Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P24 doc

money is being handled. A trust or CONSTRUCTIVE
TRUST
can be ordered by a judge to place the care
and management of property with one person
for the benefit of another. A partition is an
order dividing property held between two or
more persons. Declaratory relief is granted when
a judge declares the rights of certain parties. The
effect of a
DECLARATORY JUDGMENT is to set future
obligations between the parties.
Under the remedy of specific performance,
a judge may order one party to perform a
specific act. This type of relief is often used to
resolve contractual dispute s involving unique
property. For example, the purchaser of a house
may not wish to obtain money damages if the
seller breaks a contract for sale of the house.
This may be so because a house is considered
unique and thus the damage is irreparable—
that is, it cannot be fully redressed by mere
money damages. If the court agrees that money
damages would be inadequate redress for the
buyer, the judge may order a completion of the
sale to the buyer, instead of money damages, for
the seller’s breach of contract.
Equitable contract remedies offer a judge an
array of choices. Rescission discharges all parties
to a contract from the obligations of the
contract. The remedy of rescission restores
the parties to the positions they held before

the formation of the contract. Restitution is an
order directing one party to give back some-
thing she or he should not be al lowed to keep.
These two remedies may be sought together.
For example, if a buyer purchases an antique
piano on credit and later discovers it is a fake,
the buyer may sue for rescission and restitution.
Under such a dual remedy, the buyer would
return the piano to the seller, and the seller
would return any payments made by the buyer.
Reformation is an equitable way to remedy a
contractual mistake. Suppose, for example, that a
buyer agrees to order 5,000 units of a product but
mistakenly signs a contract ordering the shipment
of 50,000 units. If the seller refuses to provide
fewer than 50,000 units and demands payment for
50,000, the buyer may sue the seller for reforma-
tion of the contract. In such a case, the court may
change the terms of the contract to reflect the
amount of product actually agreed upon.
Equitable relief has long been considered an
EXTRAORDINARY REMEDY, an exception to the
general rule of money damages. Modern courts
still invoke the rule that equitable relief is
available only where money damages are
inappropriate; in practice, however, courts
rarely insist on monetary relief when equitable
relief is requested by a plaintiff.
Equitable Defenses
The doctrine of clean hands holds that the

plaintiff in an equity claim should be innocent
of any wrongdoing or risk dismissal of the case.
Laches proposes that a plaintiff should not
“sleep on his or her rights”—that is, if the
plaintiff knows of the defendant’s harmful
actions but delays in bringing suit, and the
delay works against the rights of the defendant,
the plaintiff risks dismissal of the case. Under
modern law, such defenses are available in any
civil case. They are nevertheless considered
equitable because they invoke notions of
fairness; are not provided in statutes; and are
decided only by a judge, not by a jury.
Other Equitable Doctrines
Many of the equitable doctrines listed here are
codified in statutes. This does not make the
issues they concern “legal” as opposed to
“equitable.” Such issues, whether codified by
statute or not, are left to the discretion of a
judge, who makes a decision based on principles
of fairness.
Equitable Adoption Equitable adoption is the
adoption of a child that has not been formally
completed but that the law treats as final for
some purposes. Generally, a child cannot be
adopted without the fulfillment of certain
procedures. However, it is sometimes fair and
in the best interests of the child to imply that an
adoption has taken place. If an adult has
performed parental duties and has intended to

adopt the child but has failed to fulfill formal
adoption procedures, a court may order that for
some purposes, the child should be considered
part of the adult’s family. The most common
purpose of an equitable adoption is to give a
child the ri ght to inherit from the estate of an
equitably adoptive parent.
Equitable Conversion Equitable conversio n
completes a land sale when the death of a seller
occurs between the signing of the sale agree-
ment and the date of the actual sale. In such a
case, a judge will convert the title to the
purchaser. This is in fulfillment of the time-
honored maxim that “Equity looks upon that as
done which ought to have been done.”
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
EQUITY 219
Equitable Distribution Equitable distribution
can describe a fair allotment of anything. In the
law, equitable distribution is a
TERM OF ART that
describes a method used to divide the property of
a husband and wife upon divorce. Under this
method, the needs and contributions of each
spouse are considered when property is divided
between them. This differs from the process used
under the
COMMUNITY PROPERTY method, where all
marital property is simply divided in half.
Equitable Estoppel Under the doctrine of

