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assize utrum (yoo-tram). [Latin] Hist. A writ to determine whether land claimed by a church was held by lay or spiritual tenure. This writ is named after its emphatic word, which required the fact-finder to determine whether (utrum) the land belonged to the church. - Also termed (erroneously) assize of utrum; assize de utrum. "In the assize utrum a jury was summoned to decide whether land was held by lay or spiritual tenure a preliminary question to any litigation about it, for the Church claimed jurisdiction over spiritual land. later the Church was to lose this jurisdiction, and the assize utrum became the parson's substitute for the writ of right. This curious development was brought about in this way. A parson could not use the writs of right, for. like a life tenant. he could not trace his title back to the seisin of an ancestor. The assize utrum could be made to serve the parson, however, for the question asked in the writ was whether certain land in a parish was 'the free alms of the Church of x.' If the answer was 'yes,' then it followed that it was the parson of the parish's land." Brian Simpson. An Introduction to the History of the Land Law 30-31 (1961). "[T]he 'assize utrum' ... is important as being the first instance known to us of the general use of the royal pro· cedure by way of inquest in a matter of private litigation. If the answer of the inquest was that this land was held in frankalmOign. then the case went to the ecclesiastical coun; if that it was lay fee, then to the appropriate lay tribunal. In the course of the thirteenth century the ecclesi· astical courts lost their jurisdiction over land held by spiri· tual tenure, and the 'assize utrum' came to be used not as a merely preliminary procedure but as a mode of deciding in royal courts a question of title to glebe land." Geoffrey Radcliffe & Geoffrey Cross, The English Legal system 33-34(G).

assizer 1. A member ofa grand assize. See grand assize under ASSIZE (5). 2. Scots law. A juror. 3. One having custody of the standards of weight and measure; esp., one who fixes the assize of bread, ale, and other items ofgeneral consumption. - Also spelled assizor; assiser; assisor.

Assizes de Jerusalem (a-siz-az da ja-roo-sa-lam). A code of feudal law intended to serve as the law of the lands conquered by the Crusaders . The code was prepared in the 12th century after the lO99 conquest of Jerusalem.

assizor See ASSIZER.

assnmed name 1. ALIAS (1). 2. The name under which a business operates or by which it is commonly known <Antex Corporation's assumed name is Computer Warehouse>. Many states require an individual or business operating under an assumed name to file an assumed-name certificate, usu. in the secretary of state's office or the county clerk's office where the principal place of business is located. - Also termed fictitious name. See D/B/A. Cf. corporate name under NAME.

associate 1. A colleague or companion. 2. A junior member of an organization or profession; esp., a lawyer in a law firm, usu. with fewer than a certain number of years in practice, who may, upon achieving the requisite seniority, receive an offer to become a partner or shareholder. Also termed associate attorney. 3. Hist. English law. An officer of a commonlaw court responsible for maintaining the court's records, attending jury trials, and entering verdicts .o In 1894, associates' duties were taken over by the staff of the Central Office. See CLERK OF ASSIZE; CENTRAL OFFICE.

associate agent An agent who is registered to practice before the U.S. Patent and Trademark Office, has been appointed by a principal agent, and is authorized to prosecute a patent application through the filing of a power of attorney. An associate agent is often used by outside counsel to assist in-house counsel.

associate agent- See AGENT (3).

associate attorney See ATTORNEY.

associate attorney- 1. See ASSOCIATE (2). 2. Patents. An attorney who is registered to practice before the U.S. Patent and Trademark Office, who has been appOinted by a principal attorney, and who is authorized to prosecute a patent application through the filing of a power of attorney.

associate judge An appellate judge who is neither a chief judge nor a presiding judge. Also termed puisne judge.

associate judge See JUDGE.

associate justice An appellate-court justice other than the chief justice.

associate justice See JUSTICE (2).

associated person 1. A partner, officer, director, branch manager of a broker or dealer, or any person performing similar functions or occupying a similar status, any person directly or indirectly controlling, controlled by, or under common control with the broker or dealer, or any employee of the broker or dealer with two exceptions: (1) those whose functions are solely clerical or ministerial, and (2) those required to register under state law as a broker or dealer solely because they are issuers of securities or associated with an issuer of securities. 15 USCA § 78(a}(21), (49). 2. A natural person who is a partner, officer, director, or employee of: (1) the issuer; (2) a general partner of a limited partnership issuer; or (3) a company or partnership that controls, is controlled by, or is under common control with the issuer. Cf. AFFILIATE (2).

associated person See ASSOCIATED PERSON.

association 1.The process of mentally collecting ideas, memories, or sensations. 2. A gathering of people for a common purpose; the persons so joined. 3. An unincorporated organization that is not a legal entity separate from the persons who compose it. If an association has sufficient corporate attributes, such as centralized management, continuity of existence, and limited liability, it may be classified and taxed as a corporation. - Also termed unincorporated association; voluntary association.

