Black Law Dictionary
PARALYZED YETERANS DF AMERICA, WRG
BLACK ‘S
LAW DICTIONARY
Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern
By
HENRY CAMPBELL BLACK, M. A.
Author of Treatises on Judgments, Tax Titles, Intoxicating Liquors, Bankruptcy, Mortgages, Constitutional Law, Interpretation of Laws, Rescission and Cancellation of Contracts, Etc.
REVISED FOURTH EDITION
BY
THE PUBLISHER’S EDITORIAL STAFF
ST. PAUL, MINN.
WEST PUBLISHING CO.
1968
COPYRIGHT © 1891, 1910, 1933, 1951, 1957 WEST PUBLISHING COMPANY
COPYRIGHT <Oj 1968
By
WEST PUBLISHING CO.
PREFACE
REVISED FOURTH EDITION
THE sustained and growing popularity of BLACK’S LAW DICTION-ARY since its appearance more than seventy five years ago is a strik-itig tribute to the scholarship and learning of Henry Campbell Black, and to the essential soundness of the plan adopted by him for the compilation of a legal lexicon.
In accordance with the original plan of this work, consistently adhered to in all subsequent editions, the law student, confronted in his casebooks with reports from the Year Books, or with extracts from Glanvil, Bracton, Littleton, or Coke, will find in this dictionary an unusually complete collection of definitions of terms used in old English, European, and feudal law. The student vill also find in this volume, on page 1795, a useful Table of British Regnal Years, listing the sovereigns of England for more than 900 years, together with the date of accession to the throne, and the length of reign.
BLACK’S LAW DICTIONARY has proven its value through the years to the busy practitioner, judge and law student who requires quick and convenient access to the meanings of legal terms and phras-es found in statutes or judicial opinions, as well as to the special legal meanings of standard En glish words—meanings which frequently can-not be found in the ordinary English language dictionaries.
In the period of more than thirty five years since the publication of the Third Edition, the law has undergone substantial changes and developments. The vocabulary of the law has shown corresponding change and growth. A word, in the often quoted dictum of Mr. Justice Holmes, is "the skin of a living thought," and the words of statutes and judicial opinions reflect the contemporary thinking of legislators and jurists. In order adequately to represent this thinking in the fourth edition, a patient examination vías made of the thousands of opinions hánded down by the appellate courts each year. Some revi-sions and additions have been included in this Revised Fourth
tion.
Abbreviations of common words and phrases likely to be en-countered by the user are explained in appropriate places throughout the main body of the work. A Table of. Abbreviations of the titles of law reports, textbooks, and other legal literature is contained in the back of the volume and a Guide to Pronunciation is included in the front of the volume.
New features in this Revised Fourth Edition include the follow-
ing:
Code of Professional Responsibility
Code of Judicial Conduct
An Outline of the Minimum Requirements for Admission to Legal Practice in the United States
PREFACE—REVISED FOURTH EDITION
In order that BLACK’S LAW DICTIONARY should continue to be a handy one-volume work of ready reference, the enlarged contents of the Fourth Edition necessitated an improved typographical style. The type for the Fourth Edition was accordingly completely reset and arranged in wider columns, in a more attractive and readable manner.
The Publisher has drawn freely on its wide experience to make the present edition of BLACK’S LAW DICTIONARY superior to any of the earlier editions. It is confidently believed that this edition, both in content and format, sets new standards of excellence among law dictionaries.
THE PUBLISHER
ST. PAUL, MINN. June, 1968
CONTENTS
Preface—Revised Fourth Edition
Front Matter
Guide to Pronunciation vii
Code of Professional Responsibility >un
Code of Judicial Conduct LXIX
Minimum Requirements for Admission to Legal Practice
in the United States – – – – – – – – – – – – – – – – – -LXXVII
Text of Definitions – – – – – – – – – – – – – – – – – -1
Back Matter
Table of British Regnal Years – – – – – – – -1795
Abbreviations – – – – – – – – – – – – – – – – – – – – – – – – – 1797
•
Page HI
Ellack’s Law
GUIDE TO PRONUNCIATION
A NOTE ON PRONUNCIATION OF LATIN
One of the difficulties in pronouncing legal terms is that one com-monly hears both the English system and the Roman system of pro-nouncing Latin words. Before 1900, the English pronunciation of Latin had developed for legal, médical, and other scientific terms. During the second half of the nineteenth century, scholars estab-lished that what is now known as the Roman pronunciation was used between 50 B.C. and 50 A.D. Nearly all schools in English-speaking countries adopted the Roman system of pronunciation. But by and large, the English pronunciation has persisted among lawyers, physi-cians, and scientists.
The main difference between the Roman and the English pro-nunciation of Latin is in the long sounds of a, e, and i. In English these sounds are á, é, and 1; in Roman, a is á; e is á; and i is é.
The dominant usage among lawyers today is probably the English pronunciation, but the Roman system taught in the schools still has its influence. Lawyers who studied Latin in school often tend toward the Roman, and others often tend toward the English. Yet ncarly all use both systems, or variations from both systems, to some extent.
For instante, many lawyers use the English pronunciation,
réz but many lawyers prefer to say ráz joTAII-ká’ta—which is neither English nor Roman but a mixture. The Roman rás
is seldom if ever heard. Probably all lawyers use the English há’be-As córipils or há’béz cór’püs; a lawyer who tries to get his client out of jail by asking for a writ of há’bá-ás cór’pús might not be understood. Yet the prevailing practice is probably to use the
Roman a-mé’cils cil’ré-1, and not the English cli’ri-é. One usually hears the mixture, si’né quá nón; one seldom if ever hears the English sine quá nón.
The following list is devoted mostly but not altogether to Latin words. For those words the English pronunciation is always in first place, followed by the Roman or a variation of the Roman when-ever it is known to be widely used. The English pronunciation is never incorrect in the view of lexicographers, although local or gen-eral usage may often cause some lawyers to prefer a pronunciation other than the English. As the study of Latin in the schools declines still further, the English pronunciation is likely to continue to increase.
fi a uniform systern is ever achieved, it is much more likely tobe the English than the Roman.
GUIDE TO PRONUNCIATION
KEY TO PRONUNCIATION
Máke; cháotic;• cáre; cát; árt; ácross; éat; evade; ébb; runnér; ice; hit; óak; óbey; órder; hót; fcDd; folt; finit; únite; úrge; N (French nasal, as in ensemble, áN sáN/b1).
KEY TO PRONUNCIATION
Máke; cháotic;• cáre; cát; árt; ácross; éat; evade; ébb; runnér; ice; hit; óak; óbey; órder; hót; fcDd; folt; finit; únite; úrge; N (French nasal, as in ensemble, áN sáN/b1).
a fortiori —————————— á fór’shi-ó’ri
a mensa et thoro———————– á mén’sá ét thó’ró
a priori á ——————————pri-Wri; pri-ó’ri; pri–(Yre
ab inconvenienti—————————— áb
ab initio ——————————áb in-ish’i-ó
actio in rem—————————— ák’sh1-5 in rém
ad idem ——————————ád i’dém
affiant—————————— á-fi’ánt
agister ——————————á-jís’tér
aleatory—————————— -tér-i
aliquot—————————— ál’i-kwót ambulatory
amicus curiae ——————————á-mrkils á-mé’cús kCeré-i
animo revertendi—————————— án’i-m5 rév’ér-tén’di
animo testamenti—————————— án’i-mó téslá-mén’ti
appellant—————————— á-pél’ánt
appellate—————————— á-pél’át
appellee
assignee—————————— ás’i-né’
autre vie, pur—————————— pdór üt’ré vé
bona fides—————————— bó’ná fi’déz
bona vacantia—————————— bó’ná vá-kán’shf-á
tapias ——————————ká’pl-ás; káp’i-ás
casus bell——————————i ká’sús bel
casus foederis—————————— ká’sús féd’ér-is
casus fortuitus—————————— ká’sús
casus omissus—————————— ká’sús
causa causans———————— kó’zá kó’zánz; kou’zá kou’zánz
causa monis ——————————kó’zá mór’tis; kou’zá mór’tis
causa sine qua nen——————– kó’zá si’né kwá nón’; kou’zá sI’né kwá /Va,
caveat emptor ——————————ká’vé-át émp’tór; ká’vé-át
certiorari ——————————súr’shi-ó-rár’i; -rá-ré
cestui que trust ——————————set’ ká trúst
chose—————————— shóz
consortium—————————— kón-sór’shi-tim
contra bonos mores—————————— kén’trá bi5’nés miVréz
coral)] nobis—————————— ké’rám nro’blis
corpus delicti—————————— kór’püs de-nklj
corpus juris—————————— kór’püs jtió’rls
curtesy—————————— kür’té-si
cy-pres—————————— sé’ prá’
damnum absque injuria—————————— dám’nüm ábs’kwé
de bene esse—————————— dé bé’né és’é
de facto—————————— dé fák’tó
de jure—————————— dé jcTiVré
de novo—————————— dé n¿i’vc3
del cred ere—————————— dél kréd’ér-é; kré’dér-é
delegatus non potest——————— dél kréd’ér-é; kré’dér-é
delegare—————————— déré-gá’tils nón pó’tést déré-gá’ré
demesne—————————— dé-mán’; -mén’
demur—————————— dé-mar’
demurrer—————————— dé-mar’
descriptio personas—————————— dé-skrip’shI-15 pér-sClné
detinue—————————— dét’i-nü
devise—————————— dé-viz
devisee—————————— dévl-zé’;
domicile—————————— dórn’i-sil
dominium
donatio mortis causa—————————— kófrzá; kou’zá
duces tecum—————————— diTsés té’küm
ejusdem generis—————————— é-jils’dém jén’ér-Ts
eleemosynary—————————— éré-mlisrf-nérl; él’é-é;
en ventre sa mere—————————— áN váN’tr’ sá’ mar’
enfeoff—————————— én-féf’; én-féf’
ex gratia—————————— éks grá’shi-á
ex parte—————————— éks párlé
ex post facto—————————— éks piist fák’tó
exequatur—————————— ék’sé-kwá’tér
expressio unius est—————————— éks-présh’i-5 ést éks-klaVzhi-5
exclusio alterius—————————— á1-té’ri-üs
facias—————————— fá’shi-ás
(scire facias)—————————— si’ré f á/sil-ás
(fieri facias)—————————— fi’e-r1 fáishi-ás
falsa demonstratio————————fál’sá dém’ón-stra’slii-5
feme covert—————————— fém küv’ért
feme solo—————————— fém 951
ferae naturae——————————fé’ré ná-ta’ré
force majeure——————————fórs’ má’zhür’
forma pauperis, in——————————in fór’má pó’pé-ris
functus officio——————————fúngklüs ó-fIsh’I-6
gratis——————————grális; grális
gravamen——————————grá-vá’mén
habeas corpus——————————há’bé-ás kór’pús; há’béz
ignorantia juris——————————ig’nó-rán’shi-á jc.Tó’rís
imperium
imprimatur——————————im’pri-málér; -pri-
in esse——————————in és’é
in extremis——————————in éks-tré’mfs
in fieri——————————in fl’é-ri
in futuro——————————in fti-tel’ró
in limine——————————in lim’i-né
in loco parentis——————————in 1ó’k45 pá-rén’tis
in pais——————————In pá
in parí delicto——————————in pá’ri dé-lic’tó; párri
in parí materia——————————In pá’ri má-té’rf-á; pá’ri
in personam——————————in pér-só’nám
in praesenti——————————in pré-zén’ti
in re——————————in re
in rem——————————in rém
in toto——————————in tó’tó
in transitu——————————in trán’sí-tú
indebitatus assumpsit——————————in-débltáltis;
á-sümp’sit; á-súm’sit
indicia——————————in-dish’í-á
indictment inter partes inter se——————————in-dish’í-á
inter vivos intra vires jura in re jus——————————in-
taches——————————lés-é’
lex domieilii——————————léks
lex forl—————————-léks fó’rl
lex bel—————————-léks ló’si
lex sitos—————————-léks
lien—————————-lé’én; lén
locus standi—————————-lé’én; lén
mala fides—————————-ló’küs stán’di
mandamus—————————-málá fi’déz; má’lá
mare clausum—————————-mán-dá’müs
mare liberum—————————-má’ré kló’süm; má’rl klou’zibn
mens rea—————————-má’ré
mesne—————————-ménz ré-á
mutatis mutandis—————————-mén; mán
ne exeat republica—————————-mó-tális mtl-tán’dIs
nihil est—————————-né ék’sé-át
nisi prius—————————-nihil ést
nolle prosequi—————————-ni’si pri’üs
non est facturo—————————-nól’é prós’é-kwi; prós’é-kwi
non obstante veredicto—————————-nón ést
non sequitur—————————-nón sék’wi-tér
nudum pactum—————————-nü’düm pák’tüm
nulla bona—————————-nül’á bó’ná
nunc pro tune—————————-nüngk’ pró’ tüngk’
obiter dictum—————————-ób’i-tér dik’tüm; (5b1-ter
obligatio—————————-
obligee—————————-ób’li-jé’
obligor—————————-ób’li-gór’;
onus probandi—————————-ó’nüs pró-bán’di
parens patriac—————————-pá’rénz pá’tri-é; pá’rénz pát’ré-I
parí delicto—————————-pá’ri pá’rI
parí passu—————————-pá’ri pásTi; pár’i pás’o—ó
particeps eriminis—————————-párli-séps krim’I-nls
pendente lite—————————-pén-dén’té
persona non grata—————————-pér-só’ná nón grá’tá
plene administravit—————————-plé’né ád-min’I-strá’vIt
poenitentiae, locus—————————-ló’küs pén’i-tén’shi-é; -shé-i
postea—————————-póst’é-á
praecipe—————————-prés’i-pé; pré’si-pé
prima facie—————————-pri’má fá’shI-é; fá’shé
profit a prendre—————————-próf’it á práN’dr
pro rata—————————-pró rálá; rá’tá
publici juris—————————-püb’li si jUó’ris
qua—————————-kwá; kwá
quaero—————————-kwé’ré
res •———————–réz; ráz
res gestae—————————réz jés’té; ráz jésli
res inter alios acta—————————réz in’tér ági-ós ák’tá
res ipsa loquitur—————————réz ip’sá lók’wi-tér; ráz
res judicata—————————réz jffdi-kálá; ráz jóTídi-kálá
restitutio in integrum—————————résiti-tü’shi-ó In in’té-gran
sans recours—————————SáN ré-koor’
scienter—————————si-én’tér
secos—————————
semble—————————sém’b’l
seriatim—————————sérl-á’ffin; sér’I-
sine die—————————si’ne dré
sine qua non—————————si’né quá nón; si’né quá nón
solatium—————————
stare decisis—————————stá’ré dé-si’sis; stá’ré
status quo—————————stálüs kwó
sub judice—————————süb
subpocna—————————süb-pé’ná; sú-pé’ná
subpocna duces tecum—————————süb-pé’ná; sú-pé’ná; dü’sés té’ktim
suggestio falsi—————————süg-jés’ehl-ó fál’si
sui generis—————————sü’i jén’ér-is
sui juris—————————sú’i jcTó’ris
supersedeas—————————sti-pér-sé’dé-ás
suppressio verá—————————sü-présh’I-5 vé’ri
tabula rasa—————————táb/1-1á rá’sá
ubi jus, ibi remed:um—————————ü’bi jús, i’bi
ultra vires—————————ürtrá vi’réz
uxor—————————üks’ór
venus—————————vén’ü
vis major—————————vis málór
volenti non fit injuria—————————vó-lén’ti nón fit in-jcTó’ri-á
CODE OF PROFESSIONAL RESPONSIBILITY
Table of Contents
Pape
PREAMBLE AND PRELIMINARY STATEMENT …………………..XVII
CANON 1. A LAWYER SHOULD ASSIST IN MAINTAINING THE INTEGRITY AND COMPETENCE OF THE LEGAL PRO-
FESSION ………..XIX
Ethical Considerations ………..XIX
Disciplinary Rules …………XX
DR 1-101 Maintaining Integrity and Competence of the Legal
Profession ………….XX
DR 1-102 Misconduct ………….XX
DR 1-103 Disclosure of Information to Authorities ……….XXI
CANON 2. A LAWYER SHOULD ASSIST THE LEGAL PROFESSION IN FULFILLING ITS DUTY TO MAKE LEGAL COUNSEL
AVAILABLE ………..XXI
Ethical Considerations ………..XXI
Recognition of Legal Problems ………..XXI
Selection of a Lawyer: Generally XXIII
Selection of a Lawyer: Professional Notices and Listings . XXIII
Financial Ability to Employ Counsel: Generally ………XXV Financial Ability to Employ Counsel:
Persons Able to Pay Reasonable Fees XXV Financial Ability to Employ Counsel:
Persons Unable to Pay Reasonable Fees XXVII
Acceptance and Retention of Employment ………………………… XXVIII
Disciplinary Rules ……..XXIX
DR 2-101 Publicity in General ……..XXIX DR 2-102 Professional Notices, Letterheads, Offices, and Law
Lists ……..XXIX
DR 2-103 Recommendation of Professional Employment XXXII
DR 2-104 Suggestlon of Need of Legal Services …………. XXXIII
DR 2-105 Limitation of Practice ……………………………………… XXXIII
DR 2-106 Fees for Legal Services XXXIV
DR 2-107 Division of Fees Among Lawyers XXXIV
DR 2-108 Agreements Restricting the Practice of a Lawyer XXXV
DR 2-109 Acceptance of Employment XXXV
DR 2-110 Withdrawal from Employment XXXV
CANON 3. A LAWYER SHOULD ASSIST IN PREVENTING THE
UNAUTHORIZED PRACTICE OF LAW ……………… XXXVI
Ethical Considerations ………………………………………………………………… XXXVI
Disciplinary Rules XXXVIII
DR 3-101 Aiding Unauthorized Practice of Law ………. XXXVIII
DR 3-102 Dividing Legal Fees with a Non-Lawyer ………. XXXVIII
DR 3-103 Forming a Partnership with a Non-Lawyer …. XXXVIII
* Adopted by the American Bar Association at annual meeting in Dallas, Texas, on Aug. 12, 1969. Copyrighted by American Bar Association. Published with permission.
Ellack’s Law Dictionary 4th Ed. Rey. XIII
CANON 4. A LAWYER SHOULD PRESERVE THE CONFIDENCES
AND SECRETS OF A CLIENT XXXVIII
Ethical Considerations …………………………………………………………………… XXXVIII
Disciplinary Rules XXXIX
DR 4-101 Preservation of Confidentes and Secrets of a
Client ………………………………………………………………… XXXIX
CANON 5. A LAWYER SHOULD EXERCISE INDEPENDENT PRO-FESSIONAL JUDGMENT ON BEHALF OF A CLIENT XLI
Ethical Considerations …………………….XLI
Interests of a Lawyer That May Affect His Judgment …………XLI
Interests of Multiple Clients …………………XLIII
Desires of Third Persons ………..XLV
Disciplinary Rules ………………….XLVI
DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional
Judgment ………………….XLVI DR 5-102 Withdrawal as Counsel When the Lawyer Becomes
a Witness ………………….XLVI
DR 5-103 Avoiding Acquisition of Interest in Litigation . XLVI
DR 5-104 Limiting Business Relations with a Client …. XLVII
DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Inde-
pendent Professional Judgment of the Lawyer .. XLVII
DR 5-10(3 Settling Similar Claims of Clients ………………..XLVII
DR 5-107 Avoiding Influence by Others Than the Client XLVII
CANON 6. A LAWYER SHOULD REPRESENT A CLIENT COM-
PETENTLY ………………………………………………………………… XLVIII
Ethical Considerations ………………………………………………………………….. XLVIII
Disciplinary Rules ………………….XLIX
DR 6-101 Failing to Act Competently ……….XLIX
DR 6-102 Limiting Liability to Client ……….XLIX
CANON 7. A LAWYER SHOULD REPRESENT A CLIENT ZEALOUS-
LY WITHIN THE BOUNDS OF THE LAW ………… XLIX
Ethical Considerations ………XLIX
Duty of the Lawyer to a Client ……………………….L I
Duty of the Lawyer to the Adversary System of Justice LIV
Disciplinary Rules ………LVIII
DR 7-101 Representing a Client Zealously ……….LVIII
DR 7-102 Representing a Client within the Bounds of the Law LVIII DR 7-103 Performing the Duty of Public Prosecutor or Other
Government Lawyer …………………….LIX
DR 7-104 Communicating with One of Adverse Interest LIX
DR 7-105 Threatening Criminal Prosecution …………………….LIX
DR 7-106 Trial Conduct …………………….LIX
DR 7-107 Trial Publicity ………………………LX
DR 7-108 Communication with or Investigation of Jurors LXII
DR 7-109 Contact with Witnesses …………LXII
DR 7-110 Contact with Off icials …………………..LXII
CANON 4. A LAWYER SHOULD PRESERVE THE CONFIDENCES
AND SECRETS OF A CLIENT XXXVIII
Ethical Considerations …………………………………………………………………… XXXVIII
Disciplinary Rules XXXIX
DR 4-101 Preservation of Confidentes and Secrets of a
Client ………………………………………………………………… XXXIX
CANON 5. A LAWYER SHOULD EXERCISE INDEPENDENT PRO-FESSIONAL JUDGMENT ON BEHALF OF A CLIENT XLI
Ethical Considerations …………………….XLI
Interests of a Lawyer That May Affect His Judgment …………XLI
Interests of Multiple Clients …………………XLIII
Desires of Third Persons ………..XLV
Disciplinary Rules ………………….XLVI
DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional
Judgment ………………….XLVI DR 5-102 Withdrawal as Counsel When the Lawyer Becomes
a Witness ………………….XLVI
DR 5-103 Avoiding Acquisition of Interest in Litigation . XLVI
DR 5-104 Limiting Business Relations with a Client …. XLVII
DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Inde-
pendent Professional Judgment of the Lawyer .. XLVII
DR 5-10(3 Settling Similar Claims of Clients ………………..XLVII
DR 5-107 Avoiding Influence by Others Than the Client XLVII
CANON 6. A LAWYER SHOULD REPRESENT A CLIENT COM-
PETENTLY ………………………………………………………………… XLVIII
Ethical Considerations ………………………………………………………………….. XLVIII
Disciplinary Rules ………………….XLIX
DR 6-101 Failing to Act Competently ……….XLIX
DR 6-102 Limiting Liability to Client ……….XLIX
CANON 7. A LAWYER SHOULD REPRESENT A CLIENT ZEALOUS-
LY WITHIN THE BOUNDS OF THE LAW ………… XLIX
Ethical Considerations ………XLIX
Duty of the Lawyer to a Client ……………………….L I
Duty of the Lawyer to the Adversary System of Justice LIV
Disciplinary Rules ………LVIII
DR 7-101 Representing a Client Zealously ……….LVIII
DR 7-102 Representing a Client within the Bounds of the Law LVIII DR 7-103 Performing the Duty of Public Prosecutor or Other
Government Lawyer …………………….LIX
DR 7-104 Communicating with One of Adverse Interest LIX
DR 7-105 Threatening Criminal Prosecution …………………….LIX
DR 7-106 Trial Conduct …………………….LIX
DR 7-107 Trial Publicity ………………………LX
DR 7-108 Communication with or Investigation of Jurors LXII
DR 7-109 Contact with Witnesses …………LXII
DR 7-110 Contact with Off icials …………………..LXII
AMERICAN BAR ASSOCIATION
CODE OF PROFESSIONAL RESPONSIBILITY
With Amendments to March 1, 1974
PREAMBLE AND PRELIMINARY STATEMENT
Preamble 1
The continued existente of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-gov-ernment.2 Law so grounded makes justice possi-ble, for only through such law does the dignity of the individual attain respect and protection. With-out it, individual rights become subject to unre-strained power, respect for law is destroyed, and rational self-government is impossible.
Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system.3 A consequent obligation of lawyers is to maintain the highest standards of ethical con-duct.
In fulfilling his professional responsibilities, a lawyer necessarily assumes various roles that re-quire the performance of many difficult tasks. Not every situation which he may encounter can be foreseen,4 but fundamental ethical principies are always present to guide him. Within the framework of these principies, a lawyer must with courage and foresight be able and ready to shape the body of the law to the ever-changing relation-ships of society.5
1 The footnotes are intended merely to enable the reader to relate the provisions of this Code to the ABA Canons of Professional Ethics adopted In 1908, as amended, the Opin-ions of the ABA Committee on Professional Ethics, and a limIted number of other sources; they are not intended to be an annotation of the views taken by the ABA Special Commlttee on Evaluation of Ethical Standards. Footnotes citing ABA Canons refer to the ABA Canons of Professional Ethics, adopted in 1908, as amended.
2 Cf. ABA Canons, Preamble.
3 "[T]he lawyer stands today in special need of a clear understanding of his obllgations and of the vital connection between those obligations and the role his profession plays in society." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1160 (1958).
4 ‘No general statement of the responsibilities of the legal profession can encompass all the situations in which the lawyer may be placed. Each position held by him makes its own peculiar demands. These demands the lawyer must clarif y for himself in the light of the particular role in which he serves." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958).
The Code of Professional Responsibility points the way to the aspiring and provides standards by which to judge the transgressor. Each lawyer must find within his own conscience the touch-stone against which to test the extent to which his actions should rise aboye minimum standards. But in the last analysis it is the desire for the re-spect and confidence of the members of his pro-fession and of the society which he serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principies, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.
Preliminary Statement
In furtherance of the principies stated in the Preamble, the American Bar Association has promulgated this Code of Professional Responsi-bility, consisting of three separate but interrelated parts: Canons, Ethical Considerations, and Dis-ciplinary Rules.6 The Code is designed to be adopted by appropriate agencies both as an in-spirational guide to the members of the profession and as a basis for disciplinary action when the conduct of a lawyer falls below the required min-imum standards stated in the Disciplinary Rules,
Obviously the Canons, Ethical Considerations, and Disciplinary Rules cannot apply to non-law-yers; however, they do define the type of ethical conduct that the public has a right to expect not
"The law and its lnstitutions change as social condi-tions change. They must change if they are to preserve, much less advance, the political and social values from which they derive their purposes and their life. This is trae of the most important of legal institutions, the pro-fession of law. The profession, too, must change when conditions change in order to preserve and advance the social values that are its reasons for being." Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and the Organized Bar, 12 U.C.L.A.L. Rey. 438, 440 (1965).
6 The Supreme Court of Wisconsin adopted a Code of Judicial Ethics in 1967. "The code is divided into stand-ards and rules, the standards being statements of what the general deslrable level of conduct should be, the rules being particular canons, the violation of which shall sub-ject an individual judge to sanctions." In re Promulgation of a Code of Judicial Ethics, 36 Wis.2d 252, 255, 153 N.W. 2d 873, 874 (1967).
The portion of the Wisconsin Code of Judicial Ethics entitled "Standards" states that "[t]he following stand-ards set forth the significant qualities of the ideal judge . . . ." Id., 36 Wis.2d at 256, 153 N.W.2d at 875. The portion entitled "Rules" states that "[t]he court promul-gates the following rules because the requirements of judi-
only of lawyers but also of their non-professional employees and associates in all matters pertaining to professional employment. A lawyer should ultimately be responsible for the conduct of his employees and associates in the course of the pro-fessional representation of the client.
The Canons are statements of axiomatic norms, expressing in general terms the standards of pro-fessional conduct expected of lawyers in their rela-tionships with the public, with the legal system, and with the legal profession. They embody the general concepts from which the Ethical Consid-erations and the Disciplinary Rules are derived.
The Ethical Considerations are aspirational in character and represent the objectives toward which every member of the profession should strive. They constitute a body of principies upon which the lawyer can rely for guidance in many specific situations.7
The Disciplinary Rules, unlike the Ethical Con-siderations, are mandatory in character. The Dis-ciplinary Rules state the minimum level of con-duct below which no lawyer can fall without being subject to disciplinary action. Within the frame-
cial conduct embodied therein are of sufficient gravity to warrant sanctions if they are not obeyed . . . ." Id., 36 Wls.2d at 259, 153 N.W.2d at 876.
7 "Under the condltions of modern practice it Is peculiar-ly necessary that the lawyer should understand, not mere-ly the established standards of professional conduct, but the reasons underlying these standards. Today the lawyer plays a changing and Increasingly varled role. In many developing flelds the precise contribution of the legal pro-fesslon is as yet undefined." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159 (1958).
"A true sense of professional responsibillty must derive from an understanding of the reasons that lie back of speciflc restraints, such as those embodied in the Canons. The grounds for the lawyer’s peculiar obligations are to be found in the nature of his calling. The lawyer who seeks a olear understanding of bis duties will be led to reflect on the special services his profession renders to so-ciety and the services it might render if its full capacities were realized. When the lawyer fully understands the nature of his office, he will then discern what restraints are necessary to keep that office wholesome and effective." Id.
8 "Disbarment, designed to protect the public, is a punish-ment or penalty imposed on the lawyer. . . . He is accordingly entitled to procedural due process, which in-dudes fair notice of the charge." In re Ruffalo, 390 U.S. 544, 550, 20 L.Ed.2d 117, 122, 88 S.Ct. 1222, 1226 (1968), rehearing denied, 391 U.S. 961, 20 L.Ed.2d 874, 88 S.Ct. 1833 (1968).
"A State cannot exclude a person from the practice of law or from any other occupation in a manner or for rea-sons that contravene the Due Frocess or ,Equal Protection
Clause of the Fourteenth Amendment. . . A State can require high standards of qualification . . . but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law." Schware
v. Bd. of Bar Examiners, 353 U.S. 232, 239, 1 L.Ed.2d 796, 801-02, 77 S.Ct. 752, 756 (1957).
"[A]n accused lawyer may expect that he will not be condemned out of a capricious self-righteousness or denied the essentials of a fair hearing." Kingsland v. Dorsey, 338 U.S. 318, 320, 94 L.Ed. 123, 126, 70 S.Ct. 123, 124-25 (1949).
"The attorney and counsellor being, by the solemn judi-cial act of the court, clothed with his office, does not hold
work of fair trial,8 the Disciplinary Rules should be uniformly applied to all lawyers,9 regardless of the nature of their professional activities.10 The Code makes no attempt to prescribe either dis-ciplinary procedures or penalties 11 for violation of a Disciplinary Rule,12 nor does it undertake to de-fine standards for civil liability of lawyers for professional conduct. The severity of judgment against one found guilty of violating a Disciplinary Rule should be determined by the character of the offense and the attendant circumstances.13 An enforcing agency, in applying the Disciplinary Rules, may find interpretive guidance in the basic principles embodied in the Canons and in the ob-jectives reflected in the Ethical Considerations.
it as a matter of grace and favor. The right which it con-fers upon him to appear for sultors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legisla-ture. It is a right of which he can only be deprived by the judgment of the court, for moral or professional de-linquency." Ex parte Garland, 71 U.S. (4 Wall.) 333, 378-79, 18 L.Ed. 366, 370 (1866).
See generally Comment, Procedural Due Procesa and Character Hearings for Bar Applicants, 15 Stan.L.Rev. 500 (1963).
"The canons of professional ethics must be enforced by the Courts and must be respected by members of the Bar if we are to maintain public confidence in the in-tegrity and impartiality of the admInistration of justice." In re Meeker, 76 N.M. 354, 357, 414 P.2d 862, 864 (1966), appeal dismissed, 385 U.S. 449 (1967).
10 See ABA Canon 45.
"The Canons of this Association govern all lts members, irrespective of the nature of their practice, and the appli-cation of the Canons is not affected by statutes or regula-tions governing certain activities of lawyers which may prescribe less stringent standards." ABA Comm. on Pro-fessional Ethics, OPINIONS, No. 203 (1940) [hereinafter each Opinlon is cited as "ABA Opinion"].
Cf. ABA Opinion 152 (1936).
11 "There is generally no prescribed discipline for any particular type of improper conduct. The disciplinary measures taken are discretionary with the courts, which may disbar, suspend, or merely censure the attorney as the nature of the offense and past Indicia of character may warrant." Note, 43 Cornell L.Q. 489, 495 (1958).
12 The Code seeks only to specify conduct for which a lawyer should be disciplined. Recommendations as toa the procedures to be used in disciplinary actions and the grav-ity of disciplinary measures appropriate for violation of the Code are within the jurisdiction of the American Bar Association Special Committee on Evaluation of Dis-ciplinary Enforcement.
13 "The severity of the judgment of this court should be in proportion to the gravity of the offenses, the moral turpitude involved, and the extent that the defendant’s acts and conduct affect his professional qualifications to prac-tice law." Louisiana State Bar Ass’n v. Steiner, 204 La. 1073, 1092-93, 16 So.2d 843, 850 (1944) (Hlggins, T., con-curring in decree).
"Certainly an erring lawyer who has been dIsciplined and who having paid the penalty has given satisfactory evidence of repentance and has been rehabilitated and re-stored to his place at the bar by the court which knows him best ought not to have what amounts to an order of permanent disbarment entered against him by a federal court solely on the basis of an earlier criminal record and without regard to his subsequent rehabilitation and pres-
ent good character . . We think, therefore, that the district court should reconsider the appellant’s appl
CANON 1
A Lawyer Should Assist in Maintaining the Integrity and Competente of the Legal Profession
ETHICAL CONSIDERATIONS
EC 1-1 A basic tenet of the professional respon-sibility of lawyers is that every person in our so-ciety should have ready access to the independent professional services of a lawyer of integrity and competence. Maintaining the integrity and im-proving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer.
EC 1-2 The public should be protected from those who are not qualified to be lawyers by reason of a deficiency in education 1 or moral standards 2 or of other relevant factors 3 but who nevertheless
cation for admission and grant it unless the court finds it to be a fact that the appellant is not presently of good moral or professional character." In re Dreier, 258 F.2d 68, 69-70 (3d Cir. 1958).
"[W]e cannot conclude that all educational restrictions [on bar admission] are unlawful. We assume that few would deny that a grammar school education requirement, before taking the bar examination, was reasonable. Or that an applicant had to be able to read or write. Once we conclude that some restriction is proper, then it becomes a matter of degree—the problem of drawing the line.
. .
"We conclude the fundamental question here is whether Rule IV, Section 6 of the Rules Pertaining to Admission of Applicants to the State Bar of Arizona is ‘arbitrary, capricious and unreasonable.’ We conclude an educational requirement of graduation from an accredited law school is not." Hackin v. Lockwood, 361 F.2d 499, 503-04 (9th Cir. 1966), cert. denied, 385 U.S. 960, 17 L.Ed.2d 305, 87 S.Ct. 396 (1966).
2 "Every state in the United States, as a prerequisite for admission to the practice of law, requires that applicants possess ‘good moral character.’ Although the requirement ls of judicial origin, it is now embodied in legislation in most states." Comment, Procedural Due Process and Char-acter Hearings for Bar Applicants, 15 Stan.L.Rev. 500 (1963).
"Good character in the members of the bar is essential to the preservation of the integrity of the courts. The duty and power of the court to guard its portals agalnst intrusion by men and women who are mentally and morally dishonest, unfit because of bad character, evidenced by their course of conduct, to participate in the administra-tive law, would seem to be unquestioned in the matter of preservation of judicial dignity and integrity." In re Monaghan, 126 Vt. 53, 222 A.2d 665, 670 (1966).
"Fundamentally, the question involved in both sltua-tions [i.e. admission and disciplinary proceedings] is the same—is the applicant for admission or the attorney sought to be disciplined a fit and proper person to be permitted to practice law, and that usually turns upon whether he has committed or is likely to continue to commit acts of moral turpitude. At the time of oral argument the at-torney for respondent frankly conceded that the test for admission and for discipline is and should be the same. We agree with this concession." Hallinan v. Comm. of Bar Examiners, 65 Ca1.2d 447, 453, 421 P.2d 76, 81, 55 Cal. Rptr. 228, 233 (1966).
s "Proceedings to gain admission to the bar are for the purpose of protecting the public and the courts from the ministrations of persons unfit to practice the profession. Attorneys are officers of the court appointed to assist the
seek to practice law. To assure the maintenance of high moral and educational standards of the legal profession, lawyers should affirmatively as-sist courts and other appropriate bodies in pro-mulgating, enforcing, and improving requirements for admission to the bar.4 In like manner, the bar has a positive obligation to aid in the continued improvement of all phases of pre-admission and post-admission legal education.
EC 1-3 Before recommending an applicant for admission, a lawyer should satisfy himself that the applicant is of good moral character. Although a lawyer should not become a self-appointed in-vestigator or judge of applicants for admission, he should report to proper officials all unfavor-able information he possesses relating to the character or other qualifications of an applicants
EC 1-4 The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the atten-tion of the proper officials. A lawyer should re-veal voluntarily to those officials all unprivileged knowledge of conduct of lawyers which he believes clearly to be in violation of the Disciplinary Rules.° A lawyer should, upon request, serve on and assist committees and boards having responsi-bility for the administration of the Disciplinary Rules.7
EC 1-5 A lawyer should maintain high standards of professional conduct and should encourage fel-low lawyers to do likewise. He should be temper-ate and dignified, and he should refrain from all
court in the administration of justice. Into their hands are committed the property, the liberty and sometimes the• lives of their clients. This commitment demands a high degree of intelligence, knowledge of the law, respect for its function in society, sound and faithful judgment and, aboye all else, integrity of character in private and professional conduct." In re Monaghan, 126 Vt. 53, 222 A.2d 665, 676 (1966) (Holden, C. J., dissenting).
4 "A bar composed of lawyers of good moral character ís a worthy objective but it is unnecessary to sacrifice vital freedoms in order tu obtain that goal. It is also important both to society and the bar itself that lawyers be unin-timidated—free to think, speak, and act as members of an Independent Bar." Konigsberg v. State Bar, 353 U.S. 252, 273, 1 L.Ed.2d 810, 825, 77 S.Ct. 722, 733 (1957).
5 See ABA Canon 29.
6 ABA Canon 28 designates certain conduct as unpro-fessional and then states that : "A duty to the public and to the profession devolves upon every member of the Bar having knowledge of such practices upon the part of any practitioner immedlately to inform thereof, to the end that the offender may be disbarred." ABA Canon 29 states a broader admonition: "Lawyers should expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession."
7 "It is the obligation of the organized Bar and the in-dividual lawyer to give unstinted cooperation and assistance to the highest court of the state in discharging its function and duty with respect to discipline and in purging the profession of the unworthy." Report of the Special Com-rnittee on Disciplinary Procedures, 80 A.B.A.Rep. 463, 470
CODE OF PROFESSIONAL RESPONSIBILITY
illegal and morally reprehensible conduct s Be-cause of his position in society, even minor viola-tions of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers es-pecially, respect for the law should be more than a platitude.
EC 1-6 An applicant for admission to the bar or a lawyer may be unqualified, temporarily or per-manently, for other than moral and educational reasons, such as mental or emotional instability. Lawyers should be diligent in taking steps to see that during a period of disqualification such per-son is not granted a license or, if licensed, is not permitted to practice.9 In like manner, when the disqualification has terminated, members of the bar should assist such person in being licensed, or, if licensed, in being restored to his full right to practice.
DISCIPLINARY RULES
DR 1-101 Maintaining Integrity and Competence of the Legal Profession.
(A) A lawyer is subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a ma-terial fact requested in connection with, his application for admission to the bar.lo
Cf. ABA Canon 32.
9 "We decline, on the present record, to disbar Mr. Sher-man or to reprimand him—not because we condone bis ac-tions, but because, as heretofore indicated, we are con-cerned with whether he is mentally responsible for what he has done.
"The logic of the situation would seem to dictate the conclusion that, if he was mentally responsible for the conduct we have outlined, he should be disbarred: and, If he was not mentally responsible, he should not be per-mitted to practice law.
"However, the flaw in the logic is that he may have been mentally irresponsible [at the time of his offensive conduct] . . ., and. yet, have sufficiently Improved in the almost two and one-half years intervening to be able to capably and competently represent his clients. . . .
"We would make clear that we are satisfled that a case has been made against Mr. Sherman, warranting a refusal to permit him to further practice law in this state unless he can establish bis mental irresponsibility at the time of the offenses charged. The barden of proof is upon him.
"If he establishes such mental irresponsibility, the bur-den is then opon him to establish his present capability to practice law." In re Sherman, 58 Wash.2d 1, 6-7, 354 P.2d 888, 890 (1960), cert. denied. 371 U.S. 951, 9 L.Ed.2d 499, 83 S.Ct. 506 (1963).
10 "This Court has the inherent power to revoke a license to practice law in this State, where such license was issued by this Court, and its issuance was procured by the fraud-ulent concealment, or by the false and fraudulent repre-sentation by the applicant of a fact which was manifestly material to the issuance of the license." North Carolina ex rel. Attorney General v. Gorson, 209 N.C. 320, 326, 183 S.E. 392, 395 (1936), cert. denied, 298 U.S. 662, 80 L.Ed. 1387, 56 S.Ct. 752 (1936).
See also Application of Patterson, 318 P.2d 907, 913 (Or. 1957), cert. denied, 356 U.S. 947, 2 L.Ed.2d 822, 78 S.Ct. 795 (1958).
(B) A lawyer shall not further the application for admission to the bar of another person known by him to be unqualified in respect to char-acter, education, or other relevant attribute.11
DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Clrcumvent a Disciplinary Rule through actions of another32
(3) Engage in illegal conduct involving moral tturpitude.13
11 See ABA Canon 29.
12 In ABA Opinion 95 (1933), which held that a municipal attorney could not permit police officers to interview per-sons with claims against the municipality when the at-torney knew the clalmants to be represented by counsel, the Committee on Professional Ethics said:
"The law officer is, of course, responsible for the acts of those in his department who are under his supervislon and control." Opinion 85. In re Robinson, 136 N.Y.S. 548 (affirmed 209 N.Y. 354-1912) held that it was a matter of disbarment for an attorney to adopt a general course of approving the unethical conduct of employees of bis client, even though he did not actively participate thereln.
. .. ‘The attorney should not advine or sanction acts by his client which he himself should not do.’ Opinion 75."
13 "The most obvious non-professional ground for dis-barment is conviction for a felony. Most states make con-viction for a felony grounds for automatic disbarment. Some of these states, including New York, make disbar-ment mandatory upon conviction for any felony, while others require disbarment only for those felonies which involve moral turpitude. There are strong arguments that some felonies, such as involuntary manslaughter, reflect neíther on an attorney’s fitness, trustworthiness, nor com-petence and, therefore, should not be grounds for disbar-ment, but most states tend to disregard these arguments and, following the common law rule, make disbarment mandatory on conviction for any felony." Note, 43 Cornell L.Q. 489, 490 (1958).
"Some states treat conviction for misdemeanors as
grounds for automatic disbarment . However, the vast majority, accepting the common law rule, require that the misdemeanor involve moral turpitude. While the definition of moral turpitude may prove difficult, it seems only proper that those minor offenses which do not affect the attorney’s fitness to continue in the profession should not be grounds for disbarment. A good example is an assault and battery conviction which would not involve moral turpitude unless done with malice and deliberation." Id. at 491.
"The term ‘moral turpitude’ has been used in the law for centuries. It has been the subject of many declslons by the courts but has never been clearly defined because of the nature of the term. Perhaps the best general defi-nition of the term ‘moral turpitude’ is that It lmports an act of baseness, vileness or depravlty in the duties which one person owes to another or to society in general, which is contrary to the usual, accepted and customary rule of right and duty which a person should follow. 58 C.J.S. at page 1201. Although offenses against revenue laws have been held to be•crimes of moral turpitude, it has also been held that the attempt to evade the payment of taxes due to the government or any subdivlsion thereof, while wrong and unlawful, does not involve moral turpitude. 58 C.J.S. at page 1205." Comm. on Legal Ethics v. Scheer, 149 W.Va. 721, 726-27, 143 S.E.2d 141, 145 (1965).
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that ad• versely reflects on his fltness to prac-tice law.14
DR 1-103 Disclosure of Information to Authori-ties.
(A) A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such vlolatlon.15
(B) A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judgeos
CANON 2
A Lawyer Should Assist the Legal Profession in Fulfilling Its Duty to Make Legal Counsel Availabl
ETHICAL CONSIDERATIONS
EC 2-1 The need of members of the public for legal services 1 is met only if they recognize their
"The right and power to discipline an attorney, as one of its officers, is Inherent in the court. . . . This pow-er is not limitad to those instances of misconduct whereín he has been employed, or has acted, in a professional ca-pacity; but, on the contrary, this power may be exercised where his misconduct outside the scope of his professional relations shows him to be an unfit person to practice law." In re Wilson, 391 S.W.2d 914, 917-18 (Mo. 1965).
14 "It is a fair characterization of the lawyer’s responsi-bilily in our society that he stands ‘as a shield,’ to quote Devlin, J., in defense of right and to ward off wrong. From a profession charged with these responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest ob-servante of fiduciary responsibility, that have, throughout the centuries, been compendiously described as ‘moral char-acter’ ". Schware v. Bd. of Bar Examiners, 353 U.S. 232, 247 L.Ed.2d 796, 806, 77 S.Ct. 752. 761 (1957) (Frankfurter, J., concurring).
"Particularly applicable here is Rule 4.47 providing that ‘A lawyer should always maintain his integrlty; and shall not wilifully commit any act against the interest of the public; nor shall he vlolate his duty to the courts or his cllents; nor shall he, by any misconduct, commit any of-fense against the laves of Missouri or the United States of America, which amounts to a crime involving acta done by him contrary to justice, honesty, modesty or good morals; nor shall he be guilty of any other misconduct whereby, for the protection of the public and those charged with the administration of justice, he should no longer be entrusted with the duties and responsibilities belonging to the office of an attorney.’ " In re Wilson, 391 S.W.2d 914, 917 (Mo. 1965).
15 See ABA Canon 29; cf. ABA Canon 28. 18 Cf. ABA Canons 28 ami 29.
"Men have need for more than a system of law; they have need for a system of law which functions, and that
legal problems, appreciate the importante of seek-ing assistance,2 and are able to obtain the services of acceptable legal counsel.3 Hence, important functions of the legal profession are to educate laymen to recognize their legal problems, to facili-tate the process of intelligent selection of lawyers, and to assist in making legal services fully avail-able?
Recognition of Legal Problems
EC 2-2 The legal profession should assist laymen to recognize legal problems because such prob• lems may not be self-revealing and often are not
means they have need for lawyers." Cheatham, The Law-yer’s Role and Surroundings, 25 Rocky Mt.L.Rev. 405 (1953).
2 "Law is not self-applying; men must apply and utilize it in concrete cases. But the ordinary man le incapable. He cannot know the principies of law or the rules guiding the machinery of law administration; he does not know how to formulate his desires with precision and to put them into writing; he is ineffective in the presentation of his claims." Cheatham, The Lawyer’s Role and Surround-ings, 25 Rocky Mt.L.Rev. 405 (1953).
3 "This need [to provide legal services] was recognized by . . . Mr. [Lewis F.] Powell [Jr., President, Amer-ican Bar Association, 1963-64], who said: ‘Looking at contemporary America realistically, we must admit that despite all our efforts to date (and these have not been insignificant), far too many persons are not able to obtain equal justice under law. This usually results because their poverty or their ignorance has prevented them from ob-taining legal counsel.’ " Address by E. Clinton Bamberger, Association of American Law Schools 1965 Annual Meeting, Dec. 28, 1965, in Proceedings, Part II, 1965, 61, 63-64 (1965).
"A wide gap separates the need for legal services and its satisfaction, as numerous studies reveal. Looked at from the sida of the layman, one reason for the gap is poverty and the consequent inability to pay legal fees. Another set of reasons is ignorance of the need for and the value of legal services, and ignorance of where to find a dependable lawyer. There is fear of the mysterious processes and delays of the law, and there is fear of over-reaching and overcharging by lawyers, a fear stimulated by the occasional exposure of shysters." Cheatham, Avail-ability of Legal Services: The Responsibility of the In-dividual Lawyer and of the Organized Bar, 12 U.C.L.A.L. Rev. 438 (1965).
4 "It is not only the right but the duty of the profession as a whole to utilize such methods as may be developed to bring the services of its members to those who need them. so long as this can be done ethically and with dignity." ABA Opinion 320 (1968).
"[T]here is a responsibility on the bar to make legal services available to those who need them. The maxim, ‘privilege brings responsibilities,’ can be expanded to read, exclusive privilege to rendar public service brings responsi-bility to assure that the service is available to those in need of it." Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A.L.Rev. 438, 443 (1965).
"The obligation to provide legal services for those ac-tually caught up in litigation carries with it the obligation to make preventiva legal advice accessible to all. It is among those unaccustomed to business affairs and fearful of the ways of the law that such advice is often most need-ed. If it is not received in time, the most valiant and skillful representation in court may come too late." Pro-fessional Responsibility: Report of the Joint Conference.
44 A.B.A.J. 1159, 1216 (1958).
timely noticed.5 Therefore, lawyers acting under proper auspices should encourage and participate in educational and public relations programs con-cerning our legal system with particular reference to legal problems that frequently arise. Such ed-ucational programs should be motivated by a desire to benefit the public rather than to obtain publicity or employment for particular lawyers.6 Examples of permissible activities include preparation of institutional advertisements 7 and professional arti-cles for lay publications s and participation in
3 "Over a period of years institutional advertising of pro-grams for the benefit of the public have been approved by this and other Ethics Committees as well as by the courts.
"To the same effect are opinions of this Committee: Opinion 179 dealing wlth radio programs presenting a sit-uation in which legal advice is suggested in connection with a drafting of a will; Opinions 205 and 227 permitting institutional advertising of lawyer referral plans; Opinion 191 holding that advertising by lawyer members of a non-bar associated sponsored plan violated Canon 27. The Illi-nois Ethics Committee, in its Opinion 201, sustained bar association institutional advertising of a check-up plan
"This Committee has passed squarely on the question of the propriety of institutional advertising in connection with a legal check-up plan. Informal Decision C-171 quotes wlth express approval the Michigan Ethics Committee as follows:
As a public service, the bar has in the past addressed the public as to the importance of making wills, consult-ing counsel in connection with real estate transactions, etc. In the same way, the bar, as such, may recommend this program, provided always that it does it in such a way that there is not suggestion of solicitation on behalf of any individual lawyer."
ABA Opinion 307 (1962).
e "We recognize a distinction between teaching the lay public the importance of securing legal services preventive In character and the solicitation of professional employment by or for a particular lawyer. The former tends to pro-mote the public interest and enhance the public estimation of the profession. The latter is calculated to injure the public and degrade the profession.
"Advertising which is calculated to teach the layman the benefits and advantages of preventive legal services will benefit the lay public and enable the lawyer to render a more desirable and beneficial professional service. . . ABA Opinion 179 (1938).
"[A bar association] may engage in a dignified institu-tional educational campaign so long as it does not Involve the Identification of a particular lawyer with the check-up program. Such educational material may polnt out the value of the annual check-up and may be printed in news-papers, magazines, pamphlets, and brochures, or produced by means of films, radio, television or other media. The Printed materials may be distributed in a dignified way through the offices of persons having close dealings with lawyers as, for example, banks, real estate agents, insur-ance agents and others. They may be available in law-Yers’ offices. The bar association may prepare and dis-tribute to lawyers materials and forms for use in the annual legal check-up." ABA Opinion 307 (1962).
a "A lawyer may with propriety write articles for publi-catlons in which he gives information upon the law . .." ABA Canon 40.
"The newsletters, by means of which respondents are alleged to have advertised their vares, were sent to the officers of union clients represented by their firm
seminars, lectures, and civic programs. But a lav.v-yer who participates in such activities should shun personal publicity.9
EC 2-3 Whether a lawyer acts properly in vol-unteering advice to a layman to seek legal services depends upon the circumstances.10 The giving of advice that one should take legal action could well be in fulfillment of the duty of the legal profession to assist laymen in recognizing legal problems.11 The advice is proper only if motivated by a desire to protect one who does not recognize that he may have legal problems or who is ignorant of his legal rights or obligations. Hence, the advice is im-proper if motivated by a desire to obtain personal benefit,12 secure personal publicity, or cause liti-gation to be brought merely to harass or injure another. Obviously, a lawyer should not contact
They contain no reference to any cases handled by the respondents. Their contents are confined to rulings of boards, commissions and courts on problems of interest to labor union, together with proposed and completed leg-islation important to the Brotherhood, and other items which might affect unions and their members. The re-spondents cite Opinion 213 of the Committee on Profession-al Ethics and Grievances as permitting such practice. Af ter studying this opinlon, we agree that sending of newsletters of the aboye type to regular clients does not offend Canon 27." In re Ratner, 194 Kan. 362, 371, 399 P.2d 865, 872-73 (1965).
Cf. ABA Opinion 92 (1933).
9 Cf. ABA Opinions 307 (1962) and 179 (1938).
"There is no ethical or other valid reason why an attor-ney may not write articles on legal subjects for magazines and newspapers. The fact that the publication is a trade journal or magazine, makes no difference as to the ethical question involved. On the other hand, it would be un-ethical and contrary to the precepts of the Canons for the attorney to allow his neme to be carried In the magazine
or other publication . . as a free legal adviser for the subscribers to the publication. Such would be contrary to Canons 27 and 35 and Opinions heretofore announced by the Committee on Professlonal Ethics and Grlevances. (See Opinions 31, 41, 42, and 56)." ABA Opinion 162 (1936).
lo See ABA Canon 28.
11 This question can assume constitutional dimensions: "We meet at the outset the contention that ‘solicitation’ is wholly outside the crea of freedoms protected by the First Amendment. To this contention there are two an-swers. The first is that a State cannot foreclose. the ex-ercise of constitutional rights by mere labels. The second is that abstract discussion is not the only species of com-munication which the Constltutlon protects; the First Amendment also protects vigorous advocacy, certainly of
lawful ends, against governmental intrusion. . .
• • • •
"However valid may be Virginia’s interest in regulating the traditionally illegal practice of barratry, maintenance and champerty, that interest does not justify the prohibi-tion of the NAACP activities disclbsed by this record. Ma-licious intent was of the essence of the common-law offens-es of fomenting or stirring up litigation. And whatever may be or may have been true of suits against governments in other countries, the exercise in our own, as in this case of First Amendment rights to enforce Constitutional rights through litigation, as a matter of law, cannot be deemed malicious." NAACP v. Button, 371 U.S. 415, 429, 439-40, 9 L.Ed.2d 405, 415-16, 422, 83 S.Ct. 328, 336, 341 (1963).
12 See ABA Canon 27.
a non-client, directly or indirectly, for the purpose of being retained to represent him for compensa-tion.
EC 2-4 Since motivation is subjective and often difficult to judge, the motives of a lawyer who vol-unteers advice likely to produce legal controversy may well be suspect if he receives professional em-ployment or other benefits as a result.13 A lawyer who volunteers advice that one should obtain the services of a lawyer generally should not himself accept employment, compensation, or other benefit in connection with that matter. However, it is not improper for a lawyer to volunteer such ad-vice and render resulting legal services to close friends, relatives, former clients (in regard to mat-ters germane to former employment), and regular clients.14
EC 2-5 A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar in-dividual problems,18 since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for laymen should caution them not to attempt to solve individual problems upon the basis of the information contained therein.18
13 "The Canons of Professional Ethics of the American Bar Association and the decisions of the courts quite gen-erally prohibít the direct solicitation of business for gain by an attorney either through advertisement or personal communication; and also condemn the procuring of busi-ness by indirection through touters of any kind. It is dlsreputable for an attorney to breed litigation by seeking out those who have claims for personal injuries or other grounds of action in order to secure them as clients, or to employ agents or runners, or to reward those who hring
or influence the bringing of business to his office. . . Moreover, It tends quite easily to the institution of base-less litigation and the manufacture of perjured testimony. From early times, this danger has been recognized in the law by the condemnation of the crime of common barratry, or the stirring up of sults or quarrels between individuals at law or otherwise." In re Ades, 6 F.Supp. 467, 474-75
(D. Mary. 1934).
14 "Rule 2.
"[A] member of the State Bar shall not solicit profes-sional employment by
"(1) Volunteering counsel or advice except where ties of blood relationship or trust make it appropriate." Cal. Business and Professions Code 1 6076 (West 1962).
15 "Rule 18 . . A member of the State Bar shall not
advise inquirers or render opinions to them through or in connection with a newspaper, radio or other publicity mecilum of any kind in respect to their specific legal prob-lems, whether or not such attorney shall be compensated for his services." Cal.Business and Professlons Code 1 6076 (West 1962).
16 "In any case where a member might well apply the advice given in the opinion to his individual affairs, the lawyer rendering the opinion [concerning problems com-mon to members of an association and dlstributed to the members through a periodic bulletin] should specifically state that this opinion should not be relied on by any
Selection of a Lawyer: Generally
EC 2-6 Formerly a potential client usually knew the reputations of local lawyers for competency and integrity and therefore could select a prac-titioner in whom he had confidente. This tradi-tional selection process worked well because it was initiated by the client and the choice was an in-formed one.
EC 2-7 Changed conditions, however, have seri-ously restricted the effectiveness of the traditional selection process. Often the reputations of law-yers are not sufficiently known to enable laymen to make intelligent choices.17 The law has become increasingly complex and specialized. Few law-yers are willing and competent to deal with every kind of legal matter, and many laymen have dif fi-culty in determining the competente of lawyers to render different types of legal services. The selection of legal counsel is particularly difficult for transients, persons moving into new arcas, persons of limited education or mean, and others who have little or no contact with lawyers.18
EC 2-8 Selection of a lawyer by a layman often is the result of the advice and recommendation of third parties—relatives, friends, acquaintances, business associates, or other lawyers. A layman is best served if the recommendation is disinterest-ed and informed. In order that the recommenda-tion be disinterested, a lawyer should not seek to influence another to recommend his employment.10 A lawyer should not compensate another person for recommending him, for influencing a prospec-tive client to employ him, or to encourage future recommendations.20
Selection of a Lawyer: Professional Notices and Listings
EC 2-9 The traditional ban against advertising by lawyers, which is subject to certain limited excep-tions, is rooted in the public interest. Competitive advertising would encourage extravagant, artful, self-laudatory 21 brashness in seeking business and
member as a basis for handling his individual affairs, but that in every case he should consult his counsel. In the publication of the opinion the association should make a similar statement." ABA Opinion 273 (1946).
17 "A group of recent interrelated changes bears directly on the availability of legal services. . . . [One] change is the constantly accelerating urbanization of the country and the decline of personal and neighborhood knowledge of whom to retal/1 as a professional man." Cheatham, Avail-ability of Legal Services: The Responsibility of the In-dividual Lawyer and of the Organized Bar, 12 U.C.L.A.L. Rev. 438, 440 (1965).
la Cf. Cheatham, A Lawyer When Needed: Legal Services for the Middle Classes, 63 Colum.L.Rev. 973, 974 (1963).
19 See ABA Canon 27.
20 See ABA Canon 28.
21 " ‘Self-laudation’ is a very flexible concept; Canon 27 does not define it, so what eourse of conduct would be said to constitute it under a given state of facts would no doubt vary as the opinions of men vary. As a famous English judge said, it would vary as the length of the chancellor’s foot. It must be ln words and tone that will ‘offend the traditions and lower the tone of our profession.’ When it
thus could mislead the layman.22 Furthermore, it would inevitably produce unrealistic expecta-tions in particular cases and bring about distrust of the law and lawyers.23 Thus, public confidence in our legal system would be impaired by such advertisements of professional services. The at-torney-client relationship is personal and unique and should not be established as the result of pressures and deceptions.24 History has demon-strated that public confidence in the legal system is best preserved by strict, self-imposed controls over, rather than by unlimited, advertising.
does this, it is ‘reprehensible.’ This seems to be the test by which ‘self-laudation’ is measured." State v. Nichols, 151 So.2d 257, 259 (Fla. 1963).
22 "Were it not for the prohibitions of . . [Canon
27] lawyers could, and no doubt would be forced to, en-gage competitively in advertising of all kinds in which each would seek to explain to the public why he could serve better and accomplish more than his brothers at the Bar.
"Susceptible as we are to advertising the public would then be encouraged to choose an attorney on the basis of which had the better, more attractive advertising program rather than on his reputation for professional ability.
"This would certainly maim, if not destroy, the dignity and professional status of the Bar of this State." State v. NIchols, 151 So.2d 257, 268 (Fla. 1963) (O’Connell, J., con-curring in part and dissenting in part).
23 Cf. ABA Canon 8.
24 "The prohibition of advertising by lawyers deserves some examination. All agree that advertising by an in-dividual lawyer, if permitted, will detract from the dignity of the profession, but the matter goes deeper than this. Perhaps the most understandable and acceptable additional reasons we have found are stated by one commentator as follows :
" ‘1. That advertisements, unless kept within narrow limits, like any other forro of solicitation, tend to stir up litigation, and such tendency is against the public interest.
That if there were no restrictions on advertise-ments, the least capable and least honorable lawyers would be apt to publish the most extravagant and alluring material about themselves, and that the harm which would result would, in large measure, fall on the ígnorant and on those least able to af-ford it.
That the temptation would be strong to hold out as inducements for employment, assurances of suc-cess or of satisfaction to the client, which assur-ances could not be realized, and that the giving of such assurances would materially increase the temptation to use ill means to secure the end de-sired by the client.
" ‘In other words, the reasons for the rule, and for the conclusion that it is desirable to prohiba advertising entirely, or to limit it within such narrow bounds that it will not admit of abuse, are based on the possibility and probability that this means of publicity, if permitted, will be abused.’ Harrison Hewitt in a comment at 15 A.B.A.J. 116 (1929) reproduced in Cheatham, Cases and Materials on the Legal Frotes-sion (2d Ed., 1955), p. 525.
"Of course, competition is at the root of the abuses in advertising. If the individual lawyer were permitted to compete with his fellows in publicity through advertising, we have no doubt that Mr. Ilewitt’s three points, quoted aboye, would accurately forecast the result." Jacksonville Bar Ass’n v. Wilson, 102 So.2d 292, 294-95 (Fla. 1958).
EC 2-10 Methods of advertising that are subject to the objections stated aboye 25 should be and are prohibited.26 However, the Disciplinary Rules recognize the value of giving assistance in the selection process through forms of advertising that furnish identification of a lawyer while avoiding such objections. For example, a lawyer may be identified in the classified section of the telephone directory,27 in the office building directory, and on his letterhead and professional card.25 But at all times the permitted notices should be dignified and accurate.
EC 2-11 The name under which a lawyer con-ducts his practice may be a factor in the selection process.29 The use of a trade name or an assumed name could mislead laymen concerning the identi-ty, responsibility, and status of those practicing thereunder.30 Accordingly, a lawyer in private practice should practice only under his own name, the name of a lawyer employing him, a partner-ship name composed of the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, in the name of a professional legal corporation, which should be clearly designat-ed as such. For many years some law firms have used a firm name retaining one or more names of deceased or retired partners and such practice is not improper if the firm is a bona fide successor of a firm in which the deceased or retired person was a member, if the use of the name is authorized by law or by contract, and if the public is not mis-led thereby.34 However, the name of a partner
23 See ABA Canon 27.
26 Cf. ABA Opinions 309 (1963) and 284 (1951).
27 Cf. ABA Opinions 313 (1964) and 284 (1951).
28 See ABA Canon 27.
29 Cf. ABA Opinion 303 (1961).
30 See ABA Canon 33.
3, Id.
"The continued use of a firm name by one or more sur-viving partners after the death of a member of the firm whose name is in the firm title is expressly permitted by the Canons of Ethics. The reason for this is that all of the partners have by their joint and severa! efforts over a period of years contributed to the good will attached to the firm name. In the case of a firm having widespread connections, this good will is disturbad by a change in firm name every time a name partner dies, and that re-flects a loss in some degree of the good will to the building up of which the surviving partners have contributed their time, skill and labor through a period of years. To avoid this loss the firm name is continued, and to meet the re-quirements of the Canon the individuals constituting the firm from time to time are listad." ABA Opinion 267 (1945).
"Accepted local custom in New York recognizes that the name of a law firm does not necessarily Identify the in-dividual members of the firm, and hence the continued use of a firm name after the death of one or more partners is not a deception and is permissible. . . . The continued use of a deceased partner’s name in the firm title is not affected by the fact that another partner withdraws from the firm and his name is dropped, or the name of the new partner is added to the firm name." Opinion No. 45, Com-mittee on Professional Ethics, New York State Bar Ass’n, 39 N. Y.St. B. J. 455 (1967).
Cf. ABA Opinion 258 (1943).
who withdraws from a firm but continues to prac-tice law should be omitted from the firm name in order to avoid misleading the public.
EC 2-12 A lawyer occupyIng a judicial, legisla-tive, or public executive or administrative position who has the right to practice law concurrently may allow his name to remain in the name of the firm if he actively continues to practice law as a mem-ber thereof. Otherwise, his name should be re-moved from the firm name,32 and he should not be identified as a past or present member of the firm; and he should not hold himself out as being a practicing lawyer.
EC 2-13 In order to avoid the possibility of mis-leading persons with whom he deals, a lawyer should be scrupulous in the representation of his professional status.33 He should not hold himself out as being a partner or associate of a law firm if he is not one in fact,34 and thus should not hold himself out as a partner or associate if he only shares offices with another lawyer.35
EC 2-14 In some instances a lawyer confines his practice to a particular field of law.36 In the ab-sence of state controls to insure the existente of special competente, a lawyer should not be per-mitted to hold himself out as a specialist 37 or as having special training or ability, other than in the historically excepted fields of admiralty, trade-mark, and patent law.38
32 Cf. ABA Canon 33 and ABA Opinion 315 (1965).
33 Cf. ABA Opinions 283 (1950) and 81 (1932).
34 See ABA Opinion 316 (1967).
35 "The word ‘associates’ has a variety of meanings. Principally through custom the word when used on the letterheads of law firms has come to be regarded as de-scribIng those who are employees of the firm. Because the word has acqulred this special significante in connec-tIon with the practice of the law the use of the word to describe lawyer relationships other than employer-employee is likely to be misleading." In re Sussman and Tanner, 241 Ore. 246, 248, 405 P.2d 355, 356 (1965),
According to ABA Opinion 310 (1963), use of the term "associates" would be misleading in two situations : (1) where two lawyers are partners and they share both re-sponsibility and liability for the partnership; and (2) where two lawyers practice separately, sharing no responsi-bility or liability, and only share a suite of offices and some costs.
36 "For a long time, many lawyers have, of necessity, limited their practice to certain branches of law. The increasing complexity of the law and the demand of the public for more expertness on the part of the lawyer has, in the past few years—particularly in the last ten years-brought about specialization on an increasing scale." Re-port of the Special Committee on Specialization and Specialized Legal Services, 79 A.B.A.Rep. 582, 584 (1954).
37 "In varying degrees specialization has become the modus operandi throughout the legal profession. . . . American society is speciallzation conscious. The present Canons, however, do not allow lawyers to make known to the lay public the fact that they engage in the practice of a specialty. . . ." Tucker, The Large Law Firm: Considerations Concerning the Modernization of the Canoas of Professional Ethics, 1965 Wis.L.Rev. 344, 348-49 (1965).
33 See ABA Canon 27.
EC 2-15 The legal profession has developed law-yer referral systems designed to aid individuals who are able to pay fees but need assistance in locating lawyers competent to handle their par-ticular problems. Use of a lawyer referral system enables a layman to avoid an uninformed selection of a lawyer because such a system makes possible the employmént of competent lawyers who have indicated an interest in the subject matter in-volved. Lawyers should support the principie of lawyer referral systems and should encourage the evolution of other ethical plans which aid in the selection of qualified counsel.
Financial Ability to Employ Counsel: Generally EC 2-16 The legal profession cannot remain a viable force in fulfilling its role in our society un-less its members receive adequate compensation for services rendered, and reasonable Lees 39 should be charged in appropriate cases to clients able to pay them. Nevertheless, persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services,40 and lawyers should support and participate in ethical activities designed to achieve that objective.41
Financial Ability to Employ Counsel: Persons Able to Pay Reasonable Fees
EC 2-17 The determination of a proper fee re-quires consideration of the interests of both client and lawyers.42 A lawyer should not charge more than a reasonable fee,43 for excessive cost of legal service would deter laymen from utilizing the legal system in protection of their rights. Furthermore, an excessive charge abuses the professional rela-tionship between lawyer and client. On the other hand, adequate compensation is necessary in order to enable the lawyer to serve his client effectively and to preserve the integrity and independence of the profession.44
EC 2-18 The determination of the reasonableness of a fee requires consideration of all relevant cir-curnstances,45 including those stated in the Dis-ciplinary Rules. The fees of a lawyer will vary ac-cording to many factors, including the time re-quired, his experience, ability, and reputation, the
39 See ABA Canon 12. 4o Cf. ABA Canon 12.
41 "If there is any fundamental proposition of govern-ment on which all would agree, it is that one of the highest goals of society must be to achieve and maintain equality before the law. Yet this ideal remains an empty form of words unless the legal profession is ready to provide ade-quate representation for those unable to pay the usual fees." Professional Representation: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
42 See ABA Canon 12.
43 Cf. ABA Canon 12.
44 "When members of the Bar are induced to render legal services for inadequate compensation, as a consequence the quality of the service rendered may be lowered, the welfare of the profession injured and the administration of justice made less efficient." ARA Opinion 302 (1961).
Cf. ABA Opinion 307 (1962).
45 See ABA Canon 12.
nature of the employment, the responsibility in-volved, and the results obtained It is a com-mendable and long-standing tradition of the bar that special consideration is given in the fixing of any fee for services rendered a brother lawyer or a member of his immediate family.
EC 2-19 As soon as feasible after a lawyer has been employed, it is desirable that he reach a clear agreement with his client as to the basis of the fee charges to be made. Such a course will not only prevent later misunderstanding but will also work for good relations between the lawyer and the client. It is usually beneficial to reduce to writing the understanding of the parties regarding the fee, particularly when it is contingent. A law-yer should be mindful that many persons who de-sire to employ him may have had little or no ex-perience with fee charges of lawyers, and for this reason he should explain fully to such persons the reasons for the particular fee arrangement he proposes.
EC 2-20 Contingent fee arrangements 47 in civil cases have long been commonly accepted in the United States in proceedings to enforce claims. The historical bases of their acceptance are that (1) they often, and in a variety of circumstances, provide the only practical means by which one having a claim against another can economically afford, finance, and obtain the services of a com-petent lawyer to prosecute his claim, and (2) a successful prosecution of the claim produces a res out of which the fee can be paid.48 Although a lawyer generally should decline to accept employ-ment on a contingent fee basis by one who is able to pay a reasonable fixed fee, it is not necessarily improper for a lawyer, where justified by the par-ticular circumstances of a case, to enter into a con-tingent lee contract in a civil case with any client who, after being fully informed of all relevant fac-tors, desires that arrangement. Because of the human relationships involved and the unique char-acter of the proceedings, contingent fee arrange-ments in domestic relation cases are rarely justi-fied. In administrative agency proceedings con-tingent fee contracts should be governed by the same considerations as in other civil cases. Public policy properly condemns contingent fee arrange-ments in criminal cases, largely on the ground that
47 Sea ABA Canon 13; see also Mackinnon, Contingent Fees for Legal Services (1964) (A report of the American Bar Foundation).
"A contract for a reasonable contingent fee where sanc-tioned by law is permitted by Canon 13, but the client must remain responsible to the lawyer for expenses ad-vanced by the latter. ‘There is to be no barter of the privilege of prosecuting a cause for galn in exchange for the promise of the attorney to prosecute at his own ex-pense.’ (Cardozo, C. J. in Matter of Gilman, 251 N.Y. 265, 270-271.)" ABA Opinion 246 (1942).
4s See Comment, Providing Legal Services for the Middle Class in Civil Matters: The Problem, the Duty and a So-lution, 26 U.Pitt.L.Rev. 811, 829 (1965).
legal services in criminal cases do not produce a res with which to pay the fee.
EC 2-21 A lawyer should not accept compensa-tion or any thing of value incident to his employ-ment or services from one other than his client without the knowledge and consent of his client after full disclosure.49
EC 2-22 Without the consent of his client, a law-yer should not associate in a particular matter an-other lawyer outside his firm. A fee may prop-erly be divided between lawyers 5o properly as-sociated if the division is in proportion to the serv-ices performed and the responsibility assumed by each lawyer 51 and if the total fee is reasonable.
EC 2-23 A lawyer should be zealous in his ef-forts to avoid controversies over fees with clients 52 and should attempt to resolve amicably any differ-ences on the subject.53 He should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client.54
49 See ABA Canon 38.
"Of course, as . . . [Informal Opinion 679] points out, there must be full disclosure of the arrangement [that an entity other than the client pays the attorney’s fee]
by the attorney to the client . . " ABA Opinion 320 (1968).
50 "Only lawyers may share in . . . a division of
fees, but . it is not necessary that both lawyers be admitted to practice in the same state, so long as the divi-sion was based on the division of services or responsibili-ty." ABA Opinion 316 (1967).
51 See ABA Canon 34.
"We adhere to our previous rulings that where a lawyer merely brings about the employment of another lawyer but renders no service and assumes no responsibility in the matter, a division of the latter’s fee is improper. (Opinions 18 and 153).
"It is assumed that the bar, generally, understands what acts or conduct of a lawyer may constitute ‘services’ to a client within the intendment of Canon 12. Such acts or conduct invariably, if not always, involve ‘responsibility’ on the part of the lawyer, whether the word ‘responsibili-ty’ be construed to denote the possible resultant legal or moral liability on the part of the lawyer to the client or to others, or the onus of deciding what should or should net be done in behalf of the client. The word ‘services’ in Canon 12 must be construed in this broad sense and may apply to the selection and retainer of associate counsel as well as to other acts or conduct in the client’s behalf." ABA Opinion 204 (1940).
52 See ABA Canon 14.
53 Cf. ABA Opinion 320 (1968).
54 See ABA Canon 14.
"Ours is a learned profession, not a mere money-getting
trade. . . . Suits to collect fees should be avoided. Only where the circumstances imperatively require, should resort be had to a sult to compel payment. And where a lawyer does resort to a suit to enforce payment of fees which involves a disclosure, he should carefully avoid any disclosure not clearly necessary to obtaining or defending bis rlghts." ABA Opinion 250 (1943).
But cf. ABA Opinion 320 (1968).
Financial Ability to Employ Counsel: Persons Unable to Pay Reasonable Fees
EC 2-24 A layman whose financial ability is not sufficient to permit payment of any fee cannot obtain legal services, other than in cases where a contingent fee is appropriate, unless the services are provided for him. Even a person of moderate means may be unable to pay a reasonable fee which is large because of the complexity, novelty, or difficulty of the problem or similar factors.55
EC 2-25 Historically, the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the lile of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the dis-advantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need.58 Thus it has been necessary for the
55 "As a soclety increases In size, sophistication and tech-nology, the body of laws which is required to control that soclety also Increases in size, scope and complexity. With this growth, the law dlrectly affects more and more facets of individual behavior, creating an expanding need for legal services on the part of the individual members of the soclety. . . . As legal guidance In social and commer-cial behavior increasingly becomes necessary, there will come a concurrent demand from the layman that such guidance be made available to him. This demand will not come from those who are able to employ the best of legal talent, nor from those who can obtain legal assistance at little or no cost. It will come from the large ‘forgotten middle income class,’ who can neither afford to pay pro-portionately large fees nor qualif y for ultra-low-cost serv-ices. The legal profession must recognize this inevitable demand and consider methods whereby it can be satisfied. If the profession fails to provide such methods, the laity will." Comment, Providing Legal Services for the Middle Class in Civil Matters: The Problem, the Duty and a Solution, 26 U.Pitt.L.Rev. 811, 811-12 (1965).
"The issue is not whether we shall do something or do nothing. The demand for ordinary everyday legal justice Is so great and the moral nature of the demand is so strong that the issue has become whether we devise, maintain, and support suitable agencies able to satisfy the demand or, by our own default, force the government to take over the job, supplant us, and ultimately dominate us." Sinith, Legal Service Offices for Persons of Moderate Means, 1949 Wis.L.Rev. 416, 418 (1949).
56 "Lawyers have peculiar responsibilities for the just ad-ministration of the law, and these responsíbilities include providing advice and representation for needy persons. To a degree not always appreciated by the public at large, the bar has performed these obligations with zeal and devotion. The Committee is persuaded, however, that a system of justice that attempts, in mid-twentieth century America, to meet the needs of the financially incapacitated accused through primary or exclusive reliance on the uncompensat-ed services of counsel will prove unsuccessful and inade-
profession to institute additional programs to pro-vide legal services.57 Accordingly, legal aid of-fices,58 lawyer referral services,59 and other relat-ed programs have been developed, and others will be developed, by the profession.69 Every lawyer should support all proper efforts to meet this need for legal services.61
guate. . . A system of adequate representation, there-
fore, should be structured and financed in a manner re-flecting its public importance. . . . We believe that fees for private appointed counsel should be set by the court within maximum limits established by the statute." Report of the Att’y Gen’s Comm. on Poverty and the Ad-ministration of Criminal Justice 41-43 (1963).
57 "At present this representation [of those unable to pay usual fees] 1s being supplied in some measure through the spontaneous generosity of Individual lawyers, through legal aid societies, and—increasingly—through the organized ef-forts of the Bar. If those who stand in need of this serv-ice know of Its avallability and their need ls in fact ade-quately met, the precise mechanism by which this service ls provided becomes of secondary importance. It is of great importance, however, that both the impulse to ren-der this service, and the plan for making that Impulse effective, should arise within the legal profession Itself." Professional Responsibility: Report of the Joint Confer-ence, 44 A.B.A.J. 1159, 1216 (1958).
58 "Free legal clinics carrled on by the organized bar are not ethically objectionable. On the contrary, they serve a very worthwhile purpose and should be encouraged." ABA Opinion 191 (1939).
59 "We are of the opinlon that the [lawyer referral] plan here presented does not fall within the inhibition of the Canon. No solicitation for a particular lawyer Is in-volved. The dominant purpose of the plan Is to provide as an obligation of the profession competent legal services to persons in low-income groups at fees within their ability to pay. The plan is to be supervised and directed by the local Bar Association. There is to be no advertisement of the names of the lawyers constituting the panel. The general method and purpose of the plan only is to be ad-vertised. Persons seeking the legal services- will be direct-ed to members of the panel by the Bar Association. Asíde from the filing of the panel with the Bar Association, there is to be no advertisement of the names of the lawyers constituting the panel. If these limitations are observed, we think there is no solicitation of business by or for par-ticular lawyers and no violation of the inhibition af Canon 27." ABA Opinion 205 (1940).
60 "Whereas the American Bar Association believes that it is a fundamental duty of the bar to see to it that all persons requiring legal advice be able to attain it, irrespec-tive of their economic status . .
"Resolved, that the Association approves and sponsors the setting up by state and local bar associations of lawyer referral plans and low-cost legal service methods for the purpose of dealing with cases of persons who might not
otherwise have the benefit of legal advice . Pro- ceedings of the House of Delegates of the American Bar Association, Oct. 30, 1946, 71 A.B.A.Rep. 103, 109-10 (1946).
81 "The defense of indigent citizens, without compensa-tion, is carried on throughout the country by lawyers rep-resenting legal aid societies, not only with the approval, but with the commendation of those acquainted with the work. Not infrequently services are rendered out of sympathy or for other philanthropic reasons, by individual lawyers who do not represent legal aid societies. There is nothing whatever in the Canons to prevent a lawyer
Acceptance and Retention of Employment
EC 2-26 A lawyer is under no obligation to act as adviser or advocate for every person who may wish to become his client; but in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline prof-fered employment. The fulfillment of this objec-tive requires acceptance by a lawyer of his share of tendered employment which may be unattractive both to him and the bar generally.62
EC 2-27 History is replete with instances of dis-tinguished and sacrificial services by lawyers who have represented unpopular clients and causes. Regardless of his personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse.63
EC 2-28 The personal preference of a lawyer to avoid adversary alignment against judges, other lawyers,64 public officials, or influential members of the community does not justify his rejection of tendered employment.
EC 2-29 When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain coun-sel, whether for financial or other reasons, he should not seek to be excused from undertaking
from performing such an act, nor should there., be." ABA Opinion 148 (1935).
62 But cf. ABA Canon 31.
63 "One of the highest services the lawyer can render to society is to appear in court on behalf of clients whose causes are in disfavor with the general public." Profession-al Responsibility: Report of the Joint Conference, 44 A.B. A.J. 1159, 1216 (1958).
One author proposes the following proposition to be in-cluded in "A Proper Oath for Advocates" : "I recognize that it Is sometimes difficult for clients with unpopular causes to obtaln proper legal representation. I will do all that I can to assure that the client with the unpopular cause is properly represe/Ved. and that the lawver renre-senting such a client recelves credit from and support of the bar for handling such a matter." Thode, The Ethical Standard for the Advocate, 39 Texas L.Rev. 575, 592 (1961).
"§ 6068. . . . It is the duty of an attorney
"(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed." Cal.Business and Professions Code § 6068 (West 1962). Virtually the same language ís found In the Oregon stat-utes at Ore.Rev.Stats. Ch. 9 § 9.460(8).
See Rostow, The Lawyer and His Client, 48 A.B.A.J. 25 and 146 (1962).
64 See ABA Canons 7 and 29.
"We are of the opinion that It is not professionally im-proper for a lawyer to accept employment to compel an-other lawyer to honor the just claim of a layman. On the contrary, it is hlghly proper that he do so. Unfortunately, there appears to be a widespread feeling among laymen that lt is difficult, If not impossible, to obtain justice when they have claims agalnst members of the Bar because other lawyers will not accept employment to proceed against them. The honor of the profession, whose members proud-ly style themselves offlcers of the court, must surely be sullied if its members bind themselves by custom to refrain from enforcing just claims of laymen against lawyers." ABA Opinion 144 (1935).
the representation except for compelling reasons.65 Compelling reasons do not include such factors as the repugnance of the subject matter of the pro-ceeding, the identity 66 or position of a person in-volved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty,67 or the belief of the lawyer regarding the merits of the civil case.68
EC 2-30 Employment should not be accepted by a lawyer when he is unahle to render competent service 69 or when he knows or it is obvious that the person seeking to employ him desires to in-stitute or maintain an action merely for the pur-pose of harassing or maliciously injuring another.70 Likewise, a lawyer should decline employment if the intensity of his personal feeling, as distin-guished from a community attitude, may impair his effective representation of a prospective client. If a lawyer knows a client has previously obtained counsel, he should not accept employment in the matter unless the other counsel approves 71 or withdraws, or the client terminates the prior em-ployment.72
EC 2-31 Full availability of legal counsel requires both that persons be able to obtain counsel and that lawyers who undertake representation complete the work involved. Trial counsel for a convicted defendant should continue to represent his client by advising whether to take an appeal and, if the appeal is prosecuted, by representing him through the appeal unless new counsel is substituted or withdrawal is permitted by the appropriate court.
65 ABA Canon 4 uses a slightly different test, saying, "A lawyer assigned as counsel for an indigent prisoner ought
not to ask to be excused for any trivial reason . .." 66 Cf. ABA Canon 7.
67 See ABA Canon 5.
68 Dr. Johnson’s reply to Boswell upon being asked what he thought of "supporting a cause which you know to be bad" was : "Sir, you do not know it to be good or bad till the Judge determines it. I have said that you are to state facts fairly ; so that your thinking, or what you call knowing, a cause to be bad, must be from reason-ing, must be from supposing your arguments to be weak and inconciusive. But, Sir, that is not enough. An argu-ment which does not convince yourself, may convince the Judge to whom you urge it; and if it does convince him, why, then, Sir, you are wrong, and he is right." 2 Bos-well, The Life of Johnson 47-48 (Hill ed. 1887).
69 "The lawyer deciding whether to undertake a case must be able to judge objectively whether he Is capable of handling it and whether he can assume lts burdens without prejudice to prevlous commitments. . . ." Prof essional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1158, 1218 (1958).
70 "The lawyer must decline to conduct a civil cause or to make a defense when convinced that ít is Intended mere-lytOharass or to injure the opposite party or to work oppression or wrong." ABA Canon 30.
71 See ABA Canon 7.
n id.
"From the facts stated we assume that the client has discharged the first attorney and given notíce of the dis-charge. Such being the case, the second attorney may properly accept employment. Canon 7; Opinions
EC 2-32 A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances 73, and in a matter pending before a tribunal he must comply with the rules of the tribunal regarding withdrawal. A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse ef-fect on the rights of his client and the possibility of prejudice to his client 74 as a result of his withdrawal. Even when he justifiably withdraws, a lawyer should protect the welfare of his client by giving due notice of his withdrawa1,75 suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm. Further, he should refund to the client any compensation not earned during the employment.76
EC 2-33 Several Supreme Court decisions ap-parently give Constitutional protection to certain organizations which furnish certain legal services to their members under legal service plans which do not provide free choice in the selection of at-torneys.* The basic tenets of the profession, ac-cording to EC 1-1 are independence, integrity and competence of the lawyer and total devotion to the interests of the client.** There is substantial
73 See ABA Canon 44.
will carefully consider, before taking a case, whether it appears that I can fully represent the client within the framework of law. If the decision is ín the affirmative, then it will take extreme circumstances to cause me to de-cide later that I cannot so represent him." Thode, The, Ethical Standard for the Advocate, 39 Texas L.Rev. 575, 592 (1961) (from "A Proper Oath for Advocates").
74 ABA Opinion 314 (1965) held that a lawyer should not disassociate himself from a cause when "it le obvious that the very act of disassociation would have the effect of vio-lating Canon .97."
75 ABA Canon 44 enumerates instances in which ". . . the lawyer may be warranted in wIthdrawing on due no-tice to the client, allowing him time to employ another lawyer."
76 See ABA Canon 44.
*United Transportation Union v. State Bar of Michi-gan, 401 U.S. 576, 28 L.Ed.2d 339, 91 S.Ct. 1076 (1971); United Mine Workers v. Illinois State Bar Association, 389 U.S. 217, 19 L.Ed.2d 426, 88 S.Ct. 353 (1967); Brother-hood of Railroad Trainmen v. Virginia, 377 U.S. 1, 12 L.Ed.2d 89, 84 S.Ct. 1113 (1964) ; NAACP v. Button, 371 U.S. 415, 9 L.Ed.2d 405, 83 S.Ct. 328 (1963).
* *"The very nature of the lawyer’s profession necessi-tates the utmost good faith toward his client and the highest loyalty and devotion to his client’s interest.”; In Re Thomasson’s Estate, 346 Mo. 911, 918, 144 S.W.2d 79, 80 (1940).
"The relation between attorney and client is highly fiduciary and of very delicate, exacting and confiden-tial character, requiring very high degree of fidelity and good faith on attorney’s part."; Laughlin v. Boatmen’s Nat. Bank of St. Louis, 163 S.W.2d 761, 762 (1942).
"The relation of an attorney to his client is pre-eminently confidential. It demands on the part of the attorney undivided allegiance, a conspicuous degree of falthfulness and disinterestedness, absolute integrity and utter renunciation of every personal advantage conflictingBlack’s Law Dictionary 4th Ed. Rey.
danger that lawyers rendering services under le-gal service plans which do not permit the bene-ficiarles to select their own attorneys will not be able to meet these standards. The independence of the lawyer may be seriously affected by the fact that he is employed by the group and by vir-tue of that employment cannot give his full devo-tion to the interest of the member he represents. The group which employs the attorney will in-evitably have the characteristic of a "lay inter-mediary" because of its control over the attorney inherent in the employment relationship. It is probably that attorneys employed by groups will be dirocted as to what cases they may handle and in the manner in which they handle the cases referred to them. It is also possible that the standards of the profession and quality of legal service to the public will suffer because considera-tion for economy rather than experience and com-petence will determine the attorneys to be em-ployed by the group. An attorney interested in maintaining the historie traditions of the profes-sion and preserving the function of a lawyer as a trusted and independent advisor to individual members of society should carefully consider the risks involved before accepting employment by groups under plans which do not provide their members with a free choice of counsel.
DISCIPLINARY RULES
DR 2-101 Publicity in Genera1.77
(A) A lawyer shall not prepare, cause to be pre-pared, use, or participate in the use of, any forra of public communication that contains professionally self-laudatory statements cal-culated to attract lay clients; as used herein, "public communication" includes, but is not Ilmited to, communication by means of tele-vision, radio, motion picture, newspaper, mag-azine, or book.
(B) A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer af-filiated with him or his firm, as a lawyer through newspaper or magazine advertise-ments, radio or television announcements, dis-play advertisements in city or telephone di-rectories, or other means of commercial pub-licity7,8nor shall he authorize or permit others to do so in his behalf,"except that a lawyer
client." ; State Bar Association of Connecticut v. Con-necticut Bank & Trust Co., 145 Conn. 222, 234, 140 A.2d 863, 864, 69 A.L.R.2d 394, 402 (1958).
77 Cf. ABA Canon 27; see generally ABA Opinion 293 (1957).
79 Cf. ABA Opinions 133 (1935), 116 (1934), 107 (1934), 73 (1932), 59 (1931), and 43 (1931).
79 "There can be no justification for the participation and acquiescence by an attorney in the development and publication of an article which, on its face, plainly amounts to a self-interest and unethical presentation of his achieve-ments and capabilities." Matter of Connelly, 18 App.Div. 2d 466, 478, 240 N.Y.S.2d 126, 138 (1963).
recommended by, paid by, or whose legal ser-vices are furnished by, any of the offices or organizations enumerated in DR 2-103(D) (1) through (5) may authorize or permit or as-sist such organization to use such means of commereial publicity, which does not identify any lawyer by name, to describe the avail-ability or nature of its legal services or legal service benefits. This rule does not prohibit limited and dignified identification of a law-yer as a lawyer as well as by name: 8°
(1) In political advertisements when his professional status is germane to the political campaign or to a political is-sue.
(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients 8′
(3) In routine reports and announcements of a bona fide business, civic, profes-sional, or political organization in whieh he serves as a director or offieer.
(4) In and on legal documents prepared by him.
(5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof.
(6) In private communications by any of the offices or organizations enumerated in DR 2-103(D) (1) through (5), along with the biographical information per-mitted under DR 2-102(A) (6), in re-sponse to inquiries from a member or beneficiary of such office or organiza-tion.
(C) A lawyer shall not compensate or give any thing of value to representatives of the press,
"An announcement of the fact that the lawyer had re-signed and the name of the person to succeed him, or take over his work, would not be objectionable, either as an official communication to those ernployed by or connected with the administrative agency or instrumentality [that had employed him], or as a news release.
"But to include therein a statement of the lawyer’s ex-perience in and acquaintance with the various departments and agencies of the government, and a laudation of his legal ability, either generally or in a special branch of the law, is not only bad taste but ethically lmproper.
"It can have but one primary purpose or object : to aid the lawyer in securing professional employment in private practice by advertising his professional experience, attain-ments and ability." ABA Opinion 184 (1938).
Cf. ABA Opinions 285 (1951) and 140 (1935).
SO "The question is always . . whether under the
circumstance the furtherance of the professional employ-ment of the lawyer is the primary purpose of the adver-tisement, or is merely a necessary incident of a proper and legitimate objective of the client which does not have the effect of unduly advertising him." ABA Opinion 290 (1956).
See ARA Opinion 285 (1951).
el sea ARA Opinions 299 (1961), 290 (1956), 158 (1936), and 100 (1933) ; cf. ABA Opinion 80 (1932).
radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item.82
DR 2-102 Professional Notices, Letterheads, Of-fices, and Law Lists.
(A) A lawyer or law firm shall not use profession-al cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices,83 ex-cept that the following may be used if they are in dignified form:
(1) A professional card of a lawyer identi-fying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, and any information permitted under DR 2-105. A professional card of a law firm may also give the names of mem-bers and associates. Such cards may be used for identification 84 but may not be published in perlodicals, maga-zines, newspapers,85 or other media.86
(2) A brief professional announcement card stating new or changed associations or addresses, change of firm name, or simi-lar matters pertaining to the profes-sional office of a lawyer or law firm, which may be mailed to lawyers, clients, formen clients, personal friends, and relatives.87 It shall not state bio-graphical data except to the extent rea-sonably necessary to identify the law-yer or to explain the change in his association, but it may state the im-mediate past position of the lawyer.88 It may give the names and dates of predecessor firms in a continuing line of succession. It shall not state the
"Rule 2.
"[A] member of the State Bar shall not soliclt pro-fessional employment by . .
"(4) The making of gifts to representatives of the press, radio, television or any medium of communica-tion in anticipation of or in return for publicity." CaI.Business and Professions Code § 6076 (West 1962).
83 Cf. ABA Opinions 233 (1941) and 114 (1934).
84 See ABA Opinion 175 (1938).
85 See ABA Opinions 260 (1944) and 182 (1938).
se But cf. ABA Opinions 276 (1947) and 256 (1943).
87 See ABA Opinion 301 (1961).
88 "[I]t has become commonplace for many lawyers tú participate in government service; to deny them the right, upon their return to private practice, to refer to their prior employment in a brief and dignified manner, would place an undue limitation upon a large element of our profes-sion. It is entirely proper for a member of the profession to explain his absence from private practice, where such Is the primary purpose of the announcement, by a brief and dignified reference to the prior employment.
. [A]ny such announcement should be limited to the immediate past connectlon of the lawyer with the gov-ernment, made upon his leaving that posltion to enter pri-vate practice." ABA Opinion 301 (1961).
nature of the practice except as per-mitted under DR 2-105.89
(3) A sign on or near the door of the office and in the building directory identifying the law office. The sign shall not state the nature of the practice, except as permitted under DR 2-105.
(4) A letterhead of a lawyer identifying him by name and as a lawyer, and giv-ing his addresses, telephone numbers, the name of his law firm, associates, and any information permitted under DR 2-105. A letterhead of a law firm may also give the names of members and associates,90 and names and dates relating to deceased and retired mem-bers.91 A lawyer may be designated "Of Counsel" on a letterhead if he has a continuing relationship with a law-yer or law firm, other than as a partner or associate. A lawyer or law firm may be designated as "General Coun-sel" or by similar professional refer-ence on stationery of a client if he or the firm devotes a substantial amount of professional time in the representa-tion of that client.92 The letterhead of a law firm may give the narres and dates of predecessor firms in a con-tinuing fine of succession.
(5) A listing of the office of a lawyer or law firm in the alphabetical and classified sections of the telephone di-rectory or directories for the geographi-cal area or arcas in which the lawyer resides or maintains offices or in which a significant part of his clientele re-sides 93 and in the city directory of the city in which his or the firm’s office is located; 94 but the listing may give only the name of the lawyer or law firm, the fact he is a lawyer, addresses, and telephone numbers.95 The listing shall not be in distinctive form 90 or
99 See ABA Opinion 251 (1943).
90 "Those lawyers who are working for an individual lawyer or a law firm may be designated on the letterhead and in other appropriate places as ‘associates’." ABA Opinion 310 (1963).
91 See ABA Canon 33.
92 But seo ABA Opinion 285 (1951).
93 See ABA Opinion 295 (1959).
94 But see ABA Opinion 313 (1964) which says the Corn-mittee "approves a listing in the classified section of the city directory for lawyers only when the listing Includes all lawyers residing in the community and when no charge is made therefor.-
95 "The listing should consist only of the lawyer’s name, address and telephone number." ABA Opinion 313 (1964).
90 "[A]dding to the regular classified listing a ‘second line’ in which a lawyer claims that he Is engaged in a ‘specialty’ is an undue attempt to make his name distinc-tive." ABA Opinion 284 (1951).
type.97 A law firm may have a listing in the firm name separate from that of its members and associates 98 The list-ing in the classified section shall not be under a heading or classification other than "Attorneys" or "Lawyers",99 except that additional headings or clas-sifications descriptive of the types of practice referred to in DR 2-105 are permitted.100
(6) A listing in a reputable law list 101 or legal directory giving brief biographical and other informativo data. A law list or directory is not reputable if its management or contents are likely to be misleading or injurious to the public or to the profession.102 A law list is concluslvely established to be reputable 1f it is certified by the American Bar Association as being in compliance with its roles and standards. The pub-lished data may include only the follow-ing: name, including name of law firm and names of professional associates; addresses 703 and telephone numbers; one or more fields of law in which the lawyer or law firm concentrates; 104 a
97 "[Opinion 284] held that a lawyer could not with pro-priety have his name Usted in distlnctive type ln a tele-phone directory or city directory. We afflrm that opin-ion," ABA Opinion 313 (1964).
See ABA Opinions 123 (1934) and 53 (1931).
98 "[I]f a lawyer Is a member of a law firm, both the firm, and the individual lawyer may be Usted separately." ABA Opinion 313 (1964).
99 See ABA Opinion 284 (1951).
loe See Silverman v. State Bar of Texas, 405 F.2d 410, (5th Cir. 1968); but seo ABA Opinion 286 (1952).
une,. ABA Canon 43.
102 Cf. ABA Opinion 255 (1943).
103 "We are asked to define the word ‘addresses’ appear-ing in the second paragraph of Canon 27 , .
"It is our opinlon that an address (other than a cable address) within the intendment of the canon is that of the lawyer’s office or of bis residence. Nelther address should be misleading. If, for example, an office address Is given, lt must be that of a bona fide office. The residence ad-dress, if given, should be identified as such if the city or other place of residence is not the same as that in which the law office is located." ABA Opinion 249 (1942).
los "[T]oday in varlous parts of the country Committees on Professlonal Ethics of local and state bar associations are authorizing lawyers to describe themselves in announce-ments to the Bar and in notices in legal periodicals and approved law lists as speclalists in a great variety of things. Thus in the approved law lists or professional announce-ments there appear, in connection with the names of in-dividual practltioners or firms, such designations as ‘In-ternational Law, Publlc and Private’ ; `Trial Preparation in Personal Injury and Negligence Actions’ ; ‘Philippine War Damage Claims’ ; ‘Antl-Trust’ ; ‘Domestic Relations’ ; ‘Tax Law’; ‘Negligence Law’. It would seem that the ABA has given at least its tacit approval to this sort of announcement.
"It is important that this sort of description Is not, in New York at least, permitted on letterheads or shingles or
statement that practice is limited to one or more fields of law; a statement that the lawyer or law firm specializes in a particular field of law or law practice but only if authorized under DR 2-105 (A) (4); 105 date and place of birth; date and place of admission to the bar of state and federal courts; schools attended, with dates of graduation, de-grees, and other scholastic distinctions; public or quasi-public offices; military service; posts of honor; legal author-ships; legal teaching positions; mem-berships, offices, committee assign-ments, and section memberships in bar associations; memberships and offices in legal fraternities and legal societies; technical and professional associations and societies; foreign language ability; names and addresses of references,106 and, with their consent, names of clients regularly represented.107
(B) A lawyer in private practice shall not practice under a trade name, a name that is mislead-ing as to the Identity of the lawyer or lawyers practicing under sueh name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or pro-fessional association may contain "P.C." or "P.A." or similar symbols indicating the na-ture of the organization, and if otherwise law-ful a firm may use as, or continuo to include in, its name, the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession.108 A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm,109 and during such
elsewhere in communications to laymen. This is subject to the single exception that such announcement to laymen is permltted in the four traditional specialties, Admiralty, Patent, Copyright and Trade-mark." Report of the Special Committee on Specialization and Specialized Legal Educa-tion, 79 A.B.A.Rep. 582, 586 (1954).
105 This provislon is included to conform to action taken by the ABA House of Delegates at the Mid-Winter Meet-ing, January, 1969.
105 See ABA Canon 43 and ABA Opinion 119 (1934); but see ABA Opinion 236 (1941).
107 See ABA Canon 27.
tos See ABA Canon 33; cf. ABA Opinions 318 (1967), 267
(1945), 219 (1941), 208 (1940), 192 (1939), 97 (1933), and 6 (1925).
109 ABA Opinion 318 (1967) held, "anything to the con-trary in Formal Opinion 315 or in the other opinions cited notwlthstanding" that : "Where a partner whose name appears in the name of a law firm is elected or appointed to high local, state or federal office, which office he in-tends to occupy only temporarily, at the end of which time
period other members of the firm shall not use his name in the firm name or in profes-sional notices of the firm 110
(C) A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners.111
(D) A partnership shall not be formed or con-tinued between or among lawyers licensed in different jurisdictions maless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdic-tions; 112 however, the same firm name may be used in each jurisdiction.
(E) A lawyer who is engaged both in the practice of law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor shall he iden-tify himself as a lawyer in any publication in connection with his other profession or busi-ness.
(F) Nothing contained herein shall prohibit a law-yer from using or permitting the use, in con-nection with his name, of an earned degree or title derived therefrom indicating his train-ing in the law.
DR 2-103 Recommendation of Professional Em-ployrnent.113
(A) A lawyer shall not recommend employment, as a private practitioner,111 of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer.115
he intends to return to his position with the firm, and provided that he is not precluded by holding such office from engaging in the practice of law and does not in fact sever his relationship with the firm but only takes a leave of absence, and provided that there is no local law, stat-ute or custom to the contrary, his name may be retained in the firm name during his term or terms of office, but only if proper precautions are taken not to mislead the public as to his degree of participation in the firm’s af-fairs."
Cf. ABA Opinion 143 (1935), New York County Opinion 67, and New York City Opinions 36 and 798; but cf. ABA Opinion 192 (1939) and Michigan Opinion 164.
110 Cf. ABA Canon 33.
111 See ABA Opinion 277 (1948); cf. ABA Canon 33 and ABA .Opinions 318 (1967), 126 (1935), 115 (1934), and 106 (1934).
112 see ABA Opinions 318 (1967) and 316 (1967); cf. ABA Canon 33.
113 cf. ABA Canons 27 and 28.
114 "We think it clear that a lawyer’s seekIng employ-ment in an ordinary law office, or appointment to a civil service position, is not prohibited by . . . [Canon 27]." ABA Opinion 197 (1939).
111 "[A] lawyer may not seek from persons not his clients the opportunity tú perform . . . a [legal] check-up." ABA Opinion 307 (1962
(B) Except as permitted under DR 2-103(C), a lawyer shall not compensate or give anything of value to a person or organization to recom-mend or secure his employment 116 by a client, or as a reward for having made a recommen-dation resulting in his employment 117 by a client.
(C) A lawyer shall not request a person or or-ganization to recommend or promote the use of his services or those of his partner or asso-ciate,118 or any other lawyer affiliated with him or his firm, as a private practitioner, ex-cept that:
(1) He may request referrals from a law-yer referral service operated, sponsored, or approved by a bar association rep-resentative of the general bar of the geographical area in which the associa-tion exists and may pay its fees inch dent thereto.119
(2) He may cooperate with the legal ser-vice activities of any of the offices or organizations enumerated hl. DR 2-103
(D) (1) through (5) and may perform legal services for those to whom he was recommended by it to do such work if:
(a) The person to whom the recom-mendation is made is a member or beneficiary of such office or organizations; and
(b) The lawyer remains free to ex-ercise his independent profession-al judgment on behalf of his client without direction or regu-lation by the organization or any person connected with it.
(D) A lawyer shall not knowingly assist a per-son or organization that furnishes, or pays for legal services to others, to promote the use of his services or those of his partner,
no Cf. ABA Opinion 78 (1932).
