N:
NAIL, A measure of length, equal to two inches and a quarter.
Vide Measure.
NAKED. This word is used in a metaphorical sense to denote that
a thing is not complete, and for want of some quality it is
either without power, or it possesses a limited power. A naked
contract, is one made without consideration, and, for that
reason, it is void; a naked authority, is one given without any
right in the agent, and wholly for the benefit of the principal.
2 Bouv. Inst. n. 1302. See Nudum Pactum.
NAME. One or more words used to distinguish a particular
individual, as Socrates, Benjamin Franklin.
2. The Greeks, as is well known, bore only one name, and it was
one of the especial rights of a father to choose the names for
hi's children and to alter them if he pleased. It was customary
to give to the eldest son the name of the grandfather on his
father's side. The day on which children received their names was
the tenth after their birth. The tenth day, called 'denate,' was
a festive day, and friends and relatives were invited to take
part in a sacrifice and a repast. If in a court of justice proofs
could be adduced that a father had held the denate, it was
sufficient evidence that be had recognized the child as his own.
Smith's Diet. of Greek and Rom. Antiq. h. v.
3. Among the Romans, the division into races, and the
subdivision of races into families, caused a great multiplicity
of names. They had first the pronomen, which was proper to the
person; then the nomen, belonging to his race; a surname or
cognomen, designating the family; and sometimes an agnomen,
which indicated the branch of that family in which the author has
become distinguished. Thus, for example, Publius Cornelius Scipio
Africanus; Publius is the pronomen; Cornelius, the nomen,
designating the name of the race Cornelia; Scipio, the cognomen,
or surname of the family; and Africanus, the agnomen, which
indicated his exploits.
4. Names are divided into Christian names, as, Benjamin, and
surnames, as, Franklin.
5. No man can have more than one Christian name; 1 Ld. Raym.
562; Bac. Ab. Misnomer, A; though two or more names usually ke*
t separate, as John and Peter, may undoubtedly be compounded, so
as to form, in contemplation of law, but one. 5 T. R. 195. A
letter put between the Christian and surname, as an abbreviation
of a part of the Christian name, as, John B. Peterson, is no part
of either. 4 Watts' R. 329; 5 John. R. 84; 14 Pet. R. 322; 3
Pet. R. 7; 2 Cowen. 463; Co. Litt. 3 a; 1 Ld. Raym. 562; ,
Vin. Ab. Misnomer, C 6, pl. 5 and 6: Com. Dig. Indictment, G 1,
note u; Willes, R. 654; Bac. Abr. Misnomer and Addition; 3
Chit. Pr. 164 to 173; 1 Young, R. 602. But see 7 Watts & Serg.
406.
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5. In general a corporation must contract and sue and be sued
by its corporate name; 8 Jobn. R. 295; 14 John. R. 238; 19
John. R. 300; 4 Rand. R. 359; yet a slight alteration in
stating the name is unimportant, if there be no possibility of
mistaking the identity of the corporation suing. 12 L. R. 444.
6. It sometimes happens that two different sets of partners
carry on business in the same social name, and that one of the
partners is a member of both firms. When there is a confusion in
this respect, the partners of one firm may, in some cases, be
made responsible for the debts of another. Baker v. Charlton,
Peake's N. P. Cas. 80; 3 Mart. N. S. 39; 7 East. 210; 2 Bouv.
Inst. n. 1477.
7. It is said that in devises if the name be mistaken, if it
appear the testator meant a particular corporation, the devise
will be good; a devise to " the inhabitants of the south
parish," may be enjoyed by the inhabitants of the first parish. 3
Pick. R. 232; 6 S. & R. 11; see also Hob. 33; 6 Co. 65; 2
Cowen, R, 778.
8. As to names which have the same sound, see Bac. Ab.
Misnomer, A; 7 Serg & Rawle, 479; Hammond's Analysis of
Pleading, 89; 10 East. R. 83; and article Idem Sonans.
9. As to the effect of using those which have the same
derivation, see 2 Roll. Ab. 135; 1 W. C. C. R. 285; 1 Chit. Cr.
Law 108. For the effect of changing one name, see 1 Rop. Leg.
102; 3 M. & S. 453 Com. Dig. G 1, note x.
10. As to the omission or mistake of the name of a legatee, see
1 Rop. Leg. 132, 147; 1 Supp. to Ves. Jr. 81, 82; 6 Ves. 42; 1
P. Wms. 425; Jacob's R. 464. As to the effect of mistakes in the
names of persons in pleading, see Steph. Pl. 319. Vide,
generally, 13 Vin. Ab. 13; 15 Vin. Ab. 595; Dane's Ab. Index,
h. t.; Roper on Leg. Index, b. t; 8 Com: Dig., 814; 3 Mis. R.
144; 4 McCord, 487; 5 Halst. 230; 3 Mis. R. 227; 1 Pick. 388;
Merl. Rep. mot Nom; and article Misnomer.
11. When a person uses a name in making a contract under seal,
he will not be permitted to say that it is not his name; as, if
he sign and seal a bond " A and B," (being his own and his
partner's name,) and he had no authority from bis partner to make
such a deed, he cannot deny that bis name is A. & B. 1 Raym. 2;
1 Salk. 214. And if a man describes himself in the body of a deed
by the name of James and signs it John, he cannot, on being sued
by the latter name, plead that his name is James. 3 Taunt. 505;
Cro. Eliz. 897, n. a. Vide 3 P. & D. 271; 11 Ad. & L. 594.
NAMES OF SHIPS. The act of congress of December 31, 1792,
concerning the registering and recording of ships or vessels,
provides,
§3. That every ship or vessel, hereafter to be registered,
(except as is hereinafter provided,) shall be registered by the
collector of the district in which shall be comprehended the port
to which such ship or vessel shall belong at the time of her
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registry, which port shall be deemed to be that at or nearest to
which the owner, if there be but one, or, if more than one, the
husband, or acting and managing owner of such ship or vessel,
usually resides. And the name of the said ship or vessel, and of
the port to which she shall so belong, shall be painted on her
stern, on a black ground, in white letters, of not less than
three inches in length. And if any ship or vessel of the United
States shall be found without having her name, and the name of
the port to which she belongs, painted in manner aforesaid, the
owner or owners shall forfeit fifty dollars; one half to the
person, giving the information thereof, the other half to the use
of the United States. 1 Story's L. U. S. 269.
2. And by the act of February 18, 1793, it is directed,
§11. That every licensed ship or vessel shall have her name,
and the port to which she belongs, painted on her stern, in the
manner as is provided for registered ships or vessels; and if
any licensed ship or vessel be found without such painting, the
owner or owners thereof shall pay twenty dollars. 1 Story's L. U.
S. 290.
3. By a resolution of congress, approved, March. 3, 1819, it is
resolved, that all the ships of the navy of the United States,
now building, or hereafter to be built, shall be named by the
secretary of the navy, under the direction of the president of
the United States, according to the following rule, to wit:
Those of the first class, shall be called after the states of
this Union those of the second class, after the rivers and those
of the third class, after the principal cities and towns; taking
care that no two vessels in the navy shall bear the same name. 3
Story's L. U. S. 1757.
4. When a ship is pleaged, as in the contract of bottomry, it
is indispensable that its name should be properly stated; when
it is merely the place in which the pledge is to be found, as in
respondentia, it should also be stated, but a mistake in this
case would not be fatal. 2 Bouv. Inst. n. 1255.
NAMIUM. An old word which signifies the taking or distraining
another person's movable goods; 2 Inst. 140; 3 Bl. Com. 149 a
distress. Dalr. Feud. Pr. 113.
NARR, pleading. An abbreviation of the word narratio; a
declaration in the cause.
NARRATOR. A pleader who draws narrs serviens narrator, a
sergeant at law. Fleta, 1. 2, c. 37. Obsolete.
NARROW SEAS, English law. Those seas which adjoin the coast of
England. Bac. Ab. Prerogative, B 3.
NATALE. The state of condition of a man acquired by birth.
NATIONAL or PUBLIC DOMAIN. All the property which belongs to
the state is comprehended under the name of national or public
domain.
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2. Care must be taken not to confound the public or national
domain, with the national finances, or the public revenue, as
taxes, imposts, contributions, duties, and the like, which are
not considered as property, and are essentially attached to the
sovereignty. Vide Domain; Eminent Domain.
NATIONALITY. The state of a person in relation to the nation in
which he was
born.
2. A man retains his nationality of origin during bis minority,
but, as in the case of his domicil of origin, he may change his
nationality upon attaining full age; he cannot, however,
renounce his allegiance without permission of the government. See
Citizen; Domicil; Expatriation; Naturalization; Foelix, Du
Dr. Intern. prive, n. 26; 8 Cranch, 263; 8 Cranch, 253; Chit.
Law of Nat. 31 2 Gall. 485; 1 Gall. 545.
NATIONS. Nations or states are independent bodies politic;
societies of men united together for the purpose of promoting
their mutual safety and advantage by the joint efforts of their
combined strength.
2. But every combination of men who govern themselves,
independently of all others, will not be considered a nation; a
body of pirates, for example, who govern themselves, are not a
nation. To constitute a nation another ingredient is required.
The body thus formed must respect other nations in general, and
each of their members in particular. Such a society has her
affairs and her interests; she deliberates and takes resolutions
in common; thus becoming a moral person who possesses an
understanding and will peculiar to herself, and is susceptible of
obligations and rights. Vattel, Prelim. §1, 2; 5 Pet. S. C. R.
52.
3. It belongs to the government to declare whether they will
consider a colony which has thrown off the yoke of the mother
country as an independent state; and until the government have
decided on the question, courts of justice are bound to consider
the ancient state of things as remaining unchanged. 1 Johns. Ch.
R. 543; 13 John. 141, 561; see 5 Pet. S. C. R. 1; 1 Kent, Com
21; and Body Politic; State.
NATIVES. All persons born within the jurisdiction of the United
States, are considered as natives.
2. Natives will be classed into those born before the
declaration of our independence, and those born since.
3. - 1. All persons, without regard to the place of their
birth, who were born before the declaration of independence, who
were in the country at the time it was made, and who yielded a
deliberate assent to it, either express or implied, as by
remaining in the country, are considered as natives. Those
persons who were born within the colonies, and before the
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declaration of independence, removed into another part of the
British dominions, and did not return prior to the peace, would
not probably be considered natives, but aliens.
4. - 2. Persons born within the United States, since the
Revolution, may be classed into those who are citizens, and those
who are not.
5. - 1st. Natives who are citizens are the children of
citizens, and of aliens who at the time of their birth were
residing within the United States.
6 The act to establish an uniform rule of naturalization,
approved April 14, 1802, §4, provides that the children of
persons who now are, or have been citizens of the United States,
shall, though born out of the limits and jurisdiction of the
United States, be considered as citizens of the United States"
But, the right of citizenship shall not descend to persons whose
fathers have never resided in the United States.
7. - 2d. Natives who are not citizens are, first, the children
of ambassadors, or other foreign ministers, who, although born
here, are subjects or citizens of the government of their
respective fathers. Secondly, Indians, in general, are not
citizens. Thirdly, negroes, or descendants of the African race,
in general, have no power to vote, and are not eligible to
office.
8. Native male citizens, who have not lost their political
rights, after attaining the age required by law, may vote for all
kinds of officers, and be elected to any office for which they
are legally qualified.
9. The constitution of the United States declares that no
person, except a natural born citizen, or a citizen of the United
States at the time of the adoption of this constitution, shall be
eligible to the office of president or vice-president of the
United States. Vide, generally, 2 Cranch, 280; 4 Cranch, 209; 1
Dal. 53; 20 John. 213; 2 Mass. 236, 244, note; 2 Pick. 394,
n.; 2 Kent, 35.
NATURAL AFFECTION. The affection which a husband, a father, a
brother, or other near relative, naturally feels towards those
who are so nearly allied to him, sometimes supplies the place of
a valuable consideration in contracts; and natural affection is
a good consideration in a deed For example, if a father should
covenant without any other consideration to stand seised to the
use of his child, the naming him to be of kin implies the
consideration of natural affection, whereupon such use will
arise. Carth. 138 Dane's Ab. Index, h. t.
NATURAL CHILDREN. In the phraseology of the English or American
law, natural children are children born out of wedlock, or
bastards, and are distinguished from legitimate children; but in
the language of the civil law, natural are distinguished from
adoptive children, that is, they are the children of the parents
spoken of, by natural procreation. See Inst. lib. 3, tit. 1, §2.
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2. In Louisiana, illegitimate children who have been
acknowledged by their father, are called natural children; and
those whose fathers are unknown are contradistinguished by the
appellation of bastards. Civ. Code of Lo. art. 220. The
acknowledgment of an illegitimate child shall be made by a
declaration executed before a notary public, in the presenee of
two witnesses, whenever it shall not have been made in the
registering of the birth or baptism of such child. Id. art. 221.
Such acknowledgment shall not be made in favor of the children
produced by an incestuous or adulterous connexion. Id. art. 222.
3. Fathers and mothers owe alimony to their natural children,
when they are in need. Id. art. 256, 913. In some cases natural
children are entitled to the legal succession, of their natural
fathers or mothers. Id. art. 911 to 927.
