A corpse may not be retained by an undertaker as security for unpaid funeral expenses, particularly if a body was kept without authorization and payment was demanded as a condition prece
Trang 1The SEC has responded to these problems
by requiring greater oversight of the accounting profession in the United States New regulations have also modified the accounting methods that
by these companies employed Nevertheless, public confidence in U.S corporations and the capital markets remains shaken, and much of the criticism has focused upon the lack of oversight regarding corporate directors and officers Many have called for reforms that will hold these directors and officers responsible in instances of malfeasance
FURTHER READINGS Barnet, Richard, and Ronald E Muller 1974 Global Reach The Power of the Multinational Corporation New York:
Simon & Schuster.
Brown, Bruce 2003 The History of the Corporation Available online at http://www.astonisher.com/archives/corpora-tion/corporation_intro.html; website home page: http://
www.astonisher.com (accessed September 1, 2003).
Cox, James D., Thomas L Hazen, and B N Cox 2003.
Corporations Frederick, MD: Aspen.
CROSS REFERENCES Bonds “Michael R Milken: Genius, Villain, or Scapegoat?”
(Sidebar); Golden Parachute; Greenmail; Instrumentality Rule; Preferred Stock; Stockholder ’s Derivative Suit;
Transnational Corporation.
CORPOREAL Possessing a physical nature; having an objective, tangible existence; being capable of perception by touch and sight
Under COMMON LAW, corporeal heredita-ments are physical objects encompassed in land, including the land itself and any tangible object on it, that can be inherited
Corporeal is the opposite of incorporeal, that which exists but is incapable of physical manifestation, as in the right to bring a lawsuit
CORPSE The physical remains of an expired human being prior to complete decomposition
Property and Possession Rights
In the ordinary use of the term, aPROPERTY RIGHT
does not exist in a corpse For the purpose of burial, however, the corpse of a human being is considered to be property or quasi-property, the rights to which are held by the surviving spouse
or NEXT OF KIN This right cannot be conveyed and does not exist while the decedent is living Following burial, the body is considered part of the ground in which it is placed Articles of
Delaware: The Mighty Mite
of Corporations
D
B
elaware may be among the United States’
smallest states, but it is the biggest when it
comes to corporations: more than a third of all
corporations listed by the New York Stock
Ex-change are incorporated in Delaware
Delaware’s allure is explained through a
combination of history and law Although in the
early 2000s the state’s corporations law is not
necessarily less restrictive and less rigid than other
states’ corporation laws, Delaware could boast
more corporation friendly statutes before model
corporation laws came into vogue As a result,
corporate lawyers nationwide are more familiar
with Delaware’s law, and its statutes and case law
provide certainty and easy access
Delaware, more than any other state, relies on franchise tax revenues; thus, Delaware, more than any other state, is committed to remaining a responsive and desirable incorporation site In addition, Delaware offers a level of certainty and stability: the state’s constitution requires a two-thirds vote of both legislative houses to change its corporations statutes
Delaware also has a specialized court that is staffed by lawyers from the corporate bar, and its highest court has similar expertise Lawyers in the state continually work to keep Delaware’s corpo-rate law current, effective, and flexible All combine to make Delaware the first state for incorporation
Trang 2PERSONAL PROPERTY that have been buried with
the body, such as jewelry, may be taken by their
rightful owner as determined by traditional
property rules or laws relating to DESCENT AND
DISTRIBUTIONor wills, as they are material objects
independent of the body
A corpse may not be retained by an
undertaker as security for unpaid funeral
expenses, particularly if a body was kept without
authorization and payment was demanded as a
condition precedent to its release
At times, the need to perform an autopsy or
postmortem examination gives the local
coro-ner a superior right to possess the corpse until
such an examination is performed The general
rule is that such examinations should be
performed with discretion and not routinely
Some state statutes regulate the times when an
autopsy may be performed, which may require
the procurement of a court order and written
permission of a designated person, usually the
one with property rights in the corpse
Burial Rights
The right to a decent burial has long been
recognized as COMMON LAW, but no universal
rule exists as to whom the right of burial is
granted Generally, unless otherwise provided
before death by the deceased, the right will go to
the surviving spouse; if there is none, it will go
to the next of kin When a controversy arises
concerning the right of burial, each case will be
considered on its own merits The burial right
per se is a sacred trust for those who have an
interest in the remains
Although the surviving spouse usually has
the principal right to custody of the remains
and to burial, special circumstances undermine
this right, such as the absence or neglect of the
surviving spouse or the separation of the parties
at the time of death
When there is no surviving spouse, the next
of kin, in order of age, have the burial rights,
