonus stock under STOCK. bonus stock. See STOCK. bonus zoning. See incentive zoning under ZONING. boodle. Slang. Money paid as a bribe, usu. to a public official. boodling. Hist. Slang. Bribery. boodle, vb. book, vb. (l3c) 1. To record in an accounting journal (as a sale or accounting item) <Jenkins booked three sales that day>. 2. To record the name of (a person arrested) 207 in a sequential list of police arrests, with details of the person's identity (usu. including a photograph and a fin gerprint), particulars about the alleged offense, and the name of the arresting officer <the defendant was booked immediately after arrest>. 3. To engage (someone) con tractually as a performer or guest <although the group was booked for two full performances, the lead Singer, Raven, canceled and this action ensued>. See BOOKING CONTRACT. book account. See ACCOUNT. book entry. (ISc) 1. A notation made in an account ing journaL 2. The method of reflecting ownership of publicly traded securities whereby a customer of a brokerage firm receives confirmations of transactions and monthly statements, but not stock certificates. See CENTRAL CLEARING SYSTEM. [Cases: Brokers 26.] book-entry bond. See BOND (3). book equity. The percentage of a corporation's book value allocated to a particular class of stock. Cf. BOOK VALUE; MARKET EQUITY. bookie. See BOOKMAKER. booking contract. An agreement by which an actor or other performer is engaged. bookkeeping, n. (l7c) The mechanical recording of debits and credits or the summarizing of financial informa tion, usu. about a business enterprise. Cf. ACCOUNT ING. double-entry bookkeeping. A method of bookkeep- in which every transaction recorded by a business involves one or more "debit" entries and one or more "credit" entries . The debit entries must equal the credit entries for each transaction recorded. single-entry bookkeeping. A method of bookkeeping in which each transaction is recorded in a single record, such as a record of cash or credit accounts. bookland (buuk-Iand). Hist. Land held under royal charter or deed; freehold land . This was a privileged form of ownership (usu. free of the customary burdens on land) generally reserved for churches and leaders. Also spelled boc/and; bockland. -Also termed charter land. Cf. LOANLAND; FOLKLAND. "Charter-land is such as a man holds by charter, that is, by evidence in writing, which otherwise is called freehold. .. [Tlhis land was held with more easy and commodious con ditions, than folkland and copy-hold land held without writing; ... it is a free and absolute inheritance; whereas land without writing is charged with payment and bondage; so that for the most part noblem

it is a free and absolute inheritance; whereas land without writing is charged with payment and bondage; so that for the most part noblemen and persons of quality possess the former, and rustics the other. The first we call freehold and by charter: the other, land at the will of the lord." Termes de la Ley 80 (1st. Am. ed. 1812). "From very early times it was common to make grants of land to religious bodies or to individuals. The grants were effected by the king as the chief of the community, with the consent of the great men, who in conjunction with the great ecclesiastics, after the introduction of Christianity, formed the Witenagemot, or Assembly of the Wise. The grant was made by means of a 'book' or charter. Land thus granted was said to be 'booked' to the grantee, and was called bocland or bookland. Thus bookland comes to mean boon day land held under a written instrument by private persons or churches; who or whose predecessors are, or at least are supposed to have been, grantees of the community. The practice seems, after the introduction of Christianity, to have prevailed chiefly in favour of religious houses, and in this way the great ecclesiastical corporations acquired their property .... In process of time the conception of bookland seems to be coextensive with that of alodial land." Kenelm E. Digby, An Introduction to the History of the Law of Real Property 11-12 (5th ed. 1897). "Prior to the Conquest, property in land was divided into bocland, folcland, and laenland. The exact nature of these rights has been disputed, but probably hocland was held by owners of high station claiming under a charter of privi leges originally granted by the King, while folclandwas held by ordinary owners according to the custom of the district in which the land lay. Laenland, or loanland, appears to have represented something in the nature of a tenancy of a less enduring character. It derived its existence from the loan of land by one person to another, and hence empha sises the relation later known as that of feudal landlord and tenant. Furthermore, as bocland became more common, a tendency for laenland and hocland to coalesce appeared." A.K.R. Kiralfy, Potter's Outlines of English Legal History 195 (5th ed. 1958). bookmaker. A person who determines odds and receives bets on the outcome of events, esp. sports events. - Also termed bookie. See BOOKMAKING. bookmaking. Gambling that entails the taking and recording of bets on an event, esp. a sporting event such as a horse race or football game. [Cases: Gaming book of original entry. A day-to-day record in which a business's transactions are first recorded. books of account. See SHOP BOOKS. Books of Adjournal. Scots law. The records of the High Court ofJusticiary. Books of Sederunt. Scots law. The records of the Court of Session. book value. (1894) 1. The value at which an asset is carried on a balance sheet. Cf. BOOK EQUITY. Also termed carrying value. 2. See OWNER'S EQUITY. adjusted book value. The current actual value of an asset or liability as compared to the value when it was first acquired or incurred or when changes were pre viously updated. net book value. See OWNER'S EQUITY. book-value stock. See STOCK. boomage. 1. A fee charged by a company for collect ing and distributing logs that have accumulated in its boom (Le., a line of sawed logs collected and stored on a stream's surface). [Cases: Logs and Logging 14.] 2. A right to enter on riparian lands to fasten booms. 