117 ‘"No financial connection of any kind between the Brotherhood and any lawyer is permissible. No lawyer can properly pay any amount whatsoever to the Brother-hood or any of its departments, officers or members as compensation, reimbursement of expenses or gratuity in connection with the procurement of a case.’ " In re Brotherhood of R. R. Trainmen, 13 I11.2d 391, 398, 150 N.E. 2d 163, 167 (1958), quoted in In re Ratner, 194 Kan 362, 372, 399 P.2d 865, 873 (1965).
See ABA Opinion 147 (1935).
118 "This Court has condemned the practice of ambu-lance chasing through the media of runners and touters. In similar fashion we have with equal emphasis condemned the practice of direct solicitation by a lawyer. We have classified both offenses as serious breaches of the Canons of Ethics demanding severe treatment of the offending lawyer." State v. Dawson, 111 So.2d 427, 431 (Fla. 1959).
119 "Registrants Lof a lawyer referral plan] may be re-quired to contribute to the expense of operating it by a reasonable registration charge or by a rcasonable percent-age of fees collected by them." ABA Opinion 291 (1956).
Cf. ABA Opinion 227 (1941).
XXX
or associate, or any other lawyer affiliated with him or his firm, as a private practition-er, except as permitted in DR 2-101(B). How-ever, this does not prohibit a lawyer, or his partner, or associate, or any other lawyer affiliated with him or his finn, from being employed or paid by, or cooperating with, one of the following offices or organizations that promote the use of his services or those of bis partner, or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, if his independent professional judgment is exercised in behalf of his client without interferente or control by any or-ganization or other person:
(1) A legal aid office or publie defender office:
(a) Operated or sponsored by a duly accredited law school.
(b) Operated or sponsored by a bona fide non-profit community or-ganization.
(c) Operated or sponsored by a gov-ernmental agency.
(d) Operated, sponsored, or approved by a bar association representa-tive of the general bar of the geo-graphical area in which the as-sociation exists.129
(2) A military legal assistance office.
(3) A lawyer referral service operated, sponsored, or approved by a bar asso-ciation representative of the general bar of the geographical area in which the association exists.121
(4) A bar association representative of the general bar of the geographical ama, in which the association exists 122 or an organization operated, sponsored or ap-proved by such a bar association.
(5) Any other organization that furnishes, renders, or pays for legal services to its members or beneficiarles, provided the following eonditions are satisfied: (a) As to such organizations other than a qualified legal assistance organization:
(i) Such organization is not or-ganized for profit and its pri-mary purposes do not include the recommending, furnish-ing, rendering of or paying for legal services.
(ii) Said services must be only in-cidental and reasonably re-
120 Cf. ABA Opinion 148 (1935).
121 Cf. ABA Opinion 227 (1941).
122 "If a bar association has embarked on a program of institutional advertising for an annual legal check-up and provides brochures and reprints, it is not improper to have these available in the lawyer’s office for persons to read and take." ABA Opinion 307 (1962).
Cf. ABA Opinion 121 (1934).
lated to the primary purposes of such organization.
(iii) Such organization or its par-ent or affiliated organization does not derive a profit or commercial benefit from the rendition of legal services by the lawyer.
(1v) The member or beneficiary for whom the legal services are rendered, and not such or-ganization, is recognized as the client of the lawyer in that matter.
(v) Any of the organization’s members or beneficiaries is free to seieet counsel or his or her own choice, provided that if such independent se-lection is made by the client, then such organization, if it customarily provides legal services through counsel it pre-selects, shall promptly re-imburse the member or bene-ficiary in the fair and equita-ble amount said services would have cost such organ-ization if rendered by coun-sel selected by said organiza-tion.
(vi) Such organization is in com-pliance with all applicable laws, rules of court and oth-er legal requirements that govern its operations.
(vii) The lawyer, or his partner,
or associate, or any other law-yer affiliated with him or his firm, shall not have initiated such organization for the pur-pose, in whole or in part, of providing financial or other benefits to him or to them.
(viii) The articles of organization, by-laws, agreement with
counsel, and the schedule of benefits and subscription charges are filed along with any amendments or changes within sixty days of the ef-fective date with the court or other authority having final jurisdiction for the dis-cipline of lawyers within the state, and within sixty days of the end of each fiscal year a financial statement show-ing, with respect to its legal service activities, the income received and the expenses and benefits paid or incurred are filed in the forro such au-thority may prescribe.
(ix) Provided, however, that any non-profit organization which is organized to secure and
protect Constitutionally
guaranteed rights shall be ex-empt from the requirements of (v) and (val.).
(b) As to a qualified legal assistance organization (not described in DR 2-102(D) (1) through (4) ) :
(i) The primary purpose of such organization may be profit or non-profit and it may include the recommending, furnish-ing, rendering of or paying for legal services of all kinds.
(ii) The member or beneficiary, for whom the legal services are rendered, and not such organization, is recognized as the client of the lawyer in the matter.
(iii) Such organization is in com-pliance with ah applicable laws, rules of court and oth-er legal requirements that govern its operations.
(iv) The lawyer, or his partner, or associate, or any other lawyer affiliated with him or his firm, shall not have initi-ated suele organization for the purpose, in whole or in part, of providing financial or oth-er benefits to him or to them.
(E) A lawyer shall not accept employment when he knows or it is obvious that the person who seeks his services does so as a result of con-duct prohibited under this Disciplinary Rule.
DR 2-104 Suggestion of Need of Legal Serv-
ices.124
(A) A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice,’25 except that:
(1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.126
124 ABA Canon 28.
125 Cf. ABA Opinions 229 (1941) and 173 (1937).
126 "It certainly is not improper for a lawyer to advise his regular clients of new statutes, court decisions, and administrative rulings, which may affect the client’s in-terests, provided the communication ís stríctly limited to such information. . . .
"When such communications go to concerns or indi-viduals other than regular clients of the lawyer, they are thinly disguised advertisements for professional employ-ment, and are obviously improper." ABA Opinion 213 (1941).
"It is our opinion that where the lawyer has no reason to believe that he has been supplanted by another lawyer, it is not only his right, but it might even be his duty to advise his client of any change of fact or law which(2) A lawyer may accept employment that results from his participation in activi-tics designed to educate laymen to rec-ognize legal problems, to make selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by a quali-fied legal assistance organization.
(3) A lawyer who is recommended, fur-nished or paid by any of the offices or organizations enumerated in DR 2-103
(D) (1) through (5) may represent a member or beneficiary thereof, to the extent and under the conditions pre-seribed therein. A lawyer whose legal services are currently being recommend-ed, furnished or paid for by a legal as-sistance organization defined in DR 2- 103 (D) (5) (a) may not accept employ-ment as a private practitioner from a member or beneficiary of such a legal assistance organization in any matter not covered by the benefits provided tmder the plan of such organization when such member or beneficiary has been his client under such plan.
(4) Without affecting his right to accept employment, a lawyer may speak pub-licly or write for publication on legal topics 127 so long as he does not em-phasize his own professional experience or reputation and does not undertake to give individual advice.
(5) If success in asserting rights or defens-es of his client in litigation in the nature of a elass action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for the purpose of ob-taining their joInder.129
DR 2-105 Limitation of Practice.129
(A) A lawyer shali not hold himself out publicly as a specialist 130 or as limiting his practice,131 except as permitted under DR 2-102 (A) (6) or as follows:
(1) A lawyer anmitted to practice before the United States Patent Office may use
the designation "Patents," "Patent At-torney," or "Patent Lawyer," or any combination of those terms, on his let-terhead and office sign. A lawyer en-gaged in the trademark practice may use the designation "Trademarks," "Trademark Attorney," or "Trademark Lawyer," or any combination of those terms, on his letterhead and office sign, and a lawyer engaged in the admiralty practice may use the designation "Ad-miralty," "Proctor in Admiralty," or "Admiralty Lawyer," or any combina-tion of those ten-11s, on his letterhead and office sign.132
(2) A lawyer may permit his name to be Usted in lawyer referral service offices according to the fields of law in which he will accept referrals.
(3) A lawyer available to act as a consult-an) to or as an assoeiate of other law-yers in a particular branch of law or legal service may distribute to other lawyers and publish in legal journals a dignified announcement of such avail-ability,133 but the announcement shall not contain a representation of special competence or experience.134 The an-nouncement shall not be distributed to lawyers more frequently than once in a calendar year, but it may be published periodically in legal journals.
(4) A lawyer who is certified as a specialist in a particular field of law or law prac-tice by the authority having jurisdiction under state law over the subject of specialization by lawyers may hold him-self out as such specialist but only in accordance with the rules prescribed by that authority.135
DR 2-106 Fees for Legal Services.139
(A) A lawyer shall not enter finto an agreement for, charge, or collect an illegal or clearly ex-cessive fee.137
112 See ABA Canon 27; cf. ABA Opinion 286 (1952).
132 Cf. ABA Opinion 194 (1939). 134 See ABA Canon 46.
defeat the client’s testamentary purpose as expressed in the will.
“Periodic notices might be sent to the client for whom a lawyer has drawn a will, suggesting that lt might be wise for the client to reexamine his will to determine whether or not there has been any change in hls situation requir-ing a modification of his will." ABA Opinion 210 (1941).
Cf. ABA Canon 28.
127 Cf. ABA Opinion 168 (1937).
128 But cf. ABA Opinion 111 (1934).
129 See ABA Canon 45; cf. ABA Canons 27, 43, and 46.
110 Cf. ABA Op?nions 228 (1941) and 194 (1939).
111 See ABA Opinions 251 (1943) and 175 (1938).
121 This provision is included to conform to action taken by the ABA House of Delegates at the Mid-Winter Meeting, January, 1969.
13s See ABA Canon 12.
117 The charging of a "clearly excessive fee" is a ground for discipline. State ex rel. Nebraska State Bar Ass’n. v. Richards, 165 Neb. 80, 90, 84 N.W.2d 136, 143 (1957). "An attorney has the right to contract for any fee he chooses so long as it is not excessive (see Opinion 190), and this Committee is not concerned with the amount of such fees unless so excessive as to constitute a misapprc-(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudente would be left with a definite and firm convic-tion that the fee is in excess of a reasonable fee. Factors to be considered as guides in de-termining the reasonableness of a fee include the following:
(1) The time and labor required, the novel-ty and difficulty of the questions in-volved, and the skill requisite to per-form the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preelude other em-ployment by the lawyer.
(3) The fee customarily charged In the lo-cality for similar legal services.
(4) The amount involved and the results ob-tained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the profes-sional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contin-gent.138
(C) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for rep-resenting a defendant in a criminal case.139
DR 2-107 Division of Fees Among Lawyers.
(A) A lawyer shall not divide a fee for legal serv-ices with another lawyer who is not a partner
priation of the client’s funds (see Opinion 27)." ABA Opinion 320 (1968).
Cf. ABA Opinions 209 (1940), 190 (1939), and 27 (1930) and State ex rel. Lee v. Buchanan, 191 So.2d 33 (Fla. 1966).
118 Cf. ABA Canon 13; see generally MacKinnon, Con-tingent Fees for Legal Services (1964) (A Report of the American Bar Foundation).
130 "Contingent fees, whether in civil or criminal cases, are a special concern of the law. .
"In criminal cases, the rulo is stricter because of the danger of corrupting justice. The second part of Section 542 of the Restatement [of Contracts] reads: ‘A bargain
to conduct a criminal case . . in consideration of a
prornise of a fee contingent on success is illegal. . . "
Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865, 967 (1959).
"The third area of practice in whlch the use of the con-tingent fee is generally considered to be prohibited is the prosecution and defense of criminal cases. However, there are so few cases, and these are predominantly old, that it is doubtful that there can be said to be any current law
on the subject. . . In the absence of cases on the validíty of contingent fees for defense attorneys, ít is necessary to rely on the consensus among commentators that such a fee is void as against public policy. The nature of criminal practice itself makes unlikely the use of con-tingent fee contracts." MacKinnon, Contingent Fees for Legal Services 52 (1964) (A Report of the American Barin or associate of his law firm or law office, unless:
(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees wlll be made.
(2) The division is made in proportion to the services performed and responsibili-ty assumed by eachmo
(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.141
(B) This Disciplinary Rule does not prohibit pay-ment to a former partner or associate pur-suant to a separation or retirement agree-ment.
DR 2-108 Agreements Restricting the Practice of a Lawyer.
(A) A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termina-tion of a relationship created by the agree-ment, except as a condition to payment of retirement benefits.142
(B) In connection with the settlement of a con-troversy or suit, a lawyer shall not enter into an agreement that restricts his right to prac• tice law.
DR 2-109 Acceptance of Employment.
(A) A lawyer shall not accept employment on be
(2) Present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modi-fication, or reversal of existing law.
DR 2-110 Withdrawal from Employment.144
(A) In General.
(1) If permission for withdrawal from em-ployment is required by the mies of a tribunal, a lawyer shall not withdraw from employment in a proceeding be-fore that tribunal without its permis-sion.
(2) In any event, a lawyer shall not with-draw from employment until he has taken reasonable steps to avoid fore-seeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employ-ment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
(3) A lawyer who withdraws from employ-ment shall refund promptly any part of a fee paid in advance that has not been earned.
(B) Mandatory withdrawal.
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:
(1) He knows or it is obvious that his client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the pur-pose of harassing or maliciously injur-ing any person.
(2) He knows or it is obvious that his con-tinued employment will result in viola-tion of a Disciplinary Rule.145
(3) His mental or physical condition ren-ders it unreasonably difficult for him to carry out the employment effective-ly.
(4) He is discharged by his client.
(C) Permissive withdrawal.146
If DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may
out of spite, or solely for the purpose of harassing or de-
laying another . . ." Cal.Business and Professions Code § 6067 (West 1962).
144 Cf. ABA Canon 44.
145 see also Code of Professional Responstbility, DR 5- 102 and DR 5-105.
146 Cf. ABA Canon 4.
of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in mat-ters involving professional judgment. Where this professional judgment is not involved, non-lawyers, such as court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required.
EC 3-6 A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relation-ship with his client, supervises the delegated work, and has complete professional responsibility for the work product.3 This delegation enables a law-yer to render legal service more economically and efficiently.
EC 3-7 The prohibition against a non-lawyer practicing law does not prevent a layman from representing himself, for then he is ordinarily ex-posing only himself to possible injury. The pur-pose of the legal profession is to make educated legal representation available to the public; but anyone who does not wish to avail himself of such representation is not required to do so. Even so, the legal profession should help members of the public to recognize legal problems and to under-stand why it may be unwise for them to act for themselves in matters having legal consequences.
EC 3-8 Since a lawyer should not aid or en-courage a layman to practice law, he should not practice law in association with a layman or other-
3 "A lawyer can employ lay secretaries, lay investigators, lay detectives, lay researchers, accountants, lay scriveners, nonlawyer draf temen or nonlawyer researchers. In fact, he may employ nonlawyers to do any task for him except counsel clients about law matters, engage directly in the practice of law, appear in court or appear in formal pro-ceedings a part of the judicial process, so long as it is he who takes the work and vouches for it to the client and becomes responsIble to the client." ABA Opinion 316 (1967).
ABA Opinion 316 (1967) also stated that if a lawyer prac-tices law as part of a law firm which includes lawyers from several states, he may delegate tasks to flrm mem-bers In other states so long as he "is the person who, on behalf of the firm, vouched for the work of all of the oth-ers and, with the client and In the courts, did the legal acts deflned by that state as the practice of law."
"A lawyer cannot delegate his professional responsibility to a law student employed in his office. He may avail himself of the assistance of the student in many of the fields of the lawyer’s work, such as examination of case law, finding and Interviewing witnesses, making collections of claims, examining court records, delivering papers, conveying Important messages, and other similar matters. But the student is not permitted, until he Is admitted to the Bar, to perform the professional functions of a lawyer, such as conducting court trials, giving professional advice to clients or drawing legal documents for them. The stu-dent in all his work must act as agent for the lawyer em-ploying him, who must supervise his work and be responsi-ble for his good conduct." ABA Opinion 85 (1932).wise share legal fees with a layman.4 This does not mean, however, that the pecuniary value of the interest of a deceased lawyer in his firm or prac-tice may not be paid to his estate or specified per-sons such as his widow or heirs.5 In like manner, profit-sharing retirement plans of a lawyer or law firm which include non-lawyer office employees are not improper.6 These limited exceptions to the rule against sharing legal fees with laymen are permissible since they do not aid or encourage laymen to practice law.
EC 3-9 Regulation of the practice of law is ac-complished principally by the respective states.? Authority to engage in the practice of law con-ferred in any jurisdiction is not per se a grant of the right to practice elsewhere, and it is improper for a lawyer to engage in practice where he is not permitted by law or by court order to do so. However, the demands of business and the mobility of our society pose distinct problems in the regula-tion of the practice of law by the states .9 In fur-
4 "No division of fees for legal services is proper, ex-cept with another lawyer . . .." ABA Canon 34. Oth-erwise, according to ABA Opinion 316 (1967), "[t]he Can-ons of Ethics do not examine into the method by which such persons are remunerated by the lawyer. . . . They may be paid a salary, a per diem charge, a fíat fee, a con-tract price, etc."
See ABA Canons 33 and 47.
5 "Many partnership agreements provide that the active partners, on the death of any one of them, are to make payments to the estate or to the nominee of a deceased part-ner on a pre-determined formula. It is only where the effect of such an arrangement is to make the estate or nominee a member of the partnership along with the sur-viving partners that it is prohibited by Canon 34. Where the payments are made In accordance with a pre-existing agreement entered into by the deceased partner during his lifetime and providing for a fixed method for determining thelr amount based upon the value of services rendered during the partner’s lifetime and providing for a fixed period over which the payments are to be made, this is not the case. Under these circumstances, whether the pay-ments are considered to be delayed payment of compensa-tion earned but withheld during the partner’s lifetime, or whether they are considered to be an approximation of his interest in matters pending at the time of bis death, is im-material. In either event, as Henry S. Drinker says in his book, Legal Ethics, at page 189: ‘It would seem, however, that a reasonable agreement to pay the estate a proportion of the receipts for a reasonable period is a proper practical settlement for the lawyer’s services to bis retirement or death.’ " ABA Opinion 308 (1963).
Cf. ABA Opinion 311 (1964).
7 "That the States have broad power to regulate the practice of law is, of course, beyond question." United Mine Workers v. III. State Bar Ass’n, 389 U.S. 217, 222 (1967).
"It is a matter of law, not of ethics, as to where an in-dividual may practice law. Each state has its own rules." ABA Opinion 316 (1967).
8 "Much of clients’ business crosses state les. People are mobile, moving from state to state. Many metro-polítan areas cross state lines. It is common today to have a single economic and social community lnvolving more than one state. The business of a single client may involve legal problems in several states." ABA Opinion 316 (1967).therance of the public interest, the legal profession should discourage regulation that unreasonably im-poses territorial limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity of a client to obtain the serv-ices of a lawyer of his choice in all matters includ-ing the presentation of a contested matter in a tribunal before which the lawyer is not permanent-ly admitted to practice .9
DISCIPL1NARY RULES
DR 3-101 Aiding Unauthorized Practice of Law.10
(A) A lawyer shall not aid a non-lawyer in the un-authorized practice of law.11
(B) A lawyer shall not practice law in a jurisdic-tion where to do so would be in violation of regulatlons of the profession in that jurisdic-tion 12
DR 3-102 Dividing Legal Fees with a Non-Law-yer.
(A) A lawyer or law firm shall not share legal fees with a non-lawyer,13 except that:
(1) An agreement by a lawyer with his firm, partner, or associate may provide for the payment of money, over a rea-sonable period of time af ter his death, to his estate or to one or more specified persons.14
(2) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the de
9 "[W]e reaffirmed the general principie that legal serv-ices to New Jersey residents with respect to New Jersey matters may ordinarily be furnIshed only by New Jersey counsel; but we pointed out that there may be multistate transactlons where strict adherence to this thesis would not be in the public interest and that, under the circumstances, it would have been not only more costly to the client but also ‘grossly impractical and inefticient’ to have had the settlement negotiations conducted by separate lawyers from different states." In re Estate of Waring, 47 N.J. 367, 376, 221 A.2d 193, 197 (1966).
Cf. ABA Opinion 316 (1967).
19 Conduct permitted by the Disciplinary Rules of Can-ons 2 and 5 does not violate DR 3-101.
11 See ABA Canon 47.
12 it should be noted, however, that a lawyer may en-gage in conduct, otherwise prohibited by this Disciplinary Rule, where such conduct is authorized by preemptive fed-eral legislation. See Sperry v. Florida, 373 U.S. 379, 10 L.Ed.2d 428, 83 S.Ct. 1322 (1963).
ls See ABA Canon 34 and ABA Opinions 316 (1967), 180 (1938), and 48 (1931).
"The receiving attorney shall not under any guise or form share his fee for legal services with a lay agency, personal or corporate, without prejudice, however, to the right of the lay forwarder to charge and collect from the creditor proper compensation for non-legal services ren-dered by the law [sic] forwarder which are separate and apart from the services performed by the receiving at-torney." ABA Opinion 294 (1958).
14 See ABA Opinions 309 (1963) and 266 (1945).
ceased lawyer that proportion of the total compensation which fairly repre-senta the services rendered by the de-ceased lawyer.
(3) A lawyer or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrange-ment-15
DR 3-103 Forming a Partnership with a Non-Lawyer.
(A) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.16
CANON 4
A Lawyer Should Preserve the Confidentes and Secrets of a Client
ETHICAL CONSIDERATIONS
EC 4-1 Both the fiduciary relationship existing between lawyer and client and the proper function-ing of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him.1 A client must feel free to discuss whatever he wishes
15 Cf. ABA Opinion 311 (1964).
le See ABA Canon 33; cf. ABA Opinions 239 (1942) and 201 (1940).
ABA Opinion 316 (1967) states that lawyers licensed in different jurisdictions may, under certain conditions, en-ter "finto an arrangement for the practice of law" and that a lawyer licensed in State A is not, for such purpose, a layman in State B.
1 See ABA Canons 6 and 37 and ABA Opinion 287 (1953).
"The reason underlying the rule with respect to confi-dential communications between attorney and client is well stated in Mecham on Agency, 2d Ed., Vol. 2, § 2297, as follows: ‘The purposes and necessities of the relation between a client and his attorney require, in many cases, un the part of the client, the fullest and freest disclosures to the attorney of the client’s objects, motives and acts. This disclosure is made in the strictest confidente, rely-ing upon the attorney’s honor and fidelity. To permit the attorney to reveal to others what is so disclosed, would be not only a gross violation of a sacred trust upon his part, but it would utterly destroy and prevent the use-fulness and benefits to be derived from professional assist-ance. Based upon considerations of public policy, there-fore, the law wisely declares that all confidential com-munications and disclosures, made by a client to his legal adviser for the purpose of obtaining his professional aid or advice, shall be strictly privileged ;—that the attorney shall not be permitted, without the consent of his client,-and much less will he be compelled—to reveal or disclose communications made to him under such circumstances.’ " ABA Opinion 250 (1943).
"While it is true that complete revelation of relevant facts should be encouraged for trial purposes, nevertheless an attorney’s dealings with his client, if both are sin-cere, and if the dealings involve more than mere technical matters, should be immune to discovery proceedings. There must be freedom from fear of revealment of mat-ters disclosed to an attorney because of the peculiarly intimate relationshlp existing." Ellis-Foster Co. v. Union Carbide & Carbon Corp., 159 F.Supp. 917, 919 (D.N.J. 1958).
Cf. ABA Opinions 314 (1965), 274 (1946) and 268 (194
with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client.2 A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to sepa-rate the relevant and important from the irrelevant and unimportant. The observante of the ethical obligation of a lawyer to hold inviolate the con-fidences and secrets of his client not only facili-tates the full development of facts essential to proper representation of the client but also en-courages laymen to seek early legal assistance.
EC 4-2 The obligation to protect confidences and secrets obviously does not preclude a lawyer from revealing information when his client consents after full disclosure,3 when necessary to perform his professional employment, when permitted by a Disciplinary Rule, or when required by law. Un-less the client otherwise directs, a lawyer may dis-close the affairs of his client to partners or asso-ciates of his firm. It is a matter of common knowl-edge that the normal operation of a law office ex-poses confidential professional information to non-lawyer employees of the office, particularly secre-taries and those having access to the files; and this obligates a lawyer to exercise tare in selecting and training his employees so that the sanctity of all confidences and secrets of his clients may be pre-served. If the obligation extends to two or more clients as to the same information, a lawyer should obtain the permission of all before revealing the information. A lawyer must always be sensitive to the rights and wishes of his client and act scrupulously in the making of decisions which may involve the disclosure of information obtained in his professional relationship.4 Thus, in the ab-sence of consent of his client after full disclosure, a lawyer should not associate another lawyer in the handling of a matter; nor should he, in the ab-sence of consent, seek counsel from another lawyer
2 "While It is the great purpose of law to ascertain the truth, there is the countervailing necessity of insuring the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense. This assistance can be made safely and readily available only when the client is free from the consequences of apprehension oí disclosure by reason of the subseq.uent statements of the skilled lawyer." Baird v. Koerner, 279 F.2d 623, 629-30 (9th Cir. 1960).
Cf. ABA Opinion 150 (1936).
3 "Where . . . [a client] knowingly and after full disclosure participates in a [legal fee] financing plan which requires the furnlshing of certain information to the bank, elearly by his conduct he has waived any priv-Ilege as to that Information." ABA Opinion 320 (1968).
4 "The lawyer must decide when he takes a case whether It is a suitable one for him to undertake and after this decislon is made, he is not justified in turning against his client by exposing injurlous evidente entrusted to him. . . . [D]oing something intrinsically regrettable, because the only alternative involves worse consequences, is a necessity in every profession." Williston, Life and Law 271 (1940).
Cf. ABA Opinions 177 (1938) and 83 (1932)
of the client or his confidences or secrets would be revealed to such lawyer. Both social amenities and professional duty should cause a lawyer to shun indiscreet conversations concerning his clients.
EC 4-3 Unless the client otherwise directs, it is not improper for a lawyer to give limited informa-tion from his files to an outside agency necessary for statistical, bookkeeping, accounting, data proc-essing, banking, printing, or other legitimate pur-poses, provided he exercises due tare in the selec-tion of the agency and warns the agency that the information must be kept confidential.
EC 4-4 The attorney-client privilege is more limit-ed than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge. A lawyer should endeavor to act in a manner which preserves the evidentiary privi-lege; for example, he should avoid professional discussions in the presence of persons to whom the privilege does not extend. A lawyer owes an ob-ligation to advise the client of the attorney-client privilege and timely to assert the privilege unless it is waived by the client.
EC 4-5 A lawyer should not use information ac-quired In the course of the representation of a client to the disadvantage of the client and a law-yer should not use, except with the consent of his client after full disclosure, such information for his own purposes.5 Likewise, a lawyer should be diligent in his efforts to prevent the misuse of such information by his employees and associates.6 Care should be exercised by a lawyer to prevent the disclosure of the confidences and secrets of one client to another,7 and no employment should be accepted that might require such disclosure.
EC 4-6 The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment.5 Thus a law-yer should not attempt to sell a law practice as a going business because, among other reasons, to do so would involve the disclosure of confidences and secrets.5 A lawyer should also provide for the
See ABA Canon 11.
6 See ABA Canon 37.
7 See ABA Canons 6 and 37.
"[A]ti attorney must not accept professional employment against a client or a former client which will, or even may require him to use confidential information obtained by the attorney in the course of his professional relations with such client regarding the subject matter of the employ-
ment . " ABA Opinion 165 (1936).
8 See ABA Canon 37.
"Confidential communications between an attorney and his client, made because of the relationship and concerning the subject-matter of the attorney’s employment, are generally privileged from disclosure without the con-sent of the client, and this privilege outlasts the attor-ney’s .employment. Canon 37." ABA Opinion 154 (1936).
9 Cf. ABA Opinion 266 (1945)
protection of the confidences and secrets of his client following the termination of the practice of the lawyer, whether termination is due to death, disability, or retirement. For example, a lawyer might provide for the personal papers of the client to be returned to him and for the papers of the lawyer to be delivered to another lawyer or to be destroyed. In determining the method of disposi-tion, the instructions and wishes of the client should be a dominant consideration.
DISCIPLINARY RULES
DR 4-101 Preservation of Confidentes and Se-crets of a Client.»
(A) "Confidente" refers to information protected by the attorney-client privilege under applica-ble law, and "secret" refers to other informa-tion gained in the professional relationship that the client has requested be heid inviolate or the disclosure of which would be em-barrassing or would be likely to be detrimen-tal to the client.
(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.11
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself 12 or of a third person,13 unless the client con-sents after full disclosure.
lo See ABA Canon 37; cf. ABA Canon 6.
11 "§ 6068 . It ls the duty of an attorney :
. . •
"(e) To maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client." Cal. Business and Professions Code § 6068 (West 1962). Vir-tually the same provision is found in the Oregon statutes. Ore.Rev.Stats. ch. 9, § 9.460(5).
"Communications between lawyer and client are priv-ileged (Wigmore on Evidente, 3d. Ed., Vol. 8, §§ 2290-2329). The modern theory underlying the privilege is sub-jective and is to give the client freedom of apprehension in consulting his legal adviser (ibid., § 2290, p. 548). The privilege applies to communications made in seeking legal advice for any purpose (ibid., § 2294, p. 563). The mere circumstance that the advice is given without charge there-fore does not nullify the privilege (ibid., § 2303)." ABA Opinion 216 (1941).
"It is the duty of an attorney to maintain the confidence
and preserve inviolate the secrets of his client . . ABA Opinion 155 (1936).
12 See ABA Canon 11.
"The provision respecting employment is in accord with the general rule announced in the adjudicated cases that a lawyer may not make use of knowledge or informa-tion acquired by him through his professional relations with his client, or in the conduct of his client’s business, to his own advantage or profit (7 C.J.S., § 125, p. 958; Healy v. Gray, 184 Iowa 111, 168 N.W. 222; Baumgardner v. Hudson, D.C.App., 277 F. 552; Goodrum v. Clement, D.C.App., 277 F. 586)." ABA Opinion 250 (1943).
13 See ABA Opinion 177 (1938)
(C) A lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.14
(2) Confidences or secrets when permitted under Disciplinary Bailes or required by law or court order.15
(3) The intention of his client to eommlt a crime 16 and the information necessary to prevent the crime.17
(4) Confidences or secrets necessary to es-tablish or collect his fee 18 or to defend
14 "[A lawyer] may not divulge confidential communi-cations, information, and secrets imparted to him by the client or acquired during thelr professional relations, un-less he Is authorized to do so by the client (People v. Ger-old, 265 III. 448, 107 N.E. 165, 178; Murphy v. Riggs, 238 Mich. 151, 213 N.W. 110, 112; Opinion of this Committee, No. 91)." ABA Opinion 202 (1940).
Cf. ABA Opinion 91 (1933).
11 "A defendant in a criminal case when admitted to bail is not only regarded as in the custody of his bail, but he is also in the custody of the law, and admission to bail does not deprive the court of its inherent power to deal with the person of the prisoner. Being in lawful custody, the defendant is guilty of an escape when he gains his liberty before he is delivered in due process of law, and is guilty of a separate offense for which he may be punished. In failing to disclose his client’s where-abouts as a fugitive under these circumstances the attor-ney would not only be aiding his client to escape trial on the charge for which he was indicted, but would likewise be aiding him in evading prosecution for the additional offense of escape.
"It Is the opinion of the committee that under such cir-cumstances the attorney’s knowledge of his client’s where-abouts is not privileged, and that he may be disciplined for failing to disclose that information to the proper au-
thorities. . ." ABA Opinion 155 (1936).
"We held in Opinion 155 that a communication by a client to his attorney in respect to the future commission of an unlawful act or to a continuing wrong is not priv-ileged from disclosure. Public policy forbids that the re-lation of attorney and client should be used to conceal wrongdoing on the part of the client.
"When an attorney representing a defendant in a criminal case applies on his behalf for probation or suspen-sion of sentence, he represents to the court, by implication at least, that his client will abide by the terms and con-ditions of the court’s order. When that attorney is later advised of a violation of that order, it is his duty to ad-vise his client of the consequences of his act, and endeavor to prevent a continuance of the wrongdoing. If his client thereafter persists in violating the terms and conditions of his probation, it is the duty of the attorney as an officer of the court to advise the proper authorities concerning his client’s conduct. Such information, even though coming to the attorney from the client in the course of his profes-sional relations with respect to other matters in which he represents the defendant, is not privileged from disclosure. . . ." ABA Opinion 156 (1936).
16 ABA Opinion 314 (1965) indicates that a lawyer must disclose even the confidences of his clients if "the facts in the attorney’s possession indicate beyond reasonable doubt that a crime will be committed."
See ABA Opinion 155 (1936).
17 See ABA Canon 37 and ABA Opinion 202 (1940). is Cf. ABA Opinion 250 (1943).
himself or his employees or associates against an accusation of wrongful con-duct.19
(D) A lawyer shall exercise reasonable tare to prevent his employees, associates, and others whose services are utilized by him from dis-closing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee.
CANON 5
Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client
ETHICAL CONSIDERATIONS
EC 5-1 The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of com-promising influences and loyalties.1 Neither his
19 See ABA Canon 37 and ABA Opinions 202 (1940) and 19 (1930).
"[T]he adjudicated cases recognize an exception to the rule [that a lawyer shall not reveal the confidences of his client], where disclosure is necessary to protect the attorney’s interests arising out of the relation of attorney and client in which disclosure was made.
‘The exception is stated in Mechem on Agency, 2d Ed., Vol. 2, § 2313, as follows : ‘But the attorney may disclose information received from the client when it becomes necessary for his own protection, as if the client should bring an action against the attorney for negligente or mis-conduct, and it became necessary for the attorney to show what his instructions were, or what was the nature of the duty which the client expected him to perform. So if it became necessary for the attorney to bring an ac-tion against the client, the client’s privilege could not pre-vent the attorney from disclosing what was essential as a means of obtaining or defending his own rights.’
"Mr. Jones, in his Commentaries on Evidente, 2d Ed., Vol. 5, § 2165, states the exception thus : ‘It has frequently been held that the rule as to privileged communications does not apply when litigation arises between attorney and client to the extent that their communications are relevant to the issue. In such cases, if the disclosure of privileged communications becomes necessary to protect the attorney’s rights, he is released from those obligations of secrecy which the law places upon him. He should not, however, disclose more than is necessary for his own protection. It would be a manifest injustice to allow the client to take ad-vantage of the rule of exclusion as to professional confi-dence to the prejudice of his attorney, or that it should be carrled to the extent of depriving the attorney of the. means of obtaining or defending his own rights. In such cases the attorney is exempted from the obligations of
secrecy.’ ABA Opinion 250 (1943).
1 Cf. ABA Canon 35.
"[A lawyer’s] fiduciary duty is of the highest order and he must not represent interests adverse to those of the client. It is also true that because of bis professional responsibility and the confidente and trust which his client may legitimately repose in him, he must adhere to a high standard of honesty, integrity and good faith in deal-ing with his client. He is not permitted to take advantage of bis position or superior knowledge to impuse upon the client; nor to conceal facts or law, nor in any way deceive
19 See ABA Canon 37 and ABA Opinions 202 (1940) and 19 (1930).
"[T]he adjudicated cases recognize an exception to the rule [that a lawyer shall not reveal the confidences of his client], where disclosure is necessary to protect the attorney’s interests arising out of the relation of attorney and client in which disclosure was made.
‘The exception is stated in Mechem on Agency, 2d Ed., Vol. 2, § 2313, as follows : ‘But the attorney may disclose information received from the client when it becomes necessary for his own protection, as if the client should bring an action against the attorney for negligente or mis-conduct, and it became necessary for the attorney to show what his instructions were, or what was the nature of the duty which the client expected him to perform. So if it became necessary for the attorney to bring an ac-tion against the client, the client’s privilege could not pre-vent the attorney from disclosing what was essential as a means of obtaining or defending his own rights.’
"Mr. Jones, in his Commentaries on Evidente, 2d Ed., Vol. 5, § 2165, states the exception thus : ‘It has frequently been held that the rule as to privileged communications does not apply when litigation arises between attorney and client to the extent that their communications are relevant to the issue. In such cases, if the disclosure of privileged communications becomes necessary to protect the attorney’s rights, he is released from those obligations of secrecy which the law places upon him. He should not, however, disclose more than is necessary for his own protection. It would be a manifest injustice to allow the client to take ad-vantage of the rule of exclusion as to professional confi-dence to the prejudice of his attorney, or that it should be carrled to the extent of depriving the attorney of the. means of obtaining or defending his own rights. In such cases the attorney is exempted from the obligations of
secrecy.’ ABA Opinion 250 (1943).
1 Cf. ABA Canon 35.
"[A lawyer’s] fiduciary duty is of the highest order and he must not represent interests adverse to those of the client. It is also true that because of bis professional responsibility and the confidente and trust which his client may legitimately repose in him, he must adhere to a high standard of honesty, integrity and good faith in deal-ing with his client. He is not permitted to take advantage of bis position or superior knowledge to impuse upon the client; nor to conceal facts or law, nor in any way deceive
terference would occur with respect to a prospec-tive client, a lawyer should decline employment proffered by him. After accepting employment, a lawyer should not acquire property rights that would adversely affect his professional judgment in the representation of his client. Even if the property interests of a lawyer do not presently in-terfere with the exercise of his independent judg-ment, but the likelihood of interferente can rea-sonably be foreseen by him, a lawyer should ex-plain the situation to his client and should decline employment or withdraw unless the client con-sents to the continuance of the relationship after full disclosure. A lawyer should not seék to per-suade his client to permit him to invest in an un-dertaking of his client nor make improper use of his professional relationship to influence his client to invest in an enterprise in which the lawyer is interested.
EC 5-4 If, in the course of his representation of a client, a lawyer is permitted to receive from his client a beneficial ownership in publication rights relating to the subject matter of the employment, he may be tempted to subordinate the interests of his client to his own anticipated pecuniary gain. For example, a lawyer in a criminal case who ob-tains from his client television, radio, motion pic-ture, newspaper, magazine, book, or other publica-tion rights with respect to the case may be influ-enced, consciously or unconsciously, to a course of conduct that will enhance the value of his publica-tion rights to the prejudice of his client. To pre-vent these potentially differing interests, such ar-rangements should be scrupulously avoided prior to the termination of all aspects of the matter giv-ing rise to the employment, even though his em-ployment has previously ended.
EC 5-5 A lawyer should not suggest to his client that á gift be made to himself or for his benefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the charge that he unduly influenced or overreached the client. If a client voluntarily offers to make a gift to his lawyer, the lawyer may accept the gift, but bef ore doing so, he should urge that his client secure disinterested ad-vice from an independent, competent person who is cognizant of all the circumstances.3 Other than in
3 "Courts of equity will scrutinize with jealous vigilante transactions between parties occupying fiduciary relations
toward each other. . . A deed will not be held in- valid, however, if made by the grantor with full knowl-edge of its nature and effect, and because of the deliberate, voluntary and intelligent desire of the grantor.
Where a fiduciary relation exists, the burden of proof is on the grantee or beneficiary of an instrument executed during the existence of such relationship to show the fair-ness of the transaction, that it was equitable and just
and that it did not proceed from undue influence. . The same rule has application where an attorney engages In a transaction with a client during the existence of the relation and is beneflted thereby. . . . Conversely, an attorney is not prohibited from dealing with bis client or buying his property, and such contracts, if oyen, fair and honest, when deliberately made, are as valid as contracts
between other parties. . [I]mportant factors in determining whether a transaction 1s falr include a show-ing by the fiduciary (1) that he made a full and frank
exceptional circumstances, a lawyer should insist that an instrument in which his client desires to name him beneficially be prepared by another law-yer selected by the client.4
EC 5-6 A lawyer should not consciously influ-ence a client to name him as executor, trustee, or lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety.5
EC 5-7 The possibility of an adverse effect upon the exercise of free judgment by a lawyer on be-half of his client during litigation generally makes it undesirable for the lawyer to acquire a proprie-tary interest in the cause of his client or otherwise to become financially interested in the outcome of the litigation.6 However, it is not improper for a lawyer to protect his right to collect a fee for his services by the assertion of legally permissible liens, even though by doing so he may acquire an interest in the outcome of litigation. Although a contingent fee arrangement 7 gives a lawyer a financial interest in the outcome of litigation, a reasonable contingent fee is permissible in civil cases because it may be the only means by which a layman can obtain the services of a lawyer of his choice. But a lawyer, because he is in a better position to evaluate a cause of action, should enter into a contingent fee arrangement only in those instances where the arrangement will be beneficial to the client.
EC 5-8 A financial interest in the outcome of liti-gation also results if monetary advances are made by the lawyer to his client.S Although this assist-ance generally is not encouraged, there are in-stances when it is not improper to make loans to a client. For example, the advancing or guarantee-ing of payment of the costs and expenses of litiga-tion by a lawyer may be the only way a client can enforce his cause of action,9 but the ultimate lia-
disclosure of all the relevant Information that he had ; (2) that the consideration was adequate; and (3) that the principal had independent advice before completing the transaction." McFall v. Braden, 19 Il1.2d 108, 117-18, 166 N.E.2d 46, 52 (1960).
4 See State ex rel. Nebraska State Bar Ass’n v. Richards, 165 Neb. 80, 94-95, 84 N.W.2d 136, 146 (1957).
5 See ABA Canon 9.
6 See ABA Canon 10.
7 See Code of Professional Responsibility, EC 2-20. See ABA Canon 42.
9 "Role 3a. . . . A member of the State Bar shall not directiy or indlrectly pay or agree to pay, or repre-sent or sanction the representatión that he will pay, med-ical, hospital or nursing bilis or other personal expenses incurred by or for a client, prospective or existing; pro-vided this rule shall not prohibit a member :
"(1) with the consent of the client, from paying or agreeing to pay to third persons such expenses from funds collected or to be collected for the client; or
(2) after he has been employed, from lending money to his client upon the client’s promise in writing to repay such loan: or
bility for such costs and expenses must be that of the client.
EC 5-9 Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both coun-sel and witness, he becomes more easily impeach-able for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advo-cate in the case. An advocate who becomes a wit-ness is in the unseemly and ineffective position of arguing his own credibility. The roles of an ad-vocate and of a witness are inconsistent; the func-tion of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.
EC 5-10 Problems incident to the lawyer-witness relationship arise at different stages; they relate either to whether a lawyer should accept employ-ment or should withdraw from employment.10 Re-gardless of when the problem arises, his decision is to be governed by the same basic considerations. It is not objectionable for a lawyer who is a po-tential witness to be an advocate if it is unlikely that he will be called as a witness because his tes-timony would be merely cumulative or if his testi-mony will relate only to an uncontested issue.11 In the exceptional situation where it will be man-ifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he may serve as advocate even though he may be a witness.12 In making such decision, he should determine the per-sonal or financial sacrifice of the client that may result from his refusal of employment or with-
(3) from advancing the costs of prosecutin•g or defend-ing a claim or action. Such costs wlthin the meaning of this subparagraph (3) include all taxable costs or disburse-ments, costs or investigation and costs of obtaining and presenting evidence." Cal. Business and Professions Code § 6076 (West Supp.1967).
lo "When a lawyer knows, prior to trial, that he will be a necessary witness, except as to merely formal mat-ters such as ldentífication or custody of a document or the like, neither he nor his firm or associates should con-duct the trial. If, during the trial, he discovers that the ends of justice require his testimony, he should, from that point on, if feasible and not prejudicial to his client’s case, leave further conduct of the trial to other counsel. If circumstances do not permit withdrawal from the con-duct of the trial, the lawyer should not argue the credi-bility of his own testimony." A Code of Trial Conduct: Promulgated by the American College of Trial Lawyers, 43 A.B.A.J. 223, 224-25 (1957).
11 Cf. Canon 19: "When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel."
12 "It Is the general rule that a lawyer may not testify in litigation in which he is an advocate unless circum-stances arise which could not be anticipated and it is necessary to prevent a miscarriage of justice. In those rare cases where the testimony of an attorney is needed to protect his client’s interests, ít is not only proper but mandatory that it be forthcoming." Schwartz v. Wenger, 267 Minn. 40, 43-44, 124 N.W.2d 489, 492 (1963).
drawal therefrom, the materiality of his testimony, and the effectiveness of his representation in view of his personal involvement. In weighing these factors, it should be clear that refusal or with-drawal will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment.13 Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.14
EC 5-11 A lawyer should not permit his personal interests to influence his advice relative to a sug-gestion by his client that additional counsel be employed 1° In like manner, his personal interests should not deter him from suggesting that addi-tional counsel be employed; on the contrary, he should be alert to the desirability of recommend-ing additional counsel when, ín his judgment, the proper representation of his client requires it. However, a lawyer should advise his client not to employ additional counsel suggested by the client if the lawyer believes that such employment would be a disservice to the client, and he should dis-close the reasons for his belief.
EC 5-12 Inability of co-counsel to agree on a mat-ter vital to the representation of their client re-quires that their disagreement be submitted by them jointly to their client for his resolution, and the decision of the client shall control the action to be taken.18
EC 5-13 A lawyer should not maintain member-ship in or be influenced by any drganization of employees that undertakes to prescribe, direct, or suggest when or how he should fulfill his pro-fessional obligations to a person or organization that employs him as a lawyer. Although it is not necessarily improper for a lawyer employed by a corporation or similar entity to be a member of an organization of employees, he should be vig-ilant to safeguard his fidelity as a lawyer to his employer, free from outside influences.
13 -The great weight of authority in this country holds that the attorney who acts as counsel and witness, in be-half of his client, in the same cause on a material matter, not of a merely formal character, and not in an emergency, but having knowledge that he would be required to be a witness in ample time to have secured other counsel and given up his service in the case, violates a highly im-portant provlsion of the Code of Ethics and a rule of professlonal conduct, but does not commit a legal error in so testifying, as a result of which a new trial will be granted." Erwln M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866, 869 (1928).
14 "[Ciases may arise, and in practice often do arise, in which there would be a failure of justice should the at-torney withhold his testimony. In such a case it would be a vicious professional sentiment which would deprive the client of the benefit of his attorney’s testimony." Con-nolly v. Straw, 53 Wis. 645, 649, 11 N.W. 17, 19 (1881).
But see Canon 19: "Except when essential to the ends of justice, a lawyer should avoid testifying in court in be-half of his client."
15 Cf. ABA Canon 7. See ABA Canon 7.
Interests of Multiple Clients
EC 5-14 Maintaining the independence of profes-sional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client 17 This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.18
EC 5-15 If a lawyer is requested to undertake or to continue representation of multiple clients hav-ing potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation mul-tiple clients with differing interests,19 and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer ac-cepted such employment and the interests did be-come actually differing, he would have to with-draw from employment with likelihood of result-ing hardship on the clients; and for this reason it is preferable that he refuse the employment ini-tially. On the other hand, there are many in-stances in which a lawyer may properly serve mul-tiple clients having potentially differing interests in matters not involving litigation. If the inter-ests vary only slightly, it is generally likely that
17 See ABA Canon 6; cf. ABA Opinions 261 (1944), 242 (1942), 142 (1935), and 30 (1931).
19 The ABA Canons speak of "conflicting interests" rather than "differing interests" but make no attempt to define such other than the statement in Canon 6: "Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to con-tend for that which duty to another client requires him to oppose."
19 "Canon 6 of the Canons of Professional Ethics, adopt-ed by the American Bar Association on September 30, 1937, and by the Pennsylvania Bar Association on January 7, 1938, provides in part that ‘It is unprofessional to represent conflicting interests, except by express consent of all concerned given alter a full disclosure of the facts. Within the meaning of this Canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.’ The full disclosure required by this canon contemplates that the possibly adverse effect of the conflict be fully explained by the attorney to the client to be affected and by him thoroughly understood.
"The foregoing canon applies to cases where the cir-cumstances are such that possibly conflicting interests may permissibly be represented by the same attorney. But manifestly, there are instantes where the conflicto of interest are so critically adverse as not to admit of one attorney’s representing both sides. Such is the situation which this record presento. No one could conscionably contend that the same attorney may represent both the plaintiff and defendant in an adversary action. Yet, that is what is being done in this case." Jedwabny v. Philo-delphia Transportation Co., 390 Pa. 231, 235, 135 A.2d 252, 254 (1957), cert. denied, 355 U.S. 966, 2 L.Ed.2d 541, 78 S.Ct. 557 (1958).
(B) A lawyer shall not accept employment in con-templated or pending litigation if he knows or It is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
If the testimony will relate solely to an uncontested matter.
If the testimony will relate solely to a matter of formality and there is no rea-son to believe that substantial evidence will be offered in opposition to the testi-mony.
If the testimony will relate solely to the nature and value of legal services ren-dered in the case by the lawyer or his firm to the client.
As to any matter, If refusal would work a substantial hardship on the client be-cause of the distinctive value of the law-yer or his firm as counsel in the partic-ular case.
DR 5-102 Withdrawal as Counsel When the Law-yer Becomes a Witness.30
(A) If, after undertaking employment in contem-plated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the con-duct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circuanstances enumerated in DR 5-101(B) (1) through (4).
(B) If, after undertaking employment in contem-plated or pending litigation, a lawyer learns or it 1s obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation untes it is apparent that his testimony is or may be prejudicial to his client.31
the firm who was public prosecuting attorney. The. Opin-ion stated that it was clearly unethical for one member of the firm to oppose the interest of the state while an-
other member represented those interests . . Since the prosecutor himself could not represent both the public and the defendant, no member of his law flrm could either." ABA Opinion 296 (1959).
so Cf. ABA Canon 19 and ABA Opinions 220 (1941), 185 (1938), 50 (1931), and 33 (1931); but cf. Erwln M. Jen nings Co. v. DiGenova, 107 Conn. 491, 498-99, 141 A. 866, 868 (1928).
al "This Canon [19] of Ethics needs no elaboration to be applled to the facts here. Apparently, the object of this precept is to avoid putting a lawyer in the obviously embarrassing predicament of testifying and then having to argue the credibility and effect of his own testimony. It was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as coun-sel." Galarowicz v. Ward, 119 Utah 611, 620, 230 P.2d 576, 580 (1951).
DR 5-103 Avoiding Acquisition of Interest in Lit-igation.
(A) A lawyer shall not acquire a proprietary in-terest in the cause of action or subject matter of litigation he is conducting for a client,32 except that he may:
(1) Acquire a lien granted by law to secure his fee or expenses.
(2) Contract with a client for a reasonable contingent fee in a civil case.33
While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial as« sista,nce to his client,34 except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examina-tion, and costs of obtaining and presenting evidence, provided the client remains ultimate-ly Hable for such expenses.
5-104 Limiting Business Relations with a Client.
A lawyer shall not enter Into a business trans-action with a client if they have differing interests therein and if the client expects the lawyer to exercise Ida professional judgment therein for the protection of the client, unless the client has consented after full disclosure.
Prior to conclusion of all aspects of the mat-ter giving rise to his employment, a lawyer shall not enter finto any arrangement or un-derstanding with a client or a prospective client by which he acquires an interest in pub-lication rights with respect to the subject matter of his employment or proposed em-ployment.
DR 5-105 Refusing to Accept or Confirme Em-ployment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.
(A) A lawyer shall decline proffered employment 1f the exercise of his Independent professional judgment in behalf of a client will be or la likely to be adversely affected by the aecept-anee of the proffered employment,35 or if it would be likely to involve him in representing differIng interests, except to the extent per-mitted under DR 5-105(C).36
32 ABA Canon 10 and ABA Opinions 279 (1949), 246 (1942), and 176 (1938).
aa See Code of Professional Responsibility, DR 2-106(C).
34 See ABA Canon 42; cf. ARA Opinion 288 (1954).
35 See ABA Canon 6; cf. ABA Opinions 167 (1937), 60 (1931), and 40 (1931).
86 ABA Opinion 247 (1942) held that an attorney could not investígate a nlght club shooting on behalf of one of the owner’s liability lnsurers, obtaining the cooperation of the owner, and later represent the Injured patron in an action against the owner and a different insurance com-(B) A lawyer shall not continue multiple employ-ment if the exercise of his independent pro-fessional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differ-ing interests, except to the extent permitted under DR 5-105(C).37
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately rep-resent the interest of each and 1f each con• sents to the representation after full disclo-sure of the possible effect of such representa-tion on the exercise of his independent pro-fessional judgment on behalf of eaeh.
(D) If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner or associate, or any other lawyer affiliated with him or his firm may accept or continue such employ-ment.
DR 5-106 Settling Similar Claims of Clients.35
(A) A lawyer who representa two or more clients shall not make or particípate in the making of an aggregate settlement of the claims of or agalnst bis clients, unless each client has consented to the settlement after being ad-vised of the existence and nature of all the claims involved in the proponed settlement, of the total amount of the settlement, and of the participation oí each person in the settlement•
DR 5-107 Avoiding Influence by Others Than the Client.
(A) Except with the consent of his client alter full diselosure, a lawyer shall not:
(1) Accept compensation for his legal serv-ices from one other than his client.
(2) Accept from one other than his client any thing of value related to his representa-tion of or bis employment by his client.39
(B) A lawyer shall not permit a person who rec-ommends, employs, or pays him to render legal services for another to direct or regulate
pany uniese the attorney obtain the "exprese consent of all concerned given alter a full disclosure of the facts," (duce to do so would be to represent conflicting lnterests.
Bes ABA Opinions 247 (1942), 224 (1941), 222 (1941), 218
(1941), 112 (1934), 83 (1932), and 86 (1932).
37 Cf. ABA Opinions 231 (1941) and 160 (1936).
38 Cf. ABA Opinions 243 (1942) and 235 (1941).
38 See ABA Canon 38.
"A lawyer who receives a commisslon (whether delayed or not) from a title insurance company or guaranty fund for recommending or selling the insurance to his client, or for work done for the client or the company, without either fully dlsclosing to the client his financial interest in the transaction, or crediting the client’s bill with the amount thus received, is guilty of unethical conduct." ABA Opinion 304 (1962).
his professional judgment in rendering such legal services 40
(C) A lawyer shall not practice with or in the form of a professional corporation or asso-ciation authorized to practice law for a profit, if:
(1) A non-lawyer owns any interest therein,41 except that a fiduclary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) A non•lawyer is a corporate director or officer thereof; 42 or
(3) A non-lawyer has the right to direct or control the professional judgment of a lawyer
CANON 6
A Lawyer Should Represent a Client Competently
EC 6-1 Because of his vital role in the legal process, a lawyer should act with competence and proper care in representing clients. He should strive to become and remain proficient in his prac-tice 1 and should accept employment only in mat-
40 See ABA Canon 35: cf. ABA Opinion 237 (1941).
"When the lay forwarder, as agent for the creditor, for-wards a claim to an attorney, the direct relationship of attorney and client shall then exlst between the attorney and the creditor, and the forwarder shall not Interpose ltself as an intermedlary to control the activities of the attorney." ABA Opinion 294 (1958).
41 "Permanent beneficia] and voting rlghts in the or-ganization set up to practice law, whatever lis form, must be restricted to lawyers whlle the organization le engaged In the practice of law." ABA Opinion 303 (1961).
42 "Canon 33 . promuigates underlying principies
that must be observed no matter In what form of organiza-tion lawyers practice law. Its requirement that no person shall be admltted or held out as a practitioner or member who is not a member of the legal profession duly author-ized to practice, and amenable to professional discipline, makes it clear that any centralized management must be in lawyers to avoid a violation of thls Canon." ABA Opin-ion 303 (1961).
43 "There is no intervention of any lay agency between lawyer and client when centralized management provided only by lawyers may give guidance or direction to the services being rendered by a lawyer-member of the or-ganization to a client. The language in Canon 35 that a lawyer should avoid all relations which direct the per-formance of his duties by or in the interest of an inter-mediary refers to lay intermediaries and not lawyer in-termediaries with whom he is associated in the practice of law." ABA Opinion 303 (1961).
1 "[W]hen a citizen is faced with the need for a lawyer, he wants, and is entitled to, the best informed counsel he can obtain. Changing times produce changes In our laws and legal procedures. The natural complexities of law require continuing Intensive study by a lawyer if he Is to render his clients a maximum of efficient service. And, In so doing, he maIntains the hlgh standards of the legal profession; and he aleo Increases respect and con-ters which he is or intends to become competent to handle.
EC 6-2 A lawyer is aided in attaining and main-taining his competence by keeping abreast of cur-rent legal literature and developments, participat-ing in continuing legal education programs,2 con-centrating in particular areas of the law, and by utilizing other available means. He has the addi-tional ethical obligation to assist in improving the legal profession, and he may do so by par-ticipating in bar activities intended to advance the quality and standards of members of the pro-fession. Of particular importante is the careful training of his younger associates and the giving of sound guidance to all lawyers who consult him. In short, a lawyer should strive at all levels to aid the legal profession in advancing the highest pos-sible standards of integrity and competence and to meet those standards himself.
EC 6-3 While the licensing of a lawyer is evi-dence that he has met the standards then prevail-ing for admission to the bar, a lawyer generally should not accept employment in any area of the law in which he is not qualified.3 However, he may accept such employment if in good faith he expects to become qualified through study and in-vestigation, as long as such preparation would not
fidence by the general public." Rochelle & Payne, The Struggle for Public Understanding, 25 Texas B.J. 109, 160 (1962).
"We have undergone enormous changes In the last flfty years within the lives of most of the adults living today who may be seekIng advice. Most of these changes have been accompanled by changes and developments In the law. . . . Every practicIng lawyer encounters these problems and is often perplexed with hls own Inability to keep up, not only with changes in the law, but also with changes in the lives of his clients and their legal problems.
"To be sure, no client has a right to expect that his law-yer will have all of the answers at the end of his tongue or even in the back of his head at all times. But the client does have the right to expect that the lawyer will have devoted his time and energies to maintaining and improving his competence to know where to look for the answers, to know how to deal with the problems, and to know how to advice to the best of his legal talents and abilities." Levy & Sprague, Accounting and Law: Is Dual Practice in the Public Interest?, 52 A.B.A.J. 1110, 1112 (1966).
2.’The whole purpose of continuing legal education, so enthuslastically supported by the ABA, is to make it pos-sible for lawyers to make themselves better lawyers. But there are no nostrums for proficiency in the law; it must come through the hard work of the lawyer himself. To the extent that that work, whether lt be in attending institutes or lecture courses, In studying after hours or in the actual day in and day out practice of his profession, can be concentrated within a limited field, the greater the proficiency and expertness that can be developed." Re-port of the Special Committee on Specialization and Spe-cialized Legal Education, 79 A.B.A.Rep. 582, 588 (1954).
3 "If the attorney is not competent to skillfully and properly perform the work, he should not undertake the service." Degen v. Steinbrink, 202 App.Div. 477, 481, 195 N.Y.S. 810, 814 (1922), af Fel mem., 236 N.Y. 669, 142 N.E.328 (1923).result in unreasonable delay or expense to his client. Proper preparation and representation may require the association by the lawyer of pro-fessionals in other disciplines. A lawyer offered employment in a matter in which he is not and does not expect to become so qualified should ei-ther decline the employment or, with the consent of his client, accept the employment and associate a lawyer who is competent in the matter.4
EC 6-4 Having undertaken representation, a law-yer should use proper care to safeguard the in-terests of his client. If a lawyer has accepted em-ployment in a matter beyond his competence but in which he expected to become competent, he should diligently undertake the work and study necessary to qualif y himself. In addition to being qualified to handle a particular matter, his obli-gation to his client requires him to prepare ade-quately for and give appropriate attention to his legal work.
EC 6-5 A lawyer should have prlde in his pro-fessional endeavors. His obligation to act com-petently calls for higher motivation than that arising from fear of civil liability or disciplinary penalty.
EC 6-6 A lawyer should not seek, by contract or other means, to limit his individual liability to his client for his malpractice. A lawyer who handles the affairs of his client properly has no need to attempt to limit his liability for his professional activities and one who does not handle the affairs of his client properly should not be permitted to do so. A lawyer who is a stockholder in or is as-sociated with a professional legal corporation may, however, limit his liability for malpractice of his associates in the corporation, but only to the ex-tent permitted by law
DISCIPLINARY RULES
DR 6-101 Failing to Act Competently. (A) A lawyer shall not:
(1) ~die a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.
(2) Handle a legal matter without prepara-tion adequate in the circumstances.
(3) Neglect a legal matter entrusted to him.
4 Cf. ABA Opinion 232 (1941).
See ABA Opinion 303 (1961); cf. Code of Professional Responsibility, EC 2-11.
e The annual report for 1967-1968 of the Committee on Grlevances of the Association of the Bar of the City of New York showed a recelpt of 2,232 complaints; of the 828 offenses agalnst clients, 76 involved conversion, 49 involved "overreaching," and 452, or more than half of all such offenses, involved neglect. Annual Report of the Committee on Grlevances of the Association of the Bar of the City of New York, N.Y.L.J., Sept. 12, 1968, at 4, col. 5.
DR 6-102 Limiting Liability to Client.
(A) A lawyer shall not attempt to exonerate him-self from or limit his liability to bis client for his personal malpractice.
CANON 7
A Lawyer Should Represent a Client Zealously Within the Bounds of the Law
ETHICAL CONSIDERATIONS
EC 7-1 The duty of a lawyer, both to his client 1 and to the legal system, is to represent his client zealously 2 within the bounds of the law,3 which
1 "The right to be heard would be, in many cases, of little avail if It did not comprehend the right to be heard by counsel. Even the intelfigent and educated layman has small and sometimes no skill in the science of law." Powell v. Alabama, 287 U.S. 45, 68-69, 77 L.Ed. 158, 170, 53 S.Ct. 55, 64 (1932).
2 Cf. ABA Canon 4.
"At times . . . [the tax lawyer] will be wise to dis-card some arguments and he should exercise discretion to emphasize the arguments which In his judgment are most likely to be persuasive. But this process involves legal judgment rather than moral attitudes. The tax lawyer should put acide private disagreements with Congressional and Treasury policies. His own notions of policy, and his personal view of what the law should be, are irrelevant. The Job entrusted to him by bis client Is to use all his learning and ability to protect his client’s rights, not to help in the process of promoting a better tax system. The tax lawyer need not accept his client’s economic and social opinions, but the client is paying for technical at-tention and undivided concentration upon his affairs. He is equally entitled to performance unfettered by his attor-ney’s economic and social predilections." Paul, The Law-yer as a Tax Adviser, 25 Rocky Mt. L. Rey. 412, 418 (1953).
3 See ABA Canons 15 and 32.
ABA Canon 5, although only speaking of one accused of crime, imposes a similar obligation on the lawyer "[T]he lawyer is bound, by all fair and honorable means, to present every defense that the law of the land per-mits, to the end that no person may be deprived of life or liberty, but by due process of law."
"Any persuasion or pressure on the advocate which de-ters him from planning and carryIng out the litigation on the basis of ‘what, within the framework of the law, is best for my client’s interest?’ interferes with the obligation to represent the client fully within the law.
"This obligation, in its fullest sense, is the heart of the adversary process. Each attorney, as an advocate, acts for and seeks that which in his judgment is best for his client, within the bounds authoritatively established. The advocate does not decide what is just in this case–he would be usurping the function of the judge and Jury-he acts for and seeks for his client that which he is en-titled to under the law. He can do no less and properly represent the client." Thode, The Ethical Standard for the Advocctte, 39 Texas L.Rev. 575, 584 (1961).
"The [Texas public opinion] survey indicates that dis-trust of the lawyer can be traced dlrectly to certain factors. Foremost of these is a basic misunderstanding of the function of the lawyer as an advocate In an ad-versary system.
"Lawyers are accused of taking advantage of ‘Ioopholes’ and ‘technicalities’ to win. Persons who make this charge are unaware, or do not understand, that the lawyer is hired to win, and if he does not exercise every legiti-mate effort in his client’s behalf, then he is betraying
inclu des Disciplinary Rules and enforceable pro-fessional regulations.4 The professional respon-sibility of a lawyer derives from his membership in a profession which has the duty of assisting members of the public to secure and protect avail-able legal rights and benefits. In our government of laws and not of men, each member of our so-ciety is entitled to have his conduct judged and regulated in accordance with the law; 5 to seek
a sacred trust." Rochelle & Payne, The Struggle for Public Understanding, 25 Texas B.T. 109, 159 (1962).
"The importante of the attorney’s undivided allegiance and falthful service to one accused of crime, irrespective of the attorney’s personal opinion as to the guilt of bis client, lies in Canon 5 of the American Bar Association Canon of Ethics.
"The difficulty lies, of course, in ascertaining whether the attorney has been guilty of an error of judgment, such as an election with respect to trial tactics, or has otherwise been actuated by his conscience or belief that his client should be convicted in any event. All too frequently courts are called upon to review actions of defense counsel which are, at the most, errors of judgment, not properly reviewable on habeas corpus un-less the trial is a farce and a mockery of justice which
requires the court to intervene. . . But when defense counsel, in a truly adverse proceeding, admits that his conscience would not permit him to adopt certain customary trial procedures, this extends beyond the realm of judgment and strongly suggests an invasion of con-stitutional rights." Johns v. Smyth, 176 F.Supp. 949, 952 (E.D.Va.1959), modified, United States ex rel. Wilkins v. Banmiller, 205 F.Supp. 123, 128, n. 5 (E.D.Pa•1962), aff’d, 325 F.2d 514 (3d Cir. 1963), cert. denied, 379 U.S. 847, 13 L.Ed.2d 51, 85 S.Ct. 87 (1964).
"The adversary system in law administration bears a striking resemblance to the competitive economic system In each we assume that the individual through partisan-ship or through self-interest will strive mightily for his side, and that kind of striving we must have. But neither system would be tolerable without restraints and modi-fications, and at times without outrlght departures from the system ltself. Since the legal profession is entrusted with the system of law administration, a part of its task is to develop in its members appropriate restraints without impairing the values of partisan striving. An accompany-ing task is to aid in the modification of the adversary sys-tem or departure from it in arcas to which the system is unsuited." Cheatham, The Lawyer’s Role and Surround-ings, 25 Rocky Mt. L.Rev. 405, 410 (1953).
4 "Rule 4.15 prohibits, in the pursuit of a client’s cause, ‘any manner of fraud or chicana’; Rule 4.22 requires ‘can-dor and falrness’ In the conduct of the lawyer, and for-bids the making of knowing misquotations; Rule 4.47 provldes that a lawyer ‘should always malntain his in-tegrity,’ and generally forbids all misconduct injurious to the interests of the public, the courts, or his cllents, and acts contrary to ‘justice, honesty, modesty or good morals.’ Our Commissioner has accurately paraphrased these rules as follows ‘An attorney does not have the duty to do all and whatever he can that may enable him to win his client’s cause or to further his client’s interest. His duty and efforts in these respects, although they should be prompted by his "entire devotion" to the interest of his client, must be within and not without the bounds of the law.’ " In re Wines, 370 S.W.2d 328, 333 (Mo.1963). See Note, 38 Texas L.Rev. 107, 110 (1959).
5 "Under our system of government the process of ad-judication is surrounded by safeguards evolved from cen-turles of experlence. These safeguards are not designed merely to lend formality and decorum to the t,ial of causes. They are predicated on the assumptlon that to se-
any lawful objective 6 through legaily permissible means; 7 and to present for adjudication any law-ful claim, issue, or defense.
EC 7-2 The bounds of the law in a given case are often difficult to ascertain.8 The language of legislative enactments and judicial opinions may be uncertain as applied to varying factual situa-tions. The limits and specific meaning of ap-parently relevant law may be made doubtful by changing or developing constitutional interpreta-tions, inadequately expressed statutes or judicial opinions, and changing public and judicial at-titudes. Certainty of law ranges from well-settled rules through areas of conflicting authority to areas without precedent.
EC 7-3 Where the bounds of law are uncertain, the action of a lawyer may depend on whether he is serving as advocate or adviser. A lawyer may serve simultaneously as both advocate and adviser, but the two roles are essentially different.8 In
cure for any controversy a truly informed and dispassion-ate decision is a difficult thing, requiring for lts achieve-ment a speclal summoning and organtzatlon of human ef-fort and the adoption of measures to exclude the biases and prejudgments that have free play outslde the courtroom. All of this goes for naught if the man with an unpopular cause is unable to find a competent lawyer courageous enough to represent him. His chance to have his day in court loses much of its meaning if his case is handicapped from the outset by the very kind of prejudgment our rules of evidence and procedure are intended to prevent." Professional Responsibility: Report of the Joint Con-ference, 44 A.B.A.J. 1159, 1216 (1958).
6 "[lit is . . . [the tax lawyer’s] positive duty to show the client how to aval] himself to the full of what the law permits. He is not the keeper of the Congres-slonal conscience." Paul, The Lawyer as a Ter Adviser, 25 Rocky Mt.L.Rev. 412, 418 (1953).
7 See ABA Canons 15 and 30.
8 "The fact that it desired to evade the law, as it is called, is immaterial, because the very meaning of a une in the law is that you intentionally may go as close to
it as you can if you do not pass it . It is a mat- ter of proximity and degree as to which minds will differ . . .." Justice Holmes, in Superior Oil Co. v. Missis-sippi, 280 U.S. 390, 395-96, 74 L.Ed. 504, 508, 50 S.Ct. 169, 170 (1930).
9 "Today’s lawyers perform two distinct types of func-tions, and our ethical standards should, but in the maln do not, recognize these two functions. Judge Phllbrick McCoy recently reported to the American Bar Association the need for a reappraisal of the Canons in light of the new and distinct functlon of counselor, as distinguished from advocate, which today predominates in the legal pro-fession. . . .
. In the flrst place, any revision of the canons must take into account and speak to thls new and now predomlnant functlon of the lawyer. . . . It is be-yond the scope of thls paper to discuss the ethical stand-ards to be applied to the counselor except to state that in my opinion such standards should require a greater recognitlon and protection for the interest of the public generally than le presently expressed in the canons. Also, the counselor’s obligation should extend to requiring hlm to inform and to impress upon the client a just solu-tion of the problem, considering all interests involved." Thode, The Ethical Standard for the Advocate, 39 Texas L.Rev. 575, 578-79 (1961).
asserting a position on behalf of his client, an advocate for the most part deals with past con-duct and must take the facts as he finds them. By contrast, a lawyer serving as adviser primarily assists his client in determining the course of fu-ture conduct and relationships. While serving as advocate, a lawyer should resolve in favor of his client doubts as to the bounds of the law.18 In serving a client as adviser, a lawyer in appropriate circumstances should give his professional opinion as to what the ultimate decisions of the courts would likely be as to the applicable law.
Duty of the Lawyer to a Client
EC 7-4 The advocate may urge any permissible construction of the law favorable to his client, without regard to his professional opinion as to the likelihood that the construction will ultimate-ly prevai1,11 His conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modi-f ication, or reversal of the law. However, a law-yer is not justified in asserting a position in liti-gation that is frivolous.12
"The man who has been called finto court to answer for his own actions is entitied to fair hearing. Partisan ad-vocacy plays lts essential part in such a hearing, and the lawyer pleading his client’s case may properly present it in the most favorable light. A similar resolution of doubts in one direction becomes inappropriate when the lawyer acts as counselor. The reasons that justify and even require partisan advocacy in the trial of a cause do not grant any license to the lawyer to particípate as legal ad-visor in a line of conduct that is lmmoral, unfair, or of doubtful legality. In saving himself from thls unworthy
involvement, the lawyer cannot be guided solely by an un-reflective inner sense of good faith : he must be at pains
to preserve a sufficient detachment from his client’s In-terests so that he remains capable of a sound and objec-tive appratsal of the propriety of what his client proposes to do." Professional Responsibility: Report of the Joint Con! erence, 44 A.B.A.J. 1159, 1161 (1958).
10 "[A] lawyer who 1s asked to advise his client
. . may freely urge the statement of positlons most favorable to the client just as long as there is reasonable basls for those positions." ABA Opinion 5L (1965).
11 "The lawyer . . . is not an umpire, but an ad-vocate. He is under no duty to refrain from making every proper argument in support of any legal point because he is not convinced of its inherent soundness. .
His personal belief in the soundness of his cause or of the authorities supporting it, is irrelevant." ABA Opinion 280 (1949).
"Counsel apparently misconceived his role. It was his duty to honorably present his client’s contentions in the light most favorable to his client. Instead he presumed to advise the court as to the validity and sufficiency of prisoner’s motion, by letter. We therefore conclude that the prisoner had no effective assistance of counsel and remand this case to the District Court with instructions to set aside the Judgment, appoint new counsel to represent the prisoner if he makes no objection thereto, and proceed anew." McCartney v. United States, 343 F.2d 471, 472 (9th Cir. 1965).
12 "Here the court-appointed counsel had the transcript but refused to proceed with the appeal because he found
no merit in it. . . We cannot say that there was a finding of frivolity by either of the California courts or EC 7-5 A lawyer as adviser furthers the inter-est of his client by giving his professional opinion as to what he believes would likely be the ulti-mate decision of the courts on the matter at hand and by informing his client of the practical effect of such decision.13 He may continue in the rep-resentation of his client even though his client has elected to pursue a course of conduct contrary to the advice of the lawyer so long as he does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal posi-tion. A lawyer should never encourage or aid his client to cornmit criminal acts or counsel his client on how to violate the law and avoid punishment therefor.14
EC 7-6 Whether the proposed action of a lawyer is within the bounds of the law may be a perplex-
that counsel acted in any greater capacity than merely as amicus curiae which was condemned in Ellis, supra. Hence California’s procedure did not furnish petitioner with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the mat-ter as Is obtained when counsel is acting in that capacity.
"The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity.
should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examina-tion of it, he should so advise the court and request per-mission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of coun-sel’s brief should be furnished the indigent and time al-lowed him to raise any points that he chooses; the court-not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal Insofar as federal re-quirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Anders v. California, 386 U.S. 738, 744, 18 L.Ed. 2d 493, 498, 87 S.Ct. 1396, 1399-1400 (1967), rehearing de-nied, 388 U.S. 924, 18 L.Ed.2d 1377, 87 S.Ct. 2094 (1967).
See Paul, The Lawyer As a Tax Adviser, 25 Rocky Mt. L.Rev. 412, 432 (1953).
13 See ABA Canon 32.
14 -For a lawyer to represent a syndicate notoriously engaged in the violation of the law for the purpose of ad-vising the members how to break the law and at the same time escape it, is manifestly improper. While a lawyer may see to it that anyone accused of crime, no matter how serious and flagrant, has a fair trial, and present all available defenses, he may not co-operate in planning vio-lations of the law. There is a sharp distinction, of course, between advising what can lawfully be done and advising how unlawful acts can be done in a way to avoid con-viction. Where a lawyer accepts a retainer from an organization, known to be unlawful, and agrees in ad-vence to defend its members when from time to time they are accused of crime arising out of its unlawful activities, this is equally improper."
"See also Opinion 155." ABA Opinion 281 (1952).
ing question when his client is contemplating a course of conduct having legal consequence that vary according to the client’s intent, motive, or de-sires at the time of the action. Often a lawyer is asked to assist his client in developing evidence relevant to the state of mind of the client at a particular time. He may properly assist his client in the development and preservation of evidence of existing motive, intent, or desire; obviously, he may not do anything furthering the creation or preservation of false evidence. In many cases a lawyer may not be certain as to the state of mind of his client, and in those situations he should re-solve reasonable doubts in favor of his client.
EC 7-7 In certain areas of legal representation not affecting the merits of the cause or substan-tially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But other-wise the authority to make decisions is exclusively that of the client and, if made within the frame-work of the law, such decisions are binding on his lawyer. As typical examples in civil cases, it is for the client to decide whether he will accept a settlement offer or whether he will waive his right to plead an affirmative defense. A defense law-yer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the pros-pects of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken.15
EC 7-8 A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant con-siderations. A lawyer ought to initiate this de-cision-making process if the client does not do so. Advice of a lawyer to his client need not be con-fined to purely legal considerations.16 A lawyer should advise his client of the possible effect of each legal alternative.17 A lawyer should bring to bear upon this decision-making process the full-ness of his experience as well as his objective viewpoint.’8 In assisting his client to reach a
11 See ABA Special Committee on Minimum Standards for the Administration of Criminal Justice, Standards Re-lating to Pleas of Guilty pp. 69-70 (1968).
1G "First of all, a truly great lawyer is a wise counselor to all manner of men in the verted crises of their lives when they most need disinterested advice. Effective counseling necessarily involves a thoroughgoing knowledge of the principies of the law not merely as they appear in the books but as they actually operate in action." Van-derbilt, The Five Functions of the Lawyer : Service to Clients and the Public, 40 A.B.A.J. 31 (1954).
17 lawyer should endeavor to obtain full knowledge of
his client’s cause before advising thereon. . . ." ABA Canon 8.
19 -Mil devising charters of collaborative effort the lawyer often acts where all of the affected parties are present as participants. But the lawyer also performs a similar function in sltuations where this is not so, as, for example, In planning estates and drafting wIlls. Here the Instrument defining the terms of collaboration maY affect persons not present and often not born. Yet here, too, the good lawyer does not serve merely as a legal con-duit for bis client’s desires, but as a wise counselor, ex-proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally per-missible.19 He may emphasize the possibility of harsh consequences that might result from as-sertion of legally permissible positions. In the final analysis, however, the lawyer should always remember that the decision whether to forego le-gally available objectives or methods because of non-legal factors is ultimately for the client and not for himself, In the event that the client in a non-adjudicatory matter insists upon a course of conduct that is contrary to the judgment and ad-vice of the lawyer but not prohibited by Disciplin-ary Rules, the lawyer may withdraw from the employment.20
EC 7-9 In the exercise of his professional judg-ment on those decisions which are for his deter-mination in the handling of a legal matter,21 a law-yer should always act in a manner consistent with the best interests of his client.22 However, when an action in the best interest of his client seems to him to be unjust, he may ask his client for permission to forego such action 23
EC 7-10 The duty of a lawyer to represent his client with zeal does not militate against his con-current obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.
EC 7-11 The responsibilities of a lawyer may vary according to the intelligence, experience, men-
Perienced in the art of devlsing arrangements that wIll put in workable order the entangled affairs and interests of human beings." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1162 (1958).
19 See. ABA Canon 8.
"Vital as is the lawyer’s role In adjudication, it should not be thought that 11 is only as an advocate pleading In open court that he contributes to the administration of the law. The most effective realization of the law’s aims of ten takes place in the attorney’s office, where litigation is forestalled by anticipating its outcome, where the law-yer’s qulet counsel takes the place of public force. Con-trary to popular belief, the compllance with the law thus brought about is not generally lip-serving and narrow, for by reminding him of its long-run costs the lawyer often deters his client from a course of conduct technically per-missible under existing law, though inconslstent with its underlying spirit ami purpose." Professional Responsi-bility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1161 (1958).
20 • ‘my summation of Judge Sharswood’s view of the advocate’s duty to the client is that he owes to the client the duty to use all legal means In support of the cllent’s case. However, at the same time Judge Sharswood recog-nized that many advocates would find this obligation un-bearable if applicable without exception. Therefore, the individual lawyer is given the choice of representing his client fully within the bounds set by the law or of telling his client that he cannot do so, so that the client may ob-tain another attorney if he wishes." Thode, The Ethical Standard for the Advocate, 39 Texas L.Rev. 575, 582 (1961).
Cf. Code of Professional Responsibility, DR 2-110 (C).
21 See ABA Canon 24.
22 Thode, The Ethical Standard for the Advocate, 39 Texas L.Rev. 575, 592 (1961).
23 Cf. ABA Opinions 253 (1946) and 178 (1938).
tal condition or age of a client, the obligation of a public of ficer, or the nature of a particular pro-ceeding. Examples include the representation of an illiterate or an incompetent, service as a pub-lic prosecutor or other government lawyer, and appearances bef ore administrative and legislative bodies.
EC 7-12 Any mental or physical condition of a client that renders him incapable of making a con-sidered judgment on his own behalf casts addi-tional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are nor-mally the prerogative of the client to make. If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the law-yer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make deci-sions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. But obviously a lawyer cannot perforen any act or make any decision which the law re-quires his client to perform or make, either act-ing for himself if competent, or by a duly consti-tuted representative if legally incompetent.
EC 7-13 The responsibility of a public prosecutor dif fers from that of the usual advocate; his duty is to seek justice, not merely to convict.24 This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of govern-mental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the ac-cused is to be given the benefit of all reasonable
24 See ABA Canon 5 and Berger v. United States, 295 U.S. 78, 79 L.Ed. 1314, 55 S.Ct. 629 (1935).
"The public prosecutor cannot take as a guide for the conduct of his office the standards of an attorney appear-ing on behalf of an individual client. The freedom else-where wisely granted to a partisan advocate must be severely curtalled if the prosecutor’s duties are to be prop-erly discharged. The public prosecutor must recall that he occupies a dual role, being obligated, on the one hand. to furnish that adversary element essential to the in-formed decision of any controversy, but being possessed, on the other, of important governmental powers that are pledged to the accomplishment of one objective only, that of impartial justice. Where the prosecutor is recreant to the trust implicit in bis office, he undermines confidence, not only in his profession, but in government and the very ideal of justice itself." Professional Responsibility: Re-port of the Joint Conference, 44 A B.A.J. 1159, 1218 (1958).
"The prosecuting attorney is the attorney for the state, and it is his prlmary duty not to convlct but to see that justice is done." ABA Opinion 150 (1936).
doubts. With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice: the prose-cutor should make timely disclosure to the de-fense of available evidence, known to him, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punish-ment. Further, a prosecutor should not intention-ally avoid pursuit of evidence merely because he believes it will damage the prosecution’s case or aid the accused.
EC 7-14 A government lawyer who has discre-tionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair. A government lawyer not hav-ing such discretionary power who believes there is lack of merit in a controversy submitted to him should so advise his superiora and recommend the avoidance of unfair litigation. A government law-yer in a civil action or administrative proceeding has the responsibility to seek justice and to de-velop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results.
EC 7-15 The nature and purpose of proceedings before administrative agencies vary widely. The proceedings may be legislative or quasi-judicial, or a combination of both. They may be ex parte in character, in which event they may originate either at the instance of the agency or upon mo-tion of an interested party. The scope of an in-quiry may be purely investigative or it may be truly adversary looking toward the adjudication of specific rights of a party or of classes of parties. The foregoing are but examples of some of the types of proceedings conducted by administrative agencies. A lawyer appearing before an admin-istrative agency,25 regardless of the nature of the proceeding it is conducting, has the continuing duty to advance the cause of his client within the bounds of the law.26 Where the applicable rules of the agency impose specific obligations upon a lawyer, it is his duty to comply therewith, unless the lawyer has a legitimate basis for challenging the validity thereof. In all appearances before administrative agencies, a lawyer should identify himself, his client if identity of his client is not privileged,27 and the representative nature of his appearance. It is not improper, however, for a
25 As to appearances before a department of government,
Canon 26 provides: "A lawyer openly . may render
professional services . . in advocacy of claims be-
fore depa’rtments of government, upon the same principies of ethics which justify his appearance before the Courts
. . ."
25 "But as an advocate before a service which itself represents the adversary point of view, where his client’s case is fairly arguable, a lawyer is under no duty to dis-close its weaknesses, any more than he would be to make such a disclosure to a brother lawyer. The limitations within which he must operate are best expressed in Canon 22……ABA Opinión 314 (1965).
27 See Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960).
lawyer to seek from an agency information avail-able to the public without identifying his client.
EC 7-16 The primary business of a legislative body is to enact laws rather than to adjudicate controversies, although on occasion the activities of a legislative body may take on the characteris-tics of an adversary proceeding, particularly in in-vestigative and impeachment matters. The role of a lawyer supporting or opposing proposed legis-lation normally is quite different from his role in representing a person under investigation or on trial by a legislative body. When a lawyer ap-pears in connection with proposed legislation, he seeks to affect the lawmaking process, but when he appears on behalf of a client in investigatory or impeachment proceedings, he is concerned with the protection of the rights of his client. In ei-ther event, he should identify himself and his client, if identity of his client is not privileged, and should comply with applicable laws and leg-islative rules.28
EC 7-17 The obligation of loyalty to his client applies only to a lawyer in the discharge of his professional duties and implies no obligation to adopt a personal viewpoint favorable to the in-terests or desires of his client.29 While a lawyer must act always with circumspection in arder that his conduct will not adversely affect the rights of a client in a matter he is then handling, he may take positions on public issues and espouse legal reforms he favors without regard tu the individual views of any client.
EC 7-18 The legal system in its broadest sense functions best when persons in need of legal ad-vice or assistance are represented by their own counsel. For this reason a lawyer should not com-municate on the subject matter of the representa-tion of his client with a person he knows to be represented in the matter by a lawyer, unless pur-suant to law or rule of court or unless he has the consent of the lawyer for that person.30 If one is not represented by counsel, a lawyer represent-ing another may have to deal directly with the unrepresented person; in such an instance, a law-
28 See ABA Canon 26.
2J "Law should be so practiced that the lawyer re-mains free to make up his own mind how he will vote, what causes he will support, what economic and political philosophy he will espouse. It is une of the glories of the profession that it admits of this freedom. Distinguished examples can be cited of lawyers whose views were at variance from those of their clients, lawyers whose skill and wisdom make them valued advisers to those who had little sympathy with their views as citizens." Professional Responsibility: Report of the Joint Conference, 44 A.B. A.T. 1159, 1217 (1958).
"No doubt some tax lawyers feel constrained to abstain from activities on behalf of a better tax system because they think that their clients may object. Clients have no right to object if the tax adviser handles their affairs competently and faithfully and independently of his pri-vate views as to tax policy. They buy his expert services. not his private opiniOns or his silente on issues that grave-ly affect the public interest." Paul, ‘l’he Lawyer as a Tal’ Adviser, 25 Rocky Mt.L.Rev. 412, 434 (1953).
30 See ABA Canon 9.
yer should not undertake to give advice to the person who is attempting to represent himself,31 except that he may advise him to obtain a lawyer.
Duty of the Lawyer to the Adversary System of Justice
EC 7-19 Our legal system provides for the ad-judication of disputes governed by the rules of substantive, evidentiary, and procedural law. An adversary presentation counters the natural hu-man tendency to judge too swiftly in terms of the familiar that which is not yet fully known; 3.1 the advocate, by his zealous preparation and presenta-tion of facts and law, enables the tribunal to come to the hearing with an open and neutral mind and to render impartial judgments.33 The duty of a lawyer to his client and his duty to the legal sys-tenn are the same: to represent his client zealous-ly within the bounds of the law.34
EC 7-20 In order to function properly, our ad-judicative process requires an informed, impartial tribunal capable of administering justice prompt-ly and efficiently 35 according to procedures that command public confidence and respect.36 Not on-ly must there be competent, adverse presentation of evidente and issues, but a tribunal must be aided by rules appropriate to an effective and dig-nified process. The procedures under which tribu-nals operate in our adversary system have been prescribed largely by legislative enactments, court rules and decisions, and administrative rules. Through the years certain concepts of proper pro-fessional conduct have become rules of law ap-plicable to the adversary adjudicative process. Many of these concepts are the bases for stand-ards of professional conduct set forth in the Dis-ciplinary Rules.
EC 7-21 The civil adjudicative process is pri-marily designed for the settlement of disputes be-tween parties, while the criminal process is de-
31 Id.
See Professional Responsibility: Report of the Joint Conferen.ce, 44 A.B.A.S. 1159. 1160 (1958).
33 "Without the participation of someone who can act responsibly for each of I he parties, this essential narrow-ing of the issues [by exchange of written pleadings or stip-ulations of counsell becomes impossible. But here again the true significance of partisan advocacy lies deeper, touch-ing once more the integrity of the adjudicative process it-self. It is only through the advocate’s participation that the hearing may remain in fact what it purports to be in theory : a public trial of the facts and issues. Each ad-vocate comes to the hearing prepared to present his proofs and argumenta, knowing at the same time that his argu-menta may fail to persuade and that his proof may be re-
jected as inadequate. . . The deciding tribunal, on the other hand, comes to the hearing uncommitted. It has not represented to the public that any fact can be proved, that any argument is sound, or that any par-ticular way of stating a litigant’s case is the most effec-tive expression of its merits." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1160-61 (1958).
34 Cf, ABA Canons 15 and 32. 31 Cf. ABA Canon 21.
3(1 See Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1.159, 1216 (1958).
signed for the protection of society as a whole. Threatening to use, or using, the criminal process to coerce adjustment of private civil claims or con-troversies is a subversion of that process; 37 fur-ther, the person against whom the criminal proc-ess is so misused may be deterred from asserting his legal rights and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the im-proper use of criminal process tends to diminish public confidence in our legal system.
EC 7-22 Respect for judicial rulings is essential to the proper administration of justice; however, a litigant or his lawyer may, in good faith and within the framework of the law, take steps to test the correctness of a ruling of a tribunal.38
EC 7-23 The complexity of law of ten makes it difficult for a tribunal to be fully informed unless the pertinent law is presented by the lawyers in the cause. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter bef ore it. The adversary system contemplates that each lawyer will present and argue the existing law in the light most favorable to his client 39 Where a lawyer knows of legal authority in the control-ling jurisdiction directly adverse to the position of his client, he should inform the tribunal of its ex-istence unless his adversary has done so; but, hav-ing made such disclosure, he may challenge its soundness in whole or in part.40
37 "We are of the opinion that the letter in question was improper, and that in writing and sending it respond-ent was guilty of unprofessional conduct. This court has heretofore expressed its disapproval of using threats of criminal prosecution as a means of forcing settlement of civil claims. .
"Respondent has been guilty of a violation of a principie which condemns any confusion of threats of criminal prosecution with the enforcement of civil claims. For this misconduct he should be severely censured." Matter of Gelman, 230 App.Div. 524, 527, 245 N.Y.S. 416, 419 (1930).
38 "An attorney has the duty to protest the interests of his client. He has a rlght to presa legitimate argument and to protest an erroneous ruling." Gallagher v. Munici-pal Court, 31 Ca1.2d 784, 796, 192 P.2d 905, 913 (1948).
"There must be protection, however, in the far more frequent case of the attorney who stands on his rights and combats the order in good faith and without disrespect believing with good cause that it is void, for it is here that the independence of the bar becomes valuable." Note,
39 Colum.L.Rev. 433, 438 (1939).
39 "Too many do not understand that accomplishment of the layman’s abstract ideas of justice is the function of the judge and jury, and that it is the lawyer’s sworn duty to portray his client’s case in its most favorable light." Rochelle and Payne, The Struggle for Public Understand-ing, 25 Texas B.J. 109, 159 (1962).
40 "We are of the opinion that this Canon requires the lawyer to disclose such decisions [that are adverse to his client’s contentions] to the court. He may, of course, alt-er doing so, challenge the soundness of the decisions or present reasons which he belíeves would warrant the court in not following them in the pending case." ABA Opinion 146 (1935).
Cf. ABA Opinion 280 (1949) and Thode, The Ethical Standard for the Advocate, 39 Texas L.Rev. 575, 585-86
EC 7-24 In order to bring about just and in-formed decisions, evidentiary and procedural rules have been established by tribunals to permit the inclusion of relevant evidence and argument and the exclusion of all other considerations. The ex-pression by a lawyer of his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the cuipability of a civil litigant, or as to the guilt or innocence of an accused is not a proper subject for argument to the trier of fact.41 It is improper as to factual matters be-cause admissible evidence possessed by a lawyer should be presented only as sworn testimony. It is improper as to all other matters because, were the rules otherwise, the silente of a lawyer on a given occasion could be construed unfavorably to his client. However, a lawyer may argue, on his analysis of the evidence, for any position or conclusion with respect to any of the foregoing matters.
EC 7-25 Rules of evidence and procedure are de-signed to lead to just decisions and are part of the frarnework of the law. Thus while a lawyer may take steps in good faith and within the frame-work of the law to test the validity of rules, he is not justified in consciously violating such rules and he should be diligent in his efforts to guard against his unintentional violation of them.42 As examples, a lawyer should subscribe to or verify only thóse pleadings that he believes are in com-pliance with applicable law and rules; a lawyer should not make any prefatory statement before a tribunal in regard to the purported facts of the case on trial unless he believes that his statement will be supported by admissible evidence; a law-yer should not ask a witness a question solely for the purpose of harassing or embarrassing him; and a lawyer should not by subterfuge put be-fore a jury matters which it cannot properly con-sider.
EC 7-27 Because it interferes with the proper ad-ministration of justice, a lawyer should not sup-press evidence that he or his client has a legal ob-ligation to reveal or produce. In like manner, a lawyer should not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavail-able as a witness therein.46
EC 7-28 Witnesses should always testify truth-fully 47 and should be free from any financial in-ducements that might tempt them to do other-wise.48 A lawyer should not pay or agree to pay a non-expert witness an amount in excess of re-imbursement for expenses and financial loss in-cident to his being a witness; however, a lawyer may pay or agree to pay an expert witness a rea-sonable fee for his services as an expert. But in no event should a lawyer pay or agree to pay a contingent fee to any witness. A lawyer should exercise reasonable diligente to see that his client and lay associates conform to these standards:19
EC 7-29 To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against extraneous in-fluences.50 When impartiality is present, public confidence in the judicial system is enhanced. There should be no extrajudicial communication with veniremen prior to trial or with jurors during trial by or on behalf of a lawyer connected with the case. Furthermore, a lawyer who is not con-nected with the case should not communicate with
a matter vital te the issue under consideration.
"Respondent next urges that it was his duty to observe the utmost good faith toward his client, and therefore he could not divulge any confidential information. This duty to the client of course does not extend to the point of authorizing collaboration with him in the commission of fraud." In re Carroll, 244 S.W.2d 474, 474-75 (Ky. 1951).
45 "Under any standard of proper ethical conduct an attorney should not sit by silently and permit his client to commit what may have been perjury, and which cer-
tainly would mislead the court and the opposing narty on 50 See ABA Canon 23.
LVII
EC 7-26 The law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence.43 A lawyer who knowingly 44 par-ticipates in introduction of such testimony or evi-dence is subject to discipline. A lawyer should, however, present any admissible evidence his client desires to have presented unless he knows, or from facts within his knowledge should know, that such testimony or evidence is false, fraudulent, or per-j ured.45
41 See ABA Canon 15.
"The traditional duty of an advocate is that he honor-ably uphold the contentions of his client. He should not voluntarlly undermine them." Harders v. State of Cali-fornia, 373 F.2d 839, 842 (9th Clr. 1967).
42 See ABA Canon 22.
43 Id. Cf. ABA Canon 41.
44 See generally ABA Opinion 287 (1953) as to a lawyer’s duty when he unknowingly participates in introducing perjured testimony.
46 See ABA Canon 5; cf. ABA Opinion 131 (1935).
47 Cf. ABA Canon 39.
48 "The prevalence of perjury is a serious menace to the administration of justice, to prevent which no means have as yet been satisfactorily devised. But there certainly can be no greater incentive to perjury than to allow a party to make payments to its opponents witnesses under any guise or on any excuse, and at least attorneys who are of-ficers of the court to aid it in the administration of jus-tice, must keep themselves clear of any connection which in the slightest degree tends to induce witnesses to testi-fy in favor of their clients." In re Robinson, 151 App.Div. 589, 600, 136 N.Y.S. 548, 556-57 (1912), aff’d, 209 N.Y. 354, 103 N.E. 160 (1913).
49 "It will not do for an attorney who seeks to justify himself against charges of this kind to show that he has escaped criminal responsibility under the Penal Law, nor can he blindly shut his eyes to a system which tends to suborn witnesses, to produce perjured testimony, and to suppress the truth. He has an active affirmative duty te protect the administration of justice from perjury and fraud, and that duty is not performed by allowing his subordinates and assistants to attempt to subvert justice and procure results for his clients based upon false testi-mony and perjured witnesses." Id., 151 App.Div. at 592, 136 N.Y.S. at 551.
or cause another to communicate with a venire-man or a juror about the case. After the trial, communication by a lawyer with jurors is per-mitted so long as he refrains from asking ques-tions or making comments that tend to harass or embarrass the juror 51 or to influence actions of the juror in future cases. Were a lawyer to be prohibited from communicating after trial with a juror, he could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected.52 When an extrajudicial communication by a lawyer with a juror is permitted by law, it should be made considerately and with deference to the personal feelings of the juror.
EC 7-30 Vexatious or harassing investigations of veniremen or jurors seriously impair the effective-ness of our jury system. For this reason, a law-yer or anyone on his behalf who conducts an in-vestigation of veniremen or jurors should act with circumspection and restraint.
EC 7-31 Communications with or investigations of members of families of veniremen or jurors by a lawyer or by anyone on his behalf are subject to the restrictions imposed upon the lawyer with respect to his communications with or investiga-tions of veniremen and jurors.
EC 7-32 Because of his duty to aid in preserving the integrity of the jury system, a lawyer who learns of improper conduct by or towards a venire-man, a juror, or a member of the family of either should make a prompt report to the court regard-ing such conduct.
EC 7-33 A goal of our legal system is that each party shall have his case, criminal or civil, ad-judicated by an impartial tribunal. The attain-ment of this goal may be defeated by dissemina-tion of news or comments which tend to influence judge or jury.53 Such news or comments may
51 "[I]t is unfair to jurors to permit a disappointed liti-gant to pick over their private associations in search of something to discredit them and their verdict. And it would be unfair to the public too if jurors should under-stand that they cannot convict a man of means without risking an ínquiry of that kind by paid investigators, with, to boot, the distortions an inquiry of that kind can pro-duce." State v. LaFera, 42 N.J. 97, 107, 199 A.2d 630, 636 (1964).
52 ABA Opinion 319 (1968) points out that "[m]any courts today, and the trend is in this direction, allow the testi-mony of jurors as to all irregularities in and out of the courtroom except those irregularities whose existence can be determined only by exploring the consciousness of a single particular juror, New Jersey v. Kociolek, 20 N.J. 92, 118 A.2d 812 (1955). Model Code of Evidente Rule 301. Certainly as to states in which the testimony and affidavits of jurors may be received in support of or against a mo-tion for new trial, a lawyer, in his obligation to protect his client, must have the tools for ascertaining whether or not grounds for a new trial exist and it is not unethical for him to talk to and question jurors."
53 Generally see ABA Advisory Committee on Fair Trial and Free Press, Standards Relating to Fair Trial and Free Press (1966).
prevent prospective jurors from being impartial at the outset of the trial54 and may also interfere with the obligation of jurors to base their verdict solely upon the evidence admitted in the tria1.55
"[T]he trial court might well have proscribed extra-judicial statements by any lawyer, party, witness, or court
official which divulged prejudicial matters . . See State v. Van Dwyne, 43 N.J. 369, 389, 204 A.2d 841, 852 (1964), in which the court interpreted Canon 20 of the American Bar Association’s Canons of Professional Ethics to prohibit such statements. Being advised of the great public interest in the case, the mass coverage of the press, and the potential prejudicial impact of publicity, the court could also have requested the appropriate city and county officials to promulgate a regulation with respect to dissemination of information about the case by their employees. In addition, reporters who wrote or broad-cast prejudicial stories, could have been warned as to the impropriety of publishing material not introduced in the
proceedings. . In this manner, Sheppard’s right to a trial free from outside interferente would have been given added protection without corresponding curtailment of the news media. Had the judge, the other officers of the court, and the police placed the interest of justíce first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom—not pieced together from extrajudicial state-ments." Sheppard v. Maxwell, 384 U.S. 333, 361-62, 16 L. E.2d 600, 619-20, 86 S.Ct. 1507, 1521-22 (1966).
"Court proceedings are held for the solemn purpose of endeavoring to ascertain the truth which is the sine qua non of a fair trial. Over the centuries Anglo-American courts have devised careful safeguards by rule and other-wise to protect and facilítate the performance of this high function. As a result, at this time those safeguards do not permit the televising and photographing of a criminal trial, save in two States and there only under restrictions. The federal courts prohibit it by specific rule. This is weighty evidence that our concepts of a fair trial do not tolerate such an indulgente. We have always held that the atmosphere essential to the preservation of a fair trial—the most fundamental of all freedoms—must be maintained at all costs." Estes v. State of Texas, 381 U.S. 532, 540, 14 L.Ed.2d 543, 549, 85 S.Ct. 1628, 1631-32 (1965), rehearing denied, 382 U.S. 875, 15 L.Ed.2d 118, 86 S.Ct. 18 (1965).
54 "Fretriai can create a major problem for the defend-ant in a criminal case. Indeed, it may be more harmful than publicity during the trial for it may well set the com-munity opinion as to guilt or innocence. . . . The trial witnesses present at the hearing, as well as the original jury panel, were undoubtedly made aware of the peculiar public importante of the case by the press and television coverage being provided, and by the fact that they themselves were televised live and their pictures re-broadcast on the evening show." Id., 381 U.S. at 536-37, 14 L.Ed.2d at 546-47, 85 S.Ct. at 1629-30.
5, "The undeviating rule of this Court was expressed by Mr. Justice Holmes over half a century ago in Patterson v. Colorado, 205 U.S. 454, 462 (1907) :
The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in upen court, and not by any outside influ-ence, whether of private talk or public print."
Sheppard v. Maxwell, 384 U.S. 333, 351, 16 L.Ed.2d 600, 614, 86 S.Ct. 1507, 1516 (1966).
"The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors
of news articles concerning the trial. . . Generaliza- tions beyond that statement are not profitable, because each case must turn on its special facts. We have here the exposure of jurors to information of a character whichThe release by a lawyer of out•of-court statements regarding an anticipated or pending trial may im-properly affect the impartiality of the tribuna1.56 For these reasons, standards for permissible and prohibited conduct of a lawyer with respect to trial publicity have been established.
EC 7-34 The impartiality of a public servant in our legal system may be impaired by the receipt of gifts or loans. A lawyer,57 therefore, is never justified in making a gift or a loan to a judge, a hearing officer, or an official or employee of a tribuna1,58 except as permitted by Section C(4) of Cannon 5 of the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial office in con-
the trial judge ruled was so prejudicial it could not be dlrectly offered as evidence. The prejudice to the defend-ant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part
of the prosecution’s evidence. . . It may indeed be greater for it is then not tempered by protective pro-cedures." Marshall v. United States, 360 U.S. 310, 312-13, 3 L.Ed.2d 1250, 1252, 79 S.Ct. 1171, 1173 (1959).
"The experienced trial lawyer knows that an adverse public opinion is a tremendous disadvantage to the de-fense of his client. Although Brand jurors conduct their deliberations in secret, they are selected from the body of the public. They are likely to know what the general public knows and to reflect the public attitude. Trials are open to the public, and aroused public opinion respect-ing the merits of a legal controversy creates a court room atmosphere which, without any vocal expression in the presence of the petit jury, makes itself felt and has its effect upon the action of the petit jury. Our fundamental concepts of justice and our American sense of fair play require that the petit jury shall be composed of persons with fair and impartial minds and without preconceived views as to the merits of the controversy, and that it shall determine the issues presented to it solely upon the evi-dence adduced at the trial and according, to the law given in the instructions of the trial judge.
"While we may doubt that the effect of public opinion would sway or bias the judgment of the trial judge in an equíty proceeding, the defendant should not be called upon to run that risk and the trial court should not have his work made more difflcult by any dissemination of state-ments to the public that would be calculated to create a public demand for a particular judgment in a prospective or pending case." ABA Opinion 199 (1940).