4. Natural children owe alimony to their father or mother, if
they are in need, and if they themselves have the means of
providing it. Id. art. 256.
5. The father is of right the tutor of his natural children
acknowledged by him; the mother is of right the tutrix of her
natural child not acknowledged by the father. The natural child,
acknowledged by both, has for tutor, first the father; in
default of him, the mother. Id. art. 274. See 1 Bouv. Inst. n.
319, et seq.
NATURAL EQUITY. That which is founded in natural justice, in
honesty and right, and which arises ex aequo et bono. It
corresponds precisely with the definition of justice or natural
law, which is a constant and perpetual. will to give to every man
what is his. This kind of equity embraces so wide a range, that
human tribunals have never attempted to enforce it. Every code of
laws has left many matters of natural justice or equity wholly
unprovided for, from the difficulty of framing general rules to
meet them, from the almost impossibility of enforcing them, and
from the doubtful nature of the policy of attempting to give a
legal sanction to duties of imperfect obligation, such as
charity, gratitude, or kindness. 4 Bouv. Inst. n. 3720.
NATURAL OBLIGATION, Civil law. One which in honor and
conscience binds the person who has contracted it, but which
cannot be enforeed in a court of justice. Poth. n. 173, and n.
191. See Obligation.
NATURAL PRESUMPTIONS, evidence. Presumptions of fact; those
which depend upon their own form and efficacy in generating
belief or conviction in the mind, as derived from those
connexions which are pointed out by experience; they are
independent of any artificial connexions, and differ from mere
presumptions of law in this essential respect, that the latter
depend on and are a branch of th& particular system of
jurisprudence to which they belong; but mere natural
presumptions are derived wholly by means of the common experience
of mankind, without the aid or control of any particular rule of
law, but simply from the course of nature and the habits of
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society. These presumptions fall within the exclusive province of
the jury, who are to pass upon the facts. 3 Bouv. Inst. n. 3064;
Greenleaf on Ev. §44.
NATURAL DAY. That space of time included between the rising and
the setting of the sun. See Day.
NATURAL FOOL. An idiot; one born without the reasoning powers,
or a capacity to acquire them.
NATURAL FRUITS. The natural production of trees, bushes, and
other plants, for the use of men and animals, and for the
reproduction of such trees, bushes or plants.
2. This expression is used in contradistinction to artificial
or figurative fruits; for example, apples, peaches and pears are
natural fruits; interest is the fruit of money, and this is
artificial.
NATURALIZATION. The act by which an alien is made a citizen of
the United States of America.
2. The Constitution of the United States, art. 1, s. 8, vests
in congress the power " to establish an uniform rule of
naturalization." In pursuance of this authority congress have
passed several laws on this subject, which, as they are of
general interest, are here transcribed as far as they are in
force.
3. - 1. An act to establish an uniform rule of naturalization,
and to repeal the acts heretofore passed on that subject.
Approved Aprill 14, 1802. 7 Hill, 137.
§1. Be it enacted, &c, That any alien, being a free white
person, may be admitted to become a citizen of the United States,
or any of them, on the following conditions, and not otherwise:
First, That be shall have declared, on oath or affirmation,
before the supreme, superior, district, or circuit court, of some
one of the states, or of the territorial districts of the United
States, or a circuit or district court of the United States,
three years at least before his admission, that it was, bona
fide, his intention to become a citizen of the United States, and
to renounce forever all allegiance and fidelity to any foreign
prince, potentate, state, or sovereignty, whatever, and
particularly, by name, the prince, potentate, state or
sovereignty, whereof such alien may, at the time, be a citizen or
subject. Secondly, That he shall, at the time of bis application
to be admitted, declare, on oath or affirmation, before some one
of the courts aforesaid, that he will support the constitution of
the United States, and that he doth absolutely and entirely
renounce and abjure all allegiance and fidelity to every foreign
prince, potentate, state, or sovereignty, whatever, and
particularly, by name, the prince, potentate, state, or
sovereignty, whereof he was before a citizen or subject; which
proceedings shall be recorded by the clerk of the court. Thirdly,
That the court admitting such alien shall be satisfied that he
has resided within the United States five years, at least, and
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within the state or territory where such court is at the time
held, one year at least; and it shall further appear to their
satisfaction, that, during that time, he has behaved as a man of
good moral character, attached to the principles of the
constitution of the United States, and well disposed to the good
order and happiness of the same:
4. Provided, That the oath of the applicant shall, in no case,
be allowed to prove his residence. Fourthly, That in case the
alien, applying to be admitted to citizenship, shall have borne
any hereditary title, or been of any of the orders of nobility,
in the kingdom or state from which he came, he shall in addition
to the above requisites, make a express renunciation of his title
or order of nobility, in the court to which his application shall
be made, which renunciation shall be recorded in the said court:
5. Provided, That no alien, who shall heretofore passed on that
subject. Approved April 14, 1802. 7 Hill, 137. §1. Be it enacted,
&c. That any alien, being a free white person, may be admitted to
become a citizen of the United States, or any of them, on the
following conditions, and not otherwise: First, That he shall
have declared, on oath or affirmation, before the supreme,
superior, district, or circuit court, of some one of the states,
or of the territorial districts of the United States, or a
circuit or district court of the United States, three years at
least before his admission, that it was, bona fide, his intention
to become a citizen of the United States, and to renounce forever
all allegiance and fidelity to any foreign prince, potentate,
state, or sovereignty, whatever, and particularly, by name, the
prince, potentate, state or sovereignty, whereof such alien may,
at the time, be a citizen or subject. Secondly, That be shall, at
the time of bis application to be admitted, declare, on oath or
affirmation, before some one of the courts aforesaid, that he
will support the constitution of the United States, and that he
doth absolutely and entirely renounce and abjure all allegiance
and fidelity to every foreign prince, potentate, state, or
sovereignty, whatever, and particularly, by name, the prince,
potentate, state, or sovereignty, whereof he was before a citizen
or subject; which proceedings shall be recorded by the clerk of
the court. Thirdly, That the court admitting such alien shall be
satisfied that he has resided within the United States five
years, at least, and within the state or territory where such
court is at the time held, one year at least; and it shall
further appear to their satisfaction, that, during that time, he
has behaved as a man of good moral character, attached to the
principles of the constitution of the United States, and well
disposed to the good order and happiness of the same:
4. Provided, That the oath of the applicant shall, in no case,
be allowed to prove his residence. Fourthly, That in case the
alien, applying to be admitted to citizenship, shall have borne
any hereditary title, or been of any of the orders of nobility,
in the kingdom or state from which he came, he shall, in addition
to the above requisites, make an express renunciation of his
title or order of nobility, in the court to wbich his application
shall be made, which renunciation shall be recorded in the said
court:
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5. Provided, That no alien, who shall be a native citizen,
denizen, or subject, of any country, state, or sovereign, with
whom the United States shall be at war, at the time of his
application, shall be then admitted to be a citizen of the United
States:
6. Provided, also, That any alien who was residing within the
limits, and under the jurisdiction, of the United States, before
the twenty-ninth day of January, one thousand seven hundred and
ninety-five, may be admitted to become a citizen, on due proof
made to some one of the courts aforesaid, that he has resided two
years, at least, within and under the jurisdiction of the United
States, and one year, at least, immediately preceding his
application within the state or territory where such court is at
the time held; and on bis declaring on oath, or affirmation,
that he will support the constitution of the United States, and
that be doth absolutely and entirely renounce and abjure all
allegiance and fidelity to any foreign prince, potentate, state,
or sovereignty, whatever, and particularly, by name, the prince,
potentate, state, or sovereignty, whereof he was before a citizen
or subject; and, moreover, on its appearing to the satisfaction
of the court, that, during the said term of two years, he has
behaved as a man of good moral cbaracter, attached to the
constitution of the United States, and well disposed to the good
order and happiness of the same; and where the alien, applying,
for admission to citizenship, shall have borne any hereditary
title, or been of any of the orders of nobility in the kingdom or
state from which be came, on his moreover making in the court an
express renunciation of his title or order of nobility, before he
shall be entitled to such admission: all of which proceedings,
required in this proviso to be performed in the court, shall be
recorded by the clerk thereof:
7. And provided, also, That any alien who was residing within
the limits, and under the jurisdiction, of the United States, at
any time between the said twenty-ninth day of January, one
thousand seven hundred and ninety-five, and the eighteenth day of
June, one thousand seven hundred and ninety-eight, may, within
two years after the passing of this act, be admitted to become a
citizen, without a compliance with the first condition above
specified.
8. - §3. And whereas, doubts have arisen whether certain courts
of record, in some of the states, are included within the
description of district or circuit courts: Be it further
enacted, That every court of record in any individual state,
having common law jurisdiction, and a seal, and clerk or
prothonotary, shall be considered as a district court within the
meaning of this act; and every alien, who may have been
naturalized in any such court, shall enjoy, from and after the
passing of the act, the same rights and privileges, as if he had
been naturalized in a district or circuit court of the United
States.
9. - §4. That the children of persons duly naturalized under
any of the laws of the United States, or who, previous to the
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passing of any law on that subject by the government of the
United States, may have become citizens of any one of the said
states, under the laws thereof, being under the age of twenty-one
years, at the time of their parents' being so naturalized or
admitted to the rights of citizenship, shall, if dwelling in the
United States, be considered as citizens of the United States;
and the children of persons who now are, or have been, citizens
of the United States, shall, though born out of the limits and
jurisdiction of the United States, be considered as citizens of
the United States:
10. Provided, That the right of citizenship shall not descend
to persons whose fathers have never resided within the United
States:
11. Provided also, That no person heretofore proscribed by any
state, or who has been legally convicted of having joined the
army of Great Britain during the late war, shall be admitted a
citizen, as aforesaid, without the consent of the legislature of
the state in which such person was proscribed.
12. - §5. That all acts heretofore passed respecting
naturalization, be, and the same are hereby repealed.
13. - 2. An act in addition to an act, entitled " An act to
establish an uniform rule of naturalization; and to repeal the
acts heretofore passed 'on that subject." Approved March 26,
1804.
14. - §1. 'Be it enacted, &c. That any alien, being a free
white person, who was residing within the limits, and under the
jurisdiction of the United States, at any time between the
eighteenth day of June, one thousand seven hundred and
ninety-eight, and the fourteenth day of April, one thousand eight
hundred and two, and who has continued to reside within the same,
may be admitted to become a citizen of the United States, without
a compliance with the first condition specified in the first
section of the act, entitled " An act to establish an uniform
rule of naturalization, and to repeal tile acts heretotore passed
on that subject."
15. - §2. That when any alien who shall have complied with the
first condition specified in the first section of the said
orginal act, and who shall have pursued the directions prescribed
in the second section of the said - act, may die, before he is
actually naturalized, the widow and the children of such alien
shall be considered as citizens of the United States; and shall
be entitled to all the rights and privileges as such, upon taking
the oaths prescribed by law.
16. - 3. An act for the regulation of seamen on board the
public and private vessels of the United States.
17. - §12. That no person who shall arrive in the United
States, from and after the time when this act shall take effect,
shall be admitted to become a citizen of the United States, who
shall not, for the continued term of five years, next precediug
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his admission as aforesaid, have resided within the United
States, without being, at any time during the said five years,
out of the territory of the United States. App. March 3, 1813.
18. - 4. An act supplementary to the acts heretofore passed on
tlie subject of an uniform rule of naturalization. App. July 30,
1813.
19. - §1. Be it enacted, &c. That persons resident within the
United States, or the territories thereof, on the eighteenth day
of June, in the year one thousand eight hundred and twelve, who
had, before that day, made a declaration, according to law, of
their intentions to become citizens of the United States, or who,
by the existing laws of the United States, were, on that day,
entitled to becoine citizens without making such declaration, may
be admitted to become citizens thereof" notwithstanding they
shall be alien enemies, at the time and in the manner prescribed
by the laws heretofore passed on the subject: Provided, That
nothing herein contained shall be taken or construed to interfere
with, or prevent the apprehension and removal, agreeably to law,
of any alien enemy at any time previous to the naturalization of
such alien.
20. - 5. An act relative to evidence in case of naturalization.
App. March 22, 1816.
21. - §2. That nothing herein contained shall be construed to
exclude from admission to citizenship, any free white person who
was residing within the limits and under the jurisdiction of the
United States at any time between the eighteenth day of June, one
thousand seven hundred and ninety-eight, and the fourteenth day
of April, one thousand eight hundred and two, and who, having
continued to reside therein, without having made any declaration
of intention before a court of record as aforesaid, may be
entitled to become a citizen of the United States according to
the act of the twenty-sixth of March, one thousand eight hundred
and four, entitled "An act in addition to an act, entitled 'An
act to establish an uniform rule of naturalization, and to repeal
the acts heretofore passed on that subject.' "Whenever any
person, without a certificate of such declaration of intention,
as aforesaid, shall make application to be admitted a citizen of
the United States, it shall be proved, to the satisfaction of the
court, that the applicant was residing within the limits and
under the jurisdiction of tlie United States before the
fourteenth day of April one thousand eight hundred and two, and
has continued to reside within tlie same, or be shall not be so
admitted. And the residence of the applicant within the limits
and under the jurisdiction of the United States, for at least
five years immediately preceding the time of such application,
shall be proved by the oath or affirmation of citizens of the
United States; which citizens shall be named in the record as
witnesses. And such continued residence within the limits and
under the jurisdiction of the United States, when satisfactorily
proved, and the place or places where the applicant has resided
for at least five years, as aforesaid, shall be stated and set
forth, together with the names of such citizens, in the record of
the court admitting the applicant; otherwise the same shall not
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entitle him to be considered and deemed a citizen of the United
States.
