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 Contents vii

Fraud 148
Defamation 149
Invasion of Privacy 150
Malicious Prosecution 151
Trespass 151
Conversion 152
Nuisance and Waste 152

Chapter 17 NEGLIGENCE AND PRODUCT LIABILITY 155

Elements of Negligence 156
Defenses to Negligence 159
Product Liability 160

PART FOUR Terms Used in Law of Contracts 165

Chapter 18 FORMATION OF CONTRACTS 166

Contract Formation 167
Contract Classifications 168
E-Contracts 171

Chapter 19 CONTRACT REQUIREMENTS 176

Contractual Capacity 177
Consideration 177
Contracts Required to Be in Writing 179
Defective Agreements 180
Agreements Unenforceable due to Illegality 182

Chapter 20 THIRD PARTIES AND DISCHARGE OF CONTRACTS 186

Third-Party Beneficiaries 187
Assignment and Delegation 187
Ending Contractual Obligations 188

Chapter 21 THE UNIFORM COMMERCIAL CODE AND SALES OF GOODS

CONTRACTS 195
Sales of Goods 196

PART FIVE Terms Used in the Law of Personal Property and Agency 205

Chapter 22 PERSONAL PROPERTY AND BAILMENTS 206

Personal Property vs. Real Property 210

Chapter 23 INTELLECTUAL PROPERTY 215

Patents 216
Trademarks 217
Copyrights 218
Trade Secrets 219
viii Contents

Chapter 24 LAW OF AGENCY 223

Relationships Distinguished 224
Kinds of Agents 225
Authority of Agents 225
Vicarious Liability 226

PART SIX Terms Used in the Law of Wills and Estates 231

Chapter 25 WILLS, TESTAMENTS, AND ADVANCE DIRECTIVES 232

Parties to a Will 233
Statutory Requirements for a Will 233
Advance Directives 238

Chapter 26 REVOCATION, LAPSE, AND ADEMPTION 243

Revocation 244
Failure of Legacies and Devises 245

Chapter 27 PRINCIPAL CLAUSES IN A WILL 252

Exordium Clause 253
Debts and Funeral Expenses 253
Dispositive Clauses 253
Residuary Clause 253
Personal Representative, Guardian, and Trustee 254
No Surety on Bond 254
Powers Given to Fiduciaries 254
Tax Apportionment Clause 254
No-Contest Clause 255
Testimonium Clause 255
Attestation Clause 256
Self-Proving Affidavit 256

Chapter 28 DISINHERITANCE AND INTESTACY 260

Spousal Protection 261
Dower and Curtesy 261
Pretermitted Children 262
Homestead Protection 263
Distinctive Relationships 263
Intestacy 263

Chapter 29 PERSONAL REPRESENTATIVE OF THE ESTATE 269

Estate Settlement 270
Titles of Personal Representatives 270

Chapter 30 SETTLING AN ESTATE 276

Steps in Estate Settlement 277
Contesting a Will 279
 Contents ix

Chapter 31 TRUSTS 283

Parties to a Trust 284
Kinds of Trusts 284

PART SEVEN Terms Used in Law of Real Property 293

Chapter 32 ESTATES IN REAL PROPERTY 294

Freehold Estates 295
Leasehold Estates 298

Chapter 33 MULTIPLE OWNERSHIP OF REAL PROPERTY 302

Co-Ownership of Real Property 303
Multi-Ownership of Real Property 306

Chapter 34 ACQUIRING TITLE TO REAL PROPERTY 311

Original Grant 312
Deed 312
Inheritance 312
Sale on Execution 313
Mortgagee’s Foreclosure Sale 313
Tax Authority Title 314
Adverse Possession 314
Slow Action of Water 315

Chapter 35 DEEDS 319

Sealed Instrument 320
Requirements of a Modern Deed 321
Describing Real Property 321
Types of Deeds 322

Chapter 36 MORTGAGES 327

Historical Background 328
Prevailing Mortgage Theories 328
Types of Mortgages 329
Mortgage Foreclosure 330
Mortgage Redemption 330
Transfer of Mortgaged Premises 331
Junior Mortgages 332
Mortgage Discharge 332

Chapter 37 LANDLORD AND TENANT 336

Leasehold Estates 337
License 338
The Lease 338
Tenants’ Rights 339
Eviction 339
Tort Liability 340
x Contents

PART EIGHT Terms Used in Family Law 345

Chapter 38 MARRIAGE, DIVORCE, AND DISSOLUTION OF MARRIAGE 346

Prenuptial Agreements 347
Marriage Formalities 348
Same-Sex Marriage and Civil Unions 349
Annulment of Marriage 350
Separation of Spouses 351
Divorce or Dissolution of Marriage 351

Chapter 39 DIVORCE PROCEDURE 357

Domicile and Residence 358
Foreign Divorce 359
Defenses to Divorce Actions 360
Alimony and Property Distribution 360
Support and Custody of Children 361

PART NINE Terms Used in Business Organizations and Bankruptcy 367

Chapter 40 BUSINESS ORGANIZATIONS 368

Sole Proprietorship 369
Partnerships 370
Corporations 372
Limited Liability Company 374
Joint Venture 374
Franchise 374

Chapter 41 THE LAW OF BANKRUPTCY 380

Goals of the Bankruptcy Code 381
Types of Bankruptcy Proceedings 381

Glossary of Legal Terms 391

Glossary of Latin Terms and Phrases 422
Index 424
 PREFACE

Legal Terminology, Seventh Edition has been revised to improve accuracy and currency. This
text is designed to develop your understanding of legal terms in concert with their usage in the
legal field. Emphasis is placed on learning terms in context through the study of law itself and
on using legal terminology in many different ways, rather than relying on rote memorization of
terms. The short easy-to-understand chapters are written in a lively manner to hold your attention
and engage your interest in the law.

NEW TO THIS EDITION

• Major revisions and updates to the primary legal authority or legal doctrines presented in
every chapter.
• “Learning Objectives” are now included and begin each chapter.
• More legal citations added to existing statutes and case law throughout the text.
• New chapter on the Uniform Commercial Code.
• New “Terms in Action” added throughout the chapters.
• New “Web Wise” features throughout the chapters.
• New material on e-Contracts and cyber law.
• New additions to the Glossary, including over 20 new terms with definitions.
• Updated Instructor’s Materials, including a new test bank.

INSTRUCTOR SUPPLEMENTS
Instructor’s Manual with Test Bank. Includes content outlines for classroom discussion,
teaching suggestions, and answers to selected end-of-chapter questions from the text. This also
contains a Word document version of the test bank.
TestGen. This computerized test generation system gives you maximum flexibility in creating
and administering tests on paper, electronically, or online. It provides state-of-the-art features
for viewing and editing test bank questions, dragging a selected question into a test you are
creating, and printing sleek, formatted tests in a variety of layouts. Select test items from test
banks included with TestGen for quick test creation, or write your own questions from scratch.
TestGen’s random generator provides the option to display different text or calculated number
values each time questions are used.
PowerPoint Presentations. Our presentations are clear and straightforward. Photos, illustrations,
charts, and tables from the book are included in the presentations when applicable.
To access supplementary materials online, instructors need to request an instructor access code.
Go to www.pearsonhighered.com/irc, where you can register for an instructor access code. Within
48 hours after registering, you will receive a confirming e-mail, including an instructor access code.
Once you have received your code, go to the site and log on for full instructions on downloading the
materials you wish to use.

