nisi prius

nisi prius

: (nee-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 also: original jurisdiction trial court

NISI PRIUS, in English law, a term used to denote generally all actions tried before judges of the king’s bench division. For the history and meaning of this term see Assize. As a rule actions only are tried at nisi prius, and a judge is said to sit at nisi prius when he sits, usually in the king’s bench division, for the trial of actions. By a resolution passed by the judges of the king’s bench division in 1894 it was declared of the utmost importance that there should be at least three courts of nisi prius sitting continuously throughout the legal year – one for special jury causes, one for common jury causes, and one for causes without juries (see the Annual Practice). Nisi Prius Record was before the Judicature Acts the name of the formal copy of proceedings showing the history of the case up to the time of trial. After the trial it was endorsed with the postea, showing the result of the trial, and delivered by the officer of the court to the successful party, whose possession of the postea was his title to judgment. Since the Judicature Acts there is no nisi prius record in civil actions, the nearest approach to it being the deposit of copies of the’ pleadings’ for the use, ‘of the judge, and there is no postea, the certificate of the associate or master as to the result of the trial superseding it.

ni·si pri·us
   [nahy-sahy prahy-uhs, nee-see pree-uhs] Show IPA
noun Law .
Also called nisi prius court . a trial court for the hearing of civil cases before a judge and jury.
British Law .
a writ commanding a sheriff of a county to summon a jury and bring it to the court in Westminster on a certain day, unless the judges of assizes previously came to that county.
the clause with the words “nisi prius” introducing this writ.
the system of judicial circuits to which judges are assigned for local trials of civil and criminal cases. Free Toolbar
Define Nisi prius Instantly. Faster Page Loads With Fewer Ads.
1300–50; Middle English < Latin: literally, unless previously, unless before

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ni·si-pri·us, adjective ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~,26

Eschbach v. Eschbach, 56 NY 2d 167 – NY: Court of Appeals 1982
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56 N.Y.2d 167 (1982)
Donald Eschbach, Appellant,
Rita Eschbach, Respondent.

Court of Appeals of the State of New York.
Argued March 29, 1982.
Decided May 13, 1982.

Herbert J. Malach and Robert G. Schneider for appellant.

Edward D. Loughman, Jr., for respondent.


169*169JASEN, J.

The question to be resolved on this appeal is whether custody of the youngest child of the parties herein should be changed, along with that of her two older sisters, from her mother to her father.

Plaintiff, Donald Eschbach, and defendant, Rita Eschbach, were married on November 23, 1963. Donald Eschbach was granted a divorce on May 28, 1979 on the basis of the couple having lived separate and apart pursuant to a separation agreement for one year. (Domestic Relations Law, § 170, subd [5].) Custody of the three daughters of the marriage was granted to their mother pursuant to an oral stipulation of the parties entered in the minutes of the court at the inquest hearing held on January 16, 1979. The stipulation, which also provided visitation rights for the children's father, was incorporated but not merged in the judgment of divorce.

Events over the course of the next year indicated a progressive deterioration in the mother's relationship with her daughters. On several occasions, the two older girls, Karen and Ellen, ran away from defendant's home, either to their father's residence or to friends' homes. The record also reveals that the mother refused to allow the girls to participate in extracurricular activities at school and imposed severe limitations on what activities they could 170*170 participate in and with whom they were allowed to associate. Concerned that the children were being raised in an unhealthy atmosphere which was affecting their emotional and psychological development, the father commenced this action seeking a modification of the judgment of divorce to the extent of awarding him custody of his three daughters.

The trial court took testimony from both parents, representatives of the school, and the two older daughters. Although the youngest daughter, Laura, did not testify, she was interviewed by the court in camera, and a transcript of that proceeding is included in the record before us. Additionally, a report was prepared for the court by a probation officer who had interviewed the parties.

The trial court found that the mother's unreasonable demands and restrictions were jeopardizing the older daughters' emotional and intellectual development and that there was a total breakdown of communication between the older children and their mother. Furthermore, the court found that the strong prefrence to live with their father expressed by these children, who were age 16 and 14 at the time of the hearing, should be given consideration.

Although Laura, who was 10 at the time of the hearing, had not expressed a similarly strong preference to live with her father rather than her mother, the court recognized her strong desire to remain with her sisters. After considering all the factors presented, the court found that her best interests would be served by continuing her close relationship with her sisters and that a change of custody to her father was necessary under these circumstances.

