Glossary
A
Abatement - the suspension or complete termination of legal action. Courts frequently abated common law cases on the death of one of the parties and left the resolution of the case to a probate court. See also Plea in Abatement.
Abstract - a synopsis of a court case or a synopsis of title to land.
Account - a Common Law action to compel the defendant to report all debts and all assets in his control to the plaintiff. The action applied only when the parties were financially responsible to one another, as, for example, co-tenant, trustee, guardian, or partner. If the court decided for the plaintiff, it appointed three to five auditors to investigate the matter and report to the court. After the auditors presented their report, the court awarded the appropriate amounts to the appropriate parties. The common law action of account generally fell into disuse in antebellum Illinois because litigants found the chancery action of Accounting more flexible.
Accounting - a Chancery action to compel the respondent to report all debts and all assets in his control to the complainant. The action applied only when the parties were financially responsible to one another, as, for example, co-tenant, trustee, guardian, or partner. If the court decided for the complainant, it appointed a receiver to investigate the matter and report to the court. After the receiver presented his report, the court awarded the appropriate amount. The chancery action of accounting increasingly replaced the less flexible common law action of Account. See also Settle Partnership.
Acquittal - the legal and formal certification of the innocence of a person charged with some crime.
Additional Pleading Participant - an individual who was not a party to an original action but who became a litigant in the case through the filing of a Cross-bill, an Injunction, or a bill of Discovery.
Administrator - a person whom the court authorized to manage the estate of a deceased person; the administrator often replaced the deceased person as the litigant in any cases pending in the courts. A woman who performed these functions was an administratrix. An administrator de bonis non managed the remaining portion of an estate left unadministered. See also Executor.
Administrator’s Bond - a document in which an administrator promised to manage the estate with due diligence under penalty of the payment of an amount twice the approximate value of the estate. If the administrator failed to care for the estate properly, any of the interested parties could sue him or her for the penalty of the bond.
Admiralty - a division of the law in the federal courts with jurisdiction over all maritime matters, including those related to navigable rivers and the Great Lakes.
Adultery - voluntary sexual intercourse by a married person with someone other than his or her spouse.
Adverse Possession - a statutory means of acquiring title to property by long-term possession. In an ejectment case, for example, a defendant could claim adverse possession based on his or her long-term occupancy of the property. See also Ejectment; Statute of Limitations.
Affiant - an individual who filed an Affidavit.
Affidavit - a written and sworn statement that affirmed some fact. See also Witness Affidavit.
Affirm - to confirm a former judgment; specifically, when an appellate court upheld the judgment of an inferior court in a particular case.
Agreed Case - a case in which opposing attorneys signed an agreement that established facts to present to the court for adjudication and that bound the parties to take that decision to the supreme court for review.
Agreed Dismissal - the method of ending a case when the parties had settled their dispute without the court’s judgment, through arbitration or otherwise. The parties presented their agreement to the court and asked the court to dismiss the case.
Alimony - the support payments that a husband was obliged to give his wife upon their separation.
Alias - a prefix which indicated that the court had issued the specified writ once before but that it failed to accomplish its purpose. The alias version of the writ usually contained the phrase “as we have before commanded you.” Courts sometimes issued a second time such writs as a Summons, a Writ of Execution, or a Writ of Fieri Facias. Alias also referred to other names by which a person was known (e.g., J. H. Smith alias John H. Smith).
Annulment - to make void legally; while a Divorce terminated a legal status, an annulment established that a marital status never existed.
Answer - a Respondent’s written response to the Complainant’s allegations in a Bill of Complaint in a chancery action.
Appeal - a request to a superior court to correct the mistake or injustice of an inferior court's proceedings. See also the particular pleading process in Appellate Pleading.
Appeal Bond - a document in which an Appellant provided security for damages and costs, usually twice the amount of the judgment in the inferior court, if his or her appeal bid failed.
Appellant – the litigant who took an appeal or writ of error from one court to a superior or appellate court; the appellant requested the superior court to set aside or reverse the judgment of an inferior court. The supreme court also referred to an appellant as a plaintiff in error.
Appellee – the litigant against whom an appellant took an Appeal or Writ of Error from one court to a superior or appellate court; the appellee had an interest in upholding the inferior court’s judgment. The supreme court also referred to an appellee as a defendant in error.
Appointment - placing an individual in an office or position of trust.
Appraiser’s Report - a report that provided a determination of a property's value and could also include the court’s appointment of the appraiser and the appraiser’s oath to perform his task objectively.
Arbitration – the submission of a dispute to one or more neutral persons for a decision in lieu of litigation. An arbitration agreement was the document that parties used to initiate the arbitration process.
Arson - the willful burning of another's buildings.
Assault - a violent threat or attempt to inflict bodily harm.
Assault with a Deadly Weapon - a threat or attempt to inflict bodily harm with any instrument capable of producing death or serious bodily harm.
Assault with Intent to Murder - a threat or attempt to take the life of another human being.
Assault with Intent to Rape - a threat or attempt to inflict bodily harm and perform nonconsensual sexual intercourse.
Assault and Battery - a threat or attempt to inflict bodily harm and the actual infliction of bodily harm by the aggressor or something set in motion by the aggressor. See also Trespass Vi Et Armis.
Assignee - a person who received the transfer of real or personal property from an assignor; or, a person who managed the bankrupt individual’s property in a bankruptcy case and distributed the proceeds from the sale of the property among the bankrupt person’s creditors.
Assignment of Breaches - a document that specified the failures of a public official to perform the duties of his office.
Assignment of Errors - a document filed with a superior court that specified the errors made by an inferior court in a particular case. The assignment of errors became the basis for an Appeal of the inferior court’s ruling.
Assignor - a person who transferred real or personal property to another person.
Assumpsit - an action for the breach of a simple contract (express or implied), which was not under seal. It was used in a wide variety of situations. Plaintiffs used the action of Assumpsit to collect promissory notes, to recover money obtained through Fraud or misrepresentation, to recover damages for the breach of a marriage contract, to recover damages for a failure to deliver merchandise, and in a variety of other situations. A form of Trespass on the Case, Assumpsit was the most commonly used common law action in antebellum Illinois. Assumpsit replaced and was virtually synonymous with Trespass on the Case on Promises. Assumpsit differed from Debt in the nature of the award possible. A plaintiff sued in an action of Assumpsit to collect damages, so the amount of the debt could be uncertain and determined by the court or the jury. In the case of a Promissory Note, the plaintiff sued in an action of Assumpsit to collect damages for the defendant’s failure to pay the debt. The award could include the value of the note, interest, and additional damages that the plaintiff sustained. A plaintiff sued in an action of Debt to collect a “sum certain” or a specific amount. In the case of a promissory note, the plaintiff sued in an action of Debt to collect only the amount of the note and interest.
Attachment - an action through which a plaintiff could have the court seize the defendant’s personal or real property pending the outcome of a case involving a debt of $20 or more or an out-of-state defendant; creditors frequently used attachment against debtors, in many cases in aid to an Assumpsit action. See also Writ of Attachment.
