NON EST INVENTUS-(See also PROCESS).-Is not found. 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. The English form "not found" is also commonly used.1 NON PROSEQUITUR--(See also NONSUIT; RETRAXIT; JUDGMENT, 12 Am. & Eng. Encyc. of Law 61).-Non prosequitur, generally abbreviated into non pros., is a species of judgment against a plaintiff who fails to take in due time, at any stage of the proceedings in an action at law, the steps which he ought to take in accordance with the rules of practice prescribed by the court. Such a judgment is taken when the plaintiff neglects to file a declaration, replication, etc., at the required time. The judgment taken is called judgment of non prosequitur (not followed up), and the plaintiff is said to be non pros'd. Judgments of like nature against a defendant are spoken of as judgments of the nature of non pros. Non prosequitur is technically a final judgment, and will be opened only upon cause shown to the court. Not being upon the merits of the case, it is, however, generally subject to be opened upon due explanation of the failure to take the proper steps within the prescribed time.2 NON-RESIDENT-See also DOMICILE; RESIDENTS. I. Definition, 718. II. When Non-residency Commences, 718. 1. Bouv. L. Dict. "The sheriff's return of 'non est,' although very brief, and also bad grammar when there are two defendants, is in the usual form, and the objection to it was properly overruled." Patterson v. Parker, 2 Hill (N. Y.) 598. "To be Returned Non Est Inventus."When a ca. sa. is delivered to the sheriff with an endorsement directing it to be returned non est inventus, the meaning is merely that the sheriff need not look for the defendant; it must be understood with this qualification that, if the defendant surrenders himself, the sheriff must take him. Mangay v. Monger, 4 Q. B. 818; s. c., 45 E. C. L. 820. 2. Judgment by non prosequitur against the plaintiff takes place where the plaintiff, at any stage of the action after appearance, and before judgment, abandons and fails to prosecute his action, as by not filing his pleadings in due succession, etc. In such case the entry is that, having been ruled to file his declaration (or other pleading), and failing so to do, it is ordered that he be III. How Proven, 719. IV. In Attachment Cases, 720. [720.] nonsuited, and pay, etc. 4 Minor's Non Prosequitur.-He does not prose- The difference between nonsuit and non pros. is that in the former the plaintiff, being called upon in court to proceed, advisedly abandons the suit, because he sees it is likely to go against him; in the latter, he simply neglects to take the proper steps. Mozley & W. The word nonsuit is sometimes employed to express any failure on the part of the plaintiff to prosecute his suit, whether upon being called at the trial or at any other time; so that it includes not only the idea of a nonsuit proper, but also of a non prosequitur, and of a nolle prosequi (non pros. and P I. DEFINITION.—A non-resident is one who resides out of the jurisdiction in question. In the general acceptation of the term it means one who resides out of the State. The mere being out of a State, or not domiciled there, does not constitute one a nonresident; a person may be domiciled in a State and yet be a nonresident. The term is not merely the negative of resident; one who is not a resident is by no means necessarily a non-resident. Thus, one may be unable to vote because he is not a resident within the meaning of the election laws, yet he may at the same time be not a non-resident as regards service of process.3 II. WHEN NON-RESIDENCY COMMENCES.-The non-residence of a party begins as soon as he leaves the State with no present intention of returning; indeed, it has been often considered that one's non-residence was to be reckoned as from the time of his departure from his present place of abode with the intention of becoming a non-resident, so that he may become a non-resident before he has gone beyond the limits of the State. But this rule is not uni nol. pros., as they are respectively called). 4 Minor's Inst. 782. 