Mend the hold doctrine
“The mend the hold doctrine is a common law doctrine that limits the right of a party in a contract suit to change its litigating position.” Delaney v. Marchon, Inc., 254 Ill. App. 3d 933, 940, 627 N.E.2d 244, 249 (1st Dist. 1993). If the doctrine applies, a contracting party is estopped from “changing the grounds on which he has refused to perform the contract, whether or not it was a ground stated in a pleading or otherwise in the course of litigation.” Id., citing Harbor Insurance Co. v. Continental Bank Corp., 922 F.2d 357, 364 (7th Cir. 1990).
A tangible item of property, such as land, a building or a fixture, that can be inherited or pass by intestacy. See Black’s Law Dictionary 743 (6th ed. 1990); see also Berkowitz v. Urso, 2014 IL App (1st) 121662, ¶ 45, 24 N.E.3d 196, 201 (1st Dist. 2014) (“The right to collect rent has long been established as a right of property ownership. The collection of unaccrued rents is an incorporeal hereditament that passes with the sale or devise of land”) (citations omitted).
Ex Dolo Malo Non Oritur Actio
“The Latin phrase ex dolo malo non oritur actio, meaning ‘[o]ut of fraud no action arises,’ lies at the foundation of the well-established principle of public policy that no court will lend its aid to a person who founds his or her cause of action upon an immoral or illegal act.” Hubert v. Consolidated Medical Laboratories, 306 Ill. App. 3d 1118, 716 N.E.2d 329 (2d Dist. 1999) (citing Black’s Law Dictionary 567 (6th ed. 1990).)
Ex Dolo Malo Non Oritur Actio
“The Latin phrase ex dolo malo non oritur actio, meaning ‘[o]ut of fraud no action arises,’ lies at the foundation of the well-established principle of public policy that no court will lend its aid to a person who founds his or her cause of action upon an immoral or illegal act.” Hubert v. Consolidated Medical Laboratories, 306 Ill. App. 3d 1118, 716 N.E.2d 329
(2d Dist. 1999) (citing Black’s Law Dictionary 567 (6th ed. 1990).)
“The doctrine of ejusdem generis provides that when a statutory clause specifically describes several classes of persons or things and then includes ‘other persons or things,’ the word ‘other’ is interpreted as meaning ‘other such like.'” People v. Davis, 199 Ill.2d 130, 138, 766 N.E.2d 641, 645 (2002) (citations omitted). Thus, “when a general or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same time as those listed.” Black’s Law Dictionary 557 (8th ed. 2004).
Dies Non Juridicus
“A day exempt from court proceedings, such as a holiday or a Sunday.” Black’s Law Dictionary 487 (8th ed. 2004).
Rule of Marshaling Assets
This is “[a]n equitable doctrine that requires a senior creditor having two or more funds to satisfy its debt, to first dispose of the fund not available to a junior creditor.” Black’s Law Dictionary 1359 (8th ed. 2004). Attorneys representing creditors should be aware of this equitable principle. Even if a senior creditor has a clearly superior right to a particular fund or asset, the senior creditor may be compelled to seek compensation elsewhere, if the circumstances warrant. See Metzger v. Emmel, 289 Ill. 52, 62, 124 N.E. 360, 364 (1919) (“[the] doctrine [of marshaling assets] is that, where a creditor has a lien upon two securities with which to make his debt and another party has an interest in one of the securities, that party has a right to compel the creditor first to exhaust the security in which the other party has no interest;” citation omitted).
Pleading (yes, we are defining the term “pleading”)
Everyone knows what constitutes a pleading, right? More, and more, the term is used expansively but not always correctly. Certain clerks of court now refer to motions as pleadings when filing electronically. The writer once was instructed by a judge to file a “pleading,” when in fact a motion was desired. A pleading is traditionally defined as “[a] formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials or defenses.” Black’s Law Dictionary 1191 (8th ed. 2004). The Illinois Code of Civil Procedure, 735 ILCS 5/2-602 and 5/2-603, et seq., similarly describes pleadings as the complaint, counterclaim, answer and affirmative defenses, and reply to the affirmative defenses. And Rule 7 of the Federal Rules of Civil Procedure limits permissible pleadings to the complaint, answer counterclaim, crossclaim, third-party complaint, and a reply to an answer if ordered.
Casual references to pleadings and motions may be acceptable in certain circumstances, but one must always be aware of the formal differences between the two. It may be important. See In re Marriage of Sutherland, 251 Ill. App. 3d 411, 414, 622 N.E.2d 105, 108 (2d Dist. 1993) (wife’s petition for increased child support was a pleading, not a motion, and therefore was not subject to being stricken pursuant to a local rule requiring motions to be noticed for hearing within 60 days).
Damnum Abseque Injuria
Damnum Abseque Injuria refers to asserted damages that are not redressable or attributable to the party charged. See, e.g., Dargie v. East End Bolders Club, 346 Ill. App. 480, 490, 105 N.E.2d 537, 542 (2d Dist. 1952).
Nullum Tempus Occurrit Regi
Nullum Tempus Occurrit Regi is a common law maxim that means “time does not run against the King.” In re Estate of Deuth, 2013 IL App (3d) 120194, ¶ 10 n.1, 992 N.E.2d 180, 183 n.1 (3d Dist.2013). “Under the common law, when a governmental unit acts in a public capacity ( i.e., when it seeks to assert a right belonging to the general public), a statute of limitations may not be asserted against the government unless the statute expressly applies to claims brought by the government.” Id., 2013 IL App (3d) 120194 at ¶ 10, 992 N.E.2d at 183 (citations omitted).
Functus offico literally means “a task performed.” Jefco Laboratories, Inc. v. Carroo, 136 Ill. App. 3d 826, 829, 483 N.E.2d 1004, 1006 (1st Dist. 1985) (citing Black’s Law Dictionary 606 (5th ed. 1979). The common-law doctrine is applied in certain situations such as arbitrations, for the proposition that an arbitrator may not revise the final award following its issuance, or the disposition of an interlocutory injunction when the case is disposed on the merits. Smola v. Greenleaf Orthopedic Associates, 2012 IL App (2d) 111277, ¶ 17, 982 N.E.2d 936, 940 (2d Dist. 2012); Helping Others Maintain Environmental Standards v. Bos, 406 Ill. App. 3d 669, 697, 941 N.E.2d 347, 373 (2d Dist. 2010).
The reversion of land ownership back to the lord when the immediate tenant dies without heirs. Modernly, it means reversion of property to the state upon the death of an owner who has neither a will nor any legal heirs.