NAIL, A measure of length, equal to two inches and a quarter.
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,
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.
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.
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.
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
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
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 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.
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.
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.
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 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
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
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.√
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
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.
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 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
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
§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 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:
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
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
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
9. - §4. That the children of persons duly naturalized under any
of the laws of the United States, or who, previous to the 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
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 his admission as aforesaid, have resided within tlie
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
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 entitle him to be considered and deemed a citizen of the United
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
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
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
29. - §1. Be it enacted, &c. That the second section of the
act, entitled "An act to establish an uniform rule of 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
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, 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.
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.
3. In North Carolina; 1 M'Cord, R. 580; 2 Dev. R. 30; 3 Dev. 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
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, 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 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,
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.
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.
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.
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.
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
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
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 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.
v202. 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.
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
4. - 1. In those contracts which are made for the sole benefit of the
creditor, the debtor is responsible only for gross negligence, good faith alone
being required of him; as in tile 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.
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
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.
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, contracts. This term is applied to bills of
exchange and promissory notes, which are assignable by indorsement or
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 negotiability will be
unavailing. Esp. N. P. Cas. 180; 1 Bl. Rep. 295. Vide Blank Indorsement;
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 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
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
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
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.
NEUTRALITY, international law. The state of a nation which takes
no part between two or more other. nations at war with each other.
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 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
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 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
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.
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
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
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
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 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
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
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 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
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
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
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
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
3. By art. 3, the powers of the government are divided into three
distinct department, the legislative, executive and 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
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 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
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 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, commissions to all such officers as shall be required to be
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
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 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
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
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
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
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
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 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.
NEW PROMISE. A contract made, after the original promise has for
some cause been rendered, invalid, by which the promiser agrees to fulfil such
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
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 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 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.
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.
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.
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
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
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. v20 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.
"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
"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
" 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 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
"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.
"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
"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.
"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
"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
"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
"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.
"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
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
"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 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
"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
"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 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
"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
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
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. 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
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
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 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 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
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
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.
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 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.
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 of 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; 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 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
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, 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.
Räpert. 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."
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.
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
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 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
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,
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
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.
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,
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 possent: perinde sunt, ac si
scripta non essent. Dig. 50,17,73,3. Vide articles dmbiguity; Construction;
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.
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
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.
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 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
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 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
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
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 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.
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."
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.
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
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,
NOTE OF HAND, contracts. Another name, less technical, for a
promissory note. (q. v.) 2 Bl. Com. 467. Vide Bank note; Promissory 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.
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.
In- dex, 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
promis- sory notes, the implied contract of an in- dorser 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 essen- tial 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 oc- currence, which is best known to the plain- tiff, 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 ne- cessary to enable the assured plaintiff. to
proceed as for a total lose when sometbing remains to be saved, in relation to
which, upon notice, the in-surers 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 perform- ance 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 consi- dered 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 expe- dient (although not absolutely necessary) referring to
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.
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.
4. The omission of an averment of no- tice, when necessary, will be
fatal on de- murrer 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-pay- ment 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 dis- honor, 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 va- riance, 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 accept-
ance, 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 no- tice is given, for reimbursement and indem- nity.
Story on Bills, SS 301, 390. Although in strictness this may be required, where
the language is otherwise doubtful and uncer- tain, yet, in general, it will be
presumed where in other respects the notice is suffi- cient. 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, 160. On the death of the holder, his executor or administrator is
re- quired to give notice, and, if none be then Appointed, the notice must be
given within a reasonable time after one may be ap- pointed. 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 joint- holders 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 ap- pointed 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 ab- solved 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 dis- honor. 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 gene- ral
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 dis- honored 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
reasonable- ness 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, 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 con-
veyance. 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 re, sorted 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 dis- honor, when properly given,
and when it is followed by a protest, when a protest is requisite, will render
the drawer and en- dorsers 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 ten- der. 1 Marsh. 36; 5 Taunt. 240; S. C. 8
9. - SS 7. The same reasons which will excuse the want of a
presentment, will in general excuse a want of protest. See Pre- sentment,
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,
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 pos- session 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 instru-
ment 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 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 re- fuses 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 mo- tion 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 men- tioned.