1. Abbott's Law Dict., art. Nonresident; Frost v. Brisbin, 19 Wend. (N. Y.) 11; s. c., 32 Am. Dec. 423. Non-residence is thus defined: "An actual cessation to dwell within a State for an uncertain period without definite intention as to a time for returning, although a general intention to return. may exist." Anderson's Law Dict., art. Reside; Weitkamp v. Loeler, 53 N. Y. Super. Ct. 83. Thus where a mother left the State of Mississippi for that of Alabama in order that she might better attend to the education of her children, although she intended to return to Mississippi after her object had been accomplished, she was considered a non-resident of Mississippi, and therefore subject to the process of foreign attachment provided for such cases. Alston v. Newcomer, 42 Miss. 186; Morgan v. Nunes, 54 Miss. 311; Wheeler v. Cobb, 75 N. Car. 21; Frost v. Brisbin, 19 Wend. (N. Y.) 11; s. c., 32 Am. Dec. 423; Long v. Ryan, 30 Gratt. (Va.) 718; Brown v. Ashbough, 40 How. Pr. (N. Y.) 260. But a mere temporary absence of a few weeks will not constitute the party a non-resident if at the time of departure from the State there was an intention of returning to it at the expiration of that period. Reed's Appeal, 71 Pa. St. 382; Pfoutz v. Comford, 36 Pa. St. 420. One's dwelling house determines his place of residence in some cases. Thus on a motion against a plaintiff in equity for security for costs, on the ground that he was a resident of a neighboring State, he proved that he was a man of family with which, so far as known, he lived, and that his dwelling house was fifteen feet within the State line on the Virginia side, it was held that prima facie he was a citizen of Virginia, and therefore not compellable to furnish security for costs. Evans v. Bradshaw, 10 Gratt. (Va.) 207. 2. Frost v. Brisbin, 19 Wend. (N.Y.) 11; s. c., 32 Am. Dec. 423: Pooler v. Maples, 1 Wend. (N. Y.) 65; Bartlett v. New York, 5 Sandf. (N. Y.) 44. 3. See RESIDENT-RESIDENCE. The word resident is used in many different senses, and one may be a resident as regards some purposes, while he is not as regards others. It has a different meaning in almost every statute in which it is used, while the technical "non-resident" always imports one idea only-that of a party who is incapable of being served with process. See PROCESS. 4. Clark v. Ward, 12 Gratt. (Va.) 448; Moore v. Holt, 10 Gratt. (Va.) 284. In the case of Spalding v. Simms, 4 Metc. (Ky.) 285, this state of facts ap peared, viz: Simms left his home at in Kentucky and went to Louisville, intending to leave there on the steamer for a distant State, where he would reside in future. He intended to leave on the twentieth of December, but was unavoidably detained until the versally accepted.1 III. HOW PROVEN.-Evidence to prove the intent of a party when leaving a State is always admissible, to determine whether or not he has become a non-resident by so leaving;2 and the declarations made by him at the time of removal are admissible as such evidence. The non-residency of a party defendant is usually proven in cases where application is made for a foreign attachment, as well as where an order of publication is applied for by the plaintiff's affidavit. This is sufficient to give the court jurisdiction of the question,+ twenty-fourth of the month. On the twenty-first of the following April attachments provided for such cases were levied. The statute allowed such attachments to be sued out and levied upon the property of one who has been absent from the State for four months. The court held the attachments valid, saying that the absence from the State was to be considered as dating from the time the party left his home with the intention of leaving the State. See also as sustaining the same views, Speed & Beattie v. Gray & Co. (decided 1862); Sloan v. Bangs, 10 Rich. L. (S Car.) 15. 1. Ballinger v. Lautier, 15 Kan. 608, where it is held that to constitute one a nonresident until he leaves the State with the intention of becoming so. And in Adams v. Evans, 19 Kan. 174, it is stated that in order to become a non-resident there must exist both the intention to remove and the fact of actual removal. See also Amsbaugh v. Exchange Bank, 33 Kan. 100. Consult also in this connection (but not as sustaining entirely the above case) Bonnel v. Dunn, 28 N. J. L, 153, Chaine v. Wilson, 8 Abb. Pr. (N. Y.) 78. In the case of Kugler . Schreve, 28 N. J. L. 129, the defendant had left the place of his tenancy and placed his goods and chattels in a canal boat lying, in the basin at Trenton with the intention of taking them and his family to Pennsylvania. While the goods were yet on the boat an attachment was is sued against them as being the goods of a non-resident. The court held, however, that such party did not lose his residence in New Jersey until he had actually left the State with intention of remaining therefrom. See also City Bank v. Merrit, 13 N. J. L. 131; Clark v. Likens, 26 N. J. L. 207. 