Loading ...
Sorry, an error occurred while loading the content.

Fwd: Re: [ed44] Re: Has the following ever worked for anyone?

Expand Messages
  • Patrick
    You realize that there are some who would likely go into a fit over the mere suggestion that a PROMISE TO APPEAR is a form of a CONTRACT and that the LEO has
    Message 1 of 1 , Aug 28, 2006
    • 0 Attachment

      You realize that there are some who would likely go into a fit over the mere suggestion that a PROMISE TO APPEAR is a form of a CONTRACT and that the LEO has RELEASED you on your OWN RECOGNIZANCE.

        PROMISE. A declaration, verbal or written, made by one person to another for a good or valuable consideration in the nature of a covenant by which the promisor binds himself to do or forbear some act, and gives to the promisee a legal right to demand and enforce a fulfillment. See Taylor v. Miller, 113 N. C. 340, 18 S. E. 504; New- comb v. Clark, 1 Denlo (N. Y.) 228; Foute v. Bacon, 2 Cush. (MIss.) 164; U. S. v. Bàltic Mills Co., 124 Fed. 41, 59 0. 0. A. 558.
        “Promise” is to be distinguished, on the one hand, from a mere declaration of intention involving no engagement or assurance as to the future; and, on the other, from “agreement,” which is an obligation arising upon reciprocal promises, or upon a promise founded on a consideration.. Abbott
      “Fictitious promises,” sometimes called “implied promises,” or “promises implied In law,” occur in the case of those contracts which were invented to enable persons in certain cases to take advantage of the old rules of pleading peculiar to contracts, and which are not now of practical Importance. Sweet.
      —Mutual promises. Promises simultaneously made by and between two parties; each being the consideration. for the other.—Naked promise. One given without any consideration, equivalent, or reciprocal obligation, and for that reason not enforceable at law. See Arend v. Smith, 151 N. Y. 502, 45 N. B. 872.
      New promise. An undertaking or promise, based upon and having relation to a former promise which, for some reason, can no longer be enforced, whereby the promiser recognizes and revives such former promise and engages to fulfill it.—Parol promise. A simple contract; a verbal promise. 2 Steph. Comm. 109.—Promise of marriage. A contract mutually entered into by a man and a woman that they will marry each other.  BLACK’S LAW DICTIONARY, 2ND EDITION, pg.954

        RECOGNIZANCE. An obligation of record, entered into before some court of record, or magistrate duly authorized, with condition to do some particular act; as to appear at the assizes, or criminal court, to keep the peace, to pay a debt, or the like. It resembles a bond, but differs from it in being an acknowledgment of a former debt upon record. 2 Bl. Comm. 341. See U. S. v. Insley (C. C.) 49 Fed. 778; State v. Walker , 50 N. H. 178; Crawford v. Vinton, 102 Mich. 83, 62 N. W. 988 ; State v. Grant, 10 Minn. 48 (Gil. 22); Longley v. Vose, 27 Me. 179; Conn. v. Emery, 2 Bin. ( Pa. ) 431.

        In criminal law, a person who has been found guilty of an offense may, in certain cases, he required to enter into a recognizance by which he binds himself to keep the peace for a certain period. Sweet.

        In the practice of several of the states, a recognizance is a species of bail-bond or security, given by the prisoner either on being bound over for trial or on his taking an appeal.  BLACK'S LAW DICTIONARY, 2ND EDITION, page 997.

       

      Own Recognizance (OR): When a person is released from custody and not required to pay bail because of his or her promise to come to court to answer a criminal charge. If the defendant does not return to court when promised, he or she can be charged with a misdemeanor

      http://www.courtinfo.ca.gov/selfhelp/glossary.htm 

       

      The FACT is that the UNIFORM TRAFFIC CITATION (or any ticket absent a LAWFUL ARREST), in and of itself, is NOT a VALID COMPLAINT and SUMMONS and does NOT confer PERSONAL JURISDICTION on the COURT.