unless a friend or remote relative is found by the
court to have a superior right The caretaker of
an elderly, childless decedent who lived with the
decedent for years prior to his or her death and
to whom the estate was bequeathed might have
a burial right that is superior to that of relatives
In the case of the death of a child of
divorced parents, the paramount privilege of
burial is awarded to the parent who had
custody
The preference of the deceased concerning the disposition of his or her body is a right that should be strictly enforced Some states confer this right, considering a decedent’s wishes of foremost importance
In most instances, the courts will honor the wishes of the decedent, even in the face of opposition by the surviving spouse or next of kin If for some reason a decedent’s wishes cannot be carried out, direction should be sought
by the court The court will decide how the body should be disposed of and will most likely do so according to the wishes of the surviving spouse
or next of kin, provided those wishes are reasonable and not contrary toPUBLIC POLICY When an individual wishes to direct the disposition of his or her remains, no formality is required Oral directions are considered to be sufficient, and an indivi-dual’s last wish will ordinarily be the controlling factor, provided it is within the limits of reason and decency
Occasionally, a decision by the person who holds the right to burial can cause controversy beyond the deceased’s family One of the more unusual cases involves the body of Ted Williams, one of the greatest baseball players
in the history of the game, as well as a military hero in World War II and the Korean War John Henry Williams, Ted’s son, decided when his father died in July 2002 to freeze the body in liquid nitrogen in a process called cryonics The body is stored in a warehouse in Arizona
Friends and family have suggested that Ted
In some cases, the need to perform an autopsy or postmortem examination gives the local coroner a superior right to retain possession of a corpse until the examination is performed.
AP IMAGES
CORPSE 239
Trang 3Williams wanted to be cremated, but his body remains in a frozen state John Henry’s decision has been a major controversy, not only among close friends and family, but among former teammates, baseball fans, and commentators
Duties as to Burial
Public policy favors the concept of what is colloquially referred to as a “decent burial.”
There is a strong societal interest in the proper disposition of the bodies of deceased persons It
is universally recognized that a duty is owed to both society and the deceased that the body be buried without any unnecessary delay This duty rests upon whoever has the right to bury the decedent At common law, the duty was imposed upon the person under whose roof the deceased died
Some state statutes specifically name those people who are charged with the duty of having
a decedent buried Statutes of this kind have been enacted for various policy reasons, such as the general interests of public health and the protection of public welfare, as well as the relief
of anxiety that some people might experience concerning the proper disposition of their remains
Rights to Disinterment
After a body has been buried, it is considered to
be in the custody of the law; therefore, disinterment is not a matter of right The disturbance or removal of an interred body is subject to the control and direction of the court
The law does not favor disinterment, based
on the public policy that the sanctity of the grave should be maintained Once buried, a body should not be disturbed A court will not ordinarily order or permit a body to be disinterred unless there is a strong showing of necessity that disinterment is within the interests
of justice Each case is individually decided, based
on its own particular facts and circumstances
The courts frequently allow a change of burial place in order to enable people who were together during life to be buried together, such as husbands and wives, or family members Disin-terment for the purposes of reburial in a family plot acquired at a later date is generally autho-rized by law, particularly if the request is made by the surviving members of the decedent’s family
Disinterment may be allowed under certain circumstances, such as when a cemetery has
been abandoned as a burial place or when it is condemned by the state by virtue of itsEMINENT DOMAINpower for public improvement Consideration of the deceased’s wishes as to his or her burial place is instrumental in a decision of a court as to whether or not a body should be disinterred Such wishes are of paramount importance but are not necessarily controlling in all cases, such as when subse-quent circumstances require a change of burial
In states that have statutes regulating the exhumation or removal of the dead, such statutes are controlling
Purchasing a lot in a cemetery entails a contract that obligates the purchaser and his or her survivors to abide by and observe the laws, rules, and regulations of the cemetery as well as those of the religious group that maintains it When a dispute over the right to disinter a corpse arises, the court must make a finding of fact as to whether or not the rules or regulations
of the cemetery forbid it
Rights of Particular Persons to Disinter-ment The surviving spouse or next of kin of a deceased person has the right to let the body remain undisturbed This right, however, is not absolute and can be violated when it conflicts-with the public good or when the demands of justice require it
