NOMINATION TO A LIVING-contd. a living are distinct, and may reside in different persons. Presentation is the offering a clerk to the bishop. Nomination is the offering a clerk to the person who has the right of presentation. Thus, one seised of an advowson may grant to A. and his heirs that whenever the church becomes vacant, he will present such a person as He who A, or his heirs shall nominate. has the right of nomination is, to most purposes, considered as the patron of the church. Plowd. 529; Rog Ecc. Law, 5.

NON-AGE. Under twenty-one years of age in some cases, and under fourteen or twelve in others.

See titles AGE; INFANTS.

NON ASSUMPSIT (he hath not promised). The name of a plea which occurs in the action of assumpsit, by which the defendant denies that he undertook, or promised, to do the thing which the plaintiff in his declaration alleges that he did undertake and promise to do; and this plea operates as a denial, in point of fact, of the existence of any express promise of the fact alleged in the declaration, or of the matters of fact from which the promise alleged would be implied by law. Steph. on Plead. 170, 180.

NON ASSUMPSIT INFRA SEX ANNOS (he has not promised within six years). There are certain periods limited by law within which actions must be brought. In an action of assumpsit the period is six years; if, therefore, any person commences such an action for anything which did not accrue or happen within such period of six years, the defendant may plead non assumpsit infra sex annos, i.e., he made no such promise within six years, which plea is an effectual bar to the complaint; and the defendant in such case is said to plead the Statute of Limitations.

A

NON CEPIT (he has not taken). plea which occurs in the action of replevin, in which action the plaintiff alleges in his declaration that the defendant "took certain cattle or goods of the plaintiff in a certain place called, &c.," and this plea states that he did not take the said cattle or goods "in manner and form as alleged," which involves a denial both 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. on Plead. 185.

NON COMPOS MENTIS. Not master of his wits; in other words, of unsound mind.

See title LUNACY.

NON CONSTAT (it does not appear). It is by no means clear or evident; a phrase used in general to state some conclusion as not following, although it seems, primâ facie, to follow.

NON DAMNIFICATUS (not damnified or hurt). This is a plea in an action of debt on an indemnity bond, or bond conditioned "to keep the plaintiff harmless and indemnified," &c.; it is in the nature of a plea of performance, being used where the defendant means to allege that the plaintiff has been kept harmless and indemnified according to the tenor of the condition. Steph. on Plead. 388.

A

NON DETINET (he does not detain). plea which occurs in the action of detinet, by which the defendant alleges that he did not detain "the said goods" in the plaintiff's declaration specified, &c. It operates therefore as a denial of the detention of the goods in question by the defendant. Steph. on Plead. 175.

NON EST FACTUM (it is not his deed). A plea which occurs in the action of debt on bond or other specialty, and also in covenant. In this plea the defendant denies that the deed mentioned in the declaration is his deed (Steph. on Plead. 169, 172). By r. 10, T. T. 1853, in actions on specialties and covenants, the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only, and all other defences shall be specially pleaded, including matters which make the deed absolutely void as well as those which make it voidable.

NON EST INVENTUS (he is not found). When a writ is directed to the sheriff commanding him to arrest the defendant, and he is unable to do so because he cannot find him, he returns the writ with an indorsement on it to that effect, and this is technically called a return of non est inventus. However, this return is necessarily now little in use, since the facility of imprisonment for debt, and almost the practice itself of such imprisonment, have been done away with.

See title IMPRISONMENT FOR DEBT.

NON-FEASANCE (non-performance). The omitting to do what ought to be done, e.g., where a gratuitous bailee simply refuses to enter upon the agency, and for which mere non-feasance he is held to be not liable. Balfe v. West, 13 C. B. 466.

See also title MISFEASANCE.

