NIECE, domestic relations: The daughter of a person's brother or sister. Amb. 514; 1 Jacob's Ch. R. 207.
NIEF, old Eng. law. A woman born in vassalage. In Latin she was called Nativa.
NIENT COMPRISE. Not included. It is an exception taken to a petition, because the thing desired is not contained in that deed or proceeding wltereoia the petition is founded. Touil. Law Dict.
NIENT CULPABLE. Nof guilty the name of a plea used to deny any charge of ao r@al nature, or of a tort.
NIE'@QT DEDIRE. To say nothing.
2. These words are used to signify that judgment be rendered ag@ a party, because he does not deny the cause of action, i. e. by default.
3. When a fair and impartial trial cannot be had in the county where the venue is laid, the practice in the English courts is, on an affidavit of the eirculustances, to change it in transitory actions; or in local actions they will give leave to enter a suggestion on the roll, with a nient dedire, in order to have the trial in another country. 1 Tidd's Pr. 655, 8th ed.
NIENT LE FAIT, pleading. The same as non est factum, a plea by which the defendant asserts that the deed declared upon is not his deed.
NIGHT. That space of time during which the sun is below the horizon of the earth, except, that short space which precedes its rising and follows its setting, during which, by its light, the countenance of a man may be discerned. I Hale, P. C. 550; 3 Inst. 63; 4 Bl. Com. 224; 1 Hawk. P. C. 101; 3 Chit. Cr- Law, 1093; 2 Leach, 710; Bac. Ab. Burglary, D; 2 East, P. C. 509; 2 Russ. Cr. 32; Rosc. Cr. Ev. 278; 7 Dane's Ab. 134.
NIGHT WALKERS. Persons who sleep by day and walk by niggt 5 E. Ill. c. 14; that is, persons of suspicious appearance and demeanor, who walk by night.
2. Watchmen may undoubtedly arrest them, and it is said that private persons may also do so. 2 Hawk. P. C. 120; but see 3 Taunt. 14,; Ham. N. P. 135. Vide 15 Vin. Ab. 655; Dane's Ab. Index, h. t.
NIHIL CAPIAT PER BREVE, practice. That he take nothing by his writ. This is the judgment against the plaintiff in an action, either in bar or in abatement. When the plaintiff has commenced his proceedings by bill, the judgment is nihil capiat per billam. Co. Litt. 363.
NiHIL DICIT. He says nothing. It is the failing of the defendant to put in a plea or answer to the plaintiff's declaration by the day assigned; and in this case judgment is given against the defendant of course, as he says nothing why it should not. Vide 15 Vin. Ab. 556; Dane's Ab. Index, h. t.
NIHIL HABET. The name of a return made by a sheriff, marshal, or other proper officer, to a scire facia.9 or other writ, when he Ims not been able to, serve it on the defendant. 5 Whart. 367.
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. v.)
NO AWARD. The name of a plea to an action or award. 1 Stew. 520; f Chip. R. 131; 3 Johns. 367. See Nul. Agard.
NO BILL. These words are frequently used by grand juries. They are endorsed on a bill of indictment when the grand jury have not sufficient cause for finding a true bill. They are equivalent to Not found, (q. v.) or Ignoramus. (q. v.) 2 Nott & McC. 558.
NOBILITY. An order of men in several countries to whom privileges are granted at the expense of the rest of the people.
2. The constitution of the United States provides that no state shall " grant any title of nobility; and no person can become a citizen ot' the United States until he has renounced all titles of nobility." The Federalist, No. 84; 2 Story, Laws U. S. 851. 3. There is not in the constitution any general prohibition against any citizen whomsoever, whether in public or private life, accepting any foreign title of nobility. An amendment of the constitution in this respect has been recommended by congress, but it has not been ratified by a sufficient number of states to make it a part of the constitution. Rawle on the Const. 120; Story, Const. 1346.
NOLLE PROSEQUI, practice. An entry made on the record, by which the prosecutor or plaintiff declares that he will proceed no further.
2. A nolle prosequi may be entered either in a criminal or a civil case. In criminal cases, a nolle prosequi may be entered at any time before the finding of the grand jury, by the attorney general, and generally after a true bill has been found; in Pennsylvania, in consequence of a statutory provision, no nolle prosequi can be entered after a bill has been found, without leave of the court, except in cases of assault and battery, fornication and bastardy, on agreement between the parties, or in prosecutions for keeping tippling houses. Act of April 29, 1819, s. 4, 7 Smith's Laws, 227.
