If, however, the testator refers expressly to the next of kin according to the statute, and does not state how they are to take, the beneficiaries take according to the proportions directed by the statute.1. The term "next of kin " has reference to the death of the ancestor, and those who are entitled to take under that term are to be ascertained at the death of the ancestor.2 NIGHT (See BURGLARY; PROCESS).-That space of time during which the sun is below the horizon of the earth, except that short space which precedes its rising and follows its setting, during which, by its light, the countenance of a man may be discerned. In most of the States, however, night is defined by statute.3 of distribution of intestate's effects, and intended a limitation in conformity with that law. To act upon such an hypothesis would be, in effect, to introduce into the settlement an implied reference to the law of distribution of personal estates in cases of intestacy, and it does not appear to me that this can safely be done. "Conceiving, therefore, that by the law of England, the father, the mother and child of any proposed person are equally near of kin to such person, I am of opinion that at the time of Mrs. Withy's death, her father, mother and child, being her next of kin, the limitation took effect in their favor; and I think that they took the property limited to them as joint tenants." See also Halton v. Foster, L. R., 3 Ch. 505. See Ennis v. Pentz, 3 Bradf. (N. Y.) 382. 1. Bullock v. Downes, 9 H. L. 1; Nichols v. Haviland, I K. & J. 504; Ash v. Ash, 33 Beav. 187; Ranking's Settlement Trusts, 6 Eq. 601; Martin v. Glover, 1 Coll. 270; Jenkins v. Gower, 2 Coll. 537; Horn v. Coleman, 1 Sm. & G. 169; Mattison v. Tanfield, 3 Beav. 131; Lewis v. Morris, 19 Beav. 34; Richardson v. Richardson, 14 Šim. 526; Phillips v. Garth, 3 Bro. C. C. 69; Holloway v. Radcliffe, 23 Beav. 163; Fielden v. Ashworth, 20 L. R., Eq. 410; Williams v. Ashton, 1 John. & H. 115; Lowndes v. Stone, 4 Ves. 649; Boys v. Bradley, 10 Ha. 389. 2. Spink v. Lewis, 3 Bro. C. C. 355; Doe v. Lawson, 3 East 278; Ware v. Rowland, 2 Ph. 635; Holloway v. Holloway, 5 Ves. 399; Barber's Will, 1 Sm. & G. 118; Gorbell v. Davison, 18 Beav. 556; Starr v. Newberry, 23 B. 436; Lang's Will, 9 W. R. 589; Murphy v. Donegan, 3 J. & Lat. 534; Baker v. Gibson, 12 B. 101; Harrison v. Harrison, 28 B. 21; Michell v. Bridges, 13 W. R. 200; Urquhart v. Urquhart, 13 Sim. 613; Minter v. Wraith, 13 Sim. 52; Seifferth v. Badham. 9 Beav. 372. The testator may, however, direct the class of next of kin to be ascertained at any time which he may choose. Pinder v. Pinder, 28 Beav. 44; White v. Springett, 4 'Ch. 300. If the gift is, after the decease of the tenant for life, to such persons as shall then be my next of kin, the word "then" must refer to the death of the tenant for life. Long v. Blackall, 3 Ves. 486; Wharton v. Barker, 4 K. & J. 483; If, however, the word then is used as the equivalent of thereupon, the rule does not apply. In Bullock v. Downes, 9 H. L. 1, the testator gave the residue of his estate to three persons, in trust, to pay the dividends to his son for life, and after the son's decease to pay to any widow of the son (who was not then married) an annuity of £600 for life, and the residue to his son's children, and, in case there should not be any child of the son "then to stand possessed of the same in trust for such persons or person of the blood of me, as would by virtue of the Statutes of Distribution of Intestates' Effects have become and been then entitled thereto, in case I had died intestate." At testator's death, he left the son and four daughters him surviving. The son married, enjoyed the dividend of the residue during life, and died without ever having had a child. court held that the word "then," even if treated as an adverb of time, referred only to the time when the persons entitled would come into possession of what had been bequeathed to them; and that the persons entitled were to be ascertained at the death of the testator 3. Bouv. L. Dict.; Robbins v. Smith, The NIGHT WALKER.-Night walkers are persons who make themselves a common nuisance by going about nights committing bawdry or other petty offences or annoyances.1 NIHIL EST (See also SCIRE FACIAS).