22. - 6. An act in further addition to "An act to establish an
uniform rule of naturalization, and to repeal the acts heretofore
passed on that subject." App. Ma 26, 1824.
23. - §1. Be it enacted, &c. That an alien, being a free white
person and a minor under the age of twenty-one years, who shall
have resided in the United States three years next preceding his
arriving at the age of twenty-one years, and who shall have
continued to reside therein to the time be way make application
to be admitted a citizen thereof, may, after he arrives at the
age of twenty-one years, and after be shall have resided five
years within the United States, including the three years of his
minority, be admitted a citizen of the United States, without
having made the declaration required in the first condition of
the first section of the act to which this is an addition, three
years previous to his admission.
24. Provided, such alien shall make the declaration required
therein at the time of his or her admission; and shall further
declare, on oath, and prove to the satisfaction of the court,
that, for three years next preceding, it has been the bona fide
intention of such alien to become a citizen of the United States;
and shall, in all other respects, comply with the laws in regard
to naturalization.
25. - §2. That no certificates of citizenship, or
naturalization, heretofore obtained from any court of record
within the United States, shall be deemed invalid, in consequence
of an omission to comply with the requisition of the first
section of the act, entitled " An Act relative to evidence in
cases of naturalization," passed the twenty-second day of March,
one thousand eight hundred and sixteen.
26. - §8. That the declaration required by the first condition
specified in the first section of the act, to which this is an
addition, shall, if the same shall be bona fide, made before the
clerks of either of the courts in the said condition named, be as
valid as if it had been made before the said courts,
respectively.
27. - §4. That a declaration by any alien, being a free white
person, of his intended application to be admitted a citizen of
the United States, made in the manner and form prescribed in the
first condition specified in the first section of the act to
which this is an addition, two years before his admission, shall
be a sufficient compliance with said condition; anything in the
said act, or in any subsequent act, to the contrary
notwithstanding.
28. - 7. An mot to amend the acts concerning naturalization.
App. May 24, 1828.
29. - §1. Be it enacted, &c. That the second section of the
act, entitled "An act to establish an uniform rule of
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naturalization, and to repeal the acts heretofore passed on that
subject," which was passed on the fourteenth day of April, one
thousand eight hundred and two, and the first section of the act,
entitled " An act relative to evidence in cases of
naturalization," passed on the twenty-second day of March, one
thousand eight hundred and sixteen, be, and the same are hereby
repealed.
30. - §2. That any alien, being a free white person, who has
resided within the Iimits and under the jurisdiction of the
United States, between the fourteenth day of April, one thousand
eight hundred and two, and the eighteenth day of June, one
thousand eight hundred and twelve, and who has continued to
reside within tbe same, may be admitted to become a citizen of
the United States, without having made any previous declaration
of his intention to become a citizen:
31. Provided, That whenever any person without a certificate of
such declaration of intention, shall make application to be
admitted a citizen of the United States, it shall be proved to
the satisfaction of the court, that the applicant was residing
within the limits, and under the jurisdiction of the United
States, before the eighteenth day of June, one thousand eight
hundred and twelve, and has continued to reside within the same,
or he shall not be so admitted; and the residence of the
applicant within the limits and under the jurisdiction of the
United States, for at least five years immediately preceding the
time of such application, shall be proved by the oath or
affirmation of citizens of the United States, which citizens
shall be named in the record as witnesses; and such continued
residence within the limits and under the jurisdiction of the
United States when satisfactorily proved, and the place or places
where the applicant has resided for at least five years as
aforesaid, shall be stated and set forth, together with the names
of such citizens, in the record of the court admitting the
applicant; otherwise the same shall not entitle him to be
considered and deemed a citizen of the United States.
NATURALIZED CITIZEN. One who, being born an alien, has lawfully
become a citizen of the United States Under the constitution and
laws.
2. He has all the rights of a natural born citizen, except that
of being eligible as president or vice-president of the United
States. In foreign countries he has a right to be treated as
such, and will be so considered even in tlie country of his
birth, at least for most purposes. 1 Bos. & P. 430. See Citizen;
Domicil; Inhabitant.
NAUFRAGE, French mar. law. When, by the violent agitation of
the waves, the impetuosity of the winds, the storm, or the
lightning, a vessel is swallowed up, or so shattered that there
remain only the pieces, the accident is called naufrage.
2. It differs from echouement, which is, when the vessel,
remains whole, but is grounded; or from bris, which is, when it
strikes against a rock or a coast; or from sombrer, which is,
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the sinking of the vessel in the sea, when it is swallowed up,
and which may be caused by any accident whatever. Pardes. n. 643,
Vide Wreck.
NAUTAE. Strictly speaking, only carriers by water are
comprehended under this word. But the rules which regulate such
carriers have been applied to carriers by land. 2 Ld. Raym. 917;
1 Bell's Com. 467.
NAVAL OFFICER. The name of an officer of the United States,
whose duties are prescribed by various acts of congress.
2. Naval officers are appointed for the term of four years, but
are removable from office at pleasure. Act of May 15, 1820, §1, 3
Story, L. U . S. 1790.
3. The act of March 2, 1799, §21, 1 Story, L. U. S. 590,
prescribes that the naval officer shall receive copies of all
manifests, and entries, and shall, together with the collector,
estimate the duties on all goods, wares, and merchandise, subject
to duty, (and no duties shall be received without such estimate,)
and shall keep a separate record thereof, and shall countersign
all permits, clearances, certificates, debentures, and other
documents, to be granted by the collector; he shall also examine
the collector's abstracts of duties, and other accounts of
receipts, bonds, and expenditures, and, if found right, he shall
certify the same.
4. And by §68, of the same law, it is enacted, that every
collector, naval officer, and surveyor, or other person specially
appointed, by either of them, for that purpose, shall have full
power and authority to enter any ship or vessel, in which they
shall have reason to suspect any goods, wares, or merchandise,
subject to duty, are concealed, and therein to search for, seize,
and secure, any such goods, wares, or merchandise and if they
shall have cause to suspect a concealment thereof in any
particular dwelling house, store, building, or other place, they
or either of them shall, upon proper application, on oath, to any
justice of the peace, be entitled to a warrant to enter such
house, store, or other place (in the day time only,) and there to
search for such goods; and if any shall be found, to seize and
secure the same for trial; and all such goods, wares and
merchandise, on which the duties shall not have been paid, or
secured to be paid, shall be forfeited.
NAVICULARIS, civil law. He who had the management and care of a
ship. The same as our sea captain. Bouch. Inst. n. 359. Vide
Captain.
NAVIGABLE. Capable of being navigated.
2. In law, the term navigable is applied to the sea, to arms of
the sea, and to rivers in which the tide flows and reflows. 5
Taunt. R. 705; S. C. Eng. Com. Law Rep. 240; 5 Pick. R. 199;
Ang. Tide Wat. 62; 1 Bouv. Inst. n. 428.
3. In North Carolina; 1 M'Cord, R. 580; 2 Dev. R. 30; 3 Dev.
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R. 59; and in Pennsylvania; 2 Binn. R. 75; 14 S. & R. 71; the
navigability of a river does not depend upon the ebb and flow of
the tide, but a stream navigable by sea vessels is a navigable
river.
4. By the common law, such rivers as are navigable in the
popular sense of the word, whether the tide ebb and flow in them
or not, are public highways. Ang. Tide Wat. 62; Ang. Wat.
Courses, 205 1 Pick. 180; 5 Pick. 199; 1 Halst. 1; 4 Call,
441: 3 Blackf. 136. Vide Arm of the sea; Reliction; River.
NAVIGATION. The act of traversing the sea, rivers or lakes, in
ships or other vessels; the art of ascertaining the geographical
position of a ship, and directing her course.
2. It is not within the plan of this work to copy the acts of
congress relating to navigation, or even an abstract of them. The
reader is referred to Story's L. U. S. Index, h. t.; Gordon's
Dic. art. 2905, et seq.
NAVY. The whole shippings taken collectively, belonging to the
government of an independent nation; the ships belonging to
private individuals are not included in the navy.
2. The constitution of the United States, art. 1, s. 8, vests
in congress the power to provide and maintain a navy."
3. Anterior to the war of 1812, the navy of the United States
bad been much neglected, and it was not until during the late
war, when it fought itself into notice, that the public attention
was seriously attracted to it. Some legislation favorable to it,
then took place.
4. The act of January 2, 1813, 2 Story's L. U. S. 1282,
authorized the president of the United States, as soon as
suitable materials could be procured therefor, to cause to be
built, equipped and employed, four ships to rate not less than
seventy-four guns, and six ships to rate forty-four guns each.
The sum of two millions five hundred thousand dollars is
appropriated for the purpose.
5. And by the act of March 3, 1813, 2 Story, L. U. S. 1313, the
president is further authorized to have built six sloops of war,
and to have built or procured such a number of sloops of war or
other armed vessels, as the public service may require on the
lakes. The sum of nine hundred thousand dollars is appropriated
for this purpose, and to pay two hundred thousand dollars for
vessels already procured on the lakes.
6. The act of March 3, 1815, 2 Story, L. U. S. 1511,
appropriates the sum of two hundred thousand dollars annually for
three years, towards the purchase of a stock of materials for
ship building.
7. The act of April 29, 1816, may be said to have been the
first that manifested the fostering care of congress. By, this
act the sum of one million of dollars per annum for eight years,
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including the sum of two hundred thousand dollars per annum
appropriated by the act of March 3, 1815, is appropriated. And
the president is authorized to cause to be built nine ships, to
rate not less than seventy-four guns each, and twelve ships to
rate not less than forty-four guns each, including one
seventy-four and three forty-four gun ships, authorized to be
built by the act of January 2d, 1813. The third section of this
act authorizes the president to procure steam engines and all the
imperishable materials for building three steam batteries.
8. The act of March 3, 1821, 3 Story's L. U. S. 1820, repeals
the first section of the act of the 29th April, 1816, and instead
of the appropriation therein contained, appropriates the sum of
five bundred thousand dollars per annum for six years, from the
year 1821 inclusive, to be applied to carry into effect the
purposes of the said act.
9. To repress piracy in the gulf of Mexico, the Act of 22d
December, 1822, was passed, 3 St. L. U. S. 1873. It authorizes
the president to purchase or construct a sufficient number of
vessels to repress piracy in that gulf and the adjoining seas and
territories. It appropriates one hundred and sixty thousand
dollars for the purpose.
10. The act of May 17, 1826, authorizes the suspension of the
building of one of tlie ships above authorized to be built, and
authorizes the president to purchase a ship of not less than the
smallest class authorized to be built by the act of 29th April,
1816.
11. The act of March 3 , 1827, 3 St. L. U. S. 2070,
appropriates five hundred thousand dollars per annum for six
years for the gradual improvement of the navy of the United
States, and authorizes the president to procure materials for
ship building. A further appropriation is made by the act of
March 2, 1833, 4 Sharsw. con. of St. L. U. S. 2346, of five
hundred thousand dollars annually for six years from and after,
the third of March, 1833, for the gradual improvement of the navy
of the United States; and the president is authorized to cause
the above mentioned appropriatiou to be applied as directed by
the act of March 3, 1827.
12. For the rules and regulations of the navy of the United
States, the reader is referred to the act " for the better
government of the navy of the United States." 1 St. L. U. S. 761.
Vide article Names of Ships.
NE DISTURBA PAS, pleading. The general issue in quare impedit.
Hob. 162 Vide Rast, 517; Winch. Ent. 703.
NE BAILA PAS. He did not deliver. This is a plea in detinue, by
which the defendant denies the delivery to him of the thing sued
for.
NE DONA PAS, or NON DEDIT, pleading. The general issue in
formedon; and is in the following formula: "And the said C D,
by J K, his attorney, comes and defends the right, when, &c., and
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says, that the said E F did not give the said manor, with the
appurtenances, or ally part thereof, to the said G B, and the
heirs of his body issuing, in manner and form as the said A B
hath in his count above alleged.' And of this the said C D puts
himself upon the country." 10 Went. 182.
NE EXEAT REPUBLICA, practice. The name of a writ issued by a
court of chancery, directed to the sheriff, reciting that the
defendant in the case is indebted to the a complainant, and, that
he designs going quickly into parts without the state, to the
damage of the complainant, and then commanding him to cause the
defendant to give bail in a certain sum that he will not leave
the state without leave of the court, and for want of such bail
that he tlie sheriff, do commit the defendant to prison.
