p. 969); (3) by 32 & 33 Vict. c. 26 the provisions of the Act are extended to the case of burial-grounds; and (4) the Act does not make good a title which is defective under the Mortmain Act (Bunting v. Sergeant, 1878, 13 Ch. D. 330). By the Conveyancing and Law of Property Act, 1881, s. 31, if a trustee dies, the person nominated in the instrument, or if none such, the continuing trustees, or the personal representative of the last surviving or continuing trustee, may appoint the new trustee or trustees. The statute also enacted (1) that a declaration in the deed appointing the new trustee, or (2) in the deed discharging the old trustee, vesting the trust property, operates without any conveyance or assignment. By the Trustees' Appointment Act, 1890, s. 7, where, owing to the non-existence of a power in the trust-deed authorising the meeting of the members to appoint new trustees, an appointment of new trustees is made by the surviving trustee or trustees, or by the personal representative of the last trustee, such appointment may be made under Peto's Act.

The act of the majority of the trustees within the trust binds the minority (Perry v. Shipway, 1860, 1 Gif. 9; but see Cooper v. Whitehouse, supra). The trustees can remove the minister when the legal estate is in them (Doe d. Jones v. Jones, supra), but the Court will prevent the arbitrary enforcement of this right (A.-G. v. Pearson, supra). Trustees can alienate or otherwise use the property in the interests of the charity. Under Romilly's Act the sanction of the Court to the sale could be obtained by petition; and as places of religious worship are exempt from the Charity Trusts Act, 1853, the trustees can do this without the sanction of the Charity Commissioners. But it is cheaper to apply to the Charity Commissioners for power of sale, and the Commissioners can also sanction the raising of a mortgage on the property (16 & 17 Vict. c. 137; 18 & 19 Vict. c. 124).

See articles on ATHEISM; BAPTISM; BLASPHEMY; BURIAL; COMMON LAW; CHURCHWARDEN; CHARITIES; CONVENTICLE ACT; CHURCH OF ENGLAND; ENDOWED SCHOOLS; HERESY; MARRIAGE; MORTMAIN; MINISTER; PROTESTANT; TEST ACT; TOLERATION ACT; TRUSTS; ROYAL SUPREMACY; UNIFORMITY, ACTS OF.

[Authorities.-Hallam, Const. Hist. of England; Gardiner, Hist. of England; Froude, Hist. of England; Neal, Hist. of the Puritans; T. Charles, Welsh Methodists Vindicated; Phillimore, Ecclesiastical Law; Burn, Ecclesiastical Law, article "Dissenter;" Burn, Law Dictionary; Winslow, Nonconformists; Tudor, Charitable Trusts; Lewin, Trusts; Boyle, Law of Charities; Legal Handbook for the Calvinistic Methodist Connexion.]

None Effect.-See VOID AND OF NONE EFFECT.

Non est inventus. This expression forms the proper return to be made by a sheriff to a writ commanding him to arrest a defendant, when he is unable to do so owing to the defendant not being within his bailiwick. Technically, such a return is known as one of non est inventus. Sometimes the abbreviated form "N. E. I." is used, and sometimes the English equivalent "Not found," but it is better to retain the technical phrase, and "not to be found," is a bad return (R. v. Kent (Sheriff), 1837, 2 Mee. & W. 316). The omission to capture the defendant, however, must not have been due to any fault of the sheriff; for if so, he will be liable to attachment (R. v. Kent (Sheriff), supra; Saxton

v. West, 1794, 2 Anst. 479); but if the person to be arrested has not been seen in the county, that fact will excuse the sheriff's delay in making the return (Saxton v. West, supra). If, on the other hand, the person to be arrested was visible in the jurisdiction, a return of non est inventus would be improper, and render the sheriff liable (North v. Miles, 1808, 1 Camp. 389; Beckford v. Montague, 1796, 2 Esp. 476). Upon a return of non est inventus, the person prosecuting the judgment or order becomes entitled, at his option, to a commission of sequestration or to an order for the serjeant-at-arms (see Order of 7th January 1870, rr. 6, 7, 8, in L. R. 5 Ch. 25; cp. R. S. C., Order 44, r. 1; 2 Seton, 1572, No. 1); or if the writ issued from the Crown side of the King's Bench Division, he may have one or more writs issued tested on the return day of the previous writ (Crown Office Rules, 1906, r. 241).