Cf. Estes v. State of Texas, 381 U.S. 532, 544-45, 14 L. Ed.2d 543, 551, 85 S.Ct. 1628, 1634 (1965), rehearing denied, 381 U.S. 875, 15 L.Ed.2d 118, 86 S.Ct. 18 (1965).
56 See ABA Canon 20.
57 Canon 3 observes that a lawyer "deserves rebuke and denunciation for any device or attempt to gain from a Judge special personal consideration or favor."
See ABA Canon 32.
58 "Judicial Canon 32 provides :
" ‘A judge should not accept any presents or favors from litigants, or from lawyers practicing before him or from others whose interests are likely to be submitted to him for judgment.’
"The language of this Canon is perhaps broad enough to prohibit campaign contributions by lawyers, practicing before the court upon which the candidate hopes to sit. However, we do not think it was intended to prohibit such contributions when the candidate is obligated, by force of circumstances over which he has no control, to conduct a campaign, the expense of which exceeds that which he should reasonably be expected to personally bear!" ABA Opinion 226 (1941).formity with Section B(2) under Canon 7 of the Code of Judicial Conduct.
EC 7-35 All litigants and lawyers should have ac-cess to tribunals on an equal basis. Generally, in adversary proceedings a lawyer should not com-municate with a judge relative to a matter pend-ing before, or which is to be brought before, a tribunal over which he presides in circumstances which might have the effect or give the appear-ance of granting undue advantage to one party.59 For example, a lawyer should not communicate with a tribunal by a writing unless a copy thereof is promptly delivered to opposing counsel or to the adverse party if he is not represented by a lawyer. Ordinarily an oral communication by a lawyer with a judge or hearing officer should be made only upon adequate notice to opposing coun-sel, or, if there is none, to the opposing party. A lawyer should not condone or lend himself to pri-vate importunities by another with a judge or hearing officer on behalf of himself or his client.
EC 7-36 Judicial hearings ought to be conducted through dignified and orderly procedures designed to protect the rights of all parties. Although a lawyer has the duty to represent his client zealous-ly, he should not engage in any conduct that of-fends the dignity and decorum of proceedings 60 While maintaining his independence, a lawyer should be respectful, courteous, and aboye-board in his relations with a judge or hearing officer be-fore whom he appears.61 He should avoid undue solicitude for the comfort or conveniente of judge or jury and should avoid any other conduct cal-culated to gain special consideration.
EC 7-37 In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a law-yer in his conduct, attitude, and demeanor towards opposing lawyers.62 A lawyer should not make unfair or derogatory personal reference to op-posing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administra-tion of justice and have no proper place in our legal system.
EC 7-38 A lawyer should be courteous to op-posing counsel and should accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of his client.63 He should follow local customs of courtesy or practice, unless he gives timely no-tice to opposing counsel of his intention noc to do so.64 A lawyer should be punctual in fulfilling all professional commitments.65
55 See ABA Canons 3 and 32. 60 Cf. ABA Canon 18.
si See ABA Canons 1 and 3.
62 See ABA Canon 17.
63 See ABA Canon 24.
64 See ABA Canon 25.
65 See ABA Canon 21.
EC 7-39 In the final analysis, proper functioning of the adversary system depends upon coopera-tion between lawyers and tribunals in utilizing pro-cedures which will preserve the impartiality of tribunals and make their decisional processes prompt and just, without impinging upon the ob-ligation of lawyers to represent their clients zeal• ously within the framework of the law.
DISCIPLINARY RULES
DR 7-101 Representing a Client Zealously.
(A) A lawyer shall not intentionally: 66
(1) Fail to seek the lawful objectives of his client through reasonably available mean 67 permitted by law and the Dis-ciplinary Bales, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by ac-ceding to reasonably requests of opposing counsel which do not prejudice the rights of his client, by being punctual in ful-filling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration al" per-sons involved in the legal procesa.
(2) Fall to carry out a contract of employ-ment entered into with a client for pro-fessional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
(3) Prejudice or da.mage his client during the course of the professional relationship 68 except as required under DR 7-102(B).
(B) In his representation of a client, a lawyer may:
(1) Where permissIble, exercise his profes-sional judgment to waive or fail to as-sert a right or position of his client.
(2) Refuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for an ar-gument that the conduct is legal.
DR 7-102 Representing a Client Within the Bounds of the Law.
(A) In his representation of a client, a lawyer shall not:
(1) File a sult, assert a position, conduct a defense, delay a trial, or take other ac-tion on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or ma-liclously in jure another.69
(2) Knowingly advance a claim or defense that Is unwarranted under existing law,
66 See ABA Canon 15.
67 See ABA Canons 5 and 15; cf. ABA Canons 4 and 32.
68 Cf. ABA Canon 24.
69 See ABA Canon 30.
except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modifi-cation, or reversa’ of existing law.
(3) Conceal or knowingly fall to disclose that which he is required by law to reveal.
(4) Knowingly use perjured testimony or false evidence.70
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidente when he knows or it is ob-vious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
(8) Knowingly engage in other ‘Ilegal con-duct or conduct contrary to a Disciplin-ary Rule.
(B) A lawyer who receives information clearly establishing that:
(1) His client has, in the course of the rep-resentation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribuna1,71 except when the in-formation is protected as a privileged com. munication.
(2) A person other than his client has per-petrated a fraud upon a tribunal shall promptly reveal the fraud to the tribu-nal.72
DR 7-103 Performing the Duty of Public Pros-ecutor or Other Government Law-yer.73
(A) A public prosecutor or other government law-yer shall not instante or cause to be insti-tuted criminal charges when he knows or it is obvious that the charges are not supported by probable cause.
(B) A public prosecutor or other government law-yer in criminal litigation shall make timely diselosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecu-ter or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the ()fíense, or reduce the pun-ishment.
70 Cf. ABA Canons 22 and 29.
71 See ABA Canon 41; cf. Hinds v. State Bar, 19 Ca1.2d 87, 92-93, 119 P.2d 134, 137 (1941) ; but see ABA Opinion 287 (1953) and Texas Canon 38. Also see Code of Pro-fessional Responsibllity, DR 4-101(C) (2).
72 See Precision Inst. Mfg. Co. v. Automotive M. M. Co., 324 U.S. 806, 89 L.Ed. 1381, 65 S.Ct. 993 (1945).
73 Cf. ABA Canon 5.
DR 7-104 Communicating With One of Adverse Interest.14
(A) During the course of his representation of a elient a lawyer shall not:
(1) Communicate or cause another to com-municate on the subject of the representa-tion with a party he knows to be rep-resented by a lawyer in that matter un-less he has the prior consent óf the law-yer representing such other party 75 or is authorized by law to do so.
(2) Give advice to a person who is not rep-resented by a lawyer, other than the ad-vice to secure counse1,76 if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.77
DR 7-105 Threatening Criminal Prosecution.
(A) A lawyer shall not present, participate in pre-senting, or theaten to present criminal charg-es solely to obtain an advantage in a civil matter.
DR 7-106 Trial Conduct.
(A) A lawyer shall not disregard or advice his client to disregard a standing rule of a tribu-nal or a ruling of a tribunal made in the eourse of a proceeding, but he may take ap-propriate steps in good faith to test the valld-ity of such rule or ruling.
(B) In presenting a matter to a tribunal, a law-yer shall disclose: 78
(1) Legal authority in the controlling juris-diction known to him to be directly ad-verse to the position of his client and which is not disclosed by opposing coun-se1.79
74 "Rale 12. . . A member of the State Bar shall
not communicate with a party represented by counsel up-on a subject of controversy, in the absence and without the consent of such counsel. This rule shall not apply to communication with a public officer, board, committee or body." Cal.Business and Professions Code § 6076 (West 1962).
76 See ABA Canon 9; cf. ABA Opinions 124 (1934), 108 (1934), 95 (1933), and 75 (1932); also see In re Schwabe, 242 Or. 169, 174-75, 408 P.2d 922, 924 (1965).
"It is clear from the earlier opinions of this committee that Canon 9 Is to be construed literally and does not al-low a communication with an opposing party, without the consent of his counsel, though the purpose merely be to Investigate the facts. Opinions 117, 95, 66," ABA Opinion 187 (1938).
76 Cf, ABA Opinion 102 (1933).
77 Cf. ABA Canon 9 and ARA Opinion 58 (1931).
78 Cf. Note, 38 Texas L.Rev. 107, 108-09 (1959).
79 "In the brief summary in the 1947 edition of the Com-mittee’s decisions (p. 17), Opinion 146 was thus sum-marized : Opinion 146—A lawyer should disclose to the court a decision directly adverse to his client’s case that is unknown to his adversary.
(2) Unless privileged or irrelevant, the iden-tities of the clients he represents and of the persons who employed him 80
(C) In appearing in his professional capacity be-fore a tribunal, a lawyer shall not:
(1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evldence.8′
(2) Ask any question that he has no reason-able basis to believe is relevant to the case and that is intended to degrade a witness or other person.82
"We would not confine the Opinion to ‘controlling au-thorities’—i.e., those decisive of the pending case—but, in accordance with the tests hereafter suggested, would apply it to a decision directly adverse to any proposition of law on which the lawyer expressly relies, which would rea-sonably be considered important by the judge sitting on the case.
. The test in every case should be: Is the deci-sIon which opposing counsel has overlooked one which the court should clearly consider in deciding the case? Would a reasonable judge properly feel that a lawyer who ad-vanced, as the law, a proposition adverse to the undis-closed decision, was lacking in candor and fairness to him? Might the judge consider himself misled by an implied representation that the lawyer knew of no adverse au-thority?" ARA Opinion 280 (1949).
so "The authorities are substantially uniform against any privilege as applied to the fact of retainer or identity of the client. The privilege is limited to confidential com-munications, and a retainer is not a confidential communi-catIon, although it cannot come into existence without some communication between the attorney and the—at that stage prospective—client." United States v. Pape, 144 F.2d 778, 782 (2d Cir. 1944), cert. denied, 323 U.S. 752, 89 L.Ed.2d 602, 65 S.Ct. 86 (1944).
"To be sure, there may be circumstances under which the identification of a client may amount to the prejudicial disclosure of a confidential communication, as where the substance of a disclosure has already heen revealed but not its source." Colton v. United States, 306 F.2d 633, 637 (2d Cir. 1962).
si See ABA Canon 22; cf. ABA Canon 17.
"The rule allowing counsel when addressing the jury the widest latitude in discussing the evidence and presenting the client’s theories falls far short of authorizing the state-ment by counsel of matter not in evidence, or Indulging in argument founded on no proof, or demanding verdicts for purposes other than the just settlement of the matters at issue between the litigante, or appealing to prejudice or passion. The rule confining counsel to legitimate argu-ment is not based on etlquette, but on justice. Its viola-tion is not merely an overstepping of the bounds of pro-priety, but a violation of a party’s rights. The jurors must determine the issues upon the evidence. Counsel’s address should help them do this, not tend to lead them astray." Cherry Creek Nat. Bank v. Fidelity & Cas. Co., 207 App.Div. 787, 790-91, 202 N.Y.S. 611, 614 (1924).
82 Cf. ABA Canon 18.
"§ 6068. . . . It is the duty of an attorney :
"(f) To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged." Cal.Business and Pro-fessions Code § 6068 (West 1962).
(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.
(4) Assert his personal opinion as to the just-ness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or Innocence of an accused; 83 but he may argue, on his analysis of the evidence, for any posi-tion or conclusion with respect to the matters stated herein.
(5) Fall to comply with known local cus-toms of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of his in• tent not to comply.84
(6) Engage in undignified or discourteous éonduct which is degrading to a tribunal.
(7) Intentlonally or habitually violate any es-tablished rule of procedure or of evi-dence.
DB 7-107 Trial Publicity.85
(A) A lawyer participating in or associated with the investigation of a criminal matter shall
83 "The record in the case at bar was silent concerning the qualities and character of the deceased. It is especially improper, In addressing the jury in a murder case, for the prosecuting attorney to make reference to his knowl-edge of the good qualities of the deceased where there is no evidence in the record bearing upon his character.
. . A prosecutor should never inject into his argu- ment evidence not introduced at the trial." People v. Dukes, 12 111.2d 334, 341, 146 N.E.2d 14, 17-18 (1957).
84 "A lawyer should not ignore known customs or prac-tice of the Bar or of a particular Court, even when the law permita, without giving timely notice to the opposing counsel." ABA Canon 25.
85 The provisions of Sections (A), (3), (C), and (D) of this DIsciplinary Rule incorporate the fair trial-free presa standards which apply to lawyers as adopted by the ABA House of Delegates, Feb. 19, 1968, upon the recommenda-tion of the Fair Trial and Free Press Advisory Commlttee of the ABA Special Commlttee on Minimum Standards for the Administration of Criminal Justice.
Cf. ABA Canon 20; see generally ABA Advisory Com-mlttee on Fair Trial and Free Press, Standards Relating to Fair Trial and Free Press (1966).
"From the cases coming here we note that unfair and prejudicial news comment on pending trials has become in-creasingly prevalent. Due process requires that the ac-cused receive a trial by an impartial jury free from out-side influences. Given the pervaslveness of modern com-munications and the difficulty of effacing prejudicial pub-licity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that prescribes the press from reporting events that transpire in the court-room. But where there is a reasonable likelihood that Prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer It to another county not so permeated with pub-llclty. . . . The courts must take such steps by rule and regulation that wlll protect their processes from preju-dicial outslde interferences. Neither prosecutors, counsel
not make or participate in making an extra-judicial statement that a reasonable person would expect to be disseminated by means of public communication and that does more than state without elaboration:
(1) Information contained in a public record.
(2) That the investigation is in progress.
(3) The general scope of the investigation in-cluding a description of the offense and, if permitted by law, the Identity of the victim.
(4) A request for assistance in apprehending a suspect or assistance In other matters and the information necessary thereto.
(5) A warning to the public of any dangers.
(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not, from the time of the filing of a com-plaint, information, or indictment, the issu-anee of an arrest warrant, or arrest until the commencement of the trial or dispositIon without trial, make or participate in making an extrajudicial statement that a reasonable person would expect to be disse_minated by means of public communication Eihd that re-lates to:
(1) The character, reputation, or prior crim-inal record (including arrests, indict. ments, or other charges of crime) of the accused.
(2) The possibility of a plea of guilty to the offense charged or to a lesser offense.
(3) The existence or contents of any confes-sion, admission, or statement given by the accused or his refusal or failure to make a statement.
(4) The performance or results of any ex-aminations or tests or the refusal or fail-ure of the accused to submit to examina-tions or tests.
(5) The Identity, testimony, or credibility of a prospective witness.
(6) Any opinion as to the guilt or Innocence of the accused, the evidence, or the mei.- Its of the case.
(C) DR 7-107(B) does not preclude a lawyer dur-ing such period from announcing:
(1) The name, age, residente, occupation, and family status of the accused.
(2) If the accused has not been apprehended, any information necessary to aid in his apprehension or to warn the public of any dangers he may present.
for defense, the accused, witnesses, court staff nor enforce-ment officers coming under the jurIsdiction of the court should be permitted to frustrate its function. Collabora-tion between counsel and the press as to information affect-Ing the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of dis-ciplinary measures." Sheppard v. Maxwell, 384 U.S. 333, 362-63, 16 L.Ed.2d 600, 620, 86 S.Ct. 1507, 1522 (1966).
(3) A request for a,ssistance in obtaining evi-dente.
(4) The Identity of the victim of the crime.
(5) The fact, time, and place of arrest, re-sistance, pursult, and use of weapons.
(6) The Identity of investigating and arrest-ing officers or agencies and the length of the investigation.
(7) At the time of seizure, a description of the physical evidente seized, other than a confession, admission, or statement.
(8) The nature, substance, or text of the charge.
(9) Quotations from or referentes to public records of the court in the case.
(10) The scheduling or result of any step in the judicial proceedings.
(11) That the accused denles the charges made against him.
(D) During the selection of a jury or the trial of a criminal matter, a lawyer or law firm asso-clated with the prosecution or defense of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be dissemi-nated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial, except that he may quote from or refer without comment to public records of the court in the case.
(E) After the completion of a trial or disposition without trial of a criminal matter and prior to the imposition of sentence, a lawyer or law firm associated with the prosecution or de-tense shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by public communication and that is reasonably likely to al fect the imposition of sentence.
(F) The foregoing provisions of DR 7-107 also ap-ply to professional disciplinary proceedíngs and juvenile disciplinary proceedings when pertinent and consistent with other law appli-cable to such proceedings.
(G) A lawyer or law firm associated with a civil action shall not during its investigation or liti-gation make or participate in making an ex-trajudicial statement, other than a quotation from or reference to public records, that a reasonable person would expect to be dissemi-nated by means of public communication and that relates to:
(1) Evidence regarding the occurrence or transaction involved.
(2) The character, credibility, or criminal record of a party, witness, or prospec-tive witness.
(3) The performance or restas of any ex-aminations or tests or the refusal or
failure of a party to submit to such.
(4) Bis opinion as to the merits of the claims or defenses of a party, except as required by law or administrative rule.
(5) Any other matter reasonably likely to interfere with a fair trial óf the action.
During the pendency of an administrative proceeding, a lawyer or law firm associated therewith shall not make or participate in making a statement, other than a quotation from or reference to public records, that a reasonable person would expect to be dissemi-nated by means of public communication if it is made outside the official course of the proceeding and relates to:
(1) Evidence regarding the occurrence or transaction involved.
(2) The character, credibility, or criminal record of a party, witness, or prospec-tive witness.
(3) Physical evidente or the performance or results of any examinations or tests or the refusal or failure of a party to submit to such.
(4) His opinion as to the merits of the claims, defenses, or positions of an
in-
terested person.
(5) Any other matter reasonably likely to interfere with a fair hearing.
The foregoing provisions of DR 7-107 do not preclude a lawyer from replying to charges of misconduct publicly made against him or from participating in the proceedings of legis-lative, administrative, or other investigative bodies.
A lawyer shall exercise reasonable cure to pre-vent his employees and associates from mak-ing an extrajudicial statement that he would be prohibited from making under DR 7-107.
7-108 Communication with or Investigation of Jurors.
Bef ore the trial of a case a lawyer connected therewith shall not communicate with or cause another to communicate with anyone he knows to be a member of the venire from which the jury will be selected for the trial of the case.
During the trial of a case:
(1) A lawyer connected therewith shall not communicate with or cause another to communicate with any member of the jury.86
(2) A lawyer who is not conneeted there-with shall not communicate with or cause another to communicate with a juror concerning the case.
DR 7-108(A) and (B) do not prohibit a law-yer from communicating with veniremen or jurors in the course of official proceedings.
(D) After discharge of the jury from further con-sideration of a case with which the lawyer was connected, the lawyer shall not ask ques-tions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his ac-tions in future jury service.87
(E) A lawyer shall not conduct or cause, by finan-cial support or otherwise, another to conduct a vexatious or harassing investigation of el-ther a venireman or a juror.
(F) All restrictions imposed by DR 7-108 upon a lawyer also apply to communications with or investigations of members of a family of a venireman or a juror.
(G) A lawyer shall reveal promptly to the court irnproper conduct by a venireman or a juror, or by another toward a venireman or a juror or a member of his family, of which the law-yer has knowledge.
DR 7-109 Contact with Witnesses.
(A) A lawyer shall not suppress any evidente that he or his client has a legal obligation to re-veal or produce 58
(B) A lawyer shall not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him un-available as a witness therein.88
(C) A lawyer shall not pay, offer to pay, or ac-quiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case.99 But a lawyer may advance, guarantee, or ac-quiesce in the payment of:
(1) Expenses reasonably incurred by a wit-ness in attending or testifying.
(2) Reasonable compensation to a witness for his loss of time in attending or tes-tifying.
(3) A reasonable fee for the professional services of an expert witness.
DR 7-110 Contact with Officials.81
(A) A lawyer shall not give or lend any thing of value to a judge, official, or employee of a
st "[I]t would be unethical for a lawyer te harass, en-tice, induce or exert influence on a juror to obtain his testimony." ABA Opinion 319 (1968).
88 See ABA Canon 5.
99 Cf. ABA Canon 5.
"Pule 15. . . . A member of the State Bar shall not advise a person, whose testimony cou]d establish or tend to establish a material fact, to avoid service of process, or secrete himself, or otherwise to make his testimony un-available." Cal.Business and Professions Code § 6076 (West 1962).
9° See In re O’Keefe, 49 Mont. 369, 142 P. 638 (1914). 91 Cf. ABA Canon 3.
tribunal, except as permitted by Section C(4) of Canon 5 of the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial of-fice in conformity with Section B(2) under Canon 7 of the Code of Judicial Conduct.
(B) In an adversary proceeding, a lawyer shall not communicate, or cause another to com-municate, as to the merits of the cause with a judge or an official before whom the pro-ceeding is pending, except:
(1) In the course of official proceedings in the cause.
(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not rep-resented by a lawyer.
(3) Orally upon adequate notice to oppos-ing counsel or to the adverse party if he is not represented by a lawyer.
(4) As otherwise authorized by law,92 or by Section A(4) under Canon 3 of the Code of Judicial Conduct.
CANON 8
A Lawyer Should Assist in Improving the Legal System
ETHICAL CONSIDERATIONS
EC 8-1 Changes in human affairs and imperfec-tions in human institutions make necessary con-stant efforts to maintain and iniprove our legal system.’ This system should function in a man-
92 "Role 16. . . A member of the State Bar shall
not, in the absence of opposing counsel, communicate with or argue to a judge or judicial officer except in open court upon the merits of a contested matter pending before such judge or judicial officer; nor shall he, without furnishing opposing counsel with a copy thereof, address a written communication to a judge or judicial officer concerning the merits of a contested matter pending before such judge or judicial officer. This rule shall not apply to ex parte matters." Cal.Business and Professions Code § 6076 (West 1962).
1[Another] task of the great lawyer is to do his part individually and as a member of the organized bar to improve his profession, the courts, and the law. As President Theodore Roosevelt aptly put it, ‘Every man owes some of his time to the upbuilding of the profession to which he belongs.’ Indeed, this obligation is one of the great things which distinguishes a profession from a business. The soundness and the necessity of President Roosevelt’s admonition insofar as it relates to the legal profession cannot be doubted. The advances in natural science and technology are so startling and the velocity of change in business and in social lile is so great that the law along with the other social sciences, and even human llfe itself, is in grave danger of being extinguished by new gods of its own invention if it does not awake from its lethargy. Vanderbilt, The Five Functions of the Lawyer : Service to Clients and the Public, 40 A.B.A.J. 31, 31-32 1954).
ner that commands public respect and fosters the use of legal remedies to achieve redress of griev-ances. By reason of education and experience, lawyers are especially qualified to recognize de-ficiencies in the legal system and to initiate cor-rective measures therein. Thus they should par-ticipate in proposing and supporting legislation and programs to improve the system,2 without regard to the general interests or desires of clients or former clients.3
EC 8-2 Rules of law are deficient if they are not just, understandable, and responsive to the needs of society. If a lawyer believes that the existence or absence of a rule of law, substantive or proce-dural, causes or contributes to an unjust result, he should endeavor by lawful means to obtain ap-propriate changes in the law. He should encour-age the simplification of laws and the repeal or amendment of laws that are outmoded.4 Like-wise, legal procedures should be improved when-ever experience indicates a change is needed.
EC 8-3 The fair administration of justice re-quires the availability of competent lawyers. Members of the public should be educated to rec-ognize the existence of legal problems and the re-sultant need for legal services, and should be pro-vided methods for intelligent selection of counsel. Those persons unable to pay for legal services should be provided needed services. Clients and lawyers should not be penalized by undue geo-graphical restraints upon representation in legal matters, and the bar should address itself to im-provements in licensing, reciprocity, and admission procedures consistent with the needs of modem commerce.
EC 8-4 Whenever a lawyer seeks legislative or administrative changes, he should identify the ca-
2 See ABA Canon 29; Cf. Cheatham, The Lawyer’s Role and Surroundings, 25 Rocky Mt.L.Rev. 405, 406-07 (1953).
"The lawyer tempted by repose should recall the heavy costs paid by his profession when needed legal reform has to be accomplished through the initiative of public-spirited laymen. Where change must be thrust from without upon an unwilling Bar, the public’s least flattering picture of the lawyer seems confirmad. The lawyer concerned for the standing of his profession will, therefore, interest
self actively in the improvement of the law. In doing so he will not only help to maintain confidence in the Bar, but will have the satisfaction of meeting a responsibility inhering in the nature of his calling," Professional Re-sponsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958).
aSee Stayton, Cum Honore Officium, 19 Tex.B.J. 765, 766 (1956); Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1162 (1958) ; and Paul, The Lawyer as a Tax Adviser, 25 Rocky Mt.L.Rev. 412. 433-34 (1953).
4 "There are few great figures in the history of the Bar who have not concerned themselves with the reform and improvement of the law. The special obligation of the profession with respect to legal reform rests on considera-tions too obvlous to require enumeration. Certainly it Is the lavvyer who has both the best chance to know when the law is working badly and the special competence to put it in order." Professtional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958).
pacity in which he appears, whether on behalf of himself, a client, or the public.5 A lawyer may advocate such changes on behalf of a client even though he does not agree with them. But when a lawyer purports to act on behalf of the public, he should espouse only those changes which he conscientiously believes to be in the public inter-est.
EC 8-5 Fraudulent, deceptive, or otherwise ile-gal conduct by a participant in a proceeding be-fore a tribunal or legislative body is inconsistent with fair administration of justice, and it should never be participated in or condoned by lawyers. Unless constrained by his obligation to preserve the confidentes and secrets of his client, a lawyer should reveal to appropriate authorities any knowledge he may have of such improper conduct.
EC 8-6 Judges and administrative officials hav-ing adjudicatory powers ought to be persons of integrity, competence, and suitable temperament. Generally, lawyers are qualified, by personal ob-servation or investigation, to evaluate the qualifi-cations of persons seeking or being considered for such public offices, and for this reason they have a special responsibility to aid in the selection of only those who are qualified .6 It is the duty of lawyers to endeavor to prevent political consider-ations from outweighing judicial fitness in the selection of judges. Lawyers should protest ear-nestly against the appointment or election of those who are unsuited for the bench and should strive to have elected 7 or appointed thereto only those who are willing to forego pursuits, whether of a business, political, or other nature, that may inter-fere with the free and fair consideration of ques-tions presented for adiudication. Adjudicatory of-
5 "Rule 14. . . . A member of the State Bar shall not communicate with, or appear before, a public officer, board, committee or body, in his professional capacity, without first disclosing that he is an attorney representing interests that may be affected by action of such officer, board, committee or body." Cal.Business and Professions Code § 6076 (West 1962).
6 See ABA Canon 2.
"Lawyers are better able than laymen to appraise ac-curately the qualifications of candidates for judicial of-fice. It is proper that they should make that appralsal known to the voters in a proper and dignified manner. A lawyer may with propriety endorse a candidate for judicial office and seek like endorsement from other lawyers. But the lawyer who endorses a judicial candidate or seeks that endorsement from other lawyers should be actuated by a sincere belief in the superior qualifications of the candidate for judicial service and not by personal or sel-fish motives; and a lawyer should not use or attempt to use the power or prestige of the judicial off ice to secure such endorsement. On the other hand, the lawyer whose endorsement is sought, if he believes the candidate lacks the essential qualifications for the office or believes the opposing candidate is better qualified, should have the courage and moral stamina to refuse the request for en-dorsement." ABA Opinion 189 (1938).
7 "[W]e are of the opinion that, whenever a candidate for judicial office merits the endorsement and support of lawyers, the lawyers may make financial contributions toward the campaign if its cost, when reasonably conduct-ed, exceeds that which the candidate would be expected to bear personally." ABA Opinion 226 (1941).
ficials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism.8 While a lawyer as a citizen has a right to criticize such officials public-ly,9 he should be certain of the merit of his com-plaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate state-ments tend to lessen public confidence in our legal system.» Criticisms motivated by reasons other than a desire to improve the legal system are not justified.
EC 8-7 Since lawyers are a vital part of the legal system, they should be persons of integrity, of professional skill, and of dedication to the im-provement of the system. Thus a lawyer should aid in establishing, as well as enforcing, stand-ards of conduct adequate to protect the public by insuring that those who practice law are qualified to do so.
EC 8-8 Lawyers often serve as legislators or as holders of other public offices. This is highly de-sirable, as lawyers are uniquely qualified to make significant contributions to the improvement of the legal system. A lawyer who is a public offi-cer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties.]-1
8 See ABA Canon 1.
o "Citizens have a right under our constitutional system to criticize governmental officials and agencies. Courts are not, and should not be, immune to such criticism." Konigsberg v. State ,Bar of California, 353 U.S. 252, 269 (1957).
lo "[E]very lawyer, worthy of respect, realizes that pub-lic confidence in our courts is the cornerstone of our gov-ernmental structure, and will refrain from unjustified at-tack on the character of the judges, while recognizing the duty to denounce and expose a corrupt or dishonest judge." Kentucky State Bar Ass’n v. Lewis, 282 S.W.2d 321, 326 (Ky. 1955).
"We should be the last te deny that Mr. Meeker has the right to uphold the honor of the profession and to expose without fear or favor corrupt or dishonest conduct in the profession, whether the conduct be that of a judge or not.
. . However, this Canon [29] does not permit one to make charges which are false and untrue and unfounded in fact. When one’s fancy leads him to make false charges, attacking the character and integrity of others, he does so at his peril. He should not do so without adequate proof of his charges and he is certainly not authorized to make careless, untruthful and vile charges against his professional brethren." In re Meeker, 76 N.M. 354, 364-65, 414 P.2d 862, 869 (1966), appeal dismissed, 385 U.S. 449, 17 L.Ed.2d 510, 87 S.Ct. 613 (1967).
11 "Opinions 16, 30, 34, 77, 118 and 134 relate to Canon 6, and pass on questions concerning the propriety of the con-duct of an attorney who is a publie officer, in represent-ing private interests adverse to those of the public body which he represents. The principie applied in those opin-ions is that an attorney holding public office should avoid all conduct which might leed the laymen to conclude that the attorney is utilizing his public position to further his professional success or personal interests." ABA Opin-ion 192 (1939).
EC 8-9 The advancement of our legal system is of vital importante in maintaining the rule of law and in facilitating orderly changes; therefore, law-yers should encourage, and should aid in making, needed changes and improvements.
DISCIPLINARY RULES
DR 8-101 Action as a Public Official.
(A) A lawyer who holds public office shall not:
(1) Use his public position to obtain, or at-tempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest.
(2) Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.
(3) Accept any thing of value from any person when the lawyer knows or it is obvious that the offer is for the pur-pose of influencing his action as a pub-lic official.
DR 8-102 Statements Concerning Judges and Other Adjudicatory Officers.12
(A) A lawyer shall not knowingly make false statements of fact concerning the qualifica-tions of a candidate for election or appoint-ment to a judicial office.
(B) A lawyer shall not knowingly make false ac-cusatIons against a judge or other adjudica-tory officer.
DR 8-103 Lawyer Candidate for Judicial Office.
(A) A lawyer who is a candidate for judicial of-fice shall comply with the applicable provi-sions of Canon 7 of the Code of Judicial Con-duct.
tribunal, created by the legislative group of which he is a member. We are of the opinion that he may practice before fact-finding officers, hearing bodies and commis-sioners, since under our views he may appear as counsel in the courts where his municipality is a party. Decisions made at such hearings are usually subject to administra-tive review by the courts upon the record there made. It would be inconsistent to say that a lawyer-member of a legislative body could not participate in a hearing at which the record is made, but could appear thereafter when the cause is heard by the courts on administrative review. This is subject to an important exception. He should not ap-pear as counsel where the matter is subject to review by the legislative body of which he is a member. . . . We are of the opinion that where a lawyer does so appear there would be conflict of interests between his duty as an advocate for his client on the one hand and the obligation to his governmental unit on the other." In re Becker, 16 I11.2d 488, 494-95, 158 N.E.2d 753, 756-57 (1959).
Cf. ABA Opinions 186 (1938), 136 (1935), 118 (1934), and 77 (1932
12 Cf. ABA Canons 1 and 2.
CANON 9
A Lawyer Should Avoid Even the Appearance of Professional Impropriety
ETHICAL CONSIDERATIONS
EC 9-1 Continuation of the American concept that we are to be governed by rules of law re-quires that the people have faith that justice can be obtained through our legal system.’ A lawyer should promote public confidence in our system and in the legal profession.2
EC 9-2 Public confidence in law and lawyers may be eroded by irresponsible or improper con-duct of a lawyer. On occasion, ethical conduct of a lawyer may appear to laymen to be unethical. In order to avoid misunderstandings and hence to maintain confidence, a lawyer should fully and promptly inform his client of material develop-ments in the matters being handled for the client. While a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the pub-lic should never be subordinate merely because the full discharge of his obligation may be misun-derstood or may tend to subject him or the legal profession to criticism. When explicit ethical guidance does not exist, a lawyer should deter-mine his conduct by acting in a manner that pro-‘ motes public confidence in the integrity and effi-clency of the legal system and the legal profes-sion.3
EC 9-3 After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.4
EC 9-4 Because the very essence of the legal sys-tem is to provide procedures by which matters can be presented in an impartial manner so that they may be decided solely upon the merits, any state-ment or suggestion by a lawyer that he can or would attempt to circumvent those procedures is
1 "IntegrIty is the very breath of justice. Confidente in our law, our courts, and in the administration of jus-tice Is our supreme ínterest. No practice must be permit-ted to prevail which invites towards the administration of justice a doubt or distrust of its integrity." Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866, 868 (1928).
2 -A lawyer should never be reluctant or too proud to answer unjustified criticism of his profession, of himself, or of his brother lawyer. He should guard the reputation of his profession and of his brothers as zealously as he guards his own." Rochelle and Payne, The Struggie for Public Understanding, 25 Texas B.J. 109, 162 (1962).
3 See ABA Canon 29.
4 See ABA Canon 36.
detrimental to the legal system and tends to un-dermine public confidence in it.
EC 9-5 Separation of the funds of a client from those of his lawyer not only serves to protect the client but also avoids even the appearance of im-propriety, and therefore commingling of such funds should be avoided.
EC 9-6 Every lawyer owes a solemn duty to up-hold the integrity and honor of his profession; to encourage respect of the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to – public service; to cooperate with his brother lawyers in supporting the organized bar through the devot-ing of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confi-dence, respect, and trust of his clients and of the public; and to strive to avoid not only profession-al impropriety but also the appearance of impro-priety
DISCIPLINARY RULES
DR 9-101 Avoiding Even the Appearance of Im-propriety.6
(A) A lawyer shall not accept private employ-ment in a matter upon the merits of which he has acted in a judicial capacity
5 "As said in Opinion 49 of the Committee on Professional Ethics and Grievances of the American Bar Association, page 134: ‘An attorney should not only avoid impropriety but should avoid the appearance of impropriety.’ " State ex rel, Nebraska State Bar Ass’n v. Richards, 165 Neb. 80, 93, 84 N.W.2d 136, 145 (1957).
"It would also be preferable that such contribution [to the campaign of a candidate for judicial office] be made to a campaign committee rather than to the candidate personally. In so doing, possible appearances of impro-priety would be reduced toa minimum." ABA Opinion 226 (1941).
"The lawyer assumes high duties, and has imposed upon him grave responsibilities. He may be the means of much good or much mischief. Interests of vast magnitude are entrusted to him ; confidence is reposed in him; life, lib-erty, character and property should be protected by him. He should guard, with jealous watchfulness, his own repu-tation, as well as that of his profession." People ex rel. Cutier v. Ford, 54 III. 520, 522 (1870), and also quoted In State Board of Law Examiners v. Sheldon, 43 Wyo. 522, 526, 7 P.2d 226, 227 (1932).
See ABA Opinion 150 (1936).
e Cf. Code of Professional Responsibility, EC 5-6.
7 See ABA Canon 36.
"It is the duty of the judge to rule on questions of law and evidente in misdemeanor cases ami examínations in felony cases. That duty calls for impartial and unin-fluenced judgment, regardless of the effect on those im-medIately involved or others who may, directly or indirect-ly, be affected. Dlscharge of that duty might be greatly Interfered with if the judge, in another capacity, were permitted to hold himself out to employment by those who are to be, or who may be, brought to trial in felony
(B) A lawyer shall not accept private employment in a matter in which he had substantial re-sponsibility while he was a public employee.9
(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrele-vant grounds any tribunal, legislative body,9 or public official.
DR 9-102 Preserving Identity of Funds and Property of a Client.19
(A) AB funds of clients paid to a lawyer or law firm, other than advances for costs and ex-
cases, even though he did not conduct the examination. His prívate interests as a lawyer in building up hís clien-tele, his duty as such zealously to espouse the cause of his prívate clients and to defend against charges of crime brought by law-enforcement agencies of which he is a part, might prevent, or even destroy, that unbiased judi-cial judgment which is so essential in the administration of justice.
"In our opinion, acceptance of a judgeship with the duties of conducting misdemeanor trials, and examinalions in felony cases to determine whether those accused should be bound over for trial in a higher court, ethically bars the judge from acting as attorney for the defendants upon such trial, whether they were examine(‘ by him nr by some other judge. Such a practice would not only dimin-Ish public confidence in the administration of justice in both courts, but would produce serious conflict between the private interests of the judge as a lawyer, and of his clients, and his duties asa judge in adjudicating important phases of criminal processes in other cases. The public and private dutics would be incompatible. The prestige of the judicial office would be diverted to private benefit. and the judicial office would be demcaned thereby." ABA Opinion 242 (1942).
"A lawyer, who has previously occupied a judicial posi-tion nr acted in a judicial capacity, should refrain from accepting employment in any matter involving the same facts as were involved in any specific question which he acted upon in a judicial capacity and, for the same rea-sons, should also refrain from accepting any, employment which might reasonably apocar to involve the same facts." ABA Opinion 49 (1931).
See ABA Opinion 110 (1934).
8 See ABA Opinions 135 (1935) and 134 (1935); cf. ABA Canon 36 and ABA Opinions 39 (1931) and 26 (1930). But see ABA Opinion 37 (1931).
8 "[A staternent by a governmental department or agency with regard to a lawyer resigning from its staff that in-eludes a laudation of his legal ability] carries implica-tions, probably not founded in fact, that the lawyer’s acquaintance and previous relations with the perSonnel of the administrative agencies of the government place him in an advantageous position in practicing before such agencies. So to imply would not only represent what prob-ably is untrue, but would be highly reprehensible." ABA Opinion 184 (1938).
iu See ABA Canon 11.
-Rule 9. . . A member of the State Bar shall not commingle the money or other property of a client with his own; and he shall promptly report to the client the receipt by him of all money and other property belonging to such client. Unless the client otherwise directs in writ-ing, he shall promptly deposit his client’s funds in a bank
or trust company . . in a bank account separate from his own account and clearly designated as ‘Clients’ Funds Account’ or ‘Trust Funds Account’ or words of similar import. Unless the client otherwise directs in writ
penses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay bank charges may be deposited there-in.
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be with-drawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be with-drawn until the dispute is finally re-solved.
(B) A lawyer shall:
(1) Promptly notify a client of the receipt of his funds, securities, or other prop-erties.
(2) Identify and label securities and prop-erties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate ac-counts to his client regarding them.
(4) Promptly pay or deliver to the client as requested by a client the funds, se-curities, or other properties in the pos-session of the lawyer which the client is entitled to receive.
DEFINITIONS*
As used in the Disciplinary Rules of the Code of Professional Responsibility:
(1) "Differing interests" include every interest that will adversely affect either the judg-
ing, securities of a client in bearer form shall be kept by the attorney in a safe deposit box at a bank or trust com-
pany, . . which safe deposit box shall be clearly designated as ‘Clients’ Account’ or ‘Trust Account’ or words of similar import, and be separate from the attorney’s own safe deposit box." Cal.Business and Professions Code § 6076 (West 1962).
"[C]ommingling is committed when a client’s money is intermingled with that of his attorney and its separate identity lost so that it may be used for the attorney’s per-sonal expenses or subjected to claims of his creditors. . The rule against commingling was adopted to provide against the probability in some cases, the possi-bility in many cases, and the danger in all cases that such commingling will result in the loes of clients’ money." Black v. State Bar, 57 Ca1.2d 219, 225-26, 368 P.2d 118, 122, 18 Cal.Rptr. 518, 522 (1962).
• "Confidente" and "secret" are defined in DR 4-101(A)
ment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, di-verse, or other interest.
(2) "Law firm" includes a professional legal corporation.
(3) "Person" includes a corporation, an associa-tion, a trust, a partnership, and any other organization or legal entity.
(4) "Professional legal corporation" means a corporation, or an association treated as a corporation, authorized by law to practice law for profit.
(5) "State" includes the Dishict of Columbia, Puerto Rico, and other federal territories and possessions.
(6) "Tribunal" includes all courts and all other adjudicatory bodies.
(7) "A Bar association representativa of the general bar of the geographical area in which the association exists" is a bar asso-elation, the membership of which is open to any lawyer in good standing in the geo-graphical area and which has a membership
at least equal to the lesser of three hun-dred members or twenty percent of the law-yers licensed to practica in the geographical area. A bar association of specialists as re-ferred to in DR 2-105(A) (1) or (4) is "a bar association representative of the gen-eral bar" even though it does not meet the test of the preeeding sentence.
(8) "Qualified legal assistance organization" is an organization described in DR 2-103(D) (1) through (4) or which reeommends, fur-nishes, renders or pays for legal services to its members or beneficiarles under a plan operated, administered or funded by an in-surance company or other organization which plan provides that the members or beneficiarles may seleet their counsel from lawyers representative of the general bar of the geographical area in which the plan is offered.
(9) "Lawyers representative of the general bar of the geographical area in which the plan is offered" are lawyers in good standing numbering not less than the greater of three hundred or twenty percent of those licensed to practice in the geographical area.
AMERICAN BAR ASSOCIATION CODE OF JUDICIAL CONDUCT
CANON 1
A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is in• dispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high stand-ards of conduct so that the integrity and indo-pendence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
CANON 2
A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A. judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a char-acter witness.
Commentary
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
The testimony of a judge as a character witness injects the prestige of his off ice into the proceed-ing in which he testifies and may be misunder-stood to be an official testimonial. This Canon, however, does not afford him a privilege against testifying in response to an official summons.
• The Code of Judicial Conduct was adopted by the House of Delegates of the American Bar Association on August 16, 1972.
CANON 3
A Judge Should Perform the Duties of His Office Impartially and Diligently
The judicial duties of a judge take precedente over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the fol-lowing standards apply:
A. Adjudicative Responsibilities.
(1) A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan inter-ests, public clamor, or fear of criticism.
(2) A judge should maintain order and de-corum in proceedings before him.
(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity, and should require similar conduct of lawyers, and of his staff, court officials, and others subject to his direction and control.
Commentary
The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dis-pose promptly of the business of the court. Courts can be efficient and business-like while be-ing patient and deliberate.
(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard ac-cording to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning
a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law appli-cable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the ad-vice, and affords the parties reasonable op-portunity to respond.
Commentary
The proscription against communications con-cerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted. It does not preclude a judge from consulting with other judges, or with court personnel whose function is to aid the judge in carrying out his adjudicative responsibili-ties.
An appropriate and often desirable procedure for a court to obtain the advice of a disinterested ex-pert on legal issues is to invite him to file a brief amicus curiae.
(5) A judge should dispose promptly of the business of the court.
Commentary
‘Prompt disposition of the court’s business re-quires a judge to devote adequate time to his du-ties, to be punctual in attending court and expedi-tious in determining matters under submission, and to insist that court officials, litigants and their lawyers cooperate with him to that end.
(6) A judge should abstain from public com-ment about a pending or impending pro-ceeding in any court, and should require similar abstention on the part of court per-sonnel subject to his direction and con-trol. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the pro-cedures of the court.
Commentary
"Court personnel" does not include the lawyers in a proceeding before a judge. The conduct of lawyers is governed by DR7-107 of the Code of Professional Responsibility.
(7) A judge should prohibit broadcasting, tele-vising, recording, or taking photographs in the courtroom and arcas immediately ad-jacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:
(a) the use of electronic or photographic means for the presentation of evi-dence, for the perpetuation of a rec-ord, or for other purposes of judicial administration;
(b) the broadcasting, televising, recording, or photographing of investitive, cere-monial, or naturalization proceedings;
(e) the photographic or electronic record-ing and reproduction of appropriate court proceedings under the following conditions:
(1) the means of recording will not distract participants or impalr the dignity of the proceedings;
(11) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;
(iii) the reproduction will not be ex-hibited until alter the proceeding has been concluded and all direct appeals have been exhausted; and
(1v) the reproduction will be exhibited only for instructional purposes in educational institutions.Commentary
Temperate conduct of judicial proceedings is es-sential to the fair administration of justice. The recording and reproduction of a proceeding should not distort or dramatize the proceeding.
B. Administrative Responsibilities.
(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial admin-istration, and facilitate the performance of the administrative responsibilities of other judges and court officials.
(2) A judge should require his staff and court officials subject to his direction and con-trol to observe the standards of fidelity and diligente that apply to him.
(3) A judge should take or initiate appropri-ate disciplinary measures against a iudge or lawyer for unprofessional conduct of which the judge may become aware.
Commentary
Disciplinary measures may include reporting a lawyer’s misconduct to an appropriate disciplinary body.
(4) A judge should not make unnecessary ap-pointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. He should not approve compensation of ap-pointees beyond the fair value of services rendered.
Commentary
Appointees of the judge include officials such as referees, commissioners, special masters, receiv-ers, guardians and personnel such as clerks, sec-retaries, and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation pre-scribed by this subsection.
C. Disqualification.
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instantes where:
(a) he has a personal bias or prejudice concerning a party, or personal knowl-edge of disputed evidentiary facts con-cerning the proceeding;
(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
Commentary
A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection; a judge formerly employed by a governmental agency, however, should disqualify himself in a proceeding if his impartiality might reasonably be questioned because of such associa-tion.
(e) he knows that he, individually or as a fiduciary, or bis spouse or minor child residing in Iris household, has a financial interest in the subject mat-ter in eontroversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trastee of a party;
(1) is acting as a lawyer in the pro-ceeding;
Commentary
The fact that a lawyer in a proceeding is af-filiated with a law firm with which a lawyer-rela-tive of the judge is affiliated does not of itself dis-qualify the judge. Under appropriate circumstanc-es, the fact that "his impartiality might reasonably be questioned" under Canon 3C(1), or that the lawyer-relative is known by the judge to have an interest in the law firm that could be "substantial-ly affected by the outcome of the proceeding" un-der Canon 3C(1) (d) (iii) may require his disquali-fication.
(iii) is known by the judge to have an interest that could be substantial-ly affected by the outcome of the proceeding;
(iv) is to the judge’s knowledge like-ly to be a material witness in the proceeding;
(2) A iudge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial in-terests of his spouse and minor children residing ‘in his household.
(3) For the purposes of this section:
(a) the degree of relationship is calculat-ed according te the civil law system;
Commentary
According to the civil law system, the third de-gree of relationship test would, for example, dis-qualify the judge if his or his spouse’s father, grandfather, uncle, brother, or niece’s husbanci were a party or lawyer in the proceeding, but would not disqualify him if a cousin were a party or lawyer in the proceeding.
(b) "fiduciary" includes such relationships as executor, administrator, trastee, and guardian;
(e) "financial interest" means ownership of a legal or equitable interest, how-ever small, or a relationship as di-rector, advisor, or other active par-ticipant in the affairs of a party, ex• cept that:
(i) ownership in a mutual or com-mon investment fund that holds securities is not a "financial in-terest" in such securities unless the judge participates in the man-agement of the fund;
(ii) an office in mi educational, re-ligious, charitable, fraternal, or civic organization is not a "finan-cial interest" in securities held by the organization;
(iii) the proprietary interest of a poli-cy holder in a mutual insurance company, of a depositor in a mu-tual savings association, or a simi-lar proprietary interest, is a "financial interest" in the organi-zation only if the outcome of the proceeding could substantially af-fect the value of the interest;
(iv) ownership of government securi-ties is a "financial interest" in the issuer only if the outcome of the proceeding could substantial-ly affeet the value of the securi-ties.
D. Remittal of Disqualification.
A judge disqualified by the tercos of Canon 3C(1) (e) or Canon 3C(1) (d) may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the parties and law-yers, independently of the judge’s participa-tion, all agree in writing that the judge’s re-lationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified, ami may participate in the pro-ceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the rec-ord of time proceeding.
Commentary
This procedure is designed to minimize the chance that a party or lawyer will feel coerced into an agreement. When a party is not immediately available, the judge without violating this section may proceed on the written assurance of the law-yer that his party’s consent will be subsequently filed.
CANON 4
A Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice
A Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justicecast doubt on his capacity to decide impartially any issue that may come before him:
A. He may speak, write, lecture, teach, and par-ticipate in other activities concerning the law, the legal system, and the administration of justice.
B. He may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and he may otherwise consult with an executive or legisla-tive body or °Metal, but only on matters con-cerning the administration of justice.
C. He may serve as a member, officer, or director of an organization or governmental agency de-voted to the improvement of the law, the le-gal system, or the administration of justice. He may assist such an organization in raising funds and may participate in their manage-ment and investment, but should not person-ally participate in public fund raising activi-ties. He may make recommendations to public and private fund-granting agencies on proj-ects and programs concerning the law, the legal system, and the administration of jus-tice.
Commentary
As a judicial officer and person specially learned in the law, a judge is in a unique position to con-tribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that his time permits, he is encouraged to do so, either independently or through a bar association, judicial conference, or other organiza-tion dedicated to the improvement of the law.
Extra-judicial activities are governed by Canon 5.
CANON 5
A Judge Should Regulate His Extra-Judicial Activities to Minimize the Risk of Conflict with His Judicial Duties
A. Avocational Activities. A judge may write, lecture, teach, and speak on non-legal subjects, and engage in the arts, sports, and other so-cial and recreational activities, if such avoca-tional activities do not detraet from the dig-nity of his office or interfere with the perform-ance of his judicial duties.
Commentary
Complete separation of a judge from extra-judicial activities is neither possible nor wise; he should not become isolated from the society in which he lives.
his judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, frater-nal, or civic organization not conducted for the economic or political advantage of its mem-bers, subject to the following limitations:
(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.
Commentary
The changing nature of some organizations and of their relationship to the law malees it necessary for a judge regularly to reexamine the activities of each organization with which he is affiliated to determine if it is proper for him to continue his relationship with it. For example, in many juris-dictions charitable hospitals are now more fre-quently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political signifi-cante or imply commitment to causes that may come before the courts for adjudication.
(2) A judge should not solicit funds for any educational, religious, charitable, frater-nal, or civic organization, or use or permit the use of the prestige of his office for that purpose, but he may be listed as an officer, director, or trustee of such an or-ganization. He should not be a speaker or the guest of honor at an organization’s fund raising events, but he may attend such events.
(3) A judge should not give investment ad-vice to such an organization, but he may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.
Commentary
A judge’s participation in an organization de-voted to quasi-judicial activities is governed by Canon 4.
C. Financial Activities.
(1) A judge should refrain from financial and business dealings that tend to reflect ad-versely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or in-volve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.
(2) Subject to the requirements of subsection (1), a judge may hold and manage invest-ments, including real estate, and engage in other remunerative activity, but should not serve as an officer, director, man-ager, advisor, or employee of any busi-ness.
B. Civic and Charitable Activities. A judge may
participate in civic and charitable activities Commentary
that do not reflect adversely upon his impar- The Effective Date of Compliance provision of tiality or interfere with the performance of this Code qualifies this subsection with regard toa judge engaged in a family business at the time this Code becomes effective.
Canon 5 may cause temporary hardship in juris-dictions where judicial salaries are inadequate and judges are presently supplementing their income through commercial activities. The remedy, how-ever, is to secure adequate judicial salaries.
[Canon 5C(2) sets the minimum standard to which a full-time judge should adhere. Jurisdictions that do not provide adequate judicial salaries but are willing to allow full-time judges to supplement their in-comes through commercial activities may adopt the following substitute tmtil such time as adequate salaries are provided:
*(2) Subject to the requlrement of sub-section (1), a judge may hold and man-age investments, including real estate, and engage in other remunerative activity in-cluding the operation of a business.
Jurisdictions adopting the foregoing sub-stitute may also wish to prohibit a judge from engaging in certain types of busi-nesses such as that of banks, public utili-ties, insurance companies, and other busi-nesses affected with a public interest.1
(3) A judge should ~nage his investments and other financial interests to minimizo the nttmber of cases in which he is dis-qualified. As soon as he can do so with-out serious financial detriment, he should divest himself of investments and other financial interests that might require fre-quent disqualification.
(4) Neither a judge nor a member of his fam-ily residing in his household should accept a gift, bequest, favor, or loan from any-one except as follows:
(a) a judge may accept a gift incident to a public testimonial to him; books supplied by publishers on a compli-mentary basis for official use; or an invitation to the judge and bis spouse to attend a bar-related function or ac-tivity devoted to time improvement of the law, the legal system, or the ad-ministration of justice;
(b) a judge or a member of his family residing in his household may accept ordinary social hospitality; a gift, be-quest, favor, or loan from a relative; a wedding or engagement gift; a loan from a lending institution in its regu-lar course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;
(e) a judge or a member of his family re-siding in his household may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before
him, and, if its value exceeds $100, the judge reports it in the same manner as he reports compensation in Canon 6C.
Commentary
This subsection does not apply to contributions to a judge’s campaign for judicial office, a matter governed by Canon 7.
(5) For the purposes of this section "member of his family residing in his household" means any relative of a judge by blood or marriage, or a person treated by a judge as a member of his family, who resides in his household.
(6) A judge is not required by this Code to disclose bis income, debts, or investments, except as provided in this Canon and Can-ons 3 and 6.
Commentary
Canon 3 requires a judge to disqualify himself in any proceeding in which he has a financial in-terest, however small; Canon 5 requires a judge to refrain from engaging in business and from financial activities that might interfere with the impartial performance of his judicial duties; Can-on 6 requires him to report all compensation he receives for activities outside his judicial office. A judge has the rights of an ordinary citizen, in-cluding the right to privacy of his financial af-fairs, except to the extent that limitations thereon are required to safeguard the proper performance of his duties. Owning and reeeiving income from investments do not as such affect the performance of a judge’s duties.
(7) Information acquired by a judge in his judicial capacity should not be used or disclosed by him in financial dealings or for any other purpose not related to his judicial duties.
D. Fiduclary Activities. A judge should not serve as the executor, administrator, trustee, guard. ian, or other fiduciary, except for the estate, trust, or person of a member of his family, and then only if such service will not interfere with the proper performance of his judicial duties. "Member of his family" includes a spouse, child, grandehild, parent, grandparent, or other relative or person with whom the judge maintains a close familia! relationship. As a family fiduciary a judge is subject to the following restrictions:
(1) He should not serve if it is likely that as a fiduciary he will be engaged in proceed. ings that would ordinarily come before him, or if the estate, trust, or ward be-comes involved in adversary proceedings in the court on which he serves or one un-der its appellate jurisdiction.
Commentary
The Effective Date of Compliance provision of this Code qualifies this subsection with regard to a judge who is an executor, administrator, trustee,financial af-fairs, except to the extent that limitations thereon are required to safeguard the proper performance of his duties. Owning and reeeiving income from investments do not as such affect the performance of a judge’s duties.
(7) Information acquired by a judge in his judicial capacity should not be used or disclosed by him in financial dealings or for any other purpose not related to his judicial duties.
D. Fiduclary Activities. A judge should not serve as the executor, administrator, trustee, guard. ian, or other fiduciary, except for the estate, trust, or person of a member of his family, and then only if such service will not interfere with the proper performance of his judicial duties. "Member of his family" includes a spouse, child, grandehild, parent, grandparent, or other relative or person with whom the judge maintains a close familia! relationship. As a family fiduciary a judge is subject to the following restrictions:
(1) He should not serve if it is likely that as a fiduciary he will be engaged in proceed. ings that would ordinarily come before him, or if the estate, trust, or ward be-comes involved in adversary proceedings in the court on which he serves or one un-der its appellate jurisdiction.
Commentary
The Effective Date of Compliance provision of this Code qualifies this subsection with regard to a judge who is an executor, administrator, trustee,
LXXV
CODE OF JUDICIAL
CONDUCT
or other fiduciary at the time this Code becomes effective.
(2) While acting as a fiduciary a judge is sub-ject to the same restrictions on financial activities that apply to him in his person-al capacity.
Commentary
A judge’s obligation under this Canon and his obligation as a fiduciary may come into conflict. For example, a judge should resign as trustee if it would result in detriment to the trust to divest it of holdings whose retention would place the judge in violation of Canon 5C(3).
E. Arbitration. A judge should not act as an ar-bitrator or mediator.
F. Practice of Law. A judge should not practico law.
G. Extra-judicial Appointments. A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his country, state, or locality on ceremonial occasions or in connection with historical, ed-ucational, and cultural activities.
Commentary
Valuable services have been rendered in the past to the states and the nation by judges appointed by the executive to undertake important extra-judicial assignments. The appropriateness of con-ferring these assignments on judges must be re-assessed, however, in light of the demands on ju-dicial manpower created by today’s crowded dock-ets and the need to protect the courts from in-volvement in extra-judicial matters that may prove to be controversial. Judges should not be expect-ed or permitted to accept governmental appoint-ments that could interfere with the effectiveness and independence of the judiciary.
CANON 6
A Judge Should Regularly File Reports of Compensation Received for Quasi-Judicial and Extra-Judicial Activities
A judge may receive compensation and reim-bursement of expenses for the quasi-judicial and extra-judicial activities permitted by this Code, if the source of such payments does not give the ap-pearance of influencing the judge in his judicial duties or otherwise give the appearance of im-propriety, subject to the following restrictions:
A. Compensation. Compensation should not ex-ceed a reasonable amount nor should it ex-ceed what a person who is not a judge would receive for the same activity.
B. Expense Reimbursement. Expense reimburse-ment should be limited to the actual cost of travel, food, and lodging reasonably incurred
C.
by the judge and, where appropriate to the occasion, by his spouse. Any payment in ex-cess of such an amount is compensation.
Public Reports. A judge should report the date, place, and nature of any activity for whieh he received compensation, and the name of the payor and the amount of compensation so received. Compensation or income of a spouse attributed to the judge by operation of a community property law is not extra-judicial compensation to the judge. His report should be made at least annually and should be filed as a public document in the office of the clerk of the court on whieh he serves or other of-fice designated by rule of court.
CANON 7
A Judge Should Refrain from Political Activity Inappropriate to His Judicial Office
A. Political Conduct in General.
(1) A ludge or a candidate for election to ju-dicial office should not:
(a) act as a leader or hold any office in a political organization;
(b) make speeches for a political organi-zation or candidate or publicly endorse a candidate for public office;
Commentary
A candidate does not publicly endorse another candidate for public office by having his name on the same ticket.
(e) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend po-litical gatherings, or purchase tickets for political party dinners, or other functions, except as authorized in sub-section A(2) ;
(2) A judge holding an office filled by public election between competing candidates, or a candidate for such office, may, only insofar as permitted by law, attend po-litical gatherings, speak to such gather-ings on bis own behalf when he is a can-didate for election or re-election, identify himself as a member of a political party, and contribute to a political party or or-ganization.
(3) A judge should resign his office when he becomes a candidate either in a party pri-mary or in a general election for a non-judicial office, except that he may con-tinue to hold his judicial office while be-ing a candidate for election to or serving as a delegate in a state constitutional convention, if he is otherwise permitted by law to do so.
(4) A judge should not engage in any other political activity except on behalf of meas-ures to improve the law, the legal system, or the administration of justice.
B. Campaign Conduct.
(1) A candidate, including an incumbent judge, for a judicial office that is filled either by public election between compet-ing candidates or en the basis of a merit system election:
(a) should maintain the dignity appro-priate to judicial office, and should encourage members of his family to adhere te the same standards of po-litical conduct that apply to him;
(b) should prohibit public officials or em-ployees subject to bis direction or con-trol from doing for him what he is prohibited from doing under this Canon; and except to the extent att-thorized under subsection B(2) or B(3), he should not allow any other person to do for him what he is pro-hibited from doing under this Canon;
(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his views on disputed legal or political issues; or misrepresent bis identity, qualifications, present position, or oth-er fact.
(2) A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates should not himself solicit or accept campaign funds, or solicit publicly stated support, but he may establish conunittees of responsible per-sons to secure and manage the expen-diture of funds for his campaign and to obtain public statements of support for his candidaey. Such eommittees are not prohibited from soliciting campaign con-tributions and public support from law-yers. A candidate’s committees may so-licit funds for his campaign no earlier than [90] days before a primary eleetion and no later than [90] days after the last election in which he participates during the election year. A candidate should not use or permit the use of campaign contributions for the private benefit of himself or members of his family.
Commentary
Unless the candidate is required by law to file a list of his campaign contributors, their names should not be revealed to the candidate.
[Each jurisdiction adopting this Code should prescribe a time limit on soliciting campaign funds that is appropriate to the elective process there-in.]
(3) An incumbent judge who is a candidate for retention in or re-election to office without a competing candidate, and whose candldacy has drawn active opposition, may eampaign in response thereto and may obtain publicly stated support andeampaign funds in the manner provided in subsection B(2).
Compliance with the Code of Judicial Conduct
Anyone, whether or not a lawyer, who is an of-ficer of a judicial system performing judicial func-tions, including an officer such as a referee in bankruptcy, special master, court commissioner, or magistrate, is a judge for the purpose of this Code. All judges should comply with this Code ex-cept as provided below.
A. Part-time Judge. A part-time judge is a judge who serves on a continuing or periodic basis, but is permitted by law to devote time to some other profession or occupation and whose com-pensation for that reason is less than that of a full-time judge. A part-time judge:
(1) is not required to comply with Canon 5C (2), D, E, F, and G, and Canon 6C;
(2) should not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court en which he serves, or act as a lawyer in a proceeding in which he has served as a judge or in any other proceeding related thereto.
B. Judge Pro Tempere. A judge pro tempore is
a person who is appointed to act temporarily as a judge.
(1) While acting as such, a judge pro tempore
is not required to comply with Canon 5C(2), (3), D, E, F, and G, and Canon 6C.
(2) A person who has been a judge pro
tempore should not act as a lawyer in a
proceeding in which he has served as a judge or in any other proceeding related thereto.
C. Retired Judge. A retired judge who receives the same compensation as a full-time judge on the court from which he retired and is eligible for recall to judicial service should comply with all the provisions of this Code except Canon 5G, but he should refrain from judicial service during the period of an extra-judicial appointment not sanctioned by Canon 5G. All other retired judges eligible for recall to ju-dicial service should comply with the provi-sions of this Code governing part-time judges.
Effective Date of Compliance
A person to whom this Code becomes applicable should arrange his affairs as soon as reasonably possible to comply with it. If, however, the de-mands on his time and the possibility of conflicts of interest are not substantial, a person who holds judicial office on the date this Code becomes effec-tive may:
(a) continue to act as an officer, director, or non-legal advisor of a family busi-ness;
(b) continue to act as an executor, ad-ministrator, trustee, or other fiduciary for the estate or person of one who is not a member of his family.
MINIMUM REQUIREMENTS
FOR ADMISSION TO LEGAL PRACTICE IN THE UNITED STATES
This table contains information of educational and residence requirements reported in 1974. Full information and subsequent changes, if any, may be obtained by writing to the Clerk of the highest appellate Court or the Secretary of the Bar Board in each state. The compilation following does not reflect changes which may become effective on or after January 1, 1975
*Originally published in the Review of Legal Education, Fall 1972 and reprintedi with the permission of the American Bar Association 1973 and its Section of Legal Education and Admissions to the Bar.
MINIMUM REQUIREMENTS FOR ADMISSION TO LEGAL PRACTICE IN THE UNITED STATES
This table contains information of educational residence requirements reported September 1, 1970.
Full information and subsequent changes, if any, may be obtained by writing to the Clerk of the
highest appellate Court or the Secretary of the Bar Board in each state.
Minimum amount of general education Duration and distribution of
period of law study required before:
if pursued:
Residen: Requirements (for original applicants only, does not apply to lawyers seeking
admission on comity for whom 5
Beginning period Taking final
of law study examination
Wholly outside a law school
Partly in
a law school
Wholly in a law school
separare requirements are usually laid down)
American Bar Three years of resident study in a ……………………….. Not
permitted At least the law school study rec- Association
college for a 3-yrs. full-time or
commended in the next column.
Recommen- 2-yrs. for a 4-yrs. full-time law
No recommendation as to sup-
dations school study
plementary office work
Alabama 96 semester hours or
Not permitted No credit for office work 144 quarter hours
Alaska 3 years college
Not permitted Not permitted
Arizona 3 years college
Not permitted Not permitted
Arkansas 2 years college
Not permitted Not permitted
Three years of full-time or "a longer course. equivalent in the number of working hours," of
part-time study
4 years from school approved by Board or if school is approved by A.B.A.. 3 years
Graduare of A.B.A. approved lasv school
Graduate of an A.B.A. approved law school except for one who has practiced in another state at
least 5 of last seven years imme- diately preceding application
Graduation from law school ap- proved by A.B.A.
Bona fide residence at time of certifica- tMn
30 days before exam
Bona fide residence al time of application
California 2 years approved college, or be ………………………..
21 years of age ami pass an educa- tional equivalency examination or achieve admission lo an ac-
credited law school
4 years in California law office or California judge’s chambers, or by correspondence. Must study
aggregate of 3.456 hours and must take and pass first-year law stu- dents’ examination al end of
first year of law study
4 years. Any comhination of study menlioned in preceding column and law school study
3 yrs. full-time and graduation or 4 yrs. part-time in accredited law school. 4 yrs. in
unaccredited law school and must take and pass first year students’ examination at end of first
year of law study
Colorado 3 years regular college work M Not
permitted Not permitted
A.B.A. approved law school
Graduation as a full-time student or a part-time student under the standards adopted by the House
of Delegares of the ABA on February 12,1973
Bona Me residence for 1 mon. prior to examination and continuing unid admis- sion, except person
admitted and prac- ticing in another state, must become a resident prior to admission
BLACK’S
DICTIONARY OF LAW
FOURTH EDITION
levad
A. The first letter in the English and most other alphabets derived from the Roman or Latin al-phabet, which was one of several ancient Italian alphabets derived from the Greek, which was an adaptation of the Pheenician. The first letter in the Phcenician alphabet was called aleph, mean-ing "ox", which is also the meaning of the first letter in the Greek alphabet, alpha.
Alpha and the second letter of the Greek alpha-bet, beta, were combined to form "alphabet," which is largely the same in different languages. In Danish, Dutch, Polish and Swedish al fabet; in English, German and French, alphabet; in Italian, Portuguese and Spanish, alfabeto; in Russian, alfabetii, etc. This striking similarity shows borrowing, either mediately or immediate-ly, from the same source.
A has several different forms, the most curious of which is little a and big A. All of our letters were first capitals, and remained so for a long time. Then small letters alone were used for centuries. Later capitals were used with small letters, largely for ornamental purposes. The an-cient Egyptians had twenty a’s to choose from, and it is said that a is the initial letter of about one-seventh of all Armenian words.
Nundinal Letters
A is also the first of the nundinal letters con-sisting of the first eight letters of the alphabet. These letters were repeated successively from the first to the last day of the year by the Romans and every ninth day was market day, when the country people carne into the city to buy and seli and to attend to their private or religious affairs. However, no market day could coincide with the first day of January or the ninth day of the other months. The first market day of the year fell eight days from the preceding market day, which
Black’s Law Dictionary Revised 4th Eci.-
if the nundinal letter for a given year was, for example, A, the market day always coincided with A, which was the ninth day from the preceding market day, both inclusive. No judgment could be pronounced, nor assemblies of the people held, on these days, but this was changed by the lex Hortensia in 246 B.C. Proposed laws were post-ed, and a vote could not be taken until three Ro-man weeks (trinum nundinum), or 24 days, had elapsed. A judgment debtor had 30 days to sat-isfy judgment against him. If he failed to do so, he was seizecl and taken before the magistrate and if he could find no surety he was put in chains and held by the judgment creditor for 60 days, during which time the amount of his debt was proclaimed on three successive market days, and then if he failed, the XII Tables provided:
" * * Tertüs nundinus partis secanto; si plus
minusive secuerint, se fraude esto." (On the
third market day let him be cut into pieces; if any one Cany creditor] cut more or less than his share, it shall not be a crime). Shylock, it will be remembered, had to cut just a pound of fiesh and no more.
Dominical or Sunday Letters
A is also the first of the Dominical or Sunday letters, consisting of the first seven letters of the alphabet, which were introduced to replace the nundinal letters of the Romans. These letters, repeated successively from the first to the last day of the year, show the order of Sundays according to the Christian calendar. If the first day of January is on Sunday, all the rest of the days des-ignated by A will also be Sundays. Since each common year ends on the same day of the week that it begins, the dominical letters change each year in retrogression. If the year is a leap year an adjustment is made either on the 25tI! or 29th
of February. The dominical letters are used to determine the date of Easter but may also be used to determine the day of the week on which a given date falls in any year.
A as Symbol
Both as a symbol and as an abbreviation, A is used in every phase of human activity and learn-ing. In law, commerce, manufacturing, engineer-ing, printing, music, medicine, geometry, mathe-maties, physics, chemistry, logic, philosophy, aero-nautics, artillery, etc., these devices, which are meaningless to the unitiated, simply could not be dispensed with. The Puritans first burned A on the forehead of the adulterer,—or at least on that of the adulteress!—and later fastened it on the sinner’s clothing. The Roman judges used three wax-covered wooden tables. On one was in-scribed A for Absolgo (I acquit); on the second C for Condemno (I condemn), and on the third N. L. for Non liquet (It is not clear). When a proposed law was to be voted on, Roman voters received two tablets, on one of which was
in-scribed A for antiguo (for the old law), and on the other U. R. for Uti rogas (as you ask). A is also the first of the letters employed by the Se-mites and the ancient Greeks as numeral signs. If the Greek a was accented aboye, it stood for 1; if below, it stood for 1000. The Romans also used A as a numeral sign before they adopted the let-ter D. If A was not accented, it stood for 500, but if accented thus, Á, it stood for 5000.
The symbol @ is a graphic modification of the Latin ad, meaning "at" or "to". Some European railroads use A to designate first class railroad coaches. In European tourist guides A is used to designate places where there are hotels able to satisfy the wants of motorists. Mercantile agencies use A to indicate the highest commercial credit. A is also the highest mark given by teach-ers to pupils. Ship registries in United States, England, Germany and Norway use A to indicate the highest class of vessel.
In the record of American Shipping Al stands for a first-class vessel of the highest seaworthi-ness, the lower degrees being expressed by A11/2, etc., A3 being the lowest. In Lloyd’s Register Al means a first-class vessel. A printed in red means an over-aged vessel. iE a third-class ves-sel. The broad A means an iron ship. The de-scription of a ship as "Al" amounts to a war-ranty. 011ive v. Booker, 1 Exch. 423.
In ceramics A has various meanings. On fine old Sevres A alone shows that the piece was made in 1753, whereas AA shows that it was made in 1777. A is also used as a brand by certain breed-ers of bulls for the bull ring, as well as by manu-facturera of fine Toledo swords. A denotes the first of a series, and is used to distinguish the first page of a folio from the second, which is marked b (Coke, Litt. 114a, 114b), as well as the first foot-note and the first section or subsection in statutes. It is also the name of the sixth note of the natural diatonic scale of C, or the first note
of the relative minor scale. To this note all or-chestral instruments are tuned. A also indicates the key in which many great pieces of music are composed. The money coined at the Paris mint is marked with an A, and it was long supposed that such coinage was superior to that of the pro-vincial mints. This gave rise to the phrase Etre marqué á Z’A (to be marked with an A) and was used to indica te a man of eminent rank or merit, just as we use A-1 or A to indicate excellence of either persons or commodities.
A is also used in numerous other phrases and proverbs. For example, A word to the wise is sufficient. This ordinarily admonitory proverb was held to be libellous in view of the context in which it was used. One who had sold out to his partner warned customers that the buyer was not responsible for his debts, since he was a minor, and that "a word to the wise is sufficient." The court said: "But when what was previously said is followed by the significant and proverbially pre• cautionary words—’A word to the wise is suffi-cient,’ the idea is at once conveyed that plaintiff, is wanting in honor and integrity as a business man, and that those who should deal with him would suffer loss." Hays v. Mather, 15 Ill.App. 30, 34. For the phrase, from alpha to omega, there is our from A to Z and A to izzard, and the German von A bis Z, which mean from beginning to end; completely; thoroughly; or in more modern slang, from soup to nuts. The German proverb Wer A sagt, mus auch B sagen is based on a profound knowledge. of human nature, and translates, you can’t say A without saying B; in for a penny, in for a pound. In other words, don’t take the first step if you don’t want to go the limit. Of a very ignorant or stupid person it has long been said that He does not know great A from a bull’s foot or that he knows ni A ni B (neither A nor B). In Birds of a feather fiock together, a means the same, or a feather means the same kind.
A as Abbreviation
As an abbreviation a, either alone or in combi-nation with other letters, is used in all the arts and sciences as well in hundreds of non-technical ways. Its meaning as an abbreviation largely de-pends on context. In common usage, it may mean about, accepted, acne, aged, answer, ante, area, amateur, etc. It is also used for almost any name of a person beginning with A, as Alfred, Anna, etc. In chemistry it stands for argon. A note provided for "Int. @ 6% p. a." The court said: "The letter IP when used in a note, as it is here, is known and recognized among commercial peo-ple and businessmen as standing for ‘at.’ " Bel-ford v. Beatty, 34 N.E. 254, 255, 145 III. 414, 418.
A is an abbreviation of adversus (against). Versus and its abbreviation v. are much oftener used in this sense, though the original Latin meaning of versus is toward; in the direction of.
‘Á, angstrom unit; the unit for measuring the length of light waves. The ultra violet rays of sunlight between 3130A. and 2900A activate pro-
vitamins in the skin and certain foods, so as to produce the antirachitic substance known as vita-min D, which is also extracted from fish liver oils
The Spelling of A
A was formerly spelt a-per-se, a ("a" by itself makes the word "a") of which A-per-se-A, A per-sey, and apersie were corruptions and synony-mous with superior, chief, first, etc
A in Latin and Law Latin
Among the Romans this letter was used in crim-inal trials. The judges were furnished with small tables covered with wax, and each one in-scribed on it the initial letter of his vote: A (ab-solvo) when he voted to acquit the accused; C (condemno) when he was for condemnation; and N L (non liquet), when the matter did not appear clearly, and he desired a new argument.
The letter A (i. e. antiguo, "for the old law") was inscribed upon Roman ballots under the Lex Tahellaria, to indicate a negative vote; Tayl.Civ. Law, 191., 192.
A as Indefinite Article
A is the form of the indefinite article that is used before consonants and initial consonant sounds, on being used before initial vowel sounds, as, for example, a house, a year, a utility; but an oak, an ape and an hour, because the h is silent. .Formerly where the initial h of certain words was not accented, as historical, hypothetical, hotel, humble, etc., an was used, but now the h is no longer silent, and the best usage in both the Unit-ed States and England is to use a before such words. A hypothetical question, a historical mon-ument, a hotel, etc., are the correct forms.
The word "a" has varying meanings and uses. "A" means "one" or "any," but less emphatically than either. It may mean one where only one is intended, or it may mean any one of a great num-ber. It is placed before nouns of the singular number, denoting an individual object or quality individualizad. First Trust Joint Stock Land Bank of Chicago v. Armstrong, 222 Iowa 425, 269 N.W. 502, 506, 107 L.R.A. 873.
The article "a" is not necessarily a singular term; it is often used in the sense of "any" and is then applied to more than one individual object. Phila.delphia & R. R. Co. v. Green & Flinn, 2 W.W. Harr.(Del.) 78, 119 A. 840, 846; In re Sanders, 54 Law J.Q.B. The article "a" is not generally used in a singular sense unless such an intention is clear from the language of the statute, 1 C.J.S., A, p. 1, but statute providing that parties to "a" reorganization shall be deemed a single employ-ing unit referred to quality or nature of changes, rather than quantity, and meant not one or only one, but any, and fact that there had been more than one reorganization did not prevent statute from applying. Lindley v. Murphy, 387 Ill. 506, 56 N.E.2d 832, 838. So under a statute providing that the issuance of "a" certificate to one carrier should not bar a certificate to another over the same route, a certificate could be granted to more than two carriers over the same route. State ex. rel. Crown Coach Co. v. Public Service Commis-sion, 238 Mo.App. 287, 179 S.W.2d 123, 127. But the meaning depends on context. For example, in Workmen’s Compensation Act, on, or in or about "a" railway, factory, etc., was held not to mean any railway, factory, etc., but the railway, fac-tory, etc., of the employer. Francis v. Turiaer, [1900] 1 Q.B. 478; 69 L.J.Q.B. 182; 81 L.T. 770; 48 W.R. 228; 64 J.P. 53.
Insurance against loss occasioned by "a sea" did not limit insured to loss occasioned by a single wave, but covered losses occasioned by heavy waves during voyage. Snowden v. Guion, 101 N. Y. 458, 5 N.E. 322.
In State ex rel. Atty. Gen. v. Martin, 60 Ark. 343, 30 S. W. 421, 28 L.R.A. 153, the state Constitution provided for "a judge" in each circuit. Owing to incrcase in judicial business, the Legislature provided for an additional judge for the sixth circuit. It was contended that the statute was unconstitutional. The court raid:
"Now, the adjective ‘a,’ commonly called the ‘indefinite article,’ and so called, too, because it does not define any particular person or thing, is ectirely too indefinite, in the connection used, to define or lirnit the number of judges which the legislative wisdom may provide for the judicial circuits of the state. And it is perfectly obvious that its office and meaning was well understood by the framers of our constitution, for nowhere in that instru-ment do we find it used as a numerical limitation. It is insisted that if ‘a’ does not mean ‘une,’ and ‘but one,’ In the section quoted, then the way is open for a latitudi-narian constructjon in the various other sections where it occurs.
" * • • So the question recurs as to the slg,niflcance of the letter ‘a,’ for the convention must be taken tu’ have meant what they have plainly said. It perforrns precisely the same office here as in every other section where it occurs. Section 6 of the article 7 says, ‘A judge of the supremo court shall be learned in the law,’ etc.; section 16 says, ‘A clrcult judge shall be learned in the law,’ etc.; section 41, ‘A justice of the peace shall be a qualilied elector and a resident of the township,’ etc. 1)oes the
word In those sections mean orle, and only one, judge or justice? If so, which one’.’ In the same section in which ‘a judge’ occurs tve find, le shall be "a" conserva-tor of the peace within the circuit.’ Does ‘a conservator’ mean that he is to be the only conservator of the peace for the circuit? If so, this provision is plainly in conflict with others. See sections 4, 40. It is apparent that ‘a’ \vas used before the word ‘judge’ in the section under consideration because, according to our English idiom, the sentence could not have been euphoniously expressed without it. In some languages–the Latin and Russian, for instance—it would not have been used at all. It could have been omit-ted without in the least impairing the serse, and its use gave no additional force or meaning to the sentence. To use the illustration of the learned counsel for the state: If one orders ‘a sack of flour, a ham, a horse, a ton of coal,’ etc., it is understood he means but one. So it would be understood if he left off the ‘a,’ and said ‘sack of flour, ham, horse, ton of coal,’ the ‘a’ being used before the words beginning with the consonant sound simply to pre-serve the euphony. If the limitation is not in the word ‘judge’ without the ‘a,’ there is certainly no restriction with it, According to Mr. Webster, ‘a’ means ‘one’ or ‘any,’ but less ’emphatically than either.’ It may mean one where only one is intended, or it may be any one of a great number. That is the trouble. Of itself, it is in no cense a term of limitation. If there were a doren judges in any one circuit each would still be ‘a judge’ for that circuit. Mr. Webster also says, ‘It is placed before nouns of the singular number, denoting an individual object, or quality individualized."Quality’ is define(‘ as (1) ‘the condition of being of such a sort as distinguished from others; (2) special or temporary character; profes-sion, occupation.’ Webst. Dict. The ‘a was so used here. The character, or profession, individualized, was that of a judge. The functlons of the office to be performed were those of ‘a judge,’ not governor, shcriff, or constable. A review of the various other provisions of the constitution, supra, where the word ‘a’ occurs, shows that no absurd consequences, such as lining the caces in other depart-ments with a multitudinous array of incumbents, could possibly result."
Where the law required the delivery of a copy of a notice to husband and a copy to wife, the sheriff’s return that he had delivered "a copy" to husband and wife was insufficient. State v. Da-vis, Tex.Civ.App., 139 S.W.2d 638, 640.
In Lakeside Forge Co. v. Freedom Oil Works, 205 Pa, 528, 109 A. 216, 217, it was said:
" ‘A car or two’ signifies an lndeflnite small number, and may include as many as seven. In that respect the expression is similar to ‘a few.’ It must be construed with reference to the subject matter, and is not nceessarily confined to one or two. It is like the words ‘in a day or two.’ "
In Deutsch v. Mortgage Securities Co., 96 W.Va. 676. 123 S.E. 793, the (leed containecl a covenant against construc-tion of flats or apartments and provided that no dwelling but "a one-famfly house" should be bullt on the lot. The grantee built two one-family dwelling houses; and ft was held that he could properly do so.
"A" is sometimes read as "the." Bookham v. Potter, 37 L.J.C.P. 276; L.R. 3 C.P. 490; 16 W.R. 806; 18 L.T. 479, though the two terms are ordinarily distinguishable. Howell v. State, 138 S.E. 206, 164 Ga. 204. The grant of "a" right of sport-ing on land, gives only a concurrent right, but the grant of "the" right gives it exclusively. Sutherland v. Heathcote, [1892] 1 Ch. 475; 61 L.J. 248; 66 L.T. 210. And a license to fish with "a" rod and line does not justify the use of more than one rod and one line. Combridge v. Harrison, 72 L.T. 592; 64 L.J.M.C, 175; 59 J.P. 198.
Hinson v. Hinson, 176 N.C. 613, 97 S.E. 465, in-volved a will providing that son taking care of widow should receive $100 "a year." It was held that the quoted words were not synonymous with annually, but merely fixed the rate of compensa-ti6n, and that there was no right to compensation until widow’s death.
AAA. Agricultural Adjustment Act.
A. A. C. Anno ante Christum, the year before Christ.
A. A. C. N. Anno ante Christum natura, the year before the birth of Christ.
A AVER ET TENER. L. Fr. (L. Lat. habendum et tenendum.) To have and to hold. Co.Litt. §§ 523, 524. A aver et tener a ?uy et a ses heires, a touts j0113’8,—to have and to hold to him and his heirs forever. Id. § 625. See Ayer et Tener.
A. B. Able-boclied seaman. In English law a sea-man is entitled to be rated A. B. when he has served at sea three years before the mast. In the United States the term "Able Seaman" is used. For the requirements of able seaman, see 46 U.S. C.A. § 672. Also artium baccalaurens, bachelor of arts. In England, generally written B. A.
A. B. A. American Bar Association.
A. B. A. J. American Bar Association Journal.
A BON DROIT. With good reason; justly; right-fully.
A. C., Anno Christi, the year of Christ.
A/C means account and is much used by book-keepers. As used in a check, it has been bold not a direction to the bank to credit the amount of the check to the person named, but rather a mem-orandum to identify the transaction in which the check was issued. Marsh v. First State Bank & Trust Co. of Canton, 185 Ill.App. 29, 32.
A CANCELLANDO. From cancelling. 3 El. Comm. 46.
A CANCELLIS. The Chancellor.
A CANCELLIS CURIAE EXPLODI. To be ex-pelled from the bar of the court.
A CAPELLA OR A LA CAPELLA. In music, in the church style; also that the instruments are to play in unison with the vocal part, or that one part is to be played by a number of instruments.
A CAUSA DE CY. For this reason.
A. C. C. Agricultural Credit Corporatton. A CE. For this purpose.
A CEL JOUR. At this day.
A CIELO USQUE AD CENTRUM. From the heavens to the center of the earth. Or more fully, Cujus est solum ejes est usgue ad coelum et ad inferos. The owner of the soil owns to the heavens and also to the lowest depths. Or, Cujus est solum est casque ad cceluni,—the owner of the soil owns to the heavens. This doctrine has been questioned. Butler v. Frontier Telephone Co., 186 N.Y. 486, 79 N.E. 716, 11 L.R.A.,N.S., 920–and the flight of airplanes and recent oil and gas reg-ulations undoubtedly have qualified the owner’s dominion not only in the heavens but ín the lowest depths. See American Digest System, Mines and Minerals, C>92, and Trespass,
A COMMUNI OBSERVANTIA NON EST RECE-DENDUM. From common observance there should be no departure; there must be no de-parture from common usage. 2 Coke, 74; Co. Litt. 186a, 229b, 365a; Wing.Max. 752, max. 203. A maxim applied to the practice of the courts, to the ancient and established .forms of pleading and conveyancing, and to professional usage general-ly. Id. 752-755. Lord Coke applies it to common professional opinion. Co.Litt. 186a, 364b.
A CONFECTIONE. From the making. Clay-ton’s Case, 5 Coke, pt. II, la; Anonymous, 1 Ld. Raym. 480.
A CONFECTIONE PRAESENTIUM. From the making of the indentures. Clayton’s Case, 5 Coke, pt. II, la.
A CONSILIIS. (Lat. consilium, advice.) Of counsel; a counsellor. The term is used in the civil law by some writers instead of a responsis. Spelman, "Apocrisarius."
A CONTRARIO SENSU. On the other hand; in the opposite sense.
A CUEILLETTE. In French law. In relation to the contract of affreightment, signifies when the cargo is taken on condition that the master suc-ceeds in completing his cargo from other sources. Arg.Fr.Merc.Law, 543.
A. D. Anno Domini, in the year of our Lord.
An information charging that act was committed cm 4th day of August, "A. D. 190 ," alleged an impossible year "and it is quite evident that the last figure of the year was inadvertently ornitted but what that figure was
intended to be * cannot be inferred with any cer- tainty." People v. Weiss, 168 Ill.App. 502. 504.
"The information alleges that the oflense therein sought to be charged was committed ‘on the 30th day of April, A. D. 19 . There is no other allegation of time in the infor-formation, and it is in effect and for all practica! purposes wholly wanting in any allegation as to time. The time alleged is impóssible and in that respect the information is absurd. The objcction is not merely tcchnical, as that term is commonly used, but is substantial and fatal." Peo-ple v. Wagner, 172 Ill.App. 84, S’
A DATO. From the date. Cro.Jac. 135. See A Datu.
A DATU. Law Latin. From the date. Anony-mous, 1 Ld.Raym. 480; Haths v. Ash, 2 Salk. 413. See A Dato.
A DIE CONFECTIONIS. From the day of the making. Barwick’s Case, 5 Coke 93b.
A DIE DATUS. F’rom the day of the date. Hat-ter v. Ash, 1 Ld.Raym. 84; Anonymous, 1 Ld. Raym. 480; Seígnorett. v. Noguire, 2 Ld.Raym. 1241. Used in loases to determine the time or running of the estate, and when so used includes the day of the date. Doe v. Watkíns, 1 Cowp. 189, 191. But contra, see Haths v. Ash, 2 Salk. 413.
A DIGNIORI FIERI DEBET DENOMINATIO. Denomination ought to be from the more worthy. The description (of a place) should be taken from the more worthy subject (as from a will). Fleta, lib. 4, c. 10, § 12.
A DIGNIORI FIERI DEBET DENOMINATIO ET RESOLUTIO. The title and exposition of a thing ought to be derived from, or given, or made with reference to, the more worthy degree, quality, or species of it. Wing.Max. 265, max. 75.
A. E. C. Atomic Energy Commission.
A FINE FORCE. Of pure necessity.
A FORCE. Of necessity.
A FORCE ET ARMIS. With force and arms.
A FORFAIT ET SANS GARANTIE. In French law. A formula used in indorsing commercial paper, and equivalent to "without recourse."
A FORTIORI. With stronger reason; much more. A term used in logic to denote an argu-ment to the effect that because one ascertained fact exists, therefore another, which is included in it, or analogous to it, and which is less im-probable, unusual, or surprising, must also exist.
A GRATIA. By grace; not of right.
A. 11., Anno Hegirae (in the year of the hegira). A ISSUE. At issue.
A JURE SUO CADUNT. They (for example, per-sOns abandoning chattels) lose their right.
A JUSTITIA (QUASI A QUODAM FONTE) 0M-NIA <TURA EMANANT. From justice, as a foun-tain, all rights flow. Brac. 2 b.
A LA GRANDE GREVAUNCE. To the great grievance.
A LARGE. Free; at large.
A LATERE. Lat. Collateral. Used in this sense in speaking of the succession to property. Bract. 20b, 62b. From, on, or at the side; collaterally. A latere ascendit ( jus). The right ascends col-laterally. Justices of the Curia Regis are de-scribed as a latere regis residentes, sitting at the side of the King; Bract. fol. 108a; 2 Reeve, Hist. Eng.L. 250.
In Civil Law and by Bracton, a synonym for e transverso, across. Bract. fol. 67a.
Applied also to a process or proceeding. Keilw.
159. Out of the regular or lawful course; inci-dentally or casually. Bract. fol. 42b; Fleta, lib. 3, c. 15, § 13.
From the sido oí; denoting closeness of inti-macy or connection; as a court held before audi-tors specialiter a latere regis destinatis. Fleta, lib. 2, c. 2, § 4.
Apostolic; having full powers to represent the Pope as if he were present. Du Cange, Legati, a latero; 4 Bla.Com. 306.
A LIBELLIS. L. Lat. An officer who had charge of the libelli or petitions addressed to the soy-ereign. Calvin. A name sometimos given to a chancellor, (cancellarius,) in the early history of that office. Spelman, "Cancellarius."
A L’IMPOSSIBLE NUL N’EST TENU. No one is bound to do the impossible.
A LOUR FOY. In their allegiance.
A LUY ET A SES HEIRES A TOUTS JOURS. To him and to his heirs forever.
A. M. Ante meridiem, before noon. Only the abbreviation is ordinarily used. Orvik v. Cassel-man, 105 N.W. 1105, 15 N.D. 34. Also artium magister, master of arts. Also annus mirabilis, the wonderful year-1666, the year of the defeat of the Dutch fleet and of the great London fire. Also anno mundi, in the year of the world; that is, when the creation of the world is said to have taken place, 4004 B. C.
A. M. A. Agricultura’ Marketing Act.
A MA INTENT. On my action. Mitchell v. Reynolds, 1 Smith Lead.Cas. (7th Am. ed.) 516.
A MANIBUS. Lat. Royal scribe. Amanuensis.
A MANU SERVUS. Lat. A handservant; a scribe; a secretary.
A ME. (Lat. ego, I.) A term in feudal grants denoting direct tenure of the superior lord. 2 Bell, II.L.Sc. 133.
Unjustly detaining from me. He is said to withhold a me (from me) who has obtained pos-session of my property unjustly. Calvinus, Lex. To pay a me, is to pay from my money.
A MENSA ET TIIORO. Lat. From table and bed, but more commonly translated, from bed and board. A kind of divorce, which is rather a separation of the parties by law, than a dis-solution of the marriage. 27 C.J.S., Divorce, §
160.
A MULTO FORTIORI. By far the stronger rea-son.
A NATIVITATE. From birth, or from infancy. Denotes that a disability, status, etc., is congeni-taL 3 Bla.Comm. 332; Reg.Orig. 266b.
A NON POSSE AD NON ESSE SEQUITUR AR-GUMENTUM NECESSARIE NEGATIVE, LICET NON AF’FIRMATIVE. A literal translation-From impossibility to non-existence the inference follows necessari]y in the negativo, though not in the affirmative—-is as ambiguous as the original. It could be translated thus: The negative infer-ence of non-existence necessarily follows from im-possibility of existence, but the aflirmative infer• ence of existence cannot be drawn from mere pos-sibility,
A. O. C. Anno orbis conditi, the year of the crea-tion of the world.
A OUTRANCE. To the bitter end; to excess; to the utmost extent. Frequently incorrectly written by persons with only a smattering of French á l’outrance.
A PAIS. To the country; at issue.
A PALATIO. L. Lat. From Palatium, (a pal-ace.) Counties palatine are hence so called. 1 Bl.Cornin. 117. See Palatium.
A. P. C. Alien Property Custodian.
A. P. C. N. Anno post Christum natum, the year after the birth of Christ.
A PIRATIS AUT LATRONIBUS CAPTI LIBERI PERMANENT. Persons taken by pirates or rob-bers remain free. Dig. 49, 15, 19, 2; Gro. de .1. B. lib. 3, c. 3, § 1.
A PIRATIS ET LATRONIBUS CAPTA DOMI-NUM NON MUTANT. Capture by pirates and robbers does not change title. Bynk. bk. 1, c. 17; 1 Kent, Comm. 108, 184. No right to booty vests in piratical captors; no right can be derived from them by recaptors to the prejudice of the original owners. 2 Wood.Lect. 428.
A POSTERIORI. Lat. From the effect to the cause; from what comes after. A term used in logic to denote an argument founded on experi-ment or observation, or one which, taking ascer-tained facts as an effect, proceeds by synthesis and induction to demonstrate their cause.
A. P. R. C. Anno post Roman conditam, year alt-er the foundation of Rome.
A PRENDRE. L. Fr. To take; to seize. Bref á prendre la terre, a writ to take the land. Fet Ass. § 51. A right to take something out of the soil of another is a profit a prendre, or a right coupled with a profit. 1 Crabb, Real Prop. p. 125, § 115. Distinguished from an easement. 5 Adol. & E. 758. Sometimes written as one word, apprendre, apprender. See Profit á prendre.
Rightfully taken from the soil. 1 N. & P. 172; Waters v. Lilley, 4 Pick. (Mass.) 145, 16 Arn.Dec. 333.
A PRIORI. Lat. From the cause to the effect; from what goes before. A term used in logic to
denote an argument founded on analogy, or ab-stract considerations, or one which, positing a general principie or admitted truth as a cause, proceeds to deduce from it the effects which must necessarily follow.
A PROVISIONE VIRI. By the provision of man. 4 Kent, Comm. 55.
A QUO. Lat. From which. A court a quo falso written "a qua") is a court from which a cause has been removed. The judge a quo is the judge in such court. Clegg v. Alexander, 6 La. 339.
A term used, with the correlative ad quem (to which), in expressing the computation of time, and also of distance in space. Thus, dies a quo, the day from which and dies ad quem, the day to which, a period of time is computed. So, termi-nas a quo, the point or limit from which, and terininus ad quem, the point or limit to which, a distance or passage in spa.ce is reckoned.
A QUO INVITO ALIQUID EXIGI POTEST. From whom something may be exacted against his will.
A. R. Anno Regni. In the year of the reign; as A. R. V. R. 22, (Anno Regni Victoriae Reginae vicesimo secundo) in the twenty-second year of the reign of Queen Victoria.
A REMENAUNT. Forever.
A RENDRE. (Fr. to render, to yield.) That which is to rbe rendered, yielded, or paid. Profits á rendre comprehend rents and services. Ham. N.P. 192.
A RESCRIPTIS VALET ARGUMENTUM. An ar-gument from rescripts i. e. original writs in the registerl is valid. Co.Litt. 11 a.
A RESPONSIS. L. Lat. In ecclesiastical law. One whose office it was to give ór convey an-swers; otherwise termed responsalis, and apocris-iarius. One who, being consulted on ecclesiastical matters, gave answers, counsel, or advice; other-wise termed a consiliis. Spelman, "Apocrisi-arius."
A RETRO. L. Lat. Behind; in arrear. Et redi-tus proveniens indo d retro fuerit, and the rent issuing therefrom be in arrear. Fleta, lib. 2, c. 55, § 2; c. 62, § 14.
A RUBRO AD NIGRUM. Lat. From the red to the black; from the rubric or title of a statute (which, anciently, was in red letters), to its body, which was in the ordinary black. Tray.Lat.Max.; Bell, "Rubric;" Erskine, Inst. 1, 1, 49.
A SAVOIR. To wit.
A SUMMO REMEDIO AD INFERIOREM AC. TIONEM NON IIABETUR REGRESSUS, NEQUE AUXILIUM. From (af ter using) the highest remedy, there can be no recourse (going back) to an inferior action, nor assistance, (derived from
it.) Fleta, lib. 6, c. 1, § 2. A maxim in the old law of real actions, when there were grades in the remedies given; the rule being that a party who brought a writ of right, which was the highest writ in the law, could not afterwards resort or descend to an inferior remedy. Bract. 112b; 3 Bl.Comm. 193, 194.
A TEMPORE CUJUS CONTRARII MEMORIA NON EXISTET. From a time of which there is no memory to the contrary.
A TENERIS ANNIS. By reason of youth. A TERME. For a or the term.
A TERME DE SA VIE. For the term of his life. U.B. 3 Edw. II, 55.
A TERME QUE N’EST MYE ENCORE PASSE. For a term that has not yet passed.
A TERME QUE PASSE EST. For a term that has passed.
A TORT. Without reason; unjustly; wrongfully.
A TORT ET A TRAVERS. Without considera-tion or discernment.
A TORT OU A DROIT. Right or wrong.
A VERBIS LEGIS NON EST RECENDENDUM. The words of a statute must not be departed from. 5 Coke 119; Wing.Max. 25. A court is not at liberty to disregard the letter of a statute, in fa-vor of a supposed intention. 1 Steph.Comm. 71; Broom, Max. 268.
A VINCULO MATRIMONII. Lat. From the bond of matrimony. A term descriptive of a kind of divorce, which effects a complete dissolution of the marriage contract. See Divorce.
A B (fr. Abba, Syr., Father). The eleventh month of the Jewish civil year, and the fifth of the sa-cred year. It answers to the moon that begins in July, and consists of thirty days. On the 24th is observed a feast in memory of the abolishment of the Sadducean law, which required sons and daughters to be equal heirs and heiresses of their pa rents’ estates. Brown’s Dict. of Bible, John’s Bib.Antiq. AB, at the beginning of English-Saxon names of places, is generally a contraction of ab-bot or abbey; whence it is inferred that those places once ha d an abbey there, or belonged to one elsewhere, as Abingdon in Berkshire. Blount’s Law Gloss. Wharton’s Law Lexicon.
AB. ABR. Abridgment.
AB ABUSU AD USUM NON VALET CONSE. QUENTIA. A conclusion ^ s to the use of a thing from its abuse is invalid. Broom, Max. 17.
AB ACTIS. Lat. An officer having charge of acta, public records, registers, journals, or min-utes; an officer who entered on record the acta or proceedings of a court; a clerk of court; anotary or actuary. Calvin.Lex.Jurid. See "Acta." This, and the similarly formed epithets á cancellis,
secretis, á libellis, were also anciently the titles of a chancellor, (cancellarius,) in the early his-tory of that office. Spelman, "Cancellarius."
AB AGENDO. Disabled from acting; unable to act; incapacitated for business or transactions of any kind.
AB ANTE. Lat. Before; in advance. Thus, a legislature cannot agree ab ante to any modifica-tion or amendment to a law which a third person may make. Allen v. McKean, 1 Sumn. 308, Fed. Cas.No.229 (college charter).
AB ANTECEDENTE. Lat. Beforehand; in ad-vance. 5 M. & S. 110.
AB ANTIQUO. From old times; from ancient time; of old; of an ancient date. 3 Bl.Comm. 95.
AB ASSUETIS NON FIT INJURIA. From things to which one is accustomed (or in which there has been long acquiescence) no legal injury or wrong arises. If a person neglect to insist on his right, he is deemed to have abandoned it. Amb. 645; 3 Brown, Ch. 639; Jenk.Cent.Introd. vi.
AB EPISTOLIS. Lat. An officer having charge of the correspondence (epistolce) of his superior or sovereign; a secretary. Calvin.; Spiegelius.
AB EXTRA. (Lat. extra, beyond, without.) From without. Lunt v. Holland, 14 Mass. 151.
AB INCONVENIENTI. From hardship, or iricon-venience. An argument founded upon the hard-ship of the case, and the inconveniente or disas-trous consequences to which a different course of reásoning would lead. Barber Asphalt Paving Co. v. Hayward, 248 Mo. 280, 154 S.W. 140.
AB INITIO. Lat. From the beginning; from the first act; entirely; as to all the acts done; in the inception. A party may be said to be a tres-p’asser, an estate to be good, an agreement or deed to be void, or a marriage or act to be unlawful, ab initio. Plow. 6a, 16a; 1 Bl.Comm. 440; Hop-kins v. Hopkins, 10 Johns. (N.Y.) 369.
Before. Contrasted in this sense with ex post facto, 2 Shars.Bla,Comm. 308; or with postea, Calvinus, Lex., initiam.
Validity of lnsurance nolicy ab initio, In re Millers’ & Manufacturers’‘Ins. Co., 97 Minn. 98, 106 N.W. 485; Uncon-stitutional statute as not 1,nid ab initio, State v. Poulin, 105 Me. 224, 74 A. 119, 24 L.R.A.,N.S., 408; physical inca-pacity, marriage not void ab initio, Bennett v. Bennett, 169 Ala. 618, 53 So. 986, L.R.A.1916C, 693.
AB INITIO MUNDI. Lat. From the beginning of the world. Ab initio 9nundi usque ad hodier-num diem, from the beginning of the world to this day. Y.B.M. 1 Edw. III, 24.
AB INTESTAT. Intestate. 2 Low.Can. 219. Merlin, Répert.
AB INTESTATO. Lat. In the civil law. From an intestate; from the intestate; in case of intes-tacy. Hcereditas ab intestato, an inheritance de-
rived from an intestate. Inst. 2, 9, 6. Successio ab intestato, succession to an intestate, or in case of intestacy. Id. 3, 2, 3; Dig. 38, 6, 1. This an-swers to the descent or inheritance of real estate at common law. 2 Bl.Comm. 490, 516; Story, Confi.Laws, § 480. "Heir ab intestato." 1 Burr. 420. The phrase "ab intestato" is generally used as the opposite or alternative of ex testamento, (from, by, or under a will.) Vel ex testamento, vel ab intestato [hcereditates] pertinent,—inheri-tances are derived either from a will or from an intestate, (one who dies without a will.) Inst. 2, 9, 6; Dig. 29, 4; Cod. 6, 14, 2.
AB INVITO. Unwillingly. Against one’s will. By or from an unwilling party. A transfer ab invito is a compulsory transfer. See in invitum and invito.
AB JUDICATIO. A removal from court.
AB TRATO. Lat. By one who is angry. A de-vise or gift made by a man adversely to the in-terest of his heirs, on account of anger or hatred against them, is said to be made ab irato. A suit to set aside such a will is called an action ab irato. Merlin, Répert. Ab irato. Snell v. Weldon, 239 III. 279, 87 N.E. 1022.
AB OLIM. Of old.
AB OVO. The egg, hence from the beginning in allusion to old Roman custom of beginning a meal with eggs and ending with fruit, ab ovo usque ad mala. To begin with eggs and end with fruit. Also, at times in allusion to poets who began his-tory of Trojan war with the egg from which Hel-en was said to have been hatched in contrast with Homer who plunged into the midst of things, or in media res.
AB URBE CONDITA. See A.U.C.
ABACIST or ABACISTA. A caster of accounts, an arithmetician.