ALTERNATE VERSIONS
eBooks. This text is also available in multiple eBook formats. These are an exciting new choice
for students looking to save money. As an alternative to purchasing the printed textbook, stu-
dents can purchase an electronic version of the same content. With an eTextbook, students can
search the text, make notes online, print out reading assignments that incorporate lecture notes,
and bookmark important passages for later review. For more information, visit your favorite
online eBook reseller or visit www.mypearsonstore.com.

xi
xii Preface

ACKNOWLEDGMENTS
Special thanks to the following reviewers who provided excellent technical and practical sugges-
tions for improvement and readability for the new edition:
Christy Powers, St. Petersburg College
Carol Rosborough, Houston Community College
Trinette Zarran, Miami Dade College
We would also like to express our gratitude to the reviewers of the previous edition:
Brian Craig, Globe University/Minnesota School of Business; Cathy Underwood, Pulaski
Technical College; Pam Cummings, Minnesota State Community and Technical College; Leslie
Ratliff, Griffin Technical College; Paula Witt, Houston Community College; Linda Cupick,
Daytona Beach Community College; Jody L. Cooper, Blackhawk Technical College; and
Claudine Dulaney, International Institute of the Americas.
We would also like to thank the following survey respondents who helped us to refine the
coverage of the textbook:
Joseph Kline, South Plains College
Barry Puett, State College of Florida, Manatee-Sarasota
Linda Wenn, Central Community College
Susan Balman, Butler Community College
Jerrold Fleisher, Suny Rockland Community College
Cathy Carruthers, Lewis & Clark Community College
Glenda Hanson, Renton Technical College
Teresa Harbacheck, College of Western Idaho
Gwendolyn Pope, J. F. Drake State Technical College
Sabrina Swann, Central Georgia Technical College
Diana Yohe, Bristol Community College
William Yenna, Kingsborough Community College
Jody Cooper, Blackhawk Technical College
Joyce Zweedyk, Kalamazoo Valley Community College
Bob Loomis, Spokane Community College
Larena Grieshaber, Independence Community College
Karin Kelley, Bates Technical College
Sharolyn Sayers, Milwaukee Area Technical College
Kim Phifer-Starks, Mississippi Gulf Coast Community College
Thea Hosselrode, Allegany College of Maryland
Georganne Copeland, Centralia College
Marilyn Wudarcki, North Idaho College
Betty Lambert, Des Moines Area Community College
Sonya Rambo, West Kentucky Community & Technical College
Toni Clough, Umpqua Community College
Gloria Bailey, Atlantic Technical Center
Crystal Sullivan, Umpqua Community College
Elizabeth Snodgrass, Mountain Empire Community College
Crystal Price, Alvin Community College
 Preface xiii

Douglas Rogers, Jefferson State Community College

Carolyn Sharpe, Cleveland Community College
Mary Balmages, Cerritos College
Amy Wilson, Zane State College
Lori Asante, Cincinnati State Technical and Community College
Maxine Boggy, Atlantic Technical Center
Marissa Wawrzyniak, Brevard Community College
Our hope is that this book will provide to instructors a clear roadmap for navigating the
courses for which this book is used, and to the students a treasure chest of terms and principles
that will assist you throughout your legal courses and into your careers.
 ABOUT THE AUTHORS

Kent D. Kauffman is Associate Professor of Business Law at Purdue University Fort Wayne
(formerly called Indiana University Purdue University-Fort Wayne), in Fort Wayne, Indiana.
He is licensed to practice law in Indiana and is certified as a mediator in Indiana. He is a summa
cum laude graduate of Temple University and a graduate of The Dickinson School of Law of the
Pennsylvania State University. For 15 years, Professor Kauffman was the Chair of the Paralegal
Studies Department at Ivy Tech Community College in Fort Wayne, Indiana.
Professor Kauffman is the author of various academic journal articles and other books,
including Legal Ethics, in its third edition and published by Delmar Cengage Learning. He is a
multiple recipient of Who’s Who in American Education® and Who’s Who in American Law®.
Professor Kauffman is the recipient of various teaching awards, including being inducted into
the Indiana University Faculty Academy on Excellence in Teaching (FACET), as well as being
awarded on multiple occasions as Professor of the Year by Delta Sigma Pi, his university’s co-
educational business fraternity.
Gordon W. Brown, is a Professor Emeritus of North Shore Community College, Danvers,
Massachusetts, where he taught for 30 years. He also taught for two years at Pepperell
High School, Pepperell, Massachusetts, and for six years at Endicott College in Beverly,
Massachusetts.
In addition to writing the first five editions of this book, Professor Brown is the author
of the first three editions of Administration of Wills, Trusts, and Estates published by Delmar
Cengage Learning. Over a 30-year period, he co-authored eight editions of Understanding
Business & Personal Law and seven editions of Business Law with UCC Applications, published
by McGraw-Hill.
In 1998, Professor Brown was awarded the Outstanding Educator Award from his alma
mater, Salem State University. He received his law degree from Suffolk University and practiced
law part time while teaching full time. He is a retired member of the Massachusetts and federal
Bars.

xiv
 PART ONE
Terms Used in Practice and Procedure
1
CHAPTER 1
Court Systems and Jurisdiction
CHAPTER 2
Criminal Trial Procedure
CHAPTER 3
Civil Trial Procedure
CHAPTER 4
Defensive Pleadings in
Civil Trials
CHAPTER 5
Methods of Discovery
CHAPTER 6
Pretrial Hearing and Jury Trial

Inga Ivanova/Shutterstock
CHAPTER 7
Steps in a Trial

W CHAPTER 8
hether you work as a court reporter, an office technician, a parale-
gal, or a business executive, knowledge of the procedures involved
in taking a case to court is important. Indeed, people outside of the
Legal Ethics
legal field also have an interest in court procedure, stemming either from their
own personal experiences or from reading about trials and watching them in
movies and on television. After differentiating between the federal and state
court systems, Chapter 1 examines the subject of selecting the court, including
the matters of jurisdiction and venue. This chapter also explores alternative
dispute resolution mechanisms available for those who wish to settle disputes
outside the traditional court system of litigation. Chapter 2 explains criminal
trial procedure, beginning with the arrest, preliminary hearing, indictment, and
arraignment, followed by sentencing and defendants’ rights. Chapter 3 dis-
cusses civil trial procedure including court selection, pleadings, service of pro-
cess, and attachments. Chapter 4 explains defensive pleadings including the
demurrer, five commonly used motions, the defendant’s answer, the counter-
claim, the cross-claim, and the cross-complaint. Methods of discovery, includ-
ing interrogatories, and depositions, are examined in Chapter 5. The process
of impaneling the jury, including the examination and challenging of jurors,
is explained in Chapter 6, and the steps in a trial are outlined in Chapter 7.
Finally, Chapter 8 discusses how legal ethics rules affect the professional
behavior of lawyers and their nonlawyer employees. 1
 C H A P T E R

1
1
Court Systems and
Jurisdiction

ANTE INTERROGATORY
(literally means “the before question” and is a sneak preview
of the chapter)
The power of a court to review a lower court’s decision is called
(A) original jurisdiction, (B) in rem jurisdiction, (C) exclusive
jurisdiction, or (D) appellate jurisdiction.

LEARNING OBJECTIVES LO 5: Contrast an in personam action from

an in rem action
LO 1: Describe the federal court system
LO 6: Explain how jurisdiction is different
LO 2: Explain when the U.S. supreme court from venue
takes cases for review
LO 7: Compare and contrast negotiation,
LO 3: Distinguish the three types of courts in mediation and arbitration
the state court system
LO 4: Define jurisdiction and categorize the
types of jurisdiction

KEY TERMS code

admiralty compulsory arbitration
alternative dispute resolution (ADR) conciliation
appeal conciliator
appellate courts concurrent jurisdiction
appellate jurisdiction court
arbitration courts of appeal
arbitrator diversity of citizenship
arbitrator’s award exclusive jurisdiction
binding arbitration federal district courts
caucus federal question
cert. den. forum non conveniens
change of venue in personam action
circuits in personam jurisdiction
2
 Chapter 1 • Court Systems and Jurisdiction 3

in rem action nonbinding arbitration

jurisdiction ordinance
justice original jurisdiction
local action plenary jurisdiction

1
long-arm statutes quasi in rem action
mandatory arbitration res
maritime statute
mediation transitory action
mediator venue
mini-trial writ of certiorari
negotiation

WEBSITES FOR PRONUNCIATION HELP

http://dictionary.cambridge.org/us/pronunciation/english/audio
https://www.howtopronounce.com

A
court is a body of government organized to administer justice. There are two court
systems in the United States—the federal court system and the state court systems.