Authorities - citations to constitutions, statutes, judicial decisions, rules, and regulations to support a legal position in a case; also, citations to these sources to fortify the Opinion of the court.
B
Bail - a security given by a criminal defendant to ensure his or her attendance at some future court date.
Bank Note - a Promissory Note payable upon presentation to the issuing bank; bank notes also became a circulating form of currency.
Bankruptcy - an action by which the court relieved a debtor of his debts by selling his property and distributing the proceeds among his creditors; a division of the law in the federal courts devoted to these matters. See also the particular pleading process in Bankruptcy Pleading.
Bastardy - an action to compel the father of an illegitimate child to provide financial support for the child for the first seven years of his or her life. More generally, the criminal offense of conceiving an illegitimate child. In such cases, the father was guilty of bastardy, but the parents were also guilty of Fornication and/or Adultery.
Battery - See Assault and Battery.
Bestiality - sexual relations between a human and an animal.
Bigamy - the formation of a second marriage with knowledge that the first marriage was still valid.
Bill for Partition - See Partition.
Bill for Relief - See Bill of Complaint.
Bill in Chancery - a generic term for any action in the chancery division of the law.
Bill of Complaint - a statement by a Complainant in a Chancery action that set forth the facts of his or her case and asked the court for equitable relief. The bill of complaint had to include the Complainant's and Respondent’s names and places of residence, a narrative of the facts of the case, the specific wrong or grievance that the complainant suffered, a “prayer for relief,” and a request that the court compel the respondent to answer the charges of the bill. This bill was also known as a Bill for Relief.
Bill of Costs - a document, written by the clerk from the fee book, that provided an itemized list of court costs in a case. An officer of the court delivered this document to the litigant responsible for paying the costs. Although a technical distinction existed between a bill of costs and a Fee Bill, clerks did not apply this distinction consistently. The data in this edition reflect this inconsistency. See also Fee Book.
Bill of Discovery - See Discovery.
Bill of Exceptions - a list of written objections to a trial judge's rulings or instructions, which the trial judge had to sign. An Appellant usually drew his or her Assignment of Errors from the Bill of Exceptions.
Bill of Exchange - an order directing someone to pay a specific amount to a third party; also known as a draft or a check.
Bill of Interpleader – See Interpleader.
Bill of Review - a document in which a litigant requested a court to examine a prior judgment to modify or reverse it. A litigant filed a bill of review rather than filing a Writ of Error with a superior court.
Bill of Revivor - a document that reinstated a bill, a case, or a judgment.
Bond - a document with which a person obligated himself or herself to pay a certain amount of money to another, often with a condition attached.
Bond for Costs - a document guaranteeing the payment of the court costs for a pending action.
Breach of Contract - the failure to perform an obligation. See also Assumpsit; Covenant; Contract.
Bribery - an offering in exchange for favorable action by a public official.
Brief - a written statement of a party's arguments.
Burglary - the forcible entry of a home at night with the intent to commit a felony.
C
Capias ad Respondendum - See Writ of Capias ad Respondendum.
Capias ad Satisfaciendum - See Writ of Capias ad Satisfaciendum.
Caveat Emptor - literally, “let the buyer beware”; a warning that the law provided no remedy for a purchaser who failed to inspect property fully before purchasing it.
Certificate of Division - a procedure by which a federal district judge and the Supreme Court justice in a circuit court, who disagreed on a point of law, could refer the issue to the United States Supreme Court for resolution. After the Supreme Court decided the issue, the case returned to the federal circuit court for final judgment.
Certiorari - literally, “to certify”; an order from a superior court to an inferior court to provide a certified copy of the proceedings in a particular case, which the superior court would review for irregularities.
Challenge - formal opposition to a person's ability to fill a particular role, such as juror; a peremptory challenge was opposition without assigning any reason, which the court had to allow. Also, a call to take part in a duel. See also Dueling.
Chancery - a division of the law devoted to settling issues for which there was no remedy in the common law; also called equity. See also the particular pleading process in Chancery Pleading.
Change of Venue - a relocation of a case to the court of another jurisdiction.
Chattel Mortgage - a lien on personal property to secure a debt.
Civil - divisions of the law that pertain to private rights (Chancery and Common Law) in contrast to the division of the law concerned with public rights (Criminal).
Class Action Suit - a legal action brought by a group of people who have a similar interest in the outcome of the case.
Clerk’s Docket - a record book of cases kept by the clerk of a particular court. This docket, organized by division within a particular term, typically included the name of the case, the plaintiff attorneys, and the legal action. It also sometimes included defendant attorneys, partial lists of witnesses, summons information, or other notes about the case.
Clerk’s Memorandum Docket - an informal notebook kept by the clerk of a particular court. This docket typically included brief details of some cases, including the name of the case, the plaintiff attorneys, the disposition, or other pieces of information.
Cognovit - an action in which a defendant confessed judgment against himself in favor of a particular individual for a particular amount. See also Confession.
Cognovit Actionem - a defendant's written confession presented in court after a case began that acknowledged the validity of the action against him. Defendants used this document to lessen court costs. It differed from a Warrant of Attorney in that the latter was created before any case began. See also Confession of Judgment.
Cognovit Note - a type of Promissory Note in which an individual instructed an attorney to confess judgment against him or her if he or she failed to pay the note. Creditors preferred such notes because they made collection of debts through the courts much simpler. The same result could be accomplished by creating and conveying a promissory note and a Warrant of Attorney at the same time. See also Confession of Judgment; Power of Attorney Appointment.
Cohabitation - living together; when it involved an unmarried man and an unmarried woman, it included an inference of Fornication. In antebellum Illinois law, cohabitation was a criminal offense in which a father had sexual relations with his daughter. See also Incest.
Comity - an obligation to grant a privilege out of respect and deference, not as a matter of right. Courts in one state would enforce the laws of another state according to the principle of comity.
Common Carrier - one who transported goods or passengers for any member of the public who paid the required fare. Railroads, stagecoaches, and ferries were usually, if not always, common carriers.
Common Law - a division of the law with jurisdiction over cases involving private injuries; the common law had specific remedies for dispute resolution. See also the particular pleading process in Common Law Pleading.
Commonplace Book - a glossary of case precedents and treatise references on particular topics that a lawyer kept in his office; when preparing a case, the lawyer would consult the book for Authorities on a particular issue.
Complainant - the plaintiff in a Chancery action.
Confession - in criminal cases, a voluntary admission of guilt for involvement in a crime; also, a common law action by which the defendant submitted a written confession to the plaintiff. See also Cognovit.
Confession of Judgment - the defendant’s admission that the court should decide for the plaintiff. See also Cognovit Note; Warrant of Attorney; Cognovit Actionem.
Conservator - a person whom the court appointed to care for the property of a mentally incompetent person. See also Guardian; Insanity.
Contempt of Court - disobedience to the rules, orders, or process of a court; the court had the power to punish such offenses.
