nisi prius

Nisi Prius

[Latin, Unless before.]

A court of nisi prius is a court that tries questions of fact before one judge and, in some cases, a jury. In the United States, the term ordinarily applies to the trial level court where the case is heard by a jury, as opposed to a higher court that entertains appeals where no jury is present.

nisi prius

(knee-see pree-us) adj. Latin for "unless first," in some jurisdictions it means the original trial court which heard a case as distinguished from a court of appeals, as in court nisi prius. "Court of original jurisdiction" is often substituted for the term nisi prius. (See: original jurisdiction, trial court)

nisi prius

1 in English legal history a direction that a case be brought up to Westminster for trial before a single judge and a jury.

2 the writ giving this direction.

3 trial before the justices taking the assizes.

4 (US) a court where civil actions are tried by a single judge sitting with a jury as distinguished from an appellate court.

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.

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References in periodicals archive ?

Can the Court of Appeals consider an argument or claim that was not preserved in the nisi prius court but was nonetheless considered in the appellate division and in fact served as the basis for the appellate division's ruling in the case?

62) Although the majority's statement was now dictum rather than holding, the court once again: (a) characterized its limitation to preserved issues of law as jurisdictional in nature, and (b) said that the rule precluded consideration of an argument or issue not preserved in the nisi prius court even when the appellate division had elected to consider the issue.

Yet, if the nisi prius court exercises its discretion to allow surreply papers, that surely does not render the rulings thus reached discretionary as well.

148) However, that the nisi prius court was not obliged to convert the motion into one for summary judgment does not make the court's grant (or denial) of summary judgment into a discretionary ruling that is itself reviewable only for abuse of discretion.

150) Whereas there is no statute applicable to standard civil appeals that: (a) generally requires that the issue raised on appeal has been preserved in the nisi prius court, or (b) effectively defines "question of law" as a preserved issue of law, (151) the situation is different on the criminal side of the docket.

There is, in addition, the central point that an appellate court is supposed to pass on the wisdom and propriety of the lower court's ruling--this as opposed to sitting as a higher-level nisi prius court.

Even with respect to the one policy concern that has been mitigated--that the Court of Appeals would have the benefit of the appellate division's view on the substantive matter in issue--the court would still not have the benefit of a nisi prius ruling.

THE LEGISLATURE'S POWER TO CORRECT THE ANOMALY OF BENEFITTING FROM A FAILURE TO PRESERVE AN ARGUMENT FOR APPELLATE REVIEW