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Leave: Pleading
Leave: Pleading
To give or dispose of by will. Willful departure with intent to remain away. Permission or authorization
to do something.
Leave of court is permission from the judge to take some action in a lawsuit that requires an absence or
delay. An attorney might request a leave of court in order to file an amended Pleading, a formal declarati
on of a claim, or a defense.
manifest
1) adj., adv. completely obvious or evident. 2) n. a written list of goods in a shipment.
Move
To make an application to a court for a rule or order, or to take action in any matter. The term compr
ehends all things necessary to be done by a litigant to obtain an order of the court directing the relief
sought. To propose a resolution, or recommend action in a deliberative body. To pass over; to be tran
sferred, as when the consideration of a contract is said to move from one party to the other. To occas
ion; to contribute to; to tend or lead to.
. to make a motion in court applying for a court order or judgment
Prayer
The request contained in a bill in Equity that the court will grant the process, aid, or relief that
the complainant desires.
n. the specific request for judgment, relief and/or damages at the conclusion of a complaint or petition.
Demurrer
An assertion by the defendant that although the facts alleged by the plaintiff in the complaint may be t
rue, they do not entitle the plaintiff to prevail in the lawsuit.
The pleadings of the parties to a lawsuit describe the dispute to be resolved. The plaintiff sets out the fact
s that support the claim made in the complaint, and the defendant then has an opportunity to respond in a
n answer.
A demurrer is a type of answer used in systems of Code
Pleading, established by statute to replace the earlier common-law Forms of
Action. While a demurrer admits the truth of the plaintiff's set of facts, it contends that those facts are ins
ufficient to grant the complaint in favor of the plaintiff. A demurrer may further contend that the complaint
does not set forth enough facts to justify legal relief or it may introduce additional facts that defeat the leg
al effectiveness of the plaintiff's complaint. A demurrer asserts that, even if the plaintiff's facts are correct,
the defendant should not have to answer them or proceed with the case.
Plaintiff
The party who sues in a civil action; a complainant; the prosecution—that is, a state or the
United States representing the people—in a criminal case.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All
rights reserved.
plaintiff
n. the party who initiates a lawsuit by filing a complaint with the clerk of the court against the de
fendant(s) demanding damages, performance and/or court determination of rights. (See: complai
nt, defendant, petitioner)
Defendant
The person defending or denying; the party against whom relief or recovery is sought in an a
ction or suit, or the accused in a criminal case.
In every legal action, whether civil or criminal, there are two sides. The person suing is the plaint
iff and the person against whom the suit is brought is the defendant. In some instances, there may
be more than one plaintiff or defendant.
If an individual is being sued by his or her neighbor for Trespass, then he or she is the defendant
in a civil suit. The person being accused of murder by the state in a Homicide case is the defenda
nt in a criminal action.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All
rights reserved.
defendant
n. 1) the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution.
In some types of cases (such as divorce) a defendant may be called a respondent. (See: plaintiff)
sus·pect
(sə-spĕkt′)
v. sus·pect·ed, sus·pect·ing, sus·pects
v.tr.
1. To consider (something) to be true or probable on little or no evidence: I suspect they are very disapp
ointed.
2. To have doubts about (something); distrust: I suspect his motives.
3. To consider (a person) guilty without proof: The police suspect her of murder.
v.intr.
Respondent
In Equity practice, the party who answers a bill or other proceeding in equity. The party aga
inst whom an appeal or motion, an application for a court order, is instituted and who is req
uired to answer in order to protect his or her interests.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All
rights reserved.
respondent
n. 1) the party who is required to answer a petition for a court order or writ requiring the respond
ent to take some action, halt an activity or obey a court's direction. In such matters the moving pa
rty (the one filing the petition) is usually called the "petitioner." Thus, the respondent is equivale
nt to a defendant in a lawsuit, but the potential result is a court order and not money damages. 2)
on an appeal, the party who must respond to an appeal by the losing party in the trial court, is call
ed "appellant" in the appeals court.
Accused
The generic name for the defendant in a criminal case. A person becomes accused within the
meaning of a guarantee of Speedy
Trial only at the point at which either formal indictment or information has been returned ag
ainst him or her, or when he or she becomes subject to actual restraints on liberty imposed b
y arrest, whichever occurs first.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All
rights reserved.
accused
n. a person charged with a crime.