Contingent Fee Agreement - a method of payment in which the client compensated the attorney in proportion to the size of the award that the client obtained.
Contract - an agreement between parties to do something or to avoid doing something; the imposition of mutual obligations. See also Breach of Contract.
Conversion - See Trover.
Conveyance - the transfer of property ownership between people by written instrument; the written instrument used to accomplish such a transfer.
Coroner - an officer of the court who, together with a jury, held an inquest concerning the death of a person who died violently; when the sheriff died or was unable to perform his duties, the coroner would serve all writs and processes, which the sheriff normally served.
Counterfeiting - creating an imitation article with an intent to defraud. Illinois law made it a criminal offense to produce, pass, or “utter” counterfeit coins, currency, or other documents. To utter was to declare or assert that the counterfeit article was genuine.
Court Record - the official record book of the court. This book consisted of court orders (common law, criminal) or decrees (chancery, probate) arranged chronologically. Entries included the name of the case, the legal action, and the specific activities by the litigants or the court in each case. The court record included a detailed description of the disposition of each case. See also Decree; Order.
Covenant - an action to enforce a Contract under seal or to recover damages for the Breach of a Contract under seal. The plaintiff has to show that the agreement was under seal, which made the agreement binding. Like Debt, Covenant could be used to enforce the payment of a “sum certain” of money. Covenant differed from Assumpsit in that the promise to pay was under seal.
Coverture - the status of a married woman, being under the protection and influence of her husband. A married woman in antebellum Illinois could not buy, sell, or contract in her own name without the concurrence of her husband. See also Feme Covert.
Criminal - a division of the law with jurisdiction over all cases involving violations of laws against the government. See also the particular pleading process in Criminal Pleading.
Cross-bill - an action taken by a defendant in an ongoing suit against the plaintiff or other defendants which pertains to the subject matter of the ongoing suit.
Cutting Timber - the criminal offense of trespassing on another’s property and cutting and removing timber from it.
D
Debt - an action to recover a specific amount of money that the defendant owed the plaintiff. The action could apply to Contracts under seal and contracts not under seal, expressed or implied contracts, verbal or written contracts. Plaintiffs also used the action of Debt to collect other debts, such as for goods purchased, services rendered, rent, or the penalty on a bond. It was one of the most commonly used common law actions in antebellum Illinois. Debt differed from Assumpsit in the nature of the award possible. A plaintiff sued in an action of Debt to collect a “sum certain” or a specific amount. In the case of a Promissory Note, the plaintiff sued in an action of Debt to collect the amount of the note and interest. A plaintiff sued in an action of Assumpsit to collect damages, so the amount of the debt could be uncertain and determined by the court or the jury. In the case of a promissory note, the plaintiff sued in an action of Assumpsit to collect damages for the defendant’s failure to pay the debt. The award could include the value of the note, interest, and additional damages that the plaintiff sustained.
Declaration - a statement by a plaintiff in a common law action that set forth the facts and the legal basis for his or her case. What the plaintiff needed to include in the declaration depended upon the form of action that he or she selected. However, the declaration had to include the name of the court, the term of the court, the names of the parties, the location of the alleged wrong, the relief that the plaintiff sought, and the facts supporting the plaintiff’s claim to relief. Some attorneys referred to a declaration as a narratio.
Decree - the judgment or sentence of a Chancery or Probate court. Interlocutory decrees were intermediate rulings on some plea or issue arising in the case. Final decrees settled the matter in dispute.
Dedimus Potestatem - literally, “we have given power”; a writ giving power to a named individual to perform a specific function, such as taking a deposition in a case.
Deed - a written instrument under seal establishing a Contract; specifically, such a document to convey Real Property.
Default Judgment - a court's ruling against a defendant who failed to plead his or her case within the allotted time. See also Nil Dicit; Nonsuit.
Demurrer - an exception by either party to the points of law made by the other party at any point in the pleading process; the judge either sustained or overruled the demurrer. If the judge sustained the demurrer and the error was fatal, the case ended; if the error was not fatal, the other party could amend his previous pleading. If the judge overruled the demurrer, the demurring party could re-plead on the facts of the case.
Deponent - an individual who gave information known to him or her in a written Deposition.
Deposition - the written testimony of a witness taken outside of court for use in a trial.
Detinue - an action to recover property that the defendant held unlawfully but had initially obtained lawfully. The plaintiff could request that the defendant either pay damages or return the property, but the defendant had the option to choose the remedy he or she preferred. Because of this anomaly, the actions of Trover, if the plaintiff preferred monetary damages, or Replevin, if the plaintiff sought the return of the goods, had largely replaced Detinue by the mid-nineteenth century.
Discovery - a Chancery action to compel a respondent to disclose information in response to a request by the complainant; an aid to a legal action that allowed a litigant, prior to trial, to obtain information from the other party.
Disinheritance - the process by which the owner of an Estate deprived an heir of his or her share of the estate.
Dismiss - to discharge, to dispose of; a court could dismiss a case on its own initiative or on the motion of either party.
Disorderly House - a house of unruly inhabitants who disturbed a neighborhood; often used to refer to a gaming house or a house of prostitution.
Disputant - a party to a non-litigated conflict.
Distress for Rent - an action by which a landlord seized a tenant’s personal property as a Lien for overdue rent; if the tenant failed to pay the rent, the landlord could sell the property to pay the rent.
Divided Judgment - the disposition of a case with multiple defendants in which the court issued different judgments against one or more of the defendants; or the disposition of a case with multiple counts against one defendant in which the court issued judgments on different counts. For example, the court might have dismissed a case against one defendant and ruled for the plaintiff against another defendant; or the court might find the defendant guilty on one count and dismiss the other counts.
Divorce - the dissolution of a marriage contract by a court or by legislation. From statehood in 1818, Illinois courts granted divorces on the grounds of Adultery, Bigamy, and Impotence. The legislature added the grounds of willful desertion in 1824, and in 1827, Fraud, repeated cruelty for two years, and habitual drunkenness for two years. In 1845, conviction of a Felony became an additional ground for divorce.
Domicile - the place of a person’s permanent and principal residence.
Double Jeopardy - a second prosecution for the same crime for which a defendant had already been tried.
Dower - a form of Estate that provided for a widow's needs out of her husband's real and personal property; such property was not subject to creditor’s demands. In antebellum Illinois, the widow of a man with children received one-third of the land that her husband owned at any time during their marriage for the rest of her life, unless she relinquished her dower rights in the prescribed manner. If her deceased husband had no children, the widow received outright ownership of one-half of the estate.
Due Process - the administration of the law through the courts; specifically, the rights afforded to all citizens to such elements of the legal process as notification of a pending legal action and the opportunity to testify on one’s own behalf.
Dueling - a fight between two persons at a designated site based on an earlier dispute. The practice was illegal in Illinois from statehood in 1818. Both sending a challenge and receiving a challenge to fight a duel were illegal, and the person who killed another in a duel could be indicted for murder. See also Challenge.
