N:
NAIL, A measure of length, equal to two inches and a quarter.
Vide Measure.
NAKED. This word is used in a metaphorical sense to denote that
a thing is not complete, and for want of some quality it is
either without power, or it possesses a limited power. A naked
contract, is one made without consideration, and, for that
reason, it is void; a naked authority, is one given without any
right in the agent, and wholly for the benefit of the principal.
2 Bouv. Inst. n. 1302. See Nudum Pactum.
NAME. One or more words used to distinguish a particular
individual, as Socrates, Benjamin Franklin.
2. The Greeks, as is well known, bore only one name, and it was
one of the especial rights of a father to choose the names for
hi's children and to alter them if he pleased. It was customary
to give to the eldest son the name of the grandfather on his
father's side. The day on which children received their names was
the tenth after their birth. The tenth day, called 'denate,' was
a festive day, and friends and relatives were invited to take
part in a sacrifice and a repast. If in a court of justice proofs
could be adduced that a father had held the denate, it was
sufficient evidence that be had recognized the child as his own.
Smith's Diet. of Greek and Rom. Antiq. h. v.
3. Among the Romans, the division into races, and the
subdivision of races into families, caused a great multiplicity
of names. They had first the pronomen, which was proper to the
person; then the nomen, belonging to his race; a surname or
cognomen, designating the family; and sometimes an agnomen,
which indicated the branch of that family in which the author has
become distinguished. Thus, for example, Publius Cornelius Scipio
Africanus; Publius is the pronomen; Cornelius, the nomen,
designating the name of the race Cornelia; Scipio, the cognomen,
or surname of the family; and Africanus, the agnomen, which
indicated his exploits.
4. Names are divided into Christian names, as, Benjamin, and
surnames, as, Franklin.
5. No man can have more than one Christian name; 1 Ld. Raym.
562; Bac. Ab. Misnomer, A; though two or more names usually ke*
t separate, as John and Peter, may undoubtedly be compounded, so
as to form, in contemplation of law, but one. 5 T. R. 195. A
letter put between the Christian and surname, as an abbreviation
of a part of the Christian name, as, John B. Peterson, is no part
of either. 4 Watts' R. 329; 5 John. R. 84; 14 Pet. R. 322; 3
Pet. R. 7; 2 Cowen. 463; Co. Litt. 3 a; 1 Ld. Raym. 562; ,
Vin. Ab. Misnomer, C 6, pl. 5 and 6: Com. Dig. Indictment, G 1,
note u; Willes, R. 654; Bac. Abr. Misnomer and Addition; 3
Chit. Pr. 164 to 173; 1 Young, R. 602. But see 7 Watts & Serg.
406.
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5. In general a corporation must contract and sue and be sued
by its corporate name; 8 Jobn. R. 295; 14 John. R. 238; 19
John. R. 300; 4 Rand. R. 359; yet a slight alteration in
stating the name is unimportant, if there be no possibility of
mistaking the identity of the corporation suing. 12 L. R. 444.
6. It sometimes happens that two different sets of partners
carry on business in the same social name, and that one of the
partners is a member of both firms. When there is a confusion in
this respect, the partners of one firm may, in some cases, be
made responsible for the debts of another. Baker v. Charlton,
Peake's N. P. Cas. 80; 3 Mart. N. S. 39; 7 East. 210; 2 Bouv.
Inst. n. 1477.
7. It is said that in devises if the name be mistaken, if it
appear the testator meant a particular corporation, the devise
will be good; a devise to " the inhabitants of the south
parish," may be enjoyed by the inhabitants of the first parish. 3
Pick. R. 232; 6 S. & R. 11; see also Hob. 33; 6 Co. 65; 2
Cowen, R, 778.
8. As to names which have the same sound, see Bac. Ab.
Misnomer, A; 7 Serg & Rawle, 479; Hammond's Analysis of
Pleading, 89; 10 East. R. 83; and article Idem Sonans.
9. As to the effect of using those which have the same
derivation, see 2 Roll. Ab. 135; 1 W. C. C. R. 285; 1 Chit. Cr.
Law 108. For the effect of changing one name, see 1 Rop. Leg.
102; 3 M. & S. 453 Com. Dig. G 1, note x.
10. As to the omission or mistake of the name of a legatee, see
1 Rop. Leg. 132, 147; 1 Supp. to Ves. Jr. 81, 82; 6 Ves. 42; 1
P. Wms. 425; Jacob's R. 464. As to the effect of mistakes in the
names of persons in pleading, see Steph. Pl. 319. Vide,
generally, 13 Vin. Ab. 13; 15 Vin. Ab. 595; Dane's Ab. Index,
h. t.; Roper on Leg. Index, b. t; 8 Com: Dig., 814; 3 Mis. R.
144; 4 McCord, 487; 5 Halst. 230; 3 Mis. R. 227; 1 Pick. 388;
Merl. Rep. mot Nom; and article Misnomer.
11. When a person uses a name in making a contract under seal,
he will not be permitted to say that it is not his name; as, if
he sign and seal a bond " A and B," (being his own and his
partner's name,) and he had no authority from bis partner to make
such a deed, he cannot deny that bis name is A. & B. 1 Raym. 2;
1 Salk. 214. And if a man describes himself in the body of a deed
by the name of James and signs it John, he cannot, on being sued
by the latter name, plead that his name is James. 3 Taunt. 505;
Cro. Eliz. 897, n. a. Vide 3 P. & D. 271; 11 Ad. & L. 594.
NAMES OF SHIPS. The act of congress of December 31, 1792,
concerning the registering and recording of ships or vessels,
provides,
§3. That every ship or vessel, hereafter to be registered,
(except as is hereinafter provided,) shall be registered by the
collector of the district in which shall be comprehended the port
to which such ship or vessel shall belong at the time of her
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registry, which port shall be deemed to be that at or nearest to
which the owner, if there be but one, or, if more than one, the
husband, or acting and managing owner of such ship or vessel,
usually resides. And the name of the said ship or vessel, and of
the port to which she shall so belong, shall be painted on her
stern, on a black ground, in white letters, of not less than
three inches in length. And if any ship or vessel of the United
States shall be found without having her name, and the name of
the port to which she belongs, painted in manner aforesaid, the
owner or owners shall forfeit fifty dollars; one half to the
person, giving the information thereof, the other half to the use
of the United States. 1 Story's L. U. S. 269.
2. And by the act of February 18, 1793, it is directed,
§11. That every licensed ship or vessel shall have her name,
and the port to which she belongs, painted on her stern, in the
manner as is provided for registered ships or vessels; and if
any licensed ship or vessel be found without such painting, the
owner or owners thereof shall pay twenty dollars. 1 Story's L. U.
S. 290.
3. By a resolution of congress, approved, March. 3, 1819, it is
resolved, that all the ships of the navy of the United States,
now building, or hereafter to be built, shall be named by the
secretary of the navy, under the direction of the president of
the United States, according to the following rule, to wit:
Those of the first class, shall be called after the states of
this Union those of the second class, after the rivers and those
of the third class, after the principal cities and towns; taking
care that no two vessels in the navy shall bear the same name. 3
Story's L. U. S. 1757.
4. When a ship is pleaged, as in the contract of bottomry, it
is indispensable that its name should be properly stated; when
it is merely the place in which the pledge is to be found, as in
respondentia, it should also be stated, but a mistake in this
case would not be fatal. 2 Bouv. Inst. n. 1255.
NAMIUM. An old word which signifies the taking or distraining
another person's movable goods; 2 Inst. 140; 3 Bl. Com. 149 a
distress. Dalr. Feud. Pr. 113.
NARR, pleading. An abbreviation of the word narratio; a
declaration in the cause.
NARRATOR. A pleader who draws narrs serviens narrator, a
sergeant at law. Fleta, 1. 2, c. 37. Obsolete.
NARROW SEAS, English law. Those seas which adjoin the coast of
England. Bac. Ab. Prerogative, B 3.
NATALE. The state of condition of a man acquired by birth.
NATIONAL or PUBLIC DOMAIN. All the property which belongs to
the state is comprehended under the name of national or public
domain.
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2. Care must be taken not to confound the public or national
domain, with the national finances, or the public revenue, as
taxes, imposts, contributions, duties, and the like, which are
not considered as property, and are essentially attached to the
sovereignty. Vide Domain; Eminent Domain.
NATIONALITY. The state of a person in relation to the nation in
which he was
born.
2. A man retains his nationality of origin during bis minority,
but, as in the case of his domicil of origin, he may change his
nationality upon attaining full age; he cannot, however,
renounce his allegiance without permission of the government. See
Citizen; Domicil; Expatriation; Naturalization; Foelix, Du
Dr. Intern. prive, n. 26; 8 Cranch, 263; 8 Cranch, 253; Chit.
Law of Nat. 31 2 Gall. 485; 1 Gall. 545.
NATIONS. Nations or states are independent bodies politic;
societies of men united together for the purpose of promoting
their mutual safety and advantage by the joint efforts of their
combined strength.
2. But every combination of men who govern themselves,
independently of all others, will not be considered a nation; a
body of pirates, for example, who govern themselves, are not a
nation. To constitute a nation another ingredient is required.
The body thus formed must respect other nations in general, and
each of their members in particular. Such a society has her
affairs and her interests; she deliberates and takes resolutions
in common; thus becoming a moral person who possesses an
understanding and will peculiar to herself, and is susceptible of
obligations and rights. Vattel, Prelim. §1, 2; 5 Pet. S. C. R.
52.
3. It belongs to the government to declare whether they will
consider a colony which has thrown off the yoke of the mother
country as an independent state; and until the government have
decided on the question, courts of justice are bound to consider
the ancient state of things as remaining unchanged. 1 Johns. Ch.
R. 543; 13 John. 141, 561; see 5 Pet. S. C. R. 1; 1 Kent, Com
21; and Body Politic; State.
NATIVES. All persons born within the jurisdiction of the United
States, are considered as natives.
2. Natives will be classed into those born before the
declaration of our independence, and those born since.
3. - 1. All persons, without regard to the place of their
birth, who were born before the declaration of independence, who
were in the country at the time it was made, and who yielded a
deliberate assent to it, either express or implied, as by
remaining in the country, are considered as natives. Those
persons who were born within the colonies, and before the
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declaration of independence, removed into another part of the
British dominions, and did not return prior to the peace, would
not probably be considered natives, but aliens.
4. - 2. Persons born within the United States, since the
Revolution, may be classed into those who are citizens, and those
who are not.
5. - 1st. Natives who are citizens are the children of
citizens, and of aliens who at the time of their birth were
residing within the United States.
6 The act to establish an uniform rule of naturalization,
approved April 14, 1802, §4, provides that the children of
persons who now are, or have been citizens of the United States,
shall, though born out of the limits and jurisdiction of the
United States, be considered as citizens of the United States"
But, the right of citizenship shall not descend to persons whose
fathers have never resided in the United States.
7. - 2d. Natives who are not citizens are, first, the children
of ambassadors, or other foreign ministers, who, although born
here, are subjects or citizens of the government of their
respective fathers. Secondly, Indians, in general, are not
citizens. Thirdly, negroes, or descendants of the African race,
in general, have no power to vote, and are not eligible to
office.
8. Native male citizens, who have not lost their political
rights, after attaining the age required by law, may vote for all
kinds of officers, and be elected to any office for which they
are legally qualified.
9. The constitution of the United States declares that no
person, except a natural born citizen, or a citizen of the United
States at the time of the adoption of this constitution, shall be
eligible to the office of president or vice-president of the
United States. Vide, generally, 2 Cranch, 280; 4 Cranch, 209; 1
Dal. 53; 20 John. 213; 2 Mass. 236, 244, note; 2 Pick. 394,
n.; 2 Kent, 35.
NATURAL AFFECTION. The affection which a husband, a father, a
brother, or other near relative, naturally feels towards those
who are so nearly allied to him, sometimes supplies the place of
a valuable consideration in contracts; and natural affection is
a good consideration in a deed For example, if a father should
covenant without any other consideration to stand seised to the
use of his child, the naming him to be of kin implies the
consideration of natural affection, whereupon such use will
arise. Carth. 138 Dane's Ab. Index, h. t.
NATURAL CHILDREN. In the phraseology of the English or American
law, natural children are children born out of wedlock, or
bastards, and are distinguished from legitimate children; but in
the language of the civil law, natural are distinguished from
adoptive children, that is, they are the children of the parents
spoken of, by natural procreation. See Inst. lib. 3, tit. 1, §2.
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2. In Louisiana, illegitimate children who have been
acknowledged by their father, are called natural children; and
those whose fathers are unknown are contradistinguished by the
appellation of bastards. Civ. Code of Lo. art. 220. The
acknowledgment of an illegitimate child shall be made by a
declaration executed before a notary public, in the presenee of
two witnesses, whenever it shall not have been made in the
registering of the birth or baptism of such child. Id. art. 221.
Such acknowledgment shall not be made in favor of the children
produced by an incestuous or adulterous connexion. Id. art. 222.
3. Fathers and mothers owe alimony to their natural children,
when they are in need. Id. art. 256, 913. In some cases natural
children are entitled to the legal succession, of their natural
fathers or mothers. Id. art. 911 to 927.
4. Natural children owe alimony to their father or mother, if
they are in need, and if they themselves have the means of
providing it. Id. art. 256.
5. The father is of right the tutor of his natural children
acknowledged by him; the mother is of right the tutrix of her
natural child not acknowledged by the father. The natural child,
acknowledged by both, has for tutor, first the father; in
default of him, the mother. Id. art. 274. See 1 Bouv. Inst. n.
319, et seq.
NATURAL EQUITY. That which is founded in natural justice, in
honesty and right, and which arises ex aequo et bono. It
corresponds precisely with the definition of justice or natural
law, which is a constant and perpetual. will to give to every man
what is his. This kind of equity embraces so wide a range, that
human tribunals have never attempted to enforce it. Every code of
laws has left many matters of natural justice or equity wholly
unprovided for, from the difficulty of framing general rules to
meet them, from the almost impossibility of enforcing them, and
from the doubtful nature of the policy of attempting to give a
legal sanction to duties of imperfect obligation, such as
charity, gratitude, or kindness. 4 Bouv. Inst. n. 3720.
NATURAL OBLIGATION, Civil law. One which in honor and
conscience binds the person who has contracted it, but which
cannot be enforeed in a court of justice. Poth. n. 173, and n.
191. See Obligation.
NATURAL PRESUMPTIONS, evidence. Presumptions of fact; those
which depend upon their own form and efficacy in generating
belief or conviction in the mind, as derived from those
connexions which are pointed out by experience; they are
independent of any artificial connexions, and differ from mere
presumptions of law in this essential respect, that the latter
depend on and are a branch of th& particular system of
jurisprudence to which they belong; but mere natural
presumptions are derived wholly by means of the common experience
of mankind, without the aid or control of any particular rule of
law, but simply from the course of nature and the habits of
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society. These presumptions fall within the exclusive province of
the jury, who are to pass upon the facts. 3 Bouv. Inst. n. 3064;
Greenleaf on Ev. §44.
NATURAL DAY. That space of time included between the rising and
the setting of the sun. See Day.
NATURAL FOOL. An idiot; one born without the reasoning powers,
or a capacity to acquire them.
NATURAL FRUITS. The natural production of trees, bushes, and
other plants, for the use of men and animals, and for the
reproduction of such trees, bushes or plants.
2. This expression is used in contradistinction to artificial
or figurative fruits; for example, apples, peaches and pears are
natural fruits; interest is the fruit of money, and this is
artificial.
NATURALIZATION. The act by which an alien is made a citizen of
the United States of America.
2. The Constitution of the United States, art. 1, s. 8, vests
in congress the power " to establish an uniform rule of
naturalization." In pursuance of this authority congress have
passed several laws on this subject, which, as they are of
general interest, are here transcribed as far as they are in
force.
3. - 1. An act to establish an uniform rule of naturalization,
and to repeal the acts heretofore passed on that subject.
Approved Aprill 14, 1802. 7 Hill, 137.
§1. Be it enacted, &c, That any alien, being a free white
person, may be admitted to become a citizen of the United States,
or any of them, on the following conditions, and not otherwise:
First, That be shall have declared, on oath or affirmation,
before the supreme, superior, district, or circuit court, of some
one of the states, or of the territorial districts of the United
States, or a circuit or district court of the United States,
three years at least before his admission, that it was, bona
fide, his intention to become a citizen of the United States, and
to renounce forever all allegiance and fidelity to any foreign
prince, potentate, state, or sovereignty, whatever, and
particularly, by name, the prince, potentate, state or
sovereignty, whereof such alien may, at the time, be a citizen or
subject. Secondly, That he shall, at the time of bis application
to be admitted, declare, on oath or affirmation, before some one
of the courts aforesaid, that he will support the constitution of
the United States, and that he doth absolutely and entirely
renounce and abjure all allegiance and fidelity to every foreign
prince, potentate, state, or sovereignty, whatever, and
particularly, by name, the prince, potentate, state, or
sovereignty, whereof he was before a citizen or subject; which
proceedings shall be recorded by the clerk of the court. Thirdly,
That the court admitting such alien shall be satisfied that he
has resided within the United States five years, at least, and
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within the state or territory where such court is at the time
held, one year at least; and it shall further appear to their
satisfaction, that, during that time, he has behaved as a man of
good moral character, attached to the principles of the
constitution of the United States, and well disposed to the good
order and happiness of the same:
4. Provided, That the oath of the applicant shall, in no case,
be allowed to prove his residence. Fourthly, That in case the
alien, applying to be admitted to citizenship, shall have borne
any hereditary title, or been of any of the orders of nobility,
in the kingdom or state from which he came, he shall in addition
to the above requisites, make a express renunciation of his title
or order of nobility, in the court to which his application shall
be made, which renunciation shall be recorded in the said court:
5. Provided, That no alien, who shall heretofore passed on that
subject. Approved April 14, 1802. 7 Hill, 137. §1. Be it enacted,
&c. That any alien, being a free white person, may be admitted to
become a citizen of the United States, or any of them, on the
following conditions, and not otherwise: First, That he shall
have declared, on oath or affirmation, before the supreme,
superior, district, or circuit court, of some one of the states,
or of the territorial districts of the United States, or a
circuit or district court of the United States, three years at
least before his admission, that it was, bona fide, his intention
to become a citizen of the United States, and to renounce forever
all allegiance and fidelity to any foreign prince, potentate,
state, or sovereignty, whatever, and particularly, by name, the
prince, potentate, state or sovereignty, whereof such alien may,
at the time, be a citizen or subject. Secondly, That be shall, at
the time of bis application to be admitted, declare, on oath or
affirmation, before some one of the courts aforesaid, that he
will support the constitution of the United States, and that he
doth absolutely and entirely renounce and abjure all allegiance
and fidelity to every foreign prince, potentate, state, or
sovereignty, whatever, and particularly, by name, the prince,
potentate, state, or sovereignty, whereof he was before a citizen
or subject; which proceedings shall be recorded by the clerk of
the court. Thirdly, That the court admitting such alien shall be
satisfied that he has resided within the United States five
years, at least, and within the state or territory where such
court is at the time held, one year at least; and it shall
further appear to their satisfaction, that, during that time, he
has behaved as a man of good moral character, attached to the
principles of the constitution of the United States, and well
disposed to the good order and happiness of the same:
4. Provided, That the oath of the applicant shall, in no case,
be allowed to prove his residence. Fourthly, That in case the
alien, applying to be admitted to citizenship, shall have borne
any hereditary title, or been of any of the orders of nobility,
in the kingdom or state from which he came, he shall, in addition
to the above requisites, make an express renunciation of his
title or order of nobility, in the court to wbich his application
shall be made, which renunciation shall be recorded in the said
court:
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5. Provided, That no alien, who shall be a native citizen,
denizen, or subject, of any country, state, or sovereign, with
whom the United States shall be at war, at the time of his
application, shall be then admitted to be a citizen of the United
States:
6. Provided, also, That any alien who was residing within the
limits, and under the jurisdiction, of the United States, before
the twenty-ninth day of January, one thousand seven hundred and
ninety-five, may be admitted to become a citizen, on due proof
made to some one of the courts aforesaid, that he has resided two
years, at least, within and under the jurisdiction of the United
States, and one year, at least, immediately preceding his
application within the state or territory where such court is at
the time held; and on bis declaring on oath, or affirmation,
that he will support the constitution of the United States, and
that be doth absolutely and entirely renounce and abjure all
allegiance and fidelity to any foreign prince, potentate, state,
or sovereignty, whatever, and particularly, by name, the prince,
potentate, state, or sovereignty, whereof he was before a citizen
or subject; and, moreover, on its appearing to the satisfaction
of the court, that, during the said term of two years, he has
behaved as a man of good moral cbaracter, attached to the
constitution of the United States, and well disposed to the good
order and happiness of the same; and where the alien, applying,
for admission to citizenship, shall have borne any hereditary
title, or been of any of the orders of nobility in the kingdom or
state from which be came, on his moreover making in the court an
express renunciation of his title or order of nobility, before he
shall be entitled to such admission: all of which proceedings,
required in this proviso to be performed in the court, shall be
recorded by the clerk thereof:
7. And provided, also, That any alien who was residing within
the limits, and under the jurisdiction, of the United States, at
any time between the said twenty-ninth day of January, one
thousand seven hundred and ninety-five, and the eighteenth day of
June, one thousand seven hundred and ninety-eight, may, within
two years after the passing of this act, be admitted to become a
citizen, without a compliance with the first condition above
specified.
8. - §3. And whereas, doubts have arisen whether certain courts
of record, in some of the states, are included within the
description of district or circuit courts: Be it further
enacted, That every court of record in any individual state,
having common law jurisdiction, and a seal, and clerk or
prothonotary, shall be considered as a district court within the
meaning of this act; and every alien, who may have been
naturalized in any such court, shall enjoy, from and after the
passing of the act, the same rights and privileges, as if he had
been naturalized in a district or circuit court of the United
States.
9. - §4. That the children of persons duly naturalized under
any of the laws of the United States, or who, previous to the
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passing of any law on that subject by the government of the
United States, may have become citizens of any one of the said
states, under the laws thereof, being under the age of twenty-one
years, at the time of their parents' being so naturalized or
admitted to the rights of citizenship, shall, if dwelling in the
United States, be considered as citizens of the United States;
and the children of persons who now are, or have been, citizens
of the United States, shall, though born out of the limits and
jurisdiction of the United States, be considered as citizens of
the United States:
10. Provided, That the right of citizenship shall not descend
to persons whose fathers have never resided within the United
States:
11. Provided also, That no person heretofore proscribed by any
state, or who has been legally convicted of having joined the
army of Great Britain during the late war, shall be admitted a
citizen, as aforesaid, without the consent of the legislature of
the state in which such person was proscribed.
12. - §5. That all acts heretofore passed respecting
naturalization, be, and the same are hereby repealed.
13. - 2. An act in addition to an act, entitled " An act to
establish an uniform rule of naturalization; and to repeal the
acts heretofore passed 'on that subject." Approved March 26,
1804.
14. - §1. 'Be it enacted, &c. That any alien, being a free
white person, who was residing within the limits, and under the
jurisdiction of the United States, at any time between the
eighteenth day of June, one thousand seven hundred and
ninety-eight, and the fourteenth day of April, one thousand eight
hundred and two, and who has continued to reside within the same,
may be admitted to become a citizen of the United States, without
a compliance with the first condition specified in the first
section of the act, entitled " An act to establish an uniform
rule of naturalization, and to repeal tile acts heretotore passed
on that subject."
15. - §2. That when any alien who shall have complied with the
first condition specified in the first section of the said
orginal act, and who shall have pursued the directions prescribed
in the second section of the said - act, may die, before he is
actually naturalized, the widow and the children of such alien
shall be considered as citizens of the United States; and shall
be entitled to all the rights and privileges as such, upon taking
the oaths prescribed by law.
16. - 3. An act for the regulation of seamen on board the
public and private vessels of the United States.
17. - §12. That no person who shall arrive in the United
States, from and after the time when this act shall take effect,
shall be admitted to become a citizen of the United States, who
shall not, for the continued term of five years, next precediug
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his admission as aforesaid, have resided within the United
States, without being, at any time during the said five years,
out of the territory of the United States. App. March 3, 1813.
18. - 4. An act supplementary to the acts heretofore passed on
tlie subject of an uniform rule of naturalization. App. July 30,
1813.
19. - §1. Be it enacted, &c. That persons resident within the
United States, or the territories thereof, on the eighteenth day
of June, in the year one thousand eight hundred and twelve, who
had, before that day, made a declaration, according to law, of
their intentions to become citizens of the United States, or who,
by the existing laws of the United States, were, on that day,
entitled to becoine citizens without making such declaration, may
be admitted to become citizens thereof" notwithstanding they
shall be alien enemies, at the time and in the manner prescribed
by the laws heretofore passed on the subject: Provided, That
nothing herein contained shall be taken or construed to interfere
with, or prevent the apprehension and removal, agreeably to law,
of any alien enemy at any time previous to the naturalization of
such alien.
20. - 5. An act relative to evidence in case of naturalization.
App. March 22, 1816.
21. - §2. That nothing herein contained shall be construed to
exclude from admission to citizenship, any free white person who
was residing within the limits and under the jurisdiction of the
United States at any time between the eighteenth day of June, one
thousand seven hundred and ninety-eight, and the fourteenth day
of April, one thousand eight hundred and two, and who, having
continued to reside therein, without having made any declaration
of intention before a court of record as aforesaid, may be
entitled to become a citizen of the United States according to
the act of the twenty-sixth of March, one thousand eight hundred
and four, entitled "An act in addition to an act, entitled 'An
act to establish an uniform rule of naturalization, and to repeal
the acts heretofore passed on that subject.' "Whenever any
person, without a certificate of such declaration of intention,
as aforesaid, shall make application to be admitted a citizen of
the United States, it shall be proved, to the satisfaction of the
court, that the applicant was residing within the limits and
under the jurisdiction of tlie United States before the
fourteenth day of April one thousand eight hundred and two, and
has continued to reside within tlie same, or be shall not be so
admitted. And the residence of the applicant within the limits
and under the jurisdiction of the United States, for at least
five years immediately preceding the time of such application,
shall be proved by the oath or affirmation of citizens of the
United States; which citizens shall be named in the record as
witnesses. And such continued residence within the limits and
under the jurisdiction of the United States, when satisfactorily
proved, and the place or places where the applicant has resided
for at least five years, as aforesaid, shall be stated and set
forth, together with the names of such citizens, in the record of
the court admitting the applicant; otherwise the same shall not
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entitle him to be considered and deemed a citizen of the United
States.
22. - 6. An act in further addition to "An act to establish an
uniform rule of naturalization, and to repeal the acts heretofore
passed on that subject." App. Ma 26, 1824.
23. - §1. Be it enacted, &c. That an alien, being a free white
person and a minor under the age of twenty-one years, who shall
have resided in the United States three years next preceding his
arriving at the age of twenty-one years, and who shall have
continued to reside therein to the time be way make application
to be admitted a citizen thereof, may, after he arrives at the
age of twenty-one years, and after be shall have resided five
years within the United States, including the three years of his
minority, be admitted a citizen of the United States, without
having made the declaration required in the first condition of
the first section of the act to which this is an addition, three
years previous to his admission.
24. Provided, such alien shall make the declaration required
therein at the time of his or her admission; and shall further
declare, on oath, and prove to the satisfaction of the court,
that, for three years next preceding, it has been the bona fide
intention of such alien to become a citizen of the United States;
and shall, in all other respects, comply with the laws in regard
to naturalization.
25. - §2. That no certificates of citizenship, or
naturalization, heretofore obtained from any court of record
within the United States, shall be deemed invalid, in consequence
of an omission to comply with the requisition of the first
section of the act, entitled " An Act relative to evidence in
cases of naturalization," passed the twenty-second day of March,
one thousand eight hundred and sixteen.
26. - §8. That the declaration required by the first condition
specified in the first section of the act, to which this is an
addition, shall, if the same shall be bona fide, made before the
clerks of either of the courts in the said condition named, be as
valid as if it had been made before the said courts,
respectively.
