ia. Euthanasia ofan incompe
tent, and therefore nonconsenting, person.
passive euthanasia. The act of allowing a terminally ill
person to die by either Withholding or withdrawing
life-sustaining support such as a respirator or feeding
tube.
voluntary euthanasia. Euthanasia performed with the
terminally ill person's consent. [Cases: Health
913.]
euthanize (yoo-th,,-nIz), vb. (1873) To put to death by
euthanasia. This term is used chiefly in reference to
animals. Also termed euthanatize.
evacuee. A person who has been evacuated, esp. because
ofa natural disaster or an imminent man-made danger,
such as war. -This loanword from French dates from
World War I. Cf. displaced person under PERSON (1);
REFUGEE.
evaluative fact. See FACT.
Evarts Act (ev-Jrts). An 1891 federal statute that estab
lished the circuit courts ofappeals (now U.S. courts of
appeals) and fixed the contemporary method of federal
appellate review.
evasion. See TAX EVASION.
evasive, adj. (17c) Tending or seeking to evade; elusive;
shifting. _ Ifa pleading requiring a response is evasive,

635
the responding party may move for a more definite
statement. Fed. R. Civ. P. 12(e).
evasive answer. See ANSWER (2).
even date. The same date . This jargonistic phrase is
sometimes used in one instrument to refer to another
instrument with the same date, esp. when both relate to
the same transaction (as a deed and a mortgage).
evenings. Hist. The delivery at evening or night to a cus
tomary tenant of a gratuity in the form of a portion
of the grass, corn, or other crop that the tenant cuts,
mows, or reaps for the lord.
even lot. See round lot under LOT (3).
event-driven audit. See AUDIT.
evergreen contract. See CONTRACT.
evict, vb. (15c) 1. To expel (a person, esp. a tenant), from
real property, usu. by legal process. Also termed put
out. 2. Archaic. To recover (property or title) from a
person by legal process. -evictor, n.
eviction. (16c) The act or process oflegally dispossessing
a person ofland or rental property. See FORCIBLE ENTRY
AND DETAINER. Cf. EJECTMENT. [Cases: Forcible Entrv
and Detainer P6; Landlord and Tenant P287.] ,
actual eviction. (18c) A physical expulsion ofa person
from land or rental property. [Cases: Landlord and
Tenant (;::, 171(1).]
constructive eviction. (1826) 1. A landlord's act of
making premises unfit for occupancy, often with the
result that the tenant is compelled to leave. [Cases:
Landlord and Tenant 172.] 2. The inability of a
land purchaser to obtain possession because ofpara
mount outstanding title . Such an eviction usu. con
stitutes a breach of the covenants of warranty and
quiet enjoyment.
eviction by paramount title. An eviction by judicially
establishing title superior to that under which the
possessor claims. Also termed eviction by title
paramount. [Cases: Landlord and Tenant P 174.]
eviction by title paramount. See eviction by paramount
title.
partial eviction. An eviction, either constructive or
actual, from a portion ofa tenant's premises. [Cases:
Landlord and Tenant P 172(1), 190(2).]
retaliatory eviction. (1966) An eviction nearly
always illegal-commenced in response to a tenant's
complaints or involvement in activities with which
the landlord does not agree. [Cases: Landlord and
Tenant (::::>278,284(1),290(3),298(1).
summary eviction. (1907) An eviction accomplished
through a Simplified legal procedure, without the for
malities of a full trial. [Cases: Landlord and Tenant
P293.]
total eviction. (1832) An eviction that wholly deprives
the tenant of any right in the premises. [Cases:
Landlord and TenantPl72(l), 190(1).] evidence
evidence, n. (14c) 1. Something (including testimony,
documents and tangible objects) that tends to prove or
disprove the existence of an alleged fact <the bloody
glove is the key piece of evidence for the prosecution>.
[Cases: Criminal Law P661; Federal Civil Procedure
P2011; Trial 43.]2. Seefact in evidence under
FACT. 3. The collective mass of things, esp. testimony
and exhibits, presented before a tribunal in a given
dispute <the evidence will show that the defendant
breached the contract>. 4. The body oflaw regulat
ing the admiSSibility ofwhat is offered as proof into
the record of a legal proceeding <under the rules of
evidence, the witness's statement is inadmissible
hearsay that is not subject to any exception>. Also
termed (in sense 4) rules ofevidence. [Cases: Criminal
Law P661; Federal Civil Procedure C::=>2011; Trial
P43.] evidence, vb.
"Evidence is any matter of fact which is furnished to a legal
tribunal, otherwise than by reasoning or a reference to
what is noticed without proof, as the basis of inference in
ascertaining some other matter of fact." James B. Thayer,
Presumptions and the Law ofEvidence. 3 Harv. L. Rev. 141,
142 (1889).
"EVidence, broadly defined, is the means from which an
inference may logically be drawn as to the existence of
a fact; that which makes eVident or plain. Evidence is the
demonstration of a fact; it signifies that which demon
strates, makes clear, or ascertains the truth of the very
fact or point in issue, either on the one side or on the
other. In legal acceptation, the term 'evidence' includes all
the means by which any alleged matter of fact, the truth
of which is submitted to investigation, is established or
disproved. 'Evidence' has also been defined to mean any
species of proof legally presented at the trial of an issue,
by the act of the parties and through the medium of wit
nesses, records, documents, concrete objects, and the
like." 31A c.J.S. Evidence  3, at 67-68 (1996).
adminicular evidence. Rare. Corroborating or auxil
iary evidence presented for the purpose of explaining
or completing other evidence.
admissible evidence. (18c) Evidence that is relevant and
is of such a character (e.g., not unfairly prejudicial,
based on hearsay, or privileged) that the court should
receive it. -Also termed competent evidence; proper
evidence; legal evidence. [Cases: Criminal Law P
661; Federal Civil Procedure P20l1; Trial
autoptic evidence. See demonstrative evidence.
best evidence. (I7c) Evidence of the highest quality
available, as measured by the nature ofthe case rather
than the thing being offered as evidence. The term is
usu. applied to writings and recordings. If the original
is available, it must be offered rather than a copy or
oral rendition. Fed. R. Evid. 1002. Also termed
primary evidence; original evidence. See BEST-EVI
DENCE RULE. Cf. secondary evidence. [Cases: Criminal
Law C----=> 398-403; Evidence G--=> 157-187.]
"In some circumstances, 'best evidence' may mean that
evidence which is more specific and definite as opposed
to that which is merely general and indefinite or descrip
tive. However, 'best evidence' or 'primary evidence' is
variously defined as that particular means of proof which
is indicated by the nature of the fact under investigation
as the most natural and satisfactory, or as that kind of
proof which under any possible circumstances affords the

greatest certainty of the fact in question; or as evidence
which carries on its face no indication that better remains
behind." 32A c.J.S. Evidence  1054, at 417 (1996).
character evidence. (1949) Evidence regarding some
one's general personality traits or propensities, of a
praiseworthy or blameworthy nature; evidence of a
person's moral standing in a community. Fed. R. Evid.
404, 405, 608 . Character evidence is usu., but not
always, prohibited if offered to show that the person
acted in conformity with that character. Cf. reputa
tion evidence. [Cases: Criminal LawC=>375; Evidence
C=> 106; Witnesses C=>333-362.]
circumstantial evidence. (18c) 1. Evidence based on
inference and not on personal knowledge or obser
vation. -Also termed indirect evidence; oblique
evidence. Cf. direct evidence (1). [Cases: Criminal Law
C=>338(2), 552; Evidence C=>100,587.]2. All evidence
that is not given by eyewitness testimony.
"Indirect evidence (called by the civilians, oblique, and more
commonly known as circumstantial evidence) is that which
is applied to the principal fact, indirectly, or through the
medium of other facts, by establishing certain circum
stances or minor facts, already described as evidentiary,
from which the principal fact is extracted and gathered by
a process of special inference ...." Alexander M. Burrill, A
Treatise on the Nature, Principles and Rules ofCircumstan
tial Evidence 4 (1868).
"Some circumstantial evidence is very strong, as when you
find a trout in the milk." Henry David Thoreau, Journal, 11
Nov. 1850, in 2 Journal of Henry D. Thoreau 94 (Bradford
Torrey & Francis H. Allen eds., 1962).
"Evidence of some collateral fact, from which the existence
or non-existence of some fact in question may be inferred
as a probable consequence, is termed circumstantial
evidence." William P. Richardson, The Law of Evidence
111, at 68 (3d ed. 1928).
"Testimonial evidence readily defines itself by its name; it
is any assertion by a human being, offered to evidence the
truth of the matter asserted. Circumstantial evidence is any
and all other evidence. Scientifically the term 'circumstan
tial' is indefensible, for it does not correlate with 'testimo
nial'; a more correct equivalent would be 'nontestimonial.'
But no one has yet invented an acceptable substitute for
'circumstantial.''' John H. Wigmore, A Students' Textbook of
the Law of Evidence 38 (1935).
clear and convincing evidence. (17c) Evidence indicat
ing that the thing to be proved is highly probable or
reasonably certain . This is a greater burden than
preponderance ofthe evidence, the standard applied
in most civil trials, but less than evidence beyond a
reasonable doubt, the norm for criminal trials.
Also termed clear and convincing proof See REASON
ABLE DOUBT. Cf. PREPONDERANCE OF THE EVIDENCE.
[Cases: Evidence C=>596(1).]
communicative evidence. See testimonial evidence.
competent evidence. 1. See admissible evidence. 2. See
relevant evidence.
conclusive evidence. (17c) 1. Evidence so strong as to
overbear any other evidence to the contrary. -Also
termed conclusive proof [Cases: Criminal Law
549; Evidence C=>584(1).] 2. Evidence that so prepon
derates as to oblige a fact-finder to come to a certain
conclusion. concomitant evidence. (17c) Evidence that, at the time
ofthe act, the alleged doer of the act was present and
actually did it.
conjlicting evidence. (1803) Evidence that comes from
different sources and is often irreconcilable.
corroborating evidence. (17c) Evidence that differs
from but strengthens or confirms what other evidence
shows (esp. that which needs support). -Also termed
corroborative evidence. Cf. cumulative evidence.
credible evidence. (17c) Evidence that is worthy of
belief; trustworthy evidence.
critical evidence. (18c) Evidence strong enough that its
presence could tilt a juror's mind. Under the Due
Process Clause, an indigent criminal defendant is usu.
entitled to an expert opinion of the merits ofcritical
evidence. -Also termed crucial evidence.
crucial evidence. See critical evidence.
cumulative evidence. (18c) Additional evidence that
supports a fact established by the existing evidence
(esp. that which does not need further support). Cf.
corroborating evidence. [Cases: Criminal Law C=>675;
Federal Civil Procedure C=>2011; Trial C=>56.]
demeanor evidence. (1909) The behavior and appear
ance of a witness on the witness stand, to be con
sidered by the fact-finder on the issue of credibility.
[Cases: Criminal Law C=>553; Evidence C=>588.]
demonstrative evidence (di-mon-strJ-tiv). (17c)
Physical evidence that one can see and inspect (i.e.
an explanatory aid, such as a chart, map, and some
computer simulations) and that, while of probative
value and usu. offered to clarify testimony, does
not playa direct part in the incident in question .
This term sometimes overlaps with and is used as a
synonym of real evidence. -Also termed illustra
tive evidence; autoptic evidence; autoptic proference;
real evidence; tangible evidence. See nonverbal testi
mony under TESTIMONY. Cf. real evidence; testimonial
evidence. [Cases: Criminal Law C=>404.5-404.85;
Evidence C=> 188-198.]
''There remains a


