Nisi Prius “Legally” Defined

The following definitions for “nisi prius” are taken from Ballantine’s Law Dictionary (3rd edition), Bouvier’s Law Dictionary (6th edition), and Black’s Law Dictionary (2nd edition):

 

 

(Ballantine’s)

Unless before. A trial before a single judge. An English court presided over by commissioners detailed on circuit from London to hold jury trials. In modern terminology, the trial, as distinguished from the appellate court, where both have exercised jurisdiction in a cause.

 

(Bouvier’s)

  1. These words, which signify “unless before,” are the name of a court. The originated as follows: Formerly, an action was triable only in the court where it was brought. But, it was provided by Magna Carta, in ease of the subject, that assises of novel disseisin and mort d’ancestor (then the most usual remedies,) should thenceforward instead of being tried at Westminster, in the superior court, be taken in their proper counties; and for this purpose justices were to be sent into every county once a year, to take these assises there [1 Reeves, 246; 2 Inst. 422, 3, 4]. These local trials being found convenient, were applied not only to assises, but to other actions; for, by the statute of 13 Edw. I. c. 30, it is provided as the general course of proceeding, that writs of venire for summoning juries in the superior courts, shall be in the following form. Praecipimus tibi quod veneri facias coram justiciariss nostris apud Westmm. In Octabis Seti Miachaelis, nisi talis et talis tali, die et loco ad partes illas venerint, duodecim, &c. Thus the trial was to be had at Westminster, only in the even of its not previously taking place in the county, before the justices appointed to take tlie assises. It is this provision of the statute of Nisi Prius, enforced by the subsequent statute of 14 Ed. III. c. 16, which authorizes, in England, a trial before the justices of assises, in lieu of the superior court, and gives it the name of a trial by nisi prius [Steph. Pl. App. Xxxiv; 3 Bl. Com. 58; 1 Reeves, 245, 382; 2 Reeves, 170; 2 Com. Dig. Courts, D b, page 316].
  2. Where courts bearing this name exist in the United States, they are instituted by statutory provision [4 W. & S. 404].

 

(Black’s)

NISI, Lat = Unless

The word is often affixed, as a kind of elliptical expression, to the words “rule,” “order,” “decree,” “judgement,” or “confirmation,” to indicate that the adjudication spoken of it one which is to stand as valid and operative unless the party affected by it shall appear and show cause against it, or take some other appropriate step to avoid it or procure its revocation. Thus a “decree nisi” is one which will definitely conclude the defendant’s rights unless, within the prescribed time, he shows cause to set it aside or successfully appeals. The word, in this sense, is opposed to “absolute.” And when a rule nisi is finally confirmed, for the defendant’s failure to show cause against it, it is said to be “made absolute.”

  • Nisi feceris: the name of a clause commonly occurring in the old manorial writs, commanding that, if the lords failed to do justice, the king’s court or officer should do it. By virtue of this clause, the king’s court usurped the jurisdiction of the private, manorial, or local courts [Stim. Law Gloss].
  • Nisi prius: the nisi prius courts are such as are held for the trial of issues of fact before a jury and one presiding judge. In America, the phrase is familiarly used to denote the forum (whatever may be its statutory name) in which the cause was tried to a jury, as distinguished from the appellate court [see 3 Bl. Comm. 58].
  • Nisi prius clause: in practice, a clause entered on the record in an action at law, authorizing the trial of the cause at nisi prius in the particular county designated. It was first used by way of continuance.
  • Nisi prius roll: in practice, the roll or record containing the pleadings, issue, and jury process of an action, made up for use in the nisi prius court.
  • Nisi prius writ: the old name of the writ of venire, which originally, in pursance of the statute of Westminster 2, contained the nisi prius clause [Reg. Jud. 28, 75; Cowell].

 

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