A New Law Dictionary and Institute of the Whole Law

NEXT FRIEND-continued. cause or matter, and a written authority from the next friend must, in the case of a suit, be filed together with the bill (15 & 16 Vict. c. 86, s. 1). The next friend is responsible for the costs of the suit if unsuccessful.

NIGHT. As to what is reckoned night and what day, with reference to the offence of burglary, it seems to be the general opinion that if there be daylight, or crepusculum, enough begun or left to discern a man's face, that is considered day. And night is defined, or rather described, by some, to be when it is so dark that the countenance of a man cannot be discerned (1 Hale's P. C. 350). However, the arbitrary limit of 9 P.M. to 6 A.M. has been fixed as the period of night in prosecutions for burglary and larceny. 24 & 25 Vict. c. 96, s. 1.

NIHIL CAPIAT PER BREVE, or PER BILLAM (that he take nothing by his writ). The judgment given against a plaintiff either in bar of his action, or in abatement of his writ. Co. Litt. 363.

NIHIL, or NIL DEBET (he owes nothing). The plea to an action of debt on simple contract is commonly not indebted, or nil debet. However, now, by r. 11, T. T. 1853, "the plea of nil debet shall not be allowed in any action;" see Bull. & Leake, Prec. Pl. 462.

NIHIL, or NIL DICIT (he says nothing). When the plaintiff' in an action has stated his case in the declaration, it is incumbent on the defendant, within a prescribed time, to make his defence and to put in a plea, otherwise the plaintiff will be entitled to have judgment by default or nil dicit of the defendant.

See title JUDGMENT.

NIHIL, or NIL HABUIT IN TENEMENTIS. A plea to be pleaded in an action of debt only, brought by a lessor against a lessee for years, or at will, without deed. 2 Lil. Abr. 214.

NISI PRIUS (unless before). The nisi prius Courts are such as are held for the trial of issues of fact before a jury and one presiding judge. It is in these Courts that the various disputes and differences which daily arise between man and man, and which form the subject-matter of civil actions, are heard and determined. The circumstance of the nisi prius Courts taking cognizance of questions of fact only arising between man and man in his civil capacity, occasions them to be frequently mentioned in contradistinction to the criminal Courts, and to the Courts sitting in banc or banco for the hearing

NISI PRIUS-continued.

and determining questions of law. Thus, a judge may be said to be sitting in bone, or at nisi prius; in the one case he would, in company with three other learned judges, be hearing and determining ques tions of law, which have been raised for the opinion of the Court; in the other, he would be presiding at the trial of some question of fact which was to be submitted to the consideration of a jury. So at the assizes, a judge is said to be sitting in the nisi prius Court, as distinguished from the Crown Court, wherein the trial of prisoners takes place. The same distinction prevails when speaking of the peculiar qualifications of an advocate; thus an advocate is frequently said to be a good nisi prius lawyer, meaning thereby, that he possesses in an eminent degree that peculiar learning, and those mental qualifications, more particularly required to attain success in the conduct and management of trials at nisi prius. The origin of the phrase in this application of it is in the old form of pracipe to the sheriff commanding him to have the persons of the jury at Westminster on such and such a day"unless sooner" (nisi prius) the judge should go down himself to the country to try the case there.

NOLLE PROSEQUI (that he will not prosecute or follow up). A nolle prosequi is in the nature of an acknowledgment or undertaking by the plaintiff in an action to forbear to proceed any further either in the action altogether, or as to some part of it, or as to some of the defendants. A nolle prosequi is different from a non pros., for there the plaintiff is put out of Court with respect to all the defendants. If a plaintiff misconceives his action, or makes a mistake as to the party sued (as where he sues a feme covert, and she pleads coverture in bar, or the like), he may enter a nolle prosequi as to the whole cause of action, and proceed de novo in another action (2 Arch. Pract. 1512). If money be paid into Court, and the plaintiff determines on accepting that sum in satisfaction of the action, he may reply that he accepts the sum paid into Court in satisfaction of that part of the declaration to which the plea is pleaded; and if he does so, he must at the same time add a nolle prosequi as to the residue, otherwise the defendant may sign judgment of non pros. But if he accepts the sum in satisfaction of part only of his action, namely, of that part to which the plea of payment into Court is pleaded, then he must reply to the other pleas of the defendant. Day's Com. Law. Pract. 110.