Non-existing Person.-See BILLS OF EXCHANGE, Vol. II.

p. 203.

Nonfeasance.-See NEGLIGENCE; NEGLIGENT DRIVING.

Non-intervention.-See INTERVENTION.

Non-intromittant Clause.-A clause in the charter of a borough by which it is exempted from the jurisdiction of the county justices (see 3 Steph. Com., 37; R. v. Sainsbury, 1791, 4 T. R. 51; 2 R. R. 433).

Non-joinder.-See JOINDER OF CAUSES OF ACTION; PARTIES.

Non obstante.-In olden times the papacy was accustomed de plenitudine potestatis to issue bulls "non obstante (notwithstanding) any law to the contrary," and in imitation of this practice the Sovereigns of England began about the middle of the thirteenth century to claim a like favour with respect to secular documents. Henry II. was perhaps the first who did so, asserting as part of the royal prerogative the right to dispense with or suspend the laws of the realm in particular instances. Soon what was called the non obstante clause became common in statutes and letters patent, importing a licence from the Crown to do something which, apart from such licence, would have been contrary to law. Thus in 1391 the 15 Rich. II. authorised the King's exercise of this right with respect to the Statute of Provisors until the next Parliament, but so that the said statute be not repealed; and in 1413, when assent was given to the 1 Hen. v., the King reserved the right to dispense with the statute when he pleased. Frequent occasion for exercising the right was also found in respect to the Statutes of Mortmain, the royal licences enabling corporations to hold lands without the penalty of forfeiture; and in Henry VII.'s reign the judges decided that notwithstanding the statutes prohibiting grants of the office of sheriff for more than one year, the King might make a grant for life with a non obstante. Lord Coke justified the exercise of this prerogative upon the ground that it was beyond Parliament to take away the Sovereign's right to the service of his subjects (Calvin's Case, 1609, 7 Co. 14; 77 E. R. 393). At the same time, even in those days the right was frequently contested. Thus in 1444 it was expressly enacted in the 23 Hen. VI. c. 8, that the King should not dispense with it; and in Henry VII.'s reign it was decided

that the King could not dispense with penalties imposed for acts that were mala in se, that is, prohibited by the common law, though he might do so in the case of acts that were mala prohibita, that is, forbidden by statute. The Act of 1588 against simony (31 Eliz. c. 6) also is so strong as even to bind the Sovereign. The right seems, nevertheless, to have been repeatedly exercised during the sixteenth and seventeenth centuries, and, indeed, it was James II.'s determination to dispense with the disabilities imposed by the Test Act which led to the Revolution. It was finally and effectually demolished, however, by the Bill of Rights (1 Will. & Mary, sess. 2, c. 2) in 1688, that statute enacting that for the future no dispensation by non obstante of or to any Act of Parliament or any part thereof shall be allowed, but that the same shall be held void and of none effect except the Act itself permit such dispensation. So effectual was this provision that in 1696 the 7 & 8 Will. III. c. 37 (now repealed) enacted expressly that the Crown might at its own discretion grant licences to aliene or take in mortmain of whomsoever the tenements might be holden.

Non obstante veredicto.-See VERDICT.

