Definition
To prefer carries two distinct legal meanings that appear across procedural and substantive law:
1. To bring forward or present to a court or authority. In this sense, to prefer a charge, indictment, petition, or complaint means to formally lay the matter before the appropriate tribunal — to initiate or prosecute it. "Preferring an indictment" means presenting it for consideration, not merely drafting it.
2. To give priority, advantage, or privilege to one party over others. In this sense, to prefer a creditor means to favor that creditor in payment above others when the debtor lacks sufficient assets to satisfy all claims. The act of preferring gives rise to the noun forms preference and preferential transfer, which carry independent legal weight in bankruptcy and insolvency law.
Common Language
Modern common usage (Wiktionary): To be in the habit of choosing something rather than something else; to favor; to like better. Also, to present or submit something to an authority, now usually in the phrase "to prefer charges."
Historical common usage (Webster's 1913): To bring or carry something forward before one; to offer or present for consideration, acceptance, or judgment — said especially of a request, petition, claim, or charge.
The common meaning of prefer is almost entirely about personal taste or inclination. The legal meanings are structural and procedural: they describe formal acts — filing, submitting, or prioritizing — not preferences in the casual sense. A researcher encountering "preferred" in a legal document should not read it as mere favoritism; it signals either a formal act of submission to a tribunal or a deliberate elevation of one legal claim over others.
Common Confusion
The two legal meanings of prefer are occasionally run together in older sources. An editor or compiler writing that a creditor was "preferred" may mean either that the debtor deliberately paid that creditor first (a preferential transfer) or, more loosely, that the creditor held a superior class of claim by operation of law or contract (as in preferred stock or a secured lien). These are different concepts with different legal consequences. The first implicates fraudulent conveyance and bankruptcy avoidance doctrine; the second is a matter of contract or corporate structure. Context — and the era of the source — determines which meaning applies.
Why It Matters in Research
Researchers face two distinct traps with this term.
First, the procedural meaning — to prefer a charge or indictment — is common in older criminal law sources but has nearly disappeared from modern usage. Contemporary practice uses "file," "present," or "bring" in its place. When reading nineteenth-century case reports, grand jury materials, or early criminal procedure texts, "preferring an indictment" is a standard phrase meaning the formal act of submission to the grand jury or court. Do not read it as merely expressing desire to prosecute.
Second, the priority meaning has generated extensive derivative vocabulary — preference, preferential payment, preferential transfer, preferred creditor, preferred stock — each of which has developed its own body of law. In the bankruptcy context, a preferential transfer is a term of art governed by specific statutory elements and look-back periods; it is not simply any payment a debtor chose to make. Researchers moving from the word prefer in a historical source to the modern doctrine of preferences must account for significant elaboration of the concept.
Jurisdictional variation in child custody matters adds a third dimension: when a court record or statute refers to a child's "preference," the legal weight assigned to that preference varies by state and by the child's age. The word appears in the same form across jurisdictions but carries meaningfully different consequences. Researchers using corpus materials from multiple states should not assume uniformity.
The Anderson's entry also notes the connection to election districts under the now-obsolete territorial usage, which appears in some nineteenth-century legal and political sources. This meaning is defunct and should not be imported into modern research.
Historical Dictionary Support
Black's Law Dictionary (both editions) presents the two core meanings in tandem without separating them analytically: to bring before a court, and to give priority to a creditor. The phrasing is nearly identical across editions, suggesting little perceived need to refine the definition between the first and second editions. Both editions treat the indictment context as the primary illustration of the procedural meaning.
Anderson adds the creditor-priority meaning with useful specificity — "when the debtor has not" sufficient assets — flagging the insolvency context that makes the preference meaningful. This is more analytically precise than Black's, which states the concept but does not anchor it to the insolvency condition that gives it legal consequence.
Bouvier's focuses almost entirely on the procedural meaning, citing the phrase "to prefer for costs" as a live usage and referencing Abbott's Law Dictionary for support. Bouvier's omission of the creditor-priority meaning is notable; it suggests that in the earlier period of Bouvier's compilation, the priority usage was either less prominent or handled under separate headwords (see PREFERENCE, PREFERENTIAL).
What the historical sources collectively miss is the subsequent statutory elaboration. Modern bankruptcy law — particularly the avoidance provisions — transformed "preferring a creditor" from a common-law concept into a highly structured doctrine with defined elements, time limits, and safe harbors. None of the historical dictionary entries anticipate this development, and researchers relying on them alone will find the modern doctrine unrecognizable in comparison.
Jurisdictional Note
The procedural meaning of prefer (as in preferring charges or an indictment) operates similarly across common-law jurisdictions, though modern American practice rarely uses the word in this sense. The priority meaning varies significantly: bankruptcy preference law is federal, but state fraudulent transfer statutes and common-law preference rules differ in their standards and remedies. In family law, the weight assigned to a child's stated preference in custody proceedings is governed by state statute and varies considerably.
Encyclopedia Cross-Reference
Corporate Finance — Types of Equity Securities (Common Stock, Preferred Stock) (The Law Mind Business Organizations & Corporate Law Encyclopedia)
Bankruptcy General — Avoidance Powers (Preferences, Fraudulent Transfers — Sections 544–548) (The Law Mind Business Organizations & Corporate Law Encyclopedia)
Child Custody — Role of the Child's Preference (The Law Mind Family Law Encyclopedia)