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NOTICE-continued.

NOTICE—continued. having notice of it (Simpson v. Morley, 2 K. rupt comprises (among other things) & J. 71); but not a subsequent purchaser (1.) All such property as may belong to, or for value or mortgagee no: having notice of be vested in, the bankrupt at the commenceit. Robinson v. Woodward, De G. & Sm. ment of the bankruptcy, or may be ac562.

quired by or devolve upon him during its (e.) A registered judgment which has continuance; and (2.) All goods and chatbeen otherwise duly perfected does not tels being, at the commencement of the affect a purchaser whose contract is prior bankruptcy, in the possession, order, or in date to the judgment, although the con- disposition of the bankrupt, being a trader, veyance should be subsequent (Brown v. by the consent and permission of the true Perrott, 4 Beav. 585), without reference to owner, of which goods and chattels the the question of notice.

bankrupt is reputed owner, or of which he (1.) A registered judgment which lias has taken upon himself the sale or dispobeen otherwise duly perfected does not sition as owner; but it is provided that affect a prior voluntary settlement (Beavan things in action other than debts due to v. Oxford (Earl), 6 De G. M. & G. 507); the bankrupt in the course of his trade or and, à fortiori, does not affect a prior pur- business shall not be deemed goods and chase for value or mortgage, without re- chattels within the meaning of this order ference to the question of notice. And see and disposition clause; and in the first title JUDGMENT DEBTS.

schedule to the Act the word “trader And with reference to tacking the fol- is made to include the occupations specilowing peculiar rules have been estab- fied in that schedule. Now, subject to lished as between mortgagees and judy- that section, aud so far as it may not have ment creditors :

altered the previous law, the following rules (a.) If one who is a judgment creditor have been established as between a trustee to begin with buys in a first mortgage, he in bankruptcy or general assignee on the shall not tack the judgment to that mort- one hand, aud a particular assignee on the gage so as to gain a priority over a second other:mortgagee who was such at the date of his (aa.) If the particular assignee were of judgment, and without reference to the a date prior to the bankruptcy of the debtor, question of notice. Brace v. Murlborough and had also given notice prior thereto, he (Duchess), 2 P. Wms. 491.

retained his priority, but failing such notice (6.) If one who is a first legal mortgagee lost it, in favour of the trustve in bankto begin with buys in or obtains a judg. ruptey or general assignee who gave notice, ment for a further sum, and had no notice the particular assignment not being frauof any subsequent charge at the time of dulent; getting hold of such judgment, he shall (bb.) If the particular assignee was of a tack the judgment to his mortgage and date posterior to the bankruptcy of the obtain priority over the subsequent charge. debtor, but had given notice of his assignBrace v. Marlborough (Duchesk), supra.

ment before the trustee in bankruptcy or geAnd with reference to the successive neral assignee had given notice of the bankassignees of choses in action the following ruptcy or general assignment, the particurules have been established :

lar assignee (the particular assignment not (a.) As between two or more particular being fraudulent) acquired priority over the assignees (being of course equitable), trustee in bankruptcy, or general assignce,

(aa.) If both or all the notices are given who had omitted to give such notice (In before the chose in action has realised itself, re Barr's Trusts, 4 K. & J. 219; In re Atkinso as to be ready to be delivered actually, son, 2 De G. M. & G. 140); but by the Bankin the form of money or other proceeds, ruptcy Act, 1819, s. 141, and the decision in then priority of notice gives no priority of Re Mary Coombe (1 Gitt. 91), he was deprived uitle. Buller v. Plunkett, 1 J. & H. 441. of such priority over the trustee in bankBut

ruptcy; but having regard to ss. 92, 94, and (56.) If otherwise, the successive dates 95 of the Bankruptcy Act, 1869, the same of the successive nutices establish the suc- general rules as applied before the Bankcessive priorities, or the one priority, as ruptcy Act, 1819, and the last-mentioned the case may be, this being the general decision seem to have been restored in all effect of notice in such cases.

cases where the particular assignment, al(1.) As between the trustee in bank- though subsequent to the commencement ruptey or a general assignee on the one of the bankruptcy, is prior to the date of hand, and a particular assignee on the the order of adjudication, subject ouly to other, by the Bankruptcy Act, 1869 (32 & the limitation imposed by s. 15 of the 33 Vict. c. 71), s. 15, the property of the Bankruptey Act, 1869, stated above. The bankrupt which vests in his trustee for subsequent particular assignee who gives division among the creditors of the bank- notice still has priority over a prior general NOTICE- continued.