Duress - unlawful pressure exerted on someone to force him or her to perform some act.
Dying Declaration - statement made by an individual near the point of death relating to the cause of his or her demise, which was admissible as evidence in a homicide trial.
E
Ejectment - an action to recover land or other real property and to collect damages. Originally, in the English common law, only tenants could use this action to recover possession of land from which they had been unlawfully ousted. Because of the simplicity and swiftness of the ejectment procedure, landowners began to use this action to recover land. To do so, the landowner, on behalf of a fictitious tenant (John Doe), sued a fictitious defendant (Richard Roe) for ousting the fictitious tenant. The court titled such cases John Doe ex dem. “Landowner” v. Richard Roe. When the defendant appeared in court, the clerk sometimes replaced “Richard Roe” with the defendant’s real name. In 1839, the Illinois legislature abolished the need for the fictitious names. The losing party in an ejectment case was entitled by law to one new trial simply by paying the court costs. See also Forcible Entry and Detainer.
Elisor - an individual whom the court empowered to perform the duties of a sheriff, when the sheriff and the Coroner were unable to perform those duties.
Embezzlement - the theft of property or money entrusted to an individual in the course of his or her employment.
Eminent Domain - the official right of the state to take over private property for public use.
Engrossed Docket - a record book of cases kept by the clerk of the United States Supreme Court. This docket typically included the name of the case, the attorneys, and a chronological outline of the activity in the case.
Equity - See Chancery.
Estate - generally, the interest that a person had in real or personal property; specifically, the total property owned by a deceased person, prior to the distribution of that property through administration. See also Probate.
Estoppel - stopping a person from denying a fact that the court had already accepted based on that person's prior assertions.
Estray - wandering livestock of unknown ownership.
Et Ux. - an abbreviation for et uxor, "and wife"; a common reference in deeds, mortgages, and other legal documents to the wife of a particular individual. When both a husband and a wife were parties to a case, the case name usually included the husband's name followed by "et ux." Although the wife was a party to the case, her legal identity was under the cover of her husband's. See also Coverture.
Ex Parte - literally, “on one side only”; a proceeding for the benefit of one party only and without adversarial parties. See also In Re.
Ex Post Facto Law - a law that provided for the punishment of an act, which was legal when committed.
Ex Relatione - literally, “upon the relation or information of”; proceedings instituted by a state’s attorney or attorney general on the information of an individual who had an interest in the proceedings. Case names took the form of People ex rel. Smith v. Jones, where People was the plaintiff and Smith was the subject of the ex relatione proceeding.
Exception - an objection to the decision of a judge during a trial; an objection to the other party’s pleading on the grounds that it was insufficient. See also Bill of Exceptions.
Execution - the process of carrying a court's order into effect. See also Writ of Execution.
Execution Docket - a record book of the execution of the judgment in each case kept by the clerk of a particular court. This docket, organized chronologically by the date of the Writ of Execution, typically included the names of the litigants, the disposition, the amount of the judgment and court costs, the officer of the court responsible for collecting the judgment, and the date of Satisfaction.
Executor - a person appointed by an individual in a will to preside over the deceased person’s estate. A woman who performed these duties was an executrix. See also Administrator.
Exemption - freedom from an expected burden such as tax or military service.
Express Authority - specific permission for an agent to perform an act on the principal’s behalf.
Extortion - illegally demanding and receiving money from another.
Extradition - the transfer of a criminal defendant from one jurisdiction to another to face trial and punishment.
F
False Imprisonment - an unjustified denial of liberty through arrest or detention. The person thus detained might obtain his or her release through a writ of Habeas Corpus; he or she could then sue in an action of Trespass Vi Et Armis for damages for false imprisonment.
Fee Bill - a document, written by the clerk from the fee book, that provided an itemized list of the court costs. An officer of the court delivered this document to the litigant responsible for paying the costs. Although a technical distinction existed between a Bill of Costs and a fee bill, clerks did not apply this distinction consistently. The data in this edition reflect this inconsistency. See also Fee Book.
Fee Book - a record book of the costs of cases kept by the clerk of a particular court. This book typically included the name of the case, an itemized list of the court costs, and the date of satisfaction. Entries sometimes included a list of witnesses.
Felony - a criminal offense of greater weight than a Misdemeanor, usually equated with punishment by imprisonment.
Feme Covert - a married woman. See also Coverture.
Feme Sole - an unmarried woman; widows and divorced women were also femes sole.
Forcible Detainer - the refusal to return possession of real property by one who once lawfully held it, but no longer had a possessory right.
Forcible Entry - the violent taking of Real Property without legal authority.
Forcible Entry and Detainer - a statutory action to recover Real Property quickly in a justice of the peace court in cases where the defendant took the property from the plaintiff. If unsuccessful, the plaintiff could appeal to the circuit court, where the case would be re-tried. Forcible Entry and Detainer was a similar remedy to Replevin for personal property. See also Ejectment.
Foreclosure of Mortgage - an action to recover Real Property held under a Mortgage. An individual frequently secured a debt with a mortgage on real property. If he or she was unable to pay the debt, the creditor sued to foreclose the mortgage on the property. In many cases, the Respondent had the opportunity to Redeem the property by paying the debt, but a strict foreclosure barred the right to redeem the land forever. See also Scire Facias.
Forfeiture - the loss of a right as a penalty or because of some crime.
Forfeiture of Recognizance - the failure to appear in court, which carried a corresponding monetary penalty. A criminal defendant typically filed a Recognizance Bond to ensure his appearance for trial. If he failed to appear, he forfeited his Recognizance and had to pay the sum stipulated in the recognizance bond.
Forgery - the creation or alteration of a written document with an intention to deceive or defraud.
Fornication - voluntary sexual intercourse by an unmarried person with another person, who was either married or unmarried.
Fraud - making a false representation or concealing the truth, with an intention to deceive.
Frauds, Statute of - See Statute of Frauds.
G
Gambling - See Gaming; Wagering.
Gaming - playing a game of chance, such as with cards or dice, for money.
Garnishee - a person who possessed money or property owed to a defendant; the court attached the money or property by ordering the garnishee to keep it pending the outcome of the case against the defendant. If the court ruled for the plaintiff, the garnishee paid the money directly to him or her. If the court ruled for the defendant, the garnishee paid the debt as he or she had planned.
Garnishment - the process by which the court ordered a third party (a Garnishee) who owed money to a defendant to pay the money directly to the plaintiff as part of the judgment in the case.
Grandfather Clause - a clause inserted into legislation that allowed a person already engaged in a certain type of activity before the passage of the legislation to be exempt from the provisions of the legislation. It was a means of promoting the interests of those already established in a certain activity, over those new to it.
Guarantor - an individual who made a Guaranty.
Guaranty - an agreement to satisfy the debt or to perform the obligation of another individual if that person defaulted on his or her obligation. See also Security; Surety.
