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


         Bouvier's Law Dictionary : N1 : Page 10 of 88


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


         Bouvier's Law Dictionary : N1 : Page 11 of 88


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,


         Bouvier's Law Dictionary : N1 : Page 13 of 88


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.


         Bouvier's Law Dictionary : N1 : Page 14 of 88


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,


         Bouvier's Law Dictionary : N1 : Page 15 of 88


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.


         Bouvier's Law Dictionary : N1 : Page 17 of 88


   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.


         Bouvier's Law Dictionary : N1 : Page 26 of 88


  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


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against evidence,  and the presiding judge is dissatisfied. Grah.
N. T.  368. 4. When the damages are excessive, and appear to have
been given in consequence of prejudice, rather, than as an act of
deliberate judgment. Grah. N. T. 410;  4 Chit. Pr. 63;  1 M. & G.
222;  39 E. C. L. R. 422.

   8. -  5. Cases in which the party was deprived of his evidence
by accident or because he was not aware of it. The non-attendance
of witnesses, their mistakes, their interests, their infirmities,
their bias,  their partial  or perverted  views of  facts,  their
veracity, their  turpitude, pass  in review, and in proportion as
they bear  upon the  merits avoid  or confirm  the  verdict.  The
absence of a material piece of testimony or the non-attendance of
witnesses, contrary  to reasonable  expectation,  and  reasonably
accounted for,  will induce  the court  to set aside the verdict,
and grant  a new  trial;  6 Mod. 22 11 Mod. 1;  2 Chit. Rep. 195;
14 John. R. 112;  2 John. Cas. 318;  2 Murph, R. 384;  as, if the
witness absent  himself with  out the party's knowledge after the
cause is  called on,;   14  John. R.  112;   or is suddenly taken
sick;   1 McClell. R. 179 and the like. The court will also grant
a new  trial, when  the  losing  party  has  discovered  material
evidence  since  the  trial,  which  would  probably  produce,  a
different result;   this evidence must be accompanied by proof of
previous diligence  to procure it. To succeed, the applicant must
show four  things:  1. The names of the new witnesses discovered.
2. That  the applicant  has been  diligent in preparing, his cage
for trial.  3. That the new facts were discovered after the trial
and will  be important. 4. That the evidence discovered will tend
to prove facts which were not directly in, issue on the trial, or
were not  then known and investigated by proof. 8 J. J. Marsh. R.
521;   2 J.  J. Marsh. R. 52;  5 Serg. & Rawle, 41;  6 Greenl. R.
479;   4 Ohio  Rep. 5;  2 Caines' R. 155;  2 W. C. C. R. 411;  16
Mart. Louis.  Rep. 419;   2  Aiken, Rep,  407;   1 Haist. R. 434;
Grah. N. T. ch. 13.

 9.  New trials  may be  granted in  criminal as well as in civil
cases, when  the defendant  is convicted,  even  of  the  highest
offences. 3  Dall. R. 515;  1 Bay, R. 372;  7 Wend. 417;  5 Wend.
39. But  when the defendant is acquitted, the humane influence of
the law,  in cases  of felony,  mingling justice  with mercy,  in
favorem vitae  et libertatis,  does not  permit a  new trial.  In
cases of misdemeanor, after conviction a new trial may be granted
in order  to fulfil  the purpose  of substantial  justice;   yet,
there are  no instances  of new trials after acquittal, unless in
cases where  the defendant  has procured  his acquittal by unfair
practices. 1  Chit.  Cr.  Law,  654;    4  Chit.  Pr.  80.  Vide,
generally, 21  Vin. Ab.  474 to 493;  3 Chit. Bl. Co 387, n.;  18
E. C.  L. R.  74, 334;   Bac.  Ab. Trial,  L;   1 Sell.  Pr. 482;
Tidd's Pr.  934, 939;   Graham  on New  Trials 3  Chit.  Pr.  47;
Dane's Ab.  h. t.;   Com.  Dig. Pleader,  IR.  17;    4  Chitty's
Practice, part  7, ch.  3. The  rules laid  down to authorize the
granting of new trials in Louisiana, will be found in the Code of
Practice, art. 557 to 563.

 NEW  WORK. In  Louisiana, by a new work is understood every sort
of edifice or  other work, which is newly commenced on any ground
whatever.


         Bouvier's Law Dictionary : N1 : Page 42 of 88


   2. When  the ancient form of the work is changed, either by an
addition being  made to  it, or  by some part of the ancient work
being taken  away, it is styled also a new work. Civ. Code of Lo.
852;   Puff. b. 8 , c. 5, SS 3;  Nov. Rec. L. 1, tit. 32;  Asso y
Manuel, b. 2, tit. 6, p. 144.

   NEW YORK. The name of one of the original states of the United
States of  America. ln  its colonial  condition  this  state  was
governed from  the period of the revolution of 1688, by governors
appointed by  the crown assisted by a council, which received its
appointments also  from  the  parental  government,  and  by  the
representatives of the people. 1 Story, Const. B. 1, ch. 10.

   2. The  present constitution  of the  state was  adopted by  a
convention of the people, at Albany, on the ninth day of October,
1846, and  went into  force from  and including  the first day of
January, 1847. The powers of the government are distributed among
three classes of magistrates, the legislative, the executive, and
the judicial;

   3. -  §1. The  legislative power  is vested  in a  senate  and
assembly.  By   the  second   article,  section   first,  of  the
constitution,  the   qualifications  of  the  electors  are  thus
described, namely::  Every male citizen of the age of twenty- one
years, who  shall have  been a  citizen  for  ten  days,  and  an
inhabitant of  this state  one year next, preceding any election,
and for  the last  four months  a resident of the county where he
may offer bis vote, shall be entitled to vote at such election in
the election  district of  which  he  shall  at  the  time  be  a
resident, and  not elsewhere,  for all  officers that  now are or
hereafter may  be elective by the people;  but such citizen shall
have been for thirty days next preceding the election, a resident
of the  district from  which the officer is to be chosen for whom
he offers  his vote.  But no  man of  color, unless he shall have
been for  three years  a citizen  of this state, and for one year
next preceding  any election shall have been seised and possessed
of a  freehold estate  of the  value of  two  hundred  and  fifty
dollars, over  and above  all  debts  and  incumbrances,  charged
thereon, and  shall have  been actually  rated  and  paid  a  tax
thereon, shall  be entitled  to vote  at such  election.  And  no
person of  color shall  be subject  to direct  taxation unless he
shall be seised and possessed of such real estate as aforesaid.

   4. The  third article provides as follows Sect. 6. The members
of the  legislature sliall  receive for their services, a sum not
exceeding tbree  dollars a  day, from  the  commencement  of  the
session;   but such  pay shall not exceed in the aggregate, three
hundred dollars for per them allowance, except in proceedings for
impeachment. The  limitation as  to  the  aggregate  compensation
shall not  take effect  until the year one thousand eight hundred
and forty  -  eight.  When  convened  in  extra  session  by  the
governor, they  shall receive  three dollars per day. They sliall
also receive the sum of one dollar for every ten miles they shall
travel, in  going to and returning from their place of meeting on
the most  usual route.  The speaker  of the  assembly  shall,  in
virtue of his office, receive an additional compensation equal to
one-third of his per them allowance as a member.


         Bouvier's Law Dictionary : N1 : Page 43 of 88


   Sect. 7.  No member of the legislature shall receive any civil
appointment within  this state,  or to  the senate  of the United
States, from  the governor,  the governor and senate, or from the
legislature, during  the  term  for  which  he  shall  have  been
elected;   and all such appointments, and all votes given for any
such member,  for any  such office or appointment, shall be void.
Sect. 8.  No person  being a  member of  congress, or holding any
judicial or military office under the United States, shall hold a
seat in  the legislature.  And if  any person  shall,  after  his
election as  a member of the legislature, be elected to congress,
or  appointed  to  any  office,  civil  or  military,  under  the
government of  the United  States, his  acceptance thereof  shall
vacate his seat.

   Sect. 9.  The elections  of senators  and members of assembly,
pursuant to the provisions of this constitution, shall be held on
the Tuesday  succeeding the  first  Monday  of  November,  unless
otherwise directed by the legislature.

  Sect. 10. A majority of each house shall constitute a quorum to
do business.  Each house  sliall determine  the rules  of its own
proceedings, and  be the  judge of  the  elections,  returns  and
qualifications of its own members, shall choose its own officers,
and the  senate shall  choose a  temporary  president,  when  the
lieutenant. governor  shall not attend as president, or shall act
as governor.

   Sect. 11.  Each house shall keep a journal of its proceedings,
and publish  the same,  except such parts as may require secrecy.
The doors  of each  house shall  be kept  open, except  when  the
public  welfare  shall  require  secrecy.  Neither  house  shall,
without the consent of the other, adjourn for more than two days.

   Sect. 12.  For any  speech or  debate in  either house of the,
legislature, the  members shall  not be  questioned in  any other
place.

   5. - 1. The senate consists of thirty - two members, chosen by
the electors.  The state  is divided into thirty - two districts,
and each district elects one senator.

  6. Senators are chosen for two years.

 20  7. -  2. The  assembly shall  consist  of  one  hundred  and
twenty-eight members. Art. 3, s. 2.

   8. The  state shall  be divided  into  assembly  districts  as
provided by  the fifth  section  of  the  third  article  of  the
constitution as follows:

 The  members of  assembly shall be apportioned among the several
counties of  this state, by the legislature, as nearly as may be,
according  to   the  number   of  their  respective  inhabitants,
excluding aliens,  and persons  of color  not taxed, and shall be
chosen by single districts.


         Bouvier's Law Dictionary : N1 : Page 44 of 88


   "The several  boards of  supervisors in  such counties of this
state, as  are now  entitled to more than one member of assembly,
shall assemble  on the  first Tuesday of January next, and divide
their respective  counties into  assembly districts  equal to the
number of  members of  assembly to  which such  counties are  now
severally entitled  by law,  and shall  cause to  be filed in the
offices of  the secretary  of  state  and  the  clerks  of  their
respective counties,  a description  of such  assembly districts,
specifying  the  number  of  each  district  and  the  population
thereof, according  to the  last preceding  state enumeration, as
near as can be ascertained. Each assembly district shall contain,
as nearly  as may  be, an  equal number of inbabitants, excluding
aliens and  persons of  color not  taxed, and  shall  consist  of
convenient. and  contiguous territory;   but  no  town  shall  be
divided in the formation of assembly districts.

   "The legislature,  at its  first session  after the  return of
every enumeration,  shall re-apportion  the members  of  assembly
among the  several counties  of this  state, in manner aforesaid,
and the  boards of  supervisors  in  such  counties  as,  may  be
entitled, under  such reapportionment,  to more  than one member,
shall assemble  at such  time  as  the  legislature  making  such
reapportionment shall  prescribe, and  divide such  counties into
assembly  districts,  in  the  manner  herein  directed  and  the
apportionment and districts so to be made, shall remain unaltered
until another  enumeration shall be taken under the provisions of
the preceding section.

   "Every county heretofore established and separately organized,
except the  county of  Hamilton, shall  always be entitled to one
member of  the assembly,  and no  new county  shall be  hereafter
erected, unless its population shall entitle it to a member.

  " The county of Hamilton shall elect with the county of Fulton,
until the  population of  the county of Hamilton shall, according
to the ratio, be entitled to a member."

 9. The members of assembly are elected annually.

 10.  - §2.  The fourth  article vests  the  executive  power  as
follows:

 "  Sect. 1.  The executive  power shall be vested in a governor,
who shall  hold his  office for two years;  a lieutenant governor
shall be chosen at the same time, and for the same term.

 "  Sect. 2.  No person  except a  citizen of  the United States,
shall be  eligible to  the office  of governor;   nor  shall  any
person be  eligible to  that office,  who shall not have attained
the age  of thirty  years, and who shall not have been five years
next preceding his election, a resident within this state.

 " Sect. 3. The governor and lieutenant governor shall be elected
at the  times and places of choosing members of the assembly. The
persons respectively  having the  highest  number  of  votes  for
governor and  lieutenant governor, shall be elected;  but in case


         Bouvier's Law Dictionary : N1 : Page 45 of 88


two or  more shall  have an equal and the highest number of votes
for governor,  or for  lieutenant governor, the two houses of the
legislature at  its next  annual session,  shall,  forthwith,  by
joint ballot,  choose one  of the said persons so having an equal
and the  highest number  of  votes  for  governor  or  lieutenaut
governor.

   " Sect.  4. The  governor shall  be commander-in-chief  of the
military and  naval forces  of the  state. He shall have power to
convene the  legislature (or  the senate  only) on  extraordinary
occasions. He  shall communicate by message to the legislature at
every session,  the condition  of the  state, and  recommend such
matters to  them as  be shall  judge expedient. He shall transact
all necessary business with the officers of government, civil and
military. He shall expedite all such measures, as may be resolved
upon by  the legislature,  and shall  take care that the laws are
faithfully executed.  He shall,  at stated times, receive for his
services, a  compensation to  be established  by law, which shall
neither be increased nor diminished after his election and during
his continuance in office.

 " Sect. 5. The governor shall have the power to grant reprieves,
commutations and  pardons  after  conviction,  for  all  offences
except treason  and cases  of impeachment,  upon such conditions,
and with  such restrictions  and limitations,  as  he  may  think
proper, subject  to such  regulation as  may be  provided by. law
relative to  the maniaer of applying for pardons. Upon conviction
for treason,  he shall have power to suspend the execution of the
sentence, until  the Oft  -    -  e  shall  be  reported  to  the
legislature at  its next  meeting,  when  the  legislature  shall
either pardon,  or commute  the sentence, direct the execution of
the sentence,  or grant  a further  reprieve. He  sliall annually
communicate to the legislature each case of reprieve, commutation
or pardon  granted stating  the name of the convict, the crime of
which he  was convicted,  the sentence and its date, and the date
of the commutation, pardon or reprieve.

   "Sect. 6.  In case  of the impeachment of the governor, of his
removal from office, death, inability to discharge the powers and
duties of the said office, resignation or absence from the state,
the powers  and duties  of the  office  shall  devolve  upon  the
lieutenant governor  for the  residue of  the term,  or until the
disability shall  cease. But  when the  governor shall,  with the
consent of  the legislature,  be out of the state in time of war,
at the  head of  a military  force  thereof,  he  shall  continue
commander-in-chief of all the military force of the state.

 "Sect.  7.  The  lieutenant  governor  shall  possess  the  same
qualifications of  eligibility for  office as  the  governor.  He
shall be  president of  the senate, but shall have only a casting
vote therein.  If during a vacancy of the office of governor, the
lieutenant governor  shall be  impeached, displaced, resign, die,
or become incapable of performing the duties of his office, or be
absent from  the state,  the president of the senate shall act as
governor, until  the vacancy  be filled,  or the disability shall
cease.


         Bouvier's Law Dictionary : N1 : Page 46 of 88


   "Sect. 8. The lieutenant governor shall, while acting as such,
receive a  compensation which  shall be  fixed by  law, and which
shall not  be increased  or diminished  during his continuance in
office.

   "Sect. 9.  Every bill  which shall  have passed the senate and
assembly, shall,  before it  becomes a  law, be  presented to the
governor;  if be approve, he shall Sign it;  but if not, he shall
return it  with his  objections to  that bouse  in which it shall
have originated;   who  shall enter  the objections  at large  on
their journal,  and proceed  to  reconsider  it.  If  after  such
reconsideration, two-thirds of the members present shall agree to
pass the bill, it shall be sent, together with the objections, to
the other house, by which it shall likewise be reconsidered:  and
if approved  by two-thirds  of all  the members present, it shall
become a law, notwithstanding the objections of the governor. But
in all  such cases,  the votes of both houses shall be determined
by yeas  and nays,  and the  flames of the members voting for and
against the  bill, shall  be entered on the journal of each house
respectively. If  any bill  shall not be returned by the governor
within ten  days (Sundays  excepted) after  it  shall  have  been
presented to  him, the  same shall be a law, in like manner as if
he  had  signed  it,  unless  the  legislature  shall,  by  their
adjournment, prevent its return;  in which case it shall not be a
law."

   11. -  §3. The sixth article distributes the judicial power as
follows:

   "Sect. 1. The assembly shall have the power of impeachment, by
the vote  of a majority of all the members elected. The court for
the trial  of impeachments, shall be composed of the president of
the senate,  the senators,  or a  major part  of them,  and,  the
judges of the court of appeals, or the major part of them. On the
trial of  an impeachment  against the  governor,  the  lieutenant
governor shall  not act  as a  member of  the court.  No judicial
officer shall  exercise bis  office  after  he  shall  have  been
impeached, until  he shall  have been acquitted. Before the trial
of an  impeachment, the  members of the court shall take, an oath
or affirmation,  truly and  impartially to  try the  impeachment,
according to  evidence;  and no person shall be convicted without
the concurrence  of two-thirds  of the members present. Judgment,
in cases of impeachment, shall not extend further than to removal
from office,  or removal from office and disqualification to hold
and enjoy any office of honor, trust, or profit under this state;
but the  party impeached  shall  be  liable  to  indictment,  and
punishment according to law.

   "Sect. 2. There shall be a court of appeals, composed of eight
judges, of  whom four  shall be  elected by  the electors  of the
state for  eight years,  and four  selected  from  the  class  of
justices of the supreme court, having the shortest time to serve.
Provision shall be made by law, for designating one of the number
elected, as  chief judge,  and for selecting such justices of the
supreme court,  from time  to time,  and for so classifying those
elected, that one shall be elected every second year.