       

      “Several courts have held that a uniform traffic ticket is merely a notice to a person to appear in a given court on a given day to then be charged with a specific crime. See People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901 (1957). The party served with the traffic ticket is merely notified that the officer signing the ticket intends to submit a complaint to the court at a certain time and place and that if the party served does not appear then and there, the court will be requested to issue a warning for his arrest. People v. McMillan, 112 Misc.2d 901, 447 N.Y.S.2d 626, 628 (1982); see also; Bayse v. State, 420 So.2d 1050, 1052 ( Miss. 1982); State v. Grady, 548 S.W.2d 601, 606 ( Mo. App. 1977); People v. Hale, 75 A.D.2d 606, 426 N.Y.S.2d 827 (1980); Coville v. Bennett, 57 Misc.2d 838, 293 N.Y.S.2d 685 (1968)."
      http://www.hsba.hostme.com/Hawaii/Admin/Ag/op87-5.htm

       

      "[6] Courts of law have no inherent power to arrest citizens or place them in jail. The Legislature makes the law on that subject within constitutional limits. The jurisdiction of courts in matters of arrest is controlled by the Constitution in the first instance, and the next by statutory authorization. (In re Mulford, 73 Cal.App.2d 453 [166 P.2d 890].)

      ...

      The citation used in the case at bar lacks the necessary ingredients to comply with the requirement of summons, and therefore the service of it does not confer upon the court jurisdiction of the person.."  Pousson v. Superior Court, 165 Cal.App.2d 750 (1958)

       

      http://login.findlaw.com/scripts/callaw?dest=ca/calapp2d/165/750.html

       

      And a PROMISE TO APPEAR results in a VOLUNTARY, GENERAL APPEARANCE unless you challenge the SUBJECT of PERSONAL JURISDICTION. 

       

      Voluntary appearance.  An appearance entered by a party’s own will, without the service of process.  Black’s Law Dictionary 7th Ed.

       

      General appearance.  An appearance for general purposes, which waives a party’s ability later to dispute the court’s personal jurisdiction.  Black’s Law Dictionary 7th Ed.

       

      The FACT is that you are voluntarily AGREEING to certain TERMS & CONDITIONS (thus creating a LEGAL OBLIGATION) and given WARNING of the CONSEQUENCES of your FAILURE to fulfill your OBLIGATION to APPEAR.

       

      WARNING: If you fail to appear in court as you have promised, you may be arrested and punished by 6 MONTHS IN JAIL AND/OR A $1,000 FINE regardless of the disposition of the original charge. (Veh. Code, § 40508 or Pen. Code, § 853.7.) In addition, any person who fails to appear as provided by law may be deemed to have elected to have a trial by written declaration (in absentia) pursuant to Vehicle Code section 40903(a) upon any alleged infraction, as charged by the arresting/citing officer.

       

      PENAL CODE 853.7.  Any person who willfully violates his or her written promise to appear or a lawfully granted continuance of his or her promise to appear in court is guilty of a misdemeanor, regardless of the disposition of the charge upon which he or she was originally arrested.

      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=853.5-853.85

       

      OBLIGATIONS are created via CONTRACT or an OPERATION OF LAW.

       

      CIVIL CODE 4.  The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code.  The Code establishes the law of this State respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice.
      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=00001-01000&file=2-21

        

      CIVIL CODE 1427.  An obligation is a legal duty, by which a person is bound to do or not to do a certain thing.

      CIVIL CODE 1428.  Section Fourteen Hundred and Twenty-eight.  An obligation arises either from:
         One--The contract of the parties; or,
         Two--The operation of law.  An obligation arising from operation of law may be enforced in the manner provided by law, or by civil action or proceeding.

       

      CIVIL CODE 1429.  The rules which govern the interpretation of contracts are prescribed by Part II of this Division.  Other obligations are interpreted by the same rules by which statutes of a similar nature are interpreted.

       

      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1427-1428

       

      Operation of law. This term expresses the manner in which rights, and sometimes liabilities, devolve upon a person by the mere application to the particular transaction of the established rules of law, without the act or cooperation of the party himself.  BLACK’S LAW DICTIONARY, 2ND EDITION, pg.855.

       

      In the case of a PROMISE TO APPEAR, a LEGAL OBLIGATION created by an ALLEGEDLY a VOLUNTARY ACT.

       

      "Tilton argues that he cannot be guilty of violating these statutes because he was not asked to acknowledge, and he did not refuse to acknowledge, receipt of a copy of the traffic infraction. His premise is that promising to appear in court is different from acknowledging receipt of a copy of a document, and that he was only asked to make a promise to appear in court.
       