Guardian - an individual whom the court appointed to care for and manage the interests of a Minor or an incompetent person. The relationship between a guardian and his or her ward ended when a minor reached adulthood or when other disabilities ceased. A guardian ad litem was a special guardian whom the court appointed to represent a minor or an incompetent person in specific litigation then pending before the court. The status of the guardian ad litem ended when the specific litigation ended. See also Conservator.
Guardian Ad Litem's Answer - the initial pleading of the court-appointed representative of a Minor who was a party to some legal proceeding.
H
Habeas Corpus - literally, “you have the body”; a writ demanding that the state justify the legality of a person's detention. See also False Imprisonment.
Hotchpot - an action in which heirs restored real or personal property to an estate, so that the court could divide the Estate equitably among all of the heirs.
Hung Jury - a jury unable to agree on a verdict.
I
Implead - the practice of bringing a new party into an action who may be liable to the person who brought him or her into the case.
Impotence - an individual's inability to perform a sexual act; more specifically in the nineteenth-century context, infertility.
In Forma Pauperis - literally, “in the manner of a pauper”; a court could grant a poor person permission to sue “in forma pauperis,” or without paying court costs.
In Re - literally, “In the matter of”; a type of case, usually in Bankruptcy or Probate proceedings, in which an individual brought a matter before the court so that the court could take action on it. There were no adversarial parties. See also Ex Parte.
Incest - criminal sexual intercourse between a man and woman who were related in a manner which would legally prohibit marriage. See also Cohabitation.
Indenture - historically, the crimps made in the original and copies of a document to prove the authenticity of the copies at a later date; it became synonymous with the deeds themselves and particularly Real Property transaction deeds in which both parties assumed obligations.
Indictment - a written accusation imputing criminal charges that a state’s attorney or the attorney general filed with a grand jury.
Infant - See Minor.
Injunction - an action to stop a specific activity; a judicial order to stop a specific activity.
Insanity - madness, derangement; an insane person might be unable to comprehend right and wrong or the consequences of his actions and therefore was not responsible for his behavior. See also Conservator.
Interpleader - a process by which an individual (the interpleader) who had possession of property but no interest in it forced rival claimants, each of whom claimed the property, to submit their claims for the court to determine who was the rightful owner.
Interrogatories - formal written questions used for examining a witness, usually in a Deposition.
Intestate Succession - the distribution of an Estate when the deceased left no Will or when the court found the will invalid.
J
Joinder - a point in the pleading process at which one party affirmed a fact and the other party denied it; one party typically wrote in a pleading document that he “put himself upon the country” and the other party inscribed on the same document that he “does the like.” This inscription was also called a similiter.
Judge's Docket - a record book of cases kept by the judge of a particular court. Before the term began, the clerk listed the pending cases in this docket by division, and it dictated the order in which the court heard the cases. This docket typically included the name of the case, the plaintiff attorneys, the legal action, and the disposition of the case (written by the judge). It sometimes also included the defendant attorneys.
Judgment Docket - a record book of the specific disposition of each case kept by the clerk of a particular court. This docket, organized chronologically by judgment date, typically included the name of the case, the specific disposition, and the date of Satisfaction.
Judicial Sale - the sale of property by a sheriff to Satisfy a judgment of a court; also known as a sheriff's sale.
Jurisdiction - the capacity, authority, and power of a judge to decide a case; the tract of land or district within which a judge or court had authority. Original jurisdiction was the authority of a court to rule first in a certain class of cases. Appellate jurisdiction was the authority of a court to rule on an appeal from an inferior court. Exclusive jurisdiction was the authority of a court to rule on cases that no other court could hear. Concurrent jurisdiction was the authority of a court to rule on cases that other courts could also legitimately hear.
Jury Instructions - the directions that a judge gave to the jury concerning the law applicable to the case. Attorneys frequently suggested specific jury instructions to the judge, who could accept or reject them.
K
L
Land Grant - a gift of public lands to a subordinate government, a private corporation, or a citizen.
Land Title - a document recording ownership of Real Property.
Land Transfer - the transmission of Real Property from one owner to another.
Land Warrant - a document issued from a local land office to the purchaser of public lands. The federal government conveyed property to the holder of the document when he presented it to the general land office in Washington, DC.
Larceny - the unlawful taking of someone's Personal Property without the consent of the owner and with the intent of converting the property to one’s own use.
Law Journal - a lawyer’s personal record of his cases.
Legal Tender - coin, paper money, or some circulating medium, authorized by law, which a creditor had to accept in payment of a debt.
Letter-Book - a record book of outgoing letters.
Letters of Administration - a document issued by an officer of a Probate court that enabled an Administrator to take charge of a person's possessions who had died without a Will (i.e. intestate).
Letters Testamentary - a document issued by an officer of a Probate court that enabled an Executor to take charge of a person's possessions who had died after having written a Will (i.e. testate).
Liability - responsibility; the obligation to do something, which might be enforced by law. This obligation might arise from a Contract or from a tort that required recompense.
Libel - an action to recover damages for publishing false and pernicious claims to defame a living individual; a statement by a plaintiff in an Admiralty action that set forth the facts and the legal basis for the case. See also Slander; Salvage.
Lien - a charge or security interest attached to real or personal property to satisfy a debt.
Loss of Services - compensation for the inability to perform labor. See Trespass Vi Et Armis; Seduction.
M
Malfeasance in Office - a broad term including any inappropriate conduct, which impeded official responsibilities. See also Misfeasance in Office; Neglect of Official Duty/Nonfeasance.
Malicious Mischief - willfully damaging someone's property, which was punishable by a criminal court or through a tort claim in a civil court.
Malicious Prosecution - an action to recover damages to property or reputation that a person suffered as a defendant in an unsuccessful civil or criminal proceeding that someone initiated maliciously.
Malpractice - professional wrongdoing or inexcusable lack of professional expertise.
Mandamus - literally, “we command”; an exceptional writ by which a court exercised its authority over a public official, such as a judge, and compelled him to perform an official duty. It was exceptional because a court resorted to it only when all other means of enforcement had been unsuccessful. See also Relator; Respondent.
Mandate - an order by the United States Supreme Court to an inferior federal court to enforce a judgment.
Manslaughter - the unlawful taking of another person’s life without malice.
Master in Chancery - an officer in a Chancery court who acted as an assistant to the judge. A master in chancery frequently conducted investigations, took testimony, estimated damages, sold land to execute judgments, and performed other tasks. A Master in Chancery’s Report was the document in which he reported his findings to the court.
Mechanic's Lien - a claim or encumbrance on property to secure a debt for the price of work performed and materials used in building or repairing a structure; the lien attached to the land as well as to the structure.
Minor - an individual below the age of legal competence; in antebellum Illinois, the age of legal competence for males was twenty-one years old; for females, it was eighteen years old.
Minor Heir - an individual below the age of legal competence who inherited property either by Will or by Intestate Succession. See also Minor.
Misdemeanor – a less serious criminal offense. See also Felony.
