incapable of direct proof, and partly because every contract is made by acts performed. Proof of the necessary acts carries with it presumptive proof of mutual consent. Thus, if two separate agreements be drawn up, signed and sealed, each of them purporting to be a contract between A and B, and the parties, intending to deliver one of the instruments, deliver the other by mistake, there is no contract made; Langd. Contr. 193. MUTUAL PROMISES. Promises simultaneously made by two parties to each other, each promise being the consideration of the other. Hob. 88; 14 M. & W. 855; Ada. Contr. 22. If one of the promises be voidable, it will yet be good consideration, but not if void; Story, Contr. § 81; 2 Steph. Com. 114. MUTUALITY. Reciprocity; an acting Where in return. MUTUARY. A person who borrows per the plaintiff's acceptance of the defendant's 622; 26 Md. 37. offer inadvertently made a slight change in a date, there was held to be no contract, be-sonal chattels to be consumed by him and recause there had not been mutual consent; Bing. 653. Mutual consent must extend to the consideration as well as to the promise; Langd. Contr. 82. MUTUAL CREDITS. Credits given by two persons mutually, i. e. each giving credit to the other. It is a more extensive phrase than mutual debts. Thus, the sum credited by one may be due at once, that by the other payable in futuro: yet the credits are mutual, though the transaction would not come within the meaning of mutual debts; 1 Atk. 230; 7 Term, 378. And it is not necessary that there should be intent to trust each other: thus, where an acceptance of A came into the hands of B, who bought goods of A, not knowing the acceptance to be in B's hands, it was held a mutual credit; 3 Term, 507, n.; 4 id. 211; 3 Ves. 65; 8 Taunt. 156, 499; 1 Holt, 408; 2 Sm. Lead. Cas. 179; 26 Barb. 310; Gray, 284; 9 N. J. Eq. 44; 5 Robt. (N. Y.) 348; 7 D. & E. 378. receives the benefit arising from the contract turned to the lender in kind; the person who of mutuum. Story, Bailm. § 47. MUTUUM. A loan of personal chattels to be consumed by the borrower and to be returned to the lender in kind and quantity; as, a loan of corn, wine, or money which are to be used or consumed, and are to be replaced by other corn, wine, or money. Story, Bailm. § 228. See LOAN FOR USE. MYSTERY (said to be derived from the French mestier, now written métier, a trade). A trade, art, or occupation. Co. 2d Inst. 668. Masters frequently bind themselves in the indentures with their apprentices to teach them their art, trade, and mystery. Hawk. Pl. Cr. c. 23, s. 11. See MYSTIC TESTAMENT. A will under seal. La. Civ. Code, art. 1567; 5 Mart. La. 182; 5 La. 396; 10 id. 328; 15 id. 88. NAAM. See NAMIUM. N. limited only is recognized in law; 1 Ld. Raym. 562; NAIL. A measure of length, equal to Bacon, Abr. Misnomer (A); 7 Cold. 69; 5 two inches and a quarter. See MEASURE. Johns. 84; though two or more names usually NAKED. This word is used in a meta-kept separate, as John and Peter, may unphorical sense to denote that a thing is not doubtedly be compounded, so as to form in complete, and for want of some quality it is contemplation of law but one; 5 Term, 195. either without power or it possesses a A letter put between the Christian and surpower. A naked contract is one made with-ame as an abbreviation of a part of the Christian name, as John B. Peterson, is no out consideration, and for that reason it is void; a naked authority is one given without part of either; 4 Watts, 329; 5 Johns. 84; any right in the agent, and wholly for the 14 Pet. 322; 3 id. 7; 2 Cow. 463; 17 Ala. benefit of the principal. 2 Bouvier, Inst. n. Ld. Raym. 562; Viner, Abr. Misnomer (C 6, pl. 5, 6); Comyns, Dig. Indictment (G`1, note u); Willes, 654; Bacon, Abr. Misnomer and Addition; 3 Chitty, Pr. 164, 173; 52 Ind. 347 ; s. c. 21 Am. Rep. 179 n. But see 7 W. & S. 406; 19 Ohio, 423; 1 Swan, 162; 20 Iowa, 98; 28 Tex. 772; 39 Ill. 1302. See NUDUM PACTUM. NAME. One or more words used to distinguish a particular individual: as, Socrates, Benjamin Franklin. Names are Christian, as Benjamin, or surnames, as Franklin. One Christian name N. 8. 179; 10 Miss. 391; Co. Litt. 3 a; 1 NAMIUM 267 NATIONAL BANKS 457; 25 Alb. L. J. 322, 323. The words movable goods. 2 Inst. 140; 3 Bla. Com. junior and senior are no part of a name; see 149. A distress. Dalrymple, Feud. Pr. 1 Pick. 388; 2 Caines, 165; 9 N. H. 519; 113. 22 Me. 171; 8 Conn. 280. The title Mrs. is not a legal name; 13 Vroom, 69. In general, a corporation must contract and sue, and be sued, by its corporate name; 8 Johns. 