27. - §4. That a declaration by any alien, being a free white
person, of his intended application to be admitted a citizen of
the United States, made in the manner and form prescribed in the
first condition specified in the first section of the act to
which this is an addition, two years before his admission, shall
be a sufficient compliance with said condition; anything in the
said act, or in any subsequent act, to the contrary
notwithstanding.
28. - 7. An mot to amend the acts concerning naturalization.
App. May 24, 1828.
29. - §1. Be it enacted, &c. That the second section of the
act, entitled "An act to establish an uniform rule of
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naturalization, and to repeal the acts heretofore passed on that
subject," which was passed on the fourteenth day of April, one
thousand eight hundred and two, and the first section of the act,
entitled " An act relative to evidence in cases of
naturalization," passed on the twenty-second day of March, one
thousand eight hundred and sixteen, be, and the same are hereby
repealed.
30. - §2. That any alien, being a free white person, who has
resided within the Iimits and under the jurisdiction of the
United States, between the fourteenth day of April, one thousand
eight hundred and two, and the eighteenth day of June, one
thousand eight hundred and twelve, and who has continued to
reside within tbe same, may be admitted to become a citizen of
the United States, without having made any previous declaration
of his intention to become a citizen:
31. Provided, That whenever any person without a certificate of
such declaration of intention, shall make application to be
admitted a citizen of the United States, it shall be proved to
the satisfaction of the court, that the applicant was residing
within the limits, and under the jurisdiction of the United
States, before the eighteenth day of June, one thousand eight
hundred and twelve, and has continued to reside within the same,
or he shall not be so admitted; and the residence of the
applicant within the limits and under the jurisdiction of the
United States, for at least five years immediately preceding the
time of such application, shall be proved by the oath or
affirmation of citizens of the United States, which citizens
shall be named in the record as witnesses; and such continued
residence within the limits and under the jurisdiction of the
United States when satisfactorily proved, and the place or places
where the applicant has resided for at least five years as
aforesaid, shall be stated and set forth, together with the names
of such citizens, in the record of the court admitting the
applicant; otherwise the same shall not entitle him to be
considered and deemed a citizen of the United States.
NATURALIZED CITIZEN. One who, being born an alien, has lawfully
become a citizen of the United States Under the constitution and
laws.
2. He has all the rights of a natural born citizen, except that
of being eligible as president or vice-president of the United
States. In foreign countries he has a right to be treated as
such, and will be so considered even in tlie country of his
birth, at least for most purposes. 1 Bos. & P. 430. See Citizen;
Domicil; Inhabitant.
NAUFRAGE, French mar. law. When, by the violent agitation of
the waves, the impetuosity of the winds, the storm, or the
lightning, a vessel is swallowed up, or so shattered that there
remain only the pieces, the accident is called naufrage.
2. It differs from echouement, which is, when the vessel,
remains whole, but is grounded; or from bris, which is, when it
strikes against a rock or a coast; or from sombrer, which is,
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the sinking of the vessel in the sea, when it is swallowed up,
and which may be caused by any accident whatever. Pardes. n. 643,
Vide Wreck.
NAUTAE. Strictly speaking, only carriers by water are
comprehended under this word. But the rules which regulate such
carriers have been applied to carriers by land. 2 Ld. Raym. 917;
1 Bell's Com. 467.
NAVAL OFFICER. The name of an officer of the United States,
whose duties are prescribed by various acts of congress.
2. Naval officers are appointed for the term of four years, but
are removable from office at pleasure. Act of May 15, 1820, §1, 3
Story, L. U . S. 1790.
3. The act of March 2, 1799, §21, 1 Story, L. U. S. 590,
prescribes that the naval officer shall receive copies of all
manifests, and entries, and shall, together with the collector,
estimate the duties on all goods, wares, and merchandise, subject
to duty, (and no duties shall be received without such estimate,)
and shall keep a separate record thereof, and shall countersign
all permits, clearances, certificates, debentures, and other
documents, to be granted by the collector; he shall also examine
the collector's abstracts of duties, and other accounts of
receipts, bonds, and expenditures, and, if found right, he shall
certify the same.
4. And by §68, of the same law, it is enacted, that every
collector, naval officer, and surveyor, or other person specially
appointed, by either of them, for that purpose, shall have full
power and authority to enter any ship or vessel, in which they
shall have reason to suspect any goods, wares, or merchandise,
subject to duty, are concealed, and therein to search for, seize,
and secure, any such goods, wares, or merchandise and if they
shall have cause to suspect a concealment thereof in any
particular dwelling house, store, building, or other place, they
or either of them shall, upon proper application, on oath, to any
justice of the peace, be entitled to a warrant to enter such
house, store, or other place (in the day time only,) and there to
search for such goods; and if any shall be found, to seize and
secure the same for trial; and all such goods, wares and
merchandise, on which the duties shall not have been paid, or
secured to be paid, shall be forfeited.
NAVICULARIS, civil law. He who had the management and care of a
ship. The same as our sea captain. Bouch. Inst. n. 359. Vide
Captain.
NAVIGABLE. Capable of being navigated.
2. In law, the term navigable is applied to the sea, to arms of
the sea, and to rivers in which the tide flows and reflows. 5
Taunt. R. 705; S. C. Eng. Com. Law Rep. 240; 5 Pick. R. 199;
Ang. Tide Wat. 62; 1 Bouv. Inst. n. 428.
3. In North Carolina; 1 M'Cord, R. 580; 2 Dev. R. 30; 3 Dev.
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R. 59; and in Pennsylvania; 2 Binn. R. 75; 14 S. & R. 71; the
navigability of a river does not depend upon the ebb and flow of
the tide, but a stream navigable by sea vessels is a navigable
river.
4. By the common law, such rivers as are navigable in the
popular sense of the word, whether the tide ebb and flow in them
or not, are public highways. Ang. Tide Wat. 62; Ang. Wat.
Courses, 205 1 Pick. 180; 5 Pick. 199; 1 Halst. 1; 4 Call,
441: 3 Blackf. 136. Vide Arm of the sea; Reliction; River.
NAVIGATION. The act of traversing the sea, rivers or lakes, in
ships or other vessels; the art of ascertaining the geographical
position of a ship, and directing her course.
2. It is not within the plan of this work to copy the acts of
congress relating to navigation, or even an abstract of them. The
reader is referred to Story's L. U. S. Index, h. t.; Gordon's
Dic. art. 2905, et seq.
NAVY. The whole shippings taken collectively, belonging to the
government of an independent nation; the ships belonging to
private individuals are not included in the navy.
2. The constitution of the United States, art. 1, s. 8, vests
in congress the power to provide and maintain a navy."
3. Anterior to the war of 1812, the navy of the United States
bad been much neglected, and it was not until during the late
war, when it fought itself into notice, that the public attention
was seriously attracted to it. Some legislation favorable to it,
then took place.
4. The act of January 2, 1813, 2 Story's L. U. S. 1282,
authorized the president of the United States, as soon as
suitable materials could be procured therefor, to cause to be
built, equipped and employed, four ships to rate not less than
seventy-four guns, and six ships to rate forty-four guns each.
The sum of two millions five hundred thousand dollars is
appropriated for the purpose.
5. And by the act of March 3, 1813, 2 Story, L. U. S. 1313, the
president is further authorized to have built six sloops of war,
and to have built or procured such a number of sloops of war or
other armed vessels, as the public service may require on the
lakes. The sum of nine hundred thousand dollars is appropriated
for this purpose, and to pay two hundred thousand dollars for
vessels already procured on the lakes.
6. The act of March 3, 1815, 2 Story, L. U. S. 1511,
appropriates the sum of two hundred thousand dollars annually for
three years, towards the purchase of a stock of materials for
ship building.
7. The act of April 29, 1816, may be said to have been the
first that manifested the fostering care of congress. By, this
act the sum of one million of dollars per annum for eight years,
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including the sum of two hundred thousand dollars per annum
appropriated by the act of March 3, 1815, is appropriated. And
the president is authorized to cause to be built nine ships, to
rate not less than seventy-four guns each, and twelve ships to
rate not less than forty-four guns each, including one
seventy-four and three forty-four gun ships, authorized to be
built by the act of January 2d, 1813. The third section of this
act authorizes the president to procure steam engines and all the
imperishable materials for building three steam batteries.
8. The act of March 3, 1821, 3 Story's L. U. S. 1820, repeals
the first section of the act of the 29th April, 1816, and instead
of the appropriation therein contained, appropriates the sum of
five bundred thousand dollars per annum for six years, from the
year 1821 inclusive, to be applied to carry into effect the
purposes of the said act.
9. To repress piracy in the gulf of Mexico, the Act of 22d
December, 1822, was passed, 3 St. L. U. S. 1873. It authorizes
the president to purchase or construct a sufficient number of
vessels to repress piracy in that gulf and the adjoining seas and
territories. It appropriates one hundred and sixty thousand
dollars for the purpose.
10. The act of May 17, 1826, authorizes the suspension of the
building of one of tlie ships above authorized to be built, and
authorizes the president to purchase a ship of not less than the
smallest class authorized to be built by the act of 29th April,
1816.
11. The act of March 3 , 1827, 3 St. L. U. S. 2070,
appropriates five hundred thousand dollars per annum for six
years for the gradual improvement of the navy of the United
States, and authorizes the president to procure materials for
ship building. A further appropriation is made by the act of
March 2, 1833, 4 Sharsw. con. of St. L. U. S. 2346, of five
hundred thousand dollars annually for six years from and after,
the third of March, 1833, for the gradual improvement of the navy
of the United States; and the president is authorized to cause
the above mentioned appropriatiou to be applied as directed by
the act of March 3, 1827.
12. For the rules and regulations of the navy of the United
States, the reader is referred to the act " for the better
government of the navy of the United States." 1 St. L. U. S. 761.
Vide article Names of Ships.
NE DISTURBA PAS, pleading. The general issue in quare impedit.
Hob. 162 Vide Rast, 517; Winch. Ent. 703.
NE BAILA PAS. He did not deliver. This is a plea in detinue, by
which the defendant denies the delivery to him of the thing sued
for.
NE DONA PAS, or NON DEDIT, pleading. The general issue in
formedon; and is in the following formula: "And the said C D,
by J K, his attorney, comes and defends the right, when, &c., and
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says, that the said E F did not give the said manor, with the
appurtenances, or ally part thereof, to the said G B, and the
heirs of his body issuing, in manner and form as the said A B
hath in his count above alleged.' And of this the said C D puts
himself upon the country." 10 Went. 182.
NE EXEAT REPUBLICA, practice. The name of a writ issued by a
court of chancery, directed to the sheriff, reciting that the
defendant in the case is indebted to the a complainant, and, that
he designs going quickly into parts without the state, to the
damage of the complainant, and then commanding him to cause the
defendant to give bail in a certain sum that he will not leave
the state without leave of the court, and for want of such bail
that he tlie sheriff, do commit the defendant to prison.
2. This writ is used to prevent debtors from escaping from
their creditors. It amounts in ordinary civil cases, to nothing
more than process to hold to bail, or to compel a party to give
security to abide the decree to be made in his case. 2 Kent, Com.
32 1 Clarke, R. 551,; Beames' Ne Excat; 13 Vin. Ab. 537; 1
Supp to Ves. jr. 33, 352, 467; 4 Ves. 577 5 Ves. 91; Bac. Ab.
Prerogative, C; 8 Com. Dig. 232; 1 Bl. Com. 138 Blake's Ch. Pr.
Index, h. t.; Madd. Ch. Pr. lndex, h. t.; 1 Smith's Ch. Pr.
576; Story's Eq. Index, h. t.
3. The subject may be considered under the following heads.
4. - 1. Against whom a writ of ne exect may be issued. It may
be issued against foreigners subject to the jurisdiction of the
court, citizens of the same state, or of another state, when it
appears by a positive affidavit that the defendant is about to
leave the state, or has threatened to do so, and that the debt
would be lost or endangered by bis departure. 3 Johns. Ch. R. 75,
412; 7 Johns. Ch. R. 192; 1 Hopk. Ch. R. 499. On the same
principle which has been adopted in the courts of law that a
defendant could not be held to bail twice for the same cause of
action, it has been decided that a writ of ne exeat was not
properly issued against a defendant who had been held to bail in
an action at law. 8 Ves. jr. 594.
5. - 2. For what claims. This writ can be issued only. for
equitable demands. 4 Desaus. R. 108; 1 Johns. Ch. R. 2; 6
Johns. Ch. R. 138; 1 Hopk. Ch. R. 499. It may be allowed in a
case to prevent the failure of justice. 2 Johns. Chanc. Rep. 191.
When tlie demand is strictly legal, it cannot be issued, because
the court has no jurisdiction. When the court has concurrent
jurisdiction with the courts of common law, the writ may, in such
case, issue, unless the party has been already arrested at law. 2
Johns. Ch. R. 170. In all cases, when a writ of Be exeat is
claimed, the plaintiff's equity must appear on the face of the
bill. 3 Johns. Ch. R. 414.
6.-3. The amount of bail. The amount of bail is assessed by the
court itself and a sum is usually directed sufficient to cover
the existing debt, and a reasonable amount of future interest,
having regard to the probable duration of the suit. 1 Hopk. Ch.
R. 501.
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NE LUMINIBUS OFFICIATOR, civil law. The name of a servitude
which restrains the owner of a house from making such erections
as obstruct the light of the adjoining house. Dig. 8, 4, 15, 17.
NE RECIPIATUR. That it be not received. A caveat or words of
caution given to a law officer, by a party in a cause, not to
receive the next proceedings of his opponent. 1 Sell. Br. 7.
NE RELESSA PAS. The name of a replication to a plea, of
release, by which tlie plaintiff insists he did not release. 2
Buls. 55.
NE UNJUSTE VEXES, old Engl. law. The name of a writ which
issued to relieve a tenant upon, whom his lord had distrained for
more services than he was bound to perform.
2. It was a prohibition to the lord, not unjustly to distrain
or vex his tenant. F. N. B. h. t.
NE UNQUES ACCOUPLE, pleading. A plea by which the party denies
that he ever was lawfully married to the person to whom it
refers. See the form, 2 Wils. R. 118; Morg. 582; 10 Went. Prec.
Pl. 158; 211 Bl. 145; 3 Chit. PI. 599.
NE UNQUES EXECUTOR, pleading. A plea by which the party who
uses it denies that the plaintiff is an executor, as he claims to
be; or that the defendant is executor, as the plaintiff in his
declaration charges him to be. 1 Chit. Pl. 484; 1 Saund. 274, n.
3; Coin. Dig. Pleader, 2 D, 2 2 Chit. PI. 498.
NE UNQUES SEISIE QUIZ DOWER, pleading. A plea by which a
defendant denies the right of a widow who sues for, and demands
her dower in lands, &c., late of her husband, because the husband
was not, on the day of her marriage with him, or any time
afterwards, seised of such estate, so that she could be endowed
-of the game. See 2 Saund. 329; 10 Went. 159; 3 Chitt. Pl. 598,
and the authorities there cited.
NE UNQUES SON RECEIVER, pleading. The name of a plea in an
action of account render, by which the defendant affirms that he
never was receiver of tlie plaintiff. 12 Vin. Ab. 183.
NE VARIETUR. These words, which literally signify that it be
not varied or changed, are sometimes written by notaries public
upon bills or notes, for the purpose of identifying them. This
does not destroy their negotiability. 8 Wheat. 338.
NEAT or NET, contracts. The exact weight of an article, without
the bag, box, keg, or other thing in which it may be enveloped.
NEATNESS, pleading. The statement, in apt and appropriate
words, of all the necessary facts, and ne more. Lawes on Pl. 62.
NECESSARIES. Such things as are proper and requisite for tlie
sustenance of man.
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2. The term necessaries is not confined merely to what is
requisite barely to support life, but includes many of the
conveniences of refined society. It is a relative term, which
must be applied to the circumstances and conditions of the
parties. 7 S. & R. 247. Ornaments and superfluities of dress,
such as are usually worn by the party's rank and situation in
life, have been classed among necessaries. 1 Campb. R. 120; 7 C.
& P. 52; 1 Hodges, R. 31; 8 T. R. 578; 3 Campb. 326; 1
Leigh's N. P. 135.
3. Persons incapable of making contracts generally, may,
nevertheless, make legal engagements for necessaries for which
they, or those bound to support them, will be held responsible.
The classes of persons who, although not bound by their usual
contracts, can bind themselves or others for necessaries, are
infants and married women.
4. - 1. Infants are allowed to make binding contracts whenever
it is for their interest; when, therefore, they are unprovided
with necessaries, which, Lord Coke says, include victuals,
clothing, medical aid, and "good teaching and instruction,
whereby he may profit himself afterwards," they may buy them, and
their contracts will be binding. Co. Litt. 172 a. Necessaries for
the infant's wife &lad children, are necessaries for himself.
Str. 168; Com. Dig. Enfant, B 5; 1 Sid. 112 2 Stark. Ev. 725;
8 Day, 37 1 Bibb, 519; 2 Nott & McC. 524; 9 John. R. 141.; 16
Mass. 31; Bac. Ab. Infancy, I.
5. - 2. A wife is allowed to make contracts for necessaries,
and her husband is generally responsible upon tbem, because his
assent is presumed, and even if notice be given not to trust her,
still he would be liable for all such necessaries as she stood in
need of; but in this case, the creditor would be required to
show she did stand in need of the articles furnished. 1 Salk. 118
Ld. Raym. 1006. But if the wife elopes, though it be not with an
adulterer, ho is not chargeable even for necessaries; the very
fact of the slopement and 'Separation, is sufficient to put
persons on inquiry, and whoever gives credit to the wife
afterwards, gives it at his peril. 1 Salk. 119; Str. 647; 1
Sid. 109; S. C. 1 Lec. 4; 12 John. R. 293; 3 Pick. R. 289; 2
Halst. 146; 11 John. R. 281; 2 Kent, Com. 123; 2 St. Ev. 696;
Bac. Ab. Baron and Feme, H; Chit. Contr. Index, h. t.; 1 Hare &
Wall. Sel. Dec. 104, 106; Ham. on Parties, 217.
NECESSARY AND PROPER. The Constitution of the United States,
art. 1, s. 8, vests in congress the power " to make all laws,
which shall be necessary and proper, for carrying into execution
the foregoing powers, and all other powers vested by this
constitution in the government of the United States, in any
department or officer thereof."
2. This power bas ever been viewed with perhaps unfounded
jealousy and distrust. is a power expressly given, which, without
this clause, would, be im lied. The plain import of the clause
is, that congress shall have all incidental and instrumental
powers, necessary and proper to carry into execution all the
express powers. It neither enlarges any power, specifically
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granted, nor is it a grant of any new power to congress. It is
merely a declaration for the removal of all uncertainty, that the
means of carrying into execution those already granted, are
included in the grant.
3. Some controversy has taken place as to what is to be
considered " necessary; "it has been contended that by this must
be understood what is indispensable; but it is obvious the term
necessary means no more than useful, needful, requisite,
incidental, or conducive to. It is in this sense the word appears
to have been used, when connected with the word " proper." 4
Wheat. 418-420; 3 Story, Cons-t. §1231 to 1253.
NECESSARY INTROMISSION, Scotch law. When the husband or wife
continues, after the decease of his or her companion in
possession of the decedent's goods, for their preservation.
NECESSITY. In general, whatever makes the contrary of a thing
impossible, whatever may be the cause of such impossibilities,
2. Whatever is done through necessity, is done without any
intention, and as the act is done without will, (q. v.) and is
compulsory, the agent is not legally responsible. Bac. Max. Reg.
5. Hence the maxim, necessity has no law; indeed necessity is
itself a law which cannot be avoided nor infringed. Clef des Lois
Rom. h. t.; Dig 10, 3, 10, 1; Com. Dig. Pleader, 3 M 20, 3 M
30.
3. It follows, then, that the acts of a man in violation of
law., or to the injury of another, may be justified by necessity,
because the actor has no will to do or not to do the thing, he is
a mere tool; but, it is conceived, this necessity must be
absolute and irresistible, in fact, or so presumed in point of
law.
4. The cases which are justified by necessity, may be classed as
follows:
I. For the preservation of life; as if two persons are on the
same plank, and one must perish, the survivor is justified in
having thrown off the other, who was thereby drowned. Bac. Max,
Reg. 5.
5. - 2. Obedience by a person subject to the power of another;
for example, if a wife should commit a larceny with her husband,
in this case the law presumes she acted by coercion of her
husband, and, being compelled, by necessity, she is justifiable.
1 Russ. Cr. 16, 20; Bac. Max. Reg. 5.
6. - 3. Those cases which arise from the act of God, or
inevitable accident, or from the act of man, as public enemies.
Vide dct of God; Inevitable Accident and also 15 Vin. Ab. 534
Dane's Ab h. t.; 2 Stark. Ev. 713; Marsh. Ins. b. 1, c. 6, s. 3
Jacob's Intr. to. Com. Law. Reg. 74.
7. - 4. There is another species of necessity. The actor in
these cases is not compelled to do the act whether he will or
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not, but he has no choice left but to do the act which may be
injurious to another, or to lose the total use of his property.
For example, when a man's lands are surrounded by those of
others, so that he cannot enjoy them without trespassing on his
neighbors. The way which is thus obtained, is called a way of
necessity. Gale and Whatley on Easements, 71; 11 Co. 52; Hob.
234; 1 Saund. 323, note. See 3 Rawle, R. 495; 3 M'Cord, R. 131;
Id. 170; 14 Mass. R. 56; 2 B. & C. 96; 2 Bing. R. 76; 8 T. R.
50; Cro. Jac. 170; 2 Roll. Ab. 60; 3 Kent, Com. 423; 3
Rawle's R. 492; 1 Taunt. R. 279; 8 Taunt. R. 24; ST. R. 50;
Ham. N. P. 198; Cro. Jac. 170; 2 Bouv. Inst. n. 1637; and Way.
NEGATION. Denial. Two negations are construed to mean one
affirmation. Dig. 50, 16, 137.
NEGATIVE. This word has several significations. 1. It is used in
contradistinction to giving assent; thus we say the president
has put his negative upon such a bill. Vide Veto. 2. It is also
used in contradistinction to affirmative; as, a negative does
not always admit of the simple and direct proof of which an
affirmative is capable. When a party affirms a negative in his
pleadings, and without the establishment of which, by evidence,
he cannot recover or defend himself, the burden of the proof lies
upon him, and he must prove the negative. 8 Toull. n. 18. Vide 2
Gall. Rep. 485; 1 McCord, R. 573; 11 John. R. 513; 19 John. R.
345; 1 Pick. R. 375; Gilb. Ev. 145; 1 Stark. Ev. 376; Bull.
N. P. 298; 15 Vin. Ab. 540; Bac. Ab. Pleas, &c. I.
202. Although as a general rule the affirmative of every issue
must be proved, yet this rule ceases to operate the moment the
preumption of law is thrown into the other scale. When the issue
is on the legitimacy of a child, therefore, it is incumbent on
the party asserting the illegitimacy to prove it. 2 Selw. N. P.
709. Vide Affirmative Innocence.
NEGATIVE AVERMENT, pleading, evidence. An averment in some of
the pleadings in a case in which a negative is asserted.
2. It is a general rule, established for the purpose of
shortening and facilitating investigations, that the point in
issue is to be proved by the party who asserts the affirmative;
1 Phil. Ev. 184; Bull N. P. 298; but as this rule is not
founded on any presumption of law in fav-or of the party, but is
merely a rule of practice and conveience, it, ceases in all cases
when the presumption of law is thrown into the opposite scale.
Gilb. Ev. 145. For example, when the issue is on the legitimacy
of a child born in lawful wedlock, it is, incumbent on the party
asserting its illegitimacy to prove it. 2 Selw. N. P. 709.
3. Upon the same principle, when, the negative averment involves
a charge of criminal neglect of duty, whether official or
otherwise, it must be proved, for the law presumes every man to
perform the duties which it imposes. 2 Gall. R. 498; 19 John. R.
345; 10 East, R. 211; 3 B. & P. 302; 3 East, R. 192; 1 Mass.
R. 54; 3 Campb. R. 10; Greenl. Ev. SS 80; 3 Bouv. Inst. n.
3089. Vide Onus Probandi.
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NEGATIVE CONDITION, contracts, wills. One where the thing which
is the subject of it must not happen; as, if I do not marry.
Poth. Ob. n. 200; 1 Bouv. Inst. n. 751.
NEGATIVE PREGNANT, pleading. Such form of negative expression,
in pleading, as may imply or carry within it an affirmative.
2. This is faulty, because the meaning of such form of
expression is ambiguous. Example: in trespass for entering the
plaintiff's house, the defendant pleaded, that the plaintiff's
daughter gave him license to do so; and that he entered by that
license. The plaintiff replied that he did not enter by her
license. This was considered as a negative pregnant and it was
held the plaintiff should have traversed the entry by itself, or
the license by itself, and not both together. Cro. Jac. 87.
3. It may be observed that this form of traverse may imply; or
carry within it, that the license was given, though the defendant
did not enter by that license. It is therefore in the language of
pleading said to be pregnant with the admission, namely, that a
license was given: at the same time, the license is not
expressly admitted, and the effect therefore is, to leave it in
doubt whether the plaintiff means to deny the license, or to
deny, that the defendant entered by virtue of that license. It is
this ambiguity which appears to constitute the fault. 28 H. VI.
7; Hob. 295; Style's Pr. Reg. Negative Pregnant. Steph. PI.
381; Gourd, Pl. c. 6, §29-37.
4. This rule, however, against a negative pregnant, appears, in
modern times at least, to have received no very strict
construction; for many cases have occurred in which, upon
various grounds of distinction from the general rule, that form
of expression has been free from objection. See several instances
in Com. Dig. Pleader, R. 6; 1 Lev. 88; Steph. Pl. 383. Vide
Arch. Civ. PI. 218; Doct. Pl. 817; Lawe's Civ. Pl. 114; Gould,
Pl. c. 6, 36.
NEGATIVE STATUTE. One which is enacted in negative terms, and
which so controls the common law, that it has no force in
opposition to the statute. Bro. Parl. pl. 72; Bac. Ab. Statutes,
G.
NEGLIGENCE, contracts, torts. When considered in relation, to
contracts, negligence may be divided into various degrees,
namely, ordinary, less than ordinary, more than ordinary. 1
Miles' Rep. 40.
2. Ordinary negligence is the want of ordinary diligence;
slight or less than ordinary negligence, is, tlie want of great
diligence; and gross or more than ordinary negligence, is the
want of slight diligence.
3. Three great principles of responsibility, seem naturally to
follow this division.
4. - 1. In those contracts which are made for the sole benefit
of the creditor, the debtor is responsible only for gross
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negligence, good faith alone being required of him; as in the
case of a depositary, who is a bailee without reward; Story,
Bailm. 62; Dane's Ab. c. 17, a, 2; 14 Serg. & Rawle, 275; but
to this general rule, Pothier makes two exceptions. The first, in
relation to the contract of a mandate, and the second, to the
quasi contract negotiorum gestorum; in these cases, he says, the
party undertaking to perform these engagements, is bound to use
necessary care. Observation Generale, printed at the end of the
Traite des Obligations.
5. - 2. In those contracts which are for the reciprocal benefit
of both parties, such as those of sale, of hiring, of pledge, and
the like, the party is bound to take, for the object of the
contract, that care which a prudent man ordinarily takes of his
affairs, and he will therefore be held responsible for ordinary
neglect. Jones' Bailment, 10, 119; 2 Lord Raym. 909; Story,
Bailm. §23; Pothier, Obs. Gener. ubi supra.
6. - 3. In those contracts made for the sole interest of the
party who has received, and is to return the thing which is the
object of the contract, such, for example, as loan for use, or
commodatum, the slightest negligence will make him responsible.
Jones' Bailm. 64, 65; Story's Bailm. §237; Pothier, Obs. Gen.
ubi supra.
7. In general, a party who has caused an injury or loss to
another in consequence of his negligence, is responsible for all
the consequence. Hob. 134; 3 Wils. 126; 1 Chit. TI. 129, 130;
2 Hen. & Munf. 423; 1 Str. 596; 3 East, R. 596. An example of
this kind may be found in the case of a person who drives his
carriage during a dark night on the wrong side of the road, by
which he commits an injury to another. 3 East, R. 593; 1 Campb.
