to consent as force and fear. Dig. 50. 17. | the nature of things, it can be paid. Dig. 116. Nihil dictum quod non dictum prius. Nothing is said which was not said before. Said of a case where former arguments were repeated. Hardr. 464. Nihil est magis rationi consentaneum quam eodem modo quodque dissolvere quo conflatum est. Nothing is more consonant to reason, than that a thing should be dissolved or discharged in the same way in which it was created. Shep. Touch. 323. As that the discharge of a debt or duty created by writing (or deed,) should be by writing (or deed) also. Id. ibid. See Nihil tam conveniens, &c. Nihil facit error nominis, cum de corpore constat. An error of name works no prejudice, where it is clear as to the body [or subject matter intended.] Dig. 18. 1. 9. 1. This maxim of the civil law has been adopted in the common law, corpus being taken in the sense of a corporate body. 11 Co. 21 a, Dr. Ayray's case. A misnomer in a grant to a corporation does not avoid the grant, though the right name of the corporation be not used, provided the corporation really intended be made apparent. 2 Kent's Com. 292. Sometimes, the maxim is more generally applied, and in place of the word corpore, the words persona or re are used. Shep. Touch. (by Preston,) 236, 247. In the original text of the Digests, corpus is taken in the sense of subject matter. Nihil in lege intolerabilius est [quam] eandem rem diverso jure censeri. Nothing is more intolerable in law, than that the same matter, thing or case, should be subject to different views of law. 4 Co. 93 a, Slade's case. Applied to the difference of opinion entertained by different courts, as to the law of a particular case. Id. ibid. Nihil magis justum est quam quod necessarium est. Nothing is more just than that which is necessary. Dav. R. 12. Branch's Princ. Nihil nequam est præsumendum. Nothing wicked is to be presumed. 2 P. Wms. 583. Nihil perfectum est dum aliquid restat agendum. Nothing is perfect, while any thing remains to be done. 9 Co. 9 b, Dowman's case. Nihil peti potest ante id tempus quo per rerum naturam persolvi possit. Nothing can be demanded before the time when, by 50. 17. 186. Nihil possumus contra veritatem. We can do nothing against truth. Doct. & Stud. dial. 2, c. 6. Nihil quod est contra rationem est licitum. Nothing that is against reason is lawful. Co. Litt. 97 b. Nihil quod est inconveniens est licitum. Nothing that is inconvenient is lawful. Co. Litt. 66 a, 97 b. A maxim very frequently quoted by Lord Coke, but to be taken in modern law with some qualification. Broom's Max. 84-86, [140.] Nihil tam naturale est, quam eo genere quidque dissolvere quo colligatum est. Nothing is so natural as to dissolve a thing by the same kind of means, by which it was bound together. Dig. 50. 17. 35. See Id. 153. This maxim of the civil law is otherwise expressed by Bracton, Nihil tam conveniens est naturali æquitati, quam unumquodque dissolvi eo ligamine quo ligatum est, (Nothing is so consonant to natural justice, as that every thing should be dissolved by the same kind of tie with which it is bound;) and applied to the dissolution of the connection of homage by the same mutual consent by which it was created. Bract. fol. 78 b. The maxim in the latter form is constantly quoted by Lord Coke, and has been extensively adopted in the common law. 2 Inst. 359, 360. Every contract or agreement ought to be dissolved by matter of as high a nature as the first deed, or as that which first made it obligatory. 5 Co. 26 a, Countess of Rutland's case. 2 Id. 53 a. 4 Id. 57 b. Shep. Touch. 396. Broom's Max. 407, [681.] Best on Evid. 250, § 206. It does not apply, however, to the dissolution of the contract of partnership. Story on Partn. § 271. Other forms of this maxim occur in the books. Nihil est tam naturale quam quidlibet dissolvi co modo quo ligatur. (Nothing is so natural as that a thing should be dissolved in the same way in which it was created;) contract by contract, deed by deed, record by record. Jenk. Cent. 166, case 20. Quomodo quid constituitur, eodem modo dissolvetur. Id. 74, case 40. Nihil tam conveniens est naturali æquitati, quam voluntatem domini volentis rem suam in alium transferre, ratam haberi. Nothing is so agreeable to natural equity, as that the will or intention of an owner desiring to transfer his property to another, should be ratified or confirmed. Inst. 2. Towns. Pl. 432. Literally translated in 1. 