A) An official who conducts routine hearings assigned by the judges, including preliminary hearings in criminal cases. B) A generic term for any judge of a Court, or anyone officially performing a judge's functions.
In Latin it is for "Great Charter," it was a document delineating a series of laws establishing the rights of English barons and major landowners and limiting the absolute authority of the King of England. It became the basis for the rights of English citizens. It was signed reluctantly by King John on June 15, 1215, at Runnymede, at a table set up in a field under a canopy surrounded by the armed gentry. The Magna Carta was confirmed by John's son, Henry III, and in turn by Henry's son, Edward I. As John Cowell would write four centuries later: "although this charter consists of not above thirty seven Charters or Lawes yet it is of such extent, as all the Law wee have, is thought in some form to depend on it." Essentially a document for the nobility, it became the basis of individual rights as a part of the English Constitution, which is generally more custom than written documents.
Mail box rule
In contract law, making a written offer or acceptance of offer valid if sent in the mail, with postage, within the time in which the offer must be accepted, unless the offer requires acceptance by personal delivery on or before the specified date. The rule may also apply to mailing payments of insurance premiums when due. However, relying on this so-called "rule" can be dangerous, since the party awaiting the acceptance or payment may cancel the offer if there is no response in hand when the time runs out.
To inflict a serious bodily injury, including mutilation or any harm which limits the victim's ability to function physically. Originally, in English common law it meant to cut off or permanently cripple a body part like an arm, leg, hand or foot. In criminal law, such serious harm becomes an "aggravated" assault, which is a felony subject to a prison term.
A) The age when a person can exercise all legal rights, including contracting and voting. It is eighteen. B) Fifty percent, plus one of votes cast.
A) To create something. B) To sign a bill of exchange, cheque, promissory note, or some other note which guarantees, promises or orders payment of money.
Make one whole
To pay or award damages sufficient to put the party who was damaged back into the position he/she would have been in without the fault of another.
A) A person who endorses a check or note over to another person before it is delivered, making the endorser obligated to pay until it is delivered. B) The person who signs a check or promissory note, which makes him/her responsible for payment.
Intentionally doing something either legally or morally wrong which one had no right to do. It always involves dishonesty, illegality or knowingly exceeding authority for improper reasons. Malfeasance is differed from "misfeasance," which is committing a wrong or error by mistake, negligence or inadvertence, but not by intentional wrongdoing.
A conscious, intentional wrongdoing either of a civil wrong like libel (false written statement about another) or a criminal act like assault or murder, with the intention of doing harm to the victim. This intention includes ill-will, hatred or total disregard for the other's well-being. Often the mean nature of the act itself implies malice, without the party saying "I did it because I was mad at him, and I hated him", which would be express malice. Malice is an element in first degree murder. In a lawsuit for defamation (libel and slander) the existence of malice may increase the judgment to include general damages. Proof of malice is absolutely necessary for a "public figure" to win a lawsuit for defamation.
A) A general evil and depraved state of mind in which the person is unconcerned for the lives of others. Thus, if a person uses a gun to hold up a bank and an innocent bystander is killed in a shoot-out with police, there is malice aforethought. B) The conscious intent to cause death or great bodily harm to another person before a person commits the crime. Such malice is a required element to prove first degree murder.
Filing a lawsuit with the intention of creating problems for the defendant such as costs, attorneys' fees, anguish, or distraction when there is no substantial basis for the suit. If the defendant in the lawsuit wins and has evidence that the suit was filed out of spite and without any legal or factual foundation, he/she may, in turn, sue for damages against the person who filed the original action. If malice is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and general damages. In recent cases, courts have ruled that an attorney who knowingly assists a client in filing a worthless lawsuit out of malice or spite may be liable for damages along with the client. The suit by the victim to recover damages for a malicious prosecution cannot be filed until the original lawsuit is decided in favor of the victim.