R. 497; 2 Cam b. 466; 2 New Rep. 119. Vide Gale and Whatley on
Easements, Index, h. t.; 6 T. R. 659; 1 East, R. 106; 4 B. &
A; 590; S. C. 6 E. C. L. R. 628; 1 Taunt. 568; 2 Stark. R.
272; 2 Bing. R. 170; 5 Esp. R. 35, 263; 5 B. & C. 550. Whether
the incautious conduct of the plaintiff will excuse the
negligence of the defendant, see 1 Q. B. 29; 4 P. & D. 642; 3
M. Lyr. & Sc. 9; Fault.
8. When the law imposes a duty on an officer, whether it be by
common law or statute, and he neglects to perform it, he may be
indicted for such neglect; 1 Salk. R. 380; 6 Mod, R. 96; and
in some cases such neglect will amount to a forfeiture of the
office. 4 Bl. Com. 140. See Bouv. Inst. Index, h. t.
NEGLIGENT ESCAPE. The omission to take such a care of a
prisoner as a gaoler is bound to take, and in consequence of it,
the prisoner departs from his confinement, without the knowledge
or consent of the gaoler, and eludes pursuit.
2. For a negligent escape, the sheriff or keeper of the prison
is liable to punishment in a criminal case; and in a civil case,
be is liable to an action for damages at the suit of the
plaintiff. In both cases, the prisoner may be retaken. 3 Bl. Com.
415.
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NEGOTIABLE. That which is capable of being transferred by
assignment; a thing, the title to which may be transferred by a
sale and indorsement or delivery.
2. A chose in action was not assignable at common law, and
therefore contracts or agreements could not be negotiated. But
exceptions have been allowed to this rule in relation to simple
contracts, and others have been introduced by legislative acts.
So that, now, bills of exchange, promissory notes, bills of
lading, bank notes, payable to order, or to bearer, and, in some
states, bonds and other specialties, may be transferred by
assignment, indorsement, or by delivery, when the instrument is
payable to bearer.
3. When a claim is assigned which is not negotiable at law,
such, for example, as a book debt, the title to it remains at law
in the assigner, but the assignee is entitled to it in equity,
and he may therefore recover it in the assignor's name. See,
generally, Hare & Wall. Sel. Dec. 158 to 194 Negotiable paper.
NEGOTIABLE PAPER, contracts. This term is applied to bills of
exchange and promissory notes, which are assignable by
indorsement or delivery.
2. The statute of 3 & 4 Anne (the principles of which have been
generally adopted in this country, either formally, or in
effect,) made promissory notes payable to a person, or to his
order, or bearer, negotiable like inland bills, according to the
custom of merchants.
3. This negotiable quality transfers the debt from the party to
whom it was originally owing, to the holder, when the instrument
is properly indorsed, so as to enable the latter to sue in his
own name, both the maker of a promissory note, or the acceptor of
a bill of exchange, and the other parties to such instruments,
such as the drawer of a bill, and the indorser of a bill or note,
unless the holder has been guilty of laches in giving the
required notice of non-acceptance or non-payment. But in order to
make paper negotiable, it is essential that it be payable in
money only, at all events, and not out of a particular fund. 1
Cowen, 691; 6 Cowen, 108; 2 Whart. 233; 1 Bibb, 490, 503; 1
Ham. 272; 3 J. J. Marsh, 174, 542; 3 Halst. 262; 4 Blackf. 47;
6 J. J. Marsh, 170; 4 Mont. 124. See 1 W. C. C. R. 512; 1
Miles, 294; 6 Munf. 3; 10 S. & R. 94; 4 Watts, 400; 4 Whart.
R. 252; 9 John. 120; 19 John. 144; 11 Verm. 268; 21 Pick.
140. Vide Promissory note. Vide 3 Kent. Com. Lecture 44; Com.
Dig. Merchant, F 15, 16; 2 Hill, R. 59; 13 East, 509; 3 B. &
C. 47; 7 Bing. 284; 5 T. R. 683; 7 Taunt. 265, 278; 3 Burr.
1516 6 Cowen, 151.
4. To render a bill or note negotiable, it must be payable to
order, or to bearer. When it is payable " to A B only," it cannot
be negotiated so as to give the indorsee a claim against any one
but his indorser. Dougl. 615. An indorsement to A B, without
adding " or order," is not restrictive to A B alone, he may,
therefore, assign it to another; Str. 557; or he may indorse it
in blank, when any attempt, afterwards, to restrain its
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negotiability will be unavailing. Esp. N. P. Cas. 180; 1 Bl.
Rep. 295. Vide Blank Indorsement; Indorsment.
NEGOTIATION, contracts The deliberation which takes place
between the parties touching a proposed agreement.
2. That which transpires in the negotiation makes no part of
the agreement, unless introduced into it. It is a general rule
that no evidence can be given to add, diminish, contradict or
alter a written instrument. 1 Dall. 426; 4 Dall. 340; 3 S. & R.
609; 7 S. & R. 114. See Pourparler
NEGOTIATION, merc. law. The act by which a bill of exchange or
promissory note is put into circulation by being passed by one of
the original parties to another person.
2. Until an accommodation bill or note has been negotiated,
there is no contract which can be enforced on the note: the
contract, either express or implied, that the party accommodated
will indemnify the other, is, till then, conditional. 2 Man. &
Gr. 911.
NEGOTIORUM GESTOR, contracts. In the civil law, the negotiorum
gestor is one who spontaneously, and without authority,
undertakes to act for another during his absence, in his affairs.
2. In cases of this sort, as he acts wholly without authority,
there can, strictly speaking, be no contract, but the civil law
raises a quasi mandate by implication, for the benefit of the
owner in many such cases. Poth. App. Negot. Gest. Mandat, n. 167,
&c.; Dig. 3, 5, 1, 9; Code, 2, 19, 2.
3. Nor is an implication of this sort wholly unknown to the
common law., where there has been a subsequent ratification of
acts of this kind by the owner; and sometimes, when unauthorized
acts are done, positive presumptions are made by law for the
benefit of particular, parties. For example, if a person enters
upon a minor's lands, and takes the profit's, the law will oblige
him to account to the minor for the profits, as his bailiff, in
many cases. Dane's Abr. ch. 8, art. 2; SS 10; Bac. Abr. Account
1; Com. Dig. Accompt, A 3.
4. There is a case which has undergone decisions in our law,
which approaches very near to that of negotionum gestorum. A
master bad gratuitously taken charge of, and received on board of
his vessel a box, containing doubloons and other valuables,
belonging to a passenger, who was to have worked his passage, but
was accidentally left behind. During the voyage, the master
opened the box, in the presence of the passengers, to ascertain
its contents, and whether there were contraband goods in it; and
he took out the contents and lodged them in a bag in his own
chest in his cabin, where his own valuables were kept. After his
arrival in port, the bag was missing. The master was held
responsible for the loss, on the ground that he had imposed on
himself the duty of carefully guarding against all peril to which
the property was exposed by means of the alteration in the place
of custody, although as a bailee without hire, he might not
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otherwise have been bound to take more than a prudent care of
them; and that he had been guilty of negligence in guarding the
goods. 1 Stark. R. 237. See Story, Bailm. §189; Story, Agency,
§142; Poth. Pand. 1. 3, t. 5, n. 1 to L4; Poth. Ob. n. 113; 2
Kent, Com. 616, 3d ed; Ersk. Inst. B. 1, t. 3, SS 52; Stair,
Inst. by Brodie, B. l, t. 8, §3 to 6.
NEIF, old Eng. law. A woman who was born a villain, or a bond
woman.
NEMINE CONTRADICENTE, legislation. These words, usually
abbreviated nem. con., are used to signify the unanimous consent
of the house to which they are applied. In England they are used
in the house of commons; in the house of lords, the words to
convey the same idea are nemine dissentiente.
NEPHEW, dom. rel. The son of a person's brother or sister. Amb.
514; 1 Jacob's Ch. R. 207.
NEPOS. A grandson. This term is used in making genealogical
tables.
NEUTRAL PROPERTY, insurance. The words "neutral property " in a
policy of insurance, have the effect of warranting that the
property insured is neutral; that is, that it belongs to the
citizens or subjects of a state in amity with the belligerent
powers.
2. This neutrality must be complete hence the property of a
citizen or subject of a neutral state, domiciled in the dominions
of one of the belligerents, and carrying on commerce there, is
not neutral property; for though such person continue to owe
allegiance to bis country, and may at any time by returning there
recover all the privileges of a citizen or subject of that
country; yet while he resides in the dominion of a belligerent
he contributes to the wealth and strength of such belligerent,
and is not therefore entitled to the protection of a neutral
flag; and his property is deemed enemy's property, and liable to
capture, as such by the other belligerent. Marsh. Ins. B. 1, c.
9, s. 6; l John. Cas. 363; 3 Bos. & Pull. 207, u. 4; Esp. R.
108; l Caines' R. 60; 16 Johns. R. 128. See also 2 Johns. Cas.
478; 1 Caines' C. Err. xxv.; l Johns. Cas. 360; 2 Johns. Cas.
191.
3. If the warranty of neutrality be false at the time, it is
made, the policy will be void ab initio. But if the 'ship, and
property are neutral at the time when the risk commences, this is
a sufficient compliance with a warranty of neutral property, and
a subsequent declaration of war will not be a breach of it.
Dougl. 705. See 1 Binn. 293; 8 Mass. 308; 14 Johns. R. 308; 5
Binn. 464; 2 Serg. & Rawle, 119; 4 Cranch, 185; 7 Cranch, 506;
2 Dall. 274.
NEUTRALITY, international law. The state of a nation which
takes no part between two or more other. nations at war with each
other.
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2. Neutrality consists in the observance of a strict and honest
impartiality, so as not to afford advantage in the war to either
party; and particularly in so far restraining its trade to the
accustomed course, which is held in time of peace, as not to
render assistance to one of the belligerents in escaping the
effects of the other's hostilities Even a loan of money to one of
the belligerent parties is considered a violation of neutrality.
9 Moore's Rep. 586. A fraudulent neutrality is considered as no
neutrality.
3. In policies of insurance there is frequently a warranty of
neutrality. The meaning of this warranty is, that the property
insured is neutral in fact, and it shall be so in appearance and
conduct; that the property does belong to neutrals; that it is
or shall be documented so as to prove its neutrality, and that no
act of the insured or his agents shall be done which can legally
compromise its neutrality. 3 Wash. C. C. R. 117. See 1 Caines,
548; 2 S. & R. 119; Bee, R. 5; 7 Wheat. 471; 9 Cranch, 205;
2 John. Cas. 180; 2 Dall. 270; 1 Gallis. 274; Bee, R. 67.
4. The violation of neutrality by citizens of the United
States, contrary to the provisions of the act of congress of
April 20, 1818, §3, renders the individual liable to an
indictment. One fitting out and arming a vessel in the United
States, to commit hostilities against a foreign power at peace
with them, is therefore indictable. 6 Pet. 445; Pet. C. C. R.
487. Vide Marsh. Ins. 384 a; Park's Ins. 'Index, h. t.; 1 Kent,
Com. 116; Burlamaqui, pt. 4, c. 5, s. 16 & 17; Bunk. lib. 1, c.
9; Cobbett's Parliamentary Debates; 406; Chitty, Law of Nat.,
Index, h. t.; Mann. Comm. B. 3, c. 1; Vattel, 1. 3, c. 7, SS
104; Martens, Precis. liv. 8, c. 7, SS 306; Boucb. Inst. n.
1826-1831.
NEW. Something not known before.
2. To be patented, an invention must be new. When an invention
has been described in a printed book which has been publicly
circulated, and afterwards a person takes out a patent for it,
his patent is invalid, because the invention was not new, 7 Mann'
& Gr. 818. See New and Useful Invention.
NEW AND USEFUL INVENTION. This phrase is used in tlie act of
congress relating to granting patents for inventions.
2. The invention to be patented must not only be new, but
useful; that is, useful in contradistinction to frivolous or
mischievous inventions. It is not meant that the invention should
in all cases be superior to the modes now in use for the same
purposes. 1 Mason's C. C. R. 182; 1 Mason's C. C. R. 302; 4
Wash. C. C. R. 9: 1 Pet. C, C. R. 480, 481; 1 Paine's C. C. R.
203; 3 Mann. Gr. & Scott, 425. The law as to the usefulness of
the invention is the same in France. Renouard, c. 5, s. 16, n. 1,
page 177.
NEW FOR OLD. A term used in the law of insurance in cases of
adjustment of a loss, when it has been but partial. In making
such adjustment the rule is to apply the old materials towards
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the payment of the new, by deducting the value of them from the
gross amount of the expenses for repairs, and to allow the
deduction of one-third new for old upon the balance. See 1 Cowen,
265; 4 Cowen, 245; 4 Ohio, 284; 7 Pick. 259; 14 Pick. 141.
NEW or NOVEL ASSIGNMENT, pleading. Declarations are conceived
in very general terms, and sometimes, from the nature of the
action, are so framed as to be capable of covering several
injuries. The effect of this is, that, in some cases, the
defendant is not sufficiently guided by the declaration to the
real cause of complaint; and is, therefore, led to apply his
answer to a different matter from that which the plaintiff has in
view. For example, it may happen that the plaintiff has, been
twice assaulted by the defendant, and one of the assaults is
justifiable, being in self-defence, while the other may have been
committed without legal excuse. Supposing the plaintiff to bring
an action for the latter; from the generality of the statement
in the declaration, the defendant is not informed to which of the
two assaults the plaintiff means to refer. The defendant may,
therefore, suppose, or affect to suppose, that the first is the
assault intended, and will plead son assault demesne. This plea
the plaintiff cannot safely traverse, because an assault was in
fact committed by the defendant, under the, circumstances of
excuse here alleged; the defendant would have a right under the
issue joined upon such traverse, to prove these circumstances,
and to presume that such assault, and no other, was the cause of
action. The plaintiff, therefore, in the supposed case, not being
able safely to traverse, and having no ground either for
demurrer, or for pleading in confession and avoidance, has no
course, but, by a new pleading, to correct the mistake occasioned
by the generality of the declaration, and to declare that he
brought his action not for the first but for the second assault
and this is called a new assignment. Steph. PI. 241-243.
2. As the object of a new assignment is to correct a mistake
occasioned by the generality of the declaration, it always occurs
in answer to a plea, and is therefore in the nature of a
replication. It is not used in any other part of the pleading.
3. Several new assignments may occur in the course of the same
series of pleading.
4. Thus in the above example, if it be supposed that three
distinct assaults had been committed, two of which were
justifiable, the defendant might plead as above to the
declaration, and 'then, by way of plea to the new assignment,, he
might again justify, in the same manner, another assault; upon
which it would be necessary for the plaintiff to new-assign a
third; and this upon the first principle by which the first new
assignment was required. 1 Chit. PI. 614; 1 Saund. 299 c.
5. A new assignment is said to be in the nature of a new
declaration. Bac. Abr. Trespass I, 4, 2; 1 Saund. 299 c. It
seems, however, more properly considered as a repetition of the
declaration; 1 Chit. PI. 602; differing only in this, that it
distinguishes the true ground of complaint, as being different
from that which is covered by the plea. Being in the nature of a
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new or repeated declaration, it is consequently to be framed with
as much certainty or specification of circumstances, as the
declaration itself. In some cases, indeed, it should be even more
particular. Bac. Abr. Trespass, I 4, 2; 1 Chitt. Pl. 610;
Steph. Pl. 245. See 3 Bl. Com. 311; Arch. Civ. 318; Lawes' Civ.
PI. Pl. 286; Doct. Pl. 318; Lawes' Civ. Pl. 163.
NEW HAMPSHIRE. The name of one of the original states of the
United States of America. During its provincial state, New
Hampshire was governed, down to the period of the Revolution, by
the authority of royal commissions. Its general assembly enacted
the laws necessary for its welfare, in the manner provided for by
the commission under which they then acted. 1 Story on the Const.
Book, 1, c. 5, §§78 to 81.
2. The constitution of this state was altered and amended by a
convention of delegates, held at Concord, in the said state, by
adjournment, on the second Wednesday of February, 1792.
3. The powers of the government are divided into three
branches, the legislative, the executive, and the judicial.
4. - 1st. The supreme legislative power is vested in the senate
and house of representatives, each of which bas a negative on the
other.
5. The senate and house are required to assemble on the first
Wednesday in June, and at such times as they may judge necessary
and are declared to be dissolved seven days next preceding the
first Wednesday in June. They are styled The General Court of New
Hampshire.
6. - 1. The senate. It will be considered with reference to the
qualifications of the electors the qualifications of the members;
the number of members; the duration of their office; and the
time and place of their election.
7. - 1. Every male inhabitant of each town, and parish with
town privileges, and places unincorporated, in this state, of
twenty-one years of age and upwards, excepting paupers, and
persons excused from paying taxes at their own request, have a
right at the annual or other town meetings of the inhabitants of
said towns and parishes, to be duly warned and holden annually
forever in the month of March, to vote in the town or parish
wherein he dwells, for the senators of the county or district
whereof be is a member.
8. - 2. No person shall be capable of being elected a senator,
who is not seised of a freehold estate, in his own right, of the
value of two hundred pounds, lying within this state, who is not
of the age of thirty years, and who shall not have been an
inhabitant of this state for seven years immediately preceding
his election, and a the time thereof he shall be an inhabitant of
the district for which he shall be chosen.
9. - 3. The senate is to consist of twelve members.
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10. - 4. The senators are to hold their offices from the first
Wednesday in June next ensuing their election.
5. The senators are elected by the electors in the month of
March.
11. - 2. The house of representatives will be considered in
relation to its constitution, under the same divisions which have
been made in relation to the senate.
12. - 1. The electors are the same who vote for senators.
13. - 2. Every member of the house of representatives shall be
chosen by ballot; and for two years at least next preceding his
election, shall have been an inhabitant of this state; shall
have an estate within the district which he may be chosen to
represent, of the value of one hundred pounds, one half of which
to be a freehold, whereof he is seised in his own right; shall
be, at the time of his election, an inhabitant of the district he
may be chosen to represent and shall cease to represent such
district immediately on his ceasing to be qualified as aforesaid.
14. - 3. There shall be in the legislature of this state, a
representation of the people, annually elected, and founded upon
principles of equality; and in order that such representation
may be as equal as circumstances will admit, every town, parish,
or place, entitled to town privileges, having one hundred and
fifty rateable male polls, of twenty-one years of age, and
upwards, may elect one representative; if four hundred and fifty
rateable male polls, may elect two representatives; and so,
proceeding in that proportion, make three hundred such rateable
polls, the mean of increasing number, for every additional
representative. Such towns, parishes, or places, as have less
than one hundred and fifty rateable polls, shall be classed by
the general assembly, for the purpose of choosing a
representative, and seasonably notified thereof. And in every
class formed for the above mentioned purpose, the first annual
meeting shall be held in the town, parish, or place, wherein most
of the rateable polls reside; and afterwards in that which has
the next highest number and so on, annually, by rotation, through
the several towns, parishes, or places forming the district.
Whanever any town, parish, or place entitled to town privileges,
as aforesaid, shall not have one hundred and fifty rateable
polls, and be so situated as to render the classing thereof with
any, other town, parish, or place very inconvenient; the general
assembly may, upon application of a majority of the voters of
such town, parish, or place, issue a writ for their selecting and
sending, a representative to the general court.
15. - 4. The members are to be chosen annually.
16. - 5. The election is to be in the month of March.
17. - 2. The executive power consists of a governor and a
council.
18. - 1. Of the governor. 1. The qualifications of electors of
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governor, are the same as those of senators.
19. - 2. The governor, at the time of his election, must have
been an inhabitant of this state for the seven years next
preceding, be of the age of thirty years, and have an estate of
the value of five hundred pounds, one-half of which must consist
of a freehold in bis own right, within the state.
20. - 3. He is elected annually.
21. - 4. The election is in the month of March.
22. - 5. His general powers and duties are as follows, namely
1. In case of any infectious distemper prevailing in the place
where the general court at any time is to convene, or any other
cause whereby dangers may arise to the health or lives of the
members from their attendance, the governor may direct the
session to be holden at some other. 2. He is invested with the
veto power. 3. He is commander-in-chief of the army and navy, and
is invested with power on this subject very minutely described in
the contitution as follows, namely: The governor of the state
for the time being shall be commander-in-chief of the army and
navy, and all the military forces of this state, by sea and land:
ana shall have full power, by himself or by any chief commander,
or other officer or officers, from time to time, to train,
instruct, exercise and govern the militia and navy; and for the
special defence and safety of this state, to assemble in martial
array, and put in warlike posture the inhabitants thereof, and to
lead and conduct them, and with them encounter, repulse, repel,
resist, and pursue, by force of arms, as well by sea as by land,
within and without the limits of this state; and also to kill,
slay, destroy, if necessary, and conquer by all fitting ways,
enterprise and means, all and every such person and persons as
shall at any time hereafter in a hostile manner attempt or
enterprise the destruction invasion, detriment, or annoyance of
this state; and to use and exercise over the army and navy, and
over the militia in actual service, the law martial in time of
war, invasion, and also in rebellion, declared by the legislature
to exist, as occasion shill necessarily require. And surprise, by
all ways and means whatsoever, all and every such person or
persons, with their ships, arms, ammunition, and other goods, as
shall in a hostile manner invade, or attempt the invading,
conquering, or annoying this state: And, in fine, the governor
is hereby entrusted with all other powers incident to the office
of captain-general and commander-in-chief, and admiral, to be
exercised agreeably to the rules and regulations of the
constitution, and the laws of the land: Provided, that the
governor shall not at any, time hereafter, by virtue of any power
by this constitution granted, or hereafter to be granted to him
by the legislature, transport any of the inhabitants of this
state, or oblige them to march out of the limits of the same,
without their free and voluntary consent, or the consent of the
general court, nor grant commissions for exercising the law
martial in any case, without the advice and consent of the
council.
23. Whenever the chair of the governor shall become vacant, by
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reason of* his death, absence from the state or otherwise, the
president of the senate shall, during such 'Vacancy, have and
exercise all the powers and authorities which, by this
constitution, the governor is vested with, when personally
present; but when the president of the senate shall exercise the
office of governor, he shall not hold his office in the senate.
24. - 2. The council. 1. This body is elected by the
freeholders and other inhabitants qualified to vote for senators.
2. No person shall be capable of being elected a councillor who
has not an estate of the value of five hundred pounds within this
state, three hundred pounds of which (or more) shall be a
freehold in his own right, and who is not thirty years of age;
and who shall not have been in inhabitant of this state for seven
years immediately preceding his election; and at the time of his
election an inhabitant of the county in which he is elected. 3.
The council consists of five mem bers. 4. They are elected
annually. 5. The election is in the month of March. 6. Their
principal duty is to advise the governor.
25.-3. The governor and council jointly. Their principal,
powers and duties are as follows: 1. They may adjourn the
general court not exceeding ninety days at one time, when the two
houses cannot agree as to the time of adjournment. 2. They are
required to appoint all judicial officers, the attorney-general,
solicitors, all sheriffs, coroners, registers of probate, and all
officers of the navy, and general and field officers of the
militia; in these cases the governor and council have a negative
on each other. 3. They have the power of pardoning offences,
after conviction, except in cases of impeachment.
26. - 2d. The judicial power is distributed as follows:
The tenure that all commissioned officers shall have by law in
their offices, shall be expressed in their respective commissions
all judicial officers, duly appointed, commissioned and sworn,
shall hold. their offices during good behaviour, excepting those
concerning whom there is a different provision made in this
constitution: Provided, nevertheless, the governor, with consent
of council, may remove them upon the address of both houses of
the legislature.
27. Each branch of the legislature, as well as the governor and
council, shall have authority to require the opinions of the
justices of the superior court, upon important questions of law,
and upon solemn occasions.
28. In order that the people play not suffer from the long
continuance in, place of any justice of the peace, who shall fail
in discharging the important duties of his office with ability
and fidelity, all commissions of justices of the peace shall
become void at the expiration of five years from their respective
dates; and upon the expiration of any commission, the same may,
if necessary, be renewed, or another person appointed, as shall
most conduce to the well being of the state.
29. All causes of marriage, divorce, and alimony, and all
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appeals from the respective judges of probate, shall be heard and
tried by the superior court until the legislature shall by law
make other provision.
30. The general court are empowered to give to justices of the
peace jurisdiction in civil causes, when the damages demanded
shall not exceed four pounds, and title of real estate is not
concerned but with right of appeal to either party, to some other
court, so that a trial by jury in the last resort may be had.
31. No person shall hold the office of a judge in any court, or
judge of probate, or sheriff of any county, after he has attained
the age of seventy years.
32. No judge of any court, or justice of the peace, shall act
as attorney, or be of counsel, to any Party, or originate any
civil suit, in matters which shall come or be brought before him
as judge, or justice of the peace.
33. All matters relating to the probate of wills, and granting
letters of administration, shall be exercised by the judges of
probate, in such manner as the legislature have directed, or may
hereafter direct; and the judges of probate shall hold their
courts at such place or places, on such fixed days as the
conveniency of the people may require, and the legislature from
time to time appoint.
34. No judge or register of probate, shall be of counsel, act
as advocate, or receive any fees as advocate or counsel, in any
probate business which is pending or may be brought into any
court of probate in the county of which he is judge or register.
NEW JERSEY. The name of one of the original states of the
United States of America. This state, when it was first settled,
was divided into, two provinces, which bore the names of East
Jersey and West Jersey. They were granted to different
proprietaries. Serious dissensions having arisen between them,
and between them and New York, induced the proprietaries of both
provinces to make a formal surrender of all their powers of
government, but not of their lands, to Queen Anne, in April,
1702; they were immediately reunited in one province, and
governed by a governor appointed by the crown, assisted by a
council, and an assembly of the representatives of the people,
chosen by the freeholders. This form of government continued till
the American Revolution.
2. A constitution was adopted for New Jersey on the second day
of July, 1776, which continued in force till the first day of
September, 1844, inclusive. A convention was assembled at Trenton
on the 14th of May, 1844; it continued in, session till the 29th
day of Tune, 1844, when the new constitution was adopted, and it
is provided by art. 8, s. 4, that this constitution shall take
effect and go into operation on the second day of September,
1844.
3. By art. 3, the powers of the government are divided into
three distinct department, the legislative, executive and
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judicial. It further provided that no person or persons belonging
to, or constituting one of these departments, shall exercise any
of the powers properly belonging to either of the others, except
therein expressed.
4. - §1. The legislative power shall be vested in a senate and
general assembly. Art. 4, s. 1, n. 1.
5. - 1st. In treating of the senate, it will be proper to
consider, 1. The of senators. 2. Of the electors of senators. 3.
Of the number-of senators. 4. Of the time for which they are
elected.
6. - 1. No person shall be a member of the senate, who shall
not have attained the age of thirty years, and have been a
citizen and inhabitant of the state for four years, and of the
county for which he shall be chosen one year, next before his
election. And he must be entitled to suffrage at the time of his
election. Art. 4, s. 1, n. 2.
7. - 2. Every white male citizen of the United States, of the
age of twenty-one years, who shall have been a resident of this
state one year, and of the county in which he claims his vote
five months next before the election, shall be entitled to vote
for all officers that now are, or hereafter may be elective by
the people; provided, that no person in the military, naval, or
marine service of the United States, shall be considered a
resident in this state, by, being stationed in any garrison,
barrack, or military or naval place or station within this state;
and no pauper, idiot, insane person, or person convicted of a
crime which now excludes him from being a witness, unless
pardoned or restored by law to the right of suffrage, shall enjoy
the right of an elector.
8.-3. The senate shall be composed of one senator from each
county in the state. Art-. 4, s. 2, n. 1.
9. - 4. The senators are elected on the second Tuesday of
October, for three years. Art. 4, s. 2, n. 1. As soon as the
senate shall meet after the first election to be held in
pursuance of this constitution, they shall be divided, as equally
as may be, into three classes. The seats of the, senators of the
first class shall be vacated at the expiration of the first year;
of the second class at the expiration of the second year; and of
the third class at the expiration of the third year; so that one
class may be elected every year; and if vacancies happen, by
resignation or otherwise, the person elected to supply such
vacancies shall be elected for the unexpired terms only. Art. 4,
s. 2, n. 2.
