NAUFRAGE, French mar. law. When, by the violent agitation of the
waves, the impetuosity of the winds, the storm, or the lightning, a vessel is
swallowed up, or so shattered that there remain only the pieces, the accident is
2. It differs from echouement, which is, when the vessel, remains whole, but
is grounded; or from bris, which is, when it strikes against a rock or a coast;
or from sombrer, which is, the sinking of the vessel in the sea, when it is
swallowed up, and which may be caused by any accident whatever. Pardes. n. 643,
NAUTAE. Strictly speaking, only carriers by water are comprehended
under this word. But the rules which regulate such carriers have been applied to
carriers by land. 2 Ld. Raym. 917; 1 Bell's Com. 467.
NAVAL OFFICER. The name of an officer of the United States, whose
duties are prescribed by various acts of congress.
2. Naval officers are appointed for the term of four years, but are removable
from office at pleasure. Act of May 15, 1820, 1, 3 Story, L. U . S. 1790.
3. The act of March 2, 1799, 21, 1 Story, L. U. S. 590, prescribes that the
naval officer shall receive copies of all manifests, and entries, and shall,
together with the collector, estimate the duties on all goods, wares, and
merchandise, subject to duty, (and no duties shall be received without such
estimate,) and shall keep a separate record thereof, and shall countersign all
permits, clearances, certificates, debentures, and other documents, to be
granted by the collector; he shall also examine the collector's abstracts of
duties, and other accounts of receipts, bonds, and expenditures, and, if found
right, he shall certify the same.
4. And by 68, of the same law, it is enacted, that every collector, naval
officer, and surveyor, or other person specially appointed, by either of them,
for that purpose, shall have full power and authority to enter any ship or
vessel, in which they shall have reason to suspect any goods, wares, or
merchandise, subject to duty, are concealed, and therein to search for, seize,
and secure, any such goods, wares, or merchandise and if they shall have cause
to suspect a concealment thereof in any particular dwelling house, store,
building, or other place, they or either of them shall, upon proper application,
on oath, to any justice of the peace, be entitled to a warrant to enter such
house, store, or other place (in the day time only,) and there to search for
such goods; and if any shall be found, to seize and secure the same for trial;
and all such goods, wares and merchandise, on which the duties shall not have
been paid, or secured to be paid, shall be forfeited.
NAVICULARIS, civil law. He who had the management and care of a ship.
The same as our sea captain. Bouch. Inst. n. 359. Vide Captain.
NAVIGABLE. Capable of being navigated.
2. In law, the term navigable is applied to the sea, to arms of the sea, and
to rivers in which the tide flows and reflows. 5 Taunt. R. 705; S. C. Eng. Com.
Law Rep. 240; 5 Pick. R. 199; Ang. Tide Wat. 62; 1 Bouv. Inst. n. 428.
3. In North Carolina; 1 M'Cord, R. 580; 2 Dev. R. 30; 3 Dev. R. 59; and in
Pennsylvania; 2 Binn. R. 75; 14 S. & R. 71; the navigability of a river does
not depend upon the ebb and flow of the tide, but a stream navigable by sea
vessels is a navigable river.
4. By the common law, such rivers as are navigable in the popular sense of
the word, whether the tide ebb and flow in them or not, are public highways.
Ang. Tide Wat. 62; Ang. Wat. Courses, 205 1 Pick. 180; 5 Pick. 199; 1 Halst. 1;
4 Call, 441: 3 Blackf. 136. Vide Arm of the sea; Reliction; River.
NAVIGATION. The act of traversing the sea, rivers or lakes, in ships
or other vessels; the art of ascertaining the geographical position of a ship,
and directing her course.
2. It is not within the plan of this work to copy the acts of congress
relating to navigation, or even an abstract of them. The reader is referred to
Story's L. U. S. Index, h. t.; Gordon's Dic. art. 2905, et seq.
NAVY. The whole shippings taken collectively, belonging to the
government of an independent nation; the ships belonging to private individuals
are not included in the navy.