FEDERAL COURTS
The federal court system, established by Article III of the U.S. Constitution, includes the U.S.
district courts, the U.S. courts of appeals, and the U.S. Supreme Court. Those courts hear cases
that raise a federal question—a matter that involves the U.S. Constitution, acts of Congress, or
treason. Federal courts also decide cases that involve diversity of citizenship—a term used to
describe cases between persons from different states, between citizens of the United States and
a foreign government, and between citizens of the United States and citizens of a foreign coun-
try. Diversity cases must exceed the sum of $75,000. In addition, federal courts hear bankruptcy
cases, patent and copyright cases, and admiralty or maritime cases—those pertaining to the sea.

U.S. District Courts

There are 94 U.S. district courts in the federal court system and they are the trial courts. Each
state and federal territory (Puerto Rico, for example) and the District of Columbia have at least
one U.S. district court within its boundary. These courts are also called federal district courts,
and there are both civil and criminal district courts.

Sources of Law

There are five principal sources of law in the United States:

1. Federal and state constitutions
2. English common law
3. Federal and state statutes (and ordinances, which are laws passed by local or municipal
legislative bodies)
4. Court decisions (when made by appellate courts, they are also called “common law,” but
not “English common law”)
5. Administrative regulations
The federal government and many state governments consolidate, or otherwise codify, their stat-
utes, administrative regulations, and other laws into a systematic collection called a code. The

(Continued)
 4 Part 1 • Terms Used in Practice and Procedure

United States Code (the U.S.C.) and the California Civil Code are examples. Legislative codes, like
the U.S.C., are similar in structure to administrative codes, like the Code of Federal Regulations
(the C.F.R.), but their sources are different. Legislative codes are created by legislatures, while ad-
ministrative codes are created by administrative agencies, sometimes called bureaucracies.

1 U.S. Courts of Appeals

The United States is divided into 13 judicial circuits. Eleven of the federal circuits are regional and
numbered. There is also a D.C. Circuit for the District of Columbia, and a circuit for specialized fed-
eral cases, like patent cases, called the Federal Circuit. With exception for the Federal Circuit, which
only has a court of appeals and whose jurisdiction is based on subject matter rather than geography,
each circuit has at least one U.S. district court and its corresponding circuit court of appeals. U.S.
circuit courts of appeals decide cases that have been appealed from their respective federal district
courts. A group of three judges decides most cases that are appealed to a Federal Circuit of ap-
peals court. For example, the 7th Circuit hears federal cases from a total of seven districts in Illinois,
Indiana and Wisconsin, and the 7th Circuit Court of Appeals is located in Chicago, IL.

Word Wise
Different Meanings for “Court”

The court officer announced, “The court is now in session!” Used in this way, the term “court” means a
body, including judge and jury, organized to administer justice. Lawyers are officers of the court.
“May it please the court” is a sentence often used by lawyers when addressing a judge. The
term “court” as used here means “judge.”
“I’ll see you in court,” the attorney said to her fellow attorney. Here, the term “court”
probably refers to the courthouse building.

U.S. Supreme Court

The U.S. Supreme Court is the highest court in the land. It hears appeals from both the U.S.
courts of appeals and also from the highest state courts when those cases involve federal law
or issues of national significance. Coming from the Latin word supremus (the last), the term
supreme means “superior to all other things.”
In the U.S. Supreme Court, appeals are heard when four out of the nine justices (the title
given to the highest appellate court judges) believe that the case is important enough to be heard.
When it agrees to hear a case on appeal, the U.S. Supreme Court issues a writ of certiorari, an
order from a higher court to a lower court to deliver its records to the higher court for review.
When the Court decides not to hear an appeal, as it does with most cases, the Court denies issu-
ing the writ of certiorari by writing the abbreviation “cert. den.” on the court record. Generally,
the Supreme Court grants certiorari to 70–80 cases each year from over 7,000 petitions.

TERMS IN ACTION
The U.S. Supreme Court has nine justices, who have their job for life. As of 2016, each justice
earns $249,300 per year, but the Chief Justice earns $260,700. President Washington nomi-
nated the judges for the first Supreme Court, which had six justices. Because the Constitution
doesn’t state how many justices the Supreme Court should comprise, the number is determined
by Congress. The first Congress chose six (one chief justice and five associate justices) as part
of the Judiciary Act of 1789, which also established three circuit courts and 13 district courts.
 Chapter 1 • Court Systems and Jurisdiction 5

One of the Supreme Court’s early cases, Chisholm v. Georgia, concluded in 1793 that the indi-
vidual states were within its jurisdiction and could be sued in a federal court. From 1789 until
1869, Congress increased the size of the Court to seven justices, then nine, and even ten. But in
the Judiciary Act of 1869, Congress set the number of justices at nine, where it has remained.

1
Source: judiciary.senate.gov; supremecourt.gov

STATE COURTS
Each state in the United States—and the District of Columbia—has its own court structure that
is separate from the executive and legislative branches of state government. Like federal courts,
state courts are divided into three broad categories—trial courts, intermediate appellate courts, and
supreme courts.

State Trial Courts

State trial courts have general authority to hear cases involving activity that occurred in a par-
ticular state. Called superior courts, circuit courts, or courts of common pleas, they are typically
arranged so there is one in each county. Major civil and criminal cases, both jury and non-jury,
are tried in these county courts.
In addition, somewhat lesser courts with limited jurisdiction (authority), including district,
or municipal, courts; juvenile courts; traffic courts; housing courts; and probate courts, are lo-
cated throughout each county. Each county also has special courts that handle such matters as
adoption, divorce, and the settlement of estates.

State Intermediate Appellate Courts

Following a court’s decision, either party may file an appeal—that is, a request to a higher court
to review the decision of the lower court that tried the case. Courts that review the decisions of
lower courts are called courts of appeal or appellate courts. Many states have intermediate
appellate courts where appeals must be taken and heard by a three-judge panel before deemed
being eligible to go to the state’s supreme court.

State Supreme Court

Each state has a court of last resort—a state supreme court. Parties aggrieved by lower state court
decisions may appeal to their state’s supreme court, whose decision is usually final. Petitions for
certiorari from state supreme court decisions may be made to the U.S. Supreme Court but, as
earlier stated, those petitions for an appeal are granted only when a federal or U.S. constitutional
question is raised. State supreme courts also regulate the practice of law and oversee the admin-
istration of the justice system in their states.

JURISDICTION AND VENUE

Jurisdiction is the power or authority that a court has to hear a particular case. Such power is
given to the court either by the federal or a state constitution or by a federal or state statute. If, by
chance, a court without jurisdiction should hear a particular case and make a decision, the party
who lost the case would certainly win an appeal on the grounds the decision is void because of
lack of jurisdiction.
Some courts have original jurisdiction over certain cases, meaning that they have the
power to hear the case originally—when it first goes to court. Other courts have appellate
jurisdiction, which means that they have the power to hear a case when it is appealed—that
is, when an aggrieved party is petitioning an appellate court to review the decision of a lower
 6 Part 1 • Terms Used in Practice and Procedure

court. When only one court has the power to hear a particular case, to the exclusion of all other
courts, the court is said to have exclusive jurisdiction. When two or more courts have the
power to hear a case, they have concurrent jurisdiction. A court with concurrent jurisdiction
has the right, under a doctrine called forum non conveniens, to refuse to hear a case if it be-
lieves that justice would be better served if the trial were held in a different court. Some courts

1
have exclusive original jurisdiction or exclusive appellate jurisdiction over particular cases.
Similarly, some courts have concurrent original jurisdiction or concurrent appellate jurisdiction
over certain cases.