295; 14 id. 238; 19 id. 300; 4 Rand. 359. Yet a slight alteration in stating the name is unimportant if there be no possibility of mistaking the identity of the corporation suing; 12 La. 444. See 20 Me. 41; 2 Va. Cas. 362; 16 Mass. 141; 12 S. & R. 389. See MISNOMER. The real name of a party to be arrested must be inserted in the warrant, if known; 8 East, 828; 6 Cow. 456; 9 Wend. 320; if unknown, some description must be given; 1 Chitty, Cr. Law, 39, 40; with the reason for the omission; 1 Mood. & M. 281. As to mistakes in devises, see LEGACY. As to the use of names having the same sound, see IDEM SONANS; 1 Over. 434. As to the effect of using a name having the same derivation, see 2 Rolle, Abr. 135; 1 Wash. C. C. 285. At common law, one could change his name; 10 Fed. Rep. 894; 123 Mass. 415; 3 B. & Ald. 544. When a person uses a name in making a contract under seal, he will not be permitted to say that it is not his name: as, if he sign and seal a bond "A and B" (being his own and his partner's name), and he had no authority from his partner to make such a deed, he cannot deny that his name is A and B; 1 T. Raym. 2; 1 Salk. 214. And if a man describes himself in the body of a deed by the name of James, and signs it John, he cannot, on being sued by the latter name, plead that his name is James; 3 Taunt. 505; Cro. Eliz. 897, n. a. See 3 P. & D. 271; 11 Ad. & E. 594. The right to the exclusive use of a name in connection with a trade or business is familiar to the law; and any person using that name, after a relative right of this description has been acquired by another, is considered guilty of a fraud or at least an invasion of another's rights, and renders himself liable to an action, or he may be restrained from the use of the name by injunction. But the mere assumption of a name which is the patronymic of a family by a stranger who has never been called by that name is a grievance to the family for which the law affords no redress; per Lord Chelmsford, L. R. 2 P. C. 441. See 11 Beav. 112; L. R. 2 Ch. 307. A name may be a trade-mark; L. R. 10 Ch. D. 436; 1 Eq. 518; 13 Beav. 209; 13 Am. Rep. 111. A person cannot, however, have an exclusive right of trade-mark in a name as against all others bearing the same name, unless the defendant uses the same brand or stamp in connection with the name; 122 Mass.; 96 U. S. 245; 50 Barb. 236. See 11 Cent. L. J. 3; ELECTION; TRADE-MARK. NAMIUM. An old word which signifies the taking or distraining another person's NANTISSEMENT. In French Law. The contract of pledge; if of a movable, it is called gago, and if of an immovable, antichrèse; Brown, Dict. NARR (an abbreviation of the word nar ratio). A declaration in a cause. NARRATOR. A pleader who draws narrs. Serviens narrator, a serjeant-at-law. Fleta, 1. 2, c. 37. Obsolete. NARROW SEAS. In English Law. Those seas which adjoin the coast of England. Bacon, Abr. Prerogative (B 3). NASCITURUS. Not yet born. This term is applied in marriage settlements to the unborn children of a particular marriage, natus (born) being used to designate those already born. NATALE. The state or condition of a man acquired by birth. NATION. An independent body politic. A society of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. But every combination of men who govern themselves independently of all others will not be considered a nation; a body of pirates, for example, who govern themselves, are not a nation. To constitute a nation, another ingredient is required. The body thus formed must respect other nations in general, and each of their members in particular. Such a society has her affairs and her interests; she deliberates and takes resolutions in common,-thus becoming a moral peculiar to herself, and is susceptible of obligaperson, who possesses an understanding and will tions and rights. Vattel, Prelim. §§ 1, 2; 5 Pet. 52. It belongs to the government to declare whether they will consider a colony which has thrown off the yoke of the mother-country as an independent state; and until the government have decided on the question, courts of justice are bound to consider the ancient state of things as remaining unchanged; 1 Johns. Ch. 543; 13 Johns. 141, 561. See 5 Pet. 1; 1 Kent, 21. In American constitutional law the word state is applied to the several members of the American Union, while the word nation is applied to the whole body of the people embraced within the jurisdiction of the federal government; Cooley, Const. Lim. 1. 7 Wall. 720. See NATIONAL BANKS. Banks created and governed under the provisions of " The National Bank Act." See Rev. Stat. § 5133 et seq.; title 62. Congress, in the exercise of an undisputed constitutional power to provide a currency for the whole country, may constitutionally secure the benefit of it to the people by appropriate legislation, and to that end may restrain the circulation of any notes not issued under its public service. The states cannot exercise any control over them, except so far as congress may permit; 91 U. S. 29; see 40 Md. 269. National banks may purchase, hold, and convey real estate for the following purposes, and for no others: 1. Such as shall be necessary for its immediate accommodation in the transaction of its business. 2. Such as shall be mortgaged to it in good faith by way of security, for debts previously contracted. 