equitable
ESTOPPEL, a person is prevented, or
estopped, from claiming a
LEGAL RIGHT,outof
fairness to the opposing party. For example,
suppose that a person willfully withholds infor-
mation in order to avoid defending a lawsuit. If
the withheld information causes the lawsuit to be
brought later than the
STATUTE OF LIMITATIONS
requires, the person may be estopped from
asserting a statute-of-limitations defense.
Equitable Lien A lien is an interest in property
given to a creditor to secure the satisfaction of a
debt. An equitable lien may arise from a written
contract if the contract shows an intention to
charge a party’s property with a debt or
obligation. An equitable lien may al so be
declared by a judge in order to fairly secure
the rights of a party to a contract.
Equitable Recoupmen t Equitable recoupment
prevents a plaintiff from collecting the full
amount of a debt if she or he is holding
something that belongs to the defendant debtor.
It is usually invoked only as a defense to
mitigate the amount a defendant owes to a
plaintiff. For example, if a taxpayer has failed to
claim a tax refund within the time period
prescribed by the statute of limitations, the
taxpayer may regain, or recoup, the amount of

the refund in defending against a future tax
claim brought by the government.
Equitable Servitude An equitable servitude is
a restriction on the use of land or a building that
can be continually enforced. When a land buyer
is aware of an agreement that restricts the use of
the land, the buyer may be held to the terms of
the restriction, regardless of whether it was
written in the deed.
Equity in Property Equity in property is the
value of real estate above all liens or claims
against it. It is used to describe partial owner-
ship. For example, suppose the fair market value
of a home is $80,000. If the homeowner has a
mortgage and owes $50,000 on the mortgage,
the equity amount is $30,000. The recognition
of equity in property allows a property owner to
borrow against a portion of the property value,
even though the owner cannot claim complete
and final ownership.
Equity of Redemption
EQUITY OF REDEMPTION is
the right of a homeowner with a mortgage (a
mortgagor) to reclaim the property after it has
been forfeited. Redemption can be accom-
plished by paying the entire amount of the
debt, interest, and court costs of the foreclosing
lender. With equity of redemption, a mortgagor
has a specified period of time after default and
before foreclosure, in which to reclaim the

property.
Equity Financing When a corporation raises
capital by selling stock, the financing is called
equity financing because the corporation is
offering stockholders a partial interest in its
ownership. By contrast, debt financing raises
capital by issuing bonds or borrowing money,
neither of which conveys an ownership in the
corporation. An equity security is an equitable
ownership interest in a corporation, such as that
accompanying common and preferred shares of
stock.
FURTHER READINGS
Chancery Court: Mississippi. Available online at http://
www.co.jackson.ms.us/DS/ChanceryCourts.html; web-
site home page: (accessed
July 21, 2009).
Delaware State Courts, Court of Chancery. Available
online at web-
site home page: (accessed
July 21, 2009).
Laycock, Douglas. 1993. “The Triumph of Equity.” Law and
Contemporary Problems 56 (summer).
CROSS REFERENCE
Discretion in Decision Making.
EQUITY OF REDEMPTION
The right of a mortgagor, that is, a borrower who
obtains a loan secured by a pledge of his or her real
property, to prevent foreclosure proceedings by
paying the amount due on the loan, a mortgage,

plus interest and other expenses after having failed
to pay within the time and according to the terms
specified therein.
This right is based upon the equitable
principle that it is only fair that a borrower
have a final opportunity to keep his or her
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
220 EQUITY OF REDEMPTION
property even if he or she has failed to make
payments on the mortgage, since the property is
to be sold in foreclosure proceedings.
The equity of redemption must be exercised
by a mortgagor within a certain time after
having defaulted on an obligation. It exis ts only
from the time of default to the time that
foreclosure proceedings are commenced.
ERGO
Latin, therefore; hence; because.
ERIE RAILROAD CO. V. TOMPKINS
A 1938 landmark decision by the Supreme
Court, Erie Railroad Co. v. Tompkins, 304 U.S.
64, 58 S. Ct. 817, 82 L. Ed. 1188, that held that
in an action in a federal court, except as to
matters governed by the U.S. Constitution and
acts of Congress, the law to be applied in any
case is the law of the state in which the federal
court is situated.
Harry J. Tompkins was walking on a
footpath alongside railroad tracks on land
owned by the Erie Railroad Company when

he was struck and injured by a passing train. He
claimed that his injuries resulted from the
NEGLIGENCE of the railroad in operating the train.
Tompkins wanted to sue the railroad and
recover monetary damages for his injuries. He
was a citizen of Pennsylvania, and the Erie
Railroad Company was a New York corpora-
tion. He instituted an action in federal court,
which was empowered, by virtue of its diversity
jurisdiction, to hear the case because the
PLAINTIFF and the DEFENDANT were citizens of
different states.
The issue before the court was what law to
apply in deciding the case. The court would
have applied a federal statute to decide whether
Tompkins was entitled to damages, but none
existed. The court would have applied a state
statute since there was no federal statute, but
Pennsylvania did not have one.
The highest court of Pennsylvania had
established a rule to be followed in state courts
whenever a case like this occurred. The Penn-
sylvania rule was that people who use pathways
along railroad right-of-ways, not railroad cross-
ings, are trespassers to whom railroads were not
to be held liable unless the trespassers were
intentionally injured by the reckless and wanton
acts of the railroads.
The trial judge refused to apply the
Pennsylvania rule. He found that

