New York Lawyer WS
New York Layer, law dictionary, legal dictionary, dictionary online, word search, lawyer search, law and order, attorney, law school    

NON ACCEPTAVIT. The name of a plea to an action of assumpsit brought against the drawee of a bill of exchange upon a supposed acceptance by him. See 4 Mann. & Gr. 561; S. C. 43 E. C. L. R. 292.

NON ACCESS. The non existence of sexual intercourse is generally expressed by the words " non access of the husband to the wife which expressions, in a case of bastardy, are understood to mean the same thing. 2 Stark Ev. 218, n.

2. In Pennsylvania, when the husband has access to the wife, no evidence short of absolute impotence of the husband, is sufficient to convict a third person of bastardy with tlie wife. 6 Binn. 283.

3. In the civil law the maxim is, Pater is est quem nupticae demonstrant. Toull. tom. 2, n. 787. The Code Napoleon, art. 312, enacts, " que l'enfant concu pendant le mariage a pour pere le mari." See also 1 Browne's R. Appx. xlvii. 4. A married woman cannot prove the non access of her husband. Id. See 8 East, 202; 4 T. R. 251; 11 East, 132; 13 Ves. 58; 8 East, R. 193; 12 East, R. 550; 4 T. R. 251, 336; 11 East, R. 132; 6 T. R. 330.

NON AGE. By this term is understood that period of life from the birth till the arrival of twenty-one years. In another sense it means under the proper age to be of ability to do a particular thing; as, when non age is applied to one under the age of fourteen, who is unable to marry.

NON ASSUMPSIT, pleading. The general issue in trespass on the case, in the species of assumpsit. Its form is, "And the said C D, by E F, his attorney, comes and defends the wrong and injury, when, &c., and says, that he did not undertake or promise in manner and form as the said A B, hath above complained. And of this he puts himself upon the country."

2. Under this plea almost every matter may be given in evidence, on the ground, it is said, that as the action is founded on the contract, and the injury is tlie non, performance of it, evidence which disaffirms the obligation of the contract, at the time when the action was commenced, goes to the gist of the action. Gilb. C. P. 6 5; Salk. 27 9; 2 Str. 738; 1 B. & P. 481. Vide 12 Vin. Ab. 189; Com Dig. Pleader, 2 G 1.

NON ASSUMPSIT INFRA SEX ANNOS. The name of a plea by which the defendant avers that he did not assume to perform the assumption charged in the declaration within six years.

2. The act of limitation bars the recovery of a simple contract debt after six years; when a defendant is sued on such a contract, and it is more than six years since he entered into the contract, he pleads this plea by the following formula: " and saith that the aforesaid plaintiff the action aforesaid hereof against him he ought not to have, because he saith that he did not undertake, &c., and this he is ready to verify." Vide ddio non accrevit infra sex annos.

NON BIS IN IDEM, civil law. This phrase signifies that no one shall be twice tried for the same offence; that is, that when a party accused has been once tried by a tribunal in the last resort, and either convicted or acquitted, he shall not again be tried. Code 9, 2, 9 & 11. Merl. Räpert. h. t. Vide art. Jeopardy.

NON CEPIT MODO ET FORMA, pleading. The general issue in replevin. Its form is, "And the said C D, by E F, his attorney, comes and defends the wrong and injury, when, &c., and says, that he did not take the said cattle, (or ' goods and chattels,' according. to the subject of the action,) in the said declaration mentioned or any of them, in manner and form as the said A B hath above complained. And of this the said C D puts himself upon the country."

2. This issue applies to a case where the defendant has not, in fact, taken the cattle or goods, or where he did not take them, or have them in the place mentioned in the declaration. The declaration alleges that the defendant " took certain cattle or goods of the plaintiff, in a certain place called," &c.; and the general issue states, that he did not take the said cattle or goods, -- in manner and form as alleged;" which involves a denial 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. PI. 183, 4; 1 Chit. Pl. 490.

NON CLAIM. An omission or neglect by one entitled to make a demand within the time limited by law; as, when a continual claim ought to be made, a neglect to make such claim within a year aud a day.

NON COMPOS MENTIS, persons. These words signify not of sound mind, memory, or understanding. This is a generic term, and includes all the species of madness, whether it arise from, 1, idiocy; 2, sickness 3, lunacy or 4, drunkenness. Co. Litt. 247; 4 Co. 124; 1 Phillim. R. 100; 4 Com. Dig. 613; 5 Com. Dig. 186; Shelf. on Lunatics, 1; and the articles Idiocy; Lunacy.

NON CONCESSIT, Eng. law. The name of a plea by which the defendant denies that the crown granted to the plaintiff by letters patent, the rights which he claims as a concession from the king; as, for example, when a plaintiff sues another for the infringement of his patent right, the defendant way deny that the crown has granted him such a right.