Association of American Law Schools An organization of U.S. law schools that have each graduated at least three annual classes of students. Abbr. AALS.

Association of Legal Writing Directors A nonprofit corporation composed of the directors and former directors of law-schoollegal-writing programs, mostly in the United States. Created in 1996 to improve those programs, it supports research and scholarship; holds a biennial conference; conducts (with the Legal Writing Institute) an annual survey of the programs; maintains a listserv; represents writing teachers before the American Bar Association; and publishes various resources, including the ALWD Citation Manual. -Abbr. ALWD (aI-wid). See ALWD CITATION MANUAL.

association-in-fact enterprise Under RICO, a group of people or entities that have not formed a legal entity. but that have a common or shared purpose, and maintain an ongoing organizational structure through which the associates function as a continuing unit. A RICO violation is not shown merely by proving that an enterprise, including an association-in-fact, exists. A pattern of racketeering activity must also be proved. 18 USCA § 1961(4); United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524 (1981).

assoil (a-soyl), vb. [Law French]. Hist. To acquit or absolve; to deliver from excommunication. Also spelled assoile. Also termed absoile; assoilyie.

assultus premeditatus See assault purpense under ASSAULT

assume or reject Bankruptcy (Of a debtor-in-possession or a trustee) to make an election under the Bankruptcy Code concerning an executory contract or an unexpired lease within a prescribed period, depending on the chapter of the Code under which the case is proceeding and the subject matter of the contract. The timing, procedure, and consequences of the election are described in 11 USCA § 365.

assumed bond See guaranteed bond (1) under BOND (3).

assumed bond- See guaranteed bond (1).

assumpsit (a-sam[p]-sit). Law Latin "he undertook"]. 1. An express or implied promise, not under seal, by which one person undertakes to do some act or pay something to another <an assumpsit to pay a debt>. 2. A common-law action for breach of such a promise or for breach of a contract <the creditor's assumpsit against the debtor>. "It was early known as 'trespass on the case upon promises,' but in time came to be designated assumpsit (he assumed or promised), and lies for damages for breach of all contracts, parol or simple, whether written or verbal, express or implied." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 9-10 (2d ed. 1899). "In its origin an action of tort, [assumpsit] was soon transformed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract. Based at first only upon an express promise, it was afterwards supported upon an implied promise, and even upon a ficti· tious promise. Introduced as a special manifestation of the action on the case, it soon acquired the dignity of a distinct form of action, which superseded Debt, became concurrent with Account, with Case upon a bailment, a warranty, and bills of exchange, and competed with Equity in the case of the essentially equitable quasi-contracts growing out of the principle of unjust enrichment. Surely, it would be hard to find a better illustration of the flexibility and power of self· development of the Common Law:' James Barr Ames, "The History of Assumpsit," in 3 Select Essavs in Anglo-American Legal Historv 298 (1909).

assumption 1. A fact or statement taken as true or correct; a supposition <a logical assumption>. 2. The act of taking (esp. someone else's debt or other obligation) for or on oneself; the agreement to so take <assumption of a debt>. - assume, vb.

assumption clause 1. A mortgage provision that prohibits another from assuming the mortgage without the permission of the mortgagee. 2. A provision by which the transferee of an instrument agrees to assume an obligation of the transferor.

assumption fee A lender's charge for processing records for a new buyer's assumption of an existing mortgage.

assumption of mortgage or trust deed See ASSUMPTION.