An act or continuing conduct of a professional which does not meet the standard of professional competence and results in provable damages to his/her client or patient. Such an error or omission may be through negligence, ignorance, or intentional wrongdoing. However, malpractice does not include the exercise of professional judgment even when the results are detrimental to the client or patient. Except in cases of extremely obvious or intentional wrongs, in order to prove malpractice there must be testimony of an expert as to the acceptable standard of care applied to the specific act or conduct which is claimed to be malpractice and testimony of the expert that the professional did not meet that standard. The defendant then can produce his/her own expert to counter that testimony. Professions which are subject to lawsuits based on claims of malpractice include lawyers, physicians, dentists, hospitals, accountants, architects, engineers and real estate brokers.
Malum in se
(mal-uhm in say) An act that is "wrong in itself", in its very nature being illegal because it violates the natural, moral or public principles of a civilized society. In criminal law it is one of the collection of crimes which are traditional and not just created by statute, which are "malum prohibitum".
(mal-uhm prohibit-uhm) In Latin it means "wrong due to being prohibited", which refers to crimes made so by statute, compared to crimes which is based on English common law and obvious violations of society's standards which are defined as malum in se. Statutory crimes include criminal violations of regulatory acts, "white collar crimes" such as improper use of insider information, issuance of stocks without a permit which are intentionally not supported by real assets and tax avoidance.
(man-dame-us) In Latin it is used for "we order", a writ (more modernly called a "writ of mandate") which orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so.
A) Order of Court of appeals to a lower Court (usually the original trial court in the case) to comply with an appeals court's ruling, such as holding a new trial, dismissing the case or releasing a prisoner whose conviction has been overturned. B) Same as the writ of mandamus, which orders a public official or public body to comply with the law. C) Any mandatory order or requirement under statute, regulation, or by a public agency.
Absolutely demanded or required.
The required inclusion of a party in a lawsuit whom the court finds is absolutely necessary to a resolution of all issues in the case.
A) Completely obvious or evident. B) A written list of goods in a shipment.
The unlawful killing of another person without premeditation or so-called "malice aforethought" (an evil intent prior to the killing). It is differed from murder (which brings greater penalties) by lack of any prior intention to kill anyone or create a deadly situation. There are two levels of manslaughter: voluntary and involuntary. Voluntary manslaughter includes killing in heat of passion or while committing a felony. Involuntary manslaughter occurs when a death is caused by a violation of a non-felony, such as reckless driving (called "vehicular manslaughter").
An estate tax deduction which is allowed a surviving spouse of half of the value of the estate of the deceased spouse. In trusts which a married couple creates, they can agree that on the death of the first to go, the amount of the property which is given to the survivor is limited to the amount which will not be subject to estate tax, thus delaying some or all estate tax until the death of the surviving spouse. Such trust provisions should be written only by an attorney and with consultation with an accountant or financial adviser.
An expression for the rights of a husband (not rights of a wife) to sexual relations with his wife and to control her operation of the household.
It is also called "admiralty law" or "the law of admiralty," the laws and regulations, including international agreements and treaties, which exclusively govern activities at sea or in any navigable waters.
An "X" which is made by a person who is illiterate or too weak to sign his/her full name. If the mark is intended as a signature to a will it should be formally witnessed (as signatures are) to make the will valid.
Marked for identification
Documents or objects which are presented during a trial before there has been testimony which confirms their authenticity and/or relevancy. Each item is given an exhibit identification letter or number and thus is marked for identification. The marked exhibits are actually introduced into evidence (made part of the official record) upon request of the lawyer offering the evidence and approval by the judge or by stipulation of both attorneys. Occasionally an exhibit marked for identification is rejected as evidence due to the judge agreeing (sustaining) with an opposing lawyer's objection such as for lack of relevancy or failure to show it is genuine or best evidence.
The specified price at which a seller of property would receive in an open market by negotiation, as distinguished from a "distress" price on a forced or foreclosure sale, or from an auction. Market value of real property is normally determined by a professional appraiser who makes comparisons to similar property sales in the area, which are often called "comparables".