2. It will be proper to consider, 1. The form of the notice. 2. 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 con- tain 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 ex- piration 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 pre- mises 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 be- 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, with- loat ambiguity, or giving an alternative to the
tenant, for if it be really ambiguous or op- tional, 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, there- fore, be binding upon all the parties
con- cerned at the time it is given. Where, therefore, several persons are
jointly inte- rested 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 ren- der 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 in- variably 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 14 East, 234; unless, perhaps, the
lessor has recognized the slb-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 no- tice should make two copies of it, both signed by the proper
person, then procure one or more respectable persons for wit- nesses, 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 posses- sion.
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, and 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 some- times arise as to the
period of the commence- ment of the tenancy, and when a regular notice to quit
on any particular day is given, and the time when the term began is un- known,
the effect of such notice as to its being evidence or not of the commencement
of the tenancy, will depend upon the par- ticular circumstances of its
delivery; if the tenant having been applied to by bis land- lord respecting the
time of the commence- ment 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 ex- piration, 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 the
current year of his tenancy thereof, which shall, ex- pire 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 ac- cruing subsequently to the expiration of the notice is the most usual
means by which a waiver of it may be produced, but the ac- ceptance of such
rent is open to explanation; and it is the province of the jury to decide with
what views, and under what circum- stances 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 par- ticular 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, not-
withstanding the tenant held by an improv- ing lease, that is, to clear and
fence the land and pay the taxes. 1 Binn. 333. In cases, however, where the act
of the land- lord cannot be qualified, but must of neces- sity be taken as a
confirmation of the ten- ancy, 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
exohange, 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 suffi- cient 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 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 pub- licly communicated. The notoriety of the law is such that the
judges are always bound to take notice of it; statutes, pre- cedents and text
books are therefore evi- dence, 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 An- tiqua; 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
NOVATION, civil law. 1. Novation is a substitution of a new for
an old debt. The old debt is extinguished by the new one con- tracted 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 in- tervention of any new
person, where a debtor contracts a new engagement with his credi- tor, 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 caned
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 particu- lar kind of novation called a
delegation. Poth. Obl. pt. 3, c. 2, art. 1. See Delega- tion.
5.-2. It is a settled principle of the common law, that a mere
agreement to sub- stitute 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 Ac- cord. 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 origi- nally in Greek, and afterwards, in 1560,
translated into Latin, by Agilaeus. - .
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 always intended, he was
not the first who 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
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,
NUBILIS, civil law. One who is of a proper age to be married.
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.
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
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.
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 com- mon, 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 diffi- cult to define what degree of
annoyance is necessary to constitute a nuisance. In rela- tion 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
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 neighbor-
ing 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 pur- pose of pigeon-shooting, to the disturbance of the neighborhood; 3 B.
& A. 184; S. C. 23 Eng. C. L. R. 52; or keeping a dis- orderly house; 1
Russ. Cr. 298; or a gaming house; 1 Russ. Cr. 299; Hawk . b. 1, c. 7 5, 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 small- pox, 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.
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, with- out right,
so as to obstruct my ancient lights; 9 Co. 58; keep hogs or other ani- mals so
as to incommode his neighor and render the air unwholesome. 9 Co. 58.
8. Private nuisances may also be in- jurious 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 de- fendant 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 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
inspec- tion, 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 com- mitted any wrong. It is a species of gene- ral issue.
NUL WASTE, pleading. This is the gene- ral issue in an action
of waste. Co. Entr. 700 a, 708 a. The plea of, nul waste ad- mits 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, light- ning, 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 abso- lutely null produces no
effects whatever; as, if a man bad a wife in full life, and both aware of the
fact, he married another wo- man, 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 ab- solute 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 fraudu- lent 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
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.
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 with- out 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 re- lation to another thing. Vide Attorney;
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; Hen- rion, Pouvoir
Municipal, liv. 2, c. 18; Merl. Rep. h. t.; Dall. Diet. h. t. See art.
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 main- tain an action, as if his child were legiti- mate, for
marrying him without his consent, contrary. to law. Addis. 212. See Bas- tard;
Child; Father; Mother;, Putative Father.
NULLUM ARBITRIUM, pleading. The name of a plea to an action on
an arbitra- tion 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.
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 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 de- scription 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 an- other. 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 ex- traordinary; 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 assump- sit, 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.
NURUS. A daughter-in-law. Dig. 50, 16, 50.