Also, the right to change the place of burial
is not absolute, and the courts take various factors into consideration when deciding whether a body should be removed for burial elsewhere, such as the occurrence of unforeseen events If an elderly woman’s husband died and was buried in New York and she subsequently moved to California, she might be allowed to have his remains removed to a different location
to facilitate her visits to his grave
The consent of the surviving spouse of a decedent to the decedent’s original resting place
is another factor that the court will consider in determining whether a body may be disinterred, particularly if it is against the wishes of the next
of kin Once consent has been shown, the burial will usually not be disturbed in the absence of strong and convincing evidence of new and unforeseen events
If a body is improperly buried—that is, buried in a grave belonging to someone else who has not consented to the burial—the court will order the body removed for reburial
Trang 4A landowner who allows the burial of a
deceased person on his or her property cannot
later remove the body against the will of the
surviving spouse or next of kin On the other
hand, the landowner is entitled to object to the
removal of the remains from his or her land A
landowner may not assert that a burial was
made without his or her consent if he or she
fails to raise any objections within aREASONABLE
TIMEafter the interment of the decedent
Disinterment for Autopsies The disinterment
of a body may be ordered by the courts for the
purpose of an autopsy Courts may permit a
body to be exhumed and an autopsy to be
performed under certain circumstances in order
to discover truth and promote justice If
disinterment for the purpose of examination is
to be allowed,GOOD CAUSEand exigent
circum-stances must exist to make such action
neces-sary, such as controversy over the cause of
death, or to determine in an heirship
proceed-ing whether or not a decedent ever gave birth to
a child
Disinterment for an autopsy should not be
granted arbitrarily The law will only search for
facts by this method in the rarest of cases and
when there is a reasonable probability that
answers will be found through disturbing
interment
Civil Liabilities
A CIVIL ACTIONfor breach of contract as to the
care and burial of a corpse may be brought
under certain circumstances An individual who
makes an agreement to properly bury a corpse
may be subject to a lawsuit if he or she gives the
body an improper burial, negligently allows the
body to be taken from his or her custody, or
allows the body to suffer indignities while in his
or her possession
General rules that govern damages for
breach of contract have been applied in these
actions
In one case, an undertaker was sued for
failure to embalm a body in such a manner that
it would be preserved for a reasonably long
time The PLAINTIFF recovered damages for
illness and disability suffered when he found
out that the body had disintegrated and become
infested with insects as a result of the
under-taker’s breach of contract However, exemplary
orPUNITIVE DAMAGESare not recoverable in such
cases
Funeral or Burial Expenses Even in the absence of a contract or statute, a person may
be liable for funeral or burial expenses based on his or her relationship to the decedent, such as a
HUSBAND AND WIFE, or a PARENT AND CHILD Statutes may also dictate liability Some statutes designate the persons charged with the duty of burial but do not impose financial responsibility for burial or funeral expenses Others impose financial liability on designated people in the order in which they are named in the statute
Liability for burial expenses is not ordinarily imposed on someone merely because that person received a financial benefit as a result
of the decedent’s death A joint tenant will not
be charged with funeral expenses merely as a result of the joint ownership of property with the deceased
Contractual Liability An individual who would not ordinarily be obligated to pay for burial or funeral expenses may accept responsi-bility to do so by contract The terms of such an agreement must be very clear The mere direction to furnish funeral services does not automatically create a contract for their pay-ment Liability for funeral services cannot be imposed arbitrarily The obligation to pay the costs of a decent burial will be enforced by the law on those who should properly pay
Although there is a lack of authority on the question of who should bear the costs of disinterment and reburial, it has generally been held as the responsibility of the person who caused it to be done
Torts In the law of torts, there are a large number of cases involving the mishandling of corpses These cases are concerned with mutila-tion, unauthorized disinterment, interference with proper burial, and other types of intentional disturbance The breach of any duty as well as the unlawful invasion of any right existing with regard to a corpse is a tort for which an action may be commenced For example, if the wrong body is delivered to a funeral home and the family discovers this when they attend the wake, they may be able to recover damages for mental suffering Thus, the right of recovery is not necessarily based directly on injury to the corpse per se Exemplary damages may be awarded in cases where the injury to plaintiffs was either malicious or resulting fromGROSS NEGLIGENCE The award of damages is subject to appellate court review, and the adequacy or excessiveness
