Glossary of Legal Terms (2)

7/27/2019 Glossary of Legal Terms (2)

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GLOSSARY OF LEGAL TERMS.

The following are definitions of some words commonly encountered during thecourse of various proceedings.

abate To reduce something. For example, to abate a nuisance (e.g. noise) isto remove or reduce the nuisance without violence or unnecessarydamage. This is alternative to bringing a court action.

abduction The wrongful taking away of a person.

abet To aid in the commission of an offence. A person may be found guiltyof aiding and abetting although the principal is acquitted.

abrogate To repeal, cancel or annual.

abscond To go away secretly, to evade the jurisdiction of the court. Abscondingby a person released on bail is an offence.

absente reo The defendant being absent.

absolute Complete and unconditional.

access order An order made in a Magistrates court (Local Court) or the FamilyCourt which enables a parent without custody (q.v.) of a child of the

marriage to see the child at specified or mutually agreed times.accessory A person, not present at the commission of the offence, who helps a

law-breaker.

accretion Growth in size by addition or accumulation, often applied to thegradual accumulation of land from out of the sea.

accused This is a term used to describe a person who is alleged to havecommitted a criminal offence which can only be finally heard anddetermined by a Judge, either sitting alone, or with a jury; i.e. anindictable offence. The term is never used in proceedings in LocalCourts to describe persons accused of having committed criminaloffences. Such persons are called defendants.

acquit To find an accused not guilty after trial.

acquittal Discharge from prosecution upon a verdict of not guilty, or on a

successful plea of pardon.action A civil proceeding commenced by writ or in such other manner as may

be prescribed by rules of court.

action in rem An action in the Admiralty Court commenced by the arrest of the res,the ship.

adjective law (see procedural law)

adjourn To postpone; to stand over to be resumed at a later date. Anadjournment may be a fixed date orsine die (a date to be fixed).

administrator A person appointed by the court to administer the terms of a will.

admonish To warn or caution.

adversarial system The legal system where the judge acts as an umpire to two partiesadvocates presenting each side of a case. (c. f. inquisitorial)

advocate One who represents another in a hearing.

affidavit A written statement sworn on oath or affirmed before a person withauthority to administer it. The person in whose name the document issworn is called the deponent. Affidavits must contain only facts whichthe deponent can prove. Generally, affidavits are required in courtproceedings in place of Statutory Declarations.

affiliation order A magistrates order which requires the putative father (q.v.) of a childto pay maintenance to the mother for the support of the child.

affirmation A declaration sworn without taking a religious oath.

agency A trust relationship, created at law, between three parties.


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agent A person who acts on behalf of another, who is called the principal.The principal may authorise the agent to enter into a contract and theagent acquires rights or incurs obligations on the principals behalf. Anagents act, done within the scope of his or her authority, binds theprincipal.

alienation The power of the owner or tenant to dispose of his interest in real or

personal property. Alienation may be voluntary e.g. by conveyance orwill; or involuntary ,e.g. seizure under a judgment order for debt.

ambulatory Revocable, temporary

amortization Provision for paying off a debt

ancillary relief In family law, orders relating to custody, maintenance, access and theproperty of the parties; as opposed to the actual divorce or dissolutionof marriage, which is called principal relief.

annuity A sum of money payable yearly.

annul To declare void (q.v.) in law. For example, when a marriage isannulled, the court is saying that it never was a marriage in law.

appeal Proceedings heard before a higher court to test the validity of a lowercourt decision.

appearance The physical attendance of parties or their representatives at a hearing

appellant A person seeking to have a legal decision reviewed, that is, seeking toappeal.

appellate courts Courts which hear appeals against the decision of other courts

appropriate To allocate for a special purpose. This term is used in relation to finesand other payments received by a Court. Certain fines must beappropriated to special sections of Consolidated Revenue Fund whichis controlled by the Treasury.

arbitration The settlement of a dispute by submitting to an independent personwhose decision is binding on the parties.

arraign To call an accused to the bar of the court by name, to read to him thesubstance of the indictment, and ask him whether he pleads guilty ornot guilty.

arrears Money owning after the time for payment has expired.

arrest To apprehend or take into custody a person suspected of havingcommitted a crime.

arson To malicious firing of a house or other building.

articles of association A document containing regulations for the management and internalarrangement of a company.

assault Intentional behaviour by one person which puts another in fear ofharm.

asset Anything of value owned by a person or company.

assign To transfer property

ats This is an abbreviation for At the suit of. Sometimes instead ofdescribing a case as SMITH v. JONES, the cases is described asJONES ats SMITH.

attest To give evidence of.

attestation clause A witnessing clause, e.g. in a will. The attestation clause states thatthe witnesses saw the testator sign and that they signed in thepresence of the testator and each other.

avow To admit; confess.

award The decision of an arbitrator, for example in industrial arbitrationproceedings. Once it is made, it has the force of law and can beenforced in the same way as a court order or judgment.

bail Security for the appearance at trial of a person released from custody.