NON-JOINDER. The not joining of any person or persons as a co-defendant or coplaintiff. It may be further illustrated by the following passage from Tidd's Practice: "In actions upon contracts, where there are several parties, the action should be brought by or against all of them, if living, or if some are dead, by or against the survivors; and if an action be brought by one of several parties on a joint contract made with all of them, the nonjoinder may be pleaded in bar," i.e., the fact of all the parties to the coutract not having been joined in the action may be pleaded in bar. Tidd's New Pract. 318.

NON OBSTANTE VEREDICTO (notwithstanding the verdict). When the defence of the defendant in an action put upon the record is not a legal defence to the action in point of substance, and the defendant obtains a verdict, the Court, upon motion, will give the plaintiff leave to sign judgment notwithstanding the verdict, provided the merits of the case be very clear; and this is called judgment non obstante veredicto. 2 Arch. Pract. 1551.

NON PROS., or NON PROSEQUITUR (he does not prosecute or follow up). If in the proceedings of an action at law the plaintiff neglects to take any of those steps! which he ought to take within the time prescribed by the practice of the Courts for that purpose, the defendant may enter judgment of non pros. against him, whereby it is adjudged that the plaintiff does not follow up (non prosequitur) his suit as he ought to do, and therefore the defendant ought to have judgment against him. Smith's Action at Law, 96.

NONSUIT (non est prosecutus). A renunciation or giving up the suit by the plaintiff; and this is usually done on his discovering some error or defect, or when he finds that his evidence is not sufficient to maintain his case. The stage of the proceedings at which a plaintiff is nonsuited is usually just before the judge has summed up, but it may be done at any time before the jury have delivered their verdict. It is, however, entirely optional with the plaintiff whether he will submit to a nonsuit or not; he cannot be compelled to do so, but may insist on the case going to the jury, and take his chance of the verdict. In cases, however, where it is doubtful whether the verdict will be a favourable one, it is usual for the plaintiff to choose

NONSUIT-continued.

(or elect, as it is termed) to be nonsuited, because after a nonsuit he may commence another suit against the defendant for the same cause of action, which may be advisable if he can come better prepared with evidence, or can otherwise repair the defect which was the cause of his failure; but if a verdict be once given, and judgment follow thereon, he is for ever barred from suing the defendant upon the same ground of complaint. 1 Arch. Pract. 409, 444; Steph. on Plead. 120.

NON SUM INFORMATUS (I am not informed). Judgment by default is either by nil dicit, that is, where the defendant is stated to have appeared, but to have said nothing in bar or preclusion of the action; or by non sum informatus, where he is said to appear by attorney, but the attorney says that he is not informed by the defendant of any answer to be given. This latter is used only in cases where judgment is entered in pursuance of a previous agreement between the parties. Les Termes de la Ley.

NOTARY.

In ancient times a notary was a scribe or scrivener, who took minutes and made short drafts of writings and instruments, both of a public and private nature. In the present day, however, he is called a notary public, who confirms and attests the truth of any deeds or writings, in order to render the same available as evidence of the facts therein contained in any other country. Some of the chief duties of notaries are connected with mercantile trans-' actions, as in noting bills of exchange and promissory notes which have been presented for payment and dishonoured, the noting of a foreign bill being, like the notice of dishonour of an inland bill, a necessary preliminary to bringing an action upon it against the indorsers and (usually) against the drawer.

NOT GUILTY-continued. evidence being doubtful, or from any other cause, notwithstanding he may in fact have committed the act which is usually taken to constitute the offence. An accused person is, therefore, in all cases justified in pleading not guilty to a criminal charge. On the other hand, in civil cases, when a defendant pleads not guilty he is said to plead the general issue, whereby he is taken to deny the gist of the action only. For example, in actions for torts the plea of not guilty operating as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant; it follows that in an action for a nuisance to the occupation of a house by carrying on an offensive trade the plea of not guilty will operate as a denial only that the defendant carried on the alleged trade in such a way as to be a nuisance to the occupation of the house, but will not operate as a denial of the plaintiff's occupation of the house. And again, in an action for slander of a plaintiff in his office, or profession, or trade, the plea of not guilty will operate as a denial of speaking the words, of speaking them maliciously and in the defamatory sense imputed, and with reference to the plaintiff's office, or profession, or trade, but will not operate as a denial of the fact of the plaintiff holding the office, or profession, or trade alleged. See Smith's Action at Law, p. 533.