         Bouvier's Law Dictionary : N1 : Page 47 of 88


   "Sect. 3.  There shall  be  a  supreme  court  having  general
jurisdiction in law and equity.

   "Sect. 4.  The state  shall be  divided  into  eight  judicial
districts, of  which the  city of  New York  shall be  one:   the
others to  be bounded  by county  lines. and  to be  compact, and
equal in  population, as  rearly as  may be.  There shall be four
justices of  the supreme court in each district, and as many more
in the  district composed  of the  city of  New York, as may from
time to time be authorized by law, but not to exceed in the whole
such number  in proportion  to its  population, as  shall  be  in
conformity with  the number  of such judges in the residue of the
state in  proportion to  its population. They shall be classified
so that  one of  the justices  of each  district shall  go out of
office at  the end  of every  two years.  After the expiration of
their terms  under such  classification, the term of their office
shall be eight years.

   "Sect. 5.  The legislature shall have the same powers to alter
and regulate  the jurisdiction and proceedings in law and equity,
as they have heretofore possessed.

   "Sect. 6.  Provisions may be made by law for designating, from
time to  time, one  or more  of the  said justices,  who is not a
judge of the court of appeals, to preside at the general terms of
the said  court to be held in the several districts. Any three or
more of  the said  justices, of  whom one of the said justices so
designated shall  always be  one, may  hold:  such general terms.
And any  one or  more of  the justices may hold special terms and
circuit courts, and any one of them may preside in courts of oyer
and terminer in any county.

   "Sect. 7.  The judges  of the court of appeals and justices of
the supreme  court, shall severally receive, at stated times, for
their services,  a compensation  to be  established by law, which
shall not  be increased or diminished during their continuance in
office.

  "Sect. 8. They shall not hold any other office or public trust.
All votes  for either  of them,  for any elective office, (except
that of  justice of  the supreme  court, or judge of the court of
appeals,) given  by the legislature or the people, shall be void.
They shall  not exercise  any  power  of  appointment  to  public
office. Any  male citizen of the age of twenty-one years, of good
moral character,  and who  possesses the requisite qualifications
of learning  and ability,  shall  be  entitled  to  admission  to
practice in all the courts of this state.

   "Sect. 9.  The classification  of the  justices of the supreme
court;   the times and place of holding the terms of the court of
appeals, and  of the  general and  special terms  of the  supreme
court within  the several  districts, and  the circuit courts and
courts of oyer and terminer within the several counties, shall be
provided for by law.

  "Sect. 10. The testimony in equity cases shall be taken in like
manner as in cases at law.


         Bouvier's Law Dictionary : N1 : Page 48 of 88


   "Sect. 11.  Justices of  the supreme  court and  judges of the
court of appeals, way be removed by concurrent resolution of both
houses of  the legislature,  if two-thirds  of  all  the  members
elected to  the assembly,  and a  majority  of  all  the  members
elected to  the senate,  concur therein.  All judicial  officers,
except those  mentioned in  this section,  and except justices of
the peace,  and judges  and justices  of inferior  courts not  of
record, may  be removed  by the  senate, on the recommendation of
the governor:   but  no removal  shall be  made by virtue of this
section, unless the cause thereof be entered on the journals, nor
unless the  party complained  of, shall  have been  served with a
copy of  the  complaint  against  him,  and  shall  have  had  an
opportunity of  being heard  in his  defence. On  the question of
removal, the ayes and noes shall be entered on the journals.

   "Sect. 12. The judges of the court of appeals shall be elected
by the  electors of  the state,  ana the  justices of the supreme
court by  the electors of the several judicial districts, at such
times as may be proscribed by law.

   "Sect. 13.  In case  the office  of any  judge of the court of
appeals, or  justice of  the supreme  court, shall becoine vacant
before the  expiration of  the regular  term  for  which  he  was
elected,  the  vacancy  may  be  filled  by  appointment  by  the
governor, until it shall be supplied at the next general election
of judges,  when it  shall be filled by election, for the residue
of the unexpired term.

   Sect. 14.  There shall  be elected  in each of the counties of
this state,  except the  city and  county of New York, one county
judge, who  shall hold  his office  for four years. He shall hold
the county  court, and  perform  the  duties  of  the  office  of
surrogate. The county court shall have such jurisdiction in cases
arising in  justices'  courts,  and  in  special  cases,  as  the
legislature may  prescribe, but  shall  have  no  original  civil
jurisdiction, except in such special cases.

   "The county  judge, with  two justices  of the  peace,  to  be
designated according  to law,  may hold  courts of sessions, with
such criminal  jurisdiction as  the legislature  shall prescribe,
and perform such other duties as may be required by law.

   "The county  judge shall receive an annual salary, to be fixed
by the  board of  supervisors, which  sliall be neither increased
nor diminished  during his continuance in office. The justices of
the peace for services in courts of sessions, shall be paid a per
diem allowance out of the county treasury.

   "In counties having a population exceeding forty thousand, the
legislature may provide for the election of a separate officer to
perform the duties of the office of surrogate.

   "The legislature  may confer  equity jurisdiction  in  special
cases upon the county judge.

  "Inferior local courts, of civil and criminal jurisdiction, may


         Bouvier's Law Dictionary : N1 : Page 49 of 88


be established  by the  legislature in  cities;  and such courts,
except for  the cities  of New  York and  Buffalo, shall  have an
uniform organization and jurisdiction in such cities.

   "Sect. 15. The legislature may, on application of the board of
supervisors, provide  for the  election of local officers, not to
exceed two  in any  county, to  discharge the  duties  of  county
judge, and  of surrogate  in cases  of their  inability, or  of a
vacancy, and  to exercise  such other  powers in special cases as
may be provided by law.

    "Sect.  16.  The  legislature  may  reorganize  the  judicial
districts  at  the  first  session  after  the  return  of  every
enumeration under  this constitution,  in the manner provided for
in the fourth section of this article, and at no other time;  and
they may,  at such  session, increase  or diminish  the number of
districts, but  such increase  or diminution  shall not,  be more
than one  district at any one time. Each district shall have four
justices of  the  supreme  court;    but  no  diminution  of  the
districts shall have the effect to remove a judge from office.

   "Sect. 17.  The electors  of the several towns shall, at their
annual town  meeting, and  in such  manner as the legislature may
direct, elect  justices of  the peace, whose term of office shall
be four years. In case of an election to fill a vacancy occurring
before the  expiration of  a full  term, they  shall hold for the
residue of  the unexpired  term. Their  number and classification
may be  regulated by  law. Justices  of the  peace and  judges or
justices of inferior courts, not of record, and their clerks, may
be removed,  (after due  notice and an opportunity of being beard
in their  defence) by such county, city or state courts as may be
prescribed by  law, for  causes to  be assigned  in the  order of
removal.

   "Sect. 18.  All judicial  officers of cities and villages, and
all such  judicial officers  is may  be created  therein by  law,
shall be  elected at  such  times  and  in  such  manner  as  the
legislature may direct.

   "Sect. 19.  The clerks  of the  several counties of this state
shall be clerks of the supreme court, with such powers and duties
as shall  be prescribed by law. A clerk for the court of appeals,
to be  ex officio  clerk of  the supreme  court, and  to keep his
office at the seat of government, shall be chosen by the electors
of the  state;  he shall hold his office for three years, and bis
compensation shall  be fixed  by law  and paid  out of the public
treasury.

   "Sec. 20.  No judicial  officer, except justices of the peace,
shall receive to his own use any fees or perquisites of office.

  "Sect. 21. The legislature may authorize the judgments, decrees
and decisions  of any  local inferior court of record of original
civil jurisdiction,  established removed for review directly into
the court of appeals.

   "Sect. 22.  The  legislature  shall  provide  for  the  speedy


         Bouvier's Law Dictionary : N1 : Page 50 of 88


publication of  all statute  laws, and of such judicial decisions
as it  may deem  expedient. And  all laws  and judicial decisions
shall be free for publication by any person.

   "Sect. 23.  Tribunals of conciliation may be established, with
such powers  and duties  as may  be prescribed  by law;  but such
tribunals shall have no power to render judgment to be obligatory
on the  parties, except  they voluntarily submit their matters in
difference and agree to abide the judgment, or assent thereto, in
the presence  of  such  tribunal,  in  such  cases  as  shall  be
prescribed by law."

   "Sect. 25.  The legislature,  at its  first session  after the
adoption of this constitution, shall provide for the organization
of the  court of appeals, and for transferring to it the business
pending in  the court  for the  correction of errors, and for the
allowance of  writs of error and appeals to the court of appeals,
from the  judgments and  decrees of the present court of chancery
and supreme  court, and of the courts that may be organized under
this constitution."

     12.  The  sixth  article,  section  24,  provides  that  the
legislature, at  its first  session after  the adoption  of  this
constitution,  shall   provide  for   the  appointment  of  three
commissioners, whose duty it shall be to revise, reform, simplify
and  abridge   the  rules  and  practice,  pleadings,  forms  and
proceedings of  the courts of record of this state, and to report
thereon  to  the  legislature,  subject  to  their  adoption  and
modification from time to time.

     13.  In   pursuance  of  the  provisions  of  this  section,
commissioners were appointed to revise the laws on the subject of
the practice,  pleadings and  proceedings of  the courts  of this
state, who  made a  report to  the legislature. This report, with
some alterations,  was enacted  into a  law on the 12th of April,
1848, ch.  379, by  which the  forms of action are abolished, and
the whole  subject is  extremely simplified.  How it will work in
practice, time will make manifest.

   NEWLY DISCOVERED EVIDENCE. That evidence which, after diligent
search for  it, was  not discovered  until after  the trial  of a
cause.

   2. In  general a  new trial will be granted on the ground that
new, important,  and material  evidence has been discovered since
the trial  of the cause. 2 Wash. C. C. 411. But this rule must be
received with the following qualifications:  1. When the evidence
is merely  cumulative, it  is not  sufficient ground  for  a  new
trial. 1  Sumn. 451;  6 Pick. 114;  4 Halst. 228;  2 Caines, 129;
4 Wend.  579;  1 A. K. Marsh. 151;  8 John. 84;  15 John. 210;  5
Ham. 375  10 Pick.  16;   7 W. & S. 415;  11 Ohio, 147;  1 Scamm.
490;   1 Green,  177;  5 Pike, 403;  1 Ashm. 141;  2 Ashm. 69;  3
Vei -  in. 72;   3  A. K. Marsh. 104. 2. When the evidence is not
material. 5  S. &  R. 41;   1  P. A.  Browne, Appx.  71;  1 A. K.
Marsh. 151.  3. The  evidence must be discovered after the trial,
for if  it be  known before  the verdict has been rendered, it is
not newly  discovered. 2 Sumn. 19;  7 Cowen, 369;  2 A. K. Marsh.


         Bouvier's Law Dictionary : N1 : Page 51 of 88


42. 4. The evidence must be such, that the party could not by due
diligence have discovered it before trial. 2 Binn. 582;  1 Misso.
49;   5 Halst. 250;  1 South. 338;  7 Halst. 225;  1 Blackf. 367;
11 Con.  15;   1 Bay, 263, 491;  4 Yeates, 446;  2 Fairf. 218;  7
Metc. 478;   Dudl. G. Rep. 85;  9 Shepl. 246;  14 Verm. 414, 558;
2 Ashm.  41, 69;  6 Miss. 600 2 Pike, 133 7 Yerg. 432;  6 Blackf.
496;  1 Harr. 410.

   NEWSPAPERS. Papers for conveying news, printed and distributed
periodically.

   2. To encourage their circulation the act of congress of March
3, 1825, 3 Story's L. U. S. 1994, enacts, §29. That every printer
of newspapers  may rend one paper to each and every other printer
of newspapers  within the  United States,  free of postage, under
such regulations as the postmaster general shall provide.

   3. -  §30. That  all newspapers  conveyed in the mail shall be
under cover, open at one end, and charged with the postage of one
cent each,  for any distance not more than one hundred miles, and
one and a half cents for any greater distance:  Provided That the
postage of  a single newspaper, from any one place to another, in
the same  state, shall  not exceed  one cent, and the  postmaster
general shall  require those  who receive  newspapers by post, to
pay always  the amount  of one quarter's postage in advance;  and
should the  publisher of  any newspaper, after being three mouths
previously notified  that his  paper is  not  taken  out  of  the
office, to  which it  is sent  for delivery,  continue to forward
such paper in the mail, the postmaster to whose office such paper
is sent,  may dispose  of the  same for  the postage,  unless the
publisher shall  pay it. If any person employed in any department
of the  post office, shall improperly detain, delay, embezzle, or
destroy any newspaper, or shall permit any other person to do the
like, or  shall open  or permit  any other  to open, any mail, or
packet of  newspapers, not  directed to  the office  where he  is
employed, such  offender shall,  on conviction thereof, forfeit a
sum, not  exceeding fifty dollars, for every such offence. And if
any other  person shall open any mail or packet of newspapers, or
shall embezzle  or destroy the same, not - being directed to such
person, or not being authorized to receive or open the same, such
offender  shall,  on  the  conviction  thereof,  pay  a  sum  not
exceeding twenty  dollars for  every such  offence.  And  if  any
person shall  take,  or  steal,  any  packet,  bag,  or  mail  of
newspapers, from,  or out  of any post office, or from any person
having custody  thereof, such  person shall,  on  conviction,  be
imprisoned, not  exceeding three mouths, for every, such offence,
to be  kept at hard labor during the period of such imprisonment.
If any  person shall enclose or conceal a letter, or other thing,
or any  memorandum in  writing,  in  a  newspaper,  pamphlet,  or
magazine,  or   in  any  package  of  newspapers,  pamphlets,  or
magazines, or  make any  writing or  memorandum thereon, which he
shall have  delivered into  any post office, or to any persou for
that purpose, in order that the same may be carried by post, free
of letter  postage, he  shall forfeit the sum of five dollars for
every  such   offence;    and  the  letter,  newspaper,  package,
memorandum, or  other thing, shall not be delivered to the person
to whom it is directed, until the amount of single letter postage


         Bouvier's Law Dictionary : N1 : Page 52 of 88


is paid  for each  article of  which the  package is composed. No
newspapers shall  be received  by the postmasters, to be conveyed
by post,  unless they  are sufficiently  dried  and  enclosed  in
proper wrappers,  on which, besides the direction, shall be noted
the number  of papers which are enclosed for subscribers, and the
number for  printers:   Provided, That  the number  need  hot  be
endorsed, if the publisher shall agree to furnish the postmaster,
at the close of each quarter, a certified statement of the number
of  papers  sent  in  the  mail,  chargeable  with  postage.  The
postmaster general,  in any  contract he  may enter  into for the
conveyance of  the mail,  may authorize the person with whom such
contract is  to be  made, to  carry  newspapers,  magazines,  and
pamphlets, other than those conveyed in the mail:  Provided, That
no preference  shall be  given to  the publisher of one newspaper
over that  of another,  in the  same  place.  When  the  mode  of
conveyance, and  size  of  the  mail,  will  admit  of  it,  such
magazines and  pamphlets as  are published  periodically, may  be
transported in  the mail, to subscribers, at one and a half cents
a sheet,  for any  distance riot exceeding one hundred miles, and
two and a half cents for any greater distance. And such magazines
and pamphlets  as are  not published periodically, if sent in the
mail, shall  be charged  with a  postage of  four cents  on  each
sheet, for  any distance not exceeding one hundred miles, and six
cents for  any greater  distance. By the act of March 3, 1851, c.
20, s.  2, it is enacted, That all newspapers not exceeding three
ounces in  weight sent  from the  office of publication to actual
and bona  fide subscribers,  shall be  charged  with  postage  is
follows, to  wit weekly  only, within the county where published,
free;   for any  distance not  exceeding fifty  miles out  of the
county, five  cents  per  quarter;    exceeding  fifty,  and  not
exceeding three  hundred miles, ten cents per quarter;  exceeding
three bundred and not exceeding one thousand miles, fifteen cents
per quarter;   exceeding  one  thousand  and  not  exceeding  two
thousand miles,  twenty cents  per quarter exceeding two thousand
and not  exceeding four  thousand, twenty-five cents per quarter;
exceeding  four   thousand  miles,   thirty  cents  per  quarter;
newspapers published  monthly,  sent  to  actual  and  bona  fide
subscribers,  one-fourth   the  foregoing   rates;      published
semi-monthly, one-half  the foregoing rates;  semi-weekly, double
those rates;   tri-weekly,  treble those rates;  and oftener than
tri-weekly, five  times those  rates;   Provided, That newspapers
not  containing   over  three   hundred  square   inches  may  be
transmitted at  one-fourth the  above rates.  See,  as  to  other
newspapers, Postage.

   NEXT  FRIEND.  One  who,  without  being  regularly  appointed
guardian, acts  for the  benefit of  an infant, married woman, or
other person, not sui juris. Vide Amy;  Prochein Amy.

   NEXT OF  KIN. This  term is used to signify the relations of a
party who has died intestate.

  2. In general no one comes within this term who is not included
in the  provisions of  the statutes  of distribution. 3 Atk. 422,
761;  1 Ves. sen. 84. A wife cannot, in general, claim as next of
kin of her husband, nor a husband as next of kin of his wife. But
when there  are circumstances  in a will which induce a belief of


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an intention  to include  them under  this term,  they will be so
considered, though  in the  ordinary sense  of the word, they are
not. Hov.  Fr. 288,  9;  1 My. & Keen, 82. Vide Branch;  Kindred;
Line.