2. The plea of non concessit does not deny the grant of a patent, but of the patent as described in the plaintiff's declaration. 3 Burr. 1544; 6 Co. 15, b.

NON CONFORMISTS English law. A name given to certain dissenters from the rites and ceremonies of the church of England.

NON CONSTAT. It does not appear. These words are frequently used, particularly in argument; as, it was moved in arrest of judgment that the declaration was not good, because non constat whether A B was seventeen years of age when the action was commenced. Sw. pt. 4, SS 22, p. 331.

NON CULPABILLS, pleading. Not guilty. (q. v.) It is usually abbreviated non cul. 16 Vin. Ab. 1.

NON DAMNIFICATUS, pleading. A plea to an action of debt on a bond of indemnity, by which the defendant asserts that the plaintiff has received no damage; in other words that he is not damnified. 1 B. & P. 640, n. a; 1 Taunt. R. 428; 1 Saund. 116, n. 1; 2 Saund. 81; 7 Wentw. PI. 615, 616; 1 H. Bl. 253; 2 Lill. Ab. 224; 14 John R. 177; 5 John. R. 42; 20 John. Rep. 153; 3 Cowen, R. 313; 10 Wheat R. 396, 405; 3 Halst. R. 1.

NON DEDIT, pleading. The general issue in formedom. See Ne dona pas.

NON DEMISIT, pleading. A plea proper to be pleaded to an action of debt for rent, when the plaintiff declares on a parol lease. Gilb. Debt, 436, 438; Bull. N. P. 177; 1 Chit. Pl. 477.

2. It is improper to plead such plea when the demise is stated to have been by indenture. Id.; 12 Vin. Ab. 178; Com. Dig. Pleader, 2 W 48.

NON DETINET, pleading. The general issue in an action of detinue. Its form is as follows:: And the said C D, by E F, his attorney, comes and defends the wrong and injury, when, &c., and says, that he does not detain the said goods and chattels (or, deeds and writings,' according to the subject of the action,) in the said declaration specified, or any part thereof, in manner and form as the said A B bath above complained. And of this the said C D puts himself upon the country."

2. In debt on simple contract, in the case of executors and administrators, instead of pleading nil debet, the plea should be "doth, not detain.". 6 East, R. 549; Bac. Abr. Pleas, I; 1 Chit. PI. 476. 3. The plea of non detinet merely puts iii issue the simple fact of detainer; when the defendant relies upon a justifiable detainer, he must plead it specially. 8 D. P C. 347.

NON EST FACTUM, pleading. The general issue in debt on bond or other specialty, and is, in form, as follows: I " And the said C D, by E F, his attorney, conies and defends the wrong and injury, when, &c., and says, that the said supposed writing obligatory, (or 'indenture,' or 'articles of agreement,' according to the subject of the action,) is not his deed. And of this he puts himself upon the country." 6 Rand. Rep. 86; 1 Litt. R. 158.

2. Though non est factum is, in most cases, the general issue in debt on specialty, yet, when the deed is only inducement to the action, the general issue is nil debet. Steph. Pl. 174, n.

3. In covenant tlie general issue is non est factum; and its form is similar to that in debt on a specialty. Id. 174. It is, however, said, that in covenant there is, strictly speaking, no general issue, as the plea of non est factum only puts tlie deed in issue, as in debt on a specialty, and not the breach of covenant or any other matter of defence. 1 Chit. PI. 482. See generally, 1 Harring. R. 230; 6 Munf. R. 462; Minor, R. 103; 1 Harr. & Gill, 324; 13 John. R, 430; 12 John. R. 337; 2 N. H. Rep. 74; 4 Wend. R. 519; 2 N. & M. 492. See Issint; Special non est factum.

NON EST INVENTUS, practice. The sheriff's return to a writ requiring him to ,arrest the person of the defendant, which signifies that he is not to be found within his jurisdiction. The return is usually abbreviated N. E. I. Chit. Pr. Index, L. t.

NON FEASANCE, torts, contracts. The non-performance of some act which ought to be performed.

2. When a legislative act requires a person to do a thing, its non feasance will subject the party to punishment; as, if a statute require the supervisors of the highways to repair such highways, tlie neglect to repair them may be punished. Vide 1 Russ. on Cr. 48.

3. Mere non-feasance does not imply malice; this is strongly exemplified in the case of a plaintiff, who, having issued a writ of capias against his debtor, afterwards received the debt, and neglected to countermand tlie writ, in consequence of which the defendant was afterwards arrested. On a suit brought by the former defendant against tlie former plaintiff, it was held that the law did not impose on the first plaintiff the duty of countermanding his writ. If he had refused to give the countermand when requested, it might have been evidence of malice, but in such case there would have been something beyond mere non-feasance, an actual refusal. 1 B & P. 388; 3 East, R. 314; 2 Bos. & P. 129.