40. Dig. 41. 1. 9. 3. This civil law the modern precedents, "And the said maxim is quoted by Bracton, and from the (defendant)-comes and defends, &c. and latter writer by Lord Coke. 1 Co. 100 a, says nothing in bar or preclusion of the Shelley's case. action of the said (plaintiff) whereby," &c. Arch. Forms, 336. Nihil tam proprium imperio quam legibus vivere. Nothing is so becoming to authority, as to live in accordance with the laws. Fleta, lib. 1, c. 17, § 11. NIL, (a contraction of NIHIL.) Lat. Nothing. Nil sine prudenti fecit ratione vetustas; antiquity did nothing without a good reason. Co. Litt. 65. See Nihil. Nil temere novandum. Nothing should be rashly changed. Jenk. Cent. 163, case 9. No innovation should be rashly intro duced. NIL CAPIAT, (or, QUOD NIL CAPIAT, that he take nothing.) L. Lat. In practice. A name given to the judgment for the defendant in an action at law, where the issue has arisen on a pleading in bar. So called from the emphatic words of the entry of judgment in the old form: Ideo consideratum est quod prædictus-NIL CAPIAT per breve sed quod sit in misericordia, &c. Literally translated in the modern precedents: "Therefore it is considered that the said (plaintiff) take nothing by his writ (bill or declaration,) but that he be in mercy," &c. Arch. Forms, 129. NIL DEBET. L. Lat. (He owes nothing.) In pleading. The name of the general issue in an action of debt on simple contract. 3 Bl. Com. 305. 1 Burr. Pr. 167. See 1 Kent's Com. 260, 261. So called from the emphatic words of the plea when framed in Latin: Et dicit quod ipse NON DEBET præfato-præd. 201. nec aliquem inde denarium, &c. (And says that he does not owe the said- the aforesaid 201. nor any penny thereof.) Towns. Pl. 483. Nil debent; they owe nothing. 10 East, 366. In England, the plea of nil debet is not now allowed in any action. Reg. Gen. Hil. T. 4 Will. IV. See Never indebted. NIL (or NIHIL) DICIT. L. Lat. (Says nothing.) In practice, A name given to the judgment entered on the default of a defendant to plead to the plaintiff's declaration. 3 Bl. Com. 397. 1 Tidd's Pr. 562. So termed from the emphatic words of the ancient entry on the record: Et prædictus-venit et defendit, &c. et NIHIL in barram sive præclusionem actionis prædicti-DICIT, per quod, &c. NIL HABUIT IN TENEMENTIS. L. Lat. (He had nothing in the tenements.) In old pleading. A plea in an action of debt upon a lease. 2 Ld. Raym, 1154. Nimia subtilitas in jure reprobatur. Excessive subtlety is reprobated in law. 4 Co. 5 b, Vernon's case. Wingate's Max. 26. Broom's Max. [141.] The law discountenances curious and nice exceptions, tending to the overthrow or delay of justice. See Apices juris non sunt jura. NIMIS. Lat. Too much; too. NISI. Lat. Unless. Nisi convenissent in manum viri; unless they should come into the power of a husband; unless they should marry. A phrase applied in Roman law to women, who were subject to perpetual guardianship until married. Bl. Com. 464. See Rule nisi. 1 NISI PRIUS. L. Lat. (Unless before, or unless sooner.) In practice. A common law phrase of high antiquity, unmeaning in its literal translation as at present applied, but of great significance in practice, and equally familiar to the jurisprudence of England and the United States; being constantly used to denote the system of trial of issues of fact, in civil cases, before a jury, as distinguished from the argument of issues and questions of law before the court in bench. Originally consisting merely of two ordinary words in a writ and record, it came to be used, from its convenience, as the name of the writ by virtue of which an issue of fact was tried, of the record used for the trial, of the court in which the trial was had, of the jury, of the trial itself, and finally of the whole system of trial, as already described. **The origin of this important phrase may be explained as follows: Originally, an action was triable only in the court where it was brought, and there the parties and the jurors were always summoned to appear. But it was provided by Magna Charta, in ease of the subject, that assises of novel disseisin and mort d'ancestor, (which were the most common remedies of that day) 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 it has been traced. The trial was then