10. - 2d. The general assembly will be considered in the same
order that has been observed in speaking of the senate.
11. - 1. No person shall be a member, of the general assembly,
who shall not have attained the age of twenty-one years, and have
been a citizen and inhabitant of the state for two years, and of
the county for which he shall be chosen one year next before his
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election. He must be entitled to this right of suffrage. Art. 4,
s. 1, n. 2.
12. - 2. The same persons who elect senators elect members of
the general assembly.
13. - 3. The general assembly shall be composed of members
annually elected by the legal voters of the counties,
respectively, who shall be apportioned among the said counties as
nearly as may be according to the number of their inhabitants.
The present apportionment shall continue until the next census of
the United States shall have been taken, and an apportionment of
members of the general assembly shall be made by the legislature,
at its first session after the next and every subsequent
enumeration or census, and when made shall remain unaltered until
another enumeration shall have been taken; provided, that each
county shall at all times be entitled to one member: and the
whole number of members shall never exceed sixty.
14. - 4. Members of the legislature are elected yearly on the
second Tuesday of October.
15. - 3d. The powers of the respective houses are as follows:
16. - 1. Each house shall direct writs of election for
supplying vacancies, occasioned by death, resignation,
or:otherwise; but if vacancies occur during the recess of the
legislature, the writs may be issued by the governor, under such
regulations as may be prescribed by law.
17. - 2. Each house shall be the judge of the elections,
returns, and qualifications of its own members, and a majority of
each shall constitute a quorum to do business; but a smaller
number may adjourn from day to day, and may be. authorized to
compel the attendance of absent members, in such manner and under
such penalties as each house may provide.
18. - 3. Each bouse shall choose its own officers, determine
the rules of its proceedings, punish its members for disorderly
behaviour, and, with the concurrence of two-thirds, may expel a
member.
19. - 4. Each house shall keep a journal of its proceedings,
and from time to time publish the same; and the yeas and nays of
the members of either house, on any question, shall, at the
desire of one-fifth of those present, be entered on the journal.
20. - 5. Neither house, during the session of the legislature,
shall, without the consent of the other, adjourn for more than
three days, nor to any other place than that in which the two
houses shall be sitting.
21. - 6. All bills and joint resolutions shall be read three
time; in each house, before the final passage thereof; and no
bill or joint resolution shall pass, unless there be a majority
of all the members of each house personally present and agreeing
thereto: and the yeas and nays of members voting on such final
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passage shall be entered on the journal.
22. - 7. Members of the senate and general assembly shall
receive a compensation for their services, to be ascertained by
law, and paid out of the treasury of the state; which
compensation shall not exceed the sum of three dollars per day
for the period of forty days from the commencement of the
session; and shall not exceed the sum of one dollar and fifty
cents per day for the remainder of the session. When convened in
extra session by the governor, they shall receive such sum as
shall be fixed for the first forty days of the ordinary session.
They shall also receive the sum of one dollar for every ten miles
they shall travel, in going to and returning from their place of
meeting, on the most usual route. The president of the senate,
and the speaker of the house of assembly shall, in virtue of
their offices, receive an additional compensation equal to
one-third of their per diem allowance as members.
23. - 8. Members of the senate and of the general assembly
shall, in all cases except treason, felony, and breach of the
peace, be privileged from arrest during their attendance at the
sitting of their respective houses, and in going to and returning
from the same: and for any speech or debate, in either house,
they shall not be questioned in any other place.
24. - §2. By the fifth article of the constitution, the
executive power is vested in a governor. It will be convenient to
consider, 1. The qualifications of the governor. 2. By whom he is
elected. 3. The duration of his office. 4. His powers: and 5.
His salary.
25. - 1. The governor shall be not less than thirty years of
age, and shall have been for twenty years, at least, a citizen of
the United States, and a resident of this state seven years next
before his election, unless be shall have been absent during that
time on the public business of the United States or of this
state.
26. - 2. He is chosen by the legal voters of the state.
27. - 3. The governor holds his office for three years, to
commence on the third Tuesday of January next ensuing the
election of governor by the people, and to end on the Monday
preceding the third Tuesday of January, three years thereafter;
and he cannot nominate nor appoint to office during the last week
of his term. He is not reeligible without an intermission of
three years. Art. 5, n. 3.
28. - 4. His powers are as follows: He shall be the
commander-in-chief of all the military and naval forces of the
state; he shall have power to convene the legislature, whenever,
in his opinion, public necessity requires it; he shall
communicate, by message, to the legislature, at the opening of
each session, and at such other times as he may deem necessary,
the condition of the state, and recommend such measures as he may
deem expedient; he shall take care that the laws be faithfully
executed, and grant, under the great seal of the state,
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commissions to all such officers as shall be required to be
commissioned.
29. Every bill which shall have passed both houses shall be
presented to the governor: if he approve, he shall sign it, but
if not, he sball return it, with his objections, to the house in
which it shall have originated, who shall enter the objections at
large on their journal, and proceed to reconsider it; if, after
such reconsideration, a majority of the whole number of that
house shall agree to pass the bill, it shall be sent, together
with the objections, to the other house, by which it shall
likewise be reconsidered, and if approved of by a majority of the
whole number of that house, it shall become a law; but in
neither house shall the vote be taken on the same day on which
the bill shall be returned to it; and in all such cases the
votes of both houses shall be determined by yeas and nays, and
the names of the persons voting for and against the bill shall be
entered on the journal of each house respectively. If any bill
shall not be returned by the governor, within five days (Sunday
excepted) after it shall have been presented to him, the same
shall be a law, in like manner as if he had signed it, unless the
legislature, by their adjournment, prevent its return, in which
case it shall not be a law.
30. The governor, or person administering the government, shall
have power to suspend the collection of fines and forfeitures,
and to grant reprieves, to extend until the expiration of a time
not exceeding ninety days after conviction but this power shall
not extend to cases of impeachment.
31. The governor, or person administering the government, the
chancellor, and the six judges of the court of errors and
appeals, or a major part of them, of whom the governor or person
administering the government shall be one, may remit fines and
forfeitures, and grant pardons after conviction, in all cages
except impeachment.
32. - 5. The governor shall, at stated times, receive for his
services a compensation which shall be neither increased nor
diminished during 'the period for which be shall have been
elected.
33. - §3. The judicial power shall be vested in a court of
errors and appeals in the last resort in all causes, as
heretofore; a court for the trial of impeachments; a court of
chancery; a prerogative court; a supreme court; circuit
courts, and such inferior courts as now exist, and as may be
hereafter ordained and established by law; which inferior courts
the legislature may alter or abolish, as the public good shall
require.
34. - 1. The court of errors and appeals shall consist of the
chancellor, the justices of the supreme court, and six judges, or
a major part of them; which judges are to be appointed for six
years.
35. - 2. Immediately after the court shall first assemble, the
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six judges shall arrange themselves; in such manner that the
seat of one of them shall be vacated every year, in order that
thereafter one judge may be annually appointed.
36.- 3. Such of the six judges as shall attend the court shall
receive, respectively, a per diem compensation, to be provided by
law.
37. - 4. The secretary of state shall be the clerk of this
court.
38. - 5. When an appeal from an order or decree shall be heard,
the chancellor shall inform the court, in writing, of the reasons
for his order or decree but he shall not sit as a member, or have
a voice in the hearing or final sentence.
39. - 6. When a writ of error shall be brought, no justice who
has given a judicial opinion in the cause, in favor of or against
any error complained of, shall sit as a member, or have a voice
on the hearing, or for its affirmance or reversal; but the
reasons for such opinion shall be assigned to the court in
writing.
40. - 1. The house of assembly shall have the sole power of
impeaching, by a vote of a majority of all the members; and all
impeachments shall be tried by the senate: the members, when
sitting for that purpose, to be on oath or affirmation "truly and
impartially to try and determine the charge in question according
to evidence:" and no person shall be convicted without the
concurrence of two-thirds of all the members of the senate.
41. - 2. Any individual officer impeached shall be suspended
from exercising his office until bis acquittal.
42. - 3. Judgment, in cases of impeachment, shall not extend
farther than. to removal from, office and to disqualification to
hold and enjoy any office of honor, profit, or trust under this
state; but the party convicted shall nevertheless be liable to
indictment, trial, and punishment, according to law.
43. - 4. The secretary of state shall be the clerk of this
court.
44. - 1. The court of chancery shall consist of a chancellor.
45. - 2. The chancellor shall be the ordinary, or
surrogate-general, and judge of the prerogative court.
46. - 3. All persons aggrieved by any order, sentence, or
decree of the orphans' court may appeal from the same, or from
any part thereof, to the prerogative court; but such order,
sentence, or decree shall not be removed into the supreme court,
or circuit court if the subject matter thereof be within the
jurisdiction of the orphans' court.
47. - 4. The secretary of state shall be the register of the
prerogative court, and shall perform the duties required of him
by law in that respect.
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48. - 1. The supreme court shall consist of a chief justice and
four associate justices. The number of associate justices may be
increased or decreased by law, but shall never be less than two.
49. - 2. The circuit courts shall be held in every county of
this state, by one or more of the justices of the supreme court,
or a judge appointed for that purpose; and shall in all cases
within the county, except in those of a criminal nature, have
common law jurisdiction concurrent with the supreme court; and
any final judgment of a circuit court may be docketed in the
supreme court, and shall operate as a judgment obtained in the
supreme court, from the time of such docketing.
50. - 3. Final judgments in any circuit court may be brought by
writ of error into the supreme court, or directly into the court
of errors and appeals.
51. - 1. There shall be no more than five judges of the
inferior court of common pleas in each of the counties in this
state after the terms of the judges of said court now in office
shall terminate. One judge for each county shall be appointed
every year, and no more, except to fill vacancies, which shall be
for the unexpired term only.
52. - 2. The commissions for the first appointments of judges
of said court shall bear date and take effect on the first day of
April next; and an subsequent commissions for judges of said
court shall bear date and take effect on the first day of April
in every successive year, except commissions to fill vacancies,
which shall hear date and take effect when issued.
53. - 1. There may be elected under this constitution two, and
not more than five, justices of the peace in each of the
townships of the several counties of this state, and in each of
the wards, in cities that may vote in wards. When a township or
ward contains two thousand inhabitants or less, it may have two
justices; when it contains more than two thousand inhabitants,
and not more than four thousand, it may have four justices; and
when it contains more than four thousand inhabitants, it may
have, five justices; provided, that whenever any township, not
voting in wards, contains more than seven thousand inhabitants,
such township) may have an additional justice for each additional
three thousand inhabitants above four thousand.
54. - 2. The population of the townships in the several
counties of the state and of the several wards shall be
ascertained by the lost preceding census of the United States,
until the legislature shall provide by law some other mode of
ascertaining it.
NEW MATTER, pleading. All facts alleged in pleading, which go
in avoidance of what is before, pleaded, on the opposite side,
are called new matter. In other words, every allegation made in
the pleadings, subsequent to the declaration, and which does not
go in denial of what is before alleged on the other side, is an
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allegation of new matter; generally, all new matter must be
followed by a verification. (q. v.) Gould, Pl. c. 3, §195; 1
Saund. 103, n. 1; Steph. PI. 251; Com. Dig. Pleader, E 32; 2
Lev. 5; Vent. 121; 1 Chit. PI. 538; 3 Bouv. Inst. n. 2983. In
proceedings in equity, when new matter has been discovered by
either plaintiff or defendant, before a decree has been
pronounced, a cross bill has been permitted to bring such matter
before, the court to answer the purposes of justice. After the
answer has been filed, it cannot be introduced by amendment; the
only way to introduce it, is by filing a supplemental bill. 4
Bouv. Inst. n. 4385 - 87; 1 Paige 200; Harring. Ch. 438.
NEW PROMISE. A contract made, after the original promise has
for some cause been rendered, invalid, by which the promiser
agrees to fulfil such original promise.
2. When a debtor has been discharged under the bankrupt laws,
the remedy against him is clearly gone, so when an infant has
made a contract prejudicial to his interest, he may avoid it;
and when by lapse of time a debt is barred by the act of
limitations, the debtor may take advantage of the act, but in all
these cases there remains a moral obligation, and if the original
promiser renews the contract by a new promise, this is a
sufficient consideration. See 8 Mass. 127; 2 S. & It. 208; 2
Rawle, 351; 5 Har. & John. 216; 2 Esp. C. 736; 2 H. Bl. 116;
8 Moore, 261; 1 Bing. 281; 1 Dougl. 192; Cowp. 544; Bac. Ab.
Infancy and A e, I; Bac. Ab. Limitation of actions, E 85
3. Formerly the courts construed the slightest admission of the
debtor as evidence of a new promise to pay; but of late years a
more reasonable construction is put upon men's contracts, and the
promise must be express, or at least, the acknowledgment of
indebtedness must not be inconsistent with a promise to pay. 4
Greenl. 41, 413; 2 Hill's S. C. 326; 2 Pick. 368; 1 South.
153; 14 S. & R. 195; 1 McMull. R. 197; 3 Harring. 508; 7
Watts & Serg. 180; 10 Watts, 172; 6 Watts & Serg. 213; 5 Shep.
349; 5 Smed. & Marsh. 564; 1 Bouv. Inst. n. 866.
NEW TRIAL, practice, A reexamination of an issue in fact,
before a court and jury, which had been tried, at least once,
before the same court and a jury.
2. The origin of the practice of granting new trials is
concealed in the night of time.
3. Formerly new trials could be obtained only with the greatest
difficulties, but by the modern practice, they are liberally
granted in furtherance of justice.
4. The reasons for granting new trials are numerous, and may be
classed as follows; namely:
1. Matters which arose before and in the course of trial. These
are, 1st. Want of due notice. Justice requires that the defendant
should have sufficient notice of the time and place of trial;
and the want of it, unless it has been waived by an appearance,
and making defence, will, in general, be sufficient to entitle
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the defendant to a new trial. Bull., N. P. 327; 3 Price's Ex. R.
72; 3 Dougl. 402; 1 Wend. R. 22. But the insufficiency of the
notice must have been calculated reasonably to mislead the
defendant. 7 T. R. 59. 2d, The irregular impanneling of the jury;
for example, if a person not duly qualified to serve be sworn: 4
T. R. 473; or if a juror not regularly summoned and returned
personate another. Willes, 484; S. C. Barnes, 453. In
Pennsylvania, by statutory, provision, going on to trial will
cure the defect, both in civil and criminal cases. 3d. The
admission of illegal testimony. 3 Cowen's Rep. 712 2 Hall's R.
40. 4 Chit. Pr. 33 4th. The rejection of legal testimony. 6 Mod.
242; 3 B. & C. 494; 1 Bingh. R. 38; 1 John. IR,. 508; 7 Wend.
R. 371; 3 Mass. 124; 6 Mass. R. 391. But a new trial will not
be granted for the rejection of a witness on the supposed ground
of incompetency, when another witness establishes the same fact,
and it is not disputed by the other side. 2 East, R. 451; and
see other exceptions in 1 John. R. 509; 4 Ohio Rep. 49; 1
Charlt. B. 227; 2 John. Cas. 318. 5th. The misdirection of the
judge. Vide article Misdirection, and 4 Chit. Pr. 38.
5. - 2. The acts of the prevailing party, his agents or
counsel. For example, when papers, not previously submitted, are
surreptitiously handed to the jury, being material on the point
in issue. Co. Litt. 227; 1 Sid. 235; 4 W. C. C. R. 149. Or if
the party, or one on his behalf, directly approach a juror on the
subject of the trial. Cro. Eliz. 189; 1 Serg. & Rawle, 169; 7
Serg. & Rawle, 358; 4 Binn. 150; 13 Mass. R. 218; 2 Bay R. 94;
6 Greenl. R. 140. But if the other party is aware of such
attempts, and he neglects to correct them when in his power, this
will not be a sufficient reason for granting a new trial. 11 Mod.
118. When indirect measures have been resorted to, to prejudice
the jury; 3 Brod. & Bing. 272; 7 Moore's R. 87; 7 East, R.
108; or tricks practiced; 11 Mod. 141; or disingenuous
attempts to suppress or stifle evidence, or thwart the
proceedings, or to obtain an unconscientious advantage, or to
mislead the court and jury, they will be defeated by granting a
new trial. Grah. N. T. 56; 4 Chit. Pr. 59.
6. - 3. The misconduct of the jury, as if they acted in
disregard of their oaths; Cro. Eliz. 778; drinking spirituous
liquors, after being charged with the cause; 4 Cowen's R. 26; 7
Cowen's R. 562; or resorting to artifice to get rid of their
confinement; 5 Cowen's R. 283; and such like causes will avoid
a verdict. Bunb. 51; Barnes, 438; 1 Str. 462; 2 Bl. R. 1299;
Comb. 357; 4 Chit. Pr. 48 to 55. See, t's to the nature of the
evidence to be received to prove misconduct of the jury, 1 T. R.
11; 4 Binn. R. 150; 7 S. & R. 458.
7. - 4. Cases in which the verdict is improper, because it is
either void, against law, against evidence, or the damages are
excessive. 1. When the verdict is contrary to the record; 2
Roll. 691; 2 Co. 4; or it finds a matter entirely out of the
issue; Hob. 53; or finds only a part of the issue; Co. Litt.
227; or when it is uncertain; 8 Co. 65; a new trial will be
granted. 2. When the verdict is. clearly against law, and
injustice has been done, it will be set aside. Grah. N. T. 341,
356. 3. And so will a verdict be set aside if given clearly
Bouvier's Law Dictionary : N1 : Page 41 of 88
against evidence, and the presiding judge is dissatisfied. Grah.
N. T. 368. 4. When the damages are excessive, and appear to have
been given in consequence of prejudice, rather, than as an act of
deliberate judgment. Grah. N. T. 410; 4 Chit. Pr. 63; 1 M. & G.
222; 39 E. C. L. R. 422.
8. - 5. Cases in which the party was deprived of his evidence
by accident or because he was not aware of it. The non-attendance
of witnesses, their mistakes, their interests, their infirmities,
their bias, their partial or perverted views of facts, their
veracity, their turpitude, pass in review, and in proportion as
they bear upon the merits avoid or confirm the verdict. The
absence of a material piece of testimony or the non-attendance of
witnesses, contrary to reasonable expectation, and reasonably
accounted for, will induce the court to set aside the verdict,
and grant a new trial; 6 Mod. 22 11 Mod. 1; 2 Chit. Rep. 195;
14 John. R. 112; 2 John. Cas. 318; 2 Murph, R. 384; as, if the
witness absent himself with out the party's knowledge after the
cause is called on,; 14 John. R. 112; or is suddenly taken
sick; 1 McClell. R. 179 and the like. The court will also grant
a new trial, when the losing party has discovered material
evidence since the trial, which would probably produce, a
different result; this evidence must be accompanied by proof of
previous diligence to procure it. To succeed, the applicant must
show four things: 1. The names of the new witnesses discovered.
2. That the applicant has been diligent in preparing, his cage
for trial. 3. That the new facts were discovered after the trial
and will be important. 4. That the evidence discovered will tend
to prove facts which were not directly in, issue on the trial, or
were not then known and investigated by proof. 8 J. J. Marsh. R.
521; 2 J. J. Marsh. R. 52; 5 Serg. & Rawle, 41; 6 Greenl. R.
479; 4 Ohio Rep. 5; 2 Caines' R. 155; 2 W. C. C. R. 411; 16
Mart. Louis. Rep. 419; 2 Aiken, Rep, 407; 1 Haist. R. 434;
Grah. N. T. ch. 13.
9. New trials may be granted in criminal as well as in civil
cases, when the defendant is convicted, even of the highest
offences. 3 Dall. R. 515; 1 Bay, R. 372; 7 Wend. 417; 5 Wend.
39. But when the defendant is acquitted, the humane influence of
the law, in cases of felony, mingling justice with mercy, in
favorem vitae et libertatis, does not permit a new trial. In
cases of misdemeanor, after conviction a new trial may be granted
in order to fulfil the purpose of substantial justice; yet,
there are no instances of new trials after acquittal, unless in
cases where the defendant has procured his acquittal by unfair
practices. 1 Chit. Cr. Law, 654; 4 Chit. Pr. 80. Vide,
generally, 21 Vin. Ab. 474 to 493; 3 Chit. Bl. Co 387, n.; 18
E. C. L. R. 74, 334; Bac. Ab. Trial, L; 1 Sell. Pr. 482;
Tidd's Pr. 934, 939; Graham on New Trials 3 Chit. Pr. 47;
Dane's Ab. h. t.; Com. Dig. Pleader, IR. 17; 4 Chitty's
Practice, part 7, ch. 3. The rules laid down to authorize the
granting of new trials in Louisiana, will be found in the Code of
Practice, art. 557 to 563.
NEW WORK. In Louisiana, by a new work is understood every sort
of edifice or other work, which is newly commenced on any ground
whatever.
Bouvier's Law Dictionary : N1 : Page 42 of 88
2. When the ancient form of the work is changed, either by an
addition being made to it, or by some part of the ancient work
being taken away, it is styled also a new work. Civ. Code of Lo.
852; Puff. b. 8 , c. 5, SS 3; Nov. Rec. L. 1, tit. 32; Asso y
Manuel, b. 2, tit. 6, p. 144.
NEW YORK. The name of one of the original states of the United
States of America. ln its colonial condition this state was
governed from the period of the revolution of 1688, by governors
appointed by the crown assisted by a council, which received its
appointments also from the parental government, and by the
representatives of the people. 1 Story, Const. B. 1, ch. 10.
2. The present constitution of the state was adopted by a
convention of the people, at Albany, on the ninth day of October,
1846, and went into force from and including the first day of
January, 1847. The powers of the government are distributed among
three classes of magistrates, the legislative, the executive, and
the judicial;
3. - §1. The legislative power is vested in a senate and
assembly. By the second article, section first, of the
constitution, the qualifications of the electors are thus
described, namely:: Every male citizen of the age of twenty- one
years, who shall have been a citizen for ten days, and an
inhabitant of this state one year next, preceding any election,
and for the last four months a resident of the county where he
may offer bis vote, shall be entitled to vote at such election in
the election district of which he shall at the time be a
resident, and not elsewhere, for all officers that now are or
hereafter may be elective by the people; but such citizen shall
have been for thirty days next preceding the election, a resident
of the district from which the officer is to be chosen for whom
he offers his vote. But no man of color, unless he shall have
been for three years a citizen of this state, and for one year
next preceding any election shall have been seised and possessed
of a freehold estate of the value of two hundred and fifty
dollars, over and above all debts and incumbrances, charged
thereon, and shall have been actually rated and paid a tax
thereon, shall be entitled to vote at such election. And no
person of color shall be subject to direct taxation unless he
shall be seised and possessed of such real estate as aforesaid.
4. The third article provides as follows Sect. 6. The members
of the legislature sliall receive for their services, a sum not
exceeding tbree dollars a day, from the commencement of the
session; but such pay shall not exceed in the aggregate, three
hundred dollars for per them allowance, except in proceedings for
impeachment. The limitation as to the aggregate compensation
shall not take effect until the year one thousand eight hundred
and forty - eight. When convened in extra session by the
governor, they shall receive three dollars per day. They sliall
also receive the sum of one dollar for every ten miles they shall
travel, in going to and returning from their place of meeting on
the most usual route. The speaker of the assembly shall, in
virtue of his office, receive an additional compensation equal to
one-third of his per them allowance as a member.
Bouvier's Law Dictionary : N1 : Page 43 of 88
Sect. 7. No member of the legislature shall receive any civil
appointment within this state, or to the senate of the United
States, from the governor, the governor and senate, or from the
legislature, during the term for which he shall have been
elected; and all such appointments, and all votes given for any
such member, for any such office or appointment, shall be void.
Sect. 8. No person being a member of congress, or holding any
judicial or military office under the United States, shall hold a
seat in the legislature. And if any person shall, after his
election as a member of the legislature, be elected to congress,
or appointed to any office, civil or military, under the
government of the United States, his acceptance thereof shall
vacate his seat.
Sect. 9. The elections of senators and members of assembly,
pursuant to the provisions of this constitution, shall be held on
the Tuesday succeeding the first Monday of November, unless
otherwise directed by the legislature.
Sect. 10. A majority of each house shall constitute a quorum to
do business. Each house sliall determine the rules of its own
proceedings, and be the judge of the elections, returns and
qualifications of its own members, shall choose its own officers,
and the senate shall choose a temporary president, when the
lieutenant. governor shall not attend as president, or shall act
as governor.
Sect. 11. Each house shall keep a journal of its proceedings,
and publish the same, except such parts as may require secrecy.
The doors of each house shall be kept open, except when the
public welfare shall require secrecy. Neither house shall,
without the consent of the other, adjourn for more than two days.
Sect. 12. For any speech or debate in either house of the,
legislature, the members shall not be questioned in any other
place.
5. - 1. The senate consists of thirty - two members, chosen by
the electors. The state is divided into thirty - two districts,
and each district elects one senator.
6. Senators are chosen for two years.
20 7. - 2. The assembly shall consist of one hundred and
twenty-eight members. Art. 3, s. 2.
8. The state shall be divided into assembly districts as
provided by the fifth section of the third article of the
constitution as follows:
The members of assembly shall be apportioned among the several
counties of this state, by the legislature, as nearly as may be,
according to the number of their respective inhabitants,
excluding aliens, and persons of color not taxed, and shall be
chosen by single districts.
Bouvier's Law Dictionary : N1 : Page 44 of 88
"The several boards of supervisors in such counties of this
state, as are now entitled to more than one member of assembly,
shall assemble on the first Tuesday of January next, and divide
their respective counties into assembly districts equal to the
number of members of assembly to which such counties are now
severally entitled by law, and shall cause to be filed in the
offices of the secretary of state and the clerks of their
respective counties, a description of such assembly districts,
specifying the number of each district and the population
thereof, according to the last preceding state enumeration, as
near as can be ascertained. Each assembly district shall contain,
as nearly as may be, an equal number of inbabitants, excluding
aliens and persons of color not taxed, and shall consist of
convenient. and contiguous territory; but no town shall be
divided in the formation of assembly districts.
"The legislature, at its first session after the return of
every enumeration, shall re-apportion the members of assembly
among the several counties of this state, in manner aforesaid,
and the boards of supervisors in such counties as, may be
entitled, under such reapportionment, to more than one member,
shall assemble at such time as the legislature making such
reapportionment shall prescribe, and divide such counties into
assembly districts, in the manner herein directed and the
apportionment and districts so to be made, shall remain unaltered
until another enumeration shall be taken under the provisions of
the preceding section.
"Every county heretofore established and separately organized,
except the county of Hamilton, shall always be entitled to one
member of the assembly, and no new county shall be hereafter
erected, unless its population shall entitle it to a member.
" The county of Hamilton shall elect with the county of Fulton,
until the population of the county of Hamilton shall, according
to the ratio, be entitled to a member."
9. The members of assembly are elected annually.
10. - §2. The fourth article vests the executive power as
follows:
" Sect. 1. The executive power shall be vested in a governor,
who shall hold his office for two years; a lieutenant governor
shall be chosen at the same time, and for the same term.
" Sect. 2. No person except a citizen of the United States,
shall be eligible to the office of governor; nor shall any
person be eligible to that office, who shall not have attained
the age of thirty years, and who shall not have been five years
next preceding his election, a resident within this state.
" Sect. 3. The governor and lieutenant governor shall be elected
at the times and places of choosing members of the assembly. The
persons respectively having the highest number of votes for
governor and lieutenant governor, shall be elected; but in case
Bouvier's Law Dictionary : N1 : Page 45 of 88
two or more shall have an equal and the highest number of votes
for governor, or for lieutenant governor, the two houses of the
legislature at its next annual session, shall, forthwith, by
joint ballot, choose one of the said persons so having an equal
and the highest number of votes for governor or lieutenaut
governor.
" Sect. 4. The governor shall be commander-in-chief of the
military and naval forces of the state. He shall have power to
convene the legislature (or the senate only) on extraordinary
occasions. He shall communicate by message to the legislature at
every session, the condition of the state, and recommend such
matters to them as be shall judge expedient. He shall transact
all necessary business with the officers of government, civil and
military. He shall expedite all such measures, as may be resolved
upon by the legislature, and shall take care that the laws are
faithfully executed. He shall, at stated times, receive for his
services, a compensation to be established by law, which shall
neither be increased nor diminished after his election and during
his continuance in office.