3. A nolle prosequi may be entered as to one ot several defendants. 11 East, R. 307.
4. The effect of a nolle prosequi, when obtained, is to put the defendant without day, but it does not operate as an acquittal; 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 assumpsit.
NON ACCEPTAVIT. The name of a plea to an action of assumpsit brought against the drawee of a bill of exchange upon a supposed acceptance by him. See 4 Mann. & Gr. 561; S. C. 43 E. C. L. R. 292.
NON ACCESS. The non existence of sexual intercourse is generally expressed by the words " non access of the husband to the wife which expressions, in a case of bastardy, are understood to mean the same thing. 2 Stark Ev. 218, n.
2. In Pennsylvania, when the husband has access to the wife, no evidence short of absolute impotence of the husband, is sufficient to convict a third person of bastardy with tlie wife. 6 Binn. 283.
3. In the civil law the maxim is, Pater is est quem nupticae demonstrant. Toull. tom. 2, n. 787. The Code Napoleon, art. 312, 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. 15, b.
NON CONFORMISTS English law. A name given to certain dissenters from the rites and ceremonies of the church of England.
NON CONSTAT. It does not appear. These words are frequently used, particularly in argument; as, it was moved in arrest of judgment that the declaration was not good, because non constat whether A B was seventeen years of age when the action was commenced. Sw. pt. 4, SS 22, p. 331.
NON CULPABILLS, pleading. Not guilty. (q. v.) It is usually abbreviated non cul. 16 Vin. Ab. 1.
NON DAMNIFICATUS, pleading. A plea to an action of debt on a bond of indemnity, by which the defendant asserts that the plaintiff has received no damage; in other words that he is not damnified. 1 B. & P. 640, n. a; 1 Taunt. R. 428; 1 Saund. 116, n. 1; 2 Saund. 81; 7 Wentw. PI. 615, 616; 1 H. Bl. 253; 2 Lill. Ab. 224; 14 John R. 177; 5 John. R. 42; 20 John. Rep. 153; 3 Cowen, R. 313; 10 Wheat R. 396, 405; 3 Halst. R. 1.
NON DEDIT, pleading. The general issue in formedom. See Ne dona pas.
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, 310.
NON PROS, or NON PROSEQUITUR. The name of a judgment rendered against a plaintiff for neglecting to prosecute his suit agreeably to law and the rules of the court. Vide Grah. Pr. 763; 3 Chit. Pr. 910; 1 Sell. Pr. 359; 1 Penna. Pr. 84; Caines' Pr. 102; 2 Arch. Pr. 204 and article Judgment of Non Pros.
NON RESIDENCE, eccles. law. The absence of spiritual persons from their benefices.
NON SUBMISSIT. The name of a plea to an action of debt or a bond to perform an award, by which the defendant pleads that he did not submit. Bac. Ab. Arbitr. &c., G.
NON SUM INFORMATUS, pleading. I am not informed. Vide lnformatus non SUM.
NON TENENT INSIMUL, pleadings. A plea to an action in partition, by which the defendant denies that he holds the property, which is the subject of the suit, together with the complainant or plaintiff.
NON TENUIT. He did not hold. The name of a plea in bar in replevin, when the plaintiff has avowed for rent arrear, by which the plaintiff avows that he did not hold in manner and form as the avowry alleges.
NON TENURE, pleading. A plea in a real action, by which the defendant asserted, that he did not hold the land, or at least some part of it, as mentioned in the plaintiff's declaration. 1 Mod. 250.
2. Non tenure is either a plea in bar or a plea in abatement. 14 Mass. 239; but see 11 Mass. 216. It is in bar, when the plea goes to the tenure, as when the tenant denies that he holds of the defendant, and says he holds of some other person, But when the plea goes to the tenancy of the land, as when the defendant pleads that be is not the tenant of the land, it is in abate, ment only. Id.; Bac. Ab. Pleas, &c., I 9.
NON TERM. The vacation between two terms of a court.
NON USER. The neglect to make use of a thing.
2. A right which may be acquired by use, may be lost by non-user, and an absolute discontinuance of the use for twenty years affords presumption of the extinguishment of the right, in favor of some others adverse right. 5 Whart. Rep. 584; 23 Pick. 141.