a contingency, that might or might not happen, the justice might or might not come into the county, the circuit or iter might be in various ways prevented or suspended (poterit iter multipliciter impediri, vel suspendi,) or, in modern phrase, might fall through. Hence it was presented on the record, in the way of an exception, that might or might not have effect, and introduced, as it were, by the by, as something collateral and subordinate to the main course of the proceedings. And the nisi prius clause (as it is termed) has in practice retained this character of a condition or exception ever since, although the system of local trials itself has long been established on a permanent foundation. 3 Bl. Com. 352–354. It be sent into every county, once a year, to take these assises there. 1 Reeves' Hist. Eng. Law, 246. These justices, it may be observed, continued to be called in Bracton's time by their original name of justices itinerant or in eyre, their court being also termed, as before, the eyre or iter. Bract. fol. 109, 110. The system of local trials, being found convenient, was soon applied not only to assises but to other actions, but, in consequence of the uncertainty which at that early period was found to attend the holding of the local courts, eyres or assises, (or, in Bracton's words, quia bene poterit iter multipliciter impediri, revocari vel suspendi,) the practice was continued of summoning the parties to appear as before in the superior court, at a certain day, or in the language of the record, giving them a day in the bench, (in banco,) NISI PRIUS CLAUSE. In practice. UNLESS BEFORE (that day,) the justices A clause entered on the record in an action itinerant should come to the places desig- at law, and introduced also into the jury nated for the trial, (NISI justitiarii itine- process, authorizing the trial of the cause rantes PRIUS venerint ad partes illas.) in the particular county designated. Bract. fol. 110. The statute of Westminster 2, (13 Edw. I. c. 30, afterwards called the statute of Nisi Prius,) confirmed this practice, and introduced a similar condition into the process for summoning the jury, by providing that writs of venire for summoning juries to the superior courts should be in the following form: Præcipimus tibi quod venire facias coram justitiariis apud Westm. in Octabis Seti Michaelis NISI, talis et talis, tali die et loco ad partes illas venerint, duodecim, &c. [We command you that you cause to come before our justices at Westminster, on the octave of St. Michael, UNLESS such and such a one, at such a day and place, shall come to those parts, twelve, &c.] Mr. Serjeant Stephen considers this statute as the foundation of the present system of trial at nisi prius, and Mr. Spence supposes that the term nisi prius itself originated in its provisions. Steph. Pl. Appendix, Note (30.) 1 Spence's Chancery, 116, note. But the passage in Bracton, already referred to, and which is quoted by Blackstone, though not noticed by the writers just named, seems to carry back both the system and the term itself to a much earlier date. 3 Bl. Com. 352. The words nisi prius, now generally treated as untranslatable or unmeaning, are, in their very simplicity, singularly expressive of the character of the system of focal trials, at the remote period to which was first used by way of continuance, the parties having a day given them in the court above, unless, before (nisi prius) that day, the justices assigned to try the cause should come into the county. Bract. fol. 110. See Nisi prius. It was afterwards introduced into the process for summoning the jury (now called the venire,) which was hence termed the writ of nisi prius. In this way it came to be entered on the record made up for the trial, which was hence termed the nisi prius record, from which it was finally transferred to the judgment roll or record. In English practice, this clause has long been omitted in the venire, being inserted in the distringas juratores, (q. v.) which is now the effective process. Its form, as now entered on the record, is as follows: "Afterwards, on the day of -&c. the jury between the parties aforesaid is respited here until the — day of —, UNLESS [the judge or judges of nisi prius and assise] shall FIRST Come on the day of -, at," &c. This is a very close translation of the old Latin entry:-Jurata