2. Reeder v. Holcomb, 105 Mass. 93; Fisk v. Chester, 8 Gray (Mass.) 506; Thorndike v. Boston, 1 Metc. (Mass.) 242; Kilburn v. Bennett, 3 Metc. (Mass.) 199. 3. Burnham v. Rangeley, 1 Woodb. & M. (U. S.) 7; Butler v. Farnsworth, 4 Wash. (U. S.) 101; Lee v. Simonds, 1 Oreg. 158. They are part of the res gesta. Stansbury v. Arkwright, 24 Eng. C. L. 462; s. c., 5 Carr. & P. 575; Kilburn v. Bennett. 3 Metc. (Mass.) 199; 1 Greenleaf's Ev.. § 108. Compare Howard College v. Gore, 5 Pick. (Mass.) 370. Such declaration must, however, have been made ante litem motam. Doyle v. Clark, Flip. (U. S.) 536. But in a case where the debtor has been absent from the State four or five years working as a contractor in the construction of railroads in the adjoining State, it not appearing that he might be absent as many years longer, the declarations of the debtor offered to show that he had not abandoned his home or domicil in the State, are not admissible. Risewick v. Davis, 19 Md. 82. 4. See ATTACHMENT, I Am. & Eng. Encyc. of Law 901, 902, 903. See also NOTICE BY PUBLICATION; PROCESS; N. Y. Code Civ. Proc., §§ 435-438. Thus it is said in Weber v. Weitling that the proceedings by foreign attachment are not void merely because the defendant was a resident of the State at the time of the issuing of the attachment. By the act the foundation of the proceedings and of the jurisdiction of the court is not the non-residence of the defendant, but the filing of an affidavit by the plaintiff that he believes him to be a non-resident. If such affidavit is made in good faith, the proceedings are not void. The court pending the proceedings will enquire into the truth of the affidavit, and if it appears that the affidavit is not true will arrest the proceedings and quash the attachment; but if the affidavit is regular and made although it is by no means conclusive, but may be rebutted by proper evidence. 1 IV. IN ATTACHMENT CASES.-The question of non-residency occurs most frequently in cases touching service of process and the validity of foreign attachments. It is provided by statute in most States, inasmuch as non-residents frequently cannot be reached with ordinary process in suits, that a proceeding against them may be commenced by an attachment of their property. An attachment is, therefore, often valid against a non-resident which would not be so as against a resident, and thus the important question of the non-residency of the party is involved.2 V. PROCESS AGAINST NON-RESIDENTS.-See SERVICE OF PROCESS. NONSUIT (See ACTIONS; DISCONTINUANCE; NOLLE PROSEQUI; PARTIES TO ACTIONS; RETRAXIT; TRIAL). in good faith, the court cannot collaterally enquire into the fact of non-residence and declare the proceedings void. Weber v. Weitling, 18 N. J. Eq. 441. 1. Brundred ads. Del. Hoyo, 20 N. J. L. 328, where it is held that in cases of foreign attachment the affidavit is not conclusive as to the residence of the defendant, but may be enquired into, and if the court is satisfied from the evidence that the defendant did not reside out of the State at the time the proceedings were instituted, they will be set aside, notwithstanding the plaintiff may have acted in good faith in making the affidavit. City Bank v. Merritt, 13 N. J. L. 131. See also FOREIGN ATTACHMENT, 8 Am. & Eng. Encyc. of Law 323. Are Granted and Where XII. At What Time Granted, 737- XV. Where the Law Is Against XVI. For Insufficiency of Plaintiff's XVII. Introduction of New Evidence 744- XIX. Miscellaneous Cases, 745. 2. See FOREIGN ATTACHMENT, 8 Am. & Eng. Encyc. of Law 320, 323; Anderson's Law Dict., art. Residence; Clark v. Likens, 26 N. J. L. 207; Chaine v. Wilson, 8 Abb. Pr. (N. Y.) 78; Ballinger v. Lantier, 15 Kan. 608; Matter of Thompson, 1 Wend. (N. Y.) 43; Clark v. Ward, 12 Gratt. (Va.) 448; Spalding v. Simms, 4 Metc. (Ky.) 285; Long v. Ryan, 30 Gratt. (Va.) 718; Brown v. Ashbough, 40 How. Pr. (N. Y.) 260; Hackettstown Bank v. Mitchell, 28 N. J. L. 516; City Bank v. Merritt, 13 N. J. L. 131; Brundred ads. Del. Hoyo, 20 N. J. L. 333. Residence, in attachment laws, implies an established abode fixed permanently for a time, for business or other purposes. One's citizenship of a State I. DEFINITION.