3. An anchorage fee charged by a canal proprietor. [Cases: Canals (::;;;)27.J boon, n. Hist. Unpaid services, rendered in kind or labor, without being fixed in amount or time, that some tenants owed to the landowner as a condition of tenancy. boon day. (usu. pI.) Hist. One of several days in the year when copyhold tenants were obliged to perform base boot services for the lord (such as reaping corn) without pay. Also termed due day. Sometimes (errone ously) termed bind day. boot, n. 1. Tax. Supplemental money or property subject to tax in an otherwise tax-free exchange. [Cases: Internal Revenue (:::::::>3679.] 2. Corporations. In a cor porate reorganization, anything received other than the stock or securities of a controlled corporation. 3. Commercial law. Cash or other consideration used to balance an otherwise unequal exchange. 4. Hist. ESTOVERS (1). 5. BOTE (1). boot camp. (1916) 1. A camp for basic training of Navy or Marine Corps recruits. 2. A military-like facility esp. for juvenile offenders. -Boot camps are special ized programs for offenders who are generally nonvio lent males from 17 to 25 years old. While proponents applaud the success of these programs, others find their long-term success limited at best. See shock incarcera tion under INCARCERATION. boothage (boo-thij). See BOTHAGIUM. bootleg, vb. Copyright. To make, distribute, or traffic in unauthorized sound or video recordings of live. broad cast. or recorded performances that have not been com mercially released by the copyright owner. -The term strictly applies only to unauthorized copies of com mercially unreleased performances. Dowling v. United States, 473 U.S. 207, 209 n. 2, 105 S.Ct. 3127, 3129 n. 2 (1985) (Blackmun, J.). See PIRACY (4). bootleg, vb. bootleg; bootlegged, adj. bootleg copy. Copyright. See BOOTLEG RECORDING (1). bootlegger, n. A person who manufactures. transports, or sells something illegally, esp. alcoholic beverages. See MOONSHINE. [Cases: Intoxicating Liquors (:::::::>'137, 138,146.] bootleg recording, n. Copyright. 1. An unauthorized fixation or copy of a live or broadcast performance in a tangible medium or digital duplication made avail able over the Internet. -Also termed bootleg copy, underground recording, import recording. [Cases: Copy rights and Intellectual Property (:::::::>67.2.]2. See PIRATE RECORDING. 3. COUNTERFEIT RECORDING. bootstrap, vb. (1951) 1. To succeed despite sparse resources. 2. To reach an unsupported conclusion from questionable premises. bootstrap doctrine. (1940) Conflict of laws. The doctrine that forecloses collateral attack on the jurisdiction of another state's court that has rendered final judgment. The doctrine applies when a court in an earlier case has taken jurisdiction over a person. over status, or over land. It is based on the principle that under res judicata. the parties are bound by the judgment. whether the issue was the court's jurisdiction or something else. The bootstrap doctrine, however. cannot effectiveness to a judgment by a court that had no subject-matter jurisdiction. For example. parties cannot, by appearing before a state court, "bootstrap" that court into having jurisdiction over a federal matter. [Cases: Judgment C-'=' 488,818,829.] 208 "If the court which rendered the judgment has, with the parties before it. expressly passed upon the jurisdictional question in the case, or had opportunity to do so because the parties could have raised the question, that question is res judicata, and is therefore not subject to collateral attack in the state in which the judgment is sued on. This has been called the 'bootstrap doctrine,' the idea being that a court which initially had no jurisdiction can when the issue is litigated lift itself into jurisdiction by its own incorrect but conclusive finding that it does havejurisdic tian." Robert A. Leflar. American Conflicts Law 79, at 159 (3d ed. 1977). bootstrap sale. See SALE. booty. 1. Int'llaw. Movables taken from the enemy as spoils in the course of warlike operations. -Also termed spoils of war. 2. Property taken by force or piracy; prize or loot. BOP. abbr. BUREAU OF PRISONS. bordage (bor-dij). Hist. A type of tenure in which a tenant holds a cottage and a few acres in exchange for providing customary services to the lord. Also termed bordagium. bordar (bor-d;:lr). Hist. A bordage tenant. -The status of such a tenants was less servile than that of a villein tenant. See BORDAGE; VILLEINAGE. Also termed bordarius (pI. bordarii). border. A boundary between one nation (or a political subdivision) and another. Border and Transportation Security Directorate. The division of the U.S. Department of Homeland Security responsible for maintaining the safety of the nation's borders and transportation systems. _ The Directorate includes the Transportation Security Administration, the U.S. Customs Service. the border security func tions of the U.S. Citizenship and Immigration Service, the Animal & Plant Health Inspection Service. and the Federal Law Enforcement Training Center. It is the Department's largest division. Abbr. BTS. border control.lnt'llaw. A country's physical manifes tation of its territorial sovereignty, by which it regu lates which people and goods may enter and leave. - As a practical matter, border controls are often used to contain plant and animal diseases, fight terrorism, and detect the movement of criminals. bordereau (bor-d;:l-roh). n. 1. A description of reinsured risks; esp., a periodic report provided by a cedent to a treaty reinsurer, consisting of basic information affecting the reinsurance treaty, such as the underly ing insureds, the types of risks covered, policies, and dates ofloss. See REINSURANCE TREATY. 2. A detailed note of account. PI. bordereaux. bordereau, vb. border search. See SEARCH. border warrant. See WARRANT (1). bord-halfpenny (bord-hay-p;:l-nee). See BOTHAGIUM. bordlands. Hist. Land used by the nobility to produce food. _ Bordlands remained under the nobility's direct control or were given to tenants who produced provi sions for the landowner. Cf. BORDAGE. 209 borg (borg), n. Hist. Scots law. 1. A thing deposited as a security, esp. for bail or a suretyship. 2. A surety. - Also spelled borghe; borh. borgh. 1. See BORG. 2. See BORROW. borh. 1. See BORG. 2. See BORROW. bork (bork), vb. (1987) Slang. 1. (Of the u.s. Senate) to reject a nominee, esp. for the U.S. Supreme Court, on grounds of the nominee's political and legal philoso phy . The term derives from the name of Robert Bark, President Ronald Reagan's unsuccessful nominee for the Supreme Court in 1987. 