SWIFT V. TYSON,
41 U.S. (16 Pet.) 1, 10 L. Ed. 865 (1842), which
held that there was a body of federal common
law to be applied in such cases, gave federal
judges the right to ignore state rules that were
not enacted as statutes by their state legislatures.
He held that it was more important for all
federal courts to follow a uniform rule, rather
than for each federal court to apply local state
rules when there was no statute to resolve the
case. He allowed a jury to decide whether the
railroad company was negligent, and the jury
returned a
VERDICT of $30,000 fo r Tompkins.
The Supreme Court reversed the decision
and struck down the rule that allowed federal
judges to ignore state court decisions in
diversity cases. Although this rule had been
followed since Swift v. Tyson was decided in
1842, the Supreme Court ruled that it was
inequitable. According to the old rule, Tompkins
could obtain monetary damages if he sued in
federal court, but not if he initiated his lawsuit a
few blocks away in the Pennsylvania state court.
If the plaintiff and defendant were citizens of
different states, the plaintiff could take advantage
of the right to sue in federal court. There the
plaintiff might win, even if he or she had been
trespassing on railroad property. If the plaintiff
and defendant were both citizens of Pennsylva-

nia, the plaintiff could not sue in federal court.
Pennsylvania courts would all be bound to follow
the rule that prevented recoveries for those
who used paths alongside railroad tracks. The
Supreme Court held that it was unjust for
the plaintiff’s chances of winning to depend on
the fact that the railroad was a Pennsylvania
corporation.
The new rule of Erie Railroad Co. v.
Tompkins provided that federal courts do not
have the power to formulate their own rules of
law. The federal courts must apply appropriate
federal statutes in diversity cases. When there is
no federal law to resolve the question in a
lawsuit, they must follow the law of the state
that is involved. That includes state statutes and
controlling decisions made by the highest court
of that state.
As a result of this case, the decisions of
federal courts are truly uniform only when a
question of federal law is involved. Otherwise,
the states are free to develop their own law and
have it applied to state questions that come into
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ERIE RAILROAD CO. V. TOMPKINS 221
federal court because the parties are from
different states.
FURTHER READINGS
Deeks, Ashley S. 1997. “Raising the Cost of Lying:
Rethinking Erie for Judicial Estoppel.” Univ. of Chicago

Law Review 64 (summer).
Timpa, Andrea V. 2002. “In Re Orso: There is No Need to
Erie-Guess When the Law is Clear and Unambiguous.”
Loyola Law Review 48 (fall).
Younger, Irving. 1978. “What Happened in Erie.” Texas Law
Review 56.
CROSS REFERENCE
Diversity of Citizenship.
ERRATUM
[Latin, Error.] The term used in the Latin
formula for the assignment of mistakes made in
a case.
After reviewing a case, if a judge decides that
there was no error, he or she indicates so by
replying, “In nollo est erratum,” which means,
“no error was committed.” The plural is errata.
ERROR
A mistake in a court proceeding concerning a
matter of law or fact, which might provide a
ground for a review of the judgment rendered in
the proceeding.
The nature of the error dictates the
availability of a legal remedy. Generally speak-
ing, mistaken or erroneous application of law
will void or reverse a judgment in the matter.
Conversely, errors or mistakes in facts, upon
which a judge or jury relied in rendering a
judgment or
VERDICT, may or may not warrant
reversal, depending upon other factors involved

in the error. However, appellate decisions make
a distinction—not so much between fact and
law, but rather, betw een
HARMLESS ERROR and
reversible error—in deciding whether to let stand
or vitiate a judgment or verdict.
In litigation, a harmless error means that,
despite its occurrence, the ultimate outcome of
the case is not affected or changed, and the
mistake is not prejudicial to the rights of the
party who claimed that the error occurred. In
other words, the party claiming error has failed
to convince an appellate court that the outcome
of the litigation would have been different if the
error had not occurred. Most harmless errors
are errors of fact, such as errors in dates, times,
or inconsequential details to a factual scenario.
In contrast, error that is deemed harmful
in that it biased the ultimate decision of a jury
or judge, constitutes reversible error, i.e., error
that warrants reversal of a judgment (o r
modification, or retrial). A reversible error
usually refers to the mistaken application of a
law by a court, as where, for example, a court
mistakenly assumes jurisdiction over a matter
that another court has exclusive jurisdiction
over. A court may erroneously apply laws and
rules to admit (or deny the admission of)
certain crucial evidence in a case, which may
prove pivotal or dispositive to the outcome of