On appeal, the Appellate Division agreed that "the antagonism [of the older] children * * * toward defendant and their strong preference to live with plaintiff" (83 AD2d 845, 846) required a change in custody for Karen and Ellen. That court, however, modified the judgment and ordered that Laura's custody remain with the mother because there was "nothing to suggest that defendant has been anything but a fit parent toward her." (Id.)

On this appeal, the father seeks custody of Laura. The mother has not sought a further appeal from that part of the order which affirmed the judgment awarding custody 171*171 of Karen and Ellen to the plaintiff. The question on this appeal is thus limited to which parent should have custody of Laura. We agree with the trial court that Laura's best interests require a change in her custody from her mother to her father.

Any court in considering questions of child custody must make every effort to determine "what is for the best interest of the child, and what will best promote its welfare and happiness". (Domestic Relations Law, § 70; Matter of Ebert v Ebert, 38 N.Y.2d 700, 702; Obey v Degling, 37 N.Y.2d 768, 769; Matter of Lincoln v Lincoln, 24 N.Y.2d 270; Bistany v Bistany, 66 AD2d 1026; Sandman v Sandman, 64 AD2d 698, mot for lv to app den 46 N.Y.2d 705; Matter of Saunders v Saunders, 60 AD2d 701.) As we have recently stated, there are no absolutes in making these determinations; rather, there are policies designed not to bind the courts, but to guide them in determining what is in the best interests of the child. (Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 93-95.)

Where the parties have entered into an agreement as to which parent should have custody, we have stated that "[p]riority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded" to that agreement. (Matter of Nehra v Uhlar, 43 N.Y.2d 242, 251.) This priority is afforded the first determination of custody in the belief the stability this policy will assure in the child's life is in the child's best interests. (Friederwitzer v Friederwitzer, supra, at p 94; Corradino v Corradino, 48 N.Y.2d 894; Matter of Nehra v Uhlar, supra; Obey v Degling, supra; Dintruff v McGreevy, 34 N.Y.2d 887; Aberbach v Aberbach, 33 N.Y.2d 592; People ex rel. Selbert v Selbert, 60 AD2d 692.) But as this court noted in Friederwitzer, "[n]o agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interests (People ex rel. Wasserberger v Wasserberger, 42 AD2d 93, 95, affd on opn below 34 N.Y.2d 660)." (Friederwitzer v Friederwitzer, supra, at p 95.) Thus, an agreement between the parties is but one factor to be weighed by the court in deciding whether a change of custody is warranted.

172*172The weight to be given the existence of a prior agreement depends on whether the prior disposition resulted from a full hearing by a trial court or was merely incorporated in the court's judgment pursuant to an uncontested stipulation. (Friederwitzer v Friederwitzer, supra, at pp 94-95.) This is particularly true where, as in this case, the rules of the court require that the decree specify that "as to support, custody and visitation, no such agreement or stipulation is binding" (22 NYCRR 699.9 [f] [4]) and that the court retains jurisdiction for the purpose of making such further custody decree "as it finds appropriate under the circumstances existing at the time application for that purpose is made to it". (22 NYCRR 699.9, Approved Forms, J13.) Since the court was not bound by the existence of the prior agreement, it has the discretion to order custody changed "when the totality of circumstances, including the existence of the prior award, warrants its doing so in the best interests of the child." (Friederwitzer v Friederwitzer, supra, at p 96.)

Primary among those circumstances to be considered is the quality of the home environment and the parental guidance the custodial parent provides for the child. (Matter of Ebert v Ebert, 38 N.Y.2d 700, 702, supra; Bistany v Bistany, 66 AD2d 1026, supra; Sandman v Sandman, 64 AD2d 698, mot for lv to app den 46 N.Y.2d 705, supra; Matter of Saunders v Saunders, 60 AD2d 701, supra.) While concerns such as the financial status and the ability of each parent to provide for the child should not be overlooked by the court, an equally valid concern is the ability of each parent to provide for the child's emotional and intellectual development. (Sandman v Sandman, supra; Porges v Porges, 63 AD2d 712; Matter of Saunders v Saunders, supra.)