NOMINATION TO A LIVING. The rights of nominating and of presenting to

NOMINATION TO A LIVING-contd. a living are distinct, and may reside in different persons. Presentation is the offering a clerk to the bishop. Nomination is the offering a clerk to the person who has the right of presentation. Thus, one seised of an advowson may grant to A. and his heirs that whenever the church becomes vacant, he will present such a person as A, or his heirs shall nominate. He who has the right of nomination is, to most purposes, considered as the patron of the church. Plowd. 529; Rog Ecc. Law, 5.

NON-AGE. Under twenty-one years of age in some cases, and under fourteen or twelve in others.

See titles AGE; INFANTS.

NON ASSUMPSIT (he hath not promised). The name of a plea which occurs in the action of assumpsit, by which the defendant denies that he undertook, or promised, to do the thing which the plaintiff in his declaration alleges that he did undertake and promise to do; and this plea operates as a denial, in point of fact, of the existence of any express promise of the fact alleged in the declaration, or of the matters of fact from which the promise alleged would be implied by law. Steph. on Plead. 170, 180.

NON ASSUMPSIT INFRA SEX ANNOS (he has not promised within six years). There are certain periods limited by law within which actions must be brought. In an action of assumpsit the period is six years; if, therefore, any person commences such an action for anything which did not accrue or happen within such period of six years, the defendant may plead non assumpsit infra sex annos, i.e., he made no such promise within six years, which plea is an effectual bar to the complaint; and the defendant in such case is said to plead the Statute of Limitations.

NON CEPIT (he has not taken). A plea which occurs in the action of replevin, in which action the plaintiff alleges in his declaration that the defendant took certain cattle or goods of the plaintiff in a certain place called, &c.," and this plea states that he did not take the said cattle or goods "in manner and form as alleged," which involves a denial both 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. on Plead. 185.

NON COMPOS MENTIS. Not master of his wits; in other words, of unsound mind.

See title LUNACY.

NON CONSTAT (it does not appear). It is by no means clear or evident; a phrase used in general to state some conclusion as not following, although it seems, prima fucie, to follow.

NON DAMNIFICATUS (not damnified or hurt). This is a plea in an action of debt on an indemnity bond, or bond conditioned "to keep the plaintiff harmless and indemnified," &c.; it is in the nature of a plea of performance, being used where the defendant means to allege that the plaintiff has been kept harmless and indemnified according to the tenor of the condition. Steph. on Plead. 388.

NON DECIMANDO (not paying titles). A custom or prescription of de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them.

See also title FINE.

NOTE, PROMISSORY: See title PROMISSORY NOTE.

NOT GUILTY. A plea which occurs in the action of trespass or trespass on the case ex delicto, by which the defendant denies being guilty of the trespasses, &c., laid to his charge in the plaintiff's declaration. When a defendant pleads not guilty in a criminal charge he thereby puts himself upon trial, and is entitled to all the chances of escape from conviction which the rules of law afford him in case of the

NOT GUILTY-continued. evidence being doubtful, or from any other cause, notwithstanding he may in fact have committed the act which is usually taken to constitute the offence. An accused person is, therefore, in all cases justified in pleading not guilty to a criminal charge. On the other hand, in civil cases, when a defendant pleads not guilty he is said to plead the general issue, whereby he is taken to deny the gist of the action only. For example, in actions for torts the plea of not guilty operating as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant; it follows that in an action for a nuisance to the occupation of a house by carrying on an offensive trade the plea of not guilty will operate as a denial only that the defendant carried on the alleged trade in such a way as to be a nuisance to the occupation of the house, but will not operate as a denial of the plaintiff's occupation of the house. And again, in an action for slander of a plaintiff in his office, or profession, or trade, the plea of not guilty will operate as a denial of speaking the words, of speaking them maliciously and in the defamatory sense imputed, and with reference to the plaintiff's office, or profession, or trade, but will not operate as a denial of the fact of the plaintiff holding the office, or profession, or trade alleged. See Smith's Action at Law, p. 533.