2. The constitution of the United States, art. 1, s. 8, vests in congress the
power to provide and maintain a navy."
3. Anterior to the war of 1812, the navy of the United States bad been much
neglected, and it was not until during the late war, when it fought itself into
notice, that the public attention was seriously attracted to it. Some
legislation favorable to it, then took place.
4. The act of January 2, 1813, 2 Story's L. U. S. 1282, authorized the
president of the United States, as soon as suitable materials could be procured
therefor, to cause to be built, equipped and employed, four ships to rate not
less than seventy-four guns, and six ships to rate forty-four guns each. The sum
of two millions five hundred thousand dollars is appropriated for the
5. And by the act of March 3, 1813, 2 Story, L. U. S. 1313, the president is
further authorized to have built six sloops of war, and to have built or
procured such a number of sloops of war or other armed vessels, as the public
service may require on the lakes. The sum of nine hundred thousand dollars is
appropriated for this purpose, and to pay two hundred thousand dollars for
vessels already procured on the lakes.
6. The act of March 3, 1815, 2 Story, L. U. S. 1511, appropriates the sum of
two hundred thousand dollars annually for three years, towards the purchase of a
stock of materials for ship building.
7. The act of April 29, 1816, may be said to have been the first that
manifested the fostering care of congress. By, this act the sum of one million
of dollars per annum for eight years, including the sum of two hundred thousand
dollars per annum appropriated by the act of March 3, 1815, is appropriated. And
the president is authorized to cause to be built nine ships, to rate not less
than seventy-four guns each, and twelve ships to rate not less than forty-four
guns each, including one seventy-four and three forty-four gun ships, authorized
to be built by the act of January 2d, 1813. The third section of this act
authorizes the president to procure steam engines and all the imperishable
materials for building three steam batteries.
8. The act of March 3, 1821, 3 Story's L. U. S. 1820, repeals the first
section of the act of the 29th April, 1816, and instead of the appropriation
therein contained, appropriates the sum of five bundred thousand dollars per
annum for six years, from the year 1821 inclusive, to be applied to carry into
effect the purposes of the said act.
9. To repress piracy in the gulf of Mexico, the Act of 22d December, 1822,
was passed, 3 St. L. U. S. 1873. It authorizes the president to purchase or
construct a sufficient number of vessels to repress piracy in that gulf and the
adjoining seas and territories. It appropriates one hundred and sixty thousand
dollars for the purpose.
10. The act of May 17, 1826, authorizes the suspension of the building of one
of tlie ships above authorized to be built, and authorizes the president to
purchase a ship of not less than the smallest class authorized to be built by
the act of 29th April, 1816.
11. The act of March 3 , 1827, 3 St. L. U. S. 2070, appropriates five hundred
thousand dollars per annum for six years for the gradual improvement of the navy
of the United States, and authorizes the president to procure materials for ship
building. A further appropriation is made by the act of March 2, 1833, 4 Sharsw.
con. of St. L. U. S. 2346, of five hundred thousand dollars annually for six
years from and after, the third of March, 1833, for the gradual improvement of
the navy of the United States; and the president is authorized to cause the
above mentioned appropriatiou to be applied as directed by the act of March 3,
12. For the rules and regulations of the navy of the United States, the
reader is referred to the act " for the better government of the navy of the
United States." 1 St. L. U. S. 761. Vide article Names of Ships.
NE DISTURBA PAS, pleading. The general issue in quare impedit. Hob.
162 Vide Rast, 517; Winch. Ent. 703.
NE BAILA PAS. He did not deliver. This is a plea in detinue, by which
the defendant denies the delivery to him of the thing sued for.
NE DONA PAS, or NON DEDIT, pleading. The general issue in formedon;
and is in the following formula: "And the said C D, by J K, his attorney, comes
and defends the right, when, &c., and says, that the said E F did not give
the said manor, with the appurtenances, or ally part thereof, to the said G B,
and the heirs of his body issuing, in manner and form as the said A B hath in
his count above alleged.' And of this the said C D puts himself upon the
country." 10 Went. 182.