assumption of the risk 1. The act or an instance of a prospective plaintiff's taking on the risk of loss, injury, or damage <the skydiver's assumption of the risk>. - Also termed assumption of risk. "[Assumption of risk] has been a subject of much controversy, and has been surrounded by much confusion, because 'assumption of risk' has been used by the courts in several different senses, which traditionally have been lumped together under the one name, often Without realizing that any differences exist. There are even courts which have limited the use of the term 'assumption of risk' to cases in which the parties stand in the relation of master and servant, or at least some other contractual relation; but they have been compelled to invent other names for other cases, such as 'incurred risk,' or 'volenti non fit injuria.' This appears to be largely a distinction without a difference; and most courts have made general use of the one term .... In its most basiC sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone." W. Page Keeton et aI., Prosser and Keeton on the Law of Torts § 68, at 480-81 (5th ed. 1984). 2. The principle that one who takes on the risk of loss, injury, or damage cannot maintain an action against a party that causes the loss, injury, or damage <assumption of the risk was not a valid defense> .o Assumption of the risk was originally an affirmative defense, but in most jurisdictions it has now been wholly or largely subsumed by the doctrines of contributory or comparative negligence. Ihe risk assumed by the person was often termed an incurred risk.

assumption ofmortgage or trust deed The acquisition of real property coupled with the assumption of personal liability for debt secured by that property.

assurance 1. Something that gives confidence; the state of being confident or secure <self-assurance>. 2. English law. See life insurance under INSURANCE <she obtained assurance before traveling abroad, naming her husband as the beneficiary>. 3. The act of transferring real property; the instrument by which it is transferred <the owner's assurance of the farm to his son>. 4. A pledge or guarantee <adequate assurances of the borrower's solvency>. assure, vb.

assured Insurance. One who is indemnified against loss; INSURED.

assurer See INSURER.

astipulation (as-tip-ya-Iay-shan). Archaic. Agreement; assent.

astitution (as-ta-t[y]oo-shan). Archaic. See ARRAIGNMENT.

astrarius (as-trair-ee-as), n. [Law Latin "hearth owner"] Hist. The owner or occupant of a house. Also termed astrer (as-trar). See heres astrarius under HERES.

astronomical day See solar day (2) under DAY.

astronomical day- See solar day (2).

asylee (a-si-Iee). A refugee applying for asylum; an asylum-seeker.

asylum 1. A sanctuary or shelter. 2. Protection of usu. political refugees from arrest by a foreign jurisdiction; a nation or embassy that affords such protection. Also termed political asylum.3. An institution for the protection and relief of the unfortunate, esp. the mentally ill Also termed (in sense 3, archaically) insane asylum.

at arm's length See ARM'S-LENGTH.

at bar Now before the court <the case at bar>. Also termed at bench; at the bar .

at bench See AT BAR.

at equity According to equity; by, for, or in equity.

at issue Taking opposite sides; under dispute; in question <the federal appeals courts are at issue over a question of law>.

at large 1. Free; unrestrained; not under control <the suspect is still at large>. 2. Not limited to any particular place, person, matter, or question <at-large election>. 3. Chosen by the voters of an entire political entity, such as a state, county, or city, rather than from separate districts within the entity <council member at large>. 4. Not ordered in a topical way; at random <statutes at large>. 5. Fully; in detail; in an extended form <there wasn't time to discuss the issue at large>.

at law According to law; by, for, or in law.

at maturity See date of maturity under DATE.

at par (Of a stock or bond) issued or selling at face value.

at the bar See AT BAR.

at the courthonse door (Of the posting of a notice of judicial sale, etc.) on the courthouse door, or in direct proximity to the door, as on a bulletin board that is located just outside the door and that is regularly used for the posting of legal notices .o Some statutes may specify that the notice be actually posted on the door. See POSTING (5).

at will Subject to one's discretion; as one wishes or chooses; esp. (of a legal relationship), able to be terminated or discharged by either party without cause <employment at will>.

atamita (a-tam-i-ta), n. [Latin] Civil law. A great-greatgreat-grandfather's sister.

atavia (a-tay-vee-a), n. [Latin] Roman & civil law. A great-great-great grandmother.

atavunculus (at-a-vangk-ya-las), n. (Latin] Civil law. A great-great-great-grandfather's brother.

atavus (at-a-vas), n. [Latin] Roman & civil law. The male ascendant in the fifth degree; a great-grandfather's or great-grandmother's grandfather; a fourth grandfather.

atf abbr. BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES.

Atilian law See LEX ATILIA.

atima (a-tee-ma). abbr. As their interests may appear. The phrase is sometimes used in insurance policies to show that the named insured has an interest, usu. an unspecified one, in the property covered by the policy and is entitled to benefits to the extent of that interest. The phrase is also used in a policy's mortgage clause to protect the mortgagee's real-property interest. See INSURABLE INTEREST; MORTGAGE CLAUSE.