the trial and warrant reversal of the judgment.
Occasionally, a court may charge the jury with
an instruction that applies the wrong law, or
with an improper interpretation of the correct
law. If the party claiming error can prove that
the error was prejudicial to the outcome of the
case or to the party’s rights, the error will most
likely be deemed reversible.
An example of potential harmful or revers-
ible error of both law and fact might involve the
age of a
RAPE victim in a criminal trial for
statutory rape, (where guilt is premised upon the
actual age of the victim, and not on whether the
sexual conduct was consensual).
In appellate practice, a party may not appeal
an error that it induced a court to make (as by
petitioning or moving the court to make a
ruling which is actually erroneous). Appellate
decisions refer to this as an invited error and will
not permit a party to take advantage of the error
by having the decision overruled or reversed.
The general use of the term error is often
distinct from the use of the word mistake,
especially in the law of contracts. In such cases,
a
MISTAKE OF LAW or fact (in the making of a
contract, or performance thereupon) might
result in a finding of harmless or reversible
error, but the terms are not transitio nal.

CROSS REFERENCES
Clerical Error; Plain-Error Rule.
v
ERVIN, SAMUEL JAMES, JR.
Samuel J. Ervin Jr. had a long career in law and
politics including 20 years in the U.S. Senate. He
is most famous, however, for presiding over the
Senate Select Committee on Presidential Cam-
paign Activities, popularly known as the
WATER-
GATE
Committee.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
222 ERRATUM
Ervin was born September 27, 1896, in
Morganton, North Carolina. He received an
A.B. from the University of North Carolina
in 1917 and served as an infantryman in France
during
WORLD WAR I. When he returned from
France, he went to Harvard Law School where
he received an LL.B. in 1922.
After law school, Ervin returned to North
Carolina where for the next 30 years he
practiced law, ventured into politics, and served
as a county and state judge. Ervin’s political
career began in 1923 when he was elected to the
North Caroli na General Assembly; he served
two more terms in the legislature in 1925 and
1931. His most notable achievement in the

legislature came in 1925 when he helped defeat
a bill that would have prohibited the teaching of
the theory of evolution in North Carolina
public schools.
From 1935 until 1937 Ervin served as a
judge in the Burke Coun ty Criminal Court and,
from 1937 until 1943, in the Superior Court. He
resigned the latter post to return to his law
practice. In 1946–47 he served part of a term in
the U.S. House of Representatives, completing
the term of his brother who had died after being
elected to office. Ervin chose not to run for
reelection when the term was over and returned
to North Carolina. In 1948 he became a judge
on the North Carolina Supreme Court, a
position that he held until 1954.
In 1954 the governor of North Carolina
appointed Ervin to complete the term of a U.S.
senator who had died. Ervin continued to be
elected to the Senate until his retirement
in 1974.
As a senator, Ervin fought against measures
that he believed would endanger individual
liberty. This led him to oppose most
CIVIL RIGHTS
legislation—which he believed would confer
freedom on some at the expense of others—as
well as to be instrumental in stopping a
proposed
CONSTITUTIONAL AMENDMENT that would

have permitted prayer in the public schools. For
the same reason, he oppos ed a government
proposal to maintain computerized files on
persons who participated in political protests.
Such records, said Ervin, raised the specter of a
police state. On social issues, he usually voted
Samuel J. Ervin Jr.
LIBRARY OF CONGRESS
Samuel James Ervin Jr. 1896–1985
❖
1896 Born,
Morganton, N.C.
◆
1917 Joined
U.S. Army
◆
1948–54
Served on
North Carolina
Supreme Court
1923 Elected to North
Carolina General Assembly
1963 U.S. Supreme Court
banned school prayer
1954–74
Represented
North Carolina
in U.S. Senate
1985 Died, Winston-
Salem, N.C.

❖
◆◆
◆
1925 Scopes trial;
helped defeat bill that
would have prohibited
teaching of evolution
in N.C. schools
1980 The
Whole Truth:
The Watergate
Conspiracy
published
1984 Autobiography
Preserving the Constitution
published
1914–18
World War I
1961–73
Vietnam War
1939–45
World War II
1950–53
Korean War
▼▼
▼▼
19001900
19501950
19751975
20002000

19251925
1935–43 Served as judge in Burke
County Criminal and Superior Courts
1973 Presided
over the Senate
Watergate
hearings
◆
◆
◆
1974 President Nixon resigned from office
THERE IS NOTHING IN
THE
CONSTITUTION
THAT AUTHORIZES OR
MAKES IT THE
OFFICIAL DUTY OF A
PRESIDENT TO HAVE
ANYTHING TO DO
WITH CRIMINAL
ACTIVITIES
.
—SAMUEL ERVIN JR.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ERVIN, SAMUEL JAMES, JR. 223
with the more conservative members of the
Senate. He opposed the EQUAL RIGHTS AMEND-
MENT
, and, as a member of the Senate ARMED
SERVICES