NE EXEAT REPUBLICA, practice. The name of a writ issued by a court of
chancery, directed to the sheriff, reciting that the defendant in the case is
indebted to the a complainant, and, that he designs going quickly into parts
without the state, to the damage of the complainant, and then commanding him to
cause the defendant to give bail in a certain sum that he will not leave the
state without leave of the court, and for want of such bail that he tlie
sheriff, do commit the defendant to prison.
2. This writ is used to prevent debtors from escaping from their creditors.
It amounts in ordinary civil cases, to nothing more than process to hold to
bail, or to compel a party to give security to abide the decree to be made in
his case. 2 Kent, Com. 32 1 Clarke, R. 551,; Beames' Ne Excat; 13 Vin. Ab. 537;
1 Supp to Ves. jr. 33, 352, 467; 4 Ves. 577 5 Ves. 91; Bac. Ab. Prerogative, C;
8 Com. Dig. 232; 1 Bl. Com. 138 Blake's Ch. Pr. Index, h. t.; Madd. Ch. Pr.
lndex, h. t.; 1 Smith's Ch. Pr. 576; Story's Eq. Index, h. t.
3. The subject may be considered under the following heads.
4. - 1. Against whom a writ of ne exect may be issued. It may be issued
against foreigners subject to the jurisdiction of the court, citizens of the
same state, or of another state, when it appears by a positive affidavit that
the defendant is about to leave the state, or has threatened to do so, and that
the debt would be lost or endangered by bis departure. 3 Johns. Ch. R. 75,
7 Johns. Ch. R. 192; 1 Hopk. Ch. R. 499. On the same principle which has been
adopted in the courts of law that a defendant could not be held to bail twice
for the same cause of action, it has been decided that a writ of ne exeat was
not properly issued against a defendant who had been held to bail in an action
at law. 8 Ves. jr. 594.
5. - 2. For what claims. This writ can be issued only. for equitable demands.
4 Desaus. R. 108; 1 Johns. Ch. R. 2; 6 Johns. Ch. R. 138; 1 Hopk. Ch. R. 499. It
may be allowed in a case to prevent the failure of justice. 2 Johns. Chanc. Rep.
191. When tlie demand is strictly legal, it cannot be issued, because the court
has no jurisdiction. When the court has concurrent jurisdiction with the courts
of common law, the writ may, in such case, issue, unless the party has been
already arrested at law. 2 Johns. Ch. R. 170. In all cases, when a writ of Be
exeat is claimed, the plaintiff's equity must appear on the face of the bill. 3
Johns. Ch. R. 414.
6.-3. The amount of bail. The amount of bail is assessed by the court itself
and a sum is usually directed sufficient to cover the existing debt, and a
reasonable amount of future interest, having regard to the probable duration of
the suit. 1 Hopk. Ch. R. 501.
NE LUMINIBUS OFFICIATOR, civil law. The name of a servitude which
restrains the owner of a house from making such erections as obstruct the light
of the adjoining house. Dig. 8, 4, 15, 17.
NE RECIPIATUR. That it be not received. A caveat or words of caution
given to a law officer, by a party in a cause, not to receive the next
proceedings of his opponent. 1 Sell. Br. 7.
NE RELESSA PAS. The name of a replication to a plea, of release, by
which tlie plaintiff insists he did not release. 2 Buls. 55.
NE UNJUSTE VEXES, old Engl. law. The name of a writ which issued to
relieve a tenant upon, whom his lord had distrained for more services than he
was bound to perform.
2. It was a prohibition to the lord, not unjustly to distrain or vex his
tenant. F. N. B. h. t.
NE UNQUES ACCOUPLE, pleading. A plea by which the party denies that he
ever was lawfully married to the person to whom it refers. See the form, 2 Wils.
R. 118; Morg. 582; 10 Went. Prec. Pl. 158; 211 Bl. 145; 3 Chit. PI. 599.
NE UNQUES EXECUTOR, pleading. A plea by which the party who uses it
denies that the plaintiff is an executor, as he claims to be; or that the
defendant is executor, as the plaintiff in his declaration charges him to be. 1
Chit. Pl. 484; 1 Saund. 274, n. 3; Coin. Dig. Pleader, 2 D, 2 2 Chit. PI.