Bailiff A court officer employed to do such things as serve documents andcarry out court orders in N.S.W.,. this work is done by Sheriffs


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Officers, although the term bailiff still occurs in various Acts. In PNG,it is done by Sheriff Officers.

bailment A delivery of goods from one person (the bailor) to another (the bailee)for some purpose, upon an express or implied contract that the goodswill be redelivered to the bailor when that purpose has been fulfilled,e.g. delivering clothes to a dry cleaner creates a bailment. A contract

may be implied from the behaviour of the parties.bankruptcy A procedure under which most of a debtors property is taken over anddistributed amongst his or her creditors.

bar Members of the legal profession other then judges (c.f. bench)

battery When assault and battery were separate crimes, battery was theactual striking of another person or touching them in a hostile oroffensive manner.

beak Judge

bench (the) The judges of a court of law including magistrates (as opposed tolawyers, barristers, the bar).

beneficiary A person who is left something in a will; a person for whose benefitproperty is held by trustees or executors.

bequeath Give personal property by will. e.g. legacy.

bequest A gift of personal property by will (q.v.). A residuary bequest is a gift ofthe residue of the testators personal estate. A specific bequest is abequest of property of a certain kind, e.g. a watch.

bill of exchange A negotiable instrument (q.v.) in which the drawer orders the drawee topay a sum of money on a specified date to either the bearer or a thirdperson (the payee).

bill of sale A transfer of ownership of goods, usually as security for a loan.Possession remain unchanged.

blackmail The offence of demanding property with menaces; extortion.

bona fide In good faith, honestly.

bond In criminal cases the defendant may enter into a bond to be of goodbehaviour, or to do or to refrain from doing certain things, sometimesreferred to as a recognizance (q.v.). In a landlord and tenant situation,

the tenant pays bond money against possible damage to the landlordspremises.

breach of contract This occurs when one of the parties to a contract fails to carry out theirside of the bargain.

brief Instructions given by a solicitor to a barrister to represent a client incourt proceedings.

burden of proof Onus of proof (q.v.). In criminal cases, the prosecution bears theburden of proof. In civil cases, it is the plaintiff. Sometimes the burdenshifts, e.g. if the defendant wants to set up a particular defence.

burglary Break and enter at night.

capias This is a term sometimes used to refer to a warrant. The literaltranslation of this Latin word is Let you take or You may take.

capital The capital of a company is the amount of principal money with which

a company is formed to carry on business. Also the funds a companyproposes to raise through the issue of shares.

caption The formal heading of a legal document, stating before whom it wastaken or made.

caveat A document containing a warning to owners or buyers, lodged by aperson claiming a right or interest, (e.g. an unregistered interest in apiece of land).

caveat emptor Let the buyer beware. At common law (q.v.) where a buyer of goodshad no warranty for them, he or she took the risk of their quality of himor herself and had no remedy against the seller unless there was


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fraud.

chose in action A right of proceeding in a court of law to procure the payment of a sumof money (e.g. on a bill of exchange, policy of insurance), or to recoverpecuniary damages for the infliction of a wrong or the non-performanceof a contract. A legal chose in action is a right of action which could beenforced in a court of law.

committal An order made by an examining magistrate who has found sufficientevidence to warrant an accused being tried by a higher court.

committalproceedings

Where a District Court hears evidence on an indictable charge (q.v.)and decides whether the accused should be sent for trial (also called apreliminary examination).

common law The part of English and Australian law traditionally based on commoncustoms and unwritten except in the reports of judgments applying it.Law which is not equity (q.v.), statute (q.v.) or ecclesiastical (church).

common law marriage A defacto marriage relationship where the partners have different legalrights to married partners.

complainant A person who begins a prosecution against another in a District Court,a plaintiff, the victim in all alleged sexual assault.

complaint Is the method used to commence civil proceedings (as opposed to

criminal proceedings) or criminal proceedings where the Court haspower to make an order for the payment of money, but not to impose afine or term of imprisonment. The term is commonly uses to describethe document by which proceedings (other than Civil Claims andDistrict Court) are commenced.

conciliation The bringing together of parties in an attempt to settle a dispute.

concurrent sentences Where a person is convicted of several offences at the same time, thecourt may order that the sentences for each charge be servedconcurrently, i.e. at the one time, not added together. (q.v. cumulativesentences).

condition An important term in a contract, the remedy for breach of which isrescission (q.v.) of the contract.

consanguinity The degree of blood relationship of one person to another.

consent judgment A judgment of the court based on the prior decision of both parties asto how the debt is to be paid.

consideration A thing of value in exchange for which a promise or agreement ismade.

conspiracy A secret plan or agreement to carry out an illegal or harmful act,especially with political motivation, plot.

contempt of court The failure to obey a court order or an act which shows a disregard forthe authority of the court or judge. A person in contempt may faceimprisonment.

contract A legally binding agreement; it need not be in writing to be binding.

contributorynegligence

Where a person is shown to have done something to contribute to hisor her own injuries.

conveyance The formal transfer of property. The instrument by means of whichsuch transfer is effected.

conveyancing A general term used to refer to the work of solicitors which does notrelate to court actions. (E.g. acting for the buyer of property).

conviction This is a term only used in criminal proceedings and refers to the ordermade by the Court indicating the Courts recognition of the accusedsguilt and that some form of punishment will be imposed.

corroboration Independent evidence with confirms other evidence.

counsel A barrister.

count Each different criminal charge.

counterclaim Where the defendant has a claim against the plaintiff which might have


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been brought by bringing a separate action, he or she may raise it inthe existing action by adding a statement of the facts on which theclaim is made, to the statement of defence.

counterfeit To falsely make or counterfeit any coin resembling any current coin.An indictable offence.

convenant An agreement creating an obligation contained in deed (q.v.) A

convenant may serve the same purpose as a bond. (q.v.).creditor A person to whom a debt is owing.

crime A crime is an act or omission or conduct detrimental to the publicinterest, which by law makes the person responsible, liable topunishment by way of fine or imprisonment after their guilt is provedbeyond reasonable doubt.

criminal law Deals with offences deemed to be against society (prohibited bystatute law q.v.)

cross examination Questioning of a witness by the person on the opposite side, or theirlawyer, after the witnesss evidence has been given.

culpable negligence Wanton, reckless and intentional negligent conduct, i.e. criminalnegligence.

cumulative sentences Where a person is convicted of several offences at the same time and

the terms of imprisonment for each charge are added together.Opposite of concurrent.