NOTICE OF OBJECTIONS OF PATENT assignee who omits to give notice ; but in -continued. Lloyd v. Banks (L.R.3 Ch. 488), where the stated in such notice. The object of this trustee of a fund had notice of an insol- notice, or particular of objections, as it is vency from the newspapers merely, and soinetimes called, is to point out to the acted on the information thereby obtained, plaintiff the real nature of the objections a subsequent particular assignee of the to the patent which the defendunt intends cestui que trust was held not to acquire to set up upon the trial as an answer to the priority over the general assiynee in insol- plaintiffs action, in order that the plaintiff vency.

may be prepared with the necessary eviAnd in all these cases notice before dence to meet such objections. It is someactual payment of the purchase-money, what analogous to a particular of set-oll, whether or not the notice be also before the and, like it, is rendered necessary on contract, and whether before or after the account of the generality of the defendant's conveyance is executed, is binding upon the pleus. subsequent purchaser or mortgagee (Tour- See also title PATENTS. ville v. Naish, 3 P. Wms. 307); and even where notice is not given until after pay

NOTICE TO PRODUCE, In general ment of the purchase-money, provided the

notice to produce any document in the conveyance has not yet been executed, the

possession or power of the opposite party purchaser or mortgagee is equally bound

is required ; and such notice must be given

in order to the adınission of secondary (Wigg v. Wigg, 1 Atk. 382). Therefore the only notice which the purchaser or

evidence of the contents of the document mortgagee may disregard is notice coming

(Reg. v. Elworthy, L. R. 1 C. C. R. 105). But to him both after payment of the purchase

where, from the nature of the proceelings,

as in the case of trover for a bond, ihe or mortgage money and after execution of the conveyance.

party in possession of the document nécesBut a subsequent purchaser or mort

sarily has notice that he is to be charged gagee of lands with notice of a prior volun

with the possession of it, a notice to protary settlement may safely disregard it,

duce is unnecessary (Horo v. Hall, 14 East, such settlement being void against him

274). Also, a counterpart executed by the under the 27 Eliz. c. 4 (Doe v. Manning,

defendant may be read by the plaintitf 9 East, 59); and the purchaser may even

without a notice to produce the original compel a specific performance of the con

(Burleigh v. Stibbe. 5 T. R. 465); and in an tract (Daking v. Whimper, 26 Beav, 568).

action for seamen's wages, secondary eviThe benefit of the stat. 27 Eliz, c. 4, does

dence of the ship's articles is admissible not, however, extend to one who purchases

under 17 & 18 Vict. c. 104, s. 164, without or takes a mortgage of lands from the heir

any notice to produce them. at-law or devisee of the voluntary settlor,

Generally, however, a notice to produce or from a person claiming under a subse

any notice on which the action is founded quent voluntary settlement, or indeed from

is unnecessary; but it is usual in business

to have two copies of the notice to produce, any person other than the voluntary settlor himself. Doe v. Kusham, 17 Q. B. 723;

and to serve one and retain the other, Levis v. Rees, 3 K. & J. 132; Richards v.

indorsing on the latter the time and moule

of the service of the former. And now by Lewis, 11 C. B. 1035.

the C. L. P. Act, 1852, s. 119, where there NOTICE OF ACTION. When it is in- has been a notice to admit the notice to tended to sue certain particular individuals proluce, an affidavit of the attorney or his it is sometimes, as in the case of actions clerk of the service of the notice to produce against justices of the peace, necessary to

and of the time when served, with a copy give them notice of the action some time, of it annexed, is sufficient evidence of the usually one month, before.

service of the original and of the time of

service. NOTICES OF OBJECTIONS TO PATENT. By the 5 & 6 Will. 4, c. 83, s. 5, it is pro

NOTICE TO QUIT. As between landvided, that in any action brought against lords and tenants, where there is no express any person for infringing any letters patent, stipulation as to the length of notice to the defendant on pleading thereto shall quit the tenements occupied by the tenant, give to the plaintiff, and in any scire facias it is a general presumption of law that in to repeal such letters patent the plaintiff the case of tenancies from year to year a shall file with his declaration, a notice of half-year's notice must be given, such notice any objections on which he means to rely to expire at the end of the current year at the trial of such action, and no objection of the tenancy (Bridges y. Potts, 17 C. B. shall be allowed to be made on behalf of (N.S.) 332. And in the case of quarterly, such defendant or plaintiff

' respectively at monthly, and weekly tenancies, the safest such trial, unless he prove the objections course is to give a notice corresponding to NOTICE TO QUIT-continued.