.5-404.85;
Evidence C=> 188-198.]
''There remains a source of proof, distinct from either
circumstantial or testimonial evidence, viz., what the
tribunal sees or hears by its own senses. Whether this
should be termed 'evidence' or not is a question of words,
open to difference of view. But it is universally conceded
to be an available source of proof. Bentham's term for it,
'real evidence,' came into wide vogue, but is ambiguous.
The term 'autoptic proference' (etymologically meaning
'showing to the tribunal's own vision') is preferable." John
H. Wigmore, A Students' Textbook of the Law of Evidence
39 (1935).
derivative evidence. (1961) Evidence that is discovered
as a result ofillegally obtained evidence and is there
fore inadmissible because of the primary taint. See
EXCLUSIONARY RULE; FRUIT-OF-THE-POISONOUS-TREE
DOCTRINE. [Cases: Criminal Law C=>394.1(3).]
direct evidence. (16c) 1. Evidence that is based on
personal knowledge or observation and that, if true,
proves a fact without inference or presumption.
Also termed positive evidence. Cf. circumstantial

evidence; negative evidence. [Cases: Criminal Law~
549; Evidence ~5S7.] 2. See original evidence (1).
"A little reflection shows that no disputed case will ordinar
ily be proved solely by circumstantial or solely by testimo
nial evidence. Ordinarily there is evidence of both kinds.
The matter has been obscured by the use of the term 'direct
evidence,' - a term sometimes used to mean testimonial
evidence in general, but sometimes also limited to apply
only to testimony directly asserting the fact-in-issue ....
The term 'direct' evidence has no utility." John H. Wigmore,
A Students' Textbook of the Law of Evidence 40 (1935).
documentary evidence. (1Sc) Evidence supplied by a
writing or other document, which must be authen
ticated before the evidence is admissible. [Cases:
Criminal Law ~429-446; Evidence ~325-3S3.]
downright evidence. See DOWNRIGHT EVIDENCE.
evidence aliunde. See extrinsic evidence (1).
evidence-in-chief (1Sc) Evidence used by a party in
making its case-in-chief. [Cases: Criminal Law ~
6S2; Federal Civil Procedure ~2015; Trial ~61.]
exclusive evidence. (1Sc) The only facts that have, or
are allowed by law to have, any probative force at all
on a particular matter in issue.
"[T]here is an important class of rules declaring certain
facts to be exclusive evidence, none other being admis
sible. The execution of a document which requires attesta
tion can be proved in no other way than by the testimony
of an attesting witness, unless owing to the death or some
other circumstance his testimony is unavailable. A written
contract can generally be proved in no other way than by
the production of the writing itself, whenever its produc
tion is possible." John Salmond, Jurisprudence 48S (Glan
ville L. Williams ed., 10th ed. 1947).
exculpatory evidence (ek-sk<ll-p'Hor-ee). (1Sc)
Evidence tending to establish a criminal defendant's
innocence. Fed. R. Crim. P. 16. The prosecution has
a duty to disclose exculpatory evidence in its posses
sion or control when the evidence may be material
to the outcome of the case. See BRADY MATERIAL.
[Cases: Criminal Law~359, 1992.]
expert evidence. (16c) Evidence about a scientific, tech
nical, professional, or other specialized issue given
by a person qualified to testify because offamiliarity
with the subject or special training in the field. -Also
termed expert testimony. Fed. R. Evid. 702-705. See
DAUBERT TEST. [Cases: Criminal Law ~469-494;
Evidence ~505-574.]
extrajudicial evidence. (1Sc) Evidence that does not
come directly under judicial cognizance but neverthe
less constitutes an intermediate link between judicial
evidence and the fact requiring proof.  It includes
all facts that are known to the tribunal only by way
ofinference from some form ofjudicial evidence. See
JUDICIAL NOTICE. Cf. judicial evidence.
extrinsic evidence. (17c) 1. Evidence relating to
a contract but not appearing on the face of the
contract because it comes from other sources, such
as statements between the parties or the circum
stances surrounding the agreement. Extrinsic
evidence is usu. not admissible to contradict or add
to the terms of an unambiguous document. -Also termed extraneous evidence; parol evidence; evidence
aliunde. [Cases: Evidence ~3S4-469.] 2. Evidence
that is not legitimately before the court. Cf. intrinsic
evidence. 3. Evidence that is calculated to impeach a
witness's credibility, adduced by means other than
cross-examination of the witness . The means may
include evidence in documents and recordings and
the testimony of other witnesses. See Fed. R. Evid.
60S(b) & note.
"Under [Federal Rule of Evidence] 608(b), if the witness
denies engaging in untruthful misconduct, the cross
examiner must 'take the witness' answer,' meaning the
questioner may not introduce extrinsic evidence to contra
dict the witness' denial through other witness testimony
or the introduction of impeaching documents, or indeed
any other evidence than the cross-examination, even if the
questioner waits until it is his turn to put on evidence."
Paul F. Rothstein, The Federal Rules of Evidence 312 (3d
ed. 2003).
fabricated evidence. (1Sc) False or deceitful evidence
that is unlawfully created, usu. after the relevant
event, in an attempt to achieve or avoid liability or
conviction. -Also termedfabricated fact.
false evidence. Seefalse testimony under TESTIMONY.
forensic evidence. (1Sc) Evidence used in court; esp.,
evidence arrived at by scientific or technical means,
such as ballistic or medical evidence. [Cases: Evidence
~150.1
foundational evidence. (1946) Evidence that deter
mines the admissibility ofother evidence.
habit evidence. (1921) Evidence of one's regular
response to a repeated specific situation. Fed. R.
Evid. 406. [Cases: Criminal Law ~3S5; Evidence
~13S.]
hearsay evidence. See HEARSAY.
illegally obtained evidence. (1924) Evidence obtained
by violating a statute or a person's constitutional or
other right, esp. the Fourth Amendment guarantee
against unreasonable searches, the Fifth Amendment
right to remain silent, or the Sixth Amendment right
to counsel. [Cases: Criminal Law ~394.1-394.6;
Evidence ~154.]
illustrative evidence. See demonstrative evidence.
immaterial evidence. (1Sc) 1. Evidence lacking in pro
bative value. 2. Evidence offered to prove a matter
that is not in issue. [Cases: Criminal Law ~3S2;
Evidence ~143.]
impeachment evidence. (1S61) Evidence used to under
mine a witness's credibility. Fed. R. Evid. 607-610.
[Cases: Witnesses ~311-409.]
impertinent evidence. See irrelevant evidence.
incompetent evidence. (1Sc) Evidence that is for any
reason inadmissible. [Cases: Criminal Law ~3S5;
Evidence ~14S.]
incriminating evidence. (1S7S) Evidence tending to
establish guilt or from which a fact-trier can infer
guilt.

inculpatory evidence (in-kal-pa-tor-ee). (1849)
Evidence showing or tending to show one's involve
ment in a crime or wrong.
indirect evidence. See circumstantial evidence (1).
indispensable evidence. (18c) Evidence without which
a particular fact cannot be proved.
insufficient evidence. (17c) Evidence that is inadequate
to prove or support a finding of something . This
term usu. describes a case that is not strong enough
to even get to the fact-finder. [Cases: Evidence C=>
584-601.]
intrinsic evidence. (17c) 1. Evidence brought out by
the examination ofthe witness testifying. 2. Evidence
existing within a writing. Cf. extrinsic evidence (2).
irrelevant evidence. Evidence not tending to prove or
disprove a matter in issue. Fed. R. Evid. 401-403.
Also termed impertinent evidence. See IRRELEVANT.
[Cases: Criminal Law C=>338; Evidence C=>99.]
judicial evidence. (17c) Evidence produced in court,
consisting of all facts brought to the attention of or
admitted into evidence before the tribunal. Cf. extra
judicial evidence.
legal evidence. (17c) 1. See admissible evidence. 2. All
admissible evidence, both oral and documentary, of
such a character that it reasonably and substantially
proves the point rather than merely raising suspicion
or conjecture.
material evidence. (17c) Evidence having some logical
connection with the facts ofconsequence or the issues.
Cf. relevant evidence; immaterial evidence. [Cases:
Criminal Law C=>382; Evidence C=> 143.]
mathematical evidence. (18c) 1. Loosely, evidence that
establishes its conclusions with absolute certainty. 2.
Evidence pertaining to mathematical or statistical
matters, or probabilities.
mediate evidence. See secondary evidence.
medical evidence. (18c) Evidence furnished by a doctor,
nurse, or other qualified medical person testifying in
a professional capacity as an expert, or by a standard
treatise on medicine or surgery. [Cases: Criminal Law
C=>473, 476; Evidence C=>555.l0.]
moral evidence. (17c) Loosely, evidence that depends
on a belief, rather than complete and absolute proof.
 Generally, moral evidence is testimonial.
multiple evidence. (1926) Evidence with probative or
other value on more than one issue but usu. admitted
into evidence for one specific purpose . Impeach
ment evidence, for example, may not be probative on
a particular issue but may nonetheless affect the jury's
perceptions ofseveral issues.
negative evidence. (17c) Evidence suggesting that an
alleged fact does not exist, such as a witness's tes
tifying that he or she did not see an event occur .
Negative evidence is generally regarded as weaker
than positive evidence because a positive assertion
that a witness saw an event is a stronger statement than an assertion that a witness did not see it. But
a negative assertion will sometimes be considered
positive evidence, depending on the witness's oppor
tunity to see the event. For instance, testimony that
the witness watched the entire game and saw no riot
in the stands is stronger than testimony stating only
that the witness did not see a riot. -Also termed
negative testimony. Cf. direct evidence (1). [Cases:
Criminal Law C=>387; Evidence C=> 147,586.]
newly discovered evidence. (18c) Evidence existing at
the time of a motion or trial but then unknown to a
party, who, upon later discovering it, may assert it as
grounds for reconsideration or a new trial. See Fed. R.
Civ. P. 60(b). [Cases: Criminal Law C=>938; Federal
Civil Procedure C=>928, 2350, 2655; New Trial C=>
99.]
no evidence. See NO EVIDENCE.
oblique evidence. See circumstantial evidence (1).
opinion evidence. (1955) A witness's belief, thought,
inference, or conclusion concerning a fact or facts.
Fed. R. Evid. 701-705. See OPINION (3); OPINION
RULE. [Cases: Criminal Law C=>448; Evidence
470-574.]
"In a sense all testimony to matter of fact is opinion
evidence; i.e. it is a conclusion formed from phenomena
and mental impressions.' James B. Thayer, A Preliminary
Treatise on Evidence at the Common Law 524 (1898).
oral evidence. See testimonial evidence.
original evidence. (18c) 1. A witness's statement that
he or she perceived a fact in issue by one of the five
senses, or that the witness was in a particular physical
or mental state. -Also termed direct evidence. Cf.
HEARSAY. 2. See best evidence.
parol evidence (p;:J-rohl or par-;:Jl). (18c) 1. Evidence
of oral statements. [Cases: Criminal Law C=>447;
Evidence C=>384-469.] 2. See extrinsic evidence (1).
See PAROL-EVIDENCE RULE.
partial evidence. (17c) Evidence that establishes one
ofa series offacts.
personal evidence. See TESTIMONY.
positive evidence. See direct evidence (1).
preappointed evidence. (1850) Evidence prescribed in
advance (as by statute) for the proof ofcertain facts.
preliminary evidence. (18c) Evidence that is necessary
to begin a hearing or trial and that may be received
conditionally in anticipation ofother evidence linking
it to issues in the case. Fed. R. Evid. 104. [Cases:
Evidence C=> 117; Federal Civil Procedure C=>2014.]
presumptive evidence. (17c) 1. Evidence deemed suf
ficient to establish another fact unless discredited
by other evidence. [Cases: Evidence C=>53-89.] 2.
Archaic. Circumstantial evidence as distinct from
testimonial evidence. -Also termed probable
evidence.
prima facie evidence (pn-m;:J fay-sh;:J). (18c) Evidence
that will establish a fact or


ie evidence (pn-m;:J fay-sh;:J). (18c) Evidence
that will establish a fact or sustain a judgment unless