NOTICE. This is a head of equity of great importance in the two principal respects following, namely:

(1.) As perfecting the assignment of choses in action; and

(2.) As affecting or not affecting subsequent interests.

But in regard to both these branches notice may be either actual or constructive, with this difference, that actual notice is the more common of the two in respect of the former branch, and constructive notice the more common in respect of the latter. For, firstly, actual notice is any express intimation given by a person interested, or claiming to be interested, in the chose in action to the person having present control over it, on purpose to bind him as to such control, and thereby to complete, as far as possible, the rights of the person giving the notice. And, secondly, constructive notice is notice implied or inferred from the proof of surrounding circumstances, an insecure form of notice, which the person claiming a chose in action should in no case rely upon. Notice has been inferred from two states of circumstances in particular, viz., (1.) Where actual notice of some general charge has been

NOTICE-continued.

given, and if the fact had been inquired into, the person receiving such notice would have been naturally led on to notice of other things, but he has neglected all inquiry, wherefore of these latter he is taken to have had constructive notice; and (2.) Where the circumstances are such as shew the person charged with constructive notice to have wilfully, and not negligently merely, abstained from inquiry for the purpose of avoiding notice. For the first species of constructive notice see Biscoe v. Banbury (Earl) (1 Ch. Ca. 287); and for the second species, Birch v. Ellames, (2 Anstr. 427). And there is a third species of constructive notice arising from the relation of the parties, as being that of principal and agent, client and solicitor, and such like, where the transaction is either contemporaneous with, or shortly subsequent to, another transaction communicating notice (Fuller v. Bennett, 2 Hare, 394), the subject matter of the notice having been a material part of the earlier transaction. Wyllie v. Pollen, 32 L. J. (Ch.) N. S. 782.

Considering the subject of Notice in its two branches,-and, Firstly, Notice as perfecting the assignment of choses in action. In order that third parties may be bound it is necessary, with regard to a chose in action, to give notice to the person in whose hands it is, or when realising itself will be, such notice being, in the case of a chose in action which does not admit of actual delivery, precisely equiva lent in its effect to the actual delivery of a chattel in possession which admits of delivery (Ryall v. Rowles, 1 Ves. 348). Therefore,

(a.) In order to take a chose in action out of the order and disposition of the creditor in case of his bankruptcy it is necessary to give notice to the debtor. Ryall v. Rowles,

supra.

(b.) In the case of a policy of assurance notice must be given to the insurance office. Thompson v. Tomkins, 2 Dr. & Sm. 8.

(c.) In the case of an assignment of freight notice must be given to the charterer. Brown v. Tanner, L. R. 2 Eq. 806.

(d.) In the case of an assignment of a legacy, general or specific, the executors not having yet assented to it, notice to the executors must be given. Browne v. Savage, 4 Dr. 635.

(e.) In the case of an assignment of the costs of a suit not yet ordered to be paid notice should be given to the trustees or other the parties to whom they will be payable. Day v. Day, 1 D. & J. 144.

(f.) In the case of an assignment of shares in a company notice must be given to the company. Ex parte Boulton, 1 D.

NOTICE continued.

& J. 163; and see generally the cases of Dearle v. Hall, Loveridge v. Cooper, 3 Russ. 1, 30.

If such notice has been given, as soon as the assignee knows to whom the same is to be given, the assignee, if not otherwise in default, will not lose the benefit of it (Feltham v. Clark, 1 De G. & Sm. 307), upon the maxim, lex neminem cogit ad vana seu inutilia peragenda.

Where for any reason notice cannot be given, then the assignee must perfect his title in some other way; e.g., where the sole trustee of stock has died without legal representatives a distringas should be served on the Bank of England (Etty v. Bridges, 1 Y. & C. Ch. 486); and where a fund is in Court, a stop-order over it should be left at the Paymaster General's Office (Greening v. Beckford, 5 Sim. 195; Chancery Funds Act, 1872 (35 & 36 Vict. c. 44), and rules thereunder), a mere notice to the Paymaster-General being insufficient (Warburton V Hill, Kay, 470); but a notice to the trustees (if any) before payment into Court would be good against a stop-order subsequently obtained. Livesey v. Harding, 23 Beav. 141.

