Monday, October 13, 2008

Legal Talk (2)

Topic: Understanding Legal Terms Pre: 1901 #2


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.

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.


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. (14)

Sources Utilized to Document Information


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