Misfeasance in Office - the improper performance of an official act, which the officer had legal authority to do. See also Malfeasance in Office; Neglect of Official Duty/Nonfeasance.
Mittimus - derived from Latin for, “we send,” a writ issued by a court commanding a sheriff to jail an individual until the court could deal with the charges against the individual.
Monition - a Summons in an Admiralty action.
Mortgage - a transfer of legal interest in property to a creditor as Security for the repayment of a debt. A mortgage deed was the document that gave the creditor an interest in the property. See also Foreclosure of Mortgage.
Motion - a formal application to a court to obtain some consideration or action.
Motion to Rule - an action in which a person sued a sheriff to convey money that the sheriff had collected and failed to deliver in an Execution of a judgment or from a Fee Bill.
Murder - the unlawful taking of another person’s life with malice.
N
Narratio - See Declaration.
Ne Exeat - See Writ of Ne Exeat.
Neglect of Official Duty/Nonfeasance - failure to perform a duty while in office. See also Malfeasance in Office; Misfeasance in Office.
Negligence - failure to exercise ordinary diligence.
Next Friend - a person who was not a party to the action but acted for the benefit of someone who could not sue on his or her own behalf (e.g. a Minor, a married woman, an incompetent person).
Nil Dicit - a Default Judgment against a defendant who had appeared in court but refused to file an Answer or a Plea.
Nolle Prosequi - a judgment in which the state’s attorney or the attorney general declared that he would not prosecute further the case against the specified defendants. On rare occasions, a judgment in which the plaintiff in a civil case appeared in court and declared that he would no longer prosecute one or all of the defendants.
Nonsuit - a Default Judgment against a plaintiff for court costs because he or she failed or refused to prosecute his or her case.
Notary Protest - a document that a notary public signed and sealed that certified that an individual had presented a bank draft or check to a third party, usually a bank, who had refused to pay it. This document served as the basis for a case by the holder against the maker of the draft or check.
Notice - a document that contained information that some activity had taken place or would take place. An individual posted a public notice in a newspaper or a public place.
Nuisance - an annoyance; any action that disturbed someone in the ordinary use and enjoyment of his property without actual Trespass, as for example, the smell from a hog farm or vibrations from mining explosions.
O
Obscenity - lewd or indecent conduct, offensive to public morals.
Office Fee Book - a record book of the fees that a lawyer charged for his services kept by a lawyer in his office. This book typically included the name of the client, the name of the case or transaction, the amount of the fee, and when and how much the client had paid.
Opinion - a statement by a judge or court embodying its decision on specific issues. On courts with more than one member, one of the justices typically wrote the opinion for the court. A majority opinion expressed the views of the majority of the justices and became the official decision of the court. A concurring opinion agreed with the decision of the majority but disagreed with the reasoning that led to that result. A dissenting opinion disagreed with the decision of the majority.
Order - the judgment or sentence of a court in a Common Law or Criminal action.
P
Paralegal - a person who performed legal services but who had not been admitted to practice as an attorney; used only with Lincoln and partners.
Pardon - a pronouncement by the governor that exempted a criminal offender from the remainder of the punishment that the law inflicted for his crime.
Partition - an action in which the plaintiff asked the court to divide specific real property among the co-owners; heirs typically used this action to request the division of a deceased person’s Estate.
Partnership - an agreement binding two or more people to join their money, labor, and skill in business and to share the loss or gain proportionately. See also Settle Partnership.
Patent Infringement - the unauthorized making, using, or selling of an invention covered by a grant of exclusive rights from the federal government to the inventor.
Perjury - a willful, false statement made under oath.
Personal Property - articles belonging to an individual, consisting of temporary and moveable objects.
Petition - a document requesting a court to correct some wrong or to grant some favor.
Petition and Summons - a simplified action for the collection of Promissory Notes and Bonds. The plaintiff in such an action simply filed a Petition with the clerk of the proper court, and the clerk issued a Summons for the defendant to appear in court.
Plat Map - a document that provided a graphical depiction of property divisions.
Plea - commonly, the defendant’s response to the plaintiff’s Declaration; technically, any pleading.
Plea in Abatement - a method of responding to a case when there were errors in identifying the parties to the case; e.g., a discrepancy in the name of one or more litigants on different documents, the death of a litigant before the case began, or the naming of someone who should not have been a party to the case. A defendant had to enter a plea in abatement before any other pleading. If successful, it ended the case but did not prevent the plaintiff from suing again after correcting the error. See also Abatement.
Plea in Bar of the Action - a method of responding to a case that denied all or most of the facts presented in the declaration or that admitted the facts but presented new facts by which the defendant avoided Liability.
Pluries - a prefix that indicated that the court had issued the specified writ two or more times but that it had failed to accomplish its purpose. The pluries version of a writ usually contained the phrase “as often times we have commanded you.” Courts sometimes issued such writs as a Summons, a Writ of Execution, or a Writ of Fieri Facias, several times. See also Alias.
Power of Attorney Appointment - a document that gave an agent, frequently an attorney, authority to perform specific acts on behalf of the person who made the appointment. See also Cognovit Note; Warrant of Attorney.
Praecipe - literally, “in practice”; a document from an attorney or a plaintiff instructing the clerk of the court to produce a writ as specified in the instructions.
Pre-emption - the right of a settler of a tract of public land to purchase it before other applicants.
Probate - a division of the law with jurisdiction over the proving of Wills, the granting of administration, and the settlement of estates by collecting assets, allowing claims, and distributing proceeds. See also the particular pleading process in Probate Pleading.; Estate.
Procedendo - the process of returning a case to the inferior court from which it had been removed on insufficient grounds; the writ of procedendo instructed the inferior court to proceed to final resolution.
Promissory Note - a written instrument contracting for the payment of a sum, at a time and place as specified in the note.
Prostitution - the exchange of money for sexual acts.
Q
Quackery - the practice of medicine without the necessary qualifications.
Quare Clausum Fregit - See Trespass Quare Clausum Fregit.
Quash - to annul or overthrow; courts typically quashed a defective Indictment or other document in response to a motion to quash.
Quiet Title - an action in which a plaintiff established his or her Title to a specific piece of Real Property by compelling the defendant to prove his or her Adverse Claim or to cease claiming ownership.
Quit Claim Deed - a Deed of conveyance that released title or interest in property without warranting the title's validity.
Quo Warranto - literally, “by what authority”; a writ issued to prevent the continued exercise of an unlawfully held office. It ordered a sheriff to summon the individual before the court to demonstrate “quo warranto” his holding the office was legitimate.
R
Rape - a nonconsensual, sexual act by a man with a woman.
Real Property - land and anything built on or otherwise affixed to the land; permanent and immovable objects.
Recognizance - a recorded obligation entered before a court containing a condition to do some act as specified in the record.
Recognizance to Keep Peace - an action in which the court ordered the defendant to post a Recognizance Bond insuring that he would not disturb the peace.
Recognizance Bond - a type of Security offered by a defendant being held over for trial, or while the case was on appeal. See also Forfeiture of Recognizance.