NUISANCE (from the Fr. nuire, to hurt). the tenancy, but there is hardly any rule Any thing which unlawfully annoys or of law upon the subject. The like rules does damage to another is a nuisance. A apply as to the tenant giving notice to de- nuisance is either public or private. A termine his tenancy, which also is some- public or common nuisance is such as times abusively called a notice to quit.

affects or interferes with the king's subjects The notice may be afterwards waived, e.g., in general; a private nuisance is such as by the landlord's subsequently distraining only affects or interferes with an individual for rent.

in his individual capacity. A private

nuisance may be remedied by action, or in NOVATION. The acceptance of a new

some instances by abatement (see that debt or obligation in satisfaction of a prior title); a public nuisance producing private existing one. Thus, it is said that a surety

damage by action, or(making the Attorneyis discharged by the novation of the debt';

General a party)by information in Chancery for he can no longer be bound for the first

or by indictment at Common Law. debt, for which he was surety, since it no longer subsists, having been extinguished NUL TIEL RECORD (no such record). A by the novation ; neither can he be bound plea pleaded in that form of trial which is for the new debt into which the first has called trial by the record. This form of been converted, since this new debt was trial is only used in one particular instance, not the debt to which he acceded.

and that is where a matter of record is A novation may arise in either of two pleaded in any action, as a fine, a judgways:

ment, or the like, and the opposite party (1.) As in the case of a renewal bill, where pleads “nul tiel record," i.e., that there is the person of the debtor remains the same, no such matter of record existing; wherebut the amount or terms are increased or upon issue is joined, which is called an altered;

issue of nul tiel record, and in such cases (2.) As in the case of an amalgamation the Court awards a trial by inspection and of companies, where the person of the examination of the record. Stephen on debtor is altered, but the other terms of Pleading, 112. the contract remain the same, the new company which is substituted for the old NUN: See title MONK. one taking over all the liabilities (together with the rights) of the latter.

NUNC PRO TUNC (now for then). When It is essential to every novatio that the

a party has omitted to take some step creditor should have assented reto.

which he ought to have taken, as to file Justinian (in his Institutes iii. 29 (30),

an affidavit, or to enter up judgment, for Quibus Modis Obligatio Tollitur, s. 3) enact

instance, the Court will sometimes permit ed, that, unless the parties expressly stated

him to do it after the proper time has in the writing that their intention was passed by for that purpose, and will allow

it to have the same effect as if it had been to make a novatio, the new obligation, although substituted for, should not put regularly done; and this in the case of

the affidavit is called filing it nunc pro an end to, the old obligation, but the creditor should have the benefit of both tunc; or in the case of entering up judgsecurities. But this is not the rule of the ment, is called entering it nunc pro tunc; English Law.

i.e., doing it now for (or instead of) then.

By r. 56, H. T. 1853, all judgments, NOVEL DISSEISIN (a new or recent dis

whether interlocutory or final, shall he seisin, or dispossession): See title AssiZE OF

entered of record of the day of the month NOVEL DISSEISIN.

and year, whether in term or vacation, NUDUM PACTUM (a bare agreement). when signed, and shall not have relation An agreement to do or pay anything on to any other day; but it shall be comone side, without any consideration or com- petent to the Court or a judge to order a pensation therefor on the other. This is judgment to be entered nunc pro tunc, thence called a nude or naked contract Under this rule, a judgment is frequently (nudum pactum), and when not under seal allowed to be entered nunc pro tunc, is totally void in law, and a man cannot be where the signing of it has been delayed compelled to perform it upon the maxim, by the act of the Court, and usually in Es nudo pacto non oritur actio.” Pacts the case of the death of a party, e.g., if performed a great part in Roman Law, and a party dies after special verdict, or after it was a rule of that law that a nudum a special case has been stated for the pactum, although not sufticient (in general) opinion of the Court, or after a motion in to support an action, was always sufficient arrest of judgment, or for a new trial, or to furnish an exception, i.e., plea or de- after a demurrer set down for argument fence.

