NOTICE-continued.

assignee who omits to give notice; but in Lloyd v. Banks (L. R. 3 Ch. 488), where the trustee of a fund had notice of an insolvency from the newspapers merely, and acted on the information thereby obtained, a subsequent particular assignee of the cestui que trust was held not to acquire priority over the general assignee in insolvency.

And in all these cases notice before actual payment of the purchase-money, whether or not the notice be also before the contract, and whether before or after the conveyance is executed, is binding upon the subsequent purchaser or mortgagee (Tourville v. Naish, 3 P. Wins. 307); and even where notice is not given until after payment of the purchase-money, provided the conveyance has not yet been executed, the purchaser or mortgagee is equally bound (Wigg v. Wigg, 1 Atk. 382). Therefore the only notice which the purchaser or mortgagee may disregard is notice coming to him both after payment of the purchase or mortgage money and after execution of the conveyance.

But a subsequent purchaser or mortgagee of lands with notice of a prior voluntary settlement may safely disregard it, such settlement being void against him under the 27 Eliz. c. 4 (Doe v. Manning, 9 East, 59); and the purchaser may even compel a specific performance of the contract (Daking v. Whimper, 26 Beav. 568). The benefit of the stat. 27 Eliz. c. 4, does not, however, extend to one who purchases or takes a mortgage of lands from the heirat-law or devisee of the voluntary settlor, or from a person claiming under a subsequent voluntary settlement, or indeed from any person other than the voluntary settlor himself. Doe v. Rusham, 17 Q. B. 723; Lewis v. Rees, 3 K. & J. 132; Richards v. Lewis, 11 C. B. 1035.

NOTICE OF ACTION. When it is intended to sue certain particular individuals it is sometimes, as in the case of actions against justices of the peace, necessary to give them notice of the action some time, usually one month, before.

NOTICES OF OBJECTIONS TO PATENT.

By the 5 & 6 Will. 4, c. 83, s. 5, it is provided, that in any action brought against any person for infringing any letters patent, the defendant on pleading thereto shall give to the plaintiff, and in any scire facias to repeal such letters patent the plaintiff shall file with his declaration, a notice of any objections on which he means to rely at the trial of such action, and no objection shall be allowed to be made on behalf of such defendant or plaintiff respectively at such trial, unless he prove the objections

NOTICE OF OBJECTIONS OF PATENT -continued.

stated in such notice. The object of this notice, or particular of objections, as it is sometimes called, is to point out to the plaintiff the real nature of the objections to the patent which the defendant intends to set up upon the trial as an answer to the plaintiff's action, in order that the plaintiff may be prepared with the necessary evidence to meet such objections. It is somewhat analogous to a particular of set-off, and, like it, is rendered necessary on account of the generality of the defendant's pleas.

See also title PATENTS.

In general

NOTICE TO PRODUCE. notice to produce any document in the possession or power of the opposite party is required; and such notice must be given in order to the admission of secondary evidence of the contents of the document (Reg. v. Elworthy, L. R. 1 C. C. R. 105). But where, from the nature of the proceedings, as in the case of trover for a bond, the party in possession of the document necessarily has notice that he is to be charged with the possession of it, a notice to produce is unnecessary (How v. Hall, 14 East, 274). Also, a counterpart executed by the defendant may be read by the plaintiff without a notice to produce the original (Burleigh v. Stibbs. 5 T. R. 465); and in an action for seamen's wages, secondary evidence of the ship's articles is admissible under 17 & 18 Vict. c. 104, s. 164, without any notice to produce them.

Generally, however, a notice to produce any notice on which the action is founded is unnecessary; but it is usual in business to have two copies of the notice to produce, and to serve one and retain the other, indorsing on the latter the time and mode of the service of the former. And now by the C. L. P. Act, 1852, s. 119, where there has been a notice to admit the notice to produce, an affidavit of the attorney or his clerk of the service of the notice to produce and of the time when served, with a copy of it annexed, is sufficient evidence of the service of the original and of the time of service.