ponitur in respectum hic usque, &c. NISI dominus T. T. &c. die, &c. PRIUS venerit, &c. Towns. Pl. 430. The nisi prius clause has been used in American practice, though it is now in a great degree dispensed with. NISI PRIUS COURT. A court held for the trial of issues of fact, before a jury and a single presiding judge. In NOCTES DE FIRMA. L Lat. English law. Nights of farm or rent; entertainments at night by way of rent. Otherwise expressed as firmæ noctium. Spelman. See Firma. NOCTURNUS. Lat. [from nor, night.] In old English law. Nocturnal. Fur nocturnus; a night thief. Fleta, lib. 1, c. 16, § 6. This was not the same with a burglar, (burgator.) Id. See Grotius, de Jur. Bell. lib. 2, c. 1, § 12. NISI PRIUS RECORD. In practice. | L. Fr. noctandre, nutauntre.] By night. A record made up for the use of the court Fleta, lib. 4, c. 27, § 17. on a trial at nisi prius, serving both as a warrant to the judge who is to try the cause, and as a guide as to the nature of the issue to be tried. It consists of entries of the pleadings, and of the award of jury process, in a certain order and form, and is, in other words, a historical summary of the proceedings from the commencement of the action down to the time at which it is made up. In England, it is written on parchment, and is required to be sealed and passed, as it is termed, at the proper office, before it can be used. It derives its name from the clause of nisi prius, with which it concludes; by which the jury are respited or the cause continued to a certain day, unless the judge or judges of nisi prius and assise shall first come, on a certain day, at the place designated. Steph. Pl. 78-80. 2 Tidd's Pr. 775, 776. 3 Steph. Com. 589. NISI PRIUS WRIT. The old name of the writ of venire, which originally, in pursuance of the statute of Westminster 2, contained the nisi prius clause. Reg. Jud. 28, 75. Cowell. The clause, however, as it appears in the forms, was not in the original nisi prius form, but in the alternative, the jury being directed to be summoned to come before the justices at Westminster, &c. or before the justices of assise IF they should sOONER come to the place of trial, on the day designated. The emphatic Latin words were not nisi prius, but vel si prius. See Reg. Jud. ub. sup. NOBILE OFFICIUM. Lat. Noble office or privilege. A term in Scotch law, said not to admit of a precise definition. Bell's Dict. Bell describes it as that power or privilege of a court of equity, which enables it to give redress by abating the rigor of strict law. NOCENT. [from Lat. nocere.] Guilty. "The nocent person." 1 Vern. 429. NOCERE. Lat. To hurt or damage; to offend or annoy; to produce an inconvenience; (damnum dare, incommodum adferre.) Calv. Lex. Properly applied to persons. Id. NOCIVUS. Lat. [from nocere, q. v.] In old practice. Hurtful; pernicious; noxious. Called, by Lord Mansfield, "a very technical term." 1 Burr. 337. NOCTANDRE. L. Fr. By night. Yearb. M. 5 Edw. III. 31. NOCTANTER. Lat. [from nox, night; NOCUMENTUM. Lat. [from nocere, to annoy.] In old English law. A nuisance. Bract. fol. 221. Nocumentum damnosum; a nuisance occasioning loss or damage, (or damnum sine injuria.) Id. ibid. Nocumentum injuriosum; an injurious nuisance. Id. For the latter only a remedy was given. Id. See Fleta, lib. 4, c. 26, § 2. NO'EN. A contraction of nomen. No'is of nominis. Nove of nomine. 1 Inst. Cler. 11. NOLI PROSEQUI. An old, though incorrect form of nolle prosequi. Com. 312. NOLIS. Fr. [from Lat. naulum, q. v.] In French law. Freight. The same with fret. Ord. Mar. liv. 3, tit. 3. NOLISSEMENT. Fr. [from nolis, q. v.] In French marine law. Affreightment. Ord. Mar. liv. 3, tit. 1. NOLLE. Lat. To be unwilling; to will not to do a thing; to refuse to do a thing. Used, in the civil law, to denote a voluntary act under full knowledge. Calv. Lex. A distinction was made between nolle and non velle. Id. Ejus est nolle, qui potest velle, (q. v.) NOLLE PROSEQUI. Lat. (Will not prosecute.) In practice. The name of an entry made by a plaintiff in an action at law, where he wishes to discontinue the action, either wholly, or (more commonly) as to some of the counts of his declaration, or as to some of several defendants. 