639 evidence
contradictory evidence is produced. [Cases: Evidence
(>584(1).]
-The legislative branch may create an evidential presump
tion, or a rule of 'prima facie' evidence, i.e., a rule which
does not shut out evidence, but merely declares that
certain conduct shall suffice as evidence until the opponent
produces contrary evidence." John H. Wigmore, A Students'
Textbook of the Law of Evidence 237 (1935).
primary evidence. See best evidence.
privileged evidence. (1897) Evidence that is exempt
from production to an opposing party or tribunal
(with certain, limited exceptions) because it is covered
by one or more statutory or common-law protections,
such as the attorney-client privilege. See privileged
communication under COMMUNICATION. [Cases:
Privileged Communications and Confidentiality
1,2,100.]
probable evidence. See presumptive evidence.
probative evidence (proh-b;Hiv). (1877) Evidence that
tends to prove or disprove a point in issue. Cf. relevant
evidence. [Cases: Criminal Law (>338; Evidence (>
99.]
proffered evidence (prof-ard). (1904) 1. Evidence that
is offered to the court to obtain a ruling on its admis
sibility. 2. Evidence whose admissibility depends on
the existence or nonexistence of a preliminary fact.
[Cases: Evidence (::::, 117; Federal Civil Procedure C=J
2011.]
proper evidence. See admissible evidence.
prospectant evidence (pra-spek-tant). (1924) Evidence
that, before someone does an act, suggests that the
person might or might not do the act.  This evidence
typically falls into any of five categories: (1) moral
character or disposition, (2) physical and mental
capacity, (3) habit or custom, (4) emotion or motive,
and (5) plan, design, or intention.
Queen's evidence. English law. Testimony provided
by one criminal defendant, usu. under a promise of
pardon, against another criminal defendant. -Also
termed (when a king reigns) King's evidence. See
state's evidence.
real evidence. (17c) 1. Physical evidence (such as
clothing or a knife wound) that itself plays a direct
part in the incident in question. Also termed
physical evidence. [Cases: Criminal Law (>405;
Evidence C=:: 188.] 2. See demonstrative evidence.
"Anything which is believed for any other reason than that
someone has said so, is believed on real evidence." John
Salmond, jurisprudence 480 (Glanville L. Williams ed., 10th
ed. 1947).
rebuttal evidence. (1859) Evidence offered to disprove
or contradict the evidence presented by an opposing
party. Rebuttal evidence is introduced in the rebut
ting party's answering case; it is not adduced, e.g.,
through cross-examination during the case-in-chief
of the party to be rebutted. Also termed rebutting
evidence. [Cases: Criminal Law (>683; Federal Civil
Procedure C=~)2015; Trial relevant evidence. (18c) Evidence tending to prove
or disprove a matter in issue. Relevant evidence
is both probative and material and is admissible
unless excluded by a spedfic statute or rule. Fed. R.
Evid. 401-403. -Also termed competent evidence.
Cf. material evidence; probative evidence. [Cases:
Criminal Law C~338; Evidence
reputation evidence. (1888) Evidence of what one is
thought by others to be . Reputation evidence may
be introduced as proof of character when character
is in issue or is used circumstantially. Fed. R. Evid.
405(a). -Also termed reputalional evidence. Cf.
character evidence. [Cases: Criminal Law C::;:)375;
Evidence C;;) 106; Witnesses
retrospectant evidence (re-tra-spek-t<Jnt). (1929)
Evidence that, although it occurs after an act has been
done, suggests that the alleged doer ofthe act actually
did it <when goods have been stolen, and the thief
is sought, a person's later possession of those goods
amounts to retrospectant evidence that this person
took them >. -Also termed traces.
satisfactory evidence. (l7c) Evidence that is sufficient
to satisfy an unprejudiced mind seeking the truth.
Also termed sufficient evidence; satisfactory proof
[Cases: Evidence (::::'584(1).]
scientific evidence. (17c) Fact or opinion evidence
that purports to draw on specialized knowledge of
a science or to rely on scientific principles for its evi
dentiary value. See DAUBERT TEST. [Cases: Criminal
Law (::::>388; Evidence C=:: 150,505-574.]
secondary evidence. (17c) Evidence that is inferior
to the primary or best evidence and that becomes
admissible when the primary or best evidence is lost
or inaccessible . Examples include a copy of a lost
instrument or testimony regarding a lost instrument's
contents. -Also termed mediate evidence; mediate
testimony; substitutionary evidence. See Fed. R. Evid.
1004. Cf. best evidence. [Cases: Criminal Law ~~398,
403; Evidence
secondhand evidence. See HEARSAY.
secret evidence. (1983) Classified information that
may be used against a defendant in an immigration
proceeding but withheld from the defendant, the
defendant's lawyer, and the public on national-secu
rity grounds . The use of secret evidence was made
easier under the Anti-Terrorism and Effective Death
Penalty Act of 1996. [Cases: Aliens, Immigration, and
Citizenship
signature evidence. Highly distinctive evidence of
a person's prior bad acts . While ordinarily inad
missible, signature evidence will be admitted if it
shows, for example, that two crimes were committed
through the same planning, design, scheme, or modus
operandi, and in such a way that the prior act and the
current act are uniquely identifiable as those of the
defendant. See Fed. R. Evid. 404(b). [Cases: Criminal
Law (>369.15; Evidence (>129(5), 133.]

640 evidence by inspection
slight evidence. (ISc) A small quantity ofevidence; esp.,
the small amount of evidence sufficient to remove a
presumption from a case or for a rational fact-finder
to conclude that something essential has not been
established beyond a reasonable doubt. See SLIGHT
EVIDENCE RULE.
state's evidence. (1SS6) Testimony provided by one
criminal defendant -under a promise ofimmunity
or reduced sentence -against another criminal
defendant. See TURN STATE'S EVIDENCE.
substantial evidence. (17c) 1. Evidence that a rea
sonable mind could accept as adequate to support
a conclusion; evidence beyond a scintilla. See SUB
STANTIAL-EVIDENCE RULE. [Cases: Administrative
Law and Procedure ~791; Evidence ~597.] 2.
The product of adequately controlled investigations,
including clinical studies, carried out by qualified
experts that establish the effectiveness ofa drug under
FSA regulations. 21 USCA  355(e).
substantive evidence (s;}b-st;}n-tiv). Evidence offered to
help establish a fact in issue, as opposed to evidence
directed to impeach or to support a witness's credibil
ity.[Cases: Criminal Law~337; Evidence ~266.]
substitutionary evidence. See secondary evidence.
sufficient evidence. See satisfactory evidence.
tainted evidence. (IS76) Evidence that is inadmissi
ble because it was directly or indirectly obtained by
illegal means. See FRUIT-OF-THE-POISONOUS-TREE
DOCTRINE. [Cases: Criminal Law ~394; Evidence
~154.]
tangible evidence. Physical evidence that is either real
or demonstrative. See demonstrative evidence; real
evidence.
testimonial evidence. (1S31) A person's testimony
offered to prove the truth ofthe matter asserted; esp.,
evidence elicited from a witness. -Also termed com
municative evidence; oral evidence. Cf. demonstrative
evidence. [Cases: Trial ~43.]
"An assertion is testimonial evidence whether made out of
court or in court, if it is offered with a view to persuading
the tribunal of the matter asserted." John H. Wigmore, A
Students' Textbook of the Law of Evidence 120 (1935).
traditionary evidence. (1Sc) Evidence derived from a
deceased person's former statements or reputation.
Traditionary evidence is admissible to prove ancestry,
ancient boundaries, or similar facts, usu. when no
living witnesses are available to testify. [Cases: Bound
aries ~35(2); Evidence ~274, 302.]
unwritten evidence. (ISc) Evidence given orally, in
court or by deposition.
evidence by inspection. See demonstrative evidence
under EVIDENCE.
evidence code. A relatively comprehensive set of statu
tory provisions or rules governing the admissibility of
evidence at hearings and trials.
evidence ofdebt. See SECURITY (4).
evidence of indebtedness. See SECURITY (4). evidence ofinsurability. Information -such as medical
records or a medical examination -that an insurer
may require to establish a potential insured's qualifi
cation for a particular insurance policy. [Cases: Insur
ance ~2052.]
evidence of title. (17c) The means by which the own
ership of land is satisfactorily demonstrated within a
given jurisdiction. See DEED (2), (3). [Cases: Property
~9.]
"There are four kinds of evidence of title: abstract and
opinion, certificate oftitle, title insurance and Torrens cer
tificate. The certificate of title is used extenSively in the
Eastern states, and some Southern states. In urban centers
in a great many sections of the country, title insurance
occupies a dominant position in real estate transactions.
In farm areas the abstract and opinion method is common.
To a great extent, the acceptability of a particular kind
of evidence of title depends on the local custom." Robert
Kratovil, Real Estate Law 170 (6th ed. 1974).
evidence rules. See EVIDENCE (4).
evidencing feature. Evidence. A group ofcircumstances
that, when taken as a whole, form a composite feature
that can be reliably associated with a single object .
This term appears more frequently in criminal cases
than in civil. In criminal cases, it usu. refers to evidence
that establishes a perpetrator's identity, but in civil
cases it often refers to evidence that an event did or
did not occur. -Also termed evidencing mark; evi
dential mark.
evidencing mark. See EVIDENCING FEATURE.
evidentia (ev-i-den-shee-;}), n. [Law Latin] Evidence.
evidential, adj. Of, relating to, relying on, or constituting
evidence; EVIDENTIARY (1).
evidential fact. See evidentiary fact (2) under FACT.
evidential mark. See EVIDENCING FEATURE.
evidentiary (ev-i-den-sh;}-ree), adj. (1SlO) 1. Having the
quality ofevidence; constituting evidence; evidencing.
2. Pertaining to the rules of evidence or the evidence
in a particular case.
evidentiary fact. See FACT.
evidentiary hearing. See HEARING.
evince, vb. (17c) To show, indicate, or reveal <in abstain
ing from the vote, Hariden evinced misgivings about
the nomination>.
evocation (ev-<"l-kay-sh:m). French law. The act of with
drawing a case from an inferior court and bringing it
before a superior court.
evocative trademark. See suggestive trademark under
TRADEMARK.
evolution statute. See ANTI-EVOLUTION STATUTE.
ewage (yoo-ij), n. [Law French] Hist. A toll paid for water
passage.
ex. (ISc) 1. Former <ex-wife>. 2. Without <ex rights>. 3.
From <ex cathedra>. 4. (usu. cap.) abbr. Exhibit <Ex.
4>. 5. abbr. Example <this is but one ex. ofseveral that
might be cited>. 6. (cap.) abbr. EXCHEQUER.