NE UNQUES SEISIE QUIZ DOWER, pleading. A plea by which a defendant
denies the right of a widow who sues for, and demands her dower in lands,
&c., late of her husband, because the husband was not, on the day of her
marriage with him, or any time afterwards, seised of such estate, so that she
could be endowed -of the game. See 2 Saund. 329; 10 Went. 159; 3 Chitt. Pl. 598,
and the authorities there cited.
NE UNQUES SON RECEIVER, pleading. The name of a plea in an action of
account render, by which the defendant affirms that he never was receiver of
tlie plaintiff. 12 Vin. Ab. 183.
NE VARIETUR. These words, which literally signify that it be not
varied or changed, are sometimes written by notaries public upon bills or notes,
for the purpose of identifying them. This does not destroy their negotiability.
8 Wheat. 338.
NEAT or NET, contracts. The exact weight of an article, without the
bag, box, keg, or other thing in which it may be enveloped.
NEATNESS, pleading. The statement, in apt and appropriate words, of
all the necessary facts, and ne more. Lawes on Pl. 62.
NECESSARIES. Such things as are proper and requisite for tlie
sustenance of man.
2. The term necessaries is not confined merely to what is requisite barely to
support life, but includes many of the conveniences of refined society. It is a
relative term, which must be applied to the circumstances and conditions of the
parties. 7 S. & R. 247. Ornaments and superfluities of dress, such as are
usually worn by the party's rank and situation in life, have been classed among
necessaries. 1 Campb. R. 120; 7 C. & P. 52; 1 Hodges, R. 31; 8 T. R. 578; 3
Campb. 326; 1 Leigh's N. P. 135.
3. Persons incapable of making contracts generally, may, nevertheless, make
legal engagements for necessaries for which they, or those bound to support
them, will be held responsible. The classes of persons who, although not bound
by their usual contracts, can bind themselves or others for necessaries, are
infants and married women.
4. - 1. Infants are allowed to make binding contracts whenever it is for
their interest; when, therefore, they are unprovided with necessaries, which,
Lord Coke says, include victuals, clothing, medical aid, and "good teaching and
instruction, whereby he may profit himself afterwards," they may buy them, and
their contracts will be binding. Co. Litt. 172 a. Necessaries for the infant's
wife &lad children, are necessaries for himself. Str. 168; Com. Dig. Enfant,
B 5; 1 Sid. 112 2 Stark. Ev. 725; 8 Day, 37 1 Bibb, 519; 2 Nott & McC. 524;
9 John. R. 141.; 16 Mass. 31; Bac. Ab. Infancy, I.
5. - 2. A wife is allowed to make contracts for necessaries, and her husband
is generally responsible upon tbem, because his assent is presumed, and even if
notice be given not to trust her, still he would be liable for all such
necessaries as she stood in need of; but in this case, the creditor would be
required to show she did stand in need of the articles furnished. 1 Salk. 118
Ld. Raym. 1006. But if the wife elopes, though it be not with an adulterer, ho
is not chargeable even for necessaries; the very fact of the slopement and
'Separation, is sufficient to put persons on inquiry, and whoever gives credit
to the wife afterwards, gives it at his peril. 1 Salk. 119; Str. 647; 1 Sid.
109; S. C. 1 Lec. 4; 12 John. R. 293; 3 Pick. R. 289; 2 Halst. 146; 11 John. R.
281; 2 Kent, Com. 123; 2 St. Ev. 696; Bac. Ab. Baron and Feme, H; Chit. Contr.
Index, h. t.; 1 Hare & Wall. Sel. Dec. 104, 106; Ham. on Parties, 217.
NECESSARY AND PROPER. The Constitution of the United States, art. 1,
s. 8, vests in congress the power " to make all laws, which shall be necessary
and proper, for carrying into execution the foregoing powers, and all other
powers vested by this constitution in the government of the United States, in
any department or officer thereof."