2. This writ is used to prevent debtors from escaping from
their creditors. It amounts in ordinary civil cases, to nothing
more than process to hold to bail, or to compel a party to give
security to abide the decree to be made in his case. 2 Kent, Com.
32 1 Clarke, R. 551,; Beames' Ne Excat; 13 Vin. Ab. 537; 1
Supp to Ves. jr. 33, 352, 467; 4 Ves. 577 5 Ves. 91; Bac. Ab.
Prerogative, C; 8 Com. Dig. 232; 1 Bl. Com. 138 Blake's Ch. Pr.
Index, h. t.; Madd. Ch. Pr. lndex, h. t.; 1 Smith's Ch. Pr.
576; Story's Eq. Index, h. t.
3. The subject may be considered under the following heads.
4. - 1. Against whom a writ of ne exect may be issued. It may
be issued against foreigners subject to the jurisdiction of the
court, citizens of the same state, or of another state, when it
appears by a positive affidavit that the defendant is about to
leave the state, or has threatened to do so, and that the debt
would be lost or endangered by bis departure. 3 Johns. Ch. R. 75,
412; 7 Johns. Ch. R. 192; 1 Hopk. Ch. R. 499. On the same
principle which has been adopted in the courts of law that a
defendant could not be held to bail twice for the same cause of
action, it has been decided that a writ of ne exeat was not
properly issued against a defendant who had been held to bail in
an action at law. 8 Ves. jr. 594.
5. - 2. For what claims. This writ can be issued only. for
equitable demands. 4 Desaus. R. 108; 1 Johns. Ch. R. 2; 6
Johns. Ch. R. 138; 1 Hopk. Ch. R. 499. It may be allowed in a
case to prevent the failure of justice. 2 Johns. Chanc. Rep. 191.
When tlie demand is strictly legal, it cannot be issued, because
the court has no jurisdiction. When the court has concurrent
jurisdiction with the courts of common law, the writ may, in such
case, issue, unless the party has been already arrested at law. 2
Johns. Ch. R. 170. In all cases, when a writ of Be exeat is
claimed, the plaintiff's equity must appear on the face of the
bill. 3 Johns. Ch. R. 414.
6.-3. The amount of bail. The amount of bail is assessed by the
court itself and a sum is usually directed sufficient to cover
the existing debt, and a reasonable amount of future interest,
having regard to the probable duration of the suit. 1 Hopk. Ch.
R. 501.
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NE LUMINIBUS OFFICIATOR, civil law. The name of a servitude
which restrains the owner of a house from making such erections
as obstruct the light of the adjoining house. Dig. 8, 4, 15, 17.
NE RECIPIATUR. That it be not received. A caveat or words of
caution given to a law officer, by a party in a cause, not to
receive the next proceedings of his opponent. 1 Sell. Br. 7.
NE RELESSA PAS. The name of a replication to a plea, of
release, by which tlie plaintiff insists he did not release. 2
Buls. 55.
NE UNJUSTE VEXES, old Engl. law. The name of a writ which
issued to relieve a tenant upon, whom his lord had distrained for
more services than he was bound to perform.
2. It was a prohibition to the lord, not unjustly to distrain
or vex his tenant. F. N. B. h. t.
NE UNQUES ACCOUPLE, pleading. A plea by which the party denies
that he ever was lawfully married to the person to whom it
refers. See the form, 2 Wils. R. 118; Morg. 582; 10 Went. Prec.
Pl. 158; 211 Bl. 145; 3 Chit. PI. 599.
NE UNQUES EXECUTOR, pleading. A plea by which the party who
uses it denies that the plaintiff is an executor, as he claims to
be; or that the defendant is executor, as the plaintiff in his
declaration charges him to be. 1 Chit. Pl. 484; 1 Saund. 274, n.
3; Coin. Dig. Pleader, 2 D, 2 2 Chit. PI. 498.
NE UNQUES SEISIE QUIZ DOWER, pleading. A plea by which a
defendant denies the right of a widow who sues for, and demands
her dower in lands, &c., late of her husband, because the husband
was not, on the day of her marriage with him, or any time
afterwards, seised of such estate, so that she could be endowed
-of the game. See 2 Saund. 329; 10 Went. 159; 3 Chitt. Pl. 598,
and the authorities there cited.
NE UNQUES SON RECEIVER, pleading. The name of a plea in an
action of account render, by which the defendant affirms that he
never was receiver of tlie plaintiff. 12 Vin. Ab. 183.
NE VARIETUR. These words, which literally signify that it be
not varied or changed, are sometimes written by notaries public
upon bills or notes, for the purpose of identifying them. This
does not destroy their negotiability. 8 Wheat. 338.
NEAT or NET, contracts. The exact weight of an article, without
the bag, box, keg, or other thing in which it may be enveloped.
NEATNESS, pleading. The statement, in apt and appropriate
words, of all the necessary facts, and ne more. Lawes on Pl. 62.
NECESSARIES. Such things as are proper and requisite for tlie
sustenance of man.
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2. The term necessaries is not confined merely to what is
requisite barely to support life, but includes many of the
conveniences of refined society. It is a relative term, which
must be applied to the circumstances and conditions of the
parties. 7 S. & R. 247. Ornaments and superfluities of dress,
such as are usually worn by the party's rank and situation in
life, have been classed among necessaries. 1 Campb. R. 120; 7 C.
& P. 52; 1 Hodges, R. 31; 8 T. R. 578; 3 Campb. 326; 1
Leigh's N. P. 135.
3. Persons incapable of making contracts generally, may,
nevertheless, make legal engagements for necessaries for which
they, or those bound to support them, will be held responsible.
The classes of persons who, although not bound by their usual
contracts, can bind themselves or others for necessaries, are
infants and married women.
4. - 1. Infants are allowed to make binding contracts whenever
it is for their interest; when, therefore, they are unprovided
with necessaries, which, Lord Coke says, include victuals,
clothing, medical aid, and "good teaching and instruction,
whereby he may profit himself afterwards," they may buy them, and
their contracts will be binding. Co. Litt. 172 a. Necessaries for
the infant's wife &lad children, are necessaries for himself.
Str. 168; Com. Dig. Enfant, B 5; 1 Sid. 112 2 Stark. Ev. 725;
8 Day, 37 1 Bibb, 519; 2 Nott & McC. 524; 9 John. R. 141.; 16
Mass. 31; Bac. Ab. Infancy, I.
5. - 2. A wife is allowed to make contracts for necessaries,
and her husband is generally responsible upon tbem, because his
assent is presumed, and even if notice be given not to trust her,
still he would be liable for all such necessaries as she stood in
need of; but in this case, the creditor would be required to
show she did stand in need of the articles furnished. 1 Salk. 118
Ld. Raym. 1006. But if the wife elopes, though it be not with an
adulterer, ho is not chargeable even for necessaries; the very
fact of the slopement and 'Separation, is sufficient to put
persons on inquiry, and whoever gives credit to the wife
afterwards, gives it at his peril. 1 Salk. 119; Str. 647; 1
Sid. 109; S. C. 1 Lec. 4; 12 John. R. 293; 3 Pick. R. 289; 2
Halst. 146; 11 John. R. 281; 2 Kent, Com. 123; 2 St. Ev. 696;
Bac. Ab. Baron and Feme, H; Chit. Contr. Index, h. t.; 1 Hare &
Wall. Sel. Dec. 104, 106; Ham. on Parties, 217.
NECESSARY AND PROPER. The Constitution of the United States,
art. 1, s. 8, vests in congress the power " to make all laws,
which shall be necessary and proper, for carrying into execution
the foregoing powers, and all other powers vested by this
constitution in the government of the United States, in any
department or officer thereof."
2. This power bas ever been viewed with perhaps unfounded
jealousy and distrust. is a power expressly given, which, without
this clause, would, be im lied. The plain import of the clause
is, that congress shall have all incidental and instrumental
powers, necessary and proper to carry into execution all the
express powers. It neither enlarges any power, specifically
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granted, nor is it a grant of any new power to congress. It is
merely a declaration for the removal of all uncertainty, that the
means of carrying into execution those already granted, are
included in the grant.
3. Some controversy has taken place as to what is to be
considered " necessary; "it has been contended that by this must
be understood what is indispensable; but it is obvious the term
necessary means no more than useful, needful, requisite,
incidental, or conducive to. It is in this sense the word appears
to have been used, when connected with the word " proper." 4
Wheat. 418-420; 3 Story, Cons-t. §1231 to 1253.
NECESSARY INTROMISSION, Scotch law. When the husband or wife
continues, after the decease of his or her companion in
possession of the decedent's goods, for their preservation.
NECESSITY. In general, whatever makes the contrary of a thing
impossible, whatever may be the cause of such impossibilities,
2. Whatever is done through necessity, is done without any
intention, and as the act is done without will, (q. v.) and is
compulsory, the agent is not legally responsible. Bac. Max. Reg.
5. Hence the maxim, necessity has no law; indeed necessity is
itself a law which cannot be avoided nor infringed. Clef des Lois
Rom. h. t.; Dig 10, 3, 10, 1; Com. Dig. Pleader, 3 M 20, 3 M
30.
3. It follows, then, that the acts of a man in violation of
law., or to the injury of another, may be justified by necessity,
because the actor has no will to do or not to do the thing, he is
a mere tool; but, it is conceived, this necessity must be
absolute and irresistible, in fact, or so presumed in point of
law.
4. The cases which are justified by necessity, may be classed as
follows:
I. For the preservation of life; as if two persons are on the
same plank, and one must perish, the survivor is justified in
having thrown off the other, who was thereby drowned. Bac. Max,
Reg. 5.
5. - 2. Obedience by a person subject to the power of another;
for example, if a wife should commit a larceny with her husband,
in this case the law presumes she acted by coercion of her
husband, and, being compelled, by necessity, she is justifiable.
1 Russ. Cr. 16, 20; Bac. Max. Reg. 5.
6. - 3. Those cases which arise from the act of God, or
inevitable accident, or from the act of man, as public enemies.
Vide dct of God; Inevitable Accident and also 15 Vin. Ab. 534
Dane's Ab h. t.; 2 Stark. Ev. 713; Marsh. Ins. b. 1, c. 6, s. 3
Jacob's Intr. to. Com. Law. Reg. 74.
7. - 4. There is another species of necessity. The actor in
these cases is not compelled to do the act whether he will or
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not, but he has no choice left but to do the act which may be
injurious to another, or to lose the total use of his property.
For example, when a man's lands are surrounded by those of
others, so that he cannot enjoy them without trespassing on his
neighbors. The way which is thus obtained, is called a way of
necessity. Gale and Whatley on Easements, 71; 11 Co. 52; Hob.
234; 1 Saund. 323, note. See 3 Rawle, R. 495; 3 M'Cord, R. 131;
Id. 170; 14 Mass. R. 56; 2 B. & C. 96; 2 Bing. R. 76; 8 T. R.
50; Cro. Jac. 170; 2 Roll. Ab. 60; 3 Kent, Com. 423; 3
Rawle's R. 492; 1 Taunt. R. 279; 8 Taunt. R. 24; ST. R. 50;
Ham. N. P. 198; Cro. Jac. 170; 2 Bouv. Inst. n. 1637; and Way.
NEGATION. Denial. Two negations are construed to mean one
affirmation. Dig. 50, 16, 137.
NEGATIVE. This word has several significations. 1. It is used in
contradistinction to giving assent; thus we say the president
has put his negative upon such a bill. Vide Veto. 2. It is also
used in contradistinction to affirmative; as, a negative does
not always admit of the simple and direct proof of which an
affirmative is capable. When a party affirms a negative in his
pleadings, and without the establishment of which, by evidence,
he cannot recover or defend himself, the burden of the proof lies
upon him, and he must prove the negative. 8 Toull. n. 18. Vide 2
Gall. Rep. 485; 1 McCord, R. 573; 11 John. R. 513; 19 John. R.
345; 1 Pick. R. 375; Gilb. Ev. 145; 1 Stark. Ev. 376; Bull.
N. P. 298; 15 Vin. Ab. 540; Bac. Ab. Pleas, &c. I.
202. Although as a general rule the affirmative of every issue
must be proved, yet this rule ceases to operate the moment the
preumption of law is thrown into the other scale. When the issue
is on the legitimacy of a child, therefore, it is incumbent on
the party asserting the illegitimacy to prove it. 2 Selw. N. P.
709. Vide Affirmative Innocence.
NEGATIVE AVERMENT, pleading, evidence. An averment in some of
the pleadings in a case in which a negative is asserted.
2. It is a general rule, established for the purpose of
shortening and facilitating investigations, that the point in
issue is to be proved by the party who asserts the affirmative;
1 Phil. Ev. 184; Bull N. P. 298; but as this rule is not
founded on any presumption of law in fav-or of the party, but is
merely a rule of practice and conveience, it, ceases in all cases
when the presumption of law is thrown into the opposite scale.
Gilb. Ev. 145. For example, when the issue is on the legitimacy
of a child born in lawful wedlock, it is, incumbent on the party
asserting its illegitimacy to prove it. 2 Selw. N. P. 709.