—There is nothing.2 47 Conn. 182; Martin v. McCarty, 10 (Tex.) S. W. Rep. 221; Thomas v. State, 5 How. (Miss.) 31; State v. Bancroft, 10 N. H. 105; Lewis v. State, 16 Conn. 32; Cureton v. Queen, I B. & S. 218. The presence of sufficient daylight to discern a man's features has long been adopted as a criterion to determine whether or not the act was done in the night-time within the meaning of the law applicable to the crime of burglary. People v. Griffin, 19 Cal. 578. See also Trull v. Wilson, 9 Mass. 154. A complaint for an offence committed in the night-time of a particular day may be dated on the same day. Commonwealth v. Flynn, 3 Cush. (Mass.) 525. "At Night" in an Insurance Policy.— The policy stipulates that the assured. a country merchant, should keep a set of books, and that the books should be kept in a fireproof safe “at night," and at all times when the store was not actually open for business; the books to be produced in case of loss by fire, and, upon failure to produce them, the policy to be null and void. In a suit on the policy the evidence showed that it was customary for the merchants of the neighborhood to keep their stores open as late as nine or eleven o'clock at night, and that the loss occurred about nine o'clock when the store was open for business and the plaintiff posting his books, the most of the books being lost. Held, that "at night" in the sense of the policy did not mean from sunset to sunrise, but from the merchant's closing until his opening hour. Jones v. Southern Ins. Co., 38 Fed. Rep. 21. "Sabbath Night."-Where a statute made it an offence to keep open a tippling shop on the Sabbath day or night, it was held that a count of an indictment charging the offence to have been committed between midnight of Saturday and the morning of Sunday sufficiently charged its commission on Sabbath night to withstand a motion to quash. Kroer v. People, 78 Ill. 294. Since the passing of St. 1847, ch. 13; Gen. Stat. of Mass., ch. 172, § 13, for defining "the time of night-time in criminal prosecutions," it is sufficient to allege, generally, that an offence was committed in the night-time, without designating the particular hour of the night; and by such allegation is to be understood the period of night-time as defined in that statute. Commonwealth v. Williams, 2 Cush. (Mass.) 582. An indictment on Rev. Stat. of Mass., ch. 126, § 5, which imposes a punishment on "every person who shall wilfully and maliciously burn either in the night-time or in the daytime," any building therein described, is not fatally defective by reason of its describing an offence as having been committed in the night-time, between the hour of sunsetting on one day and the hour of sunris ing on the next day, notwithstanding St. 1847, ch. 13; Gen. Stat., ch. 172, § 13, defining the time of night-time in criminal prosecutions to be "the time between one hour after the sunsetting on one day and one hour before sunrising on the next day." Commonwealth v. Lamb, 1 Gray (Mass.) 493. 1. 1 Bishop on Crim. Law 501. "Those who eave-drop men's houses, cast men's gates, carts and the like into ponds, or commit other outrages or misdemeanors in the night, or shall be sus. pected to be pilfering or otherwise like to disturb the peace, or that be persons of evil fame or report generally, or that shall keep company with any such, or with other suspicious persons in the night." I Burn's Justice 765; State v. Dowers, 45 N. H. 543. See also State v. Russell, 14 R. Ï. 506; Lawrence v. Hedges. 3 Taunt. 15; Watson v. Con, I Lewin 6. In the absence of a motion for a bill of particulars, a charge that defendant is "a common night walker" is a sufficient description of the offence. State v. Russell, 14 R. I. 506. 2. A return of a sheriff appropriate to a writ of scire facias. It is a fuller return than that of non est inventus, and it means "that the defendant has nothing in the bailiwick, no dwellinghouse, no family, no residence and no personal presence to enable the officer to make the service required by the act of assembly." "Nihil" is a good return to a writ of summons. Sherer v. Easton Bank, 33 Pa. St. 139. I. IN GENERAL-1. Definition and Use.-Nolle prosequi, usually abbreviated into nol. pros., is a technical term of English law, used both in criminal and civil cases. 1. Anderson's Law Dict. "A continuance is an adjournment to a time certain; a continuance nisi is to a time certain unless something shall occur to cause action upon the case before that time." Commonwealth v. Maloney, 145 Mass. 208. Judgment Nisi.