      [1] We agree. A person does not acknowledge receipt of a copy of a document merely because he or she promises to appear in court. Nor does a person decline to acknowledge receipt of a copy of a document merely because he or she declines to promise to appear in court. Thus, Tilton did not refuse to acknowledge receipt of a copy of the notice of infraction merely because he declined to promise to appear in court, and the City's evidence is insufficient to prove the facts needed to convict under RCW 46.61.021(3).
       
      [2] Our conclusion is supported by the fact that if we held otherwise, we would allow Tilton to be convicted for refusing to make a promise that he had a right not to make. As the City conceded at oral argument, a motorist stopped for a traffic infraction has no legal duty to promise to appear in court; if he or she refuses to make such a promise, he or she can be taken to jail, but he or she does not commit a crime merely by virtue of the refusal." Port Orchard v. Tilton, 77 Wn.App 178 (1995)
      http://search.mrsc.org/nxt/appellate/077wnapp/077wnapp0178.htm

       

      MAXIMS OF LAW

      Consent makes the law. A contract is a law between the parties, which can acquire force only by consent.

      Consent makes the law: the terms of a contract, lawful in its purpose, constitute the law as between the parties.

      To him consenting no injury is done.

      He who consents cannot receive an injury.

      Consent removes or obviates a mistake.  

      One who wills a thing to be or to be done cannot complain of that thing as an injury.

      The agreement of the parties makes the law of the contract.

      Agreement takes the place of the law: the express understanding of parties supercedes such understanding as the law would imply.

      Manner and agreement overrule the law

       

      And since we are PRESUMED to KNOW the LAW, absent EVIDENCE to the CONTRARY, I would have take one’s SIGNATURE on the NOTICE TO APPEAR as EVIDENCE of their CONSENT; that they AGREED to give their PROMISE TO APPEAR in return for a RELEASE on you’re their OWN RECOGNIZANCE; that they UNDERSTOOD the consequences of their actions; and that a FAILURE TO APPEAR was a BREACH of that "contract" and PROCEED according to the TERMS of the "contract."

       

      CIVIL CODE 1549.  A contract is an agreement to do or not to do a certain thing.

      CIVIL CODE 1550.  It is essential to the existence of a contract that there should be:
         1. Parties capable of contracting;
         2. Their consent;
         3. A lawful object; and,
         4. A sufficient cause or consideration.


      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1549-1550

       

      CIVIL CODE 1566.  A consent which is not free is nevertheless not absolutely void, but may be rescinded by the parties, in the manner prescribed by the Chapter on Rescission.
      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1565-1590

       

      CIVIL CODE 1614.  A written instrument is presumptive evidence of a consideration.
      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1605-1615

       

      Of course in most cases the PROMISE TO APPEAR was extracted on the roadside by an ARMED INDIVIDUAL and was obtained over FALSE PRETENSES since it was PRESUMEDLY obtained after you were ARRESTED WITH A WARRANT.

       

      PENAL CODE 818.  In any case in which a peace officer serves upon a person a warrant of arrest for a misdemeanor offense under the Vehicle Code or under any local ordinance relating to stopping, standing, parking, or operation of a motor vehicle and where no written promise to appear has been filed and the warrant states on its face that a citation may be used in lieu of physical arrest, the peace officer may, instead of taking the person before a magistrate, prepare a notice to appear and release the person on his promise to appear, as prescribed by Sections 853.6 through 853.8 of the Penal Code. Issuance of a notice to appear and securing of a promise to appear shall be deemed a compl ian ce with the directions of the warrant, and the peace officer issuing such notice to appear and obtaining such promise to appear shall endorse on the warrant "Section 818, Penal Code, complied with" and return the warrant to the magistrate who issued it.

       

      PENAL CODE 827.1.  A person who is specified or designated in a warrant of arrest for a misdemeanor offense may be released upon the issuance of a citation, in lieu of physical arrest, unless one of the following conditions exists:
         (a) The misdemeanor cited in the warrant involves violence.
         (b) The misdemeanor cited in the warrant involves a firearm.
         (c) The misdemeanor cited in the warrant involves resisting arrest.
         (d) The misdemeanor cited in the warrant involves giving false information to a peace officer.
         (e) The person arrested is a danger to himself or herself or others due to intoxication or being under the influence of drugs or narcotics.
         (f) The person requires medical examination or medical care or was otherwise unable to care for his or her own safety.
         (g) The person has other ineligible charges pending against him or her.
         (h) There is reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be immediately endangered by the release of the person.
         (i) The person refuses to sign the notice to appear.
         (j) The person cannot provide satisfactory evidence of personal identification.
         (k) The warrant of arrest indicates that the person is not eligible to be released on a citation.
         The issuance of a citation under this section shall be undertaken in the manner set forth in Sections 853.6 to 853.8, inclusive.