Committee, he supported U.S. involve-
ment in Vietnam.
Ervin was widely respected in the Senate for
his knowledge of the Constitution, which he
described as one of the greatest works in the
English language and said should be taken like
mountain whiskey—undiluted and untaxed.
Nonetheless, he might not have become a
national figure had it not been for his role in
the Senate Watergate hearings in 1973. As Ervin
presided over the nationally televised hearings,
he became familiar to millions of viewers.
Known among his fellow senators for his wit
and erudition, Ervin liked to describe himself as
“just an ol’ country lawyer.” He published
several books, including The Whole Truth: The
Watergate Conspiracy (1980), Humor of a
Country Lawyer (1983), and an autobiography
titled Preserving the Constitution (1984). Ervin
died April 23, 1985, in Winston-Salem, North
Carolina.
CROSS REFERENCES
Nixon, Richard Milhous; Watergate.
ESCALATOR CLAUSE
A stipulation contained in a union contract
stating that wages will be raised or lowered, based
upon an external standard such as the cost of
living index. A term, ordinarily in a contract or
lease, that provides for an increase in the money to
be paid under certain conditions.

Escalator clauses frequently appear in busi-
ness contracts to raise prices if the individual
providing a particular service or type of
merchandise is forced to pay more for labor
or materials.
Such clauses are also often part of con-
tracts or leases executed subject to price-
control regulations. When this type of provi-
sion is in a lease, a landlor d has the po wer to
collect the maximum amount of rent allowed
under rent regulations that are in effect at the
time of the lease. The escalator clause provides
that if the rent regulations are altered during
thetimeofthelease,thetenantmustpaythe
new rental fee computed pursuant to the
revised regulations.
ESCAPE
The criminal offense of fleeing legal custody
without authority or consent.
In order for an individual who has been
accused of escape to be convicted, all elements
of the crime must be proved. Such elem ents are
governed by the specific language of each state
statute. The general common-law principles
may be incorporated within a statute, or the law
may depart from them in various ways. Federal
statutes also make it a crime to escape from
federal custody.
Ordinarily, the crime of escape is committed
either by the prisoner or by the individual who

has the responsibility for keeping the prisoner in
custody. The custodian of the prisoner is not
ordinarily a warden for the entire prison, but is
generally the person who has immediate
responsibility for guarding the prisoner. Certain
states currently punish negligent guards ad-
ministratively, such as by divesting them of their
rank or seniority, or by firing them. Criminal
punishment is generally reserved for guards
who actively cooperate in facilitating a prison-
er’s escape.
An escape takes place when the prisoner is
able to remove himself or herself from the
lawful control of an authorized custodian. An
individual can be found guilty of escape even in
the event that his or her initial arrest was
wrongful, since an unla wful arrest must prop-
erly be argued in court. The theory is that in
order for the process of justice to operate in an
orderly manner, a prisoner must not be given
the privilege of determining whether or not he
or she should be confined. If an arrest is totally
unlawful, however, an individual cannot be
guilty of escape. This might occur, for example ,
if a store security guard has no grounds to arrest
a shoplifter but does so anyway.
In order to prove that a criminal escape took
place, it is ordinarily unnecessary to show that
the accused party w as actually confined within
prison walls. Once an arrest has taken place, the

prisoner cannot leave of his or her own volition.
Frequently the degree of the crime is increased
when the escape is from a particular kind of
confinement. For example, the law might deal
more harshly with an individual who escapes
from armed prison guards while working on a
chain gang than with an individual who runs
away while an arresting officer interrogates
witnesses. In other jurisdictions, the degree of
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
224 ESCALATOR CLAUSE
criminal escape is dependent upon the nature of
the crime that initially precipitated the prison-
er’s confinement.
It is ordinarily necessary to prove that an
escaped prisoner was actually attempting to
evade legal confinement. For example, if the
prisoner went to the wrong place by mistake, he
or she will probably not be found guilty of a
criminal escape.
Other crimes are related to escape, such as
the offense of aiding escape, which is committed
by a person who, for example, smuggles a
prisoner out of jail. Ordinarily a conviction for
aiding escape is punishable by a sentence for the
number of years specified by the criminal
statute.
In some states it is a separate crime to
harbor or conceal an escaped prisoner. To obtain
a conviction against the individual accused of

this crime, it must be shown that the individual
believed that he or she was aiding an escaped
prisoner with the intent to help him or her get
clear of lawful custody. It does not constitute a
defense to assert that the prisoner never should
have been arrested.
Prison breach is an escape committed
through the use of force and is more heinous
than simple escape. It is not a separate crime,
however, and the state may regard it as a more
serious degree of criminal escape. An attempt to
commit escape or any of the related crimes is
punishable, even though such an attempt might
not have been successful.
ESCHEAT
The power of a state to acquire title to property for
which there is no owner.
The most common reason that an escheat
takes place is that an individual dies intestate,
meaning without a valid will indicating who is
to inherit his or her property, and without
relatives who are legally entitled to inherit in the
absence of a will. A state legislature has the
authority to enact an escheat statute.
In feudal England, escheat was a privilege
exclusively given to the king. The policy of
inheritance was to preserve the wealth of noble
families by permitting one individual to inherit
an entire estat e. There was no writing of wills
that would leave property to several heirs