ABACTION. A carrying away by violence.
ABACTOR. A stealer and driver away of cattle or beasts by herds or in great numbers at once, as distinguished from a person who steals a single animal or beast. Also called abigeus, q. v.
ABADENGO. In Spanish law. Land owned by an ecclesiastical corporation, and therefore ex-empt from taxation. In particular, lands or towns under the dominion and jurisdiction of an abbot. Escriche, Dicc. Raz.
ABALIENATE. To transfer interest or title.
ABALIENATIO. In Roman law. The perfect conveyance or transfer of property from one Ro-man citizen to another. This term gave place to the simple alienatio, which is used in the Digest and Institutes, as well as in the feudal law, and from which the English "alienation" has been formed. Inst. 2, 8, pr.; Id. 2, 1, 40; Dig. 50, 16, 28; Calvinus, Lex., Abalienatio.
ABALIENATION. In the Civil Law, a making over of realty, or chattels to another by due course of law.
ABAMITA. Lat. In the civil law. A great-great-grandfather’s sister, (abavi soror.) Inst. 3, 6, 6; Dig. 38, 10, 3; Calvinus, Lex. Called omita maxi-ma. Id. 38, 10, 10, 17. Called, in Bracton, aba-mita magna. Bract. fol. 68b.
ABANDON. To desert, surrender, forsake, or cede. To relinquish or give up with intent of nev-er again resuming one’s right or interest. Bur-roughs v. Pacific Telephone & Telegraph Co., 220 P. 152, 155, 109 Or. 404. To give up or to tease to use. Southern Ry. Co. v. Commonwealth, 105 S.E. 65, 67, 128 Va. 176. To give up absolutely; to forsake entirely; to renounce utterly; to re-linquish all connection with or concern in; to desert. Commonwealth v. Louisville & N. R. Co., 258 S.W. 101, 102, 201 Ky. 670. It includes the in-tention, and also the external act by which it is carried into effect.
ABANDONEE. A party to whom a right or prop-erty is abandoned or relinquished by another. Applied to the insurers of vessels and cargoes. Lord Ellenborough, C.J., 5 Maule & S. 82; Abbott, J., Id. 87; Holroyd, J., Id. 89.
ABANDONMENT. The surrender, relinquish-ment,,, disclaimer, or cession of property or of rights. Stephens v. Mansfield, 11 Cal. 363 (land) ; Munsey v. Marnet Oil & Gas Co. (Tex.Civ.App.) 199 S.W. 686, 689 (oil lease) ; Shepard v. Alden, 201 N.W. 537, 539, 161 Minn. 135, 39 A.L.R. 1094 (bowling alleys) ; Union Grain & Elevator Co. v. McCammon Ditch Co., 240 P. 443, 445, 41 Idaho 216 (water rights).
The giving up of a thing absolutely, without ref-erence to any particular person or purpose, as throwing a jewel into the highway; leaving a thing to itself, as a vessel at sea; vacating prop-erty .with the intention of not returning, so that it may be appropriated by the next comer. 2 Bl. Comm. 9, 10; Judson v. Malloy, 40 Cal. 299, 310. Intention to forsake or relinquish the thing is an essential element, to be proved by visible acts. Sikes v. State, Tex.Cr.App., 28 S.W. 688; Jordan v. State, 107 Tex.Cr.R. 414, 296 S.W. 585, 586 (auto parts); Kunst v. Mabie, 72 W.Va. 202, 77 S.E. 987, 990 (uncut timber) ; Dow v. Worley, 126 Okl. 175, 256 P. 56, 60 (oil and gas lease) ; Duryea v. Elkhorn Coal & Coke Corporation, 123 Me. 482, 124 A. 206, 208.
The voluntary relinquishment of possession of thing by owner with intention of terminating his ownership, but without vesting it in any other per-son. Dober v. Ukase Inv. Co., 139 Or. 626, 10 P. 2d 356, 357. The relinquishing of all title, posses-sion, or claim, or a virtual, intentional throwing away of property. Foulke v. New York Consol. R. Co., 228 N.Y. 269, 127 N.E. 237, 238, 9 A.L.R. 1384 (package in subway car).
Abandonment In law depends upon concurrence of inten-tion to abandon and some overt act or failure to act which carnes Implication that owner neither claims nor retains
any Interest. Stinnett v. Kinslow, 238 Ky. 812, 38 S.W.2d 920, 922.
"Abandonment" includes both the intention to abandon and the external act by which the intention is carried Into effect. In determining whether one has abandoned his property or rights, the intention is the flrst and para-mount object of inquiry, for there can be no abandon-ment without the intention to abandon. Boatman v. An-dre, 44 Wyo. 352, 12 P.2d 370, 373. Generally, "abandon-ment" can arise from a single act or from a series of acts. Holly Hill Lumber Co. v. Grooms, 16 S.E.2d 816, 821, 198 S.C. 118.
Time 1s not an essential element of "abandonment," although the lapse of time may be evidente of an Inten-tion to abandon, and where it is accompanied by acts man-ifesting such an intention, It may be considered In deter-mining whether there has been an abandonment. Uliman ex rel. Eramo v. Payne, 127 Conn. 239, 16 A.2d 286, 287.
Mere nonuser is not necessaril:, no abandoninent. 11,11- nett y. Dickinson, 93 lid. 258. 49 A. 838 (heme); \Velsh Taylor, 134 N.Y. 450, 21 N.14. 896, 18 L.Il A. 535; Phillis Gross. 32 1-1.11), 428. 113 N.Y,". 373, 378 (0001ract for (leed). See, however, Corkran, 11111 K Co. v. A. H. Kohleinnon 136 Vid. 525, 111 A, 471, 471 (trademark).
from negleot: City of Vallezo v. Burrill. 64 Cal.App. 399. 221 P. 676 (pipo line).
"Abandonment" differs from surrender In that surrender requires an agreement, Noble v. Sturm, 210 Mich. 462, 178 N.W. 99, 103; and from forfeiture. in that forfeiture may be against the intention of the party alleged to have forfeited, Gula Water Co. v. Green, 29 Arlz. 304, 241 P. 307, 308.
In the Civil and French Law it is the act by which a debtor surrenders his property for the benefit of his creditors; Merlin, Répert. See Abandonment for Torts.
Actions, In General
Failure for indefinite period to prosecute action or suit, Morris v. Phifer State Bank, 90 Fla. 55, 105 So. 150, unless caused by an injunction, Barton v. Burbank, 138 La. 997, 71 So. 134. By statute in some states a definite time has been stated which will render a suit abandoned and subject to dis-missal. Public Utilities Commission v. Smith, 298 III. 151, 131 N.E. 371, 375.
Failure to submit issue by instruction, Unten lachner v. Wells, 317 Mo. 181, 296 S.W. 755, 756; failure to perform conditions necessary to valid appeal or writ of error, Lewis v. Martin, 210 Ala. 401, 98 So. 635; Board of Public Instruction for Marion County v. Goodwin, 89 Fla. 379, 104 So. 779; failure to take issue upon garnishee’s an-swer, Phelps v. Schmuck, 151 Kan. 521, 100 P.2d 67, 71.
Assignments of Error
Not argued. Meyer v. Hendrix, 311 Ill.App. 605, 37 N.E.2d 445, 446.
Not presented in brief. Roubay v. United States, QC.A.Cal., 115 F.2d 49, 50.
Not supported by point, argument or authority. Cone v. Ariss, 13 Wash.2d 650, 126 P.2d 591, 593.
Bankrupt’s Property
In re Mirsky, C.C.A.N.Y., 124 F.2d 1017. Building Restrictions
Violations of restrictive covenant, Meyer v. Stein, 284 Ky, 497, 145 S.W.2d 105, 107.
Cemeteries
No new burials and neglect of graves, Andrus v. Remmert, 136 Tex. 179, 146 S.W.2d 728, 730; casual use for farming purposes, In re Gundry, 294 Mich. 221, 292 N.W. 709, 711; disuse as to new interments, failure to cut grass ¿?r care for head-stones, In re Board of TransportItion of City of New York, 251 N.Y.S. 409, 413, 14 Misc. 557.
Children
Desertion or willful forsaking. Cannon v. State, 53 Ga.App. 264, 185 S.E. 364, 366.
Foregoing parental duties. Wright v. Fitzgib-bons, Miss., ?1 So.2d 709, 710.
Withdrawal or neglect of parental duties. In re Potter, 85 Wash. 617, 149 P. 23.
Relinquishment of parental claims. Glendin-ning v. McComas, 188 Ga. 345, 3 S.E.2d 562, 563.
Separation agreement committing custody of child to father. Gardner v. Hall, 132 N.J.Eq. 64, 26 A.2d 799, 809.
Separation from the child and failure to supply its needs. State v. Clark, 148 Minn. 389, 182 N.W. 452, 453.
Criminal offense, separation from child, and failure to supply its needs. Curtis v. State, 48 Ga.App. 135, 172 S.E. 99, 100.
Defeating recovery for wrongful death. In re Schiffrin’s Estate, 272 N.Y.S. 583, 585, 152 Misc. 33.
Compensation Claims
Failure to file application for hearing. Hanks v. Southern Public Utilities Co., 210 N.C. 312, 186 S.E. 252.
Condemnation Proceedings
Dismissal of a petition. Will County v. Cleve-land, 372 Ill. 111, 22 N.E.2d 929, 930.
Failure of commissioners to report, Kean v. Union County Park Commission, 129 N.J.Eq. 67, 18 A.2d 279, 280, or judgment determining invalid-ity. City of Los Angeles v. Abbott, Cal., 12 P.2d 19, 22; failure to pay moneys adjudged, Detroit International Bridge Co. v. American Seed Co., 228 N.W. 791, 795, 249 Mich. 289
Construction Work
Cessation of operation and intent of owner and contractor to cease operations permanently, or at least for definite period, or some fair notice or knowledge of abandonment by lien claimant, ac-tual or implied. Block v. Love, 136 Or. 685, 1 P.2d 588, 589
Contracts
To constitute "abandonment" by conduct, ac-tion relied on must be positive, unequivocal, and inconsistent with the existence of the contract, Mood v. Methodist Episcopal Church South, Tex. Civ.App., 289 S.W. 461, 464. Abanclonment is a matter of intent, Lohn v. Fletcher Oil Co., 38 Cal. App.2d 26, 100 P.2d 505, 507, and implies not only
nonperformance, but an intent not to perform which may be inferred from acts which necessari-ly point to actual abandonment, Losei Realty Cor-poration v. City of New York, 254 N.Y. 41, 171 N.E. 899
Copyrights
Common-law rights, Tatuas v. 20th Century Fox Film Corporation, Sup., 25 N.Y.S.2d 899, 901; sale and delivery of uncopyrighted painting to state-owned public institution, Pushman v. New York Graphic Soc., Sup., 25 N.Y.S.2d 32, 34; copyright-ed lectures not delivered to general public, but only to paying audiences and classes, National Institute for Improvement of Memory v. Nutt, D.C.Conn., 28 F.2d 132, 134.
Crups
Sharecropping tenant’s willful failure to culti-vate crops, Heaton v. Slaten, 25 Ala.App. 81, 141 So. 267, 268
Ditches
Town’s nonuser for a short period after per-mitting ditch to be blocked was insufficient. Fos-ter v. Webster, Sup., 44 N.Y.S.2d 153, 156. Mere nonuser does not constitute. Musselshell Valley Farming & Livestock Co. v. Cooley, 86 Mont. 276, 283 P. 213, 218. After prescriptive right attached, water shortage in subsequent years renderíng use of ditch unnecessary would not constitute. Bowman v. Bradley, 270 P. 919, 922, 127 Or. 45.
Domicile
Permanent removal from, Stafford v. Mills, 57 N.J.L. 570, 31 A. 1023.
Easements
To establish "abandonment" of an easement created by deed, there must be some conduct on part of owner of servient estate adverse to and inconsistent with existence of easement and con-tinuing for statutory period, or nonuser must be accompanied by unequivocal and. decisive acts clearly indicating an intent on part of owner of easement to abandon use of it. Richardson v. Tumbridge, 111 Conn. 90, 149 A. 241, -242.
Permanent cessation of use or enjoyment with no inten-tion to resume or reclaim. Welsh v. Taylor, 134 N.Y. 450, 31 N.E. 896, 18 L.R.A. 535; Corning v. Gould, 16 Wend., N.Y., 531. Intention and completad act are both essential. Town of Orlando v. Stevens, 90 Okl. 2, 215 P. 1050, 1051; Goodman v. Brenner, 219 Mich. 55, 188 N.W. 377; brick-ing up of the openings for stairway and halls of adjoining buildings, Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173, 178; where object of use of dedicated property wholly fails, Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922. But mere nonuser is not sufficient. Smelcer v. Rippetoe, 24 Tenn.App. 516, 147 S.W.2d 109, 113, 114; O’Barr v. Dun-can, 187 Ga. 642, 2 S.E.2d 82, 83; right of way acquired by grant. Burnham v. Mahoney, 222 Mass. 524, 111 N.E. 396, 398; Raleigh, C. & S. Ry. Co. v. McGuire, 171 N.C. 277, 88 S.E. 337, 339. Where owner of building had easement in adjoining wall, wrecking building preparatory to erection of a new building, did not cause loss of easement. Joel v. Publix-Lucas Theater, 193 Ga. 531, 19 S.E.2d 730, 736. And a mere temporary or occasional obstruction or use of an easement by the servient owner is not an "abandonment". Cerber v. Appel, Mo.App., 164 S.W.2d 225, 228. However nonuser of railroad crossing for more than 20 years, and
conveyance of strlps of land adjoining original right of way to railroad in fee simple, without reservation, con-stituted abandonment of easement in crossing. Cityco Realty Co. v. Philadelphia, B. & W. R. Co., 158 Md. 221, 148 A. 441, 444
Employment
During Christmas holidays, notwithstanding a call at employer’s office and discussing business, Stinson v. Dairymen’s League Co-op. Ass’n, 186 A. 687, 688, 14 N.J.Misc. 671. Deviation from route, Loper v. Morrison, 145 P.2d 4, 23 Ca1.2d 600; truck driver unnecessarily permitting passenger to drive, Ginther v. J. P. Graham Transfer Co., 33 A. 2d 923, 924, 348 Pa. 60. Contra where truck driv-er remained on driver’s seat, directing operation of truck, and watched passenger’s driving, Gin-ther v. J. P. Graham Transfer Co., 27 A.2d 712, 714, 149 Pa.Super. 635; and where truck driver became sick, Matzek v. United Storage & Truck-ing Co., 186 A. 193, 122 Pa.Super. 146. Truck drivers becoming intoxicated and remaining from work, Naylon v. State, Ct.C1., 40 N.Y.S.2d 587, 590; Coal miner contrary to orders, riding on an empty car, Soroka v. Philadelphia & Reading Coal & Iron Co., 138 Pa.Super. 296, 10 A.2d.904, 907. But automobile driver’s choosing lcmger route by paved highways to pick up a needed change of clothing at home did not constitute an "abandon-ment" of bis employ-ment. Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 114 P.2d 841, 844
Exceptions on Appeal
Not argued in brief, Currin v. Currin, 219 N.C. 815, 15 S.E.2d 279, 282. Not set out in brief, Star Mf g. Co. v. Atlantic Coast Line R. Co., 222 N.C. 330, 23 S.E.2d 32, 40. Not complaining of rulings on exceptions, Buckalew v. Brockner, La:App., 11 So.2d 720, 722. Failing to answer appeal to re-urge exception, John Myers Implement Co. v. De Boer, La.App., 9 So.2d 832, 833. Filing an-swers without insisting on decision on exceptions to jurisdiction ratione personw, Weaver v. Mans-field Hardwood Lumber Co., La.App., 4 So.2d 781, 782.
Family
Where father during three or four months fol-lowing his departure contributed only $32 to sup-port of wife and three minor children, Howton v. Howton, 5tCal.App.2d 323, 124 P.2d 837, 839. Con-tra where father helped to support family, In re Iless’ Estate, 257 N.Y.S. 278, 282, 143 Misc. 335.
Franehises
Inferior service and lack of any service for few short intervals held insufficient to show "aban-donment" of ferry franchise. McConnell v. Crit-temlen County, 250 Ky. 359, 63 S.W.2d 329.
Highways
Where public ceases to use street or highway under circumstances indicating intent to abandon, Grand Trunk Western R. Co. v. City of Flint, D. C.Mich., 55 F.2d 384, 386. But short sections of highway, discontinued by state highway commis-sion upon relocating highway, were not aban-doned. Mosteller v. Southern Ry. Co., 220 N.C. 275, 17 S.E.2d 133, 135. And cultivation of high-way for short period by abutting landowners was not an "abandonment" of highway. Chicago & E. I. Ry. Co. v. Road Dist. No. 10, 353 III. 160, 187 N.E. 155, 157.
Hornesteads
Removal with an intention never to return con-stitutes an "abandonment", and nothing less does. Farmers’ State Bank of Georgetown v. Roberts, Tex.Civ.App., 59 S.W.2d 1089. Must be voluntary action, Wood v. Wood, 203 Ark. 344, 157 S.W.2d 36, 38. Temporary absence with intention to re-turn, Brewer v. Brewer, 268 Ky. 625, 105 S.W.2d 582, 584. Absence of a design of permanent abandonment, Lanier v. Lanier, 95 Fla. 522, 116 So. 867, 868. Absence by necessity, Hinds v. Buck, 177 Tenn. 444, 150 S.W.2d 1071, 1072; sickness, In re Dunlap’s Estate, 161 Or. 93, 87 P.2d 225, 229; advancing years and inability to tare for selves, Gulf Production Co. v. Continental Oil Co., Tex., 132 S.W.2d 553, 573, 576; to rent to winter tour-ists, Collins v. Collins, 150 Fla. 374, 7 So. 443, 444. A deed with reservation of a life estate did not constitute "abandonment" of homestead. Arighi v. Rule & Sons, 41 Cal.App. 852, 107 P.2d 970, 972. Nor did filing of suit to partition land. Carr v. Langford, Tex.Civ.App., 144 S.W.2d 612, 613.
Husband
The act of a husband or wife who leaves his or her consort willfully, and with an intention of causing perpetual separation. People v. Cullen, 153 N.Y. 629, 47 N.E. 894, 44 L.R.A. 420.
Wife’s leaving husband for a trip te Europe of less than two months against husband’s wishes, did not constitute. In re Boesenberg’s Estate, 37 N.Y.S.2d 194, 196, 179 Misc. 3.
Abandonment as cause for divorce must be willful and intentional without intention of returning, and without consent of spouse abandoned. Hickey v. Hickey, 152 Wash. 429, 277 P. 994, 995. Husband forcibly expelling wife from home, Tenorio v. Tenorio, 44 N.M. 89, 98 P.2d 838, 847, Refusal to talk to husband did not establish. Wyahllyeth v. Wyahllyeth, 182 Md. 663, 32 A.2d 380, 381. Wife refusing without good cause to accompany husband when moving, Ventrano v. Vetrano, 54 N.Y.S.2d 537, 539.
Word "abandoned," within statute providing that no wife who has abandoned husband shall have right of elec-don to take against provisions of husband’s will, has meaning ascribed thereto in matrimonial litigations, and carries no connotation of infidelity. Adultery of aban-donad wife did not constitute "abandonment". In re Green’s Estate, 280 N.Y.S. 692, 702, 155 Misc. 641.
A wife who told husband to get out of wife’s home, and made no effort to effect a reconelliation, was not entltled to appointment as administratrix of his estate. In re Ban-aszak’s Estate, 1 N.Y.S.2d 15, 164 Misc. 829.
Where husband paid wife living apart in caring for their child, she had not abandoned husband so as to preclude the recovery of an industrial pension for his death. John-son v. Department of Labor and Industries of Washington, 3 Wash.2d 257, 100 P.2d 382, 385. But wife who had, prior te husband’s death, left husband, resisted efforts toward a reconciliation, and instituted annulment proeeedings, was not entitled to compensation for husband’s death. La Fountain v. Industrial Accident Commission, 13 Cal.App.2d 130, 56 P.2d 257, 258.
Insured Property
A relinquishment or cession of property by the owner to the insurer of it, in orden to claim as for
C.C.A.I11., 12 F.2d 733, 738.
The term is used only in reference to risks in naviga-tion; but the principie is applicable In tire insurance, where there are remnants, and sometimes. also, under stlpulations in life noticies in favor of creditors. Cincin-nati Ins. Co. v. Dufheld, 6 Ohio St. 200, 67 Am.Dec. 339.
Inventions
The giving up of rights by inventor, as where he surrenders his idea or discovery or relinquishes the intention of perfecting his invention, and so throws it open to the public, or where he negli-gently postpones the assertion of his claims or fails to apply for a patent, and allows the public to use his invention. Electric Storage Battery Co. v. Shimadzu, Pa., 59 S.Ct. 675, 681, 307 U.S. 5, 613, 616, 83 L.Ed. 1071.
Disclaimer of claim of patent, Triumph Explosivos v. Kilgore Mfg. Co., C.C.A.Md., 128 F.2d 444, 448; delaying
12 years alter reducing shoe to practice before applying for patent, Salisbury v. Pediforme Shoe Co., D.C.N.Y., 31 F.Supp. 3, 7; omitting for many years to take any step to reinstate or renew rejected application, Na-Mac Prod-ucts Corporation v. Federal Tool Corporation, C.C.A.M., 118 F.2d 167, 171; acquiescing in rejection of claims in patent application for device shown in later application for patent, Na-Mac Products Corporation v. Federal Tool Corporation, C.C.A.I11., 118 F.2d 167, 171; Na-Mac Prod-ucts Corporation v. Federal Tool Corporation, D.C.I11., 36 F.Supp. 426, 430. But mere lapse of time before an inven-tor applies for a patent is not sufficient. Imperial Brass Mfg. Co. v. Bonney Forge & Tool Works, D.C.Pa., 38 F. Supp. 829, 832. Patent application was not Oled until 21/2 years after date of conception of invention, Chicago Raw-hide Mfg. Co. v. National Motor Bearing Co., D.C.Cal., 50 F.Supp. 458, 460. Nor is disclosing, invention to individ-uals with purpose of interesting them in production or manufacture. Pennington Engineering Co. v. Houde En-gineering Corporation, D.C.N.Y., 43 F.Supp. 698, 706.
Leases in General
To constitute an "abandonment" of leased premises, there must be an absolute relinquish-ment of premises by tenant consisting of act and intention. Schnitzer v. Lanzara, 115 N.J.L. 332, 180 A. 234.
Closing up butcher shop with intention of giving up busi-ness and in removing all perishable merchandise, although tenant retained key and did not notify landlord of inten-tion to vacate premises, held an "abandonment" and not a ”surrender" of premises. Schnitzer v. Lanzara, 115 N. J.L. 332, 18 A. 234. Refusal by lessee of lessor’s offer to reconstruct burned building, Girard Trust Co. v. Tremblay Motor Co., 291 Pa. 507, 140 A. 506, 512. But tenants sur-rendering premises pursuant to notice of forfeiture did not "abandon" premisos. Becker v. Rute, 228 Iowa 533, 293 N.W. 18, 21.
Marriage
Withdrawal or denial of marital obligations without just cause, Reppert v. Reppert, Del.Super.,
13 A.2d 705, 1 Terry 492.
Mineral Leases
"Abandonment" consists of an actual act of re-linquishment, accompanied with the intent and purpose permanently to give up a claim and right of property. A distinction exists between "aban-donment" and "surrender" which is the relinquish-ment of a thing or a property right thereto to another, which is not an essential element ofabandonment. Distinction also exists between elements of "abandonment" and those of estoppel. Neither formal surrender of oil and gas lease nor release is necessary to effectuate "abandonment." Sigler Oil Co. v. W. T. Waggoner Estate, Tex.Civ. App., 276 S.W. 936, 938. Voluntary, intentional relinquishment of known right. Pure Oil Co. v. Sturm, 43 Ohio App. 105, 182 N.E. 875, 882.
Failing to start work under the lease for more than 40 years, Chapman v. Continental Oil Co., 149 Kan. 822, 89 P.2d 833, 834; breach of implied obligation to proceed with search and development of land with reasonable dili-gence, Wood v. Arkansas Fuel Oil Co., D.C.Ark., 40 F. Supp. 42, 45; no drilling on leased land for more than two years, and failure to pay rentals, Rehart v. Klossner, 48 Cal.App.2d 40, 119 P.2d 145, 147; drawing of casing from well with no intention of replacing it, Seaboard Oil Co. v. Commonwealth, 193 Ky. 629, 237 S.W. 48, 50. But there must he an intention by lessee to relinquish leased prem-isos, Carter Oil Co. v. Mitchell, C.C.A.Okl., 100 F.2d 945, 950, 951; or an intention not to drill, Carter 011 Co. v. Mitchell, C.C.A.Okl., 100 F.2d 945, 950, 951. And ceasing of operations is not alone sufficient. Fisher v. Dixon, 188′ Okl. 7, 105 P.2d 776, 777. Doing no substantial work for about one year immediately preceding suit to cancel lease, but remaining in possession and doing some work, Deace v. Stribling, Tex.Civ.App., 142 S.W.2d 564, 567; disconnec-tion of well for a brief Interval while well was being drilled to a greater depth, Cole v. Philadelphia Co., 345 Pa. 315, 26 A.2d 920, 923; abandoning work on unproductive well was not an abandonment of leased premisos. Smith v. Tunos, 195 La. 400, 196 So. 912, 914
Mining Claims
Relinquishment of a claim held by location with-out patent, where the holder voluntarily leaves his claim to be appropriated by the next comer, with-out any intention to retake or resume it, and re-gardless of what may become of it in the future. O’Hanlon v. Ruby Gulch Mining Co., 48 Mont. 65, 135 P. 913, 918. The term includes both the in-tention to abandon and the act by which the abandonment is carried into effect. Peachy v. Frisco Gold Mines Co., D.C.Ariz., 204 F. 659, 668.
Abandonment takes place whenever locator leaves claim without intention of holding it. Crane v. French, 39 Cal. App.2d 642, 104 P.2d 53, 60. But mere absence from claim, is not sufficient. Crane v. French, 39 Cal.App.2d 642, 104 P.20 53, 60. And one co-owner’s abandoning his interest is not an "abandonment" of entire claim. Crane v. French, 39 Cal.App.2d 642, 104 P.2d 53, 60
Motions
Motion not called to court’s attention until final hearing, Williams v. Smith, 149 Fla. 735, 6 So.2d 853, 854. Grounds not insisted on, Meador v. Now-ell, 67 Ga.App. 564, 21 S.E.2d 312, 314; not argued in brief, In re Ilorton’s Estate, 154 Kan. 269, 118 P. 2d 527, 531. Rulings not urged on appeal, Spears v. Brown Paper Mill Co., La.App., 9 So.2d 332, 334. Admitting sufficiency of evidence to sustain ver-dict, Copeland v. State, 66 Ga.App. 142, 17 S.E.2d 288, 289. But service of answer after making of motion to strike out portions of a complaint was not an "abandonment" of the motion. Russo v. Signode Steel Strapping Co., Sup., 37 N.Y.S.2d 166.
Office
Abandonment of a public office is a species of resignation, but differs from resignation in that
resignation is a formal relinquishment, while abandonment is a voluntary relinquishment through nonuser. State v. Harmon, 115 Me. 268, 98 A. 804, 805.
98 A. 804, 805.
It is not wholly a matter of intention, but may result from the complete abandonment of duties of such a con-tinuance that the law will infer a relinquishment. Wilk-inson v. City of Birmingham, 193 Ala. 139, 68 So. 999, 1002. It must be total, and under such circumstances as clearly to indicate an absolute relinquishment; and whether an officer has abandoned an office depends on his overt acts rather than his declared intention. Parks v. Ash, 168 Ga. 868, 149 S.E. 207, 209. It Implies nonuser, but nonuser does not, of itself constitute abandonment. The failure to per form the duties pertaining to the office must be with actual or imputed intention on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and Is a question of fact. Abandonment may result from an acquiescence by the officer in his wrongful removal or discharge, but, as in other cases of abandonment, the question of inten-tion Is
Temporary absence Is not ordinarily sufficient to consti-tute an "abandonment of office". State v. Green, 206 Ark. 361, 175 S.W.2d 575, 577. Responding to mandatory call for military service In emergency conditions, Caudel v. Prewitt, 296 Ky. 848, 178 S.W.2d 22, 25. And failure of former officers to assert right while decision of eligibility of elected successors was pending, was not an "abandon-ment" creating vacancy. State v. Levy Court of New Cas-tle County, Del., 3 W.W.Harr. 554, 140 A. 642, 645.
Oil Wells
Where owner ceased working on well to work elsewhere to procure money to do further work on well, well was not abandoned. Jones v. Jos. Greenspon’s Son Pipe Corporation, 313 Ill.App. 651, 40 N.E.2d 561.
Patento
There may be an abandonment of a patent, where the inventor dedicates it to the public use; and this may be shown by his failure to sue in-fringers, sell licenses, or otherwise make efforts to realize a personal advantage from his patent. Ransom v. New York, 4 Blatchf. 157, 20 Fed.Cas. 286.
Pleadings
The filing of a second amended complaint which was complete in itself and which did not reserve to itself any part of the original complaint or first amended complaint constituted an "abandon-ment" of the two former complaints. Seely v. Gilbert, 16 Wash.2d 611, 134 P.2d 710, 712. Cross-complainant by failing to take proper steps in trial court to have judgment that was silent on issues tendered by cross-complaint and answer thereto corrected did not thereby "abandon" cross-complaint. Brown v. National Life Ins. Co. of Washington County, Vt., 112 Ind.App. 684, 46 N.E. 2d 246, 24
Prescriptive Rights
Non-use alone is insufficient. Burkman v. City of New Lisbon, 246 Wis. 547, 19 N.W.2d 311, 313; Smelcer v. Rippetoe, 24 Tenn.App. 516, 147 S.W.2d 109, 113, 114.
Privileges
Witness before grand jury who answered ques-tions and immediately askea to retract answers,
and thereupon asserted his privilege, did not "abandon" right to claim the privilege. United States v. Weisman, C.C.A.N.Y., 111 F.2d 260, 261.
Property
"Abandoned property" in a legal sense is that to which owner has relinquished all right, title, claim, and possession, with intention of not reclaiming it or resuming its ownership, possession or enjoy-ment. Jackson v. Steinberg, Or., 200 P.2d 376, 377, 378.
There must be concurrence of act and intent, that Is, the act of leaving the premises or property vacant, so that it may be appropriated by the next comer, and the intention of not returning. Cohn v. San Pedro, L. A. & S. L. R. Co., 103 Cal.App. 496, 284 P. 1051, 1052. Relinquishment of all title, possession, or claim; a virtual intentional throwing away of property. Ex parte Szczygiel, Sup., 51 N.Y.S.2d 699, 702. Actual relinquishment, gas in pipe was not aban-doned. Hein v. Shell Oil Co., 315 III.App. 297, 42 N.E.2d 949, 952. Nor was a sewing machine and phonograph left with landlady as security. Dickens v. Singer Sewing Mach. Co., 140 So. 296, 298, 19 La.App. 735.
Property for Special Purposes
Moving of church to erect drilling rig held not "ab’andonment of use for church purposes." Aban-donment meant to wholly discontinue church use, and additional use was not sufficient. Skipper v. Davis, Tex.Civ.App., 59 S.W.2d 454, 457.
Merger of churches was not. Bridgeport-City Trust Co. v. Bridgeport Hospital, 120 Conn. 27, 179 A. 92, 94. Nor where intention was that nonconforming use as a fraterni-ty house would be resumed. State ex rel. Morehouse v. Hunt, 235 Wls. 358, 291 N.W. 745, 751, 752. Nor mere cessation of a nonconforming use in zoned area for a rea-sonable period. Beyer v. Mayor and Council of Baltimore City, Md., 34 A.2d 765, 768, 769. Nor a discontinuance of a garage during war while owner served In army and on return postponed repossession for garage purposes due to elty’s using building. State v. Murray, 195 Wis. 657, 219 N.W. 271, 272. But removal of manufacturing equipment from manufacturing plant, was. Francisco v. City of Co-lumbus, Ohio App., 31 N.E.2d 236, 243. And also disposing of all machinery, taking down smokestack and using prop-erty for storage purposes, notwithstanding vague intention of resuming slaughter house business. Beyer v. Mayor and City Council of Baltimore City, 182 Md. 444, 34 A.2d 765, 768, 769.
Dedicated use must wholly fati. Kirchen v. Remenga, 291 Mich. 94, 288 N.W. 344, 350, 351. Erection of bulidings on park lands without objection of adjolning owners was not sufficient. Kirchen v. Remenga, 291 Mich. 94, 288 N.W. 344, 350, 351. Nor city’s permitting a citlzen’s rock gárden on small portin of street improvement tract. Kendrick v. City of St. Paul, 213 Minn. 283, 6 N.W.2d 449, 451. Nor diverting parkway to roadway. Ford v. City of Detroit, 273 Mich. 449, 263 N.W. 425, 426. Nor tearing down school building for salvaging material for erection of a waiting station for school children. McCullough v. Swlfton Consol. School Dist., 202 Ark. 1074, 155 S.W.2d 353. Nor temporary disuse of school when land was offered for sale, later rescinded. Bernard v. Bowen, 214 N.C. 121, 198 S.E. 584.
Railroad Property
"Abandon" means to relinquish or give up with intent of never again resuming or claiming one’s rights or interests in, to give up absolutely, to for. sake entirely, to renounce utterly, to relinquish all connection with or concern in. Capital Transit Co. v. Hazen, 93 F.2d 250, 251, 68 App.D.C. 91. Aban-donment did not mean a partial disuse with an in-tention to complete station on a contingency, but meant a final relinquishment, or giving up with-out intention of resuming. Wheeling & L. E. Ry. Co. v. Pittsburgh & W. V. Ry. Co., C.C.A.Ohio, 33 F.2d 390, 392. And to constitute an "abandon-ment" of right of way, there must be not only an actual relinquishment of the property, but an in-tention to abandon it. Abens v. Chicago, B. & Q. R. Co., 388 Ill. 261, 57 N.E.2d 883, 887.
Nonuser is a fact in determining it, but, though contin-uad for years, is not conclusive. Arlington Realty Co. v. Keller, 105 N.J.Eq. 196, 147 A. 437, 438. Plowing up ser-elent estate is not enough. Les v. Alibozek, 269 Mass. 153. 168 N.E. 919, 922, 66 A.L.R. 1094. Nor proposal to dcliver and receive freight by motortrucks. New York Dock Ry. v Pennsylvania R. Co., D.C.Pa., 1 F.Supp. 20, 21. But failure to maintain and use that part of railroad on land conveyed constituted "abandonment." Atlantic Coast Line
R. Co. v. Sweat, 177 Ga. 698, 171 S.E. 123, 129.
Remedies
Election of one of two inconsistent remedies, Lumber Mutual Casualty Ins. Co. of New York v. Friedman, 176 Misc. 703, 28 N.Y.S.2d 506, 509.
Rights in General
The relinquishment of a right. It implies some act of relinquishment done by the owner without regard to any future possession by himself, or by any other person, but with an intention to aban-
don. Dyer v. Sanford, 9 Mete., Mass., 395, 43 Am. Dec. 399.
It is properly confined to incorporeal hereditaments, since legal rights once vested must be divested according to law. But equitabie rights may be abandoned. Great Falls Co. v. Worster, 15 N.H. 412; Cox v. Colossal Cavern Co., 210 Ky. 612, 276 S.W. 540; Inhabitants of School Dist. No. 4 v. Benson, 31 Me. 381, 52 Am.Dec. 618.
Ship and Freight
Act by which shipowner surrenders ship and freight to a trustee for benefit of claimants. See 46 U.S.C.A. § 185; Ohio Transp. Co. v. Davidson
S. S. Co., 148 F. 185, 78 C.C.A. 319
In France and other countries It is the surrender to a person having a elann arising out of a contract made with the master. American Transp. Co. v. Moore, 5 Mich. 368.
Taxing Power
Act by which shipowner surrenders ship and freight to a trustee for benefit of claimants. See 46 U.S.C.A. § 185; Ohio Transp. Co. v. Davidson
S. S. Co., 148 F. 185, 78 C.C.A. 319.
In France and other countries It is the surrender to a person having a elann arising out of a contract made with the master. American Transp. Co. v. Moore, 5 Mich. 368.
Taxing Power
Delegation of taxing power by legislature to city was not "abandonment of taxing power". Mouledoux v. Maestri, 197 La. 525, 2 So.2d 11, 16.
Trade-marks and Trade Names
There must be not only nonuser, but also an intent to abandon. Rockowitz Corset & Brassiere Corporation v. Madame X Co., 248 N.Y. 272, 162 N. E. 76, 78; Manz v. Philadelphia Brewing Co., D.C. Pa., 37 F.Supp. 79, 81. To give up use of trade. marks permanently. Neva-Wet Corporation of America v. Never Wet Processing Corporation, 277 N.Y. 163, 13 N.E.2d 755, 761.
Disuse not sufficient in itself. Sherwood Co. v. Sherwood Distilling Co., 177 Md. 455, 9 A.2d 842, 845. Nor using owner’s name. Bunte Bros. v. Standard Chocolates, D.C. Mass., 45 F.Supp. 478, 480. However, nonuser with ex-tensive use by another is sufficient. Sherwood Co. v. Sher-wood Distilling Co., 177 Md. 455, 9 A.2d 842, 845. But not where receiver continuously operated trade-mark licensee’s property. American Dirigold Corporation v. Dirigold Met-als Corporation. C.C.A.Mich., 125 F.2d 446, 454. Nor sale of all physical assets of manufacturing company by trusteein bankruptcy. Reconstruction Finance Corporation v. 3. G. Menihan Corporation, D.C.N.Y., 28 F.Supp. 920, 923.
Trusts
State aid for hospital, with stipulation for beds for emergency cases, did not establish an "aban-donment of trust". Noble v. First Nat. Bank of Anniston, 241 Ala. 85, 1 So.2d 289, 291.
Water Rights
"’Abandonment," as applied to water rights may be defined to be an intentional relinquishment of a known right. It is not base(‘ on a time ele-ment, and mere nonuser will not establish "aban-donment" for any less time, at least, than statu-tory period, controlling element in "abandonment" being matter of intent. Hammond v. Johnson, 94 Utah 20, 66 P.2d 894, 899. To desert or forsake right. The intent and an actual relinquishment must concur. Central Trust Co. v. Culver, 23 Colo. App. 317, 129 P. 253, 254. Concurrence of relin-quishment of possession, and intent not to resume it for beneficia’ use. Neither alone is suffi. cient. Osnes Livestock Co. v. Warren, 103 Mont. 284, 62 P.2d 206, 211.
Not using water when there was no water in creek be-cause of another user’s obstruction of fiow and appropria-tion of all the water did not constitute. New Mexico Prod-ucts Co. v. New Mexico Power CO.. 42 N.M. 311, 77 P.2d 634, 641. Nor did milling company’s permitting water’s use by upper irrigators. Hutchinson v. Stricklin, 146 Or. 285, 28 I’.2d 225, 230. Nor permitting upper appropriators to erect dam and store water. Irion v. Hyde, Mont., 81 P. 2d 353, 356. Nor chango of place of use of decreed water right. Harris v. Chapman, 51 Idaho 283, 5 P.28 733, 737. Nor failure to use all water to which entitled. Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92 P.2d 572, 577. Use of only enough water to water stock. because supply was insuflicient to irrigate land. Federal Land Bank v. Morris, 112 Mont. 445, 116 P.2d 1007, 1010. But right to use a particular quantity of water mal, be abandoned by failure to apply such water to a beneficial use for an unrcasonable period of time. Cundy v. Weber, 68 S.D. 214, 300 N.W. 17, 22
Wif e
Abandonment justifying divorce is a voluntary, unjustified, and final separation of one of married parties from the other, accompanied by an inten-tion to terminate the marital relation, or an un-justified refusal to resume suspended cohabita-tion, as where husband left his wife because his children by former marriage could not live peace-ably with second wife. Schwartz v. Schwartz, 158 Md. 80, 148 A. 259, 263.
Refusal by husband of request by sick wife without means of support, to return te heme held "abandonment" as respecto disorderly conduct. People v. Schenkel, 252 N.Y.S. 415, 418, 140 Mise. S43. Contra where separation agreement existed. People v. Cross, 291 N.Y.S. 597, 601, 161 Mise. 514. Where parties separated by agreement, and husband, in lieu of periodic payments for wife’s support, mude conveyance constituting, val viable consideration, held not "abandonment" as respects husband’s statutory right against wife’s will. In re McCann’s Estate, 281 N.Y.S. 445, 155 Misc. 763; or even if wife was justified in leaving hus-band on account of his cruel treatment, there must be a desertion without consent. In re Stolz’ Estate, 260 N.Y.S. 906, 145 Misc. 799. But while there can be no ”desertion" for divorce where parties are apart by consent, yet there may be an "abandonment" as respccts separate mainte-nance, although the separation originated and conlinued by consent of parties. Pierson v. Pierson, 189 A. 391, 395,15 N.J.Misc. 117. And as respects maintenance, husband’s conduct rendering wife’s condition unendurable constitutes "abandonment." Carder v. Carder, 227 Mo.App. 1005, 60 S.W.2d 706. Cruel treatment, Fallon v. Fallon, 111 N.T. Eq. 512, 162 A. 406, 408. Husband’s refusal of wife’s request to resume living with her, Clark v. Clark, 176 A. 81, 83, 13 N.J.Misc. 49; or refusal to receive wife at his residence, is an "abandonment" of her. Hockaday v. Hockaday, 182 La. 88, 161 So. 164. But not a husband’s removal from wife’s borne after wife had instituted sep-aration action, Kenneson v. Kenneson, 36 N.Y.S.2d 676, 685, 178 Misc. 832; or where husband moved out on command of wife’s father. Anonymous v. Anonymous, 24 N.Y.S.2d 613, 618. Mere failure to support wife is not an abandonment within Divorce Act. Biddle v. Biddle, 104 N.J.Eq. 313, 145 A. 639, 640; but failing to provide wife with necessitles, etc., is. Cooper v. Cooper, 176 Md. 695, 4 A.2d 714, 716. And convict sentenced for life did not abandon wife. In re Lindewall’s WIll, 18 N.Y.S.2d 281, 284, 259 App.Div. 196.
ABANDONMENT FOR TORTS. In the civil law. The relinquishment of a slave or animal who had committed a trespass to the person injured, in dis-charge of the owner’s liability for such trespass or injury. Just. Inst. 4, 8, 9. A similar right exists in Louisiana. Fitzgerald v. Ferguson, 11 La.Ann. 396
ABANDUN, ABANDUM, or ABANDONUM. Any-thing sequestered, proscribed, or abandoned. Abandon, i. e., in bannum res missa, a thing ban-ned or denounced as forfeited or lost, whence to abandon, desert, or forsake, as lost and gone. Cunningham; Cowell.
ABARNARE. Lat. To discover and disclose to a magistrate any secret crime. Leges Canuti, cap. 10.
ABATABLE NUISANCE. A nuisance which is practically susceptible of being suppressed, or ex-tinguished, or rendered harmless, and whose con-tinued existence is not authorized under the law. Fort Worth & Denver City Ry. Co. v. Muncy, Tex. Civ.App., 31 S.W.2d 491, 494.
ABATANLENTUM. L. Lat. In old English law. An abatement of freehold; an entry upon Lands by way of interposition between the death of the ancestor and the entry of the heir. Co. Litt. 277a; Yel. 151.
ABATARE. To abate. Yel. 151.
ABATE. To throw down, to beat down, destroy, quash. 3 Shars. Bla. Com. 168; Klamath Lum-ber Co. v. Bamber, 142 P. 359, 74 Or. 287. , To do away with or nullify or lessen or diminish, In re Stevens’ Estate, Cal.App., 150 P.2d 530, 534; to bring entirely down or demolish, to put an end to, to do away with, to nullify, to make void, Sparks Milling Co. v. Powell, 283 Ky. 669, 143 S.W.2d 75, 77.
See, also, Abatement; Abatement and RevIval.
ABATEMENT. A reduction, a decrease, or a diminution. The Vestris, D.C.N.Y., 53 F.2d 847, 852.
A judgment afforded a defense by way of abatement. Panos v. Great Western Packing Co., Cal.App., 126 P.2d 889, 892.
Contracts
A reduction made by the creditor for the prompt payment of a debt due by the payor or debtor. Wesk. Ins. 7.
Debts
In equity, when equitable assets are insufficient to satisfy fully all the creditors, their debts must abate in proportion, and they must be content with a dividend, for cequitas est quasi cequalitas.
Freehold
The unlawful entry upon and keeping posses-sion of an estate by a stranger, after the death of the ancestor and before the heir or devisee takes possession. Such an entry is techniCally called an "abatement," and the stranger an "aba-tor." It is, in fact, a figurative expression, de-noting that the rightful possession or freehold of the heir or devisee is overthroWn by the unlawful intervention of a stranger. Abatement differs from intrusion, in that it is always to the preju-dice of the heir or immediate devisee, whereas the latter is to the prejudice of the reversioner or remainder-man; and disseisin differs from them both, for to disseise is to put forcibly or fraudu-lently a person seised of the freehold out of pos-session. Brown v. Burdick, 25 Ohio St. 268. By the ancient laws of Normandy, this term was used to signify the act of one who, having an ap-parent right of possession to an estate, took pos-session of it immediately after the death of the actual possessor, before the heir entered. (How-ard, Anciennes Lois des Francais, tome 1, p. 539.)
Legacies
A proportional diminution or reduction of the pecuniary legacies, when the funds or assets out of which such legacies are payable are not suffi-cient to pay them in full. Ward, Leg. p. 369, c. 6, § 7; 1 Story, Eq. Jur. § 555; 2 Bl. Comm. 512, 513; In re ‘Hawgood’s Estate, 37 S.D. 565, 159 N.W. 117, 123. Legacy accepted in lieu of dower. In re Hartman’s Estate, 233 Iowa 405, 9 N.W.2d 359, 362.
Nuisance
The removal of a nuisance. 3 Bla. Comm. 5. See Nuisance.
Taxes and Duties
A drawback or rebate allowed in certain cases on the duties due on imported goods, in considera-tion of their deterioration or damage suffered during importation, or while in store. A diminu-tion or decrease in the amount of tax imposed upon any person. Rogers v. Gookin, 198 Mass. 434, 85 N.E. 405 (real estate taxes); Central Na-tional Bank v. City of Lynn, 156 N.E. 42 (Shares in national banks) 259 Mass. 1.
As applied to taxation, It presupposes error or mistake in assessment. Gulf States Steel Co. v. U. S., C.C.A.Ala., 56 F.2d 43, 46.
Abatement of taxes relieves property of its share of the burdens of taxation after the assessment has been tunde and the tax levied. Sheppard v. Hidalgo County, 126 Tex. 550, 83 S.W.2d 649, 657.
ABATEMENT AND REVIVAL
Actions at Law
As used in reference to actions at law, word abate means that action is utterly dead and can-not be revived except by commencing a new ac-tion. First Nat. Bank v. Board of Sup’rs of Harri-son County, 221 Iowa 348, 264 N.W. 281, 106 A.L.R. 566.
The overthrow of an action caused by the de-fendant’s pleading some matter of fact tending to impeach the correctness of the writ or declaration, which defeats the action for the present, but does not debar the plaintiff from recommencing it in a better way. 3 Bla. Comm. 301; 1 Chit. Pl. (6th Lond. Ed.) 446; Guild v. Richardson, 6 Pick. (Mass.) 370; Wirtele v. Grand Lodge A. O. U. W., 111 Neb. 302, 196 N.W. 510. See Plea in Abate-ment.
To put a final end to sult, Dodge v. Superior Court in and for Los Angeles County, 139 Cal.App. 178, 33 P.2d 695, 696; overthrow of pending action apart from cause of action, Burnand v. Irigoyen, 56 Cal.App.2d 624, 133 P.2d 3, 6.
On plaintiff’s death, Piukkula v. Pillsbury Astoria Flouring Milis Co., 150 Or. 304, 44 P.2d 162, 99 A.L.R. 259. Mere lapse of time between the death of a party and the taking of necessary steps to continue the action by or against the heir or personal representative does not work an abatement, Whaley v. Slater, 202 S.C. 182, 24 S.E.2d 266, 267.
Cause of Action
Destruction of cause of action. In re Thomas-son, Mo., 159 S.W.2d 626, 628.
Chancery Practico
It differs from an abatement at law in this: that in the latter the action is entirely dead and cannot be revived; but in the former the right to proceed is merely suspended, and may be revived; F. A. Mfg. Co. v. Hayden & Clemons, C.C.A.Mass., 273 F. 374; Mutual Ben. Health & Accident Ass’n v. Teal, D.C.S.C., 34 F.Supp. 714, 716.
In England, declinatory pleas to the jurisdiction and dilatory to the persons were (prior to the judicature act) sometimes, by analogy to common law, termed "picas in abatement."
Declinatory and dilatory pleas, see Story, Eq. Pl. § 708.
Death of one of parties, Geiger v. Merle, 360 III. 497, 196 N.E. 497, 502. Want of proper parties, 2 Tldd Pr. 932; Story, Eq.P1. § 354; Witt v. Ellis, 2 Cold., Tenw, 38; peti-tion for widow’s allowance, In re Samson’s Estate, 142 Neb. 556, 7 N.W.2d 60, 62, 144 A.L.R. 264.
ABATOR. In real property law, a stranger who, having no right of entry, contrives to get posses-sion of an estate of freehold, to the prejudice of the heir or devisee, before the latter can enter, alter the ancestor’s death. Litt. § 397. In the law of torts, one who abates, prostrates, or de-stroys a nuisance.
ABATUDA. Anything diminished. Moneta aba-tuda is money clipped or diminished in value. Cowell; Dufresne.
ABAVIA. Lat. In the civil law. A great-great-grandmother. Inst. 3, 6, 4; Dig. 38, 10, 1, 6; Bract. fol. 68b.
ABAVITA. A great-great-grandfather’s sister. Bract. fol. 68b. This is a misprint for abamita (q. v.). Burrill.
ABAVUNCULUS. Lat. In the civil law. A great-great-grandmother’s brother (avavice frater). Inst. 3, 6, 6; Dig. 38, 10, 3; Calvinus, Lex. Called avunculus maximus. Id. 38, 10, 10, 17. Called by Bracton and Fleta abauunculus inagnus. Bract. fol. 68b; Fleta, lib. 6, c. 2, § 19.
ABAVUS. Lat. In the civil law. A great-great-grandfather. Inst. 3, 6, 4; Dig. 38, 10, 1, 6; Bract. fol. 67a.
ABBACINARE. To blind by placing a burning basin or red-hot irons before the eye’s. A form of punishment in the Middle Ages. Also spelt abacinare. The modern Italian is spelt with two b’s, and means to blind. Abbacination. Blinding by placing burning basin or red-hot irons before the eyes. See Abbacinare.
ABBACY. The government of a religious house, and the revenues thereof, subject to an abbot, as a bishopric is to a bishop. Cowell. The rights and privileges of an abbot.
ABBEY. A monastery or nunnery for the use of an association of religious persons, having an ab-bot or abbess to preside over them.
ABBOT. A prelate in the 13th century who had had an immemorial right to sit in the national assembly. Taylor, Science of Jurispr. 287.
ABBOT, ABBAT. The spiritual superior or gover-nor of an abbey. Feminine, Abbess.
ABBREVIATE OF ADJUDICATION. In Scotch law. An abstract of the decree of adjudication, and of the Lands adjudged, with the amount of the debt. Adjudication is that diligente (execution) of the law by which the real estate of a debtor is adjudged to belong to his creditor in payment of a debt; and the abbreviate must be recorded in the register of adjudications
ABBREVIATIO PLACITORUM. An abstract of ancient judicial records, prior to the Year Books. See Steph. Pl. (7th Ed.) 410.
ABBREVIATIONS. Shortened conventional ex-pressions, employed as substitutes for names, phrases, dates, and the like, for the saving of space, of time in transcribing, etc. Abbott.
The abbreviations in common use in modern times con-sist of the initial letter or lettcrs, syllable or syllables, oí the word. Anciently, also, contractcd forms of words, obtained by the oniission of letters intermediate between the initial and final letters were much in use. These lat-ter forms are now more commonly designated by the term contraction.
For Table of Abbreviations, see Appendix.
ABBREVIATIONUM ILLE NUMERUS ET SEN-SUS ACCIPIENDUS EST, UT CONCESSIO NON SIT INANIS. In abbreviations, sudh number and sense is to be taken that the grant be not made void. 9 Coke, 48.
ABBREVIATORS. In ecclesiastical law. Officers whose duty it is to assist in drawing up the Pope’s briefs, and reducing petítions into proper form to be converted into papal bulls.
ABBROCHMENT, or ABBROACHMENT. The act of forestalling a market, by buying up at whole-sale the merchandise intended to be sold there, for the purpose of selling it at retail. See Fore-stalling the Market.
ABBUTTALS. See Abuttals.
ABDICATION. The act of a sovereign in re-nouncing and relinquishing his government or throne, so that either the throne is left entirely vacant, or is filled by a successor appointed or elected beforehand.
Also, where a magistrate or person in office voluntarily renounces or gives it up before the time of service has expired.
The act of abdicating; giving up of °ince, power or au-thority, right or trust; renunciation. McCormick v. Eng-strom, 119 Kan. 698, 241 P. 685, 6S8.
Abdication of rights to property may constitute an assignment. In re Johnston’s Estate, 186 Wis. 599, 203 N.W. 376, 377.
It dlffers from resignation, in that resignation is made by one who has received his office from another and restores it into his hands, as an inferior into the hands of a superior; abdication is the relinquishment of an office which has devolved by act of law. It is said to be a renunciation, quitting, and relinquishing, so as 1.0 have nothing further to do with, a thing, or the doing of such actions as are inconsistent with the holding of lt. Cham-bers.
ABDITORIUM. An abditory or hiding place, to hide and preserve goods, plate or money. Jacob.
ABDUCTION. In criminal law. The offense of taking away a wife, child, or ward, by fraud and persuasion, or open violence. 3 Bl.Comm. 139-141; State v. Chisenhall, 106 N.C. 676, 11 S.E. 518 (fe-male under 14) ; State v. Hopper, 186 N.C. 405, 119 S.E. 769, 772 (wife).
To take away surreptitiously by force in kid-napping. Doss v. State, 220 Ala. 30, 123 So. 231, 232, 68 A.L.R. 712.
The unlawful taking or detention of any female for purposes of marriage, concubinage, or prosti-tution. 4 Steph.Com. 84; People v. Crotty, 55 Hun, 611, 9 N.Y.S. 937. In many states this of-fense is created by statute and in most cases ap-plies to females under a given age.
By statute in some states, abduction includes the withdrawal of a husband from his wife, as where another woman alienates his affection and entices him away and causes him to abandon his wife. Humphrey v. Pope, 122 Cal. 253, 54 P. 847.
ABEARANCE. Behavior; as a recognizance to be of good abearance signifies to be of good be-havior. 4 Bl.Comm. 251, 256.
ABEREMURDER. (From Sax. abere, apparent, notorious; and mord, murder.) Plain or downright murder, as distinguished from the less heinous crime of manslaughter, or chance medley. Spelman; Cowell; Blount.
ABESSE. Lat. In the civil law. To be absent; to be away from a place. Said of a perso’n who was extra continentia urbis, (beyond the suburbs of the city.)
ABET. A French word combined of two words "a" and "beter"—to bait or excite an animal. It includes knowledge of the wrongful purpose of the perpetrator and counsel and encouragement in the crime. People v. Terman, 4 Cal.App.2d 345, 40 P.2d 915, 916.
To encourage, incite, or set another on to com-mit a crime. This+word is always applied to aid-ing the commission of a crime. To abet another to commit a murder is to command, procure, or counsel him to commit it, Old Nat. Brev. 21; Co.
Litt. 475; to command, procure, counsel, encour-age, induce, or assist, Short v. Commonwealth, 240 Ky. 477, 42 S.W.2d 696, 697; to encourage, counsel, induce, or assist, State v. Watts, Nev., 296 P. 26. Tú facilitate the commission of a crime, promote its accomplishment, or help in advancing or bring-ing it about. State v. Lord, 42 N.M. 638, 84 P.2d 80, 86. It includes knowledge of wrongful purpose of perpetrator. Daniels v. State, 58 Ga.App. 599, 199 S.E. 572, 577. State v. Kneedy, 232 Iowa 21, 3 N.W.2d 611, 615. People v. Stein, 55 Cal.App.2d 417, 130 P.2d 750, 751 (permitting wife to remain in house of prostitution).
See Abettor; Aid and Abet.
"Aid" and "abet" are nearly synonymous tercos as gen-erally used; but. strictly speaking, the formen terco does not Inmly guilty knowledge or felonious intent, whereas the ;vord "abet" includes knowledge of the wrongful pur-pose and counsel and encouragement in the commission of the crime. Forgcry, People v. Dole, 122 Cal. 486, 55 P. 581, 68 Am.St. Rep. 50; Raiford v. State, 59 Ala. 106; Violation of law• against free passes, State v. Ankrom, 86 W.Va. 570, 103 S.E. 925, 927; Crime against nature, State v. Start, 65 Or. 178, 132 P. 512, 513; Robbery, People v. Powers, 293 Ill. 600, 127 N.E 681, 682.
Instigate synonymous (malicious prosecution) Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494, 499.
"Abet" smacks more of technical terminology than does the word "aid", but it is almost synonymous with the word "aid". Assauit and battery, Gentry v. State, 65 Ga. App. 100, 15 S.E.2d 464, 465.
ABETTATOR. L. Lat. In old English law. An abettor. Fleta, lib. 2, c. 65, § 7. See Abettor.
ABETTOR. In criminal law. An instigator, or setter on; one who promotes or procures a crime to be committed. Old Nat.Brev. 21. One who commands, advises, instigates, or encourages an-other to commit a crime; a person who, being present or in the neighborhood, incites another to commit a crime, and thus becomes a principal. See State v. Baldwin, 193 N.C. 566, 137 S.E. 590, 591.
Must have rendered assistance or encouragement to the perpetrator of the crime with knowledge of his felonious intent; offense of "aiding and abetting" being committed by person present who does some act or speaks some word aiding the actual perpetrator of the crime. emulas v. Commonwealth, 224 Ky. 653, 6 S.W.2d 1082, 1083. Must
ABETTOR
aid or commit some overt act or act of encouragement. Long v. Commonwealth, 288 Ky. 83, 155 S.W.2d 246, 247. One who so far participates in the commission of the offense as to be present for the purpose of assisting if necessary. State v. Epps, 213 N.C. 709, 197 S.E. 580, 583.
The distinction between abettors and accessories is the presence or absence at the commission of the crime. Cowell; Fleta, lib. 1, c. 34. Presence and participation are necessary to constitute a person an abettor. 4 Sharsw.Bla. Comm. 33; Bradley v. Commonwealth, 201 Ky. 413, 257 S. W. 11, 13. Common design to take lile not necessary. State v. Lord, 42 N.M. 638, 84 P.2d 80, 86. Not essential that there should be a prearrangement or mutual under-standing or concert of action. McKinney v. Common-wealth, 284 Ky. 16, 143 S.W.2d 745, 747, 748.
ABEYANCE. In the law of estates. In expecta-tion, remembrance, and contemplation of law; the condition of a freehold when there is no per-son in being in whom it is vested.
In such cases the freehold has been said to be in nubibus (in the clouds), McKown v. McKown, 93 W.Va. 689, 117 S.E. 557, 559; in pendenti (in suspension); and i11, gremio legis (in the bosom of the law). Where there Is a tenant of the freehold, the remainder or reversion in fee may exlst for a time without any particular owner, in which case it is said to be in abeyance; Lyle v. Richards, 9 S. & R. Pa. 367; 3 Plowd. 29 a, b, 35 a; 1 Washb.R.P. 47.
Franchise of a corporation; Trustees of Dartmouth College v. Woodward, 4 Wheat. (U. S.) 691, 4 L.Ed. 629. Personal property as in case of a vessel captured at sea from its captors until it becomes invested with the char-acter of a prize; 1 Kent, 102; 1 C.Rob.Adm. 139; 3 id. 97, n.; or the rights of property. of a bankrupt, pending adjudication; Bank v. Sherman, 101. U.S. 403, 25 L.Ed. 866.
A condition of being undetermined. Fenn v. American Rattan & Reed Mfg. Co., 75 Ind.App. 146, 130 N.E. 129, 130. (Seller stating its inability to promise to deliver.)
Sales to third parties, of property acquired by county at tax sale, being held in "abeyance", means that certain rights or conditions are in expectancy. Willard v. Ward County, 72 N.D. 291, 6 N.W.2d 566, 568.
ABIATICUS, or AVIATICUS. L. Lat. In feudal law. A son’s son; a grandson in the male line. Du Cange, Avius; Spelman; Lib.Feud., Baraterii, tit. 8, cited Id.
ABIDE. To accept the consequences of; to rest satisfied with; to wait for.
With reference to an order, judgment, or decree of a court, to perform, to execute. Jackson v. State, 30 Kan. 88, 1. P. 317. Where a statute provides for a recognizance "to abide the judgment of the court," one conditioned "to await the action of the court" is not sufficient; Wilson v. State, 7 Tex.App. 38. Defendant does not "abide the judgment" until costs of appeal are paid. Ex parte Til-lery, 22 Ala.App. 193, 114 So. 15. And see State v. Greg-ory, 205 Iowa, 707, 216 N.W. 17, 19.
Defendant’s presence in courtroom not a compliance with supersedeas bond conditioned to "abide final judg-ment," where there was no formal offer to surrender defendant into court’s custody. American Surety Co. of New York v. State, 50 Ga.App. 777, 179 S.E. 407.
To abide and satisfy is used to express the execution or performance of a judgment or order by carrying it into complete effect, Erickson v. Elder, 34 Minn. 371, 25 N.W. 804, Cf. Woolfolk v. Jones, D.C.Va., 216 F. 807, 809.
Where costs are to abide final result, "abide" is synon-ymous with conform to. Getz v. Johnston, 145 Md. 426, 125 A. 689, 691.
To abide order respecting seized property, means to per-form, obey, conform to. Cantor v. Sachs, 18 Del.Ch. 359, 162 A. 73, 84.
ABIDING BY. In Scotch law. A judicial declara-tion that the party abides by the deed on whichhe founds, in an action where the deed or writing is attacked as forged. Pat.Comp.. It has the ef-fect of pledging the party to stand the conse-quences of founding on a forged deed. Ball.
"Abide by" means to adhere to, to submit to, to obey, to accept the consequences of. Detroit Fidelity & Surety Co. v. U. S., C.C.A.Ohio, 36 F.2d 682, 683. (Recognizance)
To abide by an award means to await the award with-out revoking the submission. It does not mean to "acqui-esce in" or "not dispute." in the sense of not being at liberty to contest the validity of the award when made, Hunt v. Wilson. 6 N.II. 36; Quimby v. Melvin, 35 N.H. 198; Weeks v. Trask, 81 Me. 127, 16 A. 413, 2 L.R.A. 532.
ABIDING CONVICTION. A definite conviction of guilt derived from a thorough examination of the whole case. Hopt v. Utah, 7 S.Ct. 614, 120 U.S. 439, 30 L.Ed. 708. A settled or fixed conviction. Davis v. State, 8 Ala.App. 147, 62 So. 1027, 1033. People v. Castro, 68 Cal.App.2d 491, 157 P.2d 25, 30.
ABIDING FAITH. Belief or confidente in the guilt of one accused of crime which refnains or continuas in the minds of the jury. Gray v. State. 56 Okl.Cr. 208, 38 P.2d 967, 970.
ABIGEATORES. See Abigeus.
ABIGEATUS. Lat. In the civil law. The offense of stealing or driving away cattle. See Abigeus.
ABIGEI. See Abigeus.
ABIGERE. Lat. In the civil law. To drive away. Applied to those who drove away animals with the intention of stealing them. Applied, also, to the similar offense of cattle stealing on the borders between England and Scotland. See Abigeus.
To drive out; to expel by force; to produce abortion. Dig. 47, 11, 4.
ABIGEUS. Lat. (P1., abigei, or more rarely abigeatores.) In the civil law. A stealer of cat-tle; one who drove or drew away (subtraxit) cattle from their pastures, as horses or oxen from the herds, and made booty of them, and who fol-lowed this as a business or trade.
The term was applied also to those who drove away the smaller animals, as swine, sheep, and goats. In the latter case, it depended on the number taken, whether the offender was fur (a common thief) or abigeus. But the taking of a single horse or ox seems to have constituted the crime of abigeatus. And those who frcquently did this were clearly abigei, though they took but an animal or two at a time. Dig. 47, 14, 3, 2. See Cod. 9, 37; Nov. 22, c. 15, § 1; 4 Bl.Comm. 239.
ABILITY. When the word is used in .statutes, it is usually construed as referring to pecuniary ability, as in the construction of Tenterden’s Act (q. v.); 1M. &W. 101.
Contemplates earning capacity as well as property actu-ally owned, to support abandoned wife; State v. Witham, 70 Wis. 473, 35 N.W. 934, Contra, Washburn v. Washburn, 9 Cal. 475.
The ability to buy, required in a purchaser as a condi-tion to the broker’s right to a commission, is the financial
he founds, in an action where the deed or writing is attacked as forged. Pat.Comp.. It has the ef-fect of pledging the party to stand the conse-quences of founding on a forged deed. Ball.
"Abide by" means to adhere to, to submit to, to obey, to accept the consequences of. Detroit Fidelity & Surety Co. v. U. S., C.C.A.Ohio, 36 F.2d 682, 683. (Recognizance)
To abide by an award means to await the award with-out revoking the submission. It does not mean to "acqui-esce in" or "not dispute." in the sense of not being at liberty to contest the validity of the award when made, Hunt v. Wilson. 6 N.II. 36; Quimby v. Melvin, 35 N.H. 198; Weeks v. Trask, 81 Me. 127, 16 A. 413, 2 L.R.A. 532.
ABIDING CONVICTION. A definite conviction of guilt derived from a thorough examination of the whole case. Hopt v. Utah, 7 S.Ct. 614, 120 U.S. 439, 30 L.Ed. 708. A settled or fixed conviction. Davis v. State, 8 Ala.App. 147, 62 So. 1027, 1033. People v. Castro, 68 Cal.App.2d 491, 157 P.2d 25, 30.
ABIDING FAITH. Belief or confidente in the guilt of one accused of crime which refnains or continuas in the minds of the jury. Gray v. State. 56 Okl.Cr. 208, 38 P.2d 967, 970.
ABIGEATORES. See Abigeus.
ABIGEATUS. Lat. In the civil law. The offense of stealing or driving away cattle. See Abigeus.
ABIGEI. See Abigeus
ABIGERE. Lat. In the civil law. To drive away. Applied to those who drove away animals with the intention of stealing them. Applied, also, to the similar offense of cattle stealing on the borders between England and Scotland. See Abigeus.
To drive out; to expel by force; to produce abortion. Dig. 47, 11, 4.
ABIGEUS. Lat. (P1., abigei, or more rarely abigeatores.) In the civil law. A stealer of cat-tle; one who drove or drew away (subtraxit) cattle from their pastures, as horses or oxen from the herds, and made booty of them, and who fol-lowed this as a business or trade.
The term was applied also to those who drove away the smaller animals, as swine, sheep, and goats. In the latter case, it depended on the number taken, whether the offender was fur (a common thief) or abigeus. But the taking of a single horse or ox seems to have constituted the crime of abigeatus. And those who frcquently did this were clearly abigei, though they took but an animal or two at a time. Dig. 47, 14, 3, 2. See Cod. 9, 37; Nov. 22, c. 15, § 1; 4 Bl.Comm. 239.
ABILITY. When the word is used in .statutes, it is usually construed as referring to pecuniary ability, as in the construction of Tenterden’s Act (q. v.); 1M. &W. 101.
Contemplates earning capacity as well as property actu-ally owned, to support abandoned wife; State v. Witham, 70 Wis. 473, 35 N.W. 934, Contra, Washburn v. Washburn, 9 Cal. 475.
The ability to buy, required in a purchaser as a condi-tion to the broker’s right to a commission, is the financial
ability to meet the required tcrms of the sale, and does not mean solvency or ability to respond in damages for a breách of the contract. Stewart v. Sisk, 29 Ga.App. 17, 114 S.E. 71. See Able to Purchase.
A voter’s "ability to read" within meaning of election statutes is satisfled if he can .read in a reasonably intelli-gent manner sentences composed of words in common use and of average difficulty, although each word may not be always accurately pronounced, and "ability to write" is satisfled if he can by use of alphabetical signs express in a fairly legible way words of common use and average difil-culty, though each word may not be accurately spelled. Williams v. Hays, 175 Ky. 170, 193 S.W. 1046, 1047. But the mere ability to write one’s name and post office address, and nothing more, 1s insufficient. Murrel v. Allen, 180 Ky. 604, 203 S.W. 313, 314.
ABISHERING, or ABISHERSING. Quit of amercements. It originally signified a forfeiture or amercement, and is more properly mishering, mishersing, or miskering, according to Spelman. It has since been termed a liberty of freedom, be-cause, wherever this word is used in a grant, the persons to whom the grant is made have the for-feitures and amercements of all others, and are themselves free from the control of any within their fee. Termes de la. Ley, 7.
ABJUDICATIO. In old English law. The depriv-ing of a thing by the judgment of a court; a putting out of court; the same as forisjudicatio, forjudgment, forjudger. Co.Litt. 100a, b; Townsh. Pl. 49. A removal from court. Calvinus, Lex.
Used to indicate an adverse decision in a writ of right: Thus, the land is said to be abjudged from one of the parties and his heirs. 2 Poll. & Maiti. 62.
ABJURATION. A renunciation or abandonment by or upon oath.
The oath by which any person holding office in England was formerly obliged to bind himself not to ac.knowledge any right in the Pretender to the throne of England; 1 Bla.Com. 368; 13 and 14 W. III, c. 6, repealed by 30 and 31 Vic. c. 59.
It also denotes an oath abjuring certain doctrines of the church of Reme.
ABJURATION OF ALLEGIANCE. A naturalized citizen of the United States, must declare that he doth renounce and abjure all allegiance and fideli-ty which he owes to any foreign prince, state, etc. 8 U.S.C.A. § 735.
ABJURATION OF THE REALM. In ancient English law. A renunciation of one’s country, a species of self-imposed banishment, under an oath never to return to the kingdom unless by permis-sion. 4 Bl.Comm. 332; Avery v. Everett, 110 N.Y. 317, 18 N.E. 148, 1 L.R.A. 264. See Abjure.
ABJURE. To renounce, or abandon, by or upon oath. See Abjuration.
A departure from the state without the intention of returning, and not a renunciation of one’s country, upon an oath of perpetual banishment, as the term originally implied. Mead v. IIughes, 15 Ala. 148, 1 Am.P,ep. 123.
ABLE-BODIED. As used in a statute relating to service in the militia, this term does not imply an
absolute freedom from all physical ailment. It imports an absence of those palpable and visible defects which evidently incapacitate the person from performing the ordinary duties of a soldier. Darling v. Bowen, 10 Vt. 152. Ability to perform ordinary labor is not the test. Town of Marl-borough v. Sisson, 26 Conn. 57.
ABLE SEAMAN. A grade of merchant seamen. 46 U.S.C.A. § 672.
ABLE TO EARN. The phrase in the Workmen’s Compensation Act in reference to wages does not mean the maximum sum earned in ány one week, but a fair average of the weekly wages which employee is able to earn covering a sufficient period of time to determine his earning capacity. Reeves v. Dietz, 1 La.App. 501, 505. See also, Mt. Olive & Staunton Coal Co. v. Industrial Commis-sion, 301 III. 521, 134 N.E. 16. Amount one is capable of earning if employed. Ferrara v. Clif-ton Wright Hat Co., 125 Conn. 140, 3 A.2d 842, 843.
Ability to obtain and bold employment means that the person referred to is either able or unable to perform the usual duties of whatever employment may be under con-sideration, in the manner that such duties are customarily performed by the average person engaged in such employ-ment. Kinyon v. Kinyon, 230 Mo.App. 623, 71 S.W.2d 78, 82.
ABLE TO PURCHASE "Ability" in sales con-tracts, dependent on ability to purchase, usually means financial ability. Anderson v. Craig, 111 Mont. 182, 108 P.2d 205, 206; House v. Hamburg, Sup., 39 ‘N.Y.S.2d 20, 22. Purchaser must have financial ability and legal capacity to acquire land. Campbell v. Hood, Tex.Com.App., 35 S.W.2d 93, 95, 85 A.L.R. 266.
Purchaser la able to purchase, as respects broker’s right to commission, if he is financially able to command the necessary funds to Glose the deal within the time required. Hersh v. Garau, 218 Cal. 460, 23 P.2d 1022. Even though part of the money must be obtained on the purchased property itself. Pellaton v. Brunski, 69 Cal. App. 301, 231 P. 583, 584. But see Bateman v. Richard, 105 OId. 272, 232 P. 443, 445; and Reynor v. Mackrill, 181 Iowa 210, 164 N.W. 335, 1 A.L.R. 523, holding that a person, to be able to purchase, must have the money for the cash payment, and not merely property on which he could raise it. See, aleo, Peters v. Mullins, 211 Ky. 123, 277 S.W. 316, 317. See Financially Able.
ABLEGATI. Papal ambassadors of the second rank, who are sent to a country where there is not a nuncio, with a less extensive commission than that of a nuncio. This title is equivalent to envoy.
ABLOCATIO. A letting out to hire, or leasing for money. Calvin. Sometimes used in the English form "ablocation."
ABMATERTERA. Lat. In the civil law. A great-great-grandmother’s sister, (abaviw soror). Inst. 3, 6, 6; Dig. 38, 10, 3. Called matertera maxima. Id. 38, 10, 10, 17. Called, by Bracton, abmatertera magna. Bract. fol. 68b.
ABNEPOS. Lat. A great-great-grandson. The grandson of a grandson or granddaughter. Cal-vinus, Lex
ABNEPTIS. Lat. A great-great-granddaughter. The granddaughter of a grandson or granddaugh-ter. Calvinus, Lex.
ABODE. One’s home; habitation; place of dwell-ing; or residence. Ordinarily means "domicile." Hanson v. Williams, 170 Ga. 779, 154 S.E. 240, 242. Living place impermanent in character. Fowler v. Fowler, 156 Fla. ¿16, 22 So.2d 817, 818. Evans v. Evans, 141 Fla. 860, 194 So. 215, 217. The place where a person dwells. Dorsey v. Brigham, 177 Ill. 250, 52 N.E. 303, In re Erickson, 18 N.J.Misc. 5, 10 A.2d 142, 146.
Residence of a legal voter. Fry’s Election Case, 71 Pa. 302, 10 Am.Rep. 698; Dale v. Irwin. 78 III. 181; Pope v. Board of Election Com’rs, 370 III. 196, 18 N.E.2d 214, 216. Fixed place of residence for the time being. Augustus Co., for Use of Bourgeois v. Manzella, 19 N.J.Misc. 29, 17 A.2d 68, 70; Hudson v. Birmingham Water Works Co., 238 Ala. 38, 189 So. 72, 73. For service of process, one’s fixed place of residence for the time being. State ex rel. Mer-ritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147; Kurilla v. Roth, 132 N.J.L. 213, 38 A.2d 862, 864.
ABOGADO. Sp. An advocate. See Bozero.
ABOLISII. To do away with wholly; to annul. Webster. To dispense with. Alexander v. City of Lampasas, Tex.Civ.App., 275 S.W. 614, 616. Put an end to. Stretch v. Murphy, 166 Or. 439, 112 P. 2d 1018, 1021.
Imports absolute destruction, having its root in the Latin word "abolere," meaning to destroy utterly. Applies particularly to things of a permanent nature, such as institutions, usages, customs, as the abolition of slavery. Pondelick v. Passaic County, 111 N.J.Law 187, 168 A. 146, 147.
ABOLITION. The destruction, annihilation, abro-gation, or extinguishment of anything. Peterson v. Pratt, 183 Iowa 462, 167 N.W. 101. Also the leave given by the sovereign or judges to a crim-inal accuser to desist from further prosecution. 25 Hen. VIII, c. 21.
In the Civil, French and German law, abolition is used nearly synonymously with pardon, remission, grace. Dig. 39, 4, 3, 3. There is, however, this difference: grace is the generic term; pardon, according to those laws, is the clemency which the prince extends to a man who has par-ticipated in a crime, without being a principal or accom-plice; remission is made in cases of involuntary homicides, and self-defence. Abolition is used when the crime can-not be remitted. The prince then may, by letters of aboli-tion, remit the punishment, but the infamy remains, un-less letters of abolition have been obtained before sentence. Encycl. de D’Alembert.
Abolition of position or office, Rexstrew v. City of Hunt-ington Park, Cal.App., 120 P.2d 136, 142. Positions of phy-sicians and dentists, Lewin v. La Guardia, 22 N.Y.S.2d 409, 411, 175 Misc. 165. Lay-off of court attendant, Pondelick v. Passaic County, 111. N.J.L. 187, 168 A. 146, 147. Trans-fer not an abolition of office, Tremp v. Patten, 132 Conn. 120, 42 A.2d 834, 837.
ABORDAGE. Fr. In French commercial law. Collision of vessels.
ABORTIFACIENT. In medical jurisprudence. A drug or medicine capable of, or used for, produc-ing abortion.
ABORTION. The expulsion of the fcetus at a pe-riod of utero-gestation so early that it has not acquired the power of sustaining an independent
life. The unlawful destruction, or the bringing forth prematurely, of the human fcetus before the natural time of birth; State of Magnell, 51 A. 606, 3 Pennewill (Del.) 307. The act of bringing forth what is yet imperfect. Also the thing prez maturely brought forth, or product of an untimely process. Sometimes loosely used for the offense of procuring a premature delivery; but strictly, the early delivering is the abortion; causing or procuring, abortion is the full name of the offense. Wells v. New England Mut. L. Ins. Co., 191 Pa. 207, 43 A. 126, 53 L.R.A. 327.
Criminal miscarriage, Commonwealth v. Sierakowskt, 154 Pa.Super. 321, 35 A.2d 790, 792; Mississippi State Board of Health v. Johnson, 197 Miss. 417, 19 So.2d 445, 448. "Abortion" and a "miscarriage produced by unlawful means" are synonymous, People v. Luckett, 23 Cal.App.2d 539, 73 P.2d 658, 659.
ABORTIONIST. One who criminally produces abortions, or one who follows business or prac-tices of crime of producing abortions. State v. Guaraneri, 59 R.I. 173, 194 A. 589, 592, 593.
ABORTIVE TRIAL. A term descriptive of the result when a case has gone off, and no verdict has been pronounced, without the fault, contri-vance, or management of the parties. Jebb & B. 51.
ABORTUS. Lat. The fruit of an abortion; the child born before its time, incapable of life.
ABOUT. Near in time, quantity, number, quality, or degree. Substantially, approximately, almost, or nearly. Odom v. Langston, 351 Mo. 609, 173 S.W.2d 826, 829. Testimony as to speed, Casto v. Hansen, 123 Or. 20, 261 P. 428, 429. Near, period of gestation of still born child, Life & Casualty Ins. Co. v. Walters, 190 Miss. 761, 198 So. 746, 748; Todd v. City of New York, City Ct., N.Y. 23 N.Y.S.2d 884, 888. Carrying burglar’s tools in suitcase, Trousdale v. State, 168 Tenn. 210, 76 S.W. 2d 646, 647. Near the time. State ex rel. Nagle v. Leader Co., 97 Mont. 586, 37 P.2d 561, 564.
When used with reference to time, the term is of flexible significance, varying with the circumstances and the con-nection in which it is employed. Burlington Grocery Co. v. Heaphy’s Estate, 98 Vt. 122, 126 A. 525, 528. But its use does not necessarily render time Immaterial, nor make a contract one terminable at will. Costello v. Siems-Carey Co., 140 Minn. 208, 167 N.W. 551, 552. In a charter party, "about to sail" means just ready to sail. [1893] 2 Q.B. 274. And when it is said that one is "about" to board a street car, it means "in the act of." Fox v. Denver City Tramway Co., 57 Colo. 511, 143 P. 278, 280. With relation to quantity, the term suggests only an estimate of protlable amount. Barkemeyer Grain & Seed Co. v. Hannant, 66 Mont. 120, 213 P. 208, 210. Its import is that the actual quantity is a near approximation to that mentioned, and it has the effect of providing against accidental varia-tions. Norrington v. Wright, 6 S.Ct. 12, 115 U.S. 188, 29 L.Ed. 366. It may be given practically the same effect as the phrase more or less. Pierce v. Miller, 107 Neb. 851, 187 N.W. 105, 107; Cargo under vessel charter, Steamship Co. of 1912 v. C. H. Pearson & Son Hardwood Co., C.C.A. N.Y., 30 F.2d 770, 773. Contract for sale of electric energy, Merced Irr. Dist. v. San Joaquin Light & Power Corpora-tion, 101 Cal.App. 153, 281 P. 415, 417. In a deed covers some slight or unimportant Inaccuracy. Parrow v. Proulx, 111 Vt. 274, 15 A.2d 835, 838. Synonymous with "on" or ‘upan," as in offense of carrying concealed weapons. State v. Brunson, 162 La. 902, 111 So. 321, 323; Carriage of a pistol or revolver in a grip, satchel, or hand bag held in the hand or connected with the person, State v. Blazo-vitch, 88 W.Va. 612, 107 S.E. 291, or on the running board of an automobile, Armstrong v. State, 98 Tex.Cr.R. 335, 265 S.W. 701. Paulk v. State, 97 Tex.Cr.R. 415, 261 S.W. 779, 780. Near by, close at hand, convenient of access. Welch v. State, 97 Tex.Cr.R. 617, 262 S.W. 485; Brown v. U. S., 30 F.2d 474, 475, 58 App.D.C. 311. Weapon on shelf lmmediately behind defendant, who was seated in coupé type automobile. Hampton v. Cornmonwealth, 257 Ky. 626, 78 S.W.2d 748, 750. As to number, it merely implies an estimate of a particular lot or class and not a warranty. Holland v. Rock, 50 Nev. 340, 259 P. 415. In connection with distance or Iocality, the term is of relative signifi-cante, varying with the circumstances. Parker v. Town of Pittsfield, 88 Vt. 155, 92 A. 24, 26. Employee on an ele-vator is "about the premises". Lienau v. Northwestern Telephone Exch. Co., 151 Minn. 258, 186 N.W. 945, 946. Workman 200 feet from a factory was "about" the factory. Wise v. Central Dalry Co., 121 Kan. 258, 246 P. 501, 503. An automobile mechanlc injured 1711, blocks from the em-ployers’ shop while making a road test of an automobile is not, Injured on, in, or about the employers’ place of business. Iott v. Mosby, 126 Kan. 294, 268 P. 109. "About" in lease meaning in other parts of building. William A. Doe Co. v. City of Boston, 262 Mass. 458, 160 N.E. 262. Estímate of distance, Picharella v. Ovens Transfer Co., 135 Pa. Super. 112, 5 A.2d 408, 409. Estimate as to time, char-ter of vessel, Britain S. S. Co. v. Munson S. S. Line. D.C. N.Y., 25 F.2d 868, 869. Instruction regarding specilied date, State v. Loahmann, Mo., 58 S.W.2d 309, 311. Courses and distantes, Humble Oil & Refining Co. v. Luther, Tex. Civ.App., 40 S.W.2d 865, 867. Pistol under automobile seat. Commonwealth v. Nunnelley, 56 S.W.2d 689, 247 Ky. 109, 88 A.L.R. 805.
ABOUTISSEMENT. Fr. An abuttal or abutment. See Guyot, Répert. Univ. "Aboutissans."
ABOVE. Higher; superior. As, court aboye, plain-tiff or defendant aboye. Aboye 01 incumbrances means in excess thereof; Williams v. McDonald, 42 N.J.Eq. 395, 7 A. 886. Principal; as distin-guished from what is auxiliary or instrumental. 3 Bl.Comm. 291.
Ball to the action, or special ball, is otherwise termed ball aboye. 3 BI.Comm. 291. Jurisdiction "aboye" the ju-risdiction of justices of the peace. Synonymous with "without." Atlantic Coast Line R. Co. v. Nellwood Lum-ber Co., 21 Ga.App. 209, 94 S.E. 86, 87. Aboye high water means aboye a tide which might rcasonably be expected to recur with some degree of frequency. Banks v. Wilming-ton Terminal Co., Del,Super., 24 A.2d 592, 598, 599, 601, 602, 2 Terry 489.
ABOVE CITED, or MENTIONED. Quoted be-fore. A figurativa expression taken from the ancient manner of writing books on scrolls, where whatever is mentioned or cited before in the same roll inust be aboye. Encyc. Lond.
ABPATRUUS. Lat. A great-great-uncle; or, a great-great-grandfather’s brother (abavi frater). Inst. 3, 6, 6; Dig. 38, 10, 3; Du Cange, Patruus. Called by Bracton and Fleta, abpatruus magnos. Bract. fol. 68b; Fleta, lib. 6, c. 2, § 17. It some-times means uncle, and sometimes great-uncle.
ABRIDGE. To reduce or contract; usually spoken of written language.
Copyright Law
To epitomize; to reduce; to contract. It im-plies preserving the substance, the essence, of a work, in language suited to such a purpose. In making extracts there is no condensation of the author’s language, and hence no• abridgment. To
abridge requires the exercise of the mind; it is not copying. Between a compilation and an abridgment there is a clear distinction. A compila-tion consists of selected extracts from different authors; an abridgment is a condensation of the views of one author. Story v. Holcombe, 4 Mc-Lean, 306, 310, Fed.Cas.No.13,497.
Practice
To shorten a declaration or count by taking away or severing some of the substance of it. Brooke, Abr., Com., Dig. Abridgment; 1 Viner, Abr. 109. See Abridgment.
ABRIDGMENT. Condensation; contraction. An epitome or compendium of another and larger work, wherein the principal ideas of the larger work are summarily contained.
Abrldgments of the law are hrief digests of the law. arranged alphabetically. (1 Stoph.Comm. 51.) The term "digest" has now supplanted that of "abridgment." Sweet.
ABRIDGMENT OF DAMAGES. The right of the court to reduce the damages in certain cases. Vide Brooke, tit. "Abridgment."
ABROAD. In English chancery law, beyond the seas.
ABROGATE. To annul, repeal, or destroy; to annul or repeal an order or rule issued by a sub-ordinate authority; to repeal a former law by legislative act, or by usage.
ABROGATION. The destruction or annulling of a former law, by an act of the legislative power, by constitutional authority, or by usage.
It stands opposed to rogation; and is distinguished from derogation, which implies the taking away only some part of a law; from subrogation, which denotes the adding a clause to it; from dispensation, which only sets it aside in a particular instance; and from antiquation, which is the refusing to pass a law. Encyc. Lond. Implied abrogation takes place when the new law contains provisions which are positively contrary -to former laws, without expressly abrogating such laws. Bernard v. Vignaud, 10 Mart.O.S. La. 560; and also when the order of things for which the law has been made no longer exists. See Ex parte Lum Poy, D.C., 23 F.2d 690.
For "Express Abrogation," see that title.
ABSCOND. To go in a clandestine manner out of the jurisdiction of the courts, or to lie con-cealed, in order to avoid their process. Malvin v. Christoph, 54 Iowa, 562, 7 N.W. 6. To hide, con-ceal, or absent oneself clandestinely, with the in-tent to avoid legal process. Smith v. Johnson, 43 Neb. 754, 62 N.W. 217. Postponing limitations. Keck v. Pickens, 207 Ark. 757, 182 S.W.2d 873, 875. Fleeing from arresVong or prosecuting officers of this state. Code Cr.Proc. art. 8. State v. Berry-hill, 188 La. 549, 177 So. 663.
ABSCONDING DEBTOR. One who absconds from his creditors.
An absconding debtor Is one who lives without the state, or who has lntentionally concealed himself from his credi-tors, or withdrawn himself from the reach of their suits, with intent to frustrate their just demands. Thus, if a person departs from his usual residence, or remains absent therefrom, or conceals himself in his house, so that he can-not be servcd with process, with intent unlawfully to de-lay or defraud his creditors, he is an absconding debtor; but If he departs from the state or from his usual abode, with the intention of again returning, and without any fraudulent design, he has not absconded, nor absented hlmself, within the intendment of the law. Doughnut Corporation of America v. Tsakirides, 121 N.J.L. 136, 1 A.2d 467, 469. A party may abscond, and subject himself to the operation of the attachment law against absconding debtors, without leaving the limits of the state. Field v. Adreon. 7 111d. 209. A debtor who is shut up from his creditors in his own house is an absconding debtor. Ives v. Curtiss, 2 Root (Conn.) 133. Salzman v. Robinson, 10 N.J.Misc.R. 51, 157 A. 547, 548.
ABSENCE. The state of being absent, removed, or away from one’s domicile, or usual place of residence. Maley v. Pennsylvania R. Co., 258 Pa. 73, 101 A. 911. Not present at particular time, op-posite of appearance at a specified time. Hamil-ton v. Bernstein, 133 Kan. 229, 299 P. 581.
Absence is of a fivefold kind: (1) A necessary absence, as in banished or transported persons; this is cntirely nec-essary. (2) Necessary and aoluntary, as upon the account of the commonwealth, or in the service of the church. (3)
A probable absence, according to the civilians, as that of students on the score of study. (4) Entirely volanlary, on account of trade, merchandise, and the like. (5) Absence cuna dolo et culpé, as not appcaring to a writ, subluena, citation, etc., or to delay or defeat creditors. or avoiding arrest, either on civil or criminal process. Ayliffe. Non-appearance to action, not rnerely that the party was not present In court vacating judgment. Strine v. Kaufman, 12 Neb. 423, 11 N.W. 867. In usual and natural signili-cation, means physical absence. Inhabitants of Lanes-borough v. Inhabitants of Ludlow, 250 Mass. 99, 145 N.E. 57, 58. Nonpresence. of ollicial for service. Kurre v. American Indemnity Co. of Galveston, Tex., 223 Mo.App. 406, 17 S.W.2d 685, 688.
Presumption of Death Created
Intent to establish home at place last heard from not required. American Nat. Ins. Co. v. García, Tex.Civ.App., 46 S.W.2d 1011, 1012. Away from a place to which one is expected to return. Woodmen of the World Life Ins. Soc. v. Cooper, Tex.Civ.App., 164 S.W.2d 729, 731.
In Scotch Law, want or default of appearance. A.clecree is said to be in absence where the defender (defendant) does not appear. Ersk. Inst. bk. 4, tit. 3, § 6.
ABSENT. Being away from; at a distance from; not in company with.
Paine v. Drew, 44 N.H. 306, where ft was held that the word when used as an adjective referred only to the con-dition or situation of the person or thing spoken of at the time of speaking without reference to any prior con-dition or situation of the same person or thing, but when used as a verb implies prior presence. It has also been held to mean "not being in a particular place at the time referred to," and not to import prior presence. The term abscnt defendants does not embroco non-resident defend-ants but has reference to parties resident in the state, but temporarily absent therefrom. Wheeler v. Wheeler, 35 III. App. 123. See, however, Seimer v. James ‘Dickinson Farm Mortg. Co., D.C.I11., 299 F. 651, 658, holding that a foreign corporation is "absent" from the state, and limitation does not run in its favor. Commonwealth’s attorney is "absent" when disqualified or disabled from performing functions of ofilce. Northcutt v. Howard, 279 Ky. 219. 130 S.W.2d 70, 71, 72. A judge, disqualified to act. Dark Tohacco Growers’ Co-op. Ass’n v. Wilson, 206 Ky. 550. 267 S.W. 1092, 1093. A deceased stockholder employee is not "ab-sent" from duty, as respects sharing of profits, etc. Nich-ols v. Olympia Vencer Co., 135 Wash. S, 236 P. 791, 796. Nonresident with oflice in state is not absent from state. Corash v. Texas Co., 35 N.Y.S.2d 334, 340, 264 App.Div..292.
As a verb, "absent" means to take or withdraw to such a distance as te prevent intercourse; to depart from. People v. Day, 321 III. 552, 152 N.E. 495, 497.
ÁBSENT—MINDEDNESS. A state of mind in which the person affected fails to respond to the ordinary demands on his attention. Webster. See Racine Tire Co. v. Grady, 205 Ala. 423, 88 So. 337.
ABSENTE. Lat. Being absent; often used in the old reports of one of the judges not present at the hearing of a cause. 2 Mod. 14. Absente Reo, The defendant being absent.
ABSENTEE. One who dwells abroad; a land-lord who resides in a country other than that from which he draws his rents. McCul. Pol. Econ.; 33 Brit. Quar. Rev. 455. One who is ab-sent from his usual place of residence or domicile.
Foreign corporations, not filing declarations of domicile ami names of agents. Palmer v. Avalon Oil Co., 10 La. App. 512, 120 So. 781, 782. In Louisiana law, one who has left his residence in a state leaving no one to represent him. Bartlett v. Wheeler, 31 La.Ann. 540; or who resides in another state but has property in Louisiana. Penn v. Evans, 28 La.Ann. 576. It has been also defined as one who has foyer been domiciled in the state and who resides abroad. Morris v. Bienvenu, 30 La.Ann. 878. One person cannot be both,’ at the same time, in the meaning of the law, a resident and an absentee. Spence v. Spence, 105 So. 28, 29, 158 La. 961.
ABSENTEES, or DES ABSENTEES. A parlia-ment so called was held at Dublin, 10th May, 8 Hen. VIII. It is mentioned in letters patent 29 Hen. VIII.
ABSENTEM ACCIPERE DEBEMUS EUM QUI NON EST EO LOCI IN QUO PETITUR. We ought to consider him absent who is not in the place where he is demanded (or sought). Dig. 50, 16, 199.
ABSENTIA EJUS QUI REIPUBLICJE CAUSA ABEST, NEQUE El NEQUE ALII DAMNOSA ESSE DEBET. The absence of him who is away in behalf of the republic (on business of the state) ought not to be prejudicial either to him or to an-other. Dig. 50, 17, 140.
ABSOILE, ASSOIL, ABSOILE. To pardon; to deliver from excommunication. Staunford, Pl.Cr. 72; Kelham; Cowell.
ABSOLUTA SENTENTIA EXPOSITORE NON INDIGET. An absolute sentence or proposition (one that is plain without any scruple, or absolute without any saving) needs not an expositor. 2 Inst. 533.
ABSOLUTE. Complete; perfect; final; without any condition or incumbrance; as an absolute bond (sinsplex obligatio) in distinction from a con-ditional bond. Unconditional; complete and per-fect in itself ; without relation to or dependence on other things or persons. Instruction as to an "absolute" gift, Ketch v. Smith, 131 Okl. 263, 268 P. 715, 717. Irrevocable, final. Gift inter vivos by husband, President and Directors of Manhat-tan Co. v. Janowitz, 14 N.Y.S.2d 375, 382, 172 Misc. 290. Within limitation or restriction, Comford v. Cantrell, 177 Tenn. 553, 151 S.W.2d 1076, 1077.
An absolute estate is one that is free from all manner of condition or incumbrance; an estate in fee simple. John-
son v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681; Fuller v. Miss-roon, 35 S.C. 314, 14 S.E. 714; Bradford v. Martin, 199 Iowa 250, 201 N.W. 574, 576; Middleton v. Dudding, Mo. Sup., 183 S.W. 443, 444.. A rule is said to be absolute when on the hearing it is confirmed and made final. A convoy-anee is said to be absolute, as distinguished from a mort-gage or other condi tional conveyance. Gogarn v. Connors.
153 N.W. 1068, 188 Mich. 161.. Absolute property is where a man hath solely and exclusively the right and also the
occupation of movable chattels; distinguished from a quali-fied property, as that of a bailee. 2 Kent 347. An absolute owner is one in whom elements of titles of possession, right of possession, and right of property, are combined. Harris v. Southeast Portland Lumber Co., 123 Or. 549, 262 P. 213, 244. Absolute ownership exists when interest is so completely vested in insured that he cannot be deprived of it without his own consent. Norwich Union Fire Ins. Soc. v. Sawyer, 57 Ga.App. 739, 196 S.E. 223, 224. Absolute rights are such as appertain and belong to particular per-sons merely as individuals or single persons, as distin-guished from relative rights, which are incident to them as members of society; 1 Sharsw.Bla.Com. 123; 1 Chit.Pr. 32. An absolute duty is one that is free from every restric-tion; unconditional; determined; not merely provisional: irrevocable. Broken telephone wires. Home Telephone Co. v. Weir, 101 N.E.1020, 1021, 53 Ind.App. 466; Railroad employee, Lehigh Valley R. Co. v. Beltz, C.C.A.N.Y., 10 F.2d 74, 77; Pedestrians, Scibilia v. City of Philadelphia. 279 Pa. 549, 124 A. 273, 275, 32 A.L.R. 981. An "absolute power of disposition," in the absence of statute, would be orle by which the holder of the power might dispose of the property as fully and in the same manner as he might dis-pose of his individual estate acquired by his own efforts. In re Briggs’ Will, 167 N.Y.S. 632, 635, 101 Misc. 191. In the law of insurance that is an absolute interest in property which is so completely vested in the individual that there could be no danger of his being deprived of it without his own consent. Libby Lumber Co. v. Pacific States Fire Ins. Co., 79 Mont. 166, 255 P. 340, 345, 60 A.L.R. 1. It may be used in the sense of vested. Hough v. Ins. Co., 29 Conn. 20, 76 Am.Dec. 581. "Absoluta control" in Motor Vehicle Act does not require instant stoppage. Goff v. Clarksburg Dairy Co., 86 W.Va, 237, 103 S.E. 58, 60. As to absolute control of a mine, see People v. Boggess, 75 Cal.App. 499, 243 P. 478, 481; and of an estate, see Strlckland v. Strick-land, 271 III. 614, 111 N.E. 592, 594. Absolute veto is equiv-alent to "pocket veto". Okanogan, Methow, San Poelis (or San Poil), Nespelem, Colville, and Lake Indian Tribes or Bands of State of Washington v. United States, 49 S.Ct. 463, 279 U.S. 655, 73 L.Ed. 894, 64 A.L.R. 1434.
As to absolute "Conveyance," "Covenant," "Delivery," "Divorce," "Estate," "Gift," "Guaranty," "Interest," "Legacy," "Nuisance," "Nullity," "Obligation," "Proper-ty," "Rights," "Rule," "Sale," "Title," "Warrandice," see those titles.
ABSOLUTE LAW. The true and proper law of nature, immutable in the abstract or in principie, in theory, but not in application; for very often the object, the reason, situation, and other cir-cumstances, may vary its exercise and obligation. 1 Steph.Comm. 21 et seq.
ABSOLUTELY. Completely; wholly; without qualification; without reference or relatron to, or dependence upon, any other person, thing, or event. Thus, absolutely void means utterly void; Pearsoll v. Chapin, 44 Pa. 9. Absolutely neces-sary may be used to make the idea of necessity more emphatic; State v. Tetrick, 34 W.Va. 137, 11 S.E. 1002. An "absolutely necessary repair," with-in tercos of Wisconsin St. 1925, § 85.02, prohibit-ing parking of vehicles except for making abso-lutely necessary repairs, includes repair of a punctured tire. Long v. Steffen, 194 Wis. 179, 215 N.W. 892, 893, 61 A.L.R. 1155. Independently or unconditionally, wholly or positively. Collins
v. Hartford Accident & Indemnity Co., 178 Va. 501, 17 S.E.2d 413, 418.
"Absolutely void" is that which the law or nature of thing.s forbids to be enforced at all, and that is "relatively void" which the law condemns as a wrong to individuals and refuses to enforce against them. Kyle v. Chaves, 42 N.Mex. 21, 74 P.2d 1030; Scudder v. Hart, 45 N.M. 76, 110 P.2d 536, 541.
A devise of property to have "absolutely" means without condition, exception, restriction, qualitication or limitation, In re Darr’s Estate, 206 N.W. 2, 3, 114 Neb. 116, and cre-ates a fee-simple estate. In re Reynold’s Estate, 94 Vt. 149, 109 A. 60, 63.
ABSOLUTION. In Canon Law, a juridical act whereby the clergy declare that the sins of such as are penitent are remitted. Among Protes-tants it is chiefly used for a sentence by which a person who stands excommunicated is released or freed from that punishment. Encyc. Brit.
In the Civil Law a sentence whereby a party accused is declared innocent of the crime laid to his charge.
In French Law, the dismissal of an accusa-tion.
The term acquitment is employed when the accused is declared not guilty, and absolution when he is recognized as guilty but the act is not punishable by law or he is exonerated by some detect of intention or will. Merlin, Répert.
ABSOLUTISM. In politics. A system of gov-ernment in which public power is vested in some person or persons, unchecked and uncontrolled by any law, institution, constitutional device, or coordinate body.
ABSOLVE. To set free, or release, as from obli-gation, debt, or responsibility. State ex rel. St. Louis Car Co. v. Hughes, 348 Mo. 125, 152 S.W.2d 193, 194.
ABSOLVITOR. In Scotch law. An acquittal; a decree in favor of the defender in any action.
ABSQUE. Without. Occurs in phrases taken from the Latin; such as those immediately fol-lowing.
ABSQUE ALIQUO INDE REDENDO. Lat. With-out reserving any rent therefrom; without ren-dering anything therefrom. A term used of a free grant by the crown. 2 Rolle, Abr. 502.
ABSQUE CONSIDERATIONE CURVE. In old practice. Without the consideration of the court; without judgment. Fleta, lib. 2, c. 47, § 13.
ABSQUE HOC. Without this. These are techni-cal words of denial, used in pleading at common law by way of special traverse, to introduce the negative part of the plea, following the affrrma-tive part or inducement. Martin v. Hammon, 8 Pa. 270. See, also, Traverse.
ABSQUE IMPETITIONE VASTI. Without im-peachment of waste; without accountability for waste; without liability to suit for waste. A clause anciently of ten inserted in leases (as theequivalent English phrase sometimes is) signify-ing that the tenant or lessee shall not be Hable to suit (impetitio) or challenged, or called to ac-count, for committing waste. Co. Litt. 220a; Litt. § 352. See Waste.
ABSQUE TALI CAUSA. Lat. Without such cause. A form of replication, now obsolete, in an action ex delicto which works a general de-nial of the whole matter of the defendant’s plea of de injuria. Gould, Pl. c. 7, § 10; Steph. Pl. 191.
ABSTENTION. In French law. Keeping an heir from possession; also tacit renunciation of a succession by an heir. Merl. Répert.
ABSTRACT, n. A less quantity containing the virtue and force of a greater quantity; an abridgment. Alfiler v. Kansas City Light & Pow-er Co., C.C.A.Mo., 13 F.2d 723. A transcript is generally defined as a copy, and is more compre-hensive than an abstract. Harrison v. Mfg. Co., 10 S.C. 278, 283. Summary or epitome, or that which comprises or concentrates in itself the es-sential qualities of a larger thing or of several things. Robbins Inv. Co. v. Robbins, 49 Cal.App. 2d 446, 122 P.2d 91, 92.
ABSTRACT, v. To take or withdraw from; as, tO abstract the funds of a bank. Sprague v. State, 188 Wis. 432, 206 N.W. 69, 70.