  NEXUM, Rom. civ. law. Viewed as to its object and legal effect,
nexum was either the transfer of the ownership of a thing, or the
transfer of  a thing  to a creditor as a security. Accordingly in
one sense  nexum included  mancipium, in  another sense mancipium
and nexum  are opposed in the same way in which sale and mortgage
or pledge  are opposed.  The formal  part  of  both  transactions
consisted in  a transfer per Des et libram. The person who became
nexus by  the effect  of a  nexum, placed  himself in  a  servile
condition, not  becoming a  slave, his  ingenuitas being  only in
suspense, and  was said nexum inire. The phrases nexi datio, nexi
liberatio, respectively  express the  contracting and the release
from the obligation.

  2. The Roman law, as to the payment of borrowed money, was very
strict. A curious passage of Gellius (xx. 1) gives us the ancient
mode of  legal procedure  in the  case of  debt as  fixed by  the
Twelve Tables.  If the  debtor admitted  the debt,  or  bad  been
condemned in  the amount  of the  debt by  a judex, he had thirty
days allowed  him for  payment. At the expiration of this time he
was liable  to the manus. injectio, and ultimately to be assigned
over to  the creditor  (addictus) by the sentence of the praetor.
The creditor  was required  to keep him for sixty days in chains,
during which  time he  publicly  exposed  the  debtor,  on  three
nundinae, and  proclaimed the  amount of  bis debt.  If no person
released the prisoner by paying the debt, the creditor might sell
him as  a slave  or put  him to  death.  If  there  were  several
debtors, the  letter of the law allowed them to cut the debtor in
pieces, and  take their  share of his body in proportion to their
debt. Gellius  says that there was no instance of a creditor ever
having adopted  this extreme mode of satisfying his debt. But the
creditor might  treat the  debtor, who  was addictus, as a slave,
and compel  him to work out his debt, and the treatment was often
very severe.  In this  passage Gellius does not speak of nexi but
only of  addicti, which  is sometimes  alleged as evidence of the
identity of  nbxus and  addictus, but it proves no such identity.
If a  nexus is  what he  is here  supposed to be, the laws of the
Twelve Tables  could not apply;  for when a man became nexus with
respect to  one creditor,  he could  not become nexus to another;
and if  he became  nexus to  several at  once, in  this case  the
creditors  must  abide  by  their  contract  in  taking  a  joint
security. This  law of the Twelve Tables only applied to the case
of a  debtor being  @igned over by a judicial sentence to several
debtors, and  it provided  for a  settlement of their conflicting
claims. The  precise condition  of a  nexus has,  however, been a
subject of much dinussion among scholars. Smith, Dict. Rom. & Gr.
Antiq. h. v., and vide Mancipitem.

   NIECE, domestic relations:  The daughter of a person's brother
or sister. Amb. 514;  1 Jacob's Ch. R. 207.

  NIEF, old Eng. law. A woman born in vassalage. In Latin she was
called Nativa.


         Bouvier's Law Dictionary : N1 : Page 54 of 88


   NIENT COMPRISE.  Not included.  It is  an exception taken to a
petition, because the thing desired is not contained in that deed
or proceeding wltereoia the petition is founded. Touil. Law Dict.

   NIENT CULPABLE. Nof guilty the name of a plea used to deny any
charge of ao r@al nature, or of a tort.

  NIE'@QT DEDIRE. To say nothing.

   2. These  words are  used to signify that judgment be rendered
ag@ a  party, because he does not deny the cause of action, i. e.
by default.

   3. When a fair and impartial trial cannot be had in the county
where the  venue is  laid, the practice in the English courts is,
on an affidavit of the eirculustances, to change it in transitory
actions;   or in  local actions  they will  give leave to enter a
suggestion on the roll, with a nient dedire, in order to have the
trial in another country. 1 Tidd's Pr. 655, 8th ed.

   NIENT LE FAIT, pleading. The same as non est factum, a plea by
which the  defendant asserts  that the  deed declared upon is not
his deed.

   NIGHT. That  space of  time during  which the sun is below the
horizon of the earth, except, that short space which precedes its
rising and  follows its  setting, during which, by its light, the
countenance of  a man  may be  discerned. I  Hale, P.  C. 550;  3
Inst. 63;   4 Bl. Com. 224;  1 Hawk. P. C. 101;  3 Chit. Cr- Law,
1093;   2 Leach,  710;  Bac. Ab. Burglary, D;  2 East, P. C. 509;
2 Russ. Cr. 32;  Rosc. Cr. Ev. 278;  7 Dane's Ab. 134.

   NIGHT WALKERS. Persons who sleep by day and walk by niggt 5 E.
Ill. c.  14;   that is,  persons  of  suspicious  appearance  and
demeanor, who walk by night.

   2. Watchmen  may undoubtedly  arrest them, and it is said that
private persons  may also  do so.  2 Hawk.  P. C. 120;  but see 3
Taunt. 14,;   Ham.  N. P.  135. Vide 15 Vin. Ab. 655;  Dane's Ab.
Index, h. t.

   NIHIL CAPIAT  PER BREVE, practice. That he take nothing by his
writ. This  is the  judgment against  the plaintiff in an action,
either in  bar or  in abatement. When the plaintiff has commenced
his proceedings by bill, the judgment is nihil capiat per billam.
Co. Litt. 363.

   NIHIL DICIT.  He says  nothing.  It  is  the  failing  of  the
defendant  to  put  in  a  plea  or  answer  to  the  plaintiff's
declaration  by the day  assigned;  and, in this case judgment is
given against the defendant  of course, as he says nothing why it
should not. Vide 15 Vin. Ab. 556;  Dane's Ab. Index, h. t.

   NIHIL HABET.  The name of a return made by a sheriff, marshal,
or other  proper officer,  to a scire facia.9 or other writ, when
he Ims not been able to, serve it on the defendant. 5 Whart. 367.


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  2. Two returns of nihil are in general equivalent to a service.
Yelv. 112;  1 Cowen, 70;  1 Car. Law Regags. 491;  4 Blackf. 188;
2 Binn. 40.

   NIL DEBET,  pleading. The  general  issue  in  debt,6r  simple
contract. It  is in  the following form:  IcAndthesaideD, by E F,
his attorney,  comes and  defends the wrong and injury, when, &c.
and says,  that he  does not  owe the  said sum  of  money  above
demanded, or any part thereof, in manner and form as the said A B
hath above  complained. And  of this  the said  C, D puts himself
upon the  country." When,  in debt  on specially, the deed is the
only iuducernent  to the  action, the general issue is nil debet.
Stephens on Pleading, 174, n.;  Dane's Ab. Index, h. t.

   NIL HABUIT  IN TENEMENTIS,  pleading.  A  plea  by  which  the
defendant, wbo  is sued  by his  landlord in debt for rent uppa-a
lease, but  by deed  indented, by,which  he denies his landlord's
title to  the premises, that he has no interest in the tenements.
2 Lill.  Ab. 214;   12 Vin. Ab. 184;  15 Vin. Ab. 556 Woodf. L. &
T. 330;   Com.  Dig. Pleader,  2 W 48 Co. Litt. 47 b;  Dane's Ab.
Index, h. t. 3 E. C. L. R. 169, n.;  1 Holt's R. 489.

    NISI.  This word  is frequently  used in legal proceedings to
denote that  something has been done, which is to be valid unless
something else  Shall be done within a certain time to defeat it.
For example, an order may be made that if on the day appointed to
show cause,  none be  shown, an  injunction will  be dissolved of
course, on  motion, and  production of an affidavit of service of
the order.  This is  called an order nisi. Ch. Pr. 547. Under the
compulsory arbitration  law of Pennsylvania, on the filing of the
award, judgment  nisi is  to be entered:  which judgment is to be
as valid  as if  it had  been rendered  on the verdict of a jury,
unless an appeal be entered within the time required by the law.

  NISI PRIUS. These words, which signify 'unless before,' are the
name of  a court.  The name  originated as follows:  Formerly, an
action was  triable only  in the court where it was brought. But,
it was  provided by  Magna Charta,  in ease  of the subject, that
assises of  novel disseisin  and mort  d'ancestor (then  the most
usual remedies,)  should thenceforward  instead of being tried at
Westminster, in  the superior  court, be  taken in  their  proper
counties;   and for  this purpose  justices were  to be sent into
every county  once a year, to take these assises there. 1 Reeves,
246;   2  Inst.  422,  3,  4.  These  local  trials  being  found
convenient, were  applied not  only  to  assises,  but  to  other
actions;  for, by the statute of 13 Edw. I. c. 30, it is provided
as the  general course  of proceeding,  that writs  of venire for
summoning  juries  in  the  superior  courts,  shall  be  in  the
following  form.   Praecipimus  tibi  quod  veneri  facias  coram
justiciariis nostris  apud Westm. in Octabis Seti Michaelis, nisi
talis et  talis tali,  die et  loco  ad  partes  illas  venerint,
duodecim, &c.  Thus the  trial was to be had at Westminster, only
in the  event of  its not  previously taking place in the county,
before the  justices appointed  to take  tlie assises. It is this
provision  of   the  statute  of  Nisi  Prius,  enforeed  by  the
subsequent statute  of 14  Ed. III.  c. 16,  which authorizes, in


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England, a  trial before  the justices of assises, in lieu of the
superior court,  and gives  it the name of a trial by nisi prius.
Steph. Pl.  App. xxxiv.;   3 Bl. Com. 58;  1 Reeves, 245, 382;  2
Reeves, 170;  2 Com. Dig. Courts, D b, page 316.

   2. Where  courts bearing this name exist in the United States,
they are instituted by statutory provision. 4 W. & S. 404.

   NISI PRIUS  ROLL, Eng.  practice. A  transcript of a case made
from  the   plea  roll,   and  includes  the  declaration,  plea,
replication, rejoinder,  &c. and  the issue. Eunom. Dial. 2, §28,
29, p.  110, 111.  After the nisi prius roll is returned from the
trial, it assumes the name of posted. (q. v.)

   NO AWARD.  The name  of a  plea to an action or award. 1 Stew.
520;  f Chip. R. 131;  3 Johns. 367. See Nul. Agard.

   NO BILL. These words are frequently used by grand juries. They
are endorsed on a bill of indictment when the grand jury have not
sufficient cause  for finding a true bill. They are equivalent to
Not found, (q. v.) or Ignoramus. (q. v.) 2 Nott & McC. 558.

   NOBILITY. An  order  of  men  in  several  countries  to  whom
privileges are granted at the expense of the rest of the people.

  2. The constitution of the United States provides that no state
shall "  grant any title of nobility;  and no person can become a
citizen ot'  the United  States until he has renounced all titles
of nobility."  The Federalist,  No. 84;  2 Story, Laws U. S. 851.
3. There  is not  in the  constitution  any  general  prohibition
against any  citizen whomsoever,  whether in  public  or  private
life, accepting  any foreign  title of  nobility. An amendment of
the  constitution   in  this  respect  has  been  recommended  by
congress, but  it has not been ratified by a sufficient number of
states to make it a part of the constitution. Rawle on the Const.
120;  Story, Const. §1346.

  NOLLE PROSEQUI, practice. An entry made on the record, by which
the prosecutor  or plaintiff  declares that  he will  proceed  no
further.

   2. A  nolle prosequi  may be entered either in a criminal or a
civil case. In criminal cases, a nolle prosequi may be entered at
any time  before the  finding of  the grand jury, by the attorney
general, and  generally after  a true  bill has  been found;   in
Pennsylvania, in  consequence of  a statutory provision, no nolle
prosequi can  be entered  after a  bill has  been found,  without
leave of  the court,  except in  cases of  assault  and  battery,
fornication and bastardy, on agreement between the parties, or in
prosecutions for  keeping tippling houses. Act of April 29, 1819,
s. 4, 7 Smith's Laws, 227.

   3. A  nolle prosequi  may be  entered as  to  one  ot  several
defendants. 11 East, R. 307.

  4. The effect of a nolle prosequi, when obtained, is to put the
defendant without  day, but  it does not operate as an acquittal;


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for he  may be  afterwards reindicted,  and even  upon  the  same
indictment, fresh  process may  be awarded. 6 Mod. 261;  1 Salk .
59;  Com. Dig. Indictment. K;  2 Mass. R. 172.

  5. In civil cases, a nolle prosequi is considered, not to be of
the nature  of a  retraxit or  release, as was formerly supposed,
but an  agreement only, not to proceed either against some of the
defendants, or as to part of the suit. Vide 1 Saund. 207, note 2,
and the  authorities there  cited.  1  Chit.  PI.  546.  A  nolle
prosequi is now held to be no bar to a future action for the same
cause, except  in those  cases where,  from  the  nature  of  the
action, judgment  and execution against one, is a satisfaction of
all the damages sustained by the plaintiff. 3 T. R. 511;  1 Wils.
98.

  6. In civil cases, a nolle prosequi may be entered as to one of
several counts;   7  Wend. 301;  or to one of several defendants;
1 Pet.  R. 80;   as in the case of a joint contract, where one of
two defendants  pleads infancy,  the plaintiff  may enter a nolle
prosequi, as  to him, and proceed against the other. 1 Pick. 500.
See, generally, 1 Pet. R. 74;  see 2 Rawle, 334;  1 Bibb, 337;  4
Bibb, 887, 454;  3 Cowen, 374;  5 Gill & John. 489;  5 Wend. 224;
20 John. 126;  3 Cowen, 335;  12 Wend. 110;  3 Watts, 460.

   NOMEN COLLECTIVUM.  This expression  is used to signify that a
word in  the singular number is to be understood in the plural in
certain cases.

   2. Misdemeanor,  for example, is a word of this kind, and when
in the singular, may be taken as nomen collectivum, and including
several offences.  2 Barn.  & Adolp.  75. Heir,  in the singular,
sometimes includes all the heirs.

   NOMEN GENERALISSIMUM.  A name  which applies  generally  to  a
number of  things;   as, land,  which is  a general name by which
everything attached to the freehold will pass.

  NOMINAL. Relating to a name.

   2. A  nominal plaintiff  is one  in whose  name an  action  is
brought, for  the use  of another.  In  this  case,  the  nominal
plaintiff has  no control  over the action, nor is he responsible
for costs. 1 Dall. 1 39;  2 Watts, R. 12.

 3.  A nominal  partner is  one, who,  without having  an  actual
interest in the profits of a concern, allows his name to be used,
or agrees that it shall be continued therein, as a partner;  such
nominal partner  is clearly  liable to the creditors of the firm,
as a general partner, although the creditors were ignorant at the
time of  dealing, that  his name was used.. 2 H. Bl. 242, 246;  1
Esp. R. 31;  2 Campb. 302;  16 East, R. 174;  2 B. & C. 411.

 NOMINAL  PLAINTIFF. One  who is  named as  the plaintiff  in  an
action, but  who has no interest in it, having assigned the cause
or right of action to another, for whose use it is brought.

   2. In  general, he  cannot interfere  with the  rights of  his


         Bouvier's Law Dictionary : N1 : Page 58 of 88


assignee, nor will he be permitted to discontinue. the action, or
to meddle  with it.  1 Wheat. R. 233;  1 John. Cas. 411;  3 John.
Cas. 242;   1  Johns. R. 532, n.;  3 Johns. R. 426;  11 Johns. R.
47;   12 John.  R. 237;   1  Phil. Ev.  90;   Cowen's  note  172;
Greenl. Ev. SS 173;  7 Cranch, 152.

   NOMINATE CONTRACT,  civil law.  Nominate contracts  are  those
which have  a particular  name to distinguish them;  as, purchase
and sale,  hiring, partnership,  loan for  use, deposit,  and the
like. Dig.  2, 14,  7, 1. Innominate contracts, (q. v.) are those
which have no particular name. Dig. 19, 4, 1, 2 Code, 4, 64, 3.

   NOMINATION,  This  word  has  several  significations.  1.  An
appointment;   as, I nominate A B, executor of this my last will.
2. A proposition;  the word nominate is used in this sense in the
constitution of  the United  States, art.  2, s. 2, the president
"shall nominate, and by and with the consent of the senate, shall
appoint ambassadors," &c.

  NOMINE POENAE, contracts. The name of a penalty incurred by the
lessee to  the lessor,  for the  non-payment of  rent at  the day
appointed by  the lease or agreement for its payment. 2 Lill. Ab.
221. It  is usually  a gross  sum of  money, though it may be any
thing  else,   appointed  to   be  paid  by  the  tenant  to  the
reversioner, if  the duties  are in  arrear, in  addition to  the
duties themselves. Ham. N. P. 411, 412.

   2. To  entitle himself to the nomine paenae, the landlord must
make a  demand of  the rent  on the very day, as in the case of a
reentry. 1 Saund. 287 b, note;  7 Co. 28 b Co. Litt. 202 a;  7 T.
R. 11 7. A distress cannot be taken for a nomine paenae, unless a
special power to distrain be annexed to it by deed. 3 Bouv. Inst.
n. 2451.  Vide Bac. Ab. Rent, K 4;  Woodf. L. & T. 253;  Tho. Co.
Litt. Index, h. t.;  Dane's Ab. Index, h. t.

  NOMINEE. One who has been named or proposed for an office.

   NON. Not.  When prefixed  to other  words, it  is  used  as  a
negative as non access, non assumpsit.