and pending the time taken for argument, See title Pacts.

or whilst the Court is considering of its

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NUNC PRO TUNC-continued. judgment. No such indulgence is given where the neglect to enter up judgment is attributable to the laches of the plaintiff or of those representing him, or by reason of any proceeding in error, or the like. The right to order judgment to be entered nunc pro tunc belongs even at Common Law to the Court.

NUNCUPATIVE WILL (testamentum nuncupatum). A will which depends merely upon oral evidence, having been declared or dictated by the testator previous to his death, before a sufficient number of witnesses, and afterwards reduced to writing. All wills, however, must now be reduced into writing at the time they are made (1 Vict. c. 26, s. 1). In the interval between the Statute of Frauds (29 Car. 2, c. 3) and the New Wills Act (1 Vict. c. 26) nuncupative wills were good for estates not exceeding £30 in all, where the will was pronounced before three witnesses and was reduced into writing within six days after it was made, or was proved within six months of the making; but before the Statute of Frauds they were valid without limit as to estate, just as they always were in Roman Law if made in the presence of seven witnesses. Just. ii. 10, 14.

NUPER OBIIT (he died lately). A writ that lay for a co-heir who had been deforced by her co-parcener of lands or tenements, of which their grandfather, father, brother, or other common ancestor had died seised in fee simple. F. N. B. 197 ; Cowel.

NURTURE (Guardians for). Are the father or mother until infants attain the age of fourteen years; and in default of father or mother, the ordinary in former times usually assigned some discreet person to take care of the infant's personal estate, and to provide for its maintenance and education. But this duty is now discharged by the Court of Chancery, which appoints a guardian for that purpose.

See titles GUARDIANS ; INFANTS.

OATHS—continued. swear each witness according to the forms of his own religion, the English form being upon the Holy Gospels. Before an oath can be administered, it must be shewn if any doubt of the fact should exist), that the witness is aware of the sanctity of the oatlı, or generally that God will punish falsehood. Oaths have, however, been the subject of considerable abuse in law, particularly the so-called Decisory Oath, which in the absence of other evidence to the contrary, was permitted to settle the question in dispute ; also, the so-called Suppletory Oath, which was administered by the judge, and was allowed to have a similar effect.

OBLIGATION (obligatio). An obligation or bond is a deed whereby a person obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at an appointed day; and he who so obliges himself, or enters into such a bond, is termed the obligor, and the party to whom he so obliges, or binds himself, is termed the obligee.

Such is the use of the term “ obligation” in English Law; but the word is commonly used in a much more general sense in jurisprudence as denoting any liability incurred by one person to another in virtue either of an agreement of the parties er their disagreement; and an obligation is said to arise either ex contractu or quasi so, or ex delicto, or quasi so.

Again, obligations are of many varieties,-being either first perfect ( i.e., actionable, civiles) according to the laws of the particular country, or secondly, imperfect (i.e., naturales, or moral) according to the same laws. And as a general rule, all systems of law (other than the English Law) allow to such latter varieties of obligation a partial legal efficacy, e.g., making them good by way of defence to an action at any rate. For the effects which the Roman Law allowed them, see Brown's Savigny, title Naturalis Obligatio.

OBLIGATION SOLIDAIRE, This, in French Law, denotes joint and several liability in English Law, but is applied also to the joint and several rights of the creditors parties to the obligation.