3. Upon the same principle, when, the negative averment involves
a charge of criminal neglect of duty, whether official or
otherwise, it must be proved, for the law presumes every man to
perform the duties which it imposes. 2 Gall. R. 498; 19 John. R.
345; 10 East, R. 211; 3 B. & P. 302; 3 East, R. 192; 1 Mass.
R. 54; 3 Campb. R. 10; Greenl. Ev. SS 80; 3 Bouv. Inst. n.
3089. Vide Onus Probandi.
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NEGATIVE CONDITION, contracts, wills. One where the thing which
is the subject of it must not happen; as, if I do not marry.
Poth. Ob. n. 200; 1 Bouv. Inst. n. 751.
NEGATIVE PREGNANT, pleading. Such form of negative expression,
in pleading, as may imply or carry within it an affirmative.
2. This is faulty, because the meaning of such form of
expression is ambiguous. Example: in trespass for entering the
plaintiff's house, the defendant pleaded, that the plaintiff's
daughter gave him license to do so; and that he entered by that
license. The plaintiff replied that he did not enter by her
license. This was considered as a negative pregnant and it was
held the plaintiff should have traversed the entry by itself, or
the license by itself, and not both together. Cro. Jac. 87.
3. It may be observed that this form of traverse may imply; or
carry within it, that the license was given, though the defendant
did not enter by that license. It is therefore in the language of
pleading said to be pregnant with the admission, namely, that a
license was given: at the same time, the license is not
expressly admitted, and the effect therefore is, to leave it in
doubt whether the plaintiff means to deny the license, or to
deny, that the defendant entered by virtue of that license. It is
this ambiguity which appears to constitute the fault. 28 H. VI.
7; Hob. 295; Style's Pr. Reg. Negative Pregnant. Steph. PI.
381; Gourd, Pl. c. 6, §29-37.
4. This rule, however, against a negative pregnant, appears, in
modern times at least, to have received no very strict
construction; for many cases have occurred in which, upon
various grounds of distinction from the general rule, that form
of expression has been free from objection. See several instances
in Com. Dig. Pleader, R. 6; 1 Lev. 88; Steph. Pl. 383. Vide
Arch. Civ. PI. 218; Doct. Pl. 817; Lawe's Civ. Pl. 114; Gould,
Pl. c. 6, 36.
NEGATIVE STATUTE. One which is enacted in negative terms, and
which so controls the common law, that it has no force in
opposition to the statute. Bro. Parl. pl. 72; Bac. Ab. Statutes,
G.
NEGLIGENCE, contracts, torts. When considered in relation, to
contracts, negligence may be divided into various degrees,
namely, ordinary, less than ordinary, more than ordinary. 1
Miles' Rep. 40.
2. Ordinary negligence is the want of ordinary diligence;
slight or less than ordinary negligence, is, tlie want of great
diligence; and gross or more than ordinary negligence, is the
want of slight diligence.
3. Three great principles of responsibility, seem naturally to
follow this division.
4. - 1. In those contracts which are made for the sole benefit
of the creditor, the debtor is responsible only for gross
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negligence, good faith alone being required of him; as in the
case of a depositary, who is a bailee without reward; Story,
Bailm. 62; Dane's Ab. c. 17, a, 2; 14 Serg. & Rawle, 275; but
to this general rule, Pothier makes two exceptions. The first, in
relation to the contract of a mandate, and the second, to the
quasi contract negotiorum gestorum; in these cases, he says, the
party undertaking to perform these engagements, is bound to use
necessary care. Observation Generale, printed at the end of the
Traite des Obligations.
5. - 2. In those contracts which are for the reciprocal benefit
of both parties, such as those of sale, of hiring, of pledge, and
the like, the party is bound to take, for the object of the
contract, that care which a prudent man ordinarily takes of his
affairs, and he will therefore be held responsible for ordinary
neglect. Jones' Bailment, 10, 119; 2 Lord Raym. 909; Story,
Bailm. §23; Pothier, Obs. Gener. ubi supra.
6. - 3. In those contracts made for the sole interest of the
party who has received, and is to return the thing which is the
object of the contract, such, for example, as loan for use, or
commodatum, the slightest negligence will make him responsible.
Jones' Bailm. 64, 65; Story's Bailm. §237; Pothier, Obs. Gen.
ubi supra.
7. In general, a party who has caused an injury or loss to
another in consequence of his negligence, is responsible for all
the consequence. Hob. 134; 3 Wils. 126; 1 Chit. TI. 129, 130;
2 Hen. & Munf. 423; 1 Str. 596; 3 East, R. 596. An example of
this kind may be found in the case of a person who drives his
carriage during a dark night on the wrong side of the road, by
which he commits an injury to another. 3 East, R. 593; 1 Campb.
R. 497; 2 Cam b. 466; 2 New Rep. 119. Vide Gale and Whatley on
Easements, Index, h. t.; 6 T. R. 659; 1 East, R. 106; 4 B. &
A; 590; S. C. 6 E. C. L. R. 628; 1 Taunt. 568; 2 Stark. R.
272; 2 Bing. R. 170; 5 Esp. R. 35, 263; 5 B. & C. 550. Whether
the incautious conduct of the plaintiff will excuse the
negligence of the defendant, see 1 Q. B. 29; 4 P. & D. 642; 3
M. Lyr. & Sc. 9; Fault.
8. When the law imposes a duty on an officer, whether it be by
common law or statute, and he neglects to perform it, he may be
indicted for such neglect; 1 Salk. R. 380; 6 Mod, R. 96; and
in some cases such neglect will amount to a forfeiture of the
office. 4 Bl. Com. 140. See Bouv. Inst. Index, h. t.
NEGLIGENT ESCAPE. The omission to take such a care of a
prisoner as a gaoler is bound to take, and in consequence of it,
the prisoner departs from his confinement, without the knowledge
or consent of the gaoler, and eludes pursuit.
2. For a negligent escape, the sheriff or keeper of the prison
is liable to punishment in a criminal case; and in a civil case,
be is liable to an action for damages at the suit of the
plaintiff. In both cases, the prisoner may be retaken. 3 Bl. Com.
415.
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NEGOTIABLE. That which is capable of being transferred by
assignment; a thing, the title to which may be transferred by a
sale and indorsement or delivery.
2. A chose in action was not assignable at common law, and
therefore contracts or agreements could not be negotiated. But
exceptions have been allowed to this rule in relation to simple
contracts, and others have been introduced by legislative acts.
So that, now, bills of exchange, promissory notes, bills of
lading, bank notes, payable to order, or to bearer, and, in some
states, bonds and other specialties, may be transferred by
assignment, indorsement, or by delivery, when the instrument is
payable to bearer.
3. When a claim is assigned which is not negotiable at law,
such, for example, as a book debt, the title to it remains at law
in the assigner, but the assignee is entitled to it in equity,
and he may therefore recover it in the assignor's name. See,
generally, Hare & Wall. Sel. Dec. 158 to 194 Negotiable paper.
NEGOTIABLE PAPER, contracts. This term is applied to bills of
exchange and promissory notes, which are assignable by
indorsement or delivery.
2. The statute of 3 & 4 Anne (the principles of which have been
generally adopted in this country, either formally, or in
effect,) made promissory notes payable to a person, or to his
order, or bearer, negotiable like inland bills, according to the
custom of merchants.
3. This negotiable quality transfers the debt from the party to
whom it was originally owing, to the holder, when the instrument
is properly indorsed, so as to enable the latter to sue in his
own name, both the maker of a promissory note, or the acceptor of
a bill of exchange, and the other parties to such instruments,
such as the drawer of a bill, and the indorser of a bill or note,
unless the holder has been guilty of laches in giving the
required notice of non-acceptance or non-payment. But in order to
make paper negotiable, it is essential that it be payable in
money only, at all events, and not out of a particular fund. 1
Cowen, 691; 6 Cowen, 108; 2 Whart. 233; 1 Bibb, 490, 503; 1
Ham. 272; 3 J. J. Marsh, 174, 542; 3 Halst. 262; 4 Blackf. 47;
6 J. J. Marsh, 170; 4 Mont. 124. See 1 W. C. C. R. 512; 1
Miles, 294; 6 Munf. 3; 10 S. & R. 94; 4 Watts, 400; 4 Whart.
R. 252; 9 John. 120; 19 John. 144; 11 Verm. 268; 21 Pick.
140. Vide Promissory note. Vide 3 Kent. Com. Lecture 44; Com.
Dig. Merchant, F 15, 16; 2 Hill, R. 59; 13 East, 509; 3 B. &
C. 47; 7 Bing. 284; 5 T. R. 683; 7 Taunt. 265, 278; 3 Burr.
1516 6 Cowen, 151.
4. To render a bill or note negotiable, it must be payable to
order, or to bearer. When it is payable " to A B only," it cannot
be negotiated so as to give the indorsee a claim against any one
but his indorser. Dougl. 615. An indorsement to A B, without
adding " or order," is not restrictive to A B alone, he may,
therefore, assign it to another; Str. 557; or he may indorse it
in blank, when any attempt, afterwards, to restrain its
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negotiability will be unavailing. Esp. N. P. Cas. 180; 1 Bl.
Rep. 295. Vide Blank Indorsement; Indorsment.
NEGOTIATION, contracts The deliberation which takes place
between the parties touching a proposed agreement.
2. That which transpires in the negotiation makes no part of
the agreement, unless introduced into it. It is a general rule
that no evidence can be given to add, diminish, contradict or
alter a written instrument. 1 Dall. 426; 4 Dall. 340; 3 S. & R.
609; 7 S. & R. 114. See Pourparler
NEGOTIATION, merc. law. The act by which a bill of exchange or
promissory note is put into circulation by being passed by one of
the original parties to another person.
2. Until an accommodation bill or note has been negotiated,
there is no contract which can be enforced on the note: the
contract, either express or implied, that the party accommodated
will indemnify the other, is, till then, conditional. 2 Man. &
Gr. 911.
NEGOTIORUM GESTOR, contracts. In the civil law, the negotiorum
gestor is one who spontaneously, and without authority,
undertakes to act for another during his absence, in his affairs.
2. In cases of this sort, as he acts wholly without authority,
there can, strictly speaking, be no contract, but the civil law
raises a quasi mandate by implication, for the benefit of the
owner in many such cases. Poth. App. Negot. Gest. Mandat, n. 167,
&c.; Dig. 3, 5, 1, 9; Code, 2, 19, 2.
3. Nor is an implication of this sort wholly unknown to the
common law., where there has been a subsequent ratification of
acts of this kind by the owner; and sometimes, when unauthorized
acts are done, positive presumptions are made by law for the
benefit of particular, parties. For example, if a person enters
upon a minor's lands, and takes the profit's, the law will oblige
him to account to the minor for the profits, as his bailiff, in
many cases. Dane's Abr. ch. 8, art. 2; SS 10; Bac. Abr. Account
1; Com. Dig. Accompt, A 3.
4. There is a case which has undergone decisions in our law,
which approaches very near to that of negotionum gestorum. A
master bad gratuitously taken charge of, and received on board of
his vessel a box, containing doubloons and other valuables,
belonging to a passenger, who was to have worked his passage, but
was accidentally left behind. During the voyage, the master
opened the box, in the presence of the passengers, to ascertain
its contents, and whether there were contraband goods in it; and
he took out the contents and lodged them in a bag in his own
chest in his cabin, where his own valuables were kept. After his
arrival in port, the bag was missing. The master was held
responsible for the loss, on the ground that he had imposed on
himself the duty of carefully guarding against all peril to which
the property was exposed by means of the alteration in the place
of custody, although as a bailee without hire, he might not
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otherwise have been bound to take more than a prudent care of
them; and that he had been guilty of negligence in guarding the
goods. 1 Stark. R. 237. See Story, Bailm. §189; Story, Agency,
§142; Poth. Pand. 1. 3, t. 5, n. 1 to L4; Poth. Ob. n. 113; 2
Kent, Com. 616, 3d ed; Ersk. Inst. B. 1, t. 3, SS 52; Stair,
Inst. by Brodie, B. l, t. 8, §3 to 6.
NEIF, old Eng. law. A woman who was born a villain, or a bond
woman.
NEMINE CONTRADICENTE, legislation. These words, usually
abbreviated nem. con., are used to signify the unanimous consent
of the house to which they are applied. In England they are used
in the house of commons; in the house of lords, the words to
convey the same idea are nemine dissentiente.
NEPHEW, dom. rel. The son of a person's brother or sister. Amb.
514; 1 Jacob's Ch. R. 207.
NEPOS. A grandson. This term is used in making genealogical
tables.
NEUTRAL PROPERTY, insurance. The words "neutral property " in a
policy of insurance, have the effect of warranting that the
property insured is neutral; that is, that it belongs to the
citizens or subjects of a state in amity with the belligerent
powers.
2. This neutrality must be complete hence the property of a
citizen or subject of a neutral state, domiciled in the dominions
of one of the belligerents, and carrying on commerce there, is
not neutral property; for though such person continue to owe
allegiance to bis country, and may at any time by returning there
recover all the privileges of a citizen or subject of that
country; yet while he resides in the dominion of a belligerent
he contributes to the wealth and strength of such belligerent,
and is not therefore entitled to the protection of a neutral
flag; and his property is deemed enemy's property, and liable to
capture, as such by the other belligerent. Marsh. Ins. B. 1, c.