because that would have the effect of breaking
up the estate. In addition, the law established a
hierarchy of heirs who stood in line to inherit
the estate. If there was no living person of a
designated class to inherit, the king took the
property by escheat.
Historically, reasons existed for escheat
apart from the absence of heirs to inherit a
decedent’s property. When corporations were
subject to strict regulation, it was unlawful for a
corporation to own property in any way not
permitted by its state-granted charter. Any
property beyond that needed by the corporation
for the operation of its business , or in excess of
the amount designated in its charter, or held for
a period of time beyond that which was
permitted, was subject to escheat.
Certain states mandated escheat of property
belonging to religious societies that either
promoted
POLYGAMY or neglected to incorporate
as required by law. Additionally, where public
lands were provided for settlers, statutes fre-
quently made provisions for escheat when one
individual took possession of more than the
permitted acreage or did not properly cultivate
the homestead.
Dissimilarities
Escheat is distinguishable from forfeiture even
though both terms refer to a relinquishment of

property. Forfeiture can be applied to any type
of property interest, including possession, the
right to inherit, or the right of reversion. In
addition, forfeiture often is used as a penalty
against an individual who has an interest in
property, for an illegal act. An escheat takes
place due to the lack of any person with a valid
interest in the property, and is not usually
linked to any illegality or wrongdoing.
Succession is the passing of a decedent’s
property to his or her heirs. Escheat is not
treated in law like succession; the two concepts
are completely separate.
Property Subject to Escheat
Ordinarily, the property subject to escheat is all
the property within the state belonging to the
original owner upon his or her death. Although
initially the doctrine was applicable solely to real
property, it presently extends to personal
property, including such intangibles as bank
accounts and shares of stock. Certain other
types of property can be the subject of escheat
for lack of a known owner. The determination
is contingent upon state law.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ESCHEAT 225
Unclaimed or abandoned property escheats
to the state under some statutes. However, the
state cannot merely declare property abandoned
and appropriate it. Such laws must function

within co nstitutional limits by observing the
requirements imposed by due process. The state
is required to adopt a routine procedure for
notifying the public and must provide potential
claimants an opportunity to argue that the
property might belong to them. Without
declaring that certain abandoned property has
been escheated, the state may lawfully possess
the property and hold it for a period of time so
that claims can be asserted. A state is not
mandated to take over unclaimed property but
may choose to exercise the power to escheat
only when the value of the property does not
exceed the expense of
LEGAL PROCEEDINGS.
Items subject to escheat under various
statutes include abandoned bank accounts,
deposits left with utility companies, stock divi-
dends whose owners cannot be found; unpaid
wages; unclaimed legacies from the estate of a
deceased relative; insurance money to unknown
beneficiaries; and unclaimed money retained by
employers or public officials.
Certain statutes specify that the property of
charitable or religious institutions escheats
upon dissolution if its donors have not retained
the right to recover it when it is no longer used
for religious or charitable objectives.
Procedure
Escheat statutes vary by state, but all prescribe a

procedure for location of the rightful owner. In
some states title to certain types of property
automatically passes to the state when it
escheats for lack of a proper claimant. In other
states, a required period of time must elapse
prior to the commencement of escheat pro-
ceedings. This does not bar a claimant from
stating his or her claim before completion of the
escheat proceedings. Some laws require clai-
mants to assert their rights within a period of
time or forfeit them. Often, states mandate that
individuals administering estates notify the state
government of the existence of property that
might be subject to escheat.
The primary burden of proving that there is
no proper individual entitled to own the
property in question rests with the state, and
the general rules regarding the admissibility of
evidence are applicable. Rules of presumption,
such as the common-law presumption of death
after a seven-year disappearance, can be used to
support the case of the state. After the state has
proved a legally sufficient case, any individual
claiming a right to the property has an
opportunity to go forward and argue against
the evidence submitted by the state.
Some states offer money to informers who
notify the state of property that might be subject
to escheat. Informers might be required to
provide evidence and pursue the case to a

