FAIL

1. The difference between "fail" and "refuse" ls that the latter involves an act of the will, while the former may be an act of inevitable nece ity. Taylor v. Mason, 9 Wheat. 344, 6 L. Ed. 101. See Stallings v. Thomas, 55 Ark. 326, 18 S. W. 184; Telegraph Co. v. Irvin, 27 Ind. App. 62, 59 N; E. 327; Persons v. Hight, 4 Ga. 497. · 2. A person is sa.id to "fail" when he becomes insolvent and unable to meet his obligations as they mature. Davis v. Campbell, 3 Stew. (Ala.) 321; Mayer v. Hermann, 16 Fed. Cas. 1,242. -Failing circumstance■, A person (or a corporation or institution) is said to be in· fail• ing circumstances when he is abont to fail, that is,, when he is actuallr insolvent and is acting in contemplation of giving up his busine b&- cause he is unable to carry it on. Appeal of Millard, 62 Conn. 184, '2fi At!. 658; Utley v. Smith, 24 Conn. 310, 63 Am. Dec. 163; Dodge v. Mastin (C. C.) 17 Fed·. 663.-Fail:lng of record. When an action is brought against a person wl\o alleges in his plea matter of record in bar of the· action, and avers to prove it by the record, but the plaintiff saith nul tiel record, viz., denies there is any such record, upon which the defendant has a day given him by the court to bring it in, if he fail to do it, then he is said to fail of his record, and the plaintiff is entitled to sign judgment. Termes de la Ley. FAn.. [s. 484]