9, s. 6; l John. Cas. 363; 3 Bos. & Pull. 207, u. 4; Esp. R.
108; l Caines' R. 60; 16 Johns. R. 128. See also 2 Johns. Cas.
478; 1 Caines' C. Err. xxv.; l Johns. Cas. 360; 2 Johns. Cas.
191.
3. If the warranty of neutrality be false at the time, it is
made, the policy will be void ab initio. But if the 'ship, and
property are neutral at the time when the risk commences, this is
a sufficient compliance with a warranty of neutral property, and
a subsequent declaration of war will not be a breach of it.
Dougl. 705. See 1 Binn. 293; 8 Mass. 308; 14 Johns. R. 308; 5
Binn. 464; 2 Serg. & Rawle, 119; 4 Cranch, 185; 7 Cranch, 506;
2 Dall. 274.
NEUTRALITY, international law. The state of a nation which
takes no part between two or more other. nations at war with each
other.
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2. Neutrality consists in the observance of a strict and honest
impartiality, so as not to afford advantage in the war to either
party; and particularly in so far restraining its trade to the
accustomed course, which is held in time of peace, as not to
render assistance to one of the belligerents in escaping the
effects of the other's hostilities Even a loan of money to one of
the belligerent parties is considered a violation of neutrality.
9 Moore's Rep. 586. A fraudulent neutrality is considered as no
neutrality.
3. In policies of insurance there is frequently a warranty of
neutrality. The meaning of this warranty is, that the property
insured is neutral in fact, and it shall be so in appearance and
conduct; that the property does belong to neutrals; that it is
or shall be documented so as to prove its neutrality, and that no
act of the insured or his agents shall be done which can legally
compromise its neutrality. 3 Wash. C. C. R. 117. See 1 Caines,
548; 2 S. & R. 119; Bee, R. 5; 7 Wheat. 471; 9 Cranch, 205;
2 John. Cas. 180; 2 Dall. 270; 1 Gallis. 274; Bee, R. 67.
4. The violation of neutrality by citizens of the United
States, contrary to the provisions of the act of congress of
April 20, 1818, §3, renders the individual liable to an
indictment. One fitting out and arming a vessel in the United
States, to commit hostilities against a foreign power at peace
with them, is therefore indictable. 6 Pet. 445; Pet. C. C. R.
487. Vide Marsh. Ins. 384 a; Park's Ins. 'Index, h. t.; 1 Kent,
Com. 116; Burlamaqui, pt. 4, c. 5, s. 16 & 17; Bunk. lib. 1, c.
9; Cobbett's Parliamentary Debates; 406; Chitty, Law of Nat.,
Index, h. t.; Mann. Comm. B. 3, c. 1; Vattel, 1. 3, c. 7, SS
104; Martens, Precis. liv. 8, c. 7, SS 306; Boucb. Inst. n.
1826-1831.
NEW. Something not known before.
2. To be patented, an invention must be new. When an invention
has been described in a printed book which has been publicly
circulated, and afterwards a person takes out a patent for it,
his patent is invalid, because the invention was not new, 7 Mann'
& Gr. 818. See New and Useful Invention.
NEW AND USEFUL INVENTION. This phrase is used in tlie act of
congress relating to granting patents for inventions.
2. The invention to be patented must not only be new, but
useful; that is, useful in contradistinction to frivolous or
mischievous inventions. It is not meant that the invention should
in all cases be superior to the modes now in use for the same
purposes. 1 Mason's C. C. R. 182; 1 Mason's C. C. R. 302; 4
Wash. C. C. R. 9: 1 Pet. C, C. R. 480, 481; 1 Paine's C. C. R.
203; 3 Mann. Gr. & Scott, 425. The law as to the usefulness of
the invention is the same in France. Renouard, c. 5, s. 16, n. 1,
page 177.
NEW FOR OLD. A term used in the law of insurance in cases of
adjustment of a loss, when it has been but partial. In making
such adjustment the rule is to apply the old materials towards
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the payment of the new, by deducting the value of them from the
gross amount of the expenses for repairs, and to allow the
deduction of one-third new for old upon the balance. See 1 Cowen,
265; 4 Cowen, 245; 4 Ohio, 284; 7 Pick. 259; 14 Pick. 141.
NEW or NOVEL ASSIGNMENT, pleading. Declarations are conceived
in very general terms, and sometimes, from the nature of the
action, are so framed as to be capable of covering several
injuries. The effect of this is, that, in some cases, the
defendant is not sufficiently guided by the declaration to the
real cause of complaint; and is, therefore, led to apply his
answer to a different matter from that which the plaintiff has in
view. For example, it may happen that the plaintiff has, been
twice assaulted by the defendant, and one of the assaults is
justifiable, being in self-defence, while the other may have been
committed without legal excuse. Supposing the plaintiff to bring
an action for the latter; from the generality of the statement
in the declaration, the defendant is not informed to which of the
two assaults the plaintiff means to refer. The defendant may,
therefore, suppose, or affect to suppose, that the first is the
assault intended, and will plead son assault demesne. This plea
the plaintiff cannot safely traverse, because an assault was in
fact committed by the defendant, under the, circumstances of
excuse here alleged; the defendant would have a right under the
issue joined upon such traverse, to prove these circumstances,
and to presume that such assault, and no other, was the cause of
action. The plaintiff, therefore, in the supposed case, not being
able safely to traverse, and having no ground either for
demurrer, or for pleading in confession and avoidance, has no
course, but, by a new pleading, to correct the mistake occasioned
by the generality of the declaration, and to declare that he
brought his action not for the first but for the second assault
and this is called a new assignment. Steph. PI. 241-243.
2. As the object of a new assignment is to correct a mistake
occasioned by the generality of the declaration, it always occurs
in answer to a plea, and is therefore in the nature of a
replication. It is not used in any other part of the pleading.
3. Several new assignments may occur in the course of the same
series of pleading.
4. Thus in the above example, if it be supposed that three
distinct assaults had been committed, two of which were
justifiable, the defendant might plead as above to the
declaration, and 'then, by way of plea to the new assignment,, he
might again justify, in the same manner, another assault; upon
which it would be necessary for the plaintiff to new-assign a
third; and this upon the first principle by which the first new
assignment was required. 1 Chit. PI. 614; 1 Saund. 299 c.
5. A new assignment is said to be in the nature of a new
declaration. Bac. Abr. Trespass I, 4, 2; 1 Saund. 299 c. It
seems, however, more properly considered as a repetition of the
declaration; 1 Chit. PI. 602; differing only in this, that it
distinguishes the true ground of complaint, as being different
from that which is covered by the plea. Being in the nature of a
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new or repeated declaration, it is consequently to be framed with
as much certainty or specification of circumstances, as the
declaration itself. In some cases, indeed, it should be even more
particular. Bac. Abr. Trespass, I 4, 2; 1 Chitt. Pl. 610;
Steph. Pl. 245. See 3 Bl. Com. 311; Arch. Civ. 318; Lawes' Civ.
PI. Pl. 286; Doct. Pl. 318; Lawes' Civ. Pl. 163.
NEW HAMPSHIRE. The name of one of the original states of the
United States of America. During its provincial state, New
Hampshire was governed, down to the period of the Revolution, by
the authority of royal commissions. Its general assembly enacted
the laws necessary for its welfare, in the manner provided for by
the commission under which they then acted. 1 Story on the Const.
Book, 1, c. 5, §§78 to 81.
2. The constitution of this state was altered and amended by a
convention of delegates, held at Concord, in the said state, by
adjournment, on the second Wednesday of February, 1792.
3. The powers of the government are divided into three
branches, the legislative, the executive, and the judicial.
4. - 1st. The supreme legislative power is vested in the senate
and house of representatives, each of which bas a negative on the
other.
5. The senate and house are required to assemble on the first
Wednesday in June, and at such times as they may judge necessary
and are declared to be dissolved seven days next preceding the
first Wednesday in June. They are styled The General Court of New
Hampshire.
6. - 1. The senate. It will be considered with reference to the
qualifications of the electors the qualifications of the members;
the number of members; the duration of their office; and the
time and place of their election.
7. - 1. Every male inhabitant of each town, and parish with
town privileges, and places unincorporated, in this state, of
twenty-one years of age and upwards, excepting paupers, and
persons excused from paying taxes at their own request, have a
right at the annual or other town meetings of the inhabitants of
said towns and parishes, to be duly warned and holden annually
forever in the month of March, to vote in the town or parish
wherein he dwells, for the senators of the county or district
whereof be is a member.
8. - 2. No person shall be capable of being elected a senator,
who is not seised of a freehold estate, in his own right, of the
value of two hundred pounds, lying within this state, who is not
of the age of thirty years, and who shall not have been an
inhabitant of this state for seven years immediately preceding
his election, and a the time thereof he shall be an inhabitant of
the district for which he shall be chosen.
9. - 3. The senate is to consist of twelve members.
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10. - 4. The senators are to hold their offices from the first
Wednesday in June next ensuing their election.
5. The senators are elected by the electors in the month of
March.
11. - 2. The house of representatives will be considered in
relation to its constitution, under the same divisions which have
been made in relation to the senate.
12. - 1. The electors are the same who vote for senators.
13. - 2. Every member of the house of representatives shall be
chosen by ballot; and for two years at least next preceding his
election, shall have been an inhabitant of this state; shall
have an estate within the district which he may be chosen to
represent, of the value of one hundred pounds, one half of which
to be a freehold, whereof he is seised in his own right; shall
be, at the time of his election, an inhabitant of the district he
may be chosen to represent and shall cease to represent such
district immediately on his ceasing to be qualified as aforesaid.
14. - 3. There shall be in the legislature of this state, a
representation of the people, annually elected, and founded upon
principles of equality; and in order that such representation
may be as equal as circumstances will admit, every town, parish,
or place, entitled to town privileges, having one hundred and
fifty rateable male polls, of twenty-one years of age, and
upwards, may elect one representative; if four hundred and fifty
rateable male polls, may elect two representatives; and so,
proceeding in that proportion, make three hundred such rateable
polls, the mean of increasing number, for every additional
representative. Such towns, parishes, or places, as have less
than one hundred and fifty rateable polls, shall be classed by
the general assembly, for the purpose of choosing a
representative, and seasonably notified thereof. And in every
class formed for the above mentioned purpose, the first annual
meeting shall be held in the town, parish, or place, wherein most
of the rateable polls reside; and afterwards in that which has
the next highest number and so on, annually, by rotation, through
the several towns, parishes, or places forming the district.
Whanever any town, parish, or place entitled to town privileges,
as aforesaid, shall not have one hundred and fifty rateable
polls, and be so situated as to render the classing thereof with
any, other town, parish, or place very inconvenient; the general
assembly may, upon application of a majority of the voters of
such town, parish, or place, issue a writ for their selecting and
sending, a representative to the general court.
15. - 4. The members are to be chosen annually.
16. - 5. The election is to be in the month of March.
17. - 2. The executive power consists of a governor and a
council.
18. - 1. Of the governor. 1. The qualifications of electors of
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governor, are the same as those of senators.
19. - 2. The governor, at the time of his election, must have
been an inhabitant of this state for the seven years next
preceding, be of the age of thirty years, and have an estate of
the value of five hundred pounds, one-half of which must consist
of a freehold in bis own right, within the state.
20. - 3. He is elected annually.
21. - 4. The election is in the month of March.
22. - 5. His general powers and duties are as follows, namely
1. In case of any infectious distemper prevailing in the place
where the general court at any time is to convene, or any other
cause whereby dangers may arise to the health or lives of the
members from their attendance, the governor may direct the
session to be holden at some other. 2. He is invested with the
veto power. 3. He is commander-in-chief of the army and navy, and
is invested with power on this subject very minutely described in
the contitution as follows, namely: The governor of the state
for the time being shall be commander-in-chief of the army and
navy, and all the military forces of this state, by sea and land:
ana shall have full power, by himself or by any chief commander,
or other officer or officers, from time to time, to train,
instruct, exercise and govern the militia and navy; and for the
special defence and safety of this state, to assemble in martial
array, and put in warlike posture the inhabitants thereof, and to
lead and conduct them, and with them encounter, repulse, repel,
resist, and pursue, by force of arms, as well by sea as by land,
within and without the limits of this state; and also to kill,
slay, destroy, if necessary, and conquer by all fitting ways,
enterprise and means, all and every such person and persons as
shall at any time hereafter in a hostile manner attempt or
enterprise the destruction invasion, detriment, or annoyance of
this state; and to use and exercise over the army and navy, and
over the militia in actual service, the law martial in time of
war, invasion, and also in rebellion, declared by the legislature
to exist, as occasion shill necessarily require. And surprise, by
all ways and means whatsoever, all and every such person or
persons, with their ships, arms, ammunition, and other goods, as
shall in a hostile manner invade, or attempt the invading,
conquering, or annoying this state: And, in fine, the governor
is hereby entrusted with all other powers incident to the office
of captain-general and commander-in-chief, and admiral, to be
exercised agreeably to the rules and regulations of the
constitution, and the laws of the land: Provided, that the
governor shall not at any, time hereafter, by virtue of any power
by this constitution granted, or hereafter to be granted to him
by the legislature, transport any of the inhabitants of this
state, or oblige them to march out of the limits of the same,
without their free and voluntary consent, or the consent of the
general court, nor grant commissions for exercising the law
martial in any case, without the advice and consent of the
council.