conclusion before they will be entitled to a fee.
Other states provide compensation for an
escheater, a person appointed by the court to
manage the claim of the state for escheat. An
escheater is entitled to be paid a reasonable
amount even if he or she does not succeed in
recovering the property for the state.
FURTHER READINGS
Andreoli, Anthony L., and J. Brooke Spotswood. 2002.
Unclaimed Property: Laws, Compliance, and Enforce-
ment. Chicago: CCH.
Haines, Martin L. 2000. “Change May Be in Offing for Rules
Governing Abandoned Money.” New Jersey Law Journal
162 (October 2).
Ramasastry, Anita. 2001. “State Escheat Statutes and
Possible Treatment of Stored Value, Electronic
Currency, and Other New Payment Mechanisms.”
Business Lawyer 57, no. 1 (November).
Woodards, Shantee. 2003. “Unclaimed Property Piles Up.”
Detroit News (September 13).
ESCOBEDO V. ILLINOIS
One of three important cases decided by the
U.S. Supreme Court in the 1960s on the subject
of the
RIGHT TO COUNSEL, Escobedo v. Illinois 378
U.S. 478, 4 Ohio Misc. 197, 84 S.Ct. 1758, 12 L.
Ed.2d 977 (U.S.Ill. 1964), was a far-reaching
decision which held for the first time that
defendants had a right to counsel even before
they were indicted for a particular crime.

However, the decision was overshadowed by
the high court’s Miranda decision two years
later, and later decisions by both the Supreme
Court and lower courts indicated the applica-
tion of the decision in Escobedo was to be
limited to its facts. Nevertheless, the Supreme
Court has never directly overruled Escobedo.
The case involved Danny Escobedo, who was
arrested on the night of January 19, 1960, for the
MURDER of his brother-in-law, but was released
after contacting his lawyer. The lawyer told him
not to answer any more questions if the police
rearrested him. Ten days later, he was arrested a
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
226 ESCOBEDO V. ILLINOIS
second time and made a request to contact his
attorney repeatedly. This request was denied.
His attorney then arrived at the police
station and requested to see Escobedo but was
refused permission to see him. The police then
told Escobedo that his alleged coconspirator in
the shooting of his brother-in-law had con-
fessed and implicated Escob edo. Escobedo
demanded to confront his coconspirator, and
when he was brought face-to-face with him he
said, “I didn’t shoot Manuel (Escobedo’s
brother-in-law), you did it.” After this admis-
sion of his involvement in the crime, police were
able to obtain a more elaborate written confes-
sion, and Escobedo was eventually convicted of

murder. Escobedo appealed his conviction,
claiming his confession was obtained without
his lawyer being present in violation of his right
to counsel, and should be thrown out.
Escobedo’s case reached the Supreme Court
at a precipitous time. Just six weeks before, the
high court had decided
MASSIAH V. UNITED STATES,
377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246
(U.S.N.Y. 1964), in which the Court ruled for
the first time that the
SIXTH AMENDMENT right to
counsel in order to exclude a confession. That
case involved a
DEFENDANT who made a statement
to an accomplice after he had been indicted,
gotten an attorney, and had been released on bail.
Unknown to the defendant, his accomplice was
working with the police. The Court held that the
defendant’s Sixth Amendment rights had been
violated because the police had used the accom-
plice to elicit incriminatory statements after the
right to counsel had attached.
The Supreme Court in Escobedo reached a
similar result in a 5 to 4 decision. Writing for the
majority, Justice
ARTHUR GOLDBERG first stated that
Escobedo’s right to counsel did not depend on
whether, at the time of interrogation, the
authorities have secured a formal indictment.

In overturning Escobedo’s conviction and ruling
that his right to counsel had been violated,
Goldberg then enunciated a somewhat compli-
cated holding that set out numerous benchmarks
in determining whether a defendant’sSixth
Amendment right to counsel had been violated.
Wrote Goldberg: “We hold, therefore, that
where, as here, the investigation is no longer a
general inquiry into an unsolved crime but has
begun to focus on a particular suspect, the
suspect has been taken into police custody, the
police carry out a process of interrogations that
lends itself to eliciting incriminating statemen ts,
the suspect has requested and been denied an
opportunity to consult with his lawyer, and the
police have not effectively warned him of his
absolute constitutional right to remain silent,
the accused has been denied ‘The Assistance of
Counsel’ in violation of the Sixth Amendment
to the Constitution as ‘made obligatory upon
the States by the Fourteenth Amendment,’ and
that no statement elicited by the police during
the interrogation may be used against him at a
criminal trial.”
The high court decision in Escobedo had
many observers theorizing the Court would try to
establish a broad right to counsel utilizing the
Sixth Amendment whenever police took a suspect
into custody. However, two years later, the high
court changed course in

MIRANDA V. ARIZONA 384
U.S. 436, 10 Ohio Misc. 9, 86 S.Ct. 1602, 16 L.
Ed.2d 694 (U.S.Ariz. 1966), using the
FIFTH
AMENDMENT
right against self-incrimination to
hold that statements obtained from defen dants
during incommunic ado inter rogation in a
police-dominated atmosphere, without full
warning of constitutio nal rights, we re inadm is-
sible. Miranda made the crucial question
whether a defendant was in custody or otherwise
significantly deprived of his freedom of move-
ment, rather than the “focus of investigation”
test enunciated in Escobedo.
Since the Miranda decision, most Supreme
Court and lower court cases mentioning the
right to counsel have relied on the Fifth
Amendment and Miranda, and those that have
relied on the Sixth generally lean on the earlier
Massiah decision, rather than the more complex
tests of Escobedo. Escobedo has been limited by
the Supreme Court and lower courts to only
apply to the facts of its case, and since those
facts were unusual, it is rarely invoked by a
court as primary law when determining whether
the right to counsel exists.
FURTHER READINGS
Cook, Joseph. 2002. Constitutional Rights of the Accused—
Pre-trial Rights. Eagan, MN: West.