2. This power bas ever been viewed with perhaps unfounded jealousy and
distrust. is a power expressly given, which, without this clause, would, be im
lied. The plain import of the clause is, that congress shall have all incidental
and instrumental powers, necessary and proper to carry into execution all the
express powers. It neither enlarges any power, specifically granted, nor is it a
grant of any new power to congress. It is merely a declaration for the removal
of all uncertainty, that the means of carrying into execution those already
granted, are included in the grant.
3. Some controversy has taken place as to what is to be considered "
necessary; "it has been contended that by this must be understood what is
indispensable; but it is obvious the term necessary means no more than useful,
needful, requisite, incidental, or conducive to. It is in this sense the word
appears to have been used, when connected with the word " proper." 4 Wheat.
418-420; 3 Story, Cons-t. 1231 to 1253.
NECESSARY INTROMISSION, Scotch law. When the husband or wife
continues, after the decease of his or her companion in possession of the
decedent's goods, for their preservation.
NECESSITY. In general, whatever makes the contrary of a thing
impossible, whatever may be the cause of such impossibilities,
2. Whatever is done through necessity, is done without any intention, and as
the act is done without will, (q. v.) and is compulsory, the agent is not
legally responsible. Bac. Max. Reg. 5. Hence the maxim, necessity has no law;
indeed necessity is itself a law which cannot be avoided nor infringed. Clef des
Lois Rom. h. t.; Dig 10, 3, 10, 1; Com. Dig. Pleader, 3 M 20, 3 M 30.
3. It follows, then, that the acts of a man in violation of law., or to the
injury of another, may be justified by necessity, because the actor has no will
to do or not to do the thing, he is a mere tool; but, it is conceived, this
necessity must be absolute and irresistible, in fact, or so presumed in point of
4. The cases which are justified by necessity, may be classed as follows: I.
For the preservation of life; as if two persons are on the same plank, and one
must perish, the survivor is justified in having thrown off the other, who was
thereby drowned. Bac. Max, Reg. 5.
5. - 2. Obedience by a person subject to the power of another; for example,
if a wife should commit a larceny with her husband, in this case the law
presumes she acted by coercion of her husband, and, being compelled, by
necessity, she is justifiable. 1 Russ. Cr. 16, 20; Bac. Max. Reg. 5.
6. - 3. Those cases which arise from the act of God, or inevitable accident,
or from the act of man, as public enemies. Vide dct of God; Inevitable Accident
and also 15 Vin. Ab. 534 Dane's Ab h. t.; 2 Stark. Ev. 713; Marsh. Ins. b. 1, c.
6, s. 3 Jacob's Intr. to. Com. Law. Reg. 74.
7. - 4. There is another species of necessity. The actor in these cases is
not compelled to do the act whether he will or not, but he has no choice left
but to do the act which may be injurious to another, or to lose the total use of
his property. For example, when a man's lands are surrounded by those of others,
so that he cannot enjoy them without trespassing on his neighbors. The way which
is thus obtained, is called a way of necessity. Gale and Whatley on Easements,
71; 11 Co. 52; Hob. 234; 1 Saund. 323, note. See 3 Rawle, R. 495; 3 M'Cord, R.
131; Id. 170; 14 Mass. R. 56; 2 B. & C. 96; 2 Bing. R. 76; 8 T. R. 50; Cro.
Jac. 170; 2 Roll. Ab. 60; 3 Kent, Com. 423; 3 Rawle's R. 492; 1 Taunt. R. 279; 8
Taunt. R. 24; ST. R. 50; Ham. N. P. 198; Cro. Jac. 170; 2 Bouv. Inst. n. 1637;
NEGATION. Denial. Two negations are construed to mean one affirmation.
Dig. 50, 16, 137.