23. Whenever the chair of the governor shall become vacant, by
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reason of* his death, absence from the state or otherwise, the
president of the senate shall, during such 'Vacancy, have and
exercise all the powers and authorities which, by this
constitution, the governor is vested with, when personally
present; but when the president of the senate shall exercise the
office of governor, he shall not hold his office in the senate.
24. - 2. The council. 1. This body is elected by the
freeholders and other inhabitants qualified to vote for senators.
2. No person shall be capable of being elected a councillor who
has not an estate of the value of five hundred pounds within this
state, three hundred pounds of which (or more) shall be a
freehold in his own right, and who is not thirty years of age;
and who shall not have been in inhabitant of this state for seven
years immediately preceding his election; and at the time of his
election an inhabitant of the county in which he is elected. 3.
The council consists of five mem bers. 4. They are elected
annually. 5. The election is in the month of March. 6. Their
principal duty is to advise the governor.
25.-3. The governor and council jointly. Their principal,
powers and duties are as follows: 1. They may adjourn the
general court not exceeding ninety days at one time, when the two
houses cannot agree as to the time of adjournment. 2. They are
required to appoint all judicial officers, the attorney-general,
solicitors, all sheriffs, coroners, registers of probate, and all
officers of the navy, and general and field officers of the
militia; in these cases the governor and council have a negative
on each other. 3. They have the power of pardoning offences,
after conviction, except in cases of impeachment.
26. - 2d. The judicial power is distributed as follows:
The tenure that all commissioned officers shall have by law in
their offices, shall be expressed in their respective commissions
all judicial officers, duly appointed, commissioned and sworn,
shall hold. their offices during good behaviour, excepting those
concerning whom there is a different provision made in this
constitution: Provided, nevertheless, the governor, with consent
of council, may remove them upon the address of both houses of
the legislature.
27. Each branch of the legislature, as well as the governor and
council, shall have authority to require the opinions of the
justices of the superior court, upon important questions of law,
and upon solemn occasions.
28. In order that the people play not suffer from the long
continuance in, place of any justice of the peace, who shall fail
in discharging the important duties of his office with ability
and fidelity, all commissions of justices of the peace shall
become void at the expiration of five years from their respective
dates; and upon the expiration of any commission, the same may,
if necessary, be renewed, or another person appointed, as shall
most conduce to the well being of the state.
29. All causes of marriage, divorce, and alimony, and all
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appeals from the respective judges of probate, shall be heard and
tried by the superior court until the legislature shall by law
make other provision.
30. The general court are empowered to give to justices of the
peace jurisdiction in civil causes, when the damages demanded
shall not exceed four pounds, and title of real estate is not
concerned but with right of appeal to either party, to some other
court, so that a trial by jury in the last resort may be had.
31. No person shall hold the office of a judge in any court, or
judge of probate, or sheriff of any county, after he has attained
the age of seventy years.
32. No judge of any court, or justice of the peace, shall act
as attorney, or be of counsel, to any Party, or originate any
civil suit, in matters which shall come or be brought before him
as judge, or justice of the peace.
33. All matters relating to the probate of wills, and granting
letters of administration, shall be exercised by the judges of
probate, in such manner as the legislature have directed, or may
hereafter direct; and the judges of probate shall hold their
courts at such place or places, on such fixed days as the
conveniency of the people may require, and the legislature from
time to time appoint.
34. No judge or register of probate, shall be of counsel, act
as advocate, or receive any fees as advocate or counsel, in any
probate business which is pending or may be brought into any
court of probate in the county of which he is judge or register.
NEW JERSEY. The name of one of the original states of the
United States of America. This state, when it was first settled,
was divided into, two provinces, which bore the names of East
Jersey and West Jersey. They were granted to different
proprietaries. Serious dissensions having arisen between them,
and between them and New York, induced the proprietaries of both
provinces to make a formal surrender of all their powers of
government, but not of their lands, to Queen Anne, in April,
1702; they were immediately reunited in one province, and
governed by a governor appointed by the crown, assisted by a
council, and an assembly of the representatives of the people,
chosen by the freeholders. This form of government continued till
the American Revolution.
2. A constitution was adopted for New Jersey on the second day
of July, 1776, which continued in force till the first day of
September, 1844, inclusive. A convention was assembled at Trenton
on the 14th of May, 1844; it continued in, session till the 29th
day of Tune, 1844, when the new constitution was adopted, and it
is provided by art. 8, s. 4, that this constitution shall take
effect and go into operation on the second day of September,
1844.
3. By art. 3, the powers of the government are divided into
three distinct department, the legislative, executive and
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judicial. It further provided that no person or persons belonging
to, or constituting one of these departments, shall exercise any
of the powers properly belonging to either of the others, except
therein expressed.
4. - §1. The legislative power shall be vested in a senate and
general assembly. Art. 4, s. 1, n. 1.
5. - 1st. In treating of the senate, it will be proper to
consider, 1. The of senators. 2. Of the electors of senators. 3.
Of the number-of senators. 4. Of the time for which they are
elected.
6. - 1. No person shall be a member of the senate, who shall
not have attained the age of thirty years, and have been a
citizen and inhabitant of the state for four years, and of the
county for which he shall be chosen one year, next before his
election. And he must be entitled to suffrage at the time of his
election. Art. 4, s. 1, n. 2.
7. - 2. Every white male citizen of the United States, of the
age of twenty-one years, who shall have been a resident of this
state one year, and of the county in which he claims his vote
five months next before the election, shall be entitled to vote
for all officers that now are, or hereafter may be elective by
the people; provided, that no person in the military, naval, or
marine service of the United States, shall be considered a
resident in this state, by, being stationed in any garrison,
barrack, or military or naval place or station within this state;
and no pauper, idiot, insane person, or person convicted of a
crime which now excludes him from being a witness, unless
pardoned or restored by law to the right of suffrage, shall enjoy
the right of an elector.
8.-3. The senate shall be composed of one senator from each
county in the state. Art-. 4, s. 2, n. 1.
9. - 4. The senators are elected on the second Tuesday of
October, for three years. Art. 4, s. 2, n. 1. As soon as the
senate shall meet after the first election to be held in
pursuance of this constitution, they shall be divided, as equally
as may be, into three classes. The seats of the, senators of the
first class shall be vacated at the expiration of the first year;
of the second class at the expiration of the second year; and of
the third class at the expiration of the third year; so that one
class may be elected every year; and if vacancies happen, by
resignation or otherwise, the person elected to supply such
vacancies shall be elected for the unexpired terms only. Art. 4,
s. 2, n. 2.
10. - 2d. The general assembly will be considered in the same
order that has been observed in speaking of the senate.
11. - 1. No person shall be a member, of the general assembly,
who shall not have attained the age of twenty-one years, and have
been a citizen and inhabitant of the state for two years, and of
the county for which he shall be chosen one year next before his
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election. He must be entitled to this right of suffrage. Art. 4,
s. 1, n. 2.
12. - 2. The same persons who elect senators elect members of
the general assembly.
13. - 3. The general assembly shall be composed of members
annually elected by the legal voters of the counties,
respectively, who shall be apportioned among the said counties as
nearly as may be according to the number of their inhabitants.
The present apportionment shall continue until the next census of
the United States shall have been taken, and an apportionment of
members of the general assembly shall be made by the legislature,
at its first session after the next and every subsequent
enumeration or census, and when made shall remain unaltered until
another enumeration shall have been taken; provided, that each
county shall at all times be entitled to one member: and the
whole number of members shall never exceed sixty.
14. - 4. Members of the legislature are elected yearly on the
second Tuesday of October.
15. - 3d. The powers of the respective houses are as follows:
16. - 1. Each house shall direct writs of election for
supplying vacancies, occasioned by death, resignation,
or:otherwise; but if vacancies occur during the recess of the
legislature, the writs may be issued by the governor, under such
regulations as may be prescribed by law.
17. - 2. Each house shall be the judge of the elections,
returns, and qualifications of its own members, and a majority of
each shall constitute a quorum to do business; but a smaller
number may adjourn from day to day, and may be. authorized to
compel the attendance of absent members, in such manner and under
such penalties as each house may provide.
18. - 3. Each bouse shall choose its own officers, determine
the rules of its proceedings, punish its members for disorderly
behaviour, and, with the concurrence of two-thirds, may expel a
member.
19. - 4. Each house shall keep a journal of its proceedings,
and from time to time publish the same; and the yeas and nays of
the members of either house, on any question, shall, at the
desire of one-fifth of those present, be entered on the journal.
20. - 5. Neither house, during the session of the legislature,
shall, without the consent of the other, adjourn for more than
three days, nor to any other place than that in which the two
houses shall be sitting.
21. - 6. All bills and joint resolutions shall be read three
time; in each house, before the final passage thereof; and no
bill or joint resolution shall pass, unless there be a majority
of all the members of each house personally present and agreeing
thereto: and the yeas and nays of members voting on such final
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passage shall be entered on the journal.
22. - 7. Members of the senate and general assembly shall
receive a compensation for their services, to be ascertained by
law, and paid out of the treasury of the state; which
compensation shall not exceed the sum of three dollars per day
for the period of forty days from the commencement of the
session; and shall not exceed the sum of one dollar and fifty
cents per day for the remainder of the session. When convened in
extra session by the governor, they shall receive such sum as
shall be fixed for the first forty days of the ordinary session.
They shall also receive the sum of one dollar for every ten miles
they shall travel, in going to and returning from their place of
meeting, on the most usual route. The president of the senate,
and the speaker of the house of assembly shall, in virtue of
their offices, receive an additional compensation equal to
one-third of their per diem allowance as members.
23. - 8. Members of the senate and of the general assembly
shall, in all cases except treason, felony, and breach of the
peace, be privileged from arrest during their attendance at the
sitting of their respective houses, and in going to and returning
from the same: and for any speech or debate, in either house,
they shall not be questioned in any other place.
24. - §2. By the fifth article of the constitution, the
executive power is vested in a governor. It will be convenient to
consider, 1. The qualifications of the governor. 2. By whom he is
elected. 3. The duration of his office. 4. His powers: and 5.
His salary.
25. - 1. The governor shall be not less than thirty years of
age, and shall have been for twenty years, at least, a citizen of
the United States, and a resident of this state seven years next
before his election, unless be shall have been absent during that
time on the public business of the United States or of this
state.
26. - 2. He is chosen by the legal voters of the state.
27. - 3. The governor holds his office for three years, to
commence on the third Tuesday of January next ensuing the
election of governor by the people, and to end on the Monday
preceding the third Tuesday of January, three years thereafter;
and he cannot nominate nor appoint to office during the last week
of his term. He is not reeligible without an intermission of
three years. Art. 5, n. 3.
28. - 4. His powers are as follows: He shall be the
commander-in-chief of all the military and naval forces of the
state; he shall have power to convene the legislature, whenever,
in his opinion, public necessity requires it; he shall
communicate, by message, to the legislature, at the opening of
each session, and at such other times as he may deem necessary,
the condition of the state, and recommend such measures as he may
deem expedient; he shall take care that the laws be faithfully
executed, and grant, under the great seal of the state,
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commissions to all such officers as shall be required to be
commissioned.
29. Every bill which shall have passed both houses shall be
presented to the governor: if he approve, he shall sign it, but
if not, he sball return it, with his objections, to the house in
which it shall have originated, who shall enter the objections at
large on their journal, and proceed to reconsider it; if, after
such reconsideration, a majority of the whole number of that
house shall agree to pass the bill, it shall be sent, together
with the objections, to the other house, by which it shall
likewise be reconsidered, and if approved of by a majority of the
whole number of that house, it shall become a law; but in
neither house shall the vote be taken on the same day on which
the bill shall be returned to it; and in all such cases the
votes of both houses shall be determined by yeas and nays, and
the names of the persons voting for and against the bill shall be
entered on the journal of each house respectively. If any bill
shall not be returned by the governor, within five days (Sunday
excepted) after it shall have been presented to him, the same
shall be a law, in like manner as if he had signed it, unless the
legislature, by their adjournment, prevent its return, in which
case it shall not be a law.
30. The governor, or person administering the government, shall
have power to suspend the collection of fines and forfeitures,
and to grant reprieves, to extend until the expiration of a time
not exceeding ninety days after conviction but this power shall
not extend to cases of impeachment.
31. The governor, or person administering the government, the
chancellor, and the six judges of the court of errors and
appeals, or a major part of them, of whom the governor or person
administering the government shall be one, may remit fines and
forfeitures, and grant pardons after conviction, in all cages
except impeachment.
