The price of silence

That dratted legal Latin again

Take one part old colonial handwriting, mix in one part bad transcribing, and toss with one part legal Latin.

Talk about a recipe for genealogical confusion!

shhhAnd that’s what was facing reader Alice Sanders in trying to understand a reference she found to a court order entered in Old Rappahannock County, Virginia, in December 1686.

The original reference she found to the order described it as a judgment “nil aicit.”

“What does it mean?,” she asked. “I could not guess at the meaning by the contents of the record.”

And neither could The Legal Genealogist. Not written that way.

My guess was that there was a letter or two either being misread (or miswritten by the clerk) and I needed to see it in context.

And, sure enough, a better transcription of that order read this way:

Judgmt. (upon nil dicit) is granted against XPHER BLACKBURNE to EDWARD THOMAS as Administr: of JOHN COLLINS deced for Three thousand foure hundred pounds of tobb & caske upon Receipt of Bills & Accts., to be pd with cost of suit als exe.1

Despite the fact that it’s that dratted legal Latin again, that version makes sense. It’s all a matter of silence.

A judgment nil dicit, Black’s Law Dictionary explains, is “a judgment rendered for the plaintiff when the defendant ‘says nothing;’ that is, when he neglects to plead to the plaintiff’s declaration within the proper time.”2

It’s sometimes written out in the long form nihil dicit, which means, in essence, “he says nothing. This is the name of the judgment which may be taken as of course against a defendant who omits to plead or answer the plaintiff’s declaration or complaint within the time limited. In some jurisdictions it is otherwise known as judgment ‘for want of a plea.’”3

In plain English, then, Edward Thomas was serving as the administrator of the estate of John Collins. In that capacity, he filed suit against Christopher Blackburne for 3,400 pounds of tobacco.

Blackburne, like any defendant, would have had a fixed amount of time within which to answer the complaint — to tell the court his side of the story and challenge what Thomas was saying he owed. And he didn’t do it.

So when the day came for the case to be heard, the court didn’t bother with a hearing — it simply entered judgment for the plaintiff since the defendant hadn’t done what he needed to do to answer.

The modern term for this kind of a judgment is default judgment: “a ruling granted by a court or judge… for example, when a defendant is summoned to appear before the court in a case brought by a plaintiff, but fails to respond to the court’s legal order…”4

Now, as back then in 1686, it’s the price a defendant in a civil suit pays for saying nothing.


SOURCES

  1. Ruth and Sam Sparacio, Order Book Abstracts of (Old) Rappahannock County, Virginia, 4 vols. (McLean, Va. : Antient Press, 1990).
  2. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 665, “judgment.”
  3. Ibid., 815, “nihil dicit.”
  4. Wex, Legal Information Institute, Cornell Law School (http://www.law.cornell.edu/wex : accessed 3 Feb 2014), “default judgment.”
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