Redemption - the recovery of Real Property by the payment of a debt or judgment; repurchase of real property after a Judicial Sale.
Rejoinder - the defendant's second pleading; the defendant's answer to the plaintiff's Replication.
Relator - an individual who initiated a Mandamus proceeding; more generally, an individual who initiated any proceeding in the name of the people. See also Ex Relatione.
Relief - redress awarded to a Complainant in a court. It came in many forms, such as Specific Performance, monetary damages, and Injunction.
Relinquishment - abandoning or giving over a right or thing.
Remand - to send a case back to the original court from an appellate court, usually with instructions on how to proceed.
Remittitur - the return of a sum awarded by the court; remittitur damnum was the return of a sum awarded by the jury in excess of the amount requested.
Remonstrance - petition to a court or legislative body arguing that a proposal be rejected.
Replevin - an action to recover the plaintiff's personal property that the defendant refused to return. A sheriff returned the property to the plaintiff before any judicial hearing. The hearing determined whether the plaintiff should maintain possession of the property. The plaintiff had to post a Replevin Bond insuring that the property would be returned to the defendant if the plaintiff lost the case. Plaintiffs used Replevin to challenge an attachment of their goods by the sheriff, who often appeared as a defendant in Replevin cases.
Replevin Bond - a document that a plaintiff in a Replevin case gave to the sheriff for twice the value of the personal property that the sheriff would seize from the defendant. If the plaintiff lost the replevin case, the bond assured that he would return the personal property to the defendant or pay the penalty of the bond.
Replication - the plaintiff’s reply to the defendant's initial Plea in a Common Law case, or the Complainant’s reply to the Respondent’s Answer in a Chancery case.
Reprieve - from the Latin “to take back”; it signified the withdrawal of a sentence for a period of time.
Respondent - the defendant in a Mandamus proceeding; more generally, the defendant in a Chancery action.
Reverse - to annul or overthrow a former judgment; specifically, when an appellate court overthrew the judgment of an inferior court in a particular case.
Revivor - the reactivation of a bill, a case, or a judgment.
Right of Property - an action to determine who owned specific items of Personal Property. When a sheriff seized personal property from a losing litigant to satisfy a judgment and someone else claimed to own the property, the person claiming ownership sued the winning litigant to determine who owned the property. The sheriff or justice of the peace held a trial for the right of property.
Right of Way - a right created by agreement that allowed access to or passage on someone's land. See also Eminent Domain.
Riot - three or more people assembling to disturb the peace, which resulted in violence. See also Unlawful Assembly.
Robbery - the unlawful taking of goods or money by violence or threat of violence.
S
Salvage - an action within the Admiralty division of the federal courts requesting compensation for saving a ship or goods from loss or misfortune. See also Libel.
Satisfaction of Judgment - a discharge of legal obligation by payment of debt.
Scire Facias - a writ requesting judicial enforcement of a previous court order. It was commonly used to seek enforcement of a judgment that was more than one year old, after which normal Writs of Execution were no longer available. If the defendant appeared to defend against the writ of scire facias, the case proceeded like other actions. The defendant had to demonstrate why the plaintiff should not receive the benefit of the earlier decree. Litigants occasionally used this writ as a method of Foreclosing a Mortgage.
Scire Facias to Foreclose Mortgage - See Scire Facias.
Search Warrant - a court order for a sheriff or another officer to search property for stolen goods, evidence of a crime, or persons for arrest or questioning.
Security – a document that ensured the performance of some future action; an individual who ensured that another would perform some action. See also Guaranty; Surety.
Seduction - generally, enticing a woman without force to have sexual relations; specifically, if the woman were a minor and became pregnant, the action by which her parent sued the seducer for damages. While ostensibly a recompense for the loss of a pregnant daughter’s labor, the seduction action also served the purpose of punishing the seducer. After the 1846 decision of Anderson v. Ryan, the parent no longer needed to prove a literal loss of services; the loss of family reputation was a sufficient basis upon which to award damages. See also Loss of Services.
Self Defense - the act of protecting one's property or personal safety against attack by another; the right to protect one's property and person.
Sending Challenge - See Challenge; Dueling.
Separate Answer - the response by one Respondent to the Complainant’s allegations in a Bill of Complaint in a Chancery action against multiple respondents.
Set-off - the defendant's counter-claim against a plaintiff who had sued the defendant for the payment of money but who also owed the defendant money; if successful, the set-off reduced the plaintiff’s award by the amount of his debt to the defendant.
Settle Partnership - a chancery action to compel partners to report all debts and all assets in their control to the court for the purpose of dissolving the Partnership. The court usually appointed a receiver to investigate the matter and report to the court. After the receiver presented his report, the court awarded the appropriate amounts to the parties. See also Accounting.
Settlement - the conveyance of money or property to satisfy a dispute.
Similiter - See Joinder.
Slander – an action to recover damages for speaking false and pernicious statements to defame a living individual with damage to his or her reputation. See also Libel.; Trespass on the Case.
Specific Performance – an action in which a Complainant requested the court to order the Respondent to complete his or her contractual obligations.
Statute of Frauds – a legislative requirement that most Contracts had to be in writing if they were to be enforceable.
Statute of Limitations - a legislative requirement that set the time within which a party could bring a legal action to assert his rights. If the party failed to sue within that time, he lost the opportunity. In antebellum Illinois, the time limit varied by legal action from one year to twenty years. The statute of limitations did not apply to Minors, Insane Persons, or women under Coverture, until their status changed.
Stricken - to remove a case from a docket; a court typically struck a case that had been on the docket for several terms with no action. A court sometimes reinstated a stricken case at the request of a litigant or when new activity occurred.
Subpoena - a writ directing a sheriff to command the named witness to appear and testify in court at a specified time.
Subpoena Duces Tecum - a writ directing a sheriff to command the named witness to appear in court with specified documents at a specified time. Courts commonly employed this writ in cases of appeal to command an official of the inferior court to appear with his records.
Subpoena in Chancery - See Summons.
Summons - a writ directing a sheriff to notify the named person that an action had been brought against him or her and that he or she had to appear in court and answer the allegations at a specified time. Chancery courts sometimes referred to a summons as a summons in chancery or a subpoena in chancery.
Summons Duces Tecum - a writ directing a sheriff to notify the named person that an action had been brought against him and that he had to appear in court with certain specified documents and answer the allegations at a specified time.
Summons in Chancery - See Summons.
Sunday Laws - laws which restricted activities like commerce on Sundays for religious reasons.
Supersedeas - a writ by a superior court commanding an inferior court to suspend the legal proceedings in a particular case.
Surety - a person who bound himself or herself to pay a penalty or to assume responsibility in the event that his or her principal failed to perform some obligation. See also Guaranty; Security.
Surrejoinder - the plaintiff's answer to the defendant's Rejoinder.
T
Temperance - restraint or moderation in any appetite, usually referred to alcohol.