3. As an enjoyment for twenty years is necessary to found the presumption of a grant of an easement, the general rule is, there must be a similar non-user to raise the presumption of a release. But in this case the owner of the servient premises must have done some act inconsistent with, or adverse to the existence of the right. See 2 Evans's Pothier, 136; 10 Mass. R, 183; 3 Campbl. R. 614; 3 Kent, Com. 359; 1 Chit. Pr. 284, 285, 767 to 759, n. (s); 1 Ves. jr. 6, 8; 2 Supp. to Ves. jr. 442; 2 Anstr. 603; S. C. on appeal, 1 Dowl. R. 316; 4 Ad. & Ell 369; 6 Nev. & M. 230. But the dereliction or abandonment of rights affecting lands is not in all cases held to be evidenced by mere non-user.
4. As an exception to the rule may be mentioned rights to mines and minerals, with the incidental privilege of boring and working them. 16 Ves. 390; 19 Ves. 166.
5. In the civil law there is a similar doctrine: on this subject, Vide Dig. 8, 6, 5; Voet, Com. ad Pand. lib. 8, tit. 6, s. 5 et 7; 3 Toull. n. 673; Merl. Repert. mot Servitude, 30, n. 6, and 33; Civ. Code of Louis. art. 815, 816.
6. Every public officer is required to use his office for the public good; a non-user of a public office is therefore a sufficient cause of forfeiture. 2 Bl. Com. 153; 9 Co. 60. Non user, for a great length of time, will have the effect of repealing an old law. But it must be a very strong case which will have that effect. 13 S. & R. 452; 1 Bouv. Inst. n. 94.
NONSENSE, construction. That which in a written agreement or will is unintelligible.
2. It is a rule of law that an instrument shall be so construed that the whole, if possible, shall stand. When a matter is written grammatically right, but it is unintelligible, and the whole makes nonsense, some words cannot be rejected to make sense of the rest; 1 Salk. 324; but when matter is nonsense by being contrary and repugnant to, some precedent sensible latter, such repugnant matter is rejected. Ib.; 15 Vin. Ab. 560; 14 Vin. Ab. 142. The maxim of the civil law on this subject agrees with this rule: Quae in testamento ita sunt scripta, ut intelligi non possent: perinde sunt, ac si scripta non essent. Dig. 50,17,73,3. Vide articles dmbiguity; Construction; Interpretation.
3. In pleading, when matter is nonsense by being contradictory and repugnant to something precedent, the precedent matter, which is sense, shall not be defeated by the repugnancy which follows, but that which is contradictory shall be rejected; as in ejectment where the declaration is of a demise on the second day of January, and that the defendant postea scilicet, on the first of January, ejected him; here the scilicet may be rejected as being expressly contrary to the postea and the precedent matter. 5 East, 255; 1 Salk. 324.
NON SUIT. The name of a judgment given against a plaintiff, when be is unable to prove his case, or when he refuses or neglects to proceed to the trial of a cause after it has been put at issue, without determining such issue.
2. It is either voluntary or involuntary.
3. A voluntary nonsuit is an abandonment of his cause by a plaintiff, and an agreement that a judgment for costs be entered against him.
4 An involuntary nonsuit takes placs when the 'Plaintiff on being called, when his case is before the court for trial, neglects to appear, or when he has given no evidence upon which a jury could find a verdict. 13 John. R. 334.
5. The courts of the United States; 1 Pet. S. C. R. 469, 476; those of Pennsylvania; 1 S. & R. 360; 2 Binn. R. 234, 248; 4 Binn. R. 84; Massachusetts; 6 Pick. R. 117; Tennessee; 2 Overton, R. 57; 4 Yerg. R. 528; and Virginia; 1 Wash. R. 87, 219 cannot order a nonsuit against a plaintiff who has given evidence of his claim. In Alabama, unless authorized by statute, the court cannot order a nonsuit. Minor, R. 75; 3 Stew. R. 42.
6. In New York; 13 John. R 334; 1 Wend. R. 376; 12 John. R. 299; South Carolina; 2 Bay, R. 126, 445; 2 Bailey, R. 321; 2 McCord, R. 26; and Maine; 2 Greenl. R. 5; 3 Greenl. R. 97; a nonsuit may in general be ordered where the evidence is insufficent to support the action. Vide article Judgment of Nonsuit, and Grah. Pr. 269; 3 Chit. Pr. 910; 1 Sell. Pr. 463; 1 Arch. Pr. 787; Bac. Ab. h. t.; 15 Vin. Ab. 560.