1 Burr. Pr. 148, 385. So termed from the emphatic words in the old forms, the plaintiff declaring that he will not further prosecute his suit as to the counts or defendants named. See 1 Peters' R. 46, 73, et seq. Story, J. A proceeding on an indictment by which the prosecuting officer agrees to prosecute no farther, either as to the whole of the indictment, or as to some particular part of A term descriptive of person or interest, or both. Eyre, C. J. 1 Bos. & Pull. 243. it. 1 Chitty's Crim. Law, 478-480, 1205. NOMEN. Lat. A name. Nomen dicitur à noscendo, quia notitiam facit; Nomen (a name) is so called from noscendo (knowing,) because it causes knowledge. 6 Co. 65 a, Sir Moyle Finch's case. Nomen est quasi rei notamen; Nomen (a name) is, as it were, notamen rei, (the mark of a thing.) 11 Co. 20 b, Dr. Ayray's case. Calvin quotes the same etymology from Diomed. lib. 1, Grammat. Præsentia corporis tollit errorem nominis. The presence of the body (or substantial thing itself,) takes away the effect of error in the name of it. Bacon's Max. 96, reg. 25. Nomen non sufficit, si res non sit de jure aut de facto. A name is not sufficient, if there be not a thing [or subject for it,] de jure or de facto. 4 Co. 107 b, Adams and Lambert's case. NOMEN. Lat. In the Roman law. A name; including, in the most general sense, the three names of prænomen, nomen (proper,) and cognomen. Calv. Lex. See Cod. 6. 23. 4. In a strict sense, the second of the three names which the Romans commonly had, following the prænomen, and marking the gens to which the individual belonged. It commonly ended in ius; as Cornelius, Fabius, Octavius, &c. Adam's Rom. Ant. 36. Butler's Hor. Jur. 28. A debtor; the obligation of a debtor. Vendere nomen; to sell a name or obligation. Calv. Lex. Cod. 4. 10. 7. See Cic. Att. v. 21. Horat. Sat. i. 2, 16. Id. Ep. ii. 1, 105. The word name is still familiarly used in this sense. A debt; the cause of a debt; an article of an account. Adam's Rom. Ant. 547, and the authorities cited ibid. NOMEN. Lat. In old English law. A name; the name. The given or baptismal name of a person, as Matthew, Andrew, Peter, Paul. Distinguished from the cognomen (q. v.) or surname. See Fleta, lib. 4, c. 10, §§ 7, 9. Fleta mentions the prœnomen, agnomen and cognomen. Id. $9. NOMEN COLLECTIVUM. Lat. A collective name, or term; a term expressive of a class; a term including several of the same kind; a term expressive of the plural as well as singular number. Skinn. NOMEN GENERALE. Lat. A general name; the name of a genus. Fleta, lib. 4, c. 19, § 1. L. NOMEN GENERALISSIMUM. Lat. A name of the most general kind; a name or term of the most general meaning. By the name of land, which is nomen generalissimum, every thing terrestrial will pass. 2 Bl. Com. 19. 3 Id. 172. NOMEN JURIS. Lat. A name of law. A legal name or designation; a technical term. 2 Swinton's R. 429. NOMINA. Lat. [plur. of nomen, q. v.] Names. Nomina sunt notæ rerum. Names are the marks of things. 11 Co. 20 b. Nomina sunt symbola rerum. Names are the symbols or signs of things. Branch's Princ. Nomina significandorum hominum reperta sunt, qui si alio quolibet modo intelligantur, nihil interest; names were invented for the purpose of designating persons, who, if they can be known in any other way, it makes no difference. Inst. 2. 20. 29. Nomina si nescis perit cognitio rerum. Et nomina, si perdas, certi distinctio rerum perditur. If you are ignorant of names, [without a knowledge of names,] the knowledge of things perishes. And if you lose the names, the distinction of things is certainly lost. Co. Litt. 80 b. The names of things are, for avoiding of confusion, diligently to be observed. Id. ibid. Nomina mutabilia sunt, res autem immobiles. Names are mutable, but things are immoveable, [immutable.] 6 Co. 66 a. Applied to the name of a manor, which might be acquired by knowledge of the country, without being the true and proper name. NOMINA VILLARUM. Lat. Names of the villages. The name of a return made by the sheriffs of England into the exchequer, in the reign of Edward II. of the names of all the villages and their possessors in every county. Cowell. Blount. NOMINAL PARTNER. One who appears, or is held out to the world as a partner, but who has no real interest in the firm or business. Story on Partn. § 80. One who allows his name to appear in the partnership firm, and be used in the business, and thereby holds himself out to the world as apparently having an interest in it; though he may have no actual interest |