custody Care and control. A parent with custody of children has the legal rightto them and the duty and responsibility to control their way of life,education and general upbringing. The custody may be awarded toboth parents, jointly, or to one parent and / or a third person.

damages The amount ordered by a judge to be paid by one party to another in acivil case.

de facto In reality, e.g. de facto partner is one in reality but not in law.

de jure In or of the law. Often used in opposition to de facto, meaning asopposed to actual or common practice.

debenture A document issued by a company or public body as evidence of a debtor as security for a loan.

decree absolute The final order in divorce proceedings.decree nisi A provisional order made by a judge which terminates the marriage.However neither party can remarry until the decree becomes absolute.

deed A formal document, signed and witnessed.

deemed To be treated as

deemed employees People who are self-employed but who are deemed or treated asemployees for the purposes of setting their minimum standards andconditions of employment.

defamation The publication (in written form or orally) of a false and derogatorystatement without a lawful excuse.

default To fail in some duty, e.g. to pay a debt or fine.

default summons A summons which alleges that the debtor / defendant has failed to paymoney due and owing.

defendant The person against whom a civil action is brought by another person,the plaintiff.

demise The grant of land for a term of years, as when a landlord demisestheir property to a tenant for a fixed term.

demurrer A pleading that the other partys case showed no good cause.

deponent A deponent is a person who makes a statement on oath, either orrallyor by means of a written document (the written document is called an

Affidavit).

deposition A written document recording the testimony of an accused or awitness, given during the course of either preliminary examination or


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committal proceedings.

devise A gift of real estate in a will.

Direct evidence Direct (personal) observation of a fact at issue. (c.f. circumstantial &hearsay evidence).

disbursements The term used in a lawyers bill of costs to refer to amounts paid out byway of stamp duties, registration fees, etc. In other words, out-of-

pocket expenses.discharge To perform or be released from an obligation. A debt is dischargedwhen it is paid.

discharged bankrupt A person whose obligations as a bankrupt have been terminated by acourt.

disclaim To renounce a right of claim.

Disclaimer clause A clause which renounces a legal claim. An executor may disclaim hisor her position before probate (q.v.).

discovery A procedure by which documents relevant to a civil (q.v.) action areexchanged between the parties before the case comes on for hearing.

disposition The transfer of something from one to another.

dissolutionof marriage

Divorce.

distrain To seize goods by way of distress (q.v.).distress Taking movable property out of the possession of a wrongdoer to

compel the performance of an obligation.

dividend The payment made out of the profits, to the shareholders in acompany.

divorce Dissolution of marriage.

document A written, printed or inscribed paper furnishing information or evidence.

domicile The place where a person has his or her legal home therefore theplace which determines the legal system relevant to that person.

double jeopardy The principle that a person may not be tried for a crime for which he orshe has already been acquitted or convicted.

due process The proper observance of legal procedures designed to protect therights of the accused.

duress Force or threat of force. An act done under duress is generally invalid.easement An entitlement to the use of land by someone other than the owner,

e.g. a right of way.

ejectment An action for the recovery of land.

embezzlement Theft by an employee of property received on his/her employersaccount.

encumbrance A change (q.v.) or liability, e.g. a mortgage.

endorse To write on the back of a document.

eminent domain The right of a government to take private property for public purposes.

entrapment An officer of the law inducing a person to commit an offence.

equity Fairness. A system of legal rules developed by the Lord Chancellorand Courts of Chancery in England to modify the harshness of thecommon law (q.v.). Also the extent of a persons interest in property.

escrow A written agreement to be held by a third party for delivery only uponfulfillment of some condition.

estate Property of a deceased person.

estoppel Prevention of an allegation (q.v.) pleading (q.v.) contrary to that whichhas been already established.

eviction The action of recovering land or property by legal proceedings.

evidence All legal means which tend to prove or disprove any matter of fact.

ex gratia A matter of favour. An act done when there is no obligation.

ex nuptial Out of marriage.


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ex parte An application in proceedings, made either by one party in theabsence of another or by an interest person who is not a party.

examination The formal interrogation of a person bound by oath or affirmation toanswer truthfully.

examinationsummons

After judgment has been entered in District Court and Civil Claimsproceedings, an examination summons can be issued requiring the

Judgment Debtor to attend before the Registrar of Court on a specifiedday to be examined as to their financial circumstances and ability topay the debt.

exclusion clause A clause in a contract which attempts to exclude or avoid liability (q.v.).

execution The process of carrying out a court order after judgment, usually toenforce payment of a sum owing, or the signing of a deed or will orother document.

executor The person whose duty is to carry out the provisions of a will. Wherethat person is female, executrix is an alternative description.

exhibit A document or thing tendered as evidence in a court hearing orreferred to in an affidavit (q.v.).

extradition The delivery, by the authorities of one country (or state), of a personaccused of a crime in another place, to the authorities in that country

or state.false imprisonment Detaining someone in custody without lawful excuse.

fee simple In modern property law, this indicates absolute ownership of realproperty free of any limitation.

felony A more serious crime.

fiduciary(relationship)

A relationship of trust (as between a trustee and a beneficiary).

file To submit (documents) to a court registry.

fishing expedition To try to find out information (usually in court) not within the relevantissues or not supported by allegations.

foreclosure The forced sale of a property to pay a mortgage (q.v.) debt.

fraud Obtaining a material advantage by unfair or wrongful means.

freehold Ownership of land with the right to pass it on through inheritance.

garnishee order A court order attracting moneys due to a debtor by a third person, e.g.an employer must deduct money from the debtors wages and paythem to the creditor.

garnishment Proceedings to have a person or body who owes money to a debtor,e.g. an employer or bank, to pay that money instead to a creditor.

gazumping The practice of one party withdrawing a promise to sell or buy.

goods and chattels Strictly, movable goods, but use in a wider sense to denote any kind ofpersonal property as opposed to real property.

grant of probate Court order giving the executor permission to deal with the estate.

gravamen The essential characteristic.

guarantee To undertake (q.v.) with respect to a contract or the performance of alegal act, that it shall be correctly carried out. The person giving theundertaking is called the guarantor.

guardian A person who has the right and duty to protect another person, theirproperty and their rights. Not necessarily the person with custody(q.v.).

habeas corpus To have the body. A prerogative writ (q.v.) directed to a person whoholds someone in custody, commanding him or her to produce thatperson before a court to test the legality of imprisonment.

hearing The taking of pleadings and evidence in legal proceedings, or asession in which testimony is heard.

hearsay evidence Evidence which is not from the direct personal knowledge of theperson giving it (usually inadmissable).