3. Such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its dealings. 4. Such as it shall purchase at sales under judgments, decrees, or mortgages held by the association, or shall purchase to secure debts due to it; title in the latter case to be held for no longer than five years. authority; 8 Wall. 548; this power, long dormant, has been exercised by the National Bank Act. Any number of persons, not less than five, may organize a national bank. They must sign, acknowledge before a court of record or notary public, and transmit to the comptroller of the currency, an organization certificate, containing the name of the bank, its place of business, the amount of capital stock and the number of shares into which it is to be divided, the names and residences of the shareholders, and the number of shares held by them, and that the applicants desire to avail themselves of the act of congress. The comptroller decides whether the bank is lawfully entitled to begin business; see 19 Mich. 196; if he so finds, his certificate of this fact must be pub- It has been decided by the supreme court lished in a newspaper of the place where the of the United States that real estate security bank is to do business for sixty days. on a contemporaneous loan of money by a One hundred thousand dollars is the mini-national bank is valid between the parties; mum capital allowed, except in places not exceeding 6000 inhabitants, when, by consent of the comptroller, the capital may be $50,000; where the population exceeds 50,000 the capital must be at least $200,000. The term capital does not refer to borrowed money, but to the property or moneys of the bank permanently invested in its business; 7 Chi. L. News, 339. The capital stock is divided into shares of $100 each, which are personal property. At least fifty per cent. thereof must be paid in before organization, and the rest in monthly instalments of ten per cent. each. The stock of stockholders not paying these instalments may be sold, on notice; stockholders are individually responsible, in addition to what they have invested in their shares, for all contracts, debts, and engagements of the bank, to the extent of their stock at its par value. This liability is several and not joint; 8 Wall. 505. Upon its organization a national bank has the usual corporate powers, also the right of succession for twenty years, and the power to exercise, by its board of directors or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking; by discounting and negotiating promissory notes, etc.; by receiving deposits, by buying and selling exchange, coin and bullion; by loaning money on personal security; and by obtaining, issuing, and circulating notes according to the provisions of " title 62 of the Revised Statutes." The powers of national banks are to be measured by the act creating them; 18 Wall. 589; 72 Penn. 456; 62 Mo. 329; the words of the act above quoted, "by discounting and negotiating promissory notes, etc.," are not to be read as limiting the mode of exercising the "incidental powers" necessary to carry on the business of banking, but as descriptive of the kind of business which is authorized; 22 Ohio St. 516. National banks are designed to aid the government in the administration of an important branch of the 98 U. S. 621. See contra, 62 Mo. 329; 72 Penn. 456; 87 Ill. 151. A national bank may take a purchase money mortgage on real estate sold by it; 29 La. An. 355. The circuit courts of the United States have jurisdiction of all suits by or against national banks established in the district for which the court is held; R. S. 629; see 3 Dill. 298; irrespective of the amount in controversy or the citizenship of the parties; 19 Alb. L. J. 182. A national bank may bring suit in the circuit court out of its district, against a citizen of the district where the court sits; 8 Blatch. 137; 9 Nev. 134. A national bank may waive its right to be sued in its own district; 2 Conn. 298; and state courts have jurisdiction of suits brought by national banks; 49 Vt. 1; 93 U. S. 130: but this must be a state court of its locality; 14 Wall. 383; 101 Mass. 240. National banks may go into liquidation and be closed by a vote of the shareholders of two thirds of its stock; R. S. § 5220. In case of a failure to pay its circulating notes, the comptroller may appoint a receiver to wind up national banks; R. S. ¿ 5234. State banks may be changed into national banks; the change when made is a transit, and not a creation. See 40 Mo. 140. See DEPOSIT; INTEREST; PROXY; RESERVE. NATIONAL DOMAIN. See PUBLIC DOMAIN. NATIONALITY. Character, status, or condition with reference to the rights and duties of a person as a member of some one state or nation rather than another. The term is in frequent use with regard to ships. Nationality determined by one's birthplace or parentage is called nationality of origin; that