Chattel interests in real estate, being equitable, are not choses in action within the meaning of the rules above stated (Wiltshire v. Rabbits, 14 Sim. 76); and being legal, the law will of course prevail without regard to the question of notice. But the proceeds of the sale of real estate are not a chattel interest in real estate. Lee v. Howlett, 2 K. & J. 531.

And, Secondly, Notice as affecting or not affecting subsequent interests. A purchaser for value without notice of a prior equitable estate or interest, and, à fortiori, of a mere equity, obtaining the legal estate either at the time of his purchase or subsequently thereto, and apparently, whether by fair means or by a fraud (Culpepper's Case, Freem. 123; Pilcher v. Rawlins, L. R. 7 Ch. App. 259), is entitled to priority in Equity as well as at Law; but not in case of a breach of trust (Saunders v. Dehew, 2 Vern. 271). But the legal estate, where it is obtained fraudulently, must have been actually obtained, -i.e., conveyed (Eyre v. Burmester, 10 H. L. C. 90); although, where it may be obtained by fair means and without fraud the right to a conveyance of it is sufficient (Willoughby v. Willoughby, 1 T. R. 763). And even where a purchaser for value without notice neither has the legal estate nor the best right to call for it, Equity will do nothing to prejudice him upon the application of an adverse party asking the aid of Equity (auxiliary jurisdiction) (Burlace v. Cook, Freem. 24); although, upon the

NOTICE continued.

application of an adverse party asking his legal rights (concurrent jurisdiction), and not merely the assistance of the Court of Chancery towards establishing these rights at Law, Equity is bound and compellable to declare and decree him his rights, however much to the prejudice of the purchaser for value (Williams v. Lambe, 3 Bro. C. C. 264; Collins v. Archer, 1 Russ. & My. 284); and with reference to the rights of a prior legal mortgagee see Finch v. Shaw, Collyer v. Finch, 19 Beav. 500). And as between persons who are successive equitable claimants, Equity takes them according to their priorities of date, without regard to notice or the absence of notice (Phillips v. Phillips, 31 L. J. (Ch.) 325), unless in the case of the gross negli gence of a prior claimant being the occasion of the prejudice sustained by a subsequent one. Rice v. Rice, 2 Dr. 73.

On the other hand, a purchaser for value with notice of a prior equitable estate, or interest, or even of an equity, cannot, by getting in the legal estate, whether at the time of, or subsequently to, his purchase, and whether by fair means or fraudulent, obtain priority over such prior claim, but the purchaser will in such a case be held a trustee for the prior claimant to the extent of such prior claim (Birch v. Ellames, 2 Anst. 427). And notice will bind the subsequent purchaser, even although the prior charge is defective, or would even (as from neglect to register or re-register) be void at Law (Le Neve v. Le Neve, Amb. 436); although conversely the absence of notice will save him, even although the prior charge be registered (Morecock v. Dickens, Amb. 678), unless in Ireland (6 Anne, c. 2), or with reference to British ships (Hughes v. Morris, 2 De G. M. & G. 349); the same rules apply to subsequent mortgagees; but with reference to judg ment creditors the following peculiar rules have been established:

(a.) Judgment creditors, as between themselves, take rank according to the order of the dates of their several registrations, without regard to the question of notice, which as between them is immaterial. Benham v. Keane, 1 J. & H. 685: 3 & 4 Vict. c. 82, s. 2.

(b.) An unregistered judgment does not affect a subsequent purchaser for value or mortgagee, and here also without regard to the question of notice. Benham v. Keane, 1 J. & H. 685; 18 & 19 Vict. c. 15, s. 5.

(c.) An unregistered judgment affects a subsequent cestui que trust having notice of it. Benham v. Keane, supra.

(d.) A registered judgment which has been also duly re-registered affects a subsequent purchaser for value or mortgagee

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