" Sect. 5. The governor shall have the power to grant reprieves,
commutations and pardons after conviction, for all offences
except treason and cases of impeachment, upon such conditions,
and with such restrictions and limitations, as he may think
proper, subject to such regulation as may be provided by. law
relative to the maniaer of applying for pardons. Upon conviction
for treason, he shall have power to suspend the execution of the
sentence, until the Oft - - e shall be reported to the
legislature at its next meeting, when the legislature shall
either pardon, or commute the sentence, direct the execution of
the sentence, or grant a further reprieve. He sliall annually
communicate to the legislature each case of reprieve, commutation
or pardon granted stating the name of the convict, the crime of
which he was convicted, the sentence and its date, and the date
of the commutation, pardon or reprieve.
"Sect. 6. In case of the impeachment of the governor, of his
removal from office, death, inability to discharge the powers and
duties of the said office, resignation or absence from the state,
the powers and duties of the office shall devolve upon the
lieutenant governor for the residue of the term, or until the
disability shall cease. But when the governor shall, with the
consent of the legislature, be out of the state in time of war,
at the head of a military force thereof, he shall continue
commander-in-chief of all the military force of the state.
"Sect. 7. The lieutenant governor shall possess the same
qualifications of eligibility for office as the governor. He
shall be president of the senate, but shall have only a casting
vote therein. If during a vacancy of the office of governor, the
lieutenant governor shall be impeached, displaced, resign, die,
or become incapable of performing the duties of his office, or be
absent from the state, the president of the senate shall act as
governor, until the vacancy be filled, or the disability shall
cease.
Bouvier's Law Dictionary : N1 : Page 46 of 88
"Sect. 8. The lieutenant governor shall, while acting as such,
receive a compensation which shall be fixed by law, and which
shall not be increased or diminished during his continuance in
office.
"Sect. 9. Every bill which shall have passed the senate and
assembly, shall, before it becomes a law, be presented to the
governor; if be approve, he shall Sign it; but if not, he shall
return it with his objections to that bouse in which it shall
have originated; who shall enter the objections at large on
their journal, and proceed to reconsider it. If after such
reconsideration, two-thirds of the members present shall agree to
pass the bill, it shall be sent, together with the objections, to
the other house, by which it shall likewise be reconsidered: and
if approved by two-thirds of all the members present, it shall
become a law, notwithstanding the objections of the governor. But
in all such cases, the votes of both houses shall be determined
by yeas and nays, and the flames of the members voting for and
against the bill, shall be entered on the journal of each house
respectively. If any bill shall not be returned by the governor
within ten days (Sundays excepted) after it shall have been
presented to him, the same shall be a law, in like manner as if
he had signed it, unless the legislature shall, by their
adjournment, prevent its return; in which case it shall not be a
law."
11. - §3. The sixth article distributes the judicial power as
follows:
"Sect. 1. The assembly shall have the power of impeachment, by
the vote of a majority of all the members elected. The court for
the trial of impeachments, shall be composed of the president of
the senate, the senators, or a major part of them, and, the
judges of the court of appeals, or the major part of them. On the
trial of an impeachment against the governor, the lieutenant
governor shall not act as a member of the court. No judicial
officer shall exercise bis office after he shall have been
impeached, until he shall have been acquitted. Before the trial
of an impeachment, the members of the court shall take, an oath
or affirmation, truly and impartially to try the impeachment,
according to evidence; and no person shall be convicted without
the concurrence of two-thirds of the members present. Judgment,
in cases of impeachment, shall not extend further than to removal
from office, or removal from office and disqualification to hold
and enjoy any office of honor, trust, or profit under this state;
but the party impeached shall be liable to indictment, and
punishment according to law.
"Sect. 2. There shall be a court of appeals, composed of eight
judges, of whom four shall be elected by the electors of the
state for eight years, and four selected from the class of
justices of the supreme court, having the shortest time to serve.
Provision shall be made by law, for designating one of the number
elected, as chief judge, and for selecting such justices of the
supreme court, from time to time, and for so classifying those
elected, that one shall be elected every second year.
Bouvier's Law Dictionary : N1 : Page 47 of 88
"Sect. 3. There shall be a supreme court having general
jurisdiction in law and equity.
"Sect. 4. The state shall be divided into eight judicial
districts, of which the city of New York shall be one: the
others to be bounded by county lines. and to be compact, and
equal in population, as rearly as may be. There shall be four
justices of the supreme court in each district, and as many more
in the district composed of the city of New York, as may from
time to time be authorized by law, but not to exceed in the whole
such number in proportion to its population, as shall be in
conformity with the number of such judges in the residue of the
state in proportion to its population. They shall be classified
so that one of the justices of each district shall go out of
office at the end of every two years. After the expiration of
their terms under such classification, the term of their office
shall be eight years.
"Sect. 5. The legislature shall have the same powers to alter
and regulate the jurisdiction and proceedings in law and equity,
as they have heretofore possessed.
"Sect. 6. Provisions may be made by law for designating, from
time to time, one or more of the said justices, who is not a
judge of the court of appeals, to preside at the general terms of
the said court to be held in the several districts. Any three or
more of the said justices, of whom one of the said justices so
designated shall always be one, may hold: such general terms.
And any one or more of the justices may hold special terms and
circuit courts, and any one of them may preside in courts of oyer
and terminer in any county.
"Sect. 7. The judges of the court of appeals and justices of
the supreme court, shall severally receive, at stated times, for
their services, a compensation to be established by law, which
shall not be increased or diminished during their continuance in
office.
"Sect. 8. They shall not hold any other office or public trust.
All votes for either of them, for any elective office, (except
that of justice of the supreme court, or judge of the court of
appeals,) given by the legislature or the people, shall be void.
They shall not exercise any power of appointment to public
office. Any male citizen of the age of twenty-one years, of good
moral character, and who possesses the requisite qualifications
of learning and ability, shall be entitled to admission to
practice in all the courts of this state.
"Sect. 9. The classification of the justices of the supreme
court; the times and place of holding the terms of the court of
appeals, and of the general and special terms of the supreme
court within the several districts, and the circuit courts and
courts of oyer and terminer within the several counties, shall be
provided for by law.
"Sect. 10. The testimony in equity cases shall be taken in like
manner as in cases at law.
Bouvier's Law Dictionary : N1 : Page 48 of 88
"Sect. 11. Justices of the supreme court and judges of the
court of appeals, way be removed by concurrent resolution of both
houses of the legislature, if two-thirds of all the members
elected to the assembly, and a majority of all the members
elected to the senate, concur therein. All judicial officers,
except those mentioned in this section, and except justices of
the peace, and judges and justices of inferior courts not of
record, may be removed by the senate, on the recommendation of
the governor: but no removal shall be made by virtue of this
section, unless the cause thereof be entered on the journals, nor
unless the party complained of, shall have been served with a
copy of the complaint against him, and shall have had an
opportunity of being heard in his defence. On the question of
removal, the ayes and noes shall be entered on the journals.
"Sect. 12. The judges of the court of appeals shall be elected
by the electors of the state, ana the justices of the supreme
court by the electors of the several judicial districts, at such
times as may be proscribed by law.
"Sect. 13. In case the office of any judge of the court of
appeals, or justice of the supreme court, shall becoine vacant
before the expiration of the regular term for which he was
elected, the vacancy may be filled by appointment by the
governor, until it shall be supplied at the next general election
of judges, when it shall be filled by election, for the residue
of the unexpired term.
Sect. 14. There shall be elected in each of the counties of
this state, except the city and county of New York, one county
judge, who shall hold his office for four years. He shall hold
the county court, and perform the duties of the office of
surrogate. The county court shall have such jurisdiction in cases
arising in justices' courts, and in special cases, as the
legislature may prescribe, but shall have no original civil
jurisdiction, except in such special cases.
"The county judge, with two justices of the peace, to be
designated according to law, may hold courts of sessions, with
such criminal jurisdiction as the legislature shall prescribe,
and perform such other duties as may be required by law.
"The county judge shall receive an annual salary, to be fixed
by the board of supervisors, which sliall be neither increased
nor diminished during his continuance in office. The justices of
the peace for services in courts of sessions, shall be paid a per
diem allowance out of the county treasury.
"In counties having a population exceeding forty thousand, the
legislature may provide for the election of a separate officer to
perform the duties of the office of surrogate.
"The legislature may confer equity jurisdiction in special
cases upon the county judge.
"Inferior local courts, of civil and criminal jurisdiction, may
Bouvier's Law Dictionary : N1 : Page 49 of 88
be established by the legislature in cities; and such courts,
except for the cities of New York and Buffalo, shall have an
uniform organization and jurisdiction in such cities.
"Sect. 15. The legislature may, on application of the board of
supervisors, provide for the election of local officers, not to
exceed two in any county, to discharge the duties of county
judge, and of surrogate in cases of their inability, or of a
vacancy, and to exercise such other powers in special cases as
may be provided by law.
"Sect. 16. The legislature may reorganize the judicial
districts at the first session after the return of every
enumeration under this constitution, in the manner provided for
in the fourth section of this article, and at no other time; and
they may, at such session, increase or diminish the number of
districts, but such increase or diminution shall not, be more
than one district at any one time. Each district shall have four
justices of the supreme court; but no diminution of the
districts shall have the effect to remove a judge from office.
"Sect. 17. The electors of the several towns shall, at their
annual town meeting, and in such manner as the legislature may
direct, elect justices of the peace, whose term of office shall
be four years. In case of an election to fill a vacancy occurring
before the expiration of a full term, they shall hold for the
residue of the unexpired term. Their number and classification
may be regulated by law. Justices of the peace and judges or
justices of inferior courts, not of record, and their clerks, may
be removed, (after due notice and an opportunity of being beard
in their defence) by such county, city or state courts as may be
prescribed by law, for causes to be assigned in the order of
removal.
"Sect. 18. All judicial officers of cities and villages, and
all such judicial officers is may be created therein by law,
shall be elected at such times and in such manner as the
legislature may direct.
"Sect. 19. The clerks of the several counties of this state
shall be clerks of the supreme court, with such powers and duties
as shall be prescribed by law. A clerk for the court of appeals,
to be ex officio clerk of the supreme court, and to keep his
office at the seat of government, shall be chosen by the electors
of the state; he shall hold his office for three years, and bis
compensation shall be fixed by law and paid out of the public
treasury.
"Sec. 20. No judicial officer, except justices of the peace,
shall receive to his own use any fees or perquisites of office.
"Sect. 21. The legislature may authorize the judgments, decrees
and decisions of any local inferior court of record of original
civil jurisdiction, established removed for review directly into
the court of appeals.
"Sect. 22. The legislature shall provide for the speedy
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publication of all statute laws, and of such judicial decisions
as it may deem expedient. And all laws and judicial decisions
shall be free for publication by any person.
"Sect. 23. Tribunals of conciliation may be established, with
such powers and duties as may be prescribed by law; but such
tribunals shall have no power to render judgment to be obligatory
on the parties, except they voluntarily submit their matters in
difference and agree to abide the judgment, or assent thereto, in
the presence of such tribunal, in such cases as shall be
prescribed by law."
"Sect. 25. The legislature, at its first session after the
adoption of this constitution, shall provide for the organization
of the court of appeals, and for transferring to it the business
pending in the court for the correction of errors, and for the
allowance of writs of error and appeals to the court of appeals,
from the judgments and decrees of the present court of chancery
and supreme court, and of the courts that may be organized under
this constitution."
12. The sixth article, section 24, provides that the
legislature, at its first session after the adoption of this
constitution, shall provide for the appointment of three
commissioners, whose duty it shall be to revise, reform, simplify
and abridge the rules and practice, pleadings, forms and
proceedings of the courts of record of this state, and to report
thereon to the legislature, subject to their adoption and
modification from time to time.
13. In pursuance of the provisions of this section,
commissioners were appointed to revise the laws on the subject of
the practice, pleadings and proceedings of the courts of this
state, who made a report to the legislature. This report, with
some alterations, was enacted into a law on the 12th of April,
1848, ch. 379, by which the forms of action are abolished, and
the whole subject is extremely simplified. How it will work in
practice, time will make manifest.
NEWLY DISCOVERED EVIDENCE. That evidence which, after diligent
search for it, was not discovered until after the trial of a
cause.
2. In general a new trial will be granted on the ground that
new, important, and material evidence has been discovered since
the trial of the cause. 2 Wash. C. C. 411. But this rule must be
received with the following qualifications: 1. When the evidence
is merely cumulative, it is not sufficient ground for a new
trial. 1 Sumn. 451; 6 Pick. 114; 4 Halst. 228; 2 Caines, 129;
4 Wend. 579; 1 A. K. Marsh. 151; 8 John. 84; 15 John. 210; 5
Ham. 375 10 Pick. 16; 7 W. & S. 415; 11 Ohio, 147; 1 Scamm.
490; 1 Green, 177; 5 Pike, 403; 1 Ashm. 141; 2 Ashm. 69; 3
Vei - in. 72; 3 A. K. Marsh. 104. 2. When the evidence is not
material. 5 S. & R. 41; 1 P. A. Browne, Appx. 71; 1 A. K.
Marsh. 151. 3. The evidence must be discovered after the trial,
for if it be known before the verdict has been rendered, it is
not newly discovered. 2 Sumn. 19; 7 Cowen, 369; 2 A. K. Marsh.
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42. 4. The evidence must be such, that the party could not by due
diligence have discovered it before trial. 2 Binn. 582; 1 Misso.
49; 5 Halst. 250; 1 South. 338; 7 Halst. 225; 1 Blackf. 367;
11 Con. 15; 1 Bay, 263, 491; 4 Yeates, 446; 2 Fairf. 218; 7
Metc. 478; Dudl. G. Rep. 85; 9 Shepl. 246; 14 Verm. 414, 558;
2 Ashm. 41, 69; 6 Miss. 600 2 Pike, 133 7 Yerg. 432; 6 Blackf.
496; 1 Harr. 410.
NEWSPAPERS. Papers for conveying news, printed and distributed
periodically.
2. To encourage their circulation the act of congress of March
3, 1825, 3 Story's L. U. S. 1994, enacts, §29. That every printer
of newspapers may rend one paper to each and every other printer
of newspapers within the United States, free of postage, under
such regulations as the postmaster general shall provide.
3. - §30. That all newspapers conveyed in the mail shall be
under cover, open at one end, and charged with the postage of one
cent each, for any distance not more than one hundred miles, and
one and a half cents for any greater distance: Provided That the
postage of a single newspaper, from any one place to another, in
the same state, shall not exceed one cent, and the postmaster
general shall require those who receive newspapers by post, to
pay always the amount of one quarter's postage in advance; and
should the publisher of any newspaper, after being three mouths
previously notified that his paper is not taken out of the
office, to which it is sent for delivery, continue to forward
such paper in the mail, the postmaster to whose office such paper
is sent, may dispose of the same for the postage, unless the
publisher shall pay it. If any person employed in any department
of the post office, shall improperly detain, delay, embezzle, or
destroy any newspaper, or shall permit any other person to do the
like, or shall open or permit any other to open, any mail, or
packet of newspapers, not directed to the office where he is
employed, such offender shall, on conviction thereof, forfeit a
sum, not exceeding fifty dollars, for every such offence. And if
any other person shall open any mail or packet of newspapers, or
shall embezzle or destroy the same, not - being directed to such
person, or not being authorized to receive or open the same, such
offender shall, on the conviction thereof, pay a sum not
exceeding twenty dollars for every such offence. And if any
person shall take, or steal, any packet, bag, or mail of
newspapers, from, or out of any post office, or from any person
having custody thereof, such person shall, on conviction, be
imprisoned, not exceeding three mouths, for every, such offence,
to be kept at hard labor during the period of such imprisonment.
If any person shall enclose or conceal a letter, or other thing,
or any memorandum in writing, in a newspaper, pamphlet, or
magazine, or in any package of newspapers, pamphlets, or
magazines, or make any writing or memorandum thereon, which he
shall have delivered into any post office, or to any persou for
that purpose, in order that the same may be carried by post, free
of letter postage, he shall forfeit the sum of five dollars for
every such offence; and the letter, newspaper, package,
memorandum, or other thing, shall not be delivered to the person
to whom it is directed, until the amount of single letter postage
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is paid for each article of which the package is composed. No
newspapers shall be received by the postmasters, to be conveyed
by post, unless they are sufficiently dried and enclosed in
proper wrappers, on which, besides the direction, shall be noted
the number of papers which are enclosed for subscribers, and the
number for printers: Provided, That the number need hot be
endorsed, if the publisher shall agree to furnish the postmaster,
at the close of each quarter, a certified statement of the number
of papers sent in the mail, chargeable with postage. The
postmaster general, in any contract he may enter into for the
conveyance of the mail, may authorize the person with whom such
contract is to be made, to carry newspapers, magazines, and
pamphlets, other than those conveyed in the mail: Provided, That
no preference shall be given to the publisher of one newspaper
over that of another, in the same place. When the mode of
conveyance, and size of the mail, will admit of it, such
magazines and pamphlets as are published periodically, may be
transported in the mail, to subscribers, at one and a half cents
a sheet, for any distance riot exceeding one hundred miles, and
two and a half cents for any greater distance. And such magazines
and pamphlets as are not published periodically, if sent in the
mail, shall be charged with a postage of four cents on each
sheet, for any distance not exceeding one hundred miles, and six
cents for any greater distance. By the act of March 3, 1851, c.
20, s. 2, it is enacted, That all newspapers not exceeding three
ounces in weight sent from the office of publication to actual
and bona fide subscribers, shall be charged with postage is
follows, to wit weekly only, within the county where published,
free; for any distance not exceeding fifty miles out of the
county, five cents per quarter; exceeding fifty, and not
exceeding three hundred miles, ten cents per quarter; exceeding
three bundred and not exceeding one thousand miles, fifteen cents
per quarter; exceeding one thousand and not exceeding two
thousand miles, twenty cents per quarter exceeding two thousand
and not exceeding four thousand, twenty-five cents per quarter;
exceeding four thousand miles, thirty cents per quarter;
newspapers published monthly, sent to actual and bona fide
subscribers, one-fourth the foregoing rates; published
semi-monthly, one-half the foregoing rates; semi-weekly, double
those rates; tri-weekly, treble those rates; and oftener than
tri-weekly, five times those rates; Provided, That newspapers
not containing over three hundred square inches may be
transmitted at one-fourth the above rates. See, as to other
newspapers, Postage.
NEXT FRIEND. One who, without being regularly appointed
guardian, acts for the benefit of an infant, married woman, or
other person, not sui juris. Vide Amy; Prochein Amy.
NEXT OF KIN. This term is used to signify the relations of a
party who has died intestate.
2. In general no one comes within this term who is not included
in the provisions of the statutes of distribution. 3 Atk. 422,
761; 1 Ves. sen. 84. A wife cannot, in general, claim as next of
kin of her husband, nor a husband as next of kin of his wife. But
when there are circumstances in a will which induce a belief of
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an intention to include them under this term, they will be so
considered, though in the ordinary sense of the word, they are
not. Hov. Fr. 288, 9; 1 My. & Keen, 82. Vide Branch; Kindred;
Line.
NEXUM, Rom. civ. law. Viewed as to its object and legal effect,
nexum was either the transfer of the ownership of a thing, or the
transfer of a thing to a creditor as a security. Accordingly in
one sense nexum included mancipium, in another sense mancipium
and nexum are opposed in the same way in which sale and mortgage
or pledge are opposed. The formal part of both transactions
consisted in a transfer per Des et libram. The person who became
nexus by the effect of a nexum, placed himself in a servile
condition, not becoming a slave, his ingenuitas being only in
suspense, and was said nexum inire. The phrases nexi datio, nexi
liberatio, respectively express the contracting and the release
from the obligation.
2. The Roman law, as to the payment of borrowed money, was very
strict. A curious passage of Gellius (xx. 1) gives us the ancient
mode of legal procedure in the case of debt as fixed by the
Twelve Tables. If the debtor admitted the debt, or bad been
condemned in the amount of the debt by a judex, he had thirty
days allowed him for payment. At the expiration of this time he
was liable to the manus. injectio, and ultimately to be assigned
over to the creditor (addictus) by the sentence of the praetor.
The creditor was required to keep him for sixty days in chains,
during which time he publicly exposed the debtor, on three
nundinae, and proclaimed the amount of bis debt. If no person
released the prisoner by paying the debt, the creditor might sell
him as a slave or put him to death. If there were several
debtors, the letter of the law allowed them to cut the debtor in
pieces, and take their share of his body in proportion to their
debt. Gellius says that there was no instance of a creditor ever
having adopted this extreme mode of satisfying his debt. But the
creditor might treat the debtor, who was addictus, as a slave,
and compel him to work out his debt, and the treatment was often
very severe. In this passage Gellius does not speak of nexi but
only of addicti, which is sometimes alleged as evidence of the
identity of nbxus and addictus, but it proves no such identity.
If a nexus is what he is here supposed to be, the laws of the
Twelve Tables could not apply; for when a man became nexus with
respect to one creditor, he could not become nexus to another;
and if he became nexus to several at once, in this case the
creditors must abide by their contract in taking a joint
security. This law of the Twelve Tables only applied to the case
of a debtor being @igned over by a judicial sentence to several
debtors, and it provided for a settlement of their conflicting
claims. The precise condition of a nexus has, however, been a
subject of much dinussion among scholars. Smith, Dict. Rom. & Gr.
Antiq. h. v., and vide Mancipitem.
NIECE, domestic relations: The daughter of a person's brother
or sister. Amb. 514; 1 Jacob's Ch. R. 207.
NIEF, old Eng. law. A woman born in vassalage. In Latin she was
called Nativa.
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NIENT COMPRISE. Not included. It is an exception taken to a
petition, because the thing desired is not contained in that deed
or proceeding wltereoia the petition is founded. Touil. Law Dict.
NIENT CULPABLE. Nof guilty the name of a plea used to deny any
charge of ao r@al nature, or of a tort.
NIE'@QT DEDIRE. To say nothing.
2. These words are used to signify that judgment be rendered
ag@ a party, because he does not deny the cause of action, i. e.
by default.
3. When a fair and impartial trial cannot be had in the county
where the venue is laid, the practice in the English courts is,
on an affidavit of the eirculustances, to change it in transitory
actions; or in local actions they will give leave to enter a
suggestion on the roll, with a nient dedire, in order to have the
trial in another country. 1 Tidd's Pr. 655, 8th ed.
NIENT LE FAIT, pleading. The same as non est factum, a plea by
which the defendant asserts that the deed declared upon is not
his deed.
NIGHT. That space of time during which the sun is below the
horizon of the earth, except, that short space which precedes its
rising and follows its setting, during which, by its light, the
countenance of a man may be discerned. I Hale, P. C. 550; 3
Inst. 63; 4 Bl. Com. 224; 1 Hawk. P. C. 101; 3 Chit. Cr- Law,
1093; 2 Leach, 710; Bac. Ab. Burglary, D; 2 East, P. C. 509;
2 Russ. Cr. 32; Rosc. Cr. Ev. 278; 7 Dane's Ab. 134.
NIGHT WALKERS. Persons who sleep by day and walk by niggt 5 E.
Ill. c. 14; that is, persons of suspicious appearance and
demeanor, who walk by night.
2. Watchmen may undoubtedly arrest them, and it is said that
private persons may also do so. 2 Hawk. P. C. 120; but see 3
Taunt. 14,; Ham. N. P. 135. Vide 15 Vin. Ab. 655; Dane's Ab.
Index, h. t.
NIHIL CAPIAT PER BREVE, practice. That he take nothing by his
writ. This is the judgment against the plaintiff in an action,
either in bar or in abatement. When the plaintiff has commenced
his proceedings by bill, the judgment is nihil capiat per billam.
Co. Litt. 363.
NIHIL DICIT. He says nothing. It is the failing of the
defendant to put in a plea or answer to the plaintiff's
declaration by the day assigned; and, in this case judgment is
given against the defendant of course, as he says nothing why it
should not. Vide 15 Vin. Ab. 556; Dane's Ab. Index, h. t.
NIHIL HABET. The name of a return made by a sheriff, marshal,
or other proper officer, to a scire facia.9 or other writ, when
he Ims not been able to, serve it on the defendant. 5 Whart. 367.
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2. Two returns of nihil are in general equivalent to a service.
Yelv. 112; 1 Cowen, 70; 1 Car. Law Regags. 491; 4 Blackf. 188;
2 Binn. 40.
NIL DEBET, pleading. The general issue in debt,6r simple
contract. It is in the following form: IcAndthesaideD, by E F,
his attorney, comes and defends the wrong and injury, when, &c.
and says, that he does not owe the said sum of money above
demanded, or any part thereof, in manner and form as the said A B
hath above complained. And of this the said C, D puts himself
upon the country." When, in debt on specially, the deed is the
only iuducernent to the action, the general issue is nil debet.
Stephens on Pleading, 174, n.; Dane's Ab. Index, h. t.
NIL HABUIT IN TENEMENTIS, pleading. A plea by which the
defendant, wbo is sued by his landlord in debt for rent uppa-a
lease, but by deed indented, by,which he denies his landlord's
title to the premises, that he has no interest in the tenements.
2 Lill. Ab. 214; 12 Vin. Ab. 184; 15 Vin. Ab. 556 Woodf. L. &
T. 330; Com. Dig. Pleader, 2 W 48 Co. Litt. 47 b; Dane's Ab.
Index, h. t. 3 E. C. L. R. 169, n.; 1 Holt's R. 489.
NISI. This word is frequently used in legal proceedings to
denote that something has been done, which is to be valid unless
something else Shall be done within a certain time to defeat it.
For example, an order may be made that if on the day appointed to
show cause, none be shown, an injunction will be dissolved of
course, on motion, and production of an affidavit of service of
the order. This is called an order nisi. Ch. Pr. 547. Under the
compulsory arbitration law of Pennsylvania, on the filing of the
award, judgment nisi is to be entered: which judgment is to be
as valid as if it had been rendered on the verdict of a jury,
unless an appeal be entered within the time required by the law.
NISI PRIUS. These words, which signify 'unless before,' are the
name of a court. The name originated as follows: Formerly, an
action was triable only in the court where it was brought. But,
it was provided by Magna Charta, in ease of the subject, that
assises of novel disseisin and mort d'ancestor (then the most
usual remedies,) should thenceforward instead of being tried at
Westminster, in the superior court, be taken in their proper
counties; and for this purpose justices were to be sent into
every county once a year, to take these assises there. 1 Reeves,
246; 2 Inst. 422, 3, 4. These local trials being found
convenient, were applied not only to assises, but to other
actions; for, by the statute of 13 Edw. I. c. 30, it is provided
as the general course of proceeding, that writs of venire for
summoning juries in the superior courts, shall be in the
following form. Praecipimus tibi quod veneri facias coram
justiciariis nostris apud Westm. in Octabis Seti Michaelis, nisi
talis et talis tali, die et loco ad partes illas venerint,
duodecim, &c. Thus the trial was to be had at Westminster, only
in the event of its not previously taking place in the county,
before the justices appointed to take tlie assises. It is this
provision of the statute of Nisi Prius, enforeed by the
subsequent statute of 14 Ed. III. c. 16, which authorizes, in
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England, a trial before the justices of assises, in lieu of the
superior court, and gives it the name of a trial by nisi prius.
Steph. Pl. App. xxxiv.; 3 Bl. Com. 58; 1 Reeves, 245, 382; 2
Reeves, 170; 2 Com. Dig. Courts, D b, page 316.
2. Where courts bearing this name exist in the United States,
they are instituted by statutory provision. 4 W. & S. 404.
NISI PRIUS ROLL, Eng. practice. A transcript of a case made
from the plea roll, and includes the declaration, plea,
replication, rejoinder, &c. and the issue. Eunom. Dial. 2, §28,
29, p. 110, 111. After the nisi prius roll is returned from the
trial, it assumes the name of posted. (q. v.)
NO AWARD. The name of a plea to an action or award. 1 Stew.