Word Wise
To Speak

“Dic,” “dict,” and “dit,” whether used as prefixes or suffixes, mean “to say” or “to speak,” as
in these words:
verdict
jurisdiction
edict
indictment
dictation
dictator
contradict

When considering the question of jurisdiction, one of the first points that must be deter-
mined is whether the case is an in rem, quasi in rem, or in personam action.

In Rem Action
An in rem action is a lawsuit that is directed against property rather than against a particular per-
son. The action usually concerns title to real property and, if so, is called a local action. It seeks to
settle some questions about the property, and the court’s decision affects everyone in the world, not
merely the parties in the case. For a court to have jurisdiction over an action in rem, the property
(called the res) must be located in the state (and, usually, in the county) where the court sits. In
addition, some kind of notice must be given to people who may have an interest in the proceeding.

Quasi in Rem Action

If a defendant owns real property in one state and lives in another, the court where the real prop-
erty is located has jurisdiction over the property only, but not over the person. If suit is brought
in that court and the out-of-state defendant does not appear, the plaintiff’s recovery will be lim-
ited to an amount up to the value of the property in question located in that state. Such a lawsuit
is called a quasi in rem action. In such a case, the court has jurisdiction over the defendant’s
property, but not over the defendant’s person; therefore, the most the defendant can lose is the
out-of-state real property. Usually, when this type of jurisdiction prevails, the dispute the court is
asked to settle has nothing to do with title to the property.

In Personam Action
In an in personam action (personal action), the plaintiff must select a court that has jurisdiction
over not only the subject matter, but also over the parties involved in the case. In personam
jurisdiction (personal jurisdiction) means jurisdiction over the person. A court automatically
has personal jurisdiction over the plaintiff because the plaintiff has submitted to the court’s juris-
diction by filing a complaint in that court. In contrast, a court has jurisdiction over a defendant
only if the defendant lives in the jurisdiction, has a business in the jurisdiction, or engages in
 Chapter 1 • Court Systems and Jurisdiction 7

legally significant behaviors, such as driving in the jurisdiction. An exception is that state courts
will obtain personam jurisdiction over anyone who is served by process while inside the state’s
boundaries. Service of process is explained in Chapter 2.
Not every would-be defendant resides in the jurisdiction where a plaintiff would file suit.
So, how would a court have personal jurisdiction over the defendant? Some so-called long-arm

1
statutes allow one state court to reach out (with its long arm) to obtain personal jurisdiction over
a person in another state if that person does much business in the state where the court is located,
or performs other significant actions in that state. For example, a person from Indiana driving
a vehicle in North Carolina can be sued in North Carolina over allegations related to his or her
driving in that state. The term plenary jurisdiction refers to the situation in which a court has
complete jurisdiction over the plaintiff, the defendant, and the subject matter of a lawsuit.
An action that does not concern land is called a transitory action and may be brought in
more than one place as long as the court in which it is heard has proper jurisdiction.

Venue
The place where the trial is held is called the venue. Each state has established rules of venue for
the purpose of providing convenient places for trials. Such rules state exactly where particular
actions may be brought. If the plaintiff’s attorney begins an action in a court of improper venue,
the defendant’s attorney may have the case transferred or dismissed by filing a motion for that
purpose or by raising that issue in the defendant’s answer (a document discussed in Chapter 18).
If the defendant’s attorney does not raise the question of improper venue, the court may hear the
case as long as it has jurisdiction. The difference between venue and jurisdiction is that juris-
diction relates to the power of the court to hear a case, whereas venue relates to the geographic
location where the action should be tried.
Sometimes, for the sake of justice, one of the parties will ask the court to change the place of
the trial. The court, in some cases, has the power to order a change of venue. A change of venue is
the removal of a suit begun in one county or district and the replacement of it to another county or
district for trial. Pretrial publicity is often a reason for a defendant to seek a change in venue. In those
instances, the defendant will argue in a pretrial motion that, because of negative media coverage, the
defendant will be unable to be tried by an impartial jury unless the trial is moved elsewhere.

TERMS IN ACTION
Near the finish line of the Boston Marathon on April 15, 2013, two bombs made out of pres-
sure cookers exploded 12 seconds apart, killing three and injuring over 250 others. A few
days later, the FBI announced that two Chechen brothers, Dzhokhar and Tamerian Tsarnov,
were the primary suspects. After killing an MIT police officer and carjacking an SUV, the
brothers eluded police until Dzhokhar was captured on April 19. However, before Dshokhar
was captured, the brothers killed a Boston police officer in a shootout that included Tamerian
dying when Dzhokhar ran him over in the stolen SUV while fleeing. Upon Dzhokhar’s sub-
sequent capture, some U.S. Senators thought that he should be treated as an enemy combatant
for his terroristic acts, rather than a criminal, but eventually 30 criminal charges were brought
against him in the U.S. District Court for the District of Massachusetts. Tsarnov’s public
defenders sought a change of venue for the upcoming trial, arguing he couldn’t receive a
fair trial in Boston, in light of the nature of the charges and the accompanying overwhelming
publicity. The prosecutors responded that the publicity, which included a cover on “Rolling
Stone” magazine and various articles on Tsarnov’s normally American upbringing, had the
effect of humanizing, rather than demonizing him. The district judge refused to grant the
change of venue and the trial took place in Boston in the spring of 2015. Tsarnov was con-
victed of all 30 charges on April 8, 2015 and sentenced to death on June 24.

Sources: bostonglobe.com, latimes.com, politico.com, weeklystandard.com

 8 Part 1 • Terms Used in Practice and Procedure

ALTERNATIVE DISPUTE RESOLUTION

In civil cases, rather than take their disputes to court, some people prefer to use quicker,
less complicated, and less expensive methods to resolve disputes. The distinct and alternative
processes for settling legal disputes by means other than litigation are known collectively as

1
alternative dispute resolution (ADR). The various forms of alternative dispute resolution
include negotiation, mediation, arbitration, and mini-trials.

Negotiation
Negotiation is a two-party process by which each side, without the help of a neutral third party,
attempts to conclude its dispute by bargaining with the other until one side agrees to the other
side’s offer of settlement. One doesn’t have to be represented by an attorney in a negotiation; but,
often those involved in legal disputes being negotiated do have legal representation. Negotiated
settlements are evidenced by a written agreement (a contract), which frequently requires the
terms of the negotiated settlement to remain private.

Mediation
Mediation sometimes called conciliation is an informal process in which a neutral third person,
called a mediator (or conciliator) listens to both sides and makes suggestions for reaching a
solution. The mediator tries to persuade the parties to compromise and settle their differences.
Often, the mediation takes place in stages; both sides meet together with the mediator and then
break into private sessions called caucuses. In a caucus, the mediator uses his or her listening
skills and the ability to ask probing questions in an attempt to learn what the interests are behind
each side’s demands. From that point on, the mediator seeks small gains from each side and
works to try to bring the disputing parties together so that a mutually acceptable agreement (the
settlement) can be reached. Although the mediator is not empowered to make the parties settle,
the mediator has authority over the mediation process.

Arbitration
In contrast, arbitration is a method of settling disputes in which a neutral third party, called
an arbitrator makes a decision after hearing the arguments on both sides. Arbitration takes
place when parties contractually agree to resolve their dispute according to a predeter-
mined arbitration process. Although arbitration is quicker and cheaper than a trial, parties
can still agree to engage in a limited form of discovery and gather evidence in preparation
for the arbitration hearing. At the hearing, documents can be submitted to the arbitrator or
arbitration panel and witnesses can be called to testify. If the parties agree in advance to
binding arbitration, the decision of the arbitrator or arbitration panel will be final and must
be followed. The arbitrator’s decision must be in writing and is commonly known as the
arbitrator’s award, regardless of which side the arbitrator rules in favor of. One of the seri-
ous consequences of binding arbitration is that the right to appeal a binding arbitration deci-
sion is nearly impossible to secure.
If, instead, the parties agree to nonbinding arbitration the arbitrator’s decision is simply
a recommendation and need not be complied with. Arbitration that is required by agreement or
by law is called compulsory or mandatory arbitration.