The title to real property which has no encumbrances (mortgage, deed of trust, lien or claim) and which is free of any reasonable objection (excluding minor mistakes in the description or typographical errors). A Court will enforce a contract to buy and sell real estate if there is marketable title.
The joining of a male and female in matrimony by a person qualified by law to perform the ceremony (a priest, judge, or some similar official). Marriages in which the age requirements are not met can be annulled.
A) To collect the assets of the estate of a person who has died. This is a function of an executor or administrator of an estate. Sometimes the executor or administrator may ask the court to allow the sale or division of gifts in order to achieve the distribution the testator (writer of a will) desired. This is part of the marshaling process. B) In bankruptcy, to establish priorities among creditors. C) A Court official who may serve papers and act as a law enforcement officer in keeping order in court, protecting officials, making arrests or participating in court-ordered police activities. D) A law enforcement officer, who serves official documents and occasionally assists in police matters.
A) A person, supposedly with special expertise, who is appointed by a judge to investigate a problem (such as whether a parent's home is appropriate for child visitation) and report back to the judge his/her findings and recommendations. B) Employer, in the area of law known as "master and servant", which more properly should be called employer and employee.
Master and servant
The body of law, including statutes and legal decisions which are precedents, which relates to the relationship of an employer and employee.
Relevant, significant and important. In a lawsuit, "material evidence" is distinguished from totally irrelevant or of such minor importance that the court will either ignore it, rule it immaterial if objected to, or not allow lengthy testimony upon such a matter. A "material breach" of a contract is a valid excuse by the other party not to perform. However, an insignificant divergence from the terms of the contract is not a material breach.
A convincing statement is which made to induce someone to enter into a contract to which the person would not have agreed without that assertion. Thus, if the material representation proves not to be true or to be misleading, the contract can be rescinded or cancelled without liability.
A person who is possessing information about the subject matter of a lawsuit or criminal prosecution which is significant enough to affect the outcome of the case or trial. Thus, the court must make every reasonable effort to allow such a witness to testify, including a continuance (delay in a trial) to accommodate him/her if late or temporarily unavailable.
Matter of record
Anything, including testimony, evidence, rulings and sometimes arguments, which has been recorded by the Court reporter or Court clerk. It is an expression often heard in trials and legal arguments that "such and such is a matter of record" as distinguished from actions outside the court or discussions not written down or taped.
A) The age when one becomes an adult, which is eighteen for most purposes. B) The specified date when the payment of the principal amount owed under the terms of a promissory note or bill of exchange becomes due. Quite often a note states that failure to pay interest or installment payments when due "accelerates" the note, making the "maturity date" immediate if such payments are demanded and not paid.
A collection of legal truisms which are used as "rules of thumb" by both judges and lawyers. They are listed in the codified statutes, and include: "When the reason of a rule ceases, so should the rule itself".
A) A choice to act or not, or a promise of a possibility, as distinguished from "shall," which makes it imperative. B) In statutes, and sometimes in contracts, the word "may" must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative. The same careful analysis must be made of the word "shall". Non-lawyers tend to see the word "may" and think they have a choice or are excused from complying with some statutory provision or regulation.
A) To commit mayhem is to cause gross harm in an uncontrolled fashion. B) The criminal act of disabling, disfiguring or cutting off or making useless one of the members (leg, arm, hand, foot, eye) of another either intentionally or in a fight, called maiming. The serious nature of the injury makes mayhem a felony, which is called "aggravated assault".