NEGATIVE. This word has several significations. 1. It is used in
contradistinction to giving assent; thus we say the president has put his
negative upon such a bill. Vide Veto. 2. It is also used in contradistinction to
affirmative; as, a negative does not always admit of the simple and direct proof
of which an affirmative is capable. When a party affirms a negative in his
pleadings, and without the establishment of which, by evidence, he cannot
recover or defend himself, the burden of the proof lies upon him, and he must
prove the negative. 8 Toull. n. 18. Vide 2 Gall. Rep. 485; 1 McCord, R. 573; 11
John. R. 513; 19 John. R. 345; 1 Pick. R. 375; Gilb. Ev. 145; 1 Stark. Ev. 376;
Bull. N. P. 298; 15 Vin. Ab. 540; Bac. Ab. Pleas, &c. I.
v202. Although as a general rule the affirmative of every issue must be
proved, yet this rule ceases to operate the moment the preumption of law is
thrown into the other scale. When the issue is on the legitimacy of a child,
therefore, it is incumbent on the party asserting the illegitimacy to prove it.
2 Selw. N. P. 709. Vide Affirmative Innocence.
NEGATIVE AVERMENT, pleading, evidence. An averment in some of the
pleadings in a case in which a negative is asserted.
2. It is a general rule, established for the purpose of shortening and
facilitating investigations, that the point in issue is to be proved by the
party who asserts the affirmative; 1 Phil. Ev. 184; Bull N. P. 298; but as this
rule is not founded on any presumption of law in fav-or of the party, but is
merely a rule of practice and conveience, it, ceases in all cases when the
presumption of law is thrown into the opposite scale. Gilb. Ev. 145. For
example, when the issue is on the legitimacy of a child born in lawful wedlock,
it is, incumbent on the party asserting its illegitimacy to prove it. 2 Selw. N.
P. 709. 3. Upon the same principle, when, the negative averment involves a
charge of criminal neglect of duty, whether official or otherwise, it must be
proved, for the law presumes every man to perform the duties which it imposes. 2
Gall. R. 498; 19 John. R. 345; 10 East, R. 211; 3 B. & P. 302; 3 East, R.
192; 1 Mass. R. 54; 3 Campb. R. 10; Greenl. Ev. SS 80; 3 Bouv. Inst. n. 3089.
Vide Onus Probandi.
NEGATIVE CONDITION, contracts, wills. One where the thing which is the
subject of it must not happen; as, if I do not marry. Poth. Ob. n. 200; 1 Bouv.
Inst. n. 751.
NEGATIVE PREGNANT, pleading. Such form of negative expression, in
pleading, as may imply or carry within it an affirmative.
2. This is faulty, because the meaning of such form of expression is
ambiguous. Example: in trespass for entering the plaintiff's house, the
defendant pleaded, that the plaintiff's daughter gave him license to do so; and
that he entered by that license. The plaintiff replied that he did not enter by
her license. This was considered as a negative pregnant and it was held the
plaintiff should have traversed the entry by itself, or the license by itself,
and not both together. Cro. Jac. 87.
3. It may be observed that this form of traverse may imply; or carry within
it, that the license was given, though the defendant did not enter by that
license. It is therefore in the language of pleading said to be pregnant with
the admission, namely, that a license was given: at the same time, the license
is not expressly admitted, and the effect therefore is, to leave it in doubt
whether the plaintiff means to deny the license, or to deny, that the defendant
entered by virtue of that license. It is this ambiguity which appears to
constitute the fault. 28 H. VI. 7; Hob. 295; Style's Pr. Reg. Negative Pregnant.
Steph. PI. 381; Gourd, Pl. c. 6, 29-37.
4. This rule, however, against a negative pregnant, appears, in modern times
at least, to have received no very strict construction; for many cases have
occurred in which, upon various grounds of distinction from the general rule,
that form of expression has been free from objection. See several instances in
Com. Dig. Pleader, R. 6; 1 Lev. 88; Steph. Pl. 383. Vide Arch. Civ. PI. 218;
Doct. Pl. 817; Lawe's Civ. Pl. 114; Gould, Pl. c. 6, 36.
NEGATIVE STATUTE. One which is enacted in negative terms, and which so
controls the common law, that it has no force in opposition to the statute. Bro.
Parl. pl. 72; Bac. Ab. Statutes, G.