641
ex abundanti (eks ab-an-dan-tI). [Latin "out of abun
dance"] Archaic. Abundantly; superfluously.
ex abundanti cautela (eks ab-an-dan-tJ kaw-tee-la).
[Latin] Archaic. Out ofabundant caution; to be on the
safe side.
exacta diligentia. See DILIGENTIA.
exaction, n. (15c) 1. The act ofdemanding more money
than is due; extortion. 2. A fee, reward, or other com
pensation arbitrarily or wrongfully demanded. [Cases:
Extortion and Threats (;:=-7,25.1.] -exact, vb.
exactor. 1. Civil law. A tax collector; a gatherer or receiver
ofmoney. 2. Hist. A collector ofpublic funds; a tax col
lector.
ex adverso (eks ad-var-soh). [Latin] On the other side .
This term is sometimes applied to opposing counsel.
ex aequitate (eks ee-kwa-tay-tee). [Latin] According to
equity; in equity.
ex aequo et bono (eks ee-kwoh et boh-noh). [Latin]
According to what is equitable and good . A decision
maker (esp. in international law) who is authorized to
decide ex aequo et bono is not bound by


. A decision
maker (esp. in international law) who is authorized to
decide ex aequo et bono is not bound by legal rules and
may instead follow equitable principles. For example.
article 38(2) of the Statute of the International Court
of Justice provides that the Court may decide a case
ex aequo et bono if the parties agree thereto." 37 ILM
999. [Cases: Equity~54.]
ex-all. Without all rights and privileges . Securities sold
ex-all reserve all rights and privileges, such as pending
dividends, to the seller.
ex altera parte (eks al-tar-a [or awl-J pahr-tee). [Latin]
Of the other part.
examen (eg-zay-m;m), n. [Law Latin] A trial; investiga
tion.
examen computi (eg-zay-man bm-pyoo-tI). [Latin] The
balance of an account.
examination. (14c) 1.1he questioning of a witness under
oath. See DIRECT EXAMINATION; CROSS-EXAMINATION.
[Cases: Witnesses (>-:>224-228.] 2. Bankruptcy. The
questioning ofa debtor, esp. at the first meeting ofcred
itors, concerning such matters as the bankrupt's debts
and assets. [Cases: BankruptcyC=>3040.]3. An inquiry
made at the U.S. Patent and Trademark Office, upon
application for a patent, into the alleged invention's
novelty and utility, and whether it interferes with any
other pending application or in-force patent. [Cases:
Patents 104.] 4. Banking. The government's fact
finding mechanism for determining the soundness of
a bank's finances and management. [Cases: Banks and
Banking 17,235.] 5. Insurance. A periodic investi
gation by a state insurance commission into the affairs
and soundness of an insurance company licensed in
that state. [Cases: Insurance 1048.]
preliminary examination. Patents. A patent office's
initial review of an application, usu. to see whether
the specification is properly set out and to prepare a
search report. Patents C-~104.] examining board
4. PRELIMINARY HEARING. 5. A test, such as a bar exam
ination.
examination before trial. See DEPOSITION (1).
examination-in-chief. See DIRECT EXAMINATION.
examination on the voir dire. See VOIR DIRE.
examination pro interesse suo (proh in-t<'Jr-es-ee sly]
oo-oh). [l.atin "according to his interest"] A judicial
inquiry into the merits of a person's claim to seques
tered property. [Cases: Sequestration
"In practice. an examination pro interesse suo is an inquiry
described as follows: When any person claims to be entitled
to an estate or other property sequestered, whether by
mortgage or judgment, lease or otherwise, or has a title
paramount to the sequestration, he should apply to the
court to direct an inquiry whether the applicant has any
and what interest in the property sequestered." 79A c.J,S.
Sequestration  31. at 589 (1995).
examination system. Patents. A patent system in which
an invention is subjected to official scrutiny to deter
mine whether it qualifies for patent protection. Cf. REG
ISTRATION SYSTEM.
examined copy. See COpy,
examiner. (16c) 1. One authorized to conduct an exami
nation; esp,. a person appointed by the court, esp. a
court of equity, to administer an oath and take testi
mony. -Also formerly termed examiner ill chancery.
See MASTER (2). 2. A patent officer responsible for deter
mining the patentability ofan invention submitted to
the patent office. [Cases: Patents 104.] 3. MEDICAL
EXAMlNER. 4. BANK EXAMINER.
examiner in chancery. See EXAMINER (1).
examiner-in-chief. Hist. Patents. 1. A member of the
quasi-judicial body in the U.S. Patent and Trademark
Office that formerly heard appeals ofinterference deci
sions and patent-application rejections. 2. (pl. cap.) The
body comprising those members; the predecessor ofthe
Board of Appeals, the Board of Patent Interferences,
and the present-day Board of Patent Appeals and Inter
ferences.
examiner's amendment. Patents & Trademarks. Minor
changes in the form ofa patent or trademark applica
tion, made by the examiner rather than the applicant
 For example, the examiner may correct spelling and
grammar rather than wait for the applicant to respond.
A patent examiner may also amend or cancel claims if
authorized by the applicant. [Cases: Patents C= 104;
Trademarks (>~1287.]
examiner's answer. Patents. The brief filed by a patent
examiner with the Board of Patent Appeals and Inter
ferences to rebut the arguments in an appeal brief and
to defend the examiner's decision to reject the applica
tion. Cf appeal briefunder BRIEF. [Cases: Patents
l11.J
examining authority. See AUTHORITY (3).
examining board. (1851) An appointed group ofpublic
officials responsible for conducting the tests required
by those applying for occupational and profeSSional

642 examining court
licenses. Also termed board ofexaminers. [Cases:
Licenses
examining court. See COURT.
examining group. Patents. A subunit ofthe Patent Office
consisting ofpatent examiners who specialize in a par
ticular area oftechnology. [Cases: Patents (::::::0 104.]
examining trial. See PRELIMINARY HEARING.
example. Patents. A detailed description of an inven
tion's embodiment.  Alternatives without detail may
be referred to as by example. Also termed specific
example; working example. [Cases: Patents (::::::099.]
exannual roll (eks-an-yoo-al). Rist. In England, a roll
into which illeviable fines and desperate debts were
transcribed and that was annually read to the sheriff
upon his accounting to see what might be gotten.
ex ante (eks an-tee), adj. & adv. [Latin "from before"]
(1937) Based on assumption and prediction, on how
things appeared betorehand, rather than in hindSight;
subjective; prospective <from an ex ante perspective>.
Cf. EX POST.
ex arbitrio judicis (eks ahr-bi-tree-oh joo-di-sis).
[Latin] Civil law. At, from, or upon the discretion of
the judge.
ex assensu curiae (eks a-sen-s[y]oo kyoor-ee-ee or -I).
[Latin] By or with the consent of the court.
ex assensu patris (eks a-sen-sly]oo pay-tris). [Latin "by
or with the consent of the father"] Rist. A species of
dower ad ostium ecclesiae, under which a husband, by
his father's express consent, would endow his wife with
a parcel ofthe father's lands . This type ofdower was
abolished in England by the Dower Act (1833). St. 3 &
4 Will. 4, ch. 105,  13.
ex assensu suo (eks a-sen-s[y]oo s[y]oo-oh). [Latin "with
his assent"] Formal words in a default judgment for
damages.
ex auditu (eks aw-di-t[y]oo). [Latin] Rist. By hearsay;
by report.
ex bonis (eks boh-nis). [Latin] Civil law. Ofor relating to
goods or property.
ex bonis maternis (eks boh-nis ma-tdf-nis). [Latin] Rist.
Out of the goods succeeded to through the mother.
ex bonis paternis (eks boh-nis pa-tar-nis). [Latin] Rist.
Out of the goods succeeded to through the father.
excambiator (eks-kam-bee-ay-tar), n. [Latin] Rist. An
exchanger of lands; a broker.
excambion (eks-kam-bee-ahn), n. Scots law. 1. The
exchange of one piece of property for another, esp. an
exchange ofheritable estates. 2. EXCAMBIUM (1).
excambium (eks-kam-bee-am), n. [Latin] 1. An
exchange; a place where merchants meet to transact
their business. -Also termed (in Scots law) excam
bion. 2. An equivalent in recompense; a recompense in
lieu ofdower ad ostium ecclesiae.
ex capite (eks kap-i-tee). [Latin] On the ground of; by
reason of. See LIEGE POUSTIE. ex capite doli (eks kap-i-tee doh-h). [Law Latin] Rist.
On the ground ofdole; for the reason offraud. Also
termed ex capite fraudis.
ex capite inhibitionis (eks kap-i-tee in-hi-bish-ee-oh
nis). [Law Latin] Scots law. On the ground ofinhibition.
See INHIBITION (4).
ex capite interdictionis (eks kap-i-tee in-tar-dik-shee
oh-nis). [Law Latin] Rist. On the ground of interdic
tion. See INTERDICTION.
ex capite lecti (eks kap-i-tee lek-tI). [Law Latin] Scots
law. On the ground ofdeathbed . Under some cir
cumstances, a legal heir could overturn a deed that a
grantor made to the heir's detriment if the deed were
made within 60 days before the grantor's death.
ex capite metus (eks kap-i-tee ruee-tas). [Law Latin] Scots
law. On the ground of fear.  A transaction could be
rescinded if it were induced by serious threats.
ex capite minorennitatis et laesionis (eks kap-i-tee min
or-en-i-tay-tis et lee-z[h]ee-oh-nis). [Law Latin] Scots
law. On the ground ofminority and lesion . The phrase
appeared in reference to a ground upon which a minor
could be restored against deeds granted by him during
his minority. The phrase also referred to a basis upon
which a minor could set aside a deed (on the ground of
lesion) if the deed were substantially onerous.
ex cathedra (eks ka-thee-dra or kath-a-dra), adv. &adj.
[Latin "from the chair"] (l7c) By virtue ofone's high
office or position; with authority <ex cathedra pro
nouncements>.
ex causa (eks kaw-za). [Latin] By title.
ex causa lucrativa (eks kaw-za loo-kr .. -tI-va). [Latin]
Rist. From a lucrative source; gratUitously.
ex causa mandati (eks kaW-Zd man-day-tr). [Latin]
Scots law. On account ofthe mandate; because ofthe
mandate.
"A mandatory is entitled to claim from the mandant
reimbursement of all moneys disbursed, as well as relief
from all obligations incurred, ex causa manclati i.e., on
account of the matter which the mandate authorised to be
done or performed."John Trayner, Trayner's Latin Maxims
195 (4th ed. 1894).
ex causa potestatis (eks kaw-za poh-tes-tay-tis). Roman
law. Because of his position of authority . Certain
men could not marry women who were subject to their
guardianship or control, and the reason was said to be
ex causa potestatis.
"Certain impediments to marriage in the civil law were
described as being ex causa potestatis. Th us a tutor or
curator could not marry his female ward until his office
had terminated, or unless his accounts had been passed.
A person administering a government or public office in a
province, and the members of his family, were not permit
ted to intermarry with a person domiciled in his province,
unless they had been betrothed to each other before he
had accepted the office." Alexander Wood Renton & George
Grenville Phillimore, The Comparative Law ofMarriage and
Divorce 6 (1910).
excellency. (usu. cap.) (16c) A title of honor given to
certain high officials or dignitaries, such as gover