520; f Chip. R. 131; 3 Johns. 367. See Nul. Agard.
NO BILL. These words are frequently used by grand juries. They
are endorsed on a bill of indictment when the grand jury have not
sufficient cause for finding a true bill. They are equivalent to
Not found, (q. v.) or Ignoramus. (q. v.) 2 Nott & McC. 558.
NOBILITY. An order of men in several countries to whom
privileges are granted at the expense of the rest of the people.
2. The constitution of the United States provides that no state
shall " grant any title of nobility; and no person can become a
citizen ot' the United States until he has renounced all titles
of nobility." The Federalist, No. 84; 2 Story, Laws U. S. 851.
3. There is not in the constitution any general prohibition
against any citizen whomsoever, whether in public or private
life, accepting any foreign title of nobility. An amendment of
the constitution in this respect has been recommended by
congress, but it has not been ratified by a sufficient number of
states to make it a part of the constitution. Rawle on the Const.
120; Story, Const. §1346.
NOLLE PROSEQUI, practice. An entry made on the record, by which
the prosecutor or plaintiff declares that he will proceed no
further.
2. A nolle prosequi may be entered either in a criminal or a
civil case. In criminal cases, a nolle prosequi may be entered at
any time before the finding of the grand jury, by the attorney
general, and generally after a true bill has been found; in
Pennsylvania, in consequence of a statutory provision, no nolle
prosequi can be entered after a bill has been found, without
leave of the court, except in cases of assault and battery,
fornication and bastardy, on agreement between the parties, or in
prosecutions for keeping tippling houses. Act of April 29, 1819,
s. 4, 7 Smith's Laws, 227.
3. A nolle prosequi may be entered as to one ot several
defendants. 11 East, R. 307.
4. The effect of a nolle prosequi, when obtained, is to put the
defendant without day, but it does not operate as an acquittal;
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for he may be afterwards reindicted, and even upon the same
indictment, fresh process may be awarded. 6 Mod. 261; 1 Salk .
59; Com. Dig. Indictment. K; 2 Mass. R. 172.
5. In civil cases, a nolle prosequi is considered, not to be of
the nature of a retraxit or release, as was formerly supposed,
but an agreement only, not to proceed either against some of the
defendants, or as to part of the suit. Vide 1 Saund. 207, note 2,
and the authorities there cited. 1 Chit. PI. 546. A nolle
prosequi is now held to be no bar to a future action for the same
cause, except in those cases where, from the nature of the
action, judgment and execution against one, is a satisfaction of
all the damages sustained by the plaintiff. 3 T. R. 511; 1 Wils.
98.
6. In civil cases, a nolle prosequi may be entered as to one of
several counts; 7 Wend. 301; or to one of several defendants;
1 Pet. R. 80; as in the case of a joint contract, where one of
two defendants pleads infancy, the plaintiff may enter a nolle
prosequi, as to him, and proceed against the other. 1 Pick. 500.
See, generally, 1 Pet. R. 74; see 2 Rawle, 334; 1 Bibb, 337; 4
Bibb, 887, 454; 3 Cowen, 374; 5 Gill & John. 489; 5 Wend. 224;
20 John. 126; 3 Cowen, 335; 12 Wend. 110; 3 Watts, 460.
NOMEN COLLECTIVUM. This expression is used to signify that a
word in the singular number is to be understood in the plural in
certain cases.
2. Misdemeanor, for example, is a word of this kind, and when
in the singular, may be taken as nomen collectivum, and including
several offences. 2 Barn. & Adolp. 75. Heir, in the singular,
sometimes includes all the heirs.
NOMEN GENERALISSIMUM. A name which applies generally to a
number of things; as, land, which is a general name by which
everything attached to the freehold will pass.
NOMINAL. Relating to a name.
2. A nominal plaintiff is one in whose name an action is
brought, for the use of another. In this case, the nominal
plaintiff has no control over the action, nor is he responsible
for costs. 1 Dall. 1 39; 2 Watts, R. 12.
3. A nominal partner is one, who, without having an actual
interest in the profits of a concern, allows his name to be used,
or agrees that it shall be continued therein, as a partner; such
nominal partner is clearly liable to the creditors of the firm,
as a general partner, although the creditors were ignorant at the
time of dealing, that his name was used.. 2 H. Bl. 242, 246; 1
Esp. R. 31; 2 Campb. 302; 16 East, R. 174; 2 B. & C. 411.
NOMINAL PLAINTIFF. One who is named as the plaintiff in an
action, but who has no interest in it, having assigned the cause
or right of action to another, for whose use it is brought.
2. In general, he cannot interfere with the rights of his
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assignee, nor will he be permitted to discontinue. the action, or
to meddle with it. 1 Wheat. R. 233; 1 John. Cas. 411; 3 John.
Cas. 242; 1 Johns. R. 532, n.; 3 Johns. R. 426; 11 Johns. R.
47; 12 John. R. 237; 1 Phil. Ev. 90; Cowen's note 172;
Greenl. Ev. SS 173; 7 Cranch, 152.
NOMINATE CONTRACT, civil law. Nominate contracts are those
which have a particular name to distinguish them; as, purchase
and sale, hiring, partnership, loan for use, deposit, and the
like. Dig. 2, 14, 7, 1. Innominate contracts, (q. v.) are those
which have no particular name. Dig. 19, 4, 1, 2 Code, 4, 64, 3.
NOMINATION, This word has several significations. 1. An
appointment; as, I nominate A B, executor of this my last will.
2. A proposition; the word nominate is used in this sense in the
constitution of the United States, art. 2, s. 2, the president
"shall nominate, and by and with the consent of the senate, shall
appoint ambassadors," &c.
NOMINE POENAE, contracts. The name of a penalty incurred by the
lessee to the lessor, for the non-payment of rent at the day
appointed by the lease or agreement for its payment. 2 Lill. Ab.
221. It is usually a gross sum of money, though it may be any
thing else, appointed to be paid by the tenant to the
reversioner, if the duties are in arrear, in addition to the
duties themselves. Ham. N. P. 411, 412.
2. To entitle himself to the nomine paenae, the landlord must
make a demand of the rent on the very day, as in the case of a
reentry. 1 Saund. 287 b, note; 7 Co. 28 b Co. Litt. 202 a; 7 T.
R. 11 7. A distress cannot be taken for a nomine paenae, unless a
special power to distrain be annexed to it by deed. 3 Bouv. Inst.
n. 2451. Vide Bac. Ab. Rent, K 4; Woodf. L. & T. 253; Tho. Co.
Litt. Index, h. t.; Dane's Ab. Index, h. t.
NOMINEE. One who has been named or proposed for an office.
NON. Not. When prefixed to other words, it is used as a
negative as non access, non assumpsit.
NON ACCEPTAVIT. The name of a plea to an action of assumpsit
brought against the drawee of a bill of exchange upon a supposed
acceptance by him. See 4 Mann. & Gr. 561; S. C. 43 E. C. L. R.
292.
NON ACCESS. The non existence of sexual intercourse is
generally expressed by the words " non access of the husband to
the wife which expressions, in a case of bastardy, are understood
to mean the same thing. 2 Stark Ev. 218, n.
2. In Pennsylvania, when the husband has access to the wife, no
evidence short of absolute impotence of the husband, is
sufficient to convict a third person of bastardy with tlie wife.
6 Binn. 283.
3. In the civil law the maxim is, Pater is est quem nupticae
demonstrant. Toull. tom. 2, n. 787. The Code Napoleon, art. 312,
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enacts, " que l'enfant concu pendant le mariage a pour pere le
mari." See also 1 Browne's R. Appx. xlvii.
4. A married woman cannot prove the non access of her husband.
Id. See 8 East, 202; 4 T. R. 251; 11 East, 132; 13 Ves. 58; 8
East, R. 193; 12 East, R. 550; 4 T. R. 251, 336; 11 East, R.
132; 6 T. R. 330.
NON AGE. By this term is understood that period of life from
the birth till the arrival of twenty-one years. In another sense
it means under the proper age to be of ability to do a particular
thing; as, when non age is applied to one under the age of
fourteen, who is unable to marry.
NON ASSUMPSIT, pleading. The general issue in trespass on the
case, in the species of assumpsit. Its form is, "And the said C
D, by E F, his attorney, comes and defends the wrong and injury,
when, &c., and says, that he did not undertake or promise in
manner and form as the said A B, hath above complained. And of
this he puts himself upon the country."
2. Under this plea almost every matter may be given in
evidence, on the ground, it is said, that as the action is
founded on the contract, and the injury is tlie non, performance
of it, evidence which disaffirms the obligation of the contract,
at the time when the action was commenced, goes to the gist of
the action. Gilb. C. P. 6 5; Salk. 27 9; 2 Str. 738; 1 B. & P.
481. Vide 12 Vin. Ab. 189; Com Dig. Pleader, 2 G 1.
NON ASSUMPSIT INFRA SEX ANNOS. The name of a plea by which the
defendant avers that he did not assume to perform the assumption
charged in the declaration within six years.
2. The act of limitation bars the recovery of a simple contract
debt after six years; when a defendant is sued on such a
contract, and it is more than six years since he entered into the
contract, he pleads this plea by the following formula: " and
saith that the aforesaid plaintiff the action aforesaid hereof
against him he ought not to have, because he saith that he did
not undertake, &c., and this he is ready to verify." Vide ddio
non accrevit infra sex annos.
NON BIS IN IDEM, civil law. This phrase signifies that no one
shall be twice tried for the same offence; that is, that when a
party accused has been once tried by a tribunal in the last
resort, and either convicted or acquitted, he shall not again be
tried. Code 9, 2, 9 & 11. Merl. RŠpert. h. t. Vide art. Jeopardy.
NON CEPIT MODO ET FORMA, pleading. The general issue in
replevin. Its form is, "And the said C D, by E F, his attorney,
comes and defends the wrong and injury, when, &c., and says, that
he did not take the said cattle, (or ' goods and chattels,'
according. to the subject of the action,) in the said declaration
mentioned or any of them, in manner and form as the said A B hath
above complained. And of this the said C D puts himself upon the
country."
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2. This issue applies to a case where the defendant has not, in
fact, taken the cattle or goods, or where he did not take them,
or have them in the place mentioned in the declaration. The
declaration alleges that the defendant " took certain cattle or
goods of the plaintiff, in a certain place called," &c.; and the
general issue states, that he did not take the said cattle or
goods, -- in manner and form as alleged;" which involves a denial
of the taking and of the place in which the taking was alleged to
have been, the place being a material point in this action.
Steph. PI. 183, 4; 1 Chit. Pl. 490.
NON CLAIM. An omission or neglect by one entitled to make a
demand within the time limited by law; as, when a continual
claim ought to be made, a neglect to make such claim within a
year aud a day.
NON COMPOS MENTIS, persons. These words signify not of sound
mind, memory, or understanding. This is a generic term, and
includes all the species of madness, whether it arise from, 1,
idiocy; 2, sickness 3, lunacy or 4, drunkenness. Co. Litt. 247;
4 Co. 124; 1 Phillim. R. 100; 4 Com. Dig. 613; 5 Com. Dig.
186; Shelf. on Lunatics, 1; and the articles Idiocy; Lunacy.
NON CONCESSIT, Eng. law. The name of a plea by which the
defendant denies that the crown granted to the plaintiff by
letters patent, the rights which he claims as a concession from
the king; as, for example, when a plaintiff sues another for the
infringement of his patent right, the defendant way deny that the
crown has granted him such a right.
2. The plea of non concessit does not deny the grant of a
patent, but of the patent as described in the plaintiff's
declaration. 3 Burr. 1544; 6 Co. 15, b.
NON CONFORMISTS English law. A name given to certain dissenters
from the rites and ceremonies of the church of England.
NON CONSTAT. It does not appear. These words are frequently
used, particularly in argument; as, it was moved in arrest of
judgment that the declaration was not good, because non constat
whether A B was seventeen years of age when the action was
commenced. Sw. pt. 4, SS 22, p. 331.
NON CULPABILLS, pleading. Not guilty. (q. v.) It is usually
abbreviated non cul. 16 Vin. Ab. 1.
NON DAMNIFICATUS, pleading. A plea to an action of debt on a
bond of indemnity, by which the defendant asserts that the
plaintiff has received no damage; in other words that he is not
damnified. 1 B. & P. 640, n. a; 1 Taunt. R. 428; 1 Saund. 116,
n. 1; 2 Saund. 81; 7 Wentw. PI. 615, 616; 1 H. Bl. 253; 2
Lill. Ab. 224; 14 John R. 177; 5 John. R. 42; 20 John. Rep.
153; 3 Cowen, R. 313; 10 Wheat R. 396, 405; 3 Halst. R. 1.
NON DEDIT, pleading. The general issue in formedom. See Ne dona
pas.
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NON DEMISIT, pleading. A plea proper to be pleaded to an action
of debt for rent, when the plaintiff declares on a parol lease.
Gilb. Debt, 436, 438; Bull. N. P. 177; 1 Chit. Pl. 477.
2. It is improper to plead such plea when the demise is stated
to have been by indenture. Id.; 12 Vin. Ab. 178; Com. Dig.
Pleader, 2 W 48.
NON DETINET, pleading. The general issue in an action of
detinue. Its form is as follows:: And the said C D, by E F, his
attorney, comes and defends the wrong and injury, when, &c., and
says, that he does not detain the said goods and chattels (or,
deeds and writings,' according to the subject of the action,) in
the said declaration specified, or any part thereof, in manner
and form as the said A B bath above complained. And of this the
said C D puts himself upon the country."
2. In debt on simple contract, in the case of executors and
administrators, instead of pleading nil debet, the plea should be
"doth, not detain.". 6 East, R. 549; Bac. Abr. Pleas, I; 1
Chit. PI. 476. 3. The plea of non detinet merely puts iii issue
the simple fact of detainer; when the defendant relies upon a
justifiable detainer, he must plead it specially. 8 D. P C. 347.
NON EST FACTUM, pleading. The general issue in debt on bond or
other specialty, and is, in form, as follows: I " And the said C
D, by E F, his attorney, conies and defends the wrong and injury,
when, &c., and says, that the said supposed writing obligatory,
(or 'indenture,' or 'articles of agreement,' according to the
subject of the action,) is not his deed. And of this he puts
himself upon the country." 6 Rand. Rep. 86; 1 Litt. R. 158.
2. Though non est factum is, in most cases, the general issue
in debt on specialty, yet, when the deed is only inducement to
the action, the general issue is nil debet. Steph. Pl. 174, n.
3. In covenant tlie general issue is non est factum; and its
form is similar to that in debt on a specialty. Id. 174. It is,
however, said, that in covenant there is, strictly speaking, no
general issue, as the plea of non est factum only puts tlie deed
in issue, as in debt on a specialty, and not the breach of
covenant or any other matter of defence. 1 Chit. PI. 482. See
generally, 1 Harring. R. 230; 6 Munf. R. 462; Minor, R. 103; 1
Harr. & Gill, 324; 13 John. R, 430; 12 John. R. 337; 2 N. H.
Rep. 74; 4 Wend. R. 519; 2 N. & M. 492. See Issint; Special
non est factum.
NON EST INVENTUS, practice. The sheriff's return to a writ
requiring him to ,arrest the person of the defendant, which
signifies that he is not to be found within his jurisdiction. The
return is usually abbreviated N. E. I. Chit. Pr. Index, L. t.
NON FEASANCE, torts, contracts. The non-performance of some act
which ought to be performed.
2. When a legislative act requires a person to do a thing, its
non feasance will subject the party to punishment; as, if a
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statute require the supervisors of the highways to repair such
highways, tlie neglect to repair them may be punished. Vide 1
Russ. on Cr. 48.
3. Mere non-feasance does not imply malice; this is strongly
exemplified in the case of a plaintiff, who, having issued a writ
of capias against his debtor, afterwards received the debt, and
neglected to countermand tlie writ, in consequence of which the
defendant was afterwards arrested. On a suit brought by the
former defendant against tlie former plaintiff, it was held that
the law did not impose on the first plaintiff the duty of
countermanding his writ. If he had refused to give the
countermand when requested, it might have been evidence of
malice, but in such case there would have been something beyond
mere non-feasance, an actual refusal. 1 B & P. 388; 3 East, R.
314; 2 Bos. & P. 129.
4. There is a difference between nonfeasance and misfeasance,
(q. v.) or malfeasance. (q. v.) Vide 2 Kent, Com. 443 Story on
Bailm. §9, 165; 2 Vin. Ab. 35 1 Hawk. P. C. 13; Bouv. Inst.
Index, h. t.
NON FECIT. He did not make it. The name of a plea, for example,
in an action of assumpsit on a promissory note. 3 Mann. Gr. 446.
NON FECIT VASTUM CONTRA PROHIBITIONEM. The name of a plea to an
action founded on a writ of estrepement, that the defendant did
not commit waste contrary to the prohibition. 3 Bl. Com. 226,
227.
NON INFREGIT CONVENTIONEM, pleading. A plea in an action of
covenant. This plea is not a general issue, it merely denies that
the defendant has broken the covenants on which he is sued. It
being in the negative, it cannot be used where the breach is also
in the negative. Bac Ab. Covenant L; 3 Lev. 19; 2 Taunt. 278;
1 Aik. R. 150; 4 Dall. 436; 7 Cowen, R. 71.
NON JOINDER, pleading, practice. The omission of some one of
the persons who ought to have been made a plaintiff or defendant
along with others is called a non joinder.
2. In actions upon contracts, where the contract has been made,
with several, if their interest were joint, they miist all, if
living, join in the action for its breach. 8 S., & R. 308; 10 S.
& R. 257; Minor, 167; Hardin, 508. In such case the non joinder
must be pleaded in abatement. Id.; 3 Bouv. Inst. n. 2749.
NON JURORS, English law. Persons who refuse to take the oaths,
required by law, to support the government. 1 Dall. 170.
NON LIQUET. It is not clear.
NON MODERATE CASTIGAVIT. The name of a faulty replication to a
plea of moderate castigavit. (q. v.) This replication, in such a
case, is a negative. pregnant. Gould, PI. ch. 7, SS 37.
NON OBSTANTE, Engl. law. These words, which literally signify
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notwithstanding, are used to express the act of the English king,
by which he dispenses with the law, that is, authorizes its
violation.
2. He cannot by his license or dispensation make an offence
dispunishable which is malum in se; but in certain matters which
are mala prohibita, be may, to certain persons and on special
occasions, grant a non obstante. 1 Th. Co. Litt. 76, n. 19;
Vaugh. 330 to 359; Lev. 217; Sid. 6, 7; 12 Co. 18; Bac. Ab.
Prerogative, D. 7. Vide Judgment non obstante veredicto.
NONOBSTANTEVEREDICTO. Notwithstanding the verdict. See Judgment
non obstante veredicto.
NON OMITTAS, English practice. The name of a writ directed to
the sheriff Where the bailiff of a liberty or franchise, who has
the return of writs, neglects or refuses to serve a process, this
writ issues commanding the sheriff to enter into the franchise
and execute the process himself, or by bis officer, non omittas
propter aliquam libertatem. For the despatch of business a non
omittas is commonly directed in
the first instance. 3 Chit. Pr. 190, 310.
NON PROS, or NON PROSEQUITUR. The name of a judgment rendered
against a plaintiff for neglecting to prosecute his suit
agreeably to law and the rules of the court. Vide Grah. Pr. 763;
3 Chit. Pr. 910; 1 Sell. Pr. 359; 1 Penna. Pr. 84; Caines' Pr.
102; 2 Arch. Pr. 204 and article Judgment of Non Pros.
NON RESIDENCE, eccles. law. The absence of spiritual persons
from their benefices.
NON SUBMISSIT. The name of a plea to an action of debt or a
bond to perform an award, by which the defendant pleads that he
did not submit. Bac. Ab. Arbitr. &c., G.
NON SUM INFORMATUS, pleading. I am not informed. Vide
lnformatus non SUM.
NON TENENT INSIMUL, pleadings. A plea to an action in
partition, by which the defendant denies that he holds the
property, which is the subject of the suit, together with the
complainant or plaintiff.
NON TENUIT. He did not hold. The name of a plea in bar in
replevin, when the
plaintiff has avowed for rent arrear, by which the plaintiff
avows that he did not hold in manner and form as the avowry
alleges.
NON TENURE, pleading. A plea in a real action, by which the
defendant asserted, that he did not hold the land, or at least
some part of it, as mentioned in the plaintiff's declaration. 1
Mod. 250.
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2. Non tenure is either a plea in bar or a plea in abatement.
14 Mass. 239; but see 11 Mass. 216. It is in bar, when the plea
goes to the tenure, as when the tenant denies that he holds of
the defendant, and says he holds of some other person, But when
the plea goes to the tenancy of the land, as when the defendant
pleads that be is not the tenant of the land, it is in abate,
ment only. Id.; Bac. Ab. Pleas, &c., I 9.
NON TERM. The vacation between two terms of a court.
NON USER. The neglect to make use of a thing.
2. A right which may be acquired by use, may be lost by
non-user, and an absolute discontinuance of the use for twenty
years affords presumption of the extinguishment of the right, in
favor of some others adverse right. 5 Whart. Rep. 584; 23 Pick.
141. 3. As an enjoyment for twenty years is necessary to found
the presumption of a grant of an easement, the general rule is,
there must be a similar non-user to raise the presumption of a
release. But in this case the owner of the servient premises must
have done some act inconsistent with, or adverse to the existence
of the right. See 2 Evans's Pothier, 136; 10 Mass. R, 183; 3
Campbl. R. 614; 3 Kent, Com. 359; 1 Chit. Pr. 284, 285, 767 to
759, n. (s); 1 Ves. jr. 6, 8; 2 Supp. to Ves. jr. 442; 2
Anstr. 603; S. C. on appeal, 1 Dowl. R. 316; 4 Ad. & Ell 369;
6 Nev. & M. 230. But the dereliction or abandonment of rights
affecting lands is not in all cases held to be evidenced by mere
non-user.
4. As an exception to the rule may be mentioned rights to mines
and minerals, with the incidental privilege of boring and working
them. 16 Ves. 390; 19 Ves. 166.
5. In the civil law there is a similar doctrine: on this
subject, Vide Dig. 8, 6, 5; Voet, Com. ad Pand. lib. 8, tit. 6,
s. 5 et 7; 3 Toull. n. 673; Merl. Repert. mot Servitude, §30,
n. 6, and §33; Civ. Code of Louis. art. 815, 816.
6. Every public officer is required to use his office for the
public good; a non-user of a public office is therefore a
sufficient cause of forfeiture. 2 Bl. Com. 153; 9 Co. 60. Non
user, for a great length of time, will have the effect of
repealing an old law. But it must be a very strong case which
will have that effect. 13 S. & R. 452; 1 Bouv. Inst. n. 94.
NONSENSE, construction. That which in a written agreement or
will is unintelligible.
2. It is a rule of law that an instrument shall be so construed
that the whole, if possible, shall stand. When a matter is
written grammatically right, but it is unintelligible, and the
whole makes nonsense, some words cannot be rejected to make sense
of the rest; 1 Salk. 324; but when matter is nonsense by being
contrary and repugnant to, some precedent sensible latter, such
repugnant matter is rejected. Ib.; 15 Vin. Ab. 560; 14 Vin. Ab.
142. The maxim of the civil law on this subject agrees with this
rule: Quae in testamento ita sunt scripta, ut intelligi non
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possent: perinde sunt, ac si scripta non essent. Dig.
50,17,73,3. Vide articles dmbiguity; Construction;
Interpretation.
3. In pleading, when matter is nonsense by being contradictory
and repugnant to something precedent, the precedent matter, which
is sense, shall not be defeated by the repugnancy which follows,
but that which is contradictory shall be rejected; as in
ejectment where the declaration is of a demise on the second day
of January, and that the defendant postea scilicet, on the first
of January, ejected him; here the scilicet may be rejected as
being expressly contrary to the postea and the precedent matter.
5 East, 255; 1 Salk. 324.
NON SUIT. The name of a judgment given against a plaintiff,
when be is unable to prove his case, or when he refuses or
neglects to proceed to the trial of a cause after it has been put
at issue, without determining such issue.
2. It is either voluntary or involuntary.
3. A voluntary nonsuit is an abandonment of his cause by a
plaintiff, and an agreement that a judgment for costs be entered
against him.
4 An involuntary nonsuit takes placs when the 'Plaintiff on
being called, when his case is before the court for trial,
neglects to appear, or when he has given no evidence upon which a
jury could find a verdict. 13 John. R. 334.
5. The courts of the United States; 1 Pet. S. C. R. 469, 476;
those of Pennsylvania; 1 S. & R. 360; 2 Binn. R. 234, 248; 4
Binn. R. 84; Massachusetts; 6 Pick. R. 117; Tennessee; 2
Overton, R. 57; 4 Yerg. R. 528; and Virginia; 1 Wash. R. 87,
219 cannot order a nonsuit against a plaintiff who has given
evidence of his claim. In Alabama, unless authorized by statute,
the court cannot order a nonsuit. Minor, R. 75; 3 Stew. R. 42.
6. In New York; 13 John. R 334; 1 Wend. R. 376; 12 John. R.
299; South Carolina; 2 Bay, R. 126, 445; 2 Bailey, R. 321; 2
McCord, R. 26; and Maine; 2 Greenl. R. 5; 3 Greenl. R. 97; a
nonsuit may in general be ordered where the evidence is
insufficent to support the action. Vide article Judgment of
Nonsuit, and Grah. Pr. 269; 3 Chit. Pr. 910; 1 Sell. Pr. 463;
1 Arch. Pr. 787; Bac. Ab. h. t.; 15 Vin. Ab. 560.
NORTH CAROLINA. The name of one of the original states of the
United States of America. The territory which now forms this
state was included in the grant made in 1663 by Charles II. to
Lord Clarendon and others, of a much more extensive country. The
boundaries were enlarged by a new charter granted by the same
prince to the same proprietaries, in the year 1665. By this
charter the proprietaries were authorized to make laws, with the
assent of the freemen of the province or their delegates, and
they were invested with various other powers. Being dissatisfied
with the form of government, the proprietaries procured the
celebrated John Locke to draw a plan of government for the
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colony, which was adopted and proved to be impracticable; it was
highly exceptionable on account of its disregard of the
principles of religious toleration and national liberty, which
are now universally admitted. After a few years of unsuccessful
operation it was abandoned. The colony had been settled at two
points, one called the Northern and the other the Southern
settlement, which were governed by separate legislatures. In
1729, the proprietaries surrendered their charter, when it became
a royal province, and was governed by a commission and a form of
government in substance similar to that established in other
royal provinces. In 1732, the territory was divided, and the
divisions assumed the names of North Carolina and South Carolina.
2. The constitution of, North Carolina was adopted December 18,
1776. To this constitution ammendments were made in convention,
June 4, 1835, which were ratified by the people on the 9th day of
November of the same year, and took effect on the 1st day of
January, 1836.
3. The powers of the government are distributed into three
branches, the legislative, the executive, and the judiciary.
4. - §1. The legislative power is vested in a senate and in a
house of commons, and both are denominated the general assembly.
These will be separately, considered.
5. - 1st. In treating of the senate, it will be proper to take
a view of, 1. The qualifications of senators. 2. Of electors of
senators. 3. Of the number of senators. 4. Of the time for which
they are elected.