Non omittas.-The full expression is non omittas propter libertatem, that is, do not omit on account of any liberty or franchise within your bailiwick. It is a clause usually inserted in all processes addressed to sheriffs, enabling them to enter and execute the Sovereign's writs within liberties not within their jurisdiction. For, strictly speaking, the sheriff can only execute writs in his own county; and if he executes them elsewhere, his proceedings are liable to be set aside (Hammond v. Taylor, 1820, 3 Barn. & Ald. 408; Devenege v. Dalby, 1780, 1 Doug. 383). So, without a non omittas clause in the writ, an arrest within a liberty or franchise is irregular (Adams v. Osbaldiston, 1832, 3 Barn. & Adol. 489), though not bad as an arrest, and will expose the sheriff to an action at the instance of the lord or bailiff of the liberty (per Parke, J., in Adams v. Osbaldiston, supra, at p. 492; Sparks v. Spink, 1817, 7 Taun. 311; Kirkpatrick v. Kelly, 1781, 3 Doug. 30). If, therefore, his writ do not contain the clause, the sheriff ought to direct his mandate either to the lord or to the bailiff of the liberty, by whom the writ will be executed and returned. Thus a sheriff's officer making an arrest within the liberty of the Rolls, under a writ not backed by the Master of the Rolls, was held liable to attachment (Ex parte Carpenter, 1759, Dick. 334). On the other hand, with the clause the liberty becomes pro hac vice parcel of the sheriff's bailiwick, and the sheriff can enter and execute the writ within the liberty. If, however, the party to be arrested is within a gaol for his own purposes, he may be arrested there under a writ not containing the clause (Loveitt v. Hill, 1836, 4 Dowl. P. C. 579); and arrests may similarly be effected within Crown buildings, if the authorities do not object (A.-G. v. Donaldson, 1842, 10 Mee. & W. 117; Bell v. Jacobs, 1828, 4 Bing. 523; Sparks v. Spink, supra; Winter v. Miles, 1809, 10 East, 578). It should be noted that the ordinary form of writ of attachment does not contain a non omittas clause. (See Crown Office Rules, 1906, App. No. 190; but cp. R. S. C., 1883, App. H, No. 12.)

Non pros.-These words constitute an abbreviation for non prosequitur, that is, he does not follow up or prosecute. Judgment non

pros was allowed to a defendant in an action at law when the plaintiff neglected to take any of the proper steps within the time prescribed by the practice of the Courts for the purpose. It differed in that respect from a nolle prosequi (q.v.), which was a kind of acknowledgment or undertaking to forbear going on with an action, the plaintiff being by a judgment non pros involuntarily put out of Court. A common exercise of the right was in the action of replevin, one condition of the bond signed in that action being to prosecute without delay. If, therefore, there was a want of due diligence on the part of the plaintiff in making his statement of complaint, and the defendant was unduly prejudiced in consequence, there was a breach of the condition in the bond sufficient to entitle the distrainor to sign judgment non pros (Gent v. Cutts, 1847, 11 Q. B. 288). So, where the replevisor had allowed two years to elapse without taking any steps, the bond was held forfeited, and the obligee was allowed to recover, even though he had not signed judgment non pros (Axford v. Perrett, 1828, 4 Bing. 586). If, however, the default was due to the sheriff, the plaintiff's want of diligence would have been excused (Harrison v. Wardle, 1833, 5 Barn. & Adol. 146).

Now the practice in the High Court is regulated by the R. S. C., Order 27, r. 1, of which allows a defendant, in case the plaintiff makes default in putting in a statement of claim, to apply to have the action dismissed with costs for want of prosecution (see Roberts v. Booth, [1893] 1 Ch. 52; Jones v. Macaulay, [1891] 1 Q. B. 221). Default in delivering a reply or subsequent pleading, on the other hand, merely closes the pleadings, in which case, if the plaintiff does not give notice of trial, the defendant can either do so or move to dismiss the action (see Order 36, r. 12; Ambroise v. Evelyn, 1879, 11 Ch. D. 759). The steps to dismiss would be taken in the King's Bench Division by summons before a Master, and in the Chancery Division, either by summons in chambers or by motion in Court (see Evelyn v. Evelyn, 1879, 13 Ch. D. 138). Even at that stage, however, the plaintiff may undertake to go on (Thomas v. Palin, 1882, 21 Ch. D. 360). For the form of order to dismiss, see Order 27, r. 1, and Seton, p. 118. See further ANNUAL PRACTICE.