-What is called a judgment nisi is nothing more than a rule to show cause why judgment should not be rendered. Young v. M'Pherson, 3 N. J. L. 455. As to decree nisi in divorce suits, see DIVORCE, 5 Am. & Eng. Encyc. of Law 745. 2. The abbreviation "No." signifies the word number and nothing else. Burr v. Broadway Ins. Co., 16 N. Y. 271. - No More. Where a testator gave legacies to each of his children and heirs at law, except one, and ended each bequest with the words, "and no more," and finally gave all of his realty to this son, without words of limitation, and without repeating the phrase “and no more," it was held that the son took an estate in fee. Hitch v. Patten (Del.), 16 Atl. Rep. 558. No Costs. An agreement of tenants to an action of dower to "submit to judgment for plaintiff for dower, no costs," construed under the circumstances, to refer only to costs up to the time of judgment for dower, and not to costs of the subsequent proceedings for the admeasurement of dower. Smith v. Smith, 4 R. I. 370. "No Man's Land."-The court of the Eastern District of Texas has jurisdic It may be defined as a for tion of "No Man's Land." In re Jackson, 40 Fed. Rep. 372. "No Order."-Plaintiff took out a summons before a judge at chambers for costs, under 13 & 14 Vict., ch. 61, § 13. The judge endorsed the summons with the words, "No order;" "that is, as I understand it, equivalent to a dismissal of the summons." CAMPBELL, C. J., in Merredith . Gittings, 18 Q. B. 257; s. c., 83 E. C. L. 258. No Particular Provocation Appearing. -The words, “no particular provocation appearing," are proper in an indictment for aggravated assault, under 1293 Gantt's Ark. Dig., but are surplusage in an indictment for an assault with intent to commit murder. Butler v. State, 34 Ark. 480. "No Question as to the Validity."The endorsement on a policy that there would be "no question as to the validity" of the same, unless raised in a certain way, held to preclude the insurance company from interposing the defence of fraudulent representations in an action on the policy, and not to be against public policy. Wright v. Mutual Ben. L. Assoc., 26 N. Y. Wk. Dig. 18. "No Tenant."--The owner of a house is not liable, under a Boston ordinance that provides that snow shall be removed from the sidewalk by the "tenant, occupant, and, in case there shall be no tenant, by the owner," where there are two tenants of the house, but no sole tenant on whom to fix the liability. Commonwealth v. Watson, 97 Mass. 562. mal undertaking or agreement, entered on the record by the plaintiff or prosecutor, that he will, either wholly or partially, forbear to proceed further with the action or bill (se ulterius nolle prosequi), or that he will proceed no further against certain of the defendants. The principal use of a nolle prosequi in civil cases was to clear the record of improper parties or objectionable counts, or parts of counts. It is now almost entirely superseded by the modern practice of discontinuance or amendment, but may be still found useful in some instances. In criminal cases its object is much the same, and it is usual to enter it during the trial or after conviction, so as to confine the verdict to those counts and parties which are good. Another object for which it is often used in criminal trials is to stay proceedings against an accomplice in order to secure his evidence. This latter is, however, now usually effected by the prosecution offering no evidence and the judge directing an acquittal. 2. Nature and Effect. The effect of a nolle prosequi, in both civil and criminal cases, is simply that of an agreement to proceed no further in that particular suit or part of the suit, or prosecution; or as to some of the defendants. It is not in the nature of a retraxit or a release in civil cases, or of an acquittal 2 in criminal prosecutions, and is not a bar to a future action for the same cause, or to another indictment for the same crime.4 (a) In Civil Cases.-Formerly a nolle prosequi was thought to be a bar to a second civil action for the same cause, but it is not so now, except in those cases where, from the nature of the action-as for technical reasons in the case of joint contractors under the old common-law rules-judgment and execution against one is a satisfaction for all the damages sustained by the plaintiff.5 1. See 1 Wms. Saund. 207, note 2; Delroach v. Dixon, 1 Hempst. (U. S.) 264; Minor v. Mechanics' Bank, 1 Pet. (U. S.) 74; Quigley v. Merritt, 4 Iowa 475; Tuel v. Amick, 6 Blackf.' (Ind.) 249; Keeler v. Bartine, 12 Wend. (N. Y.) 110. 