Definition
A phrase of quantity limitation appearing in legal instruments — most commonly search warrants, contracts, and writs — meaning approximately but no more than five of whatever unit of measure or enumerated items the instrument specifies. The phrase combines an approximation term ("about") with a ceiling ("not exceeding"), creating a bounded range: the actual quantity may be somewhat less than five but cannot lawfully surpass five.
The construction operates in two parts. "About" introduces a margin of tolerance below the stated figure, acknowledging that precise measurement or count at the time of drafting may be impractical. "Not exceeding" operates as a hard upper limit, converting the approximate figure into a legal maximum that cannot be exceeded without rendering the instrument defective or the action unauthorized.
---
Common Confusion
The phrase should not be read as a simple synonym for "approximately five" or "roughly five." Plain use of "about five" in ordinary speech implies variance in both directions — the actual number might be four or six. In legal instruments, the addition of "not exceeding" eliminates upward variance entirely. The figure five is simultaneously a rough estimate (tolerating some shortfall) and an absolute ceiling (prohibiting any excess). Researchers encountering the phrase in search warrants in particular should treat any excess over five as a potential defect going to the warrant's validity, not merely a technical irregularity.
---
Why It Matters in Research
This phrase appears most characteristically in the warrant context, where particularity of description is constitutionally and procedurally significant. A search warrant authorizing seizure of "about and not exceeding five" items of a given kind sets both the officer's authority and the outer bound of lawful seizure. Historical courts treated excess seizure as unauthorized, making the ceiling operative rather than merely descriptive.
Researchers working in early American and English warrant materials will encounter this phrase and related constructions — Rapalje & Lawrence's entry places it alongside a cluster of similar quantity and condition phrases used in warrants and contracts, all treated as terms of art requiring judicial construction rather than lay interpretation. The entry in Rapalje & Lawrence is fragmentary in the surviving source material (the entry appears to be cut off mid-phrase), which is itself a research caution: where a historical dictionary entry is incomplete, the case citation it contains is the primary guide to the phrase's operative legal meaning.
The phrase belongs to a broader family of bounded-approximation locutions in nineteenth-century legal drafting, including "about and not exceeding one hundred gallons" (found in warrant cases involving excise or revenue searches) and similar constructions in contract and bill-of-sale language. Researchers should search for the full family of "about and not exceeding [number]" phrases when reconstructing the drafting conventions of a particular jurisdiction or period, rather than treating each instance as an isolated term.
Jurisdictional variation in how courts treated the approximation component versus the ceiling component is real but rarely explicit in the case law. Some courts focused exclusively on whether the ceiling was breached; others gave independent legal weight to whether the "about" language introduced a duty of good-faith estimation at the time of drafting. Both questions can arise in historical litigation over warrant validity or contract performance.
---
Historical Dictionary Support
Rapalje & Lawrence is the principal historical source. The entry appears in a grouped series of phrase-constructions — "being about and not exceeding," "being at one-half expense," "being indebted to each other," "being of sound wind and limb," "being surveyors" — suggesting the editors treated these as a unified class of definitional phrases requiring case-law construction rather than definitional exposition. Each entry in the cluster directs the reader to a single controlling case rather than offering an independent gloss, which reflects the editors' method: let the courts define the phrase through application.
The incompleteness of the surviving entry for this specific phrase in the available source material means the associated case citation has been lost from the extract. Researchers should treat this as a gap in secondary authority, not evidence that the phrase lacks case-law support. The parallel entries in the same cluster (particularly the "hundred gallons" warrant entry citing 97 Mass. 63 and the "being of sound wind and limb" bill-of-sale entry citing 10 Johns. (N.Y.) 484) illustrate the kind of judicial treatment courts gave to the full family of constructions and are useful analogical sources.
No equivalent entry appears in Bouvier, Black's early editions, or Abbott's Law Dictionary in the available corpus, suggesting this phrase was treated as sufficiently self-explanatory by other lexicographers or was subsumed under broader entries on warrant particularity or quantity terms.
---
Jurisdictional Note
The phrase appears in both English and American sources. American courts — particularly in New York and Massachusetts, where the Rapalje & Lawrence citations cluster — gave it operative effect as a hard ceiling in warrant and contract contexts. Researchers should not assume uniform treatment across jurisdictions without checking local authority.
---