CORPSE 241
Trang 5of the amount awarded is dependent upon the particular circumstances of each case
A tort action for damages in such cases may
be maintained to protect the personal feelings of the survivors and, mainly, to compensate for the mental distress that has been caused
Mutilation, Embalmment, and Autopsy An important component of the right to decent burial is the right to possession of the body in the same condition in which it is left by death
There is no additional basis for recovery where mutilation is caused simultaneously with death,
as in the case of a person who dies in a train crash or who is fatally stabbed
Some statutes authorize the delivery of corpses to medical colleges for dissection under certain conditions It is mandatory, however, that the consent of relatives be obtained if such relatives can be found Only a reasonable inquiry is necessary, the duty of which is on the school and on those delivering the body
The unauthorized embalming of a body alone does not necessarily support a CAUSE OF ACTION for damages based upon mutilation
or mishandling When such unauthorized embalming occurs, combined with the resulting mental suffering of the next of kin and other such factors, a legal action may be brought If, for example, an unauthorized embalming contrary to the decedent’s religious beliefs is performed, an actionable wrong occurs for which damages may be granted
Generally, an unauthorized autopsy is a tort
No liability exists, however, when an autopsy is performed in accordance with the consent of the individual having burial rights or pursuant
to statute or the proper execution of the duties
of the coroner
Offenses and Prosecutions
Several varied offenses with respect to corpses are recognized both at common law and under statute At common law, it is an offense to treat
a corpse indecently by keeping, handling, and exposing it to view in order to create the impression that the deceased is still alive The attempt to dispose of a corpse for gain and profit is a misdemeanor punishable at common law Ordinarily, it is a misdemeanor for the individual possessing the duty of having a body buried to refuse or neglect to do so, or to dispose of the corpse indecently The burning of
a corpse in such a way as to incite the feelings of the public is a common-law offense
At common law and often under statute, interfering with another person’s right of burial
or neglecting to bury or cremate a body within a reasonable time after death is an offense It is also a crime to detain a body as security for the payment of a debt
The mutilation of a corpse is an offense at common law, and under some statutes, the unauthorized dissection of a corpse is a specific criminal offense Someone who receives a corpse for the purpose of dissection with the knowledge that it has been unlawfully removed
is subject to prosecution
The unauthorized disturbance of a grave is indictable at common law and by statute as highly contrary to acceptable community con-duct Similarly, the unauthorized disinterment
of a body is a criminal offense under some statutes and at common law
Some statutes make disinterment for speci-fied purposes an offense; therefore, an offense is not committed unless disinterment was done for such purposes A case where a body was exhumed and a portion of the body was removed by the next of kin for use as evidence
in a malpractice trial, however, did not warrant prosecution for removal of the body because of mere wantonness, as set forth in a statute Under laws that proscribe opening a grave
to remove anything interred, the act is for-bidden per se and is conclusive as to the intent with which it is done In such cases, noSPECIFIC INTENT, whether felonious or otherwise, needs to
be shown
Statutes that make make disinterment an offense do not apply to exhumations made by public officials attempting to ascertain whether
a crime has been committed Similarly, statutes are not directed against cemetery authorities who wish to change the place of burial and who are authorized to do so; nor are they directed against people who had obtained the permission
of those having burial rights or against those who, under necessary permit, remove the corpse of a relative for reinterment
CORPUS [Latin, Body, aggregate, or mass.]
Corpus might be used to mean a human body, or a body or group of laws The term is
Trang 6used often inCIVIL LAWto denote a substantial or
positive fact, as opposed to one that is
ambiguous The corpus of a trust is the sum
of money or property that isSET ASIDEto produce
income for a named beneficiary In the law of
estates, the corpus of an estate is the amount of
property left when an individual dies CORPUS
JURIS means a body of law or a body of the
law Corpus Juris Secundum (C.J.S.®) is an
all-inclusive, multivolume legal encyclopedia
CORPUS DELICTI
[Latin, The body of the crime.] The foundation
or material substance of a crime
The phrase corpus delicti might be used to
mean the physical object upon which the crime
was committed, such as a dead body or the
charred remains of a house, or it might signify
the act itself, that is, theMURDERorARSON
The corpus delicti is also used to describe the
evidence that proves that a crime has been
committed
CORPUS JURIS
[Latin, A body of law.] A phrase used to designate
a volume encompassing several collections of law,
such as the Corpus Juris Civilis The name of an
American legal encyclopedia, the most recent
edition of which is known as Corpus Juris
Secundum (C.J.S.)