The right of a craftsman, laborer, supplier, architect or other person who has worked upon improvements or delivered materials to a particular parcel of real estate (either as an employee of the owner or as a sub-contractor to a general contractor) to place a lien on that real property for the value of the services and/or materials if not paid. Numerous other technical laws surround mechanic's liens, including requirements of prompt written notice to the owner of the property (even before the general contractor has been tardy in making payment), limits on the amount collectable, and various time limitations to enforce the lien. Ultimate, last-resort enforcement of the mechanic's lien is accomplished by filing a lawsuit to foreclose the lien and have the property sold in order to be paid. Property owners should make sure that their general contractors pay their employees or subcontractors to avoid a mechanic's lien, since the owner could be forced to pay the debts of a general contractor even though the owner has already paid the contractor. If the worker or supplier does not sue to enforce the mechanic's lien, he/she may still sue for the debt.
Settlement of a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration, in which the third party (arbitrator) acts much like a judge in an out-of-court, less formal setting but does not actively participate in the discussion. Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation) and is often ordered by the judge in such cases. Mediation also has become more frequent in contract and civil damage cases. There are professional mediators or lawyers who do some mediation for substantial fees, but the financial cost is less than fighting the matter out in court and may achieve early settlement and an end to anxiety. However, mediation does not always result in a settlement.
A person who conducts mediation between parties is called mediator. A mediator is usually a lawyer or retired judge but can be a non-attorney specialist in the subject matter (like child custody) who tries to bring people and their disputes to early resolution through a conference. The mediator is an active participant in the discussions and attempts to work out a solution, unlike an arbitrator, who sits as a judge.
Meet and confer
A requirement of Courts that before certain types of motions and/or petitions will be heard by the judge, the lawyers (and sometimes their clients) must "meet and confer" to try to resolve the matter or at least determine the points of conflict. This has the beneficial effect of resolving many matters, reducing the time for arguments and making the lawyers and clients face up to the realities of their positions. On the other hand, it also can be a total waste of time for the parties and their attorneys. The meet and confer rule is particularly common (and useful) in domestic relations disputes over temporary support, custody, visitation and such issues which are freighted with emotion.
Meeting of the minds
The situation when two parties to an agreement (contract) both have the same understanding of the terms of the agreement. Such mutual comprehension is essential to a valid contract. It is provable by the express provisions of a written contract, without reference to any statements or hidden thoughts outside the writing.
A) A brief writing, note, summary or outline. B) A "memorandum of decision," or "memorandum opinion," is a brief statement by a judge announcing his/her ruling without detail or giving extensive reasons, which may or may not be followed by a more comprehensive written decision. Such memoranda (plural) are issued by appeals courts in language such as: "The decision below is affirmed".
(menz ray-ah) In Latin, it is used for a "guilty mind," or criminal intent in committing the act.
Mental suffering which can be fright, feelings of distress, anxiety, depression, grief and/or psychosomatic physical symptoms. It is differed from physical pain due to an injury, but it may be considered in awarding damages for physical injury due to a defendant's negligence or intentional infliction of harm. Where there is no physical injury, damages can still be awarded for mental anguish if it is reasonable to presume such would naturally flow from the incident. Examples: holding a pistol to one's head, any threat of bodily harm when it appears it could be carried out, swinging with a scythe even though the assailant missed, or witnessing injury or death to a loved one. There are also situations in which the obvious result of the alleged wrongdoing would be mental distress due to embarrassment or damage to one's reputation through libel, and therefore damages can be awarded to the distressed party. However, there are limits: in general, breach of contract judgments cannot include damages for mental anguish due to the loss of a deal or employment.
See also: competent
A term, which is rapidly going out of fashion and out of the statutes, which has been used to justify granting a divorce when the law required that some wrong had to be found in the defending spouse. In absence of actual physical cruelty (or unwillingness to discuss it) the person wanting the divorce could testify to a list of indignities ("he swore at me, he came home late, he humiliated me in front of friends, he was hateful to my mother" or similar tales told about the wife) which would be verified by a relative or a friend to satisfy the judge that the petitioning spouse would suffer mental harm if the marriage continued and proved that there were grounds for a divorce.
Emotional pain synonymous with "mental anguish".