       

      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=813-829

       

      PENAL CODE 853.5.  (a) Except as otherwise provided by law, in any case in which a person is arrested for an offense declared to be an infraction, the person may be released according to the procedures set forth by this chapter for the release of persons arrested for an offense declared to be a misdemeanor.  In all cases, except as specified in Sections 40302, 40303, 40305, and 40305.5 of the Vehicle Code, in which a person is arrested for an infraction, a peace officer shall only require the arrestee to present his or her driver's license or other satisfactory evidence of his or her identity for examination and to sign a written promise to appear contained in a notice to appear.  If the arrestee does not have a driver's license or other satisfactory evidence of identity in his or her possession, the officer may require the arrestee to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear.  Except for law enforcement purposes relating to the identity of the arrestee, no person or entity may sell, give away, allow the distribution of, include in a database, or create a database with, this print.  Only if the arrestee refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprint or fingerprint may the arrestee be taken into custody. (rest omitted)

       

      PENAL CODE 853.6.  (a) In any case in which a person is arrested for an offense declared to be a misdemeanor, including a violation of any city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter.  If the person is released, the officer or his or her superior shall prepare in duplicate a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court.  If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or his or her superior determines that the person should be released, the officer or his or her superior shall prepare a written notice to appear in a court.
      ...
         Nothing in this subdivision shall be construed to affect a defendant's ability to be released on bail or on his or her own recognizance.
         (b) Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate.
         (c) The place specified in the notice shall be the court of the magistrate before whom the person would be taken if the requirement of taking an arrested person before a magistrate were complied with, or shall be an officer authorized by that court to receive a deposit of bail.
         (d) The officer shall deliver one copy of the notice to appear to the arrested person, and the arrested person, in order to secure release, shall give his or her written promise to appear in court as specified in the notice by signing the duplicate notice which shall be retained by the officer, and the officer may require the arrested person, if he or she has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrestee, no person or entity may sell, give away, allow the distribution of, include in a database, or create a database with, this print.  Upon the signing of the duplicate notice, the arresting officer shall immediately release the person arrested from custody.
         (e) The officer shall, as soon as practicable, file the duplicate notice, as follows:
         (1) It shall be filed with the magistrate if the offense charged is an infraction.
         (2) It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so.
         (3) The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2).
         If the duplicate notice is filed with the prosecuting attorney, he or she, within his or her discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear.
        The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear.  However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant.
      ...
        

         (f) No warrant shall be issued for the arrest of a person who has given a written promise to appear in court, unless and until he or she has violated that promise or has failed to deposit bail, to appear for arraignment, trial, or judgment or to comply with the terms and provisions of the judgment, as required by law.
      ...

         (h) A peace officer shall use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person without a warrant pursuant to Section 836 or in which he or she has taken custody of a person pursuant to Section 847.
         (i) Whenever any person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, or the arresting officer shall indicate, on a form to be established by his or her employing law enforcement agency, which of the following was a reason for the nonrelease:
         (1) The person arrested was so intoxicated that he or she could have been a danger to himself or herself or to others.
         (2) The person arrested required medical examination or medical care or was otherwise unable to care for his or her own safety.
         (3) The person was arrested under one or more of the circumstances listed in Sections 40302 and 40303 of the Vehicle Code.
         (4) There were one or more outstanding arrest warrants for the person.
         (5) The person could not provide satisfactory evidence of personal identification.
         (6) The prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested.
         (7) There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested.
         (8) The person arrested demanded to be taken before a magistrate or refused to sign the notice to appear. (rest omitted)

       

      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=853.5-853.85
          

      And in and most cases it is "unconsciousable" in that it SWAPS your RIGHTS to PROCEDURAL & SUBSTANTIVE DUE PROCESS for a RELEASE on your OWN RECOGNIZANCE.

