NISI This phrase in English law is derived from an ancient writ in which the words occur. Previously to the time of Edward I., trials by assizes or juries could only take place in the curia regis, wherever the king happened to be resident, or before the justices in eyre on their septennial circuits through the several counties of England. But by the scat. 13 Edw. 1., cap. 30 (forming a part of that series of laws commonly called the Statute of Westminster 2), the judges were directed to take certain assizes, and also to try certain requests, by juries in every county not oftener than three times in every year ; but the statute required that the day and place in the county in which en issue was to be tried by the judges should be mentioned in the judicial writ which assembled the jury. Accordingly the Venire faeias, or writ for summoning the jury (commanding the sheriff to bring them to Westminster to try the particular cause in which issue had been joiued), contained a proviso, thus :—" We corn mend you that you cause to come before our justices at Westminster ou the morrow of All Souls, twelve lawful men, who, &c., unless before prius) that day, A.B. and C.D., our justices assigned for that pur pose, shall come to your county to take the assizes there." It was, in practice, always arranged that the day for the return of the jury at Westminster should be more distant than the day for taking the assizes in the county; and consequently the exception in the writ invariably took effect by the justices of assize coming into the county and trying the cause before the sheriff was called upon to obey it by returumg the jury to Westminster. [Assize.] From this clause in
the Venire facial, the phrase Nisi Prius came to be adopted as a general term descriptive of the large class of judicial business which is transacted before judges of the superior courts at the assizes. Thus the judges of assize are, when sitting alone to try causes, said to be sitting at Nisi Prius; and the LW relating to the various matters which arise before them is, somewhat indefinitely, called the Law of Nisi Prism. It is erroneously stated in our toxt-books that the judges on circuit act under a commission of Nisi Prius. This is a common error, derived however from high authority, as it is so stated by Bacon in his Essay on the use of the Law.' There is in truth no such com mission known to our law, the authority of the justices at Nisi Prism being incidentally annexed to the commissions of assize. In Middlesex the judges it at Nisi Prius by statute IS Eliz., e. 12; iu London by virtue of immemorial usage.