Definition
In legal practice, nesses (singular: ness) refers to commissions issued out of a court in which an action is pending, directed to one or more individuals residing in the same location as witnesses who are beyond the territorial jurisdiction of the court. The commission authorizes those individuals to take the testimony of such witnesses in writing and return it to the issuing court.
The purpose of a ness is to secure the testimony of persons whose personal attendance at court cannot be compelled by subpoena — typically because they reside outside the court's jurisdictional reach. The commission is issued under the seal of the court and directed to persons in proximity to the witnesses, who act as local agents for the purpose of examination.
Common Language
Modern common usage (Wiktionary): Simply the plural of "ness," a geographical term referring to a headland or promontory projecting into a body of water.
Historical common usage (Webster's 1913): A promontory or headland; a cape.
The geographical term and the legal term share no connection. In legal contexts, "nesses" has nothing to do with geography. Researchers encountering the term in legal records or court documents should not import the common geographical meaning; the legal usage refers exclusively to procedural instruments for out-of-jurisdiction testimony.
Common Confusion
Nesses are closely related to, and frequently confused with, commissions to take depositions and letters rogatory. The distinctions matter for research:
A ness is a court-issued commission for obtaining testimony of witnesses beyond the court's territorial jurisdiction, directed to a local individual who takes the testimony in writing. Letters rogatory are a related but distinct mechanism — formal requests from one court to a court in another jurisdiction (including foreign courts) to take testimony or perform judicial acts on behalf of the requesting court. A general deposition commission may issue to named commissioners without the specific out-of-jurisdiction necessity that defines a ness. In historical sources, these instruments are sometimes used interchangeably or described with overlapping language, so researchers should read the procedural context carefully before assuming equivalence.
Why It Matters in Research
Researchers working in historical court records — particularly pre-twentieth century common law practice in England and early American jurisdictions — will encounter nesses as a standard procedural mechanism for handling absent witnesses. Several navigational points are important:
The term appears infrequently in modern legal materials. It is primarily a term of historical practice, and contemporary procedure has largely absorbed the function of nesses into modern deposition and letters rogatory frameworks. Researchers searching for this term in modern court documents will find little; the concept persists but the label does not.
In historical sources, the term may appear as "ness" in the singular when referring to a single commission or to the procedure generally. The plural "nesses" appears in discussions of the mechanism as a class of practice tool.
The definition in Burrill's is more complete than Black's and adds the important detail that the commission is directed to persons residing at the same place as the witnesses — clarifying that it is not simply a generalized commission but a geographically targeted instrument. Researchers relying solely on Black's abbreviated entry may miss the mechanism's operational structure.
Because nesses were used to take testimony outside the court's reach, records produced under a ness may appear in a different location than the main case file. Testimony collected under a ness would be returned to the issuing court and filed with the record, but if filing was incomplete or the return was lost, the deposition evidence may be missing from an otherwise complete case file.
Historical Dictionary Support
Black's and Burrill's are in substantial agreement on the core definition: a ness is a commission from a pending court, used to take testimony from witnesses beyond the court's jurisdictional reach. Burrill's adds procedural texture — the commission is issued under the court's seal, directed to individuals co-located with the witnesses, and authorizes those individuals to take testimony in writing and return it. Black's formulation is leaner but consistent.
Neither source provides significant historical depth on the origin or evolution of the instrument, nor do they address how the mechanism interacted with or was eventually displaced by statutory deposition practice or the development of letters rogatory doctrine. Researchers needing that evolutionary account will need to look beyond these two dictionaries to treatises on equity and common law procedure.
Both entries treat nesses as a term of practice without elaborating on the standards governing who could be appointed as a commissioner or the evidentiary weight of testimony so obtained. Those questions would have been governed by court rules and case law of the relevant jurisdiction.
Jurisdictional Note
Nesses were a feature of common law and equity practice in England and carried over into early American courts. As American procedural law was codified and modernized through the nineteenth and twentieth centuries, the specific mechanism of the ness was subsumed into statutory and rule-based frameworks for out-of-jurisdiction depositions. The term is not in active use in any American jurisdiction today.