NISI PRIUS. These words, which signify 'unless before,' are the name of a
court. The name originated as follows: Formerly, an action was triable only
in the court where it was brought. But, it was provided by Magna Charta, in
ease of the subject, that assizes 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 assizes there. 1 Reeves, 246; 2 Inst. 422, 3, 4. These local
trials being found convenient, were applied not only to assizes, 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 justiciariis nostris apud Westm. in Octabis Seti
Michaelis, 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 event
of its not previously taking place in the county, before the justices
appointed to take the assizes. 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 assizes, 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.