Criminal
Pertaining to, or involving, crimes or the administration of penal justice. An individual who h
as been found guilty of the commission of conduct that causes social harm and that is punish
able by law; a person who has committed a crime.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All
rights reserved.
criminal
1) n. a popular term for anyone who has committed a crime, whether convicted of the offense or
not. More properly it should apply only to those actually convicted of a crime. Repeat offenders
are sometimes called habitual criminals. 2) adj. certain acts or people involved in or relating to a
crime. Examples of uses include "criminal taking," "criminal conspiracy," a "criminal gang." (Se
e: convict, felon, habitual criminal)
certiorari
A writ that a superior appellate court issues in its discretion to an inferior court, ordering it to produce
a certified record of a particular case it has tried, in order to determine whether any irregularities or er
rors occurred that justify review of the case. A device by which the Supreme Court of the United
States exercises its discretion in selecting the cases it will review.
Certiorari is an extraordinary prerogative writ granted in cases that otherwise would not be entitled to revi
ew. A petition for certiorari is made to a superior appellate court, which may exercise its discretion in acce
pting a case for review, while an appeal of a case from a lower court to an intermediate appellate court, or
from an intermediate appellate court to a superior appellate court, is regulated by statute. Appellate revie
w of a case that is granted by the issuance of certiorari is sometimes called an appeal, although such revi
ew is at the discretion of the appellate court.
Quo Warranto
A legal proceeding during which an individual's right to hold an office or governmental privilege is chall
enged.
In old English practice, the writ of quo warranto—an order issued by authority of the king—was one of the
most ancient and important writs. It has not, however, been used for centuries, since the procedure and e
ffect of the judgment were so impractical.
Currently the former procedure has been replaced by an information in the nature of a quo warranto, an
extraordinary remedy by which a prosecuting attorney, who represents the public at large, challenges so
meone who has usurped a public office or someone who, through abuse or neglect, has forfeited an office
to which she was entitled. In spite of the fact that the remedy of quo warranto is pursued by a prosecuting
attorney in a majority of jurisdictions, it is ordinarily regarded as a civil rather than criminal action. Quo wa
rranto is often the only proper legal remedy; however, the legislature can enact legislation or provide othe
r forms of relief.
Mandamus
[Latin, We comand.] A writ or order that is issued from a court of superior jurisdiction that commands a
n inferior tribunal, corporation, Municipal
Corporation, or individual to perform, or refrain from performing, a particular act, the performance or o
mission of which is required by law as an obligation.
A writ or order of mandamus is an extraordinary court order because it is made without the benefit of full j
udicial process, or before a case has concluded. It may be issued by a court at any time that it is appropri
ate, but it is usually issued in a case that has already begun.
Generally, the decisions of a lower-court made in the course of a continuing case will not be reviewed by
higher courts until there is a final judgment in the case. On the federal level, for example, 28 U.S.C.A. § 1
291 provides that appellate review of lower-court decisions should be postponed until after a final judgme
nt has been made in the lower court. A writ of mandamus offers one exception to this rule. If a party to a c
ase is dissatisfied with some decision of the trial court, the party may appeal the decision to a higher court
with a petition for a writ of mandamus before the trial proceeds. The order will be issued only in exception
al circumstances.
Arraignment
A criminal proceeding at which the defendant is officially called before a court of competent jurisdiction
, informed of the offense charged in the complaint, information, indictment, or other charging documen
t, and asked to enter a plea of guilty, not guilty, or as otherwise permitted by law. Depending on the j
urisdiction, arraignment may also be the proceeding at which the court determines whether to set bail
for the defendant or release the defendant on his or her own recognizance.
Although the initial appearance of the arrested person before a magistrate is sometimes referred to as an
arraignment, it is not a true arraignment, which only comes after the defendant has been both arrested an
d formally charged. In all but extremely rare cases, arraignment also takes place before any suppression
hearings and the trial itself. The interests at issue in an arraignment are the defendant's right to know of t
he charges against him or her and the defendant's right to have adequate information from which to prep
are a defense. The state also has an interest in having the defendant make a plea so it can prepare accor
dingly.
Information
The formal accusation of a criminal offense made by a public official; the sworn, written accusation of
a crime.
An information is tantamount to an indictment in that it is a sworn written statement which charges that a
particular individual has done some criminal act or is guilty of some criminal omission. The distinguishing
characteristic between an information and an indictment is that an indictment is presented by a Grand
Jury, whereas an information is presented by a duly authorized public official.