Atinian law See LEX ATINIA.

at-issue waiver An exemption from the attorneyclient privilege, whereby a litigant is considered to have waived the privilege by taking a position that cannot be effectively challenged without analyzing privileged information. Cf. OFFENSIVE-USE WAIVER.

Atlantic Reporter A set of regionallawbooks, part of the West Group's National Reporter System, containing every published appellate decision from Connecticut, Delaware, Maine, Maryland, New Hampshire, New Jersey, Pennsylvania, Rhode Island, and Vermont, as well as the decisions of the District of Columbia Municipal Court of Appeals, from 1885 to date. The first series ran from 1885 to 1938; the second series is the current one. - Abbr. A.; A.2d.

at-large election See election at large under ELECTION.

atmatertera (at-may-tar-tar-a), n. [Latin] Civil law. A great-great-great-grandmother's sister. Also termed abmatertera magna (ab-may-tar-tar-a-mag-na).

atort (a-tor), adv. [Law French] Hist. Wrongfully.

atpatruus (at-pa-troo-as), [Latin] Civil law. A brother of a great-great-grandfather.

at-pleasure appointment See pleasure appointment.

at-pleasure appointment- See pleasure appointment under APPOINTMENT (1).

at-risk rules Statutory limitations of a taxpayer's deductible losses to the amount the taxpayer could actually lose, to prevent the taxpayer from sheltering income.

atrocious assault An assault that causes severe wounding or maiming.

atrocious assault- See ASSAULT.

atrocious felony See FELONY.

atrocious felony- A serious, usu. cruel felony involving personal violence. The common practice today is to refer to the specific type of crime alleged (e.g., first-degree murder or aggravated sexual assault).

ats At the suit of.

atsdr abbr. AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY.

attach 1. To annex, bind, or fasten <attach the exhibit to the pleading>. 2. To take or seize under legal authority <attach the debtor's assets>. 3. To become attributed; to adhere <jeopardy attaches when the jury is sworn>.

attache (at-a-shay or a-ta-shay), n. A person who serves as a technical adviser to an embassy.

attachiamenta bonorum (a-tach-ee-a-man-ta-ba-nor-am), n. [Law Latin] Hist. A distress taken on goods and chattels by bailiffs, as security to answer an action for debt.

attachiamentum (a-tach-ee-a-men-tam), n. [Law Latin] An attachment. PI. attachiamenta.

attaching creditor See CREDITOR.

attaching creditor- A creditor who has caused an attachment to be issued and levied on the debtor's property.

attachment 1. The seizing of a person's property to secure a judgment or to be sold in satisfaction of a judgment. Also termed (in civil law) proviSional seizure. Cf. GARNISHMENT; SEQUESTRATION (1).

attachment bond See BOND (2).

attachment bond- A bond that a defendant gives to recover attached property. The plaintiff then looks to the bond issuer to satisfy a judgment against the defendant.

attachment lien See LIEN.

attachment of earnings See attachment of wages under ATTACHMENT (1).

attachment of risk The point when the risk ofloss of purchased goods passes from the seller to the buyer. DCC § 2-509.

attachment of wages The attachment by a plaintiff of a defendant's earnings as an employee. In some jurisdictions, an attachment-of-earnings order requires the defendant's employer to deduct a specified sum or percentage of the defendant's wages or salary and to pay the money into court. The court then sends the money to the plaintiff. Federal law provides a garnishment statute for satisfaction of judgments for child support and alimony. Under this statute, up to 50% of a wage-earner's disposable income can be seized if the wage-earner has another family of dependents and up to 60% if there is only one family. If the obligor is more than three months in arrears, an additional 5% can be seized until the arrearage is paid. 15 USCA § 1673(b)(2). - Also termed attachment ojearnings; wage-Withholding; automatic wage-withholding; wage assignment. Cf. GARNISHMENT; INCOME-WITHHOLDING ORDER.

attachment of wages- See ATTACHMENT (1).

attachment on mesne process See ancillary attachment under ATTACHMENT (3).

attainder (a-tayn-dar), 1. At common law, the act of extinguishing a person's civil rights when that person is sentenced to death or declared an outlaw for committing a felony or treason. 2. Hist. A grandjury proceeding to try whether a jury has given a false verdict. 3. 1he conviction ofa jury so tried. See BILL OF ATTAINDER. - attaint (a-taynt), vb. "The word attainder is derived from the Latin term aUinetus, Signifying stained or polluted, and includes, in its meaning, all those disabilities which flow from a capital sentence. On the attainder, the defendant is disqualified to be a witness in any court; he can bring no action, nor perform any of the legal functions which before he was admitted to discharge; he is, in short, regarded as dead in law." 1 Joseph Chitty, A Practical Treatise on the Criminal Law 725 (2d ed. 1826).