Testamentary Capacity - the mental ability recognized by law as adequate for the making of a Will.
Testator - an individual who made a Will to express his or her desires concerning the distribution of his or her property after his or her death.
Testimony - verbal evidence offered by a competent witness under oath.
Tippling House - a place where individuals sold alcohol and allowed others to consume alcohol against the law.
Transcript - a certified copy of court proceedings or depositions as prepared by a court official. Court officials prepared a transcript of the court proceedings in all cases of appeal or change of venue.
Traverse - a direct denial of a fact alleged by the other party in pleading.
Trespass - an action to obtain compensation for a forcible wrong against the plaintiff. It applied to wrongs against the plaintiff personally (Trespass Vi Et Armis), against his or her land (Trespass Quare Clausum Fregit), or against his or her Personal Property. The plaintiff was entitled to damages if he or she could prove that the defendant used force or violence with immediate and direct consequences. If the plaintiff sustained a delayed injury, the court would not award damages in a Trespass action.
Trespass on the Case - an action to obtain compensation for a wrong against the plaintiff, when the situation did not fit the technical requirements for an action of Trespass. Trespass on the Case applied where the injury to the plaintiff was indirect rather than direct, where it was accidental with no force, where the property was not in the plaintiff’s possession, or where the property was intangible. Trespass on the Case applied to the misfeasance (wrong performance) of a Contract but not to nonfeasance (doing nothing). It also applied to cases of Slander or Libel. Clerks and lawyers frequently referred to the action as simply “Case.” The distinction between Trespass and Trespass on the Case was very fine and technical; in 1872, the Illinois legislature abolished the distinction.
Trespass on the Case on Promises - See Assumpsit.
Trespass Quare Clausum Fregit - a form of the action Trespass “wherefore he broke the close,” meaning that the defendant damaged the plaintiff’s real property by wrongfully entering within the boundaries of the plaintiff’s property. A plaintiff sometimes used this action to prosecute a person who cut timber on the plaintiff’s property.
Trespass Vi Et Armis - a form of the action Trespass “with the force of arms,” i.e. with violence; the defendant's act was an immediate injury to a person or property. See also Assault and Battery; Loss of Services; False Imprisonment.
Trover - an action to recover Personal Property, which the plaintiff lost, and the defendant found, converted to his or her own use, and refused to return. The defendant's actions had to involve a serious interference with the plaintiff's possession because the damages paid to the plaintiff amounted to a forced sale of the property to the defendant. The defendant became the owner of the property after paying the damages. It was considered to be a form of Trespass or Trespass on the Case. The action later became known as Trover and Conversion or simply Conversion.
Trust - a property right held by one party in the name of another party.
U
Unlawful Assembly - a minor crime consisting of a gathering of three or more people planning an event which, if fulfilled, would result in a riot. See also Riot.
Use Plaintiff - a person on whose behalf and for whose benefit someone else sued. Case names took the form of Smith for the use of Jones v. Thompson, where Smith was the plaintiff and Jones was the use plaintiff.
Usury - the charging of excessive interest in a loan Contract. In 1833, an Illinois statute set the normal interest rate on loans at 6 percent per year. If the parties agreed, the interest rate could legally be as much as 12 percent annually; an 1849 statute lowered the permissible agreed limit to 10 percent annually.
V
Vacate - to annul, to render an act void; a court could vacate a judgment if new circumstances warranted reconsideration of the judgment.
Variance - a deviation between the facts alleged in a case and the facts proved in a case. Such a discrepancy frequently ended a case with a Nonsuit.
Venditioni Exponas - See Writ of Venditioni Exponas.
Vendor's Lien - a claim or encumbrance on the real or personal property of another to enforce payment of a debt for the price of goods.
Verdict - the decision of a jury or a judge on matters submitted to them in a trial.
W
Wagering - betting for money on the results of an event, such as an election.
Warrant of Attorney - a document that authorized one or more named attorneys to appear in any court and to confess judgment in favor of a named individual for a specific debt on behalf of the person giving the warrant; a type of Power of Attorney Appointment. Creditors preferred that such documents accompany notes or bonds because they simplified the collection of debts through the courts. A warrant of attorney differed from a Cognovit Actionem in that the latter was created after a case began. See also Cognovit Note; Confession of Judgment.
Willful Mischief - See Malicious Mischief.
Will - a written declaration of the manner in which the Testator wanted his or her property distributed after his or her death.
Witness Affidavit - a sworn written statement that the Affiant had appeared as a witness in a particular case and that he or she requested the payment of his or her witness fees.
Writ of Attachment - an order for a sheriff to seize a debtor’s real or personal property to secure a creditor’s claim before the court; a writ authorizing a sheriff to arrest and bring before the court an individual whom that court held in Contempt of Court.
Writ of Capias ad Respondendum - a writ that notified a defendant of a suit and empowered a sheriff to seize and hold the defendant until the trial or to force the defendant to post bail. In criminal cases, this writ served the function of a Summons. To obtain a writ of capias ad respondendum, the plaintiff had to present evidence to the clerk that the defendant was guilty of fraud and that the plaintiff might lose his or her judgment.
Writ of Capias ad Satisfaciendum - a Writ of Execution that directed a sheriff to arrest and hold in custody the losing party until he or she paid the debt or performed another obligation arising from a judgment by the court.
Writ of Certiorari - See Certiorari.
Writ of Error - a document describing a misapplication or misconception of the law by the court as grounds for review by an appellate court.
Writ of Execution - an order for a sheriff to seize and sell real or personal property in satisfaction of a judgment. This writ and a Writ of Fieri Facias were functionally interchangeable.
Writ of Fieri Facias - a Writ of Execution that directed a sheriff to seize the losing party's personal goods or real property and sell them to raise funds to pay the winning party the amount of money owed from a judgment by the court. This writ and a writ of execution were functionally interchangeable.
Writ of Habeas Corpus - See Habeas Corpus.
Writ of Inquiry - a document ordering the sheriff to convene a jury to determine the amount of damages in a case in which the defendant defaulted, and the damages had not been explicitly determined. The jury informed the court of the amount of damages, and the court was free to accept or reject the jury’s finding when entering the final judgment.
Writ of Ne Exeat - literally, “do not leave”; a writ forbidding an individual from leaving a court’s jurisdiction.
Writ of Possession - a Writ of Execution, usually in an action of Ejectment, that ordered a sheriff to seize specific Real Property that the losing party had failed to turn over to the winning party as ordered by the court.
Writ of Procedendo - See Procedendo.
Writ of Scire Facias - See Scire Facias.
Writ of Supersedeas - See Supersedeas.
Writ of Venditioni Exponas - a Writ of Execution that directed a sheriff to sell property that he had seized under a Writ of Fieri Facias but that remained unsold.
Writ of Venire - a document ordering the sheriff to summon jurors for a particular case.
Writ Pro Retorno Habendo - a document ordering a sheriff to seize property from the plaintiff in a Replevin case and return it to the defendant after a judgment for the defendant.