which results from naturalization is by acquisition. A woman upon marriage ac quires the nationality of her husband; Morse on Citizenship, 142. In feudal times nationalty was determined exclusively by the place of birth, jure solis; but under the laws of Athens and Rome the child followed that of NATIVE the parents, jure sanguinis. "Of these two tests, the place of birth and the nationality of the father, neither is at present adopted without qualification by British, French, or American law. The laws of these countries exhibit, in fact, different combinations of the two, Great Britain and the United States laying chief stress on the place of birth, while in France the father's nationality determines, though not absolutely and in all cases, that of the child; and this latter theory has found acceptance among other European nations,' as Belgium, Bavaria, Prussia, and Spain. Morse on Citizenship, 10. 66 Perhaps no more correct general rule can be found than that recommended by Westlake. Legitimate children, wherever born, are regularly members of the state of which their parents form part the moment of their birth; but they may choose the nationality of the place of their birth." See 2 Kent, 49, n. 1; Cock. Nat.; Whart. Confl. Laws; Westlake, Priv. Int. Law. See, generally, ALLEGIANCE; CITIZEN; DENIZEN; DOMICIL; NATURALIZATION. NATIVE, NATIVE CITIZEN. 269 Α natural-born subject. 1 Bla. Com. 366. Those born in a country, of parents who are citizens. Morse, Citizenship, 12. A person born within the jurisdiction of the United States, whether after declaration of independence or before, if he did not withdraw before the adoption of the constitution; or the child of a citizen born abroad, if his parents have ever resided here; or the child of an alien born abroad, if he be in the country at the time his father is naturalized. 8 Paige, Ch. 433; 21 Am. L. Reg. 77; 2 Kent, 39. CITIZEN. See NATURAL AFFECTION. The affection which a husband, a father, a brother, or other near relative naturally feels towards those who are so nearly allied to him, sometimes supplies the place of a valuable consideration in contracts; and natural affection is a good consideration in a deed. 2 Steph. Com. 61. See BARGAIN AND SALE; COVENANT TO STAND SEIZED. NATURAL CHILDREN. Bastards; children born out of lawful wedlock. But in a statute declaring that adopted shall have all the rights of "natural" children, the word "natural" was used in the sense of legitimate; 9 Am. L. Reg. 747. In Civil Law. Children by procreation, as distinguished from children by adoption. In Louisiana. Illegitimate children who have been adopted by the father. La. Civ. Code, art. 220. NATURAL DAY. That space of time included between the rising and the setting of the sun. See DAY. NATURAL EQUITY. That which is founded in natural justice, in honesty and right, and which arises ex æquo et bono. It corresponds precisely with the definition of justice or natural law, which is a constant and NATURALIZATION perpetual will to give to every man what is his. This kind of equity embraces so wide a range that human tribunals have never attempted to enforce natural justice or equity wholly unprovided for, it. Every code of laws has left many matters of from the difficulty of framing general rules to meet them, from the almost impossibility of enforcing them, and from the doubtful nature of the policy of attempting to give a legal sanction to duties of imperfect obligation, such as charity, gratitude, or kindness. 4 Bouvier, Inst. n. 3720. NATURAL FOOL. An idiot; one born acquire them. without the reasoning powers or a capacity to NATURAL FRUITS. The natural production of trees, bushes, and other plants, for the use of men and animals, and for the reproduction of such trees, bushes, or plants. This expression is used in contradistinction to artificial or figurative fruits: for example, apples, peaches, and pears, are natural fruits; interest is the fruit of money, and this is artificial. NATURAL INFANCY. A period of non-responsible life, which ends with the seventh year; Whart. Dict. NATURAL LAW. The law of nature. The divine will, or the dictate of right reason, showing the moral deformity or moral necessity there is in any act, according to its suitableness or unsuitableness to a reasonable nature. Sometimes used of the law of human reason, in contradistinction to the revealed law, and sometimes of both, in contradistinction to positive law. They are independent of any artificial connections, and differ from mere presumptions of law in this essential respect, that the latter depend on and are a branch of the particular system of jurisprudence to which they belong; but mere natural presumptions are derived wholly by means of the common experience of mankind, without the aid or control of any particular rule of law, but simply from the course of nature and the habits of society. These presumptions fall within the exclusive province of the jury, who are to pass upon the facts. 