2. (Of political and legal activists) to embark on a media campaign to pressure U.S. Senators into rejecting a President's nominee. 3. Generally, to smear a political opponent. born-alive test. 1. Under the common law, a showing that an infant was completely expelled from the mother's womb and possessed a separate and independent exis tence from the mother. 2. A shoWing that an infant, at the time of birth, was capable of living a separate and independent existence (regardless of how long the infant actually lived) . This test was first announced in Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946). [Cases: Abortion and Birth Control (~109.] born valid. Patents. Presumed to be good; entitled to the legal presumption that a patent was justified when issued and that challengers bear the burden of proving by dear and convincing evidence that the patent should not have been granted . Defenses against infringe ment claims take three tacks: denying that the product infringes on the plaintiff's rights, challenging the validity of the patent itself, or challenging its enforce ability. Also termed presumption of validity. [Cases: Patents ''The patent statute is unambiguous: 'A patent shall be presumed valid .... The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.' A patent is born valid. It remains valid until a challenger proves it was stillborn or had birth defects, or is no longer Viable as an enforceable right." Roper Corp. v. Litton Sys., Inc., 757 F.2d 1266, 1270 (Fed. Or. 1985) (quoting 35 USCA 282). borough (b3r-d), n. 1. A town or township with a munic ipal charter, such as one of the five political divisions of New York City. [Cases: Municipal Corporations 2. English law. A chartered town that originally sent a member to Parliament. 3. Hist. A fortified or important town. -Also spelled burgh. borough court. English law. An inferior civil court of record, usu. preSided over by the municipal recorder. Most borough courts were abolished by Parliament in 1972. Cf. BOROUGH SESSIONS; RECORDER (1). borough English. Hist. A common-law rule of descent whereby the youngest son (or sometimes the youngest daughter or collateral heir) inherited all his father's lands . If the landowner had no issue, his youngest brother inherited the land. This practice applied to s

's lands . If the landowner had no issue, his youngest brother inherited the land. This practice applied to socage tenures in some parts of England. It was abol ished by statute in 1925. Also termed postremogen-bote iture; ultimogeniture. -Also termed burgh English; burgh Engloys. See PRIMOGENITURE. borough fund. English law. The revenue generated by a municipal borough. borough-holder. See BORSHOLDER. borough reeve. See REEVE. borough sessions. Criminal-court sessions held before a municipal recorder. Cf. BOROUGH COURTS; RECORDER (1). borrow, n. A frankpledge. Also spelled borgh; borh. See DECENARY; FRANKPLEDGE. borrow, vb. 1. To take something for temporary use. 2. To receive money with the understanding or agreement that it must be repaid, usu. with interest. See LOAN. [Cases: Contracts C=:c 194.] borrowed capital. Funds lent to a corporation or other entity to finance its operations, such as cash dividends that are declared by a corporation but temporarily retained (with stockholder approval) to provide operat ing funds. [Cases: Internal Revenue C=:c4133; Taxation C=:c2545.] borrowed employee. See EMPLOYEE. borrowed servant. See borrowed employee under EMPLOYEE. borrowed-statutes doctrine. The principle that if one state adopts a statute identical to that of another state, any settled judicial construction of that statute by the courts of the other state is binding on the courts of the state that later enacts the statute. [Cases; Courts 95(2); Statutes 0;::;226.J borrower. A person or entity to whom money or some thing else is lent. borrowhead. See BORSHOLDER. borrowing statute. (1934) A legislative exception to the conflict-of-Iaws rule holding that a forum state must apply its own statute of limitations . A borrowing statute specifies the circumstances in which a forum state will apply another state's statute oflimitations. [Cases; Limitation of Actions borsholder (bors-hohl-dar). Hist. 1. The chief of a tithing or frankpledge. 2. A petty constable. Also termed borough-holder; borrowhead; headborough. Boston interest. See INTEREST (3). bote (boht). [Anglo-Saxon] Hist. 1. A compensation or profit; esp., an allowance of wood; ESTOVERS (1). Also spelled bot; boot. brigbote. See BRIGBOTE. cartbote. See plowbote. firebote. See housebote. haybote. See HAYBOTE. hedgebote. See HAYBOTE. housebote. An allowance of wood from the estate used to repair a house or to burn in the fireplace. Also termed firebote. bote less plowbote. An allowance of wood for the construc- tion and repair of farm equipment. Also termed cartbote. wainbote. An allowance of wood for the repair of wagons. 2. A compensatory payment for causing an injury. Cf. BOTELESS. "Bot (relief, remedy, compensation) was set at a certain number of shillings in case of wounding, a higher number if the wound injured not only flesh but also bone; indemnity had to be higher if the bone was broken. And so it went with other injuries." Charles Herman Kinnane, A First Book on Anglo-American Law 215 (2d ed. 1952). Godbot~. A church fine paid for offenses against God. hadbote. Hist. Amends for an affront to or violence against a person in holy orders. -Also spelled had-bot. kinbote. See manbote. lowbote. See LOWBOTE. maegbote (mag-boht). Bote paid to the relatives of an injured person. manbote. Compensation for killing someone. -Also termed kinbote. theftbote (theft-boht). The acceptance of a payment from a thief in exchange i()r an agreement not to pros ecute; COMPOUNDING A CRIME. -The payment might be either a bribe or a return of the stolen goods them selves. This was a form of compounding a felony. "Another offence of this class is theftbote or composition with a thief by which the person robbed takes his goods again and by contract suppresses the robbery and defrauds justice. This crime is punishable by fine and imprisonment." 1 Sir Robert Chambers, A Course of Lectures on the English Law: 1767-/773448 (Thomas M. Curley ed., 1986). 3. A tenant's right to use as much wood from the estate as necessary for fuel, fences, and other agricultural operations. -Bote in this sense is an earlier form of estovers. 