Mini-trial
An increasingly popular method of settling disputes is an informal trial, sometimes referred to as
a mini-trial run by a private organization established for the purpose of settling disputes out of
court. Retired judges and lawyers are often used to hear the disputes, and the parties agree to be
bound by the decision.

Reviewing What You Learned
After studying the chapter, write the answers to each of the following questions:
1. What types of cases are heard by federal courts?
_____________________________________
_____________________________________
_____________________________________
_____________________________________
2. Under what circumstances may an appeal be made from a state
supreme court to the U.S. Supreme Court? __________
_____________________________________
_____________________________________
_____________________________________
3. What types of cases do U.S. courts of appeals decide?
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
4. For a court to have jurisdiction over an in rem action, where
must the property be located?
_____________________________________
_____________________________________
_____________________________________
_____________________________________
5. If a defendant owns real property in one state and lives in an-
other, which court has jurisdiction in an in rem action?
_____________________________________
_____________________________________
_____________________________________
Chapter 1 • Court Systems and Jurisdiction 9
6. In a situation such as that described in question 5, if suit is
1
brought against the defendant in the state where the prop-
erty is located and the out-of-state defendant does not ap-
pear, to what will the plaintiff’s recovery be limited?
_____________________________________
_____________________________________
_____________________________________
7. To bring a lawsuit against a person and hold that person per-
sonally liable, what kind of action must be brought?
_____________________________________
_____________________________________
_____________________________________
8. If the plaintiff’s attorney begins an action in a court of im-
proper venue, what may the defendant’s attorney do?
_____________________________________
_____________________________________
_____________________________________
9. What is the difference between jurisdiction and venue?
_____________________________________
_____________________________________
_____________________________________
10. What is the difference between mediation and arbitration?
_____________________________________
_____________________________________
_____________________________________
11. Explain what negotiation is and how it is settled.
_____________________________________
_____________________________________
_____________________________________
 10 Part 1 • Terms Used in Practice and Procedure

12. How is mediation done and what is a caucus? 13. Explain what binding arbitration is.

_____________________________________ _____________________________________
_____________________________________ _____________________________________

1 _____________________________________ _____________________________________

Understanding Legal Concepts

Indicate whether each statement is true or false. Then, change the italicized word or phrase of each false statement to make it true.

ANSWERS ____ 6. An action in rem is a lawsuit that is directed against a

particular person.
____ 1. Cases heard by the U.S. courts of appeals are decided ____ 7. For a court to have jurisdiction over an in rem action,
by three judges. the property must be located in the state (and, usually,
____ 2. The U.S. Supreme Court hears appeals when five out in the county) where the court lies.
of the nine justices believe that the case is important ____ 8. If a defendant owns real property in one state and lives
enough to be heard. in another, the court with jurisdiction where the real
____ 3. If, by chance, a court should hear a particular case and property is located has jurisdiction over the person and
make a decision without having jurisdiction, the deci- not the property.
sion would be meaningless. ____ 9. When parties negotiate, there is no neutral third party
____ 4. Some courts have exclusive original jurisdiction or ex- involved.
clusive appellate jurisdiction over particular cases. ____ 10. When parties agree in advance to binding arbitration,
____ 5. Courts never have concurrent original jurisdiction over the decision of the arbitrator must be followed.
cases.

Checking Terminology (Part A)

From the list of legal terms that follows, select the one that matches each definition.
ANSWERS
a. Admiralty ____ 1. The power of two or more courts to hear a particular case.
b. appellate courts ____ 2. The power to hear a case when it first goes to court.
c. appellate jurisdiction ____ 3. A lawsuit that is directed against property rather than against a particular person.
d. arbitrator’s award ____ 4. The right of a court to refuse to hear a case if it believes that justice would be better served
e. caucus if the trial were held in a different court.
f. cert. den. ____ 5. A lawsuit that can be brought in only one place.
g. circuits ____ 6. Courts that hear most federal cases when they originally go to court, before there is
h. concurrent jurisdiction an appeal.
i. court ____ 7. A lawsuit in which the court has jurisdiction over the defendant’s property, but not over
j. courts of appeal the defendant’s person.
k. diversity of citizenship ____ 8. A lawsuit that may be brought in more than one place as long as the court in which it
l. exclusive jurisdiction is heard has proper jurisdiction.
m. federal question ____ 9. A matter that involves the U.S. Constitution, acts of Congress, or treason.
n. federal district courts ____ 10. Pertaining to the sea. (Select two answers.)
o. formus non conveniens ____ 11. Name given to the division of U.S. district courts.
p. in personam action ____ 12. Title given to an appellate court judge.
q. in rem action ____ 13. An order from a higher court to a lower court to deliver its records to the higher court
r. justice for review.
s. local action ____ 14. Possible basis of federal jurisdiction for parties who live in different states.
t. maritime ____ 15. The power of one court only to hear a particular case, to the exclusion of all other courts.
u. negotiation ____ 16. A lawsuit in which the court has jurisdiction over the person.
v. original jurisdiction ____ 17. The power to hear a case when it is appealed.
w. plenary jurisdiction ____ 18. Courts that review the decision of lower courts. (Select two answers.)
x. quasi in rem action ____ 19. Final, written decision in binding arbitration.
y. transitory action ____ 20. Private session with a mediator.
z. writ of certiorari ____ 21. Complete jurisdiction.
Another random document with
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the involucre, consisting of a three-lobed ovary with three styles, each style being
two-cleft. Pod.—On a slender stalk, smooth.
In this plant the showy white appendages of the cup-shaped
clustered involucres are usually taken for the petals of the flower;
only the botanist suspecting that the minute organs within these
involucres really form a cluster of separate flowers of different sexes.
While the most northerly range in the Eastern States of this spurge is
usually considered to be New York, the botany states that it has been
recently naturalized in Massachusetts. It blossoms from July till
October.

Partridge Vine.
Mitchella repens. Madder Family.

Stems.—Smooth and trailing. Leaves.—Rounded, evergreen, veined with

white. Flowers.—White, fragrant, in pairs. Calyx.—Four-toothed. Corolla.—
Funnel-form, with four spreading lobes, bearded within. Stamens.—Four. Pistil.—
One, its ovary united with that of its sister flower, its four stigmas linear.
At all times of the year this little plant faithfully fulfils its
mission of adorning that small portion of the earth to which it finds
itself rooted. But only the early summer finds the partridge vine
exhaling its delicious fragrance from the delicate sister-blossoms
which are its glory. Among the waxy flowers will be found as many of
the bright red berries of the previous year as have been left
unmolested by the hungry winter birds. This plant is found not only
in the moist woods of North America, but also in the forests of
Mexico and Japan. It is a near relative of the dainty bluets or Quaker
ladies, and has the same peculiarity of dimorphous flowers (p. 232).
 PLATE XXIII

PARTRIDGE VINE.—M. repens.

Green Orchis.
Habenaria virescens.

Ragged Fringed Orchis.

Habenaria lacera. Orchis Family (p. 17).