ABSTRACT OF A FINE. In old conveyancing. One of the parts of a fine, being an abstract of the writ of covenant, and the concord, naming the parties, the parcels of land, and the agreement. 2 Bl.Comm. 351. More commonly called the "note" of the fine. See Fine; Concord.
ABSTRACT OF RECORD. A complete history in short, abbreviated form of the case as found in the record, complete enough to show that the questions presented for review have been properly reserved. State ex rel. Wallace State Bank v. Trimble, 308 Mo. 278, 272 S.W. 72, 73. Synopsis or summary of facts, rather than table of ron-tents of transcript. Wing v. Brasher, 59 Mont. 10, 194 P. 1106, 1108. Abbreviated accurate and authentic history of proceedings. Brown v. Reich-mann, 237 Mo.App. 136, 164 S.W.2d 201, 207.
ABSTRACT OF TITLE. A condensed history of the title to land, consisting of a synopsis or sum-mary of the material or operative portion of all the conveyances, of whatever kind or nature, which in any manner affect said land, or any estate or interest therein, together with a state-ment of all liens, charges, or liabilities to which the same may be subject, and of which it is in any way material for purchasers to be apprised. Warv. Abst. § 2. Stevenson v. Polk, 71 Iowa, 278, 32 N.W. 340.
Record title, not extrinsic evidence thereof. Upton v. Smith, 166 N.W. 268, 183 Iowa 588. Showing a marketable title Morgan v. W. A. Howard Realty Co., 68 Colo. 414,
facts relied on as evidence of title, together with ah such facts appearing of record as may impair the title. State ex rel. Freeman v. Abstracters Board of Examiners, 99 Mont. 564, 45 P.2d 668, 670. Vangsness v. Bovill, 58 S.D. 228, 235 N.W. 601, 604. Memorandum or concise statement in orderly form of the substance of documents or facts appearing on public records which affect title to real property. State ex rel. Doria v. Ferguson, 145 Ohio St. 12, 60 N.E.2d 476, 478.
ABSTRACT QUESTION. One which does not rest upon existing facts or rights. Morris Plan Bank of Fort Worth v. Ogden, Tex.Civ.App., 144 S.W.2d 998, 1004.
ABSTRACTION. Taking from with intent to in-jure or defraud, "wrongful abstraction" is "unau-thorized and illegal taking or withdrawing of funds, etc., and appropriation thereof to taker’s benefit." Pacific Coast Adjustment Bureau v. Indemnity Ins. Co. of North America, 115 Cal. App. 583, 2 P.2d 218, 219.
For benefit of taker or of another with bis consent. Austin v. Nieman, Tex.Civ.App., 3 S.W.2d 128, 129. Of-fense for bank officer, popular sense of word. Common-wealth v. Dauphinee, 121 Pa.Super. 565, 183 A. 807, 813. Under the National Bank Act, not necessarily the same as embezzlement, larceny, or misapplication of funds. Fer-guson v. State, 80 Tex.Cr.R. 383, 189 S.W. 271, 273. State v. Hudson, 93 W.Va. 435, 117 S.E. 122, 126.
ABSURDITY. That which is both physically and morally impossible; and that is to be regarded as morally impossible which is contrary to reason, so that it could not be imputed to a man in his right senses. State v. Hayes, 81 Mo. 574, 585. Anything which is so irrational, unnatural, or in-convenient that it cannot be supposed to have been within the intention of men of ordinary in-telligence and discretion. Black, Interp. Laws, 104; Graves v. Scales, 172 N.C. 915, 90 S.E. 439; obviously and fiatly opposed to the manifest truth; inconsistent with the plain dictates of common sense; logically contradictory; nonsen-sical; ridiculous. Wade v. Empire Dist. Electric Co., 98 Kan. 366, 158 P. 28, 30.
ABUNDANS CAUTELA NON NOCET. Abun-dant or extreme caution does no harm. 11 Co. 6; Fleta, lib. 1, c. 28, 1 1; 6 Wheat. 108. This princi-ple is generally applied to the construction of instruments in which superfluous words have been inserted more clearly to express the intention.
ABUS DE CONFIANCE. Fraudulently misusing or spending to anybody’s pre judice goods, cash, bills, documents, or contracts handed over for a special object. The Washington, D.C.N.Y., 19 F. Supp. 719, 722.
ABUSE, n. Everything which is contrary to good order established by usage. Merl. Répert. De-parture from use; immoderate or improper use.
Action that would be necessary In ordinary affairs to make one guilty of an "abuse" connotes conduct of a dif-ferent grade than what is meant when a court is said to have "abused its discretion." Beck v. Wings Field, Inc. C.C.A.Pa., 122 F.2d 114, 116.
191 P. 114, 115. An epitome of the record evidence of title.
De Huy v. Osborne, 96 Fla. 435, 118 So. 161, 162. Including Civil Law maps, plats, and other alds. Commissioners’ Court of
Madison County v. Wallace, 118 Tex. 279, 15 S.W.2d 535, The destruction of the substance 536. An epitome of the conveyances, transfers, and other using it. See Abuse, v.
of a thing in
Corporate Franchise or Entity
The abuse or misuse of its franchises by a cor-poration signifies any positive act in violation of the charter and in derogation of public right, willfully done or caused to be done; the use of rights or franchises as a pretext for wrongs and injuries to the public. People v. Atlantic Ave. R. Co., 125 N.Y. 513, 26 N.E. 622
Discretion
"Abuse of discretion" is synonymous with a fail-ure to exercise a sound, reasonable, and legal dis-cretion. Disbarrnent, Adair v. Pennewill, 153 A. 859, 860, 4 W.W.Harr.(Del.) 390. It is a strict legal term indicating that appellate court is simply of opinion that there was commission of an error of law in the circumstances. Refusing motion to amend pleadings, Tunstall v. Lerner Shops, 160 S.C. 557, 159 S.E. 386. Motions to con-solidate actions, Bishop v. Bishop, 164 S.C. 493, 162 S.E. 756, 757. Vacating judgment, Detroit Fi-delity & Surety Co. v. Foster, 171 S.C. 121, 169 S.E. 871, 881. And it does not imply intentional wrong or bad faith, or misconduct, nor any reflec-tion on the judge but means the clearly erroneous conclusion and judgment—one is that clearly against logic and effect of such facts as are pre-sented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law. New trial, State v. Draper, 83 Utah, 115, 27 P.2d 39. Setting aside of decree pro confesso. Ex parte Jones, 246 Ala. 433, 20 So.2d 859, 862.
A discretion exercised to an end or purpose not justified by and clearly against reason and evidence. Trimmer v. State, 142 Okl. 278, 286 P. 783, 786; Seaba v. State, 290 P. 1098, 1101, 144 Okl. 295. Unreasonable departure from considered precedente and settled judicial custom, con-stituting error of law. Beck v. Wings Field, Inc., C.C.A. Pa., 122 F.2d 114, 116, 117. The terco is commonly em-ployed to justify an Interferente by a higher court with the exercise of discretionary power by a lower court and is said by some authorities to imply not merely error of judgment, but perversity of will, passion, prejudice, par-tiality, or moral delinquency. The exercise of an honest judgment, however erroneous it may appear tu be, is not an abuse of discretion. Stroup v. Raymond, 183 Pa. 279, 38 A. 626. Where a court does not exercise a discretion in the sense of being discreet, circumspect, prudent, and exercis-ing cautious judgment, it is an abuse of discretion. State Board of Medical Examiners v. Spears, 79 Colo. 588, 247 P. 563, 565. Difference in judicial opinion is not synonymous with "abuse of judicial discretion" as respects setting asido verdict as against evidence. Belock v. State Mut. Fire Ins. Co., 106 Vt. 435, 175 A. 19, 22.
Distress
The using an animal or chattel distrained, which makes the distrainer hable as for a con-version.
Female Child
An injury to the genital organs in an attempt at carnal knowledge, falling short of actual penetra-tion. Lee v. State, 246 Ala. 69, 18 So.2d 706, 707. But, according to other authorities, "abuse" is here equivalent to ravishment or rape. Palin v. State. 38 Neb. 862, 57 N.W. 743. Physical abuse. Montgomery v. State, 28 Ala.App. 442, 186 So
Process
There is said to be an abuse of process when an adversary, through the malicious and unfouncl-ed use of some regular legal proceeding, obtains some advantage over his opponent. Wharton. Employment of process for doing an act clearly outside authority conveyed by express terms of writ. Shane v. Gulf Refining Co., 114 Pa.Super. 87, 173 A. 738, 740.
The gist of an action for "abuse of process" is improper use or perversion of process after it has been issued. Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.2d 413, 415. Holding of accused incommunicado before compiying with warrant requiring accused to be taken before mag,istrate. People v. Crabb, 372 III. 347, 24 N.E.2d 46, 49. Warrant of arrest tu merco debtor. In re Wil-liams, 233 Mo.App. 1174, 128 S.W.2d 1098, 1105. A mali-cious abuse of legal process occurs where the party em-ploys it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it. Lauzon v. Charroux, 18 R.I. 467, 28 A. 975. Vybiral v. Schildhauer, 265 N.W. 241, 244, 130 Neb. 433; Silverman v. Ufa Eastern Division Distribution, 236 N.Y.S. 18, 20, 135 Misc. 814. Thus, where the purpose of a prosecution for issuance of a check without fundo was to collect a debt, the prosecution constituted an abuse of criminal process. Hotel Supply Co. v. Reid, 16 Ala.App. 563, 80 So. 137, 138. Regular and legitimate use of process, although with a bad intention, is not a malicious "abuse of process." Priest v. Union Agency, 174 Tenn. 304, 125 S. W.2d 142, 143. Action for "abuse of process" is distin-guished from action for "malicious prosecution," in that action for abuse of process resto upon improper use of reg-ularly issued process, while "malicious prosecution" has reference to wrong in issuance of process. Clikos v. Long, 231 Ala. 424, 165 So. 394, 396; Mclnnis v. Atlantic Inv. Cor-poration, 137 Or. 648, 4 P.2d 314, 315; Lobel v. Trade Bank of New York, 229 N.Y.S. 778, 781, 132 Misc. 643.
ABUSE, v. To make excessive or improper use of a thing, or to employ it in a manner contrary to the natural or legal rules for its use; to make an extravagant or excessive use, as tu abuse one’s authority.
In the civil law, the borrower of a chattel which, in its nature, cannot be used without consuming it. such as wine or grain, is said to abuse the thing borrowed if he uses it. It has been held to include misuse; Erie & North-East R. Co. v. Casey, 26 Pa. 287; to signify to injure, diminish in value, or wear away by improper use; id. ; to he synon-ymous with injure; Dawkins v. State, 58 Ala. 376, 29 Am. Rep. 754.
ABUSIVE. Tending to deceive; practicing abuse; prone to ill treat by coarse, insulting words. U. S. v. Ault, D.C.Wash., 263 F. 800, 810. Using in treatment, injurious, improper, hurtful, offen-sive, reproachful. People on Complaint of Wil-son v. Sinclair, 149 N.Y.S. 54, 56, 86 Misc. 426.
ABUT. To reach, to touch. In old law, the ends were said to abut, the sities to adjoin. Cro. Jac. 184. And see Lawrence v. Killam, 11 Kan. 499, 511; Springfield v. Green, 120 III. 269, 11 N.E. 261. To take a new direction; as where a bound-ing line changes its course. Speirnan, Gloss. Abuttare. To touch at the end; be contiguous; join at a border or bounclary; termina■ e; to end at; to border un; to reach or touch with an end. Assessment of property, ilensler v. City of Ana-cortes, 140 Wash. 184, 248 P. 406, 407. The term "abutting" implies a closer proxirnity than the term "adjacent." Reversion of vacated park land,City of Hutchinson v. Danley, 88 Kan. 437, 129 P. 163, 164. "Contiguous" synonymous, both con-veying idea that lot borders on improvement. Reynard v. City of Caldwell, 55 Idaho 342, 42 P.2d 292, 296.
No intervening land. Johnson v. Town of Watertown, 131 Conn. 84, 38 A.2d 1, 4. Property at end of street sought to be vacated. Messinger v. City of Cincinnati, 36 Ohio App. 337, 173 N.E. 260, 262. Widen street, leaving free access to paved street, property withirr assessment stat-utes. Goodman v. City of Birmingham, 223 Ala. 199, 135 So. 336, 337. Though the usual meaning of the word is that the things spoken of do actually adjoin, "bounding and abutting" have no such inflexible meaning as to re-quire lots assessed actually to touch the improvement; Cohen v. Cleveland, 43 Ohio St. 190, 1 N.E. 589.
ABUTMENTS. The walls of a bridge adjoining the land which support the end of the roadway and sustain the arches. The ends of a bridge, or those parts of it which touch the land. Board of Chosen Freeholders of Sussex County v. Stra-der, 18 N.J.Law, 108, 35 Am.Dec. 530. Support at either extreme end. City of New York v. New York Cent. R. Co., 48 N.Y.S,2d 189, 191, 183 Misc. 104.
ABUTTALS. Fr. The buttings or boundings of lands, showing to what other lands, highways, or places they belong or are abutting. Termes de la Ley; Cowell; Toml. It has been used to express the end boundary Unes as distinguished from those on the sides, as "buttals and sidings"; Cro.Jac. 183.
ABUTTER. One whose property abuts, is contigu-ous, or joins at a border or boundary, as where no other land, road, or street intervenes.
ABUTTING OWNER. An owner of land which abuts or adjoins. The term usually implies that the relative parts actually adjoin, but is some-times loosely used without implying more than close proximity. See Abut.
Where five-foot strip between property assessed for pav-ing and street was conveyed to city but not used for street purposes, property assessed held not "abutting property," Davidson v. Salt Lake City, 81 Utah 203, 17 P.2d 234, 237. Property owners held "abutting property owners," sub-ject to sewer assessment, notwithstanding street was wid-ened from 40 to 50 feet when incorporated in state high-way, and city hought the extra 5 feet on either side. Ca-rey-Reed Co. v. Siseo, 251 Ky. 22, 64 S.W.2d 430, 433. Rail-road in street was not "abutting owner". Town of Lenoir v. Carolina & N. W. Ry. Co., 194 N.C. 710, 140 S.E. 618, 619.
AC ETIAM. (Lat. And also.) The introduction of the statement of the real cause of action, used in those cases where it was necessary to allege a fictitious cause of action to give the court juris-diction, and also the real cause in compliance with the statutes. It is sometimes written acetiam. 2 Stra. 922. See Bill of Middlesex under Bill, defi-nition 2.
AC ETIAM BILL/E. And also to a bill. See Ac Etiam.
AC SI. (Lat. As if.) Townsh. Pl. 23, 27. These words frequently occur in old English statutes.Lord Bacon expounds their meaning in the statute of uses: "The statute gives entry, not simpliciter, but with an ac si." Bac. Read. Uses, Works, iv. 195,
ACADEME. Place of academic study. Sisters of Mercy v. Town of Hooksett, 93 N.H. 301, 42 A.2d 222, 225.
ACADEMY. An institution of learning. An as-sociation of experts in some particular branch of art,’literature, or science.
In its original meaning, an association formed for mutual improvement, or for the advancement of science or art; in later use, a species of educational Institution, of a grade between the common school and the collepe. Academy of Fine Arts v. Philadelphia County, 22 Pa. 496; School hold-ing rank between college and common school, U. S. ex rel. Jacovides v. Day, C.C.A.N.Y., 32 F.2d 542,544; Sisters of Merey v. Town of Hooksett, 93 N.H. 301, 42 A.2d 222, 225. See School.
ACAPTE. In French feudal law. A species of relief ; a seignorial right due on every change of a tenant. A feudal right which formerly pre-vailed in Languedoc and Guyenne, being attached to that species of heritable estates which were granted on the contract of emphyteusis. Guyot, Inst. Feod. c. 5, § 12.
ACCEDAS AD CURIAM. (Lat. That you go to court.) An original writ out of chancery directed to the sheriff, for the purpose of removing a re-plevin suit from a Court Baron or a hundred court to one of the superior courts of law. It directs the sheriff to go to the lower court, and enroll the proceedings and send up the record. See Fitzh. Nat. Brev. 18; Dy. 169; 3 Bl. Comm. 34.
ACCEDAS AD VICE COMITEM. L. Lat. (You go to the sheriff.) A writ formerly directed to the coroners of a county in England, commanding them to go to the sheriff, where the latter had suppressed and neglected to return a writ of pone, and to deliver a writ to him requiring him to return it. Reg. Orig. 83. See Pone.
ACCELERATION. The shortening of the time for the vesting in possession of an expectant in-terest. Wharton. Hastening of the enjoyment of an estate which was otherwise postponed to a later period. Blackwell v. Virginia Trust Co., 177 Va. 299, 14 S.E.2d 301, 304.
If the life estate fails for any reason, the remainder is "accelerated". Elliott v. Brintlinger, 376 III. 147, 33 N.E. 2d 199, 201, 133 A.L.R. 1364. The word is also used in ref-erence to contracts for payment of money in what is usual-ly called an "acceleration clause" by which the time for payment of the debt is hastcned or advanced because of breach of some condition such as failure to pay interest when due, McCormick v. Daggett, 162 Ark. 16, 257 S.W. 358: insolvency of the maker, Wright v. Seaboard Steel & Manganese Corporation, C.C.A.N.Y., 272 F. 807; or failure to keep rnortgaged premises insured, Porter v. Schroll, 93 Kan. 297, 144 P. 216.
ACCEPT. To receive with approval or satisfac-tion; to receive with intent to retain. See Morris v. State, 102 Ark. 513, 145 S.W. 213, 214. Also, in the capacity of drawee of a bill, to recognize the draft, and engage to pay it when due. It is notequivalent to "acquiesce." Applett v. Empire Inv. Co., 99 Or. 533, 194 P. 461, 462. Admit and agree to; accede to or consent to; receive with approval; adopt; agree to. Rocha v. Hulen, 6 Cal.App.2d 245, 44 P.2d 478, 482, 483. Street committee’s and city engineer’s reports. City of Morehead v. Blair, 243 Ky. 84, 47 S.W.2d 741, 742. Means something more than to receive, meaning to adopt, to agree to carry out provisions. Assignee of lease, Pickler v. Mershon, 212 Iowa, 447, 236 N.W. 382, 385; Central State Bank v. Herrick, 214 Iowa 379, 240 N.W. 242, 246. Renewal health and accident policy premiums, Prescott v. Mutual Ben. Health and Accident Ass’n, Fla., 183 So. 311, 314, 119 A.L.R. 525.
ACCEPTANCE. The taking and receiving of anything in good part, and as it were a tacit agreement to a preceding act, which might have been defeated or avoided if such acceptance had not been made. Brooke, Abr. The act of a per-son to whom a thing is offered or tendered by an-other, whereby he receives the thing with the in-tention of retaining it, such intention being evi-denced by a sufficient act. JEtna Inv. Corporation v. Chandler Landscape & Floral Co., 227 Mo.App. 17, 50 S.W.2d 195, 197.
The exercise of power conferred by an offer by performance of some act. In re Larney’s Estate, 266 N.Y.S. 564, 148 Misc. 871.
Bills of Exchange
An engagement to pay the bill in money when due. 4 East 72; Hunt v. Security State Bank, 91 Or. 362, 179 P. 248, 251.
The act by which the person on whom a bill of exchange is drawn (called the "drawee") assents to the request of the drawer to pay it, or, in other words, engages, or makes himself hable, to pay it when due. Bell-Wayland Co. v. Bank of Sugden, 95 Okl. 67, 218 P. 705. It may be by parol or in writing, and either general or special, absolute or conditional; and it may be impliedly, as well as expressly, given. 3 Kent, Comm. 83, 85; Story, Bills, §§ 238, 251. Telegram directing drawer to draw draft. Hoffer v. East-land Nat, Bank, Tex.Civ.App., 169 S.W.2d 275, 278. Cer-tification at request of the payee or holder. ‘Velch v. Bank of Manhattan Co., 35 N.Y.S.2d 894, 895, 264 App.Div. 906. But the usual and regular mode of acceptance is by the drawee’s writing across the face of the bill the word "ac-cepted," and subscribing his narre; alter which he is termed the acceptor. Story, Bills, § 243.
Contracts
Compliance by offeree with terms and condi-tions of offer would constitute an "acceptance". Davis & Clanton v. C. I. T. Corporation, 190 S.C. 151, 2 S.E.2d 382, 383.
Qualifications or conditions make a "counteroffer," not an "acceptance." Cohn v. Penn Beverage Co., 313 Pa. 349, 169 A. 768, 769. Bullock v. McKeon, 104 Cal.App. 72, 285 P. 392, 395.
Deed
Act by which vendee vests himself with title to the property. Hardin v. Kazee, 238 Ky. 526, 38 S.W.2d 438
Insurance
In a contract of insurance, the "acceptance" oc-curs when insurer agrees to accept application and to issue policy. Acacia Mut. Life Ass’n v. Berry, 54 Ariz. 208, 94 P.2d 770, 772. Delay or in-action on the part of an insurer cannot constitute an "acceptance". French American Banking Cor-poration v. Fireman’s Fund Ins. Co., D.C.N.Y., 43 F.Supp. 494, 498. More than mere mental resolu-tion or determination on part of insurer to accept application. Must be communicated to applicant. Limbaugh v. Monarch Life Ins. Co., Springfield, Mass., Mo.App., 84 S.W.2d 208, 212.
Marine Insurance
The acceptance of an abandonment by the un-derwriter is his assent, either express or to be implied from the surrounding circumstances, to the sufficiency and regularity of the abandonment. Rap. & Law.
Sales
An acceptance implies, not only the physical fact of receiving the goods, but also the intention of retaining them. Illinois Fuel Co. v. Mobile & O. R. Co., 319 Mo. 899, 8 S.W.2d 834, 841.
Retaining and using goods. Ohio Electric Co. v. Wis-consin-Minnesota Light & Power Co., 161 Wis. 632, 155 N. W. 112, 113. Pressure tanks, Dunck Tank Works v. Suther-land, 236 Wis. 83, 294 N.W. 510, 513. Coal stokers used for 15 months before request for removal, United States v. Lux Laundry Co., C.C.A.Ind., 118 F.2d 848, 849. Where goods are expressly rejected, receipt does not mean accept-anee. State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757, 760. The acceptance of goods sold under a contract which would be void by the statute of frauds without delivery and acceptance Involves something more than the act of the vendor in the delivery. It re-quires that the vendee should also act, and that his act should be of such a nature as to indicaté that he receives and accepts the goods delivered as his property. He must receive and retain the articles delivered, intending there-by to assume the title to them, to constitute the acceptance mentioned in the statute. Rodgers v. Phillips, 40 N.Y. 524. See, also, Snow v. Warner, 10 Mete (Mass.) 132, 43 Am.Dec. 417. There must be some unequivocal act, with intent to take possession as owner. Vacuum Ash & Soot Conveyor Co. v. Huyler’s, 101 N.J.Law, 147, 127 A. 203, 204. Title and possession must be in unrestricted control of buy-er so as not to permit of recall or rescission. Mellen Pro-duce Co. v. Fink, 225 Wis. 90, 273 N.W. 538. Mere words are insufficient to cstablish "delivery and receipt." Mellen Produce Co. v. Fink, 225 Wis. 90, 273 N.W. 538, 542.
The following are the principal varieties of acceptances:
Absoluto. An express and positive agreement to pay the bill according to its tenor.
Conditional. An engagement to pay the bill on the hap-pening, of a condition. Todd v. Bank of Kentucky, 3 Bush (Ky.) 628. A "conditional acceptance" is in effect a state-ment that the offeree is willing to enter luto a bargain differing in some respects from that proponed in the origi-nal offer. The conditional acceptance is, therefore, itself a counter offer. Hoskins v. Michcner, 33 Idaho, 681, 197 P. 724. Morris F. Fox & Co. v. Lisman, 208 Wis. 1, 237 N.W. 267, 271. Worley v. Holding Corporation, 348 III. 420, 181 N.B. 307, 309.
Express. An undertaking in direct and express terms to pay the bill; an absolute acceptance.
An undertaking to pay the bill inferred from acts of the drawee of a character which fairly warrant such an in ference. In case of a bilateral contract, "acceptance" of an offer need not be expressed, but may be shown by any words or acts indicating the offeree’s assent to the proposed bargaln. Prescott v. Mutual Seri, Health and Ac-cident Ass’n, 133 Fla. 510, 183 So. 311, 315, 119 A.L.R. 525. Frederick Raff Co. v. Murphy, 110 Conn. 234, 147 A. 709, 711. Tenant for several months contínued to occupy store-room and paid rentals, C. R. Anthony Co. v. Stroud, 189 Okl. 104, 114 P.2d 177, 178. Landlord’s reletting leased premises after default in rent, In re Lear Shoe Co., Sup., 22 N.Y.S.2d 778, 782. Taking possession, exercise of owner-ship and dominion and failure te complain to seller, Bell v. Main, D.C.Pa., 49 F.Supp. 689, 692.
Partial. An acceptance varying from the tenor of the bill. An acceptance to pay part of the amount for which the bill is drawn, 1 Strange 214, or to pay at a different time, 14 Jur. 806; Hatcher v. Stolworth, 25 Miss. 376; or at a different place, 4 M. & S. 462, would be partial. For some examples of what do and what do not constitute conditional acceptances, see Heaverin v. Donnell, 7 Smedes & M. (Miss.) 245, 45 Am.Dec. 302; Campbell v. Pettengill, 7 Greenl. (Me.) 126, 20 Am.Dec. 349; Ensign v. Clark Bros. Cutlery Co., 195 Mo.App. 584, 193 S.W. 961, 962. Provi-sions respecting cutting of timber etc. on optioned land, did not destroy the "acceptance". Bastian v. United Sietes, C. C.A.Ohlo, 118 F.2d 777, 779. Would be in named place for purpose of entering into option, Ackerman v. Carpenter, 113 Vt. 77, 29 A.2d 922, 925. Counter proposition to option. Tholl Oil Co. v. Miller, 197 La. 976, 3 So.2d 97, 98. Con-ditional, qualified acceptance, Moore Bros. v. Kirkpatrick, Tex.Civ.App., 172 S.W.2d 135, 137.
Qualified. One either conditional or partial, and which introduces a variation in the sum, time, mode, or place of payment.
Supra protest. An acceptance by a third person, after protest of the bill for non-acceptance by the drawee, to save the honor of the drawer or some particular indorser. A. general acceptance is an absolute acceptance precisely in conformity with the tenor of the bill itself, and not qualified by any statement, condition, or change. Todd v. Bank of Kentucky, 3 Bush (Ky.) 628. A special acceptance is the qualified acceptance of a bill of exchange, as where it is accepted as payable at a particular place "and not elsewhere." Rowe v. Young, 2 Brod. & B. 180. See Trade Acceptance.
ACCEPTANCE AU BESOIN. Fr. In French law. Acceptance in case of need; an acceptance by one on whom a bill is drawn au besoin, that is, in case of refusal or failure of the drawee to ac-cept. Story, Bills, §§ 65, 254, 255.
ACCEPTARE.
Civil Law
Lat. To accept; to assent; to assent to a prom-ise made by another. Gro. de J. B. lib. 2, c. 11, § 14.
Pleading
To accept. Acceptavit, he accepted. 2 Strange, 817. Non acceptavit, he did not accept. 4 Man. & G. 7
ACCEPTEUR PAR INTERVENTION. In French law. Acceptor of a bill for honor
ACCEPTILATION. In the civil and Scotch law. A release made by a creditor to his debtor of his debt, without receiving any consideration. Ayl. Pand. tit. 26, p. 570. It is a species of donation, but not subject to the forms of the latter, and is valid unless in fraud of creditors. Merl. Répert.
The verbal extinction of a verbal contract, with a declaration that the debt has been paid when it has not; or the acceptance of something merely imaginary in satisfaction of a verbal contract. Sanders’ Just. Inst. (5th Ed.) 386.
ACCESSION. Coming into possession of a right or office; increase; augmentation; addition.
The right to all which one’s oven property produces, whether that property be movable or immovable; and the right to that which is united to it by accession, either na-turaily or artiticially. 2 Kent, 360; 2 BI.Comm. 401; Franklin Service Stations v. Sterling Motor Truck Co. of N. E. 50 R.I. 336, 147 A. 754, 755.
Riparian owners’ right to abandoned river beds and rights of alluvion by accretion and reliction, Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438, 443, 444.
A principie derived from the civil law, by which the owner of property becomes entitled to all which it pro-duces, and to all that is added or united to it, either natu-ral]y or artificially, (that is, by the labor or skill of anoth-er.) even where such addition extends to a change of form or materials; and by which, on the other hand. the pos-sessor of property becomes entitled to it, as against the original owner, where the addition made to it by bis skill and labor is of greater value than the property itself, or where the change effected in its form is so great as to rendar it impossible to restore it to its original chape. Twin City Motor Co. v. Rouzer Motor Co., 197 N.C. 371, 148 S.E. 461, 463. In Blackwood Tire & Vulcanizing Co. v. Auto Storage Co., 133 Tenn. 515, 182 S.W. 576, L.R.A.1916E, 254, Ann,Cas.1917C, 1168, this principie ovas applied in favor of the conditional seller who, on nonpayment, retook the automobile sold, together with tire casings which the buy-er had fitted thereto. Valley Chevrolet Co. v. O. S. Stapley Co., 50 Ariz. 417, 72 P.2d 945.
International Law
The absolute or conditional acceptance by one or several states of a treaty already concluded be-tween other sovereignties. Merl. Répert. It may be of two kinds: First, the formal entrance of a third state into a treaty so that such state be-comes a party to it; and this can only be with the consent of the original parties. Second, a state may accede to a treaty between other states solely for the purpose of guarantee, in which case, though a party, it is affected by the treaty only as a guarantor. 1 Oppenheim, Int.L. sec. 532. See Adhesion.
Also, the commencement or inauguration of a sovereign’s reign
ACCESSION, DEED OF. In Scotch law. A deed executed by the creditors of a bankrupt or insol-vent debtor, by which they approve of a trust giv-en by their debtor for the general behoof, and bind themselves to concur in the plans proposed for extricating his affairs. Bell, Dict.
ACCESSORIUM NON DUCIT, SED SEQUITUR SUUM PRINCIPALE. Co. Litt. 152a, 389a. That which is the accessory or incident does not lead, but follows, its principal.
ACCESSORIUS SEQUITUR NATURAM SUI PRINCIPALIS. An accessary follows the nature of his principal. 3 Inst. 139. One who is acces-sary to a crime cannot be guilty of a higher de-gree of crime than his principal.
ACCESSORY. Anything which is joined to anoth-er thing as an ornament, or to render it more perfect, or which accompanies it, or is connected with it, as an incident, or as subordinate to it, or which belongs to or with it; for example, the halter of a horse, the frame of a picture, the keys of a house.
Adjunct or accompaniment. Louis Werner Saw Mill Co. v. White, 205 La. 242, 17 So.2d 264, 270.
A sale of land carried with it the standing timber as an "accessory." Woollums v. Hewitt, 142 La. 597, 77 So. 295, 296,
Automohile Accessories
Articles primarily adapted for use in motor ve-hieles, under revenue acts. Universal Battery Co. v. U. S., Ct.C1., 50 S.Ct. 422, 423, 281 U.S. 580, 74 L.Ed. 1051.
Criminal Law
Contributing to or aiding in the commission of a crime. One who, without being present at the commission of a felonious offense, becomes guilty of such offense, not as a chief actor, but as a par-ticipator, as by command, advice, instigation, or concealment; either before or after the fact or commission; a particeps criminis. 4 BI.Comm. 35; Cowell.
One who is not the chief actor in the offense, nor pres-ent at its perfornlanee. but in some way concerned therein, either before or «J. ler the act committed. State v. Thomas, 1:36 A. 475, 477, 105 Conn. 757. One who aids and abets another. People v. Smith, 260 N.W. 911, 271 Mich. 553. Commands or counsels another. United States v. Peoni, C.C.A.N.Y., 100 F.2d 401, 402.
An "accessory" to a crime is always an "accomplice." People v. Ah Gee, 37 Cal.App. 1, 174 P. 371, 373. In certain crimes. there can be no accessories; all who are concerned are principals. These are (according to many authorities) treason, and all ofensas below the degree of felony: 4 Bla.Comm. 35; Com. v. McAtee, 8 Dana (Ky.) 28; Wil-liams v. State, 12 Smedes & M. (Miss.) 58.
Accessory Before the Fact
One who, bei•ng absent at the time a crime is committed, yet assists, procures, counsels, incites, induces, encourages, engages, or commands anoth-er to commit it. 4 Steph. Comm. 90, note n. People v. Owen, 241 Mich. 111, 216 N.W. 434. United States v. Pritchard, D.C.S.C., 55 F.Supp. 201, 203; rape, Clayton v. State, 244 Ala. 10, 13 So.2d 420, 422.
Murder, Wells v. State, 94 Ga. 70, 20 S.E.2d 580, 582. Distilling, State v. Lackmann, Mo., 12 S.W. 2d 424, 425.
Accessory During the Fact
One who stands by without interfering or giv-ing such help as may be in his power to prevent the commission of a criminal offense. Farrell v. People, 8 Colo.App. 524, 46 P. 841.
Accessory After the Fact
One who, having full knowledge that a crime has been committed, conceals it from the magis-trate, and harbors, assists, or protects the person charged with, or convicted of, the crime. Ver-non’s Ann.C.C.P. art. 53.
All persons who, after the commission of any felony, conceal or aid the offender, with knowl-edge that he has committed a felony, and with in-tent that he may avoid or escape from arrest, trial, conviction, or punishment, are accessories.
Comp.Laws N.D.1913, § 9219; Rev.Code S.D.1919, § 3595.
An accessory alter the fact is a person who, knowing a felony to have been committed by another, reccives, re-lieves, comforts or assists the felon, in order te enable him to escape from punishment, or the lile. Buck v. Common-wealth, 116 Va. 1031, 83 S.E. 390, 393. Knowledge, or de-nlal of knowledge, of perpetration of crime. or silente does not mak° one an "accessory after the fact." Com-‘ monwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71. 75. Cantu V. State, 135 S.W.2d 705, 710, 141 Tex.Cr.R. 99. But af-firmative action by false testimony or otherwise usable by accused to escape punishment constitutes cine "accessory" as to his testimony. Fisher v. State, 34 S.W.2d 293, 294, 117 Tex.Cr.R. 552; falso statements to sheriff relative to defendant’s connection with homicide in order lo evade arrest, Littles v. State, 111 Tex.Cr.R. 500, 14 S.W.2d 853, 854.
Aiders and Abettors Distinguished
The concept of an "accessory before the fact" presupposes a prearrangement to do the criminal act, and to constitute one an "aider and abettor" he must be on the ground and by his presence aid, encourage or incite the principal. Morei v. United States, C.C.A.Ohio, 127 F.2d 827, 830, 831.
Principal Distinguished
"Principal in the second degree," as distin-guished from "accessory before the fact," is one who aids in commission of felony by being either actually or constructively present, aiding, and abetting commission of felony, when perpetrated. Neumann v. State, 116 Fla. 98, 156 So. 237, 239.
ACCESSORY ACTION. In Scotch practice. An action which is subservient or auxiliary to anoth-er. Of this kind are actions of "proving the ten-or," by which lost deeds are restored; and actions of "transumpts," by which copies of principal deeds are certified. Bell, Dict.
ACCESSORY CONTRACT. In the civil law. A contract which is incident or auxiliary to another or principal contract; such as the engagement of a surety. Poth. Obl. pt. 1, c. 1, § 1, art. 2.
A principal contract is one entered into by both parties on their own accounts, or in the severa! qualities they as-sume. An accessory contract is made for assuring the per-formance of a prior contract, either by the same parties or by others; such as suretyship, mortgage, and pledge. Blaisdell v. Coe, 83 N.H. 167, 139 A. 758, 65 A.L.R. 626.
ACCESSORY OBLIGATION.
Civil Law
An obligation which is incident to another or principal obligation; the obligation of a surety. Poth. Obl. pt. 2, c. 1, § 6.
Scotch Law
tions, such as obligations to pay interest, etc. Ersk. Inst. lib. 3, tit. 3, § 60.
See, further, Obligation.
ACCESSORY TO ADULTERY. Implies more than connivance, which is merely knowledge with consent. A conniver abstains from interference;
an accessory directly commands, advises, or pro-cures the adultery. 20 & 21 Vict. c. 85, §§ 29, 31.
ACCIDENT. The word "accident" is derived from the Latin verb "accidere" signifying "fall upon, befali, happen, chance." In an etymological sense anything that happens may be said to be an accident and in this sense, the word has been defined as befalling; a change; a happening; an incident; an occurrence or event. In its most commonly accepted meaning, or in its ordinary or popular sense, the word may be defined as mean-ing a fortuitous circumstance, event, or happen-ing, an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circum-stances is unusual and unexpected by the person to whom it happens; an unusual, fortuitous, un-expected, unforeseen or unlooked for event, hap-pening or occurrence; an unusual or unexpected result attending the operation or performance of a usual or necessary act or event; chance or contingency; fortune; mishap; some sudden ánd unexpected event taking place without expectation, upon the instant, rather than something which continues, progresses or develops; something happening by chance; something unforeseen, un-expected, unusual, extraordinary or phenominal, taking place not according to the usual course of things or events, out of the range of ordinary calculations; that which exists or occurs abnor-mally, or an uncommon occurrence; the word may be employed as denoting a calamity, casual-ty, catastrophe, disaster, an undesirable or unfor-tunate happening; any unexpected personal in-jury resulting from any unlooked for mishap or occurrence; any unpleasant or unfortunate oc-currence, that causes injury, loss, suffering or death; some untoward occurrence aside from the usual course of events. Adams v. Metropolitan Life Ins. Co., 136 Pa.Super. 454, 7 A.2d 544, 547; without known or assignable cause, Ramsay v. Sullivan Mining Co., 51 Idaho 366, 6 P.2d 856, 858.
In its proper use the terco excludes negligence; Dallas Ry. & Terminal Co. v. Allen, Tex.Civ.App., 43 S.W.2d 165, 170; that is, an accident is an event which occurs without the fault, carelessness, or want of proper circumspection of the person affected, or which could not have been avoid-ed by the use of that kind and degree of caro necessary to the exigency and in the circumstances in which he was placed. Brown v. Kendall, 6 Cush. (Mass.) 292; essential requirement being that happening be one to which human fault does not contributc, Bogan v. Kansas City Public Service Co., 322 Mo. 1103, 19 S.W.2d 707, 713, 65 A.L.R. 129; happening of an event without any human agency, Terry v. Woodmen Accident Co., 225 Mo.App. 1223, 34 S.W.2d 163, 164. It has been said, moreover, that the word "ac-cident" does not have a settled legal signification; Klop-fenstein v. Union Traction Co., 112 Kan. 770. 212 P. 1097, 1098; and that in its ordinary meaning it does not nega-tive the idea of negligence on the part of the person whose physical act caused the occurrence. Campbcll v. Jones, 73 Wash. 688, 132 P. 635, 636. Not merely inevitable casual-ty or the act of providente, or what is technically calied vis major. or irresistible force. Gardner v. State, 1 N.Y. S.2d 994, 997, 166 Alise. 113.
See Act of God.
to be given to the insurer as a condition precedent to liability means an untoward and unforeseen occurrence in the operation of the automobile which results in injury to the person or property of another. Ohio Casualty Ins. Co. v. Marr, C.C. A.OkI., 98 F.2d 973, 975.
Connotes event which occurs without one’s foresight or expectation, and does not exclude negligente. American Indemnity Co. v. Jamison, Tex.Civ.App., 62 S.W.2d 197; without intention or design, Rothman v. Metropolitan Casualty Ins. Co., 134 Ohio St. 241, 16 N.E.2d 417, 421, 117 A.L.R. 1169.
The word "accident", requiring operator of vehicle to stop immediately in case of accident, contemplates any situation occurring on the highway wherein he so operates ,his automobile as to cause injury to the property or person of another using the same highway. State v. Masters, 106 W.Va. 46, 144 S.E. 718, 719.
Equity
Such an unforeseen event, misfortune, loss, act, or omission as is not the result of any negligence or misconduct in the party. Engler v. Knoblaugh, 131 Mo.App. 481, 110 S.W. 16.
Unforeseen and undesigned event, productive of disadvantage. Wharton. Surprise is used inter-changeably. State ex rel. Hartley v. Innes, 137 Mo.App. 420, 118 S.W. 1168.
Occurrence, not the result of negligence or misconduct of the party seeking relief in relation to a contract, as was not anticipated by the parties when the same was entered into, and which gives an undue advantage to one of them over another in a court of law. White & Hamilton Lum-ber Co. v. Foster, 157 Ga. 493, 122 S.E. 29, 30.
Insurance Con tracts
An accident within accident insurance policies is an event happening without any human agency, or, if happening through such agency, an event which, under circumstances, is unusual and not expected by the person to whom it happens. Size-more v. National Casualty Co., 108 W.Va. 550, 151 S.E. 841.
Sudden and Instant happening, referable to definite and fixed period of time. Jackson v. Employers’ Liahility As-sur. Corporation, 248 N.Y.S. 207, 210, 139 Misc. 686.
May be inflicted intentionally and maliciously by one not the agent of the insured, if unintentional on the part of the insured. Goodwin v. Continental Casualty Co., 175 Okl. 469, 53 P.2d 241, 243.
A more comprehensive term than "negligence," and in its common signification the word means an unexpected happening without intention or design. Sontag v. Calor, 279 Mass. 309, 181 N.E. 182, 183.
Accidental’ injury or death is an unintended and unde-signed result arising from acts done, while injury or cleath by "accidental menos" is a result arising from nets unin-tentionally done. Adonis v. Metropolitan Life Ins. Co., 136 Pa.Super. 454, 7 A.2d 544, 547.
Maritime Law and Marine Insurance
"Accidents of navigation" or "accidents of the sea" are such as are peculiar to the sea or to usual navigation or the action of the elements, which do not happen by the intervention of man, and are not to be’ avoided by the exercise of proper prudence, foresight, and skill. The G. R. Booth, 19 S.Ct. 9, 171 U.S. 450, 43 L.Ed. 234. See also Perils of the Sea.
Practice
That which ordinary prudence could not have guarded against. Cupples v. Zupan, 35 Idaho 458, 207 P. 328, 329. An event happening unex-pectedly and without fault; an undesigned and unforeseen occurrence of an afflictive or unfor-tunate character; a casualty or mishap. Allen v. State, 13 Okl.Cr. 533, 165 P. 748; Baird v. Ken-sal Light & Power Co., 246 N.W. 279, 282, 63 N.D. 88; drunkenness of juror during recess required discharge of jury. Fetty v. State, 119 Neb. 619, 230 N.W. 440, 442.
Workmen’s Compensation
Term "accident," within Workmen’s Compensa-tion Act, has been defined as a befalling; an event that takes place without one’s foresight or ex-pectation; an undesigned, sudden, and unexpected event; chance; contingency; often, an unde-signed and unforeseen occurrence of an afflictive or unfortunate character; casualty; mishap; as, to die by an accident. Its synonyms are chance, contingency, mishap, mischance, misfortune, dis-aster, calamity, catastrophe. Term "accidental" has been defined as happening by chance, or un-expectedly; taking place not according to the usual course of things; casual; fortuitous;
an accidental visit. Its synonyms are undesigned, unintended, chance, unforeseen, unexpected, un-premeditated; accessory, collateral, secondary, subordinate; extrinsic, extraneous, additional, adscititious, dependent, conditional. Indian Ter-ritory Illuminating Oil Co. v. Williams, 157 Okl. 80, 10 P.2d 1093, 1094.
With or without negligence. Great Atlantic Pacific Tea Co. v. Sexton, 242 Ky. 266, 46 S.W.2d 87, 88.
Not technical legal term. Arquin v. Industrial Commission, 349 Ill. 220, 181 N.E. 613, 614.
ACCIDENTAL. Happening by chance, or unex-pectedly; taking place not according to usual course of things; casual; fortuitous. Morris y. New York Life Ins. Co., C.C.A.Md., 49 F.2d 62, 63; Murphy v. Travelers Ins. Co., Neb., 2 N.W.2d 576, 578, 579.
ACCIDENTAL KILLING. One resulting from an act which is lawful and lawfully done under a reasonable belief that no harm is possible;—dis-tinguished from "involuntary manslaughter," which is the result of an unlawful act, or of a law-ful act done in an unlawful way. Rowe v. Com-monwealth, 206 Ky. 803, 268 S.W. 571, 573.
ACCIDENTAL VEIN. See Vein.
ACCIDERE. Lat. To fall; fall in; come to hand; happen. Judgment is sometimes given against an executor or administra tor to be satis-fied out of assets guando acciderint; i. e., when they shall come to hand. See Quando Acciderint.
ACCION. In Spanish law. A right of action; also the method of judicial procedure for the
recovery of property or a debt. Escriche, Dic. Leg. 49. Wilder v. Lambert, 91 Tex. 510, 44 S.W. 281, 284.
ACCIPERE QUID UT JUSTITIAM FACIAS, NON EST TAM ACCIPERE QUAM EXTORQUERE. To accept anything as a reward for doing justice is rather extorting than accepting. Lofft, 72.
ACCIPITARE. To pay relief to lords of manors. Capitali domino accipitare, i. e., to pay a relief, homage, or obedience to the chief lord on becom-ing his vassal. Fleta, lib. 2, c. 50.
ACCOLA
Civil Law
One who inhabits or occupies land near a place, as one who dwells by a river, or on the bank of a river. Dig. 43, 13, 3, 6.
Feudal Law
A husbandman; an agricultural tenant; a ten-ant os a manor. Spelman. A name given to a class of villeins in Italy. Barr. St. 302.
ACCOMENDA. In maritime law. A contract be-tween the owner of goods and the master of a ship, by which the formen intrusts the property to the latter to be sold by him on their joint ac-count.
In such case, two contracta take place: First, the con-tract called mandatum, by which the owner of the proper-ty gives the master power to dispose of it; and the con-tract of partnership, in virtue of which the profits are to be divided between them. One party runs the risk of losing bis capital; the other, bis labor. If the sale produces no more than first cost, the owner takes all the proceeds. It is only the profits which are to be divided. Emerig.Mar. Loans, §- 5.
ACCOMMODATED PARTY. One to whom the credit of the accommoclation party is loaned, and is not -necessarily the payee, since the inquiry al-ways is as to whom did the maker of the paper loan his credit as a matter of fact. Wilhoit v. Seavail, 121 Kan. 239, 246 P. 1013, 1015, 48 A.L.R. 1273; not third person who may receive advan-tage, State v. Banta, 148 Okl. 239, 299 P. 479, 483. First Nat. Bank v. Boxley, 129 Okl. 159, 264 P. 184, 186, 64 A.L.R. 588.
ACCOMMODATION. An arrangement or engage-nient made as a favor to another, not upon a con-sideration received; something done to oblige, us-ually spoken of a loan of money or commercial paper; also a friendly agreement or composition of differences. Abbott; Sales v. Martin, 173 Ky. 616, 191 S.W. 480, 482. The word implies no con-sideration. William D. Seymour & Co. v. Castell, 160 La. 371, 107 So. 143, 145.
"While a party’s intent may be to aid a maker of note by lending bis credit, If he seeks to accomplish thereby legitimate objects of bis own, and not simply to aid maker, the act is not for ‘accommodation.’ " Bazer v. Grirnmett, 16 La.App. 613, 135 So. 54, 56.
ACCOMMODATION ACCEPTANCE. The ac-ceptance of accommodation paper.
ACCOMMODATION BILL OR, NOTE. See. Ac-commodation Paper
ACCOMMODATION INDORSEMENT. See In-dorsement.
ACCOMMODATION INDORSER. A party who places his name to a note without consideration for purpose of benefiting or accommodating some other party. Stubbins Hotel Co. v. Bassharth, 43 N.D. 191, 174 N.W. 217, 218; McDaniel v. Al-toona State Bank, 126 Kan. 719, 271 P. 394.
ACCOMMODATION LANDS. Land bought by a builder or speculator, who erects houses thereon, and then leases portions thereof upon an im-proved ground-rent.
ACCOMMODATION MAKER. One who puts his name to a note without any consideration with the intention of lending his credit to the accommo-dated party. In re Chamberlain’s Estate, Cal. App., 109 P.2d 449, 454.
In this connection "without consideration" means "with-out consideration to the accommodating party directly." Warren Nat. Bank, Warren, Pa., v. Suerken, 45 Cal.App. 736, 188 P. 613, 614. One who receives no part of the pro-ceeds, which are used exclusively for another maker’s bene-fit, as in discharging his own personal obligation. Backer v. Grummett, 39 Cal.App. 101, 178 P. 312, 313. Must not
re-ceive any benefit or consideration directly or indirectly, and transaction must be one primarily for the benefit of the payee. First Trust Co. of Lincoln v. Anderson, 135 Neb. 397, 281 N.W. 796, 798; Void of present or anticipated personal profit, gain, or advantage. Robertson v. City Nat. Bank of Bowie, 120 Tex. 226, 36 S.W.2d 481, 483.
Incidental benefit to party Insufficient. Morrison v. Painter, Mo.App., 170 S.W.2d 965, 970.
ACCOMMODATION NOTE. One to which ac-commodating party has put his name, without consideration, to accommodate some other party, who is to issue it and is expected to pay it. Brown Carriage Co. v. Dowd, 155 N.C. 307, 71 S.E. ‘721, 724; Farmers Loan & Trust Co. v. Brown, 182 Iowa, 1044, 165 N.W. 70, 73.
ACCOMMODATION PAPER. An accornmoda-tion bill or note is one to which the accommodat-ing party, be he acceptor, drawer, or indorser, has put his name, without consideration, for the pur-pose of benefiting or accommodating some other party who desires te raise money on it, and is to provide for the bill when due. Miller v. Lar-ned, 103 III. 562; Crothers v. National Bank of Chesapeake City, 158 Md. 587, 149 A. 270, 272; Hickox v. Hickox, Tex.Civ.App., 151 S.W.2d 913, 917.
Must be executed for the purpose of loaning credit, and incidental benefit to party is insufficient. Morrison v. Painter, Mo.App., 17C .3.W.26 965, 970.
ACCOMMODATION PARTY. One who has signed an instrument as maker, drawer, acceptor, or indorser without receiving value therefor, and for purpose of lending his name to some other person as means of securing credit. Bachman v. Junkin, 129 Neb. 165, 260 N.W. 813.
The term does not include one who, for the accommoda-tion of the maker, guaranteed the payment of a note. Noble v. 13ceman-Spaulding-Woodward Co., 65 Or. 93, 131 P. 1006, 1010.
Indorser, Myrtllles, Inc., v. Johnson, 121 Conn. 177, 199 A. 115, 117; president and directors of bank, Davis v. Holt. Federal Deposit Ins. Corporation, Intervenor, Mo.App., 154
S.W.2d 595. 597; apparent comaker. McLendon v. Lane, 51 Ga.App. 409, 180 S.E. 746; to make note look better for payee bank, Pirtle v. Johnson, 145 Kan. 8, 64 P.2d 2, 4.
ACCOMMODATION ROAD. A road opened for benefit of certain individuals to go from and to their homes, for service of their lands, and for use of some estates exclusively. Civ.Code La. art. 706.
ACCOMMODATION TRAIN. One designed to accommodate local travel by stopping at most stations. Gray v. Chicago, M. & St. P. R. Co., 189 III. 400, 59 N.E. 950, 951. In another aspect it is a train designed to carry passengers as well as freight. White v. III. Cent. R. Co., 99 Miss. 651, 55 So. 593, 595.
ACCOMMODATION WORKS. Works which a railway company is required to make and main-tain for the accommodation of the owners or occu-piers of land adjoining the railway; e. g., gates, bridges, culverts, fences, etc. 8 Vict. c. 20, § 68.
ACCOMMODATUM. The same as commodaturn, q. 19.
ACCOMPANY. To go along with. Webster’s Dict. To go with or attend as a companion or as-sociate, to occur in association with. United States v. Lee, C.C.A.Wis., 131 F.2d 464, 466.
The word has been defined judicially in cases involving varied facts; thus, a boy driver was held not accompany-Mg the team when he was runnning to stop it. Willis v. Semmes, 111 Miss. 589, 71 So. 865, 866. A motion based on answer already deposited with the clerk of court is accompanied with copy of answer. Los Angeles County v. Lewis, 179 Cal. 398, 177 P. 154. 155. An automobile driver under sixteen is not accompanied by an adult person unless the latter exercises supervision over the driver. Rush v. McDonnell, 214 Ala. 47, 106 So. 175, 179. An unlicensed driver is not accompanied by a licensed driver unless the latter is near enough to render advice and assistance. Hughes v. New Haven Taxicab Co., 87 Conn. 416, 87 A. 721.
ACCOMPLICE. In criminal law. A person who knowingly, voluntarily, and with common intent with the principal offender Imites in the commis-sion of a crime. State v. Keithley, 83 Mont. 177, 271 P. 449, 451, People v. Frahm, 107 Cal.App. 253, 290 P. 678, 682, State v. Coroles, 74 Utah, 94, 277 P. 203, 204. One who is in some way concerned or associated in commission of crime; partaker of guilt; one who aids or assists, or is an accessory. McLendon v. U. S., C.C.A.Mo., 19 F.2d 465, 466. Equally concerned in the commission of crime. Fryman v. Commonwealth, 289 Ky. 540, 159 S.W. 24 426, 429.
An "accomplice" is one who is guilty of complicity in crime charged, either by being present and aiding or abet-ting in it, or having advised and encouraged it, though absent from place when it was committed, though mere presence, acquiescence, or silente, in the absence of a duty to act, is not enough, no mattcr how reprehensible it may be, to constitute one an accomplice. State v. Arnold, 84 Mont. 348. 275 P. 757, 700; presence unnecessary. King v. State, 135 Tex.Cr.R. 378, 120 S.W.2d 590. 592. Knowl-edge and concealment not suflIcient. Wallis v. State, Okl. Cr.App., 292 P. 1056, 1057.
Falsely denying having knowledge of crime not of itself suflicient. Tipton v. State, 126 Tex.Cr.R. 439, 72 S.W.2d 290, 293.
Black’s Law Dictionary Revised 4th Ed.-3
Thief and receiver of stolen property ordinarily not "accomplices". People v. Lima, 25 Ca1.2d 573, 154 P.2d 698, 700, 701.
Giver of bribe is an "accomplice". Turner v. State, 58 Ga.App. 775, 199 S.E. 837, 839, Contra, State v. Emory, 55 Idaho 649, 46 P.2d 67, 70.
As specifically applied to witnesses for the state and the necessity for corroborating them, "accomplice" includes all persons connected with the offense by an unlawful act or omission either before, at the time of, or after the com-mission of the offense, whether such witness was present or participated in the crime or not. Chandler v. State, 89 Tex.Cr.R. 309, 230 S.W. 1002, 1003.
Mere presence is insuflicient. Snowden v. State, 27 Ala. App. 14, 165 So. 410.
Suborned witness is an "accomplice". People v. Nicosia, 4 N.Y.S.2d 35, 37, 166 Misc. 597. Contra. State v. De Vaughn, 2 Cal.App.2d 572, 39 P.2d 223, 224.
Receiver of bribe not "accomplice" of giver. People v. Martin, 114 Cal.App. 392, 300 P. 130, 132.
The term includes all the participes criminis, Darden v. State, 12 Ala.App. 165, 68 So. 550, 551, whether they are considered, in strict legal propriety, as principals in the first or second degree, or merely as accessories before or after the fact. In re Rowe, 23 C.C.A. 103, 77 F. 161; Luck v. State, 125 Tex.Cr.R. 152, 67 S.W.2d 302. But in Ken-tucky it has been held that "accomplice" does not include an accessory after the fact. See, however, Commonwealth v. Barton, 153 Ky. 465, 156 S.W. 113, 114. And the same rule has been announced elsewhere. State v. Lyons, 144 Minn. 348, 175 N.W. 689, 691. A feigned accomplice has been defined as one who co-operates with view of aiding justice to detect a crime. State v. Verganadis, 50 Nev. 1, 248 P. 900, 903; Decoy not "accomplice". U. S. v. Becker, C.C.A.N.Y., 62 F.2d 1007, 1009.
Liquor control board inspector, Magee v. State, 135 Tex. Cr.R. 381, 120 S.W.2d 248, 249.
ACCORD, n. A satisfaction agreed upon between the party injuring and the party injured which, when performed, is a bar to all actions upon this account. Kromer v. Heim, 75 N.Y. 576, 31 Am. Rep. 491; Buob v. Feenaughty Machinery Co., 191 Wash. 477, 71 P.2d 559, 564. An agreement to accept, in extinction of an obligation, something different from or less than that to which the per-son agreeing to accept is entitled. Whepley Oil Co. v. Associated Oil Co., 6 Cal.App.2d 94, 44 P.2d 670, 677.
Substitution of an agreement between the party injur-ing and the party injured, in vlew of the original obliga-tion. Barbarich v. Chicago, M., St. P. & P. Ry. Co., 92 Mont. 1, 9 P.2d 797, 799.
It may arise hoth where the demand itself is unliqui-dated or in dispute. and where the amount and nature of the demand is undisputed, and it is agreed tu give and take less than the demand. J. F. Morgan Paving Co. v. Carroll, 211 Ala. 121, 99 So. 640, 641.
"Payment," as distinguished from accord, means full satisfaction. State v. Tyler County State Bank, Tex.Com. App., 277 S.W. 625, 627, 42 A.L.R. 1347.
See Accord and Satisfaction; Compromise and Settlement.
ACCORD, v. In practice. To agree or concur, as one judge with another. "I accord." Eyre, C. J., 12 Mod. 7. "The rest accordéd." 7 Mod. 361.
ACCORD AND SATISFACTION. An agreement between two persons, one of whom has a right of action against the other, that the latter should do or give, and the former accept, something in sat-isfaction of the right of action different from, anci usually less than, what might be legally enforced.
When the agreement is executed, and satisfaction has been made, it is called "accord and satisfac-tion." Rogers v. Spokane, 9 Wash. 168, 37 P. 300.
It is discharge of contract, or of disputad claim arising either from contract or from tort, by substitution of agree-ment between parties in satisfaction of such contract or disputed claim and execution of the agreement. Nelson y. Chicago Mill & Lumber Corporation, C.C.A.Ark., 76 F.2d 17, 100 A.L.R. 87.
"Accord and satisfaction" results where there is assent to acceptance of payment in compromise of dispute, or in extinguishment of liability uncertain in amount, or where payment, coupled with condition whereby use of money will be wrongful if condition is ignored, is accepted. Hud-son v. Yonkers Fruit Co., 258 N.Y. 168, 179 N.E. 373. Regardless of whether claim is liquidated or unliquidated. May Bros. v. Doggett, 155 Miss. 849, 124 So. 476, 478.
Settlement of claims under insurance noticies. Lehaney v. New York Life Ins. Co., 307 Mich. 125, 11 N.W.2d 830, 832.
Accepted amount tendered by insurer as cash surrender value of policies. Greenberg v. Metropolitan Life Ins. Co., 379 III. 421, 41 N.E.2d 495, 497, 140 A.L.R. 775.
See, also, Sierra & San Francisco Power Co. v. Uni-versal Electric & Gas Co., 197 Cal. 376, 241 P. 76, 80.
More recently, a broader application of the doctrine has been made, where one promise or agreement is set up in satisfaction of another. Continental Nat. Bank v. Mc-Geoch, 92 Wis. 286, 66 N.W. 606.
An "accord and satisfaction arises" where parties, by a subsequent agreement, have satisfied the formar one, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction, where it is so expressly agreed by the parties; and with-out such agreement, if the new promise is founded on a new consideration, in which case the taking of the new consideration amounts to the satisfaction of the formar contract.
A dispute or controversy is not an essential element of ‘some forms of accord and satisfaction, as an accord and satisfaction of a liquidated claim by the giving and accept-ance of a smaller sum and some additional consideration, such as new security, payment of the debt before due, payment by a third person, or where property or personal services are accepted from an insolvent debtor in satis-faction. Burgamy v. Holton, 165 Ga. 384, 141 S.E. 42, 47.
"Composition settlement" contemplates agreement not only between debtor and creditors, but also among credi-tors, whereas "accord and satisfaction" is agreement between debtor and single creditor. Russell v. Douget, La.Anp., 171 So. 501, 502.
"Novation" is a species of "accord and satisfaction". Munn v. Town of Drakesville, 226 Iowa 1040, 285 N.W. 644, 648.
See Acceptance; Composition; Compromise; Novation.
ACCORDANCE. Agreement; harmony; con-cord; conformity. Webster, Dict.; City and County of San Francisco v. Boyd, 22 Ca1.2d 685,
140 P.2d 666, 668.
An act done .in accordance with a purpose once formed is not necessarily an act done in pursuance of such pur-pose, for the purpose may have been abandoned before the act was done. State v. Robinson,. 20 W. Va. 713, 742. A charter providing that a city’s power of taxation shall be exercised "in accordance with" the state Constitution and laws means in a manner not repugnant to or in conflict or inconsistent therewith. City of Norfolk v. Norfolk Landmark Pub. Co., 95 Va /564, 28 S.E. 959. 960. The words "in accordance with this act" as used in N. M. Laws 1899, c. 22, § 25, dealing with validity of tax titles, was not improperly interpreted as meaning "under this act." Straus v. Foxworth, 231 U.S. 162, 34 S.Ct. 42, 44, 58 L.Ed. 168.
ACCORDANT. Fr. and Eng. Agreeing; con-eurring. "Baron Parker, accordant," Hardr. 93
"Holt, C. J., accordant," 6 Mod. 299; "Powys, J., accord," "Powell, J., accord," Id. 298.
ACCOUCHEMENT. The act of a woman in giv-ing birth to a child. The fact of the accouche-ment, which may be proved by the direct testi-mony of one who was present, as a physician or midwif e, is of ten important evidence in proving parentage.
ACCOUNT. A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation. Portsmouth v. Donaldson, 32 Pa. 202, 72 Am.Dec. 782.
A statement in writing, of debts and credits, or of receipts and payments; a list of items of debts and credits, with their respective dates. Rens-selaer Glass Factory v. Reid, 5 Cow., N.Y., 593.
An "account" is defined as a statement of pecuniary transactions; a record or course of business dealings between parties; a list or statement of monetary transac-tions, such as payments, losses, sales, debits, credits, etc., in most cases showing a balance or result of comparison between items of an opposite nature; and is not held to include a liability for unliquidated damages resulting from the breach of an entire contract, expressIng only an entire consideration. Harnischfeger Sales Corporation v. Piekering Lumber Co., C.C.A.Mo., 97 F.2d 692, 695.
The word is sometimes used to denote the balance, or the right of action for the balance, appearing due upan a statement of dealings; as where one speaks of an assign-ment of accounts; but there is a broad distinction between an account and the -itere balance of an account, resembling the distinction in logic between the premises of an argu-ment and the conclusions drawn therefrom. A balance is but the conclusion or result of the debit and credit sides of an account. It implies mutual dealings, and the exist-ence of debt and credit, without which there could be no balance. McWilliams v. Allan, 45 Mo. 574.
A generic terco, difficult to define, having various mean-ings, depending sornewhat upen the surrounding circum-stances and the connection in which it is used. Wolcott & Lincoln v. Butler, 155 Kan. 105, 122 P.2d 720, 722, 141 A.L.R. 356.
Flexible in meaning, meaning valuation; worth; value. Ex parte Means, 200 Ala. 378, 76 So. 294; may refer either to past or futura indebtedness, Semel v. Braun, 157 N.Y. S. 907, 908, 94 Misc. 238; an itemized account, Brooks v. International Shoe Co., 132 Ark. 386, 200 S.W. 1027.
Closed
An account to which no further additions can be made on either side, but which remains stil• open for adjustment and set-off, which distinguish-es it from an account stated. Mandeville v. Wil-son, 5 Cranch 15, 3 L.Ed. 23.
Current
An open or running or unsettled account be-tween two parties; the antithesis of an account stated. See Watson v. Gillespie, 200 N.Y.S. 191, 198, 205 App.Div. 613; Caffarelli Bros. v. Lyons Bros. Co., Tex.Civ.App., 199 S.W. 685, 686; Con-tinental Casualty Co. v. Easley, Tex.Civ.App., 290 S.W. 251, 253.
An "account current" is an active checking account. through which credit and debit items are constantly pass-ing. In re Fricke’s ‘Will, 202 N.Y.S. 906, 912, 122 Misc. 427.
All items must constitute one demand. Meyers v.. Bar-rett & Zimmerman, 196 Minn. 276, 264 N.W. 769, 773
Duties
Duties payable by the English customs and in-land revenue act, 1881, (44 Vict. c. 12, § 38,) on a donatio mortis causa, or on any gift, the donor of which dies within three months after making it, or on joint property voluntarily so created, and taken by survivorship, or on property taken under a voluntary settlement in which the settlor had a life-interest
Mutual
Accounts comprising mutual credits between the parties; or an existing credit on one side which constitutes a ground for credit on the other, or where there is an unclerstanding that mutual debts shall be a satisfaction or set-off pro tanto between the parties. McConnell v. Arkansas Cof-fin Co., 172 Ark. 87, 287 S.W. 1007.
Open
An account which has not been finally settled or closed, but is still running or open to future ad-justment or liquidation. Open account, in legal as well as in ordinary language, means an indebt-edness subject to future adjustment, and which may be reduced or modified by proof. James v. Lederer-Strauss & Co., 32 Wyo. 377, 233 P. 137, 139.
An open account can become an account stated only by the debtor’s admission of liability, or failure to deny lia-bility for a reasonable time after receipt of account. Brooks v. White, 187 N.C. 656, 122 S.E. 561.
Payable
An account which has not been finally settled or closed, but is still running or open to future ad-justment or liquidation. Open account, in legal as well as in ordinary language, means an indebt-edness subject to future adjustment, and which may be reduced or modified by proof. James v. Lederer-Strauss & Co., 32 Wyo. 377, 233 P. 137, 139.
An open account can become an account stated only by the debtor’s admission of liability, or failure to deny lia-bility for a reasonable time after receipt of account. Brooks v. White, 187 N.C. 656, 122 S.E. 561.
Payable
"Accounts payable" are contract obligations ow-ing by a person on open account. West Virginia Pulp & Paper Co. v. Karnes, 120 S.E. 321, 322, 137 Va. 714; State Tax Commission v. Shattuck, 38 P.2d 631, 63l, 44 Ariz. 379
Public
The accounts kept by officers of the nation, state, or kingdom, of the receipt and expenditure of the revenues of the government.
Rendered
An account made out by the creditor, and pre-sented to the debtor for his examination and ac-ceptance. When accepted, it becomes an account stated. Freeland v. Cocke, 17 Va. (3 Munf.) 352.
Settled
One in which the balance has been in fact paid, thereby differing from an account stated. See Dempsey v. McGinnis, 219 S.W. 148, 150, 203 Mo. App. 494
Stated
The settlement of an account between the par-ties, with a balance struck in favor of one of them; an account rendered by the creditor, and by the debtor assented to as correct, either ex-pressly, or by implication of law from the failpre to object. Preston v. La Belle View Corporation, 212 N.W. 286, 288, 192 Wis. 168.
Monthly statements rendered by bank without deposi-tor’s objection, Pierce & Gamet v. Live Stock Nat. Bank, 213 Iowa 1388, 239 N.W. 580, 583.
Unperformed promise of one party to pay a stated sum. Hammond Lumber Co. v. Richardson Building & Lumber Co., 209 Cal. 82, 285 P. 851, 853.
An agreement between parties who have had previous transactions of a monetary character that all the items of the account representing such transactions, and the bal-ance struck, are correct, together with a promise, express or implied, for the payment of such balance. Pelavin v. Fenton, Davis & Boyle, 255 Mich. 680, 239 N.W. 268, 269.
No particular form is necessary; it may be oral, writ-ten, partly oral and partly written. Murphy v. Smith, 26 Ariz. 394, 226 P. 206, 208. An account stated is not ordi-narily recognized in Virginia and West Virginia, except as between merchant and merchant, and principal and agent, with mutual accounts. Price Hill Colliery Co. v. Pinkney, 96 W.Va. 74, 122 S.E. 434, 436. This was also a common count in a declaration upon a contract under which the plaintiff might prove an absolute acknowledg-ment by the defendant of a liquidated demand of a fixed amount, which implies a promise to pay on request. It might be joined with any other count for a money demand. The acknowledgment or admission must have been made to the plaintiff or hls agent. Wharton.
ACCOUNT, or ACCOUNT RENDER. In prae-tice. "Account," sometimes called "account ren-der," was a form of action at common law against a person who by reason of some fiduciary relation (as guardian, bailiff, receiver, etc.) was bound to render an account to another, but refused to do so. Portsmouth v. Donaldson, 32 Pa. 202, 72 Am.Dec. 782; Peoples Finance & Thrift Co. of Visalia v. Bowman, 137 P.2d 729, 731, .58 Cal.App.2d 729.
"Action of account" is common-law action to compel person to render account for property or money of another. Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606, 609. Equita-ble in nature. Gaines Bros. Co. v. Gaines, 188 Okl. 300, 108 P.2d 177, 179.
In England, this action early fell into disuse; and as it is one of the most dilatory and expensive actions known to the law, and the parties are held to the ancient rules of pleading, and no discovery can be obtained, it never was adopted to any great extent in the United States. But in some states this action was employed, chiefly because there were no chancery courts in which a bill for an accounting would lie. The action is peculiar in the fact that two judgments are rendered, a preliminary judgment that the defendant do account with the plaintiff (quod computet) and a final judgment (quod recuperet) alter the account-ing for the balance found due. Field v. Brown, 146 Ind. 293, 45 N.E. 464, 16 Blatchf. 178.
ACCOUNT-BOOK. A book kept by a merchant, trader, mechanic, or other person, in which are entered from time to time the transactions of his trade or business. Greenl. Ev. §§ 115-118.
Volumes bound or sewed together in which accounts are regularly kept, and excluding collections of loose and inde-terminate memoranda. W. T. Raleigh Co. v. Rotenberry, 174 Miss. 319, 164 So. 5, 6. May now include modern book of detachable leaves, but leaves must be of such appropri-ate uniformity of material as reasonably to constitute leaves of account book in which they are contained. W. T. Raleigh Co. v. Rotenberry, 174 Miss. 319, 164 So. 5, 6.
ACCOUNT COMPUTATIO. The primary idea of "account computatio", whether in proceedings of courts of law or equity, is some matter of debt and credit, or demand in nature thereof. Cole-man v. Kansas City, 351 Mo. 254, 173 S.W.2d 572, 576.
ACCOUNT FOR. To pay over the money to the person entitled thereto. U. S. v. Rehwald, D.C. Cal., 44 F.2d 663
ACCOUNT IN BANK. See Bank Account.
ACCOUNTABLE. Subject to pay; responsible; Hable. Where one indorsed a note "A. C. account-able," it was held that, under this forro of indorse-ment, he had waived demand and notice. Furber v. Caverly, 42 N.H. 74.
ACCOUNTABLE RECEIPT. An instrument ac-knowledging the receipt of money or personal property, coupled with an obligation to account for or pay or deliver the whole or some part of it to some person. State v. Riebe, 7 N.W. 262, 27 Minn. 315.
ACCOUNTANT. One who keeps accounts; a person skilled in keeping books or accounts; an expert in accounts or bookkeeping. See U. S. ex rel. Liebmann v. Flynn, D.C.N.Y., 16 F.2d 1006, 1007; Frazer v. Shelton, 150 N.E. 696, 701, 320 III. 253.
One competent to design and control systems of accounts. Roberts v. Hosking, 95 Mont. 562, 28 P.2d 199, 201.
A person who renders an account: an executor, guard-lan, etc.
ACCOUNTANT GENERAL, or ACCOMPTANT GENERAL. An officer of the court of chancery, appointed by act of parliament to receive all money lodged in court, and to place the same in the Bank of England for security. 12 Geo. I. c. 32; 1 Geo. IV, c. 35; 15 & 16 Vict. c. 87, §§ 18-22, 39. See Daniell, Ch.Pr. (4th Ed.) 1607 et seq. The office, however, has been abolished by 35 & 36 Vict. c. 44, and the duties transferred to her majesty’s paymaster general.
ACCOUNTANTS, CHARTERED. Persons skilled in the keeping ami examination of accounts, who are employed for the purpose of examining and certifying to the correctness of accounts of cor-porations and others. British Commonwealth equivalent of Certified Public Accountant.
ACCOUNTING. An act or system of making up or settling accounts; a statement of account, or a debit and credit in financial transactions. Kan-sas City v. Burns, 137 Kan. 905, 22 P.2d 444.
Rendition cf an account, either voluntarily or by order of a court. Buxton y. Edwards, 134 Mass. 567, 578. In the latter case, it imports a rendition of a judgmcnt for the
balance ascertained to be due. Apple y. Smith. 106 Kan. 717, 190 P. 8, 10. The term may include payment of the amount due. Pyatt v. Pyatt, 46 N.J.Eq. 285, 18 A. 1048.
ACCOUNTS RECEIVABLE. Contract obligations owing to a person on open account. West Vir-ginia Pulp & Paper Co. v. Karnes, 137 Va. 714, 120 S.E. 321, 322; charge accounts, Haverfiekl Co. v. Evatt, 143 Ohio St. 58, 54 N.E.2d 149, 152, in-stallment balances, Duke Power Co. v. IIillsbor-ough Tp., Somerset County, 20 N.J.Misc. 240, 26 A.2d 713, 725.
ACCOUPLE. To unite; to marry. Ne unques accouple, never married.
ACCREDIT. In international law. (1) To ac-knowledge; to receive as an envoy in his public
character, and give him credit and rank accord-ingly. Burke. (2) To send with credentials as an envoy. Webst.Dict. This latter use is now the accepted one.
ACCREDITED LAW SCHOOL. "An accredited law school" and a "law school approved by this court," are synonymous. Ex parte ‘State Board of Law Examiners of Florida, 141 Fla. 706, 193 So. 753.
ACCREDITED REPRESENTATIVE. As respects service of process, representative having general authority to act. Rorick v. Stilwell, 101 Fla. 4, 133 So. 609, 615.
ACCREDULITARE. L. Lat. In old records. To purge an offense by oath. Blount; Whishaw.
ACCRESCERE. In the civil and old English law. To grow to; to increase; to pass to, and become united with, as soil to land per alluvionem. Dig. 41, 1, 30, pr. The term is used in speaking of islands which are formed in rivers by deposit; Calvinus, Lex.; 3 Kent 423. It is used in a re-lated sense in the common-law phrase jus aceres-candi, the right of survivorship; 1 Washb.R.P. 426.
Pleading
To commence; to arise; to accrue. Quod actio non accrevit infra sex anos, that the action did not accrue within six years; 3 Chit.P1. 914.
ACCRETION. The act of growing to a thing; usually applied to the gradual and imperceptible accumulation of land by natural causes, as out of the sea or a river.
Civil Law
The right of heirs or legatees to unite or aggre-gate with their shares or portions of the estate the portion of any co-heir or legatee who ref uses to accept it, fails tu comply with a condition, be-comes incapacitated to inherit, or dies before the testator. Anderson v. Lucas, .204 S.W. 989, 993, 140 Tenn. 336. Under a deed of trust: Miller v. Douglass, 192 Wis. 486, 213 N.W. 320, 322.
Mortgages
As used in a mortgage on cattle, with all in-crease thereof and accretions thereto, the word "accretions" is not confined to the results of nat-ural growth, but includes the additions of parts frorri without, i. e., of cattle subsequently ¿-Heti to the herd. Stockyards Loan Co. v. Nichols, C.C.A.Okl., 243 F. 511, 513, 1 A.L.R. 547.
Realty
Addition of portions of son. by gradual deposi-tion through the operation of natural causes, tu that already in possession of owner. St. Louis, etc., R. Co. v. Ramsey. 53 Ark. 314, 13 S.W. 931, 8 L.R.A. 559, 22 Am.St.Rep. 195; 51 L.R.A. 425, n.; Willett v. Miller, 176 Okl. 278, 55 P.2d 90, 92. Along banks of navigable or unnavigable stream. Smith v. Whitney, 105 Mont. 523, 74 P.2d 450, 453, change in river boundary, Hancock v. Muere, Tex.Civ.
filled was not an "accretion". City of Newport Beach v. Fager, 39 Cal.App.2d 23, 102 P.2d 438, 442.
Accretion of land is of two kinds : By allavion, i. e., by the washing up of sand or soil, so as to form firm ground; or by dereliction. as when the sea shrinks below the usual water-mark. The term "alluvion" is applied to deposit itself, while "accretion" denotes ,the act. However, the terms are frequently used synonyncously. Katz v. Patter-son, 135 Or. 449, 296 P. 54, 55. In deterrnining whether change in course of river is by "accretion" or "avulsion," test is not whether witnesses might see from time to time that progress has been made, but whether witnesses could perceive change while it was going on. Goins v. Merry-man, 183 Okl. 155, 80 P.2d 268, 270. Land uncovered by gradual subsidence of water is not an "accretion" but a "reliction." Independent Stock Farm v. Stevens, 128 Neb. 619, 259 N.W. 647, 648.
Trust Property
Receipts other than those ordinarily considered as income; and ordinary cash dividends, the solo income, were not accretions. Doty v. C. I. R., C.C. A.1, 148 F.2d 503, 505.
See Accrue; Avulsion; Alluvion; Reliction.
ACCROACH. To encroach; to exercise power without due authority. In French law, to delay. Whishaw.
To attempt to exercise royal power. 4 BI.Comm. 76. A knight who forcibly assaulted and detained one of the king’s subjects di’ he paid him a sum of money was held to have committed treason, on the ground of accroach-ment. 1 Hale, P.C. 80.
ACCROCHER. Fr. To delay; retard; put off. Accrocher un procés, to stay the proceedings in a suit.
ACCRUAL, CLAUSE OF. See Accruer, Clause of.
ACCRUAL BASIS. A method of keeping accounts which shows expenses incurred and income earned for a given period, although such expenses and income may not have been actually paid or re-ceived in cash. Orlando Orange Groves Co. v. Hale, 119 Fla. 159, 161 So. 284.
Right to receive and not the actual receipt determines inclusion of amount in gross income. When right tu recelve an amount becomes fixed, right accrues. H. Liebes & Co. v. Commissioner of Internal Revenue, C.C.A.9, 90 F.2d 932, 937. Obligations payable to or by taxpayer are treated as if discharged when incurred. H. Liebes & Co. v. Commissioner of Internal Revenue. C.C.A.9, 90 F.2d 932, 936. Entries are made of credits and debits when liability arises, whether received or disbursed. Insurance Finance Corporation v. Commissioner of Internal Revenue. C.C.A.3, 84 F.2d 382. Books showing sales by accounts receivable and purchases by accounts payable, and set up inventories at beginning and end of year. Consolidated Tea Co. v. Bowers, D.C.N.Y., 19 F.2d 382.
ACCRUE. Derived from the Latin, "ad" and "creso," to grow to. In past tense, in sense of due and payable; vested. It means to increase; to augment; to come to by way of increase; to be added as an increase, profit, or damage. Harts-field Co. v. Shoaf, 184 Ga. 378, 191 S.E. 693, 695. Acquired; fell due; made or executed; matured; occurred; received; vested; was created; was incurred. H. Liebes & Co. v. Commissioner of
Internal Revenue, C.C.A.9, 90 F.2d 932, 936. To attach itself to, as a subordinate or accessory claim or demand arises out of, and is joined its principal. Lifson v. Commissioner of Internal Revenue, C.C.A.8, 98 F.2d 508.
Produce of money lent. "Interest accrues to principal." Weiss v. Cornmissioners of Land Office, 182 Okl. 39, 75 P.2d 1142, 1144. Costs accrue tu a judgment.
The term is also used of independent or original demands, and then means to arise, to happen, to come into force or existence; to vest; as in the phrase, "The right of action clid not accrue within six years." Amy v. Dubu-que. 98 U.S. 470, 476, 25 L.Ed. 228. Tu -become a present right or demand; tu come to pass. II. Liebes & Co. v. Commissioner of Internal Revenue, C.C.A.9, 90 F.2d 932, 936.
It is distinguished from sustain; Adams v. Brown, 4 Litt. (Kv.) 7; and from owing; Cross v. Partenheimer, 159 Pa. 556, 28 A. 370; l’ay v. Honoran, 35 Barb. (N. Y.) 295; it is also distinguished from arise; State v. Circuit Court of Waushara County, 165 Wis. 387, 162 N.W. 436, 437.
Cause of Action
A cause of action "accrues" when a suit may be maintained thereon. Dillon v. Board of Pen-sion Com’rs of City of Los Angeles, 18 Ca1.2d 427, 116 P.2d 37, 39, 136 A.L.R. 800. Whenever one person may sue another. Hensley v. Conway, Tex.Civ.App., 29 S.W.2d 416, 418.
Cause of action "accrues," on date that damage is sus-tained and not date when causes are set in motion which ultimately produce injury. City of Philarlelphia v. Lieber-man, C.C.A.Pa., 112 F.2d 424, 428. Date of injury. Fred-ericks v. Town of Dover, 125 N.J.L. 288, 15 A.2d 784, 787. When actual damage has resulted. National Lead Co. v. City of New York, C.C.A.N.Y., 43 F.2d 914, 916. As soon as contract is breached. Wichita Nat. Bank v. United States Fidelity & Guaranty Co., Tex.Civ.App., 147 S.W.2d 295, 297.
Contracts
The word accrued, as used in reference to con-tracts in which process may be sent out of the country to be served, has reference to the place where the contract was made and executed. Phelps v. McGee, 18 III. 155, 158.
Taxation
Income "accrues" to taxpayer when there arises to him a fixed or unconditional right to receive it. Franklin County Distilling Co. v. Commissioner of Internal Revenue, C.C.A.6, 125 F.2d 800, 804, 805. But not unless there is a reasonable expectancy that the right will be converted into money or its equivalent. Swastika Oil & Gas Co. v. Commis-sioner of Internal Revenue, C.C.A.6, 123 F.2d 382, 384.
Where taxpayer makes returns on accrual basis, item "accrues" when all events occur which fix amount payable and determine liability of tax-payer. Hudson Motor Car Co. v. U. S., Ct.C1,, 3 F. Supp. 834, 847.
Tax "accrues" for deduction when all events have occurred which fix amount of tax and deter-mine liability of taxpayer for it, although there has not yet been assessment or maturity. Elm-hirst v. Duggan, D.C.N.Y., 14 F.Supp. 782, 784.
Estate tax "accrued," immediately on death, though not payable until one year thereaf ter. Ewbank v. U. S., C.C.A.Ind., 50 F.2d 409
sation, due and payable. Wood Coal Co. v. State Compensation Com’r, 119 W.Va. 581, 195 S.E. 528, 529.
ACCRUED DEPRECIATION. The lessened serv-ice value of the utility plant due to its consump-tion in furnishing service. Wisconsin Telephone Co. v. Public Service Commission, 232 Wis. 274, 287 N.W. 122, 152. Portion of useful service life which has expired. State ex rel. City of St. Louis v. Public Service Commission, 341 Mo. 920, 110 S. W.2d 749, 768.
ACCRUED RIGHT. As used in Constitution, a matured cause of action, or legal authority to de-mand redress. Morley v. Hurst, 174 Okl. 2, 49 P. 2d 546, 548.
ACCRUER (or ACCRUAL), CLAUSE OF. An ex-press clause, frequently occurring in the case of gifts by deed or will to persons as tenants in common, providing that upon the death of one or more of the beneficiaries his or their shares shall go to the survivor or survivors. Brown. The share of the decedent is then said to accrue to the others.
ACCRUING. Inchoate; in process of maturing. That which will or may, at a future time, ripen into a vested right, an available demand, or an existing cause of action. FIartsfield Co. v. Shoaf, 184 Ga. 378, 191 S.E..693, 695. Arising by way of increase, growth or profit. It connotes continuing growth, increase or augmentation. Globe Indem-nity Co. v. Bruce, C.C.A.Okl., 81 F.2d 143, 153.
ACCRUING COSTS. Costs and expenses incurred after judgment.
ACCRUING INTEREST. Running or accumulat-ing interest, as distinguished from accrued or matured interest; interest daily accumulating on the principal debt but not yet due and pagable. Gross v. Partenheimer, 159 Pa. 556, 28 A. 370.
ACCRUING RIGHT. One that is increasing, en-larging, or augmenting. Richards v. Land Co., 54 F. 209, 4 C.C.A. 290.
ACCT. An abbreviation for "account," of such universal and immemorial use that the courts will take judicial notice of its meaning. Heaton v. Ainley, 108 Iowa, 112, 78 N.W. 798.
ACCUMULATED PROFITS. Earned surplus or undivided profits. Flint v. Commissioner of Cor-porations and Taxation, 43 N.E.2d 789, 791, 792, 312 Mass. 204.
Include profits earned and invested. Commissioner of Corporations and Taxation v. Filoon, 310 Mass. 374, 38 N.E.2d 693, 698, 700.
And they take into account losses, as well as gains. Com-missioner of Corporations and Taxation v. Church, Mass., 61 N.E.2d 143, 145.
ACCUMULATED SURPLUS. In statutes relative to the taxation of corporations, this term refels to the fund which the company has in excess of its capital and liabilities. Trenton Iron Co. v.
Yard, 42 N.J.Law, 357; People’s F. Ins. Co. v. Parker, 34 N.J.Law, 479, 35 N.J.Law, 575. See Earnings.
ACCUMULATIONS. Increase by continuous or repeated additions, or, if taken literally, means either profit accruing on sale of principal assets, or increase derived from their investment, or both. In re Wells’ Will, 300 N.Y.S. 1075, 1078, 165 Misc. 385.
Adding of interest or income of a fund to prin-cipal pursuant to provisions of a will or deed, preventing its being expended. In re Watson’s Will, 258 N.Y.S. 755, 144 Misc. 213.
When an executor or other trustee masses the rents, dividends, and other income which he receives, treats it as a capital, invests it, makes a new capital of the income derived therefrom, invests that, and so on, he is said to accumulate the fund, and the capital and accrued income thus procured constitute accumulations. Hussey v. Sar-gent, 116 Ky. 53, 75 S.W. 211, In re Rogers’ Estate, 179 Pa. 609, 36 A. 340. See Perpetuity.
ACCUMULATIVE. That which accumulates, or is heaped up; additional. Said of several things heaped together, or of one thing added to an-other.
ACCUMULATIVE JUDGMENT. Where a person has already been convicted and sentenced, and a second or additional judgment is passed against him, the execution of which is postponed until the completion of the first sentence, such second judgment is said to be accumulative.
As to accumulative "Legacy," see that title.
ACCUMULATIVE LEGACY. A second, double or additional legacy; a legacy given in addition to another given by the same instrument, or by another instrument.
ACCUMULATIVE SENTENCE. •A sentence, ad-ditional to others, imposed on a defendant who has been convicted upon an indictment containing several counts, each of such counts charging a distinct offense, or who is under conviction at the same time for several distinct offenses; one of such sentences to begin at the expiration of an-other. Carter v. Mclaughry, 183 U.S. 365, 22 S. Ct. 181, 46 L.Ed. 236; State v. Hamby, 126 N.C. 1066, 35 S.E. 614; Braudon v. Mackey, 122 Kan. 207, 251 P. 176, 177.
ACCUSARE NEMO SE DEBET, NISI CORAM DEO. No one is bound to accuse himself, except before God. See Hardres, 139.
ACCUSATION. A formal charge against a per-son, to the effect that he is guilty of a punishable offense, laid before a court or magistrate having jurisdiction to inquire into the alleged crime. Coplon v. State, 15 Ala.App. 331, 73 So. 225, 228. See Accuse.
"Accusation" is equivalent of "information" at common law which is mere allegation of prosecuting officer by whom it is preferred. Sutton v. State, 54 Ga.App. 349, 188 S.E. 60, 62.
ACCUSATOR POST RATIONABILE TEMPUS NON EST AUDIENDUS, NISI SE BENE DE OMISSIONE EXCUSAVERIT. Moore, 817. An accuser ought not to be heard after the expiration.
of a reasonable time, unless he can account satis-factorily for the delay.
ACCUSATORY PART. The "accusatory part" of an indictment is that part where the offense is named. Deaton v. Commonwealth, 220 Ky. 343, 295 S.W. 167, 168.
ACCUSE. To bring a formal charge against a person, to the effecf that he is guilty of a crime or punishable offense, before a court or magis-trate having jurisdiction to inquire into the al-leged crime. People v. Frey, 112 Mich. 251, 70 N W. 548.
In its popular sense "accusation" applies to all deroga-tory charges or imputations, whether or not they relate to a punishable legal offense, and however made, whether orally, by newspaper, or otherwise. People v. Braman, 30 Mich. 460. But in legal phraseology, it is limited to such accusations as have taken shape in a prosecution. United States v. Patterson, 150 U.S. 65, 14 S.Ct. 20, 37 L.Ed. 999.
ACCUSED. "Accused" is the generic name for the defendant in a criminal case, and is more ap-propriate than either "prisoner" or "defendant." 1 Car. & K. 131.
The person against whom an accusation is made; one who is charged with a crime or misdemeanor. See People v. Braman, 30 Mich. 468. The terco cannot be said to apply to a defendant in a civil action; Castle v. Houston, 19 Kan. 417, 37 Am.Rep. 127; and see Mosby v. Ins. Co., 31 Gratt. (Va.) 629.
ACCUSER. The person by whom an accusation is made.
ACCUSTOMED. Habitual; often used; synony-mous with usual; Farwell v. Smith, 16 N.J.Law, 133.
ACEPHALL The levelers in the reign of Hen. I.. who acknowledged no head or superior. Leges H. 1; Cowell. Also certain ancient heretics, who ap-peared about the beginning of the sixth century, and asserted that there was but one substance in Christ, and one nature. Wharton; Gibbon, Rom. Emp. ch. 47.
ACEQUIA. A ditch, channel, or canal, through which water, diverted from its natural course, is conducted, for use in irrigation or other purposes; public ditches. Comp.L.N.Mex. tit. 1, c. 1, § 6 (Comp.St.1929, §§ 151-401).
ACHAT, also ACHATE, ACHATA, ACHET. In French law. A purchase or bargain. Cowell.
It is used in some of our law-books, as well as achetor, a purchaser, which in some ancient statutes means pur-
veyor. Stat. 36 Edw. III; Merlin, Répert.
ACHERSET. In old- English law. A measure of grain, conjectured to have been the same with our quarter, or eight bushels. Cowell.
ACHIEVE SUBJECT MATTER. The English equivalent for patentability. Mesta Mach. Co. v. Federal Machine & Welder Co., C.C.A.Pa., 110 F. 2d 479, 480.
ACKNOWLEDGE. To own, avow, or admit; to confess; to recognize one’s acts, and assume the
ACKNOWLEDGMENT. To "acknowledge" is to admit, afflrm, declare, testify, avow, confess, or own as genuine. Favello v. Bank of America Nat. Trust & Savings Ass’n, 24 Cal.App.2d 342, 74 P.2d 1057,1058.
Child
An avowal or admission that the child is one’s own; recognition of a parental relation, either by a written agreement, verbal declarations or state-ments, by the life, acts, and conduct of the parties, or any other satisfactory evidente that che rela-tion was recognized and admitted. In re Spencer, Sur., 4 N.Y.S.,395; In re Hunt’s Estate, 33 N.Y.S. 256, 86 Hun, 232.
Parents formally acknowledged child. during ceremony in which both marriage and baptism took place. Cormier v. Cormier, 185 La. 968, 171 So. 93, 97, 98. Letter to regis-trar of college where child was student. In re Horne’s • Estate, 149 Fla. 710, 7 So.2d 13, 16.
The "public acknowledgment" of paternity, under Civ. Code Cal. § 230, is the opposite of private acknowledg-ment, and means the same kind of acknowledgment a father would make of his legitimate child. In re Baird’s Estate, 193 Cal. 225, 223 P. 974, 994.
Generally
Implying obligation or incurring responsibility. Weyerhaeuser Timber Co. v. Marshall, C.C.A. Wash., 102 F.2d 78, 81.
Act of a person who avows or admits the truth of certain facts which, if estabiished, will entail a civil liabi]ity upon him. Thus, the debtor’s acknowledgment of the creditor’s demand or right of action will toll the statute of limita-tions. Ft. Scott v. Hickman, 112 U.S. 150, 163, 5 Sup.Ct. 56, 28 L.Ed. 636; Letters, Leffek v. Luedeman, 95 Mont. 457, 27 P.2d 511, 91 A.L.R. 286; Lincoln-Al]iance Bank & Trust Co. v. Fisher, 286 N.Y.S. 722, 247 App.Div. 465; pay-ments. Erskine v. Upham, 56 Cal.App.2d 235, 132 P.2d 219, 224, 225. MeMahan y. Dorchester Fertilizer Co., 184 Md. 155, 40 A.2d 313, 314.
Testator’s statement to attesting witness. Anthony v. College of the Ozarks, 207 Ark. 212, 180 S.W.2d 321, 324.
Instruments
Formal declaration before authorized oficial, by person who executed instrument, that it is his free act and deed. Jemison v. Howell, 161 So. 806, 230 Ala. 423, 99 A.L.R. 1511. The certificate of the officer un such instrument that it has been so acknowledged. Williford v. Davis, 106 Okl. 208, 232 P. 828, 831.
Money
A sum paid in some parts of England by copy-hold tenants on th,e death of their lords, as a recognition of their new lords, in like manner as money is usually paid on the attornment of ten-ants. Called a fine by Blackstone; 2 Bla.Com. 98.
Separate Acknowledgment
An acknowledgment of a deed or other instru-ment, made by a married woman, on her exam-ination by the officer separate and apart from her husband. Hutchinson v. Stone, 79 Fla. 157, 84 So. 151, 154.
ACOLYTE. An inferior church servant, who, next under the sub-deacon, follows and waits upon the priests and deacons, and performs the albees
of lighting the candles, carrying the bread and wine, and paying other servile attendance. Spel-man; Cowell.
ACQUAINTED. Having personal knowledge of. Kelly v. Calhoun, 95 U.S. 710, 24 L.Ed. 544. Ac-quaintance expresses less than familiarity; In re Carpenter’s Estate, 94 Cal. 406, 29 P. 1101. It is "familiar knowledge"; Wyllis v. Haun, 47 Iowa, 614; Chauvin v. Wagner, 18 Mo. 531.
"Acquaintance" expresses less than familiarity; famili-arity less than intimacy. Acquaintance springs from oc-casional intercourse, familiarity from daily intercourse, intimacy from unreserved intercourse; acqualntance, hav-ing some knowledge, familiarity, from long habit, inti-macy, by close connection. Atkins Corporation v. Tourny, 6 Ca1.2d 206, 57 P.2d 480, 483. To be "personally acquainted with," and to "know personally," are equiva-lent terms; Kelly v. Calhoun, 95 U.S. 710, 24 L.Ed. 544. When used with reference to a paper to which a certificate or affldavit is attached, ft indicates a substantial Isnowl-edge of the subject-matter thereof. Bohan v. Casey, 5 Mo. App. 101.
ACQUEREUR. In French and Canadian law. One who acquires title, particularly to immovable property, by purchase.
ACQUEST. An estate acquired newly, or by pur-chase. 1 Reeve, Eng.Law, 56.
ACQUÉTS. In the civil law. Property which has been acquired by purchase, gift, or otherwise than by succession. Immovable property which has been acquired otherwise than by succession. Merl. Répert.
Proflts or gains of property, as between husband and wife. Civil Code La. art. 2402. The proflts of all the effects of which the husband has the administration and enjoymcnt, either of right or in fact, of the produce of the joint industry of both husband and wife, and of the estates which they may acquire during the marriage, either by donations made jointly to them both, or by pur-chase, or in any other similar way, even though the pur-chase be only in the neme of one of the two, and not of both. See Community; Conquéts.
ACQUIESCE. To give an implied consent to a transáction, to the accrual of a right, or to any act, by one’s mere silence, or without express assent or acknowledgment., Scott v. Jackson, 89 Cal. 258, 26 P. 898.
ACQUIESCENCE. Conduct recognizing the ex-istence of a transaction, and intended, in some extent at least, to carry the transaction, or permit it to be carried, into effect; it is some act, not deliberately intended to ratify a former transac-tion known to be voidable, but recognizing the transaction as existing, and intended, in some ex-tent at least, to carry it into effect, and to obtain or claim the benefits resulting from it, and thus differs from "confirmation," which implies a de-liberate act, intended to renew and ratify a trans-action known to be voidable. De Boe v. Prentice Packing & Storage Co., 172 Wash. 514, 20 P.2d 1107, 1110.
Passive compliance or satisfaction; distinguished from avowed consent on the one hand, and, on the other, from opposition or opon discontent. Paul v. Western Distribut-ing Co., 142 Kan. 816, 52 P.2d 379, 387. Acquiescence from which assent may be reasonably inferred. Frank v. Wilson & Co., 24 Del.Ch. 237, 9 A.2d 82, 86. Equivalent to assent inferred from silence with knowledge or from encourage-
ment and presupposes knowledge and assent. Andrew v. Rivers, 207 Iowa 343, 223 N.W. 102, 103. Imports tacit con-sent, concurrente, acceptance or assent. Natural Soda Products Co. v. City of Los Angeles, Cal.App•, 132 P.2d 553, 563. A silent appearance of consent. Worcester, Dict. Darnell v. Bidwell, 115 Me. 227, 98 A. 743, 745, 5 A.L. R. 1320. Failure to make any objcctions. Scott v. Jackson, 89 Cal. 253, 26 P. 898. Submission to an act of which one had knowledge. See Pence v. Langdon, 99 U.S. 578, 25 L.Ed. 420. It imports full knowledge. Rabe v. Dunlap, 51 N.J.Eq. 40, 25 A. 959. Knowledge without objection. Indiana Harbor Belt R. Co. v. Tones, 220 Ind. 139, 41 N.E.2d 361, 363.
It is to be distinguished from avowed consent, on the one hand, and from open discontent or opposition, on the other.
It arises where a person who knows that he is entitled to impeach a transaction or enforce a right neglects to do so for such a length of time that, under the circumstances of the case, the other party may fairly infer that he has waived or abandoned his right. Norfolk & .W. R. Co. v. Perdue, 40 W. Va. 442, 21 S.E. 755.
Acquiescence and laches are cognate but not equivalent terms. The former is a submission to, or resting satisfied with, an existing state of things, while taches implies a neglect to do that which the party ought to do for his own benefit or protection. Hence laches may be evidence of acquiescence. Leches imports a merely passive assent, while acquiescence implies active assent. In re Wilbur’s Estate, 334 Pa. 45, 5 A.2d 325, 331. "Acquiescence" relates to inaction during performance of an act while "lachos" relates to delay after act is done. Bay Newfoundland Co. v. Wilson & Co., 24 Del.Ch. 30, 4 A.2d 668, 671, 673. "Acqui-escence" is synonymous with "abandonment"; Sclawr v. City of St. Paul, 132 Minn. 238, 156 N.W. 283, 284, and is distinguished from "admission"; Saunders v. Busch-Everett Co., 138 La. 1049, 71 So. 153, 154; and from "ratifi-cation" and "estoppel in pais" ; Marion Sav. Bank v. Leahy, 200 Iowa 220, 204 N.W. 456, 458; but see Murray v. Smith, 152 N.Y.S. 102, 108, 166 App.Div. 528; differs from "confirmation", in that confirmation implies a deliberate act, intended to renew and ratify a transaction known to be voidable, Bauer v. Dotterer, 202 Ark. 1055, 155 S.W.2d 54. 57. A forra of "equitable estoppel", Schmitt v. Wright, 317 111.App. 384, 46 N.E.2d 184, 192.
See Admission; Confession; Ratification.
ACQUIESCENCE, ESTOPPEL BY. Acquiescence is a species of estoppel. Bankers’ Trust Co. v. Rood, 211 Iowa, 289, 233 N.W. 794, 802, 73 A.L.R. 1421.
An estoppel arises where party aware of his rights sees other party acting opon mistaken notion of his rights. Minear v. Keith Furnace Co., Iowa, 239 N.W. 584, 587. Injury accruing, from one’s acquiescence in another’s action to his prejudice creates "estoppel". Lebold v. Inland Steel Co., C.C.A.I11., 125 F.2d 369, 375; Passive conduct on the part of one who has knowledge of the facts may be basis of estoppel. Winslow v. Burns, 47 N.M. 29, 132 P.2d 1048, 1050.
It must appear that party to be estopped was bound in equity and good conscience to speak and that party claim-ing estoppel relied upen acquiescence and was misled thereby to chango his position to his prejudice. Sherlock v. Greaves, 106 Mont. 206, 76 P.2d 87, 91.
Acquiescence in a judgment in order to constitute an estoppel must be unqualified. Messer v. Henlein, 72 N.D. 63, 4 N.W.2d 587, 589. One who stands by while his property is sold is "estopped" from setting up title against purchaser. Meadows v. Hampton Live Stock Commission Co., 55 Cal.App.2d 634, 131 P.2d 591, 592, 593.
The doctrine is applicable only where there is some ele-ment of turpitude or neglect. City of Lafayette v. Keen, 113 Ind.App. 552, 48 N.E.2d 63, 70.
ACQUIETANDIS PLEGIIS. A writ of justices, formerly lying for the surety against a creditor who refuses to acquit him after the debt has been satisfied. Reg. of Writs 158; Cowell; Blount
ACQUIRE. To gain by any means, usually by one’s own exertions; to get as one’s own; to ob-tain by search, endeavor, practice, or purchase; receive or gain in whatever manner; come to have. Clamo v. Gamble-Robinson Co., 190 Minn. 256, 251 N.W. 268, 269.
In law of contracts and of descents, to become owner of property; to make property one’s own. Crutchaeld v. Johnson & Latirner, 243 Ala. 73, 8 So.2d 412. To gain ownership of. Commissioner of Insurance v. Broad Street Mut. Casualty Ins. Co., 312 Mass. 261, 44 N.E.2d 683, 684. Broad meaning including both purchase and construction; acquisition being the act of getting or obtaining some-thing which may be already in existence, or may be brought into existence through means employed to acquire it. Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133, 140. Sometimes used in the sense of "procure," Jolly v. McCoy, 36 Cal.App. 479, 172 P. 618, 619. It does not nec-essarily mean that title has passed, Godwirt v. Tuttle, 70 Or. 424, 141 P. 1120, 1122. Includes taking by devise, U. S. v. Merriam, 263 U.S. 179. 44 S.Ct. 69, 70 68 L.Ed. 240, 29 A.L.R. 1547.
ACQUIRED. To get, procure, secure, acquire. Jones v. State, 126 Tex.Cr.R. 469, 72 S.W.2d 260, 263.
Coming to an Intestate in any other way than by gift, devise, or descent from a parent or the ancestor of a par-ent. In re Miller’s Will, 2 Lea (Tenn.) 54.
ACQUIRED RIGHTS. Those which a man does not naturally enjoy, but which are owing to his own procurement, as sovereignty, or the right of commanding, or the right of property. Borden v. State, 11 Ark. 519, 527, 44 Am.Dec. 217.