CORPUS JURIS CIVILIS
[Latin, The body of the civil law.] The name
given in the early seventeenth century to the
collection of civil law based upon the compilation
and codification of the Roman system of
jurispru-dence directed by the Emperor Justinian I during
the years from 528 to 534A.D
CORRELATIVE
Having a reciprocal relationship in that the
existence of one relationship normally implies
the existence of the other
Mother and child, and duty and claim, are
correlative terms
In the law governing gas and oil
transac-tions, a correlative right is the opportunity of
each owner of land making up part of a
common source of supply of oil and gas to
produce an equitable share of such products
In the law governing WATER RIGHTS, the correlative rights doctrine gives the individual owners of land overlying a strata of percolating waters limited rights to use the water reasonably when there is not enough water to meet the needs of everyone in the area
CORRESPONDENCE AUDIT
An examination of the accuracy of a taxpayer’s income tax return conducted through the mail by the Internal Revenue Service, which sends the taxpayer a request for proof of a particular deduction or exemption taken by either complet-ing a special form or sendcomplet-ing photocopies of relevant financial records
A correspondence audit is distinguishable from a FIELD AUDIT and an OFFICE AUDIT in the manner in which it is conducted
CORRESPONDENT
A bank, securities firm, or other financial institution that regularly renders services for another in an area or market to which the other party lacks direct access A bank that functions as
an agent for another bank and carries a deposit balance for a bank in another city
SECURITIES firms may have correspondents
in foreign countries or on exchanges—
organizations that provide facilities for conven-ing purchasers and sellers ofsecurities—of which the firms are not members
The term correspondent is distinct from corespondent—a person summoned to respond
to litigation, together with another person, particularly, a paramour in a divorce action based onADULTERY
CORROBORATE
To support or enhance the believability of a fact
or assertion by the presentation of additional information that confirms the truthfulness of the item
Thetestimony of a witness is corroborated if subsequent evidence, such as a coroner’s report
or the testimony of other witnesses, substanti-ates it
CORRUPTION OF BLOOD
In English law, the result of attainder, in that the attainted person lost all rights to inherit land or other hereditaments from an ancestor, to retain
CORRUPTION OF BLOOD 243
Trang 7possession of such property and to transfer any property rights to anyone, including heirs, by virtue of his or her conviction for treason or a felony punishable by death, because the law considered the person’s blood tainted by the crime
Attainder and the consequent corruption of the blood were abolished by English statutes and are virtually unknown in the United States
vCORWIN, EDWARD SAMUEL Edward Samuel Corwin was a noted historian, political scientist, and CONSTITUTIONAL LAW
scholar
Born January 19, 1878, on a farm in rural Plymouth, Michigan, Corwin graduated Phi Beta Kappa from the University of Michigan
in 1900, where he was president of his class He entered graduate school at the University of Pennsylvania, earning his doctor’s degree in
1905 Corwin then took a teaching position at Princeton University, where he began a long association with Woodrow Wilson, then presi-dent of Princeton Wilson had recruited Corwin
to be one of the first faculty at the university to teach undergraduates in small seminars called precepts, one of Wilson’s many educational innovations Wilson and Corwin quickly be-came friends, though Corwin often disagreed with Wilson’s more conservative views Corwin was selected by Wilson to update his book Division and Reunion, and Corwin wrote part 6
of the text, which was published in 1909
In 1911 Corwin was promoted to full professor Seven years later, he was appointed
to a chair first occupied by Wilson, the McCormick Professor of Jurisprudence, which
Corwin held until his retirement from Prince-ton in 1946 In 1924, he also became chair of the newly formed Department of Politics Corwin was known at Princeton as a demand-ing yet popular professor; students regularly voted his courses on constitutional interpreta-tion as the most difficult but also the most valuable
While pursuing his teaching career, Corwin authored an impressive number of books and articles In his first book, National Supremacy— Treaty Power vs State Power (1913), Corwin explored the complex relationship between federal and state powers in foreign affairs His later books, including The President: Office and Powers (1940, 3d ed 1948), The Twilight of the Supreme Court (1934), Court over the Constitu-tion (1938), ConstituConstitu-tional RevoluConstitu-tion, Ltd (1941), The Constitution and World Organiza-tion (1944), Total War and the ConstituOrganiza-tion (1947), and Liberty against Government (1948) established him as a preeminent authority on the Constitution Some of his books—including The Constitution and What It Means Today (first published in 1920 and now called Edward S Corwin’s Constitution and What It Means Today) and The CONSTITUTION OF THE UNITED STATES of America: Analysis and Interpretation (1949)—are considered standard texts in the field of constitutional law and are still kept current
In addition to his work at Princeton, Corwin served as a visiting professor and lecturer at major universities, including Johns Hopkins University, New York University, Boston University, and Yale University From
1928 to 1929 he was visiting professor at
Edward Samuel Corwin 1878–1963
◆
◆
◆
◆
◆
◆
❖
1878 Born,
Plymouth, Mich.