Leaves.—Oblong or lance-shaped. Flowers.—Greenish or yellowish-white,

growing in a spike.
These two orchids are found in wet boggy places during the
earlier summer, the green antedating the ragged fringed orchis by a
week or more. The lip of the ragged fringed is three-parted, the
divisions being deeply fringed, giving what is called in Sweet’s
“British Flower-Garden” an “elegantly jagged appearance.” The lip of
the green orchis is furnished with a tooth on each side and a strong
protuberance in the middle. So far as superficial beauty and
conspicuousness are concerned these flowers do scant justice to the
brilliant family to which they belong, and equally excite the scornful
exclamation, “You call that an orchid!” when brought home for
analysis or preservation.

Button-bush.
Cephalanthus occidentalis. Madder Family.

A shrub three to eight feet high. Leaves.—Opposite or whorled in threes,

somewhat oblong and pointed. Flowers.—Small, white, closely crowded in round
button-like heads. Calyx.—Four-toothed. Corolla.—Four-toothed. Stamens.—Four.
Pistil.—One, with a thread-like protruding style and blunt stigma.
This pretty shrub borders the streams and swamps throughout
the country. Its button-like flower-clusters appear in midsummer. It
belongs to the family of which the delicate bluet and fragrant
partridge vine are also members. Its flowers have a jasmine-like
fragrance.

Mild Water-pepper.
Polygonum hydropiperoides. Buckwheat Family.

Stem.—One to three feet high, smooth, branching. Leaves.—Alternate,

narrowly lance-shaped or oblong. Flowers.—White or flesh-color, small, growing
in erect, slender spikes. Calyx.—Five-parted. Corolla.—None. Stamens.—Eight.
Pistil.—One, usually with three styles.
These rather inconspicuous but very common flowers are found
in moist places and shallow water.
The common knotweed, P. aviculare, which grows in such
abundance in country dooryards and waste places, has slender, often
prostrate, stems, and small greenish flowers, which are clustered in
the axils of the leaves or spiked at the termination of the stems. This
is perhaps the “hindering knotgrass” to which Shakespeare refers in
the “Midsummer Night’s Dream,” so terming it, not on account of its
knotted trailing stems, but because of the belief that it would hinder
the growth of a child. In Beaumont and Fletcher’s “Coxcomb” the
same superstition is indicated:
We want a boy
 Kept under for a year with milk and knotgrass.

It is said that many birds are nourished by the seeds of this plant.

Climbing False Buckwheat.

Polygonum scandens. Buckwheat Family.

Stem.—Smooth, twining, and climbing over bushes, eight to twelve feet high.
Leaves.—Heart or arrow-shaped, pointed, alternate. Flowers.—Greenish or
pinkish, in racemes. Calyx.—Five-parted, with colored margins. Corolla.—None.
Stamens.—Usually eight. Pistil.—One, with three stigmas. Seed-vessel.—Green,
three-angled, winged, conspicuous in autumn.
In early summer this plant, which clambers so perseveringly
over the moist thickets which line our country lanes, is comparatively
inconspicuous. The racemes of small greenish flowers are not
calculated to attract one’s attention, and it is late summer or autumn
before the thick clusters of greenish fruit composed of the winged
seed-vessels arrest one’s notice. At this time the vine is very beautiful
and striking, and one wonders that it could have escaped detection in
the earlier year.

——— ———
Dalibarda repens. Rose Family.

Scape.—Low. Leaves.—Heart-shaped, wavy-toothed. Flowers.—White, one or

two borne on each scape. Calyx.—Deeply five or six-parted, three of the divisions
larger and toothed. Corolla.—Of five petals. Stamens.—Many. Pistils.—Five to ten.
The foliage of this pretty little plant suggests the violet; while its
white blossom betrays its kinship with the wild strawberry. It may be
found from June till August in woody places, being one of those
flowers which we seek deliberately, whose charm is never decreased
by its being thrust upon us inopportunely. Who can tell how much
the attractiveness of the wild carrot, the dandelion, or butter-and-
eggs would be enhanced were they so discreet as to withdraw from
the common haunts of men into the shady exclusiveness which
causes us to prize many far less beautiful flowers?
 Starry Campion.
Silene stellata. Pink Family.

Stem.—Swollen at the joints, about three feet high. Leaves.—Whorled in fours,

oval, taper-pointed. Flowers.—White, in a large pyramidal cluster. Calyx.—
Inflated, five-toothed. Corolla.—Of five deeply fringed petals. Stamens.—Ten.
Pistil.—One, with three styles.
In late July many of our wooded banks are decorated with the
tall stems, whorled leaves, and prettily fringed flowers of the starry
campion.
Closely allied to it is the bladder campion of the fields, S.
Cucubalus, a much smaller plant, with opposite leaves, loosely
clustered white flowers, a greatly inflated calyx, and two-cleft petals.
This is an emigrant from Europe, which was first naturalized near
Boston, and has now become wild in different parts of the country,
quite overrunning some of the farm-lands which border the Hudson
River.

PLATE XXIV

Dalibarda repens.

Colic-root. Star-grass.
Aletris farinosa. Bloodwort Family.
 Leaves.—Thin, lance-shaped, in a spreading cluster from the root. Scape.—
Slender, two to three feet high. Flowers.—White, small, growing in a wand-like,
spiked raceme. Perianth.—Six-cleft at the summit, oblong-tubular. Stamens.—Six.
Pistil.—One, with style three-cleft at apex.
In summer we find these flowers in the grassy woods. The
generic title is the Greek word for “a female slave who grinds corn,”
and refers to the mealy appearance of the blossoms.

Tall Meadow Rue.

Thalictrum polygamum. Crowfoot Family.

Four to eight feet high. Leaves.—Divided into many firm, rounded leaflets.
Flowers.—White, in large clusters; some perfect, others unisexual. Calyx.—Of four
or five small petal-like sepals which usually fall off very early. Corolla.—None.
Stamens.—Numerous. Pistils.—Four to fifteen.
Where a stream trails its sluggish length through the fields of
midsummer, its way is oftentimes marked by the tall meadow rue,
the feathery, graceful flower-clusters of which erect themselves
serenely above the myriad blossoms which are making radiant the
wet meadows at this season. For here, too, we may search for the
purple flag and fringed orchis, the yellow meadow lily, the pink
swamp milkweed, each charming in its way, but none with the cool
chaste beauty of the meadow rue. The staminate flowers of this plant
are especially delicate and feathery.

White Avens.
Geum album. Rose Family.

Stem.—Slender, about two feet high. Root-leaves.—Divided into from three to

five leaflets, or entire. Stem-leaves.—Three-lobed or divided, or only toothed.
Flowers.—White. Calyx.—Deeply five-cleft, usually with five small bractlets
alternating with its lobes. Corolla.—Of five petals. Stamens.—Numerous. Pistils.—
Numerous, with hooked styles which become elongated in fruit.
The white avens is one of the less noticeable plants which border
the summer woods, blossoming from May till August. Later the
hooked seeds which grow in round burr-like heads secure wide
dispersion by attaching themselves to animals or clothing. Other
species of avens have more conspicuous golden-yellow flowers.
 PLATE XXV

TALL MEADOW RUE.—T. polygamum.

Meadow-sweet.
Spiræa salicifolia. Rose Family.

Stem.—Nearly smooth, two or three feet high. Leaves.—Alternate, somewhat

lance-shaped, toothed. Flowers.—Small, white or flesh-color, in pyramidal
clusters. Calyx.—Five-cleft. Corolla.—Of five rounded petals. Stamens.—
Numerous. Pistils.—Five to eight.
The feathery spires of the meadow-sweet soar upward from the
river banks and low meadows in late July. Unlike its pink sister, the
steeple-bush, its leaves and stems are fairly smooth. The lack of
fragrance in the flowers is disappointing, because of the hopes raised
by the plant’s common name. This is said by Dr. Prior to be a
corruption of the Anglo-Saxon mead-wort, which signifies honey-
wine herb, alluding to a fact which is mentioned in Hill’s “Herbal,”
that “the flowers mixed with mead give it the flavor of the Greek
wines.”
Although the significance of many of the plant-names seems
clear enough at first sight, such an example as this serves to show
how really obscure it often is.