   NON ACCEPTAVIT.  The name  of a plea to an action of assumpsit
brought against  the drawee of a bill of exchange upon a supposed
acceptance by  him. See  4 Mann. & Gr. 561;  S. C. 43 E. C. L. R.
292.

   NON  ACCESS.  The  non  existence  of  sexual  intercourse  is
generally expressed  by the  words " non access of the husband to
the wife which expressions, in a case of bastardy, are understood
to mean the same thing. 2 Stark Ev. 218, n.

  2. In Pennsylvania, when the husband has access to the wife, no
evidence  short   of  absolute   impotence  of  the  husband,  is
sufficient to  convict a third person of bastardy with tlie wife.
6 Binn. 283.

   3. In  the civil  law the maxim is, Pater is est quem nupticae
demonstrant. Toull.  tom. 2, n. 787. The Code Napoleon, art. 312,


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enacts, "  que l'enfant  concu pendant  le mariage a pour pere le
mari." See also 1 Browne's R. Appx. xlvii.

   4. A married woman cannot prove the non access of her husband.
Id. See 8 East, 202;  4 T. R. 251;  11 East, 132;  13 Ves. 58;  8
East, R.  193;   12 East, R. 550;  4 T. R. 251, 336;  11 East, R.
132;  6 T. R. 330.

   NON AGE.  By this  term is understood that period of life from
the birth  till the arrival of twenty-one years. In another sense
it means under the proper age to be of ability to do a particular
thing;   as, when  non age  is applied  to one  under the  age of
fourteen, who is unable to marry.

   NON ASSUMPSIT,  pleading. The general issue in trespass on the
case, in  the species  of assumpsit. Its form is, "And the said C
D, by  E F, his attorney, comes and defends the wrong and injury,
when, &c.,  and says,  that he  did not  undertake or  promise in
manner and  form as  the said  A B, hath above complained. And of
this he puts himself upon the country."

   2. Under  this plea  almost  every  matter  may  be  given  in
evidence, on  the ground,  it is  said, that  as  the  action  is
founded on  the contract, and the injury is tlie non, performance
of it,  evidence which disaffirms the obligation of the contract,
at the  time when  the action  was commenced, goes to the gist of
the action. Gilb. C. P. 6 5;  Salk. 27 9;  2 Str. 738;  1 B. & P.
481. Vide 12 Vin. Ab. 189;  Com Dig. Pleader, 2 G 1.

   NON ASSUMPSIT INFRA SEX ANNOS. The name of a plea by which the
defendant avers  that he did not assume to perform the assumption
charged in the declaration within six years.

  2. The act of limitation bars the recovery of a simple contract
debt after  six years;   when  a defendant  is  sued  on  such  a
contract, and it is more than six years since he entered into the
contract, he  pleads this  plea by  the following formula:  " and
saith that  the aforesaid  plaintiff the  action aforesaid hereof
against him  he ought  not to  have, because he saith that he did
not undertake,  &c., and  this he  is ready to verify." Vide ddio
non accrevit infra sex annos.

   NON BIS  IN IDEM, civil law. This phrase signifies that no one
shall be  twice tried for the same offence;  that is, that when a
party accused  has been  once tried  by a  tribunal in  the  last
resort, and  either convicted or acquitted, he shall not again be
tried. Code 9, 2, 9 & 11. Merl. RŠpert. h. t. Vide art. Jeopardy.

   NON CEPIT  MODO ET  FORMA,  pleading.  The  general  issue  in
replevin. Its  form is,  "And the said C D, by E F, his attorney,
comes and defends the wrong and injury, when, &c., and says, that
he did  not take  the said  cattle, (or  ' goods  and  chattels,'
according. to the subject of the action,) in the said declaration
mentioned or any of them, in manner and form as the said A B hath
above complained.  And of this the said C D puts himself upon the
country."


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  2. This issue applies to a case where the defendant has not, in
fact, taken  the cattle  or goods, or where he did not take them,
or have  them in  the place  mentioned in  the  declaration.  The
declaration alleges  that the  defendant " took certain cattle or
goods of the plaintiff, in a certain place called," &c.;  and the
general issue  states, that  he did  not take  the said cattle or
goods, -- in manner and form as alleged;" which involves a denial
of the taking and of the place in which the taking was alleged to
have been,  the place  being a  material point  in  this  action.
Steph. PI. 183, 4;  1 Chit. Pl. 490.

   NON CLAIM.  An omission  or neglect  by one entitled to make a
demand within  the time  limited by  law;   as, when  a continual
claim ought  to be  made, a  neglect to  make such claim within a
year aud a day.

   NON COMPOS  MENTIS, persons.  These words signify not of sound
mind, memory,  or understanding.  This is  a  generic  term,  and
includes all  the species  of madness,  whether it arise from, 1,
idiocy;   2, sickness 3, lunacy or 4, drunkenness. Co. Litt. 247;
4 Co.  124;   1 Phillim.  R. 100;   4 Com. Dig. 613;  5 Com. Dig.
186;  Shelf. on Lunatics, 1;  and the articles Idiocy;  Lunacy.

   NON CONCESSIT,  Eng. law.  The name  of a  plea by  which  the
defendant denies  that the  crown granted  to  the  plaintiff  by
letters patent,  the rights  which he claims as a concession from
the king;  as, for example, when a plaintiff sues another for the
infringement of his patent right, the defendant way deny that the
crown has granted him such a right.

   2. The  plea of  non concessit  does not  deny the  grant of a
patent, but  of  the  patent  as  described  in  the  plaintiff's
declaration. 3 Burr. 1544;  6 Co. 15, b.

  NON CONFORMISTS English law. A name given to certain dissenters
from the rites and ceremonies of the church of England.

   NON CONSTAT.  It does  not appear.  These words are frequently
used, particularly  in argument;   as,  it was moved in arrest of
judgment that  the declaration  was not good, because non constat
whether A  B was  seventeen years  of age  when  the  action  was
commenced. Sw. pt. 4, SS 22, p. 331.

   NON CULPABILLS,  pleading. Not  guilty. (q.  v.) It is usually
abbreviated non cul. 16 Vin. Ab. 1.

   NON DAMNIFICATUS,  pleading. A  plea to an action of debt on a
bond of  indemnity, by  which  the  defendant  asserts  that  the
plaintiff has  received no damage;  in other words that he is not
damnified. 1  B. & P. 640, n. a;  1 Taunt. R. 428;  1 Saund. 116,
n. 1;   2  Saund. 81;   7  Wentw. PI. 615, 616;  1 H. Bl. 253;  2
Lill. Ab.  224;   14 John  R. 177;  5 John. R. 42;  20 John. Rep.
153;  3 Cowen, R. 313;  10 Wheat R. 396, 405;  3 Halst. R. 1.

  NON DEDIT, pleading. The general issue in formedom. See Ne dona
pas.


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  NON DEMISIT, pleading. A plea proper to be pleaded to an action
of debt  for rent,  when the plaintiff declares on a parol lease.
Gilb. Debt, 436, 438;  Bull. N. P. 177;  1 Chit. Pl. 477.

   2. It is improper to plead such plea when the demise is stated
to have  been by  indenture. Id.;   12  Vin. Ab.  178;  Com. Dig.
Pleader, 2 W 48.

   NON DETINET,  pleading. The  general issue  in  an  action  of
detinue. Its  form is as follows::  And the said C D, by E F, his
attorney, comes  and defends the wrong and injury, when, &c., and
says, that  he does  not detain  the said goods and chattels (or,
deeds and  writings,' according to the subject of the action,) in
the said  declaration specified,  or any  part thereof, in manner
and form  as the  said A B bath above complained. And of this the
said C D puts himself upon the country."

   2. In  debt on  simple contract,  in the case of executors and
administrators, instead of pleading nil debet, the plea should be
"doth, not  detain.". 6  East, R.  549;   Bac. Abr.  Pleas, I;  1
Chit. PI.  476. 3.  The plea of non detinet merely puts iii issue
the simple  fact of  detainer;   when the defendant relies upon a
justifiable detainer, he must plead it specially. 8 D. P C. 347.

 NON  EST FACTUM,  pleading. The general issue in debt on bond or
other specialty, and is, in form, as follows:  I " And the said C
D, by E F, his attorney, conies and defends the wrong and injury,
when, &c.,  and says,  that the said supposed writing obligatory,
(or 'indenture,'  or 'articles  of agreement,'  according to  the
subject of  the action,)  is not  his deed.  And of  this he puts
himself upon the country." 6 Rand. Rep. 86;  1 Litt. R. 158.

   2. Though  non est factum is, in most cases, the general issue
in debt  on specialty,  yet, when  the deed is only inducement to
the action, the general issue is nil debet. Steph. Pl. 174, n.

   3. In  covenant tlie general issue is non est factum;  and its
form is  similar to  that in debt on a specialty. Id. 174. It is,
however, said,  that in  covenant there is, strictly speaking, no
general issue,  as the plea of non est factum only puts tlie deed
in issue,  as in  debt on  a specialty,  and not  the  breach  of
covenant or  any other  matter of  defence. 1  Chit. PI. 482. See
generally, 1 Harring. R. 230;  6 Munf. R. 462;  Minor, R. 103;  1
Harr. &  Gill, 324;   13 John. R, 430;  12 John. R. 337;  2 N. H.
Rep. 74;   4  Wend. R. 519;  2 N. &  M. 492. See Issint;  Special
non est factum.

   NON EST  INVENTUS, practice.  The sheriff's  return to  a writ
requiring him  to ,arrest  the person  of  the  defendant,  which
signifies that he is not to be found within his jurisdiction. The
return is usually abbreviated N. E. I. Chit. Pr. Index, L. t.

  NON FEASANCE, torts, contracts. The non-performance of some act
which ought to be performed.

 2.  When a  legislative act requires a person to do a thing, its
non feasance  will subject  the party  to punishment;   as,  if a


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statute require  the supervisors  of the  highways to repair such
highways, tlie  neglect to  repair them  may be  punished. Vide 1
Russ. on Cr. 48.

 3.  Mere non-feasance  does not  imply malice;  this is strongly
exemplified in the case of a plaintiff, who, having issued a writ
of capias  against his  debtor, afterwards received the debt, and
neglected to  countermand tlie  writ, in consequence of which the
defendant was  afterwards arrested.  On a  suit  brought  by  the
former defendant  against tlie former plaintiff, it was held that
the law  did not  impose on  the  first  plaintiff  the  duty  of
countermanding  his   writ.  If   he  had  refused  to  give  the
countermand when  requested,  it  might  have  been  evidence  of
malice, but  in such  case there would have been something beyond
mere non-feasance,  an actual  refusal. 1 B & P. 388;  3 East, R.
314;  2 Bos. & P. 129.

 4.  There is  a difference  between nonfeasance and misfeasance,
(q. v.)  or malfeasance.  (q. v.)  Vide 2 Kent, Com. 443 Story on
Bailm. §9,  165;   2 Vin.  Ab. 35  1 Hawk. P. C. 13;  Bouv. Inst.
Index, h. t.

  NON FECIT. He did not make it. The name of a plea, for example,
in an action of assumpsit on a promissory note. 3 Mann. Gr. 446.

 NON  FECIT VASTUM CONTRA PROHIBITIONEM. The name of a plea to an
action founded  on a  writ of estrepement, that the defendant did
not commit  waste contrary  to the  prohibition. 3  Bl. Com. 226,
227.

   NON INFREGIT  CONVENTIONEM, pleading.  A plea  in an action of
covenant. This plea is not a general issue, it merely denies that
the defendant  has broken  the covenants  on which he is sued. It
being in the negative, it cannot be used where the breach is also
in the  negative. Bac  Ab. Covenant L;  3 Lev. 19;  2 Taunt. 278;
1 Aik. R. 150;  4 Dall. 436;  7 Cowen, R. 71.

   NON JOINDER,  pleading, practice.  The omission of some one of
the persons  who ought to have been made a plaintiff or defendant
along with others is called a non joinder.

  2. In actions upon contracts, where the contract has been made,
with several,  if their  interest were  joint, they miist all, if
living, join in the action for its breach. 8 S., & R. 308;  10 S.
& R. 257;  Minor, 167;  Hardin, 508. In such case the non joinder
must be pleaded in abatement. Id.;  3 Bouv. Inst. n. 2749.

   NON JURORS, English law. Persons who refuse to take the oaths,
required by law, to support the government. 1 Dall. 170.

  NON LIQUET. It is not clear.

   NON MODERATE CASTIGAVIT. The name of a faulty replication to a
plea of  moderate castigavit. (q. v.) This replication, in such a
case, is a negative. pregnant. Gould, PI. ch. 7, SS 37.

   NON OBSTANTE,  Engl. law. These words, which literally signify


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notwithstanding, are used to express the act of the English king,
by which  he dispenses  with the  law, that  is,  authorizes  its
violation.

   2. He  cannot by  his license  or dispensation make an offence
dispunishable which is malum in se;  but in certain matters which
are mala  prohibita, be  may, to  certain persons  and on special
occasions, grant  a non  obstante. 1  Th. Co.  Litt. 76,  n.  19;
Vaugh. 330  to 359;   Lev. 217;  Sid. 6, 7;  12 Co. 18;  Bac. Ab.
Prerogative, D. 7. Vide Judgment non obstante veredicto.

  NONOBSTANTEVEREDICTO. Notwithstanding the verdict. See Judgment
non obstante veredicto.

   NON OMITTAS,  English practice. The name of a writ directed to
the sheriff  Where the bailiff of a liberty or franchise, who has
the return of writs, neglects or refuses to serve a process, this
writ issues  commanding the  sheriff to  enter into the franchise
and execute  the process  himself, or by bis officer, non omittas
propter aliquam  libertatem. For  the despatch  of business a non
omittas is commonly directed in

 the first instance. 3 Chit. Pr. 190, 310.

   NON PROS,  or NON PROSEQUITUR. The name of a judgment rendered
against  a   plaintiff  for  neglecting  to  prosecute  his  suit
agreeably to  law and the rules of the court. Vide Grah. Pr. 763;
3 Chit. Pr. 910;  1 Sell. Pr. 359;  1 Penna. Pr. 84;  Caines' Pr.
102;  2 Arch. Pr. 204 and article Judgment of Non Pros.

   NON RESIDENCE,  eccles. law.  The absence of spiritual persons
from their benefices.

   NON SUBMISSIT.  The name  of a  plea to an action of debt or a
bond to  perform an  award, by which the defendant pleads that he
did not submit. Bac. Ab. Arbitr. &c., G.

    NON  SUM  INFORMATUS,  pleading.  I  am  not  informed.  Vide
lnformatus non SUM.

   NON  TENENT  INSIMUL,  pleadings.  A  plea  to  an  action  in
partition, by  which the  defendant  denies  that  he  holds  the
property, which  is the  subject of  the suit,  together with the
complainant or plaintiff.

   NON TENUIT.  He did  not hold.  The name  of a  plea in bar in
replevin, when the

 plaintiff  has avowed  for rent  arrear, by  which the plaintiff
avows that  he did  not hold  in manner  and form  as the  avowry
alleges.

   NON TENURE,  pleading. A  plea in  a real action, by which the
defendant asserted,  that he  did not  hold the land, or at least
some part  of it,  as mentioned in the plaintiff's declaration. 1
Mod. 250.


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   2. Non  tenure is either a plea in bar or a plea in abatement.
14 Mass.  239;  but see 11 Mass. 216. It is in bar, when the plea
goes to  the tenure,  as when  the tenant denies that he holds of
the defendant,  and says  he holds of some other person, But when
the plea  goes to  the tenancy of the land, as when the defendant
pleads that  be is  not the  tenant of  the land, it is in abate,
ment only. Id.;  Bac. Ab. Pleas, &c., I 9.

  NON TERM. The vacation between two terms of a court.

  NON USER. The neglect to make use of a thing.

   2. A  right which  may be  acquired by  use, may  be  lost  by
non-user, and  an absolute  discontinuance of  the use for twenty
years affords  presumption of the extinguishment of the right, in
favor of  some others adverse right. 5 Whart. Rep. 584;  23 Pick.
141. 3.  As an  enjoyment for  twenty years is necessary to found
the presumption  of a  grant of an easement, the general rule is,
there must  be a  similar non-user  to raise the presumption of a
release. But in this case the owner of the servient premises must
have done some act inconsistent with, or adverse to the existence
of the  right. See  2 Evans's  Pothier, 136;  10 Mass. R, 183;  3
Campbl. R.  614;  3 Kent, Com. 359;  1 Chit. Pr. 284, 285, 767 to
759, n.  (s);   1 Ves.  jr. 6,  8;   2 Supp.  to Ves. jr. 442;  2
Anstr. 603;   S.  C. on appeal, 1 Dowl. R. 316;  4 Ad. & Ell 369;
6 Nev.  & M.  230. But  the dereliction  or abandonment of rights
affecting lands  is not in all cases held to be evidenced by mere
non-user.

  4. As an exception to the rule may be mentioned rights to mines
and minerals, with the incidental privilege of boring and working
them. 16 Ves. 390;  19 Ves. 166.

   5. In  the civil  law there  is a  similar doctrine:   on this
subject, Vide  Dig. 8, 6, 5;  Voet, Com. ad Pand. lib. 8, tit. 6,
s. 5  et 7;   3 Toull. n. 673;  Merl. Repert. mot Servitude, §30,
n. 6, and §33;  Civ. Code of Louis. art. 815, 816.

