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common recovery An elaborate proceeding, full of legal fictions, by which a tenant in tail disentailed a fee-tail estate . The action facilitated land transfer by allowing a potential transferee who was barred by law from receiving land to "recover" the land by suing the actual owner. Common recoveries, which were abolished early in the 19th century, were originally concocted by the clergy as a way to avoid the land-conveyance restrictions imposed by mortmain acts. Also termed feigned recovery. See MORTMAIN STATUTE. Cf. CESSIO IN JURE; praecipe quod reddat under PRAECIPE. "Here's how [the common recoveryl worked. S, with the connivance of A, would bring a real action against A claiming falsely that he, B, owned the land and demanding recovery of it. A responded by claiming, just as falsely, that he had acquired the land from C and that C had warranted title to the land. When A demanded of C, also an accom· plice of A, that he defend the title, C admitted falsely that he had, indeed, warranted the title. C allowed B to take a default judgment against A for the recovery of the land, and allowed A to obtain a default judgment against himself, C, for the recovery of land of equal value. The result of this fancy feudal footwork was to leave B with title to the land in fee simple and to leave A with his judgment against C. The judgment against C was viewed by the court as an adequate substitute for the entailed land. But when it came time for 0 or A's lineal heirs to enforce the judgment, it would transpire that C had been selected by A because he had no land at all! (Why else would C have played along?) Did the court have any suspicion that A, B, and C were colluding? Of course they did but how else, in the face of De Donis, could they unshackle land from the chains of the fee tail?" Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 31-32 (2d ed. 1984).

common rule ex parte A court-docket entry reflecting that the case would be decided by a majority vote and would proceed even ifa notified party did not appear. See Billington v. Sprague, 22 Me. 34 (1842).

common scheme See COMMON DESIGN.

common school See public school under SCHOOL.

common school See public school.

common scold See SCOLD.

common serjeant A judicial officer, appointed by the City of London, who helps the recorder in criminal trials.

common stock See STOCK.

common stock A class of stock entitling the holder to vote on corporate matters, to receive dividends after other claims and dividends have been paid (esp. to preferred shareholders), and to share in assets upon liquidation. Common stock is often called capital stock if it is the corporations only class of stock out¬ standing. Also termed ordinary shares. Cf. preferred stock.

common substitution See SUBSTITlUTION (4).

common suit See common plea (1) under PLEA (3).

common tenancy See tenancy in common.

common thief See THIEF.

common traverse See TRAVERSE.

common trust fund See TRUST FUND.

common venture See common adventure under ADVENTURE.

common wall See party wall under WALL.

common without stint A right to graze an unlim" ited number of cattle. 2. A tract of land set aside for the general public's use.

common without stint- See COMMON.

commonable 1. (Of an animal) allowed to graze on common land. 2. (Ofland) capable of being held in common.

commonality test The requirement that members of a group certified as a class in a class-action suit share at least one issue of law or fact whose resolution will affect all or a Significant number of the putative class members. Cf. COMMON-CHARACTER REQUIREMENT.

common-area maintenance charges Fees paid by tenants, usu. on a pro rata basis, to compensate the landlord for the costs of operating, repairing, and maintaining common areas. Such costs include those incurred for cleaning, lighting, and repairs. Abbr. CAMs. - Also termed common-area operating expenses.

common-area operating expenses See COMMON-AREA MAINTENANCE CHARGES.

common-authority rule The principle that a person may consent to a police officer's search of another person's property if both persons use, control. or have access to the property . Under this rule, the consenting person must have been legally able to permit the search in his or her own right, and the defendant must have assumed the risk that a fellow occupant might permit a search. See U.S. v. Matlock, 415 U.S. 164, 171 n.7, 94 S.Ct. 988, 993 n.7 (1974). See THIRD-PARTY CONSENT.

common-bond doctrine The rule that prospective members of a credit union must share some connection (such as common employment) other than a desire to create a credit union.

common-character requirement The rule that for a group of persons to qualify as a class in a classaction lawsuit, the appointment of the class must achieve economies of time, effort, and expense, and must promote uniformity of decision for persons similarly situated, in addition to sharing common questions of fact and law. Cf. COMMONALITY TEST.

common-defeasance bond See penal bond.

common-defeasance bond- See penal bond under BOND (2).

common-disaster clause A provision in a dispositive instrument, such as an insurance policy or a will, that seeks to cover the situation in which the transferor and transferee die in a common disaster.

common-employment doctrine See FELLOW-SERVANT RULE.