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holding charge A minor charge used by the police to hold a person in custody whilethey gather evidence for a more serious charge.

homicide The killing of another, whether intentional or not.

immunity Exemption from a liability to which others are subject (c.f. indemnity).

in camera The whole or portion of a hearing held in private.

incitement Urging or ordering someone else to commit an offence.

incorporation The creation of a corporation, which is a legal entity made up ofindividuals but existing in law as though it were a separate entity.

incorrigible Cannot be corrected or improved.

incriminate To involve oneself or another in responsibility for a criminal offence.

indemnify To make up a loss which someone has suffered as a result of the actor default of another.

indemnity A security preventing someone from injury by the action of anotherparty (c.f. immunity). Compensation for a wrong done or an expenseor loss suffered.

indictable offence A serious crime for which a person will usually be tried by a judge orjury.

industrial award Legally binding order made by an industrial tribunal, setting minimumstandards and conditions of employment.

informant The person who lays an information, or the person on whose behalfthe Information is laid.

information Criminal proceedings are commenced by the laying of an Information,either orally or in writing before a Justice of the Peace. Theinformation is an allegation that a certain person has committed aspecified offence, which is punishable by fine, imprisonment orotherwise.

injunction A court order requiring a person to do or to refrain from doing aparticular thing, under penalty of contempt of court.

inquiry An investigation and taking of evidence by a legally constituted body todetermine facts and make a recommendation thereon.

inquisitorial system The legal system whereby the judge plays an active role ininvestigating the facts (c.f. adversial).

insolvent Unable to pay debts in full.instrument A formal written legal document.

inter alia Amongst other things.

interlocutor Interim, temporary or provisional.

Interpleadersummons

A procedure by which a magistrate decides whether goods to beseized are in fact the property of the debtor.

interrogatories Written questions put by one party to another (in civil (q.v.) action) onrelevant points of the dispute prior to the court hearing.

intestate, intestacy Dying without leaving a will.

invalid Not valid (q.v.)

irregularity The departure from, or neglect of, the proper formalities in a legalproceedings. They may be waived or consented to by the other party,or rectified by the court on payment of costs occasioned.

issuable (A pleading) raising a substantial question of fact or law, a judgment orverdict on which would determine the action on its merits.

issue The material point in question.

Joinder The joining of causes of action or parties to an action.

joint custody An order for custody of children (q.v.) in which custody was awardedjointly to the parents so that they shared the legal responsibility for theupbringing of the children, e.g. education.

joint tenants Persons who own land together in undivided shares, with right ofsurvivorship, i.e. on the death of one owner his or her interest


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automatically passes to the surviving owner(s). The interest cannot bedisposed of by will or deed as with tenants in common.

judgment The decision or sentence of a judge or court.

judgment creditor Judgment creditor is the term used to describe a plaintiff who hasobtained a judgment against a defendant. After judgment the termplaintiff is no longer used.

judgment debtor The term used to describe a defendant after judgment has beenobtained against them. After judgment, the word defendant is no longused.

judgment in default Where the plaintiff is able to obtain judgment in the absence of anappearance or a defence.

judicial notice Matters of common knowledge (therefore not requiring to be proven).

judicial review A uniform system for the exercise of the High Court of its supervisoryjurisdiction over infer courts, tribunals and public bodies and persons.Upon application to the High Court for judicial review the remediesavailable are (a) orders of mandamus(q.v.), prohibition (q.v.) orcertiorari (q.v.); (b) a declaration or injunction; (c) an injunctionrestraining a person acting in a public office when not entitled to do so.The remedy of judicial review is concerned not with the decision ofwhich review is sought but with the decision making process.

juridical Pertaining to law or legal proceedings.

jurisdiction The authority of a court to decide matters brought before it. Also thegeographical limits within which a court order can be enforced.

jurisprudence The study of the principles of law.

jury A number of persons (usually twelve), summoned to decide questionsof fact in court proceedings.

laches Negligence or unreasonable delay in asserting or enforcing a right.

larceny Stealing, taking without permission (known as theft).

law reports Reports of important court cases, published in volumes annually.

lease Agreement or contract between a landlord and a tenant.

leasehold An interest in land for a fixed period.

leave Approval, permission.

legatee A person whom property is bequeathed.letter of demand Letter to debtor demanding payment from creditor or debt collectionagency.

letter ofadministration

The document issued by the Supreme Court authorising a personappointed as Administrator to distribute the estate of a person whodies without leaving a will.

liability Legal responsibility, e.g. for breaking a contract, committing a crime. Itmay be civil (q.v.) or criminal, according to whether it is enforced bythe civil or criminal court.

libel The publication of defamatory material in permanent (e.g. printed)form.

liberty Leaving the way open for further action.

lien The right to hold a persons property as security for the performance of

an obligation (e.g. the payment of money owing).ieu, in In the place of.

limitation, statutes of The laws which set out the time limits in which legal action must betaken.

liquidated Fixed or ascertained. A debt is liquidated when paid and a companywhen wound up.