32. - 5. The governor shall, at stated times, receive for his
services a compensation which shall be neither increased nor
diminished during 'the period for which be shall have been
elected.
33. - §3. The judicial power shall be vested in a court of
errors and appeals in the last resort in all causes, as
heretofore; a court for the trial of impeachments; a court of
chancery; a prerogative court; a supreme court; circuit
courts, and such inferior courts as now exist, and as may be
hereafter ordained and established by law; which inferior courts
the legislature may alter or abolish, as the public good shall
require.
34. - 1. The court of errors and appeals shall consist of the
chancellor, the justices of the supreme court, and six judges, or
a major part of them; which judges are to be appointed for six
years.
35. - 2. Immediately after the court shall first assemble, the
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six judges shall arrange themselves; in such manner that the
seat of one of them shall be vacated every year, in order that
thereafter one judge may be annually appointed.
36.- 3. Such of the six judges as shall attend the court shall
receive, respectively, a per diem compensation, to be provided by
law.
37. - 4. The secretary of state shall be the clerk of this
court.
38. - 5. When an appeal from an order or decree shall be heard,
the chancellor shall inform the court, in writing, of the reasons
for his order or decree but he shall not sit as a member, or have
a voice in the hearing or final sentence.
39. - 6. When a writ of error shall be brought, no justice who
has given a judicial opinion in the cause, in favor of or against
any error complained of, shall sit as a member, or have a voice
on the hearing, or for its affirmance or reversal; but the
reasons for such opinion shall be assigned to the court in
writing.
40. - 1. The house of assembly shall have the sole power of
impeaching, by a vote of a majority of all the members; and all
impeachments shall be tried by the senate: the members, when
sitting for that purpose, to be on oath or affirmation "truly and
impartially to try and determine the charge in question according
to evidence:" and no person shall be convicted without the
concurrence of two-thirds of all the members of the senate.
41. - 2. Any individual officer impeached shall be suspended
from exercising his office until bis acquittal.
42. - 3. Judgment, in cases of impeachment, shall not extend
farther than. to removal from, office and to disqualification to
hold and enjoy any office of honor, profit, or trust under this
state; but the party convicted shall nevertheless be liable to
indictment, trial, and punishment, according to law.
43. - 4. The secretary of state shall be the clerk of this
court.
44. - 1. The court of chancery shall consist of a chancellor.
45. - 2. The chancellor shall be the ordinary, or
surrogate-general, and judge of the prerogative court.
46. - 3. All persons aggrieved by any order, sentence, or
decree of the orphans' court may appeal from the same, or from
any part thereof, to the prerogative court; but such order,
sentence, or decree shall not be removed into the supreme court,
or circuit court if the subject matter thereof be within the
jurisdiction of the orphans' court.
47. - 4. The secretary of state shall be the register of the
prerogative court, and shall perform the duties required of him
by law in that respect.
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48. - 1. The supreme court shall consist of a chief justice and
four associate justices. The number of associate justices may be
increased or decreased by law, but shall never be less than two.
49. - 2. The circuit courts shall be held in every county of
this state, by one or more of the justices of the supreme court,
or a judge appointed for that purpose; and shall in all cases
within the county, except in those of a criminal nature, have
common law jurisdiction concurrent with the supreme court; and
any final judgment of a circuit court may be docketed in the
supreme court, and shall operate as a judgment obtained in the
supreme court, from the time of such docketing.
50. - 3. Final judgments in any circuit court may be brought by
writ of error into the supreme court, or directly into the court
of errors and appeals.
51. - 1. There shall be no more than five judges of the
inferior court of common pleas in each of the counties in this
state after the terms of the judges of said court now in office
shall terminate. One judge for each county shall be appointed
every year, and no more, except to fill vacancies, which shall be
for the unexpired term only.
52. - 2. The commissions for the first appointments of judges
of said court shall bear date and take effect on the first day of
April next; and an subsequent commissions for judges of said
court shall bear date and take effect on the first day of April
in every successive year, except commissions to fill vacancies,
which shall hear date and take effect when issued.
53. - 1. There may be elected under this constitution two, and
not more than five, justices of the peace in each of the
townships of the several counties of this state, and in each of
the wards, in cities that may vote in wards. When a township or
ward contains two thousand inhabitants or less, it may have two
justices; when it contains more than two thousand inhabitants,
and not more than four thousand, it may have four justices; and
when it contains more than four thousand inhabitants, it may
have, five justices; provided, that whenever any township, not
voting in wards, contains more than seven thousand inhabitants,
such township) may have an additional justice for each additional
three thousand inhabitants above four thousand.
54. - 2. The population of the townships in the several
counties of the state and of the several wards shall be
ascertained by the lost preceding census of the United States,
until the legislature shall provide by law some other mode of
ascertaining it.
NEW MATTER, pleading. All facts alleged in pleading, which go
in avoidance of what is before, pleaded, on the opposite side,
are called new matter. In other words, every allegation made in
the pleadings, subsequent to the declaration, and which does not
go in denial of what is before alleged on the other side, is an
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allegation of new matter; generally, all new matter must be
followed by a verification. (q. v.) Gould, Pl. c. 3, §195; 1
Saund. 103, n. 1; Steph. PI. 251; Com. Dig. Pleader, E 32; 2
Lev. 5; Vent. 121; 1 Chit. PI. 538; 3 Bouv. Inst. n. 2983. In
proceedings in equity, when new matter has been discovered by
either plaintiff or defendant, before a decree has been
pronounced, a cross bill has been permitted to bring such matter
before, the court to answer the purposes of justice. After the
answer has been filed, it cannot be introduced by amendment; the
only way to introduce it, is by filing a supplemental bill. 4
Bouv. Inst. n. 4385 - 87; 1 Paige 200; Harring. Ch. 438.
NEW PROMISE. A contract made, after the original promise has
for some cause been rendered, invalid, by which the promiser
agrees to fulfil such original promise.
2. When a debtor has been discharged under the bankrupt laws,
the remedy against him is clearly gone, so when an infant has
made a contract prejudicial to his interest, he may avoid it;
and when by lapse of time a debt is barred by the act of
limitations, the debtor may take advantage of the act, but in all
these cases there remains a moral obligation, and if the original
promiser renews the contract by a new promise, this is a
sufficient consideration. See 8 Mass. 127; 2 S. & It. 208; 2
Rawle, 351; 5 Har. & John. 216; 2 Esp. C. 736; 2 H. Bl. 116;
8 Moore, 261; 1 Bing. 281; 1 Dougl. 192; Cowp. 544; Bac. Ab.
Infancy and A e, I; Bac. Ab. Limitation of actions, E 85
3. Formerly the courts construed the slightest admission of the
debtor as evidence of a new promise to pay; but of late years a
more reasonable construction is put upon men's contracts, and the
promise must be express, or at least, the acknowledgment of
indebtedness must not be inconsistent with a promise to pay. 4
Greenl. 41, 413; 2 Hill's S. C. 326; 2 Pick. 368; 1 South.
153; 14 S. & R. 195; 1 McMull. R. 197; 3 Harring. 508; 7
Watts & Serg. 180; 10 Watts, 172; 6 Watts & Serg. 213; 5 Shep.
349; 5 Smed. & Marsh. 564; 1 Bouv. Inst. n. 866.
NEW TRIAL, practice, A reexamination of an issue in fact,
before a court and jury, which had been tried, at least once,
before the same court and a jury.
2. The origin of the practice of granting new trials is
concealed in the night of time.
3. Formerly new trials could be obtained only with the greatest
difficulties, but by the modern practice, they are liberally
granted in furtherance of justice.
4. The reasons for granting new trials are numerous, and may be
classed as follows; namely:
1. Matters which arose before and in the course of trial. These
are, 1st. Want of due notice. Justice requires that the defendant
should have sufficient notice of the time and place of trial;
and the want of it, unless it has been waived by an appearance,
and making defence, will, in general, be sufficient to entitle
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the defendant to a new trial. Bull., N. P. 327; 3 Price's Ex. R.
72; 3 Dougl. 402; 1 Wend. R. 22. But the insufficiency of the
notice must have been calculated reasonably to mislead the
defendant. 7 T. R. 59. 2d, The irregular impanneling of the jury;
for example, if a person not duly qualified to serve be sworn: 4
T. R. 473; or if a juror not regularly summoned and returned
personate another. Willes, 484; S. C. Barnes, 453. In
Pennsylvania, by statutory, provision, going on to trial will
cure the defect, both in civil and criminal cases. 3d. The
admission of illegal testimony. 3 Cowen's Rep. 712 2 Hall's R.
40. 4 Chit. Pr. 33 4th. The rejection of legal testimony. 6 Mod.
242; 3 B. & C. 494; 1 Bingh. R. 38; 1 John. IR,. 508; 7 Wend.
R. 371; 3 Mass. 124; 6 Mass. R. 391. But a new trial will not
be granted for the rejection of a witness on the supposed ground
of incompetency, when another witness establishes the same fact,
and it is not disputed by the other side. 2 East, R. 451; and
see other exceptions in 1 John. R. 509; 4 Ohio Rep. 49; 1
Charlt. B. 227; 2 John. Cas. 318. 5th. The misdirection of the
judge. Vide article Misdirection, and 4 Chit. Pr. 38.
5. - 2. The acts of the prevailing party, his agents or
counsel. For example, when papers, not previously submitted, are
surreptitiously handed to the jury, being material on the point
in issue. Co. Litt. 227; 1 Sid. 235; 4 W. C. C. R. 149. Or if
the party, or one on his behalf, directly approach a juror on the
subject of the trial. Cro. Eliz. 189; 1 Serg. & Rawle, 169; 7
Serg. & Rawle, 358; 4 Binn. 150; 13 Mass. R. 218; 2 Bay R. 94;
6 Greenl. R. 140. But if the other party is aware of such
attempts, and he neglects to correct them when in his power, this
will not be a sufficient reason for granting a new trial. 11 Mod.
118. When indirect measures have been resorted to, to prejudice
the jury; 3 Brod. & Bing. 272; 7 Moore's R. 87; 7 East, R.
108; or tricks practiced; 11 Mod. 141; or disingenuous
attempts to suppress or stifle evidence, or thwart the
proceedings, or to obtain an unconscientious advantage, or to
mislead the court and jury, they will be defeated by granting a
new trial. Grah. N. T. 56; 4 Chit. Pr. 59.
6. - 3. The misconduct of the jury, as if they acted in
disregard of their oaths; Cro. Eliz. 778; drinking spirituous
liquors, after being charged with the cause; 4 Cowen's R. 26; 7
Cowen's R. 562; or resorting to artifice to get rid of their
confinement; 5 Cowen's R. 283; and such like causes will avoid
a verdict. Bunb. 51; Barnes, 438; 1 Str. 462; 2 Bl. R. 1299;
Comb. 357; 4 Chit. Pr. 48 to 55. See, t's to the nature of the
evidence to be received to prove misconduct of the jury, 1 T. R.
11; 4 Binn. R. 150; 7 S. & R. 458.
7. - 4. Cases in which the verdict is improper, because it is
either void, against law, against evidence, or the damages are
excessive. 1. When the verdict is contrary to the record; 2
Roll. 691; 2 Co. 4; or it finds a matter entirely out of the
issue; Hob. 53; or finds only a part of the issue; Co. Litt.
227; or when it is uncertain; 8 Co. 65; a new trial will be
granted. 2. When the verdict is. clearly against law, and
injustice has been done, it will be set aside. Grah. N. T. 341,
356. 3. And so will a verdict be set aside if given clearly
Bouvier's Law Dictionary : N1 : Page 41 of 88
against evidence, and the presiding judge is dissatisfied. Grah.
N. T. 368. 4. When the damages are excessive, and appear to have
been given in consequence of prejudice, rather, than as an act of
deliberate judgment. Grah. N. T. 410; 4 Chit. Pr. 63; 1 M. & G.
222; 39 E. C. L. R. 422.
8. - 5. Cases in which the party was deprived of his evidence
by accident or because he was not aware of it. The non-attendance
of witnesses, their mistakes, their interests, their infirmities,
their bias, their partial or perverted views of facts, their
veracity, their turpitude, pass in review, and in proportion as
they bear upon the merits avoid or confirm the verdict. The
absence of a material piece of testimony or the non-attendance of
witnesses, contrary to reasonable expectation, and reasonably
accounted for, will induce the court to set aside the verdict,
and grant a new trial; 6 Mod. 22 11 Mod. 1; 2 Chit. Rep. 195;
14 John. R. 112; 2 John. Cas. 318; 2 Murph, R. 384; as, if the
witness absent himself with out the party's knowledge after the
cause is called on,; 14 John. R. 112; or is suddenly taken
sick; 1 McClell. R. 179 and the like. The court will also grant
a new trial, when the losing party has discovered material
evidence since the trial, which would probably produce, a
different result; this evidence must be accompanied by proof of
previous diligence to procure it. To succeed, the applicant must
show four things: 1. The names of the new witnesses discovered.
2. That the applicant has been diligent in preparing, his cage
for trial. 3. That the new facts were discovered after the trial
and will be important. 4. That the evidence discovered will tend
to prove fact