NOMINAL1 PLAINTIFF. One who is named as the plaintiff in an action, but who has no interest in it, having assigned the cause or right of action to another, for whose use it is brought.
2. In general, he cannot interfere2 with the rights of his assignee, nor will he be permitted to discontinue. the action, or to meddle3 with it. 1 Wheat. R. 233; 1 John. Cas. 411; 3 John. Cas. 242; 1 Johns. R. 532, n.; 3 Johns. R. 426; 11 Johns. R. 47; 12 John. R. 237; 1 Phil. Ev. 90; Cowen's note 172; Greenl. Ev. SS 173; 7 Cranch, 152.
NOMINATE CONTRACT, civil law. Nominate contracts are those which have a particular name to distinguish them; as, purchase and sale, hiring, partnership4, loan for use, deposit, and the like. Dig. 2, 14, 7, 1. Innominate contracts, (q. v.) are those which have no particular name. Dig. 19, 4, 1, 2 Code, 4, 64, 3.
NOMINATION5, This word has several significations. 1. An appointment; as, I nominate A B, executor of this my last will. 2. A proposition; the word nominate is used in this sense in the constitution of the United States, art. 2, s. 2, the president "shall nominate, and by and with the consent of the senate, shall appoint ambassadors," &c.
NOMINE POENAE, contracts. The name of a penalty incurred6 by the lessee7 to the lessor, for the non-payment of rent at the day appointed by the lease or agreement for its payment. 2 Lill. Ab. 221. It is usually a gross sum of money, though it may be any thing else, appointed to be paid by the tenant8 to the reversioner, if the duties are in arrear9, in addition to the duties themselves. Ham. N. P. 411, 412.
2. To entitle himself to the nomine paenae, the landlord must make a demand of the rent on the very day, as in the case of a reentry. 1 Saund. 287 b, note; 7 Co. 28 b Co. Litt. 202 a; 7 T. R. 11 7. A distress10 cannot be taken for a nomine paenae, unless a special power to distrain11 be annexed12 to it by deed. 3 Bouv. Inst. n. 2451. Vide Bac. Ab. Rent, K 4; Woodf. L. & T. 253; Tho. Co. Litt. Index, h. t.; Dane's Ab. Index, h. t.
NOMINEE13. One who has been named or proposed for an office. NON. Not. When prefixed to other words, it is used as a negative as non access, non assumpsit.
NON ACCEPTAVIT. The name of a plea to an action of assumpsit brought against the drawee of a bill of exchange upon a supposed acceptance by him. See 4 Mann. & Gr. 561; S. C. 43 E. C. L. R. 292.
NON ACCESS. The non existence of sexual intercourse14 is generally expressed by the words " non access of the husband to the wife which expressions, in a case of bastardy15, are understood to mean the same thing. 2 Stark16 Ev. 218, n.
2. In Pennsylvania, when the husband has access to the wife, no evidence short of absolute impotence of the husband, is sufficient to convict a third person of bastardy with tlie wife. 6 Binn. 283.
3. In the civil law the maxim17 is, Pater is est quem nupticae demonstrant. Toull. tom. 2, n. 787. The Code Napoleon, art. 312, enacts18, " que l'enfant concu pendant le mariage a pour pere le mari." See also 1 Browne's R. Appx. xlvii. 4. A married woman cannot prove the non access of her husband. Id. See 8 East, 202; 4 T. R. 251; 11 East, 132; 13 Ves. 58; 8 East, R. 193; 12 East, R. 550; 4 T. R. 251, 336; 11 East, R. 132; 6 T. R. 330.
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