liquidated amount A fixed amount, i.e. a stipulated amount as opposed to a generalclaim, e.g. for damages.

litigation A court case.

locus standi Place of standing, the right to be heard in a court or other


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proceedings.

mnaughten rule States that in order to plead insanity the accused must prove that atthe time of the offence they did not know the nature of their act or thatthey were doing wrong.

malfeasance The doing of an unlawful act.

malice Evil, unlawful intention.

man of straw A person not worth suing, as lacking financial substance.manslaughter Unlawful homicide not amounting to murder, either because there wasno intent to kill or because there was some mitigating circumstance.

material Substantial, significant.

maxim A proposition requiring no proof, a rule of conduct.

memorandumof association

A document essential to the registration of a company, containingdetails of the companys name, method of financing and extent of itsmembers liability.

mens rea A guilty mind, the evil intention or knowledge that an act is wrong.

merchantable quality Up to a reasonable standard and quality for the purpose of the goods.

metes and bounds The boundary lines of land with their terminal points and angles.

minor A person under the age of eighteen years.

minutes Notes or records of the business transacted at a meeting.

misadventure An accident arising out of the performance of a lawful act.misdemeanor A minor indictable offence.

misfeasance The improper performance of some unlawful act or duty.

misprison offelony

Concealing knowledge of a crime.

mitigation Showing facts which tend to reduce the damages or punishment to beawarded against a defendant or prisoner.

moiety A half, or one of two parts of a division of something.

moot point A debatable point.

moratorium General postponement

mortgage A transfer of real property (land) or personal property (goods) assecurity for the repayment of money borrowed. The creditor to whomthe mortgage is made is called the mortgagee; the debtor who makes

it is the mortgagor.motion An application to a court or judge for an order directing something to

be done in the applicants favour; or a proposed form of resolution tobe passed by a meeting.

murder Killing a person intentionally or with reckless disregard for human life.

natural justice The minimum standards of fairness to be applied in the adjudication ofa dispute.

natural person A human being, as distinct from an artificial person, e.g. a company.

negligence A failure to take reasonable care to avoid foreseeable harm to otherpeople or their property.

negotiable instrument A signed document by means of which money may be transferred fromone person to another or through several hands, e.g. a cheque, bill ofexchange (q.v.).

nexus A bond, link or connection.nominal damages Damages (q.v.) of a small amount ordered where a right has been

affected but no damage done.

nominal defendant If a victim of a motor vehicle accident cannot find the person at fault,he or she can sue the Nominal Defendant instead.

non est factum It is not his or her deed. A defence raised where a person hascompleted a deed in ignorance of its character.

nonfeasance The failure to perform a lawful duty.

nonsuit Where the judge withdraws a case from the jury and decides the


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verdict for the defendant.

notice of cross claim A counterclaim a debtor may make against a creditor to offset a debt.

nugatory Having no worth or meaning.

nuisance An indirect and unlawful interference with an occupiers use orenjoyment of land by such things as water, smoke, noise.

null and void Without legal validity.

nullity proceeding Under certain circumstances an application for a decree of nullity maybe made to the court for a marriage to be declared invalid.

oath Where a statement is given orally or made in writing on oath, thismeans that the person making the statement has taken oath on theBible before a Justice of Peace.

ombudsman A public official appointed to investigate citizens complaints againstthe administrative agencies of government and leaders under theleadership code.

on all fours Strictly analogous or equivalent.

onus of proof The obligation to prove what is alleged. Also known as the burden ofproof.

ordinance A local or municipal regulation.

ordinary negligence Conduct falling below standards acceptable for the protection of other

people against unreasonable risk and harm.parole evidence Verbal evidence.

parole The conditional release of a prisoner before the expiry of theirsentence.

party A participant in legal proceedings.

patent A grant by the State of the exclusive right to make, use and sell aninvention.

pecuniary Relating to money.

pejorative Tending to make worse or belittle.

principal relief In a divorce action, the dissolution (q.v.) itself rather than the ancillaryrelief (q.v.).

prisoner A person who has been found guilty of or has pleaded guilty to acriminal charge.

privilege The immunity or exemption from some liability which a person has byvirtue of their office or status.

privity of contract A principle that restricts contractual rights and obligations to theimmediate parties to contract.

privy Party to or with a share or interest in something.

probate The proving of a will, the acceptance by the Probate Division of theSupreme Court that the deceaseds will is valid (q.v.) and is the last willin existence.

procedural law The rules and principles relating to the carrying out of the law (q.v.adjective law; c.f. substantive law).

process This is a term commonly used to describe legal documents, particularlyDistrict Court and Civil Claims documents. For example, summonses,writs and garnishee orders may collectively be described as process.

prohibitedrelationship

One between brother and sister or between a person and his or herancestor or descendant.

promulgate To put into effect a law or decree.

prosecutor This is a term only used in criminal proceedings to describe the personwho conducts the case in court on behalf of the Informant.

prospectus A document describing a public offering of shares, debentures orsecurities, to invite subscribers.

proviso provided that; a condition that must be met.

Proximate case The last negligent act that contributed to an injury.


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proxy A lawfully constituted agent deputed to vote for or represent anotherperson.

perjury The making of a false statement on oath in judicial proceedings, e/.g.by a witness.

personal property Movable property (c.f. chattel).

perverting the course

of justice

Interfering with the administration of the judicial system (e.g. bribing a

judge).petition Written statement setting forth facts and requesting relief or remedy.

plaintiff Person who initiates legal proceedings against another in a civildispute (c.f. complainant).

plea The statement of guilt or innocence of an accused person in reply to acriminal charge.

plenary Of full scope or extent; complete.

power of attorney A formal document by which on person empowers another torepresent them or act in their place.

pre-emption The right to purchase ahead of others.

