Not meeting a goal or an expectation. A lack of success. 1. The difference between “fail” and “refuse” is that the latter involves an act of the will, while the former may be an act of inevitable necessity. 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 said 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 circumstances. A person (or a corporation or institution) is said to be in failing circumstances when he is about to fail, that is, when he is actually insolvent and is acting in contemplation of giving up his business because he is unable to carry it on. Appeal of Millard, 62 Conn. 184, 25 Atl. 658; Utley v. Smith, 24 Conn. 310, 63 Am. Dec. 163; Dodge v. Mastin (C. C.) 17 Fed. 663. Failing of record. When an action is brought against a person who 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.