4. BRIGBOTE. boteless (boht-Ias), adj. Hist. 1. Of or relating to an offense that cannot be expiated or otherwise remedied by the payment of a fine, the offender being required to suffer loss ofliberty or life. _ Boteless offenses appeared in Anglo-Saxon Britain about A.D. 700. They appear to have involved treason or violence against the king. 2. Without relief or remedy; without the privilege of making satisfaction for a crime by pecuniary payment. The modern word bootless is derived from this term. Cf. BOTE (2). "In the laws of lne it appeared possible, in the discretion of the kind, to put certain offenders to death, rather than let them save themselves by paying a money fine. This involved a step in the modern direction, as far as criminal law is concerned. The 'boteless' offense, that is, the offense which can not be fully expiated by the payment of a money fine so that the gUilty person must suffer loss of liberty or life is so familiar to us that we take it as a matter of course; it seems, however, to have first appeared in Anglo-Saxon Britain about the year A.D. 700. In general, these 'bote less' offenses seem to have appeared in connection with matter that we would say now involved treason or Violence offered 210 to the king." Charles Herman Kinnane, A First Book on AngloAmerican Law 216-17 (2d ed. 1952). bothagium (bah-thay-jee-am). Hist. Customary dues paid to a lord for placing a booth in a fair or market. - Also termed bard-halfpenny; boothage. botHer of the kiug. Hist. An officer who provided the king's wines. -By virtue of office, the botiler could choose two casks from every wine-laden ship. The modern word butler is derived from botiler. bottomage bond. See bottomry bond under BOND (2). bottom-hole agreement. Oil & gas. A support agree ment in which the contributing party agrees to make a cash contribution to the drilling party in exchange for geological or drilling information if the well is drilled to the agreed depth. See SUPPORT AGREEMENT. [Cases: Mines and Minerals (;:~) 109.] . bottomland. (18c) Low-lying land, often located in a river's floodplain. bottomry. Maritime law. A contract by which a ship owner pledges the ship as security for a loan to finance a voyage (as to equip or repair the ship), the lender lOSing the money if the ship is lost during the voyage. -The term refers to the idea that the shipowner pledges the ship's bottom, or keel. Cf. RESPOKDEKTIA. [Cases: Shipping G~88.] bottomry bond. See BOND (2). bought and sold notes. Two memoranda prepared by a broker to record the sale of a note. -'The broker sends the bought note to the purchaser, and sends the sold note to the seller. bought note. See NOTE (1). boulevard rule. The principle that the driver of a vehicle approaching a highway from a smaller road must stop and yield the right-of-way to all highway traffic. [Cases: Automobiles c;:=.17l(5).] boulwarism. Labor law. A bargaining tactic in which an employer researches the probable outcome of col lective bargaining and uses the information to make a firm settlement ofter to a union on a take-it-or-Ieave-it basis, so that there is no real negotiation. _ Boulwar ism is now considered to be an unfair labor practice by the National Labor Relations Board. The practice takes its name from Lemuel Boulware, vice president for employee relations at General Electric Company, who used the technique during the mid-20th century. [Cases: Labor and Employment c;:=.1483(l).J bounced check. See bad check under CHECK. bound, adj. (lSc) 1. Constrained by a contractual or other obligation <they are bound to make the payments by the first of each month>. 2. (Of a court) constrained to follow a precedent <bound by a Supreme Court decision>. bound, n. (usu. pI.) (l3c) 1. BOUNDARY <metes and bounds>. 2. A limitation or restriction on action <within the bounds of the law>. 211 bound, vb. (14c) To delineate a property boundary <property bounded by the creek>. Cf. BIND. boundary. (l598) 1. A natural or artificial separation that delineates the confines of real property <the creek serves as a boundary between the two properties>. See METES AND BOUNDS. [Cases: Boundaries (;:::0 1-25.] "The object of all rules for the establishment of boundaries is to ascertain the actual location ofthe boundary as made at the time. The important and controlling consideration, where there is a conflict as to a boundary, is the parties' intention, whether express or shown by surrounding cir cumstances .... " 11 c.J.S. Boundaries 3 (1995). agreed boundary. A negotiated boundary by which adjacent landowners resolve uncertainties over the extent of their land. -Also termed boundary by agreement; boundary by acqUiescence. See DOCTRINE OF PRACTICAL LOCATION. [Cases: Boundaries (;:::046, 48.] land boundary. (l8c) The limit of a landholding, usu. described by linear measurements of the borders, by points of the compass, or by stationary markers. See FORTY; LEGAL DESCRIPTION. [Cases: Boundaries lost boundary. A boundary whose markers have decayed, changed, or been removed or displaced in such a manner that the boundary's correct location can no longer be determined with confidence. [Cases: Boundaries (;:::056.] natural boundary. Any nonartificial thing (such as a river or ocean) that forms a boundary of a nation, a political subdivision, or a piece of Also termed natural object. [Cases: Bounda ies private boundary. An artificial boundary marker. [Cases: Boundaries C=5.] public boundary. A natural formation that marks the beginning of a boundary line. -Also termed natural boundary. [Cases: Boundaries 2. Int'l law. A line marking the limit of the territorial jurisdiction of a state or other entity having an interna tional status. [Cases: International Law (;:::oS.] boundary by acquiescence. See agreed boundary under BOUNDARY. boundary by agreement. See agreed boundary under BOUNDARY. boundary traffic. The movement of persons or goods across an international boundary. bound bailiff. See BAILIFF. bounded tree. A tree that marks a corner of a property's boundary. bounder. A visible mark that indicates a territorial limit in a land survey. bounty. (13c) 1. A premium or benefit offered or given, esp. by a government, to induce someone to take action or perform a service <a bounty for the killing of dan gerous animals>. Cf. REWARD. 2. A gift, esp. in a will; generosity in giving <the court will distribute the testa tor's bounty equally>. 