MORTMAIN ACTS-continued. (4 & 5 Vict. c. 38, s. 10, and 36 & 37 Vict. c. 49); the gift in any one case not exceeding one acre of land; and (b.) (Judging at least from the statutory form of the conveyance, see, s. 13 of the Act.) In the case of the gift of land not exceeding one acre in any one case in favour of any of the following objects;Institutions for the promotion of science, or of literature, or of the fine arts; Institutions for the instruction of braries and reading-rooms; Public museums; Natural history collections; Mechanical and philosophical inventions, instruments, and designs. See the Literary and Scientific Institutions Act, 1854 (17 & 18 Vict. c. 112). (3.) The necessity to indent the deed of gift was altogether abolished by the Act 24 Vict. c. 9. (4.) The necessity that the deed should be delivered twelve calendar months before the death of the donor remains as a general rule, but has been abolished in the following cases:— (a.) In the case of a gift of land as a site for a poor school, church, chapel, or meeting-house, or for the residence of the minister, master, or mistress thereof (7 & 8 Vict. c. 37, s. 3, and 36 & 37 Vict. c. 49); the gift in any one case not exceeding one acre of land; (b.) In the case of the gift of land not exceeding one acre in any one case in favour of any of the following objects :Institutions for the promotion of science, or of literature, or of the fine arts; Institutions for the instruction of adults, or the diffusion of useful knowledge; Foundation and maintenance of li braries and reading-rooms; Natural history collections; Mechanical and philosophical inventions, instruments and designs. See the Literary and Scientific Institutions Act, 1854, supra; and (c.) In the case of a gift of land for the recreation of adults, or for the playground of children, MORTMAIN ACTS-continued. See the Recreation Grounds Act, 1859 (22 Vict. c. 27). On the other hand, where under the Public Parks, Schools, and Museums Act, 1871 (34 Vict. c. 13), the gift of lands is made either by deed or by will, the necessity for execution of the deed twelve calendar months before the death of the grantor is retained, and the like necessity is enacted in the case of such gift being made by will (8. 5). (5.) The requisite of inrolment in the Court of Chancery within six months from the execution of the deed is in general preserved, but it has been removed in the following case, viz.;— In the case of a gift of lands for the recreation of adults, or for the playgrounds of children. See the Recreation Grounds Act, 1859, supra. On the other hand, where under the Public Parks, Schools, and Museums Act, 1871 (supra), the gift of lands is made either by deed or will, the inrolment thereof must be made within six calendar months after the time the same comes into operation, such inrolment being, however, made in the books of the Charity Commissioners. See title CHARITY COMMISSIONERS. (6.) The requisite, that the grant should take effect in possession immediately from the execution of the deed, has been slightly relaxed by the stat. 26 & 27 Vict. c. 106, which has enacted that if such gift take effect within one year from the date of the instrument it shall be deemed to take effect in possession immediately; and (7.) The irrevocability of the gift remains as a general rule, but under the recent statutes mentioned above, it is a general rule that where any of the lands given for the popular uses specified above, cease to be employed for such uses, they shall revert to the donor, or his representatives, at the time they so cease to be used; also, the requisite excluding reservations in favour of the donor remains as a general rule, but has been exploded in the following cases : (a.) In all cases of the reservation of a peppercorn or nominal rent only (24 Vict. c. 9); (b.) In all cases of the reservation of any mines or minerals or any easement (24 Vict. c. 9); (c.) In all cases of any covenants or conditions as to erections or repairs, &c. (24 Vict. c. 9); (d.) In all cases of the apparent gift being in fact a purchase, and the consideration money therefore is reserved, partly or wholly, in the form of a rent-charge in lieu of a MORTMAIN ACTS-continued. gross sum (24 Vict. c. 9, and 27 Vict. c. 13); and (e.) In all cases of the gift of land, either for the recreation of adults, or for the playgrounds of children. See the Recreation Grounds Act, 1859, supra. And, in general, there is a provision in all the statutes of Victoria respecting gifts for poor schools, churches, and such like, that the land shall revert to the grantor if it cease to be used for the purpose for which the same was originally granted. MORTUARY. A mortuary is that beast or other moveable chattel which, upon the death of the owner thereof, by the custom of some places, becomes due to the parson, vicar, or rector of the parish in which the person so dying resided, in lieu or satisfaction of tithes or other ecclesiastical offerings which such party may have forgotten or have neglected to pay while alive. 