       

      “In the context of the enforcement of contracts generally, the "unconscionable" agreement is condemned by Civil Code section 1670.5 fn. 5 and usually involves a contractual provision which operates in a harsh and one-sided manner without any justification. That code section was enacted in 1979, but before that, California courts had "long recognized 'unconscionability' as a viable common law doctrine even in the absence of specific statutory authority. [Citations.]" (Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 81 [2 Cal.Rptr.2d 845].) [3] Unconscionability has both a "procedural" and "substantive" aspect. The former involves (1) "oppression," which refers to an inequality of bargaining power giving no meaningful choice to the weaker party or (2) the "surprise" of a contractual term hidden in a printed or complex document. (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486 [186 Cal.Rptr. 114].)

       

      " 'Substantive' unconscionability, on the other hand, refers to an overly harsh allocation of risks or costs which is not justified by the circumstances under which the contract was made. [Citation.] Presumably, both procedural and substantive unconscionability must be present before a contract or clause will be held unenforceable. However, there is a sliding scale relationship between the two concepts: the greater the degree of substantive unconscionability, the less the degree of procedural unconscionability that is required to annul the contract or clause. [Citations.]" (Carboni v. Arrospide, supra, 2 Cal.App.4th at p. 83.) [2b]"  Shaffer v. Superior Court (Simms) (1995) 33 Cal.App.4th 993

       

      http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/33/993.html

       

      And as such it could RESCINDED and thus VOIDED.

       

      CIVIL CODE 1689.  (a) A contract may be rescinded if all the parties thereto consent.
         (b) A party to a contract may rescind the contract in the following cases:
         (1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party. (rest omitted).
      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1688-1693 

       

      VOID, contracts, practice. That which has no force or effect.  

        2. Contracts, bequests or legal proceedings may be void; these will be severally considered.

        3. - 1. The invalidity of a contract may arise from many causes. 1. When the parties have no capacity to contract; as in the case of idiots, lunatics, and in some states, under their local regulations, habitual drunkards. Vide Parties to contracts, §1; 1 Hen. & Munf 69; 1 South. R. 361; 2 Hayw. R. 394; Newl. on Contr. 19; 1 Fonbl. Eq. 46; 3 Camp. 128; Long on Sales, 14; Highm. on Lunacy, 111, 112 Chit. on Contr. 29, 257.
      ...
        7. - 5. When the contract is fraudulent, it is void, for fraud vitiates everything. 1 Fonbl. Equity, 66, note Newl. on Contr. 352; and article Fraud. As to cases when a condition consists of several parts, and some are lawful and others are not, see article Condition.
      ...
        9. - 3. A writ or process is void when there was not any authority for issuing it, as where the court had no jurisdiction, In such case, the officers acting under it become trespassers, for they are required, notwithstanding it may sometimes be a difficult question of law, to decide whether the court has or has not jurisdiction. 2 Brownl. 124; 10 Co. 69; March's R. 118; 8 T. R. 424; 3 Cranch, R. 330; 4 Mass. R. 234. Vide articles Irregularity; Regular and Irregular Process. Vide, generally, 8 Com. Dig. 644; Bac. Ab. Conditions, K; Bac. Ab. Infancy, &c. I; Bac. Ab. h. t.; Dane's Ab. Index, h. t.; 3 Chit. Pr. 75; Yelv. 42, a, note 1; 1 Rawle, R. 163; Bouv. Inst Index, h. t.   BOUVIER’S LAW DICTIONARY, 1856

       

      VOIDABLE. That which has some force or effect, but which, in consequence of some inherent quality, may be legally annulled or avoided.

         2. As a familiar example, may be mentioned the case of a contract, made by an infant with an adult, which maybe avoided or confirmed by the former on his coining of age. Vide Parties, contracts.

        3. Such contracts are generally of binding force until avoided by the party having a right to annul them. Bac. Ab. Infancy, 1 3; Com. Dig. Enfant; Fonbl. Eq. b. 1, c. 2, §4, note b; 3 Burr. 1794 Nels. Ch. R. 5 5; 1 Atk. 3 5 4; Stra. 9 3 7; Perk. §12. VOIR. An old French word, which signifies the same as the modern word vrai, true. Voir dire, to speak truly, to tell the truth.  (rest omitted). BOUVIER’S LAW DICTIONARY, 1856

       

      VOID. Null; ineffectual ; nugatory; having NO legal force or binding effect; unable, in law, to support the purpose for which it was intended.