That broad area of the law (also called commercial law), statutes, cases and customs which deal with trade, sales, buying, selling, transportation, contracts and all forms of business transactions.
A product of a high enough quality to make it fit for sale. To be merchantable an article for sale must be usable for the purpose it is made. It must be of average worth (not necessarily special) in the marketplace and must not be broken, unworkable, damaged, contaminated or flawed.
A) In corporate law, the joining together of two companies in which one company transfers all of its assets to the other, which continues to exist. In effect one corporation "swallows" the other, but the shareholders of the swallowed company receive shares of the surviving corporation. A merger is distinguished from a "consolidation," in which both companies join together to create a new corporation. B) In real property law, when an owner of an interest in property acquires a greater or lesser interest in the same property, the two interests become one. Examples: a person with a life estate is given the title to the property by inheritance, the life estate is merged with the titled interest. C) Another important form of merger occurs when a person acquires two parcels of land which were once a single lot that had been divided into two lots by a "lot split" granted by the city or county. If the minimum lot size has been increased by changes in local ordinances and the two lots are now sub-standard size, the buyer who acquires title in the two lots may find that they are "merged" into one lot and he or she has lost the right to build a house on each lot. To avoid this problem, the buyer should make sure title in each lot is obtained under a different name, i.e. husband taking one, and wife the other.
(mean, with a silent s) the middle point between two extremes. It is seldom used, except in reference to "mesne profits."
Profits which have accrued while there was a dispute over land ownership or title. If it is determined the party using the land did not have legal ownership, the true owner can sue for some or all of the profits made in the interim by the illegal tenant, which are thus called "mesne profits".
Metes and bounds
(meets and bounds) A surveyor's description of a parcel of real property, using carefully measured distances, angles and directions, which results in what is called a "legal description" of the land, as distinguished from merely a street address or parcel number. Such a metes and bounds description is required to be recorded in official county records on a subdivision map and in the deeds when the boundaries of a parcel or lot are first drawn.
Regulations which is made for governing the conduct of men and women in the armed services in relation to their military (not civilian) activities.
A description by boundaries of real property in which metal ore and/or minerals may be located.
A someone who is under legal age, which is generally eighteen, except for certain purposes such as drinking alcoholic beverages.
A) The period of life under legal age. B) In voting, a side with less than half the votes. C) A term for people who are less in number by population in a particular region.
A) The record of Courtroom proceedings, such as the start and recess of hearings and trials, names of attorneys, witnesses and rulings of the court, kept by the clerk of the court or the judge. Such court minutes are not a transcript of everything that is said, which is taken down by the court reporter if recorded at all. B) The written record of meetings, particularly of boards of directors and/or shareholders of corporations, kept by the secretary of the corporation or organization.
The wills of a husband and wife which are identical except that each leaves the same gifts to the other, and each names the other as executor.
A death due to unintentional accident without any violation of law or criminal negligence. Thus, there is no crime.
The intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purpose, particularly by a public official, a trustee of a trust, an executor or administrator of a dead person's estate or by any person with a responsibility to care for and protect another's assets (a fiduciary duty). It is a crime punishable by a prison sentence.
A lesser crime which is punishable by a fine and/or county jail time for up to one year. Misdemeanors are distinguished from felonies, which can be punished by a prison term. They are tried in the lowest local court such as municipal courts. Typical misdemeanors include: petty theft, disturbing the peace, simple assault and battery, drunk driving without injury to others, drunkenness in public, various traffic violations, public nuisances.
Management of a business, public office or other responsibility in which there are errors and an unfortunate result through mistake or carelessness, but without evil intent and/or violation of law. Misfeasance is distinguished from "malfeasance", which is intentional conduct in violation of the law.