1905 Joined Princeton University faculty
1913 National Supremacy—Treaty
Power vs State Power published
1914–18 World War I
1918 Appointed McCormick Professor of Jurisprudence
1920 The Constitution and What It Means Today published
1924 Became chairman of the new Dept of Politics at Princeton 1928–29
Taught at Yenching University
in Beijing
1935–37 Served
as advisor
to Roosevelt administration
1939–45 World War II
1946 Retired from Princeton
1949–52 Served as editor of the Legislative Reference Section of the Library of Congress
1950–53 Korean War
1963 Died, Princeton, N.J.
1961–73 Vietnam War
1948 Liberty against Government published
WHAT THE
PRESIDENCY IS AT
ANY PARTICULAR
MOMENT DEPENDS IN
IMPORTANT MEASURE
ON WHO IS
PRESIDENT
—E DWARD C ORWIN
Trang 8Yenching University, in Beijing He was also the
recipient of a number of major awards,
including the American Philosophical Society’s
Franklin Medal in 1940 and the Henry M
Phillips Prize in the Science and Philosophy of
Jurisprudence in 1942
Corwin’s expertise eventually led him to
federal government service In 1935 he became
adviser to the Public Works Administration,
and from 1936 to 1937 he acted as special
assistant and consultant to the attorney general,
on constitutional issues He publicly supported
President Franklin D Roosevelt’s court-packing
plan—a bill proposed by Roosevelt to expand
the U.S Supreme Court so that he could
nominate justices who would upholdNEW DEAL
legislation—but opposed Roosevelt’s run for a
third term as a breach of tradition
Corwin maintained an active career
follow-ing his retirement from Princeton in 1946
During the 1947–48 academic year, he served as
a visiting professor at Columbia University, and
from 1949 to 1952, he was an editor for the
Legislative Reference Section, LIBRARY OF
CON-GRESS, where he directed a major research
project that resulted in the multivolume
Constitution Annotated: Analysis and
Interpreta-tion (1952) In 1954 he became chairman of a
national committee opposed to the Bricker
Amendment, S.J Res 1, 83d Cong., 1st Sess
(1953), which had been proposed to restrict the
president’s treaty-making power
Corwin, who died in 1963 at the age of 85,
carries the distinction of being the only
nonlawyer among the ten legal scholars and
writers most frequently cited by the SUPREME
COURT OF THE UNITED STATES Corwin was acutely
aware of his important role, noting that “if
judges make law, so do commentators.”
FURTHER READINGS
Corwin, Edward Samuel, ed 1953 The Constitution of the
United States of America: Analysis and Interpretation.
Washington, D.C.: U.S Government Available online
at http://www.gutenberg.org/etext/18637; website home
page: http://www.gutenberg.org (accessed September 1,
2009).
——— 1978 Edwin S Corwin’s Constitution and What it
Means Today Princeton, N.J.: Princeton Univ Press.
Loss, Richard, ed 1981 Corwin on the Constitution Ithaca,
NY: Cornell Univ Press.