NOTICE. This is a head of equity of great importance in the two principal respects following, namely:

(1.) As perfecting the assignment of choses in action; and

(2.) As affecting or not affecting subsequent interests.

But in regard to both these branches notice may be either actual or constructive, with this difference, that actual notice is the more common of the two in respect of the former branch, and constructive notice the more common in respect of the latter. For, firstly, actual notice is any express intimation given by a person interested, or claiming to be interested, in the chose in action to the person having present control over it, on purpose to bind him as to such control, and thereby to complete, as far as possible, the rights of the person giving the notice. And, secondly, constructive notice is notice implied or inferred from the proof of surrounding circumstances, -an insecure form of notice, which the person claiming a chose in action should in no case rely upon. Notice has been inferred from two states of circumstances in particular, viz., (1.) Where actual notice of some general charge has been

NOTICE-Continued.

given, and if the fact had been inquired into, the person receiving such notice would have been naturally led on to notice of other things, but he has neglected all inquiry, wherefore of these latter he is taken to have had constructive notice; and (2.) Where the circumstances are such as shew the person charged with constructive notice to have wilfully, and not negligently merely, abstained from inquiry for the purpose of avoiding notice. For the first species of constructive notice see Biscoe v. Banbury (Earl) (1 Ch. Ca. 287); and for the second species, Birch v. Ellames, (2 Anstr. 427). And there is a third species of constructive notice arising from the relation of the parties, as being that of principal and agent, client and solicitor, and such like, where the transaction is either contemporaneous with, or shortly subsequent to, another transaction communicating notice (Fuller v. Bennett, 2 Hare, 394), the subject matter of the notice having been a material part of the earlier transaction. Wyllie v. Pollen, 32 L. J. (Ch.) N. S. 782.

Considering the subject of Notice in its two branches,-and, Firstly, Notice as perfecting the assignment of choses in action. In order that third parties may be bound it is necessary, with regard to a chose in action, to give notice to the person in whose hands it is, or when realising itself will be, such notice being, in the case of a chose in action which does not admit of actual delivery, precisely equiva lent in its effect to the actual delivery of a chattel in possession which admits of delivery (Ryall v. Rowles, 1 Ves. 348). Therefore,

(a.) In order to take a chose in action out of the order and disposition of the creditor in case of his bankruptcy it is necessary to give notice to the debtor. Ryall v. Rowles,

supra.

(b.) In the case of a policy of assurance notice must be given to the insurance office. Thompson v. Tomkins, 2 Dr. & Sm. 8.

(c.) In the case of an assigument of freight notice must be given to the charterer. Brown v. Tanner, L. R. 2 Eq. 806.

(d.) In the case of an assignment of a legacy, general or specific, the executors not having yet assented to it, notice to the executors must be given. Browne v. Savage, 4 Dr. 635.

(e.) In the case of an assignment of the costs of a suit not yet ordered to be paid notice should be given to the trustees or other the parties to whom they will be payable. Day v. Day, 1 D. & J. 144.

(f.) In the case of an assignment of shares in a company notice must be given to the company. Ex parte Boulton, 1 D.

NOTICE continued.

having notice of it (Simpson v. Morley, 2 K. & J. 71); but not a subsequent purchaser for value or mortgagee not having notice of it. Robinson v. Woodward, 4 De G. & Sm. 562.

(e.) A registered judgment which has been otherwise duly perfected does not affect a purchaser whose contract is prior in date to the judgment, although the conveyance should be subsequent (Brown v. Perrott, 4 Beav. 585), without reference to the question of notice.