NORTH CAROLINA. The name of one of the original states of the United States of America. The territory which now forms this state was included in the grant made in 1663 by Charles II. to Lord Clarendon and others, of a much more extensive country. The boundaries were enlarged by a new charter granted by the same prince to the same proprietaries, in the year 1665. By this charter the proprietaries were authorized to make laws, with the assent of the freemen of the province or their delegates, and they were invested with various other powers. Being dissatisfied with the form of government, the proprietaries procured the celebrated John Locke to draw a plan of government for the colony, which was adopted and proved to be impracticable; it was highly exceptionable on account of its disregard of the principles of religious toleration and national liberty, which are now universally admitted. After a few years of unsuccessful operation it was abandoned. The colony had been settled at two points, one called the Northern and the other the Southern settlement, which were governed by separate legislatures. In 1729, the proprietaries surrendered their charter, when it became a royal province, and was governed by a commission and a form of government in substance similar to that established in other royal provinces. In 1732, the territory was divided, and the divisions assumed the names of North Carolina and South Carolina.
2. The constitution of, North Carolina was adopted December 18, 1776. To this constitution ammendments were made in convention, June 4, 1835, which were ratified by the people on the 9th day of November of the same year, and took effect on the 1st day of January, 1836.
3. The powers of the government are distributed into three branches, the legislative, the executive, and the judiciary.
4. - 1. The legislative power is vested in a senate and in a house of commons, and both are denominated the general assembly. These will be separately, considered.
5. - 1st. In treating of the senate, it will be proper to take a view of, 1. The qualifications of senators. 2. Of electors of senators. 3. Of the number of senators. 4. Of the time for which they are elected.
6. - 1. The first article, section 3, of the amendments, provides: All freemen of the age of twenty-one years, (except as is hereinafter declared,) who have been inhabitants of any one district within, the state twelve months immediately preceding the day of any election, and possessed of a freehold within the same district of fifty acres of land for six months next before and at the day of election, shall be entitled to vote for a member of the senate; consequently no free negro or free person of mixed blood, descended from negro ancestors to the fourth generation inclusive, can be a senator, as such persons cannot be voters. The 4th article, sec. 2, of the amendments, declares that no person who shall deny the being of God, or the truth of the Christian religion, or the divine authority of tlie Old or New Testament, or who shall hold religious principles incompatible with the freedom or safety of the state, shall be capable of holding any office or place of trust or profit in the civil department within this state. And the fourth section of the article directs that no person who shall hold any office or place of trust or profit under the United States, or any department thereof, or under this state, or any other state or government, shall hold or exercise any other office or place of trust or profit under the authority of this state, or be eligible to a seat in either house of the general assembly: Provided, that nothing herein contained shall extend to officers, in the militia or justices of the peace. The 31st section of the constitution provides that no clergyman, or preacher of the gospel, of any denomination, shall be capable of being a member of either the senate, house of commons, or council of state, while he continues in the exercise of his pastoral function. 2. The first article of the amendments, provides, section 3, 2, that all free men of the age of twenty-one years, (except as hereinafter declared,) who have been inhabitants of any one district within the state twelve months immediately preceding the day of any election, and possessed of a freehold within the same district of fifty acres of land, for six months next before and at the day of election, shall be entitled to vote for a member of the senate. And 3, no negro, free, mulatto, or free person of mixed blood, descended from negro ancestors to the fourth generation inclusive, (though one ancestor of each generation may have been a white person,) shall vote for members of the senate or house of commons. 3. The senate consists of fifty representatives. Amendm. art. 1, s. 1. 4. They are chosen biennially by ballot. Id.
7. - 2d. The house of commons will be considered in the same order which has been observed in speaking of the senate. 1. The sixth section of the constitution requires that each member of the house of commons shall have usually resided in the county in which he is chosen for one year immediately preceding his election, and for six months shall have possessed, and continue to possess, in the county which be represents, not less than one hundred acres of land in fee, or for the term of his own life. The disqualifications of persons for membersbip in the house of commons will be found ante, under the bead senate.
2. The qualifications of voters for members of the house of commons are, by sect. 8 of the constitution, that all freemen of the age of twenty-one years, who have been inhabitants of any one county within the state twelve months immediately preceding the day of any election, and shall have paid public taxes, shall be entitled to vote for members of the house of commons, for the county in which be resides. And by 9, that all persons possessed of a freehold, in any town in this state, having a right of representation, and also all freemen, who have been inhabitants of any such town twelve months next before, and at the day of election, and shall have paid public taxes, shall be entitled to vote for a member to represent such town in the house of commons; Provided, always, that this section shall not entitle any inhabitant of such town to vote for members of the house of commons for the county in which he may reside; nor ally 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.