21 H. 8, c. 6; Les Termes de la Ley. MOTION. An application to the Court by the plaintiff or defendant in an action, or by the counsel for either, in order to obtain some rule or order of Court which may become necessary in the course of the proceedings; and the act of making such an application is termed moving the Court. The word also signifies instance, desire, will, &c. Thus a person is said to do a thing of his own motion, i.e., voluntarily, without being required to do it. See also the next following titles. MOTION OF COURSE. Is a motion which is granted as a matter of course, and which, therefore, is not usually made in open Court, but is granted by the master or officer of the Court when the paper containing the direction to move is laid before him, with a barrister's signature attached. Almost everything that may be done on motion of course can also be done, and is ordinarily done, by petition of course at the Rolls. See that title; and 2 Dan. Ch. Pr. Appendix. MOTIONS IN PARLIAMENT--contd. of which notice has previously been given, as contradistinguished from "orders of the day," which latter are questions which the House has already agreed to consider, or has partly considered and adjourned for further consideration or debate. On an "order" day the orders have precedence of motions, and on a "motion" day the motions have precedence of orders; but in either case if the one can be disposed of in time, the House will proceed to the other. MOVEABLES. Moveable and immoveable is one of the commonest, because the most apparent and natural, of the modern divisions of things, as the subjects of property. It is not coincident, however, with the historical divisions which have obtained most extensively in ancient or in modern times, not agreeing with the Roman Law division into Res Mancipi and Res Nee Mancipi (agricultural and non-agricul tural) on the one hand, nor with the English Law division into lands and chattels, or real and personal property, on the other. For example, a leasehold house is an immoveable, and yet is personal property; and a dignity or title of honour is a moveable and yet is real property. Nevertheless, just as the division into Res Mancipi and Res Nec Mancipi gradually gave way before the industrial development of Roman greatness, so also the division into real and personal property is more and more giving way before the advancing diversities of English wealth. For example, a leasehold house is now for many purposes looked upon as land, and is even declared to be such in the interpretation clause of most modern statutes. But the division into moveable and immoveable, finding its basis in nature, promises to be permanent; and it may grow to be as fertile in consequences as the older divisions have been. MURDER-continued. peace, with malice aforethought, either express or implied. Express malico is signified by one person killing another with a deliberate mind and formed design: and which formed design is evidenced by external circumstances discovering that inward intention; as by lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm. Implied malice is signified by one person's voluntarily killing another without any provocation; for when such deliberate acts are committed, the law implies or presumes malice to have urged the party to the commission of them, although no particular enmity can be proved (3 Inst. 4; 1 Hale, 455). And in case a person trespassing in pursuit of game fires at a bird, and, without any intention at all of doing so, hits and kills a man, that is murder, inasmuch as the act of poaching is felonious, and the felony therein couples itself to the death, and supplies the intention which was lacking. R. v. Crispe, 1 B. & Ald. 282. See also title MALICE. MUTE. A prisoner is said to stand mute when, being arraigned for treason or felony, he either makes no answer at all, or answers foreign to the purpose, or with such matter as is not allowable, and will not answer otherwise; or upon having pleaded not guilty, refuses to put himself upon the country. MUTINY ACT. An Act of Parliament to punish mutiny and desertion, and for the better regulation of the army, and their quarters. The Mutiny Act, properly so called, relates to the army only; the Marine Mutiny Act relates to the navy. Each Act is passed annually, the jealousy of the constitution for the individual's liberties being such as not to tolerate that such Acts, or the jurisdictions which they establish, should become perpetual or permanent. This necessity for their annual re-enactment secures the annual re-assembling of Parliament. MUTUAL CREDIT: See title SET-OFF. MUTUAL PROMISES. In a declaration in special assumpsit the plaintiff usually alleges that, in consideration that he, at the request of the defendant, had then promised the defendant to observe, perform, and fulfil all things in the agreement on his, the plaintiff's, part, the defendant promised the plaintiff that he would perform and fulfil all things in the said agreement on his, the defendant's, part to be observed and performed, which is thence termed the allegation or statement of mutual promises. lay for a lord when his villein had run away from him; it was directed to the sheriff, and commanded him to apprehend the villein, and to restore him together with his goods to the lord. But if a villein had tarried in a town or ancient demesne lands for the period of a year and a day without having been claimed by his lord, then the lord could not seize him in either of such places (Les Termes de la Ley). It was a writ of right raising the title of the lord, upon whom therefore the onus probandi was laid; and such a provision was also in favour of liberty, the proof of villenage, or neifty, going back as far as 1 Ric. 1. See also title VILLENAGE. NATURAL-BORN SUBJECTS. Those who are born within the dominions, or rather within the allegiance, of the King of England. See also title ALLEGIANCE. NATURALIZATION. The making a foreigner a lawful subject of the State, or, as it is sometimes termed, the king's natural subject. Formerly, an Act of Parliament was required in each particular case to naturalise an alien; the king by his letters patent might denizenise but not naturalise. However, by