OCCUPANCY is defined to be the "taking possession of those things which before belonged to nobody;" hence the title which a person so acquires in things is called title by occupancy. Occupancy is frequently divided into general and special occupancy. General occupancy occurred where a person was tenant pur autre vie, and died during the life of the cestui que vie, in which case the person who first

0. OATHS. Have been very generally in use as a security that a witness will speak the truth ; but in recent times, in the case of persons holding conscientious views of the impropriety of oaths, a solemn promise or declaration that they will speak the truth, and the whole truth, has been substituted for them (33 & 34 Vict. c. 49). Since the case of Omychund v. Barker (1 Atk. 21) it has been usual in England to

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OCCUPANCY-continued. entered on the land after his death might lawfully retain possession thereof, as long as the cestui que vie lived by right of occupancy, because it belonged to nobody. Special occupancy occurred where estate was limited to a man and his heirs, or the heirs of his body, during the life of another person, by which the heir or heirs of the body of such grantee might enter on the death of the ancestor, and hold possession as special occupant, having an exclusive right, by the terms of the original contract, to occupy the lands during the residue of the estate granted. General occupancy, in the sense before described, was abolished by the Statute of Frauds, and the remnant of the estate was made distributable among the creditors (if any), and the surplus remaining over was (after 14 Geo. 2, c. 20) to be distributed among the next of kin of the deceased grantie.

The whole law is now regulated by the 1 Vict. c. 26, which re-enacts the provisions of both the lastmentioned two statutes as regards occupancy.

Occupancy, in a larger sense, has played a great part in international law and in jurisprudence. In international law, it is regarded as the title to the ownership of newly-discovered countries, and also (under the particular name of hostile capture) as the title to the ownership of newly-conquered countries. In jurisprudence, it is put forward, at least very commonly, as the foundation and origin of all property, whether in lands or in goods ; but an objection is taken to it as such in Maine's Ancient Law, upon the ground that occupancy, in order to be a foundation of property, is an advised taking possession of a thing, and the notion of advisedness is too abstract for an early age. Probably, this objection refutes itself; and, after all, to quote the words of Savigny, property has had its origin in “adverse possession ripened by prescription.”

OFFICE (officium). An office is defined to be the right to exercise a public or private employment, and to take the fees and emoluments belonging thereto; and it is considered in law a species of incorporeal hereditament.

See also next title. OFFICE, INQUEST OF. An inquisition or inquest of office is an inquiry made by tl.e king's officer, his sheriff, coroner, or escheator, by virtue of his office (virtute officii), or by writ sent to him for that purpose, or by commissioners specially appointed, concerning any matter that en. titles the king to the possession of lands or tenements, goods, or chattels, &c. This inquiry is made by a jury formed of an indefinite number of persons; it used frequently to be made during the existence of the military tenures, but is now grown almost out of use. For further information on this subject, see titles INQUEST; and InQUISITION OF OFFICE.

OFFICIAL, or OFFICIAL PRINCIPAL. This was the name given to a judicial officer of high ecclesiastical authority in the province of Canterbury, and who was appointed by and under the authority of the archbishop. He had extraordinary jurisdiction in almost all ecclesiastical causes, and all appeals from bishops and their surrogates were directed to him. His ordinary jurisdiction extended throughout the whole province of Canterbury; but his citation, except upon appeal, or by letters of request, was confined to his own diocese. This office was at one time separate from that of the Dean of the Arches' Court of Canterbury; but as the two Courts met at the same place (formerly Bow Church, de Arcubus), and the Dean of the Arches frequently performed the duties of the official, in the course of time they became, and ever afterwards remained, completely united and identified. The Court of the Official Principal was therefore called the Arches Court of Canterbury, and was of very ancient origin, having subsisteri before the time of Henry II. It was held in the hall belonging to the College of Civilians, or Doctors of the Civil Law, at Doctors' Commons. The duties of the Official Principal, or Dean of Arches, are now discharged by the Judge of the Court for Ecclesiastical Causes, an office which is at present combined with that of the Judge of the High Court of Admiralty.

See title COURT OF ARCHES. OFFICIO, OATH EX. An oath formerly administered to persons by which they might be compelled to confess, accuse, or purge themselves of any criminal matter

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ODIO ET ATIA. An old writ which was directed to the sheriff to inquire whether a man committed to prison on suspicion of murder was committed on just cause of suspicion, or only out of malice. And if upon an inquisition it were found that he was not guilty, then another writ was directed to the sheriff to bail him. Les Termes de la Ley.

are

OFFENCE (delictum).

Offences either capital or not capital; capital offences are such as draw down the punishment of death on the offender, such as high treason, felony, &c. Offences not capital are those of a less important nature, and which are generally termed misdemeanors,

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