In the County Courts, if a plaintiff wishes to discontinue his action, he ought to give notice in writing both to the registrar and to all the other parties to the action; in which case, on receipt of the notice, the latter may apply ex parte for an order for costs against the plaintiff (see County Court Rules, 1903, Order 9, r. 1). Otherwise, on the nonappearance of the plaintiff, the action will be struck out under sec. 88 of the County Courts Act, 1888, 51 & 52 Vict. c. 43.

Non residentia pro clerico regis.-The general canon law forbids a clergyman to hold secular offices and employment, on the ground that it would be base and sordid for such to seek temporal gain (Otho. Athon., p. 91). The Sovereign, however, has always been accorded the privilege of employing either clergy or laity in any post of civil government, and, as a matter of fact, many clergymen have been chancellors, treasurers, and even justices of the King's Bench. Accordingly, in former times this writ was allowed to be issued to the bishop or ordinary, charging him not to molest a clergyman, employed in the royal service, on the score of non-residence (Reg. Orig., 58). This privilege is said to have rendered the constitution of the canon law practically nugatory. See also NON SOLVENDO PECUNIAM AD QUAM CLERICUS, ETC.

Non-sane Memory.-See LUNACY.

Non solvendo pecuniam ad quam clericus mulctatur pro non residentia.-The canon law insisted upon a regular personal residence of ecclesiastical persons on their cures, and made the desertion by a clergyman of his benefice, without just and necessary cause, and without the consent of the diocesan, a cause of deprivation or of the infliction of penalties. In case the Sovereign, however, appointed a clergyman to some secular office or employmentas that of bailiff or beadle or the like, which necessitated non-residence -this writ was obtainable at the common law prohibiting the ordinary from exacting any pecuniary mulet or penalty imposed on a clergyman in the royal service for non-residence (Reg. Writ., 59). This was permitted even when the office was one which might have been executed by deputy, as, for example, that of expenditor to the Commissioners of Sewers (Case of the Vicar of Dartford, 1738, 2 Stra. 1107).

Non-residence of the parochial clergy is now dealt with under the Pluralities Act, 1837, 1 & 2 Vict. c. 106, s. 32 of which enacts that if a spiritual person is absent without proper licence for more than three months in one year, he shall forfeit a portion of the annual value of his benefice, the said portion being increased according to the length of absence. The bishop may, however, grant an exemption, as where the clergyman's house is unfit for residence, in which case sec. 12 of 48 & 49 Vict. (1884) c. 54, also applies. See PLURALITIES.

Nonsuit. Under the former practice, a nonsuit was in theory, at all events-the voluntary abandonment by a plaintiff of a suit. If a necessary piece of evidence was not forthcoming, or if the judge expressed a strong opinion adverse to him, or if for any other reason the plaintiff desired it, he could at any time before verdict withdraw his case from the jury, and so escape a judgment against him. No one could be nonsuited against his will. But if the plaintiff elected to be nonsuited, his counsel would so inform the judge, and the plaintiff's name was then called three times in open Court: "John Smith, come into Court or you will be nonsuited." If the plaintiff did not respond to this summons, he was nonsuited; the jury was discharged; the plaintiff had to pay the defendant's costs, but he was at liberty to bring another action subsequently for the same cause, if he thought fit.

The Judicature Act of 1873 and the Rules and Orders of 1875 did not at once abolish nonsuits; but they destroyed the only advantage which a plaintiff could derive from being nonsuited instead of having judgment recorded against him. The former Order 41, r. 6, of 1875 provided that a judgment of nonsuit should "have the same effect as a judgment on the merits for the defendant," i.e. no second action could be brought for the same cause of action. And now that rule is repealed, and the word "nonsuit" is nowhere to be found in the present Rules and Orders. The judge must at or after the trial direct judgment to be entered for one party or the other (Order 36, r. 39), and the matter being thus res judicata, cannot be reopened-at all events, without leave (Fox v. Star Newspaper Co., [1900] A. C. 19; and see ABANDONMENT OF ACTION, Vol. I. p. 17).

Hence now there is strictly no such thing as a nonsuit. But the word is still frequently used to describe the act of a judge when he withdraws the case from the jury and directs judgment to be entered for

VOL. X.

2