(1) A registered judgment which has been otherwise duly perfected does not affect a prior voluntary settlement (Beavan v. Oxford (Earl), 6 De G. M. & G. 507); and, à fortiori, does not affect a prior purchase for value or mortgage, without reference to the question of notice. And see title JUDGMENT DEBTS.

And with reference to tacking the following peculiar rules have been established as between mortgagees and judgment creditors:

(a.) If one who is a judgment creditor to begin with buys in a first mortgage, he shall not tack the judgment to that mortgage so as to gain a priority over a second mortgagee who was such at the date of his judgment, and without reference to the question of notice. Brace v. Marlborough (Duchess), 2 P. Wms. 491.

(b.) If one who is a first legal mortgagee to begin with buys in or obtains a judg ment for a further sum, and had no notice of any subsequent charge at the time of getting hold of such judgment, he shall tack the judgment to his mortgage and obtain priority over the subsequent charge. Brace v. Marlborough (Duchess), supra.

And with reference to the successive assignees of choses in action the following rules have been established:

(a.) As between two or more particular assignees (being of course equitable),

(aa.) If both or all the notices are given before the chose in action has realised itself, so as to be ready to be delivered actually, in the form of money or other proceeds, then priority of notice gives no priority of title. Buller v. Plunkett, 1 J. & H. 441. But

(bb.) If otherwise, the successive dates of the successive notices establish the successive priorities, or the one priority, as the case may be, this being the general effect of notice in such cases.

(b.) As between the trustee in bankruptcy or a general assignee on the one hand, and a particular assignee on the other, by the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), s. 15, the property of the bankrupt which vests in his trustee for division among the creditors of the bank

NOTICE continued.

rupt comprises (among other things) (1.) All such property as may belong to, or be vested in, the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve upon him during its continuance; and (2.) All goods and chattels being, at the commencement of the bankruptcy, in the possession, order, or disposition of the bankrupt, being a trader, by the consent and permission of the true owner, of which goods and chattels the bankrupt is reputed owner, or of which he has taken upon himself the sale or disposition as owner; but it is provided that things in action other than debts due to the bankrupt in the course of his trade or business shall not be deemed goods and chattels within the meaning of this order and disposition clause; and in the first schedule to the Act the word "trader' is made to include the occupations specified in that schedule. Now, subject to that section, and so far as it may not have altered the previous law, the following rules have been established as between a trustee in bankruptcy or general assignee on the one hand, and a particular assignee on the other:

(aa.) If the particular assignee were of a date prior to the bankruptcy of the debtor, and had also given notice prior thereto, he retained his priority, but failing such notice lost it, in favour of the trustee in bankruptcy or general assignee who gave notice, the particular assignment not being fraudulent:

(bb.) If the particular assignee was of a date posterior to the bankruptcy of the debtor, but had given notice of his assignment before the trustee in bankruptcy or general assignee had given notice of the bankruptcy or general assignment, the particular assignee (the particular assignment not being fraudulent) acquired priority over the trustee in bankruptcy, or general assignee, who had omitted to give such notice (In re Barr's Trusts, 4 K. & J. 219; In re Atkinson, 2 De G. M. & G. 140); but by the Bankruptcy Act, 1849, s. 141, and the decision in Re Mary Coombe (1 Giff. 91), he was deprived of such priority over the trustee in bankruptcy; but having regard to ss. 92, 94, and 95 of the Bankruptcy Act, 1869, the same general rules as applied before the Bankruptcy Act, 1849, and the last-mentioned decision seem to have been restored in all cases where the particular assignment, although subsequent to the commencement of the bankruptcy, is prior to the date of the order of adjudication, subject only to the limitation imposed by s. 15 of the Bankruptcy Act, 1869, stated above. The subsequent particular assignee who gives notice still has priority over a prior general