The purpose of an information is to inform the accused of the charge against him, so that the accused will
have an opportunity to prepare a defense.
information
n. an accusation or criminal charge brought by the public prosecutor (District Attorney) without a grand jur
y indictment. This "information" must state the alleged crimes in writing and must be delivered to the defe
ndant at the first court appearance (arraignment). If the accusation is for a felony, there must be a prelimi
nary hearing within a short period (such as five days) in which the prosecution is required to present enou
gh evidence to convince the judge holding the hearing that the crime or crimes charged were committed a
nd the defendant is likely to have committed them. If the judge becomes convinced, the defendant must f
ace trial, and if the judge does not, the case against the defendant is dismissed. Sometimes it is a mixed
bag, in that some of the charges in the information are sufficient for trial and the case is sent (remanded) t
o the appropriate court, and some are dismissed. (See: grand jury, indictment, charge, preliminary
hearing, accusation, felony)
execution
The carrying out of some act or course of conduct to its completion. In Criminal
Law, the carrying out of a death sentence.
The process whereby an official, usually a sheriff, is directed by an appropriate judicial writ to seize an
d sell as much of a debtor's nonexempt property as is necessary to satisfy a court's monetary judgme
nt.
With respect to contracts, the performance of all acts necessary to render a contract complete as an i
nstrument, which conveys the concept that nothing remains to be done to make a complete and effect
ive contract.
With regard to seizures of property, executions are authorized in any action or proceeding in which a mon
etary judgment is recoverable and in any other action or proceeding when authorized by statute. For exa
mple, the victim of a motor vehicle accident may institute a civil lawsuit seeking damages from another pa
rty. If the plaintiff wins the lawsuit and is awarded money from the defendant as a part of the verdict, the c
ourt may authorize an execution process to pay the debt to the plaintiff.
Carnal Knowledge
Copulation; the act of a man having sexual relations with a woman.
Penetration is an essential element of sexual intercourse, and there is carnal knowledge if even th
e slightest penetration of the female by the male organ takes place. It is not required that the hym
en be ruptured or the vagina entered.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All
rights reserved.
carnal knowledge
n. from Latin carnalis for "fleshly:" sexual intercourse between a male and female in which there
is at least some slight penetration of the woman's vagina by the man's penis. It is legally significa
nt in that it is a necessary legal characteristic or element of rape, child molestation, or consensual
sexual relations with a girl below the age of consent ("statutory rape"). Age of consent varies fro
m 14 to 18, depending upon the state.
LEGITIME, civil law. That portion of a parent's estate of which he cannot disinherit his children, without a l
egal cause. The civil code of Louisiana declares that donations inter vivos or mortis causa cannot exceed
two-thirds of the property of the disposer if he leaves at his decease a legitimate child; one half if he leave
s two children; and one-third if he leaves three or a greater number. Under the name of children are inclu
ded descendants of whatever degree they may be; it must be understood that they are only counted for th
e child they represent. Civil. Code of Lo. art. 1480.
Succession
The transfer of title to property under the law of Descent and
Distribution. The transfer of legal or official powers from an individual who formerly held th
em to another who undertakes current responsibilities to execute those powers.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All
rights reserved.
succession
n. the statutory rules of inheritance of a dead person's estate when the property is not given by th
e terms of a will, also called laws of "descent and distribution." (See: descent and
distribution, inheritance)
prosecution
n. 1) in criminal law, the government attorney charging and trying the case against a person accused of a
crime. 2) a common term for the government's side in a criminal case, as in "the prosecution will present f
ive witnesses" or "the prosecution rests" (completed its case). (See: prosecute, prosecutor)
Order
Direction of a court or judge normally made or entered in writing, and not included in a judgment, whic
h determines some point or directs some step in the proceedings.
The decision of a court or judge is made in the form of an order. A court may issue an order after a motio
n of a party requesting the order, or the court itself may issue an order on its own discretion. For example,
courts routinely issue scheduling orders, which set the timetable and procedure for managing a civil lawsu
it. More substantive orders, however, typically are made following a motion by one of the parties.
A motion is an application for an order. The granting or denying of a motion is a matter of judicial discretio
n. When a motion is granted, the moving party (the party who requests the motion) is ordinarily limited to t
he relief requested in the application. Although no particular form is required, a court order granting a moti
on should be sufficiently explicit to enable the parties to do whatever is directed. Though a court is not obl
igated to issue an opinion, in most cases a party is entitled to have the reasons for the decision of the cou
rt stated in the order. The order must be consistent with the relief requested in the motion, and it should s
et forth any conditions on which relief is awarded.
Lucid interval
Also found in: Dictionary, Thesaurus, Medical, Encyclopedia, Wikipedia.
LUCID INTERVAL, med. jur. That space of time between two fits of insanity, during which a person non c
ompos mentis is completely restored to the perfect enjoyment of reason upon every subject upon which t
he mind was previously cognizant. Shelf. on Lun. 70; Male's Elem. of Forensic Medicine, 227; and see Dr.