The inclusion of parties (plaintiffs or defendants) or causes of action (legal claims) in a single lawsuit contrary to statute. Reasons for a court ruling that there is misjoinder include: a) the parties do not have the same rights to a judgment; b) they have conflicting interests; c) the situations in each claim (cause of action) are different or contradictory; or d) the defendants are not involved (even slightly) in the same transaction. In a criminal prosecution the most common cause for misjoinder is that the defendants were involved in different alleged crimes, or the charges are based on different transactions.
n. the wrong name.
Misprision of a felony
The crime of concealing another's serious crime from law enforcement officers.
The crime of mis-stating facts to obtain money, goods or benefits of another to which the accused is not entitled. Examples: a person a) falsely claims to represent a charity to obtain a donation which he/she keeps; b) says a painting is a genuine when it is a fake and thus is able to sell it for a price much greater than its true value. Misrepresentation is also called "false pretenses".
A) An error which is discovered to be incorrect at a later time. B) An error which is occurred in comprehending facts, meaning of words or the law, which causes one party or both parties to enter into a contract without understanding the obligations or results. Such a mistake can entitle one party or both parties to a rescission (cancellation) of the contract. A mistaken understanding of the law (as distinguished from facts) by one party only is usually no basis for rescission since "ignorance of the law is no excuse".
The termination of a trial before its normal conclusion because of a procedural error, statements by a witness, judge or attorney which prejudice a jury, a deadlock by a jury without reaching a verdict after lengthy deliberation (a "hung" jury), or the failure to complete a trial within the time set by the court. When such situations arise, the judge, either on his own initiative or upon the motion (request) of one of the parties will "declare a mistrial", dismiss the jury if there is one and direct that the lawsuit or criminal prosecution be set for trial again, starting from the beginning.
In criminal law, conditions or happenings which do not excuse or justify criminal conduct, but are considered out of mercy or fairness in deciding the degree of the offense the prosecutor charges or influencing reduction of the penalty upon conviction.
Mitigation of damages
The requirement that someone injured by another's negligence or breach of contract must take reasonable steps to reduce the damages, injury or cost, and to prevent them from getting worse. Thus, a person claiming to have been injured by another motorist should seek medical help and not let the problem worsen. If a tenant moves out before a lease has expired, a landlord must make reasonable attempts to re-let the property and take in some rents (which are credited against the amount remainder of the lease) to mitigate his/her loss.
An alteration in an existing Court order or judgment which is made necessary by an alteration in circumstances since the order or judgment was made or to cure an error. A motion (petition) to the court for modification is common after divorce judgments because the Courts "retain jurisdiction" over matters concerning the children which may need changes such as terms of child support and custody.
(mode-us ah-purr-and-ee or ah-purr-and-eye) In Latin, a criminal investigation term for "way of operating", which may prove the accused has a pattern of repeating the same criminal acts using the same method. Examples: a repeat offender always wore a blue ski mask and used a sawed-off shotgun, climbed up trellises to burglarize, pretended to be a telephone repairman to gain entrance or set up phoney companies to disguise a fraudulent scheme.
(moy-et-tee) Half. Generally a reference to interest in real property, moiety is seldom used today.
The crime of sexual acts with children up to the age of eighteen, including touching of private parts, exposure of genitalia, taking of pornographic pictures, rape, inducement of sexual acts with the molester or with other children and variations of these acts by pedophiles. Molestation also applies to incest by a relative with a minor family member and any unwanted sexual acts with adults short of rape.
A business or inter-related group of businesses which controls the production or sale of a product or kind of product as to control the market, including prices and distribution. Business practices, combinations and/or acquisitions which tend to create a monopoly may violate various statutes which regulate or prohibit business trusts and monopolies or prohibit restraint of trade. However, limited monopolies granted by a manufacturer to a wholesaler in a particular area are usually legal, since they are like "licenses". Public utilities such as electric, gas and water companies may also hold a monopoly in a particular geographic area since it is the only practical way to provide the public service, and they are regulated by state public utility commissions.
A tenancy in which the tenant pays monthly rent and has no lease, and the tenancy can be terminated by the landlord at any time on thirty days notice.