        "Void" does not always imply entire nullity; but it is, in a legal sense, subject to large qualifications in view of all the circumstances calling for its application, and the rights and interests to be affected in a given case. Brown v. Brown, 50 N. H. 538, 552.

        "Void," as used in statutes and by the courts, does not usually mean that the act or proceeding is an absolute nullity. Kearney v. Vaughan , 50 Mo. 284.

        There is this difference between the two words "void" and "voidable:" void means that an instrument or transaction is so nugatory and ineffectual that nothing can cure it; voidable, when an imperfection or defect can be cured by the act or confirmation of him who could take advantage of it. Thus, while acceptance of rent will make good a voidable lease, it will not affirm a void lease. Wharton.

        The true distinction between void and voidable acts, orders, and judgments is that the former can always be assailed in any proceeding, and the latter only in a direct proceeding. Alexander v. Nelson, 42 Ala. 402.

        The term "void," as applicable to conveyances or other agreements, has not at all times been used with technical precision, nor restricted to its peculiar and limited sense, as contradistinguished from "voidable ;" it being frequently introduced, even by legal writers and jurists, when the purpose is nothing further than to indicate that a contract was invalid, and not binding in law. But the distinction between the terms "void" and "voidable," in their application to contracts, is often one of great practical importance; and, whenever entire technical accuracy is required, the term "void" can only be properly applied to those contracts that are of no effect whatsoever, such as are a mere nullity, and incapable of confirmation or ratification. Allis v. Billings , 6 Mete. ( Mass. ) 415, 39 Am. Dec. 744.  BLACK'S LAW DICTIONARY, 2ND EDITION, page 1212.

       

      VOIDABLE. That may be avoided, or declared void; not absolutely void, or void in itself. Most of the acts of infants are voidable only, and not absolutely void. 2 Kent , Comm. 234. See VOID.  BLACK'S LAW DICTIONARY, 2ND EDITION, page 1212.

       

      In which case I would REFUSE the ticket for FRAUD, RESCIND my PROMISE TO APPEAR, DEMAND PROOF of the LEO’s and the COURT’S AUTHORITY to proceed in the matter, give them LEGAL CONSTRUCTIVE NOTICE of the LAW, allow them 10 days to RESPOND, and inform them that their FAILURE to RESPOND will be DEEMED an ADMISSION and will be used as EVIDENCE in any ensuing ACTION.

       

      "Silence activates estoppel" Carmine v. Bowen, 64 A. 932.

      "Silence can only be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading."  U.S. v. Tweel, 550 F.2d 297

       

      "Fraud destroys the validity of every thing into which it enters. It affects fatally even the most solemn judgments and decrees. Bankrupt Act, sect. 35; 1 Story's Eq., sect. 252; Freeman on Judgments, sect. 486.

       

      Whenever fraud is perpetrated by one party to the injury of another, the offender is liable. Paisley v. Freeman, 3 T. R. 51; Benton v. Pratt, 2 Wend. 385."  NUDD v. BURROWS, 91 U.S. 426 (1875)
      http://justia.us/us/91/426/case.html  

       

      And when they do NOT RESPOND in the PROPER fashion in a TIMELY MANNER, I would give them NOTICE of their DEFAULT and opportunity to CURE the DEFAULT.

       

      And I would incorporate the above EVIDENCE as EXHIBITS in any MOTION TO QUASH or other pleadings I might need to file.

       

      EXCULPATORY EVIDENCE which could be used to REBUT their many PRESUMPTIONS & INFERENCES and which would be "undisputed facts" in the record unless they were REBUTTED.

         

      Patrick in California

       

      "Just like the tip of an ICEBERG, there is often more to things than what meets the eye.  Just ask the Captain's of the TITANIC or the VALDEZ ."--PKM

       

       

      --- In No-Drivers-License@yahoogroups.com , "tthor.geo" <tthor.geo@...> wrote:

      >  

      > What IF the California Notice to Appear/Promise to Appear IS all the

      > contract that there really is? What IF the wh

      (Message over 64 KB, truncated)

    Your message has been successfully submitted and would be delivered to recipients shortly.