3. The portion of a salvage award boycott exceeding what the salvor would be entitled to on the basis of quantum meruit. -Also termed gratuity; bonus. bounty hunter. (1930) A person who for a fee pursues someone charged with or suspected of a crime; esp., a person hired by a bail-bond company to find and arrest a criminal defendant who has breached the bond agree ment by failing to appear in court as ordered. Also termed bail-enforcement agent. bounty land. See LAND. bounty-land warrant. Hist. A state-or federal-gov ernment-issued certificate affirming a veteran's eligi bility to apply for ownership of a certain amount of public land . A veteran had to apply for a bounty-land warrant; it was not automatically granted. When the application was approved, the veteran received notice that the warrant had been issued in the veteran's name and was on file in the General Land Office. The veteran could then sell or otherwise transfer the bounty-land warrant to anyone, even a nonveteran. The warrant holder acquired the right to redeem the warrant and apply for a land patent. The last statute authorizing the issue of bounty-land warrants was enacted in 1894, and the last warrants were issued in 1906. bourse (buurs). [French] French law. An exchange; a stock exchange. Also termed bourse de commerce. boutique (boo-teek). (1984) A small specialty business; esp., a small law firm specializing in one particular aspect oflaw practice <a tax boutique>. bovata terrae (boh-vay-ta ter-ee). [Law Latin] Hist.

<a tax boutique>. bovata terrae (boh-vay-ta ter-ee). [Law Latin] Hist. See OXGANG. bow-bearer. Hist. An officer responsible for apprehend ing trespassers and poachers in the king's forest. box, vb. Hist. Eng. & Scots law. To file a paper with a court oflaw. box day. Hist. Scots law. One of the vacation days formerly appointed for filing papers in the Court of Session. box-top license. See shrink-wrap license under LICENSE. boycott, n. (1880) 1. An action deSigned to achieve the social or economic isolation of an adversary . The term derives from Captain Charles C. Boycott, an English landowner in famine-plagued Ireland of the 1870s; because of his ruthless treatment ofIrish tenant farmers, the Irish Land League ostracized him. 2. A concerted refusal to do business with a party to express disapproval of that party's practices. 3. A refusal to deal in one transaction in an effort to obtain terms desired in a second transaction . Under the Sherman Antitrust Act, even peaceful persuasion of a person to refrain from dealing with another can amount to a boycott. See 15 USCA 1-7. Cf. PICKETING; STRIKE. boycott, vb. consumer boycott. (1941) A boycott by consumers of products or services to show displeasure with the manufacturer, seller, or provider. Boykin Act group boycott. Antitrust. 1. CONCERTED REFUSAL TO DEAL. 2. A type of secondary boycott by two or more competitors who refuse to do business with one firm unless it refrains from doing business with an actual or potential competitor of the boycotters. - A group boycott can violate the Sherman Act and is analyzed under either the per se rule or the rule of reason, depending on the nature of the boycott. See PER SE RULE; Rt:LE OF REASOK [Cases: Antitrust and Trade Regulation "Since early in this century, courts have interpreted Section 1 [of the Sherman Act] to limit the ability of competing firms to agree not to deal with or to isolate another firm. Unlike many-cartels, where all competitors voluntarily join to fix prices (and share monopoly rewards), concerted refusals to deal usually involve a subset of all market participants who band together to gain market power by destroying or coercing their rivals. Such organized refusals to deal with a particular firm are usually given the pejorative label of 'group boycotts." Ernest Gellhorn & William E. Kovacic, Antitrust Law and Economics in a Nutshell 204 (4th ed. 1994). primary boycott. (1903) A boycott by union members who stop dealing with a former employer. [Cases: Labor and Employment (;= 1393.] secondary boycott. (1903) A boycott of the customers or suppliers of a business so that they will withhold their patronage from that business. -For example, a group might boycott a manufacturer who advertises on a radio station that broadcasts messages consid ered objectionable by the group. [Cases: Labor and Employment 1412.] Boykin Act. Hist. Patents. A statute, passed after World War II, that extended the U.S. patenting deadlines for citizens of former enemy nations. - A similar measure, the Nolan Act, was passed after World War I. Boyle defense. See GOVERNMENT-CONTRACTOR DEFENSE. bp. Abbr. See BASIS POINT. B.R. abbr. 1. Bankruptcy Reporter. -Also abbreviated Bankr. Rep. 2. Bancus Regis [Latin "King's Bench"]. 3. Bancus Reginae [Latin "Queen's Bench"]. -This abbre viation has been replaced by the English initials of these courts, K.B. and Q.B. braccry. Hist. 1. The offense of selling pretended rights or title to land. _ This practice was outlawed by statute of 32 Hen. 8, ch. 9. 2. EMBRACERY. bracket creep. (1978) The process by which inflation or increased income pushes individuals into higher tax brackets. bracket system. Tax. A system for collecting a sales tax based on an index providing for a graduated payment depending on the purchase price of the item, the purpose being fourfold: (1) to avoid having the seller collect a tax less than one cent; (2) to avoid requiring the state to figure the exact amount of tax on each sale; (3) to allow the seller to have a ready means for fixing the tax to be collected; and (4) to allow the state to collect about the right amount of tax. -'Ihis system may be 212 prOVided for either by statute or by administrative reg ulation. [Cases: Taxation (:::::3707.] Bracton. The common title of one of the earliest books of English law, De Legibus et Consuetudinibus Angliae (ca. 1250). -Henry of Bratton (also known as Bracton), a judge of the Court of King's Bench and of Assize, is credited with writing the work, though he may have merely revised an earlier version. "Bracton's book is the crown and flower of English medieval jurisprudence .... Romanesque in form, English in sub stance ~ this perhaps is the best brief phrase that we can find for the outcome of his labours; but yet it is not very good. He had at his command and had diligently