A) A building or other structure of historic importance, which may be recognized formally and marked by central, state or local agencies, and therefore may not be torn down or substantially altered. B) An established landmark which a surveyor uses as part of a legal description of real property.
A) An issue only of academic interest. B) Unsettled, open to argument or debatable, specifically about a legal question which has not been determined by any decision of any Court.
Law school exercise in which students argue both sides of an appeal from a fictitious lawsuit in a mock Court. There are also moot Court contests between teams from different law schools.
A) A legal question which no Court has decided, so it is still debatable or unsettled. B) An issue only of academic interest.
In a criminal trial, the reasonable belief (but falling short of absolute certainty) of jury or judge sitting without a jury that the evidence shows the defendant is guilty. Moral certainty is another way of saying "beyond a reasonable doubt". Since there is no exact measure of certainty it is always somewhat subjective and based on "reasonable" opinions of judge and/or jury.
Gross violation of standards of moral conduct. An act involving moral turpitude is considered intentionally evil, making the act a crime. The existence of moral turpitude can bring a more severe criminal charge or penalty for a criminal defendant.
A) Any suspension of activity, particularly voluntary suspension of collections of debts by a private enterprise or by government or pursuant to Court order. B) In bankruptcy, a halt to the right to collect a debt. In times of economic crisis or a natural disaster like a flood or earthquake, there may be a moratorium on foreclosures or mortgage payments until the public can get back to normal activities and earnings.
A document in which the owner pledges his/her/its title to real property to a lender as security for a loan which is described in a promissory note. Mortgage is an old English term derived from two French words "mort" and "gage" meaning "dead pledge." To be enforceable the mortgage must be signed by the owner (borrower), acknowledged before a notary public, and recorded with the Recorder of Deeds. If the owner (mortgagor) fails to make payments on the promissory note (becomes delinquent) then the lender (mortgagee) can foreclose on the mortgage to force a sale of the real property to obtain payment from the proceeds, or obtain the property itself at a court sale upon foreclosure. However, catching up on delinquent payments and paying costs of foreclosure ("curing the default") can save the property. A purchase-money mortgage is one given by a purchaser to a seller of real property as partial payment. A mortgagor may sell the property either "subject to a mortgage" in which the property is still security and the seller is still liable for payment, or the buyer "assumes the mortgage" and becomes personally responsible for payment of the loan.
The person or business who is making a loan that is secured by the real property of the person (mortgagor) who owes him/her/it money.
The person who has pledged his/her real property as security for borrowed money which is provided by the mortgagee.
A formal request which is made to a judge for an order or judgment. Motions are made in court all the time for many purposes: to continue (postpone) a trial to a later date, to get a modification of an order, for temporary child support, for a judgment, for dismissal of the opposing party's case, for a rehearing, for sanctions (payment of the moving party's costs or attorney's fees), or for dozens of other purposes. Most motions require a written petition, a written brief of legal reasons for granting the motion (often called "points and authorities"), written notice to the attorney for the opposing party and a hearing before a judge. However, during a trial or a hearing, an oral motion may be permitted.
Motion for a new trial
A request which is made by the loser for the case to be tried again on the basis that there were significant legal errors in the way the trial was conducted and/or the jury or the judge sitting without a jury obviously came to an incorrect result. This motion must be made within a few days after the judgment is formally entered and is usually heard by the same judge who presided at the trial.
Motion for a summary judgment
A written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on testimony recorded outside court, affidavits (declarations under penalty of perjury), depositions, admissions of fact and/or answers to written interrogatories, claiming that all factual and legal issues can be decided in the moving party's favor. These alleged facts are accompanied by a written legal brief (points and authorities) in support of the motion. The opposing party needs to show by affidavits, written declarations or points and authorities (written legal argument in support of the motion) that there are "triable issues of fact" and/or of law by points and authorities. If there are any triable issues the motion must be denied and the case can go to trial. Sometimes, if there are several claims (causes of action) such a motion may cause the judge to find (decide) that some causes of action can be decided under the motion, leaving fewer matters actually to be tried.