643 	 exceptio
nors, ambassadors, and Roman Catholic bishops or
archbishops.
Excelsior list. Labor law. A roster of the names and
addresses of employees who are eligible to vote in a
union election. _ The NLRB requires an employer to
file the list within seven days after the employer and a
union reach a consent-election agreement. Excelsior
Underwear, Inc., 156 N.L.R.B. 1236 (1966). [Cases:
Labor and Employment 1191.]
exceptio (ek-sep-shee-oh), n. [Latin] Hist. 1. An excep
tion, plea, or objection. 2. Roman & civil law. A defen
dant's plea admitting the claim in principle but alleging
facts or legal provisions that negate it in this instance.
3. A defense to a claim that is justly brought but that
unjustly accuses the particular defendant named. PI.
exceptiones (ek-sep-shee-oh-neez).
exceptio dilatoria (dil-d-tor-ee-d). A dilatory excep
tion; an exception that defeated the action for a time
and created a delay, such as an agreement not to sue
within a certain time.
exceptio doli 	 mali (doh-ll mal-I). An exception,
defense, or plea of fraud. Sometimes shortened to
exceptio doli.
exceptio dominii (dd-min-ee- I). A claim of ownership
by the defendant in an action to recover property.
exceptio dotis cautae non tlumeratae (doh-tis kaw-tee
non n[y]oo-md-ray-te


autae non tlumeratae (doh-tis kaw-tee
non n[y]oo-md-ray-tee). A defense to an action for
the restitution of dowry, asserting that, although
promised, dowry was never paid.
exceptio in factum (in fak-t ..m). An exception on the
facts; an exception or plea founded on the peculiar
circumstances of a case.
exceptio in personam (in p ..r-soh-nJm). A plea or
defense of a personal nature that only the person to
whom it is granted by law may assert.
exceptio in rem (in rem). A plea or defense that is not
of a personal nature but is connected with the legal
circumstances on which the suit is founded, and that
may therefore be alleged by any party in interest, such
as an heir or surety ofthe proper or original debtor.
exceptio jurisjurandi (joor-is-juu-ran-dr). An excep
tion of oath; an exception or plea that the matter had
been sworn to. -This kind of exception was allowed
if a debtor, at a creditor's instance, had sworn that
nothing was due the creditor, but the creditor sued
anyway.
exceptio metus (met-ds). An exception, defense, or
of fear or compulsion.
exceptio non adimpleti contractus (non ad-im-plee
tI k ..n-trak-tds). An exception in a contract action
involving mutual duties or obligations, to the effect
that the plaintiff may not sue if the plaintiff's own
obligations have not been performed.
exceptio non numeratae pecuniae (ek-sep-shee-oh non
n[y]oo-m ..-ray-tee pi-kyoo-nee-ee). [Latinl Roman
law. An exception or defense that money was not
paid. 'This was one of the Roman law exceptions, founded on the
obligatio literarum of the Romans, The obligatio literarum
was constituted by a writing, the granter of which acknowl
edged receipt from the creditor of a certain sum of money.
But as the obligation was sometimes granted before the
money was advanced, spe numerandae pecuniae, by the
Roman law, the obligation, until the lapse of two years
after its date and delivery, did not prove the receipt of the
money; and the debtor against whom, within that time, a
demand for repayment was made, might plead the exceptio
non numeratae pecuniae; that is, that the money of which
repayment was demanded, was truly never advanced. The
exception was sufficient to elide the demand, unless the
creditor proved that he had advanced the money," William
Bell, Bell's Dictionary and Digest of the Law ofScotland 426
(George Watson ed., 7th ed, 1890).
exceptio non solutae pecuniae (non sJ-Ioo-tee pi
kyoo-nee-ee). A plea that the debt at issue in the suit
had not been discharged by payment (as the adverse
party alleged), notwithstanding the existence of a
receipt or acquittance reflecting payment. Cf. excep
tion pecuniae non numeratae.
exceptio pacti conventi (pak-tI-kdn-ven-tI). An excep
tion of compact; a defense or plea that the plaintiff had
agreed not to sue.
exceptio pecuniae non numeratae (pi-kyoo-nee-ee
non n[y]oo-md-ray-tee). An exception or plea of
money not paid; a defense by a party who was sued
on a promise to repay money that was never received
from the plaintiff. Cf. exceptio non solutae pecuniae;
PECUNIA NON NUMERATA.
exceptio peremptoria (pdr-emp-tor-ee-J). A peremp
tory exception that forever destroyed the subject
matter or ground of the action, such as the exceptio
doli mali and the exceptio metu5. -Also termed
exceptio perpetua.
exceptio plurium concubentium (ploof-ee-Jm kon
kyoo-ben-shee-Jm). Rare. The plea or defense in a
paternity action that the plaintiff had several lovers
around the time of conception.
exceptio rei judicatae (ree-I joo-dd-kay-tee). An
exception or plea of matter adjudged; a plea that the
subject matter of the action had been determined in
a previous action.
exceptio rei venditae et traditae (ree-I ven-d~-tee
et trad-d-tee). An exception or plea of the sale and
delivery [of a thing]. _ This exception presumes a
valid sale but, because no one can transfer a right
greater than what is possessed, no valid transfer of
property occurred, yet the real owner is nonetheless
estopped from contesting the sale.
exceptio senatusconsulti Macedoniani (sd-nay-t;)s
k;m-s;)l-tI mas-d-doh-nee-ay-nr). A defense to an
action for the recovery of money loaned, on the
ground that the loan was made to a person who was
under another person's paternal power . This defense
is so named from the decree of the senate that forbade
the recovery of such loans.
exceptio senatusconsulti Velleiani (sd-nay-tds-bn
S;)I-tl vel-ee-ay-nr). A defense to an action on a
contract of suretyship, on the ground that the surety

644 exception
was a woman and thus incapable ofbecoming bound
for another.  This defense is so named from the
decree of the senate forbidding such sureties.
exceptio temporis (tem-p;:>-ris). An exception or plea
that the time prescribed by law for bringing a particu
lar action has expired.
exception, n. (14c) L A formal objection to a court's
ruling by a party who wants to preserve an overruled
objection or rejected proffer for appeal <the prosecu
tor stated her exception to the court's ruling disallow
ing the witness's testimony> . To make an exception
or objection, attorneys sometimes say, "I except" or "I
object." Exception properly refers only to an objection
made after an initial objection or proffer is made and
overruled. In most courts, an exception is no longer
required to preserve the initial objection. [Cases:
Appeal and Error C=248-280; 1048-1060; Pleading
C=228-228.23.]
The following quotation reflects former practice: "The
exception must be distinguished from the objection. Many
counsel are heard carelessly saying 'I except' when the
thing they are dOing is 'I object.' The exception serves an
entirely distinct purpose from the objection, ~a double
purpose, in fact. It warns the judge and the other party that
the excepter is not satisfied with the ruling and takes issue
with a view to appeal; and it sums up and preserves the
precise terms of the ruling. The proponent of the evidence
is the excepter if the ruling excludes the evidence; but if
it admits the evidence, the opponent of the evidence is
the excepter. Thus the excepter and the objector are not
necessarily the same parties." John H. Wigmore, A Students'
Textbook ofthe Law of Evidence 421 (1935).
declinatory exception (di-khn-d-tor-ee). Louisiana law.
An exception to a court's jurisdiction. -Grounds for
refuSing to submit to a court's jurisdiction include
lack of personal jurisdiction and insufficient service
of process. [Cases: Pleading
dilatory exception (dil-d-tor-ee). (1822) Louisiana law.
An exception intended to delay but not dismiss an
action. [Cases: Pleading C=>228.6, 228.7.]
general exception. (16c) 1. An objection pointing
out a substantive defect in an opponent's pleading,
such as the insufficiency of the claim or the court's
lack of subject-matter jurisdiction; an objection to
a pleading for want of substance. -Also termed
general demurrer. Cf. SPECIAL EXCEPTION (1). [Cases:
Pleading C=>228.13.] 2. An objection in which the
excepting party does not specify the grounds of the
objection.
peremptory exception. (16c) Louisiana law. A defensive
pleading asserting that no legal remedy exists for the
plaintiffs alleged injury, that res judicata or prescrip
tion bars the claim, or that an indispensable party has
not been included in the litigation. [Cases: Pleading
C=>228.8.]
special exception. See SPECIAL EXCEPTION.
2. Something that is excluded from a rule's operation
<employers with fewer than five employees are an
exception to the rule>. statutory exception. (18c) A provision in a statute
exempting certain persons or conduct from the stat
ute's operation. [Cases: Statutes
3. The retention of an existing right or interest, by
and for the grantor, in real property being granted to
another. Cf. RESERVATION (1). [Cases: Deeds 137,
141.] -except, vb.
exceptionable (ek-sep-shdn-;:>-b;:>l), adj. (17c) Liable to
objection; OBJECTIONABLE.
exceptional charge. See special charge under CHARGE.
exception clause. A clause that attempts to modify or
exclude the prima facie obligations that arise when a
document is signed. -Also termed exemption clause.
[Cases: DeedsC~137-140.]
exceptio plurium concubentium defense. 1. See
MULTIPLE ACCESS. 2. See exceptio plurium concuben
tium under EXCEPTIO.
exceptis eXcipiendis (ek-sep-tis ek-sip-ee-en-dis). [Latin]
With all necessary exceptions.
exceptor, n. One who takes exception; an objector.
Also spelled excepter.
excerpta (ek-s;,rp-t;:l), n. pl. [Latin] Extracts.
ex certa scientia (eks s;,r-td sI-en-shee-d). [Latin] Of
certain or sure knowledge . This phrase was anciently
used in patents, and imported full knowledge of the
subject matter on the part ofthe sovereign.
exces de pouvoir (ek-say d;:> poo-vwahr). [French
"excess of power"] 1. Int'llaw. Beyond the powers (of
a tribunal). 2. Administrative law. Beyond the powers
ofan official.
excess-benefit plan. See EMPLOYEE BENEFIT PLAN.
excess clause. An insurance-policy provision -usu.
contained in the "other insurance" section of the
policy -that limits the insurer's liability to the amount
exceeding other available coverage . This clause essen
tially requires other insurers to pay first. Cf. ESCAPE
CLAUSE; PRO RATA CLAUSE. [Cases: Insurance
2110.]
excess condemnation. See CONDEMNATION.
excess damages. See DAMAGES.
excess insurance. See INSURANCE.
excess insurer. See INSURER.
excessive assessment. See ASSESSMENT.
excessive bail. See BAIL (1).
excessive damages. See DAMAGES.
excessive drunkenness. See DRUNKENNESS.
excessive execution. An exercise ofa power ofappoint
ment exceeding the limits (express or statutory) set on
the use of the power.
excessive fine. See PINE (5).
Excessive Fines Clause. (1986)The clause of the Eighth
Amendment to the U.S. Constitution prohibiting the
imposition ofexcessive fines. [Cases: Fines C=> 1.3.]

645 Exchequer Division
excessive force. See FORCE.
excessive punishment. See PUNISHMENT.
excessive sentence. See SENTENCE.
excessive verdict. See VERDICT.
excess judgment. See JUDGMENT.
excess jurisdiction. See EXCESS OF JURISDICTION (1).
excess-liability damages. See excess damages under
DAMAGES.
excess limits. Insurance coverage against losses in excess
ofa speCified limit.
excess-lines insurance. See surplus-lines insurance
under INSURANCE.
excess margin. Equity in a brokerage firm's customer
account that exceeds either the legal-minimum dollar
amount for a margin account or the maintenance
requirement.
excess of jurisdiction. (17c) 1. A court's acting beyond
the limits of its power, usu. in one of three ways: (1)
when the court has no power to deal with the kind of
matter at issue, (2) when the court has no power to deal
with the particular person concerned, or (3) when the
judgment or order issued is of a kind that the court
has no power to issue. [Cases: Courts 40.] 2.
A court's departure from recognized and established
requirements oflaw, despite apparent adherence to
procedural form, the effect of which is a deprivation
of one's constitutional right. -Also termed excess
jurisdiction.
excess ofprivilege. (1889) 1. An excessive publication of
a privileged statement -that is, beyond the limits of
the privilege. [Cases: Libel and Slander 2. The
improper and malicious use ofthe privilege to publish
a statement. [Cases: Libel and Slander (;:::7 50.]
excess policy. See excess insurance under INSURANCE.
excess-profits tax. See TAX.
excess reinsurance. See REINSURANCE.
excess reserve. See RESERVE.
excess theory. Insurance. The principle that a tortfeasor
will be considered underinsured if the injured party's
damages exceed the tortfeasor's liability-insurance
coverage. _ This principle allows an injured party
to invoke underinsured-motorist coverage. Cf. GAP
THEORY. [Cases: Insurance C::)2787.]
excess vote. See VOTE (i).
excess water. See WATER.
exchange, n. (14c) Commercial law. L The act of trans
ferring interests, each in consideration for the other.
[Cases: Exchange