studied ... various parts of the Corpus luris Civilis, of the Decretum, and the Decretals, and he levied contributions from the canonist Tancred .... Bracton's debt and therefore our debt ~ to the civilians is inestimably great. But for them. his book would have been impossible; but for them ... we should have missed not only the splendid plan. the orderly arrangement, the keen dilemmas, but also the sacerdotal spirit of the work. On the other hand, the main matter of his treatise is genuine English law laboriously collected out of the plea rolls of the king's court .... [Hlis endeavor is to state the practice, the best and most approved practice, of the king's court, and of any desire to romanize the law we must absolutely acquit him." 1 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I 206-09 (2d ed. 1898). Brady Act. A federal law establishing a national system for quickly checking the background of a prospective handgun purchaser. -The formal name of the law is the Brady Handgun Violence Prevention Act. The U.S. Supreme Court held unconstitutional the law's interim provision, which required chief state law-enforcement officers (usu. sheriffs) to conduct background checks until the national system was in place. The act is named for James Brady, who, as a member of President Ronald Reagan's staff, was wounded by gunfire during an attempted presidential assassination in 1981. 18 USCA 921-930. -Also termed (informally) Brady Bill. Brady material. (1972) Criminal procedure. Information or evidence that is favorable to a criminal defendant's case and that the prosecution has a duty to disclose. _ lhe prosecution's withholding of such information violates the defendant's due-process rights. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). See excul patory evidence under EVIDENCE. Cf. JENCKS MATERIAL. [Cases: Constitutional Criminal Law(;= 1991.] Brady motion. A criminal defendant's request that a court order the prosecution to turn over evidence favorable to the defendant when the evidence is relevant to the defendant's guilt or punishment. Brady v. Maryland, 373 U.S . 83 S.Ct. 1194 (1963). See BRADY MATERIAL. [Cases: Criminal Law "~2006.] brain death. See DEATH. brake. See DUKE OF EXETERS DAUGHTER. branch. (Be) 1. An offshoot, lateral extension, or division of an institution <the executive, legislative, and judicial branches of government>. 2. A line of familial descent stemming from a common ancestor <the Taylor branch of the Bradshaw family>. Also termed stock. 3. A 213 license held by a ship's pilot. See branch pilot under PILOT. branch pilot. See PILOT. brand. Trademarks. A name or symbol used by a seller or manufacturer to identify goods or services and to dis tinguish them from competitors' goods or services; the term used colloquially in business and industry to refer to a corporate or product name, a business image, or a mark, regardless of whether it may legally qualify as a trademark. Branding is an ancient practice, evidenced by individual names and marks found on bricks, pots, etc. In the Middle Ages, guilds granted their members the right to use a guild-identifying symbol as a mark of quality and for legal protection. -Also termed brand name. Cf. TRADEMARK; TRADENAME. private brand. An identification mark placed on goods made by someone else under license or other arrange ment and marketed as one's own . The seller of pri vate-brand goods sponsors those goods in the market, becomes responsible for their quality, and has rights to prevent others from using the same mark. [Cases: Trademarks C=> 1202.] brand architecture. Trademarks. The strategic analysis and development of optimal relationships among the multiple levels of a company and its brands, products, features, technology, or ingredient names. [Cases: Trademarks C=> 1060.] Brandeis brief (bran-dIs). (1930) A brief, usu. an appel late brief, that makes use of social and economic studies in addition to legal principles and citations . The brief is named after Supreme Court Justice Louis D. Brandeis, who as an advocate filed the most famous such brief in Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324 (1908), in which he persuaded the Court to uphold a statute setting a maximum ten-hour workday for women. Brandeis rules. See ASHWANDER RULES. branding. 1. The act of marking cattle with a hot iron . to identify their owner. [Cases: Animals 2. Formerly, the punishment of marking an offender with a hot iron. brand name. 1. See BRAND. 2. See TRADENAME. branks (brangks). Hist. An instrument used to punish scolds, consisting of an iron framework that sur rounded the head and entered the mouth to keep the offender's tongue depressed. -Also termed scolding bridle. See SCOLD. Cf. CASTIGATORY. brassage (bras-ij). Hist. A government charge for the actual cost of coining metals . Any profit is termed seigniorage. See SEIGNIORAGE (2). brawl, n. 1. A noisy quarrel or fight. 2. The offense of engaging in such a quarrel or fight . In most jurisdiC tions, the offense is a statutory civil misdemeanor. 3. Hist. Eccles. law. The offense of disturbing the peace of a consecrated building or area; specif., a disturbance, such as arguing, within the churchyard or church . Until 1860, offenders faced trial in ecclesiastical courts. -Also termed brawling. -brawl, vb. breach of contract breach, n. (15c) A violation or infraction of a law or obligation <breach of warranty> <breach of duty>. - breach, vb. breach of arrest. A military offense committed by an officer who, being under arrest in quarters, leaves those quarters without a superior officer's authorization. See arrest in quarters under ARREST. breach of close. (I8c) The unlawful or unauthorized entry on another person's land; a common-law trespass. - Also termed breaking a close. See CLOSE (1). [Cases: Trespass 10.] breach of contract. (17c) Violation of a contractual obligation by failing to perform one's own promise, by repudiating it, or by interfering with another party's performance. [Cases: Contracts C=>312, 315.] "A breach may be one by non'performance, or by repu diation, or by both. Every breach gives rise to a claim for damages, and may give rise to other remedies. Even if the injured party sustains no pecuniary loss or is unable to show such loss with sufficient certainty, he has at least a claim for nominal damages. If a court chooses to ignore a trifling departure, there is no breach and no claim arises." Restatement(Second) of Contracts 236 cmt. a (1979). active breach of contract. Civil law. The negligent per formance of a contractual obligation, to the point of acting outside the contract's terms . Under Loui siana law before 1984, active breach of contract was contrasted with passive breach of contract, which was a failure to perform the obligations created by the contract. Unlike a passive breach, an active breach of contract could give rise to a claim in contract and in tort. The distinction was abolished in 1984. Cf. passive breach of contract. Contracts C=>312.] anticipatory breach. (1889) A breach of contract caused by a party's anticipatory repudiation, i.e., unequivo cally indicating that the party will not perform when performance is due . Under these circumstances, the nonbreaching party may elect to treat the repudiation