White Water-lily.
Nymphæa odorata. Water-lily Family.

Leaves.—Rounded, somewhat heart-shaped, floating on the surface of the

water. Flowers.—Large, white, or sometimes pink, fragrant. Calyx.—Of four sepals
which are green without. Corolla.—Of many petals. Stamens.—Indefinite in
number. Pistil.—With a many-celled ovary whose summit is tipped with a globular
projection around which are the radiating stigmas.
This exquisite flower calls for little description. Many of us are
so fortunate as to hold in our memories golden mornings devoted to
its quest. We can hardly take the shortest railway journey in summer
without passing some shadowy pool whose greatest adornment is
this spotless and queenly blossom. The breath of the lily-pond is
brought even into the heart of our cities where dark-eyed little
Italians peddle clusters of the long-stemmed fragrant flowers about
the streets.
 PLATE XXVI

MEADOW-SWEET.—S. salicifolia.

In the water-lily may be seen an example of so-called plant-

metamorphosis. The petals appear to pass gradually into stamens, it
being difficult to decide where the petals end and the stamens begin.
But whether stamens are transformed petals, or petals transformed
stamens seems to be a mooted question. In Gray we read, “Petals
numerous, in many rows, the innermost gradually passing into
stamens,” while Mr. Grant Allen writes: “Petals are in all probability
enlarged and flattened stamens, which have been set apart for the
work of attracting insects,” and goes on to say, “Flowers can and do
exist without petals, ... but no flower can possibly exist without
stamens, which are one of the two essential reproductive organs in
the plant.” From this he argues that it is more rational to consider a
petal a transformed stamen than vice versa. To go further into the
subject here would be impossible, but a careful study of the water-lily
is likely to excite one’s curiosity in the matter.

White Vervain.
Verbena urticæfolia. Verbena Family.

Three to five feet high. Leaves.—Oval, coarsely toothed. Flowers.—Small,

white, in slender spikes, otherwise resembling Purple Vervain.
It almost excites one’s incredulity to be told that this
uninteresting looking plant, which grows rankly along the highways,
is an importation from the tropics, yet for this statement the botany
is responsible.

Round-leaved Sundew.
Drosera rotundifolia. Sundew Family.

Scape.—A few inches high. Leaves.—Rounded, abruptly narrowed into

spreading, hairy leaf-stalks; beset with reddish, gland-bearing bristles. Flowers.—
White, growing in a one-sided raceme, which so nods at its apex that the fresh-
blown blossom is always uppermost. Calyx.—Of five sepals. Corolla.—Of five
petals. Pistil.—One, with three or five styles, which are sometimes so deeply two-
parted as to be taken for twice as many.

What’s this I hear

About the new carnivora?
Can little plants
Eat bugs and ants
And gnats and flies?
A sort of retrograding:
Surely the fare
Of flowers is air,
Or sunshine sweet;
They shouldn’t eat,
Or do aught so degrading!

But by degrees we are learning to reconcile ourselves to the fact

that the more we study the plants the less we are able to attribute to
them altogether unfamiliar and ethereal habits. We find that the laws
which control their being are strangely suggestive of those which
regulate ours, and after the disappearance of the shock which attends
the shattered illusion, their charm is only increased by the new sense
of kinship.
The round-leaved sundew is found blossoming in many of our
marshes in midsummer. When the sun shines upon its leaves they
look as though covered with sparkling dewdrops, hence its common
name. These drops are a glutinous exudation, by means of which
insects visiting the plant are first captured; the reddish bristles then
close tightly about them, and it is supposed that their juices are
absorbed by the plant. At all events the rash visitor rarely escapes. In
many localities it is easy to secure any number of these little plants
and to try for one’s self the rather grewsome experiment of feeding
them with small insects. Should the tender-hearted recoil from such
reckless slaughter, they might confine their offerings on the altar of
science to mosquitoes, small spiders, and other deservedly
unpopular creatures.
D. Americana is a very similar species, with longer, narrower
leaves.
The thread-leaved sundew, D. filiformis has fine, thread-like
leaves and pink flowers, and is found in wet sand along the coast.

Pokeweed. Garget. Pigeon-berry.

Phytolacca decandra. Pokeweed Family.

Stems.—In length from six to ten feet high; purple-pink or bright red, stout.
Leaves.—Large, alternate, veiny. Flowers.—White or pinkish, the green ovaries
conspicuous, growing in racemes. Calyx.—Of five rounded or petal-like sepals,
pinkish without. Corolla.—None. Stamens.—Ten. Pistil.—One, with ten styles.
Fruit.—A dark purplish berry.
There is a vigor about this native plant which is very pleasing. In
July it is possible that we barely notice the white flowers and large
leaves; but when in September the tall purple stems rear themselves
above their neighbors in the roadside thicket, the leaves look as
though stained with wine, and the long clusters of rich dark berries
hang heavily from the branches, we cannot but admire its
independent beauty. The berries serve as food for the birds. A
tincture of them at one time acquired some reputation as a remedy
for rheumatism. In Pennsylvania they have been used with whiskey
to make a so-called “portwine.” From their dark juice arose the name
of “red-ink plant,” which is common in some places. The large roots
are poisonous, but the acrid young shoots are rendered harmless by
boiling, and are eaten like asparagus, being quite as good, I have
been told by country people.
Despite the difference in the spelling of the names, it has been
suggested that the plant was called after President Polk. This is most
improbable, as it was common throughout the country long before
his birth, and its twigs are said to have been plucked and worn by his
followers during his campaign for the Presidency.

White Fringed Orchis.

Habenaria blephariglottis. Orchis Family (p. 17).

About one foot high. Leaves.—Oblong or lance-shaped, the upper passing into
pointed bracts. Flowers.—Pure white, with a slender spur and fringed lip; growing
in an oblong spike.
 PLATE XXVII

POKEWEED.—P. decandra.

This seems to me the most exquisite of our native orchids. The

fringed lips give the snowy, delicate flowers a feathery appearance as
they gleam from the shadowy woods of midsummer, or from the
peat-bogs where they thrive best; or perhaps they spire upward from
among the dark green rushes which border some lonely mountain
lake. Like the yellow fringed orchis (Pl. LII), which they greatly
resemble in general structure, they may be sought in vain for many
seasons and then will be discovered one midsummer day lavishing
their spotless loveliness upon some unsuspected marsh which has
chanced to escape our vigilance.
 Rattlesnake-plantain.
Goodyera pubescens. Orchis Family (p. 17).

Scape.—Six to twelve inches high. Leaves.—From the root in a sort of flat

rosette; conspicuously veined with white; thickish, evergreen. Flowers.—Small,
greenish-white, crowded in a close spike.
The flowers of the rattlesnake-plantain appear in late summer
and are less conspicuous than the prettily tufted, white-veined leaves
which may be found in the rich woods throughout the year. The plant
has been reputed an infallible cure for hydrophobia and snake-bites.
It is said that the Indians had such faith in its remedial virtues that
they would allow a snake to drive its fangs into them for a small sum,
if they had these leaves on hand to apply to the wound.

Common Yarrow. Milfoil.

Achillea Millefolium. Composite Family (p. 13).

Stem.—Simple at first, often branching near the summit. Leaves.—Divided

into finely toothed segments. Flower-heads.—White, occasionally pink, clustered,
small, made up of both ray and disk-flowers.
 PLATE XXVIII

WILD CARROT.—D. carota. YARROW.

—A. millefolium.