the 7 & 8 Vict. c. 66, which was a General Act, it was enacted that aliens of friendly states might become naturalised British subjects upon complying with the requisites of the Act. And now, by the Naturalization Act, 1870 (33 & 34 Vict. c. 14), further facilities of naturalization are afforded, and the important privilege of expatriation is conferred; also, the evil or inconvenience of a "double allegiance" is remedied. See also title ALLEGIANCE. NAVIGATION. The right of the public to navigate a public river is paramount to any right of property in the Crown, which never had the power, e.g., to grant a weir in obstruction of the navigation (Williams v. Willcox, 3 N. & P. 608). As to what is evidence of a public river, the flux and reflux of the tides is prima facie evidence of its being so; but the evidence is not conclusive, because a public right of navigation in such a river may have been extinguished either (a.) By legal means; e.g., an Act of Parliament, a writ of ad quod damnum (see that title), or an order NAVIGATION-continued. of commissioners of rivers; or (b.) By natural causes-e.g., a retreat of the sea or a deposit of silt and mud (Rex v. Montague, 6 D. & R. 616). A navigable river is a public highway for vessels at all times and states of the tide (Colchester (Mayor) v. Brooke, 7 Q. B. 339); and an obstruction to the navigation may be the subject either of an action or of an indictment, according to the circumstances. Similarly, the public have a right of user of a canal, which is an artificial navigable river, e.g., with boats propelled by steam power, if they do no injury to the canal beyond what would be occasioned by traction by horses. Case v. Midland Ry. Co., 5 Jur. (N. S.) 1017. NAVY: See title ARMY. NE EXEAT REGNO (that he leave not the kingdom). A writ which issues to restrain a person from leaving the kingdom. This writ is frequently resorted to in Equity when one party has an equitable demand against another, and that other is about to leave the kingdom; and it is only in cases where the intention of the party to leave can be shewn that the writ is granted. F. N. B.; Gray's Ch. Pr. 16. In pleading NEGATIVE PREGNANT. signifies the statement of a negative proposition in such a form as may imply or carry with it the admission of an aflirmative. Thus, in an action of trespass for entering the plaintiff's house, the defendant pleaded that the plaintiff's daughter gave him licence to do so, and that he entered by that licence; to which the plaintiff replied, that he did not enter by her licence. This replication was held to be a negative pregnant, inasmuch as it might imply or carry with it the admission that a licence was given, although the defendant did not enter by that licence; and the proposition would therefore, in the language of pleading, be said to be pregnant with that admission; viz., that a licence was given. A negative pregnant is one of those faults in pleading which fall within the rule that pleadings must not be ambiguous or doubtful in meaning. In the above instance the plaintiff should have denied either the entry by itself, or the licence by itself; for the effect of denying both together was to leave it doubtful whether he meant to deny the licence, or the fact of the defendant's entry by virtue of that licence. Steph. on Pl. 408, 409, 4th ed. NEGLIGENCE. Negligence producing damage to the plaintiff is in all cases a ground of action; but the question what shall be considered negligence for this purpose is a question for the jury, subject to NEGLIGENCE-continued. certain rules of law, or of common sense, according to which the measure of culpable negligence varies according as the circumstances of the cases differ. In all cases, the first point to settle is the amount or degree of diligence exigible from the defendant, for by means of that positive criterion, it is possible to ascertain in the next place the amount or degree of negligence on the defendant's part which will involve him in liability for the damage which has arisen. The rule is, that the negligence is inversely in proportion to the diligence. For example, if but slight diligence (levis diligentia) is exigible, then only gross negligence (crassa negligentia) amounting also to wilfulness or intentionality (dolus), will render the defendant liable, as is the case with gratuitous bailees, whether depositaries or mandatories. And, on the other hand, if extreme diligence (exacta diligentia) is exigible, then the slightest negligence (levis negligentia, or levis culpa) will in like manner render the defendant liable, as is the case with inn-keepers, carriers, and generally with paid bailees. But, subject to these rules, the question is one of fact; and the mode of proof varies from the most apparent case, in which the facts speak for themselves (res ipsa loquitur) condemning the defendant, into the least tangible case of all, in which the judge hesitates whether or not there is any question of negligence at all which he can submit to the jury. Then, occasionally, the plaintiff has by his own negligence contributed to the damage; and, before the jury can find for him, they must be persuaded upon the evidence that the defendant's negligence was such as that the damage would have arisen at all events although the plaintiff had been ever so diligent. NEUTRALITY. Is the condition in which a third nation is, when two other nations are at war with each other. The duties of a friendly neutrality have been considerably increased of late years, whence the Foreign Enlistment or Neutrality Act of 59 Geo. 3, c. 69, has been repealed, and a more stringent Neutrality