In determining whether the custodial parent can continue to provide for the child's various needs, the court must be cognizant of the individual needs of each child. It is, of course, entirely possible that a circumstance such as a total breakdown in communication between a parent and child that would require a change in custody would be applicable only as to the best interests of one of several children. (Bistany v Bistany, supra; Sandman v Sandman, supra; 173*173Porges v Porges, supra.) To this end, it is important for the court to consider the desires of each child. But again, this is but one factor to be considered; as with the other factors, the child's desires should not be considered determinative. (Matter of Ebert v Ebert, supra, at p 702; Obey v Degling, 37 N.Y.2d 768, 770, supra; Dintruff v McGreevy, 34 N.Y.2d 887, 888, supra; Sandman v Sandman, supra.) While not determinative, the child's expressed preference is some indication of what is in the child's best interests. Of course, in weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. (See, e.g., Obey v Degling, supra, at p 770; Dintruff v McGreevy, supra, at p 888.)

Finally, this court has long recognized that it is often in the child's best interests to continue to live with his siblings. While this, too, is not an absolute, the stability and companionship to be gained from keeping the children together is an important factor for the court to consider. "Close familial relationships are much to be encouraged." (Matter of Ebert v Ebert, supra, at p 704.) "Young brothers and sisters need each other's strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful." (Obey v Degling, supra, at p 771; Matter of Gunderud v Gunderud, 75 AD2d 691; Bistany v Bistany, supra.)

The weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved in this type of dispute. Generally, such an evaluation can best be made by the trial court which has direct access to the parties and can supplement that information with whatever professionally prepared reports are necessary. "In matters of this character `the findings of the nisi prius court must be accorded the greatest respect' (Matter of Irene O., 38 N.Y.2d 776, 777)" (Matter of Ebert v Ebert, supra, at p 703; Bistany v Bistany, supra). Appellate courts should be reluctant to substitute their own evaluation of these subjective factors for that of the nisi prius court (People ex rel. Portnoy v Strasser, 303 N.Y. 539, 542; Bistany v Bistany, supra), and if they do, should articulate 174*174 the reasons for so doing. Similarly, the existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances. (Friederwitzer v Friederwitzer, 55 N.Y.2d 89, supra.)

Turning then to the facts of this case, we hold that the determination of the trial court that the totality of the circumstances warrants awarding custody of Laura to her father conforms to the weight of the evidence. The record indicates that although the mother is not an unfit parent for Laura, she is, under all the circumstances present here, the less fit parent. Thus, the trial court was not bound by the stipulation of the parties, but was free to, and indeed required to, review the totality of the circumstances to determine what would be in Laura's best interests. In doing so, the Trial Judge weighed the testimony of all the parties, including Laura, and considered the testimony of school officials and reports from a probation officer appointed by the court. The court made no specific finding that defendant was an unfit mother for Laura, but a finding that the mother was the less fit parent is implicit in its order to change custody and is supported by the record. Additionally, the trial court, while noting Laura's ambivalence as to which parent she would prefer to live with, gave significant weight to her strong desire to remain with her older sisters. The record indicates that all relevant factors, including the mother's ability to cope with raising children as they approach maturity and the father's desire to provide a fuller and more enriched environment for his daughters were considered. It is abundantly clear from the record that the trial court, in this case, made a careful and studied review of all the relevant factors. As the determination of the nisi prius court, we believe this holding should be accorded great deference on review.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court, Westchester County, reinstated.

Order reversed, etc.

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Court of Record


This writer concludes, from the definitions below, that a
court of record is a court which must meet the following

1. generally has a seal
2. power to fine or imprison for contempt
3. keeps a record of the proceedings
4. proceeding according to the common law (not statutes or codes)
5. the tribunal is independent of the magistrate (judge)

Note that a judge is a magistrate and is not the tribunal.
The tribunal is either the sovereign himself, or a fully
empowered jury (not paid by the government)


Black's Law Dictionary, 4th Ed., 425, 426



The person and suite of the sovereign; the place where the
sovereign sojourns with his regal retinue, wherever that may be.


Courts may be classified and divided according to several
methods, the following being the more usual:

those whose acts and judicial proceedings are enrolled, or
recorded, for a perpetual memory and testimony, and which have
power to fine or imprison for contempt. Error lies to their
judgments, and they generally possess a seal. Courts not of
record are those of inferior dignity, which have no power to fine
or imprison, and in which the proceedings are not enrolled or
recorded. 3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas
Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225;
Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v.
Davis, 96 Ohio St. 205, 117 N.E. 229, 231.

A "court of record" is a judicial tribunal having attributes
and exercising functions independently of the person of the
magistrate designated generally to hold it, and proceeding
according to the course of common law, its acts and proceedings
being enrolled for a perpetual memorial. Jones v. Jones, 188
Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass.,
171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y.
406, 155 N.E. 688, 689.