This is one of our most frequent roadside weeds, blossoming

throughout the summer and late into the autumn. Tradition claims
that it was used by Achilles to cure the wounds of his soldiers, and
the genus is named after that mighty hero. It still forms one of the
ingredients of an ointment valued by the Scotch Highlanders. The
early English botanists called the plant “nosebleed,” “because the
leaves being put into the nose caused it to bleed;” and Gerarde writes
that “Most men say that the leaves chewed, and especially greene, are
a remedie for the toothache.” These same pungent leaves also won it
the name of “old man’s pepper,” while in Sweden its title signifies
field hop, and refers to its employment in the manufacture of beer.
Linnæus considered the beer thus brewed to be more intoxicating
than that in which hops were utilized. The old women of the Orkney
Islands hold “milfoil tea” in high repute, believing it to be gifted with
the power of dispelling melancholy. In Switzerland a good vinegar is
said to be made from the Alpine species. The plant is cultivated in
the gardens of Madeira, where so many beautiful, and in our eyes
rare, flowers grow in wild profusion.

Wild Carrot. Bird’s Nest. Queen Anne’s Lace.

Daucus carota. Parsley Family (p. 15).

Stems.—Tall and slender. Leaves.—Finely dissected. Flowers.—White, in a

compound umbel, forming a circular flat-topped cluster.
When the delicate flowers of the wild carrot are still unsoiled by
the dust from the highway, and fresh from the early summer rains,
they are very beautiful, adding much to the appearance of the
roadsides and fields along which they grow so abundantly as to strike
despair into the heart of the farmer, for this is, perhaps, the
“peskiest” of all the weeds with which he has to contend. As time
goes on the blossoms begin to have a careworn look and lose
something of the cobwebby aspect which won them the title of Queen
Anne’s lace. In late summer the flower-stalks erect themselves,
forming a concave cluster which has the appearance of a bird’s nest. I
have read that a species of bee makes use of this ready-made home,
but have never seen any indications of such an occupancy.
This is believed to be the stock from which the garden carrot was
raised. The vegetable was well known to the ancients, and we learn
from Pliny that the finest specimens were brought to Rome from
Candia. When it was first introduced into Great Britain is not known,
although the supposition is that it was brought over by the Dutch
during the reign of Elizabeth. In the writings of Parkinson we read
that the ladies wore carrot-leaves in their hair in place of feathers.
One can picture the dejected appearance of a ball-room belle at the
close of an entertainment.

Water-Hemlock. Spotted Cowbane.

Cicuta maculata. Parsley Family (p. 15).
 Stem.—Smooth, stout, from two to six feet high, streaked with purple. Leaves.
—Twice or thrice-compound, leaflets coarsely toothed. Flowers.—White, in
compound umbels, the little umbels composed of numerous flowers.
This plant is often confused with the wild carrot, the sweet
Cicely, and other white-flowered members of the Parsley family; but
it can usually be identified by its purple-streaked stem. The umbels
of the water-hemlock are also more loosely clustered than those of
the carrot, and their stalks are much more unequal. It is commonly
found in marshy ground, blossoming in midsummer. Its popular
names refer to its poisonous properties, its root being said to contain
the most dangerous vegetable-poison native to our country and to
have been frequently confounded with that of the edible sweet Cicely
with fatal results.

Mock Bishop-weed.
Discopleura capillacea. Parsley Family (p. 15).

One or two feet high, occasionally much taller. Stems.—Branching. Leaves.—

Dissected into fine, thread-like divisions. Flowers.—White, very small, growing in
compound umbels with thread-like bracts.
This plant blossoms all summer in wet meadows, both inland
and along the coast; but it is especially common in the salt marshes
near New York City. It probably owes its English name to the fancied
resemblance between the bracted flower-clusters and a bishop’s cap.
Its effect is feathery and delicate.

Sweet Cicely.
Osmorrhiza longistylis. Parsley Family (p. 15).

One to three feet high. Root.—Thick, aromatic, edible. Leaves.—Twice or

thrice-compound. Flowers.—White, growing in a few-rayed compound umbel.
The roots of the sweet Cicely are prized by country children for
their pleasant flavor. Great care should be taken not to confound this
plant with the water-hemlock, which is very poisonous, and which it
greatly resembles, although flowering earlier in the year. The generic
name is from two Greek words which signify scent and root.
 Water-parsnip.
Sium cicutæfolium. Parsley Family (p. 15).

Two to six feet high. Stem.—Stout. Leaves.—Divided into from three to eight
pairs of sharply toothed leaflets. Flowers.—White, in compound umbels.
This plant is found growing in water or wet places throughout
North America.

Arrow-head.
Sagittaria variabilis. Water-plantain Family.

Scape.—A few inches to several feet high. Leaves.—Arrow-shaped. Flowers.—

White, unisexual, in whorls of three on the leafless scape. Calyx.—Of three sepals.
Corolla.—Of three white, rounded petals. Stamens and Pistils.—Indefinite in
number, occurring in different flowers, the lower whorls of flowers usually being
pistillate, the upper staminate.
Among our water-flowers none are more delicately lovely than
those of the arrow-head. Fortunately the ugly and inconspicuous
female flowers grow on the lower whorls, while the male ones, with
their snowy petals and golden centres, are arranged about the upper
part of the scape, where the eye first falls. It is a pleasure to chance
upon a slow stream whose margins are bordered with these fragile
blossoms and bright, arrow-shaped leaves.

Water-plantain.
Alisma Plantago. Water-plantain Family.

Scape.—One to three feet high, bearing the flowers in whorled, panicled

branches. Leaves.—From the root, oblong, lance-shaped or linear, mostly rounded
or heart-shaped at base. Flowers.—White or pale pink, small, in large, loose
clusters which branch from the scape. Calyx.—Of three sepals. Corolla.—Of three
petals. Stamens.—Usually six. Pistils.—Many, on a flattened receptacle.
The water-plantain is nearly related to the arrow-head, and is
often found blossoming with it in marshy places or shallow water.
 PLATE XXIX

ARROW-HEAD.—S. variabilis.

Ground Cherry.
Physalis Virginiana. Nightshade Family.

A strong-scented, low, much branched and spreading herb. Leaves.—

Somewhat oblong or heart-shaped, wavy-toothed. Flowers.—Greenish or
yellowish-white, solitary on nodding flower-stalks. Calyx.—Five-cleft; enlarging
and much inflated in fruit, loosely enclosing the berry. Corolla.—Between wheel-
shaped and funnel-form. Stamens.—Five, erect, with yellow anthers. Pistil.—One.
Fruit.—A green or yellow edible berry which is loosely enveloped in the much-
inflated calyx.
We find the ground cherry in light sandy soil, and are more apt
to notice the loosely enveloped berry of the late year than the rather
inconspicuous flowers which appear in summer.

Turtle-head.
Chelone glabra. Figwort Family.

One to seven feet high. Stem.—Smooth, upright, branching. Leaves.—

Opposite, lance-shaped, toothed. Flowers.—White or pinkish, growing in a spike or
close cluster. Calyx.—Of five sepals. Corolla.—Two-lipped, the upper lip broad and
arched, notched at the apex, lower lip three-lobed at the apex, woolly bearded in
the throat. Stamens.—Four perfect ones, with woolly filaments and very woolly,
heart-shaped anthers, and one small sterile one. Pistil.—One.
It seems to have been my fate to find the flowers which the
botany relegates to “dry, sandy soil” flourishing luxuriantly in
marshes; and to encounter the flowers which by rights belong to “wet
woods” flaunting themselves in sunny meadows. This cannot be
attributed to the natural depravity of inanimate objects, for what is
more full of life than the flowers?—and no one would believe in their
depravity except perhaps the amateur botanist who is endeavoring to
master the different species of golden-rods and asters. Therefore it is
pleasant to record that I do not remember ever having met a turtle-
head, which is assigned by the botany to “wet places,” which had not
gotten as close to a stream or a marsh or a moist ditch as it well could
without actually wetting its feet. The flowers of this plant are more
odd and striking than pretty. Their appearance is such that their
common name seems fairly appropriate. I have heard unbotanical
people call them “white closed gentians.”