Israel, Jerold H., and Wayne R. LaFave, eds. 2006. Criminal
Procedure: Constitutional Limitations in a Nutshell.
7th ed. Eagan, MN: West.
Romans, Neil T. 1974. “The Role of State Supreme Courts in
Judicial Policy Making: Escobedo, Miranda and the Use
of Judicial Impact Analysis.” The Western Political
Quarterly 27.
CROSS REFERENCE
Prisoners’ Rights.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ESCOBEDO V. ILLINOIS 227
ESCROW
Something of value, such as a deed, stock, money,
or written instrument, that is put into the custody
of a third person by its owner, a grantor, an
obligor, or a promisor, to be retained until the
occurrence of a contingency or performance of a
condition.
An escrow also refers to a writing deposited
with someone until the performance of an act
or the occurrence of an event specified in that
writing. The directions given to the person who
accepts delivery of the document are called the
escrow agreement and are binding between the
person who promises and the person to whom
the promise is made. The writing is held in
escrow by a third person until the purpose of the
underlying agreement is accomplished. When
the condition specified in the escrow agreement
is performed, the individual holding the writing

gives it over to the party entitled to receive it.
This is known as the second delivery.
Any written document that is executed in
accordance with all requisite legal formalities
may properly be deposited in escrow. Docu-
ments that can be put in escrow include a deed,
a mortgage, a promise to pay money, a bond, a
check, a license, a patent, or a contract for the
sale of real property. The term escrow initially
applied solely to the deposit of a formal
instrument or document; however, it is popu-
larly used to describe a deposit of money.
The escrow agreement is a contract. The
parties to such an agreement determine when
the agreement should be released prior to
making the deposit. After the escrow agreement
has been entered, the terms for holding and
releasing the document or money cannot be
altered in the absence of an agreement by all the
parties.
A depositary is not a party to the escrow
agreement, but rather a custodian of the deposit
who has no right to alter the terms of the
agreement or prevent the parties from altering
them if they so agree. The only agreement that
the depositary must make is to hold the deposit,
subject to the terms and conditions of the
agreement. Ordin arily, the depositary has no
involvement with the underlying agreement;
however, an interested party may, in a few

states, be selected to be a depositary if all parties
are in agreement. In all cases, a depositary is
bound by the duty to act according to the trust
placed in him or her. If the depositary makes a
delivery to the wrong person or at the wrong
time, he or she is liable to the depositor.
The document or the money is only in
escrow upon actual delivery to the depositary.
Ordinarily, courts are strict in their requirement
that the terms of the agreement be completely
performed before the deposit is release d. A
reasonable amount of time must generally be
allotted for performa nce. Parties may, however,
make the agreement that time is of the esse nce,
and in such a case, any delay beyond the period
specified in the agreement makes the individual
who is obligated to act forfeit all his or her
rights in the property in escrow.
ESPIONAGE
The act of securing information of a military or
political nature that a competing nation or
organization holds secret. It can involve the analysis
of diplomatic reports, publications, statistics, and
broadcasts, as well as spying, a clandestine activity
carried out by an individual or individuals working
under secret identity to gather classified information
on behalf of another entity or nation. In the United
States, the organization that heads most activities
dedicated to espionage is the Central Intelligence
Agency (CIA).

Espionage, commonly known as “spying,” is
the practice of secretly gathering information
about a foreign government or a competing
enterprise, with the purpose of placing one’sown
government or corporation at some strategic or
financial advantage. Federal law prohibits espio-
nage when it jeopardizes the national defense or
benefits a foreign nation (18 U.S.C.A. § 793).
Criminal espionage involves betraying U.S.
government secrets to other nations.
Despite its illegal status, espionage is
commonplace. Through much of the twentieth
century, international agreements implicitly
accepted espionage as a natural political activity.
This gathering of intelligence benefited compet-
ing nations that wished to stay one step ahead of
each other. The general public never hears of
espionage activities that are carried out correct-
ly. However, espionage blunders can receive
national attention, jeopardizing the security of
the nation and the lives of individuals.
Espionage is unlikely to disappear. Since the
late nineteenth century, nations have allowed
each other to station so-called military attachés
in their overseas embassies. These figures collect
intelligence secrets about the armed forces of
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
228 ESCROW