3 Bouv. Inst. n. 3064; Greenl. Ev. § 44. NATURAL OBLIGATION. One which in honor and conscience binds the person who has contracted it, but which cannot be enforced in a court of justice. Pothier, np. 173, 191. See OBLIGATION. NATURAL PRESUMPTIONS. In Evidence. Presumptions of fact; those which depend upon their own form and efficacy in generating belief or conviction in the mind, as derived from those connections which are pointed out by experience. NATURALIZATION. The act by which an alien is made a citizen of the United States of America. The act of adopting a foreigner and clothing him with all the privileges of a native-born citizen. 9 Wheat. 827; 9 Op. Att. Gen. 359. A nation, or the sovereign who represents it, may grant to a stranger the quality of a citizen, by admitting him into the body of the political society. This is called naturalization. The constitution of the United States, art. 1, s. 8, vests in congress the power to establish a uniform rule of naturalization, and various laws have been passed in pursuance of this authority. See Rev. Stat. of U. S. The power to regulate naturalization is exclusive in the federal government; 7 How. 556; 5 Cal. 300; 19 How. 393. Before the adoption of the constitution, each state exercised the right to naturalize citizens. A state cannot make a citizen of the United States; 4 Dill. 425. A state may confer the right of citizenship on any one it thinks proper, but only so far as the state itself is concerned; 19 How. 393. By naturalization, a foreigner becomes, to all intents and purposes, a citizen of the United States, with no disability except that he cannot become president or vicepresident. The provision of the constitution applies to persons of foreign birth only; 19 How. 419; and not to a freeman of color, born in the United States; 26 Ind. 299. Indians may be naturalized by act of con gress; 19 How. 393; but the naturalization acts do not apply to Indians; 7 Op. Att. Gen. 746. Entire communities have been naturalized by a single act of national sovereignty; 36 Cal. 658. Congress may invest the state courts with jurisdiction to naturalize foreigners; 33 N. H. 89; and no state can confer jurisdiction on any court which does not come within the terms of the act of congress; 50 N. H. 245. An applicant for naturalization must have been a resident of the United States for five years next preceding his admission to citizenship, but uninterrupted habitation is not required. Courts of record, in naturalizing foreigners, act judicially, ascertaining the facts and applying the law to them; 4 Pet. 407; the certificate of naturalization is the usual proof of citizenship, though not the only proof. The judgment of the court, like every judgment, has been decided to be complete evidence of its own validity; id. The subject is fully discussed in Morse, Citizenship. Naturalization, of itself, confers no right of suffrage; Pars. Rights of an Amer. Citi zen, 190. The 14th amendment to the constitution provides that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. A married woman may be naturalized; 1 Cra. C. C. 372; even without the concurrence of her husband; 16 Wend. 617. See CITIZEN; ALLEGIANCE. NATURALIZED CITIZEN. One who, being born an alien, has lawfully become a citizen of the United States under the constitution and laws. In foreign countries he has a right to be treated as such, and will be so considered, even in the country of his birth, at least for most purposes; 1 B. & P. 430. See CITIZEN; DOMICIL; INHABITANT; NATURAL IZATION. NAUCLERUS (Lat.). Master or owner of a vessel. Vicat, Voc. Jur.; Calvinus, Lex. NAUFRAGE. In French Maritime 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 called naufrage. It differs from échouement, 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. Pardessus, n. 643. See WRECK. NAULUM (Lat.). 1 Pars. Mar. 1. 6, § 1, qui potiores in money. Freight or passage Law, 124, n.; Dig. pignore. NAUTA (Lat.). One who charters (exercet) a ship. L. 1, § 1, ff. nautæ, caupo; Calvinus, Lex. Any one who is on board a vessel for the purpose of navigating her. 3 Sumn. 213; Vicat, Voc. Jur.; 2 Emerigon, 448; Pothier, Pand. lib. 4, tit. 9, n. 2; lib. 47, tit. 5, nn. 1, 2, 3, 8, 10. A carrier by 2 Ld. Raym. 917. water. NAVAL LAW. A system of regulations for the government of the navy. 1 Kent, 377, n. Consult act of April 3, 1800; act of December 21, 1861; act of July 17, 1862; Homans, Nav. Laws; De Hart, CourtsMartial. NAVAL OFFICER. An officer of the customs of the United States. His office relates to the estimating duties, countersigning permits, clearances, etc., certifying the collectors' returns, and similar duties. NAVARCHUS, NAVICULARIUS (Lat.). In Civil Law. The master of an armed ship. Navicularius also denotes the Ver. 4, 55; also, a carrier by water (exercimaster of a ship (patronus) generally; Cic. tor navis). Calvinus, Lex. |