Precatory words Words in a document making a gift of property, expressing the wish orhope that it be put to a particular use.

precedent A court decision embodying a legal principle, which may be relied on

as an authority for deciding cases based on similar facts.preliminary See committal proceedings (q.v.).

preponderance The greater weight.

prerogative writ A writ issued by a superior court (e.g. the Supreme Court) to preventinferior courts and officials from exceeding their powers or to compelthem to exercise their functions, e.g. habeas corpus, mandamus,certiorari.

prevarication Lying; corrupt action.

prima facie At first sight. Where there is evidence sufficient to support a charge orallegation, and which is conclusive proof unless it is disproved byevidence to the contrary.

principal Capital or property, as contrasted with the income derived from it.

publication Means to make public a defamatory statement. Publication is

established by proving that the material has been communicated tosomeone other than the person defamed.

putative Supposed; reputed.

putative father The person held to be the father of the complaints (q.v.) child inaffiliation proceedings (q.v.).

quash To set aside a wrongful conviction or decision.

quorum The fixed number of members who must be present to constitute avalid assembly.

rationale A statement of reason.

re In regard to.

real property Real property or REALITY is fixed and immovable property. E.g. land,houses, buildings, etc.

recidivism Relapsing into crime.

recitals Phrases (usually beginning with whereas leading up to the main partof a legal document.

recognizance(reck-on-assance)

This is a written promise to the State that conditions under which aperson is to be released from the custody of the Court will be compliedwith. If the conditions are not kept, the persons who make the promisemay be liable to pay a sum of money specified in the recognizance.

release A document saying that money is accepted in full settlement.

remand To adjourn a Court hearing and order that the accused person be keptin custody unless admitted to bail.


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remission Of penalty: Where the State orders that a penalty imposed by a Courtby waived.Of Fee: A Clerk of Court has the power in certain cases to order that aprescribed court fee be waived. The fee is then said to have beenremitted.

remittance A remittance means anything received in the mail containing cash,

cheques, money orders or postal orders.repeal To cancel a previous statute with a new one.

requisitions Written questions addressed to a vendor by a purchaser.

rescind, rescission Cancellation of a contract.

residue That which remains of a deceased persons estate after payment ofdebts, funeral expenses and legacies.

residuary legatee Person entitled to the residue of an estate.

respondent A party against whom an appeal is lodged or a complaint laid.

restitution 1. a writ by which a defendant, successful in an appeal, is restored toall he has lost by the execution of the judgment which is reversed;the writ by which stolen goods are formerly restored to their trueowner.

2. An order for the delivery up to the victim the stolen goods, or

goods bought with the proceeds of stolen goods or forcompensation of the victim out of money found on the offender onhis arrest, provided that it is clear that the property was stolen fromthe Victim or represents the proceeds of goods stolen from thevictim.

revoke To cancel or withdraw a legal document, especially will.

right An interest recognised and protected by the law.

Right of action The right to bring an action. Thus a person who is wrongfullydispossessed of has a right of action to recover it. It is used also asequivalent to chose in action (q.v.).

rule of law The doctrine of English law expounded by Dicey, in Law of theConstitution, that all men are equal before the law, whether they beofficials or not, so that the acts of officials in carrying out the duties ofthe executive government are cognisable by the ordinary courts and

judged by the ordinary law, as including any special powers, privilegesor exemption attributed to the State by prerogative or statute.

sanction A penalty.

seal To make or seal an instrument (q.v.) as evidence of authenticity.

sentence The determination by the court of the penalty to be imposed on aconvicted person.

separation The two parties to a marriage living separately and apart.

sequestration Legal process on behalf of a creditor giving a trustee control of adebtors property. Upon the making of a sequestration order a debtorbecomes a bankrupt.

serve (service) Bring the contents of a document to the notice of the party affected.

severally Separately; individually.

sexual assaultsine die Without naming a day. A court action is adjourned sine die when nodate for hearing has been set.

slander The publication of defamatory material in non-permanent (e.g. verbal)form.

spouse A husband or wife.

standard of proof The level to which something must be proved in court. In criminalmatters, the standard is beyond reasonable doubt; in civil matters, itis on the balance of probabilities.

statute A law made by Parliament (Provincial or National).


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statement of claim A written or printed statement by the plaintiff in an action in the HighCourt, showing the facts on which he relies to support his claim againstthe defendants, and the relief which he claims.

statutory declaration This is a document signed by a person in the presence of a Justice ofPeace, acknowledging that the contents of the document are true andcorrect. A statutory declaration differs from an affidavit in that it is not

sworn on oath or affirmed.statutory duty A duty, or liability, imposed by some statutes (q.v.).

stay The suspension of proceedings in an action where to proceed wouldbe improper.

stay of proceedings Suspension of proceedings in an action; may be either temporary (untilsomething ordered is done) or permanent.

stipulation A condition on an agreement.

strict liability Liability (q.v.) incurred regardless of intention.

subpoena Literally, under penalty. This is a document issued by a Justice ofthe Peace directing a person to attend the court on a certain dateeither to give evidence (subpoena ad test) or to produce specifieddocuments (subpoena duces tecum).

sue To take legal action.

summary This term is used to describe criminal offences which can becompletely heard and determined by a Magistrate in a District Court.

summary dismissal Where an employer sacks a worker on the spot without notice orpayment in lieu of notice.

summary proceedings Court actions or prosecutions which may be disposed in a DistrictCourt.

summing up A judges review of the evidence and explanation of the law of a casefor a jury.

summons A document issued from the office of a court ordering a person toappear at the court.

surety A person who binds him or herself to be answerable to another. Ifthere is default the surety will be liable.

surrogate Substitute.

suspended sentence A sentence not put into effect as long as the defendant doesnt re-offend.

tacit Understood; implicit.