6. - 1. The first article, section 3, of the amendments,
provides: All freemen of the age of twenty-one years, (except as
is hereinafter declared,) who have been inhabitants of any one
district within, the state twelve months immediately preceding
the day of any election, and possessed of a freehold within the
same district of fifty acres of land for six months next before
and at the day of election, shall be entitled to vote for a
member of the senate; consequently no free negro or free person
of mixed blood, descended from negro ancestors to the fourth
generation inclusive, can be a senator, as such persons cannot be
voters. The 4th article, sec. 2, of the amendments, declares that
no person who shall deny the being of God, or the truth of the
Christian
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religion, or the divine authority of tlie Old or New Testament,
or who shall hold religious principles incompatible with the
freedom or safety of the state, shall be capable of holding any
office or place of trust or profit in the civil department within
this state. And the fourth section of the article directs that no
person who shall hold any office or place of trust or profit
under the United States, or any department thereof, or under this
state, or any other state or government, shall hold or exercise
any other office or place of trust or profit under the authority
of this state, or be eligible to a seat in either house of the
general assembly: Provided, that nothing herein contained shall
extend to officers, in the militia or justices of the peace. The
31st section of the constitution provides that no clergyman, or
preacher of the gospel, of any denomination, shall be capable of
being a member of either the senate, house of commons, or council
of state, while he continues in the exercise of his pastoral
function. 2. The first article of the amendments, provides,
section 3, §2, that all free men of the age of twenty-one years,
(except as hereinafter declared,) who have been inhabitants of
any one district within the state twelve months immediately
preceding the day of any election, and possessed of a freehold
within the same district of fifty acres of land, for six months
next before and at the day of election, shall be entitled to vote
for a member of the senate. And §3, no negro, free, mulatto, or
free person of mixed blood, descended from negro ancestors to the
fourth generation inclusive, (though one ancestor of each
generation may have been a white person,) shall vote for members
of the senate or house of commons. 3. The senate consists of
fifty representatives. Amendm. art. 1, s. 1. 4. They are chosen
biennially by ballot. Id.
7. - 2d. The house of commons will be considered in the same
order which has been observed in speaking of the senate. 1. The
sixth section of the constitution requires that each member of
the house of commons shall have usually resided in the county in
which he is chosen for one year immediately preceding his
election, and for six months shall have possessed, and continue
to possess, in the county which be represents, not less than one
hundred acres of land in fee, or for the term of his own life.
The disqualifications of persons for membersbip in the house of
commons will be found ante, under the bead senate.
2. The qualifications of voters for members of the house of
commons are, by sect. 8 of the constitution, that all freemen of
the age of twenty-one years, who have been inhabitants of any one
county within the state twelve months immediately preceding the
day of any election, and shall have paid public taxes, shall be
entitled to vote for members of the house of commons, for the
county in which be resides. And by §9, that all persons possessed
of a freehold, in any town in this state, having a right of
representation, and also all freemen, who have been inhabitants
of any such town twelve months next before, and at the day of
election, and shall have paid public taxes, shall be entitled to
vote for a member to represent such town in the house of commons;
Provided, always, that this section shall not entitle any
inhabitant of such town to vote for members of the house of
commons for the county in which he may reside; nor ally
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freeholder in such county, who resides without or beyond the
limits of such town, to vote for a member of the said town. But
mulattoes, or persons of a mixed blood, are not voters. Amendm.
art. 1, sect. 3, §3.
3. The Amendments, article 1, section 1, §§2, 3, and 4, direct
bow the house of commons shall be composed, as follows: The
house of commons shall be composed of one hundred and twenty
representatives, biennially chosen by ballot, to be elected by
counties according to their federal population; that is,
according to their respective numbers, which shall be determined
by adding to the whole number of free persons, including those
bound to service for a term, of years, and excluding Indians not
taxed, three-fifths of all other, persons; and each county shall
have at least one member in the house of commons, although it may
not contain the requisite ratio of population. This apportionment
shall be made by the general assembly, at the respective times
and periods when the districts for the senate are hereinbefore
directed to be laid off; aud the said apportionment shall be
made according to an enumeration to be ordered by the general
assembly, or according to the census which may be taken by order
of congress, next preceding the miking such apportionment. In
making the apportionment in the house of commons, the ratio of
representation shall be ascertained by dividing the amount of
federal population in the state, after deducting that
comprehended within those counties which do not severally contain
the one hundred and twentieth part of the entire federal
population aforesaid, by the number of representatives less than
the number assigned to the said counties. To each county
containing the said ratio, and not twice the said ratio, there
shall be assigned one representative; 'to each county containing
twice, but not three times the said ratio, there shall be
assigned two representatives, and so on progressively; and then
the remaining representatives shall be assigned severally to the
counties having the largest fractions. 4. They are elected
biennially.
8. - §2. The executive power is regulated by the amendments of
the constitution, article 2, as follows, namely:
§1. The governor shall be chosen by the qualified voters for
the members of the house of commons, at such time and places as
members of the general assembly are elected.
§2. He shall hold Iiis office for the term of two years from
the time of bis installation, and until another shall be elected
and qualified; but he shall not be eligible more than four years
in any term of six years.
§3. The returns of every election for governor shall be sealed
up and transmitted to the seat of government, by the returning
officers, directed to the speaker of the senate, who shall open
and publish them in the presence of a majority of the members of
both houses of the general assembly. The person having the
highest number of votes shall be governor; but if two or more
shall be equal and highest in votes, one of them shall be chosen
governor by joint vote of both houses of the general assembly.
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§4. Contested elections for governor shall be determined by
both houses of the general assembly, in such manner as shall be
prescribed by law., SS 5. The governor elect shall enter on the
duties of the office on the first day of January next after his
election, having previously taken the oath of office in the
presence of the members of both branches of the general assembly,
or before the chief justice of the supreme court, who, in case
the governor elect should be prevented from attendance before the
general assembly, by sickness or other unavoidable cause, is
authorized to administer the same.
9. - §3. Tbejudicial powers are vested in supreme courts of
law and equity, courts of admiralty, and justices of the peace.
NOSOCOMI, civil law. Persons who have the management and care
of hospitals for paupers. Clef Lois Rom. mot Administrateurs.
NOT FOUND. These words are endorsed ou a bill of indictment by
a grand jury,.when they have not sufficient evidence to find a
true bill; the same as Ignoramus. (q. v.)
NOT GUILTY, pleading. The general issue in several sorts of
actions. It is the general issue.
2. In trespass, its form is as follows: "And the said C D, by
E F, his attorney, comes and defends the, force and injury, when,
&c., and says, that he is not guilty of the said trespasses above
laid to his charge, or any part thereof, in the mannor and form
as the said A B hath above complained. And of this the said C D
puts himself upon the country."
3. Under this issue the defendant may give in evidence any
matter which directly controverts the truth of any allegation,
which the plaintiff on such general issue will be bound to prove;
1 B. & P. 213; and no person is bound to justify who is not,
prima facie, a trespasser. 2 B. & P. 359: 2 Saund. 284, d. For
example, the plea of not guilty is proper in trespass to persons,
if the defendant have committed no assault, battery, or
imprisonment, &c.; and in trespass to personal property, if the
plaintiff had no property in the goods, or the defendant were not
guilty of taking them, &c.; and in trespass to real property,
this plea not only puts in issue the fact of trespass, &c , but
also the title, which, whether freehold or possessory in the
defendant, or a person under whom he claims, may be given in
evidence under it, which matters show, prima facie, that the
right of possession, which is necessary in trespass, is not in
the plaintiff, but in the defendant or the person under whom he
justifies. 8 T. R. 403; 7 T. R. 354; Willes, 222; Steph. PI.
178; 1 Chit. PI. 491, 492.
4. In trespass on the case in general, the formula is as
follows: " And the said C D, by E F his attorney, comes and
defends the wrong and injury when, &c., and says, that he is not
guilty of the premises above laid to his charge, in manner and
form as the said A B hath above complained. And of this the said
C D puts himself on the country."
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5. This, it will be observed, is a mere traverse, or denial, of
the facts alleged in the declaration; and therefore, on
principle, should be applied only to cases in which the defence
rest's on such denial. But here a relaxation has taken place, for
under this plea, a defendant is permitted not only to contest the
truth of the declaration, but with some exceptions, to prove any
matter of defence, that tends to show that the plaintiff has no
cause of action, though such matters be in confession and
avoidance of the declaration; as, for example, a release given,
or satisfaction made. Steph. Pl. 182-3; 1 Chit. Pi. 486.
6. In trover. It is not usual in this action to plead any other
plea, except the statute of limitations; and a release, and the
bankruptcy of the plaintiff, may be given in evidence under the
general issue. 7 T. R. 391
7. In debt on a judgment suggesting a devastavit, an executor
may plead not guilty. 1 T. R. 462.
8. In criminal cases, when the defendant wishes to put himself
on his trial, he pleads not guilty.
NOT POSSESSED. A plea sometimes used in actions of trover, when
the defendant was not possessed of the goods at the commencement
of the action. 3 Mann. & Gr. 101, 103.
NOTARY or NOTARY PUBLIC. An officer appointed by the executive,
or other appointing power, under the laws of different states.
2. Their duties are generally prescribed by such laws. The most
usual of which are, l. To attest deeds, agreements and other
instruments, in order to give them authenticity. 2. To protest
notes, bills of exchange, and the like. 3. To certify copies of
agreements and other instruments.
3. By act of congress, Sept. 16, 1850, Minot's Statutes at
Large. U. S. 458, it is enacted, That, in all cases in which,
under the laws of the United States, oaths, or affirmations, or
acknowledgments may now be taken or made before any justice or
justices of the peace of any state or territory, such oaths,
affirmations, or acknowledgments may be hereafter also taken or
made by or before any notary public duly appointed in any state
or territory, aud, when certified under, the hand and official
seal of such notary, shall have the name force and effect as if
taken or made by or before such justice or justices of the peace.
And all laws and parts of laws for punishing perjury, or
subornation of perjury, committed in any such oaths or
affirmations, when taken or made before any such justice of the
peace, shall apply to any such offence committed in any oaths or
affirmations which may be taken under this act before a notary
public, or commissioner, as hereinafter named: Provided always,
That on any trial for either of these offences, the seal and
signature of the notary shall not be deemed sufficient in
themselves to establish the official character of such notary,
but the same shall be shown by other and proper evidence.
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4. Notaries, are of very ancient origin they were well known
among the Romans, and exist in every state of Europe, and
particularly on the continent.
5. Their acts have long been respected by the custom of
merchants and by the courts of all nations. 6 Toull. n. 211,
note. Vide, generally, Chit. Bills, Index, h. t.; Chit. Pr.
Index,, h. t.; Burn's Eccl. Law, h. t.; Bro. Off. of a Not.
passim; 2 Har. & John. 396; 7 Verm. 22; 8 Wheat. 326; 6 S. &
R. 484; 1 Mis. R. 434.
NOTE, estates, conv., practice. The fourth part of a fine of
lands: it is an abstract of the writ of covenant and concord,
and is only a, doequet taken by the chirographer, from which he
draws up the indenture. It is sometimes taken in the old books
for the concord. Cruise, Dig. tit. 35, c. 2, 51.
NOTE OF HAND, contracts. Another name, less technical, for a
promissory note. (q. v.) 2 Bl. Com. 467. Vide Bank note;
Promissory note, Reissuable note.
NOTES, practice. Short statements of what transpires on the
trial of a cause; they are generally made by the judge and the
counsel, for their Own satisfaction.
2. They are not, per se, evidence on another trial, not being
in the nature of a deposition. 4 Binn. R. 110. But such notes
were admitted in a court of equity as evidence of what had been
stated by a witness at the trial of an action at law. 3 Y. & C.
413., And a verdict was amended, in a court of law, from the
notes of the judges. 11 Ad. & El. 179; S. C. 39 Eng. C L R. 38;
see 5 Whart. 156; 5 Watts & S. 51.
3. Notaries formerly made notes, matrix, by abbreviations, from
which they made their records, and engrossed the acts which were
passed before them. This original is now called the minutes. The
notes of the prothonotaries and clerks of courts are called
minutes.
NOTICE. The information given of some act done, or the
interpellation by which some act is required to be done. It also
signifies, simply, knowledge; as A had notice that B was a
slave. 5 How. S. C. Rep. 216; 7 Penn. Law Journ. 119.
2. Notices should always be in writing; they should state, in
precise terms, their object, and be signed by the proper person,
or his authorized agent, be dated, and ad- dressed to the person
to be affected by them.
3. Notices are actual, as when they are directly given to the
party to be affected by them; or constructive, as when the party
by any circumstance whatever, is put upon inquiry, which amounts
in judgment of law to notice, provided the, inquiry becomes a
duty. Vide 2 Pow. Mortg. 561 to .662; 2 Stark. Ev. 987; 1 Phil.
Ev. Index, b. t.; 1 Vern. 364, n.; 4 Kent, Com. 172; 16 Vin.
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Ab. 2; 2 Supp. to Ves. jr. 250; Grah. Pr. Index, h. t.; Chit.
PI. Index, h. t.; 2 Mason, 531; 14 Pick. 224; 4 N. H. ]Rep.
397; 14 S. & R. 333; Bouv. Inst. Index, h. t.
4. With respect to the necessity for giving notice, says Mr.
Chitty, 1 Pr. 496, the rules of law are most evidently founded on
good sense and so as to accord with the intention of the parties.
The giving notice in certain cases obviously is in the nature of
a condition precedent to the right to call on the other party for
the performance of his engagement, wbether his contract were
express or implied. Thus, in the familiar instance of bills of
exchange and promissory notes, the implied contract of an
indorser is, that be will pay the bill or note, provided it be
not paid, on presentment at maturity, by the acceptor or maker,
(being the party primarily liable, and provided that he (the
indorser) has due notice of the dishonor, and without which be is
discharged from all liability; consequently, it is essential for
the holder to be prepared to prove affirmatively that such notice
was given, or some facts dispensing with such notice.
5. Whenever the defendant's liability to perform an act depends
on another occurrence, which is best known to the plaintiff, and
of which the defendant is not legally bound to take notice, the
plaintiff must prove that due notice, was in fact given. So in
cases of insurances on ships, a notice of abandonment. is
frequently necessary to enable the assured plaintiff. to proceed
as for a total lose when something remains to be saved, in
relation to which, upon notice, the insurers might themselves
take their own measures.
6. To avoid doubt or ambiguity in the terms of the notice, it
may be advisable to give it in writing, and to preserve evidence
of its delivery, as in the case of notices of the dishonor of a
bill.
7. The form of the notice may be as subscribed, but it must
necessarily vary in its terms according to the circumstances of
each case. So, in order to entitle a party to insist upon a
strict and exact performance of a contract on the fixed day for
completing it, and a fortiori to retain a deposit as forfeited, a
reasonable notice must be given of the intention to insist on a
precise performance, or be will be considered as having waived
such strict right. So if a lessee or a purchaser be sued for the
recovery of the estate, and he have a remedy over against a third
person, upon a covenant for quiet enjoyment, it is expedient
(although not absolutely necessary) referring to such covenant.
NOTICE, AVERMENT OF, in pleading. This is frequently necessary,
particularly in special actions of assumpsit.
2. When the matter alleged in the pleading is to be considered
as lying more properly in the knowledge of the plaintiff, than of
the defendant, then the declaration ought to state that the
defendant had notice thereof; as when the defendant promised to
give the plaintiff as much for a commodity as another person had
given, or should give for the like.
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3. But where the matter does not lie more properly in the
knowledge of the plaintiff, than of the defendant, notice need
not be averred. 1 Saund. 117, n. 2; 2 Saund. 62 a, n. 4;
Freeman, R. 285. Therefore, if the defendant contrasted to do a
thing, on the performance of an act by a stranger, notice need
not be averred, for it lies in the defendant's knowledge as much
as the plaintiff's, and he ought to take notice of it at his
peril. Com. Dig. Pleader, C 75. See Com. Dig. Id. o 73, 74, 75;
Vin. Abr. Notice; Hardr. R. 42; 5 T. R. 621.
4. The omission of an averment of notice, when necessary, will
be fatal on demurrer or judgment by default; Cro. Jac. 432; but
may be aided by verdict; 1 Str. 214; 1 Saund. 228, a; unless
in an action against the drawer of a bill, when the omission of
the averment of notice of non-payment by the acceptor is fatal,
even after verdict. Doug. R. 679.
NOTICE OF DISHONOR. The notice given by the holder of a bill of
exchange or promissory note, to a drawer or endorser on the same,
that it has been dishonored, either by not being accepted in the
case of a bill, or paid in cue of an accepted bill or note.
2. It is proper to consider, 1. The form of the notice; 2. By
whom it is to be given; 3. To whom. 4. When; 5. Where; 6. Its
effects; 7. When a want of notice will be excused; 8. When it
will be waived.
3. - SS1. Although no precise form of words is requisite in
giving notice of dishonor, yet such notice must convey, 1. A true
description of the bill or note so as to ascertain its identity;
but if the notice cannot mislead the party to whom it is sent,
and it conveys the real fact without any. doubt, although there
may be a small variance, it cannot be material, either to regard
his rights or to avoid his responsibility. 11 Wheat. 431, 436;
Story on Bills, SS 390; 11 Mees. & Wels. 809. 2. The notice must
contain an assertion that ther bill has been duly presented to
the drawee for acceptance, when acceptance has been refused, or
to the acceptor of a bill, or maker of a note for payment at its
maturity, and dishonored. 4 C. 340; 7 Bing. 530; l Bing. N. C.
192; 1 M. & G. 76; 3 Bing. N. C. 688; 10 A. & E. 125. 3. The
notice must state that the holder, or other person giving the
notice, looks to the person to whom the notice is given, for
reimbursement and indemnity. Story on Bills, SS 301, 390.
Although in strictness this may be required, where the language
is otherwise doubtful and uncertain, yet, in general, it will be
presumed where in other respects the notice is sufficient. 2 A. &
E. N. R. 388, 416; 11 Mees. & Wels. 372; Sto on P. N. SS 353;
11 Wheat. 431, 437; 2 Pet. 543; 2 John. Cas. 237; 2 Hill, (N.
Y.) R. 588; 1 Spear, R. 244.
4.-SS 2. In general the notice may be given by the holder or
some one authorized by him; Story on Bills, SS 303, 304; or by
some one who is a party and liable to pay the bill or note. But
notice given by a stranger is not sufficient. Chit. on Bills,
368, 8th edit.; 1. T. R. 170; 8 Miss. 704; 16 S. & R. 157,
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160. On the death of the holder, his executor or administrator is
required to give notice, and, if none be then Appointed, the
notice must be given within a reasonable time after one may be
appointed. Story on P. N. SS 3Q4. When the bill or note i's held
by partners, notice by any of them is sufficient; and when
jointholders have the paper, and one dies, the notice may be
given by the survivor; the assignee of the holder who is a
bankrupt, must give notice, but if no assignee be appointed when
the paper becomes due, the notice must be given without delay
after his appointment; but it seems the bankrupt holder may
himself give the notice. Story on P. N. SS 305. If -an infant be
the holder the notice may be given by him, or if he has a
guardian, by the latter.
5.-SS 3. The holder is required to give notice to all the
parties to whom he means to resort for payment, and, unless
excused in point of law, as will be stated below, such parties
will be exonerated, and absolved from all liability on such bill
or note. Story on P. N. SS 307. But a party who purchases a bill,
and, without endorsing it, transmits it on account of goods
ordered by him, is not entitled to notice of its dishonor. 1
Wend. 219; 4 Wash. C. C. 1. In cases of partnership, notice to
either of the partners is sufficient. Story on Bills, SS 299;
Story on P. N. SS 308; 20 John. 176; 2 How. Sup. Ct. It. 457.
Notice should be given to each of several joint endorsers, who
are not partners. 1 Conn. 368; 4 Cowen, 126; 6 Hill, (N. Y.) R.
282; Story on Bills, SS 299. Notice to an absent endorser may be
given to bis general agent. 1 M. & Selw. 545; 16 Martin, (Lo.)
R. 87. See 12 Wheat. 599; 4 Wash. C. C. 464; 3 Wend. 276.
6. - SS 4. The notice of dishonor must be given to the parties
to whom the holder means to resort, within a reasonable time
after the dishonor of the bill, when it is dishonored for
non-acceptance, and he must not delay giving notice until the
bill has been protested for non-payment. Bull. N. P. 271; 12
East, 434; 1 Harr. & J. 187; 1 Dall. 235; 2 Dall. 219, 233; 1
Yeates, 147; 3 Wash. C. C. 396; 1 Bay, 177; 11 John. 187; 10
Wend. 304; 13 Wend. 133; 5 Halst. 139; 4 J. J. Marsh. 61;
Paine, 156; 2 Hayw. 332; 2 Marsh. 616. Though formerly it was
doubtful whether the court or jury were to judge as to the
reasonableness of the notice in respect to time; 1 T. R. 168;
yet, it -seems now to be settled, that when the facts are
ascertained, it is a question for the court and 'not for the
jury. 10 Mass. 84, 86; 6 Watts & S. 399; 3 Marsh. 262; 2
Harris R. 488;-Penn. 916; 1 N. H. Rep. 140; 17 Mass. 449, 453;
2 Aik. 9; Rice, R. 240; 2 Hayw. 45.
7.-SS 5. In considering as to where the notice should be given,
a difference is made between cases, where the parties reside in
the same town, and where they do not. 1. When both parties reside
in the same town or city, the notice should either be personal or
at the domicil or place of business of the party notified, so
that it may reach him on the very day he is entitled to notice. 1
M. & S. 545, 554; 2 Pet. 100; 1 Pet. 578, 583; Story on Bills,
SSSS 284-290; 1 Rob. Lo. R. 572; 3 Rob. Lo. 261; 20 John. 372;
1 Conn. 329; 17 Mart.,Lo. 137, 158,
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359; 19 Mart. Lo. 492; Story on P. N. 322. But see 28 Pick.
305; 6 Watts & Serg. 262; 2 Aik. 263; 8 Ohio, 507, 510; Rice,
R. 240, 243; 1 Litt. R. 194. If the notice be put in the post
office, the holder must prove it reached the endorser. 2 Pet.
121. But in those towns where they have letter carriers, who
carry letters from the post office and deliver them at the houses
or places of business of the parties, if the notice be put in the
post office in time to be delivered on the same day, it will be
sufficient. Chit. on Bills, 504, 508, 513, 8th edit.; 1 Pet.
578; 11 John. 231. 2. When the parties reside in different towns
or cities, the notice may be sent by the post, or a special
messenger, or a private person, or by any other suitable or
ordinary conveyance. Chit. on Bills, 518, 8th ed.; Story on P.
N. SS 324; Bayl. on Bills, eh. 7, SS 2; 1 Pet. 582. When the
post is resorted to, the holder has the whole day on which the
bill becomes due to prepare his notice, and if it be put in the
post office on the next day in time to go by either mails, when
there is more than one, it will in general be sufficient. 17
Mass. 449, 454; 1 Hill, (N. Y.) R. 263; but see contra, 2-Rob.
Lo. R. 117.
8. - SS6. The effect of the notice of dishonor, when properly
given, and when it is followed by a protest, when a protest is
requisite, will render the drawer and endorsers of a bill or the
endorsers of a note liable to the holder. But the drawer and
endorsers may tender the money at any time before a writ has been
issued; though the acceptor must pay the bill on present-
ment, and cannot plead a subsequent tender. 1 Marsh. 36; 5
Taunt. 240; S. C. 8 East, 168.
9. - SS 7. The same reasons which will excuse the want of a
presentment, will in general excuse a want of protest. See
Presentment, contracts, n. 8, 9.
10.-SS 8. A want of notice may be waived by the party to be
affected, after a full knowledge of the facts that the holder has
no just cause for the neglect or omission. Story on P. N. SS 858.
See Presentment, contracts, n. 9.
NOTICE, TO PRODUCE PAPERS, practice, evidence. When it is
intended to give seoondary evidence of a written instrument or
paper, which is in: the possession of the opposite party, it ii,
in general, requisite to give him notice to produce the same on
the trial of the cause, before such secondary evidence can be
admitted.
2. To this general rule there are some exceptions: 1st. In
cases where, from the nature of the proceedings, the party in
possession of the instrument has notice that he is charged with
the possession of it, as in the case of trover for a bond. 14
East, R. 274; 4 Taunt. R. 865; 6 S. & R. 154; 4 Wend. 626; 1
Camp. 143. 2d. When the party in possession Las obtained the
instrument by fraud. 4 Esp. R. 256. Vide 1 Phil. Ev. 425; 1
Stark. Ev. 862; Rosc. Civ. Ev. 4.
3. It will be proper to consider the form of the notice; to
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whom it should be given; when it must be served; and its
effects.
4.-1. In general, a notice to produce papers ought to be given
in writing, and state the title of the cause in which it is
proposed to use the papers or instruments required. 2 Stark. R.
19; S. C. 3 E. C. L. R. 222. It seems, however, that the notice
may be by parol. 1 Campb. R. 440. It must describe with
sufficient certainty the papers or instruments called! for, and
must not be too general, and by that means be uncertain. R. & M.
341; McCl. & Y. 139.
5.-2. The notice may be given to the party himself, or to his
attorney. 3 T. R. 806; 2 T. It. 203, n.; R. & M. 827; 1 M. &
M. 96.
6.-3. The notice must be served a reasonable time before trial,
so as to afford an opportunity to the party to search for and
produce the intrument or paper in question. 1 Stark. R. 283; S.
C. 2 E. C. L. R. 391; R. & M. 47, 827; 1 M. & M. 96, 335, n.
7.-4. When a notice to produce an instrument or paper in the
cause has been proved, and it is also proved that such paper or
instrument was, at the time of the notice, in the hands of the
party or his privy, and, upon request in court, he refuses or
neglects to produce it, the party having given such notice, and
made such proof, will he entitled to give secondary evidence of
such paper or instrument thus withheld.
8. The 15th section of the, judiciary act of the United States
provides, " that all the courts of the United: States shall have
power, in the trial of actions at law, on motion, and due notice
there of being given, to require the parties to produce books or
writings in their possession or power, which contain evidence
pertinent to the issue, in cases and under circumstances where
they might be compelled to produce the same by the ordinary rules
of proceeding in chancery; and if a plaintiff shall fail to
comply with such order to produce books or writings, it shall be
lawful for the courts, respectively, on motion, to give the like
judgment for the defendant, as in cases of nonsuit; and if the
defendant fail to comply with such order to produce books or
writings, it shall be lawful for the courts, respectively, on
motion as aforesaid, to give judgment against him or her by
default."
9. The proper course to pursue under this act, is to move the
court for an order on the opposite party to produce such books or
papers. See, as to the rules in courts of equity to compel the
production of books and papers, 1 Baldw. Rep. 388, 9; 1 Vern.
408, 425; 1 Sch. & Lef. 222; 1 P. Wins. 731, 732; 2 P. Wms.
749; 3 Atk. 360. See Evidence, secondary.
NOTICE TO QUIT. A request from a landlord to his tenant, to quit
the premises lessed, and to give possession of the same to him,
the landlord, at a time therein mentioned.
2. It will be proper to consider, 1. The form of the notice. 2.
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By whom it is to be given. 3. To whom. 4. The mode of serving it.
5. At what time it must be served. 6. What will amount to a
waiver of it.
3.-SS 1. The form of the notice. The notice or demand of
possession should contain a request from the landlord to the
tenant or person in possession to, quit the premises which he
holds from the landlord, (which premises ought to be particularly
described, as being situate in the street an city or place, or
township and county,) and to deliver them to him on or before a
day certain, generally, when the lease is for a year, the same
day of the year on which the lease commences. But where there is
some doubt as to the time when the lease is to expire, it is
proper to add, " or at the expiration of the current year of your
tenancy."
2 Esp. N. P. C. 589. It should be dated, signed by the landlord
himself, or by some person in his name, who has been authorized
him, and directed to the tenant. The notice must include all the
premises under the same demise;, for the landlord cannot
determine the tenancy as to part of the premises demised and
continue it as to the residue. For the purpose of bringing an
ejectment, it is not necessary that the notice should be in
writing, except when required to be so under an express agreement
b tween the parties. Com. Dig. Estate by Grant, G 11, n. p. But
it is the general and safest practice to give written notices and
it is a precaution which should always, when possible, be
observed, as it prevents mistakes, and renders the evidence
certain and correct. Care should be taken that the words of a
notice be clear and decisive, without ambiguity, or giving an
alternative to the tenant, for if it be really ambiguous or
optional, it will be invalid. Adams on Ej. 122.
4. -SS 2. As to the person by whom the notice is to be given. It
must be given by the person interested in the premises, or his
agent properly appointed. Adams on Ej. 120. As the tenant is to
act upon the notice at the time it is given to him , it is
necessary that it should be such as he may act upon with
security, and should, therefore, be binding upon all the parties
concerned at the time it is given. Where, therefore, several
persons are jointly interested in the premises, they all must
join in the notice, and if any of them be not a party at the time
no subsequent ratification by him will be sufficient by relation
to render the notice valid. 5 East, 491; 2 Phil. Ev. 184. But if
the notice be given by an agent, it is sufficient if his
authority is after wards recognized. 3 B. & A. 689.