2. See Com. Dig., Indictment (K.); 3 Cox C. C. 93; 1 Mod. 261; 1 Salk. 59; United States v. Stowell, 2 Curt. (U. S.) 170; United States v. Shoemaker, 2 McLean (U. S.) 114; Ex parte Wenston, 52 Ala. 419; State v. Garvey, 42 Conn. 232; Cominonwealth v. Tuck, 20 Pick. (Mass.) 365; Bacon v. Towne, 4 Cush. (Mass.) 217, at page 235; Wortham v. Commonwealth, 5 Rand. (Va.) 669. 3. Hatcher v. Fowler, 1 Bibb (Ky.) 337; Brown v. Pearson, 8 Mo. 159; Beard v. Van Wickle, 3 Cow. (N. Y.) 335; Keeler v. Bartine, 12 Wend. (N. Y.) 110. 4. Aaron v. State, 39 Ala. 75; State v. Main, 31 Conn. 572; Williams v. State, 57 Ga. 478; Commonwealth v. Wheeler, 2 Mass. 172; State v. Thompson, 3 Hawks (N. Car.) 613; State v. Haskett, 3 Hill (S. Car.) 95; Commonwealth v. Lindsey, 2 Va. Cas. 345. 5. 3 Term. 511; 1 Wils. 98; United States v. Linn, 1 How. (Ú. S.) 104; Quigley v. Merritt, 4 Iowa 475; Brown v. Pearson, 8 Mo. 159; Woodward v. Newhall, Pick. (Mass.) 500; Judson v. Gibbons, 5 Wend. (N. Y.) 224; Breidenthal v. McKenna, 14 Pa. St. 160; Pell v. Pell, 20 Johns. (N. Y.) 126. "It has long been settled that a nolle prosequi does not amount to a retraxit, and that it may be entered as to a part of the suit, or as to one of the defendants, where the action is in its nature joint and several, or where the defendants sever in their pleas. Thus, in trespass, or other action founded upon tort, Nolle Prosequi NOLLE PROSEQUI. How (b) In Criminal Cases.-In criminal cases a nolle prosequi is not, as such, a bar to a fresh indictment for the same offence.1 ever, if, at the time the proceedings are stayed by a nolle prosequi, the defendant has been put in jeopardy, that fact will, of course, release him from the second indictment, upon his pleading, second jeopardy, or autrefois acquit, as the case may be. II. NOLLE PROSEQUI IN CIVIL ACTIONS.-To narrow slightly the definition before given: nolle prosequi, in civil practice, is an agreement or acknowledgment entered of record by the plaintiff in an action that he will forbear, either wholly or partially, to proceed in the particular action; or that he will proceed no further against one or more of the defendants. From the definition it appears that there are two distinct classes of cases in which a nolle prosequi may be used in civil practice; first, where it is entered as to some of the counts of the declaration; and, second, where it is entered as to some of the parties to the action. 1. Nolle Prosequi as to Part of the Declaration.-A nolle prosequi may be entered as to any of several counts in a declaration, or to any part of the action, without turning the plaintiff out of court as to the other counts, or the remaining part of the suit. After a count is nol. pros'd, it is considered as stricken out of the declaration, except so far as it is referred to by the other counts, and the only effect of the nolle prosequi is to strike from the record that count and all the issues joined upon it. The residue of the issues remain to be tried the same as if no other had been formed.3 the plaintiff may enter it at any time 1. United States v. Farring, 4 Cranch 2. McLean v. Rutherford, 1 Hempst. It is not erroneous to enter a nolle prosequi as to one count of a declaration, even after the jury is sworn, and proceed to trial on the other counts. Breckenridge v. Lee, 3 A. K. Marsh, (Ky.) 446. Or when a count is adjudged bad on demurrer. Brown v. Feeter, 7 Wend. (N. Y.) 301. A nolle prosequi as to one count of a declaration on a promissory note and money of the statute of limitations. Keeler v. paid does not admit the truth of a plea Bartine, 12 Wend. (N. Y.) 110. Where note and the money counts, he can the plaintiff declares on a promissory and have his damages assessed by the enter a nolle prosequi upon the latter quiry, but the defendant cannot comclerk, or he may proceed by writ of env. Van Wickle, 3 Cow. (N. Y.) 335. pel him to enter a nolle prosequi. Beard 3. Brown v. Feeter, 7 Wend. (N. Y.) 301. "There is an expression by CHIEF JUSTICE MARSHALL, in Hughes 7. Moore, 7 Cranch 176, which is, when particularly examined, not in contrafirmation of it. As a general proposidiction to this doctrine, but in contion his statement cannot be supported, but is correct, taken in connection with a nolle should be so regarded-i. e., 'After this other parts of the same opinion, and discontinuance-which in precisely the same position as if all prosequi to one count-the parties are 711 was |