Act, viz., the Foreign Enlistment Act, 1870 (33 & 34 Vict. c. 90), substituted in its place. Under that Act, which extends to all the Queen's dominions and the adjacent territorial waters, the penalty of fine and imprisonment, or of either, and with or without hard labour, is imposed upon any British subject enlisting without the licence of the Queen in the military or naval service of either belligerent, or agreeing to so enlist, or inducing others to NEUTRALITY-continued. so enlist, or leaving England with the intention to so enlist, or inducing others to embark with that intention, under a misrepresentation of the fact, or taking illegally enlisted persons on board, with a knowledge of the fact. And under the same Act, illegal ship-building and all particular acts assistant thereto, and all illegal expeditions generally, are subject to the like penalties, together with the forfeiture of the vessel or other materials of the expedition. NEW ASSIGNMENT. From the very general terms in which declarations are framed, the defendant is sometimes not sufficiently guided to the real cause of complaint, and is in consequence led to apply his plea to a different matter from that which the plaintiff had in view. In such cases, a plaintiff is obliged to resort, in his replication, to a mode of pleading termed a new assignment, for the purpose of setting the defendant right. A new assignment, as the phrase imports, is an instrument in which the plaintiff assigns afresh his ground of complaint with more certainty and particularity than he had previously done in the declaration, and distinguishes the true ground of complaint from that which the defendant in his plea had assumed it to be. Thus, in an action of trespass quare clausum fregit, for repeated trespasses, the declaration usually states that the defendant on divers days and times before the commencement of the suit broke and entered the plaintiff's close, and trod down the soil, &c., without setting forth more specifically in what parts of the close, or on what occasions, the defendant trespassed; now it might happen that the defendant claimed a right of way over a certain part of the close, and in exercise of that right had repeatedly entered and walked over it; and it may also happen that he has entered and trod down the soil, &c., on other occasions, and in parts out of the supposed line of way, and the plaintiff, not admitting the right claimed, may have intended to apply his action both to the one set of trespasses and the other. But as from the generality of the declaration it would be consistent to suppose that it referred only to his entering and walking in that part over which he claimed the right of way, the defendant would be entitled to suppose or assume that it referred, in fact, only to his entering and walking in that line of way. He might, therefore, in his plea, allege, as a complete answer to the whole complaint, that he had a right of way by grant, &c., over the said close; and if he did this, and the plaintiff confined himself in his replication to a denial of that plea, and the defendant at the trial NEW ASSIGNMENT-continued. proved a right of way as alleged, the plaintiff would be precluded from giving evidence of any trespasses committed out of the line or track over which the defendant thus appeared entitled to pass. In such case, therefore, the plaintiff's course would be, in his replication, both to deny the plea, and also to new assign, by alleging that he brought his action not only for those trespasses, supposed or assumed by the defendant, but also for others committed on other occasions, and in other parts of the close out of the supposed track or line of way over which the defendant so claimed a right to pass; and such a new assignment is usually called a new assignment extra viam. Steph. Pl. 247, 252; Bull. & Leake, Prec. in Plead., pp. 653-657. By the C. L. P. Act, 1852, s. 87, only one new assignment shall be pleaded to any number of pleas to the same cause of action; and such new assignment shall be consistent with and confined by the particulars (if any) delivered in the action, and shall state that the plaintiff proceeds for causes of action different from all those which the pleas profess to justify, or for an excess over and above what all the defences set up in such pleas justify, or both. By NEW TRIAL MOTION PAPER. the practice of the Courts motions for new trials must in general be made within the first four days of term; but when from pressure of business, or other like cause, the Courts have not had time to dispose of all the applications, it is the practice to have the names of the causes and of the counsel who are instructed to move therein put into a list, called the new trial motion paper; and the motions are then heard and disposed of on the following or some subsequent day, according to the seniority of counsel appointed to move therein. NEW TRIAL PAPER. A paper containing a list of causes in which rules nisi have been obtained for a new trial, or for entering a verdict in place of a nonsuit, or for judgment non obstante veredicto, or for otherwise varying or setting aside proceedings which have taken place at Nisi Prius. These are called on for argument in the order in which they stand in the paper, on days appointed by the judges for the purpose. NEXT FRIEND. An infant sues by his next friend (prochein ami) and defends by his guardian ad litem. Similarly a married woman where she has an interest conflicting with that of her husband, sues by her next friend (making her husband a defendant). The name of the next friend is always mentioned in the title of the |