A New Law Dictionary and Institute of the Whole Law

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 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 affirmative. 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. 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 leris 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 culist, 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.

A new

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. 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.

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 proccedings 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

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. 11). 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 banc, or at nisi prius; in the one case he would, in company with three other learned judges, be hearing and determining questions 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 præcipe 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

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