ACQUIRER TAX. German estate inheritance leg-acy tax, not true inheritance or legacy tax, im-posed upon recipient, and not affecting executors. In re Gotthelf’s Will, 273 N.Y.S. 247, 152 Misc. 309.
ACQUISITION. The act of becoming the owner of certain property; the act by which one ac-quires or procures the property in anything. State ex rel. Fisher v. Sherman, 135 Ohio St. 458, 21 N. E.2d 467, 470. Used also of the thing acquired. Hartigan v. City of Los Angeles, 170 Cal. 313, 149 P. 590, 592. Taking with, or against, consent. Scribner v. Wikstrom, 93 N.H. 17, 34 A.2d 658, 660. Especially a material possession obtained by any means. Jones v. State, 126 Tex.Cr.R. 469, 72 S.W.2d 260, 263.
Original acquisition Is that by which a man secures a property in a thing which is not at the time he acquires it, and in its then existing condition, the property of any other individual. It may result from occupancy; 2 Kent, 289; accession; 2 Kent, 293; intellectual labor—namely, for inventions, which are secured by patent rights,; and for the authorship of books, maps, and charts, which is protected by copyrights; 1 Bouv.Inst. 508, n.
Derivative acquisitions are those which are procured from others. Goods and chattels may change owners by act of law in the cases of forfeiture, succession, marriage, judgment, insolvency, and intestacy; or by act of the parties, as by glft or sale.
An acquisition may result from the act of the party him-self, or those who are in his power acting for him, as his children while minors; Gale v. Parrot, 1 N.H. 28. See Dig. 41. 1. 53; Inst. 2. 9. 3.
See Accession.
ACQUIT. To set free, release or discharge as from an obligation, burden or accusation. Com-monwealth v. Benson, 94 Pa.Super. 10, 15. To ab-solve, one from an obligation or a liability; or to legally certify the innocence of one charged with crime. Dolloway v. Turrill, 26 Wend.N.Y. 383, 400.
ACQUIT A CAUTION. The certificate proving receipt of security that goods shipped from one French port to another shall not be sent to a foreign country. Argles, Fr.Merc.Law, 543.
ACQUIT BACK. In mineral deed, vested in the grantee the title to such mineral rights as grantor had at time of execution of deed, where grantor had received his title from grantee and the ex-pression was intended to reconvey such title. Al-len v. Boykin, 199 Miss. 417, 24 So.2d 748, 750.
ACQUITMENT. See Absolution.
ACQUITTAL.
Contracts
A release, absolution, or discharge from an ob-ligation, liability, or engagement.
According to Lord Coke, there are three kinds of acquit-tal, narnely: by deed, when the party releases the obliga-tion; by prescription; by tenure; Co. Lftt. 100 a.
Crimes
The legal and formal certification of the inno-cence of a person who has been charged with crime; a deliverance or setting free a person from a charge of guilt.
In a narrow sense, it is the absolution pf a party accused on a trial before a traverse jury. Thomas v. De Graf-fenreid, 2 Nott & McC. (S. C.) 143. Properly speaking, however, one is not acquitted by the jury but by the judg-ment of the court. People v. Rogers, 170 N.Y.S. 86, 87, 102 Misc. 437. And he may be legally acquitted by a judg-ment rendered otherwise than in pursuance of a verdict, as where he is discharged by a magistrate because of the insufficiency of the evidence, or the indictment is dismissed by the court or a nol. pros. entered. State v. Hart, 90 N.T. Law 261, 101 A. 278. But compare State v. Smith, 170 N.C. 742; 87 S.E. 98, 99.
"Nol. pros." not equivalent of "acquittal." Bolton v. State, 166 Miss. 290, 146 So. 453, 454. The unnecessary dis-charge of the jury without the consent of the accused after it has been sworn may constitute an acquittal. Riley v. Cornmonwealth, 190 Ky. 204, 227 S.W. 146, 147. Acquittal discharges from guilt, pardon only from punishment. Younger v. State, 2 W. Va. 579, 98 Am.Dec. 791.
It may occur even though the question of guilt or Inno-cence has never been submitted to a jury, as where a defendant, having been held under an indictment or infor-mation, is discharged because not brought to trial within the time provided by the Criminal Code. State v. Taylor, 130 Kan. 813, 288 P. 731, 732.
Acquittals in fea are those which take place when the jury, upon trial, finds a verdict of not guilty.
Acquittals in law are those which take place by mere operation of law; as where a man has been charged merely as an asscssory, and the principal has been acquit-ted. 2 Co.Inst. 364. Compare State v. Walton, 186 N.C. 485, 119 S.E. 886, 888.
See Jeopardy; Autrefois Acquit; Convict.\
Feudal Law
The obligation on the part of a mesne lord to protect his tenant from any claims, entries or molestations by lords paramount arising out of the services due to them by the mesne lord. See Co.Litt. 100a.
ACQUITTANCE. A written discharge, whereby one is freed from an obligation to pay money or perform a duty. It differs from a release in not requiring to be under seal. Pothier, Oblig. n. 781. See Milliken v. Brown, 1 Rawle (Pa.) 391.
This word, though perhaps not strictly speaking synon-ymous with ”receipt," includes it. A receipt is one form of an acquittance; a discharge is another. A receipt in full is an acquittance, and a recelpt for a part of a demand or obligation is an acquittance pro tanto. State v. Shel-ters, 51 Vt. 104, 31 Am.Rep. 679.
ACQUITTED. Released; absolved; purged of an accusation; judicially discharged from accusation; released from debt, etc. Includes both civil and criminal prosecutions. Dolloway v. Turrill, 26 Wend. (N.Y.) 383, 399. See Acquittal.
ACRE. A quantity of land containing 160 square rods of land, in whatever shape. Serg. Land Laws Pa. 185; Cro.Eliz. 476, 665; 6 Coke 67; Poph. 55; Co.Litt. 5b.
Originally the word "acre" (acer, aker, or Sax, cecer) was not used as a measura of land, or to signify any determinate quantity of land, but to denote any open ground, (latum quantumvis agrura,) wide champaign, or field; which is still the meaning of the German acker, derived probably from the same source, and is preserved in the narres of some places in England, as Castle Acre, South Acre, etc. Burrill. Originally a strip in the fields that was ploughed in the forenoon. Maitland, Domesday and Beyond, 387.
ACRE FOOT. 325,850 gallons, or the amount of water which will cover one acre one foot in depth. Rowles v. Hadden, Tex.Civ.App., 210 S.W. 251, 258.
ACRE RIGHT. "The share of a citizen of a New England town in the common lands. The value of the acre right was a fixed quantity in each town, but varied in different towns. A 10-acre lot or right in a certain town was equivalent to 113 acres of upland and 12 acres of meadow, and a certain exact proportion was maintained between the acre right and salable lands." Messages, etc., of the Presidents, Richardson, X, 230.
ACREFIGHT, or ACRE. A camp or field fight; a sort of duel, or judicial combat, anciently fought by single combatants, English and Scotch, between the frontiers of the two kingdoms with sword and lance. Called "campfight," and the com-batants "champions," from the open "acre" or field that was the stage of trial. Cowell.
ACROMIAL PROCESS. A point in the region of the shoulder about where the arm joins or fits into the shoulder blade. Muskogee Electric Traction Co. v. Mueller, 39 Okl. 63, 134 P. 51, 52.
ACROSS. From side to side. Transverse to the length of. Hannibal & St. J. R. Co. v. Packet Co., 8 S.Ct. 874, 125 U.S. 260, 31 L.Ed. 731; but see Appeal of Bennett’s Branch Imp. Co., 65 Pa. 242. It may mean over, Brown v. Meady, 10 Me. 391, 25 Am.Dec. 248; or "upon and along," Mt. Vernon Telephone Co. v. Franklin Farmers’ Co-op. Tele-phone Co., 113 Me. 46, 92 A. 934, 935, Ann.Cas. 1917B, 649; or "upon," Jefferson County v. Louis-ville & I. R. Co., 160 S.W. 502, 504, 155 Ky. 810; or "within," Quanah, A. & P. Ry. Co. v. Cooper,
Tex.Civ.App., 236 S.W. 811, 812. See Comstock v. Van Deusen, 5 Pick. (Mass.) 163, where a grant of a right of way across a lot of land was held not to mean a right to enter at one side, go partly across and come out at a place on the same side. And compare Brooklyn Heights R. Co. v. Steers, 106 N.E. 919, 920, 213 N.Y. 76; but see Holley v. State, 9 Ala.App. 33, 63 So. 738.
ACT, In Scotch practice. To do or perform
judicially; to enter of record. Surety "acted in the Books of Adjournal." 1 Broun, 4.
ACT, n. Denotes affirmative; expression of will, purpose; cardes idea of performance; primarily that which is done or doing; exercise of power, or effect of which power exerted is cause; a per-formance; a deed. Brown v. Standard Casket Mfg;Co., 234 Ala. 512, 175 So. 358, 364.
In its most general sense, this noun significo something done voluntarily by a person; the exercise of an individ-ual’s power; an effect produced in the external world by an exercise of the power of a person objectively, prompted by intention, and proximately caused by a motion of the will. Herman v. Pan American Life Iras. Co., 183 La. 1045, 165 So, 195, 200. In a more technical sense, it means some-thing done voluntarily by a person, and of such a nature that certain legal consequences attach to it. Jefferson Standard Life lns. Co. v. Myers, Tex.Com.App., 284 S.W. 216, 218. Thus a grantor acknowledges the conveyance to be his "act and deed," the terms being synonymous. It may denote something done by an individual, as a private citizen, or as an officer; or by a hody of men, as a legis-latura, a council, or a court of justice; Including not merely physical acts, but also decrees, edicts, laws, judg-menta, resolves, awards, and determinations. Some gen-eral laws made by the Congress of the United States are styled joint resolutions, and these have the same force and effect as those styled acts. But see Decher v. Vaughan, 209 Mich. 565, 177 N.W. 388, 392. Cardes idea of performance. Edmonds v. Shirley, 22 Ala.App. 398, 116,So. 303.
An instrument in writing to verify facts. Web-ster, Dict.
It is used in this sense of the published acts of assembly, congress, etc. In a sense approaching this, it has been held in trials for treason that letters and other written documents were acts; 1 Fost.Cr.Cas. 198; 2 Stark. 116.
Act indicates the intention. 8 Co. 146b; Broom, Max. 301.
Civil Law
An act is a writing which states in a legal form that a thing has been said, done, or agreed. Merl. Répert.
Acta under private signature are those which have been ‘nade by private individuals under their hands.
Private acta are those made by private persons as regis-ters in relation to their receipts and expenditures, sched-ules, acquittances, and the like.
Public acta are those which have a public authority, and which have been made before public officers, are author-ized by a public seal, have been made public by the author-ity of a magistrate„ or which have been extracted and been properly authenticated from public records.
Legislation
A written law, formally ordained or passed by the legislativa power of a state, called in England an "act of parliament," and in the United States an "act of congress," or of the "legislature ;" a statute. People v. Tiphaine, 3 Parker, Cr.R. (N. Y.) 241; United States v. Smith, 27 Fed.Cas. 1167.
The words bill and law are frequ’ently used synony-mously with act, People v. City of Buffalo, 161’N.Y.S. 706, 712, 175 App.Div. 218, but incorrectly; Sedgwick County Com’rs v. Bailey, 13 Kan. 600; a bill being only the draft or form of the act presented to the legislature but not enacted; Southwark Bank v. Com., 26 Pa. 446. "Act" does not include ordinances or regulations made by local authorities, or even statutes having only a local applica-tion; People v. City of Buffalo, 157 N.Y.S. 938, 940, 93 Misc. 275; although sometimes used interchangeably with "measure" and "law"; Whittemore v. Terral, 140 Ark. 493, 215 S.W. 686, 687. Generally, the word refers to entire statute enacted, rather than to a section. Board of Trus-tees of Firemen’s Relief and Pension Fund of City of Muskogee v. Templeton, 184 Okl. 281, 86 P.2d 1000, 1002.
Acts are either puhlic or private. Public acts (also called general acts, or general statutes, or statutes at large) are those which relate to the community generally, or establish a universal rule for the governance of the whole body politic. Private acts (formerly called special, Co. Litt. 126a) are those which relate either to particular persons (personal acts) or to particular places (local acts), or which operate only upon specified individuals or their private concerns. Unity v. Burrage, 103 U.S. 454, 26 L.Ed. 465. Public acts are those which concern the whole com-munity and of which courts of law are bound to take judicial notice. Sasser v. Martin, 101 Ga. 447, 29 S.E. 278.
A "special" or "private" act is one operating only on particular persons and private concerns; a "local act" is ene applicable only to a particular part of the legislative jurisdiction. Trumper v. School Dist. No. 55 of Mussel-shell County, 55 Mont., 90, 173 P. 946, 947.
To denote an avowal of criminal acts, or the concession of the truth of a criminal charge, the word "confession" seems more appropriate
Practice-
Anything done by a court and reduced to writ-ing; a decree, judgment, resolve, rule, order, or other judicial proceeding. In Scotch law, the orders and decrees of a court, and in French and German law, all the records and documents in an action, are called "acts."
Scotch Practice-
An abbreviation of actor, (proctor or advocate, especially for a plaintiff or pursuer,) used in records. "Act. A. Alt. B." an abbreviation of Actor, A. Alter, B.; that is, for the pursuer or plaintiff, A., for the defender, B. 1 Broun, 336, note.
ACT BOOK. In Scotch practice. The minute book of a court. 1 Swin. 81.
ACT IN PAIS. An act done out of court, and not a matter of record. A deed or an assurance transacted between two or more private persons in the country, that is, according to the old com-mon law, upon the very spot to be transferred, is matter in pais. 2 Bl.Comm. 294.
ACT OF ATTAINDER. A legislative act, attaint-ing a person. See Attainder.
ACT OF BANKRUPTCY. Any act which renders a person liable to be proceeded against as a bank-rupt, or for which he may be adjudgeel bankrupt.
These acts are usually defined and classifled in statutes on the subject. Duncan v. Landis, C.C.A.Pa.. 106 Fed. 839, 45 C.C.A. 666; In re Chapman, D.C., 99 Fed. 395. Such as: insolvency or suffering or permitting a creditor to obtain a preference, Von Segerlund v. Dysart, C.C.A.Cal., 137 F.2d 755, 758, 761; appointment of a receiver, United States v. Emory, 62 S.Ct. 317, 319, 314 U.S. 423, 86 L.Ed. 315; hin-
dering, delaying or defrauding creditors, In re Thompson, D.C.La., 28 F.Supp. 707, 710; fallure to discharge a líen, In re Flushing Queensboro Laundry, C.C.A.N.Y., 90 F.2d 601. Permitting creditor to obtain any levy, attachment, judgment, or other lien, In re Day, D.C.Md., 22 F.Supp. 946. 949; assignment for benefit of creditors, In re Roy, D. C.N.H., 46 F.Supp. 952, 954; or a writtcn admission of one’s inability to pay his debts, In re Turner, D.C.Ky., 51 F. Supp. 740, 743.
ACT OF CURATORY. In Scotch law. The act ex-tracted by the clerk, upon any one’s acceptance of being curator. Forb.Inst. pt. 1, b. 1, c. 2, tit. 2. 2 Kames, Eq. 291. Corresponding with the order for the appointment of a guardian, in English and American practice.
ACT OF ELIZABETH. See Act of Supremacy.
ACT OF GOD. An act occasioned exclusively by violence of nature without the interference of any human agency. It means a natural necessity pro-ceeding from physical causes alone without the intervention of man. It is an act, everit, happen-ing, or occurrence, a disaster and effeet due to natural causes and inevitable accident, or disaster; a natural and inevitable necessity which implies entire exciusion of all human agency which op-erates without interference or aid from man and which results from naturá, causes and is in no sense attributable to human agency. It is an acci-dent which could not have been occasioned by human agency but proceeded from physical causes alone. Short v. Kerr, 104 Ind.App. 118, 9 N.E.2d 114, 118.
In the civil law, vis major. Any misadventure or cas-ualty is said to be caused by the "act of God" when It happens by the direct, immediate. and exclusive operation of the forces of nature, uncontrolled or uninfluenced by the power of man and without human intervention, and is of such a character that it could not have been pre-vented or escaped from by any amount of foresight or
prudence, or by any reasonable degree of care or
dilli-
gence, or by the aid of any appliances which the situation of the party might reasonably require him to use. Inevit-able accident, or casualty; any accident produced by any physical cause which is irresistible, such as lightning, tempests, perils of the seas, an inundation, or earthquake; and also the suelden illness or death of persons. People v. Tul-4.)s, 37 N.Y. 586; Central of Georgia Ry. Co. v. Hall, 124 Ga. 322, 52 S.E. 679, 4 L.R.A..N.S., 898, 110 Am.St.Rep. 170, 4 Ann.Cas. 128. Story, Ballm. §§ 25, 511; 2 Bl.Comm. 122. Inevitable accident or casualty. Noel Bros. v. Texas & P. Ry. Co., 16 La.App. 622, 133 So. 830, 832; not pre-‘entable by human care, skill, or foresight, but resulting from natural causes, The Empress of France, D.C.N.Y., 49 F.2d 291. Misfortunes and accidenta arising from inevita-ble necessity which human prudence could not foresee or prevent. Pleasure Beach Park Co. v. Bridgeport Dredge & Dock Co., 116 Cono. 496. 165 A. 691, 692. Limited, v. Lehigh Valloy R. Co., D.C.N.Y.. 254 F. 351. 353, a landside in the Panama Canal, Gans S. S. Line v. Wilhelmsen, C.C. A.N.Y., 275 F. 254, 261, and changes in the styles of wear-ing apparel, Rosenblatt v. Winstanley, Mo.App., 186 S.W. 542, 543, are not "acts of God" ; otherwise. however, as to a strike, accompanied with violence and intimidation, see Southern Cotton Oil Co. v. Louisville & N. R. Co., 15 Ga.App. 751, 84 S.E. 198, 199.
The terco is sometimes defined as equivalent te inevita-ble accident; Neal v. Saunderson, 2 Sin. & M. (Miss.) 572, 41 Am.Dec. 609; Central of Georgia By. Co. v. Council Bros., 36 Ga.App. 573, 137 S.E. 569. 570 (see, however, Can-non v. Hunt, 113 Ga. 509, 38 S.E. 983; Harmony Grove Telephone Co. v. Potts, 24 Ga.App. 178, 100 S.E. 236, but incorrectly, as there is a distinction between the two; Alaska Coast Co. y. Alaska Barge Co., 79 Wash. 216, 140 P. 334, 335. Bolton v. Burnett, 5 Blackf. (Ind.) 222.
See Inevitable Accident; Perils of the Sea.
ACT OF GOVERNMENT
ACT OF GOVERNMENT. The usual name of Cromwell’s Constitution vesting the supreme power in a Protector and two houses of Parlia-ment, passed March 25, 1657.
ACT OF GRACE. In Scotch law. A term ap-plied to the act of 1696, c. 32, by which it was pro-vided that where a person imprisoned for a civil debt is so poor that he cannot aliment [maintain] himself, and will make oath to that effect, it shall be in the power of the magistrates to cause the creditor by whom he is incarcerated to provide an aliment for him, or consent to his liberation; which, if the creditor delay to do for 10 days, the magistrate is authorized to set the debtor at liberty. Bell. The term is often used to designate a general act of parliament, originating with the crown, such as has of ten been passed at the com-mencement of a new reign, or the coming of age or marriage of a sovereign, or at the close of a period of civil troubles, declaring pardon or am-nesty to numerous offenders. Abbott.
ACT OF HONOR. When a bill has been protested, and a third person wishes to take it up, or accept it, for honor of one or more of the parties, the notary draws up an instrument, evidencing the transaction, called by this name.
ACT OF INDEMNITY. A statute by which those who have committed illegal acts which subject them to penalties are protected from the conse-quences of such acts.
ACT OF INSOLVENCY. Within the meaning of the national currency act, an act which shows a bank to be insolvent, such as nonpayment of its circulating notes, bilis of exchange, or certificates of deposit; failure to make good the impairment of capital, or to keep good its surplus or reserve; in fact, any act which shows that the bank is unable to meet its liabilities as they mature, or to perform those duties which the law imposes for the purpose of sustaining its credit. Hayden v. Chemical Nat. Bank, C.C.A.N.Y., 84 Fed. 874, 28 C.C.A. 548; Kullman & Co. v. Woolley, C.C.A. Miss., 83 F.2d 129, 132; Garvin v. Chadwick Real-ty Corporation, 212 Ind. 499, 9 N.E.2d 268, 271.
ACT OF LAW. The operation of fixed legal tules upon given facts or occurrences, producing conse-quences independent of the design or will of the parties concerned; as distinguished from "act of parties." Also an act performed by judicial au-thority which prevents or preclndes a party from fulfilling a contract or other engagement. Met-calf v. State, 57 Okl. 64, 156 P. 305, 306, L.R.A. 1916E, 595.
ACT OF PARLIAMENT. A statute, law, or edict, made by the British sovereign, with the advice and consent of the lords spiritual and temporal, and the commons, in parliament assembled. Acts of parliament form the leges scriptce, i. e., the written laws of the kingdom.
ACT OF PROVIDENCE. An accident against which ordinary skill and foresight could not guard. McCoy v. Danley, 20 Pa. 91, 57 Am.Dec. 680. Equivalent to "act of God," see supra.
ACT OF SALE. In Louisiana law. An official record of a sale of property, made by a notary who writes clown the agreement of the parties as stated by them, and which is then signed by the parties and attested by witnesses. Hodge v. Palms, Mich., 117 Fed. 396, 54 C.C.A. 570.
ACT OF SETTLEMENT. The statute (12 & 13 Wm. III, c. 2) limiting the crown to the Princess Sophia of IIanover, and to the heirs of her body being Protestants. 1 Bla.Com. 128; 2 Steph.Com. 290. One clause of it made the tenure of judges’ office for life or good behavior independent of the crown.
ACT OF STATE. An act done by the sovereign power of a country, or by its delegate, within the limits of the power vested in him. An act of state cannot be questioned or made the subject of legal proceedings in a court of law.
ACT OF SUPREMACY. An act of 26 Hen. VIII. e. 1, and also 1 Eliz. c. 1, which recognized the king as the only supreme head on earth of the Church of England having fuli power to correct all errors, heresies, ahuses, offenses, contempts and enormities. The oath, taken under the act, denies to the Pope any other authority than that of the Bishop of Rome.
ACT OF UNIFORMITY. In English law. The statute of 13 & 14 Car. II. c. 4, enacting that the book of common prayer, as then recently revised, should be used in every parish church and other place of public worship, and otherwise ordaining a uniformity in religious services, etc. 3 Steph. Comm. 104.
ACT OF UNION. The statutes uniting England and Wales, 27 Hen. VIII, c. 26, confirmed by 34 & 35 Hen. VIII, c. 26; England and Scotland, 5 Anne. c. 8; Great Britain and Ireland, 39 & 40 Geo. III, c. 67. 1 Bl.Comm. 97.
The act uniting the three lower counties (now Delaware) to the province of Pennsylvania, passed at Upland, Dec. 7, 1682, is so called.
ACT ON PETITION. A form of summary pro-ceeding formerly in use in the high court of admiralty, in England, in which the parties stated their respective cases briefly, and supported their statements by affidavit. 2 Dod.Adm. 174, 184; 1 Hagg.Adm. 1, note.
ACTA DIURNA. Lat. In the Roman law. Daily acts or chronicles; the public registers or journals of the daily proceedings of the senate, assemblies of the people, courts of justice, etc. Supposed to have resembled a modern newspaper. Brande. Thus: I do not find the thing published in the acta diurna (daily records of affairs); Tacitus, Ann. 3, 3; Ainsworth, Lex.; Smith, Lex.
ACTA EXTERIORA INDICANT INTERIORA SECRETA. 8 Coke, 146b. External acts indicate undisclosed thoughts.
ACTA IN UNO JUDICIO NON PROBANT IN ALIO NISI INTER EASDEM PERSONAS. Things done in one action cannot be taken as evidence in another, unless it be between the same parties. Tray.Lat.Max. 11.
ACTA PUBLICA. Lat. Things of general knowl-edge and concern; matters transacted before cer-tain public officers. Calvinus, Lex.
ACTE. In French law, denotes a document, or formal, solemn writing, embodying a legal attesta-tion that something has been done, corresponding to one sense or use of the English word "act."
Arles de naissance are the certificates of birth, and must contain the day, hour, and place of birth, together with the sex and intended christian name of the child, and the names of the parents and of the witnesses. Actes de manage are the marriage certificates, and contain names, professions, ages, and places of birth and domicile oí the two persons marrying, and of their parents; also the con-sent of these latter, and the mutual agreements of the intended husband and wife to take each other for better and worse, together with the usual attestations. Actes de décbs are the certificates of cleath, which are required to be drawn up before any one may be buried. Les actes de l’état civil are public documents. Brówn.
ACTE AUTHENTIQUE. A deed executed with certain prescribed formalities, in the presence of a notary, mayor, greffier, huissier, or other func-tionary qualified to act in the place in which it is drawn up. Argles, Fr.Merc.Law, 50.
ACTE DE FRANCISATION. The certificate of registration of a ship, by virtue of which its French nationality is established.
ACTE D’IIÉRITIER. Act of inheritance. Any ac-tion or fact on the part of an heir which mani-fests his intention to accept the succession; the acceptance may be express or tacit. Duverger.
ACTE EXTRAJUDICIAIRE. A document served by a huissier, at the demand of one party upon another party, without legal proceedings.
ACTING. The word "acting" means doing duty for another; officiating; holding a temporary rank or position or performing services tempo-rarily; as, an acting captain, manager, president. Pellecchia v. Mattia, 121 N.J.L. 21, 1 A.2d 28. Per-i orming; operating. See Meyer v. Johnston, 64 Ala. 603, 665.
An acting trustee is one who takes upon himself to per-foren some or all of the trusts mentioned in a will. Sharp v. Sharp, 2 Barn. & AId. 415.
ACTING OFFICER. The phrase "acting officer" is used to designate, not an appointed incumbent, but merely a locum tenens, who is performing the duties of an office to which he himself does not claim titie. State ex rel. Gossett v. O’Grady, 137 Neb. 824, 291 N.W. 497, 501; State Bank of Wil-liams v. Gish, 167 Iowa, 526, 149 N.W. 600, 601.
"Acting Supervising Architect." Fraser v. United States, 16 Ct.C1. 514. An acting executor is one who assumes to act as executor for a decedent, not being the executor legally appointed or the executor in fact. Morse v. Allen, 99 Mich. 303, 58 N.W. 327.
ACTIO. Lat. In the civil law. An action or suit; a right or cause of action. It should be
noted that this term means both the proceeding to enforce a right in a court and the right itself which is sought to be enforced.
The first sense here given ls the older one. Justinlan, following Celsus, gives the well-known definition: Actio nihil aliud est ~un jus persequendi iu judicio quod sibi debetur, which may be thus rendered: An action is simply the right to enforce one’s demands in a court of law. See Pollock, Expansion of C. L. 92.
ACTIO AD EXHIBENDUM. An action for the purpose of compelling a defendant to exhibit a thing or title in his power. It was preparatory to another action, which was always a real action in the sense of the Roman law; that is, for the recovery of a thing, whether it was movable or immovable. Merl.Quest.tome i, 84.
ACTIO .2ESTIMATORIA; ACTIO QUANTI MI-NORIS. Two names of an action which lay in behalf of a buyer to reduce the contract price proportionately to the defects of the object, not to cancel the sale; the judex had power, however, to cancel the sale. Hunter, Rom.Law, 332, 505.
ACTIO ARBITRARIA. Action depending on the discretion of the judge. In this, unless defendant would make amends to plaintiff as dictated by the judge in his discretion, he was liable to be con-demned. Hunter, Rom.Law, 825, 987.
ACTIO BONJE FIDEL (Lat.: An action of good faith.) A class of actions in which the judge might at the trial ex officio, take into account any equitable circumstances that were presented to him affecting either of the parties to the action. 1 Spence, Eq.Jur. 210, 218.
ACTIO CALUMNL2E. An action to restrain de-fendant from prosecuting a groundless proceeding or trumped-up charge against plaintiff. Hunter, Rom.Law, 859, 1020. An action for malicious prosecution. So.Afr.Leg.Dict.
ACTIO CIVILIS. In the common law. A civil ac-tion, as distinguished from a criminal action.
Bracton divides personal actions into criminalia et civitia, according as they grow out of crimes or contracts. Bract. fol. 101b. Actiones civiles are those forms of reme-dies which were established under the rigid system of the civil law, the jus civilis. See Actio Honoraria.
ACTIO COMMODATI. Included several actions appropriate to "enforce the obligations of a bor-rower or a lender. Hunter, Rom.Law, 305.
ACTIO COMMODATI CONTRARIA. An action by the borrower against the lender, to compel the execution of the contract. Poth. Prdt á Usage, n. 75.
ACTIO COMMODATI DIRECTA. An action by a lender against a borrower, the principal object of which is to obtain a restitution of the thing lent. Poth. Prét á Usage, nn. 65, 61,.
ACTIO COMMUNI DIVIDUNDO. An action to procure a judicial division of joint property. Hun-ter, Rom.Law, 194. It was analogous in its object to proceedings for partition in modern law.
ACTIO CONDICTIO INDEBITATI. An action by which the plaintiff recovers the amount of a sum of money or other thing he paid by mistake. Poth. Promutuum, n. 140; Merl. Répert.
ACTIO CONFESSORIA. An affirmative petitory action for the recognition and enforcement of a servitude. So called because based on plaintiff’s affirmative allegation of a right in defendant’s land. Distinguished from an actio negatoria, which was brought to repel a claim of defendant to a servitude in plaintiff’s land. Mackeld. Rom. Law, § 324.
ACTIO CONTRARIO. Counter action or cross action.
ACTIO CRIMINALIS. Criminal action.
ACTIO DAMNI INJURIA. The name of a gen-eral class of actions for damages, including many species of suits for losses caused by wrongful or negligent acts. The term is about equivalent to our "action for damages."
ACTIO DE DOLO MALO. An action of fraud; an action which lay for a defrauded person against the defrauder and his heirs, who had been en-riched by the fraud, to obtain the restitution of the thing of which he had been fraudulently de-prived, with all its accessions (cum omni causa;) or, where this was not practicable, for compensa-tion in damages. Mackeld.Rom.Law, § 227.
ACTIO DE PECULIO. An action concerning or against the peculium, or separate property of a party.
ACTIO DE PECUNIA CONSTITUTA. An action for money engaged to be paid; an action which lay against any person who had engaged to pay money for himself, or for another without any formal stipulation. Inst. 4, 6, 9; Dig. 13, 5; Cod. 4, 18.
ACTIO DE TIGNO JUNCTO. An action by the the owner of material built by another into his building.
If so used in goocl faith double their value could be recovered; if in bad faith, the owner could recover suita-ble damage for the wrong, and recover the property when the building carne down, So. Afr. Leg. Dict.
ACTIO DEPOSITI CONTRARIA. An action which the depositary has against the depositor, to com-pel him to fulfil his engagement towards him. Poth. Du Dépót, n. 69.
ACTIO DEPOSITI DIRECTA. An action which is brought by the depositor against the depositary, in order to get back the thing deposited. Poth. Du Dépót, n. 60.
ACTIO DIRECTA. A direct action; an action founded on strict law, and conducted according to fixed forms; an action founded on certain legal obligations which from their origin were accurate-ly defined and recognized as actionable. See Actio
ACTIO EMPTI. An action employed in behalf of a buyer to compel a seller to perform his obliga-tions or pay compensation; also to enforce any special agreements by him, embodied in a con-tract of sale. Hunter, Rom.Law, 332, 505.
ACTIO EX CONDUCTO. An action which the bailor of a thing for hire may bring against the bailee, in order to compel him to redeliver the thing hired.
ACTIO EX CONTRACTU. In the civil and com-mon law. An action of contract; an action aris-ing out of, or founded on, contract. 3 Bl.Comm. 117.
ACTIO EX DELICTO. In the civil and common law. An action of tort; an action arising out of fault, misconduct, or malfeasance. Inst. 4, 6, 15; 3 Bl.Comm. 117. Ex maleficio is the more com-mon expression of the civil law; which is adopted by Bracton. Inst. 4, 6, 1; Bract. fols. 102, 103.
ACTIO EX LOCATO. An action upon letting; an action which the person who let a thing for hire to another might have against the hirer. Dig. 19, 2; Cod. 4, 65.
ACTIO EX STIPULATU. An action brought to enforce a stipulation.
ACTIO EXERCITORIA. An action against the exercitor or employer of a vessel.
ACTIO FAMILLIE ERCISCUNDM. An action for the partition of an inheritance. Inst. 4, 6, 20; Id. 4, 17, 4. Cailed, by Bracton and Fleta, a mixed ac-tion, and classed among actions arising ex quasi contracto. Brac. fol. 100b; Bract. fols. 443 b, 444; Fleta, lib. 2, c. 60, § 1.
ACTIO FURTI. An action of theft; an action founded upon theft. Inst. 4, 1, 13-17; Bract. fol. 444. This could be brought only for the penalty attached to the offense, and not to recover the thing stolen, for which other actions were pro-vided. Inst. 4, 1, 19. An appeal of larceny. The old process by which a thief can be pursued and the goods vindicated. 2 Holdsw.Hist.Eng.L. 202.
ACTIO HONORARIA. An honorary, or prwtorian action. Dig. 44, 7, 25, 35. Actiones honorarice are those forms of remedies which were gradually introduced by the prwtors and a diles, by virtue of their equitable powers, in order to prevent the failure of justice which too often resulted from the employment of the actiones civiles. These were found so beneficial in practice that they eventually supplanted the old remedies, of which in the time of Justinian hardly a trace remained. Mackeldey, Civ.L. § 194; 5 Savigny, System.
ACTIO IN FACTUM. In action adapted to the particular case, having an analogy to some actio in jus, the latter being founded on some subsisting acknowledged law. 1 Spence, Eq.Jur. 212. The origin of those actions is similar to that of actions on the case at common law.
Admiralty Law
An action directed against the particular person who is to be charged with the liability. It is
dis-tinguished from an actio in rem, which is a suit directed against a specific thing (as a vessel) ir-respective of the ownership of it, to enforce a claim or lien upon it, or to obtain, out of the thing or out of the proceeds of its sale, satisfac-tion for an injury alleged by the claimant.
Civil Law
An action against the person, founded on a per-sonal liability; an action seeking redress for the violation of a jus in personara or right available against a particular individual.
ACTIO IN REM. In the civil and common law. An action [or a thing; an action for the recovery of a thing possessed by another. Inst. 4, 6, 1. An action for the enforcement of a right (or for redress for its invasion) which was originally available against all the world, and not in any special sense against the individual sued, until he violated it. See In Rem.
ACTIO drUDICATI. An action instituted, after four months had elapsed after the rendition of judgment, in which the judge issued his warrant to seise, first, the movables, which were sold within eight days afterwarcls; and then the im-movables, which were delivered in pledge to the creditors, or put under the tare of a curator, and if, at the end of two months, the debt was not paid, the land was sold. Dig. 42, 1; Cod. 8, 34.
According to some authorities, if the defendant then utterly denied the rendition of the former judgment, the plaintiff was driven to a new action, conducted like any other action, which was called actio judicati, and which had for its object the determination of the question whether such a judgment had been rendered. The exact meaning of the term is by no means clear. See Savigny, Syst. 305, 411; 3 Ortolan, Just. § 2033.
ACTIO LEGIS AQUILLE. An action under the Aquilian law; an action to recover damages for maliciously or injuriously killing or wounding the slave or beast of another, or injuring in any way a thing belonging to another. Otherwise called dainn.i injurioe actio.
ACTIO MANDATI. Included actions to enforce contracts of mandate or obligations arising out of them. Hunter, Rom.Law, 316.
ACTIO MIXTA. A mixed action; an action brought for the recovery of a thing, or compensa-tion for damages, and also for the payment of a penalty: partaking of the nature both of an actio in rema and in personan. Inst. 4, 6, 16, 18, 19, 20; Mackeld.Rom.Law, § 209.
ACTIO NEGATORIA (or NEGATIVA). An ac-tion brought to repel a claim of the defendant to a servitude in the plaintiff’s land. Mackeld.Rom. Law, § 324. See Actio Confessoria.
ACTIO NEGOTIORUM GESTORUM. Included ac-tions between principal and agent and other par-tres to an engagement, whereby one person under-took the transaction of business for another.
ACTIO NON. In pleading. The Latin name of that part of a special plea which follows next after the statement of appearance and defense, and declares that the plaintiff "ought not to have or maintain his aforesaid action thereof against" the defendant (in Latin, actionem non habere debet). 1 Chit.Plead. 531; 2 id. 421; Stephens, Plead. 394.
ACTIO NON ACCREVIT INFRA SEX ANNOS. The name of the plea of the statute of limitations, when the defendant alleges that the plaintiff’s ac-tion has not accrued within six years.
ACTIO NON DATUR NON DAMNIFICATO. An action is not given to one who is not injured. Jenk.Cent. 69.
ACTIO NON FACIT REUM, NISI MENS SIT REA. An act does not make one guilty, unless the intention be bad. Lofft, 37.
ACTIO NON ULTERIUS. In English pleading. A name given to the distinctive clause in the plea to the further maintenance of the action, intro-duced in place of the plea puis darrein continu-ance; the averment being that the plaintiff ought not further (ulterius) to have or maintain his ac-tion. Steph.Pl. 64, 65, 401.
ACTIO NOXALIS. A noxal action; an action which lay against a master for a crime commit-ted or injury done by his slave; and in which the master had the alternative either to pay for the damage done or to deliver up the slave to the com. plaining party. Inst. 4, 8, pr.; Heinecc.Elem. lib. 4, tit. 8. So called from noxa, the offense or in-jury committed. Inst. 4, 8, 1.
ACTIO PERPETUA. An action without limita-tion period.
ACTIO PERSONALIS. In the civil and common law. A personal action.
The ordinary terco for this kind of action in the civil law is actio in personar)), (q. v.,) the word personalis being of only occasional occurrence. Inst. 4, 6, 8, in tit.; Id. 4, 11, pr. 1. Bracton, however, uses it freely, and hence the personal action of the common law. Bract. fols. 102a, 1590. See Actipn.
ACTIO PERSONALIS MORITUR CUM PER-SONA. A personal right of action dies with the person. Noy, Max. 14.
The maxim \vas originally applied to almost every form of action, whether arising out of contract or tort. but the common law was modified by the Statute of 4 Edward the III. Momand v. Twentieth-Century Fox Film Corporation, D.C.Okl., 37 F.Supp. 649, 652.
ACTIO PIGNORATITIA. An action of pledge; an action founded on the contract of pledge (pignus). Dig. 13, 7; Cod. 4, 24.
ACTIO PCENALIS. Called also actio ex delicto. An action in which a penalty was recovered of the delinquent.
Artiones pcenales and actiones mixtaa, comprehended cases of injuries, for which the civil law permltted redress
ACTIO PENALIS
by private action, but which modem civilization univer-sally regards as crinnes; that is, offenses against society at large, and punished by proceedings in the name•of the state alone. Thus, theft, receiving stolen goods, robbery, maliclous mischief, and the murder or neglig,ent homicide of a slave (in which case an injury to property was involved), gave risa to private actions for damages against the delinquent. Inst. 4, 1. De obligalion.ibus quce ex delicto nascuntur; id. 2. De bonis vi raptts; id. 3. De lege Aquilia. And sea Mackeldey, Civ.L. § 196; 5 Savigny, System, § 210.
Actio pcenalis in hmredem non datur, nisi forte ex damno locupletior hxres factus sit. A penal action is not given against an heir, unless, in-deed, such heir is benefited by the wrong.
ACTIO PRJEJUDICIALIS. A preliminary or pre-paratory action. An action instituted for the de-termination of some preliminary matter on which other litigated matters depend, or for the deter-mination of some point or question arising in an-other or principal action; and so called from its being determinad before, (prius, or prce judicari.)
ACTIO PRiESCRIPTIS VERBIS. A form of ac-tion which derived its force from continued usage or the responsa prudentium, and was founded on the unwritten law. 1 Spence, Eq.Jur. 212. The distinction between this action and an actio in facturo is said to be, that the latter was founded not on usage or the unwritten law, but by analogy to or on the equity of some subsisting law; 1 Spence, Eq.Jur. 212.
ACTIO PRJETORIA. A preetorian action; one introduced by the prmtor, as distinguished from the more ancient actio civilis, (q. v.) Inst. 4, 6, 3; Mackeld.Rom.Law, § 207.
ACTIO PRO SOCIO. An action of partnership. An action brought by one partner against his asso.ciates to compel them to carry out the terms of the partnership agreement. Story, Partn., Ben-nett ed. § 352; Pothier, Contr. de Société, n. 34.
ACTIO PUBLICIANA. An action which lay for one who had lost a thing of which he had bona fide obtained possession, before he had gained a property in it, in order to have it restored, under color that he had obtained a property in it by prescription. Inst. 4, 6, 4; Heinecc. Elem. lib. 4, tit. 6, § 1131; Halifax, Anal. b. 3, c. 1, n. 9. It was an honorary action, and derived its narre from the prmtor Publicius, by whose edict it was first given. Inst. 4, 6, 4.
ACTIO QUJELIBET IT SUA VIA. Every action proceeds in its own way. Jenk.Cent. 77.
ACTIO QUOD JUSSU. An action given against a master, founded on some business done by his slave, acting under his order, ( jussu.) Inst. 4, 7, 1; Dig. 15, 4; Cod. 4, 26.
ACTIO QUOD METUS CAUSA. An action grant-ed to one who had been compelled by unlawful force, or fear (metus causa) that was not ground-less, (metus probabilis or justus,) to deliver, sell, or promise a thing to another. Bract. fol. 103b; Mackeld.Rom.Law, § 226.
ACTIO REALIS. A real action. The proper terco in the civil law was rei vindicatio. Inst. 4, 6, 3.
ACTIO REDIIIBITORIA. An action to cancel a sale in consequence of defects in the thing sold.
It was prosecuted to compel complete restitution to the seller of the thing sold, with its produce and accessories, and to give the buyer .back the price. with interest, as an cquivalent for the restitution of the produce. Hunter, Rom.Law, 332. See Redhibitory Action.
ACTIO RERUM AMOTARUM. An action for things removed; an action which, in cases of divorce, lay for a husband against a wife, to re-cover things carried away by the latter, in con-templation of such divorce. Dig. 25, 2; Id. 25, 2, 25, 30. It also lay for the wife against the hus-band in such cases. Dig. 25, 2, 7, 11; Cod. 5, 21.
ACTIO RESCISSORIA. An action for restoring plaintiff to a right or title which he has lost by prescription, in a case where the equities are such that he should be relieved from the operation of the prescription. Mackeld.Rom.Law, § 226.
An action to rescind a prescriptive title by one who was entitled to exemption from the prescrip-tion law, as a minor, etc.
ACTIO SERVIANA. An action which lay for the lessor of a farm, or rural estate, to recover the goods of the lessee or farmer, which were pledged or bound for the rent. Inst. 4, 6, 7.
ACTIO STRICTI JURIS. An action of strict right. The class of civil law personal actions, which were adjudged only by the strict law, and in which the judge was limited to the precise language of the formula, and had no discretion-ary power to regard the bona fides of the trans-action. See Inst. 4, 6, 28; Gaius, iii. 137; Mackeld. Rom.Law, § 210; 1 Spence, Eq.Jur. 218.
ACTIO TEMPORALIS. An action which must be brought within a limited time. See Limitation.
ACTIO TUTELFE. Action founded on the duties or obligations arising on the relation analogous to that of guardian and ward.
ACTIO UTILIS. A beneficial action or equitable action. An action founded on equity instead of strict law, and available for those who had eq-uitable rights or the beneficial ownership of prop-erty.
Actions are divided into actiones directce or utiles. The former are founded on certain legal obligations which from their origin were accurately detined and recognized as ac-tionable. The latter were formed analogically in imitation of the former. They were permitted in legal obligations for which the actioncs directce were not originally intend-ed, but which resembled the legal obligations which formad the basis of the direct action. Mackeld.Rom.Law, § 207.
ACTIO VENDITI. An action employed in behalf of a seller, to compel a buyer to pay the price, or perform any special obligations embodied in a contract of sale. Hunter, Rom.Law, 332.
ACTIO VI BONORUM RAPTORUM. An action for goods taken by force; a species of mixed ac-tion, which lay for a party whose goods or mov-ables (bona) had been taken from him by force,
(vi,) to recover the things so taken, together with a penalty of triple the value. Inst. 4, 2; Inst. 4, 6, 19. Bracton describes it as lying de rebus mo-bilibus vi ablatis sive robbatis, (for movable things taken away by force, or robbed.) Brac. fol. 103b.
ACTIO VULGARIS. A legal action; a common action. Sometimes used for actio directa. Mack-eld.Rom.Law, § 207.
ACTION. Conduct; behavior; something done; the condition of acting; an act or series of acts.
French Commercial Law
Stock in a company, or shares in a corporation.
Practice
The legal and formal demand of one’s right from another person or party made and ínsisted on in a court of justice, Smith-Webster Co. v. John, C.C.A.Pa., 259 F. 549, 551; Dinsmore v. Barker, 61 Utah, 332, 212 P. 1109; Shaw v. Lone Star Building & Loan Ass’n, Tex.Civ.App., 40 S.W. 2d 968, 969. Pursuit of right in court, without regard to form of procedure. Ginzberg v. Wy-man, 272 Mass. 499, 172 N.E. 614, 615. Form of suit given by law for recovery of that which is one’s due. Co.Litt. 284b, 285a; Peterson v. A. Guthrie & Co., D.C.Wash., 3 F.Supp. 136, 138. Judicial means of enforcing a right. Code Ga. 1882, § 3151 (Civ.Code 1926, § 5507). Judicial rem-edy for the enforcement or protection of a right. White v. White, 98 Ind.App. 587, 186 N.E. 349, 351.
An ordinary proceeding in a court of justice by which one party prosecutes another for the en-forcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Code Civ.Proc.S.D.1903, § 12 (Comp.Laws 1929, § 2091) ; Missionary Soc. v. Ely, 47 N.E. 537, 56 Ohio St. 405.
Cross-action, White v. St. Louis Post Offices Corporation, 348 Mo. 961, 156 S.W.2d 695, 698, and counterclalm, Webster v. Freeman, 27 Ca1.App.2d 5, 80 P.2d 497, 499, are actlons but not set off, Kress v. Central Trust Co. of Rochester, 283 N.Y.S. 467, 471, 246 App.D1v. 76.
It includes all the formal proceedings in a court of justice attendant upon the demand of a right made by one person of another in such court, including an adjudication upon the right and lts enforcement or denial by the court.
Proceedings held actlons: Disbarment, In re Wilcox, 90 Kan. 646, 135 P. 995; probating will, Simpson v. Simp-son, 273 III. 90, 112 N.E. 276, 277; will contest, Byrne v. Byrne, Mo.Sup., 181 S.W. 391, 392; workmen’s compensa-tion, Pigeon v. Employers’ Liabillty Assur. Corporation, 216 Mass. 51, 102 N.E. 932, 935, Ann.Cas.1915A, 737; crimi-nal prosecution, Mason v. U. S., C.C.A.I11., 1 P.2d 279, 280; mandamos, People v. Lueders, 287 III. 107, 122 N.E. 374, 375; naturalization, In re Fordiani, 98 Conn. 435, 120 A. 338, 341.
Proceedings held not actions: attachment, State v. Su-perior Court of Spokane County, 110 Wash. 49, 187 P. 708; arbitration, Temple v. Riverland Co., Tex.Civ.App., 228 S. W. 605, 609; criminal prosecution, U. S. v. Cleveland, D.C. Ala., 281 F. 249, 253; Wynn v. Commonwealth, 198 Ky. 644, 249 S.W. 783, 784; writ of citation, McClelland v. State, 101 Ohio St. 42, 127 N.E. 409, 410; certiorari, Camp-beli, v. Common Council of City of Watertown, 46 S.D. 574, 195 N.W. 442; mandamus, De Leyer v. Britt, 212 N.Y. 565, 106 N.E. 57; child’s support, Head v. Fuller, 122 Me. 15, 118 A. 714, 715; drainage, Richardson County v. Drainage
BlacWs Law Dictionary Revised 4th Ed.-4
Dist. No. 2 of Richardson County, 96 Neb. 169, 147 N.W. 205, 206; condemnation, State v. Superior Court for Ferry County, 145 Wash. 576, 261 P. 110, 111.
Scotch Law
A suit or judicial proceeding.
Sult Distinguished
Strictly applied, action does not usually refer to chancery practice. City of Beckley v. Craig-head, 125 W.Va. 484, 24 S.E.2d 908, 911. But terms "action" and "suit" are now nearly, if not entirely, synonymous. (3 Bl.Comm. 3, 116, et pas-sim.) Elmo v. James, Tex.Civ.App., 282 S.W. 835, 839; Coleman v. Los Angeles County, 180 Cal. 714, 182 P. 440. Or, if there be a distinction, it is that the term "action" is generally confined to proceedings in a court of law, while "suit" is equally applied to prosecutions at law or in equity. McBride v. University Club, 112 Ohio St. 69, 146 N.E. 804, 805; Guarantee Trust & Banking Co. v. Dickson, 148 Ga. 311, 96 S.E. 561, 562; Niantic Milis Co. v. Riverside & O. Milis, 19 R.I. 34, 31 A. 432; Ulshafer v. Stewart, 71 Pa. 170. Formerly, however, an action was considered as terminat-ing with the giving of judgment, the execution forming no part of it. (Litt. § 504; Co.Litt. 289a.) A suit included the execution. (Litt. § 291a.) So, an action is termed by Lord Coke, "the right of a suit." (2 Inst. 40.) Burrill.
Types of Actions
Actions are called, in common-law practice, ex contractu when they are founded on a contract; ex delicto when they arise out of a tort. Nelson v. Great Northern R. Co., 28 Mont. 297, 72 Pac. 642; Van Oss v. Synon, 85 Wis. 661, 56 N.W. 190.
If a cause of action arises from a breach of promise, the action is "ex contractu," and, if it arises from breach of duty growing out of contract, it is "ex delicto." Tort or trespass is none the less such because it incidentally in-volves breach of contract. Berning v. Colodny & Colodny, 103 Cal.App. 188, 284 P. 496, 498.
As to class or representative actions. See Class Or Representative Action.
As to the distinction between a revocatory ac-tion and an action in sirnulation, see Chapman v. Irwin, 157 La. 920, 103 So. 263, 265.
Civil actions are such as lie in behalf of persons to en-force their rights or obtain redress of wrongs in their rela-tion to indlviduals.
Common law actlons are such as will lie, on the par-ticular facts, at common law, without the aid of a stat-ute.
Criminal actions are such as are instituted by the sov-ereign power, for the purgase of punishing or preventing offenses against the public.
Local action. See Local Action.
Mixed actions partake of twofold nature of real and personal actions, having for their object the demand and restitution of real property and also personal damages for a wrong sustained. 3 B1 Comm. 118; Hall v. Decker, 48 Me. 257. Mixed actions are those which are brought for the specific recovery of lands, like real actions, but comprise, joined with this cláim, one for damages in re-spect of such property; such as the action of waste, where, in addition to the recovery of the place wasted, the de-mandant claims damages; the writ of entry, in which, by statute, a demand of mesne profits may be joined; and
ACTION
dower, in which a claim for detention may be included. 48 Me. 255. In the civil law, an action in which some spe-cific thing was demanded, and also some personal obliga-tion claimed to be performed; or, in other words, an ac-tion which proceeded both in rem and in personam. Inst. 4, 6, 20.
Penal actions are such as are brougnt, either by the state or by an individual under permission of a statute, to en-force a penalty imposed by law for the commission of prohlbited act.
Personal action. In civil law, an action in personam. It seeks to enforce an obligation imposed on the defendant by his contract or delict; that is, it is the contention that he is bound to transfer some dominion or to perforen some service or to repair some loss. Gaius, bk. 4, § 2. In com-mon law. An action brought for the recovery of some debt or for damages for some personal injury, in contradistinc-tion to the old real actions, which related to real property only. See 3 Bl.Comm. 117. Boyd v. Cronan, 71 Me. 286; Doe v. Waterloo Min. Co., C.C.Cal., 43 F. 219; Osborn v. Fall River, 140 Mass. 508, 5 N.E. 483. An action which can be brought only by the person himself who is injured, and not by bis representativas.
Popular actions, in English usage, are those actions which are given upon the breach of a penal statute, and which any man that will may sue on account of the king and himself, as the statute allows and the case requires. Because the action is not given to one especially, but gen-erally to any that will prosecute, it is callad "action pop-ular ;" and, from the words used in the process. (qui tom pro domino rege sequitur quant pro se ipso, who sues as well for the king as for himself,) it is callad a qui tam action. Tomlins.
Real actions. At common law, one brought for the spe-cific recovery of lands, tenements, or hereditaments. Steph.Pl. 3; Crocker v. Bleck, 16 Mass. 448; Hall v. Deck-er, 48 Me. 256; Doe v. Waterloo Min. Co., C.C.Cal., 43 F. 220; Mathews v. Sniggs, 75 Okl. 108, 182 P. 703, 708. They are droitural when they are based upon the right of prop-erty, and possessory when basad upon the right of posses-sion. They are either writs of right; writs of entry upon disseisin (which lie in the per, the per et cui, or the post), intrusion, or alienation; writs ancestral possessory, as mort d’ancestor, aiel, besaiel, cossinage, or nuper obiit. Com.Dig. Actions (D 2). The former class was divided into droitural, founded upon demandant’s own seisin, and ancestral droitural upon the demandant’s claim in respect of a mere right descended to him from an ancestor. Pos-sessory actions were divided in the same way—as to the demandant’s own seisin and as to that of his ancestor. Among the civilians, real actions, otherwise called "vindi-cations," were those in which a man demanded something that was his own. They were founded on duminion, or jus in re. The real actions of the Roman law were not. like the real actions of the common law, confined to real estate, but they included personal, as well as real, proper-ty. Wharton.
Statutory actions are such as can only be based upon the particular statutes creating them.
Transitory actions are those founded upon a cause of ac-tion not necessarily referring to or arising in any particu-lar locality. Their characteristic feature is that the right of action follows the person of the defendant. Brown v. Brown, 155 Tenn. 130, 296 S.W. 356, 358. Actions are "transitory" when the transactions relied en might have taken place anywhere, and are "local" when they could not occur except in some particular place; the distinction being in the sature of the subject of the injury, and not in the means used or the place at which the cause of action arises. Brady v. Brady, 161 N.C. 324, 77 S.E. 235, 236, 44 L.R.A.,N.S., 279; Taylor v. Sommers Bros. Match Co., 35 Idaho, 30, 204 P. 472, 474, 42 A.L.R. 189. The test of whether an action is local or transitory is whether the in-jury is done to a subject-matter which, in its natura, could not arlse beyond the locality of its situation, in contra-distinction to the subject causing the injury. IVIattix v. Swepston, 127 Tenn. 693, 155 S.W. 928, 929. Actions triable where defendant resides are termed "transitory" and those triable where the subject-matter is situated are termed "lo-cal." State v. District Court of Swift County, 164 Minn. 433, 205 N.W. 284, 285.
See Cause of Action.
ACTION EX CONTRACTU. An action for breach of promise set forth in a contract, express or implied. Bristol v. Sun Vacuum Stores, 181 Misc. 522, 42 N.Y.S.2d 501, 504; McCullough v. The American Workmen, 200 S.C. 84, 20 S.E.2d 640, 644.
ACTION EX DELICTO. An action arising from a breach of duty growing out of contract. Bern-ing v. Colodny & Colodny, 103 Cal.App. 188, 284 P. 496, 498; Federal Life Ins. Co. v. Maxam, 70 Ind.App. 266, 117 N.E. 801, 806.
ACTION FOR ACCOUNTING. Action in equity based on inadequacy of legal remedy and particu-larly applicable to mutual and complicated ac-counts and where confidential or fiduciary rela-tionship exists. Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606, 609. To adjust mutual accounts and to strike a balance. Cline v. McKee, 186 Okl. 366, 98 P.2d 25, 27.
ACTION FOR MONEY HAD ‘ AND RECEIVED. One in assumpsit based upon promise to repay im-plied by law, and in respect of limitation is a stated or liquidated account. Mutual Building & Loan Ass’n v. Watson, 226 Ala. 526, 147 So. 817, 818.
where ene person has reeeived money or its equivalent under serh circumstances that in equity and good con-science he ought not te retain it and in justice it belongs to another. Interstate Life & Accident Co. v. Cook, 19
Tenn.App. 290, 86 .2d 887, 891.
ACTION FOR POINDING. An action by a credi-ter to ohtain a sequestration of the rents of land and the goods of his debtor for the satisfaction of the debt, or to enforce a distress.
ACTION IN PERSONAM, IN REM. See In Per-sonam, In Rem.
ACTION OF ABSTRACTED MULTURES. An ac-tion for multures or tolls against those who are thirled to a mil], i. e., bound to grind their corn at a certain mill, and fail to do so. Bell.
ACTION OF ADHERENCE. See Adherence.
ACTION OF A WRIT. A phrase used when a de-fendant pleads some matter by which he shows that the plaintiff had no cause to have the writ sued upon, although it may be that he is entitled to another writ or action for the same matter. Cowell.
ACTION OF ASSIZE. A real action which prov-es the title of the demandant, merely by showing his ancestor’s possession. Sherman v. Dilley, 3 Nev. 21, 26, citing 5 Chit.B1. 184.
ACTION OF ASSUMPSIT. See Assumpsit.
ACTION OF BOOK DEBT. A form of action for the recovery of claims, such as are usually evi-denced by a book-account; this action is princi-pally used in Vermont and Connecticut. Newton v. Higgins, 2 Vt. 366.
ACTION ON CONTRACT. An a.ction brought to enforce rights whereof the contract is the evi-
ACTIONABLÉ
clouded or its value depreciated, or whereby the plaintiff might be incommoded or damnifled by assertion of an out-standing title already held or to grow out of the adverse pretension. Bank of American Nat. Trust & Savings Ass’n v. Town of Atherton, 60 Cal.App.2d 268, 140 P.2d 678, 680.
ACTIONABLE. That for which an action will lie, furnishing legal ground for an action.
ACTIONABLE FRAUD. Deception practiced in order to induce another to part with property or surrender some legal right; a false representa-tion made with an intention to deceive; may be committed by stating what is known to be false or by professing knowledge of the truth of a state-ment which is false, but in either case, the essen-tial ingredient is a falsehood uttered with intent to deceive. Sawyer v. Prickett, 19 Wall. 146, 22 L. Ed. 105.
To constitute "actionable fraud," it must appear that de-fendant made a material representation; that it was false; that when he made it he knew it was false, or made it recklessly without any knowledge of its truth and as a positive assertion; that he made it with intention that it should be acted on by plaintiff ; that plaintiff acted in re-liance on it; and that plaintiff thereby suffered injury. Blair v. McCool, 136 Or. 139. 295 P. 950, 952. Essential ele-ments are representation, falsity. scienter, .deception, and injury. Cobb v. Cobb, 211 N.C. 146, 189 S.E. 479, 482.
ACTIONABLE MISREPRESENTATION. A false statement respecting a fact . material to the con-tract and which is influential in procuring it. Wise v. Fuller, 29 N.J.Eq. 257.
ACTIONABLE NEGLIGENCE. The breach or nonperformance of a legal duty, through neglect or carelessness, resulting in damage or injury to another. Fidelity & Casualty Co. v. Cutts, 95 Me. 162, 49 Atl. 673.
It is failure of duty, omission of something which ought to have been done, or doing of something which ought not to have been done, or which reasonable man. guided by considerations which ordinarlly regulate conduct of hu-man affairs, would or would not do. Goff v. Emde, 32 Ohio App. 216, 167 N.E. 699, 700. Essential elements are failure to exercise due tare, injury, or darnage, and proxi-mate cause. Rountree v. Fountain, 203 N.C. 381, 166 S.E. 329, 330.
ACTIONABLE NUISANCE. Anything wrong-f ully done or permitted which injures or annoys another in the enjoyment of his legal rights. Mil-ler v. City of Dayton, 70 Ohio App. 173, 41 N.E.2d 728, 730.
Anything injurtous to health, or lndecent, or offenslve to the senses, or an obstruction to the free use of property so as to Interfere with the confortable enjoyment of life or property. Cooper v. Overton, 102 Tenn. 211, 52 S.W. 183, 45 L.R.A. 591.
ACTIONABLE TORT. To constitute an "action-able tort," there must be a legal duty, imposed by statute or otherwise, owing by defendant to the one injured, and in the absence of such duty dam-age caused is "injury without wrong" or "damnum absque injuria." Coleman v. California Yearly Meeting of Friends Church, 27 Cal.App.2d 579, 81 P.2d 469, 470.
ACTIONABLE WORDS. In law of libel and slander, such words as naturally imply damage. Dahm v. O’Connell, 161 N.Y.S. 909, 911, 96 Misc.
Per Quod
Words actionable only on allegation and proof of special damage. Knapp v. Post Printing & Publishing Co., 111 Colo. 492, 144 P.2d 981, 984,
Words not actionable per se opon their face. but only in consequence of extrinsic íacts showing circumstances under which they were said or the damages resulting to slandered party therefrom. Smith v. Mustain, 210 Ky. 445, 276 S.W. 154, 155, 44 A.L.R. 336. Not injurious on their face in their usual and natural signification, but only so in consequence oí extrinsic facts and requiring innuendo. Piplack v. Mueller, 97 Fla. 440, 121 So. 459.
Per Se
Words in themselves libelous. Knapp v. Post Printing & Publishing Co., 111 Colo. 492, 144 P.2d 981, 984.
Words which law presumes must actually, proximately, and necessarily damage defendant for which general dam-ages are recoverable and whose injurious character is a fact of common notoriety. established by the general con-sent of men, necessarily importing damage. Ellsworth v. Martindale-Hubbell Law Directory, 66 N.D. 578, 268 N.W. 400, 407. Words themselves opprobrious; susceptible only of opprobrious meaning. Fite v. Oklahoma Pub. Co., 146 Okl. 150, 293 P. 1073, 1075. Importing a charge of some punishable crime or some offensive disease, imputing moral turpitude, or tending, to injure a party in his trade or business. Barnes v. Trundy, 31 Me. 321; Lemons v. Wells, 78 Ky. 117; Mayrant v. Richardson, 1 Nott & McC. 347. 9 Am.Dec. 707. Tending to injure one’s reputation, thereby exposing him to public hatred, contempt or ridicule, tend-ing to degrade or lower him. Hodges v. Cunningham, 160 Miss. 576, 135 So. 215, 217. Such words are actionable without allegation of special damages. Kluender v. Se-mann, 203 Iowa 68, 212 N.W. 326, 327. See also Libelous per se.
ACTIONABLE WRONG. Committed when a re-sponsible person has neglected to use a reasonable degree of care for protection of another person from such injury as under existing circumstances should reasonably have been foreseen as a proxi-mate consequence of that negligence. Chadwick v. Bush, 174 Miss. 75, 163 So. 823, 824.
ACTIONARE. L. Lat. (From actio, an action.) In old records. To bring an action; to prosecute, or sue. Thorn’s Chrori.; Whishaw.
ACTIONARY. A foreign comrnercial term for the proprietor of an action or share of a public company’s stock; a stockholder.
ACTIONES LEGIS. In the Roman law, legal or lawful action; actions of or at law,) legitimce ac-tiones.) Dig. 1, 2, 2, 6.
ACTIONES NOMINATZE. (Lat. named actions). In the English chancery, writs for which there were precedents. The statute of Westminster, 2, c. 24, gave chancery authority to form new writs in consimili casa; hence the action on the case.
ACTIONS. (Fr.) Shares of corporate stock. Compare Actionary.
ACTIONS ORDINARY. Yn Scotch law, all actions which are not rescissory. Ersk.Inst. 4, 1, 18.
ACTIONS RESCISSORY. In Scotch law, these are either (1) actions of proper improbation for declaring a writing false or forged; (2) actions of reduction-improbation for the production of a
writing in order to have it set aside or its effect ascertained under the certification that the writ-ing if not produced shall be declared false or forged; and (3) actions of simple reduction, for declaring a writing called for null until produced. Ersk.Princ. 4, 1, 5.
ACTIONUM GENERA MAXIME SUNT SER-VANDA. The kinds of actions are especially to be preserved: Lofft 460.
ACTIVE. That is in action; that demands ac-tion; actually subsisting; the opposite of pas-sive. An active debt is one which draws interest. An active trust is a confidence connected with a duty. An active use is a present legal estate.
ACTIVE CONCEALMENT. This implies a pur-pose or design accomplished by words or acts, while passive concealment consists in mere silence where there is a duty to speak. Vendt v. Duenke, Mo.App., 210 S.W.2d 692, 699.
Concealment becomes a fraud where it is effected by mis-leading and’ deceptive talk, acts, or conduct, where it is accompanied by misrepresentations, or where, in addition to a party’s silence, there is any statement, word, or act on his part which tends allirmatively toa suppression of the truth. Such conduct is designated active concealment. Equitable Life Ins. Co. of Iowa v. Halsey, Stuart & Co., C.C.A.I11., 112 F.2d 302, 309.
ACTIVE NEGLIGENCE. A term of extensive meaning obviously embracing many occurrences that would fali short of willful wrongdoing, or of crass negligence, for example, all inadvertent acts causing injury to others, resulting from failure to exercise ordinary care, likewise all acts the effects of which are misjudged or unforeseen, through want of proper attention, or reflection, and hence the term covers the acts of willful wrongdoing and also those which are not of that character. Cohen v. Noel, Tenn.App., 104 S.W.2d 1001, 1005.
ACTIVE SERVICE. "Active service" in army does not necessarily mean actual service, but means service performed at direction of superior officer or ofthcers while receiving emoluments to which soldier is entitled. United States v. Wood-worth, D.C.Mass., 36 F.Supp. 645, 646.
ACTIVE TRUST. See Trust.
ACTIVITY. A recreational "activity" is a physi-cal or gymnastic exercise, an agile performance, such as dancing. McClure v. Board of Education of City of Visalia, 38 Cal.App. 500, 176 P. 711, 712.
ACTON BURNEL, STATUTE OF. In English law, a statute, otherwise called Statutum Merca-torum or de Mercatoribus the statute of the mer-chante, made at a parliament held at the castle or village of Acton Burnel in Shropshire, in the 11th year of the reign of Edward I. 2 Reeves, Eng. Law, 158-162. It was a statute for the collection of debts, the earliest of its class, being enacted in 1283. A further statute for the same object, and known as De Mercatoribus, was enacted 13 Edw. I. (c. 3.). See Statute Merchant.
Old European Law
A patron, proctor, advocate, or pleader; one who acted for another in legal matters; one who represented a party and managed his cause. An attorney, bailiff, or steward; one who man-aged or acted for another. The Scotch "doer" ís the literal translation.
Roman Law
One who acted for another; one who attended to another’s business; a manager or agent. A slave who attended to, transacted, or superintend-ed his master’s business or affairs, received and paid out moneys, and kept accounts. Burrill.
The word has a variety of closely-related meanings, very nearly corresponding with manager. Thus, actor domince, manager of bis master’s farm; actor ecclesice, manager of church property; actores provinciarum, tax-gatherers, treasurers, and managers of the public debt.
Actor ecclesice.—An advocate for a church; one who protects the temporal interests of a church. Actor viliw was the steward or head-baillff of a town or village. Cow-ell.
Plaintiff or comp7ainant. In a civil or private action the plaintiff was often callad by the Romans "petitor;" in a public action (causa publIca) he was called "accusator." The defendant was callad "reos," both in private and pub-lic causes; this term, however, according to Cicero, (De Orat. ii, 43,) might signify either party, as indeed we might conclude from the word itself. In a private action, the defendant was often called "adversarius," but either party might be called so.
Also, the term is used of a party who, for the time bsing, sustains the burden of proof, or has the initiative in the suit.
Actor qui contra regulam qujd adduxit, non est audiendus. A plaintiff (or pleader) is not to be heard who has advanced anything against author-ity, (or against the rule.)
Actor sequitur forum rei. According as rei is intended as the genitive of res, a thing, or rens, a defendant, this phrase means; The plaintiff fol-lows the forum of the property in suit, or the fo-rum of the defendant’s residence. Branch, Max. 4. Home, Law Tr. 232; Story, Confl.L. § 325 k; 2 Kent 462.
ACTORE NON PROBANTE REUS ABSOLVI-TUR. When the plaintiff does not prove his case the defendant is acquitted (or absolved). Hob. 103.
ACTORI INCUMBIT ONUS PROBANDI. The burden of proof rests on the plaintiff, (or on the party who advances a proposition affirmatively.) Hob. 103.
ACTORNAY. In old Scotch law, an attorney. Skene.
ACTRIX. Lat. A female actor; a female plain-tiff. Calvinus, Lex.
ACTS OF COURT. Legal memoranda made in the admiralty courts in England, in the nature of pleas.
ACTS OF POSSESSION. To constitute adverse possession, acts of possession must be such as,if seen by the party whose claim is sought to be divested, would apprise him that the party doing the acts claimed the ownership of the property. Crosby v. City of Greenville, 183 Mich. 452, 150 N.W. 246, 248.
ACTS OF SEDERUNT. In Scotch law, ordinances for regulating the forms of proceeding, before the court of session, in the administration of justice, made by the judges, who have the power by virtue of a Scotch act of parliament passed in 1540. Ersk. Prin. § 14.
ACTUAL. Real; substantial; existing presently in act, having a valid objective existence as op-posed to that which is merely theoretical or possi-ble. Ciaccio v. Hartman, 170 La. 949, 129 So. 540. Opposed to potential, possible, virtual, conceiv-abie, theoretical, hypothetical, or nominal. Amer-ican Ins. Co. of Newark, N. J., v. Seminole County Board of Education, 51 Ga.App. 808, 181 S.E. 783, 786. Something real, in opposition to construc-tive or speculative; something existing in act. Astor v. Merritt, 4 S.Ct. 413, 111 U.S. 202, 28 L. Ed. 401. Existing in act, fact, or reality. Guar-isco v. Massachusetts Bonding & Insurance Co., 4 N.Y.S.2d 788, 792, 167 Misc. 875.
It is used as a legal term in contradistinction to virtual or constructive as of possession or occupation; Cleveland v. Crawford, 7 Hun (N.Y.) 616; or an actual settler. which implies actual residence; McIntyre v. Sherwood, 82 Cal. 139, 22 Pac. 937. An actual seizure means nothing more than seizure, since there was no fiction of construc-tive seizure before the act; L.R. 6 Exch. 203.
Actually is opposed to seemingly, pretendcdly. or feign-edly, as actually cm-maca in farming means really, truly, in fact; In re Strawbridgc & Mays, 39 Ala. 367; Ayer & Lord Tie Co. v. Commonwealth, 208 Ky. 606, 271 S.W. 693,
694.
As to actual "Bias," "Damages," "Delivery," "Fraud," "Mollee," "Notice," "Occupation," "Ouster," "Posses-sion," "Residence," "Seisin," "Total Loss," see those ti-tles.
ACTUAL AUTHORITY. In the law of agency, sueh authority as a principal intentionally confers on the agent, or intentionally or by want of ordi-nary care allows the agent to believe himself to possess. National Cash Register Co. v. Wichita Frozen Food Lockers, Tex.Civ.App., 172 S.W.2d 781, 787. Includes both express and implied au-thority. Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646, 651.
ACTUAL BIAS. See Bias.
ACTUAL CASH VALUE. The fair or reasonable cash price for which the property could be sold in the market, in the ordinary course of business, and not at forced sale; the price it will bring in a fair market after reasonable efforts to find a purchaser who will give the highest price. Pea-vy-Wilson Lumber Co. v. Jackson, 161 La. 669, 109 So. 351, 352. What property is worth in money, allowing for depreciation. Gleris Falls Ins. Co. of New York v. Garner, 229 Ala. 39, 155 So. 533, 536. Ordinarily, "actual cash value," "fair mar-ket price," and "market value" are synonymous tercos. Butler v. .1Etna Ins. Co. of Hartford, Conn., 64 N.D. 764, 256 N.W. 214, 218.
ACTUAL
ACTUAL CHANGE OF POSSESSION. In stat-utes of frauds, an open, visible, and unequivocal change of possessiori, manifested by the usual out-ward signs, as distinguished from a merely for-mal or constructive change. Stevens v. Irwin, 15 Cal. 503, 76 Am.Dec. 500.
ACTUAL COST. The actual price paid for goods by a party, in the case of a real bona fide pur-chase, and not the market value of the goods. Ogunquit Village Corporation v. Inhabitants of Wells, 123 Me. 207, 122 A. 522, 524.
"Actual cost" has no common-law significance, and it 1s without any well-understood trade or technical meaning. It is a general or descriptive term which may have vary-ing meanings according to the circumstances in which it is used. It imports the exact sum expended or loss sus-tained rather than the average or proportional part of the cost. Its meaning may be restricted to overhead or ex-tended to other ¡tenis. State v. Northwest Poultry & Egg Co., 203 Minn. 438, 281 N.W. 753, 755.
ACTUAL DELIVERY. See Delivery.
ACTUAL EVICTION. An actual expulsion of the tenant out of all or some part of the demised premises; a physical ouster or dispossession from the very thing granted or some substantial part thereof. Cauley v. Northern Trust Co., 315 Ill. App. 307, 43 N.E.2d 147, 155, 315.
An arbitrary and willful interference with tenant’s rights by landlord is essential. Kusche v. Sabin, City Ct., New Rochelle, 6 N.Y.S.2d 771, 773. Deprivation of beneficiad enjoyment of property in whole or in part or exclusion from some portion of demised premises. Kusche v. Sabin, City Ct., New Rochelle, 6 N.Y.S.2d 771, 773. Dispossession by process of law, Stanton v. Conley, 278 N.Y.S. 275, 277. 244 App.Div. 84. Expulsion or exclusion from demised premises. Liberal Savings & Loan Co. v. Frankel Realty Co., 137 Ohio St. 489, 30 N.E.2d 1012, 1017, physical expul-sion by landlord. General American Life Ins. Co. v. North American Mfg. Co., 320 Ill.App. 488, 51 N.E.2d 619, wrong-ful entry on premises by lessor is necessary. Title & Trust Co. v. Durkheimer Inv. Co., 155 Or. 427, 63 P.2d 909.
ACTUAL FRAUD. See Fraud.
ACTUAL LOSS. One resulting from the real and substantial destruction of the property in-sured.
ACTUAL MARKET VALUE. In custom laws, the price at which merchandise is freely offered for sale to all purchasers; the price which the manufacturer or owner would have received for merchandise, sold in the ordinary course of trade in the usual wholesale quantities. United States v. Sischo, D.C.Wash., 262 F. 1001, 1011.
ACTUAL NOTICE. See Notice. ACTUAL POSSESSION. See Possession.
ACTUAL PRACTICE. Active, open and notori-ous engagement in business, vocation or profes-sion as opposed to casual, occasional or clandes-tine practice. State ex rel. Laughlin v. Washing-ton State Bar Ass’n, 26 Wash.2d 914, 176 P.2d 301, 309.
ACTUAL RESIDENCE. The abode, where one actually lives, not mere naked legal residence. In Re McGrath, 243 App.Div. 803, 278 N.Y.S. 135,ACTUAL SALE. Lands are "actually sold" at a tax sale, so as to entitle the treasurer to the stat-utory fees, when the sale is completed; when he has collected from the purchaser the amount of the bid. Miles v. Miller, 5 Neb. 272.
ACTUAL VALUE. "Actual value" to be awarded in condemnation proceeding is price that would probably result from negotiations between will-ing seller and willing buyer. State v. Hoblitt, 87 Mont. 403, 288 P. 181, 185. "Actual value,’ "market value," "fair value," and the like may be used as convertible terms. Kerr v. Clinch-field Coal Corporation, 169 Va. 149, 192 S.E. 741, 744. "Saleable value," "actual value," "cash value," and others used in directions to tax as-sessing officers, all mean the same thing. In re Lang Body Co., C.C.A.Ohio, 92 F.2d 338, 340.
ACTUAL VIOLENCE. An assault with actual violence is an assault with physical force put in action, exerted upon the person assailed. The term violence is synonymous with physical force, and the two are used interchangeably in rela-tion to assaults. Tanner v. State, 24 Ga.App. 13Z 100 S.E. 44.
ACTUARIUS. In Roman law, a notary or clerk. One who drew the acts or statutes, or who wrote in brief the public acts.
An officer who had charge of the public baths; an officer who received the money for the soldiers, and distributed it among them; a notary.
An actor, which see. Du Cange.
ACTUARY. In English ecclesiastical law, a clerk that registers the acts and constitutions of the lower house of convocation; or a registrar in a court christian.
Also an officer appointed to keep savings banks accounts; the computing officer of an insurance company; a person skilled in calculating the val-ue of life interests, annuities, and insurances. Champagne v. Unity Industrial Life Ins. Co., La. App., 161 So. 52, 53.
ACTUM. Lat. A deed; something done.
ACTUS. In the civil law, an act or action. Non tantum verbis, sed etiam actu; not only by words, but also by act. Dig. 46, 8. 5.
A species of right of way, consisting in the right of driving cattle, or a carriage, over the land subject to the servitude. Inst. 2, 3, pr. It is some-times translated a "road," and included the kind of way termed "iter," or path. Lord Coke, whe adopts the term "actas" from Bracton, defines it a foot and horse way, vulgarly called "pack and prime way;" but distinguishes it from a cart-way. Co.Litt. 56a; Boyden v. Achenbach, 79 N.C. 539.
In old English law, an act of parliament; statute. 8 Coke 40. A distinction, however, was sometimes made between actus and statutum. Actus parliamenti was an act made by the lords and commons; and it became statutum, when it received the king’s consent. Barring.Obs.St. 46, note b.
Actus curiae neminem gravabit. An act of the court shall prejudice no man. Jenk.Cent. 118. Where a delay in an action is the act of the court, neither party shall suffer for it.
Actas Dei nemini est. damnosus. The act of God is hurtful to no one. 2 Inst. 287. That is, a per-son cannot be prejudiced or held responsible for an accident occurring without his fault and at-tributable to the "act of God." See Act of God.
Actus Dei nemini facit injuriam. The act of God does injury to no one. 2 Bl.Comm. 122. A thing which is inevitable by the act of God, which no industry can avoid, nor policy prevent, will not be construed to the prejudice of any person in \vhom there was no lachos. Broom, Max. 230.
Actus inceptus, cujus perfectio pendet ex vol-untate partium, revocari potest; si autem pen-det ex voluntate testix persona., vel ex contin-genti, revocari non potest. An act already be-gun, the completion of which depends on the will of the parties, may be revoked; but if it depend on the will of a third person, or on a con-tingency, it cannot be revoked. Bac.Max. reg. 20.
Actus ,judiciarios coram non judice irritas hab-etur, de ministeriali autem a quocunque provenit ratum esto. A judicial act by a judge without jurisdiction is void; but a ministerial act, from whomsoever proceeding, may be ratified. Lofft, 458.
Actus legis nemini est damnosus. The act of the law is hurtful to no one. An act in law shall prejudice no man. 2 Inst. 287.
Actus legis nemini facit injuriam. The act of the law does injury to no one. 5 Coke, 116.
Actus legitimi non recipiunt modum. Acts re-quired to be done by law do not admit of qualifica-tion. Hob. 153; Branch, Princ.
Actus me invito factus non est meus actus. An act done by me, against my will, is not my act. Branch, Princ.
Actus non facit reum, nisi meas sit rea. An act does not malle [the doer of iti guilty, unless the mirad be guilty; that is, unless the intention be criminal. 3 Inst. 107. The intent and the act must both concur to constitute the crime, Lord Kenyon, C. J., 7 Term 514; Broom, Max. 306.
Actus repugnus non potest in esse produci. A repugnan’, act cannot be brought into being, i. e., cannot be made effectual. Plowd. 355.
Actus servi in lis quibus opera ejus communiter adhibita est, actus domini habetur. The act of a servant in those things in which he is usually em-ployed, is considered the act of his master. Lofft, 227.
A. D. An abbreviation of Anno Domini meaning in the year of our Lord. Commonwealth v. Tray-lor, 20 Ky,Law Rep. 97, 98, 45 S.W. 356.
AD CULPAM
AD. Lat. At; by; for; near; on account of; to; until; upon; with relation to or concerning.
AD ABUNDANTIOREM CAUTELAM. L. Lat. For more atrundant caution. 2 How. State Tr. 1182. Otherwise expressed, ad t’antelara ex super-abundanti. Id. 1163.
AD ADMITTENDUM CLERICUYI. For the ad-mitting of the clerk. A writ in the nature of an execution, commanding the bishop to admit bis clerk, upon the success of the latter in a quare inbpedit.
AD ALIUD EXAMEN. To another tribunal; be-longing to another court, cognizance, or jurisdic-tion.
AD ALIUM DIEM. At another day. A common phrase in the old reports. Yearb. P. 7 Hen. VI. 13.
AD ASSISAS CAPIENDAS. To take assises; to take or hold the assises. Bract. fol. 110a; 3 Bl. Comm. 185, 352. Ad assisam capiendam; to take an assise. Bract. fol. 110b.
Al) AlUDIENDAYI CONSIDERATIONEM CURI/E. To hear the judgment of the court. Bract. 383 b.
AD AUDIENDUM ET DETERMINANDUM. To hear and determine. St. Westm. 2, cc. 29, 30. 4 Bla.Com. 278.
Al) BARRAM. To the bar; at the bar. 3 How. State Tr. 112.
AD BARRAM EVOCATUS. Called to the bar. 1 Ld.Raym. 59.
AD CAMPI PARTEM. For a share of the field or land, for champert. Fleta, lib. 2, c. 36, § 4.
AD CAPTUM VULGI. Adapted to the common understanding.
AD COLLIGENDUM. For collecting; as an ad-ministrator or trustee ad colligendum. 2 Kent 414.
AD COLLIGENDUM BONA DEFUNCTI. For collecting the goods of the deceased. See Admin-istration of Estates.
AD COMMUNE NOCUMENTUM. To the com-mon nuisance. Broom & H.Com. 196.
AD COMMUNEM LEGEM. At common law, the name of a writ of entry (now obsolete) brought by the reversioners after the death of the life tenant, for the recovery of lands wrongfully alienated by him.
AD COMPARENDUM. To appear. Ad campar. endum, et ad standum inri, to appear and to stand to the law, or abide the judgment of the court. Cro.Jac. 67.
AD COMPUTUM REDDENDUM. To render an account. St.Westm. 2, c. 11.
Al) CULPAM. Until misbehavior.
AD CURIAM
AD CURIAM. At a court. 1 Salk. 195. To court. Ad curiam votare, to summon to court.
AD CUSTAGIA. At the costs. Toullier; Cowell; Whishaw.
AD CUSTUM. At the cost. 1 BI.Comm. 314.
AD DAMNUM. In pleading. "To the damage." The technical name of that clause of the writ or declaration which contains a statement of the plaintiff’s money loss, or the damages which he claims. Vincent v. Life Ass’n, 75 Conn. 650, 55 Atl. 177.
AD DEFENDENDUM. To defend. 1 Bl.Comm. 227.
AD DIEM. At a day; at the day. Townsh.P1. 23. Ad caium diem. At another day. Y.B. 7 Hen. VI, 13. Ad certum diem, at a certain day. 2 Strange, 747. Solvit ad diem; he paid at or on the day. 1 Chit.P1. 485.
AD EA QUIE FREQUENTIUS ACCIDUNT JURA ADAPTANTUR. Laws are adapted to those cases which most frequently occur. 2 Inst. 137; Broom, Max. 43.
Laws are adapted to cases which frequently occur. A statute, which, construed according to its plain words, is, in all cases of ordinary occurrence, in no degree Incon-sistent or unreasonable, should not be varied by construc-tion in every case, merely because there is one possible but highly improbable case in which the law would oper-ate with great severity and against our notions of justice. The utmost that can be contended is that the construction of the statute should be varied in that particular case, so as to obviate the injustice. 7 Exch. 549; 8 Exch. 778.
AD EFFECTUM. To the effect, or end. Co.Litt. 204a; 2 Crabb, Real Prop. p. 802, § 2143. Ad e ffectum sequentem, to the effect following. 2 Salk. 417.
AD EVERSIONEM JURIS NOSTRI. To the over-throw of our right. 2 Kent 91.
AD EXCAMBIUM. For exchange; for compensa-tion. Bract. fol. 12b, 37b.
AD EXHPEREDATIONEM. To the disherison, or disinheriting; to the injury of the inheritance. 3 B1.Comm. 288.
Formal words in the old writ of waste, which calls upon the tenant to appear and show cause why he hath commit-ted waste and destruction in the place named, ad exhoere-dationem, etc.; Fitzherbert, Nat.Bev. 55.
AD EXITUM. At issue; at the end (of the plead-ings.) Steph.P1. 24.
AD FACIENDUM. To do. Co.Litt. 204a. Ad faciendum, sub ficiendum et recipiendum; to do, submit to, and receive. Ad faciendam juratamil-lam; to make up that jury. Fleta, lib. 2, c. 65, § 12.
Al) FACTUM PRMSTANDUM. In Scotch law, a name descriptive of a class of obligations marked by unusual severity. A debtor ad fac. prces. is denied the benefit of the act of grace, the privilege of sanctuary, and the cessio bonorum; Erskine, Inst. lib. 3, tit. 3, § 62; Kames, Eq. 216.
AD FEODI FIRMAM. To fee farm. Fleta, lib. 2, c. 50, § 30.
AD FIDEM. In allegiance. 2 Kent, Comm. 56. Subjects born ad fidem are those born in alle-giance.
AD FILUM AQUIE. To the thread of the water; to the central line, or middle of the stream. Usque ad filum aguce, as far as the thread of the stream. Bract. fol. 208b; 235a. A phrase of f re-quent occurrence in modern law; of which ad medium filum aguce (q. v.) is another form, and etymologically more exact.
AD FILUM VIZE. To the middle of the way; to the central line of the road. Parker v. Inhabi-tants of Framingham, 8 Mete. (Mass.) 260.
AD FINEM. Abbreviated ad fin. To the end. It is used in citations to books, as a direction to read from the place designated to the end of the chapter, section, etc. Ad finem litis, at the end of the suit.
AD FIRMAM. To farm. Derived from an oid Saxon word denoting rent. Ad firmam noctis was a fine or penalty equal in amount to the estimated cost of entertaining the king for one night. Co-well. Ad feodi firmam, to lee farm. Spelman.
AD FUNDANDAM JURISDICTIONEM. To make the basis of jurisdiction. [1905] 2 K.B. 555.
AD GAOLAS DELTBERANDAS. To deliver the gaols; to empty the gaols. Bract. fol. 109b. Ad gaolam deliberandam; to deliver the gaol; to make gaol delivery. Bract. fal. 110b.
AD GRAVAMEN. To the grievance, injury, or oppression. Fleta, lib. 2, c. 47, § 10.
AD HOC. For this; for this special purpose.
An attorney ad hoc, or a guardian or curator ad hoc, is one appointed for a special purpose, generally to repre-sent the client or infant in the particular action In which the appointment is ‘nade. Bienvenu v. Insurance Co., 33. La.Ann. 212.
AD HOMINEM. To the person. A term used in logic with reference to a personal argument.
AD HUNC DIEM. At this day. 1 Leon. 90.
AD IDEM. To the same point, or effect. Ad idem facit, it makes to or goes to establish the same point. Bract. fol. 27b.
AD INDE. Thereunto. Ad inde requisitus, there-unto required. Townsh.P1. 22.
AD INFINITUM. Without limit; to an infinite extent; indefinitely.
AD INQUIRENDUM. To inquire; a writ of in-quiry; a judicial writ, commanding inquiry to be made of anything relating to a cause pending in court. Cowell.
AD INSTANTIAM. At the instance. 2 Mod. 44. Ad instantiam partis, at the instance of a party. Hale, Com.Law, 28.
AD INTERIM. In the meantime. An officer ad interim is one appointed to fill a temporary va-caney, or to discharge the duties of the office dur-ing the absence or temporary incapacity of its reg-ular incumbent.
AD JUDICIUM. To judgment; to court. Ad judi-ciurn provocare; to summon to court; to com-mence an action; a term of the Roman law.
Dig. 5, 1, 13, 14.
•
AD JUNGENDUM AUXILIUM. To joining in aid; to join in aid. See Aid Prayer.
AD JURA REGÍS. To the rights of the king; a writ which was brought by the king’s clerk, pre-sented to a living against those who endeavored to eject him, to the prejudice of the king’s title. Reg. Writs 61.
AD LARGU31. At large: as, title at large; assize at large. See Dane, Abr. c. 144, art. 16, § 7. Also at liberty; free, or unconfined. Ire ad largura, to go at large. Plowd. 37.
At large; giving details, or particulars; in extenso. A special verdict was formerly called a verdict at large. Plowd. 92.
AD LIBITUM. At pleasure. 3 Bla.Com. 292.
AD LITEM. For the suit; for the purposes of the suit; pending the suit. A guardian ad litem is a guardian appointed to prosecute or defend a suit on behalf of a party incapacitated by infancy or otherwise.
AD LUCRANDITM VEL PERDENDUM. For gain or loss. Emphatic words in the old warrants of attorney. Reg. Orig. 21, et seq. Sometimes ex-pressed in English, "to lose and gain." Plowd. 201.
AD MAJOREM CAUTELA31. For greater se-curity. 2 How.State Tr. 1182.
AD MANUM. At hand; ready for use. Et quer-ens sectam habeat ad inanum; and the plaintiff immediately have his suit ready. Fleta, lib. 2, c. 44, § 2.
AD MEDIUM FILUM AQUFE. To the middle thread of the stream. See Ad Filum Aqu.
AD MEDIU31 FILUM VISE. To the middle thread of the way.
AD MELIUS INQUIRENDUM. A writ directed to a coroner commanding him to hold a second in-quest. See 45 Law J.Q.B. 711.
AD MORDENDU1%I ASSUETUS. Accustomed to bite. Cro.Car. 254. A material averment in dec-larations for damage done by a dog to persons or animals. 1 Chit.P1. 388; 2 Chit.P1. 597.
AD NOCUMENTUM. To the nuisance, or annoy-ance; to the hurt or injury. Fleta, lib. 2, c. 52, § 19. Ad nocurnentum liberi tenementi sui, to the nuisance of his freehold. Formal words in the old assise of nuisance. 3 Bl.Comm. 221.
AD OFFICIUM JUSTICIARIORUM SPECTAT, UNICUIQUE CORAM EIS PLACITANTI JUS-TITIAM EXHIBERE. It is the duty of justices to administer justice to every one pleading before them. 2 Inst. 451.
AD OMISSA VEL MALE APPRETIATA. With relation to omissions or wrong interpretations. 3 Ersk.Inst. 9, § 36.
AD OPUS. To the work. See 21 Harv.L.Rev. 264, citing 2 Poll. & Maitl. 232 et seq.; Use.
AD OSTENDENDUM. To show. Formal words in old writs. Fleta, lib. 4, c. 65, § 12.
AD OSTIUM ECCLESILE. At the door of the church. One of the five species of dower formerly recognized by the English law. 1 Washb.Real Prop. 149; 2 B1.Comm. 132.
AD PIOS USUS. Lat. For pious (religious or charitable) uses or purposes. Used with reference to gifts and bequests.
AD PROSEQUENDAM. To prosecute. 11 Mod. 362.
Ad proximum antecedens fiat relatio nisi impedia-tur sententiá. Relative words refer to the near-est antecedent, unless it be prevented by the con-text. Jenk.Cent. 180; Brown v. Brown, Del., 3 Terry 157, 29 A.2d 149, 153.
Al) PUNCTUM TEMPORIS. At the point of time. Sto.Bailm. § 263.
AD QUFEREVIONIA31. On complaint of.
AD QUAESTIONEM FACTI NON RESPONDENT JUDICES, Al) QUAESTIONE3I JURIS NON RE-SPONDENT JURATORES. Means that juries must answer to questions of fact and judges to qu.estions of law. Ex parte United States, C.C.A. Wis., 101 F.2d 870, 874.
AD QUEM. To which.
A term used in the eomputation of time or distanee. as correiative to a quo; denotes the end or terminal point. See A Quo.
The terminas a que is the point of beginning or de-parture: the terminas ad quem, the end of the period or point of arrival.
AD QUESTIONES FACTI NON RESPONDENT JUDICES; AD QUESTIONES LEGIS NON RE-SPONDENT JURATORES. Judges do not answer questions of fact; juries do not answer questions of law. 8 Coke, 308; Co.Litt. 295.
AD QUIESTIONES LEGIS JUDICES, ET NON JURATORES, RESPONDENT. Judges, and not jurors, decide questions of law. 7 Mass. 279.
AD QUOD CURIA CONCORDAVIT. To which the court agreed. Yearb.P. 20 IIen. VI. 27.
AD QUOD DAMNUM. The narre of a writ for-merly issuing from the English chancery, com-manding the sheriff to make inquiry "to what damage" a specified act, if done, will tend.
AD QUOD DAMNUM
It is a writ which ought to be sued before the king grants certain liberties, as a fair, market or such like, which may be prejudicial to others, and thereby it should be inquired whether it will be a prejudice to grant them, and to whom it will be prejudicial, and what prejudice \vill come thereby. Termes de la Ley.
There is also another writ of ad quod dasnnum, if any one will turn a common highway and lay out another way as beneficiad. Termes de la Ley.
The writ of ad quod damnum is a common-law writ. in the nature of an original writ, issued by the prothonotary, and in condemnation proceedings is returnable to and sub-ject to confirmation of the Superior Court. Elbert v. Scott, Del., 5 Boyce 1, 90 A. 587.
AD QUOD NON FUIT RESPONSUM. To which there was no answer.
A phrase used in the reports, where a point advanced in argument by one party was not denied by the other: or where a point or argument of counsel was not met or notice by the court; or where an objection was met by the court, and not replied to by the counsel who raised it. 3 Coke, 9; 4 Coke, 40.
AD RATIONEM PONET1E. To cite a person to appear. A technical expression in the old rec-ords of the Exchequer, signifying, to put to the bar and interrogate as to a charge made; to ar-raign on a trial.
AD RECOGNOSCENDUM. To recognize. Fleta, lib. 2, c. 65, § 12. Formal words in old writs.
AD RECTE DOCENDUM OPORTET, PRIMUM INQUIRERE NOMINA, QUIA RERUM COGNI-TIO A NOMINIBUS RERUM DEPENDET. In order rightly to comprehend a thing, inquire first into the names, for a right knowledge of things depends upon their names. Co.Litt. 68.
AD RECTUM. (L. Lat.) To right. To do right. To meet an accusation. To answer the demands of the law. Habeant eos ad rectum. They shall render themselves to answer the law, or to make satisfaction. Bract. fol. 124 b.
AD REPARATIONEM ET SUSTENTATIONEM. For repairing and keeping in suitable condition.
AD RESPONDENDUM. For answering; to make answer; words used in certain writs employed for bringing a person before the court to make answer in defense in a proceeding, as in habeas corpus ad respondendum and capias ad responden-citan, q. v.
AD SATISFACIENDUM. To satisfy. The em-phatic words of the writ of capias ad satisfacien-dum, which requires the sheriff to take the person of the defendant to satisfy the plaintiff’s claim.
AD SECTAM. At the suit of. Commonly abbre-viated to ads.
Used in entering and indexing the names of cases. where it is desired that the name of the defendant should come first. Thus, "B. ads. A." indicates that B. is defendant in an action brought by A., and the title so written would be an inversion of the more usual form "A. v. B."
AD STUDENDUM ET ORANDUM. For studying and praying; for the promotion of learning and religion. A phrase applied to colleges and uni-versities. 1 Bl.Comm. 467.AD TERMINUM ANNORUM. For a terco of years.
AD TERMINUM QUI l’IVETERIT. For a term which has passed. Words in the Latin form of the writ of entry employed at common law to recover, on behalf of a landlord, possession of premises, from a tenant holding over alter the expiration of the term for which they were demised. See Fitzh. Nat.Brev. 201.
AD TRISTEM PARTEM STRENUA EST SUS-PICIO. Suspicion lies heavy on the unfortunate side.
AD TUNC ET IBIDEM. In pleading, the Latin name of that clause of an indictment containing the statement of the subject-matter "then and there being found."
AD ULTIMAN VIM TERMINORUM. To the most extended import of the terms; in a sense as uni-versal as the terms will reach. 2 Eden, 54.
AD USUM ET COMMODUM. To the use and benefit.
AD VALENTIAM. To the value. See Ad Va-lorem.
AD VALOREM. According to value. Powell v. Gleason; Ariz., 74 P.2d 47, 50, 114 A.L.R. 838.
Duties are either ad valoren], or speeifie; the former when the duty is laid in the form of a percentage on the value of the property; the Iatter where it is imposed as a fixed sum on each article of a class without regard to its value. The term ad valorem tax means a tax or duty upon the value of the article or thing subject to taxation. Ar-thur v. Johnston, 185 S.C. 324, 194 S.E. 151, 154.
AD VENTREM INSPICIENDUM. To inspect the womb. A writ for the summoning of a jury of matrons to determine the question of pregnancy.
AD VIM MAJOREM VEL AD CASUS FORTUI-TUS NON TENETUR QUIS, NISI SUA CULPA INTERVENERIT. No one is held to answer for the effects of a superior force, or of accidents, un-less his own fault has contributed. Fleta, lib. 2, c. 72, § 16.
AD VITAM. For life. Bract. fol. 13b. In feodo, vel ad vitam; in fee, or for life. Id.
AD VITAM AUT CULPAM. For life or until fault. Words descriptive of a tenure of office "for life or good behavior," equivalent to quam-diu bene se gesserit.
AD VOLUNTATEM. At will. Bract. fol. 27a. Ad voiuntatein domini, at the will of the lord.
AD WARACTUM. To fallow. Bract. fol. 228b. See Waractum.
ADAPTED. Capable of use. People v. Dorring-ton, 221 Mich. 571, 191 N.W. 831, 832. Indicates that the object referred to has been made suit-able; has been made to conform to; has been made fit by alteration. Raynor v. United States, C.C.A.Ind., 89 F.2d 469, 471.
ADAWLUT. Corrupted from Adalat, justice, eq-uity; a court of justice. The terms "Dewanny Adawlut" and "Foujdarry Adawlut" denote the civil and criminal courts of justice in India. Wharton.
ADCORDABILIS DENARII. Money paid by a vassal to his lord upon the selling or exchanging of a feud. Ene. Lond.
ADD. To unite; attach; annex; join. Board of Com’rs of Hancock County v. State, 119 Ind. 473, 22 N.E. 10.
ADDENDUM. A thing that is added or to be add-ed; a list or section consisting of added material.
ADDICERE. Lat. In the civil law, to adjudge or condemn; to assign, allot, or deliver; to sell. In the Roman law, addico was one of the three words used to express the extent of the civil jurisdiction of the praotors.
ADDICT. As defined in Acts 1894, No. 157, one who has acquired the habit of using spirituous liquors or narcotics to such an extent as to de-prive him of reasonable self-control. Interdiction of Gasquet, 147 La. 722, 85 So. 884, 888.
ADDICTIO. In the Roman law, the giving up to a creditor of his debtor’s person by a magistrate; also the transfer of the (deceased) debtor’s goods to one who assumes his liabilities.
Additio probat minoritatem. An addition [to a narre] proves or shows minority or inferiority. 4 Inst. 80; Wing.Max. 211, max. 60. That is, if it be said that a man has a fee tail, it is less than if he has the fee.
This maxim is applied by Lord Coke to courts, and terms of law; minoritas being understood in the sense of difference, inferiority, or qualification. Thus, the style of the king’s bench is coram rece, and the style of the court of chancery is coram domino rege in cancellaria; the addition showing the difference. 4 Inst. 80. By the
word "fee" is intended fee-tail not being in- tended by ft, unless there be added to it the addition of the word "tail." 2 Bl.Comm. 106; Litt. § 1.
ADDITION. Implies physical contact, something added to another. Structure physically attached to or connected with building itself. Mack v. Eyssell, 332 Mo. 671, 59 S.W.2d 1049; Washington Loan & Trust Co. y. Hammond, 51 App.D.C. 260, 278 F. 569, 571.
Extension; increase; augmentation. Mey-ering y. Miller, 330 Mo. 885, 51 S.W.2d 65, 66.
That which has become united with or a part of. Judge v. Bergman, 258 III. 246, 101 N.E. 574, ‘ 576.
French Law
A supplementary process to obtain additional information. Guyot, Répert.
Insurance
The word "addition," as applied to buildings, usually means a part added or joined to a main building. Agnew v. Sun Ins. Office, 167 Wis. 456, 167 N.W. 829. It may also apply to buildings ap-purtenant to some other building though not ac-tually in physical contact therewith. Taylor v. Northwestern Nat. Ins. Co., 34 Cal.App. 471, 167 P. 899. Not limited to structures physically a part of the main building. Gertner v. Glens Falls Ins. Co., 184 N.Y.S. 669, 670, 193 App.Div. 836.
Liens
Within the meaning of the mechanic’s lien law, an "addition" to a building must be a lateral ad-dition. Lake & Risley Co. v. Still, 7 N.J.Misc. 47, 144 A. 110. It must occupy ground without the limits of the building to which it constitutes an ad-dition, so that the lien shall be upon the building formed by the addition and the land upon which it stands. Updike v. Skillman, 27 N.J.L. 132. See also, Lamson v. Maryland Casualty Co., 196 Iowa 11S5, 194 N.W. 70, 71.
An alteratiori in a former building, by adcling to its height, or to its depth, or to the extent of its interior ac-commodations. is merely an "alteration," and not an "ad-dition." Putting a new slory on an old building is not an addition. Updike v. Skillman. 27 N.J.L. 132. See, also, Lamson v. Maryland Casualty Co., 196 Iowa 1185, 194 N.W. 70, 71.
Did not include new livestock acquired by mortgagor alt-er execution of mortgage. American State Bank of Water-town v. Boyle, 212 Minn. 293, 4 N.W.2d 108, 109.
Name
Whatever is added to a man’s name by way of title or description. Cowell.
In English law, there are four kinds of additions,—addi-tions of estafe, such as yeoman, gentleman, esquire; ad-ditions of degree, or names of dignity, as knlght, earl, mar-quis, duke; additions of trade, mystery, or occupation, as scrivener, painter, mason, carpenter; and additions of place of residence, as London, Chester, etc. The only ad-ditions recognized in American law are those of mystery and residence.
At common law there was no need of addition in any case; 2 Ld.Raym. 988: it was required only by stat. 1 Hen. V. e. 5, in cases where process of outlawry lies. In all other cases it is only a description of the person, and common reputation is sufficlent; 2 Ld.Raym. 849.
ADDITIONAL. This term embraces the idea of joining or uniting one thing to another, so as thereby to form one aggregate. Ex parte Boddie, 200 S.C. 379, 21 S.E.2d 4, 8.
"Additional security" imports a security, which, united with or joine.d to the former one, is deerned to make it, as an aggregate, sufficient as a security from the begin-ning. State v. Hull, 53 Miss. 626; Searcy v. Cullman County, 196 Ala. 287, 71 So. 664, 665.