taxation (of cost) Scrutiny and adjustments by a court officer of the claimed costs oflitigation.

tenants in common One or more people entitled to occupy or owning land in common withothers. Each person may leave his or her share to someone else in awill, that is, there is no right of survivorship (c.f. joint tenants).

tenure An element of the feudal system of landholding, tenure denotes thetype of holding of land, as in free(hold) tenure which indicates that noservice is required of the owner for the use of the land.

testament Strictly speaking, a will of personal property, though often used torelate to wills generally.

testamentary capacity The ability to draw up a will, the ability to understand what is beingdone.

testate Having died and left a will.

testator/testatrix A person who has died and left a will.

testimony Evidence given orally by a witness in court.

theft The dishonest appropriation of anothers property.

title A legal right to the possession of property, especially real property.

title deed A document of title stating a right of ownership to land.

to wit Namely; that is to say


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tort A civil (q.v.) wrong, other than a breach of contract, which causesharm (intentionally or otherwise) for which the injured person mayclaim damages (compensation) e.g. negligence, nuisance, trespass.

tortfeasor One who commits a tort.

tortious Wrongful.

transcript The official copy of a courts proceedings.

trespass A tort (q.v.) involving the direct and unlawful interference with thepossession of land or other property, regardless of the intention of thetrespassers.

tribunal A body with judicial or quasi-judicial functions, constituted by statuteand existing outside the usual judicial hierarchy of courts.

true bill A written accusation found to be valid.

trust An association between two (or more) people, based on confidence,where property is held by one person on behalf of and for the benefit ofanother. A trustee is a person who holds property on trust for another.

turpitude Wickedness; depravity.

ultra vires Beyond the power. An act which is in excess of the authority conferredby law, and therefore invalid.

unconscionable

contract

One that no person in their senses and not under delusion would make

on the one hand, and that no honest and fair person would accept onthe other.

undertaking A promise to do or refrain from doing an act. An undertaking made inthe course of legal proceedings is enforceable.

undue influence The improper use of a superior position for personal benefit.

unenforceable That which cannot be proceeded for, or sued on, in the courts.

unliquidated Undetermined, unascertained,. e.g. when damages are left to a jury todetermine.

unsworn statement A statement made from the dock by the accused whilst not under oath.

usurpation Unlawful seizure or occupation of somebodys rights or property.

usury The changing of excessive interest for the loan of money.

venue The place where a case or action is to be tried.

verdict The decision of a jury or judge.

versus Against. Usually written as Smith v-Jones. Pronunciation varies. Incriminal jurisdiction, it is said as either State v. Jones or State againstJones. In civil jurisdiction, it is said as either Smith vee Jones, orSmith and Jones. Original Latin meaning is facing.

vest To become someones property as a legal entitlement.

vexatious litigant A person who persistently brings baseless legal actions againstanother.

vicarious liability Liability for the facts of another, as in an employer being held liable forthe act of an employee.

vitiate To make legally defective or null.

void Of no legal effect.

voir dire A preliminary examination of a witness by the judge in which he isrequired to speak the truth with respect to the questions put to him; if

he appears incompetent, e.g. on the ground that he is not of soundmind, he is rejected.

Waive To give up a legal right or claim.

Warrant A written authority to carry out an act (e.g. arrest).

Warranty An assurance or agreement about goods which are the subject of acontract of sale, the breach of which may give rise to damages.

Without prejudice A phrase used in correspondence when negotiating the settlement of adispute. Any terms offered by one side are not binding on them even ifaccepted by the other side, and the correspondence cannot be used


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as evidence in a court action.

Witness A person giving sworn or affirmed oral evidence on a question of fact.

writ A document under the seal of the State which commands the personto whom it is addressed to do or refrain from doing some act.

writ of execution A means of enforcing Civil Claims and District Court Judgments. If is adocument issued by the Registrar directing the Sheriffs Officer to

seize and sell sufficient property of the judgment debtor to satisfy thejudgment debt if it remains unpaid.

GLOSSARY OF FOREIGN WORDS AND PHRASES

a certiorari L. be informed. Certiorari is a prerogative writ (see main glossary)issued by a superior court quashing a decision of a lower court ortribunal.

a compte L. by the account; in part payment.

a fortiori L. from the stronger (reason).

a posteriori L.

(poss-tee-i-ory)

from the latter; inductive reasoning. A form of argument from the

effect to the probable cause.a priori L. from what goes before; deductive reasoning.

a propos F.(ah pro-poh

to the point; concerning

ab inition,in inition L.

from the beginningin the beginning

ab intra L from within.

ab invito L. by invitation; voluntarily.

absente reo L.(ab-sent-ay ray-oh)

in the absence of the accused.

actio in rem L. proceedings in a matter. Where the action or case is to or againstproperty, not a person.

ad hoc L. to this (purpose); for the one purpose/occasion only.

ad infinitum L.(in-fin-eye-tum)

to infinity; indefinitely.

ad litem L. for a law suit; for the purpose of this litigation.

ad rem L. to the matter; to the purpose.

ad test L. to give evidence.

ad valorem L.(val-or-em)

according to value. Where costs or duties are charged according tothe value of the subject matter.

Alias L. otherwise.

alibi L. elsewhere

amicus curiae L friend of the court. A person who is not a representative of a party toproceedings but who is permitted to bring to the courts attention, orargue, a point of law or fact.

amour propre F self-love; vanity; self-esteem.

au courant F.(or coo-ron)

up to whats current; up-to-date with; acquianted with.

au fait F. up to the fact; will-instructed in; knowledgeable.

autrefois convict (oracquit) F.

already convicted or acquitted: on the same charge.

bete noir F.(bayt nwah)

black beast; particular aversion.

bona fide L. in good faith.

carte blanche F. white cared; with unconditional authority.