   6. Every  public officer is required to use his office for the
public good;   a  non-user of  a public  office  is  therefore  a
sufficient cause  of forfeiture.  2 Bl.  Com. 153;  9 Co. 60. Non
user, for  a great  length of  time,  will  have  the  effect  of
repealing an  old law.  But it  must be  a very strong case which
will have that effect. 13 S. & R. 452;  1 Bouv. Inst. n. 94.

   NONSENSE, construction.  That which  in a written agreement or
will is unintelligible.

  2. It is a rule of law that an instrument shall be so construed
that the  whole, if  possible, shall  stand.  When  a  matter  is
written grammatically  right, but  it is  unintelligible, and the
whole makes nonsense, some words cannot be rejected to make sense
of the  rest;  1 Salk. 324;  but when matter is nonsense by being
contrary and  repugnant to,  some precedent sensible latter, such
repugnant matter is rejected. Ib.;  15 Vin. Ab. 560;  14 Vin. Ab.
142. The  maxim of the civil law on this subject agrees with this
rule:   Quae in  testamento ita  sunt scripta,  ut intelligi  non


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possent:     perinde  sunt,   ac  si  scripta  non  essent.  Dig.
50,17,73,3.   Vide    articles    dmbiguity;        Construction;
Interpretation.

   3. In pleading, when matter is nonsense by being contradictory
and repugnant to something precedent, the precedent matter, which
is sense,  shall not be defeated by the repugnancy which follows,
but that  which is  contradictory  shall  be  rejected;    as  in
ejectment where  the declaration is of a demise on the second day
of January,  and that the defendant postea scilicet, on the first
of January,  ejected him;   here  the scilicet may be rejected as
being expressly  contrary to the postea and the precedent matter.
5 East, 255;  1 Salk. 324.

   NON SUIT.  The name  of a  judgment given against a plaintiff,
when be  is unable  to prove  his case,  or when  he  refuses  or
neglects to proceed to the trial of a cause after it has been put
at issue, without determining such issue.

  2. It is either voluntary or involuntary.

   3. A  voluntary nonsuit  is an  abandonment of  his cause by a
plaintiff, and  an agreement that a judgment for costs be entered
against him.

   4 An  involuntary nonsuit  takes placs  when the 'Plaintiff on
being called,  when his  case is  before  the  court  for  trial,
neglects to appear, or when he has given no evidence upon which a
jury could find a verdict. 13 John. R. 334.

   5. The courts of the United States;  1 Pet. S. C. R. 469, 476;
those of  Pennsylvania;   1 S. & R. 360;  2 Binn. R. 234, 248;  4
Binn. R.  84;   Massachusetts;   6 Pick.  R. 117;   Tennessee;  2
Overton, R.  57;   4 Yerg. R. 528;  and Virginia;  1 Wash. R. 87,
219 cannot  order a  nonsuit against  a plaintiff  who has  given
evidence of  his claim. In Alabama, unless authorized by statute,
the court cannot order a nonsuit. Minor, R. 75;  3 Stew. R. 42.

   6. In New York;  13 John. R 334;  1 Wend. R. 376;  12 John. R.
299;   South Carolina;  2 Bay, R. 126, 445;  2 Bailey, R. 321;  2
McCord, R.  26;  and Maine;  2 Greenl. R. 5;  3 Greenl. R. 97;  a
nonsuit  may   in  general  be  ordered  where  the  evidence  is
insufficent to  support the  action.  Vide  article  Judgment  of
Nonsuit, and  Grah. Pr.  269;  3 Chit. Pr. 910;  1 Sell. Pr. 463;
1 Arch. Pr. 787;  Bac. Ab. h. t.;  15 Vin.  Ab. 560.

   NORTH CAROLINA.  The name of one of the original states of the
United States  of America.  The territory  which now  forms  this
state was  included in  the grant  made in 1663 by Charles II. to
Lord Clarendon  and others, of a much more extensive country. The
boundaries were  enlarged by  a new  charter granted  by the same
prince to  the same  proprietaries, in  the year  1665.  By  this
charter the  proprietaries were authorized to make laws, with the
assent of  the freemen  of the  province or  their delegates, and
they were  invested with various other powers. Being dissatisfied
with the  form of  government,  the  proprietaries  procured  the
celebrated John  Locke to  draw a  plan  of  government  for  the


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colony, which was adopted and proved to be impracticable;  it was
highly  exceptionable   on  account   of  its  disregard  of  the
principles of  religious toleration  and national  liberty, which
are now  universally admitted.  After a few years of unsuccessful
operation it  was abandoned.  The colony  had been settled at two
points, one  called the  Northern  and  the  other  the  Southern
settlement, which  were governed  by  separate  legislatures.  In
1729, the proprietaries surrendered their charter, when it became
a royal  province, and was governed by a commission and a form of
government in  substance similar  to that  established  in  other
royal provinces.  In 1732,  the territory  was divided,  and  the
divisions assumed the names of North Carolina and South Carolina.

  2. The constitution of, North Carolina was adopted December 18,
1776. To  this constitution  ammendments were made in convention,
June 4, 1835, which were ratified by the people on the 9th day of
November of  the same  year, and  took effect  on the  1st day of
January, 1836.

   3. The  powers of  the government  are distributed  into three
branches, the legislative, the executive, and the judiciary.

   4. -  §1. The legislative power is vested in a senate and in a
house of  commons, and both are denominated the general assembly.
These will be separately, considered.

   5. - 1st. In treating of the senate, it will be proper to take
a view  of, 1.  The qualifications of senators. 2. Of electors of
senators. 3.  Of the number of senators. 4. Of the time for which
they are elected.

   6. -  1. The  first article,  section 3,  of  the  amendments,
provides:  All freemen of the age of twenty-one years, (except as
is hereinafter  declared,) who  have been  inhabitants of any one
district within,  the state  twelve months  immediately preceding
the day  of any  election, and possessed of a freehold within the
same district  of fifty  acres of land for six months next before
and at  the day  of election,  shall be  entitled to  vote for  a
member of  the senate;  consequently no free negro or free person
of mixed  blood, descended  from negro  ancestors to  the  fourth
generation inclusive, can be a senator, as such persons cannot be
voters. The 4th article, sec. 2, of the amendments, declares that
no person  who shall  deny the  being of God, or the truth of the
Christian


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religion,  or  the divine authority of tlie Old or New Testament,
or who  shall hold  religious principles  incompatible  with  the
freedom or  safety of  the state, shall be capable of holding any
office or place of trust or profit in the civil department within
this state. And the fourth section of the article directs that no
person who  shall hold  any office  or place  of trust  or profit
under the United States, or any department thereof, or under this
state, or  any other  state or government, shall hold or exercise
any other  office or place of trust or profit under the authority
of this  state, or  be eligible  to a seat in either house of the
general assembly:   Provided, that nothing herein contained shall
extend to  officers, in the militia or justices of the peace. The
31st section  of the  constitution provides that no clergyman, or
preacher of  the gospel, of any denomination, shall be capable of
being a member of either the senate, house of commons, or council
of state,  while he  continues in  the exercise  of his  pastoral
function. 2.  The first  article  of  the  amendments,  provides,
section 3,  §2, that all free men of the age of twenty-one years,
(except as  hereinafter declared,)  who have  been inhabitants of
any one  district within  the  state  twelve  months  immediately
preceding the  day of  any election,  and possessed of a freehold
within the  same district  of fifty acres of land, for six months
next before and at the day of election, shall be entitled to vote
for a  member of  the senate. And §3, no negro, free, mulatto, or
free person of mixed blood, descended from negro ancestors to the
fourth  generation   inclusive,  (though  one  ancestor  of  each
generation may  have been a white person,) shall vote for members
of the  senate or  house of  commons. 3.  The senate  consists of
fifty representatives.  Amendm. art.  1, s. 1. 4. They are chosen
biennially by ballot. Id.

   7. -  2d. The  house of commons will be considered in the same
order which  has been  observed in speaking of the senate. 1. The
sixth section  of the  constitution requires  that each member of
the house  of commons shall have usually resided in the county in
which he  is  chosen  for  one  year  immediately  preceding  his
election, and  for six  months shall have possessed, and continue
to possess,  in the county which be represents, not less than one
hundred acres  of land  in fee,  or for the term of his own life.
The disqualifications  of persons  for membersbip in the house of
commons will be found ante, under the bead senate.

   2. The  qualifications of  voters for  members of the house of
commons are,  by sect. 8 of the constitution, that all freemen of
the age of twenty-one years, who have been inhabitants of any one
county within  the state  twelve months immediately preceding the
day of  any election,  and shall have paid public taxes, shall be
entitled to  vote for  members of  the house  of commons, for the
county in which be resides. And by §9, that all persons possessed
of a  freehold, in  any town  in this  state, having  a right  of
representation, and  also all  freemen, who have been inhabitants
of any  such town  twelve months  next before,  and at the day of
election, and  shall have paid public taxes, shall be entitled to
vote for a member to represent such town in the house of commons;
Provided,  always,  that  this  section  shall  not  entitle  any
inhabitant of  such town  to vote  for members  of the  house  of
commons for  the county  in  which  he  may  reside;    nor  ally


         Bouvier's Law Dictionary : N1 : Page 68 of 88


freeholder in  such county,  who resides  without or  beyond  the
limits of  such town,  to vote for a member of the said town. But
mulattoes, or  persons of  a mixed blood, are not voters. Amendm.
art. 1, sect. 3, §3.

   3. The Amendments, article 1, section 1, §§2, 3, and 4, direct
bow the  house of  commons shall  be composed,  as follows:   The
house of  commons shall  be composed  of one  hundred and  twenty
representatives, biennially  chosen by  ballot, to  be elected by
counties  according  to  their  federal  population;    that  is,
according to  their respective numbers, which shall be determined
by adding  to the  whole number  of free persons, including those
bound to  service for a term, of years, and excluding Indians not
taxed, three-fifths of all other, persons;  and each county shall
have at least one member in the house of commons, although it may
not contain the requisite ratio of population. This apportionment
shall be  made by  the general  assembly, at the respective times
and periods  when the  districts for  the senate are hereinbefore
directed to  be laid  off;   aud the  said apportionment shall be
made according  to an  enumeration to  be ordered  by the general
assembly, or  according to the census which may be taken by order
of congress,  next preceding  the miking  such apportionment.  In
making the  apportionment in  the house  of commons, the ratio of
representation shall  be ascertained  by dividing  the amount  of
federal  population   in  the   state,   after   deducting   that
comprehended within those counties which do not severally contain
the  one  hundred  and  twentieth  part  of  the  entire  federal
population aforesaid,  by the number of representatives less than
the  number  assigned  to  the  said  counties.  To  each  county
containing the  said ratio,  and not  twice the said ratio, there
shall be assigned one representative;  'to each county containing
twice, but  not three  times  the  said  ratio,  there  shall  be
assigned two  representatives, and so on progressively;  and then
the remaining  representatives shall be assigned severally to the
counties having  the  largest  fractions.  4.  They  are  elected
biennially.

   8. - §2. The executive power is regulated by the amendments of
the constitution, article 2, as follows, namely:

   §1. The  governor shall  be chosen by the qualified voters for
the members  of the  house of commons, at such time and places as
members of the general assembly are elected.

   §2. He  shall hold  Iiis office for the term of two years from
the time  of bis installation, and until another shall be elected
and qualified;  but he shall not be eligible more than four years
in any term of six years.

   §3. The returns of every election for governor shall be sealed
up and  transmitted to  the seat  of government, by the returning
officers, directed  to the  speaker of the senate, who shall open
and publish  them in the presence of a majority of the members of
both houses  of the  general  assembly.  The  person  having  the
highest number  of votes  shall be  governor;  but if two or more
shall be  equal and highest in votes, one of them shall be chosen
governor by joint vote of both houses of the general assembly.


         Bouvier's Law Dictionary : N1 : Page 69 of 88


   §4. Contested  elections for  governor shall  be determined by
both houses  of the  general assembly, in such manner as shall be
prescribed by  law., SS  5. The governor elect shall enter on the
duties of  the office  on the first day of January next after his
election, having  previously taken  the oath  of  office  in  the
presence of the members of both branches of the general assembly,
or before  the chief  justice of  the supreme court, who, in case
the governor elect should be prevented from attendance before the
general assembly,  by sickness  or other  unavoidable  cause,  is
authorized to administer the same.

    9.  - §3.  Tbejudicial powers are vested in supreme courts of
law and equity, courts of admiralty, and justices of the peace.

   NOSOCOMI, civil  law. Persons who have the management and care
of hospitals for paupers. Clef Lois Rom. mot Administrateurs.

   NOT FOUND. These words are endorsed ou a bill of indictment by
a grand  jury,.when they  have not  sufficient evidence to find a
true bill;  the same as Ignoramus. (q. v.)

   NOT GUILTY,  pleading. The  general issue  in several sorts of
actions. It is the general issue.

   2. In trespass, its form is as follows:  "And the said C D, by
E F, his attorney, comes and defends the, force and injury, when,
&c., and says, that he is not guilty of the said trespasses above
laid to  his charge,  or any part thereof, in the mannor and form
as the  said A  B hath above complained. And of this the said C D
puts himself upon the country."

   3. Under  this issue  the defendant  may give  in evidence any
matter which  directly controverts  the truth  of any allegation,
which the plaintiff on such general issue will be bound to prove;
1 B.  & P.  213;   and no  person is bound to justify who is not,
prima facie,  a trespasser.  2 B. & P. 359:  2 Saund. 284, d. For
example, the plea of not guilty is proper in trespass to persons,
if  the   defendant  have   committed  no  assault,  battery,  or
imprisonment, &c.;   and in trespass to personal property, if the
plaintiff had no property in the goods, or the defendant were not
guilty of  taking them,  &c.;   and in trespass to real property,
this plea  not only  puts in issue the fact of trespass, &c , but
also the  title, which,  whether freehold  or possessory  in  the
defendant, or  a person  under whom  he claims,  may be  given in
evidence under  it, which  matters show,  prima facie,  that  the
right of  possession, which  is necessary  in trespass, is not in
the plaintiff,  but in  the defendant or the person under whom he
justifies. 8  T. R.  403;  7 T. R. 354;  Willes, 222;  Steph. PI.
178;  1 Chit. PI. 491, 492.

   4. In  trespass on  the case  in general,  the formula  is  as
follows:   " And  the said  C D,  by E  F his attorney, comes and
defends the  wrong and injury when, &c., and says, that he is not
guilty of  the premises  above laid  to his charge, in manner and
form as  the said A B hath above complained. And of this the said
C D puts himself on the country."


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  5. This, it will be observed, is a mere traverse, or denial, of
the  facts  alleged  in  the  declaration;    and  therefore,  on
principle, should  be applied  only to cases in which the defence
rest's on such denial. But here a relaxation has taken place, for
under this plea, a defendant is permitted not only to contest the
truth of  the declaration, but with some exceptions, to prove any
matter of  defence, that  tends to show that the plaintiff has no
cause of  action,  though  such  matters  be  in  confession  and
avoidance of  the declaration;  as, for example, a release given,
or satisfaction made. Steph. Pl. 182-3;  1 Chit. Pi. 486.

  6. In trover. It is not usual in this action to plead any other
plea, except  the statute of limitations;  and a release, and the
bankruptcy of  the plaintiff,  may be given in evidence under the
general issue.  7 T. R. 391

   7. In  debt on a judgment suggesting a devastavit, an executor
may plead not  guilty. 1 T. R. 462.

  8. In criminal cases, when the defendant  wishes to put himself
on his trial, he pleads  not guilty.

  NOT POSSESSED. A plea sometimes used in actions of trover, when
the defendant  was not possessed of the goods at the commencement
of the action. 3 Mann. &  Gr. 101, 103.

  NOTARY or NOTARY PUBLIC. An officer appointed by the executive,
or other  appointing power, under the laws of different states.

  2. Their duties are generally prescribed by such laws. The most
usual of  which are,  l. To  attest deeds,  agreements and  other
instruments, in  order to  give them  authenticity. 2. To protest
notes, bills  of exchange,  and the like. 3. To certify copies of
agreements and other instruments.

   3. By  act of  congress, Sept.  16, 1850,  Minot's Statutes at
Large. U.  S. 458,  it is  enacted, That,  in all cases in which,
under the  laws of  the United States, oaths, or affirmations, or
acknowledgments may  now be  taken or  made before any justice or
justices of  the peace  of any  state or  territory, such  oaths,
affirmations, or  acknowledgments may  be hereafter also taken or
made by  or before  any notary public duly appointed in any state
or territory,  aud, when  certified under,  the hand and official
seal of  such notary,  shall have the name force and effect as if
taken or made by or before such justice or justices of the peace.
And all  laws  and  parts  of  laws  for  punishing  perjury,  or
subornation  of   perjury,  committed   in  any   such  oaths  or
affirmations, when  taken or  made before any such justice of the
peace, shall  apply to any such offence committed in any oaths or
affirmations which  may be  taken under  this act before a notary
public, or  commissioner, as hereinafter named:  Provided always,
That on  any trial  for either  of these  offences, the  seal and
signature of  the  notary  shall  not  be  deemed  sufficient  in
themselves to  establish the  official character  of such notary,
but the same shall be shown by other and proper evidence.


         Bouvier's Law Dictionary : N1 : Page 71 of 88


   4. Notaries,  are of  very ancient origin they were well known
among the  Romans, and  exist  in  every  state  of  Europe,  and
particularly on the continent.