COSIGNER
An obligor—a person who becomes obligated,
under a commercial paper, such as a promissory
note or check—by signing the instrument in conjunction with the original obligor, thereby promising to pay it in full
The cosigner may be held equally responsi-ble for the payment of the debt or may be required to pay only upon the failure of the original obligor to do so, depending upon state law and the terms of the agreement that also determine the rights of the cosigner
Cosigner is synonymous with the term comaker
COSTS Fees and charges required by law to be paid to the courts or their officers, the amount of which is specified by court rule or statute A monetary allowance, granted by the court to a prevailing party and recoverable from the unsuccessful party, for expenses incurred in instituting or defending
an action or a separate proceeding within an action
A bill of costs is a certified, itemized statement
of the amount of the expenses incurred in bringing or defending a lawsuit
A cost bond, or bond for costs, is a promise
to pay litigation expenses; it is provided by a party to an action as a guarantee of payment of any costs awarded against him or her A cost bond also might be required of an appealing party in a civil case, in order to cover the appellee’s expenses if the judgment is affirmed
Final costs are paid at the conclusion of an action, the liability for which depends upon its final outcome
Interlocutory costs accrue during the inter-mediate stages of a proceeding, as distinguished from final costs
Security for costs refers to an assurance of payment that a DEFENDANT may demand of a
PLAINTIFF who does not reside within the jurisdiction of the court, for the payment of such costs as might be awarded to the defen-dant
Statutory costs are amounts specified by law
to be awarded for various phases of litigation
The award of costs is not a penalty but is a method used to reimburse an innocent party for the expenses of litigation Costs include the payment of court fees for the commencement of the litigation; the submission of pleadings or other documents; or the SERVICE OF PROCESS or
COSTS 245
Trang 9other papers by a public officer The appoint-ment by a court of a referee to hear extremely technical testimony, or a receiver to retain and preserve the defendant’s funds or property during litigation, is included in costs Costs entail expenditures made in interviewing parties
or witnesses prior to trial and the fees that are properly paid to witnesses who testify Printing expenses for maps or necessary documents are also included
Costs do not include the compensation of
an attorney Expenditures in terms of the adversary nature of the proceedings, however, are included Only when specifically authorized
by law may attorney’s fees be awarded in addition to costs
Prevailing Party
A party must request the court to award costs
The court generally defers its decision until judgment is rendered, then determines whether the PREVAILING PARTY is entitled to costs The successful party is not required to prevail on every issue or to obtain the entire amount of damages sought Costs are also awarded to a party prevailing on appeal, even though the case was lost in the trial court
Under the Federal Rules ofCIVIL PROCEDURE, after which most states have patterned their own procedural rules,“costs shall be allowed as
of course to the prevailing party unless the court otherwise directs.” Since state laws vary on this subject, however, the applicable state law must
be consulted to determine the exact rules
Costs cannot be assessed against a party merely because of tenacity in pursuing the claim In Delta Air Lines, Inc v August, 450 U.S
346, 101 S Ct 1146, 67 L Ed 2d 287 (1981), the justices held that plaintiffs who lose their lawsuits in federal court after rejecting a settlement offer (a proposal to avoid litigation
by compromising a disputed claim that does not admit liability) are not required to pay the defendant’s costs and attorney fees
Parties may determine the imposition of costs pursuant to an agreement The court will enforce a contractual provision or a stipulation provided neither is unconscionable or the result
ofFRAUD When cases involve multiple parties—
more than one plaintiff or more than one defendant—a court may allocate costs among the losing parties
If one party is a stakeholder—a person who
is or might be exposed to multiple liability from adverse claims—the stakeholder’s costs are generally obtained from all the other parties to
an interpleader action or from the stake: funds
or property deposited by two persons with a third person, the stakeholder, for delivery to the person entitled to it upon the occurrence of a particular event
Amount
In some instances, the amount of costs is specified by law, which restricts a party who is awarded costs to the figure permitted by law for each component of the total costs
Security
A court may order a party to post a bond to guarantee that costs will be paid if he or she is unsuccessful Three other alternatives provide sufficient security: a signed statement by the party that he or she will pay determined costs; the deposit of sufficient funds with the court; or the promise of a person who accepts the obligation to pay in full if the party who would normally be responsible fails to do so