NOTICE TO QUIT. As between landlords and tenants, where there is no express stipulation as to the length of notice to quit the tenements occupied by the tenant, it is a general presumption of law that in the case of tenancies from year to year a half-year's notice must be given, such notice to expire at the end of the current year of the tenancy (Bridges v. Potts, 17 Č. B. (N.S.) 332. And in the case of quarterly, monthly, and weekly tenancies, the safest course is to give a notice corresponding to

NOVATION. The acceptance of a new debt or obligation in satisfaction of a prior existing one. Thus, it is said that a surety is discharged by the novation of the debt; for he can no longer be bound for the first debt, for which he was surety, since it no longer subsists, having been extinguished by the novation; neither can he be bound for the new debt into which the first has ,been converted, since this new debt was not the debt to which he acceded.

A novation may arise in either of two

ways:

(1.) As in the case of a renewal bill, where the person of the debtor remains the same, but the amount or terms are increased or altered;

(2.) As in the case of an amalgamation of companies, where the person of the debtor is altered, but the other terms of the contract remain the same, the new company which is substituted for the old one taking over all the liabilities (together with the rights) of the latter.

It is essential to every novatio that the creditor should have assented thereto.

Justinian (in his Institutes iii. 29 (30), Quibus Modis Obligatio Tollitur, s. 3) enacted, that, unless the parties expressly stated in the writing that their intention was to make a novatio, the new obligation, although substituted for, should not put an end to, the old obligation, but the creditor should have the benefit of both securities. But this is not the rule of the English Law.

NOVEL DISSEISIN (a new or recent disseisin, or dispossession): See title ASSIZE OF NOVEL DISSEISIN.

NUDUM PACTUM (a bare agreement). An agreement to do or pay anything on one side, without any consideration or compensation therefor on the other. This is thence called a nude or naked contract (nudum pactum), and when not under seal is totally void in law, and a man cannot be compelled to perform it upon the maxim, "Ex nudo pacto non oritur actio." Pacts performed a great part in Roman Law, and it was a rule of that law that a nudum pactum, although not sufficient (in general) to support an action, was always sufficient to furnish an exception, i.e., plea or defence.

See title PACTS.

NUISANCE (from the Fr. nuire, to hurt). Any thing which unlawfully annoys or does damage to another is a nuisance. A nuisance is either public or private. A public or common nuisance is such as affects or interferes with the king's subjects in general; a private nuisance is such as only affects or interferes with an individual in his individual capacity. A private nuisance may be remedied by action, or in some instances by abatement (see that title); a public nuisance producing private damage by action, or (making the AttorneyGeneral a party) by information in Chancery or by indictment at Common Law.

NUL TIEL RECORD (no such record). A plea pleaded in that form of trial which is called trial by the record. This form of trial is only used in one particular instance, and that is where a matter of record is pleaded in any action, as a fine, a judgment, or the like, and the opposite party pleads "nul tiel record," i.e., that there is no such matter of record existing; whereupon issue is joined, which is called an issue of nul tiel record, and in such cases the Court awards a trial by inspection and examination of the record. Stephen on Pleading, 112.

NUN: See title MONK.

NUNC PRO TUNC (now for then). When a party has omitted to take some step which he ought to have taken, as to file an affidavit, or to enter up judgment, for instance, the Court will sometimes permit him to do it after the proper time has passed by for that purpose, and will allow it to have the same effect as if it had been regularly done; and this in the case of the affidavit is called filing it nunc pro tunc; or in the case of entering up judgment, is called entering it nunc pro tunc; i.e., doing it now for (or instead of) then. By r. 56, H. T. 1853, all judgments, whether interlocutory or final, shall be entered of record of the day of the month and year, whether in term or vacation, when signed, and shall not have relation to any other day; but it shall be competent to the Court or a judge to order a judgment to be entered nunc pro tunc. Under this rule, a judgment is frequently allowed to be entered nunc pro tunc, where the signing of it has been delayed by the act of the Court, and usually in the case of the death of a party, e.g., if a party dies after special verdict, or after a special case has been stated for the opinion of the Court, or after a motion in arrest of judgment, or for a new trial, or after a demurrer set down for argument and pending the time taken for argument, or whilst the Court is considering of its

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.

O.

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

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 oath, 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 or 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 (ie., 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.

This, in

OBLIGATION SOLIDAIRE, 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

an

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 grantee. 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."

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.