 5.  Their acts  have  long  been  respected  by  the  custom  of
merchants and  by the  courts of  all nations.  6 Toull.  n. 211,
note. Vide,  generally, Chit.  Bills, Index,  h. t.;   Chit.  Pr.
Index,, h.  t.;   Burn's Eccl.  Law, h.  t.;  Bro. Off. of a Not.
passim;   2 Har. & John. 396;  7 Verm. 22;  8 Wheat. 326;  6 S. &
R. 484;  1 Mis. R. 434.

   NOTE, estates,  conv., practice.  The fourth part of a fine of
lands:   it is  an abstract  of the writ of covenant and concord,
and is  only a,  doequet taken by the chirographer, from which he
draws up  the indenture.  It is  sometimes taken in the old books
for the concord. Cruise, Dig. tit. 35, c. 2, 51.

   NOTE OF  HAND, contracts.  Another name, less technical, for a
promissory note.  (q.  v.)  2  Bl.  Com.  467.  Vide  Bank  note;
Promissory note, Reissuable note.

   NOTES, practice.  Short statements  of what  transpires on the
trial of  a cause;   they are generally made by the judge and the
counsel, for their Own satisfaction.

   2. They  are not, per se, evidence on another trial, not being
in the  nature of  a deposition.  4 Binn.  R. 110. But such notes
were admitted  in a  court of equity as evidence of what had been
stated by  a witness  at the trial of an action at law. 3 Y. & C.
413., And  a verdict  was amended,  in a  court of  law, from the
notes of  the judges. 11 Ad. & El. 179;  S. C. 39 Eng. C L R. 38;
see 5 Whart. 156;  5 Watts & S. 51.

  3. Notaries formerly made notes, matrix, by abbreviations, from
which they  made their records, and engrossed the acts which were
passed before  them. This original is now called the minutes. The
notes of  the prothonotaries  and clerks  of  courts  are  called
minutes.



  NOTICE.  The  information  given  of  some  act  done,  or  the
interpellation by  which some act is required to be done. It also
signifies, simply,  knowledge;   as A  had notice  that B  was  a
slave. 5 How. S. C. Rep. 216;  7 Penn. Law Journ. 119.

   2. Notices should always be in writing;  they should state, in
precise terms,  their object, and be signed by the proper person,
or his  authorized agent, be dated, and ad- dressed to the person
to be affected by them.

 3.  Notices are  actual, as  when they are directly given to the
party to be affected by them;  or constructive, as when the party
by any  circumstance whatever, is put upon inquiry, which amounts
in judgment  of law  to notice,  provided the,  inquiry becomes a
duty. Vide 2 Pow. Mortg. 561 to .662;  2 Stark. Ev. 987;  1 Phil.
Ev. Index,  b. t.;   1 Vern. 364, n.;  4 Kent, Com. 172;  16 Vin.


         Bouvier's Law Dictionary : N1 : Page 72 of 88


Ab. 2;   2 Supp. to Ves. jr. 250;  Grah. Pr. Index, h. t.;  Chit.
PI. Index,  h. t.;   2  Mason, 531;  14 Pick. 224;  4 N. H. ]Rep.
397;  14 S. & R. 333;  Bouv. Inst. Index, h. t.

 4.  With respect  to the  necessity for  giving notice, says Mr.
Chitty, 1 Pr. 496, the rules of law are most evidently founded on
good sense and so as to accord with the intention of the parties.
The giving  notice in certain cases obviously is in the nature of
a condition precedent to the right to call on the other party for
the performance  of his  engagement, wbether  his  contract  were
express or  implied. Thus,  in the  familiar instance of bills of
exchange  and  promissory  notes,  the  implied  contract  of  an
indorser is,  that be  will pay  the bill or note, provided it be
not paid,  on presentment  at maturity, by the acceptor or maker,
(being the  party primarily  liable, and  provided that  he  (the
indorser) has due notice of the dishonor, and without which be is
discharged from all liability;  consequently, it is essential for
the holder to be prepared to prove affirmatively that such notice
was given, or some facts dispensing with such notice.

 5.  Whenever the defendant's liability to perform an act depends
on another  occurrence, which is best known to the plaintiff, and
of which  the defendant  is not legally bound to take notice, the
plaintiff must  prove that  due notice,  was in fact given. So in
cases of  insurances  on  ships,  a  notice  of  abandonment.  is
frequently necessary  to enable the assured plaintiff. to proceed
as for  a total  lose when  something remains  to  be  saved,  in
relation to  which, upon  notice, the  insurers might  themselves
take their own measures.

 6.  To avoid  doubt or  ambiguity in the terms of the notice, it
may be  advisable to give it in writing, and to preserve evidence
of its  delivery, as  in the case of notices of the dishonor of a
bill.

 7.  The form  of the  notice may  be as  subscribed, but it must
necessarily vary  in its  terms according to the circumstances of
each case.  So, in  order to  entitle a  party to  insist upon  a
strict and  exact performance  of a contract on the fixed day for
completing it, and a fortiori to retain a deposit as forfeited, a
reasonable notice  must be  given of the intention to insist on a
precise performance,  or be  will be  considered as having waived
such strict  right. So if a lessee or a purchaser be sued for the
recovery of the estate, and he have a remedy over against a third
person, upon  a covenant  for quiet  enjoyment, it  is  expedient
(although not absolutely necessary) referring to such covenant.



 NOTICE,  AVERMENT OF, in pleading. This is frequently necessary,
particularly  in special actions of assumpsit.

 2.  When the  matter alleged in the pleading is to be considered
as lying more properly in the knowledge of the plaintiff, than of
the defendant,  then the  declaration ought  to  state  that  the
defendant had  notice thereof;  as when the defendant promised to
give the  plaintiff as much for a commodity as another person had
given, or should give for the like.


         Bouvier's Law Dictionary : N1 : Page 73 of 88


 3.  But where  the matter  does not  lie more  properly  in  the
knowledge of  the plaintiff,  than of  the defendant, notice need
not be  averred. 1  Saund. 117,  n. 2;   2  Saund. 62  a,  n.  4;
Freeman, R.  285. Therefore,  if the defendant contrasted to do a
thing, on  the performance  of an  act by a stranger, notice need
not be  averred, for it lies in the defendant's knowledge as much
as the  plaintiff's, and  he ought  to take  notice of  it at his
peril. Com.  Dig. Pleader,  C 75. See Com. Dig. Id. o 73, 74, 75;
Vin. Abr. Notice;  Hardr. R. 42;  5 T. R. 621.

 4.  The omission  of an averment of notice, when necessary, will
be fatal on demurrer or judgment by default;  Cro. Jac. 432;  but
may be  aided by  verdict;  1 Str. 214;  1 Saund. 228, a;  unless
in an  action against  the drawer of a bill, when the omission of
the averment  of notice  of non-payment by the acceptor is fatal,
even after verdict. Doug. R. 679.

 NOTICE  OF DISHONOR. The notice given by the holder of a bill of
exchange or promissory note, to a drawer or endorser on the same,
that it  has been dishonored, either by not being accepted in the
case of a bill, or paid in cue of an accepted bill or note.

 2.  It is  proper to consider, 1. The form of the notice;  2. By
whom it  is to be given;  3. To whom. 4. When;  5. Where;  6. Its
effects;   7. When  a want of notice will be excused;  8. When it
will be waived.

 3.  - SS1.  Although no  precise form  of words  is requisite in
giving notice of dishonor, yet such notice must convey, 1. A true
description of  the bill or note so as to ascertain its identity;
but if  the notice  cannot mislead  the party to whom it is sent,
and it  conveys the  real fact without any. doubt, although there
may be  a small variance, it cannot be material, either to regard
his rights  or to  avoid his  responsibility. 11 Wheat. 431, 436;
Story on Bills, SS 390;  11 Mees. & Wels. 809. 2. The notice must
contain an  assertion that  ther bill  has been duly presented to
the drawee  for acceptance,  when acceptance has been refused, or
to the  acceptor of a bill, or maker of a note for payment at its
maturity, and  dishonored. 4 C. 340;  7 Bing. 530;  l Bing. N. C.
192;   1 M.  & G. 76;  3 Bing. N. C. 688;  10 A. & E. 125. 3. The
notice must  state that  the holder,  or other  person giving the
notice, looks  to the  person to  whom the  notice is  given, for
reimbursement  and  indemnity.  Story  on  Bills,  SS  301,  390.
Although in  strictness this  may be required, where the language
is otherwise  doubtful and uncertain, yet, in general, it will be
presumed where in other respects the notice is sufficient. 2 A. &
E. N.  R. 388,  416;  11 Mees. & Wels. 372;  Sto on P. N. SS 353;
11 Wheat.  431, 437;  2 Pet. 543;  2 John. Cas. 237;  2 Hill, (N.
Y.) R. 588;  1 Spear, R. 244.

 4.-SS  2. In  general the  notice may  be given by the holder or
some one  authorized by him;  Story on Bills, SS 303, 304;  or by
some one  who is  a party and liable to pay the bill or note. But
notice given  by a  stranger is  not sufficient.  Chit. on Bills,
368, 8th  edit.;   1. T.  R. 170;   8 Miss. 704;  16 S. & R. 157,


         Bouvier's Law Dictionary : N1 : Page 74 of 88


160. On the death of the holder, his executor or administrator is
required to  give notice,  and, if  none be  then Appointed,  the
notice must  be given  within a  reasonable time after one may be
appointed. Story  on P. N. SS 3Q4. When the bill or note i's held
by partners,  notice by  any of  them is  sufficient;   and  when
jointholders have  the paper,  and one  dies, the  notice may  be
given by  the survivor;   the  assignee of  the holder  who is  a
bankrupt, must  give notice, but if no assignee be appointed when
the paper  becomes due,  the notice  must be  given without delay
after his  appointment;   but it  seems the  bankrupt holder  may
himself give  the notice. Story on P. N. SS 305. If -an infant be
the holder  the notice  may   be given  by him,  or if  he has  a
guardian, by the latter.

 5.-SS  3. The  holder is  required to  give notice  to  all  the
parties to  whom he  means to  resort for  payment,  and,  unless
excused in  point of  law, as  will be stated below, such parties
will be  exonerated, and absolved from all liability on such bill
or note. Story on P. N. SS 307. But a party who purchases a bill,
and, without  endorsing it,  transmits it  on  account  of  goods
ordered by  him, is  not entitled  to notice  of its  dishonor. 1
Wend. 219;   4  Wash. C. C. 1. In cases of partnership, notice to
either of  the partners  is sufficient.  Story on  Bills, SS 299;
Story on  P. N.  SS 308;  20 John. 176;  2 How. Sup. Ct. It. 457.
Notice should  be given  to each  of several joint endorsers, who
are not partners. 1 Conn. 368;  4 Cowen, 126;  6 Hill, (N. Y.) R.
282;  Story on Bills, SS 299. Notice to an absent endorser may be
given to  bis general  agent. 1 M. & Selw. 545;  16 Martin, (Lo.)
R. 87. See 12 Wheat. 599;  4 Wash. C. C. 464;  3 Wend. 276.

 6.  - SS  4. The notice of dishonor must be given to the parties
to whom  the holder  means to  resort, within  a reasonable  time
after the  dishonor of  the  bill,  when  it  is  dishonored  for
non-acceptance, and  he must  not delay  giving notice  until the
bill has  been protested  for non-payment.  Bull. N.  P. 271;  12
East, 434;  1 Harr. & J. 187;  1 Dall. 235;  2 Dall. 219, 233;  1
Yeates, 147;   3 Wash. C. C. 396;  1 Bay, 177;  11 John. 187;  10
Wend. 304;   13  Wend. 133;   5  Halst. 139;   4 J. J. Marsh. 61;
Paine, 156;   2  Hayw. 332;  2 Marsh. 616. Though formerly it was
doubtful whether  the court  or jury  were to  judge  as  to  the
reasonableness of  the notice  in respect  to time;  1 T. R. 168;
yet, it  -seems now  to be  settled,  that  when  the  facts  are
ascertained, it  is a  question for  the court  and 'not  for the
jury. 10  Mass. 84,  86;   6 Watts  & S.  399;   3 Marsh. 262;  2
Harris R.  488;-Penn. 916;  1 N. H. Rep. 140;  17 Mass. 449, 453;
2 Aik. 9;  Rice, R. 240;  2 Hayw. 45.

 7.-SS  5. In considering as to where the notice should be given,
a difference  is made  between cases, where the parties reside in
the same town, and where they do not. 1. When both parties reside
in the same town or city, the notice should either be personal or
at the  domicil or  place of  business of  the party notified, so
that it may reach him on the very day he is entitled to notice. 1
M. & S. 545, 554;  2 Pet. 100;  1 Pet. 578, 583;  Story on Bills,
SSSS 284-290;  1 Rob. Lo. R. 572;  3 Rob. Lo. 261;  20 John. 372;
1 Conn. 329;  17 Mart.,Lo. 137, 158,


         Bouvier's Law Dictionary : N1 : Page 75 of 88


 359;   19  Mart. Lo.  492;  Story on P. N. 322. But see 28 Pick.
305;  6 Watts & Serg. 262;  2 Aik. 263;  8 Ohio, 507, 510;  Rice,
R. 240,  243;   1 Litt.  R. 194. If the notice be put in the post
office, the  holder must  prove it  reached the  endorser. 2 Pet.
121. But  in those  towns where  they have  letter carriers,  who
carry letters from the post office and deliver them at the houses
or places of business of the parties, if the notice be put in the
post office  in time  to be delivered on the same day, it will be
sufficient. Chit.  on Bills,  504, 508,  513, 8th  edit.;  1 Pet.
578;  11 John. 231. 2. When the parties reside in different towns
or cities,  the notice  may be  sent by  the post,  or a  special
messenger, or  a private  person, or  by any  other  suitable  or
ordinary conveyance.  Chit. on  Bills, 518, 8th ed.;  Story on P.
N. SS  324;   Bayl. on  Bills, eh. 7, SS 2;  1 Pet. 582. When the
post is  resorted to,  the holder  has the whole day on which the
bill becomes  due to  prepare his notice, and if it be put in the
post office  on the  next day in time to go by either mails, when
there is  more than  one, it  will in  general be  sufficient. 17
Mass. 449,  454;  1 Hill, (N. Y.) R. 263;  but see contra, 2-Rob.
Lo. R. 117.

 8.  - SS6.  The effect  of the notice of dishonor, when properly
given, and  when it  is followed  by a protest, when a protest is
requisite, will  render the drawer and endorsers of a bill or the
endorsers of  a note  liable to  the holder.  But the  drawer and
endorsers may tender the money at any time before a writ has been
issued;  though the acceptor must pay the bill on present-

 ment,  and cannot  plead a  subsequent tender.  1 Marsh.  36;  5
Taunt. 240;  S. C. 8 East, 168.

 9.  - SS  7. The  same reasons  which will  excuse the want of a
presentment, will  in general  excuse  a  want  of  protest.  See
Presentment, contracts, n. 8, 9.

 10.-SS  8. A  want of  notice may  be waived  by the party to be
affected, after a full knowledge of the facts that the holder has
no just cause for the neglect or omission. Story on P. N. SS 858.
See Presentment, contracts, n. 9.

 NOTICE,  TO PRODUCE  PAPERS,  practice,  evidence.  When  it  is
intended to  give seoondary  evidence of  a written instrument or
paper, which is in:  the possession of the opposite party, it ii,
in general,  requisite to  give him notice to produce the same on
the trial  of the  cause, before  such secondary  evidence can be
admitted.

 2.  To this  general rule  there are  some exceptions:   1st. In
cases where,  from the  nature of  the proceedings,  the party in
possession of  the instrument  has notice that he is charged with
the possession  of it,  as in  the case  of trover for a bond. 14
East, R.  274;  4 Taunt. R. 865;  6 S. & R. 154;  4 Wend. 626;  1
Camp. 143.  2d. When  the party  in possession  Las obtained  the
instrument by  fraud. 4  Esp. R.  256. Vide  1 Phil.  Ev. 425;  1
Stark. Ev. 862;  Rosc. Civ. Ev. 4.

 3.  It will  be proper  to consider  the form of the notice;  to


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whom it  should be  given;   when it  must be  served;   and  its
effects.

 4.-1.  In general,  a notice to produce papers ought to be given
in writing,  and state  the title  of the  cause in  which it  is
proposed to  use the  papers or instruments required. 2 Stark. R.
19;   S. C. 3 E. C. L. R. 222. It seems, however, that the notice
may be  by  parol.  1  Campb.  R.  440.  It  must  describe  with
sufficient certainty  the papers  or instruments called! for, and
must not  be too general, and by that means be uncertain. R. & M.
341;  McCl. & Y. 139.

 5.-2.  The notice  may be  given to the party himself, or to his
attorney. 3  T. R. 806;  2 T. It. 203, n.;  R. & M. 827;  1 M.  &
M. 96.

 6.-3.  The notice must be served a reasonable time before trial,
so as  to afford  an opportunity  to the  party to search for and
produce the  intrument or paper in question. 1 Stark. R. 283;  S.
C. 2 E. C. L. R. 391;  R. & M. 47, 827;  1 M. & M. 96, 335, n.

 7.-4.  When a  notice to  produce an  instrument or paper in the
cause has  been proved,  and it is also proved that such paper or
instrument was,  at the  time of  the notice, in the hands of the
party or  his privy,  and, upon  request in  court, he refuses or
neglects to  produce it,  the party having given such notice, and
made such  proof, will  he entitled to give secondary evidence of
such paper or instrument thus withheld.