ADDITIONAL BURDEN. See Eminent Domain.
ADDITIONAL INSURED. A person using anoth-er’s automobile, which is covered by liability policy containing statutory omnibus clause, only when insured’s permission is expressly or implied-ly given for particular use. Stewart v. City of Rio Vista, 72 Cal.App.2d 279, 164 P.2d 274, 275.
Driver chosen by friend to whom automobile was en-trusted by husband who had possession with direct permis-sion of wife in whose name record title lay was not ad-ditional insured. Fox v. Crawford, Ohio App., 80 N.E.2d 187, 189.
Where driver of automobile at time it struck pedestrian was using automobile for his own purpose atter having receivcd permission from owner only to get automobile
started and return automobile to owner’s honre, driver was not additional insured. Howe v. Farmers Auto. Inter-In-surance Exchange, Wash., 202 P.2d 464, 472.
ADDITIONAL LEGACY. See Legacy.
ADDITIONAL SERVITUDE. The imposition of a new and additional easement or servitude on land originally taken by eminent domain proceed-ings, a use of a different character, for which owner of property is entitled to compensation. S. D. Childs & Co. v. City of Chicago, 198 Ill.App. 590, 593; Williams v. Meridan Light & Ry. Co., 110 Miss. 174, 69 So. 596, 597.
ADDITIONAL WORK. Of nature involved in modifications and changes, not independent proj-ect. Maryland Casualty Co. v. City of South Nor-folk, C.C.A.Va., 54 F.2d 1032, 1037. Work which results from a change or alteration in plans con-cerning work which has to be done under a con-tract, while "extra work" relates to work which is not included within the contract itself. De Mar-tini v. Elade Realty Corp., Co.Ct., 52 N.Y.S.2d 487, 489.
ADDITIONALES. In the law of contracts. Ad-ditional terms or propositions to be added to a former agreement.
ADDITUR. The power of trial court to assess damages or increase amount of an inadequate award made by jury verdict, as condition of de-nial of motion for new trial, with consent of de-fendant whether or not plaintiff consents to such action. Dorsey et al. v. Barba et al., 226 P.2d 677.
ADDLED. Stupid, muddled, foolish. Windham v. State, 93 Tex.Cr.R. 477, 248 S.W. 51, 54.
ADDLED PARLIAMENT. The parliament which met in 1614. It sat for but two months and none of its bilis received the royal assent. Taylor, Jurispr. 359.
ADDONE, Addonne. L. Fr. Given to. Kelham.
ADDRESS. Place where mail or other communi-cations will reach person. Munson v. Bay State Dredginl_T, & Contracting Co., 314 Mass. 485, 50 N.E.2d 633, 636. Generally a place of business or residence.
Equity
Part of a bill wherein is given the appropriate and technical description of the court in which the bill is filed.
Legislation
A formal request addressed to the executive by one or both branches of the legislative body, re-questing him to perform some act.
It is provided as a means for the removal of judges deemed unworthy, though the causes of removal would not warrant impeachment. It is not provided for in the Con-stitution of the United States; and even in those states where the right exists it is exercised but seldom.
Offense
Not synonym of hazard, but an antonym, and, as respects gaming and devices, means skillful
management, dexterity, or adroitness. In re Wig-ton, 151 Pa.Super. 337, 30 A.2d 352, 355.
ADDRESS TO THE CROWN. When the royal speech has been read in Parliament, an address in answer thereto is moved in both houses. Two members are selected in each house by the ad-ministration for moving and seconding the ad-dress. Since the commencement of the session 1890-1891, it has been a single resolution express-ing their thanks to the sovereign for his gracious speech.
ADDUCE. To present, bring forward, offer, in-troduce. Used particularly with reference to evi-dence. Tuttle v. Story County, 56 Iowa 316, 9 N.W. 292.
Broader in its signification than the word "of-fered." Beatty v. O’Connor, 106 Ind. 81, 5 N.E. 880; Brown v. Griffin, 40 Ill.App. 558.
ADEEM. To take away, recall, or revoke. To satisfy a legacy by some gift or substituted dis-position, made by the testator, in advance. Tol-man v. Tolman, 85 Me. 317, 27 Atl. 184. Wood-burn Lodge No. 102, I. 0. 0. F., v. Wilson, 148 Or. 150, 34 P.2d 611, 614. See Ademption.
If the identical thing bequeathed is not in existence, or has been disposed of, the legacy is "adeemed" and the legatee’s rights are pone. Lange v. Lange, 127 N.J.Eq. 315, 12 A.2d 840, 843; Welch v. Welch, 147 Miss. 728, 113 So. 197, 198.
ADELANTADO. In Spanish law, the military and political governor of a frontier province. This oftice has long since been abolished. Also a president or president judge; a judge having jurisdiction over a kingdom, or over certain prov-inces only. So called from having authority over the judges of those places. Las Partidas, pt. 3, tit. 4, 1. 1.
ADELING, or ATHELING. Noble; excellent. A title of honor among the Anglo-Saxons, proper-ly belonging to the king’s children. Spelman.
ADEMPTIO. Lat. In the civil law, a revocation of a legacy; an ademption. Inst. 2, 21, pr. Where it was expressly transferred from one person to another, it was called translatio. Inst. 2, 21, 1; Dig. 34, 4.
ADEMPTION. Extinction or withdrawal of lega-cy by testator’s act equivalent to revocation or in-dicating intention to revoke. Tagnon’s Adm’x v. Tagnon, 253 Ky. 374, 69 S.W.2d 714.
Removal. Lewis v. Hill, 387 III. 542, 56 N.E.2d 619, 621. Testator’s giving to a legatee that which he has provided in bis will, or his disposing of that part of his estate so bequeathed in such manner as to make it impossible to carry out the will. Hurley v. Schuler, 296 Ky. 118, 176 S.W.2d 275, 276. Revocation, recalling, or cancellation, of a legacy, according to the apparent inten-tion of the testator, implied by the law from acts done by him in his life, though such acts do not amount to an express revocation of it. Burnham v. Comfort, 108 N.Y. 535, 15 N.E. 710.
The act by which the testator pays to his legatee, in his life-time, a general legacy which by his will he had pro-posed to give him at his death, 1 Rop.Leg. p. 365; and the act by which a specific legacy has become inoperative on account of the testator having parted with the subject. Dillender v. Wilson, 228 Ky. 758, 16 S.W.2d 173, 174.
See Advancement.
ADEO. Lat. So, as. Adeo plene et integre, as fully and entirely. 10 Coke, 65.
ADEQUATE. Sufficient; proportionate; equally efficient; equal to what is required; suitable to the case or occasion; satisfactory. Nagle v. City of Billings, 77 Mont. 205, 250 P. 445, 446. Equal to some given occasion or work. Nissen v. Miller, 44 N.M. 487, 105 P.2d 324, 326. Commensurate; it does not mean average or graduation. Vander-made v. Appert, 125 N.J.Eq. 366, 5 A.2d 868, 871.
ADEQUATE CARE. Such care as a man of ordi-nary prudence would himself take under similar circumstances to avoid accident; care proportion-ate to the risk to be incurred. Wallace v. Wilming-ton & N. R. Co., 8 Houst. (Del.) 529, 18 Atl. 818.
ADEQUATE CAUSE. Sufficient cause for a par-ticular purpose. Pennsylvania & N. Y. Canal & R. Co. v. Mason, 109 Pa. 296, 58 Am.Rep. 722.
In criminal law, adequate cause for the passion which reduces a homicide cornmitted under its influence from the grade of murder to manslaughter, means such cause as would commonly produce a degree of anger, rage, resent-ment, or terror, in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Insulting words or gestures, or an assault and battery so slight as to show no intention to intlíct pala or injury, or an injury to property unaccompanied by violente are not adequate causes. Vollintine v. State, 77 Tex.Cr.R. 522. 179 S.W. 108; Berry v. State, 157 S.W.2d 650, 652, 143 Tex.Cr.R. 67. See Adequate Provocation.
ADEQUATE COMPENSATION. Just value of property taken under power of eminent domain, payable in money. Buffalo, etc., R. Co. v. Ferris, 26 Tex. 588. Market value of property when taken. Louisiana Highway Commission v. Guidry, 176 La. 389, 146 So. 1, 5. It includes interest. Tex-arkana & Ft. S. Ry. Co. v. Brinkman, Tex.Civ. App., 288 S.W. 852, 853. It may include the cost or value of the property to the owner for the pur-poses for which he designed it. Elbert County v. Brown, 16 Ga.App. 834, 86 S.E. 651, 656.
Such only as puts injured party in as good a condition as he would have been in if injury had not been inflicted. Town of Winchester v. Cox, 129 Conn. 106, 26 A.2d 592, 597.
ADEQUATE CONSIDERATION. One which is equal, or reasonably proportioned, to the value of that for which it is given. 1 Story, Eq.Jur. §§ 244-247. One which is not so disproportionate as to shock our sense of that morality and fair deal-ing which should always characterize transac-tions between man and man. U. S. Smelting, Refining & Milling Co. v. Utah Power & Light Co., 197 P. 902, 905, 58 Utah, 168. Fair and reasonable under circumstances. Boulenger v. Morison, 88 Cal.App. 664, 264 P. 256, 259. Reasonably just and equitable. Laguna Land & Water Co. v. Green-wood, 92 Cal.App. 570, 268 P. 699, 700.
ADEQUATE. OR REASONABLE FACILITIES. Such railroad facilities as might be fairly de-manded, with regard to size of place, extent of demand for transportation, cost of furnishing ad-ditional accommodation asked for, and to all other facts which would have bearing upon question of conveniente and cost. Kurn v. State, 175 Okl. 379, 52 P.2d 841, 843.
ADEQUATE PREPARATION. Embraces full con-sultation with accused, interviews with witnesses, study of facts and law, and determination of char-acter of defense to be made and policy to be fol-lowed during trial. Nelson v. Commonwealth, 295 Ky. 641, 175 S.W.2d 132, 133.
ADEQUATE PROVOCATION. An adequate prov-ocation to cause a sudden transport of passion that may suspend the exercise of judgment and exclude premeditation and a previously formed design is one that is calculated to excite such anger as might obscure the reason or dominate the volition of an ordinary reasonable man. Com-monwealth v. Webb, 252 Pa. 187, 97 A. 189, 191.
ADEQUATE REMEDY. One vested in the com-plainant, to which he may at all times resort at his own option, fully and freely, without let or hindrance. Wheeler v. Bedford, 7 A. 22, 54 Conn. 244; State ex rel. Heimov v. Thomson, 131 Cono. 8, 37 A.2d 689, 692. Suitable, proportionate, or sufficient. Fischer v. Damm, 36 Ohio App. 515, 173 N.E. 449, 451.
A remedy which is plain and complete and as practical and efilcient to the ends of justice and its prompt ad-núnistration as the remedy in equity. Farmers & Traders Bank v. Kendrick, 341 Mo. 571, 108 S.W.2d 62, 64.
A remedy that affords complete relief with reference to the particular matter in controversy, and is appropriate to the circumstances of the case. State v, Huwe. 103 Ohio St. 546, 134 N.E. 456, 459. A remedy to be adequate, preclud-ing resort to mandarnus, must not only be one placing re-lator in statu quo, but must itself enforce in some way per-formance of the particular duty. State v. Erickson, 104 Conn. 542, 133 A. 683, 686. Must reach end intended, and actually campe’ performance of duty in question. Bucha-nen v. Buchanan, 124 Va. 255. 6 S.E.2d 612, 620. Must be plain, accurate, certain, speedy, specific, and appropriate to the particular circumstances, and must also be equally as convenient, beneficial. and effective as the remedy by mandamus. Simpson v. Williams Rural High School Dist., Tex.Civ.App., 153 S.W.2d 852, 856.
ADESSE. In the civil law; to be present; the opposite of abesse. Calvin.
ADEU. Without day, as when a matter is finally dismissed by the court. Alez adeu, go without day. Y. B. 5 Edw. II. 173. See Adieu.
ADFERRUMINATIO. In the civil law, the weld-ing together of iron; a species of adjunctio, (q. v.). Called also ferruniinatio. Mackeld.Rom.Law, § 276; Dig. 6, 1, 23, 5.
ADHERENCE. In Scotch law, the narre of a form of action by which the mutual obligation of mar-riage may be enforced by either party. Bell. It corresponds to the English action for the restitu-tion of conjugal rights. Wharton.
ADHERING
ADHERING. Joining, leagued with, cleaving to; as, "adhering to the enemies of the United States."
"Adhering" consists in giving to the United States the loyalty due from a citizen. United States v. Stephan, D.C. Mich., 50 F.Supp. 738, 741.
Any intentional act furthering hostile designs of enemies of the United States, or an act which intentionally strengthens or tends to strengthen enemies of the United States, or which weakens or tends to weaken power of the United States to resist and attack such enemies. constitutes "adhering" to such enemies. United States v. Haupt, D.C. III., 47 F.Supp. 836, 839.
Rebeis, being citizens, are not "enemies," within the meaning of the constitution; hence a conviction for trea-son, in promoting a rebellion, cannot be sustained under that branch of the constitutional definition which speaks of "adhering to their enemies, giving them aid and comfort."’ United States v. Greathouse, 2 Abb.U.S. 364, Fed.Cas.No. 15,254.
ADLIESION. The entrance of another state into an existing treaty with respect only to a part of the principies laid clown or the stipulations agreed to. Opp.Int.L. § 533.
Properly speaking, by adhesion the third state becomes a party only to such parts as are spe-cifically agreed to, and by accession it accepts and is bound by the whole treaty. See Accession.
ADHIBERE. In the civil law, to apply; to em-ploy; to exercise; to use. Adhibere to use care. Adhibere vine, to employ force.
ADIATION. A term used in the laws of Holland for the application of property by an executor. Wharton.
ADIEU. L. Fr. Without day. A common term in the Year Books, implying final dismissal from court.
ADIPOCERE. A waxy substance (chemically margarate of ammonium or ammoniacal soap) formed by the decomposition of animal matter protected from the air but subjected to moisture; in medical jurisprudence, the substance into which a human cadaver is converted which has been buried for a long time in a saturated soil or has lain long in water.
ADIRATUS. Lost; strayed; a price or value set upon things stolen or lost, as a recompense to the owner. Cowell.
ADIT. In mining law, an entrance or approach; a horizontal excavation used as an entrance to a mine, or a vent by which ores and water are car-ried away; an excavation "in and along a lode," which in statutes of Colorado and other mining states is made the equivalent of a discovery shaft. Elecfro-Magnetic M. & D. Co. v. Van Auken, 9 Colo. 204, 11 P. 80.
ADITUS. An approach; a way; a public way. Co.Litt. 56a.
ADJACENT. Lying near or close to; sometimes, contiguous; neighboring. Ex parte Jeffcoat, 108 Fla. 207, 146 So. 827. Adjacent implies that the two objects are not widely separated, though they may not actually touch, Harrison v. Guilford County, 218 N.C. 718, 12 S.E.2d 269, while adjoin-ing imports that they are so joined or united to each other that no third object intervenes. Wolfe v. Hurley, D.C.La., 46 F.2d 515, 521.
A word of flexible meaning, depending opon context and suhject matter.. U. S. v. Denver & R. G. Ry. Co., D.C. Colo., 31 F. 886: Johnston v. Davenport Brick & Tila Co., D.C.Iowa, 237 F. 668, 669.
Suburbs of city not within limits of another municipali-ty though a long strip of land 10 feet wide connected the property with city limits. Beller v. City of Dallas, Tex. Civ.App., 177 S.W.2d 231, 235.
ADJECTIVE LAW. The aggregate of rules of procedure or practice. As opposed to that body of law which the courts are established to ad-minister, (called "substantive law,") it means the rules according to which the substantive law is administered. That part of the law which pro-vides a method for enforcing or maintaining rights, or obtaining redress for their invasion. Maurizi v. Western Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268, 272. Holl.Jur. 61,238.
ADJOINING. The word in its etymological sense, means touching or contiguous, as distinguished from lying near to or adjacent. Broun v. Texas & N. O. R. Co., Tex.Civ.App., 295 S.W. 670, 674; Plainfield-Union Water Co. v. Inhabitants of City of Plainfield, 84 N.J.Law, 634, 87 A. 448, 450. Tú be in contact with; to abut upon. State ex rel. Boynton v. Bunton, 141 Kan. 103, 40 P.2d 326, 328. And the same meaning has been given to it when used in statutes. City of New York v. Alheidt, 151 N.Y.S. 463, 464, 88 Misc. 524. See Adjacent.
ADJOURN. To put off; defer; postpone. To postpone action of a convened court or body until another time specified, or indefinitely, the latter being usually called to adj.ourn sine die. Bispham v. Tucker, 2 N.J.L. 253; Reynolds v. Cropsey, 241 N.Y. 389, 150 N.E. 303. To suspend or recess dur-ing a meeting which continues in session. Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510, 512.
Suspending business for a time, delaying. Prob-ably, without some limitation, it would, when used with reference to a sale on ‘foreclosure, or any judicial proceeding, properly include the fixing of the time to which the postponement was made. Waldrop v. Kansas City Southern Ry. Co., 131 Ark. 453, 199 S.W. 369, 371, L.R.A.1918B, 1081.
ADJOURNAL. A term applied in Scotch law and practice to the records of the criminal courts. The original records of criminal trials were called "bukis of adiornale," or "books of adjournal," few of which are now extant. An "act of ad-journal" is an order of the court of justiciary entered on its minutes.
ADJOURNAMENTUM EST AD DIEM DICERE SEU DIEM DARE. An adjournment is tú appoint a day or give a day. 4 Inst. 27. Hence the formu-la "eat sine die."
ADJOURNATUR. L. Lat. It is adjourned. A
word with which the old reports very frequently conclude a case. 1 Ld.Raym. 602; 1 Show. 7; 1 Leon. 88.
A continuation of the same meeting, and at such adjourned meeting the governing body can do any act which might have been done if no adjourn-ment had taken place, and limitations imposed on governing body as regards action at original meet-ing obtain at adjourned meeting. Vogel v. Parker, 118 N.J.L. 521, 193 A. 817, 818. One ordered by board at regular meeting, and which is to con-vene after termination of such regular meeting and prior to next regular meeting. Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510, 513.
ADJOURNED SUMMONS. A summons taken out in the chambers of a judge, and afterwards taken into court to be argued by counsel.
ADJOURNED TERM. In practice, a continuance, by adjournment, of a regular term. Harris v. Gest, 4 Ohio St. 473; Kingsley v. Bagby, 2 Kan. App. 23, 41 P. 991. Distinguished from an "addi-tional term," which is a distinct term. Harris v. Gest, 4 Ohio St. 473; Kingsley v. Bagby, 2 Kan. App. 23, 41 P. 991. A continuation of a previous or regular term; the same term prolonged, where-in power of court over business which has been done, and the entries made at the regular term, continues, Van Dyke v. State, 22 Ala. 57; Carter v. State, 14 Ga.App. 242, 80 S.E. 533, 534.
ADJOURNMENT. A putting off or postponing of business or of a session until another time or place; the act of a court, legislative body, public meeting, or officer, by which the session or assem-bly is dissolved, either temporarily or finally, and the business in hand dismissed from considera-tion, either definitely or for an interval. If the adjournment is final, it is said to be sine die. See Johnson City v. Tennessee Eastern Electric Co., 133 Tenn. 632, 182 S.W. 587, 589.
In the civil law a calling into court; a sum-moning at an appointed time. Due Cange.
ADJOURNMENT DAY. A further day appointed by the judges at the regular sittings at nisi prius to try issue of fact not then ready for trial.
ADJOURNMENT DAY IN ERROR. In English practice, a day appointed some days before the end of the term at which matters left undone on the affirmance day- are finished. 2 Tidd, Pr. 1176.
ADJOURNMENT IN EYRE. The appointment of a day when the justices in eyre mean to sit again. Cowell; Spelman.
ADJOURNMENT SINE DIE. An adjournment without setting a time for another meeting or ses-sion. See Sine Die.
ADJUDGE. To pass on judicially, to decide, set-tle, or decree, or to sentence or condemn. People v. Raye, 364 III. 72, 3 N.E.2d 972, 975.
Judgment of a court of competent jurisdiction; equiva-lent of convicted and sentenced. In re Tarlo’s Estate, 315 Pa. 321, 172 A. 139, 140. In-iones a judicial determination of a fact, and the entry of a judgment. Department of Banking v. Hedges, 136 Neb. 382, 286 N.W. 277, 283. Does not mean the same as deented contra, under statute, State v. District Court, 64 Mont. 181, 208 P. 952, 955. Blaufus v. People, 69 N.Y. 107, 25 Am.Rep. 148. Predicated
Pa. 301. Compare Drinkhouse v. Van Ness, 202 Cal. 359, 260 P. 869, 874; People ex rel. Strohsahl v. Strohsahl, 222 N.Y.S. 319, 324, 221 App.Div. 86.
ADJUDICATAIRE. In Canadian law, a purchaser at a sheriff’s sale. See 1 Low.Can. 241; 10 Low. Can. 325.
ADJUDICATE. To settle in the exercise of ju-dicial authority. To determine finally. Synony-mous with adJudge in its strictest sense. United States v. Irwin, 8 S.Ct. 1033, 127 U.S. 125, 32 L.Ed. 99; Street v. Benner, 20 Fla. 700.
ADJUDICATEE. In French and civil law, the purchaser at a judicial sale. Brent v. New Or-leans, 6 So. 793, 41 La.Ann. 1098.
ADJUDICATIO. In the civil law, an adjudication. The judgment of the court that the subject-matter is the property of one of the litigants; confirma-tion of title by judgment. Mackeld.Rom.Law, § 204.
ADJUDICATION. The giving or pronouncing a judgment or decree in a cause; also the judgment given. People ex rel. Argus Co. v. Hugo, 168 N.Y. S. 25, 27, 101 Misc. 481. Or the entry of a decree by a court in respect to the parties in a case. Samuel Goldwyn, Inc., v. United Artists Corpora-tion, C.C.A.Del., 113 F.2d 703, 706.
It implies a hearing by a court, after notice, of legal evidence on the factual issue involved. Genzer v. Fillip, Tex.Civ.App., 134 S.W.2d 730, 732. The equlvalent of a "determination." Campbell v. Wyoming Development Co., 55 Wyo. 347, 100 P.2d 124, 132. And contemplates that’the claims of all the parties thereto have been considered and set at rest. Miller v. Scobie, 152 Fla. 328, 11 So.2d 892, 894. The term is principally usecl in bankruptcy proceedings, the adjudication being the order which declares the debtor to be a bankrupt. First Nat. Bank v. Pothuisje, 217 Ind. 1, 25 N.E.2d 436, 438, 130 A.L.R. 1238.
French Law
A sale made at public auction and upon com-petition. Adjudications are voluntary, judicial, or administrative. Duverger.
Seotch Law
A species of diligente, or process for trans-ferring the estate of a debtor to a creditor, car-ried on as an ordinary action before the court of session. A species of judicial sale, redeemable by the debtor. A decreet of the lords of session, ad-judging and appropriating a person’s lands, here-ditaments, or any heritable right to belong to his creditor, who is called the "adjudger," for payment or performance. Bell; Ersk.Inst. c. 2, tit. 12, §§ 39-55; Forb.Inst. pt. 3, b. 1, c. 2, tit. 6.
Adjudication contra hwreditatem jacentem. When a debtor’s heir apparent renounces the succession, any creditor may obtain a. decree cognitionis cansó, the purpose of which is that the amount of the debt may be ascertained so that the real estate may be adjudged.
Adjudication in bankruptcy. See Bankruptcy.
Adjudication in implement. An action by a gran-tee against his grantor to compel him to com• plete the title.
ADJUNCT. Something added to another. New York Trust Co. v. Carpenter, C.C.A.Ohio, 250 F. 668, 672.
An additional juclge sometimes appointed in the Court of Delegates, q. v.
ADJUNCTIO. In the civil law, adjunction; a species of acccssio, whereby two things belong-ing to different proprietors are brought into firm connection with each other; such as interweaving, (intertextura); welding together, (adferrumina-tio); soldering together, (applumbatura); paint-ing, (pictura); writing, (scriptura) ; building, (inadificatio); sewing, (satio); and planting, (plantatio). Inst. 2, 1, 26–34; Dig. 6, 1, 23; Mackeld.Rom.Law, § 276. See Accessio.
ADJUNCTION. In civil law, the attachment or union permanently of a thing belonging to one person to that belonging to another. This union may be caused by inclusion, as if one man’s dia-mond be set in another’s ring, or by soldering, sewing, construction, writing, or painting.
The common law implicitly adopts the civil law doctrines. See 2 Bla.Com. 404. See Accession.
One associated with another in a subordinate or an auxiiiary manner; an associate.
ADJUNCTS. Additional judges sometimes ap-pointed in the Court of Delegates, q. v. See Shel-ford, Lun. 310; 1 Hagg.Eccl.Rep. 384; 2 Id. 84; 3 id. 471.
ADJUNCTUM ACCESSORIUM. An accessory or appurtenance.
ADJURATION. A swearing or binding upon oath.
ADJUST. To settle or arrange; to free from differences or discrepancies; to bring to satis-factory state so that parties are agreed, as to ad-just amount of loss by fire. Western Loggers’ Ma-chinery Co. v. National Union Fire Ins. Co., 136 Or. 549, 299 P. 311, 312. ContYoversy to property or estate, In re Sidman’s Estate, 278 N.Y.S. 43, 154 Alise. 675. To bring to proper relations; to settle; Jeff Davis County v. Davis, Tex.Civ.App., 192 S.W. 291, 295. To determine and apportion an amount due. Flaherty v. Insurance Co., 46 N.Y.S. 934, 20 App.Div. 275. Accounts are adjusted when they are settled and a balance struck. Townes y. Birchett, 12 Leigh Va. 173, 201. It is sometimes used in the sense of pay. See Lynch v. Nugent, 80 Iowa, 422, 46 N.W. 61. When used in reference to a liquidated claim, Combination Oil & Gas Co. v. Brady, Tex.Civ.App., 96 S.W.2d 415, 416.
ADJUSTED COST BASIS. For income tax pur-poses, original cost plus additions to capital less depreciation results in the "adjusted cost basis." Herder v. Helvering, 106 F.2d 153, 162, 70 App.D. C. 287.
ADJUSTER. One appointed to adjust a matter, to ascertain or arrange or settle. Commercial CreditCo. v. Macht, 89 Ind.App. 59, 165 N.E. 766. One who malees any adjustment or settlement. Popa v. Northern Ins. Co., 192 Mich. 237, 158 N.W. 945, 946, or who determines the amount of a claim, as
a claim against an insurance company. Sam-
.
ami( v. Insurance Co. of North America, 99 Or. 565, 194 P. 1095. He is a special agent for the person or company for whom he acts. Bond v. National Fire Ins. Co., 77 W.Va. 736, 88 S.E. 389, 394; Howe v. State Bar of California, 212 Cal. 222, 298 P. 25, 27. Compare Manheim v. Standard Fire Ins. Co. of Hartford, Conn., 84 Wash. 16, 145 P. 992.
ADJUSTMENT. An arrangement; a settlement. Henry D. Davis Lumber Co. v. Pacific Lumber Agency, 220 P. 804, 805, 127 Wash. 198.
In the ]aw of insurance, the adjustment of a loss ts the
ascertainment of its amount- and the ratable distrihution of it among those liable to pay it; the settling and as-certaining the amount of the indernnity which the assured, alter all allowances and deductions made, is entitled to re-ceive under the policy, and fixing the proportion which each underwriter is Hable to pay. Marsh.Ins. 4th Ed. 499; 2 Phil.Ins. § 1814, 1815; New York v. Insurance Co., 39 N.Y. 45, 100 Am.Dec. 400; Whipple v. Insurance Co., 11 11,i, I. 139.
ADJUTANT GENERAL. The term "civil adju-tant general" is used as one of convenience mere-ly to designate state adjutant general who has not been officially recognized by War Department. People v. Newlon, 77 Colo. 516, 238 P. 44, 47.
ADJUVARI QUIPPE NOS, NON DECIPI, BENE-FICIO OPORTET. We ought to be favored, not injured by that which is intended for our benefit. (The species of bailment called "loan" must be to the advantage of the borrower, not to his detri-ment.) Story, Bailm. § 275. See 8 El. & Bl. 1051.
ADLAMWR. In Welsh law, a proprietor who, for some cause, entered the service of another proprie-tor. and left him after the expiration of a year and a day. He was liable to the payment of 30 pence to his patron. Wharton.
ADLEGIARE. To purge one’s self of a crime by oath.
ADMANUENSIS. A person who swore by laying his hands on the book.
ADMEASUREMENT. Ascertainment by measure; measuring out; assignment or apportionment by measure, that is, by fixed quantity or value, by certain limits, or in definite and fixed proportions.
ADMEASUREMENT OF DOWER. In practice, a remedy which lay for the heir on reaching his majority to rectify an assignment of dower made during his minority, by which the doweress had received more than she was legally entitled to. 2 Bl.Comm. 136; Gilb. Uses, 379.
The remedy is of rare occurrence. Iones v. Brewer, 1 Pick. (Masa.) 314; McCormick v. Taylor, 2 Ind. 336. In some of the states the statutory proceeding enabling a widow to compel the assignment of dower is called "ad-measurement of dower."
ADMEASUREMENT OF PASTURE. In English law, a writ which lay between those that have common of pasture appendant, or by vicinage, in cases where any one or more of them surcharges the common with more cattle than they ought. Bract. fol. 229a; 1 Crabb, Real Prop. p. -318, § 358. The remedy is now abolished in England; 3 Sharsw.Bla.Com. 239, n.; and in the United States; 3 Kent 419.
ADMEASUREMENT, WRIT OF. It lay against persons who usurped more than their share, in the two following cases: Admeasurement of dow-er, and admeasurement of pasture. Termes de la Ley.
ADMENSURATIO. In old English law, admeas-urement. Reg.Orig. 156, 157.
ADMEZATORES. In old Italian law, persons chosen by the consent of contending parties, to decide questions between them. Literally, media-tors. Spelman.
ADMINICLE. Used as an English word in the statute of 1 Edw. IV, c. 1, in the sense of aid, or support.
In civil law, imperfect proof. Merl. Répert. See Adminiculum.
In Scotch law, an aid or support to something else. A collateral deed or writing, referring to another which has been lost, and which it is in general necessary to produce .before the tenor of the lost deed can be proved by parol evidence. Ersk.Inst. b. 4, tit. 1, § 55.
ADMINICULAR. Auxiliary or subordinate to. "The murder would be adminicular to the rob-bery," (i. e., committed to accomplish it.) The Marianna Flora, 3 Mason, 121, Fed.Cas.No.9080.
ADMINICULAR EVIDENCE. Auxiliary or sup-plementary evidence; such as is presented for the purpose of explaining and completing other evi-dence. (Chiefly used in ecclesiastical law)
ADMINICULATE. To give adminicular evidence.
ADMINICULATOR. An officer in the Romish church, who administered to the wants of widows, orphans, and afflicted persons. Spelman.
ADMINICULUM. Lat. An adminicle; a prop or support; an accessory thing. An aid or support to something else, whether a right or the evidence of one. It is principally used to designate evi-dence adduced in aid or support of other evidence, which without it is imperfect. Brown.
ADMINISTER. To manage or conduct. Glocksen v. Holmes, 299 Ky. 626, 186 S.W.2d 634, 637. To discharge the duties of an office; to take charge of business; to manage affairs; to serve in the conduct of affairs, in the application of things to their uses; to settle and distribute the estate of a decedent. Hunter v. City of Louisville, 208 Ky. 562, 271 S.W. 690, 691.
Also, to give, as an oath; to direct or cause to be taken. Gilchrist v. Comfort, 34 N.Y. 239; Brin-son v. State, 89 Ala. 105, 8 So. 527; State v. Van Wormer, 103 Kan. 309, 173 P. 1076, 1081.
To apply, as medicine or a remedy; to give, as a dose or something beneficial or suitable. Bar-field v. State, 71 Okl.Cr. 195, 110 P.2d 316, 317. To cause or procure a person to take some drug or other substance into his or her system; to direct and cause a medicine, poison, or drug to be taken into the system. State v. Jones, 4 Pennewill (Del.) 109, 53 Atl. 861; McCaughey v. State, 156 Ind. 41, 59 N.E. 169.
Neithér fraud nor deception is a necessary In-gredient in the act of administering poison. To force poison into the stomach of another; to com-pel another by threats of violente to swallow poison; to furnish poison to another for the pur-pose and with the intention that the person to whom it is delivered shall commit suicide there-with, and which poison is accordingly taken by the suicide for that purpose; or to be present at the taking of poison by a suicide, participating in the taking thereof, by assistance, persuasion, or otherwise,—each and all of these are forms and modes of "administering" poison. Blackburn v. State, 23 Ohio St. 146.
ADMINISTRATION. Managing or conduct of an office or employment; the performance of the ex-ecutive duties of an institution, business, or the like. Webb v. Frohmiller, 52 Ariz. 128, 79 P.2d 510.
In public law, the administration of govern-ment means the practical management and direc-tion of the executive department, or of the public machinery or functions, or of the operations of the various organs of the sovereign; direction or oversight of any office, service, or employment. Greene v. Wheeler, C.C.A.Wis., 29 F.2d 468, 469. The terco "administration" is also conventionally applied to the whole class of public functionaries, or thóse in charge of the management of the ex-ecutive department. House v. Creveling, 147 Tenn. 589, 250 S.W. 357, 358.
ADMINISTRATION EXPENSE. "Administrative expenses" imply disbursements incidental to the management of the estate for which credit would be allowed on a voucher. In re Hooker’s Estate, 18 N.Y.S.2d 107, 112, 173 Misc. 515. Those deducti-ble in computing estate tax are merely charges which are proper deductions and in ordinary course of administration will ultimately be al-lowed. Bourne v. U. S., Ct.C1., 2 F.Supp. 228, 231.
ADMINISTRATION OF ESTATES. Supervision by an executor or administrator. Peterson v. Demmer, D.C.Tex., 34 F.Supp. 697, 700. Manage-ment of estate by independent executrix. Palf rey v. Harborth, Tex.Civ.App., 158 S.W.2d 326, 327. Normally involves the collection, management, and distribution of estate, including legal proceed-ings necessary to satisfy claims of creditors, next of kin, legatees, or whatever other parties may have any claim to property of a deceased person. Hawley v. Hawley, 114 F.2d 745, 748, 72 App.D.C. 376.
The management and settlement of the estate of an In-testate, or of a testator who has no executor, performed under the supervision of a court, by a person duly quali
ADMINISTRATION
and lega)ly appointed, and usually involving (1) the col-lection of the decedent’s assets; (2) payment of debts and claims against him and expenses; (3) distributing the re-mainder of the estate among those entitled thereto.
The term is applied broadly to denote the management of an estate by an executor, and also the management of estates of minore, lunatics, etc., in those cases where trus-tees have been appointed by authority of law to take charge of such estates in place of the legal owners, Bouvi-er; Crow v. Hubard, 62 Md. 565.
Administration is principally of the following kinds, viz.:
Ad colligendum bona defuncti. To collect the goods of the deceased. Special letters of administration granted to one or more persons, authorizing them to collect and pre-serve the goods of the deceased, are so called. 2 Bl.Comm. 5Q5; 2 Steph.Comm. 241. These are otherwlse termed "letters ad colligendum," and the party to whom they are granted, a "collector."
An administrator ad colligendum is the mere agent or officer of the court to collect and preserve the goods of the deceased until some one is clothed with authority to administer them, and cannot complain that another Is ap-pointed administrator In chief. Flora v. Mennice, 12 Ala. 836.
Ancillary administration is auxiliary and subordinate to the administration at the place of the decedent’s domicile; it may be taken out in any foreign state or country where assets are locally situated, and is merely for the purpose of collecting such assets and paying debts there.
Cum testamento annexo. Administration with the will annexed. Administration granted in cases where a testator makes a will, without narning any executors; or where the executors who are named in the will are incompetent to act, or refuse to act; or in case of the death of the executors, or the survivor of them. 2 B1.Comm. 503, 504.
De bonis non. Administration of the goods not ad-ministered. Administration granted for the purpose of ad-ministering such of the goods of a deceased person as were not administered by the former executor or administrator. Tucker v. Horner, 10 Phila.Pa. 122.
De bonis non cum testamento annexo. That which 1s granted when an executor dies leasing a part of the es-tate unadministered. Cien-lens v. Walker, 40 Ala. 189.
Durante absentia. That which is granted during the ab-sence of the executor and until he has proved the will.
Durante minori cetate. Where an infant is made execu-tor; in which case administration with will annexed is granted to another, during the minority of such executor, and untll he shall attain hls lawful age to act. See Godo. 102.
Foreign administration. That which is exercised by vir-tue of authority properly conferred by a foreign power.
Pendente lite. Administration during the suit. Ad-ministration granted during the pendency of a suit touch-ing the validity of a will. 18 N.J.Law, 15, 20.
Public administration is such as is conducted (in some jurisdictions) by an officer called the public administrator, who is appointed to administer in cases where the intes-tate has left no person entitled to apply for letters.
General administration. The grant of authority to ad-minister upon the entire estate of a decedent, ,,vithout re-striction or limitation, whether under the intestate laws or with the will annexed. Clemens v. Walker, 40 Ala. 198.
Special administration. Authority to administer upon some few particular effects of a decedent, as opposed to authority to administer his w-holc estate. In re Senate Bill, 12 Colo. 193, 21 P. 482.
Letters of Administration. The instrument by which an administrator or administratrig is authorized by the pro-bate court, surrogate, or other proper officer. to have the charge and administration of the goods and cha ttels of an intestate. See Mutual Ben. L. Ins. Co. v. Tisdale, 91. U.S. 243, 23 L.Ed. 314.
ADMINISTRATION SUIT. In English practico, a suit brought in chancery, by any one interested, for administration of a decedent’s estate, when there is doubt as to its solvency. Stimson.
ADMINISTRATIVE. Connotes of or pertains to administration, especially management, as by managing or conducting, dtrecting, or superintend-ing, the execution, application, or conduct of per-sons or things. Fluet v. McCabe, Mass., 299 Mass. 173, 12 N.E.2d 89, 93. Particularly, having the character of executive or ministerial action. Mauritz v. Schwind, Tex.Civ.App., 101 S.W.2d 1085, 1090. In this sense, administrative func-tions or acts are distinguished from such as are judicial. People v. Austin, 46 N.Y.Supp. 526, 20 App.Div. 1. Synonymous with "executive." Sheely v. People, 54 Colo. 136, 129 P. 201, 202; Saint v. Allen, 126 So. 548, 555, 169 La. 1046. An ad-ministrative act concerns daily affairs as distin-guished from permanent matters. People v. Graham, 70 Colo. 509, 203 P. 277, 278.
ADMINISTRATIVE ACTS. Acts of an officer which are to be deemed as acts of administration, and are commonly called "administrative acts" and classed among those governmental powers properly assigned to the executive department, ‘are those acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body or such as are devolved upon it by the organic law of its ex-istence. Ex parte McDonough, 27 Cal.App.2d 155, 80 P.2d 485, 487.
ADMINISTRATIVE AGENCY. An agency of the sovereign power charged wíth administering par-ticular legislation. Examples are compensation and industrial commissions, Joseph H. Weider-hoff, Inc., v. Neal, D.C.Mo., 6 F.Supp. 798, 799; Federal Trade Commission, Hastings Mfg. Co. v. Federal Trade Commission, 153 F.2d 253, cer-tiorari denied 66 S.Ct. 1344, 328 U.S. 853, 90 L.Ed. 1626; tax commissions, First State Bank of Moun-tainair v. State Tax Commission, 59 P.2d 667, 40 N.M. 319; public service commissions, New York Cent. R. Co. v. Public Service Commission, 7 N.E. 2d 957, 212 Ind. 329; and the like.
ADMINISTRATIVE BOARD. The term is very broad and includes bodies exercising varied func-tions, some of which involve orders made or other acts done ex parte or without full hearing as to the operative facts, while others are done only af ter such a notice and hearing, and the functions of the former kind are plainly "admin-istrative" and those of the latter are "quasi ju-dicial". Beaverdale Memorial Park v. Danaher, 127 Conn. 175, 15 A.2d 17, 21.
"Administrative boards" differ from ”courts" in that
boards frequently rcpresent public inlerests entrusted to boards, whereas courts are concerned with litigating rights of parties with adverse interests. Rommell v. Walsh, 15 A.2d 6, 9, 127 Conn. 16.
ADMINISTRATIVE DISCRETION. "Administra-tive discretion" means that the doing of acts or things required to be done may rest, in part at least, upon considerations not entirely susceptible of proof or disproof and at times which consider-ing the circumstances and subject-matter cannot be supplied by the Legislature, and, a statute con-fers such discretion when it refers a commission or officer to beliefs, expectations, or tendencies
instead of facts for the exercise of the powers conferred. Culver v. Smith, Tex.Civ.App., 74 S. W.2d 754, 757.
ADMINISTRATIVE LAW. That branch of pub-lic law which deals with the various organs of the sovereign power considered as in motion, and prescribes in detail the manner of their activity, being concerned with such topics as the collection of the revenue, the regulation of the military and naval forces, citizenship and naturalization, sani-tary measures, poor laws, coinage, police, the public safety and morals, etc. See Holl.Jur. 305-307.
ADMINISTRATIVE OFFICER. Politically and as used in constitutional law, an officer of th, execu-tive department of government, and generally one of inferior rank; legally, a ministerial or execu-tive officer, as distinguished from a judicial offi-cer. People v. Salsbury, 134 Mich. 537, 96 N.W. 936.
One who performs mere ministerial or administrativo functions. In re Gold, C.C.A.N.J., 93 F.2d 676, 680. 061-cero that are neither judicial nor legislative; executive ofacers, Spivey v. State, 104 P.2d 263, 277, 69 Okl.Cr. 397. Such as : The clerk of circuit court, State ex rel. and to Use of City of St. Louis v. Priest, 348 Mo. 37, 152 S.W.2d 109, 112. Receivers in bank liquidation proceedings, People ex rel. Nelson v. Crawford State Say, Bank, 310 III.App. 533, 34 N.E.2d 872. State highway commissioner, Strobel Steel Const. Co. v. Sterner, 125 N.J.L. 622, 18 A.2d 28, 29.
ADMINISTRATIVE REMEDY. One not judicial, but provided by commission or board created by legislative power. Kansas City Southern R. Co. v. Ogden Levee Dist., C.C.A.Ark., 15 F.2d 637, 642. Against wrongful assessment of benefits by a levee district. Board of Directors of St. Francis Levee Dist. v. St. Louis-San Francisco Ry. Co., C.C.A.Ark., 74 F.2d 183, 188.
ADMINISTRATOR, in the most usual sense of the word, is a person to whom letters of admin-istration, that is, an authority to administer the estate of a deceased person, have been gramed by the proper court. A representative of limited authority, whose duties are to collect assets of estate, pay its debts, and distribute residue to those entitled. Smith v. White’s Estate, 108 Vt, 473, 188 A. 901, 904. A technical trustee. In re Watkins’ Estate, Vt., 41 A.2d 180, 188.
He resembles an executor, but, being appointed by the court, and not by the deceased, he has to give security for the due administration of the estate, by entering into a bond with sureties, call-ed the administration bond. Smith v. Gentry, 16 Ga. 31; Collamore v. Wilder, 19 Kan. 78; C orm-ley v. Watson, 177 Ga. 763, 171 S.E. 280, 281.
By the law of Scotland the father is what is called the "administrator-in-law" for his children. As such, he is ipso jure their tutor while they are pupils, and their curator during their minority. The father’s power ex-tends over whatever estate may descend to his children, unless where that estate has been placed by the donor or grantor under the charge of special trustees or managers. This power in the father ceases by the child’s discontinu-ing to reside with him, unless he condrines to live at the father’s expense; and with rev-ard to dati-hte-s it censes on their marriage, the husband being the legal curator of his wife. Bell.
Civil Law
A manager or conductor of affairs, especially the affairs of another, in his name or behalf. A manager of public affairs in behalf of others. Calvin. A public officer, ruler, or governor. Nov. 95, gl.; Cod. 12, 8.
Domestic
One appointed at the place of the domicile of the decedent; distinguished from a foreign or an ancillary administrator.
Foreign
One appointed or qualified under the laws of a foreign state or country, where the decedent was domiciled.
Public
An official provided for by statute in some states to administer upon the property of intestates in certain cases. Seo Rocca v. Thompson, 32 S.Ct. 207, 223 U.S. 317, 56 L.Ed. 453.
ADMINISTRATOR CUM TESTAMENTO AN. NEXO. See Cum Testamento Annexo.ADMINISTRATOR DE BONIS NON. "Adminis-trators de bonis non administratis" are, as the term signifies, persons appointed by the court of probate to administer on the effects of a decedent which have not been included in a former admin-istration. Paul v. Butler, 129 Kan. 244, 282 P. 732, 734.
Where will is set asido as void, administrator subse-quently appointed is not "administrator de bonis non," but administrator of entire estate with power to attack nominated executor’s report. Douglas’ Adm’r v. Douglas’ Ex’r, 48 S.W.2d 11, 14, 243 Ky. 321.
ADMINISTRATOR WITH WILL ANNEXED. One appointed administrator of deceased’s estate after executors named in will refused to act. In re Kenney’s Estate, 41 N.M. 576, 72 P.2d 27, 29, 113 A.L.R. 403.
ADMINISTRATRIX. A woman who administers, or to whom letters of administration have been granted.
ADMINISTRAVIT. Lat. He has administered. Used in the phrase plene administravit, which is the name of a plea by an executor or administra-tor to the ‘effect that he has "fully administered" (lawfully disposed of) all the assets of the estate that have come to his hands.
ADMIRAL. Title of high naval officers; they are of various grades,—rear admiral, vice-admiral, admiral, admiral of the fleet, the last named being the highest. But by Act of Jan. 24, 1873 (17 Stat. 418), certain grades ceased to exist when the offices became vacant.
In old English law, a high officer or magis-trate that had the government of the king’s navy, and the hearing of all causes belonging to the sea. Cowell.
In European law, an officer who presided over the admiralitas, or collegium ammiralitatis. Locc. de Jur.Mar. lib. 2, c. 2, § 1.
ADMIRALITAS. L. Lat. Admiralty; the admir-alty, or court of admiralty.
In European law, an association of private armed vessels for mutual protection and defense against pirates and enemies
ADMIRALTY. A court which has a very exten-sive jurisdiction of maritime causes, civil and criminal, controversies arising out of acts done upon or relating to the sea, and questions of prize.
It is properly the successor of the consular courts, which were emphatically the courts of merchants and sea-going
persona, established in the principal maritime cities on the revival of commerce after the fall of the Western Empire, to supply the want of tribunals that might decide causes arising out of maritime commerce.
Also, the system of jurisprudence relating to and growing out of the jurisdiction and practice of the admiralty courts.
American Law
A tribunal exercising jurisdiction over all mari-time contracts, torts, injuries, or offenses. Pan-ama R. Co. v. Johnson, 44 S.Ct. 391, 264 U.S. 375, 68 L.Ed. 748.
"Admiralty" does not extend to all navigable waters, but is limited to the ocean, navigable rivers running into the ocean, and the Great Lakes and their connections, The Frank G. Fobert, D.C.N.Y., 32 F.Supp. 214, 216.
The jurisdiction of the admiral, and the administration of the admiralty law proper—the local maritime law—as it became a judicial function, has passed into the hands of the courts. Renew v. U. S., D.C,Ga., 1 F.Supp. 256, 259.
English Law
The court of the admiral, perhaps erected by Edward III, 3 Bla.Comm. 69, or as early as the time of Henry I.
The building where the lords of the admiralty transact business.
ADMIRALTY, FIRST LORD OF THE. The nor-mal head of the executive department of state which presides over the naval forces of the king-dom is the lord high admiral, but in practice the functions of the great office are discharged by sev-eral Lords Commissioners, of whom one, being the chief, is called the "First Lord," and is a mem-ber of the Cabinet. He is assisted by other lords, called Sea Lords, and by various secretaries.
ADMISSIBLE. Pertinent and proper to be con-sidered in reaching a decision. Used with refer-ence to the issues to be decided in any judicial proceeding.
As applied to evidence, the term means that it is of such a character that the court or judge is bound to receive it; that is, allow it to be intro-duced.
ADMISSION.
Ball
The order of a competent court or magistra te that a person accused of crime be discharged from actual custody upon the taking of bail. People v. Solomon, 15 Pac. 4, 5 Utah, 277.
Admitting to ball is a judicial act to be performed by a court or judicial oflicer, Trevathan v. Mutilad Life Ins. Co. of New York, 166 Or. 515, 113 P.2d 621, 624; and by "al-, lowing ball" or "admitting to bail" is not meant the formal justification, subscription, or acknowledgment by the sureties, the term first mentioned relating to the order determining that the offense is bailable and fixing the amount of undertaking, and "taking, the ball" rneaning the final acceptance or approval of it by the court. Clatsop County v. Wuopio, 95 Or. 30, 186 P. 547.
English Ecclesiastical Law
The act of the bishop, who, on approval of the clerk presented by the patron, after examination, declares him fit to serve the cure of the church to which he is presented, by the words "admitto te habilem," I admit thee able. 1 Crabb, Real Prop. p. 138, § 123.
Imrnigration Laws
Authorities accepting alien seaman into body of our inhabitants as possible resident. U. S. ex rel. Georgas v. Day, C.C.A.N.Y., 43 F.2d 917, 919.
Membership in Corporation
The act of a corporation or company by which an individual acquires the rights of a member of such corporation or company.
Practice as Attorney at Law
The act by which attorneys and counsellors be-come recognized as officers of the court and are allowed to practice.
Testimony or Evidente
Admission or concession by a party in pleading or as evidence. See Admissions.
ADMISSIONALIS. In European law. An usher. Spelman.
ADMISSIONS. Confessions, concessions or volun-tary acknowledgments made by a party of the existence of certain facts. Roosevelt v. Smith, 40 N.Y.S. 381, 17 Misc. 323. More accurately regard-ed, they are statements by a party, or some one identified with him in legal interest, of the ex-istence of a fact which is relevant to the cause of his adversary. Brooks v. Sessoms, 171 S.E. 222, 223, 47 Ga.App. 554. They are against the interest of the party making them. Little Fay Oil Co. v. Stanley, 90 Okl. 265, 217 P. 377, 378.
It is not essential that an "admission" be contrary to interest of party at time it is made; it is enough if it be inconsistent with position which party takes either in pleadings or at trial. Harvey v. Provandie, 83 N.H. 236, 141 A. 136, 140.
The term "admission" is usually applied to civil trans-actions and to those matters of fact in criminal cases which do not involve criminal intent, while the term "confession" is generally restricted to acknowledgments of guilt. Peo-ple v. Sourisseau, 62 Cal.App.2d 917, 145 P.2d 916, 923. State v. Lindsey, 26 N.M. 526, 194 P. 877, 878.
An "admission" as applied in criminal cases is the avowal of a fact or of circumstances from which guilt may be inferred, but only tending to prove the offense charged, and not amounting to a confession of guilt. Theis v. State, Ga., 164 S.
E. 456, 457. A statement by defendant• of fact or facts pertinent to issues tending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction. Commonwealth v. Elliott, 292 Pa. 16, 140 A. 537, 538. Does not include statements which are part of the res geste. State v. Clark, 102 Mont. 432, 58 P.2d 276, 278.
Direct, called also express, admissions are those which are made in dlrect terms.
lmplied admissions are those which result from some act or failure to act of the party. Part payment of a debt is en admission of liability to pay debt. Hart v. Deshong, Del., 1 Terry 218, 8 A.2d 85, 87. Defendants’ failure to specifi-cally deny their signatures to notes, "admission" that they signed the acknowledgments. Háas v. Johnson, 203 La. 697, 14 So.2d 606, 608. Undenied accusations were implied "admission". State v. Postal, 215 Minn. 427, 10 N.W.2d 373, 378.
Incidental admissions are those made in some other con-nection, or lnvolved in the admission of some other fact.
Judicial admissions are those made in court by a per-son’s attorney for the purpose of being used as a substitute for the regular legal evidence of the facts at the trial. Martín v. State, 46 Okl.Cr. 411, 287 P. 424. Such as are made voluntarlly by a party, which appear of record in the proceedings of the court. Formal acts done by a party or his attorney in court on the trial of a cause for the purpose of dispensing with proof by the opposing party of some fact claimed by the latter to be true. Wiley v. Rutland R. Co., 86 Vt. 504, 86 A. 808, 810. Concession by defendant that she had executed a bill of sale for the automobile to intervener to secure an indebtedness was an "admisshin in judicio" by defendant against her title to the automo-bile. McDay v. Long, 63 Ga.App. 421, 11 S.E.2d 395, 399. But opening statements of counsel are not, technically, "admissions." Wilkey v. State ex rel. Smith, 238 Ala. 595, 192 So. 588, 591. See Acqulescence; Quasi-Admissions; True Admission.
Pleading
The acknowledgment or recognition by one par-ty of the truth of some matter alleged by the opposite party, made in a pleading, the effect of which is to narrow the area of facts or allegations required to be proved by evidence. Connecticut Hospital v. Brookfield, 69 Conn. 1, 36 A. 1017.
An allegation not denied is deemed not controverted, and silente of pleader 1s usually treated as an admission against him for purpose of the action. Doughty v. Pallis-sard, 3 N.Y.S.2d 452, 453, 167 Misc. 55. Generally plead-ings must be regarded as "judicial admissions", rather than ordlnary "admissions". Hughes v. Fort Worth Nat. Bank, Tex.Civ.App., 164 S.W.2d 231, 232.
In con f ession and avoidance, admission of truth of op-posite party’s pleading is made.
Express adrnissions may be made of matters of fact only. See Confession and Avoidance.
In E quity. Partial admissions are those which are de-livered in terms of uncertainty, mixed up with expianatory or qualifying circumstances.
P/enary admissions are those which admit the truth of the matter without qualification, whether it be asserted as from information and belief or as from actual knowl-edge. See Burrell v. Hackley, C.C.N.Y., 35 F. 833.
"Admissions against interest" are any state-ments made by or attributable to a party to an action, which constitute admissions against his interest and tend to establish or disprove any ma-terial fact in the case. Kallner v. Whaley, 148 Neb. 259, 27 N.W.2d 183, 189.
ADMIT. To allow, receive, or take; to suffer one to enter; to give possession; to license. Gregory v. United States, 17 Blatchf. 325, 10 Fed.Cas. 1195.
Confess. Provident Life & Accident Ins. Co. v. Fodder, 99 Ind.App. 556, 193 N.E. 698, 700. Un-equivocal acknowledgment of guilt. Ex parte. Tozier, D.C.Me., 2 F.2d 268, 269. See Admission; Admissions.
ADMITTANCE. In English law, the act of giving possession of a copyhold estate. It is of three kinds: (1) Upon a voluntary grant by the lord, where the land has escheated or reverted to him. (2) Upon surrender by the former tenant. (3) Upon descent, where the heir is tenant on his ancestor’s death. 2 Bla.Comm. 366.
ADMITTENDO CLERICO. An old English writ issuing to the bishop to establish the right of the Crown to make a presentation to a benefice. A writ of execution upon a right of presentation to a benefice being recovered in quare impedit, ad-dressed to the bishop or his metropolitan, requir-ing him to admit and institute the clerk or pre-sentee of the plaintiff. Reg.Orig. 33a.
ADMITTENDO IN SOCIUM. A writ for asso-ciating certain persons, as knights and other gentlemen of the county, to justices of assize on the circuit. Reg.Orig. 206.
ADMIXTURE. A substance formed by mixing; state of being mixed; act of mixing.
ADMONISIL To caution or advise. People v. Pennington, 267 III. 45, 107 N.E. 871, 872. To counsel against wrong practices, or to warn against danger of an offense. Ft. Smith Light & Traction Co. v. Hendrickson, 126 Ark. 377, 189 S. W. 1064, 1067.
ADMONITION. A reprimand from a judge to a person accused, on being discharged, warning him of the consequences of his conduct, and intimating to him that, should he be guilty of the same fault for which he has been admonished, he will be punished with greater severity. Merlin, Répert. The admonition was authorized as a species of punishment for slight misdemeanors. In eccle-siastical law, this is the lightest forro of punish-ment.
Any authoritative oral communication or state-ment by way of advice or caution by the court to the jury respecting their duty or conduct as jurors, the admissibility or nonadmissibility of evidence, or the purpose for which any evidence admitted may be considered by them. Miller v. Noell, 193 Ky. 659, 237 S.W. 373, 374.
ADMONITIO TRINA. The threefold warning given to a ‘prisoner who stood mute, before he was subjected to peine forte et dure (q. v.). 4 BI.Comm. 325; 4 Steph.Comm. 391.
ADMORTIZATION. The reduction of property of lands or tenements to mortmain, in the feudal customs.
ADM’R. Ths abbreviation will be judicially pre-sumed to mean "administrator." Moseley v. Mas-tin, 37 Ala. 216, 221.
ADNEPOS. The son of a great-great-grandson. Calvinus, Lex.
ADNEPTIS. The daughter of a great-great-grand-daughter. Calvinus, Lex.
ADNICHILED. Annulled, canceled, made void. 28 Hen. VIII.
ADNIHILARE. In old English law, to annul; to make void; to reduce to nothing; to treat as nothing; to hold as or for nought.
ADNOTATIO. In the civil law, the subscription of a name or signature to an instrument. Cod. 4, 19, 5, 7.
A rescrlpt (q. v.) of the prince or emperor, signed with his own hand, or sign-manual. Cod. 1, 19, 1. "In the im-perial law, casual homicíde was excused by the indulgence of the emperor, signed with his own,sign-manual, annoto, tione principia." 4 Bl.Comm. 187.
ADOBE. Earth. In arid or desert regions, an alluvial or playa clay from which bricks are made for construction of houses, called "adobe" houses. See Sweeney v. Jackson County, 93 Or. 96, 178 P. 365, 376.
ADOLESCENCE. That age which follows puberty and precedes the age of majority. It commences for males at fourteen, and for females at twelve years, and continues until twenty-one years com-plete.
ADOPT. To accept, appropriate, choose, or select; to make that one’s own (property or act) which was not so originally.
To adopt a route for the transportation of the mail means to take the steps necessary to cause the mail to be transported over that route. Rhodes v. U. S., Dev.Ct.C1. 47. To adopt a contract is to accept it as binding, notwith-standing some defect which entitles the party to repudiate it. Thus, when a person affirms a voidable contract, or ratifies a contract made by his agent beyond his authority, he is sometímes said to adopt it. Sweet. Strictly, how-ever, the word "adopt" should be used to apply to void transactions, while the word "ratify" should be limited to the final approval of a voidable transaction by one who theretofore had the optional right to relieve himself from its obligations. United German Silver Co. v. Bronson, 92 Conn. 266, 102 A. 647, 648. "Adoption" of a contract by one not a party thereto is of the nature of a novation. Edwards v. Heralds of Liberty, 263 Pa. 548, 107 A. 324, 326. See Af-flrm.
To accept, consent to, and put into effective op-eration; as in the case of a constitution, constitu-tional amendment, ordinance, or by-law. Real v. People, 42 N.Y. 282; People v. Norton, 59 Barb. (N.Y.) 191. A Code. City of Albany v. Nix, 21 Ala.App. 164, 106 So. 199, 200. Statements in an application appearing aboye insured’s signature. Republic Mut. Ins. Co. v. Wilson, 66 Ohio App.. 522, 35 N.E.2d 467, 468.
To take into one’s family the child of another and give him or her the rights, privileges, and duties of a child and heir. State v. Thompson, 13 La.Ann. 515; Abney v. De Loach, 84 Ala. 393.
Adoption of children was a thing unknown to the com-mon law, but was a familiar practice under the Roman law and In those countries where the civil law prevails, as France and Spain. Butterfield v. Sawyer, 187 Ill. 598, 58 N.E. 602, 52 L.R.A. 75, 79 Am.St.Rep. 246. Creature of the law, and statutory requirements must be strictly carried out. Owles v. Jackson, 199 La. 940, 7 So.2d 192, 194.
To accept an alien as a citizen or member of a community or state and invest him with corres-ponding rights and privileges, either (in general and untechnical parlance) by naturalization, or by an act equivalent to naturalization, as where a white man is "adopted" by an Indian tribe. Hampton v. Mays, 4 Ind.T. 503, 69 S.W. 1115.
ADOPTION. The taking and receiving as one’s own that to which he bore no prior relation, color-able or otherwise. Davies v. Lahann, C.C.A.N.M., 145 F.2d 656, 659. The act of one who takes an-other’s child into his own family, treating him as his own, and giving him all the rights and duties of his own child. See In re Chambers’ Estate, 183 N.Y.S. 526, 528, 112 Misc. 551. _In manner provided by and with consequences specified in statute. Fisher v. Robison, 329 Pa. 305, 198 A. 81, 82. A juridicial act creating between two persons cer-tain relations, purely civil, of paternity and filia-tion. 6 Demol. § 1; Grimes v. Grimes, 207 N.C. 778, 178 S.E. 573. The relation thereby created is a statutory status, not a contractual relation. Caruso v. Caruso, 13 N.Y.S.2d 239, 241, 175 Misc. 290. Though legal adoption may confer on per-son adopted rights of actual relationship of child, simple "adoption" extends only to his treatment as member of the household. Shepherd v. Sov-ereign Camp, W.O.W., 166 Va. 488, 186 S.E. 113, 116. See, also, Adopt.
Adoption, properly speaking, réfers only to persons who are strangers in blood, In re Lund’s Estate, Cal.App., 148 P.2d 709, 711. And is not synonymous with "legitimation," which refers to persons of the same blood. Blythe v. Ayres, 96 Cal. 532, 31 P. 915, 19 L.R.A. 40. But this dis-tinction ís not always observed. In re Presly’s Estate, 113 Okl. 160, 240 P. 89, 90. It is a relationship artificially cre-ated by statute. Borner v. Larson, 70 N. D. 313, 293 N.W. 836, 839.
ADOPTION BY PUBLIC ACKNOWLEDGMENT. See Legitimate.
ADOPTIVE ACT. An act of legislation which comes into operation within a limited area upon being adopted, in manner prescribed therein, by the inhabitants of that area.
ADOPTIVUS. Lat. Adoptive. Applied both to the parent adopting, and the child adopted. Inst. 2, 13, 4; Inst. 3, 1, 10 -14.
ADPROMISSOR. In the civil and Scotch law, a guarantor, surety, or cautioner; a peculiar species of fidejussor; one who adds his own promise to the promise given by the-principal debtor, whence the name.
ADQUIETO. Payment. Blount.
ADRECTARE. To set right, satisfy, or make amends.
ADRHAMIRE. In old European law, to under-take, declare, or promise solemnly; to pledge; to pledge one’s self to make oath. Spelman.
ADRIFT. Sea-weed, between high and low water-mark, which has not been deposited on the shore, and which during flood-tide is moved by each ris-ing and receding wave, is adrift, although the
bottom of the mass may touch the beach. An-thony v. Gifford, 2 Alíen (Mass.) 549.
ADROGATION. In the civil law, the adoption of one who was impubes; that is, if a male, under fourteen years of age; if a female, under twelve. Dig. 1, 7, 17, 1.
ADS. An abbreviation for ad sectam (q. v.), meaning "at the suit of." Bowen v. Sewing Mach. Co., 86 111. 11.
ADSCENDENTES. Lat. In the civil law, ascend-ants. Dig. 23, 2, 68; Cod. 5, 5, 6.
ADSCRIPTI. See Adscriptus.
ADSCRIPTI GLEBJE. Slaves who served the master of the soil, who were annexed to the land, and passed with it when it was conveyed. Cal-vinus, Lex.
In Scotland, as late as the relgn of George III., laborers in collieries and salt works were bound to the coal-pit or salt work in which they were engaged, in a manner similar to that of the adscripti of the Romans. Bell. These servi adscripti (or adscriptitii) glebce held the same position as the villeins regardant of the Normans; 2 Bla.Com. 93. See 1 Poll. & Mait. 372.
ADSCRIPTITII. Lat. A species of serfs or slaves. See 1 Poll. & Mait. 372.
Those persons who were enrolled and liable to be drafted as legionary soldiers. Calvinus, Lex.
ADSCRIPTUS. In the civil law, added, annexed, or bound by or in writing; enrolled, registered; united, joined, annexed, bound to, generally. Ser-vus colonce adscriptus, a slave annexed to an es-tate as a cultivator. Dig. 19, 2, 54, 2. Fundus adscriptus, an estate bound to, or burdened with a duty. Cod. 11, 2, 3.
ADSESSORES. Sitie judges. Assistants or ad-visers of the regular magistrates, or appointed as their substitutes in certain cases. Calvinus, Lex. See Assessor.
ADSTIPULATOR. In Roman law, an accessory party to a promise, who received the same prom-ise as his principal did, and could equally receive and exact payment; or he only stipulated for a part of that ior which the principal stipulated, and then his rights were coextensive with the amount of his own stipulation. One who supplied the place of a procurator at a time when the law refused to allow stipulations to be made by pro-curation. Sandars, Just.Inst. (5th Ed.) 348.
ADULT.
Civil Law
A male infant who has attained the age of four-teen; a female ínfant who has attained the age of twelve. Dom.Liv.Prel. tit. 2, § 2, n. 8.
Common Law
One who has attained the legal age of majority, generally 21 years, though in some states women are legally "adults" at 18. Schenault v. State, 10 Tex.App. 410; Lucas v. United States Fidelity & Guaranty Co., 174 A. 712, 713, 113 N.J.Law, 491.
ADULTERY
ADULTER. Lat. One who corrupts; one who seduces another man’s wife. Adulter solictorum. A corruptor of metals; a counterfeiter. Calvinus. Lex.
ADULTERA. In the civil law, an adulteress; a woman guilty of adultery. Dig. 48, 5, 4, pr.; Dig. 48, 5, 15, 8.
ADULTERATION. The act of corrupting or de-basing; the act of mixing something impure or spurious with something pure or germine, or an inferior article with a superior one of the same kind. State v. Norton, 24 N.C. 40. The term is generally applied to the act of mixing up with food or drink intended to be sold other matters of an inferior quality, and usually of a more or less deleterious quality. Grosvenor v. Duffy, 121 Mich. 220, 80 N.W. 19, though the artificially colored poppy seeds were not deleterious and had the same food value as the naturally colored seeds. U. S. v. Two Bags, Each Containing 110 Pounds, Poppy Seeds, C.C.A.Ohio, 147 F.2d 123, 127.
ADULTERATOR. Lat. A corrupter. In the civil law. A forger; a counterfeiter. Adulteratores monetce, counterfeiters of money. Dig. 48, 19, 16, 9.
ADULTERINE. Begotten in an adulterous inter-courfse. Those are not deemed adulterine who are begotten of a woman openly married through ig-norance of a former wife being alive. In the Roman and canon law, adulterine bastards were distinguished from such as were the issue of two unmarried persons, and the former were treated with more severity, not being allowed the status of natural children, and being ineligible to holy orders.
ADULTERINE BASTARDS. The offspring of adulterous relations. Kotzke v. Kotzke’s Estate, 205 Mich. 184, 171 N.W. 442, 443. See, also, Adul-terous Bastards.
ADULTERINE GUILDS. Traders acting as a corporation without a charter, and paying a fine annually for permission to exercise their usurped privileges. Smith, Wealth Nat. b. 1, c. 10.
ADULTERIUM. A fine anciently imposed for the commission of adultery.
ADULTEROUS BASTARDS. Those produced by an unlawful connection between two persons, who at the time when the child was conceived, were, either of them or both, connected by marriage with some other person. Civil Code La. art. 182.
ADULTERY. Voluntary sexual intercourse of a married person with a person other than the of-fender’s husband or wife. Franzetti v. Franzetti, Tex.Civ.App., 120 S.W.2d 123, 127.
In some states, however, as was also true under the Ro-man and Jewish law, this crime is committed only when the woman is married to a third person; the unlawful com-merce of a married man with an unmarried woman not being of the grade of adultery. Com. v. Call, 21 Pick. Mass. 509, 32 Am.Dec. 284, and note; Com. v. Elwell, Metc. 190, 39 Am.Dec. 398. In other jurisdictions, both parties are guilty of adultery, even though only one of
them 1s married. Coodwin v. State, 70 Tex.Cr.R. 600, 158 S.W. 274, 275. .In some jurisdictions, also, a distinction is made between double and single adultery, the former being committed where both parties are married to other per-sons, the latter where one only is so married. Hunter v. U. S., 1 Pin.Wis. 91, 39 Am.Dee. 277.
Open and Notorious Adultery
To constitute living in open and notorious adul-tery, the parties must reside together publicly in the face of society, as if conjugal relations existed between them, and their so living and the fact that they are not husband and wife must be known in the community. McCullough v. State, 107 Tex.Cr.R. 258, 296 S.W. 530.
ADVANCE, v. To pay money or render other value before it is due; to furnish something be-fore an equivalent is received; to loan; to furnish capital in aid of a projected enterprise, in expecta-tion of return from it. Powell v. Allan, 70 Cal. App. 663, 234 P. 339, 344. To supply beforehand; to furnish on credit or before goods are delivered or work done; to furnish as a part of a stock or fund; to pay money before it is due; to furnish money for a specific purpose understood between the parties, the money or sum equivalent to be returned; furnishing money or goods for others in expectation of reimbursement; money or com-modities furnished on credit; a loan, or gift or money advanced to be repaid conditionally; may be equivalent to "pay." In re Altman’s Will, Sur., 6 N.Y.S.2d 972, 975.
An agreement to "advance" money for personal property implies a loan with property as pledge, rather than a pay-ment of purchase money in sale. Shelley v. Byers, 73 Cal. App. 44, 238 P. 177, 182.
ADVANCE PAYMENT. Payments made in an-ticipation of a contingent or fixed future liability. Smith v. Unity Industrial Life Ins. Co., La.App., 13 So.2d 129, 132.
ADVANCEMENT. Money or property given by a parent to his child or, sometirnes, presumptive heir, or expended by the former for the latter’s benefit, by way of anticipation of the share which the child will inherit in the parent’s estate and intended to be deducted therefrom. It is the lat-ter circumstance which differentiates an advance-ment from a gift or a loan. Brewer’s Adm’r v. Brewer, 181 Ky. 400, 205 S.W. 393, 396; In re Allen’s Estate, 207 Pa. 325, 56 A. 928.
A perfect and irrevocable gift, In re Wiese’s Estate, 222 Iowa 935, 270 N.W. 380, 382. Passing title in lifetime of donor, Burkhart v. Lowcry, 115 Ind.App. 445, 59 N.E.2d 732, 734: but which must be accounted for by donee on distribution of donor’s estate. In re Beler’s Estate, 205 Minn. 43, 284 N.W. 833, 835, 836, 837, 838. "Advancement," unlike "adernption" (q. v.), applies only to cases of in-testacy. Ellard v. Ferris, 91 Ohio St. 339, 110 N.E. 476, 479. An "advancement by portion," within the meaning of the statute, is a auto given by a parent to establish a child in life, (as by starting him in business,) or to make a provi-sien for the child, (as on the marriage of a daughter). L. R. 20 Eq. 155. See Ademption; Gift.
ADVANCES. Moneys paid before or in advance of the proper time of payment; money or com-modities furnished on credit; a loan or gift, or money advanced to be repaid conditionally. Pow-der Co. v. Burkhardt, 97 U.S. 110, 24 L.Ed. 973.
This word, when taken In its strict legal sense, does not mean gifts, (advancements,) and does mean a sort of loan; and, when taken in its ordinary and usual sense, it in-eludes both loans and gifts,—loans more readily, perhaps, than gifts. Landrum & Co. v. Wright, 11 Ala.App. 406, 66 So. 892.
Payments advanced to the owner of property by a factor or broker on the price of goods which the latter has in his hands, or is to receive, for sale.
"Loans" are repayable at maturity, while -advances" are not repaid by party receiving them, but are covered by proceeds of consigned goods. People ex rel. James Tal-cott, Inc., v. Goldfogle, 211 N.Y.S. 122, 123, 213 App.Div. 719.
ADVANTAGE. Any state, condition, circum-stance, opportunity, or means specially favorable to success, prosperity, interest, reputation, or any desired end. Duvall v. State, 92 Ind.App. 134, 166 N.E. 603, 604. Preference or priority. United States v. Preston, 4 Wash. 446, Fed.Cas.No.16,087.
ADVANTAGIUM. In old pleading, an advan-tage. Co.Ent. 484; Townsh.Pl. 50.
ADVENA. In Roman law, one of foreign birth, who has left his own country and settled else-where, and who has not acquired citizenship in his new locality; often called albanus. Du Cange.
ADVENT. A period of time recognized by the English common and ecclesiastical law, beginning on the Sunday that falls either upon St. Andrew’s day, being the 30th of November, or the next to it, and continuing to Christmas day. Wharton.
ADVENTITIOUS. That which comes incidental-ly, fortuitously, or out of the regular course. "Adventitious value" of lands, see Central R. Co. v. State Board of Assessors, 49 N.J.Law, 1, 7 A. 306.
ADVENTITIUS. Lat. Fortuitous; incidental; coming from an unusual source. Adventitia bona are goods which fall to a man otherwise than by inheritance. Adventitia dos is a dowry or portion given by some friend other than the parent.
ADVENTURA. An adventure. 2 Mon.Angl. 615; Townsh.Pl. 50. Flotson, jetson, and lagon are styled adventurce maris, (adventures of the sea.) Hale, De Jure Mar. pt. 1, c. 7.
ADVENTURE. A hazardous and striking enter-prise, a bold undertaking in which hazards are to be met and issue hangs upon unforeseen events. Bond v. O’Donnell, 205 Iowa, 902, 218 N.W. 898, 902, 63 A.L.R. 901.
Generally
Adventure, bill of. In mercantile law, a writing signed by a merchant, stating that the property in goods shipped in his name belongs to another, to the adventure or chance of which the person so named is to stand, with a covenant from the merchant to account to him for the produce.
Gross adventure. In maritime law, a loan on bottomry. So named because the Tender, in case
of a loss, or expense incurred for the common safety, must contribute to the gross or general average.
Joint adventure. A commercial or maritime en-terprise undertaken by ‘several persons jointly; a limited partnership,—not limited in the statu-tory sense as to the liability of the partners, but as to its scope and duration. Lobsitz v. E. Liss-berger Co., 168 App.Div. 840, 154 N.Y.S. 556, 557. A special partnership. McDaniel v. State Fair of Texas, Tex.Civ.App., 286 S.W. 513, 517. An as-sociation of two or more persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, ef-fects, skill, and knowledge. Forman v. Lumm, 214 App.Div. 579, 212 N.Y.S. 487. A special com-bination of two or more persons, where, in some specific adventure, a profit is jointly sought, with-out any actual partnership or corporate designa-tion. Griffin v. Reilly, Tex.Civ.App., 275 S.W. 242, 246.
It is ordlnarily, but not necessarily, limited to a single transaction, Forbes v. Butler, 66 Utah, 373, 242 P. 950, 956, which serves to distinguish It from a partnership, Barry v. Kern, 184 Wis. 266, 199 N.W. 77, 78. But the business of conducting it to a successful termination may continue for
a number of years. Elliott y. Murphy Timber Co., 117 Or. 387, 244 P. 91, 93, 48 A.L.R. 1043. There is no real dis-tinction between a "joint adventure" and what Is termed a "partnership for a single transaction." Atlas Realty Co. v. Galt, 153 Md. 586, 139 A. 285, 286. A "joint adventure,"
while not identical with a partnership, is so similar in its nature and in the relations created thereby that the rights of the parties as between themselves are governed practi-cally by the same rules that govern partnershlps. Goss v. Lanln, 170 Iowa 57, 152 N.W. 43, 45.
Marine Insurance
A very usual word in policies of marine insur-ance, and everywhere used as synonymous, or nearly so, with "perils." It is of ten used by the writers to describe the enterprise or voyage as a "marine adventure" insured against. Moores v. Louisville Underwriters, C.C.Tenn., 14 Fed. 233.
Mercantile Law
Sending goods abroad under charge of a super-cargo or other agent, at the risk of the sender, to be disposed of to the best advantage for the benefit of the owners.
The goods themselves so sent.
ADVENTURER. One who undertakes uncertain or hazardous actions or enterprises. It is also used to denote one who seeks to advance his own interests by unscrupulous designs on the credulity of others. It has been held that to im-pute that a person is an adventurer is a libel; 18 L.J.C.P. 241.
ADVERSARIA. (From Lat. adversa, things re-marked or ready at hand.) Rough memoranda, common-place books.
ADVERSARY. A litigant-opponent, the opposite party in a writ or action.
ADVERSARY PROCEEDING. One having oppos-ing parties; contested, as distinguished from an
ex parte application; one of which the party seeking relief has given legal warning to the oth-er party, and afforded the latter an opportunity to contest it. Excludes an adoption proceeding. Platt v. Magagnini, 187 P. 716, 718, 110 Wash. 39.
ADVERSE. Opposed; contrary; in resistance or opposition to a claim, application, or proceeding. Having opposing interests; having interests for the preservation of which opposition is essential. In re National Lock Co., D.C.I11., 9 F.Sppp. 432, 433.
As to adverse "Claim," "Enjoyment," "User," "Verdict," "Witness," see those titles.
ADVERSE INTEREST. The "adverse interest" of a witness, so as to permit cross-examination by the party calling him, must be so involved in the event of the suit that a legal right or liability will be acquired, lost, or materially affected by the judgment, and must be such as would be pro-moted by the success of the adversary of the par-ty calling him. Dinger v. Friedman, 279 Pa. 8, 123 A. 641, 643. On petition in bankruptcy court for removal of trustee’s attorney, attorney has an interest adverse to trustee. In re Mallow Hotel Corporation, D.C.Pa., 18 F.Supp. 15, 17.
ADVERSE PARTY. An "adverse party" entitled to notice of appeal is every party whose interest in relation to the judgment or decree appealed from is in conflict with the modification or rever-sal sought by the appeal.
Every party interested In sustaining the judgment or decree. Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909. All parties appearing against losing party unless reversal of case will not be to party’s detriment. Shea v. Shea, Iowa, 264 N.W. 590. Any party who would be prejudi-cially affected by a modification or reversal of the judg-ment appealed from. Great Falls Nat. Bank v. Young, 67 Mont. 328, 215 P. 651, 652. One who has interest in oppos-ing object sought to be accomplished by appeal. In re Baxter’s Estate, 94 Mont. 257, 22 P.2d 182. Party to rec-ord, whose interest in subject-matter of appeal is adverse te, reversal or modification of judgment or order appealed from. MacDonald v. Superior Court in and for City and County of San Francisco, 101 Cal.App. 423, 281 P. 672, 673. A party who, by the pleadings, is arrayed on the opposite side. Merrill v. St. Paul City Ry. Co., 170 Minn. 332, 212 N.W. 533. The other party to the action. Highland v. Hines, 80 N.H. 179, 116 A. 347, 349. A party to the record for, or against, whom judgment Is sought. Merchants’ Supply Co. v. Hughes’ Ex’rs, 139 Va. 212, 123 S.E. 355, 356. "Opposite" party synonymous. In re Wah-shah-she-me-tsa-he’s Estate, 111 Okl. 177, 239 P. 177, 178. And term is not necessarily confined to plaintiffs as against defendants, or vice versa. Arwood v. Hill’s Adm’rs, 135 Va. 235, 117 S.E. 603, 605. But a defaulting defendant is not an "adverse party"; Holt v. Empey, 32 Idaho, 106, 178 P. 703; nor Is one who is named as a party but Is not served; Kissler v. Moss, 26 Idaho, 516, 144 P. 647. Compare Fer-gen v. Lonie, 50 S.D. 328, 210 N.W. 102, 103 (garnishment debtor not served in garnishment proceeding).
ADVERSE POSSESSION. A method of acquisi-tion of title by possession for a statutory period under certain conditions. Lowery v. Garfield County, Mont., 208 P.2d 478, 486. It has been de-scribed as the statutory method of acquiring title to land by limitation. Field v. Sosby, Tex.Civ. App., 226 S.W.2d 484, 486.
The possession must be actual, Ortiz v. Pacific States Properties, Cal.App., 215 P.2d 514, 516;
adverse, Flanery v. Greene, 158 S.W.2d 413, 415, 289 Ky. 244; under claim of right, Thomas v. Durchslag, III., 90 N.E.2d 200, 204, 404 Ill. 581; continuous, Davis v. Federal Land Bank of Col-umbia, 13 S.E.2d 417, 419, 219 N.Car. 248; open Wilberforce University v. College of Ed. and Indus. Arts at Wilberforce University, 90 N.E.2d 172, 173, 86 Ohio App. 121; notorious, Edie v. Coleman, 141 S.W.2d 238, 242, 243, 235 Mo.App. 1289; exclusive, Laudati v. State, 30 N.Y.S.2d 267, 270, and hostile, Singley v. Dempsey, 42 So.2d 609, 612, 252 Ala. 677. Although color of title is not essential, Roesch v. Gerst, 138 P.2d 846, 851, 852, 18 Wash.2d 294, it is of great evidentiary value in establishing adverse possession, Lincoln v. Milis, 2 So.2d 809, 811, 191 Miss. 512.
Adverse possession depends on intent of occu-pant to claim and hold real property in opposition to all the world, Sertic v. Roberts, 136 P.2d 248, 171 Ore. 121; and also embodies the idea that own-er of or persons interested in property have knowl-edge of the assertion of ownership by the occu-pant, Field v. Sosby, Tex.Civ.App., 226 S.W.2d 484, 486.
Payment of taxes alone is not sufflcient in it-self to establish adverse possession, Blitch v. Sapp, 194 So. 328, 330, 142 Fla. 166. It is manda-tory that the element of continuous possession exist for the full statutory period, Wells v. Tietge, 9 N.W.2d 180, 182, 143 Neb. 230.
ADVERSUS. In the civil law, against, (contra.) Adversus bonos mores, against good morals. Dig. 47, 10, 15.
Adversus extraneos vitiosa possessio prodesse solet. Prior possession is a good title of owner-ship against all who cannot show a better. D. 41. 2. 53; Salmond, Jurispr. 638.
ADVERTISE. To give notice to, inform or notify, give public notice of, announce publicly, notice or observe. People v. Hopkins, 263 N.Y.S. 290, 147 Misc. 12. To advise, announce, apprise, com-mand, give notice of, inform, make known, pub-lish. People v. Montague, 274 N.W. 347, 351, 280 Mich. 610. On call to the public attention by any means whatsoever; Commonwealth v. Allison, 227 Mass. 57, 116 N.E. 265, 266.
It includes publication by hand bilis, signs, bill boards, sound trucks and radio, Rust v. Missouri Dental Board, 348 Mo. 616, 155 S.W.2d 80, 83; or in a newspaper, or by means of placards, or other written public notices; Nichols v. Nichols, 192 Ala. 206, 68 So. 186, 187. It is merely iden-tification and description, apprising of quality and place, Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S.Ct. 370, 377, 60 L.Ed. 679. And "advertising purposes" are not limited to matters of vocation, or even avocation, but include advertisernents essentially for unselfish purposes, Almind v. Sea Beach Ry. Co., 141 N.Y.S. 842, 843, 157 App.Div. 230.
ADVERTISEMENT. Notice given in a manner designed to attract public attention. Edwards v. Lubbock County, Tex., 33 S.W.2d 482, 484. Infor-mation communicated to the public, or to an in-dividual concerned, as by handbills or the news-paper, First Nat. Corporation v. Perrine, 99 Mont. 454, 43 P.2d 1073, 1077.
A sign-board, erected at a person’s place of business, giving notice that lottery tickets are for sale, Com. v. Hooper, 5 Pick.Mass. 42.
ADVERTISEMENTS OF QUEEN ELIZABETIL Certain articles or ordinances drawn up by Arch-bishop Parker and some of the bishops in 1564, at the request of Queen Elizabeth, the object of which was to enforce decency and uniformity in the ritual of the church. The queen subsequently refused to give her offlcial sanction to these ad-vertisements, and left them to be enforced by the bishops under their general powers. Phillim.Ecc. Law, 910; 2 Prob.Div. 276; 354.
ADVICE. View; opinion; the counsel given by lawyers to their clients; an opinion expressed as to wisdom of future conduct. Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494, 496.
The word has several different meanings, among others, as follows: Information or notice given; intelligence;— usually information communicated by letter;—Chiefly as to drafts or bilis of exchange; as, a letter of advice.— Advice Implies real or pretended knowledge, often pro-fessional or technical, on the part of the one who gives it. Provident Trust Co. v. National Surety Co., D.C.Pa., 44 F.Supp. 514, 515.
The instruction usually given by one merchant or banker to another by letter, informing him of shipments made to him, or of bilis or drafts drawn on him, with particulars of date, or sight, the sum, and the payee. Bilis presented for ac-ceptance or payn-tent are frequently dishonored for want of advice.
Letter of advice is a communication from one person to another, advising or warning the latter of something which he ought to know, and commonly apprising him before-hand of some act done by the writer which will ultimately affect the recipient. Chit. Bills, 162.
ADVISARE, ADVISARI. Lat. To consult, delib-erate, consider, advise; to be advised. Occurring in the phrase curia advisari ‘vult, which see (usu-ally abbreviated cur. adv. volt, or C. A. TT.,) the
court wishes to be advised, or to consider of the matter.
ADVISE. To give an opinion or counsel, or rec-ommend a plan or course of action; also to give notice. Long v. State, 23 Neb. 33, 36 N.W. 310. To encourage. Voris v. People, 75 Colo. 574, 227 P. 551, 553. "Inform" or "acquaint." Ericson v. Steiner, 119 Cal.App. 305, 6 P.2d 298, 300.
It is different in meaning from "instruct" or "persuade." Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494, 497. Where a statute authorizes the trial court to advise the jury to acquit, the court has no power to instruct the jury to acquit. The court can only counsel, and the jury are not bound by the advice. People v. Horn, 70 Cal. 17, 11 P. 470. "Advise" imports that it is discretionary or optional with the person addressed whether he will act on such advice or not. State v. Downing, 23 Idaho, 540, 130 P. 461, 462.
ADVISED. Prepared to give judgment, alter ex-amination and deliberation. "The court took time to be advised." 1 Leon. 187.
ADVISEDLY. With deliberation; intentionally. 15 Moore P.C. 147.
ADVISEMENT. Consideration; deliberation; consultation. Drainage Dist. No. 1 of Lincoln
County v. Suburban Irr. ‘Dist., 139 Neb. 460, 298 N.W. 131, 134. The consultation of a court, after the argument of a cause by counsel, and before delivering their opinion. In re Hohorst, 150 U.S. 662, 14 S.Ct. 221, 37 L.Ed. 1211.
ADVISORY. Counselling, suggesting, or advis-ing, but not imperative or conclusive. A verdict on an issue out of charicery is advisory. Watt v. Starke, 101 U.S. 252, 25 L.Ed. 826. Not binding on chancellor. Merritt v. Palmer, 289 Ky. 141, 158 S.W.2d 163, 165.
ADVISORY OPINION. A formal opinion by judge or judges or a court or a law officer upon a question of law submitted by a legislative body or a governmental ,official, but not actually pre-s’ented in a concrete case at law. Douglas Oil Co. v. State, Tex.Civ.App., 81 S.W.2d 1064, 1077.
Merely opinion of judges or court, which adjudicates nothing and is binding en no one, in exercise of wholly non or extra-judicial function. The expression ordinarily connotes the practice which existed in England from very early times of extra-judicial consultation of the judges by the Crown and the House of Lords. Douglas Oil Co. v. State, Tex.Civ.App,, 81 S.W.2d 1064, 1077.
ADVOCACY. The act of pleading for, supporting, or recommending active espousal. Gitlow v. Peo-ple of State of New York, 45 S.Ct. 625, 626, 268 U.S. 652, 69 L.Ed. 1138.
ADVOCARE. Lat. To defend; to call to one’s aid; to vouch; to warrant.
ADVOCASSIE. L. Fr. The office of an advocate; advocacy. Kelham.
ADVOCATA. In old English law, a patroness; a woman who had the right of presenting to a church. Spelman.
ADVOCATE, v. To speak in favor of ; defend by argument. Ex parte Bernat, D.C.Wash., 255 F. 429, 432. To support, vindicate, or recommend publicly. Butash v. State, 212 Ind. 492, 9 N.E.2d 88, 90. Not for an educational purpose, but to disseminat e controversial "propaganda," which means plan for publication of doctrine or system of principies. Leubuscher v. Commissioner of In-ternal Revenue, C.C.A., 54 F.2d 998, 999.
ADVOCATE, n. One who assists, defends, or pleads for another; one who renders legal advice and aid and pleads the cause of another before a court or a tribunal, a counselor. Haverty Furni-ture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694, 697.
A person learned in the law, and duly admitted to practice, who assists his client with advice, and pleads, for him in open court. Holthcuse.
An assistant; adviser; a pleader of causes.
Derived fron-i advocare, to summon to one’s assistance; advocatus originally signified an assistant or helper of any kind, even an accomplice in the commission of a crime; Cicero, Pro Ccecina, c. 8; Livy, lib. iI. 55; iii. 47; Tertul-han, De ldolatr. cap. xxiii.; Petron.• Satyric. cap. xv. Secondarily, it was applied to one called in te assist, a party in the conduct of a suit; Inst. 1, 11, D, 50, 13. de extr. cogn. Hence, a pleader, which is its present signifi-
Civil and Ecclesiastical Late
An officer of the court, learned in the law, who is engaged by a suitor to maintain or defend his cause.
in Scotland, and one of the great officers of state of Scotland. It is his duty to act as public prose-cutor; but private individuals injured ma.S7 prose-cute upon obtaining his concurrence. He is as-sisted by a solicitor general and four junior coun-sel, termed "advocates-depute." He has the pow-er of appearing as public prosecutor in any court in Scotland, where any person can be tried for an offense, or in any action where the crown is in-terested. Wharton.
—Queen’s advocate. A member of the College of Advocates, apkointed by letters patent, whose of-fice is to advise and act as counsel for the crown in questions of civil, canon, and international law. His rank is next after the solicitor general.
ADVOCATI. Lat. In Roman law, patrons; plead-ers; speakers.
ADVOCATI ECCLESIIE. Advocates of the church.
A term used In the ecclesiastical law to denote the patrons of churches who presented to the living on an avoidance. This term was also applied to those who were retained to argue the cases of the church. These were of tuvo sorts: those retained as pleaders to argue the cases of the church and attend to its law-matters; and advo-cates, or patrons of the advowson. Cowell; Spelman, Gloss.
ADVOCATI FISCI. In civil law, those chosen by the emperor to argue his cause whenever a question arose affecting his revenues. 3 Bla. Comm. 27. Advocates of the fisc, or revenue; fis-cal advocates, (qui causam fisci egissent.) Cod. 2, 9, 1; Cod. 2, 7, 13. Answering, in some measure, to the king’s counsel in English law.
ADVOCATIA. In the civil law, the quality, func-tion, privilege, or territorial jurisdiction of an ad-vocate.
The functions, duty, or privilege of an advo-cate. Du Cange, Advocatia.
ADVOCATION. In Scotch law, a process by which an action may be carried from an inferior to a superior court before final judgment in the former.
ADVOCATIONE DECIMARUM. A writ which lay for tithes, demanding the fourth part or up-wards, that belonged to any church.
ADVOCATOR. In old practice, one who called on or vouched another to warrant a title; a voucher. Advocatus; the person called on, or vouched; a vouchee. Spelman; Townsh.Pl. 45.
In Scotch practice, an appellant. 1 Broun, R.
ADVOCATUS. A pleader; a narrator. Bracton, 412 a, 372 b.
In the civil law, an advocate; one who managed or assisted in managing another’s cause before a judicial tribunal. Called also "patronus." Cod. 2, 7, 14. But distinguished from causidicus. Id. 2, 6, 6.
ADVOCATUS DIABOLI. In ecclesiastical law, the devil’s advocate; the advocate who argues against the canonization of a saint.
Advocatus est, ad quem pertinet jus advocationis alicujus ecclesise, ut ad ecclesiam, nomine pro-prio, non alieno, possit presentare. A patron is he to whom appertains the right of presentation to a church, in such a manner that he may pre-sent to such a church in his own name, and not in the name of another. Co.Litt. 119.
ADVOUTRER. In old English law, an adulterer. Beaty v. Richardson, 56 S.C. 173, 34 S.E. 73, 46 L.R.A. 517.
ADVOUTRY. In old English law, adultery be-tween parties both of whom were married. Hun-ter v. U. S., 1 PM. (Wis.) 91, 39 Am.Dec. 277. Or the offense by an adulteress of continuing to live with the man with whom she committed the adultery. Cowell; Termes de la Ley. Sometimes spelled "advowtry." See Advoutrer.
ADVOWEE, or AVOWEE. The person or patron who has a right to present to a benefice. Fleta, lib. 5, c. 14.
ADVOWEE PARAMOUNT. The sovereign, or highest patron.
ADVOWSON. In English ecclesiastical law, the right of presentation to a church or ecclesiastical benefice; the right of presenting a fit person to the bishop, to be by him admitted and instituted to a certain benefice within the diocese, which has become vacant. 2 Bl.Comm. 21; Co.Litt. 119b, 120a. The person enjoying this right is called the "patron" (patronus) of the church, and was formerly termed "advocatus," the advocate or defender, or in English, "advowee." Id.; 1 Crabb, Real Prop. p. 129, § 117.
When there is no patron, or he neglects to exercise his right within six months, It Is called a lapse, ami a titie is given to the ordinary to collate to a church: when a pres-entation is made by one who has no right, it Is called a usurpation.
Advowsons are of different kinds.
Advowson appendant is an advowson annexed to a manor, and passing with it, as incident or appendant to it, by a grant of the manor only, without adding any other words. 2 BI.Comm. 22; Co.Litt. 120, 121; 1 Crabb, Real Prop. p. 130, § 118.
Advowson collative. Where the bishop happens himself to be the patron, in which case (presentation being Impos-sible, or unnecessary) he does by one act, which is termed "conation," or conferring the benefice, all that is usually done by the separate acts of presentation and institution. 2 BI.Comm. 22, 23; 1 Crabb, Real Prop. p. 131, § 119.
Advowson donativo exists where the patron has the right to put his clerk in possession by his mere gift, or deed of donation, without any presentation to the bishop, or insti-tution by him. 2 Bl.Comm. 23; 1 Crabb, Real Prop. p. 131, § 119.
Advowson in gross 1s an advowson separated from the manor, and annexed to the person. 2 BI.Comm. 22; Co. Litt. 120; 1 Crabb, Real Prop. p. 1.30, § 118; 3 Steph. Comm. 116.
Advowson presentative is the usual kind of advowson, where the patron has the right of presentation to the bishop, or ordinary, and moreover to demand of him to institute his clerk, if he fin ds him canonically qualified. 2 Bl.Comm. 22; 1 Crabb, Real Prop. p. 131, § 119.
ADVOWTRY. See Advout:ry.
"ES. Lat. In the civil law, a house, dwelling, temple, place of habitation., whether in the city or country. Dig. 30, 41, 5. In the country every-thing upon the surf ace of the soil passed under the term "cedes." Du Cange; Calvin.
/EDIFICARE. Lat. In civil and old English law, to make or build a house; to erect a building. Dig. 45, 1, 75, 7.
;Edificare in tuo proprio solo non licet quod alteri noceat. 3 Inst. 201. To build upon your own land what may injure another is not lawful.
A proprietor of land has no right to erect an edifIce on his own ground, interfering with the due enjoyment of adjoining premises, as by overhanging them, or by throw-ing water from the roof and eaves upon them, or by obstructing ancient lights and windows. Broom, Max. 369.
ZEdificatum solo solo cedit. What is built upon land belongs to or goes with land. Broom, Max. 172; Co.Litt. 4a.
/Edilicia solo cedunt. Buildings belong to [go with] the soil. Fleta, lib. 3, c. 2, § 12.
7EDILE. In Roman law, an officer who attended to the repairs of the temples and other public buildings; the repairs and cleanliness of the streets; the tare of the weights and measures; the providing for funerals and games; and to reg-ulating the prices of provisions. Ainsvvorth, Lex.; Smith, Lex.; Du Cange.
1EDILITUM EDICTUM. In the Roman law, the 2Edilitian Edict.
An edict providing remedies for frauds irv sales, the execution of which belonged to the curule mdiles. Dig. 21, 1. See Cod. 4, 58. That provision by which the buyer of a diseased or imperfect slave, horse, or other animal was relieved at the expense of the vendor who had sold him as sound knowing him to be imperfect. Calvinus, Lex.
MFESN. In old English law, the remuneration to the proprietor of a domain f dr the privilege of feeding swine under the oaks and beeches of his woods.
ZEGROTO. Lat. Being sick or indisposed. A term used in some of the older reports. "Holt cegroto." 11 Mod. 179.
7EGYLDE. Uncompensated, unpaid for, un-avenged. From the participle of exclusion, a, ce, or ex, (Goth.,) and gild, payment, requital. .Anc. Inst.Eng.
ML. A Norman French term signifying "gra nd-father." It is also spelled "aieur and "ayle." Kelham.JEQUIOR EST DISPOSITIO LEGIS QUAM HOM-INIS. The disposition- of the law is more equita-ble than that of man. 8 Coke, 152.
IEQUITAS. In the civil law, equity, as opposed to strictum or summum jus, (q. v.). Otherwise called cequum, cequum bonum, cequum et bonum, cequum et justum. Calvin.
Referring to the use of this term, Prof. Gray says (Nature and Sources of the Law 290) : "Austin and Maine take cequitas as having an analogous meaning to equity; they apply the’ term to those rules which the praetors intro-duced through the Edict in modification of the jus civile, but it seems to be an error to suppose that xquitas had this sense in the Roman Law." He quotes Prof. Clerk (Jurisprudence 367) as doubting "whether sequitas is ever clearly used by the Roman jurists to indicate simply a department of Law" and expresses the opinion that an examination of the authorities more than justifies his doubt. .Zquitas is opposed to’ strictum jus and verles in meaning between reasonable modification of the letter and substantial justice. It is to be taken as a frame of mind in dealing with legal questions and not as a source of law.
See JEquum et Bonum.
1Equitas agit in personam. Equity acts upon the person. 4 Bouv.Inst. n. 3733.
lEquitas est correctio legis generaliter latan, qua parte deficit. Equity is the correction of that wherein the law, by reason of its generality, is deficient. Plowd. 375.
1Equitas est correctio quEedam legi adhibita,
ab eá abest aliquid propter generalem sine ex• ceptione comprehensionem. Equity is a certain correction applied to law, because on account of its general comprehensiveness, without an excep-tion, something is absent from it. Plowd. 467.
lEquitas est perfecta quoedam ratio qux jus strip• tum interpretatur et emendat; nulla scriptura comprehensa, sed solum in verá ratione consistens. Equity is a certain perfect rer son, which inter-prets and amends the written law, comprehended in no writing, but consisting in right reason alone. Co.Litt. 24b.
lEquitas est quasi Eequalitas. Equity is as it were equality; equity is a species of equality or equali-zation. .Co.Litt. 24.
lEquitas ignorantize opitulatur, oscitantial non item. Equity assists ignorance, but not careless-ness.
lEquitas non facit jus, sed juri auxiliatur. Eq-uity does not make law, but assists law. Lofft, 379.
lEquitas nunquam contravenit legis. Equity nev-er counteracts the laws.
lEquitas sequitur legem. Equity follows the law. 5 Barb.N.Y. 277, 282.
lEquitas supervacua odit. Equity abhors super-fluous things. Lofft, 282.
ilEquitas uxoribus, liberis, creditoribus maxime favet. Equity favors wives and children, credi-tors most of all.
AEQUUWI ET BONUM. "The Roman conception involved in `cequum et bonum’ or `sequitas’ is iden-tical with what we mean by ‘reasonable’ or nearly so."
"On the whole, the natural justice or ‘reason of the thing’ which the common law recognizes and applies does not appear to differ from the ‘law of nature’ which the Romans identified with jus gentium, and the medieval doetors of the civil and common law boldly adopted as being divine law revealed through man’s natural reason." Sir F. Pollock, Expans. of C. L. 111, citing [1902] 2 Ch. 661, where jus naturale and cequum et bonum were taker, to have the same meaning.
irEquum et bonum est lex legum. What is eq-uitable and good is the law of laws. Hob. 224.
MQUUS. Lat. Equal; even. A provision in a will for the division of the residuary estate ex cequus among the legatees means equally or even-ly. Archer v. Morris, 47 Atl. 275, 61 N.J.Eq. 152.
or ERA. A fixed point of chronological time, whence any number of years is counted; thus, the Christian era began at the birth of Christ, and the Mohammedan era at the flight of Mohammed from Mecca to Medina. The deri-vation of the word has been much contested. Wharton.
;ERARIUM. Lat. In the Roman law. The treas-ury, (fiscus.) Calvin.
AÉRIAL NAVIGATION. See Aeronautics.
AERODROME. A term originally applied by Professor Langley to his flying machine but now used in the same sense as "airport" (q. y.).
AERONAUT. This term under some statutes includes every person who, being in or upon an airship or anything attached thereto, undertakes to direct its ascent, course, or descent in the air, or the ascent, course, or descent in the air of anything attached to such airship.
Under the Uniform Aeronautics Act it includes aviator, pilot, baloonist, and every other person having any part in the operation of aircraft while in flight. See Aeronautics.
AERONAUTIC ACTIVITY. The term is broad enough to cover what is ordinarily incident to an airplane trip.. The aeronautic activities of one who takes such a trip do not begin or end with the actual flight, but include his presence or movements in or near to the machine incidental to beginning or concluding the trip. Blonski v. Bankers’ Life Co., 209 Wis. 5, 243 N.W. 410.
Insured killed when struck by propeller after emerging from airplane at end of flight, Day v. Equitable Life Assur. Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 148. To a contrary effect: Tierney v. Occidental Life Ins. Co., 89 Cal.App. 779, 265 P. 400.
AERONAUTIC EXPEDITION. Traveling as pas-senger in airplane operated in regular passenger service was engaging in "aeronautic expedition" under life policy. Gibbs v. Equitable Life Assur. Soc. of U. S., 256 N.Y. 208, 176 N.E. 144. Contra. King v. Equitable Life Assur. Soc. of United States, 232 Iowa 541, 5 N.W.2d 845, 846, 155 A.L.R.
1022. Pleasure trip in airplane over airport on pleasant day was not "aeronautic expedition" under life policy. Day v. Equitable Life Assur. Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 149.
AERONAUTIC OPERATION. Passenger on reg-ularly scheduled airplane trip engaged in "aero-nautic operation," within life policy. Day v. Eq-uitable Life Assur. Soc. of Ú. S., C.C.A.Colo., 83 F.2d 147, 148. Did not include casual trip in air-plane; "aeronautic operations" signifying more than occasional venture. Gits v. New York Life Ins. Co., C.C.A.I11., 32 F.2d 7, 10. Nor a pleasure fiight in airplane. Day v. Equitable Life Assur. Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 148.
AERONAUTICS. The science, art or practice of sailing in the air; aerial navigation; the branch of aerostatics which treats of floating in or navi-gating the air as in an airship or airplane. Mas-sachusetts Protective Ass’n v. Bayersdorfer, C.C.A. Ohio, 105 F.2d 595, 597. Operation of aircraf t. Equitable Life Assur. Soc. of United States v. Dyess, 194 Ark. 1023, 109 S.W.2d 1263, 1265.