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 the 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 entitles 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. Court of the Official Principal was therefore called the Arches Court of Canterbury, and was of very ancient origin, having subsisted 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.

The

OFFICIO, OATH EX-continued.

or thing by which they might be liable to any censure or punishment. This oath was made use of in the Spiritual Courts as well in criminal cases of ecclesiastical cognizance, as in matters of civil right, but was abolished with the High Commission Court by stat. 16 Car. 1, c. 11.

See title HIGH COMMISSION COURT.

OLERON, LAWS OF. The laws made by Richard I., when at Oleron, relating to maritime affairs. Les Termes de la Ley: Co. Litt. 260.

ONUS PROBANDI. This means the Burden of Proof. It is a general rule that he who asserts a fact is bound to prove it; and it is not ordinarily required to prove a negative, ei qui dicit non qui negat incumbit probatio. But what is at first sight a negation may be in reality an affirmative assertion, and in respect of it the onus probandi would rest on the person asserting it (Williams v. E. I. Co., 3 East, 193), unless the matter was peculiarly within the knowledge of the other party, e.g., killing game without being duly qualified (Spieres v. Parker, 1 T. R. 144), or selling beer without a licence. R. v. Harrison, Paley, Conv. 45, n.

The onus probandi may be shifted by some presumption of law, e.g., by the presumption of innocence (Williams v. E. I. Co., supra); or of legitimacy (Banbury Peerage Case, 2 Selw. N. P. 709); or of value in the case of an acceptance to a bill (Mills v. Barber, 1 M. & W. 425); or of sanity (Sutton v. Sadler, 26 L. J. (C.P.) 284); however, in numerous cases of a criminal nature, the Legislature has expressly enacted that the burden of proving authority, consent, lawful excuse, and the like, shall lie on the defendant, e.g., in the case of a person being found by night with implements of housebreaking. 24 & 25 Vict. c. 96, s. 58.

For

A test frequently, but not always, available for determining upon whom the burden of proof rests, is,-to ask which party would succeed if no evidence were given on either side, and then the onus probandi will rest upon the other party (Mills v. Barber, 1 M. & W. 427). example, in an action for not executing a contract in a workmanlike manner, the onus rests on the plaintiff (Amos v. Hughes, 1 M. & Rob. 464). Wherefore, usually, the party on whom the onus probandi lies, as developed on the record, must begin; and the right to begin is conversely a test of the party on whom the onus probandi rests. And yet in certain cases the right to begin is in the plaintiff, while the onus probandi lies on the defendant, or, vice versâ, as in cases where a plaintiff seeks

ONUS PROBANDI-continued. unliquidated damages in an action for libel or slander, or even of covenant or assumpsit. Mercer v. Whall, 5 Q. B. 447.

OPENING A COMMISSION. Entering upon the duties under a commission, or commencing to act under a commission, is so termed. Thus the judges of assize and nisi prius derive their authority to act under or by virtue of commissions directed to them for that purpose; and, when they commence acting under the powers so committed to them, they are said to open the commissions, and the day on which they so commence their proceedings is thence termed the commission day of the assizes.

OPENING A RULE. The act of restoring or recalling a rule, which has been made absolute, to its conditional state, as a rule nisi, so as to re-admit of cause being shewn against the rule. Thus, when a rule to shew cause has been made absolute under a mistaken impression that no counsel had been instructed to shew cause against it, it is usual for the party at whose instance the rule was obtained to consent to have the rule opened, by which all the proceedings subsequent to the day when cause ought to have been shewn against it are in effect nullified, and the rule is then argued in the ordinary way.

OPENING PLEADINGS. In trials at Nisi Prius it is the practice for the plaintiff's counsel to state briefly the substance and effect of the pleadings in the cause, in order that the jury may know what are the issues about to be tried, and this is termed "opening the pleadings."

OPTION. The archbishop has a customary prerogative when a bishop is consecrated by him, to name a clerk or chaplain of his own to be provided for by the bishop, in lieu of which it is now usual for the bishop to make over by deed to the archbishop, his executors, and assigns, the next presentation of such dignity or benefice in the bishop's disposal within that see, as the archbishop himself shall choose, which is, therefore, called his option. Cowel.