See 7 Cal Jur 571 for more info
about courts of record


Webster's New Practical Dictionary, 386 (1953)
G. & C. Merriam Co., Springfield, Mass.


A person holding official power in a government; as: a The
official of highest rank in a government (chief, or first,
magistrate). b An official of a class having summary, often
criminal, jurisdiction.


Merriam-Webster On-Line Dictionary


an official entrusted with administration of the laws


Black's Law Dictionary, 4th Ed., 1103


Person clothed with power as a public civil officer. State
ex rel. Miller v. McLeod, 142 Fla. 254, 194 So. 628, 630.

A public officer belonging to the civil organization of the
state, and invested with powers and functions which may be either
judicial, legislative, or executive. But the term is commonly
used in a narrower sense, designating, in England, a person
intrusted with the commission of the peace, and, in America, one
of the class of inferior judicial officers, such as justices of
the peace and police justices. Martin v. State, 32 Ark. 124; Ex
parte White, 15 Nev. 146, 37 Am.Rep. 466; State v. Allen, 83 Fla.
655, 92 So. 155, 156; Merritt v. Merritt, 193 Iowa 899, 188 N.W.
32, 34.

The word "magistrate" does not necessarily imply an officer
exercising any judicial functions, and might very well be held to
embrace notaries and commissioners of deeds. Schultz v.
Merchants' Ins. Co., 57 Mo. 336.


California Penal Code

7. Words and phrases….The following words have in this
code the signification attached to them in this section, unless
otherwise apparent from the context:….

9. The word "magistrate" signifies any one of the
officers mentioned in Section 808. ….

807. Magistrate defined. A magistrate is an officer having
power to issue a warrant for the arrest of a person charged with
a public offense. (Enacted 1872.)

808. Persons designated as magistrates The following
persons are magistrates:

1. The judges of the Supreme Court

2. The judges of the courts of appeal.

3. The judges of the superior courts.

4. The judges of the municipal courts.

5. The judges of the justice courts.


Black's Law Dictionary, 4th Ed., 1602, 1603


Old English Law

The witnesses or followers of the plaintiff. 3 Bl. Comm.
295. See Secta.

Modern Law
A generic term, of comprehensive signification, and applies
to any proceeding by one person or persons against another or
others in a court of justice in which the plaintiff pursues, in
such court, the remedy which the law affords him for the redress
of an injury or the enforcement of a right, whether at law or in
equity. See Kohl v. U.S., 91 U.S. 375, 23 L.Ed. 449; Weston v.
Charleston, 2 Pet. 464, 7 L.Ed. 481; Syracuse Plaster Co. v.
Agostini Bros. Bldg. Corporation, 169 Misc. 564 7 N.Y.S.2d 897.


Black's Law Dictionary, 4th Ed., 1677


The seat of a judge; the place where he administers justice.
The whole body of judges who compose a jurisdiction; a judicial
court; the jurisdiction which the judges exercise. See Foster v.
Worcester, 16 Pick. (Mass.) 81.


Webster's New Practical Dictionary, 707 (1953)
G. & C. Merriam Co., Springfield, Mass.

1. In ancient Rome, a magistrate whose special function was
to protect the interests of plebeian citizens from the patricians.
2. Any defender of the people.


Merriam-Webster On-Line Dictionary


1. the residence of a sovereign or similar dignitary
2: a sovereign and his officials and advisers as a
governing power
3: an assembly of the retinue of a sovereign
4: an open space enclosed by a building or buildings
5: a space walled or marked off for playing a game (as
tennis or basketball)
6: the place where justice is administered; also: a judicial
body or a meeting of a judicial body


A "minute order" issued by a judge is not part of the record.


The proceedings of the courts of common law are records. But every minute made by a clerk of a court for his own future guidance in making up his record is not a record. 4 Wash. C.C. 698. See 10 Penn. St. 157; 2 Pick. Mass. 448; 4 N. II. 450; 6 id. 567; 5 Ohio St. 545; 3 Wend. N.Y. 267; 2 Vt. 573; 6 id. 580; 5 Day, Conn. 363; 3 T. B. Monr. Ky. 63.

"The Common-Law Record consists of the Process, the Pleadings, the Verdict and the Judgment. After Judgment, such Errors were Reviewable by Writ of Error. Errors which occurred at the Trial were not part of the Common-Law Record, and could be Reviewed by a Motion for a New Trial, after Verdict and before Judgment; by Statute, such Errors could be Reviewed after judgment by incorporating them into the Record by means of a Bill of Exceptions. It was therefore essential to keep clearly in mind the distinction between Matter of Record and Matter of Exception.