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causa/conditie sinequa non L.

the cause/condition without which not.. an indispensable condition; aprerequisite.

caveat. L. let her/him be warned.

caveat emptor L. Let the buyer beware.

chose F. (shows) thing ; item of personal property.

circa L. (sir-ca) about

compos mentis L. so sound mind.contra pacem L. against the peace.

coram L. in the presence of (e.g. Coram Brown, J.)

coram non judice L.(yee-dee-chay)

jew-dee-see)

not in the presence of a judge

corpus delicti L. the body of the crime; evidence.

Corpus juris L.(yee-riss)

jew-riss)

the body of the law.

coup detat F.(coo daytah)

blow to the state; overthrow of a government by violence.

coup de grace F.

(coo de grass)

blow of grace; the death blow; the finishing touch.

cui bono L.(coo-ee bone-oh)(kwee-bone-on)

to whom the good; who benefits?

de facto L. of the fact; in actual practice.

de jure L.(yew-ray)(jey-ray)

of the law; by right.

de novo L. anew (anew).

de rigeur L.(rigg-uhr)

of srictness; required by custom.

de trop F.(troh)

too much.

dies non L. no day; a non-sitting day.duce tecum L. you will bring with you certain documents etc.

ejusdem generis L.(ay-uce-dem)

of the same kind.

en bloc F.(on block)

in a block; together.

en route F. on the way.

ergo L. therefore.

et cetera L. and other things.

et sequentia L. and the following things.

et cathedra L. from the seat of authority.

ex curia L. out of the court.

ex delicto L. arising out of a civil wrong.

ex officio L. by virtue of office.extempore L. instantaneously off the cuff.

fait accompli F. accomplished fact.

faux pas F.(for pah)

false step; a blunder.

force majeure F.(mah-zhyur)

greatest force.

in bono L. in the benefit of .

in camera L. in the rooms; in closed court.


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in esse L. in existence.

in flagrante delicto L.(flar-grantay)

in flaming crime; red-handed.

in litem L. in a lawsuit.

in perpetuum L. in perpetuity; forever.

in re L. in the matter of.

in specie L. in its own kind.in statu quo L. in the state which (it was).

in toto L. entirely.

inter se L.(say)

among themselves.

inter vivos L. among the living.

interim L. meantime

ipse dixit L.(ip-say)

s/he her/himself said it

ipso facto L. by the fact itself.

ipso jure L. by the law itself.

jurat L. let it be sworn.

Jus ad rem L.

(yss or just)

the law for the matter.

malum in se L(mah-lum in say)

evil in itself.

malum prohibitum L. prohibited evil.

mandamus L. we command; a prerogative writ from a higher court to compel aministerial, administrative or judicial officer to perform their public legalduty.

mens rea L.(ray-ah)

guilty mind; the requisite mental constituent of a particular crime.From the quote actus non facit reum nisi mens sit rea; meaningan act does not make man guilty unless his mind is guilty.

modus operandi L.(mode-us operan-die)

method of operating.

modus vivendi L. way of living; practical arrangement.

multum in parvo L. much in little; the epitome.nihil est L. nothing is.

nihil debet L. he owes nothing.

nisi L. unless

nisi prius L.(nee-see pree-us)

unless previously.

nolle prosequi L.(noll-ay pross-ay-kwee)

to be unwilling to prosecute; a decision by the State or a plaintiff notto proceed with part or all of a case.

non-compos mentis L. not of sound mind.

novo L. anew

nulla bona L. no goods upon which to collect.

obiter L. in passing; incidentally.

pari passu L. all things being equal.passim L. here and there; throughout.

per annum L. per year.

per capita L. per head

persona designata L.(per-sown-a)

designated person.

persona non grata L. unwelcome person.

post mortem L. after death.

praecipe L. initiative action; a form directing a court officer to issue or prepare a


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(pry-see-pay) document.

prima facie L. at first appearance.

pro boto publico L. for the public good.

pro rata L. in proportion.

puise A.F.(puny)

later born a judge of the High Court other than the Chief Justice.

qua L. in the capacity of .quaere L.(kwy-ray)

question, inquire; a doubtful legal proposition.

quantum meruit L. as much as s/he deserved.

quasi L.(kwa-zi).

as if .

sub silento L. under silence.

quai timet L. because s/he fears.

quid pro quo L. something for something.

quo animo L. with what intention.

quo vide L.(vee-day)

which see , q.v.

quorum L. of whom.

ratio decidendi L.(dessid-endy)

the reason for the decision; the legal principle for precedent.

reductioad absurdum L.

reduce to absurdity.

res gestae L. things done.

res integra L. a fresh matter.

res ipse loquitur L.(race ipsay lock-wi-tour)

the thing speaks for itself.

Res judicata L. an adjudicated matter.

Savior faire F.(sav-vwah fair)

to know how to do; sophistication

semper L. always

sic L. thus; as written.sine die L.(see-nay dee-ay)

without a day.

stare decisis L.(star-ay de-sigh-sis)

to let the decision stand.

stet L. Let it stand.

sub judice L(sub yew-di-chay)(sub jew-di-see)

under judicial consideration.

sui generis L. of its own kind.

sui juris L.(soo-eeyew-riss)(oos-ee jew-riss)

of ones own right; of full legal capacity.

tacit L. it is silent; unspoken, implied.tete-a-tete F.(tate-a-tate)

head to head.

ultra vires L.(wirace or virez)

outside the powers.

verbatim L.(ver-bay-tim)

as it was said.

versus (v) L. facing; against.

vis major L. greater force.


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vis--vis F.(vis-a-vee)

face to face; concerning.

voir dire F.(vwah dear)

to say truly.

volte face F. about face

Documents

Glossary of Legal Terms (2)