4c) Commercial law. L The act of trans
ferring interests, each in consideration for the other.
[Cases: Exchange of Property ~1.)
bargained-for exchange. See BARGAINED-FOR
EXCHANGE.
like-kind exchange. See LIKE-KIND EXCHANGE.
tax-free exchange. See TAX-FREE EXCHANGE.
1031 exchange. See 1031 EXCHANGE. 2. Money or negotiable instruments presented as
payment; CURRENCY. See MEDIUM OF EXCHANGE. 3.
Ihe interchange or conversion ofmoney. See FOREIGN
EXCHANGE. 4. Ihe payment of a debt using a bill of
exchange or credit rather than money. 5. An orga
nization that brings together buyers and sellers of
securities, commodities, and the like to promote uni
formity in the customs and usages of merchants, to
facilitate the speedy adjustment of business disputes,
to gather and disseminate valuable commercial and
economic information, and to secure to its members
the benefits of cooperation in the furtherance of their
legitimate pursuits . The best-known exchanges are
stock, produce, livestock, cotton, and grain exchanges.
See RECIPROCAL EXCHANGE. [Cases: Exchanges ~
1-15; Securities Regulation ~40.l0-40.16.] 6. The
building or hall where members of an exchange meet
every business day to buy and sell for themselves, or
as brokers for their customers, for present and future
delivery. See SECURITIES EXCHANGE (1). exchange,
vb.
Exchange Act. See SECURITIES EXCHANGE ACT OF
1934
exchange agreement. See AGREEMENT.
exchange broker. One who negotiates money or merchan
dise transactions for others. [Cases: Brokers
exchange rate. The ratio for converting one country's
money into another country's money. See FOREIGN
EXCHANGE.
exchange ratio. The number of shares that an acquir
ing company must give for each share of an acquired
company.
exchange value. See VALUE (2).
Exchequer (eks-chek-~r or eks-chek-~r). (14c) 1. English
law. The government department charged with col
lecting and administering the national revenue; the
treasury department.  The name is said to have derived
from the checkered cloth, resembling a chessboard,
that anciently covered the table on which certain of
the king's accounts were tallied, the sums being marked
and scored with counters. 2. COURT OF EXCHEQUER.
Abbe Ex.
Exchequer bill. A bill ofcredit issued in England by the
authority of Parliament; an instrument issued at the
Exchequer, usu. under the authority of an act of Par
liament passed for that specific purpose, containing
an engagement on the part of the government to repay,
with interest, the principal sums advanced.
Exchequer Chamber. An English court ofintermediate
appeal from the common-law courts, namely, the Court
of King's Bench, the Court of Common Pleas, and the
Court of Exchequer . It was established in 1822.
Also termed Camera Scaccarii.
Exchequer Division. Rist. English law. A division of
the High Court of Justice, to which the business of the
Court of Exchequer was specially assigned by section

646 excise
34 of the Judicature Act of IS73, and later merged into
the Queen's Bench Division in ISSl.
excise, n. (iSc) A tax imposed on the manufacture, sale,
or use ofgoods (such as a cigarette tax), or on an occu
pation or activity (such as a license tax or an attorney
occupation fee). -Also termed excise tax. Cf. income
tax and property tax under TAX. [Cases: Taxation C:::c
3251, 3602.]
excise lieu property tax. See TAX.
excise tax. See EXCISE.
excision. See FEMALE GENITAL MUTILATION.
excited utterance. (IS00) A statement about a startling
event made under the stress and excitement of the
event. An excited utterance may be admissible as a
hearsay exception. Fed. R. Evid. S03(2). Cf. PRESENT
SENSE IMPRESSION. [Cases: Criminal LawC:::c363-36S;
Evidence C:::c 120.]
excludable, adj. (1916) 1. (Of evidence) subject to exclu
sion <excludable hearsay>. 2. (Of an alien) ineligible
for admission or entry into a country.
excludable alien. See ALIEN.
exclude. See RIGHT TO EXCLUDE.
excludendo fiscum et relictam (eks-kloo-den-doh
tis-bm et ri-lik-tJm). [Law Latin] Hist. To the exclu
sion of the rights of the Crown and of the widow.
exclusion, n. 1. Tax. An item of income excluded from
gross income. -Also termed income exclusion. [Cases:
Internal Revenue C:::c311O; Taxation C:::c3447.]
annual exclusion. (1940) The amount allowed as non
taxable gift income during the calendar year.  The
purpose of the annual exclusion is both to serve as
an estate-planning mechanism (so that gifts made
during the donor's lifetime remain nontestamentary
and nontaxable) and to eliminate the administra
tive inconvenience of taxing relatively small gifts. In
2009, for an individual, the first $13,000 in gifts can
be excluded; for married persons, the exclusion is
$26,000 per couple for joint gifts, regardless ofwhich
spouse supplied the donated property. IRC (26 USCA)
 2503. -Also termed annual gift-tax exclusion.
[Cases: Internal Revenue C:::c4206.l0.]
2. Evidence. A trial judge's determination that an item
offered as evidence may not be presented to the trier of
fact (esp. the jury). 3. Insurance. An insurance-policy
provision that excepts certain events or conditions
from coverage. [Cases: Insurance C:::c209S.] -exclude,
vb. -exclusionary, adj.
automobile exclusion. A provision in some commer
cial general liability policies, excluding coverage for
damages arising from the use (including loading and
unloading) ofan automobile, aircraft, or other motor
vehicle owned, operated, rented, or borrowed by the
insured. [Cases: Insurance C:::c227S(i3).]
business-risk exclusion. An exclusion in some com
mercial general liability policies, excluding coverage
for common risks of doing business, including harm to the insured's product or work, damages
arising from a product recall, damages arising from
the insured's failure to perform under a contract,
or damages arising from a failure of the insured's
product to perform as intended. [Cases: Insurance
C:::c227S(20).]
design-defect exclusion. A provision in some umbrella
policies and some older commercial general liability
policies, excluding coverage for bodily injury arising
from the failure of the insured's product to perform
its intended function because of a defect or defi
ciency in its design, formula, specifications, instruc
tions, or advertising materials. [Cases: Insurance C:::c
227S(21).]
employee-liability exclusion. A provision in some com
mercial general liability policies, excluding coverage
for injury to an employee (or a member ofthe employ
ee's family), arising from and in the course ofemploy
ment with the insured . This exclusion is generally
intended to exclude from coverage all injuries covered
by the workers' -compensation laws. [Cases: Insurance
C:::c227S(1l, 12).]
employment-related-practices exclusion. A provision
in some commercial general liability policies, exclud
ing coverage for damages arising from an insured's
employment practices, including any policy, action, or
omission -such as coercion, demotion, evaluation,
reassignment, discipline, defamation, harassment,
humiliation, or discrimination -that is directed at
the person injured. [Cases: Insurance C:::c227S(1l).]
expected/intended exclusion. A provision in some com
mercial general liability policies, excluding coverage
for property damage or bodily injury that is expected
or intended by the insured, except any harm arising
from the use ofreasonable force to protect a person or
property.  This exclusion is sometimes referred to as
"exclusion a" because it is the first exclusion listed on
most policies. -Also termed exclusion a; intentional
injury exclusion. [Cases: Insurance C:::c227S(3).]
failure-to-perform exclusion. A provision in some
commercial general liability policies, excluding
coverage for (1) the loss ofuse ofundamaged property
resulting from the insured's delay or failure in per
forming an obligation, or (2) a design defect or failure
in the insured's product. -Also termed loss-of-use
exclusion. [Cases: Insurance C:::c227S(21).]
knowledge-of-falsity exclusion. A provision in some
commercial general liability policies, excluding
coverage for damages arising from an oral or written
communication made by the insured with knowl
edge that it is false. [Cases: Insurance C:::c2303(2),
2313(2).]
named-insured exclusion. An exclusion limiting lia
bility-insurance coverage to a named insured whose
injuries were caused by another named insured under
the same insurance policy. [Cases: Insurance C:::c
227S(I),274S-2747.]

647
owned-property exclusion. Insurance. A provision in
a comprehensive general-liability insurance policy
allowing only third parties who are injured on or by
the insured's property to make liability claims against
the insurer. The provision ordinarily excludes
coverage for (1) property owned, rented, occupied,
sold, given away, or abandoned by the insured, (2)
personal property in the care, custody, or control
of the insured, and (3) property located where the
insured and its employees work. [Cases: Insurance
(:::::> 2278(25).1
own-product exclusion. A provision in some com
mercial general liability policies, excluding coverage
for property damage to a product that is manufac
tured, sold, handled, distributed, or disposed of by
the insured. [Cases: Insurance C;)2278(21).]
own-work exclusion. A provision in some commer
cial general liability policies, excluding coverage for
damage to the work or services performed by the
insured. [Cases: Insurance (:::::> 2278(21).]
pollution exclusion. A provision in some commer
cial general liability policies, excluding coverage for
bodily injury or property damages arising from the
discharge, dispersal, release, or escape of chemicals,
waste, acid, and other pollutants . Pollution-exclu
sion clauses may take one of two forms: (1) sudden
and accidental, and (2) absolute. The sudden-and
accidental clause, usu. limited to policies issued before
1985, contains an exception under which the damages
are covered (Le., exempted from the exclusion) if the
discharge or other release was sudden and acciden
tal. The absolute pollution exclusion, in most policies
issued since 1985, does not contain this exception.
[Cases: Insurance C=:'2278(17).j
sistership exclusion. A provision in some commer
cial general liability policies, excluding coverage for
damages arising from the withdrawal, inspection,
repair, replacement, or loss of use of the insured's
product or work, to the extent that the product or
work is withdrawn or recalled from the market
because of a known or suspected defect or defi
ciency. -Also termed recall exclusion. [Cases: Insur
ance (>.)2278(24).J
exclusion a. See expected/intended exclusion under
EXCLUSION (3).
exclusionary hearing. See HEARING.
exclusionary practice. Antitrust. A method by which a
firm can gain or maintain monopoly power without the
express or tacit cooperation ofcompeting or potentially
competing firms.
exclusionary rule. (1855) 1. Evidence. Any rule that
excludes or suppresses evidence <despite many excep
tions, hearsay has long been inadmissible under
an exclusionary rule>. Also termed exclusion
ary evidence rule. [Cases: Evidence (:::::> 154, 314.]
2. Criminal procedure. A rule that excludes or sup
presses evidence obtained in violation of an accused
person's constitutional rights <in accordance with the exclusive economic zone
exclusionary rule, the court did not admit the drugs
into evidence because they had been obtained during
a warrantless search of the defendant's home>. See
FRUIT-OF-THE-POISONOUS-TREE DOCTRINE; GOOD
FAITH EXCEPTION. [Cases: Criminal Law
"The deterrence of unreasonable searches and seizures is
a major purpose of the exclusionary rule .... But the rule
serves other purposes as well. There is, for example, ...
'the imperative of judicial integrity,' namely. that the
courts do not become 'accomplices in willful disobedience
of a Constitution they are sworn to uphold: ... A third
purpose of the exclusionary rule ... IS that of 'assuring
the people all potential victims of unlawful government
conduct that the government would not profit from its
lawless behavior, thus minimizing the risk of seriously
undermining popular trust in the government.''' Wayne R.
LaFave &Jerold H. Israel, Criminal Procedure  3.1, at 107
(2d ed. 1992) (quoting Elkins v. United States, 364 U.S. 206,
80S.ct. 1437 (1960); United States v. Calandra, 414 U.S.
338,94 S.Ct. 613 (1974) (