Denial of Costs
A court may deny costs, although they are ordinarily awarded to the prevailing party Misconduct, such as the concealment of a party’s actual financial circumstances, when relevant to the action, justifies the denial of costs A court that incurs additional, unneces-sary expenses as a result of inadequate prepara-tion of the case by the counsel of the prevailing party is entitled to reject a request for costs In such an instance, the court has the discretion
to order the attorney to pay a client’s costs, particularly where his or her actions were grossly negligent
Criminal Proceedings
Costs in criminal proceedings are those expenses specified by law that have been necessarily incurred in a criminal prosecution The concept of costs was unknown atCOMMON LAW The allowance of costs, therefore, is based
on the applicable statutory provisions
COUNCIL
A legislative body of local government A group of persons who, whether elected or appointed, serve
as representatives of the public to establish state or
Trang 10municipal policies and to assist the chief executive
of the government unit in the performance of
duties
COUNSEL
An attorney or lawyer The rendition of advice
and guidance concerning a legal matter,
contem-plated form of argument, claim, or action
The terms counsel and advise are frequently
employed as synonyms for the termAID AND ABET
to describe a person who, while not actually
performing a criminal act, induced its
perfor-mance or contributed to it
The term junior counsel refers to the
younger member of the team of attorneys
retained on the same side of a case, or the one
lower in the hierarchy of the firm, or one who is
assigned to the preparation or trial of less
significant aspects of the case
The term OF COUNSEL refers to the
descrip-tion given to an attorney who is not the
principal lawyer in charge of a case but who
merely contributes his advice on the way it
should be handled
Where of counsel follows an attorney’s name
on a letterhead or office sign, this designation
indicates that the person is employed by the
firm primarily as a consultant on specialized
matters, not as a full-time partner or associate
COUNSELLOR
One engaged in the practice of law; lawyer;
advocate
The term counsellor is commonly used
interchangeably with attorney, except in a few
states where the terms refer to lawyers of
different ranks In such states, an attorney
may become a counsellor only after practicing
law for a certain designated period of time and
passing an additional examination
Formerly, the SUPREME COURT OF THE UNITED
STATESmade a distinction between a counsellor
and an attorney A counsellor was a lawyer who
litigated on a party’s behalf whereas an attorney
AT LAW did not do any trial work This
distinction is no longer made by the Court
COUNT
In common-law pleading or code pleading, the
initial statements made by a plaintiff that set forth
a cause of action to commence a civil lawsuit; the
different points of a plaintiff’s declaration, each of which constitute a basis for relief In criminal procedure, one of several parts or charges of an indictment, each accusing the defendant of a different offense
The term count has been replaced by the word complaint in the Federal Rules of CIVIL PROCEDURE and many state codes of civil procedure Sometimes count is used to denote the numbered paragraphs of a complaint, each
of which sets out an essential element of the claim
Federal and state rules ofCRIMINAL PROCEDURE
govern the standards that a criminal count must satisfy in federal and state criminal matters
COUNTERCLAIM
A claim by a defendant opposing the claim of the plaintiff and seeking some relief from the plaintiff for the defendant
A counterclaim contains assertions that the
DEFENDANTcould have made by starting a lawsuit
if thePLAINTIFFhad not already begun the action
It is governed by many of the same rules that regulate the claims made by a plaintiff except that it is a part of the answer that the defendant produces in response to the plaintiff’s com-plaint In general a counterclaim must contain facts sufficient to support the granting of relief
to the defendant if the facts are proved to
be true These facts may refer to the same event that gave rise to the plaintiff’sCAUSE OF ACTION
or they may refer to an entirely different claim that the defendant has against the plaintiff
Where there is more than one party on a side, a counterclaim may be made by any defendant against any plaintiff or plaintiffs
According to the rules governing federal
CIVIL PROCEDURE, a defendant usually is required
to make a counterclaim in an answer if the counterclaim arises from the same transaction
or occurrence on which the plaintiff is suing
This is called a compulsory counterclaim because the claim must be made in response
to the plaintiff’s complaint and cannot be made later or in a separate lawsuit There are also permissive counterclaims that may be made in the defendant’s answer at a later time A claim against the plaintiff that is based on an entirely different event is one kind of PERMISSIVE COUNTERCLAIM For example, a man may sue a woman for money damages because of a minor
COUNTERCLAIM 247