"UNDER the ancient practice, the Proceedings in a litigated case were Entered upon the Parchment Roll, and when this was completed, the end product became known as the Common-Law Record. It consisted of Four Parts, the Process, which included the Original Writ and the Return of the Sheriff, by which the Court acquired Jurisdiction over the defendant; the Pleadings, presented by the Parties in the prescribed order to develop an Issue of Law or of Fact, and which included the Declaration and all subsequent Pleadings, together with the Demurrers, if any; the Verdict; and the Judgment. These Four Elements formed the Common-Law Record, but it should be observed that at the point where the Retrospective Motions come into play, the Record has not been developed beyond the Stage of Entering the Verdict upon the Roll. At this point it should also be recalled that between the time when the Pleadings Terminated in an Issue, which Joinder in Issue was duly Recorded on the Parchment Roll, and the time when an Entry of the Verdict was made, nothing was Recorded on the Parchment Roll. The reason for this was that between the Joinder of Issue and the Rendition of the Verdict, the Trial takes place, and what occurs during this Trial does not Appear upon the Face of the Common-Law Record. Thus, Offers and Rejection of Evidence, the Court’s Instruction of the Jury, or its Refusal to Instruct as requested by Counsel, or any Misconduct Connected with the Trial, such as Prejudicial Remarks on the Part of the Court, and the like—that is—any Error that occurs at the Trial—cannot be corrected by resort to the Common-Law Record because not Apparent Upon its Face. Such Errors were preserved only in the notes made by the Presiding Judge, or in his memory, and were reviewable, after Verdict and before Final Judgment, by a Motion for New Trial made before the Court En Banc at Westminster, within four days after the Commencement of the Next Term following the Rendition of the Verdict. As each of the Judges of the Court had Motions of a similar character coming up for decision from the Trials over which they had presided, the natural inclination of each Judge was to support the Rulings of his brother Jurists, and thus Overrule the Motion for a New Trial. Furthermore, Errors that occurred at the Trial were not Reviewable after Judgment on Writ of Error, because Not Apparent on any one of the Four Parts of the Common-Law Record. To remedy this Defect, Parliament enacted Chapter 31 of the Statute of Westminster II in 1285,6 which provided for Review of such Errors through the use of what came to be known as a Bill of Exceptions.

"Thus, it appears that in four out of five Retrospective Motions, the Court is permitted to consider only Defects Apparent Upon the Face of Part of the Common-Law Record—the Process, the Pleadings, and the Verdict—and Errors Occurring at the Trial were regarded as extraneous and not to be considered in rendering Judgment upon the Motions. Matters extraneous to or outside of the Record could be tested after Verdict and before Judgment only by a Motion for a New Trial. A distinction is made between Matter of Record and Matter of Exception, Matter of Record referring to those Errors Apparent upon the Face of the Common-Law Record and hence Reviewable after Final Judgment upon a Writ of Error, and Matter of Exception referring to those Errors which Occurred at the Trial, and were Not Apparent on the Face of the Common-Law Record, hence Reviewable after Final Judgment only by incorporating such Errors into the Record by means of a Bill of Exceptions, as authorized by Chapter 31 of the Statute of Westminster II in 1285."
Koffler: Common Law Pleading 567-568

Proceedings in courts of chancery are said not to be, strictly speaking, records; but they are so considered. Gresley, Ev. 101. And see 8 Mart. La. N. S. 303; 1 Rawle, Penn. 381; 8 Yorg. Tenn. 142; 1 Pet. C. C. 352.
Bouvier's Law Dictionary, 14th Ed. (1870)


In practice. A memorandum of what takes place in court, made by authority of the court. From these minutes the record is afterwards made up.

Toulier says they are so called because the writing in which they were originally was small; that the word is derived from the Latin minuta (scriptura), in opposition to copies which were delivered to the parties, and which were always written in a larger hand. 8 Toullier, n. 413.

Minutes are not considered as any part of the record. 1 Ohio, 268. See 23 Pick. Mass. 184.
Bouvier's Law Dictionary, 14th Ed. (1870)


A book kept by the clerk or prothonotary of a court, in which minutes of its proceedings are entered.
Bouvier's Law Dictionary, 14th Ed. (1870)



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