Legal Terms: Letter L-N

 
 
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L

LETTERS ROGATORY

A written instrument addressed by one court to another in a foreign jurisdiction, requesting the latter to cause to be examined, upon written interrogatories annexed, a witness, who is within the jurisdiction of the latter court. Letters rogatory are designed to accomplish the same purpose as a commission to take depositions. Letters rogatory are sent to foreign countries, as there is no 'comity of States' to rely on in such cases, and are quite common, especially in Admiralty proceedings. See DEPOSITIONS.

M

MASTER IN CHANCERY

An officer of a chancery or equity court, appointed to assist the chancellor or judge. His duties, in general, are not prescribed by statute. It is a common practice to refer causes to a master for hearing, particularly causes involving intricate accounts and requiring computations. A master is often appointed to examine witnesses, to take depositions, to inquire into and report the facts of a case to a chancellor or judge of the court, to make settlements under deeds, to discharge special acts under the direction and in behalf of the court, etc. Masters in chancery were formerly clerks in chancery, twelve in number, with the master of the rolls at their head. They were at first called preceptors, and were not called masters till the time of Edward III. The office has been abolished in England, where the duties formerly belonging to masters are discharged by judges or registrars. In most of the United States the office still exists, the officer being sometimes called a master and sometimes commissioner, as is the case in the Federal courts, with the duties already described annexed to it, subject to statutory modification in the various States.

MARSHALLING (of assets, securities, liens).

The act of directing the application or distribution of assets, securities, liens, etc., so that the rights of creditors, lienors, and others having rights in the same fund or funds or other property are protected according to the equities of the different parties in interest. The principle upon which this is done is the equitable rule that a party who is entitled to satisfaction or security out of one or more of several funds or properties which must be looked to by others for their satisfaction or security shall not be allowed to elect to satisfy or secure himself so as to exclude another who is entitled to resort to only one of the funds, when the first party can otherwise sufficiently protect himself. This rule is applied where A has a mortgage on two pieces of property, one of which is also subject to a subordinate mortgage to another party. In that case A, in the event of foreclosure, will be compelled to first exhaust that parcel of land which is otherwise unencumbered in order that the security of the other party may not be entirely destroyed; or A may be allowed to foreclose the doubly encumbered piece upon condition that he subrogate the other party to his rights in the other piece. The more common applications of the rule are to foreclosures, the settlement of decedents' estates, and the distribution of assets of insolvents or bankrupts.

MISTRIAL

An invalid or illegal trial of an action, the result of which is without legal effect on the cause of action, and which leaves the parties in the same position as if there had been no attempt to try the case. Where the prosecution of a person charged with a crime results in a mistrial, the accused may be again tried, and cannot plead the constitutional defense that he has been twice in jeopardy, as that can be true only where the proceedings against him are valid and legal.

MONTH

In law, both solar (or calendar) and lunar months are recognized. At the early common law, where the term was not otherwise defined, it was held to mean the lunar month of 28 days, except in case of commercial paper and other mercantile obligations, when, by the custom of merchants, it was deemed to mean the calendar month of 30 or 31 days. By statute in England the term month, where it occurs in statutes, must be interpreted to mean calendar month, but this does not alter the common law rule as to contracts an other transactions. In the United States generally, the term, unless otherwise defined, is usually construed to mean a calendar month. It is so defined in New York by statute. However, in the interpretation of the word where found in statutes, it seems the common law rule still prevails in some jurisdictions.

N

NEXT FRIEND


An adult person, other than a guardian ad litem, who represents in an action another person who, by reason of infancy or other disability, is not legally competent to maintain the suit in his own behalf. The practice of permitting an incompetent person to sue by his next friend originated in England, where it was first authorized by the 'Statute of Westminster' passed in the reign of Edward I. Previous to that time an action in favor of an infant or other incompetent person could only be conducted by his regularly appointed guardian. The Norman-French term prochein ami, of which 'next friend' is the English equivalent, was employed in the above statute, and continues in use in many jurisdictions today. There is very little difference between the functions of a guardian ad item and a person who sues as next friend, except that the latter usually represents a plaintiff, and in some jurisdictions the former is only appointed to represent a defendant.

A next friend is not a party to an action, but acts solely in a representative and advisory capacity. It follows, therefore, that most of the rules governing parties, as that the admissions of a party bind him, etc., do not apply to a next friend. He is, however, subject to such rules as relate to the conduct of the case. A next friend is considered as an officer of the court where he is appointed to protect the interests of an incompetent defendant. In some States where an infant is otherwise represented by a guardian, he may sue by a next friend to compel an accounting by the guardian where there is reason to believe that the latter is guilty of a breach of trust. In a few jurisdictions married women and persons of unsound mind may sue by a next friend. Usually, however, lunatics and those who are mentally incompetent are represented by committees or guardians. An action commenced by a next friend cannot be discontinued or settled without the consent of the court. A next friend only represents the incompetent during the litigation, which, however, is not considered as ended until an appeal is determined or the right to appeal has expired.

NONSUIT

The termination of an action by entry of judgment against the plaintiff upon his failure to appear or prosecute the action, or because of his inability to sustain his case at the trial, in consequence of which the action is ended without a determination of the merits. Under the early system of common-law practice a nonsuit was entered only on motion of the defendant when the plaintiff was in default in prosecuting his action, and if the latter wished to end the suit, he was obliged to resort to the procedure known as nolle prosequi or retraxit. However, in modern common-law procedure, a plaintiff is sometimes allowed to end his action by nonsuit, in the discretion of the court, and usually upon payment of costs. Under the various codes of procedure at the present time, the same result is effected by a discontinuance. Where the plaintiff fails to introduce sufficient evidence to make out a prima facie case, in many jurisdictions a nonsuit may be ordered by the court before the defendant has introduced any testimony whatever. But where the plaintiff does make out a prima facie case, even though the defendant's evidence appears to the court to disprove conclusively the truth of the testimony introduced by the plaintiff, the court cannot allow a nonsuit, against the objection of the plaintiff, as the latter is entitled to have the facts of his case determined by a jury.

A nonsuit differs from a 'dismissal" of the complaint or declaration, only in that the latter is a broader tem and may involve a determination of the merits of the action. A direction of verdict is also distinguishable from a nonsuit because it involves the merits of the controversy. It is, therefore, important whether an action is terminated by dismissal on the merits, verdict, or direction of verdict, in which cases the party against whom the court decides must appeal if he thinks the judgment erroneous; or whether a nonsuit is entered, as in the latter case the plaintiff can immediately commence a new action on the same state of facts.



 

Website: The History Box.com
Article Name: Legal Terms: Letter L-N
Researcher/Transcriber Miriam Medina

Source:

BIBLIOGRAPHY: From my Collection of Books: The New International Encyclopedia; 1902-1905 Dodd, Mead and Company-New York Total of 21 Volumes
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