 8.  The 15th  section of the, judiciary act of the United States
provides, " that all the courts of the United:  States shall have
power, in  the trial of actions at law, on motion, and due notice
there of being given,  to require the parties to produce books or
writings in  their possession  or power,  which contain  evidence
pertinent to  the issue,  in cases  and under circumstances where
they might be compelled to produce the same by the ordinary rules
of proceeding  in chancery;   and  if a  plaintiff shall  fail to
comply with  such order to produce books or writings, it shall be
lawful for  the courts, respectively, on motion, to give the like
judgment for  the defendant,  as in cases of nonsuit;  and if the
defendant fail  to comply  with such  order to  produce books  or
writings, it  shall be  lawful for  the courts,  respectively, on
motion as  aforesaid, to  give judgment  against him  or  her  by
default."

 9.  The proper  course to  pursue under this act, is to move the
court for an order on the opposite party to produce such books or
papers. See,  as to  the rules  in courts of equity to compel the
production of  books and  papers, 1  Baldw. Rep. 388, 9;  1 Vern.
408, 425;   1  Sch. &  Lef. 222;  1 P. Wins. 731, 732;  2 P. Wms.
749;  3 Atk. 360. See Evidence, secondary.

 NOTICE TO QUIT. A request from a landlord to his tenant, to quit
the premises  lessed, and  to give possession of the same to him,
the landlord, at a time therein mentioned.

 2.  It will be proper to consider, 1. The form of the notice. 2.


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By whom it is to be given. 3. To whom. 4. The mode of serving it.
5. At  what time  it must  be served.  6. What  will amount  to a
waiver of it.

 3.-SS  1. The  form of  the notice.  The  notice  or  demand  of
possession should  contain a  request from  the landlord  to  the
tenant or  person in  possession to,  quit the  premises which he
holds from the landlord, (which premises ought to be particularly
described, as  being situate  in the  street an city or place, or
township and  county,) and  to deliver them to him on or before a
day certain,  generally, when  the lease  is for a year, the same
day of  the year on which the lease commences. But where there is
some doubt  as to  the time  when the  lease is  to expire, it is
proper to add, " or at the expiration of the current year of your
tenancy."

 2  Esp. N. P. C. 589. It should be dated, signed by the landlord
himself, or  by some  person in his name, who has been authorized
him, and  directed to the tenant. The notice must include all the
premises  under   the  same  demise;,  for  the  landlord  cannot
determine the  tenancy as  to part  of the  premises demised  and
continue it  as to  the residue.  For the  purpose of bringing an
ejectment, it  is not  necessary that  the notice  should  be  in
writing, except when required to be so under an express agreement
b tween  the parties.  Com. Dig. Estate by Grant, G 11, n. p. But
it is the general and safest practice to give written notices and
it is  a  precaution  which  should  always,  when  possible,  be
observed, as  it prevents  mistakes,  and  renders  the  evidence
certain and  correct. Care  should be  taken that  the words of a
notice be  clear and  decisive, without  ambiguity, or  giving an
alternative to  the tenant,  for if  it be  really  ambiguous  or
optional, it will be invalid. Adams on Ej. 122.

 4. -SS 2. As to the person by whom the notice is to be given. It
must be  given by  the person  interested in the premises, or his
agent properly  appointed. Adams  on Ej. 120. As the tenant is to
act upon  the notice  at the  time it  is given  to him  , it  is
necessary that  it should  be  such  as  he  may  act  upon  with
security, and  should, therefore, be binding upon all the parties
concerned at  the time  it is  given. Where,  therefore,  several
persons are  jointly interested  in the  premises, they  all must
join in the notice, and if any of them be not a party at the time
no subsequent  ratification by him will be sufficient by relation
to render the notice valid. 5 East, 491;  2 Phil. Ev. 184. But if
the notice  be given  by  an  agent,  it  is  sufficient  if  his
authority is after wards recognized. 3 B. & A. 689.

 5.-SS  3. As  to the  person to whom the notice should be given.
When the relation

 of  landlord and  tenant subsists, difficulties can seldom occur
as to the party upon whom

 the  notice should  be served.  It should invariably be given to
the tenant,  of the  party serving  the notice, notwithstanding a
part may  have been  underlet, or  the whole  of the premises may
have been  assigned;  Adams on Ej. 119;  2 New Rep. 330, and vide


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14 East,  234;   unless, perhaps,  the lessor  has recognized the
sub-tenant as his tenant. l0 Johns. 270. When the

 premises  are in  possession of  two or more as joint-tenants or
tenants in common, the

 notice  should be to all;  a notice addressed to all, and served
upon one only, will, how-

 ever, be a good notice. Adams on Ej. 123.

 6.  - SS  4. As  to the  mode of, serving the notice. The person
about serving  the notice  should make  two copies  of  it,  both
signed by the proper person, then procure one or more respectable
persons for  witnesses, to  whom he  should show the copies, who,
upon comparing  them, and  finding them alike, are to go with the
person who  is to serve the notice. The person serving the notice
then in their presence, should deliver one of these copies to the
tenant personally, or to one of his family, at his usual place of
abode, although  the same  be not  upon the  demised premises;  2
Phil, Ev.  185;   or serve it upon the person in possession;  and
where the  tenant is  not in  possession, a copy may be served on
him if  he can be found, and another on the person in possession.
The witnesses  should then,  for the sake of security, sign their
names on  the back  of  the  copy  of  the  notice  retained,  or
otherwise mark it so as to identify it, an they should also state
the manner in which the notice was served. In the case of a joint
demise to  two defendants,  of whom  one alone  resided upon this
premises, proof  of the  service of  the notice upon him has been
held to  be sufficient  ground for  the jury  to presume that the
notice so  served upon  the premises,  has reached  the other who
resided in another place. 7 East, 553;  5 Esp. N. P. C. 196,

 7.-SS  5. At what time it must be served. It must be given three
months before the expiration of the lease. Difficulties sometimes
arise as  to the  period of  the commencement of the tenancy, and
when a regular notice to quit on any particular day is given, and
the time  when the  term began  is unknown,  the effect  of  such
notice as to its being evidence or not of the commencement of the
tenancy, will  depend upon  the particular  circumstances of  its
delivery;   if the  tenant having been applied to by bis landlord
respecting the  time of  the commencement  of  the  tenancy,  has
informed him,  it began  on a certain clay, and in consequence of
such information,  a notice  to quit  on that  day is  given at a
subsequent period,  the tenant  is concluded by his act, and will
not be  permitted to prove that in point of fact, the tenancy has
a different  commencement;    nor  is  it  material  whether  the
information be the result of design or ignorance, as the landlord
is in both instances equally led into error. Adams on Ej. 130;  2
Esp. N.  P.   C. 635;   2  Phil. Ev.  186. In  like manner if the
tenant at the time of delivery of the notice, assent to the terms
of it,  it will  waive any  irregularity u  to the  period of its
expiration, but such assent must be strictly proved. 4 T. R. 361;
2 Phil.  Ev. 183.  When the landlord is ignorant of the time when
the term  commenced, a notice to quit may be given not specifying
any particular  day, but  ordering the tenant in general terms to
quit and deliver up the possession of the premises, at the end of


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the current year of his tenancy thereof, which shall, expire next
after the  end of three months from the date of the notice. See 2
Esp. N. P. C. 589.

 8.-SS  6. What  will amount  to a  waiver  of  the  notice.  The
acceptance of rent accruing subsequently to the expiration of the
notice is  the most  usual means  by which  a waiver of it may be
produced, but the acceptance of such rent is open to explanation;
and it is the province of the jury to decide with what views, and
under what circumstances the rent is paid and received. Adapms on
Ej. 139.  If the  money be taken with an express declaration that
the notice  is not  thereby intended to be waived, or accompanied
by other  circumstances which  may induce,  an opinion  that  the
landlord did  not intend  to continue the tenancy, no waiver will
be produced  by the  acceptance;   the  rent  must  be  paid  and
received as  rent, or the notice will remain in force. Cowp. 243.
The notice may also be waived by other acts of the landlord;  but
they are  generally open  to explanation,  and the particular act
will or  will not  be a  waiver of  the notice,  according to the
circumstances which  attend it.  2 East, 236;  10 East, 13;  1 T.
R. 53.  It has  been held  that a  notice to quit at the end of a
certain year  is not  waived by  the  landlord's  permitting  the
tenant  to   remain  in  possession  an  entire  year  after  the
expiration of  the notice,  notwithstanding the tenant held by an
improving lease, that is, to clear and fence the land and pay the
taxes. 1  Binn. 333.  In cases,  however, where  the act  of  the
landlord cannot be qualified, but must of necessity be taken as a
confirmation of  the tenancy, as if he distrain for rent accruing
after the  expiration of  the notice, or recover in an action for
use and  occupation, the notice of course will be waived. Adam on
Ej. 144;  1 H. BI. 311.

 NOTING.  The name  of the  minute made  by a notary on a bill of
exchange, after  it has been presented for acceptance or payment,
consisting of  the initials  of his  name, the  date of  the day,
month ana year when such presentment was made, and the reason, if
any has been assigned, for nonacceptance or non-payment, together
with his charge. The noting is not indispensable, it being only a
part of the protest;  it will not supply the protest. 4 T. R. 175
Chit. on Bills, 280, 398. See Protest.

 NOTORIETY, evidence. That which is generally known.

 2.  This notoriety  is of  fact  or  of  law.  In  general,  the
notoriety of  a fact  is not sufficient to found a judgment or to
rely on its truth;  1 Ohio Rep. 207;  but there are some facts of
which, in  consequence of  their notoriety,  the court  will, suo
motu, take  cognizance;   for example,  facts stated  in  ancient
histories;   Skin. 14;   1  Ventr. R.  149;  2 East, Rep. 464;  9
Ves. jr.  347;   10 Ves.jr.  854;   8 John. Rep. 385;  1 Binn. R.
399;   recitals in statutes;  Co. Lit. 19 b;  4 M. & S. 542;  and
in the  law text  books;   4 Inst.  240;   2 Rags.  313;  and the
journals of  the legislatures,  are considered  of such notoriety
that they need not be otherwise proved.

 3.  The courts of the United States take judicial notice of the,
ports and  waters of  the United  States, in, which the tide ebbs


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and flows.  3 Dall.  297;   9 Wheat. 374;  10 Wheat. 428;  7 Pet.
342. They  take like  notice of  the boundaries,  of the  several
states  and   judicial  districts.   It   would   be   altogether
unnecesrary, if  not absurd,  to prove  the fact  that London  in
Great Britain  or Paris in France, is not within the jurisdiction
of an American court, because the fact is notoriously known.

 4.  It is difficult to say what will amount to such notoriety as
to render any other proof unnecessary. This must depend upon many
circumstances;   in one  case, perhaps upon the progress of human
knowledge in the fields of science;  in another, on the extent of
information on  the state  of foreign  countries, and in all such
instances upon  the accident  of  their  being  little  known  or
publicly communicated.  The notoriety of the law is such that the
judges are  always  bound  to  take  notice  of  it;    statutes,
precedents and  text books  are therefore  evidence, without  any
other proof  than, their production. Gresley, Ev. 293. The courts
of the  United States  take  judicial  notice  of  all  laws  and
jurisprudence of  the  several  states  in  which  they  exercise
original or  appellate jurisdiction.  9 Pet.  607,  624.  5.  The
doctrine of  the civil and canon laws is similar to this. Boehmer
in tit. 10, de probat. lib. 2, t. 19, n. 2;  Mascardus, de probat
conclus. 1106,  1107, et  seq.;   Menock. de  praesumpt. lib.  1,
quaest. 63,  &c.;   Toullier Dr.  Civ. Frau. liv. 3, c. 6, n. 13;
Diet. de Jurisp. mot Notoriete;  1 Th. Co. Lit. 26, n. 16;  2 Id.
63, n.  A;  Id. 334, n. 6;  Id. 513, n. T 3;  9 Dana, 23 12 Verm.
178;  5 Port. 382;  1 Chit. PI. 216, 225.

 NOVA CUSTOMA. The name of an imposition or duty in England. Vide
Antiqua;  Customs.

 NOVA  STATUTA. New  statutes. The  name given  to  the  statutes
commencing with the reign of Edward III. Vide Vetera Statuta.

 NOVAE NARRATIONES. The title of an ancient English book, written
during the  reign of  Edward III. It consists of declarations and
some other pleadings.

 NOVATION,  civil law. 1. Novation is a substitution of a new for
an old  debt. The  old  debt  is  extinguished  by  the  new  one
contracted in  its stead;   a  novation  may  be  made  in  three
different ways, which form three distinct kinds of novations.

 2.  The first takes place,  without the intervention  of any new
person, where  a debtor  contracts  a  new  engagement  with  his
creditor, in  consideration of  being liberated  from the former.
This kind  has no  appropriate name,  and is  called  a  novation
generally.

 3. The second is that which takes place by the intervention of a
new debtor,  where another  person becomes  a debtor instead of a
former debtor,  and is  accepted by  the creditor,  who thereupon
discharges the  first debtor.  The person  thus rendering himself
debtor for  another, who  is in consequence discharged, is called
expromissor;  and this kind of novation is called expromission.


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 4. The third kind of novation takes place by the intervention of
a  new  creditor  where  a  debtor,  for  the  purpose  of  being
discharged from his original creditor, by order of that creditor,
contracts some  obligation in favor of  a new creditor.  There is
also a  particular kind  of novation  called a delegation.  Poth.
Obl. pt. 3, c. 2, art. 1. See Delegation.

 5.-2.  It is  a settled principle of the common law, that a mere
agreement to  substitute any  other thing in lieu of the original
obligation is  void, unless  actually carried  into execution and
accepted as  satisfaction.  No action can  be maintained upon the
new agreement,  nor can  the agreement be pleaded as a bar to the
original demand.  See Accord.  But where  an agreement is entered
into by  deed, that deed gives, in itself, a substantive cause of
action, and  the giving  such deed  may be  sufficient accord and
satis faction  for a  simple contract debt. 1 Burr. 9;  Co. Litt.
212, b.

 6.  The general rule seems to be that if one indebted to another
by simple contract, give his creditor a promissory note, drawn by
himself, for the same sum, without any new consideration, the new
note shall  not be  deemed a  satisfaction of  the original debt,
unless so  intended and  accepted by  the creditor.  15  Serg.  &
Rawle, 162;   1  Hill's N. Y. R. 516;  2 Wash. C. C. Rep. 191;  1
Wash. C. C. R. 156, 321;  2 John. Cas. 438;  Pet. C. C. Rep. 266;
2 Wash.  C. C.  R. 24, 512;  3 Wash. C. C. R. 396:  Addis. 39;  5
Day, 511;   15  John. 224;   1 Cowen, 711;  see 8 Greenl. 298;  2
Greenl. 121;  4 Mason, 343;  9 Watts, 273;  10 Pet. 532;  6 Watts
& Serg.  165, 168.  But if  he transfer the note he cannot sue on
the original  contract  as  long  as  the  note  is  out  of  his
possession. 1  Peters' R. 267. See generally Discharge;  4 Mass..
Rep. 93;   6  Mass. R.  371;  1 Pick. R. 415;  5 Mass. R. 11;  13
Mass. R.  148;   2 N. H. Rep. 525;  9 Mass. 247;  8 Pick. 522;  8
Cowen, 390;   Coop.  Just. 582;  Gow. on Partn. 185;  7 Vin. Abr.
367;   Louis. Code, art. 2181 to 2194;  Watts & S. 276;  9 Watts,
280;   10 S.  R. 807;  4 Watts, 378;  1 Watts & Serg. 94;  Toull.
h. t.;   Domat,  h. t.;   Dalloz. Dict. h. t.;  Merl. Rep. h. t.;
Clef des  Lois Romaines, h. t.;  Azo & Man. Inst. t. 11, c. 2, SS
4;  Burge on Sur. B. 2, c. 5, p. 166.

 NOVEL ASSIGNMENT. Vide New Assignment.

 NOVEL DISSEISIN. The name of an old remedy which was given for a
new or recent disseisin.

 2. When tenant in fee simple, fee tail, or for term of life, was
put out, and digseised of his lands or tenements, rents, find the
like;  he might sue out a writ of assise or novel disseisin;  and
if, upon  trial, he could prove his title, and his actual seisin,
and the  disseisin by the present tenant, be was entitled to have
judgment to  recover  his  seisin  and  damages  for  the  injury
sustained. 3 Bl. Com. 187. This remedy is obsolete.

 NOVELLAE  LEONIS. The  ordinances of the emperor Leo, which were
made from  the year  887 till  the year 893, are so called. These
novels changed  many rules  of the Justinian law. This collection
contains one  hundred and  thirteen novels, written originally in
Greek,  and  afterwards,  in  1560,  translated  into  Latin,  by
Agilaeus. - .


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 NOVELS,  civil law. The name given to some constitutions or laws
of some  of the  Roman emperors;   this name was so given because
they were  new or  posterior to  the laws  which they  had before
published. The  novels were  made to  supply what  bad  not  been
foreseen in  the preceding laws, or to amend or alter the laws in
force.