5.-SS 3. As to the person to whom the notice should be given.
When the relation
of landlord and tenant subsists, difficulties can seldom occur
as to the party upon whom
the notice should be served. It should invariably be given to
the tenant, of the party serving the notice, notwithstanding a
part may have been underlet, or the whole of the premises may
have been assigned; Adams on Ej. 119; 2 New Rep. 330, and vide
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14 East, 234; unless, perhaps, the lessor has recognized the
sub-tenant as his tenant. l0 Johns. 270. When the
premises are in possession of two or more as joint-tenants or
tenants in common, the
notice should be to all; a notice addressed to all, and served
upon one only, will, how-
ever, be a good notice. Adams on Ej. 123.
6. - SS 4. As to the mode of, serving the notice. The person
about serving the notice should make two copies of it, both
signed by the proper person, then procure one or more respectable
persons for witnesses, to whom he should show the copies, who,
upon comparing them, and finding them alike, are to go with the
person who is to serve the notice. The person serving the notice
then in their presence, should deliver one of these copies to the
tenant personally, or to one of his family, at his usual place of
abode, although the same be not upon the demised premises; 2
Phil, Ev. 185; or serve it upon the person in possession; and
where the tenant is not in possession, a copy may be served on
him if he can be found, and another on the person in possession.
The witnesses should then, for the sake of security, sign their
names on the back of the copy of the notice retained, or
otherwise mark it so as to identify it, an they should also state
the manner in which the notice was served. In the case of a joint
demise to two defendants, of whom one alone resided upon this
premises, proof of the service of the notice upon him has been
held to be sufficient ground for the jury to presume that the
notice so served upon the premises, has reached the other who
resided in another place. 7 East, 553; 5 Esp. N. P. C. 196,
7.-SS 5. At what time it must be served. It must be given three
months before the expiration of the lease. Difficulties sometimes
arise as to the period of the commencement of the tenancy, and
when a regular notice to quit on any particular day is given, and
the time when the term began is unknown, the effect of such
notice as to its being evidence or not of the commencement of the
tenancy, will depend upon the particular circumstances of its
delivery; if the tenant having been applied to by bis landlord
respecting the time of the commencement of the tenancy, has
informed him, it began on a certain clay, and in consequence of
such information, a notice to quit on that day is given at a
subsequent period, the tenant is concluded by his act, and will
not be permitted to prove that in point of fact, the tenancy has
a different commencement; nor is it material whether the
information be the result of design or ignorance, as the landlord
is in both instances equally led into error. Adams on Ej. 130; 2
Esp. N. P. C. 635; 2 Phil. Ev. 186. In like manner if the
tenant at the time of delivery of the notice, assent to the terms
of it, it will waive any irregularity u to the period of its
expiration, but such assent must be strictly proved. 4 T. R. 361;
2 Phil. Ev. 183. When the landlord is ignorant of the time when
the term commenced, a notice to quit may be given not specifying
any particular day, but ordering the tenant in general terms to
quit and deliver up the possession of the premises, at the end of
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the current year of his tenancy thereof, which shall, expire next
after the end of three months from the date of the notice. See 2
Esp. N. P. C. 589.
8.-SS 6. What will amount to a waiver of the notice. The
acceptance of rent accruing subsequently to the expiration of the
notice is the most usual means by which a waiver of it may be
produced, but the acceptance of such rent is open to explanation;
and it is the province of the jury to decide with what views, and
under what circumstances the rent is paid and received. Adapms on
Ej. 139. If the money be taken with an express declaration that
the notice is not thereby intended to be waived, or accompanied
by other circumstances which may induce, an opinion that the
landlord did not intend to continue the tenancy, no waiver will
be produced by the acceptance; the rent must be paid and
received as rent, or the notice will remain in force. Cowp. 243.
The notice may also be waived by other acts of the landlord; but
they are generally open to explanation, and the particular act
will or will not be a waiver of the notice, according to the
circumstances which attend it. 2 East, 236; 10 East, 13; 1 T.
R. 53. It has been held that a notice to quit at the end of a
certain year is not waived by the landlord's permitting the
tenant to remain in possession an entire year after the
expiration of the notice, notwithstanding the tenant held by an
improving lease, that is, to clear and fence the land and pay the
taxes. 1 Binn. 333. In cases, however, where the act of the
landlord cannot be qualified, but must of necessity be taken as a
confirmation of the tenancy, as if he distrain for rent accruing
after the expiration of the notice, or recover in an action for
use and occupation, the notice of course will be waived. Adam on
Ej. 144; 1 H. BI. 311.
NOTING. The name of the minute made by a notary on a bill of
exchange, after it has been presented for acceptance or payment,
consisting of the initials of his name, the date of the day,
month ana year when such presentment was made, and the reason, if
any has been assigned, for nonacceptance or non-payment, together
with his charge. The noting is not indispensable, it being only a
part of the protest; it will not supply the protest. 4 T. R. 175
Chit. on Bills, 280, 398. See Protest.
NOTORIETY, evidence. That which is generally known.
2. This notoriety is of fact or of law. In general, the
notoriety of a fact is not sufficient to found a judgment or to
rely on its truth; 1 Ohio Rep. 207; but there are some facts of
which, in consequence of their notoriety, the court will, suo
motu, take cognizance; for example, facts stated in ancient
histories; Skin. 14; 1 Ventr. R. 149; 2 East, Rep. 464; 9
Ves. jr. 347; 10 Ves.jr. 854; 8 John. Rep. 385; 1 Binn. R.
399; recitals in statutes; Co. Lit. 19 b; 4 M. & S. 542; and
in the law text books; 4 Inst. 240; 2 Rags. 313; and the
journals of the legislatures, are considered of such notoriety
that they need not be otherwise proved.
3. The courts of the United States take judicial notice of the,
ports and waters of the United States, in, which the tide ebbs
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and flows. 3 Dall. 297; 9 Wheat. 374; 10 Wheat. 428; 7 Pet.
342. They take like notice of the boundaries, of the several
states and judicial districts. It would be altogether
unnecesrary, if not absurd, to prove the fact that London in
Great Britain or Paris in France, is not within the jurisdiction
of an American court, because the fact is notoriously known.
4. It is difficult to say what will amount to such notoriety as
to render any other proof unnecessary. This must depend upon many
circumstances; in one case, perhaps upon the progress of human
knowledge in the fields of science; in another, on the extent of
information on the state of foreign countries, and in all such
instances upon the accident of their being little known or
publicly communicated. The notoriety of the law is such that the
judges are always bound to take notice of it; statutes,
precedents and text books are therefore evidence, without any
other proof than, their production. Gresley, Ev. 293. The courts
of the United States take judicial notice of all laws and
jurisprudence of the several states in which they exercise
original or appellate jurisdiction. 9 Pet. 607, 624. 5. The
doctrine of the civil and canon laws is similar to this. Boehmer
in tit. 10, de probat. lib. 2, t. 19, n. 2; Mascardus, de probat
conclus. 1106, 1107, et seq.; Menock. de praesumpt. lib. 1,
quaest. 63, &c.; Toullier Dr. Civ. Frau. liv. 3, c. 6, n. 13;
Diet. de Jurisp. mot Notoriete; 1 Th. Co. Lit. 26, n. 16; 2 Id.
63, n. A; Id. 334, n. 6; Id. 513, n. T 3; 9 Dana, 23 12 Verm.
178; 5 Port. 382; 1 Chit. PI. 216, 225.
NOVA CUSTOMA. The name of an imposition or duty in England. Vide
Antiqua; Customs.
NOVA STATUTA. New statutes. The name given to the statutes
commencing with the reign of Edward III. Vide Vetera Statuta.
NOVAE NARRATIONES. The title of an ancient English book, written
during the reign of Edward III. It consists of declarations and
some other pleadings.
NOVATION, civil law. 1. Novation is a substitution of a new for
an old debt. The old debt is extinguished by the new one
contracted in its stead; a novation may be made in three
different ways, which form three distinct kinds of novations.
2. The first takes place, without the intervention of any new
person, where a debtor contracts a new engagement with his
creditor, in consideration of being liberated from the former.
This kind has no appropriate name, and is called a novation
generally.
3. The second is that which takes place by the intervention of a
new debtor, where another person becomes a debtor instead of a
former debtor, and is accepted by the creditor, who thereupon
discharges the first debtor. The person thus rendering himself
debtor for another, who is in consequence discharged, is called
expromissor; and this kind of novation is called expromission.
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4. The third kind of novation takes place by the intervention of
a new creditor where a debtor, for the purpose of being
discharged from his original creditor, by order of that creditor,
contracts some obligation in favor of a new creditor. There is
also a particular kind of novation called a delegation. Poth.
Obl. pt. 3, c. 2, art. 1. See Delegation.
5.-2. It is a settled principle of the common law, that a mere
agreement to substitute any other thing in lieu of the original
obligation is void, unless actually carried into execution and
accepted as satisfaction. No action can be maintained upon the
new agreement, nor can the agreement be pleaded as a bar to the
original demand. See Accord. But where an agreement is entered
into by deed, that deed gives, in itself, a substantive cause of
action, and the giving such deed may be sufficient accord and
satis faction for a simple contract debt. 1 Burr. 9; Co. Litt.
212, b.
6. The general rule seems to be that if one indebted to another
by simple contract, give his creditor a promissory note, drawn by
himself, for the same sum, without any new consideration, the new
note shall not be deemed a satisfaction of the original debt,
unless so intended and accepted by the creditor. 15 Serg. &
Rawle, 162; 1 Hill's N. Y. R. 516; 2 Wash. C. C. Rep. 191; 1
Wash. C. C. R. 156, 321; 2 John. Cas. 438; Pet. C. C. Rep. 266;
2 Wash. C. C. R. 24, 512; 3 Wash. C. C. R. 396: Addis. 39; 5
Day, 511; 15 John. 224; 1 Cowen, 711; see 8 Greenl. 298; 2
Greenl. 121; 4 Mason, 343; 9 Watts, 273; 10 Pet. 532; 6 Watts
& Serg. 165, 168. But if he transfer the note he cannot sue on
the original contract as long as the note is out of his
possession. 1 Peters' R. 267. See generally Discharge; 4 Mass..
Rep. 93; 6 Mass. R. 371; 1 Pick. R. 415; 5 Mass. R. 11; 13
Mass. R. 148; 2 N. H. Rep. 525; 9 Mass. 247; 8 Pick. 522; 8
Cowen, 390; Coop. Just. 582; Gow. on Partn. 185; 7 Vin. Abr.
367; Louis. Code, art. 2181 to 2194; Watts & S. 276; 9 Watts,
280; 10 S. R. 807; 4 Watts, 378; 1 Watts & Serg. 94; Toull.
h. t.; Domat, h. t.; Dalloz. Dict. h. t.; Merl. Rep. h. t.;
Clef des Lois Romaines, h. t.; Azo & Man. Inst. t. 11, c. 2, SS
4; Burge on Sur. B. 2, c. 5, p. 166.
NOVEL ASSIGNMENT. Vide New Assignment.
NOVEL DISSEISIN. The name of an old remedy which was given for a
new or recent disseisin.
2. When tenant in fee simple, fee tail, or for term of life, was
put out, and digseised of his lands or tenements, rents, find the
like; he might sue out a writ of assise or novel disseisin; and
if, upon trial, he could prove his title, and his actual seisin,
and the disseisin by the present tenant, be was entitled to have
judgment to recover his seisin and damages for the injury
sustained. 3 Bl. Com. 187. This remedy is obsolete.
NOVELLAE LEONIS. The ordinances of the emperor Leo, which were
made from the year 887 till the year 893, are so called. These
novels changed many rules of the Justinian law. This collection
contains one hundred and thirteen novels, written originally in
Greek, and afterwards, in 1560, translated into Latin, by
Agilaeus. - .
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NOVELS, civil law. The name given to some constitutions or laws
of some of the Roman emperors; this name was so given because
they were new or posterior to the laws which they had before
published. The novels were made to supply what bad not been
foreseen in the preceding laws, or to amend or alter the laws in
force.
2. Although the novels of Justinian are the best known, and when
the word novels only is mentioned, those of Justinian are gave
the name of novels to his constitution and laws. Some of the acts
of Theodosius, Valentinien, Leo, Severus, Anthemius, and others,
were, also called novels. But the novels of the emperors who
preceded Justinian bad not the force of law, after the enactment
of the law by order of that emperor. Those novels are not,
however, entirely useless, because the code of Justinian having
been composed mainly from the Theodosian code and the novels, the
latter frequently remove doubts which arise on the construction
of the code. The novels of, Justinian form the fourth part of the
Corpus Juris Civilis. They are directed either to some, officer,
or an archbisbop or bishop, or to some private individual of
Constantinople but they all had the force and authority of law.
The number of the novels is uncertain. The 118th novel is the
foundation and groundwork of the English statute of distribution
of intestate's effects, which has been copied into many states of
the Union. Vide 1 P. Wms. 27; Pr. in Chan. 593
NOVUS HOMO. A new man; -this term, is applied to a man who has
been pardoned of a crime, by which he is restored to society, and
is rebabilitated.
NOXAL ACTTON, civil law. A personal, arbitrary, and indirect
action in favor of one who has been injured by the slave of
another, by which the owner or master of the slave was compelled
either to pay the damages or abandon the slave. Vide Abandonment
for torts, and Inst. 4, 8; Dig. 9, 4; Code, 3, 41.
NUBILIS, civil law. One who is of a proper age to be married.
Dig. 32,51.
NUDE. Naked. Figuratively, this word is applied to various
subjects.
2. A nude contract, nudum pactum, q. v.) is one without a
consideration; nu de matter, is a bare allegation of a thing
done, without any evidence of it.
NUDE MATTER. A bare allegation unsupported by evidence.
NUDUM PACTUM, contracts. A contract made without a
consideration,; it is called a nude or naked contract, because
it is not clothed with the consideration required by law, in
order to give an action. 3 McLean, 330; 2 Denio, 403; 6
Iredell, 480; 1 Strobh. 329; 1 Kelly, 294; 1 Dougl. Mich. R.
188.
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2. There are some contracts which, in consequence of their
forms, import a consideration, as sealed instruments, and bills
of exchange, and promissory notes, which are generally good
although no consideration appears.
3. A nudum pactum may be avoided, and is not binding.
4. Whether the agreement be verbal or in writing, it is still a
nude pact. This has been decided in England, 7 T. R. 350, note;
7 Bro. P. C. 550; and in this country; 4 John. R. 235; 5 Mass.
R. 301, 392; 2 Day's R. 22. But if the contract be under seal,
it is valid. 2 B. & A. 551. It is a rule that no action can be
maintained on a naked contract; ex nudopacto non oritur actio:
2 Bl. Com. 445; 16 Vin. Ab. 16.
5. This term is borrowed from the civil law, and the rule which
decides upon the nullity of its effects, yet the common law has
not; in any degree been influenced by the notions of the civil
law, in defining what constitutes a nudum pactum. Dig. 19, 5, 5.
See on this subject a learned note in Fonbl. Eq. 335, and 2 Kent,
Com. 364. Toullier defines nudum pactum to be an agreement not
executed by one of the parties, tom. 6, n. 13, page 10. Vide 16
Vin. Ab. 16; 1 Supp. to Ves. jr. 514; 3 Kent, Com. 364; 1 it.
Pr. 113; 8 Ala. 131; and art. Consideration.
NUISANCE, crim. law, torts. This word means literally annoyance;
in law, it signifies, according to Blackstone, " anything that
worketh hurt, inconvenience, or damage." 3 Comm. 216.
2. Nuisances are either public or common, or private nuisances.
3.-1. A public or common nuisance is such an inconvenience or
troublesome offence, as annoys the whole community in general,
and not merely some particular person. 1 Hawk. P. C. 197; 4 Bl.
Com. 166-7. To constitute a Public nuisance, there must be such
'a number of persons annoyed, that the offence can no longer be
considered a private nuisance: this is a fact, generally, to be
judged of by the jury. 1 .Burr. 337; 4 Esp. C. 200; 1 Str. 686,
704; 2 Chit. Cr. Law, 607, n. It is difficult to define what
degree of annoyance is necessary to constitute a nuisance. In
relation to offensive trades, it seems that when such a trade
renders the enjoyment of life and property uncomfortable, it is a
nuisance; 1 Burr. 333; 4 Rog. Rec. 87; 5 Esp. C. 217; for the
neighborhood have a right to pure and fresh air. 2 Car. & P. 485;
S. C. 12 E. C. L. R. 226; 6 Rogers' Rec. 61.
4. A thing may be a nuisance in one place, which-is not so in
another; therefore the situation or locality of the nuisance
must be considered. A tallow chandler seeing up his baseness
among other tallow chandlers, and increasing the noxious smells
of the neighborhood, is not guilty of setting up a nuisance,
unless the annoyance is much increased by the new manufactory.
Peake's Cas. 91. Such an establishment might be a nuisance-in a
thickly populated town of merchants and mechanics, where Do such
business was carried on.
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5. Public nuisances arise in consequence of following particular
trades, by which the air-is rendered offensive and noxious. Cro.
Car. 510; Hawk. B. 1, c. 755 s. 10; 2 Ld. Raym. 1163; 1 Burr.
333; 1 Str. 686. From-acts of public indecency; as bathing in a
public river, in sight of the neighboring houses; 1 Russ. Cr.
302; 2 Campb. R. 89; Sid. 168; or for acts tending to a breach
of the public peace, as for drawing a number of persons into a
field for the purpose of pigeon-shooting, to the disturbance of
the neighborhood; 3 B. & A. 184; S. C. 23 Eng. C. L. R. 52; or
keeping a disorderly house; 1 Russ. Cr. 298; or a gaming house;
1 Russ. Cr. 299; Hawk . b. 1, c. 75, s. 6; or a bawdy house;
Hawk. b. 1, c. 74, s. 1; Bac. Ab. Nuisance, A; 9 Conn. R. 350;
or a dangerous animal, known to be such, and suffering him to go
at large, as a large bull-dog accustomed to bite people;
4 Burn's, Just. 678; or exposing a person having a contagious
disease, as the smallpox, in public; 4 M. & S. 73, 272; and the
like.
6.-2. A private nuisance is anything done to the hurt or
annoyance of the lands, tenements, or hereditaments of another. 3
Bl. Com. 1215; Finch, L. 188.
7. These are such as are injurious to corporeal inheritance's;
as, for example, if a man should build his house so as to throw
the rain water which fell on it, on my land; F. N. B. 184; or
erect his. building, without right, so as to obstruct my ancient
lights; 9 Co. 58; keep hogs or other animals so as to incommode
his neighor and render the air unwholesome. 9 Co. 58.
8. Private nuisances may also be injurious to incorporeal
hereditaments. If, for example, I have a way annexed to my
estate, across another man's land, and he obstruct me in the use
of it, by plowing it up, or laying logs across it, and the like.
F. N. B. 183; 2 Roll. Ab. 140.
9. The remedies for a public nuisance are by indicting the
party. Vide, generally, Com. Dig. Action on the case for a
nuisance; Bac. Ab. h. t.; Vin. Ab. h. t.; Nels. Ab. h. t.;
Selw. N. P. h. t.; 3 Bl. Com. c. 13 Russ. Cr. b. 2, c. 30; 1 0
Mass. R. 72 7 Pick. R. 76; 1 Root's Rep. 129; 1 John. R. 78; 1
S. & R. 219; 3 Yeates' R. 447; 3 Amer. Jurist, 85; 3 Harr. &
McH. 441; Rose. Cr. Ev. h. t.; Chit. Cr. L. Index, b. t.;
Chit. Pr. Index, b. t., and vol. 1, p. 383; Bouv. Inst. Index,
h. t.
NUL, law French. A barbarous word which means to convey a
negative; as, Nul tiel record, Nul tiel award.
NUL AGARD. No award. A plea to an action on an arbitration bond,
when the defendant avers that there was no legal award made. 3
Burr. 1730; 2 Stra. 923.
NUL DISSEISIN, pleading. No disseisin. A plea in a real action,
by which the defendant denies that there was any disseisin it is
a species of the general issue.
NUL TIEL RECORD, pleading. No such record 2. When a party claims
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to recover on the evidence of a record, as in an action on scire
facias, or when he sets up his defence on matter of record, as a
former acquittal or former recovery, the opposite party may plead
or, reply nul tiel record, there is no such record; in which
case the issue thus raised is called an issue of nul tiel record,
and it is tried by the court by the inspection, of the record.
Vide 1 Saund. 92, n. 3 12Vin. Ab.188; 1 Phil. Ev. 307,8; Com.
Dig. Bail, R. 8 - Certiorari, A l Pleader, 2 W 13, 38 - Record,
C; 2 McLean, 511; 7 Port. 110; 1 Spencer, 114.
NUL TORT, pleading No wrong. 2. This is a plea to a real action,
by which the defendant denies that he committed any wrong. It is
a species of general issue.
NUL WASTE, pleading. This is the general issue in an action of
waste. Co. Entr. 700 a, 708 a. The plea of, nul waste admits
nothing, but puts the whole declaration in issue; and in support
of this plea the defendant may give in evidence anything which
proves that the act charged is no waste, as that it happened by
tempest, lightning, and the like. Co. Litt. 283 a; 3 Saund. 238,
n. 5.
NULL. Properly, that which does not .exist; that which is not
in the nature of things. In a figurative sense it signifies that
which has no more effect than if it did not exist. 8 Toull. n.
320.
NULIA BONA. The retum made to a writ of fieri facias, by the
sheriff, when he has not found any goods of the defendant on
which he could levy. 3 Bouv. Inst. n. 3393.
NULLITY. Properly, that which does not exist; that which is not
properly in the nature of things. In a figurative sense, and in
law, it means that which has no more effect than if it did not
exist, and also the defect which prevents it from having such
effect. That which is absolutely void. 2. It is a yule of law
that what is absolutely null produces no effects whatever; as,
if a man bad a wife in full life, and both aware of the fact, he
married another woman, such second marriage would be nun and
without any legal effect. Vide Chit, Contr. 228; 3 Chit. Pr.
522; 2 Archb. Pr. K. B. 4th edit. 888; Bayl. Ch. Pr. 97. 3.
Nullities have been divided into absolute and relative. Absolute
nullities are those which may be insisted upon by any one having
an interest in rendering the act, deed or writing null, even by
the public authorities, as a second marriage while the former was
in full force. Everything fraudulent is null and void. Relative
nullities can be invoked only by those in whose favor the law has
been established, land, in fact, such power is less a nullity of
the act than a faculty which one or more persons have to oppose
the validity of the act. 4. The principal causes of nullities
are, 1. Defect of form; as, for example, when the law requires
that a will of land shall be attested by three witnesses, and it
is on attested by two. Vide Will.
5.-2. Want of will; as, if a man be compelled to execute a bond
by duress, it is null and void. Vide Duress.
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6.-3. The incapacities of the parties; as in the cases of
persons non compos mentis, of married women's contracts, and the
like.
7.-4. The want of consideration in simple contracts; as a
verbal promise without consideration.
8.-5. The want of recording, when the law requires that the
matter should be re- corded; as, in the case of judgments.
9.-6. Defect of power in the party who entered into a contract
in behalf of another; as, when an attorney for a special purpose
makes an agreement for his principal in relation to another
thing. Vide Attorney; Authority.
10. - 7. The loss of a thing which is the subject of a contract;
as, when A sells B horse, both supposing him to be alive, when in
fact he was dead. Vide Contract; Sale. Vide Perrin, Traite des
Nullites; Henrion, Pouvoir Municipal, liv. 2, c. 18; Merl. Rep.
h. t.; Dall. Diet. h. t. See art. Void.
NULIUS FILIUS. The son of no one; a bastard.
2. A bastard is considered nullius filius as far as regards his
right inherit. But the rule of nullius filius does not apply in
other respects.
3. The mother of a bastard, during its age of nurture, is
entitled to the custody of her child, and is bound to maintain
it. 6 S. & R. 255; 2 John. R. 375; 15 John. R. 208; 2 Mass. R.
109; 12 Mass. R. 387, 433; 1 New Rep. 148; sed vide 5 East,
224 n.
4. The putative father, too, is entitled to the custody of the
child as against all but the mother. 1, Ashm. 55. And, it seems,
that the putative father may maintain an action, as if his child
were legitimate, for marrying him without his consent, contrary.
to law. Addis. 212. See Bastard; Child; Father; Mother;,
Putative Father.
NULLUM ARBITRIUM, pleading. The name of a plea to an action on
an arbitration bond for not fulfilling the award, by which the
defendant asserts that there is no award.
NULLUM FECERUNT ARBITRIUM. The name of a plea to an action of
debt upon an obligation for the performance of an award, by which
the defendant denies that he submitted to arbitration, &c. Bac.
Ab. Arbitr. &c. G.
NUMBER. A collection of units. 2. In pleading, numbers must be
stated truly, when alleged in the recital of a record, written
instrument, or express contract. Lawes' PI. 48; 4 T. R. 314;
Cro. Car. 262; Dougl. 669; 2 Bl. Rep. 1104. But in other cases,
it is not in general requisite that they should be truly stated,
because they are not required to be strictly proved. If, for
example, in an action of trespass the plaintiff proves the
wrongful taking away of any part of the goods duly described in
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his declaration, he is entitled to recover pro tanto. Bac. Ab.
Trespass, I 2 Lawes' PI. 48.
3. And sometimes, when the subject to be described is supposed
to comprehend a multiplicity of particulars, a general
description is sufficient. A declaration in trover alleging the
conversion of " a library of books"' without stating their
number, titles, or quality, was held 'to be sufficiently certain;
3 Bulst. 31; Carth. 110; Bac. Ab. Trover, F 1; and in an
action for the loss of goods, by burning the plaintiff's bouse,
the articles may be described by the simple denomination of "
goods" or " divers goods." 1 Keb. 825; Plowd. 85, 118, 123;
Cro. Eliz. 837; 1 H. Bl. 284.
NUNC PRO TUNC, practice. This phrase, which signifies now for
then, is used to express that a thing is done at one time which
ought to have been performed at another. Leave of court must be
obtained to do things nunc pro tunc, and this is granted to
answer the purposes of justice, but never to do injustice A
judgment nunc pro tunc can be entered only when the delay has
arisen from the act of the court. 3 Man. Gr. & Sc. 970. Vide 1
V.. & B. 312; 1 Moll. R. 462; 13 Price, R. 604; 1 Hogan, R.
110.
NUNCIO. The name given to the Pope's ambassador. Nuncios are
ordinary or extraordinary; the former are sent upon usual
missionas, the latter upon special occasions.
NUNCIUS, international law, A messenger, a minister; the pope's
legate, commonly called a nuncio. It is used to express that a
will or testament. has been made verbally, and not in writing,
Vide Testament nuncupative; Will, nuncupative; 1 Williams on
Exec. 59; Swinb. Index, h. t.; Ayl. Pand. 359; 1 Bro. Civ.
Law, 288; Roberts on Wills, h. t.; 4 Kent, Com. 504; 2 Bouv.
Inst. n. 436.
NUNQUAM INDEBITATUS, pleading. A plea to an action of
indebitatus assumpsit, by which the defendant asserts that he is
not indebted to the plaintiff. 6 Carr. & P. 545 S. C. 25 English
Com. Law Rep. 535; 1 Mees. & Wels. 542, 1 Q. B. 77.
NUPER OBIIT, practice. He or she lately died. The name of a
writ, which in the English law, lies for a sister co-heiress,
dispossessed by her coparcener of lands and tenements, whereof
their father, brother, or any common ancestor died seised of an
estate in fee simple. Termes de la Ley, h. t.; F. N . B. 197.
NURTURE. The act of taking care of children and educating them:
the right to the nurture of children generally belongs to the
father till the child shall arrive at the age of fourteen years,
and not longer. Till then, he is guardian by nurture. Co. Litt.
38 b. But in special cases the mother will be preferred to the
father; 5 Binn. R. 520; 2 S. & R. 174; and after the death of
the father, the mother is guardian by nurture. Fl. 1. 1, c. 6;
Com. Dig. Guardian, D.
NURUS. A daughter-in-law. Dig. 50, 16, 50.
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