4. There is a difference between nonfeasance and misfeasance, (q. v.) or malfeasance. (q. v.) Vide 2 Kent, Com. 443 Story on Bailm. 9, 165; 2 Vin. Ab. 35 1 Hawk. P. C. 13; Bouv. Inst. Index, h. t.

NON FECIT. He did not make it. The name of a plea, for example, in an action of assumpsit on a promissory note. 3 Mann. Gr. 446.

NON FECIT VASTUM CONTRA PROHIBITIONEM. The name of a plea to an action founded on a writ of estrepement, that the defendant did not commit waste contrary to the prohibition. 3 Bl. Com. 226, 227.

NON INFREGIT CONVENTIONEM, pleading. A plea in an action of covenant. This plea is not a general issue, it merely denies that the defendant has broken the covenants on which he is sued. It being in the negative, it cannot be used where the breach is also in the negative. Bac Ab. Covenant L; 3 Lev. 19; 2 Taunt. 278; 1 Aik. R. 150; 4 Dall. 436; 7 Cowen, R. 71.

NON JOINDER, pleading, practice. The omission of some one of the persons who ought to have been made a plaintiff or defendant along with others is called a non joinder.

2. In actions upon contracts, where the contract has been made, with several, if their interest were joint, they miist all, if living, join in the action for its breach. 8 S., & R. 308; 10 S. & R. 257; Minor, 167; Hardin, 508. In such case the non joinder must be pleaded in abatement. Id.; 3 Bouv. Inst. n. 2749.

NON JURORS, English law. Persons who refuse to take the oaths, required by law, to support the government. 1 Dall. 170.

NON LIQUET. It is not clear.

NON MODERATE CASTIGAVIT. The name of a faulty replication to a plea of moderate castigavit. (q. v.) This replication, in such a case, is a negative. pregnant. Gould, PI. ch. 7, SS 37.

NON OBSTANTE, Engl. law. These words, which literally signify notwithstanding, are used to express the act of the English king, by which he dispenses with the law, that is, authorizes its violation.

2. He cannot by his license or dispensation make an offence dispunishable which is malum in se; but in certain matters which are mala prohibita, be may, to certain persons and on special occasions, grant a non obstante. 1 Th. Co. Litt. 76, n. 19; Vaugh. 330 to 359; Lev. 217; Sid. 6, 7; 12 Co. 18; Bac. Ab. Prerogative, D. 7. Vide Judgment non obstante veredicto.

NONOBSTANTEVEREDICTO. Notwithstanding the verdict. See Judgment non obstante veredicto.

NON OMITTAS, English practice. The name of a writ directed to the sheriff Where the bailiff of a liberty or franchise, who has the return of writs, neglects or refuses to serve a process, this writ issues commanding the sheriff to enter into the franchise and execute the process himself, or by bis officer, non omittas propter aliquam libertatem. For the despatch of business a non omittas is commonly directed in the first instance. 3 Chit. Pr. 190, 310.

NON PROS, or NON PROSEQUITUR. The name of a judgment rendered against a plaintiff for neglecting to prosecute his suit agreeably to law and the rules of the court. Vide Grah. Pr. 763; 3 Chit. Pr. 910; 1 Sell. Pr. 359; 1 Penna. Pr. 84; Caines' Pr. 102; 2 Arch. Pr. 204 and article Judgment of Non Pros.

NON RESIDENCE, eccles. law. The absence of spiritual persons from their benefices.

NON SUBMISSIT. The name of a plea to an action of debt or a bond to perform an award, by which the defendant pleads that he did not submit. Bac. Ab. Arbitr. &c., G.

NON SUM INFORMATUS, pleading. I am not informed. Vide lnformatus non SUM.

NON TENENT INSIMUL, pleadings. A plea to an action in partition, by which the defendant denies that he holds the property, which is the subject of the suit, together with the complainant or plaintiff.

NON TENUIT. He did not hold. The name of a plea in bar in replevin, when the plaintiff has avowed for rent arrear, by which the plaintiff avows that he did not hold in manner and form as the avowry alleges.

NON TENURE, pleading. A plea in a real action, by which the defendant asserted, that he did not hold the land, or at least some part of it, as mentioned in the plaintiff's declaration. 1 Mod. 250.

2. Non tenure is either a plea in bar or a plea in abatement. 14 Mass. 239; but see 11 Mass. 216. It is in bar, when the plea goes to the tenure, as when the tenant denies that he holds of the defendant, and says he holds of some other person, But when the plea goes to the tenancy of the land, as when the defendant pleads that be is not the tenant of the land, it is in abate, ment only. Id.; Bac. Ab. Pleas, &c., I 9.

NON TERM. The vacation between two terms of a court.

NON USER. The neglect to make use of a thing.