attaint (a-taynt), Maligned or tarnished reputationally; under an attainder for crime.

attaint- A writ to inquire whether a 12-member jury gave a false verdict. If it was so found (by a 24-member jury), the judgment based on the verdict was overturned. The writ was abolished in England in 1826.

attempt 1. The act or an instance of making an effort to accomplish something, esp. without success. 2. Criminal law. An overt act that is done with the intent to commit a crime but that falls short of completing the crime. Attempt is an inchoate offense distinct from the intended crime. Under the Model Penal Code, an attempt includes any act that is a substantial step toward commission of a crime, such as enticing, lying in wait for, or following the intended victim or unlawfully entering a building where a crime is expected to be committed. Model Penal Code § 5.01. Also termed criminal attempt; offer. See DANGEROUS-PROXIMITY TEST; INDISPENSABLE-ELEMENT TEST; LAST-PROXIMATE-ACT TEST; PHYSICAL-PROXIMITY TEST; PREPARA TION; PROBABLE-DESISTANCE TEST; RES IPSA LOQUITUR TEST; PREPARATION; SUBSTANTIAL-STEP TEST. Cf. CONSPIRACY; SOLICITATION (2). "An attempt to commit an indictable offence is itself a crime. Every attempt is an act done with intent to commit the offence so attempted. The existence of this ulterior intent or motive is the essence of the attempt .. , . (Yet] raj Ithough every attempt is an act done with intent to commit a crime, the converse is not true. Every act done with this intent is not an attempt, for it may be too remote from the completed offence to give rise to criminal liability, notwithstanding the criminal purpose of the doer. I may buy matches with intent to burn a haystack, and yet be clear of attempted arson; but if I go to the stack and there light one of the matches, my intent has developed into a criminal attempt." John Salmond, Jurisprudence 387 (Glanville L. Williams ed., 10th ed. 1947). "Attempt ... is the most common of the preliminary crimes. It consists of steps taken in furtherance of an indictable offence which the person attempting intends to carry out if he can.

attempt to assault See attempted assault under ASSAULT.

attempt to attempt A first step made toward a criminal attempt of some sort, such as a failed effort to mail someone a note inciting that person to engage in criminal conduct. As a general rule, courts do not recognize an attempt to commit a crime that is itself an attempt. But some jurisdictions recognize this offense, esp. when the attempted crime is defined to be an independent substantive crime. For example, some jurisdictions recognize an attempted assault if assault is defined as placing a person in apprehension of bodily injury (as opposed to being defined merely as an attempted battery). In this situation, courts have been willing to punish conduct that falls short of the attempted crime but constitutes more than mere preparation to commit it. See attempted assault under ASSAULT.

attempted assault An attempt to commit an assault; an attempted battery that has not progressed far enough to be an assault, as when a person intends to harm someone physically but is captured while or after trying to locate the intended victim in his or her place ofemployment. Traditionally, most commentators held that an attempted assault could not exist because assault was in itself an attempt to commit a crime. Many modern authorities, however, assert that an attempted assault can occur, and that it should be punishable. Also termed attempt to assault. See ATTEMPT TO ATTEMPT. "[I]t is apparent that reference may be made to an 'attempt to assault' without logical absurdity. There is nothing absurd in referring to an attempt to frighten, which would constitute, if successful, a criminal assault in most jurisdictions.... It is not surprising, therefore, that there is a tendency to break away from the ancient view that there is no such offense known to the law as an attempt to commit an assault." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 168 (3d ed. 1982). "By far the most interesting cases in this area are the attempted assault cases. Where assault is defined as intentionally putting another in fear of a battery, there is of course no basis for denying the possibility of an attempt. Where, however, assault is defined as an attempted battery, attempted assault looks very much like the forbidden 'attempt to attempt' a battery. For this reason some courts have held that there is no such crime as attempted assault. other courts, however, have held that an attempted assault can exist, defining it as an attempted battery which has not progressed far enough to be an assault." Arnold H. Loewy, Criminal Law in a Nutshell 223-24 (2d ed. 1987).

attempted assault- See ASSAULT.