common-enemy doctrine The rule that a landowner may repel surface waters as necessary (as during a flood), without having to consider the consequences to other landowners . The doctrine takes its name from the idea that the floodwater is every landowner's common enemy.

commoner 1. An ordinary citizen; one not a peer. 2. Archaic. A member of the House of Commons. 3. Archaic. A common lawyer. 4. Archaic. A person having a right of common that is, a right to pasture on a lord's land. 5. A person who shares a right in common.

common-fund doctrine The principle that a litigant who creates, discovers, increases, or preserves a fund to which others also have a claim is entitled to recover litigation costs and attorney's fees from that fund. Also termed equitable-fund doctrine.

common-interest doctrine See joint-defense privilege under PRIVILEGE (3).

common-interest exception See joint-defense privilege under PRIVILEGE (3).

common-interest privilege See joint-defense privilege under PRIVILEGE (3).

common-knowledge exception The principle that lay testimony concerning routine or simple medical procedures is admissible to establish negligence in a medical-malpractice action. This is a narrow exception in some jurisdictions to the rule that a medicalmalpractice plaintiff must present expert testimony to establish negligence.

common-law action An action governed by common law, rather than statutory, equitable, or civil law.

common-law action- See ACTION (4).

common-law assignment An assignment for the benefit of creditors made under the common law, rather than by statute.

common-law assignment- See ASSIGNMENT (2).

common-law bond A performance bond given by a construction contractor. A common-law bond exceeds the requirements of a statutory performance bond because it provides additional coverage for con-struction projects. Cf. PERFORMANCE BOND.

common-law bond- See BOND (2).

common-law cheat See CHEATING.

common-law contempt See criminal contempt under CONTEMPT.

common-law contempt- See criminal contempt.

common-law copyright See COPYRIGHT.

common-law copyright- A property right that arose when the work was created, rather than when it was published. Under the Copyright Act of 1976, which took effect on January 1, 1978, common-law copyright was largely abolished for works created after the statute's effective date. But the statute retained the common law's recognition that the property right arose when the work was created rather than when it was published. The common-law copyright still applies in a few areas: notably, a common-law copyright received before January 1, 1978 remains entitled to protection. 17 USCA § 301. - Also termed right of first publication.

common-law corporation See corporation by prescription under CORPORATION.

common-law corporation- See corporation by prescription.

common-law crime See CRIME.

common-law crime- A crime that is punishable under the common law, rather than by force of statute. Cf. statutory crime.

common-law dedication See DEDICATION.

common-law dedication- A dedication made without a statute, consisting in the owner's appropriation ofland, or an easement in it, for the benefit or use of the public, and the acceptance, by or on behalf of the land or easement. - Often shortened to dedication.

common-law extortion See EXTORTION (1).

common-law fraud See promissory fraud under FRAUD.

common-law fraud- See promissory fraud.

common-law husband See HUSBAND.

common-law husband- The husband in a common-law marriage; a man who contracts an informal marriage with a woman and then holds himself out to the community as being married to her. See common-law marriage under MARRIAGE (1).

common-law jurisdiction See JURISDICTION.

common-law jurisdiction 1. A place where the legal system derives fundamentally from the English common-law system <England, the United States, Australia, and other common-law jurisdictions>. 2. A courts jurisdiction to try such cases as were cognizable under the English common law <in the absence of a controlling statute, the court exercised commonlaw jurisdiction over those claims>.

common-law lawyer A lawyer who is versed in or practices under a common-law system. Also termed common lawyer (16c).

common-law lien See LIEN.

common-law malice See actual malice (2) under MALICE.

common-law marriage See MARRIAGE (1).

common-law mortgage See deed of trust under DEED.

common-law pleading The system of pleading historically used in the three common-law courts of England (the King s Bench, the Common Pleas, and the Exchequer) up to 1873.

common-law pleading See PLEADING (2).

common-law rule 1. A judge-made rule as opposed to a statutory one. 2. A legal as opposed to an equitable rule. 3. A general rule as opposed to one deriving from special law (such as a local custom or a rule of foreign law that, based on choice-of-Iaw principles, is applied in place of domestic law). 4. An old rule of English law.

common-law seal See SEAL (1).

common-law specialty See contract under seal under CONTRACT; SPECIALTY (1).

common-law state 1. NONCODE STATE. 2. Any state that has not adopted a community-property regime. The chief difference today between a community-property state and a common law state is that in a common-law state, a spouse's interest in property held by the other spouse does not vest until (1) a divorce action has been filed, or (2) the other spouse has died. Cf. COMMUNITY-PROPERTY STATE.