will not perform when performance is due . Under these circumstances, the nonbreaching party may elect to treat the repudiation as an immediate breach and sue for damages. Also termed breach by anticipatory repudiation; construc tive breach. See anticipatory repudiation under REPU DIATION. [Cases: Contracts C=>313.J "A repudiation by one party may occur before the time for performance has arrived. Such a repudiation is called an anticipatory breach, and it gives the innocent party the option of treating the contract as terminated at once and suing for damages immediately if he chooses or, alterna tively, of waiting until the time of performance has arrived, and then again calling on the other party to perform. Should he choose the latter course he runs the risk that the contract may possibly become frustrated in the interim, in which case he will have lost his right to damages." P.S. Atiyah, An Introduction to the Law of Contract 298 (3d ed. 1981). constructive breach. See anticipatory breach. continuing breach. (18I7) A breach of contract that endures for a considerable time or is repeated at short intervals. efficient breach. (l977) An intentional breach of contract and payment of damages by a party who breach of covenant would incur greater economic loss by performing under the contract. See EFFICIENT-BREACH THEORY. immediate breach. (I820) A breach that entitles the nonbreaching party to sue for damages immedi ately. material breach. (1840) A breach of contract that is significant enough to permit the aggrieved party to elect to treat the breach as total (rather than partial), thus excusing that party from further performance and affording it the right to sue for damages. [Cases: Contracts <::=0317,318.] "In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing." Restatement (Second) of Contracts 241 (1979). partial breach. (I8c) A breach of contract that is less significant than a material breach and that gives the aggrieved party a right to damages, but does not excuse that party from performance; speci., a breach for which the injured party may substitute the remedial rights provided by law for only part of the existing contract rights. [Cases: Contracts <::=0319.] passive breach of contract. Civil law. A failure to perform the requirements of a contract. Under Louisiana law up to 1984, passive breach of contract was contrasted with active breach of contract, which was negligence in performing a contractual obliga tion. While an active breach of contract could give rise to claims in contract and in tort, a passive breach of contract usu. did not give rise to a tort claim. Cf. active breach of contract. [Cases: Contracts <::=0315.] total breach. (I8c) A breach of contract for which the remedial rights provided by law are substituted for all the existing contractual rights, or can be so sub stituted by the injured party; esp., a material breach that gives rise to a claim for damages based on the aggrieved party's remaining rights to performance under the contract. [Cases: Contracts <::=0317.] breach of covenant. (16c) The violation of an express or implied promise, usu. in a contract, either to do or not to do an act. See COVENANT. [Cases: Contracts <::=0 312.] breach of duty. (16c) The violation of a legal or moral obligation; the failure to act as the law obligates one to act; esp., a fiduciary's violation of an obligation owed to another. See NEGLIGENCE. [Cases: Negligence <::=0 250.] breach ofloyalty. An act that is detrimental to the inter ests of someone to whom a fiduciary duty is owed; esp., 214 an act that furthers the actor's own interests or those of a competitor of the beneficiary. breach of peace. See BREACH OF THE PEACE. breach of prison. See PRISON BREACH. breach of promise. The violation of one's word or under taking, esp. a promise to marry . Under English common law, an engagement to marry had the nature of a commercial contract, so if one party broke the engagement without justification, the innocent party was entitled to damages. See HEARTBALM STATUTE. [Cases: Breach of Marriage Promise <::=0 1-36.] breach of the peace. (16c) The criminal offense of creating a public disturbance or engaging in disorderly conduct, particularly by making an unnecessary or distracting noise. -Also termed breach of peace; disturbing the peace; disturbance of the peace; public disturbance. See disorderly conduct under CONDUCT. [Cases: Breach of the Peace <::=0 1; Disorderly Conduct <::=0 104-140.] "A breach of the peace takes place when either an assault is committed on an individual or public alarm and excitement is caused. Mere annoyance or insult is not enough: thus at common law a householder could not give a man into custody for violently and persistently ringing his doorbell. It is the particular duty of a magistrate or police officer to preserve the peace unbroken; hence if he has reasonable cause to believe that a breach of the peace is imminent he may be justified in committing an assault or effecting an arrest." R.F.V. Heuston, Salmond on the Law of Torts 131 (17th ed. 1977). "The beginning of our criminal justice ... was concerned very largely with the problem of keeping the peace. Because of this fact all early indictments included some such phrase as 'against the peace of the King'; and until recently statu tory provisions for simplification, indictments in this country were thought to be incomplete without some such conclusion as 'against the peace and dignity of the state.' As a result ofthis history all indictable offenses are some times regarded as deeds which violate the public peace, and hence in a loose sense the term 'breach of the peace' is regarded as a synonym for crime." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 477 (3d ed. 1982). breach of trust. (l7c) 1. A trustee's violation of either the trust's terms or the trustee's general fiduciary obliga tions; the violation of a duty that equity imposes on a trustee, whether the violation was willful, fraudulent, negligent, or inadvertent. A breach of trust subjects the trustee to removal and creates personal liability. 2. See MALADMINISTRATION. breach of warranty. (18c) 1. A breach of an express or implied warranty relating to the title, quality, content, or condition of goods sold. UCC 2-312. [Cases: Sales <::=0284.] 2. Insurance. A breach of the insured's pledge or stipulation that the facts relating to the insured person, thing, or risk are as stated. See WARRANTY (3). bread acts. Hist. Laws providing for the sustenance of persons kept in prison for debt . These laws were formerly on the books in both England and the United States. bread-and-cheese ordeal. See ordeal of the morsel under ORDEAL. 215 breadth of a claim. Patents. The scope or extent to which a patent claim excludes others from infringing activity. break, vb. (bef. 12c) 1. To violate or disobey (a law) <to break the law>. 2. To nullify (a will) by court proceed ing <Samson, the disinherited son, successfully broke the will>. 3. To escape from (a place of confinement) without permission <break out of prison>. 4. To open (a door, gate, etc.) and step through illegally <break the close>. breakage. (1848) 1. An allowance given by a manufac turer to a buyer for goods damaged during transit or storage. 2. Insignificant amounts of money retained by racetrack promoters from bets . The retention of these small sums avoids the inconvenience of counting and paying out inconsequential winnings. [Cases: Gaming ~5.] break a house. To violently and feloniously remove or sever any part of a house or its locks. breakdown of the marriage. See IRRETRIEVABLE BREAK DOWN OF THE MARRIAGE. breaking, n. Criminal law. (l7c) In the law of burglary, the act of entering a building without permission . It does not require damage to the property. [Cases: Burglary ~9(l).] "[Tlo constitute a breaking at common law, there had to be the creation of a breach or opening; a mere trespass at law was insufficient. If the occupant of the dwelling had created the opening, it was felt that he had not entitled himself to the protection of the law, as he had not properly secured his dwelling .... In the modern American criminal codes, only seldom is there a requirement of a breaking. This is not to suggest, however, that elimination of this requirement has left the 'entry' element unadorned, so that any type of entry will suffice. Rather, at least some of what was encompassed within the common law 'breaking' element is reflected by other terms describing what kind of entry is necessary. The most common statutory term is 'unlawfully.' but some jurisdictions use other language, such as 'unauthorized.' by 'trespass.' 'without authority.' 'without consent.' or 'without privilege.'" Wayne R. LaFave & Austin W. Scott Jr., Criminal Law 8.13, at 793-94 (2d ed. 1986). breaking a case. (1950) 1. The voicing by one appellate judge to another judge on the same panel of a tenta tive view on how a case should be decided . These informal expressions assist the judges in ascertaining how close they are to agreement. 2. The solving of a case by the police. breaking a close. See BREACH OF CLOSE. breaking and entering. See BURGLARY (2). breaking a patent. The act of demonstrating that a patent is invalid or unenforceable because it was used unlaw fully by the patentee (esp. in violation of antitrust laws), or improperly issued by the U.S. Patent and Trademark Office because of fraud, the existence of prior art, or any other barrier to proper issuance . Defendants in pat ent-infringement actions may overcome the infringe ment allegations by showing that the patent should not have been allowed in the first place (so it is invalid), or B reorganization that the patentee has misused the patent (so the patent is unenforceable). [Cases: Patents ~97.] breaking bulk, n. (l8c) 1. The act of dividing a large shipment into smaller units. 2. Larceny by a bailee, esp. a carrier, who opens containers, removes items from them, and converts the items to personal use. -Also termed breaking bale. [Cases: Larceny ~ 15.] -break bulk, vb. breaking-bulk doctrine. Hist. The rule that a bailee who had lawful possession of property delivered in bulk and wrongfully took the property committed larceny only if the bailee broke the container open and took part or all of the contents . If the bailee wrongfully took the property without opening the container, the act was theft but not larceny. -Also termed breaking-bale doctrine. breaking of entail. See BARRING OF ENTAIL. break-up fee. See TERMINATION FEE. breast of the court. A judge's conscience, mind, or dis cretion . This phrase is a loan translation (or calque) of the Latin phrase in pectore judicis. See IN PECTORE JUDICIS. Breathalyzer. (1960) A device used to measure a person's blood alcohol content from a sample of the person's breath, esp. when the police suspect that the person was driving while intoxicated . The term is a trade marked name. Breathalyzer test results are admissible as evidence if the test was properly administered. - Also termed alcoholometer; drunkometer; intoxilyzer; intoximeter. See BLOOD ALCOHOL CONTENT. [Cases: Automobiles ~411.] -breathalyze, vb. breathing room. (1967) Slang. The postbankruptcy period during which a debtor may formulate a debt repayment plan without harassment or interference by creditors. [Cases: Bankruptcy~2391, 3533.] bredwite (bred-w;lt). Hist. A penalty for not complying with regulations relating to the weight or quantity of bread. brehon (bree-h;ln). Hist. In Ireland, a judge. Brehon law (bree-h;ln law). Hist. The ancient system of law in Ireland at the time of its conquest by Henry II. This law was formally abolished in 1366. -Sometimes spelled Brehon Law. "[TJhe Irish were governed by what they called the Brehon law, so stiled from the Irish name of judges, who were denominated Brehons. But king John in the twelfth year