414 U.S.
338,94 S.Ct. 613 (1974) (dissent)).
"In the simplest of exclUSionary rule cases, the challenged
evidence is quite clearly 'direct' or 'primary' in its relation
ship to the prior arrest, search, interrogation, lineup or
other identification procedure. Such is the case when that
evidence is an identification occurring at the confrontation
between suspect and victim or witness, a confession or
admission made in response to questioning, or physical
evidence obtained by search or arrest. Not infrequently,
however, challenged evidence is 'secondary' or 'derivative'
in character. This occurs when, for example, a confession is
obtained after an illegal arrest, physical evidence is located
after an illegally obtained confeSSion, or an in-court iden
tification is made following an illegally conducted pretrial
identification. In these situations, it is necessary to deter
mine whether the derivative evidence is 'tainted' by the
prior constitutional or other violation." Wayne R. LaFave
&Jerold H. Israel, Criminal Procedure  9.3, at 471 (2d
ed. 1992).
exclusionary zoning. See ZONING.
exclusive agency. See AGENCY (1).
exclusive-agency listing. See LISTING (1).
exclusive authorization-to-selliisting. See exclusive
agency listing under LISTING (1).
exclusive contract. See EXCLUSIVE-DEALING ARRANGE
MENT.
exclusive control. (1890) Under the doctrine of res
ipsa loquitur, a defendant's sole management of and
responsibility for the instrumentality causing harm .
 Exclusive control is a prerequisite to the doctrine's
applicability. See RES IPSA LOQUITUR. [Cases: Negli
gence (:::::>,1614.]
exclusive-dealing arrangement. (1943) An agreement
requiring a buyer to purchase all needed goods or
services from one seller. -Often shortened to exclusive
dealing. Also termed exclusive contract. See require
ments contract under CONTRACT. [Cases: Antitrust and
Trade Regulation
exclusive easement. See EASEMENT.
exclusive economic zone. Int'llaw. An area just beyond
the territorial sea, extending up to 200 nautical miles
from the baseline of the territorial sea, in which the
coastal country enjoys special authority for economic
purposes. Abbr. EEZ.

648 exclusive evidence
exclusive evidence. See EVIDENCE.
exclusive franchise. See exclusive agency under AGENCY
(1).
exclusive jurisdiction. See JURISDICTION.
exclusive license. See LICENSE.
exclusive listing. See exclusive-agency listing under
LISTING (1).
exclusive ownership. See FEE SIMPLE.
exclusive possession. See POSSESSION.
exclusive right of sale. The right to sell a principal's
products or to act as the seller's real-estate agent to the
exclusion of all others, including the owner. -Also
termed exclusive right to sell. Cf. exclusive agency under
AGENCY (1).
exclusive sale. See SALE.
exclusive use. See USE (1).
exclusive-use clause. A lease provision enumerating con
ditions for a lessee's use of the leased property. [Cases:
Bailment C=> 1; Landlord and Tenant C=>134.]
ex colore (eks kd-Ior-ee). [Latin] By color; under color of;
under pretense, show, or protection of.
ex comitate (eks kom-d-tay-tee). [Latin] Out of comity
or courtesy.
excommengement (eks-b-menj-mdnt), n. See EXCOM
MUNICATION.
ex commodato (eks kom-d-day-toh). [Latin "out ofloan"]
Hist. (Of a right ofaction) arising out of a loan.
excommunicant (eks-kd-myoo-ni-bnt), n. (16c) Eccles.
law. 1. An excommunicated person. 2. Rare. An excom
municator.
excommunication, n. (15c) Eccles. law. A sentence of
censure pronounced by a spiritual court for an offense
falling under ecclesiastical cognizance; expulsion
from religious society or community . In England,
an excommunicated person was formerly subject to
various civil disabilities, such as an inability to be a
juror, to be a witness in any court, or to sue to recover
lands or money due. These penalties were abolished
by the Ecclesiastical Courts Act (1813). St. 53 Geo. 3,
ch. 127. -Also termed excommengement. -excom
municate, vb.
"Closely allied to outlawry is excommunication; it is in fact
an ecclesiastical outlawry, and, like temporal outlawry,
though once it was the law's last and most terrible weapon
against the obstinate offender, it is now regarded as a
normal process for compelling the appearance in court of
those who are accused. Indeed as regards the laity, since
the spiritual courts can not direct a seizure of the body,
lands, or goods, those courts must, if mere citations fail to
produce an appearance, at once have recourse to their last
weapon. Then, as ordained by William the Conqueror, the
lay power comes to their aid. If the excommunicate does
not seek absolution within forty days (this period seems
to be fixed already in the twelfth century), the ordinary
will signify this to the kind; a writ for the arrest of the
offender will be issued, and he will be kept in prison until
he makes his submission." 2 Frederick Pollock & Frederic
William Maitland, History ofEnglish Law Before the Time of
Edward 1500 (2d ed. 1899). excommunicato capiendo (eks-kd-myoo-ni-kay-toh
kap-ee-en-doh). [Latin] Hist. Eccles. law. A writ that,
being founded on a bishop's certificate of excommu
nication, required the sheriff to arrest and imprison
the defendant . The writ issued out of chancery and
was returnable to the King's Bench. Cf. DE CONTUMACE
CAPIENDO.
excommunicator. (17c) A person who excommunicates.
excommunicato recapiendo (eks-b-myoo-ni-kay-toh
ri-kap-ee-en-doh). [Latin] Hist. Eccles. law. A writ
commanding that an excommunicant -who had
been committed to prison for obstinacy but who was
unlawfully freed before agreeing to obey the church's
authority -should be found, retaken, and imprisoned
again.
ex comparatione scriptorum (eks kom-pd-ray-shee-oh
nee skrip-tor-dm). [Latin] Bya comparison ofwritings
or handwritings . This term was formerly used in the
law ofevidence.
ex concessis (eks kdn-ses-is). [Latin] From the premises
granted; according to what has already been allowed.
ex consulto (eks kdn-sal-toh). [Latin] With consultation
or deliberation.
ex continenti (eks kon-td-nen-tI). [Latin] Civil law.
Immediately; without any interval or delay.
ex contractu (eks bn-trak-t[y]oo). [Latin "from a
contract"] Arising from a contract <action ex con
tractu>. Cf. EX DELICTO (1).
ex-coupon bond. See BOND (2).
exculpate (ek-skdl-payt or ek-skal-payt), vb. (17c) To free
from blame or accusation. Cf. EXONERATE (1). -excul
pation (ek-sbl-pay-shdn), n. -exculpatory (ek-skal
pd-tor-ee), adj.
exculpatory clause. (1891) A contractual provision
relieving a party from liability resulting from a neg
ligent or wrongful act.  A will or a trust may contain
an exculpatory clause purporting to immunize a fidu
ciary from a breach ofduty; the clause may reduce the
degree of care and prudence required of the fiduciary.
But courts generally find that if an exculpatory clause
in a will or trust seeks to confer absolute immunity, it
is void as being against public policy. See EXEMPTION
CLAUSE. [Cases: Contracts C=> 114, 189.5.]
exculpatory evidence. See EVIDENCE.
exculpatory-no doctrine. (1977) Criminal law. The prin
ciple that a person cannot be charged with making a
false statement for falsely denying guilt in response to
an investigator's question . This doctrine is based on
the Fifth Amendment right against self-incrimination.
But the U.S. Supreme Court has overruled this doctrine
in federal law. Brogan v. United States, 522 U.S. 398, 118
S.Ct. 805 (1998). [Cases: Fraud C=>68.1O(1).]
ex curia (eks kyoor-ee-d). [Latin] Out of court; away
from the court.

649 execute
excusable, adj. (I4c) (Of an illegal act or omission) not
punishable under the specific circumstances <excus
able neglect>.
excusable assault. See ASSAULT.
excusable homicide. See HOMICIDE.
excusable neglect. See NEGLECT.
excusatio (ek-skyoo-zay-shee-oh), n. [Latin] Roman 1&
civil law. An excuse or reason that exempts someone
from some duty or obligation.
excusator (ek-skyoo-zay-tdr), n. (l7c) 1. Hist. An excuser.
2. In old German law, a defendant; one who wholly
denies the plaintiff's claim.
excuse (ek-skyoos), n. (l4c) l. A reason that justifies an
act or omission or that relieves a person of a duty. 2.
Criminal law. A defense that arises because the defen
dant is not blameworthy for having acted in a way that
would otherwise be criminal. -The following defenses
are the traditional excuses: duress, entrapment, infancy,
insanity, and involuntary intoxication. Also termed
legal excuse. Cf. JUSTIFICATION (2). [Cases: Criminal
Law 38.] -excuse (ek-skyooz), vb. -excusa
tory (ek-skyooz-;Hor-ee), adj.
excuse by failure of presupposed conditions. See com
mercial impracticability under IMPRACTICABILITY.
excuss (ek-sk<ls), vb. (18c) To seize and detain by law.
excussio (ek-sk3-s[h]ee-oh), 11. [Latin] Roman 1& civil law.
A diligent prosecution ofa remedy against a debtor; esp.,
the exhausting of a remedy against a principal debtor
before resorting to a surety. Also termed excussion.
ex-date. See EX-DIVIDEND DATE.
ex debito justitiae (eks deb-i-toh jas-tish-ee-ee). [Latin]
From or as a debt of justice; in accordance with the
requirement ofjustice; of right; as a matter of right.
ex debito naturali (eks deb-i-toh nach-a-ray-h). [Law
Latin] Scots law. Arising from natural obligation. -The
phrase appeared in reference to an obligation that was
moral rather than legal.
ex defectu juris (eks di-fek-t[y]oo joor-is). [Law Latin]
Scots law. From a defect in the right. _ A seller had
to warrant a purchaser against an eviction based on a
defect in the seller's own right.
ex defectu natalium (eks di-fek-t[y]oo nd-tay-Iee-dm).
[Law Latin] Hist. From defect of parentage. -Formerly,
this phrase appeared in reference to a basis upon which
the court rejected the will ofa bastard who died without
issue.
ex defectu sanguinis (eks di-fek-t[y]oo sang-gwa-nis).
[Latin] Hist. From failure ofblood; for want of issue.
ex detectu familiae (eks di-Iek-t[y]oo fa-mil-ee-ee). [Law
Latin] Hist. From choice of a certain family. _ lhe
phrase appeared in reference to the sovereign's right
to bestow honors on those whom he chose.
ex deliberatione Dominorum Concilii (eks di-lib-a-ray
shee-oh-nee dom-;J-nor-dm bn-sil-ee-I). [Law Latin]
Hist. After consideration by the Lords of Council. "Formerly all writs which passed the Signet were procured
by presentation of a bill (or petition) for such writ. The bill
was perused and considered by the Lord Ordinary on the
Bills, and if he was satisfied, the bill was passed and the
writ issued: the latter bearing the words ex deliberatione
Dominorum Concilii to signify that the bill had been con
sidered. These words are still appended to almost all writs
which pass the signet, but they are now only words of style,
since the writs are now passed periculo petentis without
being submitted to the Lords." John Trayner, Trayner's Latin
Maxims 196-97 (4th ed. 1894).
ex delicto (eks d;J-lik-toh), adj. 1& adv. [Latin "from a
wrong"] 1. Arising from a crime or tort <action ex
delicto>. -Although ex delicto refers most commonly
to a tort in modern usage, it referred historically to
both torts and crimes. Cf. IN DELICTO; EX CONTRACTU.
2. 111t'1Iaw. Rare. As a consequence of a crime or tort
<because they were counterfeit, the goods were seized
and condemned ex delicto>.
ex delicto trust. See TRUST.
ex demissione (eks d;J-mish-ee-oh-nee). [Latin "upon the
demise"] Hist. A phrase forming part ofthe title of the
old action of ejectment. Abbr. ex demo