2. A right which may be acquired by use, may be lost by non-user, and an absolute discontinuance of the use for twenty years affords presumption of the extinguishment of the right, in favor of some others adverse right. 5 Whart. Rep. 584; 23 Pick. 141.

3. As an enjoyment for twenty years is necessary to found the presumption of a grant of an easement, the general rule is, there must be a similar non-user to raise the presumption of a release. But in this case the owner of the servient premises must have done some act inconsistent with, or adverse to the existence of the right. See 2 Evans's Pothier, 136; 10 Mass. R, 183; 3 Campbl. R. 614; 3 Kent, Com. 359; 1 Chit. Pr. 284, 285, 767 to 759, n. (s); 1 Ves. jr. 6, 8; 2 Supp. to Ves. jr. 442; 2 Anstr. 603; S. C. on appeal, 1 Dowl. R. 316; 4 Ad. & Ell 369; 6 Nev. & M. 230. But the dereliction or abandonment of rights affecting lands is not in all cases held to be evidenced by mere non-user.

4. As an exception to the rule may be mentioned rights to mines and minerals, with the incidental privilege of boring and working them. 16 Ves. 390; 19 Ves. 166.

5. In the civil law there is a similar doctrine: on this subject, Vide Dig. 8, 6, 5; Voet, Com. ad Pand. lib. 8, tit. 6, s. 5 et 7; 3 Toull. n. 673; Merl. Repert. mot Servitude, 30, n. 6, and 33; Civ. Code of Louis. art. 815, 816.

6. Every public officer is required to use his office for the public good; a non-user of a public office is therefore a sufficient cause of forfeiture. 2 Bl. Com. 153; 9 Co. 60. Non user, for a great length of time, will have the effect of repealing an old law. But it must be a very strong case which will have that effect. 13 S. & R. 452; 1 Bouv. Inst. n. 94.

NONSENSE, construction. That which in a written agreement or will is unintelligible.

2. It is a rule of law that an instrument shall be so construed that the whole, if possible, shall stand. When a matter is written grammatically right, but it is unintelligible, and the whole makes nonsense, some words cannot be rejected to make sense of the rest; 1 Salk. 324; but when matter is nonsense by being contrary and repugnant to, some precedent sensible latter, such repugnant matter is rejected. Ib.; 15 Vin. Ab. 560; 14 Vin. Ab. 142. The maxim of the civil law on this subject agrees with this rule: Quae in testamento ita sunt scripta, ut intelligi non possent: perinde sunt, ac si scripta non essent. Dig. 50,17,73,3. Vide articles dmbiguity; Construction; Interpretation.

3. In pleading, when matter is nonsense by being contradictory and repugnant to something precedent, the precedent matter, which is sense, shall not be defeated by the repugnancy which follows, but that which is contradictory shall be rejected; as in ejectment where the declaration is of a demise on the second day of January, and that the defendant postea scilicet, on the first of January, ejected him; here the scilicet may be rejected as being expressly contrary to the postea and the precedent matter. 5 East, 255; 1 Salk. 324.

NON SUIT. The name of a judgment given against a plaintiff, when be is unable to prove his case, or when he refuses or neglects to proceed to the trial of a cause after it has been put at issue, without determining such issue.

2. It is either voluntary or involuntary.

3. A voluntary nonsuit is an abandonment of his cause by a plaintiff, and an agreement that a judgment for costs be entered against him.

4 An involuntary nonsuit takes placs when the 'Plaintiff on being called, when his case is before the court for trial, neglects to appear, or when he has given no evidence upon which a jury could find a verdict. 13 John. R. 334.

5. The courts of the United States; 1 Pet. S. C. R. 469, 476; those of Pennsylvania; 1 S. & R. 360; 2 Binn. R. 234, 248; 4 Binn. R. 84; Massachusetts; 6 Pick. R. 117; Tennessee; 2 Overton, R. 57; 4 Yerg. R. 528; and Virginia; 1 Wash. R. 87, 219 cannot order a nonsuit against a plaintiff who has given evidence of his claim. In Alabama, unless authorized by statute, the court cannot order a nonsuit. Minor, R. 75; 3 Stew. R. 42.

6. In New York; 13 John. R 334; 1 Wend. R. 376; 12 John. R. 299; South Carolina; 2 Bay, R. 126, 445; 2 Bailey, R. 321; 2 McCord, R. 26; and Maine; 2 Greenl. R. 5; 3 Greenl. R. 97; a nonsuit may in general be ordered where the evidence is insufficent to support the action. Vide article Judgment of Nonsuit, and Grah. Pr. 269; 3 Chit. Pr. 910; 1 Sell. Pr. 463; 1 Arch. Pr. 787; Bac. Ab. h. t.; 15 Vin. Ab. 560.

Copyright © 2004 New-York-Lawyer .WS