It is divided into two branches: aerostation, dealing with machines which, like ballcons, are lighter than air; and aviation, dealing with artificial fiight by machines which are heavier than air. Bew v. Travelers’ Ins. Co., 95 N.J.Law, 533, 112 A. 859, 860, 14 A.L.R. 983.
A passenger in an airplane, whether he takes part in lts operation or not, "participates in aeronautics" within the meaning of an insurance policy. Meredíth v. Business Men’s Acc. Ass’n of America, 213 Mo.App. 688, 252 S.W. 976, 977. Contra as to a transport airplane passenger who could not pilot an airplane, had no knowledge of flying, and at time of accident was traveling on prívate business. Gregory v. Mutual Life Ins. Co. of New York, C.C.A.Ark., 78 F.2d 522, 524. As to an insured, who was a fare-paying passenger on a commerclal transport plane over an estab-lished route while plane was wholly under the control of others. Bayersdorfer v. Massachusetts Protectíve Ass’n, D.C.Ohlo, 20 F.Supp. 489, 492. A father riding with son as guest in airplane purchased by father for son. Day v. Equitable Life Assur. Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 149. And where insured after alighting from a fiight, in bending over to avoid a wire, was struck by the propel-ler of the aeroplane. Tierney v. Occidental Life Ins. Co. of California, 89 Cal.App. 779, 265 P. 400, 401.
See, also, Aircraft; Airship; Airport; Airway; Aviation.
AEROPLANE. See Aircraft; Hydro-Aeroplane; Sea plane.
AEROSTATICS. "Aerostatics" is divided into two main branches; aerostation dealing, properly, with machines, which, like balloons, are lighter than air, and aviation dealing with the problem of artificial fiight by means of flying machines, which, like birds, are heavier than air. Swasey v. Massachusetts Protective Ass’n, C.C.A.Ariz., 96 F.2d 265, 266.
AEROSTATION. See Aerostatics, and Aeronau-tics, note.
LES. Lat. In the Roman law, money, (literally, brass;) metallic money in general, including gold. Dig. 9, 2, 2, pr.; Dig. 9, 2, 27, 5; Dig. 50, 16, 159.
LES ALIENUM. A civil law term signifying a debt. Literally translated, the money of anoth-er; the civil law considered borrowed money as
the property of another, as distinguished from ces suum, one’s own money.
IES SUUM. One’s own money. In the Roman law, debt; a debt; that which others owe to us, (quod alii nobis debent.) Dig. 50, 16, 213.
JESNECIA. In old English law, Esnecy; the right or privilege of the eldest born. Spelman; Glanv. lib. 7, c. 3; Fleta, lib. 2, c. 66, §§ 5, 6.
1ESNECIUS. See Anecius; Aesnecia.
/ESTHETIC. Relating to that which is beautiful or in good taste. People v. Wolf, 216 N.Y.S. 741, 744, 127 Misc. 382. Pertaining to the beautiful. Hav-A-Tampa Cigar Co. v. Johnson, 149 Fla. 148, 5 So.2d 433, 440.
AESTIMATIO CAPITIS. Lat. The value of a head.
In Saxon law, the estimation or valuation of the head ; the price or value of a man. The price to be paid for tak-ing the life of a human being. By the laws of Athelstan, the life of every man not excepting that of the king him-self, was estimated at a certain price, which was called the were, or wstimatio capitis. Crabb, Eng.Law, c. 4.
JETAS. Lat. In the civil law. Age.
.7ESTIMATIO PRPETERITI DELICTI EX POST-REMO FACTO NUNQUAM CRESCIT. The weight of a past offense is never increased by a subse-quent fact. Bacon.
JETAS INFANTLE (also written infantili) PROXIMA. The age next to infancy; the first half of the period of childhood (pueritia,) extend-ing from seven years to ten and a half. Inst. 3, 20, 9; 4 Bl.Comm. 22. See Age.
JETAS LEGITIMA. Lawful age; the age of twenty-five. Dig. 3, 5, 27, pr.; Id. 26, 2, 32, 2; Id. 27, 7, 1, pr.
ZETAS PERFECTA. Complete age; full age; the age of twenty-flve. Dig. 4, 4, 32; Id. 22, 3, 25, 1.
ZETAS PRIMA. The first age; infancy, (infan-tia). Cod. 6, 61, 8, 3.
JETAS PUBERTATI PROXIMA. The age next to puberty; the last half of the period of child-.hood (pueritia), extending from ten and a half years to fourteen, in which there might or might not be criminal responsibility according to natural capacity or incapacity. Inst. 3, 20, 9; 4 Bl.Comm. 22. See Age.
IETATE PROBANDA. A writ which inquired whether the king’s tenant holding in chief by chivalry was of full age to receive his lands. It was directed to the escheater of the county. Now disused.
JETHELING. In Saxon law, a noble; generally a prince of the blood.
AFFAIR. (Fr.). A law suit.
The term frequently refers to an amour; in-trigue; liaison.
AFFAIRS. An inclusive term, bringing within its scope and meaning anything that a person may do. Walker v. United States, C.C.A.Mo., 93 F.2d 383, 391.
A person’s concerns in trade or property; business. Bragaw v. Bolles, 51 N.J.Eq. 84, 25 A. 947. That which is done or to be done. Wicks v. City and County of Denver, 61 Colo. 266, 156 P. 1100, 1103. A corporation’s borrowing money, and methods of obtaining loans. Cameron v. First Nat. Bank, Tex.Civ.App., 194 S.W. 469, 470. Person and estate of alleged incompetent. State ex rel. Bevan y Wil-liams, 316 Mo. 665, 291 S.W. 481, 482. General operations carried on by an employer. Gocs v. Thomas E. Coale Coal Co., 142 Pa.Super. 479, 16 A.2d 720, 723.
AFFECT. To act upon; influence; change; en-large or abridge; often used in the sense of acting injuriously upon persons and things. Ryan v. Carter, 93 U.S. 84, 23 L.Ed. 807; Tyler v. Wells, 2 Mo.App. 538; Holland v. Dickerson, 41 Iowa 373; Meurer v. Hooper, Tex.Civ.App., 271 S.W. 172, 177. Does not mean to impair. Harris v. Friend, 24 N.M. 627, 175 P. 722, 725. To lay hold of or at-tack (as a disease does) ; to act, or produce an effect upon; to impress or influence (the mind or feelings) ; to touch. State v. Hurd, 5 Wash.2d 308, 105 P.2d 59, 61, 62. Acted upon, influenced, concerned. In re National Lock Co., D.C.Ill., 9 F. Supp. 432, 433. Implies an indirect relation. Chapman v. }lame Ice Co., D.C.Tenn., 43 F.Supp. 424, 428.
AFFECTED WITH A PUBLIC INTEREST. Af-firmatively, phrase means that a business or prop-erty must be sulh or be so employed as to justify the conclusion that it has been devoted to a pub-lic use, and its use thereby in effect granted to the public. Negatively, it does not mean that a business is affected with a public interest merely because it is large or because the public are war-ranted in having a feeling of concern in respect of its maintenance. H. Earl Clack Co. v. Public Service Commission of State of Montana, 94 Mont. 488, 22 P.2d 1056.
A business glven a virtual monopoly In its field or where the public adapt their business or conduct to the methods used by it. Western Buse Telephone Co. v. Northwestern Bell Telephone Co., 188 Minn. 524, 248 N.W. 220, 229. The business must affect the prosperity of a large part of [he members of the body politic. Ex parte Kazas, 22 Cal.App. 2d 161. 70 P.2d 962, 967. Thls phrase means something more than "quasi public," or "not strictly private," and similar phrases employed as a basis for upholding police regulations. A business is not affected with a public inter-est merely because the public derives benefit, accommoda-tion, ease or enjoyment from its existence or operation, such as admissions to places of amusement or entertain-ment. Tyson & Bro.-United Theatre Ticket °feces v. Ban-ton, 273 U.S. 418, 47 S.Ct. 426, 429, 71 L.Ed. 718, 58 A.L.R. 1236.
Businesses. Three classes of such businesses : (1) Thoso carried on under the authority of a public grant or privi-lege expressly or impliedly imposing an affirrnative duty of rendering public service demanded by the public, such as eommon carrlers and public utilities; (2) occupations regarded as exceptional, the public interest attaching to which has been recognized from earliest times and has sur-
■ ived the period of arbitrary laws by Parliament or colo-nial legislatures for regulating trades and callings, such as inns, cabs, and grist milis; (3) businesses which, though not public at their inception, have become such by devot-
ing business to a public use, thereby granting the publi2 an interest in that use and subjecting themselves to public regulation to extent of that interest, although the property continuas to belong to its private owner, and to be entitled to protection accordingly, as public warehouses
for storage of grain, banks, ami insurance companies. Rohrer v. Milk Control Board, 121 Pa.Super. 281, 184 A. 133, 138.
AFFECTIO TUA NOMEN IMPONIT OPER! TUO. Your disposition (or motive, intention) gives name (or character) to your work or act. Bract. fol. 2b, 101b.
AFFECTION. The making over, pawning, or mortgaging of a thing to assure the payment of a sum of money, or the discharge of some other duty or service. Crabb, Technol.Dict.
In a medica’ sense, an abnormal bodily condition. A local ”affection" is not a local disease within the meaning of an insurance policy, onless the affection has sufficiently developed to have some bearing on the general health. Cady v. Fidelity & Casualty Co. of New York, 134 Wis. 322, 113 N.W. 967, 971, 17 L.R.A.,N.S., 260.
AFFECTUS. Disposition; intention, impulse or affection of the mind. One of the causes for a challenge of a juror is propter affectum, on ac-count of a suspicion of bias or favor. 3 Bl.Comm. 363; Co.Litt. 156.
AFFECTUS PUNITUR LICET NON SEQUATUR EFFECTUS. The intention is punished although the intended result does not follow. 9 Coke, 55.
AFFEER. To assess, liquidate, appraise, fix in amount.
Account
To confirm It on oath In the exchequer. Cowell;
Blount; Spelman.
Amercement
To establish the amount which one amerced in a court-leet should pay. See Amercement.
AFFEERORS. Persons who, in court-leets, upon oath, settle and moderate the fines and amerce-ments imposed on those who have committed of-fenses arbitrarily punishable, or that have no ex-press penalty appointed by statute. They are al-so appointed to moderate fines, etc., in courts-baron. Cowell.
AFFERMER. L. Fr. To let to farm. Also to make sure, to establish or confirm. Kelham.
AFFIANCE. To assure by pledge. A plighting of troth between man and woman. Littleton, § 39.
An agreement by which a man and woman promise each other that they will marry together. Pothier, Traité clu Mar, n. 24. Co.Litt. 34 a. See Dig. 23, 1, 1; Code, 5. 1. 4.
AFFIANT. The person who makes and sub-scribes an affidavit. The word is used, in this sense, interchangeably with "deponent." But the latter term should be reserved as the designation of one who makes a deposition.
AFFIDARE. To swear faith to; to pledge one’s faith or do fealty by making oath. Cowell. Used of the mutual relation arising between landlord and tenant; 1 Washb.R.P. 19; 1 Bla.Com. 367; Termes de la Ley, Fealty. Affidavit is of kindred meaning.
AFFIDARI. To be mustered and enrolled for sol-diers upon an oath of fidelity.
AFFIDATIO. A swearing of the oath of fidelity or of fealty to one’s lord, under whose protection the quasi-vassal has voluntarily come. Brown.
AFFIDATIO DOMINORUM. An oath taken by the lords in parliament.
AFFIDATUS. One who is not a vassal, but who for the sake of protection has connected himself with one more powerful. Spelman; 2 BI.Comm. 46.
AFFIDAVIT. A written or printed declaration or statement of facts, made voluntarily, and con-flrmed by the oath or affirmation of the party making it, taken before an officer having authori-ty to administer such oath. Cox v. Stern, 170 III. 442, 48 N.E. 906, 62 Am.St.Rep. 385; Hays v. Loomis, 84 Ill. 18. A statement or declaration re-duced to writing, and sworn to or affirmed before some officer who has authority to administer an oath or affirmation. Shelton v. Berry, 19 Tex. 154, 70 Am.Dec. 326, and In re Breidt, 84 N.J.Eq. 222, 94 A. 214, 216.
A written or printed declaration or statement of facts, !nade voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. June v. School Dist. No. 11, Southfield Tp., 283 Mich. 533, 278 N.W. 676, 677, 116 A.L.R. 581. Any voluntary ex parte statement reduced to wrlting and sworn to or affirmed before some person legally authorized to administer oath or aflirmation, made without notice to adverse party and without opportunity to cross-examine. Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d 434, 435, 436. The word sometimes lncludes "deposItions." U. S. v. Kaplan, D.C.Ga., 286 F. 963, 970.
"Affidavits" are of two kinds; those which serve as evl-dence to advise the court in the decislon of some prelimi-nary lssue or determination of some substantial right, and those which merely serve to invoke the Judicial power. Worthen v. State, 189 Ala. 395, 66 So. 686, 688.
AFFIDAVIT OF DEFENSE. An affidavit stating that the defendant has a good defense to the plaintiff’s action on the merits. The statements required in such an affidavit vary considerably in the different states where they are required. Called also an affidavit of merits (q. v.), as in Massachusetts.
AFFIDAVIT OF DEMAND. "Affidavit of de-mand" Oled under Code section to obtain judg-ment for want of affidavit of defense held not equivalent of "declaration." Penn Central Light & Power Co. v. Central Eastern Power Co., 6 W. W.Harr. 74, 171 A. 332.
AFFIDAVIT OF MERITS. One setting forth that the defendant has a meritorious defense (substan-tial and not technical) and stating the facts con-stituting the same. Palmer v. Rogers, 70 Iowa 381, 30 N.W. 645. Represents that, on the sub-stantial facts of the case, justice is with the af-fiant. Wendel v. Wendel, 58 S.D. 438, 236 N.W. 468, 469.
AFFIDAVIT OF SERVICE. An affidavit intend-ed to certify the service of a writ, notice, or other document.
AFFIDAVIT TO IIOLD TO RAIL. An affidavit required in many cases before the defendant in a civil action may be arrested. Such an affidavit
must contain a statement, clearly and certainly expressed, by some one acquainted with the fact, of an indebtedness from the defendant to the plaintiff, and must show a distinct cause of action; 1 Chit.Pl. 165.
AFFILARE. L. Lat. To put on record; to file or affile. Affiletur, let it be filed. 8 Coke, 160. De recordo affilatum, affiled of record. 2 Ld. Raym. 1476.
AFFILE. A term employed in old practice, signi-fying to put on file. 2 Maule & S. 202. In modern usage it is contracted to file.
AFFILIATE. Signifies a condition of being unit-ed, being in close connection, allied, or attached as a member or branch. Johanson v. Riverside County Select Groves, 4 Cal.App.2d 114, 40 P,2d 530, 534.
"Afflliate with" le defined as to recelve on friendly tercos; to associate with; to be intímate with; to sympa-thize with; to consort with; and to connect or associate one’s self with. Wolck v. Weedin, C.C.A.Wash., 58 F.2d 928, 930. But "afIlliated" does not bear construction that one of aftillated organizations is in all particulars identical with or covered by parent organization with which it may be said to be affiliated. People v. Horluchl, 114 Cal.App. 415, 300 P. 457, 460.
AFFILIATION. Imports less than membership in an organization, but more than sympathy, and a working alliance to bring to fruition the pro-scribed program of a proscribed organization, as distinguished from mere co-operation with a pro-scribed organization in lawful activities, is es-sential. Bridges v. Wixon, Cal., 326 U.S. 135, 65 S.Ct. 1443, 1447, 89 L.Ed. 2103.
It Includes an element of dependabillty upon which the organization can rely which, though not equIvalent to membership duty, reste upon course of conduct that could not be abruptly ended without giving at least reasonable cause for charge of breach of good faith, U. S. ex rel. Kettunen v. Reimer, C.C.A.N.Y., 79 F.2d 315, 317.
The act of imputing or determining the paterni-ty of a bastard child, and the obligation to main-tain it.
Corporations
Actual control of corporations by same interests is insufficient; legally enforceable control of stock of corporations by same interests being required. Island Petroleum Co. v. Commissioner of Internal Revenue, C.C.A., 57 F.2d 992, 994. Commences with acquisition of corporation from owners out-side of group and ends with disposal of all prop-erties or stock to those outside group. Hernandez v. Charles Ilfeld Co., C.C.A.N.M., 66 F.2d 236, 238.
Ecclesiastical Law
A condition which prevented the superior from removing the person afilliated to another convent. Guyot, Répert.
French Law
A species of adoption which exists by custom in some parts of France. The person affiliated suc-ceeded equally with other heirs to the property ac-quired by the deceased to whom he had been af-filiated, but not to that which he inherited.
AFFINAGE. A refining of metals. Blount.
AFFINES. In the civil law, connections by mar-riage, whether of the persons or their relatives. Calvinus, Lex.
Neighbors, who own or occupy adjoining lands. Dig. 10, 1, 12.
From this word we have affinity, denoting relationship by marriage; 1 Bla.Com. 434. The singular, affinis, is used in a variety of related significations—a boundary ; Du Cange; a partaker or sharer, affinis culpce (an aider or one who has knowledge of a crime); Calvinus, Lex.
AFFINIS MEI AFFINIS NON EST MIHI AF-FINIS. One who is related by marriage to a per-son related to me by marriage has no affinity to me. Shelf.Mar. & Div. 174.
AFFINITAS. Lat. In the civil law, affinity; re-lationship by marriage. Inst. 1, 10, 6.
AFFINITAS AFFINITATIS. Remote relation-ship by marriage. That connection between par-ties arising from marriage which is neither con-sanguinity nor affinity. Davidson v. Whitehill, 87 Vt. 499, 89 A. 1081, 1085. This term signifies the connection between the kinsmen of the two per-sons married, as, for example, the husband’s brother and the wife’s sister. Erskine, Inst. 1. 6. 8.
AFFINITY. A close agreement; relation; spir-itual relation or attraction held to exist between certain persons. State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363, 367. Relation which one spouse because of marriage has to blood rela-tives of the other. State v. Hooper, 140 Kan. 481, 37 P.2d 52.
Degrees of relationship by affinity are computed as are degrees of relationship by consanguinity. The doctrine of affInity grew out of the canonical maxim that marriage makes husband and wife one. The husband has the same relation, by affinity, to his wlfe’s blood relatives as she has to them by consanguinity and vice versa. State v. Hooper, 140 Kan. 481, 37 P.2d 52,
Afflifity 1s distinguished finto three kinds: (1) Direct, or that subsisting between the husband and his wlfe’s rela-tions by blood, or between the wife and the husband’s rela-tions by blood; (2) secondary, or that which subsists between the husband and his wife’s relations by marriage; (3) collateral, or that which subsists between the husband and the relations of his wife’s relations. Wharton.
In a larger sense, consanguinity or kindred. Co.Litt. 157a.
Quasi Affinity
In the civil law, the affinity which exists be-tween two persons, one of whom has been be-trothed to a kinsman of the other, but who have never been married.
AFFIRM. To ratify, make flrm, confirm, estab-lish, reassert. Cowell; Ashby v. Peters, 128 Neb. 338, 258 N.W. 639, 644, 99 A.L.R. 843.
In the practice of appellate courts, to affirm a judgment, decree, or order, is to declare that it is valid and right, and must stand as rendered below; to ratify and reassert it; to concur In lts correctness and confirm its efflcacy. Boner v. Fall River County Bank, 25 Wyo. 260, 168 P. 726, 727.
Contracts
Ratify and accept voidable contract. Cf. Adopt.
Black’s Law Dictionary Revised 4th Ed.-6
Pleading
To allege or ayer a matter of fact; to state it affirmatively; the opposite of deny or traverse.
Practice
To make affirmation; to make a solemn and formal declaration or asseveration that an affi-davit is true, that the witness will tell the truth, etc., this being substituted for an oath in certain cases. Also, to give testimony on affirmation.
AFFIRMANCE. In practice. The confirming, or ratifying of a former law, or judgment. Cowell; Blount.
The confirmation and ratification by an appel-late court of a judgment, order, or decree of a lower court brought before it for review. See Af-firm, note.
The ratification or confirmation of a voidable contract or act by the party who is to be bound thereby.
The term is In accuracy to be distinguished from ratifi-cation, which is a recognition of the validity or binding force as against the party ratifying, of some act performed by another person; and from confirmation, which would seem to apply more properly to cases where a doubtful authority has been exercised by another In behalf of the person ratifying; but three distinctions are not generaily observed with much care.
AFFIRMANCÉ DAY GENERAL. In the English court of exchequer, a day appointed by the judges of the common Aleas, and barons of the exche-quer, to be held a few days after the beginning of every term for the general affirmance or reversal of judgments. 2 Tidd, Pr. 1091.
AFFIRMANT. A person who testifles on affirma-tion, or who affirms instead of taking an oath. See Affirmation. Used in affidavits and deposi-tions which are affirmed, instead of sworn to in place of the word "deponent."
AFFIRMANTI, NON NEGANTI INCUIVIBIT PROBATIO. The [burden of] proof lies upon him who affirms, not upon one who denles. Steph. Pl. 84.
AFFIRMANTIS EST PROBARE. He who affirms must prove. Porter v. Stevens, 9 Cush., Mass., 535.
AFFIRMATION. In practice, a solemn and for-mal declaration or asseveration that an affidavit is true, that the witness will tell the truth, etc., this being substituted for an oath in certain cases.
A solemn religious asseveration in the nature of an oath. 1 Greenl.Ev. § 371.
Quakers, as a class, and other persons who have conscl-entious scruples against taking an oath, are allowed to make affirmation In any mode which they may declare to be binding upon their conscientes, in confirmation of the truth of testimony which they are about to glve. 1 Atk. 21, 46; Cowp. 340, 389; 1 Leach Cr.Cas. 64; 1 Ry. & M. 77.
AFFIRMATION OF FACT. A statement concern-ing a subject-matter of a transaction which might otherwise be only an expression of opinion but he transaction, and reasonably induces the other party to consider and rely upon it, as a fact. Stone v. McCarty, 64 Cal.App. 158, 220 P. 690, 694.
AFFIRMATIO UNIUS EXCLUSIO EST ALTERI-4JS. The affirmance of one thing is the exclusion of the other. State v. Evans, 214 La. 472, 38 So.2d 140, 147.
AFFIRMATIVE. That which declares positively; that which avers a fact to be true; that which establishes; the opposite of negative.
The party who, upon the allegations of pleadings joining issue, is under the obligation of making proof, in the first instance, of matters alleged, is satd to hold the afilrmative, or, in other words, to sustaln the burden of proof. Abbott.
As to affirmative "Damages," "Plea," "Proof," "Warranty," see those titles.
AFFIRMATIVE ACTION. The "affirmative ac-tion" which the National Labor Relations Board ‘ is authorized to take to effectuate the policies of the National Labor Relations Act is action to make effective the redress of rights conferred upon employees by the act. National Labor Rela-tions Board v. National Casket Co., C.C.A.2, 107 F.2d 992, 998,
It le broad, but is not unlimited, la remedial not punI-tIve, and is to be exercised in aid of the Board’s authority to restrain violations and as a means of removing or avold-ing the consequences of vlolations, National Labor Rela-tions Board v. Fansteel Metallurgical Corporation, 306 U.S. 240, 59 S.Ct. 490, 497, 83 L.Ed. 627, 123 A.L.R. 599.
It la not disciplinary. National Labor Relations Board v. Leviton Mfg. Co., C.C.A.2, 111 F.2d 619, 621.
AFFIRMATIVE AUTHORIZATION. Something more than authority by mere implication. White, Gratwick & Mitchell v. Empire Engineering Co., 125 Misc. 47, 210 N.Y.S. 563, 572.
AFFIRMATIVE CHARGE. The general "affirma-tive charge" is an instruction to the jury that, whatever the evidence may be, defendant cannot be convicted under the count in the indictment to which the charge is directed. Coker v. State, 18 Ala.App, 550, 93 So. 384, 386.
AFFIRMATIVE DEFENSE. In code pleading. New matter constituting a defense; new matter which, assuming the complaint to be true, con-stitutes a defense to it. Carter v. Eighth Ward Bank, 33 Misc. 128, 67 N.Y.S. 300.
AFFIRMATIVE EASEMENT. An "affirmative easement" is one which gives to the owner of the dominant tenement the right to use the servient tenement, or to do some act thereon which would otherwise be unlawful. Clements v. Taylor, Tex. Civ.App., 184 S.W.2d 485, 487.
AFFIRMATIVE PREGNANT. In pleading, an af-firmative allegation implying some negative in favor of the adverse party. Fields v. State, 134 Ind. 46, 32 N.E. 780.
AFFIRMATIVE PROOF. Such evidence of the truth of matters asserted as tends to establish them, regardless of character of evidence offered. Glass v. Newport Clothing Co., 110 Vt. 368, 8 A.2d 651, 654.
AFFIRMATIVE RELIEF. Relief, benefit, or com-pensation which may be due and granted to de-fendant. Garner v. Hannah, 6 Duer, N.Y., 262. Relief for which defendant might maintain an ac-tion independently of plaintiff’s claim and on which he might proceed to recovery, although plaintiff abandoned his cause of action or failed to establish it. Southwestern Surety Ins. Co. v. Walser, 77 Okl. 240, 188 P. 335, 336.
AFFIRMATIVE STATUTE. A statute couched in affirmative or mandatory terms. 1 Bl.Comm. 142.
One which directa the doing of an act, or declares what shall be done; as a negative statute is one which prohibits a thing from being done, or declares what shall not be done. Blackston,e describes affirmative acta of parliament as those "whereln justice is directed to be done according to the law of the land." 1 B1,Comm. 142.
AFFIRMATIVE WARRANTY. Affirms existence of a fact at time policy is entered into, while promissory warranty requires that something be done or not done after policy has taken effect. Sentinel Life Ins. Co. v. Blackmer, C.C.A.Colo., 77 F.2d 347, 350.
AFFIX. Fix or fasten in any way, to attach physically. Penn v. Dyba, 115 Cal.App. 67, 1 P.2d 461, 464. To attach to, inscribe, or impress upon, as a signature, a seal, a trade-mark. Pen.Code N.Y. § 367. To attach, add to, or fasten upon, per• manently, as in the case of fixtures annexed to real estate.
A thing is deemed to be affixed to land when it is attached to it by the roots, as in the case of trees, vines, or shrubs; or imbedded In it, as in the case of wells; or permanently resting upon it, as In the case of bulldings; or permanently attached to what is thus permanent, as by means of cement, plaster, nalls, bolts, or screws. Miller v. Waddingham, 3 Cal.Unrep.Cas. 375, 25 Pac. 688, n L.R.A. 510; Tolle v. Vandenberg, 44 Okl. 780, 146 P. 212, 213.
AFFIXING. Securely attached. Mechanics’ Nat. Bank of Trenton v. Newman, 137 Misc. 587, 244 N.Y.S. 529, 531.
AFFIXUS. In the civil law, affixed, fixed, or fas-tened to.
AFFLICTION. A distress of mind or body; that which causes continuing anguish or suffering.
AFFORARE. To set a price or value on a thing. Blount.
AFFORATUS. Appraised or valued, as things vendible in a market. Blount.
AFFORCE. To add to; to increase; to strength-en; to add force to.
AFFORCE THE ASSIZE. In old English practice, a method ,of securing a verdict, where the jury disagreed, either by confining them without meat and drink, or, more anciently, by adding other jurors to the panel, to a limited extent, until twelve could be found who were unanimous. Bract. fol. 185b, 292a; Fleta, lib. 4, c. 9, § 2; 2 Reeve, Hist.Eng.Law, 267.
AFFORCIAMENTUM. In old English law, a fortress or stronghold, or other fortification. Cow-elL
The calling of a court upon a solemn or extra-ordinary occasion. Id.
AFFOREST. To convert land into a forest in the legal sense of the word.
AFFORESTATION. The turning of a part of a country into forest or woodland or subjecting it to forest law, q. v.
AFFOUAGE. In French law, the right of the in-habitants of a commune or section of a commune to take from the forest the fire-wood which is necessary for their use. Duverger.
AFFRANCHIR. L. Fr. To set free. Kelham. AFFRANCHISE. To liberate; to make free.
AFFRAY. The fighting of two or more persons in some public place to the terror of the people. Wallace v. Commonwealth, 207 Ky. 122, 268 S.W. 809, 813.
Where two or more persons voluntarily or by agreement engage in any light, or use any blows or vlolence towards each other in an angry or quarrelsome mánner, in any public place to the disturbance of others.
Words are Insufficient, but if one person, by such abusive language toward another as is calculated and intended to bring on a fight, induces the other to strike him, both are guilty of "affray." State v. Maney, 194 N.C. 34, 138 S.E. 441, 442.
It differs from a riot in not being premeditated. Hawk. P.C. bk. 1, c. 65, § 3; 4 Bl.Comm. 146; 1 Russ.Crimes, 271.
AFFRECTAMENTUM. Affreightment; a con-tract for the hire of a vessel. From the Fr. fret, which, according to Cowell, meant tons or ton-nage. A ffreightamentum was sometimes used. Du Cange.
AFFREIGHTMENT: A contract of •affreightment is a contract with a ship-owner to hire his ship, or part of it, for the carriage of goods. The Fred Smartley, Jr., C.C.A.Va., 100 F.2d 971, 973.
Such a contract generally takes the forro elther of a charter-party or of a 13111 of lading. Bramble v. Culmer, 78 Fed. 501, 24 C.C.A. 182. A contract to transport goods con-stitutes a contract of "affreightment," although there is towage service connected therewith. The Independent, D.C.La., 37 F.Supp. 106, 111.
In French law, freighting and affreightIng are distin-guished. The owner of a ship freights it, (le frete;) he Is called the freighter, (freteur;) he is the letter or lessor, (locateur, locator.) The merchant affreights (affrete) the ship, and is called the affreighter, (affreteur;) he is the hirer, (locataire, conductor.) Emerig. Tr. des Ass. c. 11, § 3.
AFFRETEMENT. Fr. In French law, the hiring of a vessel; affreightment (q. v.). Called also nolissement. Ord.Mar. liv. 1, tit. 2, art. 2; Id. liv. 3, tit. 1, art. 1.
AFFRI. In old English law, plow cattle, bullocks or plow horses. A ffri, or afri carucce; beasts of the plow. Spelman.
AFFRONT. An insult or indignity; assault, in-sololence.
AFORESAID. Before, or already said, mentioned, or recited; premised. Plowd. 67. Alabama Great Southern R. Co. v. Smith, 191 Ala. 643, 68 So. 56, 57. Foresaid is used in Scotch law.
Although the words "preceding" and "aforesaid" gen-erally mean next before, and "foliowing" means next after, yet a different signification will be given to them if required by the context and the facts of the case. Simpson v. Robert, 35 Ga. 180.
AFORETHOUGHT. In criminal law, deliberate; planned; premeditated; prepense. State v. Fiske, 63 Conn. 388, 28 A. 572. See Malice Aforethought; Premeditation; 4 Bla.Com. 199; Respublica v. Mulatto Bob, 4 Dall., Pa., 146, 1 L.Ed. 776; U. S. v. Cornell, 2 Mas. 91, Fed.Cas.No.14,868.
"Aforethought" as used in the law of murder means thought of beforehand and for any length of time, however short, before the doing of the act, and is synonymous with premeditation. State v. Smith, 26 N.M. 482, 194 P. 869, 872.
AFRICAN DESCENT. Persons of African nativi-ty or of "African descent" within the meaning of the Naturalization Act, as amended by Act July 14, 1870 (8 U.S.C.A. § 703 note), are members of the negro races of Africa or their descendants by intermixture with races constituting free white persons, the negro races referred to being those from which the emancipated slaves in the United States descend. Ex parte Shahid, D.C.S.C., 205 F. 812, 815.
AFTER. Later, succeeding, subsequent to, in-ferior in point of time or of priority or prefer-ence.
Subsequent In time to. Cheney v. National Surety Cor-poration, 256 App.Div. 1041, 10 N.Y.S.2d 706. At. Hyman Bros, Box & Label Co. v. Industrial Accident Commission, 180 Cal. 423, 181 P. 784, 786. On and after New York Trust Co. v. Portland Ry. Co., 197 App.Div. 422, 189 N.Y.S. 346, 348. "At the end of" or "as soon as," and in computation of time, is generally understood in sense of excluding day of date mentioned. Taylor v. National Life & Acci-dent Ins. Co., Tex.Civ.App., 63 S.W.2d 1082, 1083. But the words "after the filing" as used in sections 63 and 68 of the Bankruptcy Act (11 U.S.C.A. §§ 103, 108) do not mean the day after that of filing, but refer to the very Instant of fil-ing if ascertainable. In re Ledbetter, D,C.Ga., 267 F. 893, 896. A note payable generally "after date," is payable on demand, Love v. Perry, 19 Ga.App. 86, 90 S.E. 978, 979,
AFTER-ACQUIRED. Acquired after a particular date or event. Thus, a judgment is a lien on af t-er-acquired realty, i. e., land acquired by the debt-or after entry of the judgment. Hughes v. Hughes, 152 Pa. 590, 26 A. 101.
AFTER ACQUIRED TITLE. Doctrine under which title acquired by grantor who previously attempted to convey title to land which he did not in fact own, inures automatically to benefit of prior grantees. Perkins v. White, Miss., 43 So.2d 897, 899; Morris v. Futischa, 194 Okl. 224, 148 P.2d 986, 987.
AFTER-BORN CHILD. A statute making a will void as to after-born children means physical birth, and is not applicable to a child legitimated by the marriage of its parents. Appeal of Mc-Culloch, 113 Pa. 247, 6 A. 253. See En Ventre Sa Mere; Posthumous Child.
AFTER—DISCOVERED
AFTER-DISCOVERED. Discovered or made known after a particular date or event.
AFTER-DISCOVERED EVIDENCE. See Evi-dence.
AFTER SIGHT. This term as used in a bill pay-able so many days after sight, means after legal sight; that is, after legal presentment for ac-ceptance. The mere fact of having seen the bill or known of its existente does not constitute le-gal "sight." Mitchell v. Degrand, 17 Fed.Cas. 494.
AFTERMATIL A second crop of grass mown in the same season; also the right to take such sec-ond crop. See 1 Chit.Gen.Pr. 181.
"Aftermath" as used in the manufacture of window glass means the colder glass remaining on and in molten bath alter drawing of glass cyllnder. Okmulgee Window Glasa Co. v. Window Olas! Mach. Co., C.C.A.Okl., 265 F. 626, 630.
AFTERNOON. May mean the whole time from noon to midnight, or it may mean the earlier part of that time as distinguished from evening. Clevenger v. Carl B. King Drilling Co., Tex.Civ. App., 62 S.W.2d 1001. But ordinarily means that part of day between noon and evening. Buttrick v. Woman’s Hospital Aid Ass’n, 87 N.H. 194, 177 A. 416, 418.
AFTERTHOUGHT. A thought composed after the event and with deliberation. A devise to es-cape difficulty.
AFTERWARD, AFTERWARDS. Subsequent in point of time; synonymous with "thereaf ter," Lamoutte v. Title Guaranty & Surety Co., 165 App. Div. 573, 151 N.Y.S. 148, 154, or with "then," Boyce v. Mosely, 102 S.C. 361, 86 S.E. 771, 772.
AGAINST. Adverse to; contrary, Cram v. Meag-her, 113 Vt. 463, 35 A.2d 855, In re Dean’s Estate, 350 Mo. 494, 166 S.W.2d 529, 533. Signifles discord or conflict; opposed to; without the consent of; in contact with. Palmer v. Superior Mf g. Co., D.C. N.Y., 203 F. 1003, 1005, Clemens v. Perry, Tex.Civ. App., 29 S.W.2d 529, 533. Sometimes meaning "upon," which is almost, if not altogether, synon-ymous with word "on." Northern Pac. Ry. Co. v. Gas Development Co., 103 Mont. 214, 62 P.2d 204, 205. Denoting manifestation of raped wo-man’s utmost reluctante and greatest resistance. State v. Egner, 317 Mo. 457, 296 S.W. 145, 146.
AGAINST THE EVIDENCE. Means "against the weight of the evidence." Cram v. Meagher, 113 Vt. 463, 35 A.2d 855.
AGAINST THE FORM OF THE STATUTE. Tech-nical words which must be used in framing an in-dictment for a breach of the statute prohibiting the act complained of. The Latin phrase is con-tra forman statuti, q. v. State v. Murphy, 15 R.I. 543, 10 A. 585.
AGAINST THE PEACE. A technical phrase used in alleging a breach of the peace. See Contra Pacem. State v. Tibbetts, 86 Me. 189, 29 A. 979.
AGAINST THE WEIGHT OF THE EVIDENCE, "Contrary to the evidence". Russell v. Pilger, 113 Vt. 537, 37 A.2d 403, 411.
AGAINST THE WILL. Technical words which must be used in framing an indictment for rob-bery from the person, rape and some other of-fenses. Whittaker v. State, 50 Wis. 521, 7 N.W. 431, 36 Am.St.Rep. 856.
AGALMA. An impression or image of anything on a seal. Cowell.
AGARD. L. Fr. An award. Nul fait agard; no award made.
AGARDER. L. Fr. To award, adjudge, or de-termine; to sentence, or condemn.
AGE. The length of time during which a person has lived; the time at which one attains full per-sonal rights and capacities. In law the term sig. nifies those periods in the lives of persons of both sexes which enable them to do certain acts which, bef ore they had arrived at those periods, they were prohibited from doing. 2 C.J.S., p. 1013.
As used in particular statutes, the term implies disability and, by definition, has been applied to all minors under a certain age and to others dis-abled by old age. Hampton v. Ewert, C.C.A.Okl.,
22 F.2d 81, 87.
Age and schooling certificate. Collings-Taylor Co. v. American Fidelity Co., 96 Ohio St. 123, 117 N.E. 158.
Age fixed by law. Johnson v. Travelers’ Ins. Co., 147 Or. 345, 32 P.2d 587.
Age of consent. Ex parte Hutchens, 296 Mo. 331, 246 S.W. 186, 189.
Age of legal consent. Johnson v. Alexander, 39 Cal.App. 177, 178 P. 297; Fisher v. Bernard, 65 Vt. 663, 27 A. 316.
Age of majorlty. Gates v. Shaffer, 72 Wash. 451, 130 P. 896.
Age of maturity. Commerclal Bank & Trust Co. v. Noble, 112 So. 691, 146 Miss. 552.
Age of twenty-one years. Vanderbilt v. Eldman, 196 U.S. 480, 25 S.Ct. 331, 49 L.Ed. 563.
Legal Age. See Legal Age.
Legal school age. Inhabitants of Needham v. Wellesley, 139 Mass. 372, 31 N.E. 732.
AGE, Awe, Aive. L. Fr. Water. Relham.
AGE PRAYER. A suggestion of nonage, made by an infant party to a real action, with a prayer that the proceedings may be deferred until his full age. It is now abolished. St. 11 Geo. IV.; 1 Wm. IV. c. 37, § 10; 1 Lil.Reg. 54; 3 Bl.Comm. 300.
AGENCY. Includes every relation in which one person acts for or represents another by latter’s authority, Saums v. Parfet, 270 Mich. 165, 258 N.W. 235, where one person acts for another, ei-ther in the relationship of principal and agent, master and servant, or employer or proprietor and independent contractor, Gorton v. Doty, 57
Idaho 792, 69 P.2d 136, 139.
Properly speaking, agency relates to commer-cial or business transactions. Humble Oil & Re-fining Co. v. Bell, Tex.Civ.App., 172 S.W.2d 800,
803, and frequently is used in connection with an arrangement which does not in law amount to an agency, as where the essence of an arrange-ment is bailment or sale, as in the case of a sale agency exclusive in certain territory. State Com-pensation Ins. Fund v. Industrial Accident Com-mission, 216 Cal. 351, 14 P.2d 306, 310.
It also designates a place at which business of company or individual is transacted by an agent. Johnson Freight Lines v. Davis, 170 Tenn. 177, 93 S.W.2d 637, 639.
The relation created by express or implied contract or by law, whereby one party delegates the transaction of some lawful business with more or less discretionary power to another, who undertakes to manage the affair and ren-der to him an account thereof. State ex rel. Cities Service Gas Co. v. Public Service Commission, 337 Mo. 809, 85 S.W.2d 890, 894. Or where one person confides the man-agement of some affair, to be transacted on his account, to other party. 1 Liverm. Prin. & Ag. 2. Or one party is authorized to do certain acts for, or in relation to the rights or property of the other. But means more than tacit permission, and involves request, instruction, or com-mand. Klee v. U. S., C.C.A.Wash., 53 F.2d 58, 61. Being the consensual relation existing between two persons, by virtue of which one is subject to other’s control. Tarver, Steele & Co. v. Pendleton Gin Co., Tex.Civ.App., 25 S.W.2d 156, 159.
Actual agency. Exists where the agent is really em-ployed by the principal. Weidenaar v. N. Y. Life Ins. Co., 36 Mont. 592, 94 P. 1, 6.
Agency by estoppel. One created by operation of law and established by proof of such acts of the principal as reasonably lead to the conclusion of its existence. Sigel-Campion Live Stock Commission Co. v. Ardohain, 71 Colo. 410, 207 P. 82, 83. Arises where principal, by negligence in failing to supervise agent’s affairs, allows agent to exer-cise powers not granted to him, thus justifying others in believing agent possesses requisito authority. Reifsnyder v. Dougherty, 301 Pa. 328, 152 A. 98, 100. Though princi-pal have no notice of agent’s conduct, Dispatch Printing Co. v. National Bank of Commerce, 109 Minn. 440, 124 N.W. 236, 50 L.R.A.,N.S., 74.
Agency of necessity. A term sometimes applied to the kind of implied agency which enables a wife to procure what is reasonably necessary for her maintenance and sup-port on her husband’s credit and at his expense, when he falls to make proper provision for her necessities. Bost-wifk v. Brower, 49 N.Y.S. 1046, 22 Misc. 709.
Deed of agency. A revocable and voluntary trust for payment of debts. Wharton.
Exclusive agency. Defined as an agreement by owner that during life of contract he will not sell property to a purchaser procured by another agent, which agreement does not preclude owner himself from selling to a pur-chaser of his own procuring, while a contract giving a broker "exclusive sale" is more than such exclusive agency, and is an agreement by the owner that he will not sell the property during the life of the contract to any purchaser not procured by the broker In question. Harris v. McPher-son, 97 Conn. 164, 115 A. 723, 724, 24 A.L.R. 1530; Harris & White v. Stone, 137 Ark. 23, 207 S.W. 443, 444.
General agency. That which existe when there is a dele-gation to do all acts connected with a particular trade, business or employment. Hinkson v. Kansas City Life Ins. Co., 93 Or. 473, 183 P. 24, 29. It implies authority on the part of the agent to act without restriction or qualification in all matters relating to the business of his principal. Schwartz v. Maryland Casualty Co., 82 N.H. 177, 131 A. 352, 353.
Implied agency. One created by act of parties and deduced from proof of other facts. Sigel-Campion Live Stock Commission Co. v. Ardohain, 71 Colo. 410, 207 P. 82, 83. It is an actual agency, proved by deductions or infer-ences from other facts, and third party need have no knowledge of the principal’s acts, nor have relied on them. Kentucky-Pennsylvania 011 & Gas Corporation v. Clark, 247 Ky. 438, 57 S.W.2d 65.
Ostensible agency. One which exists where the principal intentionally or by want of ordinary care causes a Ultra person to belleve another to be his agent who is not really employed by him. Weidenaar v. N. Y. Life Ins. Co., 36 Mont. 592, 94 P. 1, 6. See, also, Agency by Estoppel.
AGENCY COUPLED WITH INTEREST. Interest in continued existence of power or authority to act with reference to business, where secured by contract and based on consideration moving from agent to principal looking to exercise of power as means of reimbursement, creates "agency coupled with an interest." Bowling v. National Convoy & Trucking Co., 101 Fla. 634, 135 So. 541, 544. Agent must have an interest or estate in the thing to be disposed of or managed under the power. Eduardo Fernandez Y Compania v. Lon-gino & Collins, 199 La. 343, 6 So.2d 137, 142, 143.
AGENCY RELATIONSHIP. An employment for purpose of representation in establishing legal re-lations between principal and third persons. Bla-bon v. Hay, 269 Mass. 401, 169 N.E. 268, 271.
AGENDA. Memoranda of things to be done, as items of business or discussion to be brought up at a meeting; a program consisting of such items. Webster. Baton Rouge Bldg. Trades Council v. T. L. James & Co., 201 La. 749, 10 So.2d 606, 619.
AGENESIA. In medical jurisprudence, impoten-tia generandi; sexual impotence; incapacity for reproduction, existing in either sex, and whether arising from structural or other causes.
AGENFRIDA. Sax. The true master or owner of a thing. Spelman.
AGENIIINA. In Saxon law, a guest at an inn, who, having stayed ‘there for three nights, was then accounted one of the family. Cowell.
AGENS. Lat. An agent, a conductor, or manag-er of affairs. Distinguished from factor, a work-man. A plaintiff. Fleta, lib. 4, c. 15, § 8.
AGENT. A person authorized by another to act for him, one intrusted with another’s business. Downs v. Delco-Light Co., 175 La. 242, 143 So. 227. One who represents and acts for another under the contract or relation of agency, q. v. Fowler v. Cobb, Mo.App., 232 S.W. 1084. A business rep-resentative, whose function is to bring about, mod-ify, affect, accept performance of, or terminate contractual obligations between principal and third persons. Saums v. Parfet, 270 Mich. 165, 258 N.W. 235. One who undertakes to transact some business, or to manage some affair, for another, by the authority and on account of the latter, and to render an account of it. 1 Livermore, Ag. 67. See Co.Litt. 207; 1 B. & P. 316; Thomas B. Jeffrey Co. v. Lockridge, 173 Ky. 282, 190 S.W. 1103, 1105. One who acts for or in place of another by author-ity from him; a substitute, a deputy, appointed by principal with power to do the things which prin-cipal may do. Stephenson v. Golden, 279 Mich. 710, 276 N.W. 849. One who deals not only with things, as does a servant, but with persons, using his own discretion as to means, and frequently establishing contractual relations between his
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principal and third persons. Rendleman v. Niag-ara Sprayer Co., D.C.I11., 16 F.2d 122, 124. See, also, State v. Bond, 94 W.Va. 255, 118 S.E. 276, 279.
Agent and patient. A phrase indicating the state of a person who is required to do a thing, and is at the same time the person to whom it is done; as, when a man is indebted to another, and he appoints him his executor, required to pay the debt in his capacity of executor. and entitled to receive ít in his own right. Termes de la Ley.
Apparent agent or ostensible agent. One whom the prin-cipal, eíther intentionally or by want of ordinary tare, induces third persons to believe to be his agent, though he has not, either expressly or by implication, conferred authority on him. Ware v. Home Mut. Ins. Ass’n of Iowa, 135 Neb. 329, 281 N.W. 617, 620. A person who, whether or not authorized, reasonably appears te> third person, because of manifestations of another, to be authorized to act as agent for such other. Hansche v. A. J. Conroy, Inc., 222 Wis. 553, 269 N.W. 309, 312.
Diplomatic agent. A person employed by a soverelgn to manage his private affairs, or those of his subjects in his name, at the court of a foreign government. Wolff, Inst. Nat. § 1237.
General agency business. One not engaged as agent for single firm or person, but holding himself out to public as being engaged In business of being agent. Comer v. State Tax Commission of New Mexico, 41 N.M. 403, 69 P.2d 936.
General agent. One employed in his capacity as a pro-fessional man or master of an art or trade, or one to whom the principal confides his whole business or all transactions or functions of a designated class; or he is a person who is authorized by his principal to execute all deeds, sign all contracts, or purchase all goods, required in a particular trade, business, or employment. See Story, Ag. § 17; Thompson v. Michigan Mut. Life Ins. Co., 56 Ind.App. 502, 105 N.E. 780, 782; Little v. Minneapolis Threshing Mach. Co., 166 Iowa 651, 147 N.W. 872, 873. One empowered to transact all business of principal at any particular time or any particular place, a general manager. Abuc Trading & Sales Corporation v. Jennings, 151 Md. 392, 135 A. 166, 173. An agent to manage buildings and tease and collect the rents, Daniel v. Pappas, C.C.A.Okl., 16 F.2d 880, 883. An agent empowered to enter ínto contracts without consult-ing insurer, notwithstanding restriction of his territory, London & Lancashire Ins. Co. v. McWilliams, 215 Ala. 481, 110 So. 909, 910.
Local agent. One appointed to act as the representativa of a corporation and transact its business generally (or business of a particular character) at a given place or within a defined district. See Frick Co. v. Wright, 23 Tex. Civ.App. 340, 55 S.W. 608; Moore v. Freeman’s Nat. Bank, 92 N.C. 594.
Managing agent. A person who is Invested with general power, involving the exercise of judgment and discretion, as distinguished from an ordinary agent or employee, who acts in an Inferior capacity, and under the direction and control of superior authority, both in regard to the extent of the work and the manner of executing the same. Redd-ington v. Mariposa Land & Min. Co., 19 Hun, N.Y., 405; Taylor v. Granite State Prov. Ass’n, 32 N.C. 992, 136 N.Y. 343, 32 Am.St.Rep. 749. One who has exclusive supervision and control of some department of a corporation’s busi-ness, the management of which requires of such person the exercise of independent judgment and discretion, and the exercise of such authority that it may be fairly daid that service of summons upon him will result in notice to the corporation. Federal Betterment Co. v. Reeves, 73 Kan. 107, 84 P. 560, 4 L.R.A.,N.S., 460; Hatinen v. Payne, 150 Minn. 344. 185 N.W. 386, 387. As used in sec-tion 4274, Wilson’s Statutes of Oklahoma 1903, Ann., an agent whose agency extends to all the transactions of the corporation within the state; one who has or is engaged in the management of the business of the corporation, in distinction from the management of a local or particular branch or department of said business. Waters Pierce Oil Co. v. Foster, 52 Okl. 412, 153 P. 169, 171.
Mercantile agents. Agents employed for the sale of goods or merchandise are called "mercantile agents," and are of two principal classes,—brokers and factors (q. v.); a factor is sometimes callad a "commission agent," or "commission merchant." Russ. Merc. Ag. 1.
Practica of the House of Lords and Privy Council. In appeals, solicitors and other persons admitted to practice In those courts in a similar capacity to that of solicitors in ordinary courts, are technlcally called "agents." Macph. Priv. Coun. 65.
Private agent. An agent acting for an individual in bis prívate affairs; as distinguished from a public agent, who represents the government in some administrative capac-ity.
Public agent. An agent of the public, the state, or the government; a person appointed to act for the public in some matter pertaining to the administration of govern-ment or the public business. See Story, Ag. § 302; White-side v. United States, 93 U.S. 254, 23 L.Ed. 882.
Real-estate agent. Any person whose business it is to seil, or offer for sale, real estate for others, or to rent houses, stores, or other buildings, or real estate, or to col-lect rent for others. Act July 13, 1866, c. 184, § 9, par. 25; 14 St. at Larga, 118. Carstens v. McReavy, 1 Wash.St. 359, 25 P. 471.
A special agent is orle employed to conduct a particular transaction or piece of business for his principal or author-izad to perform a specified act. 1-Iinkson v. Kansas City Life Ins. Co., 93 Or. 473, 183 P. 24, 29; Pettijohn v. St. Paul Fire & Marine Ins. Co., 100 Kan. 482, 164 P. 1096, 1097; Hoffman v. Marano, 71 Pa.Super.Ct. 26, 28.
AGENTES ET CONSENTIENTES PARI PENA PLECTENTUR. Acting and consenting parties are hable to the same punishment. 5 Coke, 80.
AGER. Lat. A field; land generally. A portion of land inclosed by definite boundaries. Munici-pality No. 2 v. Orleans Cotton Press, 18 La. 167, 36 Am.Dec. 624. In old English law, an acre (q. v.). Spelman.
AGGER. Lat. In the civil law, a dam, bank or mound. Cod. 9, 38; Townsh.P1. 48.
AGGRAVATED ASSAULT. The term has no tech-nical and definite common law meaning. In re Burns, C.C.Ark., 113 F. 987; People v. Ochotski, 115 Mich. 601, 73 N.W. 889. The term is one which is employed to describe an assault which has, in addition to the mere intent to commit it, another object which is also criminal, Brimhall v. State, 31 Ariz. 522, 255 P. 165, 53 A.L.R. 231; or to in-elude all those species of assault which, for vari-ous reasons, have come to be regarded as more heinous than common assault, State v. Jones, 133 S.C. 167, 130 S.E. 747; or which have been made the subject of special legislativa provisions, Daf-fan v. State, Tex.Cr.App., 21 S.W.2d 301 and Nje-cick v. State, 178 Wis. 94, 189 N.W. 147.
An assault where the means or instrument used to accomplish the injury is highly dangerous or where assall-ant has some ulterior and malicious motive in commating assault other than a mere desire to punish injured person. Strickbine v. State, 201 Ark. 1031, 148 S.W.2d 180, 181, 182; when committed with a deadly weapon under circum-stances not amounting to an intent to murder, Myers v. State, 72 Tex.Cr.R. 630, 163 S.W. 432; or when the instru-ment or means used is such as inflicts disgrace upon the person assaulted, Cirul v. State, 83 Tex.Cr.R. 8, 200 S.W. 1088; Scott v. State, 73 Tex.Cr.R. 622, 166 S.W. 729, 730 (indecent and improper fondling of the person). In Ari-zona, aggravated assault is different from simple assault on]y by infliction of serious bodily injury, Brirnhall v. State, 31 Ariz. 522, 255 P. 165, 166, 53 A.L.R. 231,
AGGRAVATING. Passenger ejected from plane. Delta Air Corporation v. Porter, 70 Ga.App. 152, 27 S.E.2d 758, 762.
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AGGRAVATION. Any circumstance attending the commission of a crime or tort which increases its guilt or enormity or adds to its injurious consequences, but which is aboye and beyond the essential constituents of the crime or tort itself.
Matter of aggravation, correctly understood, does not consist in acts of the same kind and description as those constituting the gist of the action, but in something done by the defendant, on the occasion of comrnitting the tres-pass, which is, to some extent, of a different legal char-acter from the principal act complained of. Hathaway v. Rice, 19 Vt. 107. So on an indIctment for murder the pris-oner may be convicted of manslaughter, for the averment of manee aforethought is merely matter of aggravation. Co.Litt. 282 a.
In pleading, the introduction of matter into the declaration which tends to increase the amount of damages, but does not affect the right of action itself. Steph.Pl. 257; 12 Mod. 597.
AGGRAVATION OF THE DISABILITY. Refers to the course or progress of the workman’s condi-tion resulting from the specific injury for which an award or arrangement of compensation has been made. Keefer v. State Industrial Accident Commission, 171 Or. 405, 135 P.2d 806, 809.
AGGREGATE. Entire number, sum, mass, or quantity of something; amount; complete whole, and one provision under will may be the aggre-gate if there are no more units to fall into that class. In re Curley’s Will, 151 Misc. 664, 272 N. Y.S. 489. Composed of several; consisting of many persons united together; a combined whole. 1 Bl.Comm. 469.
AGGREGATE CORPORATION. See Corporation.
AGGREGATES. Name for materials consisting largely of rock, gravel and sand used for construc-tion and surf acing of highways or, as a compo-nent part, in forming concrete for such construc-tion. Pioneer Gravel Equipment Mfg. Co. v. Dia-mond Iron Works, C.C.A.Minn., 72 F.2d 161.
AGGREGATIO MENTIUM. The meeting of minds. The moment when a contract is com-plete. A supposed derivation of the word "agree-ment," q. v.
AGGREGATION. In law pf patents, it means that the elements of a claimed combination are 1 incapable of co-operation to produce a unitary re-sult, and in its true sense does not need prior art patents to support it. National Popsicle Corpo-ration v. Harvey, D.C.Pa., 6 F.Supp. 784, 786.
it does not Imply mechanical interaction of parts, but only union of 011 elements of invention to realize single purpose. Simplex Piston Ring Co. of America v. Horton-Gallo-Creamer Co., C.C.A.Conn., 61. F.2d 748, 750. A com-bination which merely brines together two or more func-tions to be availed of independently of each other does not
represent "invention" but constitutes mere "aggregation." Hemming v. S. S. Kresge Co., D.C.Conn., 24 F.Supp. 981,. 983. The assembly of old elements, in a device in which
each performs the same function in the same way as it did when used alone, without mutuality of action, interaction,
or co-operation, is mere "aggregation" not involving inven-tion. In re Smith, 57 App.D.C. 204, 19 F.2d 678, 679.
AGGRESSOR. One who first employs hostile force. Penn v. Henderson, 174 Or. 1, 146 P.2d 760, 766. The party who first offers violence or
offense. He who begins a quarrel or dispute, el ther by threatening or striking another. See Wil-kie v. State, 33 Okl.Cr. 225, 242 P. 1057, 1059.
AGGRIEVED. Having suffered loss or injury; damnified; injured.
AGGRIEVED PARTY. One whose legal right is invaded by an act complained of, or whose pe-cuniary interest is directly affected by a decree or judgment. Glos v. People, 259 Ill. 332, 102 N.E. 763, 766, Ann.Cas.1914C, 119. See next topic. One whose right of property may be established or divested. McFarland v. Pierce, 151 Ind. 546, 45 N.E. 706. The word "aggrieved" refers .to a sub-stantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation. Roullard v. McSoley, 54 R.I. 232, 172 A. 326, 327. Injured in a legal sense. In re Donnelly’s Estate, 55 S.D. 426, 226 N.W. 563, 565.
Adoption, Appeal of Cummings, 126 Me. 111, 136 A. 662, 663; disbarment, State v. Hunter, 152 Tenn. 233, 276 S.W. 639, 640; bar association, State v. Huddleston, 173 Ark. 686, 293 S.W. 353, 358; contra, disciplinary proceedings; In re Dolphin, 240 N.Y. 89, 147 N.E. 538, 539; lunacy inquIsi-tion, Commonwealth v. Davldson, 269 Pa. 218, 112 A. 115. One ‘against whom error has been commltted, Kinealy v. Macklin, 67 Mo. 95. Or one against whom an appealable order or judgment has been entered. Ely v. Frisbie, 17 Cal. 260. Any party having an interest recognized by law in the subject-matter, which interest is injuriously affected by judgment. Hornbeck v. Richards, 80 Mont. 27, 257 P. 1025, 1026. A complainant who has received less than the relief demanded, or a defendant who has not been accorded the full amount of his set-off or counterclaim. Blanchard v. Neill, 83 N.J.Eq. 446, 91 A. 811. See, also, Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080, 1081. One under necessity of answering or replying to irrelevant and redundant matter in a pleading. Shea v. Kiely, Sup., 167 N.Y.S. 570, 572.
AGILD. In Saxon law, free from penalty, not subject to the payment of gild, or weregild; that is, the customary fine or pecuniary compensation for an offense. Spelman; Cowell.
AGILER. In Saxon law, an observer or informer.
AGILLARIUS. L. Lat. In old English law, a hayward, herdward, or keeper of the herd of cat-tle in a common field. Cowell.
AGIO. In commercial law, a term used to ex-press the difference in point of value between metallic and paper money, or between one sort of metallic money and another. McCul.Dict.
An Italian word for accommodation.
AGIOTAGE. A speculation on the rise and fall of the public debt of states, or the public funds. The speculator is called "agioteur."
AGIST. In ancient law it meant to take in and give feed to the cattle of strangers in the king’s forest, and to collect the money due for the same to the king’s use. Spelman; Cowell.
In modern law it means to take in cattle to feed, or pasture, at a certain rate of compensation. Bank of Tehama County v. Federal Realty Co., 2 Ca1.2d 333, 40 P.2d 507, 509. See Agistment.
AGISTATIO
AGISTATIO ANIMALIUM IN FORESTA. The drift or numbering of cattle in the forest.
AGISTER. See Agistor.
AGISTERS, or GIST TAKERS. Officers appoint-ed to look after cattle, etc. See Williams, Com-mon, 232.
AGISTMENT. The taking and feeding of other men’s cattle in the king’s forest, or on one’s own land, at a certain rate. Bank of Tehama County v. Federal Realty Co., 2 Ca1.2d 333, 40 P.2d 507, 509. Also the profit or recompense for such pas-turing of cattle. Williams v. Miller, 68 Cal. 290, 9 Pac. 166. A species of bailment. Patchen-Wilkes Stock Farm Co. v. Walton, 166 Ky. 705, 179 S.W. 823.
In canon law it is a composition or mean rate at which some right or due might be reckoned.
There is also agistment of sea-banks, where lands are charged with a tribute to keep out the sea; and terne agistatce are lands whose owners must keep up the sea-banks. Holthouse.
Tithe of Agistment was a small tithe paid to the rector or vicar on cattle or other produce of grass lands. It was paid by the occupier of the land and not by the person who put in his cattle to graze. Rawle, Exmoor 31.
AGISTOR. One who takes in horses or other ani-mals to pasture at certain rates. Story, Bailm. § 443; Cox v. Chase, 99 Kan. 740, 163 P. 184, 186. An officer who had the charge of cattle pastured for a certain stipulated sum in the king’s forest and who collected the money paid for them.
AGITATOR. One who stirs up; excites; ruffies; perturbs. One who incessant advocates a social change.
Labor agitator. One actively engaged in promoting the interests of the laboring men. The term does not imply the use of unlawful or improper means. Wabash R. Co. v. Young, 69 N.E. 1003, 1005, 1006, 162 Ind. 102, 4 L.R.A., N.S., 1091.
Seditious agitator. A disturber of the public peace, a subverter of just laws, and a bad citizen. Wilkes v. Shields, 64 N.W. 921, 62 Minn. 426, 427.
AGNATES. In the law of descents, relations by the father, or on the father’s side. This word is used in the Scotch law, and by some writers as an English word, cqrresponding with the Latin agnati, (q. v.) Ersk.Inst. b. 1, tit. 7, § 4.
AGNATI: In Roman law, the term included all the cognates who trace their connection exclusive-ly through males.
A table of cognates is formed by taking each lineal ancestor in turn and including all his descendants of both sexes In the tabular view. If, then, in tracing the various branches of such a genealogical table or tree, we stop whenever we come to the name of a female, and pursue that particular branch or ramification no further, all who remain after the descendants of women have been excluded are agnates, and their connection together is agnatic rela-tionship. Maine, Anc. Law, 142.
All persons are agnatically connected together who are under the same patria potestas, or who have been under it, or who might have been under it if their lineal ancestor had lived long enough to exercise his empire. Maine, Anc. Law, 144.
The agnate family consisted of all persons living at the same time, who would have been subject to the patras potestas of a common ancestor, lf his lile had been con-tinued to their time. Radl.Rom.Law, 131.
Cognates were all persons who could trace their blood to a single ancestor or ancestress, and agnates were those cognates who traced their connection exclusively through males. Maine, Anc. Law. Between agnati and cognati there is this difference: that, under the name of agnati, cognati are included, but noté converso; for instante, a father’s brother, that is, a paternal uncle, is both agnatus and cognatus, but a mother’s brother, that Is, a maternal uncle, is a cognatus but not agnatus. (llig. 38, 7, 5, pr.) Burrill.
AGNATIC. [From agnati, q. v.1 Derived from or through males. 2 Bl.Comm. 236.
AGNATIO. In the civil law, relationship on the fathers’ side; the relationship of agnati; agna-tion. Agnatio a patre est. Inst. 3, 5, 4; Id. 3, 6, 6.
AGNATION. Kinship by the father’s side. See Agnates; Agnati.
AGNOMEN. Lat. An additional name or title; a nickname. A name or title which a man gets by some action or peculiarity; the last of the four names sometimes given a Roman. Thus, Scipio Africanus, (the African,) from his African vic-tories. Ainsworth; Calvinus, Lex. See Nomen.
AGNOMINATION. A surname; an additional name or title; agnomen.
AGNUS DEL Lat. Lamb of God. A piece of white wax, in a fíat, oval form, like a small cake, stamped with the figure of a lamb, and consecrat-ed by the pope. Cowell.
AGONY. Violent physical pain or mental dis-tress. City of Chicago v. McLean, 133 III. 148, 24 N.E. 527, 8 L.R.A. 765.
AGRAPHIA. See Aphasia.
AGRARIAN. Relating to land, or to a division or distribution of land; as an agrarian law.
AGRARIAN LAWS. In Roman law, laws for the distribution among the people, by public author-ity, of the lands constituting the public domain, usually territory conquered from an enemy.
In common parlante the term is frequently ap-plied to laws which have for their object the more equal division or distribution of landed property; laws for subdividing large properties and Mercas-ing the number of landholders.
AGRARIUM. A tax upon or tribute payable out of land.
AGREAMENTUM. In old English law, agree-ment; an agreement. Spelman.
AGREE. To concur; come into harmony; give mutual assent; unite in mental action; exchange promises; make an agreement; arrange; to settle. Mickleson v. Gypsy Oil Co., 110 Okl. 117, 238 P. 194, 198. Consent. Smith v. Jones, 185 Ga. 236, 194 S.E. 556, 560. Harmonize or reconcile. "You will agree your books." 8 Coke, 67. Concur or acquiesce in; approve or adopt. Agreed, agreed
to, are frequently used in the books, (like accord,) to show the concurrente or harmony of cases. Agreed per curiam is a common expression. Usually implies some contractual undertaking. In re Gray’s Estate, 160 Misc. 710, 290 N.Y.S. 603, 605. To grant or covenant, as when a grantor agrees that no building shall be erected on an ad-joining lot; Hogan v. Barry, 143 Mass. 538, 10 N. E. 253; or a mortgagor agrees to cause all taxes to be paid; Mackay v. Truchon, 171 Mo.App. 42, 153 S.W. 502, 503.
AGRÉÉ. In French law, a person authorized to represent a litigant bef ore the Tribunals of Com-merce. If such person be a lawyer, he is called an avocat-agréé. Coxe, Manual of French Law.
AGREEANCE. In Scotch law, agreement; an agreement or contract.
AGREED. Settled or established by agreement.
This word In a deed creates a covenant.
It is a technical term, synonymous with "contracted," McKisick v. McKisick, Meigs Tenn. 433. It means, ex vi termini, that it is the agreement of both parties. Aikin v. Albany, V. & C. R. Co., 26 Barb.N.Y. 298.
AGREED CASE. Stipulations signed by litigants’ attorneys, constituted an "agreed case". In re Davis Bros. Stone Co., 245 Wis. 130, 13 N.W.2d 512, 515.
Evidence presented by stipulation that stated facts con-stituted entire evidence is not an "agreed case". Struble-Werneke Motor Co. v. Metropolitan Securities Corporation, 93 Ind.App. 416, 178 N.E. 460, 462. Nor is an agreed state-ment of facts on which a case is submitted in lieu of evi-dence. Byers v. Essex Inv. Co., 281 Mo. 375, 219 S.W. 570, 571; Reddick v. Board of Com’rs of Pulaski County, 14 Ind.App. 598, 41 N.E. 834.
AGREED ORDER. The only difference between an agreed order and one which is made in the due course of the proceedings in an action is that in the one case it is agreed to, and in the other it is made as authorized by law. Claflin v. Gibson, 21 Ky.Law Rep. 337, 51 S.W. 439.
AGREED STATEMENT OF FACTS. A statement of facts, agreed on by the parties as true and correct, to be submitted to a court for a ruling on the law of the case. United States Trust Co. v. New Mexico, 183 U.S. 535, 22 Sup.Ct. 172, 46 L.Ed. 315. See Case Stated.
Where testimony was contradictory, stipulation relating to testimony did not constitute an "agreed state of facts". McPherson v. State Industrial Accident Commission, 169 Or. 190, 127 P.2d 344, 346.
AGREEMENT. A coming or knitting together of minds; a coming together in opinion or determi-nation; the coming together in accord of two minds on a given proposition; in law a concord of understanding and intention between two or more parties with respect to the effect upon their relative rights and duties, of certain past or fu-ture facts or performances; the consent of two or more persons concurring respecting the transmis-sion of some property, right, or benefits, with the view of contracting an obligation, a mutual ob-ligation. Bac.Abr.; Rocha v. Hulen, 6 Cal.App.2d 245, 44 P.2d 478, 482.
The act of two or more persons, who unite in expressing a mutual and common purpose, with the view of altering their rights and obligations. The union of two or more minds in a thing done or to be done; a mutual assent to do a thing. Com. Dig. "Agreement," A 1. See Aggregatio Mentium. Carter v. Prairie Oil & Gas Co., 58 Okl. 365, 160 P. 319, 322. A compact between parties who are thereby subjected to the obligatíon or to whom the contemplated right is thereby secured. People v. Mills, 160 Misc. 730, 290 N.Y.S. 48, 52.
Although often used as synonymous with "contract," Douglass v. W. L. Williams Art Co., 143 Ga. 846, 85 S.E. 993, it is a wider term than "contract" (Anson, Cont. 4.) An agreement might not be a contract, because not fulfill-ing some requirement. And each of a series of mutual stipulations or constituent clauses in a contract might be denominated an "agreement." The meaning of the con-tracting parties is their agreement. Whitney v. Wyman, 101 U.S. 396, 25 L.Ed. 1050. "Agreement" is seldom applied to specialties. Pars.Cont. 6.
"Agreement" is not synonymous with "promise" or "undertaking." It signifies a mutual contract, on consid-eration. Andrews v. Pontue, 24 Wend.N.Y. 285; Wain v. Wariters, 5 East, 10; wherein parties must have a distlnct intention common to both, and without doubt or difference. Blake v. Mosher, 11 Cal.App.2d 532, 54 P.2d 492, 494.
The writing or instrument which is evidence of an agreement.
Classification
Conditional agreements, the operation and effect of which depend upon the existente of a supposed state of facts, or the performance of a condition, or the happening of a contingency.
Executed agreements, which have reference to past events, or which are at once closed and where nothing fur-ther remains to be done by the parties.
Executory agreements are such as are to be performed in the future. They are commonly preliminary to other more formal or Important contracts or deeds, and are usu-ally evidenced by memoranda, parol promises, etc.
Express agreements are those in which the terms and stipulations are specifIcally declared and avowed by the parties at the time of making the agreement.
Implied agreement. (1) Implied in fact. One Inferred from the acts or conduct of the parties, instead of being expressed by them in written or spoken words. Baltimore Mail S. S. Co. v. U. S., C.C.A.Md., 76 F.2d 582, 585. (2) Implied in law; more aptly termed a constructiva or quasi contract. One where, by fiction of law, a promise is imputed to perform a legal duty, as to repay money obtained by fraud or duress. Baltimore Mail S. S. Co. v. U. S., C.C.A.Md., 76 F.2d 582, 585. One infcrred by the law where the conduct of the parties with reference to the subject-matter is such as to induce the belief that they intended to do that which their acts indicate they have done. Baltimore & O. R. Co. v. U. S., 261 U.S. 592, 43 S.Ct. 425, 67 L.Ed. 816; Cuneo v. De Cuneo, 24 Tex.Civ.App. 436, 59 S.W. 284.
Parol agreements. Such as are either by word of mouth or are committed to writing, but are not under seal. The common law draws only one great line, between things under seal and not under seal. Wharton.
In agreement means in conformity, or harmony with. Brown Real Estate Co. v. Lancaster Coun-ty, 110 Neb. 665, 194 N.W. 897, 898.
AGREEMENT FOR INSURANCE. An agree-ment often made in short terms preliminary to the filling out and delivery of a policy with spe-cific stipulations.
AGREEMENT NOT TO BE PERFORMED WITH-IN A YEAR. An agreement that necessarily must require more than year for performance. Marble
AGREEMENT
v. Town of Clinton, Mass., 9 N.E.2d 522, 524, 111 A.L.R. 1101. Incapable of performance within one year. Street v. Maddux, Marshall, Moss & Mallory, 58 App.D.C. 42, 24 F.2d 617, 619.
AGREEMENT OF SALE; AGREEMENT TO SELL. An agreement of sale may imply not merely an obligation to sell, but an obligation on the part of the other party to purchase (cf. Loud v. St. Louis Union Trust Co., 313 Mo. 552, 281 S.W. 744, 755) while an agreement to sell is sim-ply an obligation on the part of the vendor or promisor to complete his promise of sale; Treat v. White, 181 U.S. 264, 21 Sup.Ct. 611, 45 L.Ed. 853. It is a contract to be performed in future, and, if fulfilled, results in a sale; it is prelimi-nary to sale and is not the sale. Callender v. Crossfield Oil Syndicate, 84 Mont. 263, 275 P. 273, 276.
AGREEMENT TO SELL LAND. A contract to be performed in future which if fulfilled results in sale. In re Frayser’s Estate, 401 Ill. 364, 82 N.E. 2d 633, 638.
AGREER. Fr. In French marine law, to rig or equip a vessel. Ord. Mar. liv. 1, tit. 2, art. 1.
AGREZ. Fr. In French marine law, the rig-ging or tackle of a vessel. Ord. Mar. liv. 1, tit. 2, art. 1; Id. tit. 11, art. 2; Id. liv. 3, tit. 1, art. 11.
AGRI. Arable lands in common fields.
AGRI LIMITATI.
In Rornan law, lands belonging to the state by right of conquest,, and granted or sold in plots. Sandars, Just.Inst., 5th Ed., 93.
In modem civil law, lands whose boundaries are strictly limited by the lines of government surveys. Hardin v. Jordan, 140 U.S. 371, 11 Sup. Ct. 808, 35 L.Ed. 428.
AGRICULTURAL. Pertaining to, or dea]ing with, agriculture; also, characterized by or engaged in farming as the leading pursuit. Oak Woods Cem-etery Ass’n v. Murphy, 383 Ill. 301, 50 N.E.2d 582, 587.
AGRICULTURAL CHEMISTRY. A study of products of the soil, especially foods, their nutri-tive value, their intensive production, study of composition of soil, chemical methods of fertiliza-tion, prevention or amelioration of plant diseases, extinction of insects and other detriments to agri-culture, and in general study of animal and plant life with relation to the science of chemistry. In re Frasch’s Estate, 125 Misc.Rep. 381, 211 N.Y.S. 635, 638.
AGRICULTURAL COMMODITIES. Generaily synonymous with agricultural or farm products, and not including agricultural implements, Bowles v. Rock, D.C.Neb., 55 F.Supp. 865, 868; or com-mercial fertilizer and ground and crushed lime-stone, Stiver v. Holley, 215 Ind. 9, 17 N.E.2d 831, 832.
AGRICULTURAL EMPLOYMENT. Farm labor synonymous, and includes all farm work and work
incidental thereto. Smythe v. Phcenix, 63 Idaho 585, 123 P.2d 1010, 1012.
AGRICULTURAL HOLDING. Land cultivated for profit in some way. Within the meaning of the English Agricultural Holdings act of 1883, the term will not include natural grass lands. Such lands are pastoral holdings. 32 S.J. 630.
AGRICULTURAL LABOR. Services performed on farm, for owner or tenant. California Em-ployment Commission v. Butte County Rice Grow-ers Ass’n, Cal., 154 P.2d 892, 894. Broader in meaning than farming or farm labor and includes one engaged in horticulture. St. Louis Rose Co. v. Unemployment Compensation Commission, 348 Mo. 1153, 159 S.W.2d 249, 250, and maintenance work and similar service in employer’s farm park-ing house. Latimer v. United States, D.C.Cal., 52 F.Supp. 228, 234, 235, 236, 237. The science and art of production of plants and animals useful to man. Murphy v. Mid-West Mushroom Co., 350 Mo. 658, 168 S.W.2d 75, 77, 78.
AGRICULTURAL LANDS. A term used merely to distinguish rural from urban or other prop-erties. Eisenzimmer v. Bell, 75 N.D. 733, 32 N.W. 2d 891, 893.
Land may be assessable as "agricultural land" though it be covered by native timber and underbrush, grass, and weeds. Milne v. McKinnon, 32 S.D. 627, 144 N.W. 117, 118. The term is synonymous with land "agricultural in char-acter." State v. Stewart, 58 Mont. 1, 190 P. 129, 131.
AGRICULTURAL LIEN. A statutory lien in some states to secure money or supplies advanced to an agriculturist to be expended or employed in the making of a crop and attaching to that crop only. Jones-Phillips Co. v. McCormick, 174 N.C. 82, 93 S.E. 449, 452.
AGRICULTURAL PRODUCT. Things which have a situs of their production upon the farm and which are brought into condition for uses of society by labor of those engaged in agricul-tural pursuits as contradistinguished from manu-facturing or other industrial pursuits. In re Rodgers, Neb., 134 Neb. 832, 279 N.W. 800, 803.
That which is the direct result of husbandry and the cultivation of the soil. The product in its natural unmanu-factured condition. Getty v. Milling Co., 40 Kan. 281, 19 P. 617. It has been held not to include beef cattle; Davis
Co. v. City of Macon, 64 Ga. 128, 37 Am.Rep. 60; but to include forestry products; Northern Cedar Co. v. French, 131 Wash. 394, 230 P. 837, 846.
AGRICULTURAL PURSUITS. Every process and step taken and necessary to the completion of a finished farm product. Big Wood Canal Co. v. Unemployment Compensation Division of Indus-trial Accident Board, 61 Idaho 247, 100 P.2d 49, 51.
AGRICULTURAL SOCIETY. One for promoting agricultural interests, such as improvement of land, implements, and brands of cattle. Crete Milis v. Nebraska State Board of Agriculture, 132 Neb. 244, 271 N.W. 684, 688; or for giving agricul-tural fairs; Town of West Hartford v. Connecticut Fair Ass’n, 88 Conn. 627, 92 A. 432.
AGRICULTURAL WORKER. Tasks incidental to agricultural activities all are within the scope of the employment of an "agricultural worker." Melendez v. Johns, Ariz., 76 P.2d 1163, 1167.
AGRICULTURE. The art or science of cultivating the ground, including the harvesting of crops, and in a broad sense, the science or art of produc-tion of plants and animals useful to man, includ-ing in a variable degree, the preparation of these products for man’s use. In the broad sense, it in-eludes farming, horticulture, forestry, together with such subjects as butter, cheese, making sugar, etc. Sancho v. Bowie, C.C.A.Puerto Rico, 93 F.2d 323, 324.
The cultivation of soil for food products or any other useful or valuable growths of the field or garden; tillage, husbandry; also, by extension, farming, including any industry practicad by a cultivator of the soll in connection with such cultivation, as breeding and rearing of stock, dairying, etc. The science that treats of the cultivation of the soil. Stand. Dict.; State v. Stewart, 58 Mont. 1, 190 P. 129, 131.
"Agriculture" refers to the field or farm with all its wants, appointments, and products, as distinguished from "horticulture," which refers to the garden, with its less important though varied products. Dillard v. Webb, 55 Ala. 468.
AGUSADURA. In ancient customs, a fee, due from the vassals to their lord for sharpening their plowing tackle.
AHTEID. In old European law, a kind of oath among the Bavarians. Spelman. In Saxon law. One bound by oath, q. d. "oathtied." From ath, oath, and tied. Id.
AID. To support, help, assist, or strengthen. Hines v. State, 16 Ga.App. 411, 85 S.E. 452, 454. Act in cooperation with. Cornett v. Common-wealth, 198 Ky. 236, 248 S.W. 540, 542.
Supplement the efforts of another. Anderson v. Board of Medical Examiners, 117 Cal.App. 113, 3 P.2d 344, 346.
A person "aids" when being present at the time and place he does some act to render aid to the actual perpe-tration of the crime, though he takes no direct share in its commission. State v. Johnson, 220 N.C. 773, 18 S.E.2d 358, 360.
This word must be distinguished from its synonym "encourage," the difference being that the former connotes active support and assistance. Although it may not import necessary criminality in the act furthered. See Abet.
AID AND ABET. Help, assist, or facilitate the commission of a crime, promote the accomplish-ment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission. State v. Lord, 42 N.M. 638, 84 P.2d 80, 86.
Implies knowledge. Winning v. Board of Dental Exam-iners, 114 Cal.App. 658, 300 P. 866, 868.
At common law it consisted in being present at the time and place, and doing some act to render aid to the actual perpetrator of the crime, though without taking a direct share in lts commission. See 4 Bl.Comm. 34; State v. Tally, 102 Ala. 25, 15 So. 722.
It comprehends all assistance rendered by words, acts, encouragement, support, or presence, actual or construc-tive, to render assistance if necessary. Johnson v. State, 21 Ala.App. 565, 110 So, 55; State v. Davis, 191 Iowa, 720, 183 N.W. 314, 316. But it is not sufficient that there is a mere
negative acquiescence not in any way made known to the principal malefactor. People v. Barnes, 311 III. 559, 143 N.E. 445, 447. See Accessory; Abettor; Aider and Abet-tor.
AID AND ASSIST. The words "aided and as-sisted," as used in the statute prohibiting the sale of intoxicating liquors, as regards the condemna-tion or confiscation of vehicles, implies either knowledge on the part of the owner that the vehicle was being used for unlawful transporta-tion, or such negligente or want of tare as to charge him with such knowledge or notice. In re Gattina, 203 Ala. 517, 84 So. 760.
AID AND COMFORT. Help; support; assistance; counsel; encouragement.
As an element in the crime of treason (see Constitution of the United States, art. 3, § 3), the giving of "ald and comfort" to the enerny may consist in a mere attempt. It is not essential to constitute the giving of aid and com-fort that the enterprise commenced should be successful and actually render assistance. Young v. United States, 97 U.S. 39, 62, 24 L.Ed. 992. An act which intentionally strengthens or tends to strengthen enemies of the United States, or which weakens or tends to weaken power of the United States to resist and attack such enemies. United States v. Haupt, D.C.I11., 47 F.Supp. 836, 839. Any inten-tional act furthering hostile designs of enemies of the United States. United States v. Haupt, D.C.I11., 47 F.Supp. 836, 839.
AID BOND. See Bond.
AID OF THE RING. The king’s tenant prays this, when rent is demanded of him by others.
AID PRAYER. In English practice, a proceeding formerly made use of, by way of petition in court, praying in aid of the tenant for life, etc., from the reversioner or remainderman, when the title to the inheritance was in question. It was a plea in suspension of the action. 3 Bl.Comm. 300.
AID SOCIETIES. See Benefit Societies.
AIDER. One who is actually or constructively present at the commission of the offense and is a "principal". State v. Bachmeyer, 247 Wis. 294, 19 N.W.2d 261, 263.
Mere proof of a defendant’s presence at the time of the commission of a criminal act is not sulficient to render him an "aider". Gentry v. State, 65 Ga.App. 100, 15 S.E. 2d 464, 465.
AIDER AND ABETTOR. One who assists an-other in the accomplishment of a common design or purpose; he must be aware of, and consent to, such design or purpose. Peats v. State, 213 Ind. 560, 12 N.E.2d 270, 277.
One who advises, counsels, procures, or encourages another to commit a crime, himself being guilty of some overt act or advocacy or encouragement of his principal, actually or constructively present when crime is commtt-ted, and participating in commission thereof by some act, deed, word, or gestare, Turner v. Commonwealth, 268 Ky. 311, 104 S.W.2d 1085, and sharing the criminal intent of the principal. State v. Reedy, 97 W.Va. 549, 127 S.E. 24, 28. But one who incites or instigates the commission of a felony when he is neithcr actually nor constructively pres-ent is an "aider, abettor, or procurer" within the meaning, of a statute. Neal v. State, 104 Neb. 56, 175 N.W. 669, 670.
AIDER BY VERDICT. The healing or remission, by a verdict rendered, of a defect or error in pleading which might have been objected to before verdict.
AIDER
The presumption of the proof of all facts nec-cessary to the verdict as it stands, coming to the aid of a record in which such facts are not distinct-ly alleged.
AIDING AN ESCAPE. Any overt act, intended and useful to assist attempted or completed de-parture of prisoner from lawful custody before his discharge by due process of law. State v. Navarro, 131 Me. 345, 163 A. 103, 104.
AIDS. In feudal law, originally mere benevo-lences granted by a tenant to his lord, in times of distress; but at length the lords claimed them as of right.
They were principally three: (1) To ransom the lord’s person, if taken prisoner; (2) to make the lord’s eldest son and heir apparent a knight; (3) to give a sultable portion to the lord’s eldest daughter on her marriage. Abolished by 12 Car. II, c. 24.
Also, extraordinary grants to the crown by the house of commons, which were the origin of the modern system of taxation. 2 Bl.Comm. 63, 64.
A reasonable aid was a duty claimed by the lord of the fee of his tenants, holding by knight service, to marry his daughter, etc. Cowell.
AIEL (spelled also AyeZ, Aile, Ayle, and Aieul). L. Fr. A grandfather.
A writ which lieth where the grandfather was seized in his demesne as of fee of any lands or tenements in fee simple the day that he died, and a stranger abateth or entereth the same day and dispossesseth the heir. Fitzh.Nat.Brev. 222; Termes de la Ley; 3 Bla.Com. 186; 2 Poll. & Maitl. 57. See Abatement of Freehold.
AIELESSE. A Norman French term signifying "grandmother." Kelham.
AILE. A corruption of the French word aieul, grandfather. See Aiel.
AILMENT. Commonly means indisposition of body or mind, a slight illness. Mutual Life Ins. Co. of New York v. Burton, 167 Tenn. 606, 72 S. W.2d 778, 781.
But within meaning of an application for a benefit cer-tificate, It is something which substantially impairs the health of the applicant, materially weakens the vigor of his constitution, or seríously deranges bis vital functions, thereby excluding chronic rheumatism. National Ameri-cans v. Ritch, 121 Ark. 185, 180 S.W. 488, 489. And in life insurance application does not ínclude mere temporary indisposition, which, though requiring medical treatment, is readily remediable. Zogg v. Bankers’ Life Co. of Des Moines, Iowa, C.C.A.W.Va. 62 F.2d 575, 578. Nor passing discomfort. Washington Fidelity Nat. Ins. Co. v. Lacey, 45 Ohio App. 104, 186 N.E. 751, 754. Ho\vever, it covers disorders which could not properly be called diseases. Cromeens v. Sovereign Camp W. O. W., Mo.App., 247 S.W. 1033, 1034.
AIM A WEAPON. To point it intentionally. Ed-wards v. State, 28 Ga.App. 466, 111 S.E. 748. "Aim" denotes direction toward some minute point in an object, while "point" implies direction toward the whole object. Buchanan v. State, 25 Okl.Cr. 198, 219 P. 420, 423.
AINESSE. In French feudal law, the right or privilege of the eldest born; primogeniture; esnecy. Guyot, Inst.Feud. c. 17.
AIR. That Huid transparent substance which sur-rounds our globe. Bank v. Kennett, 101 Mo.App. 370, 74 S.W. 474.
AIR BASE. See Base.
AIR CONDITION. To render a room, building, office, hotel or the like reasonably comfortable by circulating air which is maintained at a prede-termined temperature by either warming or cool-ing it. Magee Laundry & Cleaners v. Harwell Appliance Co., 184 Miss. 435, 185 So. 571, 572.
AIR COURSES. As applied to the operation of coal mines, passages for conducting air. Ricardo v. Central Coal & Coke Co., 100 Kan. 95, 163 P. 641, 543. See Airway.
AIRCRAFT. Any contrivance used, or designed for navigation of or fiight in the air, except• a parachute or other contrivance designed for such navigation but used primarily as safety equip-ment. 49 U.S.C.A. §§ 171-184.
As defined in the Uniform Aeronautics Act, the term includes balloon, airplane, hydroplane and every other vehicle used for navigation through the air. See Aeronautics; Airship; Hydro-Aero-plane.
AIRE. In old Scotch law, the court of the justices itinerant, corresponding with the English eyre, (q. v.) Skene de Verb. Sign. voc. ‘ter.
AIRPLANE. See Aeronautics; Hydro-Aeroplane; Aircraft; Airship.
AIRPORT. Landing and taking off place for air planes. City of Mobile v. Lartigue, 23 Ala.App. 479, 127 So. 257, 260.
With íts beacons, landing fields, runways, and hangars, it is analogous to a barbar with its llghts, wharves, and docks; the one is the landing place and haven of ships that navigate the water, the other of those that navigate the air. Coleman v. City of Oakland, 110 Cal, App. 715, 295 P. 59, 61. And includes all land, buildings, structures or other Improvements, necessary or convenient in the estab-lishment and operation of an airport. Moore v. Gordon, Tex.Civ.App., 122 S.W.2d 239, 242.
Any locality either of water or land which is adapted for the landing and taking off of aircraft and which pro-vides facilities for shelter, supply, and repair of aircraft, or a place used regularly for receiving or discharging pas-sengers or cargo by air. 49 U.S.C.A. II 171-184. City of Wichita v. Clapp, 125 Kan, 100, 263 P. 12, 63 A.L.R. 478.
AIRSHIP. Under some statutes it includes every kind of vehicle or structure intended for use as a means of transporting passengers or goods, or both, in the air. As defined by the International Flying Convention of 1919, an airship means an aircraft using gas lighter than air as a means of support and having means of propulsion.
See Aeronautics; Aircraft; Hydro-Aeroplane.
AIRT AND PAIRT. In old Scotch criminal law, accessary; contriver and partner. 1 Pitc.Crim. Tr. pt. 1, p. 133; 3 How.State Tr. 601. Now writ-ten art and part, (q. v.)
AIRWAY. Applies to air routes for either air-planes or seaplanes and is a material or perma-nent way through the air laid out with precision
The presumption of the proof of all facts nec-cessary to the verdict as it stands, coming to the aid of a record in which such facts are not distinct-ly alleged.
AIDING AN ESCAPE. Any overt act, intended and useful to assist attempted or completed de-parture of prisoner from lawful custody before his discharge by due process of law. State v. Navarro, 131 Me. 345, 163 A. 103, 104.
AIDS. In feudal law, originally mere benevo-lences granted by a tenant to his lord, in times of distress; but at length the lords claimed them as of right.
They were principally three: (1) To ransom the lord’s person, if taken prisoner; (2) to make the lord’s eldest son and heir apparent a knight; (3) to give a sultable portion to the lord’s eldest daughter on her marriage. Abolished by 12 Car. II, c. 24.
Also, extraordinary grants to the crown by the house of commons, which were the origin of the modern system of taxation. 2 Bl.Comm. 63, 64.
A reasonable aid was a duty claimed by the lord of the fee of his tenants, holding by knight service, to marry his daughter, etc. Cowell.
AIEL (spelled also AyeZ, Aile, Ayle, and Aieul). L. Fr. A grandfather.
A writ which lieth where the grandfather was seized in his demesne as of fee of any lands or tenements in fee simple the day that he died, and a stranger abateth or entereth the same day and dispossesseth the heir. Fitzh.Nat.Brev. 222; Termes de la Ley; 3 Bla.Com. 186; 2 Poll. & Maitl. 57. See Abatement of Freehold.
AIELESSE. A Norman French term signifying "grandmother." Kelham.
AILE. A corruption of the French word aieul, grandfather. See Aiel.
AILMENT. Commonly means indisposition of body or mind, a slight illness. Mutual Life Ins. Co. of New York v. Burton, 167 Tenn. 606, 72 S. W.2d 778, 781.
But within meaning of an application for a benefit cer-tificate, It is something which substantially impairs the health of the applicant, materially weakens the vigor of his constitution, or seríously deranges bis vital functions, thereby excluding chronic rheumatism. National Ameri-cans v. Ritch, 121 Ark. 185, 180 S.W. 488, 489. And in life insurance application does not ínclude mere temporary indisposition, which, though requiring medical treatment, is readily remediable. Zogg v. Bankers’ Life Co. of Des Moines, Iowa, C.C.A.W.Va. 62 F.2d 575, 578. Nor passing discomfort. Washington Fidelity Nat. Ins. Co. v. Lacey, 45 Ohio App. 104, 186 N.E. 751, 754. Ho\vever, it covers disorders which could not properly be called diseases. Cromeens v. Sovereign Camp W. O. W., Mo.App., 247 S.W. 1033, 1034.
AIM A WEAPON. To point it intentionally. Ed-wards v. State, 28 Ga.App. 466, 111 S.E. 748. "Aim" denotes direction toward some minute point in an object, while "point" implies direction toward the whole object. Buchanan v. State, 25 Okl.Cr. 198, 219 P. 420, 423.
AINESSE. In French feudal law, the right or privilege of the eldest born; primogeniture; esnecy. Guyot, Inst.Feud. c. 17.
AIR. That Huid transparent substance which sur-rounds our globe. Bank v. Kennett, 101 Mo.App. 370, 74 S.W. 474.
AIR BASE. See Base.
AIR CONDITION. To render a room, building, office, hotel or the like reasonably comfortable by circulating air which is maintained at a prede-termined temperature by either warming or cool-ing it. Magee Laundry & Cleaners v. Harwell Appliance Co., 184 Miss. 435, 185 So. 571, 572.
AIR COURSES. As applied to the operation of coal mines, passages for conducting air. Ricardo v. Central Coal & Coke Co., 100 Kan. 95, 163 P. 641, 543. See Airway.
AIRCRAFT. Any contrivance used, or designed for navigation of or fiight in the air, except• a parachute or other contrivance designed for such navigation but used primarily as safety equip-ment. 49 U.S.C.A. §§ 171-184.
As defined in the Uniform Aeronautics Act, the term includes balloon, airplane, hydroplane and every other vehicle used for navigation through the air. See Aeronautics; Airship; Hydro-Aero-plane.
AIRE. In old Scotch law, the court of the justices itinerant, corresponding with the English eyre, (q. v.) Skene de Verb. Sign. voc. ‘ter.
AIRPLANE. See Aeronautics; Hydro-Aeroplane; Aircraft; Airship.
AIRPORT. Landing and taking off place for air planes. City of Mobile v. Lartigue, 23 Ala.App. 479, 127 So. 257, 260.
With íts beacons, landing fields, runways, and hangars, it is analogous to a barbar with its llghts, wharves, and docks; the one is the landing place and haven of ships that navigate the water, the other of those that navigate the air. Coleman v. City of Oakland, 110 Cal, App. 715, 295 P. 59, 61. And includes all land, buildings, structures or other Improvements, necessary or convenient in the estab-lishment and operation of an airport. Moore v. Gordon, Tex.Civ.App., 122 S.W.2d 239, 242.
Any locality either of water or land which is adapted for the landing and taking off of aircraft and which pro-vides facilities for shelter, supply, and repair of aircraft, or a place used regularly for receiving or discharging pas-sengers or cargo by air. 49 U.S.C.A. II 171-184. City of Wichita v. Clapp, 125 Kan, 100, 263 P. 12, 63 A.L.R. 478.
AIRSHIP. Under some statutes it includes every kind of vehicle or structure intended for use as a means of transporting passengers or goods, or both, in the air. As defined by the International Flying Convention of 1919, an airship means an aircraft using gas lighter than air as a means of support and having means of propulsion.
See Aeronautics; Aircraft; Hydro-Aeroplane.
AIRT AND PAIRT. In old Scotch criminal law, accessary; contriver and partner. 1 Pitc.Crim. Tr. pt. 1, p. 133; 3 How.State Tr. 601. Now writ-ten art and part, (q. v.)
AIRWAY. Applies to air routes for either air-planes or seaplanes and is a material or perma-nent way through the air laid out with precision
92
ALCOHOLISM
and care that an engineer adopts in choosing the course of and laying down a roadway. City of Wichita v. Clapp, 125 Kan. 100, 263 P. 12, 14, 63 A.L.R. 478.
In English law, a passage for the admission of air finto a mine. 24 & 25 Vict. c. 97, § 28. See Air Courses.
AISIAMENT1UM (spelled also Esamentum, Ais-mentum). In old English law, an easement. Spel-man.
AISNE or EIGNE. In old English law, the eldest or first born.
AJOURNMENT. In French law, the document pursuant to which an action or suit is commenced, equivalent to the writ of summons in England. Actions, however, are in some cases commenced by reguéte or petition. Arg.Fr.Merc.Law, 545.
AJUAR. In Spanish law, paraphernalia. The jewels and furniture which a wife brings in mar-riage.
AJUTAGE (spelled also Adjutage). A conical tube used in drawing water through an aperture, by the use of which the quantity of water drawn is much increased.
AKIN. In old English law. Of kin. "Next-a-kin." 7 Mod. 140.
AL. L. Fr. At the; to the. Al barre; at the bar. Al huís d’esglise; at the church door.
ALJE ECCLESI.X. The wings or side aisles of a church. Blount.
ALANERARIUS. A manager and keeper of dogs for the sport of hawking; from alanus, a dog known to the ancients. A falconer. Blount.
ALARM LIST. The list of persons liable to mili-tary watches, who were at the same time exempt from trainings and musters. See Prov.Laws 1775-76, c. 10, § 18; Const.Mass. c. 11, § 1, art. 10; Pub.St.Mass.1882, p. 1287.
ALBA FIRMA. In old English law, white rent; rent payable in silver or white money, as distin-guished from that which was anciently paid in corn or provisions, called black mail, or black rent; reditus nigri. Spelman; Reg.Orig. 319b.
ALBACEA. In Spanish law, an executor or admin-istrator; one who is charged with fulfilling and executing that which is directed by the testator in his testament or other last disposition. Emeric v. Alvarado, 64 Cal. 529, 2 Pac. 418, 433.
ALBANAGIUM. In old French law, the state of alienage; of being a foreigner or alien.
ALBANUS. In old French law, a stranger, alien, or foreigner.
ALBINATUS. In old French law, the state or condition of an alien or foreigner.
ALBINATUS JUS. In old French law, the droit d’aubaine in France, whereby the king, at an
alien’s death, was entruea to all his property, un-less he had peculiar exemption. Repealed in June, 1791.
ALBUM BREVE. A blank writ; a writ with a blank or omission in it.
ALBUS LIBER. The white book; an ancient ‘book containing a compilation of the law and customs of the city of London.
ALCABALA. In Spanish law, a duty of a certain per cent. paid to the treasury on the sale or ex-change of property.
ALCAIDE. Sp. Jailer, warden, governor of a fortress.
ALCALDE. The narre of a judicial officer in Spain, and in those countries which have received
their laws and institutions from Spain. His func-tions somewhat resembled those of mayor in small municipalities on the continent, or justice of the peace in England and most of the United States. Castillero v. U. S., 2 Black, 17, 194, 17 L.Ed. 360.
ALCOHOLIC BEVERAGE. The term is distin-guished from the term "intoxicating liquor," in that a beverage may be alcoholic in that it contains some alcohol, and yet not be intoxicating as de-fined in National Prohibition Act. Premier-Pabst Sales Co. v. McNutt, D.C.Ind., 17 F.Supp. 708, 714.
Beer. Liquor Control Commisslon v. McGillis, 91 Utah, 586, 65 P.2d 1136, 1141. Ethyl alco,iol, within tax statute. H. 0. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657, 660. It is immaterial whether the liquor is suitable or deslrable for beverage purposes, If it Is prohibited by law and is in fact used as a beverage. Powell v. State, 179 Md. 399, 18 A.2d 587, 590, 591. But it must be drinkable. McChrlsty v. State, 138 Tex.Cr.R. 26, 133 S.W.2d 976, 977.
ALCOHOLIC LIQUORS. "Alcoholic, spirituous and malt liquors" mean intoxicating liquors which can be used as a beverage, and which, when drunk to excess, will produce intoxication. Howard v. Acme Brewing Co., 143 Ga. 1, 83 S.E. 1096, 1097, Ann. Cas.1917A, 91; F. W. Woolworth Co. v. State, 72 Okl.Cr. 125, 113 P.2d 399, 403.
The term includes raw alcohol. C. J. Lincoln Co. v. State, 122 Ark. 204, 183 S.W. 173, 174. Beer, ale, or wine In Selective Service Act, § 12 (50 U.S.C.A. § 226 note). U. S.. v. Kinsel, D.C., 263 F. 141, 142. And lemon and vanilla extracto, made or used for beverage purposes, con-taining alcohol. Brandon v. State, 24 Ala.App. 289, 134 So. 890, 891. But not specially denatured alcohol. M. H. Mc-Carthy & Co. v. Doran, D.C.Mass., 43 F.2d 659, 661. See Intoxicating Liquor.
ALCOHOLISM. In medical jurisprudence, the pathological effect (as distinguished from physio-logical effect) of excessive indulgence in intoxi-cating liquors.
A morbid condition resulting from the Inordinate or excessive use of alcoholic beverages. Cochran v. Commis-sioner of Internal Revenue, C.C.A.4, 78 F.2d 176, 178.
It Is acute when Induced by excessive potations at one time or in the course of a single debauch. An attack of delirium tremens and alcoholic homicidal manía are exam-ples of thls form. It is chronic when resulting from the long-contlnued use of spirits in less quantities, as in the case of dipsomania.
ALCOVE
ALCOVE ROOM. An "alcove room," within Tene-ment House Law N. Y. § 65, is a room with an alcove. People on Complaint of Hickey v. White-low, Mag.Ct.N.Y., 166 N.Y.S. 141, 148.
ALDERMAN. A judicial or administrative magis-trate.
See Aldermannus.
Orlginally the word was synonymous with "elder" or -senator," but was also used to designate an earl, and even a king.
In American cities, one of a board of municipal officers next in order to the mayor. State v. Waterman, 95 Conn. 414, 111 A. 623, 624; Board of Lights and Waterworks v. Dobbs, 151 Ga. 53, 105 S.E. 611, 612. The aldermen are generally a legislative body, having limitad judicial pow-ers as a body, as in matters of internal pollee regulation, laying out and repairing streets, constructing sewers, and the like; though in many cities they hold separate courts, and have magisterial powers to a considerable extent.
In English law, an associate to the chief civil magistrate of a corporate town or city.
The word would seem to have been rather an appellation of honor, originally, than a distinguishing mark of office. Spelman Gloss.
ALDERMANNUS. L. Lat. An alderman.
ALDERMANNUS CIVITATIS VEL BURGI. Alder-man of a city or borough, from which the modern office of alderman has been derived. T. Raym. 435, 437.
ALDERMANNUS COMITATUS. The alderman of the county. According to Spelman, he held an office intermediate between that of an earl and a sheriff. According to other authorities, he was the same as the earl. 1 Bl.Comm. 116.
ALDERMANNUS HUNDREDI SEU WAPEN-TACHIL Alderman of a hundred or wapentake. Spelman.
ALDERMANNUS REGIS. Alderman of the king. So called, either because he received his appoint-ment from the king or because he gave the judg-ment of the king in the premises allotted to him.
ALDERMANNUS TOTIUS ANGLIX. Alderman of all England. An officer among the Anglo-Saxons, supposed by Spelman to be the same with the chief justiciary of England in later times. Spelman.
ALE-CONNER. In old English law, an officer appointed by the court-leet, sworn to look to the assise and goodness of ale and beer within the precincts of the leet. Kitch. Courts, 46; Whishaw. And to look to the assise of bread. Cowell.
This officer is still continued in name, though the duties are changed or given up; 1 Crabb, Real Prop. 501.
ALE-HOUSE. A place where ale is sold to be drunk on the premises where sold.
ALE SILVER. A rent or tribute paid annually to the lord mayor of London, by those who sell ale