-A nonsuit is the result of an abrupt termination of an action at law. It is the name of a judgment given against the plaintiff when he 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 Its origin can be easily traced to a very early period in the history of the common law.3 does not necessarily determine his residence. Absence of such a character, and so prolonged that the person cannot be reached by ordinary process, may amount to non-residence, though the party may have entertained and expressed an intent to return to the State of his former home at some remote and uncertain time. Morgan v. Nunes, 54 Miss. 308. In the case of Hackettstown Bank v. Mitchell (28 N. J. L. 516), this state of facts existed: A party, M, resided in the State of New York, and his wife, previous to her marriage, and at the time of it, was a resident of this State (i.e., New Jersey), and they were married here. After the marriage in 1859 they went to Europe, Mrs. M intending on their return to remain at her former residence in this State until the fall of 1860. While absent an attachment was issued against them both to recover a debt contracted by the wife before her marriage. On their return from Europe she came to her residence here, where her husband also spent a large part of his time, but retained his residence and attended to his business in New York. It was held that the residence of both was in the State of New York, and that since process by summons could not be served upon the husband, a foreign attachment provided for non-residents was a proper remedy. Story on Conflict of Laws, § 146; Greene v. Greene, 11 Pick. (Mass.) 415. 1. Washburn v. Allen, 77 Me. 344. 3. Nonsuits at Common Law and Under English Statutes.-Washburn v. Allen, 77 Me. 344. The English practice differs somewhat from that of our own courts. At common law, as early practiced in the English courts, upon every continuance or day given over before judgment, the plaintiff was demandable, and upon his nonappearance might have been nonsuit. Bacon's Abr. Nonsuit, D.; Co. Litt. 139 b. And no verdict could be returned and given unless in his presence or that of his counsel, but the plaintiff was said to be 16 C. of L.-46 721 nonsuit. Therefore, it was usual for a plaintiff, when he or his counsel perceived that he had not given evidence sufficient to maintain his issue, to withdraw himself and be voluntarily nonsuited. 3 Black. Com. 376; Murphey v. Donlan, 5 B. & C. 178 (11 Eng. Com. Law 195); and whenever the plaintiff ought to appear in court he was at liberty to withdraw. Co. Litt. 138 b, 139 a; Robinson v. Lawrence, 7 Exch. 123. The plaintiff had a right to be nonsuited at any step of the proceedings he might prefer, and thereby reserve to himself the power of bringing a fresh action for the same subjectmatter; and this right continued to the last moment of the trial, even till after verdict rendered; or, where the case was tried by the court without the intervention of a jury, until the judge had pronounced his judgment. Outhwaite v. Hudson, 7 Exch. 380. Consequently, if he was not satisfied with the damages given by the jury, he might become nonsuit. Bacon's Abr. Nonsuit, D.; Keat v. Barker, 5 Modern 208. But by statute, 2 Henry IV, ch. 7 (A. D. 1400), it was ordained and established that if the verdict passed against the plaintiff, he should not be nonsuited, which before that time was otherwise at common law. Notwithstanding this statute, which was an amendment of the common law, it was held that the plaintiff might be nonsuited after the finding of a special verdict, and the reason of this would seem to be that a special verdict is in the nature of a statement of facts; and also after a demurrer and argument thereon, and a rule for judgment for defendant, though it could not be done at the same term. Bacon's Abr. Nonsuit, D.; Alderly v. Alderly, Cro. Jac. 35. And this statute was afterwards construed as applying only to cases where the jury had passed upon the whole matter. Earl of Oxford v. Waterhouse, Cro. Jac. 575; Com. Dig. Pleader W. 5. Except in the cases above stated, the plaintiff could always become nonsuit upon any continuance. |