common-law trust See business trust under TRUST (4).

common-law wife See WIFE.

common-law-property state See COMMON-LAW STATE (2).

common-nucleus-of-operative-fact test The doctrine that a federal court will have pendent jurisdiction over state-law claims that arise from the same facts as the federal claims providing a basis for subject-matter jurisdiction . One purpose of this test is to promote judicial economy. "The modern doctrine of pendent jurisdiction, as announced by the Supreme Court in United Mine Workers v. Gibbs (1966), is much broader. Pendent jurisdiction, the Court said, existed whenever 'the state and federal claims derive from a common nucleus of operative fact,' and when considerations of judicial economy dictate having a single trial." David P. Currie, Federal Jurisdiction in a Nutshell 1 06 (3d ed. 1990).

common-return days See dies communes in banco (1) under DIES.

common-situs picketing The illegal picketing by union workers of a construction site, stemming from a dispute with one ofthe subcontractors.

common-situs picketing See PICKETING.

common-source doctrine The principle that a defendant in a trespass to try-title action who claims under a source common to both the defendant and the plaintiff may not demonstrate title in a third source that is paramount to the common source because doing so amounts to an attack on the source under which the defendant claims title.

common-stock equivalent A security that is exchangeable for common stock, and thus is considered to be the same as common stock . Common stock equivalents include certain types of convertible securities, stock options, and warrants.

common-stock fund See MUGTUAL FUND.

common-stock ratio The relationship of outstanding common stock to the corporation's total capitalization. The common-stock ratio measures the relative claims of stockholders to earnings (earnings per share and payout ratio), cash flow (cash flow per share), and equity (book value per share). Cf. PAYOUT RATIO.

commonweal (kom-an-weel). The general welfare; the common good.

commonwealth 1. A nation, state, or other political unit <the Commonwealth of Pennsylvania>. 2. A political unit that has local autonomy but is voluntarily united with the United States <Puerto Rico and the Northern Mariana Islands are commonwealths>. Cf. DEPENDENCY (1); INSULAR AREA; TERRITORY (2). 3. A loose association of countries that recognize one sovereign <the British Commonwealth>. In this context, in Great Britain, the term British has been dropped from British Commonwealth; BrE speakers refer simply to the Commonwealth. Abbr. Commw.; comm. 4. The central (federal) power in Australia. - Abbr. (in sense 4) Cwth.

commonwealth attorney A prosecutor in some jurisdictions, such as Virginia.

commonwealth court See COURT.

commonwealth court- 1. In some states, a court of general jurisdiction. 2. In Pennsylvania, a court that hears suits against the state and reviews decisions of state agencies and officials.

commorancy (kom-a-ran-see). 1. Temporary residency. 2. English law. Permanent residency in a certain place.

commorant (kom-a-rant). 1. A person who dwells in a place temporarily. 2. English law. A person who resides permanently in a certain place.

commorientes (ka-mor-ee-en-teez). [fr. Latin commorior "to die together"]. 1. (pl.) Persons who die at the same time, often of the same cause, such as spouses who die in an accident. 2.Civil law. The rule establishing presumptions of survivorship for purposes of succession regarding such persons. See simultaneous death under DEATH; UNIFORM SIMULTANEOUS DEATH ACT.

commotion See CIVIL COMMOTION

commune (kom-yoon), A community of people who share property and responsibilities.

commune forum (ka-myoo-nee for-am). [Latin "common place ofjustice"]. The seat of the principal English courts, esp. those that do not go on circuit.

commune placitum (ka-myoo-nee plas-a-tam). [Latin "common plea"]. A common plea between persons, as opposed to a plea of the Crown (i.e., a criminal action). PI. communia placito.

commune vinculum (ka-myoo-nee ving-kya-Iam). [Latin "common bond "]. A relationship or tie between persons; esp., the bond between lord and tenant, or the relationship between blood relatives.

communi consensu (ka-myoo-ni kan-sen-s[y]oo). [Latin) By common consent.

communi dividundo See actio de communi dividundo under ACTIO.

communia (ka-myoo-nee-a). [Latin]. Things owned in common, such as running water, the air, and the sea.

communia placita non tenenda in scaccario (ka-myoo-nee-a plas-a-ta non ta-nen-da in ska-kair-ee-oh). [Law Latin "common pleas are not held in the Exchequer"]. A writ directed to the Treasurer and Barons of the Exchequer, forbidding them from holding pleas between common persons, i.e., pleas in which the Crown was not a party.