Motion for dismissal
(non-suit) Application by a defendant in a lawsuit or criminal prosecution asking the judge to rule that the plaintiff or the prosecution has not and cannot prove its case. Attorneys most often make this motion after the plaintiff or prosecutor has presented all the evidence they have, but they can make it at the end of the evidence presentation but before judgment or upon evidence being presented that proves to the judge that the defendant cannot lose. Quite often this is an oral motion, and arguments are made in the judge's chambers where the jury cannot hear. It is also sometimes called a motion for nonsuit.
Motion in limine
(lim-in-nay) In Latin it is for "threshold," a motion which is made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial.
Motion to strike
A request for a judge's order to eliminate all or a portion of the legal pleading (complaint, answer) of the opposition on any one of several grounds. It is often used in an attempt to have an entire cause of action removed ("stricken") from the court record. A motion to strike is also made orally during trial to ask the judge to order "stricken" answers by a witness in violation of rules of evidence (laws covering what is admissible in trial). Even though the jury is admonished to ignore such an answer or some comment, the jury has heard it, and "a bell once rung, cannot be unrung".
Motion to suppress
A motion (usually on behalf of a criminal defendant) to disallow certain evidence in an upcoming trial.
In criminal investigation the probable reason a person committed a crime, such as jealousy, greed, revenge or part of a theft. While evidence of a motive may be admissible at trial, proof of motive is not necessary to prove a crime.
Od-fashioned slang for one's lawyer.
The party in a lawsuit or other legal proceeding who makes a motion (application for a court order or judgment).
To make a motion in Court applying for a Court order or judgment.
A lawsuit in which either party or various causes of action (claims which are based on different legal theories) are improperly joined together in the same suit. This is more commonly called misjoinder.
Multiplicity of suits
Several actual or potential civil suits which should be joined together in one suit and one trial. It is a basic principle of law that multiplicity is to be avoided when possible, practical and fair. Example: several suits are filed by different people against the same person or entity, based on the same set of facts and the same legal issues. On motion of either party or by the judge's own determination, the judge can order the cases consolidated.
An incorporated, chartered or recognised city or town.
A lower court which usually tries criminal misdemeanors and civil lawsuits involving lesser amounts of money than district courts.
Muniment of title
Documentary evidence of title to real property. A muniment could be a deed, a decree of distribution proving inheritance, or a contract of sale.
The killing of a human being by a person, with intent, malice aforethought (prior intention to kill the particular victim or anyone who gets in the way) and with no legal excuse or authority. In those clear circumstances, this is first degree murder. By statute, a killing in which there is torture, movement of the person before the killing (kidnapping) or the death of a police officer or prison guard, or it was as an incident to another crime (as during a hold-up or rape), to be first degree murder, with or without premeditation and with malice presumed. Second degree murder is such a killing without premeditation, as in the heat of passion or in a sudden quarrel or fight. Malice in second degree murder may be implied from a death due to the reckless lack of concern for the life of others (such as firing a gun into a crowd or bashing someone with any deadly weapon). Depending on the circumstances and law, murder in the first or second degree may be chargeable to a person who did not actually kill, but was involved in a crime with a partner who actually did the killing or someone died as the result of the crime. A charge of murder requires that the victim must die within a year of the attack. Death of an unborn child who is "quick" (fetus is moving) can be murder, provided there was premeditation, malice and no legal authority. Thus, abortion is not murder under the law.
Anything in which both parties have reciprocal rights, understanding or agreement.
Wills which is made by two people (usually spouses, but could be "partners") in which each gives his/her estate to the other, or with dispositions they both agree upon. A later change by either is not invalid unless it can be proved that there was a contract in which each makes the will in the consideration for the other person making the Will.