 2. Although the novels of Justinian are the best known, and when
the word  novels only  is mentioned,  those of Justinian are gave
the name of novels to his constitution and laws. Some of the acts
of Theodosius,  Valentinien, Leo, Severus, Anthemius, and others,
were, also  called novels.  But the  novels of  the emperors  who
preceded Justinian  bad not the force of law, after the enactment
of the  law by  order of  that emperor.  Those  novels  are  not,
however, entirely  useless, because  the code of Justinian having
been composed mainly from the Theodosian code and the novels, the
latter frequently  remove doubts  which arise on the construction
of the code. The novels of, Justinian form the fourth part of the
Corpus Juris  Civilis. They are directed either to some, officer,
or an  archbisbop or  bishop, or  to some  private individual  of
Constantinople but  they all  had the force and authority of law.
The number  of the  novels is  uncertain. The  118th novel is the
foundation and  groundwork of the English statute of distribution
of intestate's effects, which has been copied into many states of
the Union. Vide 1 P. Wms. 27;  Pr. in Chan. 593

 NOVUS  HOMO. A new man;  -this term, is applied to a man who has
been pardoned of a crime, by which he is restored to society, and
is rebabilitated.

 NOXAL  ACTTON, civil  law. A  personal, arbitrary,  and indirect
action in  favor of  one who  has been  injured by  the slave  of
another, by  which the owner or master of the slave was compelled
either to  pay the damages or abandon the slave. Vide Abandonment
for torts, and Inst. 4, 8;  Dig. 9, 4;  Code, 3, 41.

 NUBILIS,  civil law.  One who  is of a proper age to be married.
Dig. 32,51.

 NUDE.  Naked. Figuratively,  this word  is  applied  to  various
subjects.

 2.  A nude  contract, nudum  pactum, q.  v.) is  one  without  a
consideration;   nu de  matter, is  a bare  allegation of a thing
done, without any evidence of it.

 NUDE MATTER. A bare allegation unsupported by evidence.

  NUDUM   PACTUM,  contracts.   A   contract   made   without   a
consideration,;   it is  called a nude or naked contract, because
it is  not clothed  with the  consideration required  by law,  in
order to  give an  action. 3  McLean, 330;   2  Denio,  403;    6
Iredell, 480;   1  Strobh. 329;  1 Kelly, 294;  1 Dougl. Mich. R.
188.


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 2.  There are  some contracts  which, in  consequence  of  their
forms, import  a consideration,  as sealed instruments, and bills
of exchange,  and promissory  notes,  which  are  generally  good
although no consideration appears.

 3. A nudum pactum may be avoided, and is not binding.

 4.  Whether the agreement be verbal or in writing, it is still a
nude pact.  This has  been decided in England, 7 T. R. 350, note;
7 Bro. P. C. 550;  and in this country;  4 John. R. 235;  5 Mass.
R. 301,  392;   2 Day's R. 22. But if the contract be under seal,
it is  valid. 2  B. &  A. 551. It is a rule that no action can be
maintained on  a naked  contract;  ex nudopacto non oritur actio:
2 Bl. Com. 445;  16 Vin. Ab. 16.

 5.  This term is borrowed from the civil law, and the rule which
decides upon  the nullity  of its effects, yet the common law has
not;   in any  degree been influenced by the notions of the civil
law, in  defining what constitutes a nudum pactum. Dig. 19, 5, 5.
See on this subject a learned note in Fonbl. Eq. 335, and 2 Kent,
Com. 364.  Toullier defines  nudum pactum  to be an agreement not
executed by  one of  the parties, tom. 6, n. 13, page 10. Vide 16
Vin. Ab.  16;  1 Supp. to Ves. jr. 514;  3 Kent, Com. 364;  1 it.
Pr. 113;  8 Ala. 131;  and art. Consideration.

 NUISANCE, crim. law, torts. This word means literally annoyance;
in law,  it signifies,  according to  Blackstone, " anything that
worketh hurt, inconvenience, or damage." 3 Comm. 216.

 2. Nuisances are either public or common, or private nuisances.

 3.-1.  A public  or common  nuisance is such an inconvenience or
troublesome offence,  as annoys  the whole  community in general,
and not  merely some particular person. 1 Hawk. P. C. 197;  4 Bl.
Com. 166-7.  To constitute  a Public nuisance, there must be such
'a number  of persons  annoyed, that the offence can no longer be
considered a  private nuisance:  this is a fact, generally, to be
judged of by the jury. 1 .Burr. 337;  4 Esp. C. 200;  1 Str. 686,
704;   2 Chit.  Cr. Law,  607, n.  It is difficult to define what
degree of  annoyance is  necessary to  constitute a  nuisance. In
relation to  offensive trades,  it seems  that when  such a trade
renders the enjoyment of life and property uncomfortable, it is a
nuisance;  1 Burr. 333;  4 Rog. Rec. 87;  5 Esp. C. 217;  for the
neighborhood have a right to pure and fresh air. 2 Car. & P. 485;
S. C. 12 E. C. L. R. 226;  6 Rogers' Rec. 61.

 4.  A thing  may be  a nuisance in one place, which-is not so in
another;   therefore the  situation or  locality of  the nuisance
must be  considered. A  tallow chandler  seeing up  his  baseness
among other  tallow chandlers,  and increasing the noxious smells
of the  neighborhood, is  not guilty  of setting  up a  nuisance,
unless the  annoyance is  much increased  by the new manufactory.
Peake's Cas.  91. Such  an establishment might be a nuisance-in a
thickly populated  town of merchants and mechanics, where Do such
business was carried on.


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 5. Public nuisances arise in consequence of following particular
trades, by  which the air-is rendered offensive and noxious. Cro.
Car. 510;   Hawk. B. 1, c. 755 s. 10;  2 Ld. Raym. 1163;  1 Burr.
333;  1 Str. 686. From-acts of public indecency;  as bathing in a
public river,  in sight  of the  neighboring houses;  1 Russ. Cr.
302;  2 Campb. R. 89;  Sid. 168;  or for acts tending to a breach
of the  public peace,  as for  drawing a number of persons into a
field for  the purpose  of pigeon-shooting, to the disturbance of
the neighborhood;  3 B. & A. 184;  S. C. 23 Eng. C. L. R. 52;  or
keeping a disorderly house;  1 Russ. Cr. 298;  or a gaming house;
1 Russ.  Cr. 299;   Hawk  . b. 1, c. 75, s. 6;  or a bawdy house;
Hawk. b.  1, c. 74, s. 1;  Bac. Ab. Nuisance, A;  9 Conn. R. 350;
or a  dangerous animal, known to be such, and suffering him to go
at large, as a large bull-dog accustomed to bite people;

 4  Burn's, Just.  678;  or exposing a person having a contagious
disease, as the smallpox, in public;  4 M. & S. 73, 272;  and the
like.

 6.-2.  A private  nuisance is  anything  done  to  the  hurt  or
annoyance of the lands, tenements, or hereditaments of another. 3
Bl. Com. 1215;  Finch, L. 188.

 7.  These are  such as are injurious to corporeal inheritance's;
as, for  example, if  a man should build his house so as to throw
the rain  water which  fell on it, on my land;  F. N. B. 184;  or
erect his.  building, without right, so as to obstruct my ancient
lights;  9 Co. 58;  keep hogs or other animals so as to incommode
his neighor and render the air unwholesome. 9 Co. 58.

 8.  Private nuisances  may  also  be  injurious  to  incorporeal
hereditaments. If,  for example,  I have  a  way  annexed  to  my
estate, across  another man's land, and he obstruct me in the use
of it,  by plowing it up, or laying logs across it, and the like.
F. N. B. 183;  2 Roll. Ab. 140.

 9.  The remedies  for a  public nuisance  are by  indicting  the
party. Vide,  generally, Com.  Dig. Action  on  the  case  for  a
nuisance;   Bac. Ab.  h. t.;   Vin.  Ab. h. t.;  Nels. Ab. h. t.;
Selw. N.  P. h. t.;  3 Bl. Com. c. 13 Russ. Cr. b. 2, c. 30;  1 0
Mass. R. 72 7 Pick. R. 76;  1 Root's Rep. 129;  1 John. R. 78;  1
S. &  R. 219;   3 Yeates' R. 447;  3 Amer. Jurist, 85;  3 Harr. &
McH. 441;   Rose.  Cr. Ev.  h. t.;   Chit.  Cr. L.  Index, b. t.;
Chit. Pr.  Index, b.  t., and vol. 1, p. 383;  Bouv. Inst. Index,
h. t.

 NUL,  law French.  A barbarous  word which  means  to  convey  a
negative;  as, Nul tiel record, Nul tiel award.

 NUL AGARD. No award. A plea to an action on an arbitration bond,
when the  defendant avers  that there  was no legal award made. 3
Burr. 1730;  2 Stra. 923.

 NUL  DISSEISIN, pleading. No disseisin. A plea in a real action,
by which  the defendant denies that there was any disseisin it is
a species of the general issue.

 NUL TIEL RECORD, pleading. No such record 2. When a party claims


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to recover  on the evidence of a record, as in an action on scire
facias, or  when he sets up his defence on matter of record, as a
former acquittal or former recovery, the opposite party may plead
or, reply  nul tiel  record, there  is no  such record;  in which
case the issue thus raised is called an issue of nul tiel record,
and it  is tried  by the  court by the inspection, of the record.
Vide 1  Saund. 92,  n. 3 12Vin. Ab.188;  1 Phil. Ev. 307,8;  Com.
Dig. Bail,  R. 8  - Certiorari, A l Pleader, 2 W 13, 38 - Record,
C;  2 McLean, 511;  7 Port. 110;  1 Spencer, 114.

 NUL TORT, pleading No wrong. 2. This is a plea to a real action,
by which  the defendant denies that he committed any wrong. It is
a species of general issue.

 NUL  WASTE, pleading.  This is the general issue in an action of
waste. Co.  Entr. 700  a, 708  a. The  plea of,  nul waste admits
nothing, but puts the whole declaration in issue;  and in support
of this  plea the  defendant may  give in evidence anything which
proves that  the act  charged is no waste, as that it happened by
tempest, lightning, and the like. Co. Litt. 283 a;  3 Saund. 238,
n. 5.

 NULL.  Properly, that  which does not .exist;  that which is not
in the  nature of things. In a figurative sense it signifies that
which has  no more  effect than  if it did not exist. 8 Toull. n.
320.

 NULIA  BONA. The  retum made  to a  writ of fieri facias, by the
sheriff, when  he has  not found  any goods  of the  defendant on
which he could levy. 3 Bouv. Inst. n. 3393.

 NULLITY. Properly, that which does not exist;  that which is not
properly in  the nature of things. In a figurative sense, and  in
law, it  means that  which has  no more effect than if it did not
exist, and  also the  defect which  prevents it  from having such
effect. That  which is  absolutely void.  2. It  is a yule of law
that what  is absolutely  null produces no effects whatever;  as,
if a  man bad a wife in full life, and both aware of the fact, he
married another  woman, such  second marriage  would be  nun  and
without any  legal effect.  Vide Chit,  Contr. 228;   3 Chit. Pr.
522;   2 Archb.  Pr. K.  B. 4th  edit. 888;  Bayl. Ch. Pr. 97. 3.
Nullities have  been divided into absolute and relative. Absolute
nullities are  those which may be insisted upon by any one having
an interest  in rendering  the act, deed or writing null, even by
the public authorities, as a second marriage while the former was
in full  force. Everything  fraudulent is null and void. Relative
nullities can be invoked only by those in whose favor the law has
been established,  land, in fact, such power is less a nullity of
the act  than a  faculty which one or more persons have to oppose
the validity  of the  act.   4. The principal causes of nullities
are, 1.  Defect of  form;  as, for example, when the law requires
that a  will of land shall be attested by three witnesses, and it
is on attested by two. Vide Will.

 5.-2. Want of will;  as, if a man be compelled to execute a bond
by duress, it is null and void. Vide Duress.


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 6.-3.   The  incapacities of  the parties;   as  in the cases of
persons non  compos mentis, of married women's contracts, and the
like.

 7.-4.  The want  of consideration  in simple  contracts;   as  a
verbal promise without consideration.

 8.-5.  The want  of recording,  when the  law requires  that the
matter should be re- corded;  as, in the case of judgments.

 9.-6.  Defect of  power in the party who entered into a contract
in behalf of another;  as, when an attorney for a special purpose
makes an  agreement for  his principal  in  relation  to  another
thing. Vide Attorney;  Authority.

 10. - 7. The loss of a thing which is the subject of a contract;
as, when A sells B horse, both supposing him to be alive, when in
fact he  was dead.  Vide Contract;  Sale. Vide Perrin, Traite des
Nullites;  Henrion, Pouvoir Municipal, liv. 2, c. 18;  Merl. Rep.
h. t.;  Dall. Diet. h. t. See art. Void.

 NULIUS FILIUS. The son of no one;  a bastard.

 2. A bastard is considered nullius filius  as far as regards his
right inherit.  But the  rule of nullius filius does not apply in
other respects.

 3.  The mother  of a  bastard, during  its age  of  nurture,  is
entitled to  the custody  of her  child, and is bound to maintain
it. 6 S. & R. 255;  2 John. R. 375;  15 John. R. 208;  2 Mass. R.
109;   12 Mass.  R. 387,  433;  1 New Rep. 148;  sed vide 5 East,
224 n.

 4.  The putative  father, too, is entitled to the custody of the
child as  against all but the mother. 1, Ashm. 55. And, it seems,
that the  putative father may maintain an action, as if his child
were legitimate,  for marrying him without his consent, contrary.
to law.  Addis. 212.  See Bastard;   Child;   Father;    Mother;,
Putative Father.

 NULLUM  ARBITRIUM, pleading.  The name of a plea to an action on
an arbitration  bond for  not fulfilling  the award, by which the
defendant asserts that there is no award.

 NULLUM  FECERUNT ARBITRIUM.  The name  of a plea to an action of
debt upon an obligation for the performance of an award, by which
the defendant  denies that  he submitted to arbitration, &c. Bac.
Ab. Arbitr. &c. G.

 NUMBER.  A collection  of units. 2. In pleading, numbers must be
stated truly,  when alleged  in the  recital of a record, written
instrument, or  express contract.  Lawes' PI.  48;   4 T. R. 314;
Cro. Car. 262;  Dougl. 669;  2 Bl. Rep. 1104. But in other cases,
it is  not in general requisite that they should be truly stated,
because they  are not  required to  be strictly  proved. If,  for
example, in  an action  of  trespass  the  plaintiff  proves  the
wrongful taking  away of  any part of the goods duly described in


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his declaration,  he is  entitled to  recover pro tanto. Bac. Ab.
Trespass, I 2 Lawes' PI. 48.

 3.  And sometimes,  when the subject to be described is supposed
to  comprehend   a  multiplicity   of  particulars,   a   general
description is  sufficient. A  declaration in trover alleging the
conversion of  " a  library  of  books"'  without  stating  their
number, titles, or quality, was held 'to be sufficiently certain;
3 Bulst.  31;   Carth. 110;   Bac.  Ab. Trover,  F 1;   and in an
action for  the loss  of goods, by burning the plaintiff's bouse,
the articles  may be  described by  the simple  denomination of "
goods" or  " divers  goods."   1 Keb.  825;  Plowd. 85, 118, 123;
Cro. Eliz. 837;  1 H. Bl. 284.

 NUNC  PRO TUNC,  practice. This  phrase, which signifies now for
then, is  used to  express that a thing is done at one time which
ought to  have been  performed at another. Leave of court must be
obtained to  do things  nunc pro  tunc, and  this is  granted  to
answer the  purposes of  justice, but  never to  do  injustice  A
judgment nunc  pro tunc  can be  entered only  when the delay has
arisen from  the act  of the  court. 3 Man. Gr. & Sc. 970. Vide 1
V.. &  B. 312;   1  Moll. R. 462;  13 Price, R. 604;  1 Hogan, R.
110.

 NUNCIO.  The name  given to  the Pope's  ambassador. Nuncios are
ordinary or  extraordinary;   the  former  are  sent  upon  usual
missionas, the latter upon special occasions.

 NUNCIUS, international law, A messenger, a minister;  the pope's
legate, commonly  called a  nuncio. It  is used to express that a
will or  testament. has  been made  verbally, and not in writing,
Vide Testament  nuncupative;   Will, nuncupative;   1 Williams on
Exec. 59;   Swinb.  Index, h.  t.;   Ayl. Pand. 359;  1 Bro. Civ.
Law, 288;   Roberts  on Wills, h. t.;  4 Kent, Com. 504;  2 Bouv.
Inst. n. 436.

  NUNQUAM   INDEBITATUS,  pleading.   A  plea  to  an  action  of
indebitatus assumpsit,  by which the defendant asserts that he is
not indebted  to the plaintiff. 6 Carr. & P. 545 S. C. 25 English
Com. Law Rep. 535;  1 Mees. & Wels. 542, 1 Q. B. 77.

 NUPER  OBIIT, practice.  He or  she lately  died. The  name of a
writ, which  in the  English law,  lies for  a sister co-heiress,
dispossessed by  her coparcener  of lands  and tenements, whereof
their father,  brother, or  any common ancestor died seised of an
estate in fee simple. Termes de la Ley, h. t.;  F. N . B. 197.

 NURTURE.  The act of taking care of children and educating them:
the right  to the  nurture of  children generally  belongs to the
father till  the child shall arrive at the age of fourteen years,
and not  longer. Till  then, he is guardian by nurture. Co. Litt.
38 b.  But in  special cases  the mother will be preferred to the
father;   5 Binn. R. 520;  2 S. & R. 174;  and after the death of
the father,  the mother  is guardian  by nurture. Fl. 1. 1, c. 6;
Com. Dig. Guardian, D.

 NURUS. A daughter-in-law. Dig. 50, 16, 50.


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