Ten arcane legal words and phrases

IN GULLIVERS TRAVELS, Jonathan Swift wrote about lawyers who had a peculiar Cant and Jargon of their own, that no other Mortal can understand. Today, a fair part of legal language is still just as esoteric. Here are some mysterious words explained. Time immemorial: time beyond legal memory. Not how long a late afternoon land law lecture seems to have lasted to its wearied listeners. Simply the formal beginning of English law, September 3, 1189 the accession of Richard I. Today, an ancient custom can have the force of law, such as a right over land, if it can be shown to have existed since time immemorial. The Statute of Westminster in 1275 fixed 1189 as the earliest date from which evidence in land disputes could be considered because then, in 1275, a living man might be able to testify about what his father had told him existed in 1189. Misfeasance: an old term meaning the unlawful performance of a lawful act. For the tort of misfeasance in a public office it is not necessary to prove malice. In a case in 1984, the Ministry of Agriculture banned the importation of French turkeys to protect British producers. The Court of Appeal ruled that it did not matter that the ministry had not acted to harm French interests but merely to protect those in Britain. It was enough that an official knew that he was acting beyond his powers, and that his action would financially injure others. Recuse: to refuse. To reject a judge in a particular case as unsuitable through having a real or apparent interest in the case. Often used in the reflexive form he recused himself. This is an old civil and canon law term. In 1999, at Winchester Crown Court, Judge Patrick Hooton, who has participated in pheasant shoots, recused himself from presiding in a case involving an animal rights protester. The Court of Appeal has said that recusal should not be based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Engross: this does not mean to participate regularly in negotiations during sumptuous legal luncheons and dinners, but simply to prepare a final copy of a deed or contract with all the formal clauses included, prior to its execution (ie, signing) by the parties. Voire dire (noun): a preliminary examination by the judge of a court witness in which he is required to speak the truth in answer to questions put to him. If he appears incompetent, eg, as not of sound mind, he can be rejected as a witness. The word verdict has a similar etymology. Kings in England spoke French for centuries after the Norman conquest in 1066, and more than 10,000 French words were absorbed into the language including many legal words used at court. Chose in action (pronounced shows in action): a legal right to procure a sum of money owed. The financial entitlement is often represented by a cheque. In an A. P. Herbert story, dramatised on television in June, 1967, the fictitious character Albert Haddock wrote a cheque to the Inland Revenue on the side of a cow, and led the cow to the tax offices. Missing the joke, an American

paper The Memphis Press-Scimitar published the case of the negotiable cow as true, since when the myth of this being a real case has often been repeated. Laches (pronounced lay-cheese): an unconscionable delay. The doctrine of laches bars an action if it is stale. Negligence or unreasonable delay in asserting a right will defeat its enforcement. In a dispute between family members about a family business, the Court of Appeal in 2000 rejected a claim by a son where the relevant events involving his father and brothers had occurred between 19 and 37 years before the start of proceedings. Hearsay: a particular kind of evidence. It is evidence of someone other than the person who is testifying in court, or statements in documents offered to prove the truth of what is asserted in court. Although there are exceptions to it, the general rule is that hearsay is inadmissible evidence. In an episode of The Simpsons, the judge rebukes the hapless lawyer Lionel Hutz: Mr Hutz weve been here for four hours. Do you have any evidence at all? To which Hutz optimistically replies: Well, your Honour. Weve plenty of hearsay and conjecture. Those are kinds of evidence. Defalcation: misappropriation of money, or the amount misappropriated. In 1988, the Privy Council dismissed an appeal by Chan Man-sin against his conviction in Hong Kong for theft. While an accountant, Chan had forged cheques for $HK4.8 million on company accounts, depositing them in his accounts. He was charged with theft when his defalcations were discovered. Deed poll: a legal document made by one person, or several, simply expressing a common intention. Contrast an indenture, which is a document made by two or more people agreeing to do something or create obligations. Historically, deeds were short, so two or more copies were written on one piece of parchment. Some words (such as the word cirographum handwriting) were written in between the copies. A waving or indented line was cut through the dividing words. This might afterwards show that the severed deed tallied with the other part or parts. A simple declaration that did not need to match with another undertaking was simply cut evenly from the rest of the parchment or polled. GARY SLAPPER hose (pronounced: "shows", French for "thing"), is a term used in common law tradition in different senses. Chose local is a thing annexed to a place, such as a mill. A chose transitory is something movable, that can be carried from place to place. However, "chose" in these senses is practically obsolete, and it is now used only in the phrases chose in action and chose in possession.

[edit] Chose in action

A chose in action is essentially a right to sue. It is an intangible personal property right recognised and protected by the law, that has no existence apart from the recognition given by the law, and that confers no present possession of a tangible object. Another term is a thing in action.[1][2]

A chose in action, sometimes called a chose in suspense, in its more limited meaning, denotes the right to enforce payment of a debt by legal proceedings, obtain money by way of damages for contract, or receive recompense for a wrong. Less accurately, money that could be recovered is frequently called a chose in action, as is also sometimes the document that represents a title to a chose in action, such as a bond or a policy of insurancethough strictly it is only the right to recover the money. Choses in action were, before the Judicature Acts, either legal or equitable. Where the chose could be recovered only by an action at law, as a debt (whether arising from contract or tort), it was termed a legal chose in action; where the chose was recoverable only by a suit in equity, as a legacy or money held upon a trust, it was termed an equitable chose in action. Before the Judicature Acts, a legal chose in action was not assignable, i.e., the assignee could not sue at law in his own name. To this rule there were two exceptions: (1) the crown had always been able to assign choses in action that are certain, such as an ascertained debt, but not those that are uncertain; and (2) assignments valid by operation of law, e.g., on marriage, death, or bankruptcy. On the other hand, however, by the law merchant, which is part of the law of England, and which disregards the rules of common law, bills of exchange were freely assignable. The consequence was that, with these and certain statutory exceptions (e.g., actions on policies of insurance), an action on an assigned chose in action must have been brought at law in the name of the assignor, though the sum recovered belonged in equity to the assignee. All choses in action being in equity assignable, except those altogether incapable of being assigned, in equity the assignee might have sued in his own name, making the assignor a party as coplaintiff or as defendant. The Judicature Acts made the distinction between legal and equitable choses in action of no importance. The Judicature Act of 1873, s. 25 (6), enacted that the legal right to a debt or other legal chose in action could be passed by absolute assignment in writing under the hand of the assignor. This was later updated by the Law of Property Act 1925 s136.