Haslam on Madness, 46; Reid's Essays on Hypochondriasis, 317 Willis on Mental Derangement, 151.
2. To ascertain whether a partial restoration to sanity is a lucid interval, we must consider the nature of
the interval and its duration. 1st. Of its nature.: "It must not," says D'Aguesseau, "be a superficial tranquilli
ty, a shadow of repose, but on the contrary, a profound tranquillity, a real repose; it must not be a mere ra
y of reason, which only makes its absence more apparent when it is gone, not a flash of lightning, which p
ierces through the darkness only to render it more gloomy and dismal, not a glimmering which unites nigh
t to the day; but a perfect light, a lively and continued lustre, a full and entire day, interposed between two
separate nights of the fury which precedes and follows it; and to use another image, it is not a deceitful an
d faithless stillness, which follows or forebodes a storm, but a sure and steady tranquillity for a time, a real
calm, a perfect serenity; without looking for so many metaphors to represent an idea, it must not be a mer
e diminution, a remission of the complaint, but a kind of temporary cure, an intermission so clearly marke
d, as in every respect to resemble the restoration of health." 2d, Of its duration. "As it is impossible," he c
ontinues, "to judge in a moment of the qualities of an interval, it is requisite that there should be a sufficie
nt length of time for giving a perfect assurance of the temporary reestablishment of reason, which it is not
possible to define in general, and which depends upon the different kinds of fury, but it is certain there mu
st be a time, and a considerable time." 2 Evan's Poth. on Oblig. 668, 669.
Statute
An act of a legislature that declares, proscribes, or commands something; a specific law, expressed in
writing.
A statute is a written law passed by a legislature on the state or federal level. Statutes set forth general pr
opositions of law that courts apply to specific situations. A statute may forbid a certain act, direct a certain
act, make a declaration, or set forth governmental mechanisms to aid society.
A statute begins as a bill proposed or sponsored by a legislator. If the bill survives the legislative committe
e process and is approved by both houses of the legislature, the bill becomes law when it is signed by the
executive officer (the president on the federal level or the governor on the state level). When a bill becom
es law, the various provisions in the bill are called statutes. The term statute signifies the elevation of a bil
l from legislative proposal to law. State and federal statutes are compiled in statutory codes that group the
statutes by subject. These codes are published in book form and are available at law libraries.
Bench
A forum of justice comprised of the judge or judges of a court. The seat of the court occupie
d by the judges.
The bench is used to refer to a group of judges as a collective whole. It is a tribunal or place whe
re justice is administered. To appear before the full bench means to appear before the entire grou
p of judges of the court.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All
rights reserved.
bench
n. 1) general term for all judges, as in "the bench," or for the particular judge or panel of judges,
as in an order coming from the "bench." 2) the large, usually long and wide desk raised above the
level of the rest of the courtroom, at which the judge or panel of judges sit. (See: judge, court, w
itness stand, sidebar, approach the bench)
Default
An omission; a failure to do that which is anticipated, expected, or required in a given situation.
Default is distinguishable from Negligence in that it does not involve carelessness or imprudence with res
pect to the discharge of a duty or obligation but rather the intentional omission or nonperformance of a dut
y.
To default on a debt is to fail to pay it upon its due date. Default in contract law implies failure to perform
a contractual obligation.
A default judgment is one that may be entered against a party in a lawsuit for failure to comply with a proc
edural step in the suit, such as failure to file an answer to a complaint or failure to file a paper on time. A d
efault judgment is not one that goes to the merits of a lawsuit but is procedural in nature.
default
1) n. failure to respond to a summons and complaint served on a party in the time required by law. If a leg
al answer or other response is not filed, the suing party (plaintiff) can request a default be entered in the r
ecord, which terminates the rights of the defaulting party to defend the case. 2) the failure to make a pay
ment when due, which can lead to a notice of default and the start of foreclosure proceedings if the debt i
s secured by a mortgage or deed of trust. 2) v. to fail to file an answer or other response to a summons a
nd complaint, or fail to make a payment when due. (See: default judgment)
Recall
The right or procedure by which a public official may be removed from a position by a vote of the peo
ple prior to the end of the term of office.
Recall is the retiring of an elected officer by a vote of the electorate. Some state constitutions prescribe th
e procedure that must be followed in a recall—for example, requiring the filing of a petition containing the
signatures of a specific number of qualified voters.
Offense
A breach of law; a crime.
An offense may consist of a felony or a misdemeanor. The term is used to indicate a violation of
public rights as opposed to private ones. For example, murder is an offense whereas LIBEL is not.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All
rights reserved.
offense
n. a crime or punishable violation of law of any type or magnitude. (See: crime)