the
demise"] Hist. A phrase forming part ofthe title of the
old action of ejectment. Abbr. ex demo
ex directo (eks di-rek-toh). [Latin] Directly; immediately.
ex distribution. Without distribution. -Shares are
traded ex distribution when they no longer carry the
right to receive a distribution to be made to holders. -
Abbr. X; XDlS.
ex diverso (eks di-v3r-soh). [Latinlllist. On the other
hand; conversely.
ex dividend. Without dividend. -Shares are traded ex
dividend when the selier, not the purchaser, is entitled
to the next dividend payment because it will be made
before the stock transfer is completed. The first day on
which shares are traded ex dividend, the stock price will
drop by an amount usu. approximating the amount of
the dividend. -Abbr. XD.; X. Cf. CUM DIVIDEND.
ex-dividend date. The date on or after which the buyer
of a security does not acquire the right to receive a
recently declared dividend. -Also termed ex-date.
Cf. DIVIDEND DATE.
ex dolo malo (eks doh-loh mal-oh). [Latin] Out offraud;
out ofdeceitful or tortious conduct.
exeat (ek-see-;Jt), n. (18c) 1. Generally, permission to go
outside (a place). 2. Permission that a bishop grants to
a priest to go out ofhis diocese. Cf. NE EXEAT (1).
execute, vb. (14c) 1. To perform or complete (a contract
or duty) <once the contract was fully executed, the
parties owed no further contractual duties to each
other>. [Cases: Contracts 2. To change (as a
legal interest) from one form to another <the shifting
use was executed into a valid legal estate>. 3. To make
(a legal document) valid by signing; to bring (a legal
document) into its final, legally enforceable form
<each party executed the contract without a signa
ture witness>. 4. To put to death, esp. by legal sentence
<Johnson was executed shortly after midnight>. [Cases:
Sentencing and Punishment C;=> 1795.] 5. To enforce
and collect on (a money judgment) <Williams asked the

executed 650
sheriff to execute on the judgment>. [Cases: Execution
(;=: 1; Federal Civil Procedure (;=:2691.]
executed, adj. (16c) 1. (Of a document) that has been
signed <an executed will>. 2. That has been done, given,
or performed <executed consideration>.
"[Tlhe term 'executed' is a slippery word. Its use is to be
avoided except when accompanied by explanation ....
A contract is frequently said to be executed when the
document has been signed, or has been signed, sealed,
and delivered. Further, by executed contract is frequently
meant one that has been fully performed by both parties."
William R. Anson, Principles of the Law of Contract 26 n.*
(Arthur l. Corbin ed., 3d Am. ed. 1919).
executed consideration. See CONSIDERATION (1).
executed contract. See CONTRACT.
executed covenant. See COVENANT (1).
executed estate. See REMAINDER (1).
executed fine. See FINE (1).
executed note. See NOTE (1).
executed remainder. See vested remainder under
REMAINDER.
executed trust. See TRUST.
executed use. See USE (4).
executio (ek-s<l-kyoo-shee-oh), n. [Latin] 1. The perfor
mance or completion of a thing; the act of following
through on a commitment. 2. The doing ofsomething
thoroughly. 3. Management or administration. 4. Hist.
Execution; the final process in an action.
executio bonorum (b,,-nor-<lm). [Latin] Hist. The man
agement or administration ofgoods.
execution, n. (14c) 1. The act of carrying out or putting
into effect (as a court order or a securities transaction)
<execution of the court's decree> <execution of the
stop-loss order>. 2. Validation ofa written instrument,
such as a contract or will, by fulfilling the necessary
legal requirements <delivery of the goods completed the
contract's execution>. [Cases: Contracts (:::-J34; Sales
Vendor and Purchaser <::=>23; Wills (;=: 108
129.] 3. Judicial enforcement of a money judgment, usu.
by seizing and selling the judgment debtor's property
<even if the plaintiff receives a judgment against the
foreign debtor, execution is unlikely>. -Also termed
(in Scots law) diligence. [Cases: Execution Federal
Civil Procedure C=>2691.] 4. A court order directing
a sheriff or other officer to enforce a judgment, usu.
by seizing and selling the judgment debtor's property
<the court issued the execution authorizing seizure of
the car>. -Also termed writ ofexecution; judgment
execution; general execution. [Cases: Execution <:-"'::>74;
Federal Civil Procedure C=>2697.]
"A writ of execution is an authorization to an executive
officer, issued from a court in which a final judgment has
been rendered, for the purpose ofcarrying such judgment
into force and effect. It is founded upon the judgment,
must generally be conformed to it in every respect, and the
plaintiff is always entitled to it to obtain a satisfaction of
his claim, unless his right has been suspended by proceed
ings in the nature of an appeal or by his own agreement." BenjaminJ. Shipman, Handbook ofCommon-Law Pleading
26, at 50 (Henry Winthrop Ballantine ed., 3d ed. 1923).
alias execution. A second execution issued to enforce
a judgment not fully satisfied by the original writ. Cf.
alias writ under WRIT. [Cases: Execution C=>99.]
body execution. A court order requiring an officer
to take a named person into custody, usu. to bring
the person before the court to pay a debt; CAPIAS.
Execution (;=:'421; Federal Civil Procedure
close-jail execution. A body execution stating that
the person to be arrested should be confined in jail
without the ofmovement about the jailyard.
[Cases: Execution 448.]
dormant execution. An execution authorizing an
officer to seize and hold property rather than sell it,
until further notice.
junior execution. An execution that is subordinate to
another execution issued from an earlier judgment
against the same debtor. [Cases: Execution (;=: 112.]
malicious execution. An abuse of process by which a
person, maliciously and without reasonable cause,
issues an execution against the property of a judgment
debtor. [Cases: Execution (;:::;)454.]
special execution. An execution authorizing a judgment
to be satisfied from specified property. [Cases: Execu
tion 420.5.]
speedy execution. An execution issuing quickly (esp.
by judges at nisi prius) after a trial.
5. Criminal law. The carrying out of a death sentence
<the Supreme Court stayed the execution>. [Cases: Sen
tencing and Punishment C=>1795-1799.] -execute,
vb.
execution clause. The part ofa deed containing the date,
seal (if required), and signatures of the grantor, grant
or's spouse, and witnesses. [Cases: Deeds (;=:44-53.]
execution creditor. See CREDITOR.
executione facienda in withernamium (ek-s<l-kyoo
shee-oh-nee fay-shee-en-dd in with-dr-nay-mee-dm).
[Latin] Hist. A writ that lay for taking cattle ofa person
who had taken someone else's cattle out of the county
so that the sheriff could not replevy them.
executione judicii (ek-sd-kyoo-shee-oh-nee joo-dish-ee
I). [Latin] Hist. A writ directed to a judge ofan inferior
court to issue execution upon a judgment in that court,
or to return some reasonable cause why the judge has
delayed execution.
executioner. (I6c) A person who puts another person
to death to carry out a death sentence; a person who
carries out capital punishment on the state's behalf.
execution lien. See LIEN.
execution paree (eg-zay-koo-syawn pa-ray). [French]
French law. A right founded on an act approved and
verified before a notary, by which a creditor may
immediately without citation or summons seize
and cause to be sold the debtor's property and keep

651
the proceeds of the sale (to the extent of the indebted
ness).
execution-proof. See JUDGMENT-PROOF.
execution sale. See SALE.
executive, n. (18c) 1. The branch of government respon
sible for effecting and enforcing laws; the person or
persons who constitute this branch. _ The executive
branch is sometimes said to be the residue of all gov
ernment after subtracting the judicial and legislative
branches. Sometimes also termed executive depart
ment. Cf. LEGISLATURE; JUDICIARY (1). [Cases: Consti
tutional Law (;:::>2620-2626; United States C'=31.]
chiefexecutive. (1876) The head of the executive branch
of a government, such as the President of the United
States. [Cases: United States (;:::>26.]
2. A corporate officer at the upper levels of manage
ment. Also termed executive officer; executive
employee. executive, adj.
executive administration. Collectively, high public
officials who administer the chief departments of the
government.
executive agency. An executive-branch department
whose activities are subject to statute and whose con
tracts are subject to judicial review. _ One example is
the National Aeronautics and Space Agency. [Cases:
Administrative Law and Procedure (~~301-513;
United States
executive agreemeut. (1942) An international agree
ment entered into by the President, without approval
by the Senate, and usu. involving routine diplomatic or
military matters. Cf. TREATY (1). [Cases: United States
(;:::>28.]
executive board. See BOARD OF DIRECTORS.
executive branch. (ISc) The branch of government
charged with administering and carrying out the la,v;
EXECUTIVE (1). Cf. JUDICIAL BRANCH; LEGISLATIVE
BRANCH.
executive clemency. See CLEMENCY.
executive committee. See COMMITTEE.
executive department. See EXECUTIVE (1).
executive director. A salaried employee who serves as
an organization's chief administrative and operating
officer and heads its profeSSional staff. -Also termed
executive secretary; staffdirector.
executive employee. An employee whose duties include
some form ofmanagerial authority and active partici
pation in the control, supervision, and management of
the business. Often shortened to executive.
executive immunity. See IMMUNITY (1).
executive officer. See EXECUTIVE (2).
executive order. (1862) An order issued by or on behalf
ofthe President, usu. intended to direct or instruct the
actions of executive agencies or government officials,
or to set policies for the executive branch to follow. -
Abbr. ex. ord. [Cases: United States (;:::>28.] executor
executive pardou. See PARDON.
executive power. (17c) Constitutional law. The power
to see that the laws are duly executed and enforced.
-Under federal law, this power is vested in the Presi
dent; in the states, it is vested in the governors. The
President's enumerated powers are found in the U.S.
Constitution, art. II,  2; governors' executive powers
are provided for in state constitutions. The other two
great powers of government are the legislative power
and the judicial power. [Cases: Constitutional Law ~'=
2620-2626.]
executive privilege. See PRIVILEGE (3).
executive right. Oil & gas. The exclusive right to lease
specified land or mineral rights. _ The executive right
is one of the incidents of the mineral interest. [Cases:
Mines and Minerals
executive secretary. See EXECUTIVE DIRECTOR.
executive session. See SESSION (1).
executor, n. (l3c) 1. (ek-s<l-kyoo-t<lr) One who performs
or carries out some act. 2. (eg-zek-y;H;:,r) A person
named by a testator to carry out the provisions in the
testator's will. Cf. ADMINISTRATOR (2). [Cases: Execu
tors and Administrators Abbr. exor.
acting executor. (18c) One who assumes the role of
executor usu. temporarily but is not the legally
appointed executor or the executor-in-fact. -Also
termed temporary executor. [Cases: Executors and
Administrators G=22.J
coexecutor. See joint executor.
executor ab episcopo constitutus Cab ;:,-pis-k<l-poh kon
sti-t[y]oo-tas). [Law Latin] Eccles. law. An executor
appointed by a bishop; an administrator to an intes
tate. -Also termed executor dativus.
executor a lege constitutus (ay [or ah]lee-jee kon-sti
t[y]oo-tas). [Law Latin] Eccles. law. One authorized by
law to be an executor; the ordinary of the diocese.
executor a testatore constitutus (ay [or ahJ tes-ta
tor-ee kon-sti-t[y]oo-t<ls). [Law Latin] Eccles. law.
An executor appointed by a testator. Also termed
executor testamentarius.
executor dative. See DATIVE (1).
executor dativus. See executor ab episcopo constitu
tus.
executor de son tort (da sawn [or son] tor[t]). [Law
French "executor of his own wrong"] (17c) A person
who, without legal authOrity, takes on the responsibil
ity to act as an executor or administrator of a dece
dent's property, us